Balzaga v. Fox News Network, LLC

• Decision Date: 14 May 2009
• Docket Number: No. D052743.,D052743.
• Citation: 173 Cal.App.4th 1325,93 Cal. Rptr. 3d 782
• Court: California Court of Appeals Court of Appeals
• Parties: JOSE BALZAGA et al., Plaintiffs and Appellants, v. FOX NEWS NETWORK, LLC, Defendant and Respondent.

173 Cal.App.4th 1325

93 Cal. Rptr. 3d 782

JOSE BALZAGA et al., Plaintiffs and Appellants, v. FOX NEWS NETWORK, LLC, Defendant and Respondent.

No. D052743.

Court of Appeals of California, Fourth District, Division One.

May 14, 2009.

Mitchell & Gilleon, James C. Mitchell and Daniel M. Gilleon for Plaintiffs and Appellants.

Sheppard Mullin Richter & Hampton and Guylyn R. Cummins for Defendant and Respondent.

OPINION

HALLER, J.—

The Fox News Network, LLC, broadcast a four-minute story featuring an anti-illegal immigration activist, John Monti, who claimed he was attacked by several immigrants seeking work as day laborers. During the broadcast, Monti described the attack and showed a poster of photographs he had taken of his alleged attackers. Monti also complained that the police were not taking the matter seriously and discussed the larger problems associated with illegal immigrants living in outdoor "migrant camps." During the entire story, the caption "MANHUNT AT THE BORDER" was displayed at the bottom of the television screen.

Seven of the individuals whose photographs were shown on the poster (plaintiffs¹) filed a complaint against Fox News Network, LLC (Fox News), alleging a defamation cause of action.² Fox News moved to strike the complaint under California's anti-SLAPP law.³ Plaintiffs conceded their claim was governed by the anti-SLAPP statute, but argued the motion should be denied because there was a probability they would prevail on their defamation claim. After considering the parties' submissions and arguments, the court found plaintiffs did not meet their burden to show a probability of prevailing on their claim, and granted the motion. Plaintiffs appeal. We affirm.

Plaintiffs' defamation action against Fox News is predicated on their claim that the "MANHUNT AT THE BORDER" caption falsely suggested that law enforcement was conducting a search for plaintiffs. We conclude that, when considered in context of the entire telecast, the caption was not reasonably susceptible to this meaning. Thus, plaintiffs did not meet their burden to establish a probability of prevailing on their defamation claim, and the court properly granted defendant's anti-SLAPP motion.

FACTUAL SUMMARY

On November 18, 2006, John Monti was taking photographs of several men who work as day laborers, when he became involved in a physical dispute with one or more of these individuals. Later that day, Monti reported to the police that he had been attacked by these men. Police officers arrested one of the day laborers, Jose Balzaga, but released him after questioning. The police then continued to investigate.

Ten days after the incident, while the police investigation was continuing, Monti appeared on Fox News's Hannity & Colmes television show to discuss his version of the events and other issues related to immigration. Because this telecast is the basis for plaintiffs' claims against Fox News, we set forth the contents of the show in some detail.

The telecast begins by showing closeups of wounds on a person's hands and face. Underneath these pictures, the caption states "MANHUNT AT THE BORDER." This caption remained throughout the four-minute story. While the closeups of the wounds were shown, one of the news anchors, Alan Colmes, stated: "The San Diego Police are investigating an attack on an anti-illegal immigration advocate near a migrants' encampment close to the San Diego/Mexico border. The victim managed to take these photographs of his alleged attackers before the crime took place, and now needs your help. We're joined now from the scene of the incident by the assault victim, John Monti. John, thanks for being with us. Explain to us what happened to you, what was going on."

Monti, who is standing in a canyonlike area, responded: "[T]hank you for this opportunity to tell my story . . . this is what happened . . . . I had come out to take pictures of the . . . migrants along . . . Rancho Penasquitos Boulevard here in San Diego . . . . [T]he reason why we want to do this is because . . . these day labor spots . . . feed these migrant encampments . . . . I was taking pictures of them, and I wanted to take pictures of some of their employers [who are] employing . . . these men, who are basically living in squalor along the roadsides."

Monti then described in detail how he was attacked by the men while he was taking the photographs. While Monti was discussing the attack, the cameras showed a poster with the photographs of plaintiffs. The poster was entitled "Wanted [—] Robbery, Assault and Battery." The cameras then showed a closeup of each photograph.

During the description of the attacks, the other news anchor, Sean Hannity, interrupted and said: "You referred to this as a hate crime. Lieutenant Tom Warden [of the San Diego Police Department] there says it's not a hate crime, but [the men] were upset because you were taking photographs. Not because what you were doing was illegal, but that clearly sparked their behavior."

Monti responded: "Well, . . . you know, what I think the real hate crime here . . . is how the San Diego Police Department is you know responding to this crime. I mean, if it had been eight white guys attacking a migrant, I think they would have already tried and convicted . . . the people in the court of public opinion. And, you know, we would have heard of all this sanctimonious rhetoric already about how this could never happen again...."

Hannity then stated: "I want to make sure for our audience's edification, here—those pictures that we're putting up, those are the pictures that you took of the people that eventually attacked you, correct?"

Monti responded: "Yeh, yeh that is correct. I took their pictures." Monti then engaged in a lengthy narrative about the problems of "migrant camps" in San Diego County. During this narrative, the news anchors attempted to interrupt Monti, but they were unable to do so. Monti's narrative was as follows: "Now what you have to understand here is that, in San Diego County, there is a tremendous problem with these migrant camps, these shanty towns that exist where you have groups of men you know who live outdoors. [¶] . . . [¶] And the reason why they live here, you know—they live there for a number of reasons. Now, the popular belief is to say, oh, it has to be all poverty because they're all poor migrants. But the thing is though . . . many of them choose to live out there because, you know, they don't want to pay rents, or they have personal problems. [¶] . . . [¶] And what we want to see happen is we want these migrant camps removed; you know, the men should have to live in apartments and houses like everyone else. [¶] . . . [¶] These are crime zones. It has to be understood. We have . . . all sorts of crimes. Recently NBC reporter [Ana] Garcia did reports on these . . . encampments. You know we find drug abuse there. You know, every, it seems that every . . . child prostitution spot in the County seems to have a migrant camp associated with it. You know and we want to end you know these crimes. And ending these crimes is going to involve removing these camps. And that's why, you know, we uh, I came out here, and I was going to come out here with other activists to take pictures in order to let people know, you know, you're feeding those camps. . . . And you know there is just, you know, and I mean there's more to it than just . . . . You know there is."

Finally, Colmes interrupted and said: "We're just out of time for this segment. I know there's a lot more to the story—we'll be following it, and we thank you very much for coming and telling your story to us tonight, John. Thank you very much. . . ."

Several months after the show, plaintiffs demanded a retraction, but Fox News declined. Fox News instead invited plaintiffs and their counsel to appear on a show to address Monti's allegations and present their side of the incident. This show aired in March 2007.

The city attorney later brought misdemeanor charges against Monti based on his conduct arising from the November 18 incident. At the September 2007 trial, the jury returned not guilty verdicts on all charges, which included battery, assault, and filing a false police report.

The next month, plaintiffs filed the lawsuit that is the subject of this appeal. The complaint alleged the following: On November 18, 2006, Monti went to a "day laborer site" in northern San Diego County, and taunted the day laborers, called them derogatory names, and photographed them. When one of the plaintiffs attempted to hide his face, Monti grabbed his arm and then chased him, tackled him and punched him several times. Monti then falsely reported to the San Diego Police Department that he had been "attacked" by the day laborers. Shortly after, Monti created a poster with photographs of nine men whom he had encountered at the day laborer site. The photographs were arranged under a caption stating plaintiffs were "Wanted [for] Robbery, Assault and Battery." The bottom of the poster stated that the men in the photographs were "`suspects,'" and directed anyone who saw or had information about them to call the San Diego Police Department. Monti and others then handed out copies of the posters, and Monti worked with the San Diego Minutemen organization to identify and locate the alleged "`suspects.'" About 10 days after the incident, Monti appeared on the Hannity & Colmes television show, and falsely accused plaintiffs of attacking him. The broadcast showed Monti's wanted poster with the photographs, but did not show the bottom statement that plaintiffs were "`suspects.'"⁴

Based on these facts, plaintiffs asserted a defamation cause of action against Fox News. Plaintiffs claimed that Fox News "misrepresented that plaintiffs had committed violent crimes and falsely described them as `wanted' criminals," and these statements were "unprivileged, untrue, and naturally harmful to plaintiffs' reputations." Plaintiffs alleged...