Barrett v. Rosenthal, No. A096451.

• Court: California Court of Appeals
• Writing for the Court: Kline
• Citation: 9 Cal.Rptr.3d 142,114 Cal.App.4th 1379
• Parties: Stephen J. BARRETT et al., Plaintiffs and Appellants, v. Ilena ROSENTHAL, Defendant and Respondent.
• Docket Number: No. A096451.
• Decision Date: 21 January 2004

9 Cal.Rptr.3d 142 114 Cal.App.4th 1379 Stephen J. BARRETT et al., Plaintiffs and Appellants,
v.
Ilena ROSENTHAL, Defendant and Respondent. No. A096451. Court of Appeal, First District, Division 2. January 21, 2004. Certified for Partial Publication.^* As Modified Feb. 3, 2004.^** Review Granted April 14, 2004.

[9 Cal.Rptr.3d 143]

Christopher E. Grell, Richard F. Rescho, Ian P. Dillon, Law Offices of Christopher E. Grell, Oakland, for Appellants.

Mark Goldowitz, Berkeley, Jesper Rasmussen, San Francisco, California Anti-SLAPP Project, for Respondent.

Lee Tien, Electronic Frontier Foundation, San Francisco, Ann Brick, American Civil Liberties Union Foundation of Northern California, for Amicus Curiae in support of Respondent.

KLINE, P.J.

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

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lawsuit against public participation under Code of Civil Procedure section 425.16 (hereafter section 425.16 or the anti-SLAPP statute). 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 vacate the order as it applies to appellant Polevoy and affirm it in all other respects.

BACKGROUND

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 Web sites 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 "

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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." Bolen described "THE FACTS" as follows: "Polevoy, police reports show, STALKED Canadian Radio Personality Christine McPhee, until, terrified, she called in police. He followed her around, affecting disguises, for months — then further terrified her by e-mailing her the details of his stalking actions. Police agencies felt it necessary to assign armed uniformed officers to protect McPhee from Polevoy. Reports show that McPhee was not the only female Polevoy stalked." Bolen described Polevoy's conduct as part of a "criminal conspiracy" and urged readers to bring this and other unspecified "criminal" acts to the attention of various governmental agencies and 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

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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 or a reference back to that 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 "falsely stating that `there are bunches of coming to him to run that PRO-AMA anti alt.med website. PR pays well, and surely he takes in more than $25K per year.'"

(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 27-page 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 (CDA) of 1996 (47 U.S.C. § 230 (section 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 make a prima facie showing 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 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 the court 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

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prevail because he could not show "actual malice" or actual monetary loss. The court should not have decided the question of malice without allowing discovery as to that issue; and, because the defamatory language is libelous on its face, Polevoy need not allege and prove special damages (parts III.B and III.C). For these reasons we vacate 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 affirm the ruling that appellants' counsel was subject to an order requiring payment of attorney fees (part IV), and direct the trial court to recalculate the amount of fees respondent is entitled to receive (part V).

DISCUSSION I. Burden of Proof and Standard of Review

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...