A *SATANIST* On L.A. City Council ?
Martin F. Abernathy
and Appellant. ERIN-MARISOL S. JENKINS, Plaintiff and Respondent, v.
STEVE LAMB, Defendant and Appellant.
B154091, B159265
COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION
FOUR
2003 Cal. App. Unpub. LEXIS 2558
March 17, 2003, Filed
NOTICE: [*1] NOT TO BE PUBLISHED IN OFFICIAL REPORTS CALIFORNIA
RULES OF COURT, RULE 977(a), PROHIBITS COURTS AND PARTIES FROM CITING
OR RELYING ON OPINIONS NOT CERTIFIED FOR PUBLICATION OR ORDERED
PUBLISHED, EXCEPT AS SPECIFIED BY RULE 977(B). THIS OPINION HAS NOT
BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES
OF RULE 977.
PRIOR HISTORY: APPEALS from orders of the Superior Court of Los
Angeles County. Los Angeles County Super. Ct. No. GC028703. Los
Angeles County Super. Ct. No. GC027626. Coleman A. Swart, Judge.
DISPOSITION: Affirmed.
COUNSEL: Schrieffer & Downey, Paul K. Schrieffer, Guy E. Jamison;
Maxwell L. Jouanicot for Defendant and Appellant.
Law Offices of James A. Gallo and James A. Gallo for Plaintiffs and
Respondents Arthur K. Snyder and Erin-Marisol S. Jenkins.
JUDGES: CURRY, J. We concur: EPSTEIN, Acting P.J., HASTINGS, J.
OPINIONBY: CURRY
OPINION: Appellant Steve Lamb appeals from two separate court orders
denying his motions to strike two complaints brought by respondents,
former Los Angeles City Councilmember Arthur K. Snyder and his
daughter Erin-Marisol S. Jenkins. The complaints contained similar
allegations of defamation and infliction of emotional distress, and
the motions to strike were [*2] brought under the so-called
"anti-SLAPP" n1 statute, Code of Civil Procedure section 425.16. We
affirm the orders.
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n1 "SLAPP" stands for "Strategic Lawsuit Against Public
Participation."
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-FACTUAL AND PROCEDURAL BACKGROUND
The E-Mail
Appellant was a member of the Altadena Town Council. In May 2001, he
conducted a back and forth e-mail or instant message "conversation"
about a real estate development taking place in the area, with Greg
McPhee, a fellow council member, and Jennifer Plaisted, a deputy to
Los Angeles County Supervisor Michael Antonovich. In the e-mail,
appellant referred to respondent Snyder as "that incestual child
molester, Satan worshiping, Hillside Strangler befriending and
confidant of L.A. politicos . . . ." The e-mail suggested that Snyder
had assisted in giving Antonovich campaign donations that did not show
"on the books" because they appeared as "donations given at $ 1000
each by housewives, eight year old kids, [and] college students."
Appellant went on to explain: [*3] "Art Snyder was an LA City
Council member. He gave Angelo Bono parking passes to City and County
yards. Bono used some government vehicles to transport his victims
before and after death. During the killing spree Snyder continued to
give out passes to Bono. When I worked at Centrum several of us worked
with a PI investigating the case. One night Mike Canfield and the PI
went to a Satanic mass where they were informed high officials of LA
government were involved. They took infra red photos. I am told Snyder
was officiating and assisting him was our local DA. The guys were
spotted at one point and fled. Photos were turned over to the LAPD and
vanished -- imagine that. Snyder's daughter came forward and claimed
he molested her, subjected her to bondage and torture, had her gang
banged by fellow Satanists for YEARS. Rather than be indicted and go
to trial, Snyder was allowed to resign from politics and promised
never to run again. (His satanic assistant the DA cut the deal[.])
Rank has [its] privileges. Snyder then became the local Bag man for
several industries and the Chinese mafia. When one of the deals was
exposed, the Chinese wife split and Art was indicted. He died a couple
[*4] years ago of prostate cancer."
The e-mail between appellant and McPhee was copied to Camille Dudley.
Plaisted gave or sent the e-mail to her boss, Antonovich. Someone,
presumably Plaisted or Antonovich, passed it along to Snyder.
The Complaints
Snyder filed a complaint for slander, contending that as a result of
the publication of the above statements to the four recipients, he
suffered "loss of his reputation, shame, mortification, emotional
distress and hurt feelings, all to his general damage in the sum of
One Million Dollars ($ 1,000,000.00)." In a first amended complaint
(FAC), Snyder added causes of action for libel per se, intentional
infliction of emotional distress, and negligent infliction of
emotional distress, and amended his damages to include "loss of
sleep." The FAC expressed the belief that those who read the statement
"understood it to state that [Snyder] was a parental child molester, a
person who surrendered his child to Satanists for sexual abuse, a
worshiper of Satan, a Satanic priest, and an accessory to the
'Hillside Strangler' serial murders."
Snyder's daughter, respondent Jenkins, filed a separate complaint for
libel per se, slander per se, intentional [*5] infliction of
emotional distress, and negligent infliction of emotional distress. n2
Her complaint alleged that "the statements made . . . exposed
[Jenkins] to contempt, ridicule and a bad reputation as a person who,
for a period of years was molested by her father who would bind and
torture her and turn her over to others worshipping evil for sexual
gratification" and that "the letter is libelous on its face" because
"it exposes and identifies [Jenkins] to hatred, contempt, ridicule and
obloquy as a child molested by a parent, by someone who would
surrender his child to Satanists for sexual abuse, a worshiper of
Satan, a Satanist priest." The complaint said Jenkins suffered "loss
of . . . reputation, shame, mortification, depression, loss of sleep,
emotional distress and hurt feelings . . . ."
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n2 The two cases were deemed "related" in the trial court and
consolidated for purposes of appeal.
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The Demurrers
Appellant demurred to the complaints, asking the court to take
judicial notice of numerous [*6] Los Angeles Times newspaper articles
which we summarize briefly. An article dated January 2, 1985,
announced Snyder's resignation from the city council and reported that
Snyder was fighting allegations that he molested his nine-year-old
daughter four or five years earlier. According to the report, a
dependency court had found sufficient evidence to support the
allegations. (Clayton, Snyder to Quit City Council, Blames Mounting
Pressures, L.A. Times (Jan. 2, 1985), pt. A, p. 1.) In an article
dated May 3, 1985, it was stated that molestation charges would not be
filed because the district attorney's office did not believe there was
sufficient evidence to obtain a conviction. Snyder's daughter was
described as "'a reluctant witness who refuses to testify in front of
her father'" and it was said that she reported the alleged sexual
abuse during "an emotional time . . . ." (Timnick & Clayton, Snyder
Won't Be Charged With Alleged Abuse, L.A. Times (May 3, 1985), pt. 2,
p. 1.) It was further reported that the dependency court found the
allegations to be substantiated after an eight-day hearing wherein two
physicians had testified to physical evidence of abuse, and Snyder's
daughter [*7] testified that her father had been the perpetrator. As
a result of the dependency court's findings, the daughter was placed
in a foster home. An October 5, 1985, article summarized the scandals
that led to Snyder's resignation from the city council as follows:
"But then came a divorce from his second wife and a major custody
battle in which she alleged Snyder beat her, while he said she beat
him. Later, he was removed from posts on a City Council committee and
the Regional Coastal Commission after complaints that he used them to
boost his own fund-raising. [P] . . . One of several accidents in a
city-owned car led to a drunk-driving charge and a trial that ended in
a hung jury in 1980. And, in a major controversy that hurt his
fund-raising, he was fined $ 14,000 by the state Fair Political
Practices Commission for admitted conflict-of-interest violations,
including failing to disclose about $ 142,000 in outside income. And
during a Dependency Court hearing late last year, Snyder's 9-year-old
daughter said he had molested her several years ago." (Clayton, Snyder
Ends 18 Years on Council With Tears, Praise, L.A. Times (Oct. 5,
1985), pt. A, p. 1.)
On January 27, 1986, it was reported [*8] that Snyder intended to
begin a career as a lobbyist. A series of articles written between
1995 and 1998 described how Snyder had been convicted of helping a
shipping conglomerate launder illegal donations to city council
members and others. He was convicted and sentenced to jail, but an
appeals court overturned the criminal conviction and held he should
have been subjected to administrative fines instead. The appellate
court was reversed by the California Supreme Court, and in June 2000,
the appellate court rejected Snyder's claims of having been subjected
to unlawful search and seizure and affirmed Snyder's conviction of
eight counts of making political contributions in a false name based
on his guilty plea.
The demurrer to Snyder's FAC was continued to a date after appellant's
special motion to strike pursuant to Code of Civil Procedure section
425.16 n3 (discussed infra) was heard, and then taken off calendar.
The demurrer to Jenkins's complaint was overruled.
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n3 All further statutory references are to the Code of Civil Procedure
unless otherwise indicated.
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The Special Motions to Strike
Appellant filed special motions to strike Snyder's FAC and Jenkins's
complaint pursuant to section 425.16. The newspaper articles described
above were submitted in support of both motions. In his declarations
in support of both motions, appellant stated that he remembered the
allegations against Snyder of campaign improprieties, the charges of
drunk driving, and the press reports of Snyder's daughter's
molestation allegations. Appellant stated that he read in a book
written about the Hillside Strangler that Bono had a sticker bearing
the official seal of Los Angeles County displayed in the lower corner
of his windshield "courtesy of a Los Angeles County Councilman . . .
." Appellant further stated that Mark Alexander, a friend who had done
research on the Hillside Strangler case, had reported that a friend of
Alexander's assisted a private investigator who had photographed a
satanic ritual involving Snyder, that Snyder had involved his daughter
in group molestation related to satanic rituals, and that Snyder had
given Angelo Bono passes to government yards. Based on what appellant
already knew about Snyder and the fact that Alexander had revealed
[*10] information before which turned out to be truthful, appellant
believed Alexander.
Appellant submitted a declaration from McPhee in which he stated that
he already knew about the molestation and money laundering charges
from the wide publicity they received. McPhee stated that nothing in
the e-mail changed his opinion of Snyder, which was already negative
due to Snyder's association with political corruption. Camille Dudley
stated in a declaration that she never read the e-mail, and that she,
too, already held a negative view of Snyder's reputation due to the
political corruption and personal failures widely publicized.
In support of the motion to strike Jenkins's complaint, McPhee
submitted a separate declaration which, in addition to the above,
stated he did not know Jenkins and had no idea of the identity of
"Snyder's daughter," referred to in the e-mail. The e-mail caused him
to have no thoughts about her other than as a childhood victim of
abuse.
Peg Hardiman, a citizen of Altadena, who had corresponded with
Plaisted about a matter of concern to the community, stated in a
declaration that Plaisted had asked for copies of any correspondence
Hardiman had received from appellant [*11] containing negative
comments about Plaisted. According to the declaration, Plaisted had
stated to Hardiman "words to the effect that she was extremely angry,
did not want to deal with [appellant] anymore and would use that type
of correspondence against him in order to bring his public life to an
end."
Opposition to Motion to Strike
Snyder both opposed the motion to strike and sought leave to conduct
discovery necessary for determination of the SLAPP motion, contending
he needed to depose appellant. In his declaration in opposition to the
motion, appellant denied molesting his daughter or allowing her to be
molested by anyone else, denied being involved in satanism, and denied
knowing the Hillside Strangler or assisting him with obtaining parking
passes. Jenkins submitted a declaration in which she denied having
been abused by her father, and stated that she had falsely claimed he
had molested her as a result of her mother's suggestion. She reported
that she had retracted her accusations in 1987, and had been sent to
live with her father thereafter.
In the separate declaration in opposition to the motion to strike her
own complaint, Jenkins denied that a molestation had occurred [*12]
in more detail, this time stating that she had been coached by her
mother to say that Snyder molested her at a time when she was unaware
of the seriousness of the charge, and that she told the truth to a
social worker two years later. In her declaration she attested to her
"belief" that "people with a good reputation would shun [her] and
would not wish to associate with [her] if they were to hear the
untruthful statements" and her concern "that many people who hear
[appellant's] untruthful statements about me will believe those
statements and will then repeat the statements as being true and
correct."
Trial Court's Rulings
The trial court denied the motion to strike Snyder's complaint stating
in its order: "The Court makes the preliminary finding, for the
purposes of this motion only, that [Snyder] is a public figure. The
Court finds that [Snyder] has made a showing that he will probably
prevail because the statements were made with malice. There is clear
and convincing evidence that [appellant] made the statements with
reckless disregard of their falsity. The evidence is also clear that
this suit will not have any chilling effect on [appellant's] rights of
free [*13] speech of petitioning the government for redress of
grievances."
In conjunction with this order, the court denied Snyder's motion for
further discovery as "moot." It overruled various objections to
appellant's evidence raised by Snyder.
The court also denied the motion to strike Jenkins's complaint. The
order simply stated that the motion was "denied." At the hearing, the
court stated: "I don't know what the intent of the declarant was in
making the e-mail, but the bottom line is, on the face, they appear to
be libel per se, and I think at this point they are not protected."
DISCUSSION
I
The Legislature enacted section 425.16 in response to its perception
"that there has been a disturbing increase in lawsuits brought
primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances." ( §
425.16, subd. (a); Wilcox v. Superior Court (1994) 27 Cal.App.4th 809,
817, disapproved in part in Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53.) Section 425.16 provides a procedure for
the court "to dismiss at an early stage nonmeritorious litigation
meant to chill [*14] the valid exercise of the constitutional rights
of freedom of speech and petition in connection with a public issue."
(Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226,
235.) To this end, section 425.16 provides: "A cause of action against
a person arising from any act of that person in furtherance of the
person's right of petition or free speech under the United States or
California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim." ( § 425.16, subd. (b)(1).)
As used in the statute, "'act in furtherance of a person's right of
petition or free speech under the United States or California
Constitution in connection with a public issue'" includes "(1) any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law; (2) any written or oral statement or writing made
in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official [*15]
proceeding authorized by law; (3) any written or oral statement or
writing made in a place open to the public or a public forum in
connection with an issue of public interest; (4) or any other conduct
in furtherance of the exercise of the constitutional right of petition
or the constitutional right of free speech in connection with a public
issue or an issue of public interest." ( § 425.16, subd. (e).)
The courts are in agreement that "'section 425.16, subdivision (b)(1),
requires the trial court to engage in a two-step process when
determining whether a defendant's section 425.16 motion to strike
should be granted. First, the court decides whether the defendant[n4 ]
has made a threshold prima facie showing that the defendant's acts, of
which the plaintiff complains, were ones taken in furtherance of the
defendant's constitutional rights of petition or free speech in
connection with a public issue. [Citation.] If the court finds that
such a showing has been made, then the plaintiff will be required to
demonstrate that 'there is a probability that the plaintiff will
prevail on the claim.'" (Paul for Council v. Hanyecz (2001) 85
Cal.App.4th 1356, 1364, disapproved [*16] in part on another ground
in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53;
accord, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th
468, 473-474; Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp.
819-825.) The burden in the second stage is also described as a
requirement that the plaintiff present "a 'prima facie showing of
facts' that, if proved at trial, would support a judgment in the
plaintiff's favor" (Lam v. Ngo (2001) 91 Cal.App.4th 832, 845) or that
he or she "state[] and substantiate[] a legally sufficient claim . . .
." (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at
p. 63.)
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n4 Although the moving party is generally the defendant, it should be
noted that the provision also applies to cross-claims and petitions. (
§ 425.16, subd. (h).)
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In ruling on the motion to strike Snyder's FAC, the court implicitly
found that appellant had met the threshold requirement [*17] of
showing the acts described in the complaint were undertaken in
furtherance of his rights of free speech. The court went on to the
second step and concluded that Snyder "has made a showing that he
[would] probably prevail because the statements were made with malice"
and that "there [was] clear and convincing evidence that [appellant]
made the statements with reckless disregard of their falsity."
The court further said in its order that the evidence was "clear that
this suit will not have any chilling effect on [appellant's] rights of
free speech of petitioning the government for redress of grievances."
Appellant expresses concern that this statement indicates the court
believed the FAC was not subject to the anti-SLAPP statute. We do not
read the court's order as intending to convey that meaning. However,
to the extent the court believed that it was necessary to make a
finding that the plaintiff subjectively intended to chill the
defendant's right of free speech or that the complaint actually had
that effect, several recent Supreme Court opinions have made clear
that such matters are irrelevant. (See Equilon Enterprises v. Consumer
Cause, Inc., supra, 29 Cal.4th at pp. 67-68, [*18] fn. omitted
["While it may well be, as Equilon asserts, that it had pure
intentions when suing Consumer Cause, such intentions are ultimately
beside the point. As demonstrated, Equilon's action for declaratory
and injunctive relief expressly was based on Consumer Cause's activity
in furtherance of its petition rights. The Court of Appeal correctly
held that Consumer Cause, having satisfied its initial burden under
the anti- SLAPP statute of demonstrating that Equilon's action was one
arising from protected activity [citation], faced no additional
requirement of proving Equilon's subjective intent"]; City of Cotati
v. Cashman (2002) 29 Cal.4th 69, 75 ["The same considerations of law
and policy, generally, that bar judicial imposition on the anti-SLAPP
statute of an intent-to-chill proof requirement bar judicial
imposition of a chilling-effect proof requirement"].)
Accordingly, we move onto the question of whether Snyder has met his
burden of establishing a probability of prevailing on his causes of
action for libel, slander, and the other related claims. n5
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n5 Although we specifically address only the libel and slander claims,
the law is clear that to the extent language is protected for purposes
of libel or slander claims, it is also protected for purposes of
related claims such as violation of right to privacy or infliction of
emotional distress. (See Hustler Magazine v. Falwell (1988) 485 U.S.
46, 56, 99 L. Ed. 2d 41, 108 S. Ct. 876 [a public figure "may not
recover for the tort of intentional infliction of emotional distress .
. . without showing . . . that the publication contains a false
statement of fact"]; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400,
1421-1422 [affirming trial court's decision to strike claims for
intentional and negligent infliction of emotional distress under
section 425.16 when claims were based on exercise of right of free
speech]; Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th
345, 361 [if defamatory statement is privileged, defendant is also
immune from tort liability based on intentional and negligent
infliction of emotional distress].)
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II
According to Civil Code section 45, libel is "a false and unprivileged
publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred,
contempt, ridicule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his occupation." A
libel may be per se or per quod. "Where the statement is defamatory on
its face, it is said to be libelous per se, and actionable without
proof of special damage. But if it is covert defamation, i.e., if the
defamatory character is not apparent on its face and requires an
explanation of the surrounding circumstances (the 'innuendo') to make
its meaning clear, it is not libelous per se, and is not actionable
without pleading and proof of special damages." (5 Witkin, Summary of
Cal. Law (9th ed. 1988) Torts, § 481, p. 565, italics omitted.) "If no
reasonable reader would perceive in a false and unprivileged
publication a meaning which tended to injure the subject's reputation
in any of the enumerated respects, then there is no libel at all. If
such a reader would perceive a defamatory meaning without extrinsic
aid beyond his or her own [*20] intelligence and common sense, then .
. . there is a libel per se. But if the reader would be able to
recognize a defamatory meaning only by virtue of his or her knowledge
of specific facts and circumstances, extrinsic to the publication,
which are not matters of common knowledge rationally attributable to
all reasonable persons, then . . . the libel cannot be libel per se
but will be libel per quod." (Barnes-Hind, Inc. v. Superior Court
(1986) 181 Cal. App. 3d 377, 386- 387, 226 Cal. Rptr. 354.)
The distinction is significant because "if [the plaintiff] can plead
and prove libel per se [he or she] need not prove special damages[.]"
n6 (Barnes-Hind, Inc. v. Superior Court, supra, 181 Cal. App. 3d at p.
382.) "Damage to plaintiff's reputation is conclusively presumed and
he need not introduce any evidence of actual damages in order to
obtain or sustain an award of damages." (Contento v. Mitchell (1972)
28 Cal. App. 3d 356, 358, 104 Cal. Rptr. 591; accord, Slaughter v.
Friedman (1982) 32 Cal.3d 149, 154, 185 Cal. Rptr. 244, 649 P.2d 886
["'A libel which is defamatory of the plaintiff without the necessity
[*21] of explanatory matter, such as an inducement, innuendo or other
extrinsic fact, is said to be libel on its face. Defamatory language
not libelous in its face is not actionable unless the plaintiff
alleges and proves that he suffered special damage as a proximate
result thereof'"]; 5 Witkin, Summary of Cal. Law, supra, Torts, § 480,
p. 565 ["[A libel is] considered actionable per se; i.e., injury is
presumed to follow from the act, and the plaintiff is not required to
plead or prove special damages. He is always entitled, in the absence
of a good defense, to a judgment for at least nominal damages, to
expose the false charges and vindicate his reputation"]; see Civ.
Code, § 45a ["Defamatory language not libelous on its face is not
actionable unless the plaintiff alleges and proves that he has
suffered special damage as a proximate result thereof"].)
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n6 Special and general damages have been given a specific meaning for
purposes of a defamation action by section 48a of the Civil Code:
"'General damages' are damages for loss of reputation, shame,
mortification and hurt feelings[.]" (Civ. Code, § 48a, subd. (4)(a).)
"'Special damages' are all damages which plaintiff alleges and proves
that he has suffered in respect to his property, business, trade,
profession or occupation, including such amounts of money as the
plaintiff alleges and proves he has expended as a result of the
alleged libel, and no other[.]" (Id., subd. (4)(b).)
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The law takes a different tack in defining slander. "Slander" is
defined specifically in the governing statute as "a false and
unprivileged publication, orally uttered, and also communications by
radio or any mechanical or other means which: [P] 1. Charges any
person with crime, or with having been indicted, convicted, or
punished for crime; [P] 2. Imputes in him the present existence of an
infectious, contagious, or loathsome disease; [P] 3. Tends directly to
injure him in respect to his office, profession, trade or business,
either by imputing to him general disqualification in those respects
which the office or other occupation peculiarly requires, or by
imputing something with reference to his office, profession, trade, or
business that has a natural tendency to lessen its profits; [P] 4.
Imputes to him impotence or a want of chastity; or [P] 5. Which, by
natural consequence, causes actual damage." (Civ. Code, § 46.)
Statements which come within the first four categories are said to be
slander per se. (5 Witkin, Summary of Cal. Law, supra, Torts, § 490,
p. 577.) Defamatory statements outside the first four categories are
actionable if, as in the case of libel per [*23] quod, the plaintiff
pleads and proves special damages. (Id., § 489, p. 577; Savage v.
Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 447.) n7
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n7 As explained by one treatise author: "Misunderstanding [often
arises] from the fact that the term 'per se' usually has a
significance in slander entirely different from its meaning in libel.
As it relates to slander it involves the determination of whether the
statement falls within one of the four specific established slander
per se categories. But 'per se' as it relates to libel usually
requires a determination as to whether the communication's defamatory
meaning is apparent from the statement itself (in which case it is
libel per se) or whether it may be understood only with reference to
extrinsic facts known by the recipient of the communication (in which
case it is not libel per se). [P] Thus the term 'slander per se' has
to do with the nature of the charges made while the term 'libel per
se,' in most jurisdictions, relates to whether the statement is
injurious to reputation on its face." (Sack, Libel, Slander, and
Related Problems (1980) § II.7.1, p. 94.)
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III
With these principles in mind, we turn to the issue of whether the
record reflects that Snyder presented sufficient evidence to support
the elements of a defamation claim, sufficient to defeat the motion to
strike. There can be little doubt that accusing someone of molesting
his own child and of making her available for molestation by others
constitutes libel per se and slander per se. The accusation charges
the accused with a crime for purposes of Civil Code section 46 and
exposes him to "hatred, contempt, ridicule, or obloquy," and/or would
cause him to be "shunned or avoided" for purposes of Civil Code
section 45. The same is true of the accusation of money laundering.
The accusation of having taken part in a satanic ritual alone is
somewhat different. It does not obviously meet any of the slander per
se categories. (See Tuman v. Genesis Associates (E.D.Pa. 1996) 935 F.
Supp. 1375, 1392-1393 [charge of being a member of a satanic cult not
slander per se].) Moreover, as numerous courts have recognized,
society's mores change over time, so that a charge that is considered
quite offensive by a past generation may have no such connotation as
society [*25] evolves. (See, e.g., Chuy v. Philadelphia Eagles
Football Club (3d Cir. 1979) 595 F.2d 1265, 1281-1282 [where plaintiff
was erroneously described as suffering from a malignancy, court said:
"In this modern era, with its greater medical knowledge and societal
concern with health and medical care, diseases and medical treatment
are discussed candidly and freely in the home, in social circles, and
in the media. . . . The public's reaction today to a victim of cancer
is usually one of sympathy rather than scorn, support and not
rejection"]; Buckley v. Littell (2d Cir. 1976) 539 F.2d 882, 890-895
[referring to political commentator as a "fascist" is not actionable];
Moricoli v. Schwartz (1977) 46 Ill. App. 3d 481 [361 N.E.2d 74, 76, 5
Ill. Dec. 74] [calling someone a name meaning homosexual is not
slander per se].) Nevertheless, although society has become
increasingly accepting of offbeat religions, we believe the charge of
devil worshiping retains its status as libelous per se within the
meaning of Civil Code section 45, that is being associated with the
practice would expose a person to "hatred, contempt, ridicule, or
obloquy, [*26] " or would cause him to be "shunned or avoided" by
society in general. (See Procter & Gamble v. Amway Corp. (5th Cir.
2001) 242 F.3d 539, 542, fn. 2 [corporation brought suit against
competitor for defamation and unfair competition after competitor's
sales associates spread rumor that corporation was associated with the
"church of Satan"].) More importantly, the e-mail did not simply state
that Snyder participated in a satanic ritual. It charged direct
involvement in ritualistic sexual abuse of a child. Coupling a charge
of devil worship with sexual abuse of a child is certainly defamatory
per se under both section 45 and section 46 of the Civil Code.
The premature report of someone's death, on the other hand, has been
specifically held not to constitute defamation. (Cardiff v. Brooklyn
Eagle (1947) 190 Misc. 730, 75 N.Y.S.2d 222, 223-224; Cohen v. New
York Times Co. (1912) 153 A.D. 242, 138 N.Y.S. 206, 210.) "Such
publication may be unpleasant, it may annoy or irk the subject
thereof, it may subject him to joke or jest or to banter from those
who knew him, . . . even to the extent of affecting his feelings, but
this in itself is [*27] not enough." (Cohen v. New York Times Co.,
supra, at p. 210.) The bald allegation that a public official provided
parking passes to someone who turned out to be a notorious murderer
may be defamatory. But its sting depends on the existence of other
facts or other circumstances, such as whether the accused had
knowledge of the criminal activity at the time or whether the act of
giving out parking passes to a private party was illegal or improper.
Where the statement is defamatory only in relation to extrinsic facts,
it is not defamatory per se and special damages must be pleaded and
proven. Snyder made no attempt to establish special damages, so those
statements must be set aside, and our attention focused on the
statements which clearly were defamatory per se for purposes of our
analysis of whether Snyder met his burden under section 425.16.
A
Appellant contends that Snyder's showing was inadequate for purposes
of the motion to strike because it failed to establish the existence
of malice and because Snyder is libel-proof in the subject areas
discussed in the e-mail.
The rule regarding malice was summarized by the court in Robertson v.
Rodriguez (1995) 36 Cal.App.4th 347, 357: [*28] "In the landmark
decision of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 11 L.
Ed. 2d 686, 84 S. Ct. 710 . . ., the Supreme Court held a public
official may not recover damages for a defamatory falsehood relating
to official conduct unless it is proved the statement was made with
'"actual malice,"' that is, with knowledge it was false or with
reckless disregard of whether it was false. [Citation.]" The Robertson
decision went on to describe the court's responsibility in overseeing
that malice is supported by the record: "New York Times Co. further
declared that in order to ensure libel judgments do not run afoul of
constitutional principles, the appellate court must independently
examine the statements in issue and the circumstances under which they
are made against the backdrop of the entire record. [Citations.] [P]
This principle of independent review was reaffirmed in Bose Corp. v.
Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 80 L. Ed. 2d 502,
104 S. Ct. 1949 . . . . 'The requirement of independent appellate
review reiterated in New York Times Co. v. Sullivan is a rule of
federal constitutional law. . . . It reflects [*29] a deeply held
conviction that judges . . . must exercise such review in order to
preserve the precious liberties established and ordained by the
Constitution. The question whether the evidence in the record in a
defamation case is of the convincing clarity required to strip the
utterance of First Amendment protection is not merely a question for
the trier of fact. Judges, as expositors of the Constitution, must
independently decide whether the evidence in the record is sufficient
to cross the constitutional threshold that bars the entry of any
judgment that is not supported by clear and convincing proof of
"actual malice."'" (Robertson v. Rodriguez, supra, 36 Cal.App.4th at
pp. 357-358.)
Snyder disputes that he is a public figure or public official, having
not been a Los Angeles City council member for many years. "The
characterization of a plaintiff as a public figure 'may rest on either
of two alternative bases. In some instances an individual may achieve
such pervasive fame or notoriety that he becomes a public figure for
all purposes and in all contexts. More commonly, an individual
voluntarily injects himself or is drawn into a particular public
controversy [*30] and thereby becomes a public figure for a limited
range of issues.'" (Copp v. Paxton (1996) 45 Cal.App.4th 829, 845,
quoting Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351, 41 L.
Ed. 2d 789, 94 S. Ct. 2997.)
Snyder cannot deny he was a public figure at one time, but contends
that the passage of time, namely the 15 years since he held public
office, n8 has put an end to his prior status. The general rule is "an
individual who was once a public figure with respect to a controversy
remains a public figure for latter commentary on that controversy."
(Milsap v. Journal/Sentinel, Inc. (7th Cir. 1996) 100 F.3d 1265, 1269,
and cases cited therein.) Plaintiff in Milsap, a former head of an
anti-poverty program, objected to statements made in a newspaper
column 25 years after the fact intimating that he had committed
financial irregularities and reneged on paying debts owed. Plaintiff
contended that the passage of time and his absence from the area
transformed him into a private citizen who did not need to prove
malice to prevail on his claim. The Seventh Circuit rejected that
contention: "A person who injects himself into public [*31]
controversy assumes the risk of negative public comment on his role in
the controversy, both contemporaneously and into the future.
[Citations.] In [plaintiff's] case, the risk includes comment on his
financial responsibility during his time in the public eye.
Accordingly, [plaintiff] must be considered a public figure with
respect to financial dealings at that prior time." (Id. at p. 1270;
see also Meeropol v. Nizer (2d Cir. 1977) 560 F.2d 1061, 1066 [court
assumed sub silentio that the children of Julius and Ethel Rosenberg
were general purpose public figures 20 years after the fact because
they were cast into the limelight during their parents' trial];
Partington v. Bugliosi (9th Cir. 1995) 56 F.3d 1147, 1152, fn. 8 ["It
appears that every court of appeals that has specifically decided this
question has concluded that the passage of time does not alter an
individual's status as a limited purpose public figure"].)
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n8 We note that it has been a considerably lesser time since Snyder
was in the news for violation of election and campaign funding laws as
a lobbyist.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*32]
Snyder stresses that he had no knowledge of or involvement in the La
Vina Project, the titular subject of the e-mail exchange. This misses
the point. The discussion of Snyder in the e-mail was not focused on
the La Vina Project. It accused Snyder of laundering campaign funds
for "these people," either referring to the developers involved in the
La Vina Project or developers in general, but clearly meant to convey
that this had occurred in the past since the e-mail further stated
that Snyder "died a couple of years ago . . . ." As we have seen,
Snyder was convicted of money laundering and sentenced to jail in
1997. The remainder of the discussion concerning Snyder primarily
centered on incidents that allegedly occurred while Snyder was a
council member and that would have had impact on his qualifications
for office had the charges been substantiated.
As discussed in the recent federal case of Peterson v. New York Times
Co. (Utah 2000) 106 F. Supp. 2d 1227, the fact that the statements
made were or may not have been true is of no moment in the
determination of whether they were related to official conduct for
purposes of the public figure analysis. In Peterson [*33] , there was
no question of the information being true because the defendant
newspaper had concededly identified the wrong Utah politician as
having been involved in the scandal over bribery of Olympic officials.
The court was faced with "the task of determining whether the alleged
defamation relates to [plaintiff] Mr. Peterson's official conduct when
the defamatory statement is the juxtaposition of [his] photograph with
an article about someone else with the same name." (Id. at p. 1231.)
Plaintiff argued that "the statements linking him with the [Salt Lake
Olympic] Bid Committee bribery scandal cannot pertain to his official
conduct because the false statements were not even about him -- they
were about a different Craig Peterson." (Id. at pp. 1231-1232.) The
court found "no support in the law for such a proposition. . . . While
Mr. Peterson claims that the story about the Bid Committee scandal did
not relate to him and therefore did not pertain to his official
conduct as a public official, that analytical framework is simply
incorrect. Because of the mistake regarding Mr. Peterson's identity,
the story purported to concern him, and the alleged [*34]
improprieties discussed in the story occurred during the time that Mr.
Peterson held the position of Senate Majority Leader. Consequently,
the defamation related to his official conduct. The fact that the
defamation arose from associating his photo with a story about the
alleged improprieties of another Craig Peterson . . . is immaterial."
(Id. at p. 1232.)
The same analysis applies here. Some of the defamatory statements in
the e-mail had to do with Snyder's alleged conduct as a council member
and some had to do with the charges against him for molestation and
money laundering. With respect to comments made in these areas Snyder
was, at the very least, a limited purpose public figure despite his
long absence from public office. The statements may have no basis in
reality, as Snyder contends, but truth is not a consideration in the
determination of whether a person is or is not a limited public figure
and whether the statements at issue do or do not relate to the area of
his renown. Therefore, we agree with the trial court that there was a
need to establish malice to avoid the anti-SLAPP motion to strike.
B
The United States Supreme Court has set the bar [*35] high for
establishing malice: "When . . . the plaintiff is a public figure, he
cannot recover unless he proves by clear and convincing evidence that
the defendant published the defamatory statement with actual malice,
i.e., with 'knowledge that it was false or with reckless disregard of
whether it was false or not.' New York Times Co. v. Sullivan, 376 U.S.
254, 279-280 [11 L. Ed. 2d 686, 84 S. Ct. 710] (1964). Mere negligence
does not suffice. Rather, the plaintiff must demonstrate that the
author 'in fact entertained serious doubts as to the truth of his
publication,' St. Amant v. Thompson, 390 U.S. 727, 731 [20 L. Ed. 2d
262, 88 S. Ct. 1323] (1968), or acted with a 'high degree of awareness
of . . . probable falsity,' Garrison v. Louisiana, 379 U.S. 64 [74, 13
L. Ed. 2d 125, 85 S. Ct. 209] (1964)." (Masson v. New Yorker Magazine,
Inc. (1991) 501 U.S. 496, 510, 115 L. Ed. 2d 447, 111 S. Ct. 2419.)
As explained in Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344,
1365, "in determining whether a defendant has subjective knowledge or
doubt about the accuracy of a statement, [*36] the Supreme Court has
repeatedly eschewed reasoning based on what a defendant 'must have
realized.' [Citations.] Such reasoning may be adequate when an alleged
libel purports 'to be an eyewitness or other direct account of events
that speak for themselves' [citation] . . . . However, such deductive
analysis is inadequate when the libel is based on choices the
defendant has made in describing what others have written or said . .
. or . . . drawing conclusions from extensive or complex research.
[Citation.] While in hindsight, or with the benefit of other evidence,
it might be perfectly obvious to a trier of fact that a particular
description of events or conclusion is erroneous, in most cases the
obviousness of the defendant's error will not create any convincing
inference of doubt on his or her part."
Snyder did not contend that appellant had actual knowledge that his
statements were untrue, but sought to show that the statements were
made in reckless disregard of their truth or falsity. In Copp v.
Paxton, supra, 45 Cal.App.4th at page 847, the court clarified the
meaning of reckless disregard in this context: "'Reckless conduct is
not measured by whether a [*37] reasonably prudent man would have
published, or would have investigated before publishing. There must be
sufficient evidence to permit the conclusion that the defendant in
fact entertained serious doubts as to the truth of his publication.
Publishing with such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice.' Although the issue turns on
the subjective good faith of the defendant, the plaintiff may attempt
to prove reckless disregard for truth by circumstantial evidence, 'A
failure to investigate [citation], anger and hostility toward the
plaintiff [citation], reliance upon sources known to be unreliable
[citations], or known to be biased against the plaintiff [citations]
-- such factors may, in an appropriate case, indicate that the
publisher himself had serious doubts regarding the truth of his
publication.'"
Where the issue is whether the defendant could or should have believed
accusations heard from a suspicious source, proof that the defendant
heard of similar accusations of misconduct from reputable parties can
help him establish that he had no reason to doubt the defamatory
charges he repeated. In McCoy v. Hearst Corp. (1986) 42 Cal.3d 835,
231 Cal. Rptr. 518, 727 P.2d 711, [*38] where the libel complaint was
based on a newspaper's publication of a convicted prisoner's affidavit
of police and district attorney misconduct, the court found
significance in the fact that defendants had learned "from several
sources that [plaintiffs] had been accused by others of misconduct and
questionable practices" and held that whether or not the other charges
of misconduct were true "what is dispositive is that [defendants]
relied upon these ostensibly credible sources in forming a judgment
that [the prisoner's] claims might have some validity." (Id. at p.
867.)
Here, appellant's declaration established that he heard about the
daughter's molestation charge and the money laundering charge from
responsible media sources. This was substantiated by the numerous Los
Angeles Times articles placed into evidence. Snyder protests that
appellant failed to establish that he read the specific newspaper
articles offered into evidence prior to sending his e-mail. A valid
inference can be drawn from the newspaper articles put before the
court and Snyder's prominence as a Los Angeles City council member
that these charges were reported in newspapers, magazines, and [*39]
the electronic media throughout the area. When charges are as widely
disseminated as these clearly were we see no reason for the defendant
to prove the precise source of his information.
With respect to the charge of money laundering, Snyder denies
"participating in any form of illegal donations or campaign
contributions regarding Supervisor Antonovich. . . ." (Italics added.)
Snyder does not deny, because he cannot, that he was convicted of
money laundering with respect to other area politicians. "'It is well
settled that a defendant is not required in an action of libel to
justify every word of the alleged defamatory matter; it is sufficient
if the substance, the gist, the sting of the libelous charge be
justified, and if the gist of the charge be established by the
evidence the defendant has made his case. . . . "If the substantial
imputations be proved true, a slight inaccuracy in the details will
not prevent a judgment for the defendant, if the inaccuracy does not
change the complexion of the affair so as to affect the reader of the
article differently than the actual truth would."'" (Handelsman v. San
Francisco Chronicle (1970) 11 Cal. App. 3d 381, 387, 90 Cal. Rptr.
188, [*40] quoting Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.
App. 2d 224, 227-228, 40 P.2d 520; accord, Hayward v. Watsonville
Register-Pajaronian and Sun (1968) 265 Cal. App. 2d 255, 261-262, 71
Cal. Rptr. 295.) In Handelsman, the report had said that plaintiffs
were being charged with theft, whereas the truth was a civil complaint
for conversion had been filed against them. In Hayward, the accusation
was that plaintiff had served a term in prison on a check charge, when
in fact he had been sentenced to probation. In both cases, the courts
held that the sting or gist of the report was accurate.
In Robertson v. Rodriguez, supra, 36 Cal.App.4th 347, the court
analyzed a similar case in terms of lack of malice. The defendants
therein had sent out a mailer accusing the plaintiff, a city council
member fighting a recall petition, of having been fined for running an
illegal business out of his home. The truth was that a criminal
prosecution had been brought against the council member for violation
of city zoning laws, but the matter had been settled by a compromise
in which the council member did not admit wrongdoing and paid the
[*41] city $ 1,000 as "'reimbursement . . . of investigation and
enforcement costs in connection with [the] action.'" (Id. at p. 359.)
Defendants had been advised by the city manager and city clerk about
the prosecution and had been told about the councilman's $ 1,000
payment and that the council member "'had agreed to move his business
outside the City . . . .'" (Id. at p. 353.) The court held that
because the statements in the mailer were substantially in accord with
the truth and what the city manager had reported, the plaintiff could
not establish that the defendants acted with actual malice. (Id. at
pp. 359- 360.)
Both the Robertson approach and the Handelsman and Hayward analysis
support a potential defense to the e-mail's statements regarding money
laundering. Snyder was convicted on multiple counts of money
laundering with regard to donations to various Los Angeles area
political campaigns. The fact that the conviction did not involve the
specific politician mentioned in the e-mail does not alter the gist or
sting insofar as Snyder is concerned. Moreover, the similarity between
the statement and the truth as reported [*42] in the media strongly
negates the existence of malice.
The same cannot be said, however, of the statements in the e-mail
regarding molestation. The newspaper reports established that Snyder's
wife and then nine-year-old daughter charged him with molesting the
daughter "several times" when she was very young. Some of these
reports indicated that these charges were corroborated by physical
evidence of abuse and found to be substantiated after a lengthy
hearing before a dependency court, after which the court proceeded to
order the child removed from her home and placed into foster care. Had
appellant limited himself to repeating these charges and findings,
there may have been a basis for a good faith defense. Instead,
appellant took the matter to a new level, contending in detail that
the sexual abuse took place during a "Satanic mass" where "Snyder was
officiating" and that the charges against Snyder involved allowing his
daughter to be "gang banged by fellow Satanists for YEARS." We cannot
agree with appellant that the gist or sting of being labeled a
satanist who allows his child to be raped by numerous fellow devil
worshipers over the course of many years is no worse than the gist
[*43] or sting of being labeled a parental pedophile.
Nor can we agree that the evidence established lack of malice as a
matter of law. Unlike the reports of molestation found in the media,
the report of satanic child abuse came second hand from one Mark
Alexander, a friend of appellant's, who reportedly was repeating a
story from his "friend" who had "assisted a private investigator in
doing research on the Hillside Strangler case." Although appellant may
be able to convince a trier of fact otherwise, we are unwilling to
hold that this type of "friend of a friend" gossip can establish lack
of malice as a matter of law. For this reason, we must affirm the
trial court's decision denying the motion to strike Snyder's FAC.
IV
We now address the motion to strike the Jenkins complaint. Jenkins
disputes her status as a limited public figure because "she did not
seek the limelight [or seek to] attract media attention." A person can
become a limited purpose public figure when he or she achieves a
"special prominence" in a debate over a matter of public interest.
(Waldbaum v. Fairchild Publications, Inc. (D.C.Cir. 1980) 201 U.S.
App. D.C. 301, 627 F.2d 1287, 1298.) [*44] "The plaintiff either must
have been purposely trying to influence the outcome or could
realistically have been expected, because of his position in the
controversy, to have an impact on its resolution." (Ibid.; see also
Reuber v. Food Chemical News, Inc. (4th Cir. 1991) 925 F.2d 703, 709
(en banc) ["Even 'involuntary' participants can be public figures when
they choose a course of conduct which invites public attention"].)
In 1985, when Jenkins came to prominence, there was an ongoing
controversy over whether her father, a longtime city council member,
should retain his post. This was an obvious matter of public
significance to the people of Los Angeles. While we hesitate to say
that Jenkins voluntarily or "purposely" put herself in the center of
the controversy due to her tender age at the time, she clearly meets
the alternate test: because of her position she had a significant
impact on the debate. Indeed, the newspaper reports indicate that as
soon as her charges of molestation and the findings of the dependency
court became public, Snyder resigned his office. Moreover, as we have
discussed, the mere passage of years does not necessarily place a
controversy [*45] out of reach of discussion or transform a limited
purpose public figure into a private person. Snyder's resignation is a
matter of historical significance to the citizenry of Los Angeles, and
it is to be expected that interested members of the public will
discuss both it and the surrounding circumstances freely among
themselves. That this is painful for Jenkins, we have no doubt, but
she cannot dampen legitimate public debate merely because the topic is
unpleasant for her personally.
Appellant contends that the statements made concerning Jenkins were
not defamatory. It is true that the e-mail's contents, read strictly,
do no more than describe her as having been the victim of a horrific
crime. As we have seen, the definition of slander per se requires a
false statement that "charges [the claimant] with crime, or with
having been indicted, convicted, or punished for crime"; "imputes in
him [or her] the present existence of an infectious, contagious, or
loathsome disease; "tends directly to injure him [or her] in respect
to his office, profession, trade or business, either by imputing to
him general disqualification in those respects which the office or
other occupation peculiarly [*46] requires, or by imputing something
with reference to his office, profession, trade, or business that has
a natural tendency to lessen its profits"; or "imputes to him [or her]
impotence or a want of chastity . . . ." (Civ. Code, § 46, subds.
1-4.) Jenkins argued below that the statement implicated her
"chastity." She does not repeat the argument in her brief on appeal. A
legal definition of "chaste" is someone who has never voluntarily
engaged in improper sexual intercourse. (Black's Law Dict. (5th ed.
1979) p. 214, col. 2.) A victim of a sex crime is not considered
unchaste. (See, e.g., Rocky Mountain News Printing Co. v. Fridborn
(Colo. 1909) 46 Colo. 440, 104 P. 956, 960 [where newspaper falsely
reported that plaintiff, a victim of a sexual assault, had given
birth, court held: "An unmarried female . . . who has been carnally
known against her will, and as a result thereof becomes a mother, has
not thereby lost her virtue nor her chastity"].)
As we have also seen, however, the statutory definition of libel is
not as specific or limited as the definition of slander, and a false
written statement may constitute libel per se whenever it "exposes any
person [*47] to hatred, contempt, ridicule, or obloquy, or . . .
causes him to be shunned or avoided, or . . . has a tendency to injure
him in his occupation." (Civ. Code, § 45.) As explained in one
prominent treatise: "A defamatory communication usually has been
defined as one which tends to hold the plaintiff up to hatred,
contempt or ridicule, or to cause him to be shunned or avoided. This
definition is certainly too narrow, since an imputation of insanity,
or poverty, or an assertion that a woman has been raped, which would
be likely to arouse only pity or sympathy in the minds of all decent
people, have been held to be defamatory. Defamation is rather that
which tends to injure 'reputation' in the popular sense; to diminish
the esteem, respect, goodwill or confidence in which the plaintiff is
held, or to excite adverse, derogatory or unpleasant feelings or
opinions against him [or her]." (Prosser & Keaton, Torts (5th ed.
1984) Defamation, § 111, p. 773, fns. omitted; see also 2 Harper et
al., The Law of Torts (2d ed. 1986), Defamation, § 5.2, p. 41, fns.
omitted ["Any false factual representation or portrayal of the
plaintiff that tends to hold him up to ridicule or otherwise expose
[*48] him to extreme humiliation or embarrassment may be defamatory
even though it only arouses sympathy or pity for the victim, as a
statement that a woman has been raped or that a person is
poverty-stricken"]; Katapodis v. Brooklyn Spectator (1941) 287 N.Y.
17, 20 [38 N.E.2d 112, 113] ["It is reasonably clear . . . that in
some cases it may be a libel if the plaintiff has been written up as
an object of pity. [Citation.] The reason is that in libel the matter
is defamatory not only if it brings a party into hatred, ridicule or
contempt by asserting some moral discredit upon his part, but also if
it tends to make him be shunned or avoided, although it imputes no
moral turpitude to him. [Citations.]".) While there may come a day
when victims of sexual crimes do not have to fear ridicule or contempt
any more than the victims of other types of crimes, n9 we believe that
there is still a strong likelihood that someone identified as such
would still face disapprobation from many in the community and suffer
humiliation.
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n9 See Mead v. True Citizen, Inc. (1992) 203 Ga.App. 361 [417 S.E.2d
16, 17] (holding that misidentification of claimant as victim of the
crime of burglary was not defamatory).
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*49]
Appellant references the fact that Jenkins herself claimed to have
been sexually molested as a child in a widely publicized hearing,
potentially giving rise to the defenses that the sting or gist of the
statement was true or that appellant held a good faith belief that the
statements were true. As we said with respect to Snyder's complaint,
because appellant did not limit himself to repeating news reports from
reliable sources, but added a new twist to the story based on a
version of events obtained from a friend of a friend, he cannot rely
on those defenses at this juncture. The trier of fact may ultimately
agree that he acted in subjective good faith or that Jenkins'
reputation was damaged by her own actions long prior to the depiction
in the e-mail, but these decisions cannot be made in the context of an
anti-SLAPP motion when countervailing evidence exists.
Appellant points out that he did not identify Jenkins in the e-mail
and that the e- mail was circulated to only three people, one of whom
(Dudley) did not read it and another of whom (McPhee) did not know who
"Snyder's daughter" was or feel any disapprobation toward her. A
similar issue arose in Semple v. Andrews (1938) 27 Cal. App. 2d 228,
81 P.2d 203, [*50] wherein the defendant made a derogatory statement
concerning evangelist Aimee Semple McPherson's "daughter." (Id. at p.
230.) The defendant argued on appeal that the complaint failed to
state a cause of action "for the reason that in the allegedly
slanderous statement attributed to him the name of the [plaintiff] was
not specifically mentioned . . . ." (Id. at p. 231.) The appellate
court disagreed, citing Code of Civil Procedure section 460, which
provided then, as it does now: "'In an action for libel or slander it
is not necessary to state in the complaint any extrinsic facts for the
purpose of showing the application to the plaintiff of the defamatory
matter out of which the cause of action arose; but it is sufficient to
state, generally, that the same was published or spoken concerning the
plaintiff; and if such allegation be controverted, the plaintiff must
establish on the trial that it was so published or spoken.'" (Semple
v. Andrews, supra, at p. 233.) Because the plaintiff had alleged that
she "was the only daughter of Aimee Semple McPherson"; that "the
publications were meant and intended to mean that plaintiff had [*51]
intimated, threatened, blackmailed, and attempted to blackmail, her
mother, and that plaintiff was destroying or attempting to destroy
[her mother's religious organization]"; and that "persons who heard or
read the claimed slanderous words generally so understood them," the
court concluded that "the complaint stated a cause of action for
slander of and concerning the plaintiff." (Id. at pp. 233, 234.)
Other California courts have expressed the same sentiment. In
DiGiorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal. App. 2d 560, 569-570,
the court stated: "There is no requirement that the person defamed be
mentioned by name. [Citation.] It is sufficient if from the evidence
the jury can infer that the defamatory statement applies to the
plaintiff[] . . . [and ] if the publication points to the plaintiff by
description or circumstance tending to identify him. [Citation.]" In
Dewing v. Blodgett (1932) 124 Cal.App. 100, 11 P.2d 1105, where a
series of newspaper articles contained defamatory remarks about "the
court reporter" of a particular county, and plaintiff was the only
person who met that description, the court held: "The fact [*52] that
the name of the plaintiff was not contained in the libelous articles,
does not deprive the plaintiff of his remedy, when those articles
without using the plaintiff's name, gave a description which was
capable of directing attention to him, and when, as here, it was
alleged and . . . proved that readers of the articles understood them
as referring to the plaintiff." (Id. at p. 105; accord, Prosser &
Keaton, Torts, supra, § 111, p. 783, fns. omitted ["A publication may
clearly be defamatory as to somebody, and yet on its face make no
reference to the individual plaintiff. . . . [Plaintiff] need not . .
. be named, and the reference may be an indirect one, with the
identification depending upon circumstances known to the hearers, and
it is not necessary that every listener understand it, so long as
there are some who reasonably do"]; 2 Harper et al., The Law of Torts,
supra, Defamation, § 5.7, p. 57, fns. omitted ["Defamatory matter must
be applicable to someone and that person must be the plaintiff. It is
not necessary that the whole world know who was intended; it is enough
that some person or persons recognized the plaintiff as the person
defamed. [*53] It is not even necessary that the plaintiff be named.
Plaintiff may be adequately identified by various descriptions or
associations so as to be reasonably recognizable as the one to whom
the defamatory publication refers"].)
The record established that Jenkins was Snyder's only daughter and
that she accused him of molestation in 1985. It further established
that the two were well-known in local political circles because of
Snyder's long-time involvement in area politics ending with his sudden
resignation in the aftermath of Jenkins's charges. It is therefore
reasonable to presume that the reference to "Snyder's daughter" in the
e-mail was to Jenkins, and that at least one of the recipients
understood it as such. The fact that publication was limited to but a
few and even fewer were aware of the identity of the person allegedly
defamed has an unarguable impact on potential damages. (See Bonner v.
Los Angeles Examiner (1936) 17 Cal. App. 2d 458, 463, 62 P.2d 427.) It
is not, however, grounds for outright dismissal due to the
longstanding rules permitting claimants to pursue a defamation suit
for the sole purpose of obtaining nominal damages and vindicating his
or [*54] her reputation. n10
- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -
n10 Because we affirm the court's orders on alternate grounds, we do
not reach the issue raised by respondents for the first time at oral
argument, that the motions to strike should have been denied as
untimely.
- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - -
-DISPOSITION
The orders denying the motions to strike Snyder's first amended
complaint and Jenkins's complaint are affirmed.
CURRY, J.
We concur:
EPSTEIN, Acting P. J.
HASTINGS, J.