Issa v. Applegate

• Court: California Court of Appeal
• Decided: January 24, 2019
• Docket: D072375
• Status: Published

Opinion

Filed 1/24/19 CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

DARRELL E. ISSA, D072375

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2016-00039144- CU-MC-CTL) DOUGLAS APPLEGATE et al.,

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County,

Richard E.L. Strauss, Judge. Affirmed.

Bell, McAndrews & Hiltachk, Charles H. Bell, Jr., Paul T. Gough, Brian T.

Hildreth and Terry J. Martin for Plaintiff and Appellant.

Law Offices of Donnie R. Cox and Donnie R. Cox for Defendants and

Respondents.

I.

INTRODUCTION

During the course of the 2016 political campaign to represent the 49th

Congressional District, challenger candidate Doug Applegate's campaign ran two television advertisements about incumbent Darrell Issa that Issa contends were false and

defamatory. Issa filed a lawsuit against Applegate, Doug Applegate for Congress, Inc.,

and Robert Dempsey (the respondents), alleging a cause of action for libel based on

statements made in these two television advertisements.

In response to the lawsuit, the respondents filed a special motion to strike the

complaint, pursuant to Code of Civil Procedure section 425.16.1 The trial court granted

the respondents' anti-SLAPP motion and entered judgment in favor of the respondents on

Issa's complaint. Issa now appeals from the judgment.

In resolving this appeal, we must bear in mind the political context in which the

advertisements at issue were published and the extraordinary degree of protection

accorded to political speech, including political advertising, in our free society. " '[T]he

constitutional guarantee [of free speech] has its fullest and most urgent application

precisely to the conduct of campaigns for political office.' " (Buckley v. Valeo (1976) 424

U.S. 1, 15.) It is beyond dispute that "political advertisements . . . [are] the hallmark of a

public forum." (AFDI v. Suburban Mobility Auth. for Regional Transp. (6th Cir. 2012)

698 F.3d 885, 890.) While "[i]t is abhorrent that many political campaigns are mean-

spirited affairs that shower the voters with invective instead of insight[,]" in order "to

ensure the preservation of a citizen's right of free expression, we must allow wide

1 Code of Civil Procedure section 425.16 is commonly referred to as the anti- SLAPP (strategic lawsuit against public participation) statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All further statutory references are to the Penal Code unless otherwise indicated. 2 latitude." (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 955 (Beilenson), fns.

omitted, italics added.) With this understanding, we consider Issa's contentions that the

television advertisements that his political opponent published were false and

defamatory. We ultimately conclude that the trial court properly granted the respondents'

anti-SLAPP motion because Issa cannot demonstrate that the statements about which he

complains are demonstrably false statements of fact.

We affirm the judgment of the trial court.

II.

FACTUAL AND PROCEDURAL BACKGROUND

Issa has served in the United State House of Representatives since 2000. During

the time of the relevant events in this case, Issa was seeking reelection to represent the

49th Congressional District of California in the November 2016 election. Doug

Applegate was Issa's opponent, Robert Dempsey was Applegate's campaign manager,

and Doug Applegate for Congress, Inc. was Applegate's principal campaign committee.

On November 7, 2016, just before the election took place and Issa prevailed, Issa

sued the respondents for defamation, alleging that two television advertisements

published by the respondents during the political campaign were false and defamatory.

Specifically, Issa filed a complaint alleging a single cause of action for libel arising from

the two separate television advertisements.2

2 Defamation constitutes an injury to reputation; the injury may occur by means of libel or slander. (Civ. Code, § 44.)

3 In the portion of the complaint setting out the factual allegations, Issa identifies the

two television advertisements that he asserts were false and defamatory.

The first advertisement about which Issa complains is a television advertisement

that first aired on September 20, 2016 (the 9/20 advertisement). Issa alleges that the 9/20

advertisement was shown on broadcast and cable television stations that serve the 49th

Congressional District, and was also available to view on Applegate's campaign website.

Issa claims that the "main thrust" of the 9/20 advertisement "is the false allegation that

Congressman Issa has profited off his eight terms in Congress." He further alleges,

"[s]pecifically, . . . the 9/20 Advertisement visually depicts a copy of an article from The

New York Times dated August 14, 2011," and is referencing an article that was published

in The New York Times "entitled 'A Businessman in Congress Helps His District and

Himself' " that was published on August 14, 2011 (the Article).3

According to Issa, "[i]nstead of including the actual headline of the Article, the

9/20 Advertisement visually depicts a fake, doctored [New York Times] headline

consisting of the following words that do not appear anywhere in the Article: 'Rep. Issa

Gamed the system to line his own pockets' " and also depicts a "fake sub-headline, which

likewise does not appear in the Article . . . . 'Rep. Issa has secured millions of dollars in

3 The Article makes a number of assertions regarding Issa's personal wealth, his businesses and real property holdings, and actions he took as a Congressman that appear to have benefitted his businesses and properties. The Article also describes the fact that Issa's personal wealth increased during his time serving in Congress. We describe additional details about the statements made in the Article, as relevant to the issues in this case, later in this opinion. 4 Congress earmarks for roadwork to the many properties he owns.' "4 Issa further

complains that later in the 9/20 advertisement, words "to the effect that Congressman Issa

has 'steer[ed] millions in taxpayer money to help properties he owns' " are visually

depicted and are also heard in a voiceover. Issa alleges that by formatting the visual

images in the 9/20 advertisement in this particular way, including by "juxtaposing an

image . . . that purport[s] to represent the Article[ ] with the statements identified . . .

above, the 9/20 Advertisement falsely and misleadingly leads viewers to believe that

[certain] statements [presented on the screen] are quoted from an article in The New York

Times," even though the "words in quotation marks featured in the 9/20 Advertisement do

not appear anywhere in the Article."5

4 A review of the 9/20 advertisement shows a series of images with a narrator's voiceover. With respect to the portions of the 9/20 advertisement about which Issa is complaining, at one point, there is an image on the screen depicting what appear to be columns of a newspaper article. A review of the text demonstrates that the text is nonsensical. Inset into the faux newspaper columns are the two statements that Issa takes issue with, set in type font and with formatting that one could reasonably interpret as being a newspaper headline and subheadline stating the following: "Rep. Issa Gamed the system to line his own pockets" and "Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to the many properties he owns." At the bottom of the image, overlaying some of the faux article text, is an image of The New York Times masthead. A still image of this portion of the 9/20 advertisement is attached as Exhibit A at the end of this opinion.

5 Issa also alleges that the 9/20 advertisement's "attempted reproduction of the Article itself constitutes a publication of false material" because "the Article contains numerous falsities reported as fact in supporting the false premise that Congressman Issa has obtained personal financial benefits through his activities as [a] member of the House of Representatives and generally painting Congressman Issa in a false light." He identifies three specific errors in the original publication of the Article, and contends that there were others, but does not identify them; however, Issa also acknowledges that The New York Times published corrections pertaining to these three errors. Although Issa 5 The second advertisement about which Issa complains is a television

advertisement that first aired on October 4, 2016 (the 10/4 advertisement). According to

the allegations of the complaint, "[t]he 10/4 Advertisement uses images of the terrorist

attacks of September 11, 2011, and misleading statements about Congressman Issa's

voting record, and a doctored quote to wage the dishonest charge that Congressman Issa

has opposed supporting the victims, first responders, and heroes of September 11th."

Issa alleges that the 10/4 advertisement "used a doctored quote in an effort to

smear Congressman Issa's reputation" by suggesting that Issa had said that " 'he'd done

enough for something that was "simply a plane crash." ' " Issa quotes the actual

comments that he made, which appear in the Congressional Record, regarding his vote

against the bill referenced in the 10/4 advertisement. According to the complaint, Issa's

actual comments regarding the vote in question included the following:

"Mr. Issa: Okay. Because, well, my question from the dais is purely a Federal one. We voted in the wake of 9/11 huge amounts of money to the city and the state of New York. We have spent, arguably, between $1-$2 trillion related to the post-9/11, if you include going to Afghanistan and so on.

"I have to ask why damages from a fire that had no dirty bomb in it-- it had no chemical munitions in it, it simply was an aircraft, residue of two aircraft, and residue of the materials used to build this

suggests that the 9/20 advertisement is false, in part because it relies on erroneous matter that was initially published in the Article, Issa has apparently abandoned the contention that the "attempted reproduction of the Article, itself, constitutes publication of false material"; he does not make any argument in this regard in his briefing on appeal. Given that a visual review of the 9/20 advertisement demonstrates that it does not actually reproduce any portion of the Article, we do not focus our attention on these allegations of the complaint, except to the extent that they bear on Issa's contention that certain statements in the 9/20 advertisement are false because they rely on the uncorrected version of the Article. 6 building--why the firefighters who went there and everyone in the City of New York needs to come to the Federal Government for the dollars versus, quite frankly, this being primarily a State consideration.

"You know, it is very simple: I can't vote for additional money for New York if I can't see why it would be appropriate to do this every single time a similar situation happens, which quite frankly includes any urban terrorist. It doesn't have to be somebody from Al Qaida. It can be somebody who decides that they don't like animal testing at one of our pharmaceutical facilities." (Italics added.)6

Issa further alleges that the 10/4 advertisement was "additionally false and

misleading in that it fails to mention Congressman Issa's strong record of leadership on

national security and supporting the victims, families, and first responders of 9/11."7

In the cause of action for libel, Issa states:

"The statements in the 9/20 and 10/4 Advertisements concerning Congressman Issa, reproduced above, are false and libelous and purport to state facts about the Congressman which are false. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 261–263

6 Issa does not summarize what he believes those three paragraphs state, nor does he identify how they are materially different from the summary of his comments provided in the 10/4 advertisement.

7 Although Issa appears to be asserting in his complaint that the respondents had some obligation to mention Issa's otherwise "strong record of leadership on national security and supporting the victims, families, and first responders of 9/11" in the 10/4 advertisement, he does not develop this argument on appeal. Rather, Issa instead appears to rely on this assertion in his complaint and evidence regarding his voting record to support his assertion on appeal that his voting record "is just the opposite of what was stated in the 10/4 advertisement," i.e., to bolster his argument that the message conveyed in the 10/4 advertisement is false. In any event, there is no authority to support the contention that a political candidate's advertisement may be considered to be defamatory if it does not present a balanced view of his opponent. It is beyond dispute that a political candidate is free to engage in political speech that focuses on a single act, vote or comment by the opponent, without reference to that opponent's entire record on a particular issue, and that casts the opponent in an unflattering light. 7 ['The sine qua non of recovery for defamation . . . is the existence of a falsehood']; see also Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 ['The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage']."

Issa alleges in subsequent paragraphs that the advertisements refer to him, concern

him, were maliciously and intentionally published by the respondents and made with

actual knowledge of their falsity or reckless disregard for their truth or falsity, are

libelous on their face, and have adversely affected Issa's reputation and professional life.

Just over two months after Issa filed his complaint, the respondents filed a special

motion to strike the complaint, asserting that the allegations of the complaint arose from

protected activities and that Issa could not establish a probability of prevailing on his

claims.

After full briefing and a hearing on the matter, the trial court granted the motion,

concluding that the allegations of the complaint arose from protected activities and that

Issa had not demonstrated a probability of prevailing on his claim for defamation because

he could not show that the alleged defamatory statements were false, and could not

demonstrate that the statements were made with actual malice—i.e., that the statement

were made with the knowledge that they were false or with reckless disregard as to

whether they were false.

Issa filed a timely notice of appeal.

In June 2018, during the pendency of this appeal, Issa and defendant Dempsey

stipulated to the dismissal of the appeal with respect to respondent Dempsey. This court

dismissed the appeal as to Dempsey on June 16, 2018.

8 III.

DISCUSSION

On appeal, Issa contends that the trial court erred in granting the respondents' anti-

SLAPP motion. According to Issa, he demonstrated a probability of prevailing on his

defamation claims, in that he presented evidence of the falsity of the advertisements as

well as the fact that the respondents acted with malice in publishing the false statements.

Specifically, Issa contends that he demonstrated that the 9/20 advertisement (1) made the

false and defamatory statement that he had "[g]amed the system to line his own pockets,"

and also falsely implied that The New York Times had made the statement that Issa had

"[g]amed the system to line his own pockets"; (2) made the false and defamatory

statement "Rep. Issa has secured millions of dollars in Congress earmarks for roadwork

to the many properties he owns," and falsely implied that the New York Times had made

this statement, as well; and (3) made the false and defamatory statement that Issa had

"steer[ed] millions in taxpayer money to help properties he owned."

A. The anti-SLAPP statute and applicable legal standards

A SLAPP suit is "a meritless lawsuit 'filed primarily to chill the defendant's

exercise of First Amendment rights.' " (Paul v. Friedman (2002) 95 Cal.App.4th 853,

861, quoting Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2.)

California's anti-SLAPP statute allows a defendant to move to dismiss "certain

unmeritorious claims that are brought to thwart constitutionally protected speech or

petitioning activity." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1420–1421.)

The anti-SLAPP statute provides: "A cause of action against a person arising from any

9 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."

(Code Civ. Proc., § 425.16, subd. (b)(1).)

A court's consideration of an anti-SLAPP motion involves a two-pronged analysis.

(Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) The Supreme Court has

expounded on the standards to be applied in this two-pronged analysis:

"At the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. . . . If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff's showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing." (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)

To make a showing under the first prong, the defendant need not show that the

actions it is alleged to have taken were protected as a matter of law, but need only

establish a prima facie case that its alleged actions fell into one of the categories listed in

section 425.16, subdivision (e). (See Flatley v. Mauro (2006) 39 Cal.4th 299, 314.) If

the court finds that the defendant has made the required showing, the burden shifts to the

plaintiff to demonstrate that "there is a probability that the plaintiff will prevail on the

10 claim." (§ 425.16, subd. (b)(1); see DuPont Merck Pharmaceutical Co. v. Superior Court

(2000) 78 Cal.App.4th 562, 567–568.)

"Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e.,

that arises from protected speech or petitioning and lacks even minimal merit—is a

SLAPP, subject to be stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th

82, 89.)

Our review of the trial court's order on an anti-SLAPP motion is de novo. (Oasis

West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) If the trial court's

decision denying an anti-SLAPP motion is correct on any theory applicable to the case,

we may affirm the order regardless of the correctness of the grounds on which the trial

court reached its conclusion. (Robles v. Chalilpoyil (2010) 181 Cal.App.4th 566, 573.)

This court considers " 'the pleadings, and supporting and opposing affidavits . . . upon

which the liability or defense is based.' " (Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 269, fn. 3 (Soukup), quoting § 425.16, subd. (b)(2).) The court does not

weigh or compare the evidence, but rather accepts as true the evidence favorable to the

plaintiff while evaluating the defendant's evidence " 'only to determine if it has defeated

that submitted by the plaintiff as a matter of law.' " (Soukup, at p. 269, fn. 3.)

B. Application of anti-SLAPP to this case

1. First prong—protected activity

The parties agree that Issa's defamation claims arise from protected speech, and

thus meet the first prong of the anti-SLAPP statute.

11 2. Second prong—probability of prevailing

Because the respondents have met their burden to show that the complaint alleges

acts arising from protected activity, the burden shifts to Issa to make a prima facie

showing of facts that, if proven, would support a judgment in his favor. (Equilon

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) The "burden of

establishing a probability of prevailing is not high: We do not weigh credibility, nor do

we evaluate the weight of the evidence. Instead, we accept as true all evidence favorable

to the plaintiff and assess the defendant's evidence only to determine if it defeats the

plaintiff's submission as a matter of law." (Overstock.com, Inc. v. Gradient Analytics,

Inc. (2007) 151 Cal.App.4th 688, 699–700.)

Issa asserts claims for defamation. "The elements of a defamation claim are (1) a

publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural

tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683,

720.)" (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369.) "A statement is defamatory

when it tends 'directly to injure [a person] in respect to [that person's] office, profession,

trade or business, either by imputing to [the person] general disqualification in those

respects which the office or other occupation peculiarly requires, or by imputing

something with reference to [the person's] office, profession, trade, or business that has a

natural tendency to lessen its profits.' (Civ. Code, § 46, subd. 3.)" (McGarry v.

University of San Diego (2007) 154 Cal.App.4th 97, 112 (McGarry).) Issa specifically

claims that the advertisements adversely affected his reputation and professional life.

12 Though mere opinions are generally not actionable (Taus v. Loftus, supra, 40

Cal.4th at p. 720), a statement of opinion that implies a false assertion of fact is

actionable. (McGarry, supra, 154 Cal.App.4th at p. 112 [" '[s]imply couching such

statements in terms of opinion does not dispel these [false, defamatory] implications'

[citation] because a speaker may still imply 'a knowledge of facts which lead to the

[defamatory] conclusion' "]; Ruiz v. Harbor View Community Assn. (2005) 134

Cal.App.4th 1456, 1471 ["An opinion . . . is actionable only ' "if it could reasonably be

understood as declaring or implying actual facts capable of being proved true or

false" ' "].)

The defamatory statement must specifically refer to, or be " 'of and concerning,' "

the plaintiff. (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042.) Further, "it is

not the literal truth or falsity of each word or detail used in a statement which determines

whether or not it is defamatory; rather, the determinative question is whether the 'gist or

sting' of the statement is true or false, benign or defamatory, in substance." (Ringler

Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1181–1182.)

"In determining whether a statement is libelous we look to what is explicitly stated

as well as what insinuation and implication can be reasonably drawn from the

communication." (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803.) " ' "[I]f the defendant

juxtaposes [a] series of facts so as to imply a defamatory connection between them, or

[otherwise] creates a defamatory implication . . . he may be held responsible for the

defamatory implication, . . . even though the particular facts are correct." ' " (Weller v.

American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1003, fn. 10.) The

13 "pertinent question" is whether a "reasonable fact finder" could conclude that the

statements "as a whole, or any of its parts, directly made or sufficiently implied a false

assertion of defamatory fact that tended to injure" plaintiff's reputation. (James v. San

Jose Mercury News, Inc. (1993) 17 Cal.App.4th 1, 13.)

We apply a " 'totality of the circumstances' " test to determine whether a statement

is fact or opinion, and whether a statement declares or implies a provably false factual

assertion; that is, courts look to the words of the statement itself and the context in which

the statement was made. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254,

260–261, 266; Overhill Farms, Inc. v. Lopez (2010) 190 Cal.App.4th 1248, 1261

(Overhill Farms); Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 385–

386 (Franklin).) "Under the totality of the circumstances test, '[f]irst, the language of the

statement is examined. For words to be defamatory, they must be understood in a

defamatory sense . . . . [¶] Next, the context in which the statement was made must be

considered.' " (Franklin, at pp. 385–386.) Whether challenged statements convey the

requisite factual imputation is ordinarily a question of law for the court. (Overhill Farms,

at p. 1261; Nygard, Inc. v. Uusi–Kerttula (2008) 159 Cal.App.4th 1027, 1048–1049

(Nygard).)

Additionally, because Issa is a public figure, if he is able to establish the falsity of

the challenged statements, he must also demonstrate, by clear and convincing evidence,

that the challenged statements were made with actual malice in order to prevail on his

claim for defamation. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71,

14 84.)8 " 'The rationale for . . . differential treatment [between public figures and private

individuals] is, first, that the public figure has greater access to the media and therefore

greater opportunity to rebut defamatory statements, and second, that those who have

become public figures have done so voluntarily and therefore "invite attention and

comment." ' " (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1260 (Jackson).)

In addition, we cannot ignore the context in which this case has arisen—Issa's

complaint seeks redress for a political advertisement that was shown on television during

a heated election campaign. Indeed, "[p]olitical and self expression lie at the very heart

of the First Amendment." (U.S. v. Alvarez (9th Cir. 2011) 638 F.3d 666, 677, italics

added.) For this reason, in determining the merits of an anti-SLAPP motion in the

context of political advertising, we must be vigilant to afford a wide berth to the free

exchange of ideas, including those that challenge or criticize statements made or actions

taken by candidates seeking elected office. " '[T]hose engaged in political debate are

entitled not only to speak responsibly but to ". . . speak foolishly and without

moderation." (Baumgartner v. United States [(1944)] 322 U.S. 665, 674].)' [Citation.]"

(Beilenson, supra, 44 Cal.App.4th at p. 949–950.)

"Hyperbole, distortion, invective, and tirades are as much a part of American politics as kissing babies and distributing bumper stickers and pot holders. Political mischief has been part of the American political scene since, at least, 1800.

"In any election, public calumny of candidates is all too common. 'Once an individual decides to enter the political wars, he subjects himself to this kind of treatment. . . . [D]eeply ingrained in our

8 The parties agree that Issa is a public figure. 15 political history is a tradition of free-wheeling, irresponsible, bare knuckled, Pier 6, political brawls.' (Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d at p. 54.) To endure the animadversion, brickbats and skullduggery of a given campaign, a politician must be possessed with the skin of a rhinoceros. (Hein v. Lacy (1980) 228 Kan. 249, 263 [616 P.2d 277, 286].) Harry Truman cautioned would-be solons with sage advice about the heat in the kitchen.

"Nevertheless, political campaigns are one of the most exhilarating phenomena of our democracy. They bring out the best and the worst in us. They allow candidates and their supporters to express the most noble and, lamentably, the most vile sentiments. They can be fractious and unruly, but what they yield is invaluable: an opportunity to criticize and comment upon government and the issues of the day.

"The candidate who finds himself or herself the victim of misconduct is not without a remedy. Those campaign tactics which go beyond the pale are sanctionable under FPPC laws. (Elec. Code, § 16000 et seq.; Gooch v. Hendrix (1993) 5 Cal.4th 266 [election set aside for illegal absentee ballots].)" (Beilenson, supra, 44 Cal.App.4th at pp. 954–955, fns omitted.)

Although, as the Beilenson court lamented, "many political campaigns are mean-

spirited affairs that shower the voters with invective instead of insight," it nevertheless

remains beyond question that in order "to ensure the preservation of a citizen's right of

free expression, we must allow wide latitude." (Beilenson, supra, 44 Cal.App.4th at p.

955.)

a. The 9/20 advertisement

Issa argues that the 9/20 advertisement "visually depicts a fake, doctored headline

consisting of the following words that do not appear anywhere in the [New York Times]

Article: Rep. Issa Gamed the system to line his own pockets," and further complains that a

"fake sub-headline, which likewise does not appear in the Article, is also depicted: Rep.

16 Issa has secured millions of dollars in Congress earmarks for roadwork to the many

properties he owns." He asserts that "[b]y juxtaposing an image of the Article (or at least

images that purport to represent the Article) with the statements identified above, the 9/20

Advertisement falsely and misleadingly led viewers to believe that the statements are

actual quotes from The New York Times." He further asserts that "the 9/20

Advertisement [draws on the Article to] falsely accuse[ ] Issa [of ]'steering millions in

taxpayer money to help properties he owned.' "

i. The statement "Issa Gamed the system to line his own pockets"

We begin with Issa's contention regarding the statement that he " '[g]amed the

system to line his own pockets.' " It appears from Issa's briefing that he is contending

both that the statement that he "[g]amed the system to line his own pockets" is provably

false, and also that the 9/20 advertisement implies that The New York Times stated that

"Issa [g]amed the system to line his own pockets," and that this implication is also false.

" 'The falsehood requirement is grounded in the First Amendment itself. "Under the First

Amendment there is no such thing as a false idea. However pernicious an opinion may

seem, we depend for its correction not on the conscience of judges and juries but on the

competition of other ideas." [Citations.]' " (Nygard, supra, 159 Cal.App.4th at p. 1048.)

" 'Though mere opinions are generally not actionable [citation], a statement of opinion

that implies a false assertion of fact is . . . .' [Citations.] Thus, the 'inquiry is not merely

whether the statements are fact or opinion, but " 'whether a reasonable fact finder could

conclude the published statement declares or implies a provably false assertion of

fact.' " ' " (Jackson, supra, 10 Cal.App.5th at p. 1261.)

17 We conclude that the statement that "Issa [g]amed the system to line his own

pockets" is not provably false. Specifically, the statement appears to be a fair summary

of the gist of the Article from The New York Times, albeit one that is packaged in the

type of " ' " 'rhetorical hyperbole,' 'vigorous epithet[s],' 'lusty and imaginative

expression[s] of . . . contempt,' and language used 'in a loose, figurative sense' " ' "

(Nygard, supra, 159 Cal.App.4th at p. 1048) that is accorded constitutional protection;

Issa has not challenged the basic premise of the Article published by The New York

Times nor has he demonstrated, apart from three minor corrections that the New York

Times published with respect to the Article, that the corrected Article contains

falsehoods.9 The title of the Article that forms the main basis of the claims made in the

9/20 advertisement is "A Businessman in Congress Helps His District and Himself." The

Article comments that although "[m]ost wealthy members of Congress push their

financial activities to the side, with many even placing them in blind trusts to avoid

9 Issa has complained that the Article, as originally published, included at least three factual errors. He acknowledges, however, that The New York Times published corrections regarding those items. There is no evidence that Issa ever challenged any other factual assertions in the Article, and the record demonstrates that The New York Times did not retract the Article, and did not alter any other statements or conclusions in the Article. Further, it is clear from a review of those corrections that they do not in any way alter the main thrust of the Article. The three corrections published by The New York Times identified misstatements about the value of a holding company split, the sale of an AIM mutual fund, and the purchase price for a medical office plaza. Issa sought no other corrections to the Article, and these three corrections do not materially change the essence of the Article, which is that while Issa was serving in Congress, he voted on matters that could benefit him financially, and that his businesses holdings, his personal wealth and his business and real property portfolio increased during his time in Congress. 18 appearances of conflicts of interest," Issa "may be alone in the hands-on role he has

played in overseeing a remarkable array of outside business interests since his election in

2000." The Article also notes that during his time in Congress, Issa has "bought up office

buildings, split a holding company into separate multi-million dollar businesses, started

an insurance company, traded hundreds of millions of dollars in securities, invested in

overseas funds, retained an interest in his auto-alarm company and built up a family

foundation." According to the Article, "it is sometimes difficult to separate the business

of Congress from the business of Darrell Issa." In this regard, the Article states that as

Issa's "private wealth and public power have grown, so too has the overlap between his

private and business lives, with at least some of the congressman's government actions

helping to make a rich man even richer." In addition, the Article states that, according to

Issa's financial filings, his "minimum wealth doubled in the last year, and he appears

flush with cash."

In view of the content of the Article, a charge by Applegate, Issa's political

opponent, that Issa has used his position in Congress to improve his own financial

standing, is well within the range of fair commentary—which includes "[h]yperbole,

distortion, invective, and tirades" (Beilenson, supra, 44 Cal.App.4th at p. 954)—that is

permissible with respect to a political rival. Further, to the extent that this descriptive

statement implies a certain factual assertion about Issa—i.e., that he has utilized his

position in Congress to benefit himself—such a factual assertion is supported by the

factual statements and conclusions drawn in the corrected version of the Article, the truth

of which Issa has not challenged.

19 However, Issa's complaint is not simply that Applegate, his political opponent,

made these statements about him in the 9/20 advertisement, but rather, that the 9/20

advertisement, through its formatting and pictorial representation, implies that The New

York Times made the statement, "Issa [g]amed the system to line his own pockets," and

that the 9/20 advertisement suggests that Applegate and his campaign are merely sharing

with viewers of the advertisement what The New York Times said. According to Issa,

"The joining of The New York Times masthead with fabricated quotes conveys a

publication by The New York Times that never occurred -- in other words, it's a lie." Issa

argues that "the mere omission of a set of quotation marks in a video presentation cannot

cure the otherwise misleading statements paired in the same frame as The New York

Times masthead," and that he therefore met his burden of proof to demonstrate that the

9/20 advertisement was "at least defamatory by implication."

In a case in which a plaintiff seeks to maintain an action for defamation by

implication, the plaintiff must demonstrate that (1) his or her interpretation of the

statement is reasonable; (2) the implication or implications to be drawn convey

defamatory facts, not opinions; (3) the challenged implications are not " 'substantially

true' "; and (4) the identified reasonable implications could also be reasonably deemed

defamatory. (Heller v. NBCUniversal, Inc. (C.D. Cal., June 29, 2016) 2016 U.S. District

LEXIS 193316, *9–10.) Thus, "a plaintiff may not construct an actionable statement by

reading whatever implication it wishes into the defendants' words" (Metabolife Int'l v.

Wornick (9th Cir. 2001) 264 F.3d 832, 839), and the implications drawn from the

statement must convey facts, not opinions: "[I]n reviewing a defamation claim, a court

20 must ask as a threshold matter whether a reasonable factfinder could conclude that the

contested statement implies an assertion of objective fact. If the answer is no, the claim

is foreclosed by the First Amendment." (Partington v. Bugliosi (9th Cir. 1995) 56 F.3d

1147, 1153, internal quotation marks omitted.) Further, a plaintiff must show that the

identified implications could be reasonably deemed defamatory—i.e., that it injures or

disparages the victim's reputation. (Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27,

[" 'Defamation is an invasion of the interest in reputation' "]; Truck Ins. Exchange v.

Bennett (1997) 53 Cal.App.4th 75, 85 ["[D]efamation invades the interest in personal or

professional reputation and good name"].)

Most significant here is the requirement that the challenged implications of fact

must not be "substantially true." (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,

697, italics added.) "[T]he law does not require [the defendant] to justify the literal truth

of every word of the allegedly defamatory content. . . . 'It is sufficient if the defendant

proves true the substance of the charge, irrespective of slight inaccuracy in the details,

"so long as the imputation is substantially true so as to justify the 'gist or sting' of the

remark." ' " (Ibid.) Thus, "the statement is not considered false unless it 'would have a

different effect on the mind of the reader from that which the pleaded truth would have

produced.' " (Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 516–517

(Masson).)

The United States Supreme court in Masson explained the common law principle

that inaccuracies alone do not render a statement false if there remains "substantial truth"

to what was said. (Masson, supra, 501 U.S. 496, 516.) The United States Supreme Court

21 concluded that, even when dealing with quotations, a minor alteration of the words does

not make the quotation "false" unless the alteration changes the meaning in a material

way. (Id. at p. 517.) In fact, even "deliberate alteration of the words uttered by a plaintiff

does not equate with knowledge of falsity . . . unless the alteration results in a material

change in the meaning conveyed by the statement." (Ibid., italics added.)

In applying these principles to Issa's contention that the 9/20 advertisement

suggested to viewers that The New York Times made the statement "Issa [g]amed the

system to line his own pockets," it is clear that the 9/20 advertisement did not actually

state that The New York Times made the challenged statements, nor did it use quotation

marks around the statement, which would indicate to a viewer that the statements were in

fact made by The New York Times. Rather, the 9/20 advertisement could be understood

to imply, through font style, formatting and the visual juxtaposition of the statements at

issue with The New York Times masthead placed over something made to look like a

newspaper article, that it was presenting a statement from an article published by The

New York Times. We must therefore determine whether the statement reasonably

implied by the 9/20 advertisement—i.e., that The New York Times said that Issa has

"[g]amed the system to line his own pockets"—is substantially true, even though both

parties agree that these particular words did not appear in the Article.

We conclude that the implied statement is substantially true, in that The New York

Times said something substantially similar to what the 9/20 advertisement implies it said.

As we have already indicated, the Article was titled "A Businessman in Congress Helps

His District and Himself," and begins by indicating that Issa had chosen not to avoid the

22 appearance of conflicts of interest, as most of his Congressional colleagues had done, and

instead appeared to be "alone in the hands-on role he has played in overseeing a

remarkable array of outside business interests since his election in 2000." The Article

specifically states that as Issa's "private wealth and public power have grown, so too has

the overlap between his private and business lives, with at least some of the

congressman's government action helping to make a rich man even richer." (Italics

added.) In addition, the Article states that, according to Issa's financial filings, his

"minimum wealth doubled in the last year, and he appears flush with cash." A political

opponent could fairly summarize the statements made by The New York Times as saying

that Issa has used his position in Washington to increase his wealth — i.e., that he has

"gamed" the system of government in such a way as to "line" his pockets with additional

wealth.

The " 'substance, the gist, the sting' " (Masson, supra, 501 U.S. at p. 517) of the

9/20 advertisement⸺ that Issa "gamed" the system to "line his own pockets," constitutes

a fair, if sharply worded, summary of the content of the Article published by the New

York Times. A political challenger must be afforded leeway to characterize the conduct

of his opponent, even if such characterization takes the most negative perspective, in

order to ensure "uninhibited, robust, and wide-open" debate on public issues (New York

Times, Co. v. Sullivan (1964) 376 U.S. 254, 270). Again, "[h]yperbole, distortion,

invective, and tirades" are "a part of American politics," and while providing protection

for such speech may allow "candidates and their supporters to express . . . the most vile

sentiments," it is nevertheless necessary in order to ensure the "opportunity to criticize

23 and comment upon government and the issues of the day." (Beilenson, supra, 44

Cal.App.4th at pp. 954–955.)

ii. The statement "Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to the many properties he owns"

We next address Issa's complaint that the statement in the 9/20 advertisement that

"Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to the many

properties he owns" is false. Issa's argument with respect to this statement is somewhat

ambiguous. He appears to contend that the statement "Rep. Issa has secured millions of

dollars in Congress earmarks for roadwork to the many properties he owns" is itself a

provably false statement of fact, and also that the 9/20 advertisement falsely implies that

The New York Times made this statement in the Article.

With respect to the contention that the statement "Rep. Issa has secured millions of

dollars in Congress earmarks for roadwork to the many properties he owns," we conclude

that this statement is not provably false. There is support for such a statement in the

Article on which the 9/20 advertisement is based. Indeed, the entire thrust of the Article

is that Issa has voted in favor of earmarks for infrastructure projects located within five

miles of numerous properties that he owns. The Article expressly states that "[Issa] has

secured millions of dollars in Congressional earmarks for road work and public works

projects that promise improved traffic and other benefits to the many commercial

24 properties he owns here north of San Diego." Thus, based on the evidence provided in

the Article, it is clear that the challenged statement is substantially true.10

With respect to any argument that the "statement" that Issa is challenging is the

implied assertion that The New York Times said that "Rep. Issa has secured millions of

dollars in Congress earmarks for roadwork to the many properties he owns," we also

conclude that falsity cannot be established because such an assertion is also

"substantially" true.

In the 9/20 advertisement, the words "Rep. Issa has secured millions of dollars in

Congress earmarks for roadwork to the many properties he owns" are visually depicted

under the statement "Issa Gamed the system to line his own pockets" in such a way as to

appear as if the statement could be a sub-headline to the Article. Like the statement

about Issa "[g]am[ing] the system," the parties agree that the Article does not include the

words "Rep. Issa has secured millions of dollars in Congress earmarks for roadwork to

the many properties he owns," verbatim, either as a headline or in the text of the Article.

However, as noted, we look to determine whether " 'the substance, the gist, the

sting, of the libelous charge [can] be justified.' " (Masson, supra, 501 U.S. at p. 517.)

Although the Article did not expressly state, "Rep. Issa has secured millions of dollars in

Congress earmarks for roadwork to the many properties he owns," if what the Article did

say about Issa is not materially different from the statement that the 9/20 advertisement

10 Again, other than the three minor factual corrections Issa sought from The New York Times mentioned above, Issa has not otherwise challenged the factual assertions in the Article. 25 implies, then Issa cannot demonstrate that the alleged implied quotation was "false" for

purposes of establishing a defamation claim. A review of the Article demonstrates that

the substance or gist of the Article supports the implied factual assertion, such that the

implied factual assertion rings "substantially true."

The Article stated that "[Issa] has secured millions of dollars in Congressional

earmarks for road work and public works projects that promise improved traffic and other

benefits to the many commercial properties he owns here north of San Diego."

Elsewhere, the Article explains: "The hard-hit San Diego area has also benefited from

federal money Mr. Issa brought through earmarks, which allow lawmakers to award

money for their own pet projects. Indeed, more than two dozen of Mr. Issa's properties

are within five miles of projects he has personally earmarked for road work, sanitation,

and other improvements . . . ." Although the Article did not use the specific words "Rep.

Issa has secured millions of dollars in Congress earmarks for roadwork to the many

properties he owns," the essence of a number of statements in the Article is that Issa

earmarked millions of dollars for road improvement projects that benefit, either directly

or indirectly, properties that he owns. Thus, the implied suggestion that the Article made

the statement "Rep. Issa has secured millions of dollars in Congress earmarks for

roadwork to the many properties he owns" fairly summarizes the " ' substance, the gist,

[and] the sting' " (Masson, supra, 501 U.S. at p. 517) of the charge against Issa made by

The New York Times in the Article.

26 iii. The statement that Issa "steered millions in taxpayer money to help properties he owned"

Issa further contends that the 9/20 advertisement falsely claims that he "steer[ed]

millions of dollars in taxpayer money to help his own properties." (Boldface and some

capitalization omitted.) He asserts that this statement is predicated on the Article, and

that the Article erred in alleging that Issa's "property at 2067 West Vista Way appreciated

60% after Issa secured 'the first of two earmarks for the two mile project.' " According to

Issa, "[t]his entire narrative [regarding the West Vista Way property] is false."

With respect to this statement, Issa does not separately argue on appeal that the

statement falsely suggests that it is a specific headline or quotation from Article itself, as

he does with respect to the previous statements. Instead, he appears to be arguing that

this statement is simply false, on its own—i.e., that he did not, as a matter of fact,

" 'steer[ ] millions in taxpayer money to help properties he owned.' "11 In support of this

contention, Issa offers evidence that certain claims in the Article regarding a particular

property referenced in the article, the 2067 West Vista Way property, were not true, and

that because those claims were not true, the 9/20 advertisement's statements based on that

claim are also not true.12

11 Although in the complaint Issa alleges that the words in this statement also "do not appear anywhere in the Article," Issa does not appear to contend on appeal that the 9/20 advertisement falsely implies that The New York Times made this statement. 12 For example, Issa asserts that The New York Times printed a correction to its original article, stating that Issa had paid more for the property than the Article stated, and thus, that the property had not appreciated 60% in value, as the original version of the Article had suggested. 27 As the trial court noted, Issa appears to premise his challenge to the truth of the

statement on facts in the Article that relate to a single property he owns—a building

located at 2067 West Vista Way. However, the Article used that particular property as an

exemplar of the type of properties that Issa owns and the type of earmarks on which he

has voted that would benefit his properties. The Article did not rely solely on Issa's vote

concerning one particular road widening project that could benefit the West Vista Way

property; rather, the Article referenced a number of properties that Issa owns that are

within five miles of infrastructure projects that he voted to fund. As we have already

noted, the Article expressly states that Issa "has secured millions of dollars in

Congressional earmarks for road work and public works projects that promise improved

traffic and other benefits to the many commercial properties he owns here north of San

Diego." (Italics added.) An analysis conducted by The New York times demonstrated

that "more than two dozen of Mr. Issa's properties are within five miles of projects he has

personally earmarked for road work, sanitation and other improvements." Clearly, the

Article was not relying solely on earmarks regarding the West Vista Way project for its

contentions regarding Issa's support of funding for infrastructure projects that would

benefit his properties. The fact that The New York Times's published corrections

regarding certain facts about the purchase price of the West Vista Way property vis-à-vis

the value of the property at the time of the Article's publication does not demonstrate that

the statement in the 9/20 advertisement regarding Issa "steering millions in taxpayer

money to help properties he owned" is not substantially true.

28 Issa has failed to make a prima facie showing of the falsity of the 9/20

advertisement. He therefore cannot demonstrate a probability of prevailing on his

defamation claims regarding the 9/20 advertisement.

b. The 10/4 advertisement

Issa contends that the 10/4 advertisement "uses misleading statements about Issa's

voting record, and a doctored quote in support of the false claim that Issa has opposed

supporting the victims, first responders, and heroes of the September 11, 2001 attack."

The 10/4 advertisement questions Issa's voting record regarding using additional federal

funds, beyond what had already been appropriated, to pay for healthcare for first

responders to the 9/11 attacks. As Issa complains, the narrator of the 10/4 advertisement

says at one point, "Issa said he'd done enough for something that was simply a plane

crash." However, as Issa points out, he "never said that he 'had done enough for

something that was simply a plane crash.' " He argues that with respect to his comments

on which the 10/4 advertisement relies, the Congressional Record demonstrates that what

he said was qualitatively different:

"Mr. Issa: Okay. Because, well, my question from the dais is purely a Federal one. We voted in the wake of 9/11 huge amounts of money to the city and the state of New York. We have spent, arguably, between $1-$2 trillion related to the post-9/11, if you include going to Afghanistan and so on.

"I have to ask why damages from a fire that had no dirty bomb in it-- it had no chemical munitions in it, it simply was an aircraft, residue of two aircraft, and residue of the materials used to build this building--why the firefighters who went there and everyone in the City of New York needs to come to the Federal Government for the dollars, versus, quite frankly, this being primarily a State consideration.

29 "You know, it is very simple: I can't vote for additional money for New York if I can't see why it would be appropriate to do this every single time a similar situation happens, which quite frankly includes any urban terrorist. It doesn't have to be somebody from Al Qaida. It can be somebody who decides that they don't like animal testing at one of our pharmaceutical facilities." (Italics added.)

Issa contends that the "difference between an 'aircraft' and a 'plane' crash is

substantial." According to Issa, the difference is "between whether a member of

Congress questioned whether federal or state funds should be used for 9/11 first

responders or whether that member of Congress minimized and belittled the 9/11

tragedy." Issa argues that the " 'gist' " of his statement in Congress was that he

questioned whether the federal government should provide further funding for the health

care costs of 9/11 victims and first responders, but that the " 'gist' of the 10/4

Advertisement is that Issa called the 9/11 attack simply a plane crash and rejected the

request for help by the victims and first responders."

Issa's summary of the 10/4 advertisement fails to consider the full context of the

10/4 advertisement in which the statement is placed.

In examining whether a statement is false and defamatory, we look to the totality

of the circumstances, which includes not only the words of the identified defamatory

statement, but the context in which the statement was made. (Overhill Farms, supra, 190

Cal.App.4th at p. 1261.) "[A] defamatory meaning must be found, if at all, in a reading

of the publication as a whole." (Kaelin v. Globe Communications Corp. (9th Cir. 1998)

162 F.3d 1036, 1040.) "Defamation actions cannot be based on snippets taken out of

context." (Ibid.)

30 In the 10/4 advertisement, a voiceover narrator, who is identified as a "9/11 First

Responder," says, ". . . Darrell Issa and the Tea Party Republicans tried to play politics

with our lives. The Tea Party Republicans actually voted to deny healthcare to 9/11 first

responders."13 The 10/4 advertisement then shows, in quotation marks, the statement,

" 'Simply a plane crash' " underneath the masthead of the New York Daily News and the

date April 3, 2008. While this image is on the screen, the narrator says, "Issa said he'd

done enough for something that was simply a plane crash." The narrator then says,

"Darrell Issa and the Tea Party Republicans turned their backs on all of us."

Issa complains that it is "undisputed that Congressman Issa never said that he'd

done enough for something that was simply a plane crash." That assertion appears to be

correct. The respondents note that the phrase "simply a plane crash" was a direct

quotation from a Daily News article published April 3, 2008, in which the Daily News

summarized Issa's remarks as conveying the message that he had done enough for

something that was " '[s]imply a plane crash.' " We agree with the respondents that the

visual depiction of the words " 'simply a plane crash,' " in quotation marks, could be

understood as depicting a statement made by the Daily News. However, the narrator of

the 10/4 advertisement also states "Issa said he'd done enough for something that was

simply a plane crash," arguably attributing to Issa the statement that 9/11 was "simply a

plane crash." In doing so, the 10/4 advertisement could be viewed as misquoting the

13 Issa does not contend in briefing on appeal that this portion of the 10/4 advertisement is false. 31 words that Issa actually said on the House floor to the effect that the 9/11 events involved

"simply . . . an aircraft." However, "[i]f an author alters a speaker's words but effects no

material change in meaning, including any meaning conveyed by the manner or fact of

expression, the speaker suffers no injury to reputation that is compensable as a

defamation." (Masson, supra, 501 U.S. at p. 516.) Considered in the context in which

the statement was made, we cannot conclude that the suggestion that Issa uttered the

words " 'simply a plane crash' " conveys a meaning that is materially different from the

actual words he uttered, which included the comment that the 9/11 damages were caused

by something that "simply was an aircraft."

We disagree with Issa's contention that the attribution to Issa of the entire

statement—i.e., that he had "done enough for something that was simply a plane crash"—

materially altered the gist of the comments that Issa made on the House floor. If one

considered the narrator of the 10/4 advertisement to be stating his own personal

understanding of what Issa said on the House floor, rather than suggesting that he was

repeating verbatim what Issa had stated during his Congressional remarks, it would be

clear that the narrator's summary is a fair summary of Issa's comments. Indeed, the New

York Daily News article discussing Issa's remarks summarized those remarks in precisely

this way. Further, we cannot take the words "Issa said he'd done enough for something

that was simply a plane crash" out of the context of the entire advertisement, which Issa

acknowledges. Nevertheless, Issa contends that the " 'gist' " of the 10/4 advertisement is

that he "called the 9/11 attack simply a plane crash and rejected the request for help by

the victims and first responders." However, the charge of the 10/4 advertisement was

32 that Issa, together with other members of Congress, voted not to provide further federal

funds for health care for 9/11 first responders, and that Issa's reason for this was that the

federal government had, essentially, done enough with respect to paying for health care

for these individuals.

The 10/4 advertisement based this charge on comments that Issa made on the

House floor, in which Issa raised the fact that Congress had previously voted to provide

"huge amounts of money" to New York City and the state of New York, and that "[w]e

have spent, arguably, between $1-$2 trillion related to . . . post-9/11." Issa then said, "I

have to ask why damages from a fire that had no dirty bomb in it--it had no chemical

munitions in it, it simply was an aircraft, residue of two aircraft, and residue of the

materials used to build this building--why firefighters who went there and everyone in the

City of New York needs to come to the Federal Government for the dollars versus . . .

this being primarily a State consideration." Issa also compared the 9/11 attack to other

theoretical urban terrorist attacks, suggesting that it was no different from any other urban

terrorist attack. Thus, the "gist" of Issa's comments was that the federal government had

already paid a sufficient amount for health care for first responders for 9/11 because the

wreckage did not require clean-up from a chemical weapon or dirty bomb; rather, the

wreckage was, in Issa's estimation, not as complex to clean up as it would be in those

situations, given that it involved only downed aircraft and buildings.

Given the political context in which the statements in the 10/4 advertisement were

made, even if Issa did not say the words, "[I have] done enough for something that [is]

simply an airplane crash," his comments on the House floor could be fairly summarized

33 in this manner. A political opponent must be afforded sufficient latitude to summarize

his political adversary's comments in an unflattering light, in order to "ensure the

preservation of a citizen's right of free expression." (Beilenson, supra, 44 Cal.App.4th at

p. 955.) Given the latitude that must be afforded political speech, including the

protection afforded to "[h]yperbole, distortion, invective, and tirades" (id. at p. 954), we

conclude that Issa has not shown that the statement at issue so distorts what he actually

said as to render it provably false. Issa therefore cannot demonstrate a probability of

prevailing on his defamation claim regarding the 10/4 advertisement.

C. Evidentiary issues

Issa separately contends that the trial court erred in overruling his evidentiary

objections to the declarations submitted by Applegate and his campaign manager, Robert

Dempsey, and the supplemental declarations submitted by the two men.14 He also

challenges the trial court's sustaining of the respondents' objection to a single sentence in

the declaration of Gilliard, Issa's expert.

As Issa acknowledges, the Applegate and Dempsey declarations were submitted to

demonstrate that Issa could not show a probability of prevailing on the element of

"malice." Similarly, the sentence from the Gilliard declaration that Issa asserts the court

should have considered was submitted as evidence that the respondents had acted with

14 Issa objected to the initial declarations filed by Applegate and Dempsey. Respondents filed supplemental declarations by Applegate and Dempsey together with their reply brief on the anti-SLAPP motion. Issa objected to the supplemental declarations, as well. 34 malice in publishing the challenged advertisements.15 However, as we have already

determined, the trial court appropriately ruled that Issa has failed to demonstrate a

probability of prevailing on his claims against respondents because he cannot

demonstrate that the statements are not substantially true. As a result, we need not

consider the separate question of whether the respondents acted with malice, rendering

the trial court's evidentiary rulings regarding evidence submitted with respect to the

question of malice not necessary to our determination of the anti-SLAPP motion. In

essence, because we conclude that we may affirm the trial court's ruling on respondents'

anti-SLAPP motion on the ground that Issa cannot demonstrate a probability of

prevailing on his claims for libel because he cannot demonstrate that the respondents

published any provably false statements about him or that they published statements that

implied something not substantially true concerning him, we need not consider Issa's

arguments regarding the trial court's rulings with respect to the Applegate, Dempsey, and

Gilliard declarations.

15 The sentence from the Gilliard declaration that the trial court struck and did not consider after sustaining the respondents' objection was " 'Applegate and Dempsey certainly ignored evidence that would have undermined the allegations of both advertisements.' " 35 IV.

DISPOSITION

The judgment of the trial court is affirmed. The defendants are entitled to costs on

appeal.

AARON, J.

WE CONCUR:

HUFFMAN, Acting P. J.

NARES, J.

36 Exhibit A