Opinion
F085046
01-30-2024
MIKE KARBASSI, Plaintiff and Appellant, v. ESMERALDA SORIA, et al., Defendants and Respondents
Whelan Law Group and Brian D. Whelan for Plaintiff and Appellant. Parker Taylor Law Group, Jeffrey S. Einsohn and Port J. Parker, for Defendants and Respondents.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Fresno County. No. 22CECG01710 Kimberly A. Gaab, Judge.
Whelan Law Group and Brian D. Whelan for Plaintiff and Appellant.
Parker Taylor Law Group, Jeffrey S. Einsohn and Port J. Parker, for Defendants and Respondents.
OPINION
SNAUFFER, J.
Mike Karbassi and Esmeralda Soria were opponents in the 2022 primary election for California State Assembly, District 27. In the final days leading up to the election, Soria issued a double-sided campaign mailer to certain registered voters, highlighting Karbassi's "Taxpayer Money" expenditures involving food, travel, public relations, and hiring a consultant who was "guilty of assault against a college student."
On the opposite side, the mailer depicts Karbassi's image, along with the headline, "Mike Karbassi's Actions Were Inexcusable[.]" It is followed by three text-filled boxes, respectively stating, "Guilty of battery against a student," "Arrested and cited for assault and battery of a 19-year-old female student," and" 'Was I wrong? Yes, I touched her when she didn't want to be touched.' "
Karbassi sued Soria and her campaign for defamation (collectively, Soria). Soria filed an anti-SLAPP motion (Code Civ. Proc, § 425.16), which the trial court granted in whole, and Karbassi now appeals. We reverse the order granting the anti-SLAPP motion relative only to the three text-filled boxes; the expenditure statements were properly stricken.
"A 'SLAPP' is a' "strategic lawsuit against public participation"' [citation], and special motions to strike [a complaint] are commonly referred to as '[a]nti-SLAPP motions' ...." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1007, fn. 1 (Bonni).)
Undesignated statutory references are to the Code of Civil Procedure.
BACKGROUND
Just days before the 2022 primary election, Soria's campaign distributed a twosided mailer disclosing, on one side, Karbassi's publicly-funded expenditures, including payment for "a 'Consultant' Convicted of Assault on a 19-Year-Old Female College Student." On the other side, Karbassi's image is depicted beneath the words "Mike Karbassi's Actions Were Inexcusable[.]" We refer to this side as the "Inexcusable" side, and the other side as the "Taxpayer" side-there is no front or back, page one or page two.
Mailer The mailer is reproduced in full at Appendix A. A brief summary follows.
On the Taxpayer side, the headline reads "Mike Karbassi Used Taxpayer Money to Pay a 'Consultant' Convicted of Assault on a 19-Year-Old Female College Student."
Next, it states "Fresno Councilman Mike Karbassi loves to point the finger at others with false accusations, but look what he's been hiding ...[.]" It then highlights certain expenditures in three separate paragraphs.
First, the mailer reiterates the payment to "a 'consultant' guilty of assault against a college student. See for yourself →," with the arrow pointing towards a cropped image depicting a seemingly official "INTEROFFICE MEMORANDUM" from Karbassi requesting payment for the consultant, followed by two more cropped images related to that request. This payment is further described as "bilking Fresno taxpayers .."
By "seemingly" we mean no reasonable person would have any reason to believe the document is fake.
The second paragraph highlights "$13,000 for Sushi, Donuts, Wine, Travel[.]" The last discloses billing "Taxpayers over $15,000 for 'Public Relations,'" "including $500 for a DJ." These paragraphs are respectively cited to "Karbassi's City Credit Card" and "Karbassi CD2 Taxpayer Payments[.]" At the bottom, the page asks, "What else is Fresno Councilman Mike Karbassi Hiding?"
Karbassi is the councilperson for Fresno's Council District 2.
On the other side-the Inexcusable side-is a headline declaring "Mike Karbassi's Actions Were Inexcusable[.]" It is accompanied by a large image of Karbassi predominating the right half of the page. Alongside Karbassi's image are three text-filled boxes, appearing on the left side of the page.
The first box simply states, "Guilty of battery against a student[.]" The second claims, "Arrested and cited for assault and battery of a 19-year-old female student[.]" Third, a quote appears, reading," 'Was I wrong? Yes, I touched her when she didn't want to be touched.'" Each box was sourced to local news reports.
Complaint
Karbassi quickly filed a complaint against Soria alleging a single cause of action for defamation. Specifically, he alleged "false and defamatory statements includ[ing] express and implied accusations that [he] [was] a criminal, a harasser of women, commits crimes, and causes waste of tax payer [sic] dollars unnecessarily." He explained he "discovered" the mailer "through constituents," and its publication was "outrageous, negligent, reckless, intentional, and malicious ..."
The complaint explained "[n]one of" the defamatory statements were "true," Soria knew they were "false," and they were published with "hatred and ill will ..." It concluded with a general allegation of "injury to [Karbassi's] personal, business[,] and professional reputations ..."
Anti-SLAPP Motion
Soria filed an anti-SLAPP motion, asserting "Karbassi filed [the] lawsuit to try to silence and retaliate against .. Soria's political speech on matters of public concern." The motion explained "Karbassi [had first] engaged in a campaign of attacking .. Soria-in particular her use of public funds." An example mailer from Karbassi, "attacking" Soria, was included within that motion. That example mailer depicts Soria's image, three times, with quotes above her head, saying," 'Corrupted by the greed...at the top,'" " 'No Oil and Gas Money,'" and" 'Defund the Police[.]' "
We do not suggest Soria ever uttered the statements in the purported quotes. Indeed, it appears she never made those statements, notwithstanding Karbassi's mailer depicting them as quotations rather than summary, opinion, or rhetoric. (See, generally, Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 263 ["Writers often use quotation marks, yet no reasonable reader would assume that such punctuation automatically implies the truth of the quoted material."].)
The anti-SLAPP motion then explains Soria "[f]ollow[ed] Karbassi's playbook[] and use[d] a similar format"-apparently referencing the text boxes on Soria's mailer and the quotations on Karbassi's mailer. It argued "Karbassi was free to counter . with more speech of his own," but not with a lawsuit, and broke down the complaint into two distinct claims: statements about public funds and statements about the consultant.
We likewise divide the complaint in two: public-funds statements and consultant statements.
Soria's motion argued the public-funds claims were true, citing an attached declaration with exhibits documenting those expenses. It urged verbiage claiming" 'waste'" was opinion, not fact, and voters were both entitled to the information and to reach their own conclusions. Finally, on these claims, Soria asserted Karbassi could not prove malice, i.e., no probability of success.
As to the consultant statements, Soria's motion advocated for viewing the statements on the mailer in context with the total circumstances: the entire mailer and the larger campaign itself. Specifically, Soria claimed campaign literature could" 'not be divided into segments'" and defamation could not"' "be based on snippets taken out of context." '" Finally, Soria argued the consultant allegations were "substantially true," Karbassi conceded in his complaint the mailer's criminal insinuations were not about him, and he could not prove malice.
Karbassi opposed the motion, suggesting the Taxpayer side did not "conclusively negate" the Inexcusable side. Relative to malice, Karbassi recounted "constituents contact[ing] him to denounce him" and the fact "Soria's campaign told the media that their motive was to give [him] a 'taste of his own medicine[.]'" In essence, Karbassi argued the mailer's "implications" "that [he] 'violates the public trust,' 'misuses public funds,' 'was guilty of a crime,' [and] 'is an admitted sexual predator,'" were "defamatory." He added that juxtaposing facts, omitting facts, and misattributing quotes, were all actionable, i.e., not protected opinion.
Evidentiary Objections
The parties filed numerous evidentiary objections to each other's evidence. We describe only those objections we find material to resolving this appeal.
The trial court overruled Soria's objection to Karbassi's statement that he "suffered damages as a result of the [m]ailer . . .." It sustained an objection to Karbassi's claim that "several ... constituents contacted [him] to denounce" him after receiving the mailer, particularly because he "admitted to the [local newspaper] what [he] did." Similarly, the court sustained Soria's objection to Karbassi describing he "field[ed] dozens of calls . . . where people were convinced [he was] a sexual predator." The court also sustained an objection to Karbassi proffering a statement from "Soria's [c]ampaign" to "a local media outlet" about this case in which the speaker stated," '[Karbassi was] crying like a baby because he got a taste of his own medicine.' "
The speaker's identity is unknown on this record.
Karbassi objected to evidence that the consultant's criminal action was "widely known" and the electorate "would have been very familiar with [that] case," and the underlying financial records documenting Karbassi's publicly-funded spending. These objections were sustained, with the added explanation the financial "records [were] not authenticated . . .."
Ruling
The trial court's ruling proceeded in two parts, splitting "statements regarding sexual assault" and "statements regarding use of public funds[.]" First, the court held "[i]t [was] clear that the [Inexcusable] side of the mailer . . . intentionally [sought] to make it appear like the allegations in the text boxes refer[red] to Karbassi. That intent [was] made clear" by a declaration attached to Soria's motion which stated "that the mailer was in response to Karbassi's [earlier] flier[] seeming to attribute certain quotes to Soria." The court, however, found "that the mailer [was] not defamatory because the [Taxpayer] side ma[de] clear that the person who allegedly committed the assault and battery was a consultant hired by Karbassi, not Karbassi himself."
Second, the trial court found the public-funds statements were substantially true, Karbassi was not injured by those statements, and the language describing his spending was "rhetorical hyperbole" and unactionable opinion. Finally, the court concluded Karbassi "ma[de] no showing of actual malice" because publication itself was "not evidence" and the "taste of his own medicine" statement was hearsay and otherwise "merely [disclosed] a reciprocal response ..."
DISCUSSION
In accordance with precedent, we address the mailer's public-funds statements separate from the consultant statements. (Bonni, supra, 11 Cal.5th at p. 1010.) As explained below, we find the trial court correctly granted the anti-SLAPP motion on the public-funds statements, but erred in granting it on the consultant statements.
I. Anti-SLAPP Law
"The anti-SLAPP statute is 'designed to protect [free speech] from meritless lawsuits that might chill the exercise of [the] rights to speak and petition on matters of public concern.'" (Bonni, supra, 11 Cal.5th at pp. 1008-1009.) "Pursuant to section 425.16, a party may file a special motion to strike a cause of action or particular claims underlying a cause of action that arise from activity protected by the anti-SLAPP statute." (Olson v. Doe (2022) 12 Cal.5th 669, 678 (Olson).) "To succeed in opposing a special motion to strike, the nonmoving party must 'demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.' " (Id. at p. 679, emphasis added.) This requirement is commonly known as" 'establishing a probability of success.'" (Id. at p. 678; § 425.16, subd. (b)(1).)
In every anti-SLAPP case, "[t]he moving party 'must [first] establish that the challenged claim arises from activity protected by section 425.16'; if the moving party does so, 'the burden shifts' to the nonmoving party 'to demonstrate the merit of the claim by establishing a probability of success.'" (Olson, supra, 12 Cal.5th at p. 678.) "The distribution of campaign mailers and other political literature about candidates' qualifications is undoubtedly protected activity under the anti-SLAPP statute." (Edward v. Ellis (2021) 72 Cal.App.5th 780, 789 (Edward).) Because the parties do not contend otherwise, "the only issue [presented] is whether [Karbassi] has shown a probability of success." (Olson at p. 679.) Our inquiry is accordingly circumscribed.
In other words, the nonmoving party "must show the claim has 'at least "minimal merit." '" (Bonni, supra, 11 Cal.5th at p. 1009.)" '[C]laims with the requisite minimal merit may proceed.'" (Olson, supra, 12 Cal.5th at p. 679.) "The moving party prevails by 'defeating]' the 'claim as a matter of law' ...." (Ibid.)
"Analysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the [nonmoving party], arises from protected activity or has merit. Instead, courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion." (Bonni, supra, 11 Cal.5th at p. 1010.)
"The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the [nonmoving party] has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the [nonmoving party's] evidence as true, and evaluates the [moving party's] showing only to determine if it [prevails] as a matter of law." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385 (Baral).)
"The anti-SLAPP statute describes what evidence a court may consider . . .. It provides that '[i]n making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 941, emphasis omitted (Sweetwater); § 425.16, subd. (b)(2).) "[T]he court may consider affidavits, declarations, and their equivalents," however, only "if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection." (Id. at p. 949.)" 'We review de novo the grant or denial of an anti-SLAPP motion.'" (Id. at p. 940.)
II. Defamation Law and Public Figures
"[D]efamation 'involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.'" (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) "When, as here, the plaintiff is a public figure, he [or she] cannot recover unless he [or she] proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with 'knowledge that it was false or with reckless disregard of whether it was false or not.'" (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 510 (Masson); People v. Stanistreet (2002) 29 Cal.4th 497, 505 (Stanistreet).)
"In determining whether the disputed statement communicates or implies a provably false assertion of fact, we look at the totality of the circumstances, looking first to the language of the statement and whether it was understood in a defamatory sense, and then considering the context in which the statement was made. [Citation.] We focus not on the literal truth or falsity of each word in a statement, but rather on '" 'whether the "gist or sting" of the statement is true or false, benign or defamatory, in substance.'"' [Citations.] We also consider 'whether the reasonable or "average" reader would so interpret the material. [Citations.] The "average reader" is a reasonable member of the audience to which the material was originally addressed.'" (Edward, supra, 72 Cal.App.5th at pp. 790-791.) "The critical question is not whether a statement is fact or opinion, but' "whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." '" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1370.)
III. Public Funds Statements
Karbassi suggests the public funds statements are defamatory because they imply "that the expenditures were a misuse of public funds . . .." We disagree.
The gist here is that Karbassi uses taxpayer money to purchase items like food and wine. Those statements appear uncontested. The literal verbiage, that Karbassi "was ... bilking Fresno taxpayers," is opinion and rhetoric, not fact." '[H]yperbole, distortion, invective, and tirades' are 'a part of American politics,' and while providing protection for such speech may allow 'candidates and their supporters to express . . . the most vile sentiments,' it is nevertheless necessary in order to ensure the 'opportunity to criticize and comment upon government and the issues of the day.'" (Issa v. Applegate (2019) 31 Cal.App.5th 689, 709 (Issa).)
"A political challenger must be afforded leeway to characterize the conduct of his opponent, even if such characterization takes the most negative perspective, in order to ensure 'uninhibited, robust, and wide-open' debate on public issues . . .." (Issa, supra, 31 Cal.App.5th at p. 709 .) Though" 'many political campaigns are mean-spirited affairs that shower the voters with invective instead of insight,' it nevertheless remains beyond question that in order 'to ensure the preservation of a citizen's right of free expression, we must allow wide latitude.'" (Id. at p. 705.)
Karbassi cannot succeed as a matter of law. The Taxpayer side of the mailer fits comfortably within the boundary, and fidelity to political discourse requires striking the public-funds statements from the complaint.
Karbassi specifically takes exception to the facts the $500 DJ expense involved a different councilperson, and that his purchases were otherwise lawful and legitimate. Soria proffered more than 100 pages of financial records as evidence within which the $500 DJ expense was ascribed to Karbassi. As noted, the trial court declined to consider the records because they were not "authenticate[d.]" Authenticity is not an insurmountable bar to considering evidence at an anti-SLAPP hearing and those records, if considered, negate malice as a matter of law. (Sweetwater, supra, 6 Cal.5th at p. 949 [may consider evidence "if it is reasonably possible [it] will be admissible at trial"];Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1147-1148 ["high probability" "authentication problems" could be "overcome" "at trial" permitted court to consider evidence at anti-SLAPP hearing].) In any event, the $500 DJ expense adds nothing to the overall expenditures totaling "over $13,000" and "over $15,000." The gist remains the same and an"' "erroneous statement is inevitable in free debate[.]" '" (Stanistreet, supra, 29 Cal.4th at p. 505.) As for the fact Karbassi was allowed to spend public money on food and wine, etc., Soria was free to comment on that spending. "To charge a breach of ethics is not to charge a breach of the law." (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 952.) In other words, "a citizen could possess the belief that such a [practice] violates a higher code of ethical precepts." (Ibid.)
IV. Consultant Statements
On the consultant-statements claim, Karbassi argues the anti-SLAPP motion must fail unless "no reasonable reader would take the [criminal] allegations as referring to [him]." Soria counters that Karbassi's interpretation "only makes sense if" the Inexcusable side "is read in complete isolation from the [Taxpayer] side and without any context to the larger, ongoing political debate ..." She contends the mailer "made it very clear that the convicted assailant was the consultant and that Karbassi's conduct in paying him was inexcusable ..." (Emphasis added.)
We disagree with Soria. The Taxpayer side does not "ma[k]e it very clear"-as a matter of law-the mailer's criminal allegations refer solely to the consultant and not to Karbassi. (See Olson, supra, 12 Cal.5th at p. 679 ["The moving party prevails by 'defeating]' the 'claim as a matter of law' ...."].) As explained below, Karbassi's complaint demonstrates the requisite minimal merit to proceed because his interpretation-that the Inexcusable side refers to himself-is minimally reasonable and supported by potentially admissible evidence. Because the only defamation elements in dispute are falsity and malice, we address those elements in turn.
The parties have not disputed any other element and our independent review reveals no concern at the anti-SLAPP stage.
A. Implied Falsehood
" 'In determining whether a statement is [defamatory] we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the communication.' [Citation.] '" '[I]f the defendant juxtaposes [a] series of facts so as to imply a defamatory connection between them, or [otherwise] creates a defamatory implication ... he [or she] may be held responsible for the defamatory implication, ... even though the particular facts are correct.'"' [Citation.] The 'pertinent question' is whether a 'reasonable fact finder' could conclude that the statements 'as a whole, or any of its parts, directly made or sufficiently implied a false assertion of defamatory fact that tended to injure' [the] plaintiff's reputation." (Issa, supra, 31 Cal.App.5th at p. 703.)
Here, the mailer involves true facts concerning the consultant, but the Inexcusable side reasonably implies they relate to Karbassi. Indeed, the trial court's ruling recognized "[i]t is clear that the side of the mailer with the photo of Karbassi intentionally seeks to make it appear like the allegations in the text boxes refer to Karbassi."
The trial court erred, in our view, when it proclaimed the Taxpayer side made clear the Inexcusable side, including the purported confession, referred exclusively to the consultant. Its finding that the criminal perpetrator's identity was clarified represents a factual resolution it was not entitled to make at this stage. (Baral, supra, 1 Cal.5th at p. 384.)
We do not imply the trial court's interpretation is unreasonable; we simply believe interpretation in this case involves factual resolution forbidden by statute on an anti-SLAPP motion.
For example, reasonable factual questions presented by the mailer include the facts the Taxpayer side mentions an "assault" conviction but the Inexcusable side mentions a "battery" conviction, an arrest for "assault and battery," and a confession to a salacious crime: "Yes, I touched her when she didn't want to be touched." There is insufficient clarity the perpetrator in each was the consultant, or that Karbassi did not also commit the acts or a separate but distinct and similar act.
Soria casts these points aside, contending that "outside of lawyers and law enforcement, it is unlikely any member of the public would appreciate or comprehend" the difference between assault and battery. Even if that were true, there remain reasonable questions about whether Karbassi committed some illicit act.
"The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense." (MacLeod v. Tribune Pub. Co. (1959) 52 Cal.2d 536, 549; John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1315 [publication judged" 'not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of [the] reader.' "].)
"Of course, that is not the only possible reading of the mailers. We recognize an average reader might reach some other conclusion. But if the statements contained in the mailers are susceptible of both an innocent and [defamatory] meaning, it is" not properly subjected to an anti-SLAPP motion. (Edward, supra, 72 Cal.App.5th at p. 791, fn. omitted.)
B. Malice
"Although at trial a public figure plaintiff must establish actual malice by clear and convincing evidence, in the context of an anti-SLAPP motion the plaintiff must instead establish only a 'probability' that he or she can produce clear and convincing evidence of actual malice." (Edward, supra, 72 Cal.App.5th at p. 793.)" '[A]ctual malice can be proved by circumstantial evidence.' [Citation.] Considerations such as 'anger and hostility toward the plaintiff,' '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.' [Citation.] Such evidence is relevant 'to the extent that it reflects on the subjective attitude of the publisher,' and failure to investigate, without more, generally is insufficient." (Billauer v. Escobar-Eck (2023) 88 Cal.App.5th 953, 978.)
Here, Karbassi's showing demonstrates the necessary probability of proving actual malice. The trial court erred in rejecting evidence Soria's campaign publicly stated it was providing Karbassi" 'a taste of his own medicine[.]'" That statement is neither "categorically barred [n]or [do] undisputed factual circumstances show [its] inadmissibility . ..." (Sweetwater, supra, 6 Cal.5th at p. 949.) Its consideration is certainly circumstantially relevant and probative of malice. It is true the trial court went on to state this evidence "merely" indicated "a reciprocal response _." Reciprocity, however, is not inconsistent with malice.
Whether that statement is ever admitted into evidence, i.e., presented to a trier of fact, at a hypothetical trial is a different question.
We do not suggest Karbassi acted with malice on an earlier occasion. Rather, we simply point out reciprocity is irrelevant.
Further buttressing the probable-malice showing is the fact Karbassi alleged several constituents, i.e., average readers, understood the mailer to describe Karbassi's criminal conduct, and understood that conduct in a sexual manner. The trial court, again, declined to consider these allegations. Again, these rulings represent an overly restrictive view of evidence at an anti-SLAPP hearing. (§ 425.16, subd. (b)(2) ["the court shall consider the pleadings, and supporting and opposing affidavits"] Sweetwater, supra, 6 Cal.5th at p. 949 [evidence may be considered unless "categorically barred" or indisputably inadmissible].)
In the anti-SLAPP context, the law recognizes "it may not be practicable for a plaintiff to obtain declarations from various witnesses _." (Sweetwater, supra, 6 Cal.5th at p. 943.) This accommodation is due to the fact "[a]n anti-SLAPP motion is filed early in the case, usually within 60 days of service of the complaint," and "[d]iscovery is stayed once the motion is filed." (Ibid.) "To strike a complaint for failure to meet evidentiary obstacles that may be overcome at trial would not serve the [statute's] protective purposes." (Id. at p. 949.)
We believe the fact average readers actually understood the mailer in a defamatory manner is circumstantially relevant to Soria's state of mind in publishing the mailer, i.e., it is evidence Soria intended some readers to misattribute a confession, and criminal conduct, to Karbassi. (See Masson, supra, 501 U.S. at p. 510 [malice requires the plaintiff to "demonstrate that the author 'in fact entertained serious doubts as to the truth of his publication' "].) There is no doubt Soria knew Karbassi had not committed a crime but nonetheless published the mailer in this exact format. (Cf. id. at p. 511 ["a fabricated quotation of a public official admitting he had been convicted of a serious crime when in fact he had not" may give rise to a defamation claim].)
By "intended to" we only mean it is some evidence demonstrating minimal merit in the anti-SLAPP context. We do not suggest Soria acted with malice-that question is not on review.
V. Conclusion
Nothing in this opinion represents a view on the ultimate outcome of this case. We do not decide that Soria has defamed Karbassi. Nor do we decide that Karbassi has proven, or will prove, his case. We conclude only that Karbassi has demonstrated the "minimal merit" necessary to survive an anti-SLAPP motion on the consultant-statements claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93 [anti-SLAPP "statute poses no obstacle to suits that possess minimal merit."]; § 425.16, subd. (b)(3) [anti-SLAPP ruling not "admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected ... in any later stage of the case or in any subsequent proceeding."].)
For example, a hypothetical defendant may prevail by simply disavowing malice, but a trier of fact ordinarily decides that issue. (See, e.g., St. Amant v. Thompson (1968) 390 U.S. 727, 732 ["The finder of fact must determine whether the publication was indeed made in good faith."].)
DISPOSITION
The September 14, 2022, order granting the anti-SLAPP motion is vacated. The trial court is directed to enter a new order consistent with this opinion. Each party to bear its costs. (Cal. Rules of Court, rule 8.278(a)(5).)
WE CONCUR: DETJEN, Acting P. J. DE SANTOS, J.
APPENDIX A
(Image Omitted)