LaBarbera thinks Brennler constitutionally protected

August 21, 2013
CAPLO's Dee Torres

CAPSLO’s Dee Torres

By DANIEL BLACKBURN

A San Luis Obispo Superior Court judge, in a tentative ruling, is planning to uphold an anti-SLAPP motion to dismiss a slander lawsuit brought by a homeless services official against Mike Brennler, a North County private investigator.

Judge Barry LaBarbera’s office posted his tentative ruling online late Wednesday afternoon.

According to the tentative ruling, Dee Torres, director of the Community Action Partnership of San Luis Obispo County (CAPSLO) alleged that Brennler “in a March 2013 telephone conversation with Torres’ ex-husband Charles Barber, stated (Torres) had been stealing money from a homeless man named Cliff Anderson.” Torres is represented by San Luis Obispo attorney Roy Ogden.

LaBarbera noted that facts presented thus far suggest that Brennler’s alleged actions and comments are protected under a host of state and U.S. constitutional protections.

The matter is scheduled for a 9 a.m. Thursday hearing in LaBarbera’s San Luis Obispo Superior Court on Brennler’s special motion to strike.

SLAPP stands for “Strategic Lawsuit Against Public Participation.” It is the label applied to lawsuits filed against critics or opponents to prevent them from being involved in controversies. California, as well as many other states, have laws that allow the people being sued to go to court to have the SLAPP suit dismissed.

One local legal source said a tentative ruling “is just that — tentative. It’s what the judge is thinking at that moment, and  it gives a little time for the attorneys to hone their arguments.”

Brennler is represented by SLO attorney Stew Jenkins.

LaBarbara said the issues surrounding the county’s homeless situation are undeniably of public interest.

Therefore, he wrote, “the burden now shifts to (Torres) to demonstrate a probability of prevailing on her defamation cause. (She) must make a prima facie showing of facts that would support a judgment in her favor.”

Part of the tentative ruling suggested that as a result of her position as spokesperson for CAPSLO’s homeless activities and other county endeavors, Torres is a public figure — an allegation which she had disputed.

The lawsuit had left open the possibility that CalCoastNews, KVEC920’s Dave Congalton, his employers, and CalCoastNews sources might be included in the lawsuit at a later date.


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slophocles

New Times does it again. Thought today might have been the day they stepped back into the role of community watchdog, back down the road to credibility, but not a word could I find in this morning’s issue about this very alarming story that affects the community in so many different ways. They end the title of their feature story: “… But is Anybody to Blame?” What a wishy-washy, pollyanna SLO-style angle on a story about a “Split City”. I’m sure their advertisers are as happy and undisturbed as they are every week.


slophocles

If the managing editor’s new novel is anything like the periodical she manages, I’m sure it’s great bedtime reading. No nightmares, guaranteed.


isoslo

New Times is a joke!


HarryMalone

Dig Steve Moss up and put a pen in his hand… he could still do a better job than the Tribette aka New Times!


abigchocoholic

Therefore, he wrote, “the burden now shifts to (Torres) to demonstrate a probability of prevailing on her defamation cause. (She) must make a prima facie showing of facts that would support a judgment in her favor.”

———————————

This is way over the lay person’s head but all Torres has to do is show some evidence in her favor. Just some evidence. Any amount will do. A prima facia showing means a scintilla of evidence. It’s supposed to be the same standard as on summary judgment. Summary judgments are almost impossible to win. So if she makes a prima facia showing, the lawsuit is supposed to go forward. And no it doesn’t matter if the “some evidence” is rebutted, the rebuttal doesn’t count.


Let’s put it this way. If you file a lawsuit and can’t show some evidence in support of your lawsuit, you should be taking the short bus around town. That being said, courts have routinely ignored that they are not to weigh evidence and have used their common sense and done some weighing and ruled in favor of anti-slapp motions when they probably shouldn’t have.


Homer

Actually, your reading of the ruling is incorrect. If it stands, the judge is saying Torres, for the limited purpose of issues regarding the homeless, is a public figure. Therefore, the prima facie evidence she must present has to show Brennler displayed actual malice when he repeated the allegations of theft in his phone call. In other words, the bar is set very, very high for Torres.


abigchocoholic

Actually, your reading of the ruling is incorrect. … the prima facie evidence she must present has to show Brennler displayed actual malice when he repeated the allegations of theft in his phone call.

——————————-

Where did I say this isn’t correct? Whatever the cause of action is, all one is supposed to have to do is provide a scintilla of evidence in support of the cause of action–and, yes, that means each element of the cause of action—to go forward. There is not supposed to be any Judge weighing of the evidence admitted. Supposedly, if the Judge admits evidence in support of Plaintiff, the anti-slapp is over.


Now, what you are saying, if I read between the lines correctly, is that you think Torres will not be able to introduce any evidence (not even a scintilla) of one of the elements of her cause of action that being “actual malice”. Admittedly, I haven’t done the research on her cause or causes of action or read the opinion to determine if “actual malice” is an element but if you are correct and it is, then obviously she would have to introduce a scintilla of evidence of “actual malice” just as she would to every other element.


And, of course, that begs the question; if she has to introduce a scintilla of evidence in support of “actual malice” and she can’t even do that, then what in the world was she doing filing the lawsuit in the first place and …. see my comments above.


Kevin Rice

I disagree. The judge wrote, “demonstrate a PROBABILITY of prevailing” (emphasis added). That is more than a scintilla. Torres needs to proffer factual evidence that, if not controverted, shows Brennler clearly and convincingly “harbored actual malice.” How is Torres going to do that?


Torres is on the short bus, IMHO. She bought this suit, now she owns it.


r0y

Makes me wonder what Biz thinks of her girl now… Biz? Anyone seen her lately? Quiet as a mouse (or rat).


abigchocoholic

The judge wrote, “demonstrate a PROBABILITY of prevailing” (emphasis added). That is more than a scintilla. Torres needs to proffer factual evidence that, if not controverted, shows Brennler clearly and convincingly “harbored actual malice.” How is Torres going to do that?

———————

And therein is the rub. The law basically starts off as you say requiring one to demonstrate a probability of prevailing but then when you get into the case law, all one has to do to overcome the anti-slapp motion is to make a prima facia case. And the courts have specifically said that the standard in an anti slapp is the same standard as on summary judgment —and that standard is no weighing of evidence and all the person has to do to overcome a summary judgment motion is produce a scintilla of evidence in support of each element of their claim.


MaryMalone

1. It could be a case of being “controlled,” one way or the other, by Hill. Hill is a reactive nincompoop with apparent delusions of grandur, leading to an almost negligible sense of judgment. Filing a SLAPP suit sounds just like something Hill would do. Perhaps he used his leverage to convince her to file the SLAPP suit.


2. I find it hard to believe that two people on this plant have as poor judgment as does Hill. Nevertheless, Torres may also have very poor judgment and a sense of grandiosity. If so, she may have actually believed she could prevail in this case.


3. It could be, as I have postulated all along, that the reason for the suit was to give Torres time to destroy evidence relating to gift cards, Family Ties, etc.


Cindy

She has not and CANNOT meet her burden of proof. It say’s so right here in the last paragraph.


“Plaintiff had requested at an informal discovery conference on August 14, 2013 and at an

ex parte hearing on August 20, 2013 that the stay of discovery be lifted to allow Plaintiff

to take Defendant’s deposition on the issue of malice. The Court had indicated that it

would consider such discovery if Plaintiff demonstrated that such a deposition could lead

to evidence which could prove by clear and convincing evidence Defendant harbored

actual malice. Under the circumstances of Defendant’s alleged conduct here and the

declarations filed by Defendant and Almirol, the Court denies the request for discovery

because it is not likely to aid Plaintiff in meeting her burden of proof. “


abigchocoholic

She has not and CANNOT meet her burden of proof. It say’s so right here in the last paragraph.

—————————————–

If so, it shows she had no evidence supporting her cause of action going into the lawsuit which takes me back to my original comment “Let’s put it this way. If you file a lawsuit and can’t show some evidence in support of your lawsuit, you should be taking the short bus around town.”


Anyone who files a lawsuit with no evidence going in and only hoping to discover some evidence after filing the lawsuit deserves to get slammed. It’s malpractice level weak.


ironyman2000

There is no “scintilla” in prima facie. There is having some evidence of all the facts.


abigchocoholic

There is no “scintilla” in prima facie. There is having some evidence of all the facts.

————————

oh, not a “scintilla” but rather “some”? Is a scintilla not “some”? Is there really a thing inbetween nothing and something that doesn’t constitute “some”? Splitting microscopic hairs before breakfast? Does it depend what the definition of “is” is? (Just messing with you. Yes, I have heard it called “some” too.)


“Scintilla of evidence” is a metaphorical expression describing a very insignificant or trifling item of evidence. The common-law rule provides that if there is any evidence at all in a case, even a mere scintilla, that tends to support a material issue, the case cannot be taken from the jury but must be left to its decision. legal-dictionary.thefreedictionary dot com/scintilla


“[A]lthough by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether `the plaintiff has established that there is a probability that the plaintiff will prevail on the claim’ (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.” (Taus v. Loftus (2007) 40 Cal.4th 683, 714 [54 Cal.Rptr.3d 775, 151 P.3d 1185].) “[T]he court’s responsibility is to accept as true the evidence favorable to the plaintiff . . . .” (HMS Capital, supra, 118 Cal.App.4th at p. 212.) “[T]he defendant’s evidence is considered with a view toward whether it defeats the plaintiff’s showing as a matter of law, such as by establishing a defense or the absence of a necessary element.” (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585 [132 Cal.Rptr.2d 789].)


ironyman2000

boy, you don’t have a lot to do with your life do you?


Homer

I think the judge’s ruling is legally sound. Having said that, here’s what he’s concluding: A reporter hired a P.I. to do the legwork she, for some reason, couldn’t do herself. The P.I. repeated allegations of theft that aren’t being investigated by any law enforcement agency. But, because the target of these allegations is the director of an agency with a public profile and, therefore, is quoted in the media, the P.I. is constitutionally protected by a string of precedent-setting rulings. Doesn’t make the allegations true or the reporting any better.


r0y

While technically you might be right, having a garbage case thrown up to slow or prevent “bad reporting” (giving you the benefit of the doubt) really shows the character of Dee and the management of CAPSLO.


hijinks

I don’t understand. Are you saying that if you were the subject of “bad reporting” it would show your bad character if you were to file a slander suit against the “bad reporting?” That’s sure what your note sounds like it’s saying. If so, I guess somebody who’s subjected to “bad reporting” should have only one recourse — to sit there and be pelted forever with the reporter’s rotten eggs. To be unable to seek relief from those rotten eggs. Is that fair?


Kevin Rice

Nothing in the tentative opinion concludes “a reporter hired a P.I.”


Nothing in the tentative opinion concludes “she, for some reason, couldn’t do [the work] herself.”


I agree with most of the rest, except news sources have never been considered finders of fact, nor should they be. Reporting allegations and investigating is extremely important to spark public inquiry, scrutiny, discourse, and (hopefully) outcomes which further the public interest. This is where the Tribune utterly FAILS our community. What was the last Tribune investigation piece? I can’t remember.


CCN’s spelling could be better (it’s LaBarbera). CCN could improve in a lot of areas (and certainly would if they had half as many employees as the Tribune). Three reporters at CCN bring public scrutiny to far more issues than 100 Tribune employees.


Make no mistake, CCN is BY FAR the best journalism outfit in our county.


mbactivist1

I think you make a good point that I don’t recall having seen before in CCN comments. CCN is operated by a small number of people on a limited budget. Yet, they absolutely, as you say, “…bring public scrutiny to far more issues than 100 Tribune employees.”


These folks are dedicated journalists. They are doing what they are doing because they believe it is right. I’m quite sure they are not getting rich. They also deal with retaliation when those in power don’t like what is being reported. Yet, they keep at it.


You know the old saying – “If you shine a bright enough light, the cockroaches will run for cover” Keep shining that light, CCN. You clearly have some of the cockroaches on the run. :)


Homer

“However, in this instance there is no showing that the alleged statements were made in contemplation of litigation or connected with a matter under review by any legislative, executive, or judicial body for purposes of CCP §425.16(e)(2) protection.. Rather, as affirmed in Karen Velie’s

declaration the statements were made during Defendant’s investigation into leads for

CalCoastNews’ articles on the homeless.”


100 Tribune employees?? Um, I think there are probably about 10 reporters.


Kevin Rice

Your quite fails to support either of the two conclusions I challenged above.


Further, are you offering a defense to the Tribune in alleging only ten percent of their effort is devoted to reporting news?


hijinks

The Tribune doesn’t even report the news, let alone do any investigative reporting. It’s a joke.


MaryMalone

The same could be said about the initial phase of the reporting in Nixon’s involvement in the Watergate scandal.


SLOBIRD

Hopefully, Dee Torres will be in Court with her attorney tomorrow for all to see. Maybe we will hit the jackpot and have Mr. Hill there as well.


kayaknut

Mr. Hill will only be there if there is a APCD or other meeting he supposed to be at but feels his time is better spent having coffee or sitting in a courtroom.


ironyman2000

I was acquainted with LaBarbara when he was a deputy D.A. A bit odd but very perceptive and

knowledgeable.

Although it wouldn’t take a rocket surgeon to get it right, he certainly hit the bent nail off the block.


Nancy

LaBarnara’s tentative ruling was an interesting and informative read, I can’t imagine how Dee could possibly try to claim that she isn’t a public figure when she has caused so much controversy surrounding the homeless issues.


I just had a thought of Adam Hill texting ‘123’ to judge LaBarbara. Funny, I’m really laughing out loud right now because that guy is crazy enough do it. I’ve seen Adam appear to be very high on something at times, if he gets drunk or high, he’ll definitely do something weird to LaBarbara tonight and probably to Mike Brennler too.


Get ready for the prank phone calls guys.


Homer

This is what so many of you don’t get: A news site accusing someone of wrongdoing doesn’t equal “(causing) so much controversy surrounding homeless issues.” She is a limited public figure because serving the homeless is, in general, an issue of public interest. The “controversy” created by CCN has nothing to do with that.


Reality Check

The “controversy” was REPORTED by CCN, not CAUSED by CCN. CAPSLO and Dee Torres’ behavior toward the homeless caused the controversy. CCN has stood alone trying to investigate and inform the public about wrong doing by a prominent agency and its staff.


Kevin Rice

Tonight’s prank phone call:


“Hi, Judge LaBarbera, I read your tentative opinion on CCN. Are you a Communist? Or a Socialist? Or Both? Or maybe a Marxist?


This is Ed Waage. Just wanted to let you know what I thought.”


Cindy

LOL, ROFLMAO….. Really LOL, for real LOL. can’t stop LOL.


SLOBIRD

OMG, please, hand me e box of Kleenex, I can’t stop laughing…


Reality Check

Then when the Judge complains; Waage denies making the call; Hill is found to be the culprit; the Tribune will defend Hill with all the yellow ink they can spare; Hill’s slavish sheep supporters will blame Waage for being a “complainer” / “trouble maker” and Hill will once again get to go about his childishly vicious attacks unscathed.


MaryMalone

=)


I’d change the last line to “This is Karen Velie…” as she seems to be in his sites these days.


taxpayer

So, exactly what amount will Dee Torres have to pay for Mike Brennler’s legal fees and where will the money come from?


rogerfreberg

Often times when one wins a suit like this… people often refuse to pay up. The key is to then have their wages garnished… which works just fine in California!


taxpayer

Thanks for the info.


Kevin Rice

Whoa! Hold on, now, taxpayer. Justice works slowly. We don’t even have a ruling yet. Any motion for fees/costs will come later. However, since Torres filed personally, it would seem that it would come from her personally–or some benefactor. That is not on the table today. One step at a time. Tomorrow appears to be looking up.


taxpayer

Kevin, I’m fully aware of that. It was merely a question of process. And, yes, tomorrow is shaping up to be a good day.


Kevin Rice

I figured you were aware; excellent question anyway. Any amount would be itemized in a motion for costs later down the road–presuming we get there. A hearing on that motion would be scheduled a few weeks after the motion is filed. These things drag on. Long side trips often occur.


MaryMalone

It may not be on the table today, but a girl can dream about the day when it may be on the table.


Kevin Rice

Are you Cherie Aispuro?


MaryMalone

You rascal.


Slowerfaster

Mike Brennler is not your traditional, functionary, whistle blower.

He has a personal agenda, as does his ‘star’ witness, Mr. Almirol.


Judge LaBarbara should take this into acccount, lest he be played like a violin in the justice system he represents.


Kevin Rice

Wrong. Read the tentative. If Torres is a public person (which nearly everyone agrees that she is), then the law doesn’t even look at personal agenda (malice, or otherwise). The law is only concerned with prima facia fact here. Everything else is spin and activist judge territory. Glad we don’t have that.


bmax

Wrong, Kevin. When the party is a public figure in a defamation case, that is exactly what the court looks at–can the plaintiff prove malice as the motivation.


Read the landmark case, New York Times v Sullivan.


And, get your facts straight next time.


Kevin Rice

Hey, you are absolutely correct! Good catch.


I should not have written ‘malice’. What I intended to express is the law does not concern itself with the political philosophy of SLAPP defendants which is fundamental free speech expression. Absent ‘actual malice’, individuals are free to oppose public persons in regards to subject matter concerning the public interest to a much greater extent than private persons. Free speech protections and precedents actually encourage such vigorous expression.


The 9th Circuit Court opined in 2010 (Rodriguez v. Maricopa Co. Comm. College):


“The right to provoke, offend and shock lies at the core of the First Amendment.”


“The Constitution embraces such a heated exchange of views, even (perhaps especially) when they concern sensitive topics like race, where the risk of conflict and insult is high. Without the right to stand against society’s most strongly-held convictions, the marketplace of ideas would decline into a boutique of the banal, as the urge to censor is greatest where debate is most disquieting and orthodoxy most entrenched.”


Moreover:


“Intellectual advancement has traditionally progressed through discord and dissent,

as a diversity of views ensures that ideas survive because they are correct, not

because they are popular. […] But that role in our society will not survive if certain

points of view may be declared beyond the pale.”


In the instant case, ‘actual malice’ is, in fact, proscribed as it has no place in healthy dissent.


Let me know if I’ve got my facts straight this time! Appreciate your help.


r0y

If by “personal agenda” you mean “being honest with us and serving the homeless instead of robbing and manipulating them” then sure, I bet he does have a personal agenda.


Agendas are not evil (like Corporations are not); people are. It’s like blaming guns for shootings, or ropes for lynchings.


rogerfreberg

Well, one can easily demonstrate that an individual is a public figure or an issue is of public interest is to simply copy off all the media on the subject or on the issue.


For example, as I seem to remember Dee Torres was in the news well before these latest episodes.


The tentative ruling seems ruling reasonable assuming Mike B’s legal costs are covered.


This of course — in my not so humble opinion, makes Dee Torres case against CCN and Dave Congalton much much more difficult if not impossible.


Kevin Rice

Excellent and detailed tentative, Judge LaBarbara!