Paterno v. Superior Court

• Decision Date: 13 June 2008
• Docket Number: No. G038555.,G038555.
• Citation: 163 Cal.App.4th 1342,78 Cal. Rptr. 3d 244
• Court: California Court of Appeals Court of Appeals
• Parties: SUSAN PATERNO, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; AMPERSAND PUBLISHING, Real Party in Interest.

163 Cal.App.4th 1342

78 Cal. Rptr. 3d 244

SUSAN PATERNO, Petitioner, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent AMPERSAND PUBLISHING, Real Party in Interest.

No. G038555.

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

June 13, 2008.

Holland & Knight, Charles D. Tobin, Judith F. Bonilla and Shelley G. Hurwitz for Petitioner.

No appearance for Respondent.

Dreier Stein & Kahan, Stanton L. Stein, Samuel R. Pryor, Lauren Sudar and Jesse M. Leff for Real Party in Interest.

OPINION

ARONSON, J.

Here we consider whether a plaintiff in a defamation action subject to the constitutional malice standard established the requisite "good cause" (Code Civ. Proc., § 425.16, subd. (g)) to conduct discovery, thereby delaying resolution of the defendant's pending anti-SLAPP motion.¹ We conclude that where, as here, the plaintiff fails to demonstrate the allegedly defamatory statements are provably false factual assertions—which the plaintiff must do to establish the necessary probability of prevailing on its defamation claim—no good cause exists to conduct discovery concerning actual malice. We therefore grant the writ petition, and direct the trial court to vacate its discovery order and enter a new order denying plaintiff's discovery motion.

I Factual and Procedural Background

Plaintiff and real party in interest Ampersand Publishing (Ampersand) is the corporate owner of the Santa Barbara News-Press. Wendy McCaw, its principal, publishes the newspaper. Defendant and petitioner Susan Paterno directs the journalism program at Chapman University in Orange, California, and is a senior writer for the American Journalism Review, a magazine published by the University of Maryland.

Paterno wrote an article, "Santa Barbara Smackdown," for the magazine's December 2006 issue. The article offered a "behind-the-scenes look" at the "turmoil" engulfing the News-Press, including the dismissal or resignation of more than half of its 50-member newsroom, leaving others to work in a "climate of fear and paranoia ripped from the pages of Kafka's `The Trial ...'...." The article described McCaw's efforts to "silence" criticism by filing or threatening to file libel lawsuits.

In preparing for the article, Paterno spoke with more than a dozen former employees, and reviewed court records and documents. Ampersand refused permission to contact current employees; its lawyers informed her that such efforts "are by no means protected activities" and were "actionable." Ampersand suggested instead that she submit written questions to its public relations and crisis management consultant, which would be "reviewed by the appropriate News-Press agents and employees, including Wendy McCaw, and ... answered when appropriate." Paterno declined the offer.

Ampersand filed a libel and trade disparagement lawsuit against Paterno for falsely implying that McCaw's personal agenda improperly influenced the newspaper's reporting. To the contrary, the complaint alleges, "Ampersand management (including ... McCaw) has sought to end bias at the paper ...." (Original italics.) The complaint alleged that Paterno's article contained 32 libelous statements.²

Paterno filed a timely special motion to strike under the anti-SLAPP statute. To prevail on the motion, Paterno had to make a threshold showing that her conduct occurred in furtherance of the constitutional right of free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e)(4).) The burden then would shift to Ampersand to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).)

Ampersand conceded Paterno's statements arose from constitutionally protected activity, thereby meeting the first prong of the anti-SLAPP statute. But Ampersand claimed its evidence demonstrated a probability it would prevail on the merits, thwarting the motion to strike.

Ampersand filed a motion for expedited discovery pursuant to section 425.16, subdivision (g).³ Ampersand sought to depose Paterno and her editorial assistant Hallie Falquet to obtain any documents "reflect[ing], relat[ing] or refer[ring]" to their preparation of the article. It also sought documents from the American Journalism Review relating to the article. Ampersand claimed this "limited" discovery was necessary to show Paterno's subjective state of mind regarding the truth or falsity of her statements. According to the motion, "There is a great deal of information with respect to this incident that Paterno did not include in her libelous account, and Ampersand is entitled to discovery with respect to what Paterno knew about the incident, and what information she deliberately chose not to include in her story so as to paint a false picture."

Ampersand's attorney, Stanton Stein, attached a one-page declaration to the motion authenticating Ampersand's proposed document requests and deposition notices. His declaration discussed neither the relevancy nor the need for the discovery, and did not describe whether Ampersand made any efforts to obtain the requested information through other means.

At the hearing on the motions, the trial court concluded Ampersand had not met its burden to show a probability of success on 29 of the 32 libelous statements because "[m]ost appear as a matter of law to be opinion, or [Ampersand] fails to establish prima facie falsity." The trial court, however, found that Ampersand met its burden of proof on 3 of the 32 statements, and subsequently issued a formal order granting Ampersand leave to conduct discovery on whether Paterno made the following three statements with actual malice:

(1) that orders from "on high" forced former News-Press editor Jerry Roberts to "kill" a story about a drunk driving sentence imposed on the editorial page editor, Travis Armstrong;

(2) that the News-Press pursued a workplace restraining order against former employee Michael Todd, costing him approximately $7,000 in attorney fees, before dropping the case in October 2006; and,

(3) that Ampersand "slashed" benefits and overtime pay for newsroom employees over a two-year period.

The court continued the hearing on Paterno's anti-SLAPP motion to allow Ampersand to depose Paterno and Falquet, and obtain the subpoenaed documents.

Paterno filed a petition for writ of mandate with this court, contending all the statements were true, and that the third statement amounted to nonactionable opinion. We issued a temporary stay and an order to show cause. Ampersand filed a verified return, and Paterno filed a reply.

II DISCUSSION

A. The Anti-SLAPP Statute's "Good Cause" Requirement for Discovery

Ampersand contends relevance is the sole criterion to determine whether a defamation plaintiff may delay a hearing on an anti-SLAPP motion to conduct discovery on actual malice. According to Ampersand, "The trial court's ruling is consistent with the anti-SLAPP statute and the case law, which establishes that courts should exercise their discretion liberally when considering a request for discovery regarding the defendant's state of mind in defamation cases." Having demonstrated to the trial court's satisfaction the relevance of the requested discovery on the issue of malice, Ampersand argues it satisfied the anti-SLAPP statute's "good cause" requirement for discovery. (§ 425.16, subd. (g).)

(1) Relevancy, however, is not the only hurdle a defamation plaintiff must overcome to establish good cause for discovery, given the purpose of anti-SLAPP legislation. To "encourage continued participation in matters of public significance" (§ 425.16, subd. (a)), the anti-SLAPP statute "protect[s] defendants from having to expend resources defending against frivolous SLAPP suits unless and until a plaintiff establishes the viability of its claim by a prima facie showing" (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1124 (Britts); see also Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247 (Sipple) ["We conclude that to allow appellant such extensive discovery would subvert the intent of the anti-SLAPP legislation."]). "Indeed, `[t]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.'" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193 [25 Cal.Rptr.3d 298, 106 P.3d 958], original italics.)

(2) The anti-SLAPP statute reinforces the self-executing protections of the First Amendment. In Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154 , the court directed a trial court to quash a subpoena to discover the identity of an anonymous Internet poster. To protect First Amendment expression, Krinsky required the discovery proponent to make a prima facie showing the message board statement was libelous. (See Civ. Code, § 44 ["libel" defined as defamation effected in writing].) "Requiring at least that much ensures that the plaintiff is not merely seeking to harass or embarrass the speaker or stifle legitimate criticism." (Krinsky, at p. 1171.)

The constitutional malice standard under New York Times Co. v. Sullivan (1964) 376 U.S. 254, 280 [11 L.Ed.2d 686, 84 S.Ct. 710], protects freedom of expression by requiring public figure plaintiffs who bring defamation actions to plead and prove falsehood, and to further establish actual malice by clear and convincing evidence. (See Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71 (Christian Research).) "To state a defamation claim that survives a First Amendment challenge, thus, a plaintiff must present evidence of a statement of fact that is `provably false.'" (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048 (Nygård), see Civ. Code, § 45, italics added [defamation requires a "false and unprivileged publication ... [that] exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation"].)

Accordin...