Kelman v. Kramer















Filed
9/14/10 Kelman v.
Kramer CA4/1









NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115 >.



COURT
OF APPEAL, FOURTH APPELLATE DISTRICT



DIVISION
ONE



STATE
OF CALIFORNIA






>

BRUCE KELMAN et al., Plaintiffs and Respondents. v. SHARON KRAMER, Defendant and Appellant.

D054496 (Super. Ct. No. GIN044539)

APPEAL from
a judgment of the Superior Court
of San Diego
County, Lisa C. Schall, Judge.
Affirmed.



In this
defamation case, Sharon Kramer appeals from a judgment entered on a jury
verdict finding she libeled Bruce Kelman.
The jury awarded Kelman nominal damages of one dollar and the trial
court awarded Kelman $7,252.65 in costs.
The jury found that Kramer did not libel GlobalTox and judgment against
GlobalTox was entered. The trial court
awarded Kramer $2,545.28 in costs against GlobalTox.

In a prior
opinion, a previous panel of this court affirmed an order denying Kramer's
motion to strike under the anti-SLAPP statute.
In doing so, we largely resolved the issues Kramer now raises on
appeal. In our prior opinion, we found
sufficient evidence Kramer's Internet post was false and defamatory as well as
sufficient evidence the post was published with constitutional malice. We also found there was sufficient evidence
to defeat Kramer's claim she was protected by the fair reporting privilege
provided to journalists by Civil Code section 47, subdivision (d)(1). Under the doctrine of the law case, these
determinations are binding on us and compel us to find there is sufficient
evidence to support the jury's determination Kramer libeled Kelman and was not
entitled to the fair reporting privilege.

We find no
error in the trial court's award of costs.
Accordingly, we affirm the judgment.

I

FACTUAL
BACKGROUND

Our prior
unpublished opinion, Kelman v. Kramer
(Nov. 16, 2006, D047758) ( >Kelman v. Kramer I), fully set forth the
factual background of the plaintiff's claims:

"Kelman is a scientist with a
Ph.D. in toxicology who has written, consulted, and testified on various
topics, including about the toxicology of indoor mold. He is also the president of GlobalTox, which
provides research and consulting services, including on toxicology, industrial
hygiene, medical toxicology, and risk assessment. Kramer is 'active in mold support and the
pressing issue of mold causation of physical injury' after having experienced
indoor mold in her own home.

"In
June 2004, Kelman gave a deposition in an Arizona
case, Kilian v. Equity Residential Trust
(U.S.Dist.Ct., D.Ariz., No. CIV 02-1272-PHX-FJM). During the deposition, Kelman testified about
his involvement with a paper on the health risks of mold that he co-authored with
two others for the American College
of Occupational and Environmental Medicine (ACOEM). This paper was reviewed by his peers in the
scientific community. Later he wrote a
nontechnical version of the paper for the Manhattan Institute. During the deposition, Kelman, inter alia,
denied including in the Manhattan Institute version argumentative language that
had been rejected during the peer review process at ACOEM and testified that if
there were any sentences that had been removed from the ACOEM version that
appeared in the Manhattan Institute version, they 'certainly weren't very
many.' The following exchange then
occurred:

"
'Q. And that new version that you did
for the Manhattan Institute, your company, GlobalTox, got paid $40,000,
correctâ€