Vanginderen v. Cornell University et al

Filing 39

REPLY to Response to Motion re 31 and 32 MOTION to Strike 25 Amended Complaint pursuant to Section 425.16 of the California Code of Civil Procedure by Cornell University, Bert Deixler. (Davidson, Clifford) Modified on 8/15/2008 - clarify text (vet).

Vanginderen v. Cornell University et al

Doc. 39

1 Nelson E. Roth, SBN 67350 2 CORNELL UNIVERSITY 3 Garden Avenue 4 Telephone: 5 6 7 8 9 10
300 CCC Building Ithaca, New York 14853-2601 [phone] Facsimile: [phone] [e-mail]

Bert H. Deixler, SBN 70614 e-mail: [e-mail] Clifford S. Davidson, SBN 246119 e-mail: [e-mail] PROSKAUER ROSE LLP 2049 Century Park East, 32nd Floor Los Angeles, CA 90067-3206 Telephone: [phone] Facsimile: [phone] Attorneys for Defendant,

11 CORNELL UNIVERSITY 12 ADDITIONAL COUNSEL AND PARTIES 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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LISTED ON FOLLOWING PAGE

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA KEVIN VANGINDEREN, Plaintiff, v. CORNELL UNIVERSITY, BERT DEIXLER, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 08-CV-736 BTM(JMA) Hon. Barry T. Moskowitz DEFENDANTS' CONSOLIDATED REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN FURTHER SUPPORT OF DEFENDANTS' SPECIAL MOTIONS TO STRIKE PLAINTIFF'S FIRST AMENDED COMPLAINT PURSUANT TO SECTION 425.16 OF THE CALIFORNIA CODE OF CIVIL PROCEDURE [Per chambers, no oral argument unless requested by the Court] Hearing Date: August 22, 2008 Time: 11:00 a.m. Place: Courtroom 15

Dockets.Justia.com

1 Lary Alan Rappaport, SBN 87614 3 PROSKAUER ROSE LLP 5 Facsimile: 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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2 Clifford S. Davidson, SBN 246119 4 Los Angeles, CA 90067-3206
Telephone: [phone] [phone]

e-mail: [e-mail]

e-mail: [e-mail]

2049 Century Park East, 32nd Floor

6 Attorneys for Defendant,
BERT DEIXLER

1 2 3 4 5 6 7

Defendants Cornell University ("Cornell") and Bert Deixler ("Deixler") (collectively, "Defendants") hereby submit their reply memorandum of points and authorities in further support of their special motions to strike the first amended complaint ("FAC") of plaintiff Kevin Vanginderen ("Plaintiff") in its entirety, with prejudice and without leave to amend. INTRODUCTION Plaintiff persists in his claims despite this Court's grant of Cornell's anti-SLAPP motion in

8 Plaintiff's first case against Cornell, No. 07-cv-2045 BTM (JMA) (the "2007 Action"), and yet 9 again fails to present persuasive legal arguments or competent evidence in support of those claims. 10 The Court should strike the present action and award to Cornell and Deixler its and his attorneys'
1 11 fees and costs.

12 13 A. 14

DISCUSSION The First Amended Complaint Is a SLAPP Suit In support of his claim that California Code of Civil Procedure § 425.16 (the "anti-SLAPP

15 statute") does not apply to the FAC, Plaintiff presents the same meritless arguments in his 16 Opposition as he did in the Opposition he filed in the 2007 Action and his reply to Defendants' 17 motions to strike the first complaint in this latest action. Cornell therefore incorporates herein the 18 Court's June 3, 2008 Order in the 2007 Action (2007 Action Dkt. #27) (the "June 3 Order") as
2 19 though set forth in its entirety.

20 22 23 24 25 27

Further, Plaintiff's arguments are inapt because the present action arises from statements

21 made in the course of Cornell's (and Officer Bourne's) investigation in 1983 and Cornell's
1

For the Court's convenience, defendants note that this Reply is substantially identical to

Defendants' Consolidated Memorandum of Points and Authorities in Support of Defendants' Special Motions to Strike Plaintiff's Complaint pursuant to Section 425.16 of the California Code

26 of Civil Procedure (Dkt. #26).
2

The June 3 Order was attached to the Supplemental Declaration of Clifford S. Davidson (Dkt

28 #27, 27-2).
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1 defense against the 2007 Action, rather than from a statement contained in a newspaper. The anti2 SLAPP statute applies to actions arising from "any written or oral statement or writing made in 3 connection with an issue under consideration or review by a legislative, executive, or judicial 4 body, or any other official proceeding authorized by law." Cal. Code Civ. Pro. § 425.16(e)(2). 5 See Salma v. Capon, Cal. App. 4th 1275, 1285-1287 (2008) (applying anti-SLAPP statute where 6 allegedly defamatory statements made in context of potential legal action); Healy v. Tuscany Hills 7 Landscape & Recreation Corp., 137 Cal. App. 4th 1, 5 (2006) ("Both section 425.16 and Civil 8 Code section 47 are construed broadly, to protect the right of litigants to the utmost freedom of 9 access to the courts without [the] fear of being harassed subsequently by derivative tort actions." 10 [internal quotations and citations omitted; alterations in original]). 11
Officer Bourne's statements in 1983 were part of an investigation giving rise to future

12 legal proceedings. Cornell's and Deixler's alleged statements in 2007 were made in the context of 13 a lawsuit before this Court. For these reasons and as discussed in Defendants' respective motions, 14 the anti-SLAPP statute applies. Plaintiff was required in his Opposition to demonstrate the legal 15 and factual sufficiency of his claims, which he did not (and could not) do. 16 B. 17
Plaintiff, Not Cornell, Has the Burden of Proof on This Motion Throughout his Opposition, Plaintiff insists ­ despite the plain language of the "anti-

18 SLAPP statute" and relevant case law ­ that it is Cornell's burden to demonstrate the merits of its 19 claims. Opp'n at pp. 7, 8, 17, 19, 20, 21. In fact, in the anti-SLAPP framework, it is Plaintiff who 20 bears the burden of demonstrating the sufficiency of his claims. Cal. Code Civ. Pro. § 21 425.16(b)(1); see, e.g., Metabolife Int'l v. Wornick, 264 F.3d 832, 840 (9th Cir. 2001) ("[Plaintiff] 22 must demonstrate that the complaint is legally sufficient and supported by a prima facie showing 23 of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."); 24 Paterno v. Superior Court, 163 Cal.App.4th 1342, 1347 (2008) (noting that Plaintiff bore burden 25 of persuasion after defendant demonstrated that complaint was a SLAPP suit). The Court should 26 reject Plaintiff's claims to the contrary. 27 28
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1 C. 2 3

The Discovery Rule Did Not Toll the Statute of Limitations; Each of Plaintiff's Claims against Cornell Is Time-Barred Despite Plaintiff's arguments to the contrary, (see Opp'n at pp. 18-19), his claims against

4 Cornell are barred by the one-year statute of limitations for defamation claims and disclosure torts. 5 Cal. Code Civ. Pro. § 340(c); Briscoe v. Reader's Digest Ass'n, Inc., 4 Cal. 3d 529, 543 (1971) 6 ("[A] false light cause of action is in substance equivalent to ... [a] libel claim, and should meet the 7 same requirements of the libel claim. . . ." (internal quotations and citations omitted)). Plaintiff 8 erroneously relies on Hebrew Academy of San Francisco v. Goldman for the proposition that the 9 statute of limitations began to run on December 15, 2007, when Cornell, through Deixler, filed the 10 unsealed police records. Opp'n at 18. In fact, that case supports Defendants' position that 11 Plaintiff's claims are barred. In Hebrew Academy, the California Supreme Court held that the 12 single publication rule, articulated most prominently in Shively v. Bozanich, 31 Cal. 4th 1230, 13 1237 (2003), applied to all publications regardless of how widely or narrowly distributed. Hebrew 14 Academy of San Francisco v. Goldman, 42 Cal. 4th 883, 887 (2007). Hebrew Academy therefore 15 appears to have overruled relevant parts of Shively, which Plaintiff cites in support of application 16 of the discovery rule. Opp'n at 18-19. 17
Even if Shively still is good law and the discovery rule applies to defamatory statements

18 hidden from view or "communicated in an inherently secretive manner," Bozanich, 31 Cal. 4th at 19 1230, that rule does not avail Plaintiff. The alleged defamation here is not, for example, contained 20 in a personnel file hidden from view. See Id. (distinguishing Manguso v. Oceanside Unified 21 School Dist., 88 Cal. App. 3d 725 (1979)). While after Hebrew Academy the discovery rule might 22 still protect those who, "with justification, are ignorant of their right to sue," Hebrew Academy, 42 23 Cal. 4th at 894 (citing Manguso, 88 Cal. App. 3d at 731), Plaintiff possesses no such justification. 24 He was accused in a criminal proceeding with multiple counts of larceny and burglary, and entered 25 a guilty plea. June 3 Order at 1:20-2:3. Plaintiff and his defense counsel in that proceeding 26 undoubtedly received the prosecution's evidence. Indeed, the Tompkins County District 27 Attorney's file submitted in connection with Cornell's Supplemental Request for Judicial Notice 28 in support of its anti-SLAPP motion in the 2007 Action, (Dkt # 13), contains Plaintiff's signed
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1 confessio n, (Exhibit F, pp. 25-26); the district attorney's notice of intent to use admissions served 2 on plaintiff's counsel and filed in court, (Exhibit F, pp. 35-36); Plaintiff's discovery demands, 3 (Exhibit F, p. 70); Plaintiff's discovery motion, (Exhibit F, p. 75); and plaintiff's demand to 4 produce, (Exhibit F at page 79). Presumably, Plaintiff was satisfied with the evidence provided by 5 the District Attorney relating to the criminal case against Plaintiff. 6
Whether such evidence actually contained Officer Bourne's statement is irrelevant; the

7 criminal proceeding put him on notice of the statement. Plaintiff therefore cannot claim that the 8 alleged defamation was conveyed in an inherently secretive manner or that it was hidden from 9 view. In fact, it was disclosed to him openly as part of a criminal prosecution open to the public 10 and which he and his attorney actively participated. Whether such evidence actually contained 11 Officer Bourne's statement is irrelevant; the criminal proceeding put him on notice of the 12 statement. Plaintiff therefore cannot claim that the alleged defamation was conveyed in an 13 inherently secretive manner or that it was hidden from view. In fact, it was disclosed to him 14 openly. The statute of limitations applies with full force to bar Plaintiff's claims against Cornell. 15 D. 16 17
Defendants' Conduct Was Privileged and Does Not Fall Under Any Exception to the Litigation Privilege Plaintiff fails to present any evidence, much less the required "competent evidence," to

18 support his flaccid assertion that Defendants are ineligible for the litigation privilege pursuant to 19 the exceptions contained in Civil Code § 47(d)(2).3 This lack of evidence destroys any argument 20 Plaintiff thinks he has in this regard. 21
In any event, Defendants have engaged in no conduct falling under any of the three

22 exceptions contained in that section. The activities enumerated in § 47(d)(2) must have been 23 conducted in connection with a "communication to a public journal." Unlike the 2007 Action ­ 24 25
3

"Nothing in paragraph (1) shall make privileged any communication to a public journal that does

26 any of the following: [¶] (A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct. 27 [¶] (B) Breaches a court order. [¶] (C) Violates any requirement of confidentiality imposed by 28 law."
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1 which Plaintiff lost ­ the present action stems entirely from investigative statements maintained 2 and recorded in police files and documents filed in a litigation, not from any publicly-disseminated 3 publication.4 The exceptions contained in § 47(d)(2) simply do not apply to Defendants' conduct 4 because there was no communication to a public journal. See Declaration of Timothy Stanley 5 (Dkt. #33) ¶¶ 2, 3, 6. 6
Even if Defendants' conduct constituted "communication to a public journal," it did not

7 meet the description of §§ 47(d)(2)(A), (B) or (C). Defendants have not violated Rule of Conduct 8 5-120 because they have not made an "extrajudicial statement." Rather, they made a judicial 9 statement by filing documents with the Court. Defendants have breached no court order, and 10 Plaintiff has failed to identify or enter into evidence any such order. Defendants have not violated 11 any requirement of confidentiality, and Plaintiff has failed to identify any particular authority 12 imposing such a requirement. 13
Further, Plaintiff's discussion of § 47(d) is irrelevant as Defendants claim the privilege

14 contained in § 47(b). Deixler Mot. at p. 8; Cornell Mot. at pp. 7-10. That section "[A]pplies to 15 any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other 16 participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some 17 connection or logical relation to the action." Sengchanthalangsy v. Accelerated Recovery 18 Specialists, Inc., 473 F. Supp. 2d 1083, 1086 (S.D. Cal. 2007) (citing Silberg v. Anderson, 50 Cal. 19 20
4

If Plaintiff once again files a surreply ­ contrary to local rules ­ as he did in the 2007 Action, he

21 likely will argue that the filing of the unsealed criminal records was a "communication to a public 22 journal" because it was published with the knowledge and intent that it appear on Justia.com. 23 However, Plaintiff possesses not a shred of evidence in this regard (because there is none) and has 24 countered Defendants' competent Declaration of Timothy Stanley with mere paranoid assertions. 25 Opp'n at 16:17-17:24 (alleging conspiracy among Cornell, Google, Deixler and Justia.com to 26 destroy Plaintiff's reputation and claiming that "the Google company" is a "party in interest"). 27 Defendants never communicated with Justia.com regarding Vanginderen or the 2007 Action. See 28 concurrently-filed Supplemental Declaration of Timothy Stanley ("Stanley Decl.") (Dkt. #33) ¶ 6.
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1 3d. 205, 213 (1990)). For the reasons set forth in Defendants' respective motions, Defendants' 2 statements qualify for the litigation privilege and Plaintiff has presented no competent evidence 3 refuting any of the aforementioned factors. Defendants are absolutely immune from every tort 4 Plaintiff alleges, including any claim based on the California Constitution. Jacob B. v. County of 5 Shasta, 40 Cal. 4th 948, 960 (2007). 6
Finally, Plaintiff's claim that Officer Bourne was a police officer and therefore was not

7 making a statement to police is unavailing; it makes no difference if her statements "were ones 8 presumably made by a campus security officer and not statements made to an officer." See Opp'n 9 at p. 22. A statement by a "campus security officer" to others within the Department of Public 10 Safety is privileged under the common interest privilege: 11 12 13 15
A privileged publication or broadcast is one made . . . (c) 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.

14 Cal. Code Civ. Pro. § 47(c).5
Officer Bourne, an investigator with the Department of Public Safety, kept detailed notes

16 of her interviews and investigation regarding Plaintiff and his crimes. In some of her notes and 17 throughout her investigation, Officer Bourne stated her assessment of the case, such as the number 18 of incidents that appeared to be connected to Plaintiff. See, e.g., Declaration of Clifford S. 19 Davidson ¶ 3 & Ex. B, pp. 15-16, 18, 23, 27, 29-30, 33-36. Any such statements were part of 20 Public Safety's efforts to prevent further thefts. Officer Bourne's statements therefore clearly 21 were intended for others who shared her interest in protecting Cornell from criminal activity; who, 22 as Officer Bourne's colleagues, stood in a position to know her statements were made innocently 23 as part of her policing duties; and who requested that Officer Bourne provide the statements. The 24 common interest privilege therefore unquestionably applies and Officer Bourne's statements are 25 privileged regardless of whether those statements properly are viewed as by a police officer, to a 26 27
5

"Whether the [common interest] privilege exists in a particular case is a legal question for the

28 court." Coastal Abstract Serv., Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 735 (9th Cir. 1999).
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1 police officer, or both. Cal. Civ. Code § 47(a) ("A privileged publication or broadcast is one made 2 . . .(a) In the proper discharge of an official duty."); See Family Home & Finance Center, Inc. v. 3 Federal Home Loan Mortg. Corp., 461 F. Supp. 2d 1188, 1197 (C.D. Cal. 2006) ("The privilege 4 applies to a defendant acting to protect a pecuniary or proprietary interest and between parties in a 5 contractual, business, or similar relationship."); see also Taus v. Loftus, 40 Cal. 4th 683, 721 6 (2007) (collecting cases). Plaintiff has not, and cannot, defeat this privilege, which requires that 7 he demonstrate actual malice. Taus, 40 Cal. 4th at 721. 8 10 E. 11
Officer Bourne's statements therefore remain privileged against Plaintiff's claims

9 regardless of whose theory the Court accepts.
There Were No Private Facts to Disclose Defendants hereby incorporate by reference, as though set forth fully herein, the Court's

12 extensive findings of fact and conclusions of law described in the June 3 Order. For the same 13 reasons as in the 2007 Action, Plaintiff cannot demonstrate the legal or factual sufficiency of his 14 claim of public disclosure of private facts. The Ithaca Court files were never sealed, (June 3 Order 15 at 2:4-2:8), and Cornell was free to file them unredacted with this Court in the course of defending 16 against the 2007 Action. Further, once Plaintiff's additional criminal files were unsealed, they 17 were no longer private information. Plaintiff is entirely incapable of demonstrating otherwise. 18 19 20 21 22 23 24 25 26 27 28
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1 2 4 5 DATED: August 12, 2008 6 7 8 9 10 11 12 DATED: August 12, 2008 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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CONCLUSION As in the 2007 Action, Plaintiff should be taxed with Defendants' costs and attorneys' fees

3 in this matter.

Nelson E. Roth CORNELL UNIVERSITY Bert H. Deixler Clifford S. Davidson PROSKAUER ROSE LLP /s/ -- Clifford S. Davidson Clifford S. Davidson Attorneys for Defendant, CORNELL UNIVERSITY Lary Alan Rappaport Clifford S. Davidson PROSKAUER ROSE LLP /s/ -- Clifford S. Davidson Clifford S. Davidson Attorneys for Defendant, BERT DEIXLER

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