Ruling may doom Dee Torres' slander suit against ex-Atascadero mayor

Judge says homeless services director is a public official; therefore she must prove 'actual malice' by the defendant

ppemberton@thetribunenews.comAugust 22, 2013 

Dee Torres is a public figure, a judge said Thursday in a ruling that could doom Torres' defamation lawsuit against a private investigator who accused her of stealing from the homeless.

Torres, the homeless services coordinator for Community Action Partnership of San Luis Obispo County (CAPSLO), is suing Michael Brennler, a former mayor of Atascadero, who had volunteered to investigate claims of theft at CAPSLO for the news site CalCoastNews. During a March call to Torres' ex-husband, Charles Barber, Brennler allegedly told Barber that Torres had stolen from clients at a homeless shelter.

CalCoastNews has published several stories focusing on Torres for alleged mismanagement of donations and funds of the homeless services programs she oversees.

During a hearing in San Luis Obispo Superior Court on Thursday, Torres' attorney Roy Ogden said Brennler helped CalCoastNews conduct a smear campaign against his client.

"It's yellow journalism," he said. 

After the hearing, Karen Velie, a reporter with CalCoastNews, said the allegations of a smear campaign are untrue.

“That’s a way of not answering the questions or dealing with the issues,” she said. 

Torres filed the lawsuit not long after hearing of the phone call. In April, Ogden told The Tribune the suit was filed to get whatever potential justice is available and “to stop him from telling lies.”

Defamation suits normally require the plaintiff to prove statements made were both false and damaging. But plaintiffs considered public figures must also prove that the defendant acted with “actual malice,” which means the person who made the statements knew they weren’t true or made them with a reckless disregard for the truth. A reckless disregard for the truth, the Supreme Court has ruled, entails a “high degree of awareness of probable falsity” or “serious doubts as to the truth” of the statements.

In response to the Torres lawsuit, Stewart Jenkins, an attorney representing Brennler, filed an anti-SLAPP (strategic lawsuit against public participation) motion. Anti-SLAPP motions are employed to dismiss lawsuits that are deemed to discourage criticism.

While Torres is not a celebrity or an elected official, Jenkins argued in court, she has acted as a media spokesperson for CAPSLO, which uses public funds. Meanwhile, her position required a public application, which had to be approved by the county Board of Supervisors.

“There are numerous situations where somebody becomes a public figure in a limited basis,” Jenkins said.

Ogden argued that Torres was only a public figure because CalCoastNews made her one, and that she didn’t intentionally thrust herself into a public controversy with the intention of affecting the outcome of the controversy, one of the requirements for being considered a public figure.

“There’s nothing to show that Mrs. Torres was involved personally in a public debate,” Ogden said. “CalCoastNews published a lot of nasty things about my client, your honor, and she never responded to any of those.”

But Superior Court Judge Barry LaBarbera disagreed.

“I think she’s a public figure,” he said.

In a written tentative ruling issued the day before the hearing, LaBarbera wrote that CAPSLO’s work can be viewed as an issue of public interest.

“Addressing the homeless in San Luis Obispo can be classified as a public controversy which is debated publicly,” he wrote. “Because plaintiff is a public figure, she has the burden of proving that the alleged defamatory statement is false and that the defendant acted with ‘actual malice.’ ”

Brennler’s statement, he added, can be viewed as protected speech because it was connected to the public interest via stories by CalCoastNews.

In his tentative ruling, LaBarbera also wrote that Torres has failed to prove Brennler acted with actual malice.

Ogden will be allowed to further argue his client’s case for actual malice during a Sept. 3 hearing. If he can’t show a probability that Torres will prevail, the case will be dropped.

Velie, who said attorneys and private investigators frequently offer to help investigate CalCoastNews stories, thinks the case should be dismissed.  

“The right of the media to do investigations is important,” she said.

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