JOHN IBARRA v. DAVID CARPINELLO (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

INTRODUCTION

Plaintiff and appellant John Ibarra brought an action, inter alia, for defamation against defendants and appellants David Carpinello and Punch Drunk Gamer, Inc. (PDG),¹ Hearst Corporation (Hearst) and Houston Chronicle (Chronicle).²  Plaintiff appeals from the trial court's orders granting defendants' special motions to strike (SLAPP motions), which motions were filed pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute).³  We affirm the orders because plaintiff did not show a probability of prevailing on his claims in that he did not submit a prima facie case showing the required malice.   We remand the matter to the trial court for a determination of appellate attorney fees and costs to be awarded defendants.

BACKGROUND

A.  Factual Background

For more than 28 years, plaintiff had been a trainer and manager of mixed martial arts fighters, and from July 2005 to July 2008, he trained Quinton “Rampage” Jackson.   In July 2008, 10 days after Jackson lost a championship fight, he was arrested at gunpoint and booked for evading officers, hit and run driving, and reckless driving arising from Jackson's involvement in a series of vehicle accidents.   Jackson was also placed in a psychiatric ward for 72 hours.   Also after Jackson lost the championship fight, Jackson fired plaintiff as his trainer.   Numerous websites reported that Jackson's decision to fire plaintiff appeared to “involve[ ] money.”

On September 4, 2008, Carpinello, the PDG founder, publisher, and editor interviewed Tito Ortiz, a mixed martial arts fighter for the PDG website.   The interview was published on the PDG website and included the following exchange:  “PDG:  [W]hat do you think of [Jackson] changing trainers and camps from ․ [plaintiff] to Team Wolfslair?  [¶] Ortiz:  Let me explain this to you because it really pisses me off that [plaintiff] has done what he has done, he is a thief.   I have been running training camps for seven years up in Big Bear California and the most that my camp has cost a fighter to attend is $35,000.   [Plaintiff] was charging Jackson $65,000 to go to Big Bear. I don't understand that!!   He was being very disrespectful and taking advantage of [Jackson].   Including travel, training partners, food and lodging, the most ever [that I charged for a training camp] was $35,000, maybe if you flew in more trainers [I would charge] $40K. Where did that extra money go that [plaintiff] was charging?  [Jackson] is really pissed and he feels betrayed and that he was taken advantage of and I couldn't agree more with him.   I don't care if [plaintiff] reads this or hears about it anywhere, he already knows that he is blackballed.   I don't care who you are;  fighters work very hard for the money they earn and I feel slighted for even knowing [plaintiff].”

On September 8, 2008, Jared Barnes, an author of a weblog ⁴ for Chronicle defendants, republished Ortiz's comments and added his own thoughts on Jackson's termination of his relationship with plaintiff, stating, “[Ortiz's comments are] the first time anyone has given any kind of public explanation for what happened between [plaintiff] and [Jackson].   And while [Jackson] has reason to feel betrayed, deceived, hurt etc. it's still extremely difficult to justify his hit-and-run antics and temporary God complex because of it.   Everyone is going to get taken sometime over the span of their life and while it's tough to deal with, it has to be dealt with like a grown up, not like a kid with access to a monster truck.  [¶] The way to deal with [plaintiff] is to take him to court or to publically state how much of a crook he is which is sure to black ball him from the sport.   Let's hope other fighters can learn what not to do in this situation from the now infamous Jackson incident.   But, then again rampages through So. Cal. by pro MMA fighters are pretty great fodder for blogging.”

On May 13, 2009, plaintiff's counsel sent a letter to PDG defendants stating that Ortiz's statements during the September 4, 2008, interview that plaintiff “was ‘a thief’ and impl[ying] that ․ [plaintiff had] stolen from and taken advantage of” Jackson were false and defamatory and demanded an immediate retraction.   In response, PDG defendants advised plaintiff's counsel that they were standing by the story, refused “[a]t this time” to retract it, and invited plaintiff “to offer his side of the events which, following reasonable investigation to confirm accuracy could appear on the front page of PDG.” Plaintiff asserts that on May 20, 2009, plaintiff's counsel sent a letter to Chronicle stating that Ortiz's statements during the September 4, 2008, interview that plaintiff was a thief and conveying that plaintiff stole from and took advantage of Jackson were false and defamatory and demanded an immediate retraction.

B. Procedural Background

On June 5, 2009, plaintiff filed a complaint against 26 parties associated with mixed martial arts websites, including defendants, alleging four causes of action:  defamation, invasion of privacy (false light), intentional infliction of emotional distress, and negligent infliction of emotional distress.   Plaintiff bases each of the causes of action on the publication of Ortiz's September 4, 2008, statements, and on any “added defamatory remarks” made in the publications.

Defendants filed special motions to strike the lawsuit under section 425.16.   The trial court ruled on the evidentiary objections.   The trial court excluded the retraction letter sent to the Chronicle as not authenticated and lacking in evidence it was received.   The trial court granted the motions, finding that plaintiff did not show a probability of prevailing on his claims.

DISCUSSION

A.  Standard of Review

An order granting a special motion to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)   We review the trial court's order de novo.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 325;  Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79.)   We do not weigh the evidence;  rather, we accept as true evidence favorable to plaintiff, and evaluate evidence favorable to defendant to determine whether it defeats plaintiff's claim as a matter of law.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3;  Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.)

Courts have said that they review a trial court's evidentiary rulings in connection with an anti-SLAPP motion for an abuse of discretion.  (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. 3;  Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1444.)   They based this on the purported standard of review of evidentiary rulings in summary judgment motions.   But in Reed v. Google, Inc. (2010) 50 Cal.4th 512, 535 the Supreme Court recently said, “we need not decide generally whether a trial court's rulings on evidentiary objections based on papers along in summary judgment proceedings are reviewed for abuse of discretion or reviewed de novo.”   We do not have to resolve that issue here.

B. Legal Principles

“ ‘A SLAPP suit-a strategic lawsuit against public participation-seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances.  [Citation.]  The Legislature enacted Code of Civil Procedure section 425.16-known as the anti-SLAPP statute-to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights.   [Citation.]’  (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].)”  (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 34.)  “The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings.”  (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.)

Section 425.16, provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue 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).)   In considering the application of the anti-SLAPP statute, courts engage in a two-step process.  “ ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity․  If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’  (Citation.)”  (Taus v. Loftus (2007) 40 Cal.4th 683, 712.)  “ ‘ “ ‘The defendant has the burden on the first issue, the threshold issue;  the plaintiff has the burden on the second issue.  [Citation.]’  [Citation.]”  [Citations.]' ”  (Rohde v. Wolf, supra, 154 Cal.App.4th at pp. 34-35.)  “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute-i.e., that arises from protected speech or petitioning and lacks even minimal merit-is a SLAPP, subject to being stricken under the statute.’  [Citation.]”  (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)

Plaintiff does not challenge the trial court's ruling that defendants met their initial burden under the anti-SLAPP statute-that the challenged cause of action is one arising from protected activity.   The only issue is whether the trial court correctly determined that plaintiff did not establish a probability of prevailing on his claims.

C. Probability of Prevailing on the Merits

1.  Plaintiff's prima facie showing of a likelihood of prevailing

“To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor.  [Citations.]  The plaintiff's showing of facts must consist of evidence that would be admissible at trial.  [Citation.]  The court cannot weigh the evidence, but must determine whether the evidence is sufficient to support a judgment in the plaintiff's favor as a matter of law, as on a motion for summary judgment.  [Citations.]”  (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346;  see College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719-720, fn. 5;  1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.)   Plaintiff contends he demonstrated a likelihood he would prevail on the merits of his claims.

2. Defamation

The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.  (Civ.Code, §§ 45, 46;  Taus v. Loftus, supra, 40 Cal.4th at p. 720.)   Plaintiff contends that “Ortiz's assertion that [plaintiff] ‘is a thief’ and his related remarks” were false and defamatory.   Plaintiff also contends Chronicle defendants defamed him because Barnes stated that plaintiff was a “crook,” and Barnes's statements generally adopted Ortiz's remark that plaintiff was a thief.

There is no dispute that because plaintiff is a public figure, in order to prevail, he must establish that defendants acted with actual malice.  (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280;  Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 262;  Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.)  “[A]ctual malice means that the defamatory statement was made ‘with knowledge that it was false or with reckless disregard of whether it was false or not.’  (New York Times Co. v. Sullivan, supra, 376 U.S. 254, 280 [84 S.Ct. 710, 726].)   Reckless disregard, in turn, means that the publisher ‘in fact entertained serious doubts as to the truth of his publication.’  (St. Amant v. Thompson [ (1968) ] 390 U.S. 727, 731.)   To prove actual malice, therefore, a plaintiff must ‘demonstrate with clear and convincing evidence that the defendant realized that his statement was false or that he subjectively entertained serious doubts as to the truth of his statement.’  (Bose Corp. v. Consumers Union of U.S., Inc. [ (1984) ] 466 U.S. 485, 511, fn.   30 [104 S.Ct. 1949, 1965];  see also McCoy v. Hearst Corp. [ (1986) 42 Cal.3d [835, 860 [231 Cal.Rptr. 518, 727 P.2d 711].)[¶]  Actual malice is judged by a subjective standard;  otherwise stated, ‘there must be sufficient evidence to permit the conclusion that the defendant ․ had a “high degree of awareness of ․ probable falsity.” ’  (Harte-Hanks Communications v. Connaughton [ (1989) ] 491 U.S. 657, 688 [109 S.Ct. 2678, 2696].)”  (Khawar v. Globe International Inc., supra, 19 Cal.4th at p. 275.)   The common-law standard of malice, which involves hatred or ill will towards the plaintiff, is not an element of the New York Times standard.   (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 872.)

3. Defamatory Statements

In determining malice, one must first determine which statements may be considered defamatory.  “The sine qua non of recovery for defamation ․ is the existence of falsehood.”  (Old Dominion Branch No. 496, National Association of Letter Carriers v. Austin (1974) 418 U.S. 264, 283.)  “To state a defamation claim that survives a First Amendment challenge, ․ [the] plaintiff must present evidence of a statement of fact that is ‘provably false.’   [Citations.]  ‘ “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.’  [Citations.]  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.]”  [Citation.]   The dispositive question ․ is whether a reasonable trier of fact could conclude that the published statements imply a provably false factual assertion.  [Citation.]'  [Citation.]  [¶] To ascertain whether the statements in question are provably false factual assertions, courts consider the ‘ “ ‘totality of the circumstances.’ ” '  [Citation.]”  (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048-1049.)

In determining whether statements are false factual assertions or protected opinion, the trial court must first look to the language of the statement itself, and second, consider the context in which the statement was made.   (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260-261.)  “An opinion ․ is actionable only ‘if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.’ ”   (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1471;  Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 386.)   Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court.  (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th 1027, 1048-1049;  Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 368.)

A written statement is defamatory if it “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.)   A statement is defamatory on its face if it “is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact.”  (Civ.Code, § 45a.)  “Where the statement is defamatory on its face, it is said to be libelous per se, and actionable without proof of special damages.”  (5 Witkin, Summary of Cal. Law (10th ed.   2005) Torts, § 541, p. 794 (Witkin);  Civ.Code, §§ 45a, 46, subd. 1.) An allegation the plaintiff is guilty of a crime is libelous on its face.   (Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1145, fn 7;  Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1136.)

In the context of the defense of truth-”i.e., that the statement is not false-defendants do not have to prove the ‘literal truth’ of the statement at issue.  (Emde v. San Joaquin County Central Labor Council (1943) 23 Cal.2d 146, 160 [143 P.2d 20].)  ‘[S]o long as the imputation is substantially true so as to justify the “gist” or “sting” of the remark’ the truth defense is established.  [Citations.]”  (Hughes v. Hughes (2004) 122 Cal.App.4th 931, 936.)  “[T]he Restatement Second of Torts states in section 581A, comment c, as follows:  ‘If the defamatory statement is a specific allegation of the commission of a particular crime, the statement is true if the plaintiff did commit that crime.   If the accusation is general and implies the commission of unspecified misconduct of a particular type, the statement is true if the plaintiff committed any misconduct of that type.’ ”  (Id. at p. 937.)   “[C]onsider the case of a plaintiff objecting to the defendant's accusation that the plaintiff is a thief.   It is well established that, although the charge is general, proof of a single instance of larceny will establish the truth thereof.”  (Murnaghan, Ave Defamation, Atque Vale Libel and Slander (1976) 6 Balt. L.Rev. 28, 40.)  “The issue of whether a statement is true or substantially true is normally considered to be a factual one.  [Citations.]”  (Hughes v. Hughes, supra, 122 Cal.App.4th at p. 937.)

Regarding Ortiz's statement that plaintiff “is a thief,” whether it concerned the particular crime of theft, or whether the “gist” or “sting' of the statement implied that plaintiff committed a general crime, plaintiff provided prima facie evidence that neither was true.   Plaintiff declared he was not a thief or a crook, that he had never stolen or misappropriated anything from Jackson, and that he had never been charged with or convicted of a crime.   Similarly, Jackson's financial advisor declared that he was familiar with Jackson's books and records pertaining to the costs and expenditures associated with Jackson's training, and he had not seen any irregularities by plaintiff in his charges to Jackson.

Ortiz's statement that plaintiff “is a thief,” however, does not stand alone.   As previously noted, it's impact must be viewed in the context of the “totality of the circumstances.”  (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at pp. 1048-1049;  see also Regalia v. The Nethercutt Collection, supra, 172 Cal.App.4th at p. 368.)   The court in Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th 375, in holding that statements that plaintiff “stole” copyrighted material and “plagiarized” data, in context, were rhetorical hyperbole, stated:  “[The defendant] is not, and did not purport to be, an attorney.   The average reader therefore would not have assumed the statements ․ had the weight of a legal opinion.   Although [the defendant] did not temper his opinions with words of transparency, neither did he present his opinions as legal truths framed in legal verbiage.   Indeed, his statements that [the plaintiff] ‘stole’ copyrighted material, ‘compromised’ [defendant's company], and ‘plagiarized’ data appear in context as rhetorical hyperbole.  (Moyer v. Amador Valley J. Union High School Dist. [ (1990) ] 225 Cal.App.3d [720], 726;  see also Letter Carriers v. Austin [1979] 418 U.S. [264,] 283 [‘ “traitor[s]” ’ understood to mean that plaintiffs' actions were reprehensible, not that plaintiffs had committed treason];  Greenbelt Coop. Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14 [26 L.Ed.2d 6, 90 S.Ct. 1537] [‘ “blackmail’ ” a vigorous epithet used to describe unreasonable negotiations];  Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 278-279, 105 Cal.Rptr.2d 674 [calling plaintiff a ‘thief’ and ‘liar’ during political campaign was hyperbole];  Morningstar, Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 687-694 [29 Cal.Rptr.2d 547] [title stating ‘ “Lies, Damn Lies, and Fund Advertisements” ’ held not to imply money management fund actually lied].)”  (Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at p. 389;  see also Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1119-1120 [“dumb asses”].)

Applying the totality of the circumstances test, Ortiz's statement that plaintiff was a thief cannot reasonably be understood to mean in the literal sense that plaintiff had committed the crime of theft ⁵ or any other similar crime.   Ortiz's statement that plaintiff “is a thief,” when read in context with Ortiz's other statements, reasonably meant that plaintiff overcharged Jackson to attended training camp.   Whether plaintiff overcharged Jackson is not a verifiable fact, but instead is an

But Ortiz's opinion that plaintiff was overcharging Jackson to attend training camp and thereby taking advantage of Jackson, was premised upon Ortiz's factual statement that plaintiff charged Jackson $65,000 to attend the training camp.   An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false.  (Franklin v. Dynamic Details, Inc., supra, 116 Cal.App.4th at pp. 386-387.)   Plaintiff provided prima facie evidence that he did not charge Jackson $65,000 to attend camp.   Plaintiff declared that he did not have a camp for which he could charge Jackson, that he did not charge Jackson any amount to attend Jackson's own camp, that he never obtained any fees in connection with the costs associated with plaintiff's training.   Also, in opposition to PDG defendants' special motion to strike, plaintiff submitted a declaration that he “never charged [plaintiff] for anything.”   In addition, plaintiff submitted the declaration of one of Jackson's financial advisors ⁶ that every month he met with Jackson and Jackson's other financial advisor to discuss Jackson's business affairs;  that he was unaware of plaintiff having received any money from Jackson's bank account for fees or costs in connection with Jackson's camp;  and that he had not seen any evidence that plaintiff took advantage of Jackson or that plaintiff engaged in any self-dealing to Jackson's detriment.   Plaintiff and the financial advisor also declared in opposition to PGD defendants' special motion to strike, that plaintiff did not charge Jackson $65,000.   Plaintiff, therefore, made a prima facie showing in opposition to the special motions to strike that the Ortiz's statements were premised on the false statement of fact that plaintiff charged Jackson $65,000 to attend a training camp.

Regarding the statements published by Chronicle defendants, in addition to publishing a quote from PDG defendants' interview of Ortiz and citing the source of the quote, Chronicle defendants published Barnes's statements.   Barnes's statements, however, were merely his opinions.   Barnes's statements were critical of Jackson's reaction to his business dealings with plaintiff.   Barnes also stated that Jackson should have taken plaintiff “to court or publically state how much of a crook [plaintiff] is which is sure to blackball him from the sport.”   It is not reasonable to conclude that Barnes was calling plaintiff “a crook”in the literal sense.⁷  Barnes was merely stating his opinion of how Jackson should have handled the scenario, instead of “his hit-and-run antics[,] temporary God complex,” and dealing with it “like a kid with access to a monster truck”.   In addition, the statement “how much of a crook he is” implies that plaintiff may not be a crook at all.   Furthermore, the statement is based upon Ortiz's opinion that plaintiff overcharged Jackson for attending training camp.   A reasonable trier of fact could not conclude that Barnes's statements were statements of fact.

4. Lack of Actual Malice

As discussed ante, the only false statement published by defendants was Ortiz's statement that plaintiff charged Jackson $65,000 to attend a training camp.   Plaintiff “must prove by clear and convincing evidence that [defendants] knew the statements [were] false or had serious doubts about the truth of the statements.”  (Judicial Council of California Civil Jury Instructions, CACI Nos. 1700, 1701.)

Plaintiff contends that defendants acted with actual malice because defendants failed to investigate Ortiz's statements before publishing them.   But the failure to conduct a thorough and objective investigation, standing alone, does not prove actual malice, nor even necessarily raise a triable issue of fact on that controversy.  (See St. Amant v. Thompson, supra, 390 U.S. at p. 733;  Beckley Newspapers Corp. v. Hanks (1967) 389 U.S. 81, 84-85.)  “ ‘[F]ailure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient.’  [Citation.]”  (Khawar v. Globe Internat., Inc., supra, 19 Cal.4th at pp. 276.)  “ ‘ “There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.”  [Citation.]  Lack of due care is not the measure of liability, nor is gross or even extreme negligence.’  [Citation.]”  (Christian Research Institute v. Alnor, supra, 148 Cal.App.4th at p. 90.)   Actual malice may be shown by a failure to investigate “ ‘where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports.’  [Citation.]”  (Id. at p. 85.)

Plaintiff argues that defendants should have investigated Ortiz's statements before publishing them based on “Ortiz's statements that [plaintiff] is a ‘thief’ and [that] he does not care if [plaintiff] reads his remarks or hears about them because [plaintiff] already knows he is blackballed from the sport․”  Those statements, however, do not establish that defendants had obvious reasons to doubt the truth of Ortiz's statement that plaintiff charged Jackson $65,000 to attend a training camp, or that defendants knew it was false or that [defendants] subjectively entertained serious doubts as to the truth of the statement.  (Harte-Hanks Communications v. Connaughton, supra, 491 U.S. at p. 688.)   As noted, ante, Ortiz's statement that plaintiff was a “thief,” in context, reasonably meant that plaintiff overcharged Jackson to attended training camp.   In addition, Ortiz's statement that he did not care if plaintiff read or heard his remarks suggests that Ortiz was confident about the truthfulness of his statements.   Reliance on a source known to be hostile towards plaintiff could suggest a reason to doubt the source's veracity and thus result in malice.  (Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497.)   As to defendants' knowledge of any such hostility by Ortiz, just an adversarial relationship is not sufficient.  (Ibid.) Plaintiff argues that the “hostile and contemptuous” nature of Ortiz's remarks should have put defendants on notice to investigate them.   That the statements might be hostile or contemptuous does not adequately indicate that the fact of the $65,000 training camp charge is false.   Plaintiff's evidence, at best, raises “a speculative possibility that [defendants] might have known or suspected” that the statement was incorrect and that is not sufficient.  (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1170;  see Copp v. Paxton (1996) 45 Cal.App.4th 829, 848.)

Plaintiff also contends that defendants acted with actual malice because, after they published the statements, they failed to investigate and issue retractions based upon correspondence they received from plaintiff's counsel claiming that the statements were false.   The failure to conduct a postpublication investigation and retraction after notice of falsity does not constitute malice at the time the publication was made.   Actual malice is measured by the defendant's subjective awareness of falsity at the time of publication.  (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 286;  Khawar v. Globe International, Inc., supra, 19 Cal.4th at p. 262.)   Defendants' publication on the Internet, no matter how long it remained available thereafter, is deemed a single publication as of the date it was first posted.  (Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883, 890;  Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 395, 402-404.)   The failure of defendants to retract or correct a story does not itself constitute actual malice.  (New York Times Co. v. Sullivan, supra, 376 U.S. at p. 286.)

Although failure to conduct a postpublication investigation and retraction after notice of falsity does not constitute actual malice at the time the publication was made, the failure to investigate or retract “might be relevant ” to show actual malice at the time the statement was published.   (Restatement (Second) of Torts, § 580A comment d (1977), at p. 219;  italics added;  see, also, Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1012;  Church of Scientology of California v. Dell Publishing Co., Inc. (1973) 362 F.Supp. 767, 770.)   Plaintiff has not submitted a prima facie case of clear and convincing evidence that defendants acted with malice.

Three weeks before plaintiff filed his lawsuit, plaintiff's counsel sent a letter to PDG defendants stating that the statements PDG defendants published-over eight months earlier-that plaintiff was a thief, and conveying that plaintiff stole from Jackson and took advantage of him, were false and defamatory, and plaintiff's counsel demanded an immediate retraction.   The letter did not advise PDG defendants that plaintiff did not charge Jackson $65,000 to attend the training camp.   In response, PDG defendants invited plaintiff “to offer [to PDG defendants] his side of the events which ․ could appear on the front page of PDG.” The PDG defendants also offered to plaintiff's attorney “to provide the time and space on the website that Plaintiff deemed necessary to present ‘his side’ of the developing controversy-equal time and space or ‘whatever it took.’  [Plaintiff's] attorney [however] did not accept [the] offer.”   This evidence does not establish that PDG defendants acted eight months earlier with a conscious disregard of the truth of the published statements.

Also, plaintiff contends his attorney sent a letter to Chronicle, virtually identical to the one sent to PDG defendants, over eight months after Chronicle defendants published their statements, and only over two weeks before plaintiff filed his lawsuit.⁸  Chronicle defendants removed the statements from their website after they were sued.   Defendants' responses to plaintiff's letters demanding a retraction does not establish that defendants' acted with actual malice at the time they published the statements.   When it is undisputed that the Chronicle defendants knew plaintiff contended the statements were false, they removed the statements from their website.

Plaintiff did not show a probability of prevailing on his claim of defamation because plaintiff did not submit sufficient evidence to establish a prima facie showing that defendants acted with malice.   Because we hold that plaintiff did not establish by clear and convincing evidence that defendants acted with malice, we do not reach defendants' additional arguments concerning liability for the statements in question.

5. Plaintiff's Other Causes of Action

Plaintiff also asserted causes of action for invasion of privacy (false light), intentional infliction of emotional distress, and negligent infliction of emotional distress.   As the trial court ruled, each of those claims is based upon plaintiff's claim of defamation.   Plaintiff does not dispute the argument by PDG defendants that plaintiff's causes of action for invasion of privacy (false light), intentional infliction of emotional distress, and negligent infliction of emotional distress are “in substance equivalent” to the defamation claim.   Moreover, plaintiff did not address specifically whether he established a probability of prevailing on the merits of these claims other than to state in a footnote in his opening brief that his “showing on his defamation claim is sufficient to allow him to go forward on his related claims for invasion of privacy and intentional and negligent infliction of emotional distress.”

To prevail on a false light invasion of privacy claim, a plaintiff must show that the defendants made statements placing him in a false light that would be highly offensive to a reasonable person.  (Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 238-239;  see also M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, 636 [a false light invasion of privacy claim “exposes a person to hatred, contempt, ridicule, or obloquy and assumes the audience will recognize it as such”].)  “An action for invasion of privacy by placing the plaintiff in a false light in the public eye [citation] is in substance equivalent to a libel claim.”  (Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1133.)

To establish a claim for intentional infliction of emotional distress, a plaintiff must show that the defendant engaged in extreme or outrageous conduct with the intent of causing, or in reckless disregard of the probability of causing, emotional distress.  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)  “[T]he tort does not extend to ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ”  (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)

A claim of negligent infliction of emotional distress is not an independent tort but rather is a negligence tort to which the traditional elements of duty, breach of duty, causation, and damages apply.  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984;  Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1072;  Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)   To recover damages for emotional distress on a claim of negligence where there is no accompanying personal, physical injury, the plaintiff must show that the emotional distress was “serious.”  (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 927-930;  Burgess v. Superior Court, supra, 2 Cal.4th at p. 1073, fn. 6;  Potter v. Firestone Tire & Rubber Co., supra, 6 Cal.4th at p. 999;  Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.)  “ ‘[S]erious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case.’  [Citation.]”  (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d. at p. 928, quoting Rodrigues v. State (1970) 52 Hawaii 156, 283.)   Plaintiff has not submitted sufficient evidence to support such a claim.

As with plaintiff's defamation claim, plaintiff has not submitted evidence showing a prima facie case on his claims for invasion of privacy (false light), intentional infliction of emotional distress, and negligent infliction of emotional distress.   His invasion of privacy (false light) claim “is in substance equivalent to a libel claim.”  (Selleck v. Globe International, Inc., supra, 166 Cal.App.3d at p. 1133.)   Similarly, plaintiff has failed to provide evidence or argument that defendants engaged in extreme or outrageous conduct or breached a duty owed to plaintiff.

Our conclusions are based solely on the evidence submitted in connection with the anti-SLAPP motions.   We do not opine on any legal or evidentiary issues beyond the issues raised by those motions.

D. Attorney Fees and Costs

Defendants contend they are entitled to their attorney fees and costs on appeal.  Section 425.16, subdivision (c)(1) states that, “[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.” ⁹  “ ‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.  [Citations.]’  (Evans v. Unkow, supra, 38 Cal.App.4th at pp. 1499-1500.)  Section 425.16, subdivision (c) provides that a prevailing defendant is entitled to recover attorney fees and costs, and does not preclude recovery on appeal.  [Citation.]”  (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, overruled on other grounds as stated in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5;  see also Liu v. Moore (1999) 69 Cal.App.4th 745, 754.)   Defendants, therefore, are entitled to their attorney fees and costs on plaintiff's appeal as the parties prevailing on the appeal.  (Cal. Rules of Court, rule 8.278(a)(2) [“The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal”];  Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448 [defendant is entitled to attorney fees and costs incurred in plaintiff's appeal as prevailing defendant on the anti-SLAPP motion].   We remand for the limited purpose of permitting the trial court to exercise its discretion on the amount to award defendants for their attorney fees and costs for the appeal.

DISPOSITION

The trial court's orders denying defendants' special motions to strike pursuant to section 425.16 are affirmed, and the matter is remanded for an award of attorney fees and costs for the appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

We concur:

FOOTNOTES

FN1. Carpinello and PDG are referred to as PDG defendants..  FN1. Carpinello and PDG are referred to as PDG defendants.

FN2. Hearst and Chronicle are referred to as Chronicle defendants..  FN2. Hearst and Chronicle are referred to as Chronicle defendants.

FN3. All statutory citations are to the Code of Civil Procedure unless otherwise noted..  FN3. All statutory citations are to the Code of Civil Procedure unless otherwise noted.

FN4. O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1463-1464, fn. 21 (explaining that “the term ‘blog’ ” was “apparently derived from ‘we blog,’ a whimsical deconstruction of ‘weblog,’ a compounding of ‘Web log,’ which originally described a kind of online public diary in which an early Web user would provide links to, and commentary on, interesting Web sites․  [Citation].   The term [blog] may now be applied to any Web site sharing some of the characteristics of these early journals”)..  FN4. O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1463-1464, fn. 21 (explaining that “the term ‘blog’ ” was “apparently derived from ‘we blog,’ a whimsical deconstruction of ‘weblog,’ a compounding of ‘Web log,’ which originally described a kind of online public diary in which an early Web user would provide links to, and commentary on, interesting Web sites․  [Citation].   The term [blog] may now be applied to any Web site sharing some of the characteristics of these early journals”).

FN5. Penal Code section 484, subdivision (a) provides in part that, “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.”.  FN5. Penal Code section 484, subdivision (a) provides in part that, “Every person who shall feloniously steal, take, carry, lead, or drive away the personal property of another, or who shall fraudulently appropriate property which has been entrusted to him or her, or who shall knowingly and designedly, by any false or fraudulent representation or pretense, defraud any other person of money, labor or real or personal property, or who causes or procures others to report falsely of his or her wealth or mercantile character and by thus imposing upon any person, obtains credit and thereby fraudulently gets or obtains possession of money, or property or obtains the labor or service of another, is guilty of theft.”

FN6. The PDG defendants argue that the declaration from Jackson's financial advisor is based only on his “awareness” and therefore did not support plaintiff's showing that the statements were false.   The declaration, however, establishes that the declarant's “awareness” was broad.   It provides that the declarant was Jackson's business and financial advisor, and in that capacity he became familiar with the books and records pertaining to Jackson's business, including the costs and expenditures associated with Jackson's training.   The declaration also provides that every month the declarant met with Jackson and Jackson's other financial advisor to discuss Jackson's business affairs.   In any event, plaintiff's declaration alone provides sufficient prima facie evidence of the falsity of defendants' statements..  FN6. The PDG defendants argue that the declaration from Jackson's financial advisor is based only on his “awareness” and therefore did not support plaintiff's showing that the statements were false.   The declaration, however, establishes that the declarant's “awareness” was broad.   It provides that the declarant was Jackson's business and financial advisor, and in that capacity he became familiar with the books and records pertaining to Jackson's business, including the costs and expenditures associated with Jackson's training.   The declaration also provides that every month the declarant met with Jackson and Jackson's other financial advisor to discuss Jackson's business affairs.   In any event, plaintiff's declaration alone provides sufficient prima facie evidence of the falsity of defendants' statements.

FN7. A crook is “a dishonest person, esp a swindler or thief.”  (Collins English Dictionary-Complete & Unabridged (10th Ed.2009) retrieved Feb. 2, 2011, from dictionary.com website.).  FN7. A crook is “a dishonest person, esp a swindler or thief.”  (Collins English Dictionary-Complete & Unabridged (10th Ed.2009) retrieved Feb. 2, 2011, from dictionary.com website.)

FN8. Plaintiff argues the trial court erred by excluding the letter.   The trial court sustained Chronicle defendants' objections to the letter;  those objections were based on the grounds that the letter lacked authentication and on that basis was irrelevant.   A declaration from the document's author explaining and verifying the document is sufficient to authenticate it.  (Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1409.)   Here, plaintiff's counsel, the letter's author, submitted a declaration that attached a “true and correct copy of my letter.”   Also, the letter provides that it was sent “VIA FIRST CLASS U.S. MAIL,” and plaintiff's counsel declared under penalty of perjury that it was “sent to Defendants.”   There is a presumption that the letter is received where there is evidence that it has been mailed.  (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)   The trial court, therefore, erred by sustaining Chronicle defendants' objections to the letter.   The error was not prejudicial, however.  (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.).  FN8. Plaintiff argues the trial court erred by excluding the letter.   The trial court sustained Chronicle defendants' objections to the letter;  those objections were based on the grounds that the letter lacked authentication and on that basis was irrelevant.   A declaration from the document's author explaining and verifying the document is sufficient to authenticate it.  (Landale-Cameron Court, Inc. v. Ahonen (2007) 155 Cal.App.4th 1401, 1409.)   Here, plaintiff's counsel, the letter's author, submitted a declaration that attached a “true and correct copy of my letter.”   Also, the letter provides that it was sent “VIA FIRST CLASS U.S. MAIL,” and plaintiff's counsel declared under penalty of perjury that it was “sent to Defendants.”   There is a presumption that the letter is received where there is evidence that it has been mailed.  (Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416, 421.)   The trial court, therefore, erred by sustaining Chronicle defendants' objections to the letter.   The error was not prejudicial, however.  (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.)

FN9. Section 425.16, subdivision (c)(1) states in full, “[I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.   If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”.  FN9. Section 425.16, subdivision (c)(1) states in full, “[I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.   If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”

TURNER, P. J. ARMSTRONG, J.