Filed 4/30/13 Forest v. Lintott CA1/5

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
                                       FIRST APPELLATE DISTRICT
                                                  DIVISION FIVE




ROBERT FOREST,

         Plaintiff and Respondent,                                          A134762

         v.                                                                 (Mendocino County
                                                                            Super. Ct. No.
MEREDITH LINTOTT,                                                           SCUKCVP01158996)

      Defendant and Appellant.
____________________________________/

         This case arises out of statements made by defendant and former Mendocino
County District Attorney Meredith Lintott during her 2010 reelection campaign. During
a debate and in a radio advertisement, Lintott made statements about donors to challenger
David Eyster‟s election campaign. After Eyster won the election, one of Eyster‟s donors,
plaintiff Robert Forest, sued Lintott for defamation. The trial court denied Lintott‟s
motion to strike (Code Civ. Proc., § 425.16),1 concluding Forest established a probability
of prevailing on the merits of his defamation claim as to the radio advertisement.



1      Unless otherwise noted, all further statutory references are to the Code of Civil
Procedure. Section 425.16 provides a “procedural remedy to dispose” of strategic
lawsuits against public participation — SLAPP lawsuits — that seek “„to chill or punish a
party‟s exercise of constitutional rights to free speech and to petition the government for
redress of grievances.‟” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th

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       Lintott appeals. She contends the court erred by denying the motion to strike
because Forest could not show a probability of prevailing on the defamation claim.
Specifically, she claims Forest could not prevail because the radio advertisement did not
identify him and because the debate statements were true. We affirm. We conclude
Forest established a probability of prevailing on the merits of his defamation claim
regarding the radio advertisement because a reasonable listener could have understood
the advertisement as communicating the false statement that Forest had a pending felony
case against him.2
                     FACTUAL AND PROCEDURAL BACKGROUND
       In December 2006, the People charged Forest with felony assault with a firearm
(Pen. Code, § 245, subd. (a)(2)). In January 2008, Lintott — then Mendocino County


1467, 1477, quoting Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) “Section
425.16 is known as the anti-SLAPP statute.” (Chabak v. Monroy (2007) 154 Cal.App.4th
1502, 1509.) Section 425.16, subdivision (b)(1), provides: “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 Constitution or the 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.”

2       We grant Lintott‟s request for judicial notice of this court‟s unpublished opinion in
People v. Forest (Aug. 3, 2010, A124144) [nonpub. opn.]. (Evid. Code, §§ 452, subd.
(a), 459.) We do not use the opinion to establish truth of facts in the opinion. (See
Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 418-419.) We also grant
Lintott‟s request for judicial notice of the superior court‟s file in People v. Forest, case
No. MCTM-CRCR-06-74772-02 (People v. Forest). (Evid. Code, §§ 452, subd. (d), 459,
subd. (a).)
        Forest has moved to strike portions of Lintott‟s reply brief because she claims it
raises issues, makes arguments, and lodges evidentiary objections “for the first time . . .
none of which were made in the trial court.” (Motion at p. 1, ¶ 1.) We deny the motion.
We will ignore Lintott‟s reply brief to the extent it raises arguments for the first time on
appeal or in her reply brief. (Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1187-
1188 (Wallace) [rejecting argument not raised in the trial court]; Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 894, fn. 10
[declining to consider arguments raised for the first time in a reply brief].) See footnote
6, infra.

                                             2
District Attorney — appeared in person and moved to dismiss the complaint on the
ground of insufficient evidence. The trial court granted the motion. A few months later,
Forest petitioned for a finding of factual innocence pursuant to Penal Code section 851.8.
The court denied the petition, concluding the People presented substantial evidence that
reasonable cause existed to believe Forest assaulted the victim with a firearm and did not
act in self-defense. A division of this court affirmed. (People v. Forest (Aug. 3, 2010,
A124144) [nonpub. opn.].)
       On October 15, 2010, Forest donated $10,000 to Eyster‟s campaign to defeat then
District Attorney Lintott in the November 2010 election.
The Debate
       On October 21, 2010, Lintott and Forest participated in a debate sponsored by the
Mendocino County League of Women Voters. During the debate, the candidates
discussed their campaign donors. Eyster identified two donors but did not mention
Robert Forest. In response, Lintott said: “There‟s a very important issue that I want to
talk to you about, especially being District Attorney. And it does have to do with
donations, amounts, and where they come from. That is why we have these public
documents. [¶] Mr. Eyster‟s second largest donor is Robert Forest, in the amount of
$10,000. Mr. Forest was prosecuted — actually the case [was] filed before I came into
office. It was regarding, on Franklin Street, a pulling of a gun and threatening a homeless
person. It‟s worked its way through the courts. He‟s tried to be found factually innocent
so that he can get his concealed weapons permit. Judge Henderson said, „No, you‟re not
factually innocent.‟ This man is still trying to get a concealed weapons permit and our
office has stood in his way. He gives Mr. Eyster $10,000.”
       Lintott continued, “Next we need to go to Jeffrey Bord‟s father. Jeffrey Bord has
two felony open cases in our office currently being prosecuted. His father gave $2,000 to
Mr. Eyster, on an open case. [¶] Yet another open case with a co-op over here, Gabe
Martin, $750. [¶] You need to look at the source. And I submit to you that you should
not have a D.A. that accepts money when their power is at stake on open cases.”



                                             3
       The debate was broadcast on Mendocino Coast Television the following day and a
video of the debate was posted on the Mendocino County League of Women Voters‟
website.
The Radio Advertisement
       Several Mendocino County radio stations broadcast the following advertisement
for Lintott in late October and early November 2010:
       “Beware of D.A. candidate Eyster; he is not what he appears. Eyster paid to have
his name listed on two political mailers that pretend to be from the democratic party.
Eyster isn‟t a democrat and the official Democratic endorsement went to his opponent,
District Attorney Lintott.
       “Eyster has also failed to tell you about the cash gifts to his campaign from men
with pending felony cases; one in the amount of $2,000, another in the amount of $750.
The most alarming, $10,000, comes from a man who assaulted an unarmed man with a
loaded gun. Seeking a concealed weapons permit, he petitioned the court and was
opposed by Lintott. The courts agreed with Lintott. Eyster has pocketed a $10,000
donation. Are concealed weapons permits now on sale in Mendocino County?
       “District Attorney Lintott is the real Democrat in the race, unbought and unbossed.
Meredith refuses to take money from those seeking favors and special treatment. A vote
for Lintott is a vote for justice we can trust.”
The Defamation Lawsuit
       Eyster won the election. In 2011, Forest sued Lintott for defamation and for
intentional and negligent infliction of emotional distress. In his two-part defamation
claim, Forest alleged Lintott falsely accused him in the radio advertisement of: (1) having
felony charges pending against him; (2) assaulting a man with a loaded gun; and (3) and
contributing money to the Eyster campaign “as a bribe to obtain a concealed weapons
permit.” Forest also alleged Lintott made similar “slanderous statements” about him at
the debate by claiming he “pulled a gun and threatened a homeless person[,] . . .
committed the crime of assaulting another man with a loaded firearm” and “brib[ed]
and/or attempt[ed] to bribe a public official.”


                                               4
The Court’s Denial of Lintott’s Special Motion to Strike
       Lintott moved to strike the complaint pursuant to section 425.16. She contended
the conduct alleged in the complaint was subject to the anti-SLAPP statute and that
Forest could not establish a probability of prevailing on the merits.
       In opposition, Forest argued Lintott did not establish her statements were protected
within the meaning of section 425.16, subdivision (e). Forest also claimed he
demonstrated a probability of prevailing on his defamation claim because Lintott‟s
statements were false and made with actual malice. As Forest explained, he: “(1) had no
criminal charges pending; (2) [ ] had not committed a criminal offense by assaulting an
unarmed man with a firearm; [and] (3) [ ] had merely contributed funds to [Eyster‟s]
election campaign — he did not bribe or attempt to bribe anyone. . . .” (Fns. omitted.) In
support of his opposition, Forest submitted an audio recording and transcript of the radio
advertisement, a video and transcript of the debate, and the candidates‟ campaign finance
statements. He also submitted a request for judicial notice of the criminal complaint and
information in People v. Forest and the trial court‟s order dismissing the case.
       Forest also submitted a declaration averring Lintott defamed him in the radio
advertisement and during the debate by stating he: “(a) [ ] had felony criminal charges
pending . . . at the time of the radio broadcast; (b) [ ] had committed the crime of
assaulting an unarmed man with a loaded firearm; and (c) [ ] had bribed or attempted to
bribe . . . Eyster into issuing [him] a concealed weapons permit by donating $10,000 to
his election campaign.” Forest stated, “I am informed and believe that . . . Lintott was of
the opinion I had not committed any criminal offense; and, that I had acted in lawful self-
defense. . . . [¶] I believe . . . Lintott publicized slanderous statements about me as
retribution for my having made the contribution to Mr. Eyster‟s campaign. . . . [¶] Lintott
knew that the statements that she had made about me were false and/or she acted with
reckless disregard as to whether the statements were true.” Forest averred he “personally
heard [the] radio advertisement broadcast on different radio stations” in late October
2010 and early November 2010 and that friends and acquaintances called him and told



                                               5
him what Lintott “was saying about [him].”3 Finally, Forest described the “severe mental
and emotional distress” he suffered “as a result of what . . . Lintott, publicly stated about
[him].”
       In reply, Lintott argued the statements were protected speech under section 425.16
and Forest did not demonstrate a probability of prevailing because the radio
advertisement did not identify Forest, and because the debate statements were true.
Lintott urged the court to disregard Forest‟s declaration where he opined, “on
„information and belief[,]‟” about her state of mind when she made the statements.
Additionally, Lintott submitted a request for judicial notice of the superior court file in
People v. Forest pursuant to Evidence Code section 452, subdivision (d).
       Forest moved to continue the hearing on the motion to strike and requested leave
to conduct discovery. He opposed the request for judicial notice, claiming it was
untimely and unaccompanied by “a copy of the material that she is requesting the court
take judicial notice.” He also claimed Lintott raised new arguments for the first time in
her reply papers. Lintott later submitted an amended request for judicial notice attaching
the court‟s file in People v. Forest.
       At the hearing on the motion, the court granted Lintott‟s amended request for
judicial notice of the court‟s file in People v. Forest and noted it would consider the
transcripts of the debate and radio advertisement. In overruling Forest‟s objections to the
request for judicial notice, the court explained, “because of the nature of this proceeding
and because . . . I need to determine if there‟s a probability of prevailing on the merits, I
think I need that information that‟s in the request for judicial notice. . . .” The court also
denied Forest‟s motion to continue the hearing to conduct discovery.
       After the hearing, the court issued a written order denying the motion to strike.4
The court determined Forest did not establish a probability of prevailing on the


3      In a declaration, Forest‟s attorney averred he “personally heard [the] radio
advertisement broadcast numerous times on several different radio stations” in late
October and early November 2010; he did not aver he understood the advertisement to be
about Forest.

                                               6
defamation claim pertaining to the debate statements because what Lintott said at the
debate “was substantially true.” The court explained the superior court file in People v.
Forest “does show that Forest was prosecuted for a case which factually involved pulling
a gun on a homeless person. . . . [T]he file also shows that Forest made a motion to have a
finding of factual innocence which was opposed by the DA and denied by Judge
Henderson. That denial was upheld on appeal. Lintott‟s statements at the debate closely
reflect the factual recita[tions] in Judge Henderson‟s 2008 Order Denying Petition for
Finding of Factual Innocence and the (unpublished) opinion of . . . the First Appellate
Division denying Forest‟s appeal of Henderson‟s decision.”
       The court reached a different conclusion regarding the radio advertisement. It
explained, “the implication of [the] advertisement is that the person who gave Eyster‟s
campaign $10,000 has a felony complaint pending against him; that the same person
committed the crime of assaulting an unarmed man with a loaded gun; and that the
$10,000 contribution was an attempt to influence Eyster to issue a concealed weapons
permit.” The court concluded, “[f]rom the debate and other public information such as
Eyster‟s campaign disclosures people other than Forest could reasonably understand that
the ad referred to Forest.” The court continued, “[s]etting aside the fact that the DA does
not issue such permits and that Forest wasn‟t specifically named in the ad, [Forest‟s]
showing is sufficient to meet the minimal standard applicable to the second prong of the
SLAPP test. This is by no means a determination that Forest will prevail at trial. It is
worth noting that the case law seems to permit candidates to say almost anything about


4       Forest served and filed a notice of entry of order on February 6, 2012, a few days
later. On February 29, 2012, Lintott submitted a proposed order stating the motion to
strike had been granted as to the debate statements but denied as to radio advertisement.
Lintott did not show the order to opposing counsel before presenting it to the court.
Lintott filed a notice of appeal on February 27, 2012 and the court signed Lintott‟s
proposed order the next day. On April 3, 2012 and at Forest‟s request, the court struck
the order prepared by Lintott and entered a new order denying the motion to strike in its
entirety. We exercise our discretion to address the merits of Lintott‟s premature appeal,
particularly because Forest “does not argue for dismissal of the appeal, and the issues are
fully briefed.” (Zipperer v. County of Santa Clara (2005) 133 Cal.App.4th 1013, 1019.)

                                             7
each other, but Forest was not a candidate. The statements concerning Forest were
directed at . . . Eyster, but nonetheless implied that Forest engaged in reprehensible
conduct. . . . Allowing this action to proceed seems inconsistent with the profound
national commitment to the principle that debate on public issues should be uninhibited,
robust and wide open. Forest has, however, at least with respect to the political ad,
demonstrated the minimal showing necessary to defeat the special motion to strike.”
Citing Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 100 [(Mann)]
and Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 906, the court determined a plaintiff
“need only show a probability on some part of his claim . . . The judge need not parse out
the individual theories or parts of theories that have merit. Once the plaintiff has shown a
probability of prevailing on a cause of action under any theory the motion to strike must
be denied.”
                                      DISCUSSION
       Resolving the merits of a special motion to strike requires “a two-part analysis,
concentrating initially on whether the challenged cause of action arises from protected
activity within the meaning of the statute and, if it does, proceeding secondly to whether
the plaintiff can establish a probability of prevailing on the merits.” (Overstock.com, Inc.
v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699 (Overstock); Governor Gray
Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456 (American
Taxpayers Alliance).) Because Forest concedes Lintott made a threshold showing the
complaint arose from protected activity, we consider only whether Forest met his burden
of demonstrating a probability of prevailing on his defamation claim. (Overstock, supra,
151 Cal.App.4th at p. 699.)
       To establish a probability of prevailing, the plaintiff “must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.” [Citations].‟” (American Taxpayers Alliance, supra, 102 Cal.App.4th at p.
460.) The process used to make this determination “is similar to the standard used in
determining motions for nonsuit, directed verdict, or summary judgment. [Citations.]


                                             8
[Citation.] To make our determination, we consider “the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is based.”
[Citation.] The motion to strike should be granted if, as a matter of law, “the properly
pleaded facts do not support a claim for relief. [Citation.]” [Citation.]”” (Ibid., quoting
Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 809 (Seelig).) We
review the court‟s ruling on the motion to strike de novo. (Mann, supra, 120 Cal.App.4th
at p. 103.)
       Lintott contends Forest cannot show a probability of prevailing on his claim for
defamation arising out of the radio advertisement because the advertisement did not
identify him. “In defamation actions the First Amendment . . . requires that the statement
on which the claim is based must specifically refer to, or be „of and concerning,‟ the
plaintiff in some way.” (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042
(Blatty).) “The „of and concerning‟ or specific reference requirement limits the right of
action for injurious falsehood, granting it to those who are the direct object of criticism
and denying it to those who merely complain of nonspecific statements that they believe
cause them some hurt.” (Id. at p. 1044.)
       “To be referred to specifically, . . . the plaintiff need not be mentioned by name,
but may be identified by clear implication.” (Blatty, supra, 42 Cal.3d at p. 1044, fn. 1;
Seelig, supra, 97 Cal.App.4th at p. 809 [“„[s]tatements . . . cannot form the basis of a
defamation action if they cannot “„reasonably [be] interpreted as stating actual facts‟
about an individual”‟”]; Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1404
(Ferlauto) [same]; see also Barger v. Playboy Enterprises, Inc. (N.D. Cal. 1983) 564 F.
Supp. 1151, 1153 [statement must be “reasonably susceptible of special application to a
given individual”].) “Under California law, „[t]here is no requirement that the person
defamed be mentioned by name. . . . It is sufficient if from the evidence the jury can infer
that the defamatory statement applies to the plaintiff . . . [or] if the publication points to
the plaintiff by description or circumstance tending to identify him.‟” (Church of
Scientology of California v. Flynn (9th Cir. 1984) 744 F.2d 694, 697, quoting DiGiorgio
Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 569-570 (DiGiorgio).)


                                               9
       The radio advertisement does not specifically refer to Forest. As a result, the
question before us is whether it identifies Forest by “clear implication.” (Blatty, supra,
42 Cal.3d at p. 1044, fn. 1.) The answer is yes. As we discuss below, a reasonable
listener could have understood the radio advertisement as communicating the false
statement that Forest had a “pending felony case.”5
       Lintott claims “[t]he only person who . . . identified [ ] Forest in connection with
the advertisement is [ ] Forest himself, who publicly proclaimed his identity as the person
referred to in the advertisement by filing this lawsuit.” She is wrong. In his declaration
in opposition to the motion to strike, Forest averred he “personally heard this radio
advertisement broadcast on different radio stations” and that his friends and
acquaintances called him and told him what Lintott “was saying about [him].” This
creates an inference that those who heard the radio advertisement understood it to be
about Forest because the advertisement mentioned circumstances — i.e., a description of
People v. Forest — “„tending to identify [him].‟” (Church of Scientology, supra, 744
F.2d at p. 697.)6 We conclude Forest presented evidence sufficient to show the radio
advertisement was “of and concerning” him. (Blatty, supra, 42 Cal.3d at p. 1044;
DiGiorgio, supra, 215 Cal.App.2d at pp. 569-570 [“It is sufficient if from the evidence
the jury can infer that the defamatory statement applies to the plaintiff;” concluding “the
trier of fact could determine the film” shown to agricultural workers “was depicting” the
corporation and its founder “[e]ven though the corporation was not named” in the film].)



5     We do not opine on the veracity of the other statements in the advertisement, i.e.,
whether Forest assaulted an unarmed man and whether he tried to influence Eyster, nor
do we opine on whether there may be defenses to a defamation claim arising out of those
statements.

6      In her reply brief, Lintott attacks various aspects of Forest‟s declaration as “self-
serving” and lacking in “evidentiary value.” These attacks are unavailing for two
reasons. First, Lintott does not challenge the portion of Forest‟s declaration describing
how his friends and acquaintances were able to identify him as the subject of the radio
advertisement. Second, Lintott concedes she did not object to the declaration on these
grounds in the trial court and did not raise this argument in her opening brief.

                                              10
       Though not cited by either party, Dewing v. Blodgett (1932) 124 Cal.App. 100
(Blodgett) is instructive. There, a series of newspaper articles contained defamatory
remarks about the “court reporter” of Santa Barbara County without naming the court
reporter. The court reporter sued for defamation. (Id. at p. 102.) The trial court
overruled the defendant‟s demurrer and the appellate court affirmed. The Blodgett court
held the complaint stated a claim for defamation because the court reporter alleged,
among other things, that he was the official court reporter for that county, “known and
recognized as such by the public and readers of said . . . publication” and that the
publications were “of and concerning” him. (Id. at p. 103.) The Blodgett court also
determined sufficient evidence supported the verdict for plaintiff. (Id. at p. 104.) It
explained, “[t]he fact that the name of the plaintiff was not contained in the libelous
articles, does not deprive the plaintiff of his remedy, when those articles without using
the plaintiff‟s name, gave a description which was capable of directing attention to him,
and when, as here, it was alleged and . . . proved that readers of the articles understood
them as referring to the plaintiff.”7 (Id. at p. 105.) The same is true here. The radio
advertisement did not mention Forest‟s name, but it gave a description of him that “was
capable of directing attention to him,” as demonstrated by Forest‟s declaration averring
those who heard the advertisement understood it “as referring” to him. (Ibid.)
       Forest is also identifiable when the advertisement is considered together with
Eyster‟s campaign disclosures and with the statements Lintott made at the debate. “The



7       See also Prosser and Keeton, The Law of Torts (5th ed. 1984) section 111, page
783, footnotes omitted [a publication may be defamatory without referring to the
plaintiff; the plaintiff “need not . . . be named, and the reference may be an indirect one,
with the identification depending upon circumstances known to the hearers, and it is not
necessary that every listener understand it, so long as there are some who reasonably
do”]; 2 Harper et al., Harper, James and Gray on Torts (3d ed. 2006) section 5.7, pages
72-73, footnotes omitted [“[i]t is not necessary that the whole world know who was
intended; it is enough that some person or persons recognized the plaintiff as the person
defamed. It is not even necessary that the plaintiff be named. Plaintiff may be
adequately identified by various descriptions or associations so as to be reasonably
recognizable as the one to whom the defamatory publication refers”].

                                             11
statements at issue are to be examined in context, and considering the totality of the
circumstances.” (D.A.R.E. America v. Rolling Stone America (C.D. Cal. 2000) 101
F.Supp.2d 1270, 1290; Ferlauto, supra, 74 Cal.App.4th at p. 1405 [applying totality of
circumstances test to “assess[ ] the context of phrases from an evaluation of the entire
book”].) Here, Eyster‟s campaign disclosure lists Forest as having donated $10,000. At
the debate, Lintott specifically referred to Forest‟s $10,000 donation. She also described
the circumstances leading to the prosecution and Forest‟s petition for a finding of factual
innocence, and claimed Forest was trying to obtain a concealed weapons permit. In the
radio advertisement, Lintott did much the same thing: she mentioned the amount of
Forest‟s donation, the circumstances leading to the prosecution, Forest‟s petition to the
court and his attempt to obtain a concealed weapons permit. The only material difference
between the radio advertisement and the debate is the advertisement does not mention
Forest‟s name. When considered with the debate statements and the campaign
disclosures, however, the advertisement identifies Forest.
       Lintott urges us to examine “each allegedly defamatory statement . . . on its own”
and to disregard the debate statements and Eyster‟s campaign disclosures — both of
which identify Forest — because she did not intend the advertisement and the statements
she made in the debate to be “a package.” To support this argument, Lintott relies on a
trial court decision in In re Cable News Network (N.D. Cal. 2000) 106 F.Supp.2d 1000,
1001-1002 (Cable News).) In that case, the plaintiffs sued CNN and Time Magazine in
several related cases for defamation after both news organizations reported on a particular
military operation during the Vietnam War. (Id. at p. 1001, fn. 1.)
       The issue in Cable News was whether Civil Code section 48 required the plaintiffs
to demand a retraction from Time Magazine. (Cable News, supra, 106 F.Supp.2d at p.
1001.) In dicta, the court stated the magazine article did not identify the plaintiffs and
was not “of and concerning” them, but allowed the plaintiffs to proceed under the theory
that the magazine article and the television broadcasts “were marketed as a single
„package,‟ and that because the CNN broadcasts identified Plaintiffs[,] the „of and
concerning‟ requirement also [was] satisfied with respect to the Time article.” (Ibid.) In


                                             12
a footnote, the Cable News court noted it had “been unable to find any authority
addressing the merits of Plaintiff‟s „package‟ theory. This lack of authority is not
particularly surprising, because the joint marketing of stories through television shows
and magazine articles is a fairly recent phenomenon. The Court has permitted Plaintiffs
to proceed with the „package‟ theory subject to later proof that the CNN broadcasts and
the Time article were prepared and promoted as one single „package.‟” (Id. at p. 1001,
fn. 3.)
          Cable News does not assist Lintott for several reasons. First, we are not bound by
decisions of lower federal courts. (Mendoza v. City of West Covina (2012) 206
Cal.App.4th 702, 716, fn. 12.) Second, the court‟s comments about the “package” theory
in that case are dicta, which we are not bound to follow. (Fairbanks v. Superior Court
(2009) 46 Cal.4th 56, 64 [“a judicial decision is not authority for a point that was not
actually raised and resolved”].) Third, Cable News is distinguishable because — as we
have already concluded — the radio advertisement standing alone satisfies the “of and
concerning” requirement. Fourth, and perhaps most importantly, the Cable News court
allowed the plaintiffs to proceed on the “package” theory.
          New York Times Co. v. Sullivan (1964) 376 U.S. 254 (Sullivan) and Rosenblatt v.
Baer (1966) 383 U.S. 75, 83 (Rosenblatt) — two other cases upon which Lintott relies —
do not alter our conclusion. Sullivan concerned the requirement that a public official in a
defamation case prove actual malice. (Sullivan, supra, at p. 283.) There, the United
States Supreme Court determined the plaintiff did not prove actual malice; the court also
concluded “the evidence was constitutionally defective” because “it was incapable of
supporting the jury‟s finding that the allegedly libelous statements were made „of and
concerning‟” the plaintiff because the advertisement at issue did not mention the plaintiff
by name or by his official position (id. at p. 288) and because the plaintiff‟s evidence at
trial did not “connect the statements” in the advertisement to him. (Id. at p. 292.) The
Sullivan court ultimately concluded the advertisement was an “impersonal attack on
governmental operations” rather than an attack on “an official responsible for those
operations.” (Ibid.)


                                              13
       Lintott‟s reliance on Sullivan is unavailing because Lintott does not claim on
appeal that Forest is a public official required to establish actual malice.8 So, too, is her
reliance on Rosenblatt. In that case, the United States Supreme Court considered whether
the plaintiff was a public official under Sullivan and, if so, whether certain jury
instructions were proper. (Rosenblatt, supra, 383 U.S. at p. 83.) As a result, Rosenblatt
has no application here.
       Here, the court was not required to find that Forest‟s interpretation of the radio
advertisement was “the only permissible meaning that might reasonably be ascribed to
it.” (Yow v. National Enquirer, Inc. (E.D. Cal. 2008) 550 F. Supp.2d 1179, 1184
[denying motion to dismiss where a reasonable reader could have understood a tabloid
article as “communicating the false and defamatory statement that [the plaintiff] used
cocaine”].) At this stage, “the Court must merely be satisfied that one of the reasonable
meanings of the [advertisement]” was that Forest had a pending felony case. (Ibid.)
Here, a natural and reasonable interpretation of the advertisement is that it contains the
statement that Forest had a felony case pending against him when the advertisement aired
in October and November 2010. This statement was false because the court dismissed
People v. Forest in 2008, at Lintott‟s request. Lintott does not argue otherwise. At oral
argument, counsel for Lintott conceded Forest did not have a felony case “pending”
against him when the advertisement aired.
       We conclude Forest made the minimal showing necessary to defeat Lintott‟s
motion to strike because he established a probability of prevailing on the merits of his
defamation claim pertaining to the radio advertisement. “[I]f there is any probability of
prevailing on any act alleged under the heading of a „cause of action,‟ then the cause of
action is not meritless and should not be struck.” (Wallace, supra, 196 Cal.App.4th at p.
1212, citing Oasis West Realty v. Goldman (2011) 51 Cal.4th 811, 822.) Because Forest


8      In its ruling, the court here concluded “[f]or purposes of this ruling . . . making a
substantial campaign contribution alone renders Forest a limited public figure. [Citation.]
Further evidence at trial might put that at issue, but the evidence before the court at this
point is not sufficient to support a determination that Forest is a public figure.”

                                              14
established a probability of prevailing on the statements made in the radio advertisement,
the defamation cause of action was not meritless. Accordingly, the court properly denied
Lintott‟s motion to strike.
       Next, Lintott claims Forest cannot show a probability of prevailing as to the
statements she made during the debate because the statements were true. Forest does not
disagree. He does not claim the court erred by concluding he could not establish a
probability of prevailing on the merits of the defamation claim regarding the debate.
Instead, Forest contends the court erred by taking judicial notice of the superior court file
in People v. Forest, because “it used the contents [of the file] as conclusive evidence [he]
did in fact assault a homeless man with a firearm.” According to Forest, it was error for
the court to judicially notice the superior court file because Lintott: (1) sought judicial
notice in conjunction with her reply rather than with her motion to strike; and (2) did not
provide the court or Forest with a copy of the material that was the subject of judicial
notice until shortly before the hearing on the motion to strike. Forest also argues the
court “should not have used the contents of the criminal file as evidence without having
first found that the doctrine of collateral estoppel applied.”
       We need not address Forest‟s claims regarding judicial notice because we have
concluded the court properly denied Lintott‟s motion to strike and because we do not
opine on the veracity of Lintott‟s statements in the advertisement that Forest assaulted an
unarmed man. (See fn. 5, infra.)
                                       DISPOSITION
       The order denying Lintott‟s motion to strike is affirmed. Forest is awarded his
costs on appeal.




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                                 _________________________
                                 Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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