Braun v. Chronicle Publishing Co.

• Decision Date: 18 February 1997
• Docket Number: No. A073121,A073121
• Citation: 61 Cal.Rptr.2d 58,52 Cal.App.4th 1036
• Court: California Court of Appeals Court of Appeals
• Parties: , 115 Ed. Law Rep. 989, 25 Media L. Rep. 1594, 97 Cal. Daily Op. Serv. 1119, 97 Daily Journal D.A.R. 1642 Odelia S. BRAUN, Plaintiff and Appellant, v. THE CHRONICLE PUBLISHING COMPANY et al., Defendants and Respondents.

Page 58

61 Cal.Rptr.2d 58

52 Cal.App.4th 1036, 115 Ed. Law Rep. 989,

25 Media L. Rep. 1594, 97 Cal. Daily Op. Serv. 1119,

97 Daily Journal D.A.R. 1642

Odelia S. BRAUN, Plaintiff and Appellant, v. THE CHRONICLE PUBLISHING COMPANY et al., Defendants and Respondents.

No. A073121.

Court of Appeal, First District, Division 4, California.

Feb. 18, 1997.

Rehearing Denied March 18, 1997.

Review Denied June 11, 1997.

Barbara A. Lawless, Carol Belcher, Lawless, Horowitz & Lawless, San Francisco, for Appellant.

Neil L. Shapiro, Mark D. Johnson, Landels, Ripley & Diamond, San Francisco, for Respondents.

POCHE, Associate Justice.

This appeal concerns the scope of two, sometimes interrelated, statutes: the anti-SLAPP ¹ statute, Code of Civil Procedure section 425.16 (section 425.16), and the reporter's privilege found at Civil Code section 47, subdivision (d). The triggering event in this litigation was the publication of five news reports stemming from allegations of illegal and improper management of the Center for Pre-Hospital Research and Training (CPRT) at the University of California at San Francisco (UCSF). In particular, the news reports described an investigative audit carried out by the State Auditor, as well as a background audit and "whistle-blower letter" that disclosed various levels of malfunctioning and malfeasance in the CPRT program.

Odelia Braun, M.D., sued the Chronicle Publishing Company (Chronicle), reporter Ben Wildavsky (respondents) and others for defamation and a multitude of other torts. Respondents Chronicle and Wildavsky successfully employed section 425.16 to strike the claims against them. On appeal Braun urges that the statute does not apply to the stricken claims and even if it did, the court erred in striking them because she demonstrated a probability of prevailing on the merits. We disagree with Braun and, accordingly, affirm the judgment.

I. FACTS

The CPRT was founded in 1987 as an activity within the UCSF Department of Medicine to support emergency medical services in the community. Dr. Braun served as medical director of the center from inception until closure in December 1994.

Following receipt of complaints of mismanagement of CPRT, Floyd Rector, M.D., chair of the Department of Medicine, retained Maybruck Associates to review CPRT's contracts and operations. Maybruck released a report in October 1992 which detailed numerous irregularities in CPRT's operations. However, Dr. Rector did not make the report public, nor did he disseminate it within university channels, e.g., to the Audit Committee of the Board of Regents, office of the president, university auditor, UCSF internal audit staff or the university external auditors.

Then in February 1993 an instructor for the San Francisco Fire Department (SFFD) Medical Training Program, which contracts its medical training to CPRT, sent a "whistle-blower" letter to Dr. Rector confirming their conversation about various business practices within CPRT that were of concern to her. These included misuse of SFFD training contract funds and billing SFFD for work not performed.

That August, Braun sued two of her colleagues at UCSF for slander, infliction of emotional distress and interference with business relations. At the heart of her complaint were allegations that the defendants made false statements to various persons charging her with seriously mismanaging the finances of CPRT, misappropriating CPRT funds and encouraging CPRT personnel to misappropriate funds. Braun also alleged that defendants hired an outside auditor to review and scrutinize CPRT.

Eventually employees of UCSF lodged allegations with the Bureau of State Audits (State Auditor) pursuant to the Reporting of Improper Government Activities Act ² to the effect that: (1) CPRT was improperly spending state and donor-generated funds; (2) the center was paying for expenses out of a secret, unauthorized checking account; and (3) there were improprieties in the contracts with the SFFD.

In early 1994 the State Auditor commenced its investigative audit of CPRT. That July, the State Auditor requested that counsel for the Board of Regents obtain the assistance of UCSF to access CPRT computer files containing payroll information related to falsification of hours. After counsel refused assistance, an investigator for the State Auditor sought and obtained a search warrant, which resulted in seizure of various records. The State Auditor issued his report on November 22. Thereafter the university terminated Braun and closed the CPRT, due to "lack of funds."

Meanwhile, the Chronicle published five articles in 1994, about the State Auditor's probe of CPRT and events leading up to that investigation. ³ Four of the five articles were penned by Ben Wildavsky.

In addition to respondents, Braun has prosecuted the present lawsuit against UCSF, the Board of Regents, Maybruck Associates, and a host of former professional colleagues. She has alleged 10 causes of action, ranging from sex discrimination and breach of contract and of the covenant of good faith to defamation and intentional and negligent infliction of emotional distress. This appeal followed the granting of respondents' motion to strike under section 425.16.

II. DISCUSSION

A. Background

The anti-SLAPP statute is designed to nip SLAPP litigation in the bud by striking offending causes of actions which "chill the valid exercise of the constitutional rights of freedom of speech and petition ...." (§ 425.16, subd. (a).) Finding a "disturbing increase" in such lawsuits, the Legislature has declared it in the public interest "to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process." (Ibid.)

Thus, where a cause of action arises "from any act" of a person "in furtherance of the person's right of petition or free speech ... in connection with a public issue," that cause is subject to a motion to strike, unless the plaintiff establishes a probability of prevailing on the claim. (§ 425.16, subd. (b).) Acts "in furtherance of a person's right of petition or free speech ... in connection with a public issue" are defined as including: "[ (1) ] any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [ (2) ] any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; or [ (3) ] 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." (Id., subd. (e), italics added.)

The defendant pursuing an anti-SLAPP motion must make an initial prima facie showing that plaintiff's suit arises from an act in furtherance of defendant's right of petition or free speech. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 820, 33 Cal.Rptr.2d 446.) A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in subdivision (e) (quoted above). (Ibid.)

Braun first urges that her claims are outside the ambit of section 425.16 because respondents' underlying actions did not further either the exercise of their petition rights or their free speech rights in a public forum. Next, she is adamant that the reported matters did not amount to a "public" issue. Finally, Braun insists that even if respondents could make out a prima facie case under section 425.16, she would be able to counter that case with her own showing of facts establishing a probability of prevailing at trial. These contentions are not compelling.

B. Analysis

(1) The Chronicle and Its Reporter Were Acting in Furtherance of their Free Speech Rights Within the Meaning of Section 425.16, Subdivision (e)

Throughout this litigation, the Chronicle and its reporter have maintained that their published reports constitute acts in furtherance of their free speech rights within the meaning of section 425.16, subdivision (e). In particular they reason that these reports fall squarely within the second clause of subdivision (e) as "writing[s] made in connection with an issue under consideration or review by ... any other official proceeding authorized by law"--namely, the state investigatory audit. We agree.

Under the plain terms of section 425.16, the motion to strike remedy can be employed only where the plaintiff has launched litigation stemming from "any act ... in furtherance of the [defendant's] right of petition or free speech ... in connection with a public issue." (§ 425.16, subd. (b).) Subdivision (e), in turn, gives definitional contour to the entire " 'act in furtherance' " phrase.

Under the first clause of section 425.16, subdivision (e), the qualifying act is any statement or writing made before a legislative, executive or judicial proceeding. For the second clause, all that is needed is that the statement or writing be made "in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law." To fit under the third clause, the statement or writing must be made in a public forum or place, and must relate to an issue of "public interest."

These statutory requirements are straightforward and unambiguous. The confusion has come with case law that misreads and then needlessly misinterprets the statute. Braun relies on two cases: (1) Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 49 Cal.Rptr.2d 620 (Wollersheim ); and (2) Zhao v. Wong (1996) 48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909 (Zhao ).

(a) Wollersheim

In Wollersheim, the act fueling the plaintiff's SLAPP suit was the defendant's exercise of petition rights, in particular his successful prosecution of tort claims against his former...