Sanchez v. Bezos

• Citation: 80 Cal.App.5th 750,295 Cal.Rptr.3d 903
• Decision Date: 30 June 2022
• Docket Number: B309364, B312143
• Parties: Michael SANCHEZ, Plaintiff and Appellant, v. Jeffrey Preston BEZOS et al., Defendants and Respondents.
• Court: California Court of Appeals

80 Cal.App.5th 750

295 Cal.Rptr.3d 903

Michael SANCHEZ, Plaintiff and Appellant,

v.Jeffrey Preston BEZOS et al., Defendants and Respondents.

B309364, B312143

Court of Appeal, Second District, Division 1, California.

Filed June 30, 2022

Warren Terzian, Thomas D. Warren and Erick Kuylman, Los Angeles, for Plaintiff and Appellant.

Paul, Weiss, Rifkind, Wharton & Garrison, Meredith R. Dearborn, William A. Isaacson and Julia Tarver Mason Wood for Defendants and Respondents.

BENDIX, J.

This appeal arises from a defamation action filed by plaintiff Michael Sanchez against defendants Jeffrey Preston Bezos and Gavin de Becker. Plaintiff alleged that defendants falsely told several reporters that plaintiff had provided explicit nude photographs of Bezos to the National Enquirer (the Enquirer) as part of a conspiracy to damage Bezos.

Defendants filed a special motion to strike the complaint under Code of Civil Procedure ¹ section 425.16, the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. To demonstrate the merits of his case, plaintiff offered his own declaration asserting that numerous reporters had informed him of defendants’ accusations against him. The trial court found the reporters’ statements recounted in plaintiff's declaration were inadmissible hearsay, and therefore could not be considered for anti-SLAPP purposes. Because plaintiff offered no other evidence that defendants made defamatory comments about him, the court granted the anti-SLAPP motion and entered judgment in favor of defendants.

Plaintiff raises two arguments on appeal. First, he argues his evidence of defendants’ purported defamatory statements was not hearsay because he did not offer the statements for the truth of the matter asserted, but merely to establish the statements were uttered. Second, plaintiff argues that under Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 243 Cal.Rptr.3d 880, 434 P.3d 1152 ( Sweetwater ), hearsay may be considered for anti-SLAPP purposes if there is a reasonable possibility the hearsay will be cured at trial. Plaintiff contends any hearsay in his declaration can be cured when the reporters testify under oath in deposition or at trial.

We reject these arguments. Had plaintiff himself witnessed defendants make defamatory comments, he could testify to those comments without running afoul of the hearsay rule. In that event, he would offer the evidence not for the truth of the matter asserted but to establish the comments were made. Here, however, plaintiff's declaration recounted not what he himself had witnessed, but what reporters told him they had witnessed. The reporters’ statements were offered for the truth of the matter asserted, namely that the reporters heard defendants make defamatory comments about plaintiff. The reporters’ statements therefore are hearsay.

Plaintiff misreads Sweetwater . That case reaffirmed that hearsay, absent an applicable exception, may not be considered for anti-SLAPP purposes. The only examples of "curable" hearsay in that decision were statements made under oath or penalty of perjury. Those statements by analogy fell within the hearsay exception for affidavits and declarations in anti-SLAPP proceedings. The reporters’ statements recounted in plaintiff's declaration, in contrast, were not made under oath or penalty of perjury, and the trial court properly declined to consider them.

Accordingly, we affirm the judgment and the subsequent order awarding attorney fees and costs to defendants.

PROCEDURAL BACKGROUND

On January 31, 2020, plaintiff filed a complaint against defendants asserting causes of action for defamation and intentional infliction of emotional distress. Plaintiff alleged that after the Enquirer published a story revealing an extramarital relationship between plaintiff's sister and Bezos, Bezos directed de Becker, his "security chief," to uncover who leaked the story to the Enquirer. Plaintiff, who served as his sister's manager, alleged he "became a target in Mr. de Becker's investigation." Plaintiff alleged defendants defamed him by falsely telling news outlets that plaintiff "was the source of graphic, nude photographs of Mr. Bezos," and that plaintiff "was involved in a conservative conspiracy with high-profile political operatives, including Roger Stone and Carter Page, and the Saudi government to take down Mr. Bezos."

Defendants filed an anti-SLAPP motion. They contended plaintiff's claims arose from protected First Amendment activity, specifically statements in a public forum about an issue of public interest, and news reporting. Defendants further contended plaintiff could not show a probability of prevailing on those claims because (a) plaintiff had not identified any instance in which defendants or a media outlet made any of the purportedly defamatory statements about him; and (b) media outlets had reported that plaintiff had in fact leaked information about the relationship between his sister and Bezos, and therefore the purported defamatory statements were substantially true.

In opposition, plaintiff admitted that, to protect his sister's reputation, he provided information to the Enquirer about his sister's and Bezos’ relationship "in exchange for [the Enquirer] delaying and softening the story." This included "a few text messages and non-explicit photographs shared with [plaintiff] by [his] sister." He contended defendants’ accusations against him nonetheless were false and defamatory, because they specifically accused plaintiff of providing explicit, nude photographs of Bezos, which plaintiff asserted he did not do, and further falsely accused him of involvement in a conservative conspiracy to harm Bezos.

To establish the merit of his claims, plaintiff submitted his own declaration detailing, inter alia, the purportedly defamatory statements by defendants. He stated that "through my business relationship with reporters from the Daily Beast ," "I learned that" de Becker "told them that I was involved in a conservative conspiracy to harm Mr. Bezos and that I was responsible for leaking explicit photos of Mr. Bezos’ genitalia." Plaintiff also averred that "Alexandra Berzon, a reporter for the Wall Street Journal , contacted me and told me that Mr. de Becker had told her I was the person who had ‘provided the sexually explicit pictures’ to the National Enquirer , and asked me to confirm the story." Plaintiff further asserted that "Reporters from The Sun , Page Six, The Daily Beast , and The Washington Post all informed me that de Becker had told them I was involved in a right-wing conspiracy with Carter Page and Roger Stone."²

Simultaneously with his opposition to the anti-SLAPP motion, plaintiff filed a motion to lift the discovery stay so he could depose and obtain documents from his sister. Plaintiff contended his sister "has knowledge that Defendants were keenly aware that their statements were baseless and unsupported, yet they continued to recklessly propagate falsehoods about [plaintiff]." This evidence, plaintiff claimed, would "augment the record" that defendants acted with actual malice.

Defendants filed an opposition to plaintiff's motion to lift the discovery stay and a reply brief in support of their anti-SLAPP motion. In both, defendants argued, inter alia, that plaintiff's evidence that defendants made the purportedly defamatory comments to reporters was inadmissible hearsay, and therefore plaintiff had not made a prima facie showing of publication, a necessary element of a defamation claim. Defendants argued that because plaintiff had failed to meet this threshold requirement for defamation, plaintiff's requested discovery concerning actual malice was "unwarranted."

Plaintiff filed a reply in support of his motion to lift the discovery stay, arguing, inter alia, that under Sweetwater , hearsay was admissible to defeat an anti-SLAPP motion "[a]s long as it is reasonably possible that a witness will ultimately testify to the matter at trial."

The trial court first heard plaintiff's motion to lift the discovery stay, with the hearing on the anti-SLAPP motion scheduled for a later day. The trial court denied plaintiff's motion, finding, as defendants had argued, that plaintiff's evidence that defendants had made defamatory statements to reporters was hearsay, and thus there was "no admissible evidence of publication by the Defendants." The trial court rejected plaintiff's interpretation of Sweetwater , and ruled that "hearsay within a declaration is inadmissible."

Prior to the hearing on the anti-SLAPP motion, the parties submitted supplemental briefs. Plaintiff in his brief argued that the defamatory statements described in his declaration were not hearsay because they were not offered for the truth of the matter asserted. Alternatively, he again argued under Sweetwater that any hearsay problems could be cured at trial by calling the reporters as witnesses. Defendants disputed these contentions in their supplemental brief.

Following a hearing, the trial court granted defendants’ anti-SLAPP motion. The court noted that plaintiff's opposition had not addressed whether his causes of action arose from protected conduct, and thus plaintiff had conceded the issue. The court further concluded on the merits that defendants had shown the causes of action arose from protected conduct.

The trial court again ruled that plaintiff had failed to provide "admissible evidence that Defendants published the subject statements." The court reasoned, "Plaintiff's statements [in his declaration] about what he was told by reporters [citation] constitute hearsay because they relate to out-of-court statements that are being used to prove the truth of the matter asserted—specifically, that Defendants published the subject statements." The court again rejected plaintiff's interpretation of Sweetwater .

Having concluded there was no admissible evidence of publication, the trial court struck the defamation claim and the "derivative...