Metropolitan News-Enterprise


Thursday, May 11, 2023


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C.A. Scuttles Order Granting Waters’s Anti-SLAPP Motion

Wiley Says Congress Member’s 2020 Election Opponent Adduced Evidence Creating ‘a Possible Inference of Waters’s Willful Blindness’ to the Truth in Accusing Him of Having Dishonorable Discharge From Navy


By a MetNews Staff Writer


former candidate


member of Congress


A Los Angeles Superior Court judge erred in granting an anti-SLAPP motion brought by Rep. Maxine Waters, a South Bay Democrat, in response to a defamation suit filed by businessman Joe E. Collins III, her Republican rival in the Nov. 3, 2020 run-off for her congressional seat, the Court of Appeal for this district declared yesterday, holding that Collins made an ample showing of actual malice.

Waters repeatedly asserted during the course of the campaign that her challenger had been dishonorably discharged from the Navy.

Actual malice, also referred to as “constitutional malice”—knowledge of the falsity of a statement or reckless disregard of the truth—must be established in a defamation action against a public official, under the U.S. Supreme Court’s 1964 decision in New York Times v. Sullivan. As Justice John Shepard Wiley Jr. put it in yesterday’s opinion for Div. Eight:

“Blameworthy disregard for truth dissolves your constitutional shield.”

Los Angeles Superior Court Judge Yolanda Orozco, at a hearing on April 5, 2021, told Collins’s lawyer, Donna C. Bullock, that “[y]ou haven’t come close to proving” actual malice. She granted the anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, based on what she perceived to be a failure on Collins’s part to show a probability of prevailing on the merits, the statute’s second prong—the first prong, protected conduct, being conceded by the challenger.

Wiley’s Opinion

Wiley saw it differently. He wrote:

“In 2020, challenger Joe E. Collins III and incumbent Maxine Waters competed for a seat in Congress. During the campaign, Waters accused Collins of a dishonorable discharge from the Navy. Collins shot back that he had not been dishonorably discharged. He showed Waters a document saying so. This document apparently was official. There was nothing suspicious about its appearance. The document, if genuine, would have established without doubt that Waters’s charge was false. Waters easily could have checked its authenticity, but did not. Her appellate briefing asserts that today, years later, she still does not know the truth about whether Collins’s discharge was dishonorable.

“This disinterest in a conclusive and easily-available fact could suggest willful blindness.

“Collins sued Waters for defamation during the campaign, but Waters convinced the trial court to grant her special motion to strike his suit. We reverse that order.

“The preliminary posture of the case required the court to accept Collins’s evidence as true. His evidence created a possible inference of Waters’s willful blindness, which is probative of actual malice.”

Crossing the Line

Wiley went on to say:

“Free speech is vital in America, but truth has a place in the public square as well. Reckless disregard for the truth can create liability for defamation. When you face powerful documentary evidence your accusation is false, when checking is easy, and when you skip the checking but keep accusing, a jury could conclude you have crossed the line. It was error to end this suit at this early stage, for Collins established the minimal case needed to defeat Waters’s special motion to strike. Crediting his evidence, as is necessary in an anti-SLAPP analysis, Collins showed Waters had failed to take an easy and conclusive step to ascertain his discharge status. In the face of facially valid proof of error, this failure created a permissible inference of willful blindness. The trier of fact ultimately may draw other inferences more favorable to Waters and may reject Collins’s case lock, stock, and barrel. But Collins’s showing was enough to allow this litigation to go forward.”

The jurist added:

“As a matter of federal constitutional law, Collins’s discharge document put Waters on notice of a considerable risk that conclusive evidence wholly disproved her accusations. It would have been easy for Waters then to check, but Waters kept repeating the accusation without checking. A reasonable jury could conclude Waters’s lack of interest was studied: a purposeful effort to maintain plausible deniability. If a factfinder drew an inference of willful blindness, it would impeach Waters’s claim of subjective blamelessness. The answer to this question of credibility was for the fact finder to ascertain. The decision to grant the special motion to strike was error.”

Waters assertion that Collins had been dishonorably discharged stemmed from a gaffe by U.S. District Court Judge Michael Anello of the Southern District of California. He made reference in an order to Collins’s “dishonorable” discharge, later amending the opinion to remove the word, “dishonorable.”

Wiley’s opinion, aside from reversing Orozco’s order granting the anti-SLAPP motion, vacates her subsequent order granting Waters $53,590 in attorney fees and costs.

The case is Collins. v. Waters, 2023 S.O.S. 1401.

Bullock represented Collins on appeal. Gary S. Lincenberg and Thomas V. Reichert of Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg & Rhow acted for Waters.

Waters, 84, remains a member of Congress. She has served since 1991.

Collins ran unsuccessfully in the Nov. 8, 2022 election against U.S. Rep. Ted Lieu, a Democrat in a district that is primarily in the South Bay.


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