Anaya v. Cbs Broadcasting Inc.

• Decision Date: 29 May 2009
• Docket Number: No. CIV 06-0476 JB/LCS.,CIV 06-0476 JB/LCS.
• Parties: Lillian ANAYA and Mel Anaya, Plaintiffs, v. CBS BROADCASTING INC., Emmis Communications, Corp., Sharyl Attkisson, Tri-City Auto Sales, Inc. d/b/a All Mustang Performance or AMP Performance, and Thomas Thompson in his official and individual capacities, Defendants.
• Court: U.S. District Court — District of New Mexico

626 F.Supp.2d 1158

Lillian ANAYA and Mel Anaya, Plaintiffs, v. CBS BROADCASTING INC., Emmis Communications, Corp., Sharyl Attkisson, Tri-City Auto Sales, Inc. d/b/a All Mustang Performance or AMP Performance, and Thomas Thompson in his official and individual capacities, Defendants.

No. CIV 06-0476 JB/LCS.

United States District Court, D. New Mexico.

May 29, 2009.

COPYRIGHT MATERIAL OMITTED

Todd M. Lopez, Julie Sakura, Lopez & Sakura LLP, Jesse A. Boyd, Attorney at Law, Santa Fe, NM, John W. Boyd, Michael Lee Goldberg, Freedman Boyd Hollander Goldberg & Ives, Albuquerque, NM, for the Plaintiffs.

John B. Pound, Nancy Long, Long, Pound & Komer, P.A., Santa Fe, NM, Michael L. Raiff, Thomas S. Leatherbury, Marc A. Fuller, Vinson & Elkins L.L.P., Dallas, TX, for Defendants CBS Broadcasting

Inc., Sharyl Attkisson, and Emmis Communications, Corp.

Frederick G. Gamble, Attorney at Law, Tempe, AZ, Kirk R. Allen, Matthew S. Rappaport, Miller Stratvert P.A., Albuquerque, NM, for Defendants Thomas Thompson and Tri-City Auto Sales, Inc. d/b/a AMP Parts and Performance or All Mustang Performance.

James P. Bieg Rodey, Dickason, Sloan, Akin & Robb, P.A. Santa Fe, NM Bruce Hall Theresa W. Parrish Rodey, Dickason, Sloan, Akin & Robb, P.A., Albuquerque, NM for Los Alamos National Laboratory and the Regents of the University of California at Berkley.

AMENDED MEMORANDUM OPINION AND ORDER¹

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on CBS's Initial Motion for Summary Judgment, filed May 13, 2008 (Doc. 150)("Motion"). The Court held a hearing on September 18, 2008. The primary issues are: (i) whether Plaintiff Lillian Anaya was a public official under the law of defamation; (ii) whether Lillian Anaya was a "limited-purpose public figure" under the law of defamation; and (iii) whether, if she was either or both, there is sufficient evidence of Defendant CBS Broadcasting Inc.'s actual malice to go to a jury. The Court determines that Lillian Anaya was not a public official, and that she was not a public figure during the time period encompassing the first three broadcasts. The Court will therefore deny the motion for summary judgment in part and require the Plaintiffs to show only negligence to recover actual damages for those broadcasts. Additionally, because Lillian Anaya became a public figure by the time of the October 8, 2003 and April 27, 2004 broadcasts, the Court will evaluate claims arising out of those broadcasts under the actual-malice standard. Because the Court believes that the Plaintiffs have not shown a genuine issue of material fact on certain statements, but have on others, the Court will grant the motion for summary judgment in part and deny it in part, and allow the Plaintiffs to seek punitive damages on certain statements.

FACTUAL BACKGROUND

In 2002, Los Alamos National Laboratory ("LANL") became the focus of a controversy involving mismanagement, and purchasing and property control. This controversy threatened to end the University of California's sixty-year management of LANL. CBS contends that the controversy began when the discovery of Lillian Anaya's apparent purchase of a Mustang using a government purchase card triggered an External Review Team audit of LANL's purchase-card program. See Motion at 8, Undisputed Fact No. 40; Exhibit 1 to Tab C of CBS' Memorandum in Support of its Initial Motion for Summary Judgment, filed May 13, 2008 (Doc. 151)("CBS' Memo."), August 20, 2002 LANL Press Release at 1 (dated August 20, 2002)("Aug. 20 Press Release"). Lillian Anaya clarifies the actual language of the LANL Press Release, upon which CBS relies. The document states that LANL placed one of its employees and a subcontract worker on leave "in connection with apparent irregularities in the use of the Laboratory-issued purchase cards. The two individuals are holders of the cards associated with these apparent irregularities." Aug. 20 Press Release at 1. "The irregularities triggered a more comprehensive examination of all purchase card transactions for the past two years." Id. The dispute about the origin of the controversy is not material, and the Court understands that both Lillian Anaya and CBS agree that the public became aware of the purchase card irregularities with the August 20, 2002 press release, and that Lillian Anaya was one of the individuals placed on leave. See Deposition of Lillian Anaya at 80:12-20 (taken April 22, 2008)(Tab I to CBS' Memo.)("April 22 Anaya Depo.").²

1. Lillian Anaya's Position at LANL.

Lillian Anaya began working at LANL in 1970. See Exhibit C to Declaration of Michael L. Goldberg in Support of Plaintiffs' Memorandum Opposing CBS' Initial Motion for Summary Judgment (executed July 8, 2008)("Goldberg Decl."), Deposition of Lillian Patricia Anaya at 10:10-14 (taken February 8, 2008)("Feb. 8 Anaya Depo."). Over the course of her thirty-two year career at LANL, Lillian Anaya gained increasing responsibility until she ultimately attained the position of procurement assistant in 1990. See First Amended Complaint for Defamation, Negligence, Intentional Infliction of Emotional Distress, False Light Invasion of Privacy, Appropriation of Name and Likeness, Fraud[,] Prima Facie Tort, and Loss of Consortium ¶ 11, at 3, filed August 23, 2006 (Doc. 18-1)("FAC"). Lillian Anaya describes her work responsibilities as including responsibility "for procurement and purchases," "solicitation, negotiation, award, contract administration, negotiation of administration of change orders, modifications, claims, problem resolution, and purchase order close out." Exhibit 6 to April 22 Anaya Depo., Resume of Lillian P. Anaya at 1 (not dated)("Resume"). Lillian Anaya awarded and administered purchase orders and purchase-order terminations according to "Laboratory, UC [University of California] and DOE acquisition regulations and policies and procedures." Resume at 1.

To facilitate her responsibilities, Lillian Anaya possessed a purchase card with a transaction limit of $25,000. See Exhibit 13 to April 22 Anaya Depo., Letter from Bank One at 1. Aside from the $25,000 transaction limit, Lillian Anaya also had a monthly spending limit of $900,000.00. See id. On at least one occasion, she processed a single purchase-order transaction valued at five million dollars. See April 22 Anaya Depo. at 24:16-20. Thus, Lillian Anaya had substantial spending capability at LANL, and from October 1998 to June 2002, she was the most active cardholder at LANL, accounting for approximately 13% of LANL's purchase-card volume. See id. at 22:6-23:4. The purchase card that Lillian Anaya used at LANL functioned like a credit card, and the United States paid the bill. See id. at 23:5-14. Thus, the expenditures made on the purchase card were paid with taxpayer money. Id.

Aside from those facts, which do not appear to be disputed, the parties have some disagreement over the extent of Lillian Anaya's work responsibilities and the amount of discretion and/or supervisory authority that she was able to exercise. The Court observes some tension between Lillian Anaya's deposition testimony and her declaration. At the April 22, 2008 deposition, Anaya read from her resume— which she testified was accurate—that she was "responsible for procurement for purchase cards and purchases up to 1.5 million. [She was] responsible for solicitation, negotiation, award, contract administration of change orders, modifications, claims, problem resolution, and purchase order closeout." April 22 Anaya Depo. at 32:15-19. She also testified that she would "award and administer purchase orders in compliance with the Laboratory, [University of California (`UC')], and [Department of Energy (`DOE')]³ policies, procedures, and regulations. [She] develop[ed] solicitations, determin[ed] method of subcontracting, identif[ied] the appropriate type of order, and specific solicitation/purchase order language and clauses." Id. at 32:21-25. She "served as a point-of contact on procurement matters with private industry representatives, vendors, manufacturers, technical offices, management officials of technical divisions, and transportation specialists." Id. at 33:9-12. She would also "coordinate a wide range of administrative actions to ensure compliance." In addition, "[she] ma[de] decisions, anticipat[ed] problems, and solve[d] issues related to office administration and procurements. [She] ha[s] mentored and trained four junior members of the ESA Procurement Team," and served as a "primary contact for small/streamline purchases." Id. at 19-25.

Moreover, Lillian Anaya testified at the deposition that she "demonstrated a high degree of judgment in determining sources of supply and analyzing purchasing requirements, including price trends, economic factors, and transportation costs." Id. at 51:23-52:3. She testified that she was a member of a "self-directed work team" in which she "actively participate[d] in the decision on procurement team [sic] and provide[d] leadership." Id. at 52:15-25. CBS maintains that this deposition testimony, and other similar deposition testimony and documentary evidence, establish that, in addition to having significant spending authority, Lillian Anaya had substantial supervisory authority and discretion in performing her job. She also testified, however, that, although she had the ability to carry out large purchases with the purchase card or through purchase orders, she could not do so without the approval of the requestor or of the requestor's manager and a financial representative. See April 22 Anaya Depo. at 16:4-25.

Lillian Anaya submitted a Declaration as part of her response in which she appears to downplay her authority and discretion. In that Declaration, Anaya states: "At no point during my employment in the purchasing department did I hold a policy or supervisory position of any sort, nor did I hold a position that gave me any discretionary authority over the expenditure of funds." Declaration...