From last week’s California Court of Appeal decision in Cusi v. Gibson, written by Alameda Superior Court Judge Michael Markman, joined by Justices Therese Stewart and Marla Miller:
Alison Gibson’s appeal from the denial of her anti-SLAPP motion concerns the consequences of her demonstrably false online speech. Ramon Cusi sued Gibson after she had posted in a large Facebook community group that Cusi had been “fired for sexual harassment” from his position as principal of her daughter’s middle school, as well as from a prior position at another school. Neither school, however, had terminated Cusi “due to allegations or a legal finding of sexual harassment.” Cusi’s attorney tried to get Gibson to take the post down, but Gibson instead posted an edited version of her comments and Gibson’s husband left the attorney a voicemail refusing to take further action…..
The court concluded that Cusi introduced enough evidence of knowing or reckless falsity for the case to go forward, though the “demonstrably false online speech” reference in the first sentence above suggests that the court thought the case on falsity was open and shut. Here’s the discussion of knowledge or recklessness:
Before Gibson made her second post, the PIO [Public Information Officer] for the VUSD [Vacaville Unified School District] had already posted a comment on Gibson’s original post that Cusi had resigned, and unequivocally explaining that “Absolutely no report or claim about harassment or misconduct involving Dr. Cusi and any VUSD employee or students has ever been made.” Gibson not only saw the explanation, but commented on it. Cusi’s attorney had also messaged Gibson, notifying her that her statements were not true or accurate. Gibson’s husband called Cusi’s attorney in response, profanely rejecting counsel’s request to stop saying that Cusi had been terminated by VUSD. This is ample evidence to show minimal merit on the element of actual malice in Gibson’s second post. Given the information provided by Cusi’s attorney and the PIO, it is probable Cusi can provide evidence that Gibson should objectively have had “serious doubts” regarding the truth of her statements.
At oral argument, Gibson’s counsel argued that even if Cusi had shown minimal merit on actual malice as to the second post, there was insufficient evidence regarding actual malice as to the first post (made before the attorney and PIO comments)…. [But] we conclude that Cusi met his burden to show minimal merit on the element of actual malice even on Gibson’s first post. Gibson identified her daughter as a “source” for the information she posted about Cusi. Of course, Gibson’s daughter was one of Cusi’s middle school students, and it is reasonable to infer that she was simply repeating middle school rumors. Gibson’s declaration said she had another source, an adult acquaintance of her husband somehow associated with the middle school, but she does not identify the source by name, title, or job description. Without more information from Gibson concerning her alleged adult source, it is also reasonable to conclude there is at least minimal merit to the claim that Gibson wrote her posts with reckless disregard for their truth. (See Reader’s Digest, supra, 37 Cal.3d at p. 257 [recklessness “may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports”]; Grewal v. Jammu (2011) 191 Cal.App.4th 977, 994 [relying on a source with a criminal history and reputation for dishonesty would be sufficient to show reckless disregard for purposes of anti-SLAPP].)
Gibson also declared that she relied on the 2016 Davis Vanguard article relating to a sexual harassment administrative claim involving him in Davis. The evidence reflects, however, that Gibson had incorrectly interpreted that article. It never said that Cusi had been terminated by anyone for sexual harassment (or that VUSD had hired Cusi knowing he had been terminated for sexual harassment). Gibson’s serious misreading of this article, coupled with her reliance on an unreliable source, could support an inference of recklessness on the first post….
We also note that Cusi did not take discovery before Gibson filed her anti-SLAPP motion, leaving Gibson’s subjective intent very much an open question. Intent often must be accomplished through circumstantial evidence and inferences rather than direct evidence. Gibson’s own intent is uniquely within her personal knowledge, making it difficult to allege with particularity or to develop evidence without even a deposition.
Cusi contends that the language in Gibson’s Facebook posts and comments about Cusi were angry and hostile. He also notes that Gibson’s husband’s reaction on Gibson’s behalf to Cusi’s attorney’s take-down request was rude, intemperate, and angry. His voicemail message saying that Cusi’s concern about Gibson’s posts concerning his alleged sexual harassment were “absolutely the most hilarious fucking thing I have ever heard of in my entire life” could well indicate that Gibson was acting out of anger and personal animosity to Cusi.
Gibson’s ex post facto declaration professing that she did not bear ill will toward Cusi is insufficient to defeat Cusi’s claim at this stage, especially before any discovery has yet taken place concerning her subjective intent. “[A] defendant cannot ‘automatically insure a favorable verdict by testifying that he published with a belief that the statements were true. The finder of fact must determine whether the publication was indeed made in good faith. Professions of good faith will be unlikely to prove persuasive, for example, where a story is fabricated by the defendant, is the product of his imagination, or is based wholly on an unverified anonymous telephone call. Nor will they be likely to prevail when the publisher’s allegations are so inherently improbable that only a reckless man would have put them in circulation.'”
Cusi presented evidence that his attorney had asked Gibson to delete her original post because it was false. Gibson continued to tell the Facebook Vacaville Crime & Community Info group that Cusi had been fired for sexual harassment even after Gibson was warned she was wrong. Further, the school district PIO twice posted that Gibson’s assertions were false, even making available a letter from Cusi’s former school in Davis noting that he had not been terminated due to sexual harassment. Yet Gibson waited to remove her posts from Facebook until sometime after the Vaca Pena vice principal sent a letter to parents a few days later….
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