Monday, December 5, 2016
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$50 Million Slander Action Was a SLAPP—C.A.
Man Who Was Married to Walt Disney’s Daughter Loses Bid for Resuscitation Of Action Based on a Statement He Committed Misconduct as a Trustee
By a MetNews Staff Writer
The Court of Appeal for this district on Friday affirmed the granting of an anti-SLAPP motion which terminated a $50 million slander action by a man who was once married to Walt Disney’s daughter.
The plaintiff, William S. Lund, had been married to Sharon Disney Lund from 1969 and until their divorce in 1977. She died in 1993.
William Lund became one of four trustees of trusts which Sharon Disney had set up for their three children. The other trustees learned that William Lind had bagged more than $3.5 million on Arizona real estate transactions related to the trusts’ investments, which they termed “secret personal profits” constituting a “kickback akin to a ‘finder’s fee,’ ” and on Oct. 20, 2009, filed a petition in Los Angeles Superior Court seeking his removal as a trustee.
A settlement was reached under which he would resign as a trustee and be paid $500,000 a year for the rest of his life “as extraordinary fees for past services.”
On Oct. 1, 2010, a reporter for the Arizona Republic asked two of the trustees, in a telephone interview:
“[W]hy do you want to destroy the Lunds?”
Attorney L. Andrew Gifford responded:
“…I would start by saying that we have—at least I have no desire to destroy the Lund family. And, two, that Bill was forced out of the trust by virtue of his own misconduct.”
It was based on that statement that William Lund brought his action against Gifford for libel.
Linfield Grants Motion
An anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, was granted by Los Angeles Superior Court Judge Michael P. Linfield.
One basis for such a motion is that the action relates to a statement relating to litigation. Writing for Div. Three, Justice Richard Aldrich said that Gifford’s statement to the reporter was “directly connected to a substantive issue in the underlying litigation.”
He found no merit in William Lund’s insistence that the provision of the anti-SLAPP statute cannot apply because the matter in litigation had been settled.
“But when Gifford spoke to the reporter,” Aldrich said, “the petition was still pending before the court; it had not been dismissed or withdrawn.”
He continued:
“As the trial court reasoned when ruling on the anti-SLAPP motion, there was no showing that the court hearing the petition was aware of the settlement when Gifford made the statement. Moreover, even if the court had been aware of the settlement, it could have refused to approve it. Even if the court was no longer tasked with resolving the question of whether Lund should be removed, the question of whether he had committed misconduct was likely still relevant to its approval of the settlement agreement.”
Aldrich said that in light of the legislative mandate to construe the anti-SLAPP statute broadly, “we do not believe the fact a settlement had been reached, but not approved by the court, removed the statement from the protection of section 425.16, subdivision (e)(2).”
Not ‘Commercial Speech’
The jurist also rejected William Lund’s contention that an exception in §425.17 for “commercial speech” applies. He said the evidence did not show that William Lind and Gifford were competitors in marketing their skills as trustees to the public.
Where the anti-SLAPP statute applies to speech, the burden shifts to the plaintiff to show a probability of prevailing. Gifford argued that the plaintiff cannot prevail because his action is time-barred.
Aldrich agreed, saying:
“The statute of limitations for slander is one year….Gifford’s declaration states he made the allegedly slanderous statement to reporter Anglen on October 1, 2010. Anglen’s article containing the statement at issue was published on October 8, 2010. It is thus undisputed that Gifford made the allegedly slanderous statement in early October 2010. Lund’s complaint for slander was filed on December 9, 2013, over three years later. Thus, on its face, Lund’s cause of action is time-barred.”
The plaintiff argued that there’s no time bar because Gifford’s statement was republished in a November, 2013 online article. Aldrich recited that a defamer may be held liable for subsequent publications of a statement only if those publications were foreseeable, commenting:
“In his declaration in support of the anti-SLAPP motion, Gifford declared that he had never met, spoken to, or communicated with the author of the 2013 article, Gardner; had never given the quote to anyone other than Anglen; and was unaware of any other publication of the quote. Lund offers no admissible evidence to the contrary. There is therefore no dispute that Gifford did not authorize or intend any republication of his quote.”
Sheppard Mullin Fees
Linfield made an award of attorney fees, as required by the anti-SLAPP statute, setting them at $66,627, for services provided by Sheppard, Mullin, Richter & Hampton. Aldrich found there was no abuse of discretion.
The case, which was not certified for publication, is Lund v. Gifford, B259366.
Lund was represented by James G. Bohm and Matthew Troncali of Bohm Wildish, and Sheppard Mullin attorneys Brian M. Daucher and Adrienne W. Lee acted for Gifford.
Copyright 2016, Metropolitan News Company