What to Make of Ill Will

Hicks v. Richard, No. D074274 (D4d1 Sept. 17, 2019).

Defendant, who was chairman of an advisory board at a Catholic school wrote a letter to the Diocese, making various complaints about inappropriate behavior and poor performance by the school’s Principal. The Diocese ultimately fired the Principal, who then sued Defendant for defamation and IIED. Defendant filed an anti-SLAPP motion, which the trial court denied on the grounds that Principal came forward with evidence of the merit of his claims.

There’s not a lot of doubt that the claims arise from protected activity. Code of Civil Procedure § 425.16(e)(4), a catchall that addresses other conduct in furtherance of speech or petitioning in connection with an issue of public concern, has been interpreted to cover private forum speech on public issues. The issue here―the performance of a principal―was certainly important enough to a community of people to be a public issue. And, given that the complaint led to the Principal’s termination, it furthered the discussion of that issue, as now required in the test recently articulated by the Supreme Court in the FilmOn case.

So far as the merits go, the trial court erred when it found the claim was not barred by the Civil Code § 47(c) common interest privilege. Section 47(c) creates a qualified privilege for a communication made without malice to a person interested in the communication’s subject matter by another person also interested in the communication. The concept of interestedness is often a little fuzzy in application and it is not well pinned down in the case law. But it’s not much in dispute here because the case law is pretty clear that the members of a religious congregation share a common interest with its clergy and its broader church leadership.

“Malice” is tricky too. Some cases suggest that there are two kinds. For some annoying reason they are both called “actual malice.” There is literal malice, like hatred or ill will or an intent to do harm. And then there is New York Times type malice, as in a knowledge of falsity or recklessness about truth. There’s arguably circumstantial evidence of the former here―Defendant’s wife teaches at the school, and she seemingly is in a beef with the Principal. But the Court says that doesn’t matter, because there’s no evidence all that Defendant knew or didn’t care that his statements were false. Based on the cases cited in the opinion, ill will only matters when it impacts the defendant’s belief in truth or falsity, which wasn’t the case here. So the privilege should have applied, which merited granting the anti-SLAPP motion.

Reversed.

I’m not so sure the Court applied the right malice test here. In 2007, quoting an older case, the California Supreme Court said “[t]he 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 ground for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights.” Taus v. Loftus, 40 Cal. 4th 683, 721 (2007) (emphasis on or original). That appears to state the test in the disjunctive. There more generally seems to be some confusion on the entire issue, arising from a long historical interaction and partial merger between the statutory standard under § 47(c) and the constitutional standard applicable to defamation claims. The issue is explored in a very long footnote in McGrory v. Applied Signal Tech., Inc., 212 Cal. App. 4th 1510, 1539 n.18 (2013).