NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

JACKSON, J.

INTRODUCTION

In this defamation action, defendants, The McGraw-Hill Companies, Inc. (McGraw-Hill) and Mara Der Hovanesian (Der Hovanesian), appeal from the order denying their anti-SLAPP motion (Code Civ. Proc., § 425.16)1 to strike the complaint of plaintiff Steve Danziger (Danziger). We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The genesis of this defamation action is a news article published by McGraw-Hill in the November 24, 2008 issue of Business Week magazine. The article in question, entitled "Who Crossed the Line on the Street? The hunt for lawbreakers tied to toxic mortgages is underway," was written by reporter Der Hovanesian, an employee of McGraw-Hill and the associate banking and finance editor for Business Week. The article also was posted on Business Week's website on November 20, 2008.

In her article, Der Hovanesian reported that federal and state investigators2 were "sifting through Wall Street's debris looking for evidence of wrongdoing." The investigators were aware "that big banks created toxic mortgages and securities that brought the global financial system to its knees" and were trying to determine whether firms also violated the law. Der Hovanesian also reported that those conducting the investigations were "especially focused on so-called exception loans, mortgages that didn't meet the income and other financial guidelines set by Wall Street" with the intent of determining whether "banks knowingly pushed bad loans through the system."

The article continued: "As part of their hunt, investigators are looking for hard evidence of activities of the sort that former Countrywide wholesaler John Sipes claims occurred routinely. He says underwriters at the Santa Monica (Calif.) and Beverly Hills branches of Countrywide often shredded tax documents they received from borrowers to destroy proof of the borrowers' incomes and extend bigger loans than they could afford. [¶] The practice was so rampant in those two branches that the corporate offices launched an internal probe. Each night, Sipes says, Countrywide investigators collected the bins from paper shredders and analyzed their contents. After a while, he says, the branch managers told them: `Don't put anything in the shredder bins at work. If you're going to shred, take it home.'"

Plaintiff Danziger is the branch manager of Countrywide's Santa Monica office alluded to in Der Hovensian's article. Numerous individuals brought the article to Danziger's attention following its publication. This lawsuit followed.

Danziger filed this action against defendants in April 2009, alleging causes of action for defamation per se, libel per se and libel per quod. McGraw Hill alone thereafter filed a special motion to strike pursuant to Code of Civil Procedure section 425.16 (section 425.16).3 McGraw-Hill maintained that the anti-SLAPP statute applied to Danziger's defamation claims because Business Week published the article in public forums and the article involved a matter of public interest. McGraw-Hill further argued that Danziger was unable to meet his burden of proving by competent evidence a probability of prevailing on his claims. On September 24, 2009, the trial court held a hearing on and denied McGraw-Hill's anti-SLAPP motion.

After the trial court ruled on McGraw-Hill's anti-SLAPP motion, Danziger served Der Hovanesian with the complaint. Defendants thereafter filed an ex parte application for an order allowing Der Hovanesian to join in McGraw-Hill's anti-SLAPP motion and to be added to the order. The trial court granted defendants' application4 and subsequently signed an order denying McGraw-Hill's anti-SLAPP motion and joining Der Hovanesian in that motion and order thereon. Specifically, the court ruled that defendants established that the challenged article is protected speech and involved an issue of public interest under section 425.16, subdivision (e)(3) and (4). In addition, "without weighing the credibility of the evidence presented by Plaintiff Danziger and accepting as true all evidence favorable to the Plaintiff and assessing Defendants' evidence only to determine if it defeats Plaintiff's submission as a matter of law," the court found that Danziger "established a probability of prevailing on his claims." The court further found that Danziger "produced sufficient evidence to demonstrate that he is a private figure[,] . . . [and] to demonstrate that the statement he sues upon, `After a while, he (Sipes) says, the branch managers told them: "Don't put anything in the shredder bins at work. If you're going to shred, take it home[,]"' is false, is defamatory, not privileged, and was made with the requisite level of fault, given that Mr. Sipes, to whom it is attributed in the news story, denies making this statement."

This appeal followed.

DISCUSSION

Standard of Review

When ruling on an anti-SLAPP motion, the trial court engages in a two-step process. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) First, it determines whether the defendant "has made a threshold showing that the challenged cause of action is one `arising from' protected activity." (City of Cotati, supra, at p. 76; Drum v. Bleau, Fox & Associates (2003) 107 Cal.App.4th 1009, 1018, disapproved on another ground in Rusheen v. Cohen, supra, 37 Cal.4th at p. 1065.) If so, then it must determine whether the plaintiff has shown a probability of prevailing on his claim. (City of Cotati, supra, at p. 76; Drum, supra, at p. 1018.)

On appeal, we review the trial court's determination de novo. (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.) The questions are whether the defendant has satisfied his burden of establishing that section 425.16 applies (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999) and "whether the plaintiff [has] satisfied his burden of making a prima facie showing of facts that, if proven at trial, would support a judgment in his favor." (Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 184.)

Defendants Established the Applicability of the Anti-SLAPP Statute

Plaintiffs causes of action for defamation per se, libel per se and libel per quod are premised on specific statements made by Der Hovanesian in the article published. As previously detailed, the article reported that the branch manager of the Santa Monica Countrywide office directed his staff to destroy tax documents reflecting borrowers' true income so that larger loans could be extended and to take the documents home to shred. Plaintiff alleged that these statements were untrue and defamatory and portrayed him as a "dishonest, untrustworthy, unethical, immoral and unprofessional" person who "committed illegal acts."

In determining whether defendants met their burden of demonstrating that plaintiff's causes of action arise from defendants' act or acts in furtherance of their petition for free speech under the state or federal constitutions, we are guided by subdivision (e) of section 425.16, which provides: "As used in this section, `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."

There is no question that the anti-SLAPP statute, specifically subdivision (e)(3) and (4) of section 425.16, applies to this case, as the trial court found. Der Hovanesian's article was a writing published by McGraw-Hill in a public forum—i.e., a magazine and the Internet—in connection with the national mortgage crisis, which indisputably is an issue of public interest. (Code Civ. Proc., § 425.16, subd. (e)(3); Taus v. Loftus (2007) 40 Cal.4th 683, 712-713; Nygård, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1038.) In addition, plaintiff's causes of action arise from defendants' conduct in furtherance of their constitutional right of free speech in connection with an issue of public interest. (§ 425.16, subd. (e)(4); Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240.)

Defendants contend that the article also constitutes a "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," within the meaning of section 425.16, subdivision (e)(2). While the anti-SLAPP statute applies to reports in the press regarding litigation and governmental investigations (see, e.g., Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 862-863; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043), the article did more than report on the national mortgage crisis and the litigation and investigations prompted by the debacle. It purportedly defamed an individual who defendants have not established was being investigated by the government or named in any litigation. It is only these purportedly defamatory statements, which single Danziger out and suggest that he engaged in illegal conduct, that he challenges. In the absence of any evidence that Danziger in particular, rather than Countrywide in general, was being investigated by any governmental entity or the subject of any litigation, defendants' reliance on section 425.16, subdivision (e)(2), is misplaced.

Plaintiff Established a Probability of Prevailing on his Defamation Claims

Having determined that plaintiff's defamation claims are subject to the anti-SLAPP statute, the next question for resolution is whether plaintiff demonstrated a probability of prevailing on his claims. "To meet [his] burden to show a probability of prevailing, plaintiff [was] required to present evidence to demonstrate that [his] defamation claim was `"`supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted . . . was credited.'"' [Citations.] In deciding the potential merit issue, the trial court considers the parties' pleadings and admissible evidentiary submissions. [Citation.] The court does not weigh the credibility or compare the strength of competing evidence, but merely determines if there is sufficient evidence to show plaintiff[] can satisfy each element of [his] claim. [Citation.]" (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1336.)

Relying on Civil Code section 47 (section 47), subdivision (d), defendants maintain that the challenged statements are privileged. Section 47 provides "[a] privileged publication or broadcast is one made: [¶] . . . [¶] (d)(1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued." This statutory provision, which is broadly construed, "confers an absolute privilege." (Sipple v. Foundation for Nat. Progress, supra, 71 Cal.App.4th at p. 240.)

As noted in Sipple v. Foundation for Nat. Progress, supra, 71 Cal.App.4th 226, "`[i]t is well settled that a defendant is not required in an action of libel to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified, and if the gist of the charge be established by the evidence the defendant has made his case.' [Citation.] `"[A] slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently . . . ."' [Citation.]" (Id. at p. 244.)

Defendants contend that the "sting or gist" doctrine bars Danziger's defamation claims. Defendants' arguments are based on the erroneous premise that the alleged defamatory statements contained within the article, namely that Danziger instructed workers to shred documents at home, was not materially worse than the sting of the article itself. The trial court disagreed and so do we.

The gist of the article was the national mortgage crisis and the ongoing investigations of events giving rise to or contributing to the crisis. The challenged statements were directed at Danziger in particular and made him look like a crook. More specifically, it painted him as a person who knowingly and intentionally engaged in misconduct and potentially illegal conduct. The sting or gist of these statements are not the same as, and in fact are markedly worse than, news that Countrywide contributed to the national mortgage crisis as a result of its toxic mortgages. As such, defendants failed to establish the challenged statements were privileged.

Also without merit is defendants' assertion that Danziger failed to establish that the challenged statements are defamatory. "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 injury or causes special damage." (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) Libel is defamation in written form. (Ibid.)

Plaintiff presented the declaration of Sipes, who flat out denied telling Der Hovanesian that the managers of Countrywide's Santa Monica and Beverly Hills branches directed their employees to shred documents at home or that the branch managers told underwriters to shred borrowers' tax documents in order to grant larger loans than the borrowers could afford. To the contrary, Sipes stated that he told Der Hovanesian "that the underwriters worked independently from the branch managers, . . . they have their own management who monitor their activities . . . [and] that the branch managers had no contact with the underwriters regarding any of their practices, and would have no part in the process of underwriting a loan."

Sipes did acknowledge that he told Der Hovanesian that on one occasion Countrywide staff questioned him about his father's credit report, which staff recovered from a shredder bin. Sipes voiced his discomfort with the staff's questions about his father's personal information. Sipes noted, however, that Der Hovanesian "completely mischaracterized my statement, and fabricated her own version of a story pertaining to the shredders; and that story is what she put in the article."

Sipes also denied that his managers told him to take sensitive materials home to shred. In fact, Sipes told Der Hovanesian "that while employed at Countrywide, we were specifically instructed to lock our desks at night, and were not allowed to take home any sensitive information or files."

After reading the article which contained "numerous misquotes and outright falsehoods," Sipes demanded a retraction from Der Hovanesian. Although Der Hovanesian confirmed that she would print a retraction, one was never printed. After waiting one month for the retraction to be printed, a man identifying himself as the editor-in-chief, contacted Sipes and told him that the magazine was not going to print a retraction and instead was "going to back up Miss Hovanesian." The editor-in-chief told Sipes that since his conversation with Der Hovanesian was not recorded, it would be her word against his, and there was nothing more Sipes could do to resolve the matter.

While defendants unquestionably presented ample evidence contradicting Sipes' representations, the trial court correctly noted that its job was not to weigh the credibility of witnesses or to resolve factual issues. Nor is it the function of this court. (Balzaga v. Fox News Network, LLC, supra, 173 Cal.App.4th at p. 1336.) There is no question that plaintiff produced evidence, which if credited, would support a judgment in his behalf.

Next, defendants assert that Danziger is a public figure or limited public figure who was required to plead and prove with convincing clarity constitutional malice and actual damages proximately resulting from the article in order to prevail. This assertion lacks merit.

"A person is not a public figure merely because he happens to be involved in a controversy that is newsworthy. [Citation.] `[A] "public figure" plaintiff must have undertaken some voluntary act through which he seeks to influence the resolution of the public issues involved. As such, the mere involvement of a person in a matter which the media deems to be of interest to the public does not, in and of itself, require that such a person become a public figure for the purpose of a subsequent libel action. [¶] . . . [W]hen called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported "public figures" have thrust themselves into the forefront of particular public controversies.' [Citations.]" (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 744-745.) In order to elevate a person to public figure status, a fairly high level of public activity is required. (Id. at p. 745.) Most significantly, "`those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.'" (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 266.)

Activities such as advertising one's business or doing business with parties to a public controversy does not elevate one to public figure status, or give one power of persuasion on public issues, controversial or not. (Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 660; Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, 767-768.) There is nothing in the record to suggest that Danziger thrust himself into the forefront of the mortgage crisis, did anything to draw any special attention to himself, or made any effort to influence the mortgage industry at large or the public's perception of the mortgage industry. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 352-353.) For these reasons, we conclude, insofar as defendants' anti-SLAPP motion is concerned, Danziger was not required to prove actual malice in order to defeat the motion.5

We conclude the trial court properly denied defendants' anti-SLAPP motion.

DISPOSITION

The order is affirmed. Plaintiff is awarded his costs on appeal.

We concur:

PERLUSS, P. J.

WOODS, J.