McDONALD, Acting P. J.
Plaintiff Melanie Welch successfully obtained a reversal of an unfavorable judgment in Welch v. State Teachers' Retirement System (2012) 203 Cal.App.4th 1 (Welch III), an opinion published by an appellate court. Defendant Shaun Martin, a professor of law employed by defendant University of San Diego who authors an internet blog devoted to reporting and commenting on recent published opinions, published an article about Welch III. In the article, he stated Welch III seemed "facially" correct, and perhaps "correct as a legal matter," but mused "maybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view." Welch demanded a retraction of the article and, when Martin refused, filed the present action against Martin and others alleging defamation.
Defendants moved to dismiss Welch's complaint pursuant to Code of Civil Procedure
Martin authors an internet blog in which he provides summaries of and commentary on recently published appellate court opinions. He tries to post his commentaries the same day the opinion is published and therefore generally relies solely on the content of the published opinion.
On the morning of January 31, 2012, an appellate court issued Welch III, supra, 203 Cal.App.4th 1, which Martin read and decided to publish commentary on because of its unique factual history and legal issues, specifically the issue of estoppel that undergirded Welch III. He published his blog article that same morning, containing a link to Welch III, and reported details of the complex legal history that provided the background for, and holding in, Welch III. That background, drawn from Welch III, follows.
Welch began teaching in the Oakland Unified School District (District) in September 1998. Less than two months later, she was physically attacked by a group of students while working at a middle school in Oakland. (Welch III, supra, 203 Cal.App.4th at pp. 5-6.) According to the police report, Welch took a hat from two students who were arguing over it on a stairway landing; she was then attacked and injured. The next day, when the school principal asked her to return to work, she was still shaken and upset, and filed a complaint about school safety on October 30, 1998. Although she was subsequently physically cleared to return to work, Welch did not do so and, on November 2, the District notified her it was placing her on administrative leave with pay while it investigated allegations of her erratic behavior, including hitting and kicking children at the middle school. (Id. at p. 6.)
In February 1999, the District informed Welch it had decided to release her from her employment contract and would pay her through February 26. Welch filed a petition for writ of mandate to challenge her employment termination. The trial court entered judgment in Welch's favor in the proceeding challenging the termination of her employment, and ordered the District to reinstate her as a probationary employee along with back pay and benefits, because the District's termination was without adequate notice and without an opportunity to appeal. The District appealed but the ruling was affirmed. (Id. at p. 7.)
The District terminated Welch's probationary employment effective June 30, 2001, using proper procedures. Although Welch brought contempt proceedings, asserting the District was in contempt for not reinstating her, the trial court concluded the District was only required to issue back pay and not to reinstate her, and therefore denied Welch's application; the appellate court subsequently affirmed. (Welch v. Oakland Unified School Dist. (Cal.App. 1 Dist., Jul. 28, 2005) 2005 WL 1785339.)
Welch's action that resulted in Welch III about which Martin blogged and over which the current defamation suit emanated, stemmed from her efforts in 2005 to obtain disability retirement benefits from the California State Teachers' Retirement System (CalSTRS) based on her claim the October 1998 attack left her totally disabled and unable to return to work since that date. (Welch III, supra, 203 Cal.App.4th at pp. 8-10.) This saga began when Welch phoned CalSTRS about potential benefits available to her, but during that phone call the CalSTRS representative allegedly misinformed Welch of the eligibility requirements for disability retirement by telling her there were no exceptions to the requirement that the member must have five years of credited service to apply for disability retirement benefits, when in fact there was an exception that might have applied to Welch. Welch could have been eligible with less than five years of credited service if she was disabled as the direct result of a bodily injury suffered from an attack while she was working, and she could prove the attack and the resulting disability. However, because of the misinformation, Welch did not apply for disability at that time. (Id. at pp. 6-7.)
In 2005, Welch learned for the first time of the "physical attack" exception and applied for benefits. (Welch III, supra, 203 Cal.App.4th at pp. 4, 8.) CalSTRS rejected Welch's application for disability retirement benefits on the ground the medical documentation she provided did not substantiate that she had been disabled since her last day of work in 1998. (Id. at p. 8.) At an administrative hearing on Welch's challenge to CalSTRS's denial of her application, the ALJ issued a proposed decision in which he concluded (based on Welch's lack of credibility and the absence of any corroborating evidence) she had not been misinformed by CalSTRS in 1999, and also concluded there was no evidence she had been continuously incapacitated from her last day of actual performance. (Id. at p. 9.) However, in an administrative mandamus proceeding in the superior court, the trial court found (contrary to the ALJ's finding) Welch was misinformed by the CalSTRS representative in 1999 about the eligibility requirements, but nevertheless concluded she did not qualify for benefits because the weight of the evidence did not establish she was disabled since the 1998 attack. (Id. at pp. 9-10.)
Welch III reversed the trial court's determination, and remanded for new proceedings because, although the record contained evidence to support a finding she was not disabled since 1998, the record also supported a conclusion that if CalSTRS had not provided the misinformation to Welch in 1999 there was a reasonable likelihood she would have been able to obtain and present CalSTRS with medical documentation to support her claim of disability. Welch III concluded that, because the lack of evidence was attributable to CalSTRS's own error, Welch was entitled to remand because "CalSTRS should not be allowed to take advantage of its own errors." (Welch III, supra, 203 Cal.App.4th at pp. 5, 26-27.)
A few hours after Welch III was published online, Martin published on his blog an article about it. In the article, he briefly summarized the facts and holding of Welch III, which he stated to be that "[District] misled her, so [District] probably [has] to give her benefits," and then observed this "facially . . . seems right," and its use of estoppel against the District "might even be correct as a legal matter," but then stated "let's read between the lines a little bit to figure out what's really going on here." Martin then highlighted many of the facts apparently adverse to Welch's substantive claims, and concluded by noting that even though the ALJ found her "not credible" and the trial court found she should be denied benefits because she could not show she was disabled in 1999, "the Court of Appeal reverses [and held] that this all might well be [CalSTRS's] fault and strongly hinting that Welch should get benefits. [¶] . . . [¶] . . . [M]aybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view."
Welch wrote Martin to complain about misstatements contained in the blog article, which she deemed to be defamatory, and wanted to show Martin the proof of the falsity of Martin's statements. Martin responded that he believed all of the factual statements contained in his blog article were derived from Welch III, but invited her to let him know if there was any particular factual statement in the blog article that she believed was not a fact contained in Welch III, but she did not do so.
Welch's action appears to have alleged six defamatory statements were contained in the article:
Defendants moved to strike the complaint under the anti-SLAPP statute. They argued her claims clearly arose from protected conduct, and Welch could not demonstrate likely success on the merits because (1) the statements were absolutely privileged under the fair report privilege embodied in Civil Code section 47, subdivision (d), and (2) the statements about which she complained were nonactionable statements of opinion and/or were not demonstrably false.
Welch opposed the motion, apparently contending she could demonstrate probable success on the merits because (1) the fair reporting privilege did not apply because the article was a "deliberate distortion[]" of Welch III written with actual malice, and (2) the statements about which she complained were actionable statements of fact that were demonstrably false. She does not contest that her claims arose from Defendants' protected activity.
The trial court found the complaint arose out of protected activity, and found Welch had not shown probable success on the merits because the statements, considered in context and as a whole, were protected under the "fair reporting" privilege and/or were nonactionable statements of opinion, and therefore granted the motion to strike the complaint under the anti-SLAPP statute. This appeal followed.
The anti-SLAPP law provides, in relevant part, 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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Id., subd. (a).)
The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If the defendant does not demonstrate this initial "arising from" prong, the court should deny the anti-SLAPP motion and need not address the second step. (City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582, 1594; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811.)
If the defendant satisfies the first step, the burden shifts to the plaintiff to demonstrate there is a reasonably probability he or she will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that his or her claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In making this assessment, the court does not weigh the evidence, but does consider both the legal sufficiency of and evidentiary support for the pleaded claims. (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.)
On appeal, we review de novo the trial court's ruling on the motion to strike. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.)
To establish her defamation claim, Welch must prove the publication contained a statement of fact (which can support a defamation action) rather than an expression of opinion (which cannot) that was false, defamatory, unprivileged, and had a tendency to injure or cause special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Although mere opinions are generally not actionable (ibid.), a statement of opinion that implies a false assertion of fact can be actionable. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 18-19 (Milkovich).) However, "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.) Thus, the inquiry is not merely whether the statements are fact or opinion, but "`whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.'" (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) The courts apply a "totality of the circumstances" test to determine both whether (a) a statement is fact or opinion, and (b) a statement declares or implies a provably false factual assertion; that is, courts look to the words of the statement itself and the context in which the statement was made. (Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385-386 (Franklin).) "Under the totality of the circumstances test, `[ f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. . . . [¶] Next, the context in which the statement was made must be considered.'" (Id. at p. 385.) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261 (Overhill).)
Even where the publication contains a statement of fact that is false and defamatory, an anti-SLAPP motion should nevertheless be granted where the plaintiff cannot establish a probability of prevailing on a defamation claim because the publication was absolutely privileged.
We conclude the trial court correctly found Welch had not shown the minimal merit necessary to avoid having her complaint stricken under the anti-SLAPP statute because the alleged defamatory statements were either protected by the fair and true report privilege and/or were nonactionable statements of opinion rather than statements of facts.
We first consider the alleged defamatory statements that we conclude, as a matter of law, are protected by the privilege conferred on fair and true reports of judicial proceedings.
Thus, the gist of the statement that she claimed to be defamatory—that she perjured herself because her claim about the 1999 call was supported only by her testimony—is drawn directly from Welch III. Although Welch asserts it was unprivileged because it ignored that Welch III also noted she presented evidence of similar calls in 2005 in which she received the same misinformation "she claimed to have received in 1999" (Welch III, supra, 203 Cal.App.4th at p. 9, italics added), the publication "`need not track verbatim the underlying proceeding'" to qualify for the privilege. (Carver v. Bonds, supra, 135 Cal.App.4th at p. 351.) Because Martin's statement—that there was "no evidence other than Welch's testimony" she was misinformed in 1999—is drawn directly from Welch III, the full and fair report privilege applies to this alleged implied defamatory statement.
The next defamatory statement that Welch apparently claimed to be actionable was Martin's statement that "Welch may be totally disabled and unable to work . . . [b]ut that doesn't stop her from prosecuting her case in pro per . . . [w]hich she does successfully," which her defamation complaint appears to assert was an implied accusation that she committed disability fraud. However, Welch III states Welch was found disabled (Welch III, supra, 203 Cal.App.4th at p. 9 ["Welch was found eligible for SSI benefits on the basis that she was unable to perform any substantial gainful activity"]), and states she acted in propria persona (id. at p. 3) and that she was successful (id. at pp. 28-29). The full and fair reporting privilege applies to this statement.
A statement of opinion is generally not actionable (Taus v. Loftus, supra, 40 Cal.4th at p. 720) and a defamation action based on mere statements of opinion is properly stricken under the anti-SLAPP statute. (Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1049-1054.) However, a statement of opinion that implies a false assertion of fact can be actionable. (Milkovich, supra, 497 U.S. at pp. 18-19.) Whether challenged statements convey the requisite factual imputation is ordinarily a question of law for the court (Overhill, supra, 190 Cal.App.4th at p. 1261), and we conclude the remaining alleged defamatory statements involved statements that, at most, involved nonactionable opinions.
Welch's complaint first alleged, as a defamatory statement, the article's statement "let's read between the lines a little bit to figure out what's really going on here." This statement contains no factual imputation at all. At most, this is prefatory language in which Martin invited readers of case law commentaries to join him as he undertook a closer examination of the factual and procedural setting forming the landscape within which Welch III was decided. Welch makes no effort on appeal to explain what defamatory factual imputation was imbedded within that statement, and we conclude that statement, as measured by the natural and probable effect it would have on the mind of the average reader to whom the publication was directed (Franklin, supra, 116 Cal.App.4th at p. 389), would not have been understood to carry any factual imputation.
Welch's next specification of defamation was Martin's statement, made after he noted Welch III had recited the school district placed Welch on administrative leave while it investigated allegations of her erratic behavior (including hitting and kicking children at the middle school), that it was Martin's "strong sense is that these are not new allegations, and that stuff has been going on a while. Perhaps consistent with her taking the hat of a kid that led to her being attacked." Welch contends this falsely accused her of criminally assaulting children. When applying the "totality of the circumstances" test to determine both whether a statement is fact or opinion and whether it declares or implies a provably false factual assertion, a court must "look to the words of the statement itself and the context in which the statement was made" (Franklin, supra, 116 Cal.App.4th at pp. 385-386), starting first with an examination of the language of the statement. (Overhill, supra, 190 Cal.App.4th at p. 1261.) The allegedly defamatory statement was prefaced by Martin's statement that it was his "sense" the allegations were not new and had been chronic, and the courts have repeatedly found that statements prefaced by such words as "my impression" (see Hawran v. Hixson (2012) 209 Cal.App.4th 256, 291) clearly "identified them as statements of opinion and not fact." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1013 [affirming order granting anti-SLAPP motion: plaintiff could not show probable success on merits because disparaging statements found to be opinion where words "were replete with explicit statements of opinion, such as "`IMO [in my opinion],' . . . ` I firmly believe,' . . . and `my guess is'"].)
Moreover, when the "strong sense" qualifier is viewed within "the context in which the statement was made" (Franklin, supra, 116 Cal.App.4th at pp. 385-386), the conclusion Martin was stating an opinion he derived from a set of disclosed facts (rather than implying a knowledge of provably false and defamatory facts on which his "strong sense" was based) becomes inexorable. The article, posted within hours of publication of Welch III, contained a link to Welch III from which the reader could peruse all of the facts available to Martin, and cited the specific facts on which Martin's "strong sense" was drawn. As explained in Franklin, the courts will distinguish "opinion statements based upon expressly stated facts with opinion statements based on implied, undisclosed facts." (Franklin, at p. 386.) Franklin noted the examples used by the court in Standing Committee on Discipline of U.S. Dist. Court for Cent. Dist. of Calif. v. Yagman (9th Cir. 1995) 55 F.3d 1430, where the court (applying Milkovich, supra, 497 U.S. 1, see Yagman, at p. 1438) explained that, "The statement, `I think Jones is an alcoholic,' for example, is an expression of opinion based on implied facts, [citation], because the statement `gives rise to the inference that there are undisclosed facts that justify the forming of the opinion,' [citation]. Readers of this statement will reasonably understand the author to be implying he knows facts supporting his view— e.g., that Jones stops at a bar every night after work and has three martinis. If the speaker has no such factual basis for his assertion, the statement is actionable, even though phrased in terms of the author's personal belief. [¶] A statement of opinion based on expressly stated facts, on the other hand, might take the following form: `[Jones] moved in six months ago. He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair . . . with a drink in his hand. I think he must be an alcoholic.' [Citation.] This expression of opinion appears to disclose all the facts on which it is based, and does not imply that there are other, unstated facts supporting the belief that Jones is an alcoholic. [¶] A statement of opinion based on fully disclosed facts can be punished only if the stated facts are themselves false and demeaning." (Yagman, at p. 1439, fn. omitted.)
Franklin, applying Yagman's approach, explained:
We conclude, based on the words used and the disclosed context within which those words were used, the readers to whom the publication was directed understood Martin was expressing an opinion based on expressly stated facts and was not implying his opinion was premised on undisclosed false facts.
Welch's next specification of defamation was Martin's statement commenting on Welch III's report that Welch claimed the school had placed her on administrative leave because of her complaint about safety in the school and specifically claimed she was told by the principal that "if she filed a complaint `he had 20 kids who would say that [she] had hit and kicked them.'" (Welch III, supra, 203 Cal.App.4th at p. 6, fn. 3.) Welch asserted Martin's statement—that "maybe the principal was stupid enough to make such a threat. . . . Or maybe Welch is just making things up. Let's try to remember that when we're assessing equity and credibility"—falsely accused her of perjury. We again apply the totality of the circumstances test to determine both whether the statement was fact or opinion and whether it declared or implied provably false factual assertions, and start with the words of the statement itself. The statement clearly states there are two possibilities—that the principal was "stupid enough" to make such a threat or that Welch "is just making things up"—and impliedly opines on which view Martin adopts. However, as previously explained, the courts have recognized statements are likely to be understood by the reader as opinion when, as here, the statement is "phrased in terms of apparency, cautiously or otherwise" (Hawran v. Hixson, supra, 209 Cal.App.4th at p. 291), and because Martin disclosed the context within which those words were used, we conclude readers to whom the publication was directed understood Martin was expressing an opinion based on expressly stated facts drawn from Welch III rather than implying his opinion was premised on undisclosed false facts.
Welch's final claimed defamatory statement was that Martin, summarizing Welch III's holding that "[CalSTRS] misled her, so [CalSTRS] probably [has] to give her benefits," concluded by saying "maybe all of this is complete justice. But maybe not. Depends profoundly upon your point of view." Welch makes no effort on appeal to explain what defamatory factual imputation was imbedded within that statement, and her complaint below likewise did not explain what false fact was conveyed by this statement. We conclude that statement, which told the reader the result reached by the appellate court in Welch III might or might not be "complete justice . . . depend[ing] profoundly upon your point of view," was at most an implicit expression of Martin's opinion (his "point of view") along with an invitation to readers to form their own opinion. We conclude the natural and probable effect that the statement would have on the mind of the average reader to whom the publication was directed (Franklin, supra, 116 Cal.App.4th at p. 389) was that the reader would have understood it expressed Martin's opinion but did not carry any factual imputation.
Defendants argue they are entitled to an award of attorney fees on appeal. Addressing and agreeing with the same argument raised by Defendants here, the court in Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500 stated: "The defendants correctly contend that if they prevail on this appeal they are entitled to recover their appellate attorney fees. A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise. [Citations.] Under section 425.16, subdivision (c), a prevailing defendant on a special motion to strike a SLAPP suit `shall be entitled to recover his or her attorney's fees and costs.' The statute does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent; hence they are recoverable." (Accord, Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275-276 [granting costs, including attorney fees, on appeal and remanding matter to trial court for determination of proper amount of fees].)
The judgment of dismissal is affirmed. Respondents shall recover their costs and attorney fees on appeal, the amount of which shall be determined by the trial court on remand.
O'ROURKE, J. and IRION, J., concurs.
