Filed 11/7/19 Yu v. Pearce CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

DAVID YU et al.,

Plaintiffs and Appellants,

v.

KAREN PEARCE,

Defendant and Respondent.

A154761

(Contra Costa County

Super. Ct. No. MSC17-02563)

N.Y. won an election for student body president at San Ramon Valley High School (school) but was not awarded the presidency as punishment for creating an offensive campaign video. After N.Y. sued the San Ramon Valley Unified School District (district), and threatened to file another lawsuit, the district changed its decision and announced N.Y. would be student body president.

Karen Pearce posted comments on her social media about the district’s contradictory decisions. This prompted N.Y. and his parents (collectively, plaintiffs) to sue Pearce for defamation. Pearce filed an anti-SLAPP motion, which the trial court granted in part and denied in part. (Code Civ. Proc., § 425.16.) Plaintiffs appeal.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

During the 2016-2017 school year, Pearce’s daughter was associated student body (ASB) president at the school. N.Y. was junior class president, and—like all student body officers—was enrolled in a leadership class. In early 2017, N.Y. ran for ASB president. He agreed to a code of conduct in an election packet which stated, “I understand Leadership students are expected to be a proper role model on campus displaying exemplary behavior. Courteous treatment of . . . community members is expected and required. Any major violation of school policies may result in review of involvement in the Leadership class.” The election packet advised candidates to use “discretion when creating campaign signs and slogans, as any inappropriate materials will be removed and the candidate is subject to be[ing] pulled from the election.”

N.Y. and several other students created a campaign video portraying N.Y. as a James Bond character who saved a student who had been taken captive by two Muslims brandishing imitation firearms. In the video, N.Y. said “ ‘vote for me and I will protect you from ISIS.’ ” Two students in the video were practicing Muslims. The video was posted on YouTube, but removed the next morning after N.Y. learned students found the video offensive. N.Y. apologized in writing to school officials two days later.

N.Y. won the election, but the school declined to award him the presidency. The school removed N.Y. as junior class president, expelled him from the leadership class, and disqualified him from the election.

N.Y. Files a Lawsuit and Threatens Another Lawsuit,

and the District Changes Its Decision

N.Y. filed a petition for writ of mandate in Contra Costa County Superior Court. The court denied the petition. A few weeks later, N.Y.’s attorney told the district that N.Y. intended to file a federal lawsuit seeking damages, and demanding the district return N.Y. to the “status quo anti.” The next day, the district reinstated N.Y. as junior class president, reenrolled him in the leadership class, and acknowledged he would be president for the 2017–2018 school year. Shortly thereafter, a district representative spoke with the leadership class and suggested the district reinstated N.Y. because he had sued the district.

Pearce Receives an Email from a Teacher

and Posts on Social Media

Two days after the district changed its decision, Pearce received an email from a teacher in the district. The teacher described the campaign video, N.Y.’s suspension from the leadership class, N.Y.’s lawsuit, and the district’s decision to “settle and to reinstate” him as ASB president. The teacher also stated: (1) N.Y. “never apologized” and his “parents sued for reinstatement;” (2) the “judge dismissed the case because . . . it was filed under the wrong writ” and “needed to be a freedom of speech case;” and (3) the “family refiled and added a financial lawsuit against the District.” The teacher noted the district “was just recognized as a ‘non-hate’ District earlier this week but they are reinstating a student whose video was blatantly disparaging to Muslims.” She asked, “What’s the point of having ANY rules/code of conduct/criteria for a prestigious position like ASB President if parents can just bully the District via a financial lawsuit into submitting into their wishes?”

The teacher listed several people she had contacted—including a local newspaper—and asked Pearce what she “could do to let the District know that this reinstatement is problematic?” The teacher urged Pearce to send the email to anyone she knew “who would be outraged at our District’s decision to reinstate the student . . . . [¶] There is a Board meeting on Tuesday. It would be awesome to have a strong show of support and speakers to speak on our Leadership program’s behalf. The reinstatement of this student is a blatant disrespect to rules, in general, and his video that mocked Muslims was sufficient to disqualify the student from the campaign.”

Pearce responded to the teacher’s email. She also forwarded the teacher’s email to several others with the comment “[a]nd so it begins.” That afternoon, Pearce posted on her Facebook and Instagram pages. On Facebook, Pearce posted: “[The district] just caved in to legal bullying by parents of a junior who ran for . . . ASB President using a racially offensive ‘joke’ video as his campaign tactic. [¶] He and his friend dressed up like Muslim terrorists and had fake guns[.] I saw the video and was so outraged. [¶] These kids agree to a campaign contract with clear consequences for breaking it…you will not get an office. I know it well [because] my daughter is the current ASB president. [¶] Initially the boy was not allowed to be president. Parents sued. Parents refused to have their son apologize or take any responsibility for a dreadful decision. [¶] AND I heard from students that parents changed their (losing) lawsuit to a freedom of speech suit and asked for big $$$ DISTRICT caved!!!! Gave in rather than stand up for all the principles they expect our kids to learn and exhibit. Boy returns tomorrow as new ASB President. UNBELIEVABLE!!”

The post continued: “As a mom who expects (forces) her kids to abide by their contracts…As a mom who saw the ASB kids have to enforce their ASB contract on their friends this year… [¶] As a parent who expects my kids to accept responsibility for poor choices and apologize… [¶] As a citizen in a country where racial slurs (even in jest) are NOT OK…I am outraged. [¶] [District]—think about the precedent you just set. You pretty much tied the hands of your principals, teachers and safety staff. Get caught drinking—just sue. Don’t like your grade—sue. Apparently things like right and wrong don’t matter here anymore. [¶] There is a Board meeting on Tuesday. It would be awesome to have a strong show of support and speakers to speak on our Leadership program’s behalf. The reinstatement of this student is a blatant disrespect to rules, in general, and his video that mocked Muslims was sufficient to disqualify the student from the campaign. This situation is not just a HS thing. The outcome is precedent for all sorts of unfair behavior.”

On Instagram, Pearce posted: “Raising kids just got harder thanks to [the district] and the parents of a [school] student who used a racially insensitive video against Muslims as his campaign for ASB President. Parents didn’t like that the campaign contract he signed dictated that he wasn’t allowed into office so they brought multiple suits against the District AND refused to have their son apologize/take responsibility for a poor decision. [The district] caved and are forcing the leadership class and school to have this boy as their role model and leader next year. What kind of example is this [district]??? How do you hope to uphold all the other behavior and conduct contracts with students?? Kids make mistakes—I get it. But it’s the authority figures (parents, school, District) that need to teach accountability. Parents—this is what your tax dollars are supporting. I feel so bad for this boy and the life lesson his parents are choosing…don’t like something—sue. [¶] I hope the local media follows this. It’s just not right. Please share. I have to believe good will win!!@ktvujuliehaener @eastbaytimes #thisiscrazy #srvusd #srvhs #upside_down #charactermatters.”

The social media posts “created media frenzy,” and “[n]eighborhood discussions on sites like . . . Nextdoor.com got so heated that Nextdoor.com had to completely shut down the threads.” Students staged a walkout to protest the district’s decision to reinstate N.Y. Over 140 district employees signed a letter criticizing the district for reversing its decision and presented the letter at a school board meeting.

Defamation Complaint and Anti-SLAPP Motion

Plaintiffs sued the district and several of its employees in federal district court. Several months later, plaintiffs filed a lawsuit against Pearce in Contra Costa County Superior Court. The complaint alleged eight defamation claims. According to plaintiffs, Pearce acted with malice by posting false information on social media. The complaint alleged the following statements were defamatory:

(1) N.Y. used a “ ‘racially insensitive video against Muslims as his campaign for ASB President;’ ” used a “ ‘racially offensive “joke” video as his campaign tactic;’ ” and used a video that “ ‘mocked Muslims.’ ”

(2) N.Y. and his friends “ ‘dressed up like . . . Muslim terrorist[s].’ ”

(3) N.Y. signed a campaign contract that “ ‘dictated that he . . . wasn’t allowed into office;’ ” that N.Y. “broke ‘behavior and conduct contracts’ with” the school; and there were “ ‘clear consequences’ ” for “ ‘breaking [the contract] . . . [you] will not get an office.’ ”

(4) N.Y.’s parents “brought multiple suits against the District” and “ ‘changed their (losing) lawsuit to a freedom of speech suit and asked for big $$$.’ ”

(5) N.Y.’s parents “ ‘refused to have their son . . . apologize’ ” or “ ‘take responsibility for a poor decision.’ ”

Pearce filed an anti-SLAPP motion. She argued the complaint arose out of protected activity because the social media posts were made in connection with an issue of public interest. According to Pearce, the video—which featured Muslim terrorists and referred to ISIS—implicated the district’s tolerance for racially insensitive material, and the district’s position on that issue was a “matter of great import to the school community” and the “community at large.” Next, Pearce claimed plaintiffs could not show a probability of prevailing because her statements were true. Pearce also argued N.Y. was a limited purpose public figure and that she did not act with malice because her posts “were based on a reliable source of information” and she did not doubt, or have reason to doubt, the accuracy of the information.

In a supporting declaration, Pearce averred she watched the campaign video and was “shock[ed] that the students would choose to make light of the country’s ongoing war against radical terrorist groups.” Pearce thought referring to Muslims as ISIS was “ignorant and perpetuate[d] stereotypes” and that the video was “racially insensitive and foolish.” She assumed the school “would handle the matter appropriately” and there would be “some consequence to N.Y. for his actions.” Pearce learned the school disqualified N.Y. from serving as incoming ASB president, and that N.Y. had filed a lawsuit against the school. When Pearce found out the school had reinstated N.Y., she was outraged because “it seemed to reinforce the notion that anytime you do not agree with something, just sue or threaten to sue and you will get your way even if you break the rules along the way.” Pearce was unaware of any public apology from N.Y. for the video.

Pearce trusted the teacher’s information—she knew the teacher and was aware of the teacher’s “ties to the Leadership program.” Pearce “posted the substance” of the teacher’s email on her social media “to express [her] opinions against the School District’s decisions” and “to gather support for the position that the . . . District should enforce the rules . . . in an even-handed[] manner.” She hoped to “prompt action by other [district] parents, teachers, advisors, staff, students, and community members to promote racial tolerance and encourage cultural sensitivity.”

Pearce stated she did not know N.Y., and did not care whether he was ASB President. What Pearce cared about was the district standing its “ground on what [it] initially deemed was a violation” of the code of conduct and election packet. Finally, Pearce stated people with access to her social media pages live in Danville, San Ramon, Alamo, and “would potentially be affected” by the district’s actions.

Opposition and Reply

In opposition, plaintiffs argued the social media posts were not made in connection with an issue of public interest and that Pearce was not exercising her own free speech rights, but rather the “free speech of the teacher” whose email Pearce “mindless[ly]” reposted. Next, plaintiffs argued they could prevail on the merits because Pearce made “numerous false statements.” Plaintiffs claimed they were not limited purpose public figures, and that Pearce acted with malice. Plaintiffs offered supporting declarations describing the “media frenzy and communities’ uproar” generated by the social media posts, and noting the “ ‘mob’ mentality” at the school board meeting. Plaintiffs also averred N.Y. apologized for the campaign video. Their declarations attached the operative complaint in the federal lawsuit.

Pearce’s reply contended the district’s handling of the incident was a matter of public interest. She also argued the substance of her statements was true and that she did not act with malice.

Order on the Anti-SLAPP Motion

The court granted the motion as to N.Y.’s claims. The court determined Pearce exercised her own First Amendment rights when she posted on social media and that the complaint arose out of protected activity because the posts were made in a public forum in connection with an issue of public interest. Next, the court determined plaintiffs could not establish a probability of prevailing on the merits because most of Pearce’s statements were not defamatory. Finally, the court concluded N.Y. was a limited purpose public figure when Pearce made the statements, and that plaintiffs failed to show malice.

DISCUSSION

“ ‘Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16.’ ” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) If the defendant establishes the claim arises from protected activity, “ ‘the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing

a probability of success.’ ” (Id. at p. 940.) To establish a probability of prevailing, the plaintiff must demonstrate the complaint “ ‘has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment.’ ” (Ibid.) “ ‘We review de novo the grant or denial of an anti-SLAPP motion.’ ” (Ibid.)

I.

Plaintiffs’ Lawsuit Arises out of Protected Activity

Written statements made in a public forum in connection with an issue of public interest are protected speech under section 425.16, subdivision (e)(3). Social media websites such as Instagram and Facebook are public forums under the statute. (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 199.)

The first question is whether Pearce’s social media posts were made in connection with an issue of public interest. The answer is yes. In the anti-SLAPP context, “public interest” encompasses “ ‘ “any issue in which the public is interested.” ’ ” (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465.) The “ ‘issue need not be “significant” to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest.’ ” (Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 675.) Courts have held the public is interested in issues of public school governance (Ghafur v. Bernstein (2005) 131 Cal.App.4th 1230, 1238), i.e., how a school board “responds to allegations of misconduct.” (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 757; Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1436–1439 [principal’s handling of racially-motivated student violence concerned “an issue of public interest”]; McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 109–110 (McGarry) [explanation by university officials for football coach’s termination concerned “an issue of public interest”]; Hicks v. Richard (2019) 39 Cal.App.5th 1167, 1176 [“providing schoolchildren with an appropriate education” is an issue of public interest].)

Plaintiffs acknowledge a broad public interest in the actions of a school board, but claim Pearce’s statements concerned a narrow issue: the election. This argument seems to suggest Pearce’s statements lacked a close connection to the issue of public interest. We are not persuaded. Pearce’s social media posts described the video and the election, but focused on the district’s response to the misconduct. Pearce criticized the district for caving, and giving in to the pressure exerted by N.Y.’s parents, rather than “stand[ing] up for all the principles they expect our kids to learn and exhibit.”

The social media posts were a call to action: Pearce asked parents to share information about the district’s actions, and urged them to attend the school board meeting to speak on the importance of enforcing rules regarding student misconduct. Pearce’s posts served this purpose—students protested the district’s flip-flopping decisions, parents attended a heated board meeting, and numerous district employees signed a letter criticizing the board. (See Hicks v. Richard, supra, 39 Cal.App.5th at p. 1177 [letter written by school parents was intended to prompt investigation and action, and the letter “served this purpose”].) Considered in context, Pearce’s statements unquestionably concerned an issue of public interest: the district’s contradictory responses to the misconduct, and the message that conveyed to the community. (See FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 142 [identity of speaker, audience, and purpose of speech are relevant to whether speech is protected by anti-SLAPP statute].)

We reject plaintiffs’ claim that the issue was not of public interest because no

one outside the school cared about the election. Where the issue is of interest “ ‘to a limited, but definable portion of the public . . . , the constitutionally protected activity must . . . occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.’ ” (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131.) Here, teachers, parents, and students in the district were interested in the issue, as evidenced by the student protest, the letter criticizing the district, and the “ ‘mob’ mentality” at the school board meeting. Pearce’s statements were made in the context of an ongoing controversy generated by N.Y.’s filing of a writ petition against the district (and threatening another lawsuit), and the district’s response to that litigation. Finally, Pearce’s comments contributed to the public debate regarding the district’s enforcement of rules regarding student misconduct and its administration of its student leadership program. (See Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 900 [speech must contribute to the public discussion or resolution of issues of public interest].)

Plaintiffs’ final argument—that the social media posts are not protected speech because Pearce “mindless[ly]” repeated the teacher’s email—fares no better. By posting statements in her own words on her social media pages, Pearce exercised her own free speech rights. It is immaterial that Pearce obtained the underlying information from another source, and the cases upon which plaintiffs rely do not support a different conclusion.

II.

Plaintiffs Failed to Establish a Probability of Prevailing

The second question is whether plaintiffs have demonstrated a probability of prevailing on the challenged statements. (McGarry, supra, 154 Cal.App.4th at p. 111.) The answer is no.

“ ‘Defamation is the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or that causes special damage.’ ” (Dickinson v. Cosby (2019) 37 Cal.App.5th 1138, 1155.) The plaintiff in a defamation action “bears the burden of proving that the challenged statement was false. [Citation.] The plaintiff cannot be said to have carried this burden so long as the statement appears substantially true. To bar liability, ‘ “it is sufficient if the substance of the charge be proved true, irrespective of slight inaccuracy in the details.” [Citations.] 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.” ’ ” (Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1021.)

Statements of opinion are typically protected from defamation liability. However, a “statement that implies a false assertion of fact, even if couched as an opinion, can be actionable.” (McGarry, supra, 154 Cal.App.4th at p. 112.) “To determine whether a statement is actionable fact or nonactionable opinion, courts use a totality of the circumstances test of whether the statement in question communicates or implies a provably false statement of fact. [Citation.] Under the totality of the circumstances test, ‘[f]irst, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense. . . . [¶] Next, the context in which the statement was made must be considered.’ ” (Id. at p. 113.)

A. The Statements Were True Factual Statements or Opinions
B.
The court determined Pearce’s characterization of the campaign video as racially insensitive and offensive, and mocking of Muslims, were statements of opinion, premised on the true fact that the video involved Muslims. Plaintiffs challenge this conclusion. They claim the statements imply a false assertion of fact because the “video was a James Bond spoof, nothing more.” We disagree. In the video, N.Y. portrays a hero who saves a student from being kidnapped from a “radical group” of Muslims brandishing imitation firearms, and says voting for him “ ‘will protect you from ISIS.’ ” Students found the video offensive. Pearce’s statements were statements of opinion that did not imply a provably false assertion of fact. (McGarry, supra, 154 Cal.App.4th at p. 117.)

Next, the court concluded Pearce’s statement that N.Y. “and his friend dressed up like Muslim terrorists” was a factual statement that was “mostly true.” Plaintiffs have not established this conclusion is erroneous. In the video, N.Y. referred to a well-known terrorist group, and the video included “individuals who appeared to be Muslim” using guns.

Third, plaintiffs contend the court should have determined Pearce’s statements regarding the campaign contract were false. We are not persuaded. N.Y. agreed to the provisions in the election packet, which stated “inappropriate material will be removed and the candidate is subject to be[ing] pulled from the election.” Referring to the election packet as a campaign contract is a minor inaccuracy that does not render the statement false. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1262–1263.) That N.Y. was reinstated as ASB president does not demonstrate the statement is false.

Finally, the court determined Pearce’s statement that N.Y.’s parents “ ‘brought multiple suits against the District’ and the ‘parents changed their (losing) lawsuit to a freedom of speech suit’ ” was a statement of fact. The court determined the reference to the lawsuits asking “for big $$$” was an opinion, but it implied that N.Y. was seeking a monetary award, which was a statement of fact. According to the court, the “gist” of that portion of the statement was true because N.Y. had filed a writ of mandate, and hired a lawyer, who indicated a federal lawsuit seeking damages “was forthcoming.” Plaintiffs have not established the court’s conclusions are incorrect.

B. N.Y. Was a Limited Purpose Public Figure

A “limited purpose” public figure is “ ‘an individual who “voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues.” [Citation.] . . . [T]he “limited purpose” public figure loses certain protection for his . . . reputation only to the extent that the allegedly defamatory communication relates to his . . . role in a public controversy.’ ” (McGarry, supra, 154 Cal.App.4th at p. 113.)

To characterize a plaintiff as a limited purpose public figure, “there must be a public controversy about a topic that concerns a substantial number of people,” i.e., a “publicly debated” issue. (Grenier v. Taylor (2015) 234 Cal.App.4th 471, 484.) “Second, the plaintiff must have voluntarily acted to influence resolution of the issue of public interest. To satisfy this element, the plaintiff need only attempt to thrust himself . . . into the public eye.” (Id. at p. 484.) This determination “can only be resolved by considering the totality of the circumstances.” (Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 254–255.) Whether a plaintiff is a public figure is a question of law we review de novo. We review the trial court’s resolution of disputed factual questions bearing on the public figure determination for substantial evidence. (Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 264.)

Plaintiffs claim there was no controversy beyond the school when Pearce posted on social media and that N.Y. was “engulfed” in the controversy created by Pearce. This myopic view ignores the totality of the circumstances. N.Y.’s video offended students and resulted in discipline; the discipline prompted N.Y. to file a lawsuit in state court and to threaten federal litigation; in response to the litigation, the district changed its decision and reinstated N.Y. as president. Teachers, parents, and students were upset by the district’s handling of the misconduct, which generated a student protest, a “media frenzy,” and a contentious school board meeting. These circumstances easily satisfy the public controversy requirement (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1164) and establish N.Y., through his own voluntary acts, attempted to influence the resolution of the public issue. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25.)

C. Plaintiffs Failed to Establish a Reasonable Probability of Demonstrating Malice

The trial court determined plaintiffs failed to establish a probability of establishing a prima facie case of actual malice, i.e., that Pearce knew the information in the social media postings was false or that she acted “with reckless disregard of whether it was false.” (Dickinson v. Cosby, supra, 37 Cal.App.5th at pp. 1155–1156.) Applying an independent standard of review, we reach the same result. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 88.)

Plaintiffs claim Pearce acted in reckless disregard of the truth because she failed

to verify the teacher’s information. They are mistaken. “ ‘[M]ere failure to investigate the truthfulness of a statement, even when a reasonably prudent person would have done so, is insufficient’ to demonstrate actual malice.” (Christian Research Institute v. Alnor, supra, 148 Cal.App.4th at p. 90.) There is no evidence Pearce “purposefully avoided

the truth or deliberately decided not to acquire knowledge of facts that might confirm

the probable falsity of [the information]” the teacher provided. (McGarry, supra, 154 Cal.App.4th at p. 114.) In her declaration, Pearce averred she “trusted the information” from the teacher, because she knew the teacher and was aware of the teacher’s “ties to the Leadership program.” Pearce’s declaration also establishes she had personal knowledge of some information in the social media posts because her daughter, who was ASB president, told her about the campaign video and resulting discipline.

In their opposition, plaintiffs offered no evidence Pearce doubted the truth of the information or that she purposefully failed to confirm the veracity of the information. (See Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 259, 266 [publisher’s failure to contact subject of publication did not demonstrate malice; record did not suggest publisher “had any serious doubt as to the reliability of the sources or the truth of the challenged statements”]; Hicks v. Richard, supra, 39 Cal.App.5th at p. 1178 [no evidence author lacked reasonable grounds for believing the truth of the statements].) That Pearce sent an email stating “[a]nd so it begins” does not, as plaintiffs suggest, “reinforce[] the impression of malice.”

DISPOSITION

The order is affirmed. Pearce is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

_________________________

Jones, P. J.

WE CONCUR:

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Needham, J.

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Burns, J.

A154761