Filed 4/23/14 Sparks v. Associated Press CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


PHIL SPARKS,                                                         B250473

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC503090)
         v.

ASSOCIATED PRESS,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf M.
Treu, Judge. Affirmed.
         Phil Sparks, in pro. per., for Plaintiff and Appellant.
         Davis Wright Tremaine, Kelli L. Sager, and Jonathan L. Segal for Defendant and
Respondent.


                                          _______________________
       Appellant Phil Sparks appeals from the trial court’s order granting the special
motion to strike brought by respondent Associated Press (AP) pursuant to Code of Civil
Procedure section 425.16.1 Following the AP’s publication of two articles reporting on
civil restraining orders that were issued against Sparks, Sparks filed this action against
the AP for defamation and intentional infliction of emotional distress. The trial court
granted the AP’s special motion to strike on the grounds that the claims alleged arose
from acts in furtherance of the constitutional right of free speech and Sparks failed to
prove a probability of prevailing on the merits. We affirm.

           FACTUAL BACKGROUND AND PROCEDURAL HISTORY

I.     The AP’s Published Articles
       On July 31, 2012, the AP published a news article about a temporary restraining
order that had been issued against Sparks for allegedly making threats against singer
Sheryl Crow. That article specifically stated: “A judge has granted Sheryl Crow a
temporary restraining order against a man who is accused of threatening to shoot the
Grammy-winning singer-songwriter. [¶] The order requires Phillip Gordon Sparks, 45, to
stay 100 yards away and not attempt to contact Crow, her family or any of her workers.
She wrote in a sworn statement that she is fearful of Sparks because he has claimed in
profane online tirades that she has stolen money from him and broken into his house.
[¶] She also states Sparks recently went to the offices of an entertainment union and told
a worker that he was going to ‘just shoot’ her.”
       The July 31, 2012 article further provided: “A worker at the Screen Actors
Guild-American Federation of Television and Radio Artists wrote in a declaration
accompanying Crow’s filing that she spoke with Sparks on July 16 and he made the
threat against Crow. He also threatened to shoot film executive Weinstein because he
believed they were filming him and had stolen millions from him, the worker stated.”

1     Unless otherwise stated, all further statutory references are to the Code of Civil
Procedure.


                                              2
The article noted that the temporary restraining order was granted on July 24, and that a
hearing on a three-year protective order was scheduled for August 14. It also stated that
attempts to contact Sparks had been unsuccessful.
       On August 14, 2012, the AP published a second news article about the issuance
of a three-year restraining order against Sparks. That article stated, in pertinent part:
“A judge granted Sheryl Crow a three-year restraining order against a man who
acknowledged he threatened to shoot the singer-songwriter and film executive Harvey
Weinstein. [¶] Philip Gordon Sparks, 45, agreed to stay away from the Grammy winner
and Weinstein after an hour-long hearing in which he accused the pair of stealing $7.5
million from him, videotaping and following him without permission and leaving him
homeless. A forensic psychiatrist who interviewed Sparks recently called him
‘imminently dangerous’ and said his psychosis is directed intently at Crow. [¶] Superior
Court Judge James Hahn ordered Sparks to stay 300 yards away from Crow and
Weinstein and make no attempt to contact them.”
       Like the AP’s prior article, the August 14, 2012 article referenced the declaration
that was submitted by the Screen Actors Guild employee and the statement in that
declaration that Sparks had threatened to shoot Crow and Weinstein. The article also
reported as follows: “Sparks said he made the statement because he was frustrated
because he believes they stole from him and continued to follow him. [¶] ‘Mr. Sparks is
unambiguously delusional,’ forensic psychiatrist Dr. David Glaser testified during the
hearing. [¶] Neither Crow nor Weinstein attended the hearing.”

II.    Sparks’s Civil Lawsuits Against the AP2
       On November 13, 2012, Sparks filed his first civil action against the AP in Los
Angeles County Superior Court (Case No. BC495593). The complaint asserted a single
cause of action for defamation based on the AP’s publication of the August 14, 2012

2     According to a declaration submitted by the AP’s counsel, Sparks has filed at least
seven other lawsuits against media organizations apart from the AP, three of which have
been dismissed by the trial courts under section 425.16.


                                              3
article. On February 22, 2013, the trial court granted the AP’s special motion to strike
the complaint on the grounds that Sparks’s defamation claim was barred as a matter of
law by the fair report privilege of Civil Code section 47, subdivision (d), and by Sparks’s
failure to demand a retraction or to prove special damages under Civil Code section 48a.
The trial court entered a judgment in favor of the AP on March 18, 2013.
       On March 15, 2013, Sparks filed this action against the AP in Los Angeles County
Superior Court (Case No. BC503090). The complaint asserted two causes of action for
defamation and intentional infliction of emotional distress based on the AP’s publication
of the July 31, 2012 and August 14, 2012 articles. Sparks alleged that the AP falsely and
maliciously published in its articles that a union representative had stated that Sparks
threatened to shoot Crow and Weinstein, and that a forensic psychiatrist had interviewed
Sparks and diagnosed him as “imminently dangerous” and “unambiguously delusional.”
Sparks sought compensatory and punitive damages, and injunctive relief.

III.   The AP’s Special Motion to Strike the Complaint
       On May 20, 2013, the AP filed and served a special motion to strike Sparks’s
complaint. Due to an inadvertent error, however, the caption page on the notice of
motion incorrectly listed the case number of the prior action that Sparks had filed against
the AP. On June 10, 2013, after discovering the error, the AP filed and served a notice of
errata along with a copy of its motion with the corrected case number. On June 18, 2013,
Sparks filed an opposition to the special motion to strike. The hearing on the motion was
scheduled for June 19, 2013.
       At the June 19, 2013 hearing, Sparks appeared and objected to the AP’s motion on
the ground that it originally listed the incorrect case number. The trial court ordered that
the correct case number be interlineated on the AP’s motion, continued the hearing to
July 24, 2013, and offered Sparks the opportunity to file a new opposition. Sparks
indicated that the brief he had filed the day before was sufficient to constitute his
opposition on the merits, and the trial court agreed to accept that filing as Sparks’s
opposition.


                                              4
       At the July 24, 2013 hearing, Sparks again appeared and argued that the AP’s
motion should be denied because he had shown a probability of prevailing on the merits
of his claims. Following the hearing, the trial court granted the special motion to strike.
The court specifically found that the AP’s publication of the articles constituted protected
activity under section 425.16, subdivisions (e)(2) and (e)(4) because the articles reported
on judicial proceedings and concerned an issue of public interest. The court further
found that Sparks could not demonstrate a probability of prevailing on the merits because
his claims were barred by (1) the fair report privilege of Civil Code section 47,
subdivision (d), (2) the retraction demand provisions of Civil Code section 48a, and (3)
the doctrines of res judicata and collateral estoppel. On August 6, 2013, Sparks filed a
notice of appeal.

                                       DISCUSSION
I.     Standard Of Review
       Section 425.16 is commonly referred to as the anti-SLAPP statute.3 It provides,
in pertinent part, that “[a] cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech under the United
States or California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
Section 425.16 must be “construed broadly” to effectuate the statute’s purpose, which
is to encourage participation in matters of public significance and to ensure that such
participation is not chilled through an abuse of the judicial process. (§ 425.16, subd. (a).)
       Resolution of a section 425.16 special motion to strike requires a two-step process.
First, the moving party must make a threshold showing that the challenged cause of
action arises from constitutionally protected activity. (Rusheen v. Cohen (2006) 37


3     SLAPP is an acronym for “Strategic Lawsuit Against Public Participation.”
(Jarrow Formulas, Inc., v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)


                                               5
Cal.4th 1048, 1056; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
67.) If the moving party satisfies this prong, the burden shifts to the opposing party to
demonstrate a probability of prevailing on the merits of the claim. (Rusheen v. Cohen,
supra, at p. 1056; Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67.) We
review a trial court’s ruling on a special motion to strike de novo, conducting an
independent review of the entire record. (Flatley v. Mauro (2006) 39 Cal.4th 299,
325; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

II.    Arising From Constitutionally Protected Activity
       A cause of action arises from protected activity within the meaning of section
425.16 if the conduct of the defendant on which the cause of action is based was an
act in furtherance of the defendant’s right of petition or free speech. (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 78 [“statutory phrase ‘cause of action . . . arising from’
means simply that the defendant’s act underlying the plaintiff’s cause of action must
itself have been an act in furtherance of the right of petition or free speech”]; Navellier v.
Sletten (2002) 29 Cal.4th 82, 89 [“[i]n the anti-SLAPP context, the critical consideration
is whether the cause of action is based on the defendant’s protected free speech or
petitioning activity”].) Under section 425.16, an act in furtherance of the right of free
speech includes “any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial body, or any
other official proceeding authorized by law” (§ 425.16, subd. (e)(2)), and “any other
conduct in furtherance of the exercise of . . . the constitutional right of free speech in
connection with a public issue or an issue of public interest” (§ 425.16, subd. (e)(4)).
       Sparks does not dispute that the AP’s publication of the challenged articles
constituted protected activity under section 425.16. The articles reported on restraining
orders issued against Sparks as a result of court proceedings, and thus, concerned “an
issue under consideration . . . by a . . . judicial body” within the scope of section 425.16,
subdivision (e)(2). (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392,
397 [“courts have repeatedly held that reports of judicial proceedings . . . are an exercise


                                               6
of free speech within the meaning of section 425.16”]; see also Braun v. Chronicle
Publishing Co. (1997) 52 Cal.App.4th 1036, 1048-1049.) Because the restraining orders
were sought by Crow and Weinstein, two well-known figures in the entertainment
industry, the articles also were published “in connection with . . . an issue of public
interest” within the meaning of section 425.16, subdivision (e)(4). (Hall v. Time Warner,
Inc. (2007) 153 Cal.App.4th 1337, 1347 [“[a] statement . . . is ‘in connection with an
issue of public interest’ . . . if [it] concerns a topic of widespread public interest and
contributes in some manner to a public discussion of the topic”]; see also Seelig v. Infinity
Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808.) The AP therefore met its
burden of proving that Sparks’s complaint arose from constitutionally protected speech.

III.   Probability of Prevailing on the Merits
       Because the AP made a prima facie showing that the articles fell within the scope
of section 425.16, the burden shifted to Sparks to prove a reasonable probability of
prevailing on his claims. To demonstrate a probability of prevailing on the merits of
a challenged cause of action, “the plaintiff must ‘state[ ] and substantiate[ ] a legally
sufficient claim.’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th
at p. 741.) The plaintiff must make a prima facie showing of facts that would, if proven,
support a judgment in his or her favor. (Soukup v. Law Offices of Herbert Hafif, supra,
39 Cal.4th at p. 291.) For purposes of this inquiry, the court “‘“must accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only
to determine if it has defeated that submitted by the plaintiff as a matter of law.”’”
(Flatley v. Mauro, supra, 39 Cal.4th at p. 326.) Although “‘the court does not weigh the
credibility or comparative probative strength of competing evidence, it should grant the
motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim.’ [Citation.]” (Soukup v.
Law Offices of Herbert Hafif, supra, at p. 291.)
       Civil Code section 47 provides an absolute privilege for publications made “[b]y
a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B)


                                               7
legislative, or (C) other public official proceeding, or (D) of anything said in the course
thereof . . . .” (Civ. Code, § 47, subd. (d)(1); Sipple v. Foundation for Nat. Progress
(1999) 71 Cal.App.4th 226, 240.) “The privilege applies if the substance of the
publication or broadcast captures the gist or sting of the statements made in the official
proceedings.” (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1337.)
A privileged “‘news article need not track verbatim the underlying proceeding. Only if
the deviation is of such a “substantial character” that it “produce[s] a different effect” on
the reader will the privilege be suspended. [Citation.] News articles, in other words,
need only convey the substance of the proceedings on which they report, as measured by
their impact on the average reader.’ [Citation.]” (Carver v. Bonds (2005) 135
Cal.App.4th 328, 351-352; see also Colt v. Freedom Communications, Inc. (2003) 109
Cal.App.4th 1551, 1558 [“publication concerning legal proceedings is privileged as long
as the substance of the proceedings is described accurately”].) “In the context of judicial
proceedings, . . . reports which comprise a history of the proceeding come within the
privilege, as do statements made outside the courtroom and invoking no function of the
court. . . .” (Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at p. 1050.)
       In this case, each of the alleged defamatory statements in the AP’s articles was
absolutely privileged as a fair and true report of judicial proceedings. The substance of
both the July 31, 2012 and August 14, 2012 articles was that restraining orders had been
issued against Sparks following court hearings based on threats he had made against
Crow and Weinstein. The articles accurately described statements made at the hearings
and in the documents filed on behalf of Crow and Weinstein in support of their requests
for a restraining order. Indeed, the record reflects that all of the statements in the articles
that Sparks claims were defamatory were taken directly from declarations contained in
court filings and from testimony given at court hearings. While Sparks asserts that the
AP’s editorial decisions gave a “false tone” of the events surrounding the hearings and a
“false impression” of his mental or emotional state, he did not make any showing that the
AP’s articles misrepresented what was said during the judicial proceedings.



                                               8
       In support of his claims, Sparks challenges the AP’s statement in both the July 31,
2012 and August 14, 2012 articles that a union representative reported that Sparks had
threatened to shoot Crow and Weinstein. He also contends that the AP falsely published
that he acknowledged making such threat at the August 14, 2012 hearing. The statement
in the AP’s articles about the threat that Sparks communicated to the Screen Actors Guild
employee was based directly on a declaration submitted by the employee in support of
Crow’s request for a restraining order. In the declaration, the employee stated that,
during a telephone conversation with Sparks in which he complained about Crow and
Weinstein stealing from him and surreptitiously filming him, Sparks said to her at one
point, “I’ll just shoot them. Fuck it.” At the August 14, 2012 hearing, Sparks did not
deny that he had threatened to shoot Crow and Weinstein in his conversation with the
union employee. Instead, when questioned about the threat, Sparks testified that the
employee’s statement about what was said should have included the caveat that Crow and
Weinstein were “threatening [his] life.”4 Although the AP did not report Sparks’s



4       The transcript of the August 14, 2012 hearing reflects that, when asked whether
he told the union employee that he would shoot Crow and Weinstein, Sparks testified
as follows: “That was part of a sentence that she edited out. What the thing was, was
Sheryl Crow threatened – kept threatening me. Kept threatening – well, I’m – I’m
homeless. Driving by at 2:00 in the morning, ‘You are going to be killed, Phil.’ I’m
with SAG because I am a Screen Actors Guild member. And one of the constitutions
of being a union member, no one should be harassed or filmed, you know, without his or
her permission. I’ve been to Screen Actors Guild three times. After the first 2007 show,
I went to the Screen Actors Guild. I’m a union member. Sheryl Crow and Harvey
Weinstein filmed me illegally.”

        When asked to clarify how his statement was taken out of context, Sparks further
testified: “The whole sentence was: ‘These people are threatening me, threatening my
life.’ I have a reason to feel threatened. Because Ronni Chasen was helping me. She
was going to turn Sheryl Crow and Steve Weintraub in to the authorities. For one, for
embezzlement, and some other stuff. And rape. . . . But I said, ‘These people are
threatening my life. I’m asking for help. You know, I’m a union member. You are
supposed to help me. For one, they are filming me without my permission. Two, I’m
homeless in – not Hollywood – Santa Monica and Venice. They are driving by yelling
profanity; telling me I’m going to be killed; telling me I should have kept my mouth

                                             9
specific claim that Crow and Weinstein had threatened his life, it did relate that Sparks
had stated that he made his threat in frustration because he believed they had stolen from
him and continued to follow him. The AP’s articles thus accurately conveyed the
substance or gist of Sparks’s threat.
       Sparks also argues that the AP’s August 14, 2012 article misrepresented the
qualifications of the testifying psychiatrist, Dr. David Glaser, and the circumstances
of his meeting with Sparks. In particular, Sparks asserts that the AP should have
investigated whether Dr. Glaser had a valid medical license at the time of his testimony,
and should have reported that his interview with Sparks was a brief casual conversation,
held under false pretenses. However, the statements in the AP’s article concerning the
basis for Dr. Glaser’s opinion about Sparks came directly from his testimony at the
August 14, 2012 hearing. Dr. Glaser specifically testified that he was board certified in
forensic psychiatry and that he interviewed Sparks for about an hour on August 9, 2012
after approaching him along the Venice Beach Boardwalk. Sparks did not raise any
objections to Dr. Glaser’s qualifications at the August 14, 2012 hearing, nor did he offer
any evidence at that time regarding the status of the doctor’s medical license. While
Sparks did try to elicit testimony from Dr. Glaser that their meeting lasted only 10
minutes, Dr. Glaser maintained that he spoke with Sparks for almost an hour. The
article’s references to Dr. Glaser as a forensic psychiatrist who had recently interviewed
Sparks was a fair and true report of the doctor’s testimony.
       Sparks further claims that the AP made defamatory statements in its August 14,
2012 article when it reported that Dr. Glaser had diagnosed him as being “imminently
dangerous” and “unambiguously delusional.” The record reflects that these statements
in the AP’s article were based on direct quotes from Dr. Glaser’s testimony at the


shut.’ . . . And I have a reason to be feared for my life because the person that was
helping me, Sheryl Crow’s publicist, was murdered. She was close to me. So I have a
reason. And on that statement I said, ‘Listen, if they come near me and they try to hurt
me, yes, because you are not helping me, if anybody comes near me and tries to hurt me,
I will shoot them.’”


                                            10
August 14, 2012 hearing and were accurately represented by the AP as the doctor’s
proffered opinion about Sparks. Dr. Glaser specifically testified that Sparks had
“directed his psychosis at Ms. Crow,” and that his internet postings were “rampant with
data that supports that this man is imminently dangerous.” Dr. Glaser also testified that
Sparks “is unambiguously delusional, and his delusions and his delusional web has pulled
Ms. Crow and Mr. Weinstein into it.” While Sparks contests the underlying validity of
Dr. Glaser’s diagnosis and qualifications, he cannot dispute that the AP accurately
described what Dr. Glaser said about him at the hearing.
       Sparks nevertheless suggests that the AP’s article should have portrayed him in a
more favorable light by reporting his allegations that he was being “railroaded” by false
testimony from witnesses. However, the AP was not required to present Sparks’s version
of the facts in reporting on the results of the judicial proceedings or to independently
investigate whether the witnesses who testified against him were credible. (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 accurately represented the substance of the judicial
proceedings and the restraining orders issued against Sparks, they were protected by the
fair report privilege of Civil Code section 47, subdivision (d). The trial court accordingly
did not err in granting the AP’s special motion to strike.5




5      In light of our conclusion that Sparks’s claims were barred as a matter of law by
Civil Code section 47, subdivision (d), we need not consider the trial court’s alternative
grounds for granting the special motion to strike.


                                              11
IV.    Notice of the Special Motion to Strike
       Sparks also contends that reversal is required because the AP filed its special
motion to strike “illegally” by listing the incorrect case number on the notice of motion.
This claim lacks merit because Sparks opposed the AP’s motion on the merits and failed
to demonstrate that he was prejudiced by the alleged defect in the notice.
       “A party who appears at the hearing on a motion and contests the motion on the
merits without objecting to a defect or irregularity in the notice of motion ordinarily is
deemed to waive the defect or irregularity. . . . Courts have applied this rule where the
party failed to object at the hearing [citations], where the objection was deemed
inadequate [citations], and where the party may have objected but failed to show
prejudice resulting from the defective notice [citations]. Courts applying the waiver
rule generally have concluded that the party’s appearance at the hearing and opposition
on the merits showed that the notice ‘served its purpose,’ despite any defect [citations],
and that any defect in the notice did not prejudice the party’s preparation for the hearing
and opportunity to be heard. [Citations.]” (Arambula v. Union Carbide Corp. (2005) 128
Cal.App.4th 333, 342-343.) Consequently, “[i]n order to obtain a reversal based upon
such a procedural flaw, the appellant must demonstrate not only that the notice was
defective, but that he or she was prejudiced. [Citations.] ‘. . . Procedural defects which
do not affect the substantial rights of the parties do not constitute reversible error.
[Citation.]’” (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288.)
       The record reflects that the AP timely filed and served its special motion to strike
and that Sparks received the motion. Although the notice of motion originally listed the
incorrect case number, the AP corrected the error in a notice of errata that it filed and
served on Sparks at least eight days prior to the scheduled hearing. Sparks then filed an
opposition to the AP’s motion and appeared at the hearing. When Sparks objected that
the original notice was defective based on the incorrect case number, the trial court
agreed to continue the hearing for an additional month and offered Sparks an opportunity
to file a new opposition. Sparks advised the court, however, that the brief he had filed
was sufficient to constitute his opposition on the merits, and the court agreed to accept

                                              12
that brief as Sparks’s timely filed opposition. Sparks thereafter attended the continued
hearing where he argued the merits of the motion before the trial court. Under these
circumstances, Sparks cannot show that he suffered any prejudice as a result of the
caption error in the original notice of motion. Because the alleged defect was harmless to
Sparks, it does not require reversal of the judgment.


                                     DISPOSITION

       The judgment is affirmed. The AP shall recover its costs on appeal.




                                                 ZELON, J.


We concur:




       PERLUSS, P. J.



                   
       SEGAL, J.




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


                                            13
