Meyers v. Tempesta



















Filed 1/9/13
Meyers v. Tempesta CA4/1

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>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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






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DANIEL M. MEYERS, Plaintiff and Respondent, v. SCOT TEMPESTA et al., Defendants and Appellants.

D060825 (Super. Ct. No. 37-2010-00057972- CU-DF-NC)

APPEAL
from an order of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">San Diego
County, Earl H. Maas III, Judge. Affirmed.



Daniel Meyers
brought a defamation lawsuit against an owner of a Web site (Sailing Anarchy,
Inc.), its publisher (Scot Tempesta), and one of its editors (Alan Block). On appeal, defendants challenge the court's
denial of their anti-SLAPP motion seeking to dismiss a cause of action that was
based on an alleged defamatory statement appearing on Sailing Anarchy's Web
site. (Code Civ. Proc., § 425.16 (§ 425.16).) Defendants contend the court erred in finding
there was a reasonable probability Meyers would prevail in proving this cause
of action. We reject this contention and
affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Meyers
is the chief executive officer of a publicly traded company and president of a
federally chartered bank holding company.
His business is highly regulated and he is subject to a significant
amount of regulatory scrutiny and investigation. Meyers also serves on several philanthropic
boards and donates time to charitable organizations. In his free time, Meyers participates in the
sport of sailing and commits a significant amount of time and resources to the
sport.

Sailing Anarchy
owns an interactive Web site (sailinganarchy.com) "that includes daily
original content including articles, interviews, editorials, rumors, and
extremely active message boards and forums where bloggers and the public have
the opportunity to discuss typical issues about sailing." The Web site has more than 30,000 registered
members and receives more than one million views each month.

In
August 2010, Meyers filed a complaint against Sailing Anarchy, its publisher
(Tempesta), and an editor (Block), alleging three causes of action, each of
which was based on a separate alleged defamatory statement made by one or more
of the defendants.

In the first
cause of action, Meyers alleged defendants published on Sailing Anarchy's Web
site a photograph with a caption that included a reference to Meyers as a
"multi-millionaire grifter."
The photograph appeared on the Web site's home page and shows Meyers (a
very large man) sitting in a boat owned by the Alinghi racing syndicate. The photograph is entitled "Big
Fun" and the caption reads:

"Alinghi
have claimed that they won't be using water ballast for Cheezilla, and today we
learned of their new movable ballast solution.
Called 'Ballast The Hutt,' the new system uses the heft of
multi-millionaire grifter Dan Meyers to create righting moment as well as to
infuse Alinghi with much-needed capital for the affair. The system relies on hydraulic power to slide
Meyers athwartships on the Doug Lord-designed HuttBench® and adds some 50 tons
of righting moment to the Swiss catamaran.
Early tests were canceled when Meyer ate two trimmers during a sailing
break. 'I thought they were bacon
sandwiches,' said Meyer. Sources report
George Lucas considering legal action against Alinghi . . .



"Pic
courtesy of Anarchist Boba Fett. And this
pic shows the quality of Alinghi's PR effort."



Meyers alleged this publication was
defamatory because it accused him in a derogatory fashion of being a
"grifter" and that readers of the Web site would interpret the
"grifter" term to mean " 'a con artist, swindler, dishonest
gambler or the like . . . .' "


Second, Meyers
alleged that Drew Freides, a member of the San Diego Yacht Club, asked
defendant Tempesta (in a private conversation) why he called Meyers a
" 'grifter,' " and Tempesta allegedly responded by stating
that Meyers "was a 'white collar criminal' and that he had 'stolen
millions of dollars' in his business operations."

Third, Meyers
alleged Tempesta wrote an email to Marian Martin stating that "Meyers is
'a white collar criminal who stole millions.' "

With respect to
all three causes of action, Meyers alleged defendants' statements were
defamatory in that they falsely described Meyers as engaging in illegal and/or
wrongful conduct and the true facts are that Meyers is not a
"grifter," has never "stolen anything," and has never engaged
in any white collar criminal activities.
Meyers also alleged each statement exposed him to contempt, ridicule,
hatred and obloquy, and resulted in damages to his reputation and emotional
distress.

Defendants moved
to strike all three causes of action under the anti-SLAPP statute. Defendants argued the anti-SLAPP statute
applied to each cause of action and Meyers could not show a probability of
prevailing on his claims. With respect
to Meyers's probability of prevailing on the first cause of action, defendants
argued the "grifter" reference was not defamatory because it would
not be understood by readers of the Web site as stating actual facts about
Meyers that are provably false. They
argued the reference fell within "the realm of 'classic rhetorical
hyperbole which "cannot [']reasonably [be] interpreted as stating actual
facts.' " ' "
They also argued the term "grifter" has several meanings, only
one of which was derogatory.

In support of
these arguments, defendant Tempesta submitted his declaration stating that the
purpose of the sailinganarchy.com Web site is to provide an alternative to
other sailing publications and Internet sites that are generally "filled
with mundane stories and focused primarily on the elite participants who
dominate the headlines of the sport, as opposed to the 'common man' who also
participates in sailing and racing, albeit not always at the level of the
America's Cup." He stated that
"most sailing publications and boating reviews are forced to compromise
their content to ensure that sponsors and advertising revenue are not
jeopardized. Thus, I attribute Sailing
Anarchy's success to its mantra[:]
'Where the Status Quo Blows.' I
thought the best way to make our website more distinctive was to give it an
edgy and provocative style, and present ou[r] views with topics, ideas, and
critiques that are generally not written about in other sailing publications or
websites. [¶] . . . Sailing Anarchy also
takes pride in its Message Board, where robust discussions are encouraged and
viewer comments are not ignored or edited but celebrated."

With respect to
the "Big Fun" photograph and caption, Tempesta stated: "This photograph and caption were
published as a joke regarding Meyers' weight, and had nothing to do with
obtaining money or property by fraud or deceit as suggested in [the]
Complaint. The caption was not making a
factual statement and was not meant for the listeners to take literally because
its literal interpretation is nonsensical.
I know that our readers interpreted the statement to be a joke since the
countless corresponding message board posts commenting on [the article]
expressed their amusement and further discussed Meyers' weight. Needless to say, while the caption was
probably sophomoric and in bad taste, it was in no way . . . intended
to be defamatory."

Defendants also
submitted copies of message board posts responding to the Big Fun photograph,
most of which treated the photograph and caption as a joke and discussed
Meyers's weight. Defendants additionally
submitted various articles discussing Meyers's role in the student loan
business and federal government investigations directed towards Meyers's former
company.

In opposing the
anti-SLAPP motion, Meyers argued that even assuming the anti-SLAPP statute
governed the first cause of action, he had a probability of prevailing on this
claim based on a showing that the "grifter" accusation was
defamatory, false, and would result in substantial damage to his
reputation.

With respect to
the meaning and defamatory nature of the "grifter" term, Meyers
submitted the declaration of Edward Finegan, a Professor Emeritus of
Linguistics and Law at University of Southern California School of Law. Dr. Finegan stated that the verb form of the
word ("grift") is defined in standard dictionaries to mean:
" 'to obtain (money) illicitly (as in a confidence game)' or 'to
acquire money or property illicitly' " and " 'to engage in
swindling or cheating.' " Dr.
Finegan stated that he conducted a survey of the use of the word
" 'grifter' " by numerous American newspapers, and
determined newspapers typically use the "grifter" term "with
words like 'scam,' 'fooled,' 'fraud,' 'false,' 'dishonest,' 'cheating,' 'con,'
and 'fleece.' In other words, 'grifter'
as used in American newspapers is a scam artist whose fraudulent activity
fleeces the innocent of their money or goods by fooling them." According to Professor Finegan, in this
common usage, a grifter generally refers to "a dishonorable person."

Professor
Finegan also discussed the word "grifter" as it was used in the Big
Fun photograph caption:

"In the
matter at issue here, 'grifter' appears in a caption under a photograph. That caption includes the word 'grifter' in
this sentence: 'Called "Ballast The
Hutt," the new system uses the heft of multi-millionaire grifter Dan
Meyers to create righting moment as well as to infuse Alinghi with much-needed
capital for the affair.'
[¶] . . . For an ordinary reader, it would be clear
that the sentence ridicules Dan Meyers's physical weight. The words associated
with that effect include 'ballast,' 'heft,' and the more technical 'righting
moment'; those terms mirror the photograph, in which Meyers's physical bulk is
apparent. In addition, the sentence does
a second thing, which is not mirrored in the photograph but is unmistakably
conveyed by the language of the sentence.
The sentence characterizes Meyers as a 'multi-millionaire grifter' whose
'heft' also 'infuse[s] Alinghi with much needed capital.'



" . . . Thus,
besides satirizing Meyers' size and weight . . . the caption notes that Meyers
brings 'much needed capital' to 'the affair' ('infuse' and 'much-needed
capital' are sober expressions that convey a serious tone to this other
observation). . . . Ordinary readers
would be completely justified in interpreting this word to mean that the writer
or the website on which the photo and caption appear are claiming that the
'multi-millionaire' (Meyers) has gotten his money illicitly, as by trickery or
fraudulence. However, in contrast to the
ridicule and satire involved in reference to his physical 'heft,' calling
Meyers a 'multi-millionaire grifter' leaves no doubt that the caption alleges
that his wealth has been gained illicitly.



" . . . Further,
the reference to 'Ballast the Hutt' in the quoted sentence above echoes the
name 'Jabba the Hutt,' the 'Star Wars' alien characterized by Wikipedia as 'a
600-year old Hutt crime lord and gangster who employs a retinue of criminals,
bounty hunters, smuggle[r]s, assassins, and bodyguards to operate his criminal empire'
. . . As the Wikipedia entry says about the name, in popular culture it is
'used as a satirical literary device and a political caricature to underscore
negative qualities such as morbid obesity and corruption.' It is of course just those two qualities that
the photo and its caption aim to indicate in Dan Meyers." (Fn. and underscoring omitted.)



Dr. Finegan concluded it was his
professional opinion that readers of the Sailing Anarchy Web site would
reasonably interpret the "multi-millionaire grifter" reference
"as a straightforward factual accusation that Meyers gained his wealth by
fraud or other illicit means."

With respect to
the falsity of the "grifter" statement, Meyers submitted his own
declaration in which he denied he has engaged in any wrongful conduct or
committed any crimes. He also discussed
that he has successfully undergone rigorous government reviews based on his
high-level positions with highly-regulated businesses. He asserted that the
" 'grifter' " accusation was specifically targeted to harm
him both professionally and socially because many of his business associates
are also members of the sailing community.
Meyers also presented the deposition transcripts of defendants Tempesta
and Block in which both defendants acknowledged that at the time the Big Fun
photograph and caption were published on the Web site, they did not believe
Meyers had obtained money by fraud, cheated anybody out of money, stole any
money, or that Meyers was a white collar criminal.

Meyers also
produced evidence showing that in response to a question as to why he had
charged Meyers with being a "grifter," defendant Tempesta told a
third party that Meyers was a " 'white collar criminal' "
who had " 'stolen millions of dollars.' " Meyers also proffered a copy of an email
thread in which Tempesta (or another Sailing Anarchy editor) stated that Meyers
is "a while collar criminal who stole millions" and that he
"gives a lot of the money that he [has] stolen away—easy to be generous
with opm [other people's money]!"

After
considering the parties' submissions, the court denied defendants' anti-SLAPP
motion. As to the second and third
causes of action, the court found they were not subject to the anti-SLAPP
statute because they were not made in a public forum and did not involve issues
of public interest. With respect to the
first cause of action, the court found the claim was governed by the anti-SLAPP
statute, but that Meyers proved a probability of prevailing on the merits.

Defendants
appeal.

DISCUSSION

I. Anti-SLAPP Statute Legal Standards

Under section
425.16, a court "shall" grant a defendant's motion to strike a cause
of action "arising from" an act "in furtherance of" the
defendant's constitutional petition or free speech rights unless the plaintiff
establishes a probability of prevailing on the claim. (§ 425.16,
subd. (b)(1).) To promote participation in matters of public
significance, courts must construe this statute "broadly" in favor of
the moving party. (§ 425.16, subd. (a).)

In ruling on an
anti-SLAPP motion, the trial court engages in a two-step process. (Taus
v. Loftus (2007) 40 Cal.4th 683, 703.) First, the court decides
whether the defendant has met its burden to show the challenged cause of action
is one arising from constitutionally protected activity as defined in the
statute. (Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 67.) Second, if
this showing has been made, the court must determine whether the plaintiff has
met its burden to show a probability of prevailing on the claim. (Ibid.)

To
satisfy the second prong, " 'the plaintiff "must demonstrate
that the complaint is both legally sufficient and supported by a sufficient name="SR;10132">prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the plaintiff is
credited." [Citations.] For purposes of this inquiry, "the trial
court considers the pleadings and evidentiary submissions of both the plaintiff
and the defendant . . . ." ' " (Hawran
v. Hixson (2012) 209 Cal.App.4th 256, 273.) Although " ' "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 name="sp_4041_274">name="citeas((Cite_as:_209_Cal.App.4th_256,_*2">defendant's evidence
supporting the motion defeats the plaintiff's attempt to establish evidentiary
support for the claim."
[Citation.] In making this
assessment it is "the court's responsibility . . . to
accept as true the evidence favorable to the plaintiff. . . ." [Citation.]
The plaintiff need only establish that his or her claim has "minimal
merit" [citation] to avoid being stricken as a SLAPP.' [Citations.]" (Id.
at pp. 273-274.)

On appeal, we
engage in the same analysis as the trial court and we apply a de novo review
standard. (See Annette F. v. Sharon S. (2004) 119 Cal.App.4th
1146, 1159.)

II. Defamation Legal Principles

A defamation
claim "requires proof of a false and unprivileged publication that exposes
the plaintiff 'to hatred, contempt, ridicule, or obloquy, or which causes him
[or her] to be shunned or avoided, or which has a tendency to injure him [or
her] in his occupation.' " (>McGarry v. University of San Diego
(2007) 154 Cal.App.4th 97, 112 (McGarry).) "[T]o state a defamation claim that
survives a First Amendment challenge, [t]he plaintiff must present evidence of
a statement of fact that is provably false." (Seelig
v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809 (>Seelig); Milkovich v. Lorain Journal
Co. (1990) 497 U.S. 1, 20.)

"Statements
do not imply a provably false factual assertion and thus cannot form the basis
of a defamation action if they cannot ' "reasonably [be] interpreted as
stating actual facts" about an individual.' [Citations.]
Thus, 'rhetorical hyperbole,' 'vigorous epithet[s],' 'lusty and
imaginative expression[s] of . . . contempt,' and language
used 'in a loose, figurative sense' have all been accorded constitutional
protection. [Citations.]" (Ferlauto
v. Hamsher (1999) 74 Cal.App.4th 1394, 1401 (Ferlauto).) "The
dispositive question . . . is whether a reasonable trier of fact could conclude
that the published statements imply a provably false factual
assertion." (Seelig, supra, 97 Cal.App.4th at p. 809.)

"To
ascertain whether the statements in question are provably false factual
assertions, courts consider the ' "totality of the circumstances." ' " (Seelig,
supra, 97 Cal.App.4th at p. 809.) " ' "First, the
language of the statement is examined.
For words to be defamatory, they must be understood in a defamatory
sense. . . . [¶] Next, the context in which the statement was
made must be considered. . . .
[¶] This contextual analysis
demands that the courts look at the nature and full content of the
communication and to the knowledge and understanding of the audience to whom
the publication was directed." ' " (Id. at
pp. 809-810; see Balzaga v. Fox News
Network, LLC (2009) 173 Cal.App.4th 1325, 1337-1338 (Balzaga).)

"This
crucial question of whether challenged statements convey the requisite factual
imputation is ordinarily a question of law for the court." (Seelig,
supra, 97 Cal.App.4th at p. 810.)
The issue is " 'whether a reasonable fact finder could
conclude the published statement declares or implies a provably false assertion
of fact . . . .' " (>McGarry, supra, 154 Cal.App.4th at p.
113; see Summit Bank v. Rogers (2012)
206 Cal.App.4th 669, 696 (Summit Bank).) " 'Only once the court has
determined that a statement is reasonably susceptible to such a defamatory
interpretation does it become a question for the trier of fact whether or not
it was so understood.' . . ." (Summit
Bank, supra, 206 Cal.App.4th at p. 696.)
If the statement is susceptible of both an innocent and a libelous
meaning, the jury must decide how the statement was understood. (McGarry,
supra, 154 Cal.App.4th at p. 113.)

III. Analysis

The
record before us supports that the word "grifter" can be interpreted
in a defamatory sense. The word
"grifter" is slang and has various meanings, including "a
swindler, dishonest gambler, or the like."
(Random House Unabr. Dict. (2d ed. 1993), p. 840.) Based on dictionary definitions and Dr.
Finegan's analysis of the term's common usage, there is a factual basis for
concluding that an average reader of the Sailing Anarchy Web site would
understand the word "grifter" means someone who is false or dishonest,
and specifically a "scam artist" or a "con artist," who
obtained his money through illicit means or by trickery.

On appeal,
defendants do not challenge this conclusion, but argue that when considering
the language in context of the entire photograph and caption, a reasonable
reader of the Sailing Anarchy Web site would not interpret the term as stating
actual facts about Meyers. They say
"the totality of the photo caption and the context of the Sailing Anarchy
website and its readership make abundantly clear that the term 'grifter' was
used in a satirical, hyperbolic sense, and not as an assertion of fact that the
readership would reasonably be expected to believe to be true." They argue that because the photograph caption
contains many satirical and sarcastic references (e.g., "assert[ing] that
Mr. Meyers' body is the ballast system for the Alinghi racing yacht, that Mr.
Meyers adds 50 tons (100,000 pounds) of righting moment to the yacht, that Mr.
Meyers ate two of the Alinghi crew members . . ."), no reasonable person
would believe anything in the article is true.


We
agree that in evaluating a defamation claim, the alleged defamatory statement
must be read in context. " ' "This contextual
analysis demands that the courts look at the nature and full content of the
communication and to the knowledge and understanding of the audience to whom
the publication was directed.
[Citation.] ' "[T]he
publication in question must be considered in its entirety; '[i]t may not be
divided into segments and each portion treated as a separate unit.' [Citation.]
It must be read as a whole in order to understand its import and the
effect which it was calculated to have on the reader [citations], and construed
in the light of the whole scope [of the publication]. [Citation.]" ' " ' " (Balzaga,
supra, 173 Cal.App.4th at p. 1338.)

But when
interpreting the phrase "multi-millionaire grifter" under these
principles, we do not agree with defendants that the only reasonable
interpretation is that the accusation was merely hyperbole and/or a
"joke." Although the primary
thrust of the article was to satirize or poke fun at Meyers's body size, there
are also separate references to Meyers's wealth and his plan to
"infuse . . . much-needed capital" into the
Alinghi sailing syndicate. It is in this
specific context that the "grifter" comment was made. As Professor Finegan points out, these
financial references were communicated using terms of an objective nature and
thus could be taken as a serious charge by a reasonable reader. Moreover, the "multi-millionaire
grifter" accusation is substantively unrelated and unnecessary to the
jokes about Meyers's weight, suggesting that the grifter charge was not part of
the sarcasm directed at Meyers's physical appearance. And to the extent there is a connection, the
weight jokes underscore the idea that Meyers is an untrustworthy, unsavory
individual who is associated with criminal
activity. As Professor Finegan
noted, Jabba the Hutt is a Star Wars movie character who is popularly known as
a " 'crime lord and gangster who employs a retinue of criminals,
bounty hunters, smuggle[r]s, assassins, and bodyguards to operate his criminal
empire.' "href="#_ftn1"
name="_ftnref1" title="">[1] (Underscoring omitted.)

The conclusion
that a reader could reasonably believe the "grifter" charge was a
true factual statement is bolstered by the evidence showing that when Tempesta
(the Web site publisher) was asked why he accused Meyers of being a grifter,
Tempesta allegedly responded that Meyers is a " 'white collar
criminal' " who has " 'stolen millions of
dollars.' " Meyers also
presented evidence showing that Tempesta made a similar charge in an email to
another sailing enthusiast. Although
there is no evidence that readers of the Web site article heard or read
Tempesta's private comments, these remarks support an inference that because
the article's publisher was intending to communicate the criminal charge, such
an interpretation of the "grifter" term would be reasonable. Tempesta has denied making the "white
collar criminal" statement, but for purposes of our evaluation of an
anti-SLAPP ruling, we must assume the truth of the opposing party's
evidence.

In urging us to
reverse the court's ruling, defendants rely on a decision that is factually
distinguishable. (Ferlauto, supra, 74 Cal.App.4th 1394.) In Ferlauto,
an attorney (Ferlauto) represented a movie director who brought an action
against a movie producer. (>Id. at p. 1397.) The movie producer later wrote a book in an
"exaggerated, irreverent and attention-grabbing style." (Id.
at p. 1398.) In the book, the movie
producer repeatedly criticized the lawsuit and Ferlauto for bringing the
action. (Ibid.) The producer referred
to Ferlauto variously as " 'Kmart
Jonnie Cochran,' "
" ' "creepazoid attorney," ' " and " 'loser wannabe lawyer,' " and stated that the lawsuit was " ' "spurious" ' " and not an
ethical one. (Ibid.) Ferlauto brought a
defamation suit against the producer/author, asserting that these statements
implied that he is an unethical attorney who abuses legal procedures to harass
his opponents. (Ibid.)

The >Ferlauto court held that a reasonable
person would not interpret the alleged defamatory statements as provable
factual assertions. (>Ferlauto, supra, 74 Cal.App.4th at pp.
1401-1406.) The court reasoned that the
statements were "classic rhetorical hyperbole" (id. at p. 1404), particularly because they were made by a
participant in a lawsuit against an adversarial opponent. (Id.
at pp. 1401-1403.) The court
explained: "Part of the totality
of the circumstances used in evaluating the language in question is whether the
statements were made by participants in an adversarial setting" and that
when discussing her opponent's attorney "no reader would expect [the
producer] to suddenly change her tone . . . .
A reasonable reader would expect exactly what [the author] provided—her
highly partisan opinions of the lawsuit and her opponents, including attorney
Ferlauto." (Id. at pp. 1401, 1402-1403.)


Ferlauto stands for the
proposition that when statements are used in an adversarial setting, the
comments are likely to be interpreted as opinion or rhetorical hyperbole
incapable of being proved true or false.
However, in this case, there is no similar evidence of an adversarial
relationship between Meyers and defendants in which a reasonable reader of the
Web site would expect the "multi-millionaire grifter" assertion to be
a "highly partisan opinion[ ]" between two opponents. (Ferlauto,
supra, 74 Cal.App.4th at p. 1403.)
At most, defendants presented evidence showing that the purpose of the
Sailing Anarchy Web site is to provide an informal, "edgy," and
"provocative" forum for discussing sailing issues. However, this evidence in and of itself does
not show that a reader of the Web site would be likely to understand that the
"grifter" accusation made against Meyers should be interpreted as
merely editorial opinions from a partisan adversary rather than an assertion of
objective fact. To the extent additional
evidence exists on these issues, these facts may be relevant in any later
proceedings on this issue. But in ruling
on the anti-SLAPP appellate issues, we are limited to the evidentiary materials
in the record before us.

We also find
defendant's reliance on a Louisiana federal
court case to be unhelpful. (>Russo v. Conde Nast Publications (E.D.La.
1992) 806 F.Supp. 603 (Russo).) In Russo,
the plaintiff brought a defamation action against the publisher of Gentlemen's
Quarterly magazine, based on an article asserting that a New Orleans
prosecution regarding a conspiracy to assassinate President Kennedy was flawed
and was based on "flimsy evidence."
(Id. at p. 604.) The article referred once to the plaintiff,
who had been a witness in the assassination-conspiracy trial, as an " 'insurance salesman-cum grifter.' " (Id. at p. 605, italics omitted.)
Based on that single reference, Russo sued the magazine publisher for
defamation.

Applying
Louisiana law, the Russo court found
the grifter charge was not defamatory per se because it was subject to many
meanings. (Russo, supra, 806 F.Supp. at p. 608.) The court also stated, in dicta, that the
phrase was not "defamatory as a matter of law" because the grifter
word is "informal in nature, and does not make a specific charge of any
kind concerning [the plaintiff]." (>Id. at p. 609.) In this regard, the court commented: "Although there is no question but that
the [grifter] term does not constitute flattery as the various and sundry slang
definitions do not conjure up complimentary innuendos, it is not in this
Court's opinion a defamatory statement in and of itself." (Ibid.) The court additionally found that even if the
word was defamatory, the charge was true as the plaintiff's "role in
history is that of a testimonial con man."
(Ibid.)

We agree with
the district court's conclusion that the word "grifter" can be
subject to various interpretations. And
we have no quarrel with the Russo court's
conclusion that in the context of the magazine article, the word did not
necessarily have a defamatory meaning.
But we are presented here with different facts and a different factual
and procedural context.

The issue here
is whether the accusation that Meyers is a "grifter" could have been
construed by a reasonable reader of the Sailing Anarchy Web site to suggest a
provably true fact. Viewing the
"multi-millionaire grifter" remark in context, a reader of the
article on the Web site could reasonably find that the author was attempting to
communicate a true statement, i.e., that Meyers gained his wealth illicitly
and/or that he is a scam artist who has engaged in fraud or trickery to obtain
money or goods. Although most of the
caption reflects creative expressions of contempt and ridicule regarding
Meyers's weight, other portions of the article refer to the more serious matter
of Meyers's wealth and could be reasonably interpreted as accusing Meyers of
engaging in fraud or trickery to obtain this wealth. On the record before us, Meyers presented a
sufficient prima facie case to show that the phrase could be construed in a
defamatory manner. Once we have made
that determination, "it become[s] a question for the trier of fact whether
or not it was so understood." (>Summit Bank, supra, 206 Cal.App.4th at
p. 696.)href="#_ftn2" name="_ftnref2" title="">[2]

The court did
not err in finding Meyers had a probability of prevailing on his claim within
the meaning of section 425.16.

DISPOSITION

Order affirmed. Appellants to
pay respondent's costs on appeal.







HALLER, J.



WE CONCUR:







McCONNELL,
P. J.







HUFFMAN, J.