Modification: Collins v. Waters

JOE E. COLLINS III,

Plaintiff and Appellant,

v.

MAXINE WATERS et al.,

Defendants and Respondents.

No. B312937

Los Angeles County Super. Ct. No. 20STCV37401

California Court of Appeal

Second Appellate District

Division Eight

Filed June 5, 2023

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING

[NO CHANGE IN JUDGMENT]

THE COURT:

IT IS ORDERED the opinion in the above-entitled matter filed on May 10, 2023, be modified in the following ways:

1. On page 2, the following sentences shall be added to the end of the first full paragraph:

The test is subjective, not objective. (St. Amant, supra, 390 U.S. at p. 731.)

2. On page 2, in the last paragraph, the fourth sentence, "He showed Waters a document saying so," shall be replaced with the following sentence:

He publicized a document saying so.

3. On page 3, in the paragraph that continues from page 2, the sentence "Waters easily could have checked its authenticity, but did not," shall be replaced with the following sentence:

In the trial court, Collins maintained Waters easily could have checked its authenticity; she neither denied this nor checked.

4. On page 6, the fourth full paragraph, "Waters's declaration did not say she asked the attorney for his personal or other knowledge about whether Collins's discharge in fact was dishonorable," shall be replaced with the following paragraph:

Waters's declaration did not say she asked the attorney whether Collins's discharge in fact was dishonorable or what else the attorney might know about this.

5. On page 7, in the third full paragraph, the third sentence, "He claimed it would have been easy for a member of Congress like Waters to check his military discharge status," shall be replaced with the following sentence:

Without objection, Collins testified in his written declarations that it would have been easy for a member of Congress like Waters to check his military discharge status.

6. On page 8, the following paragraph shall be added between the first and second full paragraphs:

In response to Collins's opposition, Waters did not object to, or attempt to contest, Collins's written evidence that she "easily" could have checked to verify his discharge status. Nor did she object or register disagreement when Collins's counsel argued at the motion hearing that Waters had access to many avenues, including the "horse's mouth," to confirm the information. In passing, we note that Waters, in footnotes to her petition for rehearing in our court, offers internet website citations and unsourced factual assertions in a tardy effort to controvert Collins's evidence. These footnotes lack even a request for judicial notice. We disregard these citations and assertions. The place to develop the factual record is the trial court.

7. On page 9, the fourth through sixth sentences of Section II, "It was error to end this suit at this early stage, for Collins established the minimal case needed to defeat Waters's special motion to strike. Crediting his evidence, as is necessary in an anti-SLAPP analysis, Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness," shall be replaced with the following three sentences:

It was error to end this suit at this early stage. Crediting Collins's evidence, as is necessary in an anti-SLAPP analysis, Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness, which, if believed by the fact finder, could amount to clear and convincing evidence of subjective actual malice.

8. On page 9, the last sentence of subsection A of Section II, "We review these laws," shall be replaced with the following sentence:

We review these legal cross-currents.

9. On page 10, the following sentences shall be added after the first citation in the third full paragraph:

While a defendant's failure to investigate an issue will not, alone, support a finding of actual malice, the fact a defendant purposely avoided learning the truth can support that finding. (Id. at p. 692; Khawar, supra, 19 Cal.4th at pp. 274-280.)

10. On page 10, the following paragraph shall be added between the third and fourth full paragraphs:

This standard is subjective, not objective. Reckless conduct is not measured by whether a reasonably prudent person would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of the publication. Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. (St. Amant, supra, 390 U.S. at p. 731.)

11. On page 11, the following paragraph shall be added between the first and second full paragraphs:

At trial, a public figure plaintiff like Collins must establish actual malice by clear and convincing evidence. In the context of a special motion to strike, however, plaintiffs instead must establish only a probability they can produce clear and convincing evidence of actual malice. (Edward v. Ellis (2021) 72 Cal.App.5th 780, 793 (Edward).) In opposing such a motion, defamation plaintiffs need not establish malice by clear and convincing evidence. Rather, they must meet their minimal burden by introducing sufficient facts to establish a prima facie case of actual malice. In other words, they must establish a reasonable probability they can produce clear and convincing evidence showing that the statements were made with actual malice. (Young v. CBS Broadcasting, Inc. (2012) 212 Cal.App.4th 551, 563; see also Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 217-218, 220-224 (Mitchell).)

12. On page 12, the first sentence of subsection B of Section II, "As a matter of federal constitutional law, Collins's discharge document put Waters on notice of a considerable risk that conclusive evidence wholly disproved her accusations," shall be replaced with the following sentence:

Collins's discharge document put Waters on notice of a considerable risk that conclusive evidence wholly disproved her accusations.

13. On page 12, in the fourth full paragraph, the second sentence, "Rather, we have additional facts: the plaintiff showed the defendant facially valid and easily verifiable documentary proof creating a considerable risk the defendant was uttering a falsehood; and yet the defendant kept uttering without checking," shall be replaced with the following sentence:

Rather, we have additional facts: the plaintiff responded to the defendant's charge with facially valid and easily verifiable documentary proof creating a considerable risk the defendant was uttering a falsehood; and yet the defendant kept uttering without checking.

14. On page 16, the following sentence shall be added to the end of the third full paragraph:

(See also Mitchell, supra, 70 Cal.App.5th at pp. 221-224.)

15. On page 17, the first full paragraph, "Or the trier of fact may question why Waters would call the Navy's attorney simply to have him read an opinion she already had, and why she would refrain from asking that attorney for his personal knowledge about Collins's discharge status," shall be replaced with the following paragraph:

Or the trier of fact may question why Waters would call the Navy's attorney simply to have him read an opinion she already had, and why she would refrain from asking that attorney for his own knowledge about Collins's discharge status.

16. On page 17, the third and fourth full paragraphs, "At this early stage of the case and without weighing the conflicting evidence, Collins established his case has at least minimal merit. [¶] Collins showed Waters an official-looking document that, if authentic, completely pierced through to absolute truth, whatever Collins's foibles might have been, no matter the federal court opinion, and irrespective of other information," shall be replaced with the following two paragraphs:

At this early stage of the case and without weighing the conflicting evidence, Collins established the prima facie case necessary to show his case has at least minimal merit.

Collins publicized an official-looking document that, if authentic, completely pierced through to absolute truth, whatever Collins's foibles might have been, no matter the federal court opinion, and irrespective of other information.

17. On page 18, the last sentence of the second full paragraph, "That fact---that it would have been easy to check---is in the record and is undisputed," shall be replaced with the following sentence:

That fact---that it would have been easy to check---is in the record and is undisputed in the record.

18. On page 18, the following paragraph shall be added between the third and fourth full paragraphs:

"Much of the evaluation of actual malice will turn on credibility evaluations. Waters's declarations steadfastly professed subjective blamelessness. The standard is subjective. There is no question about that. But testimony from a party can be trustworthy and conclusive, or self-serving and unreliable, or anywhere in between. Circumstantial evidence can be powerful proof to the contrary, or not. For instance, was Waters's call to Collins's opposing federal counsel structured and timed only to build a record and to confirm what she already knew? Or was it an open-ended inquiry that, in good faith, earnestly sought the truth? All these determinations are for the fact finder. (See Edward, supra, 72 Cal.App.5th at pp. 793-794.)"

19. On page 18, in the fourth full paragraph, the third and fourth sentences, "If fact finders drew this inference, Collins's proof could constitute clear and convincing evidence of actual malice. Reasonable minds could agree that people purposefully ignorant about the truth can have a high degree of awareness of probable falsity of a claim they deliberately avoid checking," shall be replaced with the following two sentences:

If fact finders drew this inference, Collins's proof could constitute clear and convincing evidence of subjective actual malice. Reasonable minds could unhesitatingly agree that people purposefully ignorant about the truth can have a high degree of subjective awareness of probable falsity of a claim they deliberately avoid checking.

The petition for rehearing filed by Respondents Maxine Waters and Citizens for Waters is denied.

There is no change in the judgment.

GRIMES, Acting P. J. WILEY, J. VIRAMONTES, J.