Sipple v. Foundation For Nat. Progress

• Decision Date: 07 April 1999
• Docket Number: No. B120358,B120358
• Court: California Court of Appeals Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 2602, 1999 Daily Journal D.A.R. 3337 Donald SIPPLE, Plaintiff and Appellant, v. FOUNDATION FOR NATIONAL PROGRESS et al., Defendants and Respondents.

Page 677

83 Cal.Rptr.2d 677

71 Cal.App.4th 226, 99 Cal. Daily Op. Serv. 2602,

1999 Daily Journal D.A.R. 3337

Donald SIPPLE, Plaintiff and Appellant, v. FOUNDATION FOR NATIONAL PROGRESS et al., Defendants and Respondents.

No. B120358.

Court of Appeal, Second District, Division 2, California.

April 7, 1999.

Review Denied July 28, 1999.

Bostwick & Hoffman and Gary L. Bostwick, Santa Monica, Greines, Martin, Stein & Richland, Kent L. Richland and Michael D. Fitts, Beverly Hills, for Plaintiff and Appellant.

Skjerven, Morrill, MacPherson, Franklin & Friel, San Francisco, Edward P. Davis, Jr. and James M. Chadwick for Defendants and Respondents.

NOTT, J.

Appellant Donald Sipple appeals from a judgment entered after the trial court dismissed his complaint in favor of respondents Foundation for National Progress, d.b.a. "Mother Jones," and Richard Blow (hereinafter sometimes referred to individually, or collectively as respondents). In this appeal we determine whether an article published by Mother Jones was privileged under Civil Code section 47, subdivision (d), therefore subjecting appellant's defamation action against respondents to the protection of the anti-SLAPP statute. We decide in the affirmative.

CONTENTIONS

Appellant contends that the trial court (1) erred in ruling an article published by Mother Jones was privileged; (2) erred in finding that the anti-SLAPP statute applied; and (3) abused its discretion by refusing to stay the motion to dismiss in order to permit discovery or, alternatively, in finding that appellant had not demonstrated a probability of prevailing on the merits.

FACTS AND PROCEDURAL BACKGROUND

Appellant, a nationally known political consultant, is the owner of Sipple: Strategic Communications, Inc., which produces advertising for political candidates and other businesses. His clients include former Governor Pete Wilson of California, Governor Jim Edgar of Illinois, Governor George W. Bush of Texas, Senator Bob Dole, Senator Orrin Hatch and Senator John Chaffee. Appellant has been prominently featured in newspaper articles and magazines as an image maker and media strategist. The themes he developed for his clients include the prevention and punishment of domestic violence and other crimes against women.

In its September/October 1997 issue, Mother Jones published an article written by Blow that is the subject of this action. The article focused on a 1992 custody dispute between appellant and his first wife, Regina Sipple, which occurred in Missouri. Regina and appellant's second wife, Deborah Steelman, an attorney active in Washington, D.C. political circles, testified at the custody dispute. Both women testified that appellant had physically and verbally abused them. Appellant's third and current wife, Joyce Sipple, testified that appellant had never abused her in 15 years of marriage. Missouri Supreme Court Chief Justice Chip Robertson also testified on appellant's behalf.

The defamation action

On August 22, 1997, appellant filed a verified complaint for (1) libel, (2) intentional interference with contract, and (3) intentional interference with prospective economic advantage against respondents.

Respondents filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. As discussed, infra, that statute is designed to allow early termination of lawsuits filed to chill free speech made in connection with a public issue.

On February 6, 1998, the trial court entered an order granting the motion to strike on two grounds: (1) most of the allegedly defamatory statements were taken from judicial proceedings; the remaining statements The trial court denied appellant's request to continue the motion to strike the complaint pending further discovery and his motion for discovery because he failed to make a showing sufficient to establish good cause for discovery. That is, appellant failed to identify the additional facts he expected to discover or the facts necessary to establish the absence of privilege or the existence of actual malice. Moreover, the article was privileged because it was based largely on an accurate account of court records and because the article reported that appellant and his supporters denied the allegations of abuse.

filled in details of the abusive behavior but did not contain any information to alter the "gist or sting" of the evidence presented in the judicial proceedings; and the article was privileged pursuant to Civil Code section 47, subdivision (d); and (2) appellant, having been found to be a public figure, failed to establish a prima facie case that the article was published with knowledge of its falsity or with reckless disregard of its truth or falsity.

Declaration of Richard Blow in support of motion to strike pursuant to Code of Civil Procedure section 425.16

Blow, senior editor of George magazine, researched the article by reading court and deposition transcripts from the custody case. He also examined a photograph admitted into evidence in the custody case which Regina testified was taken shortly after appellant had beaten her.

Blow conducted independent interviews with Regina and Deborah in which each told him that appellant had physically and mentally abused them, providing consistent details of abuse. Both described appellant as having a charming public persona, but as extremely jealous and possessive, and physically and verbally abusive to them.

Blow interviewed friends and relatives of the women to determine if Regina had discussed the abuse allegations with anyone prior to the custody dispute. Several confirmed that she had and that they believed her. Blow could see no credible reason why Deborah would perjure herself during the custody trial.

Patricia Spencer, Regina's mother, confirmed that Regina had confided to her that she had been abused by appellant. Patricia thought appellant would have killed Regina if Regina had stayed with him.

Meredith Sharp, Regina's sister, confirmed that Regina had told her about the abuse shortly after one violent episode, and that immediately after that discussion, Regina left appellant. Meredith confirmed another incident of abuse about which she testified at the custody trial.

Robert Smith, Regina's divorce lawyer, confirmed that he had observed bruises on Regina which she said resulted from an assault by appellant. He knew of the abuse allegations at the time of the divorce and believed Regina was being truthful.

Colly Durley, Regina's attorney during the custody hearing, confirmed that Regina did not know of Deborah's abuse allegations until Durley contacted Deborah as a potential witness in the custody lawsuit.

John Rother, a friend of Deborah, confirmed that during work one day Deborah suddenly said she had to leave appellant, began crying and described the physical abuse she had suffered.

Gregg Ward, a former co-worker of Deborah, and now her husband, confirmed that she had confided in him about the abusive relationship after a violent assault and that she left appellant shortly thereafter.

David Steelman, Deborah's brother who handled her divorce, confirmed that Deborah had told him about the abuse prior to the custody lawsuit.

Three independent experts on spousal abuse stated that the pattern of abuse by appellant described by the ex-wives was consistent with that of an abuser.

Blow interviewed appellant about the allegations of abuse. Appellant denied abusing the women, and did not provide information in contradiction of his ex-wives' versions, other than referring to the results of the custody hearing. When Blow asked appellant what motive Deborah would have to commit perjury, appellant told him to ask Deborah. Declaration of Kerry Lauerman in support of motion to strike pursuant to Code of Civil Procedure section 425.16

Lauerman declared that he is the investigative editor for Mother Jones. He had previously fact-checked two other articles written by Blow for Mother Jones, an expose and a profile of two top Democratic figures. Prior to the publication of the article, Lauerman spoke with Regina and Deborah. Both women had reviewed the article with Blow and were satisfied that Blow had been fair and the information was accurate. Both women confirmed their allegations of abuse by appellant. Lauerman testified that Blow's article had been independently fact-checked by two people.

Deposition of Regina taken during the custody hearing

Regina testified that appellant beat her numerous times during the last two years of her four-year marriage. For instance, once when she came home late from work, as soon as the friend she drove home with left, appellant grabbed her by the back of the neck and ground her face into the carpet. Another time, appellant hit her for no reason when she woke up in the morning; and on another occasion, he knocked her down, then kicked her. Once, he grabbed her by the hair, yanked her head back and slapped her. On a vacation to Lake Tahoe with their young son Evan, appellant became angry because Evan's diaper was dirty. He then beat Regina. Throughout their marriage, appellant was suspicious and jealous without reason. When she danced with Missouri Governor Christopher "Kit" Bond at one of the governor's mansion parties, appellant became jealous and hit her afterward. Regina was so fearful of appellant's violence and temper that she finally fled the house without his knowledge, leaving a note behind.

Regina's testimony at the custody hearing

Regina testified that appellant has never been present for Evan's birthdays or parent-teacher conferences, nor has he attended any of his graduation ceremonies. She testified that during the time she was married to him, appellant physically abused her by pushing her, kicking her and hitting her.

Deborah's testimony at the custody hearing

Deborah testified that she argued with appellant several times about his making Regina's situation so difficult by failing to send Regina her child support...