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Case Law - save on Lexis / WestLaw. Filed 4/20/05 Miles v. Sierra Club CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR MARY MILES, Plaintiff and Appellant, A101437 v. SIERRA CLUB et al., (San Francisco County Super. Ct. No. 311109) Defendants and Respondents. Consistent with a jury's special verdict, the trial court entered judgment for respondents Sierra Club, Ron Guenther and Roanne Withers on appellant Mary Miles's defamation action. Miles's motion for a new trial was denied. She appeals from the judgment1 and the order denying her motion for new trial on damages,2 1 Miles filed a timely notice of appeal from the October 24, 2002 judgment. She filed a timely notice of intent to move for new trial on November 8, 2002. (See Code Civ. Proc., § 659, subd. 2.) The trial court denied the motion for new trial by minute order on December 20, 2002--within the 60-day period for ruling on motions for new trial--but did not file its formal denial order until January 29, 2003, after the 60-day period had run. Miles's January 17, 2003 notice of appeal was filed within 30 days of the denial of the motion for new trial by operation of law. (See Code Civ. Proc., § 660.) Thus, the notice of appeal from the judgment is timely. (See Cal. Rules of Court, rules 2(a)(1), 3(a)(2).) 2 An order denying a motion for new trial is not independently appealable, but it may be reviewed on Miles's appeal from the judgment. (See Leaf v. City of San Mateo (1984) 150 Cal.App.3d 1184, 1187, fn. 2, disapproved on other grounds in Trope v. Katz (1995) 11 Cal.4th 274, 292; see Code Civ. Proc., § 904.1, subd. (a)(4) [order granting 1 contending that the trial court erred by concluding that she was a limited purpose public figure, thus requiring her to prove actual malice in order to recover damages. In the alternative, Miles contends that even if she was a limited purpose public figure, the special verdict question on actual malice was ambiguous about how jurors were to evaluate 24 allegedly false and defamatory statements. We affirm the judgment. I. FACTS A. The Parties Respondent Sierra Club is a national nonprofit public benefit corporation based in San Francisco. Its board of directors makes policy for its 750,000 members which Carl Pope--as its executive director--implements. The national organization is divided into regional chapters which may sometimes be further divided into groups.3 During the years relevant to the underlying lawsuit, the national organization required chapters to issue a newsletter and maintain certain records, but did not require groups to do so.4 The Redwood Chapter--serving Mendocino and Lake County members--is based in Santa Rosa. At all relevant times, the chapter--chaired by Marianne de Sobrino--was divided into several subgroups. One of them--the Mendocino/Lake Group--included members from both Mendocino and Lake counties.5 The group new trial is appealable].) In her appeal, Miles does not appear to raise any issues that specifically pertain to the trial court's denial of her motion for new trial, but she seeks a new trial on the issue of damages as a result of her challenge to the judgment. 3 In 2002, the Sierra Club had approximately 430 groups. 4 Since the filing of this action, the Sierra Club has established more rigorous minimum group standards. 5 By the time of trial in 2002, the Mendocino/Lake Group had been divided into two groups, one of which was the Mendocino Group with which Guenther remained affiliated. A separate Lake Group of about 300 members had been formed to represent inland area interests. 2 was based in Fort Bragg on the Mendocino coast, although some Sierra Club Mendocino/Lake Group members resided inland, closer to Ukiah. Respondents Ron Guenther and Roanne Withers lived in Fort Bragg and were local conservation activists of many years' standing. They were active in the local Sierra Club group. They were members of the Mendocino/Lake Group's executive committee, which governed how the group spent the $2,000 annual budget it received from the national organization. In the 1990's, Guenther chaired the group and Withers served as its secretary. The executive committee tended to be populated by older volunteers who served for many years. Their volunteer work protecting the environment was viewed as essential, but group recordkeeping was somewhat informal. On the personal side, Guenther and Withers shared a home and had a child. Guenther was in his early 60's, had long suffered from Parkinson's disease, and displayed some early signs of senile dementia. He had been working on environmental issues for 25 to 30 years. Since he had become disabled 20 years earlier, he worked as a Sierra Club volunteer. He served as a mentor to other local environmentalists. He was one of the most respected environmentalists in Mendocino County--an area characterized by one observer as a "hot bed of environmental activity and contention." His experience and the clout of the Sierra Club--a highly influential national environmental organization--made him an important ally for other local environmental groups. Local environmental groups cooperated with one another, often sharing information in order to achieve common goals. Withers was also connected to the local journalistic community. Beginning in the mid-1990's, she submitted occasional columns and articles for the Anderson Valley Advertiser, a weekly Mendocino County newspaper with a circulation of approximately 4,500. The paper--owned and published by Bruce Anderson--was published in Boonville. He paid Withers a nominal fee for her submissions. The publisher was a highly independent person who did much as he pleased, both in his 3 personal life and in the Anderson Valley Advertiser. At times relevant to the underlying action, he was also a member of the Sierra Club, heading two committees in the Mendocino/Lake Group. His brother Rob Anderson wrote a weekly column of commentary for the newspaper. Rob Anderson was a friend of appellant Mary Miles. Miles was a longtime contributor to the Anderson Valley Advertiser, which published her cartoons anonymously under the pseudonym "M." She drew these cartoons for at least 10 years, from 1986 until 1996. In 1992, she self-published a collection of cartoons that had been published in the Anderson Valley Advertiser. Consistent with the tone of the Anderson Valley Advertiser, her cartoons were highly critical of local and national figures. Miles expressed her displeasure with her targets in a pictorial manner that was often vivid and jarring. She characterized a Nobel Prize winner as a "butthole surfer"; depicted an environmental reporter for a rival newspaper as a drunken liar; and portrayed five justices of the United States Supreme Court as "straining penises." Her highly charged cartoons prompted much curiosity among the public about the identity of the cartoonist "M." Miles believed that few people other than Bruce Anderson--who signed a 1995 anonymity agreement to protect her identity--knew that she was the anonymous cartoonist. However, many people--including many of her targets--said that they knew that "M" was Miles. Bruce Anderson concluded that the secret identity of "M" was actually well known during the 10-year period that Miles submitted her cartoons for publication in his newspaper. Miles herself knew that Withers was aware that she was "M." Mary Miles was also a member of the Sierra Club. As a result of her Calpella residence near Ukiah, she was a member of the Mendocino/Lake Group. Her name was not on the local group roster that Guenther and Withers maintained, but the national office listed her as a Sierra Club member. Miles also belonged to a number of other environmental organizations. She volunteered for various environmental 4 organizations in the Mendocino area, sometimes offering public comments on environmental issues. B. The Mileck Dump Project In the spring of 1998, the Cole Creek Compost Facility--known colloquially as the Mileck dump--became a hotly contested local issue. In May 1998, the Mendocino County Board of Supervisors conducted a public hearing to consider whether to approve an environmental impact report (EIR) and permit the dump to continue operations. Earlier, the Mendocino Environmental Center and some neighbors had taken legal action in this matter. The EIR that was then under review was ordered to be prepared as a result of that lawsuit. Before the public hearing, Miles telephoned Withers several times about the EIR. These calls went on for hours, but Withers was used to receiving requests for advice in similar matters. Withers answered Miles's questions about the legal requirements of the EIR, but Miles did not seem happy with her answers. Withers tried to help, but considered Miles's apparent goal of shutting down a facility that had already been in operation for several years to be unreasonable. Miles also seemed to Withers to be unusually interested in minor matters at the expense of larger issues. During their calls, Miles had complained to Withers about other local environmentalists whom she claimed were corrupt and were conspiring to exclude her from whatever she wanted to be involved in. When Withers studied the county file on the project, she saw that the Mendocino Environmental Center and many individuals had commented on it. Withers went to a meeting of neighbors opposing the dump. At this meeting, she first met Miles. Withers noticed that the neighbors did not speak to Miles or acknowledge her. When she and Miles spoke in person, Withers felt uneasy when Miles stood too close to her. Withers felt intimidated when she stepped back a bit and Miles followed her. Her observations of Miles led her to conclude that the other woman only pretended to have environmental concerns, but that she was mostly concerned about the impact of the Mileck dump on the view from her property. 5 Miles appeared at the public hearing and spoke in opposition to the Mileck dump EIR. She gave her name as "Mary Goodwin." She submitted voluminous documents--perhaps a stack as much as two feet tall--into the record. Withers also attended the public hearing and participated in it. She did not oppose the project on behalf of the Sierra Club as Miles wanted her to do. However, some of Withers's comments prompted the county to adopt a mitigation monitoring plan. The outcome of the hearing did not satisfy Miles. Withers recommended two environmental lawyers to Miles who might handle a case related to this matter. After the hearing, Withers twice spoke with Miles by telephone. In the last telephone call, Miles became angry, screaming at her in a bizarre manner. This frightened Withers, who asked Miles not to call her again and hung up the telephone. Miles believed that Withers sabotaged her efforts on the Mileck dump issue. She told her friend Rob Anderson about the public hearing on the EIR. In July 1998, he wrote a column in the Anderson Valley Advertiser, asking what position the Sierra Club was taking on the Mileck dump controversy. In it, he suggested that the Sierra Club was not doing its job because it was a latecomer to the issue. He also reported that Miles felt sabotaged by Withers, and noted that Miles had been ejected from the neighborhood opposition group. Some viewed the article as highly critical of Withers. Withers found the column to be inaccurate and tiresome. Apparently, Bruce Anderson was also less than pleased with his brother's column, because he immediately invited Withers to respond to it. Her reply was published on July 22, 1998. In "Roanne Replies," Withers summarized her final telephone conversation with Miles, whom she characterized as "frightening." Some of the statements Withers made were complimentary to Miles, but other comments offended Miles. In addition to Withers's response, Bruce Anderson published his own criticism of Rob Anderson's earlier column. In it, he criticized Miles--in her "Mary Goodwin" alter ego--challenging her for telling "constant lies" about a Mendocino environmental lawyer who had been hired to represent a group of neighborhood 6 opponents to the Mileck dump. He also suggested in a sidebar article that Miles harbored personal hostility toward Withers and the Sierra Club. C. Miles's Complaints about Mendocino/Lake Group Within days of the July 1998 criticism of Mary Goodwin in the Anderson Valley Advertiser, Miles began to focus her attention on how the Mendocino/Lake Group was being run. The Mendocino/Lake Group did not have a nominating committee for all its elections, choosing to operate in a less formal manner. The group did not have a formal nominating committee because they never had enough people to serve on the nine-member executive committee. Instead, anyone who wanted to run could usually do so. Ballots for positions on the executive committee ballots were distributed by the chapter, which ran the group elections on a yearly basis. It may have been more consistent with Sierra Club policy for each local group to have a nominating committee to find persons willing to serve on the group's executive committee. It was unclear whether the Mendocino/Lake Group's less formal practice was permissible or improper under Sierra Club rules, according to Executive Director Carl Pope. If the practice was improper, it was an honest, technical error. As Miles later explained it, she wanted to get involved with the Mendocino/Lake Group of the Sierra Club, but was unable to find out where its meetings were held. Meeting notices were published in the chapter newsletter, the Redwood Needles, and in two Mendocino and Fort Bragg newspapers, but Miles did not find them. Frustrated, she decided to challenge the local group's manner of selecting nominees for its executive committee. She concluded that the elections for the executive committee were not democratically run, denying a person like herself an opportunity to attend meetings or participate in the group in a meaningful way. She sought to reform the group by forcing open nominations and elections to the executive committee, having open meetings, and doing proper record keeping. Miles tried to make changes in the Mendocino/Lake Group through the chapter. Two weeks after two local Sierra Club group members criticized her in 7 print, Miles wrote the first of a series of letters to the chair of the Redwood Chapter--who was Marianne de Sobrino--complaining about Mendocino/Lake Group practices. In her August 1, 1998 letter, she complained that she had never received a ballot for the Mendocino/Lake Group elections. She began to attend chapter meetings, taking voluminous notes but not actually participating in the discussion of any conservation issues. Miles also became concerned about whether the local group was sufficiently interested in issues of significance to more inland members such as she. The Mendocino/Lake Group's bylaws provided that the group was based in Ukiah, but its meetings were actually held in Fort Bragg. She believed that this made it difficult for inland resident Sierra Club members to attend a meeting held perhaps a two-hour drive away from Ukiah. As the group was based on the coast, she concluded that they focused almost exclusively on coastal issues. Miles contacted the Redwood Chapter to find out how to form an inland area group within the Mendocino/Lake area. She was advised to form a committee of members to demonstrate interest in a new group. She asked for the chapter's membership list to locate other inland area members who might be interested, but her request was refused.6 Miles concluded that she was being "stonewalled" by chapter officials who only pretended to be interested in her ideas while actually trying to make it impossible to achieve her goals. Miles contacted the chapter again, this time to see how a person could be nominated to serve on its Mendocino/Lake Group's executive committee. She later explained that this was a general inquiry--she did not seek nomination herself. Margaret Pennington--the chair of the chapter's nominations committee--told Miles that 10 percent of 10,000 local members could petition for her nomination. Again, 6 Pope later testified that the Sierra Club did not give out its mailing list, although certain people were entitled to mail items to the persons on their list at their own expense, through a mailing house. 8 Miles felt that her efforts were frustrated by her inability to obtain the local group membership list. Miles wrote to de Sobrino again on November 15, 1998, complaining that the Mendocino/Lake Group was not conducting proper elections. She asked that upcoming Mendocino/Lake Group executive committee's elections be called off. On November 25, 1998, de Sobrino acknowledged the lack of nominating process, but she declined to postpone the group's executive committee election. Instead, she opted to work with the existing executive committee to make the elections more democratic in the next election cycle. The group's executive committee election was conducted, with the same people being elected. One of de Sobrino's suggestions had been to consider forming an inland group, so Miles renewed her efforts on this front. She wrote again to Marianne de Sobrino, the Redwood Chapter chair. Pennington responded to this letter by telephone, again refusing to turn over the membership list. Miles asked for the zip codes of areas within the Mendocino/Lake Group where Sierra Club members lived who might be interested in participating in an inland area group. Miles later claimed that she sent this information along, but received no response. Miles sent a more formal complaint about the group's executive committee election to de Sobrino on December 21, 1998, following grievance procedures that she had obtained from the national organization.7 She asked that the group's recently elected executive committee be unseated and that the election be nullified.8 In this letter, she also complained to de Sobrino that Withers had libeled her in the Sierra Club's name when she wrote her July 22, 1998 "Roanne Replies" article in the Anderson Valley Advertiser. 7 The Mendocino/Lake Group's executive committee election was conducted by the Redwood Chapter. 8 Pope later opined that banning one or all of the group's executive committee members for lack of a formal nominating committee would be an inappropriate sanction for such an honest, technical error. 9 Over the course of five months, the local group only heard about Miles's efforts in informal communications from chapter sources. Miles had not sent copies of any of her chapter correspondence to the Mendocino/Lake Group. Withers and Guenther heard that she was trying to oust executive committee members, but did not take her concerns seriously. Toward the end of 1998, Guenther learned that Miles had contacted the Redwood Chapter and sought to have the group's executive committee removed from office. Guenther was concerned that if the dedicated volunteers of many years of experience in conservation were removed from the executive committee, there would be no governance of the group at all. About this time, de Sobrino contacted Guenther by email and asked him a series of questions based on those Miles had posed to her. Guenther explained the group's situation in a long letter. In her February 9, 19999 reply to Miles, de Sobrino again acknowledged certain issues with the group's practices, but advised her that the chapter would take no action on her complaint. She advised Miles how to take her complaint to the national organization, giving her specific instructions about how to file a written complaint. De Sobrino recommended that Miles substantiate any complaint she might make with minutes, bylaws, newsletters and other documents from the chapter and the group. Miles contacted a member of the national organization's committee on standing rules10 and bylaws. She was told what particular information to include in the complaint which was to be sent to her contact there. She consulted the state Corporations Code and the national organization's bylaws. She concluded that these sources required the Mendocino/Lake Group to announce meetings, hold regular meetings, conduct nominations in a certain manner, hold elections properly and keep 9 All subsequent date references are to the 1999 calendar year, unless otherwise indicated. 10 The Sierra Club's standing rules are resolutions of its board of directors governing the ongoing processes of the organization. 10 records. As a Sierra Club member, she concluded that she was entitled to see the group's records. On March 1, she wrote to Carl Pope, seeking the chapter's membership list and other documents. On March 10, Miles wrote her first letter directed to the Mendocino/Lake Group. Identifying herself as a Sierra Club member, Miles asked the chair for copies of all of the group's minutes, treasurer's reports and newsletters or other member communications made during the past 10 years. She asked for information about meeting times and locations, meeting announcements, and the names of all those present at each meeting held during that 10-year period. Finally, she sought a copy of the group's bylaws, including any amendments since 1987. Miles concluded her letter by stating that if she did not receive these items within 10 days, she would deem her request to be denied. She assumed that all of these records were readily available at the group's office.11 She intended to use this information to support her complaint to the national organization. They were documents she needed in order to follow the instructions that the national organization and the chapter had given her. However, she did not explain her purpose in her letter, which was little more than a list of the documents she sought. Guenther received Miles's letter. On March 16, he sent Miles a letter on Sierra Club letterhead formally denying her request. He explained that he found no national, chapter or group authority to support her request. He noted that the group he chaired was "small, under-staffed, and under-funded." On March 22, Miles formally appealed Guenther's decision by letter to Carl Pope at the national office. In her letter, she opined that chapter and group officials were deliberately obstructing her attempts to obtain information that she was legally entitled to receive. Pope concluded that under California law, Miles was entitled to see at least some of the documents she sought. Pope's goal was to protect the 11 In contrast, Pope doubted that local groups actually kept the sort of records that Miles wanted for the time period that her request specified. 11 confidentiality of the Sierra Club's mailing list. In order to do so, he would allow her to communicate with list members through a mailing house rather than handing the list over to her.12 He feared that if Miles was not allowed access to some of the information she sought to which he thought she was legally entitled, he might have to actually reveal the Sierra Club's mailing list to her, thus giving up valuable proprietary information. At his direction, Pope's assistant instructed Guenther to give Miles what she asked for. Guenther was told that he had two days--not 10-- within which to do so. D. Inquiries Leading to March 31 Letter After they received Miles's March 10 demand for group records, Guenther and Withers began taking her more seriously. Withers contacted other group members, many of whom were involved in other regional conservation groups. Several of them talked with Withers, who then passed the information about Miles along to Guenther. David and Ellen Drell13 of the Willits Environmental Center and Linda McClure of Ukiah's Mendocino Environmental Center reported having had similar difficulties with Miles in the past when Miles reviewed their group records. Withers also spoke with Bruce Anderson, her publisher at the Anderson Valley Advertiser and another Mendocino/Lake Group member--as well as a second local newspaper publisher. Mark Heimann--another writer for the Anderson Valley Advertiser and a friend of Miles--was also one of Withers's sources. She had gotten to know him when they wrote a series of arson articles together for the Anderson Valley Advertiser. She believed that Heimann knew Miles well, because he had told Withers that he was in business with Miles along with Sara Jacobelli--who later 12 Pope later testified that when Miles was offered this alternative, she was dissatisfied with it, insisting that she should have access to the actual mailing list. 13 Two witnesses testified that Miles believed that the Drells and others on their staff were "out to get her." David Drell testified that Miles held a similar view about those working at the Mendocino Environmental Center. He disputed the accusation Miles leveled against his organization. 12 married Heimann--and Bruce Anderson's brother Rob Anderson.14 Heimann told Withers that Miles had been institutionalized in the past and that she was on the verge of a serious breakdown again. Her friends were really worried about her, he told her. They were considering having her institutionalized again.15 Withers believed what Heimann told her. This information was consistent with her own sense--acquired during and after the Mileck dump hearing--that Miles was frightening. She felt that Miles was physically dangerous. The information Withers received from people she spoke with during this time confirmed her suspicions that Miles was paranoid. Withers and Guenther knew that Miles was the cartoonist "M" and that she sometimes used the name "Mary Goodwin." Her "M" cartoons were disturbing to them--they seemed violent and frightening--leading them to believe that Miles was dangerous. Guenther and Withers believed that Miles's demands were irrational and bizarre--that she asked for these documents to harass the local group and the national Sierra Club. Group members felt it would be difficult if not impossible to assemble all the requested records in the time allowed. Guenther was also rankled because Miles had not offered any reason why she wanted copies of these documents. He feared that giving Miles what she asked for would simply lead to more demands. In response to the instructions she and Guenther received from Pope, Withers drafted a complaint letter to Pope on Sierra Club letterhead. Guenther added an introductory paragraph, and--in his capacity as chair of the Mendocino/Lake Group--signed the letter. Guenther trusted the information that Withers had gathered about Miles. Withers was a very thorough person and an excellent source of good information, in Guenther's judgment. 14 Both Miles and Heimann denied having been in an ongoing business together. 15 When Heimann testified, he told the jury that she had told him this information. (See pt. II.F., post.) 13 In the letter, Guenther and Withers stated that they were unable to find Mary Miles's name in their group membership records. She had been invited to attend meetings, but had not done so.16 They had learned that Miles had made similar, disruptive efforts to obtain records from other regional environmental groups. Some of the people they spoke with at other regional groups concluded that Miles irrationally believed that they were out to get her. Some concluded that she had no real interest in conservation. The letter went on to characterize Miles's request for documents as harassment and complained about Pope's instructions to deliver copies of 10 years of records on short notice to someone who did not appear to be a Sierra Club member and who did not even explain why she wanted them. Guenther told Pope of his fear that the time required of group volunteers to gather scattered records and comply with Pope's instructions would prompt key group members to resign. His letter expressed the concern that Miles was paranoid, was on a fishing expedition, and was both frightening and dangerous. He recommended using caution when dealing with her. He suggested that Miles attend the May 1 group meeting, noting that a police officer might be present in case she became disruptive. On March 31, the letter was sent to Pope at the Sierra Club's national headquarters. In her capacity as group secretary, Withers sent copies of the letter to various group members who had talked with her about Miles, those whom Miles had identified to Withers as people she intended to investigate for corruption, and other Sierra Club chapter and group members. Many of these group members headed other regional conservation groups with which the Mendocino/Lake Group of the 16 Although Miles initially testified that no one had invited her to attend a Mendocino/Lake Group meeting, she later acknowledged that she had been informed of such a meeting but did not attend it. 14 Sierra Club cooperated. A copy of the letter was sent to Bruce Anderson of the Anderson Valley Advertiser17 and the editor of another local newspaper.18 She and Guenther later explained that they intended the letter as a protest against Pope's instructions and as a warning to other regional conservation groups about what Miles was doing. They viewed Miles's conduct as an issue of common concern in the local environmental community and thought everyone should be alerted about what Miles was planning to do. E. Aftermath of March 31 Letter Although Guenther and Withers did not find her name on their local roster, Pope advised them that the national office listed Miles as a Sierra Club member. On April 5, Pope sent Guenther and Withers a letter to this effect, again instructing them to produce the documents that Miles sought. In this letter, Pope offered to accept the documents at the national headquarters and allow Miles access to them there. Meanwhile, Withers had a brief conversation with Bruce Anderson about his receipt of the March 31 letter to Pope shortly after it went out. That letter prompted Bruce Anderson to write and publish his "Off the Top" column about it in the Anderson Valley Advertiser on April 7. In this column, he denounced Miles as a crazy person who was harassing hardworking, long-time volunteer leaders of the local Sierra Club group. He reported that Miles had been "tossed out" of the group opposing the Mileck dump project because its members did not want to listen to her "monologues on why she is right and everybody else is wrong." He questioned her reasons for seeking 10 years of Mendocino/Lake Group records, in part because he 17 The letter states that a copy of it was sent to Bruce Anderson as an "[i]nterested member" of the Mendocino/Lake Group. It also refers to him as the editor and publisher of the Anderson Valley Advertiser. 18 Withers testified that she did not know whether she actually mailed copies to all the persons listed at the end of the letter or whether anyone received the letters if she did mail them. Some of the several listed recipients actually received a copy of the letter and some did not. 15 reported that she was not a member of the Sierra Club and had never attended a meeting of the local group. He also reported that after Pope ordered the group to give her the documents she sought, Guenther challenged this order in a letter, prompting Pope to "back[] off." Finally, Bruce Anderson wrote that two older, long- time members of the group had quit rather than fight "nut cases" like Miles. Miles had not seen the March 31 letter, but she sensed that something was afoot when she read the column in the Anderson Valley Advertiser describing her request to the Sierra Club. The column shocked her. She wondered how the publisher had learned of her request to the Sierra Club, not knowing that the Anderson Valley Advertiser publisher was active in the local group. On April 8, Miles sent a letter to Pope, continuing to negotiate with him about how and when she would view the Mendocino/Lake Group documents that he had told her would be made available to her. For his part, Pope was unhappy that the fact of an internal conflict within the local Sierra Club group had been leaked to the press. On April 9, he mailed a letter to the editor of the Anderson Valley Advertiser, sending a copy to Miles. Pope concluded that Miles was a Sierra Club member and, as such, was entitled to access to group minutes. He also criticized the publisher for unfairly attacking Miles and for airing an internal Sierra Club matter in public. With Miles's copy of this letter, Pope also enclosed a letter to Miles, apologizing for the Sierra Club's "inadvertent role" in the April 7 attack published by the Anderson Valley Advertiser. He identified the publisher as a member of the Sierra Club who used group correspondence in an improper manner to form the basis of this attack. On April 12, Miles sent a letter to the Redwood Chapter, seeking copies of its financial records. Pope's letter to the editor appeared the next week in the April 14 edition of the Anderson Valley Advertiser. Another article critical of Miles was also published in response to his letter. On April 27, Miles went to Pope's office in San Francisco to obtain the promised records. Pope was not there, but she was given copies of 36 16 pages of minutes, correspondence and a copy of her complaint to de Sobrino. One letter in the file was Pope's April 5 letter to Guenther suggesting that the records Miles sought be sent to the national headquarters, where Sierra Club officials could take "security precautions." The file did not include a copy of the March 31 letter from Guenther to Pope, which he had received by then. Not all of the documents found in this file satisfied Miles. On April 28--the day after her visit to the Sierra Club headquarters--she sent a letter to Pope, setting May 8 as a deadline for full compliance with her demand for remaining documents. On May 3, Miles wrote yet another letter to Pope, complaining about the April 7 Anderson Valley Advertiser column. She believed that the Sierra Club was behind the attack. Miles demanded that Pope retract 25 specific statements contained in the April 7 newspaper column or in other documents in the files that she obtained from the national organization headquarters. Pope's May 4 reply noted that he had already sent a letter critical of the column to the Anderson Valley Advertiser, which had been published on April 14. He noted that most of the 25 statements that Miles cited came from the Anderson Valley Advertiser, not from him. He also stated that several of these statements had already been rebutted in his letter to the editor, were not directed toward her in particular, or were not defamatory to her. He disassociated himself from the newspaper and told Miles that he had no power to retract statements made in it. To the extent that anyone could find that they were directed at Miles, Pope retracted them, stating that he had no basis for concluding that she had done anything inappropriate, dangerous or annoying. On May 7, Pope sent another letter to Miles, explaining that the files she reviewed in his office may not have been all of the Sierra Club files that contained any reference to her. Miles sent another letter to the chapter on May 10, apparently continuing to pursue her appeal. On May 14, Miles first saw Guenther's March 31 letter to Pope. It came to her from an unidentified, anonymous person. She was shocked, outraged, hurt, and depressed when she read it. A friend noted that the letter implied that Miles was a 17 dangerous person who might have to be restrained by police. Miles felt that her reputation had been destroyed. She believed that she had been libeled by the letter, which had been distributed to several people, including Bruce Anderson. After she saw the March 31 letter, Miles abandoned efforts to pursue her appeal. By summer, she had been accepted into law school and had moved to San Francisco. Other events continued to unfold in the Mendocino and Lake County area. Mark Heimann had asked Withers to testify that Bruce Anderson had agreed to give him a bonus for the series of arson articles he had helped to write in the fall of 1997. Heimann and Jacobelli believed that Bruce Anderson owed them a $2,200 bonus for their part in the arson articles. When he refused to pay, they sued him in small claims court. Withers refused to testify, as she knew nothing of an offer of a bonus to Heimann. She suspected that there was no such offer, as she and Bruce Anderson did most of the work on the article. Withers later stated that Heimann interviewed a few people, but did no actual writing on the articles that had been published in the Anderson Valley Advertiser in January and February 1998. Over the course of several weeks, Heimann repeatedly pressured Withers to testify, without success. Ultimately, Heimann and Jacobelli lost their lawsuit. After the small claims dispute was resolved, Heimann threatened Bruce Anderson, leading a court to issue a temporary restraining order against him. This was not Heimann's first restraining order--several newspaper articles had been published about three or four restraining orders against Heimann stemming from domestic disputes. In one instance, Heimann had reportedly taken an axe to his former girlfriend's car. He carried a .38-caliber pistol that he strapped to his ankle, carried a gun in the glove box of his car, and claimed that he had filed off the weapon's serial numbers so that it could not be traced. On August 18, Withers wrote 18 an article for the Anderson Valley Advertiser about the incident, characterizing Heimann's request as an invitation to commit perjury.19 F. Lawsuit and Trial On March 29, 2000, Miles filed her original complaint in the underlying action. Five days later, she filed her first amended complaint for damages, alleging causes of action for defamation, intentional and negligent infliction of emotional distress, and willful misconduct. The Sierra Club and Ron Guenther were named as defendants. The complaint alleged that the March 31 letter contained false and libelous statements that were made with actual malice. Miles sought both compensatory and punitive damages. Sierra Club and Guenther answered the first amended complaint. Withers discussed Miles's lawsuit with Bruce Anderson very briefly after it was filed in March 2000. After Anderson was subpoenaed and deposed, the Anderson Valley Advertiser reported that Miles had filed her lawsuit. This report came on October 4, 2000--seven months after the lawsuit was first filed. Bruce Anderson titled his article "Crazy Mary versus Sierra Club." It detailed much of what he knew of Miles, including her business and certain incidents he had observed. Bruce Anderson characterized Miles as "a cunning nut." He implied that the Sierra Club was justified in its judgment that she was psychotic. In this report, he also printed the March 31 letter and disclosed Miles's identity as the cartoonist "M." This appears to be the first time that the full text of the March 31 letter was widely published. Guenther was shocked that Bruce Anderson published what he viewed as a private letter in the newspaper, but as it became a matter of public record after Miles filed her lawsuit, he supposed that Anderson had a right to publish it. Miles believed that the October 4, 2000 article was a republication of the Sierra Club's March 31 libel against her. She regarded the disclosure that she was 19 Heimann and Sara Jacobelli denied that Withers was asked to offer false testimony in their case. Heimann did not seek a retraction of the August 18 article. 19 the cartoonist "M" as a breach of Bruce Anderson's confidentiality agreement with her. In her view, many of the incidents referred to in the article were fictionalized or embellished. However, she did not ask Bruce Anderson to retract the statements made in this article, nor did she sue him or his newspaper for defamation. In October 2001, Miles filed a supplemental complaint, adding Roanne Withers as a defendant and alleging that Miles was defamed again when the Anderson Valley Advertiser published Guenther's March 31 letter in its report of her lawsuit. In November 2001, Withers answered the first amended complaint and all three defendants answered the allegations of the supplemental complaint. Before trial, Miles filed a discovery motion seeking records going back to 1989. The trial court ruled that her request for discovery was overbroad and burdensome. Accordingly, it sustained an objection to that request for production of documents. It also bifurcated the liability and punitive damages phases of the trial. The liability phase was tried in 2002 before a jury. Miles testified over the course of five days. She identified 24 statements that she found to be defamatory in Guenther's four-page letter. She depicted her actions toward the Sierra Club and the Mendocino/Lake Group as a benign attempt to introduce democratic reforms and to form an inland group that would be more responsive to inland area issues. She had not intended to make these concerns a public matter. Miles disputed specific statements in the March 31 letter. She had never been institutionalized or convicted of any crime. She had never been diagnosed as having a serious mental problem. She expressed bewilderment about why anyone would suggest that she was dangerous or annoying. She had done nothing more than request information that she had a right to have. Miles believed that Guenther and Withers intended to hurt her by the March 31 letter, which she believed was "filled with hate." She was also critical of the defense claim that Bruce Anderson was sent a copy of the March 31 letter because he was active in the Mendocino/Lake Group committee. She viewed the Anderson Valley Advertiser as an official communications arm of the Sierra Club. 20 Miles told the jury that no one had ever complained to Miles that her "M" cartoons were disturbing. She denied that she ever advocated violence, even in her cartoons. Her cartoons were aggressive or contemptuous of those persons-- including some judges--depicted in them, but were merely illustrations intended to accompany news articles. Many of these cartoons were admitted into evidence, over Miles's objections. At the time of trial, Miles was a student at Hastings College of the Law in San Francisco. She had hoped to be an environmental lawyer, but those hopes were dampened after the March 31 letter. She told the jury that one defense attorney-- himself a member and officer of the Sierra Club--was actively trying to damage her ability to obtain employment in this field of law.20 Guenther and Withers testified in their own defense, both denying that they felt any anger toward Miles. They regarded her request as a nonproductive distraction from their substantive environmental work. Miles's request posed a problem that Guenther had to solve. Withers simply wanted her to go away. The letter was intended to be a private communication. It summarized information that Withers collected from persons Guenther trusted--information that, at trial, Guenther continued to believe was accurate.21 20 The defense put on evidence suggesting that Miles's conduct--not theirs-- made it unlikely that she would find work as an environmental lawyer. A Sierra Club attorney responsible for hiring environmental lawyers testified that the organization was unlikely to work with an attorney who had caused problems within a chapter or a group or in another environmental group with which the club worked. Often, attorneys hired to assist the Sierra Club on local issues were recommended by members of a local group, who would be unlikely to recommend someone who had created difficulties within that group. Having looked at some of the cartoons that Miles--as "M"--drew about judges and court, he also had doubts about her degree of professionalism. In his judgment, she lacked the requisite respect for the court system. He concluded that it was unlikely that Miles would even be interviewed for a Sierra Club position. 21 A local environmental activist testified that the comments about Miles in the March 31 letter he received were "not inconsistent" with his own opinion that she was paranoid, which he based on his personal knowledge of her conduct. 21 Guenther and Withers believed that the group was a democratic one and denied trying to exclude people from the executive committee.22 Guenther had a long practice of mentoring others who wanted to join the work of protecting the environment. She felt that Miles's charge that the Mendocino/Lake Group had ignored inland issues was unfair, offering evidence of many inland issues that the group had worked on during a 10-year period. She also cited the joint efforts of the Mendocino/Lake Group with other local environmental groups other inland issues. Bruce Anderson was a key witness for the defense. He testified that he first met Miles in 1986, when she was introduced to him as a cartoonist. She told him that she had been a postal worker, but that she was "purged" from the postal service because of union organizing activity. She told him that she had filed a stress claim with the postal service. Miles was an unhappy person and a difficult employee, Bruce Anderson told the jury. Over a 10-year period, he listened to her complain often and at length about what he characterized as "the imagined slights" of others. She seemed to him to be obsessed, believing that other people had insulted or humiliated her. Miles became angry with him after a paragraph in one of her articles was reprinted out of order. She demanded that he reprint the article, but he refused to do so because he thought the mistake was a minor one that did not make the article incomprehensible. After this incident, Miles "faded away" from the Anderson Valley Advertiser. Bruce Anderson also knew Guenther. The two men first met in 1984. He viewed the functioning and effectiveness of conservation organizations such as the local Sierra Club group as newsworthy in the contentious North Coast area in which his newspaper circulated. In his view, if Guenther, Withers or other members of the executive committee of the Mendocino/Lake Group ceased doing environmental work in the area because of Miles's lawsuit, her lawsuit was newsworthy. He 22 Withers admitted that she once expressed her hope that Miles would not run for a seat on the executive committee of her group. 22 believed that the March 31 letter was newsworthy because a private letter--one that Anderson characterized as inoffensive and factual--had prompted a lawsuit requiring both a deposition and a trial. He offered similar opinions about the propriety of Miles's lawsuit in the article. Anderson testified that neither Guenther nor Withers asked him to print the March 31 letter or told him anything that he wrote in the October 2000 article. Guenther and Withers reiterated this in their own testimony. He observed that Miles never challenged him about the truth of any of the statements he made in his October 2000 article and disputed her trial testimony that some of the events reported in it were fabricated. Anderson also denied that he ever published articles at the request of the Sierra Club other than the April letter to the editor that Pope had sent criticizing his April 7 column. Miles offered the testimony of Heimann and Jacobelli in support of her defamation claim. They told the jury that Withers had asked them about Miles. Withers told them that Miles had been harassing her, Guenther and the Sierra Club. She wondered if Miles was really an environmentalist. Jacobelli and Heimann told Withers that Miles was an environmental activist who fought timber harvesting plans. Withers told them that Miles was stalking her and that she had heard that Miles was crazy. Withers had heard that Miles had been institutionalized for killing some people in Southern California, had escaped to the Mendocino County, and was living in the area under an assumed name. Withers said that she was not positive that the person she had heard about was Miles, but indicated that she was checking on this information. Jacobelli and Heimann denied being Withers's source for the information she told the jury that they gave her. Heimann testified that he did not think that any of the concerns that Withers expressed to him about Miles were valid. They denied telling Withers that Miles had no real interest in the environment. Heimann did not think Miles had a mental health problem. He thought she was a shy, nonviolent person. 23 G. Deliberations and Verdict At the close of evidence, Sierra Club moved for nonsuit on agency grounds. Guenther and Withers also moved for a directed verdict. Each of these motions was denied. Sierra Club twice moved for nonsuit on the issue of punitive damages, succeeding the second time. Of the 24 statements that Miles claimed were defamatory, the trial court instructed the jury that two of them were defamatory on their face, if untrue--those statements stating that Miles had been institutionalized and was paranoid. The trial court also ruled--as a matter of law--that Miles was a limited purpose public figure and that the case involved a matter of public concern. It based this ruling on the nature of the controversy at issue in the case and Miles's role in it. Thus, the trial court required Miles to prove by clear and convincing evidence that Guenther, Withers and the Sierra Club knew that the statements were false or published them with reckless disregard of whether or not it was false and defamatory. On September 18, 2002, the jury returned a special verdict, concluding that Guenther's letter contained false and defamatory statements about Miles, but concluding that she did not show by clear and convincing evidence that the defamation or defamations were knowingly false or made with reckless disregard of the truth. A jury poll revealed that nine of the 12 jurors concluded that Miles did not demonstrate clear and convincing evidence that the statement or statements were made with knowing falsity or reckless disregard for the truth. In October 2002, the trial court entered judgment on the special verdict, finding that the Sierra Club, Guenther and Withers were entitled to judgment and that Miles should take nothing from the defendants. Notice of entry of judgment was given on October 24, 2002. Miles filed a timely notice of intent to move for a new trial. At the close of a December 20, 2002 hearing, the trial court orally denied her motion for new trial. An order denying Miles's motion for new trial was filed on January 29, 2003. 24 II. LIMITED PURPOSE PUBLIC FIGURE A. Legal Standard Miles's main contention on appeal is that the trial court erred by finding that she was a limited purpose public figure. This conclusion required her to prove actual malice in order to recover damages for defamation--a burden of proof that she asserts was too high, given her view that she was merely a private figure.23 At trial, Miles repeatedly testified that she did not intend to inject herself into a public controversy such that she would become a limited purpose public figure. However, the trial court ruled as a matter of law that Miles was a limited purpose public figure for purposes of her defamation action. She objected to this ruling and formally challenged it in her motion for new trial, without success. In order to resolve the question that Miles poses on appeal, we must first ground ourselves in the law applicable to such defamation cases. The First Amendment to the United States Constitution guarantees that political debates on issues of public concern may be uninhibited, robust and wide open. As such, speech arising directly from political debates is entitled to greater constitutional protection than other types of speech. (Kaufman v. Fidelity Fed. Sav. & Loan Assn. (1983) 140 Cal.App.3d 913, 919; see Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 (Gertz).) Thus, the First Amendment imposes limits on a state's authority to award damages for defamation. It prohibits a public official from recovering damages in an action for defamation relating to his or her official conduct without proof that the allegedly false statement was made with actual malice. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280; Khawar v. 23 In support of this argument, Miles cites Finke v. Walt Disney Co. (2003) 110 Cal.App.4th 1210 in her November 7, 2003 opening brief. Five days after she filed this brief, the California Supreme Court granted review in this case. (S118936, review granted Nov. 12, 2003.) After the case settled, the California Supreme Court dismissed review. We may not cite or consider an opinion that has been superseded by a grant of review. (Cal. Rules of Court, rule 976(d)(1).) 25 Globe Internat., Inc. (1998) 19 Cal.4th 254, 262, cert. den. sub nom. Globe International, Inc. v. Khawar (1999) 526 U.S. 1114 (Khawar); Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1163.) In such a case, the plaintiff must prove actual malice by clear and convincing evidence. (Bose Corp. v. Consumers Union of U. S., Inc. (1984) 466 U. S. 485, 511, fn. 30; Khawar, supra, 19 Cal.4th at p. 275; Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252, cert. den. sub nom. Synanon Church v. Reader's Digest Assn., Inc. (1986) 478 U.S. 1009; Anderson v. Liberty Lobby (1986) 477 U.S. 242, 255-256; see Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1046.) The same rule applies to private plaintiffs who can be viewed as public figures. (Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 133-134, 155; Khawar, supra, 19 Cal.4th at pp. 262-263; Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1163.) Public figures fall into two categories. One is an all-purpose public figure who has achieved such pervasive power and influence that he or she becomes a public figure for all purposes and in all contexts. The second is the limited purpose public figure who voluntarily injects himself or herself or is drawn into a particular public controversy and thus becomes a public figure for a limited range of issues. (Gertz, supra, 418 U.S. at pp. 345, 351; Khawar, supra, 19 Cal.4th at p. 263; Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1163.) In either case, the public figure assumes "special prominence in the resolution of public questions." (Gertz, supra, 418 U.S. at p. 351; Khawar, supra, 19 Cal.4th at p. 263.) The United States Supreme Court requires actual malice in defamation actions brought by public officials and public figures for two reasons. First, these persons usually enjoy significantly greater media access, giving them a more effective means to defend their reputations against false statements than private individuals have. (Gertz, supra, 418 U.S. at p. 344; Khawar, supra, 19 Cal.4th at pp. 263, 265.) Second, public officials and public figures have voluntarily invited comment and criticism by injecting themselves into public controversy, thereby exposing 26 themselves to an increased risk of injury from defamatory falsehoods. (Gertz, supra, 418 U.S. at p. 345; Khawar, supra, 19 Cal.4th at pp. 263, 265.) The determination of whether the plaintiff is a limited purpose public figure-- and, if so, for what limited purpose--is often a close question that can only be resolved by considering the totality of the circumstances comprising each individual controversy. (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 255; Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1163.) At trial, the issue whether a plaintiff in a defamation action is a public figure is a question of law for the trial court to determine. (Khawar, supra, 19 Cal.4th at p. 264; Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252; Copp v. Paxton (1996) 45 Cal.App.4th 829, 845.) On appeal, we review the trial court's resolution of disputed factual questions bearing on its public figure determination for substantial evidence. The trial court's resolution of the legal issue of whether the plaintiff is a public figure is an issue on which we conduct an independent review. (Khawar, supra, 19 Cal.4th at p. 264; see Wolston v. Reader's Digest Assn., Inc. (1979) 443 U.S. 157, 166-168; Gertz, supra, 418 U.S. at p. 352.) We review the trial court's determination of related credibility issues based on the clearly erroneous standard. When we do so, we consider the whole record and examine the statements in issue and the circumstances under which they were made in order to determine whether they are of a character that the principles of the First Amendment protect. (Khawar, supra, 19 Cal.4th at p. 275; see Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657, 686.) There are three steps to the inquiry of whether a plaintiff is a limited purpose public figure. We must determine that there was a public controversy; that the plaintiff voluntarily played a significant role in that controversy; and that the defendant's allegedly defamatory statement pertained to the plaintiff's participation in the controversy. (Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1163; Copp v. Paxton, supra, 45 Cal.App.4th at p. 845; see Waldbaum v. Fairchild 27 Publications, Inc. (D.C. Cir. 1980) 627 F.2d 1287, 1296, cert. den. 449 U.S. 898 (Waldbaum).) B. Facts Bearing on Limited Purpose Public Figure Status The evidence at trial offered three strands of activity that could arguably support the trial court's finding that Miles was a limited purpose public figure--her public stand against the Mileck dump, her nine-month crusade against the Mendocino/Lake Group and its executive committee, and her "M" cartoons. On the Mileck dump issue, Miles--giving her name as Mary Goodwin, although the parties to this lawsuit all knew who she was--appeared at a public hearing to oppose the project. Despite the fact that she shared the outlook of an association of neighborhood opponents, they grew so frustrated with her that she was ejected from their group. She wrote an article about the issue, even though she later testified that she did not intend by these acts to inject herself into the Mileck dump issue as a public figure. Her criticism of Withers and the local Sierra Club group after the hearing inspired an Anderson Valley Advertiser column and a firestorm of rebuttal to it during July 1998. The newspaper went so far as to charge that Miles had a grudge against Withers and the Sierra Club. This was clearly a matter of much public interest and Miles--in her Mary Goodwin personae--was at the center of it, thrust there by her own actions. With regard to her request for Sierra Club information or her attempt to remove the Mendocino/Lake Group's executive committee, Miles did not regard this issue as newsworthy, either. Pope and Guenther did not regard her efforts to reform the group as a public matter, but Bruce Anderson made it clear that in his judgment as a local newspaper publisher, Miles's efforts to unseat leaders of the local Sierra Club group were, in fact, newsworthy. The record on appeal contains sufficient evidence to satisfy us of the newsworthiness of Miles's challenge to the local Sierra Club group leadership. We find it significant that Miles's interest in the internal workings of the Mendocino/Lake Group followed closely on the heels of published criticism of her 28 opinions about the Sierra Club's activities related to the Mileck dump project. Her first correspondence with the various subdivisions of the Sierra Club began within days of the Anderson Valley Advertiser's published accusation that she had a personal axe to grind with Withers and the Mendocino/Lake Group. Her challenge to the local group was ongoing, with a regular stream of correspondence and contact from August 1998 until May of the following year. Miles testified that she did not give any press interviews on her interest in the workings of the Sierra Club. However, this testimony ignores the obvious connection between the Mileck dump controversy that she instigated in the July 15, 1998 edition of the Anderson Valley Advertiser, the double-barreled response to her criticism that appeared in the July 22, 1998 newspaper, and her campaign against the Sierra Club beginning on August 1 of that year. There was ample evidence from which the trial court could reasonably infer that Miles instigated the July 1998 press coverage through her friend Rob Anderson, and that her 10-month crusade against the executive committee of the Mendocino/Lake Group was in retaliation for articles critical of her published views on the Mileck dump issue. Thus, we are satisfied that the Mileck dump and internal workings of the Sierra Club were connected issues for purposes of our limited purpose public figure status analysis.24 Miles's cartoons present a third possible strand of evidence that may be relevant to a limited purpose public figure finding. Guenther and Withers reasoned that by her cartoons, Miles injected herself into a public controversy. Miles rejected this argument as speculative. She cited her use of the pseudonym "M" in support of her claim that she had not injected herself into any public controversy by her drawings, but had striven to remain a private person despite their publication.25 24 Thus, we reject Miles's attempts to dismiss this link between the Mileck dump issue and her challenge to the local Sierra Club group's leadership. 25 Miles had argued against admission of her "M" cartoons into evidence, without success. She reasoned that the cartoons were irrelevant to any issue in the defamation action, including the issue of whether or not she was a public figure or a limited purpose 29 Miles's view that her cartoons do not bear on our limited purpose public figure analysis is predicated on her belief that very few people knew that she was "M." There was ample evidence at trial to find, to the contrary, that Miles was known as "M" by the time that the March 31 letter was published. Evidence was offered from several witnesses supporting the conclusion that it was well known by members of the local environmental community--including Guenther and Withers--that "M" was Miles. In the words of publisher Bruce Anderson, Miles's secret identity was "[n]o secret at all." If the record supports the implied factual finding that people knew that Miles was "M," then she cannot cloak herself in the protective garb of anonymity in order to have the March 31 letter judged as if it were written about a private individual rather than against the backdrop of the acts of one who had published ten years of illustrative criticism of local political and environmental actors. This raises another predicate factual issue--the nature of the "M" cartoons. Miles testified that no one had characterized these cartoons to her as disturbing and she denied that the illustrations advocated violence. By contrast, Guenther and Withers testified that they were disturbing, violent and frightening. Many of these cartoons were admitted into evidence, over Miles's objections. Only a cursory glance at a few of these cartoons is required before one may reasonably conclude-- despite Miles's protestations to the contrary--that some of them are quite disturbing. Miles argues that as she stopped publishing the cartoons long before the events that led to the March 31 letter, they were no longer probative on the issue of whether she was a limited purpose public figure. At trial, Bruce Anderson testified that the cartoons inspired intense interest among his readers. Again, the briefest review of those cartoons bears out this testimony. After a 10-year run, the last of these cartoons appears to have been published in 1996. This was only two years before the public figure. She reasoned instead that she was a private person, which she argued would make the defendants strictly liable for their defamatory statements. 30 Mileck dump issue brought Miles back onto the pages of the Anderson Valley Advertiser and only three years before the March 31 letter. The vividness of these cartoons, the intensity of local interest in them and the length of time during which they were published satisfies us that these drawings remained relevant to the issue of whether Miles was a limited purpose public figure for purposes of this defamation action. C. Application of Three-pronged Test Our first step is to determine whether Miles was involved in a public controversy. (Waldbaum, supra, 627 F.2d at p. 1296.) The United States Supreme Court has not specifically defined the meaning of the term "public controversy." However, the Court of Appeals for the District of Columbia has defined a "public controversy" as a dispute that has actually received public attention because the ramifications of the dispute will be felt by persons beyond the direct participants in it. (Ibid.) If an issue was the subject of public debate and had foreseeable, substantial ramifications for persons other than the participants, it constitutes a public controversy. (Id. at p. 1297.) California courts apply this definition. (Annette F. v. Sharon S., supra, 119 Cal.App.4th at p. 1164; see Copp v. Paxton, supra, 45 Cal.App.4th at pp. 845-846.) A public controversy is not simply a matter of general interest to the public, but is a real dispute that has actually received public attention. Its outcome must affect all or some of the general public by having appreciable consequences for nonparticipants. By contrast, concerns or disagreements that are essentially private do not become public controversies simply because they attract attention. (Time, Inc. v. Firestone (1976) 424 U.S. 448, 454-455; Waldbaum, supra, 627 F.2d at p. 1296 & fn. 23.) The public airing of the dispute must arise before the allegedly defamatory statement was made. (See Waldbaum, supra, 627 F.2d at p. 1297; see also Hutchinson v. Proxmire (1979) 443 U.S. 111, 134-135.) In this matter, we define the public controversy as whether the Mendocino/Lake Group of the Sierra Club was performing as effectively as local 31 environmentalists would wish. Miles would have us view this as a purely internal Sierra Club matter. This ignores the evidence offered at trial that after the Mileck dump public hearing, a public controversy arose in the local community about whether the Sierra Club--most particularly, Withers--had failed to challenge this project as Miles believed that it should. Miles suggested in her criticism of Withers and the local Sierra Club group that leaders other than those on the executive committee would do a better job of using the clout of the Sierra Club to improve the local environment. In some communities, this might be a private dispute, but in the hotbed of environmentalism in which Miles and Withers operated, the issue became a public controversy. The record on appeal supports an inference that published accusations of Withers made in the summer of 1998 were the direct result of Miles's complaints to her friend Rob Anderson. His column denouncing Withers's efforts prompted, in turn, a pair of rebuttals in the Anderson Valley Advertiser--one from the newspaper's publisher and one from Withers herself. Stinging from criticism rebounding onto Miles after her own complaints were challenged, she retaliated against Withers with a 10-month campaign against the Mendocino/Lake Group's executive committee. Thus, the public controversy Miles created out of her dissatisfaction over Withers's efforts on the Mileck Dump project evolved into a campaign against the local Sierra Club group. The second step in the public controversy analysis is to consider the plaintiff's role in the public controversy. Trivial or tangential participation is not enough. The plaintiff must have " `thrust [himself or herself] to the forefront' " of a public controversy, becoming a factor in the ultimate resolution of it. (Waldbaum, supra, 627 F.2d at p. 1297; see Gertz, supra, 418 U.S. at p. 345.) He or she must have achieved special prominence in the debate about the public controversy. (Gertz, supra, 418 U.S. at p. 351; Waldbaum, supra, 627 F.2d at p. 1297.) The plaintiff either must have been intentionally trying to influence the outcome or could realistically have been expected--because of his or her position in the controversy-- 32 to have an impact on its resolution. In this analysis, the trial court considers the plaintiff's past conduct, the extent of press coverage, and the public reaction to his or her conduct and statements. (Waldbaum, supra, 627 F.2d at p. 1297.) By definition, a limited purpose public figure plays or attempts to play a major role in influencing one aspect of society. Courts must make a particularized inquiry into the circumstances of his or her case. If, in fact, he or she shapes or tries to shape the outcome of a specific public controversy, he or she is a public figure for that particular controversy. (Waldbaum, supra, 627 F.2d at p. 1298 fn. 32.) Those who attempt to affect the result of a particular controversy have assumed the risk that the press covering the controversy will critically examine him or her as a major participant. We must ask whether a reasonable person would have concluded that this individual would play or was seeking to play a major role in determining the outcome of the controversy and whether the alleged defamation was related to that controversy. (Id. at p. 1298.) Measured against this standard, there is no question that Miles had thrust herself into the public controversy over the effectiveness of the local Sierra Club group's environmental efforts. (See Waldbaum, supra, 627 F.2d at p. 1297; see also Gertz, supra, 418 U.S. at p. 345.) She prompted Rob Anderson to publish an article critical of those efforts, achieving a special prominence in the debate on this controversy. (See Gertz, supra, 418 U.S. at p. 351; Waldbaum, supra, 627 F.2d at p. 1297.) When her own criticism backfired into press accounts that were critical of her, Miles engaged in a 10-month crusade to unseat the executive committee, trying to influence the outcome of the controversy or to have an impact on its resolution. (See Waldbaum, supra, 627 F.2d at p. 1297.) We consider Miles's past conduct such as her "M" cartoons and her response to the Mileck dump project; the extent of press coverage, especially during July 1998; and the public reaction to her conduct and statements. (See, e.g., ibid.) All of these factors reinforce our conclusion that Miles's role in the public controversy was sufficient to warrant her limited purpose public figure status. 33 The third step in the limited purpose public figure analysis is to determine if the allegedly defamatory statement pertained to the plaintiff's participation in the controversy. His or her talents, education, experience, and motives could be relevant to the public's decision whether to listen to him or her. (Waldbaum, supra, 627 F.2d at p. 1298; see Copp v. Paxton, supra, 45 Cal.App.4th at p. 846.) On appeal, Miles contends that even if she became publicly associated with the Mileck dump project and the issues depicted in her "M" cartoons, she had not voluntarily injected herself into a public controversy that is germane to the defamatory statements in the March 31 letter. We find Miles's inquiry to be too narrow. The record satisfies us that fallout from the Mileck dump issue and Miles's subsequent challenge to the Mendocino/Lake Group's executive committee were intimately connected with each other. Thus viewed, the statements in the March 31 letter all pertained to the part Miles played in the ongoing controversy--begun in the aftermath of the criticism she received after the Mileck dump issue--of whether the executive committee of the Mendocino/Lake Group of the Sierra Club was effectively defending local environmental interests. These statements focused on her background and her motives, which the letter suggested were not trustworthy. As we find all three prongs of the test to be met, we conclude that the trial court properly found that Miles was a limited purpose public figure. As a limited purpose public figure, Miles was properly required to prove actual malice in order to recover damages for defamation. (New York Times Co. v. Sullivan, supra, 376 U.S. at pp. 279-280; Khawar, supra, 19 Cal.4th at pp. 262, 275.) Our conclusion is reinforced by the reasoning underlying the actual malice requirement. Miles's significant media access and her voluntary acts of injecting herself into the question of whether the local Sierra Club group was effectively run are evidence of her limited purpose public figure status. (See Gertz, supra, 418 U.S. at pp. 344-345; Khawar, supra, 19 Cal.4th at pp. 263, 265.) As she was properly determined to be a limited purpose public figure, the trial court did not err in requiring her to prove actual malice in order to recover damages in her action for defamation. 34 III. DETERMINATION OF ACTUAL MALICE A. Trial Court Proceedings Even if the trial court properly concluded that she was a limited purpose public figure, Miles contends that it also erred by requiring jurors to evaluate each of 24 allegedly false and defamatory statements for actual malice on a separate, statement- by-statement basis. She reasons that as long as nine jurors concluded that any one of the allegedly defamatory statements in the March 31 letter was made with actual malice, she may recover damages for defamation even if those jurors disagreed on which particular statement was maliciously made. Instead, she asserts, the special verdict form was ambiguous and the trial court failed to cure the ambiguity by instructing the jury that they need not agree on which of the defamatory statements in the March 31 letter were published with malice, as long as nine of them agreed that the respondents acted with malice. In the trial court, the jury was given a special verdict form to answer. It contained two questions pertinent to this appeal--first, whether the jurors believed that the March 31 letter contained false and defamatory statements about Miles, and second, whether, based on clear and convincing evidence, the jury concluded that the "defamation(s)" were knowingly false or made with reckless disregard for the truth. Miles had alleged that the March 31 letter contained as many as 24 false and defamatory statements. Two of these 24 statements were defamatory as a matter of law. The trial court instructed the jury that it had to determine whether these two statements were true or false. On the remaining 22 statements, the jury was instructed to determine whether each was both defamatory and false. If any statement was found to be both defamatory and false, the special verdict form instructed the jurors to reach the additional issue of actual malice. During deliberations, the jurors sought clarification from the trial court about how they were to consider the issues put to them. They wrote the judge and asked whether they were to come to a consensus on the 24 allegedly defamatory statements. After counsel met and drafted a response to this inquiry, the trial court instructed the 35 jury with the agreed-upon response. On the two statements that the jurors had been instructed were defamatory on their face, they were instructed that "[a]ny nine jurors must agree that a statement . . . is false." On the remaining 22 statements that were not defamatory as a matter of law, the trial court told the jury that "any nine jurors must agree that a statement . . . is defamatory and false." This written response was delivered to the jury. The jury then returned a special verdict against Miles, finding that false and defamatory statements were made, but finding no clear and convincing evidence of actual malice. When the jury was polled on the two specific questions it answered, they unanimously agreed that false and defamatory statements about Miles were contained in the March 31 letter. However, the jurors' response to the poll about actual malice was confused. One juror explained that the jury had considered whether 24 statements were maliciously made. The jury had arrived at different votes of nine or more jurors about different statements. The same nine or more jurors did not necessarily vote the same way on the actual malice question on each statement. Overall, nine or more jurors agreed that the evidence did not support a finding of malice by clear and convincing evidence. Outside the presence of the jury, the trial court and counsel conferred briefly off the record. Back in court with the jury, the trial court stated that the poll on actual malice was inconsistent with the special verdict the jury had submitted on this question. The jurors were specifically told that if nine or more jurors could agree on an answer to a question posed in the special verdict, that would be sufficient. The same nine or more jurors did not need to agree on each answer to each question. The trial court invited the jurors to submit written questions if this response was not clear. The jurors then retired to continue deliberations on question of actual malice. Minutes later, the jury returned with the same verdict--that false and defamatory statements had been made, but that Miles did not prove by clear and convincing evidence that they were made with malice. Again, the jurors were polled about their individual verdicts. Again, confusion arose about the accuracy of the poll 36 responses to the actual malice question. The trial court rephrased the poll question and this time, nine of the 12 jurors agreed that the special verdict response that Miles did not prove malice by clear and convincing evidence was his or her individual response. Miles's attorney asked the trial court to determine whether the jurors understood that all they had to do was find one of the 24 statements had been maliciously made. He stated that this inquiry was "consistent with our objections to the ambiguity of the [special verdict] form." The trial court declined to conduct further inquiry and discharged the jury. B. Invited Error On appeal, Miles complains that the special verdict form misled the jurors into thinking that they had to consider each of 24 statements on a statement-by-statement basis when asked to find whether the defendant published the statements with actual malice. She reasons that she should be entitled to recover damages for defamation if nine jurors believed that Sierra Club, Guenther and Withers acted with the requisite malice, even if those nine jurors were unable to agree which statement was made with malice. In so doing, she would have us extend a case applying to a civil suit for fraudulent misrepresentation to a defamation case. (See Stoner v. Williams (1996) 46 Cal.App.4th 986, 993-1004.) Before we may address the merits of this complicated question, we must first consider the preliminary question of whether Miles invited any error that may have been committed. Although she argues otherwise in her reply brief, Miles's contention in her opening brief specifically challenges the special verdict form. In her opening brief, she argues that the second question posed in the special verdict form--asking whether the "defamation(s)" were made with the requisite level of malice--erroneously suggested to the jury that it needed to find that each and every defamatory statement was made with malice. Even her complaint that the trial court failed to properly respond to the jury's questions about the form is, in essence, an assertion that the trial court had a duty to cure the ambiguity contained in the special 37 verdict form. Thus, we are satisfied that--regardless of how it is couched--Miles's claim of error pertains to the special verdict form. Miles did not bring this asserted ambiguity to the trial court's attention before the special verdict form went to the jury. Earlier versions of the special verdict form that Miles submitted for the court's use were no less ambiguous about whether nine of the jurors had to find all defamatory statements to be malicious or only one of them in order to find malice by clear and convincing evidence. The final form of the special verdict--the one that was submitted to the jury--bears the initials of both attorneys representing Miles at trial in this case. These initials indicate Miles's approval of the form of the special verdict. In the absence of a timely objection raised before the special verdict form is submitted to the jury, we presume that a party agreed to the form of the questions presented. A party may not complain of defects in a special verdict form for the first time on appeal, but has waived them by failing to raise them in the trial court. (See Myers Building Industries, Ltd. v. Interface Technology, Inc. (1993) 13 Cal.App.4th 949, 960 fn. 8 [special verdict]; Cembrook v. Sterling Drug Inc. (1964) 231 Cal.App.2d 52, 63.) A fortiori, when a party approved the special verdict form and her own proposed special verdict form contained the same ambiguity that she now claims misled the jury, we find that she is barred from raising this claim of error on appeal. Miles protests that her special verdict form was submitted after the trial court ruled against her on the substance of the form, over her objection. When a party submits a special verdict form in order to make the best of a bad situation, the invited error rule does not apply. (See Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212-213.) However, the dispute over the special verdict form was about whether Miles was a limited purpose public figure. The objection to an unrelated matter does not bear on the objection she now raises to the form of the second special verdict question. As such, we conclude that Miles cannot invoke that unrelated objection to avoid application of the invited error rule. 38 In order to prevail on the merits, Miles has to establish that the special verdict form was actually ambiguous, that it probably misled the jury, and that it was reasonably likely that she was prejudiced by it. (See, e.g., Byrum v. Brand (1990) 219 Cal.App.3d 926, 938-939.) Even assuming arguendo that we found that Miles proved each of these necessary elements of her claim of error, she invited that error by incorporating it into her own proposed special verdict forms. (See Mary M. v. City of Los Angeles, supra, 54 Cal.3d at p. 212; Myers Building Industries, Ltd. v. Interface Technology, Inc., supra, 13 Cal.App.4th at p. 960 fn. 8 [special verdict]; see also 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 384, pp. 435-436.) Thus, she waived this issue in the trial court. The judgment is affirmed. _________________________ Reardon, Acting P.J. We concur: _________________________ Sepulveda, J. _________________________ Rivera, J. 39 |
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