Filed 2/5/21 McNair v. National Collegiate Athletic Assn. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

TODD McNAIR,

Plaintiff and Respondent,

v.

NATIONAL COLLEGIATE 

ATHLETIC ASSOCIATION,

Defendant and Appellant.

 B295359

 (Los Angeles County

 Super. Ct. No. BC462891)

APPEAL from an order of the Superior Court of Los 

Angeles County, Frederick C. Shaller, Judge. Affirmed.

Munger Tolles & Olson, Donald B. Verrilli, Jr., Glenn D. 

Pomerantz, Nicholas S. Dufau; Wilkinson Walsh + Eskovitz, 

Kosta S. Stojilkovic, Rakesh Kilaru and Julie B. Rubenstein for 

Defendant and Appellant.

Greene Broillet & Wheeler, Bruce A. Broillet, Scott H. Carr, 

Christian T. F. Nickerson; Esner, Chang & Boyer, Stuart B. 

Esner and Kevin K. Nguyen for Plaintiff and Respondent.
2

This is the fourth proceeding before this court in the 

defamation action brought by plaintiff Todd McNair against the 

National Collegiate Athletic Association (the NCAA).

1 The 

lawsuit arose from the NCAA’s finding that McNair, a former 

assistant coach for the University of Southern California (USC) 

football team, violated ethical conduct regulations during the 

NCAA’s investigation into whether team member Reggie Bush

received improper benefits while he was a student-athlete at 

USC. In this appeal, the NCAA challenges the trial court’s 

declaratory judgment and its order granting McNair’s motion for 

new trial. We hold that the trial court did not abuse its 

discretion in finding insufficient evidence to justify the verdict on 

falsity. Accordingly, we affirm the new trial order and do not 

address the NCAA’s challenge to the declaratory judgment.

BACKGROUND

I. The NCAA

“The NCAA is a private, voluntary organization composed 

of approximately 1,200 colleges, universities, and other 

educational institutions throughout the United States. Its 

purpose is ‘ “to maintain intercollegiate athletics as an integral 

part of the educational program and the athlete as an integral 

part of the student body, and by so doing, retain a clear line of 

demarcation between college athletics and professional sports.” ’ ” 

(McNair I, supra, 234 Cal.App.4th at p. 29.) 

1 McNair v. National Collegiate Athletic Assn. (2015) 234 

Cal.App.4th 25 (McNair I); McNair v. National Collegiate Athletic 

Association (Dec. 7, 2015, B245475) [nonpub. opn.] (McNair II); 

McNair v. Superior Court (2016) 6 Cal.App.5th 1227.
3

The NCAA accomplishes this purpose by adopting and 

enforcing a constitution, bylaws, and regulations. (McNair I, 

supra, 234 Cal.App.4th at p. 29.) Under the enforcement process, 

when the NCAA receives an allegation of a rule violation, 

investigators attempt to interview everyone who may have 

knowledge of the alleged violation. (McNair II, supra, B245475.) 

If the enforcement staff concludes there is sufficient information 

to indicate that NCAA rules have been violated, it provides the 

institution with a notice of allegations. At the conclusion of its 

investigation, the enforcement staff submits a case summary to 

its Committee on Infractions (the COI). (Ibid.) The COI is 

comprised of athletic directors, athletic conference 

commissioners, faculty athletic representatives, judges, 

attorneys, and professors, who serve voluntarily and not as 

employees of the NCAA. (Ibid.) After holding a hearing, the 

voting members of the COI deliberate in private. (Ibid.) The 

COI’s findings are made, and the penalties are imposed, in an 

infractions report. The NCAA Infractions Appeals Committee 

hears any appeal of the COI’s determinations. (Ibid.) The 

NCAA’s bylaws require that COI and Appeals Committee reports 

“ ‘be made available to the national wire services and other media 

outlets.’ ” (Ibid.) 

Member institutions, along with their employees, student 

athletes, and alumni agree to comply with the rules and 

regulations and to submit to the NCAA’s enforcement process. 

Because the NCAA does not have subpoena power, the 

enforcement staff relies on the cooperation of witnesses. 

(McNair I, supra, 234 Cal.App.4th at p. 29.) Under this so-called 

cooperative principle, member institutions agree to be 

transparent and cooperative, and that the process will be fair. 
4

The NCAA is empowered to penalize a coach and an 

institution when, among other things, a coach knows of an 

infraction and fails to report it, or knowingly furnishes false or 

misleading information about involvement in, or knowledge of, a 

rules violation.

II. The allegations 

In 2006, during Bush’s third year of college, the NCAA 

received allegations that he had violated NCAA rules while he 

was a running back on the football team. According to the 

allegations, Lloyd Lake (Lake), a convicted felon, and his 

associate Michael Michaels (Michaels) formed a sports agency 

and marketing company and began giving Bush and his parents 

cash and other benefits such as merchandise, housing, lodging, 

and transportation in exchange for Bush’s promise to sign with 

Lake’s agency when he began playing professional football. 

Although this arrangement rendered Bush ineligible to 

participate in college football, he continued to play for USC. 

Based on these allegations and others involving the men’s 

basketball and women’s tennis programs at USC, the NCAA

commenced a sweeping, four-year investigation into possible 

violations of NCAA legislation in USC’s intercollegiate athletics 

program.

III. The operative statement

At the close of the enforcement process, the COI issued its 

67-page infractions report containing numerous findings and 

imposing significant sanctions against USC’s football program.

Five pages of the COI report concerned McNair, the 

running backs’ coach. Specifically, the NCAA’s COI found in the 

operative statement at issue here:
5

“At least by January 8, 2006, the assistant football coach 

[McNair] had knowledge that [Bush] and [Lake and Michaels] 

likely were engaged in NCAA violations. At 1:34 a.m. he had a 

telephone conversation for two minutes and 23 seconds with 

[Lake] during which [Lake] attempted to get [McNair] to convince 

[Bush] either to adhere to the agency agreement or reimburse 

[Lake and Michaels] for money provided to [Bush] and his family. 

Further, during his September 19, 2006, and February 15, 2008, 

interviews with the enforcement staff, [McNair] violated NCAA 

ethical conduct legislation by providing false and misleading 

information regarding his knowledge of this telephone call and 

the NCAA violations associated with it. [McNair] failed to alert 

the institution’s compliance staff of this information and later 

attested falsely, through his signature on a certifying statement, 

that he had no knowledge of NCAA violations.” 

Under the heading “Committee Rationale,” the COI report’s 

ensuing three and a half pages about McNair acknowledged that 

the enforcement staff, USC, and McNair disagreed about the 

facts underlying the COI’s finding against McNair. (Boldface and 

underscore omitted.) 

As support for its finding that McNair violated the NCAA’s 

ethical conduct legislation, the COI report relied exclusively on 

the January 8, 2006 telephone call at 1:34 a.m. between McNair 

and Lake (the late-night call). The operative statement 

continued with:

“The [COI] nonetheless remains particularly troubled by 

the two minute and 32 second telephone call from [Lake] to 

[McNair] that took place at 1:34 a.m. on January 8, 2006. 

[McNair] claimed that he did not remember the phone call and 

denied [Lake’s] description of what was said. The committee 
6

finds [Lake] credible in his report of the call. [Lake] said that he 

phoned [McNair] to ask him to intercede with [Bush] and get him 

to adhere to the agency agreement that he made with [Lake and 

Michaels]. [Lake] said he also told [McNair] that he did not 

intend to lose the money he had given [Bush] and his parents and 

preferred not to go public with the matter and implicate [USC].”

The NCAA confirmed at trial that the late-night call was 

the “linchpin” of the COI’s operative statement that McNair knew 

of the benefits Lake’s agency gave Bush and lied about his 

knowledge to USC and the NCAA. 

The COI report listed facts to justify the COI’s doubt about 

McNair’s credibility. Those facts were: (1) that McNair and Lake 

were both friends with Faizon Love, a comedian and actor, who 

grew up with Lake; (2) a photograph of McNair, Love, Lake, and 

Michaels (the photograph), which was taken on Michaels’ 

telephone and which the NCAA did not believe McNair would 

have agreed to without having at least been introduced to Lake; 

(3) three one-minute telephone calls McNair made to Lake on 

March 29, 2005, despite denying he ever knew or spoke to Lake,

and (4) the late-night call that served as the exclusive basis for 

the finding against McNair. The COI found it implausible that 

McNair would have stayed on the late-night call for two minutes 

and 34 seconds with someone he claimed not to know.2 

2 The NCAA also discussed a party in San Diego in 2005 for 

Marshall Faulk, a running back in the National Football League, 

which both McNair and Lake attended. However, the COI could 

not make an unethical conduct finding against McNair based on 

the information he provided about the San Diego event because of 

unresolved discrepancies in witness reports. Before trial, the 

parties agreed that they would put on very little evidence about 

this San Diego event, for impeachment purposes only.
7

After discussing this evidence causing the NCAA to doubt 

McNair’s credibility, the COI found that the late-night call 

occurred “as described by” Lake (italics added), and therefore that 

McNair violated NCAA ethical conduct legislation by providing 

false and misleading information to the enforcement staff about 

the call and about his knowledge of Lake’s activity. McNair 

unsuccessfully appealed the findings to the Infractions Appeals 

Committee.

As a result of the COI’s findings, the NCAA prohibited 

McNair from engaging in recruiting activities or contacting 

prospective student athletes for one recruiting season, from 

April 29, 2011 to April 28, 2012. The NCAA did not prohibit 

McNair from coaching. However, USC did not renew McNair’s 

contract. McNair had difficulty finding another college or 

professional coaching job and was initially reduced to coaching at 

a local high school.

IV. McNair’s lawsuit

McNair sued the NCAA. The complaint alleged that the 

NCAA’s false and malicious statements that McNair was 

unethical and had committed unethical acts damaged his 

reputation and ruined his career as a college football coach by 

making him toxic to his then employer and to any potential 

future college employers.

As noted, this lawsuit has already come before this court 

three times, resulting in two published opinions.3 By trial, only 

two of the seven causes of action alleged in the complaint

remained, one for defamation to be tried by a jury, and one for 

declaratory relief to be tried by the court.

3 See footnote 1, ante, at page 2.
8

V. The evidence adduced at trial of the late-night call 

A. Lake’s interview

The NCAA enforcement staff did not interview Lake early 

in the investigation because Lake had been jailed for violating 

terms of his probation for an earlier felony conviction. After 18 

months of negotiations, Lake agreed to one interview with the 

enforcement staff. Lake did not testify at trial. Instead, the jury 

heard a recording and received a transcript of Lake’s interview, 

conducted in November 2007 by NCAA Enforcement Staff 

employee Richard Johanningmeier and staff member Angie 

Cretors. 

Asked whether McNair had any reason to believe that Bush 

was involved with him and Michaels, Lake, who was not under 

oath, responded, “Oh, he knew he was, . . . [¶] . . . [j]ust because, 

you know, the whole situation, sports company, Reggie buying 

the car, the room, there’s too any coincidences.” Lake told the 

NCAA interviewers, “I know I told [McNair] because I wanted 

him to know that Reggie was involved and try to let him in on 

some action.” Lake also told the enforcement staff that he called 

McNair a couple of times, including once in January 2006 to get 

his money back. The telephone records show only one call from 

Lake to McNair, the late-night call. Later, Lake could not 

recollect telling McNair that Bush had ownership of the agency.

Focusing particularly on the late-night call that formed the 

basis of the operative statement that McNair “had knowledge” of 

the improper benefits and the agency relationship, the following 

was said in Lake’s interview:

“RJ [Johanningmeier]: Well let me ask you this one, too, 

Lloyd, on, uh, January 8th, 2006, at 1:34 [a.m.], there’s a call, 

McNair call to you for two minutes and 32 seconds. 
9

“LL [Lake]: What time was that? 

“RJ: This is January 8th, 2006, it’s at 1:34 [a.m.], and it’s a 

call, uh, McNair --

“AC [Cretors]: Coach doesn’t understand why people are 

calling at 1:34.

“RJ: -- McNair makes a call to you at 2:32 [sic]. I was 

asleep at that time -- 

“LL: Yeah. 

“RJ: -- personally, but, but in your case --

“LL: I think that was like, that was like him trying to 

resolve it, you know, and like [Bush is] wrong, he should make it 

right and basically don’t implement [sic] the school. 

“RJ: Because this, this is 2006 we’re talking about. 

“LL: Yeah, that’s when I went to jail, that’s when 

everything started falling apart, I mean, it fell apart. 

“RJ: What can you tell us that you specifically recall about 

that conversation with him? 

“LL: Uh, just telling about [Bush] and all, he knew about 

the money he took, he knew that he had an agreement and --

“AC: . . . McNair indicated to you in the telephone 

conversation that he was aware that [Bush] took money --

“LL: I mean, he knew --

“AC: -- from you? 

“LL: -- yeah bec [sic], he knew Reggie took money from me. 

There’s no doubt he knew about that. 

“RJ: And why do you say that? 

“AC: Yeah, we need to know why you, why you believe that 

[McNair] knew that? 

“LL: ‘Cause he was around a lot and, you know, it’s like he 

watched me get them guys, his friends, hotel rooms, [Bush] told 
10

me he knew about certain things he was doing but he’s cool. You 

know what I mean? It’s like basically through [Bush] --

“AC: [Bush] said he --

“LL: -- ‘cause I told [Bush] you shouldn’t be having the, no, 

he’s cool, the coach, that’s my, he’s my friend. He’s not -- ” 

(Italics added.) 

The enforcement staff had the telephone records of both 

McNair and Lake, which showed that the late-night call was 

initiated by Lake, not by McNair. Cretors testified that Lake 

adopted the mistake and gave a motivation to McNair for calling 

him when McNair did not make the telephone call. Cretors 

testified she was initially skeptical of Lake because of his 

criminal history. She explained that Lake was not covered by the 

cooperative principle and was under no obligation to talk to the 

NCAA. The enforcement staff did not interview Michaels. The 

record contains no testimony from Bush.

B. McNair’s interview 

The NCAA enforcement staff interviewed McNair in 

September 2006 while he was an assistant football coach at USC. 

McNair did not retain an attorney because he did not think he 

needed one. He told the enforcement staff that he had next to no 

contact with Bush outside of practices and games, and he did not 

recall meeting or speaking to Michaels. Asked whether he had 

ever met Lake, McNair responded, “ ‘Not to my knowledge.’ ” 

McNair stated, “I don’t ever recall talking to Lloyd Lake in my 

life.”

A second interview of McNair by the enforcement staff 

occurred three months after Lake’s interview, in February 2008. 

As he was not told he was under investigation, McNair did not 

retain counsel. Johanningmeier asked McNair whether he 
11

remembered the two minute and 32 second telephone call at 1:32 

a.m. with Lake on January 8, 2005. McNair stated he did not 

remember that call, which had occurred in 2006. Trying to 

recollect it, McNair explained that in January 2005, after the 

Orange Bowl Championship, he could have been on the road 

recruiting. Realizing that they had gotten the year of the latenight call wrong, the enforcement staff considered reinterviewing 

McNair using the date of 2006 instead of 2005, and giving 

McNair the context of the call so he might better remember. 

However, the enforcement staff decided not to interview McNair 

again. The NCAA did not base its unethical conduct finding on 

this interview.

C. The COI hearing

At the close of its hearing, held over three days in 2010, the 

COI began deliberations and made various findings concerning 

USC, but was unable to reach a determination about McNair. 

To make a finding against an institution such as USC, the 

NCAA had to find either a loss of institutional control or that an 

employee knew about a rules violation and failed to report it. 

Some voting members of the COI expressed difficulty with the 

interviews of McNair and Lake. One called the Lake interview 

“choppy;” one said the McNair interview was “botched” because 

the dates were wrong; another said the record was “recklessly 

constructed”, and one said the investigation had “fallen short.” 

One member observed that Lake even had difficulty recalling 

McNair’s name until the enforcement staff prompted him. Some 

members noted that the question was whether McNair actually 

knew about Lake’s agency and the benefits Lake gave Bush, 

which would make lies out of McNair’s denials to the 

investigators. One member found no evidence that McNair was 
12

personally involved or had specific knowledge of any wrongdoing. 

Nonetheless, the COI ultimately agreed to the operative 

statement as written.

D. McNair’s trial testimony

At trial, McNair testified about the evidence the COI report 

cited as showing his lack of credibility, namely, the photograph, 

the three calls, and the late-night call. 

As for the photograph, McNair testified that throngs of 

people would come to downtown Los Angeles after a Saturday 

USC football game and wanted to see celebrities. McNair would 

bring along his friend Faizon Love. McNair has posed for so 

many pictures that he could not remember the photograph in 

particular. 

Telephone records showed McNair made three one-minute 

calls to Lake over a 17-minute period on October 29, 2005. 

McNair testified that Bush was hosting the number-one highschool recruit in the country, but Bush’s cellphone was running 

out of battery and so he gave McNair a different number to use to 

reach him. Telephone records revealed that the number belonged 

to Lake. McNair learned that Bush had left the recruit alone in a 

downtown Los Angeles hotel room. In an effort to locate Bush, 

McNair made three quick calls to the number Bush gave him and 

assumed at trial that he reached Bush on the third try. McNair 

recalled the events of October 29, 2005 because the recruit did 

not sign with USC after being left alone that night. 

The late-night call was the only one Lake made to McNair. 

McNair testified that to the best of his knowledge, he had never 

met Lake. As late as trial, McNair could not remember what the 

late-night call was about. McNair explained that he would have 

remembered the call had Lake related his agency relationship 
13

with Bush. In McNair’s words, USC had “the most-high profile 

team in the country” back then and “everything we did was . . . 

news.” Had Lake told McNair about the improper benefits, “that 

would have been a profound phone call”; it “would have 

threatened everything we had worked for,” and so he would have 

remembered it. 

McNair did not learn about the agency relationship or the 

improper benefits Bush received from Lake during the night of 

the three calls or during the late-night call. McNair testified he 

first learned when it was announced on the news.

VI. The jury finds in favor of the NCAA

The jury heard the testimony of members and employees of 

the NCAA and McNair, among others. The jury also had, inter 

alia, the photograph, the telephone records, the COI report, and 

the transcript of the Lake interview.

Initially, the jury was deadlocked at a vote of eight to four. 

The trial court then learned that one of the jurors had a language 

issue that made it difficult to fully participate in the 

deliberations. That juror was removed by the court and replaced 

with an alternate. Soon thereafter, the jury returned a nine-tothree defense verdict finding that the NCAA’s statements about 

McNair were not false.

VII. The declaratory relief judgment

In his seventh cause of action, McNair sought a declaration 

that the NCAA’s rules and regulations, as written and as applied 

to McNair, were arbitrary, capricious and in violation of all 

notions of fairness and good faith, and asked that they be 

stricken. After the jury verdict, the trial court entered a 

declaratory judgment in favor of McNair. The court found that 
14

the “Show‐Cause Order” provisions in the NCAA bylaws under

which McNair was penalized, and which were a substantial factor

in his suffering continuing harm, “are void in California as they 

constitute an unlawful restraint on engaging in a lawful 

profession pursuant to Cal. Business and Professions Code 

section 16600.” (Boldface omitted.)

VIII. The new trial motion

McNair moved for a new trial of the defamation cause of 

action on the grounds of the insufficiency of the evidence to 

justify the verdict (Code Civ. Proc., § 657, subd. (6)),4 the 

disqualification of a juror on the basis of an irregularity in the 

proceeding (§ 657, subd. (1)), jury misconduct (§ 657, subd. (2)), 

and error in law (§ 657, subd. (7)). The trial court granted 

McNair’s motion for new trial on all proffered grounds and 

ordered a new trial. The NCAA timely appealed from both the 

declaratory judgment and the new trial order. 

DISCUSSION

I. The new trial order.

The NCAA contends that the new trial order was error. We 

discern no abuse of discretion in the order granting the new trial 

motion on the ground of insufficiency of the evidence to justify the 

jury verdict. (§ 657, subd. (6).) 

A. Standard of review

“ ‘The determination of a motion for a new trial rests so 

completely within the court’s discretion that its action will not be 

disturbed unless a manifest and unmistakable abuse of discretion 

4 All further statutory references are to the Code of Civil 

Procedure.
15

clearly appears. This is particularly true when the discretion is 

exercised in favor of awarding a new trial, for this action does not 

finally dispose of the matter.’ ” (Simers v. Los Angeles Times 

Communications LLC (2018) 18 Cal.App.5th 1248, 1275.) As 

established by the Supreme Court in Lane v. Hughes Aircraft Co. 

(2000) 22 Cal.4th 405, 412 (Lane), an order granting a new trial 

motion under section 657 for insufficiency of the evidence to 

justify the verdict “ ‘must be sustained on appeal unless the 

opposing party demonstrates that no reasonable finder of fact 

could have found for the movant on [the trial court’s] 

theory.’ [Citation.] Moreover, ‘[a]n abuse of discretion cannot be 

found in cases in which the evidence is in conflict and a verdict 

for the moving party could have been reached . . . .’ [Citation.] In 

other words, ‘the presumption of correctness normally accorded 

on appeal to the jury’s verdict is replaced by a presumption in 

favor of the [new trial] order.’ ”

“The only relevant limitation on this discretion is that the 

trial court must state its reasons for granting the new trial, and 

there must be substantial evidence in the record to support those 

reasons.” (Lane, supra, 22 Cal.4th at p. 412.) 

The NCAA contends that we should not apply the 

deferential standard of review delineated in Lane. It quotes from 

section 657 which prohibits a new trial on the ground of 

insufficiency of the evidence to justify the verdict “unless after 

weighing the evidence the court is convinced from the entire 

record, including reasonable inferences therefrom, that the court 

or jury clearly should have reached a different verdict or 

decision.” (Italics added.) Citing County of Riverside v. Loma 

Linda University (1981) 118 Cal.App.3d 300, the NCAA argues

that the statement of decision here did not utilize the word 
16

clearly in ruling that “the jury should have answered question 3 

‘YES,’ ” with the result that rather than deferring to the trial 

court’s ruling, we must independently examine the evidence on 

which the jury relied. The contention is unavailing.

In County of Riverside v. Loma Linda University, supra, 

118 Cal.App.3d 300, the trial court told the jury at the conclusion 

of trial that it disagreed with the jury’s finding on the existence of 

a joint venture but denied a new trial motion brought on that 

ground. (Id. at p. 322.) In affirming the denial of a new trial, the 

appellate court stated simply, “the judge did not say that he 

thought the jury ‘clearly’ should have reached a different verdict. 

The fact that he said he would have ruled differently had he been 

deciding the case does not indicate an abuse of discretion.” (Ibid.) 

While the failure to use the word clearly may have justified the 

denial of a new trial motion, the absence of the word clearly does 

not undermine the grant of a new trial when, as explained in 

Lane, supra, 22 Cal.4th at page 412, the trial court has stated its 

reasons for granting the new trial, and substantial evidence 

supports those reasons. 

As the NCAA implicitly acknowledges by citing Oakland 

Raiders v. National Football League (2007) 41 Cal.4th 624, the 

appellate court independently reviews the record only when the 

trial court fails to provide a statement of reasons; otherwise we 

apply the Lane standard. (Id. at pp. 636, 640–641.) In Oakland 

Raiders, the trial court’s statement of decision did not specify any 

reasons for its decision to grant a new trial on the basis of juror 

misconduct. (Id. at p. 632.) The Supreme Court explained that 

the statement of reasons required by section 657 “should be 

specific enough to facilitate appellate review and avoid any need 

for the appellate court to rely on inference or speculation.” (Id. at 
17

p. 634.) In the absence of a sufficiently specific statement of 

reasons, the applicable standard of review is independent 

judgment rather than abuse of discretion. (Id. at p. 640.) 

Here the order for new trial contained a lengthy statement 

of reasons that is not vitiated by the omission of the word clearly. 

Spanning four and one-half, single-spaced pages, the statement of 

reasons properly discussed the evidence, the credibility of 

witnesses, the weight of the evidence, and the trial court’s 

rationale for finding “several material ways” in which the COI 

report’s operative statement was false. The court then used 

stronger language than the word clearly, ruling that it was 

“convinced from the entire record, including reasonable inferences 

therefrom, that the jury should have answered question 3 ‘YES.’ ” 

(Italics added.) Addition of the word clearly would have been

redundant. The statement of reasons manifestly met the 

Oakland Raiders requirement and so we apply the abuse of 

discretion standard outlined in Lane.

Under the Lane standard of review, we “ ‘defer to the trial 

court’s resolution of conflicts in the evidence if the decision is 

supported by substantial evidence and reverse only if there is no 

reasonable basis for the court’s decision or the decision is based 

on a legal error. [Citations.] [¶] An order granting a new trial 

“will not be disturbed unless a manifest and unmistakable abuse 

of discretion clearly appears.” ’ ” (Johnson & Johnson Talcum 

Powder Cases (2019) 37 Cal.App.5th 292, 336–337.) “An abuse of 

discretion occurs if, in light of the applicable law and considering 

all of the relevant circumstances, the court’s decision exceeds the 

bounds of reason and results in a miscarriage of justice.” 

(Fassberg Construction Co. v. Housing Authority of City of Los 

Angeles (2007) 152 Cal.App.4th 720, 763.) This means that the 
18

“well-known rules” governing review of orders granting or 

denying a new trial motion “are designed to affirm the trial 

court’s ruling.” (David v. Hernandez (2014) 226 Cal.App.4th 578, 

581.) Affirmance is more likely when the trial court grants a new 

trial. (Sandco American, Inc. v. Notrica (1990) 216 Cal.App.3d 

1495, 1506.) Under the operative standard of review, so “ ‘ “long 

as a reasonable or even fairly debatable justification under the 

law is shown for the order granting the new trial, the order will 

not be set aside.” ’ ” (Johnson & Johnson, at p. 337.)

B. The new trial order was not an abuse of trial court 

discretion.

The jury found in special verdict question Nos. 1 and 2, 

that the NCAA made statements of fact to third persons who 

reasonably understood that the statements were about McNair. 

Thus, the basis for the defense verdict was the jury’s nine to 

three no vote on question No. 3, “With respect to the statements 

for which you answered Yes in Question 2, were any of the 

statements false?” 

The NCAA acknowledges that the late-night call was the 

“linchpin” on which it sanctioned McNair, and the only evidence 

of the content of the late-night call was the Lake interview. 

Comparing the operative statement to the transcript of Lake’s

interview, the court found that the operative statement’s 

summary of the late-night call was “false in at least the following 

ways:” (1) it falsely stated who initiated the call; (2) it falsely 

related the purpose Lake ascribed to the call; and (3) it falsely 

stated that McNair and Lake discussed the agency agreement 

and improper benefits during the late-night call. Therefore, the 

court found the operative statement did not “paraphrase” the 

Lake interview, but was “a fictional account of the Lake version” 
19

of the late-night call that was the impetus for the sanctions 

imposed on McNair. 

The statement of reasons focused on the credibility, 

admissibility, and weight of the evidence. On the one hand the 

trial court found McNair “to be a credible witness.” On the other 

hand, the court observed that Lake did not testify at trial, and 

that the transcript of Lake’s interview was inadmissible, as it 

was not given under oath, it contained hearsay, and at times 

double hearsay, and it was only admitted to show the basis for 

the operative statement. The court called Lake’s interview 

answers “unclear and unresponsive to the point of being 

unreliable,” and “impossibly vague.” Therefore, the court 

concluded that McNair’s denial that he had knowledge of Lake’s 

payoffs to Bush “was not credibly rebutted or impeached” and so 

the NCAA’s evidence about what was said in the late-night phone 

call was insufficient to justify the verdict.

We discern no abuse of discretion. The NCAA 

acknowledges that the only support for the operative statement’s 

finding that McNair “had knowledge” of NCAA violations was the 

late-night call, the so-called “linchpin.” The only evidence 

adduced about what was said during the late-night call was the 

transcript of Lake’s interview. Viewing the transcript along with 

the inferences the trial court drew according to the required rules 

(see Lane, supra, 22 Cal.4th at p. 412), the court reasonably 

found it did not support the operative statement. 

The NCAA’s brief focuses only on the first two of the trial 

court’s reasons for finding falsity and on the court’s observation 

that Lake’s interview was sloppy. The NCAA argues the latenight call occurred and so whether Lake said he called McNair or 

vice versa, whether Lake wanted McNair to enforce an agency 
20

agreement or tell Bush to return the improper benefits to Lake, 

and the fact that the court would have interviewed Lake 

differently, are “inconsequential points” and a “red herring” that 

do not undercut the jury’s finding.5 

However, the transcript of the Lake interview supports the 

trial court’s findings. Contrary to the operative statement, it was 

Johanningmeier, not Lake, who said “McNair makes a call to you 

[Lake].” The significance of this incorrect assertion is that in 

response, Lake, who did not appear to remember the call, 

attributed a motive to McNair for calling—knowledge of the 

agency and benefits—when McNair had not made the call. 

Cretors acknowledged this at trial. As the court reasonably 

observed, “McNair could have had no purpose in making an 

unmade phone call.” Indeed, Lake appeared to be guessing at the 

late-night call’s topic, stating, “I think that was like, that was 

like him trying to resolve it.” 

Far from being inconsequential, these points—who made 

the late-night call, and the purpose of the call—constitute core 

elements of the statement of reasons because they are the 

5 McNair argues that our opinion in McNair II, which 

rejected these same arguments, is law of the case to which we are 

bound. In that earlier appeal, we affirmed the denial of the 

NCAA’s special motion to strike McNair’s libel cause of action 

(§ 425.16) on the ground, in part, that McNair provided evidence 

demonstrating “prima facie that the operative statement could 

reasonably be interpreted as implying a provably false assertion 

of fact.” (McNair II, supra, B245475.) Law of the case does not 

help McNair. That doctrine applies only to appellate courts’ 

decisions on issues of law; it does not apply to questions of fact

(People v. Barragan (2004) 32 Cal.4th 236, 246), such as whether 

McNair proved at trial that the operative statement was false. 
21

evidence for the operative statement’s assertion that McNair 

knew about the improper benefits and agency agreement. Lake 

gave an unresponsive and vague answer to the question whether 

McNair had indicated in the late-night call that he knew that 

Bush was taking money: “I mean, he knew.” And, although Lake 

said that McNair “knew,” he did not base this statement on 

anything that was said during the late-night call, but on 

assumption drawn from events that did not occur during the latenight call. When asked directly why he believed McNair knew, 

Lake responded that the reason was that McNair was “around a 

lot” and “watched [Lake] get them guys, his friends hotel rooms,” 

“basically through Reggie.” (Italics added.) In fact, Lake ended 

by giving a hearsay response: “Reggie told me he knew.” From 

this transcript, the trial court reasonably inferred its third falsity 

finding: namely, that contrary to the operative statement, Lake 

did not state that he and McNair discussed the improper benefits 

and agency agreement during the late-night call. 

More important, however, apart from the trial court’s 

finding that the Lake interview failed to give substantive support 

for the operative statement’s assertions, the weight the court 

ascribed to the evidence along with the trial court’s evidentiary 

findings, are fatal to the NCAA’s challenge to the new trial order. 

The court found McNair’s denials that he knew of the improper 

benefits and agency agreement to be credible. In contrast it gave 

no evidentiary weight to Lake’s interview. Finding Lake’s 

answers to be unclear, unreliable, speculative, vague, and so 

unresponsive that they would have been stricken had they been 

made in court, the statement of reasons concluded that the 

interview—the only evidence of the contents of the late-night 

call—was “without evidentiary value to support” the operative 
22

statement, and that “no reasonable trier of fact could have found 

that” the operative statement’s assertions about McNair were 

true based on Lake’s interview. We cannot reassess the weight 

the trial court accords the evidence (Armstrong v. Svoboda (1966) 

240 Cal.App.2d 472, 473), and cannot say that the trial court’s 

assessment of the evidence was unreasonable. And, the NCAA 

raises no challenge on appeal to the court’s evidentiary rulings. 

Lake was unsworn, was not subject to the cooperative principle, 

gave hearsay responses (Bush “told me he knew”), and was 

frequently interrupted by the interviewers so that it is difficult to 

ascertain what question he was responding to. Cretors was 

initially skeptical of Lake because he was not subject to the 

cooperative principle. Without support from Lake’s interview, 

the trial court reasonably found there was no “credible basis for 

the jury to have found” the statements “were other than false.”

The result of the credibility assessment, along with the 

weight the court gave to, and the inferences it derived from, the 

evidence pursuant to section 657, is inescapable: McNair’s 

credible denials render false the operative statement’s assertions 

that he knew about the NCAA violations, and so McNair carried 

his burden at trial to prove falsity. (See CACI No. 1701; 

Industrial Waste & Debris Box Service, Inc. v. Murphy (2016) 

4 Cal.App.5th 1135, 1156.) The NCAA failed to rebut this 

evidence because it relied solely on Lake’s vague, unresponsive, 

unreliable, and inadmissible interview responses, that in any 

event did not substantively support the operative statement.

The NCAA contends that the trial court failed to account 

for former CACI No. 1729, the substantial truth instruction given 

to the jury. That instruction “ ‘absolve[s] a defendant even if she 

cannot “justify every word of the alleged defamatory matter; it is 
23

sufficient if the substance of the charge be proved true, 

irrespective of slight inaccuracy in the details.” ’ ” (Reed v. 

Gallagher (2016) 248 Cal.App.4th 841, 860–861.) The NCAA 

points to elsewhere in the interview transcript—not mentioned in 

the statement of reasons—in which Lake said he called McNair a 

couple of times, and once in January 2006 to “get this resolved, 

just get my money back and make it right.” Relying on 

Dominguez v. Pantalone (1989) 212 Cal.App.3d 201, 216, the 

NCAA insists that where some evidence in the record supports

the verdict, the court was “not entitled” to reverse simply because 

it would have found contrary to the jury, that there was no

evidence to justify the verdict.

The argument misapplies the standard of review. It has 

long been the law that the trial court ruling on a motion for new 

trial “sits . . . as an independent trier of fact” (Neal v. Farmers 

Insurance Exchange (1978) 21 Cal.3d 910, 933), or “ ‘ “as a 

thirteenth juror,” ’ asking whether ‘ “the weight of the evidence 

appears to be contrary to the jury’s determination” ’; in so doing, 

the court is free to ‘ “disbelieve witnesses, reweigh the evidence, 

and draw reasonable inferences therefrom contrary to those of the 

trier of fact.” ’ ” (Licudine v. Cedars-Sinai Medical Center (2016) 

3 Cal.App.5th 881, 900, italics added.) The trial court detailed its 

reasons for according Lake’s interview—the only evidence of the 

content of the late-night call—no evidentiary weight. As the 

record supports that finding, the trial court reasonably concluded 

there was no evidence for the operative statement’s assertion 

that McNair “had knowledge” of the NCAA violations and 

therefore no evidence to support the jury verdict.

The NCAA also argues that the statement of reasons 

focused on “minor details” that “offered no insight into the COI 
24

report’s key conclusion—that McNair had committed improper 

conduct by lying to NCAA investigators about his relationship 

with Lake.” (Italics added.) The NCAA lists the photograph and 

the three telephone calls on March 29, 2005 to show that Lake 

and McNair interacted, and argues that McNair’s defamation 

claim “hinged on whether the jury believed that McNair had lied 

to NCAA investigators when he claimed that [he] had never 

known or spoken to Lake.” (Italics added.)

As an initial matter, McNair did not deny outright knowing 

Lake; he denied recalling ever speaking to or meeting the man. 

That testimony goes to McNair’s credibility, which under the 

procedural posture here is a question for the thirteenth juror, and 

which in any case does not shed light on McNair’s “knowledge of” 

the NCAA violations. Moreover, McNair’s testimony, credited by 

the trial court, showed the superficiality of the above-referenced 

interactions with Lake. McNair made three one-minute calls to a 

number Bush gave him to locate Bush who had abandoned a 

recruit, and McNair could not remember the photograph in 

particular given so many photographs were taken after USC 

football games, especially of his friend and celebrity Love. Nor 

does the fact that Love grew up with Lake reveal what McNair 

knew. 

More to the point, however, the question for the jury to 

resolve was not whether McNair lied about having a 

“relationship,” known, spoken to, or interacted with, Lake. 

Rather, as some of the COI members recognized, the issue was 

whether McNair knew about Lake’s agency and the benefits he 

gave Bush and violated NCAA legislation by lying about that 

knowledge and failing to report that knowledge to USC. No 

amount of circumstantial evidence about interactions between 
25

McNair and Lake proved to the trial court what they spoke about 

or what McNair knew such that it would support the operative 

statement’s finding that he did know. That the two men may 

have spoken, may have had a celebrity friend in common, and 

posed for the same photograph are manifestly not evidence that 

McNair “had knowledge of” the agency and improper benefits, 

which is the only way his denials would violate NCAA rules. 

The trial court abuses its discretion in ruling on a new trial 

motion only if there is no reasonable basis for its ruling or the 

court committed legal error. (Johnson & Johnson Talcum 

Powder Cases, supra, 37 Cal.App.5th at p. 336.) The NCAA has 

failed to demonstrate an abuse of discretion.

II. The declaratory judgment

It is well-established that an order granting a new trial 

vacates the entire judgment (Pacific Corporate Group Holdings, 

LLC v. Keck (2014) 232 Cal.App.4th 294, 302), with the result 

that the portions of the judgment that are not related to the new 

trial order must await review in an appeal from the final 

judgment. (Id. at p. 305.) In its reply brief, the NCAA 

acknowledges that we may consider the merits of its appeal from 

the declaratory judgment if we reverse the new trial order. As we 

conclude that the new trial order must be affirmed, we have no 

jurisdiction to consider the NCAA’s challenge to the declaratory 

judgment.
26

DISPOSITION

The order is affirmed. The National Collegiate Athletic 

Association to bear the costs of appeal.

NOT TO BE PUBLISHED. 

DHANIDINA, J.

We concur:

EDMON, P. J.

EGERTON, J.