                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 27 2010

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CRAIG ELMER CHAPMAN, AKA Owl,                    No. 09-16303

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00002-JMS-
                                                 LEK
  v.

JOURNAL CONCEPTS, INC., a                        MEMORANDUM*
California corporation, DBA The Surfer’s
Journal; JEFF JOHNSON; STEVE
PEZMAN,

              Defendants - Appellees,

  and

DEBEE PEZMAN; DAN MILNOR;
SCOTT HULET; JEFF DIVINE,

              Defendants.


                   Appeal from the United States District Court
                            for the District of Hawaii
                  J. Michael Seabright, District Judge, Presiding

                     Argued and Submitted October 12, 2010
                               Honolulu, Hawaii



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

       Craig Elmer Chapman sued Journal Concepts, Inc., Jeff Johnson and Steve

Pezman (collectively “Journal Concepts”) for defamation, in connection with a

magazine article that Johnson and Pezman wrote about Chapman. Chapman

appeals from the district court’s decisions on the parties’ motions for summary

judgment, the parties’ motions in limine, Journal Concept’s motion for judgment as

a matter of law and Chapman’s motion for a new trial. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      On summary judgment, the district court made a ruling regarding

Chapman’s status as a public figure. We need not address this ruling because we

affirm the district court on other dispositive grounds.

      The district court did not err in holding that references in the article to

William S. Borroughs are not actionable as defamation. The references are literary

allusions that cannot reasonably be understood to express statements of fact about

Chapman. See Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1193-94 (9th

Cir. 1989).

      The district court did not abuse its discretion in denying Chapman’s motion

to exclude evidence related to Chapman’s drug use. Evidence that Chapman may

have used drugs was probative of Pezman’s state of mind when he included this


                                           2
statement in the article, and his defense that the statement was substantially true

and thus not defamatory. Further, the district court instructed the jury that the

statements were being offered only to establish Pezman’s state of mind, and not for

their truth.

       The district court did not abuse its discretion by excluding evidence related

to the life and work of William S. Borroughs. The references to Borroughs were

not at issue in the trial, and the evidence was not necessary to provide context to

the article at issue. To the extent that the evidence was probative of the state of

mind of Johnson and Pezman, the district court did not abuse its discretion in

holding that the probative value was outweighed by the potential prejudice to

Journal Concepts and the likelihood of jury confusion. The district court also

properly excluded as irrelevant and likely to confuse the jury evidence related to a

pre-publication investigation that Pezman conducted for an article that was not at

issue in the trial and was published more than a decade earlier.

       The district court did not err in granting Journal Concepts’ motion for

judgment as a matter of law with respect to two of the allegedly defamatory

statements at issue in the trial. The first statement comes from an interview that

Pezman conducted with an individual named Jackie Baxter, which Pezman

recorded. Pezman quotes Baxter at length in the article. Chapman alleged that two


                                           3
sentences from Baxter’s quote were defamatory. Chapman’s argument rests on the

contention that Pezman conducted the interview after writing the commentary, and

directed Baxter to make the statement. Baxter, however, is illiterate, and his quote

in the article is very similar to the interview transcript. The transcript reflects that

the conversation was informal and off-the-cuff, not scripted and staged. Given

this, the district court properly held that no reasonable juror could conclude that

Pezman coached Baxter to make the statement.

      The second statement relates to an interview that Pezman conducted with

Herbie Fisher. Although Pezman did not quote Fisher accurately in the article,

“[m]inor inaccuracies do not amount to falsity so long as the substance, the gist,

the sting of the libelous charge [is] justified.” Masson v. New Yorker Magazine,

Inc., 501 U.S. 496, 517 (1991) (internal quotation marks omitted). Here, there is

only a minor difference between what Fisher said during the interview and the

quotation in the article; the gist of the statements is the same.

      The district court did not err in denying Chapman’s motion for a new trial.

Although the parties referred to Chapman’s 50(b) motion at argument, that issue is

not before us on appeal. The jury found that Chapman had failed to prove that the

statements at issue in the trial were false. There was sufficient evidence on the

record to support this finding. Chapman argues that the jury should have found


                                            4
that Pezman and Johnson acted with actual malice. Because the jury found that

Chapman had failed to prove falsity, it never reached the issue of actual malice.

See Miracle v. New Yorker Magazine, 190 F. Supp. 2d 1192, 1198 (D. Haw. 2001)

(stating that under Hawaii law, defamation requires “a false and defamatory

statement concerning another” and “fault amounting at least to negligence . . . and

actual malice where the plaintiff is a public figure”). Accordingly, we do not need

to decide whether the evidence would support a finding of actual malice.

      AFFIRMED.




                                         5
                                                          FILED
Chapman v. Journal Concepts, Inc., Case No. 09-16303      OCT 27 2010
Rawlinson, Circuit Judge, concurring:                  MOLLY C. DWYER, CLERK
                                                        U.S. COURT OF APPEALS

     I concur in the result.
