Calvert v. Fox Television Stations, LLC CA2/7 ( 2022 )


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  • Filed 5/25/22 Calvert v. Fox Television Stations, LLC CA2/7
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
    California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
    not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
    not been certified for publication or ordered published for purposes of rule 8.1115.
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    JAY W. CALVERT et al.,                                           B310772
    Plaintiffs and Respondents,                             (Los Angeles County
    Super. Ct. No. 20STCV21742)
    v.
    FOX TELEVISION STATIONS,
    LLC et al.,
    Defendants and Appellants.
    APPEAL from an order of the Superior Court of Los
    Angeles County, Stephanie M. Bowick, Judge. Affirmed in part,
    reversed in part, and remanded with directions.
    Davis Wright Tremaine, Kelli L. Sager, Dan Laidman and
    Sarah Burns for Defendants and Appellants Fox Television
    Stations, LLC, William Melugin, Daniel Leighton and Kris
    Knutsen.
    Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
    Defendant and Appellant Michael Houston.
    Johnson & Johnson, Neville L. Johnson, Douglas L.
    Johnson, Aleeza L. Marashlian; and Rodney A. Smolla for
    Plaintiffs and Respondents.
    _______________________
    Fox Television Stations, LLC (Fox), William Melugin,
    Daniel Leighton, and Kris Knutsen (collectively, the Fox
    defendants) and Michael Houston appeal from orders denying
    their special motions to strike (Code Civ. Proc., § 425.16; anti-
    SLAPP statute)1 the complaint filed by Dr. Jay W. Calvert, a
    nationally recognized plastic surgeon, and Jay Calvert, M.D.,
    Professional Corporation (the professional corporation)
    (collectively, the Calvert plaintiffs). This case arises from the Fox
    defendants broadcasting and publishing news reports about a
    civil lawsuit filed against Dr. Calvert by his former patient
    Natalie West alleging insurance fraud and medical battery. The
    reports included statements by Houston that Dr. Calvert had
    similarly committed acts of insurance fraud in treating him. In
    response, the Calvert plaintiffs sued the Fox defendants and
    Houston for defamation. The trial court found that although the
    defamation claims arose from protected activity, the Calvert
    plaintiffs had shown a probability of prevailing on their claims.
    On appeal, the Fox defendants and Houston contend Fox’s
    reporting, including its interview with Houston, is absolutely
    1     “SLAPP is an acronym for ‘strategic lawsuits against public
    participation.’” (City of Montebello v. Vasquez (2016) 
    1 Cal.5th 409
    , 413, fn 2.)
    2
    privileged under Civil Code section 47, subdivision (d),2 as a fair
    and true report of a judicial proceeding. Further, the Calvert
    plaintiffs failed to plead and prove actual malice. The Fox
    defendants and Houston also argue several of the statements at
    issue do not constitute actionable defamation.
    We agree the Calvert plaintiffs failed to carry their burden
    to show probability of success on the merits of their defamation
    claims against the Fox defendants, and we reverse the trial
    court’s order denying the Fox defendants’ special motion to
    strike. However, as to Houston, we conclude Dr. Calvert (but not
    his professional corporation) carried his burden to show
    probability of success on his claims against Houston. We
    therefore affirm the trial court’s order denying Houston’s special
    motion to strike as to Dr. Calvert but reverse as to the
    professional corporation.
    FACTUAL AND PROCEDURAL BACKGROUND
    A.    The Fox Defendants’ Reporting on Dr. Calvert3
    1.    West’s lawsuit against Dr. Calvert
    On May 31, 2018 West filed a lawsuit against Dr. Calvert,
    the professional corporation, the University of Southern
    California (USC), and others, alleging causes of action for fraud,
    2     All further undesignated statutory references are to the
    Civil Code.
    3      The factual background is taken from the undisputed facts
    alleged in the complaint and the declarations and documents
    submitted in support of and in opposition to the special motions
    to strike.
    3
    medical battery, breach of contract, and forcible sexual
    penetration of an unconscious person with a foreign object.4
    (West v. Calvert et al. (Super. Ct. Los Angeles County, 2018,
    No. BC708415).) West alleged in her second amended complaint
    that in 2013 Dr. Calvert performed a cosmetic nasal surgery to
    reconstruct West’s nose after a failed reconstructive surgery by
    another doctor. West paid for the surgery in full, but Dr. Calvert
    fraudulently billed West’s medical insurer for the procedure by
    falsely characterizing the surgery as a medically necessary
    correction of a nasal airway obstruction.
    West alleged that after the surgery, Dr. Calvert told her the
    surgery had been “a complete success” but he needed to do two
    “‘tweaks’” in a second surgery. From 2013 through 2017,
    Dr. Calvert persuaded West to undergo 12 additional
    unnecessary and harmful nasal surgeries, in order to bill West’s
    insurance carrier for additional procedures. West alleged these
    surgeries included “multiple unconsented procedures.” Further,
    Dr. Calvert fraudulently double billed for each surgery, requiring
    West to pay out of pocket while also billing West’s insurance
    carrier for the same work. West alleged Dr. Calvert “essentially
    treat[ed]” West’s health insurance policies as “his own personal
    ATM machine.”
    West alleged she consented to have Dr. Calvert perform a
    procedure on May 31, 2017, but she later learned a USC fellow
    had performed the surgery. West also alleged that following a
    nasal surgery performed by Dr. Calvert on September 16, 2014,
    she suffered severe uterine cramping and discharge. West
    4     Only the Fox defendants’ and Houston’s motions to strike
    the Calvert plaintiffs’ complaint are at issue in this appeal.
    4
    alleged she was sexually assaulted while under anesthesia
    during the procedure by an unknown USC student, resident, or
    fellow who was “attempt[ing] to practice some unknown medical
    procedure involving [West’s] uterus without her prior knowledge
    or consent.” (Italics omitted.) West alleged Dr. Calvert failed to
    prevent the sexual assault.
    2.    Letters from Dr. Calvert’s counsel to Leighton and
    Melugin
    On April 25, 2019 Dr. Calvert’s attorney, Arthur H. Barens,
    in response to an inquiry regarding Fox-owned television station
    KTTV’s intention to broadcast a report on West’s allegations
    against Dr. Calvert, wrote to KTTV senior producer Leighton,
    requesting Leighton review West’s medical files before airing the
    report. Barens denied Dr. Calvert “acted inappropriately in
    either his medical treatment or billing practices.” Barens
    attached a September 25, 2017 letter from Dr. Grant R.
    Fairbanks to Dr. Calvert regarding West. Dr. Fairbanks wrote
    he had consulted with West in September 2017 regarding her
    chronic nasal infection. Dr. Fairbanks had previously treated
    West in 2009 to remove pieces of a nasal implant. West told
    Dr. Fairbanks that Dr. Calvert had put Gore-Tex spacers in her
    nose. But Dr. Fairbanks did not find any reference to Gore-Tex
    in West’s medical file, and he told her he did not believe Dr.
    Calvert would put Gore-Tex in her nose. Dr. Fairbanks declined
    to take West as a patient because of West’s “past history of
    noncompliance” in failing to undergo additional surgeries
    Dr. Fairbanks had recommended.
    On May 10, 2019 Barens wrote to Leighton and KTTV
    investigative reporter and anchor Melugin, stating, “For
    5
    approximately the past three (3) weeks I have received dozens
    and dozens of calls from Mr. Leighton asking questions regarding
    my client Dr. Calvert in conjunction with your subject Natalie
    West . . . .” Barens wrote West’s claims were “unsupportable,”
    “objectively disprovable,” and “based on fantasy and fiction.”
    Barens asserted as to West’s allegations of forcible sexual
    penetration, “The utter absurdity of this allegation should cause
    concern and hesitation to any reputable, legitimate news agency
    . . . .” Barens urged Leighton and Melugin not to quote “the
    rantings of an obviously disturbed individual.”
    On May 13, 2019 Barens again wrote to Leighton and
    Melugin, stating “West signed [c]onsents for each and every
    procedure/surgery that [Dr. Calvert] provided” and all insurance
    billings were “consistently and comprehensively authorized by
    Ms. West.” Barens referred to West as “a woman whose
    credibility is totally suspect as evidenced by the fantasy
    allegations of sexual penetration by a foreign object as referenced
    in her complaint.” Barens further denied any “resident or
    attending surgeons from USC ever performed any procedure on
    Ms. West.”
    3.     The May 13, 2019 Report
    On May 13, 2019 KTTV broadcast a news report on West’s
    allegations of fraud and medical battery against Dr. Calvert.
    Melugin opened the segment, “[T]he Beverly Hills plastic surgeon
    we’ve been investigating is widely considered to be one of the top
    [plastic] surgeons in the entire country. . . . But some of his
    former patients alleged there’s another side of this doctor that
    you need to know about.” Melugin identified West as “[a] patient
    in pain taking legal action after accusations of unconsented,
    6
    unnecessary, and damaging surgical procedures.” Melugin
    reported West’s “allegations” that Dr. Calvert performed
    unnecessary and harmful nasal surgeries on West and double
    billed West and her insurer; he falsely characterized the
    surgeries as medically necessary for nasal airway obstructions;
    and he allowed a USC medical fellow to perform a surgery on
    West without West’s consent. The report included excerpts from
    a pre-recorded interview with West and her attorney Leslie
    Hakala, in which each made statements regarding West’s
    allegations. At several points during the report, descriptions of
    West’s allegations by Melugin, West, or Hakala were
    accompanied by background graphics showing related portions of
    West’s second amended complaint against Dr. Calvert.
    Melugin reported Dr. Calvert declined to be interviewed for
    the segment, but Melugin included Barens’s statement denying
    the allegations: “‘Every procedure performed by Dr. Calvert on
    every patient was consented to in writing prior to the procedure
    by the respective patient. Dr. Calvert has never allowed or
    permitted any resident or fellow to perform surgery on his
    patients which is verified by patient medical records. This case
    will be vigorously defended and ultimately rejected by the court.’”
    The report also included excerpts from a pre-recorded
    interview with Houston. Melugin identified Houston as a former
    patient who was not a party to West’s lawsuit. Houston stated
    Dr. Calvert falsely claimed in a surgical report that the cosmetic
    nasal surgery he performed on Houston was necessary to correct
    a nasal airway obstruction caused by an accident in which
    Houston dropped a box on his face. Houston denied the injury,
    explaining he simply “didn’t like the way [his] nose looked.”
    Houston alleged Dr. Calvert had similarly mischaracterized other
    7
    cosmetic surgeries so he could bill Houston’s insurer for the
    procedures. Further, Houston was afraid of Dr. Calvert because
    when Houston confronted him about his billing practices,
    Dr. Calvert threatened Houston, stating, “[I]f I go down for
    insurance fraud I’m taking you with me.” Melugin added at the
    end of the report, “Calvert’s attorney declined to respond to
    Houston’s allegations when asked for a comment by [KTTV].”
    Melugin also stated USC sponsored a plastic surgery
    fellowship program run by Dr. Calvert, in which USC residents
    and fellows received training from Dr. Calvert. Melugin reported
    Dr. Calvert identified himself on his social media profile as a
    clinical associate professor at USC’s Keck School of Medicine, and
    Dr. Calvert’s name appeared as a faculty surgeon on USC’s
    website. Melugin added that in a statement to KTTV, USC
    “appeared to distance [itself] from Dr. Calvert” by clarifying Dr.
    Calvert is not an associate professor or regular staff member of
    USC, but rather is “‘a voluntary faculty member’” who was not
    employed or paid by USC. Moreover, although fellows received
    access to the medical school’s online library and academic
    lectures, according to USC, “[F]ellows in this program are not
    associated with the University.”
    Melugin reported further that in 2013 the Orange County
    District Attorney filed felony charges against Dr. Calvert,
    alleging Dr. Calvert “fabricat[ed] documents and perform[ed]
    unnecessary surgery as part of an insurance fraud scheme.”
    Melugin stated the charges were dropped in 2014, but deputy
    district attorney Shaddi Kamiabipour was quoted in an interview
    with the Orange County Register as saying the charges were not
    dismissed based on Dr. Calvert’s innocence, but rather, because
    the fraud appeared to be “a reasonably isolated incident.”
    8
    Melugin reported the Orange County district attorney’s office in a
    statement stood by Kamiabipour’s prior comment that “Calvert
    was not innocent.”
    KTTV published a written version of the report on its
    website.
    4.     The May 15, 2019 Report
    On May 15, 2019 KTTV broadcast a second news report on
    West’s allegations against Dr. Calvert. Melugin reported, “A lot
    of new details [are] coming out after our investigation into Dr.
    Jay Calvert first aired on Monday night.” Melugin reported USC
    had “removed all affiliation with [Dr. Calvert] off of their plastic
    surgery website.” Melugin stated Hakala held a press conference
    that day, in which she indicated more than 20 “new alleged
    victims” had contacted her to make similar allegations of
    insurance fraud and unnecessary surgeries. In footage of the
    press conference, Hakala opined USC would not have been in “a
    huge rush” to distance itself from Dr. Calvert if USC had full
    confidence in him.
    Melugin repeated Barens’s earlier statement denying the
    allegations. KTTV published a written version of the report on
    its website.
    5.    Dr. Calvert’s demand for retraction
    On May 30, 2018 Neville L. Johnson, attorney for
    Dr. Calvert, sent a letter to Melugin, KTTV news director Kris
    Knutsen, and the Fox legal department demanding retraction of
    the May 13 and 15 reports and accompanying online articles.
    Johnson objected to the “entire broadcasts” as “false” and “grossly
    libelous and slanderous” of Dr. Calvert. Johnson identified as
    9
    false the reports’ statements Dr. Calvert defrauded West’s and
    Houston’s insurers, performed unnecessary procedures or made
    false diagnoses to justify surgeries as medically necessary, and
    allowed USC fellows to operate on West.5
    Johnson asserted Houston “made identical allegations to
    the Medical Board of California, which rejected them in their
    entirety.” Johnson also objected to the reference in the May 13
    report to the criminal charges against Dr. Calvert that had been
    filed and later dismissed by the Orange County District Attorney.
    The Fox defendants made no retraction.
    B.     Dr. Calvert’s Complaint Against the Fox Defendants and
    Houston
    On June 9, 2020 the Calvert plaintiffs filed a complaint
    against the Fox defendants and Houston, alleging a single cause
    of action for libel. The complaint alleged 60 statements made in
    the May 13 and 15 reports were “[f]alse [a]ccusations.” The
    statements included that Dr. Calvert engaged in insurance fraud,
    prescribed unnecessary surgeries, committed medical
    malpractice, threatened patients, allowed USC students to
    perform surgeries on his behalf, and misrepresented his
    relationship with USC. The statements were defamatory, and
    the Fox defendants and Houston published them “with negligence
    and with actual malice, defined as knowledge of falsity or
    reckless disregard for truth or falsity.” The complaint further
    alleged Houston and the Fox defendants were aware of Houston’s
    complaint against Dr. Calvert to the Medical Board of California
    5      In his letter, Johnson also disputed West’s allegations of
    forcible sexual penetration, but those allegations were not
    discussed in the reports or articles.
    10
    (Medical Board) and the complaint “was defeated immediately,
    exonerating Dr. Calvert.”
    The complaint also alleged the Fox defendants “falsely
    communicated to viewers and readers that it had raised
    Houston’s accusations . . . with Dr. Calvert and his attorneys, but
    that they had refused to respond to Fox’s inquiries.” Instead, the
    Fox defendants “deliberately hid from Dr. Calvert and his
    attorney the fact that Houston was making accusations to Fox
    about Dr. Calvert.” The Fox defendants’ omission “creat[ed] the
    false impression that Dr. Calvert and his attorney had refused to
    comment on Houston’s accusations, [which] constituted knowing
    falsehood, and a conscious turning of a blind eye to evidence that
    would have refuted Houston’s claims, all highly probative of
    actual malice.” Further, the Fox defendants ignored “powerful
    evidence” of the falsity of West’s claims that had been supplied by
    Dr. Calvert’s attorneys. In addition, the Fox defendants led
    viewers to believe the report was based on Fox’s own
    investigation.
    C.     The Fox Defendants’ and Houston’s Special Motions To
    Strike
    In August and September 2020 the Fox defendants and
    Houston separately filed special motions to strike the complaint.
    They argued the Calvert plaintiffs’ defamation claims arose from
    protected activity in furtherance of their free speech in
    connection with an issue of public interest. Further, the Calvert
    plaintiffs could not establish a probability of prevailing on their
    claims because the reports were protected by the fair report
    privilege under section 47, subdivision (d), and the statements
    were mere opinion, substantially true, or not defamatory.
    11
    Further, the Calvert plaintiffs failed to comply with section 48a’s
    requirement that they timely demand a retraction, thereby
    limiting their recovery to special damages, which they had failed
    to plead. In addition, the Calvert plaintiffs failed adequately to
    plead the statements were made with actual malice, which was
    required based on Dr. Calvert’s status as a public figure. All
    claims by the professional corporation failed because none of the
    allegedly defamatory statements concerned the corporation.
    Houston also argued the statements he made concerned West’s
    lawsuit, the Orange County District Attorney’s felony complaint,
    and Houston’s Medical Board complaint, all of which were
    protected by the litigation privilege under section 47,
    subdivision (b).
    The Fox defendants attached as exhibits to their motion
    copies of West’s second amended complaint against Dr. Calvert
    and the felony complaint filed by the Orange County District
    Attorney. The Fox defendants also attached an article from the
    Orange County Register stating the felony charges against Dr.
    Calvert were dismissed, but quoting deputy district attorney
    Kamiabipour as saying, “‘We’re not dealing with a situation of me
    dismissing the case because he’s innocent . . . .’” In the article,
    Kamiabipour explained the charges were dropped “because [Dr.]
    Calvert agreed to pay an undisclosed amount of restitution to
    patients” and “agreed to change some of his practices to ensure
    patients consent to all procedures and know what [Dr.] Calvert is
    billing.”
    In a declaration filed in support of his special motion to
    strike, Houston averred, “I filed a complaint against Calvert with
    the Medical Board of California because of the mistakes and
    possible malpractice related to the various jaw implants and
    12
    surgeries . . . . The complaint only had to do with my jaw implant
    surgeries and did not have to do with my other procedures or
    visits. The complaint also had nothing to do with Calvert’s
    billing practices or allegations of fraud or other malpractice.”
    Houston declared that he confronted Dr. Calvert about his billing
    practices in late 2018, after learning Dr. Calvert had billed
    Houston’s insurer in connection with a cosmetic jaw implant
    procedure. In response, Dr. Calvert told Houston “that if he went
    down for insurance fraud, he would take [Houston] down with
    him so [Houston] shouldn’t push the issue.” Houston understood
    this as a threat to his “personal and financial safety.” Houston
    continued, “I do not bear any ill-will towards Dr. Calvert in his
    personal or professional capacity or towards his company.”
    In their oppositions, the Calvert plaintiffs did not dispute
    that Dr. Calvert was a public figure, or that their claims arose
    from the defendants’ protected activity in broadcasting
    information on an issue of public interest. Instead, the Calvert
    plaintiffs argued the fair report privilege did not apply; the
    statements were not substantially true; Johnson’s retraction
    letter to the Fox defendants met the requirements of section 48a;
    section 48a did not apply to Houston; and Dr. Calvert met his
    burden to plead and prove actual malice as to the Fox defendants
    and Houston. As to 15 of the allegedly “false accusations”
    identified in the complaint, the Calvert plaintiffs asserted the
    statements were included only for context. The Calvert plaintiffs
    failed to respond to the argument the allegedly defamatory
    statement did not concern Dr. Calvert’s professional corporation.
    Dr. Calvert submitted declarations in support of the
    Calvert plaintiffs’ oppositions. He attached to his declaration in
    opposition to the Fox defendants’ motion portions of West’s and
    13
    Houston’s medical records, consent forms, insurance
    authorizations, and billing histories, which he asserted
    contradicted their allegations. Dr. Calvert also attached to both
    declarations copies of a February 8, 2017 letter from the Medical
    Board with the subject “Michael Jay Houston.” The letter states,
    “Dear Dr. Calvert: [¶] This is to advise you the Medical Board of
    California has concluded its review of the complaint filed against
    you alleging you provided negligent treatment of the above-
    named patient. No further action is anticipated and the
    complaint file has been closed.” Houston objected to admission of
    the February 8, 2017 letter as hearsay. Dr. Calvert averred in
    each declaration, “I never threatened Houston physically nor
    have I ever threatened him with criminal or civil liability or in
    late 2015 or any time regarding any alleged insurance fraud.”
    The Calvert plaintiffs requested judicial notice of the
    transcripts of the March 2 and May 18, 2020 depositions of West
    and the December 15, 2019 deposition of Dr. Fairbanks, which
    were taken as part of West’s lawsuit against Dr. Calvert.
    On February 1, 2021 the trial court denied the special
    motions to strike. In its written rulings, the trial court granted
    the Calvert plaintiffs’ request for judicial notice of the West and
    Dr. Fairbanks deposition transcripts. The court overruled
    Houston’s evidentiary objections to the Medical Board letter. The
    court declined to analyze and denied the motions to strike 13 of
    the statements characterized by the Calvert plaintiffs in their
    oppositions as nonactionable allegations made solely for context.
    The trial court found the remaining 47 statements
    identified in the Calvert plaintiffs’ complaint fell within the scope
    of Code of Civil Procedure section 425.16 because they “concerned
    a public figure and a matter of public interest.” The court found
    14
    the fair report privilege did not apply to any of the statements.
    As to West’s, Hakala’s, and Melugin’s statements regarding
    West’s allegations against Dr. Calvert, the court found the
    statements did not directly reference West’s civil complaint or
    purport solely to be allegations from the lawsuit. The court
    reasoned the statements “derived from an interview” and were
    “not attributed to any judicial or official proceeding,” and
    therefore, the statements fell “outside of and expand the
    allegations” in West’s complaint.
    As to Houston’s allegations against Dr. Calvert, the trial
    court found, “Houston is making his own independent
    accusations,” which “are not a fair report of a judicial or official
    proceeding involving Mr. Houston.” Further, Houston’s
    statements were not protected by the litigation privilege because
    the statements were not made in any official proceeding and the
    privilege does not protect statements to the media. As to
    Melugin’s reporting on the Orange County District Attorney’s
    filing and dismissal of the criminal complaint against Dr.
    Calvert, the court found the statements were not protected by the
    fair report privilege because the post-dismissal comments did not
    “reflect the ‘gist or sting’” of the criminal complaint or proceeding.
    The trial court also found the Calvert plaintiffs adequately
    pleaded and proved actual malice. The court explained the pre-
    reporting letters from Barens to Leighton and Melugin showed
    the “story regarding West and Houston [was] ‘worthy of doubt.’”
    The court also considered West’s and Houston’s medical records
    and Dr. Calvert’s declaration in concluding, “Fox failed to
    sufficiently review pertinent medical and insurance records . . .
    before broadcasting and publishing its stories about Calvert.”
    Further, the Fox defendants’ reliance on biased sources (West
    15
    and Houston) evidenced their actual malice. The court found
    Melugin’s statement during the May 13 report that “‘Dr. Calvert’s
    attorney declined to respond to Houston’s allegations when asked
    for a comment by [KTTV],’” followed quickly by the statement
    “‘it’s not the first time that Calvert faced allegations of fraud,’”
    gave viewers the impression the accusations were true. In
    addition, the deposition testimony of West and Dr. Fairbanks
    supported Dr. Calvert’s assertion “he did not put an ‘unknown
    material’ or Gore-Tex in Ms. West’s nose.” The court further
    relied on Dr. Fairbanks’s deposition testimony that West did not
    receive inappropriate medical care and West’s deposition
    testimony she was not harmed by Dr. Calvert billing her insurer.
    As to Houston, the court found the Calvert plaintiffs had
    shown a probability they could produce clear and convincing
    evidence Houston made his statements regarding Dr. Calvert
    with actual malice. The court observed, “It is undisputed that
    Houston was not relying on information or claims by others, but
    rather unequivocally stated that he had first-hand experience
    with Dr. Calvert as to his allegations of misconduct, fraud and
    greed.” The court further reasoned, “Plaintiffs presented
    sufficient admissible evidence demonstrating malice by showing
    that Houston did not truthfully quote Dr. Calvert.”
    The Fox defendants and Houston timely appealed.
    DISCUSSION
    A.    Special Motions To Strike
    A cause of action arising from an act in furtherance of a
    defendant’s constitutional right of petition or free speech in
    connection with a public issue is subject to a special motion to
    strike unless the plaintiff demonstrates a probability of
    16
    prevailing on the claim. (Code of Civ. Proc., § 425.16, subd. (b)(1);
    see Bonni v. St. Joseph Health System (2021) 
    11 Cal.5th 995
    ,
    1009 (Bonni); Monster Energy Co. v. Schechter (2019) 
    7 Cal.5th 781
    , 788 (Monster Energy).) An “‘act in furtherance of a person’s
    right of petition or free speech under the United States or
    California Constitution in connection with a public issue’”
    includes, in relevant part, “any . . . conduct in furtherance of the
    exercise of . . . the constitutional right of free speech in connection
    with a public issue or an issue of public interest.” (Code Civ.
    Proc., § 425.16, subd. (e)(4).)
    “Litigation of an anti-SLAPP motion involves a two-step
    process. First, ‘the moving defendant bears the burden of
    establishing that the challenged allegations or claims “aris[e]
    from” protected activity in which the defendant has engaged.’
    [Citation.] Second, for each claim that does arise from protected
    activity, the plaintiff must show the claim has ‘at least “minimal
    merit.”’ [Citation.] If the plaintiff cannot make this showing, the
    court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009;
    accord, Monster Energy, supra, 7 Cal.5th at p. 788.)
    As part of the second step, we apply a “‘“summary-
    judgment-like procedure.” [Citation.] The court does not weigh
    evidence or resolve conflicting factual claims. Its inquiry is
    limited to whether the plaintiff has stated a legally sufficient
    claim and made a prima facie factual showing sufficient to
    sustain a favorable judgment. It accepts the plaintiff’s evidence
    as true, and evaluates the defendant’s showing only to determine
    if it defeats the plaintiff's claim as a matter of law. [Citation.]
    “[C]laims with the requisite minimal merit may proceed.”’”
    (Sweetwater Union High School Dist. v. Gilbane Building
    17
    Co. (2019) 
    6 Cal.5th 931
    , 940 (Sweetwater); accord, Taus v.
    Loftus (2007) 
    40 Cal.4th 683
    , 713-714 (Taus).)
    “[A]t the second stage of an anti-SLAPP hearing, the court
    may consider affidavits, declarations, and their equivalents if it is
    reasonably possible the proffered evidence set out in those
    statements will be admissible at trial. Conversely, if the evidence
    relied upon cannot be admitted at trial, because it is categorically
    barred or undisputed factual circumstances show inadmissibility,
    the court may not consider it in the face of an objection. If an
    evidentiary objection is made, the plaintiff may attempt to cure
    the asserted defect or demonstrate the defect is curable.”
    (Sweetwater, supra, 6 Cal.5th at p. 949.)
    “We review de novo the grant or denial of an anti-SLAPP
    motion.” (Park v. Board of Trustees of California State
    University (2017) 
    2 Cal.5th 1057
    , 1067; accord, Monster Energy,
    supra, 7 Cal.5th at p. 788.)
    B.    Defendants Carried Their Burden To Show Most of Their
    Claims Arose from Defendants’ Protected Activity
    The Calvert plaintiffs do not dispute that the Fox
    defendants and Houston carried their burdens to show the
    complaint’s defamation claims arose from the defendants’
    protected activity. We agree as to most of the challenged
    allegations. However, “[a]legations of protected activity that
    merely provide context without supporting a claim for recovery,
    cannot be stricken under the anti-SLAPP statute.” (Baral v.
    Schnitt (2016) 
    1 Cal.5th 376
    , 394 (Baral); accord, Bonni, supra,
    11 Cal.5th at p. 1012.) Therefore, the complaint’s allegations of
    protected activity that provide only context for the Calvert
    plaintiffs’ defamation claims must be disregarded for purposes of
    18
    the anti-SLAPP analysis (complaint ¶¶ 36, 38, 41-42, 46-47, 54,
    60, 66, 68, 70, 72-74, 80). We proceed to analyze whether the
    Calvert plaintiffs carried their burden to show a probability of
    prevailing on their claims.
    C.     The Law of Defamation
    The elements of a defamation claim are “‘“(a) a publication
    that is (b) false, (c) defamatory, and (d) unprivileged, and that (e)
    has a natural tendency to injure or that causes special damage.”’”
    (Taus, supra, 40 Cal.4th at p. 720; accord, Murray v. Tran (2020)
    
    55 Cal.App.5th 10
    , 37.) Additionally, “a libel plaintiff who is a
    public figure must prove, by clear and convincing evidence, that
    the defendant made the libelous statement with ‘“actual
    malice”—that is, with knowledge that it was false or with
    reckless disregard of whether it was false or not.’” (Edward v.
    Ellis (2021) 
    72 Cal.App.5th 780
    , 793 (Edward); accord, Reader’s
    Digest Assn. v. Superior Court (1984) 
    37 Cal.3d 244
    , 256; Jackson
    v. Mayweather (2017) 
    10 Cal.App.5th 1240
    , 1260 (Jackson).)
    Libel, a form of defamation (§ 44, subd. (a)), “is a false and
    unprivileged publication by writing, printing, picture, effigy, or
    other fixed representation to the eye, which 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.” (Id., § 45.) “In determining whether a statement
    is libelous we look to what is explicitly stated as well as what
    insinuation and implication can be reasonably drawn from the
    communication.” (Forsher v. Bugliosi (1980) 
    26 Cal.3d 792
    , 803;
    accord, Issa v. Applegate (2019) 
    31 Cal.App.5th 689
    , 703.) “[T]he
    expression used as well as the ‘whole scope and apparent object of
    the writer’ must be considered.” (Forsher, at p. 803; accord, Wong
    19
    v. Jing (2010) 
    189 Cal.App.4th 1354
    , 1373.) “[E]ach assertion of a
    defamatory statement represents a specific act that could, on its
    own, give rise to a claim for relief.” (Medical Marijuana, Inc. v.
    ProjectCBD.com (2020) 
    46 Cal.App.5th 869
    , 886, fn. 11.)
    D.     The Professional Corporation Failed To Carry Its Burden
    To Show a Probability of Prevailing on Its Claims Because
    None of the Challenged Statements Concerned the
    Professional Corporation
    The Fox defendants and Houston contend none of the
    allegedly defamatory statements concerned the professional
    corporation. The Calvert plaintiffs make no argument to the
    contrary.
    “In defamation actions the First Amendment . . . requires
    that the statement on which the claim is based must specifically
    refer to, or be ‘of and concerning,’ the plaintiff in some way.”
    (Blatty v. New York Times Co. (1986) 
    42 Cal.3d 1033
    , 1042;
    accord, Dickinson v. Cosby (2019) 
    37 Cal.App.5th 1138
    , 1160
    [“‘The “of and concerning” or specific reference requirement limits
    the right of action for injurious falsehood, granting it to those
    who are the direct object of criticism and denying it to those who
    merely complain of nonspecific statements that they believe
    cause them some hurt.’”]; Ferlauto v. Hamsher (1999)
    
    74 Cal.App.4th 1394
    , 1405 [statements by defendant that were
    not directed at plaintiff are not actionable].) None of the
    statements challenged in the complaint refers to the professional
    corporation. The May 13 report identified Dr. Calvert as the
    chief executive officer and president of the entity “Calvert M.D.
    Incorporated,” which the report indicated billed West’s insurer
    $32,000 in connection with West’s first nasal surgery performed
    20
    by Dr. Calvert, but the Calvert plaintiffs do not contend this
    single reference to the professional corporation is actionable.
    Because the professional corporation failed to carry its
    burden to show any of the allegedly defamatory statements
    concerned it, the trial court erred in denying the Fox defendants’
    and Houston’s special motions to strike the defamation claims
    brought by the professional corporation.
    E.     The Trial Court Erred in Denying the Fox Defendants’
    Special Motion To Strike the Complaint as to Dr. Calvert’s
    Claims
    1.    Dr. Calvert failed to show the challenged statements
    regarding USC were not substantially true
    Among the 60 statements identified in the complaint as
    false accusations, nine by Melugin related to Dr. Calvert’s
    relationship with USC.6 In their oppositions, the Calvert
    plaintiffs argued three of these statements were actionable
    (complaint ¶¶ 67, 69, 75), with the remaining six statements
    providing context for the actionable statements (id. ¶¶ 66, 68, 70,
    72-74). On appeal, the Fox defendants argue Dr. Calvert cannot
    prevail on his claims based on the three remaining statements
    because they are not materially false. Rather, the statements
    “correctly relayed USC’s position that Calvert inaccurately
    6     The complaint also identified as a false accusation the
    statement by Hakala, “If [USC] didn’t have anything to hide and
    [USC] had full confidence in [Dr.] Calvert, [USC] wouldn’t have
    been in a huge rush to distance [itself] so completely from him.”
    As we will discuss, Fox’s reporting of Hakala’s comments made at
    the press conference regarding West’s civil complaint are
    protected by the fair report privilege.
    21
    described their affiliation, and that USC subsequently removed
    him from the school’s plastic surgery website.”
    A plaintiff must prove the allegedly defamatory statements
    are not substantially true. (Taus, supra, 40 Cal.4th at p. 720;
    accord, Murray v. Tran, supra, 55 Cal.App.5th at p. 37; Jackson,
    supra, 10 Cal.App.5th at p. 1262.) Dr. Calvert submitted no
    evidence in opposition to the Fox defendants’ special motion to
    strike to show Melugin’s statements regarding USC were not
    substantially true. He has therefore failed to carry his burden to
    show a probability of success on his defamation claims based on
    these statements. (Monster Energy, supra, 7 Cal.5th at p. 788
    [“[A] plaintiff seeking to demonstrate the merit of the claim ‘may
    not rely solely on its complaint, even if verified; instead, its proof
    must be made upon competent admissible evidence.’”].)
    As to the six statements included for context, although they
    must be initially disregarded as part of the anti-SLAPP analysis
    because they merely provide context for the three statements
    that should have been stricken, the trial court erred in failing to
    grant the Fox defendants’ special motion to strike as to all nine
    statements (complaint ¶¶ 66-70, 72-75). (Baral, supra, 1 Cal.5th
    at p. 396 [as part of the prong 2 analysis, “[a]llegations of
    protected activity supporting the stricken claim are eliminated
    from the complaint, unless they also support a distinct claim on
    which the plaintiff has shown a probability of prevailing”].)
    22
    2.     The trial court erred in failing to apply the fair report
    privilege to the Fox defendants’ reporting on West’s
    allegations against Dr. Calvert, but the privilege does
    not protect Houston’s allegations
    (a)  The fair report privilege
    “Civil Code section 47, subdivision (d) confers an absolute
    privilege on any fair and true report in, or a communication to, a
    public journal of a judicial proceeding, or anything said in the
    course thereof.” (Sipple v. Foundation For Nat. Progress (1999)
    
    71 Cal.App.4th 226
    , 240 (Sipple); accord, Healthsmart Pacific,
    Inc. v. Kabateck (2016) 
    7 Cal.App.5th 416
    , 431 (Healthsmart)
    [“When [the fair report privilege] applies, the reported
    statements are ‘absolutely privileged regardless of the
    defendants’ motive for reporting’ them.”].) “‘Fair and true’ in this
    context does not refer to the truth or accuracy of the matters
    asserted in the judicial proceedings, but rather to the accuracy of
    the challenged statements with respect to what occurred in the
    judicial proceedings.” (Healthsmart, at p. 434; accord, McClatchy
    Newspapers, Inc. v. Superior Court (1987) 
    189 Cal.App.3d 961
    ,
    975.)
    “‘[A] media defendant does not have to justify every word of
    the alleged defamatory material that is published. [Citation.]
    The media’s responsibility lies in ensuring that the “gist or sting”
    of the report—its very substance—is accurately conveyed.
    [Citation.] Moreover, this responsibility carries with it a certain
    amount of literary license. The reporter is not bound by the
    straitjacket of the testifier’s exact words; a degree of flexibility is
    tolerated in deciding what is a “fair report.”’” (Sipple, supra,
    71 Cal.App.4th at p. 242; accord, Reader’s Digest Assn. v.
    Superior Court, supra, 37 Cal.3d at p. 262, fn. 13 [“‘“It is well
    23
    settled that a defendant is not required in an action of libel to
    justify every word of the alleged defamatory matter; it is
    sufficient if the substance, the gist, the sting of the libelous
    charge be justified.”’”]; J-M Manufacturing Co., Inc. v. Phillips &
    Cohen LLP (2016) 
    247 Cal.App.4th 87
    , 99-100 (J-M
    Manufacturing) [“the defendant is ‘permit[ted] a certain degree of
    flexibility/literary license’: ‘“‘“If the substantial imputations be
    proved true, a slight inaccuracy in the details will not prevent a
    judgment for the defendant, if the inaccuracy does not change the
    complexion of the affair so as to affect the reader of the article
    differently than the actual truth would.”’”’”]; Balzaga v. Fox News
    Network, LLC (2009) 
    173 Cal.App.4th 1325
    , 1337 [“The privilege
    applies if the substance of the publication or broadcast captures
    the gist or sting of the statements made in the official
    proceedings.”].)
    The accuracy of the challenged statements with respect to
    what occurred in the judicial proceedings “is measured by the
    natural and probable effect the statements would have on the
    average person reading, viewing, or listening to the report.”
    (Healthsmart, supra, 7 Cal.App.5th at p. 434; accord, Kilgore v.
    Younger (1982) 
    30 Cal.3d 770
    , 777; J-M Manufacturing, supra,
    247 Cal.App.4th at p. 100.) “Courts have construed the privilege
    broadly, ‘mindful of the Legislature’s intent . . . “to preserve the
    scarce resources of California’s courts [and] to avoid using the
    courts for satellite litigation.’”” (Healthsmart, supra, 7
    Cal.App.5th at p. 431; accord, J-M Manufacturing, supra,
    247 Cal.App.4th at p. 101; Sipple, supra, 71 Cal.App.4th at p. 240
    [“courts have construed Civil Code section 47, subdivision (d)
    broadly”].) Further, “California courts have construed the
    phrase, ‘judicial proceeding,’ broadly to include the filing of a
    24
    complaint. [Citations.] Thus, fair and true communications to
    the news media about allegations in a complaint are covered by
    the privilege.” (Healthsmart, at p. 432.)
    “In general, whether a privileged occasion exists within the
    meaning of Civil Code section 47, subdivision (d), is for the court
    to decide; whether the report of the official proceedings itself is
    “fair and true,” provided reasonable minds could disagree as to
    the effect of the communication on the average reader or listener,
    is a question of fact for the jury. (J-M Manufacturing, supra,
    247 Cal.App.4th at p. 98.) However, as we explained in J-M
    Manufacturing, “[a]lthough determining whether a
    communication is privileged under Civil Code section 47,
    subdivision (d), may properly be left to a jury in some instances,
    appellate courts have not been reluctant to decide the fair report
    privilege applies as a matter of law when the undisputed facts
    are insufficient to support a judgment for the plaintiff.” (Id. at p.
    99; see Healthsmart, at p. 431 [“When . . . ‘there is no dispute as
    to what occurred in the judicial proceeding reported upon or as to
    what was contained in the report,’ the question is one of law.”];
    Kilgore v. Younger, supra, 30 Cal.3d at page 777.)
    In J-M Manufacturing, supra, 247 Cal.App.4th at page 91,
    for example, we reversed the trial court’s denial of the
    defendant’s special motion to strike claims for defamation and
    trade libel where the trial court had found it was a question of
    fact for the jury whether the press release at issue was privileged
    as a fair and true report of a judicial proceeding under section 47,
    subdivision (d). We concluded the defendant’s press release
    following a jury trial was, as a matter of law, a fair and true
    report of the jury verdicts finding J-M Manufacturing had
    knowingly misrepresented to the plaintiff’s clients that J-M
    25
    Manufacturing’s pipe had been manufactured and tested in a
    manner assuring the pipe had the strength and durability
    required by industry standards. (Id. at pp. 91, 105; see Kilgore v.
    Younger, supra, 30 Cal.3d at page 777 [holding fair and true
    report privilege applied as a matter of law where average reader
    would not have read two newspaper articles discussing a report
    by the Attorney General that listed 92 individuals who were
    suspected of involvement in a wide variety of organized criminal
    activities as meaning the plaintiff was involved in every listed
    type of organized criminal activity, as opposed to the one crime of
    which he had been convicted].) In this case, as in Kilgore and
    J-M Manufacturing, we decide as a matter of law whether the
    undisputed statements in the two broadcasts constituted fair
    reports of the allegations in West’s second amended complaint.
    Although the plaintiff bears the burden at the second step
    of the anti-SLAPP analysis to show a probability of prevailing on
    his or her claims, “the defendant bears the burden of proving the
    privilege’s applicability.” (Neurelis, Inc. v. Aquestive
    Therapeutics, Inc. (2021) 
    71 Cal.App.5th 769
    , 794; accord,
    Hawran v. Hixson (2012) 
    209 Cal.App.4th 256
    , 278.)
    (b)    The fair report privilege protects most of the
    challenged statements by West, Hakala, and
    Melugin regarding West’s allegations against
    Dr. Calvert
    The Fox defendants contend Dr. Calvert cannot establish a
    probability of prevailing on his defamation claims because the
    reports are absolutely privileged as fair and true reports of a
    judicial proceeding to a public journal (§ 47, subd. (d)(1)). We
    agree most of the statements made by Melugin, West, and
    26
    Hakala pertaining to West’s second amended complaint are
    privileged.
    Dr. Calvert contends the trial court correctly found the
    challenged statements were not protected by the fair report
    privilege because they were not sufficiently attributed to West’s
    lawsuit in the reports. We have reviewed videos of the two news
    reports, and both broadcasts clearly identified West’s lawsuit as
    the subject of the report and the source of West’s allegations. At
    the outset of the May 13 report, Melugin identified West as “[a]
    patient . . . taking legal action” and described West’s allegations
    while a background graphic showed the caption page of the
    second amended complaint against Dr. Calvert. The report later
    specified West had sued Dr. Calvert and USC, and her second
    amended complaint alleged causes of action for fraud and medical
    battery. Further, the report on multiple occasions identified the
    assertions made by West and Hakala as allegations or referred
    directly to West’s lawsuit.
    Likewise, in the opening moments of the May 15 report on
    West’s and Hakala’s statements at the press conference, Melugin
    stated, “As we reported, West is suing Beverly Hills plastic
    surgeon Dr. Jay Calvert and USC for fraud and medical battery
    after she accuses Calvert of performing unnecessary and
    damaging procedures on her as part of an insurance fraud
    scheme.” Thus, both reports clearly identify West’s lawsuit as
    the source of West’s allegations. (See Healthsmart, supra,
    7 Cal.App.5th at p. 436 [where reporter identified plaintiff’s
    attorney near the outset of report and frequently referenced the
    lawsuit with background images showing the complaint, the
    average viewer would understand the attorney’s statements
    referred to lawsuit’s allegations].)
    27
    Nor do statements by Melugin referring to the Fox
    defendants’ “investigations” of Dr. Calvert remove the challenged
    statements from the protection of the fair report privilege. In
    context, a reasonable viewer would not understand the references
    to investigations to mean the Fox defendants were adopting or
    endorsing West’s allegations as their own or making an
    independent assessments of Dr. Calvert’s wrongdoing. Rather,
    the Fox defendants’ investigation is more naturally understood as
    the aggregation of allegations against Dr. Calvert from several
    sources, including West and Hakala, Houston, the Orange
    County district attorney’s office, and USC. Further, the reports
    clearly attribute each set of allegations to its source.
    The Calvert plaintiffs also argue, as the trial court found,
    the interviews and press conferences on which the broadcasts
    were based do not qualify for protection under the fair report
    privilege. The law is to the contrary. The Courts of Appeal have
    consistently held statements to the press regarding pending
    litigation in the form of interviews and press releases fall within
    the privilege. (See Argentieri v. Zuckerberg (2017) 
    8 Cal.App.5th 768
    , 790 [attorney’s email to members of the press that fairly
    described the allegations in malicious prosecution complaint was
    protected by the fair report privilege]; Healthsmart, supra,
    7 Cal.App.5th at p. 432 [attorneys’ statements on television and
    radio about allegations in complaint were fair and true
    communications to the news media covered by the privilege]; J-M
    Manufacturing, supra, 247 Cal.App.4th at p. 105 [fair report
    privilege protected law firm’s posttrial press release that
    contained “self-promotion and puffery” but fell “comfortably
    within the permissible degree of flexibility and literary license
    afforded communications to the media concerning judicial
    28
    proceedings”]; Sipple, supra, 71 Cal.App.4th at pp. 245-246 [news
    article was a fair and true report on custody proceedings
    supported by court testimony, deposition testimony, and
    interviews with the parties and their supporters].) Thus, the
    statements made by West and Hakala in interviews and press
    conferences included in the May 13 and 15 reports are protected
    by the privilege, as long as the statements accurately convey the
    gist and sting of West’s allegations in the second amended
    complaint.
    The Calvert plaintiffs contend the statements made by
    West, Hakala, and Melugin from the interviews and press
    conference went beyond the gist and the sting of the allegations
    in West’s second amended complaint. However, the challenged
    statements closely track the second amended complaint’s
    allegations. For example, West’s statement “[i]t’s just like my
    insurance was [Dr. Calvert’s] personal ATM card” is a near
    verbatim quote from West’s second amended complaint. The
    Calvert plaintiffs assert the trial court found West’s statement
    came “after Fox state[d] that it reviewed documents, insurance
    statements, billings records and records from the State of
    California that were provided to them by West.” But the May 13
    report properly attributed West’s statement to her second
    amended complaint: Less than a minute before West made the
    challenged statement, Melugin stated, “[A]ccording to [West’s]
    lawsuit, she discovered Calvert had fraudulently billed her
    insurance over five hundred and twenty thousand dollars and
    fraudulently collected over three hundred and thirty thousand
    dollars.” Thus, it is clear in context that West’s statement refers
    to her allegations of insurance fraud against Dr. Calvert.
    29
    The Calvert plaintiffs similarly contend the trial court
    properly found the statement “West told [KTTV] she was
    flabbergasted after she says Dr. Calvert’s front desk told her a
    USC fellow did one of her surgeries instead of Dr. Calvert” was
    not protected by the fair report privilege because the statement
    was not “prefaced as [an] allegation in the West Complaint” or
    “attributed to any judicial or official proceeding,” and instead was
    “derived from an interview.” However, considering the May 13
    report as a whole, it would be clear to the average viewer the
    statement related to the allegations in West’s second amended
    complaint that Dr. Calvert committed medical battery by having
    USC fellows perform surgeries on West without her consent. The
    fact West was surprised to learn someone performed the surgery
    other than Dr. Calvert simply underscores her allegation she did
    not consent to the procedure, and it does not alter the gist or
    sting of West’s allegation that a USC fellow performed the
    surgery on her without her consent.
    The Calvert plaintiffs also contend the trial court correctly
    found the privilege did not apply to the statement in the online
    article accompanying the May 13 report that “West provided
    [KTTV] with the prescription for her painkillers after the
    surgery, showing they were prescribed by the USC fellow, instead
    of Dr. Calvert,” because West did not allege the USC fellows
    improperly wrote prescriptions for her. Although Melugin’s
    report did not identify the USC fellow, the second amended
    complaint alleged that defendant Ziyad Hammoudeh, M.D., was
    one of two USC surgical fellows who worked in Dr. Calvert’s
    fellowship program and performed a surgical procedure on West
    to which she had not consented. In support of this allegation,
    West alleged she found a pain medication that Dr. Hammoudeh
    30
    had prescribed to her following one of her surgeries. Thus,
    Melugin’s statement about the pain medication both related to
    the allegations in the second amended complaint and did not
    alter the gist or sting of the allegations of nonconsensual surgery.
    In short, the reports’ statements relating to West’s
    allegations and the interviews with West and Hakala may have
    “expanded on the theme but did not otherwise alter the substance
    of the privileged material such that a reader would be affected
    differently if the information garnered by interviews [with West
    and Hakala] were not included.” (Sipple, supra, 71 Cal.App.4th
    at p. 245.)7
    Thus, the trial court erred in failing to grant the Fox
    defendants’ special motion to strike as to these statements in the
    7      It is a closer call whether the references in the May 15
    report to Hakala’s statements at the press conference regarding
    additional victims falls within the fair and true report privilege.
    Melugin reported that “according to the plaintiff’s attorney in a
    press conference this afternoon, they’ve had over twenty new
    alleged victims contact them, . . . making similar accusations
    against the doctor about unnecessary surgeries and insurance
    fraud . . . .” Melguin further reported, “West says . . . new alleged
    victims are contacting her attorneys.” The trial court found these
    statements did not recite or reflect allegations in West’s second
    amended complaint. Arguably the statements do not alter the
    gist or sting of West’s allegations that Dr. Calvert engaged in “an
    orchestrated scheme of insurance fraud” affecting not just West,
    but also Dr. Calvert’s other patients. However, because we
    conclude below that Dr. Calvert did not show actual malice as to
    the Fox defendants, we do not reach whether the statements fall
    within the fair report privilege.
    31
    complaint (complaint ¶¶ 23-36, 50-51, 56-59, 62, 76, 79-80, 82-
    83).8
    (c)    The fair report privilege does not protect the
    statements by Melugin and Houston regarding
    Houston’s allegations against Dr. Calvert9
    Unlike West’s allegations, Houston’s allegations do not
    relate to and are not attributed to any judicial proceeding
    protected under section 47, subdivision (d). The Fox defendants
    acknowledge Houston is not identified as a patient of Dr. Calvert
    in West’s second amended complaint, but they contend Houston’s
    statements “expanded on the specific allegations in the West
    Lawsuit” without “alter[ing] their gist and sting.” Although
    Houston’s allegations of insurance fraud by Dr. Calvert tend to
    corroborate some of West’s allegations, Houston’s statements
    involve separate and distinct instances of asserted malfeasance
    by Dr. Calvert.
    The Fox defendants rely on Sipple, supra, 
    71 Cal.App.4th 226
     and Dorsey v. National Enquirer, Inc. (9th Cir. 1992)
    8      As to the statements alleged in the complaint for context
    regarding West’s allegations, because they merely provide
    context for the statements that should have been stricken, the
    trial court erred in failing to grant the Fox defendants’ special
    motion to strike as to the context allegations (complaint ¶¶ 36,
    80). (Baral, supra, 1 Cal.5th at p. 396.)
    9     We discuss these allegations with respect to the Calvert
    plaintiffs’ separate claims against the Fox defendants and
    Houston. However, as we discuss below, Dr. Calvert met his
    burden to present evidence of actual malice as to Houston, but
    not as to the Fox defendants.
    32
    
    973 F.2d 1431
    , but both are distinguishable. In Sipple, Mother
    Jones magazine published an article reporting on a custody
    dispute between a nationally known political consultant and his
    first wife. In the custody dispute, the consultant’s first and
    second wives each testified to suffering physical and emotional
    abuse by the consultant. (Sipple, at pp. 230-231.) To prepare the
    article, the author reviewed testimony from the hearing and the
    first wife’s deposition in the custody case, and he interviewed the
    women and their friends and relatives to confirm the women’s
    stories. (Id. at pp. 232-233.) The Court of Appeal concluded the
    fair report privilege protected the article, rejecting the
    consultant’s argument that statements in the article were not
    included in the court proceedings, and thus received no
    protection. (Id. at p. 245.) The court reasoned, “[A]lthough [the
    article] expands on specific incidents of abuse, [it] does not
    change the gist or sting of the courtroom statements or the
    complexion of the affair.” (Ibid.) The Fox defendants attempt to
    analogize their interview with Houston to the author’s interviews
    with the women and their friends and relatives. But the
    interviews in Sipple related to the abuse the women in the
    custody proceeding testified about, whereas Houston’s interview
    included only his own allegations against Dr. Calvert.
    In Dorsey, a famous singer sued the National Enquirer for
    defamation based on an article it published that reported on a
    parentage suit in which the mother of the singer’s child claimed
    the singer suffered from the AIDS virus. (Dorsey v. National
    Enquirer, Inc., supra, 973 F.2d at p. 1433.) The article quoted
    the mother and a private investigator she hired as asserting
    great confidence in the allegation. (Ibid.) Applying California
    law, the Ninth Circuit concluded the fair report privilege
    33
    protected the mother’s and investigator’s out-of-court statements
    where the statements “merely confirm[ed] the gist” of the
    mother’s statement in the lawsuit “‘on information and belief’”
    that the singer had the AIDS virus. (Id. at pp. 1436-1437.) Here,
    Houston’s interview does not merely confirm the gist of West’s
    allegations, but rather, he provided new allegations of alleged
    misconduct by Dr. Calvert in his treatment of Houston.
    3.    The trial court erred in finding as to the remaining
    statements by Melugin that Dr. Calvert showed a
    probability he can produce clear and convincing
    evidence of the Fox defendants’ actual malice
    Dr. Calvert does not dispute he is a public figure and
    therefore must prove the Fox defendants published the
    challenged statements with actual malice. “Although at trial a
    public figure plaintiff must establish actual malice by clear and
    convincing evidence, in the context of an anti-SLAPP motion the
    plaintiff must instead establish only a ‘probability’ that he or she
    can produce clear and convincing evidence of actual malice.”
    (Edward, supra, 72 Cal.App.5th at p. 793; accord, Ampex Corp. v.
    Cargle, 
    128 Cal.App.4th 1569
    , 1578.) Dr. Calvert has not met
    this burden.10
    10    The Fox defendants contend the Calvert plaintiffs failed
    adequately to plead in the complaint that the Fox defendants
    acted with actual malice, citing to Vogel v. Felice (2005)
    
    127 Cal.App.4th 1006
    , 1017. Because we find the Calvert
    plaintiffs did not meet their burden to show a probability of
    proving actual malice as to the Fox defendants, we need not
    reach this contention. We discuss this argument as to Houston
    below.
    34
    The actual malice standard “focuses solely on the
    defendant’s subjective state of mind at the time of publication.”
    (Sutter Health v. UNITE HERE (2010) 
    186 Cal.App.4th 1193
    ,
    1210; accord, Bose Corp. v. Consumers Union of United States,
    Inc. (1984) 
    466 U.S. 485
    , 512 [post-publication, incredible
    explanation for inaccuracy by author of report did “not establish
    that he realized the inaccuracy at the time of publication”];
    Khawar v. Globe Int’l., Inc. (1998) 
    19 Cal.4th 254
    , 262 [“[T]he
    publisher of a defamatory statement acts with reckless disregard
    amounting to actual malice if, at the time of publication, the
    publisher ‘in fact entertained serious doubts as to the truth of his
    publication.’”].) “‘[A]ctual malice can be proved by circumstantial
    evidence.’ [Citation.] Considerations such as ‘anger and hostility
    toward the plaintiff,’ ‘reliance upon sources known to be
    unreliable [citations] or known to be biased against the plaintiff,’
    and ‘failure to investigate’ may, ‘in an appropriate case, indicate
    that the publisher himself had serious doubts regarding the truth
    of his publication.’ [Citation.] Such evidence is relevant ‘to the
    extent that it reflects on the subjective attitude of the
    publisher’ . . . .” (Balla v. Hall (2021) 
    59 Cal.App.5th 652
    , 683;
    accord, Edward, supra, 72 Cal.App.5th at p. 793.) “However,
    ‘failure to investigate, without more, generally is insufficient’ to
    show malice. [Citation.] And ‘we will not infer actual malice
    solely from evidence of ill will, personal spite or bad motive.’”
    (Edward, at p. 793; accord, Ampex Corp. v. Cargle, supra,
    128 Cal.App.4th at p. 1579.)
    Further, “‘the press need not accept [a defendant’s]
    “denials, however vehement; such denials are so commonplace in
    the world of polemical charge and countercharge that, in
    themselves, they hardly alert the conscientious reporter to the
    35
    likelihood of error.” [Citation.]’ [Citation.] ‘A denial only serves
    to buttress a case for actual malice when there is something in
    the content of the denial or supporting evidence produced in
    conjunction with the denial that carries a doubt-inducing
    quality.’” (Young v. CBS Broadcasting, Inc. (2012)
    
    212 Cal.App.4th 551
    , 564; accord, Harte-Hanks Communications,
    Inc. v. Connaughton (1989) 
    491 U.S. 657
    , 691, fn. 37.)
    With respect to Melugin’s statements regarding the Orange
    County District Attorney’s filing and later dismissal of felony
    charges against Dr. Calvert based on alleged insurance fraud,
    Dr. Calvert submitted no evidence Melugin (or the other Fox
    defendants) acted with actual malice in describing statements
    made by deputy district attorney Kamiabipour or other
    representatives of the district attorney’s office. Although
    Dr. Calvert averred in his declaration he “never committed . . .
    criminal insurance fraud regarding any patient” and he was
    “never proven guilty by the Orange County District Attorney’s
    office,” he has not provided any evidence to support his claim the
    Fox defendants knew Kamiabipour’s statements in the May 13
    report as to why the criminal complaint was dismissed were
    false, or that the Fox defendants entertained serious doubt the
    statements were truthful at the time of publication. Further, Dr.
    Calvert presents no argument on appeal that these statements
    were made with actual malice. Thus, the trial court erred in
    failing to grant the Fox defendants’ special motion to strike these
    statements (complaint ¶¶ 46-49).11
    11    As to the statements alleged in the complaint for context
    regarding the criminal complaint, because they merely provide
    context for the statements that should have been stricken, the
    36
    Dr. Calvert also argues the Fox defendants ignored strong
    evidence of the falsity of West’s claims, including the deposition
    testimony of West and Dr. Fairbanks, as well as medical and
    insurance documentation submitted in opposition to the special
    motions to strike. The trial court erred in considering this
    evidence. The deposition transcripts were provided to the court
    in November 2020 with the Calvert plaintiffs’ oppositions to the
    motions. There is no evidence in the record showing the
    documents were available to the Fox defendants prior to the time
    of publication (in May 2019). Likewise, Dr. Calvert stated in his
    November 19, 2020 declaration that West had consented to the
    surgeries and the surgeries were medically necessary, and he
    attached medical and insurance documentation to support his
    assertions, but the declaration was filed in the court only after
    the 2019 broadcasts. There is no evidence in the record that the
    Calvert plaintiffs provided this information to the Fox defendants
    prior to the broadcast. The deposition testimony and Calvert’s
    declaration and attached documents are therefore irrelevant to
    the Fox defendants’ subjective mental state at the time the
    reports were published. (See Sutter Health v. UNITE HERE,
    supra, 186 Cal.App.4th at p. 1210.)
    Dr. Calvert further relies on Barens’s April 25, May 10, and
    May 13, 2019 pre-publication letters to Leighton and Melugin to
    show actual malice, but these letters simply deny any
    wrongdoing and state repeatedly without supporting
    documentation that West consented to the surgeries and
    Dr. Calvert properly billed the insurance companies because the
    trial court erred in failing to grant the Fox defendants’ special
    motion to strike as to the context allegations (complaint ¶¶ 46-
    47). (Baral, supra, 1 Cal.5th at p. 396.)
    37
    surgeries were medically necessary. In his April 25 letter,
    Barens invited Leighton to review West’s medical charts and
    billing records. However, in his May 13 letter, Barens repeated
    that West’s allegations were “categorically untrue and can be
    disproven by written documentation,” but stated he could not
    release West’s medical records because West had refused to
    consent to disclosure. There is no evidence in the record that
    Barens ever provided to the Fox defendants any evidence to
    support Barens’s conclusory statements that Dr. Calvert had
    committed no wrongdoing. Barens’s May 10 letter similarly
    stated that West had consented both to the surgeries and the
    insurance billing. But the focus of Barens’s May 10 letter was on
    the “utter absurdity” of West’s claims of sexual penetration,
    which Barens relied on to argue West was not credible. There is
    nothing in the record to show West’s allegation she was subjected
    to nonconsensual sexual penetration while unconscious during a
    surgery was false. Regardless, the Fox defendants elected not to
    report on these allegations by West, instead focusing on her
    claims for fraud and medical battery. Moreover, rather than
    demonstrating the Fox defendants intentionally avoided the
    truth, the May 10 letter acknowledges Barens had received
    “dozens and dozens of calls from Mr. Leighton asking questions”
    about Dr. Calvert’s treatment of West. In light of the lack of any
    documentation to support Barens’s denials of Dr. Calvert’s
    wrongdoing, the Fox defendants were not required to accept
    Barens’s denials as true. (See Young v. CBS Broadcasting, Inc.,
    supra, 212 Cal.App.4th at p. 564.)
    Likewise, the September 25, 2017 letter from Dr. Fairbanks
    to Dr. Calvert, which Barens provided to Leighton, does not
    undermine West’s allegations of fraud and medical battery.
    38
    Dr. Fairbanks explained in his letter that he had declined to
    accept West back as a patient because of her “past history of
    noncompliance” in 2009. Specifically, West did not follow his
    surgical recommendation to remove an implant in her nose that
    had caused her nose to become infected. Dr. Fairbanks also
    stated in his letter that West’s medical records did not support
    her claim Dr. Calvert placed Gore-Tex in her nose that
    contributed to her nose infections. The letter does not provide
    any information material to the allegations Dr. Calvert falsely
    characterized cosmetic procedures as medically necessary,
    performed additional unconsented procedures to bill his patients’
    insurers, or allowed USC fellows to perform surgery on his
    patients. Further, the letter confirms West’s allegations that Dr.
    Calvert performed multiple surgeries on her nose from 2013 to
    2017 and West believed things had “‘gone wrong’” after the first
    surgery.
    Thus, to the extent Melugin’s reporting of West’s and
    Hakala’s statements at the press conference—that more 20 new
    alleged victims had contacted Hakala—exceeded the scope of
    West’s second amended complaint, Dr. Calvert’s claims based on
    these statements fail because he did not show the Fox defendants
    published the statements with actual malice.
    Nor has Dr. Calvert shown the Fox defendants had other
    reasons to doubt the allegations of Houston. Dr. Calvert
    contends the Fox defendants knew the Medical Board had
    rejected Houston’s complaint against Dr. Calvert, relying on the
    February 8, 2017 letter from the Medical Board to Dr. Calvert.
    But the Calvert plaintiffs presented no evidence the Fox
    defendants knew of Houston’s complaint to the Medical Board,
    the nature of the complaint, or the February 8, 2017 letter
    39
    (addressed only to Dr. Calvert). Further, the letter indicates only
    that Houston’s complaint alleged “negligent treatment” by Dr.
    Calvert, not insurance fraud as alleged by Houston in the May 13
    report.
    Dr. Calvert alternatively contends the statement by
    Melugin in his May 13 report that Dr. Calvert declined to
    comment on Houston’s allegations evidenced actual malice
    because the Fox defendants intentionally concealed from
    Dr. Calvert and his attorneys that they had interviewed Houston,
    and had the Calvert plaintiffs known this, they would have
    refuted Houston’s allegations. But Dr. Calvert provides no
    authority for the proposition the Fox defendants were required to
    divulge their sources to Dr. Calvert. Further, Melugin included
    in his report Barens’s statement that “‘[e]very procedure
    performed by Dr. Calvert on every patient was consented to in
    writing prior to the procedure by the respective patient.’” The
    inclusion of this denial in the broadcast undermines the Calvert
    plaintiffs’ argument the Fox defendants harbored actual malice.
    Dr. Calvert’s reliance on Antonovich v. Superior Court
    (1991) 
    234 Cal.App.3d 1041
     is misplaced. There, the Court of
    Appeal concluded the plaintiff, a former elected official, had
    submitted sufficient evidence of actual malice to survive
    summary judgment on his defamation claim against his
    successor, where he presented evidence that his successor failed
    to investigate whether the allegedly defamatory statement was
    true—that the former official had destroyed office files after he
    lost the election. (Id. at pp. 1051-1052.) In finding a triable issue
    as to actual malice, the court relied on evidence the former
    official left vast quantities of files in his vacated office that were
    maintained by the predecessor’s staff for at least eight years. (Id.
    40
    at p. 1052.) Here, Dr. Calvert has not submitted evidence the
    Fox defendants had access to, but failed to consult, clear evidence
    of the falsity of the reported allegations.
    The trial court therefore erred in denying the Fox
    defendants’ special motion to strike as to Melugin’s reporting of
    West’s and Hakala’s statements at the press conference that over
    20 potential victims had contacted Hakala (complaint ¶¶ 77, 81),
    and Melugin’s and Houston’s statements regarding Houston’s
    allegations (complaint ¶¶ 37-45, 52-55, 60-61, 63-65, 78).12
    F.    The Trial Court Did Not Err in Denying Houston’s Special
    Motion To Strike the Complaint as to Dr. Calvert’s Claims
    1.     Dr. Calvert adequately pleaded Houston acted with
    actual malice and carried his burden to show a
    probability he can produce clear and convincing
    evidence of actual malice
    Houston contends Dr. Calvert failed adequately to plead
    that Houston acted with actual malice because the complaint did
    not provide sufficient facts, including details about the Medical
    Board complaint. Houston also argues Dr. Calvert failed to meet
    his burden to present clear and convincing evidence of actual
    malice. Neither contention has merit.
    In order to establish a probability of prevailing on a claim
    as part of the second step of the anti-SLAPP analysis, a plaintiff
    must “‘“state[ ] and substantiate[ ] a legally sufficient claim.’”’
    (Wilson v. Parker, Covert & Chidester (2002) 
    28 Cal.4th 811
    , 821;
    12    Because we reverse the trial court’s denial of the Fox
    defendants’ special motion to strike, we do not reach their
    argument the Calvert plaintiffs failed to comply with
    section 48a’s requirement that they timely demand a retraction.
    41
    accord, Taus, 
    supra,
     40 Cal.4th at p. 713.) Where the plaintiff is
    a public figure, a defamation complaint that “fails to plead that
    defendant made the challenged statements with ‘actual malice,’”
    that is “‘with knowledge that it was false or with reckless
    disregard of whether it was false or not,’” is legally insufficient.
    (Vogel v. Felice (2005) 
    127 Cal.App.4th 1006
    , 1017.) Dr. Calvert’s
    complaint adequately alleged defendants published the
    defamatory statements “with actual malice, defined as knowledge
    of falsity or reckless disregard for truth or falsity,” as shown by,
    among other things, Houston’s awareness the Medical Board had
    rejected his complaint against Dr. Calvert, thereby “exonerating
    Dr. Calvert.” Further, as discussed below with regard to Dr.
    Calvert’s offer of proof on this issue, Dr. Calvert’s allegations
    Houston falsely accused Dr. Calvert of threatening his patients
    fairly allege Houston fabricated at least some of his accusations
    against Dr. Calvert and therefore made his statements with
    knowledge of their falsity.
    Vogel v. Felice, supra, 
    127 Cal.App.4th 1006
    , relied on by
    Houston, is distinguishable. There, the Court of Appeal
    concluded the trial court erred in denying the defendant’s special
    motion to strike the complaint for defamation, explaining the
    complaint’s “conclusory boilerplate allegation that defendant
    acted ‘maliciously and oppressively, and in conscious disregard of
    [plaintiffs’] rights’” was not sufficient to plead actual malice. (Id.
    at p. 1018.) Here, the Calvert plaintiffs pleaded the correct
    constitutional standard, as well as specific facts to show
    Houston’s actual malice.
    Tschirky v. Superior Court (1981) 
    124 Cal.App.3d 534
    , also
    relied on by Houston, is not on point because the court applied
    the standard for actual malice for purposes of the common
    42
    interest privilege now codified at section 47, subdivision (c), not
    the constitutional standard for pleading actual malice to support
    a defamation claim brought by a public figure first articulated in
    New York Times Co. v. Sullivan (1964) 
    376 U.S. 254
    , 279-280.
    Further, the Tschirky court concluded the plaintiff had not
    adequately pleaded facts supporting his allegations of actual
    malice because he alleged only that the defendant published the
    challenged statements out of ill will toward the plaintiff and his
    desire to oppress the plaintiff, without any supporting facts.
    (Tschirky, at p. 539.) By contrast, the allegations here, which
    used the Sullivan standard for constitutional malice, alleged the
    defendants acted “with actual malice, defined as knowledge of
    falsity or reckless disregard for truth or falsity.” (See Sullivan, at
    pp. 279-280.) These allegations, along with the additional alleged
    facts, were sufficient to plead malice.13 (See Mullins v. Brando
    (1970) 
    13 Cal.App.3d 409
    , 419-420 [complaint alleging “statement
    and publication was made by defendants with evil motive and
    malice, wil[l]fully and wrongfully, and with intent to injure,
    disgrace and defame plaintiffs and with wanton and reckless
    disregard for the truth or falsity of the statements made”
    sufficiently pleaded actual malice in defamation action involving
    public figure].)
    13    Resolute Forest Products, Inc. v. Greenpeace International
    (N.D. Cal. 2017) 
    302 F.Supp.3d 1005
     and Wynn v. Chanos (N.D.
    Cal. 2014) 
    75 F.Supp.3d 1228
    , cited by the Fox defendants in
    arguments joined by Houston, do not support Houston’s position.
    These federal authorities apply the federal pleading standard
    under rule 12(b)(6) of the Federal Rule of Civil Procedure, not
    California procedural rules. (See Resolute Forest, at p. 1015;
    Wynn, at p. 1233.)
    43
    Houston’s contention Dr. Calvert did not meet his burden
    to establish a probability he can produce clear and convincing
    evidence of actual malice fares no better. Houston argues Dr.
    Calvert’s denials of misconduct are not sufficient to establish
    Houston’s actual malice. Houston is correct that Dr. Calvert’s
    statements in his declaration that he properly billed Houston’s
    insurance company for the surgical procedures he performed on
    Houston do not show that Houston’s statements to the contrary
    were made with knowledge the statements were false or reckless
    disregard for their truth. However, Dr. Calvert’s statement in his
    declaration that “[he] never threatened Houston physically
    nor . . . ever threatened him with criminal or civil liability . . . in
    late 2015 or any time regarding any alleged insurance fraud” is of
    a different nature because it directly contradicts Houston’s
    statement in the May 13 report that he feared Dr. Calvert
    because Dr. Calvert “threaten[ed]” him when Houston confronted
    Dr. Calvert about his billing practices. As Houston asserted in
    the report, Dr. Calvert told him, “[I]f I go down for insurance
    fraud I’m taking you with me.” If Dr. Calvert did not make
    threatening statements toward Houston, this can only mean
    Houston fabricated the statements.
    Therefore, if we accept as true Dr. Calvert’s denial that he
    had ever threatened Houston, as we must in evaluating
    Dr. Calvert’s evidence at the second step of the anti-SLAPP
    analysis (Sweetwater, 
    supra,
     6 Cal.5th at p. 940), it follows that
    Houston fabricated his allegations Dr. Calvert had threatened
    him. On these facts, it would be a reasonable inference that
    Houston harbored personal hostility against Dr. Calvert and
    acted with actual malice in making his allegations of insurance
    fraud. (See Masson v. New Yorker Magazine, Inc. (1991) 
    501 U.S. 44
    496, 517, 521(Masson) [“a deliberate alteration of the words
    uttered by a plaintiff” may demonstrate the defendant
    deliberately or recklessly altered his quotation of what the
    defendant said if “the alteration results in a material change in
    the meaning conveyed by the statement”]; Reader’s Digest v.
    Superior Court, supra, 37 Cal.3d at p. 257 [the defendant
    publisher’s “[p]rofessions of good faith will be unlikely to prove
    persuasive . . . where a story is fabricated by the defendant, is the
    product of his imagination, or is based wholly on an unverified
    anonymous telephone call.”]; Christian Research Institute v.
    Alnor (2007) 
    148 Cal.App.4th 71
    , 85 [“malice may be inferred
    where . . . ‘a story is fabricated by the defendant, [and] is the
    product of his imagination’”].)
    Houston’s attempt to distinguish Masson as involving
    alteration of a written quote is unpersuasive. As the United
    States Supreme Court observed in Masson, “[t]he use of
    quotations to attribute words not in fact spoken bears in a most
    important way on [the actual malice] inquiry . . . .” (Masson,
    supra, 501 U.S. at p. 517.) Here, Dr. Calvert produced sufficient
    evidence Houston attributed threatening words to him that he
    had not spoken. This was sufficient to carry Dr. Calvert’s burden
    to demonstrate the minimal merit required at the second step of
    the anti-SLAPP analysis.14 (See Bonni, supra, 11 Cal.5th at
    p. 1009.)
    14    Houston also argues the trial court erred in considering the
    February 8, 2017 letter resolving the Medical Board complaint
    against Dr. Calvert because it was inadmissible hearsay. As a
    threshold matter, for purposes of opposing a special motion
    strike, Dr. Calvert was only required to show it was “reasonably
    possible” the letter would be admissible at trial under Evidence
    45
    2.       The litigation privilege does not protect Houston’s
    statements
    Section 47, subdivision (b), makes privileged any
    publication or broadcast that is made “[i]n any . . . judicial
    proceeding, [or] in any other official proceeding authorized by
    law . . . .” “The litigation privilege is also ‘relevant to the second
    step in the anti-SLAPP analysis in that it may present a
    substantive defense a plaintiff must overcome to demonstrate a
    probability of prevailing.” (Flatley v. Mauro (2006) 
    39 Cal.4th 299
    , 323; accord, Trinity Risk Management, LLC v. Simplified
    Labor Staffing Solutions, Inc. (2021) 
    59 Cal.App.5th 995
    , 1006
    (Trinity).) Thus, Dr. Calvert cannot establish a probability of
    prevailing if the litigation privilege precludes a finding of liability
    on the defamation claims based on Houston’s statements. The
    litigation privilege does not apply.
    Houston contends section 47, subdivision (b)’s litigation
    privilege protects his statements published in the reports because
    he is a “potential witness” in West’s lawsuit, citing Trinity, supra,
    59 Cal.App.5th at pages 1006 to 1007. Houston’s reliance on
    Trinity is misplaced. There, the Court of Appeal concluded
    prelitigation emails were protected because they were
    Code section 1280’s hearsay exception for official records.
    (Sweetwater, 
    supra,
     6 Cal.5th at p. 949.) But we need not reach
    whether the court properly considered the letter because
    Dr. Calvert carried his burden to show a probability he can
    produce clear and convincing evidence Houston acted with actual
    malice based on evidence Houston fabricated his allegation that
    Dr. Calvert threatened him.
    46
    “essentially . . . discovery request[s]” that were “made in
    preparation for or in anticipation of litigation,” which commenced
    less than two weeks after the emails were sent. (Trinity, at
    p. 1005.) By contrast, nowhere in the reports is Houston
    identified as a potential witness in West’s litigation, nor has
    Houston produced any evidence showing he was or will be a
    witness or otherwise involved in the litigation.
    3.     Houston’s remaining arguments fail
    Houston contends the trial court should have granted his
    special motion to strike three of the allegedly false statements
    identified in the complaint (in paragraphs 41, 42, and 54), which
    the Calvert plaintiffs conceded were not actionable but were
    included for context in support of their claims for relief. Houston
    argues it was error for the trial court to allow Dr. Calvert to
    withdraw or amend those statements. (See Simmons v. Allstate
    Ins. Co. (2001) 
    92 Cal.App.4th 1068
    , 1073 [Code of Civil
    Procedure section 425.16 does not allow a plaintiff to “amend[]
    the complaint once the court finds the requisite connection to
    First Amendment speech” to remove allegations of protected
    conduct.”].) However, the trial court did not allow Dr. Calvert to
    amend his complaint; rather, it denied Houston’s request to
    strike the three statements because they were nonactionable
    statements included only for context. This was proper. As
    discussed, allegations of protected activity that only provide
    context without supporting a claim for recovery cannot be
    47
    stricken. (Bonni, supra, 11 Cal.5th at p. 1012; Baral, supra, 1
    Cal.5th at p. 394.)15
    Finally, Houston argues the trial court erred in failing to
    strike paragraph 61 of the complaint, which alleges the May 13
    report “displayed photographs of Houston’s chest, calculated to
    convey and reinforce to viewers the false impression that
    Dr. Calvert had committed malpractice.” Houston broadly
    contends “[p]hotographs are not false statements of fact and
    cannot constitute defamation.” Houston has forfeited this
    argument by failing to support it with citation to relevant legal
    authority.16 (See Hernandez v. First Student, Inc. (2019)
    
    37 Cal.App.5th 270
    , 277 [“‘[T]o demonstrate error, an appellant
    must supply the reviewing court with some cogent argument
    15     The context allegations include the statements in the
    May 13 report that “‘Houston tells [KTTV] he also wanted a more
    masculine jawline, so he went to Dr. Calvert for jaw implants’”
    (complaint ¶ 41); Dr. Calvert told Houston that if he allowed
    Dr. Calvert to film the surgery, “‘there’s no charge’” (id. ¶ 42);
    and KTTV’s report that “‘five years later, Calvert’s former
    patients say, history is repeating itself’” (id. ¶ 54). Although not
    argued by Houston on appeal, the context allegations also include
    the statements in the May 13 report that Dr. Calvert reported “‘a
    box fell on Houston’s nose’” and caused an airway obstruction,
    and that Houston “‘went to Calvert for chest implants, which had
    to be revised twice, as well as a breast reduction and multiple
    liposuction surgeries.’” (Complaint ¶¶ 38, 60.)
    16    Houston only relies on the statement in our opinion in
    Jackson, supra, 10 Cal.App.5th at page 1261 that actionable
    defamation must imply a “‘“‘provably false assertion of fact.’”’”
    Jackson did not involve a defamation claim based on the
    publication of photographs, nor did we hold a defamation claim
    may never be based on publication of photographs.
    48
    supported by legal analysis and citation to the record.’”]; City of
    Santa Maria v. Adam (2012) 
    211 Cal.App.4th 266
    , 287 [“[W]e
    may disregard conclusory arguments that are not supported by
    pertinent legal authority or fail to disclose the reasoning by
    which the appellant reached the conclusions he wants us to
    adopt.”].)
    DISPOSITION
    The order denying the Fox defendants’ special motion to
    strike is reversed. The cause is remanded to the trial court with
    directions to vacate the order denying the Fox defendants’ special
    motion to strike and to enter a new order granting the motion.
    The order denying Houston’s special motion to strike is reversed
    as to the claims asserted by the professional corporation but
    affirmed as to the claims asserted by Dr. Calvert. On remand the
    trial court is to vacate the order denying Houston’s special motion
    to strike and to enter a new order granting Houston’s special
    motion to strike as to the professional corporation but denying
    the motion as to Dr. Calvert.
    The Fox defendants are to recover their costs on appeal.
    Houston and the Calvert plaintiffs are to bear their own costs on
    appeal.
    FEUER, J.
    We concur:
    PERLUSS, P. J.                 SEGAL, J.
    49