CRAIG ELMER CHAPMAN, AKA Owl v. JOURNAL CONCEPTS, INC., a California corporation, DBA The Surfer’s Journal

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRAIG ELMER CHAPMAN, AKA Owl,
Plaintiff - Appellant,
v.
JOURNAL CONCEPTS, INC., a
California corporation, DBA The Surfer’s
Journal; JEFF JOHNSON; STEVE
PEZMAN,
Defendants - Appellees,
and
DEBEE PEZMAN; DAN MILNOR;
SCOTT HULET; JEFF DIVINE,
Defendants.
No. 09-16303
D.C. No. 1:07-cv-00002-JMS-
LEK
MEMORANDUM*
Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, District Judge, Presiding
Argued and Submitted October 12, 2010
Honolulu, Hawaii
FILED
OCT 27 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.
Craig Elmer Chapman sued Journal Concepts, Inc., Jeff Johnson and Steve
Pezman (collectively “Journal Concepts”) for defamation, in connection with a
magazine article that Johnson and Pezman wrote about Chapman. Chapman
appeals from the district court’s decisions on the parties’ motions for summary
judgment, the parties’ motions in limine, Journal Concept’s motion for judgment as
a matter of law and Chapman’s motion for a new trial. We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
On summary judgment, the district court made a ruling regarding
Chapman’s status as a public figure. We need not address this ruling because we
affirm the district court on other dispositive grounds.
The district court did not err in holding that references in the article to
William S. Borroughs are not actionable as defamation. The references are literary
allusions that cannot reasonably be understood to express statements of fact about
Chapman. See Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1193-94 (9th
Cir. 1989).
The district court did not abuse its discretion in denying Chapman’s motion
to exclude evidence related to Chapman’s drug use. Evidence that Chapman may
have used drugs was probative of Pezman’s state of mind when he included this

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statement in the article, and his defense that the statement was substantially true
and thus not defamatory. Further, the district court instructed the jury that the
statements were being offered only to establish Pezman’s state of mind, and not for
their truth.
The district court did not abuse its discretion by excluding evidence related
to the life and work of William S. Borroughs. The references to Borroughs were
not at issue in the trial, and the evidence was not necessary to provide context to
the article at issue. To the extent that the evidence was probative of the state of
mind of Johnson and Pezman, the district court did not abuse its discretion in
holding that the probative value was outweighed by the potential prejudice to
Journal Concepts and the likelihood of jury confusion. The district court also
properly excluded as irrelevant and likely to confuse the jury evidence related to a
pre-publication investigation that Pezman conducted for an article that was not at
issue in the trial and was published more than a decade earlier.
The district court did not err in granting Journal Concepts’ motion for
judgment as a matter of law with respect to two of the allegedly defamatory
statements at issue in the trial. The first statement comes from an interview that
Pezman conducted with an individual named Jackie Baxter, which Pezman
recorded. Pezman quotes Baxter at length in the article. Chapman alleged that two

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sentences from Baxter’s quote were defamatory. Chapman’s argument rests on the
contention that Pezman conducted the interview after writing the commentary, and
directed Baxter to make the statement. Baxter, however, is illiterate, and his quote
in the article is very similar to the interview transcript. The transcript reflects that
the conversation was informal and off-the-cuff, not scripted and staged. Given
this, the district court properly held that no reasonable juror could conclude that
Pezman coached Baxter to make the statement.
The second statement relates to an interview that Pezman conducted with
Herbie Fisher. Although Pezman did not quote Fisher accurately in the article,
“[m]inor inaccuracies do not amount to falsity so long as the substance, the gist,
the sting of the libelous charge [is] justified.” Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 517 (1991) (internal quotation marks omitted). Here, there is
only a minor difference between what Fisher said during the interview and the
quotation in the article; the gist of the statements is the same.
The district court did not err in denying Chapman’s motion for a new trial.
Although the parties referred to Chapman’s 50(b) motion at argument, that issue is
not before us on appeal. The jury found that Chapman had failed to prove that the
statements at issue in the trial were false. There was sufficient evidence on the
record to support this finding. Chapman argues that the jury should have found

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that Pezman and Johnson acted with actual malice. Because the jury found that
Chapman had failed to prove falsity, it never reached the issue of actual malice.
See Miracle v. New Yorker Magazine, 190 F. Supp. 2d 1192, 1198 (D. Haw. 2001)
(stating that under Hawaii law, defamation requires “a false and defamatory
statement concerning another” and “fault amounting at least to negligence . . . and
actual malice where the plaintiff is a public figure”). Accordingly, we do not need
to decide whether the evidence would support a finding of actual malice.
AFFIRMED.

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Chapman v. Journal Concepts, Inc., Case No. 09-16303
Rawlinson, Circuit Judge, concurring:
I concur in the result.
FILED
OCT 27 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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