Calvert v. Fox Television Stations, LLC

• Decision Date: 25 May 2022
• Docket Number: B310772
• Parties: JAY W. CALVERT et al., Plaintiffs and Respondents, v. FOX TELEVISION STATIONS, LLC et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

JAY W. CALVERT et al., Plaintiffs and Respondents, v. FOX TELEVISION STATIONS, LLC et al., Defendants and Appellants.

B310772

California Court of Appeals, Second District, Seventh Division

May 25, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of Los Angeles County No 20STCV21742, Stephanie M. Bowick, Judge. Affirmed in part reversed in part, and remanded with directions.

Davis Wright Tremaine, Kelli L. Sager, Dan Laidman and Sarah Burns for Defendants and Appellants Fox Television Stations, LLC William Melugin, Daniel Leighton and Kris Knutsen.

Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Defendant and Appellant Michael Houston.

Johnson & Johnson, Neville L. Johnson, Douglas L. Johnson, Aleeza L. Marashlian; and Rodney A. Smolla for Plaintiffs and Respondents.

FEUER J.

Fox Television Stations, LLC (Fox), William Melugin, Daniel Leighton, and Kris Knutsen (collectively, the Fox defendants) and Michael Houston appeal from orders denying their special motions to strike (Code Civ. Proc., § 425.16; anti-SLAPP statute)^[1] the complaint filed by Dr. Jay W. Calvert, a nationally recognized plastic surgeon, and Jay Calvert, M.D., Professional Corporation (the professional corporation) (collectively, the Calvert plaintiffs). This case arises from the Fox defendants broadcasting and publishing news reports about a civil lawsuit filed against Dr. Calvert by his former patient Natalie West alleging insurance fraud and medical battery. The reports included statements by Houston that Dr. Calvert had similarly committed acts of insurance fraud in treating him. In response, the Calvert plaintiffs sued the Fox defendants and Houston for defamation. The trial court found that although the defamation claims arose from protected activity, the Calvert plaintiffs had shown a probability of prevailing on their claims.

On appeal, the Fox defendants and Houston contend Fox's reporting, including its interview with Houston, is absolutely privileged under Civil Code section 47, subdivision (d), ^[2] as a fair and true report of a judicial proceeding. Further, the Calvert plaintiffs failed to plead and prove actual malice. The Fox defendants and Houston also argue several of the statements at issue do not constitute actionable defamation.

We agree the Calvert plaintiffs failed to carry their burden to show probability of success on the merits of their defamation claims against the Fox defendants, and we reverse the trial court's order denying the Fox defendants' special motion to strike. However, as to Houston, we conclude Dr. Calvert (but not his professional corporation) carried his burden to show probability of success on his claims against Houston. We therefore affirm the trial court's order denying Houston's special motion to strike as to Dr. Calvert but reverse as to the professional corporation.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Fox Defendants' Reporting on Dr. Calvert^[3]

1. West's lawsuit against Dr. Calvert

On May 31, 2018 West filed a lawsuit against Dr. Calvert, the professional corporation, the University of Southern California (USC), and others, alleging causes of action for fraud, medical battery, breach of contract, and forcible sexual penetration of an unconscious person with a foreign object.^[4](West v. Calvert et al. (Super. Ct. Los Angeles County, 2018, No. BC708415).) West alleged in her second amended complaint that in 2013 Dr. Calvert performed a cosmetic nasal surgery to reconstruct West's nose after a failed reconstructive surgery by another doctor. West paid for the surgery in full, but Dr. Calvert fraudulently billed West's medical insurer for the procedure by falsely characterizing the surgery as a medically necessary correction of a nasal airway obstruction.

West alleged that after the surgery, Dr. Calvert told her the surgery had been "a complete success" but he needed to do two "'tweaks'" in a second surgery. From 2013 through 2017, Dr. Calvert persuaded West to undergo 12 additional unnecessary and harmful nasal surgeries, in order to bill West's insurance carrier for additional procedures. West alleged these surgeries included "multiple unconsented procedures." Further, Dr. Calvert fraudulently double billed for each surgery, requiring West to pay out of pocket while also billing West's insurance carrier for the same work. West alleged Dr. Calvert "essentially treat[ed]" West's health insurance policies as "his own personal ATM machine."

West alleged she consented to have Dr. Calvert perform a procedure on May 31, 2017, but she later learned a USC fellow had performed the surgery. West also alleged that following a nasal surgery performed by Dr. Calvert on September 16, 2014, she suffered severe uterine cramping and discharge. West alleged she was sexually assaulted while under anesthesia during the procedure by an unknown USC student, resident, or fellow who was "attempt[ing] to practice some unknown medical procedure involving [West's] uterus without her prior knowledge or consent." (Italics omitted.) West alleged Dr. Calvert failed to prevent the sexual assault.

2. Letters from Dr. Calvert's counsel to Leighton and Melugin

On April 25, 2019 Dr. Calvert's attorney, Arthur H. Barens, in response to an inquiry regarding Fox-owned television station KTTV's intention to broadcast a report on West's allegations against Dr. Calvert, wrote to KTTV senior producer Leighton, requesting Leighton review West's medical files before airing the report. Barens denied Dr. Calvert "acted inappropriately in either his medical treatment or billing practices." Barens attached a September 25, 2017 letter from Dr. Grant R. Fairbanks to Dr. Calvert regarding West. Dr. Fairbanks wrote he had consulted with West in September 2017 regarding her chronic nasal infection. Dr. Fairbanks had previously treated West in 2009 to remove pieces of a nasal implant. West told Dr. Fairbanks that Dr. Calvert had put Gore-Tex spacers in her nose. But Dr. Fairbanks did not find any reference to Gore-Tex in West's medical file, and he told her he did not believe Dr. Calvert would put Gore-Tex in her nose. Dr. Fairbanks declined to take West as a patient because of West's "past history of noncompliance" in failing to undergo additional surgeries Dr. Fairbanks had recommended.

On May 10, 2019 Barens wrote to Leighton and KTTV investigative reporter and anchor Melugin, stating, "For approximately the past three (3) weeks I have received dozens and dozens of calls from Mr. Leighton asking questions regarding my client Dr. Calvert in conjunction with your subject Natalie West . . . ." Barens wrote West's claims were "unsupportable," "objectively disprovable," and "based on fantasy and fiction." Barens asserted as to West's allegations of forcible sexual penetration, "The utter absurdity of this allegation should cause concern and hesitation to any reputable, legitimate news agency . . . ." Barens urged Leighton and Melugin not to quote "the rantings of an obviously disturbed individual."

On May 13, 2019 Barens again wrote to Leighton and Melugin, stating "West signed [c]onsents for each and every procedure/surgery that [Dr. Calvert] provided" and all insurance billings were "consistently and comprehensively authorized by Ms. West." Barens referred to West as "a woman whose credibility is totally suspect as evidenced by the fantasy allegations of sexual penetration by a foreign object as referenced in her complaint." Barens further denied any "resident or attending surgeons from USC ever performed any procedure on Ms. West."

3. The May 13, 2019 Report

On May 13, 2019 KTTV broadcast a news report on West's allegations of fraud and medical battery against Dr. Calvert. Melugin opened the segment, "[T]he Beverly Hills plastic surgeon we've been investigating is widely considered to be one of the top [plastic] surgeons in the entire country. . . . But some of his former patients alleged there's another side of this doctor that you need to know about." Melugin identified West as "[a] patient in pain taking legal action after accusations of unconsented, unnecessary, and damaging surgical procedures." Melugin reported West's "allegations" that Dr. Calvert performed unnecessary and harmful nasal surgeries on West and double billed West and her insurer; he falsely characterized the surgeries as medically necessary for nasal airway obstructions; and he allowed a USC medical fellow to perform a surgery on West without West's consent. The report included excerpts from a pre-recorded interview with West and her attorney Leslie Hakala, in which each made statements regarding West's allegations. At several points during the report, descriptions of West's allegations by Melugin, West, or Hakala were accompanied by background graphics showing related portions of West's second amended complaint against Dr. Calvert.

Melugin reported Dr. Calvert declined to be interviewed for the segment, but Melugin included Barens's statement denying the allegations: "'Every procedure performed by Dr. Calvert on every patient was consented to in writing prior to the procedure by the respective patient. Dr. Calvert has never allowed or permitted any resident or fellow to perform surgery on his patients which is verified by patient medical records. This case will be vigorously defended and ultimately rejected by the court.'"

The report also included excerpts from a pre-recorded interview with Houston. Melugin identified Houston as a former patient who was not a party to West's lawsuit. Houston stated Dr Calvert falsely claimed in a surgical report that the cosmetic nasal surgery he performed on Houston was necessary to correct a nasal airway obstruction caused by an accident in which Houston dropped a box on his face. ...