Judge: Bruce G. Iwasaki, Case: 23STCV24374, Date: 2024-11-22 Tentative Ruling
Case Number: 23STCV24374 Hearing Date: November 22, 2024 Dept: 58
Judge Bruce G. Iwasaki
Hearing
Date: November 22, 2024
Case
Name: Derderian v.
Jabarian
Case
No.: 23STCV24374
Matter: Anti-SLAPP Motion
Moving Party: Defendants Appo Jabarian (individually and at relevant
times dba USA Armenian Life Magazine) and Hye Media Group, Inc.
Responding Party: Plaintiff Hovnan Derderian
Tentative Ruling: The special motion to strike pursuant to Code of Civil
Procedure section 425.16 is granted.
This is a defamation action. Plaintiff Hovnan
Derderian (Plaintiff) sued Defendant USA Armenian Life and its publisher,
Defendant Appo Jabarian (Jabarian) (jointly, Defendants) for allegedly false
statements made in Defendants’ publication regarding Plaintiff.
On February 7, 2024, Defendants
filed a Special Motion to Strike the Complaint pursuant to Code of Civil
Procedure section 425.16. Thereafter, Plaintiff moved for leave to conduct
discovery on Defendant’s Special Motion to Strike. Defendants opposed this
motion. The Court granted this motion in part.
On October 18, 2024, Plaintiff filed
an opposition to the special motion to strike. A reply was filed.
The special motion to strike
pursuant to Code of Civil Procedure section 425.16 is granted.
Legal
Standard
“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.” (Code Civ. Proc., § 425.16, subd. (b)(1).) The purpose of the statute
is to identify and dispose of lawsuits brought to chill the valid exercise of a
litigant’s constitutional right of petition or free speech. (Code Civ. Proc., §
425.16, subd. (a); Sylmar Air
Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th
1049, 1055-1056.)
Courts employ a two-step process to
evaluate special motions to strike strategic lawsuits against public
participation (SLAPP). (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.) First, the defendant must show that the
challenged lawsuit arises from protected activity, such as an act in
furtherance of the right of petition or free speech. (Ibid.) “The moving defendant bears the burden of identifying all
allegations of protected activity, and the claims supported by them.” (Baral
v. Schmitt (2016) 1 Cal.5th 376, 396.) In the second step, it “
‘is then up to the plaintiff to rebut the presumption by showing a reasonable
probability of success on the merits.’ ” (Equilon,
supra, 29 Cal.4th at p.
61.) In determining whether the plaintiff has carried this burden, the
trial court considers “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (Code Civ.
Proc., § 425.16, subd. (b)(2); see Soukup
v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.)
“Analysis of an anti-SLAPP motion is
not confined to evaluating whether an entire cause of action, as pleaded by the
plaintiff, arises from protected activity or has merit. Instead, courts should
analyze each claim for relief—each act or set of acts supplying a basis for
relief, of which there may be several in a single pleaded cause of action—to
determine whether the acts are protected and, if so, whether the claim they
give rise to has the requisite degree of merit to survive the motion.” (Bonni
v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010.)
Discussion
I.
Arising
from Protected Activity
As outlined above, in the first step
of the analysis, Defendants must demonstrate that Plaintiff’s claims arise from
one of four categories of protected activity. An “ ‘act in furtherance of a
person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue’ includes: (1) any written or
oral statement or writing made before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law, (2) any written
or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law, (3) 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, or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional
right of free speech in connection with a public issue or an issue of public
interest.” (Code Civ. Proc., § 425.16,
subd. (e).)
“As our Supreme Court has
recognized, ‘the “arising from” requirement is not always easily met.’
[Citation.] ‘[T]he mere fact that an action was filed after protected activity
took place does not mean the action arose from that activity for the purposes of
the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably
may have been “triggered” by protected activity does not entail that it is one
arising from such.’ [Citation.] ‘A claim arises from protected activity when
that activity underlies or forms the basis for the claim. [Citations.] Critically, “the defendant’s act underlying
the plaintiff’s cause of action must itself have been an act in furtherance of
the right of petition or free speech.” [Citations.]’ [Citation.] ‘[I]n ruling
on an anti-SLAPP motion, courts should consider the elements of the challenged
claim and what actions by the defendant supply those elements and consequently
form the basis for liability.’ [Citation.] Put another way, courts should first
identify ‘the allegedly wrongful and injury-producing conduct that provides the
foundation for the claims,’ and then determine whether that conduct itself
constitutes protected activity. [Citations.]” (Callanan v. Grizzly Designs,
LLC (2022) 81 Cal.App.5th 517, 526 (Callanan) [citing Park, supra,
2 Cal.5th at pp. 1062-1063].)
Defendants
first argue that Plaintiff’s claims arise from protected activity under Code of
Civil Procedure section 425.16 because Plaintiff’s Complaint for defamation arises out of Defendants’ free
speech. Specifically, the Complaint alleges that Defendants made false and
defamatory statements regarding Plaintiff in a news publication, Armenian Life.
(Compl., ¶¶ 11-19.)
There
is no real dispute that Plaintiff’s claims arise from protected activity.
Accordingly, Defendants have met their
burden of showing that Plaintiff’s claims arise from protected activity.
II.
Demonstrating Minimal Merit
On the second component of the analysis, courts employ a
“summary-judgment-like” procedure, “accepting as true the evidence favorable to
the plaintiff and evaluating the defendant’s evidence only to determine whether
the defendant has defeated the plaintiff’s evidence as a matter of law.” (Gerbosi v. Gaims, Weil, West & Epstein,
LLP (2011) 193 Cal.App.4th 435, 444.) The Court does not assess
credibility, and the plaintiff is not required to meet the preponderance of the
evidence standard. The Court accepts as true the evidence favorable to the
plaintiff, who need only establish that his or her claim has “minimal merit” to
avoid being stricken as a SLAPP. (Soukup,
supra, 39 Cal.4th at p. 291.) 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.’ ” (Ibid.)
In moving to strike the Complaint, Defendants
argue that certain statements were either not false or not statements of fact. Additionally,
Defendants argue Plaintiff cannot carry his burden of showing the malice
element of defamation required for a public figure like Plaintiff.
“Defamation is the intentional
publication of a statement of fact that is false, unprivileged, and has a
natural tendency to injure or that causes special damage.” (Grenier v.
Taylor (2015) 234 Cal.App.4th 471, 486.) “If the person defamed is a public
figure, he must show, by clear and convincing evidence, that the defamatory
statement was made with actual malice” (Mitchell v. Twin Galaxies, LLC
(2021) 70 Cal.App.5th 207, 218.)
Generally, a plaintiff's claims need
only have “ ‘minimal merit’ ” to survive an anti-SLAPP motion. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 95, fn. 11.) However, when the plaintiff is a
public figure suing for defamation, to establish a prima facie case she must
demonstrate by clear and convincing evidence that the defendant acted with
“actual malice.” (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146,
1162, 1169-1172 [trial court should have granted anti-SLAPP motion where
limited purpose public figure plaintiff “failed to show a probability of
proving actual malice by clear and convincing evidence”]; Conroy v. Spitzer
(1999) 70 Cal.App.4th 1446, 1451, 1454 [to meet anti-SLAPP statute's
requirement that he show he would “probably” prevail on his claim, public
figure plaintiff “was required to ‘show a likelihood that he could produce
clear and convincing evidence’ ” that defendant made statements with actual
malice]; Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950
[“The clear and convincing standard requires that the evidence be such as to
command the unhesitating assent of every reasonable mind. [Citation.] Actual
malice cannot be implied and must be proven by direct evidence”].)
“This standard is subjective, not
objective. Reckless conduct is not measured by whether a reasonably prudent
person would have published, or would have investigated before publishing.
There must be sufficient evidence to permit the conclusion that the defendant
in fact entertained serious doubts as to the truth of the publication.
Publishing with such doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.” (Collins v. Waters (2023) 92 Cal.App.5th
70, 79.)
The Court addresses each of the
allegedly defamatory statements in turn.
Statement No. 1 regarding Child Abuse Allegations:
The Complaint alleges that Defendant
published the following defamatory statement: “According to certain sources,
Primate of the Western Diocese, Hovnan Derderian, ‘committed child abuse.’ . .
. However, at the last moment, the mother of the child must have received a
‘large amount of hush-hush money from Archbishop Hovnan Derderian to remain
silent and suspend the court case.” (Compl., ¶ 12(B) [Statement No. 1].)
Defendants contend that Plaintiff
cannot show malice because the facts underlying this statement was substantiated
over a period of years by multiple sources. Specifically, Defendant represents
four individuals informed Defendant Jabarian that Plaintiff had sexually abused
a minor. (Jabarian Decl., ¶¶ 22-26.) The report of
misconduct was substantiated by two other declarants who received similar
reports. (Halladjian Decl., ¶¶ 9-11; Bagramyan Decl., ¶¶ 4, 6.)
Plaintiff
characterizes the statements as “sketchy hearsay statements that contained no
factual details of the alleged abuse.” (Opp., 17-18.) However, Plaintiff submits no evidence suggesting that these four individuals
were biased or that Defendants should have suspected that the statements from
these persons were obviously untruthful. Further, Plaintiff’s naked
assertion that Defendant is lying about the sources is insufficient to meet his
burden of showing malice by clear and convincing evidence on this motion. Thus,
there is no evidence before this Court that there were any “obvious reasons to doubt the accuracy of the” statement by
Defendants. (See Khawar v. Globe Intern., Inc. (1998) 19 Cal.4th
1073, 259-260, 277 [finding that while a defendant's failure to investigate an
issue will not, alone, support a finding of actual malice, the fact a defendant
purposely avoided learning the truth can support that finding].)
Defendant also argues that the article merely inquired
whether Plaintiff had committed child abuse and such inquiry is not actionable
as a defamatory statement of fact. It is true that “[i]nquiry itself,
however embarrassing or unpleasant to the subject, is not accusation.” (Chapin
v. Knight-Ridder, Inc. (4th Cir. 1993) 993 F.2d 1087, 1093-94; see also Abbas
v. Foreign Policy Grp. (D.C. Cir. 2015) 783 F.3d 1328, 1338-39 [“posing
questions has rarely given rise to successful defamation claims in other
jurisdictions”].)
Admittedly, the statements were contained within an article
titled a “Media Inquiry” and “asked” whether it could be confirmed that Plaintiff
paid off the mother of a child he abused. (Jabarian Decl., ¶¶ 20-22,
Ex. C.) Nonetheless,
the context of the statement as a whole makes it a clear statement of fact – that
is, an assertion that Plaintiff was involved in a misconduct towards minors. (Bently
Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 427 [“ ‘The key is
not parsing whether a published statement is fact or opinion, but “whether a
reasonable fact finder could conclude the published statement declares or
implies a provably false assertion of fact.” [Citation.]’ [Citation.]”].)
The special motion
to strike these allegations is granted.
Statement No. 2 regarding Embezzlement Allegations:
The
Complaint alleges that Defendants published the following statement: “The person behind the team in the
embezzlement of Armenian Genocide Victims Settlement Funds: Western Diocese’s
Arch. Hovnan Derderian. . . . Arch. Derderian is directly involved in the
numerous acts of misappropriation of funds.” (Compl., ¶ 12 (A) [Statement No.
2].)
Defendants contend that this statement was based on a March
23, 2022 LA Times investigative article entitled “A ‘blood money’ betrayal: How
corruption spoiled reparations for Armenian genocide victims.” (Jabarian Decl.,
¶ 13, Ex. E.) The article described the widespread misappropriation of class
action settlement funds intended for descendants of Armenian Genocide victims.
Based on this article, Defendants argue that he concluded
that Plaintiff was involved in this misappropriation because Plaintiff is the
highest-ranking authority in the Western Diocese and “nothing of consequence is
done in the Western Diocese without Plaintiff’s approval.” (Jabarian Decl., ¶
17.)
Admittedly, the Los Angeles Times article does not mention
Plaintiff’s name or the Western Diocese at all. (Jabarian Decl., RJN Ex. E.) However,
Defendant explains that, as reported in the LA Times, $450,000 in class action
settlement funds was to be given to the Armenian Apostolic Church in Armenia
and one of the class action attorneys, Mark Geragos, paid $450,000 in
settlement funds to the Western Diocese for routing to the Church in Armenia, but
those funds were never received by that Church. (Jabarian Decl., ¶ 15.)
Whether true or false, Defendant submits his basis for the statement
suggesting a subjective belief that the statement was not false; even Plaintiff’s
own evidence does not support malice. (Esper Decl., Ex. [Depo. Trans.
83:1-98:21].)
Defendants also argue that this was merely a statement of
opinion regarding disclosed facts. Here, the Court disagrees.
It is true that statements of pure opinion are
constitutionally protected; however, “where an expression of opinion implies a
false assertion of fact, the opinion can constitute actionable defamation.” (ZL
Technologies, Inc. v. Does 1-7 (2017) 13 Cal.App.5th 603, 624; Bently
Reserve LP v. Papaliolios, supra, 218 Cal.App.4th at p. 427.)
The statement here is not an opinion but is asserted as a
statement of fact that Plaintiff was directly involved in specific acts of
misconduct.
The special motion
to strike these allegations is granted.
Statements Nos. 3 and 4 regarding Plaintiff’s
Expulsion from the Seminary:
The Complaint alleges that Defendant
published the following statements: “Arch. Derderian Expelled from Cilician Catholicosate in
Lebanon for Breaking His Celibacy Vows. He Was Caught in Engaging [sic] Illegal
Sexual Acts” (Statement No. 3); and “[T]he young Derderian’s mother received
complaints from other mothers for [the Archbishop’s] sexual pass at other
boys…[and] decides to cover up his sexual tendencies by enlisting him as a
young student-priest for celibate priesthood. But he gets caught in an illegal
sexual act. He gets expelled from the convent.” (Statement No. 4). (Compl., ¶
12(C).)
Plaintiff submitted evidence that he
was not “kicked out” of the Cilicia seminary. (Derderian Decl., ¶ 5.) Plaintiff’s
evidence is sufficient to show the statements at issue here are false. However,
Plaintiff does not submit evidence that the statement was made with malice.
Defendants submits evidence that Jabarian continues to believe
the reports of Plaintiff’s expulsion from the seminary in Antelias, Lebanon are
true. (Jabarian Decl., ¶¶ 31-35.) Defendant also
submits evidence that the truth of these statements were corroborated by two
other declarants. (Bagramyan Decl., ¶ 5; Halladjian Decl., ¶¶ 5-6.)
As with the statements above, Plaintiff has not demonstrated
with clear and convincing evidence the Defendants’ malice. That is, Plaintiff
submits no evidence suggesting that the named individuals who made these
statements to Defendants were biased or that Defendants should have suspected
that the statements from these persons were obviously untruthful.
The special motion
to strike these allegations is granted.
Statements
Nos. 6 and 7 Misappropriation of Funds:
The Complaint also alleges that Defendant published the
following statement: “Many are now convinced that the three
former regime kleptomaniacs - former Presidents Levon Ter-Petrosyan, Robert
Kocharyan and Serzh Sargsyan with Catholicos of All Armenians Karekin II along with his
clansmen such as Western Diocese primate Arch. Hovnan Derderian, Moscow's Arch.
Yezras have perpetrated treason against the Armenian nation. Their treasonous
acts range from acts of sabotage of Armenia/Artsakh's war efforts behind the
front line, cutting off military supply by bribed Army general officers;
corrupt army general officers' unwarranted withdrawal of Armenian army units
from strategic positions, old regime assets' false propaganda designed to
demoralize Armenian frontline soldiers, to massive misappropriation of funds
from Diaspora designated for the twin Armenian republics' economic development
and humanitarian mission."
With respect to Statement No. 6, Defendants argue the
statement was hyperbole and opinion. (Jababrian Decl., ¶¶ 40-42.) The Court
agrees.
“To
determine whether a statement is actionable fact or nonactionable opinion, [courts]
apply a totality of the circumstances test pursuant to which [courts] consider
both the language of the statement itself and the context in which it is made.
[Citation.] On the issue of context, our Supreme Court has explained: ‘[W]here
potentially defamatory statements are published in a ... setting in which the
audience may anticipate efforts by the parties to persuade others to their
positions by use of epithets, fiery rhetoric or hyperbole, language which
generally might be considered as statements of fact may well assume the
character of statements of opinion.’ [Citation.]” (Summit Bank v. Rogers
(2012) 206 Cal.App.4th 669, 696; see also Hawran v. Hixon (2012) 209
Cal.App.4th 256, 289 [“ ‘ “rhetorical hyperbole,” “vigorous epithet[s],” “lusty
and imaginative expression[s] of ... contempt,” and language used “in a loose,
figurative sense” have all been accorded constitutional protection,’ ”].)
As argued in the moving papers, the statement was made in
the context of a diatribe that includes “fiery rhetoric” but lacked specific
verifiable facts. (Jabarian Decl., ¶¶ 41-42.) The totality of the circumstances
of this statement supports finding that Defendants were merely expressing their
belief that Plaintiff was aligned with political and church figures who were
working against Armenia’s best interests in the 44-Day War. (Clifford v.
Trump (C.D. Cal. 2018) 339 F.Supp.3d 915, 926 [statement in tweet found to
be protected opinion because of its “incredulous tone” and being “pointed,
exaggerated, and heavily laden with emotional rhetoric and moral outrage”]; Nat’l
Ass’n of Letter Carriers v. Austin (1974) 418 U.S. 264, 284 [explaining
that the term “traitor” used hyperbolically to question loyalty, not as factual
accusation of treason].)
The Complaint alleges that “While he was the primate [of]
the Canada Diocese, Arch. Derderian misappropriated thousands of dollars from
[Fallen Soldier’s Widows and Orphan Aid] fund.” (Compl., ¶ 12(G) [Statement No.
7].)
Defendant submits evidence that he believes this
misappropriation statement is true. (Jabarian Decl., ¶¶ 43-45.) He states that
the factual basis for this statement came from another source, “respected
financial consultant”
who provided his first-hand account of how Plaintiff misappropriated money from the charitable
foundation that this consultant and his wife created. (Id., Ex. N)
With respect to this statement, Plaintiff’s opposition does
not point to any evidence to support his claim of malice. As such, Plaintiff
has not carried his burden with respect to this statement.
The special motion
to strike these allegations is granted.
Statements
Nos. 5, 8-15 regarding unlawful detainer and malicious prosecution actions:
Statement
No. 5 concerned an unlawful detainer lawsuit that the Western Diocese filed in
2018 against Divine Food and Catering, LLC (“Divine”). The statement held
““[A]n American Judge in the California Superior Court declared as ‘liars’
Arch. Derderian, pastor Manouk Markaryan and his son, the Executive Director of
the Western Diocese, Harout Markaryan.” (Compl., ¶ 17(A).)
Statement No. 8:
“On June 28, 2023, California Appeals Court Judges J. Bendix, P.J. Rothschild,
J. Chaney unanimously granted an appeals motion to award attorney fees to
Plaintiffs Petros Taglyan and his family against Defendants Western Diocese/St.
John Church’s Primate Arch. Hovnan Derderian and his spokesperson Archpriest
Manoug and son Harout Markarian. Harout Markaryan is the Executive Director of
Western Diocese.” (Compl., ¶ 17(B).)
Statement No. 9: “Judges J. Bendix, P.J.
Rothschild, J. Chaney joined four previous U.S. Court judges confirming Western
Diocese’s leaders as ‘liars’ and masters of deception. (In 2019, in the Court,
Judge Hammock had found Arch. Derderian’s representative Pastor Markarian as ‘a
liar.’ Apparently Markarian was ‘authorized’ by Arch. Derderian and the Exec.
Dir. Of the Western Diocese, Pastor Markarian’s son, Harut Markarian to deny
the written agreement with the church benefactor.)” (Compl., ¶ 17(C).)
Statement No. 10:
“After a series of legal battles that started in 2018 (Cases No. B321087,
B321605 [Los Angeles County Super. Ct. No. 21STCV38713]), the June 28 unanimous
verdict highlighted the fact that the “defendants (Western Diocese’s Primate
Hovnan Derderian, Priest Manoug and son Harout Markarian) knowingly concealed
the existence of the written lease, is sufficient to make a prima facie showing
that defendants brought the unlawful detainer action for a wrongful purpose,
either to compel Petros (Dr. Taglyan) to pay additional monies to which they
were not entitled, or to punish him for refusing to do so.” (Compl., ¶ 17(C).)
Statement No. 11:
“In the case ‘Petros Taglyan V. Western Diocese/Hovnan Derderian, Manoug
Markarian’ the “defendants (Western Diocese) do not address the malice element
in their appellate briefing. In their anti-SLAPP motion, their only response to
Divine’s evidence was the conclusory statement that ‘Divine’s claim fails to
prove the essential element of actual ‘malice’; an element that requires proof
of each Defendant’s subjective hared or actual animus.’ The benefactor’s
declaration makes a prima facie showing of animus on the part of Archpriest
Manoug and Harout Markarian, and by extension the entities they represent, the
Diocese and St. John.” (Compl., ¶ 17(D).)
Statement No. 12:
“The court documents also highlighted another critical fact according to which
‘Defendants (Western Diocese’s Archb. Derderian Archpriest Markarian and their
attorneys Brian S. Kabateck his associate Shant A. Karnikian, Esq. and others)
offer no valid basis to strike the cause of action for conspiracy to commit
malicious prosecution.’” (Compl., ¶ 17(E).)
Statement No. 13:
“The Appeals Court Judges further clarified that the ‘Defendants (Western
Diocese’s Archb. Derderian Archpriest Markarian and their attorneys Brian S.
Kabateck, Esq. his associate Shant A. Karnikian, Esq. and others) offer no
other valid basis to strike the cause of action for conspiracy to commit
malicious prosecution.’” (g) Statement No. 14: “Judge rejects Western Diocese
Arch. Derderian’s, Pastor Manoug Markarian’s request and orders payment of all
court costs incurred by Dr. Taglyan’s” (Compl., ¶ 17(F).)
Statement No. 15:
“In Oct. 2019, Western Diocese’s Arch. Hovnan Derderian and Pastor Manoug
Markarian were back in court to ask Superior Court Judge Randolph H. Hammock to
award a reduction of payment to Dr. Petros Taglyan for the latter’s court
costs. The Judge heard the case (no. 18STCV02144) and issued a verdict
reconfirming the outcome of a court proceeding that took place earlier in the
year. Arch. Derderian’s Western Diocese must pay all court costs incurred by
Dr. Petros Taglyan.” (Compl., ¶ 18(B).)
Defendant argues
that Plaintiff’s claims based on these statements are barred by the “fair and
true report” privilege affording protection to truthful reporting of judicial
proceedings. That is, Statement Nos. 5 and 8-15 are protected fair and true
reports that capture the “gist and sting” of court proceedings.
As summarized by the Supreme Court
in Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 262,
footnote 13, in measuring what constitutes “a ‘fair and true report’ ” the
defendant is “permit[ted] a certain degree of flexibility/literary license”: “
‘ “ ‘If the substantial imputations be proved true, a slight inaccuracy in the
details will not prevent a judgment for the defendant, if the inaccuracy does
not change the complexion of the affair so as to affect the reader of the
article differently than the actual truth would.’ ” ’ ” (Ibid.; see GetFugu,
Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 154, 162
Cal.Rptr.3d 831 [“ ‘[m]inor inaccuracies do not amount to falsity so long as
“the substance, the gist, the sting, of the libelous charge be justified,” ’
”]; Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325,
1337, 93 Cal.Rptr.3d 782 (Balzaga ) [“[t]he privilege applies if the
substance of the publication or broadcast captures the gist or sting of the
statements made in the official proceedings”].)
“In assessing this question, ‘the
[publications] [are] to be measured by the natural and probable effect [they]
would have on the mind of the average reader. [Citations.] The standard of
interpretation to be used in testing alleged defamatory language is how those
in the community where the [matters] [were] published would reasonably
understand [them].’ ” (Kilgore v. Younger (1982) 30 Cal.3d 770, 777; see
Carver v. Bonds (2005) 135 Cal.App.4th 328, 344-345 [a statement is not
considered false unless it would have a different effect on the mind of the
reader from that which the truth would have produced].)
Plaintiff argues that this privilege
does not apply because, contrary to the statements, Plaintiff was not even a
party to the litigation. With respect to this argument, Defendant notes that the Western Diocese was a party to
the proceedings at issue. Given Plaintiff’s position as “head” of the Western
Diocese, this slight inaccuracy falls within the protections of this privilege.
The Court agrees finding that this inaccuracy does not “change the complexion
of the affair so as to affect the reader of the article differently than the
actual truth would.” (J-M Mfg. Co., Inc. v. Phillips & Cohen LLP
(2016) 247 Cal. App. 4th 87, 100.)
Similarly, the statements asserting that courts had found
that Plaintiff and his representatives were “liars” and “masters of deception”
falls within the privilege. Here, the Court of Appeal in the unlawful detainer
action specifically acknowledged the trial court’s finding that the Western
Diocese’s principal witness was “not credible at all” at trial, and on that
basis affirmed sanctions against the Western Diocese. (Jabarian Decl., Ex. P,
p. 11.) These statements – although not entirely accurate – captured the “gist
and sting” of the proceedings and are within a reporter’s degree of literary
license. (Sipple v. Foundation For Nat. Progress (1999) 71 Cal.App.4th 226, 242.)
Accordingly, Plaintiff has failed to
make a minimum prima facie showing for his claims and, therefore, has not met his
burden on the second prong.
Conclusion
The special motion to
strike pursuant
to Code of Civil Procedure section 425.16 is granted.