SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN DIEGO MINUTE ORDER DATE: 09/08/2015 TIME: 09:53:00 AM JUDICIAL OFFICER PRESIDING: Eddie C Sturgeon CLERK: Patricia Ashworth REPORTER/ERM: Not Reported BAILIFF/COURT ATTENDANT: /// DEPT: CASE NO: 37-2015-00011951-CU-MC-CTL CASE INIT.DATE: 04/09/2015 CASE TITLE: San Diegans for Open Government vs. San Diego State University [IMAGED] CASE TYPE: Misc Complaints - Other CASE CATEGORY: Civil - Unlimited APPEARANCES The Court, having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: San Diego State University Research Foundation and the Trustees of the California State University's special motion to strike pursuant to CCP 425.16 is GRANTED. Investigative Newsource and Loretta Hearns' special motion to strike pursuant to CCP 425.16 is GRANTED. To support a motion to dismiss action as a strategic lawsuit against public participation (SLAPP), the act underlying the plaintiff's cause or the act which forms the basis for the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech; it is not sufficient that the plaintiff's cause of action is filed after defendant's exercise of petition or free speech rights. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th 993, 1003.) The defendants have submitted undisputed evidence that this action arises from protected activity under C.C.P. § 425.16. As set forth in the undisputed declarations and exhibits, the contracts at issue are inextricably related to news gathering and dissemination, which is clearly protected activity under Section 425.16. (See Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164; Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143.) Second, if the defendant makes this showing, the trial court must determine whether the plaintiff has established a probability of prevailing on the claim. (Ibid.) To defeat the University Defendants' anti-SLAPP motion, SanDOG is required to submit "competent and admissible evidence" that it can prevail on its claims. (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236.) The Court finds Plaintiff did not meet its burden of showing by competent and admissible evidence that it has a probability of prevailing on the merits of its claim. DATE: 09/08/2015 DEPT: MINUTE ORDER Page 1 Calendar No. CASE TITLE: San Diegans for Open Government vs. CASE NO: 37-2015-00011951-CU-MC-CTL San Diego State University [IMAGED] Plaintiff asserts it satisfies the requirements of CCP 425.17(b) and is not subject to a special motion to strike under CCP 425.16. While at first glance this appears true, CCP 425.17(d) imposes limitations on the scope of subdivisions (b) and (c) and provides that subdivisions (b) and (c) do not apply to three categories: - (1) Any person enumerated in subdivision (b) of Section 2 of Article I of the California Constitution or section 1070 of the Evidence Code, or any person engaged in the dissemination of ideas or expression in any book or academic journal, while engaged in the gathering, receiving, or processing of information for communication to the public. - (2) Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general publication. - (3) Any nonprofit organization that receives more than 50 percent of its annual revenues from federal, state, or local government grants, or local government awards, programs, or reimbursements for services rendered. 1 Cal. Affirmative Def. § 12:38 (2d ed.) The claims in this case are based upon contracts to investigate and report on the news, which is specifically exempted from Section 425.17(b). (See C.C.P. § 425.17(d); see also Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050, 1067-68.) Specifically, Section 425.17, subdivision (d) makes it clear that Section 425.17, subdivision (b) does not apply to a person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service; and does not apply to an action that is based upon the "creation" or "dissemination" of "any dramatic, literary, musical, political, or artistic work .... " (C.C.P. § 425.17(d)(1)(2).) While subdivision (b) is to be construed narrowly, subdivision (d) is to be construed broadly. (See Major v. Silna (2005) 134 Cal.App.4th 1485, 1495.) Because the contracts between KPBS and inewsource to investigate and report on the news fall within these broadly enumerated categories, the claims in this case are exempt from the application of Section 425.17(b). Judge Eddie C Sturgeon DATE: 09/08/2015 DEPT: MINUTE ORDER Page 2 Calendar No.