Bruce Fein v. Peter Kesterson , 476 F. App'x 673 ( 2012 )


Menu:
  •                                                                            FILED
    NOT FOR PUBLICATION                             FEB 27 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    BRUCE E. FEIN,                                   No. 10-56502
    Plaintiff - Appellant,             D.C. No. 2:10-cv-02048-ABC-SS
    v.
    MEMORANDUM *
    PETER SCOTT KESTERSON; et al.,
    Defendants - Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Audrey B. Collins, Chief District Judge, Presiding
    Argued and Submitted February 15, 2012
    Pasadena, California
    Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
    District Judge.**
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Edward R. Korman, Senior United States District
    Judge for the Eastern District of New York, sitting by designation.
    Bruce Fein appeals the district court’s grant of Peter Kesterson’s motion to
    strike Fein’s defamation suit under California’s anti-strategic lawsuits against
    public participation (anti-SLAPP) law. See 
    Cal. Civ. Proc. Code § 425.16
    (b)(1).
    We review de novo the district court’s grant of an anti-SLAPP motion. Price v.
    Stossel, 
    620 F.3d 992
    , 999 (9th Cir. 2010). We affirm.
    The issue here is narrow. To prevail, Fein must show a probability he can
    prove by clear and convincing evidence that Kesterson showed reckless disregard
    for the truth. Annette F. v. Sharon S., 
    119 Cal. App. 4th 1146
    , 1167 (Cal. Ct. App.
    2004). Fein has not carried this burden. “Reckless disregard” requires a “high
    degree of awareness . . . of probable falsity.” 
    Id.
     (quoting Garrison v. Louisiana,
    
    379 U.S. 64
    , 74 (1964)). Kesterson did not have the necessary suspicion of likely
    falsity. He relied on several credible newspapers, and his conclusions were a
    rational interpretation of the articles he read. See Conroy v. Spitzer, 
    70 Cal. App. 4th 1446
    , 1453 (Cal. Ct. App. 1999); Time, Inc. v. Pape, 
    401 U.S. 279
    , 290 (1971).
    The other evidence in the record does not support a contrary inference strong
    enough to deny an anti-SLAPP motion. There were no “obvious reasons” for
    Kesterson to doubt certain of his sources, and even if there were, he confirmed his
    conclusions by consulting more reliable sources. See Dodds v. Am. Broad Co., 
    145 F.3d 1053
    , 1061-63 (9th Cir. 1998). Kesterson’s concessions that he was not 100%
    2
    certain about his conclusions did not equal “a high degree of awareness
    of . . . probable falsity.” Annette F., 119 Cal. App. 4th at 1167 (quoting Garrison,
    
    379 U.S. at 74
    ). Nor did Kesterson’s supposed motive to defame Fein. See Live
    Oak Publ’g Co. v. Cohagan, 
    234 Cal. App. 3d 1277
    , 1292 (Cal. Ct. App. 1991).
    AFFIRMED. Costs to Kesterson.
    3
    

Document Info

Docket Number: 10-56502

Citation Numbers: 476 F. App'x 673

Judges: Farris, Fletcher, Korman

Filed Date: 2/27/2012

Precedential Status: Non-Precedential

Modified Date: 10/19/2024