A California appeals court has expanded the First Amendment protections to a private consultant, over defamation claims against him in a report for a garbage hauling company that allegedly defamed a competitor.
The First District Court of Appeal threw out a lawsuit by Industrial Waste and Debris, Inc. against consultant Bruce Murphy on Oct. 28. The court sided with Murphy in holding that the lawsuit was an attempt to silence him on an issue of public interest.
Murphy was commissioned by North Bay Corp., one of Industrial’s competitors, to analyze how much waste material from Industrial’s construction and demolition service was diverted to landfill or recycled.
Under California law, cities are required to enact waste management plans, with the goal of diverting at least half of their trash from landfills through recycling, composting or other diversion. Waste haulers are required to file reports on the percentages of diversion with the state.
Murphy’s report on trash hauling in Sonoma and Marin Counties questioned the accuracy of 2009 and 2010 reports by Industrial, also known as Industrial Carting.
Industrial sued Murphy, claiming he had provided false diversion percentages about Industrial in a public report, costing Industrial business. Industrial claimed defamation, trade libel and interference with a contract among other allegations.
Murphy’s report stated: 1) “For 2009 and 2010, Industrial Carting reported C&D diversion of 87% for Windsor and 100% diversion with no disposal for the cities of Santa Rosa, Rohnert Park, and Petaluma”; and 2) “Based on public documents, we concluded that the diversion rate of C&D only materials at the Industrial Carting MRF amounted to 14.90% in 2009 and 16.66% in 2010.”
Anti-SLAPP
Murphy filed a motion to throw out the lawsuit, under a law intended to block suits aimed at harassing or intimidating people from exercising free speech rights on issues of public interest. Such lawsuits are known as Strategic Lawsuits Against Public Participation, or SLAPP suits. The motion allows such suits to be rapidly dismissed once they are found to be against public interest in what’s known as an “anti-SLAPP motion.”
The trial court found that the content of Murphy’s report was free speech protected under the First Amendment, but denied Murphy’s anti-SLAPP motion as to all but one claim, ruling that Industrial had shown a “probability of success” if the lawsuit went forward. Murphy appealed.
Justice Therese Stewart agreed partially with the trial court that the statements in Murphy’s report were inherently protected free speech, since limited landfill capacity and the environmental effects of landfill waste disposal are issues of “significant interest” to both Northern California municipal and California governments.
But Stewart disagreed with the lower court that Industrial’s allegations of false claims in Murphy’s report would likely survive.
“The plaintiff’s reported diversion rates of 100 percent for three municipalities and 87 percent for a fourth are not credible,” Stewart said.
She said Industrial failed to show that in fact recycled or diverted the 100 percent it claimed in public documents.
By failing to provide any evidence that its 100 percent claim for waste diversion was ture, Industrial failed to show it can likely meet its burden of proof, and thus can’t make a case for the falsity of Murphy’s report, she said.
Based on that finding, Steward did not reach the additional claim that Murphy was protected from the defamation claim as a “limited public figure.”
Justice Stewart was joined by Presiding Justice J. Anthony Kline and Justice Marla Miller.
Case: Industrial Waste and Debris Box Service, Inc. v. Murphy, No. A142388
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