Taylor v. Cal. Air Nat'l Guard

• Decision Date: 05 September 2013
• Docket Number: C070759
• Parties: GARY TAYLOR, Plaintiff and Appellant, v. CALIFORNIA AIR NATIONAL GUARD et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

GARY TAYLOR, Plaintiff and Appellant, v. CALIFORNIA AIR NATIONAL GUARD et al., Defendants and Respondents.

C070759

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)

Filed: September 5, 2013

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No.

34201100110670CUPOGDS)

Plaintiff Gary Taylor, a member of the California Air National Guard, filed suit against defendants California National Guard and California Air National Guard (National Guard), Colonel John Crocker, and Major Thomas Keegan alleging defamation. Taylor's claims stemmed from an interview given to a Sacramento Bee reporter by Crocker and Keegan regarding an investigation into allegations that National Guard pilots, including Taylor, were receiving dual compensation. Defendants filed a demurrer and a motion to strike under Code of Civil Procedure section 425.16, the anti-SLAPP statute.¹ The trial court granted the motion to strike, finding Taylor's defamation claim arose from defendants' protected activity. Taylor appeals, arguing Crocker's and Keegan's statements were not protected speech, and he can prevail on the merits of his claim. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 1982 Taylor enlisted in the National Guard. He earned his pilot wings in June 1985 and served as a fighter pilot, instructor pilot, evaluation pilot, squadron commander, and operations group commander. In September 2009 Taylor was appointed commander of the 144th Fighter Wing in Fresno. The 144th was in charge of performing air sovereignty alert duties.

In March 2010 a federal audit team from the National Guard Bureau conducted an audit of the air sovereignty alert mission at the 144th Fighter Wing. The audit team found that " 'in some cases, pilots may have received pay twice in one day (pay for alert duty and pay for regular technician work, although not necessarily for the same 8-hour period.' " Alert duty pay boosted some pilots' annual salaries by tens of thousands of dollars.

In response to the audit, Taylor requested a legal review of the negative finding by the Staff Judge Advocate of the National Guard to determine whether the pay issue was in compliance with military regulations. On June 1, 2010, the Staff Judge Advocate prepared a written legal opinion which concluded that Taylor and the 144th Fighter Wing acted reasonably and within their proper authority in executing their mission, and that any technical violations were well within the legal interpretations contained in the relevant regulations.

However, as a result of the audit, Taylor was removed from his position as the 144th Fighter Wing commander in July 2010 and returned to his position as a member of the National Guard. He remained a member of the National Guard until November 2011.

At all times material to the complaint, Colonel Crocker was the Director of Government and Public Affairs of the National Guard; Major Keegan was a public affairs officer with the National Guard.

In December 2010 Crocker and Keegan met with a Sacramento Bee reporter at the National Guard headquarters. The reporter stated he was investigating allegations that some 144th Fighter Wing pilots were " 'double dipping' " in violation of United States law and military regulations. The reporter's source was the 2010 federal audit. The comments made by Crocker and Keegan during this interview form the basis of Taylor's defamation action.

Taylor filed suit, alleging defamation against defendants. According to Taylor, Crocker told the Sacramento Bee reporter, " 'There is at a minimum an appearance that (commanders) self-enriched, and boy, does that smell bad.' " Crocker stated: "[F]rom a criminal standpoint, we'll have to wait and see," but "from a leadership standpoint, there is no waiting and seeing." According to Crocker, Brigadier General Mary J. Kight, the California National Guard's top commander, had lost " 'full faith and credit in Taylor's leadership skills.' " Crocker also theorized that the improper payments might reach into the millions of dollars.

Crocker also stated the pilots that were grounded because of the alleged improper payments might have been confused about the law and relied on Taylor's guidance. Crocker told the reporter that " 'the money is less of an issue than the leadership, in my book. And General Kight fixed that.' "

Taylor's complaint also alleged defendants told the reporter he was under criminal investigation and had violated both United States law and military regulations. Keegan stated General Kight had ordered an audit of all National Guard units, but no othercompensation problems had come to light. In addition, Taylor claimed Lieutenant General Harry Wyatt ratified Crocker's and Keegan's statements when he told the reporter, " 'I have great faith and confidence in the men and women of the 144th Fighter Wing. These are certainly trying times for the rank and file. It's unfortunate the alleged actions of a few have brought discredit to those men and women.' "

Defendants filed a demurrer and "Motion to Strike/Anti-SLAPP." Taylor opposed the motion.

Following oral argument, the trial court granted defendants' motion to strike. The court found Taylor's defamation claim arose from defendants' protected activity under section 425.16. According to the court, defendants' statements to the Sacramento Bee reporter constituted acts in furtherance of their right to free speech in connection with a public issue. In addition, defendants' statements were made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or made in a public forum in connection with an issue of public interest.

The court also determined Taylor failed to establish a probability of prevailing on his defamation claim. Defendants' statements were privileged within the meaning of Civil Code section 47, and defendants were immune under Military and Veterans Code section 392.

Taylor filed a timely notice of appeal.

DISCUSSION

Anti-SLAPP Motions

Subdivision (b)(1) of section 425.16 sets forth the elements of an anti-SLAPP motion. It provides: "A cause of action against a person arising from any act of that person in furtherance of the person's right to petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."

Protected acts include any oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body; any oral statement made in a public forum in connection with an issue of public interest; or any other conduct in furtherance of the exercise of free speech in connection with a public issue. (§ 425.16, subd. (e)(2), (3), (4).) Governmental employees may seek dismissal under section 425.16 because they are persons within the meaning of the statute. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114.) "[I]f government has a legitimate role to play in the interchange of ideas . . . then government should have some measure of protection in performing that role, at least as to matters of public interest." (Id. at p. 1115.)

Section 425.16 requires the trial court to engage in a two-step process to determine whether to grant or deny a defendant's anti-SLAPP motion. First, the court considers whether the defendant has made a threshold showing that the challenged cause of action arises from a protected activity. (§ 425.16, subd. (b)(1).) The defendant bears the burden of showing the plaintiff's cause of action arises from the defendant's exercise of free speech or petition rights as defined in section 415.16, subdivision (e). If the defendant makes this threshold showing, the burden shifts to the plaintiff to make a prima facie showing of facts that, if credited by the trier of fact, would sustain a favorable judgment. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)

We review de novo a trial court's ruling on a motion to strike under section 425.16. "Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.) On a motion to strike under section 425.16, every legitimate inference must be drawn from the plaintiff's evidence. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 828.) However, we must interpretthe anti-SLAPP statute broadly in order to encourage participation in matters of public significance. (§ 425.16, subd. (a).)

Protected Activity

The statements made by Crocker and Keegan that Taylor claims defamed him were made to a newspaper reporter and concerned an investigation by the National Guard into payment irregularities. As such, these statements were protected speech under section 425.16, subdivisions (e)(2), (3), and (4).

Section 425.16, subdivision (e)(2) encompasses any cause of action against a person arising from any statement or writing made in, or in connection with, an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding or body. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734.) Defendants' comments concerned the audit and investigation by the National Guard Bureau. They made their statements to a newspaper reporter, and the statements were reported in the press, a public forum. In addition, the allegedly defamatory remarks concerned an issue of public interest: an...