LA Times' Respondents Brief For anti-SLAPP Motion in Ted Rall v. Ted Rall Et Al.

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
Pursuant to California Rule of Court 8.208, Defendants and
Respondents Austin Beutner, Nicholas Goldberg, Paul Pringle,
Deirdre Edgar, tronc, Inc. (f/k/a Tribune Publishing Company),
Tribune 365 LLC, Los Angeles Times Communications LLC, and
Tribune Interactive, LLC (collectively “Respondents”), hereby
certify:
Los Angeles Times Communications LLC is wholly owned
by NantMedia Holdings, LLC.
Tribune 365 LLC and Tribune Interactive, LLC are wholly
owned by tronc, Inc. (f/k/a Tribune Publishing Company), which
is publicly traded. Merrick Venture Management Holdings, LLC
and California Capital Equity, LLC own 10 percent or more of
tronc, Inc.’s stock.

TABLE OF CONTENTS
Page
I. SUMMARY OF ARGUMENT ....................................................... 19
II. FACTUAL & PROCEDURAL BACKGROUND .......................... 24
A. The Parties. ............................................................................ 24
B. Rall’s Freelancing For The Times......................................... 24
C. Rall’s Blog Post. .................................................................... 26
D. The Lawsuit ........................................................................... 29
III. STANDARD OF REVIEW ............................................................. 30
IV. THE SLAPP STATUTE APPLIES TO RALL’S CLAIMS ........... 31
A. Rall’s Claims Arise From The Times’ Conduct In

Furtherance Of Protected Speech. ......................................... 33
1. The Times’ Decision Not To Publish Rall’s

Work Was An Exercise Of Its First Amendment
Rights. ........................................................................ 33
2. Rall Conflates The First And Second Prongs Of

The SLAPP Analysis.................................................. 40
B. Rall’s Claims Arise In Connection With An Issue Of

Public Interest. ....................................................................... 43
1. The Public Interest Requirement Must Be

Broadly Construed. .................................................... 43
2. Rall’s Narrow Test Is Contrary To California

Law. ............................................................................ 44
3. The Times’ Conduct Was Connected To

Matters Of Public Interest. ......................................... 46
V. RALL DID NOT DEMONSTRATE A PROBABILITY OF

PREVAILING ON HIS CLAIMS.................................................... 49
A. Rall’s Content Claims Were Properly Stricken. ................... 50
3 DAVIS WRIGHT TREMAINE LLP

865 S. FIGUEROA ST, SUITE 2400
LOS ANGELES, CALIFORNIA 90017-2566
(213) 633-6800
:
1. The Times’ Articles Are Absolutely Privileged
As Fair Reports Of Official Proceedings And
Records. ...................................................................... 51
a. The Fair Report Privilege Applies To

The Times’ Reports About LAPD
Proceedings. .................................................... 52
b. Rall’s Attempts To Evade The Fair

Report Privilege Are Baseless. ....................... 59
c. The Privilege Applies To The Articles

As A Matter Of Law. ...................................... 70
2. Rall Failed To Demonstrate That Any Of The

Statements At Issue Are Actionable. ......................... 74
a. Rall Did Not Show That Any Statements

At Issue Are Materially False Or
Defamatory...................................................... 74
b. Subjective Expression In The Articles Is

Not Actionable. ............................................... 84
3. Rall Failed To Comply With The Retraction

Statute And Did Not Demonstrate Recoverable
Damages. .................................................................... 89
4. Actual Malice Is Irrelevant At This Stage. ................ 93
5. Rall Abandoned His Duplicative Emotional

Distress Claim. ........................................................... 94
B. Rall’s Publication Claims Were Properly Stricken. .............. 95
1. The First Amendment Protects The Times’

Absolute Right To Decide What To Publish. ............ 95
2. Rall’s Publication Claims Fail Because He Was

Not An Employee. .................................................... 103
3. Rall’s Publication Claims Fail For Other

Reasons. ................................................................... 110
a. Rall’s Wrongful Termination Claim Was

Properly Stricken........................................... 111

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b. Rall’s “Contract” Claims Fail Because
The Times Did Not Waive Its
Constitutional Right Of Editorial
Control. ......................................................... 115
c. Rall’s Labor Code § 1050 Claim Was

Properly Stricken........................................... 120
VI. THE TRIAL COURT SHOULD HAVE SUSTAINED

RESPONDENTS’ EVIDENTIARY OBJECTIONS ..................... 121
VII. CONCLUSION .............................................................................. 122

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TABLE OF AUTHORITIES
Page
CASES
420 Caregivers v. City of Los Angeles,

219 Cal.App.4th 1316 (2012) ...................................................... 112, 117
AEG v. Snepp,
171 Cal.App.4th 598 (2009) ............................................................ 90, 93
ALADS v. Los Angeles Times,

239 Cal.App.4th 808 (2015) ................................................................ 112
Ali v. L.A. Focus Publication,

112 Cal.App.4th 1477 (2003) .............................................. 109, 110, 114
Ampersand Publ’g v. NLRB,

702 F.3d 51 (D.C. Cir. 2012) ......................................................... 97, 100
Argentieri v. Zuckerberg,
8 Cal.App.5th 768 (2017) ................................................................ 57, 61
Arnold v. Mutual of Omaha,

202 Cal.App.4th 580 (2011) ........................................................ 107, 108
Associated Press v. NLRB,

301 U.S. 103 (1937) ..................................................................... 100, 101
Balzaga v. Fox News,

173 Cal.App.4th 1325 (2009) .......................................................... 53, 75
Baral v. Schnitt,
1 Cal.5th 376 (2016) .............................................................................. 51
Barry v. State Bar of California,

2 Cal.5th 318 (2017) ........................................................................ 31, 37
Beaumont-Jacques v. Farmers Group,

217 Cal.App.4th 1138 (2013) ...................................................... 107, 108
Bel Air Internet v. Morales,

20 Cal.App.5th 924 (2018) .................................................................... 37

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Berkeley Police Ass’n v. City of Berkeley,
76 Cal.App.3d 931 (1977) ..................................................................... 61
Berkeley Police Ass’ v. City of Berkeley,

167 Cal.App.4th 385 (2008) .................................................................. 62
Blatty v. New York Times,

42 Cal.3d 1033 (1986) ................................................................... 50, 103
Braun v. Chronicle Publ’g Co.,

52 Cal.App.4th 1036 (1997) ........................................................... passim
Brodeur v. Atlas Entertainment,

248 Cal.App.4th 665 (2016) ...................................................... 45, 49, 77
Burrill v. Nair,
217 Cal.App.4th 357 (2013) ............................................................ 56, 57
California Teachers Ass’n v. Governing Board,

45 Cal.App.4th 1383 (1996) ................................................................ 112
Carter v. Escondido Union HSD,

148 Cal.App.4th 922 (2007) ................................................................ 111
Carver v. Bonds,
135 Cal.App.4th 328 (2005) ........................................................... passim
CBS v. Democratic Nat’l Comm.,

412 U.S. 94 (1973) ......................................................................... 96, 100
Christoff v. Union Pacific Railroad,

134 Cal.App.4th 118 (2005) .................................................................. 29
City of Glendale v. George,

208 Cal.App.3d 1394 (1989) ............................................................... 116
City of Moorpark v. Superior Court,

18 Cal.4th 1143 (1998) ........................................................................ 115
Clarendon America Ins. v. N. A. Capacity Ins.,

186 Cal.App.4th 556 (2010) .................................................................. 54
Claybrooks v. ABC,
898 F.Supp.2d 986 (M.D. Tenn. 2012) .................................................. 99

(213) 633-6800
:
Coastal Abstract Serv. v. First Am. Title Ins.,
173 F.3d 725 (9th Cir. 1999) ................................................................. 92
Cochran v. NYP Holdings,

58 F.Supp.2d 1113 (C.D. Cal. 1998) ..................................................... 85
Colt v. Freedom Comm’n,

109 Cal.App.4th 1551 (2003) .................................................... 68, 69, 71
Comstock v. Aber,
212 Cal.App.4th 931 (2012) ............................................................ 32, 95
Correia v. Santos,
191 Cal.App.2d 844 (1961) ................................................................... 93
Crane v. Arizona Republic,

972 F.2d 1511 (9th Cir. 1992) ........................................................ passim
Cross v. Cooper,
197 Cal.App.4th 357 (2011) .................................................................. 42
Cross v. Facebook,
14 Cal.App.5th 190 (2017) ........................................................ 30, 35, 38
Damon v. Ocean Hills Journalism Club,

85 Cal.App.4th 468 (2000) .................................................................... 43
Day v. Alta Bates,

98 Cal.App.4th 243 (2002) .................................................................... 66
Dickinson v. Cosby,
17 Cal.App.5th 655 (2017) .................................................................... 89
Doe v. Roman Catholic Archbishop,

177 Cal.App.4th 209 (2009) .................................................................. 72
Dorsey v. National Enquirer,

973 F.2d 1431 (9th Cir. 1992) ......................................................... 64, 70
DuPont Merck Pharm. v. Superior Court,

78 Cal.App.4th 563 (2000) .................................................................... 41
Dynamex Ops. West, v. Superior Court,

4 Cal.5th 903 (2018) ............................................................................ 105

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Eisenberg v. Alameda Newspapers,
74 Cal.App.4th 1359 (1999) .......................................... 98, 103, 114, 116
Equilon Enterprises v. Consumer Cause,

29 Cal.4th 53 (2002) .............................................................................. 31
Ferlauto v. Hamsher,
74 Cal.App.4th 1394 (1999) .................................................... 82, 84, 116
Fisher v. Larsen,
138 Cal.App.3d 627 (1982) ................................................................... 92
Foley v. Interactive Data,

47 Cal.3d 654 (1988) ................................................................... 111, 119
Four Navy Seals v. AP,

413 F. Supp. 2d 1136 (S.D. Cal. 2005) ............................................ 45, 90
Fox Searchlight Pictures v. Paladino,

89 Cal.App.4th 294 (2001) .............................................................. 40, 41
Franklin v. Dynamic Details,

116 Cal.App.4th 375 (2004) ............................................................ 79, 88
Freedom Newspapers v. Superior Court,

4 Cal.4th 652 (1992) .............................................................................. 90
Gallanis-Politis v. Medina,
152 Cal.App.4th 600 (2007) .................................................................. 36
Gang v. Hughes,
111 F.Supp. 27 (S.D. Cal. 1953) ............................................................ 92
Gates v. Discovery Communications,

34 Cal.4th 679 (2004) ...................................................................... 37, 51
Gilbert v. Sykes,
147 Cal.App.4th 13 (2007) ............................................................. passim
Gomes v. Fried,
136 Cal.App.3d 924 (1982) ................................................................... 91
Governor Gray Davis Committee v. American Taxpayers

Alliance,
102 Cal.App.4th 449 (2002) .................................................................. 41

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Greater L.A. Agency on Deafness v. CNN,
742 F.3d 414 (9th Cir. 2014) ........................................................... 35, 48
Green v. Cortez,
151 Cal.App.3d 1068 (1984) ..................................................... 53, 55, 58
Green v. Ralee Eng’g

19 Cal.4th 66 (1998) ............................................................................ 111
Guz v. Bechtel Nat’l,

24 Cal.4th 317 (2000) .................................................................. 115, 119
Hall v. Time Warner,

153 Cal.App.4th 1337 (2007) ................................................................ 44
Handelsman v. San Francisco Chronicle,

11 Cal.App.3d 381 (1970) ............................................................... 68, 71
Hansen v. CDCR,
171 Cal.App.4th 1537 (2008) ........................................................ 42, 104
Hausch v. Donrey,
833 F.Supp. 822 (D. Nev. 1993) .................................................. 100, 101
Hawran v. Hixson,
209 Cal.App.4th 256 (2012) .................................................................. 63
Hayward v. Watsonville Register-Pajaronian,

265 Cal.App.2d 255 (1968) ....................................................... 53, 54, 64
Healthsmart Pacific v. Kabateck,

7 Cal.App.5th 416 (2016) ............................................................... passim
Hecimovich v. Encinal School Parent Teacher Org.,

203 Cal.App.4th 450 (2012) ............................................................ 42, 43
Holmes v. Petrovich Dev. Co., LLC,

191 Cal.App.4th 1047 (2011) ................................................................ 74
Howard v. Antilla,
294 F.3d 244 (1st Cir. 2002) .................................................................. 86
Howard v. Oakland Tribune,

199 Cal.App.3d 1124 (1988) ..................................................... 53, 55, 59

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Hughes v. Pair,
46 Cal.4th 1035 (2009) .......................................................................... 95
Hunter v. CBS,
221 Cal.App.4th 1510 (2013) ......................................................... passim
Ingels v. Westwood One,

129 Cal.App.4th 1050 (2005) ................................................................ 36
Integrated Healthcare Holdings, v. Fitzgibbons,

140 Cal.App.4th 515 (2006) ................................................................ 116
J-M Manufacturing v. Phillips & Cohen,

247 Cal.App.4th 87 (2016) ........................................................ 52, 65, 71
Jackson v. AEG Live,

233 Cal.App.4th 1156 (2015) ...................................................... 105, 108
James v. San Jose Mercury News,

17 Cal.App.4th 1 (1993) ........................................................................ 85
Janklow v. Newsweek,
788 F.2d 1300 (8th Cir. 1986) ............................................................... 89
Jensen v. Hewlett Packard,

14 Cal.App.4th 958 (1993) .................................................................... 92
Jordan-Benel v. Universal Studios,

859 F.3d 1184 (9th Cir. 2017) ............................................................. 103
Kahn v. Bower,
232 Cal.App.3d 1599 (1991) ................................................................. 51
Kelly v. General Telephone,

136 Cal.App.3d 278 (1982) ................................................................. 120
Koch v. Goldway,
817 F.2d 507 (9th Cir. 1987) ................................................................. 95
Kronemyer v. IMDB,
150 Cal.App.4th 941 (2007) ............................................................ 35, 48
LBPOA v. City of Long Beach,

59 Cal.4th 59 (2014) ............................................................................ 112

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Lieberman v. KCOP,
110 Cal.App.4th 156 (2003) .................................................................. 36
Lockheed Aircraft v. Superior Court,

28 Cal.2d 481 (1946) ........................................................................... 113
Lyle v. Warner Bros.,

38 Cal.4th 264 (2006) ............................................................................ 97
Macias v. Hartwell,
55 Cal.App.4th 669 (1997) .................................................................... 50
McClatchy Newspapers v. Superior Court,

189 Cal.App.3d 961 (1987) ............................................................ passim
McDermott v. Ampersand Publ’g,

2008 WL 8628728 (C.D. Cal. May 22, 2008) ..................................... 101
McDermott v. Ampersand Publ’g,

593 F.3d 950 (9th Cir. 2010) ............................................... 21, 34, 96, 98
McGarry v. University of San Diego,

154 Cal.App.4th 97 (2007) .................................................................... 48
Medico v. Time, Inc.,

643 F.2d 134 (3d Cir. 1981) .................................................................. 72
Melaleuca v. Clark,
66 Cal.App.4th 1344 (1998) .................................................................. 74
Miami Herald v. Tornillo,

418 U.S. 241 (1974) ......................................................................... 34, 96
Milkovich v. Lorain Journal,

497 U.S. 1 (1990) ................................................................................... 84
Mission Insurance v. Workers’ Comp. Appeals Bd.,

123 Cal.App.3d 211 (1981) ................................................................. 107
Mitchell v. International Association of Machinists,

196 Cal.App.2d 796 (1961) ................................................................. 113
Moldea v. New York Times,

22 F.3d 310 (D.C. Cir. 1994) ................................................................. 85

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Morris v. Nat’l Federation of The Blind,
192 Cal.App.2d 162 (1961) ................................................................... 93
Moyer v. Amador Valley Jt. Union High School Dist.,

225 Cal.App.3d 720 (1990) ................................................................... 85
Navellier v. Sletten,
106 Cal.App.4th 763 (2003) ................................................................ 121
Navellier v. Sletten,
29 Cal.4th 82 (2002) .................................................................. 31, 33, 41
Neighbours v. Buzz Oates Enterprises,

217 Cal.App.3d 325 (1990) ................................................................... 32
Nelson v. McClatchy Newspapers,

936 P.2d 1123 (Wash. 1997) ................................................. 98, 101, 115
New York Times v. Sullivan,

376 U.S. 254 (1964) ............................................................................. 102
Newspaper Guild of Greater Philadelphia, Local 10 v. NLRB,

636 F.2d 550 (D.C. Cir. 1980) ............................................................... 98
Nygård v. Uusi-Kerttula,
159 Cal.App.4th 1027 (2008) .................................................... 43, 48, 93
O’Shea v. General Tel.,

193 Cal.App.3d 1040 (1987) ............................................................... 120
Ollman v. Evans,
750 F.2d 970 (D.C. Cir. 1984) ............................................................... 86
Opdyk v. California Horse Racing Bd.,

34 Cal.App.4th 1826 (1995) .................................................................. 32
PPOA v. Superior Court,

240 Cal.App.4th 268 (2015) .......................................................... 47, 112
Pasadena Star-News v. Superior Court,

203 Cal.App.3d 131 (1988) ................................................................... 46
Passaic Daily News v. NLRB,

736 F.2d 1543 (D.C. Cir. 1984) ........................................................... 100

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Paterno v. Superior Court,
163 Cal.App.4th 1342 (2008) .......................................................... 70, 71
Paulus v. Bob Lynch Ford,

139 Cal.App.4th 659 (2006) .................................................................. 94
People v. Baniqued,
85 Cal.App.4th 13 (2000) ...................................................................... 32
People v. Bonilla,
41 Cal.4th 313 (2007) ............................................................................ 32
Pierce v. San Jose Mercury News,

214 Cal.App.3d 1626 (1989) ................................................................. 71
Porter v. Guam Publ’ns,

643 F.2d 615 (9th Cir. 1981) ................................................................. 53
POST v. Superior Court,

42 Cal.4th 278 (2007) .................................................................... 47, 112
Pridonoff v. Balokovich,
36 Cal.2d 788 (1951) ............................................................................. 92
Partington v. Bugliosi,
56 F.3d 1147 (9th Cir. 1995) ........................................................... 86, 88
Ramona Unified School Dist. v. Tsiknas,

135 Cal.App.4th 510 (2005) .................................................................. 33
Reed v. Gallagher,
248 Cal.App.4th 841 (2016) .................................................................. 75
Reeves v. ABC,
719 F.2d 602 (2d Cir. 1983) .................................................................. 60
Reid v. Google,
50 Cal.4th 512 (2010) ............................................................................ 73
Rivera v. First DataBank,

187 Cal.App.4th 709 (2010) ........................................................... passim
Rope v. Auto-Chlor Sys. of Wash.,

220 Cal.App.4th 635 (2013) ................................................................ 111

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Rudnick v. McMillan,
25 Cal.App.4th 1183 (1994) .................................................................. 85
S. G. Borello & Sons, v. Dep’t of Ind. Rel.,

48 Cal.3d 341 (1989) ................................................................... 105, 106
San Diegans for Open Gov’t v. SDSU Research Foundation,

13 Cal.App.5th 76 (2017) (review granted, Jan. 24, 2018) ................... 34
Sarver v. Chartier,
813 F.3d 891 (9th Cir. 2016) ................................................................. 45
Schaffer v. County of San Francisco,

168 Cal.App.4th 992 (2008) ................................................................ 117
Seelig v. Infinity Broadcasting,

97 Cal.App.4th 798 (2002) ........................................................ 43, 48, 84
Sheley v. Harrop,
9 Cal.App.5th 1147, 1167 (2017) .......................................................... 34
Shulman v. Group W Productions,

18 Cal.4th 200 (1998) .................................................................... 46, 103
Simmons v. Allstate,
92 Cal.App.4th 1068 (2001) ................................................................ 117
Sinatra v. Chico Unified School District,

119 Cal.App.4th 701 (2004) ................................................................ 112
Sipple v. Foundation for Nat. Progress,

71 Cal.App.4th 226 (1999) ............................................................. passim
Smedley v. Capps, Staples, Ward, Hastings and Dodson,

820 F.Supp. 1227 (N.D. Cal. 1993) ..................................................... 113
Smith v. California,
361 U.S. 147 (1959) ............................................................................... 96
Smith v. Press Democrat,

2011 U.S. Dist. LEXIS 121449 (N.D. Cal. Oct. 20, 2011) ................... 70
Soukup v. Law Offices of Herbert Hafif,

39 Cal.4th 260 (2006) .......................................................................... 104

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Summit Bank v. Rogers,
206 Cal.App.4th 669 (2012) .................................................................. 44
Sylmar Air Conditioning v. Pueblo Contracting Svcs.,

122 Cal.App.4th 1049 (2004) .............................................................. 117
Taheri Law Group v. Evans,

160 Cal.App.4th 482 (2008) .................................................................. 37
Tamkin v. CBS,
193 Cal.App.4th 133 (2011) ............................................................ 36, 44
Taus v. Loftus,
40 Cal.4th 683 (2007) .......................................................................... 121
Taylor v. Viacom,
2018 U.S. Dist. LEXIS 95391 (C.D. Cal. 2018) ................................... 36
Terry v. Davis Community Church,

131 Cal.App.4th 1534 (2005) ................................................................ 45
Thomas v. Los Angeles Times,

189 F.Supp.2d 1005 (C.D. Cal. 2002) ............................................. 78, 87
Tieberg v. Unemployment Ins. App. Board,

2 Cal.3d 943 (1970) ............................................................................. 108
Tuszynska v. Cunningham,
199 Cal.App.4th 257 (2011) .................................................................. 38
Varisco v. Gateway Science & Eng.,

166 Cal.App.4th 1099 (2008) ...................................... 104, 105, 106, 108
Vergos v. McNeal,
146 Cal.App.4th 1387 (2007) ................................................................ 36
Vivian v. Labrucherie,
214 Cal.App.4th 267 (2013) .................................................................. 37
Vogel v. Felice,
127 Cal.App.4th 1006 (2005) .......................................................... 75, 77
Walker v. Boeing,
218 F.Supp.2d 1177 (C.D. Cal. 2002) ................................................. 120

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Wilson v. CNN,
6 Cal.App.5th 822 (2016) (review granted, March 1,
2017) ...................................................................................................... 39
Wong v. Jing,
189 Cal.App.4th 1354 (2010) ................................................................ 41
STATUTES
California Public Records Act ......................................................... 27, 62, 73
Civil Code
§ 47(b) ............................................................................................ 55, 120
§ 47(d) ............................................................................................. passim
§ 47(d)(1) ................................................................................... 52, 54, 61
§ 47(d)(2) ............................................................................................... 61
§ 47, subd. (d) ........................................................................................ 60
§ 48a ..................................................................................... 89, 90, 91, 93
§ 48a(d)(2) ............................................................................................. 90
Code of Civil Procedure

§ 425.16........................................................................................... passim
§ 425.16(a) ............................................................................................. 31
Labor Code
§ 1050................................................................................... 103, 120, 121
§ 1054................................................................................................... 121
§ 1101................................................................................... 112, 113, 115
§ 1102................................................................................................... 112
§ 1102.5.......................................................................... 29, 104, 110, 111
§ 2922................................................................................................... 111
§ 3353................................................................................................... 104
National Labor Relations Act .................................................................... 101
Vehicle Code § 40000.15 ........................................................................... 82
RULES
California Rules of Court 8.204(a)(1)(B) .................................................... 32
CONSTITUTIONAL PROVISIONS
California Constitution Article I, § 2........................................................... 51

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United States Constitution
First Amendment ............................................................................ passim
Fourteenth Amendment ......................................................................... 51
OTHER AUTHORITIES
Restatement (2d) of Torts § 558 (1977)....................................................... 50

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TO THE HONORABLE PRESIDING JUSTICE AND
ASSOCIATE JUSTICES OF THE SECOND APPELLATE
DISTRICT COURT OF APPEAL, DIVISION EIGHT:
Defendants/Respondents Austin Beutner, Nicholas
Goldberg, Paul Pringle, Deirdre Edgar, tronc, Inc., Tribune 365
LLC, Los Angeles Times Communications LLC, and Tribune
Interactive, LLC (“Respondents”), respectfully submit this brief
in support of the trial court’s orders striking Plaintiff/Appellant
Frederick Theodore Rall III’s (“Rall”) Complaint pursuant to
C.C.P. § 425.16 ( “SLAPP” statute), and request that this Court
affirm those orders in their entirety.
I. SUMMARY OF ARGUMENT
The trial court saw this litigation for what it is – a
retaliatory SLAPP suit brought to punish a newspaper for its
editorial decisions. Rall, a well-known editorial cartoonist and
controversial political commentator, wrote a blog post for The Los
Angeles Times’ (“The Times”) website in 2015, claiming he had
been the victim of police brutality during a jaywalking stop a
decade earlier. The Times later obtained LAPD records –
including Rall’s contemporaneous misconduct complaint and a
recording of the encounter – that showed glaring discrepancies
19
with his account, including Rall asking the supposedly abusive
officer for restaurant recommendations. 1/A.A./241-268
(Appellant’s Appendix). After investigating further, including
questioning Rall, The Times concluded that it would no longer
publish his work. The Times then published two articles
disclosing to readers the police records, Rall’s accounts, and The
Times’ conclusion that there were “serious questions about the
accuracy of Rall’s blog post.” 1/A.A./75.
Furious at being held accountable for what was, at
minimum, a gross exaggeration about his experience with the
LAPD, Rall sued twelve defendants, including The Times and
four individual journalists, claiming that the Articles defamed
him; he also asserted so-called “employment” claims against the
corporate defendants, even though he admitted that his
contributions to The Times were on a “freelance” basis. 1/A.A./39.
Rall’s “employment” claims do not allege any
discrimination, harassment, or pattern of conduct; instead, they
arise from The Times’ editorial decision to stop publishing Rall’s
work. As Rall’s own attorney admitted, the “employment” claims
are merely a distraction; this is a “standard defamation” case.
R.A.0024 (Respondents’ Appendix).
20
The trial court properly struck Rall’s meritless Complaint
in its entirety. As a threshold matter, Rall concedes that his
claims based on the Articles (the “Content Claims”) arise from
the exercise of free speech within the scope of the SLAPP statute.
(Section IV.A.) Rall’s remaining claims – labeled as
“employment” and “contract” claims – also fall within the SLAPP
statute, because they all arise directly from The Times’
constitutionally-protected editorial decision to stop publishing
Rall’s work. E.g., McDermott v. Ampersand Publ’g, 593 F.3d 950,
962 (9th Cir. 2010) (First Amendment protects “publisher’s choice
of writers [that] affects the expressive content of its newspaper”);
Hunter v. CBS, 221 Cal.App.4th 1510, 1522 (2013) (editorial
hiring decision is conduct in furtherance of free speech protected
by SLAPP statute); Section IV.A.
The Articles related to matters of substantial public
interest easily within the broad confines of the SLAPP law:
allegations of police misconduct raised by Rall, in which he
sought to interject his own alleged experience with the LAPD into
a controversy before the Los Angeles City Council, and a wider
national debate about policing methods. E.g., 1/A.A./237-239.
Rall inserted himself into the contentious public debate, using
21
The Times to reach its readership, in an attempt to portray
himself as a victim of police abuse. The inconsistencies between
Rall’s published account and official LAPD records also were
matters of substantial public interest, given the critical need for
news organizations to maintain public trust and be accountable
to the community.
Because the SLAPP statute applied, the burden fell on Rall
to present admissible evidence demonstrating a probability of
prevailing on his claims. (Section V.) He failed to meet his
burden.
First, Rall’s Content Claims (First, Second, Third, and
Eighth Causes of Action) were properly stricken, because the
privilege for fair reports about official government records and
proceedings encompass the Articles’ discussion about Rall’s
jaywalking encounter with LAPD and subsequent police
investigation. (Section V.A.1.) The trial court also properly
found that the complained-of statements are either substantially
true; subjective conclusions based on disclosed facts; and/or not
defamatory as a matter of law. (Section V.A.2.a.)
Second, Rall’s Content Claims fail because he did not
demand a retraction of most of the statements at issue, and did
22
not meet his burden of pleading or substantiating recoverable
damages. (Section V.A.3.)
Third, the trial court properly rejected Rall’s Publication
Claims (Fourth, Fifth, Sixth, Seventh, and Eighth Causes of
Action) because regardless of how they are styled, these claims
attempt to impose liability for The Times’ editorial decision to
stop publishing Rall’s work, and for The Times’ publication of
Articles advising readers about the discrepancies between Rall’s
account and the LAPD records that led to its decision. Federal
and state constitutional law prohibit such interference with
editorial functions and speech activities of a news organization.
(Section V.B.1.)
Fourth, Rall’s Publication Claims presuppose an
employment relationship that did not exist. Rall was a freelance
writer and cartoonist, not an employee. He cannot assert claims
based on rights given to employees. (Section V.B.2.)
Fifth, the Publication Claims independently fail, because
Rall did not plead or offer evidence to prove the elements of those
claims. (Section V.B.3.)
Finally, Rall’s OB does not even mention his emotional
distress claim, thereby abandoning any challenge to the trial
23
court’s order striking this meritless, duplicative cause of action.
(Section V.A.5.)
For all these reasons, Respondents respectfully request
that this Court affirm the trial court’s rulings striking Rall’s
Complaint in its entirety.
II. FACTUAL & PROCEDURAL BACKGROUND
A. The Parties.
Although Rall now tries to downplay his prominence (OB
47, 81), his Complaint says he is “a New York Times Best-selling
author of 19 books” and “one of the most widely syndicated
cartoonists in the United States.” 1/A.A./39. Rall has boasted
about being an influential public figure, including for
publications about police issues; Rall claims his political cartoons
have been “especially influential.” 3/A.A./678-679, 684. Even
Rall’s LAPD misconduct complaint that was the subject of the
blog post at issue here touted his celebrity “as both a talk-show
host on KFI Radio and as a nationally-syndicated editorial
cartoonist and columnist.” 1/A.A./256; 7/A.A./2004.
B. Rall’s Freelancing For The Times.
The Times published Rall’s work on a freelance basis from
2009 to July 2015. 1/A.A./39. Rall did not have an agreement to
24
provide freelance services for any particular time period, nor was
he constrained from working for other publications
simultaneously. 1/A.A./271; 3/A.A./716. While freelancing for
The Times, Rall published at least four books (1/A.A./330);
worked for a website called ANewDomain (1/A.A./295;
3/A.A./699); drew cartoons for the Daily Kos (1/A.A.340-350); and
received foundation funds for his work (7/A.A./724-725).
Rall, who is based in New York, did not work at The Times’
Los Angeles office, and The Times did not provide any of his
supplies. 1/A.A./271. Rall typically chose the subjects of his
cartoons and blog posts, and apart from setting publication
deadlines, The Times did not exercise control over when, where,
or how Rall prepared his work. Id. Rall did not have a
supervisor or performance reviews at The Times. 1/A.A./271-272.
The Times paid Rall for each item published, and did not make
payroll deductions for him. 1/A.A./271, 297-314.
Rall’s own description of the relationship, in an August 3,
2015 email to Mr. Goldberg, stated that he was “a freelance
cartoonist earning $200 per cartoon plus $100 per blog.”
1/A.A./282.
25
C. Rall’s Blog Post.
On May 11, 2015, The Times published a blog post by Rall
on the latimes.com website titled, “LAPD’s Crosswalk crackdown:
Don’t police have something better to do?” 1/A.A./40-41, 63-64.
Commenting about the LAPD’s pedestrian-ticketing practices
and a related City Council inquiry, Rall described being ticketed
for jaywalking himself, more than a decade earlier. Id. Rall
portrayed it as a violent encounter:
All of a sudden, a motorcycle officer zoomed over,
threw me up against the wall, slapped on the cuffs,
roughed me up and wrote a ticket. It was an ugly
scene, and in broad daylight it must have looked like
one, because within minutes there were a couple of
dozen passersby shouting at the cop.
1/A.A./63. Rall claimed the encounter ended when the officer
“threw [his] driver’s license into the sewer.” Id. Rall also
asserted that although he complained about the officer’s conduct,
the LAPD dismissed his complaint without ever notifying him.
Id.
After the blog was published, LAPD Chief Charlie Beck and
then-LAPD Commander Andrew Smith met with Defendant
26
Austin Beutner, who was The Times’ publisher. 1/A.A./231.
Commander Smith provided Beutner with official LAPD records
documenting the incident, including the jaywalking ticket issued
to Rall by LAPD Officer Willie Durr on October 3, 2001; Rall’s
October 13, 2001 misconduct complaint against Officer Durr; an
audio recording Officer Durr made of the encounter and
transcript prepared by the LAPD Internal Affairs Group; an
audio recording of voicemail messages LAPD Sgt. Russell Kilby
left during the internal investigation into Rall’s complaint; and a
letter from then-LAPD Chief Bernard C. Parks to Rall, notifying
him of the LAPD’s findings. 1/A.A./231-232.
Defendant Paul Pringle, a Times reporter, interviewed Rall
and provided him with copies of the LAPD records. 6/A.A./1430-
1465.1 On July 28, 2015, The Times published an Editor’s Note
discussing discrepancies between the records and the blog post
and presenting Rall’s explanations, before concluding that “the
recording and other evidence provided by the LAPD raise serious
questions about the accuracy of Rall’s blog post.” 1/A.A./66. The
1The LAPD provided Rall with copies of these same official

records pursuant to a California Public Records Act (“CPRA”)
request. 3/A.A./718; 7/A.A./1998-2018.
27
Note advised readers that “Rall’s future work will not appear in
The Times.” Id.
Rall responded with an aggressive public relations
campaign. The ensuing controversy over his blog post and The
Times’ decision to stop publishing Rall’s work drew extensive
media coverage. 3/A.A./699-715; 6/A.A./1486-7/A.A./1954.
On August 14, 2015, an attorney acting for Rall sent a
letter to The Times that purported to request a retraction, but no
allegedly defamatory statements were identified. 1/A.A./275.
On August 19, 2015, The Times published a second article,
titled “Times reaffirms decision that Ted Rall’s blog post did not
meet its standards.” 1/A.A./68-75. The Article discussed the
LAPD records in detail, and provided readers with links to them.
Id. The Times included Rall’s lengthy response, and linked to an
article Rall wrote defending his blog post, which contained a
version of the LAPD audio that Rall claimed had been
“enhanced.” Id.
On September 4, 2015, Rall emailed several individuals at
The Times, demanding a retraction of several statements in the
August 19 article. 1/A.A./277-279.
28
D. The Lawsuit
On March 24, 2016, Rall filed this lawsuit. 1/A.A./43-51.
He sued every defendant for defamation, “blacklisting,” and
emotional distress based on the content of the Articles. 1/A.A./54-
55, 60. He also sued the corporate defendants for breach of
contract, blacklisting, and violations of Labor Code § 1102.5,
based solely on The Times’ decision to stop publishing his work.
1/A.A./56-60.
Respondents filed SLAPP Motions on May 13, 2016.
1/A.A./112. More than four months later, Rall moved ex parte to
take discovery, which the trial court denied. R.A.0005-0008. A
duplicative discovery application brought several months later
also was denied. R.A.0010-0012.2
On June 21, 2017, the trial court granted the Individual
Defendants’ SLAPP Motion, striking all of Rall’s claims against
them. 18/A.A./5910. Rall then filed an untimely peremptory
challenge, unsuccessfully trying to prevent the same judge from
adjudicating the corporate defendants’ pending SLAPP Motion.
2 Rall has not challenged these rulings. Christoff v. Union

Pacific Railroad, 134 Cal.App.4th 118, 125 (2005) (“appellant’s
failure to discuss an issue in its opening brief forfeits the issue on
appeal”).
29
R.A.0014. Rall separated from his counsel, then sought
continuances on various grounds, including to seek new
representation. R.A.0014-0037. After granting one continuance,3
the trial court heard the Times Defendants’ SLAPP Motion on
July 14, 2017. R.A.0043.
On August 4, 2017, the trial court granted the Times
Defendants’ SLAPP Motion in its entirety. 18/A.A./5918.4 Rall
filed his Notice of Appeal on August 18, 2017. 18/A.A./5934.
III. STANDARD OF REVIEW
This Court’s review of whether the Complaint falls within
the scope of the SLAPP statute, and whether Rall established a
probability of prevailing, is de novo. Cross v. Facebook, 14
Cal.App.5th 190, 199 (2017).
3Rall fails to mention that the trial court delayed the

second SLAPP hearing at his request. Compare OB 26 with
R.A.0017. He waived any challenge to the court’s decision not to
grant additional continuances. OB 26 n.6.
4 The trial court subsequently issued a Revised Order
clarifying that its ruling applied to both the Times Defendants’
Motion and a SLAPP Motion brought by defendant Tribune
Media Company (“Tribune Media”). R.A.0039-0060. Rall has
dismissed his appeal as to Tribune Media.
30
IV. THE SLAPP STATUTE
APPLIES TO RALL’S CLAIMS
The California Legislature enacted C.C.P. § 425.16 to
quickly dispose of claims targeting the exercise of free speech
rights and acts in furtherance of those rights. Braun v. Chronicle
Publ’g Co., 52 Cal.App.4th 1036, 1042 (1997). The SLAPP statute
was amended in 1997 to require that it “shall be construed
broadly.” C.C.P. § 425.16(a).
The California Supreme Court consistently has upheld the
statute’s broad construction, rejecting attempts to impose limits
on Section 425.16 that are unsupported by its language or
history. E.g., Navellier v. Sletten, 29 Cal.4th 82, 91 (2002)
(excluding contract and fraud claims from statute’s ambit “would
contravene the Legislature’s express command that section
425.16 ‘shall be construed broadly’”); Equilon Enterprises v.
Consumer Cause, 29 Cal.4th 53, 61 (2002) (rejecting “intent to
chill” requirement); Barry v. State Bar of California, 2 Cal.5th
318, 321 (2017) (refusing to limit fee recovery).
The trial court properly found that all of Rall’s claims fall
within the broad parameters of the SLAPP statute. 18/A.A./5914-
5915, 5927-5931; R.A.0052-0058. Rall does not challenge the
31
court’s decision that his Content Claims arise from pure speech,
within the protections of the SLAPP statute. OB 40-49.5 This
ruling was correct. The Times exercised its First Amendment
rights6 in connection with matters of public interest, because the
Articles discussed issues under consideration or review in an
“official proceeding authorized by law” (C.C.P. § 425.16(e)(2))7
and because the subject matter involved issues of public interest
(id. § 425.16(e)(4)); Section IV.A-B, infra.
5 The headings in Rall’s OB expressly limit his arguments

about prong one of the statute to his so-called “employment
claims.” OB 40-49. “The failure to head an argument as required
by [the Rules of Court] constitutes a waiver.” Opdyk v. California
Horse Racing Bd., 34 Cal.App.4th 1826, 1830 n.4 (1995); Cal. R.
Ct. 8.204(a)(1)(B). Rall cannot challenge rulings for the first time
on reply. People v. Baniqued, 85 Cal.App.4th 13, 29 (2000)
(argument typically deemed waived if not raised until reply);
Neighbours v. Buzz Oates Enterprises, 217 Cal.App.3d 325, 335
n.8 (1990) (rejecting argument that was “not raised until the
reply brief”); People v. Bonilla, 41 Cal.4th 313, 349-50 (2007)
(party “forfeited” issue by not raising before reply).
6 Claims against media defendants arising from the content
of publications fall squarely within the scope of the SLAPP
statute. E.g., Carver v. Bonds, 135 Cal.App.4th 328, 342-43
(2005) (newspaper article).
7 E.g., Braun, 52 Cal.App.4th at 1048-1049 (newspaper
report about official proceeding falls under Subsection (e)(2));
Comstock v. Aber, 212 Cal.App.4th 931, 941-42 (2012) (police
records are official proceedings).
32
The trial court also properly found that Rall’s Publication
Claims were covered by the statute, because all of them arose
from The Times’ decision to stop publishing Rall’s work. Id.
A. Rall’s Claims Arise From The Times’ Conduct In

Furtherance Of Protected Speech.
1. The Times’ Decision Not To Publish Rall’s Work Was

An Exercise Of Its First Amendment Rights.
Section 425.16(e)(4) applies the SLAPP statute to “conduct
[1] in furtherance of the exercise of … the constitutional right of
free speech [2] in connection with a public issue or an issue of
public interest.” Rall’s Publication Claims all arise directly from
The Times’ decision about what content to publish, which is
expressive conduct protected by the First Amendment.
Rall cannot evade the SLAPP statute with “artifices of
pleading.” Ramona Unified School Dist. v. Tsiknas, 135
Cal.App.4th 510, 519 (2005). This Court must “disregard [the
plaintiff’s] labeling” and “examine the principal thrust or
gravamen of a plaintiff’s cause of action to determine whether the
anti-SLAPP statute applies.” Id. at 519-20, 522. The
“definitional focus is not the form of the plaintiff’s cause of action,
but rather, the defendant’s activity that gives rise to [its]
asserted liability.” Navellier, 29 Cal.4th at 91.
33
The California Supreme Court has rejected attempts to
“categorically” exclude certain kinds of claims from the SLAPP
statute’s ambit. Id. Where plaintiff’s claim arises from conduct
in furtherance of protected activity – and “but for” that protected
conduct, the claim “would have no basis” – the SLAPP statute
applies. Id. at 90. Accord Sheley v. Harrop, 9 Cal.App.5th 1147,
1167 (2017).
Here, despite Rall’s use of legal buzzwords, the allegedly
injury-producing act was The Times’ decision to stop publishing
his work. E.g., 1/A.A./40-43, 57-60. The First Amendment
protects “[t]he choice of material to go into a newspaper” and the
“exercise of editorial control and judgment” about the “content of
the paper.” Miami Herald v. Tornillo, 418 U.S. 241, 258 (1974).
Thus, “[t]o the extent the publisher’s choice of writers affects the
expressive content of its newspaper, the First Amendment
protects that choice.” McDermott, 593 F.3d at 962.
The SLAPP statute therefore applies to claims arising from
editorial conduct that affects news content, regardless of their
label. In San Diegans for Open Gov’t v. SDSU Research
Foundation, 13 Cal.App.5th 76 (2017) (“SDOG”) (review granted,
Jan. 24, 2018), a plaintiff who was unhappy about a nonprofit
34
news organization’s coverage sued it and a public university that
provided it with office space, alleging their collaboration violated
governmental conflict-of-interest laws. The court held that the
SLAPP statute applied because, regardless of how the claims
were denominated, they were “based on Defendants’ decisions in
entering into contracts to partner news gathering, news
reporting, and news production on television and other media ….”
Id. at 104. The court recognized that news reports do “not arise
out of thin air” (id. at 84), and conduct “in furtherance of speech”
also is covered by the statute.
The SLAPP law also applies to decisions not to publish. In
Greater L.A. Agency on Deafness v. CNN, 742 F.3d 414, 425 (9th
Cir. 2014) (“GLAD”), the statute was applied to a nonprofit
group’s discrimination claims arising from CNN’s alleged failure
to provide closed-captioning on its programs. Accord Kronemyer
v. IMDB, 150 Cal.App.4th 941, 947 (2007) (statute applied to
claims arising from refusal to list film credits on website). As the
court explained in Cross, 14 Cal.App.5th at 202, “[w]here ... an
action directly targets the way a content provider chooses to
deliver, present, or publish news content on matters of public
35
interest, that action is based on conduct in furtherance of free
speech rights” within the SLAPP law.8
Following these principles, courts regularly have applied
the SLAPP statute to discrimination, wrongful termination, and
similar claims when they arise from protected conduct. E.g.
Hunter, 221 Cal.App.4th at 1513-1514 (discrimination claims for
refusing to hire plaintiff as weather newscaster); Ingels v.
Westwood One, 129 Cal.App.4th 1050, 1064 (2005)
(discrimination, unfair competition claims arising from radio
producers’ “refusal … to allow [plaintiff] to participate” in radio
program); Taylor v. Viacom, 2018 U.S. Dist. LEXIS 95391, *12
(C.D. Cal. 2018) (anti-SLAPP statute applied to negligence action
based on decision to hire plaintiff as cast member for reality
television program); Gallanis-Politis v. Medina, 152 Cal.App.4th
600, 604, 610-611 (2007) (discrimination, retaliation claims based
on alleged pretextual investigation and false report); Vergos v.
8 Accord Lieberman v. KCOP, 110 Cal.App.4th 156, 166

(2003) (applying statute to newsgathering claims); Tamkin v.
CBS, 193 Cal.App.4th 133, 142-143 (2011) (preparing and
distributing script for casting calls).
36
McNeal, 146 Cal.App.4th 1387, 1397 (2007) (sexual harassment
claim).9
The Supreme Court’s decision in Park v. Board of Trustees,
2 Cal.5th 1057, 1063 (2017), did not change this analysis. In
Park, defendant University responded to a lawsuit for
discrimination and harassment with a SLAPP motion, arguing
that the “suit arose from its decision to deny [plaintiff] tenure
and the numerous communications that led up to and followed
that decision.” 2 Cal.5th at 1061 (emphasis added). In the
portion Rall cites, the Court rejected the University’s assertion
that the communications brought the suit under the SLAPP
statute, because the communications did not supply an essential
element of the claims at issue. Id. at 1068. The Court did not
consider the University’s argument that the decision to deny
tenure was protected conduct (based on the rationale that
professors speak for their universities), finding that the
University had not preserved that argument. 2 Cal.5th at 1072.
9 See also Taheri Law Group v. Evans, 160 Cal.App.4th

482, 489 (2008) (claims against attorney accused of stealing
clients); Vivian v. Labrucherie, 214 Cal.App.4th 267, 274 (2013)
(breach of contract); Bel Air Internet v. Morales, 20 Cal.App.5th
924, 945-46 (2018) (interference with contractual relations).
37
The Court distinguished between “‘a cause of action based
squarely on a privileged communication, such as an action for
defamation, and one based upon an underlying course of conduct
evidenced by the communication.’” Id. at 1064 (citation omitted).
Subsequent cases have affirmed that where conduct in
furtherance of speech is itself the wrong complained about,
Section 425.16 applies to “employment” claims. E.g., Okorie v.
LAUSD, 14 Cal.App.5th 574, 595 (2017) (SLAPP statute applied
because defendant’s communicative conduct was “not incidental
to – but integral to – Plaintiffs’ complaint”).
Here, in contrast to Park, Rall’s Publication Claims arise
directly and exclusively from protected conduct – The Times’
editorial decision to stop publishing Rall’s work, and its
publication of Articles informing readers of the questions
surrounding Rall’s blog post that led to the decision. 1/A.A./134-
137; 18/A.A./5793-5797.10
10 Rall inaccurately accuses The Times of relying on

Tuszynska v. Cunningham, 199 Cal.App.4th 257 (2011), without
acknowledging its partial disapproval in Park. OB 42. The
Times did not cite Tuszynska in its amended SLAPP Motion.
18/A.A./5787, 5892.
38
Rall’s reliance on Wilson v. CNN, 6 Cal.App.5th 822 (2016)
(review granted, March 1, 2017), is equally misplaced. The
majority decision is inconsistent with California law, because it
focused on the plaintiff’s legal conclusion that the defendant’s
conduct was “[d]iscrimination and retaliation,” instead of the
defendant’s conduct giving rise to the claims. Id. at 835; see
Section 2.
But even if Wilson ultimately is upheld, it has no
application here. There, the plaintiff claimed he suffered a
decade of “discrimination, harassment and retaliation before” he
authored the news report that caused his termination. 6
Cal.App.5th at 837 (emphasis added). The majority held the
prior conduct was unprotected by the SLAPP statute. Id. In
contrast, Rall’s claims rest exclusively on The Times’ decision to
stop publishing his work, and its Articles informing readers why.
1/A.A./40-52. Thus, Wilson does not support Rall’s claims even if
it survives review.
Finally, Rall concocts an artificially-high standard for
applying the SLAPP statute, asserting that Hunter remains good
law only if CBS demonstrates “that its choice of its on-air
weather broadcaster, … directly and severely impacts its very
39
business.” OB 43. But nothing in the Supreme Court’s reasoning
in Park suggests that a court must consider the “impact” on the
defendant’s “business” in evaluating whether the SLAPP statute
applies. Instead, it was sufficient in Hunter that “the station
itself engaged in speech on matters of public interest through the
broadcast of news and weather reports ….” Park, 2 Cal.5th at
1071 (citations omitted).
The decision to stop publishing Rall’s work did “directly
impact the content” of The Times. But more importantly, Rall’s
Publication Claims arise directly from The Times’ editorial
decision about the content of the newspaper and its Articles
informing readers about the decision. That conduct was “in
furtherance of” speech on matters of public interest within the
SLAPP statute’s protection.
2. Rall Conflates The First And Second Prongs Of The

SLAPP Analysis.
Rall’s attempt to characterize The Times’ editorial decision
as “wrongful termination” improperly conflates the issues
addressed by the first and second prongs of the statute.
In Fox Searchlight Pictures v. Paladino, 89 Cal.App.4th 294
(2001), plaintiff argued that contract-related claims were outside
40
the SLAPP statute’s scope because the alleged mishandling of
confidential information was not “protected” activity. Id. at 307-
08. This Court rejected that rationalization, explaining that
“[t]he Legislature did not intend that in order to invoke the
special motion to strike the defendant must first establish her
actions are constitutionally protected ….” Id. at 305.
The Supreme Court cited Paladino with approval, holding
that “any ‘claimed illegitimacy of the defendant’s acts” is
addressed in the second prong “merits” analysis. Navellier, 29
Cal.4th at 94-95 (citing Paladino, 89 Cal.App.4th at 305).
Following Navallier, courts routinely reject the argument that an
allegation of wrongful conduct removes the claim from the
SLAPP statute’s protection. E.g., Governor Gray Davis
Committee v. American Taxpayers Alliance, 102 Cal.App.4th 449,
458 (2002) (“a court must generally presume the validity of the
claimed constitutional right in the first step of the anti-SLAPP
analysis”); Wong v. Jing, 189 Cal.App.4th 1354, 1369 (2010)
(distinguishing between first and second prong burdens); DuPont
Merck Pharm. v. Superior Court, 78 Cal.App.4th 563, 567 (2000)
(same).
41
Courts regularly apply the SLAPP statute to claims that
include, as an element, a wrongful motive. For example, in Cross
v. Cooper, 197 Cal.App.4th 357 (2011), the court applied Section
425.16 to contract claims arising from the plaintiff’s allegation
that the defendants made negative statements about her
property to a prospective buyer “in retaliation” for a rent dispute.
Id. at 365-66. Accord Hansen v. CDCR, 171 Cal.App.4th 1537,
1545 (2008) (same; striking whistleblower claim); Hecimovich v.
Encinal School Parent Teacher Org., 203 Cal.App.4th 450, 464
(2012) (reversing SLAPP motion denial in defamation lawsuit,
finding trial court improperly framed issue based on plaintiff’s
legal conclusion (“defamation”), instead of defendants’ conduct
(making statements about the plaintiff)).
Whether the elements of the claim have been satisfied is
considered in the second prong analysis. Otherwise, a litigant
could evade Section 425.16 by obscuring explicit allegations of
protected activity with conclusory assertions of wrongful
motivation. Because Rall’s claims arise directly from The Times’
publications and editorial decisions (1/A.A./40-43, 57-60), the trial
court correctly held that the SLAPP statute applied.
18/A.A./5927.
42
B. Rall’s Claims Arise In Connection With An Issue Of Public
Interest.
1. The Public Interest Requirement Must Be Broadly

Construed.
The public interest requirement, “like all of section 425.16,
is to be construed broadly.” Seelig v. Infinity Broadcasting, 97
Cal.App.4th 798, 808 (2002) (statute applied to comments about
former reality show contestant). Accord Hecimovich, 203
Cal.App.4th at 464 (2012) (same); Damon v. Ocean Hills
Journalism Club, 85 Cal.App.4th 468, 481 (2000) (public interest
“has been broadly construed to include … private conduct that
impacts a broad segment of society”). As one court concluded:
Taken together, these cases and the legislative
history that discusses them suggest that ‘an issue of
public interest’ within the meaning of section 425.16,
subdivision (e)(3) is any issue in which the public is
interested. In other words, the issue need not be
‘significant’ to be protected by the anti-SLAPP
statute – it is enough that it is one in which the
public takes an interest.
Nygård v. Uusi-Kerttula, 159 Cal.App.4th 1027, 1042 (2008).
43
A wide variety of subjects have been deemed to be of public
interest. E.g. Sipple v. Foundation for Nat. Progress, 71
Cal.App.4th 226, 238 (1999) (domestic violence); Rivera v. First
DataBank, 187 Cal.App.4th 709 (2010) (depression treatments);
Gilbert v. Sykes, 147 Cal.App.4th 13 (2007) (plastic surgery);
Summit Bank v. Rogers, 206 Cal.App.4th 669 (2012) (banking
system). Rall’s claims easily fall within these broad parameters.
2. Rall’s Narrow Test Is Contrary To California Law.
Rall ignores his Complaint and the record in asserting that
his claims are unconnected to any issue of public interest (O.B.
44-45). He proposes a narrow public interest inquiry, focused on
whether a plaintiff is a public figure (O.B. 44 & n.15, 47-48),
which contradicts controlling law.
California courts routinely have rejected a narrow focus on
a particular plaintiff. E.g., Hall v. Time Warner, 153 Cal.App.4th
1337, 1347 (2007) (claim by private figure beneficiary of Marlon
Brando’s estate fell within SLAPP statute);Tamkin, 193
Cal.App.4th at 144 (“no requirement” in SLAPP statute that
“plaintiff’s persona be a matter of public interest”); Hunter, 221
Cal.App.4th at 1527 (“proper inquiry” was not “CBS’s selection of
a weather anchor” itself but whether it “was ‘in connection with’ a
44
matter of public interest”); Terry v. Davis Community Church,
131 Cal.App.4th 1534, 1547-1549 (2005) (same).
This Court’s decision in Brodeur v. Atlas Entertainment,
248 Cal.App.4th 665 (2016), is instructive. Author Paul Brodeur
alleged he was defamed by the film American Hustle when a
character referenced Brodeur’s work in discussing safety
concerns about microwaves, which were novel inventions during
the period depicted in the film. Id. at 669-70. This Court rejected
Brodeur’s argument that the statement about him was not of
public interest; because the reference to Brodeur’s work reflected
wider social issues addressed by the film, the SLAPP statute’s
public interest requirement was satisfied. Id. at 677. Accord
Sarver v. Chartier, 813 F.3d 891, 902 (9th Cir. 2016) (claims
based on use of plaintiff’s “persona” in film was ““inherently
entwined” with broad topic of public interest); Carver, 135
Cal.App.4th at 343-44 (SLAPP statute applied to claims arising
from newspaper article about plaintiff doctor’s disciplinary issues
given broader health and safety issues); Four Navy Seals v. AP,
413 F.Supp.2d 1136, 1140-41 (S.D. Cal. 2005) (privacy claims
were within statute because plaintiffs’ photos were “relevant” to
“broader topic of treatment of Iraqi captives”).
45
This body of law is consistent with the framework courts
apply in determining what constitutes a matter of “public
interest” in other speech-related cases, like private facts claims.
For example, in Shulman v. Group W Productions, 18 Cal.4th
200, 223-24 (1998), the California Supreme Court found that
speech about a private person who was “involuntarily” caught up
in a matter of public interest is constitutionally protected as
“newsworthy” if there is a “logical nexus” between the plaintiff
and the broad subject matter of the program. Accord Pasadena
Star-News v. Superior Court, 203 Cal.App.3d 131, 133-134 (1988)
(articles about abandoned newborn that identified mother were
newsworthy).
The plain language of the SLAPP statute mandates that if
the conduct at issue furthers speech “connected with” a topic of
public interest, it is covered by the statute. C.C.P. § 425.16(e)(4).
Rall’s claims easily meet this standard.
3. The Times’ Conduct Was Connected To Matters Of

Public Interest.
Rall’s cartoon and blog, and The Times’ Articles discussing
them, related to alleged police misconduct and a resulting LAPD
investigation. 1/A.A./63-75. These topics are of significant public
46
interest. See PPOA v. Superior Court, 240 Cal.App.4th 268, 283
(2015) (recognizing strong public interest in information about
alleged police misconduct); POST v. Superior Court, 42 Cal.4th
278, 297-98 (2007) (noting public interest in “conduct of law
enforcement officers … perhaps especially at, an ‘on the street’
level”). The public also has a demonstrated interest in ensuring
that their sources of news and commentary are accurate and
trustworthy. 1 A.A./366-384. Transparency with readers when
published works are called into question furthers that interest.
The trial court correctly found that “Plaintiff’s article added
to the discussion of the jaywalking crackdown, and on whether
pursuing jaywalkers was a productive use of LAPD officers’ time.
The article was on an issue of public interest, …. That the Times
found the article inaccurate appears also to be a matter of public
interest.” 18/A.A./5930.
Similarly, The Times’ decision to stop publishing Rall’s
work was “in connection with” these issues of public interest
(C.C.P. 425.16(e)(4)). The decision indisputably resulted from
questions concerning Rall’s cartoon and blog post, which involved
matters of public interest. 3/A.A./683-684, 965-977; 4/A.A./983-
1058; 5/A.A.1061-1168; 6/A.A./1172-1402. Not publishing is
47
covered by the statute. See GLAD, 742 F.3d at 425; Kronemyer,
150 Cal.App.4th at 949.
Even if the Court narrowly focused on Rall, The Times
easily met its burden of establishing a public interest. In
Nygård, the SLAPP statute applied because of “extensive
interest” in Nygård – “‘a prominent businessman and celebrity of
Finnish extraction’ – among the Finnish public ….” 159
Cal.App.4th at 1042. Accord Seelig, 97 Cal.App.4th at 808
(statute applied to comments about reality show contestant);
McGarry v. University of San Diego, 154 Cal.App.4th 97, 109-110
(2007) (statements about football coach’s termination were of
public interest).
By his own description, Rall and his work are matters of
significant public interest. Section II.A. His Complaint claims he
is published by “scores” of publications; and “a past President of
the Association of American Editorial Cartoonists,” among other
things. 1/A.A./39-40. Rall has boasted that his cartoons are
“especially influential.” 3/A.A/678-679; see generally 1/A.A./330-
338; 4/A.A./982-6/A.A./1402. He also submitted declarations by
ten cartoonists from across the nation discussing their knowledge
of Rall’s work (3/A.A./724-729, 734-770).
48
Rall’s attempt to now portray himself as an inconsequential
cartoonist (OB 47-48) rings hollow. Given Rall’s admissions, The
Times’ Articles and decision to stop publishing Rall’s work were
plainly “in connection with” a matter of public interest. E.g.,
Brodeur, 248 Cal.App.4th at 675 (SLAPP statute applied where
plaintiff claimed he was a “well-known author”).11
Rall also claimed The Times’ decision to stop publishing his
work generated “extensive” media coverage. 1/A.A./39-40, 46.
Rall’s exhibits include dozens of publications concerning his
dispute with The Times about the accuracy of his blog post
(3/A.A./701-714; 6/A.A./1519-7/A.A./1941), illustrating public
interest in the controversy.
V. RALL DID NOT DEMONSTRATE A PROBABILITY OF

PREVAILING ON HIS CLAIMS
Because Rall’s claims fall within the scope of Section
425.16, the burden shifted to him to present admissible evidence
establishing a probability that he will prevail on each claim.
C.C.P. § 425.16(b)(1); Macias v. Hartwell, 55 Cal.App.4th 669,
11Rall’s hyperbolic assertion that this would mean

everything he does involves a matter of public interest (OB 47) is
a red herring. This lawsuit involves Rall’s widely-disseminated
publications about matters of substantial public interest.
49
675 (1997). The trial court correctly found that Rall failed to
meet his burden. 18/A.A./5910; 18/A.A./5918; R.A.0058-0060.
A. Rall’s Content Claims Were Properly Stricken.
Rall’s First, Second, Third, and Eighth Causes of Action,
labeled as claims for defamation, “defamation per se,”
“blacklisting,” and emotional distress, all arise from purported
injurious falsehoods in the Articles. 1/A.A.54-60. Rall cannot
avoid constitutional requirements by renaming his defamation
claims, as the Supreme Court established decades ago. Blatty v.
New York Times, 42 Cal.3d 1033, 1043 (1986) (requirements are
the same for any claim based on “injurious falsehood”). For all
these claims, Rall failed to establish publication of a “false and
defamatory statement” that was “unprivileged.” Restatement
(2d) of Torts § 558 (1977).
As a threshold matter, these claims have been significantly
narrowed on appeal. Rall’s Complaint identified 32 allegedly
defamatory statements. 1/A.A./43-51. But his OB only
references six statements. OB 77-78. Consequently, Rall
forfeited any challenge to the trial court’s ruling as to the vast
majority of the statements originally pleaded. Baral v. Schnitt, 1
Cal.5th 376, 392 (2016) (“each separate defamatory statement
50
gives rise to a new cause of action”; court can strike individual
statements under SLAPP statute); Kahn v. Bower, 232
Cal.App.3d 1599, 1612 n.5 (1991) (allegedly defamatory
statements must be specifically identified). As discussed below,
Rall failed to carry his burden of showing that Respondents
published any actionable statements.
1. The Times’ Articles Are Absolutely Privileged As Fair

Reports Of Official Proceedings And Records.
The First and Fourteenth Amendments to the U.S.
Constitution and Article I, § 2 of the California Constitution
protect reporting about official records and proceedings. Gates v.
Discovery Communications, 34 Cal.4th 679, 692 (2004) (First
Amendment privilege applied to news report about obscure public
court record). In California, the privilege is codified in Civil Code
§ 47(d), which provides absolute protection for “fair and true”
reports of official proceedings and records. Civ. Code § 47(d)(1).
California’s fair report privilege “is applied broadly.”
Sipple, 71 Cal.App.4th at 240. Accord Healthsmart Pacific v.
Kabateck, 7 Cal.App.5th 416, 431 (2016) (“[c]ourts have
construed the privilege broadly”; granting SLAPP motion); J-M
51
Manufacturing v. Phillips & Cohen, 247 Cal.App.4th 87, 101
(2016) (same).
The trial court applied these well-established authorities in
finding that the Articles are privileged.
a. The Fair Report Privilege Applies To The

Times’ Reports About LAPD Proceedings.
The Times’ Articles discussed two official law enforcement
proceedings: Rall’s 2001 detention and ticketing by Officer Durr,
and the subsequent LAPD internal affairs probe of Rall’s
misconduct complaint against the officer. 1/A.A./66-75, 231-268;
3/A.A./718; 7/A.A./1999-2018.
The Articles expressly cited and discussed police records
documenting these proceedings, including Rall’s jaywalking
ticket; an audio recording made by Officer Durr; the LAPD’s
transcript of that recording; Rall’s misconduct complaint;
statements by police about the investigations; and the police
chief’s letter to Rall about the investigation. 1/A.A./66-75;
7/A.A./2011. The August 19 article linked to the records, allowing
readers to review them first-hand. 1/A.A./68-75. The trial court
properly applied Section 47(d). 18/A.A./5916-5917.
52
Rall’s claim that Section 47(d) does not apply to LAPD
investigations is baseless. OB 63. For more than fifty years,
California courts have held that publications about “statements
made in the context of a police investigation” are “privileged and
cannot support a defamation claim.” Balzaga v. Fox News, 173
Cal.App.4th 1325, 1337 (2009); see also Hayward v. Watsonville
Register-Pajaronian, 265 Cal.App.2d 255, 260-61 (1968) (fair
report privilege applied to article reporting on criminal
investigation); Porter v. Guam Publ’ns, 643 F.2d 615, 617-18 (9th
Cir. 1981) (California privilege applies to article reporting on
police records).
This protection similarly applies to news reports about
internal police misconduct probes. E.g., Green v. Cortez, 151
Cal.App.3d 1068, 1070-73 (1984); Howard v. Oakland Tribune,
199 Cal.App.3d 1124, 1128 (1988) (“a police internal affairs
investigation is a ‘public official proceeding’ within the meaning
of this statute”); Crane v. Arizona Republic, 972 F.2d 1511, 1518
(9th Cir. 1992) (“[i]nternal police investigations also come within”
privilege).
Rall simply ignores these controlling authorities. Instead,
he focuses on inapposite language in Section 47(d)(1)(E) about
53
charges to public officials upon which warrants have been issued.
E.g., OB 67-69. Contrary to Rall’s unsupported claim (OB 67),
that subsection does not restrict the rest of Section 47(d); it
merely is one part of a disjunctive passage listing several
different types of proceedings that fall within the privilege. Civ.
Code § 47(d)(1). Clarendon America Ins. v. N. A. Capacity Ins.,
186 Cal.App.4th 556, 569 (2010) (terms used in the disjunctive
are “distinguished from each other”).
Media reports about criminal investigations and police
misconduct probes are protected under different provisions of the
statute: Section 47(d)(1)(A) extends the privilege to reports of
“judicial” proceedings, and Section 47(d)(1)(C) includes reports
concerning any “other public official proceeding.” Hayward, 265
Cal.App.2d at 259-60 (articles based on police crime reports and
“rap sheets” were reporting on “judicial” proceedings; “[i]n
determining the scope of the term ‘judicial proceeding’ … the
courts of this state seem to take a comparatively broad view”);
Howard, 199 Cal.App.3d at 1128 (“‘public official proceeding’”
includes “police investigation into allegations of use of excessive
force by police”); Cortez, 151 Cal.App.3d at 1073 (“there can be no
doubt that such an investigation [into alleged police misconduct]
54
is … a ‘public official proceeding’ under” the statute); Braun, 52
Cal.App.4th at 1050-51 (news reporting about investigations
conducted by public agencies deemed privileged under Section
47(d)(1)(C) as “reports of ‘public official proceedings’”).12
This same broad definition of “official proceeding” applies to
the Section 47(d) fair report privilege and the Section 47(b)
litigation privilege. E.g., Cortez, 151 Cal.App.3d at 1073 (“[a]
police investigation … has been held to be an ‘official proceeding
authorized by law’ for purposes of section 47, subdivision 2, and
there can be no doubt that such an investigation is similarly a
‘public official proceeding’ under subdivision 4”) (citation
omitted). Rall’s attempt to interpret these provisions
12 Rall’s unsupported assertion that Section 47(d) applies

only to proceedings in a “court of law” (OB 64) is inaccurate.
Crane, 972 F.2d at 1518 (broadly interpreting “public official
proceeding” in Section 47(d) “in a manner that most generously
accommodates the public’s right to know about the inner-
workings of its government”). Rall relies on a misleading
selective quotation from Merriam-Webster; the “legal definition”
of the word “proceeding” is completely consistent with the broad
scope of Section 47(d): See https://www.merriam-
webster.com/dictionary/proceeding (defining “proceeding” as “a
particular step or series of steps in the enforcement, adjudication,
or administration of rights, remedies, laws, or regulations,”
including “a criminal prosecution or investigation”).
55
inconsistently, in an attempt to create an artificially narrow
interpretation of Section 47(d), is meritless. OB 67.13
Rall’s reliance on Burrill v. Nair, 217 Cal.App.4th 357
(2013) (OB 67-69), is misplaced. That case did not involve a
media report; the defendant repeated allegations he made
himself in a “citizen’s criminal complaint.” Id. at 398. Although
the court found that the “privilege has been held to apply to fair
reports of police investigations,” it does not extend to “a report of
the charges made in a citizen’s criminal complaint, made by the
citizen who filed that complaint, when there is no evidence any
official action has been taken with respect to the complaint.” Id.
Unlike Burrill, The Times was not reporting on its own
complaint; furthermore, Rall’s own evidence shows that official
action was taken. This includes a Notice to Appear issued to Rall
in connection with the detention and ticketing (7/A.A./2002); an
LAPD report detailing the internal affairs investigation
13 Rall complains that a robust fair report privilege might

allow some people to “use the press to further their private
agendas.” OB 67. The Legislature rejected this argument when
it enacted Section 47(d), determining that the concern was “offset
by the policy reasons for the privilege,” including maximizing
public information about governmental proceedings and records.
Healthsmart, 7 Cal.App.5th at 437.
56
conducted in response to Rall’s misconduct complaint
(7/A.A./2009); and a letter explaining that the LAPD “completed
its investigation” into his claim (7/A.A./2011). See also
1/A.A./231-232, 253-268. Thus, Burrill is consistent with
application of the fair report privilege here.14
Rall’s criticisms of the LAPD’s probe (OB 65-66)15 are
irrelevant to application of the privilege, which does not depend
on the accuracy of the underlying proceeding or record. See
McClatchy Newspapers v. Superior Court, 189 Cal.App.3d 961,
974 (1987) (“[e]ven when the print media publish an accurate
report of a statement they know to be false, the protective cloak
of [the privilege] remains intact, not penetrated by a finding of
14 Subsequent decisions have criticized Burrill for narrowly

interpreting Section 47(d), based on a Restatement provision that
“is not the rule in California.” Healthsmart, 7 Cal.App.5th at
433-34. California deliberately enacted a statutory fair report
privilege that is broader than the common law privilege embodied
in the Restatement. Id. Accord Argentieri v. Zuckerberg, 8
Cal.App.5th 768, 793 (2017).
15Rall relies on excerpts from the LAPD Manual that were
not part of the trial court record, and should be disregarded. See
Respondents’ Opposition to Rall’s Request for Judicial Notice
(“RJN”) (Feb. 21, 2018).
57
malice”; newspaper could not be held liable for reporting on
allegedly inaccurate deposition testimony).16
Whether a public agency followed its own procedures or
acted appropriately is irrelevant to Section 47(d)’s protection for
media reports about the underlying public records. See Crane,
972 F.2d at 1519 (privilege applied where plaintiffs were “really
arguing with [the investigators’] conclusions, not with the
accuracy of The Arizona Republic’s reporting of those
conclusions”).
In Cortez, the plaintiff argued a newspaper was liable for
reporting a politician’s allegedly false statements made during a
public meeting. 151 Cal.App.3d at 1073-74. The court rejected
the claim, explaining that it confused “the liability of a
participant in a public proceeding” with “the liability of news
media defendants reporting the occasion.” Id. at 1074. For the
media defendants, “there could be no such liability, even if the
speaker abused his or her … privilege and thus was personally
liable.” Id. Accord Howard, 199 Cal.App.3d at 1128 (same).
16 Respondents’ counsel explained this fundamental

characteristic of the fair report privilege during one of the SLAPP
hearings. 7/14/17 RT at 48. Rall took an excerpt of the argument
out of context for his hyperbolic cartoon. OB 17.
58
Rall’s restrictive view would defeat the purpose of the
privilege – satisfying “the public’s need for information to fulfill
its supervisory role over government.” Crane, 972 F.2d at 1518.
He also cannot limit the application of the privilege with
insinuations about some undefined relationship between The
Times and the LAPD. OB 50. As the trial court properly held,
such accusations do “not obviate the privilege” as a matter of law.
18/A.A./5917. E.g. McClatchy, 189 Cal.App.3d at 971
(“allegations of conspiracy” between newspaper and source of
information “do not pierce the protective shield embodied in the
statute”).
b. Rall’s Attempts To Evade The Fair Report

Privilege Are Baseless.
Rall’s OB makes a variety of unsupported and meritless
assertions in an attempt to evade the privilege.
First, Rall’s assertion that the LAPD records were
“confidential” is erroneous and irrelevant. OB 70-71. The fair
report privilege includes news reports about confidential
governmental records and proceedings. E.g., Braun, 52
Cal.App.4th at 1051 (“courts have extended Civil Code section 47,
subdivision (d) protection to confidential proceedings.”).
59
Consequently, in applying the privilege to news reporting about a
state investigative audit it was “immaterial that the audit itself
was confidential.” Id. at 1050.
Likewise, in Crane, the Ninth Circuit rejected the
argument that articles were unprivileged because they reported
on a legislative committee investigation that “was not open to the
public.” 972 F.2d at 1517. The court explained: as “cases have
interpreted the phrase, ‘public’ would appear to mean
‘governmental’ as opposed to private actions,” and “‘[o]fficial’
apparently signifies formal, as opposed to informal, governmental
proceedings.” Id. at 1518. Accord Carver, 135 Cal.App.4th at 351
(“the fact that the complaints were … confidential and not open
to the public” did not preclude Section 47(d) privilege) (citation
omitted); Reeves v. ABC, 719 F.2d 602, 605-06 (2d Cir. 1983)
(applying California law in applying Section 47(d) to reporting
about “secret grand jury proceeding”).
Rall’s new argument relying on Section 47(d)(2)(C)
misapprehends the statute. OB 70-71. The privilege protects
both “a fair and true report in, or a communication to, a public
journal.” Civ. Code § 47(d)(1) (emphasis added). Publishers like
Respondents are protected under the first clause, for reports “in”
60
a public journal. Healthsmart, 7 Cal.App.5th at 431-32
(legislative history of Section 47(d) shows that first clause
protects “news media defendants” and second clause applies to
“intermediaries”).
By its plain terms, Subdivision (d)(2) only limits the
protections given for “communication[s] to a public journal.” Civ.
Code § 47(d)(2); Argentieri, 8 Cal.App.5th at 793 (provision
applies to “a communication to a public journal”). This
distinction ensures that the privilege does not absolve public
officials of confidentiality requirements if they disclose items in
violation of a confidentiality obligation, it nonetheless protects
media reports about such records. Braun, 52 Cal.App.4th at
1050.
In any event, the public records discussed in The Times’
Articles are not confidential. Here, too, Rall misunderstands the
relevant laws. OB 70-71. The CPRA’s exemption for
investigative records does not prevent agencies like the LAPD
from disclosing such files to the public. Berkeley Police Ass’n v.
City of Berkeley, 76 Cal.App.3d 931, 942 (1977) (investigatory
records exemption is permissive, not mandatory). Similarly,
police officers who are the subjects of internal affairs
61
investigations “may, of course, choose to waive the confidentiality
protection of section 832.7.” Berkeley Police Ass’ v. City of
Berkeley, 167 Cal.App.4th 385, 406 n.22 (2008).
Here, the LAPD and Officer Durr waived any potential
confidentiality interest by releasing the records to the public,
including Rall, in response to his CPRA request. 1/A.A/231,
3/A.A./718. Rall’s reliance on boilerplate language in the LAPD’s
cover letter ignores the fact that the department provided him
with the records, with that same correspondence. OB 70;
7/A.A./1999-2000. The Ethics Commission case that Rall
references is inapposite; there, an individual LAPD officer was
disciplined for unilaterally providing an investigatory record to
the media without the department’s permission. OB 71; RJN, Ex.
3 at 2, 11-13. Here, in contrast, the LAPD properly disclosed
these records.17 Regardless, Rall cannot evade The Times’ fair
report privilege by claiming the LAPD should not have released
the records.
17Rall’s convoluted argument about the status of the police

records also relies on new exhibits outside the trial court record
that should be disregarded. See RJN Opposition.
62
Second, Rall asserts that the privilege does not apply
because The Times reported on its “own investigation.” OB 19,
69-70. This misconstrues the law and the record. Section 47(d)
requires only that the report have “some connection or logical
relation to the proceeding.” McClatchy, 189 Cal.App.3d at 973-
74. This is a “lenient” standard that is “more lax than the
concept of relevancy itself.” Id. As the trial court correctly
determined, The Times’ Articles easily meet this broad standard.
18/A.A./5916.
Both Articles begin by expressly referencing the LAPD
investigations, and identify the particular records being
examined. 1/A.A./241, 244-251.18 Rall admits that The Times
obtained these records from LAPD Chief Beck and reviewed
them; reviewed Rall’s past writing on the subject; interviewed
police officials involved in the investigation; and interviewed Rall
about his account. OB 69. What Rall attempts to recharacterize
as a “private investigation” is routine journalistic due diligence in
18 Hawran v. Hixson, 209 Cal.App.4th 256 (2012), is

distinguishable. It involved a business’ press release that did
“not mention the subject SEC investigation, much less capture its
substance, gist or sting.” Id. at 280. The court “perceive[d] no
comparison between these circumstances and cases in which the
reporter’s privilege was held to apply.” Id. at 281-82.
63
reporting on official records and proceedings. It does not negate
the fair report privilege; otherwise, Section 47(d) would be
limited to verbatim republication of public records and
transcriptions of public meetings.
That is not the law. Well-established authority holds that
the fair report privilege applies to articles that present “a history
of the proceeding,” including references both to public records and
related interviews. Hayward, 265 Cal.App.2d at 260-61 (privilege
applied to news reports about police investigation based on “oral
statements of district attorneys, sheriffs, and police officers” as
well as “crime reports of a police department”). This reflects the
principle that the privilege requires “a certain amount of
breathing room for newspapers to explain the basis of a judicial
proceeding without at the same time opening themselves up to
exposure for defamation liability.” Dorsey v. National Enquirer,
973 F.2d 1431, 1437 (9th Cir. 1992).
In Dorsey, the privilege protected an article about litigation
that included out-of-court statements by a private investigator
offering “theories based upon the circumstances” in the court
records. Id. at 1437. Accord Crane, 972 F.2d at 1521-22
(privilege extended to portions of article “not derived from
64
Committee documents” which quoted interviews with the
reporter; “[s]tatements made by persons substantially involved in
a privileged proceeding, pertaining directly to the issues covered
by that proceeding and made in the course of the proceeding, fall
within the privilege’s compass”).
Similarly, in Braun, the court applied Section 47(d) in
granting a newspaper’s SLAPP motion, where the article about a
state auditor’s investigation included “statements made by
various persons” involved with the subject of the audit, along
with “the substance of the background reports and charges
leading up to the investigation; and a summary of the findings
that ultimately issued.” 52 Cal.App.4th at 1050-51. Accord J-M
Manufacturing, 247 Cal.App.4th at 104-05 (privileged press
release included lawyer’s out-of-court statements commenting on
evidence).
Rall’s argument that the privilege applies only to “portions”
of the articles (e.g., OB 72-73)19 was rejected by this Court under
19Rall incorrectly asserts that the trial court ruling “makes

clear that portions of the publications were not privileged ….”
OB 72. To the contrary, the trial court found that Rall’s
defamation claims failed for several reasons; it never stated that
any part of the Articles fell outside of Section 47(d).
18/A.A./5916-5917. Moreover, the trial court struck Rall’s entire
65
similar circumstances in Sipple. Sipple “urge[d] that the
privilege should be applied narrowly and should not shield the
entire article but only those statements that are part of the
proceedings.” 71 Cal.App.4th at 241. This Court disagreed,
holding that the privilege applied to the entire publication,
including interviews with participants in the proceedings “as well
as their supporters.” Id. at 246. The Court explained that the
interviews “expanded on the theme but did not otherwise alter
the substance of the privileged material such that a reader would
be affected differently if the information garnered by interviews
surrounding the … allegations were not included.” Id. at 245.
Notably, Rall’s OB fails to identify any allegedly
defamatory statement that falls outside of the privilege (OB 69-
73). Rall’s own evidence confirms that The Times accurately
reported what the LAPD records show: Rall never mentioned
physical force in his contemporaneous misconduct complaint
(7/A.A./2004-2005); the jaywalking incident ended with Rall
asking the officer for restaurant advice (3/A.A./687; 7/A.A./2009,
Complaint, and this Court “may affirm a trial court judgment on

any basis presented by the record whether or not relied upon by
the trial court.” Day v. Alta Bates, 98 Cal.App.4th 243, 252 n.1
(2002).
66
2016); and the LAPD investigated Rall’s complaint, determining
it was “unfounded” because there was “clear evidence to refute”
his allegations (7/A.A./2011).
Given this irrefutable evidence, Rall cannot demonstrate
that anything else in the Articles “alter[s] the substance of the
privileged material such that a reader would be affected
differently if the information garnered by interviews surrounding
the … allegations were not included.” Sipple, 71 Cal.App.4th at
245. Accord Crane, 972 F.2d at 1520 (the “newspaper’s
interpretation of [an] affidavit [was] privileged because it [was]
merely elaborating on what the affidavit already alleges”).
Third, Rall fails to show that the trial court erred in
concluding that the Articles offered a fair report of the “evidence
as received” from the LAPD. 18/A.A./5916. Rall simply recites
the statutory language, asserting that the Articles “were not ‘true
and fair’ reports of the LAPD’s file,” but his O.B. does not identify
any specific statement to which this assertion supposedly applies.
OB 69-70.20
20 Rall cannot do so on reply. See note 5.
67
Again, he does not do so because he cannot. The privilege
“carries with it a certain amount of literary license. The reporter
is not bound by the straitjacket of the [report’s] exact words.”
McClatchy, 189 Cal.App.3d at 975. Instead, a news report is
protected “if the substance, the gist, [or] the sting of the
[allegedly] libelous charge be justified.” Sipple, 71 Cal.App.4th at
244. Accord Colt v. Freedom Comm’n, 109 Cal.App.4th 1551,
1558-59 (2003) (plaintiff cannot defeat privilege with “fine
distinctions” between official records and news reports”).
Section 47 even applies where news reports differ in
significant ways from official records. Id. at 1558 (privilege
applied despite errors in article’s descriptions of details from SEC
proceedings); Carver, 135 Cal.App.4th at 357-358 (article
captured “essential point” of medical board records although it
stated 22 complaints were made against plaintiff instead of six);
Handelsman v. San Francisco Chronicle, 11 Cal.App.3d 381, 387
(1970) (privilege applied to article characterizing civil conversion
claim as accusation of “outright theft”).
Comparing the Articles and LAPD materials makes clear
that The Times’ reporting captured the “gist” and “substance” of
68
the records. Sipple, 71 Cal.App.4th at 244; compare 1/A.A./66-75
with 1/A.A./255-268; 7/A.A./1999-2018.21
Rall’s defamation claims boil down to his assertion that The
Times’ Articles did not present his “point of view.” OB 69. But
the July 28 piece included Rall’s response (1/A.A./241), and the
August 19 article had a long section titled “Rall’s explanation,”
along with links to Rall’s Internet posts about the controversy.
1/A.A./249-250. Even if the Articles had been entirely one-sided,
however, it is irrelevant. Because Section 47(d) is absolute, it
“does not require the reporter to resolve the merits of the charges,
nor does it require that he present the [plaintiff’s] version of the
facts.” Dorsey, 973 F.2d at 1436. Thus, in Dorsey, the court
applied the privilege to an article reporting on an affidavit that
21 Rall’s Complaint takes statements out of context, or nit-

picks individual phrases. E.g., 1/A.A./44, 48-49, 3./A.A./687,
7/A.A./2016 (objecting to description of LAPD audio as depicting
“polite” or “civil” interaction, even though Rall admits the
encounter ended with him asking officer for recommendations
about “local eateries”). Rall also objected to the phrase “audio
tape” versus “audio recording” (e.g., 1/A.A./47-48), although he
has used these terms interchangeably (e.g., 2/A.A./643). Rall’s
“quarrel with the language of the articles involves a level of
exegesis beyond the ken of the average reader of newspaper
articles,” which “need only convey the substance of the
proceedings on which they report.” Colt, 109 Cal.App.4th at
1560.
69
included accusations against the plaintiff, despite the
newspaper’s “failure to include statements that undercut [the
witness’] credibility.” Id. at 1435.
Likewise, in Paterno v. Superior Court, 163 Cal.App.4th
1342 (2008), the court rejected the plaintiff’s assertion that the
privilege should not apply because the defendant did not “place
[the] legal proceeding in ‘context’ by including what [plaintiff]
considers are the ‘key facts.’” Id. 163 Cal.App.4th at 1355. As
the court concluded, “journalists may simply report the facts of
proceedings without providing an explanation of those facts.” Id.
Accord Smith v. Press Democrat, 2011 U.S. Dist. LEXIS 121449,
at *15 (N.D. Cal. Oct. 20, 2011) (fair and true report privilege
“does not require [newspaper] to have presented plaintiff’s side of
her story or her ‘key facts’”). The trial court correctly found that
the Articles were privileged.
c. The Privilege Applies To The Articles As A

Matter Of Law.
Where, as here, the relevant records and publications are
before the Court, application of the privilege is a question of law.
McClatchy, 189 Cal.App.3d at 976-977; 18/A.A./5916.
Accordingly, courts regularly grant SLAPP Motions in cases
70
arising from media reports about official records and proceedings.
E.g., Sipple, 71 Cal.App.4th at 230; Braun, 52 Cal.App.4th at
1052-53; Colt, 109 Cal.App.4th at 1560; Paterno, 163 Cal.App.4th
at 1354-55 (refusal to allow discovery to oppose SLAPP motion
proper where defendant could prevail on fair report defense).
Neither the case law nor the record supports Rall’s cursory
argument that the privilege presents a “jury issue.” OB 71. To
the contrary, the only authorities he cites indicate the opposite.
OB 19, 71 (citing Healthsmart, 7 Cal.App.5th at 436-38 (granting
SLAPP motion on Section 47(d) grounds); J-M Manufacturing,
247 Cal.App.4th at 99, 105 (same)).22
Plaintiffs cannot escape early dismissal under Section 47(d)
by concocting a dispute about how journalists obtained public
records, because the only relevant issue is whether those records
were accurately presented. Braun, 52 Cal.App.4th at 1050 n.6
22 Pierce v. San Jose Mercury News, 214 Cal.App.3d 1626

(1989) (OB 72), is inapposite; it involved publication of
information a newspaper obtained from “a source familiar with
the case and from the department’s refusal to disclose specific
disciplinary actions.” Id. at 1630. The newspaper did not rely on
public records presented to the court. Id. In Handelsman, 11
Cal.App.3d at 386-87, the court affirmed a verdict in favor of a
newspaper, while recognizing that the privilege can be decided at
summary judgment or on demurrer under other circumstances.
71
(“[w]hen and how the Chronicle learned [the information from
public records was] not in issue. What does matter is whether
the Chronicle published a ‘fair and true’ account of these events
and whether they related to a ‘public official proceeding.’ They
did and they do.”); Medico v. Time, Inc., 643 F.2d 134, 146-47 (3d
Cir. 1981) (“how Time magazine obtained its knowledge of the
FBI materials is irrelevant” because article was “privileged as a
fair and accurate summary of” them).
Similarly, Rall’s attempt to create a jury question about
The Times’ contact with the LAPD is baseless. OB 31, 69. As the
trial court found, there was “no dispute” that the Articles
reported on police records and proceedings. 18/A.A./5916. The
court properly considered the relevant LAPD records (1/A.A./231-
268), which Respondents submitted, and which Rall did not
challenge on appeal. Doe v. Roman Catholic Archbishop, 177
Cal.App.4th 209, 218 n.3 (2009) (where plaintiff failed to mention
evidentiary objections in his opening brief “any issues concerning
the propriety of the trial court’s evidentiary rulings are
waived”).23
23The trial court considered the LAPD records in its

decision. 1/A.A./5910-5917. Consequently, Rall’s objections to
72
Rall’s own evidence also included the same LAPD records,
which he obtained through the CPRA. 3/A.A./718; 7/A.A./1999-
2018. And Rall repeatedly has acknowledged that the Articles
reported on records from police officials. E.g., OB 15; 2/A.A./643;
3/A.A./687.
Finally, Rall’s “jury issue” argument is devoid of a single
citation to his 18-volume appendix. OB 71-72.24 He failed to
provide any basis whatsoever for challenging the trial court’s
determination that the fair report privilege applies to The Times’
Articles as a matter of law. 18/A.A./5916.25
this evidence were “presumptively overruled,” and Rall had “the

burden … to renew the objections in the appellate court.” Reid v.
Google, 50 Cal.4th 512, 534 (2010). He did not do so, and cannot
do so belatedly on reply. See note 5, infra.
24Elsewhere in the OB, Rall claims that “the source of
these documents remains unknown,” pointing to a hearsay
statement from declarant Greg Palast. OB 31 (citing 3/A.A./728).
Respondents objected to this inadmissible assertion about what
someone who was not present at the meeting between Mr.
Beutner and Chief Beck supposedly told Palast. 13/A.A./3930.
The trial court properly ignored this inadmissible assertion.
Moreover, it is irrelevant, because Rall’s own evidence confirms
the contents of the LAPD records reported on by The Times. E.g.,
3/A.A./687, 7/A.A./1999-2018. See also Braun, 52 Cal.App.4th at
1050 n.6.
25Rall’s throwaway assertion that the “case was halted
before discovery could determine what exactly Chief Beck
provided” (OB 69) is irrelevant. Braun, 52 Cal.App.4th at 1050.
73
2. Rall Failed To Demonstrate That Any Of The
Statements At Issue Are Actionable.
Rall’s Content Claims also were properly stricken because
he did not meet his burden of proving that any of the statements
identified in the Complaint are actionable. 18/A.A./5917.
a. Rall Did Not Show That Any Statements At

Issue Are Materially False Or Defamatory.
Where, as here, the “disputed statements involve matters
of public concern, the plaintiff in a defamation action bears the
burden of showing the statements the defendant made were
false.” Melaleuca v. Clark, 66 Cal.App.4th 1344, 1355 (1998). In
the SLAPP context, a plaintiff must present “competent and
admissible evidence” showing that each complained-of statement
is materially false. Gilbert, 147 Cal.App.4th at 26-27. That
burden is not met if “the statement appears substantially true ….
Minor inaccuracies do not amount to falsity so long as the
substance, the gist, the sting, of the libelous charge be justified.”
Rall’s two dilatory requests for discovery in the trial court were
denied for lack of good cause. R.A.0005-0012. He did not
challenge those rulings in his OB; thus, he forfeited any
argument that the SLAPP Motions should have been denied on
this ground. See Holmes v. Petrovich Dev. Co., LLC, 191
Cal.App.4th 1047, 1073 (2011); note 5, supra.
74
Vogel v. Felice, 127 Cal.App.4th 1006, 1021 (2005) (original
emphasis).
Substantial truth may be determined by the court in the
first instance; courts regularly grant SLAPP motions where
plaintiffs fail to demonstrate material falsity. E.g., Gilbert, 147
Cal.App.4th at 27; Vogel, 127 Cal.App.4th at 1021-23; Reed v.
Gallagher, 248 Cal.App.4th 841, 861 (2016).
Additionally, to be actionable, an allegedly false statement
must be defamatory. A “defamatory meaning must be found, if at
all, in a reading of the publication as a whole,” and “cannot be
based on snippets taken out of context.” Balzaga, 173
Cal.App.4th at 1338 (quotations omitted). Rall also failed to
meet this burden with respect to any statement.
First, The Times cannot be held liable for noting
“discrepancies” between Rall’s account and LAPD records, or for
noting that LAPD records did not “back up” or “support” Rall’s
allegations, because he did not show these statements were
materially false. OB 74-76. Instead, comparing Rall’s blog post
with the LAPD records demonstrates such statements are
substantially true. 1/A.A./63-64, 231-232, 255-268; 7/A.A./1999-
2018. Among other things:
75
Rall’s contemporaneous police misconduct complaint did
not mention anything about the use of force, let alone
assert that he was thrown against a wall, as his blog
post later claimed. 7/A.A./2003-2005.
Rall concedes that the LAPD transcript, recording, and
even his “enhanced” audio include him asking Officer
Durr for restaurant advice at the end of the encounter.
3/A.A./687.26
Rall’s own evidence shows that the LAPD sent him a
letter concerning the results of its probe; the
investigator wrote that he “attempted numerous times
to contact Rall for a formal interview,” yet Rall claimed
in his blog post that “[t]hey had never notified me.”
Compare 1/A.A./63 with 7/A.A./2009, 2011.
Rall now alleges that “at least two women can be heard
on the enhanced version” of the audio (1/A.A./50), which
is a far cry from the blog post, where Rall claimed that
26 Rall’s claim that the trial court found that the audio
supported his account (OB 26-27) is false. Rall mischaracterizes
a passage in the ruling that plainly recites what the “complaint
alleges.” 18/A.A./5920.
76
“there were a couple dozen passersby shouting at the
cop” (1/A.A./63).
These are fairly described as “discrepancies” under any
standard, and certainly under the lenient “substantial truth”
test, where “it is sufficient if the substance, the gist, the sting of
the libelous charge be justified.” Gilbert, 147 Cal.App.4th at 28.
Rall also had the burden under Section 425.16 of
“presenting evidence that the statements were in fact
substantially false.” Vogel, 127 Cal.App.4th at 1021 (emphasis
added); Brodeur, 248 Cal.App.4th at 674 (plaintiff “must produce
evidence that would be admissible at trial”), but his cursory
discussion relies almost entirely on allegations in his Complaint.
OB 74-76. The only “evidence” that Rall cites is his own
declaration, which attaches the LAPD records and acknowledges
major inconsistencies, while trying to explain them away.
3/A.A./687, 718. That does not meet his evidentiary burden.
Vogel, 127 Cal.App.4th at 1021-23 (plaintiff’s inadequate
declaration failed to establish falsity); Carver, 135 Cal.App.4th at
358 (granting SLAPP motion for lack of falsity “[g]iven all of what
plaintiff does not dispute or effectively controvert”); Gilbert, 147
Cal.App.4th at 32 (SLAPP plaintiff attempting to show falsity
77
could “not impeach his own sworn testimony with contrary self-
serving averments”).
Second, Rall mischaracterizes the Articles, claiming that
they falsely state that LAPD records “proved that Officer Durr
did not use force against Rall and treated him politely.” OB 75
(emphasis added). This is another red herring. The Articles do
not make a determination about what actually happened during
Rall’s police encounter. 1/A.A./66-75. Based on the police files
and Rall’s statements, however, The Times concluded that the
records raise “serious questions about the accuracy of Rall’s blog
post.” 1/A.A./66, 75. That is not a statement about what the
records “proved,” nor is it defamatory. Thomas v. Los Angeles
Times, 189 F.Supp.2d 1005, 1013 (C.D. Cal. 2002) (finding no
defamatory meaning where article “raise[d] … questions” about
the plaintiff’s story “by setting forth [his] version of events along
with those of other witnesses and historical records”); Section
V.A.2.b, infra. The audio (and Rall’s “enhanced” audio) were
provided to readers; the Articles expressed subjective conclusions
about what could (and could not) be heard. Those conclusions are
constitutionally protected. Franklin v. Dynamic Details, 116
78
Cal.App.4th 375, 387-388 (2004) (conclusion based on disclosed
facts not actionable).
Third, Rall failed to show anything false or defamatory
about The Times’ characterization of the audio that it received
from the LAPD. OB 75-78. Contrary to Rall’s misrepresentation,
The Times never claimed that it received an “original” audiotape.
OB 77, 78 (emphasis added); See 1/A.A./66, 68-75. The Times
informed readers that “Durr’s recording [was] made on a micro-
cassette recorder and later transferred to a digital format.”
1/A.A./72 (emphasis added). The Times also reported Rall’s
criticisms about the audio (e.g., 1/A.A./66, 73-75), and provided
readers with a link to Rall’s purportedly “enhanced” version so
they could listen to it (1/A.A./74). Rall’s insinuation that The
Times ignored his account, or misrepresented to readers that it
had resolved what happened in 2001 based on the “original
media” (OB 78), is simply untrue.
More critically, Rall failed to show The Times’ description
of the audio defamed him – or that its language could create any
material difference in the mind of a reasonable reader who also
reviewed the underlying source materials, given the undeniable
79
discrepancies between his blog post and the LAPD records. See
Section V.A.1.27
Rall’s position is analogous to the plaintiff in Gilbert, a
plastic surgeon who sued a patient for defamation over her
website – “mysurgerynightmare.com.” 147 Cal.App.4th at 18.
The doctor argued that the patient posted “misleading”
photographs from before and after surgery, to make his work look
bad. Id. at 28. Just as Rall tried to manufacture a factual
dispute over supposed “audio enhancement,” the doctor in Gilbert
submitted a declaration from a witness whose computer analysis
found the photos unreliable because they “were taken from
different angles and on a different scale.” Id. at 28-29.
The appellate court saw through this tactic, observing that
the plaintiff “seeks to turn the court’s attention away from the
forest by focusing on the trees, or perhaps more accurately, a
branch of one tree.” Id.at 29. As the court explained, “the
average reader cares little about geometrical accuracy – what is
important is that the photographs were substantially accurate
27 Rall does not and cannot claim that his “enhanced” audio
reflects any sort of physical conflict or verbal abuse. OB 35-36,
74-78.
80
depictions of what Gilbert’s face looked like before and after
Sykes’s surgery”; because the declaration “did not negate this
fact, it did not help prove a prima facie case of defamation.” Id.
The same is true here. The Times accurately described the
recording it received from the LAPD. 1/A.A./66-75, 253-266,
7/A.A./1999-2018; Section V.A.1, supra. Thus, the complained-of
statements “were substantially accurate representations of” the
police records, and “were not defamatory as a matter of law.”
Gilbert, 147 Cal.App.4th at 29.
Rall’s other assertions about the Articles have no merit.
The Times did not claim to have “the complete files” of
the incident. OB 74. The July 28 piece stated that the
LAPD “has provided records about the incident,
including a complaint Rall filed at the time” and an
“audiotape of the encounter recorded by the police
officer.” 1/A.A./66. The August 19 article stated that
the LAPD “provided documents and a tape recording of
the 2001 encounter.” 1/A.A./68. These statements are
true, as Rall admits. Section V.A.1, supra; 3/A.A./718;
7/A.A./1999-2018; OB 15; 2/A.A./643. These statements
also are not about Rall, so cannot defame him. Ferlauto
81
v. Hamsher, 74 Cal.App.4th 1394, 1405 (1999) (finding
no defamatory meaning in statements “not even directed
at” plaintiff).
The statement in the August 19 article, attributed to
Officer Durr, that, “in his entire career, he said, he had
never handcuffed anyone for jaywalking” (1/A.A./72; OB
75), also is not about Rall and is not actionable.
Ferlauto, 74 Cal.App.4th at 1405. Rall’s only “evidence”
on this point is an article about illegal street racing
(11/A.A./3214), which is not inconsistent with the
statement in The Times’ article.28
Rall falsely asserts that the Articles suggest his “sole
response” was that he stands by his blog post. OB 77.
The July 28 note included his response, including his
28 Rall asserts that “[s]treet racing is a less serious offense,”

claiming it “is a violation while Jaywalking is a misdemeanor.”
OB 75. This is false. “[S]peed contests or exhibitions” and
“reckless driving” are misdemeanors. Vehicle Code § 40000.15.
Moreover, cars illegally racing on public streets pose greater
danger than a pedestrian jaywalking. But fundamentally, Rall
misunderstands the substantial truth inquiry: statements are
protected if they capture the gist or sting of the literal truth. Rall
cannot make a literally true statement actionable through a
series of strained inferences. Whether or not Officer Durr
handcuffed someone for street racing does not show that he ever
handcuffed a jaywalker.
82
claim that the LAPD audio “was of poor quality and
contained inaudible segments.” 1/A.A./66. The August
19 piece included a long section titled “Rall’s
explanation” and linked to Rall’s web posts and other
material offering his perspective. 1/A.A./73-74.
Rall fails to show anything actionable in the statement
that “Department records show that investigators …
tried repeatedly to reach Rall.” 1/A.A./69. He claims
that he did not receive the messages (OB 78), but this
does not controvert the statement that the “records
show” that the investigators tried to reach him. E.g.,
7/A.A./2009 (LAPD report Rall submitted states
investigating officer “attempted numerous times to
contact Rall for a formal interview” and “numerous
messages were left on his answering machine”).
Finally, Rall failed to present evidence showing anything
false in the Articles’ discussion of Rall’s earlier writings about the
jaywalking incident. Rall admits his prior accounts had
“different levels of detail” (OB 76). His contemporaneous
complaint in 2001 said nothing about violence or any
handcuffing. 7/A.A./2004-2005. His 2005 account mentioned
83
handcuffs for the first time (1/A.A./323), but his accusation about
violence first surfaced in 2006 (1/A.A./324). As the trial court
noted, that Rall “may have an explanation” for variations “does
not make the report on the variances untrue.” R.A.0060.
b. Subjective Expression In The Articles Is Not

Actionable.
The remaining statements Rall complains about are
subjective comments, or conclusions drawn from undisputed
facts. OB 77-78. None of these statements are actionable.
Milkovich v. Lorain Journal, 497 U.S. 1, 20 (1990) (“statement of
opinion” that does not contain “provably false factual
connotation” is constitutionally protected); Seelig, 97 Cal.App.4th
at 810 (there can be no liability for “statements of the speaker’s
subjective judgment”); Ferlauto, 74 Cal.App.4th at 1401
(“rhetorical hyperbole, vigorous epithets, lusty and imaginative
expressions of contempt, and language used in a loose, figurative
sense have all been accorded constitutional protection.”)
Under this well-established law, even if The Times had
stated expressly that Rall’s work “was of low quality and low
integrity” (OB 77-78), which it did not, the statement would be
constitutionally protected. E.g., Moldea v. New York Times, 22
84
F.3d 310, 317 (D.C. Cir. 1994) (criticism of plaintiff’s “sloppy
journalism” was constitutionally protected); James v. San Jose
Mercury News, 17 Cal.App.4th 1, 19 (1993) (columnist’s
implication that lawyer was “guilty of a ‘sleazy’ (and thus
inferably unethical) tactic” was protected speech); Moyer v.
Amador Valley Jt. Union High School Dist., 225 Cal.App.3d 720,
725 (1990) (“worst teacher at [school]” statement was
constitutionally protected).
In evaluating this constitutional protection, courts consider
“the facts surrounding the publication, the nature and full
content of the statement and the knowledge and understanding
of the audience to whom the publication was directed.” Rudnick
v. McMillan, 25 Cal.App.4th 1183, 1191 (1994). Here, the
Articles appeared in the Opinion and Reader’s Representative
sections of The Times’ website, labeled as editors’ notes.
1/A.A./66, 68. The presentation signaled to readers that the
pieces would include subjective conclusions. Cochran v. NYP
Holdings, 58 F.Supp.2d 1113, 1123 (C.D. Cal. 1998) (placement of
column bolstered conclusion that statements criticizing lawyer’s
performance were nonactionable opinion).
85
Furthermore, “[w]hen an author outlines the facts available
to him, thus making it clear that the challenged statements
represent his own interpretation of those facts and leaving the
reader free to draw his own conclusions, those statements are
generally protected by the First Amendment.” Partington v.
Bugliosi, 56 F.3d 1147, 1156-57 (9th Cir. 1995). The Partington
court rejected a libel action, because the author “expressed his
own opinion after having outlined all of the facts that serve as
the basis for his conclusion.” Id. at 1156.
Courts regularly apply these bedrock First Amendment
principles to protect publications like the Articles. For example,
in Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984), an article
questioning the plaintiff’s academic work was constitutionally
protected because “the thrust of the column, taken as a whole, is
to raise questions about Mr. Ollman’s scholarship and intentions,
not to state conclusively … that [he] is not a scholar or that his
colleagues do not regard him as such.” Id. at 990. The “First
Amendment is served ... by those articles that, more modestly,
raise questions and prompt investigation or debate.” Id. at 983.
Accord Howard v. Antilla, 294 F.3d 244, 254 (1st Cir. 2002) (First
Amendment protected article which was “essentially an account
86
of two sides of an issue in which [the author] merely raises
questions concerning the authorities’ treatment of the dispute”).
The decision in Thomas is analogous. The district court
granted The Times’ SLAPP motion, dismissing a libel action
based on an article that questioned the plaintiff’s account of his
World War II experiences. 189 F.Supp.2d at 1009. The article
“compared several of Thomas’ accounts of his role in historic
events with other records and recollections.” Id. at 1016. The
court held that “[e]ven if [the author’s] opinion is that Thomas
lied and that opinion comes through in the article, that opinion is
clearly based on a consideration of both sides of the story. If the
opinion is based on disclosed facts, it is not actionable.” Id. at
1016-1017. “At most,” the court held, “a reasonable juror would
find that Defendants intended to raise questions about Thomas’
story.” Id. at 1013.
The same is true here. The Articles expressed the view
that LAPD records raise “serious questions about the accuracy of
Rall’s blog post.” 1/A.A./66, 75. In doing so, the Articles
examined both sides of the controversy, describing the
substantial inconsistencies between Rall’s piece and LAPD
87
records, while also providing Rall’s explanations, leaving it to
readers to reach their own conclusions. 1/A.A./66, 68-75.
Because the Articles “disclosed all of the facts on which
[they were] based and did not imply that there are other,
unstated facts supporting” them, their conclusions are
constitutionally protected. Franklin, 116 Cal.App.4th at 387-88
(conclusion that plaintiff stole copyrighted material and
plagiarized data was nonactionable because factual basis was
disclosed).
Rall’s response is to assert dismissively that “facts were
withheld from readers.” OB 78. But Rall does not identify any
pertinent “facts” omitted by The Times; he simply tries to
mischaracterize the actual contents of the Articles, which
accurately described the source materials from the LAPD and
presented Rall’s response at length. See Section V.A.2.a, supra.
Plainly, Rall wishes the Articles were favorable to him and
critical of the LAPD. OB 76-78. But the requirement that an
author disclose facts upon which an opinion is based does not
mean that the author must endorse the subject’s version of the
facts. Partington, 56 F.3d at 1159 (“[a]uthors should have
‘breathing space’ in order to criticize and interpret the actions
88
and decisions of those involved in a public controversy”). Accord
Janklow v. Newsweek, 788 F.2d 1300, 1306 (8th Cir. 1986)
(“[c]ourts must be slow to intrude into the area of editorial
judgment”).29
3. Rall Failed To Comply With The Retraction Statute

And Did Not Demonstrate Recoverable Damages.
The orders striking Rall’s Content Claims also should be
affirmed because Rall failed to demand a retraction for the vast
majority of the statements identified in the Complaint, and did
not demonstrate recoverable damages.30
California’s retraction statute, Civil Code § 48a, requires
that publishers be provided an opportunity to retract allegedly
inaccurate statements before being subjected to suits for general
29 Dickinson v. Cosby, 17 Cal.App.5th 655 (2017), is

inapposite. OB 78-79. Applying the context-dependent “totality
of the circumstances” test, this Court held that “a lawyer’s letter
threatening litigation and setting out the factual and legal basis
for it” was actionable. Id. at 688-89. That is distinguishable from
a newspaper report that raises questions, based on a balanced
review of public records and the plaintiff’s own statements. The
same is true of Yelp v. Superior Court, 17 Cal.App.5th 1, 16-18
(2017), which involved an online review accusing an accountant
of misconduct.
30 Rall’s assertion that the issue of damages “was not
meaningfully contested below” is incorrect; Respondents raised
this issue as a separate basis for striking Rall’s content claims.
E.g., 18/A.A./5774-5775, 5832-5833, 5856-5857.
89
damages. Freedom Newspapers v. Superior Court, 4 Cal.4th 652,
654-56 (1992). Consequently, Rall was required to serve a timely
“written notice specifying the statements claimed to be libelous
and demanding that the same be corrected.” Id. If no specific
retraction demand is timely made, the plaintiff is limited to
“special damages,” i.e., “damages that plaintiff alleges and proves
that he or she has suffered in respect to his or her property,
business, trade, profession, or occupation … and no other.” Civ.
Code §48a(d)(2). If a plaintiff fails to comply with Section 48a,
and does not adequately plead and prove special damages, the
claims should be stricken under Section 425.16. AEG v. Snepp,
171 Cal.App.4th 598, 643 (2009) (striking claims where plaintiff
sent inadequate retraction demand and “presented no proof of
special damages”).
Rall’s only correspondence requesting retraction of
particular statements was his email of September 4, 2015, which
identified only four of the 32 statements identified in his
Complaint (Cmplt. ¶¶ 20(a), (g), (n), and (v)). 1/A.A./46-51, 277-
279. Consequently, Rall failed to comply with Section 48a with
respect to 28 of 32 statements. 1/A.A./43-51 (Cmplt. ¶¶ 14(c)-(i);
¶¶ 20(b)-(f), (h)-(m), (o)-(u), (w)-(y)).
90
Rall is barred from recovering damages arising from
publication of those 28 statements, other than “special” damages.
C.C.P. § 48a; Gomes v. Fried, 136 Cal.App.3d 924, 937-38 (1982)
(plaintiff cannot recover general damages for statements not
specified in demand). But Rall failed to plead or prove any
concrete, quantifiable injury. OB 80-81. His Complaint contained
only boilerplate allegations of harm (1/A.A./52-53, 55), and his
only “evidence” is his own declaration, which did not identify a
single specific economic loss. 3/A.A./716-717.
Rall submitted five declarations from colleagues attesting
that The Times’ publications did not hurt Rall’s professional
standing. E.g., 2/A.A./529 (declarant has “not met a single
colleague who said they believe Ted lied about his police
encounter”); 2/A.A./535 (“Ted’s reputation as a journalist … was
unchanged”); 2/A.A./541 (Rall’s reputation “remains impeccable”);
2/A.A./550 (Rall’s reputation among “colleagues in the cartooning
trade … did not, … change materially after his departure from
the Times”); 2/A.A./568 (incident “didn’t dim [his] reputation and
may have enhanced it”).
Rall’s deficient pleading and contradictory evidence did not
meet his burden of proving special damages, barring any recovery
91
for 28 of the 32 statements in the Complaint. Gang v. Hughes,
111 F.Supp. 27, 29 (S.D. Cal. 1953) (“general allegation of loss of
business” not sufficient; “plaintiff must allege the specific manner
in which he lost business as a result of the defamation”);
Pridonoff v. Balokovich, 36 Cal.2d 788, 792 (1951) (“general
allegation of loss of a prospective employment, sale, or profit will
not suffice”).
This defect is fatal to the remainder of his claims as well.
Where a plaintiff cannot demonstrate a statement caused injury,
given other non-actionable published statements, his defamation
claim fails. Coastal Abstract Serv. v. First Am. Title Ins., 173
F.3d 725, 732-33 (9th Cir. 1999) (libel plaintiff cannot recover
damages attributable to non-actionable statements).31 Thus,
even if Rall had presented admissible evidence that the four
statements in his retraction demand were actionable (which he
did not), his Content Claims fail because no recoverable damages
were linked to those statements.
31 Accord Fisher v. Larsen, 138 Cal.App.3d 627, 635-36

(1982) (defamation claim dismissed where significant negative
press coverage precluded proof that allegedly defamatory
statements caused damage); Jensen v. Hewlett Packard, 14
Cal.App.4th 958, 971 n.15 (1993) (nonsuit proper in defamation
case where plaintiff “presented no evidence of causation” tying
harm to actionable statements).
92
Rall’s cursory reference to “per se” damages ignores the
effect of his failure to comply with Section 48a. OB 80. “Per se”
defamation is a common law concept, where reputational damage
may be assumed for certain kinds of statements. Correia v.
Santos, 191 Cal.App.2d 844, 851 (1961). But Section 48a is a
legislative enactment; for public policy reasons, it requires a
showing of special damages if a retraction is not timely
demanded. An allegation of “defamation per se” cannot
circumvent the statute. Morris v. Nat’l Federation of The Blind,
192 Cal.App.2d 162, 165 (1961) (if Section 48a applied, “failure to
demand retraction would bar all recovery” despite allegation of
libel per se); Snepp, 171 Cal.App.4th at 604, 643 (striking claims
for lack of special damages despite allegation that broadcast was
“defamatory per se”). Rall’s allegation of “per se” defamation
cannot salvage his claims.
4. Actual Malice Is Irrelevant At This Stage.
Rall accuses the trial court of having “ducked” actual
malice (OB 81), but that issue was not raised in Respondents’
SLAPP Motions. The trial court properly struck Rall’s Complaint
on other grounds. Nygård, 159 Cal.App.4th at 1054 (granting
SLAPP motion; where plaintiffs failed to show falsity, court “need
93
not consider” public figure status or actual malice). Rall’s
attempt to distract by making unfounded allegations of malice
should be disregarded.
5. Rall Abandoned His Duplicative Emotional Distress

Claim.
Rall only mentions his emotional distress claim in his
procedural history. OB 22. Therefore, this Court should “deem
[Rall] to have abandoned any challenge to the order striking
[this] claim[] because of his failure to address the matter in his
opening brief.” Paulus v. Bob Lynch Ford, 139 Cal.App.4th 659,
684-85 (2006). He cannot “salvage these abandoned issues” by
belatedly discussing his IIED claim for the first time on reply. Id.
at 685; see also note 5, supra.
Nonetheless, Rall’s IIED claim was properly stricken. It
arises from the same allegations as his other Content Claims
(1/A.A./60), and is barred for the reasons as those claims. See
Gilbert, 147 Cal.App.4th at 34 (striking duplicative IIED claim
subject to same defenses).
Furthermore, the conduct alleged here – disclosing
discrepancies between Rall’s blog post and official records, and
making an editorial decision not to publish Rall’s future work
94
(1/A.A./60) – is not “outrageous, that is, beyond all bounds of
reasonable decency.” Comstock v. Aber, 212 Cal.App.4th 931, 954
(2012). Accord Koch v. Goldway, 817 F.2d 507, 510 (9th Cir.
1987) (defendant’s “reprehensible” reference to plaintiff as a Nazi
did not reach “level of conduct necessary” to support IIED claim).
Finally, Rall failed to allege or submit evidence of “severe
emotional distress.” Comstock, 212 Cal.App.4th at 954. His
boilerplate damage allegations, and declaration that he sleeps
poorly and drinks too much, do not meet this strict requirement.
1/A.A./60, 3/A.A./717-718. Hughes v. Pair, 46 Cal.4th 1035, 1051
(2009) (“plaintiff’s assertions that she has suffered discomfort,
worry, anxiety, upset stomach, concern, and agitation” did not
meet IIED standard).
B. Rall’s Publication Claims Were Properly Stricken.
Rall’s Fourth, Fifth, Sixth, Seventh, and Eighth Causes of
Action, which arise solely from The Times’ decision to stop
publishing his work, also were properly stricken.
1. The First Amendment Protects The Times’ Absolute

Right To Decide What To Publish.
Rall concedes that federal and state constitutional law bar
any attempt to control The Times’ editorial content by imposing
95
liability for its editorial choices. OB 51 (“[o]f course, the First
Amendment prohibits that kind of intrusion upon editorial
choice”). As the Ninth Circuit held in McDermott, 593 F.3d at
953, “[t]he First Amendment protects the right of a newspaper to
control its content.” That is because the “choice of material to go
into a newspaper ... constitute[s] the exercise of editorial control
and judgment. It has yet to be demonstrated how governmental
regulation of this crucial process can be exercised consistent with
First Amendment guarantees of a free press.” Tornillo, 418 U.S.
at 258.
Laws that interfere with editorial discretion are subject to
First Amendment limitations. For example, in Smith v.
California, 361 U.S. 147 (1959), the Court struck down a Los
Angeles ordinance that eliminated scienter as a requirement for
holding a book seller responsible for selling obscene materials.
Although the effect on speech arguably was indirect, the Court
held the Constitution forbade it. Id. at 150-51. Accord CBS v.
Democratic Nat’l Comm., 412 U.S. 94, 155 (1973) (Douglas, J.,
concurring) (“the First Amendment puts beyond the reach of
Government federal regulation of news agencies save only
96
business or financial practices which do not involve First
Amendment rights” (emphasis added)).
In Lyle v. Warner Bros., 38 Cal.4th 264 (2006), the
California Supreme Court made clear that courts must consider
the context in which employment claims arise in evaluating
whether the plaintiff has stated and substantiated a claim. Id. at
286-287. Justice Chin’s concurrence focused on the defendant’s
First Amendment rights: “Lawsuits like this one, directed at
restricting the creative process in a workplace whose very
business is speech related, present a clear and present danger to
fundamental free speech rights.” Id. at 297 (Chin, J., concurring).
Thus, “in cases involving the rights protected by … the First
Amendment,” courts impose stringent burdens on the plaintiff.
Id. at 300.
Ampersand Publ’g v. NLRB, 702 F.3d 51, 56 (D.C. Cir.
2012), is instructive. There, the court reversed an NLRB decision
protecting newspaper employees who attempted to coerce the
publisher into modifying newspaper content through collective
bargaining. As the court explained:
The First Amendment affords a publisher – not a

reporter – absolute authority to shape a newspaper’s
content ….
97
“Where enforcement of the [generally applicable law]
would interfere with a newspaper publisher’s
‘absolute discretion to determine the contents of [its]
newspaper[],’ the statute must yield.”
Id. (citation omitted)).
Courts consistently reject employment claims arising from
personnel decisions that implicate the content of an expressive
work. For example, in McDermott, the Ninth Circuit ruled that
an order “[t]elling the newspaper that it must hire specified
persons” was unconstitutional, noting that it “is bound to affect
what gets published.” 593 F.3d at 962. Accord Nelson v.
McClatchy Newspapers, 936 P.2d 1123, 1133 (Wash. 1997)
(finding newspaper’s no-politics policy for journalists was within
its right to control editorial processes and protect against
appearance of bias); Newspaper Guild of Greater Philadelphia,
Local 10 v. NLRB, 636 F.2d 550, 560 (D.C. Cir. 1980) (newspaper
had right to unilaterally adopt editorial ethics rules,
notwithstanding collective bargaining requirements).
Eisenberg v. Alameda Newspapers, 74 Cal.App.4th 1359
(1999), is on-point. The court affirmed summary judgment for a
newspaper publisher that fired a reporter based on the content of
an article, and rejected the reporter’s claim for wrongful
98
termination in violation of public policy, holding that “it was the
[newspaper’s] right to set and enforce its own standards for
acceptable and responsible reporting. Eisenberg was fired
because he did not meet those standards.” Id. at 1391.
“[T]he courts have long held that the right to
control the content of a privately published
newspaper rests entirely with the
newspaper’s publisher. The First
Amendment protects the newspaper itself,
and grants it a virtually unfettered right to
choose what to print and what not to.”
Id. See also Claybrooks v. ABC, 898 F.Supp.2d 986, 999 (M.D.
Tenn. 2012) (television producers’ personnel choices were
constitutionally protected against discrimination claims; casting
was “part and parcel of the Shows’ creative content”).
Rall ignores this clear law, choosing instead to exaggerate
the impact of the trial court’s decision. OB 17-18, 51-52. The
Times does not claim that “all of its activities are protected by the
First Amendment” (OB 17), nor does it contend that publishers
are immune from all federal or state employment laws. (OB 18,
51-52.) This case is not about conduct unrelated to the content of
99
The Times. OB 59. The case is all about content – Rall sued The
Times for disclosing to readers that it would no longer publish his
work because of serious questions about the accuracy of the blog
post that he submitted.
The Times’ decision to stop publishing his work did not
violate Rall’s civil rights. Id. Even if The Times had collaborated
with the LAPD to “silenc[e] a critic” – a ludicrous charge – The
Times has an absolute right to decide how it will report on the
LAPD; it had no obligation to let Rall dictate its editorial stance.
Ampersand Publ’g, 702 F.3d at 56. The Times also had every
right to end its relationship with Rall, after it concluded he had
not met its editorial standards in writing about his interaction
with the LAPD.
None of Rall’s cases support a contrary conclusion. In each
case he cites,32 the court found that a news organization’s
“business or financial practices which do not involve First
Amendment rights” were properly subject to scrutiny. CBS, 412
U.S. at 155 (emphasis added). As the Washington Supreme
32OB 52-53 (citing Associated Press v. NLRB, 301 U.S. 103

(1937); Passaic Daily News v. NLRB, 736 F.2d 1543 (D.C. Cir.
1984); Hausch v. Donrey, 833 F.Supp. 822 (D. Nev. 1993)).
100
Court explained, the “Associated Press case is limited to the
[National Labor Relations Act] and union activity,” and courts
“should not stretch [it] beyond limits carefully crafted as part of
the original text to guide its application.” Nelson, 936 P.2d at
542.
The same is true of the Nevada court’s decision in Hausch,
which involved a discrimination lawsuit by a newspaper editor
claiming that she was by-passed for a promotion given to a male
colleague. 833 F.Supp. at 823-24. The publisher offered only a
“general allegation” that the choice of an editor “necessarily
impacts on what the [newspaper’s] message becomes,” but the
plaintiff did not claim that the hiring decision had any direct
relationship to specific editorial content. Id. at 832. As the
district court explained in McDermott v. Ampersand Publ’g, 2008
WL 8628728 (C.D. Cal. May 22, 2008), “Hausch only stands for
the proposition, … that, without an argument as to their specific
relationship to the exercise of its editorial discretion, a
newspaper’s personnel decisions with regard to editorial
employees are not as a matter of course rendered free from
regulation by the protections of the First Amendment.” Id. at *12
n.8.
101
Rall’s Publication Claims arise directly from The Times’
decision to stop publishing his work. 1/A.A./56-60. Allowing a
freelancer to dictate whether his work will be published, through
baseless “wrongful termination” and implied “contract” claims,
indisputably interferes with the publisher’s First Amendment
rights. Any freelance reporter who disagreed with an editor’s
changes to an article or disliked an assignment could file a
lawsuit, thereby subjecting the publisher to intrusive discovery
into editorial processes. That is not, and cannot be, the law.
Finally, Rall’s claim that this is a question of “right” versus
“remedy” (OB 52-53) is sophistry. The government cannot
constitutionally interfere with the editorial process, regardless of
the manner of interference. As the United States Supreme Court
has held:
What a State may not constitutionally bring about by
means of a criminal statute is likewise beyond the
reach of its civil law of libel. The fear of damage
awards … may be markedly more inhibiting than the
fear of prosecution under a criminal statute.
New York Times v. Sullivan, 376 U.S. 254, 277 (1964). It is well-
established that the full panoply of First Amendment protections
102
apply to lawsuits that seek only money damages. E.g., Shulman,
18 Cal.4th at 216 (“[t]ort liability, obviously, can extend no
further than the First Amendment allows”); Blatty, 42 Cal.3d at
1042 (First Amendment protections apply “to all claims whose
gravamen is the alleged injurious falsehood of a statement”).33
The Times had the right to stop publishing Rall’s work.
Where, as here, the purported “adverse employment action” is an
exercise of the newspaper’s First Amendment rights – namely, a
decision about whether particular work will be published – it
cannot form the basis of a claim. See Eisenberg, 74 Cal.App.4th
at 1391.
2. Rall’s Publication Claims Fail Because He Was Not

An Employee.
Rall concedes that all of his Publication Claims depend on a
finding that he was an employee of The Times; all of these claims
require an employment relationship. See Labor Code § 1050
33Jordan-Benel v. Universal Studios, 859 F.3d 1184, 1191

(9th Cir. 2017), does not hold that a plaintiff can avoid First
Amendment constraints by focusing on the remedy he seeks, as
opposed to the wrong he alleged. Jordan-Benel held only that the
SLAPP statute did not apply to an implied contract claim arising
from the alleged use of the plaintiff’s idea without compensating
him. Id. Rall is not claiming that The Times published his work
and did not pay him; he is complaining about a decision not to
publish it.
103
(statute applies to former employees); 1102.5 (prohibiting
retaliation by “[a]n employer, or any person acting on behalf of
the employer”); Varisco v. Gateway Science & Eng., 166
Cal.App.4th 1099, 1102 (2008) (rejecting contract and related
claims absent employment relationship); Soukup v. Law Offices
of Herbert Hafif, 39 Cal.4th 260, 288 (2006) (employer-employee
relationship is “prerequisite” to Labor Code § 1102.5 claim);
Hansen v. CDCR, 171 Cal.App.4th 1537, 1546 (2008) (same).
Rall conceded, in an email to The Times and in his
Complaint, that he was a freelancer. 1/A.A./39, 282. That is
unsurprising; Rall was an independent contractor as a matter of
law, i.e., one “who renders service for a specified recompense for a
specified result, under the control of his principal as to the result
of his work only and not as to the means by which such result is
accomplished.” Labor Code § 3353.34 As the Court explained in
Varisco, “the most significant question … is whether the person
to whom service is rendered has the right to control the manner
and means of accomplishing the result desired. ...” 166
34Rall’s claim that he is presumed to be an employee is

irrelevant. OB 54-55. The record shows that The Times easily
overcame any presumption.
104
Cal.App.4th at 1103 (citing S. G. Borello & Sons, v. Dep’t of Ind.
Rel., 48 Cal.3d 341, 350 (1989)). “Under this rule, the right to
exercise complete or authoritative control must be shown, rather
than mere suggestion as to detail.” Jackson v. AEG Live, 233
Cal.App.4th 1156, 1179 (2015).35
This is not a close case. Rall resides in New York
(1/A.A./37) – far from The Times’ headquarters in Los Angeles
(id.) – and he decided when, where and how he would work
(1/A.A./271-272). Rall did not receive reviews, and had no
supervisor. Id. The Times required the result of Rall’s work to
meet its publication standards and deadlines (1/A.A./271;
3/A.A./681), but it did not exercise control over the manner and
35 In Dynamex Ops. West, v. Superior Court, 4 Cal.5th 903

(2018), the California Supreme Court adopted a different test for
distinguishing employees from independent contractors in the
wage order context, but made clear the common law test
embraced in Borello applies in other contexts. Id. at 948. The
Court explained that the Borello standard “emphasizes the
primacy of statutory purpose” in making this determination;
consequently, “when different statutory schemes have been
enacted for different purposes, … a worker may properly be
considered an employee with reference to one statute but not
another.” Id. (citations omitted). In approving a different test in
the wage order context, the Court made clear it was “respect[ing]
the IWC’s legislative authority to promulgate the test” governing
that situation. Id.
105
means by which Rall created his cartoons and blog posts
(1/A.A./271).
The “secondary indicia of the nature of the relationship” –
which the Court should “weigh[] and consider[] as a whole” – also
establish that Rall was not an employee. Varisco, 166
Cal.App.4th at 1103-1104, 1106 (citing Borello, 48 Cal.3d at 351).
His syndicated work appeared in a number of other publications.
1/A.A./39-40. Rall’s evidence confirms that his work was not
exclusive to The Times, and he actively sought out work from
other clients simultaneously. 2/A.A./583-584; 3/A.A./699, 716.
Rall used his own work space and tools (1/A.A./271), and
his distinct occupation (cartoonist and author) requires unique,
individualized skills (id.; 1/A.A./39-40). The parties did not have
any agreement for service for a particular period of time.
1/A.A./271; 3/A.A./681. Instead, Rall was paid for each published
item ($200 for cartoons and $100 for blog posts); invoiced The
Times for his work; and paid his own taxes and expenses.
1/A.A./271, 297-314; see 1/A.A./39. Finally, The Times regularly
publishes content from freelancers and members of the public, as
well as from employees; the fact of publication does not define the
relationship. 1/A.A./271.
106
Courts routinely find independent contractor status in
much closer relationships. For example, in Arnold v. Mutual of
Omaha, 202 Cal.App.4th 580 (2011), an insurance agent was an
independent contractor, although defendant provided office space,
managers, training, computer software and reimbursed certain
expenses. Id. at 588-589.36 These factors did not even create
triable issues of fact, because, among other things, plaintiff used
her own judgment in deciding when and how she would work, her
relationship with defendant was nonexclusive, and defendant did
not conduct performance reviews or supervise her work. Id. at
589.
Similarly, in Beaumont-Jacques v. Farmers Group, 217
Cal.App.4th 1138, 1145-1146 (2013), the court held that an
insurance agent was an independent contractor, although
defendant required annual business plans, regular attendance at
meetings, adherence to “Minimum Acceptable Performance
Standards,” and had “sole final authority to hire and dismiss any
agent in [plaintiff’s] district, and to provide a two-year subsidy
36 Accord Mission Insurance v. Workers’ Comp. Appeals

Bd., 123 Cal.App.3d 211, 216-217, 221 (1981) (plaintiff was
independent contractor although “he attended lectures and
classes at Morse, and wore a shirt with a Morse insignia”).
107
(partially at [plaintiff’s] expense) for her district’s newly hired
agents.” Because plaintiff retained control over the manner in
which she satisfied defendant’s requirements, she was an
independent contractor. The same analysis applies here.
Rall largely ignores these authorities, asserting only that
this is a jury question. But California law is clear that “if from
all the facts only one inference may be drawn it is a question of
law.” Varisco, 166 Cal.App.4th at 1105 n.2 (affirming summary
judgment for company because “undisputed facts” established
plaintiff was independent contractor rather than employee).
California courts routinely resolve this issue pre-trial. E.g.,
Arnold, 202 Cal.App.4th at 582 (affirming summary judgment for
company); Beaumont-Jacques, 217 Cal.App.4th at 1140 (same);
Jackson, 233 Cal.App.4th at 1178-82 (same; summary
adjudication).
Rall’s heavy reliance on Tieberg v. Unemployment Ins.
App. Board, 2 Cal.3d 943 (1970), is misplaced. There, the Court
affirmed an agency finding that writers were employees largely
because collective bargaining agreements referred to them as
employees and even provided for pensions – neither of which
exist here. Id. at 952. In addition, the agreements gave the
108
producer extensive control over the writers, including requiring
in-person meetings. Id. The producer also exercised
“considerable control over the details of the work.” Id. at 954.
Similarly, Ali v. L.A. Focus Publication, 112 Cal.App.4th
1477 (2003), is inapposite. There, the court found that payment
to plaintiff “by the article rather than given a guaranteed
monthly salary is certainly indicative of an independent
contractor status,” but found substantial other evidence weighed
against summary judgment. Id. at 1485. This included evidence
that the plaintiff “attended or was required to attend weekly staff
meetings”; defendant provided plaintiff with office space, supplies
and services (id.); and evidence that articles were “written under
the direction and control of [the editor], who worked closely with
him critiquing the articles’ content and style.” Id. at 1486
(citations omitted). The plaintiff also was required to obtain the
editor’s “consent before submitting articles to other publications”;
plaintiff assisted “in other editorial duties”; none of the people
defendant identified as “freelance writers” had the same
obligations or benefits as plaintiff; and defendant “may have
identified [plaintiff] as an employee” in getting him a press pass.
109
Id. The cumulative evidence – easily distinguishable from Rall’s
circumstances – led the court to find a jury issue.37
Rall has not cited a single case where a jury issue was
found based on the kind of minimal facts he presented to the trial
court. The Times exercised control over the ultimate decision to
publish or not publish, but Rall controlled everything else: he
worked in his home, on his own schedule, using his own
materials; and he was paid by the piece. Because Rall was an
independent contractor, the trial court’s order striking his
Publication Claims should be affirmed.
3. Rall’s Publication Claims Fail For Other Reasons.
Rall’s O.B. abandons his claim for retaliation under Labor
Code § 1102.5. His other Publication Claims fail for the reasons
discussed above, and because Rall did not establish the elements
of those claims.
37 Ali does not create new protection against “retaliation by

proxy” or the purported silencing of a critic, as Rall claims. O.B.
59. In Ali, an employee was punished for political speech outside
the workplace. 112 Cal.App.4th at 1483, 1488. In contrast, Rall
tries to assert a right to publish on The Times’ website. Plainly,
he has no such right.
110
a. Rall’s Wrongful Termination Claim Was
Properly Stricken.
California employers generally may terminate employees at
will. Labor Code § 2922. Wrongful termination claims are a
“narrow exception” to this rule, where a “fundamental public
policy” requires limiting the employer’s rights. Green v. Ralee
Eng’g 19 Cal.4th 66, 71 (1998). To state a claim, Rall had to
demonstrate his “termination” was for one of a limited set of
reasons: it “must violate a public policy that is fundamental, well
established and carefully tethered to a constitutional or statutory
provision.” Carter v. Escondido Union HSD, 148 Cal.App.4th
922, 925 (2007) (coach’s advice to students did not implicate
fundamental public policy).38 Rall was required to demonstrate
conduct that violated a law adopted for the public benefit, Foley
v. Interactive Data, 47 Cal.3d 654, 670 (1988), and “[i]t must be
clear from the provision itself or from some other legislative or
38 Rall alleges The Times violated its internal procedures

and industry standards. 1/A.A./40. Even if true – which The
Times strongly disputes – that cannot provide a basis for a
wrongful termination claim. Rope v. Auto-Chlor Sys. of Wash.,
220 Cal.App.4th 635, 649 (2013) (“an internal complaint does not
trigger whistleblower protection under Labor Code section 1102.5
(citation omitted)); Carter, 148 Cal.App.4th at 934 (Section
1102.5 did not apply to “routine ‘internal personnel disclosure’”).
111
regulatory enactment that employers are not free to disregard or
limit that right.” Sinatra v. Chico Unified School District, 119
Cal.App.4th 701, 706 (2004).
In the trial court, Rall did not identify any law that The
Times purportedly violated in deciding to stop publishing his
work. 18/A.A./5877; see 7/A.A./2041-2044. Now, he offers a new
theory: that The Times punished him for alleged political speech
– criticizing the LAPD – purportedly violating Labor Code
§§ 1101-1102. OB 57-59. As a threshold matter, this Court
should reject this argument because Rall did not raise it
previously. 420 Caregivers v. City of Los Angeles, 219
Cal.App.4th 1316, 1340 (2012).39
In any event, Rall’s new theory is baseless. Sections 1101
and 1102 only prohibit employers from punishing employees for
political activities that take place outside of their work. In
California Teachers Ass’n v. Governing Board, 45 Cal.App.4th
39 The underlying premise of Rall’s argument is

nonsensical. Rall admits that The Times published many pieces
critical of the LAPD. 3/A.A./684; see, e.g., 6/A.A./1185, 1304,
1305, 1317, 1319, 1321. The Times’ reporting often places it at
odds with police unions. E.g., LBPOA v. City of Long Beach, 59
Cal.4th 59 (2014); POST, 42 Cal.4th at 278; PPOA, 240
Cal.App.4th at 268; ALADS v. Los Angeles Times, 239
Cal.App.4th 808 (2015).
112
1383 (1996), the court held that these provisions do not apply to
teachers’ conduct during working hours, and upheld a school
district policy preventing employees from wearing political
buttons at work. The court explained that teachers “act with the
imprimatur of the school district which employs them,” and it is
impossible “to both permit instructors to engage in classroom
political advocacy and at the same time successfully dissociate
the school from such advocacy.” Id. at 1390.
California courts have refused to interpret Sections 1101
and 1102 in a manner that would permit employees to interfere
with the employer’s operations. E.g., Lockheed Aircraft v.
Superior Court, 28 Cal.2d 481, 486 (1946) (employer “engaged in
producing vital war materials” did not violate Section 1101 by
discharging employee who advocated overthrowing the
government).40
Accord Mitchell v. International Association of

40
Machinists, 196 Cal.App.2d 796, 819-20 (1961) (statutes apply “at

least where the political activity of the member is not patently in
conflict with the union’s best interests”); Smedley v. Capps,
Staples, Ward, Hastings and Dodson, 820 F.Supp. 1227, 1230 n.3
(N.D. Cal. 1993) (Mitchell strongly suggests employer may “curb
an employee’s advocacy of political views when the employee’s
political activities are patently in conflict with the employer’s
interests”).
113
These principles control here. Rall has no right to express
his political views on The Times’ website – and he has no right to
embellish or exaggerate accusations about a police officer’s
conduct to advance his political agenda. The Times, however, has
a constitutional right to control its news operations to protect the
integrity of its publications. See Eisenberg, 74 Cal.App.4th at
1391.
Ali, 112 Cal.App.4th 1477, does not support Rall’s claims.
There, a community affairs columnist for a monthly newspaper
was punished for critical statements about a politician, which he
made as a guest on a radio show unconnected to his work at the
newspaper. The newspaper did not claim that the statements
undermined its integrity and objectivity; thus, the court
distinguished Eisenberg, 74 Cal.App.4th at 1391, pointing out
that the termination involved outside political activity, and had
nothing to do with “the editorial policies or standards of the
newspaper ….” 112 Cal.App.4th at 1483, 1488. Here (like
Eisenberg, but unlike Ali ) Rall’s relationship with The Times
114
ended because his published work undermined its fundamental
interest in maintaining its journalistic integrity.41
Rall’s argument essentially is that the court should punish
The Times for refusing to publish a freelancer’s political
commentary, which Sections 1101 and 1102 do not support. A
wrongful termination claim “cannot be broader than the
constitutional provision or statute on which it depends.” City of
Moorpark v. Superior Court, 18 Cal.4th 1143, 1159 (1998). Rall’s
eleventh-hour argument should be rejected.
b. Rall’s “Contract” Claims Fail Because The

Times Did Not Waive Its Constitutional Right
Of Editorial Control.
Generally, absent proof of a contrary agreement or
limitation, an employee may be discharged at any time, with or
without notice, for any lawful reason. Guz v. Bechtel Nat’l, 24
Cal.4th 317, 335-336 (2000). Rall’s Fifth and Sixth Causes of
Action attempt to evade this clear right by alleging vaguely that
41The Times had the right to stop publishing Rall’s work if

he engaged in any activity that diminished The Times’ credibility.
Nelson, 936 P.2d at 1129 (“to protect the newspaper’s credibility,
Defendants may enforce the political neutrality of reporters”).
Although Rall’s purported “political activity” is not at issue here –
The Times stopped publishing Rall’s work because of accuracy
concerns – Sections 1101 and 1102 cannot be applied in a manner
that would violate The Times’ First Amendment rights.
115
he had some sort of unstated agreement that altered The Times’
undisputed right not to publish his work. 1/A.A./57-58; see
18/A.A./5875. Yet Rall offered no proof of any agreement –
because none existed. Instead, he claims that because The Times
published his cartoons, he “understood” that this relationship
would continue indefinitely. 3/A.A./681.
That failed to satisfy Rall’s heavy burden of establishing
that The Times waived its First Amendment right to control the
content of its newspaper. See City of Glendale v. George, 208
Cal.App.3d 1394 (1989) (“it is well established that courts closely
scrutinize waivers of constitutional rights, and ‘indulge every
reasonable presumption against a waiver’”; rejecting argument
that appellants had waived their constitutional rights by entering
into consent judgment); Eisenberg, 74 Cal.App.4th at 1386, 1389-
90 (employee bears burden of proving agreement altering at-will
relationship).42
Apparently recognizing that he cannot support the claim he
pled, Rall now alleges another new theory – that he should have
42 Accord Ferlauto, 74 Cal.App.4th at 1399-1400 (no waiver

where contract did not clearly limit First Amendment rights);
Integrated Healthcare Holdings, v. Fitzgibbons, 140 Cal.App.4th
515, 531-532 (2006) (same).
116
had “a fair opportunity to present his position” to The Times
before it ended their relationship. OB 60-61. This ignores that
The Times gave Rall ample opportunity to explain the
inconsistencies between his accounts and the LAPD’s records,
including a telephone conversation with The Times’ Op-Ed Page
Editor, Nicholas Goldberg, and several conversations with
reporter Paul Pringle. 1/A.A./270; 3/A.A./691-695. After hearing
Rall’s explanations, The Times concluded that there were
“serious questions” about Rall’s account. 3/A.A./696; see
1/A.A./66.
Rall’s new iteration of this claim should be rejected because
he failed to raise it previously. This Court should not consider it
now. 420 Caregivers, 219 Cal.App.4th at 1340.43
Even if Rall’s new theory is considered, his claim fails: The
Times and Rall did not agree on the new contractual obligations
43 Rall effectively is attempting to amend his complaint to

allege an entirely different “contract” than the one he pled.
Plaintiffs may not evade the SLAPP statute by amending a
complaint after a motion is filed. E.g., Simmons v. Allstate, 92
Cal.App.4th 1068, 1073 (2001) (“the anti-SLAPP statute makes
no provision for amending the complaint once the court finds the
requisite connection to First Amendment speech”); accord Sylmar
Air Conditioning v. Pueblo Contracting Svcs., 122 Cal.App.4th
1049, 1055-56 (2004); Schaffer v. County of San Francisco, 168
Cal.App.4th 992 (2008).
117
Rall tries to impose on The Times. Reciting catch-phrases like
“due process,” Rall asks this Court to create a series of steps that
The Times must take before it decides not to publish a
freelancer’s work. OB 60-61. Under the guise of a “contract”
claim, Rall insists that The Times was obligated to give him a
face-to-face meeting, presume that he is credible absent
“compelling evidence to the contrary”; and retain an expert to
assess his claims, among other things. OB 60-61.44 But there is
not a shred of evidence that The Times ever agreed to any of this.
1/A.A./271; see generally 3/A.A./681-720 (Rall’s declaration). The
trial court properly rejected Rall’s unsupportable contract claim.
1/A.A./57-58.
Rall’s claim for a purported implied-in-fact contract is
equally flawed. The Supreme Court has explained this requires
evidence showing “a ‘tendency in reason’ … to demonstrate the
44 Rall cites a few declarations from other cartoonists

reciting their predictions about what their employers would do
under similar circumstances. 3/A.A./735 (“I like to think
management would have …”); 3/A.A./740 (“I assume that my
prior management would have …”); 3/A.A./747 (opining, without
foundation, about what management might have done);
3/A.A./751 (same). None of these assertions are admissible
evidence of an agreement between Rall and The Times. See also
Section VI.
118
existence of an actual mutual understanding on particular terms
and conditions of employment.” Guz, 24 Cal.4th at 337. The
totality of the circumstances must be examined “to determine
whether the parties’ conduct, considered in the context of
surrounding circumstances, gave rise to an implied-in-fact
contract limiting the employer’s termination rights.” Id.
In Guz, the Court rejected plaintiff’s claim of an implied-in-
fact agreement that he could only be fired for cause. Id. at 341.
The Court held that plaintiff's length of service, “even where
marked with tangible indicia that the employer approves the
employee’s work,” could not overcome the presumption of an at-
will relationship. Id. at 341-42. Not every “vague combination of
Foley factors, shaken together in a bag, necessarily allows a
finding that the employee had a right to be discharged only for
good cause.... [¶] On the contrary, ‘courts seek to enforce the
actual understanding’ of the parties to an employment
agreement.” Id. at 337.
Rall has even less evidence than the plaintiff offered in
Guz. OB 61-62. He did not come close to proving an express or
implied promise for the amorphous “rights” he now asks this
Court to impose on The Times.
119
c. Rall’s Labor Code § 1050 Claim Was Properly
Stricken.
Rall’s claim under Labor Code § 1050 is essentially a
defamation claim, subject to the same defenses and constitutional
requirements. See Walker v. Boeing, 218 F.Supp.2d 1177, 1185
n.4, 1193-1194 (C.D. Cal. 2002). Accord O’Shea v. General Tel. ,
193 Cal.App.3d 1040, 1047-1049 (1987) (striking Section 1050
claim under Civil Code § 47(b)). This claim fails because Rall was
not an employee (Section 2), and because Rall’s defamation
claims fail (Section V.A).
This claim also fails because Rall did not allege, and cannot
prove, that any prospective employer was convinced not to hire
him because of The Times’ Articles. In Walker, for example,
plaintiff’s claims were rejected when he conceded that he had “no
idea whether Boeing ever communicated the allegedly low rating
to any potential employer.” 218 F.Supp.2d at 1194; see also Kelly
v. General Telephone, 136 Cal.App.3d 278, 289 (1982) (affirming
dismissal because plaintiff offered no evidence that
misrepresentation made to potential employer). No case has
allowed a Section 1050 claim without evidence that the former
employer communicated with a prospective employer in an
120
“attempt[] to prevent the former employee from obtaining
employment.” Labor Code § 1050.
Rall seeks to convert Section 1050 into a broad vehicle for
alleged defamation, allowing plaintiffs to recover treble damages
merely for showing alleged reputational harm. Labor Code §
1054. No authority supports this wholesale rewriting of the law.
Because Rall’s conclusory declaration (3/A.A./716) did not meet
his burden under Section 1050, the trial court properly rejected
this claim.
VI. THE TRIAL COURT SHOULD HAVE SUSTAINED

RESPONDENTS’ EVIDENTIARY OBJECTIONS
The trial court did not rule on Respondents’ evidentiary
objections. 18/A.A./5920-5933; 13/A.A./4008. To demonstrate a
probability of prevailing, Rall must “establish evidentiary
support for [his] claim.” Navellier v. Sletten, 106 Cal.App.4th
763, 776 (2003). He cannot simply rely on his pleadings, but
must produce competent, admissible evidence “to sustain a
favorable judgment if … credited.” Taus v. Loftus, 40 Cal.4th
683, 713-714 (2007).
Rall largely relied on hearsay, improper opinion, legal
conclusions, and speculative claims lacking foundation.
121
13/A.A.4008-4066. Respondents’ objections to this inadmissible
evidence should have been sustained.
VII. CONCLUSION
For the foregoing reasons, Respondents respectfully request
that this Court affirm the trial court’s decisions granting their
SLAPP Motions and striking the Complaint.
Dated: June 21, 2018 DAVIS WRIGHT TREMAINE LLP

KELLI L. SAGER
ROCHELLE WILCOX
DAN LAIDMAN
DIANA PALACIOS
LOS ANGELES TIMES

COMMUNICATIONS LLC
JEFF GLASSER
By:/s/ Kelli L. Sager

Kelli L. Sager
Attorneys for Defendants/
Respondents AUSTIN BEUTNER,
NICHOLAS GOLDBERG, PAUL
PRINGLE, DEIRDRE EDGAR,
TRONC INC. (F/K/A TRIBUNE
PUBLISHING COMPANY), LOS
ANGELES TIMES
COMMUNICATIONS LLC,
TRIBUNE 365 LLC, and TRIBUNE
INTERACTIVE, LLC
122
CERTIFICATE OF WORD COUNT
Pursuant to California Rule of Court 8.204(c), the text of
this brief, including footnotes and excluding the caption page,
table of contents, table of authorities, certificate of interested
entities or persons, the signature blocks and this Certificate,
consists of 19,534 words in 13-point Century type as counted by
the Microsoft Word word-processing program used to generate
the text.
Dated: June 21, 2018 DAVIS WRIGHT TREMAINE LLP

KELLI L. SAGER
ROCHELLE WILCOX
DAN LAIDMAN
DIANA PALACIOS
LOS ANGELES TIMES

COMMUNICATIONS LLC
JEFF GLASSER
By:/s/ Dan Laidman

Dan Laidman
Attorneys for Defendants/
Respondents AUSTIN
BEUTNER, NICHOLAS
GOLDBERG, PAUL PRINGLE,
DEIRDRE EDGAR, TRONC
INC. (F/K/A TRIBUNE
PUBLISHING COMPANY),
LOS ANGELES TIMES
COMMUNICATIONS LLC,
TRIBUNE 365 LLC, and
TRIBUNE INTERACTIVE, LLC
123
PROOF OF SERVICE
I am employed in the City and County of Los Angeles, State of

California. I am over the age of 18 and not a party to the within action.
My business address is DAVIS WRIGHT TREMAINE LLP, 865
South Figueroa Street, Suite 2400, Los Angeles, CA 90017.
On June 21, 2018, I hereby certify that I electronically filed

the foregoing RESPONDENTS' BRIEF through the Court's
electronic filing system, TrueFiling.
I certify that participants in the case who are registered

TrueFiling users will be served via the electronic filing system
pursuant to California Rules of Court, Rule 8.70.
**SEE ATTACHED SERVICE LIST**
I further certify that participants in the case who are not

registered TrueFiling users are served by mailing the foregoing
document by First-Class Mail, postage prepaid, to the following non-
TrueFiling participants:
Clerk for the Hon. Joseph R. Kalin LASC Case No.

Superior Court, County of Los Angeles BC613703
111 North Hill Street
Los Angeles, CA 90012-3014
I placed such envelope(s) with postage thereon fully prepaid for

deposit in the United States Mail in accordance with the office practice of
Davis Wright Tremaine LLP, for collecting and processing correspondence
for mailing with the United States Postal Service. I am familiar with the
office practice of Davis Wright Tremaine LLP, for collecting and processing
correspondence for mailing with the United States Postal Service, which
practice is that when correspondence is deposited with the Davis Wright
Tremaine LLP, personnel responsible for delivering c01Tespondence to the
United States Postal Service, such correspondence is delivered to the United
States Postal Service that same day in the ordinary course of business.
Executed on June 21, 2018, at Los Angeles, California.
I declare under penalty of perjury, under the laws of the

State of California, that the foregoing is true and correct.
Ellen Duncan
Print Name Signature
DAVIS \VRIGHT TREMAINE J,LP
PROOF OF SER VICE LOS ANGELES, CALIFORNIA 900 17-2566
4817-0455-6395v. l 0026175-000486 (213) 633-6800
Fax: (213) 633-6899
SERVICE LIST
Roger A. Lowenstein, Esq. Attorneys for

1949 Coldwater Canyon Drive Plaintiff and Appellant
Beverly Hills, CA 90210 Frederick Theodore Rall, III
Tel: (213) 705-9153
Fax: (213) 381-8489
Email: rlowenstein@laleadership.org
Jeffrey Lewis, Esq. Attorneys for

609 Deep Valley Drive, Suite 200 Plaintiff and Appellant
Rolling Hills Estates, CA 90274 Frederick Theodore Rall, III
Tel: (310) 935-4001
Fax: (310) 872-5389
Email: Jeff@)JeftLewisLaw.com
2 DAVIS \VRJGHT TREMAINE LLP

PROOF OF SERVICE LOS ANGELES, CALIFORNJA 90017-2566
(213) 633-6800
(213) 633-6899
4817-0455-6395v. I 0026175-000486

LA Times' Respondents Brief For anti-SLAPP Motion in Ted Rall v. Ted Rall Et Al.

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LA Times' Respondents Brief For anti-SLAPP Motion in Ted Rall v. Ted Rall Et Al.

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CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Pursuant to California Rule of Court 8.208, Defendants and

Respondents Austin Beutner, Nicholas Goldberg, Paul Pringle,

Deirdre Edgar, tronc, Inc. (f/k/a Tribune Publishing Company),

Tribune 365 LLC, Los Angeles Times Communications LLC, and

Tribune Interactive, LLC (collectively “Respondents”), hereby

Los Angeles Times Communications LLC is wholly owned

by NantMedia Holdings, LLC.

Tribune 365 LLC and Tribune Interactive, LLC are wholly

owned by tronc, Inc. (f/k/a Tribune Publishing Company), which

is publicly traded. Merrick Venture Management Holdings, LLC

and California Capital Equity, LLC own 10 percent or more of

tronc, Inc.’s stock.

I. SUMMARY OF ARGUMENT ....................................................... 19

II. FACTUAL & PROCEDURAL BACKGROUND .......................... 24

A. The Parties. ............................................................................ 24

B. Rall’s Freelancing For The Times......................................... 24

C. Rall’s Blog Post. .................................................................... 26

D. The Lawsuit ........................................................................... 29

III. STANDARD OF REVIEW ............................................................. 30

IV. THE SLAPP STATUTE APPLIES TO RALL’S CLAIMS ........... 31

A. Rall’s Claims Arise From The Times’ Conduct In

1. The Times’ Decision Not To Publish Rall’s

2. Rall Conflates The First And Second Prongs Of

B. Rall’s Claims Arise In Connection With An Issue Of

1. The Public Interest Requirement Must Be

2. Rall’s Narrow Test Is Contrary To California

3. The Times’ Conduct Was Connected To

V. RALL DID NOT DEMONSTRATE A PROBABILITY OF

A. Rall’s Content Claims Were Properly Stricken. ................... 50

3 DAVIS WRIGHT TREMAINE LLP

a. The Fair Report Privilege Applies To

b. Rall’s Attempts To Evade The Fair

c. The Privilege Applies To The Articles

2. Rall Failed To Demonstrate That Any Of The

a. Rall Did Not Show That Any Statements

b. Subjective Expression In The Articles Is

3. Rall Failed To Comply With The Retraction

4. Actual Malice Is Irrelevant At This Stage. ................ 93

5. Rall Abandoned His Duplicative Emotional

B. Rall’s Publication Claims Were Properly Stricken. .............. 95

1. The First Amendment Protects The Times’

2. Rall’s Publication Claims Fail Because He Was

3. Rall’s Publication Claims Fail For Other

a. Rall’s Wrongful Termination Claim Was

4 DAVIS WRIGHT TREMAINE LLP

c. Rall’s Labor Code § 1050 Claim Was

VI. THE TRIAL COURT SHOULD HAVE SUSTAINED

VII. CONCLUSION .............................................................................. 122

5 DAVIS WRIGHT TREMAINE LLP

420 Caregivers v. City of Los Angeles,

ALADS v. Los Angeles Times,

Ali v. L.A. Focus Publication,

Ampersand Publ’g v. NLRB,

Arnold v. Mutual of Omaha,

Associated Press v. NLRB,

Balzaga v. Fox News,

Barry v. State Bar of California,

Beaumont-Jacques v. Farmers Group,

Bel Air Internet v. Morales,

6 DAVIS WRIGHT TREMAINE LLP

Berkeley Police Ass’ v. City of Berkeley,

Blatty v. New York Times,