Saberi v. Zolfaghari

Filed 3/15/07 Saberi v. Zolfaghari CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Appellant Andy Saberi and respondent Mehdi Zolfaghari invested with others in a television station. Saberi alleges that after Zolfaghari left the station, he made defamatory statements about Saberi in a television broadcast on a rival station. At trial, the jury concluded the allegedly defamatory statements could not reasonably be understood to be about Saberi.

On appeal, Saberi contends the trial court erred when it determined that his defamation claim based on Zolfagharis statements regarding a camera and camera parts was barred because those statements were not specified in his retraction letter. He also argues the court erred in failing to instruct the jury to consider the totality of the circumstances in determining whether the statements were defamatory and in responding to a jury question regarding which evidence they should consider. We find no prejudicial error and affirm the judgment.

Facts

In 2001, Saberi, Zolfaghari, Sattar Deldar, and Kourosh Bibiyan formed a corporation known as MAKS Persian Broadcasting, Inc. (MAKS). In November 2001, MAKS began operating a television station known as Appadana Jam E Jam that broadcast programs in Farsi via satellite to a primarily Persian/Iranian[1] audience in the United States, Canada, and Mexico. (We shall hereafter refer to this television station as the MAKS station.)

Saberi and Zolfaghari provided the initial operating capital for the corporation, contributing $125,000 each. In addition, Saberi purchased about $100,000 worth of broadcasting equipment for the station. Zolfaghari also purchased equipment. Deldar and Bibiyan, who had experience working in broadcasting, took care of the day-to-day operation of the MAKS station. Saberi, Zolfaghari, Deldar, and Bibiyan each owned 25 percent of MAKSs stock and served as officers and directors of the corporation. After a while, Zolfaghari started hosting a call-in talk show that addressed political and human rights issues of interest to the Persian community.

In February 2002, the MAKS station held a telethon for the benefit of a Persian child that had been diagnosed with cancer (hereafter cancer telethon). Before airing the telethon, the producer arranged for the donations to be directed to a separate bank account that had been set up to benefit the child. None of the money was paid to MAKS. Donations for the child exceeded $77,000.

The MAKS station also held a telethon to raise money to help cover the stations operating expenses (hereafter MAKS telethon). It raised about $68,000, all of which was used to run the station.

By April 2002, MAKS was in serious financial trouble and the shareholders were exploring options for resolving their financial difficulties. Zolfaghari and Saberi sent separate letters to the shareholders offering to sell their shares. Deldar and Bibiyan met with Dr. Morton Reza Mazaheri, a potential investor. They told Mazaheri they wanted to get rid of Zolfaghari and Saberi. Mazaheri became frustrated with their negotiations because Deldar did not give him information he had requested regarding the corporation.

The MAKS board of directors met on May 1, 2002, to discuss the corporations financial status and closing the station. At that point, the corporation was out of money and was $60,000 to $80,000 in debt. At the meeting, the shareholders discussed buying and selling their shares to one another, but no deals were struck. Deldar reported that there were no third party investors who were willing to buy at that price. When they voted on whether to close the station, the shareholders were deadlocked.

On May 3, 2002, Zolfaghari sold his shares to Saberi for $40,000. Zolfaghari and Saberi prepared a written agreement regarding the sale, without the assistance of legal counsel. The agreement provided that Zolfaghari would take certain equipment with him, including a [c]amera, tape transfer, and computers.

Later that day, Saberi agreed to buy Deldars shares for $40,000. Saberis attorney prepared a written contract regarding Saberis purchase of Deldars shares. The contract contained a confidentiality clause that provided that Deldar would not disseminate any information regarding MAKS, Saberi, or the contract to purchase Deldars shares.

On Saturday, May 4, 2002, Mazaheri called Saberi about investing in MAKS. Saberi and Mazaheri met on May 5, 2002, and agreed that Mazaheri would invest in the corporation. Based on his agreements with Zolfaghari and Deldar, Saberi expected to own 75 percent of the MAKS stock. Saberi sold half of that interest (37.5 percent of the company) to Mazaheri for $160,000 plus Mazaheris promise to invest another $150,000 in the station.

The original MAKS shareholders met on May 7, 2002. Zolfaghari and Deldar confirmed that they had sold their shares to Saberi and resigned their positions as officers and directors of the corporation. At the meeting, Saberi asked Deldar to leave [his] name alone and not talk about Saberi or the corporation. Saberi stated that if Deldar talks about him on television, he is going to go after him. Deldar agreed never to mention Saberis name. Saberis son, who was the corporations secretary, suggested it would be gentlemanly if everyone kept everything that had transpired among them confidential. Zolfaghari and Deldar asked what they should do if someone asked them about MAKS. Saberi suggested they say they cannot talk about it. Zolfaghari said he could not agree to that.

Shortly after leaving MAKS, Deldar and Zolfaghari formed their own Persian broadcasting company, Appadana International Television (Appadana). Appadana started broadcasting in mid-August 2002. On August 19, 2002, Zolfaghari broadcast his first program on Appadana (hereafter the Broadcast). After Zolfaghari left MAKS, members of the Persian community asked him what had happened at MAKS and why he did not have a show anymore. Zolfaghari decided that when he went on the air for the first time on Appadana, he would explain why he did not have a show on the MAKS station anymore and talk about the problems between the shareholders at MAKS.

Zolfagharis August 19, 2002 program on Appadana was broadcast in Farsi. During the Broadcast, Zolfaghari explained how MAKS was formed and described his program on MAKS and various conflicts between the MAKS shareholders. Zolfaghari named the shareholders by name, described their holdings and contributions to the corporation, and the negotiations between the shareholders when they split up. He told his viewers Saberi intended to boss everybody around. Zolfaghari told the audience he had purchased a camera for MAKS, that Saberi was supposed to return the camera to him as part of their contract, that Saberi did not return the camera on time, and never returned important camera parts, including the camera control unit (CCU). Zolfaghari described the efforts he made to get the camera and parts back in detail.

Zolfaghari started taking calls. One caller asked about his donation to the MAKS telethon, stating: What did they do with that? Did you take it? Did they take it? Zolfaghari responded: Not at all. We left that place Sir. He told the caller he left everything behind, including the equipment he had purchased. Zolfaghari stated: In any case, whether was wasted or not or spent . . . , probably was spent all of it. . . . expenses were very high. There, as a result of wrong organizational set up, All [the money] was waste, was spent. Another caller asked what happened to his donation to the cancer telethon, whether his contribution was sent to that childs hospital account or to the pockets of those who were working in that TV station. Zolfaghari responded, Unfortunately[,] I dont know anything about this. Of course if the money, hypothetically, was wasted, doesnt mean that we shouldnt help . . . . I hope that all the money that the viewers pay reach those who are intended for. I really dont know. In any case, you have to investigate yourself. A third caller chastised Zolfaghari for talking behind his former partners back. A fourth caller, Leila Darroudi, described Saberi as sensitive and honorable and stated that he did not steal a cent from anyone. Zolfagharis program was rebroadcast the following day.

Several witnesses testified regarding their reactions to the Broadcast. Darroudi thought Zolfaghari was saying negative things about Saberi and all the MAKS employees. Mohammed Mesbahi heard Zolfaghari say Saberi did not want to give the camera back. He said Zolfaghari made it sound like Saberi stole money from the two telethons. Mesbahis aunt thought Zolfaghari had called Saberi a thief. Rubina Matevosyan heard Zolfaghari call Saberi a crook, say Saberi stole the camera and some furniture, and say Saberi took money from the MAKS telethon. Ten to 20 people called Matevosyan after the Broadcast to ask her if Saberi was a thief. Six or seven people called Saberi and said Zolfaghari had accused him of stealing the camera. Bibiyan thought Zolfaghari had called him and Saberi thieves and had accused them of taking money from a sick child.

On August 21, 2002, Saberis attorney sent Zolfaghari, Deldar, and Appadana a written request for a retraction. No retraction was issued.

The MAKS station continued to lose money and closed in June 2003. Saberi never made any money on his investment.

Procedural History

Saberi filed a complaint against Zolfaghari, Deldar, and Appadana on August 22, 2002. The operative pleading, the first amended complaint, contains causes of action for slander per se, slander per quod, breach of contract, and fraud. The court granted summary adjudication of some of the causes of action and the case went to trial on the slander per se cause of action against all defendants and the breach of written and oral contract cause of action against Zolfaghari. At trial, Saberi advised the court that he was not seeking special damages and that he sought only general damages.

Saberis slander claim was based on three allegedly slanderous statements: (1) the statement that he stole the camera and/or camera parts; (2) the statement that he stole or misused funds from the MAKS telethon, and (3) the statement that he stole funds from the cancer telethon. The evidence at trial included an English translation of the entire transcript of the Broadcast.

The trial court made two rulings that impacted the slander claim. First, as part of the defendants motion for non-suit, the court ruled that Saberis retraction letter did not give sufficient notice that Saberi believed the statements alleging theft of the camera or camera parts were defamatory. The court concluded that since Saberis retraction letter did not specify the statements relating to the camera and Saberi claimed only general damages and no special damages, his defamation claim based on the statements about the camera was barred under Civil Code section 48a.

Second, the court concluded that the statements relating to the telethons were ambiguous and that it was therefore up to the jury to determine whether the statements were defamatory.

After a 12-day trial, the jury found in favor of the defendants. It concluded that Zolfaghari and Saberi had not entered into a contract that was partially oral and partially written containing a confidentiality requirement. The jury found that while Zolfaghari had made the allegedly defamatory statements, the people to whom the statements were made did not reasonably understand them to be about Saberi. It also concluded that for the purposes of assessing the liability of Deldar and Appadana, Zolfaghari had not made any statements about Saberi that were defamatory. Saberi appeals.

Discussion

I. Trial Court Ruling Regarding Statements About Camera

The trial court ruled that Saberis defamation claim based on the statements regarding the camera was barred because his retraction letter did not give sufficient notice that Saberi believed the statements regarding the camera were defamatory.

Civil Code section 48a, subdivision (1)[2] provides that to recover general damages in a defamation action based on a slanderous statement in a broadcast, the plaintiff must serve a request for a correction within 20 days after becoming aware of the allegedly defamatory statement. The request for correction must specify the statements that the plaintiff claims are defamatory. If the defendant does not correct or retract the statements, the plaintiff may recover general and exemplary damages in addition to special damages. If the plaintiff does not make a timely request for a retraction, he or she is limited to special damages. ( 48a, subds. (1), (2).[3]) Thus, section 48a limits the type of damages that can be recovered if the plaintiff does not properly seek a retraction. (OHara v. Storer Communications, Inc. (1991) 231 Cal.App.3d 1101, 1110 (OHara).)

Whether the subject of the alleged defamation has satisfied the statutory requirements for requesting a retraction is a question of law that we review de novo. (OHara, supra, 231 Cal.App.3d at p. 1110.)

The purpose of the section 48a notice requirement is to facilitate the publishers investigative efforts in determining whether statements in the initial article contained error and should be corrected. By designating the remarks that the objector considers libelous, a notice may enable the publisher to narrow the scope of his [or her] investigation. (Kapellas v. Kofman (1969) 1 Cal.3d 20, 30-31 (Kapellas).) The Kapellas court explained: We recognize, however, that letters written to request retraction of a statement do not compose formal legal complaints; we cannot expect that they will conform to the niceties of common law pleading. In enacting section 48a the Legislature intended to afford publishers an opportunity to correct committed errors before subjecting them to liability; it did not intend to build technical barricades to recovery by the individual who had given notice sufficient to advise a reasonable publisher acting in good faith of the claimed error. The crucial issue in evaluating the adequacy of the notice turns on whether the publisher should reasonably have comprehended which statements plaintiff protested and wished corrected. (Id. at p. 31.)

The alleged defamation in Kapellas consisted of a newspaper editorial stating that the plaintiff, the mother of six children and a candidate for city council, was needed at home rather than in public office, because her children were guilty of misconduct according to police records. (Kapellas, supra, 1 Cal.3d at p. 26-27, fn. 2.) The plaintiffs retraction notice requested correction of every statement concerning the conduct of the children, the plaintiffs qualifications for office, and her suitability as a mother. The court concluded the retraction request was sufficient. Regarding the children, the notice referred clearly to the police records. Regarding the mother, the libel consisted of false implications from apparently nonlibelous statements. The court explained: When the basis of a claim of libel lies in an implication flowing from the rhetoric of a publication, the allegedly damaging implication frequently cannot be connected to any one statement, or to even a few specific statements, but rather emanates from the tone of the article as a whole. In such an instance, section 48as requirement of a specific notice must be interpreted in light of the nature of the alleged libel. The mere withdrawal of specific statements may not be adequate to purge the original implication; thus the notice requesting correction will necessarily be tailored to the mis-impression given. (Id. at p. 33.) The court held the demand for the mother, asking for a correction of the implications rather than rectification of any individual statement, was also sufficient. (Id. at pp. 33, 34.)

In MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536 the defendant newspaper had published an article that stated that a   Communist-line paper   that is   recognized throughout the state as the mouthpiece of the communist party   had endorsed the plaintiff for city office. (Id. at pp. 542-543.) In his demand for retraction, the plaintiff quoted the entire 17-line article verbatim, stated  This article is grossly libelous . . . , and demanded a correction or a retraction pursuant to section 48a. (Id. at p. 553.) The court rejected the defendants contention that the retraction request was insufficient, reasoning that the article was short, was set out completely in the plaintiffs demand, made only one reference to the plaintiff, and was libelous on its face. (Id. at pp. 553-554.)

Both Kapellas and MacLeod discussed Anderson v. Hearst Publishing Co. (S.D.Cal 1954) 120 F.Supp. 850. In that case, the defendant published a lengthy article of three columns by ten inches in which there were eight references to the plaintiff. (MacLeod,supra, 52 Cal.2d at p. 553.) The plaintiff demanded retraction of certain statements regarding me which are untrue, libelous, and damaging . . . . The demand for retraction was held insufficient on the ground that plaintiff had failed to specify which of the certain statements he deemed libelous (ibid.) and failed to give the publisher any indication of the statements to which objections were leveled. . . . (Kapellas, supra, 1 Cal.3d at p. 32.)

In Gomes v. Fried (1982) 136 Cal.App.3d 924, a police officer brought a defamation action against a newspaper that had published an article criticizing the local police in general and the plaintiff officers conduct in issuing a traffic citation and in allegedly refusing to assist in a citizens arrest. The plaintiff alleged among other things, that a photograph that showed him with his head tilted and was captioned His head tilted may suggest something, was libelous because it suggested he was sleeping on the job. (Id. at pp. 935, 928-930, 936-937.) The court concluded that most of the article contained statements of opinion that were not actionable and that only the photograph and its caption were defamatory. (Id. at p. 935.) The defendants challenged the sufficiency of the plaintiffs retraction letter, which did not mention the photograph or its caption. The court concluded that the plaintiffs retraction demand failed to specify with particularity the only potentially libelous portion of the article and explained: The length and complexity of the article, with its several pictures and references to several incidents and numerous officers, required a high degree of specificity. Since the statute expressly and clearly requires that the plaintiff shall specify defamatory material, he must do so with particularity. [Citation.] The degree of particularity depends on the character of the libel on which it is brought. Here, . . . , the language of the article was not libelous per se and subject to the constitutional privilege of fair comment. The photograph also was not libelous per se. The request for a retraction referred only to statements and did not mention either the photograph or its caption. Under these circumstances, the publisher could not be expected to comprehend from the letter that Gomes also was requesting a retraction of an admittedly accurate photograph and its caption. (Id. at p. 938.)

Saberis retraction demand, which was prepared by his attorney, stated in pertinent part: The purpose of this letter is to address the comments that were made on August 19, 2002 by Mr. Zolfaghari on your new television station. It is my understanding that Mr. Zolfaghari made some disparaging remarks regarding Andy Saberi during a live broadcast. [] These remarks include but are not limited to false and defamatory information about your business dealings with Andy Saberi and also disparaging results [sic] regarding Mr. Saberis character and inferring that he misappropriated funds from the telethon. While the retraction letter referred to remarks about Saberis character, the parties business dealings, and the telethons, it did not mention the statements about the camera and the camera parts.

According to the transcript, the Broadcast lasted over an hour. The English-language transcript of the program is 53 pages long. During the program, Zolfaghari explained how MAKS was formed. He named the shareholders by name and described their holdings and contributions to the corporation. He described his show on MAKS, conflicts between the MAKS shareholders related to programming and control of the station, and his contract with Saberi for the sale of his shares. He mentioned Saberis name 13 times. He told the audience Saberi wanted to boss everybody around and accused Saberi of trying to buy his vote. He said Saberi was uneducated and had no class.

Zolfaghari told his viewers about the circumstances surrounding the purchase of the camera, that Saberi had agreed to return the camera to Zolfaghari as part of their agreement, and that Saberi did not return the camera on time and never returned the camera parts. Zolfaghari described the efforts he made to get the camera and the parts back.

As in Gomes, the length and complexity of the Broadcast, which included several references to Saberi and Zolfagharis business dealings with Saberi, required a high degree of specificity. While allegations of theft are generally slanderous per se, Zolfaghari told his audience Saberi returned the camera. (Clay v. Lagiss (1956) 143 Cal.App.2d 441, 448 [charge of theft is slander per se].) Moreover, as the trial court observed, the dispute between Saberi and Zolfaghari over the camera parts could be viewed as a business or contract dispute.[4] Zolfaghari described in detail his numerous efforts and the negotiations involved in getting the camera back and suggested he was still trying to get the camera parts back. He portrayed Saberi as unreasonable and unresponsive. Under these circumstances, the broadcaster could not be expected to comprehend from the letter that Saberi was also requesting a retraction of the statements relating to the camera and the camera parts.

Since Saberis demand for retraction failed to specify with particularity the statements regarding the camera and camera parts, Saberi did not meet the requirements of section 48a. His defamation claim based on those statements was therefore limited to special damages. Saberi argues that even if his retraction demand was insufficient, the allegations of slander regarding the camera should still have been sent to the jury, with an instruction that any damages be limited to special damages. Saberi did not make this argument below. Moreover, Saberi told the court he did not seek special damages. The court was therefore correct to conclude that the defamation claim based on the statements about the camera and camera parts was barred.

II. Alleged Instructional Error

Saberi argues that the jury was improperly instructed that only the words contained in two limited portions of the broadcast could give rise to liability for slander and contends the court erred in failing to instruct the jury to consider the totality of the circumstances. He asserts the court erred in responding to a jury question regarding what evidence they should consider in evaluating the slander claim. Since these arguments are related, we shall consider them together.

A. Factual and Procedural Background

At trial, Saberi contended that three statements in the Broadcast gave rise to liability for slander. After the court ruled that the defamation claim based on the statements about the camera and the camera parts was barred, there were two allegedly slanderous statements for the jury to consider: (1) statements implying that Saberi had misappropriated funds from the MAKS telethon and (2) statements implying the same about the cancer telethon. The statements occurred during the call-in portion of the Broadcast and involved different callers.

The court instructed the jury with a standard jury instruction on defamation per se.[5] When preparing the instruction, the court and the parties agreed to attach copies of the portions of the English-language translation of the transcripts of the Broadcast that included the callers questions and Zolfagharis answers about the telethons as exhibits to the instruction. Transcript A contained the discussion of the MAKS telethon and Transcript B contained the discussion about the cancer telethon.

The court instructed the jury pursuant to CACI No. 1707 as follows: For Andy Saberi to recover, Mehdi Zolfagharis statements must have been statements of fact, not opinion. A statement of fact is a statement that can be proved to be true or false. An opinion may be considered a statement of fact if the opinion suggests that facts exist. [] In deciding this issue, you should consider whether the average listener would conclude from the language of the statement and its context that Mehdi Zolfaghari was making a statement of fact.

The day after the court and the parties conferred about jury instructions, before the arguments began, Saberi requested two additional instructions. The first instruction, stated: You may consider the totality of the circumstances when determining whether an alleged defamatory statement is one of fact or opinion. [] First, the language of the statement is examined. For words to be defamatory they must be understood in a defamatory sense. [] Next the context in which the statement was made must be considered. The second instruction dealt with the liability of the originator of defamatory material for repetitions of the defamatory material. The court refused the instructions, stating: They should have been submitted a long time ago, when we were going over jury instructions. And I think theyre areas are adequately covered, in any event, by other instructions.

During deliberations, the jury asked what evidence they should consider in evaluating the defamation claim. Saberi again asked the court to give his totality of the circumstances instruction, which was refused.

B. Contentions Regarding Instructional Error

Saberi contends the court erred in three respects with regard to the jury instructions on the slander claims. First, he contends the court erred in defining the slanderous statements by reference to Transcripts A and B and argues the court should have used the descriptions of the allegedly slanderous statements in a jury instruction he proposed. He asserts the court erred in refusing his totality of the circumstances instruction in the first instance, in responding to the jurys question, and in refusing to give the totality of the circumstances instruction after receiving the jurys question. We perceive no error.

C. Standard of Review

In civil appeals claiming instructional error, we view the evidence in the light most favorable to the appellant and assume the jury, had it been given proper instructions, might have drawn different inferences more favorable to the losing party and rendered a verdict in that partys favor on those issues as to which it was misdirected. (Whiteley v. Phillip Morris, Inc. (2004) 117 Cal.App.4th 635, 655 (Whiteley).)

D. Failure To Give Saberis Proposed Instruction on Slander

Initially, Saberi proposed a jury instruction based on CACI No. 1704 that contained narrative descriptions of the allegedly slanderous statements.[6] Rather than use a narrative description of the alleged slander, the parties agreed they would attach the transcripts of the telephone calls about the telethons to the instruction and reference the transcripts at the point where the form jury instruction says list all claimed per se defamatory statement(s). (CACI No. 1702.) Apparently there was some disagreement regarding what portions of the transcript should be used as Transcripts A and B. The parties agreed on the contents of Transcript B and the court adopted the longer version of Transcript A proposed by Saberi. In light of this, the court marked Saberis proposed instruction as refused.

A party who expressly agrees to action taken by the trial court cannot challenge that action on appeal and has waived any claim of error. (Nevada County Office of Education v. Riles (1983) 149 Cal.App.3d 767, 779.) Since Saberi expressly agreed to use Transcripts A and B to describe the statements at issue, he has waived any claim of error related to the courts failure to adopt the instruction he originally proposed.

E. Failure to Give Totality of the Circumstances Instruction in First Instance

Saberi contends the jury instructions on the issue of slander did not make clear that the jury could consider all the evidence presented in determining whether Transcripts A and B were slanderous, but instead implied that the jury was limited to reviewing the language in the transcripts. He asserts the court could have remedied this problem by giving the totality of the circumstances instruction he had proposed.

Saberis totality of the circumstances instruction was based on Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261 (Baker). The issue in Baker was whether the statement at issue was a statement of fact or a statement of opinion. As the court explained, statements of opinion are constitutionally protected speech, while false statements of fact may give rise to liability for defamation. (Id. at p. 260.) The determination of whether a statement is one of fact or opinion is a question of law for the court. (Ibid.) The court determines the sense or meaning of the statement according to its natural and probable effect upon the mind of the average reader or listener. (Ibid.) If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury. (Campanelli v. Regents of Unviersity of California (1996) 44 Cal.App.4th 572, 578.)

[W]hat constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.  (Baker, supra, 42 Cal.3d at pp. 260.)

For these reasons, California courts have developed a totality of the circumstances test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. [Citations.] Where the language of the statement is cautiously phrased in terms of apparency, the statement is less likely to be reasonably understood as a statement of fact rather than opinion. (Baker, supra, 42 Cal.3d at pp. 260-261, fn. omitted.) Next, the context and the facts surrounding the publication must be carefully considered. (Id. at p. 261.) This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. (Ibid.) The publication must be considered in its entirety and may not be divided into segments. It must be read as a whole to understand its import and the effect it was calculated to have on the reader. (Ibid.)

Saberi argues that the court rejected his totality of the circumstances instruction on the sole ground that it was untimely. However, he misreads the record. In addition to refusing the instruction on the ground that it was untimely, the court refused the instruction because the subject matter of the instruction was covered by other instructions. In our view, the court did not err in refusing the instruction for this reason. Therefore, we shall not reach Saberis argument that his request for the totality of circumstances instruction was timely.

The totality of the circumstances instruction was duplicative of CACI No. 1707, the standard instruction on fact versus opinion in a defamation case, which the court had already agreed to give. CACI No. 1707, which is based on Baker, instructs the jury that in determining whether the statement is one of fact or opinion, it should consider the language of the statement from the perspective of the average listener and the context in which the statement was made. (Judicial Council of Cal. Civil Jury Instrns. (2006) CACI No. 1702, Sources & Authority, p. 879.) Saberis proposed instruction tells the jury to examine the language of the statement, but does not instruct it to view the statement from the perspective of the average listener. It tells the jury to view the statement in context and adds that it should consider the totality of the circumstances. Although the CACI instruction did not use the phrase totality of the circumstances, it was more complete than Saberis proposed special instruction. For these reasons, we conclude the court did not err in refusing the special instruction in the first instance.

F. Failure to Properly Respond to Jury Question and Give Totality of the Circumstances Instruction After Jury Question

During deliberations, the jury asked the following question: Is the decision to be based on attached exhibits (transcripts A & B) only or on all evidence presented during trial? After conferring with counsel, the court formulated the following response: Your decisions must be based on all of the evidence presented; however as to the allegations of slander, only those words contained in Transcripts A & B could give rise to liability for slander. Counsel for Saberi stated the jurys question related directly to the instruction he had requested regarding the totality of the circumstances and asked the court whether it would consider giving the instruction at that time. The court observed that the transcript of the Broadcast was over 40 pages long and that under the retraction statute, Saberi has to pinpoint the areas he believes are slanderous. The court concluded that its response was adequate and that there was no need for the additional instruction.

Saberi takes issues with the wording of the courts response and argues the court should have directed the jury that Transcripts A & B contain the only words [that] can be found to be slanderous, but in determining whether those words are slanderous they must consider all of the evidence presented, including the entire broadcast. Nothing in the record suggests he proposed this wording in the trial court. Saberi argues that the court instructed the jury in one sentence that they should consider all the evidence and in the next sentence instructed them that they should limit their review. We think the courts response adequately advised the jurors they could consider all the evidence, including the entire broadcast. In response to the jurys question whether they should consider all the evidence or limit their review to Transcripts A and B, the court told the jury their decision must be based on all of the evidence presented. When read in the context of both the jurys question and the courts answer, it is clear the court did not instruct the jury to limit its review.

Saberi also contends the court erred in refusing to give the totality of the circumstances instruction in response to the jurys question. Even if we were to conclude that the court erred in refusing the totality of the circumstances instruction at that time, any error would be harmless.

In deciding whether instructional error is prejudicial, we examine the evidence, the arguments, and other factors to determine whether it is reasonably probable that instructions allowing application of an erroneous theory actually misled the jury. [Citation.] A reasonable probability in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility. (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 682.)

 The reviewing court should consider not only the nature of the error, including its natural and probable effect on a partys ability to place his full case before the jury, but the likelihood of actual prejudice as reflected in the individual trial record, taking into account(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsels arguments, and (4) any indications by the jury itself that it was misled. [Citation.] [Citation.] Reversal for instructional error is warranted only where the reviewing court concludes the error complained of has resulted in a miscarriage of justice. (Cal. Const., art. VI, 13.) (Whiteley, supra, 117 Cal.App.4th at pp. 655-656.) Our review of the Whiteley factors persuades us there was no prejudicial instructional error.

1. State of the Evidence

No relevant evidence was excluded because of the alleged instructional error. In addition to the transcripts pinpointing the allegedly defamatory statements, the English translation of a transcript of the entire Broadcast was admitted into evidence. During the testimony, the jury saw the last 18 minutes of a videotape of the Broadcast in Farsi, which included the statements about the telethons. That part of the videotape was in evidence.

We have reviewed the entire transcript of the Broadcast. Zolfaghari does not mention the telethons in his monologue. Zolfaghari only discussed the telethons during the call-in portion of the program, as reflected in Transcripts A & B. As the trial court concluded, Zolfagharis statements about the telethons were ambiguous at best. It was therefore up to the jury to decide if they were defamatory.

2. Other Instructions

As noted above, the totality of the circumstances instruction was duplicative of CACI No. 1707, which instructed the jury it should consider the statements in context. In addition, in responding to the jurys question, the court told the jurors they should consider all the evidence.

3. Counsels Arguments

In argument, Saberi told the jury, when you look at the evidence in this case, take a look at the whole picture. He analogized their analysis to looking at a painting in a museum and told the jury to step back and look at the whole picture and not to cut the sentences into little sections. Saberi told the jury there were two areas they could consider defamatory: the MAKS telethon and the cancer telethon. He stated: Now, you are allowed to look at the totality of the transcript to put it into context. But those are the two areas you have to consider in relationship to whether or not theyre accusing Mr. Saberi of being a criminal. . . .

In response to Saberis argument, Zolfaghari argued [Saberis counsel] mentioned that words have meaning and words have power; . . .  if thats the case, why arent we seeing all the words. Were only seeing part of them. And if context is important, then, lets see the whole context, not half phrases. [Y]ou need to really look at the words, all the words, and decide; and then if you do that, youll decide that nothing that was said was defamatory. [] Its also important to note the context. Zolfaghari told that jury that the only statements that were at issue were the statements about the two telethons and that although Saberi discussed the statements about the camera dispute in his opening statement, they were not at-issue as a basis for defamation. Zolfaghari suggested the jury look at the tape and observe his demeanor. [Y]ou dont see the demeanor of someone who is out to get someone. You see the demeanor of someone who is, instead, calmly responding to calls . . . enjoying the fact that he is back on the air. . . . Saberi also invited the jury to look at the tape and watch Zolfagharis eyes. Thus, the parties argument told the jury to consider the totality of the circumstances and all the evidence.

4.      Indications That the Jury Was Misled

A close verdict is a key indication that the jury was misled by instructional error. (Whiteley, supra, 117 Cal.App.4th at p. 665, citing Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570-571 and other cases.) We do not know whether the verdict was close in this case, because the jury was not polled. Moreover, we do not know how long the jury deliberated, because the record does not contain all of the trial minutes. We can infer from the record we do have that the jury deliberated for less than a day.[7]

Nothing in the record suggests Saberi was prejudiced by the trial courts instructions or its response to the jury question. For these reasons, we conclude that instructional error, if any, was harmless.

Since we affirm the judgment finding no defamation, we conclude the trial court did not err in failing to give Saberis proposed instruction on the liability of the originator of the defamation for repetition of the defamatory material.

Disposition

The judgment is affirmed.

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McAdams, J.

WE CONCUR:

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Mihara, Acting P.J.

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Duffy, J.

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[1] Since the parties generally refer to the audience they served as Persian, we shall adopt that designation for ease of reference on this appeal.

[2] All further statutory references are to the Civil Code.

[3] Civil Code section 48a provides in relevant part: 1. In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous. [] 2. If a correction be demanded within said period and be not published or broadcast in substantially as conspicuous a manner in said newspaper or on said broadcasting station as were the statements claimed to be libelous, in a regular issue thereof published or broadcast within three weeks after such service, plaintiff, if he pleads and proves such notice, demand and failure to correct, and if his cause of action be maintained, may recover general, special and exemplary damages; provided that no exemplary damages may be recovered unless the plaintiff shall prove that defendant made the publication or broadcast with actual malice and then only in the discretion of the court or jury, and actual malice shall not be inferred or presumed from the publication or broadcast.

[4] The agreement between Saberi and Zolfaghari provided that Zolfaghari was entitled to take specified equipment, including a camera; it did not mention the tripod or the CCU. After the Broadcast, Zolfaghari sued Saberi in small claims court for the return of the CCU and lost.

[5] The jury was instructed with a modified version of Judicial Council of California Civil Jury Instructions (2006) CACI No. 1702, as follows: Andy Saberi claims that Mehdi Zolfaghari harmed him by making certain statements during a television broadcast. The statements at issue are those statements of Mehdi Zolfaghari contained in the documents attached to this instruction as: [] a. Transcript A, having to do with the MAKS telethon; and [] b. Transcript B having to do with the telethon held to raise money for a child with eye cancer. [] To establish this claim, Andy Saberi must prove all of the following: [] Liability [] 1. That Mehdi Zolfaghari made one or more of the statements to persons other than Andy Saberi; [] 2. That these people reasonably understood that the statements were about Andy Saberi; [] 3. That these people reasonably understood the statements to mean that Andy Saberihad committed a crime; [] 4. That the statements were false; and [] 5. That Mehdi Zolfaghari failed to use reasonable care to determine the truth or falsity of the statements. [] Nominal damages [] If Andy Saberi has proved all of the above the law assumes that his reputation has been harmed. Without further evidence of damage, Andy Saberi is entitled to a nominal sum such as one dollar or such greater sum as you believe is proper for the assumed harm to his reputation under the circumstances of this case. [] Actual damages [] Andy Saberi is entitled to recover if he proves that Mehdi Zolfagharis wrongful conduct was a substantial factor in causing any of the following actual damages: [] a. Harm to Andy Saberis property, business, trade, profession, or occupation; [] b. Expenses Andy Saberi had to pay as a result of the defamatory statements; [] c. Harm to Andy Saberis reputation in addition to that assumed by the law; or [] d. Shame, mortification, or hurt feelings. [] Punitive damages [] Andy Saberi may also recover damages to punish Mehdi Zolfaghari if he proves by clear and convincing evidence that Mehdi Zolfaghari acted with malice, oppression, [sic] [] Malice means that Mehdi Zolfaghari acted with intent to cause injury or that his conduct was despicable and was done with a willful and knowing disregard of the rights or safety of another. A person acts with knowing disregard when he or she is aware of the probable dangerous consequences of his or her conduct and deliberately fails to avoid those consequences. [] Despicable conduct is conduct that is so mean, vile, base, or contemptible that it would be looked down on and despised by reasonable people.

[6] Saberis proposed instruction described the slanderous statements about the telethons as follows: b. In response to a caller, while on the air, inquiring about [the MAKS telethon], Mehdi Zolfaghari replied when asked if the money was taken that he did not know if the money had been taken because he left MAKS, and that the callers [sic] concern was justified because many people feel like they have been cheated, implying that such donations were misappropriated by Andy Saberi; and [] c. When Mehdi Zolfaghari was asked by a caller about the [cancer telethon] and whether donations went to the pockets of those who worked at the TV station, Mehdi Zolfaghari replied that he did not know, saying he hypothetically hoped the money reached those who it was intended for, advising the caller to investigate themselves [sic], implying that such donations were misappropriated by Andy Saberi. Subparagraph a of the proposed instruction contained a narrative description of the alleged slander involving the camera, which we have concluded was not at issue.

[7] The court began instructing the jury on January 25, 2005. After the jury was instructed, it began deliberating. The jury sent questions to the court at 2:25 p.m. and 3:20 p.m. that day. The following day, the jury deliberated for 23 minutes before reaching a verdict.