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    Post: Sharon Kramer Legal Opinion

    Posted by Mike B. on 12/13/07

    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,
    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

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


    *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.


    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,

    “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]

    “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. 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.



    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.)


    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.


    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.



    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. 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

    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.



    (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.


    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.


    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

    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

    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.


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


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