Chen v. Lincoln Broadcasting

Filed 6/11/08 Chen v. Lincoln Broadcasting CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Kuo-Liang Chen sued Lincoln Broadcasting Company (Lincoln), the owner of a television station, for defamation over a broadcast reporting that Taiwanese officials suspected Chen of posting terrorist threats against Taiwanese targets on the Internet. The trial court granted Lincolns special motion to strike the complaint under Code of Civil Procedure section 425.16. Chen contends that the court erred in finding that he had not established a probability of prevailing on the merits of his defamation claim. We affirm.

I. BACKGROUND

Chen is a citizen of the Republic of China (Taiwan) and a legal resident of the United States. He lives in the San Francisco Bay Area and works in the real estate field. Lincoln owns and operates KTSF-Channel 26 (KTSF), a television station that broadcasts foreign language programming in the Bay Area, including daily new shows in Cantonese and Mandarin.

KTSF has a news footage license agreement with PPV Network (USA), Inc. (PPV) in Taiwan under which PPV provides news footage to KTSF via satellite from the CTI Zhong Tian Channel News Program (Zhong Tian), a major television network in Taiwan. KTSF often runs stories from Zhong Tian directly without editing. On September 1, 2006, KTSF received a satellite feed from Zhong Tian that included footage from and a report on a press conference held that day by the Criminal Investigation Bureau of Taiwan (CIB). The report, delivered in Mandarin by a Zhong Tian reporter, stated, among other things, that a United States businessman with the last name of Chen was suspected of being a member of a terrorist group who posted messages on the Internet claiming he would blow up the presidential palace and Taipei Railway Station.

Translated from Mandarin, the relevant audio portions of the September 1, 2006 report were as follows: [Lead by KTSF anchor:] Last week, there was a rumor spreading out on the Internet; bombs were set at the Taipei Railway Station. Though the rumor turned out to be a false alarm, the Criminal Investigation Bureau of Taiwan has identified the suspect with [sic] posted the information, who currently resides in Union City, East Bay. He is the Vice President of the Ark Communications, Inc., 38-year-old Chen Kuo Liang. [Statement by Zhong Tian Reporter:] Dressed in a business suit, the man with the last name Chen in the photo is in an embrace with a foreign client and looks very much like a big boss [sic]. He is the vice president of a real estate company in the United States worth a hundred million dollars. The police found out to their surprise that was the terrorist who threatened to bomb the presidential palace and the Taipei Railroad Station. [] [Actual footage of CIB press conference, deputy chief of CIB speaking:] His [sic] is currently all the circumstantial evidence weve gathered, all online information, including some of his IPs in the United States used to send messages, and some of the information sent from Mainland China, which all match some of his departure and exit times. [] [Statement by Zhong Tian reporter:] The man with the last name Chen posted articles on well-known gateway websites, indicating that he would launch a terror attack. Based on the IP, the police found the man named Chen, who first went online in the United States to post articles. In the next several days, he passed through Japan by air, and again used a computer at the airport to post articles and let it be known that he would launch a terror attack. . . . [] [Actual footage of CIB press conference, deputy chief of CIB speaking:] In the just-passed twenty-somethingth [sic] and on the thirtieth of the month, on this Internet, he was extremely provocative in challenging the tracing abilities of the police organization and implementing [sic] abilities of powers of public office and provoked us. This was very arrogant. [] [Statement by Zhong Tian reporter:] The police plan to use the method of staging a group [unintelligible] to bring the man with the last name Chen, who is now in Shanghai, back to Taiwan, to find out whether he was unhappy with the political status or had other motives, which has turned an impressive vice president into an Internet bomber. [Concluding comments by KTSF anchor:] According to sources, Taiwan police is [sic] looking for ways to instigate an extradition for Chen Kuo Liang to return to the country to defend himself. But he has already claimed he is innocent in Shanghai[,] saying he does not do such ridiculous things. He suspects the computers in his company in the U.S. were remotely used by hackers who posted terror attacks messages . . . . He said he is on a business trip in Shanghai now and will participate in the investigation after he returns to the U.S., to find out if his company computers were illegally accessed by hackers.

KTSF broadcast follow-up reports on September 4, 7, and 8, 2006, which included interviews with Chen in which he denied his involvement with the incidents referred to in the CIB press conference and stating his intent to pursue legal remedies against the Taiwanese officials. KTSFs follow-up reports included coverage of a press conference called by Chen in the Bay Area to criticize the CIBs negligence in investigating the matter.

On September 21, 2006, Chen sent KTSF a letter demanding that it retract and correct the stations September 1 broadcast. On February 1, 2007, Chen sued Lincoln and other media defendants for defamation. Chen made the following allegations pertaining to Lincoln: On or about September 1, 2006, Defendant Lincoln aired a story on its news program on Channel 26, KTSF in the Bay Area. That broadcast included an announcement by an anchorperson that Plaintiff spread terrorist rumors in Japan, China and the United States by using his computer and IP address. Said story also showed a photograph of Plaintiff with San Francisco Mayor Gavin Newsom. According to Chens complaint, Lincolns September 1 broadcast was libelous on its face because it falsely described Chen as a terrorist.

Lincoln moved to strike the complaint under Californias anti-SLAPP statute, Code of Civil Procedure section 425.16.[1] Lincoln argued that Chens defamation claim arose from an activity protected by section 425.16 and, therefore, Chen had the burden of demonstrating that he had a probability of prevailing on the merits. Lincoln asserted that Chen could not meet its burden because (1) the broadcast was privileged under Civil Code section 47, subdivisions (d)(1) and (e), and section 48.5;[2] and (2) even assuming the broadcast was not privileged, Chen could not demonstrate by clear and convincing evidence that KTSF broadcast the statements in issue with knowledge of, or reckless disregard for, their truth or falsity.

The trial court granted Lincolns motion, finding that the broadcast was privileged under all of the statutory privileges cited in it. Chen timely appealed from the order granting the motion.

II. DISCUSSION

A. Standard of Appellate Review

An order granting a special motion to strike under Code of Civil Procedure section 425.16 is reviewed de novo. (Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.) We apply our independent judgment to determine whether the plaintiffs causes of action arose from acts by the defendant that are protected by the statute. (Mission Oaks Ranch, Ltd.v. County of Santa Barbara (1998) 65 Cal.App.4th 713, 721, disapproved on another ground in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) Assuming this threshold condition is satisfied, we must then independently determine, from our review of the record as a whole, whether appellant has established a reasonable probability that he would prevail on his claims at trial. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) We must reverse the judgment of dismissal if appellant made a prima facie showing in the trial court of facts which, if proved at trial, would support a judgment in his favor. (Ibid.)

B. Analysis

Code of Civil Procedure section 425.16, subdivision (b) authorizes a special motion to strike causes of action against a person arising from any act of that person in furtherance of the persons 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. (Italics added.)

Subdivision (e) of Code of Civil Procedure section 425.16 lists four categories of acts that come within the foregoing italicized language: (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.

Lincoln had the initial burden to establish a prima facie case that Chens cause of action arose from actions on its part falling within at least one of the four categories described in Code of Civil Procedure section 425.16, subdivision (e). (Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 646.) Only if Lincoln met that requirement did the burden properly shift to Chen to establish a probability that his claims would be found meritorious at trial. (Ibid.) Chen does not dispute that news reporting such as that in issue here is a free speech activity within the purview of section 425.16. (See Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166.) His sole contention on this appeal is that the trial court erred in finding that he could not demonstrate a probability of prevailing on his claim.

Lincoln asserted that the subject broadcast was privileged as a fair and true report of the proceedings of a public meeting or public official proceeding. (Civ. Code,  47, subds. (d), (e).) Chen emphasizes those statements by the Zhong Tian reporter in the September 1 broadcast in which the reporter did not refer to him as the alleged or accused or suspected Internet terrorist, but asserted or implied that he was in fact the person who posted the Internet threats. According to Chen, these references at the very least create a factual dispute as to whether the disputed broadcast was fair. (See Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626, 1634 [holding that summary judgment for a newspaper based on section 47 was properly denied because [w]here, as here, reasonable minds could disagree on what is fair, the issue is a question of fact to be determined by the jury].)

Under California law, a newspaper report is fair and true if it captures  the substance, the gist, the sting of the libelous charge.  [Citations.] The news article need not track verbatim the underlying proceeding. Only if the deviation is of such a substantial character that it produces a different effect on the reader will the privilege be suspended. [Citation.] News articles, in other words, need only convey the substance of the proceedings on which they report, as measured by their impact on the average reader. (Crane v. The Arizona Republic (9th Cir. 1992) 972 F.2d 1511, 1519 (Crane).) In determining whether a report was fair and true, the report is not to be judged by the standard of accuracy that would be adopted if it were the report of a professional law reporter or a trained lawyer. (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 387.) The reports accuracy must be evaluated from the standpoint of persons whose function is to give the public a fair report of what has taken place. (Ibid.) When there is no dispute as to what occurred in the proceeding reported upon, or as to what was contained in the report, the decision of whether the report is fair and true is one of law. (McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 976.)

Here, the gist of the report viewed in its totality was that Chen was suspected or accused by the CIB of being the person who posted Internet threats, not that he definitely was that person. The broadcast was framed throughout as a report on the CIBs press conference. The KTSF anchor introduced the piece by stating that the CIB had identified Chen as the suspect in connection with an Internet rumor that bombs had been planted at the Taipei Railroad Station. Footage of the press conference was then interspersed with statements by the Zhong Tian reporter. Although the statements did not include the qualifiers, alleged or suspected, it is plain from their context that the reporter was merely reiterating allegations that had been made about Chen by the CIBs spokesperson at the press conference. The concluding statement by KTSFs anchor leaves no doubt about the unresolved status of the charges. The anchor concluded KTSFs broadcast by reporting that Chen had denied the charges, emphasized that he does not do such ridiculous things, and proposed that his computers may have been hacked.[3]

In our view, the trial court correctly found that the only reasonable interpretation of Lincolns broadcasts is that law enforcement authorities in Taiwan suspected [Chen] of criminal activity, and [Chen] emphatically denied such involvement. Despite the problem phrasing used by the Zhong Tian reporter, the broadcast in its entirety capture[d]  the substance   of what was said by the Taiwanese officials at the press conference, and was therefore privileged under Civil Code section 47, subdivisions (d)(1) and (e).[4] (Crane, supra, 972 F.2d at p. 1519.)

In view of the overall impression the broadcast would have left on the average viewer, we reject Chens argument that Lincoln was under an obligation to go further and specifically correct or disavow the Zhong Tian reporters statements. We also fail to perceive how further discovery could have affected the outcome of this case.

Because Chen failed to meet his burden of showing a probability of overcoming the applicable privileges and of prevailing in the lawsuit, the trial court properly granted Lincolns motion to strike the complaint.

III. DISPOSITION

The order granting Lincolns motion to strike the complaint is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Marchiano, P.J.

_________________________

Stein, J.

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[1] The term SLAPP is an acronym for a strategic lawsuit against public participation, a term coined by two law professors to describe lawsuits intended to discourage groups or individuals from taking positions on public issues adverse to the plaintiffs. (See Code Civ. Proc.,  425.16, subd. (a); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 72, fn. 1; Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Soc. Probs. 506.)

[2] Under Civil Code section 47, subdivision (d)(1), a fair and true report . . . of anything said in the course of a public official proceeding is privileged. Subdivision (e) makes privileged a fair and true report of . . . the proceedings of a public meeting. Section 48.5 protects, among other things, a television broadcasters re-broadcast of materials produced by others as long as the broadcaster exercises due care to prevent the publication of any defamatory matter contained in such materials.

[3] All three of KTSFs follow-up broadcasts reported Chens responses to the charges at length, including his statement that he intended to pursue legal remedies against the Taiwanese officials. A report of an official proceeding can be fair and true even if it does not report the plaintiffs side of the story. (Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 427, disapproved on another ground in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738.)

[4] We do not reach Lincolns further claims that the broadcast was privileged under Civil Code section 48.5 and that Chen was a limited purpose public figure and had come forward with no evidence of actual malice. (See Copp v. Paxton (1996) 45 Cal.App.4th 829, 846848.)