Filed: Mar. 09, 2020
Latest Update: Mar. 09, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CODY LUNDIN, No. 18-17300 Plaintiff-Appellant, D.C. No. 2:16-cv-01568-ROS v. DISCOVERY COMMUNICATIONS, INC., MEMORANDUM* et al., Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding Submitted March 4, 2020** Phoenix, Arizona Before: CLIFTON, OWENS, and BENNETT, Circuit Jud
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CODY LUNDIN, No. 18-17300 Plaintiff-Appellant, D.C. No. 2:16-cv-01568-ROS v. DISCOVERY COMMUNICATIONS, INC., MEMORANDUM* et al., Defendants-Appellees. Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, Senior District Judge, Presiding Submitted March 4, 2020** Phoenix, Arizona Before: CLIFTON, OWENS, and BENNETT, Circuit Judg..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CODY LUNDIN, No. 18-17300
Plaintiff-Appellant, D.C. No.
2:16-cv-01568-ROS
v.
DISCOVERY COMMUNICATIONS, INC., MEMORANDUM*
et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted March 4, 2020**
Phoenix, Arizona
Before: CLIFTON, OWENS, and BENNETT, Circuit Judges.
Cody Lundin appeals from the district court’s grant of summary judgment
on his claims for defamation and false light under Arizona law. As the parties are
familiar with the facts, we do not recount them here. We review a grant of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
summary judgment de novo. See Folkens v. Wyland Worldwide, LLC,
882 F.3d
768, 773 (9th Cir. 2018). We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
The district court correctly determined that there were no genuine issues of
material fact on Lundin’s state law defamation and false light claims. Substantial
truth is a complete defense to defamation, and a statement is substantially true “as
long as the gist or sting of the publication is justified.” Read v. Phoenix
Newspapers, Inc.,
819 P.2d 939, 941 (Ariz. 1991) (internal quotation marks and
citations omitted). Similarly, for false light claims, a plaintiff must show there has
been “a major misrepresentation of [the plaintiff’s] character, history, activities or
beliefs, not merely minor or unimportant inaccuracies.” Godbehere v. Phoenix
Newspapers, Inc.,
783 P.2d 781, 787 (Ariz. 1989) (internal quotation marks and
citation omitted).
The district court properly concluded that the episode of Dual Survival
depicting Lundin’s departure from the show (the Episode) was both substantially
true and did not materially misrepresent Lundin. While footage was edited for the
Episode, the “sting” of the Episode would be unchanged even if it contained a
more accurate or complete account of the events that transpired. See
Read, 819
P.2d at 942 (“We conclude that the ‘sting’ of the two versions is not substantially
different and therefore, had the published statements contained an accurate account
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of the conviction and sentence, there would not have been any less damage to
Read’s reputation.”). For the same reason, the Episode did not substantially
misrepresent Lundin’s character or beliefs. See
Godbehere, 783 P.2d at 787.
Lundin argues Defendants were motivated by an improper purpose, but whether a
defendant has an improper motive is irrelevant to whether a statement is
substantially true. See, e.g., Garrison v. Louisiana,
379 U.S. 64, 77–78 (1964)
(recognizing that because of First Amendment protections, truth is an absolute
defense to defamation even if statements were made with actual malice).
Lundin contends this is “a defamation-by-implication case.” See Dodds v.
Am. Broad. Co.,
145 F.3d 1053, 1063–64 (9th Cir. 1998) (describing the elements
for defamation by implication). But Lundin has not shown how the Episode was
“reasonably capable” of suggesting that he was “mentally ill” or “professionally
incompetent.” See
id. at 1063.
Lundin further argues the district court did not analyze the Episode from the
perspective of the average viewer because the court had no “knowledge of the
show or context” and decided the case “based on its own personal view.” See
Currier v. W. Newspapers, Inc.,
855 P.2d 1351, 1354 (Ariz. 1993) (“A technically
false statement may nonetheless be considered substantially true if, viewed
‘through the eyes of the average reader,’ it differs from the truth ‘only in
insignificant details.’” (citation omitted)). This argument is meritless; the district
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court recognized its obligation to view the Episode from the perspective of an
average viewer and only considered the evidence the parties had provided the
court, which did not include any other Dual Survival episodes.
AFFIRMED.
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