Taus v. Loftus, S133805.

• Decision Date: 26 February 2007
• Docket Number: No. S133805.,S133805.
• Citation: 54 Cal.Rptr.3d 775,40 Cal.4th 683,151 P.3d 1185
• Court: California Supreme Court
• Parties: Nicole TAUS, Plaintiff and Respondent, v. Elizabeth LOFTUS et al., Defendants and Appellants.

54 Cal.Rptr.3d 775

40 Cal.4th 683

151 P.3d 1185

Nicole TAUS, Plaintiff and Respondent, v. Elizabeth LOFTUS et al., Defendants and Appellants.

No. S133805.

Supreme Court of California.

February 26, 2007.

Davis Wright Tremaine, Thomas R. Burke, San Francisco, Rochelle L. Wilcox,

Los Angeles; Christopher Patti, Oakland; Selman-Breitman, Jeane Struck, Gregg A. Thornton, San Francisco; Rutan & Tucker and Duke F. Wahlquist, Costa Mesa, for Defendants and Appellants Elizabeth Loftus, Melvin Guyer, Carol Tavris, the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP), Skeptical Inquirer and Center for Inquiry West.

John P. Hollinrake, Walnut Creek, and Demosthenes Lorandos for Defendant and Appellant Shaprio Investigations.

R. Chris Barden; Bishop, Barry, Howe, Haney & Ryder and Mark C. Raskoff, Emeryville, for National Committee of Scientists for Academic Liberty as Amicus Curiae on behalf of Defendants and Appellants.

Thomas A. Pavlinic and Kristine M. Burk, Woodland Hills, for The False Memory Syndrome Foundation as Amicus Curiae on behalf of Defendants and Appellants.

Levine Sullivan Koch & Schulz, James E. Grossberg, Seth D. Berlin, Jeanette Melendez Bead; Harold W. Fuson, Jr., La Jolla; Michael Kahane, Barbara Tarlow; Cohn & Marks, Kevin M. Goldberg; Charles J. Glasser, Jr.; Peter Scheer, San Francisco; Thomas W. Newton, Sacramento, James W. Ewert; Anthony M. Bongiorno; David M. Giles; Barbara W. Wall; Jonathan Donnellan, Kristina E. Findikyan; Karlene W. Goller, Los Angeles; Stephen J. Burns, Sacramento; King & Ballow, Tonda Rush; Susan E. Weiner, James Lichtman, Craig Bloom, Sylmar; George Freeman, David E. McCraw; Wiley Rein & Fielding, Kathleen A. Kirby; Lucy A. Dalgish, Gregg P. Leslie, Baker & Hostetler, Bruce W. Sanford, Robert D. Lystad, Bruce D. Brown; and Robin Bierstedt for The Copley Press, Inc. American Media, Inc., The American Society of Newspaper Editors, Bloomberg News, California First Amendment Coalition,

California Newspaper Publishers Association, CBS Broadcasting, Inc., CBS Radio, Inc., The E.W. Scripps Company, Freedom Communications, Inc. dba The Orange County Register, Gannett Co., Inc., The Hearst Corporation, Los Angeles Times Communications LLC, The McClatchy Company, National Newspaper Association, NBC Universal, Inc., The New York Times Company, Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and Time Inc. as Amici Curiae on behalf of Defendants and Appellants.

McCloskey, Hubbard, Ebert & Moore, Hubbard & Ebert and Julian J. Hubbard, Redwood City, for Plaintiff and Respondent.

A. Steven Frankel for The Leadership Council on Child Abuse & Interpersonal Violence as Amicus Curiae on behalf of Plaintiff and Respondent.

GEORGE, C.J.

Plaintiff in this action, Nicole Taus, was the unnamed subject of a "case study" set forth in a prominent scholarly article describing her apparent recovery of a longrepressed memory of childhood abuse. (The article referred to plaintiff as "Jane Doe.") Defendants are the authors and publishers of two subsequent articles that, in questioning the basic premise advanced by the initial article, disclosed various aspects of plaintiffs family background and personal life but did not disclose her identity. (Like the initial article, defendants' articles referred to plaintiff as "Jane Doe.")

Shortly after the later articles were published, plaintiff filed the present action against defendants, challenging defendants' activities in investigating, publishing, and thereafter publicly discussing their articles and investigation. The complaint asserted that defendants improperly had invaded plaintiffs privacy and committed other tortious conduct by investigating plaintiffs background and discovering and disclosing information concerning her private life without her consent.

Defendants responded by filing special motions to strike; the complaint pursuant to California's anti-SLAPP statute (Code Civ. Proc, § 425.16),¹ asserting that the complaint sought to impose liability upon them for actions that were undertaken in furtherance of their constitutional right of free speech. The trial court denied the motions in large part, concluding that the bulk of plaintiffs claims should be permitted to go forward. On appeal, the Court of Appeal held that most of the claims set forth in the complaint should be dismissed under the anti-SLAPP statute, but also concluded that the suit could proceed with regard to four aspects of defendants' conduct that were challenged in the complaint.

Following the Court of Appeal's decision, only defendants sought review in this court. The petition for review contended that although the Court of Appeal was correct in dismissing the bulk of plaintiffs claims, the appellate court had erred in permitting any aspect of the action to go forward. We granted review to consider whether the Court of Appeal correctly determined that plaintiff's suit could proceed as to the four points challenged by defendants.

As explained hereafter, we conclude that the Court of Appeal erred with respect to three of those claims, but that it correctly determined that dismissal is not warranted at this juncture with regard to one of the claims advanced by plaintiff. Accordingly, we shall reverse in part and affirm in part the judgment rendered by the Court of Appeal.

I

The relevant facts in this case are set forth in some detail in the Court of Appeal's opinion in this matter, and because neither party has taken issue with that court's statement of facts, we shall adopt that portion of the Court of Appeal's opinion, with minor supplementation and stylistic changes.

A. Background—Published Articles

The dispute between these parties arises out of the publication of three articles that appeared in two scientific journals between May 1997 and August 2002.

1. The 1997 Child Maltreatment Article

The May 1997 issue of Child Maltreatment, a scientific journal published by the American Professional Society on the Abuse of Children, contains an essay, authored by David Corwin and Ema Olafson,² entitled Videotaped Discovery of a Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison With a Childhood Interview Videotaped 11 Years Before (2 Child Maltreatment 91 [hereafter the Child Maltreatment article]).

The Child Maltreatment article contains the following summary of its contents: "This article presents the history, verbatim transcripts, and behavioral observations of a child's disclosure of sexual abuse to Dr. David Corwin in 1984 and the spontaneous return of that reportedly unrecallable memory during an interview between the same individual, now a young adult, and Dr. Corwin 11 years later. Both interviews were videotape recorded. The significance, limitations, and clinical implications of this unique case study are discussed. Five commentaries by researchers from differing empirical perspectives who have reviewed these videotape-recorded interviews follow this article." (Child Maltreatment article, supra, at p. 91.)

The young woman who is the subject of the Child Maltreatment article was referred to throughout the article as "Jane Doe" (hereafter sometimes just "Jane"), and all the names of persons and places relating to her story were changed with the exception of the identity of Corwin, who conducted the interviews. According to the article, Corwin became involved in Jane's case in 1984 after Jane's father accused her mother of physically and sexually abusing her. The allegations were made in the context of a custody dispute, and Corwin was appointed by the court to conduct an evaluation.

The Child Maltreatment article contains excerpts from three interviews conducted by Corwin in 1984 when Jane was six years of age. During each interview, Jane told Corwin that her mother had rubbed her finger inside Jane's vagina while giving her a bath. The specific excerpts that are repeated in the article include Jane reporting that her mother first had done this to her when she was three, that these actions hurt, and that her mother had warned she would do "something" to Jane if Jane told her father what her mother had done. During the third interview, Jane consistently maintained that nobody told her to say these things about her mother and that she was not lying. At one point, Corwin inquired whether Jane's mother had said anything when she placed her finger there. Jane reported that her mother asked: "That feel good?," and that Jane had replied no. Jane also said that this had happened on more than 20 occasions and closer to 99 during the time she lived with her mother. (Child Maltreatment article, supra, at pp. 94, 100-101.)

The excerpts from the 1984 interviews are interspersed with analysis and with Corwin's conclusions, first drawn and testified to in 1984, that: (1) Jane was physically and sexually abused by her mother, and (2) Jane's mother falsely accused Jane's father of abusing Jane and attempted to coerce Jane into verifying the false accusation. The authors of the Child Maltreatment article reported that their article relied upon background sources in addition to the 1984 interviews, including reports by Child Protective Services and the police, court files and decisions pertaining to the parents' divorce and contentious custody battle, and reports by other evaluators and therapists. According to the article, Jane's statements to Corwin were consistent with statements she previously made to other evaluators. Jane's prior reports of inappropriate behavior by her mother included "`striking her on several parts of her body, burning her feet on a hot stove, and invading and hurting her genitals and anus with her hands.'" (Child Maltreatment article, supra, at p. 95.)

The Child Maltreatment article also contains a transcript of an interview of Jane conducted by Corwin on October 15, 1995 when Jane was 17 years of age. According to ...