Wilson v. Cable News Network, Inc.

• Decision Date: 13 December 2016
• Docket Number: B264944
• Citation: 211 Cal.Rptr.3d 724,6 Cal.App.5th 822
• Court: California Court of Appeals Court of Appeals
• Parties: Stanley WILSON, Plaintiff and Appellant, v. CABLE NEWS NETWORK, INC., et al., Defendants and Respondents.

6 Cal.App.5th 822

211 Cal.Rptr.3d 724

Stanley WILSON, Plaintiff and Appellant,

v.CABLE NEWS NETWORK, INC., et al., Defendants and Respondents.

B264944

Court of Appeal, Second District, Division 1, California.

Filed December 13, 2016

Law Offices of Lisa L. Maki, Lisa L. Maki, Los Angeles, Jill McDonell, Jennifer Ostertag ; Shegerian & Associates and Carney R. Shegerian, Santa Monica, for Plaintiff and Appellant.

Mitchell Silberberg & Knupp, Adam Levin and Jolene Konnersman, Los Angeles, for Defendants and Respondents.

Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox, and Dan Laidman, Los Angeles, for Los Angeles Times Communications LLC, CBS Corporation, NBCUniversal Media, LLC, ABC, Inc., Fox Networks Group, Inc., and The California Newspaper Publishers Association as Amici Curiae on behalf of Defendants and Respondents.

LUI, J.

The trial court granted defendants' anti-SLAPP motion (Code Civ. Proc., § 425.16¹ ) against a former employee alleging discrimination, retaliation, wrongful termination, and defamation. Plaintiff contends the defendants' conduct and statement did not arise from an act in furtherance of their right of free speech or to petition for redress of grievances, and were not in connection with an issue of public interest, and therefore fell outside the scope of the anti-SLAPP statute. We agree and reverse. This is a private employment discrimination and retaliation case, not an action designed to prevent defendants from exercising their First Amendment rights. Defendants may have a legitimate defense but the merits of that defense should be resolved through the normal litigation process, with the benefit of discovery, and not at the initial phase of this action.

BACKGROUND

1. Plaintiff's complaint

In his complaint filed in October of 2014, plaintiff alleges he is a 51-year-old African- and Latino-American who worked for Cable News Network, Inc., CNN America, Inc., Turner Services, Inc., and Turner Broadcasting System, Inc. (CNN) from 1996 through January 28, 2014. He became a producer in 2000 and was promoted to the "Producer II" rank in 2003. Throughout his employment with CNN, plaintiff produced "stories, investigative reports, and live remote coverage, including breaking news, political coverage, and documentary programs." He also "contributed to CNN.com with original stories and companion pieces to support reporter packages." Plaintiff received "above-satisfactory" performance reviews for the entire duration of his employment at CNN and also received numerous awards for breaking news, investigative reporting, and documentary programs, including Associated Press and Emmy awards.

The complaint alleges that defendant Peter Janos, who never liked plaintiff, was promoted to CNN western regional bureau chief in 2004 and became plaintiff's immediate or general supervisor. Plaintiff thereafter received no further promotions, even though he applied for a dozen openings. He alleges Janos intervened to prevent him from being selected for any of those positions. The final opening at CNN for which plaintiff applied was as a producer at the White House. Plaintiff requested Janos's endorsement for the position, but Janos refused. The job was offered to a younger, Caucasian candidate with less experience.

The complaint alleges that beginning in 2004 plaintiff repeatedly complained to the Los Angeles deputy bureau chief and senior vice-president of human resources about CNN's failure to promote African-American men. No investigation or corrective action resulted from plaintiff's complaints. In 2005 plaintiff made a written complaint to Janos "about the culture of blame or condemnation of CNN colleagues when technical mistakes occur." "In retaliation, Janos issued Plaintiff a ‘Written Warning Regarding Performance.’ "

In 2010 plaintiff's wife began "expensive fertility treatments" paid for by plaintiff's CNN-provided health insurance. The complaint alleges that the infertility of plaintiff's wife constituted a disability within the scope of Government Code section 12926, subdivision (k).² CNN asked plaintiff to keep its human resources manager apprised of the treatments. Plaintiff's wife eventually became pregnant and had twins in September of 2013. Plaintiff took five weeks of paternity leave.

The complaint alleges that upon plaintiff's return from paternity leave, Janos gave high-profile assignments to Jack Hannah, a younger Caucasian man with less experience than plaintiff who only recently had been promoted to producer, while often relegating plaintiff to "in-house packaging and fill-in work on the Assignment Desk." The complaint alleges Janos did this both as a step toward replacing plaintiff "because of his ... age, race, color, association with a disabled person, and ancestry" and in retaliation for taking paternity leave and complaining about discrimination in the workplace. When plaintiff complained, Janos "told Plaintiff that he needed to step up his work load and keep up with Hannah."

On January 7, 2014, plaintiff was assigned to cover a press conference regarding Sheriff Lee Baca's retirement. Plaintiff submitted a story for "copy edit," and the editor, with whom plaintiff had not worked before, expressed concern over three sentences that she said required attribution because they were too similar to another report. The editor informed Janos, who, without talking to plaintiff, decided not to publish the story. Over the next two days Janos refused to listen to plaintiff's explanation, told him there would be "consequences," initiated an audit of plaintiff's work, and placed plaintiff on leave of absence.

On January 28, 2014, Janos fired plaintiff. Nothing was said about any audit findings. The complaint alleges the stated reasons were pretext and the real reasons were discrimination and retaliation. It further alleges plaintiff was replaced by a less experienced Caucasian under the age of 40. Plaintiff was thereafter unable to find work in broadcast journalism, and he alleged that defendants "have purposely published to third parties, including prospective employers, [knowingly] false statements accusing Plaintiff of dishonesty in his profession," thereby irreparably damaging his reputation.

The first cause of action in the complaint alleges employment discrimination on the basis of age, race, color, ancestry, and association with a person with a disability, through the acts of "denial of promotions, assignment to menial tasks, refusal to investigate discrimination and retaliation, failure to remedy or prevent discrimination and retaliation, termination, and defamation."

Plaintiff's second cause of action is retaliation (through the same acts) for protected activities, including taking paternity leave and complaining about defendants' discriminatory conduct.

Plaintiff's third cause of action alleges that the same acts violated Government Code section 12945.2 because they were substantially motivated by his paternity leave.

The fourth cause of action alleges failure to take all reasonable steps necessary to prevent discrimination and retaliation. (Gov. Code, § 12940, subd. (k).)

The fifth cause of action alleges wrongful termination in violation of public policy, based upon the aforementioned discrimination and retaliation.

The sixth cause of action, for declaratory relief, seeks a declaration "that Defendants discriminated and retaliated against him on the basis of age, race, color, ancestry, association with a disabled woman, engagement in protected activity, and/or some combination of these protected characteristics."

Plaintiff's seventh cause of action is defamation. It alleges defendants published the following statement with knowledge of its falsity: "that Plaintiff had plagiarized the passages in the Baca story and thereby violated CNN standards and practices."

2. Defendants' anti-SLAPP motion

After answering the complaint, defendants filed a special motion to strike all causes of action pursuant to section 425.16, also known as an anti-SLAPP motion.

As part of their evidentiary showing, defendants provided an e-mail from Cathy Straight, the copy editor who raised concerns about plaintiff's story on Baca's retirement. The e-mail included three excerpts from plaintiff's article and three corresponding excerpts from a Los Angeles Times article, with the similar passages in controversy in boldface. The first of these in plaintiff's article was "who spent 48 years with the department, including 15 as sheriff"; the Times article had identical text, minus the comma. The second controversial segment in plaintiff's article stated, "The news of Baca's decision to step down startled people inside and outside the agency. He was engaged in a tough re-election battle amid several scandals that had plagued the department." The Times article stated, "The news of Baca's decision to step down stunned people inside and outside the agency. He was locked in a tough reelection battle amid several scandals that had beset the department." The third passage in issue in plaintiff's article stated, "Last year, the U.S. Department of Justice also accused sheriff's deputies of engaging in widespread unlawful searches of homes, improper detentions, unreasonable force and a systematic effort to discriminate against African Americans who received low-income, subsidized housing in the Antelope Valley section of Los Angeles." The comparable segment of the Times article was, "Last year, the U.S. Department of Justice accused sheriff's deputies of engaging in widespread unlawful searches of homes, improper detentions and unreasonable force as Antelope Valley authorities conducted a systematic effort to discriminate against African Americans who received low-income subsidized housing." Plaintiff's entire article is not in the appellate record.

The trial court granted the motion in its entirety, and plaintiff appealed.

DISCUSSION

1. Pertinent principles regarding anti-SLAPP motions

a. Statutory framework

The Legislature enacted section 425.16,...