CARLOS ENRIQUE LUNA LAM v. UNIVISION COMMUNICATIONS, INC.

Third District Court of Appeal

State of Florida

Opinion filed October 13, 2021.

Not final until disposition of timely filed motion for rehearing.

________________

No. 3D19-2204

Lower Tribunal No. 19-16891

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Carlos Enrique Luna Lam, et al.,

Appellants,

vs.

Univision Communications, Inc., et al.,

Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E.

Trawick, Judge.

Nelson Mullins Broad and Cassel, and Beverly A. Pohl (Ft.

Lauderdale), and Mark F. Raymond, and Amy Steele Donner; Harder LLP,

and Charles J. Harder, and Dilan Esper, and Lan P. Vu, and Ryan J.

Stonerock (Beverly Hills, CA), for appellants.

Podhurst Orseck, P.A., and Stephen F. Rosenthal, and Peter Prieto,

and Alissa Del Riego; Ballard Spahr LLP, and Leita Walker (Minneapolis,

MN), Seth D. Berlin, and Lauren Russell (Washington, DC), for appellees.

Before LINDSEY, HENDON, and BOKOR, JJ.

LINDSEY, J.

Appellants Carlos Enrique Luna Lam and Iglesia Cristiana Casa de

Dios (Plaintiffs below) appeal from a final order dismissing their defamation

action with prejudice pursuant to Florida’s Anti-SLAPP Statute, section

768.295, Florida Statutes (2021). Though we agree with Appellants that

Florida’s Anti-SLAPP statute does not create a different motion to dismiss

standard, we nevertheless affirm the trial court’s dismissal because

Appellants failed to plead facts that, if proven, would establish actual malice.

However, we reverse the trial court’s dismissal with prejudice, and we

remand without prejudice to amend the Complaint.

I. BACKGROUND

Carlos Enrique Luna Lam is a pastor and co-founder of Iglesia

Cristiana Casa de Dios in Guatemala. In December 2018, Appellee

Univision Communications, Inc. aired a television special that profiled

several Latin American megachurches and pastors, including Luna (the

“Original Broadcast”).1 Univision also published several related articles

1

The special was entitled “Los Magnates de Dios” (Magnates of the Lord).

Luna’s segment was called “Todo por Cash” (Everything for Cash), a

reference to Luna’s nickname, “Cash Luna.” According to Luna, this

nickname came from his inability to pronounce his name “Carlos” when he

was a child.

2

online. The Original Broadcast and the written articles include statements

from Jorge Mauricio Herrera Bernal, a pilot who has admitted to transporting

cocaine for a Columbian cartel and who claimed to be a United States Drug

Enforcement Administration informant. 2 Herrera Bernal asserted that Luna

accepted money to build his church complex from his next-door neighbor,

Marllory Chacón, a convicted drug trafficking cartel boss known as the

“Queen of the South.”

Luna and Casa de Dios (collectively, “Plaintiffs”) brought the underlying

defamation action against three Univision entities and two journalists who

worked on the report (collectively, “Univision”). 3 According to the Complaint,

“Univision falsely accused Pastor Luna of, among other things, accepting

and laundering large amounts of money from a convicted drug trafficker,

[Chacón], and using that money to build a new church for Casa de Dios.”

The Complaint goes on to specifically identify many alleged defamatory

statements having to do with Luna’s ties to Chacón. The Complaint further

alleges that Univision’s primary source, Herrera Bernal, was not reliable and

2

Univision also interviewed a second, corroborating source, who appeared

anonymously.

3

There are three Univision entities: Univision Communications, Inc.;

Univision Interactive Media, Inc.; and The Univision Network Limited

Partnership. The two journalists are Gerardo Reyes and Peniley Ramírez.

Ramírez was not served below and is therefore not a party to this appeal.

3

provided false information and that Univision “knew the statements were

false, had serious doubts as to their truth, or published them with reckless

disregard for, and in purposeful avoidance of, the truth.”

Univision moved to dismiss the Complaint with prejudice pursuant to

Florida’s Anti-SLAPP statute, section 768.295. In its motion, Univision

argued that Florida’s Anti-SLAPP statute imposed a “materially higher

burden” on Plaintiffs than a typical motion to dismiss. Univision also argued

that because Plaintiffs are public figures, the “actual malice” standard for

defamation applied and that the alleged facts, even if true, were insufficient

as a matter of law to establish actual malice.

In their Response, Plaintiffs argued that the Anti-SLAPP statute does

not create a new, separate Anti-SLAPP motion with different substantive

standards. With respect to the actual malice standard for defamation,

Plaintiffs did not dispute the standard applied, but they asserted the

allegations in the Complaint were sufficient to allege actual malice.

Plaintiffs served over 230 discovery requests, and Univision moved to

stay discovery while its motion to dismiss was pending. The parties

ultimately stipulated to stay discovery. The stipulated order recognized that

the parties “do not agree as to their respective burdens for a motion to

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dismiss under the Anti-SLAPP Statute.” The parties agreed to limit their

submissions to the following:

(a) Defendants’ motion, (b) the Parties’ respective

memoranda of law, (c) the Complaint and its exhibits,

(d) the news articles, broadcasts, and/or publications

referenced in the Complaint and their certified

translations, and (e) items capable of judicial notice.

The Parties further agree that the Court may consider

only these items in deciding the Motion to Dismiss.

(Emphasis added).

At the conclusion of the hearing on Univision’s motion to dismiss, the

judge asked each side to submit proposed orders. The trial court adopted

Univision’s proposed order, which concludes that Florida’s Anti-SLAPP

statute places the burden on Plaintiffs—not on Univision—to prove their

claims are not without merit. The order also concludes that Plaintiffs did not

adequately plead facts that, if proven, would establish actual malice. Finally,

the order dismisses the Complaint with prejudice “[b]ecause amendment to

the Complaint would be futile . . . .” Plaintiffs timely appealed.

II. ANALYSIS

The order on appeal has two components. First, it determines that

Florida’s Anti-SLAPP statute shifts the burden to Plaintiffs to prove their

claims are not “without merit.” And second, the order concludes that

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Plaintiffs did not adequately plead facts that, if proven, would establish actual

malice.

A. Florida’s Anti-SLAPP Statute

According to the order on appeal, Florida’s Anti-SLAPP statute

imposes a heightened burden on Plaintiffs by requiring “Plaintiffs—not

Defendants—to prove their claims are not ‘without merit.’” Plaintiffs argue

that a motion to dismiss filed pursuant to the Anti-SLAPP statute is governed

by the same standards as an ordinary motion to dismiss under the Florida

Rules of Civil Procedure. That is, “upon a motion to dismiss a complaint for

failure to state a cause of action, all material allegations of the complaint are

taken as true. Those allegations are then reviewed in light of the applicable

substantive law to determine the existence of a cause of action.” Peeler v.

Indep. Life & Acc. Ins. Co., 206 So. 2d 34, 36 (Fla. 3d DCA 1967) (citations

omitted); see also United Auto. Ins. Co. v. Law Offices of Michael I. Libman,

46 So. 3d 1101, 1103–04 (Fla. 3d DCA 2010) (“A motion to dismiss under

rule 1.140(b) tests whether the plaintiff has stated a cause of action, not

whether the plaintiff will prevail at trial. Therefore, ‘[a]ll allegations of the

complaint must be taken as true and all reasonable inferences drawn

therefrom must be construed in favor of the non-moving party.’” (citations

and internal quotation marks omitted)).

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This is an issue of first impression for this Court, the resolution of which

depends on the interpretation of section 768.295. We review the trial court’s

interpretation of the statute de novo and begin, as always, with the text of

the statute. See, e.g., Page v. Deutsche Bank Tr. Co. Americas, 308 So. 3d

953, 958 (Fla. 2020).

In 2000, the Florida Legislature enacted section 768.295 for the

purpose of prohibiting government entities from engaging in “Strategic

Lawsuits Against Public Participation” or “SLAPP” suits. In 2015, the statute

was amended to extend this prohibition to “persons.” The 2015 amendment

also expanded protections to “free speech in connection with public issues.”

The statute’s stated purpose is as follows:

(1) It is the intent of the Legislature to protect the right

in Florida to exercise the rights of free speech in

connection with public issues, and the rights to

peacefully assemble, instruct representatives, and

petition for redress of grievances before the various

governmental entities of this state as protected by the

First Amendment to the United States Constitution

and s. 5, Art. I of the State Constitution. It is the public

policy of this state that a person or governmental

entity not engage in SLAPP suits because such

actions are inconsistent with the right of persons to

exercise such constitutional rights of free speech in

connection with public issues. Therefore, the

Legislature finds and declares that prohibiting such

lawsuits as herein described will preserve this

fundamental state policy, preserve the constitutional

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rights of persons in Florida, and assure the

continuation of representative government in this

state. It is the intent of the Legislature that such

lawsuits be expeditiously disposed of by the courts.

§ 768.295(1), Fla. Stat. (2021).

The statute further provides for the expeditious resolution of a lawsuit

in violation of the statute as follows:

(4) A person or entity sued by a governmental entity

or another person in violation of this section has a

right to an expeditious resolution of a claim that the

suit is in violation of this section. A person or entity

may move the court for an order dismissing the

action or granting final judgment in favor of that

person or entity. The person or entity may file a

motion for summary judgment, together with

supplemental affidavits, seeking a determination that

the claimant’s or governmental entity’s lawsuit has

been brought in violation of this section. The claimant

or governmental entity shall thereafter file a response

and any supplemental affidavits. As soon as

practicable, the court shall set a hearing on the

motion, which shall be held at the earliest possible

time after the filing of the claimant’s or governmental

entity’s response. The court may award, subject to

the limitations in s. 768.28, the party sued by a

governmental entity actual damages arising from a

governmental entity’s violation of this section. The

court shall award the prevailing party reasonable

attorney fees and costs incurred in connection with a

claim that an action was filed in violation of this

section.

§ 768.295(4), Fla. Stat. (2021)

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As set forth above, the statute explicitly states that a defendant “may

move the court for an order dismissing the action or granting final judgment

. . . .” Id. However, the statute is silent as to any heightened burden on the

plaintiff that differs from the ordinary motion to dismiss standard. This alone

prevents us from agreeing with Univision’s position that the statue imposes

a heightened burden on plaintiffs. See Antonin Scalia & Bryan A. Garner,

Reading Law: The Interpretation of Legal Texts 93 (2012) (“Nothing is to be

added to what the text states or reasonably implies (casus omissus pro

omisso habendus est). That is, a matter not covered is to be treated as not

covered.”).

In the order on appeal, the trial court concluded that Plaintiffs’

argument that the ordinary motion to dismiss standard applied contravened

the plain language, not of the statute, but of Gundel v. AV Homes, Inc., 264

So. 3d 304 (Fla. 2d DCA 2019). 4 In Gundel, the Second District discussed

the dismissal standard applicable under Florida’s Anti-SLAPP statute. The

court recognized, as we have, that “the statute is silent as to the burden or

procedure for considering a motion to dismiss.” Id. at 314. However, the

4

We recognize that Gundel was the only district court decision interpreting

Florida’s Anti-SLAPP statute and was therefore binding on the trial court.

See Pardo v. State, 596 So. 2d 665, 666 (“[I]n the absence of interdistrict

conflict, district court decisions bind all Florida trial courts.”).

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court proceeded to adopt a two-step burden-shifting analysis that is similar

to the test used in states with explicit burden-shifting provisions, specifically

using Maine as an example:

In considering motions to dismiss as to its anti-

SLAPP statute, the Maine Supreme Court has stated

that “the defendant carries the initial burden to show

that the suit was based on some activity that would

qualify as an exercise of the defendant’s First

Amendment right to petition the government” such

that the anti-SLAPP statute applies and then “the

burden falls on the plaintiff to demonstrate that the

defendant’s activity” is actionable.

Id. (quoting Schelling v. Lindell, 942 A.2d 1226, 1229 (Me. 2008)).

Unlike Florida’s statute, however, Maine’s statute provides for a

“special motion to dismiss” and explicitly sets forth the burden-shifting in the

statute. See Me. Rev. Stat. tit. 14, § 556 (“The court shall grant the special

motion, unless the party against whom the special motion is made shows

that the moving party’s exercise of its right of petition was devoid of any

reasonable factual support or any arguable basis in law and that the moving

party’s acts caused actual injury to the responding party. In making its

determination, the court shall consider the pleading and supporting and

opposing affidavits stating the facts upon which the liability or defense is

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based.”). 5 Because the language in Maine’s statute is materially different

from the language in Florida’s statute—which does not contain a burden-

shifting provision—we do not consider the case law from Maine applicable

here.

Most states have some form of anti-SLAPP legislation, which varies

greatly in scope and strength.6 Many state statutes require the movant to

bear the initial burden of establishing that the anti-SLAPP statute applies. If

this initial burden is met, some statutes, like Maine’s, explicitly shift the

burden to the plaintiff. For example, in California, “[a] cause of action against

a person arising from any act of that person in furtherance of the person’s

right of petition or free speech under the United States Constitution or the

California Constitution in connection with a public issue shall be subject to a

5

In at least one state, anti-SLAPP legislation that shifted the burden to the

plaintiff has been found to be unconstitutional. See Davis v. Cox, 351 P.3d

862, 874–75 (Wash. 2015) (“The legislature may enact anti-SLAPP laws to

prevent vexatious litigants from abusing the judicial process by filing frivolous

lawsuits for improper purposes. But the constitutional conundrum that RCW

4.24.525 creates is that it seeks to protect one group of citizen’s

constitutional rights of expression and petition—by cutting off another

group’s constitutional rights of petition and jury trial. This the legislature

cannot do.”), abrogated on other grounds, Maytown Sand & Gravel, LLC v.

Thurston County, 423 P.3d 223 (2018).

6

According to the Public Participation Project, which tracks anti-SLAPP

legislation, 33 states and the District of Columbia have anti-SLAPP laws.

See State Anti-SLAPP Laws—Public Participation Project, http://www.anti-

slapp.org/your-states-free-speech-protection (last visited October 12, 2021).

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special motion to strike, unless the court determines that the plaintiff has

established that there is a probability that the plaintiff will prevail on the

claim.” Cal. Code Civ. Proc. § 425.16(b)(1) (emphasis added); see also

Samuel J. Morley, Florida’s Expanded Anti-SLAPP Law: More Protection for

Targeted Speakers, Fla. B.J., Nov. 2016 (describing the two-step analysis in

California, Texas, and other states with similar burden shifting anti-SLAPP

legislation). Many of these statutes predate Florida’s. If our Legislature had

intended to adopt this burden-shifting approach, it no doubt would have

enacted a statute with similar language.

Federal courts interpreting Florida’s Anti-SLAPP statute have likewise

concluded that the statute does not impose a heightened burden on the

plaintiff. Because a federal court exercising diversity jurisdiction cannot

apply a state statute if it conflicts with the Federal Rules of Civil Procedure,

federal courts must sometimes interpret state anti-SLAPP statutes to

determine whether they contain a burden-shifting provision. See Carbone v.

Cable News Network, Inc., 910 F.3d 1345, 1349 (11th Cir. 2018). In

Carbone, for example, the Eleventh Circuit considered Georgia’s Anti-

SLAPP statute. Because Georgia’s statute requires the plaintiff to establish

“a probability” of prevailing, it imposed a burden that conflicted with the

12

Federal Rules of Civil Procedure and, therefore, could not be applied in

federal court. Id. at 1350-51. 7

7

More specifically, the Carbone court explained as follows:

The Georgia anti-SLAPP statute also compromises

the joint operation of Rules 8, 12, and 56. Taken

together, these Rules provide a comprehensive

framework governing pretrial dismissal and

judgment. Under Rule 12(d), a motion to dismiss for

failure to state a claim under Rule 12(b)(6) or a

motion for judgment on the pleadings “must be

treated as one for summary judgment under Rule 56”

if “matters outside the pleadings are presented to and

not excluded by the court....” In other words, the

Rules contemplate that a claim will be assessed on

the pleadings alone or under the summary judgment

standard; there is no room for any other device for

determining whether a valid claim supported by

sufficient evidence to avoid pretrial dismissal.

In short, Rules 8, 12, and 56 express “with

unmistakable clarity” that proof of probability of

success on the merits “is not required in federal

courts” to avoid pretrial dismissal, and that the

evidentiary sufficiency of a claim should not be tested

before discovery. [Hanna v. Plumer, 380 U.S. 460,

470 (1965)]. But the relevant provisions of the

Georgia anti-SLAPP statute explicitly require proof of

a probability of success on the merits without the

benefit of discovery. The result is a “direct collision”

between the Federal Rules and the motion-to-strike

provision of the Georgia statute. [Id. at 472].

Id.

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In Bongino v. Daily Beast Co., LLC, 477 F. Supp. 3d 1310, 1323 (S.D.

Fla. 2020), the Southern District considered whether Florida’s Anti-SLAPP

statute conflicted with the Federal Rules of Civil Procedure. The court

recognized that “[t]he Eleventh, Fifth, D.C., and now Second Circuits agree:

certain states’ iterations of the anti-SLAPP statute . . . conflict with the

Federal Rules of Civil Procedure because they raise the bar for a plaintiff to

overcome a pretrial dismissal motion.” Id. at 1322–23. But this is “[n]ot so

for Florida’s anti-SLAPP statute” because “it does not require the plaintiff to

establish a probability that he will prevail on the claim asserted in the

complaint. Nor does Florida’s statute contemplate a substantive, evidentiary

determination of the plaintiff’s probability of prevailing on his claim. At bottom,

Florida’s statute is a garden variety fee shifting provision, which the Florida

legislature enacted to accomplish a fundamental state policy—deterring

SLAPP suits.” Id. at 1323 (citations and internal quotation marks omitted);

see also Corsi v. Newsmax Media, Inc., 519 F. Supp. 3d 1110, 1128 (S.D.

Fla. 2021) (“Florida’s statute does not conflict with any Federal Rule of Civil

Procedure.”); Isaac v. Twitter, Inc., 21-CV-20684, 2021 WL 3860654, at *6

(S.D. Fla. Aug. 30, 2021) (“At bottom, Florida’s statute is a garden variety

fee shifting provision, which the Florida legislature enacted to accomplish a

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‘fundamental state policy’—deterring SLAPP suits.” (quoting Bongino, 477 F.

Supp. 3d at 1323). 8

In short, because the plain language of Florida’s Anti-SLAPP statute

does not shift the burden to Plaintiffs to establish that their claims have merit,

we decline to follow the approach in Gundel and add to the statue that which

is not in its text.

B. Actual Malice

Having established that Florida’s Anti-SLAPP statute does not impose

a heightened burden on the Plaintiffs in this case, we turn now to the merits

of Univision’s motion. “A trial court’s ruling on a motion to dismiss for failure

to state a cause of action is an issue of law, and therefore, our standard of

review is de novo.” Schilling v. Herrera, 952 So. 2d 1231, 1234 (Fla. 3d DCA

2007).

It is undisputed that the actual malice standard for defamation applies

because Plaintiffs are public figures. See New York Times Co. v. Sullivan,

8

In Wentz v. Project Veritas, No: 617CV1164ORL18GJK, 2019 WL 910099,

at *3 (M.D. Fla. Feb. 22, 2019), aff’d sub nom. Wentz v. Veritas, No:

617CV1164ORL18GJK, 2019 WL 11504451 (M.D. Fla. Apr. 29, 2019), the

court quoted Gundel’s burden-shifting language. The issue before the court

was whether the defendants’ discovery request was relevant to their

potential anti-SLAPP defense. The court held that the discovery request was

relevant based on the language in the statute. The court did not address

whether Gundel’s burden-shifting analysis applied as that issue was not

before the court.

15

376 U.S. 254 (1964). Actual malice occurs when a statement is made “with

knowledge that it was false or with reckless disregard of whether it was false

or not.” Id. at 280. “[R]eckless conduct is not measured by whether a

reasonably prudent man would have published, or would have investigated

before publishing. There must be sufficient evidence to permit the

conclusion that the defendant in fact entertained serious doubts as to the

truth of his publication. Publishing with such doubts shows reckless

disregard for truth or falsity and demonstrates actual malice.” Readon v.

WPLG, LLC, 317 So. 3d 1229, 1235 (Fla. 3d DCA 2021), review denied,

SC21-893, 2021 WL 3523557 (Fla. Aug. 11, 2021) (quoting St. Amant v.

Thompson, 390 U.S. 727, 731 (1968)).

Plaintiffs contend Univision published with actual malice because it

should have been aware that its primary source, Herrera Bernal, is a criminal

whose competency was questioned in a separate criminal case. Moreover,

Plaintiffs further argue that Univision should have been aware of certain

“outrageous” allegations Herrera Bernal made in a series of pro se lawsuits.

In short, Plaintiffs’ allegations concern Univision’s failure to adequately

investigate Herrera Bernal’s background.

We agree with the trial court that Plaintiffs failed to plead sufficient facts

to show that Univision published with sufficient doubts as to the truth of its

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publication. As this Court recently explained, “‘[a]ctual malice requires more

than a departure from reasonable journalistic standards . . . [t]hus, a failure

to investigate, standing on its own, does not indicate the presence of actual

malice.’ Instead, ‘there must be some showing that the defendant

purposefully avoided further investigation with the intent to avoid the truth.’”

Readon, 317 So. 3d at 1235 (quoting Michel v. NYP Holdings, Inc., 816 F.

3d 686, 701–02 (11th Cir. 2016)).

While it is true that Herrera Bernal’s competency was questioned in a

separate criminal case, the judge in that proceeding found Bernal competent

in two separate rulings.9 And it is also true that Herrera Bernal filed several

pro se complaints with some implausible allegations. But even assuming

Univision knew about Herrera Bernal’s pro se filings, nothing in these

complaints contradict Herrera Bernal’s account that Chacón gave money to

Luna. In fact, the complaints consistently allege that she did. See Talley v.

Time, Inc., 923 F.3d 878, 903 (10th Cir. 2019) (“Sources need not be

paragons of virtue for journalists safely to rely on them.” (quoting 1 Robert

9

Though this information is outside of the Complaint, the parties stipulated

the trial court could consider it in deciding the motion to dismiss. Cf. Corsi

519 F. Supp. 3d at 1118–19 (“[W]hen considering a 12(b)(6) motion to

dismiss, the court’s review is generally ‘limited to the four corners of the

complaint.’ However, the court may also consider ‘documents incorporated

into the complaint by reference and matters of which a court may take judicial

notice.’” (citations omitted)).

17

D. Sack, Sack on Defamation: Libel, Slander, and Related Problems §

5:5.2(C) at 5-109 (5th ed. 2017))).

Plaintiffs’ allegations simply do not satisfy the actual malice standard.

In Readon, this Court recognized a limited set of circumstances in which

actual malice might arise from a failure to investigate. 317 So.3d at 1236.

The allegations here, even if true, do not establish that Univision’s Original

Broadcast and online publications “were fabricated, wholly imaginary, based

on an unverified anonymous phone call, inherently improbable, or obviously

worthy of doubt.” See id. (quoting Michel, 816 F. 3d at 705). Because the

Complaint fails to satisfy the actual malice standard, we affirm the trial court’s

dismissal. However, we remand to permit Plaintiffs an opportunity to amend

their complaint. See id. at 1238 (“Generally, refusal to allow amendment of

a pleading constitutes an abuse of discretion unless it clearly appears that

allowing the amendment would prejudice the opposing party; the privilege to

amend has been abused; or the amendment would be futile.”). 10

10

“[A]s an action progresses, the privilege of amendment progressively

decreases to the point that the trial judge does not abuse his [or her]

discretion in dismissing with prejudice.” Readon, 317 So. 3d at 1238 (quoting

Kohn v. City of Miami Beach, 611 So. 2d 538, 539 (Fla. 3d DCA 1992)). In

Readon, this Court affirmed the trial court’s dismissal with prejudice of the

third amended complaint, explaining that “with amendments beyond the third

attempt, dismissal with prejudice is generally not an abuse of discretion.” Id.

(quoting Kohn, 611 So. 2d at 539). Here, by contrast, Plaintiffs have not yet

amended their original complaint.

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III. CONCLUSION

As set forth above, we decline to follow the Second District’s decision

in Gundel because the plain text of Florida’s Anti-SLAPP statute does not

impose a heightened burden on Plaintiffs. We nevertheless affirm the trial

court’s dismissal because Plaintiffs failed to satisfy the actual malice

standard. We reverse only with respect to the trial court’s dismissal with

prejudice. Moreover, to the extent this decision is in direct conflict with

Gundel, we certify conflict. See Art. 5, § 3(b)(4), Fla. Const.

Affirmed in part, reversed in part, and remanded without prejudice to

amend.

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