TAUS v. LOFTUS
Filed 2/26/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendants and Appellants. ) Super. Ct. No. FCS021557
__________________________________ )
Plaintiff in this action, Nicole Taus, was the unnamed subject of a case study set forth in a prominent scholarly article describing her apparent recovery of a long-repressed memory of childhood abuse. (The article referred to plaintiff as Jane Doe.) Defendants are the authors and publishers of two subsequent articles that, in questioning the basic premise advanced by the initial article, disclosed various aspects of plaintiffs family background and personal life but did not disclose her identity. (Like the initial article, defendants articles referred to plaintiff as Jane Doe.)
Shortly after the later articles were published, plaintiff filed the present action against defendants, challenging defendants activities in investigating, publishing, and thereafter publicly discussing their articles and investigation. The complaint asserted that defendants improperly had invaded plaintiffs privacy and committed other tortious conduct by investigating plaintiffs background and discovering and disclosing information concerning her private life without her consent.
Defendants responded by filing special motions to strike the complaint pursuant to Californias anti-SLAPP statute (Code Civ. Proc., 425.16),[1]asserting that the complaint sought to impose liability upon them for actions that were undertaken in furtherance of their constitutional right of free speech. The trial court denied the motions in large part, concluding that the bulk of plaintiffs claims should be permitted to go forward. On appeal, the Court of Appeal held that most of the claims set forth in the complaint should be dismissed under the anti-SLAPP statute, but also concluded that the suit could proceed with regard to four aspects of defendants conduct that were challenged in the complaint.
Following the Court of Appeals decision, only defendants sought review in this court. The petition for review contended that although the Court of Appeal was correct in dismissing the bulk of plaintiffs claims, the appellate court had erred in permitting any aspect of the action to go forward. We granted review to consider whether the Court of Appeal correctly determined that plaintiffs suit could proceed as to the four points challenged by defendants.
As explained hereafter, we conclude that the Court of Appeal erred with respect to three of those claims, but that it correctly determined that dismissal is not warranted at this juncture with regard to one of the claims advanced by plaintiff. Accordingly, we shall reverse in part and affirm in part the judgment rendered by the Court of Appeal.
I
The relevant facts in this case are set forth in some detail in the Court of Appeals opinion in this matter, and because neither party has taken issue with that courts statement of facts, we shall adopt that portion of the Court of Appeals opinion, with minor supplementation and stylistic changes.
A. Background Published Articles
The dispute between these parties arises out of the publication of three articles that appeared in two scientific journals between May 1997 and August 2002.
1. The 1997 Child Maltreatment Article
The May 1997 issue of Child Maltreatment, a scientific journal published by the American Professional Society on the Abuse of Children, contains an essay, authored by David Corwin and Ema Olafson,[2]entitled Videotaped Discovery of a Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison With a Childhood Interview Videotaped 11 Years Before (2 Child Maltreatment 91 [hereafter the Child Maltreatment article]).
The Child Maltreatment article contains the following summary of its contents: This article presents the history, verbatim transcripts, and behavioral observations of a childs disclosure of sexual abuse to Dr. David Corwin in 1984 and the spontaneous return of that reportedly unrecallable memory during an interview between the same individual, now a young adult, and Dr. Corwin 11 years later. Both interviews were videotape recorded. The significance, limitations, and clinical implications of this unique case study are discussed. Five commentaries by researchers from differing empirical perspectives who have reviewed these videotape-recorded interviews follow this article. (Child Maltreatment article, supra, at p. 91.)
The young woman who is the subject of the Child Maltreatmentarticle was referred to throughout the article as Jane Doe (hereafter sometimes just Jane), and all the names of persons and places relating to her story were changed with the exception of the identity of Corwin, who conducted the interviews. According to the article, Corwin became involved in Janes case in 1984 after Janes father accused her mother of physically and sexually abusing her. The allegations were made in the context of a custody dispute, and Corwin was appointed by the court to conduct an evaluation.
The Child Maltreatment article contains excerpts from three interviews conducted by Corwin in 1984 when Jane was six years of age. During each interview, Jane told Corwin that her mother had rubbed her finger inside Janes vagina while giving her a bath. The specific excerpts that are repeated in the article include Jane reporting that her mother first had done this to her when she was three, that these actions hurt, and that her mother had warned she would do something to Jane if Jane told her father what her mother had done. During the third interview, Jane consistently maintained that nobody told her to say these things about her mother and that she was not lying. At one point, Corwin inquired whether Janes mother had said anything when she placed her finger there. Jane reported that her mother asked: That feel good?, and that Jane had replied no. Jane also said that this had happened on more than 20 occasions and closer to 99 during the time she lived with her mother. (Child Maltreatment article, supra, at pp. 94, 100-101.)
The excerpts from the 1984 interviews are interspersed with analysis and with Corwins conclusions, first drawn and testified to in 1984, that: (1) Jane was physically and sexually abused by her mother, and (2) Janes mother falsely accused Janes father of abusing Jane and attempted to coerce Jane into verifying the false accusation. The authors of the Child Maltreatment article reported that their article relied upon background sources in addition to the 1984 interviews, including reports by Child Protective Services and the police, court files and decisions pertaining to the parents divorce and contentious custody battle, and reports by other evaluators and therapists. According to the article, Janes statements to Corwin were consistent with statements she previously made to other evaluators. Janes prior reports of inappropriate behavior by her mother included striking her on several parts of her body, burning her feet on a hot stove, and invading and hurting her genitals and anus with her hands. (Child Maltreatment article, supra, at p. 95.)
The Child Maltreatment article also contains a transcript of an interview of Jane conducted by Corwin on October 15, 1995, when Jane was 17 years of age. According to the article, the 1995 interview was arranged after Corwin contacted Jane and her father to obtain their consent to continue to use the 1984 videotaped interviews for professional education, and learned that Jane could not remember the events that were the subject of those earlier interviews and wanted to view the 1984 videotapes. (Child Maltreatment article, supra, at p. 98.)
Janes foster mother accompanied her to the interview with Corwin, who agreed to show the two of them the videotapes of the 1984 interviews. (A local therapist also was present during the interview.) At the outset of the 1995 interview and before viewing the 1984 videotapes, Jane stated that she did remember statements and allegations she had made during those interviews but that [i]ts the memory of if what I said was true that Im having a problem with. (Child Maltreatment article, supra, at p. 104.) Corwin asked Jane to share what she could recall about that period of time concerning the 1984 interviews and the things she may have said then. Jane described the room where she was interviewed in 1984 and a sweatshirt she may have worn, and began to recount some of the allegations she had made. She recalled accusing her mother of abusing her by burning her feet on a stove but stated she could not remember whether that was in fact how her feet were burned. Jane told Corwin that she recently had been in contact with her mother, who denied all the allegations of abuse. When Corwin focused the discussion on sexual abuse, the following occurred:
DC[3] Okay. Do you remember anything about the concerns about possible sexual abuse?
JD: No. (Eye closure) I mean, I remember that was part of the accusation, but I dont remember anything (inhales audibly and closes eyes) wait a minute, yeah, I do.
DC: What do you remember?
JD: (Pauses) Oh my gosh, thats really, (. . . Close[s] eyes and holds eyes) really weird. (Looks at foster mother) I accused her of taking pictures (starts to cry and foster mother puts hand on Janes shoulder) of me and my brother and selling them and I accused her of when she was bathing me or whatever, hurting me, and thats
DC: As youre saying that to me, you remember having said those things or you remember having experienced those things?
JD: I remember saying about the pictures, I remember it happening, that she hurt me.
DC: Hurt you, where? How?
JD: She hurt me. She
Therapist: Theres tissues to your right.
JD: You see. I dont know if it was an intentional hurt she was bathing me, and I only remember one instance, and she hurt me, she put her fingers too far where she shouldnt have, and she hurt me. But I dont know if it was intentional, or if it was just accidental.
DC: Can you be more specific because I ?
JD: I know what was said on the tape. On the tape it was said that she put her fingers in my vagina. And she hurt me.
DC: Okay. Is that what you recall or
JD: Thats what I recall. I recall saying it, and I recall it happening.
DC: You recall it happening?
JD: I recall. I didnt thats the first time Ive remembered that since saying that when I was 6 years old, but I remember. (Child Maltreatment article, supra, at pp. 105-106.)
According to the Child Maltreatment article, Corwin thereafter showed Jane the videotapes of the 1984 interviews, took a two and one-half hour break, and then recommenced the 1995 videotaped interview. During that part of the interview, Corwin asked Jane to describe her feelings about viewing the videotapes. Jane responded that the tapes reinforced her belief that her mother had abused her. In her view, the girl she saw on the tapes would not have made up the accusations. Jane also expressed relief that she no longer had to entertain the possibility that her father, who recently had died, had lied to her about her mother.
At the end of the 1995 interview, Jane agreed that Corwin could use her interviews for educational purposes. She stated: Yeah, I think its I mean, Im prepared to give my life, devote my life, to helping other kids who have gone through what Ive gone through, well not necessarily what Ive gone through, that have gone through traumatic . . . experiences, by becoming a psychologist or psychiatrist, whichever I decide but, and I by no means want to stand in your way. (Child Maltreatment article, supra, at p. 109.)
In the final pages of the Child Maltreatment article, the authors reconciled possible inconsistencies between Janes recalled memory in 1995 and the accusations she made in 1984, and concluded that [t]he core recollection, then, is true to her earlier disclosures. (Child Maltreatment article, supra, at p. 110.) The authors also suggested that, assuming Janes memory of abuse actually had been unavailable to her prior to the 1995 interview, Corwins presence may have helped trigger her recall. Finally, the authors posed questions and issues to explore and address in the future.
In addition to the article by Corwin and Olafson, the May 1997 issue of Child Maltreatment contained five separate shorter articles by prominent professionals in the mental health field who had reviewed the Corwin and Olafson article and the videotaped interviews described in that article.[4] Each of these case commentaries uniformly praised the manner in which Corwin had conducted his interviews with Jane Doe and generally described the case study as unique, extraordinarily important, and providing important insights into the nature of missing memories. (E.g., Putnam, Commentary, supra, 2 Child Maltreatment 117, 117.) Further, a number of the commentators, in discussing additional questions they believed should be explored, stated that it would be useful to know what has happened to Jane subsequently. Has she recalled other previously unavailable traumatic memories (e.g., how her feet were burned)? How has this affected her relationship with her mother? . . . It would be interesting to see whether this experience has produced substantial changes in her life, for better or worse. (Putnam, Commentary, supra, 2 Child Maltreatment at p. 120; see also Ekman, Expressive Behavior and the Recovery of a Traumatic Memory: Comments on the Videotapes of Jane Doe, supra, 2 Child Maltreatment at p. 116 [Many questions remain unanswered and will only be revealed over time as we can learn how her adult personality takes shape].)
2. The 2002 Skeptical Inquirer Article
The May/June 2002 and July/August 2002 issues of the Skeptical Inquirer, a magazine published by the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP), included a two-part article, written by defendants Elizabeth Loftus and Melvin Guyer,[5]entitled Who Abused Jane Doe? The Hazards of the Single Case History (26 Skeptical Inquirer 24, 37 [hereafter, the Skeptical Inquirer article].) The stated premise of the Skeptical Inquirer article is that case studies, although useful to scientists, are bounded by the perceptions and interpretations of the storyteller and should be used to generate hypotheses to be tested, not as answers to questions. (Id. at pp. 25, 26.) To illustrate their point, Loftus and Guyer provide a case study of a case study a cautionary tale. (Id. at p. 26.) The case study they scrutinize is Corwin and Olafsons Child Maltreatment article.
According to the Skeptical Inquirer article, psychological researchers and clinicians disagree as to whether the human mind represses memories of traumatic experiences in such a way that these memories accurately can be recovered years later through tools such as therapy and hypnosis. The article also states that the Child Maltreatment article has been offered and accepted as proof that traumatic memories eventually can be reliably recovered.
The Skeptical Inquirer article summarizes the content of the Child Maltreatment article and offers the following summary of the reactions of professionals who had read about the Jane Doe case: Corwins case study was vivid and compelling. Leading scientists were persuaded by it; indeed, emotionally moved by it. Few considered any other possible explanations of Janes behavior at six or at seventeen. Few were skeptical that Jane really had been abused by her mother before age six, that her retrieved memories were accurate, or that repression accounted for her forgetting what her mother supposedly had done to her. [] But we were. (Skeptical Inquirer, supra, at p. 28, italics added by Court of Appeal.)
The Skeptical Inquirer article related that the allegations against Janes mother in 1984 grew out of a contentious five-year custody battle and were made at a time when many experts were unaware that interviewers looking for evidence of sexual abuse easily could manipulate children and taint their memories. Further, the article states that Corwin has a vested interest in persuading others that his initial finding of sexual abuse was accurate and that some repression-like process had prevented Jane from recalling that abuse during the period before Corwin re-interviewed her. (Skeptical Inquirer, supra, at p. 29.) Therefore, as Loftus and Guyer explained, we set out on an odyssey to learn more about the case. Our investigation produced much valuable information that should assist scholars in making their own decisions about whether Jane was abused, and if so, by whom. (Ibid.)
The Skeptical Inquirer article describes how Loftus and Guyer found clues to fuel their investigation notwithstanding the fact that Corwin had disguised the case. (Skeptical Inquirer, supra, at p. 29.) For one thing, Corwin showed videotapes of his interviews with Jane Doe at a number of professional meetings and, at some point during the interviews, Corwin used Janes real first name and a city where she spent some of her childhood. Using this information and other clues from the Child Maltreatment article, the authors of the Skeptical Inquirer article searched legal databases and found a published appellate court case relating to allegations that Janes father had failed to comply with visitation orders. (See In re William T. (1985) 172 Cal.App.3d 790.) That case provided additional factual details about Jane Does family. Further, the disclosure of the fathers first name and last initial led to a successful search for the fathers identity and, according to the authors, from there we uncovered the full history of the custody dispute and the abuse allegations. (Skeptical Inquirer, supra, at p. 29.)
The Skeptical Inquirer article includes its authors version of an accurate summary of the facts relevant to Jane Does allegations of abuse. This article does not disclose Janes identity or the real names of persons connected to her case. It does, however, provide details about Janes history that were not disclosed in the Child Maltreatment article, including unfavorable information about Janes father and stepmother. Many of the details concerning Janes history that are disclosed in the Skeptical Inquirer article were obtained through interviews conducted by or on behalf of the authors of the latter article.
Janes biological mother was interviewed. She continued to deny the allegations of abuse and, according to defendant authors, was eager for us to visit and told us a few things, of course from her perspective, that never appeared in any of Corwins accounts of this case. (Skeptical Inquirer, supra, at p. 30.) The Skeptical Inquirer article summarizes the mothers story and also reports that the maternal grandmothers best friend and Janes older brother concur that Jane never was abused by her mother. The article also discloses that, after Corwin reviewed with 17-year-old Jane the allegations of abuse, Jane severed all contact with her mother.
Janes foster mother, also interviewed for the Skeptical Inquirer article, allegedly described how Jane was extremely distressed when she came to live with her. (Skeptical Inquirer, supra, at p. 31.) Janes father had had a heart attack and could not care for her; Janes stepmother (who had divorced Janes father long ago) was out of the picture, and Jane wanted to put the puzzle pieces of her past together. (Ibid.) Janes foster mother helped Jane contact her biological mother but reported that the renewed relationship was destroyed after Corwin entered the picture. (Ibid.) Janes foster mother opined that viewing the tapes convinced Jane the abuse had occurred, and that the interview with Corwin dramatically changed Jane: She went into herself. She became depressed. She started behaving in self-destructive ways, and soon left FosterMoms home. (Ibid.) According to this article, Janes foster mother wondered whether Jane had rejected her because of the older womans strict rules against staying out late and misbehavior, or because she was trying to run away from her own misery. (Id., at p. 32.) Janes foster mother also wondered whether viewing the tapes was a mistake.
Janes stepmother, who also was interviewed for the article, allegedly volunteered that the way they [that is, Janes father and stepmother] got Jane away from Mom was the sexual angle. (Skeptical Inquirer, supra, at p. 32.) During the interview, the stepmother displayed continuing and serious animosity toward Janes mother, accusing her of such things as being a prostitute and a leech who always had her hand out. (Ibid.) According to the article, Janes stepmother described how she and Janes father documented their case against Janes mother by, for example, bringing Jane to two hospitals to have her feet examined to support the foot burning allegation. (Ibid.) The stepmother also reported that, when Jane was between the ages of four and nine years, Jane spoke to her about the sexual abuse she had endured. The Skeptical Inquirer article includes personal information concerning Janes stepmothers marital history and legal problems. The authors of the article maintained this information was relevant because Corwin used comparable information regarding Janes mother to discredit her credibility.
In this article, defendants Loftus and Guyer offer several reasons why they doubt that Jane Doe was physically or sexually abused by her mother, including: (1) six-year-old Janes reports of abuse were inconsistent; (2) the credibility of Janes father was not superior to that of Janes mother in terms of marital stability, criminal history, and other behavior; and (3) at least one expert who conducted a thorough contemporaneous investigation doubted that any abuse had occurred.
The Skeptical Inquirer article also questions whether 17-year-old Janes memory of an alleged prior event was, in fact, a recovered memory. The authors note, for example, that the evidence indicating that Jane had spoken about the allegations with her stepmother and others during the years between the 1984 interviews and the 1995 interview undermin[es] claims of massive repression or dissociation. (Skeptical Inquirer, supra, at p. 32.) Further, according to this article, [t]o the extent that Janes memory can be regarded as an instance of a recovered, accurate memory, there must be some objective and independent corroboration of the events she purports to remember. (Skeptical Inquirer, supra, at pp. 37, 38.) The authors suggest for several reasons that the required corroboration does not exist: (1) Corwins original clinical evaluation was neither objective nor reliable; (2) there is no evidence to support the allegation that Janes mother burned Janes feet; indeed, the authors own research supported the conclusion that, if Janes feet had been burned, the injury would have been documented by the hospitals where Jane was taken or by Child Protective Services, and no such documentation existed; (3) there is no evidence, prior allegation, or even reference in the reports or the evidence to support Janes supposed recollection that she previously had accused her mother of taking pornographic pictures of her and her brother; and (4) the emotion and personal details captured on the videotapes of the 1984 interviews could persuade not just knowledgeable scientists but Jane herself that the abuse had occurred even if it never had.
The Skeptical Inquirer article contains a postscript in which defendants Loftus and Guyer describe unexpected resistance to their efforts to critically evaluate Corwins claim that Jane Doe recovered a repressed memory. (Skeptical Inquirer, supra, at pp. 37, 40.) Defendants contend that critics of their inquiry impeded the publication of their work and that even their respective universities warned them not to publish any of the material they had gathered, even that which is in the public domain and readily found by anyone with access to a modem and Google search engine. (Ibid.) The authors stated: We are alarmed on behalf of all members of the academic community that our universities, institutions that above all others should be championing the right to free speech and academic debate, so implacably opposed it in this instance. (Ibid.)
3. The 2002 Tavris Article
In addition to the second part of the Loftus and Guyer article, the July/August 2002 issue of the Skeptical Inquirer contained an accompanying article entitled The High Cost of Skepticism by Carol Tavris (26 Skeptical Inquirer 41; hereafter the Tavris article).[6] In this article, Tavris posits that the power wielded by university institutional review boards (IRBs) stifles scientific inquiry and progress, and threatens the very foundation of the skeptical movement. (Tavris, supra, 26 Skeptical Inquirer at p. 42.) To illustrate her point, Tavris focuses on the authors of the Skeptical Inquirer article summarized above: The story of what happened to Elizabeth Loftus and Mel Guyer when they set out to investigate the case of Jane Doe is itself, Tavris contends, a case study of the high cost of skepticism. (Ibid.)
According to the Tavris article, the authors of the Skeptical Inquirer article decided to examine the Jane Doe case and Corwins alleged evidence of a recovered memory of sexual abuse, because the stakes were high for their work as scholars, teachers, and expert witnesses, because the case was already being used in court as evidence that recovered memories of sexual abuse in childhood are reliable. (Tavris, supra, 26 Skeptical Inquirer at p. 42.) According to this article, Loftus and Guyer were encouraged to pursue their story after finding that documents in the public record were inconsistent with the Child Maltreatment article.
The Tavris article describes how Loftus and Guyer were treated by the IRBs at the universities where they were employed. The IRB at the University of Michigan, where Guyer was employed, allegedly took the position initially that its approval for this project was unnecessary, because Guyer would not be doing human subjects research, but then reversed its position a month later, when it disapproved the project and recommended that Guyer be reprimanded. (Tavris, supra, 26 Skeptical Inquirer at p. 42.) Then, several months later, a new chair of the IRB determined that this project was exempt from IRB consideration because it did not involve human subjects research, and found there was no basis for recommending a reprimand.
According to the Tavris article, Loftus and Guyer were encouraged by the green light given to Guyer at Michigan and continued their investigation until the University of Washington, where Loftus was employed, received an e-mail from Jane Doe complaining that her privacy was being violated. (Tavris, supra, 26 Skeptical Inquirer at p. 42.) Tavriss article offered the following explanation as to why the University of Washington should have rejected Jane Does complaint out of hand: Considering that David Corwin had published his account of her life and was traveling around the country showing videotapes of Jane at six and seventeen, and considering that no one was making her story public (and hence violating her privacy) except Jane herself and Corwin, this complaint should have been recognized as a cry from a troubled and vulnerable young woman, and set aside. (Id. at pp. 42-43.)
Instead, Tavris reports, the investigation conducted by the University of Washington lasted more than 21 months, consisted of a series of shifting charges against Loftus, often kept secret from her, and was fueled by improper outside influences. These influences included a scathing memorandum drafted by a member of the University of Michigans IRB who was critical of Guyer, as well as the litigation strategies of opposing counsel in an out‑of‑state court case in which Loftus was a defense expert and Corwin was a plaintiffs expert. Ultimately, Tavris reports, Loftus was exonerated of charges of scholarly misconduct, and the University of Washington concluded that her investigation of the Jane Doe case did not constitute human subjects research. Even then, however, Loftuss employer, the University of Washington, instructed her not to contact Jane Does mother again, or to interview anyone else in the case without advance approval.
The Tavris article describes Jane Doe as an unhappy young woman whose life has been filled with conflict and loss. (Tavris, supra, 26 Skeptical Inquirer at p. 43.) It characterizes Corwin as a man who has publicly promoted his case study as a personal vindication and a prototype of how recovered memories should be studied (ibid.) while presenting Loftus and Guyer as heroes whose courage, persistence, and integrity made them willing to offend in the pursuit of truth and justice. (Ibid.) [End of excerpt from Court of Appeal opinion.]
B. First Amended Complaint
On February 13, 2003, a few months after the publication of the Skeptical Inquirerand Tavris articles, plaintiff filed the initial complaint in this proceeding against Loftus, Guyer, Tavris, the Skeptical Inquirer, the University of Washington, and Shapiro Investigations, a private investigation company that had performed some investigation services for Loftus. In the initial paragraph of the complaint, plaintiff identified herself as Lieutenant Junior Grade Nicole S. Taus, also known as Jane Doe in publications referred to herein. As far as the record reveals, the filing of the complaint was the first occasion on which Jane Does true identity was publicly disclosed. The complaint also disclosed other personal information about plaintiff, including the names of her parents, the year she was born, and the city where she was raised.
On March 6, 2003, prior to any response by defendants, plaintiff filed a first amended complaint, adding CSICOP (the publisher of Skeptical Inquirer) and the Center for Inquiry West (an affiliate of CSICOP) as defendants. The first amended complaint, which is the operative complaint for purposes of the present proceeding, sets forth four causes of action.
The first cause of action alleged that all defendants were liable to plaintiff for negligent infliction of emotional distress. The complaint asserted that defendants had misused their knowledge and skills as psychologists, researchers[,] and writers and exploited plaintiff when they knew or should have known that plaintiff had a background and personal history of abuse so as to make her extremely susceptible to emotional abuse, slander, libel and exploitation.
The second cause of action, also directed at all defendants, sought recovery for invasion of privacy. The complaint maintained that plaintiff is not a public figure and has a constitutional and statutory right to privacy, particularly with respect to her medical history and juvenile court records. The complaint asserted that defendants obtained private information about plaintiff both legally and by false representations and published that information, including statements about plaintiff that are not truthful. In particular, the complaint alleged that defendants employed fraudulent means to obtain private information from plaintiffs relatives, including misrepresenting their identity and befriending plaintiffs biological mother.
The third cause of action, directed at Loftus and the University of Washington, sought recovery for fraud. The fraud claim against Loftus was based on allegations that Loftus made misrepresentations to plaintiffs relatives and friends in order to obtain private information about her, and the claim against the University of Washington apparently rested on allegations that the university falsely had represented to plaintiff that the process under which she filed an ethics complaint against Loftus with the university would be confidential.
Finally, the fourth cause of action, directed against Loftus and Tavris, sought recovery for defamation. The complaint alleged that Loftus and Tavris made oral and written statements about plaintiff designed to suggest that she was unhappy, vulnerable, and of questionable fitness for her duty as an officer in the military. The claim against Tavris related solely to statements in the Tavris article. The claim against Loftus was based both on statements in the Skeptical Inquirer article and on public and disparaging statements about plaintiff allegedly made by Loftus after the publication of the Skeptical Inquirer, including Loftuss alleged remark at a professional conference that Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney. Jane is in the Navy representing our country.
C. The Motion to Strike
On May 13, 2003, defendants Loftus, Guyer, Tavris, the Skeptical Inquirer, CSICOP, and the Center for Inquiry West filed a motion pursuant to the anti-SLAPP provisions of section 425.16 to strike the first amended complaint; Shapiro Investigations subsequently joined in the motion. The motion to strike was accompanied by a variety of exhibits and declarations. Plaintiff filed an opposition to the motion to strike, maintaining that section 425.16 is inapplicable because statements about her are not matters of legitimate public concern and that, in any event, the declarations and other materials accompanying the opposition demonstrate a probability that she would prevail on the merits of each of her claims. Defendants filed a reply to the opposition, attaching additional declarations and exhibits.
After consideration of the motion, opposition, and reply, and the accompanying declarations and exhibits, the trial court denied the motion to strike the causes of action for negligent infliction of emotional distress and invasion of privacy. The trial court granted the motion to strike the cause of action for fraud against Loftus but denied the motion as to that cause of action against the University of Washington,[7]and granted the motion to strike the cause of action for defamation against Tavris, but denied the motion as to that claim against Loftus.
All defendants that had filed the motion to strike appealed from those portions of the trial courts ruling permitting the majority of plaintiffs claims to proceed. Plaintiff did not appeal from the portions of the trial courts ruling striking the fraud cause of action against Loftus and the defamation cause of action against Tavris, and accordingly those portions of the trial courts ruling were not before the Court of Appeal and are not before us.
TO BE CONTINUED AS PART II.
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[1] As explained in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, SLAPP is an acronym for strategic lawsuits against public participation. Finding that there had 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 (Code Civ. Proc., 425.16, subd. (a)), the Legislature in 1992 enacted the motion-to-strike procedure now embodied in section 425.16, subdivisions (b) (i).
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
[2] At the time the Child Maltreatmentarticle was published, Corwin (a psychiatrist) and Olafson (a psychologist) were, respectively, the director and co-director of the program on childhood victimization and the law at the University of Cincinnati College of Medicine.
[3]DC refers to David Corwin. JD refers to Jane Doe. The parenthetical comments were added by the authors of the Child Maltreatment article.
[4] The five commentaries are: (1) Ekman, Expressive Behavior and the Recovery of a Traumatic Memory: Comments on the Videotapes of Jane Doe (May 1997) 2 Child Maltreatment 113; (2) Putnam, Commentary (May 1997) 2 Child Maltreatment 117; (3) Armstrong, Exploring the Lines of Jane Does Picture of Pain (May 1997) 2 Child Maltreatment 121; (4) Neisser, Jane Does Memories: Changing the Past to Serve the Present (May 1997) 2 Child Maltreatment 123; (5) Schooler, Reflections on a Memory Discovery (May 1997) 2 Child Maltreatment 126.
[5] At the time the Skeptical Inquirer article was published, Loftus was a psychology professor and adjunct professor of law at the University of Washington and Guyer was a psychology professor at the University of Michigan Medical School.
[6] The article identifies Tavris as a social psychologist, writer, and lecturer, and the co-author of three introductory psychology textbooks.
[7] Because the University of Washington did not file a motion to strike under section 425.16, the causes of action against the university were not formally before the trial court with regard to that motion. The University of Washington has not appealed from the trial courts ruling, and accordingly the viability of plaintiffs action against the university is not before us in the present proceeding.
