VOGEL v. FELICENo. H024448.
26 Cal.Rptr.3d 350 (2005)
127 Cal.App.4th 1006
John VOGEL et al., Plaintiffs and Respondents,
Joseph FELICE, Defendant and Appellant.
Joseph FELICE, Defendant and Appellant.
Court of Appeals of California, Sixth District.
March 24, 2005.
Robinson & Wood, Jesse F. Ruiz, Ann A. Nguyen, for Defendant and Appellant Joseph Felice.
Leslie Shearer, William C. Dresser, for Plaintiffs and Respondents John Vogel et al.
In this action, two candidates for public office and their wives seek damages for libel and other torts based on statements posted on a public Web site. Defendant, who hosted the Web site and apparently authored the offending statements, brought a special motion to strike the complaint under the anti-SLAPP (strategic lawsuit against public participation) statute, Code of Civil Procedure section 425.16 (section 425.16 or the Act). The trial court denied the motion, apparently finding that the challenged statements could be shown to have exceeded whatever privileges might be afforded under California law and the federal Constitution. We have concluded that this was error. Plaintiffs' claims fall squarely within the Act, which therefore required plaintiffs to show that they could prevail on the merits. They failed to carry this burden. We will therefore reverse with instructions to grant the special motion to strike.
In September 2001 plaintiffs John Vogel and Paul Grannis filed a complaint charging defendant Joseph Felice with libel, false light invasion of privacy, intentional and negligent infliction of emotional distress, and negligent damage to reputation.
Defendant brought a special motion to strike under section 425.16, asserting that at the time of the statements described in the complaint, plaintiffs were both candidates for local public office. In support of the motion, defendant filed a declaration asserting, among other things, that by virtue of their political candidacies, plaintiffs were public figures during the period of the Web site's operation. Defendant declared that plaintiff Vogel himself had a Web site during that period, that he headed a local organization called Advocates for Quality Home Construction, and that he "appeared in more than 100 newspaper articles and on Fox and NBC news." Defendant further averred: "At the time the subject websites were in operation, I believed there was substantial truth to the contention that Paul Grannis was `bankrupt' as I knew that [he] had recently filed for bankruptcy and been [sic] provided with court documents which confirmed the filing of a petition for bankruptcy. [¶] ... At the time the subject websites were in operation, I believed that there was substantial truth to the contention that Plaintiff John Vogel was delinquent or had been delinquent in his child support payments and had been provided with court documents which confirmed that proceedings had been brought to collect on unpaid child support obligations." Attached to the special motion to strike was an apparent copy of a chapter 7 bankruptcy petition filed by Paul and Robyn Grannis in September 1996, in the United States Bankruptcy Court for the Northern District of California. Defendant also requested judicial notice of pleadings and court records from child support proceedings concerning plaintiff Vogel in Schuylkill County, Pennsylvania, and Santa Clara County, California. Apparent copies of these materials indicated that in 1984, the Pennsylvania court entered an order requiring plaintiff Vogel to make payments of $30 per week toward the support of three minor children, plus "an additional $10.00 per week for arrearage." In 1987 the children's mother, Barbara Vogel, brought a complaint for support in that court alleging that she was raising the three children on income of $6,000 per year, that defendant was residing in Santa Clara County, and that he had "refused and neglected to provide reasonable support for [her] and the other dependents...." An accompanying statement asserted "arrearages" of $4,050 as of dated May 18, 1987, and a worksheet indicated that Vogel had paid no part of his support obligations to that time. In September 1990, plaintiff Vogel filed a declaration in the Santa Clara County Superior Court, asserting that he was a full-time student with no income or assets and with household expenses exceeding his then wife's income. On December 9, 1990, the Santa Clara Superior Court issued a bench warrant for Vogel's arrest. In April 1991, the court entered a stipulated order requiring him to pay monthly sums of $130 for child support and $45 toward an arrearage of $10,650 accrued from November 1984 to April 1991.
In opposition to the special motion to strike, plaintiffs conceded having "r[u]n for an office in Hollister and lost." Their opposition memorandum essentially reiterated the allegations of the complaint. In a supporting declaration, plaintiff Vogel averred that the Web site "contained false
Plaintiff Grannis similarly declared: "Defendant's website contained false and offensive statements about me including, `Paul Grannis—Bankrupt, Drunk, & Chewin tobaccy.' This statement is false and highly offensive in that I am not an alcoholic or chew tobacco. [¶] ... The statement `Paul Grannis—Bankrupt, Drunk, & Chewin tobaccy' served as a link [which] when clicked on, would lead the viewer to another webpage with the address of www.olddrunk.com. This patent association of being a drunk was highly offensive. [¶] ... Defendant's website also had a list entitled `Top Ten Dumb Asses' in which I was listed as number 2. My name served as a link to a website with the address of www.bankrupta[* *]hole.com. [¶] ... Defendant's websites also contained emails and bulletin messages containing statements that I bankrupted many businesses throughout California. These statements were also false. [¶] ... The entire content of the websites were [sic] false as it pertained to me and highly offensive."
Also accompanying the opposition were (1) a declaration by Brian Conroy stating that he was ranked fifth on the list of "Top Ten Dumb Asses" and that his name was linked to a Web site with the address <http:www.idiot.com> and (2) a declaration by Richard Scagliotti stating that he was ranked seventh on the list and was linked to the address <http:www.old buttman.com>. Each of these declarants stated that his depiction on the site was highly offensive, and that having his name linked "to a sophomoric website was also offensive and is not connected to a public issue."
Defendant objected to plaintiffs' supporting exhibits on a variety of grounds including hearsay, lack of foundation (i.e., authenticity), and relevance. Plaintiffs in turn filed objections on the eve of the hearing to defendant's own exhibits on grounds including relevance, hearsay, and excessive prejudicial potential.
The trial court heard the special motion to strike on February 5, 2002. The court sustained defendant's objections to all of plaintiffs' exhibits, as well as to the declarations of Conroy and Scagliotti. The court sustained plaintiffs' objections to all of defendant's exhibits except the bankruptcy petition filed by plaintiff Grannis and the vote totals offered to prove that plaintiff Vogel was a candidate for public office. The court then ruled that it was "going to deny the motion to dismiss at this point in time. I believe that the communication exceeded what would be—for purposes of pleading and at this stage of the proceeding, I believe that the evidence indicates that the communications exceeded what would be reasonably considered relevant as between interested parties." The court opined that the case of plaintiff
On April 9, 2002, the court signed and filed a formal order denying the motion to strike and allowing defendant "thirty days from Notice of this Order to respond to Plaintiffs' complaint." Plaintiffs' counsel served notice of entry of the order on May 1, 2002. Defendant filed his notice of appeal on May 6, 2002. The order is appealable (§ 425.16, subd. (j)), and the appeal is timely (Cal. Rules of Court, rule 2(a), (f)).
I. Applicability of Statute
Section 425.16 is intended to bring about an early test of the merits in actions tending to chill citizen participation in public affairs. (See § 425.16, subd. (a) [declaration of legislative purpose].) The Legislature has directed that the statute "shall be construed broadly" in order "to encourage continued participation in matters of public significance." (Ibid.) The statute entitles a defendant to bring a "special motion to strike" (ibid.) any cause of action "arising from any act of [the defendant] in furtherance of [his or her] right of petition or free speech under the United States or California Constitution in connection with a public issue ... unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim" (§ 425.16, subd. (b)(1)). The statute further 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." (§ 425.16, subd. (e).)
In the present matter we find little room for doubt that the first and second questions must be answered affirmatively. Plaintiffs' own descriptions establish that the Web pages underlying their claims consist of "writing made in ... a public forum." A common meaning of "forum" is "a medium (as a newspaper) of open discussion or expression of ideas." (Merriam-Webster's Collegiate Dict. (10th ed.1999) p. 460.) All cases we have found considering public Web sites in this context have concluded that such a site constitutes a public forum within section 425.16. (Wilbanks v. Wolk (2004)
Moreover there can be no serious doubt that the conduct underlying plaintiff's claims was taken "in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech...." (§ 425.16, subd. (e)(4); see Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 897,
Nor can there be serious doubt that the challenged statements were made "in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).) It is undisputed that both plaintiffs were candidates for public office at the time the offending Web pages were published. The character and qualifications of a candidate for public office constitutes a "public issue or an issue of public interest." (Conroy v. Spitzer (1999)
In an attempt to show that defendant's conduct fell outside the reach of section 425.16, plaintiffs suggest that their lawsuit will not "chill" speech because it seeks only damages for conduct already completed. The Supreme Court has already
We conclude that the Act applies to plaintiffs' claims. This includes all of plaintiffs' causes of action, regardless of the underlying theories of recovery, insofar as they are "based on an act in furtherance of the defendant's right of petition or free speech. [Citations.]" (City of Cotati v. Cashman (2002)
II. Success on Merits
A. Failure to Plead Actual Malice
Once a defendant shows that the Act applies, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the merits. (Navellier, supra, 29 Cal.4th at pp. 88-89, 95,
The complaint here is legally insufficient on its face. For one thing, it fails to plead that defendant made the challenged statements with "actual malice" as that term is used in Sullivan, supra, 376 U.S. at pages 279-280, 84 S.Ct. 710 i.e., "with knowledge that it was false or with reckless disregard of whether it was false or not." Such a mental state must be pleaded and proved by any candidate for public office seeking recovery for supposedly injurious statements relating to his or her suitability for office. (Miller v. Nestande (1987)
The complaint here makes no attempt to plead a knowing and reckless falsehood. It contains only the conclusory boilerplate allegation that defendant acted "maliciously and oppressively, and in conscious disregard of [plaintiffs'] rights...." Such an allegation is insufficient to state a cause of action in a case where "actual malice" of the Sullivan type is required. (Noonan v. Rousselot, supra, 239 Cal.App.2d at p. 454,
Nor does plaintiffs' failure to plead a knowing or reckless falsehood affect only their claims for libel. Rather it constitutes a fatal defect as to all of their claims "hav[ing] as their gravamen the alleged injurious falsehood of a statement." (Blatty v. New York Times Co., supra, 42 Cal.3d at p. 1045,
Plaintiffs seem to imply that defendant's statements were not constitutionally privileged because they did not relate to a matter of public concern. We doubt that this point has been presented with sufficient cogency to require that we address it, but it is any event readily dispelled. Assuming the doubtful proposition that the offending statements had to separately appear to address matters of public concern, there is no basis on this record to doubt that they did so. Plaintiff Vogel's asserted default on child support obligations, and
Plaintiffs may be understood to suggest that Vogel's default and Grannis's bankruptcy were not germane to their electoral qualifications because they took place in the past. Again we may assume, without deciding, the potential pertinence of the argument as framed, and yet categorically reject it as inapplicable here. The determination of what facts are germane to a candidate's suitability for office is entrusted by our system of government to voters, not judges or juries. For that reason, persons commenting or reporting on a candidate's history must be allowed the broadest possible latitude. So long as past conduct has any arguable bearing on a candidate's honesty, integrity, prudence, judgment, wisdom, trustworthiness, responsibility, or any other trait fairly implicated by his or her aspiration to elected office, we would be very reluctant to permit the imposition of damages for an otherwise permissible report based merely on the premise that the passage of time has rendered the reported conduct irrelevant. (See Beruan v. French (1976)
We conclude that the complaint is deficient on its face and that since plaintiffs at no time offered to amend it in any pertinent respect, they failed to establish the requisite likelihood that they could prevail on the merits if allowed to proceed with the lawsuit. We are constrained to observe, however, that this point was never clearly raised by defendant as a distinct ground for dismissal. Therefore we will not rely on it for our own disposition (see Gov.Code, § 68081), but will proceed to consider whether plaintiffs carried their burden of showing an ability to prove their case on the merits.
B. Proof of Defamatory Utterance
In support of their claims plaintiffs have identified three distinct defamatory assertions as well as a host of other less clearly defined features of defendant's website. We will first consider whether plaintiffs have demonstrated an ability to prevail on the basis of the distinctly described statements, which consist of the following: (1) Both plaintiffs are among the "Top Ten Dumb Asses." (2) Plaintiff Vogel is a "deadbeat dad" who "owed thousands" to his wife and children. (3) Plaintiff Grannis is or was "Bankrupt, Drunk, and Chewin' tobaccy." For a variety of reasons, none of these statements can sustain any of plaintiffs' claims.
The accusation that plaintiffs are top-ranking "Dumb Asses" cannot survive application of the rule that in order to support a defamation claim, the challenged statement must be found to convey "a provably false factual assertion." (Moyer v. Amador Valley J. Union High School Dist. (1990)
Nothing in the record before us suggests that the context in which the challenged statements were made would have infused them with a provably false meaning. Judging from additional portions of the Web site offered by plaintiffs in their opposition papers below, the Web site's overall tone was one of puerile vituperation and wretchedly excessive tastelessness. The ostensible author of the list of "Top Ten Dumb Asses," apparently a fictionalized figure, is himself presented as a "dumb ass," i.e., "Dumb Ass Bob," who purports to be providing "advice" to supposed readers who may or may not themselves be fictional or fictionalized. If the page containing the "Top Ten List" is any example, "Dumb Ass Bob" refers to his readers (real or concocted) as "dumb ass[es]." In fact, the main purpose of the page seems to be to employ the term "ass" as often as possible, preferably in conjunction with "dumb." In such a context it is inconceivable that placement on the "Top Ten Dumb Asses" list could be understood to convey any imputation of provable defamatory fact. This statement simply cannot support a defamation claim, or any other claim pleaded by plaintiffs.
Proof of False Utterance
In contrast to the "Dumb Ass" charge, the statements that Vogel was a "deadbeat dad" and that Grannis was bankrupt, drunk, and "[c]hewin' tobaccy" are at least capable of conveying a provably false factual imputation. However, plaintiffs failed to substantiate their claims with respect to these statements, because they failed to make a prima facie showing that the statements were substantially false.
A public figure or public official who seeks to recover damages for a defamatory statement bears the burden of proving that the challenged statement was false. (Stolz v. KSFM 102 FM (1994)
The primary factual assertions identified by plaintiff Vogel as false were that he was a "deadbeat dad" and "wanted" as such, and that he "owes Wife and kids thousands." His only evidence concerning the true facts was the averment, "I do not owe my wife and kids thousands." This is a "negative pregnant," i.e., "a denial of the literal truth of the total statement, but not of its substance." (5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 995, p. 451.) By denying a debt in a specified amount, it leaves open the possibility of a debt in some other, perhaps substantially equivalent, amount. Thus if "thousands" means $2,000 or more, Vogel's simple negation leaves open the possibility that he owes $1,999.99, in which case the challenged statement remains substantially true.
Further, the use of the conjunction "and" in both the challenged statement and the denial raises a hosts of difficulties. In all likelihood the meaning of the challenged statement was that Vogel's combined debt to both his wife and children was at least $2,000. But the use of "and" in Vogel's denial ("I do not owe my wife and kids thousands") could mean a number of things: (1) the combined debt to his wife and children is less than $2,000; (2) the debt to his children is less than $2,000, but the debt to his wife may be greater; or (3) the debt to his wife is less than $2,000, but the debt to his children may be greater. This ambiguity becomes all the more striking considering the presumptive ease with which Vogel could have stated the true facts, i.e., how much he owed, and when and how the debt, or portions of it, were discharged. Vogel's failure to plainly refute the defamatory imputation by stating the true facts may be understood to imply that he did in fact continue to owe substantial amounts of unpaid child support.
Plaintiff Grannis tacitly admitted the substantial truth of describing him as "bankrupt"; certainly he did not deny that he had filed a bankruptcy petition as asserted in defendant's moving papers. And he failed to demonstrate any substantial falsity in the characterization "Drunk and Chewin' tobaccy." He described this characterization as false, but never stated the true facts to which the statement would have to be compared in order to establish its substantial falsity. He denied being an alcoholic, but not that he consumed alcohol to the point of inebriation, or that he had done so often, or that he liked to do so. Similarly, he used only the present tense in denying that he chewed tobacco; for all the record shows, he might have chewed it in the very recent past, and might intend to chew it again in the future. Further, while some people may consider the chewing of tobacco an unsavory or even repellent practice, there is no indication that it carries such opprobrium that a false imputation of engaging in it works compensable harm to an individual's reputation. We also question whether any viewer of the site would take seriously an imputation couched in a whimsical dialect ("Chewin' tobaccy") and surrounded by persiflage and raillery of the most self-indulgent and fanciful sort.
Both plaintiffs also complain about other aspects of defendant's Web site. Thus they assert that defendant linked their names to certain web addresses with objectionable names. For most of these complaints here is no indication of the actual content to be found at these addresses; rather, plaintiffs' complaints are based entirely on the name of the linked address. Thus Vogel complains that his name was linked to "www.satan.com," and Grannis complains that he was linked to "bankrupta[**]hole.com" and "olddrunk.com." But merely linking a plaintiff's name to the word "satan" conveys nothing more than the author's opinion that there is something devilish or evil about the plaintiff.
Plaintiffs also complain that defendant's Web site contained scurrilous text as well as links to pornographic material on other sites. There is no suggestion that defendant asserted any factual association between this material and plaintiffs, or that the material would be understood to refer to them in any way. A defamation action may proceed only where the challenged statement conveys a meaning "`of and concerning' the plaintiff." (Blatty v. New York Times Co. (1986)
Nor need we be long detained by plaintiffs' assertion that the Web site included emails and "bulletin messages" containing other statements defamatory of plaintiffs. The only evidence of any specific statement is the averment by plaintiff Grannis that the Web site included "emails and bulletin messages containing statements that I bankrupted many businesses throughout California." Such a statement might indeed support a judgment if shown to be attributable to defendant, substantially false, and made with knowledge of falsity or reckless disregard for the truth. However the record provides no basis to conclude that plaintiff Grannis could prove any of these elements. The owner or host of a Web site is not automatically liable for everything that appears there. (See Rest.2d, Torts, § 581(1); Communications Decency Act of 1996, 47 U.S.C. § 230; Carafano v. Metrosplash.com Inc. (C.D.Cal.2002)
D. Other Matters
Plaintiffs repeatedly emphasize that defendant's Web site was "anonymous," without explaining the intended meaning or significance of that characterization. While a speaker's attempt to remain anonymous might have some logical relevance in an otherwise colorable defamation action, it does not categorically dispel the protections of the First Amendment. On the contrary, "the First Amendment right of freedom of speech includes the right to remain anonymous." (Huntley v. Public Util. Com. (1968)
Plaintiffs also draw repeated attention to an "apology" ostensibly signed by defendant and assertedly printed in a local newspaper. Plaintiffs offered no competent evidence of the relevant facts, including the authenticity of the document, to which defendant objected on the ground
Even if the document were properly before us, it would have no tendency to establish that plaintiffs could succeed on the merits. The apology is addressed not to plaintiffs, but to "Bob Valenzuela, Tracie Cone, and the employees and friends of the Pinnacle...." None of these persons are competently identified in this record. The apology acknowledges that defendant's Web site "contained false and hurtful statements about Bob Valenzuela and Tracie Cone," and it sought "forgiveness from Bob Valenzuela, Tracie Cone, the employees and friends of The Pinnacle, and the citizens of this community." Nowhere does it expressly or impliedly acknowledge that defendant said anything false about plaintiffs or felt he had anything to apologize to them for. Nothing in this record ties the apology to plaintiffs' claims in any way.
Plaintiffs contend that the trial court properly excluded defendant's evidence in support of the special motion to strike. Plaintiffs' suggestion that these materials were irrelevant verges on frivolousness. Plaintiffs' remaining objections in the trial court are likewise meritless. Plaintiffs raise a more colorable argument on appeal by asserting that defendant failed to properly authenticate the pleadings from the child support and bankruptcy proceedings involving plaintiffs. It is at least arguable that defendant should have offered certified copies of these materials. However, no such objection was lodged in the trial court, where defendant might readily have cured it. Nor have plaintiffs contested the factual accuracy of these materials. We decline to entertain this objection for the first time on appeal.
Plaintiffs bore the burden of showing that they had pleaded, and had evidence to substantiate, a valid cause of action. They failed to carry that burden in virtually every respect. The order denying the special motion to strike cannot be sustained on this record.
The order under review is reversed with directions to grant the special motion to strike. Costs on appeal to appellant.
WE CONCUR: SELIA and MIHARA, JJ.
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