Cases...
Robertson v. Rodriguez (1995) [36 Cal.App.4th 347]
[No. B075094. Second Dist., Div. Three. Jun 29, 1995.]
JOHN O. ROBERTSON, Plaintiff and Appellant, v. ALEX
RODRIGUEZ et al., Defendants and Appellants.
(Superior Court of Los Angeles County, No. VC 011873,
Daniel S. Pratt, Judge.)
(Opinion by Klein, P. J., with Croskey, J., and Luke,
J., fn. * concurring.)
COUNSEL
Robert Marc Hindin for Plaintiff and Appellant.
Tuttle & Taylor, Merrick J. Bobb and Jeffrey D.
Wexler for Defendants and Appellants.
OPINION
KLEIN, P. J.
Plaintiff and appellant John O. Robertson (Robertson)
appeals a judgment striking his complaint and dismissing
his action pursuant to Code of Civil Procedure section
425.16 and awarding $15,000 in attorney {Page 36 Cal.App.4th
352} fees to defendants Alex Rodriguez (Rodriguez),
Jack Cluck, Joseph Graffio and David Silva (collectively,
defendants). fn. 1
Defendants also appeal, seeking review of the trial
court's attorney fees ruling, and contend they were
entitled to an award of $23,847.
The issues include whether section 425.16 is applicable
to a cause of action which arose before its effective
date, the standard for determining whether a claim has
a "probability" of prevailing, and whether
the statute authorizes an award of "reasonable"
attorney fees to a prevailing defendant as opposed to
the defendant's actual attorney fees.
We conclude the statute applies to actions which accrued
before its effective date because it does not change
the legal effect of past conduct. A plaintiff may withstand
a motion to strike by demonstrating sufficient facts
to establish a prima facie case. Further, the prevailing
party, whether plaintiff or defendant, is limited to
recovery of reasonable attorney fees. For these and
other reasons discussed below, the judgment is affirmed.
Factual and Procedural Background
Robertson was a councilman for the City of Cudahy (the
City), as were the defendants. Defendants were the proponents
of a recall petition against Robertson.
On November 5, 1992, Robertson filed a libel action
against defendants. Although the complaint alleged defendants
had made several libelous statements, Robertson's brief
challenges the trial court's ruling with respect to
a single statement by Rodriguez.
In the second cause of action directed solely against
Rodriguez, Robertson pled that in October 1992, Rodriguez
published a mailer asserting Robertson "was fined
for running an illegal business out of his home apparently
feeling that as a Councilman he, Mr. Robertson, did
not have to obey the law." A copy of the mailer
was appended to the complaint as an exhibit.
Defendants filed their answers and then brought a special
motion to strike pursuant to section 425.16. Defendants
contended the complaint could not {Page 36 Cal.App.4th
353}stand because Robertson could not show a probability
he would prevail on the claim and that the statements
were true and privileged under the First Amendment due
to Robertson's status as a public official. Defendants
also requested attorney fees pursuant to the statute.
The moving papers were supported by Rodriguez's declaration,
which stated: "At some point in time, I became
aware that the City ... had brought a criminal prosecution
against [Robertson] for running a business out of his
home in Cudahy, in violation of City zoning laws. In
August or September 1992, I asked Mr. Joseph [the city
manager and city clerk] about the prosecution. Mr. Joseph
told me that [Robertson] had paid the City $1,000 and
had agreed to move his business outside the City ....
Mr. Joseph also gave me copies of a $1,000 cashier's
check from [Robertson] to the City ... and of the agreement
ending the prosecution of [Robertson]."
Attached to Rodriguez's declaration were copies of the
cashier's check and the civil compromise and abatement
agreement (the civil compromise) among the City's city
prosecutor, Robertson and Earth Engineering, Inc. (EEI),
of which Robertson was president. The civil compromise
recited EEI would reimburse the city $1,000 for investigation
and enforcement costs, EEI and Robertson's denial of
violating the law, and their agreement not to conduct
business operations or corporate activities in a residential
zone of the City.
In opposition, Robertson argued section 425.16 was inapplicable
because the cause of action arose prior to the statute's
effective date of January 1, 1993, and that libelous
statements made during a recall campaign or election
were actionable.
Robertson's declaration asserted, inter alia, he required
more time to ascertain the facts and had not yet taken
the depositions of councilmen Cluck, Graffio and Silva,
although he had taken the depositions of Rodriguez and
Joseph. With respect to Rodriguez's reliance on the
civil compromise in his moving declaration, Robertson
contended the document clearly and equivocally illustrated
any charge was dissolved by the civil compromise and
there was no conviction or fine.
On March 1, 1993, the trial court heard and granted
the motion, ruling the "[j]ob performance of a
public official is a matter of public concern. Plaintiff's
declaration does not give rise to actual malice. Legislative
intent is to discourage lawsuits where political conduct
is involved. [Section] {Page 36 Cal.App.4th 354}425.16
was enacted for that purpose. This motion [is to be]
treated as a motion for summary judgment ...."
fn. 2
On March 24, 1993, defendants filed a motion for costs
and attorney fees, requesting $23,847 in total. (section
425.16, subd. (c).)
Robertson argued the attorney fees motion was stayed
by his filing of a notice of appeal on March 29, 1993,
from the March 1, 1993, ruling.
The trial court rejected Robertson's jurisdictional
argument and awarded $15,000 to defendants.
Both Robertson and defendants appealed the judgment.
Contentions
Robertson contends: his libel claim is not subject to
section 425.16 because the statute does not have retroactive
application; he was denied the right to engage in meaningful
discovery to meet the constitutional requirement of
establishing actual malice and to meet the standard
of proof imposed by the statute; and, with knowledge
of the terms of the civil compromise, Rodriguez could
not have printed in good faith the language in the mailer
that Robertson was fined for running an illegal business
out of his home.
Defendants argue they were entitled to an award equalling
their entire attorney fees and costs because the statute
does not limit a prevailing defendant's recovery to
reasonable attorney fees.
Discussion
1. Background of section 425.16.
The purpose underlying section 425.16 is set forth in
the statute, which states: "(a) The Legislature
finds and declares that there has been a disturbing
increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances.
The Legislature finds and declares that it is in the
public interest to encourage continued participation
in matters of public significance, and that this participation
should not be chilled through abuse of the judicial
process." (section 425.16, subd. (a.) {Page 36
Cal.App.4th 355}
To meet this concern, the statute provides that a cause
of action arising from a person's exercise of the constitutional
rights of petition or free speech in connection with
a public issue is subject to a special motion to strike,
unless it is determined the plaintiff has established
a probability of prevailing on the claim. (section 425.16,
subd. (b).) That determination is made on the basis
of the pleadings, as well as supporting and opposing
affidavits stating the facts upon which the liability
or defense is based. (section 425.16, subd. (b).) Once
it has been determined there is a probability the plaintiff
will prevail, that determination is inadmissible at
any later stage of the case and does not affect the
applicable burden or degree of proof. (section 425.16,
subd. (b.)
Thus, section 425.16 is analogous to other statutes
requiring the plaintiff to make a threshold showing,
which are aimed at eliminating meritless litigation
at an early stage. (See Wilcox v. Superior Court (1994)
27 Cal.App.4th 809, 823-824 [33 Cal.Rptr.2d 446].)
One such statute is section 425.13, which bars inclusion
of a punitive damages claim in certain actions against
health care providers unless the plaintiff first demonstrates
a "substantial probability" plaintiff "will
prevail" on the claim. (College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 709 [34 Cal.Rptr.2d
898, 882 P.2d 894]; Looney v. Superior Court (1993)
16 Cal.App.4th 521, 537 [20 Cal.Rptr.2d 182].) Similarly,
section 425.14 precludes the filing of a claim for punitive
damages against a religious corporation unless the plaintiff
can demonstrate the existence of sufficient evidence
to establish a prima facie right to recover punitive
damages, that is, sufficient evidence to permit the
claim to go to a jury under the clear and convincing
standard. (Rowe v. Superior Court (1993) 15 Cal.App.4th
1711, 1734-1735 [19 Cal.Rptr.2d 625].) Also, Civil Code
section 1714.10 bars the assertion of a cause of action
against an attorney for a civil conspiracy with a client
unless the trial court determines there is a "reasonable
probability" the plaintiff will prevail. (Civ.
Code, section 1714.10, subd. (a); Hung v. Wang (1992)
8 Cal.App.4th 908, 929 [11 Cal.Rptr.2d 113].)
Hung explained the trial court's role in scrutinizing
a proposed claim under Civil Code section 1714.10. The
trial court cannot weigh the evidence. "Whether
or not the evidence is in conflict, if the [plaintiff]
has presented a sufficient pleading and has presented
evidence showing that a prima facie case will be established
at trial, the trial court must grant the petition."
(Hung v. Wang, supra, 8 Cal.App.4th at pp. 933-934.)
This test avoids infringing the right to a jury trial.
(Id., at p. 934.)
The Hung test, calling for a prima facie showing by
the plaintiff, has been extended to evaluation of claims
pursuant to section 425.16. (Wilcox v. {Page 36 Cal.App.4th
356}Superior Court, supra, 27 Cal.App.4th at pp. 823-825;
Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 744-746
[36 Cal.Rptr.2d 687].) fn. 3 2. Section 425.16 applies
to causes of action which accrued before its effective
date.
[1] Robertson contends section 425.16 is inapplicable
to his libel claim because the cause of action arose
in October 1992, the complaint was filed in November
1992, and the statute's effective date was January 1,
1993.
The argument is meritless. Section 425.16, a procedural
statute, is being applied prospectively to an existing
cause of action.
Section 3, stating "[n]o part of [the Code of Civil
Procedure] is retroactive, unless expressly so declared,"
reflects the common understanding that legislative provisions
are presumed to operate prospectively. (Evangelatos
v. Superior Court (1988) 44 Cal.3d 1188, 1207-1208 [246
Cal.Rptr. 629, 753 P.2d 585].)
A statute does not operate retroactively merely because
some of the facts or conditions upon which its application
depends came into existence prior to its enactment.
(Burks v. Poppy Construction Co. (1962) 57 Cal.2d 463,
474 [20 Cal.Rptr. 609, 370 P.2d 313].) The issue of
retroactivity requires us to consider "whether
the Legislature (1) has merely effected a change in
the conduct of trials, which should routinely apply
to this trial, or (2) has changed the legal consequences
of past conduct by imposing new or different liabilities
based upon such conduct. (Tapia v. Superior Court [(1991)
53 Cal.3d 282,] 291 [279 Cal.Rptr. 592, 807 P.2d 434].)
If the latter is the case, we must consider also whether
the Legislature intended retroactive application and,
if so, whether it could properly make it retroactive."
(ARA Living Centers - Pacific, Inc. v. Superior Court
(1993) 18 Cal.App.4th 1556, 1563 [23 Cal.Rptr.2d 224],
italics added.)
Section 425.16 does not change the legal effect of past
conduct. It merely is a procedural screening mechanism
for determining whether a plaintiff can demonstrate
sufficient facts to establish a prima facie case to
permit the matter to go to a trier of fact. (Wilcox
v. Superior Court, supra, 27 {Page 36 Cal.App.4th 357}Cal.App.4th
at p. 824.) Therefore, the statute is applicable to
a cause of action which arose before its effective date.
3. Robertson had adequate discovery.
[2] Preliminarily, Robertson's argument he was denied
the right to engage in meaningful discovery is meritless
because he did not move for a continuance for that purpose.
Section 425.16, subdivision (g), states in relevant
part: "All discovery proceedings in the action
shall be stayed upon the filing of a notice of motion
made pursuant to this section.... The stay of discovery
shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion
and for good cause shown, may order that specified discovery
be conducted notwithstanding this subdivision."
(Italics added.)
Robertson did not file a noticed motion to conduct additional
discovery. Instead, he merely asserted in his opposing
declaration he required more time to ascertain the facts
and had not yet taken the depositions of councilmen
Cluck, Graffio and Silva. In view of Robertson's failure
to comply with section 425.16, subdivision (g), the
trial court did not abuse its discretion in denying
a continuance.
Moreover, Robertson obtained adequate discovery prior
to the defendants' motion to strike. As indicated, he
had taken the depositions of Rodriguez and Joseph. The
only alleged libelous statement now in issue was made
by Rodriguez, who conferred with Joseph before issuing
the statement. Thus, Robertson had available to him
the deposition testimony of the relevant individuals.
4. The trial court properly struck Robertson's cause
of action against Rodriguez for libel.
[3a] Analysis of the pleadings and affidavits pursuant
to the applicable standard discloses the trial court
properly concluded Robertson could not establish a probability
of prevailing on the claim. (section 425.16, subd. (b).)
a. General principles of libel law require independent
appellate review.
[4] In the landmark decision of New York Times Co. v.
Sullivan (1964) 376 U.S. 254 [11 L.Ed.2d 686, 84 S.Ct.
710, 95 A.L.R.2d 1412], the Supreme Court held a public
official may not recover damages for a {Page 36 Cal.App.4th
358}defamatory falsehood relating to official conduct
unless it is proved the statement was made with "
'actual malice,' " that is, with knowledge it was
false or with reckless disregard of whether it was false.
(Id., at pp. 279-280 [11 L.Ed.2d at p. 706].) New York
Times Co. further declared that in order to ensure libel
judgments do not run afoul of constitutional principles,
the appellate court must independently examine the statements
in issue and the circumstances under which they are
made against the backdrop of the entire record. (Id.,
at p. 285 [11 L.Ed.2d at p. 709]; McCoy v. Hearst Corp.
(1986) 42 Cal.3d 835, 841 [231 Cal.Rptr. 518, 727 P.2d
711].)
This principle of independent review was reaffirmed
in Bose Corp. v. Consumers Union of U.S., Inc. (1984)
466 U.S. 485 [80 L.Ed.2d 502, 104 S.Ct. 1949]. "The
requirement of independent appellate review reiterated
in New York Times Co. v. Sullivan is a rule of federal
constitutional law.... It reflects a deeply held conviction
that judges ... must exercise such review in order to
preserve the precious liberties established and ordained
by the Constitution. The question whether the evidence
in the record in a defamation case is of the convincing
clarity required to strip the utterance of First Amendment
protection is not merely a question for the trier of
fact. Judges, as expositors of the Constitution, must
independently decide whether the evidence in the record
is sufficient to cross the constitutional threshold
that bars the entry of any judgment that is not supported
by clear and convincing proof of 'actual malice.' "
(Id., at pp. 510-511 [80 L.Ed.2d at p. 523], italics
added.)
These principles direct us to conduct an independent
review of the entire record to determine whether Robertson
made a sufficient prima facie showing of facts which
would sustain a favorable libel judgment under the clear
and convincing evidence standard.
b. Robertson did not make an adequate prima facie showing
of actual malice.
Robertson does not dispute he is a public figure or
that he is required to show actual malice. However,
he avers that with knowledge of the terms of the civil
compromise, Rodriguez could not have printed in good
faith the language in the mailer that Robertson was
fined for running an illegal business out of his home.
In approaching the issue of whether Robertson demonstrated
the existence of a prima facie case for libel, we bear
in mind the higher clear and convincing standard of
proof. (See Looney v. Superior Court, supra, 16 Cal.App.4th
at pp. 538-539.) {Page 36 Cal.App.4th 359}
[5] We further recognize that section 425.16, by requiring
scrutiny of the supporting and opposing affidavits stating
the facts upon which the liability or defense is based,
calls upon the plaintiff to meet the defendant's constitutional
defenses, such as lack of actual malice. (section 425.16,
subd. (b); Wilcox v. Superior Court, supra, 27 Cal.App.4th
at p. 824; New York Times Co. v. Sullivan supra, 376
U.S. at pp. 279-280 [11 L.Ed.2d at pp. 706-707]; 5 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts, section 534,
p. 622.) fn. 4 This burden is "met in the same
manner the plaintiff meets the burden of demonstrating
the merits of its causes of action: by showing the defendant's
purported constitutional defenses are not applicable
to the case as a matter of law or by a prima facie showing
of facts which, if accepted by the trier of fact, would
negate such defenses." (Wilcox, supra, at p. 824.)
[3b] Turning to the record, Rodriguez's declaration
stated he became aware the City had brought a criminal
prosecution against Robertson for running a business
out of his home in the City in violation of City zoning
laws. He asked Joseph, the city manager and city clerk,
about the prosecution. Joseph advised Rodriguez that
Robertson had paid the City $1,000 and had agreed to
move his business outside the City. Joseph also gave
Rodriguez a copy of the $1,000 cashier's check from
Robertson to the City as well as a copy of the compromise
agreement.
Given Joseph's statements to Rodriguez, which are uncontroverted,
Robertson failed to make a prima facie showing Rodriguez
accused him of running an illegal home business with
actual malice. As indicated, actual malice denotes either
knowledge the publication was false or a reckless disregard
of whether it was false. (New York Times Co. v. Sullivan,
supra, 376 U.S. at pp. 279-280 [11 L.Ed.2d at pp. 706-707].)
In view of what Rodriguez learned from Joseph regarding
the matter, the mere fact the compromise agreement contained
a boilerplate denial of wrongdoing did not show Rodriguez
acted with actual malice in accusing Robertson of running
an illegal home business.
The remaining issue is whether Rodriguez improperly
asserted Robertson had been "fined" by the
City. Robertson contends it is clear from the civil
compromise there was no conviction of any kind against
either him or EEI, and therefore the statement is verifiably
false. Again, Robertson relies on the civil compromise,
which recited the $1,000 payment constituted "reimbursement
[to the City] of investigation and enforcement costs
in connection with this action." {Page 36 Cal.App.4th
360}
The argument is unavailing because Robertson's definition
of a fine is overly narrow in that fines are not limited
to criminal cases. Webster's Third New International
Dictionary (1986) page 852 defines fine, inter alia,
as "a forfeiture or penalty paid to an injured
party in a civil action." (Italics added.)
Consequently, because a fine may be construed as a civil
penalty, Robertson failed to make a prima facie showing
Rodriguez acted with actual malice in stating Robertson
had been fined.
In sum, our independent review of the entire record
leads us to conclude Robertson failed to make a prima
facie showing of facts to sustain a favorable libel
judgment under the clear and convincing evidence standard.
Because Robertson failed to establish a probability
of prevailing on the claim (section 425.16, subd. (b)),
the trial court properly granted the motion to strike.
5. The trial court had jurisdiction to entertain defendants'
motion for attorney fees.
Although Robertson's notice of appeal refers to the
attorney fees award, his brief lacks any contention
in that regard. However, we address the jurisdictional
issue which was raised by Robertson below.
As indicated, Robertson argued in the trial court that
the trial court lacked jurisdiction to rule on defendants'
motion for attorney fees due to the pendency of Robertson's
appeal from the order granting defendants' motion to
strike. He relied upon section 916, subdivision (a),
which states that with certain exceptions, the perfecting
of an appeal stays proceedings in the trial court upon
the judgment or order appealed from.
[6] The trial court properly concluded it had jurisdiction
to proceed because the trial court "retains jurisdiction
to entertain a motion for attorney fees despite an appeal[.]"
(Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1639 [7
Cal.Rptr.2d 762].)
Moreover, the March 29, 1993, notice of appeal was premature
in that final judgment had not yet been entered. (Cal.
Rules of Court, rule 2(c).) It is a perfected appeal
which stays proceedings in the trial court. (section
916, subd. (a).)
6. Section 425.16 limits a prevailing party's recovery
to reasonable attorney fees, irrespective of whether
the prevailing party is a plaintiff or a defendant.
[7] Defendants contend the trial court erred in awarding
only $15,000 rather than their incurred attorney fees
and costs of $23,847. {Page 36 Cal.App.4th 361}
Their argument rests on section 425.16, subdivision
(c), which states: "In any action ..., a prevailing
defendant on a special motion to strike shall be entitled
to recover his or her attorney's fees and costs. If
the court finds that a special motion to strike is frivolous
or is solely intended to cause unnecessary delay, the
court shall award costs and reasonable attorney's fees
to a plaintiff prevailing on the motion, pursuant to
Section 128.5." (Italics added.)
Defendants argue that while the statute limits a prevailing
plaintiff's recovery to reasonable attorney fees and
costs, it contains no such limitation on the right of
a prevailing defendant.
We are well aware of the axiom that when the drafters
of a statute have employed a term in one place and omitted
it in another, it should not be inferred where it has
been excluded. (People v. Woodhead (1987) 43 Cal.3d
1002, 1010 [239 Cal.Rptr. 656, 741 P.2d 154].)
However, the rules of statutory construction also require
courts to construe a statute to promote its purpose,
render it reasonable, and avoid absurd consequences.
(Brown v. Superior Court (1984) 37 Cal.3d 477, 484-485
[208 Cal.Rptr. 724, 691 P.2d 272].) It is the duty of
the courts to construe statutes so as to avoid a ludicrous
result if at all possible. (Landrum v. Superior Court
(1981) 30 Cal.3d 1, 9 [177 Cal.Rptr. 325, 634 P.2d 352].)
If section 425.16 were interpreted to prevent a trial
court from awarding attorney fees to a prevailing defendant
in an amount the court deems reasonable and simply requires
the trial court to award the amount requested, the statute
would mandate the court to make what might be an unreasonable
award. We cannot ascribe such an intention to the Legislature.
Further, if a trial court were bound by the amount of
attorney fees sought by a prevailing defendant under
section 425.16 and had no discretion to award a lesser
amount, the potential for abuse would be extraordinary.
The trial court cannot be placed in the position of
having to acquiesce in any amount sought by a prevailing
defendant, no matter how outrageous. The trial court's
role is not merely to rubber stamp the defendant's request,
but to ascertain whether the amount sought is reasonable.
Defendants have not cited any statute which strips the
trial court of discretion to determine what constitutes
a reasonable fee award, nor do we know of any. To the
contrary, the codes are replete with provisions for
reasonable attorney fees. (See, e.g., sections 128.5
[sanctions]; 405.38 [lis pendens]; 437c, subd. (i) [summary
judgment]; 1038 [government tort claims]; Civ. Code,
section 1717 [contracts]; Fam. Code, section 3557 [support
proceedings]; Bus. & Prof. Code, section 809.9 [medical
peer review].) {Page 36 Cal.App.4th 362}
We readily conclude section 425.16 similarly authorizes
an award of reasonable attorney fees to the prevailing
party, irrespective of whether the prevailing party
is the plaintiff or the defendant. The right of prevailing
defendants to recover their reasonable attorney fees
under section 425.16 adequately compensates them for
the expense of responding to a baseless lawsuit.
Whereas we do not view the amount requested by defendants
in the instant case as excessive, the trial court was
not bound by the amount sought by defendants and had
discretion to award them a lesser sum. Defendants have
not shown the trial court abused its discretion in awarding
them $15,000. The attorney fees award therefore must
be upheld.
Disposition
The judgment is affirmed. Defendants to recover costs
on appeal.
Croskey, J., and Luke, J., fn. * concurred.
FN *. Judge of the Los Angeles Superior Court
sitting under assignment by the Chairperson of the Judicial
Council.
FN 1. A claim arising from a person's exercise
of the right of free speech in connection with a public
issue is subject to a special motion to strike, unless
the trial court determines "... the plaintiff has
established that there is a probability that the plaintiff
will prevail on the claim." (Code Civ. Proc., section
425.16, subd. (b).)
All further statutory references are to the Code of
Civil Procedure, unless otherwise specified.
FN 2. The trial court erred in characterizing the
instant motion as one for summary judgment. The motion
contemplated by section 425.16 is a "special motion
to strike." (section 425.16, subd. (b).) However,
the misnomer was harmless and, as discussed below, the
trial court's decision was substantively correct. (DiAmico
v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19
[112 Cal.Rptr. 786, 520 P.2d 10].)
FN 3. Because Robertson does not challenge the
constitutionality of section 425.16, the issue is not
before us. (See Dixon v. Superior Court, supra, 30 Cal.App.4th
at p. 746, fn. 12.)
We note, however, it has been held that section 425.16
does not impair the right to a trial by jury because
the trial court does not weigh the evidence in ruling
on the motion, but merely determines whether a prima
facie showing has been made which would warrant the
claim going forward. (Dixon v. Superior Court, supra,
30 Cal.App.4th at p. 746; Wilcox v. Superior Court,
supra, 27 Cal.App.4th at pp. 823-825.)
FN 4. New York Times Co. held the First Amendment's
guarantees of freedom of speech and of the press, as
applied to the states by the Fourteenth Amendment, require
a defense of qualified privilege for criticism of official
conduct, and preclude a public official from prevailing
in a libel action against critics of his or her official
conduct absent proof of actual malice. (New York Times
Co. v. Sullivan, supra, 376 U.S. at pp. 267-283 [11
L.Ed.2d at pp. 698-708]; 5 Witkin, Summary of Cal. Law,
supra, section 534, p. 622.)
FN *. Judge of the Los Angeles Superior Court sitting
under assignment by the Chairperson of the Judicial
Council.
|
