Collins v. Waters ( 2023 )

Filed 6/5/23 (unmodified opinion attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOE E. COLLINS III, B312937
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV37401
v.
ORDER MODIFYING
MAXINE WATERS et al., OPINION AND DENYING
PETITION FOR
Defendants and REHEARING
Respondents.
[NO CHANGE IN
JUDGMENT]
THE COURT:
IT IS ORDERED the opinion in the above-entitled matter
filed on May 10, 2023, be modified in the following ways:
1. On page 2, the following sentences shall be added to the
end of the first full paragraph:
The test is subjective, not objective. (St. Amant,
supra, 390 U.S. at p. 731.)
2. On page 2, in the last paragraph, the fourth sentence,
“He showed Waters a document saying so,” shall be
replaced with the following sentence:
He publicized a document saying so.
3. On page 3, in the paragraph that continues from page 2,
the sentence “Waters easily could have checked its
authenticity, but did not,” shall be replaced with the
following sentence:
In the trial court, Collins maintained Waters easily
could have checked its authenticity; she neither
denied this nor checked.
4. On page 6, the fourth full paragraph, “Waters’s
declaration did not say she asked the attorney for his
personal or other knowledge about whether Collins’s
discharge in fact was dishonorable,” shall be replaced
with the following paragraph:
Waters’s declaration did not say she asked the
attorney whether Collins’s discharge in fact was
dishonorable or what else the attorney might know
about this.
5. On page 7, in the third full paragraph, the third
sentence, “He claimed it would have been easy for a
member of Congress like Waters to check his military
discharge status,” shall be replaced with the following
sentence:
Without objection, Collins testified in his written
declarations that it would have been easy for a
2
member of Congress like Waters to check his military
discharge status.
6. On page 8, the following paragraph shall be added
between the first and second full paragraphs:
In response to Collins’s opposition, Waters did
not object to, or attempt to contest, Collins’s written
evidence that she “easily” could have checked to
verify his discharge status. Nor did she object or
register disagreement when Collins’s counsel argued
at the motion hearing that Waters had access to
many avenues, including the “horse’s mouth,” to
confirm the information. In passing, we note that
Waters, in footnotes to her petition for rehearing in
our court, offers internet website citations and
unsourced factual assertions in a tardy effort to
controvert Collins’s evidence. These footnotes lack
even a request for judicial notice. We disregard these
citations and assertions. The place to develop the
factual record is the trial court.
7. On page 9, the fourth through sixth sentences of Section
II, “It was error to end this suit at this early stage, for
Collins established the minimal case needed to defeat
Waters’s special motion to strike. Crediting his
evidence, as is necessary in an anti-SLAPP analysis,
Collins showed Waters had failed to take an easy and
conclusive step to ascertain his discharge status. In the
face of facially valid proof of error, this failure created a
permissible inference of willful blindness,” shall be
3
replaced with the following three sentences:
It was error to end this suit at this early stage.
Crediting Collins’s evidence, as is necessary in an
anti-SLAPP analysis, Collins showed Waters had
failed to take an easy and conclusive step to ascertain
his discharge status. In the face of facially valid
proof of error, this failure created a permissible
inference of willful blindness, which, if believed by
the fact finder, could amount to clear and convincing
evidence of subjective actual malice.
8. On page 9, the last sentence of subsection A of Section
II, “We review these laws,” shall be replaced with the
following sentence:
We review these legal cross-currents.
9. On page 10, the following sentences shall be added after
the first citation in the third full paragraph:
While a defendant’s failure to investigate an issue
will not, alone, support a finding of actual malice, the
fact a defendant purposely avoided learning the truth
can support that finding. (Id. at p. 692; Khawar,
supra, 19 Cal.4th at pp. 274–280.)
10. On page 10, the following paragraph shall be added
between the third and fourth full paragraphs:
This standard is subjective, not objective.
Reckless conduct is not measured by whether a
reasonably prudent person would have published, or
would have investigated before publishing. There
4
must be sufficient evidence to permit the conclusion
that the defendant in fact entertained serious doubts
as to the truth of the publication. Publishing with
such doubts shows reckless disregard for truth or
falsity and demonstrates actual malice. (St. Amant,
supra, 390 U.S. at p. 731.)
11. On page 11, the following paragraph shall be added
between the first and second full paragraphs:
At trial, a public figure plaintiff like Collins
must establish actual malice by clear and convincing
evidence. In the context of a special motion to strike,
however, plaintiffs instead must establish only a
probability they can produce clear and convincing
evidence of actual malice. (Edward v. Ellis (2021) 72
Cal.App.5th 780, 793 (Edward).) In opposing such a
motion, defamation plaintiffs need not establish
malice by clear and convincing evidence. Rather,
they must meet their minimal burden by introducing
sufficient facts to establish a prima facie case of
actual malice. In other words, they must establish a
reasonable probability they can produce clear and
convincing evidence showing that the statements
were made with actual malice. (Young v. CBS
Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 563;
see also Mitchell v. Twin Galaxies, LLC (2021) 70
Cal.App.5th 207, 217–218, 220–224 (Mitchell).)
12. On page 12, the first sentence of subsection B of
Section II, “As a matter of federal constitutional law,
5
Collins’s discharge document put Waters on notice of a
considerable risk that conclusive evidence wholly
disproved her accusations,” shall be replaced with the
following sentence:
Collins’s discharge document put Waters on notice of
a considerable risk that conclusive evidence wholly
disproved her accusations.
13. On page 12, in the fourth full paragraph, the second
sentence, “Rather, we have additional facts: the plaintiff
showed the defendant facially valid and easily verifiable
documentary proof creating a considerable risk the
defendant was uttering a falsehood; and yet the
defendant kept uttering without checking,” shall be
replaced with the following sentence:
Rather, we have additional facts: the plaintiff
responded to the defendant’s charge with facially
valid and easily verifiable documentary proof
creating a considerable risk the defendant was
uttering a falsehood; and yet the defendant kept
uttering without checking.
14. On page 16, the following sentence shall be added to
the end of the third full paragraph:
(See also Mitchell, supra, 70 Cal.App.5th at pp. 221–
224.)
15. On page 17, the first full paragraph, “Or the trier of
fact may question why Waters would call the Navy’s
attorney simply to have him read an opinion she already
6
had, and why she would refrain from asking that
attorney for his personal knowledge about Collins’s
discharge status,” shall be replaced with the following
paragraph:
Or the trier of fact may question why Waters
would call the Navy’s attorney simply to have him
read an opinion she already had, and why she would
refrain from asking that attorney for his own
knowledge about Collins’s discharge status.
16. On page 17, the third and fourth full paragraphs, “At
this early stage of the case and without weighing the
conflicting evidence, Collins established his case has at
least minimal merit. [¶] Collins showed Waters an
official-looking document that, if authentic, completely
pierced through to absolute truth, whatever Collins’s
foibles might have been, no matter the federal court
opinion, and irrespective of other information,” shall be
replaced with the following two paragraphs:
At this early stage of the case and without
weighing the conflicting evidence, Collins established
the prima facie case necessary to show his case has at
least minimal merit.
Collins publicized an official-looking document
that, if authentic, completely pierced through to
absolute truth, whatever Collins’s foibles might have
been, no matter the federal court opinion, and
irrespective of other information.
17. On page 18, the last sentence of the second full
7
paragraph, “That fact—that it would have been easy to
check—is in the record and is undisputed,” shall be
replaced with the following sentence:
That fact—that it would have been easy to check—is
in the record and is undisputed in the record.
18. On page 18, the following paragraph shall be added
between the third and fourth full paragraphs:
“Much of the evaluation of actual malice will turn
on credibility evaluations. Waters’s declarations
steadfastly professed subjective blamelessness. The
standard is subjective. There is no question about
that. But testimony from a party can be trustworthy
and conclusive, or self-serving and unreliable, or
anywhere in between. Circumstantial evidence can
be powerful proof to the contrary, or not. For
instance, was Waters’s call to Collins’s opposing
federal counsel structured and timed only to build a
record and to confirm what she already knew? Or
was it an open-ended inquiry that, in good faith,
earnestly sought the truth? All these determinations
are for the fact finder. (See Edward, supra, 72
Cal.App.5th at pp. 793–794.)”
19. On page 18, in the fourth full paragraph, the third
and fourth sentences, “If fact finders drew this
inference, Collins’s proof could constitute clear and
convincing evidence of actual malice. Reasonable minds
could agree that people purposefully ignorant about the
truth can have a high degree of awareness of probable
8
falsity of a claim they deliberately avoid checking,” shall
be replaced with the following two sentences:
If fact finders drew this inference, Collins’s proof
could constitute clear and convincing evidence of
subjective actual malice. Reasonable minds could
unhesitatingly agree that people purposefully
ignorant about the truth can have a high degree of
subjective awareness of probable falsity of a claim
they deliberately avoid checking.
The petition for rehearing filed by Respondents Maxine
Waters and Citizens for Waters is denied.
There is no change in the judgment.
____________________________________________________________
GRIMES, Acting P. J. WILEY, J. VIRAMONTES, J.
9
Filed 5/10/23 (unmodified opinion)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOE E. COLLINS III, B312937
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV37401
v.
MAXINE WATERS et al.,
Defendants and
Respondents.
APPEAL from an order of the Superior Court of
Los Angeles County, Yolanda Orozco, Judge. Reversed and
remanded.
Law Offices of Donna Bullock and Donna C. Bullock for
Plaintiff and Appellant.
Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg
& Rhow, Gary S. Lincenberg and Thomas V. Reichert for
Defendants and Respondents.
____________________
Actual malice is a term of art in defamation law. If you,
with actual malice, publish falsehoods about a public figure, you
forfeit the constitutional protection of New York Times v.
Sullivan (1964) 376 U.S. 254, 283–288. Your actual malice
means the public figure can sue you for defamation. (St. Amant
v. Thompson (1968) 390 U.S. 727, 728 (St. Amant).)
Blameworthy disregard for truth dissolves your constitutional
shield.
Actual malice, in this constitutional usage, does not mean
ill will. (Harte-Hanks Communications, Inc. v. Connaughton
(1989) 491 U.S. 657, 666 (Harte-Hanks).) Rather, people speak
with actual malice when they know their statements are false, or
they recklessly disregard whether their statements might be
false. (St. Amant, supra, 390 U.S. at p. 728.) Reckless disregard,
in this sense, requires defendant speakers to have a high degree
of awareness of probable falsity. (Harte-Hanks, supra, at p. 667.)
Plaintiffs who are public figures must prove actual malice
by clear and convincing evidence, but they may rely on
circumstantial evidence to do so. (Harte-Hanks, supra, 491 U.S.
at pp. 659, 668.) While a defendant’s failure to investigate an
issue will not, alone, support a finding of actual malice, the fact a
defendant purposely avoided learning the truth can support that
finding. (Id. at p. 692; Khawar v. Globe International, Inc. (1998)
19 Cal.4th 254, 274–280 (Khawar).)
We apply these rules to a case about an election campaign.
In 2020, challenger Joe E. Collins III and incumbent
Maxine Waters competed for a seat in Congress. During the
campaign, Waters accused Collins of a dishonorable discharge
from the Navy. Collins shot back that he had not been
dishonorably discharged. He showed Waters a document saying
so. This document apparently was official. There was nothing
suspicious about its appearance. The document, if genuine,
2
would have established without doubt that Waters’s charge was
false. Waters easily could have checked its authenticity, but did
not. Her appellate briefing asserts that today, years later, she
still does not know the truth about whether Collins’s discharge
was dishonorable.
This disinterest in a conclusive and easily-available fact
could suggest willful blindness.
Collins sued Waters for defamation during the campaign,
but Waters convinced the trial court to grant her special motion
to strike his suit. We reverse that order. The preliminary
posture of the case required the court to accept Collins’s evidence
as true. His evidence created a possible inference of Waters’s
willful blindness, which is probative of actual malice. It was
error to grant Waters’s anti-SLAPP motion.
I
We set out the situation in more detail.
Waters and Collins competed to represent California’s 43rd
congressional district. Well before the November 3, 2020 election
date, Collins heard rumors Waters would claim his Navy
discharge was dishonorable. So, on August 18, 2020, he posted a
document on his campaign website. The document stated his
discharge had been “under honorable conditions (general).”
In radio and print ads starting in August and continuing in
September, October, and November 2020, Waters and her
campaign told the public that Collins’s discharge had been
dishonorable.
Collins sued Waters and her campaign committee for
defamation on September 30, 2020—more than a month before
the election. He appended to his complaint a screenshot of his
Facebook posting of his discharge document.
3
This posted document is the focus of this suit.
The posting showed a one-page form the parties refer to as
a DD-214.
The document’s title is “CERTIFICATE OF RELEASE OR
DISCHARGE FROM ACTIVE DUTY.” After listing Collins’s
name and personal information, the document summarizes his
service record in several boxes. Near the bottom, under “TYPE
OF SEPARATION,” the form states “DISCHARGED.”
To the right of that box is one headed “CHARACTER OF
SERVICE.” Typed in that box are the words “UNDER
HONORABLE CONDITIONS (GENERAL).”
Collins or someone has circled these words—“UNDER
HONORABLE CONDITIONS (GENERAL)”—with a red oval in
the record version of the document.
Throughout this case, Collins repeatedly has emphasized
his Navy discharge was “under honorable conditions (general).”
Still lower on the page is a box labeled “NARRATIVE
REASON FOR SEPARATION.” The words in that box are
“MISCONDUCT (SERIOUS OFFENSE).”
The exhibit in the record apparently is a copy of the
document from a screenshot of a Facebook website. This
attachment to Collins’s complaint has the word “Facebook” and a
Facebook logo at the top. At the bottom are symbols denoting
thumbs up and a heart and “101 Comments.” The record image
of this page has black redactions of some of Collins’s personal
information, as well as the red oval drawn around the words
“UNDER HONORABLE CONDITIONS (GENERAL).”
On October 8, 2020, Collins sent his complaint, with the
exhibit and a letter demanding a retraction, by certified mail to
Waters at her offices in Washington, D.C. and Los Angeles.
4
Nevertheless, Waters, according to Collins, continued to tell
voters Collins’s discharge was dishonorable, and did so several
times a day throughout October 2020 and into November.
Waters filed a special motion to strike Collins’s complaint.
She accompanied her motion with her two declarations.
We summarize Waters’s two declarations.
Waters explained she and her staff had investigated Collins
when he entered the race. They traveled to San Diego, where
Collins had been stationed in the Navy.
Waters discovered two lawsuits Collins filed in San Diego.
In the first lawsuit, Collins disputed an obligation to pay
child support and claimed damages of $100 million. Collins,
Waters declared, filed accompanying documents showing he had
purportedly created a “Royal Family of Collins Trust” into which
he had placed assets like his birth certificate—an asset Collins
claimed had a value of $100 billion. The total value Collins
asserted for these trust items was over $700 billion. Waters
appended Collins’s filings to her declaration.
Waters also declared that, in his second San Diego lawsuit,
Collins sued the Navy for breaching the terms of use of his
campaign website. In his 2017 complaint, Collins requested his
discharge be “[u]pdate[d] . . . to honorable.”
A federal district court issued a decision in Collins’s second
case. (Collins v. United States Navy (2021) No. 17CV2451-MMA
(BGS), 2021 WL 1998642.)
Waters declared this federal decision played a major role in
her view of Collins and his discharge. In the background section
of this decision, the first sentence stated, with our italics, that
“[t]his action arises out of events related to [Collins’s]
dishonorable discharge from the Navy.”
5
The federal district court issued this order on August 8,
2018.
We interrupt the temporal flow of these facts to note that,
years later, the court deleted the significant word “dishonorable”
from its 2018 decision. In May 2021—after the trial court
granted Waters’s anti-SLAPP motion and after Collins had filed
his notice of appeal in this case—the federal district court, on its
own motion, modified its decision to change this sentence and to
remove what it termed the “inaccurate” description of Collins’s
discharge as “dishonorable.” Without calling the discharge
“honorable” or “dishonorable,” then, the amended May 2021
decision simply refers to Collins’s separation as a “discharge.”
(Collins, supra, 2021 WL 1998642, at *1, fn. 1.)
Returning to Waters’s declarations, she recounted how she
had called the attorney who represented the Navy in Collins’s
second lawsuit. Waters declared she asked him about the case.
The attorney said he would pull a copy of the decision and would
call Waters back. “When he called me back, he told me, ‘It says
right here, he was dishonorably discharged!’ ”
Waters’s declaration did not say she asked the attorney for
his personal or other knowledge about whether Collins’s
discharge in fact was dishonorable.
Waters declared Collins filed other documents in his second
lawsuit that she said revealed his “dishonorable character.”
Waters claimed the documents showed Collins had been
disciplined for running for President while in the Navy.
Waters also alleged the documents showed the Navy had
disciplined Collins for providing alcohol to an underage sailor and
for having sex with a service member under his command.
Waters stated Collins was the subject of a keepaway order and
6
that he was running a cocktail lounge, which he valued at $100
million, that was simply his on-base apartment in San Diego.
Waters also learned that, in connection with these San
Diego lawsuits, Collins filed an application to proceed in forma
pauperis in which he stated he was not receiving any
governmental benefits. Waters declared she inferred this meant
Collins’s discharge had been dishonorable, for service members
with honorable discharges are entitled to military benefits while
those with dishonorable discharges are not.
In sum, Waters declared she had no reason to believe
anything Collins told her or any document he showed her. She
declared she sincerely believed Collins’s discharge was
dishonorable.
Collins opposed Waters’s anti-SLAPP motion. He conceded
the first prong of the two-prong anti-SLAPP test but asserted on
prong two his case had merit because Waters had published with
reckless disregard for the truth. He claimed it would have been
easy for a member of Congress like Waters to check his military
discharge status. Collins authenticated and appended the
discharge document he had attached to his complaint—the so-
called DD-214.
During this lawsuit, Collins provided Waters with five
more documents from the Navy showing his discharge status had
not been dishonorable.
Collins’s other proof included evidence that, beginning in
September 2020, Waters ran a radio advertisement in her own
voice saying Collins “had his health care paid for by the Navy.”
In her declaration, Waters had stated she knew a dishonorably
discharged veteran is ineligible for military benefits. Collins
7
argued this radio ad proved Waters knew he had not been
dishonorably discharged.
Collins declared the five types of military discharges are:
“(1) Honorable, (2) General, Under Honorable Conditions (which
is my discharge as stated in my DD-214); (3) Under Other than
Honorable Conditions; (4) Bad Conduct; and (5) Dishonorable.”
The trial court granted Waters’s special motion to strike.
On prong two, the court found Collins failed to meet his burden of
proving actual malice by clear and convincing evidence. The
court ruled Waters subjectively and sincerely doubted the
validity of the document shown in Collins’s Facebook posting.
Waters, the court ruled, had three bases for believing Collins had
been dishonorably discharged.
1. Waters relied on the district court order stating
Collins’s discharge was “dishonorable.”
2. Collins had asked the district court to update his
discharge to honorable.
3. Collins’s past conduct convinced Waters that Collins
lacked integrity and veracity.
Quoting Reader’s Digest Association, Inc. v. Superior Court
(1984) 37 Cal.3d 244, 258 (Reader’s Digest), the court ruled
Waters’s failure to conduct a thorough and objective
investigation, standing alone, did not prove actual malice. The
court also granted Waters’s motion for attorney fees.
Collins appealed the order granting the anti-SLAPP
motion.
II
Free speech is vital in America, but truth has a place in the
public square as well. Reckless disregard for the truth can create
liability for defamation. When you face powerful documentary
8
evidence your accusation is false, when checking is easy, and
when you skip the checking but keep accusing, a jury could
conclude you have crossed the line. It was error to end this suit
at this early stage, for Collins established the minimal case
needed to defeat Waters’s special motion to strike. Crediting his
evidence, as is necessary in an anti-SLAPP analysis, Collins
showed Waters had failed to take an easy and conclusive step to
ascertain his discharge status. In the face of facially valid proof
of error, this failure created a permissible inference of willful
blindness. The trier of fact ultimately may draw other inferences
more favorable to Waters and may reject Collins’s case lock,
stock, and barrel. But Collins’s showing was enough to allow this
litigation to go forward. We reverse and remand for further
proceedings.
A
Legal cross-currents run through this case. Within broad
limits, federal first amendment law strongly favors substantive
protection of free speech. But state anti-SLAPP law sets
procedural rules about how courts view the factual record: we
must accept the plaintiff’s proof, we do not resolve conflicts in the
evidence, and we cannot settle credibility contests. We review
these laws.
1
The federal constitutional guarantee of free speech has its
fullest and most urgent application in the conduct of political
campaigns. Those engaged in political debate are entitled not
only to speak responsibly, but also to speak foolishly and without
moderation. (Beilenson v. Superior Court (1996) 44 Cal.App.4th
944, 949–950 (Beilenson).)
9
It is “a prized American privilege to speak one’s mind,
although not always with perfect good taste, on all public
institutions.” (New York Times v. Sullivan, supra, 376 U.S. at p.
269, quotation marks and citation omitted.) Our “profound
national commitment [is] to the principle that debate on public
issues should be uninhibited, robust, and wide-open, and that it
may well include vehement, caustic, and sometimes unpleasantly
sharp attacks on government and public officials.” (Id. at p. 270.)
Courts formulated the actual malice standard with keen
awareness that, in free debate, erroneous statements are
inevitable. Courts must protect some errors to give free
expression breathing space to survive. The actual malice
standard is exacting: it protects some falsehoods in order to
safeguard speech that matters. (Annette F. v. Sharon S. (2004)
119 Cal.App.4th 1146, 1168 (Annette F.).)
Plaintiffs like candidate Collins who are public figures
must prove actual malice by clear and convincing evidence and
may rely on circumstantial evidence to do so. (Harte-Hanks,
supra, 491 U.S. at pp. 659, 668.) “The clear and convincing
standard requires that the evidence be such as to command the
unhesitating assent of every reasonable mind.” (Beilenson,
supra, 44 Cal.App.4th at p. 950.)
These federal constitutional rules govern. The parties have
not suggested state constitutional law differs.
2
The pivotal state law is the anti-SLAPP statute. This
statute created an efficient mechanism for the early and
economical dismissal of nonmeritorious claims arising from
protected activity. (Annette F., supra, 119 Cal.App.4th at p.
1159.) The procedure’s goal is, at the very beginning of the
10
lawsuit, to weed out meritless claims. (Baral v. Schnitt (2016) 1
Cal.5th 376, 384.)
Analysis of special motions to strike proceeds in two steps.
Collins conceded the first step about whether his claims arose
from protected activity: indeed they did. In the second step,
Collins had the burden of showing his claims had at least
minimal merit. (Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1009.)
This second step required Collins to demonstrate a
probability of success. In this summary-judgment-like process,
courts do not weigh evidence or resolve conflicting factual claims.
Instead they evaluate whether plaintiffs like Collins have stated
legally sufficient claims and whether these plaintiffs have made a
prima facie evidentiary showing sufficient to sustain a favorable
judgment. Courts are required to accept the plaintiff’s evidence
as true. The task is to evaluate the defense showing only to
determine if it defeats the plaintiff’s claims as a matter of law. If
the lawsuit has even minimal merit, the motion fails and the suit
proceeds. Appellate review is independent. (Monster Energy Co.
v. Schechter (2019) 7 Cal.5th 781, 788 (Monster).)
These state procedural rules have a strong impact on this
case, because one main line of attack for Waters is her contention
that Collins is so disreputable that she could not believe anything
he said. At this preliminary stage of the case, however, we must
accept the plaintiff’s evidence fully. We do not resolve credibility
disputes or evidentiary conflicts. (Taus v. Loftus (2007) 40
Cal.4th 683, 714.) A court cannot grant a special motion to strike
if the plaintiff has presented admissible evidence that, if believed
by the trier of fact, would support a cause of action against the
defendant. (Id. at pp. 729, 736.)
11
B
As a matter of federal constitutional law, Collins’s
discharge document put Waters on notice of a considerable risk
that conclusive evidence wholly disproved her accusations. It
would have been easy for Waters then to check, but Waters kept
repeating the accusation without checking. A reasonable jury
could conclude Waters’s lack of interest was studied: a
purposeful effort to maintain plausible deniability. If a factfinder
drew an inference of willful blindness, it would impeach Waters’s
claim of subjective blamelessness. The answer to this question of
credibility was for the fact finder to ascertain. The decision to
grant the special motion to strike was error.
The trial court quoted this sentence from page 258 of the
Reader’s Digest decision, to which we add our emphasis: “The
failure to conduct a thorough and objective investigation,
standing alone, does not prove actual malice, nor even necessarily
raise a triable issue of fact on that controversy.”
That quotation is accurate and binding. But the Reader’s
Digest decision also stated a “failure to investigate” was among
the pertinent factors that, “in an appropriate case, indicate that
the publisher himself had serious doubts regarding the truth of
his publication.” (Reader’s Digest, supra, 37 Cal.3d at p. 258,
italics added.)
This is an “appropriate case” fitting the Reader’s Digest
decision, for here the failure to investigate did not stand alone.
Rather, we have additional facts: the plaintiff showed the
defendant facially valid and easily verifiable documentary proof
creating a considerable risk the defendant was uttering a
falsehood; and yet the defendant kept uttering without checking.
There was nothing like that in the Reader’s Digest case. (See
12
Reader’s Digest, supra, 37 Cal.3d at p. 259 [“nothing . . .
suggest[ed] inaccuracy”].)
Nor is this a case a debate over whether a word is merely
“technically incorrect.” (Annette F., supra, 119 Cal.App.4th at p.
1170 [“convicted” can refer to a noncriminal adjudication of
domestic violence]; see also Conroy v. Spitzer (1999) 70
Cal.App.4th 1446, 1453 [ordinary people do not equate “guilty”
with only criminal guilt].)
Rather, the guiding authorities are three other decisions:
Harte-Hanks, Khawar, and Antonovich v. Superior Court (1991)
234 Cal.App.3d 1041, 1053 (Antonovich).
In Harte-Hanks, Connaughton was an unsuccessful
candidate in a judicial election who sued Journal News, which
had supported his rival. About one week before the election,
Journal News ran a front-page story quoting a grand jury witness
named Thompson accusing Connaughton of using “dirty tricks” in
a grand jury investigation. A jury found that the news story was
defamatory and that clear and convincing evidence showed the
paper had published with actual malice.
The Supreme Court of the United States ruled Journal
News had published with actual malice. Part of the key evidence
was that Connaughton made exculpatory audiotapes available to
Journal News but “no one at the newspaper took the time to
listen to them.” (Harte-Hanks, supra, 491 U.S. at pp. 660–661,
690–692.) Listening to these audiotapes would have been a
“simple means” of verifying—or disproving—a challenged claim.
(Id. at p. 683.)
“Similarly, there is no question that the Journal News was
aware that Patsy Stephens was a key witness and that they
failed to make any effort to interview her. Accepting the jury’s
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determination that [Journal News’s] explanations for these
omissions were not credible, it is likely that the newspaper’s
inaction was a product of a deliberate decision not to acquire
knowledge of facts that might confirm the probable falsity of
Thompson’s charges. Although failure to investigate will not
alone support a finding of actual malice, [citation], the purposeful
avoidance of the truth is in a different category.” (Harte-Hanks,
supra, 491 U.S. at p. 692, italics added; see also id. at pp. 682–
683.)
“[I]f the Journal News had serious doubts concerning the
truth of Thompson’s remarks, but was committed to running the
story, there was good reason not to interview Stephens—while
denials coming from Connaughton’s supporters might be
explained as motivated by a desire to assist Connaughton, a
denial coming from Stephens would quickly put an end to the
story.” (Harte-Hanks, supra, 491 U.S. at p. 682.)
In sum, crucial proof of Journal News’s actual malice was
its “deliberate decision not to acquire knowledge of facts that
might confirm the probable falsity.” (Harte-Hanks, supra, 491
U.S. at p. 692.) Do not listen to the audiotapes; do not interview
Patsy Stephens. We are committed to running the story. The
audiotapes and Stephens can tell us only what we do not want to
hear. This was evidence of actual malice.
In Khawar, a journalist sued the Globe newspaper for
repeating claims from a book by one Morrow accusing the
journalist of assassinating Robert Kennedy. A jury awarded the
journalist over $1 million because Globe republished falsehoods
with actual malice. The California Supreme Court determined
there was clear and convincing evidence of actual malice. That
finding may be upheld, the court ruled, where there are obvious
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reasons to doubt the accuracy of the challenged report, and the
one republishing the report failed to consult “relevant
documentary sources.” (Khawar, supra, 19 Cal.4th at pp. 259–
261, 273–276.) The court ruled the paper “failed to use readily
available means to verify the accuracy of the claim” at issue. (Id.
at p. 276.) For example, the reporter who wrote the article had
not “contacted any of the eyewitnesses to the assassination, some
of whom were prominent individuals who could easily have been
located.” (Id. at p. 277.)
“Nor is there any evidence that anyone working for Globe
reviewed the voluminous public records of the government
investigation of the Kennedy assassination or the Sirhan trial.
Indeed, Globe’s managing editor, Robert Taylor, conceded during
his testimony that Globe made no attempt to independently
investigate the truth of any of the statements in the Morrow
book. In short, phrasing our conclusion in the language of the
United States Supreme Court, ‘Accepting the jury’s
determination that [Globe]’s explanations for these omissions
were not credible, it is likely that [Globe]’s inaction was a product
of a deliberate decision not to acquire knowledge of facts that
might confirm the probable falsity of [the Morrow book]’s
charges.’ ” (Khawar, supra, 19 Cal.4th at p. 277.)
The California Supreme Court concluded the trial evidence
“strongly supports an inference that Globe purposefully avoided
the truth and published the Globe article despite serious doubts
regarding the truth of the accusation against Khawar.” (Khawar,
supra, 19 Cal.4th at p. 279.)
In Antonovich, there were two candidates for a seat on a
county board of supervisors: the incumbent, Antonovich, and his
challenger, Ward. Ward previously held that seat on the board of
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supervisors, but Antonovich defeated Ward in an earlier election.
Years later, the two faced off again, and during this second
contest the now-incumbent Antonovich accused Ward, when
Ward departed the office after his earlier defeat, of spitefully
shredding official files just before Antonovich moved in.
(Antonovich, supra, 234 Cal.App.3d at p. 1045.) Antonovich’s
point was Ward destroyed important public property just to make
life hard for Antonovich. During the campaign, Antonovich
repeated variations of this charge against Ward some six times.
(Id. at p. 1049.)
Ward publicly challenged Antonovich’s shredding
accusation. Afterwards Antonovich persisted in repeating the
substance of this charge without taking steps to inquire into its
truth, despite an offer from Ward of proof for Antonovich’s
inspection. (Antonovich, supra, 234 Cal.App.3d at p. 1053.)
“From this evidence the trier of fact was entitled to find
that Antonovich’s ‘inaction was a product of a deliberate decision
not to acquire knowledge of facts that might confirm the probable
falsity of [the subject] charges,’ which amounts to a ‘purposeful
avoidance of the truth’ and will support a finding of actual malice.
(Harte-Hanks, [supra,] 491 U.S. 657, 692.)” (Antonovich, supra,
234 Cal.App.3d at p. 1053, italics added.)
Harte-Hanks, Khawar, and Antonovich govern this suit.
Major factual distinctions are possible between this suit
and these three authorities. Central among them is the contrast
between, on the one hand, the prestige and reliability of the
federal district court decision on which Waters relied and, on the
other hand, what Waters charged was Collins’s lack of veracity
and “dishonorable character.” So too could Waters’s phone call to
Collins’s opposing counsel, as well as Collins’s statement about
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upgrading his discharge status, count as distinguishing positives
for Waters. It is entirely possible that the trier of fact, later in
this proceeding, will view all factors in Waters’s favor and fully
accept her professed sincerity. Thus a jury might find against
Collins, with his $100 billion birth certificate and so forth.
Or the trier of fact may question why Waters would call the
Navy’s attorney simply to have him read an opinion she already
had, and why she would refrain from asking that attorney for his
personal knowledge about Collins’s discharge status.
A further distinction between Harte-Hanks, Khawar, and
Antonovich and this suit is the ease of internet research, which
can yield information with a few strokes. A jury might find this
distinction cuts in Collins’s favor.
At this early stage of the case and without weighing the
conflicting evidence, Collins established his case has at least
minimal merit.
Collins showed Waters an official-looking document that, if
authentic, completely pierced through to absolute truth,
whatever Collins’s foibles might have been, no matter the federal
court opinion, and irrespective of other information.
Waters does not dispute this kind of document—the DD-
214—is an authoritative source of discharge information. If
authentic, it would prove Waters’s accusation was totally false.
The definitive quality of this proof magnified the risk of ignoring
it.
Waters has not critiqued this document’s appearance. It
looks to be genuine in every respect. Indeed, as noted above, the
form had negative information about Collins: it stated Collins’s
“NARRATIVE REASON FOR SEPARATION” was
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“MISCONDUCT (SERIOUS OFFENSE).” If Collins fabricated a
document to make himself look good, this entry is puzzling.
Perhaps the document was a total fake. These days,
anyone with skills can alter documents or create them from
scratch on a laptop at home. At oral argument, Waters rightly
emphasized that software is making it ever easier to concoct
screen images that look genuine but are not.
But official documents can be checked officially. It could
only have been to Waters’s electoral advantage to expose Collins’s
fabrication, if fabrication it truly was. And the official check was
easy to do. That fact—that it would have been easy to check—is
in the record and is undisputed.
Waters did not check. Her briefing to us states that, to this
day, she still has not checked.
A fact finder could conclude Waters was like Journal News,
Globe, and Antonovich: do not ask if you are committed to the
project and would rather not know. After they are told that
potentially devastating information is easily available,
decisionmakers who opt for ignorance instead of ready truth can
be willfully blind. If fact finders drew this inference, Collins’s
proof could constitute clear and convincing evidence of actual
malice. Reasonable minds could agree that people purposefully
ignorant about the truth can have a high degree of awareness of
probable falsity of a claim they deliberately avoid checking. At
this preliminary stage of the case, then, Waters has not defeated
Collins’s suit as a matter of law. (See Monster, supra, 7 Cal.5th
at p. 788 [court evaluates the defendant’s showing to determine if
it defeats the plaintiff’s claim as a matter of law].)
Waters faults Collins for not filing a supplemental
complaint but cites no authority for the relevance of this point to
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a special motion to strike. Collins at trial could move to conform
his pleading to proof. The absence of a supplemental pleading
does not detract from Collins’s showing of minimal merit.
Because it was a mistake to grant the special motion to
strike on this record, we also vacate the trial court’s award of
attorney fees to Waters.
DISPOSITION
We reverse the order granting the special motion to strike,
vacate the trial court’s fee award, and remand for further
proceedings. We award costs to Collins.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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