fair report privilege in California

2024“Liberally construing the fair report privilege, as have prior appellate decisions” (J-M Manufacturing, supra, 247 Cal.App.4th at p. 101 ), we conclude the statutory courts, to avoid using the courts for satellite litigation, and to increase public participation in the political, legislative, and judicial processes.” (1996 Cal. Legis.

2022(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

2022Progress (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

2022(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 “comfo

2022Progress (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

2019The fair report privilege Defendants contend, and we agree, that the Times articles were absolutely privileged under Civil Code section 47, 19 subdivision (d) (section 47(d)).6 Under that provision (the fair report privilege), a publication is privileged if it is made “[b]y a fair and true report in . . . a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof . . . .” (§ 47(d)(1), italics added; see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974 (McClatchy) [“Even when the print m

2026“The fair report privilege ‘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.’ ” (Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 431 .) Whether the privilege applies is a question of law for the court to decide.

2024(Healthsmart Pacific, Inc. v. Kabateck (2016) 7 Cal.App.5th 416, 432 (Healthsmart).) Although the fair report privilege is more often invoked by news media defendants, it also protects those who, like the Lillys, communicate information about a judicial proceeding to the media.

2019For example, in Burrill v. Nair (2013) 217 Cal.App.4th 357 , 397-398, 158 Cal.Rptr.3d 332 , disapproved on another point in Baral v. Schnitt (2016) 1 Cal.5th 376 , 396, footnote 11, 205 Cal.Rptr.3d 475 , 376 P.3d 604 , the court stated that "[t]he [fair report] privilege has been held to apply to fair reports of police investigations." ( Burrill, at pp. 397-398, 158 Cal.Rptr.3d 332 .) It did not apply, Burrill held, "to a report of the charges made in a citizen's criminal complaint, made by the citizen who filed that complaint, when there is no evidence any official action has been taken with

2019For example, in Burrill v. Nair (2013) 217 Cal.App.4th 357, 397-398 , disapproved on another point in Baral v. Schnitt (2016) 1 Cal.5th 376, 396 , footnote 11, the court stated that “[t]he [fair report] privilege has been held to apply to fair reports of police investigations.” (Burrill, at pp. 397-398.) It did not apply, Burrill held, “to a report of the charges made in a citizen’s criminal complaint, made by the citizen who filed that complaint, when there is no evidence any official action has been taken with respect to the complaint.” (Id. at p. 398.) Consequently, the fair report privileg

2022(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

2017(See Kilgore v. Younger (1982) 30 Cal.3d 770, 795 ; McClatchy, supra, 189 Cal.App.3d at p. 975 .) Such accuracy is measured by the natural and probable effect the statements (2d ed. 2016 update) § 8:70 (contrasting the “older view” that “the fair report privilege for judicial proceedings in not ‘activated’ until some official action in the litigation has transpired,” with the “modern view” that “the fair report privilege . . . extends to a summary of the accusations in a complaint, though no official action has taken place”).

2019The fair report privilege Defendants contend, and we agree, that the Times articles were absolutely privileged under Civil Code section 47, subdivision (d) ( section 47(d) ). 6 Under that provision (the fair report privilege), a publication is privileged if it is made "[b]y a fair and true report in ... a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding , or (D) of anything said in the course thereof ...." ( § 47(d)(1), italics added; see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961 , 974, 234 Cal.Rptr. 702 ( McClatchy ) ["Ev

2019The fair report privilege Defendants contend, and we agree, that the Times articles were absolutely privileged under Civil Code section 47, 19 subdivision (d) (section 47(d)).6 Under that provision (the fair report privilege), a publication is privileged if it is made “[b]y a fair and true report in . . . a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof . . . .” (§ 47(d)(1), italics added; see McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974 (McClatchy) [“Even when the print m

2024Under Civil Code section 47, subdivision (d)(1), the fair report privilege protects a “ ‘fair and true report in, or a communication to, a public journal, of . . . a judicial . . . proceeding, or anything said in the course thereof.’ ” (Argentieri v. Zuckerberg (2017) 8 Cal.App.5th 768, 787 (Argentieri).) The fair and true report privilege is “absolute”—“that is, it applies regardless of the defendants’ motive for making the report—and forecloses a plaintiff from showing a probability of prevailing on the merits.” (Ibid.) We thus analyze the Lillys’ claim of the fair and true report privilege

2022(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 “comfo

2017(Cf. Albertson v. Raboff (1956) 46 Cal.2d 375, 382 [communication absolutely privileged for purposes of defamation does not prevent malicious prosecution action based on the communication]; see also Salzano, supra, 993 A.2d at p. 790 [availability of malicious prosecution cause of action supports application of fair report privilege to initial pleading].)11 11 The plaintiffs argue that we should reverse the order awarding the attorney defendants’ their attorney fees “[i]f this court reverses the trial court’s order granting” the anti-SLAPP motion.

2016(Cf. Albertson v. Raboff (1956) 46 Cal.2d 375, 382 [ 295 P.2d 405 ] [communication absolutely privileged for purposes of defamation does not prevent malicious prosecution action based on the communication]; see also Salzano, supra, 993 A.2d at p. 790 [availability of malicious prosecution cause of action supports application of fair report privilege to initial pleading].) 11 *438 DISPOSITION The order granting the attorney defendants’ special motion to strike and awarding the attorney defendants their attorney fees is affirmed.

2017(Stats. 1996, ch. 1055, § 1, pp. 6641-6642; Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1144, fn. 3 .) The additional language thus “create[d] the bridge” between the litigation privilege (which covered statements made in judicial proceedings) and the fair report privilege (which covered media reports of judicial proceedings) “to protect a third party who communicates this already privilege[d] material to the press.” (Assem.

2016(Stats. 1996, ch. 1055, §§ 1, 2, pp. 6641-6642; Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1144, fn. 3 [ 57 Cal.Rptr.2d 284 ].) The additional language thus “create[d] the bridge” between the litigation privilege (which covered statements made in judicial proceedings) and the fair report privilege (which covered media reports of judicial proceedings) ‘“to protect a third party who communicates this already privileged material to the press.” (Assem.

2017(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 ; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 ; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) The attorney defendants assert that their statements in the Fox 11 news report and the CBS radio program are covered by the fair report privile

2016(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 [ 201 Cal.Rptr.3d 782 ] (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [ 120 Cal.Rptr.2d 576 ]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 [ 54 Cal.Rptr.2d 830 ]; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ] [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) *431 The attorney defendants assert

2017Media Group Inc. (2010) 201 N.J. 500, 517 [ 993 A.2d 778, 789 ].) The court concluded: “We now align ourselves with the weight of modern authority and hold that the fair-report privilege extends to defamatory statements contained in filed pleadings that have not yet come before a judicial officer.” (Id. at p. 790.) 19 would have on the average person reading, viewing, or listening to the report.

2017Media Group Inc. (2010) 201 N.J. 500, 517 [ 993 A.2d 778, 789 ].) The court concluded: “We now align ourselves with the weight of modern authority and hold that the fair-report privilege extends to defamatory statements contained in filed pleadings that have not yet come before a judicial officer.” (Id. at p. 790.) 19 would have on the average person reading, viewing, or listening to the report.

2022(Id. at p. 259.) The article “was careful to attribute the reported information to police sources rather than stating it as a proven fact.” (Ibid.) In Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036 , the court held that the fair report privilege protected a series of articles “detail[ing] the fact that the State Auditor was conducting an investigation . . . ; the conduct of that investigation and statements made by various persons affected by or concerned with the subject of the audit; the substance of the background reports and charges leading up to the investigation; and a summ

2014(Paterno v. Superior Court (2008) 163 Cal.App.4th 1342, 1355, 1356 [“journalists may simply report the facts of proceedings without providing an explanation of those facts” and “are within their constitutionally protected rights to write an article describing the perspective of only one side of a controversy”]; Dorsey v. National Enquirer, Inc. (9th Cir. 1992) 973 F.2d 1431, 1436 [California’s fair report privilege “‘does not require the reporter to resolve the merits of the charges, nor does it require that he present the [plaintiff’s] version of the facts’”].) Because the AP’s articles accur

2022Although 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 hi

2014(Carver v. Bonds [(2005] 135 Cal.App.4th [328] 348–349; Mann[v. Quality Old Time Service, Inc. (2004)] 120 Cal.App.4th [90] 109.)” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 396 (Burrill).) “‘The privilege applies if the substance of the publication or broadcast captures the gist or sting of the statements made in the official proceedings.’ [Citations.] If Civil Code section 47, subdivision (d) applies, the statement is absolutely privileged regardless of the defendant’s motive for reporting it. [Citation.]” ( Hawran, supra, 209 Cal.App.4th 13 at p. 278 .) The fair report privilege has been

2017(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 ; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 ; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) The attorney defendants assert that their statements in the Fox 11 news report and the CBS radio program are covered by the fair report privile

2016(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 [ 201 Cal.Rptr.3d 782 ] (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [ 120 Cal.Rptr.2d 576 ]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 [ 54 Cal.Rptr.2d 830 ]; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ] [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) *431 The attorney defendants assert

2017(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 ; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 ; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) The attorney defendants assert that their statements in the Fox 11 news report and the CBS radio program are covered by the fair report privile

2016(See, e.g., J-M Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87, 98, 101 [ 201 Cal.Rptr.3d 782 ] (J-M Manufacturing); Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [ 120 Cal.Rptr.2d 576 ]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 [ 54 Cal.Rptr.2d 830 ]; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ] [because the defendant’s allegedly wrongful conduct was privileged, “there was no reasonable probability” that the plaintiff could prevail].) *431 The attorney defendants assert

2024(See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 960 [“Ordinarily we interpret related statutory provisions on the assumption that they each operate in the same manner . . . .”].) Our reading of the statute also promotes the intent of the 1996 amendment.

2024(Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36 (Edwards); see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1059 [“[t]he fact that cross-complaints had not yet been filed . . . is irrelevant” to the question of whether the communications about the contents of the cross- complaints that were ultimately filed were privileged].) This is so even though “[t]he language of section 47(b) itself expressly applies only to communications made ‘[i]n any . . . judicial proceeding’ ” and “includes nothing about communications made in a pre

2024(Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 36 (Edwards); see also Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1059 [“[t]he fact that cross-complaints had not yet been filed . . . is irrelevant” to the question of whether the communications about the contents of the cross- complaints that were ultimately filed were privileged].) This is so even though “[t]he language of section 47(b) itself expressly applies only to communications made ‘[i]n any . . . judicial proceeding’ ” and “includes nothing about communications made in a pre

2022The 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

2022The 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