Petition for Writ of Certiorari — Robert Michael Kuczewski, Petitioner v. Robin Marien, et al.

24 = 6429

ORIGINAL

No.

FILED

OCT 2 2 2024

In the

LSUPREEMFFrS<UR^^K

Supreme Court of the United States

Robert Kuczewski,

Petitioner,

v.

Robin Marien, Gabriel Jebb,

Air California Adventure Inc.,

Respondents.

On Petition for Writ of Certiorari

to the Supreme Court of California and

Court of Appeal 4th Appellate District

Division One, State of California

PETITION FOR WRIT OF CERTIORARI

Robert Michael Kuczewski

302 Washington St. Suite 313

San Diego, California, 92103-2110

858-204-7499

bob@ushawks.org

BobKuczewski@gmail.com

October 22, 2024

Self-Represen ted

V

i

QUESTIONS PRESENTED

1. What is the standard for classification of

public figures and limited purpose public figures?

2. Can government officials suppress and shield

themselves from public criticism by delegating

governmental responsibilities to private businesses?

3. Does republication of official City Council

videos (already publicly available) create a risk of

liability for such republication?

4. What is the standard for “matters of public

interest” with regard to speech concerning

government management of public property?

5. Can defamation exist without at least one

provably false statement?

6. Can de novo appellate review be denied in first

amendment cases?

7. Is a $1.8 judgment excessive for seeking

redress of grievances from a local government?

ii

PARTIES TO THE PROCEEDING

All parties appear in the caption of the case on

the cover page.

RELATED CASES AND PROCEEDINGS

Robin Marien, Gabriel Jebb, Air California

Adventure v. Kuczewski in 37-2015-00015685-CUDF-CTL, Superior Court of California, San Diego.

Jury verdict on July 7, 2022.

Robin Marien, Gabriel Jebb, Air California

Adventure v. Kuczewski in D080658, Court of Appeal

of the State of California, Fourth Appellate District,

Division One. Decision filed on April 16, 2024.

Robin Marien, Gabriel Jebb, Air California

Adventure v. Kuczewski in S285143, Supreme Court

of California. Petition for Review denied on July 24,

2024.

iii

TABLE OF CONTENTS

OPINIONS BELOW.

1

JURISDICTION.

2

CONSTITUTIONAL AND STATUTORY.

3

STATEMENT OF THE CASE

5

Introduction

5

History

10

REASONS FOR GRANTING THE PETITION....... 16

Standard for Limited Purpose Public Figures...16

Protect Citizen’s Rights..............................

18

Protect Publication of Official Documents........ 19

Standard for Matters of Public Interest

20

Requiring Factual Basis for Defamation..

26

Require De Novo Review for Free Speech.

28

Inappropriate Judgment of $1,800,003....

29

Summary of Reasons to Grant Certiorari

30

CONCLUSION.

32

iv

INDEX TO APPENDICES

Appendix A California Supreme Court Petition for

Review Denied

(July 24, 2024)

App. 1

Appendix B California Supreme Court Petition for

Review

(May 24, 2024)

App.3

Appendix C Petition for Rehearing in Court of

Appeal in D080658

(May 1, 2024)

App. 33

Appendix D Opinion in the COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE STATE OF

CALIFORNIA

(April 16, 2024)

App. 56

Appendix E Motion for New Trial

App. 68

(July 18, 2022)........

Appendix F Motion for Judgment Notwithstanding

the Verdict and Motion to Vacate the

Judgment

App. 85

(July 18, 2022)

Appendix G Opinion in the COURT OF APPEAL,

FOURTH APPELLATE DISTRICT

DIVISION ONE STATE OF

CALIFORNIA

(September 28, 2017).......... App. 112

Appendix H Judgment for $1,800,003.00

(July 20, 2022).................... App. 168

vO

TABLE OF AUTHORITIES CITED

CASES

376 U.S. 254 (1964) Times v. Sullivan

418 U.S. 323 (1974) Gertz v. Welch

388 U.S. 130 (1967) Curtis v. Butts

vi 1

IN THE

SUPREME COURT OF THE UNITED STATES

PETITION FOR WRIT OF CERTIORARI

Petitioner respectfully prays that a writ of certiorari

issue to review the judgment below and included as

APPENDIX H.

OPINIONS BELOW

The opinion of the highest state court to review

the merits appears at Appendix D to the petition and

is unpublished. This opinion was issued by the

California Court of Appeal, Fourth Appellate

District, Division One. Appendix C contains a

Petition for Rehearing by that Court which was

denied. Appendix B contains a Petition for Review by

the Supreme Court of California filed on May 24,

2024. Appendix A contains the response that the

Petition for Review was denied on July 24, 2024.

vii 2

JURISDICTION

The date on which the highest state court decided

my case was July 24, 2024 when the Supreme Court

of California denied my Petition for Review.

The Supreme Court of California’s denial followed

the April 16, 2024 affirmation of the Superior Court

of California’s ruling by the Court of Appeal, Fourth

Appellate District, Division One, State of California.

Appendices E and F contain a Motion for New

Trial and a Motion for Judgment Notwithstanding

the Verdict. Both were denied. Appendix H contains

the Court of Appeals Ruling on Motions for SLAPP.

The San Diego Superior Court of California’s

ruling was issued on July 7, 2022.

The jurisdiction of this Court is invoked under 28

U. S. C. § 1257(a).

viii 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment of the United States

Constitution is short and clear:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

Section 1983 of Title 42 of the U.S. Code states:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State ... subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress.

U.S. Constitution - Article III Section 1:

The judicial Power of the United States, shall be

vested in one supreme Court, and in such

inferior Courts as the Congress may from time

to time ordain and establish.

U.S. Constitution - Article III Section 2 :

ix 4

The judicial Power shall extend to all Cases, in

Law and Equity, arising under this

Constitution, the Laws of the United States, ...

U.S. Constitution - First Amendment:

Congress shall make no law respecting an

establishment of religion, or prohibiting the free

exercise thereof; or abridging the freedom of

speech, or of the press; or the right of the people

peaceably to assemble, and to petition the

Government for a redress of grievances.

28 USC §1254.

Cases in the courts of appeals may be reviewed

by the Supreme Court...

x5

STATEMENT OF THE CASE

Statement of the Case - Introduction

This case involves a citizen’s First Amendment

right to seek redress of grievances through local

government. In this case, Petitioner Kuczewski has

been seeking - and continues to seek - proper

oversight of the Torrey Pines City flight park which

is owned by the City of San Diego and leased (at no

cost) to Respondents. Petitioner Kuczewski had been

a hang gliding, paragliding, and sailplane pilot at

that City park since 2004. During that period,

Petitioner Kuczewski personally witnessed or was

otherwise aware a number'of abuses (physical

violence, bullying, lease violatioins, accidents, and

deaths. Petitioner has often brought press clippings,

photos, videos, and eye witness reports to the San

Diego City Council seeking oversight at the park.

Petitioner Kuczewski and other users of the City

Park also met privately with two Mayors of San

xi 6

Diego and many City Councilmembers to urge them

to reactivate the Torrey Pines City Park Advisory

Board to address the safety and fairness issues at

that City Park. All of Kuczewski’s City Council

speeches were televised by the City of San Diego and

made permanently available on their web site.

Kuczewski asserts that all of his statements were

true. Petitioner Kuczewski and a friend (Margie

Holland, also named in the original lawsuit)

frequently copied portions of the publicly available

official San Diego City videos and republished them

on YouTube where they could also be embedded in

other web sites for wider viewing.

None of this would raise an eyebrow if the Torrey

Pines City Park were actually operated by the City of

San Diego. However, the City of San Diego had

delegated authority of that City Park to a private

business named “Air California Adventure, LLC”

which is owned and operated by Respondents

through a flat rate, no cost lease. This lease specified

xii 7

that the public shall have certain rights to use the

property as a public park. However, this lease

arrangement to a private company has instead been

used to shield the Park’s operation from any public

criticism with the claim that the operators are

“private individuals” and not “public figures” or even

“limited purpose public figures”.

This designation of the operators of a public park

as “private figures” by the Superior Court of

California (upheld by the California Court of Appeal

and California Supreme Court) muzzles citizens with

regard to their constitutional right to be openly

critical of the operation of a public park. It also

muzzles citizens in their ability to lobby the City of

San Diego to provide better management of that

public land.

Respondents have argued that they are not

“public figures” or even “limited purpose public

figures” with regard to the City Park because they

xiii 8

have not intentionally “thrust” themselves into the

public eye. But that argument is inherently flawed.

Who could say whether a famous actor pursued their

acting profession for fame or simply for the love of

acting? Who could say whether a famous sports star

pursued their profession for publicity or for the love

of the sport? Who could say whether any “public

figure” had pursued their work for personal interest

or for fame? So the primary factor in the decision

regarding “public” or “private” figures cannot be

ascertained based on their expressed intentions.

Indeed, the primary factor in determining the “public

figure” status must be the degree to which they can

actually affect and impact the public either globally

(as general purpose public figures) or in a specific

area (as limited purpose public figures). It is their

ability to affect and impact the public in some arena

that gives the public a greater right to be critical of

them than of truly private citizens. That standard

was clearly met in this case, because Respondents -

xiv 9

as operators of the Torrey Pines City Park (also

known as the Torrey Pines Gliderport) - have had

complete control over the safety and fairness and

rules of operation at that City-owned public park

throughout all of the events in this case.

Furthermore, the mere fact that Respondents

have voluntarily taken on the lease and management

of a prominent public park makes them limited

purpose public figures with regard to issues

surrounding that park. Respondents have also

advertised themselves on the Internet showing their

pictures and giving their biographies to promote

themselves and their business.

Yet the lower court issued jury instructions in this

case for defamation “per se” against a private citizen.

None of Petitioner Kuczewski’s statements were

proven false, but the incorrect “per se” aspect of the

jury instructions led the jury to focus on whether the

xv 10

statements were damaging without them ever being

proven false.

Statement of the Case - History

Petitioner Kuczewski began regularly flying at

the Torrey Pines Gliderport in 2005. Petitioner had

heard many complaints of Respondent’s abuses.

Petitioner Kuczewski personally witnessed many of

these abuses from 2005 to 2014. In response to these

abuses, Kuczewski began to petition the San Diego

City Council for oversight of the park by an official

Torrey Pines City Park Advisory Board.

In 2011, one of Respondent’s student customers

named Shannon Hamby was badly injured during

training. Hamby’s lawyers contacted Petitioner

Kuczewski to seek his testimony in the case.

Kuczewski initially declined, but was eventually

persuaded to give deposition testimony in the case

(Cal Sup San Diego 37-2013-00052120) in September

of 2014. Kuczewski’s expert testimony of gross

xvi 11

negligence was solid, and the case was quickly settled

in Hamby’s favor for an undisclosed amount of

money. Shortly thereafter (beginning in November of

2014), Respondents began to harass and bully

Kuczewski off the property with tactics of verbal

abuse and physical contact. Kuczewski continually

asserted his rights to be in the park, and allowed

himself to be arrested on three separate occasions to

bring the matter to court (an example famously set

by Rosa Parks decades earlier). However, no charges

were ever filed against Kuczewski, and in all three

cases, Kuczewski was freed with his bail feturned.

Eventually after meeting with San Diego’s City

Attorney, the arrests stopped, and Kuczewski was

again able to enjoy the park beginning in early 2015.

On May 11, 2015, Respondents filed the Complaint in

this action with the Superior Court of California, San

Diego County (Case # 37-2015-00015685-CU-DFCTL). The Complaint included causes of action for

interference, defamation, infliction of emotional

xvii 12

distress, and declaratory and injunctive relief. These

causes of action cited several years of speeches by

Petitioner Kuczewski to the San Diego City Council

requesting oversight of Respondent’s operation of a

San Diego City Park. Kuczewski adamantly denies

all of these causes of action. The causes of action for

defamation alleged that Petitioner Kuczewski’s

republication of City Council speeches removed their

protected status. Petitioner Kuczewski filed a CrossComplaint for assault, battery, and false

imprisonment related to retaliation for his speeches.

Both sides filed special SLAPP motions to strike the

opposing complaints, and both were denied. Both

parties appealed and both appeals were denied.

Petitioner Kuczewski was initially represented by

attorney Chad Morgan. However, Kuczewski could

not afford the cost of the representation and has been

self-represented throughout most of this case.

Parties disagreed During Discovery with

Petitioner Kuczewski delivering 2,673 requested

xviii 13

items (photos, videos, text messages, and

documents), and Respondents delivering only a few

publicly available documents and no photos or videos

or text messages as requested.

In 2019, Respondents identified their “Doe-1” as

Marjorie Mae Holland. Holland was named in 32 of

the 33 causes of action and in all 27 causes for

defamation. Defendant Holland was accused of

republishing portions of Kuczewski’s City Council

speeches that she downloaded from the City of San

Diego web site. Holland subsequently filed a special

motion to strike under Section 425.16 (SLAPP).

Defendant Holland’s motion was denied, appealed

and denied by the California Court of Appeals. The

Superior Court later ruled that Holland’s case was

defaulted for failing to file an answer to the

complaint after her SLAPP appeal had been denied.

Holland asserted that her answer was the same as

Kuczewski’s answer for all causes of action. The

Court ruled Holland to be in Default.

xix 14

The case against Kuczewski went to trial in June

of 2022. Much of Petitioner Kuczewski’s evidence was

not allowed by the Court including the actual video of

the Hamby injury accident where Kuczewski had

testified as an expert witness against Respondents.

Petitioner Kuczewski asserted that this video was of

importance because it motivated the actions against

him which were initiated shortly after Kuczewski’s

deposition in that injury lawsuit. The Court ruled

against admission of that evidence.

Prior to the trial, Petitioner Kuczewski submitted

and argued for jury instructions appropriate for

defamation of public figures and/or limited purpose

public figures. However, the actual instructions given

to the jury were for defamation of private citizens.

On July 7, 2022, the Jury delivered a verdict for

Plaintiffs/Respondents. The only surviving Cause of

Action was for Defamation Per Se. The jury awarded

damages of $500,001 to Air California Adventure,

xx 15

damages of $550,001 to Robin Marien, and damages

of $700,001 to Gabriel Jebb. The jury also awarded

$50,000 in punitive damages for a total of

$1,800,003. It’s worth noting that this award was

issued in July of 2022 shortly after the June 2022

jury award of $15 million judgment against Amber

Heard in the widely publicized Johnny Depp / Amber

Heard defamation trial (later reduced to $350,000 by

the court). Petitioner asserts that this widely

publicized award improperly influenced the jury in

this case, and no mitigating instructions were given.

On July 22, 2022, Appellant Kuczewski submitted

a Motion for Judgment Notwithstanding the Verdict

and a Motion for New Trial. Both motions were

denied by the Superior Court.

On August 1, 2022, Appellant Kuczewski filed an

Appeal with the California Court of Appeal (Fourth

Appellate District, Division One, case D080658). On

April 16, 2024, the Court of Appeal affirmed the

xxi 16

Superior Court’s ruling. On May 1, 2024, Appellant

Kuczewski filed a Petition for Rehearing with the

Court of Appeal. On May 13, 2024, Appellant

Kuczewski’s Petition for Rehearing was denied. On

May 24, 2024, Petitioner Kuczewski filed a Petition

for Review with the Supreme Court of California

(Case S285143). Kuczewski’s Petition for Review was

denied on July 24, 2024.

REASONS FOR GRANTING THE PETITION

1. To properly establish the standard for

classification of limited purpose public figures.

The Torrey Pines Gliderport is part of the Torrey

Pines City Park and is wholly owned by the City of

San Diego. It is clear that anyone operating that site

on behalf of the government cannot claim to be a

“private” figure. Yet that is exactly what has

happened in this case. Plaintiffs/Respondents have

themselves sought out the notoriety of operating the

world famous Torrey Pines Gliderport under a no-

xxii 17

cost lease. The evidence shows that the income from

that choice has been well over one million dollars

every year. In return for that income, Respondents

have assumed responsibility for all operations at that

site - with no effective oversight from the City of San

Diego or the public. Indeed, that has been Petitioner

Kuczewski’s primary concern: lack of oversight. So

where does the “buck” stop in that situation? Who

should be held accountable for accidents, deaths,

bullying, and other abuses at that site? If citizens

can’t complain to their own City, then there is no

mechanism for feedback, and the system is out of

control. That cannot be allowed as a template for

management of public resources.

Plaintiffs/Respondents have advertised

themselves on their own web site for decades which

also makes them voluntary public figures (or at least

limited purpose public figures with regard to the

Gliderport). The California Courts have erred by

protecting them as private citizens.

xxiii 18

2. To protect citizen’s rights to be critical of their

government and their policies.

If the current ruling is allowed to stand, then all

governments can effectively shield themselves from

public criticism by simply hiring private businesses

to carry out public functions. According to the

Plaintiffs / Respondent’s theory in this case, the

operators of the Torrey Pines Gliderport are not

“public figures” or even “limited purpose public

figures” in spite of the fact that they are operating a

public park owned by the people of San Diego. If this

were allowed to stand, then all government services

from fire departments to police departments could be

replaced by private businesses to gain protection

from public criticism. The only interpretation that

avoids this disaster is to recognize that any business

operating as a defacto arm of the government (such

as operating a public park) cannot claim to be

“private figures” with respect to the freedoms of

speech granted by the federal and state

xxiv 19

constitutions. This is especially true (as in this case)

where such a private business is given wide latitude

to make and enforce rules regarding the public’s

safety and the public’s use of public land.

3. To establish that official and public government

documents (including video records) may be freely

republished without fear of million dollar law

suits for “defamation”.

Plaintiffs/Respondents have already admitted

that Appellant Kuczewski’s speeches before the City

Council are protected speech. However, they claim _

that republication of those exact same speeches by

posting them on the Internet at YouTube.com or

USHawks.org somehow removes their protected

status. This is an outrageous conclusion because ALL

City Council proceedings are already broadcast on

the Internet by the City of San Diego itself. Indeed,

that’s where all of Kuczewski’s videos actually

originated. All of the alleged “defamatory” videos

were downloaded from the City of San Diego web site

xxv 20

and then uploaded to YouTube. In both cases, that

same information is publicly available to everyone on

the Internet. Yet Plaintiffs/Respondents have not

sued the City of San Diego for publication of those

exact same videos. Furthermore, with the recent

widespread adoption of remote “Zoom” participation,

there are no limits to who can observe the speakers

at City Council meetings. The post-COVID City

Council chambers now have enough “seating” for

everyone in the world with access to the Internet.

4. To establish standards for “matters of public

interest” with regard to speech concerning

government management of public property.

Much of this case (for over 9 years now) has

hinged on the standard for a “matter of public

interest”. So far, all of the California Courts involved

in this case have determined that the operation of

the Torrey Pines Gliderport (part of a San Diego city

park) is somehow not a matter of public interest even though it is a very valuable piece of land fully

xxvi 21

owned by the City of San Diego. This determination

was used in denial of motions for SLAPP and in the

Jury Instructions treating Plaintiffs/Respondents as

“private citizens” rather than “limited purpose public

figures”. Appellant Kuczewski argues that this

determination is incorrect and it sets a number of

undesirable precedents.

There is no argument among the parties that the

13.5 acres of oceanfront property leased to

Respondents (for free) as the “Torrey Pines

Gliderport” is fully and completely owned by the City

of San Diego. There is no argument among the

parties that the Torrey Pines Gliderport is part of

the Torrey Pines City Park and that it falls under the

jurisdiction of the City of San Diego (which includes

the San Diego City Council, the Mayor of San Diego,

and the people of San Diego). These two facts alone

(that it’s 13.5 acres of oceanfront public park

property, and that it is completely owned by the City

of San Diego) makes it a matter of public interest.

xxvii 22

The property value alone justifies this classification.

Furthermore, the Torrey Pines Gliderport is an

admittedly world-famous hang gliding and

paragliding site. And finally, the Torrey Pines

Gliderport receives both local and national press

coverage for both its fabulous flying opportunities

and its numerous accidents and deaths. For several

decades, the accidents and deaths at the Gliderport

have been routinely featured in both television and

print media in San Diego. Some of those incidents

have also received nationwide press coverage.

Each of these factors alone could be decisive in

classifying the Torrey Pines Gliderport as a matter of

public interest. But taken together, the weight of the

evidence is overwhelming.

And even if all of that were not enough to tip the

scales in favor of being a matter of public interest,

Petitioner Kuczewski’s own speeches themselves

provided conclusive evidence. The central and

xxviii 23

recurring theme in all of Kuczewski’s videotaped City

Council speeches (presented at trial and during

appeal) was a simple request for the City of San

Diego to provide some form of oversight of a private

business operating a free lease of the City’s public

park.

In particular, Kuczewski continually urged the

City Council and the Mayor to reactivate the Torrey

Pines City Park Advisory Board. That Board was

formed in 2007 as a result of San Diego County

Superior Court Case No. GIC 861914. That case was

brought against the City of San Diego by the Coastal

Law Enforcement Action Network (CLEAN) for poor

oversight of the Torrey Pines Gliderport business. On

June 27, 2007, the City of San Diego and CLEAN

settled the lawsuit with a settlement agreement that

specified the creation of the “Torrey Pines City Park

Advisory Board” (TPCPAB). The TPCPAB was

formed in 2008, and “deactivated” in 2010. But

during that time, Kuczewski spoke at every single

xxix 24

TPCPAB meeting - even though the meetings were

not recorded or televised. And during that same time

period, Kuczewski did NOT speak at the San Diego

City Council meetings - which WERE televised. If

Kuczewski’s goal (as alleged) had been defamation

and not oversight, then why would he have avoided

the City Council spotlight in favor of the much

smaller and non-televised TPCPAB meetings?

The answer is clear. Kuczewski was petitioning

his government for redress of grievances as protected

by the Constitution of the United States (First

Amendment) and the Constitution of California

(Article 1, Section 2(a) and Section 3(a)).

Most importantly, the fact that the City of San

Diego even formed an official Torrey Pines City Park

Advisory Board is defacto evidence that the property

is a matter of Public Interest. The 11 Members of the

TPCPAB were all selected as either representatives

xxx 25

of existing public organizations or as direct

appointees of government officials:

Ginny Barnes: Mayor of San Diego

Ken Baier: Torrey Hawks HG Club

Ronald Brown: Torrey Pines Gulls Club

Mary Coakley: Park & Recreation Area 1

David Metzgar: San Diego HG and PG

Chris Schmidt: Sierra Club, San Diego

Edward Slater: Glider Clubs of So Cal

Brian Thompson: Torrey Pines Association

Linda Colley: University Planning Group

Ken King: Council District 1 Representative

Michael Stepner: Park & Recreation Board

All of those groups were part of the Torrey Pines

City Park Advisory Board because the Torrey Pines

City Park was (and still is) a matter of public

interest. Indeed, the formation of the Advisory Board

itself was ratified by the San Diego City Council.

How could Kuczewski’s public speeches urging the

continuation of that existing Advisory Board NOT be

considered a matter of public interest?

The matter of public interest issue is one of the

most important issues in this case because it was

used to deny Petitioner Kuczewski's Motion for

xxxi 26

SLAPP and (more importantly here) to adversely

affect the Jury Instructions issued at trial.

The matter of public interest issue is also one

which has little or no clear guidance from the higher

courts. Common sense would dictate that this case

does involve matters of public interest (as described

above), and yet the rulings by the California Superior

Court, the California Court of Appeal, and the

California Supreme Court have indicated otherwise.

A clarification of this matter of law is important for

both Courts and Citizens to understand the rights

and limitations on their ability to safely petition

their government for redress of grievances with

regard to public property being managed by “private”

companies.

5. To establish a firm and factual basis for claims of

defamation requiring at least SOME defamation.

One of the tell-tale signs of the weakness of

Respondent’s case is that they don’t quote a single

xxxii 27

“smoking gun” statement of Petitioner Kuczewski’s

that they can cite as defamatory. They don’t have

such a quote because Kuczewski has been careful and

accurate with his comments. The most egregious

example they can find is Kuczewski using the word

“thugs” to describe the bullying behavior he

witnessed and documented. Kuczewski has shown

undisputed videos of Respondents “giving the finger”

and shouting obscenities (thuggish behavior).

Petitioner Kuczewski has shown undisputed photos

of Respondents smoking in the non-smoking City

Park (thuggish behavior). Petitioner has shown

undisputed photos of lease violations for keeping a

hog on the premises and unlawful subleasing of the

premises (thuggish behavior). Petitioner has shown

video of unwanted physical violence by Respondents

(thuggish behavior). All of those statements and

videos were true. There was no statement of

Kuczewski’s that was proven to be false. Lacking any

actual false statements, Respondents have relied on

xxxiii 28

how it might “feel” to have things said that, while

true, were not flattering. This cannot become the

standard for defamation or we will have lost our right

to speak the truth.

6. Freedom of speech appeal decided without de novo

review?

Petitioner Kuczewski asserts that important

issues of law are involved in this case, and the case

should have been reviewed under the “de novo”

standard during the Appeal process. Respondents

have, for example, conceded that their law suit does

NOT include any of Appellant Kuczewski’s privileged

statements as spoken to the City Council and that

such speech is protected speech. However,

Respondents instead claim that the mere

republication of sections of the City Council’s own

video (which has already been published by the City

of San Diego) somehow becomes unprotected speech.

This establishes a new precedent in law that the

xxxiv 29

simple republication of protected City Council

speeches may subject the publisher to claims for

defamation. If allowed to stand, this decision

undermines the whole notion of freedom of the press

with regard to publication of our government

meetings. As such, this case deserved to be reviewed

de novo. In particular, the case should have been

reviewed on its merits by viewing the actual video

evidence of Kuczewski’s speeches to the San Diego

City Council. Yet the California Court of Appeal

decision did not address this most important aspect

of the case.

7. To establish that a judgment of 1.8 million dollars

is inappropriate in cases where citizens petition

their government for redress of grievances.

The judgment against Kuczewski for 1.8 million

dollars is obscene, and it reflects the lack of any

sanity checking within our justice system. There was

no financial evidence presented that Plaintiffs

suffered any losses due to Kuczewski’s statements.

xxxv 30

The hired “expert” made all kinds of general

statements, but provided no actual numbers showing

either income or loss of income over time.

Most importantly, this judgment has had an

enormous chilling effect on the reporting of abuses in

the sports of hang gliding and paragliding. These

sports are currently unregulated by the FAA, and

they are dominated by access to flying sites such as

the Torrey Pines Gliderport. The fear of speaking up

at City Council or testifying in a Court of Law will

cut off the feedback mechanisms needed to keep

these sports safe.

8. Summary of Reasons to Grant a Writ of Certiorari

The management of public land can never be a

private matter, and the people making decisions

about public land can never be private parties.

Indeed, before every single City Council speech at

issue in this case, the San Diego City Clerk had read

the following statement into the record:

xxxvi 31

Non-agenda public comment is an opportunity

for members of the public to make comment on

subject matters within the jurisdiction of the

Council.

And yet none of Petitioner Kuczewski’s alleged

defamatory City Council speeches regarding the

Gliderport (all of which were produced as evidence to

the California Courts) were ever stopped or

interrupted by the San Diego City Council or City

Clerk as being outside the jurisdiction of the Council.

So by the City of San Diego’s own repeated official

actions, all of the alleged speeches were indeed

appropriate subject matter for the San Diego City

Council to consider. This is the final proof that all of

Petitioner Kuczewski’s speeches were matters of

public interest contrary to the decisions of the

California Courts. If they were appropriate for the

City Council, then they were, by definition, matters

of public interest and were appropriately in the

public eye for public review of limited purpose public

figures with regard to operation of the Gliderport.

xxxvii 32

Finally, the precedents that have been established

in 376 U.S. 254 (1964) Times v. Sullivan, 418 U.S.

323 (1974) Gertz v. Welch, and 388 U.S. 130 (1967)

Curtis v. Butts have become outdated and do not

address the modern environment where video

cameras are everywhere, and every citizen is a

potential reporter. Please take this case to update

the scope and limitations of our First Amendment in

the modern era.

Conclusion

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

/s/ Robert Michael Kuczewski

Date:

October 22. 2024