Metropolitan News-Enterprise


Monday, December 31, 2012


Page 1


C.A. Throws Out Conservator’s Suit Against Television Station


By JACKIE FUCHS, Staff Writer


A court-appointed conservator was a public official for purposes of defamation law, the Third District Court of Appeal ruled Friday.

A unanimous panel held that a local CBS television station had acted without actual malice when it aired a news report claiming that the conservator took over the life of an 86-year old woman without the woman’s knowledge.

The holding partially reversed the order of Yolo Superior Court Judge David W. Reed, who the panel said erred in ruling that the conservator was not a public official and did not need to prove actual malice.

 Carolyn Young is a professional conservator and fiduciary who has worked in the field for more than 20 years and had approximately100 conservator clients at the time of the station’s report.

In 2006 the court named Young temporary conservator for 86-year-old Mary Jane Mann, whom Sacramento County Adult Protective Services was seeking to protect from undue influence by one of Mann’s adult daughters, Carol Mann Kelly. APS claimed evidence that Mann suffered from memory impairment and that Kelly was attempting to take advantage of her mother financially.

A few months after Young was appointed, Mann, Kelly, and another of Mann’s daughters, Monika Mann, entered into a mediated agreement about how to protect Mann in the least restrictive manner, and in early 2007 the trial court dismissed the conservatorship.

A year later, Dave Clegern, a producer at KOVR-TV Channel 13 in Sacramento, interviewed Young about her role as Mann’s conservator. In trying to justify her actions to Clegern, Young inadvertently gave him a copy of the confidential report APS had prepared for the court, including copies of Mann’s medical records.

‘A Life Hijacked’

During a newscast a week or so later, KOVR aired a report about Mann’s conservatorship as part of its “Call Kurtis” series of investigative reports. The report, entitled “A Life Hijacked,” was written and produced by Clegern and reported by Kurtis Ming. It was also posted on KOVR’s website, where it remained for several days.

“A Life Hijacked” consisted of interviews with Mann and Kelly, as well as furtive slow motion shots of Young in a car or from behind, as if the camera were spying on her without her knowledge.

In the report, Mann more than once accused the people managing her conservatorship of stealing from her and threatening her, and Kelly claimed that Mann once called her and told her that someone had taken $30,000 out of her account.

Ming alleged that Young assumed control of Mann’s bank accounts, investments, and trust, and said that Mann found her mail routed to Young’s office and her driver’s license lifted. He quoted the confidential APS report and says the agency recommended Mann be conserved due in part to memory impairment, even though one of the doctors quoted in the APS report determined that Mann showed no signs “of significant neurodegenerative disorder,” and two subsequent exams had found her competent.

Ming concluded the segment by saying that although the conservatorship had ended the year before, Mann had been pressured into signing an agreement keeping Young on as a co-trustee of her estate, and that Mann had accused Young of taking $60,000 out of the trust without adequate accounting.

After the broadcast, Young’s attorneys asked KOVR to retract the report and remove it from its web site, but the request went unanswered. Subsequently, Young sued KOVR, claiming that 26 statements in the broadcast report defamed her.

CBS countered with an anti-SLAPP motion.

Claims Dismissed

Reed dismissed nine of Young’s claims, but found that she had introduced sufficient evidence on the other 17 claims to establish that she might ultimately prevail on the merits. He found Young was not a public figure for purposes of defamation, and that, therefore, she did not have to prove actual malice on the part of CBS.

The panel disagreed, saying that Young was a public official while serving in her role as a court-appointed conservator for purposes of defamation liability.

Justice George Nicholson, writing for the panel, said that Young exercised significant sovereign power in assuming control of Mann’s affairs. “It is only through the power of the state that a person such as a conservator can co-opt another person’s independent discretion and their liberty, and, in addition, force the affected person to pay for it,” he said.

Upon being appointed conservator, Nicholson said, Young became an agent of the state with power to interfere in the personal interests of a private citizen without that person’s consent. Such power is rightful subject to public scrutiny, he said, because of the government’s “strong interest in ensuring its power directly impacting the lives of so many individuals is not abused.”

Since there was no dispute that CBS had been exercising its free speech rights when it aired its report, the panel was left to determine whether Young had presented sufficient evidence that CBS had acted with actual malice in making the claims about her in its report to establish that she might be able to prevail eventually on the merits.

The panel found, however, that Young could not pass even this low threshold. Young’s claims that Clegern had acted recklessly held no merit, where he had interviewed Mann personally and “could assess for himself whether she was suffering from obvious memory impairment.” In addition, Mann’s medical records contained evidence that she did not suffer from cognitive impairment.

“With this conflicting picture of Mann, we cannot say Clegern’s reliance on Mann was reckless,” Nicholson wrote.

Young also claimed that CBS should have interviewed other persons with knowledge of the events. The court noted, however, that Clegern attempted to interview additional people, including Mann’s attorney, the only person who could verify whether Young failed to account for all Mann’s money or otherwise mismanaged Mann’s estate, and who refused to speak to Clegern.

Because there was insufficient evidence of actual malice, Young failed to demonstrate a likelihood of success on the merits, so Reed should have granted the anti-SLAPP motion in its entirety, Nicholson wrote.

Presiding Justice Vance Raye and Justice Louis Mauro concurred in the opinion.

The case is Young v. CBS Broadcasting, Inc., C064567.


Copyright 2012, Metropolitan News Company