Filed 5/25/22 Calvert v. Fox Television Stations, LLC CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
JAY W. CALVERT et al., B310772
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 20STCV21742)
v.
FOX TELEVISION STATIONS,
LLC et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County, Stephanie M. Bowick, Judge. Affirmed in part,
reversed in part, and remanded with directions.
Davis Wright Tremaine, Kelli L. Sager, Dan Laidman and
Sarah Burns for Defendants and Appellants Fox Television
Stations, LLC, William Melugin, Daniel Leighton and Kris
Knutsen.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
Defendant and Appellant Michael Houston.
Johnson & Johnson, Neville L. Johnson, Douglas L.
Johnson, Aleeza L. Marashlian; and Rodney A. Smolla for
Plaintiffs and Respondents.
_______________________
Fox Television Stations, LLC (Fox), William Melugin,
Daniel Leighton, and Kris Knutsen (collectively, the Fox
defendants) and Michael Houston appeal from orders denying
their special motions to strike (Code Civ. Proc., § 425.16; anti-
SLAPP statute)1 the complaint filed by Dr. Jay W. Calvert, a
nationally recognized plastic surgeon, and Jay Calvert, M.D.,
Professional Corporation (the professional corporation)
(collectively, the Calvert plaintiffs). This case arises from the Fox
defendants broadcasting and publishing news reports about a
civil lawsuit filed against Dr. Calvert by his former patient
Natalie West alleging insurance fraud and medical battery. The
reports included statements by Houston that Dr. Calvert had
similarly committed acts of insurance fraud in treating him. In
response, the Calvert plaintiffs sued the Fox defendants and
Houston for defamation. The trial court found that although the
defamation claims arose from protected activity, the Calvert
plaintiffs had shown a probability of prevailing on their claims.
On appeal, the Fox defendants and Houston contend Fox’s
reporting, including its interview with Houston, is absolutely
1 “SLAPP is an acronym for ‘strategic lawsuits against public
participation.’” (City of Montebello v. Vasquez (2016) 1 Cal.5th
409, 413, fn 2.)
2
privileged under Civil Code section 47, subdivision (d),2 as a fair
and true report of a judicial proceeding. Further, the Calvert
plaintiffs failed to plead and prove actual malice. The Fox
defendants and Houston also argue several of the statements at
issue do not constitute actionable defamation.
We agree the Calvert plaintiffs failed to carry their burden
to show probability of success on the merits of their defamation
claims against the Fox defendants, and we reverse the trial
court’s order denying the Fox defendants’ special motion to
strike. However, as to Houston, we conclude Dr. Calvert (but not
his professional corporation) carried his burden to show
probability of success on his claims against Houston. We
therefore affirm the trial court’s order denying Houston’s special
motion to strike as to Dr. Calvert but reverse as to the
professional corporation.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Fox Defendants’ Reporting on Dr. Calvert3
1. West’s lawsuit against Dr. Calvert
On May 31, 2018 West filed a lawsuit against Dr. Calvert,
the professional corporation, the University of Southern
California (USC), and others, alleging causes of action for fraud,
2 All further undesignated statutory references are to the
Civil Code.
3 The factual background is taken from the undisputed facts
alleged in the complaint and the declarations and documents
submitted in support of and in opposition to the special motions
to strike.
3
medical battery, breach of contract, and forcible sexual
penetration of an unconscious person with a foreign object.4
(West v. Calvert et al. (Super. Ct. Los Angeles County, 2018,
No. BC708415).) West alleged in her second amended complaint
that in 2013 Dr. Calvert performed a cosmetic nasal surgery to
reconstruct West’s nose after a failed reconstructive surgery by
another doctor. West paid for the surgery in full, but Dr. Calvert
fraudulently billed West’s medical insurer for the procedure by
falsely characterizing the surgery as a medically necessary
correction of a nasal airway obstruction.
West alleged that after the surgery, Dr. Calvert told her the
surgery had been “a complete success” but he needed to do two
“‘tweaks’” in a second surgery. From 2013 through 2017,
Dr. Calvert persuaded West to undergo 12 additional
unnecessary and harmful nasal surgeries, in order to bill West’s
insurance carrier for additional procedures. West alleged these
surgeries included “multiple unconsented procedures.” Further,
Dr. Calvert fraudulently double billed for each surgery, requiring
West to pay out of pocket while also billing West’s insurance
carrier for the same work. West alleged Dr. Calvert “essentially
treat[ed]” West’s health insurance policies as “his own personal
ATM machine.”
West alleged she consented to have Dr. Calvert perform a
procedure on May 31, 2017, but she later learned a USC fellow
had performed the surgery. West also alleged that following a
nasal surgery performed by Dr. Calvert on September 16, 2014,
she suffered severe uterine cramping and discharge. West
4 Only the Fox defendants’ and Houston’s motions to strike
the Calvert plaintiffs’ complaint are at issue in this appeal.
4
alleged she was sexually assaulted while under anesthesia
during the procedure by an unknown USC student, resident, or
fellow who was “attempt[ing] to practice some unknown medical
procedure involving [West’s] uterus without her prior knowledge
or consent.” (Italics omitted.) West alleged Dr. Calvert failed to
prevent the sexual assault.
2. Letters from Dr. Calvert’s counsel to Leighton and
Melugin
On April 25, 2019 Dr. Calvert’s attorney, Arthur H. Barens,
in response to an inquiry regarding Fox-owned television station
KTTV’s intention to broadcast a report on West’s allegations
against Dr. Calvert, wrote to KTTV senior producer Leighton,
requesting Leighton review West’s medical files before airing the
report. Barens denied Dr. Calvert “acted inappropriately in
either his medical treatment or billing practices.” Barens
attached a September 25, 2017 letter from Dr. Grant R.
Fairbanks to Dr. Calvert regarding West. Dr. Fairbanks wrote
he had consulted with West in September 2017 regarding her
chronic nasal infection. Dr. Fairbanks had previously treated
West in 2009 to remove pieces of a nasal implant. West told
Dr. Fairbanks that Dr. Calvert had put Gore-Tex spacers in her
nose. But Dr. Fairbanks did not find any reference to Gore-Tex
in West’s medical file, and he told her he did not believe Dr.
Calvert would put Gore-Tex in her nose. Dr. Fairbanks declined
to take West as a patient because of West’s “past history of
noncompliance” in failing to undergo additional surgeries
Dr. Fairbanks had recommended.
On May 10, 2019 Barens wrote to Leighton and KTTV
investigative reporter and anchor Melugin, stating, “For
5
approximately the past three (3) weeks I have received dozens
and dozens of calls from Mr. Leighton asking questions regarding
my client Dr. Calvert in conjunction with your subject Natalie
West . . . .” Barens wrote West’s claims were “unsupportable,”
“objectively disprovable,” and “based on fantasy and fiction.”
Barens asserted as to West’s allegations of forcible sexual
penetration, “The utter absurdity of this allegation should cause
concern and hesitation to any reputable, legitimate news agency
. . . .” Barens urged Leighton and Melugin not to quote “the
rantings of an obviously disturbed individual.”
On May 13, 2019 Barens again wrote to Leighton and
Melugin, stating “West signed [c]onsents for each and every
procedure/surgery that [Dr. Calvert] provided” and all insurance
billings were “consistently and comprehensively authorized by
Ms. West.” Barens referred to West as “a woman whose
credibility is totally suspect as evidenced by the fantasy
allegations of sexual penetration by a foreign object as referenced
in her complaint.” Barens further denied any “resident or
attending surgeons from USC ever performed any procedure on
Ms. West.”
3. The May 13, 2019 Report
On May 13, 2019 KTTV broadcast a news report on West’s
allegations of fraud and medical battery against Dr. Calvert.
Melugin opened the segment, “[T]he Beverly Hills plastic surgeon
we’ve been investigating is widely considered to be one of the top
[plastic] surgeons in the entire country. . . . But some of his
former patients alleged there’s another side of this doctor that
you need to know about.” Melugin identified West as “[a] patient
in pain taking legal action after accusations of unconsented,
6
unnecessary, and damaging surgical procedures.” Melugin
reported West’s “allegations” that Dr. Calvert performed
unnecessary and harmful nasal surgeries on West and double
billed West and her insurer; he falsely characterized the
surgeries as medically necessary for nasal airway obstructions;
and he allowed a USC medical fellow to perform a surgery on
West without West’s consent. The report included excerpts from
a pre-recorded interview with West and her attorney Leslie
Hakala, in which each made statements regarding West’s
allegations. At several points during the report, descriptions of
West’s allegations by Melugin, West, or Hakala were
accompanied by background graphics showing related portions of
West’s second amended complaint against Dr. Calvert.
Melugin reported Dr. Calvert declined to be interviewed for
the segment, but Melugin included Barens’s statement denying
the allegations: “‘Every procedure performed by Dr. Calvert on
every patient was consented to in writing prior to the procedure
by the respective patient. Dr. Calvert has never allowed or
permitted any resident or fellow to perform surgery on his
patients which is verified by patient medical records. This case
will be vigorously defended and ultimately rejected by the court.’”
The report also included excerpts from a pre-recorded
interview with Houston. Melugin identified Houston as a former
patient who was not a party to West’s lawsuit. Houston stated
Dr. Calvert falsely claimed in a surgical report that the cosmetic
nasal surgery he performed on Houston was necessary to correct
a nasal airway obstruction caused by an accident in which
Houston dropped a box on his face. Houston denied the injury,
explaining he simply “didn’t like the way [his] nose looked.”
Houston alleged Dr. Calvert had similarly mischaracterized other
7
cosmetic surgeries so he could bill Houston’s insurer for the
procedures. Further, Houston was afraid of Dr. Calvert because
when Houston confronted him about his billing practices,
Dr. Calvert threatened Houston, stating, “[I]f I go down for
insurance fraud I’m taking you with me.” Melugin added at the
end of the report, “Calvert’s attorney declined to respond to
Houston’s allegations when asked for a comment by [KTTV].”
Melugin also stated USC sponsored a plastic surgery
fellowship program run by Dr. Calvert, in which USC residents
and fellows received training from Dr. Calvert. Melugin reported
Dr. Calvert identified himself on his social media profile as a
clinical associate professor at USC’s Keck School of Medicine, and
Dr. Calvert’s name appeared as a faculty surgeon on USC’s
website. Melugin added that in a statement to KTTV, USC
“appeared to distance [itself] from Dr. Calvert” by clarifying Dr.
Calvert is not an associate professor or regular staff member of
USC, but rather is “‘a voluntary faculty member’” who was not
employed or paid by USC. Moreover, although fellows received
access to the medical school’s online library and academic
lectures, according to USC, “[F]ellows in this program are not
associated with the University.”
Melugin reported further that in 2013 the Orange County
District Attorney filed felony charges against Dr. Calvert,
alleging Dr. Calvert “fabricat[ed] documents and perform[ed]
unnecessary surgery as part of an insurance fraud scheme.”
Melugin stated the charges were dropped in 2014, but deputy
district attorney Shaddi Kamiabipour was quoted in an interview
with the Orange County Register as saying the charges were not
dismissed based on Dr. Calvert’s innocence, but rather, because
the fraud appeared to be “a reasonably isolated incident.”
8
Melugin reported the Orange County district attorney’s office in a
statement stood by Kamiabipour’s prior comment that “Calvert
was not innocent.”
KTTV published a written version of the report on its
website.
4. The May 15, 2019 Report
On May 15, 2019 KTTV broadcast a second news report on
West’s allegations against Dr. Calvert. Melugin reported, “A lot
of new details [are] coming out after our investigation into Dr.
Jay Calvert first aired on Monday night.” Melugin reported USC
had “removed all affiliation with [Dr. Calvert] off of their plastic
surgery website.” Melugin stated Hakala held a press conference
that day, in which she indicated more than 20 “new alleged
victims” had contacted her to make similar allegations of
insurance fraud and unnecessary surgeries. In footage of the
press conference, Hakala opined USC would not have been in “a
huge rush” to distance itself from Dr. Calvert if USC had full
confidence in him.
Melugin repeated Barens’s earlier statement denying the
allegations. KTTV published a written version of the report on
its website.
5. Dr. Calvert’s demand for retraction
On May 30, 2018 Neville L. Johnson, attorney for
Dr. Calvert, sent a letter to Melugin, KTTV news director Kris
Knutsen, and the Fox legal department demanding retraction of
the May 13 and 15 reports and accompanying online articles.
Johnson objected to the “entire broadcasts” as “false” and “grossly
libelous and slanderous” of Dr. Calvert. Johnson identified as
9
false the reports’ statements Dr. Calvert defrauded West’s and
Houston’s insurers, performed unnecessary procedures or made
false diagnoses to justify surgeries as medically necessary, and
allowed USC fellows to operate on West.5
Johnson asserted Houston “made identical allegations to
the Medical Board of California, which rejected them in their
entirety.” Johnson also objected to the reference in the May 13
report to the criminal charges against Dr. Calvert that had been
filed and later dismissed by the Orange County District Attorney.
The Fox defendants made no retraction.
B. Dr. Calvert’s Complaint Against the Fox Defendants and
Houston
On June 9, 2020 the Calvert plaintiffs filed a complaint
against the Fox defendants and Houston, alleging a single cause
of action for libel. The complaint alleged 60 statements made in
the May 13 and 15 reports were “[f]alse [a]ccusations.” The
statements included that Dr. Calvert engaged in insurance fraud,
prescribed unnecessary surgeries, committed medical
malpractice, threatened patients, allowed USC students to
perform surgeries on his behalf, and misrepresented his
relationship with USC. The statements were defamatory, and
the Fox defendants and Houston published them “with negligence
and with actual malice, defined as knowledge of falsity or
reckless disregard for truth or falsity.” The complaint further
alleged Houston and the Fox defendants were aware of Houston’s
complaint against Dr. Calvert to the Medical Board of California
5 In his letter, Johnson also disputed West’s allegations of
forcible sexual penetration, but those allegations were not
discussed in the reports or articles.
10
(Medical Board) and the complaint “was defeated immediately,
exonerating Dr. Calvert.”
The complaint also alleged the Fox defendants “falsely
communicated to viewers and readers that it had raised
Houston’s accusations . . . with Dr. Calvert and his attorneys, but
that they had refused to respond to Fox’s inquiries.” Instead, the
Fox defendants “deliberately hid from Dr. Calvert and his
attorney the fact that Houston was making accusations to Fox
about Dr. Calvert.” The Fox defendants’ omission “creat[ed] the
false impression that Dr. Calvert and his attorney had refused to
comment on Houston’s accusations, [which] constituted knowing
falsehood, and a conscious turning of a blind eye to evidence that
would have refuted Houston’s claims, all highly probative of
actual malice.” Further, the Fox defendants ignored “powerful
evidence” of the falsity of West’s claims that had been supplied by
Dr. Calvert’s attorneys. In addition, the Fox defendants led
viewers to believe the report was based on Fox’s own
investigation.
C. The Fox Defendants’ and Houston’s Special Motions To
Strike
In August and September 2020 the Fox defendants and
Houston separately filed special motions to strike the complaint.
They argued the Calvert plaintiffs’ defamation claims arose from
protected activity in furtherance of their free speech in
connection with an issue of public interest. Further, the Calvert
plaintiffs could not establish a probability of prevailing on their
claims because the reports were protected by the fair report
privilege under section 47, subdivision (d), and the statements
were mere opinion, substantially true, or not defamatory.
11
Further, the Calvert plaintiffs failed to comply with section 48a’s
requirement that they timely demand a retraction, thereby
limiting their recovery to special damages, which they had failed
to plead. In addition, the Calvert plaintiffs failed adequately to
plead the statements were made with actual malice, which was
required based on Dr. Calvert’s status as a public figure. All
claims by the professional corporation failed because none of the
allegedly defamatory statements concerned the corporation.
Houston also argued the statements he made concerned West’s
lawsuit, the Orange County District Attorney’s felony complaint,
and Houston’s Medical Board complaint, all of which were
protected by the litigation privilege under section 47,
subdivision (b).
The Fox defendants attached as exhibits to their motion
copies of West’s second amended complaint against Dr. Calvert
and the felony complaint filed by the Orange County District
Attorney. The Fox defendants also attached an article from the
Orange County Register stating the felony charges against Dr.
Calvert were dismissed, but quoting deputy district attorney
Kamiabipour as saying, “‘We’re not dealing with a situation of me
dismissing the case because he’s innocent . . . .’” In the article,
Kamiabipour explained the charges were dropped “because [Dr.]
Calvert agreed to pay an undisclosed amount of restitution to
patients” and “agreed to change some of his practices to ensure
patients consent to all procedures and know what [Dr.] Calvert is
billing.”
In a declaration filed in support of his special motion to
strike, Houston averred, “I filed a complaint against Calvert with
the Medical Board of California because of the mistakes and
possible malpractice related to the various jaw implants and
12
surgeries . . . . The complaint only had to do with my jaw implant
surgeries and did not have to do with my other procedures or
visits. The complaint also had nothing to do with Calvert’s
billing practices or allegations of fraud or other malpractice.”
Houston declared that he confronted Dr. Calvert about his billing
practices in late 2018, after learning Dr. Calvert had billed
Houston’s insurer in connection with a cosmetic jaw implant
procedure. In response, Dr. Calvert told Houston “that if he went
down for insurance fraud, he would take [Houston] down with
him so [Houston] shouldn’t push the issue.” Houston understood
this as a threat to his “personal and financial safety.” Houston
continued, “I do not bear any ill-will towards Dr. Calvert in his
personal or professional capacity or towards his company.”
In their oppositions, the Calvert plaintiffs did not dispute
that Dr. Calvert was a public figure, or that their claims arose
from the defendants’ protected activity in broadcasting
information on an issue of public interest. Instead, the Calvert
plaintiffs argued the fair report privilege did not apply; the
statements were not substantially true; Johnson’s retraction
letter to the Fox defendants met the requirements of section 48a;
section 48a did not apply to Houston; and Dr. Calvert met his
burden to plead and prove actual malice as to the Fox defendants
and Houston. As to 15 of the allegedly “false accusations”
identified in the complaint, the Calvert plaintiffs asserted the
statements were included only for context. The Calvert plaintiffs
failed to respond to the argument the allegedly defamatory
statement did not concern Dr. Calvert’s professional corporation.
Dr. Calvert submitted declarations in support of the
Calvert plaintiffs’ oppositions. He attached to his declaration in
opposition to the Fox defendants’ motion portions of West’s and
13
Houston’s medical records, consent forms, insurance
authorizations, and billing histories, which he asserted
contradicted their allegations. Dr. Calvert also attached to both
declarations copies of a February 8, 2017 letter from the Medical
Board with the subject “Michael Jay Houston.” The letter states,
“Dear Dr. Calvert: [¶] This is to advise you the Medical Board of
California has concluded its review of the complaint filed against
you alleging you provided negligent treatment of the above-
named patient. No further action is anticipated and the
complaint file has been closed.” Houston objected to admission of
the February 8, 2017 letter as hearsay. Dr. Calvert averred in
each declaration, “I never threatened Houston physically nor
have I ever threatened him with criminal or civil liability or in
late 2015 or any time regarding any alleged insurance fraud.”
The Calvert plaintiffs requested judicial notice of the
transcripts of the March 2 and May 18, 2020 depositions of West
and the December 15, 2019 deposition of Dr. Fairbanks, which
were taken as part of West’s lawsuit against Dr. Calvert.
On February 1, 2021 the trial court denied the special
motions to strike. In its written rulings, the trial court granted
the Calvert plaintiffs’ request for judicial notice of the West and
Dr. Fairbanks deposition transcripts. The court overruled
Houston’s evidentiary objections to the Medical Board letter. The
court declined to analyze and denied the motions to strike 13 of
the statements characterized by the Calvert plaintiffs in their
oppositions as nonactionable allegations made solely for context.
The trial court found the remaining 47 statements
identified in the Calvert plaintiffs’ complaint fell within the scope
of Code of Civil Procedure section 425.16 because they “concerned
a public figure and a matter of public interest.” The court found
14
the fair report privilege did not apply to any of the statements.
As to West’s, Hakala’s, and Melugin’s statements regarding
West’s allegations against Dr. Calvert, the court found the
statements did not directly reference West’s civil complaint or
purport solely to be allegations from the lawsuit. The court
reasoned the statements “derived from an interview” and were
“not attributed to any judicial or official proceeding,” and
therefore, the statements fell “outside of and expand the
allegations” in West’s complaint.
As to Houston’s allegations against Dr. Calvert, the trial
court found, “Houston is making his own independent
accusations,” which “are not a fair report of a judicial or official
proceeding involving Mr. Houston.” Further, Houston’s
statements were not protected by the litigation privilege because
the statements were not made in any official proceeding and the
privilege does not protect statements to the media. As to
Melugin’s reporting on the Orange County District Attorney’s
filing and dismissal of the criminal complaint against Dr.
Calvert, the court found the statements were not protected by the
fair report privilege because the post-dismissal comments did not
“reflect the ‘gist or sting’” of the criminal complaint or proceeding.
The trial court also found the Calvert plaintiffs adequately
pleaded and proved actual malice. The court explained the pre-
reporting letters from Barens to Leighton and Melugin showed
the “story regarding West and Houston [was] ‘worthy of doubt.’”
The court also considered West’s and Houston’s medical records
and Dr. Calvert’s declaration in concluding, “Fox failed to
sufficiently review pertinent medical and insurance records . . .
before broadcasting and publishing its stories about Calvert.”
Further, the Fox defendants’ reliance on biased sources (West
15
and Houston) evidenced their actual malice. The court found
Melugin’s statement during the May 13 report that “‘Dr. Calvert’s
attorney declined to respond to Houston’s allegations when asked
for a comment by [KTTV],’” followed quickly by the statement
“‘it’s not the first time that Calvert faced allegations of fraud,’”
gave viewers the impression the accusations were true. In
addition, the deposition testimony of West and Dr. Fairbanks
supported Dr. Calvert’s assertion “he did not put an ‘unknown
material’ or Gore-Tex in Ms. West’s nose.” The court further
relied on Dr. Fairbanks’s deposition testimony that West did not
receive inappropriate medical care and West’s deposition
testimony she was not harmed by Dr. Calvert billing her insurer.
As to Houston, the court found the Calvert plaintiffs had
shown a probability they could produce clear and convincing
evidence Houston made his statements regarding Dr. Calvert
with actual malice. The court observed, “It is undisputed that
Houston was not relying on information or claims by others, but
rather unequivocally stated that he had first-hand experience
with Dr. Calvert as to his allegations of misconduct, fraud and
greed.” The court further reasoned, “Plaintiffs presented
sufficient admissible evidence demonstrating malice by showing
that Houston did not truthfully quote Dr. Calvert.”
The Fox defendants and Houston timely appealed.
DISCUSSION
A. Special Motions To Strike
A cause of action arising from an act in furtherance of a
defendant’s constitutional right of petition or free speech in
connection with a public issue is subject to a special motion to
strike unless the plaintiff demonstrates a probability of
16
prevailing on the claim. (Code of Civ. Proc., § 425.16, subd. (b)(1);
see Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1009 (Bonni); Monster Energy Co. v. Schechter (2019) 7 Cal.5th
781, 788 (Monster Energy).) An “‘act in furtherance of a person’s
right of petition or free speech under the United States or
California Constitution in connection with a public issue’”
includes, in relevant part, “any . . . conduct in furtherance of the
exercise of . . . the constitutional right of free speech in connection
with a public issue or an issue of public interest.” (Code Civ.
Proc., § 425.16, subd. (e)(4).)
“Litigation of an anti-SLAPP motion involves a two-step
process. First, ‘the moving defendant bears the burden of
establishing that the challenged allegations or claims “aris[e]
from” protected activity in which the defendant has engaged.’
[Citation.] Second, for each claim that does arise from protected
activity, the plaintiff must show the claim has ‘at least “minimal
merit.”’ [Citation.] If the plaintiff cannot make this showing, the
court will strike the claim.” (Bonni, supra, 11 Cal.5th at p. 1009;
accord, Monster Energy, supra, 7 Cal.5th at p. 788.)
As part of the second step, we apply a “‘“summary-
judgment-like procedure.” [Citation.] The court does not weigh
evidence or resolve conflicting factual claims. Its inquiry is
limited to whether the plaintiff has stated a legally sufficient
claim and made a prima facie factual showing sufficient to
sustain a favorable judgment. It accepts the plaintiff’s evidence
as true, and evaluates the defendant’s showing only to determine
if it defeats the plaintiff's claim as a matter of law. [Citation.]
“[C]laims with the requisite minimal merit may proceed.”’”
(Sweetwater Union High School Dist. v. Gilbane Building
17
Co. (2019) 6 Cal.5th 931, 940 (Sweetwater); accord, Taus v.
Loftus (2007) 40 Cal.4th 683, 713-714 (Taus).)
“[A]t the second stage of an anti-SLAPP hearing, the court
may consider affidavits, declarations, and their equivalents if it is
reasonably possible the proffered evidence set out in those
statements will be admissible at trial. Conversely, if the evidence
relied upon cannot be admitted at trial, because it is categorically
barred or undisputed factual circumstances show inadmissibility,
the court may not consider it in the face of an objection. If an
evidentiary objection is made, the plaintiff may attempt to cure
the asserted defect or demonstrate the defect is curable.”
(Sweetwater, supra, 6 Cal.5th at p. 949.)
“We review de novo the grant or denial of an anti-SLAPP
motion.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067; accord, Monster Energy,
supra, 7 Cal.5th at p. 788.)
B. Defendants Carried Their Burden To Show Most of Their
Claims Arose from Defendants’ Protected Activity
The Calvert plaintiffs do not dispute that the Fox
defendants and Houston carried their burdens to show the
complaint’s defamation claims arose from the defendants’
protected activity. We agree as to most of the challenged
allegations. However, “[a]legations of protected activity that
merely provide context without supporting a claim for recovery,
cannot be stricken under the anti-SLAPP statute.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 394 (Baral); accord, Bonni, supra,
11 Cal.5th at p. 1012.) Therefore, the complaint’s allegations of
protected activity that provide only context for the Calvert
plaintiffs’ defamation claims must be disregarded for purposes of
18
the anti-SLAPP analysis (complaint ¶¶ 36, 38, 41-42, 46-47, 54,
60, 66, 68, 70, 72-74, 80). We proceed to analyze whether the
Calvert plaintiffs carried their burden to show a probability of
prevailing on their claims.
C. The Law of Defamation
The elements of a defamation claim are “‘“(a) a publication
that is (b) false, (c) defamatory, and (d) unprivileged, and that (e)
has a natural tendency to injure or that causes special damage.”’”
(Taus, supra, 40 Cal.4th at p. 720; accord, Murray v. Tran (2020)
55 Cal.App.5th 10, 37.) Additionally, “a libel plaintiff who is a
public figure must prove, by clear and convincing evidence, that
the defendant made the libelous statement with ‘“actual
malice”—that is, with knowledge that it was false or with
reckless disregard of whether it was false or not.’” (Edward v.
Ellis (2021) 72 Cal.App.5th 780, 793 (Edward); accord, Reader’s
Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256; Jackson
v. Mayweather (2017) 10 Cal.App.5th 1240, 1260 (Jackson).)
Libel, a form of defamation (§ 44, subd. (a)), “is a false and
unprivileged publication by writing, printing, picture, effigy, or
other fixed representation to the eye, which exposes any person
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.” (Id., § 45.) “In determining whether a statement
is libelous we look to what is explicitly stated as well as what
insinuation and implication can be reasonably drawn from the
communication.” (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803;
accord, Issa v. Applegate (2019) 31 Cal.App.5th 689, 703.) “[T]he
expression used as well as the ‘whole scope and apparent object of
the writer’ must be considered.” (Forsher, at p. 803; accord, Wong
19
v. Jing (2010) 189 Cal.App.4th 1354, 1373.) “[E]ach assertion of a
defamatory statement represents a specific act that could, on its
own, give rise to a claim for relief.” (Medical Marijuana, Inc. v.
ProjectCBD.com (2020) 46 Cal.App.5th 869, 886, fn. 11.)
D. The Professional Corporation Failed To Carry Its Burden
To Show a Probability of Prevailing on Its Claims Because
None of the Challenged Statements Concerned the
Professional Corporation
The Fox defendants and Houston contend none of the
allegedly defamatory statements concerned the professional
corporation. The Calvert plaintiffs make no argument to the
contrary.
“In defamation actions the First Amendment . . . requires
that the statement on which the claim is based must specifically
refer to, or be ‘of and concerning,’ the plaintiff in some way.”
(Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042;
accord, Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1160
[“‘The “of and concerning” or specific reference requirement limits
the right of action for injurious falsehood, granting it to those
who are the direct object of criticism and denying it to those who
merely complain of nonspecific statements that they believe
cause them some hurt.’”]; Ferlauto v. Hamsher (1999)
74 Cal.App.4th 1394, 1405 [statements by defendant that were
not directed at plaintiff are not actionable].) None of the
statements challenged in the complaint refers to the professional
corporation. The May 13 report identified Dr. Calvert as the
chief executive officer and president of the entity “Calvert M.D.
Incorporated,” which the report indicated billed West’s insurer
$32,000 in connection with West’s first nasal surgery performed
20
by Dr. Calvert, but the Calvert plaintiffs do not contend this
single reference to the professional corporation is actionable.
Because the professional corporation failed to carry its
burden to show any of the allegedly defamatory statements
concerned it, the trial court erred in denying the Fox defendants’
and Houston’s special motions to strike the defamation claims
brought by the professional corporation.
E. The Trial Court Erred in Denying the Fox Defendants’
Special Motion To Strike the Complaint as to Dr. Calvert’s
Claims
1. Dr. Calvert failed to show the challenged statements
regarding USC were not substantially true
Among the 60 statements identified in the complaint as
false accusations, nine by Melugin related to Dr. Calvert’s
relationship with USC.6 In their oppositions, the Calvert
plaintiffs argued three of these statements were actionable
(complaint ¶¶ 67, 69, 75), with the remaining six statements
providing context for the actionable statements (id. ¶¶ 66, 68, 70,
72-74). On appeal, the Fox defendants argue Dr. Calvert cannot
prevail on his claims based on the three remaining statements
because they are not materially false. Rather, the statements
“correctly relayed USC’s position that Calvert inaccurately
6 The complaint also identified as a false accusation the
statement by Hakala, “If [USC] didn’t have anything to hide and
[USC] had full confidence in [Dr.] Calvert, [USC] wouldn’t have
been in a huge rush to distance [itself] so completely from him.”
As we will discuss, Fox’s reporting of Hakala’s comments made at
the press conference regarding West’s civil complaint are
protected by the fair report privilege.
21
described their affiliation, and that USC subsequently removed
him from the school’s plastic surgery website.”
A plaintiff must prove the allegedly defamatory statements
are not substantially true. (Taus, supra, 40 Cal.4th at p. 720;
accord, Murray v. Tran, supra, 55 Cal.App.5th at p. 37; Jackson,
supra, 10 Cal.App.5th at p. 1262.) Dr. Calvert submitted no
evidence in opposition to the Fox defendants’ special motion to
strike to show Melugin’s statements regarding USC were not
substantially true. He has therefore failed to carry his burden to
show a probability of success on his defamation claims based on
these statements. (Monster Energy, supra, 7 Cal.5th at p. 788
[“[A] plaintiff seeking to demonstrate the merit of the claim ‘may
not rely solely on its complaint, even if verified; instead, its proof
must be made upon competent admissible evidence.’”].)
As to the six statements included for context, although they
must be initially disregarded as part of the anti-SLAPP analysis
because they merely provide context for the three statements
that should have been stricken, the trial court erred in failing to
grant the Fox defendants’ special motion to strike as to all nine
statements (complaint ¶¶ 66-70, 72-75). (Baral, supra, 1 Cal.5th
at p. 396 [as part of the prong 2 analysis, “[a]llegations of
protected activity supporting the stricken claim are eliminated
from the complaint, unless they also support a distinct claim on
which the plaintiff has shown a probability of prevailing”].)
22
2. The trial court erred in failing to apply the fair report
privilege to the Fox defendants’ reporting on West’s
allegations against Dr. Calvert, but the privilege does
not protect Houston’s allegations
(a) The fair report privilege
“Civil Code section 47, subdivision (d) confers an absolute
privilege on any fair and true report in, or a communication to, a
public journal of a judicial proceeding, or anything said in the
course thereof.” (Sipple v. Foundation For Nat. Progress (1999)
71 Cal.App.4th 226, 240 (Sipple); accord, Healthsmart Pacific,
Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 431 (Healthsmart)
[“When [the fair report privilege] applies, the reported
statements are ‘absolutely privileged regardless of the
defendants’ motive for reporting’ them.”].) “‘Fair and true’ in this
context does not refer to the truth or accuracy of the matters
asserted in the judicial proceedings, but rather to the accuracy of
the challenged statements with respect to what occurred in the
judicial proceedings.” (Healthsmart, at p. 434; accord, McClatchy
Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961,
975.)
“‘[A] media defendant does not have to justify every word of
the alleged defamatory material that is published. [Citation.]
The media’s responsibility lies in ensuring that the “gist or sting”
of the report—its very substance—is accurately conveyed.
[Citation.] Moreover, this responsibility carries with it a certain
amount of literary license. The reporter is not bound by the
straitjacket of the testifier’s exact words; a degree of flexibility is
tolerated in deciding what is a “fair report.”’” (Sipple, supra,
71 Cal.App.4th at p. 242; accord, Reader’s Digest Assn. v.
Superior Court, supra, 37 Cal.3d at p. 262, fn. 13 [“‘“It is well
23
settled that a defendant is not required in an action of libel to
justify every word of the alleged defamatory matter; it is
sufficient if the substance, the gist, the sting of the libelous
charge be justified.”’”]; J-M Manufacturing Co., Inc. v. Phillips &
Cohen LLP (2016) 247 Cal.App.4th 87, 99-100 (J-M
Manufacturing) [“the defendant is ‘permit[ted] a certain degree of
flexibility/literary license’: ‘“‘“If the substantial imputations be
proved true, a slight inaccuracy in the details will not prevent a
judgment for the defendant, if the inaccuracy does not change the
complexion of the affair so as to affect the reader of the article
differently than the actual truth would.”’”’”]; Balzaga v. Fox News
Network, LLC (2009) 173 Cal.App.4th 1325, 1337 [“The privilege
applies if the substance of the publication or broadcast captures
the gist or sting of the statements made in the official
proceedings.”].)
The accuracy of the challenged statements with respect to
what occurred in the judicial proceedings “is measured by the
natural and probable effect the statements would have on the
average person reading, viewing, or listening to the report.”
(Healthsmart, supra, 7 Cal.App.5th at p. 434; accord, Kilgore v.
Younger (1982) 30 Cal.3d 770, 777; J-M Manufacturing, supra,
247 Cal.App.4th at p. 100.) “Courts have construed the privilege
broadly, ‘mindful of the Legislature’s intent . . . “to preserve the
scarce resources of California’s courts [and] to avoid using the
courts for satellite litigation.’”” (Healthsmart, supra, 7
Cal.App.5th at p. 431; accord, J-M Manufacturing, supra,
247 Cal.App.4th at p. 101; Sipple, supra, 71 Cal.App.4th at p. 240
[“courts have construed Civil Code section 47, subdivision (d)
broadly”].) Further, “California courts have construed the
phrase, ‘judicial proceeding,’ broadly to include the filing of a
24
complaint. [Citations.] Thus, fair and true communications to
the news media about allegations in a complaint are covered by
the privilege.” (Healthsmart, at p. 432.)
“In general, whether a privileged occasion exists within the
meaning of Civil Code section 47, subdivision (d), is for the court
to decide; whether the report of the official proceedings itself is
“fair and true,” provided reasonable minds could disagree as to
the effect of the communication on the average reader or listener,
is a question of fact for the jury. (J-M Manufacturing, supra,
247 Cal.App.4th at p. 98.) However, as we explained in J-M
Manufacturing, “[a]lthough determining whether a
communication is privileged under Civil Code section 47,
subdivision (d), may properly be left to a jury in some instances,
appellate courts have not been reluctant to decide the fair report
privilege applies as a matter of law when the undisputed facts
are insufficient to support a judgment for the plaintiff.” (Id. at p.
99; see Healthsmart, at p. 431 [“When . . . ‘there is no dispute as
to what occurred in the judicial proceeding reported upon or as to
what was contained in the report,’ the question is one of law.”];
Kilgore v. Younger, supra, 30 Cal.3d at page 777.)
In J-M Manufacturing, supra, 247 Cal.App.4th at page 91,
for example, we reversed the trial court’s denial of the
defendant’s special motion to strike claims for defamation and
trade libel where the trial court had found it was a question of
fact for the jury whether the press release at issue was privileged
as a fair and true report of a judicial proceeding under section 47,
subdivision (d). We concluded the defendant’s press release
following a jury trial was, as a matter of law, a fair and true
report of the jury verdicts finding J-M Manufacturing had
knowingly misrepresented to the plaintiff’s clients that J-M
25
Manufacturing’s pipe had been manufactured and tested in a
manner assuring the pipe had the strength and durability
required by industry standards. (Id. at pp. 91, 105; see Kilgore v.
Younger, supra, 30 Cal.3d at page 777 [holding fair and true
report privilege applied as a matter of law where average reader
would not have read two newspaper articles discussing a report
by the Attorney General that listed 92 individuals who were
suspected of involvement in a wide variety of organized criminal
activities as meaning the plaintiff was involved in every listed
type of organized criminal activity, as opposed to the one crime of
which he had been convicted].) In this case, as in Kilgore and
J-M Manufacturing, we decide as a matter of law whether the
undisputed statements in the two broadcasts constituted fair
reports of the allegations in West’s second amended complaint.
Although the plaintiff bears the burden at the second step
of the anti-SLAPP analysis to show a probability of prevailing on
his or her claims, “the defendant bears the burden of proving the
privilege’s applicability.” (Neurelis, Inc. v. Aquestive
Therapeutics, Inc. (2021) 71 Cal.App.5th 769, 794; accord,
Hawran v. Hixson (2012) 209 Cal.App.4th 256, 278.)
(b) The fair report privilege protects most of the
challenged statements by West, Hakala, and
Melugin regarding West’s allegations against
Dr. Calvert
The Fox defendants contend Dr. Calvert cannot establish a
probability of prevailing on his defamation claims because the
reports are absolutely privileged as fair and true reports of a
judicial proceeding to a public journal (§ 47, subd. (d)(1)). We
agree most of the statements made by Melugin, West, and
26
Hakala pertaining to West’s second amended complaint are
privileged.
Dr. Calvert contends the trial court correctly found the
challenged statements were not protected by the fair report
privilege because they were not sufficiently attributed to West’s
lawsuit in the reports. We have reviewed videos of the two news
reports, and both broadcasts clearly identified West’s lawsuit as
the subject of the report and the source of West’s allegations. At
the outset of the May 13 report, Melugin identified West as “[a]
patient . . . taking legal action” and described West’s allegations
while a background graphic showed the caption page of the
second amended complaint against Dr. Calvert. The report later
specified West had sued Dr. Calvert and USC, and her second
amended complaint alleged causes of action for fraud and medical
battery. Further, the report on multiple occasions identified the
assertions made by West and Hakala as allegations or referred
directly to West’s lawsuit.
Likewise, in the opening moments of the May 15 report on
West’s and Hakala’s statements at the press conference, Melugin
stated, “As we reported, West is suing Beverly Hills plastic
surgeon Dr. Jay Calvert and USC for fraud and medical battery
after she accuses Calvert of performing unnecessary and
damaging procedures on her as part of an insurance fraud
scheme.” Thus, both reports clearly identify West’s lawsuit as
the source of West’s allegations. (See Healthsmart, supra,
7 Cal.App.5th at p. 436 [where reporter identified plaintiff’s
attorney near the outset of report and frequently referenced the
lawsuit with background images showing the complaint, the
average viewer would understand the attorney’s statements
referred to lawsuit’s allegations].)
27
Nor do statements by Melugin referring to the Fox
defendants’ “investigations” of Dr. Calvert remove the challenged
statements from the protection of the fair report privilege. In
context, a reasonable viewer would not understand the references
to investigations to mean the Fox defendants were adopting or
endorsing West’s allegations as their own or making an
independent assessments of Dr. Calvert’s wrongdoing. Rather,
the Fox defendants’ investigation is more naturally understood as
the aggregation of allegations against Dr. Calvert from several
sources, including West and Hakala, Houston, the Orange
County district attorney’s office, and USC. Further, the reports
clearly attribute each set of allegations to its source.
The Calvert plaintiffs also argue, as the trial court found,
the interviews and press conferences on which the broadcasts
were based do not qualify for protection under the fair report
privilege. The law is to the contrary. The Courts of Appeal have
consistently held statements to the press regarding pending
litigation in the form of interviews and press releases fall within
the privilege. (See Argentieri v. Zuckerberg (2017) 8 Cal.App.5th
768, 790 [attorney’s email to members of the press that fairly
described the allegations in malicious prosecution complaint was
protected by the fair report privilege]; Healthsmart, supra,
7 Cal.App.5th at p. 432 [attorneys’ statements on television and
radio about allegations in complaint were fair and true
communications to the news media covered by the privilege]; J-M
Manufacturing, supra, 247 Cal.App.4th at p. 105 [fair report
privilege protected law firm’s posttrial press release that
contained “self-promotion and puffery” but fell “comfortably
within the permissible degree of flexibility and literary license
afforded communications to the media concerning judicial
28
proceedings”]; Sipple, supra, 71 Cal.App.4th at pp. 245-246 [news
article was a fair and true report on custody proceedings
supported by court testimony, deposition testimony, and
interviews with the parties and their supporters].) Thus, the
statements made by West and Hakala in interviews and press
conferences included in the May 13 and 15 reports are protected
by the privilege, as long as the statements accurately convey the
gist and sting of West’s allegations in the second amended
complaint.
The Calvert plaintiffs contend the statements made by
West, Hakala, and Melugin from the interviews and press
conference went beyond the gist and the sting of the allegations
in West’s second amended complaint. However, the challenged
statements closely track the second amended complaint’s
allegations. For example, West’s statement “[i]t’s just like my
insurance was [Dr. Calvert’s] personal ATM card” is a near
verbatim quote from West’s second amended complaint. The
Calvert plaintiffs assert the trial court found West’s statement
came “after Fox state[d] that it reviewed documents, insurance
statements, billings records and records from the State of
California that were provided to them by West.” But the May 13
report properly attributed West’s statement to her second
amended complaint: Less than a minute before West made the
challenged statement, Melugin stated, “[A]ccording to [West’s]
lawsuit, she discovered Calvert had fraudulently billed her
insurance over five hundred and twenty thousand dollars and
fraudulently collected over three hundred and thirty thousand
dollars.” Thus, it is clear in context that West’s statement refers
to her allegations of insurance fraud against Dr. Calvert.
29
The Calvert plaintiffs similarly contend the trial court
properly found the statement “West told [KTTV] she was
flabbergasted after she says Dr. Calvert’s front desk told her a
USC fellow did one of her surgeries instead of Dr. Calvert” was
not protected by the fair report privilege because the statement
was not “prefaced as [an] allegation in the West Complaint” or
“attributed to any judicial or official proceeding,” and instead was
“derived from an interview.” However, considering the May 13
report as a whole, it would be clear to the average viewer the
statement related to the allegations in West’s second amended
complaint that Dr. Calvert committed medical battery by having
USC fellows perform surgeries on West without her consent. The
fact West was surprised to learn someone performed the surgery
other than Dr. Calvert simply underscores her allegation she did
not consent to the procedure, and it does not alter the gist or
sting of West’s allegation that a USC fellow performed the
surgery on her without her consent.
The Calvert plaintiffs also contend the trial court correctly
found the privilege did not apply to the statement in the online
article accompanying the May 13 report that “West provided
[KTTV] with the prescription for her painkillers after the
surgery, showing they were prescribed by the USC fellow, instead
of Dr. Calvert,” because West did not allege the USC fellows
improperly wrote prescriptions for her. Although Melugin’s
report did not identify the USC fellow, the second amended
complaint alleged that defendant Ziyad Hammoudeh, M.D., was
one of two USC surgical fellows who worked in Dr. Calvert’s
fellowship program and performed a surgical procedure on West
to which she had not consented. In support of this allegation,
West alleged she found a pain medication that Dr. Hammoudeh
30
had prescribed to her following one of her surgeries. Thus,
Melugin’s statement about the pain medication both related to
the allegations in the second amended complaint and did not
alter the gist or sting of the allegations of nonconsensual surgery.
In short, the reports’ statements relating to West’s
allegations and the interviews with West and Hakala may have
“expanded on the theme but did not otherwise alter the substance
of the privileged material such that a reader would be affected
differently if the information garnered by interviews [with West
and Hakala] were not included.” (Sipple, supra, 71 Cal.App.4th
at p. 245.)7
Thus, the trial court erred in failing to grant the Fox
defendants’ special motion to strike as to these statements in the
7 It is a closer call whether the references in the May 15
report to Hakala’s statements at the press conference regarding
additional victims falls within the fair and true report privilege.
Melugin reported that “according to the plaintiff’s attorney in a
press conference this afternoon, they’ve had over twenty new
alleged victims contact them, . . . making similar accusations
against the doctor about unnecessary surgeries and insurance
fraud . . . .” Melguin further reported, “West says . . . new alleged
victims are contacting her attorneys.” The trial court found these
statements did not recite or reflect allegations in West’s second
amended complaint. Arguably the statements do not alter the
gist or sting of West’s allegations that Dr. Calvert engaged in “an
orchestrated scheme of insurance fraud” affecting not just West,
but also Dr. Calvert’s other patients. However, because we
conclude below that Dr. Calvert did not show actual malice as to
the Fox defendants, we do not reach whether the statements fall
within the fair report privilege.
31
complaint (complaint ¶¶ 23-36, 50-51, 56-59, 62, 76, 79-80, 82-
83).8
(c) The fair report privilege does not protect the
statements by Melugin and Houston regarding
Houston’s allegations against Dr. Calvert9
Unlike West’s allegations, Houston’s allegations do not
relate to and are not attributed to any judicial proceeding
protected under section 47, subdivision (d). The Fox defendants
acknowledge Houston is not identified as a patient of Dr. Calvert
in West’s second amended complaint, but they contend Houston’s
statements “expanded on the specific allegations in the West
Lawsuit” without “alter[ing] their gist and sting.” Although
Houston’s allegations of insurance fraud by Dr. Calvert tend to
corroborate some of West’s allegations, Houston’s statements
involve separate and distinct instances of asserted malfeasance
by Dr. Calvert.
The Fox defendants rely on Sipple, supra, 71 Cal.App.4th
226 and Dorsey v. National Enquirer, Inc. (9th Cir. 1992)
8 As to the statements alleged in the complaint for context
regarding West’s allegations, because they merely provide
context for the statements that should have been stricken, the
trial court erred in failing to grant the Fox defendants’ special
motion to strike as to the context allegations (complaint ¶¶ 36,
80). (Baral, supra, 1 Cal.5th at p. 396.)
9 We discuss these allegations with respect to the Calvert
plaintiffs’ separate claims against the Fox defendants and
Houston. However, as we discuss below, Dr. Calvert met his
burden to present evidence of actual malice as to Houston, but
not as to the Fox defendants.
32
973 F.2d 1431, but both are distinguishable. In Sipple, Mother
Jones magazine published an article reporting on a custody
dispute between a nationally known political consultant and his
first wife. In the custody dispute, the consultant’s first and
second wives each testified to suffering physical and emotional
abuse by the consultant. (Sipple, at pp. 230-231.) To prepare the
article, the author reviewed testimony from the hearing and the
first wife’s deposition in the custody case, and he interviewed the
women and their friends and relatives to confirm the women’s
stories. (Id. at pp. 232-233.) The Court of Appeal concluded the
fair report privilege protected the article, rejecting the
consultant’s argument that statements in the article were not
included in the court proceedings, and thus received no
protection. (Id. at p. 245.) The court reasoned, “[A]lthough [the
article] expands on specific incidents of abuse, [it] does not
change the gist or sting of the courtroom statements or the
complexion of the affair.” (Ibid.) The Fox defendants attempt to
analogize their interview with Houston to the author’s interviews
with the women and their friends and relatives. But the
interviews in Sipple related to the abuse the women in the
custody proceeding testified about, whereas Houston’s interview
included only his own allegations against Dr. Calvert.
In Dorsey, a famous singer sued the National Enquirer for
defamation based on an article it published that reported on a
parentage suit in which the mother of the singer’s child claimed
the singer suffered from the AIDS virus. (Dorsey v. National
Enquirer, Inc., supra, 973 F.2d at p. 1433.) The article quoted
the mother and a private investigator she hired as asserting
great confidence in the allegation. (Ibid.) Applying California
law, the Ninth Circuit concluded the fair report privilege
33
protected the mother’s and investigator’s out-of-court statements
where the statements “merely confirm[ed] the gist” of the
mother’s statement in the lawsuit “‘on information and belief’”
that the singer had the AIDS virus. (Id. at pp. 1436-1437.) Here,
Houston’s interview does not merely confirm the gist of West’s
allegations, but rather, he provided new allegations of alleged
misconduct by Dr. Calvert in his treatment of Houston.
3. The trial court erred in finding as to the remaining
statements by Melugin that Dr. Calvert showed a
probability he can produce clear and convincing
evidence of the Fox defendants’ actual malice
Dr. Calvert does not dispute he is a public figure and
therefore must prove the Fox defendants published the
challenged statements with actual malice. “Although at trial a
public figure plaintiff must establish actual malice by clear and
convincing evidence, in the context of an anti-SLAPP motion the
plaintiff must instead establish only a ‘probability’ that he or she
can produce clear and convincing evidence of actual malice.”
(Edward, supra, 72 Cal.App.5th at p. 793; accord, Ampex Corp. v.
Cargle, 128 Cal.App.4th 1569, 1578.) Dr. Calvert has not met
this burden.10
10 The Fox defendants contend the Calvert plaintiffs failed
adequately to plead in the complaint that the Fox defendants
acted with actual malice, citing to Vogel v. Felice (2005)
127 Cal.App.4th 1006, 1017. Because we find the Calvert
plaintiffs did not meet their burden to show a probability of
proving actual malice as to the Fox defendants, we need not
reach this contention. We discuss this argument as to Houston
below.
34
The actual malice standard “focuses solely on the
defendant’s subjective state of mind at the time of publication.”
(Sutter Health v. UNITE HERE (2010) 186 Cal.App.4th 1193,
1210; accord, Bose Corp. v. Consumers Union of United States,
Inc. (1984) 466 U.S. 485, 512 [post-publication, incredible
explanation for inaccuracy by author of report did “not establish
that he realized the inaccuracy at the time of publication”];
Khawar v. Globe Int’l., Inc. (1998) 19 Cal.4th 254, 262 [“[T]he
publisher of a defamatory statement acts with reckless disregard
amounting to actual malice if, at the time of publication, the
publisher ‘in fact entertained serious doubts as to the truth of his
publication.’”].) “‘[A]ctual malice can be proved by circumstantial
evidence.’ [Citation.] Considerations such as ‘anger and hostility
toward the plaintiff,’ ‘reliance upon sources known to be
unreliable [citations] or known to be biased against the plaintiff,’
and ‘failure to investigate’ may, ‘in an appropriate case, indicate
that the publisher himself had serious doubts regarding the truth
of his publication.’ [Citation.] Such evidence is relevant ‘to the
extent that it reflects on the subjective attitude of the
publisher’ . . . .” (Balla v. Hall (2021) 59 Cal.App.5th 652, 683;
accord, Edward, supra, 72 Cal.App.5th at p. 793.) “However,
‘failure to investigate, without more, generally is insufficient’ to
show malice. [Citation.] And ‘we will not infer actual malice
solely from evidence of ill will, personal spite or bad motive.’”
(Edward, at p. 793; accord, Ampex Corp. v. Cargle, supra,
128 Cal.App.4th at p. 1579.)
Further, “‘the press need not accept [a defendant’s]
“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
35
likelihood of error.” [Citation.]’ [Citation.] ‘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.’” (Young v. CBS Broadcasting, Inc. (2012)
212 Cal.App.4th 551, 564; accord, Harte-Hanks Communications,
Inc. v. Connaughton (1989) 491 U.S. 657, 691, fn. 37.)
With respect to Melugin’s statements regarding the Orange
County District Attorney’s filing and later dismissal of felony
charges against Dr. Calvert based on alleged insurance fraud,
Dr. Calvert submitted no evidence Melugin (or the other Fox
defendants) acted with actual malice in describing statements
made by deputy district attorney Kamiabipour or other
representatives of the district attorney’s office. Although
Dr. Calvert averred in his declaration he “never committed . . .
criminal insurance fraud regarding any patient” and he was
“never proven guilty by the Orange County District Attorney’s
office,” he has not provided any evidence to support his claim the
Fox defendants knew Kamiabipour’s statements in the May 13
report as to why the criminal complaint was dismissed were
false, or that the Fox defendants entertained serious doubt the
statements were truthful at the time of publication. Further, Dr.
Calvert presents no argument on appeal that these statements
were made with actual malice. Thus, the trial court erred in
failing to grant the Fox defendants’ special motion to strike these
statements (complaint ¶¶ 46-49).11
11 As to the statements alleged in the complaint for context
regarding the criminal complaint, because they merely provide
context for the statements that should have been stricken, the
36
Dr. Calvert also argues the Fox defendants ignored strong
evidence of the falsity of West’s claims, including the deposition
testimony of West and Dr. Fairbanks, as well as medical and
insurance documentation submitted in opposition to the special
motions to strike. The trial court erred in considering this
evidence. The deposition transcripts were provided to the court
in November 2020 with the Calvert plaintiffs’ oppositions to the
motions. There is no evidence in the record showing the
documents were available to the Fox defendants prior to the time
of publication (in May 2019). Likewise, Dr. Calvert stated in his
November 19, 2020 declaration that West had consented to the
surgeries and the surgeries were medically necessary, and he
attached medical and insurance documentation to support his
assertions, but the declaration was filed in the court only after
the 2019 broadcasts. There is no evidence in the record that the
Calvert plaintiffs provided this information to the Fox defendants
prior to the broadcast. The deposition testimony and Calvert’s
declaration and attached documents are therefore irrelevant to
the Fox defendants’ subjective mental state at the time the
reports were published. (See Sutter Health v. UNITE HERE,
supra, 186 Cal.App.4th at p. 1210.)
Dr. Calvert further relies on Barens’s April 25, May 10, and
May 13, 2019 pre-publication letters to Leighton and Melugin to
show actual malice, but these letters simply deny any
wrongdoing and state repeatedly without supporting
documentation that West consented to the surgeries and
Dr. Calvert properly billed the insurance companies because the
trial court erred in failing to grant the Fox defendants’ special
motion to strike as to the context allegations (complaint ¶¶ 46-
47). (Baral, supra, 1 Cal.5th at p. 396.)
37
surgeries were medically necessary. In his April 25 letter,
Barens invited Leighton to review West’s medical charts and
billing records. However, in his May 13 letter, Barens repeated
that West’s allegations were “categorically untrue and can be
disproven by written documentation,” but stated he could not
release West’s medical records because West had refused to
consent to disclosure. There is no evidence in the record that
Barens ever provided to the Fox defendants any evidence to
support Barens’s conclusory statements that Dr. Calvert had
committed no wrongdoing. Barens’s May 10 letter similarly
stated that West had consented both to the surgeries and the
insurance billing. But the focus of Barens’s May 10 letter was on
the “utter absurdity” of West’s claims of sexual penetration,
which Barens relied on to argue West was not credible. There is
nothing in the record to show West’s allegation she was subjected
to nonconsensual sexual penetration while unconscious during a
surgery was false. Regardless, the Fox defendants elected not to
report on these allegations by West, instead focusing on her
claims for fraud and medical battery. Moreover, rather than
demonstrating the Fox defendants intentionally avoided the
truth, the May 10 letter acknowledges Barens had received
“dozens and dozens of calls from Mr. Leighton asking questions”
about Dr. Calvert’s treatment of West. In light of the lack of any
documentation to support Barens’s denials of Dr. Calvert’s
wrongdoing, the Fox defendants were not required to accept
Barens’s denials as true. (See Young v. CBS Broadcasting, Inc.,
supra, 212 Cal.App.4th at p. 564.)
Likewise, the September 25, 2017 letter from Dr. Fairbanks
to Dr. Calvert, which Barens provided to Leighton, does not
undermine West’s allegations of fraud and medical battery.
38
Dr. Fairbanks explained in his letter that he had declined to
accept West back as a patient because of her “past history of
noncompliance” in 2009. Specifically, West did not follow his
surgical recommendation to remove an implant in her nose that
had caused her nose to become infected. Dr. Fairbanks also
stated in his letter that West’s medical records did not support
her claim Dr. Calvert placed Gore-Tex in her nose that
contributed to her nose infections. The letter does not provide
any information material to the allegations Dr. Calvert falsely
characterized cosmetic procedures as medically necessary,
performed additional unconsented procedures to bill his patients’
insurers, or allowed USC fellows to perform surgery on his
patients. Further, the letter confirms West’s allegations that Dr.
Calvert performed multiple surgeries on her nose from 2013 to
2017 and West believed things had “‘gone wrong’” after the first
surgery.
Thus, to the extent Melugin’s reporting of West’s and
Hakala’s statements at the press conference—that more 20 new
alleged victims had contacted Hakala—exceeded the scope of
West’s second amended complaint, Dr. Calvert’s claims based on
these statements fail because he did not show the Fox defendants
published the statements with actual malice.
Nor has Dr. Calvert shown the Fox defendants had other
reasons to doubt the allegations of Houston. Dr. Calvert
contends the Fox defendants knew the Medical Board had
rejected Houston’s complaint against Dr. Calvert, relying on the
February 8, 2017 letter from the Medical Board to Dr. Calvert.
But the Calvert plaintiffs presented no evidence the Fox
defendants knew of Houston’s complaint to the Medical Board,
the nature of the complaint, or the February 8, 2017 letter
39
(addressed only to Dr. Calvert). Further, the letter indicates only
that Houston’s complaint alleged “negligent treatment” by Dr.
Calvert, not insurance fraud as alleged by Houston in the May 13
report.
Dr. Calvert alternatively contends the statement by
Melugin in his May 13 report that Dr. Calvert declined to
comment on Houston’s allegations evidenced actual malice
because the Fox defendants intentionally concealed from
Dr. Calvert and his attorneys that they had interviewed Houston,
and had the Calvert plaintiffs known this, they would have
refuted Houston’s allegations. But Dr. Calvert provides no
authority for the proposition the Fox defendants were required to
divulge their sources to Dr. Calvert. Further, Melugin included
in his report Barens’s statement that “‘[e]very procedure
performed by Dr. Calvert on every patient was consented to in
writing prior to the procedure by the respective patient.’” The
inclusion of this denial in the broadcast undermines the Calvert
plaintiffs’ argument the Fox defendants harbored actual malice.
Dr. Calvert’s reliance on Antonovich v. Superior Court
(1991) 234 Cal.App.3d 1041 is misplaced. There, the Court of
Appeal concluded the plaintiff, a former elected official, had
submitted sufficient evidence of actual malice to survive
summary judgment on his defamation claim against his
successor, where he presented evidence that his successor failed
to investigate whether the allegedly defamatory statement was
true—that the former official had destroyed office files after he
lost the election. (Id. at pp. 1051-1052.) In finding a triable issue
as to actual malice, the court relied on evidence the former
official left vast quantities of files in his vacated office that were
maintained by the predecessor’s staff for at least eight years. (Id.
40
at p. 1052.) Here, Dr. Calvert has not submitted evidence the
Fox defendants had access to, but failed to consult, clear evidence
of the falsity of the reported allegations.
The trial court therefore erred in denying the Fox
defendants’ special motion to strike as to Melugin’s reporting of
West’s and Hakala’s statements at the press conference that over
20 potential victims had contacted Hakala (complaint ¶¶ 77, 81),
and Melugin’s and Houston’s statements regarding Houston’s
allegations (complaint ¶¶ 37-45, 52-55, 60-61, 63-65, 78).12
F. The Trial Court Did Not Err in Denying Houston’s Special
Motion To Strike the Complaint as to Dr. Calvert’s Claims
1. Dr. Calvert adequately pleaded Houston acted with
actual malice and carried his burden to show a
probability he can produce clear and convincing
evidence of actual malice
Houston contends Dr. Calvert failed adequately to plead
that Houston acted with actual malice because the complaint did
not provide sufficient facts, including details about the Medical
Board complaint. Houston also argues Dr. Calvert failed to meet
his burden to present clear and convincing evidence of actual
malice. Neither contention has merit.
In order to establish a probability of prevailing on a claim
as part of the second step of the anti-SLAPP analysis, a plaintiff
must “‘“state[ ] and substantiate[ ] a legally sufficient claim.’”’
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821;
12 Because we reverse the trial court’s denial of the Fox
defendants’ special motion to strike, we do not reach their
argument the Calvert plaintiffs failed to comply with
section 48a’s requirement that they timely demand a retraction.
41
accord, Taus, supra, 40 Cal.4th at p. 713.) Where the plaintiff is
a public figure, a defamation complaint that “fails to plead that
defendant made the challenged statements with ‘actual malice,’”
that is “‘with knowledge that it was false or with reckless
disregard of whether it was false or not,’” is legally insufficient.
(Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1017.) Dr. Calvert’s
complaint adequately alleged defendants published the
defamatory statements “with actual malice, defined as knowledge
of falsity or reckless disregard for truth or falsity,” as shown by,
among other things, Houston’s awareness the Medical Board had
rejected his complaint against Dr. Calvert, thereby “exonerating
Dr. Calvert.” Further, as discussed below with regard to Dr.
Calvert’s offer of proof on this issue, Dr. Calvert’s allegations
Houston falsely accused Dr. Calvert of threatening his patients
fairly allege Houston fabricated at least some of his accusations
against Dr. Calvert and therefore made his statements with
knowledge of their falsity.
Vogel v. Felice, supra, 127 Cal.App.4th 1006, relied on by
Houston, is distinguishable. There, the Court of Appeal
concluded the trial court erred in denying the defendant’s special
motion to strike the complaint for defamation, explaining the
complaint’s “conclusory boilerplate allegation that defendant
acted ‘maliciously and oppressively, and in conscious disregard of
[plaintiffs’] rights’” was not sufficient to plead actual malice. (Id.
at p. 1018.) Here, the Calvert plaintiffs pleaded the correct
constitutional standard, as well as specific facts to show
Houston’s actual malice.
Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, also
relied on by Houston, is not on point because the court applied
the standard for actual malice for purposes of the common
42
interest privilege now codified at section 47, subdivision (c), not
the constitutional standard for pleading actual malice to support
a defamation claim brought by a public figure first articulated in
New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.
Further, the Tschirky court concluded the plaintiff had not
adequately pleaded facts supporting his allegations of actual
malice because he alleged only that the defendant published the
challenged statements out of ill will toward the plaintiff and his
desire to oppress the plaintiff, without any supporting facts.
(Tschirky, at p. 539.) By contrast, the allegations here, which
used the Sullivan standard for constitutional malice, alleged the
defendants acted “with actual malice, defined as knowledge of
falsity or reckless disregard for truth or falsity.” (See Sullivan, at
pp. 279-280.) These allegations, along with the additional alleged
facts, were sufficient to plead malice.13 (See Mullins v. Brando
(1970) 13 Cal.App.3d 409, 419-420 [complaint alleging “statement
and publication was made by defendants with evil motive and
malice, wil[l]fully and wrongfully, and with intent to injure,
disgrace and defame plaintiffs and with wanton and reckless
disregard for the truth or falsity of the statements made”
sufficiently pleaded actual malice in defamation action involving
public figure].)
13 Resolute Forest Products, Inc. v. Greenpeace International
(N.D. Cal. 2017) 302 F.Supp.3d 1005 and Wynn v. Chanos (N.D.
Cal. 2014) 75 F.Supp.3d 1228, cited by the Fox defendants in
arguments joined by Houston, do not support Houston’s position.
These federal authorities apply the federal pleading standard
under rule 12(b)(6) of the Federal Rule of Civil Procedure, not
California procedural rules. (See Resolute Forest, at p. 1015;
Wynn, at p. 1233.)
43
Houston’s contention Dr. Calvert did not meet his burden
to establish a probability he can produce clear and convincing
evidence of actual malice fares no better. Houston argues Dr.
Calvert’s denials of misconduct are not sufficient to establish
Houston’s actual malice. Houston is correct that Dr. Calvert’s
statements in his declaration that he properly billed Houston’s
insurance company for the surgical procedures he performed on
Houston do not show that Houston’s statements to the contrary
were made with knowledge the statements were false or reckless
disregard for their truth. However, Dr. Calvert’s statement in his
declaration that “[he] never threatened Houston physically
nor . . . ever threatened him with criminal or civil liability . . . in
late 2015 or any time regarding any alleged insurance fraud” is of
a different nature because it directly contradicts Houston’s
statement in the May 13 report that he feared Dr. Calvert
because Dr. Calvert “threaten[ed]” him when Houston confronted
Dr. Calvert about his billing practices. As Houston asserted in
the report, Dr. Calvert told him, “[I]f I go down for insurance
fraud I’m taking you with me.” If Dr. Calvert did not make
threatening statements toward Houston, this can only mean
Houston fabricated the statements.
Therefore, if we accept as true Dr. Calvert’s denial that he
had ever threatened Houston, as we must in evaluating
Dr. Calvert’s evidence at the second step of the anti-SLAPP
analysis (Sweetwater, supra, 6 Cal.5th at p. 940), it follows that
Houston fabricated his allegations Dr. Calvert had threatened
him. On these facts, it would be a reasonable inference that
Houston harbored personal hostility against Dr. Calvert and
acted with actual malice in making his allegations of insurance
fraud. (See Masson v. New Yorker Magazine, Inc. (1991) 501 U.S.
44
496, 517, 521(Masson) [“a deliberate alteration of the words
uttered by a plaintiff” may demonstrate the defendant
deliberately or recklessly altered his quotation of what the
defendant said if “the alteration results in a material change in
the meaning conveyed by the statement”]; Reader’s Digest v.
Superior Court, supra, 37 Cal.3d at p. 257 [the defendant
publisher’s “[p]rofessions of good faith will be unlikely to prove
persuasive . . . where a story is fabricated by the defendant, is the
product of his imagination, or is based wholly on an unverified
anonymous telephone call.”]; Christian Research Institute v.
Alnor (2007) 148 Cal.App.4th 71, 85 [“malice may be inferred
where . . . ‘a story is fabricated by the defendant, [and] is the
product of his imagination’”].)
Houston’s attempt to distinguish Masson as involving
alteration of a written quote is unpersuasive. As the United
States Supreme Court observed in Masson, “[t]he use of
quotations to attribute words not in fact spoken bears in a most
important way on [the actual malice] inquiry . . . .” (Masson,
supra, 501 U.S. at p. 517.) Here, Dr. Calvert produced sufficient
evidence Houston attributed threatening words to him that he
had not spoken. This was sufficient to carry Dr. Calvert’s burden
to demonstrate the minimal merit required at the second step of
the anti-SLAPP analysis.14 (See Bonni, supra, 11 Cal.5th at
p. 1009.)
14 Houston also argues the trial court erred in considering the
February 8, 2017 letter resolving the Medical Board complaint
against Dr. Calvert because it was inadmissible hearsay. As a
threshold matter, for purposes of opposing a special motion
strike, Dr. Calvert was only required to show it was “reasonably
possible” the letter would be admissible at trial under Evidence
45
2. The litigation privilege does not protect Houston’s
statements
Section 47, subdivision (b), makes privileged any
publication or broadcast that is made “[i]n any . . . judicial
proceeding, [or] in any other official proceeding authorized by
law . . . .” “The litigation privilege is also ‘relevant to the second
step in the anti-SLAPP analysis in that it may present a
substantive defense a plaintiff must overcome to demonstrate a
probability of prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th
299, 323; accord, Trinity Risk Management, LLC v. Simplified
Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th 995, 1006
(Trinity).) Thus, Dr. Calvert cannot establish a probability of
prevailing if the litigation privilege precludes a finding of liability
on the defamation claims based on Houston’s statements. The
litigation privilege does not apply.
Houston contends section 47, subdivision (b)’s litigation
privilege protects his statements published in the reports because
he is a “potential witness” in West’s lawsuit, citing Trinity, supra,
59 Cal.App.5th at pages 1006 to 1007. Houston’s reliance on
Trinity is misplaced. There, the Court of Appeal concluded
prelitigation emails were protected because they were
Code section 1280’s hearsay exception for official records.
(Sweetwater, supra, 6 Cal.5th at p. 949.) But we need not reach
whether the court properly considered the letter because
Dr. Calvert carried his burden to show a probability he can
produce clear and convincing evidence Houston acted with actual
malice based on evidence Houston fabricated his allegation that
Dr. Calvert threatened him.
46
“essentially . . . discovery request[s]” that were “made in
preparation for or in anticipation of litigation,” which commenced
less than two weeks after the emails were sent. (Trinity, at
p. 1005.) By contrast, nowhere in the reports is Houston
identified as a potential witness in West’s litigation, nor has
Houston produced any evidence showing he was or will be a
witness or otherwise involved in the litigation.
3. Houston’s remaining arguments fail
Houston contends the trial court should have granted his
special motion to strike three of the allegedly false statements
identified in the complaint (in paragraphs 41, 42, and 54), which
the Calvert plaintiffs conceded were not actionable but were
included for context in support of their claims for relief. Houston
argues it was error for the trial court to allow Dr. Calvert to
withdraw or amend those statements. (See Simmons v. Allstate
Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [Code of Civil
Procedure section 425.16 does not allow a plaintiff to “amend[]
the complaint once the court finds the requisite connection to
First Amendment speech” to remove allegations of protected
conduct.”].) However, the trial court did not allow Dr. Calvert to
amend his complaint; rather, it denied Houston’s request to
strike the three statements because they were nonactionable
statements included only for context. This was proper. As
discussed, allegations of protected activity that only provide
context without supporting a claim for recovery cannot be
47
stricken. (Bonni, supra, 11 Cal.5th at p. 1012; Baral, supra, 1
Cal.5th at p. 394.)15
Finally, Houston argues the trial court erred in failing to
strike paragraph 61 of the complaint, which alleges the May 13
report “displayed photographs of Houston’s chest, calculated to
convey and reinforce to viewers the false impression that
Dr. Calvert had committed malpractice.” Houston broadly
contends “[p]hotographs are not false statements of fact and
cannot constitute defamation.” Houston has forfeited this
argument by failing to support it with citation to relevant legal
authority.16 (See Hernandez v. First Student, Inc. (2019)
37 Cal.App.5th 270, 277 [“‘[T]o demonstrate error, an appellant
must supply the reviewing court with some cogent argument
15 The context allegations include the statements in the
May 13 report that “‘Houston tells [KTTV] he also wanted a more
masculine jawline, so he went to Dr. Calvert for jaw implants’”
(complaint ¶ 41); Dr. Calvert told Houston that if he allowed
Dr. Calvert to film the surgery, “‘there’s no charge’” (id. ¶ 42);
and KTTV’s report that “‘five years later, Calvert’s former
patients say, history is repeating itself’” (id. ¶ 54). Although not
argued by Houston on appeal, the context allegations also include
the statements in the May 13 report that Dr. Calvert reported “‘a
box fell on Houston’s nose’” and caused an airway obstruction,
and that Houston “‘went to Calvert for chest implants, which had
to be revised twice, as well as a breast reduction and multiple
liposuction surgeries.’” (Complaint ¶¶ 38, 60.)
16 Houston only relies on the statement in our opinion in
Jackson, supra, 10 Cal.App.5th at page 1261 that actionable
defamation must imply a “‘“‘provably false assertion of fact.’”’”
Jackson did not involve a defamation claim based on the
publication of photographs, nor did we hold a defamation claim
may never be based on publication of photographs.
48
supported by legal analysis and citation to the record.’”]; City of
Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 287 [“[W]e
may disregard conclusory arguments that are not supported by
pertinent legal authority or fail to disclose the reasoning by
which the appellant reached the conclusions he wants us to
adopt.”].)
DISPOSITION
The order denying the Fox defendants’ special motion to
strike is reversed. The cause is remanded to the trial court with
directions to vacate the order denying the Fox defendants’ special
motion to strike and to enter a new order granting the motion.
The order denying Houston’s special motion to strike is reversed
as to the claims asserted by the professional corporation but
affirmed as to the claims asserted by Dr. Calvert. On remand the
trial court is to vacate the order denying Houston’s special motion
to strike and to enter a new order granting Houston’s special
motion to strike as to the professional corporation but denying
the motion as to Dr. Calvert.
The Fox defendants are to recover their costs on appeal.
Houston and the Calvert plaintiffs are to bear their own costs on
appeal.
FEUER, J.
We concur:
PERLUSS, P. J. SEGAL, J.
49