Martin Van Der Hoeven, an Individual; Abflex Usa, Inc., Acalifornia Corporation, Plaintiffs-appellants, v. Rodale Press, Inc., a Pennsylvania Corporation, Defendant-appellee, 134 F.3d 381 (9th Cir. 1998)

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U.S. Court of Appeals for the Ninth Circuit - 134 F.3d 381 (9th Cir. 1998)

Submitted Jan. 6, 1998. Decided Jan. 21, 1998


Before: LAY**  GOODWIN, and SCHROEDER, Circuit Judges.


MEMORANDUM* 

Abflex U.S.A. and Martin Van Der Hoeven appeal the district court's summary judgment in favor of Rodale Press.

The district court did not err in concluding that a statement in the magazine article, to the effect that Abflex is a collection of plastic and glue and is "shoddy", was a non-actionable statement. The device is made of plastic and glue, and the adjective is an expression of opinion rather than objective fact. Underwager v. Channel 9 Australia, 69 F.3d 361, 367 (9th Cir. 1995); See also McCabe v. Rattiner, 814 F.2d 839, 842 (1st Cir. 1987) (description of timeshare condominium sales as a "scam" is a constitutionally-protected statement of opinion). Even assuming the statement could be viewed as a false statement of objective fact, there is no showing of malice sufficient to create a triable issue.

The district court also did not err in concluding the deletion from the quotation created a false statement. The deletion, in context, did not change the meaning of the quotation. See Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S. Ct. 2419, 2433 (1991). Even if the deletion could be reasonably interpreted as changing the meaning of the quotation, there is no evidence of malice sufficient to go to a jury. The expert evidence upon which appellants rely does not materially conflict with the opinion of the expert, as quoted in the article, so as to indicate malice.

AFFIRMED.

 **

The Honorable Donald P. Lay, Senior United States Circuit Judge for the Eighth Circuit, sitting by designation

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3