Bruce Fein v. Peter Kesterson , 476 F. App'x 673 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRUCE E. FEIN, No. 10-56502
Plaintiff - Appellant, D.C. No. 2:10-cv-02048-ABC-SS
v.
MEMORANDUM *
PETER SCOTT KESTERSON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted February 15, 2012
Pasadena, California
Before: FARRIS and W. FLETCHER, Circuit Judges, and KORMAN, Senior
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
Bruce Fein appeals the district court’s grant of Peter Kesterson’s motion to
strike Fein’s defamation suit under California’s anti-strategic lawsuits against
public participation (anti-SLAPP) law. See Cal. Civ. Proc. Code § 425.16(b)(1).
We review de novo the district court’s grant of an anti-SLAPP motion. Price v.
Stossel, 620 F.3d 992, 999 (9th Cir. 2010). We affirm.
The issue here is narrow. To prevail, Fein must show a probability he can
prove by clear and convincing evidence that Kesterson showed reckless disregard
for the truth. Annette F. v. Sharon S., 119 Cal. App. 4th 1146, 1167 (Cal. Ct. App.
2004). Fein has not carried this burden. “Reckless disregard” requires a “high
degree of awareness . . . of probable falsity.” Id. (quoting Garrison v. Louisiana,
379 U.S. 64, 74 (1964)). Kesterson did not have the necessary suspicion of likely
falsity. He relied on several credible newspapers, and his conclusions were a
rational interpretation of the articles he read. See Conroy v. Spitzer, 70 Cal. App.
4th 1446, 1453 (Cal. Ct. App. 1999); Time, Inc. v. Pape, 401 U.S. 279, 290 (1971).
The other evidence in the record does not support a contrary inference strong
enough to deny an anti-SLAPP motion. There were no “obvious reasons” for
Kesterson to doubt certain of his sources, and even if there were, he confirmed his
conclusions by consulting more reliable sources. See Dodds v. Am. Broad Co., 145
F.3d 1053, 1061-63 (9th Cir. 1998). Kesterson’s concessions that he was not 100%
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certain about his conclusions did not equal “a high degree of awareness
of . . . probable falsity.” Annette F., 119 Cal. App. 4th at 1167 (quoting Garrison,
379 U.S. at 74). Nor did Kesterson’s supposed motive to defame Fein. See Live
Oak Publ’g Co. v. Cohagan, 234 Cal. App. 3d 1277, 1292 (Cal. Ct. App. 1991).
AFFIRMED. Costs to Kesterson.
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