TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................2

TABLE OF AUTHORITIES .............................................................4
INTRODUCTION .............................................................................8
ISSUES PRESENTED .................................................................. 13
BACKGROUND FACTS RELEVANT TO THIS PETITION ...... 14
A. The Times’ Failed and Rushed Investigation
Leading Up to the Firing of Rall Within 24
Hours .......................................................................... 14

B. The Times’ First Defamatory Statements About

Rall: The July 28, 2015 “Note to Readers” ............... 15

C. Ted Rall’s Enhancement of the Audio Reveals

that Rall was Right, the Times was Wrong and
at the Anti-SLAPP Stage the Truth of Rall’s
Evidence Must be Assumed True.............................. 16

D. The Times Heard the Enhanced Audio

Recording, Stood by Rall’s Termination and
Published a Second Defamatory Article about
Rall .............................................................................. 18

SUMMARY OF REASONS WHY REVIEW SHOULD BE

GRANTED ...................................................................................... 21
LEGAL DISCUSSION ................................................................... 22
I. The Court Should Grant and Hold this Petition
Because Wilson v. CNN Controls the Outcome
Here ............................................................................ 22

II. The Court Should Grant Review in this Case to

Resolve A Question of First Impression: the
Application of the “True and Fair” Report
Privilege to a Report of a Police Investigation

2
 that becomes “Untrue and Unfair” once an
Intervening Event Reverses the Conclusion of
the Original Investigation ......................................... 27
CONCLUSION ............................................................................... 42
CERTIFICATE OF WORD COUNT ............................................. 44
EXHIBIT A ..................................................................................... 45
EXHIBIT B ..................................................................................... 82
PROOF OF SERVICE ................................................................... 87
SERVICE LIST .............................................................................. 88

3
 TABLE OF AUTHORITIES

Cases
1-800 Contacts, Inc. v. Steinberg
(2003) 107 Cal.App.4th 568 ........................................... 18, 20, 21
Ali v. L.A. Focus Publication et al.
(2003) 112 Cal.App.4th 1477 ..................................................... 26
Area 51 Productions Inc. v. City of Alameda
(2018) 20 Cal.App.5th 581 ......................................................... 40
Argentieri v. Zuckerberg
(2017) 8 Cal.App.5th 768 ........................................................... 27
Associated Press v. Labor Board
(1937) 301 U.S. 103 .................................................................... 25
Colt v. Freedom Communications
(2003) 109 Cal.App.4th 1551 ..................................................... 41
Crane v. The Arizona Republic
(9th Cir. 1992) 972 F.2d 1511 .................................................... 27
Dorsey v. National Enquirer, Inc.
(9th Cir. 1992) 973 F.2d 1431 .................................................... 32
Equilon Enterprises v. Consumer Cause Inc.
(2002) 29 Cal.4th 53 ................................................................... 41
Flatley v. Mauro
(2006) 39 Cal.4th 299 ................................................................. 40
Frisk v. Merrihew
(1974) 42 Cal.App.3d 319 ........................................................... 29
Green v. Cortez
(1984) 151 Cal.App.3d 1068 ....................................................... 39
Handelsman v. San Francisco Chronicle
(1970) 11 Cal.App.3d 381 ............................................... 28, 29, 30

4
Hausch v. Donrey of Nevada Inc. d/b/a Las Vegas Review-
Journal
(D.Nev.1993) 833 F.Supp.822 .................................................... 25
Herald News
(1985) 276 N.L.R.B. 605 ............................................................. 25
Imig v. Ferrar
(1977) 70 Cal.App.3d 48 ............................................................. 26
Issa v. Applegate
(2019) 31 Cal.App.5th 689 ......................................................... 40
Jennings v. Telegram-Tribune Co.
(1985) 164 Cal.App.3d 119 ......................................................... 30
J-M Manufacturing Co. Inc. v. Phillips & Cohen LLP
(2016) 247 Cal.App.4th ........................................................ 30, 37
Kyle v. Carmon
(1999) 71 Cal.App.4th 901 ......................................................... 41
MacLeod v. Tribune Publishing Co.
(1959) 52 Cal.2d 536 ................................................................... 29
McClatchy Newspapers Inc. v. Superior Court
(1989) 189 Cal.App.3d 961 ................................................... 31, 39
Miami Herald v. Tornillo
(1974) 418 U.S. 241 .................................................................... 25
Microsoft Corp. v. Yokohama Telecom Corp.
(C.D.Cal. 1998) 993 F.Supp. 782 ............................................... 27
Nam v. Regents of the University of California
(2016) 1 Cal.App.5th 1176 ....................................... 10, 23, 24, 42
Nygard Inc. v. Uusi-Kerttula
(2008) 159 Cal.App.4th 1027 ............................................... 35, 36
Okorie v. LAUSD
(2017) 14 Cal.App.5th 574 ......................................................... 40
Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057 ............................................... 10, 23, 40, 42

5
Passaic Daily News v. N.L.R.B.
(D.C. Cir. 1984) 736 F.2d 1543 .................................................. 25
Pierce v. San Jose Mercury News
(1989) 214 Cal.App.3d 1626 ....................................................... 29
Reilly v. Gillen
(1980) 176 N.J.Super. 321 .......................................................... 34
Schiavone Construction Co. v. Time Inc.
(3rd Cir. 1988) 847 F.2d 1069 .................................................... 34
Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226 ......................................................... 31
Soukup v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260 ................................................................. 40
Wilcox v. Superior Court
(1994) 27 Cal.App.4th 809 ......................................................... 41
Wilson v. Cable News Network, Inc.
(2016) 6 Cal.App.5th 822 ....................................................passim
Winslett v. 1811 27th Avenue LLC
(2018) 26 Cal.App.5th 239 ......................................................... 40

Statutes
Civil Code, section 47..............................................................passim
Code of Civil Procedure, section 425.16 ........................................ 40

Federal Statutes
42 U.S. Code Sec. 1983 .................................................................. 26

Rules
Rules of Court, Rule 8.204 ............................................................. 11
Rules of Court, Rule 8.500 ............................................................. 42

6
Rules of Court, Rule 8.512 ................................................. 11, 13, 42

Constitutions
California Constitution, Article I, section 16 ............................... 41

Other Authorities
“When Truth and Accuracy Diverge: The Fair Report of a
Dated Proceeding”, 34 Stanford L. Rev. 1041 (1982) ... 27, 33, 39
5 Witkin, Summary 11th Torts, Section 690 ................................ 29
California Civil Practice (Thomson/West 2018) Torts,
Section 21:36 ......................................................................... 27, 30
Foundation for Audio Recordings as Evidence, 23 Am.Jur.
Proof of Facts 3d 315 (1993, updated 2018) ........................ 36, 38
Restatement (Second) of Torts, Section 611 ................ 28, 29, 34, 42

7
S

IN THE
SUPREME COURT OF CALIFORNIA

FREDERICK THEODORE RALL III,

Petitioner,

v.

TRIBUNE 365, LLC, et al.

Respondents.

After a Decision by the Court of Appeal

Second Appellate District, Division Eight
Case No. B284566

PETITION FOR REVIEW

INTRODUCTION
For six years, Petitioner Ted Rall was a respected and
award-winning political cartoonist employed by the Los Angeles

8
Times. (3AA 674, 676.) 1 His job was to speak truth to power. One
of his frequent targets was the Los Angeles Police Department
and its police chief, Charlie Beck. (3AA 680 ¶ 39.)
Rall drew hundreds of political cartoons for the Times’
print newspaper without incident. (3AA 679.) In addition, he
wrote hundreds of accompanying blogs about those cartoons; the
blogs ran in the Times’ electronic version, appearing at
latimes.com. (3AA 679.)
In July 2015, Rall’s editor assigned him to draw a cartoon
and accompanying blog that criticized the latest LAPD
“crackdown” on jaywalking. (3AA 688.) Rall’s resulting blog post
described his experience in LA fourteen years earlier, in 2001,
when he was roughly arrested and handcuffed for jaywalking and
the rude mistreatment prompted onlookers to angrily complain to
the officer. (3AA 688.) Rall filed a complaint with the LAPD in
2001 but nothing came of it. (3AA 687.)
Unsurprisingly, Chief Beck did not care for Rall’s
jaywalking blog or his numerous other cartoons making fun of
the LAPD and him personally. Beck met with the Times’ then-
publisher, Austin Beutner, and handed him a copy of Rall’s
internal affairs complaint file. (1AA 231.) Beck provided Beutner

1 Citations to the record herein take the form of “[volume]AA

[page]” for the Appellant’s Appendix and “[date] RT [page]” for
the Reporter’s Transcript.

9
with a digital copy of a recording the policeman secretly made of
Rall’s 2001 detention. (1AA 231.)
Chief Beck told Beutner that Rall lied about being treated
roughly by the cop. (3AA 690.) As will be shown, the audio proved
the exact opposite: that Rall told the truth. (3AA 706.) At Beck’s
instigation, the Times fired Rall and ran two articles that falsely
accused Rall of lying about the 2001 detention by the LAPD in
the July 2015 blog post. (3AA 696; 16AA 4927; 17AA 5310.)
Neither article mentioned Chief Beck’s role.
Rall sued the Times, Beutner and others asserting
employment and defamation claims. The trial court granted anti-
SLAPP motions by the Times and the individual defendants. In a
published opinion by Justice Grimes, attached as Exhibit “A,” the
Second District Court of Appeal affirmed the orders granting the
anti-SLAPP motions. This Petition seeks review of that Court of
Appeal decision.
With regard to Rall’s employment claims, the trilogy of
cases of Nam v. Regents of the University of California (2016) 1
Cal.App.5th 1176 (“Nam”), Wilson v. Cable News Network, Inc.
(2016) 6 Cal.App.5th 822 (“Wilson”), and Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057
(“Park”) establishes that defendants cannot satisfy the first prong
of the anti-SLAPP analysis. Wilson is currently pending oral

10
argument 2 before this Court (review granted March 1, 2017,
S239686). Factually, and legally, Wilson is on all fours, and
therefore, this petition is a “grant and hold” request pursuant to
Rule 8.512 (d)(2).
Rall’s defamation claims go to the second prong of the anti-
SLAPP analysis. The digital audio provided by Beck is mostly
unintelligible, yet the Times jumped to the erroneous conclusion
that it depicts a “polite interaction.” (1AA 64.) Because the sound
quality of the recording presented by the LAPD is poor, it is
difficult to hear evidence that Rall was handcuffed and that
angry bystanders were shouting at the officer, as Rall wrote in
his blog.
After being summarily fired, however, Rall paid to have the
audio recording enhanced (cleaned up scientifically) by an audio
expert for a company working with major Hollywood studios, Post
Haste Digital. (3AA 707.) That enhanced recording’s transcript 3
reveals and confirms the handcuffing and angry citizenry. Rall’s
blog, it turns out, had been truthful and accurate. Rall’s efforts at

2On February 5, 2019, this Court sent an oral argument letter to

the parties in Wilson advising them that oral argument could be
set within 12 months.
3Pursuant to California Rules of Court, Rule 8.204(d), Rall
provides this Court that transcript as an attachment to this brief
as Exhibit “B.”

11
demanding a retraction and reinstatement were nevertheless
ignored and rebuffed.
In a case of first impression in California, despite holdings
to the contrary in every other jurisdiction and in secondary
sources, the Second District held as a matter of law that the Civil
Code section 47(d) privilege for “fair and true” reporting can be
extended to immunize the Times’ false reports of a public
investigation (the LAPD investigation of Rall’s complaint in
2001), even if subsequent to the original investigation an
intervening event (the 2015 enhanced audio recording)
dramatically reverses the original conclusion (eliminates the “gist
or sting”) and creates a factual dispute. Contrary to the Times’
oft-repeated argument in this case that the truth is irrelevant,
this petition argues that the truth, and science, must prevail.

12
 ISSUES PRESENTED
Wilson (grant and hold pursuant to Rule 8.512(d)(2))
1. Does the reasoning and holding in Wilson, now
pending before this Court (review granted March 1, 2017, held
pending decision in Park), defeat the anti-SLAPP motions in this
case?
2. Subsumed in the above issue is this question: Can
employees of media companies who provide content be fired,
discriminated against, retaliated against or defamed simply
because the employer has a First Amendment right not to publish
the employees’ future work?

Civil Code Section 47(d)

3. Will the “absolute” true and fair report privilege be
defeated by an intervening event that materially impacts the
truth and accuracy of the original public investigation?
4. With regard to the characterization of the
intervening event, must a court, presented with an anti-SLAPP
motion, assume the truth of the plaintiff’s proffered evidence,
thus defeating the Civil Code section 47(d) privilege because of
the factual dispute presented by the intervening event?

13
 BACKGROUND FACTS RELEVANT TO THIS PETITION
A. The Times’ Failed and Rushed Investigation
Leading Up to the Firing of Rall Within 24
Hours
Upon receipt of the LAPD internal affairs file from Chief
Beck, Beutner ordered an investigation to determine if Rall’s blog
had been fabricated. (1AA 231.) The Times’ investigation
consisted of two phases.
During the first phase, the Times’ reporter Paul Pringle
interviewed Rall by telephone and provided Rall with copies of
the LAPD file. (3AA 689-93.) Rall adamantly stuck to his blog’s
description of the 2001 events. (3AA 689-93.) Pringle was
skeptical, saying that the copy of the audio recording of the arrest
appeared to reflect a polite interaction. (3AA 689-93.) The
arresting officer, also interviewed by Pringle, denied ever
handcuffing a jaywalker. (3AA 694-95.) In addition, Pringle
received a second audio recording, that of the LAPD internal
affairs investigator’s purported calls and messages left on an
answering machine. (3AA 687.) To Pringle, this appeared to
reflect a good-faith attempt by the LAPD to reach Rall. (3AA
687.)
Rall repeatedly stated that he had written the truth and
insisted that he was never contacted by any LAPD investigator.

14
(3AA 687.) 4 He pointed out to Pringle that the recording of the
internal affairs investigator demonstrated that the calls were
made to a wrong number. The voice on the answering machine
was a non-native male English speaker! Pringle ignored this.
(3AA 687.)
Because the issue had become a “he said, he said” contest,
Rall volunteered to submit to, and pay for, a polygraph
examination of the Times’ choice. (3AA 695.) This offer was
likewise ignored. (3AA 695-97.) This first phase of the Times’
investigation was concluded within 24 hours. At that point the
decision was made to fire Rall for fabrication, journalism’s worst
sin, and to shame him before the public. (3AA 696-97.)

B. The Times’ First Defamatory Statements About

Rall: The July 28, 2015 “Note to Readers”
On July 28, 2015, immediately after Rall’s dismissal, the
Times published “A Note to Readers” on its Opinion page. (3AA
697; 16AA 4923.) The Note to Readers relies on the two audio
recordings in challenging Rall’s allegations, in which evidence of
handcuffs and angry onlookers is hard to hear: “The tape depicts

4 Whether the LAPD investigator ever attempted to contact Rall

is yet another conflict in fact that should have been resolved in
Rall’s favor at the anti-SLAPP stage rather than assuming the
Times and LAPD’s version was true.

15
a polite interaction,” the Times told readers. (16AA 4923.) The
Times went on:
In addition, Rall wrote in his blog post that the LAPD
dismissed his complaint without ever contacting him.
Department records show that internal affairs
investigators made repeated attempts to contact Rall,
without success. Because serious questions have been
raised about the accuracy of the blog, the piece should
not have been published. Rall’s future work will not
appear in the Times. The Los Angeles Times is a
trusted source of news because of the quality and
integrity of the work its journalists do. This is a
reminder of the need to remain vigilant about what
we publish.

(16AA 4923, emphasis added.)

C. Ted Rall’s Enhancement of the Audio Reveals

that Rall was Right, the Times was Wrong and
at the Anti-SLAPP Stage the Truth of Rall’s
Evidence Must be Assumed True
The Times’ July 28, 2015 allegation of fabrication against
Rall is provably false. Rall hired a Hollywood film industry
expert, Post Haste Digital, to enhance the audio recording and
that scientific process revealed additional words and sounds not
previously discernable. (3AA 706.) The transcript was presented
to the trial court and appellate court. (3AA 706-07.) The expert’s
transcript of the enhanced audio reveals that Rall was in fact

16
handcuffed, just as Rall wrote in the blog, and that various
boisterous and critical bystanders were engaging the arresting
officer, again, just as Rall wrote in the blog. (3AA 706.) Here are
some excerpts, omitting some extreme cursing:
3:17.756 — Woman 1: “Why’d you handcuff him?”
3:37.864 — Woman 2 to Police Officer: “Don’t think about
his family.”
3.39.621 — Rall: “I have a right to a …”
3:43.500 — Woman 1: “Yeah!”
3:46.442 — Woman 2: “So he’s really detaining him?”
3:47.000 — Woman 3: “He was just jaywalking…you need
to take off…no, take off his handcuffs!”
3:54.073 — Police Officer: “No no no no. First, I’m giving
him a ticket.”
3:57.179 — Woman 3: “Then take off….”
4:04.845 — Woman 2: “Let’s go murder some widows!”
4:06.730 — Woman 3: “Stop it!” (shouting)
4:07.063 — Police officer: “I’m doing the right thing.”
4:23.450 — Woman 2, to police officer: “I mean, don’t you
got other problems going on in L.A. right now?”
4:27.114 — Police officer: “Not especially.”
4:28.192 — Woman 2: “Well go over there.”
4:31.198 — Police officer: “Oh I feel really scared.”
(3AA 706-07.)

17
 One of the biggest flaws in the trial court and appellate
decisions below was the failure to accept the truth of these
statements as is required at the anti-SLAPP stage. Rall’s
evidence is to be believed for purposes of assessing his prima
facia showing. (1-800 Contacts, Inc. v. Steinberg (2003) 107
Cal.App.4th 568, 585.) The transcript above conflicts with the
LAPD’s account of a friendly encounter with Rall. And that
conflict cannot and should not be resolved at the anti-SLAPP
stage. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th
at p. 585.)

D. The Times Heard the Enhanced Audio

Recording, Stood by Rall’s Termination and
Published a Second Defamatory Article about
Rall on August 19, 2015
Instead of reinstating Rall, or contacting him and/or Post
Haste Digital, the company that enhanced the LAPD audio, the
Times initiated the second phase of its investigation and doubled
down on Rall’s firing for fabrication. The Times published a
second article describing Rall as a fabulist. (17AA 5310.) The
Times published this article on August 19, 2015 despite
numerous red flags that indicated that their facts were wrong,
and their rushed investigation was fatally flawed:

18
 1. First and foremost is Exhibit B, the enhanced audio
recording of the arrest that vindicates Rall;
2. The refusal of the Times to accept Rall’s offer of
polygraph examination;
3. The recording of the LAPD internal affairs
investigator that reveals that the investigator was calling a
wrong number;
4. In its rush to judgment, the avoidance of traditional
due process protocols at the Times as required by the Times’
Ethical Guidelines. (17AA 5397.) Rall was never interviewed face
to face. None of Rall’s supervisors were interviewed to determine
Rall’s credibility. (3AA 698.) The Times’ Editorial Board, the
usual venue for personnel and ethics issues, was bypassed. (3AA
692.);
5. Beutner himself had violated the Times’ internal
ethics rules by permitting Chief Beck and the Police Protective
League to honor him and give him an LAPD award at a dinner; 5
and

5The publisher should never have accepted any honor from the
LAPD. It violated the Times’ ethical guidelines. Those guidelines
preclude any “activity, relationship, investment or affiliation that
reasonably could be perceived as affecting” judgment or creating
a bias. (12AA 3724.)

19
 6. In the intervening 14 years between the detention
and his firing, Rall had published several accounts of his arrest,
all consistently reporting the handcuffing and irate bystanders.
The second article purported to consider Rall’s point of
view, but instead confirmed the initial firing decision. Its
headline: “Times reaffirms decision that Ted Rall’s blog post did
not meet its standards.” (17AA 5310.) The Times claims to have
hired its own experts who, along with an LAPD expert, dispute
the enhanced audio recording provided by Rall. (17AA 5310.) In
resolving the anti-SLAPP motion below, the trial court and the
Second District essentially believed the unseen report of experts
from the Times over Rall’s audio expert, Post Haste. This conflict
in expert testimony was for a jury, not for a trial judge ruling on
an anti-SLAPP motion. (1-800 Contacts, Inc. v. Steinberg, supra,
107 Cal.App.4th at p. 585.)

20
 SUMMARY OF REASONS WHY REVIEW SHOULD BE
GRANTED
What is presented here is a classic case for jury decision-
making. (1-800 Contacts, Inc. v. Steinberg, supra, 107
Cal.App.4th at p. 585.) There is a raging factual dispute as to
what really happened at the time of Rall’s 2001 arrest. A jury will
not only have to judge Rall’s credibility, but there will be a battle
of experts, relying on accepted scientific methodology, to
determine what actually occurred. Additionally, there is a jury
issue as to the defamatory impact of the two articles, as well as
the issue of malice. Simply put, if Rall’s transcript of his 2001
encounter (Exhibit B) is accurate, Rall’s blog was truthful and he
never should have been fired and his professional reputation
destroyed by false allegations of fabrication.
He deserves his day in court.
Despite this, Justice Grimes’ opinion denies Rall’s right to a
jury determination as to all defendants on all causes of action.
Although there were many issues raised and decided below, this
petition addresses only two: the controlling applicability of
Wilson v. CNN, and the unique expanded application of Civil
Code section 47(d).

21
 LEGAL DISCUSSION
I. The Court Should Grant and Hold this Petition
Because Wilson Controls the Outcome Here
The holding in Wilson concerns the first prong of anti-
SLAPP analysis, determining whether the cause of action arises
out of or in furtherance of the first amendment. The facts in
Wilson are strikingly on point here:
Wilson was a CNN reporter who had published 200 articles
under his by-line in the electronic version of CNN,
CNN.com. In addition to his cartoons, Rall was a regular
blog writer for the electronic version of the Times,
latimes.com — and it is Rall’s blog at latimes.com, not his
cartoons, that is at issue.
Wilson was fired for alleged plagiarism, but he believed the
real reason was race and age discrimination and
retaliation. Rall was fired for alleged fabrication, but he
believes the real reason was retaliation by proxy — to curry
favor with the chief of police, a political ally of the
publisher and the head of a government agency whose
pension fund was a major shareholder of his employer’s
parent company.
Both Wilson and Rall were defamed during the
employment termination process.

22
 Both Wilson and Rall were at-will employees working
without a contract.
Both Wilson and Rall wrote about issues of public interest
and importance, and their allegedly plagiarized or
fabricated articles addressed an issue of public importance
in the criminal justice arena (in Wilson’s case, the legal
problems of Sheriff Baca; in Rall’s, police overreaction to
jaywalking). Nevertheless, neither Wilson’s nor Rall’s firing
is a matter of public interest or importance, nor does it
arise out of First Amendment activity. The fact that both
Wilson and Rall have by-lines and Rall signs his cartoons
does not transform private persons to public figures. Even
“famous” cartoonists like the creator of Garfield are
unknown to the general public. 6
Accordingly, neither defendant in Wilson or Rall has
satisfied the first prong of the anti-SLAPP statute; the motions
should not have been granted.
Wilson is part of a trilogy of cases, beginning with Nam,
leading to Wilson, and culminating with Park, in which appellate

6 Neither court below addressed the issue of Rall’s status as a

public figure vel non. For purposes of this petition the status is
irrelevant because there is more than a prima facie case proving
malice. A jury will have to decide whether the rejection of the
enhanced audio recording was reckless, along with ignoring all
the other red flags outlined infra.

23
courts, including this one, have restricted the abuses of the anti-
SLAPP statute in the employment context. As the court said in
Nam:
Any employer who initiates an investigation of an
employee, whether for lawful or unlawful motives,
would be at liberty to claim that its conduct was
protected and thereby shift the burden of proof to the
employee who, without the benefit of discovery and
with the threat of attorneys fees looming, would be
obligated to demonstrate the likelihood of prevailing
on the merits.

(Nam at 1189.)
In Park this Court quoted from Nam with approval, and
held that a university’s tenure decision, even though evidence of
that decision consisted of First Amendment-protected materials,
nevertheless did not arise out of the First Amendment. Likewise,
the decision to fire Rall was a private personnel decision made in
secret, of no public interest or importance until the Times itself
chose to make a public issue of it by publishing defamatory
explanations for their actions.
The opinion below attempted to distinguish Wilson in one
footnote at page 32: “Here, plaintiff has no discrimination or
retaliation claims under FEHA. And, as with the Hunter case,
staffing decisions to determine who shapes the way news is
presented is a far cry from the right to choose what to print and
what not to print.” This is not a meaningful distinction. Both Rall

24
and Wilson were writers who were fired. If there were an
absolute right to fire content providers under the rubric of the
press freedom to publish whatever it wants, then media
employees who provide content could be discriminated against,
retaliated against and defamed with impunity. That cannot be
the law.
The viability of Rall’s claims against the Times is
completely consistent with the holding in Miami Herald v.
Tornillo (1974) 418 U.S. 241; Rall recognizes the absolute right to
publish or not. But courts faced with discrimination claims by
media content providers have traditionally crafted remedies that
balance the press’ First Amendment right against the employee’s
right not to suffer retaliation or discrimination. See, Associated
Press v. Labor Board (1937) 301 U.S. 103 (labor organizer
journalist pretextually fired for biased reporting, ordered
reinstated); Hausch v. Donrey of Nevada Inc. d/b/a Las Vegas
Review-Journal (D.Nev.1993) 833 F.Supp.822 (fired editor
ordered reinstated following claim of sex discrimination); Passaic
Daily News v. N.L.R.B. (D.C.Cir. 1984) 736 F.2d 1543, followed
by Herald News (1985) 276 N.L.R.B. 605, 606 (union activist
columnist fired on a pretext; reinstatement order said: “Restore
Mitchell Stoddard immediately to the column-writing duties he
enjoyed prior to his demotion and decide whether to publish his
submissions based on any factors other than his union or

25
protected activity.”) Rall is not seeking reinstatement. He seeks
damages for, inter alia, defamation and wrongful termination as
against public policy. Rall was a frequent critic of the police;
then, under the pretext of alleged fabrication, the police chief, in
league with the publisher, got him fired. Rall is in the same
position as any whistleblower, retaliated against by the police,
and by extension the L.A. Times as an accommodation, for
making an unwelcome complaint.
Rall’s complaint to the police is privileged under Civil Code
section 47(b). (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55.)
Retaliation for accusing a cop of unnecessary roughness is
prohibited. Moreover, crushing political speech is a civil rights
violation. The chief and the publisher have exposure under 42
U.S. Code Sec. 1983. See also, Ali v. L.A. Focus Publication et al.
(2003) 112 Cal.App.4th 1477, in which a journalist was fired at
the request of a politician for unpopular political speech; held,
case could go to the jury on wrongful termination claim. Simply
because Wilson also had a FEHA claim is no basis for
distinguishing the holding in that case from this case. Rall looks
forward to the clarification of anti-SLAPP holdings in the
employment arena that will flow from the decision in Wilson and
its companion cases.

26
 II. The Court Should Grant Review in this Case to
Resolve A Question of First Impression: the
Application of the “True and Fair” Report
Privilege to a Report of a Police Investigation that
becomes “Untrue and Unfair” once an Intervening
Event Reverses the Conclusion of the Original
Investigation
The classic example of this principle is a newspaper report
of a criminal conviction. If the conviction was overturned on
appeal or the defendant otherwise exonerated, it is defamation to
thereafter refer to the conviction without mentioning the
exoneration. See Note, “When Truth and Accuracy Diverge: The
Fair Report of a Dated Proceeding”, 34 Stanford L. Rev. 1041
(1982), and cases cited therein.
Although no California court has, until this case, been
presented with this exact issue, California courts have embraced
the general principle that the privilege will be suspended if the
deviation in the report is of such a “substantial character” that it
“produce[s] a different effect” on the reader. (Argentieri v.
Zuckerberg (2017) 8 Cal.App.5th 768, 787-88, quoting Microsoft
Corp. v. Yokohama Telecom Corp. (C.D.Cal. 1998) 993 F.Supp.
782, 784; Cal. Civil Practice (Thomson/West 2018) Torts, Sec.
21:36. See Crane v. The Arizona Republic (9th Cir. 1992) 972 F.2d
1511, 1524 (applying California law to hold “fair and true” report

27
privilege inapplicable because editing materially altered the
tenor of the story).)
As held in Handelsman v. San Francisco Chronicle (1970)
11 Cal.App.3d 381,387, the report must not be garbled, and it
must not omit a part of the proceedings such that its “natural and
probable” effect on readers is substantially different from what
they would have gathered from a complete presentation.
The Restatement (Second) of Torts Section 611 concerns
“Report of Official Proceeding or Public Meeting.” Subsection f.
Accuracy and fairness of report, says:
Not only must the report be accurate, but it must be
fair. Even a report that is accurate so far as it goes
may be so edited and deleted as to misrepresent the
proceeding and thus be misleading. Thus, although it
is unnecessary that the report be exhaustive and
complete, it is necessary that nothing be omitted or
misplaced in such a manner as to convey an
erroneous impression to those who hear or read it, as
for example a report of the discreditable testimony in
a judicial proceeding and a failure to publish the
exculpatory evidence. . . .It is not always necessary
that the entire proceedings be reported at one time.
However, when a newspaper publishes from day to
day the report of a judicial proceeding, it may not,
after reporting derogatory parts, fail to publish the
further proceedings that tend to vindicate the person
defamed. The fact that the report of one side of a trial

28
 is not as complete as that of the other side is a factor
to be considered in determining whether the report,
as a whole, is unfair.

(Rest.2d Torts, § 611, Sub. f.)

Two concepts are at work here: first, “fairness” requires the

report to not mislead by omitting an accurate description of a
subsequent event that substantially reverses the defamatory
impact of the earlier report; and second, the intervening event
triggers a factual dispute requiring resolution by a fact-finder.
“The existence of a privileged occasion is a question of law for the
court; fairness of the report is a question of fact for the jury.” (5
Witkin, Summary 11th Torts Sec. 690 In General (Supplement),
citing Handelsman, supra, 11 Cal.App.3d at 386. As stated in
Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 326: “[T]he cases
uniformly hold that even though a [defendant] in the first
instance establishes the existence of a privileged occasion for a
defamatory publication, he may nevertheless be subject to
liability if [the] plaintiff persuades the fact finder that the
occasion was abused. The question of whether a privileged
occasion was abused is for the determination of the jury unless
the facts permit but one conclusion.” See also MacLeod v. Tribune
Publishing Co. (1959) 52 Cal.2d 536, 546; Pierce v. San Jose
Mercury News (1989) 214 Cal.App.3d 1626, 1634 [“Where ...
reasonable minds could disagree on what is fair, the issue is a

29
question of fact to be determined by the jury”]; Handelsman,
supra at 386: “The applicable law in California is that whether or
not a privileged occasion exists is for the court to decide, while
the effect produced by the particular words used in an article
and the fairness of the report is a question of fact for the jury ”;
Jennings v. Telegram-Tribune Co. (1985) 164 Cal.App.3d 119,
128 [privilege issue can only be decided as a matter of law if the
average reader would not understand the publication to have the
meaning asserted by the plaintiff]; Cal.Civ.Prac. Torts, supra,
Sec. 21:36.)
Perhaps because California courts have not been presented
with a factual context as dramatic as this one, where the
intervening event completely eliminates the “gist or sting” of the
original public hearing or investigation, case law in this state is
all over the map on the issue of whether the alleged divergence in
the report, when compared with the actual public hearing or
investigation, is a jury question or can be decided, as the court
below so decided, as a matter of law. Compare Handelsman,
supra, with J-M Manufacturing Co. Inc. v. Phillips & Cohen LLP
(2016) 247 Cal.App.4th 87.
Here is a listing of the legal conclusions of the opinion
below (in bold), followed by petitioner’s commentary:
1. The “gist or sting” of the 2001 LAPD
investigation is “the officer’s recording of the

30
 incident, revealing the differences between the facts
found by the LAPD and plaintiff’s own version of the
incident.” Opinion p. 20.
Yes, the “gist or sting” of the defamation is reliance on the
unenhanced audio recording, which may seem to contrast with
Rall’s version of the facts if the listener cannot hear clearly. This
should now lead the court to conclude whether it must consider
the enhanced audio recording, which vindicates Rall.
2. Sipple v. Foundation for Nat. Progress (1999) 71
Cal.App.4th 226, 241-242, stands for the proposition
that the 47(d) privilege must be broadly construed to
immunize statements, not part of the original
investigation or proceeding, that “did not contain
any information to alter the ‘gist or sting’ of the
evidence presented in the judicial proceeding.”
Opinion p. 23.
Rall agrees. But a broad construction of Civil Code section
47(d) does not immunize knowing omission of an intervening
event that substantially alters the “gist or sting.” The various
deposition or interview statements immunized in Sipple were
“consistent with trial testimony and only filled in the details.”
(Sipple v. Foundations for Nat. Progress, Supra, 71 Cal.App.4th
at 243; See also McClatchy Newspapers Inc. v. Superior Court
(1989) 189 Cal.App.3d 961, 976-77.)

31
 3. Relying on Dorsey v. National Enquirer, Inc.
(9th Cir. 1992) 973 F.2d 1431, 1436, and cases cited
therein, Section 47(d) “does not require the reporter
to resolve the merits of the charges, nor does it
require that he present the plaintiff’s version of the
facts. The ‘fair and true’ requirement of section 47(d)
does not require a media defendant to justify every
word of the alleged defamatory material that is
published. The media’s responsibility lies in
ensuring that the ‘gist or sting’ of the report — its
very substance — is accurately conveyed.” Opinion
p. 28.
What is the very substance of the LAPD investigation? The
“very substance” is revealed by the enhanced audio recording;
thus, the LA Times’ articles were not accurately conveyed. When
an intervening event challenges the “very substance,” it must be
given to the finder of fact for resolution.
4. Nothing in the Times articles alters the “gist or
sting” of the evidence in the LAPD investigation.
Opinion p. 23.
This is the heart of the case. Justice Grimes’ conclusion can
only be true if the concept of “evidence in the LAPD
investigation” is limited to the unenhanced audio recording.
Chronology is a critical concept here. The passage of time often

32
illuminates the past with a superior truth. Here, the intervening
event, the creation of a more accurate audio, questions the LAPD
“evidence” so dramatically that, if believed, the “gist or sting”
disappears.
The Stanford Law Review note cited above points out the
critical impact of chronology:
Fair report is customarily applied to accounts that
are contemporaneous with the record, action, or
proceeding that occasions the privilege. But
publishers often report on events at times that are
not contemporaneous with the subject of the report.
In such cases, subsequent events, intervening
between the proceeding and the publication, may
have changed the outcome of the matter the
proceeding concerned. A report confined to the initial
proceeding may remain an accurate account of that
particular proceeding, but by not reflecting the
change in outcome made by the intervening event, it
is nevertheless untrue.

(34 Stan.L.Rev. at 1042.)

Now let’s turn to how Justice Grimes’ opinion justified

ignoring the intervening event.
5. “Plaintiff lacks evidence that the note and
article reported falsely on this evidence as received.”
Opinion p. 26. . . .The expert’s enhanced audiotape
(Exhibit B) “casts no doubt on the accuracy of the
Times’s report on the evidence that was given to it

33
 by the LAPD concerning plaintiff’s complaint and its
investigation.” Opinion p. 27.
True enough — as received. True enough —as given to it.
But there is a legal obligation to consider subsequent intervening
events that challenge the evidence as received. Every other
jurisdiction that has considered the issue has held that the
intervening event, if it materially alters the “gist or sting,” must
be sent to a finder of fact to determine the fairness of the report.
See, e.g., Reilly v. Gillen (1980) 176 N.J.Super. 321, 423 A.2d 311,
in which a political candidate was defamed by the circulation of a
23-year old newspaper article describing a lawsuit brought by the
candidate’s employer charging the candidate with conspiracy and
corrupt conflict of interest. Subsequent to the newspaper article’s
publication the case had been voluntarily dismissed; the
employee was not only exonerated but invited to return as an
employee. The New Jersey court, relying in part on The
Restatement (Second) Torts, supra, held that the truth and
fairness of the alleged libel must be assessed at the time of the
republication, rather than when the article originally appeared
in the newspaper. “[T]he jury was properly permitted to assess
the truth thereof in light of the facts as they were known at the
time of republication.” (Id.; accord, Schiavone Construction Co. v.
Time Inc. (3rd Cir. 1988) 847 F.2d 1069, 1088-89.)

34
 6. “To state a defamation claim that survives a
First Amendment challenge a plaintiff must present
evidence of a statement of fact that is ‘provably
false’”, citing Nygard Inc. v. Uusi-Kerttula (2008) 159
Cal.App.4th 1027, 1048. Opinion p. 24.
Again, petitioner agrees with the court, and the holding in
Nygard:
Applying these principles here, we conclude that the
statements on which plaintiffs’ defamation claim is
based are nonactionable statements of opinion, rather
than verifiable statements of fact. No reasonable
reader could understand the description of Timo’s
work experience with plaintiffs as “horrible” and a
“horror” to mean that Timo was literally struck with
horror while working for the company. Instead,
“horrible” and a “horror” colorfully convey Timo’s
subjective belief that working for the company was
unpleasant. His subjective reaction does not
contain “provable facts,” and no reasonable reader
could understand these words as statements of actual
working conditions. Timo’s statements that “I was
used!” and “I Felt Myself Used!” also connote his
subjective judgment that working for the company
was unpleasant.

(Id. (emphasis added).)

The enhanced audio recording and its transcript is an
expert report. It is the result of the application of accepted
scientific methodology. See, generally, Foundation for Audio
Recordings as Evidence, 23 Am.Jur. Proof of Facts 3d 315 (1993,

35
updated 2018). Much as climate change or evolution deniers want
to label the scientific method as “subjective,” it is the opposite.
The scientific method is a powerful mechanism for how we as a
community determine truth. Unlike the opinions of working
conditions held non-defamatory in Nygard, the enhanced audio
recording and its corresponding transcript are provable,
objective facts disputing the defamatory content of the Times
articles.
7. The expert report of the enhanced audio
recording (Exhibit B) is a “subjective conclusion
about what could or could not be heard. A
reasonable trier of fact could not conclude that any
of the cited statements is false or implies ‘a provably
false factual assertion.’” Opinion pp. 24-25.
Consider this hypothetical: John Doe is convicted of DUI.
Subsequently it is discovered that the breathalyzer used in his
prosecution was wrongly calibrated. The conviction is vacated. A
newspaper report that refers to Doe as a convicted drunk driver,
without mentioning the exoneration, is unfair (thus rendering
47(d) inapplicable) and defamatory. A breathalyzer, like an audio
recording, is subject to scientific analysis. The result of that
analysis is objective fact. At trial in this case the enhanced audio
recording, possibly aided by the transcript, will be played for the
jury and it will be their conclusion as to what was said, not Rall’s.

36
Rall will testify only as to what happened. Justice Grimes’
conclusion that scientifically provable facts can be dismissed as
“subjective” threatens to improperly confuse future trial courts
faced with similar factual contexts.
8. Relying on J-M Manufacturing Co. Inc. v.
Phillips & Cohen LLP, supra, this case is not
appropriate for jury determination because there is
“no possibility that reasonable minds could disagree
on the accuracy of either report”. Opinion pp. 25-26.
J-M Manufacturing Co. Inc., supra, is a case regarding an
allegedly defamatory contemporaneous press release by attorneys
bragging about a successful trial victory. Because the “gist or
sting” of the trial victory was consistent with the information in
the press release, 47(d) privilege could be decided as a matter of
law without submitting the alleged defamatory exaggerations to
a jury. While petitioner may prefer the dissent in J-M
Manufacturing as more carefully reasoned, the majority holding
is not apposite here. If the trial court in J-M Manufacturing had
granted a judgment n.o.v. and the press release had been silent
on that fact, that would be relevant precedent.

37
 9. The undisputed facts are insufficient to
support a judgment for the plaintiff. Opinion pp. 25-
26.
Quite the contrary — the disputed facts are sufficient to
support a judgment for the plaintiff. What is undisputed is the
fact that on the record before the courts below, with no discovery,
it is impossible to know exactly what transpired during
petitioner’s arrest in 2001, although the enhanced audio
recording, which must be assumed to be truthful and accurate for
purposes of deciding the anti-SLAPP motion, would seem to be
the best evidence. 7
10. The principle that for purposes of determining
the anti-SLAPP motion the court is obligated to
accept as true the evidence favorable to the plaintiff,
such as the enhanced audio recording, has “no
application here, where it does not matter what
plaintiff’s enhanced recording shows; the issue, as
we explain in the text, post, is whether the Times
report was a fair and true report on the evidence
given to the Times by the LAPD.” Opinion p. 27.

7“Foundation for Audio Recordings as Evidence”, supra Sec.60,

describes how attempts to hold enhanced tapes inadmissible as a
violation of the best evidence rule have uniformly failed. An
enhanced tape is the best evidence.

38
 Petitioner need not repeat its argument that the court is
obligated to consider an intervening event that destroys the “gist
or sting” of the original investigation. As a legal community
committed to notions of fairness, we cannot permit a parallel
false universe to prevail over science and truth. The fault of the
court’s analysis is perhaps attributable to a failure to consider
the public policy furthered by 47(d)’s absolute privilege. The court
does point out that the privilege goes beyond the First
Amendment’s constitutional protection by permitting publication
of false and defamatory allegations, even when the publisher is
aware of the falsity. See, Opinion p. 19, citing Green v. Cortez
(1984) 151 Cal.App.3d 1068, 1074. But what is the purpose of
such a powerful privilege? As described in the Stanford Note,
supra at 1049-1050 and cited with approval in McClatchy
Newspapers Inc. v. Superior Ct., supra, 234 Cal.App.3d at 975
(emphasis supplied):
The fair report privilege is required because of the
public’s need for information to fulfill its supervisory
role over government. Thus, reports of official
proceedings are not privileged “merely to satisfy the
curiosity of individuals” but to tell them how their
government is performing. While the public may not
have an overriding interest in knowing the details of
every crime committed, its interest in overseeing the
conduct of the prosecutor, the police, and the
judiciary is strong indeed.

39
 Rather than permit the public to oversee the conduct of the
police, sustaining a privilege here obscures forever what
happened to Rall in 2001 at the hands, and in the handcuffs, of
the police. “Police misconduct is always a matter of public
interest.” (Opinion p. 18.) In accordance with every other anti-
SLAPP opinion that has described the court’s obligations when
presented with plaintiff’s proffered evidence, that evidence must
be viewed in the light most favorable to plaintiff. The enhanced
audio recording must be accepted as true. Park v. Board of
Trustees (2017) 2 Cal.5th 1057, 1067 states: “In addition to the
pleadings, we may consider affidavits concerning the facts upon
which liability is based. (§ 425.16, subd. (b)(2); We do not,
however, weigh the evidence, but accept plaintiff’s
submissions as true and consider only whether any contrary
evidence from the defendant establishes its entitlement to prevail
as a matter of law.” (emphasis added); Accord, Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291; Flatley v.
Mauro (2006) 39 Cal.4th 299, 326; Issa v. Applegate (2019)
Cal.App.5th (1/24/19) 2019 WL 311475; Area 51 Productions Inc.
v. City of Alameda (2018) 20 Cal.App.5th 581, 602; Winslett v.
1811 27th Avenue LLC (2018) 26 Cal.App.5th 239, 246; Okorie v.
LAUSD (2017) 14 Cal.App.5th 574, 590-91, and hundreds more.
Contrary to this Court’s direction (and every other court in this
state that has considered the issue), by demoting the enhanced

40
audio recording to subjective irrelevance the court below
improperly weighed the evidence and decided it was not worthy
of consideration. This is an error of constitutional dimension.
Anti-SLAPP statutes that deprive victim/plaintiffs of their right
to a jury trial can only be sustained against constitutional
challenge if they scrupulously adhere to the mandate that
plaintiff’s proffered evidence is assumed to be true. “The court
may not weigh the evidence or make credibility determinations;
doing either would violate plaintiff’s right to a jury trial. (Kyle v.
Carmon (1999) 71 Cal.App.4th 901, 907-908, 84 Cal.Rptr.2d 303;
Colt v. Freedom Communications (2003) 109 Cal.App.4th 1551,
1557. See also Wilcox v. Superior Court (1994) 27 Cal.App.4th
809, 824-825, disapproved on other grounds, Equilon Enterprises
v. Consumer Cause Inc. (2002) 29 Cal.4th 53, 68 ftn.5; Cal.
Constitution, art. I, § 16 [“Trial by jury is an inviolate right and
shall be secured to all. . . .”].) Again, petitioner here is not simply
arguing that the court below committed error; by eliminating the
SLAPP court’s obligation to assume the truth of the plaintiff’s
proffered evidence, the opinion below threatens to confuse every
future trial court faced with similar sets of facts.

41
 CONCLUSION
Petitions for review will be granted when necessary to
secure uniformity of decision or to settle an important question of
law. With regard to Wilson, this Court has already granted
review. Nam, Wilson and Park settle the important question of
law regarding restriction of abuse of the anti-SLAPP statute in
employment cases. Therefore, this petition is a “grant and hold”
application pursuant to Rule 8.512(d)(2).
Civil Code section 47(d) has proved to be an effective arrow
in the quiver of corporate media defendants wishing to crush the
reputational rights of defamed plaintiffs. It too needs to be
circumscribed. This is a case of first impression in California. By
ignoring an intervening event that nullifies the “gist or sting” of
the original investigation, the opinion below goes against the
holdings in other jurisdictions, the Restatement (Second) Torts
and legal commentators. And by holding that Section 47(d)
permits the court to ignore its obligation to assume the truth of
plaintiff’s evidence, the court goes against every other decision
describing a court’s prong two obligation, in preservation of a
plaintiff’s constitutional right to a jury trial.
Rule 8.500 does not address irony, but it should. Ted Rall
was the most vulnerable and lowest-paid employee at the Times.
His cartoons often offended the wealthy and powerful. Instead of
protecting his most vulnerable employee, the independently

42
wealthy publisher of Los Angeles’ monopoly newspaper defamed
Rall, ignored him when he proved the smear was untrue, and
used a statute designed to protect the First Amendment to
eliminate Rall’s voice from our community’s political dialogue.
Rall deserves his day in court.

Dated: February 26, 2019 By: ___________________________

Roger Lowenstein
Attorneys for petitioner

Dated: February 26, 2019 By: ___________________________

Jeffrey Lewis
Attorneys for petitioner

43
 CERTIFICATE OF WORD COUNT
I certify that the word count for the foregoing PETITION
FOR REVIEW is 8,188 as counted by Microsoft Word for Mac
2016, which was used to produce this brief.

Dated: February 26, 2019 By: ___________________________

Jeffrey Lewis
Attorney for petitioner

44
EXHIBIT A

45
 Jan 17, 2019
DANIEL P. POTTER, Clerk
Filed 1/17/19 KRLEWIS Deputy Clerk
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FREDERICK THEODORE B284566

RALL III,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BC613703)

v.

TRIBUNE 365 LLC et al.,

Defendants and Respondents.

APPEAL from orders of the Superior Court of Los Angeles

County. Joseph R. Kalin, Judge. Affirmed.
Roger A. Lowenstein and Jeffrey Lewis for Plaintiff and
Appellant.
Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox,
Dan Laidman, Diana Palacios; Jeff Glasser, Los Angeles Times
Communications LLC for Defendants and Respondents.
Jassy Vick Carolan, Jean-Paul Jassy; Nikki Moore and
David Snyder, for California News Publishers Association and
First Amendment Coalition as Amici Curiae on behalf of
Defendants and Respondents.
__________________________
 SUMMARY
Plaintiff Frederick Theodore Rall III, a political cartoonist
and blogger, sued Los Angeles Times Communications LLC (The
Times) after it published a “note to readers” and a later more
detailed report questioning the accuracy of a blog post plaintiff
wrote for The Times. The Times told its readers that it had
serious questions about the accuracy of the blog post; that the
piece should not have been published; and that plaintiff’s future
work would not appear in The Times. Plaintiff sued The Times,
related entities, and several individual defendants, alleging
causes of action for defamation and for wrongful termination in
violation of public policy, among other claims.
All defendants filed anti-SLAPP (strategic lawsuit against
public participation) motions to strike plaintiff’s complaint (Code
Civ. Proc., § 425.16). The trial court granted the motions. We
affirm the trial court’s orders.
FACTS
We summarize the facts, and then describe the moving and
opposition papers. We will elaborate on the facts as necessary in
our discussion of the legal issues.
1. The Plaintiff and the Publications
Plaintiff is a freelance editorial cartoonist who lives in New
York, and is “one of the most widely syndicated cartoonists in the
United States.” He is the author of 19 books, including a New
York Times bestselling comics biography. Between 2009 and
2015, his cartoons were drawn exclusively for The Times, but
after his work was published in The Times, he was free to publish
it elsewhere. Beginning in 2013, plaintiff also wrote blog posts
for publication in conjunction with his cartoons. Plaintiff drew
about 300 cartoons and wrote about 150 blog posts for the Times.

2
As of 2013, he was paid $200 for each cartoon and $100 for each
blog post. He drew numerous cartoons criticizing the police in
general, the Los Angeles Police Department (LAPD) in
particular, and then-LAPD Chief Charles Beck specifically.
a. Plaintiff’s May 2015 blog post
In May 2015, the LAPD was enforcing the city’s laws
against jaywalking, and The Times reported on the effects of
costly jaywalking fines on poor and working class Angelenos.
After that report, plaintiff submitted and The Times published a
cartoon mocking the LAPD for its jaywalking policy (“LAPD’s
Crosswalk Crackdown; Don’t Police Have Something Better to
Do?”), along with a May 11, 2015 blog post that described
plaintiff’s own arrest for jaywalking in 2001.
In the blog post, plaintiff wrote that he had crossed the
street properly (“I was innocent of even jaywalking”) when a
motorcycle officer “zoomed over, threw me up against the wall,
slapped on the cuffs, roughed me up and wrote me a ticket. It
was an ugly scene, and in broad daylight it must have looked like
one, because within minutes there were a couple of dozen
passersby shouting at the cop. [¶] Another motorcycle officer
appeared, asked the colleague what the heck he was thinking and
ordered him to let me go, which he did. But not before he threw
my driver’s license into the sewer.” Plaintiff’s blog also stated he
had filed a formal complaint with the LAPD, and when he called
a few months later, he was told the complaint had been
dismissed, and “[t]hey had never notified me.”
b. The Times’s July 2015 “note to readers”
On July 28, 2015, The Times published, in its opinion
section, an “Editor’s Note[:] A note to readers.” The note to
readers described plaintiff’s May 11, 2015 blog post, and then

3
described records that the LAPD provided to The Times about the
incident plaintiff had recounted in his blog post. These included
the complaint plaintiff filed at the time, and “[a]n audiotape of
the encounter recorded by the police officer.”
The note to readers stated the audiotape “does not back up
[plaintiff’s] assertions; it gives no indication that there was
physical violence of any sort by the policeman or that [plaintiff’s]
license was thrown into the sewer or that he was handcuffed.
Nor is there any evidence on the recording of a crowd of shouting
onlookers.” The note to readers continued:
“In [plaintiff’s] initial complaint to the LAPD, he describes
the incident without mentioning any physical violence or
handcuffing but says that the police officer was ‘belligerent and
hostile’ and that he threw [plaintiff’s] license into the ‘gutter.’
The tape depicts a polite interaction. [¶] In addition, [plaintiff]
wrote in his blog post that the LAPD dismissed his complaint
without ever contacting him. Department records show that
internal affairs investigators made repeated attempts to contact
[plaintiff], without success. [¶] Asked to explain these
inconsistencies, [plaintiff] said he stands by his blog post. [¶] As
to why he didn’t mention any physical abuse in his letter to the
LAPD in 2001, [plaintiff] said he didn’t want to make an enemy
of the department, in part because he hosted a local radio talk
show at the time. After listening to the tape, [plaintiff] noted
that it was of poor quality and contained inaudible segments.”
The note to readers concluded: “However, the recording
and other evidence provided by the LAPD raise serious questions
about the accuracy of [plaintiff’s] blog post. Based on this, the
piece should not have been published. [¶] [Plaintiff’s] future
work will not appear in The Times. [¶] The Los Angeles Times is

4
a trusted source of news because of the quality and integrity of
the work its journalists do. This is a reminder of the need to
remain vigilant about what we publish.”
c. The Times’s August 2015 report reaffirming
its decision that plaintiff’s blog post did not
meet its standards
On August 19, 2015, in response to questions from readers,
The Times published a piece that provided “a detailed look at the
matter by Times editors” (the Times report). After describing the
blog post and its note to readers, the Times report stated that
plaintiff had “complained that The Times acted unjustly, based
on flawed evidence,” and “demanded that the paper retract its
note to readers and reinstate him as a contributor. [¶] In
response, The Times has reexamined the evidence and found no
basis to change its decision.”
The Times report recounted the evidence The Times
examined, and makes these principal points.
i. Plaintiff’s complaint to the LAPD and
his later descriptions of the incident
Plaintiff’s original complaint to the LAPD, “written days
after the jaywalking stop, when the encounter was fresh in his
mind,” “accused the officer of rudeness but not of any physical
abuse.”1 “In published accounts years later, [plaintiff] added

1 The Times report provided further details of plaintiff’s

letter of complaint to the LAPD. Plaintiff stated he had not
jaywalked, the officer (Willie Durr) became “ ‘belligerent and
hostile’ when [plaintiff] asked him how to deal with the citation,”
Officer Durr “refused to answer when asked if the ticket could be
paid by mail and then threw [plaintiff’s] driver’s license into the
gutter.” Plaintiff asked the LAPD “to consider dismissing Durr,
whom he described as ‘an ill-tempered excuse for a police officer’ ”

5
allegations that the officer handcuffed and manhandled him, that
a crowd of two dozen onlookers shouted in protest at the
mistreatment and that a second officer arrived and ordered his
colleague to let [plaintiff] go.”2

who “exhibited ‘vile rudeness.’ ” Plaintiff “compared the officer

unfavorably to Taliban fighters who [plaintiff] said had detained
him briefly while he was on a reporting trip ‘near the Afghan war
zone.’ ” Plaintiff did not accuse the officer “of using force against
him or putting him in handcuffs.”

2 Plaintiff’s later accounts (in 2005, 2006, 2009 and the May
2015 blog post) offered varying descriptions of the jaywalking
stop. The Times report described a 2005 column in the Boise
Weekly about “pervasive police dishonesty,” where plaintiff “cited
his jaywalking case as an example, writing that Durr handcuffed
and ticketed him even though he had crossed the street legally
with a ‘walk’ signal,” saying the LAPD “ ‘repeatedly ignored my
complaints about this unprofessional goon.’ ” In a 2006 post on
his personal blog, plaintiff “invoked the jaywalking ticket as an
example of how police abuse citizens and get away with it: ‘An
African-American cop cuffed me, threw me up against the wall
and roughed me up before writing me a ticket and letting me go.’
[¶] [Plaintiff] wrote: ‘I was polite. I didn’t resist. I’m not stupid;
the guy has the legal right to shoot me. Anyway, I filed an
Internal Affairs complaint. Guess what happened? [¶] If you’re
black and reading this, you know the answer: Nada. Cops get
away with murder all the time.’ ” In a 2009 column, “headlined
‘Everyone hates the cops,’ . . . he wrote: ‘I admit it: I don’t like
cops.’ [Plaintiff] said he couldn’t ‘point to a single positive
experience I’ve ever had with a cop,’ adding that he’d had ‘lots
and lots of negative ones.’ ” Citing his 2001 jaywalking ticket,
“[h]e wrote that Durr roughed him up and threw his wallet—not
merely his license—into the sewer, and that the officer then
‘laughed and zoomed off on his motorcycle.’ ” The Times report
then points out that plaintiff’s 2015 blog post included items that

6
 ii. The LAPD records
The Times report recounted that after plaintiff’s May 11,
2015 blog post, “the LAPD contacted The Times to challenge
[plaintiff’s] account.” The LAPD “had investigated [plaintiff’s]
complaint in January 2002,” and provided The Times with
plaintiff’s letter of complaint about Officer Willie Durr and other
documents. These included “a report by Durr’s then-supervisor,
Sgt. Russell Kilby, who investigated the allegations; and a log of
calls Kilby made in unsuccessful attempts to reach [plaintiff]. [¶]
The LAPD also provided a copy of an audio recording of the
jaywalking stop made by Durr,” as well as a second recording
made by Sgt. Kilby “when he called [plaintiff’s] phone number
and left a voicemail. On the tape, Kilby is heard saying he had
left earlier messages to no avail.”
The Times report describes Officer Durr’s recording. It was
“made on a micro-cassette recorder and later transferred to a
digital format, runs about six minutes and includes traffic sounds
and other background noise. There are extended silences during
which Durr said he was checking [plaintiff’s] ID and filling out
the citation. [¶] A conversation between Durr and [plaintiff] is
audible, and it is civil. Durr is not heard being rude, ‘belligerent,’
‘hostile’ or ‘ill-tempered,’ as [plaintiff] has asserted. The officer is
heard calmly answering [plaintiff’s] questions. [¶] Neither man
is heard to raise his voice at any point. Nor does [plaintiff]
express any complaints about how is he [sic] being treated. [¶]

did not appear in the 2005, 2006 and 2009 accounts: the “crowd
of two dozen passersby who shouted at Durr,” and the “second
motorcycle officer [who] drove up, rebuked Durr and ordered him
to let [plaintiff] go.”

7
Early in the encounter, Durr asks [plaintiff] to remove his ID
from his wallet. Later, after he has filled out the citation, Durr
says: ‘I need you to go ahead and sign. . . . You’re not admitting
guilt.’ [¶] Soon after, the officer says: ‘Here’s your license back.’
[¶] About halfway through the recording, faint voices can be
heard in the background for about a minute and a half. The
comments are unintelligible on the LAPD tape. [¶] The
recording ends on a seemingly friendly note. [Plaintiff] appears
to ask the officer if he can recommend any restaurants in the
area. Durr responds that he is new to the neighborhood and
unfamiliar with ‘the local eateries.’ [¶] Durr is then heard to
say: ‘All right, have a good day.’ ”
The Times report indicates that while plaintiff repeatedly
wrote that the LAPD ignored his complaint, “[d]epartment
records show that investigators looked into his allegations,
questioned the officer who ticketed [plaintiff], listened to the
recording and tried repeatedly to reach [plaintiff]. Then-Police
Chief Bernard C. Parks sent [plaintiff] a letter informing him
that an investigation had determined his allegations were
unfounded.”
iii. The Times’s investigation and
plaintiff’s explanation
The Times report describes several interviews conducted by
Times reporter Paul Pringle in July 2015. Mr. Pringle
interviewed Officer Durr, who “said he remembered the
encounter because it resulted in a complaint against him and an
investigation. [¶] Durr said he had not roughed up [plaintiff] or
handcuffed him—in his entire career, he said, he had never
handcuffed anyone for jaywalking. Durr also said that no second
officer ever appeared on the scene, and that there was no crowd

8
of shouting onlookers. [¶] He said the encounter was free of
rancor and he was surprised when [plaintiff] filed a complaint.
[¶] [Sgt.] Kilby, now retired, said in a separate interview that his
investigation found nothing to support [plaintiff’s] allegations.
He described Durr as ‘a non-problem officer,’ ‘a nice guy’ and
‘a hard worker.’ ”
The Times report recounted that reporter Pringle
“contacted [plaintiff] and sent him copies of the documents
provided by the LAPD and a copy of Durr’s audio recording.”
“In two interviews, [plaintiff] told Pringle that he stood by
his May 11 blog post and that Durr was lying. He verified that
the voice heard on the tape was his but asserted that the
recording was of such poor quality that it could not be used to
challenge his account. [¶] He said the tape ‘only captures a part
of what’s going on’ and that Durr might have been ‘muffling’ the
recorder at key moments to conceal abusive behavior. [¶]
[Plaintiff] said he left his most serious allegations against Durr
out of his complaint to the LAPD because he did not ‘want it to
become a big deal.’ [¶] ‘I did not want that officer, I did not want
the LAPD in general, to feel that I was declaring war against
them,’ he said.”
“[Plaintiff] was asked why he didn’t complain to Durr
during the encounter about being mistreated. [Plaintiff] said he
would never complain to a policeman in such circumstances for
fear that the officer might arrest him, ‘disappear’ him in a jail cell
for several days without filing charges, or even kill him. [¶] ‘Did
I think that guy was going to kill me right there and then?’
[plaintiff] said. ‘I didn’t know. I don’t know.’ ” Plaintiff “said he
did not receive any phone message from police,” but
acknowledged receiving the letter from then-Chief Parks.

9
 The Times report stated that “Pringle also asked [plaintiff]
to explain his apparently friendly exchange with Durr after the
citation was issued, in which he asked the officer to recommend a
restaurant in the area. [¶] [Plaintiff] said he had been
‘traumatized’ by the incident and likened his behavior to that of
‘rape victims calling their rapist back, and—you know, like, days
later—and wanting to get back together.’ ”
The Times report then describes plaintiff’s actions after the
Pringle interviews and its own further investigative activities. It
stated:
“[[P]laintiff] has attacked The Times in Web posts and
media interviews, accusing the paper of knuckling under to
pressure from the LAPD to discredit a critic.” Plaintiff
“contend[ed] that the LAPD transcript [was] incomplete and that
faintly audible background noises bolster his account. [Plaintiff]
said he had Post Haste Digital, a Los Angeles company that does
sound work for the entertainment industry, enhance the
recording. [Plaintiff] maintains that on the enhanced version,
two women can be heard midway through the recording
complaining that [plaintiff] was handcuffed. [Plaintiff] said the
women were part of a crowd of people who protested his
treatment. He has published a transcript that he says is
consistent with this claim.” He and a co-author “wrote that six
unidentified ‘audio experts’—including both amateurs and
professionals, according to the post—said they believed the
recording had been spliced in places.”
The Times report states that Commander Andrew Smith,
an LAPD spokesman, “said LAPD experts later enhanced the
recording and could not hear anyone complain about handcuffs.

10
They found no indication that the tape was spliced or otherwise
altered, he said.” In addition:
“The Times had the recording analyzed by two leading
experts in audio and video forensics.” One of these, Edward J.
Primeau, “said that voices heard in the background on
[plaintiff’s] enhanced version are mostly unintelligible, and that
he did not detect any mention of handcuffs. He said [plaintiff’s]
transcript was ‘not accurate.’ ” Mr. Primeau also analyzed the
LAPD recording and “concluded ‘beyond a reasonable degree of
scientific certainty’ that the tape had not been spliced or
otherwise edited.” The second expert, Catalin Grigoras, “said his
analysis detected no reference to handcuffs”; that “a man and a
woman can be heard speaking in the background at one point,
but only a few of their words are intelligible”; they “appear to be
having a conversation unrelated to the jaywalking stop”; and
“ ‘[i]t is obvious the police officer is not part of that
conversation.’ ”3
The Times report concluded by stating The Times
“continues to have serious questions about the accuracy of
[plaintiff’s] blog post”; that “[n]o version of the recording,
including [plaintiff’s] enhanced one, supports the cartoonist’s
allegations that Durr was violent, hostile, rude and belligerent”;
and that “Goldberg, the editorial page editor, said that in light of
all the available information, The Times stands by its note to
readers and its judgment that [plaintiff’s] May 11 blog post
should not have been published.”

3 The Times report also describes the background and

experience of both experts.

11
2. The Complaint
On March 14, 2016, plaintiff filed his complaint against
The Times, various related companies, and four individual
defendants.4 Plaintiff alleged causes of action for defamation,
defamation per se, and intentional infliction of emotional distress
against all defendants. He also alleged, against the corporate
defendants, causes of action for violation of Labor Code section
1050 (blacklisting) and section 1102.5 (retaliation for disclosing
information about an employer’s violation of law), breach of
express oral contract, breach of implied-in-fact contract, and
wrongful termination in violation of public policy. (We refer to
the corporate entities collectively as The Times.)
Plaintiff’s defamation claims alleged seven “false
statements” in the note to readers, and 25 “falsities” in the Times
report. (We recite in the margin the 10 statements plaintiff
continues on appeal to assert are “false statements.”)5 The

4 These were Austin Beutner (then publisher of The Times),

Nicholas Goldberg (editor of The Times’s editorial pages),
reporter Paul Pringle and Deirdre Edgar (The Times’s readers’
representative who wrote the introduction to the Times report).

5 In his opening brief, plaintiff contends the following

statements are false statements of fact:
(1) “Since then, the Los Angeles Police Department has
provided records about the incident, including a complaint
[plaintiff] filed at the time.”
(2) “An audiotape of the encounter recorded by the police
officer does not back up [plaintiff’s] assertions; it gives no
indication that there was physical violence of any sort by
the policeman or that [plaintiff’s] license was thrown into
the sewer or that he was handcuffed. Nor is there any
evidence on the recording of a crowd of shouting onlookers.”

12
complaint alleged the cited statements are false for various
reasons: the LAPD did not provide the records to The Times; The
Times “does not actually have the audiotape,” but rather an
unauthenticated digital copy of the original analog microcassette
tape of very poor quality, and subsequent enhancement “confirms
[plaintiff’s] version of the events, not the LAPD’s”; “the evidence
was unreliable”; and there are no discrepancies in his accounts of
the incident. The complaint also asserts that statements that the
recording and other evidence raised “serious questions about the
accuracy” of plaintiff’s blog post, and that the post “should not

(3) “The tape depicts a polite interaction.”

(4) “The Los Angeles Police Department challenged [plaintiff’s]
account and provided documents and a tape recording of
the 2001 encounter that indicate the officer did not use
force against [plaintiff] and treated him politely.”
(5) “The Times interviewed [plaintiff] about the discrepancies
between the police records and tape recording and his blog
post.”
(6) “About halfway through the recording, faint voices can be
heard in the background for about a minute and a half.
The comments are unintelligible on the LAPD tape.”
(7) “Durr said he had not roughed up [plaintiff] or handcuffed
him—in his entire career, he said, he had never handcuffed
anyone for jaywalking.”
(8) An LAPD spokesman told The Times that LAPD experts
“found no indication that the tape was spliced or otherwise
altered.”
(9) “[Plaintiff’s] accounts of the jaywalking stop have changed
over time in significant respects.”
(10) “No version of the recording, including [plaintiff’s]
enhanced one, supports the cartoonist’s allegations that
Durr was violent, hostile, rude and belligerent.”

13
have been published . . . necessarily and falsely impl[y] that
[plaintiff’s] work is of low-quality and lacks integrity.”
In addition, the complaint alleged “adverse employment
actions and behavior.” The complaint alleged plaintiff’s hiring
“as a freelance editorial cartoonist” in 2009. In addition to facts
already described about his experience, his work for The Times,
and his blog post, the complaint described his interview with
Paul Pringle and telephone calls from Mr. Goldberg. The
complaint alleged The Times “did not ask an independent audio
expert to authenticate or enhance the recording, or make any
effort whatsoever to investigate the LAPD’s claims before
[plaintiff’s] termination.” The complaint alleges “egregious
conflicts of interest between the LAPD, the Times and its
Publisher”; The Times “rushed its decision to terminate [plaintiff]
in approximately 24 hours, without following due diligence for
allegations of employee misconduct, or the correct handling of
audio presented to the newspaper”; and also “failed to follow
standard procedure by failing to allow [plaintiff] to meet with the
editorial board” to discuss his case.
The complaint sought general and special damages,
punitive damages, and attorney fees.
3. The Special Motions to Strike
The Times filed a special motion to strike the complaint, as
did the individual defendants.
The individual defendants argued generally as follows.
Plaintiff’s defamation and emotional distress claims were based
exclusively on the content of the notice to readers and the Times
report (collectively, the Times articles). The Times articles
involved “allegations of police misconduct, accuracy of reports on
that issue, and accountability of those who exaggerate or

14
misrepresent information about police misconduct,” all of which
are matters of public interest well within the scope of the anti-
SLAPP statute. Plaintiff could not show a probability of
prevailing because of the fair report privilege (Civ. Code, § 47,
subd. (d)) that applies as a matter of law to all of plaintiff’s
content-based claims. In addition, each of the 32 statements
alleged in the complaint “is either substantially true; a subjective
conclusion based on disclosed facts; and/or not defamatory.”
The Times made the same arguments as to plaintiff’s
defamation and blacklisting claims. Plaintiff’s other claims (the
employment claims) also came within the scope of the anti-
SLAPP statute, The Times argued, because they arise from The
Times’s “constitutionally protected editorial decision to stop
publishing [plaintiff’s] work.” In addition, plaintiff’s employment
claims “presuppose an ‘employment’ relationship that did not
exist.” In any event these claims “would fail on the merits
because Plaintiff did not plead, and cannot offer evidence to
prove, the elements of those claims.”
Plaintiff opposed both motions. Plaintiff summarized by
stating that “no protected activity forms the foundation of the
defamatory statements that effectively wrongfully terminated
Plaintiff’s employment in violation of public policy.” We will
elaborate as necessary in connection with our legal discussion,
post.
The trial court granted both motions.
Plaintiff filed a timely notice of appeal. Along with his
opening brief, plaintiff filed a request for judicial notice of
portions of an LAPD manual, pages from the docket of a
California Supreme Court case, and a decision in a Los Angeles
City Ethics Commission case. Plaintiff’s request provided no

15
explanation why the materials are relevant to this appeal
(violating California Rules of Court, rule 8.252(a)(2)), and did not
present them to the trial court despite their availability before
the trial court’s decision. Accordingly, we deny the request.
After the parties briefed the case, we granted an
application from California News Publishers Association and
First Amendment Coalition to file a brief as amici curiae in
support of defendants.
DISCUSSION
We first describe the applicable legal principles and then
turn to their application in this case.
1. The Anti-SLAPP Statute and Procedure
A defendant may bring a special motion to strike any cause
of action “arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States
Constitution or the California Constitution in connection with a
public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) Acts
in furtherance of free speech rights in connection with a public
issue include, as relevant here, “any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest,” and “any other
conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (Id.,
subd. (e)(3) & (4).)
When ruling on an anti-SLAPP motion, the trial court
employs a two-step process. It first looks to see whether the
moving party has made a threshold showing that the challenged
causes of action arise from protected activity. (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If

16
the moving party meets this threshold requirement, the burden
then shifts to the other party to demonstrate a probability of
prevailing on its claims. (Ibid.) In making these determinations,
the trial court considers “the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or
defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); HMS
Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212
[“In opposing an anti-SLAPP motion, the plaintiff cannot rely on
the allegations of the complaint, but must produce evidence that
would be admissible at trial.”].)
The anti-SLAPP statute, including the scope of the term
“public interest,” is to be construed broadly. (Nygård, Inc. v.
Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039-1042 (Nygård)
[discussing cases and legislative history of 1997 amendment
adding the directive to construe the statute broadly].) Nygård
concludes: “Taken together, these cases and the legislative
history that discusses them suggest that ‘an issue of public
interest’ within the meaning of section 425.16, subdivision (e)(3)
is any issue in which the public is interested. In other words, the
issue need not be ‘significant’ to be protected by the anti-SLAPP
statute—it is enough that it is one in which the public takes an
interest.” (Id. at p. 1042.)
Our review is de novo. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
2. The Defamation Claims
a. The first prong: protected activity
As stated above, written statements in a public forum in
connection with an issue of public interest are protected free
speech activity. (Code Civ. Proc., § 425.16, subds. (b), (e)(3) &
(4).) Here, plaintiff’s defamation claims arose from the Times

17
articles. Both articles were published in a public forum, and both
concerned issues of public interest.
The note to readers concerned the accuracy of a blog posted
on The Times’s website discussing allegations of police
misconduct and the propriety of the LAPD policy of enforcing the
city’s jaywalking laws. The former issue (police misconduct) is
always a matter of public interest, and the latter (jaywalking
enforcement) had been recently in the news by virtue of The
Times’s reporting on the effect of $197 jaywalking fines on poor
and working class Angelenos, to which hundreds of readers had
responded. The accuracy—or not—of publications by The Times
on these issues is likewise and necessarily a matter of public
interest.
The Times report included the same issues. In addition,
when the Times report was published, the issue of The Times’s
decision to stop publishing plaintiff’s cartoons and blog posts, and
the claimed defamatory nature of the note to readers, had
likewise become issues of public interest as a consequence of
extensive media coverage.
b. The second prong: probability of
prevailing on the merits
Plaintiff has not produced evidence demonstrating a
probability of prevailing on his defamation claims.
i. The legal requirements
“The tort of defamation ‘involves (a) a publication that is
(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a
natural tendency to injure or that causes special damage.’ ”
(Taus v. Loftus (2007) 40 Cal.4th 683, 720; Nygård, supra,
159 Cal.App.4th at pp. 1047-1048.)

18
 ii. The fair report privilege
Defendants contend, and we agree, that the Times articles
were absolutely privileged under Civil Code section 47,
subdivision (d) (section 47(d)).6 Under that provision (the fair
report privilege), a publication is privileged if it is made “[b]y a
fair and true report in . . . a public journal, of (A) a judicial,
(B) legislative, or (C) other public official proceeding, or (D) of
anything said in the course thereof . . . .” (§ 47(d)(1), italics added;
see McClatchy Newspapers, Inc. v. Superior Court (1987) 189
Cal.App.3d 961, 974 (McClatchy) [“Even when the print media
publish an accurate report of a statement they know to be false,
the protective cloak of subdivision 4 [now subdivision (d)]
remains intact, not penetrated by a finding of malice.”]; Green v.
Cortez (1984) 151 Cal.App.3d 1068, 1074 (Green) [the fair report
privilege “has been an absolute one” since 1945].)
“The meaning of a ‘fair and true report’ is well established
in California case law. . . . [A] media defendant does not have to
justify every word of the alleged defamatory material that is
published. [Citation.] The media’s responsibility lies in ensuring
that the ‘gist or sting’ of the report—its very substance—is

6 Under section 47(d), a privileged publication or broadcast is

one made “(1) By a fair and true report in, or a communication to,
a public journal, of (A) a judicial, (B) legislative, or (C) other
public official proceeding, or (D) of anything said in the course
thereof, or (E) of a verified charge or complaint made by any
person to a public official, upon which complaint a warrant has
been issued. [¶] (2) Nothing in paragraph (1) shall make
privileged any communication to a public journal that does any of
the following: [¶] (A) Violates Rule 5–120 of the State Bar Rules
of Professional Conduct. [¶] (B) Breaches a court order. [¶]
(C) Violates any requirement of confidentiality imposed by law.”

19
accurately conveyed. [Citation.] Moreover, this responsibility
carries with it a certain amount of literary license. The reporter
is not bound by the straitjacket of the testifier’s exact words; a
degree of flexibility is tolerated in deciding what is a ‘fair
report.’ ” (McClatchy, supra, 189 Cal.App.3d at pp. 975-976.)
iii. This case
Here, the focus of the Times articles was the accuracy of
material published on its website, and central to that issue was
the 2001 LAPD investigation of plaintiff’s complaint to the LAPD
about his 2001 jaywalking arrest. That pivotal issue included the
description of the complaint plaintiff made about his jaywalking
arrest, the LAPD’s investigation of the officer’s conduct during
the arrest, and the officer’s recording of the incident, revealing
the differences between the facts found by the LAPD and
plaintiff’s own version of the incident. That was a report on a
“public official proceeding”—the LAPD’s investigation of
plaintiff’s complaint about his jaywalking arrest. The reporting
on that subject is the basis for plaintiff’s defamation claim,
without which there would be no claim. And the authorities are
clear that a police investigation is a “public official proceeding”
within the meaning of section 47(d). Thus:
“A police investigation similar to the one in this case
[involving an officer’s behavior during an arrest] has been held to
be an ‘official proceeding authorized by law’ for purposes of
section 47, subdivision 2 [now section 47, subdivision (b)]
[citation], and there can be no doubt that such an investigation is
similarly a ‘public official proceeding’ under subdivision 4 [now
section 47(d)].” (Green, supra, 151 Cal.App.3d at p. 1073; see also
Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124, 1128
[Green’s interpretation of “ ‘public official proceeding’ to include a

20
police investigation into allegations of use of excessive force by
police” is “consistent with what we construe to be the plain
meaning of section 47, subdivision 4 [now section 47(d)]”].)
Ignoring these authorities, plaintiff asserts the LAPD
investigation of his complaint was not a “public official
proceeding” on the theory that “[t]here was never even a
preliminary investigation,” and there is no “public official
proceeding” until the complainant is interviewed and an
“adjudicatory process” begins. Plaintiff cites no legal authorities
that support his assertion.7 Instead, he claims that LAPD
procedures in its departmental manual were not followed because
he was not interviewed. Plaintiff may not rely on the manual, as

7 Plaintiff cites cases that do not help him. For example, in

Burrill v. Nair (2013) 217 Cal.App.4th 357, 397-398, disapproved
on another point in Baral v. Schnitt (2016) 1 Cal.5th 376, 396,
footnote 11, the court stated that “[t]he [fair report] privilege has
been held to apply to fair reports of police investigations.”
(Burrill, at pp. 397-398.) It did not apply, Burrill held, “to a
report of the charges made in a citizen’s criminal complaint,
made by the citizen who filed that complaint, when there is no
evidence any official action has been taken with respect to the
complaint.” (Id. at p. 398.) Consequently, the fair report
privilege did not apply to complainant’s own defamatory
statements in a radio interview, made on the same day he filed
his criminal complaint. (Id. at pp. 398, 375-376; see id. at p. 397
[“ ‘An important reason for this position has been to prevent
implementation of a scheme to file a complaint [in a judicial
proceeding] for the purpose of establishing a privilege to publicize
its content and then dropping the action.’ ”].) This is plainly not
such a case. And, other authorities have declined to follow
Burrill. (Healthsmart Pacific, Inc. v. Kabateck (2016)
7 Cal.App.5th 416, 433-434.)

21
we have denied his request for judicial notice. The manual would
not assist him in any event; it does not purport to tell us (nor
could it) what constitutes a “public official proceeding.”
Plaintiff also asserts, incorrectly, that the fair report
privilege is limited to publication of a verified charge or
complaint on which a warrant has been issued. Such
publications are also privileged (§ 47(d)(1)(E)), but the limitation
plaintiff posits simply does not exist, as the language of the
statute shows. (See fn. 6, ante.)
Next, plaintiff contends the Times articles were not “fair
and true report[s]” of the LAPD files, and were instead “reports of
the Times’ own intervening investigation.” Plaintiff points out
that the absolute privilege in section 47(d) does not immunize
private investigations, citing Hawran v. Hixson (2012) 209
Cal.App.4th 256, 280-282 (Hawran). Hawran is not helpful to
plaintiff.
In Hawran, a company issued a press release concerning its
internal investigation into its handling of certain research and
development test data and results. The press release was
disseminated on the same day the company filed legally required
disclosures to the Securities and Exchange Commission (SEC),
and after an SEC investigation had begun. (Hawran, supra,
209 Cal.App.4th at pp. 262-263, 264.) The court found the press
release did not “purport[] to report on, summarize or describe the
SEC proceeding or investigation, the history of the SEC
proceeding or investigation, or any communications made ‘in the
course of’ that investigation. Rather, it is plain from the face of
the document that the September press release is reporting the
results and consequences of [the defendant’s] own internal
investigation.” (Id. at p. 281.)

22
 That is not the case here. Both Times articles report fully
on the LAPD investigation of plaintiff’s complaint. And the
complaint and the information revealed by the LAPD
investigation (including the audio recording of the incident), as
reported in the Times articles, are at the center of plaintiff’s
defamation claims.
In a related contention, plaintiff asserts that even if the fair
report privilege applies, the privilege “should not reach those
portions of the [Times articles] that recount the Times’
investigation.” Plaintiff cites no authority for this contention,
and we reject it. We do not think the fair report privilege can be
lost by virtue of the inclusion of material that is integral to the
subject of the Times articles. (As plaintiff himself says, “[w]hat
actually occurred at the time of [plaintiff’s] confrontation with
Officer Durr is the crux of the case.”)
The authorities support our conclusion. (See Sipple v.
Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 241-242
[“the substantial public concerns implicated in [section 47(d)]
support the extension of a broad protection over the media”].)
Sipple rejected a contention that the fair report privilege “should
be applied narrowly and should not shield the entire article but
only those statements that are part of the proceedings.” (Id. at
p. 241.) The court affirmed the trial court’s ruling that
statements not a part of the proceeding “did not contain any
information to alter the ‘gist or sting’ of the evidence presented in
the judicial proceeding.” (Id. at p. 231.) So it is here, where
nothing in the Times articles alters the “gist or sting” of the
evidence in the LAPD investigation.
Further, even if we were to find the Times articles could be
segregated into portions that are privileged and portions that are

23
not, it would avail plaintiff nothing. First, the “false statements
of fact” plaintiff describes in his brief (see fn. 5, ante) relate in
substantial part to the LAPD materials, the report of which is
unquestionably privileged. And second, “[t]o state a defamation
claim that survives a First Amendment challenge, . . . a plaintiff
must present evidence of a statement of fact that is ‘provably
false.’ ” (Nygård, supra, 159 Cal.App.4th at p. 1048.) “ ‘The
dispositive question . . . is whether a reasonable trier of fact could
conclude that the published statements imply a provably false
factual assertion.’ ” (Ibid.) None of the remaining statements
plaintiff cites, recited in the margin, meets that standard.8

8 The allegedly false statements not directly related to the

LAPD investigation, along with plaintiff’s assertions about them,
are: (1) “[t]hat the Times interviewed [plaintiff] about
discrepancies between the LAPD records, the tape and his blog
post.” (Plaintiff says this is false because there were no
discrepancies, but clearly there were.) (2) “That Officer Durr had
never handcuffed anyone for jaywalking.” (Plaintiff asserts
Officer Durr has handcuffed a suspect for illegal street racing.)
(3) “That the LAPD told the Times that the audio has no
indication that the tape was spliced or altered.” (Plaintiff says
there was no way to determine that because the audio was digital
and not the original tape.) (4) “That Rall has offered changing
versions of the 2001 detention over time and those changes are
‘significant.’ ” (Plaintiff says there are no changing versions, just
“different levels of detail.”) (5) “That no version of the recording
of the 2001 detention . . . supports the allegation that Durr was
violent, hostile, rude and belligerent.” (Plaintiff cites as evidence
of falsity his declaration describing what he heard a radio talk
show host say (which is inadmissible hearsay), and what he
heard on his enhanced recording. Both plaintiff’s and The
Times’s statements are subjective conclusions about what could
and could not be heard.) A reasonable trier of fact could not

24
 Next, plaintiff contends his LAPD complaint and related
materials were exempt from the fair report privilege by the
confidentiality exception to the privilege. (A “communication to a
public journal” that “[v]iolates any requirement of confidentiality
imposed by law” is not privileged. (§ 47(d)(2)(C).)) Plaintiff
misconstrues this exception. Police personnel records of
complaints or investigations are indeed subject to various
confidentiality restrictions, such as Penal Code section 832.7.
But those confidentiality requirements have no application here.
Such restrictions are for the protection of investigative files and
the police officers involved. The officer “may, of course, choose to
waive the confidentiality protection of section 832.7.” (Berkeley
Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 406,
fn. 22.) The LAPD voluntarily provided the investigative files to
both The Times and plaintiff, and plaintiff points to no evidence
that Officer Durr—who was later interviewed by reporter Pringle
on the subject—had any objection. Plainly he did not. No
confidentiality provision was violated by the Times articles.
Finally, plaintiff asserts that the application of the fair
report privilege in this case is a jury issue. Again, we disagree.
Whether a report is “fair and true” is a jury question only if
“reasonable minds could disagree as to the effect of the
communication on the average reader or listener.” (J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247
Cal.App.4th 87, 98 (J-M Manufacturing).) But “appellate courts
have not been reluctant to decide the fair report privilege applies
as a matter of law when the undisputed facts are insufficient to

conclude that any of the cited statements is false or implies “a

provably false factual assertion.” (Nygård, supra,
159 Cal.App.4th at p. 1048.)

25
support a judgment for the plaintiff.” (Id. at p. 99.) That is the
case here.
Both of the Times articles are in the record. So is the
material from the LAPD investigation on which the articles
report, including a copy of Officer Durr’s audio recording. The
bottom line, as in J-M Manufacturing, is that “[t]he substance of
[the Times articles] was accurate,” and as a consequence, the
Times articles were absolutely privileged under section 47(d). (J-
M Manufacturing, supra, 247 Cal.App.4th at p. 105.)
We have described the Times articles in great detail, and
see no possibility that reasonable minds could disagree on the
accuracy of either report. The trial court summed up the point
nicely: “The report merely stated the conclusion of the [LAPD]
investigation, that [plaintiff’s] complaint was unfounded, and
reviewed the evidence it was given by the LAPD, which the
LAPD used in the investigation, and the logs of attempted
communications with plaintiff during the investigation. There is
no dispute that the materials reviewed were given to the Times
by the LAPD. Plaintiff lacks evidence that the note and article
reported falsely on this evidence as received. This is privileged.”
In the end, plaintiff’s claim that “reasonable minds could
disagree on what is fair” rests on his assertion that he disputed
The Times’s “interpretation” of the audio recording, that his
enhancement of the recording “substantially vindicated his
position”; and that this court “must assume the validity of
[plaintiff’s] proof.”9 That is not the case.

9 Plaintiff cites Soukup v. Law Offices of Herbert Hafif,

supra, 39 Cal.4th at page 291, for the proposition that we must
assume his enhanced recording shows what he says it shows.
Plaintiff misses the point. He cannot establish his case has

26
 Plaintiff’s proof consists of his declaration that he listened
to an audio enhancement of the LAPD recording provided to him
by Post Haste Digital, and on the enhanced recording he heard
remarks by three different women, two of whom referred to
handcuffing plaintiff. That evidence casts no doubt on the
accuracy of The Times’s report on the evidence that was given to
it by the LAPD concerning plaintiff’s complaint and its
investigation. Further, the Times report also described plaintiff’s
version of what he heard on the Post Haste Digital enhancement,
and provided an online link to that enhancement so that readers
could listen for themselves. The Times report also described the
views of its experts, who examined plaintiff’s enhanced version
and disagreed with what plaintiff said he heard. As the trial
court aptly concluded, “[p]laintiff has not established that
defendants were obligated to find the enhanced tape accurate,
credible and audible . . . .” (Cf. Partington v. Bugliosi (9th Cir.
1995) 56 F.3d 1147, 1156 [“when a speaker outlines the factual

minimal merit because the Times articles were absolutely

privileged as a matter of law, as we discuss in the text. Soukup
merely recites the standard principles that in assessing the
evidence on an anti-SLAPP motion, the court does not weigh
credibility or comparative probative strength of competing
evidence. Rather, in assessing whether the defendant’s evidence
defeats the plaintiff’s attempt to establish evidentiary support for
the claim, “it is ‘the court’s responsibility . . . to accept as true the
evidence favorable to the plaintiff.’ ” Those principles simply
have no application here, where it does not matter what
plaintiff’s enhanced recording shows; the issue, as we explain in
the text, post, is whether the Times report was a fair and true
report on the evidence given to The Times by the LAPD.

27
basis for his conclusion, his statement is protected by the First
Amendment”].)
As the authorities tell us, the fair report privilege “ ‘does
not require the reporter to resolve the merits of the charges, nor
does it require that he present the [plaintiff’s] version of the
facts.’ [Citations.] [¶] The ‘fair and true’ requirement of
section [47(d)] therefore does not require a media defendant ‘to
justify every word of the alleged defamatory material that is
published. The media’s responsibility lies in ensuring that the
‘gist or sting’ of the report—its very substance—is accurately
conveyed.’ ” (Dorsey v. National Enquirer, Inc. (9th Cir. 1992)
973 F.2d 1431, 1436, fn. omitted.)
In sum, we cannot find the Times articles to be anything
other than a fair and true report of an LAPD investigation that
was central to the substance of the articles, and accordingly
absolutely privileged. Consequently, plaintiff cannot establish a
probability of prevailing on his defamation claims.10

10 Plaintiff makes a separate argument that he has

established a probability of prevailing on his blacklisting claims.
(Under Labor Code section 1050, “[a]ny person . . . who, after
having discharged an employee from the service of such person or
after an employee has voluntarily left such service, by any
misrepresentation prevents or attempts to prevent the former
employee from obtaining employment, is guilty of a
misdemeanor.” Section 1054 authorizes a civil action for treble
damages for a violation of section 1050.) But, aside from any
other defects, plaintiff’s blacklisting claim arises from the same
source as his defamation claims—the Times articles—and is
subject to the same limitations. (See Blatty v. New York Times
Co. (1986) 42 Cal.3d 1033, 1043 [“the various limitations rooted
in the First Amendment are applicable to all injurious
falsehood claims and not solely to those labeled ‘defamation’ ”].)

28
3. Plaintiff’s Employment Claims
a. The first prong: protected activity
The trial court concluded The Times has a First
Amendment right to publish or not to publish any story it
chooses, and that plaintiff’s wrongful termination and related
claims arose from The Times’s decision not to publish any of his
work in the future. Plaintiff contends this was error under Park
v. Board of Trustees of California State University (2017)
2 Cal.5th 1057 (Park). There was no error.
In Park, the plaintiff was denied tenure at California State
University, Los Angeles, and filed suit under the California Fair
Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.)
for national origin discrimination. The defendant filed an anti-
SLAPP motion. The trial court denied the motion because the
complaint was based on the defendant’s decision to deny tenure,
rather than on any communicative conduct in connection with
that decision, and denial of tenure based on national origin is not
protected activity. (Park, supra, 2 Cal.5th at p. 1061.) The
Supreme Court agreed with the trial court, and explained:
“[A] claim is not subject to a motion to strike simply
because it contests an action or decision that was arrived at
following speech or petitioning activity, or that was thereafter
communicated by means of speech or petitioning activity.
Rather, a claim may be struck only if the speech or petitioning
activity itself is the wrong complained of, and not just evidence of

As we have found, the Times articles were absolutely privileged.

This eliminates plaintiff’s blacklisting claims along with his
defamation claims.

29
liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060.)
In this case, unlike Park, The Times’s decision not to
publish plaintiff’s work in the future is the “wrong” plaintiff
complains of in his wrongful termination and related employment
claims. It is equally clear that a newspaper’s decision to publish
or not to publish a contributor’s work is protected by the First
Amendment.
“[T]he courts have long held that the right to control the
content of a privately published newspaper rests entirely with
the newspaper’s publisher. The First Amendment protects the
newspaper itself, and grants it a virtually unfettered right to
choose what to print and what not to.” (Eisenberg v. Alameda
Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1391 (Eisenberg);
see also Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S.
241, 258 [“The choice of material to go into a newspaper, . . . and
treatment of public issues and public officials—whether fair or
unfair—constitute the exercise of editorial control and judgment.
It has yet to be demonstrated how governmental regulation of
this crucial process can be exercised consistent with First
Amendment guarantees of a free press . . . .”]; Ampersand
Publishing, LLC v. NLRB (D.C. Cir. 2012) 702 F.3d 51, 56
[“The First Amendment affords a publisher—not a reporter—
absolute authority to shape a newspaper’s content.”].)
In short, we find it incontrovertible that plaintiff’s
employment claims arose directly from The Times’s protected
First Amendment conduct: deciding not to publish plaintiff’s
work. The Times’s decision not to publish plaintiff’s cartoons and
blogs is not “just evidence of liability” and it is not “a step leading
to some different act for which liability is asserted.” (Park, supra,

30
2 Cal.5th at p. 1060.) The decision not to publish is the “act for
which liability is asserted.” (Ibid.)
Of course The Times is not free to fire its employees for
reasons that are illegal under FEHA or other laws, under the
guise of free speech. That is what Park is all about. It was the
decision to deny tenure for allegedly illegal reasons that was the
basis for the plaintiff’s suit—not the communicative activity that
led up to that decision, and was evidence of the defendant’s
asserted liability for denying tenure.
Plaintiff’s extensive discourse on Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510 has no pertinence
for this case either. In Hunter, the court concluded that CBS’s
selection of a weather anchor for its television stations qualified
as an act in furtherance of the exercise of free speech. (Id. at
p. 1521; see ibid. [the selections “ ‘helped advance or assist’ [two]
forms of First Amendment expression [reporting the news and
creating a television show],” and “therefore qualifies as a form of
protected activity”]; id. at p. 1525 [“CBS’s protected activity—
employment decisions regarding its weather anchors—is not
incidental to [the plaintiff’s] discrimination claims; indeed, it is
the very conduct on which his claims are based.”].)
Park discussed Hunter in the course of rejecting the
defendant university’s contention that tenure decisions implicate
the public interest as much as decisions concerning who should
appear in a news broadcast. (Park, supra, 2 Cal.5th at p. 1071-
1072.) Park said the university’s argument “fail[ed] to appreciate
the underlying structure of the position accepted in Hunter and
thus offer[ed] a mismatched analogy,” and the university had not
“developed or preserved any such [similar] argument before us.”
(Id. at p. 1072.)

31
 Park did not “express any opinion concerning whether
[Hunter] itself was correctly decided.” (Park, supra, 2 Cal.5th at
p. 1072.) Unless and until it does, we see no reason to disagree
with Hunter. But in any event, the selection of a weather anchor
for a television station is quite different from the uniformly
recognized “right to choose what to print and what not to.”
(Eisenberg, supra, 74 Cal.App.4th at p. 1391.) So, whatever the
vitality of Hunter may be, it does not affect the ineluctable
conclusion in this case that plaintiff’s employment claims arise
from protected activity.11

11 The same is true concerning another case on which plaintiff

relies, Wilson v. Cable News Network, Inc. (2016) 6 Cal.App.5th
822, review granted March 1, 2017, S239686. Plaintiff says
Wilson is the “closest precedent to this case,” “anticipated the
holding in Park,” and establishes that the anti-SLAPP statute
does not apply to his employment claims. Wilson held, over a
dissent, that claims of employment discrimination and
retaliation, by a producer and writer at CNN who was fired for
alleged plagiarism, arose from the “defendants’ allegedly
discriminatory and retaliatory conduct against him.” (Wilson, at
p. 836.) The court “reject[ed] defendants’ characterization of their
allegedly discriminatory and retaliatory conduct as mere ‘staffing
decisions’ in furtherance of their free speech rights to determine
who shapes the way they present news,” and stated “[t]he press
has no special immunity from generally applicable laws.” (Ibid.)
Here, plaintiff has no discrimination or retaliation claims under
FEHA. And, as with the Hunter case, staffing decisions to
determine who shapes the way news is presented is a far cry from
the right to choose what to print and what not to print.

32
 b. The second prong: probability of
prevailing on the merits
We return to a point pertinent to the merits of plaintiff’s
employment claims: that The Times is not free to fire its
employees for reasons that are illegal under FEHA or other laws,
under the guise of free speech. But absent some illegal basis for
the decision, The Times may fire an employee for any reason or
no reason. That is the nature of at-will employment.
The parties argue at length about whether plaintiff was an
employee or an independent contractor. (Plaintiff apparently
does not challenge the authorities holding that, because
independent contractors are not employees, they lack standing to
assert a claim for wrongful termination in violation of public
policy. (E.g., Sistare-Meyer v. Young Men’s Christian Assn. (1997)
58 Cal.App.4th 10, 14, 18 [independent contractors cannot assert
claims for wrongful termination in violation of public policy
predicated on race-based terminations].) Like the trial court, we
see no reason to address this issue, because plaintiff in any event
has not stated a claim.
To prevail on a claim for wrongful termination in violation
of public policy, the employee must show that the public policy
allegedly violated is “supported by either constitutional or
statutory provisions” and that it is “ ‘fundamental’ and
‘substantial,’ ” among other points. (Stevenson v. Superior Court
(1997) 16 Cal.4th 880, 889-890 (Stevenson).) Plaintiff made no
such showing.
Plaintiff asserts he was “pretextually fired for fabrication,
but actually it was in retaliation for offending the police chief.”
Plaintiff calls this “retaliation by proxy.” By this he means that
“[t]here was nothing the LAPD could do to harm [plaintiff]

33
directly; so they called in a favor and had the Times fire him.”
“Retaliation by proxy” is not a legal doctrine, and indeed is not a
term that has been used in any California case of which we are
aware. More to the point, plaintiff has identified no
constitutional or statutory provision that would support his
assertion of a public policy violation.
In other words, even if The Times had fired plaintiff “in
retaliation for offending the police chief”—a claim that is belied
by plaintiff’s own evidence that The Times published many of
plaintiff’s cartoons criticizing the LAPD and Chief Beck—plaintiff
has identified no constitutional, statutory or regulatory provision
that would have been violated.12 Without constitutional or
statutory support for an alleged public policy, a claim for
wrongful termination in violation of public policy cannot succeed.
(E.g., Stevenson, supra, 16 Cal.4th at pp. 889-890.)
Nonetheless, plaintiff purports to have found a case “right
on point”—Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th
1477 (Ali).13 Ali is not on point. In that case, the court reversed
a summary judgment for the defendant newspaper on the
plaintiff’s claim for wrongful termination in violation of public

12 In his complaint, plaintiff alleged he was terminated “in

part because of plaintiff’s protected status” (citing every protected
status, including pregnancy, listed in FEHA), as well as Labor
Code section 1102.5 (retaliation for disclosing information about
an employer’s violation of law). He presented no evidence to
support those assertions, and does not cite FEHA or Labor Code
section 1102.5 in his briefs on appeal.

13 Ali was disapproved on another ground in Reid v. Google,

Inc. (2010) 50 Cal.4th 512, 532, footnote 7.

34
policy. This was because there were triable issues of fact on two
issues. One was the independent contractor issue, and the other
was “whether his employment was terminated for engaging in
protected political speech outside the workplace.” (Id. at p. 1481,
italics added.)
In Ali, the plaintiff asserted he was fired “not because the
content of his articles contravened the editorial policies or
standards of the newspaper, but because outside of the workplace
he publicly criticized an influential public official for supporting a
particular political candidate.” (Ali, supra, 112 Cal.App.4th at
p. 1488, italics added.) If true, that would have violated the
public policy “prohibiting employers from terminating an
employee for engaging in political activity . . . found in Labor
Code section 1101.” (Ali, at p. 1487.)
Obviously, nothing like that happened here, or was alleged
to have happened here. The Times did not refuse to publish
plaintiff’s cartoons and blogs because of his political activity
outside the workplace. The Times did so based on plaintiff’s own
work, written for and published on The Times’s website. Even
had plaintiff alleged violations of Labor Code sections 1101 and
1102 in his complaint, which he did not, plaintiff cites no
authority suggesting those provisions would apply in these
circumstances.
Likewise, plaintiff has not established a probability of
prevailing on his claims for breach of an express oral contract (or
an implied-in-fact contract) not to terminate him without good
cause. His opening brief does not recite the elements necessary
to state those claims, and he cites no evidence at all that supports
the existence of, or a breach of, any such contract. Indeed,

35
plaintiff states he “is not even objecting to his at-will status
under most circumstances”—whatever that means.
The only evidence plaintiff cites consists of declarations
from other cartoonists stating that in similar circumstances, the
management of their newspapers “would [have] met about it
personally,” “would have given me an opportunity to hear and
respond to the evidence,” would have “offer[ed] me a fair
hearing,” and “always consulted me before taking any action.”
Plaintiff says he is “seeking vindication of the policy” in the
industry that an employee accused of violating journalistic ethics
be given “a fair opportunity to present his position before being
fired.” But plaintiff has not produced evidence to establish a
prima facie case for the existence of an oral contract with The
Times.
Plaintiff presents no argument concerning his claim for
intentional infliction of emotional distress, and accordingly any
assertion of error on that claim is forfeited.
DISPOSITION
The orders are affirmed. Defendants shall recover their
costs on appeal.

GRIMES, J.
WE CONCUR:

BIGELOW, P. J.

STRATTON, J.

36
EXHIBIT B
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