CHRISTIAN RESEARCH INSTITUTE v. ALNOR

Filed 2/28/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

STORY CONTINUED FROM PART I..

1. Fabrication

As we have noted, malice is shown where a story is fabricated by the defendant, [or] is the product of his imagination . . . . (St. Amant, supra, 390 U.S. at p. 732.) In the present case, plaintiffs have provided no direct evidence that Alnor fabricated his conversation with Debra. An inference of fabrication can be drawn, however, from the FOIA responses. Specifically, one may reasonably infer from the USPSs inability to locate records of an investigation centering on either of the plaintiffs that no investigation had been launched. From that, one may reasonably infer that Debra in the Pasadena postal inspectors office would not have told Alnor an investigation had been launched, giving rise to the further inference that Alnor either never spoke with anyone named Debra, or that he simply attributed statements to Debra which he knew she never made. Although an inference of malice arises, the question arises whether this inference is sufficiently strong to command the unhesitating assent of every reasonable mind. (Copp, supra, 45 Cal.App.4th at p. 846.) We conclude it is not.

To demonstrate a probability of prevailing under the anti-SLAPP statutes second prong, the plaintiff must make a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Thus, in considering whether plaintiffs have met their burden of demonstrating a probability of prevailing on the actual malice issue here, we must determine whether, if credited, their evidence is sufficient to sustain a judgment rendered in their favor by the trier of fact. Reviewing courts must reject challenges to the sufficiency of the evidence if substantial evidence supports the judgment. (See McMahon v. Albany Unified School Dist. (2002) 104 Cal.App.4th 1275, 1282.) The requirement that a public figure plaintiff demonstrate actual malice, however, calls for a different analysis.

Normal principles of substantial evidence review do not apply to the appellate courts independent review of an actual malice determination in a First Amendment libel case. [fn. omitted.] (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846.) The question whether the evidence in the record in a defamation case is of the convincing clarity required to strip the utterance of First Amendment protection is not merely a question for the trier of fact. Judges, as expositors of the Constitution, must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice. (Bose, supra, 466 U.S. at p. 511, italics added.) Accordingly, a reviewing court is not bound to consider the evidence of actual malice in the light most favorable to respondents or to draw all permissible inferences in favor of respondents. To do so would compromise the independence of our inquiry. [T]he constitutional responsibility of independent review encompasses far more than [an] exercise in ritualistic inference granting. (McCoy, at p. 846, italics added.) Independent review is applied with equal force in considering whether a plaintiff has established a probability of demonstrating malice by clear and convincing evidence in opposing an anti-SLAPP motion. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357-358; see also Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950 (Beilenson).)

Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172 (Fletcher) applied independent review where the evidence supported an inference the defendant fabricated a libelous statement. There, the plaintiff was a city council member and former member of an agency that helped low income persons save money on energy. In a series of published articles, the defendant newspaper and reporter accused the plaintiff of having been involved with Weathermaster, a company attempting to contract with the agency at the same time the plaintiff sat on the agencys board. Recognizing that plaintiff had resigned from the agencys board on March 9, defendants ran an article that quoted, in bold and oversize type, a former Weathermaster salesperson as stating: Theres absolutely no doubt in my mind that [the plaintiff] was involved in Weathermaster before March 1. (Id. at p. 181.) At trial, however, the former salesperson testified that he had doubt in my mind on whether the plaintiff had been involved with Weathermaster at the time. (Id. at p. 188.) This testimony coincided with the reporters handwritten notes of the salespersons interview, which quoted the salesman as stating: There is no, absolutely I have doubt in my mind that [the plaintiff] was involved in Weathermaster before March 1. (Ibid.) The reporter, however, testified he accurately quoted the salesperson but inadvertently omitted the word no in the second clause of the sentence in his notes. (Ibid.) Following a jury verdict awarding damages to the plaintiff, the trial court granted the defendants motion for judgment notwithstanding the verdict.

On appeal, the plaintiff in Fletcher argued the evidence supported the finding of actual malice because the jury could reasonably infer that defendant fabricated the story because of the discrepancy between the published article and the reporters notes. The Court of Appeal rejected this argument: Although the conflict between [the reporters] notes and what [the reporter] wrote is troubling, we do not think it demonstrates with convincing clarity that [the reporter] believed the allegations against [the plaintiff] were unfounded. (Fletcher, supra, 216 Cal.App.3d at p. 188.) The court found it improbable the reporter would have fabricated the quote to support his story because he had obtained information regarding the plaintiffs purportedly improper activities from other sources. (Id. at p. 189.) In its independent review of the record, the court acknowledged evidence demonstrating the reporter did not like the plaintiff, and specifically noted that the challenged articles were less than objective and [c]learly contained factual errors. (Ibid.) Nonetheless, the court concluded the plaintiff had failed to provide clear and convincing evidence of malice.

As we noted above, the USPS FOIA response gives rise to an inference Alnor fabricated his conversation with Debra at the Pasadena postal inspectors office. This inference, however, lacks sufficient strength to meet the clear and convincing standard.

For example, the USPS FOIA response does not unequivocally state the USPS has no documents concerning an investigation of either of the plaintiffs, but only that the responder could not locate any records of any investigation in her search of the USPS OIG, Investigations Office and the Hotline complaint desk . . . .^[1] Thus, the response does not purport to foreclose the possibility that documents pertaining to the investigation Debra mentioned may exist, but are kept in a location other than those searched.

The USPS FOIA response also does not negate the possibility that Alnor simply misunderstood Debra. Specifically, Debras statement that she was aware of the claims in Hanegraaffs fundraising letter and that her office was investigating it on the basis of mail fraud, was ambiguous. One could reasonably interpret the statement to mean either that her office was investigating whether the purported misdirection of mail described in the CRI fundraising letter constituted mail fraud, or was investigating whether the letter itself constituted mail fraud. Plaintiffs do not contend, and have cited no evidence suggesting, Alnor considered Debras statement to be the former. Alnor might have carelessly interpreted Debras statement, but this would not establish malice. Gross or even extreme negligence will not suffice to establish actual malice; the defendant must have made the statement with knowledge that the statement was false or with actual doubt concerning the truth of the publication. (Annette F., supra, 119 Cal.App.4th at p. 1167.)

We conclude any inference from the USPS FOIA response that Alnor fabricated his conversation with Debra is not sufficiently strong to meet the clear and convincing evidence standard.

2. Slanted Reporting

We note Debras representation that her office had initiated an investigation of the CRI letter on the basis of mail fraud differs from Alnors report that plaintiffs were the targets of a federal mail fraud investigation. We conclude this discrepancy does not demonstrate actual malice.

The term mail fraud is typically used as shorthand for a violation of the federal mail fraud statute, title 18 United States Code section 1341. (See, e.g., In re Utz (1989) 48 Cal.3d 468, 473.) Because plaintiffs originated the letter, they naturally would fall within the scope of any mail fraud investigation. True, Alnor may have deliberately characterized Debras comments in a light most unflattering to plaintiffs. Slanted reporting, however, does not by itself constitute malice. Fair and objective reporting may be a worthy ideal, but there is also room, within the protection of the First Amendment, for writing which seeks to expose wrongdoing and arouse righteous anger; clearly such writing is typically less than objective in its presentation. (Readers Digest, supra, 37 Cal.3d at p. 259.) Thus, [a] publisher is not required to provide an objective picture [citation] or an accurate one [citation] [citation]. So long as he has no serious doubts concerning its truth, he can present but one side of the story. (Id. at p. 259.)

The present situation is similar to Annette F. There, the defendant had published a statement that the plaintiff was a convicted perpetrator of domestic violence. (Annette F., supra, 119 Cal.App.4th at p. 1167.) The defendant based her statement on an earlier superior court ruling that issued a restraining order and found that the plaintiff had perpetrated domestic violence against the defendant. (Id. at p. 1156.) The Court of Appeal in Annette F. acknowledged that a restraining order was not technically a conviction. Nonetheless, the court recognized that a lay person might not understand the distinction between a restraining order and a criminal conviction. Consequently, the court concluded that even when considered with such additional factors as evidence of hostility, an alleged motive to discredit the plaintiff, and a lack of investigation, the challenged publication was not so far from the truth as to permit an inference of actual malice by clear and convincing evidence . . . . (Id. at p. 1170.) The court observed: At the most, these additional factors raised a speculative possibility that Sharon might have known or suspected that her use of the word convicted was technically incorrect. Such a speculative possibility falls short of clear and convincing evidence. (Ibid.) Accordingly, Annette F. reversed the trial courts order denying the defendants anti-SLAPP motion.

Similarly, any divergence between what Debra told Alnor and what Alnor published demonstrates at most negligence, and therefore it is mere speculation to surmise Alnor knew his statement was false.

3. Alnors Mail Fraud Report

Plaintiffs assert Alnor either knew no criminal investigation of plaintiffs existed or harbored doubts that such an investigation existed because he filed a mail fraud report with the Office of Inspector General. Specifically, plaintiffs argue: Alnor would not have filed [a mail fraud] complaint if he believed that there already was a criminal investigation pending against Respondents. The fact that Alnor tried to start an investigation is strong evidence of Alnors subjective belief that one did not exist at that time. Although this is a plausible inference, we are not persuaded it is as compelling as plaintiffs contend. An equally reasonable inference is that Alnor filed the report to bolster the existing investigation by providing additional information based on his own research. Absent additional evidence supporting plaintiffs position, the inference that Alnors filing of a mail fraud report indicated doubts in his mind about an existing investigation amounts to little more than a speculative possibility.

4. Inadequate Investigation

Plaintiffs argue Alnor failed to conduct a thorough investigation because Alnors declaration demonstrates he focused chiefly on whether CRIs mail had been misdelivered, not on the post offices purported investigation of CRIs fundraising letter. Plaintiffs contend Alnors failure to focus his investigation on the post offices mail fraud investigation concerning CRI demonstrated actual malice. We disagree.

Actual malice is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. [Citation.] Lack of due care is not the measure of liability, nor is gross or even extreme negligence. (McCoy, supra, 42 Cal.3d at p. 860.) Thus mere failure to investigate the truthfulness of a statement, even when a reasonably prudent person would have done so, is insufficient to demonstrate actual malice. (Annette F., supra, 119 Cal.App.4th at p. 1169.)

For example, in Beilenson, supra, 44 Cal.App.4th 944, an unsuccessful candidate for a congressional seat sued his opponent for libel based on a campaign mailer accusing the plaintiff of unethical behavior for maintaining a private law practice while employed by the state. (Id. at p. 947.) The plaintiff argued the defendant recklessly failed to take any steps to discover if the plaintiff had violated any law, and demonstrated that a reasonable investigation would have revealed no law had been violated. (Ibid.) Nonetheless, the court reversed the trial courts order denying the defendants anti-SLAPP motion because the plaintiff failed to demonstrate the defendant knew his statement was false, or harbored doubts as to its truth. (Id. at pp. 952-953.)

To support a finding of actual malice, the failure to investigate must fairly be characterized as the purposeful avoidance of the truth or the product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 277.) In Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1052-1053, the defendant charged his political opponent with destroying files. The defendant had no proof of this charge, and failed to investigate after his opponent had offered contrary proof. The court determined that a reasonable trier of fact could conclude the defendants failure to investigate was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges, amounting to a purposeful avoidance of the truth sufficient to support a malice finding. (Id. at p. 1053.) Similarly, in Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, the defendant republished information suggesting that the plaintiff had killed Robert Kennedy. The court determined the plaintiff had demonstrated sufficient evidence of malice because the Kennedy assassination had been painstakingly and exhaustively investigated by both the FBI and state prosecutorial agencies, the only person charged in the shooting was Sirhan BisharaSirhan, and that [a]t Sirhans trial, it was undisputed that [Sirhan] fired the shot that killed Senator Kennedy . . . . (Id. at p. 276.) The court concluded, based on these facts, that there were obvious reasons for the defendant to have doubted the accuracy of the information. (Ibid.)

Plaintiffs argue Alnor had an obvious reason to doubt the accuracy of the information he received, asserting [i]t was highly implausible that a criminal investigation would have been launched as of the time [Alnor] had the alleged discussions with the USPS employees. Plaintiffs assert Alnors suspicions should have been aroused because Debra informed him an investigation was underway on the same day he discovered the fundraising letter. This argument is specious. Plaintiffs presume that any post office investigation would have been launched solely as a result of Alnors complaints. But the fundraising letter was widely distributed to donors at some unspecified point before Alnor began his inquiry. Thus, there is no evidentiary basis to presume Alnor would have been the only catalyst for a post office investigation.

5. Biased Sources

Plaintiffs contend Alnor based his statement on biased and unreliable sources because (a) there is no indication that the employees Alnor spoke with held appropriately responsible positions to comment on a mail fraud investigation; (b) Alnor received no indication the employees had any familiarity with the subject; and (c) it was obvious that any response from the employees would be biased when asked in essence whether they lost CRIs mail. None of these factors is sufficient to demonstrate Alnor doubted the reliability of his sources.

For example, Alnor reached Debra by calling the regional postal inspectors office. Her comments demonstrated knowledge of the issue, and she acknowledged her office had launched an investigation into the matter. Although Alnor apparently did not obtain Debras title or even her last name, there is nothing in the record to indicate Alnor was suspicious of her veracity or doubted her knowledge of the investigation. Moreover, any purported bias by postal employees due to allegations they mishandled CRIs mail would not extend to Debra, whose office apparently had nothing to do with the delivery of CRIs mail. The mere fact that Alnor could have done more to investigate the reliability of his informants is not indicative of malice.

6. Ill Will

Plaintiffs introduced evidence that Alnor harbored ill will toward them, arising in part from Alnors purported termination from CRI. Plaintiffs assert that Alnors mind was so infected with ill-will, he only saw the worst and the opportunity to spin the situation and create negative publicity for CRI. That Alnors objectivity and judgment may have been impaired by hostility toward plaintiffs does not by itself demonstrate malice.

A court may consider a defendants anger or hostility toward a plaintiff in determining the presence of malice only to the extent it impacts the defendants actual belief concerning the truthfulness of the publication. (Readers Digest, supra, 37 Cal.3d at p. 258.) The focus is thus on the defendants attitude toward the truth or falsity of the material published . . . [not] the defendants attitude toward the plaintiff. (Id. at p. 257.) Plaintiffs have not demonstrated any connection between Alnors alleged ill will toward them and Alnors belief about the truth of his publication.

We conclude that plaintiffs have not demonstrated Alnor acted with actual malice by clear and convincing evidence. We recognize the actual malice requirement places a substantial barrier to defamation claims brought by a public figure, particularly at this early stage of the proceeding. This barrier, however, was erected in recognition that erroneous statement is inevitable in free debate, and . . . it must be protected if the freedoms of expression are to have the breathing space that they need . . . to survive. (Sullivan, supra, 376 U.S. at p. 271-272.) Our nations highest court has recognized: This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this substantial abridgment of the state law right to compensation for wrongful hurt to ones reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. (Gertz, supra, 418 U.S. at pp. 342-343.)

The actual malice requirement has been imposed on public officials and public figures in part because such persons usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. (Gertz, supra, 418 U.S. at p. 344.) Plaintiffs ability to correct the inadvertent errors of a critic, even one as purportedly tenacious as Alnor, is manifest. CRI bills itself as the largest, most effective apologetics ministry in the world. Plaintiffs produce the nationally syndicated Bible Answer Man radio program reaching millions of people every week, and Hanegraaff has written books and made numerous television appearances. Although uttered in a different context, Justice Brandeiss observation in Whitney v. California (1927) 274 U.S. 357, 377 (conc. opn. of Brandeis, J.) applies here as well: If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

This is not to say one may slander a public figure with impunity. The actual malice barrier, although formidable, is not insurmountable. We note that plaintiffs might have met their burden, for example, by submitting a declaration from an official at the Pasadena postal inspectors office that no one named Debra worked there during the time in question, or a declaration from Debra stating she spoke with Alnor but did not tell him her office was investigating the CRI letter. (See St. Amant, supra, 390 U.S. at p. 732 [malice shown where a story is fabricated by the defendant [or] is the product of his imagination].) If evidence from which actual malice may be proven is not readily available, the nonmoving party may, on noticed motion and for good cause, request discovery. ( 425.16, subd. (g).)

IV

Disposition

The order denying Alnors special motion to strike is reversed, and the trial court is directed to enter a new order granting the motion and striking the complaint. Alnor is to recover his costs on this appeal.

ARONSON, J.

I CONCUR:

FYBEL, J.

RYLAARSDAM, J. Dissent

I respectfully dissent.

I wholly agree with my colleagues legal analysis. But I differ with their application of the law to the facts in this case. My disagreement goes only to the issue of whether plaintiffs have established a probability that [they] will prevail on the

claim . . . . (Code Civ. Proc.,  425.16, subd. (b)(3); the entire statute will be referred to as the anti-SLAPP statute and all further statutory references are to the Code of Civil Procedure.)

Once it is established that the defendants conduct is protected under the anti-SLAPP statute, the plaintiff is charged with the burden to make a prima facie showing, by admissible evidence, of facts that would merit a favorable judgment on those claims . . . . [Citations.] This burden is somewhat akin to that required to resist a nonsuit [citation], or to move for summary judgment. [Citation.] (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584, fn. omitted.) A plaintiff is not required to prove the specified claim to the trial court; rather, so as to not deprive the plaintiff of a jury trial, the appropriate inquiry is whether the plaintiff has stated and substantiated a legally sufficient claim. [Citation.] (Mann v. Quality Old Time Service, Inc. (2004)

120 Cal.App.4th 90, 105.)

The fact that the test for a prima facie showing is identical to the test for summary judgment was reiterated by our Supreme Court in Taus v. Loftus (Feb. 26, 2007, S133805) __ Cal.4th __ [2007 WL 570159]. The court stated, past cases interpreting [the anti-SLAPP statute] 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.

Thus, as would be the case if this were a motion for summary judgment, it is our task to determine whether plaintiffs presented sufficient evidence, contradicted or not, to demonstrate the existence of a prima facie case. There is only one element of plaintiffs cause of action where my colleagues concluded plaintiffs were unable to supply such a demonstration: clear and convincing evidence of actual malice. And this is the only point on which our paths diverge.

Since the same standard applies, I approach my analysis of this case as if defendant had moved for summary judgment under section 437c and we, on de novo review, would determine whether the trial court erred in denying such a motion. Under section 437c, subdivision (p)(2), once defendant had met his initial burden, the burden would have shifted to plaintiffs to demonstrate the existence of evidence raising triable issues of fact. But the court may not grant summary judgment based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact. ( 437c, subd. (c).) Also, the court may deny summary judgment where the only proof of a material fact offered in support of the summary judgment is an affidavit or declaration made by an individual who was the sole witness to that fact . . . . ( 437c, subd. (e).) And in making our determination, we may consider all evidence, regardless of which party presented it. ( 437c, subd. (c).)

Now let us examine the evidence relating to the malice element of plaintiffs claim. I can hardly disagree with my colleagues that we must independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of actual malice. (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 511 [104 S.Ct. 1949, 80 L.Ed.2d 502].) Although we are required to engage in de novo review on this issue, we need not draw all inferences favorable to defendant and ignore reasonable inferences favoring plaintiffs. And, in my opinion, when we consider all of the evidence, regardless of who produced it, and draw the possible inferences therefrom, they support the conclusion that defendant acted with actual malice.

Putting plaintiffs best case forward and drawing the inferences in their favor, here is what happened: Plaintiffs truthfully advertised the need for additional funds after their mail had been lost due to misdirection. Defendant, motivated by his anger at having been fired by plaintiffs, attempted to embarrass them by asking the post office to conduct a criminal investigation, based on his claim that plaintiffs advertisement was untruthful and that no mail had been misdirected. The post office failed or refused to do so. Nevertheless, defendant placed notices on his web site accusing plaintiffs of falsely advertising the loss of mail and asserting that plaintiffs were the subject of a mail fraud investigation.

I stress that I am not here deciding that this is what really happened. But the evidence could support such a conclusion. And such a conclusion would support a finding of malice based on clear and convincing evidence.

As noted by my colleagues, one of the leading cases dealing with the tension between the First Amendment and the law of defamation is ReadersDigest Assn. v. Superior Court (1984) 37 Cal.3d 244. In discussing the de novo standard by which we are to review whether summary judgment should be granted (and the same standard applies here), the court stated: We recognize a potential chilling effect from protracted litigation as well as a public interest in resolving defamation cases promptly. That does not mean, however, that a court should grant summary judgment when there is a triable issue of fact as to actual malice. Instead, courts may give effect to these concerns regarding a potential chilling effect by finding no triable issues unless it appears that actual malice may be proved at trial by clear and convincing evidence i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment does not constitute a forbidden intrusion on the field of free expression [citation]. (Id. at p. 252, italics added.)

Based on the evidence before us and reasonable inferences that may be drawn therefrom, I am of the opinion that there is evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that (Readers Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252), if plaintiff prevails, the judgment does not constitute a forbidden intrusion on the field of free expression [citation]. (Ibid.)

RYLAARSDAM, ACTING P. J.

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^[1] Presumably, Investigations Office referred to USPSs national investigation office in Chicago, not their Pasadena office.