Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BC376895, James R. Dunn, Judge.
Glassman, Browning, Saltsman & Jacobs, Anthony Michael Glassman and Richelle L. Kemler, for Plaintiff and Appellant.
La Follette, Johnson, De Haas, Fesler & Aames, Brian W. Birnie and Diana S. Diskin, for Defendant and Respondent.
KITCHING, J.
Plaintiff and appellant Kwang Yul Cha appeals a final judgment in favor of defendant and respondent Bruce L. Flamm, M.D., following the grant of Flamm’s special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16) and the award to Flamm of $50,711.31 in attorney fees and costs in connection with the special motion to strike.
The issues presented are whether an anti-SLAPP motion lies in these circumstances, and if so, whether Cha met his burden to establish a reasonable probability of prevailing on the merits.
We conclude Flamm met his initial burden to show the defamation action arose out of protected activity, so as to bring the matter within the purview of section 425.16. We also conclude Cha did not meet his burden to demonstrate a probability of prevailing on his defamation claim. Accordingly, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
1. Cha sues Flamm for defamation, based on a 2007 article by Flamm which asserted Cha had “been found guilty of fraud/deception and/or plagiarism.”
On August 31, 2007, Cha, a South Korean medical doctor and fertility specialist, filed a complaint against Flamm, a California medical doctor, for defamation. The complaint included the following pertinent allegations:
In 2001, Cha and two co-authors, Professor Robert Lobo and Daniel Wirth, published an article in the Journal of Reproductive Medicine that reported the results of a double blind randomized study in which various prayer groups in North America and Australia prayed for women chosen at random from a test group of 219 women who were undergoing fertility treatment in South Korea. The prayer study asserted that women for whom the groups prayed were statistically more likely to become pregnant.
The 2001 article “created considerable controversy when published” but was also “the subject of much favorable comment and was cited by the New York Times as the Idea of the Year.”
Flamm “began his crusade” against Cha shortly after the 2001 paper was published and has “written on countless occasions that he believes the Study was fraudulent and a scandal....”
In 2007, Flamm authored an article in the March/April edition of OB/GYN News (the 2007 article). It is this article by Flamm that gave rise to the instant litigation. The 2007 article was headlined “Prayer Study Author Charged With Plagiarism.”
The article stated in relevant part: “Dr. Cha, first author of the prayer study, has now been charged with plagiarism involving a more recent study. According to a Feb. 18 Los Angeles Times article, Dr. Alan DeCherney, editor-in-chief of Fertility and Sterility, concluded that a 2005 article by Dr. Cha and associates was a word-for-word, chart-for-chart copy of a paper previously published by a different author in a Korean medical journal. ‘I’m sure that it’s plagiarism,’ Dr. DeCherney told the L.A. Times.”
With respect to Cha’s co-author Wirth, the 2007 article stated that in May 2004, Wirth “pled guilty to felony charges and was taken into custody by federal marshals.” As for Lobo, the third author of the 2001 prayer study, the 2007 article stated “Columbia University announced that Dr. Lobo had only provided editorial assistance, had actually nothing to do with the alleged research, and could not even verify that the study had ever been conducted.... Dr. Lobo had removed his name from the Cha/Wirth/Lobo paper.”
The 2007 article stated, “In summary, the man who designed and supposedly conducted the prayer study resides in federal prison, and the man originally listed as lead author admits he knows nothing about the alleged research. The only remaining author has now been charged with plagiarism. [¶] This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism.” (Italics added.)
The defamation complaint refers to the italicized sentence in this paragraph as “the Offending Statement.”
Cha pled the offending statement was false and defamatory in that it asserted he “had been found guilty by a court or professional disciplin[ary] body of fraud, deception and/or plagiarism. In fact, not only has Dr. Cha never been found guilty of fraud, deception and/or plagiarism, but he has never been questioned, investigated or charged by any law enforcement agency or professional disciplinary body with any offense relating to the 2001 Article.” The offending statement was “libelous per se” and was “reasonably susceptible of a defamatory meaning.”
2. Flamm’s special motion to strike.
On October 18, 2007, Flamm filed an answer, denying the allegations and asserting various affirmative defenses. Four days later, Flamm filed his special motion to strike, which motion is the subject of this appeal.
Flamm argued the instant case fell squarely within the purview of section 425.16 because his 2007 article was protected activity within the meaning of the statute. Flamm contended the 2007 article was a commentary upon matters of public interest – first, “the astounding claims” of Cha’s 2001 prayer study, and second, the potential import to the scientific community if all three authors of the 2001 prayer study were found to have engaged in various acts of misconduct.
With respect to the merits, Flamm contended Cha could not prevail because the statement in issue was not defamatory. Flamm asserted his 2007 article “fully disclosed the factual bases of his statements regarding [Cha’s] ‘guilt’.... The fact that Dr. DeCherney later stated that this was really a case of duplicate publication does nothing to change the fact that as of March 15, 2007, his assertion of plagiarism still stood.” Further, the article identified Flamm as an OB/GYN. Therefore, the average reader would not have assumed the statements in Flamm’s article had “the weight of a legal opinion.”
Flamm further contended Cha was either a public figure, or at the very least, a limited purpose public figure who voluntarily injected himself into a public controversy; therefore, Cha was required to establish that he would be able to produce clear and convincing evidence that Flamm made his statement with actual malice. Flamm averred Cha would be unable to meet that standard.
Flamm’s supporting declaration stated in pertinent part: “18. I stated in my op-ed article that [Cha] had been ‘charged with plagiarism.’ This communicated only that allegations of plagiarism had been made against [Cha] and that the matter was under investigation. [¶] 19. I further stated in my op-ed article that ‘This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism.’ By the use of the phrase ‘may be,’ this statement communicated only that there was a possibility that, sometime in the future, [Cha] would be conclusively found to have plagiarized [Dr. Kim’s] study... published in the January 2004 issue of the KOREAN JOURNAL OF OBSTETRICS AND GYNAECOLOGY. My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.”
3. Opposition papers.
In opposition, Cha contended Flamm’s conduct was not covered by section 425.16 because there was no public issue or public interest, so that Flamm failed to meet his initial burden in bringing a special motion to strike.
With respect to the merits, Cha asserted the offending statement was false – he had never been found guilty of fraud, deception and/or plagiarism. In support, Cha also quoted the following language in Flamm’s declaration: “My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.” (Italics added.) Cha argued that this statement by Flamm, denying any intent to communicate that Cha had already been found guilty of plagiarism, was an implicit concession that Cha had not been found guilty of plagiarism.
Cha also submitted a declaration from Edward Finegan, Ph.D., a professor of linguistics at the University of Southern California. Finegan construed the offending statement as follows: “ ‘This may be the first time in history’ raises the possibility only that it is not the first time in history. It does not, however, allow the reading that what follows in the complement clause (‘all three authors of [a] randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism’) has not already occurred.”
4. The trial court’s series of rulings in the matter.
On November 20, 2007, after hearing arguments of counsel, the trial court granted Flamm’s special motion to strike. The trial court found the matter came within the scope of the anti-SLAPP statute. As for the merits, the trial court ruled “the statement cited by [Cha] about being ‘found guilty,’ within its context, is not defamatory as a matter of law. The article makes clear that he has only been ‘charged.’ ”
Cha filed a motion for reconsideration, arguing, inter alia, the trial court improperly weighed the evidence in ruling on Flamm’s special motion to strike.
On January 24, 2008, the trial court granted reconsideration on the ground it had committed an error of law by weighing the evidence in connection with the anti-SLAPP motion. At this juncture, the trial court relied on the declaration of Cha’s expert, Finegan, to conclude “on the issue of whether the article is defamatory, [Cha] has met [his] minimal burden that [he] is likely to prevail on that one constituent part of [his] defamation case.” The trial court further ruled Cha “must also show that [he] is likely to prevail on the issue of malice, since the court has already found for purposes of this motion that Dr. Cha is a public figure.” The trial court ordered the parties to meet and confer on a briefing schedule with respect to the issue of malice.
Thereafter, Flamm filed a supplemental brief in support of his anti-SLAPP motion. Flamm asserted Cha’s defamation claim was meritless because Cha failed to show Flamm’s statement was made with actual malice or that it was not substantially true at the time of its publication.
Cha, in turn, reiterated there was “no ‘substantial truth’ as to [his guilt], as no proper authority ever judged him guilty” of plagiarism. Further, Flamm’s statements indicated he knew the difference between being charged with something and being found guilty, yet Flamm chose to elevate the charge of plagiarism into a finding of guilty, in order to portray Cha in the worst possible light. Cha argued this exaggeration by Flamm was prima facie evidence of actual malice.
On April 21, 2008, the matter came on for hearing. The trial court granted Flamm’s anti-SLAPP motion on two grounds: Flamm’s allegedly defamatory statement was “substantially true” and Cha failed to provide clear and convincing evidence that the allegedly defamatory statement was made with actual malice.
On June 4, 2008, the trial court entered an order granting the anti-SLAPP motion and awarding Flamm $50,711.31 in attorney fees and costs. On July 9, 2008, the trial court entered a final judgment in favor of Flamm.
This appeal followed.
CONTENTIONS
Cha contends: an individual’s reputation is a constitutionally protected right in California; the 2007 article did not involve a public issue or a matter of public interest; he is neither an all purpose nor a limited purpose public figure; the trial court erred in assuming certain facts not before it and in overruling his evidentiary objections to Flamm’s declaration; the offending statement in the 2007 article was not substantially true; and Cha presented clear and convincing evidence that Flamm made the offending statement with knowledge of its falsity or with reckless disregard of its truth or falsity.
DISCUSSION
1. General principles related to a special motion to strike.
“A SLAPP suit – a strategic lawsuit against public participation – seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted... section 425.16 – known as the anti-SLAPP statute – to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The purpose of the statute is to encourage continued participation in matters of public significance by preventing abuse of the judicial process. (§ 425.16, subd. (a).) The statute is to “be construed broadly.” (Ibid.)
Section 425.16 describes four categories of protected activity. The third category is “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....” (§ 425.16, subd. (e)(3).) The fourth category involves “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)(4).)
The first two categories involve statements or writings made before, or in connection with, a legislative, executive, judicial or other official proceeding (§ 425.16, subds. (e)(1), (2)), and therefore are not relevant here.
Analysis of a section 425.16 motion requires a two-step process. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) In the first step, the trial court determines whether the defendant has made a threshold showing the challenged cause of action arises from protected activity. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.) If the trial court finds the defendant has made the required showing, it determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Ibid.)
“Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
With these principles in mind, we turn to the issues presented herein.
2. Flamm met his burden of demonstrating Cha’s defamation action arose out of Flamm’s protected activity, so as to implicate the anti-SLAPP statute.
In determining whether the anti-SLAPP statute applies in a given situation, we analyze whether the defendant’s act underlying the plaintiff’s cause of action itself was an act in furtherance of the right of petition or free speech. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause of action fits one of the categories spelled out in section 425.16, subdivision (e). Therefore, we examine whether Flamm’s 2007 article, which is the basis of Cha’s defamation claim, arose out of protected activity by Flamm within the meaning of the statute.
Section 425.16, subdivision (e)(3) provides an act in furtherance of a person’s right of free speech includes “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....”
Here, Flamm’s 2007 article was published in the Ob.Gyn. News, which is distributed to nearly 40,000 obstetricians/gynecologists twice a month. Case law had recognized that “newspapers and magazines are public fora within the meaning of section 425.16, subdivision (e)(3).)” (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1038.)
However, Cha contends Flamm failed to meet his burden under step one because Flamm’s article did not involve an issue of public interest. Cha asserts there was no widespread public interest in allegations of plagiarism against him in relation to the 2005 article.
“[I]n order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.)
In this case, the allegedly defamatory statement was made in that context. Flamm’s 2007 op-ed piece in the Ob.Gyn. News, which asserted Cha was guilty of plagiarism in connection with the 2005 article, impugned Cha’s credibility and went to the veracity of the highly publicized and controversial 2001 prayer study.
Accordingly, we conclude Flamm met his threshold burden to show the defamation action arises from his protected activity within the meaning of section 425.16.
3. Cha did not meet his burden of establishing a probability of prevailing in the defamation action.
Having determined Flamm made the required showing in bringing the special motion to strike, we address whether Cha met his burden to demonstrate a probability of prevailing on the claim.
“[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ [Citations.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citations.]” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.)
a. Elements of the tort.
The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or causes special damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.)
The tort has constitutional ramifications. As explained below, Cha, by virtue of having authored the 2001 prayer study, became a limited purpose public figure. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247 (Sipple).) Therefore, Cha “cannot recover unless he proves by clear and convincing evidence that [Flamm] published the defamatory statement with actual malice, i.e., with ‘knowledge that it was false or with reckless disregard of whether it was false or not.’ New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964).” (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 510 (Masson).)
b. The offending statement was substantially true.
“As in other jurisdictions, California law permits the defense of substantial truth and would absolve a defendant even if she cannot ‘justify every word of the alleged defamatory matter; it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.’ ” (Masson, supra, 501 U.S. at p. 516-517.) “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.’ ” (Id. at p. 517.) In other words, a “slight discrepancy” of facts (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 28) or a “semantic hypertechnicality” (James v. San Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 17) will not defeat the substantial truth defense.
To reiterate, the offending statement in this case provides: “This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism.” (Italics added.) When read in context, this statement is substantially true. The gist of Flamm’s article and the offending statement is that Dr. DeCherney concluded that Cha plagiarized his 2005 article. It is undisputed that at the time the article was published, Dr. DeCherney had indeed come to that conclusion.
Cha argues that the phrase “found guilty” implies that Dr. DeCherney’s charge of plagiarism was adjudicated by some authority. The article, however, does not mention or allude to a court case or other kind of proceeding where a formal “finding” of “guilt” was made. It is clear that Dr. DeCherney was the person who found Cha guilty of plagiarism.
Moreover, the term “guilty” must be read in context. Flamm’s 2007 article was published in the “Advisor’s Viewpoint” portion of the OB/GYN News. It did not purport to state facts about a legal or other adjudicatory proceeding. The word guilty was thus used in the colloquial sense.
In Conroy v. Spitzer (1999) 70 Cal.App.4th 1446 (Conroy), the court rejected a similar argument to the one asserted by Cha here. There the plaintiff argued that the defendant’s statement that the plaintiff had been found “guilty” of sexual harassment denoted that he was found guilty of a crime. The court, however, stated: “Even by the late 20th century not everyone has attended law school—yet—and thus the ordinary person still does not equate the colloquial use of ‘guilty’ with criminal guilt. We agree with the trial court that ‘there is no merit to the argument that the term “guilty” would connote, in the minds of the average reader, a finding of guilt by a court of law.’ Webster’s dictionary recognizes this distinction and defines guilty, inter alia, as ‘justly chargeable with or responsible for a usu[ally] grave breach of conduct or a crime.’ (Webster’s Collegiate Dict. (10th ed. 1996) p. 517, italics added.)” (Conroy, at p. 1453.)
In this case, there was no reason for the ordinary reader to conclude that Dr. DeCherney found Cha guilty of a crime or that Dr. DeCherney adjudicated a charge against Cha because there is no indication in the article that Dr. DeCherney was a judge, juror or other finder of fact or decision maker. Rather, at most, the ordinary reader would conclude that Dr. DeCherney determined that Cha was “justly chargeable” with the ethical breach of plagiarism.
c. Cha did not make a sufficient showing Flamm acted with actual malice.
(1) Cha’s status as a limited public figure required Cha to show by clear and convincing evidence Flamm made the defamatory statement with actual malice.
“In order to prevail on a libel action, public figures must prove, by clear and convincing evidence, that the libelous statement was made with actual malice – with knowledge that it was false or with reckless disregard for the truth. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253.) There are two types of public figures: ‘The first is the “all purpose” public figure who has “achieve[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” The second category is that of the “limited purpose” or “vortex” public figure, an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” ’ (Ibid.) Thus, one who undertakes a voluntary act through which he seeks to influence the resolution of the public issues involved is a public figure. (Id., at pp. 254-255.) The limited purpose public figure ‘loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy.’ (Id., at p. 254.)” (Sipple, supra, 71 Cal.App.4th at p. 247.)
Generally, “authors are considered to have ‘participated sufficiently in public controversies or... otherwise involved themselves in matters of public concern as to be public figures....’ ” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1289.)
On the record presented, we conclude Cha was a limited purpose public figure. By authoring the 2001 prayer study, Cha injected himself into the age-old debate of faith versus science. With the publication of the prayer study, Cha became a public figure with regard to said study and all events and statements relating to it. The subsequent plagiarism controversy reflected not only on Cha’s professional integrity with respect to the 2005 article, but also on the trustworthiness and scientific methodology of the prayer study. Given these circumstances, Cha had the elevated burden of making a prima facie showing he could establish, by clear and convincing evidence, Flamm made the allegedly defamatory statement with actual malice.
(2) Cha did not make a sufficient showing of actual malice.
Actual malice requires the plaintiff to show the defendant made the defamatory statement with knowledge it was false or with reckless disregard for the truth. (Sipple, supra, 71 Cal.App.4th at p. 247.) Cha argues that he made the requisite showing. He contends that statements made in Flamm’s moving declaration, articles relied upon by Flamm when he wrote the 2007 article, and Flamm’s deposition testimony show that Flamm knew the difference between a charge of plagiarism and a finding that Cha was guilty of plagiarism. Cha thus argues Flamm knew that his statement that Cha was “found guilty” of plagiarism was false. However, as we have explained, while the offending statement may not have been entirely accurate, the gist of the statement was true.
In Robertson v. Rodriguez (1995) 36 Cal.App.4th 347 (Robertson), the court rejected an argument similar to the one Cha asserts in this case. There the defendant stated in a mailer that the plaintiff “ ‘was fined for running an illegal business....’ ” (Id. at p. 352.) This statement was not entirely accurate. A city prosecutor investigated charges that the plaintiff with running an illegal business, but the plaintiff was not convicted of anything. Instead, the city prosecutor and the plaintiff reached a civil compromise that required the plaintiff to reimburse the city $1,000 for investigation and enforcement costs. The civil compromise also stated that the plaintiff denied violating the law. (Id. at p. 353.)
Although the defendant had a copy of the civil compromise, the court held that as a matter of law, the plaintiff could not show that the defendant acted with actual malice. (Robertson, supra, 36 Cal.App.4th at pp. 359-360.) The plaintiff argued that the defendant acted with actual malice because he knew that the plaintiff was not “fined.” The court, however, stated that “[t]he argument is unavailing because [the plaintiff’s] definition of a fine is overly narrow in that fines are not limited to criminal cases.” (Id. at p. 360.) The court reasoned that a fine could also be a “civil penalty,” and that the plaintiff’s agreement to pay the city $1,000 as part of a civil compromise was essentially a civil penalty. (Id. at p. 360.)
The same analysis applies here. Cha’s definition of the words “found guilty” is overly narrow. As a matter of law, Cha did not meet his burden of showing that Flamm acted with actual malice.
4. The trial court’s errors, if any, regarding Cha’s evidentiary objections were not prejudicial.
Cha argues that the trial court erroneously overruled his objections to Flamm’s declaration. He further contends that the trial court’s erroneous evidentiary rulings were prejudicial because without the objectionable evidence, Flamm cannot show that Cha was a limited public figure and that Cha’s defamation claim arose out of activity protected by the anti-SLAPP statute. We disagree.
Based on the allegations in Cha’s complaint, Cha’s declaration in opposition to Flamm’s anti-SLAPP motion, and statements made in Flamm’s declaration which were not objected to by Cha, it is clear that the parties do not dispute many facts, including but not limited to the following:
1. Cha has published over 220 articles in scientific journals;
2. Cha’s studies on reproductive medicine were discussed in Time magazine in 1991 and 1994;
3. In 2001, Cha was the lead author of a paper published in the Journal of Reproductive Medicine;
4. The 2001 article stated that prayer might help women become pregnant;
5. The 2001 article created considerable controversy when published and was cited by the New York Times as the Idea of the Year;
6. Immediately following the publication of the 2001 article, Flamm wrote numerous articles attacking the 2001 article as fraudulent and unscientific;
7. In December 2005, Cha published an article regarding premature ovarian failure that appeared in an issue of Fertility and Sterility;
8. In the Los Angeles Times and in The Scientist, Dr. Alan DeCherney charged Cha with plagiarism in relation to the 2005 article;
9. Flamm’s offending statement was made in a 2007 article published in the OB/GYN News; and
10. In the 2007 article, Flamm opined that Cha’s 2001 article did not belong in a scientific peer-reviewed journal.
These undisputed facts support the trial court’s findings that Cha was a limited public figure and that Cha’s defamation claim arose out of activity protected by the anti-SLAPP statute. Accordingly, assuming without deciding that the trial court erroneously overruled Cha’s objections to Flamm’s declaration, the judgment must be affirmed because the trial court’s errors were not prejudicial and did not result in a miscarriage of justice. (See Cal. Const., art. VI, § 13; Evid. Code, § 353, subd. (b).)
DISPOSITION
The judgment is affirmed. Flamm shall recover costs on appeal.
I concur: CROSKEY, J.
KLEIN, P. J., Dissenting.
I respectfully dissent. I would reverse the judgment of dismissal with directions to reinstate plaintiff and appellant Kwang Yul Cha’s (Cha) defamation action.
I agree with the majority that defendant and respondent Bruce L. Flamm (Flamm) met his burden of demonstrating Cha’s defamation action arose out of Flamm’s protected activity, so as to implicate the anti-SLAPP statute. However, unlike the majority, I would hold Cha met his burden to establish a probability of prevailing in the defamation action, so as to require denial of the special motion to strike.
“[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ [Citations.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89, italics added.) In view of the standard applicable to this stage of this proceedings, Cha is entitled to proceed with his defamation claim.
1. Elements of the tort.
The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or causes special damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.)
The tort has constitutional ramifications. As explained below, Cha, by virtue of having authored the 2001 prayer study, became a limited purpose public figure. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247 (Sipple).) Therefore, Cha had the added burden to show, by clear and evidencing evidence, that Flamm made the defamatory statement with actual malice – with knowledge it was false or with reckless disregard for the truth. (Ibid.)
2. Cha made a sufficient showing the offending statement was false.
Flamm’s offending statement provided: “This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism.” (Italics added.)
In an attempt to downplay this statement, Flamm has argued “[b]y the use of the phrase ‘may be,’ this statement communicated only that there was a possibility that, sometime in the future, [Cha] would be conclusively found to have plagiarized [Dr. Kim’s] study.... My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.”
Flamm’s interpretation in this regard is unpersuasive. As Edward Finegan, Cha’s linguistics expert, explained, “ ‘This may be the first time in history’ raises the possibility only that it is not the first time in history. It does not, however, allow the reading that what follows in the complement clause (‘all three authors of randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism’) has not already occurred.”
The offending statement flatly asserts Cha already had been found guilty of plagiarism. The issue becomes whether said statement was true or substantially true.
It is undisputed Cha has not literally been found “guilty” of plagiarism. Flamm’s declaration conceded as much, by asserting “My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.”
Nonetheless, Flamm contends the statement was “substantially true” in that Dr. Alan DeCherney, editor-in-chief of the medical journal Fertility and Sterility, opined in February 2007 that Cha’s 2005 article had plagiarized an article written by Dr. Kim. However, the record reflects Dr. DeCherney was not the final arbiter of the charge of plagiarism. DeCherney merely stated he “would recommend retracting Cha’s article at an [upcoming] editorial board meeting in April.” (Italics added.)
In May 2007, several months after DeCherney made the charge of plagiarism, DeCherney determined “this was really a case of duplicate publication,” not plagiarism. The May 2007 determination by DeCherney reflects that his earlier accusation of plagiarism was far short of a conclusive determination Cha was “guilty” of plagiarism. However, the pertinent inquiry for our purposes is whether Flamm’s assertion in the March 2007 op-ed piece that Cha already had been “found guilty” of plagiarism was substantially true.
Moreover, Flamm’s own declaration in support of the special motion to strike acknowledged DeCherney was not the final arbiter of the charge of plagiarism, so that DeCherney’s accusation of plagiarism was not tantamount to a finding Cha was guilty of plagiarism. To reiterate, Flamm’s declaration stated, “[b]y the use of the phrase ‘may be,’ this statement communicated only that there was a possibility that, sometime in the future, [Cha] would be conclusively found to have plagiarized [Dr. Kim’s] study.... My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.” (Italics added.)
On this record, Cha made a sufficient prima facie showing Flamm’s assertion in the 2007 article that Cha already had been found guilty of plagiarism was not substantially true.
The majority relies on Conroy v. Spitzer (1999) 70 Cal.App.4th 1446 (Conroy), for the proposition that the offending statement by Flamm, i.e., Cha had been found guilty of plagiarism, was “substantially true” in that DeCherney had determined Cha had plagiarized the 2005 article. Conroy is a thin reed upon which the majority attempts to lean. In Conroy, a member of the state Assembly brought a defamation action against a rival who publicly discussed during a political campaign the Assembly’s investigation and reprimand of plaintiff for sexual harassment. In Conroy, the plaintiff had been investigated and reprimanded by the Assembly for engaging in conduct that violated the Assembly’s sexual harassment policy. (Id., at p. 1449.) Therefore, the defendant’s statement in Conroy that plaintiff had been found guilty of sexual harassment was substantially true.
Here, however, Cha was accused by DeCherney of plagiarism but there was never a finding to that effect by the editorial board or by any other authorized body and DeCherney ultimately withdrew his accusation of plagiarism. Therefore, Conroy does not support the majority’s proposition that Flamm’s statement Cha had been found guilty of plagiarism was substantially true. The majority has conflated the accusation of plagiarism by DeCherney with a guilty finding. However, the fact that DeCherney accused Cha of plagiarism does not make substantially true the statement by Flamm that Cha had been “found guilty” of plagiarism.”
The majority relies on the somewhat glib statement in Conroy that “ ‘[e]ven by the late 20th century not everyone has attended law school....’ ” (Maj. opn., ante, at p. 11, citing Conroy, supra, 70 Cal.App.4th at p. 1453.) However, irrespective of whether an author is a lawyer or a layperson, the author should appreciate the difference between a mere accusation and a guilty finding. That distinction is well within the colloquial vernacular.
See also Murray v. Bailey (N.D. Cal. 1985) 613 F.Supp. 1276, in which a former assistant district attorney sued F. Lee Bailey for slander. The court denied summary judgment, allowing plaintiff to proceed with a cause of action for slander based on defendant’s statement that plaintiff had been convicted of drunk driving. The court explained: “On November 8, 1982, while appearing on two San Francisco television stations (KRON-TV and KGO-TV) in promotion of his book, Bailey accused Murray of having been convicted of drunk driving. Bailey once again asserts that statements made on television are covered by the privilege afforded to fair and true reports of judicial proceedings. Under the standard reviewed directly above, this argument is unconvincing. The television statements, unlike the statements contained in the book, are of a different complexion than the actual truth, because the statements made on television were not set in context. The viewer, unlike the reader, could not be expected to understand that the car had merely lurched forward. Thus, there is a substantial difference between the television comments and the truth, between a conviction of drunk driving and being arrested and subsequently diverted for being drunk in an automobile that lurched forward four feet.” (Id., at p. 1284)
3. Cha made a sufficient showing Flamm acted with actual malice.
a. Cha’s status as a limited public figure required Cha to show by clear and convincing evidence Flamm made the defamatory statement with actual malice.
“In order to prevail on a libel action, public figures must prove, by clear and convincing evidence, that the libelous statement was made with actual malice – with knowledge that it was false or with reckless disregard for the truth. (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253.) There are two types of public figures: ‘The first is the “all purpose” public figure who has “achieve[ed] such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” The second category is that of the “limited purpose” or “vortex” public figure, an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” ’ (Ibid.) Thus, one who undertakes a voluntary act through which he seeks to influence the resolution of the public issues involved is a public figure. (Id., at pp. 254-255.) The limited purpose public figure ‘loses certain protection for his reputation only to the extent that the allegedly defamatory communication relates to his role in a public controversy.’ (Id., at p. 254.)” (Sipple, supra, 71 Cal.App.4th at p. 247.)
Generally, “authors are considered to have ‘participated sufficiently in public controversies or... otherwise involved themselves in matters of public concern as to be public figures....’ ” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1289.)
On the record presented, Cha was a limited purpose public figure. By authoring the 2001 prayer study, Cha injected himself into the age-old debate of faith versus science. With the publication of the prayer study, Cha became a public figure with regard to said study and all events and statements relating to it. The subsequent plagiarism controversy reflected not only on Cha’s professional integrity with respect to the 2005 article, but also on the trustworthiness and scientific methodology of the prayer study. Given these circumstances, Cha had the elevated burden of making a prima facie showing he could establish, by clear and convincing evidence, Flamm made the allegedly defamatory statement with actual malice. As explained below, Cha met his burden.
b. Cha made a sufficient showing of actual malice.
Actual malice requires the plaintiff to show the defendant made the defamatory statement with knowledge it was false or with reckless disregard for the truth. (Sipple, supra, 71 Cal.App.4th at p. 247.) Ironically, paragraphs 18 and 19 of Flamm’s moving declaration enabled Cha to make the requisite showing.
To reiterate, Flamm’s supporting declaration stated in pertinent part: “18. I stated in my op-ed article that [Cha] had been ‘charged with plagiarism.’ This communicated only that allegations of plagiarism had been made against [Cha] and that the matter was under investigation. [¶] 19. I further stated in my op-ed article that ‘This may be the first time in history that all three authors of a randomized, controlled study have been found guilty of fraud, deception, and/or plagiarism.’ By the use of the phrase ‘may be,’ this statement communicated only that there was a possibility that, sometime in the future, [Cha] would be conclusively found to have plagiarized [Dr. Kim’s] study..., published in the January 2004 issue of the korean journal of obstetrics and gynaecology. My statement did not communicate – and was not intended to communicate – that [Cha] had already been found guilty of plagiarism.” (Italics added.)
Although Flamm asserted he did not intend to communicate Cha had already been found guilty of plagiarism, the words of his 2007 article speak for themselves. Moreover, Flamm’s denial of any intent to communicate Cha already had been found guilty of plagiarism tends to show Flamm knew all along that Cha had not been found guilty of plagiarism. Thus, the record contains clear and convincing evidence from which a trier of fact could conclude that Flamm made the offending statement, i.e., that Cha had been found guilty of plagiarism, with knowledge that it was false or with reckless disregard for the truth.
Moreover, Flamm admittedly knew the difference between an accusation and a determination of guilt by the appropriate authority. With respect to Wirth, one of the co-authors of the 2001 prayer study, Flamm stated: “What if the grand jury was wrong? What if they indicted the wrong man? I go to the press and say the Daniel Wirth that co-authored the miracle study is a criminal; he’s a fraud, then he goes to trial and they find him innocent.... So I said I better make sure that this Daniel Wirth was indicted and guilty before I go to the press.” (Italics added.) However, Flamm did not exercise the same restraint when he wrote Cha had “been found guilty of fraud, deception and/or plagiarism.”
In holding Cha failed to make a sufficient showing of actual malice, the majority relies on this court’s decision in Robertson v. Rodriguez (1995) 36 Cal.App.4th 347. There, the plaintiff paid a $1,000 civil compromise for running an illegal business in violation of city zoning laws. We held, “because a fine may be construed as a civil penalty, [plaintiff] failed to make a prima facie showing [defendant] acted with actual malice in stating [plaintiff] had been fined.” (Id., at p. 360.)
Robertson is easily distinguished. Here, Cha made a prima facie showing Flamm acted with actual malice in stating Cha had been found guilty of plagiarism – at most, Cha had been accused by DeCherney of plagiarism, and Flamm was cognizant of the distinction between an accusation and a guilty finding.
In sum, given Cha’s prima facie showing the offending statement was false and was made with actual malice, the special motion to strike should have been denied.
I express no opinion as to the ultimate merits of Cha’s lawsuit. The sole issue before this court is whether Cha made a sufficient prima facie showing to require denial of Flamm’s special motion to strike.