Filed 12/11/14 Chryssikos v. MCC Radio CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

PETER PAUL CHRYSSIKOS, JR., 

 Plaintiff and Respondent, 

 v. 

MCC RADIO, LLC et al., 

 Defendants and Appellants. 

 G049831 

 (Super. Ct. No. INC1109827) 

 O P I N I O N 

 Appeal from an order of the Superior Court of Riverside County, Jeffrey L. 

Gunther, Judge. (Retired judge of Sacramento Super. Ct. assigned by the Chief Justice 

pursuant to art. VI, § 6 of the Cal. Const.) Motion to receive additional evidence. 

Motion for judicial notice. Motions denied. Order affirmed. 

 Mueller/Olivier/Whittaker, Nethery/Mueller/Olivier, Martin A. Mueller, 

Vincent R. Whittaker and Julie A. Rosser for Defendants and Appellants. 

 Slovak, Baron, Empey, Murphy & Pinkney, and Shaun M. Murphy for 

Plaintiff and Respondent. 

* * * 
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 Plaintiff Peter Paul Chryssikos, Jr., filed a complaint against defendants 

MCC Radio, LLC, erroneously sued as Morris Communications Group, LLC, doing 

business as Desert Radio Group, Lee Rayburn, Jay White, and John McMullen for 

defamation, invasion of privacy, and intentional infliction of emotional distress. The trial 

court denied defendants’ special motion to strike these causes of action under the antiSLAPP (Strategic Lawsuit Against Public Participation) statute. (Code Civ. Proc., § 

425.16; all further undesignated statutory references are to this code.) 

 Defendants contend (1) the court erroneously found plaintiff was not a 

limited purpose public figure required to establish malice; (2) even if plaintiff was a 

private figure, no reasonable person could find they acted with malice; and (3) plaintiff 

failed to carry his burden of establishing a probability of success on his causes of action. 

Without deciding whether plaintiff was a private or limited purpose public figure, we 

conclude he has satisfied his burden of showing malice in opposition to defendants’ antiSLAPP motion. We affirm the order and deny as unnecessary to our decision both 

plaintiff’s motion to receive additional evidence on appeal and defendants’ motion for 

judicial notice. 

FACTS AND PROCEDURAL BACKGROUND 

 The genesis of this action is an article published in the Desert Star Weekly 

about a business operating out of the home of Karl Baker, a then-sitting councilman for 

the City of Desert Hot Springs (City), having received $40,000. The business was an 

alarm-monitoring company owned by plaintiff, who lived with Baker and had a contract 

with the City for alarm-monitoring and security services. 

 The day after the article was published, Rayburn, a local radio talk show 

host, began a series of broadcasts themed “Who is Pete Chryss?” In them, Rayburn 
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accused plaintiff of, among other things, being investigated by the FBI for child 

pornography, committing credit card fraud and identity theft, making death threats, 

defrauding the City, as well as failing to provide child support and physically abusing his 

child’s mother approximately 20 years ago. 

 Plaintiff sued Rayburn, the radio station he worked for (MCC Radio), its 

general manager (White) and its director of news, talk and sports programming 

(McMullen) for defamation per se of a private matter of private and public concern, 

invasion of privacy for disclosure of private facts, invasion of privacy for appropriation 

of name for a commercial purpose, and intentional infliction of emotional distress. 

Defendants moved to strike the complaint under section 426.16. The court denied the 

motion, finding plaintiff was not a limited purpose public figure because he had not thrust 

himself into the public eye. 

DISCUSSION 

1.0 Introduction

 Under section 425.16, subdivision (b)(1), a cause of action against a person 

arising from an act in furtherance of a constitutionally protected right of free speech may 

be stricken unless the plaintiff establishes the probability of prevailing on the claim. The 

statute “requires the court to engage in a two-step process. First, the court decides 

whether the defendant has made a threshold showing that the challenged cause of action 

is one arising from protected activity. . . . If the court finds such a showing has been 

made, it then determines whether the plaintiff has demonstrated a probability of 

prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 

Cal.4th 53, 67.) 
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 We review the court’s ruling de novo, considering “‘“the pleadings, and 

supporting and opposing affidavits . . . upon which the liability or defense is based.” 

[Citation.] However, we neither “weigh credibility [nor] compare the weight of the 

evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and 

evaluate the defendant’s evidence only to determine if it has defeated that submitted by 

the plaintiff as a matter of law.”’” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326.) 

“This is because the anti-SLAPP statute does not require the plaintiff ‘“to prove the 

specified claim to the trial court”; rather, so as to not deprive the plaintiff of a jury trial, 

the appropriate inquiry is whether the plaintiff has stated and substantiated a legally 

sufficient claim.’ . . . [¶] ‘If the plaintiff “can show a probability of prevailing on any 

part of [his or her] claim, the cause of action is not meritless” and will not be stricken; 

“once a plaintiff shows a probability of prevailing on any part of [his or her] claim, the 

plaintiff has established that [his or her] cause of action has some merit and the entire 

cause of action stands.”’” (Burrill v. Nair (2013) 217 Cal.App.4th 357, 379 (Burrill).) 

2.0 Protected Activity

 In the first step of the anti-SLAPP analysis, “the critical point is whether 

the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s 

right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) 

An “‘act in furtherance of a person’s right of petition or free speech under the United 

States or California Constitution in connection with a public issue’ includes: . . . (3) any 

written or oral statement or writing made in a place open to the public or a public forum 

in connection with an issue of public interest.” (§ 425.16, subd. (e)(3).) The trial court 

found defendants’ conduct fell within this category. 

 Defendants thus focus on the ruling on the second step, contending the 

court erred in ruling plaintiff had met his burden to show a probability of prevailing. 
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Because we disagree, we need not address plaintiff’s assertion that defendants’ 

statements did not concern an issue of public interest. (Benach v. County of Los Angeles

(2007) 149 Cal.App.4th 836, 845, fn. 5 [issues unnecessary to resolution of appeal need 

not be addressed].) 

3.0 Probability of Prevailing

3.1 Defamation Per Se 

 Plaintiff’s first two causes of action are for defamation per se. 

“[D]efamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) 

unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’” 

(Taus v. Loftus (2007) 40 Cal.4th 683, 720.) It “has two forms, libel and slander. 

[Citation.] Defamatory publications that are made ‘by writing, printing, picture, effigy, 

or other fixed representation to the eye,’ are considered libel. [Citation.] Slander 

involves defamatory publications that are ‘orally uttered,’ and also includes 

‘communications by radio or any mechanical or other means.’” (Burrill, supra, 217 

Cal.App.4th at p. 382.) “[C]ertain slanderous statements are considered slanderous per 

se, and actionable without proof of special damage . . . ‘including statements (1) charging 

the commission of crime or (2) tending directly to injure a plaintiff in respect to the 

plaintiff’s [profession, trade, or] business by imputing something with reference to the 

plaintiff’s [profession, trade, or] business that has a natural tendency to lessen its 

profits.’” (Ibid.) To establish a defamation claim, a plaintiff who is a public figure or a 

limited purpose public figure also “‘must show that the defendant acted with actual 

malice in publishing the defamatory communication.’” (Cabrera v. Alam (2011) 197 

Cal.App.4th 1077, 1091 (Cabrera).) 

 Here, one of the alleged defamatory statements made by defendants 

implicitly charged plaintiff with the crime of making death threats (Pen. Code, § 422, 
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subd. (a)) against the editor and publisher of the Desert Star Weekly for initiating the 

broadcasts. Rayburn stated over the radio: “You see, on Desert Star Weekly’s homepage 

today . . . there is a story about the . . . editor and publisher . . . receiving numerous 

explicit death threats . . . . [B]ut, if the actual reporters doing the reporting and fearing 

for their safety and receiving explicit death threats that you can read right now . . . as a 

result of actually just being the messenger . . . why isn’t anybody acting on this? A 

convicted felon [reasonably interpreted as referring to plaintiff] who is operating security 

systems for the City of Desert Hot Springs? Out of the home of a sitting city 

councilmember? A convicted felon who would actually install, according to his former 

employer, a security system in the home of a city manager? And then, the place where 

this investigation started, with an open record’s request from the Desert Star Weekly, 

now receiving explicit death threats . . . .” 

 The implication is defamatory per se. It was also false because Rayburn 

knew Charlie Hinkel had made the death threats, not plaintiff. 

 Defendants contend plaintiff was a limited purpose public figure required to 

establish malice. Assuming without deciding that he was, he has sufficiently shown 

malice occurred. “In opposing an anti-SLAPP motion, a defamation plaintiff need not 

establish malice by clear and convincing evidence, the standard applicable at trial. 

Rather, [he] must meet [his] minimal burden by introducing sufficient facts to establish a 

prima facie case of actual malice; in other words, [he] must establish a reasonable 

probability that [he] can produce clear and convincing evidence showing that the 

statements were made with actual malice.” (Young v. CBS Broadcasting, Inc. (2012) 212 

Cal.App.4th 551, 563.) 

 Actual malice can be established by, among other things, proof of “‘a 

defendant’s recklessness or of his knowledge of falsity.’” (Reader’s Digest Assn. v. 

Superior Court (1984) 37 Cal.3d 244, 257.) “‘The question whether the evidence in the 
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record in a defamation case is sufficient to support a finding of actual malice is a question 

of law.’” (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 17 [110 S.Ct. 2695, 111 

L.Ed.2d 1] (Milkovich).) 

 During oral argument, plaintiff asserted this standard was met by the 

implication about the death threats because at the time Rayburn made the statements he 

had actual knowledge that plaintiff did not make them. Rayburn had the article about the 

death threats in his possession the day before the broadcast. The article specifically 

identified Hinkel as the source of the death threats. Yet, Rayburn implied plaintiff was 

the one who made the threats and never told his audience that it was Hinkel who had 

done so. 

 Defendants responded that Rayburn did not specifically accuse plaintiff of 

making the death threats. But, “the privilege of fair comment [does] not extend to ‘a 

false statement of fact, whether it was expressly stated or implied . . . .’” (Milkovich, 

supra, 497 U.S. at p. 19.) 

 Defendants also claimed Rayburn’s statements constituted nothing more 

than hyperbole. We disagree. The hallmark of protected rhetorical hyperbole is that it 

does not imply a provably false factual assertion. (Milkovitch, supra, 497 U.S. at p. 21; 

Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1048.) Saying someone 

“perjured himself in a judicial proceeding” is “sufficiently factual to be susceptible of 

being proved true or false.” (Milkovitch, at p. 21.) It “is not the sort of loose, figurative, 

or hyperbolic language which would negate the impression that the writer was seriously 

maintaining that petitioner committed the crime of perjury.” (Ibid.) Neither is implying 

that plaintiff made death threats against a newspaper editor and publisher. In fact, the 

evidence presented affirmatively showed Rayburn knew plaintiff had not made the death 

threats but nevertheless implied that he had. “The dispositive question [is] whether a 
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reasonable factfinder could conclude that the statements in [Rayburn’s broadcast] imply 

an assertion that” plaintiff made the death threats. (Ibid.) The answer is yes. 

 Plaintiff thus met his minimal burden of making “‘“‘a sufficient prima facie 

showing of facts to sustain a favorable judgment’”’” on his defamation per se claims. 

(Burrill, supra, 217 Cal.App.4th at p. 379.) Because he demonstrated the “cause[s] of 

action ha[ve] some merit[,] . . . the entire cause[s] of action stand[ and we] . . . need not 

engage in the time-consuming task of determining whether the plaintiff can substantiate 

all theories presented within a single cause of action and need not parse the cause of 

action so as to leave only those portions it has determined have merit.” (Mann v. Quality 

Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.) 

3.2 Invasion of Privacy – Public Disclosure of Private Facts

 The tort of invasion of privacy in the publication of private facts requires 

“(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable 

to the reasonable person and (4) which is not of legitimate public concern.” (Diaz v. 

Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126.) 

 The private facts plaintiff claims defendants publicly disclosed was his 

“sexual relationship with Carrie Tosi Johnson [almost 20 years ago], their child out of 

wedlock, and that there was a domestic violence issue.” We agree the relationship 

between Johnson and plaintiff was private and not one in which the public had a 

legitimate concern. A reasonable person would find the undisputed public release of such 

information offensive and objectionable. And although the domestic violence issue was 

arguably a matter of public concern, it stems from the private relationship between 

Johnson and plaintiff. This suffices for a prima facie showing the claim has merit. 
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 Defendants claim the statements were newsworthy because plaintiff’s 

fitness to perform security related services for the City was at issue. But they do not 

explain how plaintiff’s relationship with Johnson related to that. 

 

3.3 Invasion of Privacy – Appropriation of Name for Commercial Purpose

 Civil Code section 3344, subdivision (a) provides that “[a]ny person who 

knowingly uses another’s name . . . in any manner . . . for purposes of advertising . . . 

without such person’s prior consent, . . . shall be liable for any damages sustained by the 

person or persons injured as a result thereof.” 

 Defendants assert their conduct was protected under Civil Code 3344, 

subdivision (d), which provides that “use of a name . . . in connection with any 

news . . . shall not constitute a use for which consent is required under subdivision (a).” 

But plaintiff’s cause of action is not based on the use of his name in connection with 

news broadcasts. Rather, it was in connection with a promotional campaign for their 

radio station in which Rayburn stated “all you have to do is stop by and ask, ‘Who is Pete 

Chryss?’ Keep that – that’s your key phrase: ‘Who is Pete Chryss?’ . . . [W]e’ve got a 

complimentary buffet for two for . . . anybody who stops by and asks, ‘Who is Pete 

Chryss?’” By doing so, defendants used plaintiff’s name without consent for advertising 

purposes. 

3.4 Intentional Infliction of Emotional Distress

 The elements of a cause of action for intentional infliction of emotional 

distress are: “‘(1) extreme and outrageous conduct by the defendant with the intention of 

causing, or reckless disregard of the probability of causing, emotional distress; (2) the 

plaintiff’s suffering severe or extreme emotional distress; and (3) actual and proximate 
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causation of the emotional distress by the defendant’s outrageous conduct. 

[Citations.] . . . Conduct to be outrageous must be so extreme as to exceed all bounds of 

that usually tolerated in a civilized community.’” (Davidson v. City of Westminster

(1982) 32 Cal.3d 197, 209.) 

 Defendants’ statements about plaintiff satisfy the requirement of outrageous 

conduct for purposes of the anti-SLAPP motion. Although defendants argue the facts are 

insufficient because malice has not been shown, we have already concluded otherwise in 

this opinion. Plaintiff thus met his burden to establish a probability he will prevail. 

DISPOSITION 

 The order is affirmed. Plaintiff shall recover his costs on appeal. 

 

 RYLAARSDAM, ACTING P. J. 

WE CONCUR: 

MOORE, J. 

ARONSON, J.