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May 9, 2013Thanks to a USC alum, Class of 1990 from down Florida way, this question came our way after last week's Podcast. And it's a good one, getting us back to what matters at a somewhat football-free time when we can all refresh our memories. And so we will.
Here's his question -- and challenge:
"After listening to Dan talk about what USC should/could be doing in regards to the sanctions USC is currently under, I think we might be talking out of both sides of our mouth a little. When all of this went down, the school was getting hammered for speaking out against the NCAA. Many said the sanctions were so severe because the administration called out the NCAA, saying it was a witch hunt, and the only way that anyone was going to beat USC. Many were saying that if USC had been more accepting, shown a little more understanding and "owned up" to their violations that the NCAA would have gone softer on USC.
Mike Garrett was even fired because of his so called arrogance against the NCAA.
So in comes the "Kinder/Gentler" USC and people are upset that they are not taking a more aggressive approach with the NCAA.
I understand that there is no way to make everyone happy all of the time, but I do think we as fans we need to remember part of what got us here."
Our questioner is right, in one way. My first column for USCFootball.com more than three years ago called out USC for allowing the NCAA case to drag on, said USC should have figured out a way to take control of things in the first year, worked with Reggie Bush to be more forthcoming (for his and USC's benefit), pleaded to certain shortcomings and ended it with what now, looking back, would have clearly seemed like a slap on the wrist before the momentum picked up to hammer USC after the case went into its third year and beyond.
But not now. Not after the absolutely indefensible assault by the NCAA on former USC athletes, current student-athletes, coaches, fans and the entire Trojan community for what was almost an entirely made-up major infractions case where the NCAA violated almost every single one of its own rules. And had to connect Todd McNair to it in a way that would allow the NCAA to overpenalize USC the way it did.
Collateral damage? Todd McNair? Who cares, the NCAA said. He's a bad guy, they said in unconscionably unfair and against-their-own-rules emails they now want to keep secret. Get him. Burn him, they said. And so they did. And didn't think twice about it. And now, at least, they're being made to -- by Todd McNair.
Of course, they won't think twice about Abe Markowitz, we're afraid. Take away an innocent student-athlete's scholarship after five years and his right to stay and play at USC even if USC is well under the 75 allowed in the fall? Too bad. More collateral damage. We hope we're wrong here but if history is any guide, or strong action by USC required, we don't like the looks of this.
But Abe is certainly one more reason for USC to "Fight On." The way Ohio State, Auburn and North Carolina did and Oregon and Miami are.
So here's what we're going to do the next couple of days. First, we'll give you the Nov. 21 ruling by Judge Frederick Shaller in LA District Court to the NCAA's motion to get McNair's lawsuit dismissed. Much of it you won't care about or understand, same as all of us non-lawyers, but there are plenty of nuggets here from an impartial trier of the facts that should make your hair stand on end.
This ruling was updated Dec. 7 by Shaller sealing the file as part of the NCAA's appeal of his strong denial of the organization's anti-SLAPP motion to dismiss McNair's lawsuit after it found him guilty of unethical behavior. Here is that update:
"The Documents lodged conditionally under seal by both parties in connection with the NCAA's special motion to strike may not be filed by the Court unless and until (1) there is a final appellate court ruling affirming this court's November 21, 2012 ruling denying the NCAA's motion to seal and (2) unless the NCAA informs the clerk in writing within ten days thereafter that the record should be filed."
The estimate then was that could take was from six to 12 months so that moves us to as close as a month maybe in the shortest case scenario.
On Friday and Saturday, we'll publish the full transcripts from the two hearings in the McNair-NCAA case with some quick legal analyisis. But the idea here is for you to have the basic info in the case in one place. We'll highlight for you some of the more important points in Judge Shaller's 10-page slapdown of the NCAA.
JUDGE SHALLER'S RULING IN MCNAIR-NCAA CASE
Case Number: BC462891 Hearing Date: November 21, 2012 Dept: 46
Case Number: BC462891
TODD MCNAIR VS THE NATIONAL COLLEGIATE ATHLETIC ASSOC ET AL
Filing Date: 06/03/2011
Case Type: Defamation (Slander/Libel) (General Jurisdiction)
Defendant's Special Motion to Strike the Complaint -- CCP ? 425.16 (Anti-SLAPP); Defendant's Motion to Seal Portions of the Court File
Motion is DENIED. Plaintiff has shown a probability of prevailing on the defamation claims, which are the only claims "arising from" a protected act and subject to the anti-SLAPP statute. The remaining claims aside from the defamation action do not arise from the alleged defamatory publications and therefore are not subject to being stricken under the statute. The motion to seal a portion of the record is DENIED as Defendant has not made a sufficient factual showing to warrant sealing.
(1) Evidentiary Objections:
(1)(a) Plaintiff's Objections to Defendant's Evidence
(1)(a)(i) Wystma declaration. Exhibits 4-7 of the Wystma declaration (filed in Volume 2) are newspaper articles. Objections are
(1)(a)(i)A They are not offered for truth of the matter asserted.
(1)(a)(i)B Their existence is offered to show that Plaintiff is a public figure as a former professional football player, and that his hiring at USC in 2004 was covered by newspaper agencies.
(1)(a)(ii) Guillory v. NCAA. Exhibit 8 is a court order in another case Guillory v. NCAA granting NCAA's anti-SLAPP motion to strike. Objection is SUSTAINED. The order in a different case is at least irrelevant but also hearsay.
(1)(a)(iii) Misstated Objection. Plaintiff objects to an Ex. 9, which is really Ex. 8. There is no Ex. 9.
(1)(b) Defendant's Objections to Plaintiff's Evidence.
(1)(b)(i) Tompsett Declaration ?1 Objection is OVERRULED. Tompsett was McNair's counsel who declares he was not made aware of emails circulated by Howard (member of the COI who was supposed to observe and not participate, but allegedly attempted to influence voting members of the COI) or Uphoff (NCAA coordinator of appeals) to voting members of the COI. This is relevant to Plaintiff's interference claims that NCAA acted in violation of their own rules to interfere (covertly) with McNair's contractual relationship and prospects with USC. This goes to the unfairness, arbitrary and capricious conduct during the hearing process.
(1)(b)(ii) McNair Declaration ??1, 4-13. Objection is OVERRULED. McNair denies as patently false various statements made in the Infractions Report and the Appeals Committee Report. Defendant claims lacks foundation. They are based on McNair's personal knowledge. In some cases he does explain why the statements are false, contrary to Defendant's objections.
(1)(b)(iii) McNair Declaration ??14-15. Objection is OVERRULED. Plaintiff lacked awareness of Howard's or Rodney's communications (purported attempts to influence the COI) to the members of the COI. This is relevant to the interference claims that NCAA conducted the investigations in violation of its own rules and procedures and in an unfair manner.
(1)(b)(iv) McNair decl 16. Objection is SUSTAINED on the basis of hearsay. Statements made by USC individuals regarding their intent to retain Plaintiff but inability to do so because of the unethical conduct findings.
(1)(b)(v) McNair decl ? 16. Objection is OVERRULED. McNair declares he was never informed that he was subject to discipline or that he was a target. This is relevant to his interference claims.
(1)(c) Plaintiff's objections to new evidence submitted with Defendant's reply brief. Objection is OVERRULED. There is no authority for the contention that Plaintiff's due process rights are denied by consideration of the new evidence or by not meeting the statutory notice requirements.
(1)(c)(i) Plaintiff's reliance on the summary judgment statute is not appropriate to this motion under CCP ?425.16.
(1)(c)(ii) The additional evidence submitted does not affect the outcome since ?[t]he court should not weigh the evidence. Rather, it must merely look to see whether the plaintiff has offered a prima facie showing of fact which would, if proven, support a judgment.? Church of Scientology v. Wollersheim (1996)42 Cal.App.4th 628, 653 .
(2) Ruling on anti-SLAPP motion. In analyzing an anti-SLAPP motion under CCP ? 425.16, the court must engage in a two-step process under Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67. Plaintiff?s burden is to show ?a probability of prevailing on the claim? Id.
(2)(a) The court must first determine whether Defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.
(2)(b) If such a showing under (2)(a) has been made, the court then determines whether the Plaintiff has demonstrated a probability of prevailing on the claim.
(2)(c) ?Probability of prevailing? involves a factual showing to establish his prima facie case. The court does not weigh the evidence. The court credits Plaintiff's evidence if it is admissible. "Minimal merit" will suffice. Matson v. Dvorak (1995) 40 Cal. App. 4th 539, 548; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 646; Hailstone v. Martinez (2008)169 Cal. App. 4th 728, 736 ["Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' . . . The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291. evertheless, a plaintiff cannot simply rely on his or her pleadings, even if verified. Rather, the plaintiff must adduce competent, admissible evidence."]
(3) Defendants have established the challenged cause of action arises from a protected activity.
The first prong (arising from protected activity) is met as the parties do not dispute that the published Infractions Report (Plaintiff's Ex. 1 attached to the declaration of Scott Carr) on which the defamation claims are based is protected activity as it is speech in connection with a public issue.
(4) Plaintiff has demonstrated a probability of prevailing on the defamation claim.
(4)(a) Plaintiff must establish all of the elements of a defamation claim. Those elements are stated in Wong v. Jing (2010) 189 Cal. App. 4th 1354 at page 1369 as follows:
"The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720 [54 Cal. Rptr. 3d 775, 151 P.3d 1185].) Civil Code section 45 provides, "Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."
? Additionally, as discussed below, Plaintiff must show actual malice in this case because Plaintiff was a public figure.
(4)(a)(i) The publications are the Infractions Report and the Appeals Committee Report. These reports are referenced in the Complaint at Paragraph 16 and are attached to the 09/25/2012 declaration of Scott H. Carr - the Infractions Report is attached as Plaintiff's Ex. 1 and the Appeals Committee Report is attached as Plaintiff's Ex. 23.
(4)(a)(ii) Plaintiff has established through admissible evidence that the Infractions Report dated June 10, 2010 (attached to the declaration of Scott Carr as Exhibit 1) contained material false statements regarding the 1/8/06 1:34 a.m. phone call.
(4)(a)(ii)A. Although the Complaint refers generally to a number of false statements, Defendant focuses on the statement referencing a January 2006, 2-minute telephone call between McNair and Lake (the purported agent for Bush). Plaintiff's Ex 1, page 23, ? b. It was this particular telephone call that the Committee on Infractions (COI) "remain[ed] particularly troubled by." Ex. 1, page 26, ?2.
(4)(a)(ii)B. The Infractions Report dated June 10, 2010 (attached to the declaration of Scott Carr as Exhibit 1) essentially summarizes the conversation and represents that Lake called McNair on 1/8/06 a 1:34 a.m. during which time Lake tried to convince McNair to get the "student athlete" to "adhere to the agency agreement" or reimburse the "agency partners" for money provided the "athlete." Ex. 1, page 23, indented ?b.
(4)(a)(ii)C. This conversation was purportedly corroborated by an interview with Lake wherein he confirmed McNair initiated the call at 1:34 a.m. on 1/8/06 because "that was like him trying to resolve it, you know, and like Reggie's wrong, he should make it right and basically don't implement [sic] the school." Plaintiff's Ex. 3, page 112-113.
(4)(a)(ii)D. Defendant admits it had telephone records showing that Lake (not McNair) initiated the 1/8/06 call. Reply, 4:2, which could reasonably cast doubt on the occurrence of the 1/8/06 conversation. But Defendant accepted the "gist" of the statement concerning that conversation, and reported that Lake had made the call (purportedly to conform with telephone records).
(4)(a)(ii)E. Defendant states that the statement is true because Lake did later say in his interview that he called McNair "a couple of times in January of 2006." Plaintiff's Ex. 3, page 115. The other calls may have taken place, but it is the substance of the 1/8/06 conversation that is at issue, and whether or not Defendant's report of it was a TRUE statement.
(4)(a)(ii)F. Plaintiff has shown the report regarding the 1/8/06 phone call was false because Lake testified that McNair made the call, which Defendant should have known was demonstrably untrue.
(4)(a)(ii)G. Defendant's attempt to minimize the discrepancy by arguing that "most of the facts disclosed are true" (Reply 12:1) does not change the fact that the Infraction Report's statement about the telephone conversation was false if based on the Lake interview.
(4)(a)(iii) Plaintiff has established through admissible evidence that the Infractions Report contained material false statements regarding the conclusion that McNair violated NCAA ethical conduct legislation by providing false and misleading information regarding his knowledge of this 1/8/06 1:34 a.m. phone call.
(4)(a)(iii)A. The statement in the Infractions Report that "the assistant football coach violated NCAA ethical conduct legislation by providing false and misleading information regarding his knowledge of this telephone call " is false since it is not supported by the interview that McNair gave. Plaintiff's Ex. 1, page 23, ? b.
(4)(a)(iii)B. Defendant says it conducted an interview of McNair on 2/15/08. He was asked about the late night telephone call that occurred January 8, 2005. McNair denied any knowledge. Defendant's Supplemental Reply Brief ("Reply'), Ex. 2, page 37. This was not a lie the documented call at issue was in the year 2006, not 2005.
(4)(a)(iii)C. Defendant's arguments to the effect of claiming that Johanningmeier made a mistake and misspoke, as stated in the Reply at 5:20, are not helpful because Defendant also admits that the NCAA decided against a third interview to clarify the date.(As stated in the Reply at page 5, fn 2.) This refusal to re-interview in the court's judgment amounts to an admission that there was no credible evidence to support that Plaintiff lied about the 2006 telephone conversation as reported in the Infractions Report.
(4)(a)(iii)D. The court also rejects Defendant's arguments to the effect that the claim that McNair lied (provided false and misleading information regarding his knowledge of the telephone call) are not actionable statements because these statements are "conclusions on credibility" and as such are opinions that are generally not actionable in a defamation action. Even if the statements could be characterized as opinion, they are based on demonstrably false facts, as Plaintiff has shown, and therefore, they remain actionable, according to the authority citied by Defendant.
(4)(a)(iii)D-1 The Infractions Report asserts facts, not opinions. The Infractions Report contained factual assertions that McNair had a substantive telephone call with Lake that proved his knowledge that the athlete (Bush) was improperly receiving benefits, and then lied about it. This is not a judgment on credibility. They are assertions of fact capable of proof.
(4)(a)(iii)D-2 Defendant's own cited authority undermines its claim that the statements were "opinion" defined as "not capable of proof." Even if the statements could be characterized as opinion, they are based on demonstrably false facts, as Plaintiff has shown, and therefore, they remain actionable.
* Hofmann Co. v. E. I. du Pont de Nemours & Co. (1988) 202 Cal. App. 3d 390, 397 [An "opinion" is "a view, judgment, or appraisal formed in the mind . . . [a] belief stronger than impression and less strong than positive knowledge" -- is the result of a mental process and not capable of proof in terms of truth or falsity."]
* Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal. App. 4th 515, 527 ["In other words, an opinion or legal conclusion is actionable only 'if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.' [Citation.] Thus, an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion. [Citation.] An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true. [Citation.] An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false."
(4)(a)(iii)E. Defendant's argument to the effect that the COI's "conclusions as to credibility" is not actionable since Plaintiff did lie about going to a San Diego party does not address the false statement about a substantive telephone call that Plaintiff was accused of having. Going to a party and lying about it was not a part of the allegations concerning NCAA violations.
(4)(a)(iv) The weight of authority establishes that Plaintiff is a public figure as a former professional athlete and assistant coach and has to show actual malice. The court finds that Plaintiffs have proved actual malice in this case.
(4)(a)(iv) A. McNair falls within the legal definition of public figures. "The courts have 'defined two classes of public figures.' The first is the 'all purpose' public figure who has 'achiev[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.' The second category is that of the 'limited purpose' or 'vortex' public figure, an individual who 'voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues." McGarry v. University of San Diego, 154 Cal. App. 4th 97, 113 (Cal. App. 4th Dist. 2007). Professional athletes fall in this category. At minimum, McNair is a limited public figure because he voluntarily accepted the position as an assistant coach. This voluntary acceptance was publicized and thus, according to the evidence produced by Defendants, Barry v. Time, Inc., 584 F. Supp. 1110 (N.D. Cal. 1984) is applicable to this case. Barry held at pages 1118-1119:
"Barry's voluntary decision to become head basketball coach is a sufficient "thrust" within the meaning of Gertz to create limited public figure status, since the responsibilities of the position he accepted inevitably put him at the center of public attention regarding a continuing public controversy. As the Waldbaum court noted, Sometimes position alone can make one a public figure. See Curtis Publishing v. Butts [citations omitted]; Chuy v. Philadelphia Eagles Football Club, 431 F. Supp. 254, 267 (E.D. Pa. 1977), aff'd, 595 F.2d 1265 (3d Cir. 1979) (en banc). The position itself may be so prominent that any occupant unavoidably enters the limelight and thus becomes generally known in the community -- a general public figure. Similarly, the responsibilities of a position may include decision making that affects significantly one or more public controversies, in which case the occupant becomes a limited public figure for those controversies.  Waldbaum, 627 F.2d at 1299-1300 n.36 (emphasis added). This conclusion is consistent with a long line of cases, beginning with the Supreme Court's opinion in Butts, which have found professional and collegiate athletes and coaches to be public figures."
(4)(a)(iv)B. The definition of actual malice as applied by the court is stated in the case of Mosesian v. McClatchy Newspapers (1991) 233 Cal. App. 3d 1685 at page 1694: "For this reason, in order to recover damages for a defamatory falsehood relating to his official conduct, a public official must prove the statement was made with knowledge that it was false or with reckless disregard of whether it was true or false. ( Id. at p. 280 [11 L. Ed. 2d at p. 706].) [E]rroneous statement is inevitable in free debate, . . . [yet] it must be protected if the freedoms of expression are to have the 'breathing space' that they 'need . . . to survive,' . . ."."
(4)(a)(iv)C. Adequate admissible evidence has been produced by both parties to support the court's conclusion that the statements in the Investigation report were made with actual malice.
(4)(a)(iv)C - 1 As noted above, the statement in the Infractions Report as to the Plaintiff's telephone conversation with Lake misrepresented Lake's own testimony in his interview. Defendant had evidence to prove that McNair never initiated that January 2006 call as Lake claimed.
(4)(a)(iv)C ? 2 Defendant admits that it knew that its interviewer mistakenly asked Plaintiff about a January 2005 telephone call, which was not proven by telephone records. Realizing its mistake "the NCAA decided against a third interview to clarify the date." Reply page 5, Fn 2. Yet Defendant's Investigative report flatly states that Plaintiff provided false information "regarding his knowledge of this telephone call." Plaintiff's Ex. 1, page 23 ?b.
(4)(a)(iv)C ? 3 Plaintiff cites additional evidence in the form of emails, where at least one COI member acknowledged that the interview with McNair was "botched." Eleanor Myers, an NCAA committee member, who signed the Infractions report (Plaintiff's Ex. 1) said: "On the other side, we have a botched interview in which McNair did not have a good opportunity to explain the call, since the date the staff questioned about him was wrong. (2005 instead of 2006)." Plaintiff's Ex. 30, Bates Stamp #046416.
(4)(a)(iv)C 4 Meyers acknowledged that the evidence needed to reach a high threshold: "To make an unethical conduct finding, I think we would need to be pretty confidant [sic] that we knew the content of the Jan 8 call from Lake to McNair and that it was a threatening call and McNair lied about it." Plaintiff's Ex. 11, Bates Stamp #009032. Even after the mistake came to light, the Infractions Report still maintains that McNair lied about his knowledge of the call.
(4)(a)(iv)D. "Malice" is found in cases such as this case because there is "sufficient evidence to permit the conclusion that the Defendant in fact entertained serious doubts as to the truth of his publication" and still published it. St. Amant v. Thompson, 390 U.S. 727, 731 (1968) held: "These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice."
(4)(a)(v) Defendant has not shown the existence of a privilege, which would otherwise negate the 4th element of a defamation claim.
(4)(a)(v)A. Defendant's argument that the common-interest privilege codified by Civ Code ?47(c) is inapplicable since the existence of malice defeats the privilege. Noel v. River Hills Wilsons, Inc., 113 Cal. App. 4th 1363, 1370 (Cal. App. 4th Dist. 2003).
(4)(a)(v)B. Under Civ. Code ?47(c), "[a] privileged publication or broadcast is one made:
" In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.
This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer's agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law."
(4)(a)(v)C. "Malice" as defined under this privilege which is necessary to defeat the privilege is a showing of ill will or hatred. "The malice necessary to defeat a qualified privilege is "actual malice" which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights (citations). 'The malice referred to by the statute is actual malice or malice in fact, that is, a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person." Noel v. River Hills Wilsons, Inc. 113 Cal. App. 4th 1363, 1370 (Cal. App. 4th Dist. 2003).
(4)(a)(v)D. McNair has met this standard of showing malice sufficient to defeat the privilege. In addition to the evidence cited by Plaintiff showing reckless disregard for the truth, Plaintiff proffers emails between Howard, a COI member, Cooper an NCAA employee, and Uphoff an NCAA appeals coordinator that tend to show ill will or hatred.
(4)(a)(v)D-1 From Cooper to Uphoff: "I'm concerned as well. As Roscoe said at some point during the Sunday morning deliberations, individuals like McNair shouldn't be coaching at ANY level, and to think he is at one of the premier college athletics programs in the country is outrageous. He's a lying morally bankrupt criminal, in my view, and a hypocrite of the highest order. I'm even more convinced of that after reading the e-mail from Cheryl containing the excerpt from the hearing transcript. He lied when questioned about his criminal background and lied throughout the hearing." Plaintiff's Ex. 29, Bates #046372.
(4)(a)(v)D-2 Howard wrote a 4-page email to COI members and other individuals apparently to persuade the members that McNair lied numerous times and states, "I hope none of you was insulted by this rant. I know not everyone agrees with me [and I am hoping that at least some does] but USC's approach to this case I have found very troubling, and downright insulting." I found their general counsel close to obstructionist and am thoroughly convinced that what they want from this hearing has nothing to do with helping us learn what actually happened." Plaintiff's Ex. 31, Bates #009042.
(5) Defendant's argument that the remaining tort and contract claims should also be dismissed since they are merely "restyled" defamation claims alleging damage to McNair's coaching career lacks merit.
(5)(a) The remaining claims do not arise from the alleged defamatory publications. Thus the 'take out' of other claims authority of Gilbert v. Sykes, 147 Cal. App. 4th 13, 34 (Cal. App. 3d Dist. 2007) does not apply. Thus, even if the defamation claim would be stricken the other claims may be presented.
(5)(b) The remaining claims set forth in the Complaint at paragraphs 31, 38, 46, 52, 56 (as stated in part below) are not premised on the alleged defamatory publications. The claims arises from Defendant's conduct in handling the investigation and appeal and findings arising from an allegedly flawed process, that Plaintiff claims were unfair, arbitrary and capricious. As such, the burden does not shift to Plaintiff to show a probability of prevailing on these claims. The following allegations are not subject to being stricken under the anti-SLAPP statute.
"Defendant breached the contract contained therein by acting arbitrarily and capriciously in the manner in which they enforced their rules, by denying Plaintiff the opportunity to participate fully in the adjudicatory process, by failing to allow Plaintiff and/or his counsel the ability to be present during the questioning and/or to question witnesses against Plaintiff, to provide Plaintiff with an adequate and fair appellate process, and/or to otherwise treat Plaintiff fairly." Complaint ?31, 38, 46, 52, 56
(6) Regarding Defendant's request to seal the unredacted versions of the Plaintiff's Opposition to the SLAPP motion to strike, the motion is DENIED. Plaintiff has filed the unredacted versions of these documents conditionally under seal pursuant to the parties' stipulated protective order. The records sought to be sealed include:
* Unredacted versions of the opposition to the NCAA's Special Motion to Strike
* the Memorandum of Points and Authorities in support thereof,
* the Declarations of Scott Tompsett, Todd McNair, and Scott Carr,
* the following exhibits to the Declaration of Scott Carr: I
* (Committee on Infractions Report); 2, 33
* (confidential statements and memoranda); 3, 4
* (interview excerpts); 5
* (telephone records); 6:
* (notice of allegations); 7,8, 13
* (excerpts of deposition testimony); 10-12, 15-19, 21, 27-31
* (confidential emails between members of the Committee on Infractions); 20,32
* (excerpts of NCAA hearing transcripts); and 22
* (appeal of Todd McNair to the Infractions
(6)(a) Records cannot be sealed without a court order. CRC 2.551. "Unless confidentiality is required by law, court records are presumed to be open." CRC 2.550(d).
(6)(b) The court must make express findings to support sealing. These requirements as set forth in CRC 2.550(d):
" The court may order that a record be filed under seal only if it expressly finds that: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest." CRC 2.550(d).
(6)(c) The burden is on moving party to show compelling reasons for sealing records. "Since court records are public records, the burden rests on the party seeking to deny public access to those records to establish compelling reasons why and to what extent these records should be made private. ( Id., at p. 785.) Although a court has power to control its own records to protect litigants' rights "where there is no contrary statute or countervailing public policy, the right to inspect public records must be freely allowed." Mary R. v. B. & R. Corp. (1983) 149 Cal. App. 3d 308, 317 (1983).
(6)(d) The public has an interest in a general right of access in civil cases.
? "We believe that the public has an interest, in all civil cases, in observing and assessing the performance of its public judicial system, and that interest strongly supports a general right of access in ordinary civil cases. In a similar vein, respondent asserts that 'most civil cases, including the civil case here involved, are purely private disputes litigated by private persons, which become public only because the parties are unable to resolve them privately.' Assuming this is generally true, it does not assist respondent. As noted above, a trial court is a public governmental institution. Litigants certainly anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly elected judge, that the proceedings in their case will be adjudicated in public. As observed in State v. Cottman Transmission Systems, Inc., supra, 75 Md. App. 647, 542 A.2d 859, 864, "[a]n individual or corporate entity involved as a party to a civil case is entitled to a fair trial, not a private one." NBC Subsidiary v. Superior Court (`1999) 20 Cal.4th 1178, 1210-1211 [emphasis added].
? "In Estate of Hearst (1977) 67 Cal. App. 3d 777 [136 Cal. Rptr. 821] (Hearst), the court explained with regard to the related issue of access to filed litigation documents: "[W]hen individuals employ the public powers of state courts to accomplish private ends, . . . they do so in full knowledge of the possibly disadvantageous circumstance that the documents and records filed . . . will be open to public inspection." ( Id., at p. 783.) "[I]n a sense [such civil litigants] take the good with the bad, knowing that with public protection comes public knowledge" of otherwise private facts." NBC Subsidiary at 1211, fn 27 [emphasis added].
(6)(e) Moving party's burden of proof includes showing substantial prejudice with admissible evidence.
1. identify an overriding interest
2. a substantial probability that it will be prejudiced absent closure or sealing. Universal City Studios v. Superior Court of Los Angeles County (Universal) (2003) 110 Cal.App.4th 1273, 1283.
? The Universal court found the moving party did not demonstrate with admissible evidence that prejudice would occur.
? "No admissible evidence has been presented showing Defendant will be harmed if the [...] agreement or any of its nonfinancial terms are made public particularly in light of the 88 redactions which have deleted any reference to financial data." Universal at 1284.
(6)(f) Any agreement not to disclose, alone, is not enough to permit sealing the records.
"The rules for sealing records are mandatory, furthering the presumption and constitutional interest in open records. Records may not be filed under seal without a court order and the prerequisite motion and findings. (Rules 2.551(a), (b), 2.550(d), (e).) The trial court cannot rely solely on an agreement or stipulation of the parties as the basis for permitting records to be filed under seal." Savaglio v. Wal-Mart Stores, Inc., 149 Cal. App. 4th 588, 600 (Cal. App. 1st Dist. 2007).
(6)(g) Defendant has not identified a compelling reason to support sealing the record. Defendant's argument to the effect that the records contain confidential information concerning NCAA proceedings, which its bylaws require to be kept confidential, that making the records public will prejudice Defendant's interest in maintaining its confidentiality, and that guarantees of confidentiality ensure its ability to effectively investigate alleged violations does not meet the requirements of NBC Subsidiary. If the records are kept public, this will not interfere with Defendant's obligation to maintain confidentiality in its enforcement proceedings. Defendant's bylaws may bind Defendant's obligations with respect to confidentiality, but they do not affect the court's obligations to maintain the presumption and constitutional interest in open records. As NBC Subsidiary has recognized, litigants "certainly anticipate, upon submitting their disputes for resolution in a public court, before a state-appointed or publicly elected judge, that the proceedings in their case will be adjudicated in public." Id. at pages 1210-1211.
(6)(h) Defendant's reliance on Huffy Corp v. Superior Court (2003) 112 Cal.App.4th 97 is misplaced. That case concerned documents legally required to be kept confidential pursuant to the attorney-client privilege. ["A document which is protected by the lawyer-client privilege is not subject to the rule 243.1 et seq. findings requirements." Huffy Corp. v. Superior Court, 112 Cal. App. 4th 97, at 108.] Further CRC 2.550 (a)(2) expressly states that the rules "do not apply to records that are required to be kept confidential by law."
(6)(i) The Kansas case cited by Defendant is unpersuasive. First it concerned the discoverability of confidential information, not sealing records from the public, the latter of which implicates constitutional interests and a presumption of openness. [ "As to the documents in the NCAA's file which are relevant to the libel action, a determination must be made whether, as petitioners argue, the interest in maintaining the confidentiality of the NCAA's file outweighs the interest and need of the Birmingham Post Company to discover these documents." Berst v. Chipman, 232 Kan. 180, 187 (Kan. 1982)] Ultimately, the documents remained discoverable in that action. [ "Therefore, while we recognize the interest in preserving the confidential nature of these memoranda is substantial, it must give way to assure all the facts will be available for a fair determination of the issues in the libel action." Berst at 193 (Kan. 1982).]