Filed 5/10/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JOE E. COLLINS III,

Plaintiff and Appellant,

v.

MAXINE WATERS et al.,

Defendants and 

Respondents.

 B312937

 Los Angeles County

 Super. Ct. No. 20STCV37401

APPEAL from an order of the Superior Court of 

Los Angeles County, Yolanda Orozco, Judge. Reversed and 

remanded.

Law Offices of Donna Bullock and Donna C. Bullock for 

Plaintiff and Appellant.

Bird, Marella, Boxer, Wolpert, Nessim, Drooks, Lincenberg 

& Rhow, Gary S. Lincenberg and Thomas V. Reichert for 

Defendants and Respondents.

____________________

Actual malice is a term of art in defamation law. If you,

with actual malice, publish falsehoods about a public figure, you 
2

forfeit the constitutional protection of New York Times v. 

Sullivan (1964) 376 U.S. 254, 283–288. Your actual malice 

means the public figure can sue you for defamation. (St. Amant 

v. Thompson (1968) 390 U.S. 727, 728 (St. Amant).) 

Blameworthy disregard for truth dissolves your constitutional 

shield.

Actual malice, in this constitutional usage, does not mean 

ill will. (Harte-Hanks Communications, Inc. v. Connaughton 

(1989) 491 U.S. 657, 666 (Harte-Hanks).) Rather, people speak 

with actual malice when they know their statements are false, or 

they recklessly disregard whether their statements might be 

false. (St. Amant, supra, 390 U.S. at p. 728.) Reckless disregard, 

in this sense, requires defendant speakers to have a high degree 

of awareness of probable falsity. (Harte-Hanks, supra, at p. 667.) 

Plaintiffs who are public figures must prove actual malice 

by clear and convincing evidence, but they may rely on 

circumstantial evidence to do so. (Harte-Hanks, supra, 491 U.S. 

at pp. 659, 668.) While a defendant’s failure to investigate an 

issue will not, alone, support a finding of actual malice, the fact a 

defendant purposely avoided learning the truth can support that 

finding. (Id. at p. 692; Khawar v. Globe International, Inc. (1998) 

19 Cal.4th 254, 274–280 (Khawar).)

We apply these rules to a case about an election campaign. 

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, 
3

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. It was 

error to grant Waters’s anti-SLAPP motion.

I

We set out the situation in more detail.

Waters and Collins competed to represent California’s 43rd 

congressional district. Well before the November 3, 2020 election 

date, Collins heard rumors Waters would claim his Navy 

discharge was dishonorable. So, on August 18, 2020, he posted a 

document on his campaign website. The document stated his 

discharge had been “under honorable conditions (general).” 

In radio and print ads starting in August and continuing in 

September, October, and November 2020, Waters and her 

campaign told the public that Collins’s discharge had been 

dishonorable. 

Collins sued Waters and her campaign committee for 

defamation on September 30, 2020—more than a month before 

the election. He appended to his complaint a screenshot of his 

Facebook posting of his discharge document. 
4

This posted document is the focus of this suit.

The posting showed a one-page form the parties refer to as 

a DD-214. 

The document’s title is “CERTIFICATE OF RELEASE OR 

DISCHARGE FROM ACTIVE DUTY.” After listing Collins’s 

name and personal information, the document summarizes his 

service record in several boxes. Near the bottom, under “TYPE 

OF SEPARATION,” the form states “DISCHARGED.” 

To the right of that box is one headed “CHARACTER OF 

SERVICE.” Typed in that box are the words “UNDER 

HONORABLE CONDITIONS (GENERAL).” 

Collins or someone has circled these words—“UNDER 

HONORABLE CONDITIONS (GENERAL)”—with a red oval in 

the record version of the document.

Throughout this case, Collins repeatedly has emphasized 

his Navy discharge was “under honorable conditions (general).”

Still lower on the page is a box labeled “NARRATIVE 

REASON FOR SEPARATION.” The words in that box are 

“MISCONDUCT (SERIOUS OFFENSE).” 

The exhibit in the record apparently is a copy of the 

document from a screenshot of a Facebook website. This 

attachment to Collins’s complaint has the word “Facebook” and a 

Facebook logo at the top. At the bottom are symbols denoting 

thumbs up and a heart and “101 Comments.” The record image 

of this page has black redactions of some of Collins’s personal 

information, as well as the red oval drawn around the words 

“UNDER HONORABLE CONDITIONS (GENERAL).” 

On October 8, 2020, Collins sent his complaint, with the 

exhibit and a letter demanding a retraction, by certified mail to 

Waters at her offices in Washington, D.C. and Los Angeles.
5

Nevertheless, Waters, according to Collins, continued to tell 

voters Collins’s discharge was dishonorable, and did so several 

times a day throughout October 2020 and into November.

Waters filed a special motion to strike Collins’s complaint. 

She accompanied her motion with her two declarations.

We summarize Waters’s two declarations.

Waters explained she and her staff had investigated Collins 

when he entered the race. They traveled to San Diego, where 

Collins had been stationed in the Navy.

Waters discovered two lawsuits Collins filed in San Diego.

In the first lawsuit, Collins disputed an obligation to pay 

child support and claimed damages of $100 million. Collins, 

Waters declared, filed accompanying documents showing he had 

purportedly created a “Royal Family of Collins Trust” into which 

he had placed assets like his birth certificate—an asset Collins 

claimed had a value of $100 billion. The total value Collins 

asserted for these trust items was over $700 billion. Waters 

appended Collins’s filings to her declaration. 

Waters also declared that, in his second San Diego lawsuit, 

Collins sued the Navy for breaching the terms of use of his 

campaign website. In his 2017 complaint, Collins requested his 

discharge be “[u]pdate[d] . . . to honorable.” 

A federal district court issued a decision in Collins’s second 

case. (Collins v. United States Navy (2021) No. 17CV2451-MMA 

(BGS), 2021 WL 1998642.) 

Waters declared this federal decision played a major role in 

her view of Collins and his discharge. In the background section 

of this decision, the first sentence stated, with our italics, that 

“[t]his action arises out of events related to [Collins’s] 

dishonorable discharge from the Navy.”
6

The federal district court issued this order on August 8, 

2018. 

We interrupt the temporal flow of these facts to note that, 

years later, the court deleted the significant word “dishonorable” 

from its 2018 decision. In May 2021—after the trial court 

granted Waters’s anti-SLAPP motion and after Collins had filed 

his notice of appeal in this case—the federal district court, on its 

own motion, modified its decision to change this sentence and to 

remove what it termed the “inaccurate” description of Collins’s 

discharge as “dishonorable.” Without calling the discharge 

“honorable” or “dishonorable,” then, the amended May 2021 

decision simply refers to Collins’s separation as a “discharge.” 

(Collins, supra, 2021 WL 1998642, at *1, fn. 1.) 

Returning to Waters’s declarations, she recounted how she 

had called the attorney who represented the Navy in Collins’s 

second lawsuit. Waters declared she asked him about the case. 

The attorney said he would pull a copy of the decision and would 

call Waters back. “When he called me back, he told me, ‘It says 

right here, he was dishonorably discharged!’ ” 

Waters’s declaration did not say she asked the attorney for 

his personal or other knowledge about whether Collins’s 

discharge in fact was dishonorable.

Waters declared Collins filed other documents in his second 

lawsuit that she said revealed his “dishonorable character.” 

Waters claimed the documents showed Collins had been 

disciplined for running for President while in the Navy. 

Waters also alleged the documents showed the Navy had 

disciplined Collins for providing alcohol to an underage sailor and 

for having sex with a service member under his command. 

Waters stated Collins was the subject of a keepaway order and 
7

that he was running a cocktail lounge, which he valued at $100 

million, that was simply his on-base apartment in San Diego.

Waters also learned that, in connection with these San 

Diego lawsuits, Collins filed an application to proceed in forma 

pauperis in which he stated he was not receiving any 

governmental benefits. Waters declared she inferred this meant 

Collins’s discharge had been dishonorable, for service members 

with honorable discharges are entitled to military benefits while 

those with dishonorable discharges are not. 

In sum, Waters declared she had no reason to believe 

anything Collins told her or any document he showed her. She 

declared she sincerely believed Collins’s discharge was 

dishonorable. 

Collins opposed Waters’s anti-SLAPP motion. He conceded 

the first prong of the two-prong anti-SLAPP test but asserted on 

prong two his case had merit because Waters had published with 

reckless disregard for the truth. He claimed it would have been 

easy for a member of Congress like Waters to check his military 

discharge status. Collins authenticated and appended the 

discharge document he had attached to his complaint—the socalled DD-214. 

During this lawsuit, Collins provided Waters with five 

more documents from the Navy showing his discharge status had 

not been dishonorable.

Collins’s other proof included evidence that, beginning in 

September 2020, Waters ran a radio advertisement in her own 

voice saying Collins “had his health care paid for by the Navy.” 

In her declaration, Waters had stated she knew a dishonorably 

discharged veteran is ineligible for military benefits. Collins 
8

argued this radio ad proved Waters knew he had not been 

dishonorably discharged. 

Collins declared the five types of military discharges are: 

“(1) Honorable, (2) General, Under Honorable Conditions (which 

is my discharge as stated in my DD-214); (3) Under Other than 

Honorable Conditions; (4) Bad Conduct; and (5) Dishonorable.” 

The trial court granted Waters’s special motion to strike. 

On prong two, the court found Collins failed to meet his burden of 

proving actual malice by clear and convincing evidence. The 

court ruled Waters subjectively and sincerely doubted the 

validity of the document shown in Collins’s Facebook posting. 

Waters, the court ruled, had three bases for believing Collins had 

been dishonorably discharged. 

1. Waters relied on the district court order stating 

Collins’s discharge was “dishonorable.” 

2. Collins had asked the district court to update his 

discharge to honorable.

3. Collins’s past conduct convinced Waters that Collins 

lacked integrity and veracity. 

Quoting Reader’s Digest Association, Inc. v. Superior Court

(1984) 37 Cal.3d 244, 258 (Reader’s Digest), the court ruled 

Waters’s failure to conduct a thorough and objective 

investigation, standing alone, did not prove actual malice. The 

court also granted Waters’s motion for attorney fees. 

Collins appealed the order granting the anti-SLAPP 

motion. 

II

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 
9

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. We reverse and remand for further

proceedings.

A

Legal cross-currents run through this case. Within broad 

limits, federal first amendment law strongly favors substantive 

protection of free speech. But state anti-SLAPP law sets 

procedural rules about how courts view the factual record: we 

must accept the plaintiff’s proof, we do not resolve conflicts in the 

evidence, and we cannot settle credibility contests. We review 

these laws.

1

The federal constitutional guarantee of free speech has its 

fullest and most urgent application in the conduct of political 

campaigns. Those engaged in political debate are entitled not 

only to speak responsibly, but also to speak foolishly and without 

moderation. (Beilenson v. Superior Court (1996) 44 Cal.App.4th 

944, 949–950 (Beilenson).) 
10

It is “a prized American privilege to speak one’s mind, 

although not always with perfect good taste, on all public 

institutions.” (New York Times v. Sullivan, supra, 376 U.S. at p. 

269, quotation marks and citation omitted.) Our “profound 

national commitment [is] to the principle that debate on public 

issues should be uninhibited, robust, and wide-open, and that it 

may well include vehement, caustic, and sometimes unpleasantly 

sharp attacks on government and public officials.” (Id. at p. 270.) 

Courts formulated the actual malice standard with keen 

awareness that, in free debate, erroneous statements are 

inevitable. Courts must protect some errors to give free 

expression breathing space to survive. The actual malice 

standard is exacting: it protects some falsehoods in order to 

safeguard speech that matters. (Annette F. v. Sharon S. (2004) 

119 Cal.App.4th 1146, 1168 (Annette F.).)

Plaintiffs like candidate Collins who are public figures 

must prove actual malice by clear and convincing evidence and 

may rely on circumstantial evidence to do so. (Harte-Hanks, 

supra, 491 U.S. at pp. 659, 668.) “The clear and convincing 

standard requires that the evidence be such as to command the 

unhesitating assent of every reasonable mind.” (Beilenson, 

supra, 44 Cal.App.4th at p. 950.) 

These federal constitutional rules govern. The parties have 

not suggested state constitutional law differs.

2

The pivotal state law is the anti-SLAPP statute. This 

statute created an efficient mechanism for the early and 

economical dismissal of nonmeritorious claims arising from 

protected activity. (Annette F., supra, 119 Cal.App.4th at p. 

1159.) The procedure’s goal is, at the very beginning of the 
11

lawsuit, to weed out meritless claims. (Baral v. Schnitt (2016) 1 

Cal.5th 376, 384.)

Analysis of special motions to strike proceeds in two steps. 

Collins conceded the first step about whether his claims arose 

from protected activity: indeed they did. In the second step, 

Collins had the burden of showing his claims had at least 

minimal merit. (Bonni v. St. Joseph Health System (2021) 11 

Cal.5th 995, 1009.)

This second step required Collins to demonstrate a 

probability of success. In this summary-judgment-like process, 

courts do not weigh evidence or resolve conflicting factual claims. 

Instead they evaluate whether plaintiffs like Collins have stated 

legally sufficient claims and whether these plaintiffs have made a 

prima facie evidentiary showing sufficient to sustain a favorable 

judgment. Courts are required to accept the plaintiff’s evidence 

as true. The task is to evaluate the defense showing only to 

determine if it defeats the plaintiff’s claims as a matter of law. If 

the lawsuit has even minimal merit, the motion fails and the suit 

proceeds. Appellate review is independent. (Monster Energy Co. 

v. Schechter (2019) 7 Cal.5th 781, 788 (Monster).) 

These state procedural rules have a strong impact on this 

case, because one main line of attack for Waters is her contention 

that Collins is so disreputable that she could not believe anything 

he said. At this preliminary stage of the case, however, we must 

accept the plaintiff’s evidence fully. We do not resolve credibility 

disputes or evidentiary conflicts. (Taus v. Loftus (2007) 40 

Cal.4th 683, 714.) A court cannot grant a special motion to strike 

if the plaintiff has presented admissible evidence that, if believed 

by the trier of fact, would support a cause of action against the 

defendant. (Id. at pp. 729, 736.) 
12

B

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.

The trial court quoted this sentence from page 258 of the 

Reader’s Digest decision, to which we add our emphasis: “The 

failure to conduct a thorough and objective investigation, 

standing alone, does not prove actual malice, nor even necessarily 

raise a triable issue of fact on that controversy.” 

That quotation is accurate and binding. But the Reader’s 

Digest decision also stated a “failure to investigate” was among 

the pertinent factors that, “in an appropriate case, indicate that 

the publisher himself had serious doubts regarding the truth of 

his publication.” (Reader’s Digest, supra, 37 Cal.3d at p. 258, 

italics added.) 

This is an “appropriate case” fitting the Reader’s Digest

decision, for here the failure to investigate did not stand alone. 

Rather, we have additional facts: the plaintiff showed the 

defendant facially valid and easily verifiable documentary proof 

creating a considerable risk the defendant was uttering a 

falsehood; and yet the defendant kept uttering without checking. 

There was nothing like that in the Reader’s Digest case. (See 
13

Reader’s Digest, supra, 37 Cal.3d at p. 259 [“nothing . . . 

suggest[ed] inaccuracy”].) 

Nor is this a case a debate over whether a word is merely 

“technically incorrect.” (Annette F., supra, 119 Cal.App.4th at p. 

1170 [“convicted” can refer to a noncriminal adjudication of 

domestic violence]; see also Conroy v. Spitzer (1999) 70 

Cal.App.4th 1446, 1453 [ordinary people do not equate “guilty” 

with only criminal guilt].)

Rather, the guiding authorities are three other decisions: 

Harte-Hanks, Khawar, and Antonovich v. Superior Court (1991) 

234 Cal.App.3d 1041, 1053 (Antonovich). 

In Harte-Hanks, Connaughton was an unsuccessful 

candidate in a judicial election who sued Journal News, which 

had supported his rival. About one week before the election, 

Journal News ran a front-page story quoting a grand jury witness 

named Thompson accusing Connaughton of using “dirty tricks” in 

a grand jury investigation. A jury found that the news story was 

defamatory and that clear and convincing evidence showed the 

paper had published with actual malice. 

The Supreme Court of the United States ruled Journal 

News had published with actual malice. Part of the key evidence 

was that Connaughton made exculpatory audiotapes available to 

Journal News but “no one at the newspaper took the time to 

listen to them.” (Harte-Hanks, supra, 491 U.S. at pp. 660–661, 

690–692.) Listening to these audiotapes would have been a 

“simple means” of verifying—or disproving—a challenged claim. 

(Id. at p. 683.)

“Similarly, there is no question that the Journal News was 

aware that Patsy Stephens was a key witness and that they 

failed to make any effort to interview her. Accepting the jury’s 
14

determination that [Journal News’s] explanations for these 

omissions were not credible, it is likely that the newspaper’s 

inaction was a product of a deliberate decision not to acquire 

knowledge of facts that might confirm the probable falsity of 

Thompson’s charges. Although failure to investigate will not 

alone support a finding of actual malice, [citation], the purposeful 

avoidance of the truth is in a different category.” (Harte-Hanks, 

supra, 491 U.S. at p. 692, italics added; see also id. at pp. 682–

683.)

“[I]f the Journal News had serious doubts concerning the 

truth of Thompson’s remarks, but was committed to running the 

story, there was good reason not to interview Stephens—while 

denials coming from Connaughton’s supporters might be 

explained as motivated by a desire to assist Connaughton, a 

denial coming from Stephens would quickly put an end to the 

story.” (Harte-Hanks, supra, 491 U.S. at p. 682.)

In sum, crucial proof of Journal News’s actual malice was 

its “deliberate decision not to acquire knowledge of facts that 

might confirm the probable falsity.” (Harte-Hanks, supra, 491 

U.S. at p. 692.) Do not listen to the audiotapes; do not interview 

Patsy Stephens. We are committed to running the story. The 

audiotapes and Stephens can tell us only what we do not want to 

hear. This was evidence of actual malice.

In Khawar, a journalist sued the Globe newspaper for 

repeating claims from a book by one Morrow accusing the 

journalist of assassinating Robert Kennedy. A jury awarded the 

journalist over $1 million because Globe republished falsehoods 

with actual malice. The California Supreme Court determined 

there was clear and convincing evidence of actual malice. That 

finding may be upheld, the court ruled, where there are obvious 
15

reasons to doubt the accuracy of the challenged report, and the 

one republishing the report failed to consult “relevant 

documentary sources.” (Khawar, supra, 19 Cal.4th at pp. 259–

261, 273–276.) The court ruled the paper “failed to use readily 

available means to verify the accuracy of the claim” at issue. (Id.

at p. 276.) For example, the reporter who wrote the article had 

not “contacted any of the eyewitnesses to the assassination, some 

of whom were prominent individuals who could easily have been 

located.” (Id. at p. 277.) 

“Nor is there any evidence that anyone working for Globe 

reviewed the voluminous public records of the government 

investigation of the Kennedy assassination or the Sirhan trial. 

Indeed, Globe’s managing editor, Robert Taylor, conceded during 

his testimony that Globe made no attempt to independently 

investigate the truth of any of the statements in the Morrow 

book. In short, phrasing our conclusion in the language of the 

United States Supreme Court, ‘Accepting the jury’s 

determination that [Globe]’s explanations for these omissions 

were not credible, it is likely that [Globe]’s inaction was a product 

of a deliberate decision not to acquire knowledge of facts that 

might confirm the probable falsity of [the Morrow book]’s 

charges.’ ” (Khawar, supra, 19 Cal.4th at p. 277.) 

The California Supreme Court concluded the trial evidence 

“strongly supports an inference that Globe purposefully avoided 

the truth and published the Globe article despite serious doubts 

regarding the truth of the accusation against Khawar.” (Khawar, 

supra, 19 Cal.4th at p. 279.) 

In Antonovich, there were two candidates for a seat on a 

county board of supervisors: the incumbent, Antonovich, and his 

challenger, Ward. Ward previously held that seat on the board of 
16

supervisors, but Antonovich defeated Ward in an earlier election. 

Years later, the two faced off again, and during this second 

contest the now-incumbent Antonovich accused Ward, when 

Ward departed the office after his earlier defeat, of spitefully 

shredding official files just before Antonovich moved in. 

(Antonovich, supra, 234 Cal.App.3d at p. 1045.) Antonovich’s 

point was Ward destroyed important public property just to make 

life hard for Antonovich. During the campaign, Antonovich 

repeated variations of this charge against Ward some six times. 

(Id. at p. 1049.)

Ward publicly challenged Antonovich’s shredding 

accusation. Afterwards Antonovich persisted in repeating the 

substance of this charge without taking steps to inquire into its 

truth, despite an offer from Ward of proof for Antonovich’s 

inspection. (Antonovich, supra, 234 Cal.App.3d at p. 1053.) 

“From this evidence the trier of fact was entitled to find 

that Antonovich’s ‘inaction was a product of a deliberate decision 

not to acquire knowledge of facts that might confirm the probable 

falsity of [the subject] charges,’ which amounts to a ‘purposeful 

avoidance of the truth’ and will support a finding of actual malice. 

(Harte-Hanks, [supra,] 491 U.S. 657, 692.)” (Antonovich, supra, 

234 Cal.App.3d at p. 1053, italics added.) 

Harte-Hanks, Khawar, and Antonovich govern this suit.

Major factual distinctions are possible between this suit 

and these three authorities. Central among them is the contrast 

between, on the one hand, the prestige and reliability of the 

federal district court decision on which Waters relied and, on the 

other hand, what Waters charged was Collins’s lack of veracity 

and “dishonorable character.” So too could Waters’s phone call to 

Collins’s opposing counsel, as well as Collins’s statement about 
17

upgrading his discharge status, count as distinguishing positives 

for Waters. It is entirely possible that the trier of fact, later in 

this proceeding, will view all factors in Waters’s favor and fully 

accept her professed sincerity. Thus a jury might find against 

Collins, with his $100 billion birth certificate and so forth. 

Or the trier of fact may question why Waters would call the 

Navy’s attorney simply to have him read an opinion she already 

had, and why she would refrain from asking that attorney for his 

personal knowledge about Collins’s discharge status. 

A further distinction between Harte-Hanks, Khawar, and 

Antonovich and this suit is the ease of internet research, which 

can yield information with a few strokes. A jury might find this 

distinction cuts in Collins’s favor.

At this early stage of the case and without weighing the 

conflicting evidence, Collins established his case has at least 

minimal merit. 

Collins showed Waters an official-looking document that, if 

authentic, completely pierced through to absolute truth, 

whatever Collins’s foibles might have been, no matter the federal 

court opinion, and irrespective of other information. 

Waters does not dispute this kind of document—the DD214—is an authoritative source of discharge information. If 

authentic, it would prove Waters’s accusation was totally false. 

The definitive quality of this proof magnified the risk of ignoring 

it. 

Waters has not critiqued this document’s appearance. It 

looks to be genuine in every respect. Indeed, as noted above, the 

form had negative information about Collins: it stated Collins’s 

“NARRATIVE REASON FOR SEPARATION” was 
18

“MISCONDUCT (SERIOUS OFFENSE).” If Collins fabricated a 

document to make himself look good, this entry is puzzling. 

Perhaps the document was a total fake. These days, 

anyone with skills can alter documents or create them from 

scratch on a laptop at home. At oral argument, Waters rightly 

emphasized that software is making it ever easier to concoct 

screen images that look genuine but are not. 

But official documents can be checked officially. It could 

only have been to Waters’s electoral advantage to expose Collins’s 

fabrication, if fabrication it truly was. And the official check was 

easy to do. That fact—that it would have been easy to check—is 

in the record and is undisputed. 

Waters did not check. Her briefing to us states that, to this 

day, she still has not checked. 

A fact finder could conclude Waters was like Journal News, 

Globe, and Antonovich: do not ask if you are committed to the 

project and would rather not know. After they are told that 

potentially devastating information is easily available, 

decisionmakers who opt for ignorance instead of ready truth can 

be willfully blind. If fact finders drew this inference, Collins’s 

proof could constitute clear and convincing evidence of actual 

malice. Reasonable minds could agree that people purposefully 

ignorant about the truth can have a high degree of awareness of 

probable falsity of a claim they deliberately avoid checking. At 

this preliminary stage of the case, then, Waters has not defeated 

Collins’s suit as a matter of law. (See Monster, supra, 7 Cal.5th 

at p. 788 [court evaluates the defendant’s showing to determine if 

it defeats the plaintiff’s claim as a matter of law].) 

Waters faults Collins for not filing a supplemental 

complaint but cites no authority for the relevance of this point to 
19

a special motion to strike. Collins at trial could move to conform 

his pleading to proof. The absence of a supplemental pleading 

does not detract from Collins’s showing of minimal merit.

Because it was a mistake to grant the special motion to 

strike on this record, we also vacate the trial court’s award of 

attorney fees to Waters.

DISPOSITION

We reverse the order granting the special motion to strike, 

vacate the trial court’s fee award, and remand for further 

proceedings. We award costs to Collins. 

WILEY, J.

We concur: 

GRIMES, Acting P. J. 

VIRAMONTES, J.