Bruce Fein v. Peter Kesterson

476 F. App'x 673

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 27, 2012
• Docket: 10-56502
• Status: Unpublished

Opinion

MEMORANDUM **

Bruce Fein appeals the district court’s grant of Peter Kesterson’s motion to strike Fein’s defamation suit under California’s anti-strategic lawsuits against public participation (anti-SLAPP) law. See Cal.Civ. Proe.Code § 425.16(b)(1). We review de novo the district court’s grant of an anti-SLAPP motion. Price v. Stossel, 620 F.3d 992, 999 (9th Cir.2010). We affirm.

The issue here is narrow. To prevail, Fein must show a probability he can prove by clear and convincing evidence that Kes-terson showed reckless disregard for the truth. Annette F. v. Sharon S., 119 Cal. App.4th 1146, 1167, 15 Cal.Rptr.3d 100 (Cal.Ct.App.2004). Fein has not carried this burden. “Reckless disregard” requires a “high degree of awareness ... of probable falsity.” Id. (quoting Garrison v. Louisiana, 379 U.S. 64, 74, 85 S.Ct. 209,13 L.Ed.2d 125 (1964)). Kesterson did not have the necessary suspicion of likely falsity. He relied on several credible newspapers, and his conclusions were a rational interpretation of the articles he read. See Conroy v. Spitzer, 70 Cal.App.4th 1446, 1453, 83 Cal.Rptr.2d 443 (Cal.Ct.App.1999); Time, Inc. v. Pape, 401 U.S. 279, 290, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971).

The other evidence in the record does not support a contrary inference strong enough to deny an anti-SLAPP motion. There were no “obvious reasons” for Kes-terson to doubt certain of his sources, and even if there were, he confirmed his conclusions by consulting more reliable sources. See Dodds v. Am. Broadcasting Co., Inc., 145 F.3d 1053, 1061-63 (9th Cir.1998). Kesterson’s concessions that he was not 100% certain about his conclusions did not equal “a high degree of awareness of ... probable falsity.” Annette F., 119 Cal.App.4th at 1167, 15 Cal.Rptr.3d 100 (quoting Garrison, 379 U.S. at 74, 85 S.Ct.209). Nor did Kesterson’s supposed motive to defame Fein. See Live Oak Publ’g Co. v. Cohagan, 234 Cal.App.3d 1277, 1292, 286 Cal.Rptr. 198 (Cal.Ct.App.1991).

AFFIRMED. Costs to Kesterson.

** This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.