Opinion
B324638
10-31-2024
EDWARD H. LIVINGSTON, Plaintiff and Appellant, v. AMERICAN MEDICAL ASSOCIATION, Defendant and Appellant
Daniel M. Graham for Plaintiff and Appellant. Bergeson LLP, Rebecca N. Kaufman and Susan E. Bower for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEALS from an order of the Superior Court of Los Angeles County, No. 22STCV09441 Curtis A. Kin, Judge. Affirmed in part and reversed in part.
Daniel M. Graham for Plaintiff and Appellant.
Bergeson LLP, Rebecca N. Kaufman and Susan E. Bower for Defendant and Appellant.
WEINGART, J.
In February 2021, plaintiff and appellant Dr. Edward H. Livingston, an editor of the Journal of the American Medical Association (JAMA or the journal), recorded an episode of the JAMA Clinical Review podcast titled "Structural Racism for Doctors-What Is It?" During the podcast, Livingston acknowledged that members of some racial and ethnic groups suffer disproportionately from a lack of access to medical care, but expressed worry that the use of the term "racism" in describing the problem might be counterproductive. Livingston stated that structural racism was "an unfortunate term to describe a very real problem" and that it was "more of a socioeconomic phenomenon." A JAMA editor used provocative language in social media posts advertising the podcast, stating "No physician is racist, so how can there be structural racism in healthcare?" A firestorm of controversy ensued, leading defendant American Medical Association (AMA), the publisher of JAMA and the podcast, to demand Livingston's resignation.
After acceding to the resignation request, Livingston sued, alleging causes of action for wrongful termination, defamation, intentional infliction of emotional distress, and invasion of privacy. AMA filed a special motion to strike the complaint under Code of Civil Procedure section 425.16 (the anti-SLAPP statute). The trial court granted the motion in part, finding that all of Livingston's causes of action arose from activity protected under the statute, and that Livingston had demonstrated a probability of prevailing on only one part of his claims.
Unless otherwise specified, subsequent statutory references are to the Code of Civil Procedure.
Accordingly, the trial court struck large portions from the complaint.
Both sides appeal the trial court's order. AMA contends Livingston failed to demonstrate a probability of prevailing on any of his claims, and that the trial court therefore should have struck the complaint in its entirety. Livingston argues the opposite, that the trial court should have denied the motion in its entirety, or at least should have granted him leave to conduct discovery to support his claims before ruling on the motion. We disagree with both sides' challenges and affirm the trial court's order with one exception: we reverse one portion of the order striking Livingston's claim for false light invasion of privacy.
In its appellate brief, AMA additionally argues that it is entitled to an award of attorney's fees under section 425.16, subdivision (c)(1) as the prevailing defendant in an anti-SLAPP motion. This appeal is from the trial court's order on the anti-SLAPP motion, not from an order regarding attorney's fees, and we therefore express no view as to attorney's fees.
FACTUAL BACKGROUND
The podcast at the center of this case, which was published on February 23, 2021, consisted of an interview between Livingston and Dr. Mitch Katz, who was himself an editor of a JAMA publication as well as the president and CEO of New York City Health and Hospitals. At the outset, Livingston professed unfamiliarity with the concept of structural racism. Katz explained that structural racism does not refer to racist beliefs among individuals, but rather "to a system in which policies or practices or how we look at people perpetuates racial inequality.... [T]his is about how, as a society, we perpetuate inequality." As an example, Katz described how truck routes often go through lower income neighborhoods, causing higher rates of asthma among the residents of those neighborhoods who are disproportionately members of minority groups as a result of continuing segregation.
Livingston responded, "I think the term racism might be hurting us because . . . I don't feel I'm a racist.... Yet, I feel like I'm being told I'm a racist in the modern era because of this whole thing about structural racism. But what you're talking about isn't so much racism as much as that there are populations, that it's more of a socioeconomic phenomenon, that [people] have a hard time getting out of their place because of their environment. And it isn't their race, it isn't their color, it's their socioeconomic status, it's where they are." Later, Livingston again suggested that the term "structural racism" could prove counterproductive because "people do have this response . . ., 'I'm not a racist. So, why are you calling me a racist? And . . . because they respond that way, they're turned off by the whole structural racism phenomenon. Are there better terms we can use? Is there a better word than racism?"
Katz replied, "There may well be. I don't know it. Again, when I describe it I always try to get people to focus on the structural part of it. And to help people see that the issue is not trying to tell people how to think, which I think will always fail."
Livingston then asked, "[W]hat do we do to end structural racism or try to address it the best we can?" Katz answered, "We acknowledge that it exists. So, and again, that's why I make the distinction. Acknowledging structural racism does not mean saying that I'm a racist. It means saying that our country's policies need to be changed."
The interview ended, and Livingston concluded the podcast with a final monologue in which he stated, "Structural racism is an unfortunate term to describe a very real problem. There are structural problems in our society. As Dr. Katz pointed out, there are neighborhoods that are impoverished, the quality of life is poor in those areas because we may put factories in them or have major thoroughfares that travel through them. But we strive to have a society that's more equal, where everybody has the same opportunities so that hard working people can improve those neighborhoods and make them better for the people who live there. The racism part means that in those poor areas there tends to be a disproportionate share of certain kinds of races, such as Blacks or Hispanics. They aren't there because they're not allowed to buy houses in better neighborhoods or they can't get a job because they're Black or Hispanic-that would be illegal. But disproportionality does exist. And we as a society need to figure out why that occurs, and how to make conditions better for the people who live in structurally undesirable circumstances. Personally, I think taking racism out of the conversation would help. Many people like myself are offended by the implication that we are somehow racist. When many of us grew up in an era where there had been racism and much progress had been made in ameliorating racism via dramatic legislation that was passed in the 1960s. I think the population at large would be more accepting of this general concept if we concentrated on the structural part of it and ensured that all people who lived in these disadvantaged circumstances have equal opportunities to become successful and have better qualities of life. The focus must be on equal opportunity and making sure that that exists."
The following day, a JAMA editor sent a tweet advertising the podcast on JAMA's official Twitter account, stating, "No physician is racist, so how can there be structural racism in healthcare?" The editor also posted a notification on the podcast's landing page stating, "Many physicians are skeptical of structural racism." Soon afterward, the podcast became swept up in online controversy. On March 4, 2021, Dr. Aletha Maybank, AMA's chief health equity officer, wrote on Twitter, "JAMA has complete editorial independence from AMA so this would not come to me or my team for review[.] The podcast/tweet are/were wrong, absolutely appalling &at its very core is a demonstration of structural &institutional racism. I am furious. It's harmful for everyone [in] the field of medicine &even more so harmful for my Black, Indigenous, Latinx, Asian &other historically marginalized colleagues, friends, &families. It is harmful for my team &all of the other folks within the AMA who have been fighting hard &daily against racism &white supremacy to change culture, structures, &norms. I knew full well that coming to this space to lead this work was in no way going to be easy, just only necessary. I am clear this impacts the credibility of the AMA &the Center for Health Equity."
The same day, Dr. James L. Madara, the CEO of AMA, published the following statement: "The AMA's House of Delegates passed policy stating that racism is structural, systemic, cultural, and interpersonal and we are deeply disturbed-and angered-by a recent JAMA podcast that questioned the existence of structural racism and the affiliated tweet that promoted the podcast and stated 'no physician is racist, so how can there be structural racism in health care?' JAMA has editorial independence from AMA, but this tweet and podcast are inconsistent with the policies and views of AMA and I'm concerned about and acknowledge the harms they have caused. Structural racism in health care and our society exists and it is incumbent on all of us to fix it."
JAMA's editor-in-chief, Dr. Howard Bauchner, deleted the tweet promoting the podcast on March 4 and removed the podcast itself from publication on March 8. Bauchner also asked Livingston to resign, which he did on March 9.
On March 10, Madara published another response, this time an article on the AMA Web site that described the podcast as "harmful" and stated that it "minimized the effects of systemic racism in health care and questioned its profound impact on millions of people across our country." Madara continued: "To be clear, structural racism exists in the U.S. and in medicine, genuinely affecting the health of all people, especially people of color and others historically marginalized in society. This is not opinion or conjecture, it is proven in numerous studies, through the science and in the evidence."
On March 16, Bauchner spoke about the podcast during a livestream broadcast on JAMA's YouTube channel. Bauchner said, "The language of the tweet, as well as portions of the podcast, do not reflect my commitment as editorial leader of JAMA and the JAMA Network to call out and discuss the adverse effects of injustice, inequity and racism in medicine and society. I take full responsibility for these lapses and sincerely apologize for both the lapses and the harm caused by both the tweet and aspects of the podcast. The comments made in the podcast were inaccurate, offensive, hurtful, and inconsistent with the standards of JAMA. I want to be clear that racism and structural racism exist in the United States and in healthcare." On March 25, Bauchner was placed on administrative leave and subsequently resigned from his position.
On March 27, Maybank sent another tweet regarding the podcast, quoting from an article by Dr. Clarence C. Gravlee in an online publication called Somatosphere. Maybank wrote," 'toll that racism takes.[ ]At best, it is a distraction, a theft of energy &time; at worst, a form of gaslighting[.]' [¶] 'Is there a better word than racism? . . . There may be. How about "white supremacy?"' [¶] Excellent analysis &piece by @lancegravlee (Image Omitted)." (Ellipses in original.) Maybank included a hyperlink to the Somatosphere article in the tweet.
We take judicial notice of the Somatosphere article, which is published at <https://somatosphere.com/2021/how-whiteness-works.html/> (as of October 31, 2024). We also take judicial notice of the full text of Maybank's tweet, which is published at <https://twitter.com/DrAlethaMaybank/status/1375924780654854 153?s=20&t=ra_nxkgnBy-JeqPps6wKOw>(as of October 31, 2024). Only a portion of the tweet appears in the record.
On April 21, Time magazine published an article written by Maybank and three co-authors, including Dr. Fernando de Maio, the director of health equity research and data use at AMA's Center for Health Equity. The article was titled, "The World's Leading Medical Journals Don't Write About Racism. That's a Problem." The article cited statistics showing that leading medical journals rarely published articles about racism and advocated for their greater inclusion. The article also contained the following sentence: "JAMA-a journal recently thrust into public discourse after its editor-in-chief was placed on administrative leave for sponsoring a podcast that denied the existence of structural racism in medicine-has not published a single empirical study measuring racism in the 30 years we looked at."
PROCEDURAL HISTORY
Livingston filed his complaint on March 17, 2022. In the operative first amended complaint (FAC), Livingston accused Maybank, Madara, and other AMA employees of making false statements about him and the podcast. Some of these allegations referred to statements in the public record, such as Maybank's tweets about the podcast, the Time magazine article, and Madara's published statements. Other allegations, however, lacked any specific information regarding their origins. For example, Livingston alleged that "On or about March 31, 2021, . . . Maybank participated in a social media discussion where she failed to dispute and encouraged participants to accept her interpretation of the podcast that denied the existence of structural racism in medicine" (capitalization omitted). In addition, Livingston alleged that JAMA's executive editor, Dr. Phil Fontanarosa, "has repeatedly and consistently up to December, 2021, if not later, . . . communicated to multiple members of the medical community . . . that the podcast was an act . . . which is as serious as [Livingston] committing medical malpractice or scientific research misconduct justifying . . . Livingston's forced resignation" (capitalization omitted). The record contains no documentation or evidence regarding these amorphous allegations.
AMA filed a special motion to strike the complaint, arguing that all of Livingston's claims arose from activity protected by the anti-SLAPP statute, and that Livingston had failed to show a probability of prevailing on any of his claims. AMA argued that most of Livingston's defamation claims were time-barred because the statute of limitations for libel and slander is one year (see § 340, subd. (c)), and the statements at issue were made more than one year before Livingston filed his initial complaint.
In deciding the special motion to strike, the trial court separated Livingston's allegations of defamation into 11 separate statements. The court concluded that all 11 statements constituted protected activity under the anti-SLAPP statute because they "were made in connection with an issue of public interest." (§ 425.16, subd. (e)(3).) The court stated that all 11 statements were" 'made in a place open to the public or a public forum'" (ibid.), and that the subject of structural racism in health care is a matter of public interest. The court also found that AMA's decision to terminate Livingston's employment was protected activity because it was "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)(4).)
Next, the court concluded that Livingston had failed to show a probability of prevailing on most of his claims. Because AMA is not a governmental actor, the court concluded that AMA's decision to terminate Livingston's employment did not violate the federal and state constitutional guarantees of free speech. The court found Livingston's causes of action for violation of his right to privacy also failed because public criticism of Livingston's statements on a publicly available podcast did not implicate any right to privacy. As to the allegations of libel and slander, the court concluded that Livingston could not succeed regarding several of the allegedly defamatory statements because he had failed to file suit within the one-year statute of limitations for defamation. (§ 340, subd. (c).) Three more of the claims failed because Livingston failed to identify whether the statements were written or oral and did not specify the exact language of the statements or the dates on which they were made. Finally, the court concluded that Maybank's tweet," 'Is there a better word than racism? . . . There may be. How about 'white supremacy'?" was not actionable because it was constitutionally protected as a statement of opinion rather than fact.
The court reached a different conclusion as to one alleged defamatory statement, which the court listed as "[s]tatement No. 3." That statement, from the Time magazine article, stated that JAMA's "editor-in-chief was placed on administrative leave for sponsoring a podcast that denied the existence of structural racism in medicine." The court stated that "a trier of fact could find that Maybank's statements refer to [Livingston], who hosted" the podcast, and further "could thus find that [Livingston] advocated for a nuanced discussion concerning structural racism (or, conversely, had a naive understanding of structural racism), but did not deny its existence. Thus, [Livingston] has sufficiently demonstrated that [AMA] may have made a demonstrably false statement about him."
The trial court thus found that Livingston's causes of action for libel and intentional infliction of emotional distress survived as to statement No. 3, but struck the other portions of the complaint at issue not related to that statement.
DISCUSSION
"The Legislature enacted . . . section 425.16 to address so-called strategic lawsuits against public participation (SLAPP). [Citation.] [The] anti-SLAPP statute makes available a special motion to strike meritless claims early in litigation-but only if the claims arise from acts in furtherance of a 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).)" (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 139, fn. omitted.) The statute identifies four categories of acts that constitute protected activity: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) 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." (§ 425.16, subd. (e).)
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. (Taus v. Loftus (2007) 40 Cal.4th 683, 712 ....) If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) We review the trial court's decision to grant or deny an anti-SLAPP motion de novo. (Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App.5th 802, 816.)
This case involves claims by both parties as to both steps of the anti-SLAPP analysis. We discuss each step of the analysis separately, and then address Livingston's claim that the trial court erred by denying his motion to conduct discovery before ruling on the anti-SLAPP motion.
A. First Step-Arising from Protected Activity
"The defendant's first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A 'claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.' (Park [v. Board of Trustees of California State University (2017)] 2 Cal.5th [1057,] 1060.) To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' (Id. at p. 1063.) Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of' "act[s]"' protected by the anti-SLAPP statute. (§ 425.16, subd. (e); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66 ....)" (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.)
In this case, AMA asserted, and the trial court agreed, that Livingston's allegations fit two of the four categories of protected activity defined in the anti-SLAPP statute: they concerned "any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest" (§ 425.16, subd. (e)(3)), 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)(4).)
Livingston takes issue with the trial court's ruling on the first anti-SLAPP prong in three respects. First, he contends the court erred by ruling on all his allegations of defamation collectively, rather than considering each statement separately. Next, he argues the court misconstrued his complaint, addressing allegations he did not make while ignoring other allegations he actually did make. Finally, he argues the court erred by finding that two of his allegations arose from protected activity even though they were too uncertain to state a cause of action for defamation. We find no prejudicial error, as we explain below.
1. The Trial Court Did Not Fail to Consider Each Allegation of Defamation Separately
At the first stage of review, the trial court does not consider a plaintiff's cause of action as a whole, but rather "analyze[s] 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" under the anti-SLAPP statute. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010, citing Baral v. Schnitt, supra, 1 Cal.5th at pp. 393-395.) Livingston contends the trial court failed to follow this procedure, and instead "considered all statements [alleging defamation] together . . . and then ruled in one fell swoop that all statements were equally connected to an issue of public interest."
We disagree. AMA's special motion to strike attacked the entire complaint without further specification as to particular claims within it. The trial court separately identified the 11 statements it understood alleged defamation in Livingston's complaint, so as to analyze each statement separately to determine whether it was protected under the anti-SLAPP statute. It is true that the court concluded that all 11 statements "constitute protected activity under . . . [section] 425.16[, subdivisions (e)(3) and (e)(4)] because they concern a public issue," but that reflects the reality that an issue of public interest-a debate over the prevalence, causes, and effects of structural racism-was at the center of all 11 of these statements. (See Bernstein v. LaBeouf (2019) 43 Cal.App.5th 15, 24 ["racism is undoubtedly an issue of public interest"].) It would serve no purpose for the trial court to repeat the same analysis 11 times, and we agree with the court that each of the identified statements involves protected conduct.
Indeed, Livingston identifies only two instances where he believes the trial court's analysis overlooked differences among the statements. First, with regard to Maybank's tweets, which we quoted above (see Factual Background, ante) and which the trial court listed as statements No. 1 and No. 5, Livingston contends they were not protected because Maybank "exceeded the discussion of structural racism and ventured into diatribe intended to exact personal revenge against . . . Livingston." We disagree. Maybank's statements are unlike those in Woodhill Ventures, LLC v. Yang (2021) 68 Cal.App.5th 624 on which Livingston relies. In that case, the defendant made public statements complaining about his poor customer experience at a bakery. The trial court held the statements were unprotected because they "were not a discussion of anything. They were only a diatribe." (Id. at p. 635.) Maybank's statements were hard hitting, but they commented on the podcast and its discussion of structural racism in medicine. They furthered public discussion of an issue of public importance that was very much in the news at the time and therefore constitute protected activity. (E.g., Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1255-1256.)
Livingston also argues that a separate analysis was required for "public statements related to . . . Livingston's forced resignation" because those statements did not "contribute[ ] to or further[ ] the public interest." Livingston does not identify which specific statements in the complaint he is referring to, which alone defeats his claim." '[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.]' [Citation.] 'This means that an appellant must do more than assert error and leave it to the appellate court to search the record ....'" (L.O. v. Kilrain (2023) 96 Cal.App.5th 616, 619.) Livingston's failure to support this argument with necessary citations to the record waives his claim. (Id. at p. 620.)
Even if we overlook Livingston's waiver, three statements from the FAC appear to fit Livingston's description: (1) "national news organizations were notified of . . . Livingston's employment termination due to the false narrative concerning the podcast"; (2) "The publication of . . . Livingston's employment termination from . . . AMA[ ] did nothing less than brand him as a racist, bigot, white supremacist and supporter of 'structural racism' "; (3) "Fontanarosa . . . has repeatedly and consistently up to December, 2021, if not later, conversed, stated and communicated to multiple members of the medical community . . . and a new group of readers, that the podcast was an act committed which is as serious as [Livingston] committing medical malpractice or scientific research misconduct justifying . . . Livingston's forced resignation." (Capitalization omitted.)
These statements are entitled to protection under the anti-SLAPP statute. Livingston does not deny that AMA terminated his employment in response to the comments he made during the podcast. In Wilson, our Supreme Court held that a news organization's decision to terminate an employee for violating its standards was protected activity under the anti-SLAPP statute. (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 898.) We see no reason to reach a different conclusion with regard to AMA's decision to terminate Livingston's employment, or AMA's subsequent public comments allegedly regarding the reasons for that decision.
Livingston argues that a different analysis should apply to statements Fontanarosa allegedly made in private. But our Supreme Court has held that "section 425.16 may protect private events and conversations." (FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th at p. 146.) Of course, the context of a statement matters, but the question for any statement, whether made in public or private, is "whether that statement furthers the exercise of constitutional speech rights in connection with a matter of public interest" (id. at p. 149) or, in other words, whether the statement" 'contribute[s] to the public debate.' [Citations.]" (Id. at p. 150.) The FAC does not specify where Fontanarosa made his alleged statements, but it does state that he made the statements "repeatedly and consistently . . . to multiple members of the medical community." Such statements would therefore contribute to the public debate within the medical community regarding structural racism, such that the statements are entitled to protection under the statute. Looking at the whole context from which the conduct underlying the lawsuit arises, Fontanarosa's statements concerning the seriousness with which AMA took Livingston's comments on the podcast and the resulting public criticism of those comments make clear Fontanarosa's statements to others in the medical community implicated public issues and furthered public discussion of those issues. (Geiser v. Kuhns, supra, 13 Cal.5th at p. 1256.)
2. Any Errors in the Trial Court's Compilation of the 11 Allegedly Defamatory Statements Were Harmless
Livingston contends the trial court erred in compiling its list of 11 allegedly defamatory statements. According to Livingston, three of the statements (Nos. 9 to 11) were not based on allegations in the FAC, while several other allegations of defamation present in that complaint were omitted from the trial court's list. To the extent the trial court erred, however, Livingston fails to demonstrate any prejudice.
In his brief, Livingston claims "statements [No.] 5 through [No.] 11 identified in AMA's motion and the lower court's ruling are not alleged anywhere in" the complaint. But Livingston makes no reasoned argument that statements No. 5 through No. 8 do not reflect allegations in the complaint, and our review of the complaint indicates that it contains those statements. We therefore consider Livingston's claims only with respect to statements No. 9 through No. 11. (L.O. v. Kilrain, supra, 96 Cal.App.5th at p. 619.)
We agree with Livingston that the trial court erred by including statements No. 9 through No. 11 in its analysis. Statement No. 9 referred to a tweet dated March 4, 2021, from Bauchner on AMA's Twitter account. Statement No. 10 referred to a statement by Bauchner in a podcast on March 8, 2021. Statement No. 11 referred to comments by Bauchner in a YouTube livestream on March 16, 2021. A declaration from Fontanarosa, the executive editor of JAMA, described these incidents, but we find no reference to them in Livingston's FAC. But these errors were not prejudicial as the trial court did nothing more than purport to strike from the FAC allegations that were never present in that complaint. That is the very definition of no harm no foul.
Livingston next asserts the trial court failed to analyze certain allegations in his FAC that fell within the ambit of the anti-SLAPP motion. We agree with Livingston as to one of these omissions. The trial court did not consider his allegation that "[t]he publication of . . . Livingston's employment termination from . . . AMA[ ] did nothing less than brand him as a racist, bigot, white supremacist and supporter of 'structural racism.'" (Capitalization omitted.) But the trial court's order did not strike this allegation from the complaint. We fail to see how Livingston was prejudiced by the court not striking a portion of his complaint in response to an anti-SLAPP motion he opposed. The claim remains part of the FAC, which is the result Livingston advocated before the trial court.
Livingston also alleges the trial court failed to analyze the allegations in paragraphs 20(c) and 56 of the FAC. We disagree. The court analyzed paragraph 20(c) as statement No. 4. The allegations in paragraph 56 are a paraphrase of Maybank's March 4, 2021 tweet, which the trial court analyzed as statement No. 5. In any case, the trial court did not strike paragraph 56 from the complaint.
3. The Vagueness of Statements No. 2 and No. 4 Did Not Exclude Them from Protection Under the Anti-SLAPP Statute
Livingston next argues the trial court erred by finding that two of the 11 statements were protected under the anti-SLAPP statute despite later concluding that they were too vague to succeed as an allegation of libel or slander. We disagree.
The statements at issue are statements No. 2 and No. 4. Statement No. 2 alleged that on March 31, 2021, Maybank "participated in a social media discussion where she failed to dispute and encouraged participants to accept her interpretation of the [p]odcast that denied the existence of structural racism in medicine." Statement No. 4 alleged that Fontanarosa "repeatedly and consistently up to December, 2021, if not later, conversed, stated and communicated to multiple members of the medical community outside, separate and apart from any 'official proceeding authorized by law' or otherwise, and a new group of readers, that the podcast was an act committed which is as serious as [Livingston] committing medical malpractice or scientific research misconduct justifying . . . Livingston's forced resignation" (capitalization omitted). The trial court concluded that both statements were protected under the anti-SLAPP statute, but that Livingston failed at the second stage of the analysis because" '[t]he general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint'" (Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869, 884 (Medical Marijuana II)), and Livingston had failed to do so.
Livingston argues this was error, and "[t]he appropriate remedy is for the defendant to first demur on the basis of uncertainty to obtain an amended complaint specific enough to allow a first prong analysis." But this was not the rule set out in Medical Marijuana II. In that case, the court granted the defendant's anti-SLAPP motion on the plaintiff's libel cause of action because the allegations in the complaint were too vague. (See Medical Marijuana II, supra, 46 Cal.App.5th at p. 884.) Livingston cites two other cases, Central Valley Hospitalists v. Dignity Health (2018) 19 Cal.App.5th 203 and Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602 (Medical Marijuana I), where the court held that an anti-SLAPP motion for defamation failed at the first stage of review. But in both of those cases, the plaintiff failed to allege that the defendant committed any act at all." 'If there are no acts alleged, there can be no showing that alleged acts arise from protected activity.'" (Central Valley Hospitalists, supra, at p. 218; accord, Medical Marijuana I, supra, at p. 621.) That is not the case here, and there is no basis for requiring AMA to challenge statements No. 2 and No. 4 by means of a demurrer rather than an anti-SLAPP motion.
Livingston also argues the trial court erred by finding in the second step of the anti-SLAPP analysis that he failed to show a probability of success as to these statements. He offers no reasoned argument as to the second step, however, and thus has forfeited this argument. (L.O. v. Kilrain, supra, 96 Cal.App.5th at p. 619.) Even if that argument was not waived, Livingston's claim regarding the second step fails on the merits because regardless of any vagueness concerns statements No. 2 and No. 4 are nonactionable opinions. (See Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261-1262.)
B. Second Step-Probability of Success
In the second step of the anti-SLAPP analysis, "the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken." (Baral v. Schnitt, supra, 1 Cal.5th at p. 396.) In other words, at this stage," '" '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." [Citations.]' [Citation.]" [Citation.] "Thus, [the] plaintiffs' burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a motion for summary judgment." '" (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695.) Consistent with this summary-judgmentlike procedure, we "must draw all reasonable inferences from the evidence in favor of [the party opposing the anti-SLAPP motion]." (Lee v. Kim (2019) 41 Cal.App.5th 705, 720.)
Livingston contends the trial court erred in ruling that several of the defamation allegations failed at the second prong because they were time-barred, and that additional allegations failed because they were too vague or indefinite. He argues the trial court erred by determining that statement No. 1, in which Maybank used the term "white supremacy" in reference to the podcast, was a matter of opinion rather than an allegation of fact. He also contends the trial court erred by striking his causes of action for slander and invasion of privacy.
For its part, AMA argues the trial court erred by finding Livingston had shown a probability of success as to statement No. 3, the statement in the Time magazine article that the podcast "denied the existence of structural racism in medicine."
We disagree with both sides' arguments and conclude that the trial court correctly determined that Livingston satisfied his burden at this second stage only with respect to statement No. 3. We also conclude that the trial court erred in striking Livingston's claim of false light invasion of privacy as the evidence regarding statement No. 3 was sufficient to support that cause of action at this preliminary stage of the proceedings.
1. The Trial Court Did Not Err in Concluding Livingston Carried His Burden with Respect to Statement No. 3
AMA argues that Livingston cannot show a probability of succeeding in his claim as to statement No. 3 because the assertion that the podcast "denied the existence of structural racism in medicine" was an opinion, not a factual claim."' "The sine qua non of recovery for defamation . . . is the existence of falsehood." '" (Summit Bank v. Rogers, supra, 206 Cal.App.4th at p. 695.) If the defendant's statement is merely an opinion and includes no implied assertion of fact, then the statement cannot be false, and the defendant cannot be liable for defamation. (Id. at pp. 695-696.)
AMA did not argue in its anti-SLAPP motion that Livingston was a public figure, and that a showing of actual malice was thus required to establish his liability for defamation. (See New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279280 [84 S.Ct. 710, 11 L.Ed.2d 686].) For this reason, we do not address this issue.
AMA argues that statement No. 3 expressed only the authors' "subjective characterization of the [p]odcast," and was in effect merely "[a]n opinion of an opinion." AMA analogizes the facts of this case to a recent federal district court case, Skidmore v. Gilbert (N.D Cal., Feb. 15, 2022, No. 20-cv-06415-BLF) 2022 WL 464177), in which a student at a public university wrote a post on her personal Facebook page attacking the "Chinese and their archaic culture." (Id. at p. *2.) Faculty members at the university released a statement "condemn[ing] [the student's] post as 'appalling, hateful, and violent,' 'disturbingly xenophobic,' and 'deeply hurtful.'" (Ibid.) The student sued the faculty members for violating her civil rights, and the faculty members filed an anti-SLAPP motion. The court granted the motion because the defendants' statements were "protected opinions under the First Amendment." (Id. at p. *9.) The court noted that "multiple courts (including in California) have held that a term like 'racist,' while 'exceptionally negative, insulting, and highly charged'-is not actionable under defamation-type claims because it is 'a word that lacks precise meaning' and 'can imply many different kinds of fact.'" (Ibid., quoting Overhill Farms, Inc. v. Lopez, supra, 190 Cal.App.4th at pp. 1261-1262.) The analysis did not change merely because the defendants described the plaintiff's Facebook post, rather than the plaintiff herself, as" 'racist' [and] 'xenophobic.'" (Skidmore, supra, at p. *9.) In AMA's view, statement No. 3 functioned the same way, as a critique of or commentary on the podcast, not a statement of fact.
Livingston disagrees, noting that statement No. 3 did not describe the podcast as racist, but rather stated that the podcast "denied the existence of structural racism." In Livingston's view, statement No. 3 thus made a factual claim regarding what Livingston said. Although "statements charging a person with being racist . . .-without more-. . . constitute mere name calling and do not contain a provably false assertion of fact" (Overhill Farms, Inc. v. Lopez, supra, 190 Cal.App.4th at p. 1262), accusations of specific actions involving racism may still be factual claims. For example, "a claim of racially motivated employment termination is a provably false fact. Indeed, that very fact is subject to proof in wrongful termination claims on a regular basis." (Id. at p. 1263.) In addition, a misrepresentation of a plaintiff's statements can be sufficiently false to be defamatory. The United States Supreme Court explained that a false quotation could give rise to a claim of defamation "because the manner of expression or even the fact that the statement was made indicates a negative personal trait or an attitude the speaker does not hold." (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 511 [111 S.Ct. 2419, 115 L.Ed.2d 447]; see also Balla v. Hall (2021) 59 Cal.App.5th 652, 689 [accurate but out-of-context quotation of a plaintiff's statement can be defamatory by "materially alter[ing] the statement's meaning and render[ing] it misleading"].)
"To decide whether a statement is fact or opinion, a court must put itself in the place of an average reader and determine the natural and probable effect of the statement, considering both the language and the context." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1011.) AMA argues that the context of the Time magazine article indicates that it should be interpreted as "pure opinion." We disagree. The Time article reads primarily as an opinion piece, but the authors present themselves as medical experts and make numerous factual claims to bolster their arguments. For example, they claim that "[o]f the more than 200,000 total articles published over the past 30 years in the New England Journal of Medicine, The Lancet, [JAMA], and British Medical Journal, less than 1[ percent] included the word 'racism' anywhere in the text." (Emphasis omitted.) A reasonable reader could interpret the claim in statement No. 3, that the podcast "denied the existence of structural racism in medicine," as an equally factual claim about the content of the podcast. AMA also argues that the context is relevant because statement No. 3 included a hyperlink to a New York Times article explaining the controversy over the podcast in more detail. But the article in question contains only a short excerpt from the podcast. As Livingston points out, AMA removed the podcast from its Web site days after publishing it, making it difficult or impossible for a reader of the article to find out what exactly Livingston said.
We take judicial notice of the article, which is available at <https://www.nytimes.com/2021/03/25/health/jama-bauchner-race-medicine.html> (as of October 31, 2024).
Another indication that statement No. 3 can reasonably be interpreted as making a factual claim is that AMA itself repeatedly claimed in its public responses to the podcast that the existence of structural racism is an established fact. Thus, in an apology published on JAMA's Web site on March 8, 2021, Bauchner wrote, "Racism and structural racism exist in the U.S. and in health care." Bauchner made the same statement a week later in a YouTube livestream. Madara, the CEO of AMA, made an even more unequivocal version of this statement in an article published on the AMA Web site at around the same time. He wrote that "structural racism exists in the U.S. and in medicine .... This is not opinion or conjecture, it is proven in numerous studies, through the science and in the evidence." (Italics added.) Given this history, it is disingenuous for AMA now to assert that its statement that the podcast denied the existence of structural racism in medicine is AMA's opinion about Livingston's opinion. AMA has repeatedly stated the existence of structural racism in medicine is not an opinion but a scientific fact. Saying someone has denied the existence of a provable scientific fact is a statement of fact about a statement of fact, not an opinion about an opinion.
The second stage of anti-SLAPP analysis is "a summaryjudgment-like procedure" where the plaintiff needs only "to establish a prima facie case with respect to the claim." (Taus v. Loftus, supra, 40 Cal.4th at p. 714.) Although the issue of whether a statement is fact or opinion is ordinarily a question of law (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1011), where a statement is ambiguous and "the allegedly libelous remarks could have been understood by the average reader in either sense, the issue must be left to the jury's determination." (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 682.) Drawing all reasonable inferences in Livingston's favor, he has made a prima facie case that statement No. 3 could be reasonably interpreted as a factual claim.
AMA argues that we should nevertheless strike statement No. 3 because even if it can be interpreted as a statement of fact, it is not a basis for a defamation liability because "it was substantially true." A defendant is entitled to some amount of literary license and is not liable for defamation on the basis of minor misstatements:"' "It is well settled that a defendant is not required in an action of libel to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified ...."' [Citation.]" (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 262, fn. 13.)
Drawing all reasonable inferences in his favor, Livingston has made a prima facie case that the gist or sting of the accusation in statement No. 3 was not true. In its ruling on the motion, the trial court noted that AMA had posted a definition of "[s]ystemic racism" on its Web site in an article responding to the podcast. The definition, which according to the Web site is taken from an official AMA policy on the subject, states that systemic racism is a "structural and legalized system that results in differential access to goods and services, including health care services." (The statement is available at <https://www.ama-assn.org/press-center/press-releases/ama-statement-jama-podcast-and-tweet> [as of Oct. 31, 2024].) This accords with the definition that Katz gave during the podcast, where he defined structural racism as "a system in which policies or practices or how we look at people perpetuates racial inequality."
The Web site uses the term "systemic racism" rather than "structural racism," but AMA used this terminology when responding to the podcast and does not argue that there is a meaningful difference between the terms.
Livingston expressed some skepticism about the concept of structural racism-indeed, in the introductory section, he said that the subject of the podcast would be "structural racism for skeptics." But his skepticism was mostly directed at whether it was useful to label the phenomenon using the term racism, rather than other terms describing the reality of the underlying phenomenon. Livingston acknowledged that "there are neighborhoods that are impoverished, the quality of life is poor in those areas because we may put factories in them or have major thoroughfares that travel through them," and further, "that in those poor areas there tend[ ] to be a disproportionate share of certain kinds of races, such as Blacks or Hispanics." In this way, Livingston arguably accepted that structural racism, as AMA has defined it, exists. Livingston stated that, "[p]ersonally, I think taking racism out of the conversation would help" because "[m]any people like myself are offended by the implication that we are somehow racist." Instead, Livingston argued that "the population at large would be more accepting of this general concept if we concentrated on the structural part of it and ensured that all people who lived in these disadvantaged circumstances have equal opportunities to become successful and have better qualities of life."
2. The Trial Court Did Not Err by Finding that Livingston Failed to Make a Prima Facie Case as to the Remaining Defamation Claims
The trial court found that Livingston failed to meet his burden at the second prong with respect to his defamation claims apart from statement No. 3. Livingston takes issue with several aspects of the court's ruling, but we find no merit in these claims. We address each of Livingston's arguments briefly.
a. Statement No. 1
Livingston contends the trial court erred by finding that statement No. 1 was unactionable because it was a statement of opinion. In this statement, Maybank tweeted a quote from an article addressing Livingston's question during the podcast, "Is there a better word than racism?" in which the article's author Gravlee responded, "There may be. How about 'white supremacy?' "
We begin by noting that Livingston's FAC mischaracterizes Maybank's tweet. The FAC alleges that Maybank "question[ed] if there is a better word to describe the [p]odcast than racism" and "respond[ed] to her own rhetorical question that the [p]odcast is equivalent to 'white supremacy.'" Maybank did not question anything or respond to her own rhetorical question, nor did she equate the podcast with white supremacy. Instead, she quoted a portion of a lengthy article by another writer who had opined that the answer to Livingston's own question during the podcast of whether there was a better word than racism to describe certain structural inequities was yes, and that the better term to describe those inequities was white supremacy.
As we noted above, courts have held that "statements charging a person with being racist . . .-without more-. . . constitute mere name calling and do not contain a provably false assertion of fact." (Overhill Farms, Inc. v. Lopez, supra, 190 Cal.App.4th at p. 1262.) This is because the word racism "has been watered down by overuse, becoming common coin in political discourse." (Stevens v. Tillman (7th Cir. 1988) 855 F.2d 394, 402.) Maybank's actual tweet did not accuse Livingston of white supremacy, but even if we credit the FAC's allegation that it did, accusing a White person of demonstrating "white supremacy" is not substantively different than branding him as a racist, and is similar name calling. Livingston's FAC does not reference the Somatosphere article itself (or even mention the link to it in Maybank's tweet), nor does it claim that the underlying article or anything else implied a provably false fact in statement No. 1. (See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20-21 [110 S.Ct. 2695, 111 L.Ed.2d 1].) It is therefore not actionable.
b. Time-barred Statements
Livingston contends the trial court erred by finding he could not prevail on several of his causes of action for defamation because they were time-barred. The statute of limitations for defamation actions is one year. (§ 340, subd. (c).) Livingston filed his initial complaint on March 17, 2022, meaning that all allegations of defamation more than one year prior to that date are time-barred. In his complaint, Livingston did not specify when several of the statements at issue in this case were made, but AMA filed declarations identifying and dating the original statements. Livingston does not contend that any of these identified dates, many of which are more than one year prior to the filing of his complaint, are incorrect. Instead, he argues that "the proper procedural mechanism" for the claims that appear time-barred "was to file a demurrer for uncertainty requiring . . . Livingston to allege the dates of the statements he claims were defamatory."
The idea that a defendant may not demonstrate that a plaintiff's claims are untimely in an anti-SLAPP motion "appears nowhere on the face of the statute or in its rationale." (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398.) Livingston had the burden to establish through admissible evidence that he had a probability of prevailing. AMA submitted evidence that certain claims were untimely; Livingston submitted no contradictory evidence. Livingston therefore failed to establish a probability that he would prevail on these untimely claims. (§ 425.16, subd. (b)(1) &(2).)
c. Slander
The trial court struck Livingston's cause of action for slander because the only defamation claim that survived the anti-SLAPP motion was based on statement No. 3, which was a written statement. A cause of action for slander applies only to defamation that is "orally uttered." (Civ. Code, § 46.) Because at the completion of the anti-SLAPP analysis there were no actionable oral statements, the trial court correctly struck the slander cause of action.
3. Livingston Did Not Show a Probability of Prevailing on the Privacy Claims with the Exception of One False Light Claim
Apart from his causes of action relating to defamation, Livingston also alleged causes of action for wrongful termination, false light invasion of privacy, and public disclosure of private facts. Each was based at least in part on Livingston's right to privacy under article I, section 1 of the California Constitution. Livingston argued that the termination of his employment was wrongful in part because it violated his right to privacy. The trial court rejected this claim because "the purported defamation of [Livingston] implicates neither informational nor autonomy privacy," and Livingston "did not have any expectation of privacy." The court then noted that Livingston's causes of action for invasion of privacy and public disclosure of private facts were similarly based on the same constitutional right to privacy. The court concluded that, "Because [Livingston] fails to demonstrate a probability of prevailing on the merits as to the first cause of action [for wrongful termination], [Livingston] fails to demonstrate a probability of prevailing on the merits as to the fifth and sixth causes of action [for privacy violations]."
Livingston does not dispute the striking of his wrongful termination claims, but argues the trial court erred by failing to analyze the privacy causes of action on their own terms apart from the wrongful termination claims. We disagree as to the cause of action for public disclosure of private facts. That tort requires a "plaintiff [to] plead and prove (1) public disclosure (2) of a private fact (3) that would be offensive and objectionable to the reasonable person and (4) is not of legitimate public concern." (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1256.) Because the trial court correctly concluded that Livingston had no expectation of privacy as to either his termination or the allegedly defamatory statements around it, there was no need for a separate analysis of the same issue with respect to his claim for public disclosure of private facts.
A different analysis applies to the claim of false light invasion of privacy, which is defined as "publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed." (Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970, citing Rest.2d Torts, § 652E; accord, BAJI No. 1802.) Despite being classified as a form of invasion of privacy, it "does not depend upon making public any facts concerning the private life of the individual" (Rest.2d Torts, § 652E, com. a), but rather protects "the interest of the individual in not being made to appear before the public in an objectionable false light or false position, or in other words, otherwise than as he is" (id., com. b).
Although false light is defined differently than defamation, the two torts are so similar that our Supreme Court has stated that, to the extent a false light action is based on allegedly false statements, "the action is in substance equivalent to [a] . . . libel claim, and should meet the same requirements of [a] libel claim on all aspects of the case." (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16.) Thus," '[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.' [Citation.]" (Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1264.)
Because the two torts are equivalent to one another Livingston's claims of false light invasion of privacy rise and fall together with his claims of defamation. Livingston showed a probability of prevailing as to statement No. 3 for libel, so he did the same with his false light claim, and the trial court erred by striking the false light cause of action in its entirety. To be clear, if the false light claim continues to be based only on statement No. 3, it may potentially be subject to a subsequent demurrer or motion to strike on the ground that it is duplicative. (See Kapellas v. Kofman, supra, 1 Cal.3d at p. 35, fn. 16 [if a false light claim duplicates a libel claim, it "is superfluous and should be dismissed"].) We express no opinion on that question given the preliminary stage of these proceedings, or as to whether Livingston may be able to amend to add non-duplicative claims beyond statement No. 3 (excepting of course those already stricken) to his false light claim once he is able to take discovery.
C. The Trial Court Did Not Err by Denying Livingston's Motion for Discovery
Livingston contends the trial court abused its discretion by denying his motion to conduct discovery in support of his defense from the anti-SLAPP motion. We are not persuaded.
When a defendant files an anti-SLAPP motion, all discovery proceedings are automatically stayed pending a decision on the motion. (§ 425.16, subd. (g).) The statute "permits the trial court to lift this [stay] upon a showing of good cause" (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1161; accord, § 425.16, subd. (g)), but the court must ensure that discovery does not delay the resolution of a motion unnecessarily. "[T]o allow [the plaintiff unduly] extensive discovery would subvert the intent of the anti-SLAPP legislation." (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247.) To demonstrate good cause, a plaintiff must "show[ ] that the specified discovery is necessary for the plaintiff to oppose the motion and is tailored to that end." (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1125.) We review a trial court's decision to deny relief from the discovery stay for abuse of discretion. (Balla v. Hall, supra, 59 Cal.App.5th at p. 692.)
In response to AMA's anti-SLAPP motion, Livingston filed a motion for relief from the stay to allow him to obtain a wide range of discovery. This included taking depositions of Maybank, Fontanarosa, and Madara, along with the production of several categories of documents. The requests for production included "[e]ach and every communication sent or received by each [d]eponent concerning the [p]odcast"; "[a]ny publication, article, public comment or statement made by the [d]eponent concerning the [p]odcast up to and including the present"; "[a]ny and all documents, records or writings . . . pertaining or relating to [Livingston's] employment termination with . . . AMA"; and "all documents, records or writings . . . that would contain a description, explanation, reason or rationale for [Livingston's] . . . employment termination." Livingston offered no explanation as to why all this discovery was required, apart from a single conclusory statement that AMA "controls the evidence needed for [Livingston] to make out a prima facie case, nor is the discovery sought available through alternative means."
The trial court denied the motion, finding that Livingston had failed to demonstrate good cause for discovery. The court reasoned that the issues that were at stake in the anti-SLAPP motion, such as whether the allegedly defamatory statements were time-barred or nonactionable opinions, could be addressed without discovery.
Livingston argues this was error because discovery would have allowed him to obtain "missing information" and clarify any uncertainty regarding the contents of the allegedly defamatory statements and when they were made. We are not persuaded. Livingston has never adequately explained, either before the trial court or now on appeal, why the "missing information" is unavailable to him without discovery, nor has he claimed to have made any effort to find the information on his own. (See Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 619 [denial of discovery affirmed where the plaintiff failed to "explain what specific discovery was needed, and why it was needed"].) Almost all the allegedly defamatory statements at issue in this case were made publicly. In the declarations AMA filed in support of its anti-SLAPP motion, Maybank, Madara, and Fontanarosa supplied exact quotations and dates of most of the statements at issue in this case, and in many instances supplied citations allowing the reader to find the original versions of the statements online. Livingston does not argue that any of this documentation is inaccurate and fails to explain how additional discovery would be helpful in evaluating these statements at the anti-SLAPP stage. To the extent AMA did not supply evidence of certain challenged statements (for example, statement No. 2 concerning Maybank's alleged participation in a social media discussion on March 31, 2021 about the podcast), Livingston failed to identify any independent investigative efforts (for example, searching social media apps and Web sites himself) to locate evidence of the alleged statements, or otherwise explain why those social media posts were not equally available to him. Nor was it necessary to question the declarants regarding their mental state or knowledge at the time they made the statements at issue-actual malice was not at issue as AMA did not argue for purposes of the anti-SLAPP motion that Livingston was a public figure.
A few allegations in the complaint involve statements that were not made publicly. Thus, Livingston alleged in statement No. 4 that Fontanarosa told "multiple members of the medical community . . . that the [p]odcast was an act committed which is as serious as [Livingston] committing medical malpractice or scientific research misconduct justifying [his] forced resignation." Additionally, Livingston alleged that "[t]he publication of . . . Livingston's employment termination from . . . AMA[ ] did nothing less than brand him as a racist, bigot, white supremacist and supporter of 'structural racism.'" (Capitalization omitted.) Additional discovery was not warranted with respect to these claims because Livingston must have been aware of them before including them in his complaint, he made no showing of any independent attempt at investigating their particulars that was unsuccessful and necessitated targeted discovery, and it is readily apparent from the FAC that they were nonactionable statements of opinion. (Sanchez v. Bezos (2022) 80 Cal.App.5th 750, 779 ["if evidence already available to a plaintiff, without need for further discovery, demonstrates a defamation claim is without merit-for example, because the purportedly defamatory comments identified by the plaintiff are not in fact defamatory- there is no point to ordering discovery"].)
The discovery stay serves an important role in advancing "the statutory design 'to prevent SLAPPs by ending them early and without great cost to the SLAPP target.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65; accord, Mattel, Inc. v. Luce, Forward, Hamilton &Scripps (2002) 99 Cal.App.4th 1179, 1190 ["not only did the Legislature desire early resolution to minimize the potential costs of protracted litigation, it also sought to protect [the] defendants from the burden of traditional discovery pending resolution of the motion"].) Livingston failed to show good cause to justify delaying the case to allow for discovery, and the trial court acted within its discretion by denying Livingston's motion for relief from the discovery stay.
DISPOSITION
The trial court's order on the anti-SLAPP motion is reversed as to the cause of action for false light invasion of privacy as to statement No. 3. In all other respects, the order is affirmed. Each party is to bear its own costs on appeal.
We concur: BENDIX, Acting P. J., KLINE, J. [*]
[*] Retired Presiding Justice of the Court of Appeal, First Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.