Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2009-00067693- CU-DF-EC, Eddie C. Sturgeon, Judge.
HALLER, J.
KGTV Channel 10 News aired a consumer affairs report concerning Richard Mark Anderson's marketing and selling recreational vehicles (RVs) to be used for additional living space on private residential property. In the broadcast, a San Diego County official warned that the RVs could not be legally used for this purpose, and two former purchasers said Anderson lied about the RVs permitted use.
Alleging these televised statements were false and injured his personal and business reputation, Anderson brought slander claims against: McGraw-Hill Broadcasting Company (the owner of KGTV Channel 10 news), reporter Juliette Vara, Barbara Trent and Phillip Staples (the two individuals who spoke during the broadcast), the County of San Diego (County), and Pamela Elias, the County's code enforcement director.
These defendants successfully moved to dismiss the complaint under California's anti-SLAPP statute. (Code Civ. Proc., § 425.16 (section 425.16).) The court found defendants met their burden to show the claims arose from protected speech and Anderson did not meet his burden to show a probability of prevailing on his claims. The court thus dismissed the complaint in its entirety. Anderson appeals. We affirm.
The court also sustained a demurrer without leave to amend brought by Trent and Staples based on Vehicle Code section 11711.3, which precludes an unlicensed vehicle dealer from recovering damages against a purchaser. Because we affirm the court's dismissal order on other grounds under the anti-SLAPP statute, we do not consider the court's demurrer ruling or address this alternate statutory basis for dismissing Anderson's claims against these individuals. Likewise, we do not reach Anderson's arguments challenging the court's order granting defendants' motion to strike the punitive damage allegations.
FACTUAL AND PROCEDURAL SUMMARY
A. Background Facts
Anderson sells a product which he describes as "park model RVs" or "a small mobile home." The name of his business is "Instant Mobile House."
In 2006 and 2007, Anderson sold park model RVs to Phillip Staples and Barbara Trent, and delivered the product to each of their residential properties. Staples lived in the City of San Diego (City), and Trent lived in an unincorporated area of the County. In selling this product, Anderson was aware that Trent and Staples intended to use the RVs for additional living space for relatives on their properties.
Several months after his purchase, Staples was cited by the City for having the RV trailer on his property and for several other code violations. His relatives nonetheless continued to live in the RV on Staples's property for the next several years. Shortly after her purchase of two RVs, Trent was told by County officials that the park model RVs could not be used for residential purposes on her property under existing zoning regulations and that a permit was required for their use. When the County later told Trent that it would not inspect a remodel on her home unless the trailers were removed, she removed them and sold them at a loss.
On October 9, 2008, KGTV Channel 10 News broadcast a consumer affairs segment about Trent's and Staples's experiences purchasing park model RVs from Anderson's business. Because this broadcast is the basis for Anderson's complaint, we set forth the transcript of the story in full:
"[ANCHOR]: They bought what they thought was a home and then they were told to get out. Now they are looking for answers. 10 News I-Team Reporter [Juliette Vara] investigates.
PHILLIP STAPLES: I promised [my in-laws] that they would never have to worry again
[REPORTER VARA]: But now worrying is all they do.
STAPLES: [appearing to be crying] And I feel like I kind of lied to [my in-laws].
[VARA]: What Phillip Staples thought was the perfect answer for his aging in-laws
STAPLES: - one of them has a dementia or Alzheimer's
[VARA]: has turned into a perfect nightmare.
STAPLES: The other one is 80 years old and is blind in one eye...
[VARA]: Only wanted a safe place for them to live out their years.
STAPLES: It looked like it was a win-win situation.
[VARA]: But he says it's left him fighting a losing battle
STAPLES: He is a liar! He is a thief!
[VARA]: Damning claims against Mark Anderson. Anderson sells these park model units in Alpine and sold this one to Phil[l]ip, which he placed next to his Nestor home. The problem is code enforcement officers say it can't be here and Phil[l]ip isn't the only one calling Anderson out.
TRENT: He is a liar for sure [laughing].
[VARA]: Barbara and Jim Trent purchased two units at a total cost of $80,000.
TRENT: So we could have our handicapped son-in-law, daughter and two children occupying them.
[VARA]: They placed them on their Lakeside property.
TRENT: This is where Mark [Anderson] parked them. [Showing an empty dirt lot]
[VARA]: Where only dirt remains now. Those units are gone. They were forced out by the County.
PAM ELIAS: They are not permanent housing.
[VARA]: Pam Elias is with the San Diego County Planning and Land Use Department and knows about Anderson and his company which he calls Instant Mobile House. She says he misleads his customers.
ELIAS: The State of California has designated these as recreational vehicles and so they are to be treated as such. They got a VIN number; they got a license plate.
[VARA]: That means these units can be used as temporary homes but once you hook them up to utilities that's considered permanent housing.
[VARA]: [shown approaching Anderson] I am [Juliette Vara] with Channel 10 News. Can I talk to you a minute here about your business?
TRENT: And [Anderson] guaranteed us that is absolutely fine, you can do that. There is no problem.
[VARA]: That's the same story [Phillip Staples] says Anderson told him.
STAPLES: I trusted him completely.
MARK ANDERSON: Let me show you the product.
[VARA]: Anderson defends himself showing me what he says is permission to sell the homes.
[VARA]: [speaking to Anderson] So you don't believe in any way, shape or form that you misrepresent?
ANDERSON: No. I've got state, federal, local ordinances to implement this property.
[VARA]: Anderson gave me all these documents; more than 100 pages to prove his case. [¶] I am going to drop them off at the Department of Planning and Land Use and see what they have to say. [¶] For three days the County reviewed the paperwork and maintains none of it pertains to what Anderson sells. It says the documents are for other types of housing.
ELIAS: He is wrong and you don't want to continue his misleading by calling it something it's not.
[VARA]: Exactly what these people say they've learned thousands of dollars later.
STAPLES: I'll do whatever I need to make sure that this wrong is not done to anybody else.
[VARA]: Anderson did tell me that he [has] a list of 3500 satisfied customers. I asked him to give me some names and numbers and I'd follow up. But he never did. Meanwhile a local attorney has now filed a lawsuit against Anderson alleging misrepresentation and unfair business practices."
B. Anderson's Complaint
Nine months after the broadcast, Anderson filed a complaint against Staples, Trent, McGraw-Hill, reporter Vara, the County, and Elias. Anderson alleged a slander cause of action and identified four allegedly false statements:
"STAPLES: 'He's a liar; he's a thief.' "
"TRENT: 'He's a liar, that's for sure.' "
"VARA: 'They... were forced out by the county.' "
"ELIAS: 'You don't want to continue his misleading by calling it something it is not.' "
With respect to damages, Anderson alleged he had sold approximately 50 park model RVs before the broadcast, but "[a]fter the broadcast and because of it, he lost prospective customers who questioned him about the broadcast, and although he made his best efforts, he did not make any sales for over six months following the broadcast." Anderson further alleged that "[b]efore the broadcast, [he] enjoyed a good relation with his daughters' friends and their parents at school and at the Boys and Girls Club. After the broadcast and because of it, ANDERSON was shunned and avoided at these places and at other social events." Anderson sought punitive damages against Vara and McGraw-Hill.
C. Defendants' Anti-SLAPP Motions
Each set of defendants (McGraw-Hill/reporter Vara, Trent/Staples, County/Elias) brought a motion to dismiss the complaint under the anti-SLAPP statute. (§ 425.16.) All of the defendants contended that Anderson's claims arose from protected speech because the challenged statements were made in a public forum (the television news broadcast) and the statements pertained to issues of public concern, including code requirements for RV trailers and Anderson's "ongoing misrepresentations and consumer fraud" about his "Instant Mobile House" business. The McGraw-Hill defendants additionally argued Anderson's claims were subject to the anti-SLAPP statute because the statements by Vara and Elias concerned matters before the County's planning department and before a court.
Defendants also asserted numerous arguments to an effort to establish Anderson could not meet his burden to show a probability of prevailing on his slander claim. These arguments included: each of defendants' challenged statements was true and/or statutorily and constitutionally privileged; the statements were not defamatory because they were fair comment, opinion, and/or hyperbole; and Anderson failed to adequately plead damages caused by the comments, and/or would be unable to prove damages. In support of these arguments, defendants produced numerous items of evidence, including their declarations and information about the County's legal position pertaining to park model RVs. We summarize the admissible evidence below.
The trial court overruled all of Anderson's evidentiary objections to defendants' evidence. As explained in the Discussion section, the court erred with respect to some items of evidence, including several computer printouts. We discuss, and rely on, only the admissible and relevant evidence.
Trent and Staples each submitted a declaration stating they went to Anderson's Instant Mobile House sales lot because of a need for additional living space on residential property. Trent said she told Anderson that her daughter's family (including her disabled son-in-law) was moving in with them. Staples said he told Anderson he needed additional living space to care for his wife's elderly and infirm parents.
According to Staples and Trent, Anderson responded by representing that a park model RV: (1) "could be used without exception and could legally be hooked up to all utilities" on residential property; (2) did not require a permit because it was "registered with the Department of Motor Vehicles"; (3) "fell within exceptions created... by [the] California Department of Housing and Community Development and the Federal Department of Housing and Urban Development to help cure the housing crunch that was created in the housing boom in the 2000s"; (4) could be legally rented to third parties while on private property; and (5) was "handicap friendly and met all applicable building codes."
Staples and Trent also said Anderson gave them numerous documents to support these representations. Staples attached to his declaration a printed document that he said Anderson gave him, which appeared to support that the trailer could be used as a "vacation home, " "retirement" home, or "destination home." Additionally, Staples and Trent each said that before they purchased the RVs, Anderson visited their homes and discussed utility hookups and/or proper placement of the trailers.
In reliance on Anderson's representations, Staples said he purchased a park model RV from Anderson in March 2006. However, six months later, the City inspected his property and found the RV violated the municipal code. Staples attached the City's citation to his declaration, which identified the violation as the "non-permitted installation of a manufactured home which encroaches into the street, side yard, " and states that it is a municipal code violation to "use or occupy any mobilehome, commercial coach or recreational vehicle on private property not licensed as a mobile home park... without a permit." The citation states that Staples must "[p]ermanently vacate the unit and disconnect all utility connections." Staples said he then demanded that Anderson allow him to return the trailer, but Anderson refused, citing a signed and enforceable contract.
Trent likewise said she relied on Anderson's representations in deciding to purchase two park model RV trailers for about $85,000 in March 2007. Shortly after Anderson delivered the trailers to her property, County officials informed Trent that the park model RVs "could not be used, [i.e., ] lived in, under existing zoning regulations, that a permit was needed for any use, and could not be stored on my property." Trent immediately demanded her money back from Anderson, but Anderson refused based on the parties' contract. The Trents later added a bathroom to their home, and during the permitting process, the County inspector required the Trents to remove the trailers from the property before he would inspect the bathroom. The Trents then sold the trailers "at a loss of over $50,000."
Trent also submitted copies of her August 2007 email communications with Patricia Laybourne, a planning manager in the County's planning and land use department. In these communications, Laybourne informed Trent that "[s]tate law defines 'park model trailers' as habitation for recreational or seasonal use only. They are not legal for 'permanent' dwellings." In response to Trent's statement that Anderson had represented that the park model RV could be used for residential purposes, Laybourne said: "I'm going to forward your name, phone number and email address to our County Counsel offices (attorneys for the County) as they are working on putting a case together against this company. They will probably contact you as a witness. This may take a long time to put together a case, so you may want to pursue your own action against this company also."
Defendant Elias also submitted her declaration in support of the anti-SLAPP motion. Since 1998, Elias has been the chief of the code enforcement division in the County's planning and land use department. Elias's responsibilities include interpreting county codes, establishing department policies and procedures, and advising and educating the public regarding county code enforcement. Elias said that at the time of the Channel 10 interview, the County had received dozens of complaints and inquiries regarding whether the County would allow park model RVs to be used as permanent homes, and she was aware that Anderson "was selling these recreational vehicles to customers who then sought permits from the County which were denied." Elias also stated that, "During the broadcast, I was quoted stating: 'You don't want to continue his misleading by calling it something it is not.' This one statement was taken from a longer interview in which I was explaining the difference between 'park model recreational vehicles' and 'mobile homes' as they are treated by California statutes."
Elias additionally articulated the County's legal position pertaining to park model RVs: "Health and Safety Code section 18010 defines 'recreational vehicles' and subsection (b) specifically states that the definition includes 'a park trailer, as defined in Section 18009.3.' Section 18009.3 defines the type of recreational vehicles that Plaintiff had sold to customers as permanent housing which cannot be permitted pursuant to County Codes. Since the models that I was told that Plaintiff had sold are recreational vehicles per state law, they must be regulated by the County pursuant to state law. This type of vehicle is not built to the same structural standards as mobile homes; the wheels and tow tongue may not be removed; as temporary structures, park models are not placed on a foundation, nor do they have tie-downs for earthquake stability. [¶]... San Diego County Code of Regulatory Ordinances [sections] 56.201-56.203 define a 'trailer coach, ' which encompasses the 'park model' recreational vehicles sold by [Anderson], and prohibits their occupancy on any property in the unincorporated area of the County except in certain parks and camping areas."
D. Anderson's Opposition to Defendants' Anti-SLAPP Motions
In opposition to the anti-SLAPP motions, Anderson argued that section 425.16 was inapplicable because his claims arose solely from two purchasers' private dissatisfaction with his product and not a larger issue of public concern or public interest. He also argued the claims did not arise from any matters that were before a governmental agency at the time the statements were made.
Anderson alternatively argued there was a probability he would prevail on his claims against each of the defendants. In support he submitted a declaration and a supplemental declaration, and attached various documents to these declarations. In his declarations, Anderson denied he made each of the statements attributed to him by Staples and Trent in their declarations. But he acknowledged he had conversations with Trent and Staples before they purchased the park model RVs, and did not deny that he delivered the trailers to their residential property and that he discussed proper placement and/or utility connections for the trailers.
Specifically, with respect to Trent, Anderson said that in 2006, Trent and her husband came to his Lakeside sales lot and said they "had a handicapped son and wanted a home health care unit for their home in Lakeside." About one year later, the Trents returned to Anderson's sales lot in Alpine and said "they had looked into [Anderson's] product and were ready to purchase two trailers." After the Trents purchased the two trailers, Anderson delivered the trailers to the Trents' property. Two weeks later, the Trents called Anderson and stated Mr. Trent "had been diagnosed with cancer, and did not have the energy to proceed with his project and the County of San Diego." The Trents then asked whether they could return the trailers, but Anderson refused and directed the Trents to a dealer that might purchase them. Anderson had no further contact with the Trents until he heard the Channel 10 broadcast.
Anderson stated that when Staples visited the sales lot, Staples said he wanted a home health care trailer for his elderly in-laws, so he and his wife could care for them on their property. In March 2006, Anderson sold Staples a trailer with a front and rear porch and later delivered it to his home. Anderson stated that "[t]hree years later, in June of 2009, I drove past Staples' residence... and saw the trailer right where I had placed it. The trailer had been expanded with two room attachments, one off the rear and one off the side." Anderson said Staples "wanted a particular model with front and rear porches and dual patio sliding doors, because he intended to enclose the rear patio at a later date, which he did." Anderson also said that "Staples told me he had a run-in with a neighbor who worked for the City of San Diego. He said the neighbor had a grudge and got the building department to write him a letter about his park trailer." Anderson denied that Staples had "demanded his money back."
With respect to reporter Vara, Anderson stated: "When... Vara... interviewed me, she asked for proof of a home health care permit issued by the County of San Diego, and I gave it to her. She was visibly disappointed that I had it. I have attached a copy of the permit and a photo of the poster standing at the front door of the same type trailer the Trents and Staples bought. Vara's cameraman filmed the permit. None of this appeared in Vara's broadcast. [¶]... I gave to Vara the County of San Diego handouts on implementing a home health care trailer. Vara agreed to give my papers back in the morning, and I was to give her the list of 3, 500 mobilehomes for which permits are on file with the County, including health care trailers. When she did not show up the next morning, I called her and she said she gave the papers to the County of San Diego. I was astounded when she said in her broadcast story that the defendant County said the documents did not pertain to implementing a home health care trailer. She also edited out of the broadcast the face of the permit I had shown to her, and 'de-focused' the documents."
Anderson also stated that "[c]ontrary to" Elias's assertions, the "product" is built to federal manufacturing safety standards and cited 42 U.S.C. section 5401 et seq. to support this assertion. Anderson additionally said the "product's" tongue and axle assembly are removable for placement on a permanent foundation; and there is "a hurricane earthquake strap built into the product at the factory." However, he did not identify the "product" to which he was referring in making these assertions. Anderson also attached a copy of an "inspector's certification" and a form pertaining to a motor home installed as a permanent fixture on the land.
E. Court's Ruling
After considering the parties' briefs and supporting evidence and conducting a hearing, the court granted defendants' anti-SLAPP motions. The court found "defendants established their speech... is protected speech under the provisions of the anti-SLAPP statute..., [and] without weighing the credibility of the evidence presented, [Anderson] failed to establish a probability of prevailing on the merits of his defamation claim as a matter of law...." The court also sustained the evidentiary objections filed by McGraw-Hill, and overruled Anderson's evidentiary objections.
DISCUSSION
I. Anti-SLAPP Statute
The Legislature enacted section 425.16, known as the anti-SLAPP statute, to allow a court to dismiss, at an early stage in the litigation, unmeritorious claims arising from constitutionally protected activity. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1159.) Courts must broadly construe the statute to further the legislative intent of promoting participation in matters of public significance. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199.)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. First, the court decides whether the defendant has met its burden to show the challenged cause of action is one arising from constitutionally protected activity, as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Second, if this showing has been made, the court must determine whether the plaintiff has met its burden to show a probability of prevailing on the claim. (Ibid.) The court's ruling on a section 425.16 motion is subject to our independent review. (Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1159.)
II. Protected Activity
Section 425.16, subdivision (e) defines protected activity to include: "(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."
We agree with defendants that Anderson's claims arise from speech that comes within the third category: "oral statements[s]... made in a place open to the public or a public forum in connection with an issue of public interest...." (§ 425.16, subd. (e)(3).)
First, the challenged statements were made in a public forum. The statements were heard during the Channel 10 television broadcast available to be viewed by residents throughout the San Diego area. A "widely disseminated television broadcast" is " 'undoubtedly a public forum' " subject to the anti-SLAPP statute. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006; see M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 629.)
Additionally, defendants' statements were made "in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) Courts have recognized that information that would be material to potential consumers of a product can be a matter of public interest under the anti-SLAPP statute. (See Gilbert v. Sykes (2007)147 Cal.App.4th 13, 23-24; Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 899.) "Consumer information... when it [potentially] affects a large number of persons... generally is viewed as information concerning a matter of public interest, " as long as it "contribute[s] to the public debate." (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898; see DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 564, 566-567 [claim that manufacturer of blood thinner disseminated false information concerning widely-used drug's effectiveness concerned an issue of public interest because of the number of persons allegedly affected and the seriousness of the conditions treated].)
In Wilbanks, the defendant, "acting as a 'consumer watchdog, ' " established a Web site warning consumers of the hazards of viatical settlements, and, in particular, warned about dealing with the plaintiffs, who were allegedly under investigation by the Department of Insurance. (Wilbanksv. Wolk, supra, 121 Cal.App.4th at pp. 889-890.) The court held that although the plaintiffs were "not in the public eye" and their business practices neither affected a large number of people nor involved "a topic of widespread public interest, " the public issue requirement of section 425.16 was met because "the viatical industry touches a large number of persons, " and the information provided was in the nature of helpful consumer protection information about persons who the defendant believed "engaged in unethical or questionable practices." (Wilbanks, at pp. 898-900.)
The claims in this case similarly arose from an issue of public interest. The broadcast provided consumers with information pertaining to RVs marketed and sold to be used as permanent residences. Elias's declaration showed that many County residents had inquired about this use, and that residents were not well informed as to the governing codes and zoning ordinances with respect to these types of trailers. A primary focus of the broadcast was on the County's policy position that the type of RVs sold by Anderson violated County code requirements when used to provide additional permanent living space on residential property. The broadcast warned consumers considering a purchase of this type of RV not to expect to use the trailer for this purpose, and thus contributed to the public discussion on matters impacting housing and the legal use of residential property.
In arguing the statements made in the broadcast do not constitute a matter of public interest, Anderson relies on World Financial Group, Inc. v. HBW Insurance & Financial Services, Inc. (2009) 172 Cal.App.4th 1561. In World Financial Group, the plaintiff sued a competitor business and its agents for misappropriating trade secrets and utilizing confidential information to solicit the plaintiff's associates and customers. (Id. at pp. 1564-1566.) The defendants moved to dismiss the complaint under the anti-SLAPP statute, and the trial court found the claims were not subject to the statute. (Id. at pp. 1566-1567.) In affirming, the appellate court rejected the defendants' argument that the issue concerned one of public interest because the allegedly wrongful communications pertained to " 'the pursuit of lawful employment' " and to " 'workforce mobility and free competition.' " (Id. at p. 1569.) The court explained that in evaluating the first prong of the anti-SLAPP statute, a court must focus on the " 'specific nature of the speech rather than the generalities that might be abstracted from it.' " (Id. at p. 1570.) Applying this principle, the court found defendants' communications were not " 'about' these broad [social] topics, nor were they designed to inform the public of an issue of public interest." (Id. at p. 1572.) Instead, the court found they "were merely solicitations of a competitor's employees and customers undertaken for the sole purpose of furthering a business interest." (Ibid.) The court emphasized that the challenged statements did not concern an issue of public interest because they were merely "part of a competitor's pitch to [the plaintiff's] associates" and were "motivated solely by the competitor's desire to increase its sales ranks."(Id. at p. 1573.)
In this case, the information about the suitability of the RVs for long-term residential use was the specific topic of the allegedly defamatory statements. Thus, unlike World Financial Group, the challenged statements pertained directly to the matter of public concern. Although the statements also related to the individual defendants' personal disputes with Anderson, the statements were published as part of a consumer report on the broader issue of residential use of RVs. Thus, the statements were sufficiently connected to an issue of public interest to constitute protected speech under section 425.16, subdivision (e)(3).
Because we conclude the challenged statements fall within section 425.16, subdivision (e)(3), we do not address the alternate argument asserted by the County and McGraw-Hill defendants that the statements were made in connection with an issue under consideration or review by a governmental agency. (See § 425.16, subd. (e)(2).)
III. Probability of Prevailing
Because defendants met their burden to show Anderson's claims arose from protected activity, the burden shifted to Anderson to show a probability of prevailing on his claims against each defendant.
To meet this burden, Anderson was required to present evidence to demonstrate that his defamation claim is " ' "supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted... is credited." ' " (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) In deciding the potential merit issue, the trial court considers the parties' pleadings and admissible evidentiary submissions. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The court does not weigh the credibility or compare the strength of competing evidence, but merely determines if there is sufficient evidence to show the plaintiff can satisfy each element of the claim. (Ibid.)
To prevail on a defamation or slander cause of action, a plaintiff must prove "the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage." (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179; see Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 27.) Additionally, under California law, a private figure plaintiff seeking compensatory damage must prove the defendant acted negligently in making the defamatory statement. (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 274; Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 742; Carney v. Santa Cruz Women Against Rape (1990) 221 Cal.App.3d 1009, 1016.)
Under these legal principles, we examine whether Anderson showed a probability of prevailing against each set of defendants.
A. Slander Claim Against Defendants County and Elias
Elias spoke twice during the television broadcast. First, after reporter Vara stated that Trent's RV units were "forced out by the County, " the broadcast shows Elias in her office, and Elias states "They are not permanent housing" because "California has designated these as recreational vehicles and so they are to be treated as such. They got a VIN number; they got a license plate." Later during the broadcast, after Vara states that the County determined Anderson's paperwork did not "pertain[ ] to what Anderson sells, " the broadcast again shows Elias in her office, and Elias states: "He is wrong and you don't want to continue his misleading by calling it something it's not."
These statements do not support a defamatory cause of action against Elias or the County. First, the statements are absolutely privileged. "A privileged publication... is one made... [i]n the proper discharge of an official duty." (Civ. Code, § 47, subd. (a).) This privilege broadly extends to all state and local officials who engage in the policy-making process and to communications made within their official duties. (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 500-501; see Maranatha Corrections, LLC v. Department of Corrections (2008) 158 Cal.App.4th 1075, 1088-1089; Morrowv. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1440-1443; Copp v. Paxton (1996) 45 Cal.App.4th 829, 839-844.)
Elias made the allegedly defamatory statements in the exercise of her official duties, which include policy making and keeping the public informed of County code provisions. Elias appeared in the broadcast to discuss and explain the County's policy regarding park model RVs, an issue that is within the scope of Elias's official responsibilities. Consequently, Elias's statements were protected by the official duty privilege.
Additionally, even if the statements were not protected by the privilege, there is no showing the statements were false or defamatory. Elias stated that the County does not consider park model RVs to be permanent housing because under state law they are considered to be vehicles. This statement was not defamatory - it merely explained the County's position and did not pertain specifically to Anderson. Even if Anderson does not agree with Elias's legal position, it is undisputed that Elias accurately stated the County's official position regarding park model RVs.
Additionally, with respect to Elias's statement, "He is wrong and you don't want to continue his misleading by calling it something it's not, " Elias stated in her declaration that she made this statement in response to Vara "advis[ing]" her that Anderson was making representations that these trailers could be used as permanent housing. Anderson does not challenge the validity of this explanation, but states that Vara edited the broadcast in such a way as to make Elias's statement appear as an accusation against Anderson and that this accusation was false. However, for purposes of determining whether Elias and the County are liable, the statements must be considered in light of the entire interview, not just the portions that the TV station chose to broadcast. (See Crowe v. County of San Diego (9th Cir. 2010) 593 F.3d 841, 878; see also Montandon v. Cox Broadcasting Co. (1975) 45 Cal.App.3d 932, 935-937.) Elias's reference to "misleading" was not defamatory because it was not an accusation against Anderson, but rather was a response to the reporter's statement that Anderson was representing facts inconsistent with the County's legal position.
B. Slander Claim Against Defendants Staples and Trent
Anderson alleged Staples and Trent committed slander when they called him a "liar." Anderson did not meet his burden to show he will prevail on this claim because he did not present admissible evidence showing the substance of the charge was false and/or that these defendants acted negligently in believing he had lied to them.
We reject defendants' argument the statements were not actionable because they were "opinions." Defendants' statements that Anderson was a "liar" reasonably implied that Anderson intentionally misrepresented the true facts pertaining to the laws applicable to park model RVs. Because the issue whether Anderson made this misrepresentation could be proved true or false, defendants' assertion was a factual statement, rather than an opinion. (See Carver v. Bonds, supra, 135 Cal.App.4th at p. 346; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1020.)
Truth of the challenged statements is a complete defense to a slander claim. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132; Gilbert v. Sykes, supra, 147 Cal.App.4th at p. 28.) This defense applies if the substance of the statement is true, even if there is a slight inaccuracy of the details. (Gilbert, supra, 147 Cal.App.4th at p. 28; see Ringler Associates Inc. v. Maryland Casualty Co., supra, 80 Cal.App.4th at p. 1181.) Moreover, if the publication involves a matter of public concern, the First Amendment imposes upon the plaintiff the burden of proving falsity. (Carver v. Bonds, supra, 135 Cal.App.4th at p. 344; Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375; Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646, fn. 5; see Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 775-777.)
In support of their anti-SLAPP motion, Staples and Trent presented evidence that Anderson operated a company called "Instant Mobile House" that sold park model RVs; each informed Anderson they were interested in purchasing one of these trailers for additional living space on their property that would be used by relatives with health care problems; Anderson told them the trailers could be used for this purpose without limitation and that the trailers conformed to building codes; Anderson delivered the product to their property; and both later discovered the applicable local ordinances did not allow them to use the trailer for long-term residential purposes.
Anderson denied that he made any of the specific representations attributed to him by defendants and affirmatively stated he "did not lie" to Trent or Staples. But he did not dispute he knew these purchasers intended for their relatives to live in the trailers on a permanent basis and that he delivered the RVs to the Trent and Staples residences. Thus, even if Anderson did not specifically tell Staples and Trent they could legally use the RVs on their property, the undisputed record supports Trent's and Staples's claims that Anderson made statements leading them to believe they could use the trailers as permanent additional housing and that this information later turned out to be inaccurate.
Anderson does not challenge this conclusion on appeal. Anderson instead argues that his statements to Trent and Staples did not misrepresent the true facts because the County was wrong in taking the position that the RV trailers could not be used on private property. In support he discusses at length the governing state laws (see, e.g., Health & Saf. Code, § 18007, subd. (a), § 18009.3, subd. (a)), and the language of various current and prior County ordinances. Citing to these state and local laws, Anderson argues that the governmental entities could or should have permitted Trent and Staples to occupy the park model RVs on their private property because the trailers could be placed on the foundation with the axle and tongue removed.
These arguments are unhelpful to Anderson's position. The record was undisputed that neither the County nor the City would allow the type of recreational vehicles that Anderson was selling to be permanently placed on a private property for residential use. With respect to Trent, soon after the sale she discovered the County would not permit her to use the RVs for living space on her property, and she later sold them for a loss. With respect to Staples, the record was undisputed that the City cited Staples for maintaining the RV on his property without a permit.
The fact that Anderson disagreed with these administrative decisions or believed they were not required by state or local law is irrelevant to the issue here. To show a probability of prevailing on his claim, Anderson was required to proffer competent and admissible evidence showing the falsity of the alleged defamatory statement. (See Carver v. Bonds, supra, 135 Cal.App.4th at p. 344.) He was also required to show that Trent and Staples acted negligently in concluding he lied to them when he represented they would be entitled to use their trailers for the purposes for which they were sold. (See Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at p. 274.)
Anderson did not establish these elements of his claim. Trent and Staples were entitled to rely on the positions taken by the governmental officials in believing that Anderson lied to them. This is true regardless of whether Anderson agrees or disagrees with the legal positions taken by the City or County officials. By failing to show he was unaware of these local ordinance issues and/or to show that the County or City actually allowed the purchased park model RV trailers to be permanently placed on private property, Anderson did not establish that Trent and Staples made false statements when they said he lied about this subject and/or that they acted negligently in believing he had lied to them.
Anderson alternatively argues he did not lie because Staples and Trent could have obtained a home health care permit for the trailers. However, Anderson did not present any admissible evidence showing that Staples or Trent could or would have qualified for this type of permit, or that this permit would allow residents to occupy a park model RV on private property. Moreover, Anderson did not state in his declarations that he told Staples and Trent that the use of their trailers was dependent on their ability to obtain this permit.
Anderson also argues that Staples committed slander when he called Anderson a "thief" during the broadcast. However, viewing this statement in context of the entire broadcast, a reasonable person would not conclude that Staples was suggesting that Anderson actually committed a "theft" under the criminal statutes. In reviewing an alleged defamatory meaning, " 'the context in which the statement was made must be considered.... [¶] 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. [Citation.]' " (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064.) Under this rule, a reasonable viewer of the broadcast would understand that the theft allegation was essentially another way of asserting that Anderson misled Staples when Staples purchased the park model RV. Thus, the same analysis with respect to the "liar" charge applies equally to the theft allegation, and we conclude it is not actionable.
On the record before us, Anderson failed to present competent and admissible facts showing the substance of the statements made by Staples and Trent were not true and/or that these defendants acted negligently in believing them to be true. Thus, he could not establish a probability of prevailing on his slander claim against these individuals.
C. Slander Claim Against Defendants McGraw-Hill and Vara
With respect to his claims against McGraw-Hill and reporter Vara, in his complaint Anderson identifies only Vara's statement that Trent was "forced out by the County" as false and misleading.
The facts show the gist of this statement was true. Although the County did not literally force Trent to remove the trailers, it accomplished this same goal by telling her it was illegal and in violation of the codes and by refusing to inspect her room addition until the trailers were removed. Additionally, although Staples continued to keep his trailer on his property (despite the code violation notice), a viewing of the television broadcast shows that Vara's "forced out" comment related solely to Trent, and not to Staples.
In his appellate briefs, Anderson identifies several additional factual grounds for his slander claims against Vara and McGraw-Hill. First, Anderson contends that Vara improperly edited out portions of her interview with Elias, leaving "in the defamatory material." However, the record does not show a reasonable listener would interpret Elias's edited televised statements to have a false or defamatory meaning. Although Elias asserted that Anderson was "wrong" and "misleading, " viewed in context of the entire broadcast, Elias was simply stating that Anderson's assertions were inconsistent with the County's legal position regarding the type of RV trailers sold by Anderson. As discussed above, this statement was not defamatory.
Second, Anderson directs us to Vara's assertion that Anderson did not follow up on his statement that he would give Vara a list of 3, 500 "satisfied customers." In the proceedings below, Anderson submitted his declaration stating that he told Vara he would give her a list of 3, 500 RV trailers for which permits (including health care permits) were on file with the County, and claimed that Vara never returned to obtain the list. These assertions do not show Vara's televised statements were materially or substantially untrue. The critical undisputed fact was that Anderson communicated to Vara that the County had issued more than 3, 500 permits allowing park model RV trailers to be located on private property, and that he would give Vara proof of this assertion, but he never provided this information to Vara. Vara's report of this version of the events was essentially accurate.
Third, Anderson contends the broadcast was false and misleading because Vara did not discuss home health care permits or whether the County believed home health care permits would allow the trailers. However, Anderson failed to submit any admissible evidence showing the health care permit had any applicability to the subject of the broadcast. (See Wilcox v. Superior Court (1994)27 Cal.App.4th 809, 823, 824, 830 [to establish a probability of prevailing plaintiff must present competent, relevant and admissible evidence].)
On appeal, Anderson argues that he attached documents to his declaration that support his claim. However, we have reviewed these documents, and they are unhelpful to his case. For example, one of the attached documents is a three-page permit issued to a person identified as "MARKLE M TR (DCSD)." The document states that it is effective on October 16, 1998 and expired on October 2001. Although there is a notation at the bottom of the permit identifying the "description of the work" as "Health Care Trailer, " there was no foundational evidence showing who prepared the document, that this document pertains to a park model RV, or that the document has any relationship to the park model RVs purchased by Staples and Trent. Thus, the court did not err in concluding the document lacked adequate foundation and was irrelevant to establishing a probability of prevailing. Anderson also attached to his declaration a copy of a photograph showing a trailer with a sign stating: "HANDICAP FRIENDLY COTTAGE" and "REGISTERED AS AN R.V." Even assuming this document was properly authenticated, Anderson does not explain, nor is there any basis for concluding, that this document supports his slander claim.
Further, although Anderson says he gave Vara documents showing the County permitted the RVs to be placed on private property, there is no evidence that Vara did not properly transmit Anderson's documents to the County or that she did not accurately report the County's response. Additionally, Vara's actions in reporting the County's response to Anderson's claims was privileged. A communication about the substance of official or judicial actions or proceedings is absolutely privileged. (Civ. Code, § 47, subd. (d).)
Finally, to the extent Anderson seeks to hold Vara and McGraw-Hill liable for the statements about Anderson being a "liar" and "thief, " the argument fails. Under California law, "one who republishes a defamatory statement is deemed thereby to have adopted it and so may be held liable, together with the person who originated the statement, for resulting injury to the reputation of the defamation victim." (Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at p. 268.) However, in this case, we have concluded that neither Staples nor Trent made a defamatory statement. Thus, there is no basis for holding McGraw-Hill or Vara liable for their statements. (See Carver v. Bonds, supra, 135 Cal.App.4th at p. 348.)
IV. Evidentiary Rulings
Anderson contends the court erred in sustaining McGraw-Hill's evidentiary objections to his evidence, and in overruling his objections to defendants' evidence. However, by failing to cite any legal authority in support of the argument, or to explain the factual basis of these contentions, Anderson has waived his rights to assert these errors.
Notwithstanding this waiver, we briefly address Anderson's specific challenges to the court's evidentiary rulings. Anderson argues the court erred in sustaining objections to his statements that: (1) he drove by Staples's home and saw that Staples had expanded the trailer Anderson had sold him; (2) he had not been the subject of news stories before the Channel 10 broadcast. We agree the court erred in sustaining these objections, and have considered this evidence in our analysis.
Anderson also contends the court erred in sustaining defendants' objection to the three-page permit attached to his declaration. However, the court properly sustained the objection to this document because there was no foundation showing the document was authentic, fell within a hearsay exception, and/or was relevant to the issues before the court.
Anderson additionally contends the court erred in overruling his objections to respondents' submission of documents that purport to be printouts from his Web site, dated October 2009. We agree that this information was not properly authenticated, and is not relevant to the anti-SLAPP issues because there was no evidence the documents appeared on Anderson's Web site at the time Anderson sold the RV trailers to defendants or when the Channel 10 broadcast appeared. Thus, the information is not relevant to our review of the appeal, and we have not considered this information.
DISPOSITION
Affirmed. Anderson to bear respondents' costs on appeal.
WE CONCUR: HUFFMAN, Acting P. J., McDONALD, J.