Carney R. Shegerian, Esq., State Bar No. 150461
CShegerian@Shegerianlaw.com
SHEGERIAN & ASSOCIATES, INC.
225 Santa Monica Boulevard, Suite 700
Santa Monica, California 90401
Telephone Number: (310) 860‑0770
Facsimile Number: (310) 860‑0771
Attorneys for Plaintiff,
FREDERICK THEODORE RALL, III
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT
FREDERICK THEODORE RALL, III,
Plaintiff,
vs.
TRIBUNE COMPANY, TRIBUNE PUBLISHING COMPANY, TRIBUNE MEDIA COMPANY, TRIBUNE INTERACTIVE, TRIBUNE MEDIA NET, INC., TRIBUNE PUBLISHING, LOS ANGELES TIMES COMMUNICATIONS, LLC, LOS ANGELES TIMES, AUSTIN BEUTNER, NICHOLAS GOLDBERG, PAUL PRINGLE, DEIRDRE EDGAR, AND DOES 1-100, INCLUSIVE,
Defendants.
Case No.:
PLAINTIFF FREDERICK THEODORE RALL, III’S COMPLAINT FOR DAMAGES FOR:
(1) DEFAMATION;
(2) DEFAMATION PER SE;
(3) BLACKLISTING;
(4) VIOLATION OF LABOR CODE § 1102.5;
(5) WRONGFUL TERMINATION OF EMPLOYMENT IN VIOLATION OF PUBLIC POLICY IN VIOLATION OF LABOR CODE § 1102.5;
(6) BREACH OF EXPRESS ORAL CONTRACT NOT TO TERMINATE EMPLOYMENT WITHOUT GOOD CAUSE;
(7) BREACH OF IMPLIED-IN-FACT CONTRACT NOT TO TERMINATE EMPLOYMENT WITHOUT GOOD CAUSE;
(8) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
DEMAND FOR JURY TRIAL
Plaintiff, Frederick Theodore Rall, III, alleges, on the basis of personal knowledge and/or information and belief:
SUMMARY
This is an action by plaintiff, Frederick Theodore Rall, III (“plaintiff” or “Rall”), whose employment with defendant Tribune Company, Tribune Publishing Company, Tribune Media Company, Tribune Interactive, Tribune Media Net, Inc., Tribune Publishing, Los Angeles Times Communications, LLC, Los Angeles Times, (“The Times”) and Defendants Austin Beutner (“Beutner”), Nicholas Goldberg (“Goldberg”), Paul Pringle (“Pringle”), Deirdre Edgar (“Edgar”) was wrongfully terminated. After said wrongful termination, Defendants recklessly and maliciously defamed Plaintiff. Plaintiff brings this action against defendants for economic, non-economic, compensatory and punitive damages, pursuant to Civil Code section 3294, pre-judgment interest pursuant to Code of Civil Procedure section 3291, costs, and reasonable attorneys’ fees pursuant to Government Code section 12965(b) and Code of Civil Procedure section 1021.5.
PARTIES
1. Plaintiff: Rall is, and at all times mentioned in this Complaint was, a resident of the County of Suffolk, New York.
2. Defendants: Defendant The Times are, and at all times mentioned in this Complaint were, authorized to operate by the State of California and the United States government and authorized and qualified to do business in the County of Los Angeles. Defendants’ place of business, where the following causes of action took place, was and is in the County of Los Angeles, at 201 West First Street, Los Angeles, CA 90012. Defendant Beutner is, and at all times mentioned in this Complaint was, a resident of Los Angeles, California and a supervisor with defendants. Defendant Goldberg is, and at all times mentioned in this Complaint was, a resident of Los Angeles, California and a supervisor with defendants. Defendant Pringle is, and at all times mentioned in this Complaint was, a resident of Los Angeles, California and a supervisor with defendants. Defendant Edgar is, and at all times mentioned in this Complaint was, a resident of Los Angeles, California.
3. Doe defendants: Defendants Does 1 through 100 are sued under fictitious names pursuant to Code of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges, that each of the defendants sued under fictitious names is in some manner responsible for the wrongs and damages alleged below, in so acting was functioning as the agent, servant, partner, and employee of the co-defendants, and in taking the actions mentioned below was acting within the course and scope of his or her authority as such agent, servant, partner, and employee, with the permission and consent of the co-defendants. The named defendants and Doe defendants are sometimes hereafter referred to, collectively and/or individually, as “defendants.”
4. Relationship of defendants: All defendants compelled, coerced, aided, and/or abetted the discrimination, retaliation, and harassment alleged in this Complaint, which conduct is prohibited under California Government Code section 12940(i). All defendants were responsible for the events and damages alleged herein, including on the following bases: (a) defendants committed the acts alleged; (b) at all relevant times, one or more of the defendants was the agent or employee, and/or acted under the control or supervision of, one or more of the remaining defendants and, in doing the acts alleged, acted within the course and scope of such agency and employment and/or is or are otherwise liable for plaintiff’s damages; (c) at all relevant times, there existed a unity of ownership and interest between two or more of the defendants such that any individuality and separateness between those defendants has ceased, and defendants are the alter egos of one another. Defendants exercised domination and control over one another to such an extent that any individuality or separateness of defendants does not, and at all times herein mentioned did not, exist. Adherence to the fiction of the separate existence of defendants would permit abuse of the corporate privilege and would sanction fraud and promote injustice. All actions of all defendants were taken by employees, supervisors, executives, officers, and directors during employment with all defendants, were taken on behalf of all defendants, and were engaged in, authorized, ratified, and approved of by all other defendants.
5. Defendant The Times both directly and indirectly employed plaintiff Rall, as defined under the Fair Employment and Housing Act (“FEHA”) at Government Code section 12926(d).
6. In addition, defendant The Times compelled, coerced, aided, and abetted the discrimination, which is prohibited under California Government Code section 12940(i).
7. Finally, at all relevant times mentioned herein, all defendants acted as agents of all other defendants in committing the acts alleged herein.
FACTS COMMON TO ALL CAUSES OF ACTION
8. Plaintiff’s hiring: The Times hired Rall as a freelance editorial cartoonist on or around October 21, 2009. In or around November 2013, the Times requested that Rall complete an online blog to accompany each published cartoon. The Times published approximately 300 of Rall’s cartoons and 60 blog posts between 2009 and 2015.
9. Plaintiff’s job performance: At all times, Rall completed his job duties in an exemplary manner.
10. Plaintiff’s employment status: Rall is a New York Times Best-selling author of 19 books, Pulitzer Prize finalist, winner of the James Aronson Award for Social Justice Graphics, and twice the winner of the Robert F. Kennedy Journalism Award for Outstanding Coverage of the Problems of the Disadvantaged. Rall is also one of the most widely syndicated cartoonists in the United States. Rall’s cartoons, distributed by Universal Press Syndicate and published by scores of publications including Time, Newsweek, Rolling Stone, MAD Magazine, Esquire, The Washington Post, USA Today, The Village Voice, Pasadena Weekly, and others, began running in The Times in 1992. Rall is a past President of the Association of American Editorial Cartoonists. Rall is also a nationally syndicated opinion columnist for Creators Syndicate, as well as a respected editor who worked as Editor of Acquisitions and Development at United Media/United Feature Syndicate. At no time during his employment was Rall disciplined or written-up. On the contrary, Rall was consistently praised for his work, which included filing cartoons from Afghanistan as an unembedded reporter. He was repeatedly asked by the Times to contribute additional work beyond the scope of his usual duties.
11. Defendants’ adverse employment actions and behavior:
a. Over the years, Rall has depicted numerous cartoons critical of police in general and the Los Angeles Police Department (“LAPD”) in particular.
a. Importantly, The Times’ standard procedure, and the standard procedure in American journalism, requires that audio presented to the newspaper as evidence or in support of a story be authenticated as genuine, and enhanced for clarity. According to audio experts, the original recording must be provided in order for a recording to be authenticated as genuine. Also, tape recorders and related components used to produce the recording must be provided to a qualified audio expert. Written records of any damage or maintenance done to the recorders, accessories, and other submitted equipment must be provided. In addition, there must be a detailed statement from the person or persons who made the recording describing exactly how it was produced and the conditions that existed at the time.
b. Furthermore, standard procedure at The Times and other news media outlets requires that material sourced by a person or entity with strong political interests be subjected to high scrutiny. The LAPD was the subject of many of Rall’s critical cartoons, evidencing that the LAPD is not an objective party.
c. On or around May 11, 2015, Rall created, and The Times published, a cartoon titled, “LAPD’s Crosswalk Crackdown; Don’t Police Have Something Better to Do?” In the accompanying blog post criticizing a May 2015 LAPD crackdown against jaywalking as reported by the Times, Rall referenced his own October 3, 2001 experience of being falsely arrested, unduly rough-housed and handcuffed by an LAPD officer allegedly for “jaywalking.” Rall wrote that the officer’s actions were so aggressive that they drew the attention of an angry crowd of passersby, and that after the incident in 2001 he filed a formal complaint against the officer with the LAPD, whose Internal Affairs Department did not contact him other than to notify him that his complaint had been dismissed. Rall’s cartoon and blog were reviewed, edited and approved for publication by his editors at The Times. A true and correct copy of the May 11, 2015 “LAPD’s Crosswalk Crackdown; Don’t Police Have Something Better to Do?” cartoon and accompanying blog is attached hereto as Exhibit 1.
d. On or around July 23, 2015, Times Reporter Paul Pringle called Rall to inform him that the LAPD was questioning the veracity of his May 11, 2015 cartoon and blog post. Pringle asked Rall numerous questions, focusing on whether Rall was, indeed rough-housed and handcuffed, and whether or not the angry bystanders were, indeed present. Rall cooperated fully and in detail and consented to having this conversation recorded. Rall repeatedly asserted the veracity of his remarks in detail; his stance has been unwavering. Pringle sent Rall, via Dropbox, a digital audio WAV file of the arrest which Pringle claimed the LAPD officer had secretly made of his 2001 arrest, and that the newspaper claimed to have obtained from the LAPD. Pringle asked Rall to respond to the allegation that the WAV file did not support his May 11, 2015 blog post. The WAV file was of extremely poor quality and mostly inaudible. Throughout their conversations Pringle aggressively questioned Rall’s account while asserting the LAPD’s narrative as indisputable, and the WAV file as proof that Rall was lying. At one point, for example, Pringle told Rall that he knew that the LAPD WAV audio was authentic and unedited because the LAPD assured him that it was. Pringle told Rall the audio did not support his account; Rall replied that its poor quality did not support the LAPD’s account, either. When Rall asked if Pringle was working on a story or investigating him, Pringle stated that he did not know.
e. Later the same day, on or about July 23, 2015, Editor of the Editorial Pages defendant Goldberg called Rall and asked him what was going on. Goldberg’s inquiry indicated that he was unaware that Rall’s May 11, 2015 blog post had been called into contention. Further, Goldberg’s ignorance of the situation also indicated that he had not assigned Pringle to contact and question Rall. Goldberg is the supervisor of the Times’ editorial and op-ed pages, which employed Rall.
f. The Times did not obtain the original analog micro-cassette of the 2001 recording made 14 years prior, nor the micro-cassette recording device with which it was made. The Times did not ask an independent audio expert to authenticate or enhance the recording, or make any effort whatsoever to investigate the LAPD’s claims before Rall’s termination.
g. There were egregious conflicts of interest between the LAPD, the Times and its Publisher. According to a story published by Pensions & Investments, the Los Angeles Police Protective League (“LAPPL”), the LAPD police union, owned a multi-million dollar investment in a private equity fund managed by Oaktree Capital Management that was the largest shareholder of Tribune Publishing, the parent company of the Times at the time of Rall’s firing. Three months after being named as Publisher and Chief Executive of the Times in 2014, Austin Beutner (“Beutner”) received the LAPPL Eagle and Badge Foundation’s In the Line of Duty award, which is given to an individual whom the LAPPL says “support[s] the LAPD in all that they do.” One day after Rall’s firing, the LAPPL published a press release titled “The LAPPL applauds L.A. Times firing of cartoonist Ted Rall.”
12. Defendants’ termination of plaintiff’s employment:
a. On or around Friday, July 24, 2015, Rall filed his weekly cartoon and blog, which was scheduled for publication on the following Monday. Notably, Goldberg emailed Rall later on Friday to tell him the Times would consider the matter over the weekend. On or around Monday, July 27, 2015, Deputy Op-Ed Editor, Susan Brenneman (“Brenneman”) told Rall that the Editorial Board did not meet to discuss his situation, contrary to past industry practice at The Times and other newspapers. The fact that the meeting did not take place was also contrary to what Goldberg had assured Rall in his Friday, July 24, 2015 email. Further, Rall’s cartoon and blog, filed on the previous Friday, were not published on Monday, indicating that the decision to terminate Rall had already been made on Friday. Later that day, Goldberg called Rall to inform him that the Times would publish an Editor’s Note regarding his post and that they would no longer be publishing his “stuff.” Rall reiterated that he had been truthful, told Goldberg he was making a bad call, and asked Goldberg whether anyone had ever questioned the veracity or validity of Rall’s work since he started at the Times in 2009. Goldberg answered, “no.”
13. Thus, the Times rushed its decision to terminate Rall in approximately 24 hours, without following due diligence for allegations of employee misconduct, or the correct handling of audio presented to the newspaper. More specifically, the Times failed to follow its own standard procedure by neglecting to analyze, authenticate or enhance the supposed copy of the purported LAPD audiotape prior to publically and injuriously terminating Rall. Rall is informed, believes, and thereon alleges that the Times received the WAV file from a source other than the LAPD, thus corrupting the chain of evidence, making its provenance, authenticity and edited status impossible to ascertain. The Times also failed to follow standard procedure by failing to allow Rall to meet with the editorial board, which would have been standard practice. At no point did the Times allow Rall to speak to Assistant Op-Ed Editor Cherry Gee, his regular supervisor, or to the editorial board to discuss his case, in direct contradiction of the Times’ policies and practices and evidencing malice.
14. Defendants’ Defamation of Plaintiff:
a. On or around July 28, 2015, editorial page editor Goldberg published a rare “A Note to Readers” (“Note”) indicating that the Times had doubts about the veracity of Rall’s May 11, 2015 blog post. The Note also stated that, in consequence, the Times would no longer be publishing Rall’s work. A true and correct copy of the July 28, 2015 editor’s note titled “A Note to Readers” is attached hereto as Exhibit 2.
b. The Note contained several false statements, published to a large audience as the truth of the matter asserted, including:
c. “Since then, the Los Angeles Police Department has provided records about the incident, including a complaint Rall filed at the time.” Rall has been informed, believes, and thereon alleges that Los Angeles Police Department did not provide the records.
d. “An audiotape of the encounter recorded by the police officer does not back up Rall’s assertions; it gives no indication that there was physical violence of any sort by the policeman or that Rall’s license was thrown into the sewer or that he was handcuffed. Nor is there any evidence on the recording of a crowd of shouting onlookers.” Rall has been informed, believes, and thereon allege that the Times does not actually have the audiotape, but rather a reported digital WAV copy of the original analog microcassette tape which has not been and cannot be authenticated, and is of extremely poor quality. Regardless of its quality, audio of this nature cannot evidence a driver’s license being thrown down. Additionally, this digital WAV audio copy does not support the LAPD’s version of events, nor does it disprove that there was a crowd of shouting onlookers. In fact, subsequent enhancement of the digital WAV audio copy confirms Rall’s version of the events, not the LAPD’s. Also subsequently, an audio provided by the LAPD on a CD-ROM to Rall pursuant to a public records request is not the same as the digital WAV sent by Pringle to Rall, is of higher quality, and further confirmed Rall’s version of events, by clarifying the presence of shouting onlookers.
e. “The tape depicts a polite interaction.” Pursuant to the Times’ own admission, the original recording was a microcassette. The audio provided to Rall by the LA Times purportedly provided by the LAPD, however, was a WAV file. An analog microcassette recorder cannot create a digital WAV file. Thus, the digital WAV file referenced in the Note cannot be the original audiotape. The poor quality of the tape elicits very little at all, much less supports the conclusion of “a polite interaction.”
f. “In addition, Rall wrote in his blog post that the LAPD dismissed his complaint without ever contacting him. Department records show that internal affairs investigators made repeated attempts to contact Rall, without success. Asked to explain these inconsistencies, Rall said he stands by his blog post.” There is no inconsistency between Rall stating that he was not contacted by the LAPD and departmental records showing that they attempted to do so.
g. “However, the recording and other evidence provided by the LAPD raise serious questions about the accuracy of Rall’s blog post.” This is false because the evidence was unreliable: the Times did not have the original recording or even an authenticated recording. Furthermore, it is false because the LAPD did not provide the WAV recording or the other evidence. Thus, Rall’s account cannot reasonably raise any serious questions at all.
h. “Based on this, the piece should not have been published. Rall’s future work will not appear in The Times.” The statement that Rall’s piece should not have been published in this context necessarily and falsely implies that Rall’s work is of low-quality and lacks integrity. Rall has won numerous journalism awards and has never been disciplined by any media outlet. There is no evidence that Rall lied in his May 11, 2015 account; this is because he told the truth.
i. “The Los Angeles Times is a trusted source of news because of the quality and integrity of the work its journalists do. This is a reminder of the need to remain vigilant about what we publish.” Again, this statement in the context of this Article, necessarily and falsely implies that Rall’s work is low-quality and lacks integrity.
15. On August 1, 2015, Rall provided the Times with new evidence concerning his account, namely an enhanced version of the recording provided by the Times. His recording, enhanced by a post-production company that works with the film industry, evidenced the existence of the angry passersby and that Rall was handcuffed. Rall asked the Times to reconsider its decision to terminate him given that the recording actually confirmed Rall’s version of events. Rall demanded his job back and a retraction of the Editor’s Note. Rall sent his request multiple times. There is no evidence that the Times reconsidered its decision based on the new evidence. In fact, the only communication Rall received was to direct communication to a Times attorney who did not reply to him about the substance of his request.
16. On August 14, 2015, in accordance with California Civil Code Section 48a, Rall formally served The Times with a demand for a retraction and to be reinstated to his position as editorial cartoonist in light of the new information. The Times did not respond.
17. The Association of American Editorial Cartoonists (“AAEC”), the nation’s professional organization for political cartoonists, issued a statement demanding an independent investigation. The Times did not respond to the AAEC. After extensive coverage in the media, including by KFI Radio, KPFK Radio, KABC Television, the New York Observer, International Business Times, the Poynter Institute for Media Studies, and the Guardian, the Times turned off the comments on the Editor’s Note and deleted comments that were critical of the Times for their decision to terminate Rall.
18. Shortly after the New York Observer and the Guardian articles about Rall’s firing were published, the LAPPL deleted its July 29, 2015 press release gloating over Rall’s firing from its website, leaving a “404 Not Found” error.
19. The Times’ malicious intent towards Rall was further evidenced three weeks later. After widespread coverage by social media and the journalism press, radio and television appeared in support of Rall, the Times finally responded to the outcry by “doubling down” its narrative that Rall had lied, despite the new evidence clearing him. The Times published an August 19, 2015, article titled, “Times reaffirms decision that Ted Rall’s blog post did not meet its standards” (“Article”). The Times still had not, and still has not, spoken directly to Rall. A true and correct copy of the August 19, 2015, article titled, “Times reaffirms decision that Ted Rall’s blog post did not meet its standards” is attached hereto as Exhibit 3.
20. The Article was rampant with falsities, exhibiting reckless disregard and malice in its publication, including:
a. “The Los Angeles Police Department challenged Rall’s account and provided documents and a tape recording of the 2001 encounter that indicate the officer did not use force against Rall and treated him politely.” Rall is informed, believes, and thereon alleges that the LAPD did not actually provide the Times with the records referred to in this sentence. Additionally, there is no “tape recording,” but instead only an unauthenticated digital WAV copy of the original analog microcassette.
b. “The Times interviewed Rall about the discrepancies between the police records and tape recording and his blog post.” There are no such discrepancies, and there is no original analog microcassette recording, but rather, an unauthenticated digital WAV copy.
c. “The
experts engaged by The Times, in separate assessments, said they could not hear any mention of handcuffs. Both also said they found no indication that — as Rall has asserted — the LAPD recording was edited, spliced or otherwise altered to conceal misconduct by the officer.” The Times’ audio experts were never provided with the original analog microcassette recording or the device with which it was made, making it impossible for said experts to authenticate the audio or to determine whether it had been spliced or otherwise altered. Rall is informed, believes, and thereon alleges, that the Times mischaracterized and cherry-picked selections from its experts’ reports in an intentionally prejudicial manner. Rall also is informed, believes, and thereon alleges that the Times failed to reveal that it refused to pay for a complete analysis of the audio dub. Rall also is informed, believes, and thereon alleges that the Times did not tell its audio experts the truth about how the Times obtained it.
d. “Rall has offered varying descriptions of the jaywalking stop since then.” Rall has not offered varying descriptions of the encounter. Instead, the same basic facts have been relayed in different accounts with varying levels of detail.
e. “After the OpinionLA post appeared May 11, the LAPD contacted The Times to challenge Rall’s account.” Rall is informed, believes, and thereon alleges that the LAPD did not contact the Times.
f. “The LAPD also provided a copy of an audio recording of the jaywalking stop made by Durr.” This directly contradicts their July 28, 2015, Editor’s Note by Goldberg, stating that the recording was an “audiotape.”
g. “A second recording furnished by the department was made by Sgt. Kilby when he called Rall’s phone number and left a voicemail.” There is no contradiction between Rall’s statements and department records.
h. “[Officer] Durr’s recording, made on a micro-cassette recorder and later transferred to a digital format, runs about six minutes and includes traffic sounds and other background noise.” This is in direct conflict with the Note, which presented that the Times had the original recording.
i. “There are extended silences during which Durr said he was checking Rall’s ID and filling out the citation.” This extended silence when heard with enhancing audio devices, provides further exculpatory evidence, including the voices of women telling the police officer to leave Rall alone.
j. “A conversation between Durr and Rall is audible, and it is civil.” The majority of the conversation is not audible, and therefore, impossible to ascertain whether it is civil or not.
k. “Neither man is heard to raise his voice at any point.” Rall never asserted that either man raised his voice. Rall never asserted that he complained about his treatment at the time. Instead, however, he claimed that he had been polite and compliant during the encounter.
l. “About halfway through the recording, faint voices can be heard in the background for about a minute and a half. The comments are unintelligible on the LAPD tape.” This statement contradicts the Note, in which the existence of those same voices are omitted. This statement also contradicts the statement in the Article that claims “a conversation between Durr and Rall is audible.” The Times claims it cannot hear things that support Rall’s account, while claiming it can hear things that do not. Again, Rall disputes that the recording was provided by the LAPD. It is not an LAPD microcassette tape, as stated above, it is a digital WAV format transferred from a micro-recorder. Lastly, the comments are audible and include a woman saying “take off his handcuffs.”
m. “Rall appears to ask the officer if there were any restaurants in the area.” Interestingly, at the time, Rall’s family and friends were already waiting for him to arrive at a restaurant that had already been selected. Thus, Rall did not need information about restaurants. Further, Rall asking the officer about whether there are any restaurants in the area is not contradictory to his account, nor does it indicate, as the Times implies, that Rall’s account is inaccurate.
n. The Article includes a link stating, “Here is the full LAPD transcript.” Rall is informed, believes, and thereon alleges that the transcript was not provided to The Times by the LAPD.
o. “Durr said he had not roughed up Rall or handcuffed him – in his entire career, he said, he had never handcuffed anyone for jaywalking.” In actuality, however, in a May 10, 2015, article in the Times titled, “LAPD trying to put the brakes on Illegal Street Racing” officer Durr is depicted mocking a suspect stopped for illegal street racing, a moving violation. Furthermore, he and his partner are depicted detaining their suspect in handcuffs.
p. “Pringle contacted Rall and sent him copies of the documents provided by the LAPD and a copy of Durr’s audio recording.” Rall is informed, believes, and thereon alleges that the documents are not from the LAPD. In addition, stating that it is a copy directly contradicts earlier statements in which they refer to the recording as “the audiotape.”
q. “He has taken aim at Durr’s recording, contending that the LAPD transcript is incomplete and that faintly audible background noises bolster his account.” In actuality, however, the audible voices of witnesses are not “faint” or merely “background noises,” as evidenced by the Times subscribers who commented that they could hear shouting onlookers in the enhanced audio. Further, there is no evidence that the transcript is actually provided by the LAPD.
r. “Rall maintains that on the enhanced version, two women can be heard midway through the recording complaining that Rall was handcuffed.” Rall states that at least two women can be heard on the enhanced version. Journalists at other media outlets say they can hear the women.
s. “Commander Andrew Smith, the LAPD spokesman, said the department’s audio specialists analyzed the tape to determine whether Durr might have turned the recorder off and then on again to avoid recording parts of the encounter. They found no indication that he had done so, Smith said. Smith said LAPD experts later enhanced the recording and could not hear anyone complain about handcuffs. They found no indication that the tape was spliced or otherwise altered, he said.” The LAPD is an interested party against Rall because of his cartoons, and therefore cannot be considered objective or impartial. As stated previously, this is not the original analog tape; it is a digital copy and cannot be authenticated with any accuracy. Additionally, Rall never claimed that Durr turned the recorder off and on. Rall is informed, believes, and thereon alleges that it is impossible to determine whether a digital copy of an original analog tape has been spliced, edited, or otherwise altered.
t. “The Times had the recording analyzed by two leading experts in audio and video forensics.” This is an action the Times recklessly and maliciously did not consider taking before terminating and defaming Rall in its print edition as well as online. Further evidencing malice, the Times pretended to go through the motions of an investigation weeks after Rall’s termination in a half-hearted attempt to quell a media firestorm. The Times made no effort to obtain the original recording for its enhancement, when this is available from the LAPD. The Times did not even request higher-quality digital audio such as the CD-ROM that Rall easily obtained from the LAPD via a public records request. Being unable to start from the original analog audiotape or higher quality digital audio significantly affected the experts’ findings.
u. “Primeau said that voices heard in the background on Rall’s enhanced version are mostly unintelligible, and that he did not detect any mention of handcuffs. He said Rall’s transcript was ‘not accurate.’” The Times does not say how Rall’s transcript is inaccurate. Neither the Times nor Primeau asked Rall for the file of Rall’s enhanced version, so Primeau could not have enhanced it. Rall is informed, believes, and thereon alleges that this is not an accurate depiction of Primeau’s findings.
v. “Grigoras said his analysis detected no reference to handcuffs. He said a man and a woman can be heard speaking in the background at one point, but only a few of their words are intelligible. Grigoras said the man and woman appear to be having a conversation unrelated to the jaywalking stop. ‘It is obvious the police officer is not part of that conversation,’ he said.” These statements are contradictory. First, Grigoras is quoted as stating that the only audible words are mostly unintelligible. In the next sentence, however, Grigoras states that, despite the unintelligible voices, “the conversation is unrelated to the jaywalking stop” and “it is obvious the police officer is not a part of that conversation.” Such a determination is not credible.
w. “His accounts of the jaywalking stop have changed over time in significant respects.” As addressed above, Rall did not offer varying descriptions of the jaywalking stop. Instead, the same facts have been relayed in different accounts with different levels of detail.
x. “In his letter of complaint to the LAPD, written within days of the incident, he did not say that Durr threw him against a wall. He did not say that the officer handcuffed him or roughed him up. He did not say that a crowd of protesters gathered or that a second officer interceded and ordered Durr to let him go.” The fact that Rall did not include certain details in his complaint to the LAPD does not evidence that they did not happen. At the time, Rall simply wanted to dispute the legitimacy of the jaywalking ticket to avoid a criminal record.
y. “No version of the recording, including Rall’s enhanced one, supports the cartoonist’s allegations that Durr was violent, hostile, rude and belligerent.” In fact, subsequent evidence (the enhancement and the CD-ROM sent to Rall by the LAPD) confirms Rall’s opinion that Durr was violent, hostile, rude, and belligerent.
z. On September 4, 2015, Rall sent a letter to The Times demanding that they point out falsehoods in the Article and requesting that it be retracted, and that he be returned to his position as editorial cartoonist. The Times did not respond.
21. The Times’ malice is further evidenced by the fact that none of Rall’s editors, who reviewed and approved the publication of his work, were disciplined. At the Times and other newspapers, editors found to have approved the work of a journalist determined to have lied or made up a story also face punishment.
22. Rall is one of the only terminated employees, if not the only, where the Times has published a statement about that employee’s termination in the newspaper or on the Internet, evidencing malicious intent. He is one of the only terminated employees, if not the only, where the Times refused to acknowledge or investigate new evidence clearing his name, and then published a second statement, which again vilifies its former employee, reaffirming its decision without taking the new evidence into serious consideration.
23. As a result of these baseless and malicious false publications, various media outlets labeled Rall as a liar and/or falsely accused him of being fired for being a “liar.” His journalistic peers shunned him because he had allegedly violated journalism’s cardinal principle: to tell the truth. Stories characterizing Rall as a liar, including the Times’ publications, remain online and available for public viewing. Rall has requested that both Times publications be retracted and removed. The Times has continually ignored Rall.
24. Economic damages: As a consequence of defendants’ conduct, plaintiff has suffered and will suffer harm, including lost past and future income and employment benefits, damage to his career, and lost wages, overtime, unpaid expenses, and penalties, as well as interest on unpaid wages at the legal rate from and after each payday on which those wages should have been paid, in a sum to be proven at trial.
25. Non-economic damages: As a consequence of defendants’ conduct, plaintiff has suffered and will suffer psychological and emotional distress, humiliation, and mental and physical pain and anguish, in a sum to be proven at trial.
26. Punitive damages: Defendants’ conduct constitutes oppression, fraud, and/or malice under California Civil Code section 3294, so as to entitle plaintiff to an award of exemplary/punitive damages.
a. Malice: Defendants’ conduct was committed with malice within the meaning of California Civil Code section 3294, including that (a) defendants acted with intent to cause injury to plaintiff and/or acted with reckless disregard for plaintiff’s injury, including by terminating plaintiff’s employment and/or taking other adverse job action against plaintiff because of plaintiff’s age, disability, medical leave, race, national origin, ancestry, pregnancy, gender, and/or good faith complaints, and/or (b) defendants’ conduct was despicable and committed in willful and conscious disregard of plaintiff’s rights, health, and safety, including plaintiff’s right to be free of discrimination, harassment, retaliation, abuse of the requirements of accommodation and engaging in the interactive process, and wrongful employment termination.
b. Oppression: In addition, and/or alternatively, defendants’ conduct was committed with oppression within the meaning of California Civil Code section 3294, including that defendants’ actions against plaintiff because of plaintiff’s age, disability, medical leave, race, national origin, ancestry, pregnancy, gender, and/or good faith complaints was “despicable” and subjected plaintiff to cruel and unjust hardship, in knowing disregard of plaintiff’s rights to a work place free of discrimination, harassment, retaliation, abuse of the requirements of accommodation and engaging in the interactive process, and wrongful employment termination.
c. Fraud: In addition, and/or alternatively, defendants’ conduct, as alleged, was fraudulent within the meaning of California Civil Code section 3294, including that defendants asserted false (pretextual) grounds for terminating plaintiff’s employment and/or other adverse job actions, thereby to cause plaintiff hardship and deprive plaintiff of legal rights.
27. Attorneys’ fees: Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees.
FIRST CAUSE OF ACTION
(Defamation (Civil Code §§ 45, 46)
Against All Defendants and Does 1 to 100, Inclusive)
28. The allegations set forth in paragraphs 1 through 27 are re-alleged and incorporated herein by reference.
29. On July 28, 2015 and August 18, 2015, the Times published two highly defamatory articles about Rall. The articles contained false and malicious statements regarding Rall’s integrity as a journalist. Such representation of Rall constitutes defamation per se, imputing to Rall loathsome actions and creating a loathsome reputation in his profession and among the public.
30. As a result, Plaintiff has been injured in his profession and continues to be injured in his profession. Plaintiff has sustained and continues to sustain losses of earnings and other employment benefits.
31. As a proximate result of Defendant’s willful, knowing, and intentional false representations about Plaintiff, Plaintiff has suffered and continues to suffer humiliation and mental pain and anguish and other non-economic damages, all to his damage in a sum according to proof.
32. Defendant’s misconduct was done intentionally, in a malicious, fraudulent, despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant, and each of them.
SECOND CAUSE OF ACTION
(Defamation Per Se (Civil Code §§ 45, 46, 48)
Against All Defendants and Does 1 to 100, Inclusive)
33. The allegations set forth in paragraphs 1 through 32 are re-alleged and incorporated herein by reference.
34. On July 28, 2015 and August 18, 2015, the Times published two highly defamatory articles about Rall and his truthful account of an encounter with the LAPD.
35. Any reasonable person would understand that the defamatory statements in this Complaint were about Rall.
36. The articles contained false and malicious statements regarding Rall’s integrity as a journalist. Such representation of Rall constitutes defamation per se, imputing to Rall loathsome actions and creating a loathsome reputation in his profession and among the public.
37. None of the above defamatory material detailed in this Complaint requires any explanation to a reasonable reader and constitutes defamation per se and libel per se.
38. Defendants knew the defamatory statements and inferences they made about Rall were false and/or recklessly disregarded the truth of the defamatory statements, yet went forward with their false publication of the Note and, especially, the Article, even after receiving exonerating evidence from Rall supporting his account of the encounter and discrediting the LAPD’s account.
39. Although defendants were fully aware of the defamation against Rall prior to publishing the Note and the Article, they became more aware after Rall sent retraction demands to all defendants after each defamatory publication. Nonetheless, the Times refused to retract their publications and both the Note and the Article are currently accessible for viewing on the Times’ website.
40. As a result, Plaintiff has been injured in his profession and continues to be injured in his profession. Plaintiff has sustained and continues to sustain losses of earnings and other employment benefits.
41. As a proximate result of Defendant’s willful, knowing, and intentional false representations about Plaintiff, Plaintiff has suffered and continues to suffer humiliation and mental pain and anguish and other non-economic damages, all to his damage in a sum according to proof.
42. Defendant’s misconduct was done intentionally, in a malicious, fraudulent, despicable, oppressive manner, entitling Plaintiff to punitive damages against Defendant, and each of them.
THIRD CAUSE OF ACTION
(“Blacklisting” in Violation of Labor Code § 1050, et seq.—Against The Times, and Does 1 to 100, Inclusive)
43. The allegations set forth in paragraphs 1 through 42 are re-alleged and incorporated herein by reference.
44. Under California Labor Code section 1050, et seq., an employee is permitted to pursue a civil claim against his or her former employer for misrepresentations made after he or she has left employment that preclude him or her from finding future employment.
45. Defendants actively sought to prevent plaintiff from finding future employment in the journalistic community based on his reputation for honesty and integrity by falsely representing to the general public, including readers of the Times, that the newspaper has “serious doubts” regarding the veracity of Rall’s account and therefore, “Rall’s future work will not appear in the Times.”
46. As a legal and proximate result of defendants’ actions, plaintiff has suffered special and general damages in an amount to be proven.
47. Defendants’ conduct was extremely reckless and capricious and subjected plaintiff to cruel and unjust hardships. Defendants’ recklessness was despicable, and their reckless actions were taken in conscious disregard of plaintiff’s rights. Defendants knew that their conduct was illegal, unconscionable, and malicious and that it would cause damage to plaintiff. Furthermore, defendants’ conduct was intentional, oppressive, fraudulent, malicious, and performed in a wanton effort to deprive plaintiff of her fundamental rights in violation of Civil Code section 3294(c)(1) and (2). Therefore, plaintiff is entitled to punitive damages in an amount to be proven at the time of trial.
FOURTH CAUSE OF ACTION
(Violations of Labor Code § 1102.5, et seq.—Against Defendants The Times, and Does 1 to 100, Inclusive)
48. The allegations set forth in paragraphs 1 through 47 are re-alleged and incorporated herein by reference.
49. At all relevant times, Labor Code section 1102.5 was in effect and was binding on defendants. This statute prohibits defendants from retaliating against any employee, including plaintiff, for raising complaints of illegality.
50. Plaintiff raised complaints of illegality while he worked for defendants, and defendants retaliated against him by discriminating against him, harassing him, and taking adverse employment actions, including employment termination, against him.
51. As a proximate result of defendants’ willful, knowing, and intentional violations of Labor Code section 1102.5, plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to his damage in a sum according to proof.
52. As a result of defendants’ adverse employment actions against plaintiff, plaintiff has suffered general and special damages in sums according to proof.
53. Defendants’ misconduct was committed intentionally, in a malicious, oppressive manner, entitling plaintiff to punitive damages against defendants.
FIFTH CAUSE OF ACTION
(Breach of Express Oral Contract Not to Terminate Employment without Good Cause)—Against Defendants The Times, and Does 1 to 100, Inclusive)
54. The allegations set forth in paragraphs 1 through 53 are re-alleged and incorporated herein by reference.
55. Defendants, through their agents, entered an oral agreement not to terminate plaintiff’s employment except for good cause. Plaintiff and defendants, through their supervisors, made mutual promises of consideration pursuant to this oral agreement. Plaintiff performed all duties required of him under the agreement by performing his job in an exemplary manner.
56. Defendants and their managers and supervisors terminated plaintiff’s employment without good cause, violating the express oral contract they had with him.
57. As a proximate result of defendants’ willful breach of the express oral contract not to terminate employment without good cause, plaintiff has suffered and continues to suffer damages, including losses of earnings and benefits, in a sum according to proof.
SIXTH CAUSE OF ACTION
(Breach of Implied-in-Fact Contract Not to Terminate Employment without Good Cause (Marketing West, Inc. v. Sanyo Fisher (1992) 6 Cal.App.4th 603; Civil Code § 1622)—Against Defendants The Times, and Does 1 to 100, Inclusive)
58. The allegations set forth in paragraphs 1 through 57 are re-alleged and incorporated herein by reference.
59. On the basis of oral assurances of continued employed given to plaintiff by defendants’ supervisors, the length of plaintiff’s employment with defendants, defendants’ actual practice of terminating employment only for cause, and the industry standard for the business defendants engaged in of terminating employment only for cause, plaintiff and defendants shared the actual understanding that plaintiff’s employment could and would be terminated only for cause. This shared understanding resulted in an implied contract requiring that defendants have good cause to terminate plaintiff’s employment.
60. Defendants, through their agents, entered an express oral agreement not to terminate plaintiff’s employment except for good cause. Defendants represented to plaintiff that his employment would not be terminated unless his job performance were unsatisfactory. Plaintiff decided to work for defendants on the basis of these promises and agreed to work for defendants on the basis of these promises. Plaintiff performed all of the duties required of him under this agreement during his employment.
61. Defendants and their managers and supervisors terminated plaintiff’s employment without good cause, violating the implied-in-fact and/or express contract they had with him.
62. As a proximate result of defendants’ willful breach of the implied-in-fact contract not to terminate employment without good cause, plaintiff has suffered and continues to suffer damages, including losses of earnings and benefits, in a sum according to proof.
63. Plaintiff seeks attorneys’ fees for lost wages under this cause of action under Labor Code section 218.6.
SEVENTH CAUSE OF ACTION
(Wrongful Termination of Employment in Violation of Public Policy in Violation of Labor Code § 1102.5, Government Code § 12900, et seq.—Against Defendants The Times, and Does 1 to 100, Inclusive)
64. The allegations set forth in paragraphs 1 through 63 are re-alleged and incorporated herein by reference.
65. Defendants terminated plaintiff’s employment in violation of various fundamental public policies underlying both state and federal laws. Specifically, plaintiff’s employment was terminated in part because of plaintiff’s protected status (age, disability, CFRA leave, race, national origin, ancestry, pregnancy, and/or gender) and because plaintiff engaged in protected activities. These actions were in violation of FEHA and the California Constitution and California Labor Code section 1102.5.
66. As a proximate result of defendants’ wrongful termination of plaintiff’s employment in violation of fundamental public policies, plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to his damage in a sum according to proof.
67. As a result of defendants’ wrongful termination of plaintiff’s employment, plaintiff has suffered general and special damages in sums according to proof.
68. Defendants’ wrongful termination of plaintiff’s employment was done intentionally, in a malicious, oppressive manner, entitling plaintiff to punitive damages.
69. Plaintiff has incurred and continues to incur legal expenses and attorneys’ fees. Pursuant to Code of Civil Procedure sections 1021.5 and 1032, et seq., plaintiff is entitled to recover reasonable attorneys’ fees and costs in an amount according to proof.
EIGHTH CAUSE OF ACTION
(Intentional Infliction of Emotional Distress—Against All Defendants and Does 1 to 100, Inclusive)
70. The allegations set forth in paragraphs 1 through 69 are re-alleged and incorporated herein by reference.
71. Defendants’ discriminatory, harassing, and retaliatory actions against plaintiff constituted severe and outrageous misconduct and caused plaintiff extreme emotional distress.
72. Defendants were aware that treating plaintiff in the manner alleged above, including impugning his reputation and depriving plaintiff of his livelihood while he was suffering from an actual, perceived, and/or history of disability, would devastate plaintiff and cause plaintiff extreme hardship.
73. As a proximate result of defendants’ extreme and outrageous conduct, plaintiff has suffered and continues to suffer severe emotional distress. Plaintiff has sustained and continues to sustain substantial losses of earnings and other employment benefits as a result of being emotionally distressed.
74. As a proximate result of defendants’ extreme and outrageous conduct, plaintiff has suffered and continues to suffer humiliation, emotional distress, and mental and physical pain and anguish, all to his damage in a sum according to proof.
75. Defendants’ misconduct was committed intentionally, in a malicious, oppressive manner, entitling plaintiff to punitive damages.
PRAYER
WHEREFORE, plaintiff, Frederick Theodore Rall, III, prays for judgment against defendants as follows:
1. For general and special damages according to proof;
2. For exemplary damages, according to proof;
3. For pre-judgment and post-judgment interest on all damages awarded;
4. For reasonable attorneys’ fees;
5. For costs of suit incurred;
6. For such other and further relief as the Court may deem just and proper.
ADDITIONALLY, plaintiff, Frederick Theodore Rall, III, demands trial of this matter by jury. The amount demanded exceeds $25,000.00 (Government Code § 72055).
Dated: March 23, 2016 SHEGERIAN & ASSOCIATES, INC.
By:
Carney R. Shegerian, Esq.
Attorneys for Plaintiff,
FREDERICK THEODORE RALL, III