Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. FCS022231
Margulies, J.
Bruce Portner appeals from a summary judgment granted in favor of the defendants in his defamation suit against the Fairfield Daily Republic (Daily Republic) and related defendants. We affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
In June 2003, Bruce Portner sued the Daily Republic, its owner, and three of its employees, including reporter Jess Sullivan, alleging causes of action for libel and slander. The complaint arose from a series of articles in the Daily Republic reporting on Portner’s business dealings as the owner of a minor league baseball team playing in Vacaville, as well as past business ventures in which he had been involved. Most of the articles were written by Sullivan.
Bruce Portner was the owner of the Sacramento Steelheads, a minor league team in the Western Baseball League. In 1999, he began discussions with officials of the City of Vacaville (the city) about moving the Steelheads from Sacramento to Vacaville. As part of the arrangement, a San Francisco-based development company, The Kivelstadt Group (TKG), agreed to build a baseball stadium on land known as the Nut Tree property in Vacaville, with the initial construction phase to be financed by the city. Due to construction cost overruns, a deal was eventually worked out between Portner and the city under which TKG conveyed the property to the city and the city conveyed the property to Portner for one dollar. The Steelheads began playing at the site in 2000. In December 2001, Portner requested a redevelopment loan from the city to fund improvements at the baseball park required by the county health department. Shortly before the Vacaville City Council was scheduled to vote on this request, the Daily Republic published a series of articles authored by Jess Sullivan that were critical of Portner’s past financial dealings. The matter was taken off the council’s agenda and was not further considered by the council.
In late 2001, with the 2002 Steelheads’ season in jeopardy, Portner agreed to sell the stadium and land to Curtis and Bryant Stocking for $850,000. Under the deal, the Stockings would complete the building of the stadium and the Steelheads would pay a nominal rental for its use. In August 2002, a dispute developed between Portner and the Stockings that ultimately resulted in an eviction proceeding initiated by the Stockings and a chapter 11 proceeding filed by Portner in the name of the limited liability company that owned the team. Beginning in August 2002, Sullivan published a series of articles in the Daily Republic describing Portner’s disputes with the Stockings and the ensuing state court and bankruptcy litigation.
Portner contends that several articles published in the Daily Republic in 2001, 2002, and 2003 contained defamatory statements about him.
A. The Anti-SLAPP Motion
The defendants filed an unsuccessful motion to strike Portner’s complaint under Code of Civil Procedure section 425.16 on July 28, 2003. This court affirmed the trial court’s denial of the motion in a nonpublished decision, Portner v. Sullivan (Dec. 17, 2004, A104456) (PortnerI). After additional motions to settle the pleadings, plaintiff filed a third amended complaint in November 2005, which the trial court later modified by striking, among other things, certain allegations barred by the statute of limitations. As modified by the court’s order, the complaint alleged a single cause of action for defamation based on 18 allegedly false statements in eight articles published in the Daily Republic from August 2001 to June 2003.
All statutory references are to the Code of Civil Procedure.
Section 425.16 is commonly referred to as the “anti-SLAPP statute.” “SLAPP” stands for “strategic lawsuit against public participation.” Section 425.16 was enacted in order to discourage the practice of filing retaliatory, meritless lawsuits against opponents on a public issue in order to chill their exercise of free speech. (See legislative findings in § 425.16, subd. (a).)
B. Defendants’ Summary Judgment Motions
Following discovery, each defendant moved for summary judgment and, in the alternative, for summary adjudication of plaintiff’s claims for general and punitive damages. The motions for summary judgment asserted that various defenses, including the statute of limitations, the truth of the statement in issue, and the privilege for reporting on official proceedings, barred defamation claims based on each of the 18 statements. In addition, as an overarching defense, the motions asserted that Portner could not carry his burden, as a limited purpose public figure, to produce clear and convincing evidence in opposition to the motions that any one of the 18 statements was published by any defendant with constitutional actual malice under the standard established by New York Times Co. v. Sullivan (1964) 376 U.S. 254. The motions and supporting papers sought to establish that no defendant knowingly published a falsehood or had any doubts concerning the truth of any of the 18 statements.
The supporting papers included a 25-page declaration from Jess Sullivan, the primary author of the 18 disputed statements, with over 160 pages of exhibits attached. The declaration explained the basis for Sullivan’s belief in the truth of each of the 18 statements. The exhibits—including copies of court documents and transcripts of his interviews with Portner—showed the information he relied on in preparing the articles in question. While Sullivan acknowledged minor inaccuracies in a few of the articles, he explained in each such instance why he believed the statements were true at the time they were published. According to Sullivan, the only time Portner had called such an inaccuracy to his attention before this suit was filed he had promptly apologized to Portner and the Daily Republic had published a correction. The other defendants submitted declarations stating they relied on the accuracy of Sullivan’s reporting and were aware of no facts causing them to doubt the truthfulness of the statements in issue.
Brad Stanhope, a former Daily Record reporter who authored a few of the statements in issue, also submitted a declaration explaining the basis for his reporting.
In opposition to the defendants’ motions for summary judgment, Portner did not dispute he was a limited purpose public figure. In response to defendants’ evidence of no constitutional malice, Porter cited evidence that (1) defendant William James, the editor and assistant publisher of the Daily Republic at the time of the articles in question, called Portner “the retraction king” in an e-mail to defendant Sullivan in reference to the fact that James had received more retraction demands from Portner than from any other subject of Daily Republic articles; and (2) in response to an inquiry from Sullivan to James about whether Sullivan should write another article about Portner, James wrote, “No need to ever write another thing about him except maybe his obituary.” Without further elaboration or citation of specific evidence, Portner also asserted, “There are numerous emails between Mr. James and Mr. Sullivan in which they are disparaging of Mr. Portner.”
Portner also string-cited multiple exhibits to the declarations of his attorney, Malcolm Leader-Picone, and himself, submitted in opposition to defendants’ alternative motion for summary adjudication, as well as an exhibit to the declaration of William James, which reproduces the disputed Daily Record articles and Portner’s allegations and demands for retractions. Other than the two comments made by James, and the assertion that other disparaging e-mails existed, Portner did not specify any other facts for which he was citing these sources nor did he identify where evidentiary support for his assertions about disparaging comments and e-mails could be found amongst the exhibits listed.
Portner’s separate statement response did not cite or specify any evidence showing that any of the 18 statements in issue were in fact false or inaccurate or that any of the defendants doubted the accuracy of those statements when they were published. His own declaration, cited but not discussed in his separate statement response to defendants’ assertion of no constitutional malice, addressed alleged inaccuracies in a December 11, 2001 article that was no longer in issue because it was barred by the statute of limitations.
At oral argument, Portner’s counsel explained that Portner’s opposition to the motion was based on a combination of elements no one of which would be sufficient in itself to show clear and convincing evidence of malice: (1) an asserted pattern of slanted, inaccurate reporting putting Portner in a bad light; (2) public records in Sullivan’s possession that contradicted his reporting; and (3) the e-mails showing Sullivan’s and James’s subjective ill will toward Portner.
The trial court granted the motions for summary judgment based on Portner’s failure to come forward with evidence sufficient to show actual malice on the part of any defendant. The court denied the alternative motions for summary adjudication. Judgment was entered on November 26, 2007, and notice of entry of judgment was served on December 3, 2007.
C. Portner’s Motion for Reconsideration
On the day judgment was entered, Portner moved for reconsideration of the order granting summary judgment and, alternatively, for relief from that order under section 473 due to counsel’s excusable neglect. The motion included new declarations from Leader-Picone, Portner, and Leader-Picone’s law partner. The request for relief under section 473 was based on counsel’s failure to include as part of Portner’s opposition to the motion for summary judgment the deposition testimony of Catherine Moy, a former city editor at the Daily Republic.
Because reconsideration could not be granted after entry of judgment, the court treated Portner’s motion as a motion for a new trial and, as such, denied it. This timely appeal from the judgment and postjudgment order denying reconsideration followed.
II. DISCUSSION
Portner contends the trial court erred by (1) determining the law of the case doctrine did not compel the denial of defendants’ summary judgment motions; (2) finding his showing of actual malice was insufficient to defeat the motions; and (3) failing to grant reconsideration of the motions to consider additional evidence of malice.
A. Law of the Case Doctrine
Portner argues that our 2004 ruling affirming the denial of defendants’ anti-SLAPP motion barred their subsequent motions for summary judgment under the law of the case doctrine. For this, he relies principally on Bergman v. Drum (2005) 129 Cal.App.4th 11 (Bergman). In our view, his reliance is misplaced.
1. The Bergman Case
Bergman involved an action for malicious prosecution. (Bergman, supra, 129 Cal.App.4th at p. 13.) The defendant’s anti-SLAPP motion was denied and the denial was affirmed on appeal. (Id. at p. 14.) The defendant thereafter successfully moved for summary judgment, relying on what the Court of Appeal characterized as “the same factual circumstances and arguments that he had submitted in support of his section 425.16 motion.” (Id. at p. 17.) The plaintiff appealed from the judgment based on the law of the case doctrine: “[P]laintiff asserts that there is no substantial difference between the evidence presented by the parties in connection with Drum’s motion for summary judgment and the evidence presented in support of his previous motion to strike the complaint.... [T]herefore,... since our application of the prima facie case standard has already established that she has a prima facie case for malicious prosecution, and since our previous ruling is law of the case on that issue,... the trial court necessarily erred when it granted Drum’s motion for summary judgment.” (Id. at pp. 14–15, fn. omitted.)
The Bergman court reversed the summary judgment in favor of defendant, finding the law of the case doctrine does apply when a motion for summary judgment follows the affirmance of a ruling denying a section 425.16 motion based on substantially the same evidence: “The standard for determining the merits of a defendant’s anti-SLAPP motion to strike a complaint is similar to that for determining the merits of a defendant’s motion for summary judgment. Both seek to determine whether a prima facie case has been presented by the plaintiff in opposing the motions. Thus, it was error for the trial court to grant [defendant’s] motion for summary judgment since we already determined in Bergman I that plaintiff presented a prima facie case in support of her suit for malicious prosecution.... This determination is sufficient to defeat a subsequent motion for summary judgment unless the defendant submits to the trial court, in support of such motion, additional or different evidence that would, as a matter of law, conclusively negate plaintiff’s prima facie case.” (Bergman, supra, 129 Cal.App.4th at p. 17, italics added.) The appellate court further stated, “In the absence of [defendant’s] presentation of additional or different factual or legal matter, he is not entitled to reargue the proposition that plaintiff has not presented sufficient evidence to go before a trier of fact.” (Id. at p. 21, italics added.)
Portner’s opening brief completely ignores the question central to the application of the law of the case doctrine under Bergman: whether the evidence before the trial court in this case when it decided the motions for summary judgment was substantially identical to that before the court when it heard the motion to strike. For the first time in his reply brief, Portner argues that, notwithstanding the broader exception recognized in Bergman, a summary judgment motion following an unsuccessful motion to strike only avoids application of the law of the case doctrine if it is based on “newly discovered” facts. He would have this court define “newly discovered” facts to include only those that could not with reasonable diligence have been discovered or produced in connection with the earlier motion.
We find no support for such a rule in statute or case law. The concept appears to be based on a provision of the summary judgment statute, section 437c, which provides, “[A] party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” (§ 437c, subd. (f)(2).) Portner would apparently have us assume “a prior motion for summary adjudication” for purposes of subdivision (f)(2) includes a prior motion to strike, and that “newly discovered facts” are as defined in the case law under section 1008. But that is not the law. The purpose and effect of section 437c, subdivision (f)(2) is to preclude repetitive summary judgment motions. (Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1096, fn. 3.) No case has held that it applies to bar a defendant from seeking summary judgment after bringing an unsuccessful anti-SLAPP motion, nor has any case held that “newly discovered facts” for purposes of subdivision (f)(2) means facts that could not have been discovered earlier.
The restrictive rule Portner proposes would make little sense. Anti-SLAPP motions are specifically intended to be brought promptly after the complaint is filed. (§ 425.16, subd. (f).) The very purpose of the motion is to head off claims intended to chill the exercise of free speech at the earliest practicable time. (See id., subd. (a).) All discovery is automatically stayed by the filing of the motion. (Id., subd. (g).) Portner’s rule would penalize defendants for filing anti-SLAPP motions. If the defendant did not prevail on the motion, he would most likely forfeit the opportunity to bring a summary judgment motion after conducting discovery and be forced to incur the expense of a trial. A prudent defendant would feel compelled to forego an anti-SLAPP motion, and wait until he had taken discovery and learned more about the plaintiff’s case, before seeking to have it dismissed. This would frustrate the objectives of the anti-SLAPP statute. In our view, the standard adopted in Bergman—whether the previous appellate ruling affirming the denial of the defendant’s anti-SLAPP motion was based on substantially the same facts and law as the defendant’s later summary judgment motion—is more consistent with the anti-SLAPP statute and with the law of the case doctrine than Portner’s proposed rule. That is the rule we will apply here.
2. Applicability of Law of the Case Doctrine
Our opinion in PortnerI addressed four statements contained in a single article authored by Jess Sullivan that was published on August 28, 2002. As pointed out in Portner I, it was unnecessary to determine whether Portner had a probability of prevailing on all his defamation allegations—which comprised at that stage in the litigation approximately 27 statements contained in 12 articles—because an anti-SLAPP motion may be denied if any part of his defamation cause of action is supported by a sufficient prima facie showing. Based on the record before us at the time, the four statements in the August 28 article seemed to present Portner’s strongest defamation allegations. Those allegedly defamatory statements were as follows: (1) “Portner did not know the name of the insurance company he says provided liability insurance before August 9”; (2) “Portner refused to provide proof of the previous liability insurance coverage but acknowledges the coverage ended August 9”; (3) “Portner refused to identify the compensation insurance carrier who provided coverage earlier in the year and he refused to show proof of insurance”; and (4) “Portner also refused to name the auto insurance company or provide proof of insurance for the team bus the players [used] for away games.” The defamatory implication of these statements in context, we pointed out, was that Portner was a dishonest and irresponsible businessman who had exposed the team’s fans and players to uninsured risks throughout the season and was lying about it to the press to cover his tracks.
In his declaration opposing defendants’ motion to strike, Portner essentially denied all of these assertions. Based on his denials, and certain other assertions Portner made about motives Sullivan and the Daily Republic might have for defaming him we decided Portner had come forward with sufficient evidence of actual malice to survive defendants’ motion to strike: “The facts asserted by Portner in this case would, if credited by the trier of fact, support an inference of actual malice. The differences between Portner’s version of what he told Sullivan and what Sullivan reported him as saying, are stark, not subtle. Those discrepancies alone are hard to reconcile with mere negligence or misinterpretation on the reporter’s part. Moreover, Portner has adduced some evidence of motives that Sullivan and the management of the Daily Republic might have harbored for deliberately seeking to cast him in a negative light. Portner had allegedly fired Sullivan after a two-week stint as the team’s mascot. There is also evidence from which it may be inferred that the Daily Republic had a financial motive for wanting Portner’s team out of Vacaville: the potential loss of sports section advertising revenue to a competing Vacaville newspaper.”
The evidence before the trial court concerning the August 28, 2002 article on defendants’ summary judgment motions was substantially different than the evidence used to decide the 2003 motion to strike. First, defendants offer substantial additional evidence concerning the August 28 article. Specifically, defendants provided excerpts from the deposition of Portner, taken in June 2007, in which he admitted (1) the team played without general liability insurance for portions of the 2002 season because the general liability policy was cancelled during the season for nonpayment of the premium; (2) the team had no workers’ compensation insurance until the last few games of the season, after the August 28 article was published; (3) he refused to show Sullivan documents proving that he had insurance for the team bus. Furthermore, although Portner claimed he did provide Sullivan with the name of the team’s auto insurer, defendants produced the Virginia Surety policy Portner said covered the team’s bus in 2002, which showed on its face it did not include auto insurance.
Second, and equally important, Portner submitted no declaration in opposition to the motions for summary judgment in which he denied taking the positions attributed to him by Sullivan in the August 28 article. In fact, he admitted in his deposition that he refused to give Sullivan proof of auto insurance. Based on Portner’s deposition admissions that he in fact did not have general liability and workers’ compensation insurance in place until the very end of the 2002 season (after the article was written), it also seems entirely plausible Portner would have declined Sullivan’s requests for proof of such insurance. In any event, the uncontroverted evidence before the court on these issues in connection with the motions for summary judgment was the declaration of Jess Sullivan in which he repeated his averment that Portner had in fact refused to provide him with proof of the various insurance coverages when he was writing the August 28 article.
Third, the evidence before the court concerning possible motives for the alleged defamation on the motions for summary judgment was also substantially different than that before the court on the motion to strike. When the motion to strike was heard, the trial court record contained only Portner’s averments that (1) he had fired Sullivan from a job as team mascot because he failed to show up for work after two weeks; and (2) during the Steelhead’s baseball season, many Vacaville newspaper advertisers wanting to associate themselves with the Steelheads would shift their newspaper advertising from the Daily Republic to the Vacaville paper, giving the Daily Republic a competitive motive for trying to push the Steelheads team out of Vacaville. For purposes of the motion to strike, we accepted these averments as true, and counted them as additional evidence reinforcing the inference of actual malice we drew from the prima facie evidence showing the apparent untruthfulness of the four assertions we identified in Sullivan’s August 28 article. (See Fletcher v. San Jose Mercury News (1989) 216 Cal.App.3d 172, 186 (Fletcher) [defendant’s ill will or hostility toward plaintiff, if linked to the defendant’s awareness of probable falsity, can be circumstantial evidence of constitutional malice].) But defendants’ motions for summary judgment provide new evidence concerning these alleged motives for defamation that casts them in a different light.
In his supporting declaration, Sullivan explains that he signed on to perform in costume as a team mascot in order to write an article about the team. Portner liked the idea and agreed after a tryout to hire Sullivan and two other applicants. The Daily Republic published an article about the tryout. Sullivan told the management he could only work for the first set of home games before he had to attend a journalists’ conference out of town and take a planned vacation. Before leaving for his trip, Sullivan worked at five or six Steelheads’ games, for which he was to be paid $25 per game. After his return from vacation, the team never called him again to perform at games and did not pay him until some time later. Portner, for his part, submitted no declaration in opposition to the summary judgment motions in which he repeated his claim that he had “fired” Sullivan. In contrast to the evidence cited by this court in affirming the denial of defendants’ motion to strike—Portner’s allegation that he had fired Sullivan from a job as team mascot—the undisputed facts before the trial court on the defense motions for summary judgment were that Sullivan accepted the job in order to write an article on the team, the pay involved was nominal, and Portner did not fire him.
With respect to the Daily Republic’s alleged competitive motive for forcing the Steelheads out of Vacaville, the newspaper’s editor and assistant publisher, William James, averred in his declaration in support of summary judgment that the team’s presence in Vacaville did not threaten the newspaper’s revenues. Portner in his opposition declaration did not repeat the allegations to the contrary that he made in opposition to defendants’ motion to strike. Thus, in contrast to the motion to strike, there was no evidence before the court on defendants’ motions for summary judgment suggesting an economic motive for the Daily Republic to publish defamatory statements about Portner.
In sum, the circumstantial evidence of actual malice before the court on the motion to strike, which this court relied on to affirm the denial of that motion, was not substantially the same evidence before the court on the motions for summary judgment. To the contrary, the latter motion was supported by uncontroverted evidence showing (1) the August 28, 2002 article did not falsely attribute statements to Portner that he flatly denied making; and (2) Sullivan and the Daily Republic had no ulterior motives for publishing false or unsupported statements about Portner casting him in a negative light. Under Bergman and the law of the case doctrine, the trial court was therefore not bound to deny the motions for summary judgment.
B. Evidence of Actual Malice
Even assuming this court’s holding in PortnerI did not preclude relitigation of the issue of actual malice, Portner contends he presented sufficient evidence in opposition to the motion for summary judgment that, if believed by the jury, would demonstrate clear and convincing evidence of actual malice. Portner begins his argument by proposing that the required standard for actual malice is whether the defendant has engaged in “highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers,” quoting from Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 at page 155. He asks us to reject a standard overly focused on the defendant’s subjective awareness of the probable falseness of the statements alleged to be defamatory. Portner claims the trial court went astray in this regard by “only tak[ing] into account... the defendants’ self-serving declarations that they did not harbor any doubts as to the veracity of their reporting.”
At the summary judgment stage in a limited public figure defamation case, we are concerned with two distinct evidentiary questions. First, we are concerned with the type and quantum of evidence the defendant must produce in order to shift to the plaintiff the burden of producing any evidence at all in order to defeat the motion. (See § 437c, subd. (p)(2).) Second, assuming the defendant has met its burden as the proponent of the motion, we are concerned with the type and quantum of evidence the defamation plaintiff must produce in order to establish a triable issue of material fact with respect to the issues presented by the defendant’s motion. In this case, we focus on the parties’ burdens with respect to the issue of actual malice.
In our view, the defendants in this case clearly met their burden under section 437c, subdivision (p)(2). As discussed earlier, the defendants each submitted declarations averring that no defendant knowingly published a falsehood about Portner or had doubts about the truth of any of the 18 statements in issue. The declarations also explained why defendants believed the statements were true and included documents Sullivan looked at, the transcripts of tapes he made of some of his interviews with Portner, and excerpts from Portner’s deposition in which he admitted the truth of some of the statements in question. The declarations of Sullivan and James also averred facts contradicting Portner’s previous claims that Sullivan was hostile to Portner and that the Daily Republic had a financial motive to try to force Portner’s baseball team out of business.
The plaintiff’s burden on a motion for summary judgment when the defendant comes forward with evidence negating actual malice in a public figure defamation case has been explained as follows: “[In] decid[ing] a defamation case under the New York Times test.... ‘[T]he standard of review... is whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party. Since, however, a jury verdict in a defamation case can only be supported when the actual malice is shown by clear and convincing evidence, rather than by a preponderance of evidence..., the evidence and all the inferences which can reasonably be drawn from it must meet the higher standard.’ (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252 [(Reader’s Digest)]. See Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 256–257; [citations].)... [¶] ‘ “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.” ’ (Reader’s Digest, supra, 37 Cal.3d at pp. 256–257, quoting St. Amant v. Thompson (1968) 390 U.S. 727, 731; [citation].)” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1288.)
As Portner correctly points out, actual malice may be proven by circumstantial evidence, including a failure to investigate, reliance upon sources known to be unreliable or to be biased against the plaintiff, and a failure to adhere to professional standards. (Reader’s Digest, supra, 37 Cal.3d at pp. 257–258; Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 275–276.) In general, any circumstantial evidence that has a tendency in reason to show that defendants harbored serious doubts about the veracity of the information they published would be relevant evidence of actual malice. (Evid. Code, § 210.) This would include anger and hostility toward the plaintiff if it tended to show the defendant’s awareness of the probable falsity of the information published. (Fletcher, supra, 216 Cal.App.3d at p. 186.) But evidence a defendant developed a negative or hostile view of the plaintiff as a result of his investigation or preparation of an article does not show the defendant doubted the veracity of his information, and may in fact show just the opposite—that the author learned negative information about the plaintiff in his research and believed it was true. (Reader’s Digest, at p. 260; Fletcher, at p. 186.)
In discussing his own evidentiary showing, Portner first cites the defendants’ “consistent and extensive use of false and inaccurate statements and distortions of the truth over the two year span of defendants’ articles of and concerning Mr. Portner.” However, on the issue of actual malice, neither Portner’s response to defendants’ separate statement nor his opening brief cites to any evidence he submitted in opposition to the summary judgment motion showing that defendants’ articles about him consistently contained false and inaccurate statements. Contrary to Portner’s claim in his reply brief, defendants’ evidence did not show any pattern of distortion. While defendants acknowledged inaccuracies on a handful of minor points, the thrust of their evidence was to show the reporting was accurate and well-founded. It was Portner’s burden to come forward with contrary evidence, and this he failed to do.
With exceptions not relevant here, we need not consider evidence not referenced in the separate statement of undisputed facts. (See Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116, disapproved on another ground as recognized in Kaufman & Broad Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26, 41–42; see generally San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 313–316.) In a case of this complexity we are not required to conduct a search of the voluminous record to find evidence, if any exists, that the plaintiff might have cited to meet his burden of production.
Portner next asserts that Sullivan and James had a personal animus toward him as evidenced by internal e-mails and as may be inferred from Portner’s claim that he fired Sullivan as the team mascot. Regarding the e-mails, he points specifically only to two e-mails—James’s reference to Portner as the “retraction king” and his statement in response to Sullivan’s inquiry about writing another article about Portner that there was “[n]o need to ever write another thing about him except maybe his obituary.”
As discussed earlier, Portner came forward with no evidence in response to the summary judgment motion that he fired Sullivan as mascot. Based on Sullivan’s declaration, it is difficult to attribute much significance to the fact the team never asked Sullivan to perform after he returned from his vacation. Sullivan took the position in order to write an article on the team, which he in fact did. Losing out on a $25 per game stipend does not seem like a plausible reason for a professional journalist to knowingly expose himself and his employer to the risk of liability for defamation.
The e-mails Portner refers to are also unpersuasive. James’s “retraction king” and “obituary” comments were both written after the Daily Republic had published many articles about Portner and after it had received repeated retraction demands from him. At most, the comments reflected the editor’s frustration with the amount of time he and Sullivan had to spend dealing with Portner’s complaints. Nothing about the timing or nature of the comments suggests James or Sullivan had a motive to publish articles about Portner they knew or suspected to be false. To the contrary, the comments suggest that defendants had reason to be extra careful about their facts when they wrote about Portner. Portner implies there are other e-mails disparaging of him, but he fails to identify or discuss them. Because it is Portner’s burden to show trial court error, we will assume he has put his strongest evidence forward.
In his reply brief, Portner claims one passage in an article published on August 25, 2001 is an “indisputable example of [defendants’] deliberate false reporting.” The passage, authored by Sullivan, reads as follows: “After Portner missed one court hearing in the architect’s collection lawsuit, a judge issued a warrant for his arrest. The lawyer for the architects took the unusual step of asking a judge to order Western Baseball League president Robert Linschied into court. [¶] Portner paid off the debt shortly after Linschied’s court appearance, according to court records. Portner’s arrest warrant was recalled a week later.” Each sentence in the statement is factually correct and is supported by court documents that were attached to Sullivan’s declaration. Portner now complains the passage falsely implies it took a bench warrant to get Portner to pay off his debt when, in fact, Sullivan could have inferred from the court documents that the recall of the warrant was unrelated to Portner’s satisfaction of the debt. However, while the text in question could have gone further to eliminate any ambiguity on this point, it does in fact state that the warrant arose from Portner’s failure to appear at a court hearing. We fail to see in it a deliberate effort to misrepresent the reason Portner paid off his debt.
In the third amended complaint, Portner alleges the passage is defamatory because “no arrest warrant was issued by the court” and “[t]he lawyer for the architect did not have the judge order... Linschied into court.” Both of these allegations are directly contradicted by the court documents.
Portner also faults Sullivan for not going beyond the court documents to find out and report the warrant was recalled because Portner had not in fact violated an order to appear. We note Sullivan was not a lawyer and we will not impute bad faith to him because he did not search out the reason for the recall.
Based on our independent review, the evidence Portner produced in response to the summary judgment motion, and cited in his response to the defendants’ separate statement on the issue of actual malice, fell far short of the quantum of evidence a reasonable trier of fact would find to be clear and convincing proof of malice. The trial court therefore properly held Portner failed to raise a triable issue of material fact on the issue of actual malice.
C. Motion for Reconsideration
Portner contends the trial court should have granted him a new trial in response to his post judgment motion for reconsideration because (1) the court committed an error of law by applying an overly restrictive interpretation of the actual malice standard, and (2) he was entitled to relief under section 473 due to his counsel’s oversight in failing to cite the deposition testimony of Catherine Moy in opposition to defendants’ motions for summary judgment.
Moy was an assistant city editor at the Daily Republic, who left the newspaper’s employ in December 2001. According to Portner, Moy testified in her deposition, among other things, that she had questioned and unsuccessfully sought to hold up some of Sullivan’s 2001 articles about Portner because of her doubts about their fairness and veracity, and concern about Sullivan’s motives.
We have already determined the trial court did not misinterpret the actual malice standard. In particular, we find no indication in the record the court placed too much emphasis on subjective doubt as to the veracity of defendants’ articles. As the case law makes clear, that is the focus of the actual malice standard, even though such doubt may be proven by a range of circumstantial evidence. In essence, Portner is claiming he was entitled to a new trial because his counsel failed to appreciate the potential relevance of the Moy deposition as evidence of doubts expressed within the newsroom about Sullivan’s reporting. The moving party’s failure to produce available evidence is not among the statutory grounds for granting a new trial. (§ 657.)
Defendants’ opposition to the motion for reconsideration included deposition excerpts from Daily Republic employees who worked closely with Moy and who denied she ever raised any issues whatsoever concerning Sullivan’s reporting on Portner. The opposition also included an excerpt from Moy’s deposition in which she stated that she never checked the facts in any of Sullivan’s articles about Portner because she trusted Sullivan’s work.
Portner’s argument that he was entitled to relief under section 473 is equally unavailing. As stated in Wiz Technology, Inc. v. Coopers & Lybrand (2003) 106 Cal.App.4th 1 at page 17 (Wiz Technology): “Section 473 cannot be used to remedy attorney mistakes, such as the failure to provide sufficient evidence in opposition to a summary judgment motion. (Garcia v. Hejmadi [(1997) 58 Cal.App.4th 674, 683–684 (Garcia)].) ‘There is nothing in section 473 to suggest it “was intended to be a catch-all remedy for every case of poor judgment on the part of counsel which results in dismissal.” ’ [Citation.] Counsel’s failure to understand the type of response required or to anticipate which arguments would be found persuasive does not warrant relief under section 473. [Citation.]”
In Garcia, another division of this court held it was an abuse of discretion for the trial court to vacate a grant of summary judgment based on the opposing party’s claim that his original opposition papers had inadvertently failed to correctly identify all evidence creating triable issues. (Garcia, supra, 58 Cal.App.4th at pp. 679, 685.) The court explained that in enacting section 473, “[t]he Legislature did not intend to... provid[e] an opportunity to correct all the professional mistakes an attorney might make in the course of litigating a case.” (Garcia, at p. 682.) Section 473 provides relief for attorney error “only where the mistake is one which might ordinarily be made by a person with no special training or skill... [but] an attorney acting within his or her professional capacity is held to a different standard of care and may not be excused by section 473 from errors occurring during the discharge of strictly professional duties. [¶]... [such as the] failure to timely make an argument.” (Garcia, at p. 684.) The Garcia court distinguished the case chiefly relied on by Portner here, Avila v. Chua (1997) 57 Cal.App.4th 860, where the plaintiff filed no timely opposition to a summary judgment motion due to a calendaring error, because “the case supplies little guidance in a case such as ours where opposition is filed but is insufficient on the merits.” (Garcia, at p. 683.)
The facts here are indistinguishable from those in Garcia and Wiz Technology. The trial court properly denied Portner relief based on section 473.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J. Banke, J.