Spelling v. Sesions

Filed 2/25/08 Spelling v. Sesions CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County. William J. Highberger, Judge. Affirmed.

Greenberg Glusker Fields Claman & Machtinger, Robert S. Chapman and Aaron J. Moss for Plaintiff and Appellant.

Fredrickson, Mazeika & Grant, Timothy J. Grant and Michelle I. Morelli for Defendants and Respondents.

_______________________

A woman leveled accusations of sexual harassment against her famous employer. The famous employer asked for corroboration, and the womans lawyer sent a sexual harassment survey to 600 people who may have worked with that employer. The lawyer also responded to press inquiries about the survey. When the famous employer sued the womans lawyer for defamation, the trial court granted the lawyers special motion to strike under Code of Civil Procedure section 425.16. We affirm because, as a public figure, the famous employer did not establish a prima facie defamation case against the lawyer.

I

Aaron Spelling, now deceased, was a well known producer. The Spelling brief in this court said he has long been considered an entertainment industry icon. He concededly is a public figure.

In later life Spelling needed nursing care. His wife, appellant Carole Gene Spelling (presented in the briefing as Candy Spelling), secured private nursing for his around-the-clock care. In November 2004 Candy Spelling hired nurse Charlene Richards. The Spellings had Richards sign a confidentiality agreement.

Richardss work required her to stay in Aaron Spellings bedroom overnight. Richards claimed Spelling sexually harassed her while they were alone there. Richards also said Spelling bragged about many past sexual relations with women actors seeking work, and that Spelling said she was the one woman in his life who had ever told him no.

Candy Spelling fired Richards on April 24, 2005 for breaching the confidentiality agreement. According to Candy Spelling, Richards was disclosing private facts to others about the Spellings home life.

Richards retained defendants and respondents Don Sessions and the law firm of Sessions & Kimbal (collectively Sessions) to bring a sexual harassment lawsuit against Aaron Spelling. Before filing Richardss lawsuit, Sessions sent a 39-page demand letter to the Spellings counsel on July 12, 2005. The lawyers for Richards and the Spellings sent negotiation letters back and forth before filing anything with the courts. On November 1, 2005, the Spellings lawyer wrote Sessions that your clients corroborating evidence neither corroborated her position nor reflected well on her veracity. You told me that you could get additional corroborating evidence. I told you that before my clients would participate in a mediation, we would need to see that evidence and be given an opportunity to investigate it. . . . You told me that you would obtain the additional evidence and get it to me. [] You and your client are, of course, free to proceed with whatever steps you wish. However, if you are serious about wanting to resolve this matter, get me the information that you promised, let me examine it, and we can then schedule a mediation.

On November 7, 2005, Sessions replied, We dont understand your clients approach. You push us to find confirming witnesses. On November 11, 2005, Sessions complained Spelling had not responded to his request for a very private and confidential mediation and that, [a]t your insistence, and in preparation for the filing of the lawsuit, we are proceeding ahead to contact other witnesses.

On November 11, 2005, Sessions sent a letter and survey to 600 actors. The 600 target actors were women, except for a man named Chick. These actors had received acting credit on projects for which Aaron Spelling also had received credit. Sessions got contact information about the actors managers, agents, or publicists from the internet. Sessions addressed each letter to the actor personally, with the heading personal and confidential. The outside of the envelope directed, to be opened by the addressee only. The list included actors who had not worked with a Spelling production for decades.

Sessions addressed the one-page cover letter to Current or Former Employees of Aaron Spelling. The subject matter was Survey on Sexual Harassment by Aaron Spelling. As Spelling recounts it in his opening brief, [t]he Cover Letter described the parallels between Richards and the recent movie North Country which tells the true story of the deplorable plight of women who first fought sexual harassment in the workplace. This letter continued: [l]ikewise, we represent a former female employee of Aaron Spelling who alleges that he sexually harassed her. The letter recounted Aaron Spellings denial of this charge.

The letter added: Attached is a survey tracking if you did, or even did not, experience any sexual harassment by him in the past. We are sending this letter to hundreds of current and former employees of Aaron Spelling or his companies. All we seek is the truth. Please send it back to us.

Your input is important for many reasons: 1) Prevent harassment of other victims. Confirmation by you of a similar experience will help prevent harassment in the future. 2) Justice. He, if guilty, needs to be accountable for his actions despite his wealth and power. 3) Help Mr. Spelling. Assist Mr. Spelling if you did not experience such harassment. 4) Limit your involvement. Your input may help us get our matter resolved privately now, without any public litigation.

On the second and final page, the survey listed three questions. The first was, Did you ever experience any sexual harassment by Aaron Spelling in his comments, requests, actions, etc? If yes, please describe such improper words or actions. The second question asked, Do you know if anyone else has experienced any sexual harassment by Aaron Spelling? If yes, please describe such improper words or actions and the victims name if possible. Question three was Any suggestions or help you can give us?

On December 5, 2005, a publication called Globe printed an article about the survey called Sex Scandal Rocks Hollywood. The cover page of Globe had these words: TOP TV STARS CAUGHT UP IN SEX SCANDAL. Dozen of actresses to be questioned. To the right were three pictures, captioned Heather Locklear, Teri Hatcher, and Farah Fawcett. In the middle of the cover page was a large picture of Bill Clinton with the words: CLINTON DRUG CRISIS. Hes popping pills to battle DEPRESSION. The last words on the cover page were: Brad & Angelina: Its falling apart. To the left was a smaller inset picture showing two people and the words, SHES TOO BOSSY!

Sessions swore without contradiction that he did not provide his cover letter and survey to any media outlet, including Globe. He likewise declared he did not direct or intend that anyone would send this material to any media outlet, and that he did not initiate any contact with Globe or any other media outlets. Rather, Globe contacted Sessions. I told the reporter that my clients and my reasons for sending the letter and survey were to find additional people who experienced or were witnesses to sexual harassment by Mr. Spelling. I also informed them that we were attempting to resolve the dispute between my client and the Spellings.

The two-page Globe story included the following statements. One of Hollywoods wealthiest and most powerful producers and a host of big-name beauties who worked for him are tangled in a shocking sex scandal that has the showbiz world reeling. . . . Attorney Don Sessions, who represents Spellings accuser, has sent out a shocking two-page letter thats turning up in the mailboxes of some of Hollywoods biggest stars. GLOBE has obtained a copy of the two-page letter . . . , sent to an actress who worked on one of Spellings shows. . . .

The article showed a picture of Sessionss cover letter to the survey. Underneath this picture was an enlarged quotation: We are hoping other witnesses who may have suffered sexual harassment by Aaron Spelling will come forward. [] SAYS ATTORNEY. In context, readers would conclude ATTORNEY meant Sessions.

The article also quoted Sessions by name: We want to find additional people who may have experienced or witnessed sexual harassment from Aaron Spelling. . . . If guilty he needs to be held accountable, despite his wealth and power. . . . Sessions tells GLOBE he is attempting to broker a deal with Spelling, who is worth an estimated $350 million and lives in a 56,000-square-foot home, the largest single-family residence in California. [] I am trying to reach some kind of settlement, he says.

Globe quoted a Spelling spokesperson as saying, [t]hese accusations are absolutely false, and [w]e intend to sue her [Sessionss client] for defamation.

And sue they did. The Spellings sued both Richards and her lawyer Sessions, based on the survey, cover letter, and Sessionss comments in Globe. Defamation was the first cause of action. The Spellings second cause of action was against Richards alone and was for breach of contract, based on Richardss alleged disclosure of secret information in breach of the confidentiality agreement.

Richards and Sessions responded by filing Richardss sexual harassment complaint against the Spellings. They simultaneously filed a special motion to strike the Spellings lawsuit as strategic litigation against public policy a so-called anti-SLAPP or 425.16 motion. (Code Civ. Proc., 425.16; further statutory references are to the Code of Civil Procedure.) The Spellings opposed Richardss 425.16 motion and filed declarations by Candy Spelling, her assistants, a guard, a nurse, and by Spelling lawyers. Each swore, in essence, that Richardss claims of sexual harassment were false and unsubstantiated. Richards never complained of sexual harassment, they declared, and she always seemed upbeat, never distraught or upset. Aaron Spelling also submitted a declaration stating, I have absolutely no recollection of engaging in any of the conduct that [Charlene Richards] alleges.

On the first prong of the anti-SLAPP analysis, the Spellings conceded that Richardss and Sessionss statements arose from constitutionally protected activity. On the second prong of analysis, the trial court concluded the Spellings could not demonstrate a probability of prevailing on their defamation claim. The court ruled the litigation privilege protected Sessionss letter, survey, and comments quoted in Globe. The trial court thus granted Sessionss 425.16 motion on the Spellings defamation claim. Conversely, the trial court denied the 425.16 motion on the Spellings breach-of-contract claim against Richards. The court awarded attorneys fees and costs against Aaron Spelling and dismissed Sessions from the action.

The trial court ruled on April 17, 2006. Aaron Spelling died on June 23, 2006. Spellings counsel filed a notice of appeal on the anti-SLAPP ruling. The probate court appointed Candy Spelling executor of Aaron Spellings will, and she substituted into this appeal as the appellant. (We will refer to Aaron and Candy Spelling as Spelling, unless the context shows a more particular meaning.) Richards and Spelling settled with each other; Spelling dismissed Richards as a defendant and Richards dismissed her action against the Spellings. Because Richards is out of the case, the only remaining issue on appeal is whether the trial court was right to grant Sessionss 425.16 motion on Spellings defamation claim.

II

Settled law governs this dispute. Section 425.16 sets out two steps of analysis. First, the court decides whether the challenged cause of action arises from protected activity. Spelling concedes this point. On the second step, the court was to determine whether Spelling showed a probability of prevailing on the defamation claim. (E.g., Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)

In this second step of analysis, it was Spellings burden to demonstrate a probability of prevailing. To do so, Spelling had to state and to substantiate the elements of defamation. Spelling thus had to produce a prima facie showing of facts sufficient to sustain a favorable judgment if his evidence were credited. In deciding the question of potential merit, the trial court was to consider the pleadings and evidentiary submissions of both Sessions and Spelling. The court could not weigh the credibility or comparative probative strength of competing evidence. The court was to grant Sessionss 425.16 motion if, as a matter of law, Sessionss evidence supporting the motion defeated Spellings attempt to establish evidentiary support for Spellings defamation claim. In short, the trial courts job was to evaluate the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. (See Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) Whether Spelling established a prima facie case is a question of law. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)

The trial court found that Spelling could not make out a probability of succeeding on defamation against Sessions. Spelling challenges this finding. Thus this appeal concerns Spellings ability to establish a probability of proving that Sessions defamed him. We review de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)

The parties agree Aaron Spelling was a public figure, and special law governs defamation cases in this situation. To prevail on a defamation claim, Spelling must prove (1) that Sessions uttered statements that were false, and (2) that Sessions did so with actual malice. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81.) You speak with actual malice when you utter a knowingly false statement or when you have serious doubts as to [the statements] truth. (Ibid.) A public figure plaintiff must prove actual malice by clear and convincing evidence. (Ibid.)

We apply these legal rules to the facts of this case.

III

The trial court correctly granted Sessionss 425.16 motion. The basis for its ruling was the litigation privilege. There is a more prosaic basis for this result, and that is Spellings failure to offer a prima facie showing of a defamation case under the exacting rules for public figures. We can affirm the trial court judgment on any basis that is legally correct, whether or not the trial court adopted that rationale. Fully aware of this rule, the parties on appeal have briefed the issue of whether Spelling showed his defamation case had minimal merit.

We affirm on two independent grounds: falsity and actual malice. Spelling failed to establish a probability of showing Sessionss statements were false. Spelling also failed to establish a probability that Sessions knew his statements were false, or at least had serious doubts about their truth. For both reasons, Spelling failed to establish a probability of prevailing on his defamation claim.

A

The first issue is whether Sessions spoke defamatory words that were false. To analyze this issue, we take up each of Sessionss statements separately. There are three groups of statements. The first is what Sessions said in his cover letter and survey. The second is what Sessions said to the Globe reporter. The third topic stems from an English professors declaration. We take each in turn.

1

We begin with Sessionss cover letter and survey to the 600 actors. In essence Sessions told these 600 actors that Aaron Spelling had sexually harassed Charlene Richards. In the trial court, however, Spelling was unable to establish a probability of proving this statement false. In summary, Richards swore Spelling had sexually harassed her, and Spelling swore he did not recall. Spellings failure of memory could not prove Spelling did not harass. There were no other eyewitnesses. So there was only one witness claiming personal knowledge, which was Richards, who said Spelling did it. Spelling did not deny it. Thus Spelling failed to produce a prima facie showing of facts sufficient to sustain a favorable judgment if his evidence were credited.

We now proceed in more detail. Sessionss central statement in his cover letter and survey to the 600 actors was that we represent a former female employee of Aaron Spelling who alleges that he sexually harassed her. (Italics added.) The defamatory bite of this statement comes from the accusing implication that Aaron Spelling sexually harassed Charlene Richards. That accusation is the core of this case. We analyze this statement by summarizing the factual evidence before the trial court on the issue of whether Spelling in fact sexually harassed Richards.

Richardss declaration to the trial court swore Spelling had sexually harassed her. She wrote that her job duties included staying alone with Mr. Spelling in his bedroom overnight. Richards also wrote that her civil complaint detailed the harassment. That complaint described a catalogue of harassment by Spelling: touching her genitals, attempting to grab her breasts, exposing himself and masturbating in her presence, soliciting oral sex, offering money for sex, kissing her and placing his tongue in her mouth, attempting to hug her, and making sexual comments to her. This conduct was unwelcome and offensive to Richards.

In opposition, Spelling offered his own declaration. The relevant portion was two sentences long: I am aware of the allegations Charlene Richards has made against me concerning sexual harassment. I have absolutely no recollection of engaging in any of the conduct that she alleges. (Italics added.)

We accept as true (Soukup v. Hafif (2006) 39 Cal.4th 260, 291, quotation marks and citation omitted) Spellings claim he did not recall the many graphic sexual acts that Richards swore he committed. This presumably true statement I have absolutely no recollection did not contradict Richardss claim of harassment. The two declarations are consistent. She said he did it. He said I absolutely dont recall.

Spelling also submitted other declarations from other people: Spellings wife, her personal assistants, another private nurse for Aaron Spelling, a Spelling home security officer, and a Spelling attorney. These declarations suffer the same weakness: no personal knowledge of how Aaron Spelling acted when alone with Charlene Richards. These declarations thus cannot disprove Richardss allegations.

Candy Spellings declaration came the closest to some personal eyewitness knowledge. Candy Spelling swore that, she often went in and out of her husbands bedroom when Richards was working for the Spellings, including during early morning hours around 2 or 3 oclock a.m. When Candy Spelling was in the bedroom, she never saw anything inappropriate. We accept this declaration as true. This declaration did not claim, however, that Candy Spelling was always or usually in the bedroom during the five or six months Richards worked there. Because it appears Candy Spelling was not in the room much of the time, this declaration does not contradict Richardss allegation of sexual harassment. There is no necessary conflict between the declarations of Richards and Candy Spelling.

There are two other themes running through these declarations. First, Spelling acted appropriately around me, swore these declarants. We fully credit this fact, but it did not prove that Spelling acted the same way at a different time and when alone with a different person. Not all harassers always harass, all the time.

A second theme is that Richards never complained or appeared distressed but rather seemed upbeat and positive. Spelling in effect urges an inference as a matter of law that an upbeat, positive, and uncomplaining appearance around other people disproves sexual harassment. We accept this testimony about Richardss conduct and appearance as true. This testimony does not contradict Richardss allegations of sexual harassment. A nurse might need her job and believe that complaining would imperil her paycheck. Or she might think complaining about Spelling to the Spelling establishment would be fruitless. Or a nurse might be embarrassed by harassment and respond with denial. Or a professional might feel degraded to discover her status as sex object and yet soldier on with professional pluck. Or she might have had all of these reactions at once. These declarations do not disprove Richardss allegations.

The declaration of the Spellings Executive Protection Agent adds a fact. This Executive Protection Agent, named John Cassotta, declared he met Richards when he worked in the Spelling house providing security services. He said Richards told him that Aaron Spelling was cute and harmless. This was three or four weeks before Richards stopped working for Spelling. Spelling offers this declaration to prove that Aaron Spelling never sexually harassed Richards. We fully credit Cassottas declaration that Richards made this comment three or four weeks before her job ended. There is no doubt Richards made this comment, but what it means is less clear. The comment would not prove that there was no harassment in the weeks after the comment. More basically, the comment itself is puzzling. Why would a nurse say a patient is harmless? Patients rarely harm nurses. Logically, then, events must have triggered the nurses use of this unusual term. Cassottas declaration gives no context to explain what prompted the comment, which is open to array of interpretations. Fully accepting that Richards made the cute and harmless comment to this Executive Protection Agent at the Spelling house, this protean comment does not contradict Richardss claim of sexual harassment.

Sessionss central statement was Spelling sexually harassed Richards. Spelling failed to offer facts showing he had a probability of demonstrating this statement was false. A defamation case based on this statement lacks minimal merit.

2

The Globe article attributed several statements to Sessions. We analyze each in turn.

Sessionss first sentence was We want to find additional people who may have experienced or witnessed sexual harassment from Aaron Spelling. This statement was true. Sessions indeed was hunting for leads about Richardss case, and Richardss case was the claim that Spelling had sexually harassed her.

Spelling focuses on the word additional in this first sentence: We want to find additional people who may have experienced or witnessed sexual harassment from Aaron Spelling. Spelling says this word implies to readers that Spelling had harassed at least one person already, and readers thus would conclude that Spelling actually harassed female employees with whom he worked. This logic does violence to the articles words, which clarify the proper implication flowing from the word additional. The Globe article said [a]ttorney Don Sessions, who represents Spellings accuser, was claiming that Spelling had harassed Sessionss client. The article also reported that Spelling flatly denies any sexual harassment of the unnamed woman and quoted his representative as saying that [t]hese accusations are absolutely false. This article makes clear that an accuser was accusing, Spelling was denying, and the accusers lawyer wanted to find additional people who may have experienced or witnessed sexual harassment from Aaron Spelling. Sessions wanted to find people in addition to his client who may have witnessed sexual harassment from Spelling. So this first sentence does imply a statement by Sessions: my client is accusing Spelling of sexually harassing her. Properly interpreted, then, this statement at worst boils down to the same one we have just analyzed: Spelling harassed Richards. On this statement, Spelling properly lost the 425.16 motion, as we have just decided.

Sessionss second comment to Globe was, If guilty he [Spelling] needs to be held accountable, despite his wealth and power. Sessionss second comment was a conditional truism. Every person if guilty should be held accountable, despite wealth and power. This egalitarian notion is a fundamental American ideal. We all hope it is true. The issue with bite was whether Spelling was guilty of anything, or whether he was the victim of a false accusation. But this returns us to the question of whether Spelling in fact harassed Richards, and on that issue Spelling has failed to establish his probability of prevailing.

The final comment Globe attributed to Sessions was his statement that Sessions was trying to reach some kind of settlement. This statement was true. Spelling does not claim otherwise.

3

Spelling says the cover letter and survey made a further statement as well: that Aaron Spelling sexually harassed his female employees as a matter of habit. Spelling obtains this habit language from a university professor Spelling retained to help oppose Sessionss 425.16 motion. Spelling points to a single case holding that it was not an abuse of discretion for a trial judge to permit an expert to testify to a jury about how average viewers would be likely to understand a broadcast. (See Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1007-1008, cf. Montandon v. Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 944 [report of practice but no legal holding].) The trial court did not rule on Sessionss objection to this professors declaration. We accept this declaration as part of the record but reject it as support for Spellings case. (See Cheviot Vista Homeowners Ass'n v. State Farm Fire & Cas. Co. (2006) 143 Cal.App.4th 1486, 1500 fn. 9.)

The trial judge declined to rely on this particular expert, and so do we. The meat of his declaration is analysis of how ordinary readers would read a short document written in English. The expert did not offer survey data, apart from a concluding mention of a single response the professor says confirms his view. (The declaration omits the content of other responses to the 600 questionnaires.) In short, the professors declaration is nine pages of partisan textual argument in favor of Spelling and nothing more. Partisan argument is fine in litigation, but it belongs in the lawyers briefs. It should not be packaged as some sort of fact through the device of an expert witness.

American judges are trained to interpret the meaning of English words. We hope we are able to read and understand Sessionss cover letter and survey, which total two pages. Respectfully, the words of these texts do not reasonably support the interpretation that the professor urges: that Sessions said Spelling harassed female employees as a matter of habit. As a matter of plain English, this interpretation is not valid. It is not what Sessions wrote to his audience of 600. Spelling could not hold Sessions liable for something Sessions did not say.

B

There is a second key hurdle to a public figures defamation claim: actual malice. To prove an accused defamer is liable, a public figure plaintiff must show the defamer spoke with actual malice. Actual malice means the defamer knew the defamatory statements were false, or else the defamer entertained serious doubts as to the statements truth. Here Sessions swore without contradiction that he sincerely believed Richardss claim of sexual harassment. Spelling was unable to establish a factual probability of showing actual malice. For this second and independent reason, Spellings defamation case lacked minimal merit.

Sessions swore he believed Spelling harassed Richards. He listed the reasons he trusted Richardss account of the sexual harassment. Richards shared very specific and compelling facts with Sessions. Sessions spoke to two other former Spelling nurses who recounted sexual harassment by Spelling. All three women displayed great emotion when recounting these experiences; Sessions judged their demeanor to be sincere and greatly distraught . . . . They were compelling and credible. Richards sought Sessionss legal advice before she was terminated. Sessions discovered other claims of sex discrimination and harassment had been lodged against Spelling or his companies. Sessions discovered a judgment in favor of a woman named Hunter Tylo in a sex discrimination/pregnancy case against Spelling Entertainment Group, Inc. and Spelling Television, Inc.

In opposition, Spellings sole evidence about Sessionss state of mind was paragraph two of a declaration from Spellings lawyer. The relevant portion of this declaration stated Spellings lawyer told Mr. Sessions that his clients allegations concerning Mr. and Mrs. Spelling were absolutely false. Mr. Sessions told me that he would provide me with corroborating evidence to demonstrate that his clients claims were true. After Mr. Sessions provided that evidence to me, he and I spoke again and corresponded in writing. I told Mr. Sessions in our conversation that the witnesses did not corroborate his clients story and, in fact, called into question her veracity.

Spellings evidence shows his case lacked minimal merit. Sessions swore he believed his client and gave many logical reasons why. Spellings lawyers response was, Dont believe her. Instead, believe me. I say it never happened. Spellings lawyer did not lay out many logical reasons why his view was more reasonable. Spellings lawyer did not claim personal knowledge on the question of harassment. He was not a witness. He was an advocate for Spelling and against Richards. In litigation, opposing counsel often have sharp differences about the facts. The conflict in perspective is routine. The conflict commonly is profound yet sincere. That is often why cases go to trial. Experienced litigators know these things well. Spellings evidence did not show a probability Spelling would be able to prove Sessions entertained serious doubts about Richardss harassment claim.

Spelling cites St. Amant v. Thompson (1968) 390 U.S. 727. The St. Amant case supports Sessions, not Spelling. There the Supreme Court of the United States overturned a defamation verdict because plaintiff Thompson failed to show speaker St. Amant in fact entertained serious doubts as to the truth of his publication. (Id. at p. 731.) There were three key people: victim Thompson, defamer St. Amant, and St. Amants informant, one Albin. Thompson said St. Amant defamed him by recklessly repeating Albins earlier accusations against Thompson. Spelling is Thompsons counterpart, Sessions is like St. Amant, and Richards is in Albins place.

The results are the same in both cases: no defamation because neither St. Amant nor Sessions spoke with actual malice. Spelling failed to show Sessions knew Richards was an unreliable source of information; Spelling had no proof of a low community assessment of [Richardss] trustworthiness or unsatisfactory experience with [her] by [Sessions]. (Id. at p. 733.) Neither did Spelling show that Richardss story is fabricated by [Sessions], is the product of his imagination, or is based wholly on an unverified anonymous telephone call. (Id. at p. 732.) Nor were Richardss allegations so inherently improbable that only a reckless man would have put them in circulation. (Ibid.) Nor did Spelling advance obvious reasons to doubt the veracity of the informant [Richards] or the accuracy of [her] reports. (Ibid.) As in St. Amant, here the actual malice requirement barred a public figures defamation suit.

Spelling makes three other arguments that warrant comment. Spelling says Sessions had reason to doubt Richards because Sessions knew Spelling was elderly and needed full time nursing care. Spelling was in his early 80s and needed full time nursing, but beyond these points the factual record is largely silent about the state of Spellings abilities. Richards worked for Spelling from November 2004 to April 2005. The trial court heard the matter in April 2006, at which point Spelling was alive. Spelling cites to no evidence before the trial court about the reason for and nature of the nursing; Spellings physical size and state; whether, when, and how he was disabled; his rate of decline; and so forth. Some of the acts Richards alleged would have required a degree of physical prowess. Some would not have. Spelling created no record on these issues. It was his burden to do so.

Second, Spelling argues that Sessionss decision to mail his cover letter and survey to 600 actors proves Sessions had doubts about Richardss veracity. This is incorrect. Trial lawyers know there is a world of difference between knowing something is true and being able to prove it is true. Trial lawyers commonly would like to beef up their case, especially when only two people witnessed key events. Case investigation shows a desire to win. It does not prove the lawyer doubts his client.

Finally, Spelling comments about other cases involving Spelling, including the Hunter Tylo case. (An aspect of this litigation appears in Tylo v. Superior Court (1997) 55 Cal.App.4th 1379.) Spelling says this case and judgment was against Spelling Entertainment Group, Inc. and Spelling Television, Inc. Spellings point is that none of these other cases was against Aaron Spelling personally. It is true that Sessionss declaration claims the Tylo verdict was against both Spelling and his company. Sessions erred on that point. As St. Amant explained, however, reckless conduct is not measured by the standard of a reasonably prudent person. (St. Amant v. Thompson, supra, 390 U.S. at p. 731.) A negligent error by Sessions did not show he knew of the probable falsity of [Richardss] statement . . . . (Id. at pp. 732-733.)

To establish a probability of success on his defamation case, Spelling had to make a prima facie showing that Sessions at least had serious doubts about whether Richards was believable. Sessions swore that he got the detailed story straight from Richards, that her reporting timing was persuasive, that two other women told him similar stories, that they were all convincingly emotional, distraught, and sincere, and that he believed them. Spelling was not able to muster a factual showing that in any significant way contradicted this basic account of good faith. Spelling did not have a case on actual malice, and so did not have a case on defamation.

C

In sum, the trial court correctly granted Sessionss 425.16 motion. Spellings defamation case lacked minimal merit. He did not show a probability that he could establish two critical elements: that Sessionss statements were false, and that Sessions spoke with actual malice.

IV

The trial court awarded Sessions costs and attorney fees as the prevailing defendant on his anti-SLAPP motion. ( 425.16, subd. (c).) An award of attorney fees to the party bringing a successful special motion to strike under section 425.16 is mandatory. (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Because we affirm the courts 425.16 ruling, we must also affirm the fee and cost award. Code of Civil Procedure section 425.16, subdivision (c) also entitles Sessions to recover his costs and attorney fees on appeal. (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627-628; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 927.)

V

The judgment is affirmed. Sessions is to recover his attorney fees and costs on appeal in an amount to be determined by the trial court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILEY, J.*

We concur:

WOODS, Acting P.J. ZELON, J.

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* Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.