Hodge v. >East> >Bay> Express













Filed 4/25/13 Hodge v. East Bay Express CA1/2











>NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.











IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

MARCIE HODGE, Plaintiff and Appellant, v. EAST BAY EXPRESS ET AL. Defendants and Respondents.

A134090 (Alameda County Super. Ct. No. RG10540126)

Marcie
Hodge (appellant) brought an action for defamation against the East Bay Express
(the Express), a weekly news publication; Robert Gammon, the writer of an
Express column called “Full Disclosure”; and Stephen Buel, the Express’s then
editor (collectively
respondents). The trial court granted
respondents’ special motion to strike the complaint, pursuant to the provisions
of California’s anti-strategic lawsuit
against public participation (anti-SLAPP) statute (Code Civ. Proc., § 425.16).href="#_ftn1" name="_ftnref1" title="">[1] Appellant now appeals, contending she showed
a probability of prevailing on the merits and that, therefore, the court erred
in granting the anti-SLAPP motion and dismissing her complaint. We shall affirm the judgment.

>BACKGROUND

In
2010, appellant, who had previously been elected to two terms as a trustee of
the Peralta Community College Peralta District (district), was a candidate for mayor of Oakland. On September
29, 2010, the Express published a “Full Disclosure” column written by Gammon,
entitled The Baffling Mayoral Bid of
Marcie Hodge. The column discussed
appellant’s political background as a Peralta board trustee, her prior
unsuccessful run for Oakland City Council, as well as her 2010 campaign for
mayor, and raised questions regarding whether she was running for mayor as a
favor to veteran politician and fellow-candidate for mayor, Don Perata, who,
Gammon suggested, was supporting her campaign in an effort to siphon off
African-American votes from other, more viable mayoral candidates.

On
October 5, 2010, appellant filed a complaint for damages against
respondents. The complaint included a
single cause of action for defamation. Appellant alleged in the complaint that the
following statements in Gammon’s column were false and defamatory:href="#_ftn2" name="_ftnref2" title="">[2]

“Former
state senator Don Perata helped her run for Oakland City Council in 2006. Is her run for mayor in 2010 designed to
return the favor?

“When
Marcie Hodge ran for Oakland City Council against Desley Brooks four years ago,
it was no secret who was behind her campaign.
Brooks and Don Perata had clashed often over the years, and the
then-state senator’s close ally, Councilman Ignacio De La Fuente, made it clear
at the time that he wanted Brooks out of office. So they found a candidate to take on Brooks—political
neophyte Marcie Hodge.

“[¶] In 2008, Hodge ran for an open seat on the
Peralta Community College Board of Trustees. . . .

“However,
her short tenure on the Peralta board has been plagued with scandal. She used the district’s credit card for
personal expenses at a time when Peralta was facing financial insolvency,
forcing her board colleagues to publicly admonish her.

“[¶]
. . . [¶] So where did she get all that
cash and why is she spending so much of it when she won’t take the time to
prepare for a debate? . . .

“[¶]
. . . [¶] Hodge also seems to be mostly
targeting black voters. Her radio ads
have run on stations that are popular with black listeners, and her billboards
are in predominantly black neighborhoods.
So if her campaign is not about taking votes away from [candidates
Rebecca] Kaplan and [Jean] Quan, why would she target the black vote in a race
when blacks make up about a third of the electorate and she will need support
from throughout the city?”

On
June 2, 2011, respondents filed an anti-SLAPP motion and, on November 17, 2011,
the trial court granted the motion and dismissed appellant’s complaint with
prejudice.href="#_ftn3" name="_ftnref3" title="">[3]

In
granting respondents’ anti-SLAPP motion, the trial court found that appellant
had failed to substantiate a legally sufficient claim for defamation in that,
“[c]onsidered in the ‘totality of the circumstances’ of the full context of the
Column and the political campaign in which the challenged statements were made,
defendants’ challenged statements are all statements of protected opinion under
the First Amendment, rather than assertions of ‘provably false’ fact.” The court also found that the statements
regarding the investigation of appellant’s credit card use and her colleague’s
admonition of her were absolutely privileged as fair reports under Civil Code
section 47, subdivision (d), and that the statements quoting third persons were
privileged under the “neutral reportage” privilege of the First Amendment. The court further found that appellant had failed
to submit prima facie evidence showing that any statement challenged in her
complaint was false and that she had not submitted prima facie evidence showing
either that respondents acted with actual malice or that she had made a timely
demand for a retraction under Civil Code section 48a.

On
December 11, 2011, appellant filed a notice of appeal.

>DISCUSSION

I. The
Anti-SLAPP Statute and Standard of Review

Subdivision
(b)(1) of section 425.16 provides that 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 Constitution or the 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.” Subdivision (e) of section 425.16 elaborates
the types of acts within the purview of the anti-SLAPP law, including, as
relevant here, “any written or oral statement or writing made in a place open
to the public or a public forum in connection with an issue of public
interest.” (§ 425.16, subd.
(e)(3).)

“A two step process is used for determining whether an action
is a SLAPP. First, the court decides
whether the defendant has made a threshold showing that the challenged cause of
action is one arising from protected activity, that is, by demonstrating that
the facts underlying the plaintiff’s complaint fits one of the categories
spelled out in section 426.16, subdivision (e).
If the court finds that such a showing has been made, it must then
determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim.” (>Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 463 (Hecimovich), citing Navellier
v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

“ ‘The Legislature enacted section 425.16 to prevent and
deter “lawsuits [SLAPPs] brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for redress of
grievances.” (§ 425.16, subd. (a).) Because these meritless lawsuits seek to
deplete “the defendant’s energy” and drain “his or her resources” [citation],
the Legislature sought “ ‘to prevent SLAPPs by ending them early and without
great cost to the SLAPP target’ ” [citation].
Section 425.16 therefore establishes a procedure where the trial court
evaluates the merits of the lawsuit using a summary-judgment-like procedure at
an early stage of the litigation.’
[Citation.]” (>Hecimovich, supra, 203 Cal.App.4th at p. 463, quoting >Varian Medical Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 192.) Finally,
subdivision (a) of section 425.16 expressly mandates that the statute “shall be
construed broadly.”

We review the trial court’s ruling on an anti-SLAPP motion de
novo. (Hecimovich, supra,
203 Cal.App.4th at p. 464.)

II. Whether
the Cause of Action Arises from Protected Activity

Appellant
did not claim in the trial court, and does not claim now, that respondents
failed to satisfy their burden under the first prong of the section 425.16
analysis. The sole cause of action in
appellant’s lawsuit alleges that Gammon’s Express column about the
then-upcoming Oakland mayoral election was defamatory. With respect to whether appellant’s action is
one arising from protected activity, numerous courts of appeal have confirmed
that “ ‘ [t]he favored causes of action in SLAPP suits [include] defamation
. . . .’ ” (>Gallimore v. State Farm Fire & Casualty
Ins. Co (2002) 102 Cal.App.4th 1388, 1400, fn. 9; accord, >Hecimovich, supra, 203 Cal.App.4th at p. 464 [citing
cases].) Moreover, respondents have
shown that the column in the Express involved an issue of “public interest,”
which is “ ‘ “any issue in which the public
is interested.” ’ [Citation.]” (Hecimovich,
at p. 465.) We have no doubt that the
public in Oakland and beyond would be interested in questions regarding the
motives of a candidate who is running for mayor.

We
therefore conclude that respondents have shown that the lawsuit arises from a
protected free speech activity involving an issue of public interest. (See § 425.16, subd. (e)(3); >Hecimovich, supra, 203 Cal.App.4th at p. 464.)


III. The
Probability of Prevailing on the Merits

Appellant
contends she submitted sufficient admissible
evidence in opposition to respondents’ anti-SLAPP motion to satisfy her
burden of establishing a probability of prevailing on the merits in her
defamation action, under the second prong of the section 425.16 analysis. (See Hecimovich,
supra, 203 Cal.App.4th at p.
468.)

In
determining whether a plaintiff has established a probability of prevailing on
the merits, we “consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) “Looking at those affidavits, ‘[w]e do not
weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable
to the plaintiff and assess the defendant’s evidence only to determine if it
defeats the plaintiff’s submission as a matter of law.’ [Citation.]
[¶] That is the setting in which we determine whether plaintiff has met
the required showing, a showing that is ‘not high.’ [Citation.]”
(Grewal v. Jammu (2011) 191
Cal.App.4th 977, 989.)

Although
the burden is not high, the plaintiff still must demonstrate that his or her
claim is legally sufficient. (>Navellier, supra, 29 Cal.4th at p. 93.) The plaintiff, moreover, must show that the
claim “is supported by a sufficient prima facie showing, one made with
‘competent and admissible evidence.’
[Citations.]” (>Hecimovich, supra, 203 Cal.App.4th at p. 469.)


We
will now consider whether appellant has established a probability of prevailing
on the merits of her defamation claim.

A. The Law
of Defamation

Defamation
in the form of libel “is a false and unprivileged publication by writing,
. . . which exposes any person to hatred, contempt, ridicule, or
obloquy, . . . or which has a tendency to injure him in his occupation.” (Civ. Code, § 45.) In deciding if a published statement is> defamatory, the “question is whether a
reasonable fact finder could conclude the published statement declares or
implies a provably false assertion of fact.”
(Franklin v. Dynamic Details, Inc.
(2004) 116 Cal.App.4th 375, 385 (Franklin).)

Statements
phrased as opinions no longer receive blanket constitutional protection. (Milkovich
v. Lorrain Journal Co. (1990) 497 U.S. 1 (Milkovich).) As the Fourth
District Court of Appeal explained in Franklin,
supra, 116 Cal.App.4th at
pages 384-385, the Supreme Court in Milkovich
“reasoned that ‘[s]imply couching such statements in terms of opinion does not
dispel these [false, defamatory] implications’ [citation] because a speaker may
still imply ‘a knowledge of facts which lead to the [defamatory] conclusion’
[citation]. . . . Statements of opinion
that imply a false assertion of fact are actionable. [Citation.]”
(Franklin, at pp.
384-385.) Accordingly, after >Milkovich, the question is not merely
whether the statements are fact or opinion, but “whether a reasonable fact
finder could conclude the published statement declares or implies a provably
false assertion of fact. [Citation.]” (Franklin,
at p. 385; accord, Hawran v. Hixon
(2012) 209 Cal.App.4th 256, 289 [same]; Rest.2d Torts, § 566 [“A defamatory
communication may consist of a statement in the form of an opinion, but a
statement of this nature is actionable only if it implies the allegation of
undisclosed defamatory facts as the basis for the opinion”].)

A
comment to section 566 of the Restatement Second of Torts further
explains: “A simple expression of
opinion based on disclosed or assumed nondefamatory facts is not itself
sufficient for an action of defamation, no matter how unjustified and
unreasonable the opinion may be or how derogatory it is. But an expression of opinion that is not
based on disclosed or assumed facts and therefore implies that there are undisclosed
facts on which the opinion is based, is treated differently.” (Rest.2d Torts, § 566, com. c.) “The rationale behind this rule is
straightforward: When the facts
underlying a statement of opinion are disclosed, readers will understand they
are getting the author’s interpretation of the facts presented; they are
therefore unlikely to construe the statement as insinuating the existence of
additional, undisclosed facts.
[Citations.] Moreover, ‘an
opinion which is unfounded reveals its lack of merit when the opinion-holder
discloses the factual basis for the idea’; readers are free to accept or reject
the author’s opinion based on their independent evaluation of the facts. [Citations.]”
(Standing Committee v. Yagman
(9th Cir. 1995) 55 F.3d 1430, 1439; accord, Franklin,
supra, 116 Cal.App.4th at p. 387
[citing Standing Committee v. Yagman];
Partington v. Bugliosi (9th Cir.
1995) 56 F.3d 1147, 1156-1157, cited in Franklin,
at p. 387 [“when an author outlines the facts available to him, thus making it
clear that the challenged statements represent his own interpretation of those
facts and leaving the reader free to draw his own conclusions, those statements
are generally protected by the First Amendment”].)

To
determine whether a statement either declares or implies a provably false
assertion of fact, “courts apply the totality of the circumstances test. [Citation.]
‘Under the totality of the circumstances test, “[f]irst, 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.” ’
[Citations.] Whether a challenged
statement ‘declares or implies a provable false assertion of fact is a question
of law for the court to decide [citations], unless the statement is susceptible
of both an innocent and a libelous meaning, in which case the jury must decide
how the statement was understood.’
[Citation.]” (>Overhill Farms, Inc. v. Lopez (2010) 190
Cal.App.4th 1248, 1261.)

To
succeed on a defamation claim, a public figure must demonstrate not only the
falsity of the challenged statement, but also that the defendant acted with
actual malice. (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 867.) “To show actual malice, a public figure must
demonstrate the defendant uttered the statement ‘with knowledge that it was
false or with reckless disregard of whether it was false or not.’ [Citations.]
A public figure plaintiff must prove actual malice by clear and
convincing evidence. [Citation.]” (Id.
at pp. 867-868)

B. Appellant
did Not Establish a Probability of Prevailing

>on the Merits of Her Defamation Action

In
her complaint, appellant described the challenged statements in Gammon’s column
as falsely accusing her “of running for Mayor to repay a favor” and falsely
claiming “that her campaign targeted only black voters for the purpose of
taking votes away from other Mayoral candidates and to help a single candidate
to win.”

Only
if appellant can establish a prima facie case that Gammon either stated or
implied provably false assertions of fact in the course of offering his opinion
is Gammon’s opinion actionable as defamation.
(See Hawran v. Hixson, >supra, 209 Cal.App.4th at p. 289; see
also Hecimovich, supra, 203 Cal.App.4th at p. 469.)


In
the column, Gammon wrote that Perata and Ignacio De La Fuente had supported
appellant’s 2006 City Council run, and then hypothesized that appellant was now
running for mayor to help split the vote for Perata.href="#_ftn4" name="_ftnref4" title="">[4] In a declaration submitted in support of her
opposition to the anti-SLAPP motion, appellant stated that she has had no
communication whatsoever with Perata other than meeting him at a mayoral
candidates’ forum in September 2010, that he had no involvement in any of her campaigns,
that he did not endorse or support her 2006 candidacy for City Council and had
no involvement in her candidacy for mayor, and that she did not have any kind
of connection to him. She stated that
neither Perata nor De La Fuente “found” her or were behind any of her runs for
office, including her City Council run.
She also stated, however, that De La Fuente endorsed her for City
Council in 2006 and hosted her first fundraiser in that race. In another declaration, Yvonne Hodge,
appellant’s mother and treasurer of her campaigns for City Council and mayor,
stated that appellant never had any dealings with Perata and that Perata never
supported, endorsed, or helped appellant in any of her campaigns.

In a
declaration in support of respondents’ anti-SLAPP motion, Gammon stated: “When I wrote in the Column that ‘when Marcie
Hodge ran for Oakland City Council against Desley Brooks four years ago, it was
no secret who was behind her campaign,’ and that Perata and De La Fuente ‘found
a candidate to take on Brooks,’ I intended to convey only that Perata had
supported Hodge’s candidacy, not that Perata had induced Hodge to run for the
office in the first place. In any event,
I did not intend to convey to readers that I had any knowledge of Hodge’s state
of mind or knew specific facts concerning her relationship with Perata or De La
Fuente (from 2006 to the present), other than the facts he [>sic] specifically set forth in the
Column. My intention was to set forth
the facts I considered relevant to enabling readers to draw their own
conclusions as to whether Hodge was consciously running as a ‘spoiler.’ ”

As we
shall discuss in greater detail below, looking at the totality of the
circumstances, we conclude that the statements in Gammon’s column that Perata was
“behind” appellant’s 2006 City Council run and suggesting that appellant was
running as a spoiler in the 2010 mayoral election constitute protected
opinion. The statements were based on
disclosed facts, which appellant has not shown to be false and which allowed
readers to decide if they shared Gammon’s interpretation of those facts. (See Overhill
Farms, Inc. v. Lopez, supra, 190
Cal.App.4th at p. 1261.) Our conclusion
is reinforced by the fact that the statements at issue were written in the
context of a political campaign and appeared in a regular column in which, as
appellant acknowledges, Gammon regularly wrote about Perata and questioned his
motives and actions. (See >ibid.)href="#_ftn5" name="_ftnref5" title="">[5]

First,
Gammon’s statements that Perata had “helped” appellant in her 2006 City Council
run after he and De La Fuente had “found” in appellant a candidate to take on
Brooks and that they were “behind” her City Council run were based in part on
his opinion as a commentator on local politics that, in 2006, De La Fuente
“made it clear . . . that he wanted Brooks out of office” as a member
of the Oakland City Council and that Perata and Brooks “had clashed often over
the years.”href="#_ftn6" name="_ftnref6"
title="">[6]

Gammon
further based his opinion that Perata had supported appellant’s 2006 challenge
to Brooks based on the following disclosed—and undisputed—facts: Some of Perata’s “best donors helped
bankroll” appellant’s campaign; donors giving the maximum $600 donation
included “longtime Perata donors” Anthony Batarse, Jon Reynolds, John
Protopappas, Ana Chretien, Ronald Dreisbach, and John Foster. Gammon added that appellant’s biggest
contributor in 2008 was “Perata donor” B&B Auto, which gave her
$2,000. Also related to Gammon’s opinion
that Perata was “behind” appellant’s 2006 run was the stated fact that “Perata’s
current campaign manager, Larry Tramutola, managed her message” and that
appellant had “reported paying [Tramutola] $24,000 in 2006 to be her campaign
manager.”href="#_ftn7" name="_ftnref7" title="">[7] That appellant was not personally acquainted
with Perata does not mean that he did not support her run—with or without her
knowledge—as someone he and De La Fuente believed could unseat Brooks. Moreover, even if untrue, Gammon’s theory,
based on his interpretation of undisputed facts that were shared with his
readers, was protected opinion. (See >Franklin, supra, 116 Cal.App.4th at pp. 385-386 [stated opinions that
neither declare nor imply provably false assertions of fact are protected by
First Amendment].)

Second,
as to the suggestion in the column that appellant ran for mayor in 2010 as a
“favor” to Perata and that Perata was supporting her run, Gammon wrote that
appellant had “denied receiving Perata’s assistance,” but that “Brooks,
[Geoffrey] Pete [of the Oakland Black Caucus], and others think the former
senator is trying to use Hodge[, an African-American,] to siphon black votes
from two of his main competitors—Councilwomen Jean Quan and Rebecca Kaplan,”
whom he wrote had “picked up some key African-American endorsements.” Appellant has not disputed the truth of
either the statement about her denial or the statement about others’
opinions. Nor does she claim that Gammon
manufactured Pete’s question, quoted in the column: “How would somebody who got her butt whupped
by Desley Brooks and was censured by her Peralta colleagues suddenly have the
money for billboards and radio ads?” The
column thus offered the opinion of both Gammon and others as to appellant’s
reason for being in the race, and invited readers to decide if they agreed with
those opinions.

As to
questions in the column about where appellant obtained money she spent on her
mayoral campaign while not being prepared to debate,href="#_ftn8" name="_ftnref8" title="">[8]
appellant stated in her declaration: “I
was not funneled any money to run any campaign.
I loaned myself money from my own accounts and my own savings which I
have accumulated over the years. I did
not suddenly swim in money, I have intentionally saved money.” Yvonne Hodge also stated in her declaration: “I opened Marcie Hodge her first savings
account when she was months old. I
deposited all gifts and money she made from selling newspapers and any odd jobs
she had as a child. Her savings grew
into the thousands by the time she entered high school.” Yvonne Hodge further stated that no money was
funneled to appellant in any campaign.

Gammon’s
questions and suggestions regarding appellant’s campaign finances also form
part of the basis of his opinion that Perata was behind her run. For example, he asked, “where did she get all
that cash?” and opined that her campaign “appears to be suddenly swimming in
cash.” In support of this observation,
he noted in the column that appellant had bought ads on radio stations and
billboards and had sent out a “glossy mailer,” which he said could typically
cost $30,000 to $40,000. He also noted
that, in an interview, appellant said she had “loaned her campaign money and
[had] received donations from some of the same contributors she counted on in
2006.” He continued: “But it could be a long time before her
assertions can be verified. According to
Alameda County Registrar of Voters and Oakland City Clerk’s Office records, she
has a history of not reporting her contributions until months after an election
is over—in violation of state and local election laws. In both 2006 and 2008, she failed to file
campaign statements until five months after the statutory deadline.”

Similarly,
Gammon wrote: “Records show [appellant]
loaned herself $40,000 for her 2006 city council bid. But it’s not clear where she got the
money—then or now. In August, she
declared under penalty of perjury on her statement of economic interests with
the City of Oakland that she has no job, no investments, and no other income
that pays more than $500 per year. In an
interview, Hodge said she has saved money from past jobs. She also said she runs a consulting
business. But when asked why she didn’t
report that business to the city, she replied, ‘I’ll have to look at that.’
” Gammon further noted that Brooks and
several other Black leaders in Oakland believed that Perata was “once again
helping his political protégé.”

Appellant
does not challenge the accuracy of Gammon’s recounting of what she had stated
in either the interview regarding her sources of money or in the declaration
for her statement of economic interests.
Nor does she claim that the statements about the tardiness of her prior campaign disclosure statements are
false. Appellant’s statement in her
declaration in opposition to the anti-SLAPP motion that she had money from her
“own accounts and [her] own savings,” which she had “accumulated over the
years” does not transform Gammon’s opinion into a false statement of fact. Rather, he set forth the facts—including both
appellant’s explanation of where she obtained funds for her campaigns and the
difficulty of confirming that explanation due to the lateness of appellant’s
past campaign disclosure statements—and, based on those facts, expressed
suspicion about the likely source of appellant’s campaign funds. His assertions were protected opinion. (See Franklin,
supra, 116 Cal.App.4th
at pp. 385, 389.) Nor does appellant
challenge the accuracy of Gammon’s quotation of Pete, who questioned how she
could suddenly have so much money after a losing City Council campaign and
censure by her Peralta board colleagues.
Again, Gammon relied on undisputed facts to raise questions regarding
where appellant obtained the money for her campaign, and to support his opinion
that Perata was backing her mayoral bid in an attempt to siphon off Black
votes. (See ibid.)

Regarding
Gammon’s statement in the column that “[appellant] won’t take the time to
prepare for a debate,” appellant stated in her declaration that she spent a
great deal of time preparing for mayoral forums and debates.

Again,
the challenged statement regarding appellant’s debate preparation is clearly
Gammon’s subjective opinion regarding her performance at the prior week’s
Chamber of Commerce debate, regarding which he wrote: “Even she recognized how badly she was doing,
telling the audience at one point: ‘You
guys are scaring me; I’m stumbling up here.’
It looked as if she didn’t want to be there, let alone be running for
mayor.” The comments about appellant’s
debate preparation and performance are protected opinion, explicitly based on
Gammon’s own perceptions and interpretations of appellant’s actions. (See Franklin,
supra, 116 Cal.App.4th
at pp. 385, 389.) Moreover, many of
Gammon’s statements, including his assertions about appellant’s debate
performance, such as that she “completely flopped,” are best described, in the
context of this column on the Oakland mayoral election, as “rhetorical hyperbole.”
(See Franklin, >supra, 116 Cal.App.4th at p. 389
[statements that plaintiff “stole” copyrighted material, “compromised
[defendant company],” and “plagiarized” data appeared “in context as rhetorical
hyperbole”]; compare Hawran v. Hixson,
supra, 209 Cal.App.4th at p. 292
[formalized statements made in a press release are “usually intended to be
factual, as opposed to rhetorical, persuasive, or evaluative”].) Although Gammon “did not temper [some of] his
opinions with words of transparency, neither did he present his opinions as
legal truths framed in legal verbiage.”
(Franklin, at p. 389; see also
Rosenaur v. Scherer (2001) 88
Cal.App.4th 260, 280 [calling plaintiff a
“thief” and “liar” in context of a political campaign was hyperbole].)

With
respect to appellant’s assertion that Gammon falsely claimed she was targeting
Black voters in her mayoral campaign,href="#_ftn9" name="_ftnref9" title="">[9]
appellant stated in her declaration: “My
campaign promotions for Oakland Mayor in 2010 were city wide and did not target
African-Americans. I targeted all city
residents who had voted in the last four elections. [¶] . . . [¶] . . . My billboards were
citywide and my radio ads were on stations of many genres and audiences. My billboards were not in predominately black
neighborhoods, they were in business districts, by freeways, by the Oakland
airport, in North Oakland, [and] near the tunnel connecting Oakland and Alameda
and citywide. [¶]
. . . My West Oakland billboard was near Bart, [which] is an
industrial area of West Oakland.^{[href="#_ftn10" name="_ftnref10" title="">[10]]} [¶] My
campaign mailers targeted to voters [sic]
who had voted in the last four elections.”href="#_ftn11" name="_ftnref11" title="">[11]

Gammon
stated in his declaration, regarding appellant’s alleged targeting of Black voters: “I myself received a copy in the mail of the
four-page mailer described in the Column.
I myself observed the location of some of the billboards described in
the Column. The location of other
billboards and the radio advertisements were described to me by persons who had
seen or heard them, including by my editor at the time, Stephen Buel.”

Gammon’s
statement in the column that appellant “seems to be mostly targeting black
voters” was couched in language of “apparency” (see Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254,
260-261), and was plainly based on his personal belief, expressed in the
column, that many of appellant’s radio
ads were running on stations popular with Black listeners and that her
billboards were in predominantly Black areas of Oakland.href="#_ftn12" name="_ftnref12" title="">[12] Gammon’s comments were presented, in context,
as Gammon’s own subjective observations and opinions about what radio stations
are popular with Black listeners and what are predominantly Black areas of
Oakland, and did not amount to provably false assertions of fact. (See Franklin,
supra, 116 Cal.App.4th
at pp. 385, 389.)

With
respect to the statement in the column that appellant’s “short tenure on the
Peralta board has been plagued with scandal” href="#_ftn13" name="_ftnref13" title="">[13]
and that she had “used the district’s credit card for personal expenses at a
time when Peralta was facing financial insolvency, forcing her board colleagues
to publicly admonish her,” appellant stated in her declaration: “My tenure on Peralta has not been plagued
with scandal. I was not publicly
admonished by board colleagues. There
was no agenda item to reprimand me, there was no vote by the board, there was
no letter written to me and there was no private or public admonition. There was no board policy on credit card use
to violate in July 2009.”

Respondents
refer to documents in the record relevant to these challenged statements, of
which the trial court took judicial notice.
Numerous articles and editorials in local newspapers discussed
appellant’s use of the district credit card for personal expenses.href="#_ftn14" name="_ftnref14" title="">[14] The Peralta board then passed a resolution to
request that the State Chancellor of the California Community Colleges appoint
“an individual of stature” “to conduct a formal review of claims of impropriety
by local media reports . . . .”
Subsequently, after the appointed investigator stated at a September
2009 Peralta Board meeting that “the one trustee made a mistake a couple of
times and charged some personal stuff to a credit card, which isn’t a good
thing, but she stepped up and reconciled when it was pointed out,” board member
Linda Handy responded: “I believe that I
was elected because of my integrity and because of my responsibility and that
we all need to be held to that. When . .
. it comes down to the credit card, you said there was some confusion. I am not confused. It is not my credit card. It is a public trust. It belongs to the district. And yes we will put more policies in place,
but as I said, we cannot do policies for common sense. . . . The thing that I think is most important is,
it must all pass the sniff test. . . .”
Finally, after another investigation of this matter, an Alameda County
Grand Jury’s final report concluded, inter alia: “Personal charges were made using the
district credit cards with no penalty.
Based on information provided to the grand jury, trustees only paid the
district back when the unauthorized expenditures were made public.”

Again,
in the context of this column about a candidate for mayor of Oakland, Gammon’s
statement that appellant’s tenure on the Peralta board had been “plagued with
scandal” was his opinion and another example of “rhetorical hyperbole” (>Franklin, supra, 116 Cal.App.4th at p. 389), based on disclosed facts, i.e.,
appellant’s much-publicized, repeated use of a district credit card for
personal expenditures. Moreover, the
statement that her actions “forc[ed] her board colleagues to publicly admonish
her,” reflected the fact that a fellow Peralta trustee expressed strong disapproval
of her actions at a public meeting.href="#_ftn15" name="_ftnref15" title="">[15] Those critical comments certainly could be
described as an admonition.href="#_ftn16"
name="_ftnref16" title="">[16]

In conclusion, appellant has not made a prima facie
showing that the statements she challenged in Gammon’s column were
defamatory. Presuming as we must that
all of the evidence favorable to appellant is true (see Grewal v. Jammu, supra,
191 Cal.App.4th at p. 989), she has not demonstrated that the opinions
expressed by Gammon—an Express writer who was a frequent and vocal critic of
Perata—were based on provably false facts.
(See Franklin, >supra, 116 Cal.App.4th at pp. 384-385; >Overhill Farms, Inc., >supra, 190 Cal.App.4th at p. 1261.) Gammon never purported to definitively know
the answers to the questions he posed regarding appellant’s motives in running
for mayor. He simply offered a
subjective and perhaps unjustified theory about a possible connection between
appellant’s 2010 run for mayor and Perata, based on fully disclosed facts. (Standing
Committee v. Yagman, supra,
55 F.3d at p. 1439.) Any reasonable
Express reader would necessarily understand both that the statements in
question were part of Gammon’s subjective opinion about appellant’s run for
mayor and that the reader was “free to accept or reject” Gammon’s opinion that
appellant was running as a spoiler, “based on their own independent evaluation
of the facts.” (Ibid.; accord, Franklin, at p. 387.)

Because
appellant cannot establish a probability of success as to the first element of
a defamation claim—a false assertion of fact—the trial court properly granted respondents’
anti-SLAPP motion. (See >Hecimovich, supra, 203 Cal.App.4th at pp. 463-464.)href="#_ftn17" name="_ftnref17" title="">[17]

>DISPOSITION

The
judgment is affirmed. Costs on appeal
are awarded to respondents East Bay Express, Robert Gammon, and Stephen
Buel.

















_________________________

Kline,
P.J.





We concur:





_________________________

Haerle, J.





_________________________

Lambden, J.