Opinion
B160984.
7-30-2003
COSTAS SYNOLAKIS, Plaintiff and Appellant, v. PHILLIP WATS, Defendant and Respondent.
Law Offices of Larry Zerner and Larry Zerner for Plaintiff and Appellant. Murchison & Cumming, George V. Genzmer III and Michael J. Nunez for Defendant and Respondent.
INTRODUCTION
Plaintiff Costas Synolakis appeals from an order dismissing his complaint following the sustaining of defendant Phillip Wattss demurrer without leave to amend. We affirm.
FACTS
On November 27, 2000, defendant sent an e-mail to a number of persons, including plaintiff and Ahmet Yalciner, with a copy sent to Kelly Bendell at the University of Southern California (USC). It read:
Plaintiff alleged this and the other e-mails at issue were libelous. The portions which plaintiff identifies as libelous or containing libelous statements are italicized. We include those portions not identified by plaintiff as libelous that are necessary to provide context for the allegedly libelous portions.
"Dear Coauthors,
"Sick of this yet? I have to write this rebuttal in order to defend my legal ground. So, please forgive me in advance. Public paper comments are clearly not a good idea because they can start public fights. To wit, most scientific paper reviews are private and anonymous. That is why I was handling your insightful comments on our paper in a subdued and bilateral fashion and will continue to do so in the future. There is clearly more work needed to refine the LALB paper, but I can only resume that work once this matter with USC is resolved. In the meantime, I appreciate your patience.
"You will find many of Prof. Synolakis comments missing from this rebuttal. That is because I will incorporate the large majority of his comments into the paper just as I have been doing with your own comments. He is not receiving any special treatment with regard to paper edits, which is to say that I am judiciously adding them to the paper. As with all suggested changes, the edits may not be included word for word as I attempt to optimize the textual and logical flow of the paper. That is my obligation as first author and I readily accept the duty. Rest assured, I am making the improvements and I will eventually pursue another round of paper comments and edits with all of you one by one. [P] . . .
"I have no idea why an electronic version is preferable to a faxed hardcopy. With four distinct coauthors, only one person can be modifying the electronic version at a time and that person is me. I have no idea why Prof. Synolakis is expecting special treatment. Prof. Synolakis paper comments are no different from any of those made by other coauthors except for their public presentation. As far as I can tell, we are all converging towards a paper consensus. Nevertheless, Prof. Synolakis can at any time retype (or scan) the paper and generate his own electronic version. However, that version would clearly be of no use for paper editing nor for paper submission: both actions are being carried out by me.
"However, because he did not restrict himself to paper comments in his public e-mail, let me explain to you what happened the last time I sent an electronic copy of a paper to Prof. Synolakis. These facts pertain to a Papua New Guinea paper for which an authority coup was carried out around March of this year. After many months of work coordinating input from nine other coauthors and rewriting numerous paper drafts on the 1998 Papua New Guinea tsunami, I was told by Prof. Synolakis that I would no longer be first author of the paper. Prof. Synolakis had secretly arranged to send an electronic version of the paper to another coauthor to be rewritten. He also communicated secretly with select coauthors (after assuring me that he would take no such action) saying that I needed to be punished (for the paper having been rejected) in a bid to gather enough `votes to support the authorship coup. I found out what was going on AFTER the USC workshop at which most of the paper coauthors were present. No meeting amongst the coauthors at the workshop was requested nor arranged by Prof. Synolakis at that time. No actual vote was ever held. Does this sound vaguely similar to a proposal made to you by Prof. Synolakis not so long ago? A good friend and colleague who was also a coauthor convinced me to ignore the authorship coup by insisting that the new paper would get rejected, and that I could put my work into a paper that he had written and would soon publish. My friend was right on both counts. The new author of the Papua New Guinea paper, not having anywhere near my interdisciplinary knowledge of the event, submitted the paper only to have it rejected (vindicating my own efforts in the process). After almost one year of bickering and infighting amongst coauthors initiated and sustained by Prof. Synolakis, the Papua New Guinea paper has still not been published.
"Obviously, recognizing a familiar pattern of behavior on behalf of Prof. Synolakis, this kind of acrimony can and should be avoided amongst ourselves. The surest way of doing this is to ignore Prof. Synolakis and USC so as not to be used as bargaining chips by people such as Steve Yamaguchi or Kelly Bendell. Once this matter with USC is resolved, I will take care of all your concerns in a discrete and professional manner. There will be no lawyers involved in paper submission. And, there will be no more public provocations and acrimony flying through cyberspace. [P] . . .
"This is at least the THIRD baseless and arbitrary claim that I have seen given to take control over this paper. My collaboration with Prof. Synolakis has yielded at least four papers for which he is a coauthor. [P] . . .
"In fact, there are established precedents that refute
the claim made by Prof. Synolakis. As any journal editor can attest to, editors often publish papers in their own journals and there are established journal procedures for editors to avoid conflicts of interest. As a journal editor in his own right, Prof. Synolakis is knowingly contradicting rules that are familiar to him when he makes this claim.
"In plain English, Prof. Synolakis and USC are raising paper submission issues based on baseless and arbitrary claims that are completely and utterly inconsistent with plain facts and standard practice. This is one of the origins of my claim of USC mismanagement of my FEMA subcontract. I can see only two explanations for the e-mails originating from USC: either Prof. Synolakis does not have an actual reason for submitting the paper, or he is not telling us his real reason for making such a request. I contend that his actions are purely retaliatory in nature and that such apparent personal attacks do not concern any of the other coauthors. I will provide supporting evidence for this view below.
"Incidentally, the only reason that we did not use our own code MOST was that Professor Yalciner was more familiar with TSUNAMI-N2. . . . [P] . . .
"I have witnessed MOST simulations given up and shelved by Prof. Synolakis in favor of much more stable TsunamiN2 simulations during several studies performed by Prof. Yalciner. I believe that Prof. Synolakis wrote in his report (and then testified) regarding the 1994 Skagway, Alaska event that MOST simulations produced results that matched those of TsunamiN2. While being intimately involved with those TsunamiN2 simulations from start to finish, I am not aware that any such match was ever achieved. As far as I know, MOST kept blowing up at the steep fjord walls and those simulations were abandoned before producing ANY accurate results. Hence, Prof. Synolakis appears to have claimed to do work that did not taken [sic] place, and then misrepresented to the court the appearance of that fictitious work. This is a serious matter as Prof. Synolakis appears willing to sacrifice his credibility in order to secure his legacy. This is a valid definition of `hubris in classical Greek tragedies. [P] . . .
"I was hired to provide tsunami initial conditions, but I was NOT hired to provide Prof. Synolakis a MODEL to calculate such initial conditions. I have no idea why this has been added here by Prof. Synolakis because it is not in any of my USC subcontracts nor in any other agreement between him and I. I suspect that he is trying to justify a claim to receive TOPICS by misrepresenting the content of these subcontracts. [P] . . .
"I believe the reason for Prof. Synolakis claim is that he has done work for the California Governors Office of Emergency Services with a mean initial tsunami amplitude of 18 meters (which is obviously MUCH larger than the mean 1-2 meters mentioned in our paper) and needs to cover himself from claims of scare mongering. Why did he use such a large local tsunami? . . . [P] . . .
". . . Apparently, Prof. Synolakis holds grudges for at least one decade. [P] Maybe, just maybe, that is why I am going through this matter with USC right now too. During my conversation with Mr. Borreo on Thursday, Nov. 16, 2000, I was told that `you could have ended this months ago which I interpret as evidence of a personal vendetta by Prof. Synolakis. In other words, I am supposed to ignore every breech [sic] of contract made by Prof. Synolakis (or USC) and passively do what he tells me to do. These are what I have been calling the threats emanating from Prof. Synolakis and USC, typically carried out by withholding payment, intervening with fellow coauthors, and other forms of mismanagement. USC lawyers do as they are told by Prof. Synolakis instead of acting in good faith, performing amicable actions, or resolving this matter once and for all. I have repeatedly asked them to do all of the above. [P] . . .
"I do not expect any coauthors to still be reading this e-mail. But if you have such an interest in this matter with USC, please consult the web site for further facts . . . ." (Italics added.)
Defendant sent another e-mail on January 11, 2001. He sent this e-mail to NATO and sent a copy to Kelly Bendell at USC. It read:
"To whom it may concern,
"I am writing to dispute the Organizing Committee of an Advanced Research Workshop on tsunami hazards that is scheduled to be funded by NATO and held in Turkey in May, 2001. At least one of the workshop Organizing Committee members, Prof. Synolakis, is currently being sued by me for, amongst other things, alledgedly [sic] removing my name from papers and proposals (sometimes in clear breech [sic] of contract). As I will prove here, I was supposed to be a member of the Organizing Committee of this NATO Advanced Research Workshop. This is not a minor matter because I am running a company, as opposed to being a professor in an academic institution, and the loss of recognition (which is the apparent motive for removing my name) translates directly into research and consulting dollars from NATO member countries. Please allow me to present my credentials and to prove that I was supposed to be on the Organizing Committee for this NATO workshop. [P] . . .
"Please find attached the MS Word 5.1 file `Ahmet # 1 that is a draft of the proposal submitted to NATO. I am clearly identified as being a member of the Organizing Committee in the draft.
"The e-mails provided at the end of this letter also demonstrate the active role I played in listing participants and writing the proposal. In particular, I bring your attention to my request on April 23, 2000 on the outcome of our NATO proposal. Was my reply honest? NATO is in a position to answer this question. Regardless, nobody can undo my organizing and authorship efforts, especially one who happens to be the worlds leading expert on the workshop subject matter.
"In fact, the NATO proposal was based in large part on the NSF workshop proposal. To see this, please consult the text file `Workshop.txt and compare the NATO proposal text to the workshop proposal text. The use of this material constitutes plagiarism if it was not carried out with my consent, which is clearly conditional on my being a member of the Organizing Committee. I do not believe that Prof. Synolakis contributed one word to or even possesses a copy of the NSF workshop proposal.
"These written records (straight from my hard drive) demonstrate that I have a serious claim to being a member of the workshop Organizing Committee. Moreover, there was never any indication given to me that my presence on the Organizing Committee was disputed or that my name had been removed. In other words, due process was apparently replaced by secretive scheming. Fairness was apparently replaced by retaliation.
"SOLUTIONS
"There are several potential remedies to this unfortunate situation. I have asked Prof. Yalciner to reinstate me as a member of the Organizing Committee, but I have yet to receive a reply from him. NATO may insist that this change occur. Or, NATO may cancel its funding of the workshop on the grounds that a fraudulent proposal was submitted. Please feel free to propose other possible solutions.
"At this point, I am not even being invited to my own workshop. If the workshop takes place without any formal recognition of my role as Organizing Committee member and proposal coauthor, then I will demand some form of compensation from all parties concerned." (Italics added.)
Defendant sent a third e-mail on January 18, 2001. This was a follow-up to the January 11 e-mail and went to NATO with a copy sent to Kelly Bendell. It read:
"To whom it may concern,
"I sent an e-mail last Thursday proving that NATO is funding a fraudulent Advanced Research Workshop regarding tsunami hazards in Turkey in May . . . . [P] At the time, I requested to know what kind of solution NATO would consider taking to redress this unfortunate situation. [P] I have not yet heard a response and would like confirmation from someone[] within NATO that my concerns are being considered and addressed. [P] I would suggest that all reputable scientific organizations need to guard against similar examples of barefaced fraud. [P] Thank you kindly for your attention to this matter." (Italics added.)
Defendant sent an e-mail to plaintiff on March 18, 2002. He sent copies to Cliff Astill, Rick Fragaszy, and Jean-Pierre Bardet. This e-mail read:
"I had been holding the workshop authors TOGETHER in one volume for several months now. I have their unsolicited e-mails asking to publish their work elsewhere, and I have my replies asking them not to. I could no longer ask them to remain part of the original project, because you continued to interfere in what was ready to be published last year.
"Once ONE author decides that there is no hope for arbitration and that he/she is tired of publication delays, then the project that I worked so hard to assemble and to maintain intact is de facto dead, no matter how much I wish that were not the case. I believe that plenty of people have made the point that interference in the Balkema contract was uncalled for.
"Your actions are by definition poorly informed because I think they have ignored standard practice, due diligence, and due process. If you try to hijack the proceedings in secret, then you probably do not know what
the authors are saying to the Managing Editor.
"And, from what you write and say, you refuse to acknowledge a basic fact: landslides are more important than tsunamis. From what I have seen, this is true in terms of mechanical difficulty, multiple hazards, research money, number of researchers, industrial interest, accidental deaths, property damage, . . .
"Therefore, tsunami scientists need landslide researchers, but landslide researchers do not need tsunami scientists. This was my guiding philosophy for the workshop, this suggested minimal use of the word tsunami in the preface and back cover, and this led me to treat the landslide researchers with respect. [P] Researchers have acknowledged that they do not need tsunami scientists in up front and brutally honest e-mails or discussions.
"You have engaged in removing coauthors from papers, killing papers, hijacking proceedings, . . . in what I can only characterize as a wholesale and unilateral attack on my work. As many authors and colleagues have pointed out to you over the last two years, the entire tsunami community suffers from these actions. Is it worthwhile destroying your own field of research for the sake of relentless attacks on my work? What is wrong with solving problems that you apparently spot?
"As I understand the discussion and e-mails, hijacking a proceedings without making any good will effort to present issues for resolution or entering into arbitration will ENSURE that landslide researchers stay away from any and all tsunami researchers (not just you and me). [P] Once again, researchers have said so in very up front and brutally honest e-mails or discussions. Lets hope they have short memories, or will you let them forget?" (Italics added.)
Defendant sent a second e-mail on March 18, 2002 to authors involved in the NSF Workshop Proceedings. He sent copies of the e-mail to plaintiff, Kelly Bendell, Cliff Astill, Rick Fragaszy, and others. This e-mail read:
"I am sorry to burden you with real information, but the events of the past year have shown me that one can build a formidable house of cards out of unchallenged misinformation and fabrications.
"By my count, more than half of the papers covered by the Balkema contract have been withdrawn from the NSF Workshop Proceedings OR will have no new consent form. I do not expect this situation to change in the next few days or weeks.
"Therefore, any claim to be missing only a few consent forms is either cheerleading, or it assumes that the disputed volume will be VERY thin indeed. For example, almost all of the marine geology papers are likely to be absent, and they formed the essential backbone of the NSF Workshop Proceedings that I assembled.
"Also, I find it rather odd that Bardet and Synolakis delayed publication for a year in order to promise a hijacked proceedings by the end of summer. I simply do not believe that this will turn out to be true, in part because my legal case remains to be presented formally to the supposed publisher, and I think it is strong.
"Folks, I do not see a way to salvage ANY proceedings for you, no matter what Bardet and Synolakis promise. The only sensible recommendation I can make is to withdraw your paper from this mess of disputes and publish it elsewhere." (Italics added.)
CONTENTION
Plaintiff contends the trial court erred in sustaining defendants demurrer without leave to amend and dismissing his complaint, in that: (1) The e-mails contain defamatory statements; (2) these statements do not constitute an opinion but rather are statements of fact which may be proved false; and (3) the statements are not privileged. For the reasons set forth below, we disagree.
DISCUSSION
The Trial Courts Ruling
In sustaining defendants demurrer without leave to amend, the trial court stated: "The court has thoroughly reviewed the allegedly defamatory statements listed in the second amended complaint and the contexts thereof by reviewing the entire e-mails in which the statements were made . . . . The five e-mails are published to plaintiff, other academicians and co-authors, and to the international funding agency for one of the workshops, the North Atlantic Treaty Organization (NATO). The statements as a whole are part of defendants professional opinion about plaintiffs scholarly written work on and participation in workshops regarding tsunami hazards, a topic on which defendant considers himself to be an authority. Each e-mail contains express or implied signals that defendant is stating his opinion. For instance, in the 11.27.00 e-mail, he claims plaintiff `appears to have claimed to do work that did not take place . . . . In the 1.11.01 e-mail he writes that the use of certain material would be plagiarism `if it was not carried out with [defendants] consent . . . . Again, in the 1.11.01 e-mail: `I do not believe [plaintiff] contributed one word . . . . In the first 3.18.02 e-mail, he writes, `I think they have ignored standard practice . . . . In the second one, he states, `I simply do not believe this will turn out to be true . . . .
"Those few statements which are of fact and not opinion do not support plaintiffs libel claim for other reasons. For instance, in the 11.27.00 e-mail, defendant accuses plaintiff of knowingly contradicting rules for avoiding conflicts of interest in editors publishing papers in their own journals. In the 1.11.01 and 1.18.01 e-mails, defendant discloses to a NATO department that plaintiff is being sued by defendant for fraudulent practices and breach of contract (removing his name from papers and proposals). These statements are privileged communications because they refer to privileged conduct such as disclosing the fact of a privileged act, i.e., suing another in a court of law or to statements to interested parties such as the other professionals involved in the research and the workshops. (Civ. Code, § 47 .)
"Finally, some statements in the e-mails are simply not defamatory on their face. For instance, in the first 3.18.02 e-mail, defendant wrote to plaintiff: `You have engaged in removing coauthors from papers, killing papers, hijacking proceedings, which I can only characterize as a wholesale and unilateral attack on my work. Apart from the fact that the second half of the statement is an opinion, the rest of the statement is too vague to be considered an accusation of any act which could be considered defamatory. Similarly, in the second 3.18.02 e-mail, defendants statement that `I find it rather odd that Bardet and [plaintiff] delayed publication for a year in order to promise a hijacked proceedings by the end of summer is too vague, even considered in context of the entire e-mail, to conclude plaintiff has been defamed."
Standard of Review
A demurrer tests the sufficiency of the plaintiffs complaint, i.e., whether it states facts sufficient to constitute a cause of action upon which relief may be based. (Code Civ. Proc., § 430.10, subd. (e); Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 841-842.) In determining whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those arising by reasonable implication therefrom; it may not consider contentions, deductions or conclusions of fact or law. (Moore v. Conliffe (1994) 7 Cal.4th 634, 638, 871 P.2d 204; Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) The trial court also may consider matters of which it may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.) A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 831 P.2d 317; Jager v. County of Alameda (1992) 8 Cal.App.4th 294, 297.)
On appeal, we review the trial courts sustaining of a demurrer without leave to amend de novo, exercising our independent judgment as to whether a cause of action has been stated as a matter of law and applying the abuse of discretion standard in reviewing the trial courts denial of leave to amend. (Montclair Parkowners Assn. v. City of Montclair , supra, 76 Cal.App.4th at p. 790; Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497-1498.) Plaintiff bears the burden of demonstrating the trial court erred in sustaining the demurrer or abused its discretion in denying leave to amend. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc., supra, 68 Cal.App.4th at pp. 459-460; Coutin v. Lucas (1990) 220 Cal. App. 3d 1016, 1020, 270 Cal. Rptr. 93.)
As will be discussed below, the question whether a statement is libelous is one of law. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260, 228 Cal. Rptr. 206, 721 P.2d 87.) It therefore properly is resolved on demurrer. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 578; Corman v. Blanchard (1962) 211 Cal. App. 2d 126, 132, 27 Cal. Rptr. 327.)
Libel
"Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ. Code, § 45.) The key to recovery for libel is that the writing at issue contains a false statement of fact rather than opinion. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 259-260.) "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas." (Ibid.)
Whether a writing contains a false statement of fact or a statement of opinion is a question of law for the court. (Baker v. Los Angeles Herald Examiner , supra, 42 Cal.3d at p. 260.) In resolving this question, "the court must place itself in the position of the . . . reader, and determine the sense or meaning of the statement according to its natural and popular construction." (Ibid.)
"The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one. `What constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion. [Citation.]" (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260.)
The court therefore must consider the publication in its entirety. It may not divide the publication into segments and consider each segment separately. The publication ""must be read as a whole in order to understand its import and the effect which it was calculated to have on the reader [citations], and construed in the light of the whole scope and apparent object of the writer, considering not only the actual language used, but the sense and meaning which may have been fairly presumed to have been conveyed to those who read it. [Citation.]"" (Baker v. Los Angeles Herald Examiner , supra, 42 Cal.3d at p. 261.)
"For these reasons, California courts have developed a `totality of the circumstances test to determine whether an alleged defamatory statement is one of fact or of opinion. First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. [Citations.] Where the language of the statement is `cautiously phrased in terms of apparency, the statement is less likely to be reasonably understood as a statement of fact rather than opinion. [Citation.]" (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 260-261, fn. omitted.) In looking at the language of the statement, the court looks at "what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the publication." (Selleck v. Globe International, Inc. (1985) 166 Cal. App. 3d 1123, 1131, 212 Cal. Rptr. 838; accord, Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803, 163 Cal. Rptr. 628, 608 P.2d 716.) In addition, if what appears to be a statement of opinion implies "a provably false assertion of fact," it may be considered defamatory. (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1383; accord, Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-21, 111 L. Ed. 2d 1, 110 S. Ct. 2695.)
Second, the court must consider the context in which the statement was made. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 261.) Inasmuch as the meaning of a word may vary depending on "the circumstances and the time in which it is used[,] the facts surrounding the publication must also be carefully considered." (Ibid.) These facts include "the knowledge and understanding of the audience to whom the publication was directed." (Ibid.)
Analysis
In examining the e-mails defendant sent, we must determine whether the intended readers reasonably would have understood defendants allegedly libelous statements to have been statements of fact or statements of opinion. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 261.) We now turn to defendants November 27, 2000 e-mail, sent to the coauthors of a scientific paper.
The context of the allegedly libelous comments makes it clear that defendant was responding to plaintiffs comments on the paper, attempting to rebut those comments "in order to defend [his] legal ground." He was questioning the motives behind some of plaintiffs actions, suggesting that plaintiff was attempting to take over first authorship of the paper from defendant and was taking retaliatory actions against defendant for reasons unrelated to the paper at issue. As the trial court found, "the statements as a whole are part of defendants professional opinion about plaintiffs scholarly written work on and participation in workshops regarding tsunami hazards, a topic on which defendant considers himself to be an authority. Each e-mail contains express or implied signals that defendant is stating his opinion."
These signals include such phrases as "I have no idea why," "as far as I can tell," "I can see," "I contend," "I believe" "I am not aware," "Prof. Synolakis appears," "I suspect," and "I interpret," peppered throughout the e-mail. Additionally, the "potentially defamatory statements [were] published in a public debate . . . in which the audience [would have] anticipated efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole." (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260.) In such a setting, defendants alleged statements of fact would be interpreted as statements of opinion. (Ibid .; see, e.g., Dong v. Board of Trustees (1987) 191 Cal. App. 3d 1572, 1585-1587, 236 Cal. Rptr. 912.)
In the January 11, 2001 e-mail, defendant revealed that he already was involved in litigation with plaintiff. In conjunction with the "express or implied signals that defendant is stating his opinion" recognized by the trial court, the clear implication of the e-mail was that defendant was expressing his opinion of defendant through accusations of misconduct in order to persuade the readers to accord him recognition and a position in the workshop rather than defendant. Again, in context, defendants statements would be recognized as opinion rather than fact. (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260.) The same holds true for the follow-up January 18, 2001 e-mail.
We also agree with the trial court as to the March 18, 2002 e-mails. The allegedly defamatory statements therein not only are phrased in the form of opinions, but they are so vague that they are incapable of being proven false. (Eisenberg v. Alameda Newspapers, Inc., supra, 74 Cal.App.4th at p. 1383; Rudnick v. McMillan, supra, 25 Cal.App.4th at p. 1191.)
In sum, we agree with the trial court that the statements contained in the e-mails are not defamatory as a matter of law. The trial court therefore properly sustained defendants demurrer and dismissed the action on that basis. (Campanelli v. Regents of University of California, supra, 44 Cal.App.4th at p. 578; Corman v. Blanchard, supra, 211 Cal. App. 2d at p. 132.)
For this reason, we need not decide whether the trial court properly decided the matter on the additional basis of privilege.
The order is affirmed.
We concur: VOGEL (MIRIAM A.), J., MALLANO, J.