A California appeals court has affirmed a trial court’ decision to dismiss the claim of podiatrist, who had sued San Francisco Giant Barry Bonds, the San Francisco Chronicle and others or defamation and interference with prospective economic advantage after an article in the paper exposed inconsistencies in the plaintiff’s claim that he had treated famous athletes for their foot problems.
Central to the court’s decision was its findings that plaintiff Andrew L. Carver admitted in the article to using professional athletes to market his practice and that he had misled Bonds, justifying the fact the Bonds called him “a liar.” The defendants’ argument was also bolstered by its reliance of the anti-SLAPP statute, which provides for “the right of petition or free speech under the United States or California Constitution in connection with a public issue.”
The article in question appeared on December 30, 2002 with the following headline and subhead:
The Sport of Doctoring
It’s Proving To Be Big Business To Let The Public Know You’re Treating Big-Time Athletes
The article went on to describe Carver’s career, how it intersected with professional sports and various inconsistencies in his claim. It also explored specifically how Carver allegedly claimed during an interview to become the team podiatrist with the Sacramento Kings that Bonds was using his orthotics the year he hit 73 home runs. Responding to that claim, Bonds told the Chronicle: “I don’t like that man. I don’t like that man. He’s a liar.”
Addressing the SLAPP statute first, the court noted that the article involved “a public issue or an issue of public interest. Such an issue was found to be present in an analogous situation in Wilbanks v. Wolk, supra, 121 Cal.App.4th at pp. 898-90, where the statements in question were directed against a broker of viatical settlements (arrangements that allow dying persons with life insurance policies to sell their policies to investors for a percentage of the death benefits).”
In the instant case, “the article warned readers not to rely on doctors’ ostensible experience treating professional athletes, and told what it described as ‘a cautionary tale’ of plaintiff exaggerating that experience to market his practice. Since the statements at issue served as a warning against plaintiff’s method of self-promotion, and were provided along with other information to assist patients in choosing doctors, the statements involved a matter of public concern. The challenged statements were therefore protected activity under the anti-SLAPP law.”
Turning to the claim involving Bonds, the court relayed the followed chronology of events.
“Bonds said that plaintiff approached him in 2001 about endorsing a line of electric bikes and scooters, but no deal was struck. Bonds said that when he refused to pay plaintiff for scooters and bikes that plaintiff had lent him and that he had returned to plaintiff, the latter ‘threatened to call the press and say that I came to a party of his high on marijuana, which was a lie.’ Despite this threat, Bonds said he never paid plaintiff for use of the bikes and scooters.
“On a different subject, Bonds said that plaintiff offered in the spring of 2001 to make him a trial set of orthotics, and if he liked them, to supply him with additional orthotics for free. Bonds said that, based on the test set, he ordered and received more orthotics from plaintiff around the end of the 2001 season, but never used them. Bonds said he was surprised to receive a $1,575 billing from plaintiff for the orthotics, and asked his accountants to tell plaintiff that he did not owe him any money. Bonds said that he eventually decided, after prolonged haggling between his accountants and plaintiff, to pay the bill to get plaintiff ‘off [his] back’ and save the cost of having his accountants deal with the matter.”
The court also paraphrased Bonds that his “liar” comment was “meant only to convey a subjective opinion.
“Bonds thought that plaintiff had been ‘less than truthful in his dealings with me,’
because ‘he gave me the impression that he was giving me free orthotics and then billed
me for them,’ and ‘he threatened to lie to the press about me.’
“An average reader of the article could have understood the lie or lies to which Bonds alluded to be plaintiff’s claim that Bonds had worn plaintiff’s orthotics during his record-breaking season.
“(E)ven if the statement were potentially defamatory under the circumstances, plaintiff must nevertheless make a prima facie showing that it was substantially false (Masson v. New Yorker Magazine, supra, 501 U.S. at pp. 516-517; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821; Vogel v. Felice, supra, 127 Cal.App.4th at p. 1021), and he has failed to carry that burden. Bonds has declared, and plaintiff has not denied, that plaintiff threatened to lie to the press about him, and reneged on an offer to supply him with free orthotics. Bonds was justified in calling plaintiff a liar in view of those undisputed facts.”
The other factor that weighed heavily in the favor of the defendant was the plaintiff’s “acknowledgement … that patients might have been misled into thinking that he had operated on the displayed athletes, but said that if patients got that misimpression it was their own fault for not asking specific questions.”
Andrew L. Carver v. Barry Bonds et al.; Calif. Ct. of Appeal, 1st App. Dist., Div. 4; A108129, A108923;12/29/05
Attorneys of record: (for plaintiff) Carleton L. Briggs. (for defendants) Merri A. Baldwin of Rogers Joseph O’Donnell & Phillips. Edward J. Rodzewich and Robert Maltz of Valerian, Patterson & Stratman,