Juan L. v. E.W. Scripps Co.



























Filed 5/17/13 Juan L. v. E.W. Scripps Co. CA3















NOT TO BE PUBLISHED







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opinion has not been certified for publication or ordered published for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

THIRD APPELLATE
DISTRICT

(Shasta)

----






>

JUAN L., a Minor, etc., Plaintiff and Appellant, v. E. W. SCRIPPS CO. et al., Defendants and Respondents.

C068353 (Super. Ct. No. 170462)

Juan L. (the minor) was the victim
of terrible acts of violence when he was seven years old. In reporting about the incident, which was of
intense local interest, defendants (collectively “the media defendants”)
published the minor’s full name. The
minor, by and through his guardian ad litem, sued the media defendants for href="http://www.fearnotlaw.com/">invasion of privacy and gross negligence
for printing his name.href="#_ftn1"
name="_ftnref1" title="">[1] The
trial court granted the media defendants’ motion to strike the complaint
pursuant to the anti-SLAPP (Strategic Lawsuit Against Public Participation)
statute, Code of Civil Procedure section 425.16.href="#_ftn2" name="_ftnref2" title="">[2] The
trial court found that the media defendants’ publications about the newsworthy
incident were protected by the First Amendment and the privilege set forth in
Civil Code section 47, subdivision (d).

The minor contends (1) the media
defendants failed to meet their threshold burden to show that they acted in
furtherance of the right of free speech, because they did not establish that
the minor’s name was newsworthy; and (2) the trial court erred in ruling that
the burden then shifted to the minor and that the minor failed to show a
probability of prevailing on the merits.

We conclude the trial court did not
err in granting the media defendants’ anti-SLAPP motion. The minor’s lawsuit arose from acts by the
media defendants in furtherance of the right of free speech in connection with
a public issue, and the minor failed to prove a probability of prevailing on
the merits.

We will affirm the
judgment/order.

BACKGROUND

Based on an anonymous tip regarding
a severely beaten child, Shasta County sheriff’s deputies and a child protective
services worker went to a Redding residence and contacted Rachel Limon and her brother Gregory Limon.href="#_ftn3" name="_ftnref3" title="">[3]
Gregory initially attempted to keep everyone out of the residence and
denied the presence of any children.
Gregory relented when told he would be detained, whereupon the minor was
discovered lying on a mattress, having difficulty breathing. The minor was taken into the custody of child
protective services and, due to the severity of his injuries, was flown to UC
Davis Medical Center in Sacramento. He had multiple broken ribs,
two broken vertebra, a lacerated spleen and liver, and numerous bruises,
scratches and gouges. The minor was
placed in foster care when he was released from the hospital.

Rachel, who had a child with the
minor’s father and was the minor’s guardian, eventually admitted assaulting the
minor and that she did so as a form of revenge against the minor’s mother. Rachel was charged with attempted murder,
torture, aggravated mayhem and child abuse, with related enhancement
allegations. Gregory was charged with
child abuse, being an accessory, and obstructing or delaying a peace
officer.

The community of Redding rallied behind the minor with an outpouring
of support. The media defendant’s
newspaper, the Record Searchlight, published a number of articles regarding the
minor’s condition and the charges brought against his attackers, and the
articles were republished in the Anderson Valley Post, a sister newspaper. The articles included the minor’s name.

The minor, by and through his
guardian ad litem, sued the media defendants for invasion of privacy and gross
negligence based on six articles in which the media defendants revealed the
minor’s name and the fact he was in foster care. The minor asserted his name was confidential
and privileged because he was a dependent minor. The minor alleged that after three of the
articles were published, his guardian ad litem Richard Bay contacted the media
defendants’ attorney, Walter McNeil, and advised him that litigation would
ensue if the media defendants did not cease and desist publishing the minor’s
full name. According to Bay, McNeil
agreed that printing the name was wrong and assured Bay it would not happen
again. The media defendants subsequently
referred to the minor as “Christmas Boy” for a while, but then used the minor’s
full name again on more than one occasion.
The minor asserted that as a consequence of the media defendants’
conduct, he suffered severe emotional distress and humiliation causing him
permanent injury and rendering it likely that he would change his name.

The media defendants filed a section
425.16 anti-SLAPP motion to strike the minor’s complaint. The media defendants argued that they met
their threshold burden to show that the complaint was based on acts by the
media defendants in furtherance of their right of free speech in connection
with a public issue (§ 425.16, subds. (b)(1), (e)(2), (3) & (4)). The media defendants then argued that the burden
shifted to the minor to prove a probability of success on his claims, but the
minor could not meet his burden because the media defendants’ actions were
privileged under the First Amendment and Civil Code section 47, subdivision
(d).

The media defendants’ motion
included declarations concerning the manner in which they lawfully obtained the
minor’s name and why they chose to use the name. According to Mike Chapman, the breaking news
editor for the Record Searchlight, one of the minor’s relatives telephoned
Chapman the day after deputies found the minor and arrested the Limons. The relative talked with Chapman about the
facts surrounding the matter, the people involved, and the minor’s condition. The relative stated that he wanted custody
and “was interested in ‘getting out his side of the story.’ ” Chapman asked for, and was told, the minor’s
full name so that Chapman could check with the hospital regarding the minor’s
medical condition. Chapman told the
relative that the newspaper would probably refer to the minor as “Junior,” but
it was possible the newspaper would decide to publish the minor’s name. Chapman attested that his inquiries “were
standard procedure for gathering information for a news story. I know of nothing improper, unlawful, or even
unusual in the manner in which I obtained the pertinent information which
included the name and identity of the [minor].”
Chapman did not refer to the minor by his full name in the first article
he wrote following this conversation, but he shared the minor’s name with
members of the news staff “who would be more directly responsible for follow-up
stories, so they could use that information for further news stories as deemed
appropriate.”

According to Silas Lyons, the editor
of the Record Searchlight, the staff of the newspaper learned of the minor’s
name through disclosure by a relative.
When a juvenile is a crime victim, a variety of factors are considered
in determining whether the identity or name of the minor is newsworthy. In this case, the newspaper published the
minor’s name because he was not a victim of sexual crimes, and because there
was an outpouring of community goodwill toward the minor. In addition, the victim assistance
coordinator, Angela Fitzgerald, related that the minor disliked being referred
to by nicknames such as “Christmas Boy” and “Junior;” he preferred to be
identified by his real name.
Furthermore, “County personnel from both the District Attorney’s office
(including the DA Jerry Benito) and the Sheriff began openly referring to the
boy by his accurate first name -- which in combination with repeated
publication of the last name of the boy’s father (revealed as such in public
arrest reports, and identified in news stories as the father of [the minor]) --
left nothing to the imagination as to the complete first and last name of [the
minor].”

McNeill declared that when he spoke
to Bay, he expressed concern and sympathy for the minor, but he did not say
that printing the minor’s name was wrong and did not promise that the media
defendants would not do so again. He
merely said he would pass along Bay’s concerns to Lyons. Lyons attempted to call Bay to discuss the
newspaper’s policy on publishing the names of minors but was unable to reach
him.

The minor opposed the motion to
strike, contending the complaint was not based on the media defendants’ free
speech because the minor’s name was not newsworthy and the public had no
legitimate interest in it. The minor
added that the media defendants had waived the right to rely on section 425.16
because they contractually agreed not to mention the minor’s name. The minor disputed that the media defendants’
conduct was privileged under Civil Code section 47. He also maintained that he had met his burden
of establishing a probability of prevailing on the merits because his name was
not newsworthy.

In support of the minor’s motion,
Bay declared that he told McNeill he was disturbed by the use of the minor’s
name given that he was a minor and the victim of a heinous crime. Bay declared, “There was no doubt in my mind
that Mr. McNeill believed the newspaper’s conduct was wrong because he advised
me that he would immediately start his inquiries and make sure this does not
happen again.” The newspaper “honored
our agreement” for awhile, but then referred to the minor by his full name on
three additional occasions. Bay did not
think it was necessary to return Lyons’s phone call the next day, because Bay
had already expressed his concerns to McNeill and had been assured it would not
happen again.

Fitzgerald declared that she told a
photojournalist from the Record Searchlight that the minor did not like to be
identified by nicknames such as “Christmas Boy” or “Junior.” However, she advised the photojournalist that
all children’s names should be kept confidential when they are involved in
criminal matters. The photojournalist
assured her that the minor’s name would not be used and they agreed to call him
“Minor L.”

The minor also submitted copies of
the media defendants’ privacy policies concerning information submitted to them
via their interactive online service and “personally identifiable information”
gleaned from such submissions. The
policies state: “The features, programs,
promotions and other aspects of our Website requiring the submission of
personally identifiable information are not intended for children,” from whom
they do not knowingly collect such information.
If a parent or guardian of a child under the age of 13 believes the
child may have disclosed personally identifiable information to the media
defendants, the parent or guardian “may review and request deletion of such
child’s personally identifiable information as well as prohibit the use
thereof.”

The minor submitted various articles
by the media defendants in which they did not use the names of minors accused
of committing crimes, or who were the victims of sexual offenses. The minor also submitted an article by Lyons
in which he explained why the name of a specific juvenile offender was withheld
from readers even though the name had been used openly in court. Lyons explained the newspaper had an ethical
duty to minimize harm to the juvenile, who would forever be marked as an
alleged violent criminal. Lyons
stated: “Knowing the name would not
provide the vast majority of readers with a better understanding of the
story.” However, he also stated,
“Ultimately, we may still publish the name. . . . If we can report a more complete story of his
life and how he came to be charged with such a terrible crime, we will again
weigh the ethical pros and cons.” In
another article, Lyons explained that the newspaper’s policy behind withholding
the name of juvenile offenders “is that they should have an opportunity to
redeem themselves.”

The trial court granted the media
defendants’ motion to strike, finding that the media defendants’ conduct was
protected by the First Amendment and privileged under Civil Code section 47,
subdivision (d).

APPLICABLE LAW AND STANDARD OF REVIEW

The Legislature has declared that courts
must broadly construe the anti-SLAPP statute (section 425.16), which is
intended to protect “the valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances.” (§ 425.16, subd. (a); >Levy v. City of Santa Monica (2004) 114
Cal.App.4th 1252, 1258.) Under the
statute, any “cause of action . . . arising from any act of [the
defendant] in furtherance of the person’s right of petition or free speech
. . . in connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).)

name="citeas((Cite_as:_2010_WL_3594489,_*3_(Ca">The anti-SLAPP statute creates “ ‘a two-step process for determining’
whether an action should be stricken as a SLAPP” under section 425.16. (Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 192.) First, the
court decides “whether the defendant has made a threshold showing that
. . . the act or acts of which the plaintiff complains were taken ‘in
furtherance of the [defendant]’s right of petition or free speech
. . . in connection with a public issue.’ ” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67, citing § 425.16, subd. (b)(1).)

An act in furtherance of the right
of free speech 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, or (4) 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)(1)-(4).)

If the defendant’s alleged conduct
falls within one of the categories enumerated in section 425.16, subdivision
(e), then the burden shifts to the plaintiff to demonstrate a probability of
success on his or her claims. (§ 425.16,
subd. (b)(1).) The plaintiff must show
“ ‘ “that the complaint is both legally sufficient and supported by
. . . facts to sustain a favorable judgment if the evidence submitted
by the plaintiff is credited.” ’
[Citations.]” (>Navellier v. Sletten (2002) 29 Cal.4th
82, 88-89 (Navellier).) The process is similar to the one used in
determining summary judgment motions. (>Gilbert v. Sykes (2007) 147 Cal.App.4th
13, 26.) “The showing must be made through
‘competent and admissible evidence.’
[Citations.] Thus, declarations
that lack foundation or personal knowledge, or that are argumentative,
speculative, impermissible opinion, hearsay, or conclusory are to be
disregarded. [Citation.] [¶] name="sp_999_7">name=B152011281574>‘In deciding the question of potential merit, the trial
court considers the pleadings and evidentiary submissions of name="sp_7047_764">name="citeas((Cite_as:_147_Cal.App.4th_13,_*26">both the plaintiff and the
defendant name="citeas((Cite_as:_147_Cal.App.4th_13,_*27">(§ 425.16, subd. (b)(2));
though the court does not weigh the credibility or comparative probative
strength of competing evidence, it should grant the motion if, as a matter of
law, the defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim.’ [Citation.]”
(Id. at pp.
26-27.) Accordingly, “the motion to
strike should be granted if the defendant ‘defeats the plaintiff's showing as a
matter of law, such as by establishing a defense or the absence of a necessary
element.’ [Citation.]” (Carver v. Bonds
(2005) 135 Cal.App.4th 328, 344.)

The standard of review on appeal is
de novo (ComputerXpress, Inc. v. Jackson
(2001) 93 Cal.App.4th 993, 999), but this simply means that our review of the
trial court’s decision is independent rather than deferential. It is still the appellant’s burden to
articulate a legal argument as to why the trial court’s decision was
erroneous. (Cf. Claudio v. Regents of University of California (2005) 134
Cal.App.4th 224, 230 [de novo review of motion for summary judgment does not
alter appellant’s burden on appeal].) De
novo review does not obligate us to cull the record for the benefit of the
appellant in order to attempt to uncover the requisite supporting facts. (Ibid.) “ ‘As with an appeal from any judgment,
it is the appellant’s responsibility to affirmatively demonstrate
error,’ ” and our “ ‘review is limited to issues which have been
adequately raised and briefed.’
[Citation.]” (>Ibid.)

DISCUSSION

I

The minor contends the media
defendants failed to meet their threshold burden to show that they acted in
furtherance of the right of free speech, because they did not establish that
the minor’s name was newsworthy. But the
minor’s characterization of the threshold burden is too restrictive (>M.G. v. Time Warner, Inc. (2001) 89
Cal.App.4th 623, 629) and it “confuses the threshold question of whether the
SLAPP statute [potentially] applies with the question whether [he] has
established a probability of success on the merits.” (Fox Searchlight Pictures, Inc. v.
Paladino (2001) 89 Cal.App.4th 294, 305, fn. omitted (Fox Searchlight);
accord, Navellier, supra, 29 Cal.4th
at p. 94.)

“The Legislature did not intend that
in order to invoke the special motion to strike the defendant must first
establish [his or] her actions are constitutionally protected under the First
Amendment as a matter of law.” (Fox
Searchlight, supra, 89 Cal.App.4th at p. 305; accord, Navellier,
supra, 29 Cal.4th at pp. 94-95.)
“Instead, under the statutory scheme, a court must generally presume the
validity of the claimed constitutional right in the first step of the
anti-SLAPP analysis, and then permit the parties to address the issue in the
second step of the analysis, if necessary.
[Citation.] Otherwise, the second
step would become superfluous in almost every case, resulting in an improper
shifting of the burdens.” (Chavez v.
Mendoza (2001) 94 Cal.App.4th 1083, 1089-1090; see Governor Gray Davis
Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458.)

Thus, to meet their threshold
burden, the media defendants need only have shown that the minor’s cause of
action arose from acts by the media defendants in furtherance of their right of
free speech in connection with a public issue (§ 425.16, subd. (b)(1)), as
defined in subdivision (e). They only
had to make a general showing; requiring any more would have rendered the
second step superfluous and resulted in improper burden shifting. The media defendants mentioned the minor’s
name while publishing newspaper reports about (1) a violent assault against the
child, (2) the investigation of the crime, and (3) the subsequent criminal
proceedings. This conduct unquestionably
involved the freedom of the press and freedom of speech in connection with an
issue of public interest, and in connection with an issue under consideration
by a judicial body. (§ 425.16, subds.
(e)(2) & (4).) Just as “[d]omestic
violence is an extremely important public issue in our society” (>Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226, 238), so too is child endangerment. (Cf. Terry
v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547.)

Moreover, even if publication of the
minor’s name was not a protected activity, nevertheless where a cause of action
is based on both protected activity and unprotected activity, it is subject to
section 425.16 “ ‘ “unless the protected conduct is ‘merely
incidental’ to the unprotected conduct.” ’
[Citations.]” (>Haight Ashbury Free Clinics, Inc. v.
Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1551, citing Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 672 [first prong of SLAPP analysis met where the allegations
of loss resulting from protected activity were not merely incidental or
collateral to unprotected activity]; and Mann v. Quality Old Time Service,
Inc. (2004) 120 Cal.App.4th 90, 104 [because the defendants’ reports to
government agencies formed a substantial part of the factual basis for
defamation and trade libel claims, the claims were subject to the SLAPP statute
even though also based on nonprotected statements].) Here, the media defendants’ protected
activity in reporting on crime, criminal investigation and criminal proceedings
is not incidental to the allegation that they invaded the minor’s privacy by
publishing his name; the minor is suing the media defendants because they
published his name in connection with the protected activity, rather than using
a pseudonym.

“In sum, since [the minor’s] action
against [the media defendants] is based on [their] constitutional free speech
and petitioning activity as defined in the anti-SLAPP statute, [the media
defendants] met [their] threshold burden of demonstrating that [the minor’s]
action is one arising from the type of speech and petitioning activity that is
protected by the anti-SLAPP statute.” (>Navellier, supra, 29 Cal.4th at p.
95.) Accordingly, the burden shifted to
the minor to show a probability of prevailing on the merits.

II

As best we can discern, the minor
next contends the trial court erred in ruling that the minor failed to show a
probability of prevailing on the merits.href="#_ftn4" name="_ftnref4" title="">[4]

The tort of invasion of privacy in
the publication of private facts contains the following elements: “(1) public disclosure (2) of a private fact
(3) which would be offensive and objectionable to the reasonable person and (4)
which is not of legitimate public concern.”
(Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126.)

Regarding the first element, there
is no dispute that there was public disclosure.
As for the second element, the media defendants lawfully obtained the
minor’s full name from a relative. Prior
to publishing the name, the media defendants learned that the sheriff and
district attorney were openly using his first name. The media defendants had already published
the full name of the minor’s father in connection with an unrelated crime,
noting that he was the father of the minor who had been so horribly
abused. Thus, the minor’s full name was
already public knowledge, or as Lyons put it, the aforementioned facts “left
nothing to the imagination as to the complete first and last name” of the
minor.

The minor provides no argument or
authority on the third element, that the disclosure of his name would be
offensive and objectionable to a reasonable person. Instead, he focuses on the fourth
element. To prevail on that element, the
minor needed to demonstrate that his name was “not of legitimate public
concern,” i.e., that it was not newsworthy.
(Shulman v. Group W Productions,
Inc. (1998) 18 Cal.4th 200, 215-216 (Shulman).) Conversely, newsworthiness was a defense to
the minor’s claim. “[T]he publication of
truthful, lawfully obtained material of legitimate public concern is
constitutionally privileged and does not create liability under the private
facts tort.” (Id. at p. 227.) “[N]ewsworthiness
is not limited to ‘news’ in the narrow sense of reports of current events. ‘It extends also to the use of names,
likenesses or facts in giving information to the public for purposes of
education, amusement or enlightenment, when the public may reasonably be
expected to have a legitimate interest in what is published.’ [Citations.]”
(Id. at p. 225, quoting Gill
v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 229.)

If the publication was of legitimate
public concern, there can be no tort liability where the facts disclosed “bear
a logical relationship to the newsworthy subject of the publication and are not
intrusive in great disproportion to their relevance,” and this is so even if
the subject of disclosure was “a private person involuntarily caught up in
events of public interest.” (>Shulman, supra, 18 Cal.4th at p.
215.) “In general, it is not for a court
or jury to say how a particular story is best covered. The constitutional privilege to publish
truthful material ‘ceases to operate only when an editor abuses his broad
discretion to publish matters that are of legitimate public interest.’ [Citation.]
By confining our interference to extreme cases, the courts ‘avoid[]
unduly limiting . . . the exercise of effective editorial judgment.’ [Citation.]
Nor is newsworthiness governed by the tastes or limited interests of an
individual judge or juror; a publication is newsworthy if some reasonable
members of the community could entertain a legitimate interest in it.” (Id.
at p. 225.)

The minor admitted in the trial
court that the crimes and circumstances were newsworthy. The name of the minor and what happened to
him bore a logical relationship to the newsworthy subject and was of legitimate
interest to the community of Redding. It
was reasonable for the public to want to know whether the minor had been moved
to a place of safety, such as foster care.
Even if it might have been a better policy to keep the minor’s name and
the fact he was in foster care private, that does not mean those facts were not
of legitimate public interest. (Cf. >Fletcher v. San Jose Mercury News (1989)
216 Cal.App.3d 172, 187 [whether journalism standards were violated had no
bearing on defamation action].) And the
state may not constitutionally punish the publication of truthful, lawfully
obtained information about a matter of legitimate public interest except in
“circumstances involving ‘a need to further a state interest of the highest
order.’ ” (Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 693
(Gates), quoting Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [61
L.Ed.2d 399, 405].)

The minor does not demonstrate that
revealing the identity of a physically abused minor or the fact of his
placement in foster care violated a state interest of the highest order. Indeed, he does not discuss or explain why he
thinks his situation is distinguishable from multiple United States Supreme
Court cases finding various interests not
to be of the highest order. (See >Bartnicki v. Vopper (2001) 532 U.S. 514,
529-533 [149 L.Ed.2d 787, 802-805] [interests in removing incentive to
illegally intercept conversations, and in minimizing harm to persons whose
conversations are intercepted]; The
Florida Star v. B.J.F. (1989) 491 U.S. 524, 536-541 [105 L.Ed.2d 443,
457-460] [interests in rape victim privacy, victim safety, and encouraging
victims to report offenses]; Smith v.
Daily Mail Publishing Co., supra, 443 U.S. at p. 104 [61 L.Ed.2d at pp.
405-406] [rehabilitative interest in protecting anonymity of juvenile
offenders]; Cox Broadcasting Corp. v.
Cohn (1975) 420 U.S. 469, 496 [43 L.Ed.2d 328, 350] [interest in protecting
anonymity of deceased rape victim]; see also Gates, supra, 34 Cal.4th at p. 693 [protection of long-term
anonymity of former convicts].)

Furthermore, the minor fails to
address the media defendants’ assertion of privilege under Civil Code section
47, subdivision (d), which provides, in relevant part: “A privileged publication . . . is
one made: [¶] . . . [¶] (d)(1) By a fair and true report in, or a
communication to, a public journal, of (A) a judicial, (B) legislative, or (C)
other public official proceeding, or (D) of anything said in the course
thereof, or (E) of a verified charge or complaint made by any person to a
public official, upon which complaint a warrant has been issued.”

This statutory provision, which is name="SR;2471">broadly construed, “confers an
absolute privilege.” (Sipple v.
Foundation for Nat. Progress, supra,
71 Cal.App.4th at p. 240.) It applies if
the substance of the publication or broadcast captures the gist of the
statements made in the official proceedings.
(Carver v. Bonds, supra, 135
Cal.App.4th at p. 351.) A newspaper and
news Web site are “ ‘public journal[s]’ ” within the meaning of the
statute. (Ibid.) A “ ‘public
official proceeding,’ ” includes a police investigation. (Balzaga
v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1337.) “In the name="SR;7356">context of judicial proceedings,
. . . reports which comprise a history of the proceeding come within
the privilege, as do statements made outside the courtroom and invoking no
function of the court, e.g., representations and theories expressed by criminal
justice personnel in relation to pretrial events such as pursuit and arrest of
the defendant. [Citation.]” (Braun v. Chronicle Publishing Co.
(1997) 52 Cal.App.4th 1036, 1050, italics omitted.)

Here, the media defendants used the
minor’s name in published articles that were a fair and true report of the
police investigation into the assault committed against the minor and of the
subsequent judicial proceedings against the perpetrators, the Limons. As such, the use of the minor’s name is
privileged under Civil Code section 47, subdivision (d).

Rather than discussing these
constitutional and statutory matters that formed the basis for the trial
court’s ruling, the minor instead argues the trial court erred in overruling
his objections to the media defendants’ affidavits in support of their
anti-SLAPP motion. The minor suggests
that when the objectionable material is excised there is no support for the
anti-SLAPP motion. But the minor does
not discuss his specific objections in his opening brief and he does not
provide any legal authority for his position.
He merely incorporates by reference the objections made in the trial
court, asserting that the media defendants’ declarations were hearsay, nothing
more than deceitful, and authored for the sole purpose of stopping the
litigation. Under the circumstances, the
minor’s contention is forfeited. (>Garrick Development Co. v. Hayward Unified
School Dist. (1992) 3 Cal.App.4th 320, 334 [an argument may be forfeited
where the appellant simply incorporates by reference arguments made in papers
filed in the trial court rather than brief the arguments on appeal]; >Badie v. Bank of America (1998) 67
Cal.App.4th 779, 784-785 [when an appellant fails to raise a point, or
fails to support a point with reasoned argument and citations to authority, it
is forfeited].)

But even if the trial court had
erred in overruling the minor’s objections, the minor does not establish the
manner in which he suffered prejudice as a result of those rulings. A judgment will not be reversed unless the
error at the trial court level resulted in a miscarriage of justice to the
extent that a different result would have been probable without the error. (Cal. Const., art. VI, § 13; Code Civ. Proc.,
§ 475; Evid. Code, §§ 353, 354; Pool v. City of Oakland (1986) 42 Cal.3d
1051, 1069; Malibu Mountains Recreation, Inc. v. County of Los Angeles
(1998) 67 Cal.App.4th 359, 372.) The
appellant has the burden of affirmatively demonstrating prejudicial error. (Pool v. City of Oakland, supra, 42
Cal.3d at p. 1069.) And appellate courts
will not “act as counsel for appellant by furnishing a legal argument as to how
the trial court’s ruling was prejudicial.”
(Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)

name="sp_999_29"> The minor does not
explain how a different result would have been probable had the asserted errors
not occurred. He has therefore failed to
satisfy his affirmative burden on appeal of demonstrating prejudicial error.

DISPOSITION

The judgment/order is
affirmed.





MAURO , J.





We concur:





RAYE , P. J.






NICHOLSON , J.