APPEAL from a judgment of the Superior Court of Yolo County, David W. Reed, Judge. (Super. Ct. No. CV 09-449)
The opinion of the court was delivered by: Nicholson , J.
CERTIFIED FOR PUBLICATION
Reversed with directions.
CBS Broadcasting, Inc. (CBS) telecast a report regarding Carolyn Young, a court appointed conservator. In its report, CBS dramatized allegations against Young of theft and battery while she served as conservator for an elderly woman. Young sued CBS for defamation. CBS filed an anti-SLAPP motion, asserting the First Amendment. Young prevailed in part. CBS appeals. We reverse because Young acted as a public official for purposes of defamation law and failed to show CBS's report was made with actual malice.
Young has worked as a professional conservator and fiduciary for more than 20 years. In November 2006, and at the request of Sacramento County Adult Protective Services (APS), Young petitioned the trial court to be appointed as conservator for 86-year-old Mary Jane Mann. APS was seeking the conservatorship to protect Mann from undue influence by one of her adult daughters, Carol Mann Kelly. It had evidence Mann suffered from memory impairment and that Kelly was attempting to take advantage of Mann financially. The court granted the petition and named Young as temporary conservator.
About one month later, Mann, Kelly, and another of Mann's daughter's, Monika Mann, reached agreement in a non-judicial mediation on how to protect Mann in the least restrictive manner. Their attorneys, and Young and her attorney, participated in the mediation. The parties agreed to seek the dismissal of the temporary conservatorship and to name Young as a cotrustee with Mann over Mann's trust. In February 2007, the trial court entered an order dismissing the petition for conservatorship and approving and ordering execution of the mediated agreement.
Dave Clegern was a producer at KOVR-TV Channel 13. In February 2008, about one year after the court terminated Mann's conservatorship, Clegern visited Young at her office and interviewed her about her role as Mann's conservator. From Young's perspective, the interview did not go well. Clegern accused her of creating the conservatorship without justification and without notifying Mann. He also raised accusations that Young had mismanaged trust funds.
Young denied all of Clegern's accusations. In trying to justify her actions, she inadvertently gave Clegern a copy of the confidential report APS had prepared to support creating the conservatorship, including copies of Mann's medical records. Young and her attorney later that day asked Clegern to return the report, but he never did.
On February 27, 2008, about one week after Clegern interviewed Young, KOVR aired a report during a news broadcast concerning Mann's conservatorship. The report was part of KOVR's " Call Kurtis " investigative reports series. Entitled "A Life Hijacked," the report was written and produced by Clegern and reported by Kurtis Ming. KOVR also posted the same report in written and video format to its Web site, where it remained for a number of days.
We have viewed the broadcast report "A Life Hijacked " and the transcripts of the report provided by the parties. In general, the report consists of interviews with Mann and Kelly, along with furtive shots of Young. During the interview, Mann accused the people managing her conservatorship, more than one time, of stealing from her and threatening her. She also claimed " they " pushed her way through Mann to get inside her home without her permission. One scene, enhanced with a loud clanging noise and music, shows Mann locking her front gate with a large chain to keep those people out. CBS identified Young as one of those people.
Ming reports that Young effectively took over Mann's life without Mann's knowledge. Young took control of Mann's bank accounts, investments, and her trust. Young had Mann's mail forwarded to her office and had Mann's driver's license lifted. At one point, Kelly says Mann called her concerned that somebody had taken $30,000 out of her account, and she did not know how that had happened.
Ming states Mann's trust was paying for "every legal maneuver aimed at taking away [Mann's] control of her life, and there seemed to be little she could do about it."
The report never shows an interview with Young. Instead, when the report shows her, it does so using calculating filming techniques and sound effects, such as showing her in slow motion as a passenger in a car, or filming her from behind as if spying on her and without her knowledge. These techniques served to substantiate Mann's accusations against Young.
Ming quotes from the confidential APS report. He states APS recommended Mann be conserved because of memory impairment and possible financial abuse by Kelly. The APS report relied on medical records, but Ming states one of the doctors quoted in the APS report determined that while Mann does have some memory loss, she shows no signs of " significant neurodegenerative disorder. " Ming reported that Mann had since undergone two more exams that found Mann to be quite competent. Mann had no memory disorder and was in fact competent.
Concluding his report, Ming stated that even though the conservatorship had ended a year previously, Mann had been pressured into signing the agreement that kept Young as a cotrustee on her estate. Ming also said Mann accused Young of taking $60,000 out of the trust without adequate accounting.*fn1
The following day, February 29, 2008, KOVR broadcast a follow-up report on the Mann conservatorship. This report focused more on conservatorships in general and did not mention Young by name.
Requests by Young's attorneys to KOVR to retract the report and remove it from its Web site went unanswered.
Ultimately, Young brought this action for defamation against KOVR, Clegern, Ming, CBS, and CBS 13. In an amended complaint, she alleged 26 statements in the broadcast report defamed her.
Defendants (collectively CBS) filed an anti-SLAPP motion against the entire complaint. CBS argued (1) the alleged defamatory statements were absolutely privileged under Civil Code section 47, subdivision (d)(1), as fair and true reports of an official proceeding; (2) the statements were non-actionable hyperbole or opinion; (3) Young was a public official or public figure required to establish actual malice to prove defamation, and she could not do so; (4) many of the statements were not "of and concerning" Young; and (5) Young's alleged failure to comply with Civil Code section 48a, a statute limiting an award of damages from a broadcast defamation to special damages unless certain demands for retraction were made, limited Young's recovery to special damages, damages which she had allegedly not pleaded or proven adequately. CBS also argued at the hearing that Young had failed to demonstrate the statements in the report were false.
The trial court granted the anti-SLAPP motion in part and denied it in part. It determined some of CBS's statements in the broadcast were privileged under Civil Code section 47, subdivision (d)(1), and some were non-actionable hyperbole or opinion. But it found 17 of the statements were not privileged or hyperbole, and that the action could proceed as to those statements.*fn2
The trial court rejected CBS's other arguments. It concluded Young was not a public official or public figure and thus not required to show actual malice. It found the statements were of and concerning Young, as she was a direct object of the report's criticism. It also determined Young had shown she could prove special damages, so the operation of Civil Code section 48a was irrelevant to resolving the motion.
CBS appeals and raises the same arguments it raised in the trial court.*fn3
Code of Civil Procedure section 425.16 (the anti-SLAPP law) allows a court to strike a complaint it determines is an attempt to stifle a defendant's exercise of free speech rights. A court may strike such a complaint where it concludes (1) the cause of action arises from the defendant's exercise of free speech regarding a public issue; and (2) there is no probability the plaintiff will prevail on the merits. (Code Civ. Proc., § 425.16, subd. (b)(1).)
Young does not contest that her complaint arises from CBS's exercise of free speech rights. We thus are left to determine the second prong of the anti-SLAPP motion: whether Young introduced sufficient evidence to establish a probability of success on the merits of her defamation claim. To recover for defamation, Young must establish that the news report was false, defamatory, and unprivileged, and that it had a natural tendency to injure or that it caused special damage. (Taus v. Loftus (2007) 40 Cal.4th 683, 720; Civ. Code, §§ 45, 46; 5 Witkin, Summary of Cal. Law, Torts (10th ed. 2005) § 529, p. 782.) In response to an anti-SLAPP motion, however, her burden of proof is admittedly low, requiring that she introduce substantial evidence of each element on which an ultimate verdict in her favor could be affirmed. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)
" Review of an order granting or denying a motion to strike under [Code of Civil Procedure] section 425.16 is de novo. [Citation.] We consider 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' ([Code Civ. Proc.,] § 425.16, subd. (b)(2).) However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
CBS argues Young failed to introduce sufficient evidence to establish any of the elements of her cause of action. We conclude Young failed to introduce sufficient evidence establishing the news report was unprivileged. The report was privileged because Young acted as a public official for purposes of defamation liability in her role as Mann's court-appointed conservator, and she was unable to establish with sufficient evidence that the report's allegations were made with actual malice. Because this determination conclusively defeats Young's action, we do not address CBS's other arguments.
Young as a Public Official
CBS claims Young is a public official or a limited public figure who, under New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706], must prove CBS published the defamatory statements about her with actual malice, or, in other words, with knowledge of the statements' falsity or in reckless disregard of their truth or falsity. CBS also asserts Young's evidence does not satisfy this burden.
Young contends she is neither a public official nor a limited public figure, and as a result was not required to establish actual malice. We conclude she is a public official for purposes of defamation liability while serving in her role as a court-appointed conservator.
" [T]he Supreme Court's vision of a ' public official ' is someone in the government's employ who "(1) has, or appears to the public to have, substantial responsibility for or control over the conduct of governmental affairs; (2) usually enjoys significantly greater access to the mass media and therefore a more realistic opportunity to contradict false statements than the private individual; (3) holds a position in government which has such apparent importance that the public has an independent interest in the person's qualifications and performance beyond the general public interest in the qualifications and performance of all government employees; and (4) holds a position which invites public scrutiny and discussion of the person holding it entirely apart from the scrutiny and discussion occasioned by the particular controversy." (Mosesian v. McClatchy Newspapers (1988) 205 Cal.App.3d 597, 608-609; see also Rosenblatt v. Baer (1966) 383 U.S. 75, 84 [15 L.Ed.2d 597, 604-605].)
We recognize Young is not a government employee. Government employment, however, is not a dispositive factor where the plaintiff in all other respects serves as a public official. (See Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230, 1239 [superintendent of private charter school system held to be a public official where charter schools under California law are considered part of the public school system]; HBO v. Harrison (Tex. Ct. App. 1998) 983 S.W.2d 31, 37-38 [private court-appointed psychologist held to be a public official where family court gave him power to decide issues of visitation].)
"[T]he touchstone for public official status is the extent to which the plaintiff's position is likely to attract or warrant scrutiny by members of the public. Such scrutiny may follow either because of the prominence of the position in the official hierarchy, or because the duties of the position tend naturally to have a relatively large or dramatic impact on members of the public." (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1611 (Kahn).)
The Kahn court determined a publicly employed social worker was a public official for purposes of defamation liability. Although the social worker did not have any significant control over governmental policy, she possessed considerable power over the lives affected by her work as a child welfare worker. This power made her to the families of the children she served "'the very epitome of government.' [Citation.]" (Kahn, supra, 232 Cal.App.3d at p. 1612.)
The Kahn court wrote: "Nothing in the record before us indicates plaintiff had any significant control over governmental policy. The same may be said, however, of a patrolman. Nonetheless, the power exercised by police officers, and their public visibility, naturally subject them to public scrutiny and make them public officials for purposes of defamation law. Plaintiff too possessed considerable power over the lives affected by her work as a child welfare worker. Her assessments and decisions directly and often immediately determined whether the educational, social, medical and economic needs of developmentally disabled children in her care would adequately be met." (Kahn, supra, 232 Cal.App.3d at p. 1611, italics added.)
Young's work and position were analogous to the social worker found to be a public official in Kahn. Young exercised significant sovereign power in assuming control of Mann's affairs. Pursuant to APS's request and court authority, she became the face of government assigned to take control of Mann's personal and financial affairs. This is an extraordinary power for the court to bestow upon a person. Of course, it is done with cause and under procedures designed to safeguard the individual as much as possible. But it is only through the power of the state that a person such as a conservator can co-opt another person's independent discretion and their liberty, and, in addition, force the affected person to pay for it. (Prob. Code, §§ 2430, 2640.)
Young is a professional fiduciary licensed by the state Department of Consumer Affairs and subject to comprehensive regulatory and ethical standards. (Prob. Code, § 60.1; Bus. & Prof. Code, §§ 6501, subd. (f), 6502, 6530, 6533; Cal. Code Regs., tit. 16, § 4470 et seq.) Although not all licensed professionals are public officials, such as teachers (Franklin v. Benevolent & Protective Order of Elks (1979) 97 Cal.App.3d 915), Young acted in a capacity beyond that of a teacher. Before the appointment of a conservator is effective, the conservator is required to take an oath to perform his or her duties according to the law. (Prob. Code, § 2300.) By her court appointment and under oath, Young became an agent of the state with power to interfere in the personal interests of a private citizen to whom she was not related and without that citizen's consent.
Unless a court orders otherwise, a temporary conservator over the person and estate of someone is authorized by law to marshal assets and establish accounts at financial institutions, and to consent to emergency medical treatment for the conservatee, all without the conservatee's consent. (Prob. Code, §§ 2252, subds. (b)(2), (3); 2354, subd. (c).) The trial court may also grant the conservator any additional powers it deems necessary to protect the conservatee's interests. (Prob. Code, § 2252, subds. (c), (d), (e).)
A person holding these sovereign powers over another unrelated person and using them for compensation is subject to the public's independent interest in her performance, and warrants public scrutiny beyond that occasioned by the controversy with Mann. An appointed conservator such as Young derives her authority from "the parens patriae power of the state to protect incompetent persons." (Conservatorship of Wendland (2001) 26 Cal.4th 519, 535.) The delegation of this government power to a private individual for compensation, and the power's interference with individual liberty, rightfully attracts public scrutiny. Young has been performing this work for more than 20 years. Ming reported that at the time of the broadcast, Young had approximately 100 conservator clients. Surely the government has a strong interest in ensuring its power directly impacting the lives of so many individuals is not abused. A person such as Young who by court appointment exercises that power for the benefit of a non-relative and for compensation thus does so as a public official for purposes of defamation liability.
Because we conclude Young acted as a public official, we need not address CBS's alternative argument that Young acted as a limited public figure. Because Young was a public official, she was required to introduce sufficient evidence to establish CBS acted with actual malice in order to proceed with her lawsuit. We review that issue next.
Evidence of Actual Malice
CBS claims Young cannot recover on any of the allegedly defamatory statements because she did not meet her constitutional burden of showing CBS made the statements with actual malice; i.e., with knowledge of their falsity or with reckless disregard of their truth or falsity. We agree with CBS.
" Actual malice . . . requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of ' reckless disregard ' ' cannot be fully encompassed in one infallible definition,' (St. Amant v. Thompson, 390 U.S. 727, 730 (1968), we have made clear that the defendant must have made the false publication with a ' high degree of awareness of . . . probable falsity, ' (Garrison v. Louisiana, 379 U.S. 64, 74 (1964), or must have 'entertained serious doubts as to the truth of his publication, ' (St. ...