Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RG08-400868.
RUVOLO, P. J.
I.
INTRODUCTION
Oakland City Councilmember Desley Brooks (Brooks) sued the San Francisco Chronicle (the Chronicle) and a Chronicle reporter, Chip Johnson, for defamation in relation to a column Johnson wrote, and the Chronicle published, entitled “Oakland City Hall long plagued by corruption, inaction.” The column referred to an investigation into Brooks’s alleged receipt of illegal kickbacks, among other allegations of malfeasance, conducted by both the City of Oakland’s Public Ethics Commission (Ethics Commission) and the Alameda County District Attorney (District Attorney). Brooks claims she was defamed by a single sentence in the column which states that “nothing was done when allegations of illegal kickbacks were raised” against Brooks “after police investigators linked bank deposits made by the mother of one of Brooks’[s] employees to several personal checks for $1,200 written to Brooks (exactly half the employee’s paycheck).”
Applying California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, the trial court dismissed Brooks’s lawsuit. We affirm. Brooks has not shown that she will probably prevail on her defamation claim because the column was absolutely privileged under Civil Code section 47, subdivision (d)(1), which protects “a fair and true report in, or a communication to, a public journal, of... [a] public official proceeding.”
All statutory references are to the Code of Civil Procedure.
II.
FACTS AND PROCEDURAL HISTORY
At all times relevant to this action, Brooks was a member of the Oakland City Council. In August 2005, the Chronicle began reporting that the District Attorney had launched an investigation into allegations that Brooks had employed Christen Tucker, the daughter of Brooks’s boyfriend, as a fulltime aide, at a salary of $5,000 a month, while Tucker was simultaneously enrolled as a fulltime student at Syracuse University in upstate New York. The article also contained allegations that Tucker “had bragged [to an acquaintance] about sharing some of the money [Tucker] earned with the councilwoman herself.”
Eight months later, in April 2006, the Ethics Commission launched its own investigation into the allegations, specifically “whether Councilmember Brooks authorized payment to Ms. Tucker for work that Ms. Tucker did not or could not perform” and “whether Councilmember Brooks received any money from Ms. Tucker in return for being placed on the City payroll.” A month later, on May 24, 2006, the Chronicle reported that Brooks, who was seeking reelection, was “the target of a probe” by the District Attorney “into the hiring of her boyfriend’s daughter, who was enrolled full time at Syracuse University, and allegations that she took kickbacks from the young woman.” As of the briefing of this appeal, public officials have not taken any action following their investigation into these allegations against Brooks.
On June 24, 2008, the Chronicle published the column authored by Johnson which contains the allegedly defamatory sentence. The column is entitled “Oakland City Hall long plagued by corruption, inaction.” The column also appeared on the Chronicle’s affiliated website, SFGate.com, under the title “Time to probe corruption in Oakland City Hall.” Unlike a number of Johnson’s earlier columns, the focus of this column is not Brooks, but instead, City Administrator Deborah Edgerly. Edgerly was asked to step down by Oakland Mayor Ron Dellums after a police report showed she had bullied and threatened officers after they arrested her nephew. The column noted that, despite the mayor’s ultimatum, Edgerly continued coming to work as if nothing had happened, and the mayor did not “have the resolve to act.”
Brooks was the focus of several columns since her election to the City Council in which Johnson raised questions about her spending, argued against her proposals, and criticized her behavior.
In the column, Johnson urged that “it’s time for a higher authority to take a look at operations inside Oakland City Hall.” He called on California Attorney General Jerry Brown to step in, concluding that “Oakland desperately needs some help—and quickly.” To illustrate the urgency of the situation, Johnson listed a series of misdeeds by Oakland city officials including the sentence referring to Brooks which spawned this lawsuit: “Two years ago, nothing was done when allegations of illegal kickbacks were raised against District Six Councilwoman Desley Brooks, another of Edgerly’s allies, after police investigators linked bank deposits made by the mother of one of Brooks’[s] employees to several personal checks for $1,200 written to Brooks (exactly half the employee’s paycheck).” Utilizing a litany of examples, of which the reference to Brooks was only one, Johnson implored, “[t]hrough all the smoke and mirrors surrounding the latest debacle, it’s obvious to the average Oakland resident––like me––that there is something terribly wrong with the way business is conducted in Oakland.”
On July 29, 2008, Brooks filed a complaint against the Chronicle and Johnson alleging a single cause of action for defamation. She claimed that the June 24, 2008 Chronicle column defamed her because it falsely reported that “the city employee’s mother gave Desley Brooks a kickback which amounted to half of the employee’s wages.” The Chronicle filed an answer on October 15, 2008. On November 13, 2008, the Chronicle filed its “Special Motion to Strike” under California’s anti-SLAPP statute. On March 11, 2009, Brooks filed her first amended complaint, which was substantially identical in all pertinent respects to the original complaint.
On April 1, 2009, the superior court issued a detailed order granting the Chronicle’s anti-SLAPP motion and striking Brooks’s first amended complaint in its entirety. The court found that the Chronicle “easily satisfie[d]” its threshold burden of showing that the challenged cause of action arises from an act in furtherance of the right of free speech in connection with a public issue. The court then found that Brooks had not met her burden of establishing a probability of success on the merits “both because the challenged column was not provably false and because the column was absolutely privileged under the fair reporting privilege of Civil Code section 47.” This appeal followed.
III.
DISCUSSION
A. Brooks’s Defamation Claim Falls Within the Scope of the Anti-SLAPP Statute
Under the anti-SLAPP statute, any “cause of action... arising from any act of [the defendant] in furtherance of the person’s right of petition or free speech... in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
The anti-SLAPP statute creates “ ‘a two-step process for determining’ whether an action should be stricken as a SLAPP” under section 425.16. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) First, the court decides “whether the defendant has made a threshold showing that... the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech... in connection with a public issue.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon), citing § 425.16, subd. (b)(1).)
To make its showing under the first step of the analysis, a defendant need only show that the alleged conduct “underlying the plaintiff’s cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043 (Braun), accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) Subdivision (e) of the anti-SLAPP statute covers: “(2) any written or oral statement... made in connection with an issue under consideration or review by a legislative... body, or any other official proceeding authorized by law;... (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.” (§ 425.16, subd. (e).) If the statute applies––i.e., if the defendant’s alleged conduct falls within one of the categories enumerated in section 425.16, subdivision (e), then the burden shifts to the plaintiff to demonstrate a probability of success on its claims. If this burden cannot be satisfied, the claims must be stricken. (Ibid., Equilon, supra, 29 Cal.4th at p. 67.)
In the proceedings below, Brooks did not dispute, and the trial court properly found, that the sole cause of action for defamation in Brooks’s complaint fell within the ambit of the anti-SLAPP statute. We agree. Brooks’s cause of action alleging defamation falls squarely within the scope of the anti-SLAPP statute because it targets the Chronicle’s free speech rights in connection with an issue under consideration or review by the Ethics Commission and the District Attorney (§ 425.16, subd. (e)(2)), and also because it targets the Chronicle’s free speech rights in connection with an issue of public interest (§ 425.16, subd. (e)(4)).
B. Brooks Failed to Carry Her Burden of Showing a Probability of Prevailing on the Merits
Because the anti-SLAPP statute undoubtedly applies here, the burden shifted to Brooks to demonstrate a probability of prevailing on the merits. (Equilon, supra, 29 Cal.4th at p. 67; § 425.16, subd. (b)(1).) This means that Brooks must show that her defamation claim is both “legally sufficient, ” and that she has “admissible evidence” to support it. (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519. “In making this assessment, the court must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate those defenses.” (Ibid.)
We agree with the trial court’s conclusion that Brooks has not met her burden of establishing a probability of success on the merits because the Chronicle’s column was absolutely privileged under Civil Code section 47, subdivision(d)(1). This section makes privileged “a fair and true report in, or a communication to, a public journal, of [a] public official proceeding, ... or... anything said in the course thereof.”
Civil Code section 47, subdivision (d) states that a privileged communication is one that is made: “(d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.”
If a court finds that an allegedly defamatory communication falls within the scope of Civil Code section 47, subdivision (d)(1), then the statement is absolutely privileged regardless of whether the statement is a verifiable fact or what the defendant’s motive was for reporting it. (See McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974.) The absolute nature of the privilege means that even if the “print media publish an accurate report of a statement they know to be false, the protective cloak of [the fair and true report privilege] remains intact.” (Ibid.) Likewise, “malice on the part of the media, ” even if such malice could be shown, will not “defeat the media privilege codified” by Civil Code section 47, subdivision (d)(1). (Howard v. Oakland Tribune (1988) 199 Cal.App.3d 1124, 1128 (Howard); accord, Green v. Cortez (1984) 151 Cal.App.3d 1068, 1074 [explaining that privilege has been absolute since the Legislature amended the fair and true report privilege in 1945 and deleted the qualifying requirement that such privileged publications be made “ ‘without malice’ ”].)
The trial court found that the Chronicle should be allowed to invoke the fair and true report privilege, which is designed to protect media reports about official proceedings, because the investigations of malfeasance conducted by the Ethics Commission and the District Attorney qualified as “ ‘public official proceeding[s].’ ” (Civ. Code, § 47, subd. (d)(1).) We agree. As employed in Civil Code section 47, subdivision (d)(1), the term “public official proceeding” has been given an expansive interpretation by the courts. Investigative findings compiled by an administrative agency have been found to constitute a “public official proceeding, ” and media reports of such findings are absolutely privileged. (See, e.g., Howard, supra, 199 Cal.App.3d at pp. 1127-1128 [newspaper report of Department of Education’s audit of child care center absolutely privileged].)
Moreover, contrary to Brooks’s argument on appeal, the privilege is not limited to information that can be found in written documents. California law has long held that members of the media may report on theories and representations made by government officials, even if those representations are made orally, in an extrajudicial context, rather than in official documentation. (See, e.g., Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 925 [“[t]he privilege embraces preliminary conversations attendant upon such [official] proceeding[s] so long as they are in some way related to or connected to the pending or contemplated action”]; see also Braun, supra, 52 Cal.App.4th at p. 1051 [privilege covered article detailing the investigation by the state auditor, statements made by persons concerned with the audit, and background reports and charges leading up to the investigation].)
In her primary argument on appeal, Brooks claims the privilege does not apply in this case because the defamatory statement published by the Chronicle did not qualify as a “fair and true report.” (Civ. Code, § 47, subd. (d)(1).) Instead, she claims “the challenged statement [in] her defamation claim... is an outright lie or falsehood.” She then parses the sentence that appeared in the Chronicle to dissect the true portions from the allegedly defamatory, untrue portions. While she concedes that “indeed, two years earlier, allegations of kickbacks were raised” against her, she claims the column contains “an outright lie or falsehood” in its statement that “ ‘police investigators linked bank deposits made by the mother of one of Brooks’[s] employees to several checks for $1,200 written to Brooks (exactly half the employee’s paycheck).’ ”
Brooks points out that no evidence was offered that any police officer linked any bank deposits in any amount to personal checks written to Brooks. She proffered a declaration in these proceedings indicating, “I have conducted a thorough search of my banks records and I have not seen nor have I been made aware that any employee, nor any other person on behalf of any employee, has ever deposited $1,200 or any amount of funds into my bank account.” She also submitted proof that the mother of Christen Tucker, the employee who is at the center of the kickback controversy, died in 2001 before Brooks was even elected to the Oakland City Council.
The California Supreme Court has set forth the following test for determining whether a publication qualifies as a “fair and true” report: “ ‘[T]he publication [is] to be measured by the natural and probable effect [it] would have on the mind of the average reader. [Citations.] The standard of interpretation to be used in testing alleged defamatory language is how those in the community where the matter[ ] [was] published would reasonably understand [it]. [Citation.]’ ” (Kilgore v. Younger (1982) 30 Cal.3d 770, 777.) The standard does not require a media defendant “to justify every word of the alleged defamatory material that is published. [Citation.] The media’s responsibility lies in ensuring that the ‘gist or sting’ of the report––its very substance––is accurately conveyed.” (McClatchy, supra, 189 Cal.App.3d at p. 975.) Whether a publication qualifies for protection under the fair and true report privilege is a question of law for the court to determine. (Id. at p. 976.)
Thus, in considering the “gist or sting” of a report containing alleged defamatory statements, courts have applied the privilege to cases where the report contains some errors. In words fully applicable to this case, this division, in Carver v. Bonds (2005) 135 Cal.App.4th 328 (Carver), noted that “the ‘fair and true’ requirement ‘does not limit the privilege to statements that contain no errors.’ [Citation.] ‘Under California law, a newspaper report is ‘fair and true’ [under Civil Code section 47, subdivision (d)(1)] if it captures ‘ “the substance, the gist, the sting of the libelous charge.” ’ [Citations.] The news article need not track verbatim the underlying proceeding. Only if the deviation is of such a “substantial character” that it “produce[s] a different effect” on the reader will the privilege be suspended.’ ” (Id. at p. 351.) This standard recognizes that “erroneous statement is inevitable in free debate, and... it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need to survive.’ ” (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 271-272.)
Cases have found that the “gist or sting” criteria were satisfied in situations similar to the circumstances presented here. In Carver, 135 Cal.App.4th at page 352, this division found a news article misstating the number of Medical Board complaints against a doctor was substantially true, holding that the “essential point” was that the plaintiff had received an “unusually large number” of Medical Board complaints. This court found the “effect on the reader” would have been the same whether the news article had cited the correct, lower figure of six complaints instead of the inaccurately reported 22 complaints. (Id. at p. 352.) This court concluded “[t]he article’s references to the Medical Board complaints were therefore privileged even if their number was exaggerated as plaintiff claims.” (Ibid.)
Similarly, in Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, the court found that a newspaper’s errors in the description of the details of a stock scheme from an SEC complaint were not of a “ ‘substantial character’ ” to materially affect the sting or gist of the report. (Id. at p. 1560.) Among other things, the plaintiffs claimed the news report had misattributed ownership of a particular stock to the plaintiffs, and falsely stated that they had published false information about the touted stock. (Id. at p. 1559.) The court held that “[i]t is not necessary to go through each of plaintiffs’ parsing of words and sentences in the articles published by defendants to demonstrate that their quarrel with the language of the articles involves a level of exegesis beyond the ken of the average reader of newspaper articles. The articles fairly describe the gist of plaintiffs’ misconduct.” (Id. at p. 1560.) Despite some inaccuracies in the background detail, the defendants’ characterization of plaintiffs’ activities fairly described “the substance of the proceedings” as detailed in the SEC complaint. (Ibid.) As a result, the articles were absolutely privileged under Civil Code section 47, subdivision (d)(1). (Ibid.)
In Jennings v. Telegram-Tribune Co.(1985) 164 Cal.App.3d 119, a newspaper article reported that the plaintiff had been convicted of tax fraud and tax evasion where plaintiff had instead pleaded no contest to two counts of failing to file tax returns, which were misdemeanors. (Id. at pp. 124-125.) The article also erroneously inflated plaintiff’s unreported taxable income, when the real income “never approached” the amount reported. (Ibid.) The court held both errors were protected by Civil Code section 47, subdivision (d)(1). While the descriptions of the offenses were “perhaps overblown or exaggerated, ” they did not materially alter the gist or sting of the news reports that plaintiff had been convicted of “several serious tax crimes.” (Id. at p. 127.)
Consistent with this line of cases, there is no question that Johnson’s column was a fair and true report describing the official proceedings involving Brooks, because the “ ‘gist or sting’ ” of the challenged statement was true and consistent with the known facts. (McClatchy, supra, 189 Cal.App.3d at p. 975.) The challenged statement basically reported that Brooks was investigated for receiving illegal kickbacks, that the investigation focused on Brooks’s financial dealings with a former employee, and that “nothing was done” as a result of the investigation. All of these statements are fully supported by the documents appearing of record in this proceeding. Consequently, even assuming arguendo that the Chronicle inaccurately conveyed the exact details of the mechanics of the alleged kickback scheme, the challenged sentence accurately captured the “gist or sting” of the allegations leveled against Brooks and any “ ‘ “inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently....” ’ ” (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 244, citing Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224, 227-228.) As the trial court put it, “[a]n ordinary reader, learning that Councilwoman Brooks was being officially investigated for kickbacks in connection with the employment of a staff member, would have the same opinion of Councilwoman Brooks whether or not the challenged phrases were part of Mr. Johnson’s column.” We agree.
Accordingly, the Chronicle is absolutely shielded from liability by the fair and true report privilege (Civ. Code, § 47, subd. (d)(1)), and Brooks is unable to show a probability of success on the merits of her defamation claim. It follows that the trial court properly granted the Chronicle’s anti-SLAPP motion.
IV.
DISPOSITION
The judgment is affirmed.
We concur: REARDON, J., SEPULVEDA, J.