Asher v. Society of Children's Book etc. CA2/8

Filed 7/12/21 Asher v. Society of Children’s Book etc. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JAY ASHER, B299303
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV01907)
v.
SOCIETY OF CHILDREN’S
BOOK WRITERS AND
ILLUSTRATORS et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, David Sotelo, Judge. Affirmed.
Fisher Law Office and Patrick L. Fisher for Plaintiff and
Appellant.
Kaufman Borgeest and Ryan and Jeffrey S. Whittington for
Defendants and Respondents.
_________________________
INTRODUCTION
Jay Asher asks us to reverse the trial court’s order granting
a special motion to strike his complaint as a strategic lawsuit
against public participation under the anti-SLAPP statute, Code
of Civil Procedure section 425.16. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Appellant Jay Asher (Asher) writes for teenagers, with four
published books, including Thirteen Reasons Why, a New York
Times best-selling novel for young adults.1
Respondent Society of Children’s Book Writers and
Illustrators (SCBWI) is a non-profit network and forum for
individuals who write and illustrate books for children and young
adults. SCBWI has more than 22,000 members worldwide, with
over 80 regional chapters. Asher was an active member of
SCBWI from 1999 until 2018, during which time he attended
numerous SCBWI conferences and served as faculty at various
SCBWI events.
Respondent Lin Oliver (Oliver) is a co-founder and the
executive director of SCBWI. Oliver was authorized to make
decisions and issue statements on behalf of SCBWI, discipline
members of SCBWI, and terminate an individual’s membership
in SCBWI. She also managed staff and personnel matters
related to SCBWI.
1 In 2017, Netflix launched a televised series based on
Thirteen Reasons Why.
2
B. Civil Complaint
On January 18, 2019, Asher filed a complaint for
defamation per se, defamation per quod, and intentional
infliction of emotional distress against SCBWI and Oliver. He
alleged the following in his complaint.
In April 2017, “an individual upset over [Asher’s] success”
sent an anonymous email to SCBWI and Oliver (collectively,
respondents), purportedly from seven female members of SCBWI.
According to the email, Asher used SCBWI to prey upon female
members of SCBWI, luring them sexually, then intimidating
them into silence by threatening and making the seven female
members feel unsafe to attend SCBWI events.
Between April 2017 and December 2017, Oliver “discussed
the accusations” written in the anonymous April 2017 email with
Asher. Asher stated the allegations in the email were “false.”
Asher disclosed to Oliver and SCBWI that while he did develop
relationships with SCBWI members, “none of the relationships
were initiated, maintained, or ended as described” in the
anonymous email. Oliver told him the email read like “sour
grapes.” They discussed Asher temporarily taking a step back
from his active role in SCBWI. Since then, “no further
investigation into the April 2017 accusations against [Asher] was
conducted.”
In June 2017, SCBWI and Oliver received an email from a
woman who identified herself by name and stated she was one of
the seven anonymous women who authored the April 2017
emails. She “stated that the accusations in the April 2017 emails
were false.”
3
In December 2017, SCBWI and Oliver received an email
from another one of the seven anonymous women who said Asher
“used threats and intimidation to keep her quiet.” Asher alleged
these allegations were false.
On February 12, 2018, Oliver delivered the following
statement to the Associated Press: “ ‘Both Jay Asher and David
Diaz were found to have violated the SCBWI code of conduct in
regard to harassment’ . . . . ‘Claims against them were
investigated and, as a result, they are no longer members and
neither will be appearing at any SCBWI events in the future.’ ”
On February 14, 2018, SCBWI issued a statement to
Publishers Weekly: “ ‘It is of paramount importance to SCBWI
that we maintain a welcoming and safe environment for all
members of our community.’ ” The SCBWI “ ‘would like to take
this opportunity to express deep regret that any harassment
occurred within the SCBWI community. We hope that our newly
crafted and detailed anti-harassment policies and procedures will
ensure that SCBWI is a safe space for everyone. We care about
our members, and put their emotional and physical safety and
comfort as our highest priority.’ ”
The February 12 and February 14, 2018 statements were
printed and distributed online to virtually every major news
outlet in the United States. Both statements were attached as
exhibits to the complaint.
Asher denied all allegations of wrongdoing and provided
SCBWI and Oliver “proof that the author of the December 29,
2017 email sexually coerced him at a SCBWI Conference and had
been harassing [him] for over a decade.” SCBWI and Oliver
“consciously disregarded this offer and did not perform any
4
investigation into whether the allegations made in the email
were true.”
Asher argued both statements to Associated Press and
Publishers Weekly were defamatory. He argued the statements
were false as he “did not violate the SCBWI code of conduct in
regard to harassment,” claims against Asher were “not
‘investigated’ as this term is commonly used and understood,”
and he was not removed from SCBWI as a result of any violation
of the SCBWI code of conduct in regard to harassment. He
argued the statement injured Asher “in his profession as an
author of novels for teenagers by painting him as a criminal
guilty of harassment.” He suffered severe humiliation, emotional
distress, physical and mental pain, and anguish. He “lost sleep
due to the inordinate amount of stress [he] has been
experiencing.” He requested the court award him general
damages, special damages, exemplary and punitive damages,
attorney fees and costs.
C. Special Motion to Strike Asher’s Complaint
On April 2, 2019, respondents filed a special motion to
strike Asher’s complaint as a strategic lawsuit against public
participation under the anti-SLAPP statute, citing Code of Civil
Procedure2 section 425.16, subdivision (e)(3).
2 Further undesignated statutory references are to the Code
of Civil Procedure.
5
According to respondents, Asher’s lawsuit “is an ill-
conceived and, ultimately, desperate attempt to blame others—
and specifically, . . . SCBWI and Lin Oliver—for the impact of the
incredibly poor decisions he has made in his personal life.” While
Asher had “a carefully crafted public persona of treating women
with respect and supporting the burgeoning #MeToo movement,”
“[i]n reality, and by [Asher’s] own admission, he was engaged in
serial extra-marital affairs taking place at SCBWI events.” On
April 18, 2017, SCBWI and Oliver received an email from a group
of seven anonymous female SCBWI members who described
Asher as “using the SCBWI conferences, and his platform as an
accomplished author, ‘to lure women into friendships and then
affairs,’ and that ‘he has left [them] with emotional distress and
trauma.’ ” Several of the seven women had confronted Asher
about his behavior, but he harassed and intimidated them into
silence, retaliating against them once their relationships/affairs
ended. As a result of Asher’s threats, the seven women said they
no longer felt safe attending SCBWI events. They explained they
sent the email anonymously because they feared for their safety
and further retaliation from Asher.3
3 The April 18, 2017 email further stated: “[H]e has left all
of us with emotional distress and trauma, which is especially
troubling considering his platform is one built on mental health
and treating people with kindness. . . . The affairs he had with
us turned serious and many women were told he planned to leave
his wife for them. This was never the case and after a while, he
moved on to other women in the organization. Several of us
confronted him on his behavior and were threatened and
intimidated into silence. [¶] While we do realize that we played a
role in our relationships with him and that we are responsible as
well, the affairs have caused much emotional turmoil and
6
Upon receiving the email and learning of these serious
allegations, Oliver “investigated their complaints.” She reached
out to Asher and his agent, Laura Rennert (Rennert), and spoke
with them. Asher confirmed to Oliver he had “engaged in
multiple extra-marital affairs with several women at various
SCBWI conferences.” Oliver explained to Asher that he could no
longer be on the SCBWI faculty. He agreed “to decline any
invitation that he received from SCBWI.” Based on these
discussions, Oliver responded to the seven complaining women’s
first email on April 20, 2017 and stated: “SCBWI has an anti-
harassment policy and we take the allegations you have made
very seriously.” Oliver informed them that Asher will not be
invited to be a guest speaker at any SCBWI events for the
indefinite future. Rennert then emailed Oliver and commended
her for Oliver’s response, stating, “Thank you again for being so
calm and reasonable in the face of the situation, and for being
willing to get on the phone to think it through and talk about the
best possible response. We are sorry you got pulled into this
situation, and appreciate your clear-headed, reasonable
approach. [¶] I think this letter back is perfect.”
The seven women, however, disagreed and found the
proposed resolution was insufficient based on Asher’s conduct.
distress in our lives. We have had divorces, it has impacted our
careers, and it has limited our ability to attend SCBWI events or
other . . . events where he may be present.” Asher “continues to
regularly destroy the mental health of many women, and he has
taken advantage of women who are themselves depressed. In
addition to the 7 of us, there are 5 other women who have also
been involved with him but we did not feel comfortable
approaching them about this letter.”
7
They wanted Asher banned from SCBWI events. They expressed
via email they would “all like to renew [their] memberships and
feel safe returning to an SCBWI conference, but if Mr. Asher is
allowed on the premises, that will not be possible.” The women
provided an example of “how he abused his influence with
SCBWI” when he claimed one of the women he had an affair with
was “a stalker and that he hardly knew her,” proceeding to
“ruin[] this woman’s reputation.” Oliver discussed the seven
anonymous women’s response with Asher and Rennert, and
explained that SCBWI needed to respect their wishes. Asher was
then banned from attending SCBWI events.
On December 29, 2017, eight months after SCBWI received
the anonymous April email, Robin Mellom (Mellom) sent another
email to SCBWI and Oliver, revealing that she was one of the
seven anonymous women. She had an affair with Asher from
2005 until 2008. She explained that even though Asher was
currently not attending SCBWI events, he was spreading rumors
about her, calling her crazy and using threats and intimidation to
keep her quiet. Asher had told others “SCBWI women are
pursuing him because of his fame . . . that these women are
preying on him and he is a victim.” He was also telling others
that Mellom alone had drafted the April 18, 2017 email and had
“made up the whole thing.”
On January 4, 2018, a story broke in the School Library
Journal (SLJ) revealing troubling reports of misconduct in the
children’s publishing industry. On February 7, 2018, a similar
story broke on the website, Medium. When the allegations
became public through independent third parties, SCBWI and
Oliver faced backlash for “apparently failing to recognize the
problem and failing to reprimand” Asher. Multiple commenters
8
on the articles “expressed their anger and disappointment in
SCBWI and [Oliver] regarding the conduct of Mr. Asher and
SCBWI’s response.”4
Respondents alleged in their motion: “Given the bombshell
nature of the SLJ and Medium articles in the publishing
industry, and the explosion of accusatory and speculative
comments to those articles, SCBWI and [Oliver] determined that
a release to the press was necessary to set the record straight”
and to explain to members that SCBWI was working diligently to
address this issue and assure their conferences would be a safe
and welcoming space for everyone. They thus “necessarily and
4 Some comments include:
“I, too, experienced predatory behavior from Jay Asher. He
uses SCBWI to find young, new writers. When I discovered his
true nature, I cut off all communication and tried to warn other
women through the whisper network. He found out and used
threats and intimidation to quiet me. Well, Mr. Asher, the
intimidation stops NOW. We will no longer whisper.”
“I can’t help but remember Jay Asher as one of Lin Oliver’s
darlings. I’m so deeply sorry to the women impacted by this. The
culture of misogyny and abuse doesn’t belong anywhere, but most
especially not in kidlit.”
“Thank you to the women who named their harassers.
SCBWI conferences are places where harassment can readily
flourish, given the power differential between people with
standing in the industry and those looking to enter it. . . . I hope
SCBWI comes up with a better reporting mechanism, as well as a
zero-tolerance policy.”
“Time for SCBWI to decide which side they are on.”
9
appropriately issued statements to the press” to “assure SCBWI
members that SCBWI takes such allegations of harassment
seriously and would work diligently to provide members a safe
and welcoming space.” Respondents then issued the February 12
and February 14, 2018 statements to the Associated Press and
Publishers Weekly, as described above.
SCBWI’s harassment policy at the time addressed behavior
such as “offensive verbal comments relating to gender, gender
identity and expression, sexual orientation, disability, physical
appearance, body size, race, religion, deliberate intimidation,
stalking, following, harassing photography or recording,
sustained disruption of talks or other events, inappropriate
physical contact, and unwelcome sexual attention.” Furthermore,
SCBWI’s code of conduct states, in relevant part: “We do not
tolerate harassment of conference participants in any form.
Harassment includes . . . deliberate intimidation, stalking,
following . . . and unwelcome sexual attention.” SCBWI reserved
the right to require anyone not complying with its code of conduct
to be barred from future SCBWI events.
Respondents contended Asher filed his complaint “to
retaliate” against them for “making statements to the press
confirming that allegations of harassment had been made against
[him] and for expelling [him] from SCBWI.” They argued Asher’s
complaint is barred by section 425.16 because it arises from
SCBWI’s and Oliver’s acts in furtherance of their first
amendment rights of petition and free speech, which is protected
activity. They further contended Asher cannot establish a
probability of prevailing on his complaint.
In support of the special motion to strike the complaint,
SCBWI and Oliver included a declaration by Oliver, a copy of the
10
email communications with the seven anonymous female SCBWI
members, a copy of Oliver’s email communications with Rennert
and Mellom, the statement to Associated Press (AP), and the
statement to Publishers Weekly (PW).
D. Asher’s Opposition to the Special Motion to Strike
On April 10, 2019, Asher filed his opposition to the special
motion to strike, and argued his lawsuit was “not intended to
punish [SCBWI and Oliver] for public participation” but was
“intended to vindicate Mr. Asher for the wrongs perpetrated
against him by” SCBWI and Oliver. Since Oliver’s “false
statements”, Asher “lost all speaking engagements . . . , lost a
Consulting Producer credit on the Netflix show based on [his]
novel, had two offers to pursue a TV show based on [his] second
novel pulled, had an offer to develop a screenplay into a TV movie
dropped, was let go by [his] literary agent, was let go by [his] film
agent, and was asked not to attend another writing conference.”
He attributed these losses to Oliver’s and SCWBI’s untruthful
comments about him.
He argued the first anonymous email was sent by only two
individuals—Mellom and Sandi Van Lieu (Van Lieu). According
to Asher, Mellom “provided [him] with numerous alcoholic
drinks” because “she knew [he] was not used to drinking alcohol”
and “coerced [Asher] into a sexual relationship by providing . . .
alcoholic drinks.”
Van Lieu and Asher met at an SCBWI event in 2009 and
started a consensual sexual relationship in 2012. Van Lieu
learned from Mellom in 2015 that she was also romantically
involved with Asher. According to Van Lieu, Mellom “pressured
and manipulated [Van Lieu] into thinking negatively about Mr.
Asher” and “talked [her] into doing something to prevent Mr.
11
Asher from continuing to have romantic relationships with
women who attended the conferences.” Van Lieu drafted an
anonymous email to SCBWI and sent the draft to Mellom. Van
Lieu believes Mellom rewrote the entire draft before it was sent
off.
On May 30, 2017, Asher and Van Lieu discussed the
anonymous email. Van Lieu disclosed to Asher that while she co-
authored the email and was one of the complaining women, the
email was untruthful in many ways. Van Lieu has “never
witnessed Mr. Asher harass women, threaten women into silence,
traumatize women.”
Asher explained to Oliver that he had “consensual, power
symmetric, extramarital affairs, but denied all allegations of
harassment.” He alleged Oliver agreed with him that “there was
no reason to believe the truthfulness of the allegations in the
anonymous email” and called the allegations “sour grapes.”
Asher’s agent Rennert “never witnessed Mr. Asher harass
women, threaten women into silence, traumatize women,” etc.,
during her time as Asher’s literary agent from 2006 until 2018.
Asher argued that SCBWI’s and Oliver’s special motion to
strike should be denied because they cannot show Asher’s
complaint arises from protected activity and because Asher can
establish a probability of prevailing on the merits.
Asher’s opposition included declarations by Asher, Van
Lieu, and Rennert.
E. Trial Court’s Ruling
On April 26, 2019, the trial court granted respondents’
special motion to strike Asher’s complaint. As to the first prong,
the court found SCBWI and Oliver had met their burden to show
the AP and PW statements come within the protection of the
12
anti-SLAPP statute. The anti-harassment statements were made
to news media PW and AP—both of which are public forums—
and were connected to an issue of great public interest during the
time of the #MeToo movement in the United States. As to the
second prong, the court found Asher had not demonstrated a
probability of success on the merits of his three causes of action.
The trial court also found the declarations of Lieu and Rennert to
be “of very little evidentiary value, almost not relevant, but they
were thrown in, in any event.”
On May 28, 2019, the trial court entered judgment in favor
of respondents.
Asher timely appealed.
DISCUSSION
A. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; Park
v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067 (Park).) “In other words, we employ the
same two-pronged procedure as the trial court in determining
whether the anti-SLAPP motion was properly granted.”
(Mendoza v. ADP Screening & Selection Services, Inc. (2010)
182 Cal.App.4th 1644, 1652.)
As always, “our job is to review the trial court’s ruling, not
its reasoning.” (People v. Financial Casualty & Surety, Inc.
(2017) 10 Cal.App.5th 369, 386.) We consider “the pleadings, and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (§ 425.16, subd. (b)(2).) In
considering the pleadings and declarations, we do not make
13
credibility determinations or compare the weight of the evidence;
instead, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has
defeated the opposing party’s evidence as a matter of law.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th
260, 269, fn. 3 (Soukup).)
B. Applicable Law
Section 425.16 provides “[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).) An “ ‘act in furtherance of a person’s right
of petition or free speech . . . in connection with a public issue’ ” is
defined in section 425.16 to include, in relevant part: “any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law,” and “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.” (Id., subd. (e).)
The Legislature enacted section 425.16 to prevent and
deter “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a).) The purpose of the
anti-SLAPP law is “not [to] insulate defendants from any liability
for claims arising from the protected rights of petition or speech.
It only provides a procedure for weeding out, at an early stage,
14
meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
When a party moves to strike a cause of action (or portion
thereof) under the anti-SLAPP law, a trial court evaluates the
special motion to strike by implementing a two-prong test:
(1) has the moving party “made a threshold showing that the
challenged cause of action arises from protected activity”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056); and, if it has,
(2) has the non-moving party demonstrated that the challenged
cause of action has “ ‘minimal merit’ ” by making “a prima facie
factual showing sufficient to sustain” a judgment in its favor?
(Baral, supra, 1 Cal.5th at pp. 384–385; Navellier v. Sletten
(2002) 29 Cal.4th 82, 93–94; see also § 425.16, subd. (b)(1)). If the
first prong is satisfied by the moving party, “the burden [then]
shifts to the [non-moving party] to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, at p. 396.)
C. Prong 1: Arising from Protected Activity
Respondents shoulder the initial burden to show that
Asher’s complaint is based on protected activity, that is, their
alleged acts were taken in furtherance of a right of petition or
free speech. (See Park, supra, 2 Cal.5th at p. 1061; see Birkner v.
Lam (2007) 156 Cal.App.4th 275, 281.) Section 425.16,
subdivision (a) itself provides that it “shall be construed broadly.”
The wording of the statute protects the right of litigants to the
utmost freedom of access to the courts without fear of being
harassed subsequently by derivative tort actions. (Feldman v.
1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479.)
15
Nowhere in Asher’s briefing on appeal does he dispute that
respondents have met their initial burden of establishing that his
complaint is based on protected activity. His briefing addresses
only step two of the anti-SLAPP analysis. “ ‘ “When an appellant
fails to raise a point, or asserts it but fails to support it with
reasoned argument and citations to authority, we treat the point
as waived.” ’ ” (Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 956; see also Paulus v. Bob Lynch Ford, Inc.
(2006) 139 Cal.App.4th 659, 685 [“Courts will ordinarily treat the
appellant’s failure to raise an issue in his or her opening brief as
a waiver of that challenge.”] We conclude Asher has conceded
this issue.
D. Prong 2: Probability of Prevailing on the Claims
The burden now shifts to Asher to show a probability of
prevailing on his three causes of action for defamation per se,
defamation per quod, and intentional infliction of emotional
distress. We conduct an inquiry into whether Asher has stated
“legally sufficient” claims and made a “prima facie factual
showing” with competent, admissible evidence sufficient to
sustain a favorable judgment on each of the challenged causes of
actions. (Baral, supra, 1 Cal.5th at pp. 384–385; Wilson v.
Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The
moving party “may not rely solely on its complaint . . . instead, its
proof must be made upon competent admissible evidence.” (San
Diegans for Open Government v. San Diego State University
Research Foundation (2017) 13 Cal.App.5th 76, 95.)
We reiterate that we do not make credibility
determinations or compare the weight of the evidence; instead,
we accept the opposing party’s evidence as true and evaluate the
moving party’s evidence only to determine if it has defeated the
16
opposing party’s evidence as a matter of law. (Soukup, supra,
39 Cal.4th at p. 269, fn. 3.)
1. Defamation Claims
Asher asserted causes of action for defamation per se and
defamation per quod as to the February statements to the AP and
PW.
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. (Hoang v.
Tran (2021) 60 Cal.App.5th 513, 531–532.) Defamation can be of
two types, libel (publication by writing) or slander (publication
orally uttered). (Civ. Code, §§ 45–46). A published statement is
defamatory if it “exposes any person to hatred, contempt,
ridicule, or obloquy, or which causes him to be shunned or
avoided, or which has a tendency to injure him in his occupation.”
(Civ. Code, § 45.)
Statements that are defamatory on their face (by
implication from the language used by the speaker) and without
the need for extrinsic explanatory matter are considered
defamatory per se. (McGarry v. University of San Diego (2007)
154 Cal.App.4th 97, 112; MacLeod v. Tribune Publishing Co.
(1959) 52 Cal.2d 536, 548–550 (MacLeod).) However, if the
reader would be able to recognize a defamatory meaning of the
statement “ ‘only by virtue of his or her knowledge of specific
facts and circumstances, extrinsic to the publication, which are
not matters of common knowledge rationally attributable to all
reasonable persons,’ ” then it is defamation per quod, not
defamation per se. (Bartholomew v. YouTube, LLC (2017)
17 Cal.App.5th 1217, 1226–1227.) Where the statements are
defamatory on their face, damages are presumed and a plaintiff
17
(here, Asher) is not required to plead or prove actual damages.
(MacLeod, at pp. 549–550.) Where the statement is deemed
defamatory per quod, plaintiff must also prove special damages.
(Id. at p. 550.)
A threshold determination in a defamation action is
whether the plaintiff is a public figure. This is understandably
uncontested as Asher is a well-known author famous for young
adult novels like Thirteen Reasons Why, later made into a
popular Netflix series.
Public figures have the “burden of proving both that the
challenged statement is false, and that [Respondents SCBWI and
Oliver] acted with ‘ “actual malice.” ’ ” (Christian Research
Institute v. Alnor (2007) 148 Cal.App.4th 71, 81 (Christian
Research).) In this context, respondents acted with actual malice
if they “publish[ed] a knowingly false statement or where [they]
‘entertained serious doubts as to [its] truth.’ ” (Ibid.) For
instance, “reliance upon sources known to be unreliable
[citations] or known to be biased against the plaintiff” and
“failure to investigate” may, “in an appropriate case, indicate that
the publisher himself had serious doubts regarding the truth of
his publication.” (Reader’s Digest Assn. (1984) 37 Cal.3d
244, 258.) A public figure plaintiff must prove actual malice by
clear and convincing evidence, meaning, the evidence must be so
clear as to leave no substantial doubt and must be sufficiently
strong to command the unhesitating assent of every reasonable
mind. (Christian Research, at pp. 81, 84.)
a. The AP Statement
Oliver/SCBWI issued the following statement to AP on
February 12, 2018: “Both Jay Asher and David Diaz were found
to have violated the SCBWI code of conduct in regard to
18
harassment. Claims against them were investigated and, as a
result, they are no longer members and neither will be appearing
at any SCBWI events in the future.” Asher argues the AP
statement was defamation per se and defamation per quod, and
he contends he has established a probability of prevailing on the
merits of said claims.
There is no doubt the AP statement is a publication, as it
was a written statement to the Associated Press.
As for falsity, Asher alleged the AP statement is false
because “the average reader of the AP statement . . . could
reasonably have the impression that Asher was guilty of
harassment based upon an investigation conducted by SCBWI”
but that no such investigation or “systematic inquiry” was
actually conducted by Oliver/SCBWI. We conclude Asher has not
produced admissible evidence to support the allegation. Asher’s
complaint itself alleges Oliver “discussed the accusations written
in the anonymous April 2017 emails” with Asher, that Asher
disclosed he developed relationships with SCBWI members, but
that “no further investigation into the April 2017 accusations
against [Asher] was conducted.” (Italics added.) By those words
themselves, Asher alleged that at least some investigation had
been conducted. In addition, Asher’s declaration discusses
multiple telephone conversations he had with Oliver about the
allegations of harassment. He and his agent initially agreed to
the ban on further participation in SCBWI events.
Yet Asher minimizes the conversations: he states Oliver
never discussed with him the allegations in Mellom’s email to
Oliver or the comments to the SLJ and Medium online articles.
He also states: “To my knowledge, neither Ms. Oliver, nor
SCBWI have ever reached out to any of my accusers to
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investigate the veracity of the claims made against me.” Italics
added.) This statement does not tell us much other than that
Asher himself does not know relevant facts. As the seven women
who accused him of harassment in the April 2017 email were
anonymous, how would Asher have confirmed with the “accusers”
whether Oliver contacted them during any investigation she
conducted. Asher states in that same declaration that he had no
contact with Oliver from April 2017 until February 2018, so how
would he have discovered or learned from Oliver whether she had
or was in the process of investigating the allegations made. We
are not persuaded. Asher has produced no admissible evidence
that the AP statement is false with respect to whether an
investigation was conducted.
Asher next argues the AP statement “painted [him] as a
criminal found guilty of harassment.” However, we draw no such
conclusion from the AP statement which says Asher violated the
SCBWI’s code of conduct regard to harassment. It does not state
he is a “criminal found guilty of harassment.” A reader would not
reasonably equate a finding of harassment by SCBWI under its
code of conduct to a court judgment finding Asher guilty of an
actual crime. Thus, Asher’s defamation claims fails in this
regard as well.
Asher offers several miscellaneous arguments, but none
convince us to reach a different conclusion. For instance, Asher
argues the only evidence respondents offered to prove Asher
committed acts of harassment are “hearsay statements,” namely,
the anonymous emails and anonymous comments on the internet.
He argues respondents did not offer sworn declarations reflecting
firsthand knowledge of Asher’s alleged misconduct. Asher’s
argument misses the point, as respondents’ only burden was to
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show that Asher’s complaint targeted protected activity at step
one of the two-step analysis for section 425.16. This they did.
Asher also argues the trial court erred by weighing
respondents’ evidence against Asher’s evidence and indulging in
inferences unfavorable to him. This argument is irrelevant as
this court reviews the issues de novo, conducting an independent
analysis of Asher’s claims.
b. The PW Statement
Respondents issued the following statement to PW on
February 14, 2018: “ ‘It is of paramount importance to SCBWI
that we maintain a welcoming and safe environment for all
members of our community.’ ” “ ‘We would like to take this
opportunity to express deep regret that any harassment occurred
within the SCBWI community. We hope that our newly crafted
and detailed anti-harassment policies and procedures will ensure
that SCBWI is a safe space for everyone. We care about our
members, and put their emotional and physical safety and
comfort as our highest priority.’ ” Asher argues the PW
statement constitutes defamation per se and defamation per
quod, and that he has shown a probability of prevailing on the
merits.
This statement to PW constitutes a written publication.
However, we again find Asher cannot demonstrate that
respondents’ statement to PW was false. This press release
generally sets out SCBWI’s priorities and announces the creation
of new sexual harassment policies. Asher presented no evidence
the information in the press release was false.
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Asher argues the PW statement is defamatory because the
language indicates that due to Asher’s alleged conduct, SCBWI
“was unable to maintain a welcoming and safe environment for
its members”; “SCBWI members were harassed”; “SCBWI was
forced to newly craft detailed anti-harassment policies and
procedures that would ensure SCBWI was a safe space for
everyone.”
We disagree. The PW statement does not mention Asher or
any other person. It carefully focuses on redress in the industry
as a whole. There is nothing defamatory to Asher on the face of
the PW statement. Asher has not shown a probability of
prevailing on his defamation per se cause of action as to the PW
statement. As well, he has produced no admissible evidence to
demonstrate that the PW statement proximately caused any of
the harm he alleged as to the defamation per quod cause of
action. Asher has not carried his burden with respect to the PW
statement.
2. Intentional Infliction of Emotional Distress Claim
To establish a cause of action for intentional infliction of
emotional distress (IIED), Asher must show: 1) extreme and
outrageous conduct by respondents with the intention of causing,
or reckless disregard of the probability of causing, emotional
distress; 2) suffering severe or extreme emotional distress; and
3) actual and proximate causation of the emotional distress by
the respondents’ outrageous conduct. (Grenier v. Taylor (2015)
234 Cal.App.4th 471, 486.) Conduct is considered outrageous
when it is “so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Ibid.)
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However, we do not analyze Asher’s probability of
prevailing on his IIED claim, as “the collapse of [Asher’s]
defamation claim[s] spells the demise of all other causes of
action” in his complaint. (Gilbert v. Sykes (2007) 147 Cal.App.4th
13, 34.) As our Supreme Court observed, “ ‘ “to allow an
independent cause of action for the intentional infliction of
emotional distress, based on the same acts which would not
support a defamation action, would allow plaintiffs to do
indirectly what they could not do directly. It would also render
meaningless any defense of truth or privilege.” ’ ” (Ibid.) Here,
Asher’s claim for IIED is based upon the same underlying acts
and protected activity as his defamation claims. We have
determined Asher cannot demonstrate a probability of prevailing
in his defamation causes of action. It follows that he cannot show
a probability of prevailing on his IIED claim.
As a final note, respondents argue they are entitled to
recover attorney fees should they prevail on appeal. (See Morrow
v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th
1424, 1446.) This issue is properly determined upon appropriate
motion to the trial court.
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DISPOSITION
The order granting respondents’ special motion to strike
the complaint is affirmed. Respondents are awarded costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
GRIMES, Acting P. J.
WILEY, J.
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