Posted by Mike B. on 12/13/07

More | Report Post

Keep in mind, this is the opinion of an appellate court who
is affirming the decision of the trial court. Read the
WHOLE opinion and digest it before going off half-cocked:

Court of Appeal, Fourth District, Division 1, California.
Bruce J. KELMAN et al., Plaintiffs and Respondents,
v.
Sharon KRAMER, Defendant and Appellant.

No. D047758.
(Super.Ct.No. GIN044539).

Nov. 16, 2006.

APPEAL from an order of the Superior Court of San Diego
County, Michael B. Orfield, Judge. Affirmed.
Keith Scheuer, Marina Del Rey, CA, for Plaintiffs and
Respondents.

William J. Brown, Encinitas, CA, for Defendant and
Appellant.

McCONNELL, P.J.

*1 Sharon Kramer appeals an order denying her anti-SLAPP
(strategic lawsuit against public participation) motion
(Code Civ. Proc.,FN1 § 425.16) to strike a complaint for
libel by Bruce J. Kelman and GlobalTox, Inc.
(GlobalTox).FN2 She contends the trial court erred in
finding Kelman and GlobalTox were likely to prevail on
their libel claim. She claims she made a true statement,
she acted without malice, the court applied the wrong
standard, and her statement was privileged. She also
contends the court erred by broadening the scope of the
complaint and excluding evidence. We affirm the order.

FN1. All statutory references are to the Code of Civil
Procedure unless otherwise indicated.

FN2. GlobalTox recently changed its name to VeriTox, but
since GlobalTox was the name used below, we shall continue
to refer to the company by that name.

FACTUAL AND PROCEDURAL BACKGROUND

Kelman is a scientist with a Ph.D. in toxicology who has
written, consulted, and testified on various topics,
including about the toxicology of indoor mold. He is also
the president of GlobalTox, which provides research and
consulting services, including on toxicology, industrial
hygiene, medical toxicology, and risk assessment. Kramer
is “active in mold support and the pressing issue of mold
causation of physical injury” after having experienced
indoor mold in her own home.

In June 2004, Kelman gave a deposition in an Arizona case,
Kilian v. Equity Residential Trust (U.S.Dist.Ct., D.Ariz.,
No. CIV 02-1272-PHX-FJM). During the deposition, Kelman
testified about his involvement with a paper on the health
risks of mold that he co-authored with two others for the
American College of Occupational and Environmental Medicine
(ACOEM). This paper was reviewed by his peers in the
scientific community. Later he wrote a nontechnical version
of the paper for the Manhattan Institute. During the
deposition, Kelman, inter alia, denied including in the
Manhattan Institute version argumentative language that had
been rejected during the peer review process at ACOEM and
testified that if there were any sentences that had been
removed from the ACOEM version that appeared in the
Manhattan Institute version, they “certainly weren't very
many.” The following exchange then occurred:

“Q. And that new version that you did for the Manhattan
Institute, your company, GlobalTox, got paid $40,000,
correct?

“A. Yes. The company was paid $40,000 for it.”

In February 2005, Kelman testified during a hearing in an
Oregon State court case, Haynes v. Adair Homes, Inc., (No.
CCV0211573) ( Haynes ). The Haynes family sued a builder
alleging construction defects in their home resulted in
mold growing in the house and causing physical injury to
Renee Haynes and the Haynes's two young children. During
the hearing, Kelman testified on cross-examination about
his work on the ACOEM and Manhattan Institute papers. The
libel claim in the present case concerns whether Kelman
testified consistently with his Kilian testimony about
being paid by the Manhattan Institute during his testimony
at the Haynes hearing:

“MR. VANCE: Okay. Now, this revision of the [ACOEM paper]
state-

“BRUCE J. KELMAN: What revision?

*2 “MR. VANCE: The revision-you said that you were
instrumental in writing the statement, and then later on
you said you and a couple other colleagues wrote a revision
of that statement, isn't that true?

“BRUCE J. KELMAN: No, I didn't say that.

“MR. VANCE: Well-

“BRUCE J. KELMAN: To help you out I said there were
revisions of the position statement that went on after we
had turned in the first draft.

“MR. VANCE: And, you participated in those revisions?

“BRUCE J. KELMAN: Well, of course, as one of the authors.

“ MR. VANCE: All right. And, isn't it true that the
Manhattan Institute paid GlobalTox $40,000 to make
revisions in that statement?

“BRUCE J. KELMAN: That is one of the most ridiculous
statements I have ever heard.

“MR. VANCE: Well, you admitted it in the Killian [sic]
deposition, sir.

“BRUCE J. KELMAN: No. I did not.

“.........................

“MR. VANCE: Would you read into the record the highlighted
portions of that transcript, sir?

“BRUCE J. KELMAN: “And, that new version that you did for
the Manhattan Institute, your company, GlobalTox got paid
$40,000. Correct. Yes, the company was paid $40,000 for it.

“MR. VANCE: Thank you. So, you participated in writing the
study, your company was paid very handsomely for it, and
then you go out and you testify around a country
legitimizing the study that you wrote. Isn't that a
conflict of interest, sir?

“BRUCE J. KELMAN: Sir, that is a complete lie.

“MR. VANCE: Well, you[‘re] vouching for your own self
[inaudible]. You write a study and you say, ‘And, it's an
accurate study.’

“BRUCE J. KELMAN: We were not paid for that. In fact, the
sequence was in February of 2002, Dr. Brian Harden, and
[inaudible] surgeon general that works with me, was asked
by American College of Occupational and Environmental
Medicine to draft a position statement for consideration by
the college. He contacted Dr. Andrew Saxton, who is the
head of immunology at UC-clinical immunology at UCLA and
myself, because he felt he couldn't do that by himself. The
position statement was published on the web in October of
2002. In April of 2003 I was contacted by the Manhattan
Institute and asked to write a lay version of what we had
said in the ACOEM paper-I'm sorry, the American College of
Occupational and Environmental Medicine position statement.
When I was initially contacted I said, ‘No.’ For the amount
of effort it takes to write a paper I can do another
scientific publication. They then came back a few weeks
later and said, “If we compensate you for your time, will
you write the paper?” And, at that point I said, ‘Yes, as a
group.’ The published version, not the web version, but the
published version of the ACOEM paper came out in the
Journal of Environmental and Occupational Medicine in May.
And, then sometime after that, I think it was in July, this
lay translation came out. They're two different papers, two
different activities. The-we would have never been
contacted to do a translation of a document that had
already been prepared, if it hadn't already been prepared.

*3 “MR. VANCE: Well, your testimony just a second ago that
you read into the records, you stated in that other case,
you said, “Yes. GlobalTox was paid $40,000 by the Manhattan
Institute to write a new version of the ACOEM paper.” Isn't
that true, sir? (86/57)

“BRUCE J. KELMAN: I just said, we were asked to do a lay
translation, cuz the ACOEM paper is meant for physicians,
and it was not accessible to the general public.

“MR. VANCE: I have no further questions.” (Italics added.)

In June 2005, Kramer wrote a press release about the Haynes
case and posted it on PRWeb, an Internet site. This press
release was later also posted on another Internet site,
ArriveNet. One paragraph of the press release was devoted
to Kelman's testimony:

“Dr. Bruce Kelman of GlobalTox, Inc., a Washington based
environmental risk management company, testified as an
expert witness for the defense, as he does in mold cases
throughout the country. Upon viewing documents presented by
the Hayne's attorney of Kelman's prior testimony from a
case in Arizona, Dr. Kelman altered his under oath
statements on the witness stand. He admitted the Manhattan
Institute, a national political think-tank, paid GlobalTox
$40,000 to write a position paper regarding the potential
health risks of toxic mold exposure. Although much medical
research finds otherwise, the controversial piece claims
that it is not plausible the types of illnesses experienced
by the Haynes family and reported by thousands from across
the U.S. could be caused by ‘toxic mold’ exposure in homes,
schools or office buildings.” (Italics added.)

Kramer's claim Kelman had “altered his under oath
statements on the witness stand” focuses on Kelman's
testimony about being paid by the Manhattan Institute. She
claims the portion of Kelman's testimony in the Haynes
hearing that we italicized supports the statement in her
press release.

Kelman and GlobalTox sued Kramer for libel based on the
statement in the press release that “Kelman altered his
under oath statements on the witness stand.”

Kramer brought a section 425.16 motion to strike the
complaint. The court denied the motion, concluding that
although Kramer had sustained her burden of showing the
complaint fell within the scope of section 425.16,
subdivision (e)(3) and (4), Kelman and GlobalTox had
sustained their burden of showing a probability they would
prevail on their libel claim. The court stated the gist of
the press release statement was that Kelman committed
perjury in the Haynes case, lied about a subject related to
his profession, or “accepted a bribe from a political
organization to falsify a peer-reviewed scientific research
position statement.” The court stated there was admissible
evidence to show Kramer's statement was false; that Kelman
was clarifying his testimony under oath, rather than
altering it; and to show Kramer acted with actual malice.
FN3

FN3. Kramer asked us to take judicial notice of additional
documents, including the complaint and an excerpt from
Kelman's deposition in her lawsuit against her insurance
company. We decline to do so as it does not appear these
items were presented to the trial court.

DISCUSSION

I

Anti-Slapp Law

*4 “Section 425.16, known as the anti-SLAPP statute,
permits a court to dismiss certain types of nonmeritorious
claims early in the litigation.” ( Chavez v. Mendoza (2001)
94 Cal.App.4th 1083, 1087.)

In determining whether a motion to strike should be granted
under the anti-SLAPP statute, “[f]irst, the court decides
whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected
activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this
burden by demonstrating that the act underlying the
plaintiff's cause fits one of the categories spelled out in
section 425.16, subdivision (e).’ “ ( Navellier v. Sletten
(2002) 29 Cal.4th 82, 88.) Among the categories spelled out
in section 425.16, subdivision (e) are: “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)) and 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.’ “ (§ 425.16, subd. (e).)

If the court finds that the defendant has made a showing
that the complaint or cause of action is within the scope
of the anti-SLAPP statute, the burden shifts “and the
plaintiff must show a probability of prevailing on the
claim.” ( Nagel v. Twin Laboratories, Inc. (2003) 109
Cal.App.4th 39, 45.)

“Only a cause of action that satisfies both prongs of the
anti-SLAPP statute-i.e., that arises from protected speech
or petitioning and lacks even minimal merit-is a SLAPP,
subject to being stricken under the statute.” ( Navellier
v. Sletten, supra, 29 Cal.4th 82, 89, italics omitted.) On
appeal we apply a de novo standard of review. ( Padres,
L.P. v. Henderson (2003) 114 Cal.App.4th 495, 509; Governor
Gray Davis Com. v. American Taxpayers Alliance (2002) 102
Cal.App.4th 449, 456.)

II

Protected Activity

Here the trial court found and the parties do not dispute
that Kelman's complaint fell within the scope of the anti-
SLAPP statute. The statement at issue was made in the
context of a press release, posted on a public Internet
forum and concerned litigation about a public issue, that
is, the possible health risks associated with toxic indoor
mold. Kramer's statement fell within the scope of section
425.16, subdivision (e)(3) and (4): It was made in a public
forum concerning an issue of public interest and was an act
in furtherance of her constitutional right to free speech
in connection with a public issue. Thus, Kramer met the
first prong of the anti-SLAPP statute. The burden of proof
then shifted to Kelman to establish a probability of
prevailing on his claim that Kramer's speech was not
protected speech because it was libelous.

III

Falsity of Statement

Kramer contends “to a lay person (and anyone else who looks
at the statement without an agenda) it clearly appears that
Plaintiff Bruce Kelman altered his testimony under oath.”
FN4 She asserts the statement was true, as a matter of law.
We disagree. Whether the statement was true or false raises
a question of fact.

FN4. Kramer also contends GlobalTox has no standing to sue
for libel because it was not defamed. We disagree. The
statement at issue identified Kelman with GlobalTox and
therefore, if false, the statement injured the reputations
of both Kelman and GlobalTox.

*5 To prove a cause of action for libel, an intentional
tort, the plaintiff must show: a publication, in writing,
that is false, defamatory and unprivileged and has a
natural tendency to injure or that causes special damage to
a person. (5 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, §§ 529-530, pp. 782-783; Civ.Code, §§ 45, 46.) Truth
is a complete defense to liability for defamation. (
Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767,
768-769; Gantry Constr. Co. v. American Pipe & Constr. Co.
(1975) 49 Cal.App.3d 186, 191-192.) The truth defense
requires only a showing that the substance, gist or sting
of the communication or statements is true. ( Gantry
Constr. Co. v. American Pipe & Constr. Co., at p. 194.)

The record in the Haynes case indicates that prior to being
asked whether “the Manhattan Institute paid GlobalTox
$40,000 to make revisions in that statement,” Kelman was
being cross-examined about revisions to the ACOEM paper and
stated he had participated in making revisions after
turning in the first draft. In context, the question about
being paid to “make revisions in that statement” was
ambiguous and a reasonable jury could conclude Kelman
interpreted the question as asking whether he had been paid
$40,000 by the Manhattan Institute to make revisions in the
ACOEM paper itself, a suggestion Kelman found offensive. A
short while later, Kelman explained how the Manhattan
Institute paper was an entirely separate project-the
writing of a lay translation of the ACOEM paper-and he
readily admitted he was paid by the Manhattan Institute to
write the lay translation.

This testimony supports a conclusion Kelman did not deny he
had been paid by the Manhattan Institute to write a paper,
but only denied being paid by the Manhattan Institute to
make revisions in the paper issued by ACOEM. He admitted
being paid by the Manhattan Institute to write a lay
translation. The fact that Kelman did not clarify that he
received payment from the Manhattan Institute until after
being confronted with the Kilian deposition testimony could
be viewed by a reasonable jury as resulting from the poor
phrasing of the question rather than from an attempt to
deny payment.

In sum, Kelman and GlobalTox presented sufficient evidence
to satisfy a prima facie showing the statement in the press
release was false.

IV

Malice

Kramer contends the court erred in finding Kelman made a
prima facie showing sufficient to support a finding by
clear and convincing evidence that she acted with malice.

As Kelman concedes, he was a limited public figure FN5 and
therefore it was necessary for him to show not only that
the statement was false but also to show by clear and
convincing evidence that Kramer acted with malice. ( Colt
v. Freedom Communications, Inc., supra, 109 Cal.App.4th
1551, 1557; Khawar v. Globe Internat., Inc. (1998) 19
Cal.4th 254, 279.) Malice exists when an individual
publishes a falsehood knowing it was false or with reckless
disregard for whether it was true or not. ( Sipple v.
Foundation For Nat. Progress (1999) 71 Cal.App.4th 226,
247.) The existence of actual malice turns on the
defendant's subjective belief as to the truthfulness of the
allegedly false statement. ( Reader's Digest Assn. v.
Superior Court (1984) 37 Cal.3d 244, 257.) A state of mind,
like malice, “can seldom be proved by direct evidence. It
must be inferred from objective or external circumstantial
evidence.” ( Drum v. Bleau, Fox & Associates (2003) 107
Cal.App.4th 1009, 1021, disapproved on other grounds in
Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1065.) Relevant
evidence may include the defendant's anger or hostility
toward the plaintiff, a failure to investigate, and
subsequent conduct by the plaintiff. ( Reader's Digest
Assn. v. Superior Court, at p. 257; Tranchina v. Arcinas
(1947) 78 Cal.App.2d 522, 524.)

FN5. “The limited purpose public figure is an individual
who voluntarily injects him or herself or is drawn into a
specific public controversy, thereby becoming a public
figure on a limited range of issues.” ( Ampex Corp. v.
Cargle (2005) 128 Cal.App.4th 1569, 1577.)

*6 Here, Kelman's statements were made during a recorded
court hearing and thus, Kramer could or did view the
statements in context. A reasonable jury could conclude a
simple investigation of Kelman's testimony in context would
have revealed the gist of Kelman's testimony did not
involve any alteration of testimony given under oath or
conduct amounting to perjury.

Additionally, there was other evidence presented which
could support a finding Kramer had a certain animosity
against Kelman. Kelman gave an expert opinion in Kramer's
lawsuit against her insurance company seeking damages
caused by the presence of mold in her home. Kelman stated
there did not appear to be a greatly increased level of
risk of mold inside the home compared to the levels in the
air outside the home. While the Kramer family eventually
settled and recovered damages from the insurance company, a
reasonable jury could infer that Kramer harbored some
animosity toward Kelman for providing expert services to
the insurance company and not supporting her position.

A jury could also infer animosity against Kelman by
Kramer's conduct two months before the press release was
issued. In January 2005, after learning the American
Industrial Hygiene Association (AIHA) had invited GlobalTox
to participate in a teleweb conference, Kramer sent two e-
mails to AIHA, one asking, “What could possibly be your
justification for affiliating with the ilks [ sic ] of
GlobalTox,” the other containing the following paragraph:
FN6

FN6. On appeal, Kramer contends these e-mails
constituted “hearsay” and therefore were not admissible
evidence. Since she did not object on this basis below, she
is precluded from raising this issue on appeal. (Evid.Code,
§ 353, subd. (a); Coit Drapery Cleaners, Inc. v. Sequoia
Ins. Co. (1993) 14 Cal.App.4th 1595, 1611.) In any event,
the evidence was not offered to prove the truth of the
matter stated so it was not subject to exclusion as hearsay.

“Why is a company that is known to provide expert insurance
defense litigation being allowed to hold an online seminar
for Industrial Hygienists? Is the goal of the AIHA to
promote the safety of mankind as your code of ethics
states? Or is the goal of the AIHA to limit financial
liability for those who support your organization? Do
children of industrial hygenists [ sic ] attend elementary
schools? Shame on you for perpetuating this perverse
situation. May your children rot in hell, along with all
the other innocent children you are hurting.” (Italics
added.)

Further, in determining whether there was a prima facie
showing of malice, the trial court also relied on the
general tone of Kramer's declarations. These declarations
reflect a person who, motivated by personally having
suffered from mold problems, is crusading against toxic
mold and against those individuals and organizations who,
in her opinion, unjustifiably minimize the dangers of
indoor mold. Although this case involves only the issue of
whether the statement “Kelman altered his under oath
statements on the witness stand” was false and made with
malice, Kramer's declarations are full of language deriding
the positions of Kelman, GlobalTox, ACOEM and the Manhattan
Institute. For example, Kramer states people
were “physically damaged by the ACOEM Statement itself”
that the ACOEM statement “is a document of scant scientific
foundation; authored by expert defense witnesses;
legitimized by the inner circle of an influential medical
association, whose members often times evaluate mold
victims o[n] behalf of insurers and employers; and promoted
by stakeholder industries for the purpose of financial gain
at the expense of the lives of others.”

*7 Kramer also contends the trial court applied the wrong
standard in determining whether Kelman had met his burden
of making a prima facie showing of malice, pointing out
that Kelman was required to make a prima facie showing that
there existed clear and convincing evidence to support a
finding of malice but the court in its tentative decision
referred to the defendants having “sustained their burden
of proof to establish a ‘ probability ‘ that they will
prevail on their sole cause of action for Libel (per Se)”
and in making its ruling at the hearing stated “there is a
reasonable probability that the plaintiffs will prevail on
their libel cause of action.” (Italics added.) We find no
error here. The court's application of a “probability”
or “reasonable probability” standard properly reflects the
standard stated in section 425.16, subdivision (b)(1).
Section 425.16, subdivision (b)(1) states, that an anti-
SLAPP motion should not be granted if “the court determines
that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.”
(Italics added.) Encompassed within this standard in the
context of this case is that there was a probability Kelman
would prevail in establishing by clear and convincing
evidence Kramer acted with malice.

V

Privileges

(A) Civil Code Section 47, Subdivision (c)

Kramer contends her statement was privileged under Civil
Code section 47, subdivision (c), which states:

“A privileged publication or broadcast is one made:

“.........................

“(c) In a communication, without malice, to a person
interested therein, (1) by one who is also interested, or
(2) by one who stands in such a relation to the person
interested as to afford a reasonable ground for supposing
the motive for the communication to be innocent, or (3) who
is requested by the person interested to give the
information. This subdivision applies to and includes a
communication concerning the job performance or
qualifications of an applicant for employment, based upon
credible evidence, made without malice, by a current or
former employer of the applicant to, and upon request of,
one whom the employer reasonably believes is a prospective
employer of the applicant. This subdivision authorizes a
current or former employer, or the employer's agent, to
answer whether or not the employer would rehire a current
or former employee. This subdivision shall not apply to a
communication concerning the speech or activities of an
applicant for employment if the speech or activities are
constitutionally protected, or otherwise protected by
Section 527.3 of the Code of Civil Procedure or any other
provision of law.”

To support her argument, Kramer merely quotes from Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 914, which explains
this privilege applies when the parties to the
communication have “ ‘a contractual, business or similar
relationship, such as “between partners, corporate officers
and members of incorporated associations” or between “union
members [and] union officers.” ‘ “ She states she meets
this privilege “insofar as her protected audience are those
injured victims of toxic mold exposure and advocates for
those victims.” Kramer, however, did not send out the press
release to a select few, she broadly published it on the
Internet and made it available to the general public. Thus,
this privilege does not apply.

(B) Civil Code Section 47, Subdivision (d)(1)

*8 Kramer contends her press release was privileged under
Civil Code section 47, subdivision (d)(1), which provides a
privilege for “a fair and true report in, or a
communication to, a public journal, of ... a judicial, ...
or ... of anything said in the course thereof....” As we
explained above, Kelman and GlobalTox presented admissible
evidence showing Kramer's statement in the press release
was neither a fair nor true report of Kelman's testimony
during the Haynes hearing. Therefore, this privilege does
not support granting her anti-SLAPP motion.

VI

Additional Allegation

Kramer contends “[t]he court created an additional aspect
of the allegedly libelous statement by holding that it
could be read as an allegation of bribery.” She contends
such a finding is unsupported by the evidence.

The trial court drew an inference that Kramer was intending
to imply that the payment for the revisions was a bribe to
obtain certain revisions favorable to the defense position
in toxic mold litigation. However, the statement in her
press release at issue here was limited to stating Kelman
had altered his under oath testimony and did not refer to
any particular testimony. As published, it was an
allegation of perjury, not of bribery.

Nonetheless, this error does not require reversal since the
trial court's ruling on the basis of perjury is well
supported by the record and justified denial of the anti-
SLAPP motion.

VII

Exclusion of Evidence

Kramer contends the trial court erred in sustaining the
plaintiffs' objections to her declarations and exhibits on
the basis of relevance, hearsay and foundation.

(A) Trial Transcript-Kelman's Testimony in the Haynes Case

Kramer argues the cites to Kelman's testimony in the Haynes
case “are not hearsay because they constitute admissions
against interest and in portions thereof prior inconsistent
statements which show alterations of his under oath
testimony....” She provides only one example:
Kelman's “change in testimony regarding the extent of his
involvement in the preparation of the ACOEM statement.” She
neither provides any citations to the record nor further
argument.

As appellant, Kramer has the burden of showing error. (See
Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th
424, 443.) “The reviewing court is not required to make an
independent, unassisted study of the record in search of
error or grounds to support the judgment. It is entitled to
the assistance of counsel.” (9 Witkin, Cal. Procedure (4th
ed. 1997) Appeal, § 594, p. 627.) We may ignore points that
are not argued or supported by citations to authorities or
the record. ( Kim v. Sumitomo Bank (1993) 17 Cal.App.4th
974, 979.)

Kramer has failed to meet her burden of establishing error.
She has not provided any description of the testimony she
believed was improperly excluded-except for the one example-
and no citations to the record or further argument to
support her claim of error. We decline to sift through the
record for her exhibits to see if any error might have
occurred. Indeed, we are uncertain where to find her one
example. We note that if the example was intended to refer
to Kelman's testimony on pages 53 to 59 of the transcript
of the Haynes transcript, there was no objection to that
testimony; the objection was to Kramer's restatement of the
testimony in her declaration.

( B) Prior Inconsistent Statements

*9 Kramer contends the court erroneously excluded
Kelman's “prior inconsistent e-mail on that same issue”-
presumably, the extent of his involvement in preparing the
ACOEM statement-because it was “an admission against
interest and directly impeaches his declaration in
opposition.”

Again, Kramer has failed to meet her burden of showing
error. We decline to wade through the record to find this e-
mail or the portion of the declaration Kramer claims it
somehow impeaches, to see if there was an objection to this
e-mail, and to determine if there was error. Moreover,
Kramer's cryptic argument fails to explain how the e-mail
was material or relevant to the issues at hand, that is,
whether Kelman altered his testimony about receiving
payment from the Manhattan Institute or whether she acted
with malice.

(C) Coconspirator Admissions

Kramer contends the court erred in excluding “[t]he e-mails
of various ACOEM board members” because they were “co-
conspirator admissions (with regard to the true intention o
[r] purpose for its creation, use, and manner of
preparation of the ACOEM statement) binding upon Kelman
which also act as impeachment of his declaration regarding
the true reason for the ACOEM report creation, the limited
scope of defense oriented ‘peer review,’ and the scope of
his involvement in the creation of the document.” She
argues various exceptions to the hearsay rule apply
including state of mind (Evid.Code, § 1250), coconspirator
statements ( id., § 1223), and admissions by a party ( id.,
§ 1220).

Initially, we note this lawsuit is not about a conspiracy.
This lawsuit was filed by Kelman and GlobalTox alleging one
statement in a press release was libelous. Thus, conspiracy
issues are not relevant.

Kramer's brief does not clearly refer to any e-mails of
various ACOEM board members. Moreover, the “evidence” she
details involves collateral matters, such as whether the
ACOEM paper was intended to be a defense document for
litigation, whether it was “peer-reviewed by 100's of
physicians,”, whether Kelman's interpretation of the ACOEM
findings was correct, whether Kelman first heard of Kramer
in 2003 or 2002, whether Kramer's e-mail to AIHA was
inflammatory, whether she posted the press release to
ArriveNet, and whether she had engaged in a campaign
against Kelman. We fail to see how exclusion of this
evidence would have changed the result, that is,
established that Kramer's statement in the press release,
as a matter of law, was true and made without malice.

DISPOSITION

The order is affirmed. Kelman is awarded costs on appeal.

WE CONCUR: McDONALD and AARON, JJ.

ToxBoard (Gen) Chatboard

LATEST POSTS | BY TOPICS | SUBMIT A POST