San Diegans for Open Gov't v. San Diego State Univ. Research Found.
2017 Cal. App. LEXIS 511
Cal. Ct. App. 5th2017Background
- inewsource (nonprofit investigative newsroom) contracted with KPBS (SDSU public broadcasting) in 2012 and extended/leased space in 2015 so inewsource would provide investigative stories and KPBS would provide offices, equipment, and access.
- Inewsource published a series of critical articles about attorney Cory Briggs in 2015. SDOG (an entity SDOG alleged Briggs controls) sued inewsource, Hearn (inewsource founder), SDSU, CSU Trustees, and SDSURF alleging the KPBS–inewsource contracts violated state conflict-of-interest and public‑funds laws and sought declarations the contracts are void.
- Defendants moved under California’s anti‑SLAPP statute (Code Civ. Proc. §425.16). The trial court granted the motions, concluding the claims arose from protected newsgathering activity and SDOG failed to produce admissible evidence establishing a probability of prevailing.
- SDOG appealed, arguing (1) its suit is a public‑interest action exempt from anti‑SLAPP (Cal. Civ. Proc. Code §425.17(b)); (2) the media exception to that exemption (§425.17(d)) does not apply because the suit targets unlawful self‑dealing, not news reporting; and (3) alternatively, the claims do not arise from protected activity or SDOG has a probability of success.
- The Court of Appeal affirmed: it held the media provision of §425.17(d)(1) brings this case within anti‑SLAPP coverage; the challenged contracts constitute conduct in furtherance of protected free‑speech/newsgathering activity; and SDOG presented no admissible evidence creating a prima facie case.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SDOG's suit is exempt from anti‑SLAPP as a public‑interest action under §425.17(b) | SDOG: action enforces public right (conflict‑of‑interest law), seeks public relief, private enforcement necessary | Defendants: suit targets media/newsgathering; media exception (§425.17(d)) applies so anti‑SLAPP remains available | Held: media exception (§425.17(d)(1)) applies; thus anti‑SLAPP was available to defendants |
| Whether §425.17(d)(1) covers contracts and prepublication conduct (i.e., negotiating/executing agreements used to gather/report news) | SDOG: alleged wrongdoing was unlawful self‑dealing, not journalistic activity; motive matters | Defendants: contracts govern and facilitate newsgathering—thus are conduct "engaged in the gathering, receiving, or processing of information" | Held: §425.17(d)(1) covers such contracts; focus is on challenged conduct, not alleged motive |
| Whether the complaint "arises from" protected activity under §425.16(e) | SDOG: the gravamen is unlawful contracting/self‑dealing (not protected speech) | Defendants: the injury‑producing conduct is the KPBS–inewsource agreements that further newsgathering and are protected conduct | Held: claims arise from protected activity—contracts are conduct in furtherance of newsgathering and speech |
| Whether SDOG produced admissible evidence showing a probability of prevailing on the merits | SDOG: relied on verified complaint allegations, procurement rules, and limited documentary materials authenticated by counsel | Defendants: submitted declarations showing Hearn had no decisionmaking role for KDPS/SDSU; SDOG provided no competent witness with personal knowledge | Held: SDOG failed to present competent admissible evidence; anti‑SLAPP motions properly granted (prima facie case not shown) |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (California Supreme Court) (framework for anti‑SLAPP two‑step analysis)
- Navellier v. Sletten, 29 Cal.4th 82 (California Supreme Court) (defendant must show claim arises from protected activity)
- Hunter v. CBS Broadcasting, Inc., 221 Cal.App.4th 1510 (Cal. Ct. App.) (newsgathering and related prepublication acts are protected)
- Park v. Bd. of Trustees of California State Univ., 2 Cal.5th 1057 (California Supreme Court) (a claim arises from protected activity when that activity underlies the claim)
- Major v. Silna, 134 Cal.App.4th 1485 (Cal. Ct. App.) (§425.17(d) was meant to preserve anti‑SLAPP for news‑gathering acts)
- Brodeur v. Atlas Entertainment, Inc., 248 Cal.App.4th 665 (Cal. Ct. App.) (verified complaint allegations alone insufficient to establish probability of prevailing)
- Flatley v. Mauro, 39 Cal.4th 299 (California Supreme Court) (illegal speech exception to anti‑SLAPP applies only when illegality is conceded or conclusively established)
- Lieberman v. KCOP Television, Inc., 110 Cal.App.4th 156 (Cal. Ct. App.) (newsgathering is protected activity)
- Tamkin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133 (Cal. Ct. App.) (preproduction acts tied to expression are protected)