Newdow v. Miles

Filed 10/24/06 Newdow v. Miles CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

This is an appeal from an order of the Contra Costa County Superior Court denying appellant Miles’s motion to strike (SLAPP motion) filed under Code of Civil Procedure section 425.16 (section 425.16) and triggered by respondent Newdow’s libel action against him. The superior court ruled that, although Newdow was clearly a public figure and the issue involved one of public interest, Newdow “has produced sufficient evidence” to show that he may have a legally cognizable claim. We agree with the trial court and hence affirm its order.

II. FACTUAL AND PROCEDURAL BACKGROUND

On July 4, 2002, appellant Miles, allegedly an “interdenominational chaplain“ with a “public” ministry, wrote an article on an Internet website which, among other things, charged that respondent Newdow, in connection with his now-famous federal lawsuit challenging the wording of the Pledge of Allegiance, had made a specific statement about the impact of the pledge on his daughter. The Miles article included the following statement: “The reference ‘under God,’ claimed Newdow, ‘that my daughter was forced to recite, caused her emotional damage, stress, anxiety and a sense of being left out. I’m an American citizen. I don’t like my rights infringed upon by my government,’ he said.”

The Miles article then continued: “He lied to the court under oath. This is a crime. The public must demand that The [sic] 9th U.S. Circuit Court of Appeals in San Francisco charge Michael Newdow with perjury and punish him to the full extent of the law.”

In July 2003, Newdow filed a libel action in the Contra Costa County Superior Court against Miles and the two owners/managers of the Internet site on which his article appeared. In his complaint, Newdow quoted the statement Miles had alleged he made concerning his daughter and then continued: “The alleged quotation used in the above was never uttered by Plaintiff, and--to the best of his knowledge--was a complete fabrication, made maliciously and with knowledge of its falsity.” The complaint then quoted the “ ‘He lied to the court under oath’ “ part of the Miles’ article and then alleged: “This article--with its fallacious premise and numerous false allegations--was cited by many other news organizations and published to a wide audience not only throughout California, but throughout (and likely beyond) the Nation. Defendants had full knowledge and expectation that such citations and publications would occur.”

The two Internet defendants were later dismissed with prejudice, but appellant Miles, after being served by publication, filed a demurrer and a SLAPP motion. The court overruled the demurrer and denied the SLAPP motion. In so doing, it observed that, although the parties agreed “that the speech at issue is constitutionally protected and that plaintiff is a public figure requiring him to prove malice on the part of defendant by clear and convincing evidence,” Newdow had “produced sufficient evidence to meet this standard.”

Miles filed a timely notice of appeal. III. DISCUSSION

Section 425.16, subdivision (b)(1), provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution 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.”

When ruling on a SLAPP motion under this section, a court must engage in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) “We independently determine whether a cause of action is based upon activity protected under the statute, and if so, whether the plaintiff has established a reasonable probability of prevailing. [Citation.] In doing so, we consider ‘ “the pleadings, and supporting and opposing affidavits stating the facts upon which liability or defense is based.” ‘ [Citations.]” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 163-164; see also Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)

Inasmuch as Miles concedes that Newdow’s libel complaint implicates a matter of “public interest,” the only issue properly^[1] before us is his claim that the second prong of section 425.16 is not satisfied because the lower court “made no factual findings as to what clear and convincing evidence Newdow had presented to satisfy his significant burden of proof to defeat” the SLAPP motion.

Our colleagues in Division One of this district have recently explained the review process concerning the second prong of a SLAPP motion: “A plaintiff’s burden under section 425.16 ‘ “is similar to the standard used in determining motions for nonsuit, directed verdict, or summary judgment.” ‘ The plaintiff is required to demonstrate that the complaint is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the plaintiff’s evidence is credited. [Citation.] The court considers the pleadings and the supporting and opposing affidavits stating facts on which the liability or defense is based, and the motion to strike should be granted if, as a matter of law, the properly pleaded facts do not support a claim for relief. [Citation.]” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 901 (Wilbanks).)

However, “[a] motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment [citation]. In resisting such a motion, the plaintiff need not produce evidence that he or she can recover on every possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny the special motion to strike and allow the case to go forward.” (Wilbanks, supra, 121 Cal.App.4th at p. 905.)

A showing that “the suit is viable” (Wilbanks, supra, 121 Cal.App.4th at p. 905) is not, however, as “significant” a hurdle as Miles suggests. As we noted in Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919: “ ‘[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have “ ‘stated and substantiated a legally sufficient claim.” ‘ [Citations.] “Put another way, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ‘ [Citations.]”

Such is not a huge burden, as the Wilbanks court stressed: “An anti-SLAPP-suit motion is not a vehicle for testing the strength of a plaintiff’s case, or the ability of a plaintiff, so early in the proceedings, to produce evidence supporting each theory of damages asserted in connection with the plaintiff’s claims. It is a vehicle for determining whether a plaintiff, through a showing of minimal merit, has stated and substantiated a legally sufficient claim. [Citations.]” (Wilbanks, supra, 121 Cal.App.4th at p. 906, emphasis supplied.) The pregnant phrase “minimal merit” derives from several of our Supreme Court’s recent decisions on the application of section 425.16. The first such case was Equilon, where a unanimous court briefly summarized the anti-SLAPP statute’s two-pronged test to be “‘arising from’ and minimal merit.” (Equilon, supra, 29 Cal.4th at p. 66.)

The same day the court issued Equilon, it also decided Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier). In that decision, the court repeated the “minimal merit” term several times. For example, it summed up the law applicable to SLAPP actions in this succinct sentence: “Only a cause of action that satisfies both prongs of the anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even minimal merit--is a SLAPP, subject to being stricken under the statute.” (Id. at p. 89.) And the concluding sentence of the substantive portion of the majority’s opinion then directed the court of appeal, on remand, to “consider whether plaintiffs’ . . . claims have the minimal merit required to survive an anti-SLAPP motion.” (Id. at p. 95, emphasis supplied.)

Although Navellier used the “minimal merit” language more often than Equilon, it nonetheless referenced Equilon for a definition of that phrase. The latter decision summarized the requirements of the second prong of section 425.16 thusly: “[Section 425.16] subjects to potential dismissal only those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits (§ 425.16, subd. (b)), a provision we have read as ‘requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim’ [Citation.] So construed, ‘section 425.16 provides an efficient means of dispatching, early on in a lawsuit, [and discouraging, insofar as fees may be shifted,] a plaintiff's meritless claims.’ [Citation.]” (Equilon, supra, 29 Cal.4th at p. 63, emphasis supplied; see also to the same effect: Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 [“the anti-SLAPP statute requires only ‘a minimum level of legal sufficiency and triability’ “] and Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 438, fn. 5; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

On July 27 of this year, our Supreme Court issued two more decisions interpreting and applying the anti-SLAPP statute, Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260 (Soukup) and Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley). Both decisions were unanimous^[2] and both used the “minimal merit” term to describe the second prong of the anti-SLAPP statute. (See, e.g., Soukup, supra, at pp. 279, 291 & 296, and Flatley, supra, at pp. 318 & 320.) Neither decision purported to modify that standard in the slightest; indeed, the Soukup court expanded upon it in these words: “To establish a probability of prevailing, the plaintiff ‘must demonstrate that the complaint is both legally sufficient and supported by a sufficient 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 [citation]; 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.] 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’ [citing Navellier] to avoid being stricken as a SLAPP. [Citations.]” (Soukup, supra, 39 Cal.4th at p. 291.)

With regard to the “minimal merit” standard, Miles first contends that his statements concerning Newdow were not defamatory. The answer to this argument is relatively simple: in his publication attacking Newdow, he used the word “perjury” no less than six times^[3] and unmistakably asserted that Newdow had committed that offense. It is elemental that a charge of perjury, a crime,^[4] is libelous per se. (See Civ. Code, §§ 45a & 46; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1136; 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 542.) Further, in his libel complaint against Miles, Newdow specifically cited Miles’ charges that he had committed perjury in his representations to the Ninth Circuit Court of Appeals.

Miles next contends that the “minimal merit” standard is inapplicable in libel actions, particularly those regarding “public figures” such as Newdow, because in such actions the plaintiff is required to show malice and to do so by clear and convincing evidence. (See New York Times v. Sullivan (1964) 376 U.S. 254, 279-280 (Sullivan).) In so arguing, he relies on three decisions of our sister courts: Beilenson v. Superior Court (1996) 44 Cal.App.4th 944; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260; and Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146 (Annette F.). We disagree regarding the pertinence of these cases for several reasons. First of all, none of these decisions says--or even implies--that the “minimal merit” standard is inapplicable to libel actions. Second, none involved allegations of deliberate misquotation of the plaintiff combined with charges of a crime such as perjury. Third, two of the three (Beilenson and Rosenaur) involved oral and/or written statements made in the course of political campaigns, while the third involved statements made by one party to an adoption proceeding against the other party to it, thus triggering the exception to the anti-SLAPP statute provided by section 425.16, subdivision (e)(2). (See Annette F., supra, 119 Cal.App.4th at pp. 1160-1161.) In short, none of the three cases relied upon by Miles provide an exception to--or allow avoidance of--the requisite “minimal merit” test.

Both regarding the applicability of the Sullivan test and whether Newdow’s complaint has the requisite “minimal merit,” we are substantially aided by a decision of the United States Supreme Court in a rather famous libel action, Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 (Masson). In that case, the court reversed a ruling of the United States Court of Appeals for the Ninth Circuit which, in turn, had affirmed a ruling of a California federal district court granting summary judgment to the author and publishers of a New Yorker magazine article containing considerable unflattering material concerning the plaintiff, a controversial non-Freudian psychoanalyst. Relying substantially on First Amendment grounds, the court ruled that, particularly as to passages in the New Yorker article allegedly quoting the plaintiff, the lower court erred in ruling that, as a matter of law, he could not show malice in the publication of those alleged quotations. In so holding, the court ruled that a critical fact justifying its reversal was that the article contained six alleged quotations of Masson’s statements to the author which Masson both denied making and claimed were defamatory.

Justice Kennedy, writing for a seven-justice majority, specifically addressed the relevance of quotation marks in this context: “In general, quotation marks around a passage indicate to the reader that the passage reproduces the speaker’s words verbatim. They inform the reader that he or she is reading the statement of the speaker, not a paraphrase or other indirect interpretation by an author. By providing this information, quotations add authority to the statement and credibility to the author’s work. Quotations allow the reader to form his or her own conclusions and to assess the conclusions of the author, instead of relying entirely upon the author’s characterization of her subject. A fabricated quotation may injure reputation in at least two senses, either giving rise to a conceivable claim of defamation. First, the quotation might injure because it attributes an untrue factual assertion to the speaker. An example would be a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not. Second, regardless of the truth or falsity of the factual matters asserted within the quoted statement, the attribution may result in injury to reputation because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold.” (Masson, supra, 501 U.S. at p. 511.)

The majority opinion then noted that, in some instances, “quotations do not always convey that the speaker actually said or wrote the quoted material” and that, in those cases, “a reader will not reasonably understand the quotations to indicate reproduction of a conversation that took place.” (Masson, supra, 501 U.S. at p. 512.) It then continued: “The work at issue here, however, as with much journalistic writing, provides the reader no clue that the quotations are being used as a rhetorical device or to paraphrase the speaker’s actual statements. To the contrary, the work purports to be nonfiction, the result of numerous interviews. At least a trier of fact could so conclude. The work contains lengthy quotations attributed to petitioner, and neither Malcolm [the article’s author and a defendant] nor her publishers indicate to the reader that the quotations are anything but the reproduction of actual conversations. . . . These factors would, or at least could, lead a reader to take the quotations at face value. A defendant may be able to argue to the jury that quotations should be viewed by the reader as nonliteral or reconstructions, but we conclude that a trier of fact in this case could find that the reasonable reader would understand the quotations to be nearly verbatim reports of statements made by the subject.” (Id. at p. 513.)

The majority opinion rejected the basis of the Ninth Circuit’s affirmation of the grant of summary judgment, i.e., that the challenged quotations were a “rational interpretation” of plaintiff Masson’s actual statements. It said: “The protection for rational interpretation serves First Amendment principles by allowing an author the interpretive license that is necessary when relying upon ambiguous sources. Where, however, a writer uses a quotation, and where a reasonable reader would conclude that the quotation purports to be a verbatim repetition of a statement by the speaker, the quotation marks indicate that the author is not involved in an interpretation of the speaker’s ambiguous statement, but attempting to convey what the speaker said. This orthodox use of a quotation is the quintessential ‘direct account of events that speak for themselves.’ [Citation.] More accurately, the quotation allows the subject to speak for himself.” (Masson, supra, 501 U.S. at p. 519.)

Based on these principles, the majority held that summary judgment should not have been granted as to libel causes of action based on five of the six misquotations^[5] attributed to Masson in the New Yorker article.^[6]

Masson also provides another answer to the argument Miles makes based on the Sullivan standard. As the court’s opinion expressly noted, the plaintiff in Masson was, himself, a public figure. But the court held that, after Sullivan, what is required to sustain a defamation action by such a pubic figure is “publication of a statement with knowledge of falsity or reckless disregard as to truth or falsity.” (Masson, supra, 501 U.S. at pp. 510-511.) That, as the majority explained in the passages quoted earlier, is shown by a substantial and injurious misquotation of a plaintiff in a publication. We find the reasoning of Masson directly applicable here for the simple reason that both cases involve “public figure” plaintiffs and allegations of substantial and injurious misquotations of them, misquotations which form a major part of the basis of the libel action.

As noted in our statement of facts, the two interrelated and central allegations in Newdow’s libel complaint against Miles are that (1) the latter had published an Internet article which included an alleged quotation of Newdow to the effect that the reference to “God” in the Pledge of Allegiance, which his daughter was “forced to recite, caused her emotional damage, stress, anxiety and a sense of being left out“ and (2) those alleged statements by Newdow to the federal court constituted “perjury” (a word repeated six times in Miles’ Internet statement) because there was no such impact upon the daughter due to their allegedly detached relationship.

Under oath, Newdow denied making the quoted statement regarding his daughter and further alleged that Miles’ use of that alleged quotation was “a complete fabrication, made maliciously and with knowledge of its falsity.” Under the holding of Masson, these allegations coupled with the text of Miles’ Internet publication provide the “minimal merit” required to deny a SLAPP motion under section 425.16.

IV. DISPOSITION

The order appealed from is affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Lambden, J.

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^[1] Rather remarkably, the parties spend many pages debating the contention, first made by Newdow in his September 22, 2005, brief to us, that the lower court erred when, by its order of January 20, 2005, it vacated the default and default judgment obtained by Newdow when Miles failed to answer the complaint after being served by publication. Newdow addresses this subject in nine pages of his brief and Miles replies in no less than 24 pages of his reply brief. None of this is relevant for the simple reason that, inasmuch as Newdow never filed a notice of appeal (much less a timely one) from the order vacating Miles’ default and setting aside the default judgment, that issue is not before us. “[A]n order vacating a default judgment and setting aside the default is appealable as an order after a final judgment.” (Rodrigues v. Superior Court (2005) 127 Cal.App.4th 1027, 1032; see also, Code Civ. Proc., § 904.1, subd. (a)(2), and County of Stanislaus v. Johnson (1996) 43 Cal.App.4th 832, 834; Elsea v. Saberi (1992) 4 Cal.App.4th 625, 628.) “[A]s a general rule, respondents who fail to file a cross-appeal cannot claim error in connection with the opposing party’s appeal.” (1 Eisenberg et al., Civil Appeals and Writs (The Rutter Group 2004) 8:195, p. 8-123; see also Estate of Powell (2000) 83 Cal.App.4th 1434, 1439; Building Industry Assn. v. City of Oceanside (1994) 27 Cal.App.4th 744, 758, fn. 9; California State Employees’ Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7.) Code of Civil Procedure section 906, which Newdow asserts permits such an appeal, clearly does no such thing per its final sentence: “The provisions of this section do not authorize the reviewing court to review any decision or order from which an appeal might have been taken.”

^[2] Justice Werdegar filed a brief concurring opinion in Flatley.

^[3] Interestingly, the full text of Miles’ Internet statement regarding Newdow was supplied to the lower court by Miles, not Newdow.

^[4] See Penal Code section 118.

^[5] Interestingly, the two concurring and dissenting justices (Justices White and Scalia) would have gone further than the majority and reversed as to all six of the misquotations. They disagreed with the majority’s holding that one of the misquotations “did convey the gist” (Masson, supra, 501 U.S. at p. 524) of what Masson actually said and the theoretical basis upon which the majority so held. In short, therefore, the quoted holdings of majority are, in actuality, those of a unanimous court; Justices White and Scalia simply argued for a stricter application of them. (Id. at pp. 525-528.)

^[6] To the same effect as Masson regarding significant misquotations of public figures, see also: Crane v. Arizona Republic (9th Cir. 1992) 972 F.2d 1511, 1523-1524, and Anderson v. Augusta Chronicle (S.C.Ct.App. 2003) 585 S.E.2d 506, 512-521.