Re: Sharon Kramer Legal Opinion

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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
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.