Filed 10/27/14 Sparks v. CBS News CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


PHIL SPARKS,                                                         B254434

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC513939)
         v.

CBS NEWS INC.,

         Defendant and Respondent.




         APPEAL from a judgment of the Superior Court for Los Angeles County,
Ruth Ann Kwan, Judge. Affirmed.
         Phil Sparks, in pro. per., for Plaintiff and Appellant.
         Jeffer, Mangels, Butler & Mitchell and John J. Lucas for Defendant and
Respondent.
      Plaintiff Phil Sparks appeals from the dismissal of his lawsuit against
defendant CBS News Inc. (CBS), after the trial court granted CBS’s special motion
to strike under Code of Civil Procedure section 425.16 (section 425.16). We
affirm the judgment.


                                   BACKGROUND
      On July 2, 2013, Sparks filed a complaint against CBS, alleging claims for
libel and intentional infliction of emotional distress, based upon an article CBS
published on August 14, 2012. The article described a hearing in the superior
court in which the court granted a restraining order against Sparks, ordering him to
stay 300 yards away from singer-songwriter Sheryl Crow and film executive
Harvey Weinstein. The complaint alleges the article contained three defamatory
statements: (1) that a union representative said that Sparks told her he was going
to shoot Crow and Weinstein; (2) that forensic psychiatrist Dr. David Glaser
interviewed Sparks and determined Sparks was “imminently dangerous”; and
(3) that Dr. Glaser made a diagnosis that Sparks is “unambiguously delusional.”
The complaint alleges these statements are false because Sparks never told anyone
he was going to shoot Crow or Weinstein, and Dr. Glaser only spoke briefly to
Sparks in a casual conversation, and did not interview him in any professional
capacity. The complaint also alleges that the article was not a fair and accurate
report of the court proceedings because it failed to include facts favorable to
Sparks.
      CBS filed a special motion to strike (a so-called anti-SLAPP motion) under
section 425.16.1 CBS argued that Sparks’ complaint arises out of protected

1
        CBS’s motion also included a request to declare Sparks a vexatious litigant. The
trial court denied that motion without prejudice, and CBS has not appealed from that
ruling.

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activity, and that Sparks cannot establish a probability of prevailing because
(1) Sparks’ claims are barred by the “fair and true report” privilege under Civil
Code section 47, subdivision (d) (section 47(d)); (2) the claims are barred by the
First and Fourteenth Amendments, which shield the press from liability for
truthfully publishing public information in official court records; and (3) Sparks
failed to request a retraction under Civil Code section 48a, and therefore cannot
recover general damages. In support of its motion, CBS submitted, among other
things, a copy of the reporter’s transcript of the hearing on the restraining order,
which hearing was the subject of the article at issue in the complaint.
      The trial court granted the motion. The court found that Sparks’ causes of
action arise from the publication of a news article concerning a judicial proceeding,
and therefore they arise from protected activity under section 425.16, subdivision
(e)(2). The court also found that Sparks failed to meet his burden to demonstrate a
probability of prevailing because he failed to submit any admissible evidence to
support his causes of action. Additionally, the court found that CBS submitted
evidence showing the article at issue was absolutely privileged under section 47(d),
and Sparks failed to submit any admissible evidence to show that the article was
not a “fair and true report” and thus not entitled to protection under section 47(d).
Finally, the court found that Sparks failed to submit evidence showing he complied
with Civil Code section 48a by requesting a retraction or correction, and failed to
submit evidence showing he suffered any special damages. Sparks timely filed a
notice of appeal from the court’s ruling.




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                                    DISCUSSION
      “Section 425.16 provides an expedited procedure for dismissing lawsuits
that are filed primarily to inhibit the valid exercise of the constitutionally protected
rights of speech or petition. . . . [¶] A special motion to strike a complaint under
section 425.16 involves two steps. First, the moving party has the initial burden of
making a threshold showing that the challenged cause of action is one arising from
a protected activity. (§ 425.16, subd. (b)(1).) In order to meet this burden, the
moving party must show the act underlying the challenged cause of action fits one
of the categories described in section 425.16, subdivision (e). [Citation.] [¶] Once
the moving party has made the threshold showing, the burden in step two shifts to
the opposing party. Under step two of the statutory analysis, the opposing party
must demonstrate a probability of prevailing on the claim. (§ 425.16, subd.
(b)(1).)” (Albanese v. Menounos (2013) 218 Cal.App.4th 923, 928.) If the
opposing party fails to do so, the special motion to strike properly is granted.
      On appeal, we review the order granting the special motion to strike de
novo, engaging in the same two-step process as the trial court. (Paiva v. Nichols
(2008) 168 Cal.App.4th 1007, 1016-1017.)


A.    Step One -- Arising From Protected Activity
      As noted, the trial court found that Sparks’ causes of action arise from
protected activity under section 425.16, subdivision (e)(2). That subdivision states
that protected activity 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).)
      Sparks contends the trial court misinterpreted subdivision (e) when it found
that a news article concerning a judicial proceeding constitutes protected activity

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under section 425.16. He argues that, to be protected activity, the “report” (by
which it appears he means the writing at issue) must be “authorized by law.” He is
incorrect. The phrase “authorized by law” in subdivision (e)(2) relates to “any
other official proceeding” rather than the “written or oral statement or writing.”
      It is well established that publishing a news article that reports on statements
made during a judicial or other official proceeding constitutes protected activity
under section 425.16, subdivision (e). (See, e.g., Sipple v. Foundation for Nat.
Progress (1999) 71 Cal.App.4th 226, 237-238 [magazine article describing
allegations that arose during judicial proceeding is protected under section 425.16]
(Sipple); see also Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37
Cal.App.4th 855, 862-863 [news articles reporting on hearings before Board of
Supervisors and related lawsuits are protected under section 425.16]; Braun v.
Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1048-1049 [news article
reporting on an authorized official proceeding is protected under section 425.16].)
Therefore, the trial court correctly found that Sparks’ causes of action, which were
based upon statements made in a news article reporting on a judicial proceeding,
arose from protected activity under section 425.16.


B.    Step Two -- Probability of Prevailing
      “To show a probability of prevailing for purposes of section 425.16, a
plaintiff must ‘“‘make a prima facie showing of facts which would, if proved at
trial, support a judgment in plaintiff’s favor.’”’ [Citation.] This standard is
‘similar to the standard used in determining motions for nonsuit, directed verdict,
or summary judgment,’ in that the court cannot weigh the evidence. [Citations.]
However, the plaintiff ‘cannot simply rely on the allegations in the complaint’
[citation], but ‘must provide the court with sufficient evidence to permit the court
to determine whether “there is a probability that the plaintiff will prevail on the

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claim.”’ [Citation.]” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th
993, 1010.)
       In this case, the trial court found that Sparks failed to present any admissible
evidence to support his causes of action, and therefore failed to meet his burden to
demonstrate a probability of prevailing. The record on appeal supports the court’s
finding. The only evidence submitted by Sparks that is included in the record on
appeal2 is records from the Medical Board of California regarding a disciplinary
proceeding against Dr. Glaser, the forensic psychiatrist whose testimony was
reported in the news article at issue. Sparks contends that those records establish
that Dr. Glaser’s medical license was revoked at the time he testified at the hearing
on the protective order.3 But whether Dr. Glaser’s license was revoked is
irrelevant to Sparks’ libel and intentional infliction of emotional distress causes of
action, and has no bearing on Sparks’ probability of prevailing, because the news
article at issue merely reported on the testimony presented at the hearing; the
validity of Dr. Glaser’s license was not raised at the hearing.
       Inasmuch as the record on appeal supports the trial court’s finding that
Sparks failed to present evidence to meet his burden to establish a probability of
prevailing on his causes of action, we may affirm the dismissal of Sparks’
complaint on that basis alone. But even if Sparks had submitted some relevant
evidence, and included that evidence in the record on appeal, we nevertheless
would affirm the dismissal on another ground relied upon by the trial court, i.e., the

2
      We note that Sparks failed to designate for inclusion in the clerk’s transcript his
opposition to CBS’s motion.
3
        In fact, it appears that Dr. Glaser’s medical license was not actually revoked.
Although the Disciplinary Order states that the Physician and Surgeon’s Certificate
issued to Dr. Glaser “is revoked,” it then states: “However, the revocation is stayed and
[Dr. Glaser] is placed on probation” for two years under certain terms and conditions.
(Italics added.)

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court’s finding that the news article at issue was absolutely privileged under
section 47(d).
      Section 47(d) provides, in relevant part, that a privileged publication is one
made “[b]y a fair and true report in, or a communication to, a public journal, of (A)
a judicial . . . proceeding, or (D) of anything said in the course thereof.” (Civ.
Code, § 47, subd. (d)(1).) The statute provides “a broad protection over the
media.” (Sipple, supra, 71 Cal.App.4th at pp. 241-242.) “[T]he ‘fair and true
report’ requirement [in section 47(d)] does not limit the privilege to statements that
contain no errors. Our Supreme Court recognized that ‘“[e]rroneous statement is
inevitable in free debate, and . . . must be protected if the freedoms of expression
are to have the ‘breathing space’ that they ‘need . . . to survive.’” [Citation.]’
[Citation.] Thus the publication concerning legal proceedings is privileged as long
as the substance of the proceedings is described accurately. ‘Under California law,
a newspaper report is “fair and true” if it captures “‘the substance, the gist, the
sting of the libelous charge.’” [Citations.]’” (Colt v. Freedom Communications,
Inc. (2003) 109 Cal.App.4th 1551, 1558.)
      In this case, we have reviewed the reporter’s transcript from the hearing the
news article reported on, and conclude the trial court was correct in finding that the
article’s statements that Sparks asserts were libelous and caused him emotional
distress -- (1) that a union representative said that Sparks told her he was going to
shoot Crow and Weinstein; (2) that forensic psychiatrist Dr. David Glaser
interviewed Sparks and determined Sparks was “imminently dangerous”; and
(3) that Dr. Glaser made a diagnosis that Sparks is “unambiguously delusional” --
were accurate reports of the testimony at the hearing. Sparks does not contend
otherwise, but instead argues that section 47(d) does not apply because a “fair and
true report” must include “both sides of the case roughly equally.” He is incorrect.
The focus of the court proceeding was to determine whether Sparks presented a

                                           7
threat to Crow and Weinstein such that they were entitled to a restraining order.
The court in that proceeding relied upon the evidence presented and concluded that
he was such a threat. The news article published by CBS merely recounted the
evidence the trial court relied upon in issuing the restraining order. Thus, the
article captured the substance or gist of the court proceeding and was absolutely
privileged under section 47(d).


                                  DISPOSITION
             The judgment is affirmed. CBS shall recover its costs on appeal.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             COLLINS, J.




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