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									Filed 2/25/08 Spelling v. Sesions CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


CAROLE GENE SPELLING, as Executor,                                   B192406
etc.,
                                                                     (Los Angeles County
         Plaintiff and Appellant,                                    Super. Ct. No. BC343518)

         v.

DON D. SESSIONS et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County. William
J. Highberger, Judge. Affirmed.
         Greenberg Glusker Fields Claman & Machtinger, Robert S. Chapman and Aaron
J. Moss for Plaintiff and Appellant.
         Fredrickson, Mazeika & Grant, Timothy J. Grant and Michelle I. Morelli for
Defendants and Respondents.




                                          _______________________
       A woman leveled accusations of sexual harassment against her famous employer.
The famous employer asked for corroboration, and the woman‟s lawyer sent a sexual
harassment survey to 600 people who may have worked with that employer. The lawyer
also responded to press inquiries about the survey. When the famous employer sued the
woman‟s lawyer for defamation, the trial court granted the lawyer‟s special motion to
strike under Code of Civil Procedure section 425.16. We affirm because, as a public
figure, the famous employer did not establish a prima facie defamation case against the
lawyer.
                                             I
       Aaron Spelling, now deceased, was a well known producer. The Spelling brief in
this court said he “has long been considered an entertainment industry icon.” He
concededly is a public figure.
       In later life Spelling needed nursing care. His wife, appellant Carole Gene
Spelling (presented in the briefing as Candy Spelling), secured private nursing for his
around-the-clock care. In November 2004 Candy Spelling hired nurse Charlene
Richards. The Spellings had Richards sign a confidentiality agreement.
       Richards‟s work required her to stay in Aaron Spelling‟s bedroom overnight.
Richards claimed Spelling sexually harassed her while they were alone there. Richards
also said Spelling bragged about many past sexual relations with women actors seeking
work, and that Spelling said she was the one woman in his life who had ever told him no.
       Candy Spelling fired Richards on April 24, 2005 for breaching the confidentiality
agreement. According to Candy Spelling, Richards was disclosing private facts to others
about the Spellings‟ home life.
       Richards retained defendants and respondents Don Sessions and the law firm of
Sessions & Kimbal (collectively Sessions) to bring a sexual harassment lawsuit against
Aaron Spelling. Before filing Richards‟s lawsuit, Sessions sent a 39-page demand letter
to the Spellings‟ counsel on July 12, 2005. The lawyers for Richards and the Spellings
sent negotiation letters back and forth before filing anything with the courts. On
November 1, 2005, the Spellings‟ lawyer wrote Sessions that “your client‟s

                                             2
„corroborating‟ evidence neither corroborated her position nor reflected well on her
veracity. You told me that you could get additional corroborating evidence. I told you
that before my clients would participate in a mediation, we would need to see that
evidence and be given an opportunity to investigate it. . . . You told me that you would
obtain the additional evidence and get it to me. [¶] You and your client are, of course,
free to proceed with whatever steps you wish. However, if you are serious about wanting
to resolve this matter, get me the information that you promised, let me examine it, and
we can then schedule a mediation.”
       On November 7, 2005, Sessions replied, “We don‟t understand your client‟s
approach. You push us to find confirming witnesses.” On November 11, 2005, Sessions
complained Spelling had not responded to his request for “a very private and confidential
mediation” and that, “[a]t your insistence, and in preparation for the filing of the lawsuit,
we are proceeding ahead to contact other witnesses.”
       On November 11, 2005, Sessions sent a letter and survey to 600 actors. The 600
target actors were women, except for a man named “Chick.” These actors had received
acting credit on projects for which Aaron Spelling also had received credit. Sessions got
contact information about the actors‟ managers, agents, or publicists from the internet.
Sessions addressed each letter to the actor personally, with the heading “personal and
confidential.” The outside of the envelope directed, “to be opened by the addressee
only.” The list included actors who had not worked with a Spelling production for
decades.
       Sessions addressed the one-page cover letter to “Current or Former Employees of
Aaron Spelling.” The subject matter was “Survey on Sexual Harassment by Aaron
Spelling.” As Spelling recounts it in his opening brief, “[t]he Cover Letter described the
parallels between Richards and „the recent movie North Country‟ which „tells the true
story of the deplorable plight of women who first fought sexual harassment in the
workplace.‟” This letter continued: “[l]ikewise, we represent a former female employee
of Aaron Spelling who alleges that he sexually harassed her.” The letter recounted Aaron
Spelling‟s denial of this charge.

                                              3
       The letter added: “Attached is a survey tracking if you did, or even did not,
experience any sexual harassment by him in the past. We are sending this letter to
hundreds of current and former employees of Aaron Spelling or his companies. All we
seek is the truth. Please send it back to us.
       “Your input is important for many reasons: 1) Prevent harassment of other
victims. Confirmation by you of a similar experience will help prevent harassment in the
future. 2) Justice. He, if guilty, needs to be accountable for his actions despite his
wealth and power. 3) Help Mr. Spelling. Assist Mr. Spelling if you did not experience
such harassment. 4) Limit your involvement. Your input may help us get our matter
resolved privately now, without any public litigation.”
       On the second and final page, the survey listed three questions. The first was,
“Did you ever experience any sexual harassment by Aaron Spelling in his comments,
requests, actions, etc? If yes, please describe such improper words or actions.” The
second question asked, “Do you know if anyone else has experienced any sexual
harassment by Aaron Spelling? If yes, please describe such improper words or actions
and the victim‟s name if possible.” Question three was “Any suggestions or help you can
give us?”
       On December 5, 2005, a publication called Globe printed an article about the
survey called “Sex Scandal Rocks Hollywood.” The cover page of Globe had these
words: “TOP TV STARS CAUGHT UP IN SEX SCANDAL. Dozen of actresses to be
questioned.” To the right were three pictures, captioned “Heather Locklear,” “Teri
Hatcher,” and “Farah Fawcett.” In the middle of the cover page was a large picture of
Bill Clinton with the words: “CLINTON DRUG CRISIS. He‟s popping pills to battle
DEPRESSION.” The last words on the cover page were: “Brad & Angelina: It‟s falling
apart.” To the left was a smaller inset picture showing two people and the words,
“SHE‟S TOO BOSSY!”
       Sessions swore without contradiction that he did not provide his cover letter and
survey to any media outlet, including Globe. He likewise declared he did not direct or
intend that anyone would send this material to any media outlet, and that he did not

                                                4
initiate any contact with Globe or any other media outlets. Rather, Globe contacted
Sessions. “I told the reporter that my client‟s and my reasons for sending the letter and
survey were to find additional people who experienced or were witnesses to sexual
harassment by Mr. Spelling. I also informed them that we were attempting to resolve the
dispute between my client and the Spellings.”
       The two-page Globe story included the following statements. “One of
Hollywood‟s wealthiest and most powerful producers and a host of big-name beauties
who worked for him are tangled in a shocking sex scandal that has the showbiz world
reeling. . . .” “Attorney Don Sessions, who represents Spelling‟s accuser, has sent out a
shocking two-page letter that‟s turning up in the mailboxes of some of Hollywood‟s
biggest stars.” “GLOBE has obtained a copy of the two-page letter . . . , sent to an actress
who worked on one of Spelling‟s shows. . . .”
       The article showed a picture of Sessions‟s cover letter to the survey. Underneath
this picture was an enlarged quotation: “„We are hoping other witnesses who may have
suffered sexual harassment by Aaron Spelling will come forward.‟ [¶] – SAYS
ATTORNEY.” In context, readers would conclude “ATTORNEY” meant Sessions.
       The article also quoted Sessions by name: “We want to find additional people
who may have experienced or witnessed sexual harassment from Aaron Spelling. . . . If
guilty he needs to be held accountable, despite his wealth and power. . . . Sessions tells
GLOBE he is attempting to broker a deal with Spelling, who is worth an estimated $350
million and lives in a 56,000-square-foot home, the largest single-family residence in
California. [¶] „I am trying to reach some kind of settlement,‟ he says.”
       Globe quoted a Spelling spokesperson as saying, “[t]hese accusations are
absolutely false,” and “[w]e intend to sue her [Sessions‟s client] for defamation.”
       And sue they did. The Spellings sued both Richards and her lawyer Sessions,
based on the survey, cover letter, and Sessions‟s comments in Globe. Defamation was
the first cause of action. The Spellings‟ second cause of action was against Richards
alone and was for breach of contract, based on Richards‟s alleged disclosure of secret
information in breach of the confidentiality agreement.

                                             5
       Richards and Sessions responded by filing Richards‟s sexual harassment
complaint against the Spellings. They simultaneously filed a special motion to strike the
Spellings‟ lawsuit as strategic litigation against public policy – a so-called anti-SLAPP or
425.16 motion. (Code Civ. Proc., § 425.16; further statutory references are to the Code
of Civil Procedure.) The Spellings opposed Richards‟s 425.16 motion and filed
declarations by Candy Spelling, her assistants, a guard, a nurse, and by Spelling lawyers.
Each swore, in essence, that Richards‟s claims of sexual harassment were false and
unsubstantiated. Richards never complained of sexual harassment, they declared, and she
always seemed upbeat, never distraught or upset. Aaron Spelling also submitted a
declaration stating, “I have absolutely no recollection of engaging in any of the conduct
that [Charlene Richards] alleges.”
       On the first prong of the anti-SLAPP analysis, the Spellings conceded that
Richards‟s and Sessions‟s statements arose from constitutionally protected activity. On
the second prong of analysis, the trial court concluded the Spellings could not
demonstrate a probability of prevailing on their defamation claim. The court ruled the
litigation privilege protected Sessions‟s letter, survey, and comments quoted in Globe.
The trial court thus granted Sessions‟s 425.16 motion on the Spellings‟ defamation claim.
Conversely, the trial court denied the 425.16 motion on the Spellings‟ breach-of-contract
claim against Richards. The court awarded attorney‟s fees and costs against Aaron
Spelling and dismissed Sessions from the action.
       The trial court ruled on April 17, 2006. Aaron Spelling died on June 23, 2006.
Spellings‟ counsel filed a notice of appeal on the anti-SLAPP ruling. The probate court
appointed Candy Spelling executor of Aaron Spelling‟s will, and she substituted into this
appeal as the appellant. (We will refer to Aaron and Candy Spelling as “Spelling,” unless
the context shows a more particular meaning.) Richards and Spelling settled with each
other; Spelling dismissed Richards as a defendant and Richards dismissed her action
against the Spellings. Because Richards is out of the case, the only remaining issue on
appeal is whether the trial court was right to grant Sessions‟s 425.16 motion on Spelling‟s
defamation claim.

                                             6
                                             II
       Settled law governs this dispute. Section 425.16 sets out two steps of analysis.
First, the court decides whether the challenged cause of action arises from protected
activity. Spelling concedes this point. On the second step, the court was to determine
whether Spelling showed a probability of prevailing on the defamation claim. (E.g.,
Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.)
       In this second step of analysis, it was Spelling‟s burden to demonstrate a
probability of prevailing. To do so, Spelling had to state and to substantiate the elements
of defamation. Spelling thus had to produce a prima facie showing of facts sufficient to
sustain a favorable judgment if his evidence were credited. In deciding the question of
potential merit, the trial court was to consider the pleadings and evidentiary submissions
of both Sessions and Spelling. The court could not weigh the credibility or comparative
probative strength of competing evidence. The court was to grant Sessions‟s 425.16
motion if, as a matter of law, Sessions‟s evidence supporting the motion defeated
Spelling‟s attempt to establish evidentiary support for Spelling‟s defamation claim. In
short, the trial court‟s job was to evaluate the merits of the lawsuit using a summary-
judgment-like procedure at an early stage of the litigation. (See Taus v. Loftus (2007) 40
Cal.4th 683, 713-714.) Whether Spelling established a prima facie case is a question of
law. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.)
       The trial court found that Spelling could not make out a probability of succeeding
on defamation against Sessions. Spelling challenges this finding. Thus this appeal
concerns Spelling‟s ability to establish a probability of proving that Sessions defamed
him. We review de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.)
       The parties agree Aaron Spelling was a public figure, and special law governs
defamation cases in this situation. To prevail on a defamation claim, Spelling must prove
(1) that Sessions uttered statements that were false, and (2) that Sessions did so with
“actual malice.” (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 81.)
You speak with “actual malice” when you utter “a knowingly false statement” or when



                                             7
you have “serious doubts as to [the statement‟s] truth.” (Ibid.) A public figure plaintiff
must prove actual malice by clear and convincing evidence. (Ibid.)
       We apply these legal rules to the facts of this case.
                                              III
       The trial court correctly granted Sessions‟s 425.16 motion. The basis for its ruling
was the litigation privilege. There is a more prosaic basis for this result, and that is
Spelling‟s failure to offer a prima facie showing of a defamation case under the exacting
rules for public figures. We can affirm the trial court judgment on any basis that is
legally correct, whether or not the trial court adopted that rationale. Fully aware of this
rule, the parties on appeal have briefed the issue of whether Spelling showed his
defamation case had minimal merit.
       We affirm on two independent grounds: falsity and actual malice. Spelling failed
to establish a probability of showing Sessions‟s statements were false. Spelling also
failed to establish a probability that Sessions knew his statements were false, or at least
had serious doubts about their truth. For both reasons, Spelling failed to establish a
probability of prevailing on his defamation claim.
                                              A
       The first issue is whether Sessions spoke defamatory words that were false. To
analyze this issue, we take up each of Sessions‟s statements separately. There are three
groups of statements. The first is what Sessions said in his cover letter and survey. The
second is what Sessions said to the Globe reporter. The third topic stems from an English
professor‟s declaration. We take each in turn.
                                              1
       We begin with Sessions‟s cover letter and survey to the 600 actors. In essence
Sessions told these 600 actors that Aaron Spelling had sexually harassed Charlene
Richards. In the trial court, however, Spelling was unable to establish a probability of
proving this statement false. In summary, Richards swore Spelling had sexually harassed
her, and Spelling swore he did not recall. Spelling‟s failure of memory could not prove
Spelling did not harass. There were no other eyewitnesses. So there was only one

                                              8
witness claiming personal knowledge, which was Richards, who said Spelling did it.
Spelling did not deny it. Thus Spelling failed to produce a prima facie showing of facts
sufficient to sustain a favorable judgment if his evidence were credited.
       We now proceed in more detail. Sessions‟s central statement in his cover letter
and survey to the 600 actors was that “we represent a former female employee of Aaron
Spelling who alleges that he sexually harassed her.” (Italics added.) The defamatory
bite of this statement comes from the accusing implication that Aaron Spelling sexually
harassed Charlene Richards. That accusation is the core of this case. We analyze this
statement by summarizing the factual evidence before the trial court on the issue of
whether Spelling in fact sexually harassed Richards.
       Richards‟s declaration to the trial court swore Spelling had sexually harassed her.
She wrote that her job duties included “staying alone with Mr. Spelling in his bedroom
overnight.” Richards also wrote that her civil complaint detailed the harassment. That
complaint described a catalogue of harassment by Spelling: touching her genitals,
attempting to grab her breasts, exposing himself and masturbating in her presence,
soliciting oral sex, offering money for sex, kissing her and placing his tongue in her
mouth, attempting to hug her, and making sexual comments to her. This conduct was
“unwelcome and offensive” to Richards.
       In opposition, Spelling offered his own declaration. The relevant portion was two
sentences long: “I am aware of the allegations Charlene Richards has made against me
concerning sexual harassment. I have absolutely no recollection of engaging in any of
the conduct that she alleges.” (Italics added.)
       We “accept as true” (Soukup v. Hafif (2006) 39 Cal.4th 260, 291, quotation marks
and citation omitted) Spelling‟s claim he did not recall the many graphic sexual acts that
Richards swore he committed. This presumably true statement – “I have absolutely no
recollection” – did not contradict Richards‟s claim of harassment. The two declarations
are consistent. She said he did it. He said I absolutely don‟t recall.
       Spelling also submitted other declarations from other people: Spelling‟s wife, her
personal assistants, another private nurse for Aaron Spelling, a Spelling home security

                                              9
officer, and a Spelling attorney. These declarations suffer the same weakness: no
personal knowledge of how Aaron Spelling acted when alone with Charlene Richards.
These declarations thus cannot disprove Richards‟s allegations.
       Candy Spelling‟s declaration came the closest to some personal eyewitness
knowledge. Candy Spelling swore that, she “often” went in and out of her husband‟s
bedroom when Richards was working for the Spellings, including during early morning
hours around 2 or 3 o‟clock a.m. When Candy Spelling was in the bedroom, she never
saw anything inappropriate. We accept this declaration as true. This declaration did not
claim, however, that Candy Spelling was always or usually in the bedroom during the
five or six months Richards worked there. Because it appears Candy Spelling was not in
the room much of the time, this declaration does not contradict Richards‟s allegation of
sexual harassment. There is no necessary conflict between the declarations of Richards
and Candy Spelling.
       There are two other themes running through these declarations. First, Spelling
acted appropriately around me, swore these declarants. We fully credit this fact, but it
did not prove that Spelling acted the same way at a different time and when alone with a
different person. Not all harassers always harass, all the time.
       A second theme is that Richards never complained or appeared distressed but
rather seemed upbeat and positive. Spelling in effect urges an inference as a matter of
law that an upbeat, positive, and uncomplaining appearance around other people
disproves sexual harassment. We accept this testimony about Richards‟s conduct and
appearance as true. This testimony does not contradict Richards‟s allegations of sexual
harassment. A nurse might need her job and believe that complaining would imperil her
paycheck. Or she might think complaining about Spelling to the Spelling establishment
would be fruitless. Or a nurse might be embarrassed by harassment and respond with
denial. Or a professional might feel degraded to discover her status as sex object and yet
soldier on with professional pluck. Or she might have had all of these reactions at once.
These declarations do not disprove Richards‟s allegations.



                                             10
        The declaration of the Spelling‟s Executive Protection Agent adds a fact. This
Executive Protection Agent, named John Cassotta, declared he met Richards when he
worked in the Spelling house providing security services. He said Richards told him that
Aaron Spelling was “cute and harmless.” This was three or four weeks before Richards
stopped working for Spelling. Spelling offers this declaration to prove that Aaron
Spelling never sexually harassed Richards. We fully credit Cassotta‟s declaration that
Richards made this comment three or four weeks before her job ended. There is no doubt
Richards made this comment, but what it means is less clear. The comment would not
prove that there was no harassment in the weeks after the comment. More basically, the
comment itself is puzzling. Why would a nurse say a patient is “harmless?” Patients
rarely harm nurses. Logically, then, events must have triggered the nurse‟s use of this
unusual term. Cassotta‟s declaration gives no context to explain what prompted the
comment, which is open to array of interpretations. Fully accepting that Richards made
the “cute and harmless” comment to this Executive Protection Agent at the Spelling
house, this protean comment does not contradict Richards‟s claim of sexual harassment.
        Sessions‟s central statement was “Spelling sexually harassed Richards.” Spelling
failed to offer facts showing he had a probability of demonstrating this statement was
false. A defamation case based on this statement lacks minimal merit.
                                             2
        The Globe article attributed several statements to Sessions. We analyze each in
turn.
        Sessions‟s first sentence was “We want to find additional people who may have
experienced or witnessed sexual harassment from Aaron Spelling.” This statement was
true. Sessions indeed was hunting for leads about Richards‟s case, and Richards‟s case
was the claim that Spelling had sexually harassed her.
        Spelling focuses on the word “additional” in this first sentence: “We want to find
additional people who may have experienced or witnessed sexual harassment from Aaron
Spelling.” Spelling says this word implies to readers that Spelling had harassed at least
one person already, and readers thus would conclude “that Spelling actually harassed

                                            11
female employees with whom he worked.” This logic does violence to the article‟s
words, which clarify the proper implication flowing from the word “additional.” The
Globe article said “[a]ttorney Don Sessions, who represents Spelling‟s accuser,” was
claiming that Spelling had harassed Sessions‟s client. The article also reported that
“Spelling flatly denies any sexual harassment of the unnamed woman” and quoted his
representative as saying that “[t]hese accusations are absolutely false.” This article
makes clear that an accuser was accusing, Spelling was denying, and the accuser‟s lawyer
wanted “to find additional people who may have experienced or witnessed sexual
harassment from Aaron Spelling.” Sessions wanted to find people in addition to his
client who may have witnessed sexual harassment from Spelling. So this first sentence
does imply a statement by Sessions: my client is accusing Spelling of sexually harassing
her. Properly interpreted, then, this statement at worst boils down to the same one we
have just analyzed: Spelling harassed Richards. On this statement, Spelling properly
lost the 425.16 motion, as we have just decided.
       Sessions‟s second comment to Globe was, “If guilty he [Spelling] needs to be held
accountable, despite his wealth and power.” Sessions‟s second comment was a
conditional truism. Every person – if guilty – should be held accountable, despite wealth
and power. This egalitarian notion is a fundamental American ideal. We all hope it is
true. The issue with bite was whether Spelling was guilty of anything, or whether he was
the victim of a false accusation. But this returns us to the question of whether Spelling in
fact harassed Richards, and on that issue Spelling has failed to establish his probability of
prevailing.
       The final comment Globe attributed to Sessions was his statement that Sessions
was “trying to reach some kind of settlement.” This statement was true. Spelling does
not claim otherwise.
                                              3
       Spelling says the cover letter and survey made a further statement as well: that
Aaron Spelling sexually harassed his female employees as a matter of “habit.” Spelling
obtains this “habit” language from a university professor Spelling retained to help oppose

                                             12
Sessions‟s 425.16 motion. Spelling points to a single case holding that it was not an
abuse of discretion for a trial judge to permit an expert to testify to a jury about how
average viewers would be likely to understand a broadcast. (See Weller v. American
Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1007-1008, cf. Montandon v.
Triangle Publications, Inc. (1975) 45 Cal.App.3d 938, 944 [report of practice but no legal
holding].) The trial court did not rule on Sessions‟s objection to this professor‟s
declaration. We accept this declaration as part of the record but reject it as support for
Spelling‟s case. (See Cheviot Vista Homeowners Ass'n v. State Farm Fire & Cas. Co.
(2006) 143 Cal.App.4th 1486, 1500 fn. 9.)
       The trial judge declined to rely on this particular expert, and so do we. The meat
of his declaration is analysis of how ordinary readers would read a short document
written in English. The expert did not offer survey data, apart from a concluding mention
of a single response the professor says confirms his view. (The declaration omits the
content of other responses to the 600 questionnaires.) In short, the professor‟s
declaration is nine pages of partisan textual argument in favor of Spelling and nothing
more. Partisan argument is fine in litigation, but it belongs in the lawyers‟ briefs. It
should not be packaged as some sort of fact through the device of an expert witness.
       American judges are trained to interpret the meaning of English words. We hope
we are able to read and understand Sessions‟s cover letter and survey, which total two
pages. Respectfully, the words of these texts do not reasonably support the interpretation
that the professor urges: that Sessions said Spelling harassed female employees as a
matter of habit. As a matter of plain English, this interpretation is not valid. It is not
what Sessions wrote to his audience of 600. Spelling could not hold Sessions liable for
something Sessions did not say.
                                              B
       There is a second key hurdle to a public figure‟s defamation claim: “actual
malice.” To prove an accused defamer is liable, a public figure plaintiff must show the
defamer spoke with actual malice. Actual malice means the defamer knew the
defamatory statements were false, or else the defamer entertained serious doubts as to the

                                              13
statement‟s truth. Here Sessions swore without contradiction that he sincerely believed
Richards‟s claim of sexual harassment. Spelling was unable to establish a factual
probability of showing actual malice. For this second and independent reason, Spelling‟s
defamation case lacked minimal merit.
       Sessions swore he believed Spelling harassed Richards. He listed the reasons he
trusted Richards‟s account of the sexual harassment. Richards shared “very specific and
compelling facts” with Sessions. Sessions spoke to two other former Spelling nurses who
recounted sexual harassment by Spelling. All three women displayed “great emotion”
when recounting these experiences; Sessions judged their demeanor to be “sincere and
greatly distraught . . . .” “They were compelling and credible.” Richards sought
Sessions‟s legal advice before she was terminated. Sessions discovered other claims of
sex discrimination and harassment had been lodged against Spelling or his companies.
Sessions discovered a judgment in favor of a woman named Hunter Tylo in a sex
discrimination/pregnancy case against Spelling Entertainment Group, Inc. and Spelling
Television, Inc.
       In opposition, Spelling‟s sole evidence about Sessions‟s state of mind was
paragraph two of a declaration from Spelling‟s lawyer. The relevant portion of this
declaration stated Spelling‟s lawyer “told Mr. Sessions that his client‟s allegations
concerning Mr. and Mrs. Spelling were absolutely false. Mr. Sessions told me that he
would provide me with „corroborating‟ evidence to demonstrate that his client‟s claims
were true. After Mr. Sessions provided that evidence to me, he and I spoke again and
corresponded in writing. I told Mr. Sessions in our conversation that the witnesses did
not corroborate his client‟s story and, in fact, called into question her veracity.”
       Spelling‟s evidence shows his case lacked minimal merit. Sessions swore he
believed his client and gave many logical reasons why. Spelling‟s lawyer‟s response
was, “Don‟t believe her. Instead, believe me. I say it never happened.” Spelling‟s
lawyer did not lay out many logical reasons why his view was more reasonable.
Spelling‟s lawyer did not claim personal knowledge on the question of harassment. He
was not a witness. He was an advocate for Spelling and against Richards. In litigation,

                                              14
opposing counsel often have sharp differences about the facts. The conflict in
perspective is routine. The conflict commonly is profound yet sincere. That is often why
cases go to trial. Experienced litigators know these things well. Spelling‟s evidence did
not show a probability Spelling would be able to prove Sessions entertained serious
doubts about Richards‟s harassment claim.
       Spelling cites St. Amant v. Thompson (1968) 390 U.S. 727. The St. Amant case
supports Sessions, not Spelling. There the Supreme Court of the United States
overturned a defamation verdict because plaintiff Thompson failed to show speaker St.
Amant “in fact entertained serious doubts as to the truth of his publication.” (Id. at
p. 731.) There were three key people: victim Thompson, defamer St. Amant, and St.
Amant‟s informant, one Albin. Thompson said St. Amant defamed him by recklessly
repeating Albin‟s earlier accusations against Thompson. Spelling is Thompson‟s
counterpart, Sessions is like St. Amant, and Richards is in Albin‟s place.
       The results are the same in both cases: no defamation because neither St. Amant
nor Sessions spoke with actual malice. Spelling failed to show Sessions knew Richards
was an unreliable source of information; Spelling had no proof of “a low community
assessment of [Richards‟s] trustworthiness or unsatisfactory experience with [her] by
[Sessions].” (Id. at p. 733.) Neither did Spelling show that Richards‟s “story is
fabricated by [Sessions], is the product of his imagination, or is based wholly on an
unverified anonymous telephone call.” (Id. at p. 732.) Nor were Richards‟s allegations
“so inherently improbable that only a reckless man would have put them in circulation.”
(Ibid.) Nor did Spelling advance “obvious reasons to doubt the veracity of the informant
[Richards] or the accuracy of [her] reports.” (Ibid.) As in St. Amant, here the actual
malice requirement barred a public figure‟s defamation suit.
       Spelling makes three other arguments that warrant comment. Spelling says
Sessions had reason to doubt Richards because Sessions knew Spelling was elderly and
needed full time nursing care. Spelling was in his early 80s and needed full time nursing,
but beyond these points the factual record is largely silent about the state of Spelling‟s
abilities. Richards worked for Spelling from November 2004 to April 2005. The trial

                                             15
court heard the matter in April 2006, at which point Spelling was alive. Spelling cites to
no evidence before the trial court about the reason for and nature of the nursing;
Spelling‟s physical size and state; whether, when, and how he was disabled; his rate of
decline; and so forth. Some of the acts Richards alleged would have required a degree of
physical prowess. Some would not have. Spelling created no record on these issues. It
was his burden to do so.
       Second, Spelling argues that Sessions‟s decision to mail his cover letter and
survey to 600 actors proves Sessions had doubts about Richards‟s veracity. This is
incorrect. Trial lawyers know there is a world of difference between knowing something
is true and being able to prove it is true. Trial lawyers commonly would like to beef up
their case, especially when only two people witnessed key events. Case investigation
shows a desire to win. It does not prove the lawyer doubts his client.
       Finally, Spelling comments about other cases involving Spelling, including the
Hunter Tylo case. (An aspect of this litigation appears in Tylo v. Superior Court (1997)
55 Cal.App.4th 1379.) Spelling says this case and judgment was against Spelling
Entertainment Group, Inc. and Spelling Television, Inc. Spelling‟s point is that none of
these other cases was against Aaron Spelling personally. It is true that Sessions‟s
declaration claims the Tylo verdict was against both Spelling and his company. Sessions
erred on that point. As St. Amant explained, however, reckless conduct is not measured
by the standard of a reasonably prudent person. (St. Amant v. Thompson, supra, 390 U.S.
at p. 731.) A negligent error by Sessions did not show he knew “of the probable falsity of
[Richards‟s] statement . . . .” (Id. at pp. 732-733.)
       To establish a probability of success on his defamation case, Spelling had to make
a prima facie showing that Sessions at least had serious doubts about whether Richards
was believable. Sessions swore that he got the detailed story straight from Richards, that
her reporting timing was persuasive, that two other women told him similar stories, that
they were all convincingly emotional, distraught, and sincere, and that he believed them.
Spelling was not able to muster a factual showing that in any significant way contradicted



                                              16
this basic account of good faith. Spelling did not have a case on actual malice, and so did
not have a case on defamation.
                                             C
       In sum, the trial court correctly granted Sessions‟s 425.16 motion. Spelling‟s
defamation case lacked minimal merit. He did not show a probability that he could
establish two critical elements: that Sessions‟s statements were false, and that Sessions
spoke with actual malice.
                                            IV
       The trial court awarded Sessions costs and attorney fees as the prevailing
defendant on his anti-SLAPP motion. (§ 425.16, subd. (c).) An award of attorney fees to
the party bringing a successful special motion to strike under section 425.16 is
“mandatory.” (See Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Because we affirm
the court‟s 425.16 ruling, we must also affirm the fee and cost award. Code of Civil
Procedure section 425.16, subdivision (c) also entitles Sessions to recover his costs and
attorney fees on appeal. (City of Los Angeles v. Animal Defense League (2006) 135
Cal.App.4th 606, 627-628; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 927.)
                                             V
       The judgment is affirmed. Sessions is to recover his attorney fees and costs on
appeal in an amount to be determined by the trial court.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                                                           *
                                                               WILEY, J.
We concur:



              WOODS, Acting P.J.                               ZELON, J.


*
  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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