San Diegans for Open Government v. San Diego State University Research Foundation (investigative newsource)

SAN DIEGANS FOR OPEN GOVERNMENT,

Plaintiff and Appellant,

v.

SAN DIEGO STATE UNIVERSITY RESEARCH FOUNDATION et al.,

Defendants and Respondents;

INVESTIGATIVE NEWSOURCE et al.,

Real Parties in Interest and    Respondents.

No. D069189

(Super. Ct. No. 37-2015-00011951-

CU-MC-CTL)

California Court of Appeals

Fourth Appellate District

Division One

Filed June 1, 2017

THE COURT:

It is ordered that the opinion filed on May 3, 2017, be modified as follows:

1.  On page 32, before the second full paragraph that begins "The allegations in SDOG's lawsuit" insert the following paragraphs:

Recently, in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park), the California Supreme Court clarified that "[a] claim arises from protected activity when that activity underlies or forms the basis for the claim."  (Id. at p. 1062.)  "'[T]he defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech.'"  (Id. at p. 1063, italics omitted.)  "[T]he focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability---and whether that activity constitutes protected speech or petitioning.'"  (Ibid.)  Accordingly, "'[t]he only means specified in section 425.16 by which a moving defendant can satisfy the ["arising from"] requirement is to demonstrate that the defendant's conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) . . . .'"  (Ibid., italics omitted.)  "[I]n ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability."  (Ibid.)

Here, SDOG's claim under Government Code section 1090 requires it to show Hearn was financially interested in a contract made by her in her official capacity as a state employee.  (Gov. Code, § 1090, subd. (a).)  Moreover, in determining whether its claims are based on protected activity, SDOG concedes its entire complaint is "based on" the "execution of agreements by Respondents."  Thus, the specific elements of SDOG's claims depend on the existence of the 2012 Agreement and 2015 lease.  These contracts that SDOG challenges are not merely evidence of liability, nor are they merely a step leading to some different act for which liability is asserted.  (See Park, supra, 2 Cal.5th at p. 1060 ["a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted"].)  Rather, SDOG's complaint alleges these agreements are "illegal[]" and, therefore, asks the court to enter judgment declaring each of them to be "void."  SDOG could not have omitted from its complaint allegations regarding the 2012 Agreement and 2015 lease and still state the same claims. 

Moreover, SDOG's assertion that the challenged contracts are merely a step leading to potential newsgathering and not in themselves newsgathering is incorrect.  The contracts dictate the way in which inewsource and KPBS gather and publish the news.  The contracts require inewsource to deliver to KPBS specific news stories and to make their reporters available to KPBS in exchange for office space.  Accordingly, because the protected activity---here, contracts for newsgathering, news collaboration, and news reporting to the public---are in themselves elements of the challenged claims, the trial court correctly determined SDOG's lawsuit arises from defendants' protected activity.  (See Park, supra, 2 Cal.5th at p. 1068.)

2.  On page 32, at the start of the first sentence of the existing second full paragraph, insert the word "Further," so the sentence now reads:

Further, the allegations in SDOG's lawsuit make clear the injury-producing conduct underlying its claims consists of the contracts between inewsource and KPBS that govern the process in which these defendants jointly engage in newsgathering and reporting news to the public.

3.  On page 33, line 7, change the citation from "section 426.16, subdivision (e)" to "section 425.16, subdivision (e)."

4.  On page 35, before the first full paragraph that begins "In a related argument" insert the following new paragraphs:

Quoting Park, supra,  2 Cal.5th at p. 1060, SDOG asserts "'a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.'"  SDOG contends we must, therefore, "segregate the negotiating and entering into the Agreements from the subject of the Agreements."  SDOG argues the anti-SLAPP analysis would be the same regardless of the content of the challenged contracts.  SDOG asserts, "As an example, the Agreements at issue here would be equally outside the scope of the anti-SLAPP statute if Ms. Hearn were a licensed building contractor and had used her faculty position at SDSU to procure a long-term construction contract between SDSU and her construction company."

SDOG's argument fails because in determining whether the challenged contracts are protected under section 425.16, subdivision (e)(4), the fact these contracts are for gathering and delivering news stories and not some other purpose matters.  The Supreme Court's explanation in Park, supra, 2 Cal.5th 1057 of the decision in Hunter, supra, 221 Cal.App.4th 1510 explains why.  In Hunter, the defendant television station argued that (1) the station itself engaged in speech on matters of public interest through its news and weather broadcasts, and (2) the decision as to who should present that message was thus conduct in furtherance of the station's protected speech on matters of public interest.  (See discussion in Park, supra, at pp. 1071-1072 .)  The instant case is effectively indistinguishable:  Inewsource is a news organization that publishes news stories of public interest, and its decision of whom to partner with to deliver the news (i.e., KPBS, under the challenged contracts) is conduct in furtherance of its protected speech on matters of public interest.  Under section 425.16, subdivision (e)(4), protected activity includes "any other conduct in furtherance of the exercise of the . . . constitutional right of free speech in connection with a public issue or an issue of public interest."  SDOG is not seeking to void a contract to make widgets or to construct a building.  It is seeking to void contracts that directly affect the content of news stories the public receives.  That protected content brings this case within section 425.16, subdivision (e)(4). 

The analysis might well be different if SDOG sought to void the hypothetical construction contract it posits, or any number of other hypothetical contracts that do not involve newsgathering and reporting.  However, this case, like Hunter, supra, 221 Cal.App.4th 1510, involves protected newsgathering and news reporting.  Inewsource is not a construction company.  It is in the news reporting business, and the contracts SDOG challenges shape the way inewsource and KPBS gather, produce, and report the news.

5.  On page 36, footnote 17 is deleted and a new footnote 17 is inserted in its place so footnote 17 now reads:

¹⁷  Under section 425.16, subdivision (e)(4), conduct in furtherance of the exercise of free speech rights is protected only where such conduct is "in connection with a public issue or an issue of public interest."  In granting the motions to strike, the trial court determined "this action arises from protected activity under [section] 425.16."  On appeal, the trial court's order is presumed correct and "'it is the appellant's burden to affirmatively demonstrate error.'"  (Ruelas v. Superior Court (2015) 235 Cal.App.4th 374, 383.)  "'To demonstrate error, [the] appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.'"  (Multani v. Witkin & Neal (2013) 215 Cal.App.4th 1428, 1457.)  However, as inewsource notes, SDOG does not address the public interest prong of section 425.16, subdivision (e)(4) in its opening brief discussion of whether its claims arise from protected activity.  Accordingly, the issue is forfeited.  (H.N. & Frances C. Berger Foundation v. City of Escondido (2005) 127 Cal.App.4th 1, 15.)

There is no change in the judgment.

Plaintiff's petition for rehearing is denied.

HUFFMAN, Acting P. J.