Clark Law Firm

ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS,

SPECIAL MOTION TO STRIKE AND FOR ATTORNEYS' FEES

(Emmanuel Ikharebha v. Nancy Smith, etc. et al., USDC, Central

District of California, Case No. CV 98-10301 AHM (RNBx)

On December 22, 1998, Plaintiff filed a complaint against Defendants Palmdale School District "PSD"), Nancy Smith (the Superintendent of PSD) and Larry Logsdon (PSD board member)(collectively referred to as the "School District Defendants") and Defendant Antelope Valley Newspapers, Inc. ("AVN"). Plaintiff is an architect and representative of a community group called "Antelope Valley Coalition for Empowering Consumers."

Plaintiff's factual allegations may be classified into two categories. First, he alleges that the School District Defendants unlawfully denied him a contract for architectural work on account of his race (African American). Second, Plaintiff alleges that, in an interview with a reporter for the Antelope Valley Press, Smith and Logsdon responded to his public charges of school board mismanagement, and in doing so defamed him and caused him emotional distress. Plaintiff also claims that by publishing Smith and Logsdon's allegedly false statements about Plaintiff, Defendant AVN defamed him and caused him emotional distress.

Plaintiff's complaint alleges the following claims:

• 42 U.S.C. § 1981 (discrimination in contractual relations) against Smith and PSD;
• 42 U.S.C. § 1983 (racial discrimination and harassment) against Smith and Logsdon;
• 42 U.S.C. § 1983 (interference with freedom of speech) against Smith and Logsdon;
• Violation of First Amendment Rights against PSD, Smith and Logsdon;
• Defamation against all Defendants;
• Violation of California's right to free speech against PSD, Smith and Logsdon;
• Intentional Infliction of Emotional Distress against all Defendants; and
• Negligent Infliction of Emotional Distress against all Defendants.

By order filed February 12, 1999, this Court permitted Plaintiff's counsel to withdraw. Since then, Plaintiff has prosecuted this case pro se.

On February 19, 1999, the School District Defendants filed motions (1) for judgment on the pleadings, and (2) to strike Plaintiff's defamation and related claims under California anti-SLAPP statute, ⁽¹⁾ Code of Civil Procedure section 425.16. On February 22, 1999, Defendant AVN separately filed motions (1) for judgment on the pleadings, (2) to decline to exercise supplemental jurisdiction and dismiss pursuant to 28 U.S.C. § 1367(c), (3) for Rule 11 sanctions, and (4) to strike each of Plaintiff's claims against it, also under Code of Civil Procedure section 425.16.

Plaintiff failed to timely file his opposition to any of these motions. By order filed March 12, 1999, this Court ordered Plaintiff, among other things, to show cause why this case should not be dismissed for failure to prosecute. The court also denied Defendant AVN's motion for Rule11 sanctions and vacated hearing on each of the remaining motions.

On March 22, 1999, Plaintiff filed a declaration setting forth his efforts to obtain new counsel to represent him. Plaintiff also requested that this Court continue the time within which he could file his opposition to Defendants' remaining motions. By order filed April 5, 1999, this Court granted Plaintiff's request for an extension of time, to April 19, 1999. The Court cautioned Plaintiff that his "failure to timely comply with this order may result in this Court's deeming each of the motions unopposed and granting them."

On April 19, 1999, Plaintiff filed oppositions to each of Defendants' separate motions to strike pursuant to Code of Civil Procedure section 425.16. However, Plaintiff faille to timely oppose any of the other motions.

Having considered the papers submitted and the file in the case, the Court construes Defendants' motions for judgment on the pleadings as motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) and grants them, denies as moot Defendant AVN's motion to dismiss pursuant to 28 U.S.C. § 1367(c), and grants Defendants' special motions to strike and for attorneys' fees pursuant to Code of Civil Procedure section 425.16.

DISCUSSION

Pursuant to Local Rule 7.9 ("papers not timely filed by a party...will not be considered and may be deemed by the Court consent to the granting or denial of the motion, as the case may be") and this Court's April 5, 1999 order, the Court deems Plaintiff' failure to file timely an opposition to the following motions constitutes his consent to the Court's granting them: (1) the School District Defendants' motion for judgment on the pleadings, and (2) Defendant AVN's motions for judgment on the pleadings and (3) to dismiss for lack of jurisdiction. Given Plaintiff's pro se status, however, the Court will exercise its discretion to construe the Rule 12(c) motions for judgment on the pleadings as motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See The Rutter Group, Federal Civil Procedure Before Trial, § 9:341 (citing Amersbach v. City of Cleveland, 598 F.2d 1033, 1038 (6th Cir. 1979)("The mere fact the motion was couched in the terms of Rule 12(c) [for judgment on the pleadings] does not prevent the district court from disposing of the motion by dismissal rather than by judgment.")). Accordingly, construing Defendants' motions for judgment on the pleadings as motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the Court grants these unopposed motions without prejudice. ⁽²⁾ Because the Court has granted Defendant AVN's motion to dismiss, the Court denies as moot its motion to dismiss for lack of jurisdiction pursuant to 28 U.S.C. § 1367(c)(3).

Pursuant to California Code of Civil Procedure section 425.16, the School District Defendants move to dismiss Plaintiff's claims numbered 3, and 5-8, i.e., claims for 42 U.S.C. § 1983 for interference with Plaintiff's First Amendment right to free speech; defamation; violation of California's right to free speech; intentional infliction of emotional distress ("IIED"); and negligent infliction of emotional distress ("NEID") (collectively referred to as the "defamation and related claims"). Also pursuant to section 425.16, Defendant AVN moves to dismiss claims numbered 5, 7 and 8 (all of the claims asserted against it), i.e., defamation, IIED and NEID. Defendants seek the attorneys' fees they incurred in making these motions but submit no claim for costs.

Although this Court has already concluded above that dismissal of all of Plaintiff's claims is warranted, such dismissal does not moot Defendants' separately-filed motions to strike and for attorneys' fees pursuant to California Code of Civil Procedure section 425.16. Cf. Coltrain v. Shewalter, 66 Cal.App.4th 94, 107, 77 Cal.Rptr.2d 600 (1998) (plaintiff's voluntary dismissal of complying following defendant's filing of anti-SLAPP motion under CCP § 425.16 does not moot motion).

In enacting this anti-SLAPP provision, the California Legislature declared that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition fir the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

Code of Civil Procedure section 425.16.

Under Code of Civil Procedure section 425.16(c), a court is obligated to award attorneys' fees and costs to a defendant who successfully moves to strike under that section. ("In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."). Subdivision (b)(1) of section 425.16 provides:

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Although the "paradigm SLAPP" suit involves a suit "filed by a powerful land developer against individuals or organizations politically or legally opposed to the development," California's broad anti-SLAPP statute is not restricted to such suits; it applies to all actions that come within its terms. Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855, 864, 44 Cal.Rptr.2d 46 (1995)(holding that newspaper sued for libel may avail itself of anti-SLAPP protections)(citing Wilcox v. Superior Court, 27 Cal.App.4th 809, 815, 33 Cal.Rptr.2d 446 (1994)). ⁽⁴⁾

Under section 425.16, the moving defendant "must make a prima facie showing that the SLAPP suit arises form any action by the citizen party "in furtherance of the persons' right of petition or free speech under the United States or California constitution in connection with a public issue."

United States ex rel. Newsham v. Lockheed Missiles & Space Co., ___ F.3d ___, 1999 WL 156058 at *8, 99 Daily Journal D.A.R. 2753 (9^th Cir. March 24, 1999)("Newsham")(quoting Wilcox v. Superior Court, 27 Cal.App.4th 809, 817, 33 Cal.Rptr.2d 446 (1994)). "To make this determination, the court 'shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" Newsham, 1999 WL 156058 at *8. Once the moving party makes that showing, "[t]he burden then shifts to the SLAPP plaintiff to establish by a 'reasonable probability' that the SLAPP plaintiff will prevail on the claim and that the citizen party's 'purported constitutional defenses are not applicable to the case as a matter of law or by a prima facie showing of facts which, if accepted by the trier of fact, would negate such defenses.'" Id. (Quoting Wilcox, 27 Cal.App.4th at 824-25). Like a motion for summary judgment, a court should not weigh conflicting evidence, but should determine whether Plaintiff has presented sufficient evidence to establish a prima facie case. Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855, 867, 44 Cal. Rptr.2d 46 (1995).

As the School District Defendants correctly point out, Plaintiff's defamation and related claims against them arise out of Plaintiff's previous accusations that the Palmdale School District, including its Superintendent (Defendant Smith) and Board Member (Defendant Logsdon), mismanaged district programs (including Operation Head Start), personnel, financial, and human relations practices. Complaint at ¶ 20. Specifically, on September 1, 1998, Plaintiff, as representative of a community group called "Antelope Valley Coalition for Empowering Consumers" submitted to the School Board a 15-page document titled "Comments and Concerns from the Public Arena: A comprehensive list of concerns focusing on management, personnel, financial and human relations practices of the Palmdale School District." Complaint Exh. 1. The Antelope Valley Press reported on Plaintiff's presentation in an article titled "Coalition protests district policies." School District Defendants' Request for Judicial Notice Exh. A. On September 11, 1998, the Antelope Valley Press published a follow-up article on the controversy titled "School district, coalition in standoff" Id. Plaintiff subsequently wrote, and on October 10, 1998, the antelope Valley Press published, an op-ed piece concerning the controversy titled "Administration spends tax dollars frivolously." ⁽⁵⁾

The by-line for this op-ed piece stated that "Ikharebha is a representative of the Antelope Valley Coalition for the Empowerment of Consumers."

On October 17, 1998, Defendant AVN published in the Antelope Valley Press a story titled "Board member fires back at accusations," in which, as the headline suggests, Smith and Logsdon responded to Plaintiff's accusations. Plaintiff's defamation and related claims against all the Defendants arise from that article. Specifically, Plaintiff alleges in his complaint (at ¶ 71) that the following statements in that article defamed him and caused emotional distress:

In addition to Defendant AVN's reporting of the statements of Logsdon and Smith, Plaintiff also alleges that the story sub-heading "Rejected Plans" falsely indicated "that Plaintiff's plans for remodeling and expansion of a metal warehouse behind the school district offices on 10^th Street East and a building across the street used for staff development were rejected." Complaint at ¶ 71(G).

The School District Defendants' comments in the October 17, 1998 article and Defendant AVN's reporting of those comments meet section 425.16's definition of "act in furtherance of a person's right of petition or free speech" (section 425.16(b)), in that the statements were made and the newspaper article was published in connection with the school board's "other official proceedings" (§ 425.16(e)) and in connection "with a public issue or an issue of public interest." See Lafayette Morehouse, 37 Cal.App.4th at 863 (news articles reporting on university's dispute with neighbors and related hearing before the Board of Supervisors discussing the issue were "connected" with"other official proceeding authorized by law"); Sipple v. Foundation for Nat. Progress, 71 Cal.App.4th 226, 83 Cal.Rptr.2d 677, 684 (1999)(magazine article concerning allegations of domestic violence is issue of public interest). Similarly, in Bradbury v. Superior Court (Spencer), 49 Cal.App.4th 1108, 1116, 57 Cal.Rptr.2d 207 (1996), a deputy sheriff filed a defamation action against members of the district attorney's office and the county for statements they made in the course of investigating plaintiff's shooting death of a citizen. In granting defendant's anti-SLAPP motion, the appellate court concluded that the allegedly defamatory statements were made in connection with a matter of public interest.

Because Defendants - the moving parties - have met their initial burden, this Court must next examine whether Plaintiff has met his burden of establishing "that there is a probability that the plaintiff will prevail on the claim." Section 425.16(b).

The tort of defamation "involves a publication which is false, defamatory and unprivileged, and which has a natural tendency to injury or which causes special damage." 5 Witkin, Summary of California Law, Torts § 471. In ordinary disputes between private citizens not relating to matters of public interest, the defendant bears the burden of showing that an alleged defamatory remark was true. Brown v. Kelly Broadcasting Co., 48 Cal.3d 711, 751 n. 37, 257 Cal.Rptr. 708 (1989)("The burden of proof with respect to the issue of truth or falsity is on the defendant.")(quoting Lipman v. Brisbane Elementary Sch. Dist., 55 Cal.2d 224, 233, 11 Cal.Rptr. 97 (1961)). In defamation actions concerning statements relating to matters of public interest or against media defendants, however, the plaintiff bears the burden of proving that the allegedly defamatory remark is false. Philadelphia Newspapers v. Hepps, 475 U.S. 767, 776, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986)(media defendants); Nizam-Aldine v. City of Oakland,47 Cal.App.4th 364, 372-75, 54 Cal.Rptr.2d 781 (1996)(statements relating to matters of public interest). ⁽⁶⁾

Here, the record fully supports Defendants' contention that the matters about which Smith and Logsdon spoke and about which Defendant AVN reported involved matters of public interest. Plaintiff does not dispute this fact, nor could he reasonably do so since his own complaint admits that the genesis of his defamation action was his own public accusation of school board mismanagement. Complaint at ¶ 20. Plaintiff thus bears the burden of demonstrating that Smith and Logsdon's statements were not true.

In opposition to each of the Defendant's motions, Plaintiff submitted an unsworn "answer" outlining the evidence he expects to prove at trial. ⁽⁷⁾ Even if the Court treated this "answer" as if it contained admissible evidence, this Court concludes that Plaintiff has failed to meet his burden. Plaintiff's "answer" basically consists of a multitude of allegations that Smith and Logsdon had motives for defaming him and that he told Defendant AVN's reporter that their statements were not true. His "answer" fails, however, to state anywhere, much less establish, that their statements were actually untrue. Given Plaintiff's complete failure to introduce evidence showing a probability of success on the merits, this Court must grant Defendants' motions under section 425.16.

"[S]ection 425.16 requires the court to award fees and costs to a defendant who prevails on a motion to strike brought under that section[.]" Moore, 697 Cal.App.4th at 750; section 425.16(c)("In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."). Because the court grants Defendants' motion to strike under section 425.16, they are the "prevailing defendants" (see Coltrain, 66 Cal.App.4th 94) and the Court must award Defendants their fees and costs.

The School District Defendants seek $8,100 in attorneys' fees representing all the fees they incurred in defending this action. However, these defendants concede that only $1,950 of those fees were incurred in making this motion and in responding to Plaintiff's opposition. The School District Defendants are not entitled to recover the fees incurred in defending the action generally; they are limited to those fees incurred in making the anti-SLAPP motion. Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379, 46 Cal.Rptr.2d 542 91995)("a prevailing defendant on a motion to strike [is] allowed to recover attorney fees and costs only on the motion to strike, not the entire suit.").

The $1,950 in fees the School District Defendants seeks consists of seven hours incurred in drafting the motion, three hours in reviewing Plaintiff's opposition and drafting the reply, and an additional three hours that they budgeted for appearing at a hearing on this motion, all at the hourly rate of $150. Plaintiff does not argue that these defendants' fee request is unreasonable. Afer considering the pertinent factors, see Church of Scientology v. Wollersheim, 42 Cal.App.4th 628, 659, 42 Cal.Rptr.2d 620 (1996)(awarding fee sunder section 425.16) ⁽⁸⁾, this Court concludes that the School District Defendants' hourly rate and the ten hours already incurred for which they seek reimbursement area reasonable. Because the Court is vacating hearing in this matter, however, the Court denies the School District Defendants' request for compensation for an additional three hours that would be spent in appearing at the hearing. Accordingly, the Court grants the School District Defendants' request for fees in the amount of $1,500.

In its moving papers, Defendant AVN sought $1,425 in attorneys' fees incurred in making its motion under section 425.16. This request was made up of 9.5 hours (7.5 hours spent researching and drafting its motion and another two hours anticipated to be spent reviewing Plaintiff's opposition, drafting a reply and appearing at the hearing) at the hourly rate of $150. In its reply, however, Defendant AVN sought an additional $1,530 in fees and $100 in costs. The Court concludes that Defendant AVN's original request for $1,425 in fees is reasonable and grants its motion for that amount.

CONCLUSION

For all of the above-stated reasons and good

IT IS SO ORDERED.

DATED: MAY 3, 1999

______________________________

A. HOWARD MATZ

UNITED STATES DISTRICT JUDGE

NOTE: Clark Law Firm represented defendant Antelope Valley Press.

1. "SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation." Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 37 Cal.App.4th 855, 858, 44 Cal.Rptr.2d 46 (1995).
2. Although the Court grants Defendants' motions to dismiss without prejudice, the Court cautions Plaintiff to proceed very carefully before filing another action raising comparable claims arising out of the facts he previously alleged. Filing a complaint either pro se or with the assistance of counsel in violation of any portion of Fed. R. Civ. P. 11(b)(1) - (3) may result in the imposition of substantial monetary sanctions and could expose Plaintiff to claims for malicious prosecution.
3. The Ninth Circuit recently concluded that federal law does not preclude the application of section 425.16 to state law claims brought in federal courts. United States ex rel. Newsham v. Lockheed Missiles & Space Co., ___ F.3d ___, 1999 WL 156058 at *8, 99 Daily Journal D.A.R. 2753 (9^th Cir. March 24, 1999).
4. This Court is somewhat troubled by these anti-SLAPP motions because (ironically) the parties seeking to benefit from the protections of this statute are relatively powerful defendants seeking money from a pro se plaintiff who, for his part, asserted a violation of his First Amendment right. This is certainly not the "Hallmark...SLAPP suit...brought with the goals of obtaining an economic advantage over a citizen party." Newsham, 1999 WL 156058 at *7 (emphasis added). It is unlikely that the California Legislature envisioned that this statute would be applied in this manner. Nevertheless, this Court should not disregard the appellate court's decision in Lafayette Morehouse.
5. The article stated, among other things, that "Architect Emmanuel Ikharebha, who said he represents a group calling itself the Antelope Valley coalition for Empowering consumers, presented the 15-page complaint to the board of trustees Tuesday night. [¶] Ikharebha said he was speaking for [a] group of about 100 parents, teachers, school district employees, and business people."
6. In Nizam-Aldine, plaintiff-engineers sued the city and its employees for defamation concerning statements they made in connection with the city's determination of where to draw subdivision maps. Specifically, defendants had stated that plaintiffs had falsely and inaccurately made boundary determinations. Although recognizing that "some speech might concern aspects of government that 'do not genuinely implicate any broad public interest nor materially enhance the self-governing ability of the public,'" the Court nevertheless concluded that these statements concerned issues of public interest. Id. at 377 (quoting Hoffman Co. v. E.I. due Pont de Menours & Co., 202 Cal.app3d 390, 407, 248 Cal.Rptr.384 (1988)). See also Bradbury, supra, 49 Cal.App.4th at 1116 (statements in connection with investigation of deputy sheriff's shooting death of rancher involved a matter of public interest under Nizam-Aldine).
7. Plaintiff's "answer" does not constitute evidence in support of his motion because it is not stated under penalty of perjury. Although courts "generally tolerate informalities from civil pro se litigants," Rand v. Rowland, 154 F.3d 952, 957 (9^th Cir. 1998), the Ninth Circuit has held that non-prisoner pro se litigants are not entitled to notice that their complaints may be dismissed on summary judgment if they fail to submit evidence in declaration form. Jacobsen v. Filler, 490 F.2d 1362, 1364-67 (9^th Cir. 1986). Given the similarity in the standards governing the resolution of an anti-SLAPP motion and a motion for summary judgment, this Court can find no basis for deviating from this established rule. Moreover, as stated in the text, even if Plaintiff's "answers" were construed as declarations, they fail to demonstrate that it is probable that he will prevail on his defamation and related claims.
8. "In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider 'the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney's effort, his learning, his age, and his experience in the particular type of work demanded...; the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.'" Church of Scientology, 42 Cal.App.4th at 659 (quoting Stokus v. Marsh, 217 Cal.App.3d 647, 656-657, 266 Cal.Rptr. 90 (1990)).

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