Filed 4/8/19 (unmodified opinion and publication order attached)

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SONOMA 

COUNTY,

Respondent;

SCOTT FLATER,

Real Party in Interest.

 A151968 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Appellants, 

v.

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Defendants and Appellants;

DAVID MCCUAN,

Defendant.

 A152008 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Respondents, 

v.

DAVID MCCUAN,

Defendant and Appellant;

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Defendants.

 A152320 

MODIFICATION OF PUBLICATION 

ORDER

[NO CHANGE IN JUDGMENT]

 (Sonoma County

 Super. Ct. No. SCV-259927)
THE COURT: 

This court’s order of April 8, 2019, publishing the opinion in these consolidated 

cases, is hereby modified to read as follows:

For good cause it now appears that the opinion should be published in the Official 

Reports in its entirety. 

There is no change in the judgment. 

Dated: _______________ _________________________________, P. J.
Superior Court of Sonoma County, No. SCV-259927, Hon. Peter K. Ottenweller, Judge.

Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox and Diana Palacios for 

Petitioners and for Defendants and Appellants Sonoma Media Investments, LLC, The 

Press Democrat and Kevin McCallum.

Cannata, O’Toole, Fickes & Almazan and Karl Olson for Defendant and Appellant David 

McCuan.

Perry, Johnson, Anderson, Miller & Moskowitz, Deborah S. Bull, Michael G. Miller; 

Towle Dennison & Maniscalco and Michael C. Denison for Real Party in Interest, for 

Plaintiffs and Appellants and for Plaintiffs and Respondents.

No appearance for Respondent Superior Court.
Filed 4/8/19 (unmodified version)

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SONOMA 

COUNTY,

Respondent;

SCOTT FLATER,

Real Party in Interest.

 A151968 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Appellants, 

v.

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Defendants and Appellants;

DAVID MCCUAN,

Defendant.

 A152008 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Respondents, 

v.

DAVID MCCUAN,

 A152320 

 (Sonoma County

 Super. Ct. No. SCV-259927)

 

* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II and III.
Defendant and Appellant;

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Defendants.

THE COURT: 

The opinion in the above-entitled matter, filed on March 15, 2019, was not 

certified for publication in the Official Reports. For good cause it now appears that the 

opinion, with the exception of Parts II and III, should be published in the Official 

Reports.

There is no change in the judgment.

Dated: _______________ _________________________________, P. J.
Superior Court of Sonoma County, No. SCV-259927, Hon. Peter K. Ottenweller, Judge.

Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox and Diana Palacios for 

Petitioners and for Defendants and Appellants Sonoma Media Investments, LLC, The 

Press Democrat and Kevin McCallum.

Cannata, O’Toole, Fickes & Almazan and Karl Olson for Defendant and Appellant David 

McCuan.

Perry, Johnson, Anderson, Miller & Moskowitz, Deborah S. Bull, Michael G. Miller; 

Towle Dennison & Maniscalco and Michael C. Denison for Real Party in Interest, for 

Plaintiffs and Appellants and for Plaintiffs and Respondents.

No appearance for Respondent Superior Court.
1

Filed 3/15/19; ordered published 4/8/19 (pub. order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Petitioners,

v.

THE SUPERIOR COURT OF SONOMA 

COUNTY,

Respondent;

SCOTT FLATER,

Real Party in Interest.

 A151968 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Appellants, 

v.

SONOMA MEDIA INVESTMENTS, 

LLC et al.,

Defendants and Appellants;

DAVID MCCUAN,

Defendant.

 A152008 

 (Sonoma County

 Super. Ct. No. SCV-259927)

WILLIAM GALLAHER et al., 

Plaintiffs and Respondents, 

v.

DAVID MCCUAN,

Defendant and Appellant;

SONOMA MEDIA INVESTMENTS, 

 A152320 

 (Sonoma County

 Super. Ct. No. SCV-259927)
2

LLC et al.,

Defendants.

Plaintiff William Gallaher is a real estate developer in Santa Rosa. During the 

2016 Santa Rosa City Council election, defendant The Press Democrat published a series 

of five articles about substantial independent election expenditures made by Gallaher’s 

son-in-law, plaintiff Scott Flater, on behalf of three City Council candidates. Plaintiffs 

allege the articles falsely implied that Gallaher was the source of the funds spent by 

Flater during the 2016 election. Plaintiffs brought suit against The Press Democrat, 

Sonoma Media Investments, LLC (the owner of the newspaper), Kevin McCallum (the 

author of the articles),1and David McCuan (a professor quoted in one of the articles), 

asserting causes of action for defamation, libel per se, and false light invasion of privacy. 

Defendants moved to strike the complaint pursuant to the anti-SLAPP statute,2section 

425.16 of the Code of Civil Procedure (Section 425.16).

The trial court granted the motion in part, denied the motion in part, and continued 

the motion in part to permit plaintiffs to conduct discovery on the issue of whether 

defendants acted with malice as to their statements regarding Flater. Defendants 

appealed, plaintiffs cross-appealed, and the media defendants petitioned for writ relief 

from the discovery order. We conclude the trial court should have granted defendants’ 

Section 425.16 in full because plaintiffs failed to make a prima facie showing the 

allegedly defamatory statements in the articles were false.

BACKGROUND

Between October 20 and November 11, 2016, defendant newspaper The Press 

Democrat (owned by defendant Sonoma Media) published five articles written by 

defendant McCallum. The articles reported on a large amount of spending by plaintiff 

 

1 We refer to defendants Sonoma Media Investments, LLP (Sonoma Media), The Press 

Democrat, and Kevin McCallum jointly as the “media defendants.”

2

 “SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ” (Jarrow 

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
3

Flater on behalf of three candidates for the Santa Rosa City Council during the 2016 

election. Defendant McCuan is a Sonoma State University political science professor 

quoted in the October 28 article. Plaintiffs allege the articles were defamatory because 

they implied that plaintiff Gallaher, a prominent local developer, was the source of the 

funds spent by Flater, his son-in-law.

The Press Democrat Articles

The first article, dated October 20, 2016, was entitled “Campaign finance gaps 

allow large donations in Santa Rosa council race.” The article reported that candidates 

were “getting a big bump from big money interests this election.” In addition to $75,000 

raised by “[a]n independent anti-rent-control group,” the article explained that “Scott 

Flater, the son-in-law of politically active developer Bill Gallaher, recently reported 

spending nearly $40,000 to help support two other candidates . . . . [¶] While he didn’t 

give the money directly to either candidate, the contributions raise questions about 

whether Flater or people close to him are exploiting gaps between state and city 

campaign finance laws that limit individual campaign contributions to $500 each but 

allow ‘major donors,’ such as Flater, to spend unlimited sums.” The article quoted 

concerns expressed by one of the candidates about such independent expenditures, and 

the article reported that Flater had “fail[ed] to file required campaign disclosure 

documents on time,” which Flater’s political consultant described as an “oversight.” The 

City Clerk was cited for the proposition that “[t]here is nothing illegal about Flater 

spending his own money in favor of candidates he supports, as long as he isn’t giving 

money directly to the campaigns or accepting donations from others.”

The October 20, 2016 article described plaintiffs as follows: “Flater, 40, is married 

to Gallaher’s daughter Molly, vice president of asset management for Gallaher’s 

company Oakmont Senior Living. Gallaher is one of the city’s most successful 

developers, having built hundreds of homes in Oakmont, as well as luxury senior living 

facilities . . . . He also owns a large property in east Santa Rosa on Elnoka Lane that he’s 

been trying to develop for over a decade.” Flater’s political consultant said “he believes 

Flater is spending his own funds in support of candidates but acknowledged he didn’t 
4

know if the funds originated from his developer father-in-law. [¶] ‘I don’t believe that’s 

true,’ [the consultant] said, adding he thought it ‘highly unlikely.’ ”

An October 28, 2016 article was entitled “Santa Rosa City Council candidates 

benefit from unprecedented spending.” The article commenced, “An unprecedented 

amount of outside money continues to flow into the Santa Rosa City Council race, raising 

questions about the people behind the last-minute campaign spending spree and their 

motivations. [¶] Scott Flater, son-in-law of politically active Santa Rosa developer Bill 

Gallaher, filed new campaign finance disclosures this week indicating that he has spent 

$130,375 to date to support three candidates . . . among the field of six vying for four 

council seats.” The article noted that, including spending by an anti-rent control group, 

“the amount of outside money pouring into the local City Council race appears to have 

smashed all previous records.” It continued, “The new disclosures brought a fresh round 

of denunciations from candidates that argued that the unlimited spending by wealthy 

individuals and outside groups was having a corrosive effect on local politics.”

The October 28, 2016 article distinguished between direct campaign contributions 

and independent expenditures and reported that plaintiffs and their spouses had each 

given $500 to one of the candidate’s campaigns. Flater’s profession was listed as 

“homemaker” in the donation record. The candidate described the donations as being 

part of a “bundle,” and defendant McCuan was reported as commenting, “That . . . is a 

pattern Gallaher has of ‘sprinkling money around’ to family members to maximize 

payments to — and potentially influence with — council candidates. [¶] “Bill Gallaher 

uses his family as a shell game, and has for a long time, in order to channel support to 

candidates of his liking. . . . It sounds to me what they have done is against the letter and 

the intent of the law.” Flater and Gallaher could not be reached for comment, but Flater’s 

political consultant was quoted as saying, “ ‘I believe that Scott Flater is acting 

independently with his own money in these races. . . . I pretty much know for sure.’ ” 

The consultant also observed that Gallaher was “found to be ‘clean’ when he was 

investigated . . . for allegations that he violated campaign finance rules in a previous local 

election.”
5

An October 29, 2016 article was entitled “Outside money breaks record.” Aside 

from the title, it is identical to the October 28 article.3

A November 5, 2016 article was entitled “Complaint filed against big spender in 

Santa Rosa City Council race.” The article commenced, “A Santa Rosa contractor has 

filed a complaint with the state political watchdog alleging that the son-in-law of a 

prominent Sonoma County developer has violated campaign finance laws with his role in 

the unprecedented influx of outside cash flowing into this year’s Santa Rosa City Council 

race.” The complainant was quoted as saying “he ‘strongly suspects’ that the record 

spending by Scott Flater is fueled by money that has been ‘laundered and bundled’ by 

others. [¶] ‘I think this is an attempt to avoid transparency . . . . It’s very hard to judge 

what the economic interests behind this are, which is the whole point of the disclosure 

requirements.’ ” The complainant was also reported to say that “Flater’s late spending 

spree . . . has telltale signs of someone who has agreed to act as a front man for other[] 

donors, allowing them to shield their political contributions and potential economic 

interests in the race from public view.” The article quoted the chairman of the Sonoma 

County Democratic Party as saying the spending “raises the question as to whether all the 

money is actually being put in by Scott Flater or by someone else.”

The November 5, 2016 article noted Flater’s relationship to Gallaher and that 

Flater had spent “nearly $192,000 on mailers and canvassing in support of three of the six 

candidates for City Council.” That spending “accounts for more than a third of the total 

in the race, including spending by candidates’ campaigns.” The article observed, “The 

record-breaking infusion of private cash into the race has highlighted the inequity 

between the $500 limits Santa Rosa puts on individual contributions and the unlimited 

amounts state law allows donors and groups to spend on independent expenditures not 

associated with candidates’ campaigns.” The article also reported that “Gallaher was 

cleared earlier this year of a similar complaint alleging” one of his companies “ ‘engaged 

 

3 The media defendants explain that the October 28, 2016 article was “published online 

. . . and then again in identical form in print on October 29.”
6

in campaign money laundering by making contributions in the name of’ ” persons who 

received reimbursement from the company.

Finally, a November 11, 2016 article was entitled “Santa Rosa council members 

seek options to curb unlimited spending in future elections.” The article made reference 

“to the $195,000 that campaign filings indicate was spent by Scott Flater, the son-in-law 

of prominent local developer and banker Bill Gallaher, who has a history of bundling 

political contributions from family and colleagues. [¶] Flater, a 40-year-old father of four 

children who listed himself as ‘homemaker’ in filings, is now the subject of a complaint 

to the State Fair Political Practices Commission alleging he’s not the real source of the 

money.”

Plaintiffs’ Lawsuit and Defendants’ Anti-SLAPP Motion

In December 2016, plaintiffs filed a complaint (Complaint) against Sonoma 

Media, The Press Democrat, Kevin McCallum, and David McCuan. The Complaint 

alleged causes of action for defamation, libel per se, and false light invasion of privacy. 

Referencing the articles described previously, plaintiffs alleged “Defendants made untrue 

statements regarding Mr. Flater’s political contributions related to the 2016 Santa Rosa

City Council election . . . including, but not limited to, that Mr. Flater was a ‘front man’ 

for Mr. Gallaher, that Mr. Gallaher provided the money that Mr. Flater used and that Mr. 

Gallaher uses his family as a ‘shell game.’ ”

In February 2017, the media defendants moved to strike the complaint under 

Section 425.16. They argued plaintiffs’ claims arose from their “conduct in furtherance 

of their exercise of the right of free speech in connection with issues of public interest,” 

and plaintiffs could not demonstrate a probability of prevailing on their claims. 

Defendant McCuan joined in the motion.

In March 2017, plaintiffs moved for leave “to conduct limited discovery of 

Defendants on the subject of whether Defendants knew the statements made by their 

sources were false or in reckless disregard of whether the statements were false.” 

Plaintiffs also filed their opposition to the anti-SLAPP motion. 
7

In June 2017, the trial court ruled on the motion for discovery and the motion to 

strike. The court concluded plaintiffs’ claims were covered by the anti-SLAPP law 

because they “solely arise from the Press Democrat’s news reporting about Plaintiffs[’] 

involvement in funding candidates in the 2016 election for Santa Rosa City Council, an 

official proceeding, in a public forum, involving a matter of indisputable public interest.” 

The court then turned to whether plaintiffs had demonstrated a probability of prevailing 

on their claims. The court concluded that only statements in the October 28 and 29 

articles were potentially actionable. Although there is no analysis in the body of the 

decision, the court stated at the outset of its decision that plaintiffs “did not comply with 

[their] retraction duties pursuant to Civil Code section 48a” as to the October 20 article. 

The court also concluded the November 5 and 11 articles did not contain actionable 

defamatory statements. As to plaintiffs’ showing of falsity, the trial court stated in a 

conclusory fashion that, “According to the Gallaher and Flater declarations, Plaintiffs 

have met their burden that the statements and their implications are false.”

The court concluded Flater was a limited purpose public figure and continued the 

motion to strike as to him to allow depositions of defendants McCallum and McCuan 

“only as to whether they reported on stated facts with ill-will or other improper motive as 

to” the October 28 and 29 articles. The court concluded Gallaher was not a limited 

purpose public figure, and, as we understand the decision, the court granted the motion to 

strike the defamation cause of action as to him except as to the October 28 and 29 

articles.4 The trial court granted the motion to strike the libel per se and false light causes 

of action as “duplicative” of the defamation claim.

The media defendants appealed and plaintiffs cross-appealed (A152008); 

defendant McCuan filed a separate appeal (A152320). This court consolidated the 

appeals for purposes of briefing, oral argument, and decision. In July 2017, the media 

defendants filed a petition in this court seeking issuance of a writ that would, among 

 

4 At the outset, the decision states the motion to strike is denied “except as to those 

allegations relating to the October 20, 2016 article.” But that statement is inconsistent 

with the trial court’s conclusion the November articles are not actionable.
8

other things, direct the trial court to vacate its order permitting plaintiffs to conduct 

discovery (A151968). This court issued an order to show cause, set a briefing schedule, 

and ordered the writ proceeding consolidated with the appeals and cross-appeal 

(A152008 and A152320) for purposes of oral argument and decision.

DISCUSSION

I. The Anti–SLAPP Law

“In 1992, the Legislature enacted [S]ection 425.16 in an effort to curtail lawsuits 

brought primarily ‘to chill the valid exercise of . . . freedom of speech and petition for 

redress of grievances’ and ‘to encourage continued participation in matters of public 

significance.’ (§ 425.16, subd. (a).) The section authorizes a special motion to strike ‘[a] 

cause of action against a person arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States [Constitution] or [the] 

California Constitution in connection with a public issue . . . .’ (§ 425.16, subd. (b)(1).) 

The goal is to eliminate meritless or retaliatory litigation at an early stage of the 

proceedings. [Citations.] The statute directs the trial court to grant the special motion to 

strike ‘unless the court determines that the plaintiff has established that there is a 

probability that the plaintiff will prevail on the claim.’ (§ 425.16, subd. (b)(1).)” 

(Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1395–

1396, fn. omitted (Gallimore).)

“The statutory language establishes a two-part test. First, it must be determined 

whether the plaintiff’s cause of action arose from acts by the defendant in furtherance of 

the defendant’s right of petition or free speech in connection with a public issue. 

[Citation.] ‘A defendant meets this burden by demonstrating that the act underlying the 

plaintiff’s cause fits one of the categories spelled out in [S]ection 425.16, subdivision 

(e).’ [Citation.] Assuming this threshold condition is satisfied, it must then be 

determined that the plaintiff has established a reasonable probability of success on his or 

her claims at trial.” (Gallimore, supra, 102 Cal.App.4th at p. 1396.) “Whether [S]ection 

425.16 applies and whether the plaintiff has shown a probability of prevailing are both 

legal questions which we review independently on appeal.” (Ibid.)
9

II. Plaintiffs’ Claims Arise Out of Protected Conduct 

All of the claims in the Complaint arise from the allegedly defamatory statements 

about Gallaher and Flater in five articles published by The Press Democrat between 

October 20 and November 11, 2016. The trial court found the claims were encompassed 

by Section 425.16, subdivision (e)(3), which brings within the protection of the antiSLAPP law “written or oral statement[s] or writing[s] made in a place open to the public 

or a public forum in connection with an issue of public interest.”

Plaintiffs argue the media defendants’ newspaper and website were not public 

forums within the meaning of Section 425.16, subdivision (e)(3), because they did not 

“involve an element of [public] access to participate in the debate.” Plaintiffs rely on the 

California Supreme Court’s decision in Barrett v. Rosenthal (2006) 40 Cal.4th 33, which 

stated that “Web sites accessible to the public, like ‘news groups’ where [the defendant] 

posted [the alleged defamatory] statement, are ‘public forums’ for purpose of the antiSLAPP statute.” (Id. at p. 41, fn. 4.) Plaintiffs argue that access for public participation 

is necessary for news groups to be considered public forums. However, the court of 

appeal in Nygård, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, concluded that, 

under Barrett, “public access, not the right to public comment, is the hallmark of a public 

forum.” (Nygård, at p. 1039.) There, the court held that a magazine was a public forum, 

reasoning “a newspaper or magazine need not be an open forum to be a public forum—it 

is enough that it can be purchased and read by members of the public.” (Ibid.) We agree 

with Nygård on this point.

Further, even if the newspaper articles were not considered a public forum, it is 

clear the articles are encompassed by Section 425.16, subdivision (e)(4), which brings 

within the protection of the anti-SLAPP law “any other conduct in furtherance of the 

exercise of the constitutional right of petition or the constitutional right of free speech in 

connection with a public issue or an issue of public interest.” As explained in Wilbanks 

v. Wolk (2004) 121 Cal.App.4th 883, that provision encompasses “even private 

communications, so long as they concern a public issue.” (Id. at p. 897; see also Vogel v. 

Felice (2005) 127 Cal.App.4th 1006, 1015 (Vogel) [Section 425.16, subdivision (e)(4) 
10

applies where “the conduct underlying the plaintiff’s claims consists of pure speech”].) 

On appeal, plaintiffs argue in passing that Wilbanks “blurs the distinction between (e)(3), 

which applies to ‘statements,’ and (e)(4) which applies to ‘conduct.’ Under the 

Wilbanks’ analysis, there would be no need to have (e)(3) at all, since all statements 

would be conduct and the ‘public forum’ prong would be written out of the anti-SLAPP 

statute.” Although it is true that subdivision (e)(4), as interpreted by Wilbanks, 

encompasses all statements within the scope of subdivision (e)(3), plaintiffs present no 

authority supporting a narrow construction of “conduct” in subdivision (e)(4), which 

would be contrary to the Legislature’s express directive that section 425.16 “shall be 

construed broadly.” (§ 426.16, subd. (a); see also Nygård, supra, 159 Cal.App.4th at pp. 

1039–1042.) As the media defendants point out, plaintiffs’ interpretation of subdivisions 

(e)(3) and (e)(4) would exclude most newspaper reporting on issues of public interest 

from the protection of the anti-SLAPP statute, despite the fact that “[n]ewspapers and 

publishers, who regularly face libel litigation, were intended to be one of the ‘ “prime 

beneficiaries” ’ of the anti-SLAPP legislation.” (Paterno v. Superior Court (2008) 163 

Cal.App.4th 1342, 1353.) We reject plaintiffs’ narrow interpretation of Section 425.16, 

subdivision (e)(4).

Plaintiffs also argue the articles are unprotected by the anti-SLAPP statute, 

whether under Section 425.16, subdivision (e)(3) or (e)(4), because they are not in 

connection with an issue of public interest. The contention is essentially frivolous. 

“California cases establish that generally, ‘[a] public issue is implicated if the subject of 

the statement or activity underlying the claim (1) was a person or entity in the public eye; 

(2) could affect large numbers of people beyond the direct participants; or (3) involved a 

topic of widespread, public interest.’ ” (D.C. v. R.R. (2010) 182 Cal.App.4th 1190, 

1226.)

It is beyond dispute that elections in general, and the financing of political 

advertisements in particular, affect large numbers of people and are topics of widespread 

interest. Although speculation about the source of a small amount of funds donated to or 

spent on behalf of a candidate might not constitute an issue of public interest, plaintiffs 
11

do not dispute the truth of the statement in the November 5 article that, as of that date, 

Flater had spent “nearly $192,000 on mailers and canvassing in support of three of the six 

candidates for City Council.” Neither do plaintiffs dispute the truth of the statements in 

the October 28 article indicating that Flater’s spending far exceeded the amounts raised 

by any of the candidates themselves.5

The Press Democrat articles reporting on Flater’s enormous independent 

expenditures, explaining Flater’s connection to Gallaher, and raising questions about the 

source of the funds spent by Flater were clearly in connection with an issue of public 

interest. As the United States Supreme Court explained in Citizens United v. Federal

Election Comm’n (2010) 558 U.S. 310, 367 (Citizens United), “ ‘provid[ing] the 

electorate with information’ about the sources of election-related spending . . . . help[s] 

citizens ‘ “make informed choices in the political marketplace.” ’ ” (See also id. at p. 368 

[“The First Amendment protects political speech; and disclosure permits citizens and 

shareholders to react to the speech of corporate entities in a proper way. This 

transparency enables the electorate to make informed decisions and give proper weight to 

different speakers and messages.”].) In California, the Political Reform Act (PRA) 

requires, among other things, that “[r]eceipts and expenditures in election campaigns 

should be fully and truthfully disclosed in order that the voters may be fully informed and 

improper practices may be inhibited.” (Gov’t Code § 81002, subd. (a); see also Agua 

Caliente Band of Cahuilla Indians v. Superior Court (2006) 40 Cal.4th 239, 244.) In 

Agua Caliente, the California Supreme Court observed, “The State of California has 

determined that the PRA is vitally important to its republican form of government.” (Id.

at p. 260; see also Griset v. Fair Political Practices Com. (1994) 8 Cal.4th 851, 862 [“the 

state’s interest in a well-informed electorate is a compelling one”].) Given the 

fundamental importance of the disclosure requirements, the media defendants’ articles, 

which informed the voting public about Flater’s spending and his connection to a 

 

5 The October 28 article stated that Flater had spent $130,375 as of that date, while the 

most any candidate had raised as of October 28 was $73,754, which was “far more than 

any of the other five candidates.”
12

prominent developer with likely business before the City Council, were indisputably of 

public interest.

Plaintiffs are misplaced in arguing the media defendants’ articles were required to 

be in connection to an ongoing controversy, because that requirement only applies where 

the issue is not of interest to the public at large. (D.C. v. R.R., supra, 182 Cal.App.4th at 

p. 1226 [“where the issue is of interest to only a private group, organization, or 

community, the protected activity must occur in the context of an ongoing controversy, 

dispute, or discussion, such that its protection would encourage participation in matters of 

public significance”]; see also Du Charme v. International Brotherhood of Electrical

Workers (2003) 110 Cal.App.4th 107, 119.) For the same reason, plaintiffs are misplaced 

in arguing that the media defendants “elevate[d] a private dispute to a public one by . . . 

publicizing that dispute.” The source of roughly $200,000 in spending during a city 

council election is inherently a matter of public interest. (Cf. Albanese v. Menounos

(2013) 218 Cal.App.4th 923, 936 [alleged theft by “celebrity stylist and style expert” not 

a matter of public interest]; Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 [the 

defendant’s “private campaign . . . to discredit [the] plaintiff in the eyes of a relatively 

small group of fellow collectors” not a matter of public interest].) Given the extent of 

Flater’s spending during the 2016 Santa Rosa City Council election, we firmly reject in 

this case plaintiffs’ assertion that “whether or not a specific individual made legal 

political contributions is a personal matter between that individual and the politician.” 

(See First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 788–789 [“Preserving 

the integrity of the electoral process, preventing corruption, and ‘sustain[ing] the active, 

alert responsibility of the individual citizen in a democracy for the wise conduct of 

government’ are interests of the highest importance.”].)
13

The trial court correctly concluded that plaintiffs’ claims arise out of activity 

protected by the anti-SLAPP statute and plaintiffs were required to demonstrate a 

probability of prevailing on their claims.6

III. Plaintiffs Failed to Show a Probability of Prevailing on Their Claims

Because plaintiffs’ claims arise out of protected activity, they bore the burden of 

demonstrating “ ‘ “that the complaint is both legally sufficient and supported by a 

sufficient prima facie showing of facts to sustain a favorable judgment if the evidence 

submitted by the plaintiff is credited.” ’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, 

88 (Navellier).) Plaintiffs’ evidence must be “competent and admissible.” (Tuchscher 

Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 

1219, 1236 (Tuchscher).) “We do not weigh credibility, nor do we evaluate the weight of 

the evidence. Instead, we accept as true all evidence favorable to [plaintiffs] and assess 

[defendants’] evidence only to determine if it defeats [plaintiffs’] submission as a matter 

of law.” (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 

699–700.)

“Defamation is an invasion of the interest in reputation. The tort involves the 

intentional publication of a statement of fact that is false, unprivileged, and has a natural 

tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 

Cal.App.4th 637, 645.) “[W]here disputed statements involve matters of public concern, 

the plaintiff in a defamation action bears the burden of showing the statements the 

defendant made were false.” (Melaleuca, Inc. v. Clark (1998) 66 Cal.App.4th 1344, 

1355; see also Nizam-Aldine v. City of Oakland (1996) 47 Cal.App.4th 364, 373

[explaining that, under the First Amendment, the “common law presumption that 

defamatory speech is false” is inapplicable where the allegedly defamatory statements 

“concern a matter of public interest”].)

 

6 Because section 425.16, subdivisions (e)(3) and (e)(4) apply to all of plaintiffs’ claims, 

we need not decide whether plaintiffs’ claims based on the November 5 article also fall 

within the scope of section 425.16, subdivision (e)(2).
14

In opposing defendants’ anti-SLAPP motion, plaintiffs submitted only two short 

declarations from Flater and Gallaher in order to demonstrate the falsity of the allegedly 

defamatory articles. Neither declaration addressed any campaign spending prior to the 

2016 election, so plaintiffs necessarily failed to make a prima facie showing of the falsity 

of statements in the articles relating to past conduct. For example, the Complaint alleges 

as defamatory language attributed to defendant McCuan in the October 28 article to the 

effect that Gallaher has a “pattern” of “ ‘sprinkling money around’ to family members to 

maximize payments to — and potentially influence with — council candidates.” The 

Complaint also emphasizes the portion of the article in which McCuan is quoted as 

saying, “Bill Gallaher uses his family as a shell game, and has for a long time, in order to 

channel support to candidates of his liking.” Plaintiffs failed to make a prima facie 

showing of falsity of those and any other statements in defendants’ articles that made 

reference to plaintiffs’ conduct prior to the 2016 election.7 (See Fashion 21 v. Coalition

for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1153 

[defendant’s “failure to produce any evidence on this issue, an issue on which it would 

bear the burden of proof at trial, leads us to conclude [defendant] does not have a 

reasonable probability of success on its defamation cause of action because it cannot 

prove the statements . . . were false”].)

Furthermore, although plaintiffs’ declarations purport to address the 2016 election, 

neither declaration addresses the precise alleged implied defamatory assertion repeatedly 

made in the articles—that Gallaher was the source of funds for Flater’s independent 

expenditures. Instead, Flater averred in his declaration that “[n]o one, including, Mr. 

William Gallaher, ever provided me or my wife with any money to donate to any political 

candidates during the 2016 Santa Rosa City Council race.” Similarly, Gallaher averred, 

“I did not give Mr. Flater or his wife, Molly Flater, money for any political contributions

they may have made during the 2016 Santa Rosa City Council race.” However, the 

 

7 McCuan’s statements can also be read to encompass the 2016 election, and later in this 

part of the decision we address whether plaintiffs made a prima facie showing of falsity 

based on any alleged implied assertions by McCuan regarding the 2016 election.
15

allegedly defamatory focus of the articles was not Flater’s modest $500 campaign 

contribution/donation during the 2016 election. Instead, the “ ‘ “the gist, the sting” ’ ” 

(Vogel, supra, 127 Cal.App.4th at p. 1021) of the alleged defamatory articles was the 

alleged implied assertion that Gallaher was the source of Flater’s “unprecedented” 

independent spending on “canvassing and mailers,” which was “separate from money the 

candidates raise[d] themselves.”

Indeed, all five of the media defendants’ articles emphasized the distinction 

between donations/contributions and independent expenditures, and all emphasized 

Flater’s “record” independent spending that “accounts for more than a third of the total in 

the race, including spending by candidates’ campaigns.” For example, the October 28 

article noted that “Local campaign finance rules cap individual donations directly to 

candidate campaigns at $500 per donor per election cycle. But there is no limit to the 

amount of money that individuals or organizations can spend on independent 

expenditures, as long as they report the spending and don’t collaborate with candidate 

campaigns.” The article then quoted a candidate who stated, in reference to the spending 

by Flater and an anti-rent control group, “ ‘We’ve talked for years about the effect of 

Citizens United on money in politics, and I think this is really Santa Rosa’s first taste of it 

at the local level.’ ” Another candidate was described to have “said he worked hard to 

raise money from a broad cross-section of the community over the past year. To have 

other candidates benefit from independent expenditures by wealthy benefactors late in the 

race is ‘frustrating’ and undermines the local democratic process.”

The distinction between independent spending on an election and 

contributing/donating money to a candidate is at the heart of the decision in Citizens 

United, supra, 558 U.S. 310. There, the court compared “direct contributions” and 

“independent expenditures.” (Id. at p. 357.) The court explained that “limits on direct 

contributions” had been sustained “in order to ensure against the reality or appearance of 

corruption.” (Ibid.) But, the court reasoned, independent expenditures were different 

because “ ‘[t]he absence of prearrangement and coordination of an expenditure with the 

candidate or his agent not only undermines the value of the expenditure to the candidate, 
16

but also alleviates the danger that expenditures will be given as a quid pro quo for 

improper commitments from the candidate.’ Limits on independent expenditures . . . 

have a chilling effect extending well beyond the Government’s interest in preventing quid 

pro quo corruption. The anticorruption interest is not sufficient to displace the speech 

here in question.” (Ibid.) Although the soundness of the Supreme Court’s reasoning has 

been the subject of much debate,

8

the fact that the distinction between independent 

expenditures and campaign contributions was at the heart of Citizen United’s

constitutional analysis further supports our conclusion that plaintiffs’ showing that 

Gallaher was not the source of Flater’s 2016 campaign contributions/donations does not

rebut defendants’ alleged implied assertion that Gallaher was the source of Flater’s 

independent spending.

In their appellate briefing, plaintiffs do not deny independent expenditures are 

materially distinct from campaign contributions/donations. Instead, they assert “Flater’s 

declaration addressed both contributions and independent expenditures.” (Bolding in 

original replaced with italics.) However, rather than citing to and quoting from the Flater 

declaration submitted in opposition to the anti-SLAPP motion, plaintiffs cite to a prior

Flater declaration submitted in support of plaintiffs’ motion to conduct discovery. In that 

declaration, dated May 10, 2017, Flater averred that “The money I donated to political 

candidates or the independent expenditure campaign during the 2016 Santa Rosa City 

Council elections belonged to me and my wife,” and that “No one, including Mr. 

Gallaher, ever provided me with any money to donate to any political candidates or the 

independent expenditure campaign during the 2016 Santa Rosa City Council elections.” 

 

8

“In the few years since its issuance, Citizens United’s holding concerning the speech 

rights of corporations has generated considerable democratic debate, receiving criticism 

in the presidential State of the Union address, giving rise to resolutions in Congress to 

amend the Constitution, and sparking calls for reconsideration within the United States 

Supreme Court itself. Many have agreed with the Supreme Court majority, while others 

have concluded the Constitution must be amended to permit renewed restraints on 

corporate involvement in popular elections.” (Howard Jarvis Taxpayers Assn. v. Padilla

(2016) 62 Cal.4th 486, 495.)
17

In contrast, in the May 17 declaration subsequently submitted in opposition to the antiSLAPP motion, Flater averred only that “the donations I made during the 2016 Santa 

Rosa City Council race were made on my behalf alone” and that “[n]o one, including, 

Mr. William Gallaher, ever provided me or my wife with any money to donate to any 

political candidates during the 2016 Santa Rosa City Council race.” In their appellate 

briefing, plaintiffs fail to acknowledge the discrepancy, and they certainly have provided 

no authority that this court can ignore the May 17 declaration actually submitted in 

opposition to defendants’ motion and instead rely on the prior declaration. (See § 425.16, 

subd. (b)(2) [“In making its determination, the court shall consider the pleadings, and 

supporting and opposing affidavits stating the facts upon which the liability or defense is 

based.”].) To the contrary, the inclusion of the reference to independent expenditures in 

the May 10 declaration suggests that its omission from the May 17 declaration was 

intentional—for all practical purposes, it is a concession that plaintiffs cannot prove the 

falsity of the alleged implied assertion that Flater’s spending was funded by Gallaher or 

another source. (See Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1262 [plaintiff 

“tacitly concede[d]” truth of undisputed portion of alleged defamatory statement]; Vogel, 

supra, 127 Cal.App.4th at p. 1022 [plaintiff’s “failure to plainly refute the defamatory 

imputation by stating the true facts may be understood to imply” the truth of the implied 

assertion].)

During oral argument, plaintiffs argued for the first time that the references to 

donations and contributions in the Flater and Gallaher declarations encompass 

independent expenditures. In essence, they argue independent expenditures are a kind of 

political contribution or donation on a candidate’s behalf. That argument is unavailing as 

to Flater’s May 17 declaration when viewed in light of his May 10 declaration. As to 

Gallaher, plaintiffs’ argument makes his declaration at best ambiguous. Under their

reasoning, Gallaher’s averment that he did not give Flater “money for any political 

contributions” could be read either as denying funding only direct donations or as 

denying funding both direct donations as well as the independent expenditures that are 

the focus of defendants’ articles.
18

However, even if we treat Gallaher’s declaration as ambiguous, it would not be 

sufficient to satisfy plaintiffs’ burden of making “ ‘ “a sufficient prima facie showing of 

facts to sustain a favorable judgment.” ’ ” (Navellier, supra, 29 Cal.4th at pp. 88–89.) If 

treated as ambiguous, Gallaher’s declaration is consistent with both the truth and falsity 

of the alleged implied defamation in the media defendants’ articles. (See Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 852 [in antitrust action, “[a]mbiguous 

evidence or inferences showing or implying conduct that is as consistent with permissible 

competition by independent actors as with unlawful conspiracy by colluding ones” is 

insufficient to show a triable issue in summary judgment context].) More to the point, 

the “ambiguity [is] striking considering the presumptive ease with which [Gallaher] could 

have stated the true facts.” (Vogel, supra, 127 Cal.App.4th at p. 1022; accord Industrial 

Waste & Debris Box Services, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1160

(Industrial Waste).) Given the focus of the media defendants’ articles on independent 

expenditures and the sharp distinction in the law between independent expenditures and 

direct donations/contributions, it was incumbent on plaintiffs to unambiguously deny 

Gallaher’s funding of the independent expenditures in order to make a prima facie 

showing of falsity. And it would have been extremely simple for Gallaher to do so if, in 

fact, he did not fund the independent expenditures. Accordingly, Gallaher’s “failure to 

plainly refute the defamatory imputation by stating the true facts may be understood” as 

an implied concession of the truth of the alleged defamation; at a minimum, his 

declaration “[c]ertainly . . . was insufficient to establish his ability to prove the substantial 

falsity of” defendants’ articles. (Vogel, at p. 1022.)

Although plaintiffs fail to clearly argue the point, their declarations did dispute an 

arguable implied assertion by defendant McCuan in the October 28 and 29 articles that 

the $1,000 donated by Flater and his wife in the 2016 election came from Gallaher. 

However, that was part of McCuan’s overall assertion that “for a long time” Gallaher had 

a “pattern” of “ ‘sprinkling money around’ to family members to maximize payments to 
19

— and potentially influence with — council candidates.”9 To the extent that included an 

implied assertion of wrongdoing, the assertion encompassed Gallaher’s pre-2016 

conduct, the 2016 donations by Flater and his wife, and Flater’s 2016 independent 

spending, of which the $1,000 donation constituted a trivial amount. As explained in 

Vogel, supra, 127 Cal.App.4th 1006, “ ‘Minor inaccuracies do not amount to falsity so 

long as “the substance, the gist, the sting, of the libelous charge be justified.” ’ ” (Id. at p. 

1021, quoting Masson v. New Yorker Magazine (1991) 501 U.S. 496, 517 (Mason); 

accord Jackson v. Mayweather, supra, 10 Cal.App.5th at p. 1262.) 

In the present case, the sting of McCuan’s alleged implied assertion was that 

Gallaher had a “long time” pattern of misconduct that continued in Flater’s 2016 

independent expenditures; it was that “unprecedented spending” that was the 

overwhelming focus of the October 28 article (and all the other articles). Plaintiffs’ 

declarations, which did not even attempt to address Gallaher’s pre-2016 conduct or the 

2016 independent spending, did not demonstrate the “substantial falsity” of McCuan’s 

statement. (Vogel, supra, 127 Cal.App.4th at p. 1022; accord Industrial Waste, supra, 4 

Cal.App.5th at p. 1158.) “ ‘Put another way, the statement is not considered false unless 

it “would have a different effect on the mind of the reader from that which the pleaded 

truth would have produced.” ’ ” (Vogel, at p. 1021, quoting Masson, supra, 501 U.S. at p. 

517; accord Jackson v. Mayweather, supra, 10 Cal.App.5th at pp. 1262–1263; Industrial

Waste, at p. 1164.) In the present case, the statement attributed to McCuan would not 

have cast plaintiffs in a meaningfully less negative light had McCuan made it clear he did 

not know the source of the $1,000 donated by Flater and his wife in 2016, which amount 

was insignificant in comparison to the $130,375 Flater had spent by the end of October.

 

9 When analyzing whether the publication is defamatory, “ ‘[t]he publication in question 

may not be divided into segments and each portion treated as a separate unit; it must be 

read as a whole in order to understand its import and the effect that it was calculated to 

have on the reader, and construed in the light of the whole scope and apparent object of 

the writer, considering not only the actual language used, but the sense and meaning that 

may be fairly presumed to have been conveyed to those who read it.’ ” (Bartholomew v. 

YouTube, LLC. (2017) 17 Cal.App.5th 1217, 1227–1228.)
20

The decision in Jackson v. Mayweather, supra, 10 Cal.App.5th 1240, is 

instructive. The parties in the case were former boxing champion Floyd Mayweather, Jr.

and his former romantic partner, Shantel Jackson, an “aspiring model and actress.” (Id. at 

pp. 1245–1246.) Jackson, as relevant here, sued Mayweather due to comments he made 

during a radio interview that “she had undergone extensive cosmetic surgery procedures.” 

(Id. at p. 1247.) Mayweather filed an anti-SLAPP motion, and Jackson averred in 

opposition to the motion that “he had falsely stated she had surgery to change her nose, 

chin and cheeks,” which “tacitly concede[d]” that she had surgery on her breasts and 

buttocks. (Id. at p. 1262.) The court of appeal held Jackson failed to make a prima facie 

showing of falsity because she “presented no evidence in opposition to Mayweather’s 

motion, expert or otherwise, that would permit a finder of fact” to find “that surgical 

enhancement of the face is different for the reputation of an actress or model from the 

augmentation or sculpting of other parts of her body.” (Id. at p. 1263.) Accordingly, she 

failed to show Mayweather’s comments had a different effect on the minds of listeners 

than the truth would have produced. (Ibid.) The same is true in the present case with 

respect to any false implied assertion that Gallaher was the source of the funds for the 

$1,000 donated by Flater and his wife in 2016.10

“The sine qua non of recovery for defamation . . . is the existence of falsehood.” 

(Old Dominion Branch No. 496 v. Austin (1974) 418 U.S. 264, 283.) “[W]hile it would 

have been a simple matter to do so, plaintiff[s] submitted no declaration” showing the 

falsity of the actual allegedly defamatory focus of the media defendants’ articles. 

(Brodeur v. Atlas Entertainment, Inc. (2016) 248 Cal.App.4th 665, 679.) Because 

plaintiffs failed to make a prima facie showing that defendants’ allegedly defamatory 

statements were false, defendants’ anti-SLAPP motion should have been granted in its 

entirety with respect to plaintiffs’ defamation claim. (See Nygård, supra, 159 

Cal.App.4th at p. 1054 [“[I]f [the defendant’s] version of events was inaccurate, plaintiffs 

 

10 At oral argument, plaintiffs’ counsel appeared to concede that the sting of defendants’ 

articles was the alleged implied assertion that Gallaher was the source of the funds for 

Flater’s independent expenditures.
21

could have submitted prima facie evidence of its falsity through the declaration of 

[plaintiff’s chairman and founder]. Because plaintiffs did not do so, we conclude that 

plaintiffs failed to carry their burden of making a prima facie showing of falsity.”]; 

Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 33 [the plaintiff failed to demonstrate a 

probability of prevailing because “[b]y failing to deny the charge . . . [plaintiff] has tacitly 

admitted that the challenged statement was substantially true”]); Carver v. Bonds (2005) 

135 Cal.App.4th 328, 357–358 [“Given all of what plaintiff does not dispute or 

effectively controvert,” plaintiff “failed to make a prima facie case that the article’s gist 

was not substantially true”].)

It is also necessary to address plaintiffs’ libel per se and false light invasion of 

privacy causes of action. The trial court granted defendants’ anti-SLAPP motion with 

respect to those claims “on the grounds they are duplicative to the” defamation claim. 

Plaintiffs argue on appeal that the trial court erred in dismissing those causes of action on 

that ground. However, plaintiffs do not argue that those claims arise out of different and 

unprotected conduct, or that those causes of action do not require a showing of falsity. 

Indeed, plaintiffs suggest the “general rule” is “that if one of the causes of action survives 

a special motion to strike, the other should as well, and vice versa.” Accordingly, the 

libel per se and false light causes of action are subject to the anti-SLAPP statute and 

plaintiffs’ failure to make a prima facie showing of falsity is fatal them as well as the 

defamation cause of action. We will reverse in part and remand with instructions that the 

trial court grant defendants’ motion and consider any request for attorney fees, including 

fees on appeal. (§ 425.16, subd. (c); Varian Medical Systems, Inc. v. Delfino (2005) 35 

Cal.4th 180, 186; Tuchscher, supra, 106 Cal.App.4th at p. 1248.)11

 

11 Because we conclude plaintiffs failed to make a prima facie showing of the falsity of 

defendants’ articles, we need not and do not consider the propriety of the trial court’s 

rulings about whether various statements in the various articles were or were not 

actionable on various grounds, including whether they were defamatory, provably false, 

privileged, or within the scope of a retraction request. Neither need we determine 

whether the trial court was correct in its rulings regarding whether Flater and Gallaher 

were limited purpose public figures. Neither need we consider the various evidentiary 
22

DISPOSITION

The trial court’s order on defendants’ Section 425.16 motion to strike is affirmed 

in part and reversed in part. The matter is remanded with directions that the court grant

the motion in full. On remand, the trial court should consider any request for an award of 

attorney fees. Costs on appeal are awarded to defendants.

The July 2017 petition for writ of mandate/prohibition filed by the media 

defendants is denied as moot. Each party shall bear its own costs in the writ proceeding. 

 

issues raised by the parties on appeal, because none of the disputed evidence is material 

to our decision. For the same reason, the media defendants’ January 22, 2018 request for 

judicial notice is denied. Finally, we deny as moot the media defendants’ July 2017 

petition for writ relief challenging the trial court’s order granting plaintiffs discovery on 

the issue of whether defendants acted with malice in publishing the challenged statements 

about Flater.
23

SIMONS, J.

We concur.

JONES, P.J.

BURNS, J.

(A151968, A152008, A152320)