Opinion
APPEAL from an order of the Superior Court of Los Angeles County, Irving S. Feffer, Judge, Los Angeles County Super. Ct. No. BC342352
Carlsmith Ball LLP, Malcolm S. McNeil, Ole R. Sandberg and Emily E. Brown for Defendants and Appellants.
Seyfarth Shaw LLP, Todd C. Hunt and Daniel Hargis for Plaintiffs and Respondents.
TURNER, P. J.
I. INTRODUCTION
This defamation action arises from a Finnish newspaper’s coverage of a press conference. The press conference was held at the Four Seasons Hotel near Beverly Hills in connection with the release of a motion picture, Into the Blue (Columbia TriStar 2005). The movie was filmed in the Bahamas. The newspaper and on-line articles contained statements about and suggestions of sexual conduct occurring at parties and publicity events attended by the film’s stars and crew. These events were held at the Bahamian residence of an internationally known clothing manufacturer and publisher—a “fashion celebrity.” The Bahamian property is recognized as one of the most beautiful and unique homes in the world. It has been featured on television programs including “Life of Luxury.” The trial court denied defendants’ motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. The trial court found plaintiffs’ defamation claim did not arise from an act in furtherance of defendants’ constitutional free speech right in connection with a public issue. We reverse the order. We conclude a newspaper’s coverage of a press conference concerning the movie industry and sexual conduct within the confines of a renowned Bahamian residence owned by a fashion industry magnate was “any act . . . in furtherance of [defendants’] right of . . . free speech under the United States or California Constitution in connection with a public issue” within the meaning of section 425.16, subdivision (b)(1). We further find plaintiffs failed to establish a probability of prevailing on the merits in that they failed to present any evidence defendants acted with actual malice. We direct the trial court to enter an order granting defendants’ special motion and striking the complaint. In addition, on remand, defendants are entitled to recover their attorney’s fees and costs, including those incurred on appeal.
All further statutory references are to the Code of Civil Procedure except where otherwise noted.
II. BACKGROUND
A. The Complaint
Plaintiffs are Nygård, Inc., Nygård International Partnership, and Peter Nygård. Defendants are Alma Media Corporation, a Finnish corporation with its principal place of business in Helsinki, Kustannusosakeyhtiö Iltalehti (Iltalehti), a Finnish newspaper, and Kirpi Uimonen, an Iltalehti reporter. Alma Media Corporation publishes Iltalehti. Alma Media Corporation is not a party to this appeal.
Plaintiffs allege that on September 24, 2005, an article was published in Iltalehti, “a tabloid magazine,” that made defamatory statements about them. An abbreviated version of the article was also published on Iltalehti’s Internet Web site. The articles referred to events plaintiffs hosted at their property in Nygård Cay, Bahamas. The Bahamian property includes Mr. Nygård’s residence and Nygård entities’ corporate offices. The articles included disparaging statements as follows: “Quoted a celebrity in Finnish as calling Plaintiffs’ resort property in Nygård Cay, Bahamas ‘dirty/tainted’”; “Stated in Finnish that, ‘Hollywood Stars were disgusted/shocked: Sex party at Nygård’s home’”; “Referred in Finnish to an event at Plaintiffs’ resort property in Nygård Cay, Bahamas as a ‘Perverse Party’ and published (in Finnish) that ‘Hollywood stars were disgusted/shocked when visiting Peter Nygård’s home’”; “Quoted a celebrity in Finnish as stating, ‘On the weekends, Nygård would host parties that began with sports, massaging, manicures [and] pedicures . . . then things got wild. It’s encouraged for everyone to behave “wildly.” Young women attend the Sunday party, they get naked and some have sex in the hot tubs with everyone watching. It was scary/disgusting.’”; “Quoted a celebrity in Finnish as stating, ‘Nygård’s home during that time became “party central.” He is a 60-something man who lives in his “own world” in a tropical paradise. The place is fun, but at the same time unbelievably tasteless’”; and “Quoted a celebrity in Finnish as stating, ‘Even though the activities were “disturbing,” I spent a lot of time there—the place is like Disney World, in a weird way.” These false statements, published with actual malice, caused damage to plaintiffs’ business and reputation.
An English translation of the September 24, 2005 Iltalehti newspaper article was attached as an exhibit to the complaint. The article reported, among other things, that Mr. Nygård, a millionaire, had entertained movie stars and a film crew at his “Bahamas villa” while the movie Into the Bluewas being filmed on the islands. Among the actors who were entertained at Mr. Nygård’s villa were Jessica Alba, Paul Walker, and Ashley Scott. The article stated, “People were encouraged to behave in a crazy way. In the parties on Sundays there are young women that get undressed and may have sex in the Jacuzzi where anybody can see them.” The film’s director, John Stockwell, was reported to have said, “[T]he Nygård house became the crew’s party center” during the four months they were working in the Bahamas. Mr. Stockwell is apparently quoted as also saying: “[Mr. Nygård] is in his early sixties, a man who lives in his own never-never land in a tropical paradise. The place is a lot of fun, but at the same time in unbelievably bad taste. I could not live that way myself. [¶] . . . ‘[S]trange things were happening’ when the local girls came to the party.” Additionally, the article stated: “Paul Walker[,] known for his films The Fast and the Furious[,] enjoyed being Nygård’s guest, but he, too, considers the parties eccentric. [¶] . . . The place was like Disneyland, in a crazy way.”
B. The Special Motion To Strike
1. Defendants’ Evidence
Defendants moved to strike the complaint pursuant to section 425.16. Defendants presented evidence Mr. Nygård was “a longstanding entertainment and fashion celebrity known throughout North America” and “an internationally prominent public figure” with “extensive entertainment industry contacts.” Mr. Nygård was: “Chairman of Canada’s largest women’[s] clothing and fashion manufacturing company”; the owner of N Magazine, “a fashion magazine which is distributed throughout California and North America”; and the “founder of the internationally-known charity, The Nygård Endowment Fund.” Further, according to a complaint filed by plaintiffs in another defamation lawsuit on August 11, 1999, “[Mr.] Nygård, Nygård, Inc., and Nygård International [Partnership] are indistinguishable from each other as Nygård has been for many years a public figure throughout North America . . . .” According to Ken Grondin, the chief financial officer of Nygård, Inc. and Nygård International Partnership, these entities: “manufacture and distribute women’s fashion clothing throughout the world”; “conduct a substantial amount of business in the United States and California, and maintain several offices, warehouses, and distribution centers in California.” Additionally, according to Mr. Grondin, Nygård, Inc. and Nygård International Partnership “operate several warehouses in Gardena, California” which distribute clothing and related products throughout the United States. In addition, Mr. Grondin stated the Nygård companies also maintain offices and other facilities in Gardena and Marina del Rey. In 2005, the California facilities handled approximately 60 percent of all Nygård products that were shipped in the United States. Mr. Grondin declared: “The Nygård Cay on-location movie filming in 2005 described in the [Iltalehti] article was hosted by the Nygård Companies for public relations purposes. Although the event occurred at a facility which includes Mr. Nygård’s Bahamas residence, the event was also held on behalf of the Nygård Companies, which maintain offices at this location.”
Ms. Uimonen, who authored the article in question, declared that the information in the article resulted from interview sessions involving five reporters at the Four Seasons Hotel near Beverly Hills. The sessions were arranged by the film’s distributor. The persons interviewed included actors, Ms. Alba, Ms. Scott, and Mr. Walker, and the director, Mr. Stockwell. The article was published one or two weeks before the film Into the Bluewas released in the United States and two months before it was released in Finland.
Defendants presented further evidence that at the time they published the articles in question: they did not doubt the veracity of the statements therein; no one had provided a contradictory version of the events described; and all interviewed individuals’ accounts were consistent. Ms. Uimonen, the reporter, declared: “The statements contained in the Articles were based on statements made to me in interviews I conducted with the persons quoted therein. I have never doubted the veracity of the statements made in the Articles. None of the individuals I interviewed provided statements that contradicted the version of events described in the Articles. To the contrary, all the individuals I interviewed provided accounts that were consistent with the accounts of the other individuals I interviewed.”
2. Plaintiffs’ evidence
Plaintiffs opposed the motion. Plaintiffs argued: defendants did not meet their initial burden as the article describes private events, not a public issue; there was a strong probability plaintiffs would prevail as percipient witnesses denied any sexual conduct at the parties in question; because discovery was stayed under subdivision (g) of section 425.16, the court should not require plaintiffs to demonstrate defendants acted with malice; and actual malice, that is, a reckless disregard for the truth, was established as defendants undertook no investigation and clearly exaggerated the facts when they described the events in question as “‘sex parties.’”
In his declaration—filed as part of plaintiffs’ opposition to the special motion to strike—Mr. Stockwell, the director, said: “I saw nothing at Nygård Cay that resembled the ‘sex party’ events described in Ms. Uimonen’s article. The events I attended at Nygård Cay were not ‘perverse,’ nor was I ‘shocked’ by anything that occurred there. To my knowledge no one was ‘encouraged to behave in a crazy way,’ nor do I believe that to be true. To my knowledge, no one ‘got undressed [or had] sex in the Jacuzzi where anybody can see them’ while I was visiting Nygård Cay. [¶] . . . I have never been made aware of any allegations of this type of activity occurring at Nygård Cay except in Ms. Uimonen’s article in Iltalehti Magazine.” Mr. Stockwell did not declare he never made the statements attributed to him in the article.
Pamela Erickson is Nygård, Inc.’s “‘Director of Marketing, Nygard.com USA.’” She was working at the company’s facilities in the Bahamas during the filming of Into the Blue. She was present at Nygård Cay at various times when members of the film crew visited. Ms. Erickson declared: “I have never seen activities such as are described in Ms. Uimonen’s article [in] Iltalehti Magazine. This includes the activities purportedly described to Ms. Uimonen by Jessica Alba, John Stockwell, and Paul Walker. In fact, at no time did the events described in Ms. Uimonen’s magazine article occur at Nygård Cay while members of the Into the Blue film crew, or anyone else for that matter, were present. [¶] . . . The events hosted at Nygård Cay while the Into the Blue film crew attended were not ‘perverse,’ ‘shocking,’ ‘wicked,’ ‘crazy,’ ‘wild,’ ‘eccentric,’ or in any way indecent. These events were corporate events hosted by the Nygård Companies. Attendees of these events were not encouraged by Plaintiffs or anyone else to behave in a ‘crazy’ or ‘wild’ manner. I never saw, heard of, or otherwise became aware of people ‘get[ting] undressed’ at these events. Likewise, I never saw, heard of, or otherwise became aware of anyone ‘hav[ing] sex in the Jacuzzi where anybody can see them.’ Simply stated, the events described in the article did not occur, and it is unfathomable that they would occur at events hosted by Plaintiffs. [¶] . . . I have never been made aware of any allegations of this type of activity occurring at Nygård Cay except in Ms. Uimonen’s article in Iltalehti Magazine.” (Quotation marks substituted for underscoring.)
Declarations to the same effect were filed by Nygård, Inc.’s construction administrator, Patricia Landry, and its purchase controller/loss prevention officer, Ana Garcea. For example, Ms. Landry likewise declared she was working at the company’s Bahamas facility when Into the Blue was being filmed and was present at Nygård Cay at various times when the film crew visited. Ms. Landry declared: “I have never seen activities such as are described in Ms. Uimonen’s article [in] Iltalehti Magazine. This includes the activities purportedly described to Ms. Uimonen by Jessica Alba, John Stockwell, and Paul Walker. In fact, at no time did the events described in Ms. Uimonen’s magazine article occur at Nygård Cay while members of the Into the Blue film crew, or anyone else for that matter, were present. [¶] . . . The events hosted at Nygård Cay while the Into the Blue film crew attended were not ‘perverse,’ ‘shocking,’ ‘wicked,’ ‘crazy,’ ‘wild,’ ‘eccentric,’ or in any way indecent. These events were corporate events hosted by the Nygård Companies. Attendees of these events were not encouraged by Plaintiffs or anyone else to behave in a ‘crazy’ or ‘wild’ manner. I never saw, heard of, or otherwise became aware of people ‘get[ting] undressed’ at these events. Likewise, I never saw, heard of, or otherwise became aware of anyone ‘hav[ing] sex in the Jacuzzi where anybody can see them.’ The events described in the article did not occur, and I do not believe that they would occur at events hosted by Plaintiffs. [¶] . . . I have never been made aware of any allegations of this type of activity occurring at Nygård Cay except in Ms. Uimonen’s article in Iltalehti Magazine.”
Ms. Erickson additionally declared, “[Mr. Nygård’s residence] is recognized as one of the most beautiful and unique homes in the world by ‘Lifestyles of the Rich [and] Famous,’ ‘Victory Gardens,’ ‘Oprah,’ ‘Life of Luxury,’ and . . . ‘World’s Most Extreme Homes.’” (Quotation marks substituted for underscoring.) It was filmed in 2004 for the television program “Life of Luxury.” It has also been the site of the Bahamas Film Festival, movie premieres, and the Nygård Cay Songwriters Festival.
III. DISCUSSION
A. Standard Of Review And Burdens Of Proof
A special motion to strike may be filed in response to “‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) Section 425.16 authorizes a court to summarily dismiss such meritless suits. (Stats. 1992, ch. 726, § 2, pp. 3523-3524.) The purpose of the statute is set forth in section 425.16, subdivision (a), as follows: “The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. . . .” Under section 425.16, “A cause of action against a person arising from any act . . . in furtherance of the . . . right of petition or free speech . . . in connection with a public issue” must be stricken unless the court finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415.)
Section 425.16, subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Italics added.) A specific public interest showing is required for acts claimed to fall under subdivisions (e)(3) and (4), but not for acts alleged to fall under subdivisions (e)(1) and (2). (Briggs v. Eden Council for Hope & Opportunity (1999)19 Cal.4th 1106, 1111-1123; Du Charme v. International Brotherhood of Electrical Workers, Local 45 (2003) 110 Cal.App.4th 107, 112-114.) Section 425.16, subdivision (e), defines acts in furtherance of free speech or petition rights in connection with a public issue as including four categories of conduct. The Court of Appeal has held: “[T]he categories enumerated [in section 425.16, subdivision (e)] are not all-inclusive. [¶] The acts in furtherance of a person’s right to free speech specified by the statute are preceded by the word ‘includes.’ The word ‘includes’ is ordinarily a term of enlargement rather than limitation. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1101.) The use of ‘includes’ implies that other acts which are not mentioned are also protected under the statute. (Doyle v. Board of Supervisors (1988) 197 Cal.App.3d 1358, 1364.)” (Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175.)
When a special motion to strike is made, the trial court must consider two components. First, the court must consider whether the moving defendant has carried its burden of showing that the lawsuit falls within the purview of section 425.16; i.e., arises from protected activity. The moving defendant has the initial burden of establishing a prima facie case that plaintiff’s cause of action arises out of conduct in the furtherance of petition or free speech rights. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, overruled on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10.) The moving defendant has no obligation to demonstrate that the plaintiff’s subjective intent was to chill the exercise of constitutional speech or petition rights. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 66-67.) Nor must a defendant show that the action had the effect of chilling free speech or petition rights. (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75-76.)
Second, once the defendant meets this burden, the obligation shifts to the plaintiff to establish a probability that she or he will prevail on the merits. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115.) The Supreme Court has explained the plaintiff’s burden: “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.”’ (Briggs v. Eden Council for Hope & Opportunity[, supra,] 19 Cal.4th [at p.] 1123, quoting Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.) 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.’ (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548; accord, Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274.) 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. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1365[, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5].) [¶] In denying a motion to strike on the ground that the plaintiff has established the requisite probability of success, therefore, the trial court necessarily concludes that the plaintiff has substantiated a legally tenable claim through a facially sufficient evidentiary showing and that the defendant’s contrary showing, if any, does not defeat the plaintiff’s as a matter of law. This determination establishes probable cause to bring the claim . . . .” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, orig. italics; accord, Taus v. Loftus (2007) 40 Cal.4th 683, 713.) As the Court of Appeal recently observed, “The process the court uses in determining whether the plaintiff has shown a probability of prevailing on the merits is similar to the process used in determining motions for nonsuit, directed verdict or summary judgment. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)” (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) We conduct an independent review of the trial court’s decision. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
B. Evidentiary Objections
Defendants raised evidentiary objections to declarations plaintiffs filed in opposition to the special motion to strike. Defendants repeatedly asserted the following objection: “Lack of relevance; lack of foundation, conclusion, and speculation in that the witness has not established that she was present at the time of the events to which she refers.” In addition, with respect to the following statement, which is repeated in several declarations, defendants raised a relevance objection—“I have never been made aware of any allegations of this type of activity occurring at Nygård Cay except in Ms. Uimonen’s article in Iltalehti Magazine.” The trial court ruled as follows: “The court sustains defendants’ evidentiary objections in their entirety on the ground that the declarants have not established that they were present at the time of the events to which the articles refer.” On appeal, plaintiffs contend that because the newspaper article is vague as to the timing of the events discussed, it was impossible for the witnesses to identify any specific date as that on which the activities described occurred.
We review the trial court’s evidentiary rulings for an abuse of discretion. (Dart Industries, Inc. v. Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1078; People v. Alvarez (1996) 14 Cal.4th 155, 201.) We agree with plaintiffs that the evidentiary objections should have been overruled. The Iltalehti article is uncertain as to the number and timing of the parties. It refers to: “several occasions last summer . . . while the movie Into the Bluewas being filmed on the islands”; “there were parties at the villa at weekends”; “in the parties on Sundays”; and “the Nygård house became the [Into the Blue] crew’s party center for [the four months they were working in the Bahamas].” Mr. Stockwell declared he visited plaintiffs’ Nygård Cay facilities and residence during the period in 2004 when Into the Bluewas filming in the Bahamas. Ms. Erickson declared: “I was working at the [Nygård] facilities in the Bahamas periodically during the time that the movie Into the Blue was being filed in the Bahamas. I recall members of the film crew, including actors Jessica Alba, Paul Walker, and Ashley Scott, and director John Stockwell, visiting [p]laintiffs’ Nygård Cay facilities and residence during the time this movie was being filmed. I was present at various times when the members of the film crew visited the Nygård Cay location.” (Underscore omitted.) Similarly, Ms. Landry’s and Ms. Garcea’s declarations state: “I was working at the [Nygård] facilities in the Bahamas during the time that the moving Into the Blue was being filmed in the Bahamas. I recall members of the film crew . . . visiting [p]laintiffs’ Nygård Cay facilities and residence during the time this movie was being filmed. I was present at various times when the members of the film crew visited the Nygård Cay location.” (Underscore omitted.) Given the article’s lack of specificity, the declarations suffice to show the declarants were from time to time present during the general time frame described in the article—that is, while Into the Bluewas filming in the Bahamas.
C. Public Issue Or An Issue Of Public Interest
Defendants assert they made a threshold showing that plaintiffs’ cause of action arose out of a “written . . . statement or writing . . . in connection with an issue of public interest” within the meaning of section 425.16, subdivision (e)(3). Defendants raised the issue of the applicability of section 425.16, subdivision (e)(3) in the trial court. Defendants specifically adverted to section 425.16, subdivision (e)(3) in the points and authorities filed with the special motion to strike and in the reply. Further, the application of section 425.16, subdivision (e)(3) is referred to in the opening and reply briefs. In the opening brief, defendants relied on cases that interpret section 425.16, subdivision (e)(3) including: Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 397; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807; and Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647-653, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at page 68, footnote 5. The section 425.16, subdivision (e)(3) issue has been preserved and appropriately briefed.
Plaintiffs advocate adopting a narrow definition of “an issue of public interest”—specifically: “government matters and private conduct that affect a community in a manner similar to a government entity”; a statement that “in some manner contributes to public debate”; and “activity that, at a minimum, contributes in some manner to public issues that have some substantive importance, either politically, socially or to a particular community.” Plaintiffs argue the meaning of “an issue of public interest” must be linked to the purpose of section 425.16—to “promot[e] participation in matters of public significance.” We reject that position.
The “issue of public interest” element is to be construed broadly. (§ 425.16, subd. (a); Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23; Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at p. 808.) Further, in Navellier v. Sletten, supra, 29 Cal.4th at page 91, our Supreme Court held: “[W]e have declined to hold ‘that section 425.16 does not apply to events that transpire between private individuals’ (Briggs [v. Eden Council for Hope & Opportunity], supra, 19 Cal.4th at p. 1116) and have explicitly rejected the assertion ‘“that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government’” (ibid., quoting Braun v. Chronicle Publishing Co. [(1997)] 52 Cal.App.4th [1036,] 1046-1047). Plaintiffs’ arguments to the contrary are not persuasive.” Section 425.16, subdivision (b)(1) states in part, “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike . . . .” (Italics added.) News reporting is an act of free speech. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240; Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at p. 1046.) Moreover, there is a public interest in newspaper coverage of a press conference in connection with the international release of a film and sexual conduct occurring during the filming in the renowned Bahamian residence of an internationally known clothing manufacturer. The film and fashion industries, as well as the lifestyle of someone rich and famous, are all matters of interest to the news-consuming public.
Sexual conduct and lifestyles of publishers such as Mr. Nygård are matters of ongoing public interest. (Bradlee, A Good Life: Newspapering and Other Adventures (1995) p. 159 [former newspaper editor’s assignation with his second wife while still married to his first spouse]; Martin, Henry and Clare: An Intimate Portrait of the Luces (1991) pp. 189-190, 247-258, 324 [publisher’s spouse’s liaisons with a labor leader, Army general, and other men in the United States and Europe]; Miller, Bunny: The Real Story of Playboy (1984) pp. 145-147 [then middle-aged publisher Hugh Hefner’s sexual relationship with a college freshman]; Nasaw, The Chief: The Life of William Randolph Hearst (2000), p. 339 [publishing magnate’s lengthy sexual relationship with an actor].) In a similar vein, the public has a profound interest in the sexual lifestyles of actors. (Andersen, An Affair To Remember (1997) pp. 154-155, 163 [decades long love affair between Katharine Hepburn and Spencer Tracy]; Hudson, Rock Hudson: His Story (1986) pp. 34-35 [actor Rock Hudson’s relationships with other men]; Morris, Dutch (1999) p. 282 [actor’s relationships with women between marriages]; Woodward, Wired: The Short Life and Fast Times of John Belushi (1984) pp. 243, 400 [comedian John Belushi’s sexual relationships with women other than his wife].) These lifestyle choices and worldviews are grist for the controversy as to the role of media in our culture. (Colson, How Now Shall We Live? (1999) pp. 237-244 [changing place of sex in society]; Dobson, Children at Risk: The Battle for the Hearts and Minds of Our Kids (1990) p. 209 [television magnate Ted Turner’s view that “Christianity is a religion for losers” as being emblematic of views of the cultural Hollywood elites]; Knight, The Age of Consent: The Rise of Relativism and the Corruption of Popular Culture (1998) p. 122 [changing nature of films].) The subjects raised at the news conference are matters of public interest within the meaning of section 425.16, subdivision (e)(3) when that provision of law is broadly construed.
Decisional authority supports our conclusion. In Seelig v. Infinity Broadcasting Corporation, supra, 97 Cal.App.4th at pages 807-808, for example, Division Five of the Court of Appeal for the First Appellate District found there was a public interest in an on-air talk radio program discussing a television network broadcast, Who Wants to Marry a Millionaire. Our colleague Associate Justice Mark B. Simons wrote: “The offending comments arose in the context of an on-air discussion between the talk-radio cohosts and their on-air producer about a television show of significant interest to the public and the media. This program was a derivative of Who Wants to Be a Millionaire, which had proven successful in generating viewership and advertising revenue. Before and after its network broadcast, Who Wants to Marry a Multimillionaire generated considerable debate within the media on what its advent signified about the condition of American society. One concern focused on the sort of person willing to meet and marry a complete stranger on national television in exchange for the notoriety and financial rewards associated with the Show and the presumed millionaire lifestyle to be furnished by the groom. By having chosen to participate as a contestant in the Show, plaintiff voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media.” (Ibid.) Similarly, in Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050, 1055, 1064, Division Four of this appellate district held the issue of public interest requirement was met where the plaintiff: participated in a call-in radio talk show; was told he was too old for the target audience; and complained on the air that he was being discriminated against because of his age. The radio show was described as, “‘[A]n extremely popular singles-oriented radio talk show that is broadcast in Los Angeles each weekday . . . .’” (Id. at p. 1055.) Our Division Four colleagues concluded, “[T]he alleged tortious conduct occurred in connection with a live call-in radio talk show addressing subjects of interest to the public at large.” (Id. at p. 1064.) We conclude defendants carried their burden of showing the lawsuit falls within the purview of section 425.16. Defendants have established that plaintiffs’ cause of action arises out of defendants’ acts in furtherance of their free speech rights. (§ 425.16, subd. (b)(1).)
Plaintiffs assert defendants’ articles concern only “celebrity gossip,” which is not an issue of public interest. They rely on two federal District Court decisions—Rogers v. Home Shopping Network, Inc. (C.D.Cal. 1999) 57 F.Supp.2d 973, 985, footnote 7, and Condit v. National Enquirer, Inc. (E.D.Cal. 2002) 248 F.Supp.2d 945, 948-954—for the proposition that “celebrity–watching” is not an issue of public interest within the meaning of section 425.16. In Rogers, entertainer Mimi Rogers filed a libel action against the Home Shopping Network and the National Enquirer. Ms. Rogers filed an application to defer the special motion to strike hearing so she could “pursue discovery” before filing an opposition. (Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2d at p. 974.) The United States District Court for the Central District of California concluded the hearing on the special motion to strike should be continued to allow Ms. Rogers time to conduct discovery. (Id. at p. 985.) The district court held that discovery issues in the special motions to strike context were controlled by rule 56(f) of the Federal Rules of Civil Procedure (28 U.S.C.), the federal summary judgment provision.
The district court also noted, in dicta, that the National Enquirer “may have trouble” meeting the public issue or issue of public interest element: “California decisions seem clear that the fact that a statement appeared in a newspaper is insufficient to satisfy this element. [Citations.] [¶] It is true that California courts have found the public issue or issue of public interest element to be satisfied by speech on many different subjects. [Citations.] However, none of these cases held that celebrity-watching is inherently a public issue. That a celebrity might be a public figure for purposes of the First Amendment should not mean that all speech about that celebrity is necessarily a public issue or an issue of public interest for purposes of [section] 425.16[, subdivision] (e). This is a hurdle National Enquirer must clear when the Court considers the special motion to strike.” (Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2dat p. 985, fn. 7.) Plaintiffs rely on this dicta in support of their contention that “celebrity watching” does not meet the public interest requirement of section 425.16, subdivision (e)(3).
In Condit, Carolyn Condit, the wife of former United States Congressman Gary A. Condit, brought a libel action against the National Enquirer. The tabloid had published articles claiming Ms. Condit had “verbally attacked” Mr. Condit’s intern, the late Chandra Levy, before she disappeared. (Condit v. National Enquirer, Inc., supra, 248 F.Supp.2d at p. 948.) The United States District Court for the Eastern District of California denied a special motion to strike. (Id. at p. 954.) The district court found there was no issue of public interest because: “[W]hether the statements concerned a matter of public interest cannot be determined on the basis of media coverage, notoriety or potential newsworthiness” (id. at p. 953); the plaintiff was not a public figure; and “[t]he criminal investigation of the disappearance of Ms. Levy is not necessarily a political or community issue in which public opinion and input is inherent and desirable . . . .” (id. at p. 954).
Those decisions, of course, are not binding on this court. (People v. Crittenden (1994) 9 Cal.4th 83, 120, fn. 3; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 299; McMullen v. Haycock (2007) 147 Cal.App.4th 753, 758.) In Rogers, the statements that served as the basis of the plaintiff’s libel action are never detailed. (Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2d at pp. 974-985.) Moreover, all the district court held was that “celebrity watching” was not “inherently” a matter of public interest for purposes of section 425.16—a proposition that makes sense. But as previously discussed, this case does not involve mere “celebrity watching” as was the subject of discussion in Rogers. (Id. at p. 985, fn. 7.) As to Condit, coverage of a murder investigation involving an alleged lover of a married member of Congress is a matter of public interest. In any event, we disagree with the analyses in Rogers and Condit as they relate to section 425.16, subdivision (e)(3). It bears repeating that section 425.16 applies to “any act” in furtherance of free speech (§ 425.16, subd. (b)(1)), including “any written or oral statement or writing . . . in connection with an issue of public interest” (§ 425.16, subd. (e)(3)) and that the statute must be “construed broadly.” (§ 425.16, subd. (a).) Moreover, as noted above, our Supreme Court has rejected the notion that, “‘[T]he only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government.’ [Citation.]” (Brigs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1116; accord, Navellier v. Sletten, supra, 29 Cal.4th at p. 91.)
D. Place Open To The Public Or Public Forum
We turn to the question whether defendants’ writings were “made in a place open to the public or a public forum.” (§ 425.16, subd. (e)(3).) We conclude both the newspaper and the Web site are places open to the public or public forums. The Supreme Court and the Courts of Appeal have held that a Web site accessible to the public is a public forum for purposes of section 425.16. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4; Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, ___ [59 Cal.Rptr.3d 48, 55]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 895; Computer Xpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1007.) As the Court of Appeal observed in Huntingdon Life Sciences, Inc.: “Statements on [defendant’s] Web site are accessible to anyone who chooses to visit the site, and thus they ‘hardly could be more public.’ [Citation.]” (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1247, quoting Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895.) Defendants’ Web site can be viewed by anyone with access to the Internet. Therefore, it is a place open to the public and a public forum.
The Courts of Appeal have disagreed whether a newspaper is a public forum. (Compare Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161 [Gay and Lesbian Times “clearly qualifies as a ‘public forum’”]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478 [homeowners’ association newsletter was a public forum]; with Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1130-1131 [member association’s newsletter was not a public forum]; Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1131, disapproved on another point in Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123, fn. 10 [San Jose Mercury newspaper was not a public forum, citing Lafayette Morehouse, Inc.]; Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863, fn. 5 [in dicta, dubious whether the San Francisco Chronicle newspaper was a public forum].) The courts concluding a newspaper is not a public forum have relied on the fact that editors and publishers control the content. (E.g., Lafayette Morehouse, Inc. v. Chronicle Publishing Co., supra, 37 Cal.App.4th at p. 863, fn. 5.) Keeping in mind that the statute must be construed broadly (§ 425.16, subd. (a)), we agree with the conclusion the Court of Appeal reached in Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at page 478: “Read in context of the entire statutory scheme, a ‘public forum’ includes a communication vehicle that is widely distributed to the public and contains topics of public interest, regardless whether the message is ‘uninhibited’ or ‘controlled.’” As is true of Web sites, a newspaper that is accessible to anyone who chooses to read it hardly could be more public. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., supra, 129 Cal.App.4th at p. 1247; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 895.) Thus, defendants met their burden of proof. Given the foregoing, we need not address the applicability of section 425.16, subdivision (e)(4), which served as the sole basis of the trial court’s ruling.
E. Probability Of Prevailing
1. Overview
The burden shifted to plaintiffs to establish a probability of prevailing on their libel claim. (§ 425.16, subd. (b)(1).) As discussed above, plaintiffs were required to demonstrate the complaint was legally sufficient and supported by a facially sufficient evidentiary showing. (Taus v. Loftus, supra, 40 Cal.4th at p. 713; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) Plaintiffs have not met that burden with respect to the actual malice element of their claim.
Our Supreme Court has described the elements of a defamation claim: “The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782, citing Civ. Code, §§ 45-46 and cases.)” (Taus v. Loftus, supra, 40 Cal.4th at p. 720.) In addition, because plaintiffs are public figures, a status they do not dispute, they must also establish defendants acted with actual malice; with knowledge the republished statements were false or with reckless disregard of their falsity. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280; Khawar v. Globe International Inc. (1998) 19 Cal.4th 254, 262; Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.) The parties agree that only falsity and actual malice are at issue here. Plaintiffs do not argue they are not public figures. More critically, plaintiffs never made the argument they are not public figures in the trial court where defendants could have presented evidence on the subject. On appeal, plaintiffs argue they are excused from demonstrating that defendants acted with malice because no discovery has been conducted. Plaintiffs base their contention on what we will describe later as a misanalysis of Metabolife Intern., Inc. v. Wornick (9th Cir. 2001) 264 F.3d 832, 845-846. Plaintiffs reason that once the complaint was filed they could not use any discovery methods because of section 425.16, subdivision (g). Based on their inability to use discovery methods, plaintiffs argue that need not make a showing defendants acted with actual malice. Moreover, plaintiffs argue they met the burden of providing a prima facie case of actual malice. But plaintiffs never argue they are not public figures. Thus, section 425.16 requires plaintiffs establish a prima facie case of falsity and actual malice to avoid dismissal.
Section 425.16, subdivision (g) states: “All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision.”
2. Falsity
Plaintiffs must establish falsity; truth is a complete defense to a defamation claim. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132-1133; Hejmadi v. Amfac, Inc. (1988) 202 Cal.App.3d 525, 552-553.) The Court of Appeal has explained: “‘In all cases of alleged defamation, whether libel or slander, the truth of the offensive statements or communication is a complete defense against civil liability, regardless of bad faith or malicious purpose.’ (Smith v. Maldonado [(1999)] 72 Cal.App.4th [637,] 646.) ‘[T]he defendant need not justify the literal truth of every word of the allegedly defamatory matter. It is sufficient if the substance of the charge is proven true, irrespective of slight inaccuracy in the details, “so long as the imputation is substantially true so as to justify the ‘gist or sting’ of the remark.”’ (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1180-1181, [some italics added].)” (Raghavan v. Boeing Co., supra, 133 Cal.App.4th at pp. 1132-1133.) However, a defendant is liable for republication of a defamatory statement. (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1243; Khawar v. Globe International, Inc., supra, 19 Cal.4th at p. 268.) As one treatise explains: “The defense of truth does not permit a defendant to escape liability by pleading that he or she accurately repeated what another said. This amounts merely to republication, for which courts hold defendants liable. [Citation.]” (Cal. Civil Practice (Thompson/West 2003) Torts, § 21:27; accord, 5 Witkin, Summary of Cal. Law (10th ed. 2005) § 537, p. 788.) This is true even if the defendant cites the source of the defamatory statement or that it is merely repeating what someone else said. (See Shively v. Bozanich, supra, 31 Cal.4th at p. 1243; Gilman v. McClatchy (1896) 111 Cal. 606, 612.)
Plaintiffs presented evidence tending to establish falsity—that the sexual and other conduct described in defendants’ newspaper and on-line articles did not occur; that there were no “‘sex parties.’” Mr. Stockwell, the film’s director, and Nygård, Inc. employees, Ms. Erickson, Ms. Landry, and Ms. Garcea, were present at Mr. Nygård’s residence at various times when the actors and crew were also guests. None of the declarants observed any sexual or other activity of the type reported or implied in defendants’ articles. This evidence tends to establish the events as described in the articles never occurred. A trier of fact could reasonably infer that Mr. Stockwell, Ms. Erickson, Ms. Landry, or Ms. Garcea would have seen the sexual and other activity described in the articles if it had in fact occurred. It is true, as defendants point out, that only Mr. Stockwell was a source quoted in the articles; moreover, Mr. Stockwell did not deny making the statements attributed to him. But the immediate question is not whether Mr. Stockwell and others made the statements quoted in the articles, but whether their assertions are true. (Shively v. Bozanich, supra, 31 Cal.4th at p. 1243; Khawar v. Globe International, Inc., supra, 19 Cal.4th at p. 269.) As discussed above, plaintiffs’ evidence would support an inference of falsity.
We turn to the question whether defendants’ evidence defeats plaintiffs’ showing as a matter of law. (Taus v. Loftus, supra, 40 Cal.4th at p. 713; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) In support of their special motion to strike, defendants presented evidence that at the time they published the article in question: they did not doubt the veracity of the statements repeated therein; no one had provided a contradictory version of the events described; and all of the accounts of interviewed individuals were consistent. This was not direct evidence the events described in fact occurred. At best, it created a triable issue as to whether the events occurred as described in defendants’ articles. Defendants’ evidence was insufficient to defeat plaintiffs’ evidence of falsity as a matter of law. (See, e.g., Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1439; Ross v. Kish, supra, 145 Cal.App.4th at pp. 202-203; see generally, Soukup v. Law Offices of Herbert Hafif supra, 39 Cal.4th at p. 269, fn. 3; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.)
3. Actual Malice
Our Supreme Court has explained: “[A]ctual malice means that the defamatory statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’ (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 280.) Reckless disregard, in turn, means that the publisher ‘in fact entertained serious doubts as to the truth of his publication.’ (St. Amant v. Thompson [(1968)] 390 U.S. 727, 731.) To prove actual malice, therefore, a plaintiff must ‘demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.’ (Bose Corp. v. Consumers Union of U.S., Inc. [(1984)] 466 U.S. 485, 511, fn. 30; see also McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860.) [¶] Actual malice is judged by a subjective standard; otherwise stated, ‘there must be sufficient evidence to permit the conclusion that the defendant . . . had a “high degree of awareness of . . . probable falsity.”’ (Harte-Hanks Communications v. Connaughton [(1989)] 491 U.S. 657, 688.) To prove this culpable mental state, the plaintiff may rely on circumstantial evidence, including evidence of motive and failure to adhere to professional standards. (Ibid.; see also Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 257-258.) When . . . a finding of actual malice is based on the republication of a third party’s defamatory falsehoods, ‘failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient.’ (Harte-Hanks Communications v. Connaughton, supra, 491 U.S. 657, 688.) Nonetheless, the actual malice finding may be upheld ‘“where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports”’ (ibid.), and the republisher failed to interview obvious witnesses who could have confirmed or disproved the allegations (id. at p. 682) or to consult relevant documentary sources (id. at pp. 683-684 [failure to listen to tape]).” (Khawar v. Globe International Inc., supra, 19 Cal.4th at pp. 275-276.)
Similarly, in Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at pages 257-258, our Supreme Court held: “[A]ctual malice can be proved by circumstantial evidence. ‘[E]vidence of negligence, of motive and of intent may be adduced for the purpose of establishing, by cumulation and by appropriate inferences, the fact of a defendant’s recklessness or of this knowledge of falsity.’ (Goldwater v. Ginzburg (2d Cir. 1969) 414 F.2d 324, 342; Widener v. Pacific Gas & Electric Co. [(1977)]75 Cal.App.3d 415, 434[, disapproved on another point in McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn. 9].) A failure to investigate [see Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d 415, 435), anger and hostility toward the plaintiff [id., at p. 436), reliance upon sources known to be unreliable (Curtis Publishing Co. v. Butts [(1967)]388 U.S. 130, 156; Pep v. Newsweek, Inc. (S.D.N.Y. 1983) 553 F.Supp. 1000, 1002), or known to be biased against the plaintiff (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640; Burns v. McGraw-Hill Broadcasting Co., Inc. (Colo. 1983) 659 P.2d 1351, 1361-1362)—such factors may, in an appropriate case, indicate that the publisher himself had serious doubts regarding the truth of his publication. [¶] We emphasize that such evidence is relevant only to the extent that it reflects on the subjective attitude of the publisher. (St. Amant v. Thompson, supra, 390 U.S. 727, 732-733; Pep v. Newsweek, Inc., supra, 553 F.Supp. 1000, 1003; Velle Transcendental Research Ass’n v. Sanders (C.D.Cal. 1981) 518 F.Supp. 512, 518-519.) The failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy. (See St. Amant v. Thompson, supra, 390 U.S. 727, 733; Beckley Newspapers v. Hanks (1967) 389 U.S. 81, 84-85.) Similarly, mere proof of ill will on the part of the publisher may likewise be insufficient. (Gomes v. Fried (1982) 136 Cal.App.3d 924, 934-935.)” (Fn. omitted.)
Plaintiffs contend there is circumstantial evidence of actual malice in that: defendants failed to investigate and greatly exaggerated and sensationalized the facts as related to Ms. Uimonen when they described the events in question as “‘sex parties’”; Ms. Uimonen was a tabloid journalist; Iltalehti was a tabloid newspaper and Web site; and as a result of their tabloid status, they were motivated to sensationalize the statements related in the press conference at the Four Seasons Hotel in order to attract readers.
There is no evidence that would support an actual malice finding. All of the people Ms. Uimonen interviewed gave consistent accounts of the events at plaintiffs’ Bahamian property. No one offered any information tending to contradict the statements attributed to Mr. Stockwell, Ms. Alba, Ms. Scott, and Mr. Walker. The inference was clear from the reported statements that sexual activity was occurring at the Nygård Cay parties and events. There was nothing to indicate the allegations were false. There were no obvious reasons for defendants to doubt the accuracy of the information. (See Khawar v. Globe International Inc., supra, 19 Cal.4th at p. 276.) There was no evidence defendants deliberately decided not to acquire knowledge of facts that might show the claims were false. (Compare, e.g. Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1052-1053.) There was no evidence defendants knew the statements were false or entertained a serious doubt as to their truth.
Finally, plaintiffs contend they were excused from demonstrating that defendants acted with actual malice because they could not conduct discovery on that issue. Plaintiffs rely on a Ninth Circuit decision, Metabolife Intern., Inc. v. Wornick, supra, 264 F.3d at pages 845-846. In Metabolife Intern., Inc., the plaintiff, a drug manufacturer, sued a journalist, a television news station, the network affiliate’s parent corporation, and a medical school professor. The station aired a series of reports alleging the drug manufacturer’s founder had been convicted of methamphetamine manufacturing and challenged the safety of the plaintiff’s product, Metabolife 356. (Id. at p. 837.) The defendants filed a special motion to strike and the district court ultimately refused to permit pre-hearing discovery. (Id. at pp. 837-838.)
The Ninth Circuit panel held the district court abused its discretion in refusing to permit plaintiff to conduct discovery as permitted by the summary judgment provision applicable in federal litigation, rule 56(f) of the Federal Rules of Civil Procedure (28 U.S.C.). The Ninth Circuit reasoned that: section 425.16, subdivisions (f) and (g) are discovery limiting provisions; by contrast, rule 56(f) of the Federal Rules of Civil Procedure (28 U.S.C.), which applies to summary judgment motions, does not so limit discovery; under the rule enunciated in Walker v. Armco Steel Corp. (1980) 446 U.S. 740, 749-750, “[b]ecause the discovery-limiting aspects of § 425.16(f) and (g) collide with the discovery-allowing aspects of Rule 56, these aspects of subsections (f) and (g) cannot apply in federal court”; and thus the district court should have allowed the plaintiffs to pursue pre-special motion to strike discovery. (Metabolife Intern., Inc. v. Wornick, supra, 264 F.3d at p. 846, citing Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2d at p. 980.) The Ninth Circuit panel never held that section 425.16 guarantees a plaintiff in a defamation-based action the right to utilize a discovery method to secure disclosure of evidence of actual malice from the defense. Rather, the right to utilize discovery arose from rule 56(f) of the Federal Rules of Civil Procedure (28 U.S.C.). Needless to note, rule 56 of the Federal Rules of Civil Procedure (28 U.S.C.) does not apply in California state courts. There is no merit to plaintiffs’ arguments that the Ninth Circuit panel’s analysis in Metabolife Intern., Inc. excused them from their section 425.16, subdivision (b) duty to show their actual malice claim has minimal merit. (Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 291; Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
4. Discovery
Plaintiffs request if we find the burden of proof shifted and they failed to make their minimal merits showing, we instruct the trial court to allow them to conduct discovery as to the actual malice issue. Plaintiffs’ request is without merit. Plaintiffs never filed in the trial court a noticed motion for an order allowing, for good cause shown, specified discovery. (§ 425.16, subd. (g); Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶ 7:258.2, p. 7-106 (rev. #1, 2006).) The necessary requirements of a noticed discovery request after a special motion to strike is filed were detailed by our colleague, Presiding Justice Candace D. Cooper, in 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 593: “Decisions that have considered what constitutes such a showing of good cause have described it as a showing ‘that a defendant or witness possesses evidence needed by plaintiff to establish a prima facie case.’ (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 868.) The showing should include some explanation of ‘what additional facts [plaintiff] expects to uncover . . . .’ (Sipple, supra, 71 Cal.App.4th at p. 247; see also Nicosia v. De Rooy (N.D.Cal. 1999) 72 F.Supp.2d 1093, 1111.) Only in these circumstances is the discretion under section 425.16, subdivision (g) to be ‘liberally exercise[d].’ (Lafayette Morehouse,[Inc. v. Chronicle Publishing Co.], supra, 37 Cal.App.4th at p. 868.) Discovery may not be obtained merely to ‘test’ the opponent’s declarations. (Sipple [v. Foundation for Nat. Progress], supra, 71 Cal.App.4th at p. 247.)” No such motion was ever filed. Had such a noticed motion been filed, the result could have been different depending on the facts.
F. Attorney’s Fees And Costs
Section 425.16, subdivision (c) provides in part, “In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” The recoverable attorney’s fees and costs include those incurred: in the trial court in connection with the special motion to strike prior to filing the notice of appeal; on appeal; and in the trial court after issuance of the remittitur. (American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1104; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.) Attorney’s fees and costs are recoverable on remand pursuant to California Rules of Court, rule 3.1702. (American Humane Assn. v. Los Angeles Times Communications, supra, 92 Cal.App.4th at pp. 1102-1104; see Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) ¶:264, p. 7-110 (rev. #1, 2006).)
IV. DISPOSITION
The order denying the Code of Civil Procedure section 425.16 special motion to strike filed by defendants, Kustannusosakeyhtiö Iltalehti and Kirpi Uimonen, is reversed. On remand, the trial court is to enter an order granting defendants’ motion and striking the complaint filed by plaintiffs, Nygård, Inc., Nygård International Partnership, and Peter Nygård. Additionally, defendants are to recover their attorney’s fees and costs incurred in the trial court in connection with the special motion to strike prior to filing the notice of appeal, on appeal, and in the trial court after remittitur issuance.
I concur: KRIEGLER, J.
MOSK, J., Dissenting
I respectfully dissent.
This defamation action concerns printed accounts in a Finnish-language newspaper and on the newspaper’s Web site of private risqué behavior that reportedly occurred at a plaintiff’s residence in the Bahamas. The primary plaintiff is a women’s clothing designer who is purportedly well-known in Finland. The issues are whether under California’s anti-SLAPP statute (Code Civ. Proc., § 425.16) such reports—i.e., reports about private behavior at the home of a purported public figure—are deemed made “in a place open to the public or a public forum in connection with an issue of public interest,” as required by section 425.16, subdivision (e)(3), or “free speech in connection with a public issue or an issue of public interest,” as required by section 425.16, subdivision (e)(4). These issues have not been resolved by the courts of this state. As to the public-issue requirement, no California court has addressed the issue in this context, and two federal cases suggest that the anti-SLAPP statute does not apply. Furthermore, the authorities have split as to whether a newspaper is a “public forum” under the anti-SLAPP statute.
Statutory references are to the Code of Civil Procedure unless stated otherwise.
For purposes of brevity, I refer to the requirement that speech concern a “public issue or an issue of public interest” as the “public-issue requirement.”
Although the facts that a defamation plaintiff may be a celebrity and has generated some media attention might be relevant to whether speech can satisfy the public-issue requirement, it is the nature of the issue—not the identity of the person or the media attention the person might engender—that determines whether the public-issue requirement is satisfied. Further, the “public forum” requirement of section 425.16, subdivision (e)(3) is satisfied by a forum that permits the public exchange of viewpoints, not one that is merely a vehicle for the public dissemination of speech by a single speaker or writer, or that is subject to content-based editorial control.
It is important to recognize that we deal here with the scope of the anti-SLAPP statute—not the Constitutional protection for speech. This case deals with whether a defamation plaintiff should be prevented from pursuing a claim at the outset of a case by a summary proceeding. We should not interpret and apply the anti-SLAPP statute in such a way so as to unfairly deprive a party from exercising the right to maintain a civil action. As I discuss, the trial court correctly concluded that defendants and appellants Kustannusosakeyhtiö Iltalehti (Iltalehti) and Kirpi Uimonen (Uimonen) (collectively, defendants) failed to demonstrate that their alleged defamatory statements were protected by the anti-SLAPP statute.
A. The Anti-SLAPP Statute and the Record
“A SLAPP suit—a strategic lawsuit against public participation—seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
To apply the anti-SLAPP statute, courts engage in 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.’” (Taus v. Loftus (2007) 40 Cal.4th 683, 712, omission in original, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Defendants therefore have the burden to demonstrate that section 425.16 applies in this case. To do so, they must show that their alleged defamatory statements satisfy the public-issue requirement.
Defendants introduced little evidence relevant to whether the article satisfies the public-issue requirement. The record establishes that plaintiff Peter Nygård is a citizen of Finland and the founder of plaintiffs Nygård, Inc. and Nygård International Partnership. Based in Canada, Nygård manufactures and sells women’s clothing. In unverified complaints in prior lawsuits, Peter Nygård described himself as “a long-standing entertainment and fashion celebrity known throughout North America.” He touted as his public accomplishments his “world-famous annual Oscar party,” and his positions as “the Chairman of Canada’s largest women’ [sic] clothing and fashion manufacturing company, the owner of N Magazine and the founder of the internationally-known charity, The Nygård Endowment Fund.” There is no other evidence in the record—other than the article at issue—to substantiate Nygård’s characterizations of himself as a “celebrity” (let alone a “long-standing” celebrity “known throughout North America”), of his Oscar party as “world famous,” or of his charity as “internationally known.”
Plaintiffs have asserted in prior litigation that they are “indistinguishable from each other,” and their complaint in this case treats the three of them as a single entity for purposes of both identifying the subject of the defamatory statements and damages. Accordingly, for ease of reference, I refer to all three plaintiffs in the singular as “Nygård.”
Nygård owns a resort property in the Bahamas known as Nygård Cay. The property contains both corporate offices and a residence for Peter Nygård. According to a Nygård employee, Nygård Cay has been “recognized as one of the most beautiful and unique homes in the world by [the television shows] Lifestyles of the Rich & Famous, Victory Gardens, Oprah, Life of Luxury, and most recently HGTV’s World’s Most Extreme Homes.”
In early 2004, the cast and crew of the motion picture Into the Blue (MGM/Columbia Pictures 2005) were filming on location in the Bahamas. On more than one occasion during that period, Nygård hosted members of the film’s cast and crew at Nygård Cay, and invited them to Nygård’s “Sunday Beach Parties.” Nygård’s guests included the film’s director, John Stockwell, and three of its stars, Jessica Alba, Paul Walker and Ashley Scott. Stockwell declared that, during one of his visits to Nygård Cay in March 2004, he spent a day responding to media inquiries about the film.
Uimonen is a freelance journalist. In September 2005, over a year and a half after Nygård hosted the cast of Into the Blue at Nygård Cay, Uimonen was invited, along with other journalists, to participate in interview sessions with members of the film’s cast and crew at a hotel in Los Angeles. The interviews were held to promote the film prior to its theatrical release in the United States. The interviewees included Stockwell, Alba, Walker and Scott. Uimonen wrote an article in Finnish based on the interviews (the “article”), which was published in the September 24, 2005 issue of Iltalehti, a Finnish-language newspaper based in Helsinki, Finland. The article also was published online, in Finnish, in an abridged version. The record contains no other information about either the print or online versions of Iltalehti. There is no evidence regarding the extent of Iltalehti’s circulation; whether the print edition is published outside of Finland; Iltalehti’s audience; or what public issues concern Iltalehti’s readers.
The article, as translated from Finnish into English in the only certified translation in the record, stated that “Hollywood stars were shocked” by a “sex party at Nygård’s villa.” A statement attributed to Alba described Nygård’s Sunday Beach Parties as “perverse” and “wicked.” Alba was quoted as saying, “People were encouraged to behave in a crazy way. In the parties on Sundays there are young women that get undressed and may have sex in the Jacuzzi where anybody can see them. It was horrible.” Stockwell was quoted as describing Peter Nygård as a man “in his early sixties . . . who lives in his own never-never land in a tropical paradise. The place [Nygård Cay] is a lot of fun, but at the same time in unbelievably bad taste.” Scott described Nygård’s parties as “wild,” and said she “left when the local girls started coming.” Walker is quoted as saying that Nygård’s “parties were really crazy.” There is no evidence in the record—other than the existence of the article at issue—regarding whether or to what extent any of the people affiliated with Into the Bluewere celebrities in Finland when the article was published, or whether their characterizations of, and opinions about, the conduct of other people at private functions at Nygård Cay were of interest to the Finnish-reading public.
B. Celebrity Status Alone Is Not Sufficient to Satisfy the Public-Issue Requirement
Defendants argue that, because of Nygård’s celebrity status, any statement about Nygård satisfies the public-issue requirement. I do not agree with that reading of the statute. “While we are required to construe the statute broadly, we must also adhere to its express words and remain mindful of its purpose.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 864.)
Section 425.16 “does not provide a definition for ‘an issue of public interest,’ and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132) (Weinberg). “The definition of ‘public interest’ . . . has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a government entity” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479) (Damon), as well as “ongoing controvers[ies], dispute[s] or discussion[s]” involving particular “private group[s], organization[s] or communit[ies] . . . such that [the activity] warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme v. International Brotherhood of Electrical Workers, Local 45 (2003) 110 Cal.App.4th 107, 119 (Du Charme).)
Not all speech protected by the First Amendment falls within the scope of the public-issue requirement. “The Legislature intended this requirement to have a limiting effect on the types of conduct that come within” section 425.16, subdivisions (e)(3) and (e)(4). (Weinberg, supra, 110 Cal.App.4th at p. 1132; accord, Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 926 (Rivero); Paul v. Friedman, supra, 95 Cal.App.4th at p. 864, fn. 20.) Further, “mere publication . . . should not turn otherwise private information . . . into a matter of public interest.” (Du Charme, supra, 110 Cal.App.4th at p. 117; Rivero, supra, 105 Cal.App.4th at p. 926.)
The statutory language reflecting the Legislature’s intent supports this view. The Legislature stated that the purpose of the anti-SLAPP statute is to serve the “public interest” by encouraging “continued participation in matters of public significance . . . .” (§ 425.16, subd. (a).) Thus, an anti-SLAPP motion can be brought to strike “[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 or California Constitution in connection with a public issue . . . .” (§ 425.16, subd. (b)(1), italics added.) An act in furtherance of the right of free speech “in connection with a public issue” under section 425.16, subdivision (b)(1) includes “any written or oral statement or writing . . . in connection with an issue of public interest” (§ 425.16, subd.(e)(3), italics added), and “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.” (§ 425.16, subd. (e)(4), italics added).)
Thus, in enacting section 425.16, the Legislature was concerned with public participation in “matters of public significance” (subd. (a)), and sought to protect speech relating to “public issues” (subd. (b)(1)), which the Legislature defined to include speech “in connection with . . . an issue of public interest” (subd. (e)(3), (4)). (Equilon, supra, 29 Cal.4th at p. 66.) To qualify for protection under the anti-SLAPP statute, therefore, speech must concern something more than a matter of general interest to some portion of the public. (See Time, Inc. v. Firestone (1976) 424 U.S. 448, 453-454 [“public controversy” for First Amendment purposes does not equate to “controversies of interest to the public”].) It must relate to an “issue,” and the “issue” must have some “public significance.” (See Commonwealth Energy Corp. v. Investor Data Exchange (2003) 110 Cal.App.4th 26, 32 [“if [speech was] made or [activity] conducted apart from an official proceeding, then there is a public issue requirement”].) One authority has written, “Statements, writings or conduct not made or occurring in an official proceeding (or in connection with an issue under consideration in such a proceeding) are protected only if made in a public place and ‘in connection with an issue of public interest’ (CCP § 425.16(e)(3)). Other conduct in furtherance of the right of free speech is protected only if made ‘in connection with a public issue or an issue of public interest’ (CCP § 425.16(e)(4) (emphasis added)). [¶] Comment: Although § 425.16(e)(4) uses these terms disjunctively, there appears to be no substantive difference between them. [See Du Charme v. International Broth. Of Elec. Workers, Local 45 (2003) 110 CA4th 107, 118, 1 CR3d 501, 510—applying same standard to ‘the public issue/issue of public interest requirement of subdivisions (e)(3) and (4)’].” (Weil and Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2006) § 7:233, pp. 7-87 to 7-88.)
Prior judicial interpretations of the public-issue requirement support this understanding. Courts have recognized five principles to guide the determination whether speech concerns an “issue of public interest”: “(1) public interest does not equate with mere curiosity; (2) a matter of public interest should be a matter of concern to a substantial number of people, not to a relatively small, specific audience; (3) there should be some degree of closeness between the statements at issue and the asserted public interest; (4) the focus of the speaker’s conduct should be the public interest rather than an effort to ‘gather ammunition’ for a private controversy; and (5) those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.” (Olaes v. Nationwide Mutual Insurance Co. (2006)135 Cal.App.4th 1501, 1510-1511; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546-1547; Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133; see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 761-762 [“‘[whether] . . . speech addresses a matter of public concern must be determined by [the expression’s] content, form, and context . . . as revealed by the whole record.’ [Citation].” (plurality opinion of Powell, J.)]; Du Charme, supra, 110 Cal.App.4th at p. 117 [“judges and attorneys will, or should, know a public concern when they see it”], citing Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1122, fn. 9.)
Accordingly, just because a statement is about a public figure does not mean it necessarily satisfies the public-issue requirement. “That a celebrity might be a public figure for purposes of the First Amendment should not mean that all speech about that celebrity is necessarily a public issue or an issue of public interest for purposes of § 425.16(e).” (Rogers v. Home Shopping Network, Inc. (C.D. Cal. 1999) 57 F.Supp.2d 973, 985, fn. 7 [dictum]; accord, Condit v. National Enquirer, Inc. (E.D. Cal. 2002) 248 F.Supp.2d 945, 954.) As noted above, “‘public interest’ does not equate with mere curiosity.” (Weinberg, supra, 110 Cal.App.4th at p. 1132.) The Legislature’s stated intent in enacting section 425.16 was “to encourage participation in matters of public significance” (§ 425.16, subd. (a), italics added), not to encourage celebrity gossip. Subsection (e)(3) and (e)(4) therefore protect speech in connection with a public issue or an issue of public interest, not speech concerning personalities or people about whom the public might be curious. (See Time, Inc. v. Firestone, supra, 424 U.S. at pp. 453-454.) Accordingly, when deciding whether conduct is protected by section 425.16, subdivision (e), the court should focus on the nature of the issue, not the person, that is the subject of the relevant speech. (See Rogers v. Home Shopping Network, Inc., supra, 57 F.Supp.2d at p. 985, fn. 7 [dictum]; Condit v. National Enquirer, Inc., supra, 248 F.Supp.2d at p. 954.)
This is not to say that a person’s public-figure status is irrelevant in determining whether speech about that person satisfies the public-issue requirement. Speech concerning what would otherwise be private matters can become matters of public interest for purposes of the anti-SLAPP statute, if those matters bear a demonstrable relationship to the subject’s public persona or public activities. The decision in Sipple v. Foundation for National Progress (1999) 71 Cal.App.4th 226 (Sipple), exemplifies just such a relationship.
In Sipple, supra, 71 Cal.App.4th 226, plaintiff Donald Sipple was a “nationally known political consultant” who had produced campaign advertising for, among others, Governors George W. Bush, Pete Wilson and Jim Edgar, and United States Senators Orrin Hatch and Bob Dole. Sipple had been “prominently featured in newspaper articles and magazines as an image maker and media strategist.” (Id. at p. 230.) He had developed campaign themes for political clients that included “the prevention and punishment of domestic violence and other crimes against women.” (Ibid.)
Mother Jones magazine published an article about Sipple in 1997 that focused on a 1992 custody dispute between Sipple and his first wife, which was heard by a Missouri trial court. Among the witnesses on Sipple’s behalf was the then-sitting Chief Justice of the Missouri Supreme Court. (Sipple, supra, 71 Cal.App.4th at p. 231.) The Mother Jones article focused on testimony by Sipple’s first and second wives to the effect that Sipple had physically and verbally abused them. (Id. at p. 230.) Sipple sued Mother Jones for defamation and other torts; Mother Jones moved to strike the complaint pursuant to section 425.16. The trial court granted the motion to strike. (Id. at p. 231.)
The Court of Appeal affirmed, rejecting Sipple’s argument that “his treatment of his previous wives [was] not a public issue.” (Sipple, supra, 71 Cal.App.4th at p. 236.) The Mother Jones article addressed the issue of domestic violence, which was “an extremely important public issue.” (Id. at p. 238.) The focus on allegations of abuse against Sipple were “central to the article” because Sipple, “a top figure in national politics,” had “been interviewed by the press and profiled in the media scores of times,” and had “devised media strategy based on gender-based advertising against domestic violence for the gubernatorial races of Pete Wilson in California, George W. Bush in Texas and Jim Edgar in Illinois.” (Ibid.) Indeed, “the custody dispute occurred while appellant was running the media strategy for Bob Dole’s 1996 presidential campaign based on morality issues.” (Ibid.)
Further, the Mother Jones article also addressed the “theme that rich and powerful men may use the legal system to their advantage over women who may have been abused by them.” (Sipple, supra, 71 Cal.App.4th at p. 239.) This was exemplified in the article by Sipple’s ability to use his political influence to persuade the Chief Justice of the Missouri Supreme Court to testify on his behalf, an act that was “criticized as highly unusual and posing a potential conflict of interest for the trial judge.” (Ibid.) Although custody proceedings are a private matter, in Sipple’s case “the issues of spousal abuse generated in the custody proceedings [we]re of public interest when the person accused of the abuse is a nationally known figure identified with morality campaigns for national leaders and candidates for the office of President of the United States.” (Ibid., italics added.) Accordingly, the fact that Sipple was “nationally known” was not itself sufficient to transform his private conduct into an issue of public interest. Rather, it was by demonstrating the relationship between Sipple’s public political activities and his private custody dispute—specifically, his public hypocrisy regarding domestic violence—that the Mother Jones article satisfied the public-issue requirement. (Id. at pp. 239-240.)
Defendants rely on the oft-repeated statement in Rivero, supra, 105 Cal.App.4th at p. 924, that courts have found issues of “public interest” in cases in which “the subject statements . . . concerned a person or entity in the public eye.” Yet, none of the cases relied upon by Rivero to support that statement holds that a statement concerning a person “in the public eye” automatically concerns “an issue of public interest.”
Rivero itself is inapposite. Rivero concerned a defamation action arising from a workplace dispute involving private-figure custodians employed by the University of California. The Rivero court held that the alleged defamatory statements did not concern issues of public interest. (Rivero, supra, 105 Cal.App.4th at pp. 924-926.)
The court in Rivero, supra, 105 Cal.App.4th at p. 921, first cites Sipple, supra, 71 Cal.App.4th 226, which is discussed in detail above. As noted, in Sipple, the Mother Jones article concerned issues related to Sipple’s notoriety as a political advertising consultant. Sipple’s notoriety and the issues discussed in the Mother Jones article thus combined to create an issue of public interest. (Id. at p. 239.)
Rivero, supra, 105 Cal.App.4th at p. 922, next cites Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 (Wollersheim), overruled on another ground in Equilon, supra, 29 Cal.4th at page 68, fn. 5. The Wollersheim court stated “that the Church [of Scientology] is a matter of public interest, as evidenced by media coverage and the extent of the Church’s membership and assets.” (Wollersheim, supra, 42 Cal.App.4th at p. 651.) That language is dicta, however. Wollersheim holds that the defendant’s conduct was protected by section 425.16 because it arose from his petition rights under subsections (e)(1) or (e)(2), neither of which includes a public-issue requirement. (Id. at pp. 647-650; Briggs v. Eden Council for Hope and Opportunity, supra, 19 Cal.4th at p. 1123.) Further, read in context, the Wollersheim court’s reference to “media coverage” does not refer to mere celebrity or generalized media coverage on unrelated issues. Rather, it refers to media coverage generated by the particular controversy in Wollersheim. The underlying lawsuit in that case was a collateral attack on a judgment against the Church in a prior case brought by Wollersheim that involved the Church’s controversial practices of “auditing,” “disconnect” and “fair game.” (See Wollersheim v. Church of Scientology (1989) 212 Cal.App.3d 872, judg. vacated and cause remanded (1991) 499 U.S. 914.) Wollersheim’s prior suit became (and, to a lesser extent, remains) the subject of widespread media attention. In addition, according to the court in Wollersheim, the case was a paradigmatic SLAPP suit, representing the latest in a long series of oppressive litigation tactics through which the well-financed Church sought to “chill” Wollersheim’s right of petition. (See Wollersheim, supra, 42 Cal.App.4th at pp. 636-639.) The Court of Appeal thus observed, “Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. Examples are product liability suits, real estate or investment scams, etc. [Citation.] The record reflects the fact that the Church is a matter of public interest, as evidenced by media coverage and the extent of the Church’s membership and assets.” (Id. at pp. 650-651.)
See, e.g., Chambers, Courts Wrestle with Claims of Church Fraud, N.Y. Times (Apr. 7, 1986); Chambers, Suit Challenges Tactics of Church, N.Y. Times (Apr. 27, 1986); Around the Nation: Two Charges Dismissed in Scientology Suit, N.Y. Times (May 14, 1986); Around the Nation: Jury Awards $30 Million to Former Scientologist, N.Y. Times (July 23, 1986); Around the Nation: Verdict Against Church of Scientology is Upheld, N.Y. Times (Sept. 19, 1986); Supreme Court Roundup: Suit On Evacuation Of Japanese-Americans Is Called Too Late, N.Y. Times (April 21, 1987) [reporting that U.S. Supreme Court “refused to excuse the Church of Scientology of California from posting a full appeal bond”]; Greenhouse, Issue of Damages is Not Settled, Justices Indicate, N.Y. Times (Mar. 19, 1991) [U.S. Supreme Court “ordered the California courts to reconsider this award as well a $2 million punitive damage award against the Church of Scientology”]; Brooke, Scientologists Lose a Battle on the Internet, N.Y. Times (Sept. 14, 1995); National Briefing: West: California: Scientology Plaintiff Wins $8.6 Million, N.Y. Times (May 14, 2002); Grace, 25 Years Later, a High-Profile Superior Court Case Is Still on the Active List, Metropolitan News-Enterprise (Oct. 28, 2005) at p. 7.
Finally, the court in Rivero, supra, 105 Cal.App.4th at pp. 924, cites Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798 (Seelig). Seelig, however, did not involve a celebrity. In Seelig, the plaintiff was a woman who, for the “personal experience,” made a brief and unsuccessful appearance as a contestant on the reality-television show, Who Wants to Marry a Millionaire. (Id. at 801-802.) The television show, as the Court of Appeal noted, “generated considerable debate within the media on what its advent signified about the condition of American society,” including concern focused on “the sort of person willing to meet and marry a complete stranger on national television in exchange for the notoriety and financial rewards associated with the Show and the presumed millionaire lifestyle to be furnished by the groom.” (Id. at pp. 807-808.) The plaintiff refused to participate in a radio program in which the hosts intended to ask her why she wanted to participate in the television show. (Id. at 802-803.) The hosts of the radio program and their producer ridiculed the plaintiff, on the air, for refusing to defend her participation in the television show, referring to her as a “local loser,” a “chicken butt” and a “big skank.” (Id. at pp. 802-805.) The Court of Appeal held that, because of the public debate generated by Who Wants to Marry a Millionaire, the radio program concerned an issue of public interest, and that, “[b]y having chosen to participate as a contestant in the Show, plaintiff voluntarily subjected herself to inevitable scrutiny and potential ridicule by the public and the media.” (Id. at p. 808.) Accordingly, neither Rivero nor the cases it relies upon hold that celebrity alone is sufficient to satisfy the public-issue requirement.
Furthermore, the fact that speech is disseminated by the media does not necessarily mean that it concerns an “issue of public interest” under the anti-SLAPP statute. As noted above, “mere publication . . . should not turn otherwise private information . . . into a matter of public interest” for purposes of section 425.16. (Du Charme, supra, 110 Cal.App.4th at p. 117; Rivero, supra, 105 Cal.App.4th at p. 926.) Rather, as our Supreme Court recognized in another context, “‘[t]he contents of [a] publication or broadcast are [constitutionally] protected only if they have “some substantial relevance to a matter of legitimate public interest.”’” (Taus v. Loftus, supra, 40 Cal.4th at p. 718, italics added, quoting Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 223; see also Time, Inc. v. Firestone, supra, 424 U.S. at pp. 453-454 [wealthy couple’s divorce case, described as a “cause célèbre,” was not a “public controversy,” but merely a controversy “of interest to the public”].) This requires a “‘logical relationship or nexus . . . between the events or activities that brought the person into the public eye and the particular facts disclosed. . . .’” (Taus v. Loftus, supra, 40 Cal.4th at p. 718.) Speech widely disseminated by the media thus might concern a matter of interest to the public, but that alone does not mean that it satisfies the public-issue requirement.
C. Defendants Failed to Establish that the Alleged Defamatory Statements Satisfied the Public-Issue Requirement
To determine whether the defendants’ conduct is protected by section 425.16, “we analyze whether the defendant’s act underlying the plaintiff’s cause of action itself was an act in furtherance of the right of petition or free speech. [Citation.] Accordingly, we focus on the specific nature of the challenged protected conduct, rather than generalities that might be abstracted from it. [Citation.] The ‘principal thrust or gravamen’ of the claim determines whether section 425.16 applies.” (Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279, italics omitted, quoting Martinez v. Metabolife International, Inc. (2003) 113 Cal.App.4th 181, 188.)
1. Defendants’ speech is not related to the reasons for Nygård’s purported celebrity or Nygård’s public activities.
In their opening brief, defendants identify no particular public issue or controversy to support the application of section 425.16, subdivision (e)(3) or (e)(4). For example, defendants do not contend, and there is no evidence, that any of the Nygård entities are publicly held, or that their alleged defamatory statements relate to any business or charitable activity of Nygård that is of public interest or concern. Nor do defendants contend that their statements relate to any public hypocrisy or any particular public controversy, dispute or discussion in which Nygård participates. Indeed, defendants do not even contend (and have adduced no evidence) that Peter Nygård himself participated in or witnessed the alleged public sexual conduct. Instead, defendants rely solely on the celebrity of Nygård, Nygård Cay, and Nygård’s guests to support the application of section 425.16.
In their reply brief, defendants assert that their statements concern issues of public morality. I address this contention in Part C.2, below.
See Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 525 [e-mail concerning possible financial collapse of owner of four hospitals in the same county addressed issue of public interest]; Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898-900 [Web site disclosing unethical business practices of viatical settlements brokerage addressed issue of public interest]; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1007-1008 [disparaging comments in internet chat room about public company concerned issue of public interest when intended for current and potential shareholders]; see also Troy Group, Inc. v. Tilson (C.D. Cal. 2005) 364 F.Supp.2d 1149, 1153-1154 [e-mail concerning company with 200 outside shareholders concerned issue of public interest when company repeatedly used press releases to promote the company, its stock and “going-private” transaction, resulting in detailed story in The Wall Street Journal].
See Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 23-24 [Web site on “nightmare” results of plastic surgery performed by plaintiff surgeon concerned issue of public interest when, among other things, plaintiff was prominent plastic surgeon who had written articles, appeared on television and advertised in relevant geographic area]; Ingels v. Westwood One Broadcasting Services, Inc. (2005) 129 Cal.App.4th 1050, 1062-1064 [call-in radio show concerned public issue when plaintiff voluntarily called in and was denied opportunity to state his position on air because of his age]; Seelig, supra, 97 Cal.App.4th at pp. 807-808 [plaintiff’s participation in reality TV show an issue of public interest when TV show had generated “considerable debate within the media on what its advent signified about the condition of American society”]; Sipple, supra, 71 Cal.App.4th at pp. 236-240 [magazine article relating to plaintiff’s domestic abuse of his wives concerned issue of public interest when plaintiff was nationally known political consultant who developed political campaigns based on themes of prevention and punishment of domestic violence].
Specifically, defendants argue that the article concerned “persons and entities in the public eye as well as issues of widespread public interest” because Peter Nygård is a self-styled “internationally prominent public figure” in whom the public “has a keen interest.” Nygård hosted the “well-know[n] celebrities” from Into the Blue at Nygård Cay “for public relations purposes.” Furthermore, defendants assert, the public is also interested in the facility at Nygård Cay, which has been featured on several television programs. Defendants point out that the article is based on statements made by celebrities to Uimonen at a publicity event held to promote Into the Blue shortly before its theatrical release in the United States.
The article’s statements about sexual conduct at Nygård’s private Sunday Beach Parties bear no demonstrable relationship to Nygård’s purported celebrity. Those statements do not relate to Nygård’s commercial activities in the women’s apparel industry or as the publisher of N Magazine,nor do they relate to Nygård’s charitable activities with The Nygård Endowment Fund. The alleged defamatory statements did not concern Nygård Cay itself; so its notoriety is irrelevant. The mere fact that a private event occurred at Nygård Cay does not transform that event to an “issue of public interest.” The article’s allegedly defamatory statements, therefore, are not protected activity under section 425.16, subdivision (e)(3) or (e)(4).
That celebrity biographies suggest that the public has an interest in the sexual lifestyles of publishers and actors is not determinative. Nygård achieved whatever notoriety he has as neither a publisher nor an actor, and the article in question was not a biography. Further, the sources cited do not illuminate what issues are of interest to Iltalehti’s readers in Finland or in the Finnish-speaking community abroad.
2. The record does not support defendants’ contention that the article concerns issues of public morality.
In their reply brief, defendants assert for the first time that the article concerns public interest in the “established notions of sexual morality and public decency” challenged by Nygård’s “ongoing adventure in alternative lifestyles.” The record does not support that contention.
The general rule is that an appellant forfeits contentions not raised in the opening brief. (Roehl v. Ritchie (2007) 147 Cal.App.4th 338, 352; Baptist v. Robinson (2006) 143 Cal.App.4th 151, 171.)
The article does not mention or allude to any controversy relating to public morality. The context and content of the references to public sexual activity at Nygård’s Sunday Beach Parties demonstrate that the article’s intent was to titillate and entice potential readers, not to contribute to a public debate about public morality or to suggest or evaluate any proposed restrictions on such conduct. There is no evidence that the potential readership of the article had a particular interest in any issue of public morality, or that the article was promoted to readers with any such interest. There is no evidence that Nygård publicly promotes or commercializes what defendants refer to as “alternative lifestyles” or has otherwise become embroiled in any public debate or controversy regarding public morality in the United States, the Bahamas or Finland. Defendants’ attempt to analogize Nygård and Nygård Cay to Hugh Hefner and the Playboy Mansion thus fails. Accordingly, the notion that the article contributed to any public debate about morality that might be ongoing in Finnish-speaking communities seems, at best, tenuous. (See Gilbert v. Sykes, supra, 147 Cal.App.4th 13, 23-24 [Web site about personal experience with plastic surgery addressed issue of public interest when it “contributed toward the public debate”].)
The only part of the article that might reasonably be construed to comment upon issues of public morality is a statement of personal opinion attributed to Jessica Alba, which characterizes the public sexual activity—as quoted by Uimonen, and translated from English to Finnish and back to English—as “horrible” and “most unpleasant.” There is no evidence, however, that anyone in the public (let alone anyone in the Finnish-speaking community) has any particular interest in Alba’s personal opinions on issues of public morality.
Defendants also argue that the activities at Nygård Cay concerned an issue of public interest because Nygård hosted the Into the Blue cast and crew “for public relations purposes.” The declaration defendants rely upon—which is the declaration of a Nygård employee originally submitted in connection with Nygård’s motion to quash service of the summons, not a declaration by a defense witness in support of defendants’ anti-SLAPP motion—states that Nygård hosted the “on-location movie filming in 2005 described in the Ihltalehti [sic] article . . . for public relations purposes.” The filming of Into the Blue, however, occurred in early 2004. It is therefore unclear whether the declaration refers to the filming of Into the Blue or some other film, or whether “the Ihltalethi [sic] article” referenced is the article by Uimonen at issue in this case. In any event, the declaration states that the “on-location filming” was hosted “for public relations purposes” (italics added). It does not state that Nygård hosted the Sunday Beach Parties for public relations purposes. The events hosted at Nygård Cay were referred to by a Nygård employee as “corporate events”; there is no evidence that either the media or the general public were invited to those events, or that the events were broadcast or otherwise disseminated to the public. There is no evidence that Uimonen herself (or any other journalist) was invited to or attended any of the Sunday Beach Parties. The interviews on which Uimonen based the article had nothing to do with the public relations activities of Nygård. Those interviews were conducted in Los Angeles, in connection with pre-release publicity for Into the Blue. There is no evidence that Nygård had anything to do with the financing, production, distribution, promotion or exhibition of the film. The record therefore does not support defendants’ contention.
Nothing submitted by defendants transforms the alleged sexual conduct by other persons at Nygård Cay into a “public issue” or “issue of public interest” within the meaning section 425.16, subdivision (e)(3) or (e)(4).
3. Defendants’ have failed to establish that plaintiffs are “public figures” such that all speech concerning plaintiffs concerns an “issue of public interest.”
Even if all speech concerning a “public figure” qualifies as “an issue of public interest” under the anti-SLAPP statute—a proposition I do not accept—defendants failed to establish that the plaintiffs in this case, including the Nygård corporate entities, are public figures for any relevant purpose.
Cf. Dworkin v. Hustler Magazine, Inc. (9th Cir. 1989) 867 F.2d 1188, 1197 [opining that all speech concerning an “all-purpose” public figure is a matter of “public concern” for purposes of the First Amendment; not decided under the anti-SLAPP statute] [dictum].
First Amendment jurisprudence recognizes two types of public figures: “In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions.” (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351, italics added; accord, Khawar v. Globe International, Inc. (1998) 19 Cal.4th 254, 263; see generally, 2 Smolla, Smolla and Nimmer on Freedom of Speech (1996) § 23.4 at pp. 23-28 to 23-82 (rel. 15 4/2007).) I refer to the first type of public figures as an “all-purpose public figure”; I refer to the second as a “limited-purpose public figure.” (See generally 1 Smolla, The Law of Defamation (2d ed. 1997) § 2:15 at pp. 2-24 to 2-25 (rel. 14 11/2006).)
The record falls short of establishing that Nygård is an all-purpose public figure. “Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.” (Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 352.) “[T]his status is reserved for those ‘larger than life’ megacelebrities, many of whom are entertainment or sports figures, that bring color to the American landscape.” (1 Smolla, The Law of Defamation, supra, § 2:80 at p. 2-102; see Carafano v. Metrosplash.com, Inc. (C.D. Cal. 2002) 207 F.Supp.2d 1055, 1070-1071 [actress formerly in Star Trek series was all-purpose public figure where record established extensive history of appearances on television, in motion pictures and advertising; numerous features in print publications; and live appearances at Star Trek conventions]; Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 27, fn. 9 [Michael Jackson was public figure in defamation action]; Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 423 [fictionalized account of Clint Eastwood’s romantic involvement with other celebrities a matter of “public concern” for claim of commercial misappropriation of name and likeness]; Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1008 [accepting “premise” that Carol Burnett was public figure for purposes of defamation claim arising from story claiming she engaged in disruptive behavior in a restaurant]; see also Barry v. Time, Inc. (N.D. Cal. 1984) 584 F.Supp. 1110, 1115 [basketball coach at University of San Francisco not an all-purpose public figure].)
The only evidence that Nygård has achieved notoriety are Nygård’s own self-aggrandizing conclusions, stated as allegations in unverified complaints in prior litigation. Those statements are not corroborated by the evidence. Although Nygård describes himself as an “entertainment and fashion celebrity,” defendants presented no evidence that Nygård has achieved notoriety as an entertainer or in any other capacity in the entertainment industry, except as the host of an Oscar party. Defendants presented no evidence that Nygård has been the subject of any press coverage, in any medium, on any subject. A Nygård employee stated that Nygård Cay has achieved limited notoriety as a residential curiosity, but there is no evidence that Nygård participated or featured in any of the television shows filmed at Nygård Cay. The record thus does not contain the “clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society” necessary to establish that Nygård is an all-purpose public figure. (Gertz v. Robert Welch, Inc., supra, 418 U.S. at p. 352.)
At most, therefore, Nygård might be a limited-purpose public figure. A limited-purpose public figure, however, is precisely that: a public figure “to an extent defined by ‘the nature and extent of [his] participation in the particular controversy giving rise to the defamation.’” (Dworkin v. Hustler Magazine, Inc. (9th Cir. 1989) 867 F.2d 1188, 1197.) As noted above, there is no evidence that the allegedly defamatory statements relate to any public controversy, dispute or discussion in which Nygård is a participant. Accordingly, the record does not support defendants’ contention that Nygård is a public figure for any relevant purpose. I would therefore affirm the trial court’s order denying defendants’ special motion to strike under the anti-SLAPP statute.
The position that the evidentiary objections are subject to an abuse of discretion standard of review is consistent with both the weight of authority and prior anti-SLAPP cases decided by this Division. (See, e.g., Morrow v. Los Angeles Unified School District (2007) 149 Cal.App.4th 1424, 1444; but see Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694 [recognizing split of authority on standard of review of evidentiary rulings in summary-judgment context]; City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 1288-1289 [review of all issues on summary judgment de novo except where abuse-of-discretion standard required by statute]; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1020 [dis. opn. of Johnson, J.] [“In our de novo review of the summary judgment we cannot properly ignore evidence appellant tendered to the trial court unless we conclude it was properly excluded by the trial court”]; Ferrell v. River City Roofing, Inc. (Miss. 2005) 912 So.2d 448, 451 [applying de novo review to evidentiary rulings on appeal from summary judgment]; Folsom v. Burger King (1998) 135 Wash.2d 658, 663 [same].) I have authored an opinion in the summary-judgment context applying an abuse-of-discretion standard. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1168-1169.) Arguably, an evidentiary ruling that is contrary to law is an abuse of discretion. It is unlikely that in summary judgment or anti-SLAPP proceedings, a ruling based on discretion, such as one admitting or excluding evidence under Evidence Code section 352, will occur.
D. The Term “Public Forum” in Section 425.16, Subdivision (e)(3) Does Not Encompass All Newspapers
The public-forum provision of section 425.16, subdivision (e)(3) does not apply here. First, the premise that Iltalehti’s Web site and newspaper are “accessible” to the public is not supported by the record. The record is silent regarding whether the Web site is freely accessible or whether access is restricted in some manner. (See, e.g., Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 852-853 [“Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a commercial provider”].) Similarly, the record is devoid of any specific information regarding how, where or to whom the print edition of Iltalehti is distributed. If public accessibility is a material fact, then defendants had the burden to prove it by a preponderance of the evidence. They failed to do so.
Second, the mere fact that a newspaper is publicly accessible is not sufficient to make it a public forum for purposes of section 425.16, subdivision (e)(3). The term “public forum” was not used for the first time in the anti-SLAPP statute. Rather, it is a term of art in First Amendment jurisprudence. “[W]hen, in a statute, the Legislature employs a word or phrase that has a well-defined and judicially established meaning, then absent a clear indication of legislative intent to the contrary, that is the meaning which must be given to the word or phrase.” (Weinberg, supra, 110 Cal.App.4th at 1131, fn. 4, citing People v. Harrison (1989) 48 Cal.3d 321, 329.) The notion that a statement made in a “publicly accessible” medium is necessarily made in a “public forum” essentially eliminates from subdivision (e)(3) the requirement of a “public forum.” All public statements, by definition, are “publicly accessible.” But this does not mean that all public statements are made in a public forum. (Cornelius v. NAACP Legal Defense and Educational Fund Inc. (1985) 473 U.S. 788, 803 [“Not every instrumentality used for communication . . . is a” public forum].) For example, a novel written by a single author, published by a private, commercial publisher and publicly available for sale through private, commercial bookstores, is not a “public forum” merely because it is “publicly accessible.” The book might be public, but it is not a forum.
The California Supreme Court’s holding in Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41 fn. 5, appears to foreclose the argument that Web sites are not public forums for purposes of section 425.16. Barrett, however, does not address whether newspapers are public forums, and the reasoning that the “Web, as a whole, can be analogized to a public bulletin board” does not necessarily extend to print newspapers. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 896-897, cited in Barrett, supra, at p. 41, fn. 5.) Generally, Web sites are accessible to anyone with access to the internet, as discussed supra, and the ready availability of free Web hosting services effectively makes it possible for anyone interested in doing so to create his or her own Web site. The same cannot be said of print newspapers.
The key distinguishing feature of a forum is not that it provides a venue (real or virtual) where speech may be disseminated, but rather that it provides a venue where information may be exchanged. Black’s Law Dictionary defines a “public forum,” as used in the First Amendment context, as “[a] public place where people traditionally gather to express ideas and exchange views.” (Black’s Law Dictionary (8th ed. 2004) p. 1266, italics added; see also Webster’s Third New International Dictionary (2002) p. 896 [defining “forum” as, inter alia, “a medium of open discussion”].) Consistent with this definition, the courts have held that “[m]eans of communication where access is selective, such as most newspapers, newsletters, and other media outlets, are not public forums.” (Weinberg, supra, 110 Cal.App.4th at p. 1130 [construing section 425.16, subd. (e)(3)]; accord, Arkansas Educ. TV v. Forbes (1998) 523 U.S. 666, 678-680 [distinguishing “between ‘general access,’ [citation], which indicates the property is a designated public forum, and ‘selective access,’ [citation], which indicates the property is a nonpublic forum”]; Hazelwood School Dist. v. Kuhlmeier (1988) 484 U.S. 260, 268-269 [school newspaper not a public forum when school authorities retained editorial control over content]; Make the Road by Walking, Inc. v. Turner (2d Cir. 2004) 378 F.3d 133, 144 [“Of course, the fact that ‘“members of the public are permitted freely to visit’” a forum . . . does not abrogate its nonpublic status if the visitors are not permitted to express themselves freely in that forum. [Citation.]”]; Goulart v. Meadows (4th Cir. 2003) 345 F.3d 239, 250 [hallmark of nonpublic forum is “‘selective, permission-only access’”].)
Thus, the court in Weinberg, supra, 110 Cal.App.4th at p. 1131 & fn. 4, stated, “a private selective-access newsletter is the very antithesis of a public forum. While it might be shown in a particular case that a newsletter is sufficiently open to general public access as to come within section 425.16, a private selective-access newsletter cannot be found to be a public forum without such a showing.” The same is true of print newspapers generally. “Newspaper editors or publishers customarily retain the final authority on what their newspapers will publish in letters to the editor, editorial pages, and even news articles, resulting at best in a controlled forum not an uninhibited ‘public forum.’” (Lafeyette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863, fn. 5 [dictum]; accord, Condit v. National Enquirer, Inc., supra, 248 F.Supp.2d at p. 953 [newspaper not a public forum for purposes of section 425.16].) Accordingly, a newspaper should qualify as a public forum for purposes of section 425.16, subdivision (e)(3) only if it permits at least some access to members of the public to voice their opinions. (But cf. Damon, supra, 85 Cal.App.4th at p. 472 [private, selective-access newsletter constitutes public forum].) There is no evidence in this case that the print edition of Iltahleti permits any public access at all. Defendants have therefore failed to establish that the newspaper is a public forum for purposes of section 425.16.
For the reasons stated above, I would affirm the trial court’s ruling that defendants failed to establish the applicability of the anti-SLAPP statute. This, of course, does not suggest that plaintiffs would ultimately overcome a summary judgment motion or prevail at trial. It just means that plaintiffs should not be prevented by the anti-SLAPP statute from proceeding with a case at such an early stage.