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TABLE OF CONTENTS

TABLE OF CONTENTS ...................................................................2


TABLE OF AUTHORITIES .............................................................5
I. Introduction ..........................................................................8

II. Respondents Did not and Cannot Satisfy the First


Prong of the Anti-SLAPP Analysis Due to the
Holdings in Nam, Wilson and Park.................................. 14

A. Taking A Closer Look at Respondents’ Tornillo


Claim .......................................................................... 14

B. Respondents Cannot Satisfy the First Prong of


the Anti-SLAPP Analysis Because Wilson is on
All Fours ..................................................................... 17

III. Rall met his Burden of Proving the Minimal Merit


of his Employment Claims Under the Second Prong
of the anti-SLAPP Analysis .............................................. 21

A. Rall Must be Assumed to be an Employee for


Purposes of an Anti-SLAPP Motion and this
Appeal ......................................................................... 22

B. Rall Easily Established a Probability of


Prevailing on his Employment Claims under
the Second Prong of the Anti-SLAPP Analysis ........ 27

C. Due Process is not a “Catch Phrase” – It is a


Basis for Proceeding on Rall’s Breach of
Contract Claim and Overcoming the
Presumption of At-Will Employment ....................... 28

IV. Rall Also met his Burden of Proving the Minimal


Merit of his Defamation Claims Under the Second
Prong of the anti-SLAPP Analysis ................................... 30

2
A. The Defamatory Articles were not True and
Fair Reporting of an Official Proceeding .................. 30

1. The Public Policy Justification for Section


47(d) Absolute Immunity is the Public’s
Need to Effectively Oversee the Conduct of
Police .................................................................... 31
2. Disputed Facts as to the Applicability of
Section 47(d) Require Jury Resolution, and
Denial of the Anti-SLAPP Motion ...................... 33
3. The Totality of the Circumstances Test
Requires a Factual Resolution ............................ 34
4. Most of the Defamatory Statements were
Conclusions Drawn from The Times’
Private Investigation, 14 Years after the
Jaywalking Ticket ............................................... 36
5. Neither the Jaywalking Ticket nor the
LAPD File of Rall’s Complaint is an
“Official Proceeding” ............................................ 43
B. Rall Established a Prima Facie Case that the
False Statements were Fact not Opinion ................. 46

C. Rall Met his Burden of Proving that the Times’


Statements were Materially False and
Defamatory ................................................................. 49

D. Rall Met his Burden of Proving that Third


Parties Read and Understood that the
Defamatory Statements Referred to Rall and
Accused him of Fabrication ....................................... 51

E. Rall Met his Burden of Proving that the Times’


Statements were Materially False and
Defamatory ................................................................. 54

3
F. Rall’s September 4, 2015 Demand for a
Retraction of the Article Complied with Civil
Code, Section 48a ....................................................... 55

G. Rall was not a Limited Purpose Figure and


Respondents Concede that Rall Was Not
Required to Prove Respondents’ Actions Were
Motivated by Malice .................................................. 59

H. Even if this Court Concluded that Rall was a


Limited Purpose Figure he Proved
Respondents’ Actions Were Motivated by
Malice ......................................................................... 59

V. The Times Has Abandoned its Evidentiary


Objections Argument......................................................... 60

CONCLUSION ............................................................................... 62
CERTIFICATE OF WORD COUNT ............................................. 63

4
TABLE OF AUTHORITIES

Cases
Ali v. L.A. Focus Publication et al.
(2003) 112 Cal.App.4th 1477 ..................................................... 27
Balzaga v. Fox News Network, LLC
(2009), 173 Cal.App.4th 1325 .................................................... 35
Dickinson v. Cosby
(2017) 17 Cal.App.5th 655 ......................................................... 54
Equilon Enterprises, LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53 ................................................................... 21
Grillo v. Smith
(1983) 144 Cal.App.3d 868 ......................................................... 31
Handelsman v. San Francisco Chronicle
(1970) 11 Cal.App.3d 381 ........................................................... 34
Hardin v. PDX, Inc.
(2014) 227 Cal. App. 4th 159 ..................................................... 34
Hawran v. Hixon
(2012) 209 Cal.App.4th 256 ....................................................... 42
Imig v. Ferrar
(1977) 70 Cal.App.3d 48 ............................................................. 45
Jennings v. Telegram-Tribune Co.
(1985) 164 Cal.App.3d 119 ......................................................... 31
Jennings v. Telegram–Tribune Co.
(1985) 164 Cal.App.3d 119 ......................................................... 34
J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP
(2016) 247 Cal.App.4th 87 ................................................... 34, 36
Kapellas v. Kofman
(1969) 1 Cal.3d 20 ................................................................. 56, 57
McClatchy Newspapers Inc. v. Superior Court of Fresno
(1987) 189 Cal.App.3d 961 ............................................. 32, 33, 43

5
Miami Herald v. Tornillo
(1974) 418 U.S. 241 .................................................................... 16
Moldea v. New York Times
(D.D.C. 1992) 22 F.3d 310 .................................................... 47, 48
Nam v. Regents of the University of California
(2016) 1 Cal.App.5th 1176 ......................................................... 14
Navellier v. Sletten
(2002) 29 Cal.4th 82 ............................................................. 22, 23
New York Times Co. v. Sullivan
(1964) 376 U.S. 254 .................................................................... 12
Okorie v. Los Angeles Unified School Dist.
(2017) 14 Cal.App.5th 574 ......................................................... 61
Park v. Board of Trustees
(2017) 2 Cal.5th 1057 ........................................................... 14, 21
Passaic Daily News v. NLRB
(D.C.Cir.1984) 736 F.2d 1543 .................................................... 15
Pierce v. San Jose Mercury News
(1989) 214 Cal.App.3d 1626 ....................................................... 34
S.G. Borello & Sons, Inc. v. Department of Industrial Relations
(1989) 48 Cal.3d 341 ............................................................. 25, 26
Tieberg v. Unemployment Ins. Brd.
(1970) 2 Cal.3d 943 ..................................................................... 25
Wilson v. Cable News Network, Inc.
(2016) 6 Cal.App.5th 1 ......................................................... 14, 17

Statutes
Civil Code, section 47............................................................... 43, 45
Civil Code, Section 48 .................................................................... 55
Labor Code, section 2750.5 ............................................................ 26
Labor Code, section 3202 ............................................................... 26

6
Labor Code, section 3357 ............................................................... 26

Other Authorities
Bernt, “Wrongful Discharge of Independent Contractors: A
Source-Derivative Approach to Deciding Who May Bring a
Claim for Violation of Public Policy” (2000) 19 Yale Law and
Policy Review 39 ......................................................................... 27
Herald News
(1985) 276 NLRB 605 ................................................................. 16
Note, When Truth and Accuracy Diverge: The Fair Report of a
Dated Proceeding (1982) 34 Stan.L.Rev. 1041 .......................... 32

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No. B284566

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


SECOND APPELLATE DISTRICT, DIVISION 8

FREDERICK THEODORE RALL, III,


Plaintiff and Appellant,

v.

TRIBUNE COMPANY, et al,


Defendants and Respondents.

Proceedings of the Los Angeles County Superior Court


Case No. BC613703 · Hon. Joseph R. Kalin, Judge Presiding

APPELLANT’S REPLY BRIEF

I. Introduction
In their attempt to abuse the anti-SLAPP law to avoid
justice, respondents are confronted with two problems: the facts
and the law. Let’s begin with the facts. Ted Rall was hired in
2009 as staff cartoonist for the LA Times. He appeared as staff on
the LA Times website, had a supervisor, clearly defined work
constraints, and maintained all other trappings of steady

8
employment, including being sent on assignment to draw
cartoons from Afghanistan in 2010.
In July 2015, he was asked by his supervising editor to
address an issue raised by a Times column criticizing a LAPD
effort to crack down on jaywalkers. Rall complied by drawing a
cartoon and writing a latimes.com blog post in which he described
an incident 14 years earlier in which he was arrested for
jaywalking. In this incident, Rall was handcuffed and treated
with such unnecessary force that bystanders complained to the
arresting officer.
Shortly after the 2001 incident, Rall filed a formal
complaint with the police but the matter was dismissed without
any investigation or official proceeding.
After publication of Rall’s cartoon and blog in 2015, Chief
Charlie Beck personally met with Austin Beutner, then publisher
of the LA Times, and complained of Rall’s anti-police attitude. He
presented the publisher with copies of the 14-year-old police file,
including a purported audio recording of the encounter, and
asserted that Rall had fabricated the incident.
Ignoring its own published Ethical Guidelines, the Times
conducted its own cursory “investigation” and fired Rall without
ever conducting a face-to-face interview, or interviewing his co-
workers or supervisors, or submitting the issue to the Editorial
Board, or authenticating the materials provided with a neutral

9
expert party. The Times then published a prominent “Note to
Readers” which declared that in order to protect the journalistic
integrity of the newspaper, Rall was being fired for suspected
fabrication. The Times claimed that it had uncovered no evidence
that Rall had been handcuffed or that persons on the street
gathered in his support. During the Times’ “investigation,” Rall
had tried to defend himself by asserting the accuracy of his blog
and offering to take a lie detector test at his own expense. This
offer was ignored.
After being fired under these egregious conditions, Rall
undertook his own investigation to clear his name and prove he
was telling the truth about the encounter. He hired an audio
company to provide the Times with an enhanced (cleaned up to
remove background noise) version of the arresting officer’s
purported audio recording.
The enhanced version clearly showed that he had been
handcuffed and that bystanders had complained, corroborating
his original story. A woman can be heard asking “Why’d you
handcuff him?” and another woman asks, “So he’s detaining
him?” A third voice is particularly prominent: “He was just
jaywalking! You need to take off . . . take off his handcuffs!”
Again the Times ignored Rall’s efforts.
After receiving this enhanced audio with transcript, the
Times brazenly ignored the clear evidence provided and

10
published a second article, in which they attempted to discredit
Rall and doubled down on their false claims surrounding his
firing. Again, the Times ignored its Ethical Guidelines by failing
to interview Rall in person.
Fabrication is the worst allegation that can be made
against a journalist. It ends careers. It has left Rall’s career, and
life, in shambles. And at this point in the case in advance of
discovery and in accordance with the anti-SLAPP statute, Rall is
entitled to the assumption that in doubling down on his firing
despite proof of the accuracy of his account, the Times acted in
reckless disregard for the truth.
Now let’s turn to the law. Legal analysis begins with the
following assumption: The Times and its agents maliciously
destroyed the career of one of its own. In defense, they must now
show that Rall’s devastation is an unfortunate but necessary
sacrifice on the altar of press freedom. So, for example, to defeat
Rall’s employment claims the Times has to argue that a
newspaper has an absolute right to retaliate or discriminate
against any employee who produces content; that despite the fact
that discovery has yet to determine who made the decision to fire
Rall and under what circumstances, Rall’s firing was a
“communicative act” inherently protected by the First
Amendment; and that Rall, despite the control exercised by the
editorial staff over his work product, is an independent

11
contractor, not an employee. To defeat the defamation claim they
argue that the defamatory articles were simply reports of an
official proceeding, and therefore absolutely privileged, despite
the showing of malice and their own intervening private
investigation; that the articles were protected “opinion”; that
somehow Rall didn’t ask for a retraction in specificity; and on and
on. One “privilege” roadblock after another.
Just to be clear, and at the risk of repetition, if Rall was in
fact handcuffed by the arresting officer in front of protesting
bystanders, then there was no basis for his firing and more
importantly, no basis for destruction of his reputation by falsely
accusing Rall of fabrication. At this stage of the case the Court
must assume these to be the facts.
It is true that there are some torts for which the law does
not provide a remedy. They are few and far between. Group libel
is one such example. But even Chief Sullivan had a remedy
against the New York Times; he simply had to show a reckless
disregard for the truth. And unlike Rall, Sullivan was an elected
public official who was deemed to have access to the media in
order to defend himself against inaccurate reporting. Historical
context is important. In New York Times Co. v. Sullivan (1964)
376 U.S. 254, the formerly state tort law of defamation was
dragged whole hog into the First Amendment because people
were dying in Mississippi and Alabama. The spotlight of the New

12
York Times was literally saving lives in the South at a time when
federal law enforcement was reluctant to intervene. Massive
defamation verdicts threatened to extinguish that spotlight. Now
consider the context of this case. Grassroots organizers, activists
and whistleblowers were being sued by corporate bullies in
expensive and meritless lawsuits, in order to deplete the
defendants’ limited resources and tie them up in court. Like the
New York Times, the activists and whistleblowers were
vulnerable private actors who were shining a critical spotlight on
wrongdoing. The legislature intervened and provided, in the form
of the anti-SLAPP law, what it hoped would be an inexpensive
and efficient remedy. Beware of unintended consequences! Fast
forward to this case: a corporate bully uses the anti-SLAPP law
to silence and crush its most acerbic social commentator, all in
the name of protecting press freedoms. 1 Understandably,
California courts have observed the rise in anti-SLAPP abuse and
so have narrowed the statute’s application, particularly in the
arena of employment. See, for example, the trilogy of recent
cases, beginning with Nam v. Regents of the University of
California (2016) 1 Cal.App.5th 1176, continuing with Wilson v.
Cable News Network, Inc. (2016) 6 Cal.App.5th 1, and

1Intimes of political turmoil the political cartoonist is


particularly vulnerable. If the pen is mightier than the sword,
then the cartoonist sits at the point of the pen.

13
culminating with Park v. Board of Trustees (2017) 2 Cal.5th 1057
in which the California Supreme Court clarified that a singular
employment decision, even if resulting from or evidenced by
written or spoken material is not a “communicative act” arising
out of protected First Amendment activity. 2

II. Respondents Did not and Cannot Satisfy the First


Prong of the Anti-SLAPP Analysis Due to the
Holdings in Nam, Wilson and Park

A. Taking A Closer Look at Respondents’ Tornillo Claim


In order to distinguish and defend against the dramatic
impact of Nam-Wilson-Park, Respondents have to convince this
Court, as it did the court below, that Rall was not fired. The
Times simply chose not to publish any more of his cartoons, and
therefore the plaintiff’s employment termination claims need to
be re-named the “publication” claims! That is like claiming that
James Comey wasn’t really fired as FBI director; the President
simply didn’t want to publish any more of his reports.

2 Park was decided at a time when appellant was representing


himself before the trial court. He was unaware of the decision.
Respondents failed to inform the court of the decision, even
though it is likely determinative of the issues regarding
appellant’s employment termination. This lapse is the partial
basis for appellant’s request to deny attorneys’ fees in the appeal
from the $356,768.00 judgment granted respondents (B287721).

14
Respondents see this case in stark black-and-white terms.
According to them, their asserted “publication” privilege must
prevail, or freedom of the press will be irreparably damaged. The
truth is far more nuanced. Press freedoms can be guaranteed
alongside vindication of Ted Rall’s right not to be arbitrarily fired
and defamed. The concepts are not mutually exclusive. In fact,
vindication of Rall’s rights will make the Los Angeles Times a
better newspaper. The rules of defamation describe the necessary
outer limits of press freedom; termination as a violation of public
policy will force the employer to examine its conduct through the
prism of professional ethics and call upon the Times to adhere to
its own Ethical Guidelines, published one year before Rall’s
termination and which were recklessly disregarded in these
proceedings. It is a balancing test, weighing the Times’ right to
fire at will and publish a false explanation, against an employee’s
reasonable protection against arbitrary management decisions
and damage to reputation. Obviously the First Amendment role
of the employer makes the balancing more challenging, but
hardly impossible.
Let’s take a closer look at that balancing process.
Respondents don’t acknowledge the issues raised by Passaic
Daily News v. NLRB (D.C.Cir.1984) 736 F.2d 1543, relegating its
mention only to a footnote and denying that the case had
anything to do with the First Amendment. (RB, 100.) That case,

15
however, provides important guidance. A columnist was fired on
a pretext; the real reason was union activity. The columnist sued
and was ordered reinstated. As here, relying on Miami Herald v.
Tornillo (1974) 418 U.S. 241, the newspaper denied
reinstatement by arguing that it had an absolute privilege to
refuse to publish the columnist’s work. The court agreed, but
nevertheless ordered reinstatement. The appropriate remedy was
to balance both rights. The reinstatement order declared:
“Restore Mitchell Stoddard immediately to the column-writing
duties he enjoyed prior to his demotion and decide whether to
publish his submissions based on any factors other than his
union or protected activity; provided that nothing in this Order
shall be interpreted as a requirement that the Respondent
publish any of the columns submitted by Stoddard.” (Herald
News (1985) 276 NLRB 605, 606.) In this case no cleverly crafted
order is necessary. Rall is suing for damages, not reinstatement.
But the point is identical: a media defendant cannot use its
Tornillo privilege to discriminate or retaliate against an
employee. The absurdity of the defense position should be
apparent. Why should employees of media companies have to
give up employment rights that are routinely granted to
employees of non-media companies? The short answer is that
they shouldn’t.

16
B. Respondents Cannot Satisfy the First Prong of the
Anti-SLAPP Analysis Because Wilson is on All Fours
The middle case of the employment rights trilogy
mentioned above is Wilson v. Cable News Network, Inc., supra, 6
Cal.App.5th at 822. No reported anti-SLAPP opinion is closer
than Wilson to the facts presented by this case:
• Wilson was a CNN reporter who had published 200 articles
under his by-line in the electronic version of CNN,
CNN.com. In addition to his cartoons, Rall was a regular
blog writer for the electronic version of the L.A. Times,
LATimes.com — and it is Rall’s blog, not his cartoons, that
is at issue.
• Wilson was fired for alleged plagiarism, but he believed the
real reason was race and age discrimination and
retaliation. Rall was fired for alleged fabrication, but he
believes the real reason was retaliation by proxy — to curry
favor with the chief of police, a political ally of the
publisher.
• Both Wilson and Rall were defamed during the
employment termination process.
• Both Wilson and Rall were at-will employees working
without a contract.
• Both Wilson and Rall wrote about issues of public interest
and importance, and their allegedly plagiarized or

17
fabricated articles addressed an issue of public importance
in the criminal justice arena (in Wilson’s case, the legal
problems of Sheriff Baca; in Rall’s, police overreaction to
jaywalking). Nevertheless, neither Wilson’s nor Rall’s firing
is a matter of public interest or importance, nor does it
arise out of First Amendment activity. The fact that both
Wilson and Rall have by-lines and Rall signs his cartoons
does not transform private persons to public figures. As
pointed out in Rall’s opening brief, even “famous”
cartoonists like the creator of Garfield are unknown to the
general public.
Accordingly, neither defendant in Wilson or Rall has
satisfied the first prong of the anti-SLAPP statute; the motions
should not have been granted.
The Respondents’ effort to distinguish Wilson as
“inconsistent with California law” 3 is misplaced. They argue that
because Wilson claimed he suffered discrimination prior to the
allegations of plagiarism, only that prior conduct was held to be
unprotected by the SLAPP statute. This is an absurd twist of
language. The issue, as in this case, and in Nam and Park, is the
decision to terminate employment. In the Nam-Wilson-Park
trilogy, the plaintiffs asserted that the decision to terminate was
tainted by discrimination and/or retaliation. Without the benefit

3 RB p.39.

18
of discovery in this case, much of the decision to fire Rall is
shrouded in mystery, but this much we know: Chief Beck was
offended by plaintiff’s blog and complained in person to the
publisher. The chief gave the publisher a copy of a police file
obtained outside official LAPD channels that the Chief alleged
proved fabrication.
Because Rall had repeatedly mocked the LAPD and Beck
personally in his cartoons, Beck was a highly biased source.

Figure 2 – 5AA 1075

The Times knew this. Given that Beck had a personal axe to
grind against Rall, and that Beck’s tenure as chief was marred by
scandals, the Times knew readers would look askance if Beck
were named as the source. This may be why the Times violated
its own Ethical Guidelines by improperly protecting Beck as an
anonymous source in both the Note and the Article.

19
The publisher initiated an “investigation” that failed to
confirm the allegation. Moreover, plaintiff provided an enhanced
audio recording that vindicated the account described in his blog.
Despite this, plaintiff was fired and defamed. With regard to the
publisher’s motivation in accommodating the Chief of Police, we
know that the publisher violated the Los Angeles Times’ Ethical
Guidelines by accepting an award from the Los Angeles Police
Protective League, and that the police pension fund was a major
investor in the corporate owners of the Los Angeles Times.
Obviously, Wilson, Nam and Park (and Rall) will have to prove
the unlawfulness of their firing at trial, and their burden is
greater than what is needed to defeat an anti-SLAPP motion. At
this point, however, Rall should be permitted to utilize the tools
of discovery to flesh out his case.
The Wilson opinion is currently before the Supreme Court.
(Wilson v. Cable News Network, Inc. (2017) 214 Cal.Rptr.3d 290.)
The issue the Court is interested in clarifying, subsequent to
Park, is the relevance of the defendant’s discriminatory or
retaliatory motive. Prior cases have held that in the SLAPP
context, plaintiff’s motivation in bringing suit is irrelevant. That
is, the defendant does not have to prove an intent by plaintiff to
chill First Amendment activities so long as that is the effect of
the suit. (Equilon Enterprises, LLC v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 58-59.) Some defendants in SLAPP cases

20
have tried to expand that holding to argue that defendant’s
motivation is likewise irrelevant. The consequences of such an
expansion would destroy almost all employment claims. As held
in Park, citing Nam with approval:
Any employer who initiates an investigation of an
employee, whether for lawful or unlawful motives,
would be at liberty to claim that its conduct was
protected and thereby shift the burden of proof to the
employee who, without the benefit of discovery and
with the threat of attorney fees looming, would be
obligated to demonstrate the likelihood of prevailing
on the merits.

(Park v. Board of Trustees (2017) 2 Cal.5th 1057, 1066-67.)


The Wilson opinion’s careful distinction of defendant and
plaintiff’s motivation in the SLAPP/employment context makes
good sense, and will no doubt be upheld by the Supreme Court.
What if, however, the Supreme Court reverses Wilson?

III. Rall met his Burden of Proving the Minimal Merit of


his Employment Claims Under the Second Prong of
the anti-SLAPP Analysis
If the Supreme Court were to reverse Wilson, or if this
Court were to conclude that this case does in fact arise out of the
First Amendment and/or that Rall is a public figure, the anti-
SLAPP motion is nevertheless defeated if plaintiff can show that
his claim has “minimal merit” under the second prong of the anti-

21
SLAPP analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) A
showing of minimal merit is not a high bar. To defeat the second
prong, therefore, defendants have to reach into their bag of
privileges and find some that absolutely bar plaintiff no matter
how egregious the facts. Appellant has two kinds of claims –
employment termination and defamation. To defeat the
employment claims respondents assert that this Court should
find, de novo, that plaintiff was an independent contractor with
no rights; to defeat the defamation claims respondents allege that
the two libelous articles were absolutely privileged as “true and
fair” reporting about a jaywalking ticket, or a police investigation
of a complaint about that ticket, or the Times’ private
investigation of appellant’s blog about the ticket; or, if not so
privileged, the articles were simply non-actionable opinion as a
matter of law. We start with the employment issue.

A. Rall Must be Assumed to be an Employee for


Purposes of an Anti-SLAPP Motion and this Appeal
In evaluating Rall’s evidence, under the second prong of the
anti-SLAPP law, all of Rall’s evidence is to be believed, including
his contention that he was an employee. (Navellier v. Sletten,
supra, 29 Cal.4th at 89.) Because Respondents’ brief misstates
the facts in order to argue that Rall was an independent

22
contractor, a summary of Rall’s working scenario at the Los
Angeles Times is in order.
In 2009, Rall applied to the Times and was hired to fill a
vacancy for the position of staff cartoonist. (3AA 680.) Previously
the Times had published Rall’s work through his syndication
efforts. (3AA 680.) Once hired as staff cartoonist, Rall was
identified as “staff” on the Times’ website. (3AA 680-81.) As staff
cartoonist Rall’s regular work was limited to local Los Angeles
and California politics, current events and culture. (3AA 681.)
Rall supplied a weekly cartoon under the supervision of the
Opinion Editor. (3AA 680.) That supervision included
“sizing/dimensions, resolution (300 dpi), file format (TIFF),
whether the cartoon would appear in black-and-white or in color,
etc.” (3AA 680.) To submit cartoons as staff cartoonist, Rall had
to change his lettering style so as to be more legible in the Times’
print edition. (3AA 680.) Rall was given a deadline of 3 P.M. the
day before publication. (3AA 680.) Most importantly, the Times
editors controlled the subject matter of the cartoon; they
suggested and assigned topics, and often rejected submissions by
Rall that didn’t meet their needs. (3AA 681.) Rall was assigned
Assistant Op-Ed Editor Cherry Gee as his immediate supervisor.
(3AA 680.) His working routine with Gee was described by Rall in
his detailed declaration:
Each week I submitted rough sketches of two possible
cartoon ideas to Gee. Gee would either approve one,

23
or reject both and request a third. I could not submit
any artwork without Gee’s approval. In addition, Gee
would suggest changes to words and images I
submitted. After discussing these edits and coming to
an agreement, I would either submit an additional
final rough sketch or draw the final artwork and
email it to her.

(3AA 681.)

The very cartoon that accompanied the blog at issue in this


case was suggested by a prior Times column by Steve Lopez
criticizing the police department’s “crackdown” on jaywalking.
3AA 688. Rall continues:
Between 2009 and 2015, my cartoons were drawn
exclusively for the Los Angeles Times. I was required
to make myself available during the “9 to 5” hours in
case the Times needed to reach me. . . .[A]t the end of
each year the Times published a large round-up
overview of my best cartoons of the previous year.
(3AA 681.)
Rall did not submit invoices; payment came automatically
every week. The Times thought so highly of his work that they
sent him on assignment to Afghanistan in 2010. Although Rall
was paid per cartoon and per blog, in 2011 he also received a
year-end bonus payment from excess funds in the Opinion
budget. (3AA 682-83.)
These facts, when assumed true for purposes of an anti-
SLAPP motion, establish Rall’s status as an employee. It is often

24
the case that a person’s employment reflects elements of both
employee and independent contractor. In California, courts look
primarily to the issue of control. (S.G. Borello & Sons, Inc. v.
Department of Industrial Relations (1989) 48 Cal.3d 341.) Finders
of fact will look at the means by which the worker fulfills his
contract, and the overall control of the product by supervision.
While it is no doubt true, as described above, that Rall had to
adjust his technique in order to accommodate the technical
requirements of the Times’ printing presses, the larger picture is
that Rall was part of a team that produced the entire Op-Ed page
of the newspaper. The editor retained the control at all times to
make sure the subject matter of the cartoon, and the message, fit
well within that day’s overall editorial schema. Consider the
California Supreme Court case in Tieberg v. Unemployment Ins.
Brd. (1970) 2 Cal.3d 943, involving freelance writers for the
Lassie TV show. There the producers, exactly like Rall’s editors
here, controlled the work product by suggesting stories and
themes and editing the work product when it didn’t meet their
standards. The producers of Lassie, as with the editors here,
knew exactly what direction their storytelling should take and
retained total authority to reject or change whatever the
freelance writer submitted. The holding in Tieberg reflects the
California legislative presumption that all workers are

25
employees, (Labor Code sections 2750.5 and 3357, and that this
presumption should be liberally construed. (Lab. Code § 3202.)
Respondents attempt to distinguish Tieberg by pointing out
that freelance television writers are covered by a Writers Guild
contract that refers to writers as “employees.” (RB 108.) If that is
the critical factor, then the Times’ labeling of Rall as “staff” is
determinative. Labeling is one thing, but control is the critical
issue, and this case is on all fours with Tieberg. (See also S.G.
Borello & Sons, Inc. v. Department of Industrial Relations, supra,
48 Cal.3d 341. Besides control, length and regularity of
employment (“the degree of permanence”) is an important
secondary factor, (Id.) At 355, and Rall’s uninterrupted six years
of employment is noteworthy. Because all indications here point
to employee status, there is no basis for ignoring the Labor Code’s
presumption. If, after discovery, defendants uncover sufficient
additional facts to seriously question Rall’s status as “employee,”
the trial court has the option to submit the issue to the jury as a
factual issue. (See Ali v. L.A. Focus Publication et al. (2003) 112
Cal.App.4th 1477.) At this point, however, respondents’ request
that this Court determine the issue de novo is inappropriate. 4

4 A finding that Rall was, at least at this point in the case,


presumed to be an employee permits this Court to avoid having
to determine whether, on the peculiar facts of this case, an
independent contractor in Rall’s position retains the same rights
not to be terminated against public policy as an employee. (See

26
B. Rall Easily Established a Probability of Prevailing
on his Employment Claims under the Second Prong
of the Anti-SLAPP Analysis
Once Rall is presumed to be an employee, the second prong
is easily satisfied. Ali, supra, 112 Cal.App.4th 1477, may be the
only reported California case of retaliation by proxy.
Interestingly, it also involved the firing of a journalist. Both
Ali and Rall were fired for political reasons because they offended
public officials with whom their employers wanted to curry favor
and expressed critical opinions on important public issues. There
is more than “minimal merit” to their wrongful termination
claims. Retaliation by proxy is a serious violation of public policy
– the police cannot be allowed to aggressively and arbitrarily
silence their critics. Ali cited the sections of the Labor Code that
protect employees against political retaliation and
discrimination. Consider this additional approach: The publisher

Bernt, “Wrongful Discharge of Independent Contractors: A


Source-Derivative Approach to Deciding Who May Bring a Claim
for Violation of Public Policy” (2000) 19 Yale Law and Policy
Review 39,57 (“An independent contractor with an indefinite
arrangement should be permitted to bring a wrongful
termination claim based on a public policy violation when the
underlying source of public policy is not dependent on
employment status.” In this case, the issue is the police silencing
of a critic; the critic’s employment status is irrelevant.)

27
of the Los Angeles Times and the Chief of Police are co-
conspirators in a 42 U.S.C. Section 1983 conspiracy to deprive
Rall of his civil rights. One overt act in that conspiracy is the
unlawful communication of a confidential police personnel file to
the Times. The police were barred by the Civil Code, section 47(b)
privilege of Rall’s misconduct complaint from direct retaliation;
they used their preferred relationship with the publisher to
illegally bypass that privilege and get Rall fired.
Likewise, Rall’s claim of violation of contract implied in fact
is substantially buttressed by the many declarations establishing
an industry standard in journalism, providing due process
protection for all employees charged with serious breaches in
ethics such as fabrication. (3AA 734-35, 740, 747, 751.) The
Times’ own published Ethical Guidelines confirm Rall’s
reasonable expectation that, upon being accused of fabrication, he
would be able to meet face to face with his supervisors and/or the
Editorial Board to defend himself, and to fairly present evidence.
(12AA 3719.)
C. Due Process is not a “Catch Phrase” – It is a Basis for
Proceeding on Rall’s Breach of Contract Claim and
Overcoming the Presumption of At-Will Employment
In the opening brief, Rall argued that he established the
probable validity of his breach of contract claim against the
Times. (AOB, 60.) Anticipating that the Times would rely on

28
Rall’s claimed status as a mere at-will employee, Rall further
argued in his opening brief that a presumption of at-will
employment can be overcome by a variety of factors, including
practices in the employee’s industry. (AOB, 60.) Rall offered
multiple declarations below establishing the standard in the
newspaper industry for a journalist facing an integrity allegation.
(3AA 734-35, 740, 747, 751.) Those industry standards include a
presumption in favor of the journalist. (3AA 740 ¶ 6.) Those
standards, and the Times’ own published Ethical Guidelines, also
required an in-person meeting with the journalist accused of
wrongdoing. (3AA 740 ¶ 7.) Authentication of the audio recording
and its source was also required by industry standards. (3AA 740
¶ 8.) Those standards and principles of Due Process do require, at
a minimum, that before he was fired, the Times provide Rall with
a face-to-face meeting with his Editorial Board and input should
have been solicited from his immediate, daily superiors. The
Times did not afford Rall any of these minimum procedural
safeguards that journalists, including those at the Times,
traditionally enjoy. (3AA 734-35, 740, 747, 751.)
The Times dismisses the foregoing Due Process argument
as a “catch-phrase.” (RB, 118.)

29
Figure 3 - Respondent’s Brief, p. 118

Rall’s invocation of the Due Process clause was not a mere


“catch-phrase.” It was a shorthand reference to the bare
minimum procedural safeguards that journalists recognize exist
and protect them from indiscriminate firings. Those safeguards
overcome the presumption of at-will employment for the purposes
of the “minimal merit” showing Rall was required to make on his
breach of contract claim against the Times.

IV. Rall Also met his Burden of Proving the Minimal


Merit of his Defamation Claims Under the Second
Prong of the anti-SLAPP Analysis

A. The Defamatory Articles were not True and Fair


Reporting of an Official Proceeding

30
1. The Public Policy Justification for Section 47(d)
Absolute Immunity is the Public’s Need to
Effectively Oversee the Conduct of Police
Faced with bad facts, Respondents are desperate to seek
refuge behind the absolute privilege of Civil Code, section 47(d),
California’s fair report privilege. Section 47(d) is the most
powerful of all privileges. Even if The Times knew of the falsity of
statements made during an official proceeding, and maliciously
published those false statements in order to destroy Rall’s
reputation, that publication is nevertheless privileged. (Jennings
v. Telegram-Tribune Co. (1985) 164 Cal.App.3d 119, 128; Grillo v.
Smith (1983) 144 Cal.App.3d 868, 873. Respondents argue that
Section 47(d) is merely a codification of the First Amendment fair
reporting privilege, but that is not the case. There is no First
Amendment “absolute right to defame;” Section 47(d) under
California statutory authority creates such a right. What justifies
such a powerful privilege?
The fair report privilege is required because of the
public’s need for information to fulfill its supervisory
role over government. Thus, reports of official
proceedings are not privileged ‘merely to satisfy the
curiosity of individuals,’ but to tell them how their
government is performing. While the public may not
have an overriding interest in knowing the details of
every crime committed, its interest in overseeing the
conduct of the prosecutor, the police, and the
judiciary is strong indeed.

31
(McClatchy Newspapers Inc. v. Superior Court of Fresno (1987)
189 Cal.App.3d 961, 975 [quoting Note, When Truth and
Accuracy Diverge: The Fair Report of a Dated Proceeding (1982)
34 Stan.L.Rev. 1041, 1049–1050].) 5
That critical oversight of law enforcement, however, is
vitiated when there is no consensus on what actually happened.
This next section argues that factual disputes not only require
jury determination, but cannot permit the application of Section
47(d) as a matter of law, or for that matter, the anti-SLAPP law.

5 The Stanford Note is interesting as a direct analogy here. It


reviews the case law regarding published reports that were
technically true, but omitted reference to a subsequent event that
makes the report defamatory. So, for example, if a person is
convicted for shoplifting and the newspaper reports it, but omits
to mention that the conviction was overturned on appeal, a report
of the conviction alone is libelous and unfair, thus unprivileged.
By analogy, the subsequent event here is the enhancement of the
audio recording that vindicates Rall. It is libel to choose to ignore
it.
The point of the Stanford Note is that omission can be as
defamatory as commission. Here the Times failed to tell the
readers about the true contents of the recording that proved
handcuffing and angry onlookers, that the investigator called a
wrong number then abandoned any investigation, that the entire
questioning of Rall’s employment was triggered by a visit from
Chief Beck, a biased source, to the publisher, who had a pro-
police bias. To be “fair and true,” these omissions need to be
brought to a finder of fact for resolution.

32
2. Disputed Facts as to the Applicability of Section
47(d) Require Jury Resolution, and Denial of the
Anti-SLAPP Motion
The conduct of a police officer is at the center of this case.
The public has an interest in overseeing the conduct of police
officers. There is a raging dispute as to what actually happened
when the officer ticketed Rall for jaywalking. On one side is Rall,
his expert with the enhanced tape, and his direct supervisor
Susan Brenneman who told Rall she believed him (but wasn’t
consulted about his firing); on the other is Officer Durr and
experts from the LAPD and the Los Angeles Times. When there
is a “dispute as to what occurred in the judicial proceeding
reported upon or as to what was contained in the report,” the
question is one of fact for a jury to decide. (McClatchy, supra, 189
Cal.App.3d at 976.) “Where . . . reasonable minds could disagree
on what is fair, the issue is a question of fact to be determined by
the jury.” (J-M Manufacturing Co., Inc. v. Phillips & Cohen
LLP (2016) 247 Cal.App.4th 87, 98; see also Handelsman v. San
Francisco Chronicle (1970) 11 Cal.App.3d 381, 386 [holding that
“the fairness of the report is a question of fact for the jury.”];
Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626,
1633–34. See also Jennings v. Telegram–Tribune Co. (1985) 164
Cal.App.3d 119, 128, italics omitted [“ ‘[T]he fairness of the report

33
is a question of fact for the jury’ “].) And see Hardin v. PDX, Inc.
(2014) 227 Cal. App. 4th 159, 171, as modified on denial of
reh’g (July 21, 2014): “PDX . . . asserts that the First Amendment
and Civil Code section 47, subdivision (d) immunize it from
liability for distributing what it describes as “truthful summaries
of the FDA’s Package Insert and Medication Guide.” It has not
been established at this juncture that WKH’s monographs are
“truthful summaries” of official FDA proceedings . . . or that they
“do nothing to dilute” the warnings in FDA-approved medication
guides and package inserts and are not otherwise misleading.
PDX’s evidence has not defeated that submitted by Hardin as a
matter of law . . . , so its anti-SLAPP motion was properly
denied.”)
To summarize, it isn’t simply that there are disputed facts
here that require a jury determination; the very public policy
underpinning of the Section 47(d) privilege — that the public be
able to effectively oversee the conduct of the government,
including its police — requires a resolution of the disputed facts.

3. The Totality of the Circumstances Test Requires a


Factual Resolution
Courts often describe the defamation fact-finder’s task in
terms of the “totality of the circumstances.” “When a plaintiff
claims that the report is defamatory, ‘the courts apply a totality

34
of the circumstances test to review the meaning of the language
in context and whether it is susceptible of a meaning alleged by
the plaintiff.” (Balzaga v. Fox News Network, LLC (2009), 173
Cal.App.4th 1325, 1337.)
The totality of the circumstances test is deeply rooted
in the law. The purpose of the test, in all its
applications, is to try to see the entire picture by
considering all the relevant facts collectively. Once
the picture emerges, the question is whether the
applicable standard has been met. Translated here,
the test requires a court to consider the challenged
statements in the context of the entire publication to
determine the natural and probable effect on the
average reader. (Citation.)

A defendant in a defamation case is only entitled to


judgment as a matter of law if a court, after correctly
applying the totality of the circumstances test, can
declare that the probable effect is unquestionably
nondefamatory. (Citation.)

(J-M Mfg. Co. v. Phillips & Cohen LLP, supra, 247 Cal.App.4th at
110.)
In this case, once Rall’s expert is believed, as he must be at
this anti-SLAPP stage of the proceedings, the probable effect of
the Times’ reports and articles is unquestionably defamatory.
The Times smeared Rall as a liar. He was not. He proved he was
truthful, yet the Times smeared him as a liar again. This case
should never have been taken away from the jury.

35
4. Most of the Defamatory Statements were
Conclusions Drawn from The Times’ Private
Investigation, 14 Years after the Jaywalking
Ticket
Because the defamatory language is a mix of reports of the
LAPD file and the separate, subsequent private Times
investigation, a review of the defamation claims is appropriate
here. In the “Note to Readers” (July 28, 2015) these are the
published falsehoods:
A. “An audiotape of the encounter recorded by the police
officer does not back up Rall’s assertions; it gives no
indication that there was physical violence of any sort by
the policeman or that Rall’s license was thrown into the
sewer or that he was handcuffed. Nor is there any evidence
on the recording of a crowd of shouting onlookers.” (1AA
66.) This is false. Per dictionary.com, an “audiotape” is
“magnetic tape for recording sound.” Magnetic tape, the
medium originally used by the police officer to record Rall’s
jaywalking arrest, is a tangible, physical object. The
whereabouts of the original audiotape is unknown. The
Times falsely conveyed to readers that it possessed the
original audiotape recorded by the police officer in 2001,
which is the only authenticatable — able to be verified as
not having been tampered with — format of audio. In fact,

36
the Times only possessed a digital file, a nth-generation
dub/copy of unknown provenance, which cannot be
authenticated and thus cannot be relied upon just as a
Xerox copy of a legal document cannot substitute for an
original legal document bearing an original signature. In
the same way that a photocopied document may have been
altered visually, a copy (or “dub”) of a sound recording may
have been spliced, tamped down or otherwise manipulated
and is thus worthless as evidence. Many readers in Los
Angeles work in the music and film industries and know
the difference. Most importantly, the audio recording does
back up Rall’s assertions. It does indicate physical violence,
namely handcuffing. At this point in the case the Court is
constrained to believe Rall’s proffered expert analysis of the
audio. Thus, a true and fair report of the audio would
include handcuffing and angry, shouting onlookers, as well
as the inherent unreliability of the evidence.
B. “The tape depicts a polite interaction.” (1AA 66.) What
small portion of the conversation can be heard may have
been modulated but handcuffing a jaywalker is never
“polite.” Whistling while a handcuffed accused jaywalker
awaits his ticket, as Durr did repeatedly, is not “polite.”
C. “Rall wrote in his blog post that the LAPD dismissed his
complaint without ever contacting him. Department

37
records show that internal affairs investigators made
repeated attempts to contact Rall, without success.” (1AA
66.) The clear and false inference from this allegation is
that Rall avoided being contacted, by more than one
investigator, and then complained about the lack of contact.
A true and fair report would demonstrate that department
records show that only one investigator called the same
wrong number several times, a number with an outgoing
voicemail message that was clearly not Rall’s voice, before
abandoning all efforts to reach Rall. A true and fair report
would indicate that the same police file reveals that the
LAPD had Rall’s correct mailing address, because Chief
Parks used it to inform Rall the case was dropped, but the
investigator never tried it. A true and fair report would
have reported that Rall called the LAPD to follow up his
complaint, left a message, but received no response.
D. “Asked to explain these inconsistencies, Rall said he stands
by his blog post.” (1AA 66.) A true and fair report would
show that Rall had been consistent for 14 years. A fair and
true report would have noted that Rall had much more to
say than a curt denial, cooperated fully and volunteered to
take a lie detector test at his own expense.
E. “[T]he recording and other evidence provided by the LAPD
raise serious questions about the accuracy of Rall’s blog

38
post. Based on this, the piece should not have been
published. Rall’s future work will not appear in The Times.
The Los Angeles Times is a trusted source of news because
of the quality and integrity of the work its journalists do.
This is a reminder of the need to remain vigilant about
what we publish.” (1AA 66.) A true and fair report of the
LAPD “evidence” would raise no serious question about the
accuracy of Rall’s blog post. The reference to “other
evidence” is false and misleading. What else is there other
than calls to a wrong number?
The second article, entitled “Times Reaffirms Decision that
Ted Rall’s Blog Post Did Not Meet its Standards” (August 19,
2015) included the following falsehoods:
1. “The Los Angeles Police Department challenged Rall’s
account and provided documents and a tape recording of
the 2001 encounter that indicate the officer did not use
force against Rall and treated him politely.” (1AA 68.) The
Times didn’t receive a “tape recording.” (Meriam-Webster’s
definition of “tape recording” is a “magnetic recording on
magnetic tape.”) It received a purported digital copy of the
tape recording. A true and fair report would show that the
Times’ audio was questionable as evidence. On the other
hand, Rall’s enhanced audio proves the officer did use force
— he was handcuffed —and bystanders commented

39
angrily, and that there were no “documents” that addressed
the issue of Durr’s behavior.
2. “The Times interviewed Rall about the discrepancies
between the police records and tape recording and his blog
post.” (1AA 68.) There were no discrepancies. Also, this
interview was conducted informally by phone and not in
person as the Times’ own Ethical Guidelines require.
3. “Goldberg said in a note to readers July 28 that the LAPD
records and other evidence ‘raise serious questions about
the accuracy’ of the blog post…”. (1AA 68.) What other
evidence? There is no other evidence beyond the LAPD file.
4. “Rall has written repeatedly that the LAPD ignored his
original complaint. Department records show that
investigators looked into his allegations, questioned the
officer who ticketed Rall, listened to the recording and tried
repeatedly to reach Rall.” (1AA 69.) This is a string of
outrageous falsehoods. There was only one investigator.
Department records provided to the Times show that that
investigator never “looked into” the allegations, much less
questioned the officer. All he did was repeatedly call a
wrong number. He never interviewed Durr. There is no
evidence that he ever listened to the recording. Therefore,
this statement is unfair and false.

40
5. “The department had investigated Rall’s complaint in
January 2002. . .” (1AA 71.) There was no investigation.
The matter was simply abandoned.
6. “No version of the recording, including Rall’s enhanced
one, supports the cartoonist’s allegations that Durr was
violent, hostile, rude and belligerent.” (1AA 75.) This is
false. Rall’s enhanced audio and transcript indicates that
Durr handcuffed him and bystanders protested. That is
certainly violence, belligerence, rudeness and hostility in
the context of a jaywalking ticket. Even the unenhanced
audio recording provided by the LAPD depicts Durr
whistling merrily, which is certainly rude in the context of
issuing a jaywalking ticket to a handcuffed citizen.
Even if this Court were to find that the jaywalking ticket or
the LAPD file is an “official proceeding” (see argument contra,
infra) it is apparent that many, if not most, of the defamatory
comments are made in the context of the Times’ subsequent
private investigation of Rall’s 2015 blog post and are not “true
and fair” reporting of the 14-year-old ticket or police file. This
was the observation of the trial court:

[T]he LAPD investigation into the issuance of


plaintiff’s jaywalking ticket is not the focus of the
articles. It is background. The focus of the articles is
the reasons why the Los Angeles Times terminated

41
[its] relationship with plaintiff, and on
reconsideration affirmed that decision.
(18AA 5912.)
Private investigations are not subject to the Section 47(d)
privilege. (Hawran v. Hixon (2012) 209 Cal.App.4th 256.)
Respondents provide case law that argues that the report has to
be given wide latitude to place the “public official proceeding” in
context, but all the cases cited by respondents involve descriptive
language placing the report in a historical context or providing
necessary background. There is no case law extending the
privilege to reports of a defamatory future private investigation,
conducted 14 years after the first incident, that was triggered by
doubts that surfaced about a contemporary article. (See Hawran
v. Hixson, supra, 209 Cal.App.4th at pp. 280–281 [privilege did
not apply where publication did not “report on, summarize or
describe the SEC proceeding or investigation, the history of the
SEC proceeding or investigation, or any communications made ‘in
the course of’ that investigation” but rather “report[ed] the
results and consequences of [the defendant’s] own internal
investigation”].) “Again, the public policy rationale of the 47(d)
privilege is to provide oversight of government conduct: ‘The fair
report privilege is required because of the public’s need for
information to fulfill its supervisory role over government. Thus,
reports of official proceedings are not privileged ‘merely to satisfy
the curiosity of individuals,’ but to tell them how their

42
government is performing.” (McClatchy Newspapers, Inc. v.
Superior Court, supra, 189 Cal.App.3d at 974–975.) The Times
“investigation” was private and unprivileged.

5. Neither the Jaywalking Ticket nor the LAPD File


of Rall’s Complaint is an “Official Proceeding”
Respondents claim that the issuance of a ticket is a “public
official proceeding” privileged by Civil Code, section 47(d). So, for
example, if the Times alleges that Mayor Garcetti has many
unpaid parking tickets, even though they were long since paid off
and the Times knew it, could they defend a defamation suit by
arguing that the issuance of a ticket is an “official proceeding”? If
a dog bites a mailman and the Times publishes an article falsely
claiming the mailman provoked the dog with a taser, does Section
47(d) apply because “delivery of the mail” is an “official
proceeding”? There is no case law supporting respondents’
argument that the reporting of routine everyday conduct of
government officials is automatically privileged. That would
expand the already powerful privilege beyond rational or policy
limits.
The complaint filed by Rall about Durr’s behavior calls for
more discussion. We suggest that one reason the 47(d) privilege is
so powerful is because the official proceeding required by the
statute – a trial, a hearing, an investigation, a neutral and

43
detached magistrate, a verified complaint issued upon probable
cause — comprehends some basic due process consideration of
the defamed victim’s defense of the false narrative. Rall’s
complaint was assigned to an investigator who tried to reach Rall
telephonically, but who indisputably called a wrong number (the
voice message is not Rall) on more than one occasion, then
dropped any further investigatory efforts. He never interviewed
Rall, or Durr. The investigation never took place. LAPD
regulations require an investigation to begin with a recorded,
face-to-face interview of all witnesses. The records provided by
Beck do not evidence any interviews or meetings, much less a
hearing. Whatever did take place was in anticipation of an
official proceeding, not an official proceeding comprehended by
47(d)(1)C. A “proceeding” implies meaningful action; calling a
wrong number is simply a failed attempt at preparing for a
possible proceeding. This is not an exercise in semantics. In a
proceeding (respondents prefer to use the word “probe,” an
acceptable synonym) affirmative action is taken by an “official”
and the complaining witness/victim has an opportunity to tell
his/her side of the story.
Our initial brief spent some time distinguishing between
the two privileges represented by 47(b)(the litigation privilege)
and (d)(the fair report privilege). The litigation privilege covers
the citizen complaint even if no action is taken on the complaint

44
and/or no proceeding results. (Imig v. Ferrar (1977) 70
Cal.App.3d 48.) Society encourages citizens to report incidents of
official wrongdoing. The 47(d) privilege, in contrast, requires a
complaint alone to be either the subject of an official proceeding
(47(d)(1)C), or “a verified . . .complaint made by any person to a
public official, upon which complaint a warrant has been issued.”
(Civ. Code, section 47(d)(1)(E).) Please note this latter language.
To earn the absolute privilege, a complaint must be verified –
that is, filed under oath under penalty of perjury, and acted upon
by an official in the issuance of a warrant, presumably upon a
showing of probable cause. This double protection for the
defamed party balances the absolute privilege and makes
unwarranted injury to reputation less likely. 47(d) is inapplicable
here because there was neither an official proceeding nor a
verified complaint that triggered the issuance of a warrant.
If, however, this Court were to hold that the mere filing of a
complaint constituted an official proceeding within 47(d), the
exception in paragraph (2)(C) must be addressed. That paragraph
excepts a communication to a public journal that “violates any
requirement of confidentiality imposed by law.” In this case,
there is no question that the police personnel file in which Officer
Durr’s behavior was challenged is confidential. Ironically, the
L.A. Times ran a series of articles and an editorial in August
2018 calling for legislation to allow easier disclosure of

45
confidential police personnel files. Respondents argue that the
confidentiality exception only covers those who bring the file to
the newspaper’s attention, not the paper itself, and that in any
case Chief Beck and Durr waived confidentiality. There is no case
law so limiting the application of 47(d)(2)(C), nor is there any
evidence in the record here relating to a waiver of confidentiality
or whether the LAPD went through the legally-required
procedures in order to obtain release of the file. These are all
issues of first impression that require discovery to elaborate the
factual context. Here’s another issue of first impression: the
communication to the Los Angeles Times was not in the interest
of contributing to a discussion of public interest; it was an
attempt to undermine a private employment relationship. It’s
true that in most instances the Times is a public journal with
standing to assert the 47(d) privilege; in this case, however, it is
merely a private employer whose investigation was for its own
benefit or the proxy benefit of the Police Chief, not that of the
reading public. One more reason why Rall should not be denied
his day in court.

B. Rall Established a Prima Facie Case that the False


Statements were Fact not Opinion
The Times contends that its statements about Rall are
inactionable opinion. (RB 84.) The Times relies on Moldea v. New

46
York Times (D.D.C. 1992) 22 F.3d 310, 317, for the proposition
that even “if The Times had stated expressly that Rall’s work
‘was of low quality and low integrity’ (RB 77-78), which it did not,
the statement would be constitutionally protected.” (RB 84.)
Moldea was a decision that issued following summary judgment
after the parties had the opportunity to conduct discovery and
present evidence to the lower court. Moreover, in Moldea, the
allegedly libelous statement was made in the context of a New
York Times book review, where the reviewer opined that the book
contained “too much sloppy journalism.” The court held that such
an opinion is not capable of demonstration of falsity, and
therefore is non-actionable. Moreover, the court recognized the
wide latitude that should be afforded to writers in a context
where readers expect to read opinions of the books being
reviewed. (Id. at 315.) In other words, context matters. In
contrast to a book review in the Sunday New York Times, the hit
pieces the Times published about Rall were authored by high-
ranking editors, not critics. They purported to be investigative
journalism that asserted false facts and withheld other facts that
proved the falsehood of those false facts. The Note expressed the
following four facts about Rall and his termination:
First, the Note stated that the Times had the original
media (tape) – and not a digital audio of unknown origin –

47
depicting the 2001 detention. (1AA 66). Possession of the original
tape as opposed to a digital copy renders the LAPD’s account
more credible to the readers.
Second, the Note implied that Rall’s sole response to the
“tape” when asked was that he “stands by his blog post.” (1AA
66.) In fact, Rall had much more to say than just standing by his
original blog post. (3AA 690-696 ¶¶ 70-218.) The Times had
possession of all of Rall’s response but withheld that from the
readers of the Note and Article. By doing so, readers were left
with the impression that the only facts or argument that Rall
could muster in his defense was the curt anodyne phrase that he
“stands by his blog post.”
Third, the Times also withheld from its readers that it had
not bothered to conduct any analysis of the audio to determine
whether it was authentic and untampered. (3AA 705-706 ¶¶ 169-
173.)
Fourth, the Note states that based on both the “tape” and
unspecified “other evidence” possessed by the Times there were
“serious questions” about Rall’s post and it “should not have been
published.” (1AA 66.) The Note certainly did not lay out this
“other evidence” in the Note and only some of said cherry-picked
“evidence” in the Article.
Fifth, that because the Times is a “trusted source of news

48
because of the quality and integrity of the work it published”
Rall’s work was of low quality and low integrity based on the
Times’ (nonexistent) “tape” and unnamed “other evidence.” (1AA
66.)
The Article likewise stated that the Times had a “tape” –
the original media. (1AA 68.) The Article indicates that LAPD
officers “tried repeatedly to reach Rall.” (1AA 69.) In fact, the
answering machine, the LAPD called was demonstrably
not Rall’s and that would have been apparent had anyone at the
Times who knew Rall’s voice — like one of his editors — listened
to the recording offered by the LAPD. (3AA 687 ¶ 56.) For that
matter, there were numerous recordings of Rall’s voice in audio
and video interviews archived on the Internet, just a Google
search away.

C. Rall Met his Burden of Proving that the Times’


Statements were Materially False and Defamatory
The Times contends that Rall failed to prove that any
statements were false and defamatory. (RB, 74.) As set forth in
Part IV above, Rall did prove multiple falsehoods. First and
foremost, the Times’ assertion that the recording failed to depict
“a crowd of shouting onlookers” has been thoroughly debunked:
the enhanced audio reveals a crowd that shouted:
“Why’d you handcuff him?”
“So he’s detaining him?”

49
“He was just jaywalking. You need to take off ...
no take off his handcuffs.”
(3AA 707 ¶ 182.)
Second, the Times’ assertion that the LAPD repeatedly
contacted Rall without success and so closed its investigation is
also false. Only one single investigator called the same wrong
number several times before abandoning all efforts to reach Rall.
The LAPD provided the Times with an audio file – this time a
recording of an LAPD investigator leaving a message on
someone’s answering machine – not Rall’s. (17AA 5313.) The
audio recorded the LAPD’s message as well as the outgoing
“leave a message” greeting by the owner of the answering
machine. (17AA 5313). Any person at the Times listening to that
recording and the outgoing message (such as reporter and
defendant Paul Pringle, who called Rall and thus heard his voice)
would have recognized the voice on the message as nothing close
to Rall’s. (3AA 687 ¶ 56.) The outgoing “leave a message” voice
had a heavy South Asian accent. (3AA 687 ¶ 56.) Rall, born in
Massachusetts and raised in Ohio, has no such accent. (3AA 687
¶ 56.)
Third, the Times wrote that when Rall was asked to
explain claimed inconsistencies between his blog post and the
audio recordings, Rall simply said he “stands by” his original blog
post. (1AA 66.) The suggestion of this statement is that Rall had

50
nothing else to offer beyond the original blog post and that
assertion by the Times was false.
Fourth, the Times wrote that LAPD “investigators looked
into his allegations, questioned the officer who ticketed Rall,
listened to the recording and tried repeatedly to reach Rall.” (1AA
69.) This was false. The sole action taken by the LAPD was taken
by one investigator who called a wrong number. (3AA 687 ¶ 56.)
The LAPD never spoke with Rall. There is no evidence in the
record that the LAPD listened to the recording. Nor is there any
evidence that the LAPD interrogated the officer.
Fifth, Rall proved that the Times’ assertion that it actually
had an audiotape of the 2001 encounter was false. The Times did
not have an audiotape.

D. Rall Met his Burden of Proving that Third Parties


Read and Understood that the Defamatory
Statements Referred to Rall and Accused him of
Fabrication
Respondents argue that Rall failed to prove that its
statements about Rall and his firing had a defamatory meaning.
(RB 75.) They suggest that all the Times did was to note
discrepancies between Rall’s account of the 2001 incident and the
evidence presented by the LAPD. (RB, 75.) But the Times did
more than simply say: “there are discrepancies.” The initial Note

51
and later Article by the Times made the factual assertion that
Rall lied about the LAPD. Together these two defamatory
statements when read together portrayed Rall as a journalist
who fabricated stories. There is no question that the Times’
readers and other media sources who reported on Rall’s
termination understood the Times was accusing Rall of lying
about being handcuffed by the LAPD. After the first round of the
Times’ defamatory statements were published in the Note, the
LAPD’s Police Protective League wrote on its website:
So many within the LAPD were pleasantly surprised
at the recent firing of the Los Angeles Times opinion
cartoonist Ted Rall, which we believe was justified
based on evidence proving that he lied about his
encounter with LAPD officers.

(3AA 698-99.)
Similarly, Internet blogs and news websites posted articles
whose titles demonstrate that they accepted the Times’ account
that Rall lied:
• “Los Angeles Times Fires Leftist Cartoonist Ted Rall For
False Account About LAPD” 6
• “Ted Rall Dumped by L.A. Times for Dishonesty” 7

6 3AA 701.
7 3AA 701.

52
• “LA Times Fires Leftist Cartoonist Ted Rall for False
Account About LAPD” 8
• “Left-Wing Cartoonist Ted Rall Fired by L.A. Times for
Lying About LAPD” 9
• “Left-Wing Cartoonist Rall Fired by LA Times for Lying
About LAPD” 10
• “LA Times Fires Ted Rall for Lying About Police
Encounter”
• “Ted Rall, Los Angeles cartoonist, dropped after post
appears to stretch the truth” 11
• “L.A. Times Fires Left-Wing Cartoonist Ted Rall After He
Lies About Being ‘Roughed Up’ by L.A. Police” 12
• “The L.A. Times’ Ted Rall Versus the LAPD: He Made It
Up. And He Got Caught” 13
Respondents’ suggestion that Rall did not meet his burden
of proving the defamatory meaning of the Times’ statements is
without merit.

8 3AA 701.
9 3AA 701.
10 3AA 702.
11 3AA 704.
12 3AA 704.
13 3AA 707.

53
E. Rall Met his Burden of Proving that the Times’
Statements were Materially False and Defamatory
The Times contends that the gist of its articles were true
and “close” is good enough to avoid defamation liability. (RB 74.):
Minor inaccuracies do not amount to falsity so long as
‘the substance, the gist, the sting, of the libelous
charge be justified.’ [Citations.] Put another way, the
statement is not considered false unless it ‘would
have a different effect on the mind of the reader from
that which the pleaded truth would have produced.’

(Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 691.)


Rall’s claims against the Times do not rest on “minor
inaccuracies.” Whether Rall was handcuffed or not is not minor.
Whether the LAPD’s actions were so out of line that they drew a
crowd of onlookers who shouted at the officer is not minor.
Whether the LAPD actually tried to contact Rall as part of an
investigation is not minor. Whether Rall – in defense of his
writings – merely “stood by” his original blog post or actually
offered mountains of evidence to the Times is not minor. Whether
the Times had the actual original microcassette tape as opposed
to a nth-generation digital audio copy is not minor. Moreover,
whether the Times had the original tape – not a digital copy –
would have had a different effect on the Times’ readers. In Los
Angeles, many readers work in the Entertainment industry and
the source and format of the evidence would have been
meaningful to those readers. The Times’ assertion that no

54
shouting onlookers can be heard on the audio suggests that Rall
lied when he said people protested his handcuffing. The Times’
assertion that no one protested or shouted (or that Rall was
handcuffed at all) is a material fact that impacted how the Times’
readers understood the pieces about Rall.

F. Rall’s September 4, 2015 Demand for a Retraction of


the Article Complied with Civil Code, Section 48a
The Times cites Civil Code, Section 48a for the proposition
that Rall failed to request a retraction of false statements by the
Times and he is, therefore, limited in his recovery of damages.
(RB 89-90.) The Times’ Section 48 argument fails for several
reasons.
First, Rall did comply with Section 48. On August 3, 2015,
Rall requested that the Times retract the July 27, 2015 Note to
Reader in full. (1AA 282.) On August 5, 2015, Rall requested that
the Times retract the July 27, 2015 Note to Readers in full. (1AA
285.) On August 6, 2015, Rall requested that the Times retract
the Note. (1AA 286.) The foregoing demands were all sufficient to
put the Times on notice of which article contained false
statements and the need for retraction. Indeed, on August 11,
2015, the Times acknowledged Rall’s request for a retraction,
including an identification of the date and title of the Note to
Readers. (1AA 291.)

55
Nothing on the face of Section 48 requires a sentence-by-
sentence, word-by-word identification and analysis of each false
statement. The purpose of Section 48 is to facilitate a
newspaper’s investigation to determine whether errors need to be
corrected. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 30–31.)
Requests for retraction pursuant to Section 48 need not “conform
to the niceties of common law pleading.” (Ibid.) The Legislature
did not intend Section 48 to “build technical barricades to
recovery by the individual who had given notice sufficient to
advise a reasonable publisher acting in good faith of the claimed
error.” (Ibid.) “The crucial issue in evaluating the adequacy of the
notice turns on whether the publisher should reasonably have
comprehended which statements plaintiff protested and wished
corrected.” (Ibid.) Notably, the California Supreme Court in
Kapellas noted that the publisher had never reacted to the
request for retraction by asking for clarification from the
plaintiff. (Id. at 28.) Here too, the Times never asked Rall to
clarify what statements were defamatory.
Moreover, on September 4, 2016, Rall did identify seven of
the worst and most obvious falsehoods in the Note. (1AA 277.)
Although he only specifically described the falsehoods as to seven
statements, he demanded that the entire article be retracted.
(1AA 277.) Rall did observe in his retraction demand letter that
his request did “not constitute a complete listing of the libelous

56
and/or untruthful statements contained within” the article. 1AA
279. Rall’s retraction requests were more than sufficient to allow
the Times to comprehend which statements Rall “protested and
wished corrected.” (Kapellas v. Kofman, supra, 1 Cal.3d at 30–
31.)
Second, the Times concedes, as it must, that Rall did
effectively demand a retraction of some statements in compliance
with Section 48. (RB 90.) As to those statements that the Times
concedes Rall specifically demanded a retraction, Rall is
permitted to proceed with his defamation per se claim and need
not plead nor prove general damages. The anti-SLAPP motion
should not have been granted given Rall’s admitted compliance
with Section 48.
Third, even if this Court were to conclude that Rall did not
comply with Section 48 and his claims were limited to actual
damages, Rall provided evidence of specific and actual damages
he incurred. He declared:

After Defendants published the Note and Article, I


have found difficulty in my attempts to expand into
new areas and in gaining new clients. I have noticed
that the number of speaking opportunities, job
prospects, freelance illustration assignments and new
newspapers and magazines reaching out to contact
me about publishing my work, as well as the number
of replies to my queries, have dropped precipitously
since the summer of 2015. I have noticed a marked

57
decrease in the number of professional opportunities
for me and a higher frequency of being turned down
for opportunities which I pursue.
(3AA 716 ¶ 229.)
Rall also stated:
Similarly, after the Note and Article were published,
my relationship with my close friendship and
business relationship with fellow award-winning
cartoonist Matt Bors was destroyed. For years, we
have spoken frequently on the phone, been on the
same side of controversies in the field of journalism,
and given each other work. When I was an executive
at United Media, I gave Matt his first syndication
contract, his first major break for his career. I took
him with me on my 2010 trip to Afghanistan,
expenses paid, an experience pivotal to launching his
career as a graphic novelist and comics journalist. He
returned the favor: as editor of the comics site The
Nib at Medium.com, for example, he hired me to
draw numerous cartoons.
However, Matt initially believed the Times in this
controversy, not me, because he told me. When I
would call him, he stopped returning my calls. We
are no longer friends.

(3AA 716 ¶¶ 231-32.)


In journalism as in other businesses, the loss of a professional
friendship reduces opportunities.
In sum, the Times’ argument that Rall’s recovery is barred
or diminished by Section 48 lacks merit. Rall complied with the
Times by giving it notice that the Note was false and should be
retracted. The Times never sought clarification from Rall and

58
under the circumstances the Times understood exactly what
Rall’s objections to the Note were. At best, non-compliance with
Section 48 affords the Times a basis to reduce a damages claim at
trial – not a grounds for striking the entire pleading.

G. Rall was not a Limited Purpose Figure and


Respondents Concede that Rall Was Not Required to
Prove Respondents’ Actions Were Motivated by
Malice
The opening brief explained that Rall was not a limited
purpose figure and, therefore, Rall need not prove the existence of
malice for his defamation claims. (AOB 82-83.) The Times
concedes this point through omission and in fact argued that Rall
need not prove malice at the anti-SLAPP stage. (RB 93 [“Actual
Malice Is Irrelevant At This Stage.”].)

H. Even if this Court Concluded that Rall was a Limited


Purpose Figure he Proved Respondents’ Actions
Were Motivated by Malice
Rall was not a limited purpose figure. However, even if he
were, the opening brief listed over a dozen “red flags” that amply
demonstrate how Respondents acted with malice when they fired
him. (AOB 83-84.) Those “red flags” include the Times’ blind
reliance on evidence supplied by the LAPD, the Times’ failure to

59
interview Rall in person; the Times’ failure to utilize Rall’s
supervisors or the Editorial Board in the process; Durr’s false
statements about never handcuffing anyone in his career; Rall’s
offer to take a polygraph test and the Times’ rejection of that
offer; the speed with which the Times’ fired Rall; the violation of
the Times’ own ethical guidelines; the Times’ decision to fire Rall
but not the editors who reviewed his blog post before publication.
Respondents, perhaps because they concede that Rall need
not prove malice, did not address these red flags in their brief.
The phrases “Editorial Board” or “Ethical Guidelines” are not
mentioned anywhere. Respondents cannot defend the
indefensible.

V. The Times Has Abandoned its Evidentiary


Objections Argument
The Times contends that the trial court should have
sustained the evidentiary objection to Rall’s evidence. (RB 121-
22.) The Times’ ninety-eight objections were set forth in a fifty-
seven-page document filed below. (8AA 3884.) This drive-by
argument by the Times is underdeveloped. There is no
meaningful discussion of the relevant standard of review (abuse
of discretion). The Times does not describe any of the individual
objections and does not cite any case law or sections of the
Evidence Code suggesting why the trial court lacked the

60
discretion to consider this evidence. The Times simply argues
that all ninety-eight objections should have been granted. As a
consequence of failing to support their argument with any legal
citation, the Court should find the issue of evidentiary objections
to be abandoned. (Okorie v. Los Angeles Unified School Dist.
(2017) 14 Cal.App.5th 574, 600.)

61
CONCLUSION
Respondents are asking a lot of this Court. They ask that
their various asserted privileges be determined as a matter of
law; that they be given the unfettered right to retaliate by proxy
against a critic of the LAPD, to label a long-time employee a
fabricator without ever allowing a challenge to that false
allegation, to fire based on a violation of journalistic ethics while
brazenly flouting their own published Ethical Guidelines. The
larger issues are this: the L.A. Times is a news monopoly in our
city. Radio and TV news stations here rely on the Times for the
vast majority of their local news stories. There are no competing
venues for protection of a citizen’s reputation if the L.A. Times
gets it wrong, as they must do from time to time. And secondly,
the political cartoonist is the most vulnerable of all journalists.
He is paid to speak truth to power, to risk offense to the political
leadership. He is the canary in the coal mine of the First
Amendment. All he asks here is the opportunity, for the first
time, to have his claims considered by a finder of fact. Please
remand to allow this to happen.
Dated: September 10, 2018 By: ___________________________
Roger A. Lowenstein
Attorney for Appellant

Dated: September 10, 2018 By: ___________________________


Jeffrey Lewis
Attorney for Appellant

62
CERTIFICATE OF WORD COUNT
(Cal. Rules of Court, rule 14(c)(1).)

The text of this brief consists of 12,269 words as counted by


Microsoft Word for Mac 2016 software used to generate the brief.

Dated: September 10, 2018 By: ___________________________


Jeffrey Lewis
Attorney for Appellant

63
No. B284566

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA


SECOND APPELLATE DISTRICT, DIVISION 8

FREDERICK THEODORE RALL, III,


Plaintiff and Appellant,

v.

TRIBUNE COMPANY, et al,


Defendants and Respondents.

Proceedings of the Los Angeles County Superior Court


Case No. BC613703 · Hon. Joseph R. Kalin, Judge Presiding

PROOF OF SERVICE

Roger A. Lowenstein, Bar No. 200921 * Jeffrey Lewis, Bar No.183934


1949 Coldwater Canyon Drive 609 Deep Valley Drive, Suite 200
Beverly Hills, CA 90210 Rolling Hills Estates, CA 90274
Tel: (213) 705-9153 Tel: (310) 935-4001
Fax: (213) 381-8489 Fax (310) 872-5389
E-Mail: rlowenstein@laleadership.org E-Mail: Jeff@JeffLewisLaw.com

Attorneys for Plaintiff and Appellant


Frederick Theodore Rall, III
Rall v. Tribune Company, et al.
Los Angeles County Superior Court Case No.: BC613703
Court of Appeal Case No.: B284566

I, Jason R. Ebbens, declare that I am over the age of 18


years, employed in the County of Los Angeles, and not a party to
the within action; my business address is 609 Deep Valley Drive,
Suite 200, Rolling Hills Estates, CA 90274.

On September 10, 2018, I served the foregoing:


1. APPELLANT’S REPLY BRIEF
on the interested parties in this action by placing ¨ the original
x a true copy thereof, enclosed in a sealed envelope with postage
pre-paid, addressed as follows:

* See Attached Service List *


BY MAIL. I am readily familiar with this law firm’s
practice for collection and processing of correspondence for
mailing with the U. S. Postal Service. The within correspondence
will be deposited with the U. S. Postal Service on the same day
shown on this affidavit, in the ordinary course of business. I am
the person who sealed and placed for collection and mailing the
within correspondence on this date at Rolling Hills Estates,
California, following ordinary business practices.

BY ELECTRONIC SERVICE. I served the foregoing


document(s) on interested parties by using the electronic filing
service TrueFiling to serve and file documents electronically as
mandated by the California Court of Appeal, Second District. The
documents were electronically transmitted to the e-mail
addresses of the persons set forth the above.
(STATE) I declare under penalty of perjury under the laws
of the State of California that the foregoing is true and correct.

Executed on September 10, 2018, in Rolling Hills Estates,


California.

_____________________________
Jason R. Ebbens

2
SERVICE LIST
Page 1 of 2
Rall v. Tribune Company, et al.
Los Angeles County Superior Court Case No.: BC613703
Court of Appeal Case No.: B827721

VIA TRUEFILING

DAVIS WRIGHT TREMAIN LLP Attorneys for defendants:


856 South Figueroa Street, Suite 2400
Los Angeles, CA 90017-2566 Tribune Company

Kelli L. Sager, Esq. Tribune Interactive,


Email: kellisager@dwt.com LLC
Tel: (213) 633-6800 | Fax: (213) 633-
6899 Tribune Media Company

Dan A. Laidman, Esq. Tribune Publishing


Email: danlaidman@dwt.com
Tel: (213) 633-6886 | Fax: (213) 633- Austin Buetner
6899
Nicholas Goldeberg
Rochelle L. Wilcox, Esq.
Email: rochellewilcox@dwt.com Paul Pringle
Tel: (213) 633-6800 | Fax: (213) 633-
6899 Deirdre Edgar

Los Angeles Times


LOS ANGELES TIMES Communications LLC
COMMUNICATIONS LLC
202 West 1st Street Tribune 365 LLC, dba
Los Angeles, CA 90012 Tribune Media Net, Inc.

Jeffrey D. Glasser, Esq. Tronc, Inc.


Tel: (213) 237-5000

SUPREME COURT OF CALIFORNIA 1 Electronic Copy pursuant


350 McAllister Street to California Rule of Court
San Francisco, CA 94102 8.212(c)(2)

3
SERVICE LIST
Page 2 of 2
Rall v. Tribune Company, et al.
Los Angeles County Superior Court Case No.: BC613703
Court of Appeal Case No.: B827721

VIA FIRST CLASS UNITED STATE MAIL

LOS ANGELES COUNTY SUPERIOR COURT 1 Paper Copy


111 North Hill Street
Los Angeles, CA 90012
Honorable Joseph R. Kalin
Department 51