Nelson v. Time Inc. CA2/4

Filed 3/11/14 Nelson v. Time Inc. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

REEVES NELSON, B245412

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC485194)
v.

TIME INC. et al.,

Defendants and Respondents.

APPEAL from an order and a judgment of the Superior Court of Los Angeles
County, Mary Ann Murphy, Judge. Affirmed in part, reversed in part.
Fink & Steinberg, Keith A. Fink, S. Keven Steinberg and Olaf J. Muller for
Plaintiff and Appellant.
O’Melveny & Myers, Daniel M. Petrocelli, Marc Feinstein, Madhu Pocha and
Jonathan Hacker for Defendants and Respondents.
 INTRODUCTION

In March 2012, Sports Illustrated published a highly critical expose´ of the
University of California at Los Angeles (UCLA) men’s basketball program. The article
purported to tell “a cautionary tale of how discipline problems and mistakes in judgment
can sabotage even a storied program,” attributing the team’s recent poor performance to
coach Ben Howland’s tolerance of misbehavior by a group of “talented but immature”
freshman players. The article characterized Reeves Nelson, who recently had been
dismissed from the team, as the “ringleader” of this group of young players, and it
described his alleged aggression towards and bullying of his teammates in great detail.
Following the article’s publication, Nelson sued Sports Illustrated’s publisher,
Time Inc. (Time), and journalist George Dohrmann, asserting that the article’s
description of his conduct was false and defamatory. Defendants filed a special motion
to strike under the anti-SLAPP (strategic lawsuit against public participation) statute,
Code of Civil Procedure section 425.16.1 Defendants contended that Nelson’s causes of
action arose from actions in furtherance of their rights of free speech, and that Nelson
could not demonstrate a likelihood of prevailing because he could not prove actual
malice. The trial court agreed and granted the motion to strike.
We reverse in part. Among other things, the article says that Nelson admitted
some of the misconduct it describes—an admission that Nelson denies. If a jury believes
Nelson did not make the statements attributed to him, it could conclude that defendants’
false attribution was made with knowledge of the falsity or reckless disregard for the
truth. Accordingly, Nelson has established a prima facie case of defamation and false
light, meeting his burden to defeat the anti-SLAPP motion as to those causes of action.

1
All subsequent undesignated statutory references are to the Code of Civil
Procedure.

2
 FACTUAL AND PROCEDURAL BACKGROUND

I. The Sports Illustrated Article: “Special Report”: “Not the UCLA Way”
In its March 5, 2012 issue, Sports Illustrated published an article written by
Dohrmann titled “Special Report”: “Not the UCLA Way” (the article). The article
reported that UCLA’s basketball team had begun “veering off the rails” after the 2007-
2008 season as team unity eroded and “the blocks of [John] Wooden’s Pyramid [came]
tumbling down.” The article reported that Sports Illustrated had spoken with more than a
dozen players and staff members from the past four UCLA teams who “portrayed the
program as having drifted from the UCLA way” because coach Ben Howland allowed an
influx of “talented but immature recruits to undermine team discipline and morale.
Fistfights broke out among teammates. Several players routinely used alcohol and drugs,
sometimes before practice. One player intentionally injured teammates but received no
punishment.” The team’s struggles, the article said, “tell a cautionary tale of the risks of
recruiting hyped players, the challenges of managing recalcitrant teenagers and the
consequences of letting discipline and accountability break down.”
Among the young players highlighted in the article was plaintiff Reeves Nelson,
who joined the team in 2009. Because the article’s description of Nelson’s conduct
during the years he played basketball at UCLA is at the heart of this defamation action,
we quote it at length:
“In the fall of 2009, during a routine practice drill, UCLA freshman Mike Moser
ran through a team of defenders and was suddenly hit in the chest by a forearm and
shoulder that nearly knocked him to the ground. It was the second time Moser had been
the victim of an illegal screen from fellow freshman Reeves Nelson, and he’d had
enough. Moser told Nelson that if he did it again he would punch him in the face. The
drill was reset, and in the words of one player who was present, ‘Mike comes across and
Reeves just hits him again. Mike wasn’t a guy who would back down. He squared up
and they went at [it].’

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 “Fights in practice happen; competitiveness gets the better of players. But
according to team members, UCLA had an alarming number of those to begin the season.
A year after bringing in the Baby Bruins [Jrue Holiday, Malcolm Lee, Jerime Anderson,
Drew Gordon and J’mison Morgan], Howland had added five more freshmen, all
frontcourt players: Moser, Nelson, Tyler Honeycutt, Brendan Lane and Anthony
Stover. . . . With so many gifted young athletes on the team, a dustup or two could be
expected in the competition for playing time. But when does a fight signal larger issues?
“Is it when the scuffle occurs away from practice, like the one between Nelson and
Gordon at a teammate’s apartment? Gordon ended up with a black eye. Is it when
players are involved in multiple fights? Gordon and Moser had fought previously during
a workout. Is it when a player says Howland made light of one of his players receiving a
punch to the face? After what happened between Moser and Nelson, one player says that
Howland jokingly remarked to him that Howland had been wanting to hit Nelson for
weeks. (When asked about the incident, Howland said, ‘I have never so much as
contemplated striking a player in my 30 years as a coach. To think otherwise is
ridiculous.’) [¶] . . .
“As in the previous season, the problems started almost immediately. . . . Nelson
and Stover . . . partnered with Gordon, Anderson and Morgan to form a crew that would
further erode team discipline and unity. [¶] . . . [¶]
“Nelson was the ringleader among the freshmen. Because of his toughness, the
6’8” forward from Modesto, Calif., was called ‘the prototypical Ben Howland player’ by
ESPN.com when he signed with the Bruins, but teammates came away with a different
impression of him after only a few practices. Nelson could be a nice guy, but he had
what one player calls ‘this crazy side.’
“Nelson often reacted to hard fouls or calls against him in practice by committing
violent acts against teammates. He did not deny to [Sports Illustrated] that he would stalk
his targets, even running across the court, away from a play, to hit someone.
“Once, Nelson got tangled up with forward James Keefe while going for a
rebound. Keefe was playing with a surgically repaired left shoulder, and Nelson pulled

4
down suddenly on Keefe’s left arm. That reinjured Keefe’s shoulder, and he missed
several weeks. Later in the season Nelson hacked walk-on Alex Schrempf, the son of
former NBA player Detlef Schrempf, from behind on a breakaway, knocking Schrempf
to the ground. The back injury Schrempf suffered sidelined him for months. In another
workout Nelson threw an elbow at Lane after the whistle, injuring Lane’s ribs.
“Walk-on Tyler Trapani was another Nelson victim. After Trapani took a charge
that negated a Nelson dunk, Nelson went out of his way to step on Trapani’s chest as he
lay on the ground. Trapani is John Wooden’s great-grandson. (Nelson confirmed all
these incidents to [Sports Illustrated] and expressed his regret, saying, ‘On all that stuff, I
have no trouble admitting that I lost control of my emotions sometimes. I take
responsibility for my actions. I’m really just trying to learn from the mistakes I made on
all levels.’)
“After each of the incidents, Howland looked the other way. One team member
says he asked Howland after a practice why he wasn’t punishing Nelson, to which he said
Howland responded, ‘He’s producing.’
“But at what cost? Nelson was hardly the player around whom to build a team.
He was a classic bully, targeting teammates who weren’t as athletically gifted as he and
tormenting the support staff. At the end of practice, he would punt balls high up into the
stands at Pauley Pavilion, turn to the student managers and say, ‘Fetch.’ Nelson
frequently talked back to the assistant coaches. When they told him to stop, he would
remark, ‘That’s how Coach Howland talks to you.’
“Many players say Howland degraded his assistants, but only Nelson used that as
license to treat the assistants with disrespect. Donny Daniels, a member of Howland’s
staff since Howland arrived in Westwood, would leave after the season to take the same
job at Gonzaga. One player says that when he asked Daniels why he was departing,
Daniels kiddingly responded that if he had to coach Nelson for one more season, he
would kill himself. (Daniels, through his lawyer, denied making that statement.)

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 “Nelson showed Howland only slightly more respect. By his own admission, he
often ignored the head coach’s phone calls, and Howland resorted to calling one of
Nelson’s roommates, asking him to coax Nelson onto the line.
“When asked by [Sports Illustrated] why he didn’t discipline Nelson, Howland
said in a statement: ‘I firmly believe in the philosophy of giving all of my players the
chance to do things the right way. There have been challenges with some student-
athletes during my tenure here at UCLA, and we have utilized plenty of resources to help
them, the specifics of which very few people would know anything about.’
“But Nelson’s behavior—and Howland’s tolerance of it—undercut team morale.
Combined with the partying of the other freshmen and the three sophomores, it torpedoed
the season. UCLA won four of five against weak competition to open the year but then
lost six of its next seven . . . . [¶] . . . [¶]
“When [Howland announced that none of the players would be allowed to go out
on a ‘party bus’ players had reserved for New Year’s Eve], some underclassmen . . .
conclud[ed] that they had an informant in their midst. Nelson thought that Honeycutt,
one of his roommates, was the rat, and he got his revenge. A short time later, Nelson
returned home from a night of partying, piled Honeycutt’s clothes on Honeycutt’s bed,
and then urinated on the clothes and flipped the bed over. When asked by [Sports
Illustrated] about the incident, Nelson said, ‘I would dispute that that is exactly what
happened, but I understand people would say that is what happened. But I think, most of
all, you should know that Tyler and I are still friends.’
“It didn’t appear that Nelson was punished for the incident, but players say that
Honeycutt was given his own single dorm room. (Through his agent, Honeycutt declined
to comment.) [¶] . . . [¶]
“From the first practice [of the 2010-2011 season], Nelson’s treatment of [guard
Matt] Carlino was a divisive issue. Carlino suffered a concussion during the preseason
that caused him to miss the first three games. Nelson ridiculed Carlino for letting the
injury sideline him. He told Carlino he didn’t belong at UCLA and wasn’t any good. He
would yell at Carlino to leave the locker room, calling him ‘concussion boy.’ When

6
Carlino returned to workouts, Nelson would go out of his way to set a screen on Carlino
so he could hit him. Eventually, players say, Carlino dreaded practice. It was of little
surprise when he left UCLA midway through the season and transferred to BYU.
“After Carlino left, there was a team meeting at which Howland said he couldn’t
respect a quitter. ‘But everyone knew why Matt left,’ says one player. ‘He didn’t want
to keep sitting on the bench, but most of all he didn’t want to be around Reeves
anymore. . . .’ [¶] . . .
“Early in 2011, after the conference season began, players noticed a subtle shift in
how Howland handled the mercurial Nelson. ‘[Howland] always gave Reeves the benefit
of the doubt on foul calls in practice so Reeves wouldn’t lose it and be even more
disruptive,’ says one team member. ‘But when Reeves started going up against [forwards
David and Travis Wear], Coach would call it straight. That got to Reeves. He started
yelling more at Coach, showing him up.’
“Nelson finished his sophomore season as the team’s leading scorer (13.9) and
rebounder (9.1) and was selected first team All-Pac-10. He was a preseason first-team
pick last fall, but he lasted only seven games.
“On Nov. 14, Howland suspended Nelson for being late to a team meeting and
exhibiting other behavior that was deemed insubordinate. Howland reinstated Nelson
two days later, but on Nov. 19 Nelson missed a team flight to Hawaii. Howland
suspended him again on Dec. 6, a move that was roundly criticized by the media for
being inadequate. Three days later, Howland dismissed Nelson from the program.
“Nelson’s mother, Sheila, told the Los Angeles Times that she wished Howland
had been stricter with her son earlier in his career. ‘I think what my mom was saying was
that when I went to college I was just 17,’ Nelson, who is back in Modesto training for
the NBA draft, told [Sports Illustrated]. ‘I’m not trying to make excuses for what I did,
but I got into some weird behavior patterns, and I think my mom was saying that if
instead of one big punishment at the end, what if there had been smaller punishments
along the way.’ In a December interview with the Los Angeles Times, Howland
acknowledged that he had made mistakes with Nelson.”

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II. The Present Action
Nelson filed the present action against Dohrmann and Time on May 23, 2012,
alleging causes of action for defamation, false light, and intentional infliction of
emotional distress. The complaint alleges that the article’s characterization of Nelson
and its recounting of specific instances of Nelson’s misbehavior were false, as confirmed
by declarations of 18 current or former UCLA basketball players. Further, defendants
“twisted around quotes from Plaintiff Nelson to Defendant Dohrmann as well as four-
month-old quotes given by Plaintiff’s mother Sheila to the Los Angeles Times to make it
appear as if both confirmed the article’s contentions about Plaintiff.” Defendants “failed
to contact numerous obvious witnesses who could have confirmed or disproved the
allegations in the article” and “published the false characterizations and recounting of
events about Plaintiff when there were obvious reasons to doubt the veracity of their
informants and/or accuracy of their informants’ reports.” Thus, defendants “published
the article either with knowledge that it was false and defamatory” or “with reckless
disregard for its obvious falsity and defamatory nature.”

III. Defendants’ Special Motion to Strike
A. Motion
Defendants filed a special motion to strike under the anti-SLAPP statute on
August 13, 2012. Defendants asserted that all Nelson’s causes of action arose from
statements published in the article and, thus, constituted acts “in furtherance of the
person’s right of petition or free speech under the United States Constitution or the
California Constitution in connection with a public issue” within the meaning of the anti-
SLAPP statute. (§ 425.16, subd. (b)(1).) Further, defendants contended Nelson could not
demonstrate through competent, admissible evidence a reasonable probability that he
would prevail on the merits. To establish a cause of action for defamation, defendants
said, Nelson must establish “‘a false and unprivileged publication that exposes [him] “to
hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or

8
which has a tendency to injur[e] him in his occupation.”’” Where a defamation plaintiff
is a public figure or a limited public figure, the Constitution also requires proof of actual
malice—i.e., proof that defendant made the statement with knowledge that it was false or
with reckless disregard for the truth.
Defendants urged that, as a player for a high profile college basketball team,
Nelson was a limited purpose public figure. Further, relying on the declarations of
Dohrmann and his editor, Bruce Schecter, defendants asserted that Nelson could not
demonstrate actual malice because they had substantial support for the statements and
believed them to be true.

1. Declaration of Bruce Schecter
Schecter is an executive editor for Sports Illustrated and supervised Dohrmann’s
work on the article. He said that during the investigation and writing of the article, he
and Dohrmann had frequent conversations about Dohrmann’s investigation. Typically,
immediately after he finished an interview, Dohrmann “called me and we went over the
identity and background of the source, what was discussed, whether the source was
confidential, other substantiation for the facts provided by the source, new leads, or other
avenues for further investigation.” Schecter understood that many of the sources wished
to remain anonymous because of their relationship with UCLA or for other reasons.
Schecter said that as part of the writing and editing process, he and Dohrmann
“went over the Article line-by-line, and reviewed the support for all the statements in the
Article relating to Reeves Nelson.” Before the article was published, Schecter “became
very familiar with the identity, nature and number of the sources for those statements.”
Schecter also supervised the fact-checking of the article. As part of the fact-checking,
“[Sports Illustrated] compiled numerous news articles from other publications referring to
Nelson, which reported that he had a history of disciplinary problems. These articles
included reports that Nelson was suspended from his high school basketball team for
poor behavior. . . . They also included reports that Nelson had twice been suspended and
ultimately dismissed from the UCLA basketball team for insubordinate conduct. . . . In

9
addition, consistent with standard practice at [Sports Illustrated], an experienced fact-
checker confirmed other facts in the Article by, for example, consulting publicly
available sources of information. I was in regular communication with the fact-checker
during this process, and I believe that the Article was carefully and thoroughly reviewed
for accuracy and that each fact was checked.”
Schecter said Dohrmann reported that he had spoken to Nelson about the article
and had reviewed with him all of the parts of the article discussing Nelson’s conduct.
Nelson “confirmed all those incidents and expressed his regret.” Further, Schecter and
Dohrmann discussed “that any person or entity portrayed negatively in the Article should
be contacted if possible and given an opportunity to comment. I understood that
consistent with that practice, which is intended to promote accuracy and balance in our
reporting, [Dohrmann] contacted or tried to contact Nelson, Howland, UCLA Athletic
Director Dan Guerrero, and all or virtually all of the present or former UCLA players
mentioned in the Article. I heard from [Dohrmann] that he had to work hard to obtain
any comments from UCLA. [Dohrmann] told me that he communicated the content of
the Article in detail to UCLA’s Director of Athletic Communications and, only after
repeated requests, the University provided written comments from Howland but refused
to make Howland, Guerrero or any current UCLA players available to speak. The Article
contains comments we received from Nelson and Howland.”

2. Declaration of George Dohrmann
Dohrmann said that the information in the article was obtained largely from
interviews of 13 former UCLA players and staff members from the past four UCLA
teams, all of whom played for or worked with Howland, and most of whom knew Nelson.
He also spoke to others who knew Nelson, Nelson himself, and the UCLA Director of
Athletic Communications.
Dohrmann conducted “all but a few of the interviews by phone,” and attached his
cell phone records showing calls made from November 21, 2011, to March 21, 2012.
Calls unrelated to the UCLA story and other information were redacted “for privacy

10
reasons or to protect the identity of confidential sources.” Dohrmann said the phone logs
show more than 150 telephone calls, totaling more than 20 hours, with third parties in
connection with the article, and said he spoke to many sources multiple times. The
“overwhelming majority of [Dohrmann’s] sources for the Article” spoke with Dohrmann
on condition of confidentiality.
Dohrmann said that each of the allegedly defamatory statements was confirmed by
multiple confidential sources, and he included a list of the number (but not the identities)
of his confidential sources for each statement. Dohrmann also said that he tried to
contact players Tyler Honeycutt, Drew Gordon, J’mison Morgan, Malcolm Lee, Jerime
Anderson, Josh Smith, and Anthony Stover; in each case, a spokesperson said the player
would not comment for the article. Further, “[a]lthough it is accurate that I did not seek
to speak to nine players who submitted declarations, I believed it was unnecessary or
would have been futile. I did not feel it was necessary to speak to seven of the players
[who submitted declarations attached to the complaint]—Larry Drew, Jr., Kenny Jones,
Lazeric Jones, Tyler Lamb, Norma[n] Powell, David Wear and Travis Wear—because
they did not play with Nelson during the 2009-2010 season, which is when nearly all the
incidents relating to Nelson that are reported in the Article occurred. Although Tyler
Trapani and Matt DeMarcus, the other two players with whom I did not seek to speak,
played with Nelson during the 2009-10 season, I did not feel it was necessary to speak to
them because I already had so many reliable sources for those incidents. In addition, I
did not seek to speak to these nine players because there is nothing negative in the Article
about any of them and because I believe it would have been futile to ask UCLA for
permission to speak to them given that it had declined my requests to speak to other
current athletes about the Article.”
Dohrmann also said that he spoke to Nelson by telephone on February 24, 2012.
During that call, “I asked if I could tell him what we were writing about him, and he said
I could; and I told him to speak up if something I told him was wrong, and he said he
would do so. I mentioned the fights with Moser and Gordon and how players said
Nelson got upset, stalked his teammates and injured a number of them, and I named the

11
players the Article asserts he injured. I also described the incident in which Nelson
stepped on Trapani’s chest. Nelson confirmed all those incidents and expressed his
regret: ‘On all of that stuff, I have no trouble admitting that I lost control of my emotions
sometimes.’ He also stated, ‘I take responsibility for my actions. I’m really just trying to
learn from the mistakes I made on all levels.’ The Article includes those comments. I
also described to Nelson what we were going to write about the incident involving his
urinating on teammate Tyler Honeycutt’s bed, and he responded, ‘I would dispute that
that is exactly what happened but I understand people would say that is what happened.
But I think, most of all, you should know that Tyler and I are still friends.’ The Article
includes that comment. I also told him what we were writing about his treatment of
Carlino, and he confirmed it. In addition, during the call, I described other information
about him in the Article, and apart from disputing the precise characterization of the
peeing incident, Nelson did not deny any of the information in the Article that I described
to him. Immediately after the call with Nelson ended, I called [my editor] to let him
know what had happened during the call.”
Dohrmann concluded: “When the Article was published, I believed everything
reported in the Article was truthful and substantiated. I did not doubt the accuracy of any
statement in the Article. The Article is a truthful account of the situation at UCLA, and it
notes both the team’s laudatory traditions and its current difficulties. I had heavily
researched the Article and reviewed all of the sources with my supervising editor. I
relied on eight players and two team staff members for the descriptions of Nelson,
including mostly eyewitnesses. I had multiple sources for all but one of the statements in
the Article relating to Nelson, and the facts my sources provided about Nelson were
consistent and corroborative with one another and with published reports of other
behavior problems by Nelson. I did not observe any signs of bias against Nelson among
the sources that led me to believe any source was not credible. Furthermore, Nelson
confirmed the incidents I described to him from the Article, and Howland did not deny
any of the incidents relating to Nelson’s conduct.”

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 B. Nelson’s Opposition
In opposition to the anti-SLAPP motion, Nelson urged that he was not a limited
purpose public figure; he also contended that the article was false, defamatory, and
published with actual malice. In support, he submitted his own declaration in which he
addressed and specifically denied each of the events described in the article.2 He also

2
With regard to these incidents, Nelson declared as follows:
● Intentionally hitting Mike Moser in the chest during practice — “This is
false. I have never fought with Mike Moser, not during practice or otherwise, nor did I
commit an ‘illegal screen’ on him during practice, nor did we threaten to attack each
other during practice or otherwise. We have been and remain good friends.”
● Fight with Drew Gordon at a teammate’s apartment — “This is false. I
have never fought with Drew Gordon, much less given him a black eye. Gordon has
been and remains a close friend of mine since middle school.”
● Reinjuring James Keefe’s surgically-repaired shoulder — “This is false. I
never intentionally ‘pulled down suddenly’ on Keefe’s arm during practice, re-injuring
his post-surgery shoulder, nor did I ever intentionally injure him in any fashion, not
during practice or otherwise. James Keefe . . . and I remain good friends.”
● Intentionally “hacking” Alex Schrempf, injuring his back, and sidelining
him for several months — “This is false. I never hacked at Schrempf from behind during
practice, let alone assaulted him in such fashion that his back was injured for months.
Schrempf was and remained my roommate during my freshman year [at] U.C.L.A., and
he was and remains a close personal friend of mine.”
● Intentionally elbowing Brendan Lane — “This is false. I never threw an
elbow at Lane during practice, injuring Lane’s ribs, nor did I attack or assault him in any
fashion during practice.”
● Intentionally stomping on Tyler Trapani’s chest — “This is false. I never
went out of my way to step on Trapani’s chest as described in Defendants’ article. We
did get tangled up during a three-on-two practice drill. In this drill, Trapani took a charge
on me, meaning he intentionally positioned himself beneath me on the court. As a
consequence, I did have contact with him, but I did not go ‘out of my way to step on
Trapani’s chest as he lay on the ground.’”
● Urinating on Tyler Honeycutt’s bed and clothes — “This is false. I never
urinated on Honeycutt’s or any teammate’s bed, not for ‘revenge’ or for any reason. I did
play a minor college prank on Honeycutt by flipping his mattress and putting some baby
powder, candy, and silly string on it. I did not ruin his mattress, sheets, and clothing in
the demeaning fashion described in Defendants’ article. I have known Honeycutt since I
was fifteen years old. Honeycutt and I have been and remain good friends. I very much
doubt that we would remain friends if I did what Defendants wrote I did to him.”
(Fn. continued.)

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said that he briefly spoke to Dohrmann before the article was published but did not
confirm any of the events described in the article. Indeed, he said, Dohrmann “spent the
bulk of our brief telephone call asking me to comment about various portions of his to-
be-published article, which portions were unrelated to me and mostly focused on Coach
Howland. . . . During my entire conversation with Dohrmann, he brought up none of the
specific instances of my alleged bullying and violence against my teammates and team
staff save . . . one[.]” (Nelson’s declaration testimony regarding his conversation with
Dohrmann is described in greater detail below.)
In opposition to the anti-SLAPP motion, Nelson also submitted the 18 declarations
of his former teammates attached to his complaint. Sixteen of the players said they had
not spoken with Dohrmann or anyone at Sports Illustrated about the article; the other two

● Honeycutt’s move to a new dorm room — “According to Defendants’
article, Honeycutt was so offended by my demeaning behavior that he reportedly
requested and received his own dorm room away from me because of the New Years’
Eve incident . . . . This is false. Honeycutt never requested to be in his own dorm room
away from me, not because I did anything to his bed or otherwise.”
● Attacking and insulting Matt Carlino — “This is false. I myself have had
numerous concussions, so I know how tough such injuries can be. Having received
concussions, I know that the team’s medical staff decided when Carlino would be ready
to return to active playing, as opposed to Carlino himself as implied in Defendants’
article. As such, it would make no sense for me to ridicule him for missing games
because of his injury. I never went ‘out of my way’ to set a screen on Carlino to hit him,
and I never went out of my way to attack Carlino in any fashion. Based on my
conversations with Carlino as well as my observations and first-hand knowledge of his
playing time during games, I understood from Carlino that he transferred from U.C.L.A.
because he was third on the depth chart behind teammates Lazeric Jones and Jerime
Anderson. As such, Carlino left U.C.L.A. because he effectively received little or no
playing time by the coaching staff during games, and he wanted more.”
● Howland’s refusal to discipline Nelson — “This is false. Besides the fact
that the incidents recounted by Defendants never happened, I was repeatedly disciplined
by Coach Howland for numerous reasons, which included but was not limited to my
November 2011 suspension from the team and my December 2011 expulsion from the
team. Through my entire time with the U.C.L.A. team, Coach Howland repeatedly
disciplined me for my failure to take practice drills and team games seriously, for not
going full speed at all times, and for otherwise not playing up to my skills.”

14
said they told Dohrmann that specific events described in the article had not occurred.3
Many of the players denied specific events described in the article, and each made a
statement substantially like the following: “During my time at U.C.L.A., I regularly
attended practice and team games with Reeves Nelson (‘Nelson’). I never saw Nelson
intentionally hurt or intentionally try to hurt any member of the U.C.L.A. basketball team
or staff, nor do I believe that Nelson ever intentionally hurt or tried to hurt any member of
the U.C.L.A. basketball team or staff, nor do I believe that Nelson ‘stalked’ or ‘targeted’
them during practice. I did not observe and do not believe that Coach Howland favored
Nelson over the other players in any fashion, not with respect to discipline or anything

3
Blake Arnet stated that he spoke to Dohrmann by telephone. During that
conversation, “Dohrmann told me that he had heard that Nelson intentionally hurt and
abused his teammates during and after practice sessions. . . . I told Dohrmann that I
never saw Nelson intentionally hurt or intentionally try to hurt any member of the
U.C.L.A. basketball team or staff, nor do I believe that Nelson ever intentionally hurt or
tried to hurt any member of the U.C.L.A. basketball team or staff, nor do I believe that
Nelson ‘stalked’ or ‘targeted’ them during practice. [¶] . . . I explained to Dohrmann that
I never saw Nelson ‘lose it’ during practice or otherwise ‘disrupt’ practice, not because of
foul calls or otherwise. I do not believe that Coach Howland gave Nelson ‘the benefit of
the doubt on foul calls in practice so [Nelson] wouldn’t lose it.’”
Alex Schrempf also said he spoke to Dohrmann by telephone. During that
conversation, “Dohrmann told me that he had heard that Reeves Nelson (‘Nelson’)
intentionally hurt me during practice as part of his ‘pattern’ of abusive behavior toward
teammates. I explained to Dohrmann that any such claims or stories were incorrect. [¶]
. . . During our conversation, Dohrmann specifically told me that he had ‘heard’ that
Nelson intentionally injured me during practice by knocking me to the ground from
behind. According to Dohrmann’s ‘source,’ Nelson’s conduct caused me to suffer a
serious back injury. I explained to Dohrmann that this version of events was incorrect.
While I was fouled by Nelson during a practice game, I explained to Dohrmann that I did
not believe Nelson intentionally meant to injure me. I further explained to Dohrmann
that I hurt my hip as a result of landing on my back during this practice game. I further
explained to Dohrmann that I was then and remain close friends with Nelson.”
Schrempf said he also told Dohrmann that the Trapani incident described in the
article had not happened. “Dohrmann talked to me about an incident between Nelson and
teammate Tyler Trapani (‘Trapani’). I attended the practice at which Trapani was
injured. I told Dohrmann that I did not observe Nelson ‘step on Trapani’s chest as he lay
on the ground’ during team practice.”

15
else. [¶] . . . I never saw Nelson ‘lose it’ during practice or otherwise ‘disrupt’ practice,
not because of foul calls or otherwise. I do not believe that Coach Howland gave Nelson
‘the benefit of the doubt on foul calls in practice so [Nelson] wouldn’t lose it,’ nor did I
see or hear Nelson yell at Coach Howland if a foul was called against him during
practice.”

C. Order Granting the Anti-SLAPP Motion

The court ruled that Nelson’s causes of action arose from the exercise of
defendants’ free speech rights, and thus that the first prong of the anti-SLAPP statute was
met. With regard to the second prong, Nelson’s likelihood of prevailing on the merits,
the court made detailed findings of fact and law. The court concluded that Nelson is a
limited purpose public figure and thus must demonstrate “actual malice” to prevail. The
court expressed concern that Nelson’s declarations did not contain original signatures and
some did not indicate the date or the place where the declarations were signed. The court
nonetheless considered the contents of the declarations and concluded that Nelson failed
to make the required showing:
“Plaintiff seeks to attack Dohrmann’s detailed declaration via the same 18
declarations from his former teammates that he attached to his complaint, in addition to
his own declaration. These declarations all dispute aspects of the article’s statements
relating to Nelson, going only to the issue of falsity, not malice. Dohrmann attested that
he was unsuccessful in his efforts to reach Honeycutt, Gordon, Morgan, and Lee—all
former UCLA players—for comments while researching the article. He was unable to
contact Anderson, Smith, and Stover, then current UCLA players.
“. . . He contacted and attempted to speak with the coach, Howland. He contacted
the team[’s] . . . media outlet. And he has a hundred minutes of conversations, ten
telephone conversations with the UCLA director, athlete communications. He has
extensive telephone records indicating the time he spent almost exclusively [in] January,
February 2012. He has 11 sources, eight of [whom] are former teammates.

16
 “. . . The Dohrmann declaration shows that he did not feel it was necessary to
speak to seven of the players . . . because they did not play with Nelson during the 2009-
2010 season, which is when nearly all the incidents relating to Nelson that are reported in
the article occurred. [¶] . . .
“And there’s an Excel spreadsheet embedded in the moving papers that shows the
number of confidential sources for each subject . . . and some of the subjects have 11
sources . . . . The lowest one was two on the injury of Alex Schrempf. And the cell
phone records or the telephone records show that this man spent a lot of time and talked
to a lot of people about this in preparation for this article.
“As defendants state, of 19 declarants only three—Nelson, Schrempf, and Arnet—
have any relevance to the issue of actual malice. They are the only declarants who spoke
with Dohrmann before the article was published. The Schrempf and Arnet declarations
contain only immaterial discrepancies and do not show actual malice.
“Schrempf claims that he told Dohrmann that he was fouled by the plaintiff during
the practice game, and he hurt his hip, not his back. And he also contends that he
explained to Dohrmann that he did not believe plaintiff intentionally meant to injure him.
Schrempf does not dispute that plaintiff’s conduct injured him. Whether the injury
involved his back or hip is not consequential for the purpose of this analysis.
“Dohrmann advised he had two sources for the description of the Schrempf
incident in the article. . . .
“Also, Schrempf’s statement regarding the plaintiff’s intent may be disregarded.
A declaration of one’s own intent is admissible as a statement of fact where relevant, but
a declaration as to someone else’s intent is a mere opinion or conclusion.
“Schrempf further claims that he told Dohrmann that he did not observe the
plaintiff step on Trapani’s chest as he lay on the ground during team practices.
Dohrmann, however, has advised that he had three sources for the description of the
Trapani incident . . . .
“. . . Trapani in his declaration submitted with plaintiff’s opposition, states that he
did take a charge from the plaintiff during what we call a three-on-two, two-on-one drill.

17
The only dispute here, then, is whether or not plaintiff intentionally stepped on Trapani.
Again, a statement as to someone else’s intent is a mere opinion or conclusion.
“Schrempf’s dispute about how the James Keefe incident was characterized also
boils down to an opinion regarding whether or not the plaintiff acted intentionally.
Dohrmann has advised that he had four sources for the description of this incident.
“. . . Arnet’s dispute of how the Trapani incident was characterized again
constitutes nothing more than his opinion regarding whether or not the plaintiff acted
intentionally. His claim that he explained to Dohrmann that he never saw plaintiff lose it
during practice or otherwise disrupt the practice is also his opinion. Defendant
Dohrmann has advised that he had numerous sources confirming same. [¶] . . . [¶]
“Plaintiff’s own declaration does not establish actual malice. After the article sets
forth certain allegedly defamatory statements of plaintiff’s aggressive conduct towards
his teammate[s], it states plaintiff confirmed all of these incidents to Sports Illustrated
and . . . expressed his regret, saying, ‘On all that stuff, I have no trouble admitting that I
lost control of my emotions sometimes. I take responsibility for my actions. I’m really
just trying to learn from the mistakes I made on all levels.’ [¶] . . . [¶]
“Plaintiff’s version of his conversation with Dohrmann is contradicted by
Dohrmann. However, even plaintiff’s version, if accepted, does not constitute actual
malice as to the allegedly defamatory statement. Plaintiff admitted making the statement.
There’s no issue of a quotation being deliberately altered. As defendant points out,
although plaintiff claims the meaning of these quotations was distorted, he cites no
authority for the proposition that a dispute over the meaning of the quotation is sufficient
to show actual malice where the quotation was not altered.
“Even if it could be assumed that the defendants misquoted . . . plaintiff’s
confirmation of certain incidents, that would not establish that defendants knowingly
misstated the incidents themselves.” (Citation and internal record references omitted.)
The court granted the anti-SLAPP motion on October 16, 2012, and defendants
served notice of entry of the order on October 19, 2012. Nelson timely appealed.

18
 DISCUSSION

I. The Anti-SLAPP Law
“The anti-SLAPP law provides 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. (§ 425.16, 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 defendant’s challenged acts were taken in furtherance of his or her
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.)
“After the defendant satisfies the first step, the burden shifts to the plaintiff to
demonstrate there is a reasonable 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 the 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. [(2002)]
29 Cal.4th [53,] 68, fn. 5; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In
making this assessment, the court must consider both the legal sufficiency of and
evidentiary support for the pleaded claims, and must also examine whether there are any
constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether

19
there is evidence to negate any such defenses. (Traditional Cat Assn., Inc. v. Gilbreath
(2004) 118 Cal.App.4th 392, 398-399.)
“In considering whether a plaintiff has met those evidentiary burdens, the court
must consider the pleadings and the evidence submitted by the parties. (§ 425.16, subd.
(b)(1), (2).) However, the court cannot weigh the evidence (Looney v. Superior Court
(1993) 16 Cal.App.4th 521, 537-538) but instead must simply determine whether the
plaintiff’s evidence would, if credited, be sufficient to meet the burden of proof. (Wilcox
v. Superior Court, supra, 27 Cal.App.4th at pp. 823-825 [standard for assessing evidence
is analogous to standard applicable to motions for nonsuit or directed verdict].)
“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.)” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 107-109
(McGarry).)
Nelson concedes that all three causes of action asserted in the operative complaint
implicate defendants’ free speech rights and, thus, defendants have satisfied their burden
under the first prong of the anti-SLAPP analysis. The only issue on appeal, therefore, is
the second prong: whether Nelson introduced sufficient evidence to establish a
probability of success on the merits of his defamation and related claims.

II. Evidentiary Issues
We begin by addressing defendants’ evidentiary challenge to Nelson’s
declarations. Defendants assert that all of Nelson’s declarations had evidentiary
defects—namely, the declarations “lacked original signatures and numerous declarations
failed to meet the requirements of Code of Civil Procedure section 2015.5.” Thus,
defendants say, Nelson has “failed to offer any admissible evidence for this Court to
consider on appeal and the trial court’s decision should be affirmed on that . . . basis.”
For the reasons that follow, we reject defendants’ evidentiary challenges and consider the
substance of Nelson’s declarations.

20
 Defendants did not object to the admissibility of any of Nelson’s declarations. At
the hearing on the anti-SLAPP motion, however, the court said that, in its view, Nelson’s
declarations had “major problems,” noting that none of Nelson’s declarations had original
signatures, none specified the place of execution, and several were undated. The court
nonetheless considered the content of the declarations for purposes of its tentative ruling,
which it later adopted as a final ruling, stating as follows: “That tentative ruling just
assumed all of these declarations were admissible. I think there are some fatal problems
with them, but in an abundance of caution I included all of the declarations in the
tentative ruling.”
Defendants contend that we may not consider Nelson’s declarations because the
trial court’s order excluding them was not an abuse of discretion. We do not agree. As
an initial matter, we reject as a factual matter defendants’ premise that the court excluded
the declarations. Although the trial court expressed concern about the admissibility of the
declarations, it did not exclude them; to the contrary, the court’s oral ruling is clear that
the court considered the declarations’ contents and concluded that they did not
demonstrate a likelihood that Nelson would prevail.4
In any event, the issue is waived. In the anti-SLAPP context, a defendant who
fails to object to plaintiff’s evidence in the trial court waives any objection on appeal.
(E.g., U.S. Western Falun Dafa Assn. v. Chinese Chamber of Commerce (2008) 163
Cal.App.4th 590, 603, fn. 5 [“In the anti-SLAPP context, evidentiary objections are
waived when counsel does not seek or obtain rulings on its evidentiary objections at the
hearing.”].) This is so to give the plaintiff an opportunity to cure correctable evidentiary
defects. In Gallagher v. Connell (2004) 123 Cal.App.4th 1260, 1269, the court explained
the rule as follows: “We do not quarrel with the proposition the Legislature intended ‘“to
prevent SLAPPs by ending them early and without great cost to the SLAPP target.”’ But

4
Defendants appear to concede this point early in their respondents’ brief, saying,
“The court fully credited the numerous declarations filed by Nelson and did not weigh the
credibility of the evidence.”

21
the Legislature also intended ‘to avoid jeopardizing meritorious lawsuits.’ Requiring the
defendant to clearly state the specific ground of her objection to the plaintiff’s evidence
maintains this balance between the interests of the defendant and the plaintiff.” In the
case before it, the Gallagher court said, had the defendant objected to the evidence as
hearsay when offered by plaintiff in opposition to the anti-SLAPP motion, plaintiff
“would have had the opportunity to cure the defect in his evidence. He could have
obtained a declaration from the reporter or another witness testifying [defendant] made
the statement. Alternatively he could have asked the trial court to continue the hearing on
the motion and lift the stay on discovery so he could take the reporter’s deposition. . . .
We also observe it is entirely possible if not probable [plaintiff] will introduce the
reporter’s testimony at trial, or at least other evidence proving [defendant] indeed did
make these statements during her interview for the newspaper article. In other words,
this is not the sort of evidentiary problem a plaintiff will be incapable of curing by the
time of trial.” (Ibid., italics added, fns. omitted.)
The present case is analogous. Had defendants objected to Nelson’s declarations
on the grounds that they did not comply with section 2015.5, Nelson likely could have
cured the asserted defects by filing original signatures and, where necessary, having
witnesses sign new declarations that indicated the dates on which they were signed.
Because defendants did not object, Nelson never had the opportunity to which he was
entitled to cure evidentiary defects. Accordingly, the court was not precluded from
considering Nelson’s declarations.5

5
In any event, the case on which defendants rely for the proposition that the trial
court had discretion to exclude the declarations, Kulshrestha v. First Union Commercial
Corp. (2004) 33 Cal.4th 601, does not support it. In Kulshrestha, the Supreme Court
considered whether declarations “signed under penalty of perjury outside this state satisfy
section 2015.5, and are admissible in summary judgment and other authorized
proceedings, even though the contents are not certified as true ‘under the laws of the State
of California.’” (Id. at p. 606.) The court answered the narrow question before it in the
negative: “[Section 2015.5] requires some acknowledgement on the face of the
declaration that perjured statements might trigger prosecution under California law. The
(Fn. continued.)

22
III. Defamation
Nelson’s first cause of action is for defamation. “The elements of a defamation
claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th
683, 720.)” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) A public figure (or
“limited purpose public figure”) suing for defamation must also demonstrate “actual
malice.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 84 (Christian
Research).)
A statement is defamatory if it exposes the plaintiff “‘to hatred, contempt, ridicule,
or obloquy, or which causes him to be shunned or avoided, or which has a tendency to
injure him in his occupation.’ (Civ. Code, § 45.)” (McGarry, supra, 154 Cal.App.4th at
p. 112.) “A statement is defamatory when it tends ‘directly to injure [a person] in respect
to his office, profession, trade or business, either by imputing to him general
disqualification in those respects which the office or other occupation peculiarly requires,
or by imputing something with reference to his office, profession, trade, or business that
has a natural tendency to lessen its profits.’ (Civ. Code, § 46, subd. 3.) Statements that
contain such a charge directly, and without the need for explanatory matter, are libelous
per se. (Civ. Code, § 45a.)” (Ibid.)

Legislature has determined that such knowledge can be inferred from the ‘place of
execution’ where the document shows it was signed here. (§ 2015.5.) All other
declarations, including those signed in other states, must invoke ‘the laws of the State of
California.’ (Ibid.)” (Id. at p. 606.) Because the Kulshrestha plaintiff’s declaration was
executed in Ohio and did not declare that it was made “‘under the laws of the State of
California,’” the trial court correctly sustained defendant’s objection to it. (Id. at p. 607.)
The present case is distinguishable, however. Although several of the players’
declarations do not indicate where they were signed, each player declared “under penalty
of perjury under the laws of the State of California” that his statement was true and
correct. (Italics added.) Because the declarations thus expressly reference California’s
perjury laws, they were not required to also state the place of execution. (Code Civ.
Proc., § 2015.5.)

23
 There can be no doubt that the article exposes Nelson to “hatred, contempt,
ridicule, or obloquy,” would cause him to be “shunned or avoided,” and has a tendency to
injure Nelson in his occupation. Further, Nelson contends, and defendants do not contest,
that the opposition to the anti-SLAPP motion established a prima facie case of falsity.6
We therefore consider whether (1) Nelson is a public figure (or a “limited purpose public
figure”), and (2) whether Nelson has made a prima facie showing that defendants acted
with actual malice.

A. Nelson Is a Limited Purpose Public Figure
To determine whether Nelson must establish malice, we must first decide whether
Nelson is a “public figure” (or a “limited purpose public figure”). Nelson asserts he is
not a public figure because he had not “‘undertaken some voluntary act through which he
seeks to influence the resolution of the public issues involved’” and did not have an
“‘influential role in ordering society.’” Instead, Nelson urges, he is a “twenty-year-old,
unemployed, former college basketball player” who “was then and remains now a
‘private individual.’” Defendants disagree, contending that because Nelson received
national attention as a top college basketball player for a high profile team, he is, at a
minimum, a limited purpose public figure. For the reasons that follow, defendants are
correct.
In New York Times Co. v. Sullivan (1964) 376 U.S. 254, 278-280 (New York
Times), the United States Supreme Court held that the First Amendment requires
plaintiffs who are public officials to prove “actual malice” to recover damages in
defamation actions. Ten years later, in Gertz v. Robert Welch (1974) 418 U.S. 323, 342
(Gertz), the court extended the actual malice requirement to plaintiffs who, although they
are not public officials, “by reason of the notoriety of their achievements or the vigor and

6
Although defendants assert in their respondents’ brief that they “never conceded
that the statements in the Article were false,” they do not contend that plaintiff did not
establish a prima facie case of falsity.

24
success with which they seek the public’s attention, are properly classified as public
figures.” (Italics added.) The court explained its extension of the actual malice
requirement to public figures as follows: “Those classed as public figures stand in a
similar position [to public officials]. Hypothetically, it may be possible for someone to
become a public figure through no purposeful action of his own, but the instances of truly
involuntary public figures must be exceedingly rare. For the most part those who attain
this status have assumed roles of special prominence in the affairs of society. Some
occupy positions of such persuasive power and influence that they are deemed public
figures for all purposes. More commonly, those classed as public figures have thrust
themselves to the forefront of particular public controversies in order to influence the
resolution of the issues involved. In either event, they invite attention and comment.”
(Id. at p. 345.)
Courts have frequently applied the New York Times/Gertz standard to conclude
that professional and college athletes and coaches are “public figures” subject to the
actual malice standard. Time, Inc. v. Johnston (4th Cir. 1971) 448 F.2d 378 (Johnston) is
one such case. There, the plaintiff, a former professional basketball player and college
basketball coach, brought a libel action after Sports Illustrated reported plaintiff had been
“destroyed . . . psychologically” and “practically [run] out of organized basketball.” (Id.
at p. 379.) The Fourth Circuit Court of Appeals reversed an order denying summary
judgment for defendant, concluding in relevant part that plaintiff was a limited purpose
public figure. It explained:
“There can be no dispute that at the time of the events discussed in the challenged
publication the plaintiff met the criteria of ‘a public figure.’ ‘Public figures,’ within the
contemplation of the rule in New York Times [Co. v. Sullivan, supra, 376 U.S. 254], as
enlarged by subsequent cases, are ‘those persons who, though not public officials, are
“involved in issues in which the public has a justified and important interest”’ and
‘include artists, athletes, business people, dilettantes, anyone who is famous or infamous
because of who he is or what he has done.’ Cepeda v. Cowles Magazines and
Broadcasting, Inc. (9th Cir. 1968) 392 F.2d 417, 419, cert. denied 393 U.S. 840.

25
Consonant with this definition, a college athletic director,[7] a basketball coach,[8] a
professional boxer[9] and a professional baseball player,[10] among others, have all been
held to be ‘public figures.’ The plaintiff, as he figures in the challenged publication, fits
this definition of a ‘public figure.’ . . . He had offered his services to the public as a paid
performer and had thereby invited comments on his performance as such. In a sense, he
assumed the risk of publicity, good or bad, as the case might be, so far as it concerned his
public performance. The publication in question related strictly to his public character. It
made no reference to his private life, it involved no intrusion into his private affairs. It
dealt entirely with his performance as a professional basketball player; it discussed him in
connection with a public event in which the plaintiff as a compensated public figure had
taken part voluntarily.” (Johnston, supra, 448 F.2d at p. 380.)

7
Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 [college athletic director and
former college head football coach must prove actual malice to prevail against the
Associated Press in a libel action arising out of article accusing athletic director of
conspiring to “fix” a college football game].
8
Grayson v. Curtis Publishing Co. (1967) 72 Wash.2d 999, 1007 [college
basketball coach was a “public figure in which the public has a justified and important
interest”; thus, he was required to establish actual malice in defamation action].
9
Cohen v. Marx (1949) 94 Cal.App.2d 704, 705 [professional boxer waived his
right to privacy: “A person who by his accomplishments, fame, or mode of life, or by
adopting a profession or calling which gives the public a legitimate interest in his doings,
affairs, or character, is said to become a public personage, and thereby relinquishes a part
of his right of privacy. [Citations.] [¶] Applying the foregoing rule to the facts in the
present case it is evident that when plaintiff sought publicity and the adulation of the
public, he relinquished his right to privacy on matters pertaining to his professional
activity, and he could not at his will and whim draw himself like a snail into his shell and
hold others liable for commenting upon the acts which had taken place when he had
voluntarily exposed himself to the public eye. As to such acts he had waived his right of
privacy and he could not at some subsequent period rescind his waiver.”].
10
Cepeda v. Cowles Magazines & Broadcasting, Inc., supra, 392 F.2d at
pages 418-421 [professional baseball player was a public figure and, thus, was required
to prove actual malice in libel action against national magazine].

26
 The court reached a similar result in Chuy v. Philadelphia Eagles Football Club
(E.D.Pa. 1977) 431 F.Supp. 254 (Chuy), concluding that a professional football player
suing for defamation was a public figure. It explained that under Supreme Court case
law, a public figure is one who has “voluntarily placed himself before the public eye.”
(Id. at p. 266.) A public figure need not be involved in an issue of public controversy, the
court said—it is enough that the society’s interest “inspires comment in the press and
elsewhere.” (Id. at p. 267.) It explained: “Where a person has . . . chosen to engage in a
profession which draws him regularly into regional and national view and leads to ‘fame
and notoriety in the community,’ even if he has no ideological thesis to promulgate, he
invites general public discussion. We obviously cannot say that the public’s interest in
professional football is important to the commonweal or to the operation of a democratic
society in the same sense as are political and ideological matters. However, the fabric of
our society is rich and variegated. As is demonstrated by the Nielsen ratings, the
American public is fascinated by professional sports. In view of that fact we must affirm
the proposition that interest in professional football must be deemed an important
incident among many incidents, of a society founded upon a high regard for free
expression.
“We consider it unacceptable for a court in determining whether a particular
individual is a ‘public figure’ to pass qualitatively upon the ‘affairs of society.’ If society
chooses to direct massive public attention to a particular sphere of activity, those who
enter that sphere inviting such attention must overcome the Times standard. Society’s
interest inspires comment in the press and elsewhere. The greater the interest, the greater
is the public’s self-generating need for the facts. This is especially so in this case where
the subject matter pertained to Donald Chuy’s ability to continue playing professional
football, a matter in which the sports loving public had a not insignificant interest.”
(Chuy, supra, 431 F.Supp. at p. 267, fn. omitted.)
The Court of Appeal relied on Johnston and Chuy to conclude in McGarry, supra,
154 Cal.App.4th 97, that a former university head football coach was a limited purpose
public figure for First Amendment purposes. It explained: “Numerous courts, beginning

27
with the Supreme Court’s opinion in Curtis Publishing Co. v. Butts[, supra,] 388 U.S.
130, have concluded professional and collegiate athletes and coaches are at least limited
purpose public figures. (See e.g., Brewer v. Memphis Pub. Co., Inc. (5th Cir. 1980) 626
F.2d 1238, 1254-1255; Chuy v. Philadelphia Eagles Football Club[, supra,] 431 F.Supp.
254, 267.) ‘[A] common thread in these cases is that one’s voluntary decision to pursue a
career in sports, whether as an athlete or a coach, “invites attention and comment”
regarding his job performance and thus constitutes an assumption of the risk of negative
publicity.’ (Barry v. Time, Inc. (N.D.Cal. 1984) 584 F.Supp. 1110, 1119.) . . . [¶]
McGarry voluntarily entered the public arena as a college football coach, and the
statements dealt exclusively with his performance of the public role he voluntarily
undertook. We conclude McGarry was a limited purpose public figure for purposes of
the allegedly defamatory statements.” (McGarry, supra, 154 Cal.App.4th at p. 115.)
The present case is analogous to those discussed above. Nelson was an important
part of the UCLA men’s basketball team. He was named in more than 2,000 news
articles that predate the article’s publication and, while at UCLA, regularly gave
interviews and appeared in post-game news conferences. His picture appeared on the
cover of the November 14, 2011 Western Regional issue of Sports Illustrated as one of
the country’s top college basketball players. Further, by his own admission, Nelson
“rapidly earn[ed] a reputation for himself as one of the team’s (and college basketball’s)
rising stars. During his freshman year, Nelson was named to the Pacific-10 Conference’s
All-Freshman Team. He also earned U.C.L.A.’s Seymour Armond Memorial
Award/Most Valuable Freshman along with teammate and future N.B.A. player Tyler
Honeycutt. During his sophomore year, Nelson was twice named the Pacific-10
Conference Player of the Week and repeatedly led his team in scoring, rebounding, and
field goal percentage. Following the 2010-2011 season, Nelson was named to the All
Pacific-12 Conference Men’s First Basketball Team, the U.S. Basketball Writers’
Association District IX Team, and the National Association of Basketball Coaches
All-District 20 Second Team. He also received U.C.L.A.’s Gerald A. Finerman Award
as Team Rebounding Leader and the Coach John Wooden Award/Tri-Most Valuable

28
Player, which latter honor he shared with teammates Tyler Honeycutt and Malcolm
Lee.”11
Given the exceedingly widespread interest in UCLA men’s basketball and
Nelson’s position as a “rising star” on that team, we necessarily conclude that, like the
professional athletes and coaches at issue in Johnston, Chuy, and McGarry, Nelson is a
limited purpose public figure. As in those cases, Nelson has voluntarily chosen to pursue
a career in sports, inviting “comment and attention” about his job performance.
Moreover, the article related solely to his “public character” as a basketball player,
discussing him solely in connection with public events in which Nelson took part
voluntarily.
Nelson cites Wilson v. Daily Gazette Co. (2003) 214 W.Va. 208 (Wilson) for the
proposition that an amateur sports figure, as distinct from a professional athlete, is not a
limited purpose public figure. We do not agree. The Wilson plaintiff was a 17-year-old
high school athlete who was a member of his high school’s football and basketball teams
and received a scholarship to play football at West Virginia University. (Id. at p. 211.)
The defendant newspaper published two articles referencing a rumor that plaintiff had
exposed himself during a basketball game, and plaintiff sued for defamation. (Id. at p.
213.) The West Virginia Supreme Court held that plaintiff was not a public figure and
therefore need not prove actual malice because defendant’s evidence “simply established
that in some circles, namely athletics, Mr. Wilson may have achieved a reputation as a
quality high school athlete.” (Id. at pp. 216-217.) Such evidence, the court said, “does
not satisfy the high bar outlined by Gertz.” (Id. at p. 217.)
Wilson is not dispositive of the present case. Contrary to Nelson’s contention,
Wilson’s amateur status was not relevant to the court’s analysis—what mattered was the

11
The trial court took judicial notice of the fact that “[a] search on Lexis Nexis in the
‘News and Business’ database, selecting ‘News, all’ as a source, inputting as a query
‘reeves nelson and not (lawsuit or litigation or sports illustrated),’ and restricting the
results to those dated from January 1, 2004 to February 28, 2012, returns 2,223 articles.”

29
quantum of public interest.12 As to that issue, there can be no real dispute that public
interest in a star UCLA basketball player is considerably greater than in a small town
high school athlete, whatever his talents.
Finally, the fact that Nelson is no longer playing college basketball is irrelevant.
According to Nelson, “[E]ven if this Court believes that Nelson previously was a ‘limited
public figure’ by virtue of his place on the U.C.L.A. Men’s Basketball Team through
December 2011, that ended following his dismissal from the team.” Not so. As one
court has explained: “[M]ere passage of time will not necessarily insulate from the
application of New York Times Co. v. Sullivan, publications relating to the past public
conduct of a then ‘public figure.’ No rule of repose exists to inhibit speech relating to the
public career of a public figure so long as newsworthiness and public interest attach to
events in such public career. . . . [¶] ‘. . . it is evident that when plaintiff sought publicity
and the adulation of the public, he relinquished his right to privacy on matters pertaining
to his professional activity, and he could not at his will and whim draw himself like a
snail into his shell and hold others liable for commenting upon the acts which had taken
place when he had voluntarily exposed himself to the public eye. As to such acts he had
waived his right of privacy and he could not at some subsequent period rescind his
waiver.’” (Johnston, supra, 448 F.2d at pp. 381-382.)
For all of these reasons, the trial court correctly concluded that to successfully
oppose defendants’ anti-SLAPP motion, Nelson must establish a prima facie case of
actual malice. We therefore turn to that issue.

12
Indeed, the Wilson court discussed Holt v. Cox Enterprises (N.D.Ga. 1984) 590
F.Supp. 408, in which a college football player was held to be a public figure, and agreed
that the evidence before the Holt court supported its finding that the plaintiff was a
limited purpose public figure. (Wilson, supra, 214 W.Va. at p. 218.)

30
 B. Nelson Successfully Demonstrated a Prima Facie Case of Actual Malice
1. Actual Malice
“A public figure suing for defamation ‘must demonstrate “actual malice” by clear
and convincing evidence.’ (Christian Research Institute v. Alnor[, supra,] 148
Cal.App.4th 71, 84 (Christian Research).) Actual malice ‘requires a showing that the
allegedly false statement was made “with knowledge that it was false or with reckless
disregard of whether it was false or not.” [Citation.] The reckless disregard standard
requires a “high degree of awareness of . . . probable falsity . . . .” [Citation.]’
(Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1167 (Annette F.).) ‘The question
is not “‘whether a reasonably prudent [person] would have published, or would have
investigated before publishing. There must be sufficient evidence to permit the
conclusion that the defendant in fact entertained serious doubts as to the truth of his
publication. Publishing with such doubts shows reckless disregard for truth or falsity and
demonstrates actual malice.’” [Citation.]’ (Christian Research, supra, 148 Cal.App.4th
at p. 84.)”13 (Burrill v. Nair (2013) 217 Cal.App.4th 357, 389 (Burrill).)
Because Nelson will have to prove actual malice by clear and convincing evidence
at trial, to successfully defend against defendants’ anti-SLAPP motion, he must
“‘establish a probability that [he] will be able to produce clear and convincing evidence
of actual malice.’ (Annette F., supra, 119 Cal.App.4th at p. 1167.) Stated differently, we
must determine whether [plaintiff] has made a sufficient prima facie showing of facts to
sustain [his] burden of demonstrating a high probability that [defendants] published the
defamatory statements with knowledge of their falsity or while entertaining serious
doubts as to their truth. (See Colt v. Freedom Communications, Inc. (2003) 109
Cal.App.4th 1551, 1557; Annette F., supra, 119 Cal.App.4th at p. 1169 [defamation

13
“Actual malice under the New York Times standard should not be confused with
the concept of malice as an evil intent or a motive arising from spite or ill will.
[Citation.]” (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 510-511
(Masson).) Instead, “actual malice” is a “shorthand to describe the First Amendment
protections for speech injurious to reputation.” (Id. at p. 511.)

31
plaintiff bears ‘the burden of making a “sufficient prima facie showing of facts to sustain
a favorable judgment” on the issue of actual malice’].)” (Burrill, supra, 217 Cal.App.4th
at p. 390.)
“A defamation plaintiff may rely on inferences drawn from circumstantial
evidence to show actual malice. (Reader’s Digest [Assn. v. Superior Court (1984)] 37
Cal.3d [244,] 257-258.) ‘A failure to investigate [fn. omitted] [citation], anger and
hostility toward the plaintiff [citation], reliance upon sources known to be unreliable
[citations], or known to be biased against the plaintiff [citations]—such factors may, in an
appropriate case, indicate that the publisher himself had serious doubts regarding the
truth of his publication.’ (Id. at p. 258.) Thus, malice may be inferred where, for
example, ‘a story is fabricated by the defendant, is the product of his imagination, or is
based wholly on an unverified anonymous telephone call.’ (St. Amant v. Thompson
(1968) 390 U.S. 727, 732 (St. Amant).) Similarly, an inference of malice may be drawn
‘when the publisher’s allegations are so inherently improbable that only a reckless man
would have put them in circulation[,] . . . [or] where there are obvious reasons to doubt
the veracity of the informant or the accuracy of his reports. [Fn. omitted.]’ (Ibid.)
Conversely, ‘[t]he 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. [Citations.] Similarly, mere proof of ill will on the part of the publisher
may likewise be insufficient. [Citation.]’ (Reader’s Digest, supra, 37 Cal.3d at p. 258.)”
(Christian Research, supra, 148 Cal.App.4th at pp. 84-85.)

2. Nelson’s Alleged Admissions and Apology
Nelson asserts that the article contained two different kinds of defamatory
statements: (1) false descriptions of his alleged aggressive conduct; and (2) false
attributions to Nelson himself of statements admitting and apologizing for such conduct.
With regard to the latter, the article states that when interviewed by Dohrmann, Nelson
admitted engaging in some of the incidents of misconduct described and failed to deny
others. Nelson said in his declaration, however, that he did not tell Dohrmann that he

32
engaged in any of the misconduct described in the article and, indeed, Dohrmann never
discussed most of the alleged incidents with him.
The standard for evaluating defamation claims of this kind was set out by the
United States Supreme Court in Masson, supra, 501 U.S. 496, to which we now turn.

(a) Masson v. New Yorker Magazine
Masson involved an appeal from a summary judgment entered against a libel
plaintiff who claimed he was defamed by an author who, with full knowledge of the
inaccuracy, used quotation marks to attribute to plaintiff comments he had not made.
(Masson, supra, 501 U.S. at p. 499.) The defendants were author Janet Malcolm and The
New Yorker, a weekly magazine. Malcolm contacted plaintiff Jeffrey Masson, a
psychoanalyst, and asked to interview him for an article regarding his relationship with
the Sigmund Freud Archives. Masson agreed and participated in a series of taped
interviews. Those interviews resulted in a lengthy article in The New Yorker that
portrayed Masson in an extremely unflattering light. (Id. at pp. 499-501.)
The article was made up, in large part, of lengthy passages in quotation marks that
purported to represent the statements of Masson and others. (Masson, supra, 501 U.S. at
p. 500.) Masson asserted that Malcolm fabricated or changed the meaning of many of the
supposed quotations, rendering them defamatory. (Id. at pp. 501-502.) As relevant here,
Malcolm quoted Masson as giving the following explanation of an attempt by Kurt
Eissler, head of the Sigmund Freud Archives, to extract a promise of confidentiality from
him:
“‘“[Eissler] was always putting moral pressure on me. ‘Do you want to poison
Anna Freud’s last days? Have you no heart? You’re going to kill the poor old woman.’
I said to him, ‘What have I done? You’re doing it. You’re firing me. What am I
supposed to do—be grateful to you?’ ‘You could be silent about it. You could swallow
it. I know it is painful for you. But you could just live with it in silence.’ ‘Why should I
do that?’ ‘Because it is the honorable thing to do.’ Well, he had the wrong man.”’”

33
(Masson, supra, 501 U.S. at p. 507, internal record reference and original emphasis
omitted, italics added.)
The tape recordings of the interview demonstrated that Malcolm had deleted part
of what Masson said immediately before the “wrong man” sentence. In the tape
recording, Masson said as follows: “‘But it was wrong of Eissler to do that, you know.
He was constantly putting various kinds of moral pressure on me and, “Do you want to
poison Anna Freud’s last days? Have you no heart?” He called me: “Have you no
heart? You’re going to kill the poor old woman. Have you no heart? Think of what
she’s done for you and you are now willing to do this to her.” I said, “What have I, what
have I done? You did it. You fired me. What am I supposed to do: thank you? be
grateful to you?” He said, “Well you could never talk about it. You could be silent about
it. You could swallow it. I know it’s painful for you but just live with it in silence.”
“Fuck you,” I said, “Why should I do that? Why? You know, why should one do that?”
“Because it’s the honorable thing to do and you will save face. And who knows? If you
never speak about it and you quietly and humbly accept our judgment, who knows that in
a few years if we don’t bring you back?” Well, he had the wrong man.’” (Masson,
supra, 501 U.S. at pp. 507-508, original italics omitted and italics added.)
The Supreme Court held that this alteration and others supported Masson’s libel
action, and thus the district court erred in granting defendants’ motion for summary
judgment. (Masson, supra, 501 U.S. at p. 510.) The court began by explaining that
“[f]alse attribution of statements to a person may constitute libel, if the falsity exposes
that person to an injury comprehended by the statute. [Citations.]” (Ibid.) Indeed, “[a]
self-condemnatory quotation may carry more force than criticism by another. It is against
self-interest to admit one’s own criminal liability, arrogance, or lack of integrity, and so
all the more easy to credit when it happens. This principle underlies the elemental rule of
evidence which permits the introduction of statements against interest, despite their
hearsay character, because we assume ‘that persons do not make statements which are
damaging to themselves unless satisfied for good reason that they are true.’ [Citations.]”
(Id. at p. 512.)

34
 However, the court said, not every alteration to a quoted statement creates a
“falsity” for purposes of defamation: “The constitutional question we must consider here
is whether, in the framework of a summary judgment motion, the evidence suffices to
show that respondents acted with the requisite knowledge of falsity or reckless disregard
as to truth or falsity. This inquiry in turn requires us to consider the concept of falsity;
for we cannot discuss the standards for knowledge or reckless disregard without some
understanding of the acts required for liability. We must consider whether the requisite
falsity inheres in the attribution of words to the petitioner which he did not speak.”
(Masson, supra, 501 U.S. at p. 513.)
The court rejected Masson’s contention that any alteration beyond correction of
grammar or syntax by itself proves falsity in the sense relevant to determining actual
malice. It explained: “California law permits the defense of substantial truth and would
absolve a defendant even if she cannot ‘justify every word of the alleged defamatory
matter; it is sufficient if the substance of the charge be proved true, irrespective of slight
inaccuracy in the details.’ . . . Minor inaccuracies do not amount to falsity so long as ‘the
substance, the gist, the sting, of the libelous charge be justified.’ [Citations.] Put another
way, the statement is not considered false unless it ‘would have a different effect on the
mind of the reader from that which the pleaded truth would have produced.’ [Citations.]”
(Masson, supra, 501 U.S. at pp. 516-517.) The court thus concluded that “a deliberate
alteration of the words uttered by a plaintiff does not equate with knowledge of falsity for
purposes of New York Times Co. v. Sullivan, 376 U.S., at 279-280, and Gertz v. Robert
Welch, Inc., supra, 418 U.S., at 342, unless the alteration results in a material change in
the meaning conveyed by the statement.” (Id. at p. 517, italics added.)
The court continued: “The use of quotations to attribute words not in fact spoken
bears in a most important way on that inquiry, but it is not dispositive in every case. [¶]
. . . [F]or the reasons we have given, quotations may be a devastating instrument for
conveying false meaning. In the case under consideration, readers of In the Freud
Archives may have found Malcolm’s portrait of petitioner especially damning because so
much of it appeared to be a self-portrait, told by [Masson] in his own words. And if the

35
alterations of [Masson’s] words gave a different meaning to the statements, bearing upon
their defamatory character, then the device of quotations might well be critical in finding
the words actionable.” (Masson, supra, 501 U.S. at pp. 517-518.)
With respect to the “wrong man” quotation, the court concluded that the difference
between Masson’s actual statement and the way in which it was quoted in Malcolm’s
article could support a cause of action for defamation. It explained: “The quoted version
makes it appear as if [Masson] rejected a plea to remain in stoic silence and do ‘the
honorable thing.’ The tape-recorded version indicates that [Masson] rejected a plea
supported by far more varied motives: Eissler told [Masson] that not only would silence
be ‘the honorable thing,’ but [Masson] would ‘save face,’ and might be rewarded for that
silence with eventual reinstatement. [Masson] described himself as willing to undergo a
scandal in order to shine the light of publicity upon the actions of the Freud Archives,
while Malcolm would have [Masson] describe himself as a person who was ‘the wrong
man’ to do ‘the honorable thing.’” (Masson, supra, 501 U.S. at p. 525.) This difference,
the court said, “is material, a jury might find it defamatory, and, for the reasons we have
given, there is evidence to support a finding of deliberate or reckless falsification.”
(Ibid.)

(b) If credited by a trier of fact, Nelson’s declaration testimony
that defendants altered or fabricated his alleged admissions
and apology would support a defamation judgment
The article contains three statements that purport to quote or paraphrase Nelson’s
statements to Dohrmann. Nelson contends that the first misrepresents the nature of
Dohrmann’s disclosures to Nelson, rendering Nelson’s response to Dohrmann
misleading; he says the others are fabricated.

Nelson’s confirmation of incidents and expression of regret. The article says that
Nelson confirmed the incidents described and expressed regret for them, as follows:

36
“Nelson confirmed all these incidents to [Sports Illustrated] and expressed his regret,
saying, ‘On all that stuff, I have no trouble admitting that I lost control of my emotions
sometimes. I take responsibility for my actions. I’m really just trying to learn from the
mistakes I made on all levels.’”
Nelson says that although he made the statement the article attributes to him, he
was not referring to the misconduct described in the article. He says: “According to the
article, I confirmed each of my reported acts of violence and bullying against my
teammates to Defendants . . . . This is false.
“. . . After Dohrmann telephoned my home and left his number with my father, I
called Dohrmann back. We then had a brief telephone conversation. At the very start of
our call, Dohrmann asked me how I felt about my November 2011 suspension from the
team and my December 2011 expulsion from the team. I then told him something to the
effect of the words quoted above—‘On all that stuff, I have no trouble admitting that I
lost control of my emotions sometimes. I take responsibility for my actions. I’m really
just trying to learn from the mistakes I made on all levels.’ [¶] . . . [¶] Dohrmann then
spent the bulk of our brief telephone call asking me to comment about various portions of
his to-be-published article, which portions were unrelated to me and mostly focused on
Coach Howland. I declined to comment about these portions of his article. During my
entire conversation with Dohrmann, he brought up none of the specific instances of my
alleged bullying and violence against my teammates and team staff save for one—the
Honeycutt incident—which he brought up at the very end of our telephone call. . . .
“. . . Dohrmann never referenced or asked me about the bulk of his article’s
statements about me during our telephone call. He did not reference or ask me about my
alleged bullying and violence toward Mike Moser, James Keefe, Drew Gordon, Tyler
Trapani, Brendan Lane, Alex Schrempf, or Matt Carlino. He did not reference or ask me
about Coach Howland allegedly withholding punishment from me because of my alleged
violence and bullying toward these or other players. . . . He brought up none of these
things during our conversation, most of which conversation revolved around the
remainder of his article attacking Coach Howland and other players on the team. As

37
such, I never confirmed or even spoke to Defendants about the overwhelming majority of
incidents of my alleged bullying and violence described in Defendants’ article, nor did
Defendants give me the opportunity to do so.”
Crediting (as we must for anti-SLAPP purposes) Nelson’s account of the
interview, we conclude that Dohrmann’s statement that Nelson confirmed some of the
incidents described by the article and expressed regret would support a finding of actual
malice. As in Masson, the alleged falsity is not the words spoken by Nelson, but the
context in which the words are placed. As reported by Dohrmann, Nelson appears to be
admitting and apologizing for each of the incidents described in the article. But Nelson
says these incidents never happened and more significantly for our analysis that
Dohrmann never asked him about them. Although Nelson concedes he made the quoted
statement, he says it was in response to Dohrmann’s inquiry as to how he felt about his
suspension and expulsion from the team, not an inquiry about the particular incidents
described in the article. This difference is material because it significantly changes the
meaning of Nelson’s admission and apology. As such, it would support a finding of
actual malice.
Defendants contend the quoted material is insufficient to support a cause of action
for defamation because “there is no issue here of an alteration of a quotation at all.
Nelson says the meaning of the quotations was distorted, but he cites no authority for the
proposition that a dispute over the meaning of a quotation is sufficient to show actual
malice where the quotation was not altered.” (Internal record reference omitted.) We
believe Masson is precisely such authority. As in Masson, the alleged falsity is not the
quoted words themselves but the context in which the quoted words are placed, such that
they appear to mean something Nelson said they did not. As in Masson, therefore, the
alteration, if it occurred, is sufficient to support Nelson’s defamation claim.
Citing Christian Research, supra, 148 Cal.App.4th 71, defendants also contend
that Nelson’s declaration was insufficient to establish that Dohrmann subjectively knew
that the quoted statement was limited to certain events. In other words, defendants claim
that even if Nelson’s declaration establishes what Nelson actually said to Dohrmann, it

38
cannot establish what Dohrmann heard or understood, and thus it cannot prove that
Dohrmann intentionally misrepresented the conversation.
We do not agree. In Christian Research, Christian Research Institute (CRI) and
its president, Hank Hanegraaff, sued for defamation after defendant published an article
stating that Hanegraaff “‘has become the focus of a federal criminal mail fraud
investigation.’” (Christian Research, supra, 148 Cal.App.4th at p. 77.) The plaintiff
filed an anti-SLAPP motion supported by his own declaration stating, among other
things, that before printing the article, he had called the Pasadena postal inspector’s office
and spoken with “Debra,” who said her office was “investigating” a statement by CRI
“‘on the basis of “mail fraud.”’” (Ibid.) In opposition to the motion, CRI submitted
copies of letters received from the Office of the Inspector General (OIG) of the United
States Postal Service (USPS) and other agencies in response to Freedom of Information
Act (FOIA) requests; each letter said that the agency had no investigative records
concerning defendant. (Id. at p. 79.)
The Court of Appeal held that CRI’s evidence did not establish actual malice
because, although the FOIA response gave rise to an inference that the defendant
fabricated his conversation with “Debra,” the inference lacked sufficient strength to meet
the clear and convincing standard. It explained: “[T]he USPS FOIA response does not
unequivocally state the USPS has no documents concerning an investigation of either of
the plaintiffs, but only that the responder ‘could not locate any records’ of any
investigation in her search of the ‘USPS OIG, Investigations Office and the Hotline
complaint desk . . . .’ Thus, the response does not purport to foreclose the possibility that
documents pertaining to the investigation Debra mentioned may exist, but are kept in a
location other than those searched. [¶] The USPS FOIA response also does not negate
the possibility that [defendant] simply misunderstood Debra. Specifically, Debra’s
statement that ‘she was aware of the claims in [plaintiff’s] fundraising letter and that her
office was “investigating” it on the basis of “mail fraud,”’ was ambiguous. One could
reasonably interpret the statement to mean either that her office was investigating
whether the purported misdirection of mail described in the CRI fundraising letter

39
constituted mail fraud, or was investigating whether the letter itself constituted mail
fraud.” (Christian Research, supra, 148 Cal.App.4th at pp. 87-88, fn. omitted.) The
court noted, however, that the actual malice barrier “although formidable, is not
insurmountable,” and suggested that plaintiffs “might have met their burden, for example,
by submitting a declaration from an official at the Pasadena postal inspector’s office that
no one named Debra [the employee with whom defendant said he spoke] worked there
during the time in question, or a declaration from Debra stating she spoke with
[defendant] but did not tell him her office was investigating the CRI letter.” (Id. at p. 93.)
Assuming without deciding that the actual malice barrier is as “formidable” as
Christian Research suggests, we conclude it was met here. As we have said, Christian
Research suggested that plaintiffs could have met their burden by submitting Debra’s
declaration “stating she spoke with [defendant] but did not tell him her office was
investigating the CRI letter.” (Christian Research, supra, 148 Cal.App.4th at p. 93.)
That is, in effect, what Nelson did in the present case—he submitted a declaration stating
that he spoke with Dohrmann but did not say what Dohrmann claimed he said. His
statement is sufficient to support an inference that Dohrmann must have known that the
quoted statement was limited to certain events. That is, if in fact Dohrmann never asked
Nelson about any of the specific incidents, Dohrmann had to have known that Nelson’s
admission and apology could not have referred to those incidents.

“Stalk his targets.” The article says Nelson did not deny stalking teammates on
the court: “Nelson often reacted to hard fouls or calls against him in practice by
committing violent acts against teammates. He did not deny to [Sports Illustrated] that he
would stalk his targets, even running across the court, away from a play, to hit someone.”
Nelson says this description misrepresents the interview: “[Dohrmann] did not
reference or ask me about his to-be-published characterization of me as ‘a classic bully,
targeting teammates who weren’t as athletically gifted as he and tormenting the support
staff,’ the ‘one player [who] intentionally injured teammates but received no
punishment,’ someone who ‘often reacted to hard fouls or calls against him in practice by

40
committing violent acts against teammates’ and someone who ‘stalk[ed] his targets, even
running across the court, away from a play, to hit someone.’”
The article suggests that Nelson was asked about and failed to deny “stalk[ing]”
teammates; Nelson’s declaration says he was never asked about the alleged “stalk[ing]”
and thus had no opportunity to deny it. The difference is material and, if credited by a
jury, could support a finding of malice.

Honeycutt urination incident: According to the article, “[w]hen asked by [Sports
Illustrated] about the [Honeycutt urination incident], Nelson said, ‘I would dispute that
that is exactly what happened, but I understand people would say that is what happened.
But I think, most of all, you should know that Tyler [Honeycutt] and I are still friends.’”
Nelson’s declaration says the following about this incident: “At the end of our
telephone conversation, Dohrmann told me that he had ‘heard’ that I had urinated on
Tyler Honeycutt’s bed and clothing on New Years’ Eve. I interrupted him and asked him
why he would believe such a story. I told him that the story was nonsense and made
absolutely no logical sense. I told him that nothing of the sort happened, that I have
never done and would never do such a thing, and that Honeycutt and I remained friends
to this day. Dohrmann paused, and I felt that he was not pleased with my answer.
Dohrmann then abruptly thanked me for my time and ended the telephone call. I never
heard from him again, nor did anyone else contact me on Defendants’ behalf with respect
to this article prior to its publication.”14

14
We do not mean to suggest, of course, that reporting the alleged incidents in the
face of plaintiff’s express denial by itself establishes malice. To the contrary: “[D]enials
alone do not establish malice. ‘[T]he press need not accept “denials, however vehement;
such denials are so commonplace in the world of polemical charge and countercharge
that, in themselves, they hardly alert the conscientious reporter to the likelihood of error.”
[Citation.]’ (Harte-Hanks Communications v. Connaughton [(1989)] 491 U.S. [657,]
692, fn. 37.) ‘A denial only serves to buttress a case for actual malice when there is
something in the content of the denial or supporting evidence produced in conjunction
with the denial that carries a doubt-inducing quality.’ (Smolla, Law of Defamation
(Fn. continued.)

41
 If Nelson’s account is credited, it could support a finding of actual malice. The
claimed alteration is subtle, but significant: Although Nelson says he firmly denied the
story, telling Dohrmann that “nothing of the sort happened,” the article suggests that
Nelson’s denial was far more ambiguous (“‘I would dispute that that is exactly what
happened’”) and that Nelson admitted that “‘I understand people would say that is what
happened.’” Because the difference is material, it could support a finding of actual
malice.

(c) Defendants’ declarations do not prove absence of actual
malice
Defendants contend that the detailed declarations of Dohrmann and Schecter
established that defendants “subjectively and justifiably believed the Article’s statements
about Nelson were true.” Most of the statements in the declarations on which defendants
rely—use of multiple sources, call log, review of other published sources, attempts to
contact other UCLA players, review by editors, and fact-checking consistent with Sports
Illustrated’s standard practices—are relevant to defendants’ reasonable belief in the
accuracy of the third party accounts of Nelson’s misconduct, not Nelson’s asserted
admission and apology. The only exception is Dohrmann’s and Schecter’s statements
that when the article was published, they subjectively believed that all the statements
contained in the article were truthful and substantiated. While this state-of-mind
testimony is relevant to actual malice, it is not conclusive. (E.g., People v. Harbert
(2009) 170 Cal.App.4th 42, 58 [jury was entitled to reject defendant’s testimony as to his
state of mind].)
Defendants cited Christian Research, supra, 148 Cal.App.4th 71, for the
proposition that to defeat the anti-SLAPP motion, Nelson must negate even the
possibility that the article’s alleged misstatements resulted from an innocent

(2d ed. 2009) § 3:65.50, p. 3-96, fn. omitted.)” (Young v. CBS Broadcasting, Inc. (2012)
212 Cal.App.4th 551, 564.)

42
misunderstanding, rather than a deliberate falsification. We do not agree that the
plaintiff’s burden is as high as defendants suggest. To require a plaintiff to negate the
possibility that a misstatement was made without malice before any discovery has taken
place would, in effect, permit a defamation defendant to prevail on an anti-SLAPP
motion merely by attesting to the lack of malicious intent. We do not believe this result
is required by the “breathing space” granted the First Amendment.

3. Because We Have Concluded That Nelson Demonstrated a Prima
Facie Case of Actual Malice With Regard to His Own Statements to
Dohrmann, We Need Not Address the Remainder of the Article’s
Alleged Defamatory Statements
To defeat defendants’ anti-SLAPP motion, Nelson need not demonstrate that every
alleged defamatory statement was made with actual malice. “To satisfy the second prong
[of the anti-SLAPP test], ‘a plaintiff responding to an anti-SLAPP motion must “‘state[]
and substantiate[] a legally sufficient claim.’” [Citation.] Put another way, the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.”’ (Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821.)” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
“‘[N]ot every word of an allegedly defamatory publication has to be false and
defamatory to sustain a libel action. See Masson[, supra, 501 U.S. at p.] 510
(interpreting California law, the Court explained, “[T]he test of libel is not quantitative; a
single sentence may be the basis for an action in libel even though buried in a much
longer text . . . .”).’ (Kaelin v. Globe Communications Corp. (9th Cir. 1998) 162 F.3d
1036, 1040.) ‘“Put another way, the statement is not considered false unless it ‘would
have a different effect on the mind of the reader from that which the pleaded truth would
have produced.’ [Citations.]” [Citation.]’ (Hughes v. Hughes (2004) 122 Cal.App.4th
931, 936.) Or yet another way: ‘[i]f any material part be not proved true, the plaintiff is
entitled to damages in respect to that part.’ (Shumate v. Johnson Publishing Co. (1956)

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139 Cal.App.2d 121, 132, italics added.)” (Bently Reserve LP v. Papaliolios (2013) 218
Cal.App.4th 418, 434-435 [on the basis of evidence that a single statement in longer
internet post was false and defamatory, “plaintiffs succeeded in carrying their minimal
burden under the anti-SLAPP statute as to probable merit of their libel claim”]; see also
Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1338 [“‘not every
word of an allegedly defamatory publication has to be false and defamatory to sustain a
libel action. . . . “[T]he test of libel is not quantitative; a single sentence may be the basis
for an action in libel even though buried in a much longer text.”’”].)
As we have said, Nelson has demonstrated a prima facie case of actual malice with
regard to Nelson’s alleged statements to Dohrmann admitting to and apologizing for the
misconduct the article describes. Having so concluded, we do not address whether
Nelson has also shown malice with regard the remainder of the article’s asserted
defamatory statements.

IV. Remaining Causes of Action
A. False Light
The parties dispute whether actual malice is an element of plaintiff’s false light
claim: Defendants claim that malice is a necessary element of false light, while Nelson
contends it is not. In light of our conclusion that Nelson has established a prima facie
case of actual malice, we need not resolve the dispute.

B. Intentional Infliction of Emotional Distress
Nelson’s opening brief sets out the elements of a cause of action for intentional
infliction of emotional distress, but makes no substantive argument why the trial court
erred in dismissing this cause of action. Any such argument therefore is forfeited. (See,
e.g., Nielsen v. Gibson (2009) 178 Cal.App.4th 318, 324 [“[A]ppellant must not only
present an analysis of the facts and legal authority on each point made, but must also
support arguments with appropriate citations to the material facts in the record. If he fails
to do so, the argument is forfeited.”].)

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 DISPOSITION

The order granting the special motion to strike and judgment are reversed with
regard to the first and second causes of action for defamation and false light. Plaintiff is
awarded his costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON, J.*

We concur:

WILLHITE, Acting P. J.

MANELLA, J.

*
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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