McGarry v. University of San Diego

• Decision Date: 17 July 2007
• Docket Number: No. D048103.,D048103.
• Citation: 64 Cal.Rptr.3d 467,154 Cal.App.4th 97
• Court: California Court of Appeals Court of Appeals
• Parties: Kevin McGARRY, Plaintiff and Appellant, v. UNIVERSITY OF SAN DIEGO et al., Defendants and Respondents.

64 Cal.Rptr.3d 467

154 Cal.App.4th 97

Kevin McGARRY, Plaintiff and Appellant, v. UNIVERSITY OF SAN DIEGO et al., Defendants and Respondents.

No. D048103.

Court of Appeal, Fourth District, Division 1.

July 17, 2007.

Law Office of Robert N. Hocker and Robert N. Hocker, San Diego, CA, for Plaintiff and Appellant.

Luce, Forward, Hamilton & Scripps, Phillip L. Kossy and Richard R. Spirra, San Diego, CA, for Defendants and Respondents.

Sheppard, Mullin, Richter & Hampton and Guylyn R. Cummins, San Diego, CA, for the Copley Press, Ed Graney and Mark Zeigler as Amicus Curiae on behalf of Defendants and Respondents.

McDONALD, J.

Plaintiff Kevin McGarry's employment was terminated by the University of San Diego (University) as its head football coach in 2003. McGarry subsequently filed a lawsuit against University seeking damages for employment termination and against University and others for defamation. The employment termination aspect of McGarry's lawsuit is not involved in the present appeal.

The present appeal involves McGarry's claims against University and two University officials, Robert Pastoor and Mary Lyons, for defamation. These claims were premised first on statements contained in a newspaper article (the article), published in the San Diego Union Tribune (Newspaper) two days after McGarry's employment was terminated, reporting the reasons for the termination. McGarry's defamation claims were secondarily premised on statements made by Lyons during a meeting with parents of members of the football team concerning McGarry's employment termination.

All defendants filed motions to strike the defamation claims pursuant to Code of Civil Procedure section 425.16,¹ commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The hearing on the motions was continued to permit limited discovery. McGarry moved to compel the deposition of Newspaper's reporters to question them" about the article, but the trial court denied the motion pursuant to the so-called "Shield Law."² The trial court ultimately granted defendants' anti-SLAPP motions to strike the defamation claims.

On appeal, McGarry argues the anti-SLAPP law was inapplicable because neither the statements to the press nor the statements to the parents qualified as protected conduct under the anti-SLAPP law. He alternatively asserts that, even if the anti-SLAPP law does apply, the trial court's ruling must be reversed for two distinct reasons. First, he argues that, insofar as his defamation claim was rooted in the statements to the parents, he demonstrated a probability of success on the merits. Second, he argues that, insofar as his defamation claim was rooted in the statements in the article, the trial court's application of the Shield Law was error and had the effect of precluding him from discovering evidence necessary to satisfy his burden to show a likelihood of success on the merits of his claim.

I FACTUAL BACKGROUND

A. The Parties

McGarry was employed by University for 26 years before his employment was abruptly terminated in 2003. He was the head coach of University's football team for the past seven years of his tenure, and had been named coach of the year. Pastoor was Vice President of Student Affairs for University, and Lyons was President of University.

B. The Termination of Employment

Shortly before McGarry was fired, University's athletic director departed and University hired Ms. Nestor as the new athletic director. In early September 2003, shortly after Nestor's appointment, there was a tense exchange between McGarry and Nestor, and McGarry lodged a complaint against Nestor with University's Human Resources Department. In late September, shortly after McGarry's complaint, Nestor approached McGarry and stated there had been a complaint by trainers that McGarry had kicked a football at them during a practice. McGarry told Nestor footballs were routinely removed from the field as a safety precaution and McGarry would often kick or throw them off the field but he had never aimed one at anyone. Nestor appeared satisfied with McGarry's explanation.

Approximately one week later, Nestor witnessed a verbal argument between McGarry and one of his coaching assistants. McGarry and the assistant resolved their differences and continued working alongside each other without further incident. However, Nestor generated an interoffice memo dated October 8 that purported to confirm their discussion concerning the football kicking incident and memorialize McGarry's admission that he had kicked a football toward a player out of frustration with the player's multiple mistakes.

McGarry received Nestor's memo on October 16 and, later that evening, he received written instructions to report to Pastoor's office the following day. When McGarry arrived at Pastoor's office on October 17, one day before University's team was scheduled to play an important game in Indiana, McGarry was informed his employment had been terminated and he was banned from campus because of the football-kicking incident, the verbal argument incident, and a third incident (the cheerleader incident)³ of alleged misconduct.

C. The Statements

The Article

On Sunday, October 19, the article appeared in Newspaper stating, in its lead paragraph, that "[a] series of `incidents' over the past two months led to [McGarry's employment termination], several sources at the school told [Newspaper]." It recited that the coaches and staff had been informed of the termination on Friday morning and were explicitly told "not to comment publicly about it." Although the article stated Pastoor and Nestor declined to comment because of "confidentiality related to personnel matters," the article went on to say "several [U]niversity officials, speaking on the condition of anonymity, outlined a `culmination of events'" that led to the termination. The article later stated "the sources said three incidents in particular led to McGarry's immediate termination just hours before the team left for Indiana," and cited the football-kicking incident, the verbal argument incident, and the cheerleader incident.

The Meeting

On October 25, Pastoor and Lyons held a closed door meeting with parents of the football players to discuss McGarry's employment termination and introduce the interim head coach. At that meeting, parents asked whether the reasons stated in the article were the only reasons for his termination, or whether he had posed a threat or harm to the players, and Lyons responded she could not comment on the reasons for his termination. One parent, after stating that the timing of the termination was bad, asked, "Was it criminal or morality dealing with this school? Yes or No? [¶] ... [¶] If you say yes, I can live— I'll back you 100 [percent]. If you say no, your timing's bad and I can't back you [any] more. Criminal or morality?" Lyons eventually responded, "I can say that Coach McGarry was not involved to our knowledge in any criminal activity."

II THE LITIGATION

A. The Complaint

McGarry's defamation claims were based on the article and Lyons's statement at the meeting with parents. McGarry asserted University and Pastoor were responsible for leaking the three defamatory accusations contained in the article, they knew two of the incidents (the football-kicking incident and the obscenity-filled tirade in connection with the cheerleader incident) were false, and the third was an unremarkable dispute between coaches. He also asserted Lyons's comments to the parents, when considered in context, contained an implied accusation that McGarry had committed unspecified immoral acts warranting immediate dismissal.

B. The Motions

The Anti-SLAPP Motion

All defendants, asserting the gravamen of McGarry's claims were based on protected speech, moved to dismiss his defamation claims under the anti-SLAPP statute. Lyons argued McGarry could not show probable success on the merits because, even assuming her statement at the parents' meeting could be construed to contain an implied charge of immorality, the statement was not provably false and there was no clear and convincing evidence Lyons knew the statement was provably false. Pastoor, whose declaration denied he was the source of the leak for the article, asserted McGarry could not show probable success on the merits because McGarry had no admissible evidence that Pastoor was the source for the article's accusations. University asserted McGarry could not show probable success on the merits because University's liability was derivative of the liability of Pastoor and Lyons and, because the claims against them should be dismissed, the claims as against University necessarily failed.

The Shield Law Motion

McGarry moved for and obtained a continuance of the hearing on the anti-SLAPP motions, apparently without objection by University, to allow McGarry to depose the authors of the article to obtain confirmation of the contents of and sources for the article.⁴ However, Newspaper refused to allow the depositions under the Shield Law. When University was unable to determine the names of the sources who gave the reporters the information contained in the article,⁵ McGarry moved to compel the depositions of Newspaper's reporters.

McGarry's motion to compel argued he was entitled, at a minimum, to ask the reporters to confirm that the statements contained in the article were in fact made by "[U]niversity officials," and those questions would not transgress the Shield Law. He also argued Newspaper had waived the Shield Law because a reporter allegedly told a third party Pastoor was the source of the statements. Newspaper opposed the motion, asserting the information sought by McGarry was within the Shield Law, and the protections of the Shield Law create an absolute immunity against compelled disclosure rather than a waivable...