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    Re: Sharon Kramer Legal Opinion

    Posted by Deborah on 12/14/07

    Wow, that is something. Kind of takes the focus off the
    paper(s) this guy published that were based on a single
    rodent study, one that other members of the organization had
    questioned and the fact that this guy, not a clinician,
    manages to take those same papers and work as an expert
    witness utilizing those very papers. That in an amazing
    sleight of hand.

    Wow, I wonder if there is any way to poll the practicing
    clinicians that are members of that august board and get
    their views.

    On 12/13/07, Mike B. wrote:
    > Keep in mind, this is the opinion of an appellate court
    > 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.
    > 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
    > (ACOEM). This paper was reviewed by his peers in the
    > scientific community. Later he wrote a nontechnical
    > of the paper for the Manhattan Institute. During the
    > deposition, Kelman, inter alia, denied including in the
    > Manhattan Institute version argumentative language that
    > 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
    > 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
    > 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.
    > 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
    > When I was initially contacted I said, ‘No.’ For the
    > 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
    > group.’ The published version, not the web version, but
    > 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,
    > lay translation came out. They're two different papers,
    > 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
    > Institute to write a new version of the ACOEM paper.”
    > 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
    > 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
    > 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
    > by the Haynes family and reported by thousands from across
    > the U.S. could be caused by ‘toxic mold’ exposure in
    > 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
    > his profession, or “accepted a bribe from a political
    > organization to falsify a peer-reviewed scientific
    > 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.
    > 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
    > 94 Cal.App.4th 1083, 1087.)
    > In determining whether a motion to strike should be
    > under the anti-SLAPP statute, “[f]irst, the court decides
    > whether the defendant has made a threshold showing that
    > challenged cause of action is one arising from protected
    > activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets
    > burden by demonstrating that the act underlying the
    > plaintiff's cause fits one of the categories spelled out
    > section 425.16, subdivision (e).’ “ ( Navellier v. Sletten
    > (2002) 29 Cal.4th 82, 88.) Among the categories spelled
    > 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;
    > 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
    > forum concerning an issue of public interest and was an
    > 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
    > at the statement without an agenda) it clearly appears
    > Plaintiff Bruce Kelman altered his testimony under oath.”
    > FN4 She asserts the statement was true, as a matter of
    > We disagree. Whether the statement was true or false
    > 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
    > a person. (5 Witkin, Summary of Cal. Law (10th ed. 2005)
    > Torts, §§ 529-530, pp. 782-783; Civ.Code, §§ 45, 46.)
    > is a complete defense to liability for defamation. (
    > Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S.
    > 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
    > 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
    > 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
    > $40,000 by the Manhattan Institute to make revisions in
    > 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
    > 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
    > 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
    > 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
    > 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
    > allegedly false statement. ( Reader's Digest Assn. v.
    > Superior Court (1984) 37 Cal.3d 244, 257.) A state of
    > 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
    > 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,
    > 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
    > 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,
    > is precluded from raising this issue on appeal.
    > § 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
    > “Why is a company that is known to provide expert
    > 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
    > the positions of Kelman, GlobalTox, ACOEM and the
    > Institute. For example, Kramer states people
    > were “physically damaged by the ACOEM Statement itself”
    > that the ACOEM statement “is a document of scant
    > 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
    > by stakeholder industries for the purpose of financial
    > 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
    > 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
    > 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
    > 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)
    > 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
    > and members of incorporated associations” or
    between “union
    > members [and] union officers.” ‘ “ She states she meets
    > this privilege “insofar as her protected audience are
    > injured victims of toxic mold exposure and advocates for
    > those victims.” Kramer, however, did not send out the
    > release to a select few, she broadly published it on the
    > Internet and made it available to the general public.
    > 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
    > 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
    > 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
    > 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
    > case “are not hearsay because they constitute admissions
    > against interest and in portions thereof prior
    > 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.”
    > 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
    > the assistance of counsel.” (9 Witkin, Cal. Procedure (4th
    > ed. 1997) Appeal, § 594, p. 627.) We may ignore points
    > 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
    > She has not provided any description of the testimony she
    > believed was improperly excluded-except for the one
    > 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
    > 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
    > mail or the portion of the declaration Kramer claims it
    > somehow impeaches, to see if there was an objection to
    > 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-
    > 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 (
    > § 1220).
    > Initially, we note this lawsuit is not about a conspiracy.
    > This lawsuit was filed by Kelman and GlobalTox alleging
    > statement in a press release was libelous. Thus,
    > 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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