One Side of Campaign Mailer Might Be Libelous, C.A. Says
Partially Affirms, Partially Reverses Order Declaring Complaint to Be a SLAPP
By a MetNews Staff Writer
Above are both sides of a campaign mailer. The ‘Inexcusable” side, the Fifth District Court of Appeal has held, has a probability of being found to be libelous, declaring that allegations concerning that side should not have been stricken.
It’s not reasonable to suppose that a person viewing one side of a campaign mailer will necessarily understand that the allegations are limited to matters set forth on the other side, the Fifth District Court of Appeal has held, reversing an order granting an anti-SLAPP motion to the extent that it strikes allegations that the plaintiff was libeled by the insinuation he had committed moral offenses.
The decision—which comes in an unpublished opinion filed Tuesday—is a partial victory for Fresno City Council member Mike Karbassi in his action against Assemblymember Esmeralda Soria, whose district covers Fresno, Madera, and Merced counties. Karbassi came in fourth in the 2022 primary election for the seat.
One side of a mailer declares, “Mike Karbassi’s Actions Were Inexcusable.” That’s followed by three text-filled boxes reading: “Guilty of battery against a student,” “Arrested and cited for assault and battery of a 19-year-old female student,” and “ ‘Was I wrong? Yes, I touched her when she didn’t want to be touched.’ ”
Justice Mark W. Snauffer authored an unpublished opinion, filed Tuesday, which rejects Soria’s contention that the allegations of assaulting a female student must be understood to relate not to Karbassi, but to a consultant he hired, who is discussed on the other side of the mailer. That side bears the heading:
“Mike Karbassi Used Taxpayer Money to Pay a ‘Consultant’ Convicted of Assault on a 19-Year-0ld Female College Student.”
Contention in Brief
Soria contended in her appellate brief that Karbassi claims on “the reverse side of the Mailer” that the impression is created that “it was Karbassi who committed this crime,” scoffing:
“Karbassi’s claim is premised on the notion that the reverse side of the Mailer should be read in isolation or that a reasonable reader would have “no reason” to think that the headline of the Mailer, which clearly identifies who committed the crime, was even related to the images on the back. California law is clear that the Mailer must be read as a whole and an actionable defamation claim cannot be manufactured by taking a portion of a publication out of context.”
Snauffer noted although the mailer is printed on two sides, one side is not the front and the other side not the back. He referred in his opinion to the “Taxpayer” side an the “Inexcusable” side.
The jurist declared that Fresno Superior Court Judge Kimberly A. Gaab correctly struck allegations relating to the taxpayer side but not the other side.
Campaign mailers necessarily relate to protected conduct, he said, satisfying the first prong of the the anti-SLAPP statute, Code of Civil Procedure §425.16, leaving the question of whether Karbassi can show a probability of prevailing on the merits.
With respect to the allegations of misexpenditures of public funds, Snauffer said:
“Karbassi cannot succeed as a matter of law.”
“The gist here is that Karbassi uses taxpayer money to purchase items like food and wine. Those statements appear uncontested. The literal verbiage, that Karbassi ‘was…bilking Fresno taxpayers,’ is opinion and rhetoric, not fact.”
Hyperbole and invective are acceptable in political contexts, Snauffer said, setting forth that “fidelity to political discourse requires striking the public-funds statements from the complaint.”
He went on to say:
“Here, the mailer involves true facts concerning the consultant, but the Inexcusable side reasonably implies they relate to Karbassi. Indeed, the trial court’s ruling recognized ‘[i]t is clear that the side of the mailer with the photo of Karbassi intentionally seeks to make it appear like the allegations in the text boxes refer to Karbassi.’
“The trial court erred, in our view, when it proclaimed the Taxpayer side made clear the Inexcusable side, including the purported confession, referred exclusively to the consultant. Its finding that the criminal perpetrator’s identity was clarified represents a factual resolution it was not entitled to make at this stage.”
Snauffer added that “Karbassi’s showing demonstrates the necessary probability of proving actual malice.”
The case is Karbassi v. Soria, F085046.
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