Moline v. CBS News CA2/4 ( 2014 )

Filed 10/3/14 Moline v. CBS News CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
MARGARET A. MOLINE, B245468
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC462111)
v.
CBS NEWS INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Gregory Alarcon, Judge. Affirmed.
Margaret Moline, in pro. per., for Plaintiff and Appellant.
Jeffer, Mangels, Butler & Mitchell and John J. Lucas, for Defendant and
Respondent.
______________________________
Margaret Moline appeals from a judgment in favor of respondent CBS News Inc.
(CBS). The judgment was entered after the trial court sustained in part CBS’s demurrer
to Moline’s complaint and granted its special motion to strike her remaining claim under
the anti-SLAPP statute (Code Civ. Pro., § 425.16).1 CBS was awarded attorney fees and
costs. Moline argues she should be allowed to amend her complaint and proceed to a
jury trial. We find no error and affirm.
FACTUAL AND PROCEDURAL SUMMARY
On February 15, 2008, a local CBS-owned television station in New York
broadcast a report about a device called the “Electro Physiological Feedback Xrroid
system” (EPFX). The report stated that “thousands of practitioners around the
country . . . say it can detect, even treat diseases,” but only one practitioner, Kathryn
Krosta in New Jersey, was mentioned by name. According to the report, the EPFX was
not supported by studies or approved by the Food and Drug Administration, and it was
banned in the United States; its inventor was a wanted felon. The report suggested
people with serious health problems were taken advantage of.
In May 2011, Moline, in propria persona, filed a complaint for fraud and negligent
misrepresentation against CBS. She alleged the claims that the EPFX was illegal and its
inventor a felon were false, that the report was available online at least until August 2010,
and that it adversely affected Moline’s business as “a bio-feedback practitioner.” CBS
demurred.
After the court granted her an extension to oppose the demurrer, Moline, through
counsel, filed a first amended complaint against CBS and the reporter, Kirstin Cole. The
first amended complaint alleged the report was published on August 10, 2010. It
included causes of action for libel, intentional interference with contractual relations,
intentional interference with prospective economic advantage, negligent infliction of
1
SLAPP is an acronym for “‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 732, fn. 1.) Unless
otherwise indicated, statutory references are to the Code of Civil Procedure.
2
emotional distress, and negligence. CBS demurred again.2 Moline appeared without
counsel at the demurrer hearing in April 2012, and the court deemed the matter submitted
after her counsel failed to contact the court. The court sustained the demurrer without
leave to amend as to the causes of action for libel, negligence and negligent infliction of
emotional distress. It overruled the demurrer as to the cause of action for intentional
interference with contractual relations and granted 10 days to amend the cause of action
for intentional interference with prospective economic advantage. No amendment was
filed.
In May 2012, CBS challenged the one remaining cause of action—intentional
interference with contractual relations—in an anti-SLAPP motion. The motion was
supported by a declaration of the report’s producer and a copy of the report. In June
2012, Moline moved for an extension to file an amendment to the complaint because her
attorney had failed to do so. She also moved to continue the hearing on the anti-SLAPP
motion, of which she claimed to have just become aware. She acknowledged her
attorney had notified her at the end of May that CBS had filed the motion in court, and
she filed a written response to it on the day of the hearing.
After taking the matter under submission, the court denied a continuance and
granted the anti-SLAPP motion. The court clerk certified that a copy of the order was
sent to Moline at her home address. Nevertheless, Moline complained she had no notice
the court had ruled against her. Her new counsel went further, claiming Moline had not
become aware of the anti-SLAPP motion until after it was granted.
In November 2012, the court granted the CBS motion for $16,618.50 in attorney
fees. Moline filed a notice of appeal from the court’s interim orders. Judgment was
entered in January 2013, and Moline appealed it in case No. B247860. Subsequently, a
new judge denied her motion for a settled statement of the earlier hearings, at which there
2
CBS’s counsel noted that the demurrer was brought only on CBS’s behalf
because Cole had not been served. The record does not indicate that Cole received
service of process.
3
was no court reporter. On Moline’s motion, we consolidated case No. B247860 into her
pending appeal in this case.
DISCUSSION
Moline’s opening brief is difficult to follow, and CBS focuses its response on the
court’s most significant orders on the demurrer, anti-SLAPP motion, and motion for
attorney fees. In addition to these orders, we also briefly address Moline’s claims of
procedural error.
I
When the trial court sustains a demurrer, we review the complaint de novo to
determine whether it contains facts sufficient to state a cause of action. (Holland v. Jones
(2012) 210 Cal. App. 4th 378, 381.) We accept as true all properly pled material facts and
consider matters subject to judicial notice. (Zelig v. County of Los Angeles (2002)
27 Cal. 4th 1112, 1126.)
Defamation actions, whether for libel or slander, are subject to a one-year statute
of limitations. (§ 340, subd. (c).) Moline’s original complaint, filed in May 2011,
identified the date of the CBS report as February 15, 2008, more than three years earlier.
The first amended complaint substituted a later date—August 10, 2010. “Under the
sham-pleading doctrine, admissions in an original complaint that has been superseded by
an amended pleading remain within the court’s cognizance and the alteration of such
statements by amendment designed to conceal fundamental vulnerabilities in a plaintiff’s
case will not be accepted. [Citation.]” (Berg & Berg Enterprises, LLC v. Boyle (2009)
178 Cal. App. 4th 1020, 1043, fn. 25.) Moline attempts to justify the later date as the date
she actually discovered the report. That date has no legal significance.
Under the single publication rule, a cause of action for defamation accrues, and the
statute of limitations begins to run, at the time the defamatory statement is first
distributed to the general public, “regardless of when the plaintiff . . . became aware of
the publication. [Citations.]” (Shively v. Bozanich (2003) 31 Cal. 4th 1230, 1245–1246.)
The rule, codified in the Uniform Single Publication Act (USPA), applies to mass media
4
broadcasts and publications, including the Internet. (See Civ. Code, § 3425.3;
Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal. App. 4th 392, 404.)3 The USPA
applies to any tort action based on a defamatory statement communicated through the
mass media. (See Long v. Walt Disney Co. (2004) 116 Cal. App. 4th 868, 873; McGuiness
v. Motor Trend Magazine (1982) 129 Cal. App. 3d 59, 63.) The delayed discovery rule
does not apply in this context because a defamatory statement made available to the
general public is not hidden or ‘“inherently undiscoverable.”’ (Shively v. Bozanich, at
pp. 1249–1250, 1253.)
The trial court correctly sustained the demurrer to the causes of action for libel,
negligence, and negligent infliction of emotional distress. All these tort claims were
based on the publication of the CBS report to the general public on February 15, 2008,
and therefore were in substance actions for libel subject to the USPA and the one-year
statute of limitation.
II
On appeal from an order granting or denying an anti-SLAPP motion under section
425.16, we independently determine whether the plaintiff’s cause of action arises out of
defendant’s protected activity and, if so, whether the plaintiff has demonstrated a
probability of prevailing on the merits. (Oviedo v. Windsor Twelve Properties, LLC
(2012) 212 Cal. App. 4th 97, 109.)
3
Moline argues the single publication rule should not apply to the Internet, relying
on Comment, Internet Publications and Defamation: Why the Single Publication Rule
Should Not Apply, 32 Golden Gate U. L.Rev. 325 (2002) and cases cited there. (See,
e.g., Swafford v. Memphis Individual Practice Assn. (Tenn.Ct.App., June 2, 1998, No.
02A01–9612–CV–00311) 1998 WL 281935 [restricted access database]; Schneider v.
United Airlines, Inc. (1989) 208 Cal. App. 3d 71 [credit report]; Hyde v. Hibernia Nat.
Bank (5th Cir. 1988) 861 F.2d 446 [credit report].) The analogy to credit-report and
limited-access-database cases is inapposite because the information at issue in those cases
was not publicly available. The arguments Moline advances have been uniformly
rejected. (See Roberts v. McAfee, Inc. (9th Cir. 2011) 660 F.3d 1156, 1167 [collecting
California cases]; Nationwide Bi-Weekly Admin., Inc. v. Belo Corp. (5th Cir. 2007) 512
F.3d 137, 143–145 [collecting cases].)
5
A news report on an issue of public interest is protected under section 425.16,
subdivision (e). (See Lieberman v. KCOP Television, Inc. (2003) 110 Cal. App. 4th 156,
164–165 [television broadcast based on secret recording of doctor’s illegal prescription of
controlled substances was protected].) Moline argues the false claims in the report are
not entitled to protection. Her argument begs the question. The defendant bears the
initial burden to show only that the activity was in furtherance of free speech; the plaintiff
then has the burden of showing it was not. (Id. at p. 165.)
It was Moline’s burden to make a prima facie showing that the claims in the report
were false by offering ‘“competent and admissible evidence”’ in the trial court. (Gilbert
v. Sykes (2007) 147 Cal. App. 4th 13, 26.) Declarations that lack “foundation or personal
knowledge, or that are argumentative, speculative, impermissible opinion, hearsay, or
conclusory” are not such evidence and may be disregarded. (Ibid.) Moline’s declaration
in response to the anti-SLAPP motion consisted of conclusory statements that “[t]he
device was not, and is not, banned . . . [Its inventor] was not, and is not today, a Felon.”
She offered no additional facts or evidence to substantiate these statements. On appeal,
Moline asks that we take judicial notice of various documents that were not presented to
the trial court in relation to the anti-SLAPP motion and are not part of the record on
appeal. We cannot do so. (See Truong v. Nguyen (2007) 156 Cal. App. 4th 865, 882
[documents not presented to the trial court and not part of the record on appeal cannot be
considered].)
At the time the anti-SLAPP motion was filed, the only remaining cause of action
was for intentional interference with contractual relations. The elements of this tort claim
are “(1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of
this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of
the contractual relationship; (4) actual breach or disruption of the contractual
relationship; and (5) resulting damage. [Citations.]” (Pacific Gas & Electric Co. v. Bear
Stearns & Co. (1990) 50 Cal. 3d 1118, 1126.)
CBS points out that Moline offered no evidence supporting this cause of action,
focusing in particular on the lack of evidence that anyone involved in the broadcast knew
6
of Moline’s existence or practice and intended to interfere with any of her contracts.
Moline relies on the reference in the report to ‘“thousands of practitioners”’ as evidence
of CBS’s awareness of the existence of practitioners like her and its intent to interfere
with their business. The knowledge element of an interference claim may be satisfied if
the other party to the contract is identified in some way, not necessarily by name.
(Ramona Manor Convalescent Hosp. v. Care Enterprises (1986) 177 Cal. App. 3d 1120,
1133.) The intent to interfere may be “incidental to the actor’s independent purpose and
desire, but known to him to be a necessary consequence of his action.” (Quelimane Co.
Inc. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, 56.) The report was arguably
intended to protect unwitting consumers from unscrupulous practitioners. Even were it
possible to infer an intent to interfere with the practitioners’ existing contracts, the record
contains no evidence regarding Moline’s own existing contracts, any actual interference
with them, and any damages she sustained as a result.
Moline responded to the anti-SLAPP motion with the vague statement that the
report “had the potential of harming thousands of legitimate practitioners, and it has.”
She offered no evidence that the report had harmed her personally. The first amended
complaint generally alleged Moline had third-party contracts, but identified only her
contract with the EPFX inventor. She could not make her prima facie case based on that
allegation alone. (See Nagel v. Twin Laboratories, Inc. (2003) 109 Cal. App. 4th 39, 45
[in opposition to anti-SLAPP motion, “plaintiff cannot rely on the allegations of the
complaint alone, but must present admissible evidence”].)
Aside from the lack of competent evidence to support a prima facie case, Moline’s
intentional interference claim also fails because, like all other causes of action in the first
amended complaint, it is a tort claim based on allegedly defamatory statements made in a
mass broadcast. As we explained earlier, any such tort claim is subject to the USPA, and
the applicable one-year statute of limitation for defamation. (See Long v. Walt Disney
Co., supra, 116 Cal.App.4th at p. 873; see also Peregrine Funding, Inc. v. Sheppard
Mullin Richter & Hampton LLP (2005) 133 Cal. App. 4th 658, 685–686 [anti-SLAPP
motion granted on statute of limitation grounds].)
7
The court properly granted CBS’s anti-SLAPP motion. As a prevailing defendant
on an anti-SLAPP motion, CBS was entitled to mandatory attorney fees and costs.
(§ 425.16, subdivision (c); Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131.)
III
Moline complains of various perceived procedural errors. Some of her complaints
are based on her insufficient knowledge of court procedure. For instance, she apparently
believes that CBS’s demurrer and anti-SLAPP motion were improperly heard and granted
because a trial date already had been set and she had a right to present her evidence at a
jury trial. She appears to be unaware of her burden to present evidence in opposition to
an anti-SLAPP motion. Moline maintains that because she has intermittently represented
herself, procedural rules should be liberally construed in her favor. Not so. A self-
represented litigant ‘“is to be treated like any other party and is entitled to the same, but
no greater consideration than other litigants and attorneys. [Citation.]’ [Citation.]”
(Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246–1247.)
Other complaints reflect Moline’s misunderstanding of the record. She claims the
court failed to rule on her requests for continuance, and that it did not explain its grounds
for ruling on the anti-SLAPP motion. The June 25, 2012 minute order states that the
court considered the parties’ papers and arguments, denied Moline’s motion to continue
the hearing, and granted CBS’s anti-SLAPP motion “for the reasons contained in
defendant’s moving papers.” The denial of a continuance is reviewed for abuse of
discretion, and requires reversal only if it “results in the denial of a fair hearing, or
otherwise prejudices a party. [Citation.]” (Freeman v. Sullivant (2011) 192 Cal. App. 4th
523, 527.) This record does not demonstrate that Moline was prejudiced or denied a fair
hearing, despite the problems she may have had with her retained counsel. She was not
entitled to repeated continuances due to her attorney’s failure to appear at hearings, file
pleadings, or keep her apprised of motions. She already had been granted a continuance
after CBS’s original demurrer, and she admittedly knew CBS had filed an anti-SLAPP
motion a month before the hearing. She was present at the hearing and submitted a
8
response to the motion. It is unlikely that a continuance would have changed the
outcome on the motion.
DISPOSITION
The judgment is affirmed. CBS is entitled to its costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J.
We concur:
MANELLA, J.
COLLINS, J.
9