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Borgstrom v. Siegel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 6, 2012
A130331 (Cal. Ct. App. Jan. 6, 2012)

Opinion

A130331

01-06-2012

DANIEL BORGSTROM, et al., Plaintiffs and Appellants, v. DANIEL SIEGEL, Defendant and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Alameda County Super. Ct. No. RG10524638)

Plaintiffs Daniel Borgstrom, La Varn Williams and Grace Aaron (plaintiffs) appeal from an order granting defendant Daniel Siegel's (Siegel) special motion to strike plaintiffs' defamation claims under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court granted Siegel's motion on several grounds, including that plaintiffs failed to show a probability of prevailing on their claims because the statement they challenge is not a provably false factual statement. We affirm.

All further statutory references are to the Code of Civil Procedure unless otherwise indicated.

"SLAPP is an acronym for Strategic Lawsuit Against Public Participation." (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 858, superseded by statute on other grounds as stated in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478.)

B ACKGROUND

Plaintiff Daniel Borgstrom is a voting member of the Pacifica Foundation (Pacifica). Plaintiff La Varn Williams is Pacifica's Chief Financial Officer, and plaintiff Grace Aaron is the Interim Executive Director and Chair of the Pacifica Board. Borgstrom brought the instant action as a shareholder's "derivative action for defamation per se" on behalf of Pacifica, which was named as a defendant "due to procedural requirements for notice." Williams and Aaron alleged they were part of Pacifica's "new leadership," which Siegel allegedly defamed.

Pacifica is a national, nonprofit, broadcasting organization. It owns a number of radio stations in major cities, including KPFA in Berkeley. Under Pacifica bylaws, any member of the public can become a Pacifica voting member by donating $25 to a Pacifica radio station or volunteering a minimum of three hours of time.

Defendant Siegel has been involved with KPFA since the 1960's. He served as General Counsel from April 2006 through January 2009, and "briefly as Interim Executive Director" on two occasions. Siegel was elected to the KPFA Local Station Board in 2009, and began serving as a board member in 2010. Concerned Listeners for KPFA, an "unincorporated association that runs candidates for positions in Pacifica governance," was also named as a defendant.

As part of Siegel's election campaign for the KPFA Local Station Board, he submitted a statement of candidacy which was to be sent to voters with their ballots and also posted on the KPFA election Web page. His statement, which was also posted on the Concerned Listener's Web site, expressed criticism of Pacifica's termination of African-American employees from Pacifica radio stations.

Plaintiffs alleged the following portion of Siegel's candidacy statement was defamatory: "Most shockingly, [Pacifica's] new leadership is engaged in a campaign of ethnic cleansing directed at African Americans in positions of leadership in [Pacifica]. Since January, Pacifica has fired its Chief Financial Officer, the stations managers at WBAI and WPFW, and the program director at WBAI, all black men."

Les Radke, Pacifica's national election supervisor, reviewed the candidate statements. He informed Siegel the replacements for the terminated employees were all African-American, and "notified him that [he] would not put [Siegel's statement] into the election booklet since [he] thought it was libelous." Radke also removed the statement from the KPFA election Web page. Siegel responded in an e-mail: "Regardless of who replaced [the employees], the people I identified are African Americans and were fired. That is truthful." Radke asserted Siegel "begrudgingly agreed to drop 'ethnic cleansing' and state his concerns about the replacement of the four employees as his opinion." With those changes, Siegel's statement was allowed to be used in the KPFA official election publications. Siegel's "ethnic cleansing" statement, however, remained posted on the Concerned Listeners' Web site.

In their complaint, plaintiffs alleged Siegel made the challenged "ethnic cleansing" statement with malice because he knew the terminations were not racially motivated since he knew the employees had been replaced with African-Americans. They further alleged Siegel's statement damaged Pacifica's reputation and caused it to lose an estimated $30,000 in donations.

In response to the complaint, Siegel filed a special motion to strike under section 425.16. The trial court granted the motion, first finding Siegel's "ethnic cleansing" statement was protected activity under the statute because it concerned the qualifications of an opposing candidate and racially discriminatory employment practices, both of which were matters of public interest. The court also found plaintiffs had not met their burden of proving there was a probability they would prevail because Siegel's statement "cannot reasonably be read to accuse Plaintiffs of actual 'ethnic cleansing,' " and thus plaintiffs could not prove the statement was defamatory, i.e., was a provably false statement of fact. Further, the court found plaintiffs failed to show by clear and convincing evidence that Siegel made the statement with knowledge of falsity and actual malice because "[t]he mere fact that the individuals identified had been replaced on an interim basis with African American employees does not show that [Siegel] knew that the terminations were not motivated by race." The court also found Borgstrom lacked standing to bring a derivative cause of action, in any event, because Siegel's statement could not reasonably be interpreted as having been made against Pacifica.

DISCUSSION

The Anti-SLAPP Statute

The anti-SLAPP statute was " 'designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition.' " (Rosenaurv. Scherer (2001) 88 Cal.App.4th 260, 273.) The Legislature enacted the anti-SLAPP statute in response to the "disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" and declared "it is in the public interest to encourage continued participation in matters of public significance." (§ 426.16, subd. (a).) Section 425.16 provides for a special motion to strike "[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 . . . ." (§ 425.16, subd. (b)(1).)

"Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant's right of petition or free speech under the United States [Constitution] or [the] California Constitution in connection with a public issue,' as defined in the statute. (§425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).)

We review de novo the trial court's order granting Siegel's anti-SLAPP motion. (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970 (Price).) We are not bound by the trial court's analysis and will affirm the court's order if it is correct on any theory applicable to the case. (Ibid.)

Protected conduct

Plaintiffs concede Siegel's candidacy statement addressing racial discriminatory employment practices in a public forum comes within the ambit of the anti-SLAPP statute—i.e., it is a statement "in furtherance of [Siegel's] right of petition or free speech . . . in connection with a public issue." (§ 425. 16, subd. (b)(1).) Indeed, it is well established the anti-SLAPP statute protects statements about opposing candidates made during political campaigns. (See Macias v. Hartwell (1997) 55 Cal.App.4th 669, 672.)

The burden thus shifted to plaintiffs to demonstrate a probability of prevailing on their defamation claim.

Probability of Prevailing

Plaintiffs maintain they met their burden of demonstrating a probability of prevailing on their defamation claim because (1) Siegel's accusation of "ethnic cleansing" is false and (2) he knew the statement was false, raising at least a triable issue as to the malice necessary for a defamation claim against a public figure.

To establish a probability of prevailing, a plaintiff need only have " 'stated and substantiated a legally sufficient claim' " (Equilon, supra, 29 Cal.4th at p. 63.) " ' "Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' " ' " (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477-1478, quoting Wilson v. Parker (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as stated in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547.) " 'If the defendant makes that showing, the burden shifts to the plaintiff to establish a probability he or she will prevail on the claim at trial, i.e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff's favor.' [Citation.] In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence." (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.)

Defamation " '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.' " (Price, supra, 195 Cal.App.4th at p. 970, quoting 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782.) The dispositive question is "whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385 (Franklin), citing Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19 (Milkovich).)

When deciding whether a statement communicates or implies a provably false assertion of fact, a court must look to the totality of the circumstances. (Franklin, supra, 116 Cal.App.4th at p. 385.) " 'For words to be defamatory, they must be understood in a defamatory sense[, and] . . . the context in which the statement was made must be considered.' " (Id. at pp. 385-386, quoting Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261, abrogated by statute other grounds as stated in Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1606-1607.) Such contextual analysis requires the court to examine the nature and full content of the particular communication, as well as the knowledge and understanding of the audience targeted by the publication. (Baker, supra, 42 Cal.3d at p. 261.)

"[S]tatements that cannot 'reasonably [be] interpreted as stating actual facts' about an individual" are protected so as to ensure "that public debate will not suffer for lack of 'imaginative expression' or the 'rhetorical hyperbole' which has traditionally added so much to the discourse of our Nation. [Citation.]" (Milkovich, supra, 497 U.S. at p. 20.) Thus, " 'rhetorical hyperbole,' " " 'vigorous epithet[s],' " " 'lusty and imaginative expression[s] of . . . contempt,' " and language used " 'in a loose figurative sense' " have all been accorded constitutional protection. (Id. at p. 17, quoting Greenbelt Cooperative Publishing Assn., Inc. v. Bresler (1970) 398 U.S. 6, 13-14 & Letter Carriers v. Austin (1974) 418 U.S. 264, 284-286.) Satirical, hyperbolic or figurative statements are protected speech because " 'the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.' " (Franklin, supra, 116 Cal.App.4th at p. 385, quoting Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1000-1001.)

Plaintiffs assert Siegel's ethnic cleansing accusation was not hyperbole or opinion, but was a provably false factual assertion. Plaintiffs, themselves, define ethnic cleansing by reference to the American Heritage Dictionary's definition: "The systemic elimination of an ethnic group or groups from a region or society as by deportation, forced emigration, or genocide."

There is no dispute Siegel made his "ethnic cleansing" statement in conjunction with his assertion Pacifica had fired a number of high-ranking African-American employees. Thus, examining the statement in context, the audience targeted by the publication would understand the phrase "ethnic cleansing" was a hyperbolic reference to Pacifica's allegedly unlawful dismissal of African-American employees based on their race, rather than an accusation of "deportation, forced emigration, or genocide." Accordingly, Siegel's statement cannot reasonably be read to accuse plaintiffs of actual "ethnic cleansing," but was rather a " 'lusty and imaginative expression of . . . contempt.' " (Milkovich, supra, 497 U.S. at p. 17, quoting Letter Carriers v. Austin, supra, 418 U.S. at pp. 284-286.)

Plaintiffs contend Siegel's statement cannot be considered hyperbole or opinion, however, because Siegel responded to Radke's threat not to publish his candidate's statement of candidacy as follows: "Regardless of who replaced them, the people I identified are African Americans and were fired. That is truthful. [¶] I want to resolve this. If I modify my statement to indicate that it is my opinion that these firings represent ethnic cleansing, will that suffice?" Plaintiffs maintained this email demonstrates Siegel's unmodified statement was not opinion, because Siegel offered to change it to say it was opinion. Considering the context in which this exchange occurred, as well as the language and tenor of the e-mail, we conclude the only reasonable reading of it is that Siegel always viewed his choice of phraseology as hyperbolic and an expression of contempt, and was offering to do no more than spell it out.

In sum, we conclude any reasonable person reading Siegel's ethnic cleansing statement would conclude it was both hyperbole and his opinion. Plaintiffs therefore cannot establish a probability of success as to even the first element of a defamation claim—a provably false assertion of fact—and the trial court properly granted Siegel's special motion to strike. Accordingly, we need not, and do not, consider whether plaintiffs made a sufficient showing to raise a triable issue as to actual malice.

We likewise need not, and do not, reach the issue of whether Borgstrom also lacked standing to bring a derivative claim.
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DISPOSITION

The judgment is affirmed.

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Banke, J.

We concur:

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Marchiano, P. J.

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Dondero, J.


Summaries of

Borgstrom v. Siegel

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Jan 6, 2012
A130331 (Cal. Ct. App. Jan. 6, 2012)
Case details for

Borgstrom v. Siegel

Case Details

Full title:DANIEL BORGSTROM, et al., Plaintiffs and Appellants, v. DANIEL SIEGEL…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

Date published: Jan 6, 2012

Citations

A130331 (Cal. Ct. App. Jan. 6, 2012)