Tuesday, March 10, 2009
In an unpublished opinion out of the 1st Circuit court of appeal (California), the court reversed the lower court. Plaintiff had sued a San Francisco newspaper and its reporter/photographer for invasion of privacy. The defendants filed an anti-SLAPP motion. The trial court found in favor of the plaintiff and allowed the case to proceed.
In the present case, the trial court erred in finding that section 425.16 categorically does not apply to a complaint for assault. Our Supreme Court has stated: "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability--and whether that activity constitutes protected speech or petitioning. Evidently, '[t]he Legislature recognized that "all kinds of claims could achieve the objective of a SLAPP suit--to interfere with and burden the defendant's exercise of his or her rights." ' [Citation.] 'Considering the purpose of the [anti-SLAPP] provision, expressly stated, the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights' [citation]." ...
There can be no question that reporting on a witness who testifies at a criminal trial involving a high-level public official charged with corruption is protected activity under section 425.16, subdivision (e)(4). And the complaint contains no allegations suggesting that Choy was acting in any capacity other than as a reporter gathering information on a news story when the alleged assault occurred.
Even if the alleged assault, standing alone, would not otherwise constitute protected conduct, Choy's actions must be evaluated in their entirety: " '[W]here a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is "merely incidental" to the unprotected conduct [citations] . . . .' ...
Here, the gravamen of respondent's action was based on appellants' First Amendment right to report on issues of public interest. Choy's protected conduct of reporting on respondent's testimony at the Fallay trial was not "merely incidental" to the conduct alleged to be an assault. Moreover, Choy's evident purpose in attempting to push aside respondent's hand and briefcase (assuming that she, in fact, did so) was to take photographs of him for her news story. Accordingly, the complaint alleges conduct that is protected by section 425.16.
The case is Yan v. Sing Tao Newspapers San Francisco, 2008 Cal. App. Unpub. LEXIS 7644.