San Diegans for Open Government v. San Diego State
D069189
| Cal. Ct. App. | May 3, 2017Background
- inewsource (nonprofit investigative news org.) contracted with KPBS (SDSU public media) for office space, equipment, and access in exchange for producing investigative news content; SDSURF handled fiscal matters. 2012 collaboration agreement and a 2015 extension/lease governed the relationship.
- inewsource published a series of investigative articles critical of attorney Cory Briggs and organizations he controls (including plaintiff San Diegans for Open Government—SDOG).
- SDOG sued inewsource, its founder Loretta Hearn, SDSU, CSU Trustees, and SDSURF, alleging the KPBS–inewsource contracts violated public conflict-of-interest and public-funding laws (Gov. Code §§ 1090, 8314) and asserted trademark claims; SDOG sought declaratory/other relief.
- Defendants moved under California’s anti‑SLAPP statute (§ 425.16), arguing the suit targeted news‑gathering/ reporting activity and lacked admissible evidence on the merits; the trial court granted the motions.
- On appeal SDOG argued (1) its suit is a public‑interest action exempt from anti‑SLAPP (§ 425.17(b)), and (2) if anti‑SLAPP applies, its claims were not based on protected activity and it showed a probability of success.
- The Court of Appeal affirmed: the media exception to the public‑interest exemption (§ 425.17(d)(1)) applied; the challenged contracts constituted conduct in furtherance of protected news‑gathering; and SDOG failed to produce admissible evidence to show a likelihood of prevailing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the public‑interest exemption to anti‑SLAPP (§ 425.17(b)) prevent application of anti‑SLAPP? | SDOG: suit is a public‑interest enforcement action to stop self‑dealing and seeks only public‑type relief, so exemption applies. | Defs: media‑defendant exception (§ 425.17(d)) applies because the suit challenges news‑gathering contracts, so anti‑SLAPP still available. | Held: § 425.17(d)(1) applies; because defendants are media persons and the acts relate to gathering/processing information, the public‑interest exemption does not bar anti‑SLAPP. |
| Do SDOG’s claims “arise from” protected activity under § 425.16? | SDOG: the gravamen is unlawful self‑dealing and misuse of public funds, not protected speech. | Defs: the injury‑producing conduct is the KPBS–inewsource collaboration (contracts) which furthers news‑gathering and is protected; motive (alleged self‑dealing) is distinct. | Held: The claims arise from protected activity (contracts that enable newsgathering); motive does not remove protection. |
| Does the “illegal activity” exception (protected activity loses protection if conduct is illegal as a matter of law) apply? | SDOG: contracts were unlawful (conflict of interest/gift of public funds), so activity not protected. | Defs: illegality must be established by concession or uncontroverted evidence; mere allegation insufficient. | Held: No evidence proved illegality as a matter of law; allegations alone don't negate protected status. |
| Did SDOG present admissible evidence establishing a probability of prevailing on the merits? | SDOG: relied on verified complaint and attorney declarations to show triable issues (and pointed to policies/histories). | Defs: SDOG offered no competent personal‑knowledge evidence; defendants submitted declarations directly refuting SDOG’s factual assertions. | Held: SDOG failed to present admissible evidence to establish a prima facie case; anti‑SLAPP motions properly granted. |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (Cal. 2016) (anti‑SLAPP two‑step framework and broad construction)
- Hunter v. CBS Broadcasting, Inc., 221 Cal.App.4th 1510 (Cal. Ct. App. 2013) (hiring/newsgathering decisions are acts in furtherance of free speech)
- Major v. Silna, 134 Cal.App.4th 1485 (Cal. Ct. App. 2005) (media exception to public‑interest exemption applies when claim relates to news gathering)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (defendant must show claim arises from protected activity; focus on injury‑producing conduct)
- Brodeur v. Atlas Entertainment, Inc., 248 Cal.App.4th 665 (Cal. Ct. App. 2016) (verified complaint allegations alone cannot establish probability of prevailing under anti‑SLAPP)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (speech loses anti‑SLAPP protection only if illegal as a matter of law by concession or uncontroverted evidence)
- Hub City Solid Waste Services, Inc. v. City of Compton, 186 Cal.App.4th 1114 (Cal. Ct. App. 2010) (public‑contracting facts showing official control can create 1090 liability)