https://casetext.com/case/collins-v-salinan-heritage-pres-assnCollins v. Salinan Heritage Pres. Ass'n
Opinion
2d Civil No. B267301
08-03-2017
FRED HARVEY COLLINS, Plaintiff and Appellant, v. SALINAN HERITAGE PRESERVATION ASSOCIATION et al., Defendants and Respondents.
Pierce & Shearer LLP, Andrew F. Pierce for Plaintiff and Appellant. Daniel Crowley & Associates, Daniel F. Crowley, Scott Brust for Defendants and Respondents Salinan Heritage Preservation Association and John Burch; Mark A. Levitan for Defendant and Respondent Salinan Heritage Preservation Association; Benton, Orr, Duval & Buckingham, Kevin M. McCormick, Panda Kroll for Defendant and Respondent Daniel Krieger; Henderson Borgeson, Jay M. Borgeson, Brooke E. Storm for Defendant and Respondent Gary Pierce; Stub, Boeddinghaus & Velasco, Russell Boeddinghaus for Defendant and Respondent Patti Dunton.
GILBERT, P. J.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15CV-0154)
(San Luis Obispo County)
Fred Harvey Collins appeals a judgment entered after the trial court granted a special motion to strike pursuant to the anti-SLAPP statute, and dismissed his lawsuit. (Code Civ. Proc., § 425.16.) We affirm.
All statutory references are to the Code of Civil Procedure unless stated otherwise.
FACTUAL AND PROCEDURAL HISTORY
On March 24, 2015, Collins filed a verified complaint against the Salinan Heritage Preservation Association, three members and officers of the Salinan Indian Tribe, and an individual who is a professor of history at a local university.
The complaint alleges causes of action for defamation based upon defendants' statements that Collins is not an Indian of California Chumash descent. The first statement was made to counsel for the Native American Heritage Commission (NAHC), a California public entity charged by law with identifying and cataloguing places of religious or social significance to Native Americans, including known graves and cemeteries (Pub. Res. Code, § 5097.94, subd. (a)); the second statement was made to a local newspaper reporter who sought information regarding Collins's legal conflicts with the Salinan tribe; and the third statement was a written statement to the Sierra Club with copies to local political representatives and others, regarding Collins's endeavors to establish a Chumash maritime sanctuary.
In response to the lawsuit, defendants filed a special motion to strike pursuant to the anti-SLAPP statute, asserting that Collins's claims arose from defendants' constitutionally protected free speech. Collins resisted the motion and the parties presented declarations, documentary evidence, and written and oral argument concerning application of the anti-SLAPP law to Collins's defamation claims.
Collins alleges that he is a Native American of Chumash descent and a spokesman, advocate, and Tribal Administrator for the Northern Chumash Tribal Council. The Salinan Heritage Preservation Association is a non-profit corporation through which the Salinan Tribe of Monterey and San Luis Obispo Counties (collectively Salinan) operates. Salinan has approximately 700 members and an elected tribal council. Defendants Gary Pierce, John Burch, and Patti Dunton are members and officers of the Salinan Tribe and have responsibilities regarding tribal business, financial, spiritual, and ceremonial affairs, among other things. Dunton also works in the Salinan tribal office as the office administrator, responding to telephone calls and email communications. Defendant Professor Daniel Krieger is the tribal historian but is not a member of the Salinan Tribe.
NAHC Proceedings Concerning Morro Rock
For some time, Collins and Salinan have disputed boundaries between the ancestral territories of the Northern Chumash tribe and the Salinan tribe. Specifically, Collins has objected to Salinan tribal members ascending Morro Rock, an important ritual in the tribe's winter and summer solstice ceremonies. In 2006, and again in 2011, the NAHC entered into an agreement with the Salinan Tribe to permit ceremonial ascents of Morro Rock. In 2014, Collins, through his attorney, communicated frequently with NAHC, disputed Salinan's cultural affiliation with Morro Rock, and requested that NAHC recognize his Chumash status.
On January 8, 2015, the NAHC directed Collins and Salinan to present evidence supporting their positions regarding their ancestral territorial boundaries. NAHC also advised the parties that it had retained an anthropologist to determine whether "Morro Rock is exclusively within the cultural territory of the Chumash People or the Salinan Tribe, or whether it is shared territory." NAHC also advised that the anthropologist's findings and conclusions would be subject to a public hearing with notice to interested parties and an opportunity to be heard.
Collins's Writ Proceeding Against NAHC
On December 5, 2014, Collins filed a petition for writ of mandate against NAHC, seeking production of records pursuant to the Public Records Act. (Northern Chumash Tribal Council v. Native American Heritage Com. (Super. Ct. San Luis Obispo County, 2014, No. 14CV-0610).) The requested information involved documents relating to Collins's Native American ancestry or asserted lack thereof, and his disputes with the Salinan Tribe.
After Collins filed his writ petition, a local newspaper reporter telephoned the Salinan tribal office. Dunton stated in a declaration that she answered the telephone call and informed the reporter that she was unaware of the recently filed writ petition. She stated, however, that she knew the parties were disputing access to Morro Rock and had a history of conflict: "We . . . had a brief conversation concerning the dispute over the Tribe's access to Morro Rock." She also said she was aware of the
genealogy report that questioned Collins's Indian ancestry.Chumash Heritage National Marine Sanctuary
In 2014, Collins nominated a local marine environment to be designated as the "Chumash Heritage National Marine Sanctuary." In connection with this nomination to the National Oceanic and Atmospheric Agency (NOAA), Collins solicited support from the Sierra Club, the California Coastal Commission, and local political representatives, among others. Collins's nomination alarmed Salinan officers and members who believed the proposed sanctuary included a significant portion of Salinan ancestral territory. On February 27, 2015,
Pierce, Burch, and Krieger sent a letter to the Sierra Club, the Coastal Commission, and local political representatives objecting to the boundary lines proposed by Collins and questioning his standing to represent the Chumash Indian Tribe because "he is not even of California Indian descent." Salinan referred to the conclusions of a certified genealogist whom it retained to research Collins's ancestry. On March 6, 2015, NOAA wrote Collins and rejected his proposed sanctuary, but suggested that he resubmit his nomination with additional information.
In
2013, the Salinan Tribe had retained a certified genealogist, Lorraine Escobar, to research Collins's ancestry. Escobar prepared a written report that concluded that Collins was not of Native American ancestry and that his maternal lineage was from Mexico. On May 15, 2013, the Salinan Tribe submitted the genealogist's report to the NAHC.
Collins's Most Likely Descended (MLD) Status
Public Resource Code section 5097.94, subdivision (a) requires the NAHC to identify persons "most likely descended" from Native Americans interred on California land. At times, the NAHC has designated Collins as MLD, appointing him to perform monitoring activities on excavation sites for which he is compensated. Members of the Salinan Tribe have also been designated as MLD and compensated. Over the years, Salinan members have questioned Collins's MLD status regarding areas within claimed Salinan ancestral territory.
Collins's Declaration of Chumash Ancestry
In response to the motion to strike,
Collins declared that his mother's cousin, Chumash Elder Mary Trejo, revealed his Chumash ancestry to him many years ago. Trejo did not provide a declaration and Collins did not state that she was unavailable.
Salinan objected to this statement as hearsay and the trial court sustained the objection.
Following its consideration of the evidence, exhibits, and arguments by the parties, the trial court concluded that the anti-SLAPP law of section 425.16 applied because issues regarding the proposed marine sanctuary, access to Morro Rock, and Collins's status as a Chumash advocate and spokesman were of public interest. It then granted defendants' special motion to strike. In ruling, the trial judge stated that Civil Code section 47, subdivision (b) also applied: "[T]he litigation privilege applies as regards the second prong of the SLAPP analysis."
Collins appeals and contends that the trial court erred by deciding that the litigation privilege applied to the three asserted defamations, thereby precluding him from establishing a probability of prevailing to defeat defendants' anti-SLAPP motion. (§ 425.16, subd. (b).)
DISCUSSION
Collins argues that the defamatory statements were not privileged because they were not made in the context of any official proceeding. He also contends that the trial court abused its discretion by sustaining defendants' hearsay objection to Trejo's statements and by denying his motion for discovery.
[Extended cities of legal arguments on defamation and SLAPP suits.]
The three asserted defamatory statements concern public disputes that satisfy the anti-SLAPP statute as well as the broad litigation privilege of Civil Code section 47, subdivision (b). Salinan members' statements to NAHC involved the disputes between Collins and Salinan involving the Morro Rock assent and Collins's MLD status. In 2006, and again in 2011, NAHC agreed that Salinan members could ascend Morro Rock. Salinan's statements to the Sierra Club, the Coastal Commission, and local political representatives involved Collins's marine sanctuary application then pending before NOAA. Collins had solicited the support of those entities and individuals who were already involved as interested parties. Finally, Dunton's conversation with a newspaper reporter involved Collins's pending writ proceeding that described the various disputes he had with Salinan regarding his Chumash ancestry and Morro Rock. Dunton, a Salinan Tribe member and the office administrator, was aware of Collins's longstanding claims and disputes with Salinan and her statements to the reporter were a republication of many of Collins's claims.
Collins's remaining claims have no merit. Trejo's statements are hearsay and Collins did not establish their admissibility pursuant to Evidence Code sections 1310 and 1311 because he did not establish Trejo's unavailability. We review the trial court's ruling on an evidentiary objection in connection with a special motion to strike for an abuse of discretion. (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. 3.) In any event, Trejo's statements have no bearing on application of the litigation privilege and we need not decide the nature of Collins's ancestry.
[More legal arguments.]
The judgment is affirmed. Respondents shall recover costs.
NOT TO BE PUBLISHED.
GILBERT, P. J. We concur:
YEGAN, J.
PERREN, J.
Martin J. Tangeman, Judge
Superior Court County of San Luis Obispo
Pierce & Shearer LLP, Andrew F. Pierce for Plaintiff and Appellant.
Daniel Crowley & Associates, Daniel F. Crowley, Scott Brust for Defendants and Respondents Salinan Heritage Preservation Association and John Burch; Mark A. Levitan for Defendant and Respondent Salinan Heritage Preservation Association; Benton, Orr, Duval & Buckingham, Kevin M. McCormick, Panda Kroll for Defendant and Respondent Daniel Krieger; Henderson Borgeson, Jay M. Borgeson, Brooke E. Storm for Defendant and Respondent Gary Pierce; Stub, Boeddinghaus & Velasco, Ru
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