Foley v. McElroy CA4/1 ( 2021 )

Filed 12/6/21 Foley v. McElroy CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
J. PATRICK FOLEY, D077299
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2019-
00048285-CU-DF-CTL)
ROBERT W. McELROY, et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of San Diego County,
Kenneth Medel, Judge. Affirmed.
Law Offices of Carleton L. Briggs and Carleton L. Briggs for Plaintiff
and Appellant.
Greene & Roberts, Maria C. Roberts, Lauren S. Cartwright; Niddrie
Addams Fuller Singh and Rupa G. Singh for Defendants and Respondents.
INTRODUCTION
J. Patrick Foley, a Roman Catholic priest, sued his diocese, the bishop,
and two diocese employees for libel and intentional infliction of emotional
distress after they answered media questions about a list of priests “credibly
accused” of child molestation. The trial court granted the defendants’ special
anti-SLAPP (strategic lawsuit against public participation) motion to strike
(Code Civ. Proc.,1 § 425.16) and dismissed the action. On appeal, Foley
contends the court erred in finding he failed to demonstrate a probability of
prevailing on his claims. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I.
The Parties
Foley is, and was at all times relevant to the underlying action, a
Roman Catholic priest. At one time he held an assignment within The
Roman Catholic Diocese of San Diego (diocese or Diocese of San Diego), an
ecclesiastical territory that includes San Diego County. 2 Defendants indicate
that Foley remains under the authority of the bishop of this diocese.
Robert W. McElroy has been the bishop of the Diocese of San Diego
since 2015. Rodrigo Valdivia and Kevin C. Eckery are both employees of The
1 All further unspecified statutory references are to the Code of Civil
Procedure.
2 “The Roman Catholic Diocese of San Diego” was named as a defendant
in the complaint. Defendants submitted evidence that the Diocese of San
Diego is not a legal entity but rather is a “canonical designation” that refers
to “apostolic activity . . . within the specific geographical territory under the
authority of the Office of the Bishop of San Diego.” Defendants further
established that the legal entity with authority to “hold the temporalities and
conduct the everyday business” of the Diocese of San Diego is “The Roman
Catholic Bishop of San Diego, a corporation sole.” As the distinction drawn
by Defendants is not material to the issues before us, and for the sake of
consistency with the complaint, we refer to the “diocese” or the “Diocese of
San Diego” within this opinion. By doing so, however, we do not mean to
signal disagreement with Defendants’ assertions.
2
Roman Catholic Bishop of San Diego (see footnote 2, ante). The Diocese of
San Diego, McElroy, Valdivia, and Eckery, were all named as defendants in
the underlying action brought by Foley (collectively, Defendants).
II.
Relevant Facts3
In 1990, Foley was an adjunct professor at the University of San Diego
(USD), which is within the Diocese of San Diego. On November 10, 1990, he
was summoned to a meeting by then Bishop Robert Brom. Bishop Brom
informed Foley that an adult male student had “voiced some concerns about
[Foley’s] professional behavior.” These concerns allegedly involved Foley
“touch[ing] one of his students inappropriately[.]”
Bishop Brom directed Foley to undergo an evaluation at a retreat house
that, according to Foley, turned out to be a state mental health facility. Foley
completed the evaluation and was “found to be mentally healthy and was
deemed capable of returning to work,” but afterward, Bishop Brom was
purportedly unwilling to give Foley an assignment in the Diocese of San
Diego.
In the summer of 1991, Foley accepted a position as a religious studies
teacher and chaplain at the Christian Brothers High School in Sacramento.
In 1995, he began a full-time ministry as an itinerant priest, “preaching
parish missions and directing retreats across the country.”
3 Our factual summary reflects the relevant standard of review, which is
de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269,
fn. 3 (Soukup).) “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.’ ” (Ibid.)
3
In June 2010, Bishop Brom informed Foley that a husband and wife in
Sacramento had lodged a complaint with the diocese “regarding [Foley’s]
conduct with their son at some uncertain time.” More specifically, according
to Foley’s complaint, the parents accused Foley of molesting their son in the
early 1990s, when their son was a teenager.
According to the allegations of the complaint, Bishop Brom “reacted to
the second accusation by ordering [Foley] to cease his priestly activities.”
Foley asserted in a declaration filed in the trial court that from June 2010
until December 2011, he was placed on administrative leave but was “not
canonically suspended.”
During this period of time, Bishop Brom convened a tribunal of three
priests who were canon lawyers, and Foley faced a canonical trial over the
parents’ accusation. According to the complaint, the tribunal interviewed the
alleged victim’s parents, but not the alleged victim. Foley was represented in
these proceedings by a canon lawyer who cross-examined the parents. Foley
alleges the tribunal found him “not guilty”—its specific verdict was “ ‘non
constat’ ”—and he thereafter resumed his ministry.
In 2015, after he was appointed bishop, McElroy stopped issuing letters
of good standing to Foley. These letters are “required under the Charter for
the Protection of Children which was adopted in the [Roman Catholic]
Church in the United States for a priest to function outside of his diocese.”
According to Foley, Bishop McElroy acknowledged this “would effectively
destroy [Foley’s] ministry.”
According to the complaint, on September 7, 2007, the Diocese of San
Diego agreed to pay $198.1 million to settle 144 claims of child sexual abuse
by clergy, purportedly the second largest settlement payment by a Roman
Catholic diocese in U.S. history. The complaint alleges that “[p]erpetrators,”
4
apparently meaning perpetrators named in claims resolved by this
settlement, “included 48 priests and one lay coordinator of altar boys.”
Although the allegations of the complaint are not clear, it appears a list of
these perpetrators was compiled.
In 2018, after a Pennsylvania grand jury publicly issued a report
finding that Pittsburgh-area priests had molested children, dioceses across
the United States started “publish[ing] lists of their priests who had sexually
abused minors, in order to promote transparency and public safety.” The
Diocese of San Diego “began a review of records of living and deceased priests
who had been accused of abuse of minors, but who had not yet been added to
the list of credibly accused priests that the Diocese created in 2007, to
determine if those priests were credibly accused and should be added to the
list.”
In September 2018, the Diocese of San Diego added eight names,
including Foley’s, to a “list of all priests of the diocese against whom there
were purportedly ‘credible allegations’ of child molestation.” 4
This development was the subject of two newspaper articles. The first
was published on September 13, 2018, in the San Diego Union-Tribune.
Photos of five priests, including Foley, were published alongside the article.
The article opened with these statements: “The clerical sexual abuse scandal
rocking the Roman Catholic Church hit home Thursday, as the Diocese of
San Diego added eight priests to the list of those believed to have molested
children. [¶] ‘This is a response to the terrible moment we are in,’ said
Bishop Robert McElroy, citing a recent Pennsylvania grand jury report that
found 1,000 children had been molested by Pittsburgh area priests there, and
4 The list itself was not put in evidence.
5
the resignation of Theodore McCarrick, who is accused of sexually assaulting
altar boys, seminarians and priests. [¶] ‘The cascade of emotions that this
causes the survivors of the abuse as well as other people in the pews, has
caused a tumult of anger, grief, upset, incomprehension, disillusionment,’
McElroy said.”
After identifying the eight priests whose names were added to the list,
the article continued, “Thursday’s announcement was prompted by the
Pennsylvania grand jury report, the McCarrick case and other recent
revelations that have called into question the church’s moral authority and
its willingness to honestly address this scandal. [¶] ‘There is a broad call for
transparency,’ McElroy said. ‘When we looked at it, we wanted to meet that
as best we could.’ ”
The article quoted victim advocates’ opinions about the revelation of
additional accused predators. It reported that McElroy would be embarking
on a “ ‘listening tour’ ” of the diocese, and quoted McElroy as saying, “ ‘I’ve
met with a number of victims. . . . They are looking for – they are really
looking for the perpetrator to say it to them, but often the perpetrator is dead
– so they are looking for the church to say we are truly sorry for this.’ ”
The article then gave a short summary of the allegations against each
of the eight priests. As to Foley, the article stated, “[i]n 2010, [Foley] was
suspended from ministry pending a church trial on charges that he had
abused two Sacramento-area boys, whose parents had been friends of the
priest. [¶] The canonical trial ended in January 2011 without a clear verdict.
‘He wasn’t guilty,’ said Rodrigo Valdivia, the San Diego diocese’s vice-
moderator of the curia, ‘but that’s not to say he was innocent.’ His priestly
faculties were restored until McElroy removed them in August 2015.”
6
The article then quoted the opinions of various individuals about the
newly disclosed allegations, and in closing noted that McElroy “argued that
new measures taken by the diocese . . . have been effective” and said in his
time as bishop the diocese had not had “ ‘a live case of a priest abusing
minors.’ ”
The second article was published on September 16, 2018, in the San
Jose Mercury News. It reported that “Catholic church leaders” had “taken
the extraordinary step of promising to bare some of their darkest secrets by
revealing previously undisclosed names of priests credibly accused of sexual
abuse.” This article focused on what it called the “disturbing fact” that Foley,
an “itinerant Roman Catholic priest who holds Bay Area retreats,” was one of
those “identified as having been the subject of previously undisclosed
accusations of sexual abuse.” It stated: “The Rev. J. Patrick Foley, who held
retreats in Soquel and Danville this year . . . faced a church tribunal after a
couple in the Sacramento area accused him in 2010 of sexually molesting
their boys, said San Diego diocese spokesman Keven C. Eckery. The tribunal
was inconclusive, he said, and although church officials also alerted local
police, nothing ever came of it. But the diocese in 2015 stripped him of his
priestly faculties. [¶] ‘When he couldn’t be judged guilty in trial, it just
complicated things with how to deal with him,’ Eckery said.”
The article attributed several other statements to Eckery, including:
“Eckery said Foley was accused in Sacramento of molesting two children of a
couple who had been his friends, but their boys did not testify at the church
tribunal. . . . [¶] ‘It wasn’t just a closed church thing,’ Eckery said. ‘Both
dioceses cooperated with police to make sure the family got justice.’ ” Eckery
also was reported as having said Foley was stripped of his priestly faculties
in August 2015 at the direction of the new bishop.
7
III.
Trial Court Proceedings
A. The Complaint
On September 12, 2019, Foley sued McElroy, Valdivia, Eckery, and the
Diocese of San Diego. His complaint alleged two causes of action: a first
cause of action for “Defamation (Libel),” and a second cause of action for
intentional infliction of emotional distress.
In a series of common allegations, the complaint gave a short factual
account of the 1990 and 2010 accusations against Foley, the tribunal
convened by Bishop Brom, and the “tribunal’s final decision . . . that [Foley]
was not guilty of any wrongdoing[.]” The complaint alleged: “On September
7, 2007, the Diocese had agreed to pay $198.1 million to settle 144 claims of
child sexual abuse by clergy. . . . Perpetrators included 48 priests and one lay
coordinator of altar boys. In September 2018, eight more priests were added
to this list, as well, including plaintiff. This was the subject of newspaper
articles published on September 13, 2018 and on September 16, 2018[.]”
Printouts of the articles from the internet editions of the San Diego Union-
Tribune and the San Jose Mercury News were attached as exhibits and
incorporated in the complaint by reference.
Under the heading “First Cause of Action [¶] Defamation (Libel),” Foley
alleged that “[t]he September 13, 2018 and September 16, 2018 publications
were made of and concerning the plaintiff and were so understood by those
who read the publications,” and that “[e]ach publication is false as it pertains
to the plaintiff, and . . . made with the intent to harm plaintiff’s personal
reputation.” He further alleged: “Each publication is libel per se, that is,
libelous on its face. It states directly or by implication, without further
explanation, that plaintiff is a dangerous, possibly criminal, person. Each
publication exposes plaintiff to hatred, contempt, ridicule, and humiliation.
8
Communications to the press here were not made in connection with any
ministerial or ecclesiastical matter, involved no proper function of the Church
or its ministries, nor were they in furtherance of any ministerial objective or
made to participants in any ministerial function. [¶] . . . The publications
were seen or read on September 13, 2018 and September 16, 2018,
respectively, and thereafter, by an unknown number of persons.” Foley
further alleged that “[e]ach publication” was unprivileged and proximately
resulted in his loss of reputation and emotional harm.
The complaint’s second cause of action for intentional infliction of
emotional distress was based on Defendants’ alleged defamation of Foley. In
support of this cause of action, Foley alleged, in pertinent part, that
“Defendants’ conduct in publishing the false and defamatory material about
plaintiff was intentional and malicious and done for the purpose of causing
plaintiff to suffer . . . emotional and physical distress.”
Based on these two causes of action, Foley sought recovery of general,
special, and presumed damages.
B. Defendants’ Anti-SLAPP Motion to Strike the Complaint
On November 4, 2019, Defendants filed a special anti-SLAPP motion to
strike Foley’s complaint. They argued it was a “quintessential” SLAPP suit
brought to hinder their exercise of their right of free speech on a matter of
“profound public interest – the protection and safety of children and the
public,” activities they argued were protected under section 425.16,
subdivisions (e)(3) and (e)(4).
Defendants offered a number of reasons why Foley would be unable to
meet his burden of establishing that his claims had at least minimal merit.
They argued his cause of action for “Defamation (Libel)” failed to allege any
false written statement made by any defendant, and that the only
publications identified as libelous were the two news articles published by
9
the San Diego Union Tribune and the San Jose Mercury News, not by
Defendants. They further argued the statements attributed to them in the
articles had been communicated verbally, not in writing, and could not
support a cause of action for libel, which requires a written publication.
Defendants further asserted the burden of proving falsity falls on the
plaintiff where the statements relate to a matter of public concern, and that
Foley would be unable to prove the statements attributed to them in the
articles were false because their statements were substantially true. Finally,
they argued their communications with the media were protected by the
common interest privilege, Civil Code section 47, subdivision (c), 5 and barred
by the ministerial exception.6 They argued Foley’s claim for intentional
5 Civil Code section 47 provides in pertinent part that a publication or
broadcast is privileged if made: “(c) In a communication, without malice, to a
person interested therein, (1) by one who is also interested, or (2) by one who
stands in such a relation to the person interested as to afford a reasonable
ground for supposing the motive for the communication to be innocent, or (3)
who is requested by the person interested to give the information.”
6 The ministerial exception arises from the principle that “[i]n our
society, jealous as it is of separation of church and state, one who enters the
clergy forfeits the protection of the civil authorities in terms of job rights.”
(Higgins v. Maher (1989) 210 Cal.App.3d 1168, 1175.) It is a
“ ‘constitutionally compelled’ ” doctrine that “protects religious organizations
from the normally attendant adverse consequences of employment
discrimination.” (Henry v. Red Hill Evangelical Lutheran Church of Tustin
(2011) 201 Cal.App.4th 1041, 1053; see Hosanna-Tabor Evangelical Lutheran
Church & School v. EEOC (2012) 565 U.S. 171, 188–189, 195.) It operates to
preclude wrongful termination claims as well as “ ‘otherwise actionable
claims of defamation . . . when based on statements “related to the hiring,
firing, discipline or administration of clergy.” ’ ” (Gunn v. Mariners Church,
Inc. (2008) 167 Cal.App.4th 206, 217.) Although Defendants argued in part
that the ministerial exception operates as a limit on the superior court’s
jurisdiction, it is more appropriately characterized as an affirmative defense.
(See Sumner v. Simpson University (2018) 27 Cal.App.5th 577, 596, fn. 4.)
10
infliction of emotional distress was derivative of his defamation claim and
was likewise deficient.
In support of their motion, Defendants submitted declarations of
McElroy, Valdivia, and Eckery. Relevant here, McElroy averred that in 2010,
a Sacramento couple informed the diocese “that their adult son reported
being touched inappropriately by Father Foley when their son was a
teenager.” He asserted that Foley had faced a canonical trial over this
accusation, and “[a]t the conclusion of the trial, the Tribunal hearing the case
found the evidence inconclusive and did not find against Father Foley on the
charges against him. The effect of the inconclusive findings was that Father
Foley was neither exonerated, nor convicted of the charges.”
McElroy averred that in 2018, many dioceses in the United States had
published lists of their priests who had sexually abused minors “to promote
transparency and public safety.” In September 2018, the Diocese of San
Diego similarly “published an updated list of all priests of the diocese who
had been credibly accused of sexually abusing a minor.” Foley’s name was
among those added to the list. McElroy stated he was questioned verbally
about this development by a reporter with the San Diego Union Tribune and
had provided truthful responses that reflected his “concerns and opinions
about the problems that have plagued the Church in recent years.” McElroy
further averred his statements “were given for the purpose of truthfully
describing actions being taken by the Diocese of San Diego to promote
transparency and public safety, including the safety of children.”
11
Valdivia holds a post-graduate degree in Canon Law from Catholic
University and is an advisor to the bishop on matters of canon law. 7 He
averred, among other things, that in 2010, “we received a complaint made by
a couple located in Sacramento, who reported that their adult son advised
them he had been inappropriately touched by Father Foley . . . when he was a
teenager.” Following a canonical trial, “the Judicial Vicar hearing the case
found the evidence inconclusive and did not find against Father Foley. The
effect of the inconclusive findings was that F[ather] Foley was neither
exonerated, nor convicted of the charges against him.”
Valdivia further stated that in September 2018, following a “review of
prior accusations made, including accusations . . . against Father Foley,” “the
names of 8 priests were added to the existing list of priests in the Diocese
who had been credibly accused of abusing minors.” Valdivia responded to
questions about this development from a reporter with the San Diego Union
Tribune. He asserted that his responses were truthful, were communicated
verbally, and were “made in an effort to promote transparency and public
safety, especially that of children.”
Eckery averred that “following the release of a very public
Pennsylvania Grand Jury Report,” the diocese “began a review of records of
living and deceased priests who had been accused of abuse of minors[.]”
Following this review, the diocese added the names of several priests,
including Foley, to “its list of priests who had been credibly accused of
abusing minors.” Eckery, who is responsible for communications and public
7 Valdivia explained that “[t]he canons of the Catholic Church are
generally the laws and legal principles made and enforced by the authorities
of the Church to regulate its external organization and government and to
order and direct the activities of Catholics toward the mission of the Church.”
12
affairs on behalf of the diocese, was contacted by a reporter from the San Jose
Mercury News about a week after the list was updated. Eckery
communicated with the reporter verbally, gave responses that were “truthful
based on information available to [him],” and communicated with the
reporter in the interest of “promoting transparency and . . . public safety,
including the safety of children.”
C. Foley’s Opposition to the Anti-SLAPP Motion
In opposition to Defendants’ motion, Foley conceded that his claims
arose from Defendants’ protected speech activities, such that the first anti-
SLAPP prong was met. He argued, however, that he could establish a
probability of prevailing on his claims.
Foley asserted, among other things, that he had stated a legally
sufficient cause of action for libel against the Defendants because, so he
claimed, “the Complaint alleges that the list of ‘Credible Allegations – Priests
of the Diocese of San Diego’ posted on a public website and provided to the
press was itself defamatory” and that “[t]he list was written and the contents
of it were then republished.” He argued that “placing [his] name on the list”
was defamatory in that it was “a provably false factual assertion.” He
maintained that the “falsity” of adding his name to the list was demonstrated
by the tribunal verdict of “ ‘non constat,’ ” which he argued was akin to an
exoneration. He also took issue with Defendants’ reliance on the common
interest privilege and ministerial exception.
The only evidence Foley offered in opposition to the anti-SLAPP motion
was his own declaration, which contained 13 paragraphs of text and had no
attached exhibits. In this declaration, Foley asserted that in 1990, a male
student at USD had “voiced some concerns about my professional behavior,”
and in 2010, a husband and wife from Sacramento “lodged a complaint
regarding my conduct with their son[.]” He did not specify the nature of the
13
alleged misconduct, nor did he state he had been falsely accused or otherwise
assert his innocence of the allegations against him.
Paragraphs 5 and 6 of Foley’s declaration were the only paragraphs of
his declaration in which he addressed either the credibility of the accusations
against him, or the tribunal and its verdict. Paragraph 5 stated:
“During the time I was on administrative leave [from June 2010
to December 2011], a tribunal of canon lawyers examined the
2010 complaint. I was represented by a canon lawyer who cross-
examined the parents who made the Complaint. The testimony
of the couple was rejected by the tribunal as not credible because
they gave conflicting accounts of the alleged incident. The son
who was the alleged victim refused to have anything to do with
the canonical trial. The parents had a dozen other lawsuits
against other businesses and individuals at the time. Ultimately,
the tribunal reached a verdict of ‘non constat,’ meaning the
allegations under review had not been proven. ‘Non constat’
literally means ‘it is not established’ or ‘it is not agreed’ and is the
equivalent to a verdict of ‘not guilty’ in the American justice
system.”
In paragraph 6, Foley stated: “The Sacramento Police Department
conducted its own investigation in the early months of the tribunal’s
investigation, but took no action. After the tribunal’s investigation was
concluded and the ‘not guilty’ verdict validated by Rome, no civil, criminal or
canonical action was taken against me.”
In the remainder of his declaration, Foley conveyed his belief that
Bishop Brom and Bishop McElroy had taken actions that showed they
harbored a vendetta against him, and he described the difficulties he
experienced after the diocese added his name to the list of credibly accused
priests.8
8 The copy of Foley’s declaration in the record on appeal is unsigned.
There appear to be large blank areas overlaying the date and signature
portions of the declaration, suggesting something about the duplication or
14
D. Defendants’ Reply to Foley’s Opposition
Defendants filed evidentiary objections to Foley’s declaration. They
divided his declaration into 14 sections of text and asserted between three
and six objections to each section. Relevant here, they argued that paragraph
5 was inadmissible because Foley’s assertions lacked foundation, were based
on hearsay, contained improper lay opinion, were irrelevant, speculative,
and/or violated the so-called best evidence rule. They asserted that
paragraph 6 was inadmissible because it lacked foundation, contained
hearsay and improper expert opinion testimony, and was irrelevant.
Concurrently with their reply, Defendants also filed a supplemental
declaration of Valdivia. Foley objected to the court’s consideration of the
supplemental declaration, arguing it was new evidence improperly submitted
in reply.9
transmission of the document may have affected these parts of the signature
page. Since the lack of a signature was not raised as an issue during the trial
court proceedings or on appeal, we assume the original was signed and that
the apparent lack of signature on our copy is due to a duplication error.
9 The trial court overruled this objection. On appeal, Foley argues the
trial court abused its discretion because new evidence generally cannot be
submitted with reply papers unless it is offered to clarify an ambiguity or fill
a gap created by the opposition. (See Jay v. Mahaffery (2013) 218
Cal.App.4th 1522, 1537 (Jay); see also Park v. First American Title Co. (2011)
201 Cal.App.4th 1418, 1427 (Park) [trial court’s evidentiary ruling is
reviewed for an abuse of discretion].) Although this case is not as extreme as
Jay, in which the defendants waited until their reply to file any evidence, we
agree the evidence submitted with Valdivia’s supplemental declaration was
not a gap filler or strictly responsive to an ambiguity created by Foley’s
opposition. Rather, it provided additional evidence of the tribunal verdict, a
topic Valdivia addressed in his moving declaration. Defendants reasonably
could have anticipated the need for this evidence at the time they filed their
moving papers. We agree it should have been excluded and, therefore, we do
not consider this evidence.
15
E. Trial Court Ruling Granting Defendants’ Anti-SLAPP Motion
Prior to the hearing on the anti-SLAPP motion, the trial court issued a
tentative ruling announcing its intent to grant the motion. At the start of the
hearing, the court explained that its tentative was based on “the provability
of the case . . . your primary cause of action is libel, and . . . most of the things
either involve opinion or truthful accounting of what occurred.” After hearing
arguments from counsel, the court confirmed its tentative ruling,
emphasizing the lack of evidence “that false statements were made” and
concluding that Defendants’ statements were either opinions or “recitations
of what happened in certain procedures that [Foley] may not have liked . . .
but that doesn’t amount to defamation[.]”
In a minute order issued after the hearing, the court sustained several
of Defendants’ objections to Foley’s declaration, as a result of which several
paragraphs, including paragraphs 5 and 6, were ruled inadmissible. The
court overruled all other objections. The court granted the anti-SLAPP
motion and found that “[t]he challenged action arises from speech on matters
of public interest” and that Foley had not met his burden to show he had a
probability of prevailing “on the claim [sic].” On January 16, 2020, the trial
court entered judgment in favor of Defendants. On February 13, 2020, Foley
filed a notice of appeal.10
10 An order granting or denying an anti-SLAPP motion is independently
appealable (§§ 425.16, subd. (i), 904.1, subd. (a)(13)), and thus “we are
foreclosed from reviewing that order on appeal from the judgment.”
(Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) In
his notice of appeal, Foley stated he was appealing from the “judgment or
order” entered on January 16, 2020, the date the trial court entered
judgment, and he attached a copy of the judgment, but not the order, to the
notice. However, we must construe a notice of appeal liberally. (Cal. Rules of
Court, rule 8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59 [“notices of
appeal are to be liberally construed so as to protect the right of appeal if it is
16
DISCUSSION
Foley contends the trial court erred by granting Defendants’ anti-
SLAPP motion. He does not dispute that Defendants met their initial burden
of demonstrating that his action arises from their protected speech activities.
He argues, however, that he met his second-prong burden of showing a
probability of prevailing on his claims. We disagree and affirm.
I.
Relevant Legal Principles
“A SLAPP suit, or a strategic lawsuit against public participation, is
one that seeks to chill a party’s valid exercise of constitutional rights to free
speech and to petition for redress.” (Citizens of Humanity, LLC v. Hass
(2020) 46 Cal.App.5th 589, 597.) Section 425.16, the anti-SLAPP statute,
provides in pertinent part: “A cause of action against a person arising from
any act of that person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion to strike,
unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16, subd.
(b)(1).) The anti-SLAPP law “provides a procedure for weeding out, at an
early stage, meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
reasonably clear what appellant was trying to appeal from, and where the
respondent could not possibly have been misled or prejudiced”].) It is
reasonably clear that Foley intended to appeal the order granting
Defendants’ anti-SLAPP motion, and the appeal would have been timely as to
that order. Accordingly, we construe the appeal as properly brought from the
order granting the anti-SLAPP motion.
17
An anti-SLAPP motion is evaluated in two steps. “At the first step, the
moving defendant bears the burden of identifying all allegations of protected
activity, and the claims for relief supported by them. . . . If the court
determines that relief is sought based on allegations arising from activity
protected by the statute, the second step is reached. There, the burden shifts
to the plaintiff to demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. The court, without
resolving evidentiary conflicts, must determine whether the plaintiff’s
showing, if accepted by the trier of fact, would be sufficient to sustain a
favorable judgment. If not, the claim is stricken. Allegations 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.” (Baral, supra, 1 Cal.5th at p. 396.)
II.
Foley Concedes Defendants Met Their Initial Burden and Seeks Review Only
of the Determination That He Failed to Meet His Burden to Successfully
Resist the Anti-SLAPP Motion
To meet its threshold burden, the moving defendant need only establish
that the claims against it arise from speech activities that fall within “one of
the categories listed in section 425.16, subdivision (e).” (Medical Marijuana,
Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 882 (Medical Marijuana).)
In the trial court, Defendants argued Foley’s action arose from their
communications with the press about the updated list of credibly-accused
priests, which they asserted were speech activities concerning a matter of
public interest such that they were protected under subdivisions (e)(3) or
(e)(4) of section 425.16. (See § 425.16, subds. (e)(3) [protecting “any written
or oral statement or writing made in a place open to the public or a public
18
forum in connection with an issue of public interest”], (e)(4) [protecting “any
other conduct in furtherance of the exercise of the constitutional right of
petition or the constitutional right of free speech in connection with a public
issue or an issue of public interest”].) Foley conceded the issue, and the trial
court ruled “[t]he challenged action arises from speech on matters of public
interest.”
As noted, Foley does not challenge this determination on appeal. We
agree with the court’s resolution of this issue, which is supported by case law.
(See, e.g., Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534,
1548–1551 [defendants’ communications relating to “protection of children in
church youth programs” from molestation or other inappropriate
relationships initiated by adult church leaders were communications about
matters of public significance by section 425.16, subdivision (e)(4)].)
Thus, this appeal only requires us to decide whether the trial court
reached the correct result at the second step of the anti-SLAPP analysis. At
this step, the burden shifts to the plaintiff to demonstrate “there is a
probability that the plaintiff will prevail on the claim.” (§ 425.16, subd.
(b)(1).) This is a “ ‘summary-judgment-like procedure.’ ” (Baral, supra, 1
Cal.5th at p. 384; see College Hospital, Inc. v. Superior Court (1994) 8 Cal.
4th 704, 718–719 [section 425.16 and similar motions operate “like a
demurrer or motion for summary judgment in ‘reverse’ ”].) “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.”
(Baral, at pp. 384–385.) “ ‘[C]laims with the requisite minimal merit may
proceed.’ ” (Id. at p. 385.)
19
We evaluate the trial court’s resolution of this issue de novo. (Soukup,
supra, 39 Cal.4th at p. 269, fn. 3 [“Review of an order granting or denying a
motion to strike under section 425.16 is de novo.”].) We review the trial
court’s decision, not its rationale. If the court’s order “is correct on any theory
applicable to the case, we may affirm the order regardless of the correctness
of the grounds on which the lower court reached its conclusion.” (City of
Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1307.)
III.
Foley Fails to Establish That His Libel Claim Is Both Legally Sufficient and
Factually Substantiated
On our de novo review, we conclude Foley fails to meet his second-step
burden of establishing a legally sufficient and factually substantiated libel
claim.
A. Foley Fails to Demonstrate That His Allegations of Libel Were
Sufficient
1. Relevant Legal Principles
The requirement of legal sufficiency necessitates a properly-pled claim.
“If the pleadings are not adequate to support a cause of action, the plaintiff
has failed to carry his burden in resisting the motion.” (Gilbert v. Sykes
(2007) 147 Cal.App.4th 13, 31 (Gilbert), citing Vogel v. Felice (2005) 127
Cal.App.4th 1006, 1018–1019 (Vogel).) Moreover, “ ‘[a] plaintiff cannot avoid
[an anti-]SLAPP motion by amending the complaint.’ ” (Jackson v.
Mayweather (2017) 10 Cal.App.5th 1240, 1263.) Nor will a court of review
indulge unsupported interpretations of the complaint and thereby effectively
“redraft[ ] . . . [the] complaint in order to read that document as alleging
conduct . . . that has not in fact been specifically alleged[.]” (Medical
Marijuana, supra, 46 Cal.App.5th at p. 883.) Rather, “[w]e must take the
20
complaint as it is.” (Premier Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 476.)
Defamation occurs either through libel or slander. (Civ. Code, § 44.)
“ ‘The elements of a defamation claim are (1) a publication that is (2) false, (3)
defamatory, (4) unprivileged, and (5) has a natural tendency to injure or
causes special damage.’ ” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th
1300, 1312.) Libel is defamation based on a publication in writing or other
fixed, visible representation. (Civ. Code, § 45; see Medical Marijuana, supra,
46 Cal.App.5th at p. 884.) Slander is defamation based on an oral utterance.
(Civ. Code, § 46.)
Both libel and slander have special pleading requirements. Because
defamation “is not committed unless the defamatory matter is ‘published’ or
communicated to a third person[,] . . . publication must be pleaded.” (5
Witkin Cal. Procedure (5th ed. 2008) Pleading, § 740, p. 160.) Further,
“ ‘[t]he general rule is that the words constituting an alleged libel must be
specifically identified, if not pleaded verbatim, in the complaint.’ ” (Medical
Marijuana, supra, 46 Cal.App.5th at p. 884, quoting Kahn v. Bower (1991)
232 Cal.App.3d 1599, 1612, fn. 5 (Kahn).) The pleading requirements for
slander are less strict, but even when pleading slander, “the substance of the
defamatory statement” must be alleged. (Okun v. Superior Court (1981) 29
Cal.3d 442, 458 (Okun).) No matter the theory of defamation, the complaint
must be alleged with sufficient certainty to “ ‘acquaint [the] defendant with
what he must defend against.’ ” (Medical Marijuana, at p. 894, quoting
Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832–833; see also Okun, at
p. 458 [discussing pleading requirements for slander; stating the complaint
must “give[ ] notice of the issues sufficient to enable preparation of a
defense”].)
21
2. Analysis
Defendants argued in the trial court that the complaint was insufficient
because it alleged no libelous statements by them at all, much less the
required verbatim recitation. They further argued that the only publications
it identified as defamatory were the two news articles, which were plainly
published by the San Diego Union Tribune and the San Jose Mercury News,
not by them.
In response, Foley asserted “the Complaint alleges that the list of
‘Credible Allegations – Priests of the Diocese of San Diego’ posted on a public
website and provided to the press was itself defamatory. The list was written
and the contents of it were then republished.” There is no other way to put it:
this was a mischaracterization of the complaint. The complaint’s only
reference to a “list” appeared in the common allegations, where Foley alleged
that “[i]n September 2018, eight more priests were added to this list, as well,
including plaintiff.” (Italics added.) Not only was it unclear what “list” the
complaint was referring to since no list had previously been identified, but
the complaint did not provide the list’s title or indicate that it had been
published. More to the point, the list was not identified as one of the
defamatory publications on which Foley’s cause of action for “Defamation
(Libel)” was based. The party resisting an anti-SLAPP motion bears the
burden of establishing the legal sufficiency of his pleading. (Gilbert, supra,
147 Cal.App.4th at p. 31.) Foley failed to do this, and on this ground alone,
the trial court would have been justified in striking the claim. (Id. at p. 32.)
On appeal, Foley does not address the legal sufficiency or insufficiency
of his libel claim in his opening brief. He does, however, offer up a host of
new contentions about the defamatory statements on which the claim is
purportedly based. He now asserts that adding his name to the list of
credibly-accused priests was impliedly as well as directly defamatory because
22
it suggested he was like the other individuals on the list who were, so he
argues, “actual abusers.” He also claims for the first time that numerous
statements that the articles attributed to McElroy, Valdivia, and Eckery were
directly and impliedly false. We discuss these newfound theories of libel in
greater detail below.
In response, Defendants point out that Foley neglected to address his
second-step burden to show a legally sufficient claim. They reiterate that his
complaint does not minimally plead a written statement by any defendant,
much less the verbatim recitation required for a valid libel claim, that the
only publications identified in support of the claim are the two news articles
published by the San Diego Union Tribune and the San Jose Mercury News,
and that the statements attributed to them within the articles were verbal,
not written, and cannot support a claim for libel.
Foley responds in his reply brief that the complaint’s allegations of libel
were sufficient. He contends that by labeling his first cause of action
“Defamation (Libel),” he disclosed that “the challenged falsities were reduced
to writing in the form of newspaper quotes and restatements.” He argues he
sufficiently alleged Defendants’ defamatory statements by “expressly
incorporat[ing] and attach[ing] [to the complaint] the actual newspaper
articles, which do contain the verbatim attributions challenged here[.]” He
also appears to contend that a plaintiff does not need to show compliance
with the pleading standards for libel to survive an anti-SLAPP motion.
We reject Foley’s arguments and conclude he fails to demonstrate an
adequately pled libel claim. “The general rule is that the words constituting
an alleged libel must be specifically identified, if not pleaded verbatim, in the
complaint.” (Kahn, supra, 232 Cal.App.3d at p. 1612, fn. 5.) Contrary to
Foley’s argument otherwise, this pleading rule applies in an anti-SLAPP
23
motion. (See Medical Marijuana, supra, 46 Cal.App.5th at p. 893 [anti-
SLAPP motion challenging libel cause of action; quoting Kahn, at p. 1612, fn.
5]; Vogel, supra, 127 Cal.App.4th at p. 1017, fn. 3 [same]; Gilbert, supra, 147
Cal.App.4th at p. 31 [anti-SLAPP motion challenging defamation cause of
action; quoting Vogel, at p. 1017, fn. 3, which quoted Kahn, at p. 1612, fn. 5].)
A libel cause of action alleged without the requisite specificity does not meet
the requirement of demonstrating a legally sufficient claim. (Gilbert, at p.
32.) Also, because the complaint delimits the issues to be considered on an
anti-SLAPP motion, the failure to allege Defendants’ defamatory statements
also justifies this court in “disregarding any evidence or argument concerning
statements not explicitly set forth in the complaint.” (Vogel, at p. 1017, fn. 3.)
We also disagree with Foley’s assertion that he sufficiently identified
Defendants’ allegedly defamatory statements by simply attaching the news
articles to the complaint. In Medical Marijuana, supra, 46 Cal.App.5th 869,
we squarely rejected the possibility of pleading libel in this manner. There,
we reviewed the denial of an anti-SLAPP motion challenging a libel cause of
action premised on asserted inaccuracies in a 25-page article. (Id. at p. 885.)
The allegations of the operative complaint identified two such misstatements.
(Ibid.) On appeal, plaintiffs sought to bolster the merits of their claim by
identifying another 19 purported inaccuracies in the articles that were not
alleged in the complaint. (Id. at p. 892.) They argued “ ‘[i]t was . . .
unnecessary to recite each challenged statement in the pleading because the
entire [Article] was attached to the [operative] complaint.’ ” (Id. at p. 894.)
We “unequivocally reject[ed]” this position. (Ibid.) We emphasized that a
libel charge requires a verbatim recitation of the allegedly offensive
communication, and that no matter the theory of defamation, the plaintiff is
required to “ ‘allege[ ] the substance of the defamatory statement.’ ” (Id. at p.
24
893, italics added.) Plaintiffs had not “quoted, identified, mentioned or
otherwise referenced” the 19 statements in the allegations of their complaint,
nor had they “even highlighted, underlined, or otherwise identified” them in
the copy of the article attached as an exhibit to the complaint. (Id. at p. 892,
fn. 14.) We stated “the requirement that the allegedly defamatory statement
be set out verbatim does not permit a plaintiff to attach an entire multi-page
article to a complaint without identifying the specific defamatory matter on
which the plaintiff is relying and expect the defendants (and the court) to
ferret out the purportedly false statements with no guidance whatsoever from
the plaintiff.” (Id. at pp. 894–895.) Because the boundaries of the issues to
be considered on an anti-SLAPP motion are delimited by the pleadings, we
concluded plaintiffs could not rely on the 19 newly-identified statements that
did not appear in the complaint’s allegations to establish a probability of
prevailing on their libel claim. (Id. at p. 895.)
Our analysis and conclusion in Medical Marijuana compel us to reject
Foley’s argument that he complied with the pleading requirements for libel
by simply attaching copies of the two news articles to the complaint.
Although the articles spanned a total of 10 pages, fewer than the 25-page
article at issue in Medical Marijuana, it is still the case that attaching 10
pages of material to a complaint is an insufficient means of alerting
Defendants to the purportedly defamatory statements for which they are
being sued. Like the plaintiffs in Medical Marijuana, Foley neither “quoted,
identified, mentioned or otherwise referenced” nor “highlighted, underlined,
or otherwise identified” them in the attached articles. (Medical Marijuana,
supra, 46 Cal.App.5th at p. 892fn. 14.) Worse, Foley confusingly accused
Defendants of libel despite the absence of any writings attributed to them,
and he identified the “publications” at issue as the news articles though they
25
plainly had been published by others. Foley’s deficient pleading made
identification of the basis for his libel claim a matter of guesswork. We
disagree that such misdirected and uncertain allegations are adequate to
sufficiently plead a claim for libel against the Defendants.
Foley contends that notwithstanding any uncertainty in his pleading,
Defendants showed they “plainly understood” which of their statements were
at issue insofar as they tried to anticipate and defend certain statements in
their motion. We disagree that the record reveals any such plain
understanding. If anything, the effort to identify the basis for Foley’s claim
has been more akin to a shell game. In their moving papers filed in the trial
court, Defendants argued that certain quotes or statements from the news
articles that are attributed to McElroy, Valdivia, and Eckery were
unactionable opinions or were not false. In response, Foley took the position
that his libel claim was based on a different publication altogether—the list
of credibly-accused priests. On appeal, Foley has expanded the basis for his
claim even further to include not only the list of credibly-accused priests, but
also statements and quotes attributed to McElroy, Valdivia, and Eckery—
only some of which Defendants attempted to defend in the trial court. As this
progression demonstrates, there has never been a fixed understanding of the
basis of Foley’s libel claim. Rather, the record suggests he has sought to
capitalize on the complaint’s ambiguity by shifting his theories of liability in
response to Defendants’ arguments.
We conclude that Foley fails to establish an adequately pled, and thus
legally sufficient, libel claim. Although “we could well stop here” (Gilbert,
supra, 147 Cal.App.4th at p. 32), we observe that Foley also failed to factually
substantiate the claim.
26
B. Foley Fails to Demonstrate That He Substantiated His Libel Claim with
Competent, Admissible Evidence
To resist Defendants’ anti-SLAPP motion, Foley was required not only
to establish a legally sufficient claim but also to factually substantiate his
libel claim, meaning he needed to make “a prima facie factual showing
sufficient to sustain a favorable judgment.” (Baral, supra, 1 Cal.5th at
pp. 384–385.) This showing could be made only through “competent
admissible evidence.” (Sweetwater Union High School Dist. v. Gilbane
Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater Union).) As we discuss,
Foley’s showing fell short, because he relied on a theory of libel that was not
tenable, and his only evidence on the critical element of falsity was ruled
inadmissible.
“ ‘ “The sine qua non of recovery for defamation . . . is the existence of a
falsehood.” ’ ” (Medical Marijuana, supra, 46 Cal.App.5th at p. 884.) And
“[w]here a case involves matters of public interest, the plaintiff, even a
private figure plaintiff, bears the burden of proving that the statements at
issue are false.” (Id. at p. 888, fn. 12; see Brown v. Kelly Broadcasting Co.
(1989) 48 Cal.3d 711, 747 [“When the speech involves a matter of public
concern, a private-figure plaintiff has the burden of proving the falsity of the
defamation.”]; Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364,
373–375 [plaintiff bears this burden even in a case involving a nonmedia
defendant].) For purposes of defamation, there are “no precise boundaries
defining an issue of public importance.” (Gallagher v. Connell (2004) 123
Cal.App.4th 1260, 1275.) “[F]or a matter to be of public interest in the
defamation context it must be of concern to a large segment of the populace
as opposed to a small fragment having a special interest.” (Ibid.) The
diocese’s issuance of the updated list of priests credibly accused of child
molestation, and the statements attributed to Defendants within the news
27
articles, easily fit this description. (See ibid. [concluding that whether a
parish priest took unfair advantage of an elderly parishioner involved a
matter of public interest]; Carney v. Santa Cruz Women Against Rape (1990)
221 Cal.App.3d 1009, 1021 [organization newsletter that described men who
had been allegedly “ ‘hassling/assaulting/raping’ women” was a publication on
matters relating to “sexual harassment and violence against women,” a topic
“of pressing public concern”].)11
In the trial court, Foley argued the publication at issue was the
updated list of priests “identified as having ‘credible allegations’ against
them,” but he failed to establish the falsity of this purported act of
defamation. He argued that placing his name on this list was a false factual
assertion because the “statement that [he] has ‘credible’ allegations against
him essentially states, as a fact, the opposite of the non constat finding[.]”
(Emphasis in original.) In his complaint, he alleged the tribunal found him
“not guilty,” and he asserted in his declaration that “ ‘non constat’ ” means “
‘it is not established’ or ‘it is not agreed,’ ” and was “equivalent to a verdict of
‘not guilty’ in the American justice system.” 12
11 In the trial court and on appeal, Defendants have consistently asserted
the plaintiff bears the burden of proving the falsity of statements relating to
matters of public concern. Foley has not disputed this is the governing rule.
In his opening brief on appeal, he identifies falsity as one of the elements of
defamation “at issue” and attempts to demonstrate Defendants made
statements that were “directly false and impliedly false,” from which we infer
that he concedes the burden to prove falsity is with him. For the reasons just
stated, we agree with this implied concession.
12 In his brief opposing the anti-SLAPP motion, Foley asserted that
according to Black’s Law Dictionary, “ ‘[n]on constat’ means ‘it does not
appear’ or ‘it is not clear or evident.’ ” He failed to establish, however, that
Black’s Law Dictionary is considered an authority with bearing on matters of
canon law.
28
This theory of falsity was flawed from the outset. A basic tenet of
American criminal justice is that a not guilty verdict is not a determination of
factual innocence. An acquittal “simply indicates that the prosecution did not
prove the defendant’s guilt beyond a reasonable doubt, [and] does not directly
address whether he committed the charged offense.” (People v. Scott M.
(1985) 167 Cal.App.3d 688, 698–699 (Scott M.), overruled in part on other
grounds by People v. Adair (2003) 29 Cal.4th 895, 907; see also Scott M., at p.
700 [“ ‘[T]he requirement of proof beyond a reasonable doubt often results
that defendants, who are not factually innocent, are acquitted.’ ”]; accord
People v. Matthews (1992) 7 Cal.App.4th 1052, 1056.)
Even if we ignore the analogy to “a verdict of ‘not guilty’ in the
American justice system” and focus on Foley’s assertion that “ ‘non constat’ ”
means “ ‘it is not established’ ” or “ ‘it is not agreed’ ” (or “ ‘it does not
appear’ ” or “ ‘it is not clear or evident’ ” as argued in his opposition brief (see
footnote 12, ante), these interpretations still signaled the evidence was found
insufficient to prove Foley committed the acts of which he was accused, a
result that still would not establish that the allegation of misconduct was
untrue or not worthy of belief. (See People v. Esmaili (2013) 213 Cal.App.4th
1449, 1460–1461 [at preliminary hearing, the “magistrate made it clear that
while he was concerned about inconsistencies in [alleged victim’s] testimony
and the prosecution’s ability to obtain a conviction as a consequence,” he
nevertheless “believed ‘[t]here’s something there’ ” and denied the petition for
factual innocence; Court of Appeal affirmed, ruling that in the absence of a
finding the victim’s testimony was untruthful, “we cannot say that no person
of ordinary care and prudence would believe or strongly suspect appellant
was guilty of the charged offense”].)
29
Not only was Foley’s theory of falsity flawed; he also failed to
substantiate it with competent, admissible evidence. (Sweetwater Union,
supra, 6 Cal.5th at p. 940.) The only evidence he offered to show the falsity of
characterizing him as credibly accused of sexual abuse was his own
declaration. In paragraph 5, he asserted the Sacramento parents’ testimony
before the tribunal was conflicting and was rejected as not credible, and that
the tribunal’s verdict of “ ‘non constat,’ ” meant “ ‘it is not established’ or ‘it is
not agreed,’ ” and was “equivalent to a verdict of ‘not guilty’ in the American
justice system.” In paragraph 6, he stated the Sacramento Police
Department investigated the allegations but “took no action,” that the “ ‘not
guilty’ verdict [was] validated by Rome,” and that “no civil, criminal, or
canonical action” was otherwise taken against him. However, both of these
paragraphs were ruled inadmissible in response to Defendants’ evidentiary
objections.
On appeal, Foley challenges the trial court’s rulings, but he fails to
establish an abuse of discretion. (See Park, supra, 201 Cal.App.4th at p. 1427
[trial court’s evidentiary ruling is reviewed for an abuse of discretion].) Foley
first argues the trial court’s minute order sustaining five of Defendants’ 14
objections to his declaration was an improper “blanket ruling[ ].” We
disagree. The so-called “blanket” rulings that appellate courts have viewed
with suspicion are those excluding vast swaths of evidence on grounds so
perfunctory they suggest reflexive, unconsidered judicial action. (See, e.g.,
Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 249–250, 254–256
(Nazir) [trial court ruling that perfunctorily sustained 763 out of 764
evidentiary objections, many of them frivolous, was an abuse of discretion
because it could not possibly have been guided by fixed legal principles];
Greenspan v. LADT LLC (2010) 191 Cal.App.4th 486, 522 (Greenspan) [trial
30
court ruling sustaining all but one of defendants’ objections to 30 of plaintiff’s
39 exhibits was “cryptic”].) The trial court’s ruling in this case was not of
that ilk. The court sustained fewer than half of Defendants’ objections to
Foley’s declaration, which resulted in the exclusion of four of its 13
paragraphs. This is not the sort of sweeping, presumptively unconsidered
ruling criticized in Nazir and Greenspan. Moreover, although the trial court
did not explain its reasoning, under Greenspan, we do not simply reverse
cryptic evidentiary rulings, but rather we consider for ourselves whether each
underlying objection has merit. (See Greenspan, at p. 522 [“Lacking any
guidance from the trial court, we must consider every objection . . . to decide if
any has merit.”].)
Foley next tries to demonstrate that Defendants’ individual evidentiary
objections were lacking in merit, but his arguments are perfunctory and
ultimately unpersuasive. He repeatedly complains that it is unclear which of
Defendants’ objections “apply to which sentences.” We disagree. Although
Defendants did assert several objections to each of the paragraphs in Foley’s
declaration, they indicated the specific text challenged by each objection in
their supporting argument. By sustaining the objections, the court
necessarily indicated its agreement with Defendants’ positions and ruled the
challenged text inadmissible. Contrary to Foley’s contention otherwise, it
was not unclear which statements in his declaration were the subject of
Defendants’ various objections, or which parts of his declaration were
rendered inadmissible by the court’s ruling.
Turning to the specific objections themselves, Defendants objected that
paragraph 5 contained inadmissible hearsay to the extent it purported to
describe the testimony offered, cross-examination conducted, and testimony
rejected by the tribunal, and the ruling of the tribunal. On appeal, Foley
31
maintains: “The statements in paragraph 5 are not hearsay because they are
not offered for the truth of the matter stated.” This is Foley’s entire
argument, and it is a puzzling one. If the statements were not offered for
their truth, then for what relevant purpose were they offered? And if the
statements were not offered for their truth, how could they assist Foley in
meeting his second-step burden of establishing facts to support his claims?
Foley does not answer these questions. Moreover, contrary to his claim the
challenged assertions were not offered for their truth, his declaration
presents them as facts. We are not persuaded this objection should have
been overruled.
The trial court also sustained Defendants’ objection that paragraph 5
contained improper lay opinion testimony. Defendants argued Foley was not
competent to render an expert opinion about the result of the canonical trial
or the meaning of “ ‘non constat.’ ” On appeal, Foley simply asserts that
“[p]aragraph 5 does not include any expert opinion” and that “a lay person
may testify as to any matter rationally based on the perception of the witness
and helpful to a clear understanding of his testimony.” We find this
argument unpersuasive. Although lay witnesses may testify about matters
rationally based on their perception, they may not express opinions on
matters that are outside common knowledge or experience. (Evid. Code,
§ 801, subd. (a).) Issues of canon law and “[t]he by-laws and internal rules
and regulations of religious organizations” are subjects outside common
knowledge and are appropriately offered “in the form of expert testimony.”
(Stevens v. Roman Catholic Bishop of Fresno (1975) 49 Cal.App.3d 877, 883.)
Foley did not establish that he possessed any background or expertise in
canon law nor did he otherwise identify the source of his purported
32
knowledge about the tribunal’s verdict or the meaning of “ ‘non constat.’ ” We
see no error in the court’s ruling sustaining this objection.
The trial court also sustained Defendants’ objection that Foley failed to
lay a foundation in personal knowledge for his assertions about other
lawsuits filed by the Sacramento parents and their son’s failure to participate
in the tribunal. On appeal, Foley argues that under Fashion 21 v. Coalition
for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138,
1148 (Fashion 21), evidence that lacks a proper foundation may be used to
defeat an anti-SLAPP motion so long as the plaintiff shows a high probability
of establishing a proper foundation. Foley overstates the holding of Fashion
21. In Fashion 21, the Court of Appeal held it was not error for the trial
court to consider video evidence offered in opposition to an anti-SLAPP
motion, even though the videotape was not properly authenticated. (Id. at
p. 1148.) Fashion 21 dealt only with the “simple matter” of a failure of
authentication and did not purport to overrule the fundamental requirement
that evidence submitted in opposition to an anti-SLAPP motion must be
presented in a form that would be admissible at trial. (Ibid.) In Sweetwater
Union, supra, 6 Cal.5th at page 945, which was decided after Fashion 21, our
high court confirmed that declarations offered in opposition to an anti-SLAPP
motion “must reflect that they were made by competent witnesses with
personal knowledge of the facts they swear to be true.” (Italics added.) As
Foley fails to show he comported with this requirement, we see no basis for
overturning the trial court’s evidentiary ruling.
Once these three objections (hearsay, improper lay opinion, lack of
foundation) were sustained, all of the statements in paragraph 5 that might
have supported Foley’s theory of falsity were rendered inadmissible,
including his statements about the parents’ lack of credibility and the
33
meaning and effect of the “ ‘non constat’ ” verdict. We need not consider
Defendants’ remaining objections to paragraph 5, since they merely serve to
provide additional grounds for excluding the same testimony.
Turning to paragraph 6, Defendants objected that it lacked foundation,
contained hearsay, improper expert opinion testimony, and irrelevant matter.
More specifically, Defendants’ lack of foundation objection was based on the
argument that Foley failed to establish a basis in personal knowledge for his
averments about the investigation conducted by the Sacramento Police
Department, the purported “ ‘not guilty’ ” verdict reached by the tribunal, or
the actions taken “ ‘by Rome’ ” or by any other civil, criminal, or canonical
tribunals. In his opening brief on appeal, Foley perfunctorily asserts he “has
personal knowledge of the criminal investigation and that no criminal
charges were filed against him” and “[h]e also has personal knowledge that
no action was taken against him by the authorities in Rome.” We cannot
accept these assertions as true, however, because they are arguments of
counsel, and have no evidentiary value. (In re Zeth S. (2003) 31 Cal.4th 396,
413, fn. 11 [“It is axiomatic that the unsworn statements of counsel are not
evidence.”].) Foley was required to set forth the basis for his personal
knowledge in his declaration. (Sweetwater Union, supra, 6 Cal.5th at
pp. 944–945, 947–948; see Evid. Code, § 702, subd. (a) [“[T]he testimony of a
witness concerning a particular matter is inadmissible unless he has personal
knowledge of the matter. Against the objection of a party, such personal
knowledge must be shown before the witness may testify concerning the
matter.” (Italics added.)].) He does not show he complied with this
requirement.
Foley also repeats his earlier argument that under Fashion 21, he did
not have to establish a foundation in personal knowledge but instead only
34
had to show a “high probability” of meeting the foundation requirement. As
we have discussed, however, Foley overstates the holding of Fashion 21, and
our high court has since confirmed that declarations offered in opposition to
an anti-SLAPP motion “must reflect that they were made by competent
witnesses with personal knowledge of the facts they swear to be true.”
(Sweetwater Union, supra, 6 Cal.5th at p. 945, italics added.) Foley thus fails
to establish that this objection lacked merit. As its effect was to render
paragraph 6 inadmissible in its entirety, it is unnecessary to consider
Defendants’ remaining objections to the same paragraph.
Foley’s failure to show error in the evidentiary rulings that resulted in
paragraphs 5 and 6 being deemed inadmissible is fatal to his ability to
demonstrate a probability of prevailing on the theory that he was defamed by
the addition of his name to the list of credibly-accused priests. These
paragraphs contained his only evidence of the purported falsity of
characterizing him as credibly accused of molestation. Once they were
removed from contention, he was without any proof to substantiate an
essential element of his claim.
As we mentioned above, on appeal, Foley has expanded his theory of
libel significantly to include a number of statements he did not present as
defamatory in the trial court. His new theories are numerous and too
detailed to describe in all their particulars, but we provide the following
overview. Foley now contends that adding his name to the updated list of
credibly-accused priests was not just “directly” false but also impliedly false
because by placing his name with the names of other priests, the list “lumped
[him] together” with individuals who were “actual abusers.” He argues that
certain statements of the authoring journalists and “the third parties they
interviewed” support the view that the list could be reasonably interpreted by
35
a jury as implying he “was a child molester.” 13 He focuses on certain quotes
attributed to McElroy and argues that although McElroy did not mention
him by name, McElroy’s use of certain words (like “ ‘this,’ ” “ ‘victims’ ” and
“ ‘perpetrator’ ”) defamed Foley by implication, by “lumping Father Foley in
with the group of clergy who have actually molested minors.” He criticizes a
number of statements attributed to Eckery, including that the Sacramento
couple’s allegation of abuse involved two children, rather than one, and that
the diocese made “ ‘sure the family got justice,’ ” which Foley claims falsely
implied he was criminally punished for the alleged molestation. He
complains that he was defamed by Eckery’s “tone and word choice” in the
statement, “ ‘[w]hen he couldn’t be judged guilty at trial, it just complicated
things with how to deal with him.’ ” He contends the quote attributed to
Valdivia, “ ‘He wasn’t guilty, but that’s not to say he was innocent,’ ”
insinuated that Foley “did, in fact, sexually abuse minors, just like the other
priests originally listed.” He also claims Eckery and Valdivia defamed him
by stating his priestly faculties had been suspended, something Foley denies.
For a number of reasons, we reject Foley’s reliance on these newfound
theories to demonstrate a probability of prevailing on his claim. First, he
failed to preserve his contentions for appeal because he did not present them
in the trial court. “ ‘ “ ‘[I]t is fundamental that a reviewing court will
ordinarily not consider claims made for the first time on appeal which could
13 In addition to being forfeited and unpleaded (as we discuss below),
Foley’s newfound complaints about the tone of the articles and the context in
which Defendants’ statements were presented are meritless. Foley relies on
cases that do not apply because, unlike Foley’s complaint, they involved suits
against the publisher or reporter responsible for the reports as a whole (such
as Van Buskirk v. Cable News Network, Inc. (9th Cir. 2002) 284 F.3d 977,
984–985, and Crane v. Arizona Republic (9th Cir. 1992) 972 F.2d 1511, 1522).
These cases do not support holding Defendants liable for aspects of the
articles attributable to the authoring journalists.
36
have been but were not presented to the trial court.’ ” ’ ” (Hunter v. CBS
Broadcasting Inc. (2013) 221 Cal.App.4th 1510, 1526 [declining to consider
argument concerning public issue raised for the first time on appeal from
anti-SLAPP ruling]; Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4
Cal.App.5th 982, 997 [new theories of liability may not be asserted for the
first time on appeal].) Foley’s failure to offer any of these theories of libel for
the trial court’s consideration in the first instance forfeits his ability to rely
on them to demonstrate reversible error on appeal.
Second, as discussed above, none of the statements on which Foley now
relies are alleged in the complaint, as required to plead libel. Because “the
issues in an anti-SLAPP motion are framed by the pleadings” (Paulus v. Bob
Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 672), and “an alleged libel must
be specifically identified, if not pleaded verbatim, in the complaint” (Kahn,
supra, 232 Cal.App.3d at p. 1612, fn. 5), Foley is not free to simply craft new
theories of libel on appeal based on statements that do not appear in the
allegations of his complaint. Rather, as we explained in Medical Marijuana,
supra, 46 Cal.App.5th at page 895, Foley cannot demonstrate a probability of
prevailing based on the statements and theories he failed to allege.
Third, although it is his burden to demonstrate a factually
substantiated libel claim, Foley’s arguments are almost entirely devoid of
accompanying citations to the record showing his newly-identified theories
do, in fact, have evidentiary support. “In order to demonstrate error, an
appellant must supply the reviewing court with some cogent argument
supported by legal analysis and citation to the record. Rather than scour the
record unguided, we may decide that the appellant has forfeited a point urged
on appeal when it is not supported by accurate citations to the record.” (WFG
National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881,
37
894–895 (WFG), citing City of Lincoln v. Barringer (2002) 102 Cal.App.4th
1211, 1239 & fn. 16, and Cal. Rules of Court, rule 8.204(a)(1)(C).) To the
extent Foley’s appellate briefs offer new theories of liability without providing
citations to the record showing they are substantiated by admissible
evidence, we are not required to determine for ourselves whether and how
Foley might seek to prove them. Instead, we deem them forfeited.
The only new libel theory supported by citations to record evidence is
Foley’s theory that Eckery and Valdivia falsely stated he was stripped of his
priestly faculties. However, the evidence he cites—paragraph 9 of his own
declaration and paragraph 5 of McElroy’s declaration—is insufficient to
substantiate this theory. Paragraph 9 of Foley’s declaration was ruled
inadmissible in response to Defendants’ evidentiary objections; Foley fails to
show these rulings were erroneous.14 Paragraph 5 of McElroy’s declaration
merely states that he stopped issuing letters of good standing to Foley in
14 In the relevant portion of paragraph 9, Foley asserted McElroy
“continued [a] vendetta” against Foley by “falsely claiming in September 2018
that he had suspended my priestly faculties in 2015[.]” Defendants objected
to this testimony on a number of grounds, including that it was hearsay and
lacked foundation, and the trial court sustained these objections. On appeal,
Foley argues perfunctorily that his averments were not offered for their
truth, and that under Fashion 21, supra, 117 Cal.App.4th at page 1148,
evidence that lacks a proper foundation may be used to defeat an anti-SLAPP
motion if there is a high probability a proper foundation could be established.
These arguments repeat positions we have already considered and rejected.
38
2015, and does not, on its own, establish the falsity of Eckery and Valdivia’s
assertions.15
For all of these reasons, we conclude that Foley failed to demonstrate a
probability of prevailing on his cause of action for “Defamation (Libel).”
Having reached this conclusion, we need not and do not consider whether
Defendants’ allegedly defamatory statements were subject to the common
interest privilege set forth in Civil Code section 47, subdivision (c), or
whether Foley’s claims are barred by the ministerial exception. 16
IV.
Foley’s Cause of Action for Intentional Infliction of Emotional Distress Is
Derivative of His Libel Cause of Action and Likewise Fails
Foley’s second cause of action for intentional infliction of emotional
distress is based on Defendants’ alleged “publishing [of] false and defamatory
allegations in the newspapers[.]” Foley concedes this cause of action arises
from Defendants’ protected speech activities and “must stand or fall along
15 At the end of his discussion of his theories that Valdivia defamed him,
Foley cites two pages of his declaration for the proposition that “false
accusations are actionable” and his evidence shows “the assertions and
implications of the articles as false” and “the canonical and civil authorities
found no credible evidence to support actionable charges against him.” Citing
entire pages of his declaration is unhelpful, though, because each page
contains several paragraphs, some of which were ruled inadmissible. Foley’s
other evidentiary citations included the paragraph numbers, but he omitted
paragraph numbers with these citations. The failure to provide an accurate
citation directing us to the specific testimony he wishes us to consider forfeits
the point. (WFG, supra, 51 Cal.App.5th at pp. 894–895.) Moreover, so far as
we can determine, Foley is referring to paragraphs 5 and 6 of his declaration,
which, as we have discussed, were properly ruled inadmissible.
16 We also need not and do not address other points disputed by the
parties, including whether the statements attributed to Defendants in the
news articles were opinions or provably false assertions.
39
with the defamation claim.” Our determination that Foley did not meet his
burden of establishing a minimally meritorious cause of action for
“Defamation (Libel)” thus applies equally to this derivative claim. (See, e.g.,
Sonoma Media Investments, LLC v. Superior Court (2019) 34 Cal.App.5th 24,
43 [concluding that plaintiffs’ failure to make a prima facie showing of falsity
was equally fatal to plaintiffs’ derivative claims of libel per se and false light
invasion of privacy as to their defamation claim].)
DISPOSITION
The trial court’s order granting the anti-SLAPP motion is affirmed.
Defendants are entitled to their costs on appeal.
DO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
IRION, J.
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