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In Siu v. Lee (Oct. 11, 2007, A116191) [nonpub. opn.] (Siu I), Lee appealed the trial court’s denial in part of his special motion to strike Siu’s complaint.
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Francisco County Super. Ct. No. 444060
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant and appellant Pius Lee (Lee) appeals the trial court’s denial in part of his special motion to strike (Code of Civil Procedure § 425.16) plaintiff and respondent Yee Keung Siu’s (Siu) First Amended Complaint (FAC). We affirm in part and reverse in part.
Code of Civil Procedure section 425.16 is commonly known as the anti-SLAPP statute, where “SLAPP” is an acronym for Strategic Lawsuit Against Public Participation. (Rivero v. American Federation of State, County & Municipal Employees AFL-CIO (2003) 105 Cal.App.4th 913, 915 & fn. 2 (Rivero).) Further statutory references are to the Code of Civil Procedure unless otherwise noted.
FACTS & PROCEDURAL BACKGROUND
The genesis of this suit lies in the operations of the Chinese Economic Development Group (CEDG). CEDG is a nonprofit corporation active in San Francisco’s Chinatown affairs and established to help revitalize the Chinatown economy after the effects of the 1989 Loma Prieta earthquake.
According to the allegations in the FAC filed on June 23, 2006: Siu was a member of the Board of Directors of the CEDG and held the position of Vice President from April 2001 until around July 15, 2004. On July 15, 2004, Sui endorsed a check on a CEDG bank account to “cash” in the amount of $140,000. The check was signed by both Sui and Chark Lui, the co-Vice President of the Board. The $140,000 was converted into a cashier’s check for disbursement to another non-profit corporation, the Chinatown Community Development Center (CCDC) for CCDC’s expenditures on a variety of neighborhood projects, including the operation of an information booth on Grant Street. Sui alleges he endorsed the check with the approval of the Board and in accordance with a previously executed contract between CEDG and CCDC. On or around August 9, 2004, shortly after Sui’s endorsement of the $140,000 check, Lee became the Chairman of the Board of Directors of CEDG and his co-defendant William “Bill” Lee became a member of the Board.
The FAC complaint further alleges that both Lee and Bill Lee provided certain information and made certain statements to the Chinatown press concerning the cash disbursement of $140,000 initiated by Sui. Specifically, the FAC alleges:
“a. BILL LEE made a statement to the World Journal newspaper that the spending of the said $140,000 in funds was ‘illegal.’ This statement was published in news publication(s) of general circulation, including but not limited to the August 24, 2004 edition of the World Journal. The article identified plaintiff by name as one of the signers of the instrument that was alleged to have evidenced the illegal transaction.
“b. Defendant PIUS LEE made a statement to the press that ‘everyone will go to jail for the $140,000.’ This statement was published in one or more news publications of general circulation, including but not limited to the August 25, 2004 edition of the Ming Pao newspaper. The statement regarding jail was unmistakably an innuendo that a crime had been committed. The term ‘everyone’ was clearly intended to include Plaintiff because he had been previously identified in a series of articles in the Ming Pao newspaper beginning on August 22, 2005 in which Plaintiff was specifically identified as one of the principles in, and one of the endorsers of the check for $140,000 in question.
“c. Defendant PIUS LEE made a statement to reporters for Ming Pao Newspaper that all CEDG Board of Directors meetings after May 27, 1999 involving the ‘former’ board members did not reach a quorum, and therefore that executive committee members acted without authority when they undertook official acts and/or business transactions on behalf of the CEDG based on decisions made in Board of Director’s meetings after that time including, [sic] this statement clearly intended in innuendo to disparage the character of the persons on the committee as dishonest and to imply that actions taken to implement the board’s resolutions were ultra vires acts taken without proper authority. Moreover, this statement was clearly intended to include Plaintiff as one of the persons whose character was being maligned, because the article in question identified Plaintiff by name as one of the former CEDG executive board members who took action regarding expenditures of CEDG funds without, in defendant Lee’s account, proper authority. Defendant’s statements were published in one or more news publication(s) of general circulation including but not limited to the February 19, 2005 edition of the Ming Pao newspaper. Defendant Pius Lee made repeated statements to members of the press that the plaintiff, as one of four members of the executive committee bore exclusive responsibility for what Lee had termed the illegal spending of the $140,000 check written by CEDG to CCDG.
“[d]. Defendants or their agents provided to the press and thereby caused to be published on or about August 22, 2004 in the Ming Pao Newspaper an image of a bank signature card bearing Plaintiff’s signature specimen, his date of birth, and his mother’s maiden name, as well as an image of the $140,000 check made drawn on a CEDG account at United Commercial Bank [Bank] made out to cash with Plaintiff’s signature specimen.” The FAC further alleged, among other things, that as a result of the foregoing conduct, “Plaintiff’s privacy was invaded and Plaintiff’s personal information about him disseminated in a public venue, putting him at risk for identity theft.”
In his declaration submitted in opposition to Lee’s special motion to strike, Sui states that his attorney asked the Bank how his signature card and the copy of the cancelled check came to be released to the newspaper. Sui states that in response to his attorney’s request, the Bank provided him a copy of a letter from Lee to the Bank authorizing the Bank to release account information to Bill Lee.
Based on these allegations, which were incorporated into each cause of action, the FAC stated twelve causes of action: 1. libel; 2. libel per se; 3. slander; 4. slander per se; 5. invasion of privacy (false light); 6. invasion of privacy (public disclosure of private facts); 7. violation of constitutional right to privacy; 8. negligence; 9. negligent infliction of emotional distress; 10. intentional infliction of emotional distress; 11. negligent violation of statutory duty; and 12. injunctive relief.
On August 4, 2006, Lee filed his special motion to strike Sui’s FAC pursuant to Code of Civil Procedure § 425.16. The trial court issued a tentative ruling followed by a hearing held on August 31, 2006. At the conclusion of the hearing, the trial court issued its ruling, and the order reflecting the court’s oral ruling was filed on September 25, 2006. The trial court granted in part and denied in part Lee’s special motion to strike. The court struck causes of action 1-4, and denied the special motion with respect to causes of action 5-12. Notice of entry of order was filed on October 4, 2006, and Lee filed a timely notice of appeal on November 14, 2006.
DISCUSSION
A. Legal Standards
Section 425.16 states: “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Under section 425.16, an “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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; (4) or 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).)
A court must “engage in a two-step process when determining whether a defendant’s [special motion to strike] should be granted. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity. [Citation.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 (City of Cotati).) “In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citation.]” (Id. at p. 79.) “However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) If we conclude the defendant has made such a threshold showing, we then “must consider whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]” (City of Cotati, supra, 29 Cal.4th at p. 76.) We review de novo whether the complaint against Defendants arises from their exercise of a valid right to free speech and petition and if so, whether Plaintiffs established a probability of prevailing on the complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.)
B. Application
1. Contentions
Appellant Lee argues that the trial court should have granted his special motion to strike with respect to all twelve causes of action in the FAC. Lee contends that all twelve causes of action arise from his protected First Amendment activity in speaking about an issue of public interest—the controversy over the handling of CEDG funds. Thus, according to Lee, § 425.16 applies to all twelve causes of action, and because Sui cannot establish a probability of prevailing on his claims, “the entire complaint must be stricken.”
On the other hand respondent Sui does not contest the trial court’s decision to grant Lee’s special motion in part, thereby striking his libel and slander causes of action. Indeed, Sui contends that the trial court “properly applied the anti-SLAPP statute to the case at bar.” Based on the trial court’s ruling, Sui infers the trial court granted Lee’s special motion to strike with respect to his libel and slander claims because it “found that the controversy about the spending of CEDG funds was a matter of legitimate public interest.” Sui further infers the trial court denied Lee’s special motion to strike with respect to his privacy claims because it distinguished between “conduct in furtherance of speech about a public issue” and conduct which was solely “an abuse of financial privacy.”
The trial court did not explain its ruling. We must assume therefore, that the trial court concluded Sui’s libel and slander claims against Lee arose from Lee’s acts in furtherance of his right of free speech in connection with a public issue, and that Sui failed to establish a probability of prevailing on those claims. (See § 415.16, subd. (b)(1).)
Sui’s position has greater merit. Accordingly, upon de novo review and for reasons more fully explained below, we affirm the trial court’s order with respect to its decision to grant Lee’s special motion to strike Sui’s libel and slander claims (Causes of Action 1-4) and to deny the special motion to strike with respect to Causes of Action 6-11. However, we conclude the trial court erred by failing to grant the special motion to strike with respect to the Fifth (Invasion of Privacy—False Light) and Twelfth (Injunctive Relief) Causes of Action, and reverse the trial court’s order as to those causes of action only.
2. Publication of Private Facts (Sixth Cause of Action)
(i)
The allegations in the FAC underlying Sui’s sixth cause of action for publication of private facts are that Lee used the authority of his office as Chairman of the CEDG Board of Directors to obtain the release of a signature card on file at the Bank. The signature card contained Sui’s signature specimen, his date of birth, and his mother’s maiden name. Lee caused that card to be turned over to the Ming Pao Newspaper for publication.
We conclude Lee has failed to make a threshold showing that such conduct is entitled to First Amendment protection, and therefore Lee’s special motion to strike must be denied with respect to any cause of action arising from this conduct. (See, e.g., Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 800 [moving defendant in anti-SLAPP motion “is required to make a prima facie showing the plaintiff’s action is subject to section 425.16, by showing the defendant’s challenged acts were taken in furtherance of constitutional rights of petition or free speech in connection with a public issue”].) This is because the First Amendment only protects against the publication of private facts if such publication is “newsworthy.” (Shulman v. Group W. Productions, Inc. (1998) 18 Cal.4th 200, 226 (Shulman) [“newsworthiness . . . depends . . . on the existence of a logical nexus between the newsworthy event or activity and the facts revealed”].) Accordingly, for Lee to prevail on his anti-SLAPP motion by showing his activity “arises from” an act in furtherance of his First Amendment rights, he must show his publication of Sui’s private facts was “newsworthy” as a matter of law. (Soukup, supra, 39 Cal.4th at p. 269 [in deciding “arising from” requirement of anti-SLAPP statute, court must evaluate defendant’s evidence “to determine if has defeated that submitted by the plaintiff as a matter of law”].) This we conclude Lee cannot do in light of the principles set forth in Shulman, supra, 18 Cal.4th 200, 226, which although not an anti-SLAPP case, is highly instructive on the interplay between First Amendment rights and the right to privacy.
(ii)
The facts underlying the Supreme Court’s decision in Shulman, supra, 18 Cal.4th 200 were these: in June 1990, Ruth and Wayne Shulman, mother and son, were involved in a serious car accident which ultimately rendered Ruth paraplegic. A rescue helicopter was dispatched to the scene. Joel Cooke, a video cameraman employed by defendant Group W. Productions, accompanied medical personnel in the helicopter. Cooke was to record the rescue operation for later broadcast on television. Flight nurse Carnahan, who would perform medical care at the scene, wore a wireless microphone that picked up her conversations with the victims and other rescue personnel. Cooke’s videotape of the rescue was edited into a nine-minute piece with voice-over narrative added, and it was broadcast on television in September 1990 as a segment of On Scene: Emergency Response. (Shulman, supra, 18 Cal.4th at pp. 210-211.)
Subsequently Ruth and Wayne sued the producers of the show for invasion of privacy on two separate grounds, “one based on defendants’ unlawful intrusion by videotaping the rescue in the first instance and the other based on the public disclosure of private facts, i.e., the broadcast.” (Shulman, supra, 18 Cal.4th at p. 212.) Defendants moved for summary judgment, arguing “that their conduct was protected by the First Amendment because of the broadcast’s newsworthy content.” (Ibid.) The trial court granted summary judgment on the basis that “the accident and rescue were matters of public interest and public affairs,” and the court of appeal reversed in part. (Id. at pp. 212-213.) The Supreme Court noted that “California courts have recognized both of the privacy causes of action pleaded by plaintiffs here: (1) public disclosure of private facts, and (2) intrusion into private places, conversations or other matters” (id. at p. 214), and reviewed each in turn. Our concern is with the former.
The Supreme Court stated the elements of the public disclosure tort as follows:
“ ‘(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.’ (Citations.)” (Shulman, supra, 18 Cal.4th at p. 214.) The court stated that “[t]he element critical to this case is the presence or absence of legitimate public interest, i.e., newsworthiness, in the facts disclosed. After reviewing the decisional law regarding newsworthiness, we conclude, inter alia, that lack of newsworthiness is an element of the “private facts” tort, making newsworthiness a complete bar to common law liability. We further conclude that the analysis of newsworthiness inevitably involves accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution, and that in the circumstances of this case—where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance—the broadcast was of legitimate public concern, barring liability under the private facts tort.” (Id. at 215-216 [italics added].)
In reaching its decision, the Supreme Court recognized that certain “competing interests [had] to be balanced.” (Shulman, supra, 18 Cal.4th at p. 222.) “First, the analysis of newsworthiness does involve courts to some degree in a normative assessment of the ‘social value’ of a publication. (Citation.) All material that might attract readers or viewers is not, simply by virtue of its attractiveness, of legitimate public interest. Second, the evaluation of newsworthiness depends on the degree of intrusion and the extent to which the plaintiff played an important role in public events, (citation) and thus on a comparison between the information revealed and the nature of the activity or event that brought the plaintiff to public attention. ‘Some reasonable proportion is . . . to be maintained between the events or activity that makes the individual a public figure and the private facts to which publicity is given. Revelations that may properly be made concerning a murderer or the President of the United States would not be privileged if they were to be made concerning one who is merely injured in an automobile accident.’ ” (Id. at pp. 222 -223.)
In light of these considerations, the Supreme Court examined “whether the possibly private facts complained of here—broadly speaking, Ruth’s appearance and words during the rescue and evacuation—were of legitimate public interest.” (Shulman, supra, 18 Cal.4th at p. 228.) The Supreme Court agreed with defendants that “the subject matter of the broadcast as a whole was of legitimate public concern.” (Ibid.) However, the “more difficult question is whether Ruth’s appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern.” (Ibid.) Balancing the interests identified above, the Supreme Court concluded “the disputed material was newsworthy as a matter of law” because the story as a whole focused on flight nurse Carnahan and in portraying her dangerous, demanding and important work in assisting traumatized patients such as Ruth, whose physical state was “not luridly shown” and whose “disorientation and despair were substantially relevant to the segment’s newsworthy subject matter.” (Id. at pp. 228-229.) Accordingly, the Supreme Court held that “[s]ummary judgment for the defense was proper as to plaintiffs’ cause of action for publication of private facts.” (Id. at p. 242.)
(iii)
In contrast to the Shulman case, Lee’s evidence of newsworthiness, as to the Sixth Cause of Action for public disclosure of private facts, is minimal. Lee asserts in a conclusory fashion that “the newspaper’s publication of the signature card to establish that [Sui] was the person who had authority to withdraw the funds from the CEDG account was clearly newsworthy and directly related to an issue of public controversy and therefore protected speech.”
While we may agree with Lee that the subject of publication as a whole—the management and disbursement of CEDG funds—is a matter of legitimate public concern, that in and of itself is not dispositive on the question of newsworthiness. (See Shulman, supra, 18 Cal.4th at p. 228.) Rather, as in Shulman, “[t]he more difficult question” is whether the publication of Sui’s private banking information was of legitimate public concern. (Ibid.)
Although in Shulman, the Supreme Court ultimately concluded the balance of free press and privacy interests went against the individual, the court stated that a different conclusion may be required “when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern.” (Shulman, supra, 18 Cal.4th at p. 226, italics added.) In other words, an individual’s privacy rights must prevail when “the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report.” (Shulman, supra, 18 Cal.4th at p. 224 [citation omitted].)
The alleged topic of legitimate pubic concern here was the improper disbursement of CEDG funds. As Lee stated in his reply declaration in support of his anti-SLAPP motion, the check for $140,000 was made out the day before Mayor Gavin Newsom announced the appointment of new members of the CEDG Board of Directors. Lee states that “the old Board’s executive committee, including [Sui] took virtually all the funds in the CEDG bank account, approximately $140,000, and make [sic] a check to cash that was exchanged for a cashier’s check made payable to Chinatown Community Development Center. The executive committee used these funds to enter into an Agreement with the Alleyway Improvement Association to fund the Visitor’s Information Center located on Grant Avenue for One Hundred Forty Thousand Dollars ($140,000.00). The majority of these funds were allegedly paying for past programs and services that previously contracted for [sic] and that the CEDG would not ‘seek refund, adjustment or cancellation of.’ Finally, the contract stated that the funds were raise[d] privately and were not city funds ‘involving any grants, loans, or other city funds.’ This of course is incorrect. The funds were part of an indirect grant from the Planning Department to be used exclusively for open space in Chinatown.”
In sum, the topic of legitimate public concern here is a dispute between former Board members and newer appointees to the Board over whether CEDG funds were disbursed to appropriate community projects. It involves no issue of CEDG funds going completely missing, or the transfer of such funds by a Board member to a private bank account, or of a CEDG check to cash being presented by a private individual for personal use. Under these circumstances, Lee fails to show how the publication of an image of Sui’s signature, his date of birth and his mother’s maiden name carried any “substantial connection to the subject matter of the newsworthy report.” (Shulman, supra, 18 Cal.4th at p. 224.) Thus, it cannot be said as a matter of law that the degree of intrusion involved in the public disclosure of several items of Sui’s highly sensitive private financial information was proportionate to the nature of the controversy. (Cf. Shulman, supra, 18 Cal.4th at p. 223 [reviewing with approval “decisions holding that, while a particular event was newsworthy, identification of the plaintiff as the person involved, or use of the plaintiff’s identifiable image, added nothing of significance to the story and was therefore an unnecessary invasion of privacy” [italics added].) Accordingly, Lee has failed to show that the public disclosure of private facts alleged here was newsworthy as a matter of law. (Shulman, supra, 18 Cal.4th at p.226 [“newsworthiness . . . depends . . . on the existence of a logical nexus between the newsworthy event or activity and the facts revealed”].) In sum, the trial court properly denied his special motion to strike with respect to the Sixth Cause of Action for publication of private facts.
Lee’s reliance on Pasadena Star-News v. Superior Court (1988) 203 Cal.App.3d 131 (Pasadena Star-News), is misplaced. There, plaintiff sued a newspaper for invasion of privacy for disclosing her name as the mother of a baby girl who was taken to a hospital and abandoned there. (Id. at p. 132.) The court of appeal granted the newspaper’s request for a peremptory writ directing the trial court to enter summary judgment in its favor. The court stated that “[a] person who abandons her newborn child cannot complain of the newsworthiness of her act,” (id. at p. 134) and rejected the plaintiff’s contention that a “published report of embarrassing but newsworthy private facts is actionable unless the report omits the name of its subject” because it “would overhaul journalism as we know it.” (Id. at p. 133.) Pasadena Star-News is inapposite here because there are no similar concerns of unreasonable limitations on the press. Moreover, Sui does not complain of his identity being disclosed in the course of public discussion of a matter of public concern—he complains about the disclosure of personal and sensitive banking information.
3. Invasion of Privacy—False Light (Fifth Cause of Action)
The trial court erred, however, by failing to grant Lee’s special motion to strike with respect to the Fifth Cause of Action—False Light invasion of privacy. To prevail on this cause of action a plaintiff must show, among other things, that defendant made a public disclosure of a fact about the plaintiff and the fact disclosed was false, and portrayed the plaintiff in a false light. (See, e.g., BAJI No. 7.22 (Spring 2007 ed.) But here the public disclosure of Sui’s private financial information was true, not false. Indeed, it is the truth and accuracy of the private financial facts disclosed which made their revelation so potentially damaging and disproportionate for purposes of the Sixth Cause of Action (invasion of privacy by public disclosure of private facts). Thus, we must assume Sui’s Fifth Cause of Action for false light invasion of privacy is based on the same factual allegations underpinning his defamation claims for libel and slander.
However, it is well established that “[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. (Citations.)” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385 fn. 13.) As noted above, Sui concedes the trial court properly granted Lee’s special motion to strike with respect to his libel and slander causes of actions because they arise from Lee’s “discussion of the affairs of the nonprofit.” Accordingly, Sui’s false light claim for invasion of privacy, which also arises from Lee’s actions in discussing the affairs of the community non-profit organization, could be struck on account of Sui’s failure to seek review of the trial court’s ruling on his defamation claims. (See, e.g., Transworld Systems, Inc. v. County of Sonoma (2000) 78 Cal.App.4th 713, 716, fn. 4 [respondent waived its right to contest adverse trial court ruling by failing to file cross appeal from trial court’s dismissal of the action].)
In any case, upon independent review, we conclude Lee’s statements allegedly placing Sui in a false light “arise from” acts in furtherance of Lee’s right to free speech in connection with a public issue—a controversy in Chinatown over the disbursement of CDEG funds. (§ 425.16, subd. (b)(1).) Accordingly, we proceed to the second step of the anti-SLAPP analysis—“whether [Sui] has demonstrated a probability of prevailing on the claim.” (City of Cotati, supra, 29 Cal.4th at p. 76.)
The statements Sui attributes to Lee which allegedly placed Sui in a false light are (1) Lee’s statement to the press that “everyone will go to jail for the $140,000” and (2) his statements that Board meetings after May 27, 1999, were conducted without a quorum meaning that executive committee members acted without proper authority in undertaking official acts and business transactions. (See FAC §§ 10, b & c.) In his declaration opposing the special motion to strike, Sui does not dispute the truth of the latter statements concerning the proper quorum for Board decisions. Rather, he asserts he acted in good faith and under direction from Arnold Chin, CEDG’s president. Accordingly, Sui fails to demonstrate a probability of prevailing on a false light claim based on those statements.
Regarding Lee’s statement that “everyone will go to jail for the $140,000,” we conclude that viewed in context this is nonactionable rhetorical hyperbole and a figurative statement. (See Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401 [to avoid preclusion by First Amendment, libel claimant must “allege a statement that is provably false. Statements do not imply a provably false factual assertion and thus cannot form the basis of a defamation action if they cannot reasonably [be] interpreted as stating actual facts about an individual. 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.”] [citations omitted]; see also Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 389 [statements that plaintiff “ ‘stole’ ” and “ ‘plagiarized’ ” data “appear in context as rhetorical hyperbole”].) In sum, Sui fails to demonstrate a probability of prevailing on a false light claim based on Lee’s statement about “everyone going to jail.” Accordingly, the trial court erred by failing to grant Lee’s special motion to strike with regard to the Fifth Cause of Action for invasion of privacy (false light).
Moreover, even if Sui could show this statement was actionable, he must also show actual malice. (See Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16 [false light claim should meet “the same requirements of [a] libel claim . . . including proof of malice”].) In this context, “a defendant acts with actual malice when publishing a knowingly false statement or where he entertained serious doubts as to [its] truth.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81.) If taken at face value, rather than as hyperbole or figurative speech, Lee’s comment was based on his statements about the Board acting without a proper quorum, which Sui does not attempt to rebut in his declaration.
Because Sui’s defamation claims and his false-light claim for invasion of privacy are stricken, the Twelfth Cause of Action for Injunctive Relief must also be stricken because that seeks a mandatory injunction for a public retraction of allegedly defamatory statements. On the other hand, to the extent Causes of Action 7-11 are based on conduct underlying the public disclosure of private facts, they too survive Lee’s special motion to strike, for the reasons previously discussed with respect to the sixth cause of action.
DISPOSITION
The trial court’s order granting in part and denying in part defendant-appellant Lee’s special motion to strike is affirmed with respect to striking the First, Second, Third and Fourth Causes of Action, and is affirmed with respect to denying the special motion to strike the Sixth, Seventh, Eighth, Ninth, Tenth, and Eleventh Causes of Action.
The trial court’s order is reversed with respect to the Fifth and Twelfth Causes of Action. The trial court erred by failing to grant Lee’s special motion to strike with respect to the Fifth Cause of Action (Invasion of Privacy—False Light) and Twelfth Cause of Action (Injunctive Relief). These causes of action should be stricken from the FAC.
The case is remanded for further proceedings not inconsistent with this opinion. Each party will bear its own costs on appeal.
We concur: McGuiness, P. J., Siggins, J.