(b) Whether the Challenged Statements Were Privileged

The Newspaper's threshold argument is that the article was an accurate report of the Board of Podiatric Medicine's (BPM) investigation of plaintiff, and thus privileged under Civil Code section 47, subdivision (d) as "a fair and true report in ... a public journal, of ... a ... public official proceeding...." The Newspaper bears the burden of proving that the privilege applies. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 109.)

The article stated that the BPM was an affiliate of the state Medical Board, that plaintiff was being investigated by the Medical Board, and that the Medical Board was "looking into a quality-of-care case and allegations he falsified malpractice insurance documents and lied about his record of lawsuits." The article reported that patient Thoresen had filed a complaint against plaintiff with the BPM, and that, according to BPM official Jim Rathlesberger, the complaint was referred to the Attorney General's office. The article indicated that in its ongoing investigation the Medical Board was examining transcripts from the Arizona case in which plaintiff testified, and other materials as well.

According to the evidence presented on the Newspaper's motion, the Attorney General filed an Accusation against plaintiff with the BPM in December 2003 seeking to revoke or suspend his podiatric license on four grounds: (1) his conviction of spousal battery committed in December 2001 (Pen.Code, § 243, subd. (e)(1)); (2) his wife's July 2001 report to police of violent conduct on his part, including threats to have her killed; (3) dishonesty as revealed in the Arizona testimony; and (4) deceptive advertising, based on the photos of prominent athletes in his office and quotations from the Chronicle article. In April 2004, plaintiff admitted the criminal conviction alleged in the Accusation and surrendered his license to the BPM, with the understanding that the other charges in the Accusation could be considered if he ever applied to have the license reinstated.

Rathlesberger declared in support of the Newspaper's motion to strike that when the article at issue was published the Attorney General was in fact investigating plaintiff "for various things, and my statements to the Chronicle were simply reports to that newspaper of a contemplated official proceeding against Dr. Carver. [¶] ... [¶] Our office became aware during the course of our investigation of Dr. Carver referred to above that Dr. Carver allowed patients to assume that he had surgically treated prominent professional athletes. That issue eventually became the basis of the Fourth Cause for Discipline in [the Accusation].... [¶] ... [¶] I have read [the article at issue] and I believe that it was a fair and true report of our investigation of Dr. Carver and the formal Accusation which resulted therefrom." Plaintiff filed a lawsuit against Rathlesberger in 2001 alleging various tort causes of action arising out of Rathlesberger's handling of a complaint to the BPM against plaintiff. Rathlesberger's demurrer to the complaint was sustained without leave to amend. Plaintiff asserted in his declaration in opposition to the Newspaper's motion that Rathlesberger had "been conducting a personal vendetta against me ...." since plaintiff had sued him.

The Newspaper notes that governmental investigations of malfeasance are considered official proceedings for purposes of the Civil Code section 47, subdivision (d) privilege even if they yield no formal charges. (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1050, fn. 6.) However, all of the challenged statements other than the number of complaints to the Medical Board concern various forms of alleged false advertising on plaintiff's part, and it is not apparent that the advertising aspect of plaintiff's conduct was being investigated before the Newspaper reported on it. Rathlesberger's declaration does not say that the BPM was concerned about plaintiff's deceptive advertising when the article was published; he simply avers that plaintiff was being investigated for "various things" at the time, and that the BPM became aware of the advertising issue "during the course of our investigation," which continued after the article appeared. The Newspaper's claim that false advertising was being investigated when the article was published is belied by the article itself, which specifically describes what was being investigated -- a malpractice charge based on Thoresen's complaint, and falsification of insurance documents and lying about the record of lawsuits based on plaintiff's Arizona testimony -- without any indication that the investigation encompassed any of the false advertising on which the article reported. Given the article's description of the investigation, Rathlesberger's averment that the article was a fair and true report of the investigation does not assist the Newspaper's privilege argument. The Newspaper observes that a false advertising count was included in the Accusation eventually filed against plaintiff. However, that count referred to statements in the article, and insofar as it appears from the record the article may have prompted the investigation that led to that charge. Accordingly, as to most of the challenged statements, the Newspaper has not met its burden of showing that the privilege applies.

The only part of the article possibly shown to have been privileged was its report on the number of complaints that had been filed against plaintiff with the Medical Board. Civil Code section 47, subdivision (b) protects statements made in an "official proceeding authorized by law," including communications "intended to instigate official governmental investigation into wrongdoing." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 370; see also Fontani v. Wells Fargo Investments, supra, 129 Cal.App.4th at pp. 734-735.) Complaints to regulatory agencies such as the BPM are likewise considered to be part of an "official proceeding" under the anti-SLAPP statute. (§ 425.16, subd. (e)(1); Fontani v. Wells Fargo Investments, supra, 129 Cal.App.4th at p. 730.) It follows that a report of such complaints is a report of an "official proceeding" for purposes of Civil Code section 47, subdivision (d).

Civil Code section 47, subdivision (d), unlike Civil Code section 47, subdivision (b) and section 425.16, subdivision (e)(1), refers to "public" official proceedings, but the word "public" in this context simply means governmental, as opposed to private. (Crane v. The Arizona Republic (9th Cir.1992) 972 F.2d 1511, 1518.) Thus, the fact that the complaints were, as the article reported, confidential and not open to the public (see Bus. & Prof.Code, §§ 800, 803.1) does not prevent a report of them from being privileged under Civil Code section 47, subdivision (d). (Braun v. Chronicle Publishing Co., supra, 52 Cal.App.4th at pp. 1050-1052.) The Chronicle and its website are "public journal[s]" within the meaning of this statute. (See Colt v. Freedom Communications, Inc. (2003) 109 Cal.App.4th 1551, 1555, 1558.) The only question, then, is whether the article's report of the complaints was "fair and true."

The article said that 22 complaints were filed against plaintiff with the Medical Board dating back to 1990. Defendant Fainaru-Wada declared in support of the motion to strike that he obtained records showing that 22 complaints had in fact been filed. In opposition to the Newspaper's motion, plaintiff filed letters from the Medical Board suggesting that he had been the subject of fewer complaints than the article reported: in February 2003, plaintiff was advised that six complaints had been made against him; in January 2004, the Medical Board reiterated that it had only six complaints on file, and stated that "[a]nyone purporting to have additional information does not have correct information." However, the 2004 letter also indicated that a case file from 1994 had been "removed and destroyed from our records several years ago" pursuant to the Medical Board's file retention policy. Since the article cited complaints from 1990, and it appears from the correspondence that the Medical Board may not have retained records dating back to that year when it advised as to the number of complaints "on file," it is unclear from the evidence whether six or 22 complaints were lodged during the period the article covered.

The article could, in any event, qualify as a fair and true report of the complaints against plaintiff even if it overstated their number. " '[E]rroneous statement is inevitable in free debate, and ... must be protected if the freedoms of expression are to have the "breathing space" that they "need ... to survive." ' " (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 261.) Thus, the "fair and true" requirement "does not limit the privilege to statements that contain no errors." (Colt v. Freedom Communications, Inc., supra, 109 Cal.App.4th at p. 1558.) "Under California law, a newspaper report is 'fair and true' if it captures ' "the substance, the gist, the sting of the libelous charge" ' [Citations.] The news article need not track verbatim the underlying proceeding. Only if the deviation is of such a 'substantial character' that it 'produce[s] a different effect' on the reader will the privilege be suspended. [Citation.] News articles, in other words, need only convey the substance of the proceedings on which they report, as measured by their impact on the average reader." (Crane v. The Arizona Republic, supra, 972 F.2d at p. 1519.)

The 22 Medical Board complaints allegedly filed against plaintiff were initially linked in the article with the "inordinate string" of malpractice complaints against him, a total of 13 lawsuits in 13 years according to the article. Plaintiff does not deny being sued that many times, and, indeed, the evidence on the Newspaper's motion showed that the article actually understated the number of his malpractice cases. The article later referred again jointly to the alleged 22 Medical Board complaints and the "spate of [malpractice] lawsuits" against plaintiff, and then quoted Rathlesberger as saying that most of the state's 2,000 podiatrists had never been the subject of any such complaint or suit. The "sting" of the references to complaints, whether administrative or judicial, was thus that plaintiff had received an unusually large number of them. That essential point would have been the same whether the number of Medical Board complaints had been six or 22; the lower figure would not, in context, have had a different effect on the reader than the higher one. The article's references to the Medical Board complaints were therefore privileged even if their number was exaggerated as plaintiff claims. (Civ.Code, § 47, subd. (d); Crane v. The Arizona Republic, supra, 972 F.2d at p. 1519; Colt v. Freedom Communications, Inc., supra, 109 Cal.App.4th at p. 1558.)

(c) Whether Plaintiff was a Public Figure

The Newspaper's next argument is that plaintiff was a limited purpose public figure with respect to the subjects covered in the article, and must therefore establish by clear and convincing evidence that the challenged statements were made with actual malice, i.e., with knowledge of their falsity or reckless disregard for their truth. (See generally Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 252-254; Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577.) The Newspaper submits that the requisite showing of malice cannot be made in view of the declarations it has submitted from sources of information for the article attesting to its accuracy.

Limited purpose public figures are those who "invite attention and comment" by "thrust[ing] themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved." (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 345.) For a person to be characterized as a limited purpose public figure, there must "[f]irst ... be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. In this regard it is sufficient that the plaintiff attempts to thrust him or herself into the public eye. And finally, the alleged defamation must be germane to the plaintiff's participation in the controversy." (Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1577.)

Plaintiff argues that he never injected himself into an existing public controversy, and that there was no public controversy regarding his means of self-promotion until the Chronicle created one by publishing the article. The Newspaper observes that plaintiff dubbed himself "a very high-profile doctor who sort of stands alone," and submits that "[a] man cannot engage in ceaseless self-promotion as the 'go-to guy' in his field without inviting some attention as to his experience and credentials and whether prospective clients or customers really should 'go to' him."

As previously noted, all of the nonprivileged statements at issue concerned false advertising -- allegations that plaintiff exaggerated his accomplishments, especially the extent to which he had treated professional athletes, to attract patients. Whether an advertiser is a public figure for purposes of a false advertising claim was addressed in Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763 (Vegod). The plaintiffs there had been hired to conduct the going out-of-business sale of the City of Paris, a respected department store. The defendants reported in a TV news broadcast that the plaintiffs had " 'been brought in to handle the closeout, a closeout the Better Business Bureau says has deceived the public that trusts the name City of Paris and promises bargains that are not really bargains at all.' " (Id. at p. 766 .) The court rejected the defendants' argument that the plaintiffs became public figures by selling goods to the public and by advertising the sale: "While availability of goods for sale and their quality are matters of public interest, this is not the test. The public interest test was expressly rejected in Gertz [v. Robert Welch, Inc., supra,] (418 U.S. at p. 346) and in [Time, Inc. v.] Firestone [1976] (424 U.S. [448] at pp. 455-456), in favor of the public controversy test. (See also Hutchinson v. Proxmire (1979) 443 U.S. 111.)[¶] Criticism of commercial conduct does not deserve the special protection of the actual malice test. Balancing one individual's limited First Amendment interest against another's reputation interest (Herbert v. Lando (1979) 441 U.S. 153, 169), we conclude that a person in the business world advertising his wares does not necessarily become part of an existing public controversy. It follows those assuming the role of business practice critic do not acquire the First Amendment privilege to denigrate such entrepreneur." (Vegod Corp. v. American Broadcasting Companies, Inc., supra, 25 Cal.3d at pp. 769-770.)

The Vegod case is squarely on point, and it precludes plaintiff from being found to be a public figure for purposes of statements accusing him of false advertising. If the holding of Vegod were simply that advertising does not necessarily make one a limited purpose public figure, then the case would not necessarily be controlling here. But Vegod rejected precisely the same public figure argument being advanced in this case by "business practice critic [s]" who are "denigrat[ing]" plaintiff for the content of his advertising. (Vegod Corp. v. American Broadcasting Companies, Inc., supra, 25 Cal.3d at p. 770.) Nothing in Vegod suggests that the result would be different where the plaintiff is selling professional services rather than commercial goods; in either case, the false advertising would be a matter of public interest, but not one of public controversy. Moreover, Vegod's observation that the plaintiff must "become part of an existing public controversy" to be considered a limited purpose public figure (ibid.; italics added) confirms that the Newspaper could not create a public controversy simply by publishing an article that put plaintiff's behavior in the spotlight (Hutchinson v. Proxmire, supra, 443 U.S. at p. 135 [alleged defamer cannot create its own defense by making the claimant a public figure]).

The cases on which the Newspaper relies are distinguishable because none of them involved false advertising, and all of them involved an existing public controversy. (Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1578 [responsibility for failure of publicly-traded company's multimillion dollar business venture]; Copp v. Paxton, supra, 45 Cal.App.4th at pp. 834-835, 846 [best means of avoiding earthquake injuries in public schools]; Nadel v. Regents of the University of California (1994) 28 Cal.App.4th 1251, 1255, 1269 [best use of public park]; Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1187, 1190 [responsibility for mismanagement of public land]; Denny v. Lawrence (1994) 22 Cal.App.4th 927, 931, 935-936 [culpability for widely-publicized homicide].) Accordingly, plaintiff was not a public figure for purposes of the challenged statements.

(d) Whether Plaintiff Has Established a Prima Facie Case

The Newspaper further argues that plaintiff has not demonstrated a probability of prevailing because the challenged statements were protected matters of opinion rather than actionable assertions of fact, or because plaintiff has not shown that the statements were false.

(1) Gilbert's Surgery

The Newspaper cannot, of course, be held liable for a statement it did not make or repeat. One of the allegedly false statements was that plaintiff operated alone on Brad Gilbert, but the article did not say that. The article said that when plaintiff discussed the surgery with the Chronicle, he initially did not mention any assistance, but later admitted having been assisted by other doctors. This disposes of the claim relative to Gilbert's surgery.

(2) Work Confined to Orthotics

Plaintiff alleges that the article falsely stated that the only work he performed for athletes was to fit them with foot supports, but again, that is not what the article said. The article said that, although surgical procedures were reportedly a significant part of plaintiff's practice, "virtually " all of the work he did for athletes was fitting them for orthotics. (Italics added.) The article noted that plaintiff had performed surgery on Mario Elle as well as Gilbert, and that plaintiff had treated Joe Montana for an in-grown toenail as well as fitted him for orthotics. The article said that plaintiff admitted telling patients, when asked what he did for athletes, that he fitted "most" of them for supports. The article thus indicated that nearly all, not entirely all, of his work with athletes involved orthotics.

In his declaration in opposition to the Newspaper's motion, plaintiff did not represent that surgery was a significant part of his work with athletes, only that he had "done several surgeries on various professional athlete[s]." He said that during his time as team podiatrist for the Golden State Warriors he treated "quite a few players for custom biomechanical orthotic devices and for multiple other foot problems," including "injections for various tendinitis and neuromas to mechanical debridement of painful keratotic tissue to mechanical debridement of infected tissues, infected nails, etc." He said that he performed "a full podiatric medical exam" when he cast a player for orthotics, and he produced records of payments for orthotics from Bonds, Craig, Montana, Jerry Rice, Ronnie Lott, Chris Mullin, Mitch Richmond, Latrell Sprewell, and other athletes.

Plaintiff's evidence does not show that the article was materially false in reporting that virtually all of his work with athletes involved orthotics. He does not deny telling patients, as reported in the article, that he fitted "most" of the athletes he treated for foot supports. He states in his declaration that he also operated on athletes and treated them for things like toenail problems, but that work was mentioned in the article. The only records he produced for treatment of athletes were of payments for orthotics.

It thus appears that the article was substantially true in indicating that virtually all of his work with athletes was confined to orthotics.

(3) Ongoing Relationships With 49er Players

Plaintiff's evidence also failed to controvert the article's allegedly false suggestion that he had essentially no connection to 49er players after 1989. The article stated that plaintiff's connections to the 49ers were limited "primarily" to a few weeks in 1989, but that he "gave some former patients and colleagues the impression he had ongoing and extensive relationships" with the 49ers. The article quoted plaintiff as saying that he had "done Montana a lot," and later explaining that he had fitted Montana for orthotics and once taken care of an in-grown toenail. The article did not report plaintiff saying anything else about treating 49ers, apart from fitting them with orthotics at their training facility one day a week for a few weeks in 1989.

Plaintiff's declaration is silent on the extent of his involvement with 49er players after 1989. He presented no evidence on the subject other than a ledger of payments for orthotics listing four payments received from 49ers in July and September of 1990. It thus appears from the evidence that the article was correct insofar as it stated or implied that plaintiff had no ongoing and extensive relationships with 49ers after 1989. Plaintiff did not make a contrary showing and thereby failed to carry his burden on the motion to strike.

(4) 49er Team Podiatrist

Plaintiff contends that the article falsely implied that he held himself out as having been the 49er team podiatrist. The article reported in this regard that: a medical professional who worked with plaintiff "either heard it [that plaintiff had been the team podiatrist] or heard him say it"; plaintiff was listed as the team podiatrist in an expert witness directory; the directory said that the information came from plaintiff; plaintiff said that the directory "made a mistake"; and plaintiff denied telling "anyone" that he had been team podiatrist. In his declaration against the Newspaper's motion plaintiff did not reaffirm his blanket denial as reported in the article; he merely stated that he "did not tell patients " that he had been the team podiatrist. (Italics added.) By this statement, which we assume was carefully-worded, plaintiff does not deny holding himself out as the 49er team physician to persons other than patients, including fellow professionals, expert witness directories, radio talk show hosts, et cetera. Plaintiff thus failed to show that the allegedly false implication was not substantially true.

(5) "Wall of Fame"

Plaintiff argues that the article falsely implied that he put signed photos of athletes on his walls to mislead patients. Insofar as it appears from the evidence on the motion to strike, the article fully and fairly reported all of the facts bearing on plaintiff's intentions in this regard.

In his declaration, plaintiff said that he treated all of the athletes pictured; he is quoted to the same effect in the article. Plaintiff declared that the photos all had "custom signatures," and that he did not purchase any of the photos he displayed; the article similarly described the athletes pictured as "thanking the podiatrist for taking good care of them," and accused "a doctor (from another state)," not plaintiff, of buying autographs for display.

Most importantly, plaintiff has not disputed the article's account of what he told the reporter about the photos and the impression they made. In the article, he acknowledged an understanding 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. His reported statements were that: when he told patients he had treated all the athletes pictured, he did not mean he had performed surgery on them; when he was asked how he had treated the athletes, he admitted fitting most of them with supports; and, while patients sometimes "got excited" by the pictures, if they erroneously assumed from seeing them "that I did a lot of foot implants, they should have asked." Thus, even if the article could, as plaintiff argues, be taken to imply that he intentionally sought to mislead patients with the photos, that implication arose entirely from undisputed facts rather than any editorializing on the part of the Newspaper, and appellant cites no authority making the alleged implication actionable under those circumstances.

(6) Gist of the Article

Plaintiff has also failed to make a prima facie case that the article's gist was not substantially true. It is undisputed that some patients and former colleagues got the impression that plaintiff had ongoing, extensive relationships with the 49ers, and it is not effectively disputed that he had essentially no connection with 49er players after 1989. Plaintiff does not deny initially telling the reporter that he had "done Montana a lot," and later admitting that he had only fitted Montana for orthotics and helped him once with an in-grown toenail. Plaintiff does not deny the article's report that he exaggerated his work with athletes when trying to land a position with the Sacramento Kings basketball team, a job that, in his words, would have given him a "a big, big marketing benefit." It is undisputed that, as the article stated, plaintiff testified in an Arizona case that he was still receiving consulting calls from the Warriors basketball "team[ ]" in 2001, when he had in fact not received a call from that team for many years. The article went down a list of athletes plaintiff claimed as clients, who when contacted had nothing good, or nothing at all, to say about plaintiff; only one, Tim Hardaway, even confirmed that plaintiff had fitted him for orthotics. Plaintiff filed no testimonial from any athlete in opposition to the motion to strike, only a ledger of sums paid for orthotics. Given all of what plaintiff does not dispute or effectively controvert, it appears to be substantially true, on the record of this case, that he did in fact exaggerate his relationships with famous athletes to market his practice as the article charged.

(7) 100 Percent Success Rate

This leaves only the article's allegedly false statement that plaintiff "ha[d] boasted of his 100 percent success rate." In his declaration plaintiff denied ever promising a 100 percent success rate to patients. Former patient Daniel Williams declared in support of the motion that when he went to plaintiff with a heel spur problem, plaintiff told him that "he had a surgery that only he performed that was 100% effective." Thus, while the article appeared to say that plaintiff had claimed without qualification to be infallible, the evidence on the motion showed that this claim may have been made, if at all, as to only one surgical technique. Since no professional, however skilled, is infallible, plaintiff might conceivably have been exposed to "ridicule" or "injure[d] ... in his occupation" (Civ.Code, § 45[defining "libel") if he were thought to have boasted of a 100 percent success rate. However, this one statement alone is not actionable.

In Partington v. Bugliosi (1995) 56 F.3d 1147, plaintiff Partington, an attorney, sued the defendant for falsely implying in a book that he had poorly represented a client in a murder case. After determining that none of the book's allegedly false implications was actionable, the court turned to Partington's argument that a passage in the book was factually inaccurate, and found "the factual misstatements if any are, in the circumstances of this case, of minor importance.... Courts have consistently rejected attempts to base damage claims upon minor factual errors when the gist of the work, taken as a whole, cannot serve as the basis for a defamation or false light claim.... We must evaluate Partington's final claim in light of the general picture which exists independent of the statement on which the claim is based. If, as Partington himself contends, all of the other contested statements -- which we hold protected -- would lead a reader to believe that he represented his client poorly, the additional item (even assuming it includes factual errors) will not in any way affect the reader's view of Partington. The light in which this remaining claim puts Partington is precisely the light in which he has already been put by material that is protected by the First Amendment. Under these circumstances, the additional example of which Partington complains cannot support a false light action." (Id. at p. 1161.)

We reach the same conclusion for the same reason here on the allegedly false report of the 100 percent success rate boast. The gist of the article, as we have said, was that plaintiff solicited patients by exaggerating his professional experience. The alleged boast was at most a minor instance of this behavior among many others reported at greater length in the article, and as such would not have affected the reader's view of plaintiff. Since, as we have concluded, the gist of the article cannot serve as the basis for a defamation claim, neither can the minor error alleged as to the passing reference to the boast. (Partington v. Bugliosi, supra, 56 F.3d at p. 1161.)

D. Discovery

Plaintiff contends that the court erred in denying his motion for leave to conduct discovery. (See § 425.16, subd. (g) [for good cause shown court may permit discovery after filing of motion to strike].) The ruling is reviewed solely for an abuse of discretion. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 593).

A request for discovery in opposition to an anti-SLAPP motion should be determined with reference to the issues raised in the motion. (The Garment Workers Center v. Superior Court (2004) 117 Cal.App.4th 1156, 1162.) Here, for example, plaintiff argues that discovery should have been granted to reveal what the reporter said to Craig before Craig made his allegedly slanderous statements. Plaintiff submits that, in the absence of such discovery, it must be assumed that, when Craig made the comments, "he was fully aware that if he claimed not to remember [plaintiff] and not to have needed foot or ankle treatment, he would contribute to the impression that [plaintiff] was a liar and a fraud." However, evidence of what the reporter told Craig was not reasonably calculated to shed any light on the matters at issue, namely, whether Craig recalled his isolated contacts with plaintiff many years earlier, or on what he considered to constitute a "relationship" with plaintiff. It is argued that discovery was necessary on plaintiff's alleged status as a public figure, but that is an issue on which plaintiff prevails without discovery. It is also argued that discovery was needed as to the status of the BPM proceedings on which the Newspaper's privilege argument was based, but plaintiff, again, has the better of that argument without having to marshal any additional facts. Plaintiff further argues that discovery should have been granted in connection with his claim against Bonds, but that claim is untenable because of plaintiff's failure to deny Bonds's assertions, not because of any failure to grant discovery.

Denial of the discovery request was neither prejudicial nor an abuse of discretion.

E. Appeal No. A108923

In his appeal from the order awarding attorney's fees to Bonds and the Newspaper, plaintiff argues only that, if the granting of the motions to strike is reversed, the fee orders must also be reversed because defendants will no longer be the prevailing parties. Since we are affirming the ruling on the motions to strike, there is no cause to disturb the fee award.

III. CONCLUSION

The order granting the motions to strike and denying discovery, and the order awarding attorney's fees, are affirmed.

We concur: SEPULVEDA, Acting P.J., and RIVERA, J.