Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CV 405616
Haerle, Acting P.J.
I. INTRODUCTION
An April 2008 newspaper article published in the Lake County Record-Bee (the Record-Bee) recounted the tribulations of Eric Patrick, a prominent Lake County resident who had recently learned that he was “misdiagnosed” with Lou Gehrig’s disease. Dr. Camille Keene, the Lake County neurologist with whom Patrick consulted before he obtained tests that proved he did not have the disease, brought this libel action against Media News Group, Inc., the Record-Bee publisher Gary Dickson, editor Richard Kennedy, and writer/reporter Elizabeth Wilson (collectively defendants or respondents).
Media News Group, Inc. was erroneously named as the owner of the Record-Bee. The Record-Bee is owned by Lake Publishing Co., Inc.
The superior court granted defendants’ motion for judgment on the pleadings and to strike Keene’s complaint pursuant to section 425.16 of the Code of Civil Procedure (section 425.16), the anti-SLAPP statute. The court also awarded defendants substantial attorney fees.
On appeal, Keene does not dispute that section 425.16 applies to her complaint, but contends instead that she carried her burden under that statute of proving she would likely succeed on the merits of her libel claim. In a second appeal, which we consolidate with the first, Keene contends the trial court abused its discretion by making an excessive attorney fees award. We will affirm the judgment and the post-judgment attorney fees order.
II. STATEMENT OF FACTS
A. Eric Patrick’s Illness
Eric Patrick, a resident of the small city of Cobb, is well known in Lake County. He hosted a popular weekday afternoon radio show, was a play-by-play announcer for local high school football games and performed in community theatre. Patrick also devoted time to a community organization called RAKE (Random Acts of Kindness and Encouragement) that raises money for people in need.
In late 2007, Patrick began to experience pain in his jaw and difficulty speaking, and filed a workers’ compensation claim which led to a referral to Dr. Camille Keene, a Lakeport neurologist. Patrick saw Keene three times in early 2008. During the first appointment, Keene examined Patrick and then told him and his wife Laura that an MRI and other tests would need to be done but it appeared that Patrick had Amyotrophic Lateral Sclerosis, which is commonly referred to as ALS or Lou Gehrig’s disease.
After that first appointment with Keene, Eric Patrick called several friends and family members and told them that he had just been told by a doctor that he had ALS. Laura Patrick went to work where she shared the news with John and Colleen Lindstrom. The Lindstroms owned the golf club where Laura worked and were also the founders of RAKE. Laura told them that a doctor thought Eric had ALS.
Eric Patrick obtained an MRI and then returned to Keene’s office for another test called an electromyography (EMG). The EMG could not be performed during that visit because his blood pressure was too high. The test was performed during Patrick’s third appointment, at the conclusion of which Keene told Patrick that the test results were fairly normal which was a good sign. She then referred Patrick to the ALS Clinic at the University of California at San Francisco (UCSF).
Meanwhile the RAKE organization began planning a fundraising event for the Patricks, which was publicized with letters posted at local businesses and mailed to other businesses and individuals. One version of the letter said that Eric Patrick “appears to have Lou Gehrig’s Disease (ALS)” while another reported that he “has Lou Gehrig’s Disease.” The golf club and other Cobb merchants also raised money for Patrick by selling shamrocks printed with the message “Patrick’s Irish Blessing.” When patrons of the club asked the Lindstroms what the shamrocks were for, they explained that Patrick had been told that it appeared he had ALS.
Eric Patrick’s illness was also reported in the local press. The Lake County News published an article on March 11, 2008, entitled “Big Lake County Voice Stricken with ALS,” which reported that “[a] local neurologist has diagnosed the Lake County radio personality Eric Patrick with ALS.” After the RAKE fundraiser, which was held on March 16, the Lake County News published another article which reported an “overwhelming turnout” for “recently diagnosed ALS sufferer Eric Patrick.”
The Record-Bee first reported about Eric Patrick’s illness in a March 11, 2008, article titled “ ‘Random Acts’ to ease pain of Lou Gehrig’s,” which discussed Patrick’s “recent diagnosis” and the upcoming RAKE fundraiser. A March 18, 2008, Record-Bee article reported that the RAKE fundraiser “brought in $46,000 for long-time Lake County resident and disc jockey Eric Patrick, who was recently diagnosed with Lou Gehrig’s disease.” The March 18 Record-Bee article updated readers about Patrick’s situation as follows: “Laura Patrick said the funds will help their family greatly. ‘It’s just going to be unbelievable. We’re just starting to go to UCSF (medical center),’ Patrick said. She said it is still early on in Eric’s diagnosis. [¶] ‘We’ve been to a neurologist in Lakeport, and we’re going to start seeking treatment at UCSF... he’s not working, so it will help pay for whatever costs we incur that the insurance doesn’t cover,’ Patrick said.”
Meanwhile, Eric Patrick followed up on Keene’s referral to the ALS clinic at UCSF. At his first appointment, Patrick was told that he might have Dystonia and not ALS and that an additional test was required. During a second appointment in April 2008, an EMG was performed after which Patrick was diagnosed with Dystonia. The treating physician told Patrick that, without the results of the EMG, he might have concluded that Patrick had ALS.
B. The April 15, 2008, Record-Bee Article
On April 15, 2008, the Record-Bee printed a third article about Patrick (the April 15 article), the title of which was “Getting his life back... Misdiagnosed man breathes huge sigh of relief.” The story was accompanied by a picture of Eric Patrick underneath which appeared the following text: “Eric Patrick, 46, a well-known disc jockey, was misdiagnosed with Lou Gehrig’s disease last fall. Instead, Patrick has Dystonia, which has symptoms similar to ALS but doesn’t end in death. The symptoms usually subside.”
The body of the April 15 article discussed the recent events in Patrick’s life pertaining to his medical condition, including his development of symptoms, his inability to work, his visit to Keene, his reaction to the ALS diagnosis, the RAKE fundraiser, and the new diagnosis from UCSF that Patrick had Dystonia and not ALS.
Keene’s name was mentioned once in the April 15 article, in a paragraph that described Eric Patrick’s first appointment with her as follows: “Then he visited Dr. Camille Keene, a Lakeport neurologist. [¶] ‘After she examined me, she said it looks like a fasticulation of the muscle, which is a twitch... She looked at Laura and me and said, ‘we have some MRI’s to do, but it looks like you have ALS,’ Patrick said.”
The April 15 article also contained the following summary of Patrick’s visit to UCSF Medical Center: “Last Friday, Patrick went to movement specialist Dr. Graham Glass at UCSF Medical Center for an electromyography (EMG) test and to hear what the ALS plan would be. [¶] The long, electrode needle inserted through his chin and tongue about seven times, and then into muscles from his toes to his shoulders, determined he did not have ALS. [¶] ‘The rest of the body was OK. That’s when the doctor looked at me and said, “I have good news for you. If these tests weren’t what they show here, I would tell you that you have ALS. But the rest of the body looks normal—we’re going to rule out ALS.” ’ ”
The April 15 article concluded by describing Patrick’s reaction to news that he did not have ALS and his plans to use the money from the RAKE fundraiser to go to the Mayo Clinic in Arizona for additional treatment and “ ‘just to make sure’ ” that he did not have ALS.
Pursuant to an April 18, 2008, letter, Keene’s attorney requested that the Record-Bee correct and retract statements in the April 15 article that Patrick was “misdiagnosed” and received a “misdiagnosis.” Counsel maintained these statements were false and defamatory, and that the quotation from Patrick about what Keene told him about his condition was not accurate. Counsel for the Record-Bee responded to Keene’s attorney that the challenged statements were protected opinion or substantially true and that the paper would not publish a correction or retraction. However, the Record-Bee did invite Keene to present her views to its readers via a guest commentary or letter to the editor.
C. The Present Action
On May 27, 2008, Keene filed her complaint for damages and injunctive relief, pursuant to which she alleged a single cause of action for libel based on the following five statements that appeared in the April 15 article:
(1) “Eric Patrick, 46, a well-known disc jockey, was misdiagnosed with Lou Gehrig’s disease last fall”;
(2) “Misdiagnosed man breathes huge sigh of relief”;
(3) “But instead the doctors at UC San Francisco Medical Center handed Patrick the good news: he had been misdiagnosed”;
(4) “Following on the heels of his father’s death last May, Patrick and his family had already been through a tough time by the time the misdiagnosis occurred in November”; and
(5) “ ‘She looked at Laura and me and said, “we have some MRI’s to do, but it looks like you have ALS.” ’ ”
Keene alleged these statements were false because she never misdiagnosed Patrick, and libelous because they injured her personally and professionally, and that defendants were negligent for publishing them both in print and on the internet.
Defendants filed a motion for judgment on the pleadings and to strike Keene’s complaint under section 425.16, contending the April 15 article was protected speech concerning a public issue. The motions were heard and granted on October 24, 2008, by the Honorable Michael Byrne. The court filed its statement of decision November 12, 2008.
The trial court found that section 425.16 applied to the complaint because defendants’ activities were acts in furtherance of the right of free speech in connection with a public issue. The April 15 article reported on a “public issue or an issue of public interest” within the meaning of section 425.16, subdivision (b) for two reasons, the court found. First, Eric Patrick was a well known member of a small community and his illness was the subject of considerable publicity and discussion. Second, in her complaint, Keene alleged that the article pertained to her competence as a physician and the public has an interest in having competent physicians.
The court also found that Keene could not carry her burden, under section 425.16, of establishing a probability she would prevail on the merits of her libel claim for the following reasons: (1) the April 15 article was substantially true, (2) it did not convey a “defamatory meaning,” and (3) Keene failed to plead or produce evidence of actual malice.
The court also granted defendants’ motion to strike Keene’s complaint, finding, among other things, that she failed to allege actual malice, an essential element of her claim, and that she did not ever allege what she claimed she actually said to Patrick. Finally, the court found that defendants were entitled to recover attorney fees and costs as the prevailing party on a special motion to strike.
Keene filed a notice of appeal from the judgment on December 19, 2008. Thereafter, defendants filed their motion for an award of attorney fees and costs. On April 3, 2008, the superior court filed an order granting the fee motion and awarding defendants $107,524.03.
III. THE MOTION TO STRIKE
A. Standard of Review and Issues Presented
Section 425.16, subdivision (b)(1), states: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution 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.”
Ruling on a section 425.16 motion is a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)29 Cal.4th 53, 67.)
In this case, Keene does not dispute that her libel claim arises from acts in furtherance of respondents’ free speech rights. Therefore, we limit our analysis to whether Keene met her burden of establishing a probability of prevailing on her claim, an issue subject to independent review on appeal. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 163-164.)
“ ‘In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must “ ‘state[] and substantiate[] 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.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]’ [Citations.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.)
B. Keene Did Not Establish a Probability of Prevailing on Her Claim
Libel is defined by statute as “a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.)
Libel is a species of the tort of defamation, “an invasion of the interest In reputation.” (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.) The elements of this tort are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and that (5) has a natural tendency to injure or that causes special damage.” (Ibid.)
With regard to element (5), “[a] statement that is defamatory without the need for explanatory matter such as an inducement, innuendo or other extrinsic fact, constitutes ‘a libel on its face.’ [Citation.] Defamatory language that is not libelous on its face is not actionable unless the plaintiff proves special damages as a proximate result of the libel. [Citation.]” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 700.)
In the present case, the trial court found that Keene failed to make a prima facie showing of facts to sustain a favorable libel judgment because there was insufficient evidence that any of the targeted five statements from the April 15 article were false or defamatory. We will independently consider these two essential elements of a libel claim.
1. Falsity
“‘There can be no recovery for defamation without a falsehood.’ [Citation.]” (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27.) “‘In all cases of alleged defamation,... the truth of the offensive statements or communication is a complete defense against civil liability regardless of bad faith or malicious purpose.’ [Citations.]” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180.) Furthermore, “it is not the literal truth or falsity of each word or detail used in a statement which determines whether or not it is defamatory; rather, the determinative question is whether the ‘gist or sting’ of the statement is true or false, benign or defamatory in substance. [Citations.]” (Id. at pp. 1181-1182.) In other words, the question is whether the imputation of the remark is substantially true. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 646-647 (Smith).)
“The burden of pleading and proving truth is generally on the defendant. [Citation.] However, in an action initiated by a private person on a matter of public concern, the First Amendment requires that the plaintiff bear the burden of proving falsity. [Citations.]” (Smith, supra, 72 Cal.App.4th at p. 646, fn. 5; see also Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 375 [“The First Amendment trumps the common law presumption of falsity in defamation cases involving private-figure plaintiffs when the allegedly defamatory statements pertain to a matter of public interest. [Citation.]”].)
On appeal, Keene does not challenge the trial court’s finding that the April 15 article pertains to a matter of public interest. Therefore, the burden was on Keene to make a prima facie case that the challenged statements were substantially false. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 347.) She was required to present “evidence that the statements were in fact substantially false, i.e., diverged from the true facts in and to such manner and degree as to produce a more damaging effect on the mind of the reader than would the truth.” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021 (Vogel).)
In her complaint, Keene alleged that “the statements listed in paragraph 10 above are false because evidence will show that Dr. Keene did not ‘misdiagnose,’ nor ever issue a ‘misdiagnosis’ of Eric Patrick, because at no point in her assessment of him did she arrive at a final, incorrect determination of his medical condition.” This allegation highlights two serious flaws in Keene’s theory of liability in this case.
First, even if we accept the complaint’s allegation that Keene did not “arrive at” a final, incorrect determination of Patrick’s medical condition in her own mind, that would not mean she did not make statements which were fairly characterized in the article as a misdiagnosis. Second, Keene cannot dictate the definition of “misdiagnosis” simply by alleging what the term means to her, i.e., a “final, incorrect determination of [Patrick’s] medical condition.” In order to assess whether Keene’s statements to Patrick were accurately characterized in the April 15 article as a “misdiagnosis,” we define that term in the context in which it was used and likely understood by the typical reader of that article. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261 (Baker); Monterey Plaza Hotel v. Hotel Employees, & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064.)
Therefore, as we turn to the evidence in the record before us, we first define the term “misdiagnosis” in the context in which it was used and understood and will then use that definition to assess whether Keene has carried her burden of producing evidence that the challenged statements were substantially false.
Neither party produced any evidence as to how a lay reader actually interpreted the term misdiagnosis. Therefore, we look to the April 15 article itself to provide the context for properly defining this term. “Since ‘[a] word is not a crystal, transparent and unchanged, [but] is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used[,]’ the facts surrounding the publication must also be carefully considered. [Citation.]” (Baker, supra, 42 Cal.3d at p. 261.) “This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. [Citation.]” (Ibid.)
As Keene concedes, the only statement in the April 15 article that ties Keene to the so-called misdiagnosis is the fifth statement challenged by her complaint, i.e., Patrick’s recollection that, after Keene examined him, she said “we have some MRI’s to do, but it looks like you have ALS.” Thus, the substance of this statement provides the context for defining the term misdiagnosis as it was used elsewhere in the April 15 article. This statement unequivocally conveys to the reader that Keene’s assessment was preliminary by reporting that Keene told Patrick that his symptoms looked like ALS but that additional tests needed to be done. We find not a single detail in the April 15 article which contradicted or was in any way inconsistent with the message that Keene’s assessment of Patrick’s medical condition was preliminary.
On appeal, Keene maintains that she could not have misdiagnosed Patrick because she never gave him a diagnosis, a term which she defines by reference to the declaration she filed in the lower court. There Keene stated, among other things, that “[a] diagnosis cannot be made solely on the basis of symptoms that a patient reports that he or she is having and a physical examination alone. The work-up and evaluation of ALS is quite extensive and typically extends over a period of several weeks. Furthermore, a diagnosis of ALS cannot be assigned unless the patient definitively and absolutely meets all clinical criteria.”
This and other statements reflecting Keene’s opinion regarding the proper definition of the word “diagnosis,” are not probative. In her declaration Keene claimed a certain expertise in the medical profession which constitutes an inadvertent concession that her opinion does not reflect the views of a typical lay reader of the April 15 article. More important, Keene completely ignores the context in which the term was used in the April 15 article. Our task is not to isolate and then define a word that appeared in the challenged statements; indeed, we are precluded by law from doing that. “ ‘ “[T]he publication in question must be considered in its entirety; ‘[i]t may not be divided into segments and each portion treated as a separate unit.’ ” ’ ” (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees, supra, 69 Cal.App.4th at p. 1064.)
Keene’s declaration also contains the following passage:
“The term diagnosis is defined as follows:
“1. The term denoting the name of the disease a person has or is believed to have.
“2. The use of scientific and skillful methods to establish the cause in nature of a sick persons [sic] disease. This is done by evaluating the history of the disease process; the signs and symptoms present; laboratory data; special tests such as x-ray pictures and electrocardiograms. The value of establishing a diagnosis is to provide a logical basis for treatment and prognosis. [¶] Taber’s Cyclopedia Medical Dictionary (14th Edition, Publisher, F.A. Davis Company).”
There are several problems with this proffered definition. First, although Keene formatted her declaration to make this definition look official, she neither quoted from nor produced evidence of her primary source, which appears to be a 1981 edition of Taber’s Cyclopedia Medical Dictionary. Second, Keene’s spin on what she may or may not have read in a medical dictionary carries little evidentiary weight, particularly under these circumstances where there is no evidence that the typical reader of a Record-Bee article would be familiar with such a definition. Third, even Keene concedes that the term diagnosis can mean “the name of the disease a person has or is believed to have” (emphasis added) and, therefore, does not always denote a final determination of a medical condition.
We conclude that the term “misdiagnosis” was used in the April 15 article to refer to the preliminary assessment that Patrick appeared to have ALS but that additional tests were needed. The gist of the statements referencing Patrick’s misdiagnosis was that Keene told Patrick that his symptoms and her examination of him suggested that he had a disease that he did not in fact have. Keene’s burden, therefore, was to produce evidence that she did not convey this message to Patrick.
Keene contends that statements in the April 15 article that Patrick was misdiagnosed in “November” or in the “fall” are patently false because undisputed evidence establishes that Keene’s first appointment with Eric Patrick did not occur until January 2008. However, this chronological discrepancy has no bearing on whether the gist of the challenged statements were substantially true. (See Smith, supra,72 Cal.App.4th at pp. 646-647.)
Keene also relies on her declaration, wherein she repeatedly denied that she misdiagnosed Patrick. But those denials were qualified by her own narrow, technical definition of misdiagnosis. In that declaration, Keene also stated that “[t]he attributed quotation, ‘we have some MRI’s to do, but it looks like you have ALS’ is inaccurate.” However, this “simple negation of the challenged statement fails to fairly meet its substance.” (Vogel, supra, 127 Cal.App.4th at p. 1024, fn. 7.) The question is not whether Keene uttered these exact words but rather whether the substance of her comments to Patrick was that it appeared to her at that stage in the testing process that Patrick had ALS.
Keene intimates that her express denial that she misdiagnosed Patrick is sufficient evidence to carry her burden of proving falsity under the unique circumstances of this case because patient confidentiality laws preclude her from disclosing “exactly” what she said to Patrick. There are several problems with this argument. First, as we have already explained, the issue is not “exactly” what was said, but rather the substance of that conversation. Second, Keene fails to cite any authority which precludes her from disclosing the substance of her conversation with Patrick under these circumstances. Third, Keene’s claim that her hands are tied seems inconsistent with the fact that she has expressly asserted that she did not make a final definitive diagnosis that Patrick had ALS. If free to make that representation, we fail to see why Keene could not also have denied that she made statements to Patrick to the effect that it appeared he had ALS, although additional tests needed to be done. Keene has never denied that she conveyed that message to Patrick and his wife.
Furthermore, respondents produced probative evidence that Keene did convey to Patrick the notion that it looked as if he had ALS. In his declaration, Eric Patrick stated that, after Keene examined him during his first appointment, Keene told him she was going to order an MRI and other tests. Patrick then asked what was wrong with him and “Dr. Keene responded that, at that point, it looked like the early stages of ALS.” Patrick also provided a copy of the MRI test results which was given to him by Dr. Keene’s office. That report stated that the findings “may represent very early changes of amyotrophic lateral sclerosis. Clinical correlation is advised.” In his declaration, Patrick also stated that, at the conclusion of his third appointment, “Dr. Keene told my wife and I that the results of the EMG looked fairly normal and were a good sign. However, Dr. Keene did not change her earlier assessment that it looked like I had ALS. Instead, Dr. Keene referred me to the ALS clinic at the University of California, at San Francisco.” ~(AA1 76)~ In her declaration, Laura Patrick confirmed her husband’s recollection of the meetings with Keene, stating that after Keene examined Patrick, she “said that although she needed to do some additional tests, she thought Eric had ALS.” ~(AA1 83)~
After conducting an independent review of this record, we find that Keene failed to carry her burden of making a prima facie case that the challenged statements in the April 15 article were substantially false. Furthermore, respondents’ evidence established that the gist or sting of the challenged statements was substantially true—that Keene did make statements to Patrick to the effect that it appeared that he had a disease which he later learned he did not have.
2. Defamatory
Even if Keene had produced evidence that the challenged statements were substantially false, she was also required to make a showing that the allegedly offensive statements were defamatory. “Where the words or other matters which are the subject of a defamation action are of ambiguous meaning, or innocent on their face and defamatory only in the light of extrinsic circumstances, the plaintiff must plead and prove that as used, the words had a particular meaning, or ‘innuendo,’ which makes them defamatory. [Citations.] Where the language at issue is ambiguous, the plaintiff must also allege the extrinsic circumstances which show the third person reasonably understood it in its derogatory sense.... [Citations.]” (Smith, supra, 72 Cal.App.4th at pp. 645-646.)
“The question whether a statement is reasonably susceptible to a defamatory interpretation is a question of law for the trial court. Only once the court has determined that a statement is reasonably susceptible to such a defamatory interpretation does it become a question for the trier of fact whether or not it was so understood. [Citations.]” (Smith, supra, 72 Cal.App.4th at p. 647.) In making this determination, the challenged statement is viewed from the perspective of a “lay reader.” (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803.) The question is whether a reasonable, “average” reader would interpret the statement as defamatory. (Alszeh v. HBO (1995) 67 Cal.App.4th 1456, 1461.)
Keene contends the challenged statements are defamatory when read in context because “[a] lay reader would conclude from the overall tenor of this April 15, 2008 article, which appeared in both written form and on the web, that the misdiagnosis was solely ascribable to Dr. Keene” and that the “clear inference is that she is unfit to perform the duties of her neurology specialty.” We disagree.
When we read the April 15 article from the perspective of a lay reader, it is not reasonably susceptible of a meaning that defamed Keene. Although a careful reader would likely understand that the term misdiagnosis was used in the challenged statements to refer to Keene’s initial examination, he or she would also comprehend that Keene did not give Patrick a final definitive diagnosis because, as discussed above, the one time Keene’s name was mentioned in the April 15 article was when Patrick recounted that she told him that it looked as if he had ALS but that additional tests needed to be done.
We find nothing in the substance of the April 15 article that could be reasonably construed by an average reader as questioning Keene’s medical skills or abilities to perform her job. To the contrary, the clear import of the article was that it really did appear as though Patrick had the fatal disease and the discovery that he did not have ALS was remarkable at least in part because it was unexpected. This message was conveyed in several ways. For example, the article made the point that Patrick’s symptoms were in fact consistent with ALS. It also conveyed the inherent difficulty of diagnosing this particular disease by pointing out that, even after the additional tests led to a diagnosis of Dystonia, Patrick intended to use his money from the RAKE fundraiser to go to the Mayo clinic for additional testing, just to make sure.
Another important passage in the article that effectively conveyed the message that Keene’s initial assessment or “misdiagnosis” was reasonable under the circumstances is the following paragraph in which Patrick described what UCSF specialist Dr. Graham Glass told him after obtaining the results of the additional tests: “ ‘The rest of the body was OK. That’s when the doctor looked at me and said, ‘I have good news for you. If these tests weren’t what they show here, I would tell you that you have ALS. But the rest of the body looks normal—we’re going to rule out ALS.’ ”
We note for the record that this particular passage was deleted from the version of the April 15 article that Keene attached to and incorporated into her complaint. This fact concerns us because Keene’s redaction was not disclosed in her pleading or exhibit and because this particular passage is obviously very relevant to the question whether the article was defamatory to Keene.
We affirm the lower court’s conclusion that the challenged statements in the April 15 article are not reasonably susceptible to a defamatory interpretation. The reasonable interpretation of statements referring to Keene was that she made a preliminary diagnosis of Eric Patrick’s medical condition which was reasonable but ultimately and thankfully incorrect.
C. Actual Malice and Trade Libel
The statement of decision posits that even if Keene had made a prima facie case that the April 15 article was false and defamatory, the motion to strike would be granted on the alternative ground that Keene’s cause of action was really a claim for trade libel which requires actual malice, something Keene did not allege or attempt to establish as part of her prima facie showing.
In light of our prior findings, we need not address this ruling to sustain the judgment. Our conclusions above establish that Keene failed to carry her burden of producing evidence of a prima facie case of libel and thus did not establish a likelihood that she would succeed on the merits of her case against respondents. Nevertheless, we briefly consider the issue of trade libel because the parties appear to harbor misconceptions about the role of that doctrine in the present case.
The statement of decision was drafted by respondents’ counsel and the language in that statement that troubles us was not compelled by anything the trial court said at the hearing on the motion to strike.
1. Guiding Principles
Trade libel is an injurious falsehood that interferes with business. (Guess, Inc. v. Superior Court (1986) 176 Cal.App.3d 473, 479.) Unlike “classic defamation,” trade libel is “ ‘not directed at the plaintiff’s personal reputation, but rather at the goods a plaintiff sells or the character of his or her business, as such. [Citation.]’ [Citation.]” (Ibid.) Thus, despite the fact that trade libel is “similar to defamation in that both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff, the two torts are distinct; that is, ‘trade libel’ is not true libel and is not actionable as defamation.” (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 549 (Polygram Records).)
An important consequence of the distinction between trade libel and defamation pertains to actual malice. Although actual malice is not an element of a traditional libel claim by a private figure plaintiff, trade libel does require proof of actual malice. (Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 1350 (Melaleuca).) “A statement is made with actual malice when the publisher either knows the statement is false or has some serious subjective doubt about the truth of the statement.” (Ibid.)
2. Analysis
The statement of decision states that, even if Keene had established that the April 15 article was false and defamatory, her claim was actually one for trade libel and she failed to make a prima facie case of trade libel because she did not plead or prove actual malice.
Our problem with this part of the statement of decision is that it implies that Keene’s only option was to attempt to prove trade libel because the challenged statements pertained to her professional services. However, we can conceive of circumstances under which a comment about a doctor’s misdiagnosis might support a claim for defamation, for example, if a doctor was falsely accused of misdiagnosing poison oak as a skin cancer because he or she was intoxicated during the examination.
The problem with Keene’s libel claim, aside from the fact that she failed to prove falsity, was not that the challenged statements pertained to her professional services, but rather that those statements were not susceptible to a defamatory meaning. An average reader of the April 15 article would not have interpreted the challenged statements as accusing Keene of personal dishonesty, lack of integrity or incompetence or, indeed, of any reprehensible personal characteristic. If the circumstances were different, and Keene had established that the April 15 article was both false and defamatory, the fact that the statements pertained to a professional misdiagnosis would not have precluded her from making a prima facie showing of defamation.
In other words, we reject the notion that a statement disparaging of a plaintiff’s professional services can never constitute defamation. On the other hand, we also firmly reject Keene’s lengthy and novel argument to this court that false statements about the quality or nature of a plaintiff’s professional services necessarily injure personal reputation and, therefore, constitute defamation rather than trade libel as a matter of law. In light of the circumstances surrounding this appeal, Keene’s problematic theory does not merit the attention she seeks from this court by making it the feature of her appellate briefs. We note however, that Keene apparently overlooks Polygram Records, supra, 170 Cal.App.3d at page 550, a case decided by a different panel of this court. The Polygram Records court acknowledged that “‘[i]t might be possible to imply some accusation of personal inefficiency or incompetence, at least, in nearly every imputation directed against a business or its product. The courts have gone to some lengths, however, in refusing to do so, particularly where the most that can be made out of the words is a charge of ignorance or negligence.’ [Citations.]” (Polygram Records, supra, 170 Cal.App.3d at p. 550.)
The Polygram Records court also recognized that there could be circumstances under which a disparaging remark pertaining to a plaintiff’s goods or services might support a claim for either or both trade libel and defamation. (Polygram Records, supra, 170 Cal.App.3d at p. 550.) However, a disparaging comment about a plaintiff’s product or service that does not “accuse plaintiff of dishonesty, lack of integrity or incompetence nor even imply any reprehensible personal characteristic” is not defamatory and thus cannot form the basis of a claim for defamation. (Ibid.) In that instance, the plaintiff’s remedy is limited to claim for trade libel. (Ibid.)
In the present case, our foregoing analysis confirms that the allegedly disparaging comments about Keene in the April 15 article did not accuse her of dishonesty, lack of integrity, or incompetence nor imply any reprehensible personal characteristic. Thus, she failed to carry her burden of establishing a likelihood of success on the merits of a claim for libel. Under these circumstances, the trial court did not err by considering whether Keene could have made the showing necessary to establish trade libel as an alternative basis for imposing liability on defendants.
To the extent Keene’s complaint could be construed as a claim for trade libel, i.e., commercial disparagement as opposed to personal defamation, she would have had to prove actual malice. (Melaleuca, supra, 66 Cal.App.4th at p. 1350.) Keene does not dispute this fact, but argues instead that the judgment should be reversed to allow her “to conduct the discovery which would disclose whether the ‘actual malice’ requirement of trade libel has any evidentiary foundation.” Keene fails to provide sound argument or authority to support this request which was rejected by the superior court for good reason.
As the statement of decision reflects, Keene failed to comply with section 425.16, subdivision (g), by filing a noticed motion in the superior court for discovery supported by a showing of good cause. Keene elected not to seek that discovery, notwithstanding the fact that defendants filed declarations which, the lower court found, established that they did not act with actual malice. “The failure to comply with the statute by making a timely and proper showing below makes [Keene’s] discovery request meritless. [Citations.]” (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.)
Keene failed to carry her burden of making a prima facie showing that the challenged statements were substantially false. Furthermore, those statements are not susceptible to a defamatory interpretation and they did not accuse or imply that Keene was unfit to perform her job. Finally, Keene failed to produce any evidence of actual malice. Therefore, whether her cause of action is construed as a claim for defamation or trade libel, Keene failed to establish a likelihood of success on the merits of her case.
IV. The Attorney Fees Order
As noted in our introduction, Keene’s second appeal is from the post-judgment attorney fees order pursuant to which the superior court awarded respondents $107,524.03 for their attorney fees and costs.
Keene does not dispute that respondents are entitled to “mandatory attorney fees” as the prevailing party on their section 425.16 motion to strike. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).) Nevertheless, Keene seeks a reversal and remand of the order on the grounds that (1) the superior court failed to adequately consider her objections to the fee request and (2) the fee award is excessive.
We review the attorney fees order under the abuse of discretion standard of review. “As our high court has repeatedly stated, ‘ “ ‘[t]he “experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and while his judgment is of course subject to review, it will not be disturbed unless the appellate court is convinced that it is clearly wrong”—meaning that it abused its discretion.’ ” ’ [Citations.]” (Children’s Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 777; see also Ketchum, supra, 24 Cal.4th at p. 1132.)
A. Background
Defendants sought to recover a total of $107,524.03, for their attorney fees and costs. This figure included $2,465.53 in costs, which were documented in and supported by a separate memorandum of costs that Keene did not oppose in the lower court. In addition, defendants sought $105,058.50 for attorney fees incurred in connection with the special motion to strike, for additional work litigating the attorney fees motion.
Defendants supported this fee request with declarations from counsel which summarized the work that was done and provided supporting documentation in the form of time records and summaries. The defendants also offered the declaration and supplemental declaration of James Chadwick, an attorney with experience defending media clients in cases similar to the present case. Chadwick offered the opinion that “the time spent in connection with this anti-SLAPP motion—198.65 hours, not counting the time necessary to prepare a statement of costs and this motion for attorneys fees—was reasonable.”
Keene opposed the attorney fees motion arguing, among other things, that the fee request was too high because the number of hours counsel claimed to have spent was excessive, the billing rates were too high for the actual work required, some charges were duplicative and others were unsubstantiated. Alternatively, Keene argued that the attorney fees award should be reduced to reflect the prevailing rate for legal work in the particular community where the action arose.
In support of her opposition to the fee request, Keene filed her own declaration and a declaration from her counsel both of which questioned the reasonableness of the fees incurred by defendants. Keene also filed declarations from attorney Robert Riggs, who opined that the fee request was excessive, and from attorney Angela Wright, who shared her views regarding reasonable rates for a Lake County attorney.
The attorney fee motion was heard by Judge Byrne on April 3, 2009. At the commencement of the hearing, the court indicated that it had reviewed the moving papers and “read the papers on all sides.” The court heard argument, engaged counsel in discussion about matters of concern and ultimately granted the motion.
In an order filed April 3, 2009, the court found, among other things, that the hourly rates of defendants’ attorneys and legal assistants were “reasonable and within the market rates for attorneys of like experience, skill and reputation,” that the time for which defendants sought compensation was also reasonable and well supported, and that all of the costs claimed in the cost memorandum were recoverable. The order directed Keene to pay $107,524.03, no later than 60 days from the date of notice of entry of the order.
A notice of entry of order was filed and served on April 21, 2009. According to Respondents’ Reply brief, Keene has not paid the fee award and did not post a bond in connection with the present appeal.
B. Analysis
Keene’s first argument is that the attorney fees order must be reversed because the “record shows the Court either failed to deliberate or only gave a cursory deliberation into plaintiff’s concerns” about the fee request.
The transcript of the hearing on the attorney fees motion reflects that the trial court expressly stated that it reviewed all of the pleadings and documentation relating to the motion, conducted oral argument and provided a more than adequate explanation for the conclusions it reached. Keene’s factual arguments to the contrary strain our notion of proper advocacy. Her legal claim that she was entitled to a more detailed response to her various objections is also unsound. (Ketchum, supra, 24 Cal.4th at p. 1140.)
In Ketchum, supra, our Supreme Court approved the lodestar method for calculating attorney fees awards under section 425.16 and remanded the case before it for a fee recalculation pursuant to that standard. However, the court also addressed and rejected the appellant’s complaint that the trial court “merely ‘rubber stamped’ the [attorney fee] request without an independent assessment.” (Ketchum, supra, 24 Cal.4th at p. 1140.) The record showed that the trial court had reviewed the extensive documentation pertaining to the fee request and had entertained extensive oral argument on the matter. Therefore, the Ketchum court concluded that there was “no reason to doubt that the superior court conducted an independent assessment of the evidence presented.” (Ibid.)
The Ketchum court also rejected appellant’s related complaint that the superior court erred by failing to provide a “reasoned explanation” for denying appellant’s objections to specific items in the fee request, finding that the court had no obligation to issue a statement of decision in connection with the fee award. (Ketchum, supra, 24 Cal.4th at p. 1140; see also Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1323 [“There is no requirement, however, that the trial court provide a statement of decision [Citation] or otherwise detail its fealty to the law, which we presume. (Evid. Code, § 664.)”].)
Keene’s second contention is that the attorney fee award is excessive. Her complaints, however, are patently unsound in light of our deferential standard of review. For example, Keene maintains that her expert was more qualified than the defendants’ to opine as to the number of hours reasonably expended on the motion strike. She also contends that this case was not that complicated and did not merit the time or attention of the experienced attorneys who represented defendants below. These hindsight arguments ring hollow, particularly in light of the aggressive litigation documented in the record before us. In any event, Keene’s disagreement with the trial court’s conclusions simply is not a valid ground for seeking reversal of the attorney fee order. The lower court that heard and ruled on the motion to strike in this case was in a better position than us to make these judgment calls.
Keene also challenges the lower court’s conclusion that the hourly rates charged by the defense attorneys, which ranged from $155 to $450 per hour, were reasonable under the circumstances. Citing Ketchum, supra, 24 Cal.4th at page 1135, Keene maintains that the superior court was required to calculate the fee award by using a prevailing hourly rate for lawyers who practice in Lake County.
As discussed above, Ketchum approved the use of the lodestar method for calculating a section 425.16 attorney fee award. (24 Cal.4th at p. 1136.) In describing that method, the court observed that it had previously “remarked that the reasonable value of attorney services is variously defined as the ‘ “hourly amount to which attorneys of like skill in the area would typically be entitled.” ’ [Citations.]” (Id. at p. 1133.) However, contrary to Keene’s contention on appeal, the Ketchum court did not hold that the trial court was required to calculate the fee award by using the prevailing hourly rate for comparable work in the specific city or county where the case arose. Indeed, it does not appear that that specific question was even raised in Ketchum.
Keene’s contention that the rate for calculating a fee award must always be the prevailing hourly rate for lawyers who practice in the county where the case arose is inconsistent with PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084. In that case, the Supreme Court affirmed an award of attorney fees to the prevailing party where the superior court based the award on “the number of hours expended by counsel multiplied by the prevailing market rate for comparable legal services in San Francisco, where counsel [wa]s located” notwithstanding that the case was tried in Los Angeles. (Id. at p. 1096.) The court expressly found that the superior court used a proper standard in calculating the fees. (Ibid.)
In the present case, the trial court’s conclusion that the hourly rates used to calculate the fee request were reasonable was supported by defense evidence that there are very few lawyers in Northern California with experience defending news entities sued for libel, none of whom practice in Lake County. Although Keene argued there were attorneys in the county who were qualified to handle the matter, the superior court judge, the same judge who heard and decided the motion to strike, was not persuaded by the attorney declarations that Keene submitted, both of which were premised on Keene’s unorthodox notion that her case was so simple and easy to defeat that no real expertise was required. As the trial court explained at the hearing on this matter, “I don’t’ have any difficulty with going outside the area. Lake County has a relatively small bar and this kind of a case is not going to come up very often.... [¶] I think counsel’s rates are reasonable considering the expertise that was brought in. I don’t find going... to the expert... from the outside is at all unreasonable.”
Keene’s contention that defendants should have hired Lake County attorneys is undercut by her own conduct in this case. The attorney who demanded a retraction from the Record-Bee on behalf of Keene practiced in Sacramento. Her present counsel, who also represented her in the court below, is located in Santa Rosa.
Finally, as Keene acknowledges, a prevailing defendant is also entitled to recover fees “ incurred in responding to an appeal of an order granting a special motion to strike or an order awarding attorney fees in connection with such motion.” (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21; see also Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.) However, Keene requests that, if this court affirms the judgment and attorney fee order, we remand this case to a Special Master with directions to limit respondents fees on appeal to $10,000. Keene provides neither argument nor authority to support of these requests.
“As the trier of fact, the trial court’s assessment of the reasonableness of counsel’s efforts in his or her courtroom on a motion to strike naturally informs that court’s conclusions regarding fees on appeal, which the trial court determines.” (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1327; see also Evans v. Unkowsupra, 38 Cal.App.4th at p. 1500.)
V. DISPOSITION
The judgment and the post-judgment attorney fee order are affirmed. Respondents shall recover their costs and attorney fees on appeal, the amount of which shall be determined by the trial court.
We concur: Lambden, J.Richman, J.