Nygard v. Kustannusosakeyhtio Iltalehti

Filed 6/21/07 Nygard v. Kustannusosakeyhtio Iltalehti CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Irving S. Feffer, Judge. Reversed with directions.

Carlsmith Ball LLP, Malcolm S. McNeil, Ole R. Sandberg and Emily E. Brown for Defendants and Appellants.

Seyfarth Shaw LLP, Todd C. Hunt and Daniel Hargis for Plaintiffs and Respondents.

I. INTRODUCTION

This defamation action arises from a Finnish newspapers coverage of a press conference. The press conference was held at the Four Seasons Hotel near Beverly Hills in connection with the release of a motion picture, Into the Blue (Columbia TriStar 2005). The movie was filmed in the Bahamas. The newspaper and on-line articles contained statements about and suggestions of sexual conduct occurring at parties and publicity events attended by the films stars and crew. These events were held at the Bahamian residence of an internationally known clothing manufacturer and publishera fashion celebrity. The Bahamian property is recognized as one of the most beautiful and unique homes in the world. It has been featured on television programs including Life of Luxury. The trial court denied defendants motion to strike the complaint pursuant to Code of Civil Procedure^[1]section 425.16. The trial court found plaintiffs defamation claim did not arise from an act in furtherance of defendants constitutional free speech right in connection with a public issue. We reverse the order. We conclude a newspapers coverage of a press conference concerning the movie industry and sexual conduct within the confines of a renowned Bahamian residence owned by a fashion industry magnate was any act . . . in furtherance of [defendants] right of . . . free speech under the United States or California Constitution in connection with a public issue within the meaning of section 425.16, subdivision (b)(1). We further find plaintiffs failed to establish a probability of prevailing on the merits in that they failed to present any evidence defendants acted with actual malice. We direct the trial court to enter an order granting defendants special motion and striking the complaint. In addition, on remand, defendants are entitled to recover their attorneys fees and costs, including those incurred on appeal.

II. BACKGROUND

A. The Complaint

Plaintiffs are Nygrd, Inc., Nygrd International Partnership, and Peter Nygrd. Defendants are Alma Media Corporation, a Finnish corporation with its principal place of business in Helsinki, Kustannusosakeyhti Iltalehti (Iltalehti), a Finnish newspaper, and Kirpi Uimonen, an Iltalehti reporter. Alma Media Corporation publishes Iltalehti. Alma Media Corporation is not a party to this appeal.

Plaintiffs allege that on September 24, 2005, an article was published in Iltalehti, a tabloid magazine, that made defamatory statements about them. An abbreviated version of the article was also published on Iltalehtis Internet Web site. The articles referred to events plaintiffs hosted at their property in Nygrd Cay, Bahamas. The Bahamian property includes Mr. Nygrds residence and Nygrd entities corporate offices. The articles included disparaging statements as follows: Quoted a celebrity in Finnish as calling Plaintiffs resort property in Nygrd Cay, Bahamas dirty/tainted; Stated in Finnish that, Hollywood Stars were disgusted/shocked: Sex party at Nygrds home; Referred in Finnish to an event at Plaintiffs resort property in Nygrd Cay, Bahamas as a Perverse Party and published (in Finnish) that Hollywood stars were disgusted/shocked when visiting Peter Nygrds home; Quoted a celebrity in Finnish as stating, On the weekends, Nygrd would host parties that began with sports, massaging, manicures [and] pedicures . . . then things got wild. Its encouraged for everyone to behave wildly. Young women attend the Sunday party, they get naked and some have sex in the hot tubs with everyone watching. It was scary/disgusting.; Quoted a celebrity in Finnish as stating, Nygrds home during that time became party central. He is a 60-something man who lives in his own world in a tropical paradise. The place is fun, but at the same time unbelievably tasteless; and Quoted a celebrity in Finnish as stating, Even though the activities were disturbing, I spent a lot of time therethe place is like Disney World, in a weird way. These false statements, published with actual malice, caused damage to plaintiffs business and reputation.

An English translation of the September 24, 2005 Iltalehti newspaper article was attached as an exhibit to the complaint. The article reported, among other things, that Mr. Nygrd, a millionaire, had entertained movie stars and a film crew at his Bahamas villa while the movie Into the Bluewas being filmed on the islands. Among the actors who were entertained at Mr. Nygrds villa were Jessica Alba, Paul Walker, and Ashley Scott. The article stated, People were encouraged to behave in a crazy way. In the parties on Sundays there are young women that get undressed and may have sex in the Jacuzzi where anybody can see them. The films director, John Stockwell, was reported to have said, [T]he Nygrd house became the crews party center during the four months they were working in the Bahamas. Mr. Stockwell is apparently quoted as also saying: [Mr. Nygrd] is in his early sixties, a man who lives in his own never-never land in a tropical paradise. The place is a lot of fun, but at the same time in unbelievably bad taste. I could not live that way myself. [] . . . [S]trange things were happening when the local girls came to the party. Additionally, the article stated: Paul Walker[,] known for his films The Fast and the Furious[,] enjoyed being Nygrds guest, but he, too, considers the parties eccentric. [] . . . The place was like Disneyland, in a crazy way.

B. The Special Motion To Strike

1. Defendants Evidence

Defendants moved to strike the complaint pursuant to section 425.16. Defendants presented evidence Mr. Nygrd was a longstanding entertainment and fashion celebrity known throughout North America and an internationally prominent public figure with extensive entertainment industry contacts. Mr. Nygrd was: Chairman of Canadas largest women[s] clothing and fashion manufacturing company; the owner of N Magazine, a fashion magazine which is distributed throughout California and North America; and the founder of the internationally-known charity, The Nygrd Endowment Fund. Further, according to a complaint filed by plaintiffs in another defamation lawsuit on August 11, 1999, [Mr.] Nygrd, Nygrd, Inc., and Nygrd International [Partnership] are indistinguishable from each other as Nygrd has been for many years a public figure throughout North America . . . . According to Ken Grondin, the chief financial officer of Nygrd, Inc. and Nygrd International Partnership, these entities: manufacture and distribute womens fashion clothing throughout the world; conduct a substantial amount of business in the United States and California, and maintain several offices, warehouses, and distribution centers in California. Additionally, according to Mr. Grondin, Nygrd, Inc. and Nygrd International Partnership operate several warehouses in Gardena, California which distribute clothing and related products throughout the United States. In addition, Mr. Grondin stated the Nygrd companies also maintain offices and other facilities in Gardena and Marina del Rey. In 2005, the California facilities handled approximately 60 percent of all Nygrd products that were shipped in the United States. Mr. Grondin declared: The Nygrd Cay on-location movie filming in 2005 described in the [Iltalehti] article was hosted by the Nygrd Companies for public relations purposes. Although the event occurred at a facility which includes Mr. Nygrds Bahamas residence, the event was also held on behalf of the Nygrd Companies, which maintain offices at this location.

Ms. Uimonen, who authored the article in question, declared that the information in the article resulted from interview sessions involving five reporters at the Four Seasons Hotel near Beverly Hills. The sessions were arranged by the films distributor. The persons interviewed included actors, Ms. Alba, Ms. Scott, and Mr. Walker, and the director, Mr. Stockwell. The article was published one or two weeks before the film Into the Bluewas released in the United States and two months before it was released in Finland.

Defendants presented further evidence that at the time they published the articles in question: they did not doubt the veracity of the statements therein; no one had provided a contradictory version of the events described; and all interviewed individuals accounts were consistent. Ms. Uimonen, the reporter, declared: The statements contained in the Articles were based on statements made to me in interviews I conducted with the persons quoted therein. I have never doubted the veracity of the statements made in the Articles. None of the individuals I interviewed provided statements that contradicted the version of events described in the Articles. To the contrary, all the individuals I interviewed provided accounts that were consistent with the accounts of the other individuals I interviewed.

2. Plaintiffs evidence

Plaintiffs opposed the motion. Plaintiffs argued: defendants did not meet their initial burden as the article describes private events, not a public issue; there was a strong probability plaintiffs would prevail as percipient witnesses denied any sexual conduct at the parties in question; because discovery was stayed under subdivision (g) of section 425.16, the court should not require plaintiffs to demonstrate defendants acted with malice; and actual malice, that is, a reckless disregard for the truth, was established as defendants undertook no investigation and clearly exaggerated the facts when they described the events in question as sex parties.

In his declarationfiled as part of plaintiffs opposition to the special motion to strikeMr. Stockwell, the director, said: I saw nothing at Nygrd Cay that resembled the sex party events described in Ms. Uimonens article. The events I attended at Nygrd Cay were not perverse, nor was I shocked by anything that occurred there. To my knowledge no one was encouraged to behave in a crazy way, nor do I believe that to be true. To my knowledge, no one got undressed [or had] sex in the Jacuzzi where anybody can see them while I was visiting Nygrd Cay. [] . . . I have never been made aware of any allegations of this type of activity occurring at Nygrd Cay except in Ms. Uimonens article in Iltalehti Magazine. Mr. Stockwell did not declare he never made the statements attributed to him in the article.

Pamela Erickson is Nygrd, Inc.s Director of Marketing, Nygard.com USA. She was working at the companys facilities in the Bahamas during the filming of Into the Blue. She was present at Nygrd Cay at various times when members of the film crew visited. Ms. Erickson declared: I have never seen activities such as are described in Ms. Uimonens article [in] Iltalehti Magazine. This includes the activities purportedly described to Ms. Uimonen by Jessica Alba, John Stockwell, and Paul Walker. In fact, at no time did the events described in Ms. Uimonens magazine article occur at Nygrd Cay while members of the Into the Blue film crew, or anyone else for that matter, were present. [] . . . The events hosted at Nygrd Cay while the Into the Blue film crew attended were not perverse, shocking, wicked, crazy, wild, eccentric, or in any way indecent. These events were corporate events hosted by the Nygrd Companies. Attendees of these events were not encouraged by Plaintiffs or anyone else to behave in a crazy or wild manner. I never saw, heard of, or otherwise became aware of people get[ting] undressed at these events. Likewise, I never saw, heard of, or otherwise became aware of anyone hav[ing] sex in the Jacuzzi where anybody can see them. Simply stated, the events described in the article did not occur, and it is unfathomable that they would occur at events hosted by Plaintiffs. [] . . . I have never been made aware of any allegations of this type of activity occurring at Nygrd Cay except in Ms. Uimonens article in Iltalehti Magazine. (Quotation marks substituted for underscoring.)

Declarations to the same effect were filed by Nygrd, Inc.s construction administrator, Patricia Landry, and its purchase controller/loss prevention officer, Ana Garcea. For example, Ms. Landry likewise declared she was working at the companys Bahamas facility when Into the Blue was being filmed and was present at Nygrd Cay at various times when the film crew visited. Ms. Landry declared: I have never seen activities such as are described in Ms. Uimonens article [in] Iltalehti Magazine. This includes the activities purportedly described to Ms. Uimonen by Jessica Alba, John Stockwell, and Paul Walker. In fact, at no time did the events described in Ms. Uimonens magazine article occur at Nygrd Cay while members of the Into the Blue film crew, or anyone else for that matter, were present. [] . . . The events hosted at Nygrd Cay while the Into the Blue film crew attended were not perverse, shocking, wicked, crazy, wild, eccentric, or in any way indecent. These events were corporate events hosted by the Nygrd Companies. Attendees of these events were not encouraged by Plaintiffs or anyone else to behave in a crazy or wild manner. I never saw, heard of, or otherwise became aware of people get[ting] undressed at these events. Likewise, I never saw, heard of, or otherwise became aware of anyone hav[ing] sex in the Jacuzzi where anybody can see them. The events described in the article did not occur, and I do not believe that they would occur at events hosted by Plaintiffs. [] . . . I have never been made aware of any allegations of this type of activity occurring at Nygrd Cay except in Ms. Uimonens article in Iltalehti Magazine.

Ms. Erickson additionally declared, [Mr. Nygrds residence] is recognized as one of the most beautiful and unique homes in the world by Lifestyles of the Rich [and] Famous, Victory Gardens, Oprah, Life of Luxury, and . . . Worlds Most Extreme Homes. (Quotation marks substituted for underscoring.) It was filmed in 2004 for the television program Life of Luxury. It has also been the site of the Bahamas Film Festival, movie premieres, and the Nygrd Cay Songwriters Festival.

III. DISCUSSION

A. Standard Of Review And Burdens Of Proof

A special motion to strike may be filed in response to a meritless suit filed primarily to chill the defendants exercise of First Amendment rights. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Section 425.16 authorizes a court to summarily dismiss such meritless suits. (Stats. 1992, ch. 726,  2, pp. 3523-3524.) The purpose of the statute is set forth in section 425.16, subdivision (a), as follows: The Legislature finds and declares 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. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. . . . Under section 425.16, A cause of action against a person arising from any act . . . in furtherance of the . . . right of petition or free speech . . . in connection with a public issue must be stricken unless the court finds a probability that the plaintiff will prevail on whatever claim is involved. ( 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415.)

Section 425.16, subdivision (e) provides: As used in this section, act in furtherance of a persons 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 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. (Italics added.) A specific public interest showing is required for acts claimed to fall under subdivisions (e)(3) and (4), but not for acts alleged to fall under subdivisions (e)(1) and (2). (Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1111-1123; Du Charme v. International Brotherhood of Electrical Workers, Local 45 (2003) 110 Cal.App.4th 107, 112-114.) Section 425.16, subdivision (e), defines acts in furtherance of free speech or petition rights in connection with a public issue as including four categories of conduct. The Court of Appeal has held: [T]he categories enumerated [in section 425.16, subdivision (e)] are not all-inclusive. [] The acts in furtherance of a persons right to free speech specified by the statute are preceded by the word includes. The word includes is ordinarily a term of enlargement rather than limitation. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101.) The use of includes implies that other acts which are not mentioned are also protected under the statute. (Doyle v. Board of Supervisors (1988) 197 Cal.App.3d 1358, 1364.) (Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175.)

When a special motion to strike is made, the trial court must consider two components. First, the court must consider whether the moving defendant has carried its burden of showing that the lawsuit falls within the purview of section 425.16; i.e., arises from protected activity. The moving defendant has the initial burden of establishing a prima facie case that plaintiffs cause of action arises out of conduct in the furtherance of petition or free speech rights. ( 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, overruled on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10.) The moving defendant has no obligation to demonstrate that the plaintiffs subjective intent was to chill the exercise of constitutional speech or petition rights. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 66-67.) Nor must a defendant show that the action had the effect of chilling free speech or petition rights. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75-76.)

Second, once the defendant meets this burden, the obligation shifts to the plaintiff to establish a probability that she or he will prevail on the merits. ( 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115.) The Supreme Court has explained the plaintiffs burden: 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. (Briggs v. Eden Council for Hope & Opportunity[, supra,] 19 Cal.4th [at p.] 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274.) 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. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365[, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5].) [] In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendants contrary showing, if any, does not defeat the plaintiffs as a matter of law. This determination establishes probable cause to bring the claim . . . . (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, orig. italics; accord, Taus v. Loftus (2007) 40 Cal.4th 683, 713.) As the Court of Appeal recently observed, The process the court uses in determining whether the plaintiff has shown a probability of prevailing on the merits is similar to the process used in determining motions for nonsuit, directed verdict or summary judgment. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) We conduct an independent review of the trial courts decision. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

B. Evidentiary Objections

Defendants raised evidentiary objections to declarations plaintiffs filed in opposition to the special motion to strike. Defendants repeatedly asserted the following objection: Lack of relevance; lack of foundation, conclusion, and speculation in that the witness has not established that she was present at the time of the events to which she refers. In addition, with respect to the following statement, which is repeated in several declarations, defendants raised a relevance objectionI have never been made aware of any allegations of this type of activity occurring at Nygrd Cay except in Ms. Uimonens article in Iltalehti Magazine. The trial court ruled as follows: The court sustains defendants evidentiary objections in their entirety on the ground that the declarants have not established that they were present at the time of the events to which the articles refer. On appeal, plaintiffs contend that because the newspaper article is vague as to the timing of the events discussed, it was impossible for the witnesses to identify any specific date as that on which the activities described occurred.

We review the trial courts evidentiary rulings for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078; People v. Alvarez (1996) 14 Cal.4th 155, 201.) We agree with plaintiffs that the evidentiary objections should have been overruled. The Iltalehti article is uncertain as to the number and timing of the parties. It refers to: several occasions last summer . . . while the movie Into the Bluewas being filmed on the islands; there were parties at the villa at weekends; in the parties on Sundays; and the Nygrd house became the [Into the Blue] crews party center for [the four months they were working in the Bahamas]. Mr. Stockwell declared he visited plaintiffs Nygrd Cay facilities and residence during the period in 2004 when Into the Bluewas filming in the Bahamas. Ms. Erickson declared: I was working at the [Nygrd] facilities in the Bahamas periodically during the time that the movie Into the Blue was being filed in the Bahamas. I recall members of the film crew, including actors Jessica Alba, Paul Walker, and Ashley Scott, and director John Stockwell, visiting [p]laintiffs Nygrd Cay facilities and residence during the time this movie was being filmed. I was present at various times when the members of the film crew visited the Nygrd Cay location. (Underscore omitted.) Similarly, Ms. Landrys and Ms. Garceas declarations state: I was working at the [Nygrd] facilities in the Bahamas during the time that the moving Into the Blue was being filmed in the Bahamas. I recall members of the film crew . . . visiting [p]laintiffs Nygrd Cay facilities and residence during the time this movie was being filmed. I was present at various times when the members of the film crew visited the Nygrd Cay location. (Underscore omitted.) Given the articles lack of specificity, the declarations suffice to show the declarants were from time to time present during the general time frame described in the articlethat is, while Into the Bluewas filming in the Bahamas.

C. Public Issue Or An Issue Of Public Interest

Defendants assert they made a threshold showing that plaintiffs cause of action arose out of a written . . . statement or writing . . . in connection with an issue of public interest within the meaning of section 425.16, subdivision (e)(3). Defendants raised the issue of the applicability of section 425.16, subdivision (e)(3) in the trial court. Defendants specifically adverted to section 425.16, subdivision (e)(3) in the points and authorities filed with the special motion to strike and in the reply. Further, the application of section 425.16, subdivision (e)(3) is referred to in the opening and reply briefs. In the opening brief, defendants relied on cases that interpret section 425.16, subdivision (e)(3) including: Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807; and Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647-653, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at page 68, footnote 5. The section 425.16, subdivision (e)(3) issue has been preserved and appropriately briefed.

Plaintiffs advocate adopting a narrow definition of an issue of public interestspecifically: government matters and private conduct that affect a community in a manner similar to a government entity; a statement that in some manner contributes to public debate; and activity that, at a minimum, contributes in some manner to public issues that have some substantive importance, either politically, socially or to a particular community. Plaintiffs argue the meaning of an issue of public interest must be linked to the purpose of section 425.16to promot[e] participation in matters of public significance. We reject that position.

The issue of public interest element is to be construed broadly. ( 425.16, subd. (a); Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at p. 808.) Further, in Navellier v. Sletten, supra, 29 Cal.4th at page 91, our Supreme Court held: [W]e have declined to hold that section 425.16 does not apply to events that transpire between private individuals (Briggs [v. Eden Council for Hope & Opportunity], supra, 19 Cal.4th at p. 1116) and have explicitly rejected the assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government (ibid., quoting Braun v. Chronicle Publishing Co. [(1997)] 52 Cal.App.4th [1036,] 1046-1047). Plaintiffs arguments to the contrary are not persuasive. Section 425.16, subdivision (b)(1) states in 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 . . . . (Italics added.) News reporting is an act of free speech. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240; Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at p. 1046.) Moreover, there is a public interest in newspaper coverage of a press conference in connection with the international release of a film and sexual conduct occurring during the filming in the renowned Bahamian residence of an internationally known clothing manufacturer. The film and fashion industries, as well as the lifestyle of someone rich and famous, are all matters of interest to the news-consuming public.

Sexual conduct and lifestyles of publishers such as Mr. Nygrd are matters of ongoing public interest. (Bradlee, A Good Life: Newspapering and Other Adventures (1995) p. 159 [former newspaper editors assignation with his second wife while still married to his first spouse]; Martin, Henry and Clare: An Intimate Portrait of the Luces (1991) pp. 189-190, 247-258, 324 [publishers spouses liaisons with a labor leader, Army general, and other men in the United States and Europe]; Miller, Bunny: The Real Story of Playboy (1984) pp. 145-147 [then middle-aged publisher Hugh Hefners sexual relationship with a college freshman]; Nasaw, The Chief: The Life of William Randolph Hearst (2000), p. 339 [publishing magnates lengthy sexual relationship with an actor].) In a similar vein, the public has a profound interest in the sexual lifestyles of actors. (Andersen, An Affair To Remember (1997) pp. 154-155, 163 [decades long love affair between Katharine Hepburn and Spencer Tracy]; Hudson, Rock Hudson: His Story (1986) pp. 34-35 [actor Rock Hudsons relationships with other men]; Morris, Dutch (1999) p. 282 [actors relationships with women between marriages]; Woodward, Wired: The Short Life and Fast Times of John Belushi (1984) pp. 243, 400 [comedian John Belushis sexual relationships with women other than his wife].) These lifestyle choices and worldviews are grist for the controversy as to the role of media in our culture. (Colson, How Now Shall We Live? (1999) pp. 237-244 [changing place of sex in society]; Dobson, Children at Risk: The Battle for the Hearts and Minds of Our Kids (1990) p. 209 [television magnate Ted Turners view that Christianity is a religion for losers as being emblematic of views of the cultural Hollywood elites]; Knight, The Age of Consent: The Rise of Relativism and the Corruption of Popular Culture (1998) p. 122 [changing nature of films].) The subjects raised at the news conference are matters of public interest within the meaning of section 425.16, subdivision (e)(3) when that provision of law is broadly construed.

Decisional authority supports our conclusion. In Seelig v. Infinity Broadcasting Corporation, supra, 97 Cal.App.4th at pages 807-808, for example, Division Five of the Court of Appeal for the First Appellate District found there was a public interest in an on-air talk radio program discussing a television network broadcast, Who Wants to Marry a Millionaire. Our colleague Associate Justice Mark B. Simons wrote: The offending comments arose in the context of an on-air discussion between the talk-radio cohosts and their on-air producer about a television show of significant interest to the public and the media. This program was a derivative of Who Wants to Be a Millionaire, which had proven successful in generating viewership and advertising revenue. Before and after its network broadcast, Who Wants to Marry a Multimillionaire generated considerable debate within the media on what its advent signified about the condition of American society. One concern focused on the sort of person willing to meet and marry a complete stranger on national television in exchange for the notoriety and financial rewards associated with the Show and the presumed millionaire lifestyle to be furnished by the groom. By having chosen to participate as a contestant in the Show, plaintiff voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media. (Ibid.) Similarly, in Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050, 1055, 1064, Division Four of this appellate district held the issue of public interest requirement was met where the plaintiff: participated in a call-in radio talk show; was told he was too old for the target audience; and complained on the air that he was being discriminated against because of his age. The radio show was described as, [A]n extremely popular singles-oriented radio talk show that is broadcast in Los Angeles each weekday . . . . (Id. at p. 1055.) Our Division Four colleagues concluded, [T]he alleged tortious conduct occurred in connection with a live call-in radio talk show addressing subjects of interest to the public at large. (Id. at p. 1064.) We conclude defendants carried their burden of showing the lawsuit falls within the purview of section 425.16. Defendants have established that plaintiffs cause of action arises out of defendants acts in furtherance of their free speech rights. ( 425.16, subd. (b)(1).)

Plaintiffs assert defendants articles concern only celebrity gossip, which is not an issue of public interest. They rely on two federal District Court decisionsRogers v. Home Shopping Network, Inc. (C.D.Cal. 1999) 57 F.Supp.2d 973, 985, footnote 7, and Condit v. National Enquirer, Inc. (E.D.Cal. 2002) 248 F.Supp.2d 945, 948-954for the proposition that celebritywatching is not an issue of public interest within the meaning of section 425.16. In Rogers, entertainer Mimi Rogers filed a libel action against the Home Shopping Network and the National Enquirer. Ms. Rogers filed an application to defer the special motion to strike hearing so she could pursue discovery before filing an opposition. (Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2d at p. 974.) The United States District Court for the Central District of California concluded the hearing on the special motion to strike should be continued to allow Ms. Rogers time to conduct discovery. (Id. at p. 985.) The district court held that discovery issues in the special motions to strike context were controlled by rule 56(f) of the Federal Rules of Civil Procedure (28 U.S.C.), the federal summary judgment provision.

The district court also noted, in dicta, that the National Enquirer may have trouble meeting the public issue or issue of public interest element: California decisions seem clear that the fact that a statement appeared in a newspaper is insufficient to satisfy this element. [Citations.] [] It is true that California courts have found the public issue or issue of public interest element to be satisfied by speech on many different subjects. [Citations.] However, none of these cases held that celebrity-watching is inherently a public issue. That a celebrity might be a public figure for purposes of the First Amendment should not mean that all speech about that celebrity is necessarily a public issue or an issue of public interest for purposes of [section] 425.16[, subdivision] (e). This is a hurdle National Enquirer must clear when the Court considers the special motion to strike. (Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2dat p. 985, fn. 7.) Plaintiffs rely on this dicta in support of their contention that celebrity watching does not meet the public interest requirement of section 425.16, subdivision (e)(3).

In Condit, Carolyn Condit, the wife of former United States Congressman Gary A. Condit, brought a libel action against the National Enquirer. The tabloid had published articles claiming Ms. Condit had verbally attacked Mr. Condits intern, the late Chandra Levy, before she disappeared. (Condit v. National Enquirer, Inc., supra, 248 F.Supp.2d at p. 948.) The United States District Court for the Eastern District of California denied a special motion to strike. (Id. at p. 954.) The district court found there was no issue of public interest because: [W]hether the statements concerned a matter of public interest cannot be determined on the basis of media coverage, notoriety or potential newsworthiness (id. at p. 953); the plaintiff was not a public figure; and [t]he criminal investigation of the disappearance of Ms. Levy is not necessarily a political or community issue in which public opinion and input is inherent and desirable . . . . (id. at p. 954).

Those decisions, of course, are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 299; McMullen v. Haycock (2007) 147 Cal.App.4th 753, 758.) In Rogers, the statements that served as the basis of the plaintiffs libel action are never detailed. (Rogers v. Home Shopping Network, Inc., supra, 57 F. supp.2d at pp. 974-985.) Moreover, all the district court held was that celebrity watching was not inherently a matter of public interest for purposes of section 425.16a proposition that makes sense. But as previously discussed, this case does not involve mere celebrity watching as was the subject of discussion in Rogers. (Id. at p. 985, fn. 7.) As to Condit, coverage of a murder investigation involving an alleged lover of a married member of Congress is a matter of public interest. In any event, we disagree with the analyses in Rogers and Condit as they relate to section 425.16, subdivision (e)(3). It bears repeating that section 425.16 applies to any act in furtherance of free speech ( 425.16, subd. (b)(1)), including any written or oral statement or writing . . . in connection with an issue of public interest ( 425.16, subd. (e)(3)) and that the statute must be construed broadly. ( 425.16, subd. (a).) Moreover, as noted above, our Supreme Court has rejected the notion that, [T]he only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government. [Citation.] (Brigs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1116; accord, Navellier v. Sletten, supra, 29 Cal.4th at p. 91.)

D. Place Open To The Public Or Public Forum

We turn to the question whether defendants writings were made in a place open to the public or a public forum. ( 425.16, subd. (e)(3).) We conclude both the newspaper and the Web site are places open to the public or public forums. The Supreme Court and the Courts of Appeal have held that a Web site accessible to the public is a public forum for purposes of section 425.16. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, ___ [59 Cal.Rptr.3d 48, 55]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895; Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1007.) As the Court of Appeal observed in Huntingdon Life Sciences, Inc.: Statements on [defendants] Web site are accessible to anyone who chooses to visit the site, and thus they hardly could be more public. [Citation.] (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1247, quoting Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895.) Defendants Web site can be viewed by anyone with access to the Internet. Therefore, it is a place open to the public and a public forum.

The Courts of Appeal have disagreed whether a newspaper is a public forum. (Compare Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 [Gay and Lesbian Times clearly qualifies as a public forum]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478 [homeowners association newsletter was a public forum]; with Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130-1131 [member associations newsletter was not a public forum]; Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1131, disapproved on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10 [San Jose Mercury newspaper was not a public forum, citing Lafayette Morehouse, Inc.]; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863, fn. 5 [in dicta, dubious whether the San Francisco Chronicle newspaper was a public forum].) The courts concluding a newspaper is not a public forum have relied on the fact that editors and publishers control the content. (E.g., Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th at p. 863, fn. 5.) Keeping in mind that the statute must be construed broadly ( 425.16, subd. (a)), we agree with the conclusion the Court of Appeal reached in Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at page 478: Read in context of the entire statutory scheme, a public forum includes a communication vehicle that is widely distributed to the public and contains topics of public interest, regardless whether the message is uninhibited or controlled. As is true of Web sites, a newspaper that is accessible to anyone who chooses to read it hardly could be more public. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1247; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895.) Thus, defendants met their burden of proof. Given the foregoing, we need not address the applicability of section 425.16, subdivision (e)(4), which served as the sole basis of the trial courts ruling.

E. Probability Of Prevailing

1. Overview

The burden shifted to plaintiffs to establish a probability of prevailing on their libel claim. ( 425.16, subd. (b)(1).) As discussed above, plaintiffs were required to demonstrate the complaint was legally sufficient and supported by a facially sufficient evidentiary showing. (Taus v. Loftus, supra, 40 Cal.4th at p. 713; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) Plaintiffs have not met that burden with respect to the actual malice element of their claim.

Our Supreme Court has described the elements of a defamation claim: The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 529, p. 782, citing Civ. Code, 45-46 and cases.) (Taus v. Loftus, supra, 40 Cal.4th at p. 720.) In addition, because plaintiffs are public figures, a status they do not dispute, they must also establish defendants acted with actual malice; with knowledge the republished statements were false or with reckless disregard of their falsity. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280; Khawar v. Globe International Inc. (1998) 19 Cal.4th 254, 262; Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.)The parties agree that only falsity and actual malice are at issue here. Plaintiffs do not argue they are not public figures. More critically, plaintiffs never made the argument they are not public figures in the trial court where defendants could have presented evidence on the subject. On appeal, plaintiffs argue they are excused from demonstrating that defendants acted with malice because no discovery has been conducted. Plaintiffs base their contention on what we will describe later as a misanalysis of Metabolife Intern., Inc. v. Wornick (9th Cir. 2001) 264 F.3d 832, 845-846. Plaintiffs reason that once the complaint was filed they could not use any discovery methods because of section 425.16, subdivision (g).^[2]Based on their inability to use discovery methods, plaintiffs argue that need not make a showing defendants acted with actual malice. Moreover, plaintiffs argue they met the burden of providing a prima facie case of actual malice. But plaintiffs never argue they are not public figures. Thus, section 425.16 requires plaintiffs establish a prima facie case of falsity and actual malice to avoid dismissal.

2. Falsity

Plaintiffs must establish falsity; truth is a complete defense to a defamation claim. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132-1133; Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 552-553.) The Court of Appeal has explained: In all cases of alleged defamation, whether libel or slander, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose. (Smith v. Maldonado [(1999)] 72 Cal.App.4th [637,] 646.) [T]he defendant need not justify the literal truth of every word of the allegedly defamatory

matter. It is sufficient if the substance of the charge is proven true, irrespective of slight inaccuracy in the details, so long as the imputation is substantially true so as to justify the gist or sting of the remark. (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180-1181, [some italics added].) (Raghavan v. Boeing Co., supra, 133 Cal.App.4th at pp. 1132-1133.) However, a defendant is liable for republication of a defamatory statement. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1243; Khawar v. Globe International, Inc., supra, 19 Cal.4th at p. 268.) As one treatise explains: The defense of truth does not permit a defendant to escape liability by pleading that he or she accurately repeated what another said. This amounts merely to republication, for which courts hold defendants liable. [Citation.] (Cal. Civil Practice (Thompson/West 2003) Torts, 21:27; accord, 5 Witkin, Summary of Cal. Law (10th ed. 2005) 537, p. 788.) This is true even if the defendant cites the source of the defamatory statement or that it is merely repeating what someone else said. (See Shively v. Bozanich, supra, 31 Cal.4th at p. 1243; Gilman v. McClatchy (1896) 111 Cal. 606, 612.)

Plaintiffs presented evidence tending to establish falsitythat the sexual and other conduct described in defendants newspaper and on-line articles did not occur; that there were no sex parties. Mr. Stockwell, the films director, and Nygrd, Inc. employees, Ms. Erickson, Ms. Landry, and Ms. Garcea, were present at Mr. Nygrds residence at various times when the actors and crew were also guests. None of the declarants observed any sexual or other activity of the type reported or implied in defendants articles. This evidence tends to establish the events as described in the articles never occurred. A trier of fact could reasonably infer that Mr. Stockwell, Ms. Erickson, Ms. Landry, or Ms. Garcea would have seen the sexual and other activity described in the articles if it had in fact occurred. It is true, as defendants point out, that only Mr. Stockwell was a source quoted in the articles; moreover, Mr. Stockwell did not deny making the statements attributed to him. But the immediate question is not whether Mr. Stockwell and others made the statements quoted in the articles, but whether their assertions are true. (Shively v. Bozanich, supra, 31 Cal.4th at p. 1243; Khawar v. Globe International, Inc., supra, 19 Cal.4th at p. 269.) As discussed above, plaintiffs evidence would support an inference of falsity.

We turn to the question whether defendants evidence defeats plaintiffs showing as a matter of law. (Taus v. Loftus, supra, 40 Cal.4th at p. 713; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) In support of their special motion to strike, defendants presented evidence that at the time they published the article in question: they did not doubt the veracity of the statements repeated therein; no one had provided a contradictory version of the events described; and all of the accounts of interviewed individuals were consistent. This was not direct evidence the events described in fact occurred. At best, it created a triable issue as to whether the events occurred as described in defendants articles. Defendants evidence was insufficient to defeat plaintiffs evidence of falsity as a matter of law. (See, e.g., Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1439; Ross v. Kish, supra, 145 Cal.App.4th at pp. 202-203; see generally, Soukup v. Law Offices of Herbert Hafif supra, 39 Cal.4th at p. 269, fn. 3; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.)

3. Actual Malice

Our Supreme Court has explained: [A]ctual malice means that the defamatory statement was made with knowledge that it was false or with reckless disregard of whether it was false or not. (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 280.) Reckless disregard, in turn, means that the publisher in fact entertained serious doubts as to the truth of his publication. (St. Amant v. Thompson [(1968)] 390 U.S. 727, 731.) To prove actual malice, therefore, a plaintiff must demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement. (Bose Corp. v. Consumers Union of U.S., Inc. [(1984)] 466 U.S. 485, 511, fn. 30; see also McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860.) [] Actual malice is judged by a subjective standard; otherwise stated, there must be sufficient evidence to permit the conclusion that the defendant . . . had a high degree of awareness of . . . probable falsity. (Harte-Hanks Communications v. Connaughton [(1989)] 491 U.S. 657, 688.) To prove this culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards. (Ibid.; see also Readers Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 257-258.) When . . . a finding of actual malice is based on the republication of a third partys defamatory falsehoods, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient. (Harte-Hanks Communications v. Connaughton, supra, 491 U.S. 657, 688.) Nonetheless, the actual malice finding may be upheld where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports (ibid.), and the republisher failed to interview obvious witnesses who could have confirmed or disproved the allegations (id. at p. 682) or to consult relevant documentary sources (id. at pp. 683-684 [failure to listen to tape] ). (Khawar v. Globe International Inc., supra, 19 Cal.4th at pp. 275-276.)

Similarly, in Readers Digest Assn. v. Superior Court, supra, 37 Cal.3d at pages 257-258, our Supreme Court held: [A]ctual malice can be proved by circumstantial evidence. [E]vidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendants recklessness or of this knowledge of falsity. (Goldwater v. Ginzburg (2d Cir. 1969) 414 F.2d 324, 342; Widener v. Pacific Gas & Electric Co. [(1977)]75 Cal.App.3d 415, 434[, disapproved on another point in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn. 9].) A failure to investigate [see Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d 415, 435), anger and hostility toward the plaintiff [id., at p. 436), reliance upon sources known to be unreliable (Curtis Publishing Co. v. Butts [(1967)]388 U.S. 130, 156; Pep v. Newsweek, Inc. (S.D.N.Y. 1983) 553 F.Supp. 1000, 1002), or known to be biased against the plaintiff (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640; Burns v. McGraw-Hill Broadcasting Co., Inc. (Colo. 1983) 659 P.2d 1351, 1361-1362)such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication. [] We emphasize that such evidence is relevant only to the extent that it reflects on the subjective attitude of the publisher. (St. Amant v. Thompson, supra, 390 U.S. 727, 732-733; Pep v. Newsweek, Inc., supra, 553 F.Supp. 1000, 1003; Velle Transcendental Research Assn v. Sanders (C.D.Cal. 1981) 518 F.Supp. 512, 518-519.) The failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. (See St. Amant v. Thompson, supra, 390 U.S. 727, 733; Beckley Newspapers v. Hanks (1967) 389 U.S. 81, 84-85.) Similarly, mere proof of ill will on the part of the publisher may likewise be insufficient. (Gomes v. Fried (1982) 136 Cal.App.3d 924, 934-935.) (Fn. omitted.)

Plaintiffs contend there is circumstantial evidence of actual malice in that: defendants failed to investigate and greatly exaggerated and sensationalized the facts as related to Ms. Uimonen when they described the events in question as sex parties; Ms. Uimonen was a tabloid journalist; Iltalehti was a tabloid newspaper and Web site; and as a result of their tabloid status, they were motivated to sensationalize the statements related in the press conference at the Four Seasons Hotel in order to attract readers.

There is no evidence that would support an actual malice finding. All of the people Ms. Uimonen interviewed gave consistent accounts of the events at plaintiffs Bahamian property. No one offered any information tending to contradict the statements attributed to Mr. Stockwell, Ms. Alba, Ms. Scott, and Mr. Walker. The inference was clear from the reported statements that sexual activity was occurring at the Nygrd Cay parties and events. There was nothing to indicate the allegations were false. There were no obvious reasons for defendants to doubt the accuracy of the information. (See Khawar v. Globe International Inc., supra, 19 Cal.4th at p. 276.) There was no evidence defendants deliberately decided not to acquire knowledge of facts that might show the claims were false. (Compare, e.g. Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1052-1053.) There was no evidence defendants knew the statements were false or entertained a serious doubt as to their truth.

Finally, plaintiffs contend they were excused from demonstrating that defendants acted with actual malice because they could not conduct discovery on that issue. Plaintiffs rely on a Ninth Circuit decision, Metabolife Intern., Inc. v. Wornick, supra, 264 F.3d at pages 845-846. In Metabolife Intern., Inc., the plaintiff, a drug manufacturer, sued a journalist, a television news station, the network affiliates parent corporation, and a medical school professor. The station aired a series of reports alleging the drug manufacturers founder had been convicted of methamphetamine manufacturing and challenged the safety of the plaintiffs product, Metabolife 356. (Id. at p. 837.) The defendants filed a special motion to strike and the district court ultimately refused to permit pre-hearing discovery. (Id. at pp. 837-838.)

The Ninth Circuit panel held the district court abused its discretion in refusing to permit plaintiff to conduct discovery as permitted by the summary judgment provision applicable in federal litigatio