Burrill v. Nair CA3
217 Cal. App. 4th 357
| Cal. Ct. App. | 2013Background
- Underlying custody dispute between Nair and Bindu culminates in family court orders for joint custody with Suraj undergoing reunification therapy; Burrill was appointed reunification counselor/therapist and later testified in court; Burrill alleged Nair publicly defamed her online and on radio after the reunification report; Nair moved to strike under CCP § 425.16 (anti-SLAPP) and the trial court denied; Burrill opposed, submitting evidence of authorship, falsity, and malice; court reviews de novo and concludes Burrill has a probability of prevailing on defamation despite anti-SLAPP motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether anti-SLAPP applies and Burrill has probability to prevail | Burrill: Nair’s publications are defamatory per se and show actual malice | Nair: publications arise from protected activity; may strike | Burrill shows probability of prevailing; anti-SLAPP denied for this portion. |
| Whether Nair authored the online postings and radio statements | Burrill adduces expert/authorship evidence linking Nair to writings | Authorship disputed; denies writing postings | Court finds sufficient evidence Nair authored the statements; authorship established. |
| Whether the statements were false and defamatory per se | Statements falsely accuse extortion, illegal prescribing, perjury, etc. | Statements are opinion or true assertions | Statements defamatory per se; falsity shown by Burrill’s declarations and supporting evidence. |
| Whether there was actual malice by clear and convincing evidence | Nair acted with anger/hostility and fabricated allegations | Anger alone insufficient; no fabrication shown | Clear and convincing evidence of actual malice established. |
| Whether fair reporting privilege applies to the publications | Nair's statements not protected by fair reporting privilege | Radio and postings constitute report of official proceedings | Fair reporting privilege does not bar Burrill; not applicable to radio postings; not affirmed. |
Key Cases Cited
- Oasis West Realty, LLC v. Goldman, 51 Cal.4th 811 (Cal. 2011) (probability of prevailing on any part preserves action)
- Taus v. Loftus, 40 Cal.4th 683 (Cal. 2007) (two-step anti-SLAPP analysis; if protected activity, evaluate merits)
- Wallace v. McCubbin, 196 Cal.App.4th 1169 (Cal. App. 2011) (mixed claims and approach to anti-SLAPP review)
- In re Carver v. Bonds, 135 Cal.App.4th 328 (Cal. 2005) (distinction between protected opinion and false accusation of crime)
- Annette F. v. Sitem, 119 Cal.App.4th 1146 (Cal. 2004) (actual malice factors; motive and fabrication considerations)
- Ruiz v. Harbor View Community Assn., 134 Cal.App.4th 1456 (Cal. 2005) (statements of professional misconduct may be actionable; context matters)
- Rudnick v. McMillan, 25 Cal.App.4th 1183 (Cal. 1994) (limits on hyperbole and protected opinion in defamation)
- Balzaga v. Fox News Network, LLC, 173 Cal.App.4th 1325 (Cal. App. 2009) (fair reporting privilege scope for police investigations)