Christian Research Institute v. Alnor, No. G036587.

• Court: California Court of Appeals
• Writing for the Court: Aronson
• Citation: 148 Cal.App.4th 71,55 Cal.Rptr.3d 600
• Parties: CHRISTIAN RESEARCH INSTITUTE et al., Plaintiffs and Respondents, v. William ALNOR, Defendant and Appellant.
• Docket Number: No. G036587.
• Decision Date: 28 February 2007

55 Cal.Rptr.3d 600 148 Cal.App.4th 71 CHRISTIAN RESEARCH INSTITUTE et al., Plaintiffs and Respondents,
v.
William ALNOR, Defendant and Appellant. No. G036587. Court of Appeal, Fourth District, Division 3. February 28, 2007.

[55 Cal.Rptr.3d 605]

Ross, Dixon & Bell, Kevin F. Kieffer, Becki F. Kieffer, Jenece D. Solomon, Irvine; ACLU Foundation of Southern California and Peter J. Eliasberg, Los Angeles, for Defendant and Appellant.

Tom S. Chun, Irvine, for Plaintiffs and Respondents.

OPINION

ARONSON, J.

Defendant William Alnor appeals the trial court's denial of his special motion to strike brought under the anti-SLAPP statute.¹ (Code Civ. Proc, § 425.16.)² Alnor contends plaintiffs Hank Hanegraaff and Christian Research Institute (CRI) failed to meet their burden of demonstrating a likelihood of success on their defamation complaint because they failed to show by clear and convincing evidence Alnor's statement about plaintiffs was false or that Alnor acted with malice.

We conclude the law does not require a defamation plaintiff to prove falsity by clear and convincing evidence and that plaintiffs have shown by a preponderance of the evidence that Alnor's statements were false. Plaintiffs, however, have failed to demonstrate a probability of prevailing by clear and convincing evidence that Alnor made the challenged statement with "actual malice." We therefore reverse the trial court's order denying Alnor's special motion to strike, and direct the trial court to enter a new order granting the motion and striking the complaint.

I FACTUAL AND PROCEDURAL BACKGROUND

A. The Defamation Lawsuit

Hanegraaff is president of CRI, a nonprofit organization that disseminates religious information. Defendant William Alnor is a former CRI employee who maintains the Christian Sentinel, a web site reporting on the fundraising and spending practices of various Christian organizations.

Hanegraaff posted an "urgent" letter on CRI's web site stating that the post office branch in Rancho Santa Margarita had misdirected some of CRI's mail to the

55 Cal.Rptr.3d 606

wrong address, and that the recipient had discarded some of it. The letter explained that although the local post office branch "has accepted full responsibility for this error and has fixed the problem," the mishap caused CRI to lose a substantial amount of money, "perhaps in the hundreds of thousands of dollars." The letter requested readers to "send a sacrificial gift" to GRI to cover the loss. Suspicious of CRI's claims, Alnor called several post office branches to verify the incident. Based on his findings, Alnor published a Christian Sentinel edition disputing CRI's claim that a substantial amount of CRI's mail had been diverted, and questioning the fundraising tactics of Hanegraaff and CRI. Under the heading of "BREAKING NEWS," the edition bore the headline: "Federal Criminal Mail Fraud Investigation Launched Against CRI and Leader Hank Hanegraaff." Under a picture of Hanegraaff, the story began: "Christian Research Institute (CRI) President Hank Hanegraaff has become the focus of a federal criminal mail fraud investigation sparked last week by an unusual `urgent memo' fundraising appeal letter he released on Friday on CRI's website."

Plaintiffs filed a defamation complaint against Alnor based on his statement that CRI and Hanegraaff were under a federal criminal investigation. Alnor responded with a special motion to strike under the anti-SLAPP statute. In support of the motion, Alnor submitted a declaration outlining his investigation into the CRI memo.

B. Alnor's Evidence

According to lis declaration, Alnor called the Rancho Santa Margarita office of the United States Postal Service (USPS) and asked to speak to the postmaster. A person who identified himself as "`Gus,' the `acting postmaster'" told Alnor he was unaware of the mail diversion discussed in the CRI letter. After providing Gus a copy of the CRI memo, Alnor again called the branch and learned from an unidentified person that the CRI letter had been posted at the facility for the employees to view. This person told Alnor that no one at the facility knew anything about the allegations made in the CRI memo, and that the issue had become a matter of internal investigation. The person also advised Alnor to contact the postal inspector's office in Pasadena, California, so they could start an investigation.

Alnor then called the USPS Pasadena postal inspector's office and spoke to "Debra," who advised Alnor that she was aware of the claims in CRI's memo, and her office was "`investigating' it on the basis of `mail fraud.'" Debra asked Alnor to fax her a copy of the CRI memo, and referred him to a web site where he could file a mail fraud report. Debra explained that all complaints regarding suspected mail fraud were filed with the USPS's national postal inspector's office in Chicago, Illinois. Alnor then printed off, completed, and sent a mail fraud report to both the Rancho Santa Margarita branch and the Chicago postal inspector's office. Alnor subsequently called the Chicago postal inspector's office to ask about the status of his mail fraud report, and was referred to someone who did not return his call. Shortly after Alnor published the allegedly defamatory article, he received a letter from the Chicago postal inspector's office Morming him "`[t]he information you provided will be reviewed to determine if this matter constitutes any violation of the Mail Fraud or False Representation Statutes.'"

Alnor spoke on two more occasions with Gus, who said he had received Alnor's mail fraud report and that the postal inspector's office was investigating the situation. Gus said CRI had never complained about diverted

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mail, and that "`[n]o apologies were ever made to CRI.'" Gus opined the mail diversion outlined in the CRI letter appeared fabricated. Gus told Alnor, "`It never happened. There were no diversions of mail.'" On another call to the Rancho Santa Margarita Post Office, Alnor spoke with an unidentified woman who told him the employees of the office were annoyed over the allegations in the CRI letter and claimed "`[CRI] never came in to talk to us at all.'" She also confirmed that CRI had not filed a complaint regarding the allegedly diverted mail. Alnor also contacted the San Juan Capistrano USPS branch, whose postmaster told Alnor he had never heard of the matters claimed by Hanegraaff in the CRI memo. Alnor attempted to speak with CRI about the matter on several occasions, but the organization would not provide any information.

In addition to his own declaration, Alnor submitted the declaration of Jay Howard, another person who monitors religious organizations. Howard stated that shortly after Alnor published the allegedly defamatory article, he confirmed with someone named "Mildred" that the post office had initiated a mail fraud investigation based on the CRI letter. Alnor also introduced evidence, including a Los Angeles Times article, to demonstrate plaintiffs' public figure status.

C. Plaintiffs' Evidence

In opposing the special motion to strike, plaintiffs submitted Hanegraaffs declaration. Hanegraaff stated that in the last quarter of 2004, he became aware there had been a noticeable drop in mail volume and the amount of donations received compared with the same period in prior years. In December 2004, CRI received a call from a company named On-Target Marketing (On-Target), a direct mail marketing company which deals with large volumes of mail daily. The On-Target employee claimed the company had retrieved from its dumpster mail belonging to CRI. Hanegraaff dispatched Paul Young, CRI's chief operating officer, who returned with a full tray of CRI mail from On-Target. Young then met with a USPS official to discuss the situation. CRI decided not to file a formal complaint with the USPS because it did not wish to seek compensation, but only to correct the problem. Believing the drop in donations occurred because the post office diverted their mail, Hanegraaff prepared and published the CRI letter.

Hanegraaff's declaration states that Alnor had made numerous personal attacks against Hanegraaff, including claims of plagiarism and financial improprieties, since CRI terminated Alnor's employment in 1992. Hanegraaff stated he was aware of only one postal service investigation relating to the CRI memo, which was commenced over a month after Alnor's article. The investigation did not concern any wrongdoing on the part of CRI or Hanegraaff, but focused only on the post office's alleged mishandling of CRI's mail. Plaintiffs included a copy of the post office's investigative report, which confirmed plaintiffs were not targeted.

Plaintiffs also introduced copies of letters received from the Office of Inspector General of the USPS, Federal Trade Commission, and the Federal Bureau of Investigation, in response to CRI's Freedom of Information Act document request; each of the letters stated the agency had no investigative records concerning CRI or Hank Hanegraaff during the preceding two-year period.

II STANDARD OF REVIEW

An order denying an anti-SLAPP special motion to strike is appealable under

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sections 425.16, subdivision (i), and 904.1. We review the trial court's order de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, 113 Cal.Rptr.2d 625.)

III DISCUSSION

A. Applicable Anti-SLAPP and Libel Principles

The anti-SLAPP' statute provides: "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).) An act in furtherance of the right of free speech...