Barrett v. Rosenthal
| Decision Date | 15 October 2003 |
| Docket Number | No. A096451.,A096451. |
| Citation | 5 Cal.Rptr.3d 416,112 Cal.App.4th 749 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Stephen J. BARRETT et al., Plaintiffs and Appellants, v. Ilena ROSENTHAL, Defendant and Respondent. |
Attorneys for Appellants: Christopher E. Grell, Richard F. Rescho, Ian P. Dillon, Law Offices of Christopher E. Grell, Oakland.
Attorneys for Respondent: Mark Goldowitz, Berkeley, Jesper Rasmussen, San Francisco, California Anti-SLAPP Project.
Attorneys for Amicus Curiae in support of Respondent: Lee Tien, Electronic Frontier Foundation, Ann Brick, American Civil Liberties Union Foundation of Northern California.
Stephen J. Barrett, M.D. and Terry Polevoy, M.D. appeal from the trial court's order striking their complaint for libel, libel per se and conspiracy as a strategic lawsuit against public participation under Code of Civil Procedure section 425.16 (). They challenge the trial court's findings that the anti-SLAPP statute applies to allegedly libelous statements respondent Ilena Rosenthal caused to be distributed on the Internet, and that appellants could not establish a probability of prevailing on their claims. They also challenge the trial court's award of attorney fees and costs to Rosenthal; its refusal to exempt their attorney from the order directing payment of Rosenthal's attorney fees and costs; and its refusal to allow appellants discovery. We shall reverse the order as it applies to appellant Polevoy and affirm it in all other respects.
Appellants Barrett and Polevoy are physicians primarily engaged in combating the promotion and use of "alternative" or "nonstandard" healthcare practices and products. Appellants have allegedly achieved national renown as consumer advocates; each maintains websites that expose "health frauds and quackery" and provide guides for consumers to make intelligent health care decisions. In their writings, appellants attack "products, services and theories that are marketed with claims that [are] false, unsubstantiated, and/or illegal," and their work has assertedly "aroused great concern among promoters of such methods," many of whom believe that destroying appellants' reputations "would increase [the promoters'] success in the marketplace." Although he is an American citizen, appellant Polevoy resides and practices medicine in Canada.
Respondent Rosenthal directs the Humantics Foundation for Women, and participates in two Usenet1 "newsgroups,"2 which focus on "alternative medicine." According to appellants, Rosenthal is a particularly active distributor of information via the Internet. During a two-year period ending on May 21, 2001, she assertedly "posted 10,900 messages to newsgroups— an average of 15 per calendar day." Appellants contend that one or both of them were mentioned in more than 200 of these messages, all of which were intended to injure their reputations.
Appellants commenced this civil action for damages action against Rosenthal and others,3 claiming libel, libel per se, and conspiracy. Christopher E. Grell, appellants' attorney at trial and in this court, was also a named plaintiff. On May 31, 2001, Grell moved to dismiss his action as against Rosenthal only, and this dismissal was entered on June 4, 2001.
As the trial court noted, the complaint does not specify which of the several defendants posted the many allegedly libelous online statements it describes, and specifically identifies Rosenthal as the poster of only five such statements, which are the following:
(1) On or about August 14, 2000, Rosenthal commenced distributing on two Usenet newsgroups an e-mail message she received from another defendant, Timothy Bolen. According to the complaint, the message accused Dr. Polevoy of "stalking women" and urged "`health activists ... from around the world' to file complaints to government officials, media organizations, and regulatory agencies." Sample complaints to governmental agencies were also provided. The republished statements claimed Polevoy stalked Christine McPhee, a Canadian radio personality whose program in support of "alternative medicine" he disliked. According to Bolen, Polevoy "terrified" McPhee by e-mailing her the details of his stalking activities. McPhee allegedly sought police protection and "the police kept two uniformed officers on site for some time, to deal with Polevoy." The Bolen statement described Polevoy's conduct as part of a "criminal conspiracy" and urged readers to bring this and other unspecified "criminal" conduct to the attention of various governmental officials, urging them to use their influence to see that "a criminal investigation" of Polevoy's "subversive" activities "begins immediately."4
(2) Shortly after she first republished Bolen's message, appellants informed Rosenthal it was false and defamatory, asked that it be withdrawn, and threatened suit if it was not. Rosenthal refused to withdraw the message and, on unspecified dates, posted 32 additional messages on specified Internet newsgroups describing appellants' threat accompanied by a copy of Bolen's allegedly defamatory message and referring to appellants as, among other things, "quacks." The title of these messages contained the words: "Slea[z]y `Quackbuster' Scam."
(3) On June 28, 2000, Rosenthal posted to a specified Internet newsgroup a message referring to Dr. Barrett and "
(4) On August 18, 2000, Rosenthal posted to a specified newsgroup "a message falsely stating that `Quackwatch appears to be a power-hungry, misguided bunch of pseudoscientific socialist bigots'; is an `industry funded organization'; and is being sued by many doctors and health organizations."
(5) On October 9, 2000, Rosenthal posted to a specified newsgroup a message entitled "Re: Quackbuster Barrett *is* a quack—by his own definition," which repeatedly referred to Drs. Barrett and Polevoy as "quacks."
After she answered the complaint, Rosenthal filed a special motion to strike the complaint as to her, claiming it was a "strategic lawsuit against public participation" under section 425.16. In a 27page written order, the trial court granted Rosenthal's motion to strike finding that her publications of the foregoing statements were acts "in furtherance of [her] right of petition or free speech under the United States or California Constitution in connection with a public issue" (§ 425.16, subd. (b)(1)), and therefore covered by the anti-SLAPP statute. The court also determined appellants could not establish a probability of prevailing on their claims, as the statute requires. This latter determination rested on the conclusions that, with one exception—the statements alleging that appellant Polevoy had engaged in criminal conduct—Rosenthal's alleged libels were not demonstrably false statements of facts. The trial court also found Rosenthal immune from liability for the reposting of Bolen's statements under section 230 of the Communications Decency Act of 1996 (47 U.S.C. § 230), viewing the statute as protecting her from liability even if the republished charge that Polevoy had engaged in criminal conduct was false and defamatory. Additionally, the court found that appellants could not show that Rosenthal reposted Bolen's statements with actual malice, as they would need to do in order to establish a probability of prevailing on the merits of their defamation claims, because they were both public figures. Finally, the court found that appellants' claims failed because appellants had not produced competent evidence they suffered any actual monetary damage as a result of Rosenthal's publications. The trial court denied appellants' request to conduct discovery for the purpose of producing such evidence.
In the published portion of this opinion we discuss the standard of review (part I), find that the trial court correctly concluded that the anti-SLAPP statute applies to this case (part II), and that appellant Barrett failed to make out a case of defamation, but that it erred in finding appellant Polevoy could not do so due to application of the federal immunity (parts III and III.A). In the unpublished portion we further conclude that the trial court also erred in finding that Polevoy could not prevail because he could not show malice or actual monetary loss (parts III.B & III.C). For these reasons we reverse the order granting the special motion to strike pursuant to section 425.16 insofar as it relates to appellant Polevoy and remand the matter for further proceedings. In the unpublished portion we also determine that it was error to deny appellants' request for discovery as it relates to Polevoy's claim (part IV), affirm the ruling that appellants' counsel was subject to an order requiring payment of attorney fees (part V), and direct the trial court to recalculate the amount of fees respondent is entitled to receive (part VI).
Section 425.16 provides, as material, 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 or 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." (§ 425.16, subd. (b)(1).) This language necessitates a two-step process for determining whether an action is a SLAPP. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th...
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