TAUS v. LOFTUS
Filed 2/26/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendants and Appellants. ) Super. Ct. No. FCS021557
__________________________________ )
STORY CONTINUED FROM PART I..
D. The Court of Appeals Decision
In analyzing the validity of the trial courts ruling on the motion to strike, the Court of Appeal turned initially to the terms of the anti-SLAPP statute, section 425.16, and in particular to subdivision (b)(1) of that provision, which provides: A cause of action against a person arising from any act of that person in furtherance of the persons 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. As the Court of Appeal recognized, past cases establish that in ruling on a section 425.16 motion to strike, a court generally should engage in a two-step process: First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 67 (Equilon).)
In undertaking the first step of the analysis namely, determining whether the conduct or activity of defendants that gave rise to plaintiffs claims was activity in furtherance of defendants right of petition or free speech in connection with a public issue the Court of Appeal noted that section 425.16, subdivision (e) defines such activity as including 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 as well as 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)(3) & (4), italics added.) The Court of Appeal then pointed out that the statements and conduct which gave rise to [plaintiffs] causes of action relate specifically to the validity of the Jane Doe case study which was the subject of the Child Maltreatment article and, more generally, to the question whether childhood memories of traumatic sexual abuse can be repressed and later recovered (the repressed memory theory). The appellate court further observed that the record before the trial court contains considerable evidence of both (1) an ongoing controversy in academic and clinical circles within the field of psychology as to the validity of the repressed memory theory, and (2) that the publications at the root of this litigation are part of this ongoing debate. In light of these circumstances, the Court of Appeal concluded that the activities of defendants that gave rise to plaintiffs action that is, investigating, publishing, and speaking about the subjects of their magazine articles were acts in furtherance of defendants right of free speech for purposes of the anti-SLAPP statute.[1]
The Court of Appeal then turned to the second step of the section 425.16 analysis namely, whether plaintiff had demonstrated a probability of prevailing on each of the claims that the trial court had declined to dismiss. Because the remaining claims that are now before this court can best be understood in light of the Court of Appeals discussion and disposition of all of plaintiffs claims, we shall summarize that courts analysis of the potential merit of each of the claims that the trial court declined to dismiss.
1. Negligent Infliction of Emotional Distress
With respect to the first cause of action for negligent infliction of emotional distress the Court of Appeal concluded that the complaint failed to articulate any theory of negligence that might apply in this case. The appellate court noted that although plaintiffs appellate brief contained an extremely vague argument that [defendants] breached their ethical obligations by violating applicable professional standards, plaintiff had failed to identify a single ethical obligation or professional standard that was allegedly breached. Instead, she contends that [defendants] have essentially conceded that publishing the Skeptical Inquirerarticle constituted a violation of the ethical obligations of a psychologist. Not surprisingly, [defendants] concede no such thing. Accordingly, the Court of Appeal concluded that plaintiff had failed to demonstrate a probability that she would prevail on her negligent-infliction-of-emotional-distress theory, and held that this claim must be stricken.
2. Invasion of Privacy
With regard to the second cause of action for invasion of privacy the Court of Appeal determined that the allegations in the first amended complaint potentially implicated two distinct invasion-of-privacy torts (1) the tort of improper public disclosure of private facts, and (2) the tort of improper intrusion into private matters (see generally Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214-242 (Shulman)) and it separately discussed the viability of these two distinct tort theories.
a. Public‑Disclosure‑of‑Private-Facts Tort
As to the public‑disclosure‑of‑private‑facts tort, the Court of Appeal indicated that the complaint identified three allegedly improper disclosures: (1) the Skeptical Inquirer article, (2) the Tavris article, and (3) statements that Loftus made in other contexts. Noting that past cases had established that lack of newsworthiness is an element of the private facts tort, making newsworthiness a complete bar to common law liability for this tort (Shulman, supra, 18 Cal.4th 200, 215), the Court of Appeal initially determined that neither the complaint nor the material submitted in conjunction with the motion to strike identified any private fact that was revealed in the Skeptical Inquirer or Tavris articles which is not newsworthy. The court found in this regard that [t]o the extent these articles disclosed private information about [plaintiffs] past that was not already disclosed in the Child Maltreatment article, these facts related to the validity of Corwins conclusions that [plaintiff] was abused by her mother, repressed the memory of sexual abuse and then recovered that memory 11 years later, and that the role of the Jane Doe case study in the repressed memory debate made the validity of that case study a matter of legitimate public interest.[2] Accordingly, the Court of Appeal held that plaintiff had not demonstrated a probability of prevailing on the private‑facts tort with regard to any of the disclosures made in either the Skeptical Inquireror Tavris articles.
At the same time, however, the Court of Appeal concluded that plaintiff had demonstrated a probability of prevailing on a private-facts tort theory with regard to statements that Loftus had made in other contexts. The Court of Appeal noted in this regard that there is evidence in the record that Loftus made the following statement at an October 2002 professional conference: Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney. Jane is in the Navy representing our country, and that [t]here is also evidence that Loftus revealed the first and last initial of [plaintiffs] real name during a deposition in an unrelated court action. The Court of Appeal concluded that [t]hese comments publicly disclose private information about Taus which is not newsworthy. They do not relate in any way to the validity of the Jane Doe study, the repressed memory debate or to any other matter of legitimate public interest. They are clues to the true identity of Jane Doe and, under the circumstances, a reasonable jury could find that disclosing this information was both offensive and objectionable.
Accordingly, although the Court of Appeal concluded that the private-facts tort could not proceed with regard to any disclosures in the Skeptical Inquireror Tavris articles themselves, the appellate court held that plaintiff had demonstrated a probability of prevailing on a private-facts tort theory against Loftus on the basis of statements relating to plaintiff that Loftus allegedly made at a professional conference and during a deposition in an unrelated court action.
b. Intrusion‑into‑Private‑Matters Tort
With regard to the intrusion‑into‑private‑matters tort, under which liability may be imposed for an intrusion into a private place, conversation, or matter . . . in a manner highly offensive to a reasonable person (Shulman, supra, 18 Cal.4th 200, 231), the Court of Appeal found that plaintiff has identified three alleged intrusions into her zone of privacy: (1) establishing a friendship with [plaintiffs] biological mother in order to obtain personal information about [plaintiff]; (2) securing interviews with friends and family through fraudulent means; and (3) collecting and disseminating confidential information about [plaintiff] from various court files. The Court of Appeal separately analyzed each of these alleged intrusions.
With regard to the initial alleged intrusion, the appellate court held that [t]he friendship between Loftus and [plaintiffs] mother is not an intrusion into [plaintiffs] private life. The court explained that [t]he subjects that [plaintiffs] mother discussed with Loftus were not private to [plaintiff] because they also obviously involved [plaintiffs] mother, and that [plaintiffs] mother has as much right to share her story with Loftus as [plaintiff] has to share the details of her life with Corwin. Accordingly, the Court of Appeal concluded that Loftuss conduct in befriending plaintiffs mother did not support a cause of action for improper intrusion.
With regard to plaintiffs claim that defendants could be held liable for improper intrusion into private matters by conducting interviews with plaintiffs relatives or friends by fraudulent means, however, the Court of Appeal concluded that the evidence presented by defendant was sufficient to support the imposition of liability on this theory. The appellate court relied on a declaration of plaintiffs foster mother, Margie Cantrell, that alleged: Loftus contacted [Cantrell] in late 1997, told her she [Loftus] was working with Corwin to help [plaintiff], and requested that Cantrell come to an office to answer some questions. Cantrell stated that she accepted the invitation because she knew Corwin and she knew that [plaintiff] trusted him and because she wanted to help [plaintiff]. Cantrell further stated that when she met Loftus, Loftus welcomed her, saying again that she was working with Dr. Corwin and was actually his supervisor in connection with his study of [plaintiff]. The Court of Appeal stated that Cantrells declaration is undisputed evidence that [defendants] penetrated a zone of privacy which included Cantrell, who was not only a close friend and confidant of [plaintiffs] but also a mother figure to her, by misrepresenting their identity and true purpose. Appellants contend that only Cantrell has standing to pursue a claim based on these alleged misrepresentations. We agree that [plaintiff] cannot use this evidence to support her fraud claim. On the other hand, this evidence is relevant to show that [defendants] intruded into a private area of [plaintiffs] life. Indeed, this evidence actually suggests that [defendants] were aware that the information they sought was private and that it would not have been shared with them had they been truthful about the nature and purpose of their investigation. Accordingly, the Court of Appeal concluded that plaintiff had demonstrated a probability of prevailing on an intrusion-into-private‑matters tort on the basis of Lotuss alleged misrepresentations to Cantrell.
With respect to plaintiffs claim that defendants had engaged in an improper intrusion into private matters by obtaining private information from court records, the Court of Appeal explained that plaintiff actually had advanced two distinct arguments in this regard. First, plaintiff argued that defendants had engaged in improper intrusion in gathering information about her from documents, such as medical and [Child Protective Services] reports, which, although contained in files open to the public, were of a confidential nature. The Court of Appeal found that this portion of plaintiffs claim lacked merit, relying on our holding in Shulman, supra, 18 Cal.4th 200, 231, that there can be no liability for the examination of a public record concerning the plaintiff.
Second, the Court of Appeal noted that plaintiff also argued that defendants had obtained private information about her from documents contained within her juvenile dependency file. Because such files are not open to the public, but rather are confidential, the Court of Appeal concluded that defendants could be held liable for improper intrusion if they improperly had obtained access to plaintiffs confidential juvenile court records. Although defendants vigorously maintained that any medical or psychological reports they obtained came from the Stanislaus County divorce proceeding a public record and pointed out that plaintiff had failed to adduce any evidence that defendants had accessed plaintiffs confidential juvenile court records in Solano County, the Court of Appeal, relying upon a statement in a declaration from the owner of Shapiro Investigations that one of his employees had copied voluminous public records at the Solano County courthouse that may have been relevant to the Jane Doe case, concluded that the record contained sufficient evidence from which a jury could reasonably infer that some form of trickery or misconduct was employed to obtain confidential files in Solano County. Accordingly, the Court of Appeal concluded that plaintiffs improper-intrusion-into-private-matters claim could go forward insofar as it was based on defendants conduct in gaining improper access to, and using information derived from, plaintiffs confidential juvenile court files.
3. Defamation
Finally, the Court of Appeal examined whether plaintiff had established a probability of prevailing on her defamation claim against defendant Loftus. In addressing this issue, the appellate court noted that the defamation claim was based on five distinct statements ― three that appeared in the Skeptical Inquirer article, and two that Loftus allegedly had made in other contexts. The Court of Appeal found that none of the first four challenged statements properly could support a defamation claim, but concluded that the defamation action could proceed with regard to the final statement challenged by plaintiff.
In analyzing the defamation claim, the Court of Appeal turned first to the three statements in the Skeptical Inquirer article that plaintiff asserted provided a proper basis for a defamation action. The statements in question, as set forth by the Court of Appeal, are as follows: (1) After Jane met with Corwin and viewed the tapes, she started behaving in self-destructive ways, and soon left FosterMoms home. [] (2) Jane terminated her newly emerging relationship with her mother after Corwin came back into her life and replayed her childhood tape. Her mother lost her once, long ago in 1984, and lost her again in 1995. At this writing they are not in contact with one another. [] (3) If the abuse never happened in the first place, the adult-child may be mistakenly led to believe that it did because she does not understand that there are reasons why a child might make an abuse report even when no abuse had occurred. She may be led to act on the basis of this new information in ways that she would not have otherwise acted, with results devastating for her and others. In this case, for example, Jane terminated her newly re-forming relationship with her mother after seeing her childhood tapes.
The Court of Appeal concluded that plaintiff had failed to demonstrate either that any express factual assertion in any of these three statements is false or that the statements reasonably could be construed as implying one or more falsehoods about her. With respect to the first statement, the court rejected plaintiffs assertion that the statement reasonably could be construed as stating that plaintiff had physically injured herself and had run away from home, observing instead that the statement relates to Janes foster mothers recollection about Janes change in behavior after she viewed the tapes, which included such things as expressing anger toward the foster mother and refusing to follow strict rules against staying out late and misbehavior conduct that, as the appellate court noted, plaintiff has not denied engaging in. With respect to the second and third statements from the Skeptical Inquirer article, the Court of Appeal concluded that the false implication to which plaintiff suggested the statements gave rise that viewing the videotapes had caused plaintiff to terminate her relationship with her biological mother when, plaintiff asserts, it was Loftuss own interference that caused the subsequent rift between her and her biological mother was actually a subjective expression[] of opinion . . . that could be drawn from facts presented in both the Child Maltreatmentand the Skeptical Inquirer articles, and, as such, could not support a defamation action against Loftus.
The Court of Appeal then turned to the first statement not contained in the Skeptical Inquirerarticle that plaintiff claimed was defamatory. On June 14, 2001, prior to the publication of thatarticle and while the University of Washingtons investigation of plaintiffs ethics complaint against Loftuss investigatory activities was ongoing, Loftus made the following statement during a speech to the annual meeting of the American Psychological Society in Toronto:[3]I continue to be the target of efforts to censor my ideas. I am gagged at the moment and may not give you the details. . . . Who after all benefits from my silence? Who benefits from such investigations in the dark? The only people who operate in the dark are thieves, assassins and cowards. The Court of Appeal found that [u]nder the circumstances, no reasonable person who heard this statement on June 14, 2001, could have interpreted it as a statement of actual fact concerning [plaintiff]. Because this statement was made before the Skeptical Inquirerarticle was published, it is unlikely anyone even connected it to Jane Doe. Moreover, the Court of Appeal found that even after the publication of the Skeptical Inquirerarticle, any reasonable person would understand Loftuss colorful statement as the rhetoric of an agitated advocate whose efforts to promote a professional theory were thwarted by those who disagreed with her. As used in this way, the terms thieves, assassins and cowards are nothing more than subjective expressions of disapproval, devoid of factual content. Accordingly, the Court of Appeal concluded that the June 14, 2001 statement would not support a defamation claim.
With respect to the last statement of Loftus on which plaintiffs defamation claim was based, however, the Court of Appeal concluded that the defamation claim should be permitted to go forward. The statement in question was the same statement allegedly made by Loftus at the October 2002 professional conference that the Court of Appeal previously had found could support an action for improper public disclosure of private facts. As noted above, Loftus allegedly stated at the 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. In the Court of Appeals view, these remarks were not an expression of opinion or a subjective professional judgment drawn from fully disclosed facts but rather could reasonably be interpreted as implying that [plaintiffs] ongoing destructive behavior or the effects of past behavior make her unfit for military service a defamatory implication. Moreover, the Court of Appeal concluded that in contrast to the statements made in the Skeptical Inquirer article, this statement does not relate to a matter of public interest. It has no bearing on the validity of the Jane Doe case study or on any aspect of the controversy relating to the repressed memory theory. In light of its determination that the public has no legitimate interest in that matter, the Court of Appeal concluded that the truth of the alleged statement is a defense with respect to which Loftus has the burden of proof, and because Loftus had not presented any evidence that plaintiff had engaged in behavior that made her unfit for military service, the appellate court held that the record demonstrated a probability that plaintiff would prevail on her claim for defamation based on Loftuss October 2002 statement.
4. Court of Appeals Conclusion
In sum, although the Court of Appeal concluded that the majority of plaintiffs claims against defendants should have been dismissed, it held that the action could go forward with respect to (1) a cause of action for improper public disclosure of private facts based upon Loftuss alleged statement at the October 2002 professional conference and Loftuss disclosure of plaintiffs initials during a deposition in an unrelated case, (2) a cause of action for improper intrusion into private matters based upon Loftuss alleged misrepresentations to plaintiffs foster mother and upon defendants alleged intrusion into confidential juvenile court files, and (3) a cause of action for defamation based upon Loftuss alleged statement at the October 2002 professional conference.
E. Petition for Review and Issues before this Court
After the Court of Appeal issued its opinion, only defendants petitioned for review in this court, raising contentions relating solely to those claims as to which the Court of Appeal had found that defendants anti-SLAPP motion properly was denied. Because plaintiff did not petition for review or file an answer contesting any issue on which the Court of Appeal ruled against her, we have no occasion to address any such issue here.[4]
Accordingly, the only issues before us are whether the Court of Appeal properly concluded that dismissal under the anti-SLAPP statute was improper with regard to plaintiffs claims relating to the following four incidents or conduct allegedly engaged in by one or more of the defendants:
1. Loftuss statement at the October 2002 professional seminar (relating to Jane Does position in the military), which the Court of Appeal concluded could support either (a) a cause of action for public disclosure of private facts, or (b) a cause of action for defamation.
2. Loftuss disclosure of plaintiffs initials during a deposition in March 2003, a disclosure that the Court of Appeal concluded would support, along with Loftuss statements at the October 2002 seminar, a cause of action for public disclosure of private facts.
3. Defendants collection of information from court records, which the Court of Appeal concluded would support a cause of action for improper intrusion into private matters.
4. Loftuss alleged misrepresentation of her relationship with Corwin in obtaining information about plaintiff from plaintiffs foster mother, which the Court of Appeal concluded would support a cause of action for improper intrusion into private matters.
We begin by discussing the standard that governs the determination of a motion to strike under the anti-SLAPP statute, and then turn to the application of that standard to each of the four incidents in question.
II
As explained above, this appeal is from a trial court ruling on a special motion to strike under Californias anti-SLAPP statute. Section 425.16, subdivision (b)(1) provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the persons 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. As the Court of Appeal recognized, in applying the statute a court generally is required to engage in a two-step process: First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon, supra, 29 Cal.4th 53, 67.)
Here, we believe there can be no question but that defendants general course of conduct from which plaintiffs cause of action arose was clearly activity in furtherance of [defendants] exercise of . . . free speech . . . in connection with a public issue within the meaning of section 425.16. As the initial Child Maltreatment article itself makes abundantly clear, at the time of defendants actions there was a substantial controversy in the mental health field regarding whether, and under what circumstances, a victim of child abuse might forget or suppress the memory of the abuse over a long period of time and later recover that memory in response to questioning or other actions by a therapist. (See Child Maltreatment article, supra, at pp. 91-92.)[5] Further, defendants unquestionably were engaged in conduct in furtherance of their right of free speech in (1) conducting an investigation with regard to the validity of the Child Maltreatment article, (2) writing and publishing responsive articles questioning the conclusions of the Child Maltreatment article, and (3) speaking at professional conferences and meetings regarding the issues raised by the articles. Because the various causes of action set forth in plaintiffs first amended complaint sought to impose liability upon defendants on the basis of such conduct, the claims plainly fell within the scope of the anti-SLAPP statute.[6]
Accordingly, in order to avoid dismissal of each claim under section 425.16, plaintiff bore the burden of demonstrating a probability that she would prevail on the particular claim. In Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, we explained what such a showing entails: In order to establish a probability of prevailing on the claim ( 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must state[] and substantiate[] a legally sufficient claim. [Citations.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant ( 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendants evidence supporting the motion defeats the plaintiffs attempt to establish evidentiary support for the claim. [Citation.] (28 Cal.4th at p. 821, italics in original.) (See also, e.g., Equilon, supra, 29 Cal.4th 53, 63 [section 425.16 subjects to potential dismissal . . . those cases of action as to which the plaintiff is unable to show a probability of prevailing on the merits [citation], a provision we have read as requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim ]; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [under section 425.16 the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation].)
As the foregoing decisions demonstrate, although by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether the plaintiff has established that there is a probability that the plaintiff will prevail on the claim (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities. (See also Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Accordingly, when a defendant makes the threshold showing that a cause of action that has been filed against him or her arises out of the defendants speech-related conduct, the provision affords the defendant the opportunity, at the earliest stages of litigation, to have the claim stricken if the plaintiff is unable to demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.
As discussed above, the Court of Appeal held that plaintiff failed to establish such a probability of prevailing with regard to the bulk of defendants conduct to which the complaint was directed, and plaintiff did not seek review of the appellate courts decision. Accordingly, the claims found deficient by the Court of Appeal are not before us. The issues before us are limited to those claims as to which the Court of Appeal found that plaintiff adequately had established a prima facie case to avoid dismissal under section 425.16. As noted, the claims in question relate to defendants conduct in four separate instances: (1) a statement allegedly made by Loftus at a professional conference in October 2002 disclosing Jane Does position in the military, (2) Loftuss disclosure of plaintiffs initials at a deposition in March 2003, (3) defendants alleged improper collection of information from confidential court files in researching the Skeptical Inquirer article, and (4) Loftuss alleged misrepresentation of her relationship with Corwin in order to obtain information relating to plaintiff from plaintiffs foster mother during the investigation and research for the Skeptical Inquirer article.
We discuss each of these claims in turn. As we shall explain, with respect to the first three matters Loftuss statement at the October 2002 conference disclosing Jane Does position in the military, Loftuss disclosure of plaintiffs initials at a March 2003 deposition, and defendants alleged improper collection of information from court files we conclude that the Court of Appeal erred in finding that plaintiff had satisfied her burden of establishing a prima facie case on any cause of action based on these incidents. With respect to the fourth matter Loftuss alleged misrepresentation of her relationship with Corwin for the purpose of obtaining information from plaintiffs foster mother we agree with the Court of Appeals determination that a prima facie case has been established.
III
Plaintiffs claims regarding the October 2002 conference are based entirely on the facts set forth in a declaration of a single witness, Lynn Crook. Crooks declaration states that she has a masters degree in educational psychology and is an investigative journalist by profession, and discloses that she first encountered Loftus in the mid-1990s when Loftus testified as an adverse expert witness in a civil sexual abuse case in which Crook herself was the plaintiff. The declaration reveals that Crook and Loftus subsequently have had a long-standing history of hostile relations, with Crook filing a series of ethics complaints against Loftus with the American Psychological Association and the University of Washington, and Loftus responding with what Crooks declaration characterizes as years of systematic harassment.
The bulk of Crooks declaration is directed at Loftuss activities and methodology in investigating and writing the Skeptical Inquirer article and thus is concerned with claims that were rejected by the Court of Appeal and that are not before this court, but three paragraphs of the declaration relate to Loftuss statements at the October 2002 conference. The declaration states in this regard that in October 2002, Crook attended the False Memory Syndrome Foundation conference held in Illinois, and was present at a talk given by Loftus at the conference. The declaration states that Loftuss remarks were not audiotaped or videotaped, but that Crook made careful notes. The declaration indicates that although Loftus expressed sympathy for plaintiffs biological mother, Loftuss composure and tone changed when talking about Jane herself. In a sarcastic tone, she told the audience: Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney. Jane is in the Navy representing our country. In Crooks view, the clear implication was that Jane had engaged in such destructive activity as to render her service in the Navy as questionable, perhaps even dangerous to the country.
Loftus submitted a declaration and a supplemental declaration in support of the motion to strike, taking issue with Crooks version of the statements made by Loftus at the October 2002 conference. Loftuss declaration indicates that she was invited to speak at the October 2002 conference of the False Memory Syndrome Foundation in Chicago, Illinois, and on that occasion she lectured on the Jane Doe article, mostly reading directly from the Skeptical Inquirer article.
With regard to the specific statements attributed to her by Crooks declaration, Loftus does not deny stating at different points during the October 2002 conference that Jane Doe engaged in destructive behavior or that she was in the military, but she denies that the two statements were in any way linked. Loftuss declaration states: As I recall, in response to a question from the audience about what I understood Jane Doe was doing now, I simply responded that she was in the military. I never said or implied that Jane Doe was not fit to serve in the military. I did not intend to make that implication. The declaration further states that with regard to the use of the term destructive, I did use that term in the article in describing how Jane Doe had purportedly reacted to her purported recovered memories of her alleged abuse. I wrote: According to Foster Mom, Jane changed dramatically after the interview with Corwin. . . . She started behaving in self-destructive ways. [Citation.] I may have mentioned this point in the lecture too, but I did not specify what the self-destructive behavior was, even though I did possess more specific information. I did not elaborate at the time out of my concern for Jane Does privacy.
Although Loftus did not go into the details of Jane Does self-destructive behavior in either the Skeptical Inquirer article or at the October 2002 conference, Loftuss declaration states: Now that Plaintiff has brought this action, in my defense, it is appropriate that I explain that my comments were based on information that I had learned during my investigation. Jane Does foster mother told me during my interview of her that shortly after apparently recovering her memories in 1995, Plaintiff started sleeping with boys and doing drugs. Plaintiff also snuck out of the house at night. And she apparently left the care of her foster mother. At the time I made this observation about Jane Does destructive behavior, I believed the underlying facts to be true. To this day, I continue to believe that the information I learned from my research was truthful.
In response to this portion of the Loftus declaration, the declaration submitted by plaintiff states: Dr. Loftus has deliberately dumped into the record in her declaration here that Margie Cantrell told her that after recovering her memories in 1995 . . . Plaintiff started sleeping with boys and doing drugs. . . . I am absolutely astonished as to the depths to which defendant Loftus will stoop. These are statements attributed to someone who was defrauded into saying anything to Dr. Loftus. The statements may have reflected concerns Ms. Cantrell had at the time, but they are false statements. Cantrell also submitted a declaration stating that she agreed to speak with Loftus only after Loftus had misrepresented her relationship with Corwin. In her declaration, however, Cantrell did not deny making the statements about plaintiff attributed to her by Loftuss declaration.
As discussed above, the Court of Appeal held that the allegations of the complaint and the declarations filed with the trial court relating to Loftuss alleged statement at the October 2002 conference were sufficient to establish a prima facie case with respect to two causes of action: (1) improper public disclosure of private facts, and (2) defamation. We turn first to the public-disclosure-of-private-facts cause of action.
TO BE CONTINUED AS PART III.
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[1] The Court of Appeal concluded that the conduct of defendants that gave rise to plaintiffs action related to a public issue or an issue of public interest within the meaning of section 425.16, subdivision (e) a conclusion that we believe is clearly correct. (See post, pp. 33-35.) In the course of its discussion of this point, however, the Court of Appeal also noted that plaintiff maintains that she is a private figure, [and] that she has never taken any position with respect to the clinical implications of the Jane Doe case study or played any role in an alleged controversy relating to the theory that traumatic experiences can be repressed and subsequently recalled. The appellate court then stated: We agree with these assertions. In explaining its agreement with plaintiffs description of herself as a private figure, the Court of Appeal expressed the view that [plaintiff], whose identity was not publicly revealed until she filed this lawsuit, cannot reasonably be characterized as a person who was in the public eye when [defendants] allegedly engaged in the conduct which gave rise to [plaintiffs] claims.
Defendants vigorously challenge the Court of Appeals position on this point, maintaining that plaintiff, by repeatedly consenting to have the videotapes and transcripts of her conversations with Corwin publicly disclosed and used extensively in educational seminars and set forth in Corwin and Olafsons Child Maltreatment article, cannot properly be viewed as a private figure but rather must be properly considered a limited public figure for constitutional free speech purposes even though Corwin did not reveal plaintiffs real name. As discussed below, we do not believe it is necessary to decide in this case whether plaintiffs voluntary actions with respect to the publication and use of her interviews with Corwin rendered her a limited public figure for constitutional purposes. (See post, pp. 45-46, fn. 16.) At the same time, however, we believe it is prudent to express reservations regarding the Court of Appeals unequivocal endorsement of plaintiffs claim to be a private person who cannot reasonably be characterized as a person who was in the public eye . . . . In our view, there is at the very least a strong argument that free speech considerations would support treating plaintiff as a limited public figure in light of (1) her voluntary consent to Corwins public use of videotapes revealing her face and voice, and (2) the prominent role that her case study attained in the ongoing controversy regarding the repressed memory theory.
[2] The Court of Appeal acknowledged that the Tavris article also disclosed that Jane Doe had filed an ethics complaint against Loftus with the University of Washington, but the court held that facts relating to the University investigation were not private to [plaintiff] because they also directly relate to Loftuss personal and professional lives and because they also pertain though not as directly, to the repressed memory debate which is a matter of public interest.
[3] Loftus remarks were delivered during her acceptance speech upon receiving the American Psychological Societys 2001 William James Fellow Award for scientific achievement.
[4] An amicus curiae brief filed in this court on behalf of plaintiff asserts at some length that actions undertaken by Loftus and Guyer in the course of their investigation of the Skeptical Inquirer article violated federal standards relating to human subjects research. As noted above, the Court of Appeal rejected plaintiffs claim that the first amended complaint stated a cause of action based on defendants alleged breach of professional ethics, and plaintiff did not seek review of that ruling. Accordingly, the human-subjects-research issue raised by amicus curiae is not properly before us and will not be addressed.
[5] At the very outset of the Child Maltreatment article, the authors noted that [i]n addition to the dozens of articles and scholarly papers about this subject, the titles of several recent books reflect the polarized nature of this memory debate. In 1994, The Myth of Repressed Memory: False Memories and Allegations of Abuse, by Loftus and Ketchum, and Making Monsters: False Memories, Psychotherapy, and Sexual Hysteria, by Ofshe and Watters, were published. Whitfields Memory and Abuse: Remembering and Healing the Effects of Trauma appeared in 1995. In 1996 The Recovered Memory/False Memory Debate, by Pezdek and Banks, and Recovered Memories of Abuse, Assessment, Therapy, Forensics, by Pope and Brown, were published. . . . The debate has divided clinicians and experimental psychologists, with clinicians arguing that recovered memories of past traumas are often factual, and experimentalists arguing that they may be false memories derived from therapeutic suggestion . . . . (Child Maltreatment article, supra, at p. 91.)
The authors of the Child Maltreatment article then stated: The clearest conclusion from this debate is that much remains to be learned about human memory, how both traumatic and nontraumatic memories are preserved, how they can become unavailable to the person who experienced them, how they are sometimes discovered, and how they can become contaminated mixtures of both accurate and inaccurate information. Many questions remain unanswered concerning the false memory phenomenon as well. Who are the most susceptible to developing these false beliefs, and under what conditions are false memories most likely to occur? Once established, what is the stability of these false beliefs over time? Perhaps the most important question, and probably the most elusive to definitively answer, is whether differences can be observed between apparent recollections that have little grounding in reality and those that are more factual. (Child Maltreatment article, supra, at pp. 91-92.)
[6] Although Loftuss disclosure of plaintiffs initials occurred at a deposition in a case that was unrelated to the investigation or publication of the articles at issue, as described below (post, pp. 49-51) the disclosure was in direct response to a question relating to Lotuss investigation of plaintiff and the resulting controversy, and thus the potential imposition of liability on the basis of this statement also fell within the scope of the anti-SLAPP statute.
