Friday, December 30, 2005
Podiatrist’s Suit Against Newspaper, Giants’ Bonds Properly Dismissed as SLAPP — Appeals Court
By DAVID WATSON, Staff Writer
A podiatrist’s suit against the publisher of the San Francisco Chronicle, two of the newspaper’s reporters, San Francisco Giants outfielder Barry Bonds and former San Francisco 49er running back Roger Craig over an article in the Chronicle was properly stricken as a SLAPP suit, the First District Court of Appeal ruled yesterday.
The article accused Andrew L. Carver of exaggerating fleeting relationships with Bonds, Craig, the 49ers and other professional athletes and teams to promote his practice. It quoted Bonds as saying of Carver:
“I don’t like that man....He’s a liar.”
Craig told the newspaper he did not remember Carver, would have remembered Carver if there had been a professional relationship between them, and did not use orthotics prepared by Carver as the doctor had asserted.
Carver sued for defamation and interference with prospective economic advantage. San Francisco Superior Court Judge Ronald Quidachay granted the defendants’ motion to strike under Code of Civil Procedure Sec. 425.16.
Writing for Div. Four, San Francisco Superior Court Judge John E. Munter, sitting on assignment, said that while calling someone a liar “can convey a factual imputation of specific dishonest conduct capable of being proved false,” Bonds’ remark probably only expressed his opinion.
Citing Standing Committee v. Yagman (9th Cir. 1995) 55 F.3d 1430 and Copp v. Paxton (1996) 45 Cal.App.4th 829, Munter explained:
“[I]n the context of an outspoken athlete’s flippant remarks before a game about someone he dislikes, the word ‘liar’ would seem to be merely an expression of contempt...and the sort of ‘ “broad, unfocused and wholly subjective comment” ‘ that is generally regarded as protected opinion....”
In any case, Munter said, Carver failed to make a prima facie showing that Bonds’ description of him was inaccurate.
“Bonds has declared, and plaintiff has not denied, that plaintiff threatened to lie to the press about him, and reneged on an offer to supply him with free orthotics,” Munter wrote. “Bonds was justified in calling plaintiff a liar in view of those undisputed facts.”
The alleged threat, Bonds asserted, was made after the two got into a dispute about whether Bonds would endorse a line of scooters and electric bikes Carver was trying to market. Bonds said he refused Carver’s demand that he pay for scooters and bikes Carver loaned him, but which Bonds had returned.
Carver’s response, Bonds claimed, was to threaten to falsely tell reporters Bonds attended a party given by the doctor while high on marijuana.
Bonds acknowledged receiving orthotics from Carver, but said he never used them. The article claimed Carver had asserted the use of his orthotics contributed to Bonds’ record-breaking 73-home-run season in 2001.
As for Craig’s statements, they “did not convey provably false assertions of fact,” Munter reasoned. “[W]hether Craig remembered plaintiff, and would have remembered him if they had had a relationship, turned...on the strength of Craig’s memory of distant and isolated events, and on what he considered a ‘relationship’—entirely subjective matters rather than provably false factual assertions,” the judge wrote.
To prevail against the motion to strike, Munter said, Carver needed to show he was likely to prevail in the suit, since the publication of the article was “conduct in furtherance of the exercise of...[defendants’] constitutional right[s] of free speech” within the meaning of Sec. 425.16(e)(4).
The jurist rejected the newspaper’s contention that Carver was a limited purpose public figure. His activities promoting his medical practice did not put him in that category, Munter said.
But many of the assertions in the article were privileged because they were based on public records of an investigation of Carver conducted by the Board of Podiatric Medicine or on records of lawsuits filed against the doctor.
“Plaintiff has also failed to make a prima facie case that the article’s gist was not substantially true,” Munter declared. “It is undisputed that some patients and former colleagues got the impression that plaintiff had ongoing, extensive relationships with the 49ers, and it is not effectively disputed that he had essentially no connection with 49er players after 1989....Plaintiff does not deny the article’s report that he exaggerated his work with athletes when trying to land a position with the Sacramento Kings basketball team, a job that, in his words, would have given him a ‘a big, big marketing benefit.’ It is
undisputed that, as the article stated, plaintiff testified in an Arizona case that he was still receiving consulting calls from the Warriors basketball ‘team’ in 2001, when he had in fact not received a call from that team for many years.”
“The article went down a list of athletes plaintiff claimed as clients, who when contacted had nothing good, or nothing at all, to say about plaintiff; only one, Tim Hardaway, even confirmed that plaintiff had fitted him for orthotics. Plaintiff filed no testimonial from any athlete in opposition to the motion to strike, only a ledger of sums paid for orthotics. Given all of what plaintiff does not dispute or effectively controvert, it appears to be substantially true, on the record of this case, that he did in fact exaggerate his relationships with famous athletes to market his practice as the article charged.”
Justices Patricia Sepulveda and Maria P. Rivera concurred in the opinion authored by Munter.
The case is Carver v. Bonds, A108129.
Copyright 2005, Metropolitan News Company