Opinion
A167015
02-29-2024
KIMI NORWAY, Plaintiff and Respondent, v. JONATHAN LEE, Defendant and Appellant.
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC22599199
Banke, Acting P. J.
This case arises from a wave of cyber bullying that occurred at Lowell High School when plaintiff and respondent Kimi Norway, and defendant and appellant Jonathan Lee, were students there. Norway eventually sued the San Francisco Unified School District for both facilitating and failing to stop the bullying, and sued Lee, another student referred to as C.K., and "Doe" defendants for engaging in and inflaming the bullying. As to Lee, Norway alleges causes of action for defamation and intentional infliction of emotional distress. Lee appeals from the partial denial of his "anti-SLAPP" (strategic lawsuit against public participation) motion. We affirm.
The challenged order addresses only Norway's defamation claim against Lee.
Much of this background summary is taken from Norway's initial complaint, at which Lee's anti-SLAPP motion was directed, rather than her amended complaint filed after Lee filed his notice of motion but before the court ruled on the motion, or her second amended complaint filed after the court's ruling.
In the fall of 2021, Norway was a senior at Lowell. She was a good student, involved in numerous school activities, and a student officer. As a student officer she was required to take a leadership class.
In October of that year, she attended a school dance and took photographs. She uploaded a number of the photos to a school Instagram account as part of her leadership class requirements. Unbeknownst to her (she had not been living in the area the prior year during the Covid-19 closure), one of the photos contained the image of a student accused of sexual assault.
Within hours, students posted disparaging comments about the accused student on the photo in which he was shown. One student sent a message to Norway stating the photo should be removed. Norway immediately did so, but also questioned whether the negative comments about the accused student were an example of bullying.
A week later, during a discussion in the leadership class about "recent allegations of sexual harassment and sexual assault at the school," several of the students, including C.K., "publicly and vocally accused [Norway] of enabling sexual abuse and minimizing the plight of sexual abuse victims." The teacher allowed the discussion to continue unchecked, resulting in more "defamatory" and "vitriolic" verbal attacks on Norway.
The following day, Norway was the subject of "myriad Instagram posts" accusing her of" 'victim blaming,'" " 'invalidating survivor's experiences,' " " 'defend[ing] sexual assaulters,'" engaging in" 'performance ass activism,'" and using" 'her power as [an] LSA Officer to defend abusers.' "[ Students branded her an" 'abuser,'" " 'sexual assaulter,'" " 'serial manipulator,'" and" 'literal abuser.'" Some called for her to be removed from her student office.
Students in the leadership class had "unfettered access to post on official school Instagram accounts" and continually updated the accounts, including updates about Norway's supposed support of sexual assaulters and harassers.
Among the Instagram posts that day was one by Lee, stating as follows:
"I'm going to start this off by thanking those who have been brave enough to share their experiences through their statements. They have all inspired me to come out and speak upon [sic] my own experiences. Similar to [another student's post, I'm not sure what 'category' my experience falls under. I've also been reluctant about sharing my experience as the wider majority of abusers have appeared to be male. Nonetheless, I have come to reason that there is no reason for male experiences with sexual assault, sexual harassment, abuse, manipulation, etc. not to be heard. To echo a message that others have spread through their statements, I know that there are many survivors out there and I hope that my speaking out against a manipulator/harasser/abuser inspires others to do the same. Unfortunately, our school systems are not equipped with administrators who make survivors feel comfortable enough to share our stories, leaving us with no choice but to speak out on social media.
We have deleted the specific reference to the student's account out of respect for the student's privacy.
"With that being said, here are some of the major incidents that occurred between myself and my mental and physical abuser, Kimi Norway:
"Kimi and I met in 8th grade, getting closer throughout the rest of 8th grade up until my sophomore year in high school. Although we never officially dated, we would do things that 'just friends' would not do. At the time, I didn't know any better, allowing her to take advantage of my body for her own pleasure. She would guilt me into letting her use my body, at times telling me that she was upset and that she needed comforting, and other times telling me that I should let her use my body because I had feelings for her. Even though I knew what she was doing was wrong, I couldn't say no to her because it felt like that was my only way of receiving validation from her. When I finally worked up the courage to tell my friends about how her actions made me feel, they told me that I was crazy and that I should have been happy that a girl was [sic] doing these things to me. Foolishly, I listened to what they had told me and continued to let her use my body for her own pleasure.
"She was also very manipulative, not allowing me to be myself, rather a version of myself that could please her. At the time, I would've done anything for her because of how I felt for her, and she knew that. She knew that she had the ability to get away with anything and that I would let things slide. After all, I was led to believe any excuse that she had made for herself. She knew that what she was doing was wrong, but she continued to do so because she seemed to enjoy seeing me in emotional pain. She knew that I was being vulnerable toward her, and despite that, she would force me to send her inappropriate pictures of myself, knowing that I was mentally unable to say no to her. When I had finally realized the severity of what she had done, I deleted the pictures that I had sent her. I remember her then confronting me about deleting the pictures, and when I told her I was uncomfortable with her having those pictures, she laughed at me, telling me that she had already screenshotted them and that there was nothing I could do to get her to delete them.
"She wouldn't allow me to have other female friends, telling me that if I truly liked her, I wouldn't feel the need to have other friends. During one of our last interactions, I remember her pulling me aside to talk during our lunch period. At the time, there was construction happening at my school, which meant that there were areas that had felt secluded enough for privacy. I remember her trying to take my phone out of my pocket, and continued even after I resisted, thinking that I was 'playing along.' When she finally tore the phone from out of my possession, she demanded for [sic] the password, threatening to spread lies about me hiding the 'truth' from her. Reluctantly, I gave her my password, giving her access to beyond personal information that I wasn't comfortable sharing with anyone. While searching through my phone, she came across a group chat that I was in for tutoring, containing two high school seniors and more importantly, another girl. She asked me why I was friends with another girl, telling me that my feelings for her must have been fake. Unable to control her anger, she lashed out at me, kicking my shins repeatedly, telling me that I deserved the beating/abuse because I was friends with other girls. She also seemed to enjoy hurting me, telling me that she knew her kicks hurt because she played soccer. After she was done taking all her anger out on me, she went to class, and instead of doing the same, I took myself to the nurse's office to clean up the cuts left on my shins. This was the last straw.
"I've been hesitant on opening up about my experience with Kimi because I knew that she was popular in the sense that she was on our class board and it seemed like she had a lot of friends who I didn't think were going to support me.
"I want to make this as clear as possible, STOP GIVING THE ABUSERS/MANIPULATORS/ASSAULTERS/HARASSERS EXCUSES. DO WHAT IS RIGHT.
"If there is anyone out there that needs someone to talk to, know that my door is open to anyone, and I mean anyone, who feels comfortable talking about their experience. Stay safe."
Norway vehemently denies Lee's accusations and characterization of their relationship, and claims he initiated all the sexual contact about which he purported to complain in his post, and likewise, on his own initiative sent her the pictures of his" 'sexual' body parts" about which he complained in the post. She believes he made the post in retaliation for her ending the relationship after the argument during the lunch hour Lee referred to in his post and disputes Lee's description of that interchange. According to Norway, Lee grabbed her as she was walking away, she tried to break his grip, and, failing to do so, she kicked him to get away. She also believes he made the post when he did to take advantage of the social media discourse on sexual assault and harassment that was particularly topical at the time, including on high school and college campuses. Norway asserts Lee "knew the internet [at the time] would blindly believe his side of the story."
Norway does not dispute that she and Lee became friends in the eighth grade and that they used to "kiss/make out," and that one occasion when her parents were not home, she removed her shirt. She claims she removed no other clothing, but Lee (without any request by her) removed all of his clothing.
Lee is equally adamant that he made no misstatements about their relationship and maintains he was expressing how he had felt as a middling teenager, who came to believe he was emotionally and sexually manipulated by Norway. In his declaration in support of his motion to strike, Lee states he "decided to share my experiences in the hopes that they might help someone else who had gone through something similar." He goes on to state, "the posting was related to things that happened to me when I was 15 years old. Everything that I wrote in my post is true and accurately reflects my factual recollections and my feelings. I spoke the truth. I did not accuse Kimi of committing sexual assault or any other crime. I only described accurately things that happened between us, and how I felt about those things. I wanted to share what happened and wanted to try and help others that might be in a similar situation."
The night Lee made the post, Norway's father texted Lee's mother and told her Lee had posted a defamatory Instagram. Lee took the post down the following morning.
However, C.K.'s post accusing Norway of being "an 'abuser,' 'serial manipulator,' [and a] 'defender of abusers,'" continued to be reshared "countless times." Other students "also repeated lies throughout Instagram, other social media, and face to face conversations" that Norway "had committed sexual assault." The student government's official account posted "a 'Statement Regarding Kimi Norway,' stating that 'the LSA 2022 board' 'reaffirm our support for survivors of sexual violence,'" and described Norway "as a 'perpetrator' of 'sexual assault,' 'condemned' her actions,' and stated the student government was 'doing everything in [their] power to remove her from leadership positions.'" By the end of that day, "more than twenty students had joined the cyberbullying campaign against [Norway], often by way of official school social media accounts."
The following day, school administrators ordered the media accounts "taken down 'due to legal concerns.'" "However, nearly immediately, new posts went up keeping nearly identical verbiage and defamatory allegations, but removing [Norway's] name," and it was "clear to all students" who the person "being targeted was." The senior prom committee posted a" 'Statement Regarding Kimi Norway'" similar to that posted by the student government, "clarify[ing] that we do not tolerate any forms of assault or harassment regardless of who the perpetrator is."
Norway did not attend school the next day. School administrators concluded "the bullying against [Norway] was not a safety concern," penalized her with an unexcused absence, and suspended her from "numerous extracurricular and classroom activities 'pending outcome of the investigation.'" She and her father were told a "Title IX" complaint had been filed against Norway but were not told what it was about. In his declaration in support of his motion to strike, Lee states he was called into the principal's office, was asked about his post, and then asked if he wanted to file a "formal complaint" against Norway. He said he did, and after making his complaint, had one follow up meeting with administrators.
For purposes of this appeal we need not chronicle in detail Norway's allegations that school administrators kept her in the dark about the Title IX investigation and took no action against the students who were engaged in the cyber bullying, and that administrators and teachers continued to treat her as though she was a sexual harasser and abuser.
A week after the cyber bullying commenced, Norway retained counsel, who served the students harassing and allegedly defaming her with cease-and-desist letters. At that point, school administrators told Norway she could resume her extracurricular activities. She nevertheless continued to suffer harassment and disparaging treatment, including at the hands of some teachers.
Norway's attorney, by letter, told Lee he should provide a retraction, send an apology, and pay Norway's attorney fees. He refused and states in his declaration in support of his motion he did so "[b]ecause everything in my Instagram post was true, I was not going to retract true statements and I was not going to offer an apology to Kimi given the true facts." His mother's attorney replied to Norway's attorney, accordingly, stating there were "no material inaccuracies" in Lee's "one and only" post.
In mid-January 2022, school administrators told Norway's father the Title IX complaint was being dismissed on the ground Lee's claims "could not be proven" due to" 'lapse in time since the alleged conduct'" and because" 'no witnesses interviewed recalled seeing any of the alleged harassment or being informed of it close in time.'" Norway continued to be treated as a sexual harasser, including by the soccer coach, who was also the sponsor of a club of which Norway was the copresident.
Norway ultimately felt so victimized and distraught, she passed out at school because of a "stress induced panic attack" and fell down a flight of stairs. She continued to be shunned by some students and still suffers from "despair, anxiety, fear for her safety, fear for her future, trouble sleeping, and overall mental distress" attributable to the bullying. Norway maintains Lee's post, in particular, "destroyed [her] reputation and caused massive trauma for [her]." She has undergone therapy and been hospitalized due to the "stress and anxiety this ordeal has caused." She also felt she had to attend college out of state and thus lost "free college tuition" at a college she had anticipated attending.
DISCUSSION
The anti-SLAPP statute is designed to prevent meritless lawsuits from chilling individuals' exercise of their rights of petition or free speech. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson).) A special motion to strike may be brought against claims "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." (Code Civ. Proc., § 425.16, subd. (b)(1).)
"Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.'" (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061 (Park).) In connection with the second step, the "court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 (Baral).) If the plaintiff cannot make a sufficient showing of merit, the court must strike the claim. (Wilson, supra, 7 Cal.5th at p. 884.)
" 'We review de novo the grant or denial of an anti-SLAPP motion.' (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 763....) 'We therefore engage in the same two-step process that the trial court undertakes in assessing an anti-SLAPP motion.' (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 962....)" (Divine Food &Catering, LLC v. Western Diocese of the Armenian Church of North America (2023) 92 Cal.App.5th 1048, 1063.)
Prong One: Claims Arising from Protected Activity
The trial court ruled Lee's post qualifies as protected activity under Code of Civil Procedure section 425.16, subdivision (e)(4) and therefore Lee carried his burden under the first prong of the anti-SLAPP analysis, shifting the burden to Norway to demonstrate that her defamation claim against Lee has some minimal merit. While Norway does not dispute that Lee's post "implicate[d] the public issue of sexual abuse," she maintains it lacked any" 'functional relationship'" to that public issue and therefore we can, and should, affirm on the ground Lee failed to carry his burden under prong one. (Italics omitted.)
Subdivision (e)(4) of Code of Civil Procedure section 425.16 brings within the ambit of the anti-SLAPP statute "any . . . conduct in furtherance of the exercise of the constitutional right . . . of free speech in connection with a public issue or an issue of public interest." (Code Civ. Proc., § 425.16, subd. (e)(4).) This provision-"the so-called catchall provision in the statute's enumeration of' "act[s] in furtherance of a person's right of petition or free speech"' ([Code Civ. Proc., ] § 425.16, subd. (e))"-embraces "a two-step inquiry for deciding whether the activity from which a lawsuit arises falls within [Code of Civil Procedure] section 425.16(e)(4)'s protection." (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1243 (Geiser), quoting FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149-150 (FilmOn).) First, the courts "ask what public issue or issues the challenged activity implicates," and second, "whether the challenged activity contributes to public discussion of any such issue." (Geiser, at p. 1243.)
The second step, not the first, "usually plays the more prominent role in screening anti-SLAPP motions because caselaw 'demonstrate[] that virtually always, defendants succeed in drawing a line-however tenuous-connecting their speech to an abstract issue of public interest.'" (Geiser, supra, 13 Cal.5th at p. 1250, quoting FilmOn, supra, 7 Cal.5th at p. 150.) Nevertheless, the first step "performs an important function in the [two-step] inquiry: It operates as a lens that focuses the analysis at the second step. In other words, to assess whether the challenged activity contributes to discussion of a public issue, [the court] must identify some public issue that the challenged activity purports to address." (Geiser, at p. 1250.)
As we have pointed out, Norway does not dispute that Lee's post "implicate[d]" a public issue, namely sexual assault and harassment, and therefore meets the first step of the Geiser/FilmOn template. Rather, she maintains the post did not "contribute" to the public discussion of these issues and thus had no" 'functional relationship'" to this public discourse, thereby failing Geiser/FilmOn's second step.
The functional relationship inquiry requires a court to consider the statement's context, including the "identity of the speaker," "the audience," and "the purpose of the speech." (FilmOn, supra, 7 Cal.5th at pp. 140, 150, 152.) The critical determination is "whether [the] defendant-through public or private speech or conduct-participated in, or furthered, the discourse that makes an issue one of public interest." (Id. at p. 151; see id. at p. 154 [it is "by carefully observing" the "wedding of content and context" that a court "can discern if conduct is 'in furtherance of' free speech 'in connection with' a public issue or issue of public interest"].)
Like the trial court, we have no difficulty concluding Lee's post "contributed" to the "public discussion" about sexual assault and harassment. Indeed, Lee made the post in the midst of the discussion in the high school community about these issues, and his post allegedly ignited an even more robust discussion-or, as Norway claims, heightened bullying-about these issues. While Norway accurately describes Lee's post as disclosing "private" and "intimate" details-or, according to Norway, lies-about their personal relationship, that does not mean the post had no" 'functional relationship'" to the public dialogue about sexual assault and harassment. To the contrary, the sharing of personal experiences, as Lee says he did here, served to make the public discourse more compelling.
Prong Two: Probability of Prevailing
Having concluded that Lee carried his burden under prong one, the trial court next considered whether Norway carried her burden under prong two to establish that her defamation claim against Lee has some minimal merit, and it ruled, with one exception, that she did. Lee, of course, challenges the court's ruling only to the extent it is adverse to him, and Norway has not cross-appealed from that part of the court's order that is adverse to her. Accordingly, to the extent the court's order struck Norway's claim to the extent based on Lee's Title IX complaint, it is unchallenged.
With respect to the merits, the trial court first rejected Lee's assertion that the "common interest privilege" applied, foreclosing any liability based on the content of his post. Lee has not challenged this aspect of the court's ruling on appeal.
The court next ruled Norway made a sufficient showing that Lee's claims about her included assertions that could be found to be defamatory per se, and specifically that some of his statements could reasonably be understood to accuse Norway of having engaged in criminal conduct, including sexual assault (Pen. Code, § 243.4, subd. (e)), possession of a photograph depicting a person under the age of 18 engaging in or simulating sexual conduct (id., § 311.11, subd. (a)), and battery (id., § 242). The court rejected arguments that, in context, Lee's statements could only be read as "mere matters of opinion." The court further ruled that even if Lee's post did not "technically accuse [Norway] of a crime," she presented evidence of "special damages" that could support a defamation claim.
Lee devotes the bulk of his briefing on appeal to arguing no statement in his post can reasonably be understood as accusing Norway of a crime and therefore the trial court erred in ruling Norway made a prima facie showing of defamation per se, allowing her to proceed without a showing of "special damages."
"The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720....) Civil Code section 45 provides, 'Libel is 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.' [¶] 'Statements that contain such a charge directly, and without the need for explanatory matter, are libelous per se. [Citation.] A statement can also be libelous per se if it contains a charge by implication from the language employed by the speaker and a listener could understand the defamatory meaning without the necessity of knowing extrinsic explanatory matter. [Citation.]' (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112 . . ., italics added . . .; Civ. Code, § 45a.)" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369-1370, fn. omitted (Wong).)
Thus, the distinction between a statement that is defamatory per se and one that is defamatory, but not defamatory per se (i.e., a statement that is defamatory per quod), is whether the statement on its face exposes the person targeted "to hatred, contempt, ridicule, or obloquy, or which causes [the person] to be shunned or avoided" or to be injured in the person's occupation, or whether its defamatory meaning only becomes apparent with additional evidence. (Wong, supra, 189 Cal.App.4th at p. 1369.) If"' "a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense, then . . . there is a libel per se. But if the reader would be able to recognize a defamatory meaning only by virtue of his or her knowledge of specific facts and circumstances, extrinsic to the publication, which are not matters of common knowledge rationally attributable to all reasonable persons, then . . . the libel cannot be libel per se but will be libel per quodrequiring pleading and proof of special damages.' (5 Witkin, Summary Cal. Law (10th ed. 2005) Torts, § 541, pp. 794-795.)" (Barker v. Fox &Associates (2015) 240 Cal.App.4th 333, 351-352 (Barker).)
Thus, a statement falsely accusing a person of committing a crime is a consummate example of a statement that is defamatory per se as"' "a reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense." '" (Barker, supra, 240 Cal.App.4th at p. 351; see generally 5 Witkin, Summary of Cal. Law (11th ed. 2023) Torts, § 639 ["The charge of commission of some kind of crime is obviously libel per se."].) However, false accusations of other kinds of conduct that expose a person to "hatred, contempt, ridicule, or obloquy," or cause a person "to be shunned or avoided" or injured in the person's occupation, can also be defamatory per se if the"' "reader would perceive a defamatory meaning without extrinsic aid beyond his or her own intelligence and common sense." '" (Wong, supra, 189 Cal.App.4th at p. 1369; Barker, at p. 351; see generally 5 Witkin, Summary of Cal. Law, supra, Torts, § 640 ["It is not necessary that the publication charge the commission of a crime; it is sufficient if it so reflects on the person's integrity as to bring him or her into disrepute."]; see, e.g. Balla v. Hall (2021) 59 Cal.App.5th 652, 687 [any reasonable reader would understand publications accusing public officials of taking specific, improper actions while performing official and professional duties "to be asserting facts harmful to their reputations, without external information"]; Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 86-87 [dissertation advisor's statements that former student falsified and plagiarized data in scientific papers sufficient for defamation per se claim]; Silk v. Feldman (2012) 208 Cal.App.4th 547, 551, 554-556 (Silk) [letter asserting homeowners association official "used her position . . . to settle a lawsuit" in order to get free parking spaces alleged "serious breach of fiduciary duty" on "its face" and was "libelous per se"]; Wong, at pp. 13711372 [jury could reasonably find that online review falsely implied dentist failed to warn and advise about silver amalgam and arguably better alternatives to its use, and could further find such a false implication was defamatory].)
Disapproved on other grounds as stated in Geiser, supra, 13 Cal.5th at page 1249.
Accordingly, we need not decide whether Lee's post accused Norway of committing conduct meeting every element of the crimes identified by the trial court, as Lee insists it did not. There can be no doubt that his allegedly false statements about Norway, on their face, exposed her "to hatred, contempt, ridicule, or obloquy" and caused her "to be shunned or avoided" (Civ. Code, § 45) and were therefore defamatory per se. (See ZL Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 623 [" 'A libel which is defamatory of the plaintiff without the necessity of explanatory matter . . . is said to be a libel on its face' [citation], or 'libelous per se' [citation]."].) Indeed, the posts that followed Lee's make it crystal clear his accusations exposed Norway to hatred, contempt, ridicule, and obloquy, and caused her to be shunned and avoided.
That the trial court ruled Lee's post was defamatory per se because it accused Norway of three crimes does not preclude this court from affirming on a slightly different legal ground since our standard of review is de novo. We also note that in her memorandum opposing Lee's special motion to strike, Norway made both arguments-that the post was defamatory per se because it accused her of "at least four different crimes" and, regardless of whether it accused her of criminal conduct, it accused her of conduct that resulted in her being treated with hatred, contempt, ridicule, and obloquy, and caused her to be shunned and avoided. She also made both arguments at the hearing on Lee's motion, and in his opening brief on appeal, Lee addressed both points. However, he maintains Norway pleaded only a defamation per se claim based solely on the assertion his post accused her of crimes, and therefore it is improper to consider any other defamation "theory" in connection with his anti-SLAPP motion. We do not read Norway's complaint so narrowly. She recounts statements in the post, alleges they were unprivileged and false, and that as a direct result, she was injured. The trial court also read her complaint more broadly, ruling not only that she had sufficiently alleged and supported a claim of defamation per se based on statements accusing her of criminal conduct, but even if she had not, she had alleged and made a sufficient showing of special damages to support a claim of defamation per quod.
Lee insists that read "in context" his post was not defamatory on its face. He argues that "other than allegations of criminal liability, the claim that Norway was injured by the Instagram Post is based on factors external to the Post, and therefore constitutes, at most, defamation per quod." He maintains that it is only by virtue of other allegations in the complaint not in his post, specifically those recounting the events that occurred and accusations other students made immediately preceding his post, that resulted in his post allegedly being "damaging to Norway." This argument seems to misperceive what it means for a statement to be defamatory per se. The question is whether the statement on its face reasonably exposes a person to "hatred, contempt, ridicule, or obloquy," or would cause a person "to be shunned or avoided" or injured in the person's occupation. Lee's post, read in its entirety and in full context, plainly meets that definition. And, specifically, it is the statements that Norway claims accuse her of crimes, but which Lee maintains do not actually do so, that, even if not actually accusing her of crimes, accuse her of conduct that could, and did, reasonably subject her to hatred, contempt, ridicule, and obloquy, and cause her to be shunned or avoided.
Her defamation claim can therefore succeed without her showing "special damages," of which Lee insists she presented no evidence. (See Silk, supra, 208 Cal.App.4th at pp. 555-556 [" 'Where the statement is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damage'" (quoting 5 Witkin, Summary of Cal. Law, supra, Torts, § 541, p. 794)].)
It is not entirely clear from Lee's briefing whether his challenge to the trial court's order is limited to the court's determination that Norway adequately alleged and sufficiently supported a claim of per se defamation, or whether he also maintains that her defamation claim, regardless of how it is characterized, is more fundamentally deficient because his post assertedly contained only nonactionable opinion and no provably false statement of fact. (See Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 426 (Bently Reserve) ["To be libelous, a' "statement must contain a provable falsehood . . ."' and, to this end,' "courts distinguish between statements of fact and statements of opinion for purposes of defamation liability" '" (quoting Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695)].) In the trial court, he variously argued that the statements in his post were "too vague to be actionable" and reflected the opinions of an inexperienced, middling teenager. The court considered his "mere opinion" argument meritless stating, "The most cursory glance at the allegations (e.g. Complaint ¶ 61) reveals statements of apparent fact."
However, on appeal, Lee has not separately addressed this issue and, instead, presents an amalgam of arguments that principally pertain to whether a statement is or is not defamatory per se. (See California Rules of Court, rule 8.204(a)(1)(B) ["Each brief must: [¶] . . . [¶] (B) State each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority...."].)
For example, in the introduction of his opening brief Lee asserts his post included only "unflattering characterizations of Norway as a 'harasser,' 'manipulator,' and 'abuser,' these terms are too vague in and of themselves to constitute defamation per se"-and goes on to assert that even if the statements are defamatory per quod, Norway failed to plead, and presented no evidence of, special damages.
In any case, to the extent Lee is making a separate argument-that his post amounts to the nonactionable opinion of a teenage boy and therefore cannot support any kind of defamation claim-we agree the post includes statements that are subject to being proved false.
In his opening brief, Lee describes the post as "a lengthy and emotional 'soul-baring' description of an adolescent's feelings about his experiences in an emotionally intense relationship falling somewhere between friendship and romance" and maintains the "statements therein consist of a combination of non-actionable opinions regarding the emotional dynamics of the relationship, and factual statements that are either not defamatory or admitted by Norway to be true."
" '[A] false statement of fact, whether expressly stated or implied from an expression of opinion, is actionable. [Citation.] The key is not parsing whether a published statement is fact or opinion, but "whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." [Citations.]' For example, 'an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion' but '[a]n opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 427.)
"To decide whether a statement expresses or implies a provably false assertion of fact, courts use a totality of the circumstances test. [Citation.] '[A] court must put itself in the place of an average reader and determine the natural and probable effect of the statement....' [Citation.] Thus, a court considers both the language of the statement and the context in which it is made. [Citations.] 'The contextual analysis requires that courts examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 427.)
"The' "crucial question of whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court." ' [Citation.] But if a statement is 'ambiguous and cannot be characterized as factual or nonfactual as a matter of law,' a jury must determine whether the statement contains an actionable assertion of fact." (Bently Reserve, supra, 218 Cal.App.4th at p. 427.)" 'The allocation of functions between court and jury with respect to factual content is analogous to the allocation with respect to defamatory meaning in general. On the latter issue, the court must first determine as a question of law whether the statement is reasonably susceptible of a defamatory interpretation; if the statement satisfies this requirement, it is for the jury to determine whether a defamatory meaning was in fact conveyed to the listener or reader. [Citations.] Similarly, it is a question of law for the court whether a challenged statement is reasonably susceptible of an interpretation which implies a provably false assertion of actual fact. If that question is answered in the affirmative, the jury may be called upon to determine whether such an interpretation was in fact conveyed.'" (Id. at p. 428.)
Looking at the totality of the circumstances in this case, Lee's post is" 'reasonably susceptible of an interpretation which implies a provably false assertion of actual fact.'" (Bently Reserve, supra, 218 Cal.App.4th at p. 428.)
Looking first at the language of the post (Bently Reserve, supra, 218 Cal.App.4th at p. 427), it plainly accused Norway of doing a number of specific things, all of which are provably false facts. Indeed, that Lee's post contained provably false facts is confirmed by his own declaration in support of his motion, wherein he states, for example, that "[e]verything that I wrote in my post [was] true and accurately reflects my factual recollections and my feelings," and that he described "accurately things that happened between us, and how I felt about those things."
The post also plainly accused Norway of sexually manipulating, harassing, or abusing him. He called her his "mental and physical abuser" and called himself a "survivor." True, he stated in the post he was "not sure what 'category' my experience falls under," but the clear import was that Norway acted in a sexualized, inappropriate, and hurtful manner. And while saying someone engaged in sexually manipulative, abusive, or harassing conduct may be an ultimate fact, based on operative facts, it is nevertheless a factual indictment the accused can disprove. (See Comstock v. Aber (2012) 212 Cal.App.4th 931, 949-950 [it was assumed allegation of sexual assault could support defamation claim, however cross-complainant failed to present any evidence the accusation was false].)
Turning to the context in which the post was made (Bently Reserve, supra, 218 Cal.App.4th at p. 427), it is all the more apparent that Lee was accusing Norway of sexual misconduct. As we have recited, this post was made on the heels of Norway having been accused by other students of supporting a student accused of sexual assault and being unsupportive and unsympathetic to victims of sexual misconduct. And by its plain language, the post purported to add to the public discourse on sexual assault, abuse, and harassment by chronicling sexual misconduct by a female student against a male student. In sum, when one looks at the totality of the circumstances, as Lee urges us to do, it is readily apparent the post portrayed Norway as having engaged in inappropriate and hurtful sexual or sexualized conduct.
Striking Additional Allegations Pertaining to Title IX Complaint
While Lee does not take issue with the trial court's granting his motion to strike to the extent Norway's defamation claim was based on his filing the Title IX complaint, he claims the court should have struck additional factual allegations referring to that complaint.
The court's order states, "Pursuant to Baral[, supra,] 1 Cal.5th 376, the court grants the anti-SLAPP motion in part and strikes plaintiff's claims based on the Title IX communications, specifically ¶ 125." Paragraph 125 was one of the eight paragraphs specifically alleging defamation as against Lee. It stated, "Defendant Lee also made a related false report to a law enforcement agency, the school's Title IX office and other authorities, knowing it was false or with reckless disregard for the truth or falsity of the report."
Lee identifies only three other allegations he maintains also should have been struck, paragraphs 88, 98, and 111. Each of these paragraphs appears in the "Factual Background" (some capitalization &boldface omitted) allegations of Norway's complaint, which are all incorporated by reference into each of Norway's separately pleaded causes of action. As such, they are allegations that "provide context" for all of Norway's claims, including against other defendants, and therefore "cannot be stricken under the anti-SLAPP statute." (Baral, supra, 1 Cal.5th at p. 394.)
In short, the trial court's order makes clear that Norway cannot base her defamation claim against Lee on the Title IX complaint he filed, or any activity connected with the handling of that complaint. Lee is not entitled to any further excising of allegations that, for background and context purposes, refer to the filing and handling of that administrative complaint.
DISPOSITION
The court's order granting in part and denying in part defendant and appellant Lee's special motion to strike is AFFIRMED. Respondent to recover costs on appeal.
We concur: Langhorne Wilson, J. Castro, J. [*]
[*]Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.