Filed 12/18/19; Opinion following transfer from Supreme Court

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

FREDERICK THEODORE 

RALL III, 

Plaintiff and Appellant,

v.

TRIBUNE 365, LLC, et al.,

Defendants and Respondents.

 B284566

 (Los Angeles County

 Super. Ct. No. BC613703)

APPEAL from orders of the Superior Court of Los Angeles 

County. Joseph R. Kalin, Judge. Affirmed.

Roger A. Lowenstein; Jeff Lewis Law, Jeffrey Lewis and 

Sean C. Rotstan for Plaintiff and Appellant.

Davis Wright Tremaine, Kelli L. Sager, Rochelle Wilcox, 

Dan Laidman, Diana Palacios; Jeff Glasser, Los Angeles Times 

Communications LLC for Defendants and Respondents.

Jassy Vick Carolan, Jean-Paul Jassy; Nikki Moore and 

David Snyder, for California News Publishers Association and 

First Amendment Coalition as Amici Curiae on behalf of 

Defendants and Respondents.

__________________________
2

SUMMARY

Plaintiff Frederick Theodore Rall III, a political cartoonist

and blogger, sued Los Angeles Times Communications LLC (The 

Times) after it published a “note to readers” and a later more 

detailed report questioning the accuracy of a blog post plaintiff 

wrote for The Times. The Times told its readers that it had 

serious questions about the accuracy of the blog post; that the 

piece should not have been published; and that plaintiff’s future 

work would not appear in The Times. Plaintiff sued The Times, 

related entities, and several individual defendants, alleging 

causes of action for defamation and for wrongful termination in 

violation of public policy, among other claims. 

All defendants filed anti-SLAPP (strategic lawsuit against 

public participation) motions to strike plaintiff’s complaint (Code 

Civ. Proc., § 425.16). The trial court granted the motions. In our 

original published opinion filed January 17, 2019, we affirmed 

the trial court’s orders. Plaintiff filed a petition for review with 

the Supreme Court. The Supreme Court granted review and 

deferred further consideration pending its disposition in Wilson v. 

Cable News Network, Inc. (2019) 7 Cal.5th 871 (Wilson). 

After the issuance of its decision in Wilson, the Supreme 

Court, by order dated September 25, 2019, transferred the matter 

to this court for reconsideration in light of Wilson. Having done 

so, we again affirm the trial court’s orders.

FACTS

We summarize the facts, and then describe the moving and 

opposition papers. We will elaborate on the facts as necessary in 

our discussion of the legal issues.
3

1. The Plaintiff and the Publications

Plaintiff is a freelance editorial cartoonist who lives in New 

York, and is “one of the most widely syndicated cartoonists in the 

United States.” He is the author of 19 books, including a New 

York Times bestselling comics biography. Between 2009 and 

2015, his cartoons were drawn exclusively for The Times, but 

after his work was published in The Times, he was free to publish 

it elsewhere. Beginning in 2013, plaintiff also wrote blog posts 

for publication in conjunction with his cartoons. Plaintiff drew 

about 300 cartoons and wrote about 150 blog posts for the Times. 

As of 2013, he was paid $200 for each cartoon and $100 for each 

blog post. He drew numerous cartoons criticizing the police in 

general, the Los Angeles Police Department (LAPD) in 

particular, and then-LAPD Chief Charles Beck specifically. 

a. Plaintiff’s May 2015 blog post

In May 2015, the LAPD was enforcing the city’s laws 

against jaywalking, and The Times reported on the effects of

costly jaywalking fines on poor and working class Angelenos. 

After that report, plaintiff submitted and The Times published a 

cartoon mocking the LAPD for its jaywalking policy (“LAPD’s 

Crosswalk Crackdown; Don’t Police Have Something Better to 

Do?”), along with a May 11, 2015 blog post that described

plaintiff’s own arrest for jaywalking in 2001. 

In the blog post, plaintiff wrote that he had crossed the 

street properly (“I was innocent of even jaywalking”) when a 

motorcycle officer “zoomed over, threw me up against the wall, 

slapped on the cuffs, roughed me up and wrote me a ticket. It 

was an ugly scene, and in broad daylight it must have looked like 

one, because within minutes there were a couple of dozen 

passersby shouting at the cop. [¶] Another motorcycle officer 
4

appeared, asked the colleague what the heck he was thinking and 

ordered him to let me go, which he did. But not before he threw 

my driver’s license into the sewer.” Plaintiff’s blog also stated he 

had filed a formal complaint with the LAPD, and when he called 

a few months later, he was told the complaint had been 

dismissed, and “[t]hey had never notified me.” 

b. The Times’s July 2015 “note to readers”

On July 28, 2015, The Times published, in its opinion

section, an “Editor’s Note[:] A note to readers.” The note to 

readers described plaintiff’s May 11, 2015 blog post, and then 

described records that the LAPD provided to The Times about the 

incident plaintiff had recounted in his blog post. These included 

the complaint plaintiff filed at the time, and “[a]n audiotape of 

the encounter recorded by the police officer.” 

The note to readers stated the audiotape “does not back up 

[plaintiff’s] assertions; it gives no indication that there was 

physical violence of any sort by the policeman or that [plaintiff’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.” The note to readers continued:

“In [plaintiff’s] initial complaint to the LAPD, he describes 

the incident without mentioning any physical violence or 

handcuffing but says that the police officer was ‘belligerent and 

hostile’ and that he threw [plaintiff’s] license into the ‘gutter.’ 

The tape depicts a polite interaction. [¶] In addition, [plaintiff] 

wrote in his blog post that the LAPD dismissed his complaint 

without ever contacting him. Department records show that 

internal affairs investigators made repeated attempts to contact 

[plaintiff], without success. [¶] Asked to explain these 

inconsistencies, [plaintiff] said he stands by his blog post. [¶] As 
5

to why he didn’t mention any physical abuse in his letter to the 

LAPD in 2001, [plaintiff] said he didn’t want to make an enemy 

of the department, in part because he hosted a local radio talk 

show at the time. After listening to the tape, [plaintiff] noted 

that it was of poor quality and contained inaudible segments.”

The note to readers concluded: “However, the recording 

and other evidence provided by the LAPD raise serious questions 

about the accuracy of [plaintiff’s] blog post. Based on this, the 

piece should not have been published. [¶] [Plaintiff’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.” 

c. The Times’s August 2015 report reaffirming

its decision that plaintiff’s blog post did not

meet its standards

On August 19, 2015, in response to questions from readers, 

The Times published a piece that provided “a detailed look at the 

matter by Times editors” (the Times report). After describing the 

blog post and its note to readers, the Times report stated that 

plaintiff had “complained that The Times acted unjustly, based 

on flawed evidence,” and “demanded that the paper retract its 

note to readers and reinstate him as a contributor. [¶] In 

response, The Times has reexamined the evidence and found no 

basis to change its decision.” 

The Times report recounted the evidence The Times

examined, and makes these principal points.
6

i. Plaintiff’s complaint to the LAPD and

his later descriptions of the incident

Plaintiff’s original complaint to the LAPD, “written days 

after the jaywalking stop, when the encounter was fresh in his 

mind,” “accused the officer of rudeness but not of any physical 

abuse.”1 “In published accounts years later, [plaintiff] added 

allegations that the officer handcuffed and manhandled him, that 

a crowd of two dozen onlookers shouted in protest at the 

mistreatment and that a second officer arrived and ordered his 

colleague to let [plaintiff] go.”2

1 The Times report provided further details of plaintiff’s 

letter of complaint to the LAPD. Plaintiff stated he had not 

jaywalked, the officer (Willie Durr) became “ ‘belligerent and 

hostile’ when [plaintiff] asked him how to deal with the citation,” 

Officer Durr “refused to answer when asked if the ticket could be 

paid by mail and then threw [plaintiff’s] driver’s license into the 

gutter.” Plaintiff asked the LAPD “to consider dismissing Durr, 

whom he described as ‘an ill-tempered excuse for a police officer’ ” 

who “exhibited ‘vile rudeness.’ ” Plaintiff “compared the officer 

unfavorably to Taliban fighters who [plaintiff] said had detained 

him briefly while he was on a reporting trip ‘near the Afghan war 

zone.’ ” Plaintiff did not accuse the officer “of using force against 

him or putting him in handcuffs.” 

2 Plaintiff’s later accounts (in 2005, 2006, 2009 and the 

May 2015 blog post) offered varying descriptions of the 

jaywalking stop. The Times report described a 2005 column in 

the Boise Weekly about “pervasive police dishonesty,” where 

plaintiff “cited his jaywalking case as an example, writing that 

Durr handcuffed and ticketed him even though he had crossed 

the street legally with a ‘walk’ signal,” saying the LAPD 

“ ‘repeatedly ignored my complaints about this unprofessional 
7

ii. The LAPD records

The Times report recounted that after plaintiff’s May 11, 

2015 blog post, “the LAPD contacted The Times to challenge 

[plaintiff’s] account.” The LAPD “had investigated [plaintiff’s] 

complaint in January 2002,” and provided The Times with 

plaintiff’s letter of complaint about Officer Willie Durr and other 

documents. These included “a report by Durr’s then-supervisor, 

Sgt. Russell Kilby, who investigated the allegations; and a log of 

calls Kilby made in unsuccessful attempts to reach [plaintiff]. [¶] 

The LAPD also provided a copy of an audio recording of the 

goon.’ ” In a 2006 post on his personal blog, plaintiff “invoked the 

jaywalking ticket as an example of how police abuse citizens and 

get away with it: ‘An African-American cop cuffed me, threw me 

up against the wall and roughed me up before writing me a ticket 

and letting me go.’ [¶] [Plaintiff] wrote: ‘I was polite. I didn’t 

resist. I’m not stupid; the guy has the legal right to shoot me. 

Anyway, I filed an Internal Affairs complaint. Guess what 

happened? [¶] If you’re black and reading this, you know the 

answer: Nada. Cops get away with murder all the time.’ ” In a 

2009 column, “headlined ‘Everyone hates the cops,’ . . . he wrote: 

‘I admit it: I don’t like cops.’ [Plaintiff] said he couldn’t ‘point to 

a single positive experience I’ve ever had with a cop,’ adding that 

he’d had ‘lots and lots of negative ones.’ ” Citing his 2001 

jaywalking ticket, “[h]e wrote that Durr roughed him up and 

threw his wallet—not merely his license—into the sewer, and 

that the officer then ‘laughed and zoomed off on his motorcycle.’ ” 

The Times report then points out that plaintiff’s 2015 blog post 

included items that did not appear in the 2005, 2006 and 2009 

accounts: the “crowd of two dozen passersby who shouted at 

Durr,” and the “second motorcycle officer [who] drove up, rebuked 

Durr and ordered him to let [plaintiff] go.” 
8

jaywalking stop made by Durr,” as well as a second recording 

made by Sgt. Kilby “when he called [plaintiff’s] phone number 

and left a voicemail. On the tape, Kilby is heard saying he had 

left earlier messages to no avail.” 

The Times report describes Officer Durr’s recording. It was 

“made on a micro-cassette recorder and later transferred to a 

digital format, runs about six minutes and includes traffic sounds 

and other background noise. There are extended silences during 

which Durr said he was checking [plaintiff’s] ID and filling out 

the citation. [¶] A conversation between Durr and [plaintiff] is 

audible, and it is civil. Durr is not heard being rude, ‘belligerent,’ 

‘hostile’ or ‘ill-tempered,’ as [plaintiff] has asserted. The officer is 

heard calmly answering [plaintiff’s] questions. [¶] Neither man 

is heard to raise his voice at any point. Nor does [plaintiff] 

express any complaints about how is he [sic] being treated. [¶] 

Early in the encounter, Durr asks [plaintiff] to remove his ID 

from his wallet. Later, after he has filled out the citation, Durr 

says: ‘I need you to go ahead and sign. . . . You’re not admitting 

guilt.’ [¶] Soon after, the officer says: ‘Here’s your license back.’ 

[¶] About halfway through the recording, faint voices can be 

heard in the background for about a minute and a half. The 

comments are unintelligible on the LAPD tape. [¶] The 

recording ends on a seemingly friendly note. [Plaintiff] appears 

to ask the officer if he can recommend any restaurants in the 

area. Durr responds that he is new to the neighborhood and 

unfamiliar with ‘the local eateries.’ [¶] Durr is then heard to 

say: ‘All right, have a good day.’ ” 

The Times report indicates that while plaintiff repeatedly 

wrote that the LAPD ignored his complaint, “[d]epartment 

records show that investigators looked into his allegations, 
9

questioned the officer who ticketed [plaintiff], listened to the 

recording and tried repeatedly to reach [plaintiff]. Then-Police 

Chief Bernard C. Parks sent [plaintiff] a letter informing him 

that an investigation had determined his allegations were 

unfounded.” 

iii. The Times’s investigation and

plaintiff’s explanation

The Times report describes several interviews conducted by 

Times reporter Paul Pringle in July 2015. Mr. Pringle 

interviewed Officer Durr, who “said he remembered the 

encounter because it resulted in a complaint against him and an 

investigation. [¶] Durr said he had not roughed up [plaintiff] or 

handcuffed him—in his entire career, he said, he had never 

handcuffed anyone for jaywalking. Durr also said that no second 

officer ever appeared on the scene, and that there was no crowd 

of shouting onlookers. [¶] He said the encounter was free of 

rancor and he was surprised when [plaintiff] filed a complaint. 

[¶] [Sgt.] Kilby, now retired, said in a separate interview that his 

investigation found nothing to support [plaintiff’s] allegations. 

He described Durr as ‘a non-problem officer,’ ‘a nice guy’ and 

‘a hard worker.’ ” 

The Times report recounted that reporter Pringle 

“contacted [plaintiff] and sent him copies of the documents 

provided by the LAPD and a copy of Durr’s audio recording.”

“In two interviews, [plaintiff] told Pringle that he stood by 

his May 11 blog post and that Durr was lying. He verified that 

the voice heard on the tape was his but asserted that the 

recording was of such poor quality that it could not be used to 

challenge his account. [¶] He said the tape ‘only captures a part 

of what’s going on’ and that Durr might have been ‘muffling’ the 
10

recorder at key moments to conceal abusive behavior. [¶] 

[Plaintiff] said he left his most serious allegations against Durr 

out of his complaint to the LAPD because he did not ‘want it to 

become a big deal.’ [¶] ‘I did not want that officer, I did not want 

the LAPD in general, to feel that I was declaring war against 

them,’ he said.”

“[Plaintiff] was asked why he didn’t complain to Durr 

during the encounter about being mistreated. [Plaintiff] said he 

would never complain to a policeman in such circumstances for 

fear that the officer might arrest him, ‘disappear’ him in a jail cell 

for several days without filing charges, or even kill him. [¶] ‘Did 

I think that guy was going to kill me right there and then?’ 

[plaintiff] said. ‘I didn’t know. I don’t know.’ ” Plaintiff “said he 

did not receive any phone message from police,” but 

acknowledged receiving the letter from then-Chief Parks. 

The Times report stated that “Pringle also asked [plaintiff] 

to explain his apparently friendly exchange with Durr after the 

citation was issued, in which he asked the officer to recommend a 

restaurant in the area. [¶] [Plaintiff] said he had been 

‘traumatized’ by the incident and likened his behavior to that of 

‘rape victims calling their rapist back, and—you know, like, days 

later—and wanting to get back together.’ ” 

The Times report then describes plaintiff’s actions after the 

Pringle interviews and its own further investigative activities. It 

stated:

“[[P]laintiff] has attacked The Times in Web posts and 

media interviews, accusing the paper of knuckling under to 

pressure from the LAPD to discredit a critic.” Plaintiff 

“contend[ed] that the LAPD transcript [was] incomplete and that 

faintly audible background noises bolster his account. [Plaintiff] 
11

said he had Post Haste Digital, a Los Angeles company that does 

sound work for the entertainment industry, enhance the 

recording. [Plaintiff] maintains that on the enhanced version, 

two women can be heard midway through the recording 

complaining that [plaintiff] was handcuffed. [Plaintiff] said the 

women were part of a crowd of people who protested his 

treatment. He has published a transcript that he says is 

consistent with this claim.” He and a co-author “wrote that 

six unidentified ‘audio experts’—including both amateurs and 

professionals, according to the post—said they believed the 

recording had been spliced in places.” 

The Times report states that Commander Andrew Smith, 

an LAPD spokesman, “said LAPD experts later enhanced the 

recording and could not hear anyone complain about handcuffs. 

They found no indication that the tape was spliced or otherwise 

altered, he said.” In addition:

“The Times had the recording analyzed by two leading 

experts in audio and video forensics.” One of these, Edward J. 

Primeau, “said that voices heard in the background on 

[plaintiff’s] enhanced version are mostly unintelligible, and that 

he did not detect any mention of handcuffs. He said [plaintiff’s] 

transcript was ‘not accurate.’ ” Mr. Primeau also analyzed the 

LAPD recording and “concluded ‘beyond a reasonable degree of 

scientific certainty’ that the tape had not been spliced or 

otherwise edited.” The second expert, Catalin Grigoras, “said his 

analysis detected no reference to handcuffs”; that “a man and a 

woman can be heard speaking in the background at one point, 

but only a few of their words are intelligible”; they “appear to be 

having a conversation unrelated to the jaywalking stop”; and 
12

“ ‘[i]t is obvious the police officer is not part of that 

conversation.’ ”

3

The Times report concluded by stating The Times 

“continues to have serious questions about the accuracy of 

[plaintiff’s] blog post”; that “[n]o version of the recording, 

including [plaintiff’s] enhanced one, supports the cartoonist’s 

allegations that Durr was violent, hostile, rude and belligerent”; 

and that “Goldberg, the editorial page editor, said that in light of 

all the available information, The Times stands by its note to 

readers and its judgment that [plaintiff’s] May 11 blog post 

should not have been published.” 

2. The Complaint

On March 14, 2016, plaintiff filed his complaint against 

The Times, various related companies, and four individual 

defendants.4 Plaintiff alleged causes of action for defamation, 

defamation per se, and intentional infliction of emotional distress 

against all defendants. He also alleged, against the corporate 

defendants, causes of action for violation of Labor Code section 

1050 (blacklisting) and section 1102.5 (retaliation for disclosing 

information about an employer’s violation of law), breach of 

express oral contract, breach of implied-in-fact contract, and 

3 The Times report also describes the background and 

experience of both experts. 

4 These were Austin Beutner (then publisher of The Times), 

Nicholas Goldberg (editor of The Times’s editorial pages), 

reporter Paul Pringle and Deirdre Edgar (The Times’s readers’ 

representative who wrote the introduction to the Times report). 
13

wrongful termination in violation of public policy. (We refer to 

the corporate entities collectively as The Times.)

Plaintiff’s defamation claims alleged seven “false 

statements” in the note to readers, and 25 “falsities” in the Times 

report. (We recite in the margin the 10 statements plaintiff 

continues on appeal to assert are “false statements.”)

5 The 

5 In his opening brief, plaintiff contends the following 

statements are false statements of fact:

(1) “Since then, the Los Angeles Police Department has 

provided records about the incident, including a complaint 

[plaintiff] filed at the time.” 

(2) “An audiotape of the encounter recorded by the police 

officer does not back up [plaintiff’s] assertions; it gives no 

indication that there was physical violence of any sort by 

the policeman or that [plaintiff’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.” 

(3) “The tape depicts a polite interaction.”

(4) “The Los Angeles Police Department challenged [plaintiff’s]

account and provided documents and a tape recording of 

the 2001 encounter that indicate the officer did not use 

force against [plaintiff] and treated him politely.” 

(5) “The Times interviewed [plaintiff] about the discrepancies 

between the police records and tape recording and his blog 

post.” 

(6) “About halfway through the recording, faint voices can be 

heard in the background for about a minute and a half. 

The comments are unintelligible on the LAPD tape.” 

(7) “Durr said he had not roughed up [plaintiff] or handcuffed 

him—in his entire career, he said, he had never handcuffed 

anyone for jaywalking.” 
14

complaint alleged the cited statements are false for various 

reasons: the LAPD did not provide the records to The Times; The 

Times “does not actually have the audiotape,” but rather an 

unauthenticated digital copy of the original analog microcassette 

tape of very poor quality, and subsequent enhancement “confirms 

[plaintiff’s] version of the events, not the LAPD’s”; “the evidence 

was unreliable”; and there are no discrepancies in his accounts of 

the incident. The complaint also asserts that statements that the 

recording and other evidence raised “serious questions about the 

accuracy” of plaintiff’s blog post, and that the post “should not 

have been published . . . necessarily and falsely impl[y] that 

[plaintiff’s] work is of low-quality and lacks integrity.” 

In addition, the complaint alleged “adverse employment 

actions and behavior.” The complaint alleged plaintiff’s hiring 

“as a freelance editorial cartoonist” in 2009. In addition to facts 

already described about his experience, his work for The Times, 

and his blog post, the complaint described his interview with 

Paul Pringle and telephone calls from Mr. Goldberg. The 

complaint alleged The Times “did not ask an independent audio 

expert to authenticate or enhance the recording, or make any 

effort whatsoever to investigate the LAPD’s claims before 

(8) An LAPD spokesman told The Times that LAPD experts 

“found no indication that the tape was spliced or otherwise 

altered.” 

(9) “[Plaintiff’s] accounts of the jaywalking stop have changed 

over time in significant respects.” 

(10) “No version of the recording, including [plaintiff’s] 

enhanced one, supports the cartoonist’s allegations that 

Durr was violent, hostile, rude and belligerent.” 
15

[plaintiff’s] termination.” The complaint alleges “egregious 

conflicts of interest between the LAPD, the Times and its 

Publisher”; The Times “rushed its decision to terminate [plaintiff] 

in approximately 24 hours, without following due diligence for 

allegations of employee misconduct, or the correct handling of 

audio presented to the newspaper”; and also “failed to follow 

standard procedure by failing to allow [plaintiff] to meet with the 

editorial board” to discuss his case. 

The complaint sought general and special damages, 

punitive damages, and attorney fees. 

3. The Special Motions to Strike

The Times filed a special motion to strike the complaint, as 

did the individual defendants. 

The individual defendants argued generally as follows. 

Plaintiff’s defamation and emotional distress claims were based 

exclusively on the content of the notice to readers and the Times 

report (collectively, the Times articles). The Times articles 

involved “allegations of police misconduct, accuracy of reports on 

that issue, and accountability of those who exaggerate or 

misrepresent information about police misconduct,” all of which 

are matters of public interest well within the scope of the antiSLAPP statute. Plaintiff could not show a probability of 

prevailing because of the fair report privilege (Civ. Code, § 47, 

subd. (d)) that applies as a matter of law to all of plaintiff’s 

content-based claims. In addition, each of the 32 statements 

alleged in the complaint “is either substantially true; a subjective 

conclusion based on disclosed facts; and/or not defamatory.” 

The Times made the same arguments as to plaintiff’s 

defamation and blacklisting claims. Plaintiff’s other claims (the 

employment claims) also came within the scope of the anti-
16

SLAPP statute, The Times argued, because they arise from The 

Times’s “constitutionally protected editorial decision to stop 

publishing [plaintiff’s] work.” In addition, plaintiff’s employment 

claims “presuppose an ‘employment’ relationship that did not 

exist.” In any event these claims “would fail on the merits 

because Plaintiff did not plead, and cannot offer evidence to 

prove, the elements of those claims.” 

Plaintiff opposed both motions. Plaintiff summarized by 

stating that “no protected activity forms the foundation of the 

defamatory statements that effectively wrongfully terminated 

Plaintiff’s employment in violation of public policy.” We will 

elaborate as necessary in connection with our legal discussion, 

post.

The trial court granted both motions.

Plaintiff filed a timely notice of appeal. Along with his 

opening brief, plaintiff filed a request for judicial notice of 

portions of an LAPD manual, pages from the docket of a 

California Supreme Court case, and a decision in a Los Angeles 

City Ethics Commission case. Plaintiff’s request provided no 

explanation why the materials are relevant to this appeal

(violating California Rules of Court, rule 8.252(a)(2)), and did not 

present them to the trial court despite their availability before 

the trial court’s decision. Accordingly, we deny the request. 

 After the parties briefed the case, we granted an 

application from California News Publishers Association and 

First Amendment Coalition to file a brief as amici curiae in 

support of defendants.

DISCUSSION

We first describe the applicable legal principles and then 

turn to their application in this case.
17

1. The Anti-SLAPP Statute and Procedure

A defendant may bring a special motion to strike any cause 

of action “arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue . . . .” (Code Civ. Proc., § 425.16, subd. (b)(1).) Acts 

in furtherance of free speech rights in connection with a public 

issue include, as relevant here, “any written or oral statement or 

writing made in a place open to the public or a public forum in 

connection with an issue of public interest,” and “any other 

conduct in furtherance of the exercise of the constitutional right 

of petition or the constitutional right of free speech in connection 

with a public issue or an issue of public interest.” (Id., 

subd. (e)(3) & (4).)

When ruling on an anti-SLAPP motion, the trial court 

employs a two-step process. It first looks to see whether the 

moving party has made a threshold showing that the challenged 

causes of action arise from protected activity. (Equilon 

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If 

the moving party meets this threshold requirement, the burden 

then shifts to the other party to demonstrate a probability of 

prevailing on its claims. (Ibid.) In making these determinations, 

the trial court considers “the pleadings, and supporting and 

opposing affidavits stating the facts upon which the liability or 

defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2); HMS 

Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212

[“In opposing an anti-SLAPP motion, the plaintiff cannot rely on 

the allegations of the complaint, but must produce evidence that 

would be admissible at trial.”].) 
18

The anti-SLAPP statute, including the scope of the term 

“public interest,” is to be construed broadly. (Nygård, Inc. v. 

Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039-1042 (Nygård) 

[discussing cases and legislative history of 1997 amendment 

adding the directive to construe the statute broadly].) Nygård 

concludes: “Taken together, these cases and the legislative 

history that discusses them suggest that ‘an issue of public 

interest’ within the meaning of section 425.16, subdivision (e)(3) 

is any issue in which the public is interested. In other words, the

issue need not be ‘significant’ to be protected by the anti-SLAPP 

statute—it is enough that it is one in which the public takes an 

interest.” (Id. at p. 1042.)

Our review is de novo. (Soukup v. Law Offices of Herbert 

Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

2. The Defamation Claims

a. The first prong: protected activity

As stated above, written statements in a public forum in 

connection with an issue of public interest are protected free 

speech activity. (Code Civ. Proc., § 425.16, subds. (b), (e)(3) &

(4).) Here, plaintiff’s defamation claims arose from the Times 

articles. Both articles were published in a public forum, and both 

concerned issues of public interest. 

The note to readers concerned the accuracy of a blog posted 

on The Times’s website discussing allegations of police 

misconduct and the propriety of the LAPD policy of enforcing the 

city’s jaywalking laws. The former issue (police misconduct) is 

always a matter of public interest, and the latter (jaywalking 

enforcement) had been recently in the news by virtue of The 

Times’s reporting on the effect of $197 jaywalking fines on poor 

and working class Angelenos, to which hundreds of readers had 
19

responded. The accuracy—or not—of publications by The Times 

on these issues is likewise and necessarily a matter of public 

interest.

The Times report included the same issues. In addition, 

when the Times report was published, the issue of The Times’s 

decision to stop publishing plaintiff’s cartoons and blog posts, and 

the claimed defamatory nature of the note to readers, had 

likewise become issues of public interest as a consequence of 

extensive media coverage.

Wilson involved different facts. The court in Wilson found 

the plaintiff’s defamation claim did not arise from a public issue 

or an issue of public interest. The plaintiff was not a figure in the 

public eye and the allegedly defamatory statement that he 

committed plagiarism was privately made and did not contribute 

to any public debate. Thus, there is no need to reconsider our 

opinion regarding the defamation claims in light of Wilson.

b. The second prong: probability of

prevailing on the merits

Plaintiff has not produced evidence demonstrating a 

probability of prevailing on his defamation claims.

i. The legal requirements

“The tort of defamation ‘involves (a) a publication that is 

(b) false, (c) defamatory, and (d) unprivileged, and that (e) has a 

natural tendency to injure or that causes special damage.’ ” 

(Taus v. Loftus (2007) 40 Cal.4th 683, 720; Nygård, supra, 

159 Cal.App.4th at pp. 1047-1048.)

ii. The fair report privilege 

Defendants contend, and we agree, that the Times articles 

were absolutely privileged under Civil Code section 47, 
20

subdivision (d) (section 47(d)).6 Under that provision (the fair 

report privilege), a publication is privileged if it is made “[b]y a 

fair and true report in . . . a public journal, of (A) a judicial, 

(B) legislative, or (C) other public official proceeding, or (D) of 

anything said in the course thereof . . . .” (§ 47(d)(1), italics added; 

see McClatchy Newspapers, Inc. v. Superior Court (1987) 

189 Cal.App.3d 961, 974 (McClatchy) [“Even when the print 

media publish an accurate report of a statement they know to be 

false, the protective cloak of subdivision 4 [now subdivision (d)] 

remains intact, not penetrated by a finding of malice.”]; Green v. 

Cortez (1984) 151 Cal.App.3d 1068, 1074 (Green) [the fair report

privilege “has been an absolute one” since 1945].)

“The meaning of a ‘fair and true report’ is well established 

in California case law. . . . [A] media defendant does not have to 

justify every word of the alleged defamatory material that is 

published. [Citation.] The media’s responsibility lies in ensuring 

that the ‘gist or sting’ of the report—its very substance—is 

accurately conveyed. [Citation.] Moreover, this responsibility 

carries with it a certain amount of literary license. The reporter 

6 Under section 47(d), a privileged publication or broadcast is 

one made “(1) By a fair and true report in, or a communication to, 

a public journal, of (A) a judicial, (B) legislative, or (C) other 

public official proceeding, or (D) of anything said in the course 

thereof, or (E) of a verified charge or complaint made by any 

person to a public official, upon which complaint a warrant has 

been issued. [¶] (2) Nothing in paragraph (1) shall make 

privileged any communication to a public journal that does any of 

the following: [¶] (A) Violates Rule 5–120 of the State Bar Rules 

of Professional Conduct. [¶] (B) Breaches a court order. [¶] 

(C) Violates any requirement of confidentiality imposed by law.”
21

is not bound by the straitjacket of the testifier’s exact words; a 

degree of flexibility is tolerated in deciding what is a ‘fair 

report.’ ” (McClatchy, supra, 189 Cal.App.3d at pp. 975-976.)

iii. This case

Here, the focus of the Times articles was the accuracy of 

material published on its website, and central to that issue was 

the 2001 LAPD investigation of plaintiff’s complaint to the LAPD 

about his 2001 jaywalking arrest. That pivotal issue included the 

description of the complaint plaintiff made about his jaywalking 

arrest, the LAPD’s investigation of the officer’s conduct during 

the arrest, and the officer’s recording of the incident, revealing

the differences between the facts found by the LAPD and 

plaintiff’s own version of the incident. That was a report on a 

“public official proceeding”—the LAPD’s investigation of 

plaintiff’s complaint about his jaywalking arrest. The reporting 

on that subject is the basis for plaintiff’s defamation claim,

without which there would be no claim. And the authorities are 

clear that a police investigation is a “public official proceeding”

within the meaning of section 47(d). Thus:

“A police investigation similar to the one in this case 

[involving an officer’s behavior during an arrest] has been held to 

be an ‘official proceeding authorized by law’ for purposes of 

section 47, subdivision 2 [now section 47, subdivision (b)]

[citation], and there can be no doubt that such an investigation is 

similarly a ‘public official proceeding’ under subdivision 4 [now 

section 47(d)].” (Green, supra, 151 Cal.App.3d at p. 1073; see also 

Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124, 1128 

[Green’s interpretation of “ ‘public official proceeding’ to include a 

police investigation into allegations of use of excessive force by 
22

police” is “consistent with what we construe to be the plain 

meaning of section 47, subdivision 4 [now section 47(d)]”].)

Ignoring these authorities, plaintiff asserts the LAPD 

investigation of his complaint was not a “public official 

proceeding” on the theory that “[t]here was never even a 

preliminary investigation,” and there is no “public official 

proceeding” until the complainant is interviewed and an 

“adjudicatory process” begins. Plaintiff cites no legal authorities 

that support his assertion.7 Instead, he claims that LAPD 

procedures in its departmental manual were not followed because 

he was not interviewed. Plaintiff may not rely on the manual, as 

7 Plaintiff cites cases that do not help him. For example, in 

Burrill v. Nair (2013) 217 Cal.App.4th 357, 397-398, disapproved 

on another point in Baral v. Schnitt (2016) 1 Cal.5th 376, 396,

footnote 11, the court stated that “[t]he [fair report] privilege has 

been held to apply to fair reports of police investigations.” 

(Burrill, at pp. 397-398.) It did not apply, Burrill held, “to a 

report of the charges made in a citizen’s criminal complaint, 

made by the citizen who filed that complaint, when there is no 

evidence any official action has been taken with respect to the 

complaint.” (Id. at p. 398.) Consequently, the fair report 

privilege did not apply to complainant’s own defamatory 

statements in a radio interview, made on the same day he filed 

his criminal complaint. (Id. at pp. 398, 375-376; see id. at p. 397 

[“ ‘An important reason for this position has been to prevent 

implementation of a scheme to file a complaint [in a judicial 

proceeding] for the purpose of establishing a privilege to publicize 

its content and then dropping the action.’ ”].) This is plainly not 

such a case. And, other authorities have declined to follow 

Burrill. (Healthsmart Pacific, Inc. v. Kabateck (2016) 

7 Cal.App.5th 416, 433-434.)
23

we have denied his request for judicial notice. The manual would 

not assist him in any event; it does not purport to tell us (nor 

could it) what constitutes a “public official proceeding.”

Plaintiff also asserts, incorrectly, that the fair report 

privilege is limited to publication of a verified charge or 

complaint on which a warrant has been issued. Such 

publications are also privileged (§ 47(d)(1)(E)), but the limitation 

plaintiff posits simply does not exist, as the language of the 

statute shows. (See fn. 6, ante.) 

Next, plaintiff contends the Times articles were not “fair 

and true report[s]” of the LAPD files, and were instead “reports of 

the Times’ own intervening investigation.” Plaintiff points out 

that the absolute privilege in section 47(d) does not immunize 

private investigations, citing Hawran v. Hixson (2012) 

209 Cal.App.4th 256, 280-282 (Hawran). Hawran is not helpful 

to plaintiff. 

In Hawran, a company issued a press release concerning its 

internal investigation into its handling of certain research and 

development test data and results. The press release was 

disseminated on the same day the company filed legally required 

disclosures to the Securities and Exchange Commission (SEC), 

and after an SEC investigation had begun. (Hawran, supra, 

209 Cal.App.4th at pp. 262-263, 264.) The court found the press 

release did not “purport[] to 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. Rather, it is plain from the face of 

the document that the September press release is reporting the 

results and consequences of [the defendant’s] own internal 

investigation.” (Id. at p. 281.)
24

That is not the case here. Both Times articles report fully 

on the LAPD investigation of plaintiff’s complaint. And the 

complaint and the information revealed by the LAPD

investigation (including the audio recording of the incident), as 

reported in the Times articles, are at the center of plaintiff’s 

defamation claims.

In a related contention, plaintiff asserts that even if the fair 

report privilege applies, the privilege “should not reach those 

portions of the [Times articles] that recount the Times’ 

investigation.” Plaintiff cites no authority for this contention, 

and we reject it. We do not think the fair report privilege can be 

lost by virtue of the inclusion of material that is integral to the 

subject of the Times articles. (As plaintiff himself says, “[w]hat 

actually occurred at the time of [plaintiff’s] confrontation with 

Officer Durr is the crux of the case.”) 

The authorities support our conclusion. (See Sipple v. 

Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 241-242

[“the substantial public concerns implicated in [section 47(d)] 

support the extension of a broad protection over the media”].) 

Sipple rejected a contention that the fair report privilege “should 

be applied narrowly and should not shield the entire article but 

only those statements that are part of the proceedings.” (Id. at 

p. 241.) The court affirmed the trial court’s ruling that 

statements not a part of the proceeding “did not contain any 

information to alter the ‘gist or sting’ of the evidence presented in 

the judicial proceeding.” (Id. at p. 231.) So it is here, where

nothing in the Times articles alters the “gist or sting” of the 

evidence in the LAPD investigation.

Further, even if we were to find the Times articles could be 

segregated into portions that are privileged and portions that are 
25

not, it would avail plaintiff nothing. First, the “false statements 

of fact” plaintiff describes in his brief (see fn. 5, ante) relate in 

substantial part to the LAPD materials, the report of which is 

unquestionably privileged. And second, “[t]o state a defamation 

claim that survives a First Amendment challenge, . . . a plaintiff 

must present evidence of a statement of fact that is ‘provably 

false.’ ” (Nygård, supra, 159 Cal.App.4th at p. 1048.) “ ‘The 

dispositive question . . . is whether a reasonable trier of fact could 

conclude that the published statements imply a provably false 

factual assertion.’ ” (Ibid.) None of the remaining statements 

plaintiff cites, recited in the margin, meets that standard.8

8 The allegedly false statements not directly related to the 

LAPD investigation, along with plaintiff’s assertions about them, 

are: (1) “[t]hat the Times interviewed [plaintiff] about 

discrepancies between the LAPD records, the tape and his blog 

post.” (Plaintiff says this is false because there were no 

discrepancies, but clearly there were.) (2) “That Officer Durr 

had never handcuffed anyone for jaywalking.” (Plaintiff asserts

Officer Durr has handcuffed a suspect for illegal street racing.) 

(3) “That the LAPD told the Times that the audio has no 

indication that the tape was spliced or altered.” (Plaintiff says 

there was no way to determine that because the audio was digital 

and not the original tape.) (4) “That Rall has offered changing 

versions of the 2001 detention over time and those changes are 

‘significant.’ ” (Plaintiff says there are no changing versions, just 

“different levels of detail.”) (5) “That no version of the recording 

of the 2001 detention . . . supports the allegation that Durr was 

violent, hostile, rude and belligerent.” (Plaintiff cites as evidence 

of falsity his declaration describing what he heard a radio talk 

show host say (which is inadmissible hearsay), and what he 

heard on his enhanced recording. Both plaintiff’s and The 

Times’s statements are subjective conclusions about what could 
26

Next, plaintiff contends his LAPD complaint and related 

materials were exempt from the fair report privilege by the 

confidentiality exception to the privilege. (A “communication to a 

public journal” that “[v]iolates any requirement of confidentiality 

imposed by law” is not privileged. (§ 47(d)(2)(C).)) Plaintiff 

misconstrues this exception. Police personnel records of 

complaints or investigations are indeed subject to various 

confidentiality restrictions, such as Penal Code section 832.7. 

But those confidentiality requirements have no application here. 

Such restrictions are for the protection of investigative files and 

the police officers involved. The officer “may, of course, choose to 

waive the confidentiality protection of section 832.7.” (Berkeley 

Police Assn. v. City of Berkeley (2008) 167 Cal.App.4th 385, 406, 

fn. 22.) The LAPD voluntarily provided the investigative files to 

both The Times and plaintiff, and plaintiff points to no evidence 

that Officer Durr—who was later interviewed by reporter Pringle 

on the subject—had any objection. Plainly he did not. No 

confidentiality provision was violated by the Times articles.

Finally, plaintiff asserts that the application of the fair 

report privilege in this case is a jury issue. Again, we disagree.

Whether a report is “fair and true” is a jury question only if 

“reasonable minds could disagree as to the effect of the 

communication on the average reader or listener.” (J-M 

Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 

247 Cal.App.4th 87, 98 (J-M Manufacturing).) But “appellate 

and could not be heard.) A reasonable trier of fact could not 

conclude that any of the cited statements is false or implies “a 

provably false factual assertion.” (Nygård, supra, 

159 Cal.App.4th at p. 1048.)
27

courts have not been reluctant to decide the fair report privilege 

applies as a matter of law when the undisputed facts are 

insufficient to support a judgment for the plaintiff.” (Id. at p. 99.) 

That is the case here.

Both of the Times articles are in the record. So is the 

material from the LAPD investigation on which the articles 

report, including a copy of Officer Durr’s audio recording. The 

bottom line, as in J-M Manufacturing, is that “[t]he substance of 

[the Times articles] was accurate,” and as a consequence, the 

Times articles were absolutely privileged under section 47(d). (JM Manufacturing, supra, 247 Cal.App.4th at p. 105.) 

We have described the Times articles in great detail, and 

see no possibility that reasonable minds could disagree on the 

accuracy of either report. The trial court summed up the point 

nicely: “The report merely stated the conclusion of the [LAPD] 

investigation, that [plaintiff’s] complaint was unfounded, and 

reviewed the evidence it was given by the LAPD, which the 

LAPD used in the investigation, and the logs of attempted 

communications with plaintiff during the investigation. There is 

no dispute that the materials reviewed were given to the Times 

by the LAPD. Plaintiff lacks evidence that the note and article 

reported falsely on this evidence as received. This is privileged.” 

In the end, plaintiff’s claim that “reasonable minds could 

disagree on what is fair” rests on his assertion that he disputed 

The Times’s “interpretation” of the audio recording, that his 

enhancement of the recording “substantially vindicated his 
28

position”; and that this court “must assume the validity of 

[plaintiff’s] proof.”

9 That is not the case.

Plaintiff’s proof consists of his declaration that he listened 

to an audio enhancement of the LAPD recording provided to him 

by Post Haste Digital, and on the enhanced recording he heard 

remarks by three different women, two of whom referred to 

handcuffing plaintiff. That evidence casts no doubt on the 

accuracy of The Times’s report on the evidence that was given to 

it by the LAPD concerning plaintiff’s complaint and its 

investigation. Further, the Times report also described plaintiff’s 

version of what he heard on the Post Haste Digital enhancement, 

and provided an online link to that enhancement so that readers 

could listen for themselves. The Times report also described the 

views of its experts, who examined plaintiff’s enhanced version 

9 Plaintiff cites Soukup v. Law Offices of Herbert Hafif, 

supra, 39 Cal.4th at page 291, for the proposition that we must 

assume his enhanced recording shows what he says it shows. 

Plaintiff misses the point. He cannot establish his case has 

minimal merit because the Times articles were absolutely 

privileged as a matter of law, as we discuss in the text. Soukup 

merely recites the standard principles that in assessing the 

evidence on an anti-SLAPP motion, the court does not weigh 

credibility or comparative probative strength of competing 

evidence. Rather, in assessing whether the defendant’s evidence 

defeats the plaintiff’s attempt to establish evidentiary support for 

the claim, “it is ‘the court’s responsibility . . . to accept as true the 

evidence favorable to the plaintiff.’ ” Those principles simply 

have no application here, where it does not matter what 

plaintiff’s enhanced recording shows; the issue, as we explain in 

the text, post, is whether the Times report was a fair and true 

report on the evidence given to The Times by the LAPD.
29

and disagreed with what plaintiff said he heard. As the trial 

court aptly concluded, “[p]laintiff has not established that 

defendants were obligated to find the enhanced tape accurate, 

credible and audible . . . .” (Cf. Partington v. Bugliosi (9th Cir. 

1995) 56 F.3d 1147, 1156 [“when a speaker outlines the factual 

basis for his conclusion, his statement is protected by the First 

Amendment”].)

As the authorities tell us, the fair report privilege “ ‘does 

not require the reporter to resolve the merits of the charges, nor 

does it require that he present the [plaintiff’s] version of the 

facts.’ [Citations.] [¶] The ‘fair and true’ requirement of 

section [47(d)] therefore does not require a media defendant ‘to 

justify every word of the alleged defamatory material that is 

published. The media’s responsibility lies in ensuring that the 

‘gist or sting’ of the report—its very substance—is accurately 

conveyed.’ ” (Dorsey v. National Enquirer, Inc. (9th Cir. 1992) 

973 F.2d 1431, 1436, fn. omitted.)

In sum, we cannot find the Times articles to be anything 

other than a fair and true report of an LAPD investigation that 

was central to the substance of the articles, and accordingly 

absolutely privileged. Consequently, plaintiff cannot establish a 

probability of prevailing on his defamation claims.10

10 Plaintiff makes a separate argument that he has 

established a probability of prevailing on his blacklisting claims. 

(Under Labor Code section 1050, “[a]ny person . . . who, after 

having discharged an employee from the service of such person or 

after an employee has voluntarily left such service, by any 

misrepresentation prevents or attempts to prevent the former 

employee from obtaining employment, is guilty of a 

misdemeanor.” Section 1054 authorizes a civil action for treble 
30

3. Plaintiff’s Employment Claims

a. The first prong: protected activity

The trial court concluded The Times has a First 

Amendment right to publish or not to publish any story it 

chooses, and that plaintiff’s wrongful termination and related 

claims arose from The Times’s decision not to publish any of his 

work in the future. In his initial briefing, plaintiff contended this 

was error under Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057 (Park), and also relied on 

Hunter v. CBS Broadcasting Inc. (2013) 221 Cal.App.4th 1510

(Hunter) and the now-reversed Court of Appeal opinion in Wilson. 

As we explained in our earlier opinion, there was no error.

In his supplemental briefing, plaintiff concedes that, based 

on “clear language in Wilson, [plaintiff] can no longer argue that 

The Times had failed to meet its prong one burden regarding the 

employment claims.” We reaffirm our analysis of Park and 

Hunter, and briefly describe Wilson’s definitive resolution of the 

issue.

damages for a violation of section 1050.) But, aside from any 

other defects, plaintiff’s blacklisting claim arises from the same 

source as his defamation claims—the Times articles—and is 

subject to the same limitations. (See Blatty v. New York Times 

Co. (1986) 42 Cal.3d 1033, 1043 [“the various limitations rooted 

in the First Amendment are applicable to all injurious 

falsehood claims and not solely to those labeled ‘defamation’ ”].) 

As we have found, the Times articles were absolutely privileged. 

This eliminates plaintiff’s blacklisting claims along with his 

defamation claims.
31

In Park, the plaintiff was denied tenure at California State 

University, Los Angeles, and filed suit under the California Fair 

Employment and Housing Act (FEHA, Gov. Code, § 12900 et seq.) 

for national origin discrimination. The defendant filed an antiSLAPP motion. The trial court denied the motion because the 

complaint was based on the defendant’s decision to deny tenure, 

rather than on any communicative conduct in connection with 

that decision, and denial of tenure based on national origin is not 

protected activity. (Park, supra, 2 Cal.5th at p. 1061.) The 

Supreme Court agreed with the trial court, and explained:

“[A] claim is not subject to a motion to strike simply 

because it contests an action or decision that was arrived at 

following speech or petitioning activity, or that was thereafter 

communicated by means of speech or petitioning activity. 

Rather, a claim may be struck only if the speech or petitioning 

activity itself is the wrong complained of, and not just evidence of 

liability or a step leading to some different act for which liability 

is asserted.” (Park, supra, 2 Cal.5th at p. 1060.)

In this case, unlike Park, The Times’s decision not to 

publish plaintiff’s work in the future is the “wrong” plaintiff 

complains of in his wrongful termination and related employment 

claims. It is equally clear that a newspaper’s decision to publish 

or not to publish a contributor’s work is protected by the First 

Amendment. 

“[T]he courts have long held that the right to control the 

content of a privately published newspaper rests entirely with 

the newspaper’s publisher. The First Amendment protects the 

newspaper itself, and grants it a virtually unfettered right to 

choose what to print and what not to.” (Eisenberg v. Alameda 

Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1391 (Eisenberg);
32

see also Miami Herald Publishing Co. v. Tornillo (1974) 418 U.S. 

241, 258 [“The choice of material to go into a newspaper, . . . and 

treatment of public issues and public officials—whether fair or 

unfair—constitute the exercise of editorial control and judgment.

It has yet to be demonstrated how governmental regulation of 

this crucial process can be exercised consistent with First 

Amendment guarantees of a free press . . . .”]; Ampersand 

Publishing, LLC v. NLRB (D.C. Cir. 2012) 702 F.3d 51, 56 

[“The First Amendment affords a publisher—not a reporter—

absolute authority to shape a newspaper’s content.”].)

In short, we find it incontrovertible that plaintiff’s 

employment claims arose directly from The Times’s protected 

First Amendment conduct: deciding not to publish plaintiff’s 

work. The Times’s decision not to publish plaintiff’s cartoons and 

blogs is not “just evidence of liability” and it is not “a step leading 

to some different act for which liability is asserted.” (Park, supra, 

2 Cal.5th at p. 1060.) The decision not to publish is the “act for 

which liability is asserted.” (Ibid.) 

Of course The Times is not free to fire its employees for

reasons that are illegal under FEHA or other laws, under the 

guise of free speech. That is what Park is all about. It was the 

decision to deny tenure for allegedly illegal reasons that was the 

basis for the plaintiff’s suit—not the communicative activity that 

led up to that decision, and was evidence of the defendant’s 

asserted liability for denying tenure.

Plaintiff’s extensive discourse on Hunter, supra,

221 Cal.App.4th 1510 has no pertinence for this case either. In 

Hunter, the court concluded that CBS’s selection of a weather 

anchor for its television stations qualified as an act in 

furtherance of the exercise of free speech. (Id. at p. 1521; see 
33

ibid. [the selections “ ‘helped advance or assist’ [two] forms 

of First Amendment expression [reporting the news and creating 

a television show],” and “therefore qualifies as a form of protected 

activity”]; id. at p. 1525 [“CBS’s protected activity—employment 

decisions regarding its weather anchors—is not incidental to [the 

plaintiff’s] discrimination claims; indeed, it is the very conduct on 

which his claims are based.”].)

Park discussed Hunter in the course of rejecting the 

defendant university’s contention that tenure decisions implicate 

the public interest as much as decisions concerning who should 

appear in a news broadcast. (Park, supra, 2 Cal.5th at p. 1071-

1072.) Park did not “express any opinion concerning whether 

[Hunter] itself was correctly decided.” (Park, at p. 1072.) But in 

Wilson, the Supreme Court cited Hunter with approval. (Wilson, 

supra, 7 Cal.5th at pp. 894-896, 889, fn. 7.)

That brings us to Wilson. Wilson confirms, as plaintiff 

concedes, that The Times met its burden to show plaintiff’s 

employment claims arose from protected activity. Wilson held 

that the anti-SLAPP statute may apply to employment 

discrimination and retaliation claims, and those claims are not 

excluded from the anti-SLAPP statute just because plaintiff 

alleges an improper motive for defendant’s protected activity. 

(Wilson, supra, 7 Cal.5th at p. 881.) Further, Wilson tells us, 

“[d]isciplining an employee for violating . . . ethical standards 

furthers a news organization’s exercise of editorial control to 

ensure the organization’s reputation, and the credibility of what 

it chooses to publish or broadcast, is preserved. These objectives 

lie ‘at the core’ of the press function.” (Id. at p. 898.) Here, as in 

Wilson, “[t]he staffing decision thus qualifies as ‘conduct in 

furtherance’ of [the defendant’s] ‘speech in connection with’ public 
34

matter.” (Wilson, supra, 7 Cal.5th at p. 898, quoting Code Civ. 

Proc., § 425.16, subd. (e)(4).) In short, Wilson fully supports our 

analysis.

b. The second prong: probability of 

prevailing on the merits

In Wilson, the court did not decide whether the plaintiff’s 

termination claims had the minimal merit necessary to proceed, 

instead remanding that issue to the Court of Appeal. (Wilson, 

supra, 7 Cal.5th at p. 899.) On this point, plaintiff’s 

supplemental brief offers nothing new, based on Wilson or 

otherwise. We thus have no reason to conclude our original 

analysis was flawed.

And so we return to a point pertinent to the merits of 

plaintiff’s employment claims: that The Times is not free to fire 

its employees for reasons that are illegal under FEHA or other 

laws, under the guise of free speech. But absent some illegal

basis for the decision, The Times may fire an employee for any 

reason or no reason. That is the nature of at-will employment.

The parties argue at length about whether plaintiff was an 

employee or an independent contractor. (Plaintiff apparently 

does not challenge the authorities holding that, because 

independent contractors are not employees, they lack standing to 

assert a claim for wrongful termination in violation of public 

policy. (E.g., Sistare-Meyer v. Young Men’s Christian Assn. (1997) 

58 Cal.App.4th 10, 14, 18 [independent contractors cannot assert 

claims for wrongful termination in violation of public policy 

predicated on race-based terminations].)) Like the trial court, we 

see no reason to address this issue, because plaintiff in any event 

has not stated a claim.
35

To prevail on a claim for wrongful termination in violation 

of public policy, the employee must show that the public policy 

allegedly violated is “supported by either constitutional or 

statutory provisions” and that it is “ ‘fundamental’ and 

‘substantial,’ ” among other points. (Stevenson v. Superior Court 

(1997) 16 Cal.4th 880, 889-890 (Stevenson).) Plaintiff made no 

such showing.

Plaintiff asserts he was “pretextually fired for fabrication, 

but actually it was in retaliation for offending the police chief.” 

Plaintiff calls this “retaliation by proxy.” By this he means that 

“[t]here was nothing the LAPD could do to harm [plaintiff] 

directly; so they called in a favor and had the Times fire him.” 

“Retaliation by proxy” is not a legal doctrine, and indeed is not a 

term that has been used in any California case of which we are 

aware. More to the point, plaintiff has identified no 

constitutional or statutory provision that would support his 

assertion of a public policy violation. 

In other words, even if The Times had fired plaintiff “in 

retaliation for offending the police chief”—a claim that is belied 

by plaintiff’s own evidence that The Times published many of 

plaintiff’s cartoons criticizing the LAPD and Chief Beck—plaintiff 

has identified no constitutional, statutory or regulatory provision 

that would have been violated.11 Without constitutional or 

11 In his complaint, plaintiff alleged he was terminated “in 

part because of plaintiff’s protected status” (citing every protected 

status, including pregnancy, listed in FEHA), as well as Labor 

Code section 1102.5 (retaliation for disclosing information about 

an employer’s violation of law). He presented no evidence to 

support those assertions, and does not cite FEHA or Labor Code 

section 1102.5 in his briefs on appeal.
36

statutory support for an alleged public policy, a claim for 

wrongful termination in violation of public policy cannot succeed. 

(E.g., Stevenson, supra, 16 Cal.4th at pp. 889-890.) 

Nonetheless, plaintiff purports to have found a case “right 

on point”—Ali v. L.A. Focus Publication (2003) 112 Cal.App.4th 

1477 (Ali).

12 Ali is not on point. In that case, the court reversed 

a summary judgment for the defendant newspaper on the 

plaintiff’s claim for wrongful termination in violation of public 

policy. This was because there were triable issues of fact on two 

issues. One was the independent contractor issue, and the other 

was “whether his employment was terminated for engaging in 

protected political speech outside the workplace.” (Id. at p. 1481, 

italics added.) 

In Ali, the plaintiff asserted he was fired “not because the 

content of his articles contravened the editorial policies or 

standards of the newspaper, but because outside of the workplace

he publicly criticized an influential public official for supporting a 

particular political candidate.” (Ali, supra, 112 Cal.App.4th at 

p. 1488, italics added.) If true, that would have violated the 

public policy “prohibiting employers from terminating an 

employee for engaging in political activity . . . found in Labor 

Code section 1101.” (Ali, at p. 1487.)

Obviously, nothing like that happened here, or was alleged 

to have happened here. The Times did not refuse to publish 

plaintiff’s cartoons and blogs because of his political activity 

outside the workplace. The Times did so based on plaintiff’s own 

12 Ali was disapproved on another ground in Reid v. Google, 

Inc. (2010) 50 Cal.4th 512, 532, footnote 7.
37

work, written for and published on The Times’s website. Even 

had plaintiff alleged violations of Labor Code sections 1101 and 

1102 in his complaint, which he did not, plaintiff cites no 

authority suggesting those provisions would apply in these 

circumstances.

Likewise, plaintiff has not established a probability of 

prevailing on his claims for breach of an express oral contract (or 

an implied-in-fact contract) not to terminate him without good 

cause. His opening brief does not recite the elements necessary 

to state those claims, and he cites no evidence at all that supports 

the existence of, or a breach of, any such contract. Indeed, 

plaintiff states he “is not even objecting to his at-will status 

under most circumstances”—whatever that means.

The only evidence plaintiff cites consists of declarations 

from other cartoonists stating that in similar circumstances, the 

management of their newspapers “would [have] met about it 

personally,” “would have given me an opportunity to hear and 

respond to the evidence,” would have “offer[ed] me a fair 

hearing,” and “always consulted me before taking any action.” 

Plaintiff says he is “seeking vindication of the policy” in the 

industry that an employee accused of violating journalistic ethics 

be given “a fair opportunity to present his position before being 

fired.” But plaintiff has not produced evidence to establish a 

prima facie case for the existence of an oral contract with The 

Times. 

Plaintiff presents no argument concerning his claim for 

intentional infliction of emotional distress, and accordingly any 

assertion of error on that claim is forfeited.
38

DISPOSITION

The orders are affirmed. Defendants shall recover their 

costs on appeal.

GRIMES, J.

WE CONCUR:

BIGELOW, P. J. 

STRATTON, J.