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Court of Appeal:
Civil Code §47 Covers News Story on Unpublished Decision
Fifth District Rejects Contentions by Lawyer Who Alleges That Report on Opinion Affirming Imposition of DVRO
On Him Was Defamatory; Opinion Says Anti-SLAPP Motion Was Properly Granted but Attorney Fees Weren’t
By a MetNews Staff Writer
A news report on a decision of a court of appeal is not exempt from the privilege conferred by Civil Code §47 on the basis of that opinion not being certified for publication, the Fifth District has held, rejecting the contention of a lawyer that an anti-SLAPP motion was improperly granted in an action he brought based on an article appearing in the METNEWS’s online archive.
The report was published in the newspaper, itself, on March 11, 2020. However, it was the online version of it that drew a lawsuit by Jeffrey Olin, formerly a Long Beach attorney, now practicing in Pixley, an unincorporated community in Tulare County.
The article reported on a Court of Appeal decision by then-Justice (now Presiding Justice) Maria Stratton of this district’s Div. Eight in In re the Marriage of Olin. It told of the affirmance of a domestic violence restraining order (“DVRO”) obtained by Olin’s ex-wife, Kelly Olin.
Stratton’s Opinion
A temporary DVRO had included protection for Olin’s son. Stratton wrote that at a hearing on a permanent (five-year) DVRO, Los Angeles Superior Court Commissioner Glenda Veasey “found issuance of Kelly’s requested restraining order against Jeffrey both ‘necessary and appropriate’ ” and issued it.
Stratton did not mention that the five-year DVRO does not include the son. (That could only have been independently determined from a portion of the file that was under seal.)
Olin sued the Metropolitan News Company (“MNC”), which publishes the METNEWS; Grace Communications, Inc., its parent corporation; Editor/Co-Publisher Roger M. Grace; and Co-Publisher Jo-Ann W. Grace. He alleged defamation per se and false light.
The defendants filed an anti-SLAPP statute, pursuant to Code of Civil Procedure §425.16, which Tulare Superior Court Judge Nathan D. Ide granted, later awarding attorney fees as to representation by Roger Grace (an attorney) of the corporations. The Court of Appeal, in its unpublished opinion on Thursday, affirmed the order granting the anti-SLAPP motion but reversed the order awarding attorney fees.
Contention on Appeal
Olin contended on appeal that the report does not come under the first prong of the anti-SLAPP statute—that the action stems from the defendants’ protected speech—because, among other reasons, it is bereft of the protection of §47(d)(1) which renders privileged “a fair and true report in…a…judicial…proceeding, or…of anything said in the course thereof.”
The appellant pointed out that the opinion in Marriage of Olin “states in bold and all-capital letters at the top of the title page: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS,” adding:
“Again, on the final page of the lost appeal, above the names of the appellate justices: NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.”
He pointed out:
“California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.”
Olin argued:
“[I]t could not be clearer that the underlying appellate opinion was not supposed to be considered an officially reported judicial opinion to be relied upon by anyone other than the subject parties. It expressly stated so in bolded all-capitalized letters at both the beginning and end of the opinion. How is it both an officially reported judicial proceeding and an expressly non-officially reported judicial proceeding?”
Fifth District Opinion
Writing for the Fifth District, Rosendo Peńa Jr. said:
“We fail to appreciate Olin’s argument. The rule of court merely provides that other California courts and litigants in those courts may not cite or rely on the opinion. It has no effect on a news organization’s ability to report on matters adjudicated by way of an appellate opinion that is not published in the Official Reports. And Olin makes no attempt to explain his point in his opening brief….Olin has forfeited his argument concerning the publication status of the DVRO appellate opinion.
“Notwithstanding, we think it appropriate to point out (as defendants did) that opinions not slated for publication in the Official Reports are nonetheless published—both on the Judicial Council Web site… and on Westlaw and Lexis.”
He quoted the Third District Court of Appeal as observing in its 2009 opinion in People v. Williams:
“[D]epublished and unpublished decisions are now as readily available as published cases, thanks to the Internet and technologically savvy legal research programs.”
Supreme Court Opinion
Olin also argued that under the U.S. Supreme Court’s 1976 decision in Time, Inc. v. Firestone, the news report on Marriage of Olin did not relate to a public issue. He maintained:
“[T]he Firestone decision expressly refutes that all judicial proceedings should matter equally with regard to First Amendment protections for reporting. It expressly states that family matters like the instant matter should be given different consideration than other types of judicial proceedings.”
Peńa responded:
“First, we note that Time did not concern or address California’s anti-SLAPP statute or procedure or any similar statute or procedure. Second, Time’s discussion of whether the domestic relations matter was a public controversy and whether the ex-wife in Time was a public figure was in the context of whether Time magazine could be held liable for defamation without a showing of ‘actual malice.’…In the case before us, defendants have not, and do not, contend they cannot be held liable for alleged defamation on grounds Olin is unable to establish actual malice. Thus, the holding in Time is not applicable here.”
Second Prong
After finding that Olin’s action does stem from an exercise of protected speech, Peńa addressed the second prong of the anti-SLAPP statute: whether the plaintiff can show that the action has minimal merit.
Olin contended that the statement that his son was covered by the DVRO was a “fabrication” and falsely implies he is a child abuser, so that the article was not a “fair and true report” of Stratton’s opinion, and therefore not covered by §47.
He told of harm to himself as a result, asserting:
“Olin’s PTSD and Major Depressive Disorder have been triggered and influenced by this defamatory statement being published. His job prospects have been harmed. His ex-wife has indubitably misused it to further harm his relationship with his son (as Olin would show at trial). Olin has suffered greatly from the harm this defamatory statement has caused. He has wrongfully been branded a child abuser.”
In setting forth the background, Peńa quoted the “main part” of the article, as follows:
“Court of Appeal:
“DVRO Can Be Based on Yelp Review of Ex-Wife, Email
“Stratton’s Opinion Does Not Discuss Whether Order, Based on Communications, Is Prior Restraint Against Like Speech
“By a MetNews Staff Writer
“A Long Beach attorney who posted a denigrating review of his ex- wife on Yelp and sent an email threatening to bring various causes of action against her has failed to persuade the Court of Appeal for this district to lift an order that he not ‘harass’ his former spouse.
“The five-year domestic violence restraining order (‘DVRO’) against Jeffrey J. Olin, an associate in the law firm of Ford Walker Haggerty & Behar, was upheld in an opinion by Justice Maria Stratton of Div. Eight. The opinion, filed Monday, was not certified for publication.
“The opinion quotes Olin as insisting, in his email to his ex-wife, that he has ‘a First Amendment Right to publish the Truth,’ but does not discuss whether the ban on harassing her—which stems from the Yelp positing [sic] and the email—constitutes a prior restraint on communications of like nature.
Veasey’s Order
“The DVRO, issued by Los Angeles Superior Court Commissioner Glenda Veasey, also provides that Olin may not ‘attack, strike, threaten, assault..., hit, follow, stalk’ or ‘disturb the peace’ of the ex-wife or their 14-year-old son. It bars contacting his former spouse, Kelly Rene Olin, or the son, and requires that he stay at least 100 yards away from them.” [Hereafter, we refer to this paragraph as the “alleged defamatory statement.”]
“An Oct. 2, 2018 ‘review’ Jeffrey Olin posted on the Yelp page of his former wife’s employer, Surf Management Inc., (since removed) said: [allegations against Olin’s ex-spouse omitted.] [¶]…[¶]
Stratton’s Opinion
“Stratton wrote:
“ ‘Although Jeffrey may view his own behavior as “not vulgar”, we believe contacting his ex-spouse’s employer via email in the manner he did...and leaving reviews about his ex-spouse on her employer’s Yelp page in the manner he did...amounts to abuse, harassment, and intentional disturbing of Kelly’s peace, warranting the DVRO against him.
“ ‘’We further agree with the trial court’s decision to issue the DVRO for a period of five years; it is noteworthy Jeffrey maintains to this day he “was justified” in sending the October 18, 2018 email to Kelly and her employer.’ [1] ... [¶]…[¶]
“The case is In re the Marriage of Olin, B295416.”
Added Language
The opinion also quotes a preface to the article, as it appears online, added after Olin produced a copy of the sealed order with reference to his son crossed-out. It reads:
“The article below is a report on a Court of Appeal opinion affirming the imposition of a [DVRO] on attorney Jeffrey Olin. The article says, in part:
“ ‘The DVRO, issued by Los Angeles Superior Court Commissioner Glenda Veasey, also provides that Olin may not “attack, strike, threaten, assault, hit, follow, stalk” or “disturb the peace” of the ex-wife or their 14-year-old son. It bars contacting his former spouse, Kelly Rene Olin, or the son, and requires that he stay at least 100 yards away from them.’
“Those provisions are reported by Court of Appeal Justice Maria E. Stratton of this district’s Div. Eight in her March 9, 2020 opinion to have been included in a temporary DVRO, and she states that a permanent (five-year) order was later entered. Her opinion does not state that reference to the son was omitted from the permanent DVRO.
“Nearly a year after the article was published, Olin has protested that the article is libelous, declaring that the permanent DVRO protects only his ex-wife, not the son. This was not inferable from the opinion. Olin was afforded a chance to comment on the opinion before it was reported upon and he did not avail himself of that opportunity.
“The docket does not reflect a petition for rehearing.
“We trust Olin is now content in having it made known that the DVRO, in its final form, only applied to his ex-wife.
“The opinion can be found at https://www.courts.ca.gov/opinions/nonpub/B295416.DOC.”
Conducts Comparison
Peńa compared the content of the article with what is set forth in Stratton’s opinion. He wrote:
The DVRO appellate opinion recounts the following facts and allegations of fact by Olin and Kelly in the proceedings that led to the issuance of the permanent DVRO and that we consider relevant to the “gist or sting” of the DVRO appellate opinion: (1) Kelly filed the subject “DVRO request against [Olin], listing herself and [their son] as persons to be protected”; (2) Olin “‘dumped’ all of their minor child[’s]…belongings in front of [Kelly’s] garage door, in direct view of [the child’s] bedroom window”; (3) Kelly requested the family court commissioner to order (a) Olin “cannot ‘[h]arass, attack, strike, threaten, assault…, hit, follow, stalk, …disturb the peace’ of Kelly and [their son]’”; (b) Olin “cannot ‘[c]ontact [Kelly or [their son]], either directly or indirectly, in any way’; and (c) Olin “shall stay at least 100 yards away from Kelly and her home, place of work, and vehicle, and from [their son] and the school he attends”; (4) the family court commissioner issued a temporary DVRO against Olin “ordering him to stay ‘at least 100 yards away’ from Kelly…and from [their son] and the school he attends”; (5) Olin requested a DVRO against Kelly upon allegations which included (a) “‘[Kelly] caused my 12-year-old son to cheat on me with another father in secret (which is why it was “cheating”) for three months[,]’” (underscoring and boldface omitted); (b) “problems began…when [Olin] found that [his] son had been cheating on [him] for at least three months” (underscoring and boldface omitted) and his son “told [Olin] that his mother had told him to keep all knowledge of the man’s existence from [him] and that [his] son had willingly done so” (underscoring and boldface omitted); and (c) Kelly “had already demolished [his] fatherhood”; (6) “his son…‘no longer has a home’ with [Olin], so it made ‘no sense for [Olin] to have [his son’s] property’ at his house”; (7) during the course of proceedings but prior to Kelly filing her request for the subject DVRO, the family court commissioner noted Olin filed a document “‘indicating that he wants no visitation with the minor child and … that the child is a clear and present danger to his security and safety’” (italics added by the court in the DVRO appellate opinion); (8) the family court commissioner criticized Olin with the comment, “‘Your legal position—for example, you say that you’re angry with [Kelly], because you say that she has caused your 12-year-old child to cheat on you, because she has a gentleman in her life. [¶] And I don’t know what the relationship between the gentleman in her life and your son is, but a child can’t cheat on you. To state—as an attorney, to state that “she has caused my 12-year-old child to cheat on me,” and then to send letters and e–mail messages—page-and-a-half-long letters and e-mail messages, not only to her, but to the 12-year-old child, calling him a lying, deceitful—and telling the court that having contact with your 12-year-old child is a danger to you and your job, and therefore, you want no contact with your child ever again…”; and (9) the family court commissioner “found issuance of Kelly’s requested restraining order against [Olin] both ‘necessary and appropriate.’ The DVRO was effective for five years.”
The jurist declared:
“We have been unable to find any reference in the DVRO appellate opinion that would suggest the permanent DVRO differed from the temporary DVRO that issued except as to their duration. Importantly, Olin does not reference any statement in the DVRO appellate opinion to suggest otherwise. The opinion noted Kelly requested the family court commissioner issue a DVRO that would protect both her and their son, that the commissioner found Kelly’s requested order “ both ‘necessary and appropriate,’” and that the DVRO was granted. Moreover, the tenor of the DVRO appellate opinion suggests Olin’s relationship with his son had deteriorated to a point where Olin expressed anger, resentment, and disapproval of his son, and of not wanting any visitation rights. Although the DVRO appellate opinion was obviously imprecise in its description of the permanent DVRO that issued, the facts recited in the opinion leave no room for an inference that the permanent DVRO did not protect Kelly and their son.”
Addressing Olin’s contention that he was falsely portrayed as a child-abuser, Peńa said:
“The facts and allegations of fact described in the DVRO appellate opinion—whether true or not—which, by all appearances, led to the issuance of the permanent DVRO might well lead a reader of the opinion to conclude Olin’s activity met this broad definition of ‘abuse.’ That MNC’s reporting (which made no express allegation of such conduct) might do the same is a natural, albeit regrettable, consequence of a fair and true report of the opinion.
“The DVRO appellate opinion was extremely critical of Olin and his stated position toward his son. MNC’s articles did not alter the gist or sting of the DVRO appellate opinion. We conclude, as a matter of law, MNC’s articles were a ‘fair and true report’ of the contents of the DVRO appellate opinion as that phrase is used in subdivision (d)(1) of Civil Code section 47, and we affirm the court’s order granting defendants’ special motion to strike under Code of Civil Procedure section 425.16.”
Attorney-Fee Order
Peńa said attorney fees were improperly awarded based on the rule that an attorney may not be awarded fees in connection with self-representation. He explained:
“Given the Grace defendants’ complete ownership and control of the corporate defendants, any judgment that might have issued against the corporate defendants would have been to the detriment of R. Grace and J. Grace. Under such circumstances, to allow the corporate defendants to obtain an attorney fee award simply because R. Grace and J. Grace do business under a wholly owned corporation would be to elevate form over substance.”
The opinion was modified late Thursday to specify:
“In the interests of justice, each party shall bear their own costs on appeal.”
The case is Olin v. Grace, F083969.
On March 10, 2022, Olin filed a Los Angeles Superior Court action against Veasey, the commissioner who presided over the proceedings in his dissolution of marriage case. He sued her, as an individual, claiming she has violated his civil rights.
The action is pending.
On appeal, Olin was in pro per. Roger M. Grace represented himself, his wife, and the corporate entities.
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