Olson v. George CA3 ( 2013 )

Filed 6/26/13 Olson v. George CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Siskiyou)
----
KIMBERLY R. OLSON, C069332
Plaintiff and Appellant, (Super. Ct. No.
SCSCCVPO101640)
v.
RAY GEORGE,
Defendant and Respondent.
Plaintiff Kimberly R. Olson appeals from a judgment of dismissal following
defendant Ray George’s successful motion to strike her complaint pursuant to Code of
Civil Procedure section 425.16 (unless otherwise stated, statutory references that follow
are to the Code of Civil Procedure), commonly referred to as an anti-SLAPP motion.
“SLAPP is an acronym for Strategic Lawsuit Against Public Participation.
SLAPP litigation, generally, is litigation without merit filed to dissuade or punish the
exercise of First Amendment rights of defendants. [Citations.]” (Lafayette Morehouse,
Inc. v. Chronicle Publishing Co. (1995) 37 Cal. App. 4th 855, 858.)
1
Olson contends the trial court erred when it granted George’s anti-SLAPP motion.
She also challenges the court’s denial of her motion for limited discovery and her request
for leave to amend the complaint. We affirm the judgment.
FACTS AND PROCEEDINGS
The town of Hornbrook is located in Siskiyou County. The Hornbrook
Community Services District (HCSD) is the public water district, serving approximately
140 users in the Hornbrook community. The HCSD’s board of directors (HCSD Board)
is comprised of five members appointed by the Siskiyou County Board of Supervisors.
Olson and George are members of the Hornbrook community. Both actively participate
in matters concerning the HCSD.
On May 24, 2010, Hornbrook resident Ron Cox submitted a letter to the Siskiyou
County Clerk stating his interest in appointment to a position on the HCSD.
On June 5, 2010, Olson submitted her letter of interest in the HCSD position to the
HCSD Board and the County Clerk.
In June and July, 2010, George circulated a petition to members of the Hornbrook
community encouraging appointment of Cox to the HCSD Board and discouraging
appointment of Olson. George also spoke to several community members asking if they
would sign the petition to show their support for Cox.
On August 10, 2010, the Board of Supervisors met in regular session and
appointed Cox to the HCSD Board.
In September 2010, George circulated another document entitled “Petition for
Removal of Larry Schultz both as Chairman and member of [HCSD]” (the Petition) to
members of the Hornbrook community. The Petition, directed to the Siskiyou Board of
Supervisors, sought removal of Schultz as chairman and member of the HCSD Board.
The Petition also made numerous references to Olson, alleging her negative influence
2
over Schultz, and urged that she not be appointed to the HCSD Board. Relevant portions
of the Petition are as follows:
“Larry Schultz is the current chairman of the [HCSD]. It seems everything he
does is at the instigation, request, and approval of . . . Olson and Peter Harrell. . . . These
two people have a record in this County of bringing lawsuits or threats of lawsuits against
anyone who does not act as they wish for whatever reasons. It is for this reason we are
not able to get people we trust to serve as members on the [HCSD] Board and for this
reason we cannot remove Mr. Schultz ourselves. When threats were made by the
[Olson/Harrell] team, Mr. Schultz not only participated in their harassment but failed to
intervene in his capacity as Chairman. In the past year four good HCSD Board members
have resigned because of those threats and because of badgering and harassment both by
him and the [Olson/Harrell] team. Many members of our community have been
frightened away from attending the HCSD meetings by the threat of lawsuits by these
two people. [¶] . . . [¶]
“. . . At the instigation of [Olson and Harrell], [Schultz] was verbally abusive to
our previous trusted bookkeeper Elsa, an employee for 12 years, and caused her
removal. . . . [¶] . . . Larry Schultz acts as the only person with authority on the entire
HCSD Board. He listens to no one except [Olson] and [Harrell]. . . . [¶] . . . [¶]
“. . . It is also very suspicious that [Olson] wrote an eloquent letter expressing
concerns over the mining company’s plan to the Siskiyou Public Health and Community
Development Department . . . . After that letter and the next HCSD Board meeting not
once did she ever bring it up again at a HCSD Board meeting.
“. . . In front of a witness, Larry Schultz stated he knew what the agenda of
[Olson] and [Harrell] is. He has never told the other HCSD Board [sic] what he
knows. . . .
“. . . A recent HCSD Board member negotiated the use of the local Grange Hall
for a public meeting place. . . . It was not done, and some time after the November
3
meeting the Grange requested the key to their building back as the insurance problem had
not been addressed and they did not intend to be sued by the [Olson] and Harrell
team. . . .[¶]
“. . . We expect [Olson] to again attempt to become an HCSD Board member. We
are asking you to please not affirm her. We do not trust her as her lack of action
concerning the mining operation and it’s [sic] impacts on our wells is suspicious. And
we do not want a person with the record she has of threatening or filing lawsuits all over
the County whenever she does not get her way. We do not want her to represent us. Her
presence on the HCSD [Board] would be sufficient to continue to scare our community
from involvement. [¶] We want our community back. We want to have people we can
trust and we want our people to be able to act in our best interests without constant threat
of lawsuits. Please help us attempt to regain control by removing Larry Schultz as both
as [sic] Chairman and a member of the HCSD Board and please do not approve [Olson]
as a HCSD Board member.”
George circulated the Petition door-to-door to a number of Hornbrook community
members, including Roger Gifford. George told Gifford that Cox had resigned and that
“they” wanted to keep Olson from getting an appointment to the HCSD Board. George
also told Gifford that Olson grew marijuana and “was selling [it] to kids,” that she was
suing the county, and that she “had made trouble for people in Hornbrook.”
On January 3, 2011, the Siskiyou Daily News printed an article discussing the
Petition, prompting the Siskiyou Board of Supervisors to place the matter on its agenda
for discussion. The Supervisors subsequently met and discussed matters raised in the
Petition.
Olson’s Complaint
On December 9, 2010, Olson filed a complaint against George and other
defendants (the Complaint) alleging slander, defamation, interference with contract, false
4
light, and intentional infliction of emotional distress, and seeking compensatory and
punitive damages. With few exceptions, the allegations supporting each cause of action
in the Complaint were identical, namely that, from September 8, 2010, through December
8, 2010, “[d]efendants did knowingly and maliciously make false statements concerning
Plaintiff, both verbally and in writing, such statements attributing criminal acts to
Plaintiff, and impinging her moral character. Said verbal and written statements were
circulated throughout the town of Hornbrook and surrounding area, and were calculated
to cause, and did cause, lasting emotional and psychological pain and distress to Plaintiff.
[¶] Defendants further conspired amongst themselves to create, circulate, and publish
these false statements to the public, and to the public record, all for the purpose of
denigrating Plaintiff in the eyes of the community, and to prevent her from seeking and
obtaining public office.” The first and second causes of action alleged the conduct was
“ongoing.”
Olson’s claim for exemplary damages against George alleged that “[t]he acts
complained of are ongoing, and are known to [George] not to be true,” and that George’s
purpose in making the false statements was “to harm [Olson], and [Olson’s] reputation,
and also to embarrass and intimidate her into declining to seek public office after having
submitted her letter of intent to do so.”
George’s Motion to Strike Portions of the Complaint
On January 6, 2011, George filed a motion to strike from the Complaint the word
“maliciously,” the claim for exemplary damages, and the prayer for punitive or
exemplary damages, arguing Olson failed to allege specific facts to demonstrate malice.
On January 11, 2011, Olson filed a subpoena requesting that George produce a
copy of the Petition. Olson argued there was good cause for the request because, among
other things, the documents evidenced defamation and malice by George as alleged in the
Complaint.
5
On January 27, 2011, Olson filed an opposition to George’s motion to strike. A
copy of the Petition was attached as an exhibit to the opposition.
On April 29, 2011, the trial court found there was an insufficient factual basis to
support the allegation of malice and issued an order granting the motion without leave to
amend, thereby striking the term “maliciously” from all causes of action and striking the
claim for exemplary damages. Olson filed a motion for reconsideration of the court’s
order.
Defendant’s Anti-SLAPP Motion
On February 8, 2011, George filed an anti-SLAPP motion. In support of the anti-
SLAPP motion, George filed several declarations, including his own, to which he
attached the Petition as an exhibit.
On February 18, 2011, Olson filed a motion for limited discovery as provided for
in the anti-SLAPP statute (§ 425.16, subd. (g)), seeking responses to 31 special
interrogatories. George opposed the motion.
On March 8, 2011, the trial court granted Olson’s discovery motion as to just one
of the requested interrogatories (Interrogatory No. 8). Interrogatory No. 8 sought
information to support George’s claim that he believed Schultz was “improperly running
the HCSD,” that Schultz “blindly relied on the direction and comments of [Olson] and
[Harrell], and that “[Olson] and [Harrell] were acting as de facto officers and directors of
HCSD.”
George propounded a response to Interrogatory No. 8 which stated, in part, that
George did not draft the Petition but he believed the statements therein to be true and
accurate based on “his personal observation of [Olson] and on general information
received from members of the Hornbrook community regarding actions and statements of
[Olson].” The trial court denied Olson’s motion to compel further responses.
6
On April 15, 2011, Olson filed her response to the anti-SLAPP motion, supported
by her own declaration and the declarations of Gifford, Harrell, and Schultz. Olson
denied the statements in the Petition and further denied that she had ever “sold or given
away any of [her] medical marijuana, or prescription medications to anyone.”
On July 18, 2011, the trial court issued its order granting George’s anti-SLAPP
motion. The court found the Petition “was circulated in a public forum about a topic of
public interest”--the performance of Schultz, a publicly appointed official, and his
removal from the HCSD Board. The court further found that the oral statements by
George to Gifford were “clearly associated with the Petition.” As such, the court
concluded, both were protected speech within the meaning of section 425.16. The court
found the Complaint did “not appear to be ‘legally sufficient’ because it fails to identify
the statements (or their gist) at issue,” but nonetheless addressed the substantive issues,
finding Olson was a limited public figure because “she voluntar[ily] injected herself into
the issues of the HCSD, the issues of the appointment to the HCSD were publicly
debated, and the alleged defamations were germane to the controversy.” The court
further found Olson had not made a threshold showing as to the probability of prevailing
on the issue of malice. Judgment was entered accordingly on August 3, 2011, rendering
moot Olson’s request for reconsideration of the order granting George’s earlier motion to
strike portions of the Complaint.
Olson timely appealed.
DISCUSSION
I
Legal Principles
“‘[S]ection 425.16 requires that a court engage in a two-step process when
determining whether a defendant’s anti-SLAPP motion should be granted. First, the
court decides whether the defendant has made a threshold showing that the challenged
7
cause of action is one ‘arising from’ protected activity. (§ 425.16, subd. (b)(1).)
[Second,] [i]f the court finds such a showing has been made, it then must consider
whether the plaintiff has demonstrated a probability of prevailing on the claim.
[Citation.]’ [Citation.]” (Mendoza v. Wichmann (2011) 194 Cal. App. 4th 1430, 1447; see
also Premier Med. Management Systems, Inc. v. California Ins. Guar. Assn. (2006) 136
Cal. App. 4th 464, 476.)
We review the trial court’s order granting the anti-SLAPP motion de novo.
(Cabrera v. Alam (2011) 197 Cal. App. 4th 1077, 1086.) “ ‘ “We consider ‘the pleadings,
and supporting and opposing affidavits . . . upon which the liability or defense is based.’
[Citation.] However, we neither ‘weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.’ [Citation.]” [Citation.]’ [Citation.] We further observe
that the anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)” (Ibid.; see,
also Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal. App. 4th 688, 699-
700.)
II
George Made a Threshold Showing that the Challenged Conduct
Underlying Olson’s Claims Arose From Protected Activity
A defendant moving to strike a complaint pursuant to section 425.16 must
demonstrate that the conduct complained of in the complaint arose from 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.’ ” (§ 425.16, subd. (e); see also
Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 820 (Wilcox), disapproved on other
grounds by Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58-67.)
The defendant may meet this burden by showing the conduct which forms the basis for
the plaintiff’s cause of action falls within one of the four categories of protected activity
8
set forth in section 425.16, subdivision (e) (hereafter, § 425.16(e)), including “(3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest.” (See Wilcox, at p. 820.)
In analyzing the first prong of an anti-SLAPP motion, the focus is on “the
substance of the plaintiff’s lawsuit.” (Peregrine Funding, Inc. v. Sheppard Mullin
Richter & Hampton LLP (2005) 133 Cal. App. 4th 658, 669–670.) “In the anti-SLAPP
context, the critical point is whether the plaintiff’s cause of action itself was based on an
act in furtherance of the defendant’s right of petition or free speech. [Citations.]” (City
of Cotati v. Cashman (2002) 29 Cal. 4th 69, 78.) Defendant need not establish that his
action is constitutionally protected; rather, he must make a prima facie showing that
plaintiff’s claim arises from an act taken to further defendant’s rights of petition or free
speech in connection with a public issue. (Paul for Council v. Hanyecz (2001) 85
Cal. App. 4th 1356, 1365; Macias v. Hartwell (1997) 55 Cal. App. 4th 669, 675 (Macias).)
A. Identification of Statements at Issue
As a preliminary matter, the Complaint does not specifically identify the
challenged statements, referring only generally to false statements made by George about
Olson, both verbally and in writing, attributing criminal acts to her and damaging her
moral character by circulating statements throughout the town of Hornbrook, and
publishing statements to the public for the purpose of denigrating her in the eyes of the
community and preventing her from seeking and obtaining public office.
Deficiencies in the Complaint notwithstanding, the parties and the trial court
proceeded on the premise that the challenged statements consist of written statements set
forth in the Petition and George’s verbal statements to Gifford as identified in Gifford’s
declaration, and we thus confine our review to those statements.
9
B. George Established the Statements Underlying Olson’s Claims Were Made in a
Public Forum for Purposes of Section 425.16(e)(3).
“A ‘public forum’ is traditionally defined as a place that is open to the public
where information is freely exchanged. [Citation.]” (Damon v. Ocean Hills Journalism
Club (2000) 85 Cal. App. 4th 468, 475 (Damon) [newsletter published by private
homeowners club and circulated to association members’ residents and neighboring
businesses is a public forum].) “Under its plain meaning, a public forum is not limited to
a physical setting, but also includes other forms of public communication.” (Id. at
p. 476.) The term “public forum” is subject to broad interpretation. (Seelig v. Infinity
Broadcasting Corp. (2002) 97 Cal. App. 4th 798, 807; ComputerXpress, Inc. v. Jackson
(2001) 93 Cal. App. 4th 993, 1006.)
In Matson v. Dvorak (1995) 40 Cal. App. 4th 539 (Matson), Concerned Citizens for
Responsible Leadership, a group funded by various persons and entities including Eugene
J. Dvorak, mailed campaign flyers to the homes of an unspecified number of voters
accusing candidate Paul Matson of having unpaid citations and fines. After losing the
election, Matson sued Dvorak and other defendants for claims including libel and
invasion of privacy. Dvorak filed an anti-SLAPP motion pursuant to section 425.16.
(Matson, at p. 543.) The trial court granted the motion. (Id. at p. 545.)
Matson appealed and this court affirmed, concluding the mailing of a campaign
flyer to an unspecified number of voters’ homes was an act in furtherance of the
defendant’s constitutional right of petition or free speech in connection with a public
issue for purposes of the anti-SLAPP statute. (Matson, supra, 40 Cal.App.4th at pp. 543,
548.)
The court in Macias, supra, 55 Cal. App. 4th 669, came to a similar conclusion.
There, the plaintiff filed a defamation action after the defendant distributed political
flyers to members of a union during the course of a campaign to elect union officers. (Id.
at pp. 671-672.) The trial court granted defendant’s anti-SLAPP motion. (Id. at p. 672.)
10
The court of appeal affirmed, finding campaign statements made during a union election
constituted a public issue because the statements affected 10,000 union members and
concerned the plaintiff’s qualifications to run for office, and that “[s]peech by mail, i.e.,
the mailing of a campaign flyer, is a recognized public forum under the SLAPP statute.”
(Id. at p. 674; see also id. at pp. 673-674.)
The same is true here, where George circulated the Petition “around town” and
door-to-door to “residences of community members,” discussing its contents and
collecting the signatures of more than 100 people from over 80 homes. “The [anti-
SLAPP] statute does not limit its application to certain types of petition activity. The
Legislature recognized that ‘all kinds of claims could achieve the objective of a SLAPP
suit--to interfere with and burden the defendant's exercise of his or her rights.’ ”
(Beilenson v. Superior Court (1996) 44 Cal. App. 4th 944, 949, quoting Church of
Scientology v. Wollersheim (1996) 42 Cal. App. 4th 628, 652.) Whether mailed or
circulated by hand, the result is the same--the dissemination of information to the homes
of those who may have an interest in that information. Many an idea has been exchanged
on a resident’s stoop about a candidate in an upcoming election or an agenda item at the
next city council meeting. “[A]s every person acquainted with political life knows, door
to door campaigning is one of the most accepted techniques of seeking popular
support . . . .” (Martin v. Struthers (1943) 319 U.S. 141, 146.) Thus, the statements at
issue here, including those spoken to Gifford during circulation of the Petition, were
made in a “public forum” for purposes of the anti-SLAPP statute.
C. George Established the Statements Were Made in Connection With an Issue of
Public Interest Within the Meaning of Section 425.16(e)(3).
“The right to speak on political matters is the quintessential subject of our
constitutional protections of the right of free speech. ‘Public discussion about the
qualifications of those who hold or who wish to hold positions of public trust presents the
11
strongest possible case for applications of the safeguards afforded by the First
Amendment.’ [Citation.] It is axiomatic that the qualifications of a declared candidate
for public office is a public issue.” (Matson, supra, 40 Cal.App.4th at p. 548.)
We first turn to the Petition, which accuses Olson of undue influence over Schultz
as president of the HCSD Board; having a record of suing or threatening to sue;
threatening to sue four HCSD Board members, causing them to resign; causing
community members to avoid board meetings for fear of being sued; instigating verbal
abuse by Schultz against the HCSD bookkeeper and causing her “removal” from that
position; and having written “an eloquent letter expressing concerns” over a proposed
mining operation but failing thereafter to bring the matter up to the HCSD Board. The
Petition also states that George and other community members “expect [Olson] to again
attempt to become an HCSD Board member” and asks that the Board of Supervisors
“please not affirm her” because they “do not trust her . . . [and] do not want a person with
the record she has of threatening or filing lawsuits all over the County whenever she does
not get her way. We do not want [Olson] to represent us. Her presence on the HCSD
would be sufficient to continue to scare our community from involvement.”
The statements in the Petition concern governance of the HCSD, Olson’s interest
in potential appointment to its Board, and her qualifications for that position, all issues of
interest to the Hornbrook community. In support of his anti-SLAPP motion, George
produced letters submitted by Olson and Cox regarding their interest in the vacancy on
the HCSD Board, letters of Hornbrook residents favoring Cox to fill that vacancy, the
Board of Supervisors’ agenda and its minutes appointing Cox to the HCSD Board, the
Petition itself (including pages containing the signatures of many Hornbrook residents),
copies of court records of cases involving Olson, and various news articles on
SiskiyouDaily.com and in the Siskiyou Daily News regarding issues related to the
Petition, the HCSD, and the Hornbrook water supply. These written statements concern
issues of public interest and are therefore protected under section 425.16(e)(3).
12
As for verbal statements by George, Gifford’s declaration twice states that George
made several comments about Olson “to induce me to sign [the Petition],” including that
Olson “was selling marijuana to kids, so she had to be kept off the water board.”
Gifford’s declaration makes plain that George’s statements concerned matters set forth in
the Petition and were designed to induce Gifford to sign the Petition to prevent Olson
from obtaining a seat on the HCSD Board. Accordingly, this conversation also is
protected under the anti-SLAPP statute. (See Macias, supra, 55 Cal.App.4th at p. 674
[Private conversations concerning a campaign flyer regarding a union election “would
also be protected”]; Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1117
[written and verbal comments concerning an official investigation were in furtherance of
right to petition government for grievances]; Wilcox, supra, 27 Cal.App.4th at pp. 821-
822 [statements exhorting shorthand reporters to contribute to cost of pursuing litigation
to challenge “direct contracting” were rationally connected to underlying judicial
challenge and hence protected under § 425.16]; Ludwig v. Superior Court (1995) 37
Cal. App. 4th 8, 18-20 [recruiting and encouraging others to speak out on matter of public
interest came within protection of § 425.16]; Averill v. Superior Court (1996) 42
Cal. App. 4th 1170, 1175-1176, [private conversations regarding petition to city council
and letter to local newspaper opposing proposed project to put shelter for battered women
in residential neighborhood are protected under the anti-SLAPP statute].) Having
concluded the statements were made in connection with an issue of public interest within
the meaning of section 425.16(e)(3), we need not consider Olson’s contention that the
statements are not protected under section 425.16(e)(4).
Olson also argues George failed to demonstrate the issues in the Petition were
under consideration by any public body or tribunal at the time of its circulation, and
likewise failed to offer evidence of public meetings, rallies, or other gatherings “or
legitimate petitioning activity” concerning the Petition prior to January 1, 2011, the date
she filed her Complaint. Again, while the issues raised in the Petition were not yet on the
13
Board of Supervisors’ agenda for discussion at the time the Petition was circulated, it is
clear that matters concerning governance of the HCSD, the Hornbrook water supply, and
Olson’s potential appointment to the HCSD Board were of interest to members of the
Hornbrook community, as evidenced by the significant number of signatures attached to
the Petition, as well as newspaper articles concerning those issues. Further, as the trial
court pointed out, issues raised in the Petition were eventually calendared and discussed
in early-January 2011.
Conceding that “operation of a water district . . . is undoubtedly an issue of public
interest when considered in the abstract,” Olson nonetheless argues the Petition attacks
her not as a sitting board member, but as a private citizen and customer of the water
district and is thus not a matter of public interest. We disagree. The statements regarding
Olson refer to her alleged influence over the president of the HCSD Board, as well as her
potential appointment to fill the vacancy left by the departure of Cox, and matters
impacting the Hornbrook water supply. These are matters of public interest to those
served by the HCSD.
Olson disputes the relevancy of her prior submission for the HCSD Board
position, and argues there was no evidence the challenged statements were connected to
an “ ‘ongoing controversy, dispute or discussion.’ ” (Hailstone v. Martinez (2008) 169
Cal. App. 4th 728, 738, quoting Du Charme v. International Brotherhood of Electrical
Workers (2003) 110 Cal. App. 4th 107, 118 (Du Charme).) However, whereas Hailstone
and Du Charme dealt with labor union activities or “ ‘private conduct that impacts a
broad segment of society and/or that affects a community in a manner similar to that of a
governmental entity’ ” (Du Charme, at p. 115), the Petition here deals with the
governance of the HCSD, a public agency, and its management of the Hornbrook water
supply and thus, by definition, involves a matter of public interest. (See Du Charme, at
p. 115; Damon, supra, 85 Cal.App.4th at p. 479; Macias, supra, 55 Cal.App.4th at
p. 674.)
14
Moreover, evidence presented by George demonstrates that a significant number
of Hornbrook community members were concerned about current and future issues
relating to governance of the HCSD Board, as well as Olson’s declaration of interest in a
position on the board, the Board of Supervisors’ subsequent appointment of another
candidate (Cox) to that position, Cox’s departure, and the potential that Olson would
again seek to fill the vacancy left by Cox. To that end, George’s statements to Gifford
concerned matters impacting Olson’s qualifications for that position. This type of public
discussion about Olson’s qualifications as a recent and potential contender for the Board
position “presents the strongest possible case for applications of the safeguards afforded
by the First Amendment.” (Matson, supra, 40 Cal.App.4th at p. 548, quoting Aisenson v.
American Broadcasting Co. (1990) 220 Cal. App. 3d 146, 154.) Having concluded the
challenged statements were made in connection with an issue of public interest within the
meaning of section 425.16(e)(3), we need not consider Olson’s argument that the Petition
was not “made in connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law” within the
meaning of section 425.16(e)(2).
On this record, we have no trouble concluding George made a prima facie
showing that Olson’s claims arose from his circulation of the Petition and concomitant
conversation with Gifford, both of which occurred in a public forum and related to issues
of public interest, and both of which were therefore actions taken to further his rights of
petition or free speech in connection with a public issue as outlined in section
425.16(e)(3). (Macias, supra, 55 Cal.App.4th at p. 675.)
III
Olson Failed to Make a Threshold Showing of a Probability of Prevailing on Her Claim
Having concluded that George made a prima facie showing that the challenged
statements arose from protected activity, we now must determine whether Olson
15
established a “probability” that she will prevail on the merits of her Complaint.
(§ 425.16, subd. (b).) To do so, Olson must demonstrate that her Complaint “is both
legally sufficient and supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited. [Citation.]
Whether [s]he has done so is a question of law, which we determine de novo.
[Citations.]” (Matson, supra, 40 Cal.App.4th at p. 548.)
As previously discussed, the Complaint fails to identify the allegedly defamatory
statements. Although a plaintiff claiming slander or libel need not plead the allegedly
defamatory statement verbatim, the statement must, at the very least, be specifically
identified. (Okun v. Superior Court (1981) 29 Cal. 3d 442, 458.) The same is true for a
claim of false light. (Briscoe v. Readers Digest Assoc. Inc. (1971) 4 Cal. 3d 529, 543,
overruled on other grounds in Gates v. Discovery Communications, Inc. (2004) 34
Cal. 4th 679, 685.) Hence, as the trial court noted, the Complaint does not appear to be
legally sufficient.
Apparently conceding the insufficiency of the Complaint, Olson argues the trial
court erred in denying her leave to amend to allege sufficient facts, namely the written
statements in the Petition and the verbal statements George made to Gifford. In that
regard, we note that our review of the trial court’s ruling on the anti-SLAPP motion
encompasses “ ‘the pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’ [Citation.]” (Cabrera v. Alam, supra, 197 Cal.App.4th at
p. 1086.) We therefore consider the Complaint in conjunction with, among other things,
the Petition and Gifford’s declaration.
A. Olson Was a Limited Public Figure
In order to determine whether Olson made a threshold showing of a probability of
prevailing on her claims, we must first determine her status, that is, whether she was a
16
public figure, a limited public figure, or a private figure. As we will explain, Olson was a
limited public figure.
“The United States Supreme Court has defined two categories of public figures for
First Amendment analysis. First, the ‘all purpose’ public figure who has ‘achiev[ed] such
pervasive fame or notoriety that he becomes a public figure for all purposes and in all
contexts.’ The second category is the ‘limited purpose’ or ‘vortex’ public figure, an
individual who ‘voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues.’ ”
(Mosesian v. McClatchy Newspapers (1991) 233 Cal. App. 3d 1685, 1689, quoting Gertz
v. Robert Welch, Inc. (1974) 418 U.S. 323, 351 [41 L. Ed. 2d 789, 812]; see also Cabrera
v. Alam, supra, 197 Cal.App.4th at p. 1091; Copp v. Paxton (1996) 45 Cal. App. 4th 829,
844 (Copp).)
In order to characterize a plaintiff as a limited purpose public figure, courts must
first find that there was a public controversy. (Copp, supra, 45 Cal.App.4th at p. 845.)
That is, “the issue was being debated publicly and . . . had foreseeable and substantial
ramifications for nonparticipants.” (Ibid.) Next, the court must find the plaintiff
undertook “ ‘some voluntary act through which [s]he seeks to influence the resolution of
the public issues involved.’ ” (Ibid., quoting Reader's Digest Assn. v. Superior Court
(1984) 37 Cal. 3d 244, 254, fn. omitted.) “ ‘Finally, the alleged defamation must have
been germane to the plaintiff's participation in the controversy.’ ” (Copp, supra, at p.
846.) With respect to the second element, “[i]t is not necessary to show that a plaintiff
actually achieves prominence in the public debate; it is sufficient that ‘[a plaintiff]
attempts to thrust [herself] into the public eye [citation] or to influence a public
decision.’ ” (Id. at pp. 845-846.)
We recognize, as did the trial court, that a defendant cannot, by his own conduct,
make the plaintiff a public figure. (Khawar v. Globe International, Inc. (1998) 19
Cal. 4th 254, 266.)
17
Here, there was a public controversy--governance of the HCSD, particularly the
manner in which the existing Board was managing the HCSD, the availability of a
position on the Board both prior to Cox’s appointment and after his departure soon
thereafter, and Olson’s interest in filling that vacancy--all of which had foreseeable and
substantial ramifications for the Hornbrook community members serviced by the HCSD.
The controversy was ongoing. Cox and Olson submitted their letters of interest in the
position in May and June, 2010, respectively. George circulated the first petition in June
or July, 2010, discouraging the Board of Supervisors from appointing Olson. The Board
of Supervisors did not fill the position until August 10, 2010, when it appointed Cox.
However, he quickly vacated the position, prompting George to begin circulating the
Petition in September 2010, again attempting to discourage the Board of Supervisors
from appointing Olson to fill the vacancy. This public issue was eventually introduced as
an agenda item at a meeting of the Board of Supervisors on January 4, 2011, with Olson
and Schultz participating in the discussions.
Olson voluntarily injected herself into the public controversy when she submitted
her name for consideration and thereby sought to influence matters related to the HCSD.
She was not appointed and therefore did not actually achieve prominence in that regard.
However, the person who was appointed, Cox, vacated the position approximately one
month later, and thus Olson’s previous interest in the position once again became
relevant, and she continued to be involved in issues related to the HCSD. Indeed, by her
own admission, she attended HCSD meetings “regularly” and filed a written opposition
to a potential mining operation threatening to impact the Hornbrook water supply. These
collective actions demonstrate Olson’s attempts to interject herself into, and have
influence over, public issues surrounding the HCSD.
The challenged statements were germane to Olson’s participation in the public
issues facing the HCSD. The Petition discussed Olson’s alleged influence over Schultz;
her litigiousness, both generally and against members of the HCSD Board in particular;
18
her behavior at Board meetings and its effect on members of the community; her
involvement in conduct related to the HCSD bookkeeper; and her failure to bring her
concerns over a proposed mining operation to the Board for discussion. The Petition
discussed George’s belief that Olson would again seek a seat on the HCSD Board, and
implored the Board of Supervisors not to appoint her to that position. Similarly, George
sought to induce Gifford to sign the Petition by telling him Olson sold marijuana to
children. George’s statements, both verbal and written, were germane to Olson’s
participation in the process of filling the vacancy on the Board, her qualifications to do
so, and her influence over governance of the HCSD.
Olson argues George impermissibly caused her to be a public figure by his own
conduct of “creating a document from nothing, presenting it to his select friends and
associates for signatures . . . and then presenting the document to a County supervisor a
month after he’d been sued.” Again, we disagree. As previously discussed, Olson
submitted her letter of interest in the Board position presumably to participate not only in
matters related to governance of the Board, but also in management of issues within the
Board’s jurisdiction such as proposed mining operations and other issues potentially
effecting the community’s water supply. While the position she expressed interest in was
initially filled when the Board of Supervisors appointed Cox, her initial interest in the
position was nonetheless relevant when, just one month later, the position was once again
vacant and George began circulating the Petition encouraging the Board of Supervisors to
remove Schultz as president and not to appoint Olson to fill any existing vacancy.
Citing Copp, supra, 45 Cal. App. 4th 829, Olson argues she cannot be characterized
as a public figure because she was never a candidate for public office and never availed
herself of the media or took steps to publicly counter the challenged statements. Copp,
however, does not require that a person present herself as a candidate for public office, or
that she utilize the media or publicly challenge the statements, only that she undertake
“ ‘some voluntary act through which [s]he seeks to influence the resolution of the public
19
issues involved.’ ” (Id. at p. 845; see also Gilbert v. Sykes (2007) 147 Cal. App. 4th 13,
24-26.) As previously discussed, Olson did just that when she submitted her letter of
interest in the vacant HCSD Board position and participated in HCSD meetings and
HCSD-related matters.
Olson was a limited public figure with respect to issues related to the governance
and activities of the HCSD Board and her potential appointment thereto.
B. Malice
A limited purpose public figure who sues for defamation must establish “a
probability that she will be able to produce clear and convincing evidence of actual
malice,” that is, that the allegedly defamatory statement was made “ ‘with knowledge that
it was false or with reckless disregard of whether it was false or not.’ ” (Annette F. v.
Sharon S. (2004) 119 Cal. App. 4th 1146, 1167 (Annette F.); see New York Times Co. v.
Sullivan (1964) 376 U.S. 254, 279-280; Copp, supra, 45 Cal.App.4th at p. 846.)
“The burden of proof by clear and convincing evidence ‘requires a finding of high
probability. The evidence must be so clear as to leave no substantial doubt. It must be
sufficiently strong to command the unhesitating assent of every reasonable mind.’ ”
(Copp, supra, 45 Cal.App.4th at p. 846.)
“The reckless disregard test requires a high degree of awareness of the probable
falsity of the defendant’s statement. ‘ “There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication.” ’ [Citations.] This is a subjective test, focused on the defendant’s attitude
toward the veracity of the published material, as opposed to his or her attitude toward the
plaintiff. [Citation.] [¶] Actual malice may be proved by circumstantial or direct
evidence. [Citation.] However, we will not infer actual malice solely from evidence of
ill will, personal spite or bad motive. [Citation.]” (Ampex Corp. v. Cargle (2005) 128
Cal. App. 4th 1569, 1579.)
20
“Gross or even extreme negligence will not suffice to establish actual malice; the
defendant must have made the statement with knowledge that the statement was false or
with ‘actual doubt concerning the truth of the publication.’ [Citation.]” (Annette F.,
supra, 119 Cal.App.4th at p. 1167.)
In opposition to the anti-SLAPP motion, Olson produced her own declaration, and
the declarations of Gifford, Schultz, Harrell, and William Eddy. Olson’s declaration
denies the truthfulness of much of the Petition’s content, as well as the statement George
made to Gifford. However, the declaration provides no evidence that George either knew
those statements to be false or entertained serious doubts as to their truthfulness.
The declarations of Gifford, Schultz, Harrell, and Eddy suffer the same infirmity.
All four declarants dispute, in some fashion or another, the challenged statements.
However, none focus on George’s attitude toward the truth of those statements,
commenting instead on his integrity or lack thereof. In fact, in one instance, Gifford
declares George confirmed that his source of information regarding a statement about
Harrell was “a Siskiyou County Sheriff’s deputy,” a comment which tends to show
George believed the statements he was making because those statements were the product
of a conversation with someone George viewed as a reputable source.
Olson argues that “George knew at least some of the statements contained in [the
Petition] were untrue, because he personally witnessed at least one of the events at issue.”
As support for that assertion, she cites nothing more than her own footnote contained in
the opening brief, a footnote which refers generally to her declaration and the
declarations of Harrell and Schultz. We reject contentions that are not supported by legal
or factual analysis. (People v. Turner (1994) 8 Cal. 4th 137, 214, fn. 19 [reviewing court
may disregard contentions not adequately briefed, e.g., claims perfunctorily asserted
without development]; In re Marriage of Nichols (1994) 27 Cal. App. 4th 661, 672-673,
fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal. App. 4th 974, 979.)
21
Olson failed to make a threshold showing of a probability of prevailing on her
claim.
IV
Asserted Errors by the Trial Court
Olson contends the trial court was laboring under a “fundamental unfamiliarity
with SLAPP litigation” and thus failed to properly analyze the pleadings. The court’s
lengthy and detailed order granting the anti-SLAPP motion suggests otherwise,
demonstrating a thoughtful, educated, and well-reasoned assessment of the facts and
evidence presented in this matter. In any event, we review the trial court’s ruling de novo
and thus need not discuss further the manner in which the court reached its decision, only
whether that decision was correct based on our independent assessment of the record.
We conclude that it was.
V
Limited Discovery Request
Olson assigns error to the trial court’s denial of all but one of the special
interrogatories proposed in her request for limited discovery filed pursuant to section
425.16, subdivision (g). She contends the trial court’s failure to grant her discovery
request in full prejudiced her “by denying her access to the only known source of the
information she needed to properly and fully rebut the baseless claims of George.” As
we will explain, there was no abuse of discretion.
In response to the anti-SLAPP motion, Olson filed a request for limited discovery
seeking responses to 31 special interrogatories. Olson argued the proposed discovery
was necessary to “help make my prima facie showing,” and because she had “no other
way to obtain the information sought.” She argued further that the proposed
interrogatories concerned “matters uniquely within the knowledge of [George].”
22
George opposed the discovery request, arguing it was impermissible and that
Olson failed to show good cause in that she failed to demonstrate the proposed discovery
was necessary to prove her prima facie case.
The trial court found as follows: “The prima facie case the Plaintiff is responsible
for showing in the context of the issue that is before the Court today, does include an
element of malice and that element of malice does specifically go to the defendant’s state
of mind.” The court granted Olson’s motion only as to Interrogatory No. 8, disallowing
the remaining proposed interrogatories “for the reasons set forth in the filed opposition.”
Section 425.16, subdivision (g) provides as follows: “All discovery proceedings
in the action shall be stayed upon the filing of a notice of motion made pursuant to this
section. The stay of discovery shall remain in effect until notice of entry of the order
ruling on the motion. The court, on noticed motion and for good cause shown, may order
that specified discovery be conducted notwithstanding this subdivision.”
“We review for abuse of discretion the trial court’s decision as to whether a
plaintiff has complied with the requirements of section 425.16, subdivision (g) to merit
discovery prior to a hearing on the motion to strike. [Citations.]” (Tuchscher
Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal. App. 4th
1219, 1247; see also 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal. App. 4th 568, 593.)
“ ‘Under this standard the reviewing court will not disturb the trial court’s decision unless
it “has exceeded the limits of legal discretion by making an arbitrary, capricious, or
patently absurd determination.” ’ (Mendoza v. Club Car, Inc. (2000) 81 Cal. App. 4th 287,
301.)” (Tuchscher Development Enterprises, at p. 1247.)
“A request for discovery in opposition to an anti-SLAPP motion should be
determined with reference to the issues raised in the motion. [Citation.]” (Carver v.
Bonds (2005) 135 Cal. App. 4th 328, 359.)
“Decisions that have considered what constitutes such a showing of good cause
have described it as a showing ‘that a defendant or witness possesses evidence needed by
23
plaintiff to establish a prima facie case.’ [Citation.] The showing should include some
explanation of ‘what additional facts [plaintiff] expects to uncover . . . .’ [Citations.]
Only in these circumstances is the discretion under section 425.16, subdivision (g) to be
‘liberally exercise[d].’ [Citation.]” (1-800 Contacts, Inc. v. Steinberg, supra, 107
Cal.App.4th at p. 593.)
Olson does not explain what additional facts she expected to uncover. Conceding
in her motion that many of the claims in George’s declaration “could be easily proved or
disproved as facts,” and submitting her own declaration together with the declarations of
Harrell and Schultz to do just that, Olson argued she was entitled to review “all of the
facts attendant to” the statements in George’s declaration without revealing what those
facts might be.
Similarly, Olson argues on appeal that, “given the specific nature of the
defamatory claims at issue, their vague nature, and complete lack of alleged dates, times,
places, specific acts, and involved individuals, Olson was in no position to obtain any
specific information relating to the claims made against her other than from George.”
Again, we are left to wonder what facts other than those rebutted by her supporting
declarations she expected to expose.
Further, the requested discovery is comprised almost entirely of interrogatories
which seek to challenge George’s declaration. For instance, 25 of the 31 interrogatories
identify a particular paragraph of George’s declaration and request information to
substantiate statements contained in that paragraph. “Discovery may not be obtained
merely to ‘test’ the opponent's declarations. [Citation.]” (1-800 Contacts, Inc. v.
Steinberg, supra, 107 Cal.App.4th at p. 593.)
In any event, the trial court, recognizing Olson’s prima facie showing would likely
include an element of malice, granted Olson’s request as to Interrogatory No. 8, which
states: “In reference to #12 of your declaration, state all facts upon which you relied for
your belief that the statements contained in the [Petition] were true and accurate. In
24
answering this interrogatory, if a fact is identifiable in reference to a particular
occurrence, place, time, and/or individual, give the specific identifying information
relating to the occurrence, place, time, and/or individual.” Given the parties’ concession
that the allegations in the Complaint refer to the written statements in the Petition and
George’s verbal statement to Gifford, Interrogatory No. 8 suffices for purposes of
discovering information to allow Olson to make a prima facie showing of malice.
On this record, we find no abuse of discretion in the trial court's decision to
disallow 30 of the 31 special interrogatories requested by Olson.
VI
Denial of Leave to Amend
Olson contends the trial court “evade[d] its responsibility to fully evaluate all of
the relevant facts” when it denied her request to amend the Complaint, both before and
after the filing of the anti-SLAPP motion. We disagree. The record makes clear that, in
spite of the deficiencies in the Complaint, the trial court carefully considered the Petition,
the statements by George to Gifford, and all other evidence presented at the hearing on
the anti-SLAPP motion. We took that evidence into account as well in our de novo
review here on appeal. The Complaint was treated as if it had in fact been amended to
include that evidence, and we therefore reject Olson’s claim.
25
DISPOSITION
The judgment is affirmed. Defendant George shall recover his costs on appeal.
(Cal. Rules of Court, rule 8.278(a).)
HULL , Acting P. J.
We concur:
BUTZ , J.
DUARTE , J.
26