San Diego University Law Professor Shaun P. Martin has prevailed in a bizarre lawsuit filed by Melanie Welch, who sued Martin for defamation after he discussed her case on his blog. In addition, the court imposed attorney fees against Welch for the litigation. The case is Welch v. Univ. of San Diego (Cal. App. 2015) and constitutes a victory for free speech protections.

Martin has a blog that discusses recent rulings and Welch v. State Teachers’ Retirement System, 203 Cal.App.4th 1 (2012) (Welch III), caught his eye. Welch obtained a reversal of an unfavorable judgment and Martin wrote that the opinion seemed “facially” correct and was perhaps “correct as a legal matter.” He then added “maybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.” That seems pretty mild but Welch demanded a retraction of the article and, when Martin refused, filed the present action against Martin and others alleging defamation. It was clearly a frivolous lawsuit in my view.

The case began with an attack at a school. Two months after she began to work at the Oakland Unified School District in September 1998, Welch was attacked by a group of students while working at a middle school in Oakland. Welch had taken a hat from two students who were arguing over it on a stairway landing and was then attacked and injured. The next day, the principal asked her to return to work but instead she filed a complaint about school safety. Welch was subsequently physically cleared to return to work, but continued to refuse to do so and the District later put her on administrative leave with pay while it investigated allegations of erratic behavior, including hitting and kicking children at the middle school. That was in November and the following February, the District terminated her contract. After Welch filed a petition for writ of mandate to challenge her employment termination, the trial court entered judgment in Welch’s favor and ordered the District to reinstate her as a probationary employee along with back pay and benefits, because the District’s termination was without adequate notice and without an opportunity to appeal. That ruling was affirmed by the appellate court. Now we move to June 30, 2001, when the District terminated Welch again — this time using proper procedures. Welch brought contempt proceedings for failing to reinstate her, but the trial court denied her application and the appellate court affirmed. (Welch v. Oakland Unified School Dist. (Cal.App. 1 Dist., Jul. 28, 2005) 2005 WL 1785339.) That case led to the decision in Welch III that was the subject of Martin’s blog entry.

Welch was seeking in 2005 to obtain disability retirement benefits from the California State Teachers’ Retirement System (CalSTRS) based on her claim the October 1998 attack left her totally disabled and unable to return to work since that date. She claimed that during a phone call the CalSTRS representative allegedly misinformed Welch of the eligibility requirements for disability retirement by telling her there were no exceptions to the requirement that the member must have five years of credited service to apply for disability retirement benefits. However, Welch could have been eligible with less than five years of credited service if she was disabled as the direct result of a bodily injury suffered from an attack while she was working. Due to the misinformation, Welch did not apply for disability at that time. After learning of the misinformation and “physical attack exception” in 2005, Welch applied for benefits. CalSTRS rejected Welch’s application for disability retirement benefits on the ground the medical documentation she provided did not substantiate that she had been disabled since her last day of work in 1998. An administrative judge issued a proposed decision in which he cited Welch’s lack of credibility and the absence of any corroborating evidence and also concluded there was no evidence she had been continuously incapacitated from her last day of actual performance. However, in the later administrative mandamus proceeding in the superior court, the trial court contradicted the ALJ and found that Welch was misinformed by the CalSTRS representative in 1999 about the eligibility requirements. However, it still concluded she did not qualify for benefits because the weight of the evidence did not establish she was disabled since the 1998 attack. That decision was then reversed in Welch III, though the court noted evidence to support a finding she was not disabled since 1998. The Court found that Welch was entitled to remand because “CalSTRS should not be allowed to take advantage of its own errors.”

Ok, we are now up to the point where Martin enters the picture. On April 2, he wrote a blog entry a few hours after Welch III was published online discussing many of the facts apparently adverse to Welch’s substantive claims, and concluded that, even though the ALJ found her “not credible” and the trial court found she should be denied benefits because she could not show she was disabled in 1999, “the Court of Appeal reverses [and held] that this all might well be [CalSTRS’s] fault and strongly hinting that Welch should get benefits. [¶] . . . [¶] . . . [M]aybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.” Welch demanded a retraction and called the blog defamatory, which it clearly was not. She even contacted the San Diego Dean Stephen Ferroulo asking him to review the article. While Ferroulo should have just said that this is a matter of academic and personal freedom of speech and declined to get involved, he replied and appeared the article was reasonably consistent with the facts as stated in Welch III. That only added the law school to Welch’s list of plaintiffs.

The Court lists the alleged six defamatory statements were contained in the article:

A. Martin’s statement “let’s read between the lines a little bit to figure out what’s really going on here.”

B. Martin’s statement that the District placed her on administrative leave with pay while it investigated allegations of her erratic behavior, including hitting and kicking children at the middle school, after which Martin stated it was “[m]y strong sense is that these are not new allegations, and that stuff has been going on for a while. Perhaps consistent with her taking the hat of a kid that led to her getting attacked.”

C. Martin’s statement, which commented on Welch’s claim that Welch’s principal had told her that (if she filed a complaint about school safety) he could produce “20 kids who would say that she hit and kicked them,” that “maybe the principal was stupid enough to make such a threat . . . . Or maybe Welch is just making things up. Let’s try to remember that when we’re assessing equity and credibility.”

D. Martin’s description of the original phone call to CalSTRS in which “Welch says she made her phone call and was falsely told she didn’t qualify for benefits. A call to an unnamed person on an unknown date with no evidence other than Welch’s testimony.” [*10]

E. Martin’s statement that “Welch may be totally disabled and unable to work. But that didn’t stop her from prosecuting her case in pro per. Which she does successfully.”

F. Martin’s statement that “maybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view.”

The trial court dismissed the lawsuit and California’s Fourth District Court of Appeal affirmed dismissal.

The decision is based on the state’s anti-SLAPP law which provides, in relevant part, that “[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 a 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.” (§ 425.16, subd. (b)(1).)

The court laid out the standard:

To establish her defamation claim, Welch must prove the publication contained a statement of fact (which can support a defamation action) rather than an expression of opinion (which cannot) that was false, defamatory, unprivileged, and had a tendency to injure or cause special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Although mere opinions are generally not actionable (ibid.), a statement of opinion that implies a false assertion of fact can be actionable. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19 (Milkovich).) However, “An opinion . . . is actionable only ‘”if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.”‘” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471.) Thus, the inquiry is not merely whether the statements are fact or opinion, but “‘whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.'” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The courts apply a “totality of the circumstances” test to determine both whether (a) a statement is fact or opinion, and (b) a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself [*14] and the context in which the statement was made. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385-386 (Franklin).) “Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense . . . . [¶] Next, the context in which the statement was made must be considered.'” (Id. at p. 385.) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 (Overhill).)

Even where the publication contains a statement of fact that is false and defamatory, an anti-SLAPP motion should nevertheless be granted where the plaintiff cannot establish a probability of prevailing on a defamation claim because the publication was absolutely privileged.5 (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784.) The law confers an absolute privilege for a fair and true report of a judicial proceeding in a public journal (Civ. Code, § 47, subd. (d)), and applies if the substance of the publication captures the gist or sting of the statements made in the official proceedings. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 351.) In assessing this question, the publication is to be measured by the natural and probable effect it would have on the mind of the average reader to whom the publication was directed. (Franklin, supra, 116 Cal.App.4th at p. 389.) Where, as here, there is no dispute as to what occurred in the judicial proceeding reported on or as to what was contained in the allegedly defamatory publication, the applicability of the privilege is a question of law. (McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 976.)

Welch advanced some truly bizarre claims like her attack on the application of the privilege afforded to Martin by stating that Martin fell under an exception when a communication to a public journal that “[v]iolates Rule 5-120 of the State Bar Rules of Professional Conduct” (Civ. Code, § 47, subd. (d)(2)(A)). Yet, that rule is clearly designed for an attorney “who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” (Rules Prof. Conduct, rule 5-120(A), italics added.) Obviously, Martin is an attorney but not someone involved in such a case.

The court found that the words of Martin were clearly opinion and were not defamatory. It then awarded appellate fees to Martin.

Congratulations to Professor Martin and the San Diego Law School.

You can read the opinion here