Henreid v. Skaggs CA2/7 ( 2024 )

Filed 2/16/24 Henreid v. Skaggs CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
PAUL HENREID, B314741
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV20592)
v.
RICHARD SKAGGS,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, David Sotelo, Judge. Affirmed.
Paul Henreid, in pro. per., for Plaintiff and Appellant.
Raymond N. Haynes for Defendant and Respondent.
________________________
INTRODUCTION
After a two-day trial a jury found in favor of defendant
Richard Skaggs on defamation and false light claims brought by
plaintiff Paul Henreid, an attorney. As explained in greater
detail below, Henreid sued Skaggs based on Skaggs’
dissemination of an e-mail containing false information regarding
Henreid relating to criminal charges that were subsequently
expunged under Missouri law. Shortly before Skaggs published
the false information, Henreid had resigned from the Oso Town
Council after other council members confronted him regarding
the alleged criminal charges. Henreid was a member of the town
council and had served as its president. The matter received
local press coverage. Henreid appeals, contending the trial court
incorrectly ruled he was a public figure (or a private figure
involved in a public matter), and that it made several evidentiary
errors. Henreid has not carried his burden on appeal of
demonstrating reversible error, and we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In 2018 Henreid owned property in Neenach, an
unincorporated community in Los Angeles County. He was a
member and, for a time, the president of the Oso Town Council, a
local body that advises its member of the Los Angeles County
Board of Supervisors on issues of interest to local residents.
During his tenure, other members of the council became aware of
20-year-old allegations relating to Henreid when he was a law
student that involved criminal charges, which were subsequently
expunged under Missouri law. After members of the council
2
raised this matter with him, Henreid agreed to resign from the
council and not to run in an upcoming council election in
exchange for the other council members agreeing to pay for “an
outside independent accounting firm to audit the Oso Town
Council Foundation.” (Capitalization omitted.) The matter
received local press coverage.
An individual named Jesse Lee expressed interest in
running for election to fill the vacancy created by Henreid’s
resignation, but the other council members raised concerns about
Lee’s association with Henreid. In February 2019 Skaggs sent an
e-mail to Lee and the other council members stating as follows:
“We are not going to be fooled again like we were by your
compadre, Paul Henreid, who has a history of criminal
convictions. . . . We in Neenach are a trusting people and, when
Paul Henreid assured the Members of the Board that he [had] no
criminal convictions and no dark secrets in his past, we believed
him and made him ‘temporary President of the Oso Town
Council’ . . . As the administrator of the Neenach Community
Group Facebook page, you have an obligation of trust to the
community to be ‘totally transparent’ and to provide your identity
and current address for the safety of one and all.” At trial, the
jury expressly found Skaggs’ statement about Henreid was false.
Henreid filed a complaint against Skaggs based on this
email. He alleged causes of action for defamation per se and
invasion of privacy by false light. Henreid unsuccessfully moved
for summary judgment, and his action was set for trial in June
2021. Before trial, Skaggs filed a motion in limine asking the
trial court to rule that Henreid was a public figure or,
alternatively, a private figure in a matter of public concern. A
ruling in favor of Skaggs on that motion would essentially require
3
Henreid to prove at trial that Skaggs’ statement was made with
actual malice by clear and convincing evidence. (See Reader’s
Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s
Digest) [public figure]; Brown v. Kelly Broadcasting Co. (1989)
48 Cal.3d 711, 747 [public concern].) The trial court granted the
motion, but it is unclear whether it ruled that Henreid was a
public figure or that he was involved in a matter of public
concern. The minute order memorializing the trial court’s ruling
is not in the record, and there was no court reporter present at
the hearing. There was also no court reporter at the trial.
In the absence of a reporter’s transcript, we quote the
relevant portion of the settled statement describing the trial and
the evidence presented by the parties.1 (Cal. Rules of Court,
rule 8.137.)
“The following is a summary of the proceedings and
testimony at the trial in this matter:
1. On April 26, 2021, Skaggs filed a motion in limine to
determine whether Henreid was a public figure for the purpose of
the action at issue in the trial court. That motion was presented
and granted at the final status conference on June 8, 2021.
2. On June 8, 2021, jury selection began.
3. Testimony began on [June] 9, 2021. Henreid testified
on [June] 9, 2021 and [June] 10, 2021. Plaintiff testified that he
told Defendant about his expungement [under Missouri law]
several times and advised Defendant in writing via e-mail to stop
making defamatory statements about Plaintiff. In that
1 On our own motion we take judicial notice of the trial
court’s minute orders dated June 9 and 10, 2021 as these orders
describe the evidence offered at trial and the exhibits admitted
into evidence. (Evid. Code, §§ 452, subd. (d), and 459.)
4
correspondence, Plaintiff provided Defendant with an official
criminal history record from the California Department of Justice
showing no criminal history record for Plaintiff. Plaintiff
testified that he told Defendant that Missouri Invasion of Privacy
is not a sex offense and that Plaintiff had no convictions for any
sex offenses. . . .
4. On [June] 9, 2021, on cross examination, Skaggs
sought to introduce newspaper articles [regarding the alleged
criminal charges against Henreid] from 2018. In all, Skaggs
requested introduction of 15 newspaper articles regarding the
conviction from publications such as the Washington Post, CBS,
the ABA Journal, the Associated Press and other national
publications. The trial court allowed only two stories . . . finding
the other article [was] ‘cumulative.’[2]
5. The newspaper articles admitted speak for
themselves and presented a question of fact for the jury to decide
as to whether Henreid presented clear and convincing evidence
that Skaggs knew his statement was false or had serious doubts
about the truth of his statement.
6. The newspaper articles presented a question of fact
for the jury to decide as to whether Henreid presented clear and
convincing evidence that Skaggs knew his statement was false or
had serious doubts about the truth of his statement.
7. Henreid offered evidence regarding the Missouri
expungement laws, and a real estate contract that stated Henreid
had moved to Oklahoma. The court rules those documents
2 The trial court’s minute order dated June 10, 2021,
identifies three (not two) news articles that were admitted in
evidence.
5
irrelevant to the [sic] Henreid’s claims that the statement in
Skaggs’ email was libelous.
8. Skaggs testified on June 10, 2021, stating that, at the
time he wrote the alleged defamatory email, he was president of
the Oso Town Council, and wrote the email, and wrote that email
in the execution of his duties as the president. Skaggs testified
that Henreid had been a member of the Oso Town Council and its
president for a period of time. Skaggs testified that the Oso
Town Council acted as a quasi-public entity advising the Los
Angeles County Board of Supervisors on issues before the town of
Neenach in Los Angeles County, an area of about 500 residents
between Gorman and Lancaster California. Its monthly
meetings [were] open to the public and covered extensively by
local media.” (Capitalization omitted.)
The jury returned a verdict in favor of Skaggs. The jury in
its special verdict found, among other things, that: Skaggs made
the challenged statement; the recipients reasonably understood it
was about Henreid; and Skaggs’ statement about Henreid was
false. But the jury also found Henreid did not “prove by clear and
convincing evidence that Skaggs knew the statement was false or
had serious doubts about the truth of the statement.” The court
entered judgment on the jury verdict, and Henreid filed a timely
notice of appeal.
DISCUSSION
Henreid challenges the trial court’s ruling granting Skaggs’
motion in limine regarding his status as a public figure or private
figure involved in a matter of public concern. Henreid also
argues the court erred in excluding certain items of evidence at
6
trial (including discovery admissions and declarations), and
erroneously admitted two news articles regarding the past
criminal charges against him. Henreid also filed a motion for
sanctions against Skaggs. We address each in turn.
A. The Law of Defamation3
The elements of a claim for defamation depend on whether
plaintiff is a public figure or a private figure in a matter of public
concern. For a private figure, the elements for a defamation
cause of action are “(1) a publication that is (2) false,
(3) defamatory, (4) unprivileged, and (5) has a natural tendency
to injure or causes special damage.” (See John Doe 2 v. Superior
Court (2016) 1 Cal.App.5th 1300, 1312.) As noted above, when a
plaintiff is a public figure or involved in a matter of public
concern, the law requires proof of actual malice by clear and
convincing evidence. “If the person defamed is a public figure, he
cannot recover unless he proves, by clear and convincing evidence
[citation], that the libelous statement was made with “‘actual
malice”—that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.’” (Reader’s
Digest, supra, 37 Cal.3d at p. 256.) Similarly, if the defamation
involves an issue of public concern, proof of actual malice is
3 Henreid does not advance any argument on appeal
regarding his cause of action for “right of privacy—false light.” In
any event, “[w]hen a false light claim is coupled with a
defamation claim, the false light claim is essentially superfluous,
and stands or falls on whether it meets the same requirements as
the defamation cause of action.” (Eisenberg v. Alameda
Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13;
accord, Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d
1123, 1136.)
7
necessary to recover presumed or punitive damages even if the
plaintiff is not a public figure. (See Brown v. Kelly Broadcasting
Co., supra, 48 Cal.3d at p. 747.)
“Actual malice” in this context means the defamatory
statement was made “with knowledge that it was false or with
reckless disregard of whether it was false or not.” (New York
Times Co. v. Sullivan (1964) 376 U.S. 254, 280.) Reckless
disregard of the truth means that the publisher “in fact
entertained serious doubts as to the truth” of the challenged
statement. (St. Amant v. Thompson (1968) 390 U.S. 727, 731.)
To show actual malice, “‘the publisher must come close to
willfully blinding itself to the falsity of its utterance.’” (Brown v.
Kelly Broadcasting Co., supra, 48 Cal.3d at p. 747.) This is “a
subjective test, under which the defendant’s actual belief
concerning the truthfulness of the publication is the crucial issue.
[Citation.] This test directs attention to the ‘defendant’s attitude
toward the truth or falsity of the material published . . . [not] the
defendant’s attitude toward the plaintiff.’” (Reader’s Digest,
supra, 37 Cal.3d at p. 257.) Thus, “[t]he failure to conduct a
thorough and objective investigation, standing alone, does not
prove actual malice, nor even necessarily raise a triable issue of
fact on that controversy. [Citations.] Similarly, mere proof of ill
will on the part of the publisher may likewise be insufficient.”
(Id. at p. 258.)
For these reasons, whether Henreid is a public figure or
involved in a matter of public concern is “a question of law which
is crucial to the proper resolution of [a] libel claim.” (Reader’s
Digest, supra, 37 Cal.3d at p. 252.) “On appeal, the trial court’s
resolution of disputed factual questions bearing on the public
figure determination is reviewed for substantial evidence, while
8
the trial court’s resolution of the ultimate question of public
figure status is subject to independent review for legal error.”
(Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 264; see
Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at p. 747
[similar regarding public concern].)
B. The Duty To Present an Adequate Record for Review on
Appeal
An appealing party has the burden to provide the reviewing
court with an adequate and accurate record on appeal to
demonstrate reversible error. (See Estrada v. Ramirez (1999)
71 Cal.App.4th 618, 620, fn. 1 [“It is the burden of appellant to
provide an accurate record on appeal to demonstrate error.”].)
Our review of this appeal is limited by the lack of an adequate
record of the evidence and arguments, which would allow us to
review the trial court’s rulings.
“A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown.” (Denham v. Superior Court (1970)
2 Cal.3d 557, 564; see also Srithong v. Total Investment Co.
(1994) 23 Cal.App.4th 721, 725, fn. 3 [“It was of course the duty of
Srithong, as the appellant, to furnish an adequate record for
review.”].) “A necessary corollary to this rule is that if the record
is inadequate for meaningful review, the appellant defaults and
the decision of the trial court should be affirmed.” (Mountain
Lion Coalition v. Fish & Game Com. (1989) 214 Cal.App.3d 1043,
1051, fn. 9.)
Similarly, where a ruling is made following a hearing on a
motion, in the absence of a record of what transpired at the
9
hearing, we presume the trial court had before it whatever
evidence was needed to support the ruling. (See Hearn v.
Howard (2009) 177 Cal.App.4th 1193, 1201 (Hearn) [“[A]lthough
the cornerstone of several of appellant’s arguments involves what
occurred at a . . . hearing, appellant has not furnished a
reporter’s transcript of those proceedings. We must therefore
presume that what occurred at that hearing supports the
judgment.”]; see also In re Marriage of Obrecht (2016)
245 Cal.App.4th 1, 9 [defendant insisted he made a special rather
than a general appearance at an unreported hearing; in the
absence of a record “[w]e must therefore presume that
[defendant] did not limit his objections at the . . . hearing to
matters of jurisdiction, that he opposed [plaintiff’s] prayers for
relief on the merits, and that he thus submitted to the court’s
jurisdiction by making a general appearance.”]; Cal. Rules of
Court, rule 8.137(d)(2).)
As noted above, Henreid proceeded on a settled statement
(Cal. Rules of Court, rule 8.137), which requires “a condensed
narrative of the oral proceedings,” “includ[ing] a concise factual
summary of the evidence and the testimony of each witness
relevant to the points that the appellant . . . raise[s] on
appeal. . . . Any evidence or portion of a proceeding not included
will be presumed to support the judgment or order appealed
from.” (Id., rule 8.137(d)(2).)
C. Henreid Does Not Meet His Burden of Demonstrating the
Trial Court Erred in Granting the Motion in Limine
Henreid contends the trial court erred by granting Skaggs’
motion in limine deeming Henreid either a public figure or a
10
private figure involved in an issue of public interest.4 The effect
of this ruling, of course, was to require Henreid to prove at trial
by clear and convincing evidence that Skaggs acted with actual
malice when he published the defamatory statement regarding
Henreid. Based on the record before us, we conclude Henreid has
not demonstrated the trial court erred.
Henreid forfeited the issue on appeal because the record
does not reflect he filed an opposition to Skaggs’ motion in
limine.5 “As a general rule, failure to raise a point in the trial
court constitutes [a] [forfeiture] and appellant is estopped to raise
that objection on appeal.” (Redevelopment Agency v. City of
Berkeley (1978) 80 Cal.App.3d 158, 167.) A party who fails to
oppose a motion cannot challenge the order granting the motion
for the first time on appeal. (See Ferris v. Gatke Corp. (2003)
107 Cal.App.4th 1211, 1225, fn. 7 [party forfeited challenge to
nonsuit motion by failing to object at the time the motion was
made; “Assuming it was error . . ., it was error invited by
counsel’s silent failure to timely bring any objection to the trial
judge’s attention before she had ruled.”].)
4 It is unclear which of these alternatives the trial court
adopted. Henreid refers to an order deeming him a public figure,
while Skaggs refers to an order deeming Henreid a “limited
public figure in the community of Neenach” or “a Private
Individual in a Matter of Public Concern.” For present purposes
the difference is immaterial because both require clear and
convincing evidence of actual malice.
5 Skaggs’ appendix includes his motion in limine but does not
include the evidence presented in support of the motion. No
document labeled opposition to defendant’s motion in limine is
listed in the trial court’s docket.
11
As noted above, Henreid also failed to present a sufficient
record for us to review the challenged order. (See Mountain Lion
Coalition, supra, 214 Cal.App.3d at p. 1051, fn. 9; see also Hearn,
supra, 177 Cal.App.4th at p. 1201 [absent adequate record trial
court order presumed correct]; In re Marriage of Obrecht, supra,245 Cal.App.4th at p. 9 [similar].) The parties’ settled statement
provides only that, “Skaggs filed a motion in limine to determine
whether Henreid was a public figure for the purpose of the action
at issue in the trial court. That motion was presented and
granted at the final status conference on June 8, 2021.” Neither
the clerk’s transcript prepared at Henreid’s direction, nor the
appendix filed on appeal, includes the evidence the trial court
had before it when it granted the motion in limine.6 In the
absence of any showing of what evidence was before the trial
court, we presume the record supported its decision to grant the
motion and deem Henreid either a public figure or a private
figure in a matter of public concern.7
6 Even if Khawar requires an independent review of the trial
court’s ruling, our review is limited by Henreid’s failure to
present an adequate record on appeal. (Cf. Eghtesad v. State
Farm General Ins. Co. (2020) 51 Cal.App.5th 406, 411 [declining
to review whether demurrer was properly sustained; “[a]lthough
our review is de novo, it remains the burden of the
plaintiff/appellant ‘to show either that the demurrer was
sustained erroneously or that the trial court’s denial of leave to
amend was an abuse of discretion.’”].)
7 At oral argument, Henreid argued he had introduced
evidence that showed he was neither a public figure nor a private
figure involved in a matter of public concern. These record
citations do not change our conclusion because they are to
documents that were not submitted in opposition to the motion in
limine, or are to Henreid’s legal arguments, which are not
12
In any event, to the extent the settled statement can be
deemed to include the evidence before the trial court when it
ruled on the motion in limine, it supports the trial court’s ruling,
and we are obliged to presume the evidence before the court
supported the challenged ruling. The settled statement provides
that, “Skaggs testified that Henreid had been a member of the
Oso Town Council and its president for a period of time. Skaggs
testified that the Oso Town Council acted as a quasi-public entity
advising the Los Angeles County Board of Supervisors on issues
before the town of Neenach in Los Angeles County, an area of
about 500 residents between Gorman and Lancaster, California.
Its monthly meetings open [sic] to the public and covered
extensively by local media.” (Capitalization omitted.)
Henreid’s position as a town council member and former
president is sufficient for the trial court to have determined
Henreid was a public figure. (See Ghafur v. Bernstein (2005)
131 Cal.App.4th 1230, 1237 [school board member was public
figure because “[t]he designation applies where the individual’s
‘position in government has such apparent importance that the
public has an independent interest in the qualifications and
performance of the person who holds it’”]; Kahn v. Bower (1991)
232 Cal.App.3d 1599, 1613 [social worker]; Gomes v. Fried (1982)
136 Cal.App.3d 924, 934 [police officer]; Weingarten v. Block
(1980) 102 Cal.App.3d 129, 139 [former city attorney].)
Henreid also fails to demonstrate it would have been error
for the trial court to determine he was a private individual
involved in a matter of public concern regarding the candor and
evidence. (Beagle v. Vasold (1966) 65 Cal.2d 166, 176 [“It is
undeniable that the argument of counsel does not constitute
evidence.”].)
13
qualifications of those serving on the town council, particularly
given the upcoming election of Henreid’s replacement and
Henreid’s own handwritten note resigning from the council upon
an audit of the council. Whether something is an issue of public
interest is ““‘construed broadly.”’” (Gilbert v. Sykes (2007)
147 Cal.App.4th 13, 23.) “Although matters of public interest
include legislative and governmental activities, they may also
include activities that involve private persons and entities.”
(Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628,
650-651.) It even encompasses “‘activity between private
people.’” (Hecimovich v. Encinal School Parent Teacher
Organization (2012) 203 Cal.App.4th 450, 465 [communications
relating to dispute between volunteer basketball coach and
parent-teacher organization involved issue of public interest].)
Henreid relies on Grenier v. Taylor (2015) 234 Cal.App.4th
471 (Grenier), to argue he was neither a public figure nor
involved in an issue of public concern. In Grenier, a pastor and
his wife sued to recover damages for defamatory statements
accusing the pastor of child abuse. (Id. at pp. 477-478.)
Defendants filed an anti-SLAPP motion. (Id. at p. 479.) The trial
court found that child abuse was a matter of public concern and
that the pastor was a limited public figure by virtue of his
writings and religious broadcasts, but denied the anti-SLAPP
motion because plaintiffs had demonstrated a probability of
prevailing on their claims. (Ibid.) The appellate court affirmed
the order denying the anti-SLAPP motion, but reversed the trial
court’s ruling the pastor was a limited public figure. (Id. at
pp. 484-485, 487.) The court reasoned that although the pastor
“thrust himself into the public eye as an expert on the Bible and
its teachings,” that was not sufficient to make him a limited
14
public figure on issues relating to morality of private conduct
because that “would be equivalent to holding that being a
member of the clergy makes one an all-purpose public figure.”
(Id. at p. 485.) Grenier does not help Henried. Even if Henreid
was not a limited public figure as president of the Oso Town
Council, Grenier has no bearing on his status as a private figure
in matters of public concern involving the leadership and finances
of the Council.
Further, Henreid’s argument that because he sold his
property in Neenach and moved out-of-state before the date
Skaggs sent his email means he was not a public figure or had no
connection to a public issue is unpersuasive. In Cabrera v. Alam
(2011) 197 Cal.App.4th 1077, the plaintiff was a past president of
a homeowner’s association who had also sold her home and was
“not a resident, a member of the [homeowner’s] association, a
member of the association’s board of directors, or a candidate for
election” to the board when defendant falsely accused plaintiff of
defrauding the organization. (Id. at p. 1085.) The appellate court
held plaintiff was a limited purpose public figure by “thrust[ing]
herself into the controversy surrounding the election of” the
board, and that plaintiff’s complaints the board was being
mismanaged related to an issue of public interest. (Id. at
p. 1082.) As in Cabrera, the fact that Henreid no longer resided
in Neenach does not mean he was not a public figure or involved
in a public controversy at the time Skaggs sent his e-mail,
particularly because the evidence before the trial court
included—at a minimum—his prior involvement with the Oso
15
Town Council and complaints relating to financial
mismanagement requiring an audit.8
D. Henreid Does Not Meet His Burden of Demonstrating the
Trial Court Abused Its Discretion in Its Evidentiary Rulings
Henreid challenges several evidentiary rulings made by the
court during trial. We review decisions regarding admission of
evidence for abuse of discretion. (See Christ v. Schwartz (2016)
2 Cal.App.5th 440, 446-447; Pannu v. Land Rover North America,
Inc. (2011) 191 Cal.App.4th 1298, 1317.) We must also consider
Evidence Code section 354, which provides that, “A verdict or
finding shall not be set aside, nor shall the judgment or decision
based thereon be reversed, by reason of the erroneous exclusion
of evidence unless the court which passes upon the effect of the
error or errors is of the opinion that the error or errors
complained of resulted in a miscarriage of justice.”9 Under that
8 Henreid asserts the trial court erred when it instructed the
jury that it in order to find for Henreid, it had to find that he
proved actual malice by clear and convincing evidence. But he
presents no argument the jury instructions themselves were
erroneous. Henreid forfeited his argument relating to the jury
instructions by not supporting it with legal argument or citations
to supporting authority or the record. (See Sehulster
Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003)
111 Cal.App.4th 1328, 1345, fn. 16 [argument not supported
“with citation to law or the evidentiary record . . . is equivalent to
a concession”].) But even if we were to reach the argument, it
would fail for the same reasons as Henreid’s attack on the ruling
granting the motion in limine.
9 Article VI, section 13 of our state’s Constitution, provides in
relevant part that, “No judgment shall be set aside, . . . in any
cause, on the ground of misdirection of the jury, or of the
16
standard, “[t]he trial court’s error in excluding evidence is
grounds for reversing a judgment only if the party appealing
demonstrates a ‘miscarriage of justice’—that is, that a different
result would have been probable if the error had not occurred.”
(Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471,
1480.)
1. Skaggs’ discovery responses and declarations were
properly excluded at trial
Henreid argues the trial court wrongly excluded “discovery
admissions” by Skaggs and declarations Skaggs submitted in
opposition to Henreid’s summary judgment motion. There was
no error. The trial court’s June 10, 2021 minute order reflects it
admitted into evidence Henreid’s requests for admission and
Skaggs’s responses.
Henreid’s contention the trial court erred by excluding
declarations from “the recipients of Skaggs’ e-mail . . . attached
to” Skaggs’ summary judgment motion is unpersuasive. The
court’s minute orders do not reflect that Henreid offered these
declarations into evidence. Henreid cannot challenge the trial
court’s failure to admit such evidence in the absence of any
indication he sought to introduce it. In any event, the trial court
would not have abused its discretion even if it had refused to
admit the declarations at trial. “It is well established . . . that
declarations constitute hearsay and are inadmissible at trial,
subject to specific statutory exceptions, unless the parties
improper admission or rejection of evidence, . . . unless, after an
examination of the entire cause, including the evidence, the court
shall be of the opinion that the error complained of has resulted
in a miscarriage of justice.”
17
stipulate to the admission of the declarations or fail to enter a
hearsay objection.” (Elkins v. Superior Court (2007) 41 Cal.4th
1337, 1354; see Rowan v. City & County of San Francisco (1966)
244 Cal.App.2d 308, 314, fn. 3.)10
Henreid further argues the failure to admit this evidence
meant the jury unnecessarily spent time deliberating regarding
these issues and then “rushed to judgment.” Henreid posits that
had the jury considered the excluded evidence, “they probably
would have ruled differently on the questions with a heightened
burden of proof resulting from the determination that [Henreid]
was a public figure.” This contention is speculation that we
cannot accept. “No speculation can determine the basis upon
which the jury reached its verdict.” (Kovacs v. Sturgeon (1969)
274 Cal.App.4th 478, 487.)
2. The newspaper articles were properly admitted
Henreid argues the trial court wrongly admitted news
articles regarding his past charges. The trial court’s June 10
minute order reflects three such articles were admitted in
evidence: a U.S. News article from February 2018 describing the
charges for which Henreid was indicted in 1998; a Washington
Post article from the same time period and with similar content;
and an August 1999 article from the St. Louis Post-Dispatch
describing Henreid’s plea deal and sentence. Henreid concedes
the exhibits were admitted “for the limited purpose of showing
10 For the reasons discussed above, in the absence of a record
of the court’s evidentiary rulings, we must assume Skaggs made
an appropriate hearsay objection that was sustained by the trial
court.
18
the Defendant’s state of mind when he made his defamatory
statements and what he relied upon.”
The trial court did not abuse its discretion by admitting
this evidence for the limited purpose of allowing Skaggs to testify
that he believed the truth of what he stated in his e-mail. (See
Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 774 [“evidence is
“‘capable of being admitted at trial’” if it is “‘competent, relevant
and not barred by a substantive rule”’”]; see also Hart v. Keenan
Properties, Inc. (2020) 9 Cal.5th 442, 447 [“‘When evidence that
certain words were spoken or written is admitted to prove that
the words were uttered [or written] and not to prove their truth,
the evidence is not hearsay. [Citations.] “The first and most
basic requirement for applying the not-for-the-truth
limitation . . . is that the out-of-court statement must be offered
for some purpose independent of the truth of the matters it
asserts.”’”].)
Henreid argues at length the newspaper articles should not
have been admitted to show what Skaggs believed to be true
because “they do not state directly or indirectly what the
defamatory statement states. They state the opposite, i.e., that
charges were dismissed and were not convictions as the Skaggs
e-mail stated.” But as noted above, Skaggs was entitled to offer
the articles to show his state of mind. And we discern no
prejudice to Henreid because the jury agreed with him that the
e-mail statement made by Skaggs was false.
Henreid next contends the articles were admitted during
Skaggs’ cross-examination of Henreid and went beyond the scope
of his direct examination, purportedly in violation of Evidence
19
Code section 773, subdivision (a).11 The settled statement
establishes that Henreid testified on direct examination
regarding his criminal history and thus cross-examination
questions (or documents) going to his arrest and sentencing were
within the scope of his direct examination. The trial court has
wide discretion to control examination of witnesses, including
“discretion to permit the cross-examiner to go beyond the scope of
the direct examination.” (People v. James (1976) 56 Cal.App.3d
876, 887.)
Henreid’s final contention is that admitting the two articles
violated Missouri’s expungement statute, which provides that “no
such inquiry shall be made for information relating to an
expungement.” (Mo. Rev. Stat. § 610.140.8.) There are at least
two problems with this argument. First, the defamation trial
was in California, not Missouri. California’s Evidence Code, not
the Missouri expungement statute, governed the admissibility of
evidence in the trial court. (Evid. Code, § 300; Hewitt v. Superior
Court (1970) 5 Cal.App.3d 923, 927 [“[T]he Evidence Code applies
to every evidentiary hearing in the state courts.”].) Second, the
Missouri statute only addresses the confidentiality of “records
and files maintained in any administrative or court proceeding in
a municipal, associate, or circuit court for any offense, infraction,
or violation ordered expunged under this section.” (Mo. Rev.
Stat. § 610.140.8.) The news articles are not administrative or
court records. Henreid has not shown any error, let alone
prejudice amounting to a miscarriage of justice.
11 Evidence Code section 773, subdivision (a), provides, “A
witness examined by one party may be cross-examined upon any
matter within the scope of the direct examination by each other
party to the action in such order as the court directs.”
20
E. Henreid’s Appellate Motions
In this court, Henreid filed a motion for sanctions against
Skaggs’ counsel, which includes a request for unspecified
redactions in the record before us. At oral argument, Skaggs’
counsel conceded the trial court ordered certain statements
struck from the record in postjudgment briefing. The motion for
sanctions is denied. Henreid moved for sanctions under
California Rules of Court, rule 8.276(a), but he has not
demonstrated that Skaggs’ counsel violated that rule by
“(1) Taking a frivolous appeal or appealing solely to cause delay;
(2) Including in the record any matter not reasonably material to
the appeal’s determination; (3) Filing a frivolous motion; or
(4) Committing any other unreasonable violation of these rules”
in this court. Henreid also moved under rule 8.278(a)(5), but that
rule relates to “Costs on Appeal” and does not provide a basis for
sanctions.12 The request for redactions is denied without
prejudice to filing a procedurally proper motion under rule 8.46.13
12 Additionally, the litigation privilege supports denial of
sanctions. (See Civ. Code, § 47, subd. (b); Friedman v. Knecht
(1967) 248 Cal.App.2d 455, 460 [“‘An attorney at law is absolutely
privileged to publish false and defamatory matter of another . . .
in the institution of, or during the course and as a part of a
judicial proceeding in which he participates as counsel, if it has
some relation thereto.’”]; RGC Gaslamp, LLC v. Ehmcke Sheet
Metal Co., Inc. (2020) 56 Cal.App.5th 413, 435 [litigation
privilege “is absolute, providing a defense to all torts except
malicious prosecution and applying ‘to all publications,
irrespective of their maliciousness.’”].)
13 We deny the accompanying request for judicial notice as
moot.
21
Henreid separately filed a motion to recuse Presiding
Justice Perluss. That motion is denied as moot because the
Justice is not assigned to the panel on this case. In any event, we
are compelled to admonish Henreid for his inappropriate ad
hominem attacks on a justice of this court in his motion, and for
his similar attacks on the trial judge in this case throughout his
appellate briefs. Such personal attacks on bench officers are
“inexcusable.” (Fink v. Shemtov (2010) 180 Cal.App.4th 1160,
1176.) As an attorney and an officer of the court, Henreid has a
duty to “maintain the respect due to the courts of justice and
judicial officers.” (Bus. & Prof. Code, § 6068, subd. (b).)
DISPOSITION
The judgment is affirmed. The motion for sanctions is
denied, and the motion to recuse is denied as moot. Skaggs is
entitled to his costs on appeal.
MARTINEZ, J.
We concur:
FEUER, Acting P. J. EVENSON, J. *
* Judge of the Alameda County Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
22