Filed 2/1/16 Gordon & Holmes v. Love 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


GORDON & HOLMES et al.,                                              B256367

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                      Super. Ct. No. BC462438)
         v.

COURTNEY LOVE,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael M. Johnson, Judge. Affirmed.
         Williams Iagmin and Jon R. Williams for Plaintiffs and Appellants.
         Dongell Lawrence Finney, John A. Lawrence and Marc Gans for Defendant
and Respondent.
       Rhonda J. Holmes (Holmes) and Gordon & Holmes (collectively plaintiffs)
sued Courtney Love Cobain (Cobain) for defamation, alleging that Cobain
committed libel per se in a Twitter comment about Holmes, her former attorney.1
The trial court granted Cobain’s motion for nonsuit as to the claims asserted by
Gordon & Holmes and dismissed the claims in their entirety.2 Holmes’ libel per se
claim was tried to a jury, which returned a verdict for Cobain. The jury found that
although Cobain’s Twitter statement was false and tended to injure Holmes in her
profession, Cobain did not act with actual malice. Plaintiffs now appeal from the
judgment entered on the verdict, contending, in substance, that the evidence
compelled the jury to find that Cobain acted with actual malice. We disagree and
affirm.


               FACTUAL AND PROCEDURAL BACKGROUND
Trial Evidence
       Cobain is the widow of Kurt Cobain of the rock band Nirvana. After her
husband’s death, Cobain came to believe that various persons had defrauded her,
her daughter, and her husband’s estate of millions of dollars. In December 2008,
Cobain retained plaintiffs to investigate her claims and “go after” the perpetrators.




1
       The defamation suit also was based on an interview of Cobain by a Canadian
journalist, Alan Cross. Plaintiffs do not challenge the jury verdict in favor of Cobain as
to the Cross article. We therefore address only the Twitter statement.
2
       Gordon & Holmes purports to appeal from the judgment but has raised no issues
regarding the grant of nonsuit. It therefore has forfeited any claims on appeal. (See
Jones v. Jacobson (2011) 195 Cal.App.4th 1, 19, fn. 12 [“issues and arguments not
addressed in the briefs on appeal are deemed forfeited”].)

                                             2
      Holmes investigated Cobain’s claims from December 2008 through May
2009. She retained a forensic fraud economist and interviewed numerous people
Cobain believed had relevant information about the fraud.
      Holmes helped Cobain draft a press release that was published in the New
York Post on April 7, 2009. The article quoted Holmes as stating that she had
been able to “track down” $30 million, but that more was missing, and that “[w]e
will be filing civil cases . . . within the next 30 days.”
      Based on the press release, Cobain expected Holmes to file a complaint by
May 7, 2009. On April 24 and 29, 2009, Cobain had 80 boxes of documents
delivered to Holmes to help in preparing the complaint.
      By early May 2009, Holmes had not filed a complaint. She explained to
Cobain that her computer had been hacked. Holmes also told Cobain that Cobain’s
former counsel had threatened her, and that she had been accosted in a parking lot.
Holmes further said that $140,000 had been stolen from her bank account, that she
had been the victim of credit card fraud, and that her phone was tapped. Holmes
attributed these events to her April 2009 statement in the New York Post and the
fraud conspiracy in general.
      Unbeknownst to Cobain, on April 27, 2009, Holmes sent an unusual letter to
Cobain’s daughter Frances, in which she reiterated her claims about the fraud
conspiracy. The letter contained personal confidences and also stated that Holmes
represented Frances, her grandmother and her aunts, even though she did not.
Holmes wrote that Cobain and Frances were “the unfortunate victims of a very
large and very scary conspiracy,” and that she had “personally experienced the
reach and criminality of these thieves.”




                                            3
      According to Holmes, an attorney Cobain had hired in a different matter,
Keith Fink, criticized Holmes’ work to Cobain. Holmes testified that Cobain told
Holmes she preferred Fink to her and stopped returning Holmes’ phone calls.
      A meeting was scheduled for May 4, 2009 involving Cobain, Holmes, and
others. Holmes planned to attend by teleconference, but shortly before the
meeting, Holmes received an email from Cobain’s assistant, Marie Walsh, stating
that the meeting was canceled because Cobain was attending a different meeting.
Cobain’s 80 boxes were retrieved from Holmes that day and delivered to Fink.
Cobain testified that her assistants handled the matter, but she believed the boxes
were transferred because of an unrelated arbitration matter. She did not intend that
Fink replace Holmes.
      Holmes testified that sometime after the boxes were retrieved from her,
Walsh confirmed to Holmes that Cobain had fired her. According to Cobain, she
did not fire Holmes; Holmes was the one who terminated the relationship.
      On May 8, 2009, Holmes sent an email to Cobain in which she wrote, “I
DID NOT QUIT!” Holmes further wrote that she was “FIERCELY protective” of
Cobain and that she was concerned because Fink was “rude and condescending” to
Cobain, unethical, and “highly unprofessional.” Holmes accused Fink of having
told Cobain that Holmes quit.
      Cobain did not hear from Holmes again after the May 2009 email, and
Holmes never filed a complaint. Cobain thus began to think that Holmes had
“disappeared” and been “bought off.” Although in January 2009 she had had
similar thoughts and later learned she was mistaken, she did not believe she was
mistaken this time.
      Cobain testified that when she stopped hearing from Holmes, she “didn’t
want to think the worst, which is that someone had gotten to her, because she

                                          4
didn’t seem like that kind of person. . . . I just thought she’d vanished or
abandoned us.” She said that several people suggested to her that Holmes had
been “bought off” and that Holmes herself had used the phrase numerous times to
describe other lawyers. Cobain never saw a complaint or any legal document
prepared by Holmes. Holmes never sent a letter to Cobain confirming her
termination, even though there were statute of limitations issues in the case.
      By June 2010, Cobain was trying to determine if Holmes had “vanished.” In
what she thought was a private conversation with two other Twitter users, Carmela
Kelly (“fairnewsspears”) and someone named Ed (“noozjunkie”), she was asked if
she thought her lawyer was bought off. Cobain replied with the Twitter comment
at issue: “I was fucking devastated when Rhonda J. Holmes, Esquire, of San
Diego was bought off @FairNewsSpears perhaps you can get a quote.” She
removed the tweet after five to seven minutes.
      Cobain thought the comment was posted as part of a “long dialogue about
the fraud stuff” with the two Twitter users, whom she described as “wannabe
reporters.” She did not intend anyone but those two people to see the comment.
Cobain did not think Holmes would see the Twitter comment but did not care if
she did. Cobain did not think about the potential harm to Holmes’ reputation from
the comment because she believed the comment was true when she wrote it.
      Explaining the comment, Cobain testified that she did not intend to claim
“someone walked up and handed [Holmes] a bunch of cash.” Similarly, in
response to a request for admission during discovery that was admitted into
evidence, Holmes stated she “has never contended and does not contend that
HOLMES was ever bribed by any PERSON to cease representing [her] in any
litigation.” Cobain testified that instead, she meant that Holmes had been “gotten
to” or “compromised” in some manner. Cobain’s belief was based on the incidents

                                           5
Holmes had reported to her of being threatened, having her computer hacked and
her phone tapped, and money stolen from her bank account. Because of these
incidents, when Holmes did not file a complaint or return her phone calls, Cobain
“freaked out” and thought “maybe . . . someone had hurt her.” By 2010, Cobain
“firmly believed [Holmes had] been gotten to somehow.”


Verdict
      On Holmes’ claim for libel per se, the jury returned a special verdict in
which it found that the Twitter statement was false and had a natural tendency to
injure Holmes’ profession, but that Holmes did not prove by clear and convincing
evidence that Cobain knew the statement was false or had serious doubts about the
truth of the statement. The court entered judgment in favor of Cobain, and later
denied Holmes’ motion for a new trial.


                                  DISCUSSION
      Holmes contends that given Cobain’s admission that she did not know
whether Holmes had been bribed, and the Oxford Dictionary definition of the
phrase “bought off” on which the jury was instructed, the jury was compelled to
find that Cobain acted with actual malice. Therefore, Holmes contends that we
must set aside the jury’s contrary finding that although the Twitter statement was
false and injurious to Holmes, Cobain did not know the statement was false or have
serious doubts about its truth. At oral argument, Holmes further argued that if the
evidence showed that Cobain knew the common meaning of the phrase “bought
off” was “bribed,” actual malice is established as a matter of law. We are not
persuaded.



                                         6
      At the outset, we note that Holmes does not dispute that she is a public
figure and therefore was required to prove actual malice to prevail on her libel per
se claim under New York Times Co. v. Sullivan (1964) 376 U.S. 254 (New York
Times). (See Jackson v. Paramount Pictures Corp. (1998) 68 Cal.App.4th 10, 27.)
“[L]iability under New York Times requires clear and convincing proof of a
knowing falsehood or of reckless disregard for the truth. [Citation.] Recovery by
public officials in defamation actions is constitutionally barred unless evidence is
produced ‘of either deliberate falsification or reckless publication “despite the
publisher’s awareness of probable falsity” . . . .’ [Citation.] [¶] Reckless
disregard for the truth ‘is not measured by whether a reasonably prudent man
would have published, or would have investigated before publishing. There must
be sufficient evidence to permit the conclusion that the defendant in fact
entertained serious doubts as to the truth of his publication.’ [Citation.] Lack of
due care is not the measure of liability, nor is gross or even extreme negligence.
[Citation.]” (McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 860 (McCoy).) “The
crucial focus of actual malice under New York Times is the defendant’s attitude, or
state of mind, toward the allegedly libelous material published. [Citations.]” (Id.
at p. 847.)
      In reviewing the jury’s finding that Holmes failed to prove actual malice,
we employ the substantial evidence test, under which “‘“the power of [the]
appellate court begins and ends with the determination as to whether there is any
substantial evidence contradicted or uncontradicted which will support the
[verdict].” [Citations.]’ [Citation.] We must ‘view the evidence in the light most
favorable to the prevailing party, giving it the benefit of every reasonable inference




                                          7
and resolving all conflicts in its favor . . . .’” (Wilson v. County of Orange (2009)
169 Cal.App.4th 1185, 1188 (Wilson).)3
       Viewing the evidence in the light most favorable to Cobain, we conclude
that there is substantial evidence to support the jury’s finding that although
Cobain’s statement was false and injurious, Holmes failed to establish by clear and
convincing evidence that Cobain knew the statement was false or had serious
doubts about the truth of the statement.
       The court explained to the jury that the dictionary definition of the term
“buy-off” was “to procure the loyalty and support of someone by bribery.”
However, the court further explained that the jury was “to determine the meaning
of all the words and statements in this case from all of the evidence that you hear in
the trial; but a dictionary definition is . . . another piece of evidence for [the jury] to



3
       The instant case must be distinguished from one in which an appellate court
reviews a jury’s finding that actual malice exists. In that situation, “the reviewing court
‘must exercise independent judgment and determine whether the record establishes actual
malice with convincing clarity.’ [Citations.] This means that although ‘credibility
determinations are reviewed under the clearly-erroneous standard because the trier of fact
has had the “opportunity to observe the demeanor of the witnesses,”’ the reviewing court
must ‘consider the factual record in full’ and ‘must “‘examine for [itself] the statements
in issue and the circumstances under which they were made to see . . . whether they are of
a character which the principles of the First Amendment . . . protect.’”’ [Citations.]”
(Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 275.)
       This independent standard of review applies when there has been a finding that
actual malice exists “in order to make sure that ‘the judgment does not constitute a
forbidden intrusion on the field of free expression.’ [Citations.]” (Bose Corp. v.
Consumers Union (1984) 466 U.S. 485, 499; see id. at p. 511 [independent review
required “in order to preserve the precious liberties established and ordained by the
Constitution.”].) However, in a case such as this, in which the jury’s verdict did not
intrude on free expression, there is no concern that the judgment would “strip the
utterance of First Amendment protection.” (Ibid.) Thus, the independent standard of
review does not apply.

                                            8
consider.”4 Thus, contrary to Holmes’ argument, the trial court did not “direct[]”
the jury that the dictionary definition was the only interpretation of “bought off.”
       The other evidence presented to the jury regarding the meaning of “bought
off” was Cobain’s testimony that she did not “mean someone walked up and
handed you a bunch of cash.” She did not think that was “how it’s done.” Instead,
she meant that Holmes had been “gotten to,” “threat[ened] by more powerful
counsel,” or “compromised in some fashion,” thus causing her to “vanish[]” or to
“abandon[] [Cobain].”
       Cobain’s response to Holmes’ Request for Admissions No. 10 was admitted
into evidence. The request asked Cobain to admit that she had no knowledge of
Holmes having been bribed to stop representing her. Cobain responded, “Not
applicable. Defendant has never contended and does not contend that HOLMES
was ever bribed by any PERSON to cease representing Defendant in any
litigation.”
       The dictionary definition of “buy-off” and Cobain’s lack of knowledge
whether Holmes had been bribed to stop representing her do not constitute “clear
and convincing proof of a knowing falsehood or of reckless disregard for the
truth.” (McCoy, supra, 42 Cal.3d at p. 860.) In determining whether a statement is




4
        The jury subsequently was instructed that in order to establish her defamation
claim, Holmes needed to prove that it was more likely true than not that (1) Cobain made
the statement to persons other than Holmes; (2) these people reasonably understood the
statement was about Holmes; and (3) these people reasonably understood the statement to
have a natural tendency to injure Holmes’ profession, trade or business. The jury further
was instructed that Holmes needed to prove by clear and convincing evidence that the
statement was false, and Cobain knew the statement was false or had serious doubts
about the truth of the statement. The jury was not instructed on the definition of the
phrase “bought off.”

                                           9
libelous per se, “the context of the communication must be examined. [Citations.]”
(Krinsky v. Doe 6 (2008) 159 Cal.App.4th 1154, 1174.)
      Here, Holmes never filed the complaint despite her April 2009 statement in
the New York Post that she would do so within 30 days. Holmes told Cobain that
her computer had been hacked, her phone had been tapped, money was stolen from
her bank account, Cobain’s former counsel had threatened her, and that she had
been accosted in a parking lot. After the May 2009 email in which Holmes wrote,
“I DID NOT QUIT,” Cobain never heard from Holmes again. Holmes never sent a
letter to Cobain confirming that she was no longer representing her. Thus,
although Cobain may not have known for certain whether “someone walked up
and handed [Holmes] a bunch of cash,” by 2010, Cobain firmly believed Holmes
had been compromised or “gotten to” in some manner. Under these circumstances
it was not reckless for Cobain to believe that Holmes had been induced to stop
representing her. Given the context of the statement, substantial evidence supports
the jury’s finding that Holmes did not prove by clear and convincing evidence that
Cobain knew her statement was false or had serious doubts as to its truth.
      Holmes’ contention that actual malice is satisfied as a matter of law based on
the dictionary definition of “buy-off” and Cobain’s admission that she did not
know whether Holmes had been bribed is similar to the argument rejected by our
supreme court in Good Government Group of Seal Beach, Inc. v. Superior Court
(1978) 22 Cal.3d 672 (Good Government).) There, the court held that the
defendants in a libel action were not entitled to summary judgment because there
was a triable issue of fact as to whether their statement that the plaintiff, a city
councilman, had “‘extorted by blackmail’ $100,000 from a development company”
was libelous. (Id. at p. 677.) The defendants argued that they did not intend to
state that the plaintiff in fact committed extortion or blackmail but that the

                                           10
statement was merely “sharp criticism of his conduct, using figurative language.”
(Id. at p. 679.) The plaintiff argued that actual malice was satisfied because the
defendants conceded they were aware prior to publication that the plaintiff had
never committed extortion or blackmail. The issues therefore were whether the
statement constituted a false statement of fact or merely an opinion, and whether a
sufficient showing of malice was made to defeat summary judgment. (Id. at p.
680.)
        The court rejected the plaintiff’s “simplistic” argument that malice was
established by the defendants’ concession that they were aware the plaintiff had
not committed extortion or blackmail. (Good Government, supra, 22 Cal.3d at p.
683.) The court explained that, if that were the standard, “a defendant who makes
a statement which is ambiguous in the sense that it can reasonably be viewed as
either fact or opinion, but who neither intends the statement to bear a factual
meaning nor believes that it will be understood by the reader in that fashion, will
be guilty of libel if a jury later determines that the article was understood in its
factual, defamatory sense. [¶] Such a holding would render a defendant liable for
a defamatory statement negligently made and would create precisely the chilling
effect on speech which the New York Times rule was designed to avoid.” (Id. at
pp. 683-684.) The court thus held that “in order to find the requisite malice from
the publication of ambiguous words which could constitute either fact or opinion,
the jury must find not only that the words were reasonably understood in their
defamatory, factual sense, but also that the defendant either deliberately cast his
statements in an equivocal fashion in the hope of insinuating a defamatory import
to the reader, or that he knew or acted in reckless disregard of whether his words
would be interpreted by the average reader as defamatory statements of fact.” (Id.
at p. 684.)

                                           11
      Here, the jury found that Cobain’s statement was a fact, not an opinion, and
that it was injurious to Holmes. The jury therefore found that calling Holmes
“bought off” would be interpreted by the average reader as a defamatory statement
of fact. However, there was no jury finding as to the meaning of “bought off.”
Therefore, it is not clear whether the jury found that the phrase specifically meant
“bribed,” or whether it included the broader meaning suggested by Cobain that
Holmes was “gotten to” or compromised in some manner other than by being
“handed . . . a bunch of cash.”
      The term “bought off” is not as specific as “bribe,” and, as discussed above,
the evidence regarding the meaning of “bought off” presented to the jury included
not only the dictionary definition but also Cobain’s testimony. Cobain testified
that the statement was in response to the question whether she believed her
attorney had been bought off. Given the context – asked if she thought her lawyer
was bought off – and the fact that the two people she thought she was writing to
knew the circumstances – an objective reader would not necessarily understand
that Cobain intended to say that Holmes had been bribed, but rather that Holmes
had abandoned Cobain for an unknown reason.
      Even were we to assume that the jury was required to find that the only
possible interpretation of “bought off” was “to procure the loyalty and support of
someone by bribery,” Cobain’s testimony supports the finding that she in fact
believed that Holmes had been pressured to stop representing her. Holmes
presented no evidence to establish that Cobain “‘in fact entertained serious doubts
as to the truth of’” her statement. (McCoy, supra, 42 Cal.3d at p. 860.)
      Holmes contends that Montandon v. Triangle Publications, Inc. (1975) 45
Cal.App.3d 938 (Montandon) stands for the proposition that if a defendant knows
the objective meaning of her statement is false, actual malice is established despite

                                         12
the defendant’s subjective understanding of the statement. However, Montandon
does not support that position. In Montandon, the defendant magazine issued a
press release advertising a television show on which the plaintiff, the author of a
book about being a “party girl,” was to appear along with a prostitute, who was
described as a “call girl.” The magazine edited the press release several times and
ultimately released a version omitting crucial information, such that it was unclear
that the plaintiff was appearing with a prostitute and that the terms “party girl” and
“call girl” referred to two different people. (See id. at pp. 941-942.) The jury
found that the statement was libelous and made with actual malice, and the
appellate court affirmed. (Id. at pp. 944, 953.)
      Montandon is inapposite. First, contrary to Holmes’ characterization of
Montandon, the defendant did not rely on a subjective interpretation of the term
“call girl.” Instead, the defendant argued that the statement did not clearly refer to
the plaintiff as a call girl. (See Montandon, supra, 45 Cal.App.3d at p. 944.)
Second, there was substantial evidence in Montandon that the defendant not only
knew the plaintiff was not a call girl but published the statement in reckless
disregard of whether it was true. The defendant’s employees altered the original
statement by removing the reference to the prostitute who was appearing on the
show with the plaintiff and thus were forced to acknowledge that the statement as
published “conveyed the impression” that the term “call girl” referred to the
plaintiff. (Montandon, supra, 45 Cal.App.3d at p. 944.) Because the evidence
showed that the defendant intentionally “decided not to tell the public” about the
prostitute who was appearing on the show with the plaintiff, “it was reasonable for
the jury to find . . . that the publication of this statement was a reckless disregard of
the truth or falsity of the statement.” (Id. at pp. 944-945.) There is no such



                                           13
evidence here of intentional or reckless disregard of the truth. Montandon thus
does not support Holmes’ position.
      We must view the evidence in the light most favorable to Cobain and give
her the benefit of every reasonable inference. (Wilson, supra, 169 Cal.App.4th at
p. 1188.) Doing so, it would be reasonable for the jury to conclude that by saying
that Holmes was bought off, Cobain meant that Holmes had been induced in some
manner to stop representing her – whether by consideration or by threat.
Moreover, given Cobain’s repeated testimony that she believed Holmes had been
“compromised” or “gotten to,” substantial evidence supports the jury’s finding that
Holmes did not prove by clear and convincing evidence that Cobain knew the
statement was false or had serious doubts about the truth of the statement when she
made it.




                                        14
                                     DISPOSITION
              The judgment is affirmed.5 Cobain is entitled to costs on appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                 WILLHITE, Acting P. J.




              We concur:




              MANELLA, J.




              COLLINS, J.


5
       Holmes purports to appeal from the court’s denial of her motion for new trial.
Holmes does not support her contention with argument and therefore has forfeited her
challenge to the court’s denial of her motion. (See Hearn v. Howard (2009) 177
Cal.App.4th 1193, 1207 [appellant waived challenge to denial of new trial motion and
motion to set aside the judgment by failing to make any cognizable claim of error on
appeal].) Even if not forfeited, Holmes’ new trial motion was based on the same
arguments raised on appeal. In light of our conclusion that the judgment should be
affirmed, the trial court did not abuse its discretion in denying the motion. (See David v.
Hernandez (2014) 226 Cal.App.4th 578, 588-589 [“‘[A] motion for new trial predicated
on the ground[] of the insufficiency of the evidence . . . is addressed to the sound
discretion of the trial judge; his action in refusing a new trial will not be disturbed on
appeal unless it is affirmatively shown that he abused his discretion. [Citation.]’
[Citation.]”].)
                                                15
