Filed 4/15/14 Thieriot v. The Wrapnews CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


ELISABETH THIERIOT,                                                  B245022

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC484687)
         v.

THE WRAPNEWS INC. et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court for Los Angeles County,
Barbara M. Scheper, Judge. Reversed.
         Liner Grode Stein Yankelevitz Sunshine Regenstreif & Taylor, Stanton L.
Stein, Maribeth Annaguey, Ashley R. Yeargan; Esner, Chang & Boyer and Stuart
B. Esner for Plaintiff and Appellant.
         Sidley Austin, Frank J. Broccolo, Wesley R. Montalvo and Stephen G.
Contopulos for Defendants and Respondents.
      This is an appeal from a judgment entered after the granting of a special
motion to strike the defamation complaint filed by plaintiff Elisabeth Thieriot
against defendants The Wrap News Inc. (hereafter, TheWrap, erroneously sued as
The Wrapnews Inc.) and Steve Pond. Thieriot contends that the so-called anti-
SLAPP statute, Code of Civil Procedure section 425.16 (hereafter, section 425.16),
does not apply to her causes of action for defamation and false light invasion of
privacy because those claims do not arise from protected activities as defined in the
statute. She also contends that even if section 425.16 applies, she demonstrated a
probability of prevailing on her claims. We need not determine whether section
425.16 applies, because we conclude Thieriot presented sufficient evidence to
show a probability of prevailing. Accordingly, we reverse the judgment.


                                 BACKGROUND
      Thieriot’s causes of action for defamation and false light invasion of privacy
arise from an article, written by Pond, that was published on TheWrap’s website,
thewrap.com, on May 9, 2012. Headlined “Mayan Mystery: Doc Financier
Accused of Fleeing With Film Footage (Exclusive),” the article stated that a
documentary -- titled “Revelations of the Mayans 2012 and Beyond” -- “has
descended into disarray, with its executive producer [subsequently identified as
Thieriot] accused of fleeing with two dozen hard drives and 10 computer towers
containing the film’s footage, according to documents obtained by TheWrap.”
Pond wrote that according to the documents TheWrap obtained, Thieriot “filmed
without a valid permit on federal ground in Mexico and fled with the footage.”
The article went on to say that “[t]he documents are based on complaints filed by
the film’s producer, Raul Julia-Levy,” and quotes Julia-Levy stating that Thieriot
“‘ran away with the footage. . . . She was informed not to leave the country, but
she did.’” Although the article noted that questions have been raised about Julia-

                                         2
Levy’s identity -- and provided links to a 2005 New York Times article and a 2007
Los Angeles Times article that it said “cast[] doubt on Julia-Levy’s identity” -- it
stated that Julia-Levy provided TheWrap with his birth and baptismal certificates.
      Five days later, Thieriot filed the instant lawsuit against TheWrap and Pond.
The complaint alleges that the article explicitly and/or implicitly accuses Thieriot
of fleeing Mexico in violation of a government order, stealing footage and
equipment related to the documentary, and filming on federal ground in Mexico
without authorization. The complaint alleges these accusations are false, and the
documents and the article are based solely on false claims by Julia-Levy. Thieriot
alleges that TheWrap published the article “despite receiving information, prior to
publishing it, that Julia-Levy is not credible and has a well-publicized history of
making false statements of fact to governmental agencies,” and despite a request
by Thieriot’s representative for time to allow him to investigate and provide further
facts and documents to Pond before posting the article. Finally, the complaint
alleges that the accusations set forth in the article have been repeated and
republished in various media throughout the world, and have resulted in headlines
that Thieriot is “wanted” in Mexico.


A.    Defendants’ Special Motion to Strike
      Defendants filed a special motion to strike the complaint. They argued that
section 425.16 applies to Thieriot’s complaint for four reasons: (1) the article at
issue addresses a criminal investigation, which defendants contended constitutes an
issue of public interest; (2) the article “addresses a dispute between two persons of
notoriety,” in that both Thieriot and Julia-Levy are “routinely featured in the
press”; (3) the article addresses a documentary regarding the Mayan culture and
prophecies about the year 2012, which is of interest to the public; and (4) the
article attracted widespread interest, as demonstrated by the complaint’s allegation

                                          3
that several other media outlets republished the account set forth in the article.
Defendants also argued that Thieriot could not establish a probability of prevailing
on her claims because (1) the article is privileged under Civil Code section 47,
subdivision (d); (2) Thieriot is a limited purpose public figure, and cannot show by
clear and convincing evidence that defendants published the article with actual
malice; (3) even if Thieriot were not a public figure, she cannot establish that
defendants published negligently; and (4) Thieriot cannot establish she is entitled
to damages.
      In support of their motion, defendants submitted, among other things, a
declaration from Pond, the author of the article. Pond declared that he had been
introduced to Julia-Levy by a respected entertainment publicist sometime before
August 2011, when Pond wrote the first of five articles about the documentary
entitled “Revelations of the Mayans 2012 and Beyond.” Julia-Levy provided Pond
with information for all of the articles. Pond stated that, “[a]lthough some readers
disputed Julia-Levy’s claims about the origins and history of the Mayan people,
prior to the publication of the most recent Article [i.e., the article at issue here],
[Pond] never received any complaints or learned of any discrepancies in the
accounts that Julia-Levy provided respecting the filming of the documentary.”
      In his declaration, Pond described his investigation prior to writing the
article. He received a called from Julia-Levy on April 21, 2012, during which
Julia-Levy told him that problems had arisen concerning the documentary and that
“further details would be forthcoming.” Julia-Levy called again on May 7, and
told Pond “he had initiated proceedings against [Thieriot] in Mexico,” that Thieriot
“absconded” with hard drives and computer towers containing the film footage,
that Thieriot had filmed on federal ground in Mexico without a permit, and that
Thieriot “‘was told not to leave the country, but she did.’” Julia-Levy also gave



                                            4
Pond three documents, written in Spanish, to support his statements. Pond had all
three documents translated into English.
       The first document appears to be an account of a sworn statement that Julia-
Levy gave to the Office of the State Attorney General for the Mexican state of
Campeche. According to the English translation provided by defendants in support
of their motion, Julia-Levy appeared before an investigative agent from the Office
of the Public Prosecutor on April 18, 2012 “for the purpose of confirming and
expanding his initial statement.” He told the agent, under oath, that the person he
hired to recruit the film crew, Eduardo Vertiz Mascareñas, has in his possession all
of the equipment Julia-Levy reported was taken without his authorization. Julia-
Levy said he was filing a formal criminal complaint against Mascareñas and
confirmed “the same complaint” against Thieriot and two others for fraud, breach
of trust, and theft.
       The second document is a letter on the letterhead of the Instituto Nacional de
Antropologia e Historia (INAH), addressed to “ELISABETH THIERIOT. [¶]
PRODUCTORA EJECUTIVA: REVELACIONES MAYAS DEL 2012 Y MÁS
ALLÁ.” (There is no address.) The letter is signed by Ramón Carrasco Vargas,
archaeologist, as Director of the Calakmul Archaeological Project. According to
the English translation provided by defendants, the letter, which is dated April 19,
2012, states that authority for the use of all material filmed in the archaeological
area of Calakmul and on the island Jaina has been withdrawn. The letter also
states that no one was authorized to be interviewed in certain areas, and that the
audiovisual material recorded by certain people “may not be used and must be
handed over as soon as possible.” It further states that the filming permits were
given to Julia-Levy, and therefore the filming done on the island of Jaina
“encroached upon federal lands, which constitutes a serious crime” under Mexican
laws. The letter ends with the following: “Finally, it only remains for me to

                                           5
suggest that you advise your legal team and the AMOROMA company in charge
of production to deliver this material to Mr. Raúl Julia-Levy, since not doing so
would be to violate the previous agreements, generating a complaint in the
appropriate courts in Mexico, as well as in the United States.”
      The third document was described by Julia-Levy as an order from the
Criminal Investigations Office of the General Attorney’s Offices of the State of
Campeche. In his declaration, Pond declared that, based upon his review of the
document, “it appeared that the Mexican government was ordering [Thieriot] to
appear to provide a statement respecting Julia-Levy’s allegations and that the
Mexican authorities were looking for and intended to seize the property that Julia-
Levy claimed was stolen.” He also stated that it “indicated to [him] that [Thieriot]
was not supposed to leave the country until she complied with the demands set
forth in the [document].” The certified English translation of the document (which
is attached as an exhibit to Thieriot’s complaint), however, does not comport with
Pond’s understanding. Instead, it is a letter signed by the investigative agent who
took Julia-Levy’s statement set forth in the first document -- Angelica Concepcion
Hernandez Calderon -- and addressed to Licenciado Renato Sales Heredia, General
Attorney of the State of Campeche. The agent states that she has attached copies
of certain files “with the purpose of sending it to all General Attorney’s Offices of
the Mexican Republic so that they provide assistance to this office and order to the
corresponding party” that certain proceedings are carried out. Those proceedings
are (1) locating Thieriot and other parties “so that they provide their statements
with the understanding that once they finish with the proceeding they may leave
the facilities of the corresponding Attorney’s Office”; and (2) securing the property
that Julia-Levy asserted was taken without authorization. In other words, the letter
is a request for assistance from other General Attorney’s Offices; it is not directed
to Thieriot and does not order Thieriot to do anything.

                                          6
        Pond declared that based upon his understanding of these documents, he did
not doubt the accuracy of Julia-Levy’s accusations against Thieriot. Nevertheless,
he tried to reach Thieriot “to obtain her side of the story,” but he did not get any
response. That same day, May 7, 2012, he sent an e-mail to Sheila McCarthy,
another person involved in the film. He wrote that he “received some documents
alleging that Elisabeth Thieriot has absconded with the footage and has a warrant
out for her arrest,” and asked McCarthy if she had any information she could share.
McCarthy responded by e-mail the next morning. She told Pond that she was “not
aware of any ‘warrant for her arrest,’” and said that she was told a press release
would be issued soon by Stanton “Larry” Stein. She provided Stein’s phone
number and suggested that he might give Pond the exclusive to the story. She also
provided a link to a July 19, 2007 article in the Los Angeles Times regarding Julia-
Levy.
        Pond declared that he called Stein that same day “but [Stein] refused to
speak on the record and would not commit to a specific time for providing any
information.” Pond stated that, although Stein told him not to trust Julia-Levy and
referred Pond to articles raising concerns about Julia-Levy’s credibility, Stein “was
unwilling to even generically deny any of Julia-Levy’s allegations on the record or
that [Thieriot] had left Mexico.” Pond believed that Stein’s refusal to deny the
allegations on the record indicated that the allegations “had merit.”


B.      Thieriot’s Opposition to the Special Motion to Strike
        In opposing defendants’ special motion to strike, Thieriot asserted that
section 425.16 did not apply because the article did not involve any issue of public
interest. Specifically, she argued that (1) a criminal investigation does not
necessarily constitute an issue of public interest; (2) a private dispute between two
people, even if they are “persons of notoriety,” is not a matter of public interest;

                                           7
(3) the public’s interest in Mayan culture and prophecies does not make the article
about a private dispute a matter of public interest; and (4) subsequent republication
of the article’s content did not turn the information into a matter of public interest.
       Thieriot also argued that even if section 425.16 applied, the motion should
be denied because she could demonstrate a probability of prevailing on the merits.
To that end, she submitted evidence to show that the express or implied assertions
of facts in the article were false and that defendants published the article with
actual malice.1 That evidence included declarations from Thieriot, her attorneys in
the United States and Mexico, her executive assistant, several people who had been
involved in the filming of the documentary (including archaeologists who work for
INAH), and Alan Michael Brain Delgado (Brain), a documentary filmmaker who
also is an independent journalist.
       In her declaration, Thieriot described how she got involved in the project
and the formation of a production company with Julia-Levy (R & E Productions,
LLC), in which she is the sole Investment Member, owning 100 percent of the
investment and assets of the company. She discussed the planning for shooting the
documentary, and problems that arose as a result of Julia-Levy’s actions. In
describing the events that led to the termination of filming on the documentary,
Thieriot conceded that she received from Julia-Levy a copy of the third document
Pond described in his declaration – the letter from investigative agent Angelica
Concepcion Hernandez Calderon addressed to Licenciado Renato Sales Heredia,
General Attorney of the State of Campeche – on the day after it was written. She
declared, however, that she never received any communications from any
governmental officials or authority in Mexico or Guatemala, or any order to appear
1
        Thieriot did not in her opposition challenge defendants’ assertion that she is a
public figure for purposes of her defamation claim, but reserved the right to challenge
that assertion at trial.


                                             8
or remain in either country or to turn over any equipment. Finally, Thieriot stated
that, as a result of the article posted by Pond and TheWrap, she has lost at least one
significant business deal and her ability to raise money on behalf of charitable
organizations with which she is involved has been negatively impacted.
      Jose Agustin Anaya Cancino and Adriana Iveth Sanchez Lopez, two
archaeologists who work for INAH and were hired by the documentary to speak
about various topics, submitted declarations stating that no archaeologist –
including Ramón Carrasco Vargas, the purported author of the second document
Pond described in his declaration – has the authority to withdraw permission that
INAH has given to visit or film at any location. In addition, Cancino stated that he
had never seen an email, purportedly sent by him, that Julia-Levy forwarded to
Thieriot.
      The declarations of Eduardo Vertiz Mascareñas, the executive producer of
the Mexican and Guatemalan units of the documentery, and Emiliano Chaparro,
the director of photography, described some of the events that took place before
and during the shooting of the documentary, and stated that the equipment Julia-
Levy claimed had been stolen had been either purchased or rented by R & E
Productions. Mascareñas also declared that they had all required permits while
they were filming, and they did not go onto Jaina Island to film, and Chaparro
declared that when Julia-Levy brought the police to his hotel room to seize the
filming equipment Julia-Levy claimed was his, the police declined to do so.
      Thieriot’s executive assistant, Hernan Horacio Mendez, who reviewed the
bank statements for R & E Productions and receipts submitted by Julia-Levy,
submitted a declaration stating that various equipment that Julia-Levy asserted
Thieriot had taken had been purchased using R & E Productions’ debit card.
      The declaration of Thieriot’s attorney in Mexico, Martiz Guadalupe Aguilar
Arcique, states that Arcique received a certificate from a person holding the

                                          9
position of Delegate of Centro INAH Campeche confirming there is no record of
any administrative proceeding, criminal complaint, criminal proceeding, or civil
complaint against Thieriot in the Centro INAH Campeche files.
      Thieriot’s attorney in the United States, Stanton L. Stein, submitted a
declaration describing his conversation with Pond on May 8, 2012, the day before
the article was published. Stein declared that he received a telephone call from
Pond on the morning of May 8. Pond told him that he was trying to determine
what was going on with the documentary. Stein told Pond that he had just been
retained by Thieriot, and was still getting up to speed on the case. He “cautioned
Mr. Pond that his key, if not only, source, [Julia-Levy] may not be credible and
that Mr. Pond and The Wrap should not publish a story based upon [Julia-Levy’s]
statements alone because doing so could expose them to claims for defamation and
false light.” Stein also “pointed Mr. Pond to a Los Angeles Times article regarding
an exhaustive report filed by the Los Angeles District Attorney to exclude [Julia-
Levy’s] testimony from a criminal case.”
      Stein also declared that he told Pond “that it is generally not [his] practice to
speak on the record unless it is absolutely necessary for the client that [he] do so,”
but he told Pond he would speak to his client and get back to Pond within a day or
two with accurate information about the events. Stein also told Pond that no other
publications had contacted anyone “on our side.” Pond did not tell Stein that he
was under a deadline, or that Stein’s offer to get back to him in a day or two would
be a problem. Therefore, Stein expected that the article would not be published
until after he spoke to Pond. Instead, the article was posted the following morning.
      Finally, the declaration of Brain, the documentary film director and
independent journalist, described Brain’s research into some of the claims made in
the earlier articles Pond wrote about the documentary, and Brain’s efforts to
contact Pond to share the results of that research. Brain first learned of the

                                          10
documentary when he read an article written by Pond and posted on TheWrap’s
website on September 26, 2011. The article stated that the governments of Mexico
and Guatemala were working with Julia-Levy on the documentary, and officials
from both governments supported claims that there was evidence of contacts made
between the Mayans and extraterrestrials. Brain posted a story about the
documentary and Julia-Levy on his online blog about fringe science, alternative
history and paranormal activity, losdivulgadores.com.
      Brain declared that he began to doubt the authenticity of statements made by
Julia-Levy in late October 2011 following “two disturbing reports.” The first was
an audio interview with Julia-Levy on a Spanish internet radio show, during which
Julia-Levy said that statements in Pond’s September 26 article about evidence of
3,000 year old landing pads, which were attributed to the Minister of Tourism of
Campeche, actually were statements that Julia-Levy made. The second report was
an article posted in a Mexican online magazine, De10.mx, on October 11, 2011.
Apparently, Julia-Levy provided De10.mx with a photograph that he said was an
artifact called “The Mayan extraterrestrial treaty.” De10.mx conducted its own
investigation and reported that the object in the photograph actually was an artifact
called “Estela 19” from the Olmec civilization, and was not related to
extraterrestrials. De10.mx posted a letter of apology from Julia-Levy, who
admitted that the photograph was not what he originally claimed it was.
      Brain posted an article on his blog in late October 2011, explaining the
issues raised by the two reports, and began his own investigation of Julia-Levy and
the documentary. Brain called Arturo Mendez, the Director de Atencion a Medios
del INAH, who told him that neither INAH nor the government of Mexico was
involved in the production of the documentary (other than granting permits to film
at various locations), and INAH did not support Julia-Levy’s statements that he
had discovered artifacts confirming extraterrestrial contact with the Mayans. Brain

                                         11
also contacted the Guatemalan National Institute of Tourism (INGUAT) to confirm
a statement by its director that appeared in the September 26 article written by
Pond. The article had stated that the director of INGUAT said, “Guatemala, like
Mexico, home to the ancient yet advanced Mayan civilization has also kept certain
provocative archeological discoveries classified, and now believes that it is time to
bring forth this information in the new documentary.” On November 8, 2011, in
response to Brain’s inquiry, INGUAT issued a statement that its only involvement
with Julia-Levy or the documentary was as mediators to facilitate access to various
archaeological sites. The statement also denied that Guatemala had any hidden
secrets.
      On November 9, 2011, Brain obtained Pond’s e-mail address from
TheWrap’s website and sent an e-mail to Pond advising him of the research he had
conducted and the denials by INGUAT and INAH. Brain also contacted Pond
through Twitter, telling him about the e-mail he sent. He did not receive a
response to his e-mail or tweets.
      In December 2011, Brain tried to confirm a statement that appeared in
another article written by Pond that was posted on TheWrap on October 26, 2011.
Pond wrote in the article that Julia-Levy “passed along a direct quote that, he
claimed, came from no less than Stephen Hawking, who he said ‘is going to work
with us’ and will be included in his film.” The article stated that “[a]n email sent
to a representative for Hawking asking about the authenticity of the quote was not
answered.” Brain sent an e-mail to Hawking’s office, asking about Hawking’s
involvement in the documentary, and received a response stating that Hawking’s
office had never heard of the documentary or Julia-Levy, and that Hawking was
not involved with either of them.
      After TheWrap posted another article by Pond about the documentary on
March 27, 2012, Brain sent another e-mail to Pond, advising him of his research

                                          12
and the denials by INGUAT, INAH, and Hawking. Brain also posted on
TheWrap’s website two comments in the “Comments” section following the
March 27, 2012 article, to ensure that his messages reached Pond. He did not
receive any response to his posts or e-mails.


C.     The Trial Court’s Ruling
       The trial court found that defendants’ publication of the article was conduct
in furtherance of their constitutional right to free speech in connection with an
issue of public interest. The court found that defendants showed “that the article
discussed criminal accusations against [Thieriot], that [Thieriot] and Raul Julia-
Levy, the individual making the accusations, are persons of which the public has
taken an interest and the subject of the documentary was of public interest.”
Therefore, the court concluded that Thieriot’s claims were subject to section
425.16, and the burden shifted to Thieriot to show a probability of prevailing on
the merits.
       The court found that Thieriot failed to meet her burden. The court noted that
the article at issue merely reported on allegations made by Julia-Levy against
Thieriot and did not state that Thieriot had been charged with any crime.
Therefore, the court concluded that the statements in the article were not false, and
there was “nothing in the specific language or the tenor of the article that
insinuates that defendants believe that [Julia-Levy’s] accusations are true.”2




2
       The trial court rejected defendants’ assertion that the statements in the article were
privileged under Civil Code section 47, subdivision (d), noting that Thieriot presented
evidence that there were no official proceedings against her in Mexico, and the extent of
the Mexican government’s investigation of the matter, if any, is unclear.


                                             13
      The trial court granted defendant’s special motion to strike and dismissed the
complaint. Thieriot timely filed a notice of appeal from the order granting the
motion and dismissing her complaint.


                                    DISCUSSION
A.    Law Governing Special Motions to Strike
      “Section 425.16 provides an expedited procedure for dismissing lawsuits
that are filed primarily to inhibit the valid exercise of the constitutionally protected
rights of speech or petition. . . . [¶] A special motion to strike a complaint under
section 425.16 involves two steps. First, the moving party has the initial burden of
making a threshold showing that the challenged cause of action is one arising from
a protected activity. (§ 425.16, subd. (b)(1).) In order to meet this burden, the
moving party must show the act underlying the challenged cause of action fits one
of the categories described in section 425.16, subdivision (e). [Citation.] [¶] Once
the moving party has made the threshold showing, the burden in step two shifts to
the opposing party. Under step two of the statutory analysis, the opposing party
must demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1).)
A cause of action is subject to dismissal under the statute only if both steps of the
anti-SLAPP analysis are met.” (Albanese v. Menounos (2013) 218 Cal.App.4th
923, 928.)
      “Review of an order granting or denying a motion to strike under section
425.16 is de novo. [Citation.] We consider ‘the pleadings, and supporting and
opposing affidavits . . . upon which the liability or defense is based.’ [Citation.]
However, we neither ‘weigh credibility [nor] compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that



                                           14
submitted by the plaintiff as a matter of law.’ [Citation.]” (Soukup v. Law Offices
of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
       “[T]o meet his or her burden, the plaintiff need only make a ‘“sufficient
prima facie showing of facts to sustain a favorable judgment if the evidence
submitted by the plaintiff is credited.”’ [Citation.]” (Wong v. Jing (2010) 189
Cal.App.4th 1354, 1368.) “An anti-SLAPP-suit motion is not a vehicle for testing
the strength of a plaintiff’s case, or the ability of a plaintiff, so early in the
proceedings, to produce evidence supporting each theory of damages asserted in
connection with the plaintiff’s claims. It is a vehicle for determining whether a
plaintiff, through a showing of minimal merit, has stated and substantiated a
legally sufficient claim. [Citations.]” (Wilbanks v. Wolk (2004) 121 Cal.App.4th
883, 906.)
       In the present case, Thieriot challenges the trial court’s ruling as to both
steps of the anti-SLAPP analysis, i.e., whether the complaint arises from protected
activity and whether Thieriot demonstrated a probability of prevailing. As to the
first step, the question whether the published article addressed an issue of public
interest is a close one. We need not answer that question, however, because we
conclude that Thieriot produced sufficient evidence to demonstrate a probability of
prevailing on her defamation and false light invasion of privacy claims.3


B.     Probability of Prevailing
       “The tort of defamation ‘involves (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.’ [Citation.]” (Taus v. Loftus (2007) 40 Cal.4th 683,
3
       An action for false light invasion of privacy “is in substance equivalent to a libel
[or defamation] claim.” (Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d
1123, 1133.) Therefore, we will not separately address Thieriot’s second cause of action.


                                             15
720.) “[F]alse statements charging the commission of crime or tending directly to
injure a plaintiff in respect to his or her profession by imputing dishonesty or
questionable professional conduct are defamatory per se.” (Burrill v. Nair (2013)
217 Cal.App.4th 357, 383.) “If the person defamed is a public figure, he cannot
recover unless he proves, by clear and convincing evidence [citation], that the
libelous statement was made with ‘“actual malice” -- that is, with knowledge that it
was false or with reckless disregard of whether it was false or not.’ [Citation.]”
(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s
Digest).)
      The parties in this case dispute (1) whether the statements in the article were
false; (2) whether Thieriot is a public figure and, if so, whether she produced
sufficient evidence to establish actual malice; (3) whether the article was privileged
under Civil Code section 47, subdivision (d) (hereafter, section 47(d)); and
(4) whether Civil Code section 48a (hereafter section 48a) applies and precludes
Thieriot from establishing damages. We address each issue in turn.


      1.     Falsity
      “‘“The sine qua non of recovery for defamation . . . is the existence of
falsehood.” [Citation.]’ [Citation.]” (Burrill v. Nair, supra, 217 Cal.App.4th at p.
387.) There is no question that Thieriot presented sufficient evidence that, if
believed by the trier of fact, would permit a finding that Julia-Levy’s accusations
against Thieriot were false and defamatory. Nevertheless, as noted, the trial court
here concluded that the article was not false because it indicated multiple times
that the accusations came from Julia-Levy and did not state that Thieriot had been
charged with any crime. Thieriot contends, however, that “when a news source
repeats defamatory charges it is no defense that the news source frames the story as
simply reporting that a third party has alleged those charges to be true.” We agree.

                                          16
       California has adopted the common law rule that “one who republishes a
defamatory statement is deemed thereby to have adopted it and so may be held
liable, together with the person who originated the statement, for resulting injury to
the reputation of the defamation victim.” (Khawar v. Globe Internat., Inc. (1998)
19 Cal.4th 254, 268.) Although California has limited this rule in some respects by
enacting Civil Code section 47, which provides that republication of defamatory
statements is privileged in certain defined situations (we address defendants’
assertion of privilege in section B.3., post), defendants cannot avoid liability
simply by stating in the article, even multiple times, that the accusations against
Thieriot were made by Julia-Levy.
       As our Supreme Court explained more than a hundred years ago, “[i]f A
says B is a thief, and C publishes the statement that A said B was a thief, in a
certain sense this would be the truth, but not in the sense that the law means. It
would constitute no defense to C, for it would be but a repetition by him of a
slanderous charge. His defense must consist in showing that in fact B is a thief.”
(Gilman v. McClatchy (1896) 111 Cal. 606, 612; see also Waite v. San Fernando
Pub. Co. (1918) 178 Cal. 303, 307 [“a defamatory article which would be libelous
per se, if its matter was directly stated, does not lose its quality in this regard
because it is couched in the form of an interview with another person”]; Ray v.
Citizen-News Co. (1936) 14 Cal.App.2d 6, 8-9 [“A false statement is not less
libelous because it is the repetition of rumor or gossip or of statements or
allegations that others have made concerning the matter”].) So it is in this case.
The fact that the article merely repeated allegations made by Julia-Levy or
described documents based upon those allegations does not resolve the issue of
falsity for the purposes of proving defamation. Therefore, the trial court erred in
finding that Thieriot did not show a probability of prevailing on the element of
falsity.

                                            17
       2.     Malice
       As noted, if the person alleging a defamation claim is a public figure, he or
she must “prove[], by clear and convincing evidence [citation], that the libelous
statement was made with ‘“actual malice” -- that is, with knowledge that it was
false or with reckless disregard of whether it was false or not.’ [Citation.]”
(Reader’s Digest, supra, 37 Cal.3d at p. 256.) Although Thieriot did not challenge
defendants’ assertion that she is a public figure in her opposition to defendants’
special motion to strike, she does so on appeal. Defendants argue that Thieriot
should not be allowed to make such an argument on appeal because it would
“deprive [them] of the ability to supplement the record with additional evidence.”
Although it is unclear what relevant evidence defendants would submit to support
their argument, we will assume for the purpose of this appeal that Thieriot is a
public figure who must establish actual malice.4
       We begin by noting that Thieriot was not required to establish actual malice
by clear and convincing evidence at this early stage of the case. “In opposing an
anti-SLAPP motion, a defamation plaintiff need not establish malice by clear and
convincing evidence, the standard applicable at trial. Rather, the plaintiff must
meet her minimal burden by introducing sufficient facts to establish a prima facie
case of actual malice; in other words, she must establish a reasonable probability
that she can produce clear and convincing evidence showing that the statements
were made with actual malice. [Citation.]” (Young v. CBS Broadcasting, Inc.
(2012) 212 Cal.App.4th 551, 563.)



4
       Nothing we say in this opinion is intended to imply that Thieriot is or is not a
public figure.


                                             18
      “[A]ctual malice can be proved by circumstantial evidence. ‘[E]vidence of
negligence, of motive and of intent may be adduced for the purpose of establishing,
by cumulation and by appropriate inferences, the fact of a defendant’s recklessness
or of his knowledge of falsity.’ [Citations.] A failure to investigate [citation],
anger and hostility toward the plaintiff [citation], reliance upon sources known to
be unreliable [citations], or known to be biased against the plaintiff [citations] --
such factors may, in an appropriate case, indicate that the publisher himself had
serious doubts regarding the truth of his publication.” (Reader’s Digest, supra, 37
Cal.3d at pp. 257-258, fn. omitted.)
      In this case, Thieriot presented evidence that defendants relied upon a source
-- their only source -- known to be unreliable. Indeed, it is not disputed that
defendants were aware that prosecutors from the Los Angeles District Attorney’s
Office had “filed a 3-inch-thick document [in a different, high-profile, case]
assailing the credibility” of Julia-Levy, and contended that Julia-Levy “had a
history of making false statements to police and in legal filings.” In fact,
defendants provided a link in the article at issue here to the Los Angeles Times
article that described the prosecutors’ filing. Insertion of that link in the article
does not necessarily demonstrate an absence of malice, however, because when
describing the Los Angeles Times article, defendants ignored its focus on Julia-
Levy’s lack of credibility generally, and refer to the article only as “casting doubt
on Julia-Levy’s identity.”
      Thieriot also provided evidence that another journalist, Alan Brain, sent e-
mails and tweets to Pond and/or TheWrap and posted comments in the
“Comments” section on the website, before the article at issue here was published,




                                           19
to warn defendants that claims made by Julia-Levy that were reported by Pond in
earlier articles about the documentary were false.5
       In addition to the evidence that defendants were aware there were reasons to
doubt the veracity of Julia-Levy’s statements -- which could support a finding of
malice (see St. Amant v. Thompson (1968) 390 U.S. 727, 732 [“recklessness may
be found where there are obvious reasons to doubt the veracity of the informant or
the accuracy of his reports”]) -- Thieriot also presented evidence that defendants
failed to reasonably investigate Julia-Levy’s claims. For example, Thieriot’s
attorney, Stein, declared that when he was contacted by Pond, he told Pond that he
was not yet up to speed on the facts because he had only recently been retained, but
he said he would provide Pond with accurate facts within a day or two, after he had
an opportunity to speak with Thieriot. According to Stein, based upon his
conversation with Pond, he believed the article would not be published until he got
back to Pond with the additional information. Instead, defendants published the
article the following morning.6 “‘Although failure to investigate [before
publishing] will not alone support a finding of actual malice, [citation], the
purposeful avoidance of the truth is in a different category.’ [Citation.]
‘[I]naction,’ i.e., failure to investigate, which ‘was a product of a deliberate

5
        We note that, in his declaration, Pond stated that “prior to the publication of the
most recent Article, [he] never received any complaints or learned of any discrepancies in
the accounts that Julia-Levy provided respecting the filming of the documentary” and
that, to the best of his knowledge, no one else at TheWrap received any such complaints.
At this stage of the case, however, before Thieriot has had an opportunity to conduct
discovery to determine if there is evidence that Brain’s e-mails were received and/or his
comments were reviewed, we must accept Thieriot’s evidence as true. (Soukup v. Law
Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3.)
6
      Once again, for the purpose of reviewing the order granting defendants’ special
motion to strike, we must accept as true Stein’s account of his conversation with Pond.
(Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3.)


                                            20
decision not to acquire knowledge of facts that might confirm the probable falsity
of [the subject] charges’ will support a finding of actual malice. [Citation.]”
(Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1048.)
      Finally, we note that a reasonable finder of fact could conclude, based upon
the translations of the documents that Julia-Levy gave to defendants, that
defendants’ acceptance of Julia-Levy’s account of the documents constituted a
reckless disregard of the truthfulness or falsity of his account. First, as noted, the
translation of the document described by Julia-Levy as an order from the Criminal
Investigations Office of the General Attorney’s Offices of the State of Campeche
(which Pond referred to in his declaration as the “CIO Directive”) is not an order at
all, let alone an order directed to Thieriot. Instead, it is a letter requesting
assistance from other General Attorney’s Offices. Nevertheless, defendants
reported that it “orders Thieriot and two others to appear and turn over the hard
drives and towers.”
      Similarly, defendants accepted, apparently without question or further
investigation, the authenticity of the letter on the INAH letterhead, purportedly
written by archaeologist Ramón Carrasco Vargas. Thieriot presented evidence that
no archaeologist, including Carrasco Vargas, has the power to withdraw
permission to film or use material filmed under a grant of permission by INAH.
Defendants’ failure to investigate Carrasco Vargas’ authority is particularly
troublesome in light of the incongruity of the last paragraph of the letter, in which
the archaeologist purports to provide a legal opinion when he “suggests” that
Thieriot deliver the filmed material to Julia-Levy “since not doing so would be to
violate the previous agreements, generating a complaint in the appropriate courts in
Mexico, as well as in the United States.”
      In short, if the evidence presented is credited, a reasonable trier of fact could
find that defendants’ acceptance of Julia-Levy’s claims was reckless in light of the

                                            21
“obvious reasons to doubt [his] veracity” (St. Amant v. Thompson, supra, 390 U.S.
at p. 732) and defendants’ “‘purposeful avoidance of the truth’” (Antonovich v.
Superior Court, supra, 234 Cal.App.3d at p. 1048). Therefore, the trial court erred
when it concluded that Thieriot did not present sufficient evidence to show a
probability of prevailing on the issue of malice.


      3.     Privilege
      Defendants argue that, even if Thieriot submitted sufficient evidence to
show a probability of prevailing on the issues of falsity and malice, their special
motion to strike was properly granted because the article is privileged under
section 47(d). We disagree.
      Under section 47(d), a privileged publication is one made “(1) By a fair
and true report in, or a communication to, a public journal of (A) a judicial,
(B) legislative, or (C) other public official proceeding, or (D) of anything said in
the course thereof, or (E) of a verified charge or complaint made by any person to a
public official, upon which complaint a warrant has been issued.” The trial court
found that the section 47(d) privilege did not apply because Thieriot presented
evidence that there was no “official proceeding” taking place in Mexico. We agree
that this evidence is sufficient to show that the privilege does not apply with regard
to the statements in the article about the purported INAH directives.
      Defendants argue, however, that the article is absolutely privileged under
section 47(d), because Julia-Levy presented criminal charges to the Mexican
government to institute proceedings against Thieriot, and there was an
investigation of those charges. But a report of Julia-Levy’s presentation of charges
to the Mexican authorities, standing alone, is not privileged under section 47(d),
because that statute protects reports of such charges only when a warrant has been
issued, and there is no evidence that a warrant was issued in this instance.

                                          22
(§ 47(d)(E).) To the extent defendants assert that the article’s report on the
investigation is privileged, Thieriot presented evidence that the article was not a
“fair and true report” of the investigation, because the article stated that Thieriot
was ordered “to appear and turn over the hard drives and towers,” and that she was
told not to leave Mexico, but Thieriot’s evidence shows that no such orders were
made. In fact, Thieriot presented evidence that to the extent the Mexican police
conducted an investigation, they apparently concluded that Julia-Levy did not have
a claim to the filming equipment he asserted was his, because the police declined
to seize it. Therefore, based upon the evidence submitted in connection with the
special motion to strike, we conclude, as did the trial court, that the statements in
the article are not privileged under section 47(d).7


       4.     Application of Section 48a
       Section 48a provides in relevant part: “In any action for damages for the
publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff
shall recover no more than special damages unless a correction be demanded and
be not published or broadcast, as hereinafter provided.” Defendants contended
below, and contend on appeal, that because Thieriot did not comply with section
48a’s requirement to demand a correction and did not properly allege special
damages in her complaint, she cannot establish she is entitled to recover any

7
       Similarly, we conclude that the neutral reportage privilege does not apply to the
statements at issue, even if Thieriot is found to be a public figure. The privilege is
defined as follows: “‘[W]hen a responsible, prominent organization . . . makes serious
charges against a public figure, the First Amendment protects the accurate and
disinterested reporting of those charges, regardless of the reporter’s private views
regarding their validity.’ [Citation.]” (Khawar v. Globe Intern., Inc., supra, 19 Cal.4th at
p. 268.) In the instant case, the charges were not made by a responsible, prominent
organization, but rather by a person who has been accused of making false reports to the
police. Therefore, the privilege does not apply.


                                            23
damages and therefore cannot establish a probability of prevailing on the merits of
her claim.8 We disagree.
       By its plain language, section 48a applies only when the defamatory material
is published in a “newspaper” or a “radio broadcast.” Defendants ask us to
interpret “newspaper” to include online publications such as TheWrap. We cannot
do so. “[A] reviewing court’s ‘fundamental task in construing a statute is to
ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.
[Citation.]’ [Citations.] The analysis starts by examining the actual words of the
statute, giving them their usual, ordinary meaning. [Citation.]” (Coburn v. Sievert
(2005) 133 Cal.App.4th 1483, 1494.)
       At the time the statute was enacted in 1931, or amended in 1945, a
“newspaper” was understood to mean a publication that was printed on
inexpensive paper, often daily. (See O’Grady v. Superior Court (2006) 139
Cal.App.4th 1423, 1460 [construing “newspaper” in California Reporter’s Shield
law, the court stated: “The term ‘newspaper’ presents little difficulty; it has always
meant, and continues to mean, a regularly appearing publication printed on large
format, inexpensive paper”].) Had the Legislature intended the statute to apply to
defamatory material published on an online website, it could have amended the
statute to say so, or add a statute to include such websites within the definition of
“newspaper,” as it did when it enacted Civil Code section 48.5 in 1949 to expand
the term “radio broadcast” to include both visual and sound radio broadcasting.
(Civ. Code, § 48.5, subd. (4).) Since the Legislature has not expanded the meaning




8
       The trial court did not address this contention, having ruled that Thieriot could not
prevail on her claims because the article was not false.


                                             24
of newspaper to include online publications, we must conclude that section 48a
does not apply here, and Thieriot therefore is not limited to special damages. 9


                                     DISPOSITION
              The judgment is reversed. Thieriot shall recover her costs on appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 WILLHITE, J.




              We concur:




              EPSTEIN, P. J.                     EDMON, J.*




9
        Even if section 48a applied, Thieriot’s claims would not be barred because she
presented sufficient evidence to meet her burden under section 425.16 to show that she
can state and substantiate a claim for special damages. (Soukup v. Law Offices of Herbert
Hafif, supra, 39 Cal.4th at p. 291 [“The plaintiff need only establish that his or her claim
has ‘minimal merit’”]; Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738
[section 425.16 “requires only ‘a minimum level of legal sufficiency and triability’”].)
On remand, she should be allowed to amend her complaint to correct the technical
deficiencies in her pleading of special damages.

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


                                            25
