California Anti-SLAPP Project


Okun v. Superior Court (concluded)


The innuendo pleading is directed solely at the first sentence, concerning the John D. MacDonald novel. It is alleged that the novel, titled Condominium, "is about a fictional company, the Marliss Corporation, which bribes public officials and engages in other illegal activities so that it can build dangerously defective buildings." Okun's letter is alleged to have referred to plaintiff as the "Florida land wheeler-dealers" and to have been intended and reasonably understood as meaning that plaintiff "was engaging in illegal and collusive activities similar to those of the Marliss Corporation in Condominium." The allegations of falsity, omission of material facts, and malice are parallel to those in the second cause of action.

Clearly the letter's statement about the novel is one that "assume(s) the character ... of opinion" when "potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts ... to persuade ... by use of epithets, fiery rhetoric or hyperbole" (Gregory, supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 873, 552 P.2d 1169). Though perhaps it imputes vigorous lobbying to plaintiff and denounces plaintiff's project as inimical to the city's interest, the letter cannot fairly be read as charging bribery or other crime.

FIFTH CAUSE OF ACTION

The fifth cause ("Conspiracy to Commit Libel") alleges that beginning in January 1978 Harris, Ruden, Okun, and Does 401 through 500 "conspired to discredit (plaintiff) and destroy its reputation in the community for the purpose of stopping any development by (plaintiff)," that they did the acts described in the first, second, and third causes of action (incorporated by reference) in furtherance of the conspiracy, and that they "were motivated by malice and ill will toward (plaintiff)."

A complaint for civil conspiracy states a cause of action only when it alleges the commission of a civil wrong that causes damage. Though conspiracy may render additional parties liable for the wrong, the conspiracy itself is not actionable without a wrong. (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631, 102 Cal.Rptr. 815, 498 P.2d 1063; Chicago Title Ins. Co. v. Great Western Financial Corp. (1968) 69 Cal.2d 305, 316, 70 Cal.Rptr. 849, 444 P.2d 481; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 491, 104 Cal.Rptr. 650.) Accordingly the demurrer to the fifth cause should have been sustained if no actionable conduct is alleged in the first, second, or third causes. Having established the insufficiency of the second and third, we turn to the first.

The statements that the first cause identifies as libelous appear in an "Argument Against Proposition B" allegedly prepared by Harris, Ruden, and Does 1 through 100 and included in the "Sample Ballot and Voter Information Pamphlet" mailed to the voters in connection with the election on March 6, 1979. It reads:

ARGUMENT AGAINST PROPOSITION B

Beverly Hills has only one Industrial Area to sustain us as to an independent city. We must keep it for our community needs and not allow it to be zoned away.

Vote NO on Proposition B.

We need a place for police cars, carpentry and paint shops, city truck maintenance, park equipment, trash disposal, water facilities and other lifeline services essential to our community. These indispensable city services enable Beverly Hills to operate efficiently and at low cost. They must be contained in the Industrial Area for they are unpleasant neighbors. We cannot afford to allow developers to take over the only suitable location within our city for these vital needs. Every citizen approved General Plan designated this land to be saved for municipal and service use. The developers hired one of our Councilmen, subsequently the Fair Political Practices Commission ruled the Councilman had a conflict of interest. The General Plan was changed drastically to accommodate the developer's desires, ignoring residents' needs. The Council violated the recommendation of their own consultant and the Council-appointed citizens committees when it voted this rezoning. THIS SCHEME WILL COST THE TAXPAYERS MILLIONS. Rubbish disposal has to be moved, street intersections redesigned, businesses relocated, city services put underground, all at prohibitive costs to taxpayers. ONLY THE DEVELOPERS BENEFIT FROM THIS REZONING. They will sell condominiums at up to $1,000,000.00 each, which the taxpayers will subsidize. They will get city maintained landscaping. By the Council's own admission, these luxury condominiums will cost the city more to service than revenues they will produce. Senior Housing is being used as a deceptive cover for this "Enrich the Developers" scheme.

Don't jeopardize our city's future!
VOTE NO ON PROPOSITION B.
JOANN RUDEN, President
BETTY H. HARRIS, Chairperson
League of Women Voters of Beverly Hills
Committee to Save Beverly Hills

The alleged libel begins with "Every citizen approved General Plan designated this land to be saved ..." and ends with "Senior Housing is being used as a deceptive cover for this 'Enrich the Developers' scheme." The alleged innuendo is that defendants "intended to convey to their readers that (plaintiff) entered into a corrupt and collusive arrangement with a City Councilman which led to the City Council adopting the Zoning Ordinance ...." [FN3] The pleading of falsity, omission of material facts, and malice is parallel to that in the second and third causes of action.
[FN3] The complete innuendo pleading is as follows: "By publishing the Libelous Statement, defendants Harris, Ruden, and Does 1 through 100, inclusive, intended to convey to their readers that (plaintiff) entered into a corrupt and collusive arrangement with a City Councilman which led to the City Council adopting the Zoning Ordinance which purportedly the Council's consultant and a citizen's committee recommended against adopting; which drastically changed the General Plan unanimously adopted by the public; that would cost the City millions without benefiting the City; which would obligate the City to landscape and provide other services for the condominiums being constructed by (plaintiff); and that (plaintiff) had provided for senior citizens housing as a deceptive cover to enrich itself." Apart from the passage concerning "a corrupt and collusive arrangement," even a statement in the innuendo's exact words would not have been libelous in the context of the controversy surrounding the election.
Would an ordinary voter understand the ballot argument to mean that plaintiff entered into a "corrupt and collusive arrangement" with a councilman that lead to adoption of the zoning ordinance? The argument states that the developers (plaintiff) "hired one of our Councilmen, subsequently the Fair Political Practices Commission ruled the Councilman had a conflict of interest." That plaintiff "hired" a councilman conveys no more than they formed a business relationship. What of the FPPC ruling? One of the commission's functions is to issue advisory rulings that concern possible conflict of interest involving state or local public officials. Good faith compliance with a ruling is generally a defense against enforcement of civil or criminal sanctions. (Gov.Code, ss 83114, 87100 et seq.) The fact of a ruling that a councilman had a conflict of interest does not imply that he acted improperly on matters affected by the conflict but only that he was advised against doing so. The ballot argument does not mention bribery or other criminal conduct and does not imply undisclosed knowledge of wrongdoing. Like the letters in the second and third causes, the ballot argument could not reasonably have been interpreted by its probable readers as having a libelous meaning.

SIXTH CAUSE OF ACTION

The sixth cause is for "conspiracy to commit slander." It alleges that defendants Harris, Ruden, Okun, and Does 501 through 600 "conspired to discredit (plaintiff) and destroy its reputation in the community for the purpose of stopping any development by (plaintiff)," that they "did the acts described in this Sixth Cause of Action in furtherance of the aforesaid conspiracy," and that they "were motivated by malice and ill will toward (plaintiff)." As with the fifth cause, the sufficiency of the sixth depends on whether it alleges actionable wrongdoing.

It purports to do so only by incorporating paragraphs of the fourth cause. The sole misconduct that those paragraphs allege is the making of a "slanderous statement" by "defendants does 301 through 400." There is no allegation of wrongful conduct by any of the defendant-conspirators Harris, Ruden, Okun, and Does 501 through 600. Accordingly, the sixth cause fails to state a claim against any defendant.

Though that defect regarding parties requires sustaining the demurrer to the sixth cause, it might not preclude an amendment identifying some individual as both one of the Does 501 through 600 and one of the Does 301 through 400. (See Marasco v. Wadsworth (1978) 21 Cal.3d 82, 145 Cal.Rptr. 843, 578 P.2d 90; Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 136 Cal.Rptr. 269, 559 P.2d 624; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681.) Thus we consider whether the fourth cause sufficiently alleges actionable wrongdoing by Does 301 through 400.

The sole purportedly wrongful act charged appears in this allegation: "(Plaintiff) is informed and believes and, based on such information and belief, alleges that within one year last past, defendants Does 301 through 400, inclusive, made the following oral statement (the 'Slanderous Statement'): that (plaintiff) had entered into a corrupt relationship with Councilman Stone, and Stone, pursuant to this arrangement, had improperly influenced the City Planning Commission and staff and the City Council in order to favor (plaintiff) in zoning and land trades with the City and had unlawfully used his influence as a City Councilman for the private gain of (plaintiff). Defendants Does 301 through 400, inclusive, made the Slanderous Statement to members of the Beverly Hills community."

By way of innuendo it is alleged that the "Slanderous Statement" was intended and understood to mean that plaintiff "had committed the crimes of bribery and corruption." Falsity and malice are alleged in the same manner as in the second and third causes of action, except that there is no allegation of omission of material facts.

Defendants contend the allegation of slander is fatally inexact as to time and place of utterance and persons addressed. Yet the pleading does seem certain enough in those respects. Less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718; Schessler v. Keck (1954) 125 Cal.App.2d 827, 835, 271 P.2d 588 (upholding pleading on information and belief).) Nor is the allegation defective for failure to state the exact words of the alleged slander. Notwithstanding an early dictum cited here (Haub v. Friermuth (1905) 1 Cal.App. 556, 557, 82 P. 571), we conclude that slander can be charged by alleging the substance of the defamatory statement. (See Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 235, 11 Cal.Rptr. 97, 359 P.2d 465; Schessler v. Keck, supra, 125 Cal.App.2d 827, 830, 271 P.2d 588 (sustaining allegation of statement that "plaintiff was being treated for syphilis ... and ... should not be employed as a cook"); cf. des Granges v. Crall (1915) 27 Cal.App. 313, 315, 149 P. 777 (requiring exact pleading of words of libel).)

Might a trier of fact reasonably find that the alleged statement conveyed a slanderous meaning? [FN4] More particularly, might a "member of the Beverly Hills community" properly be found to understand the statement as charging that plaintiff "had committed the crimes of bribery and corruption"?

[FN4] Civil Code section 46 defines slander as follows: "Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which: 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime; 2. Imputes in him the present existence of an infectious, contagious, or loathsome disease; 3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits; 4. Imputes to him impotence or a want of chastity; or 5. Which, by natural consequence, causes actual damage."
The complaint makes clear that the statement was part of the debate over whether the city should permit plaintiff's condominium project. [FN5] Thus it was in a "setting in which the audience may anticipate efforts ... to persuade ... by use of epithets, fiery rhetoric or hyperbole" (Gregory, supra, 17 Cal.3d at 601, 131 Cal.Rptr. 873, 552 P.2d 1169). The vague charge that plaintiff "entered into a corrupt relationship with Councilman Stone" was not a factual assertion of crime but rather an expression of opinion. In context, "corrupt" implied moral criticism of objectives and methods, not the occurrence of bribery. Equally deprecatory words often have been ruled nondefamatory in parallel circumstances. (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, 22 Cal.3d 672, 678, 681, 150 Cal.Rptr. 258, 586 P.2d 572 ("chicanery and machinations"); Gregory, supra, 17 Cal.3d 596, 599, 603, 131 Cal.Rptr. 873, 552 P.2d 1169 (labor union officer charged with "seek(ing) personal gain and political prestige rather than (serving) the best interests of the members"); Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d 49, 158 Cal.Rptr. 519 ("chicanery"); Sierra Breeze v. Superior Court, supra, 86 Cal.App.3d 102, 149 Cal.Rptr. 914 (charge that county supervisor "vote(d) to squander property tax funds"); Scott v. McDonnell Douglas Corp., supra, 37 Cal.App.3d 277, 284, 288-291, 112 Cal.Rptr. 609 (city manager said to be not "dedicated to efficiently and honestly administer the affairs of the City").)
[FN5] The allegation that the statement was made "within one year last past" encompasses utterances after the referendum of March 9, 1979. However, that referendum dealt only with the zoning ordinance, not the land-exchange agreement; further, the alleged purpose of both the conspiracy to slander and the slander itself was to "stop any development by" plaintiff.
The charge that "pursuant to this arrangement" Councilman Stone "improperly" and "unlawfully" influenced the city in favor of plaintiff is merely rhetorical hyperbole. "An allegedly defamatory statement may constitute a fact in one context but an opinion in another, depending upon the nature and content of the communication taken as a whole." (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, 22 Cal.3d 672, 680, 150 Cal.Rptr. 258, 586 P.2d 572.) In Good Government a statement that city council members "extorted by blackmail $100,000 from (a developer)" was held subject to defamatory interpretation because it described a specific incident and failed to explain that the $100,000 was paid to the city. (Id., at pp. 681, 683, 150 Cal.Rptr. 258, 586 P.2d 572.) Here the use of "improperly" and "unlawfully," unadorned by reference to or insinuation of undisclosed knowledge of a particular criminal act, could not be understood to be more than a constitutionally protected expression of severe disapproval of noncriminal conduct.

LEAVE TO AMEND?

On the sustaining of demurrers to the second, third, fifth, and sixth causes of action should plaintiff be given leave to amend? Sufficiency of the second, third, and fifth causes turns on the presence of libel in two letters and a ballot argument. Each of those documents is nonlibelous when read in light of circumstances alleged here that would have to be considered even if omitted from an amended pleading (Reichert v. General Ins. Co. (1968) 68, Cal.2d 822, 836-837, 69 Cal.Rptr. 321, 442 P.2d 97). Accordingly, leave to amend those three causes should be denied because "there are no circumstances under which an amendment would serve any useful purpose" (Routh v. Quinn (1942) 20 Cal.2d 488, 493-494, 127 P.2d 1) and "speedy resolution of cases involving free speech is desirable" to avoid "a chilling effect upon the exercise of First Amendment rights" (Good Government, supra, 22 Cal.3d at p. 685, 150 Cal.Rptr. 258, 586 P.2d 572).

The sixth cause, on the other hand, turns on the allegedly slanderous nature of an oral statement that is set forth only in substance. Though the statement as presently pleaded could not be found defamatory, the form of the sixth cause does not preclude the possibility of an amendment that would allege slander in furtherance of the conspiracy charged against Okun, Harris, and Ruden. Leave to amend thus should be granted. (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245, 74 Cal.Rptr. 398, 449 P.2d 462 ("If there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend"); MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 542, 343 P.2d 36; Lemoge Electric v. County of San Mateo (1956) 46 Cal.2d 659, 664, 297 P.2d 638 ("great liberality should be exercised in permitting a plaintiff to amend").)

Let a peremptory writ issue, directing respondent court (1) to vacate its order overruling petitioners' demurrers to the second, third, fifth, and sixth causes of action, and (2) to issue an order sustaining the demurrers to the second, third, and fifth causes of action without leave to amend and sustaining the demurrers to the sixth cause of action with leave to amend. Petitioners shall recover costs against real party in interest.

TOBRINER, RICHARDSON and COLOGNE, [FN*] JJ., concur.

[FN*] Assigned by the Chairperson of the Judicial Council.

MOSK, Justice, concurring and dissenting.

I concur in the opinion and in the judgment as to the second, third and fifth causes of action, but I dissent from the order permitting leave to amend the sixth cause of action. The further prolongation of this litigation would be as misguided as its origin. (Cal.Const., Art. I, s 2; Wilson v. Superior Court (1975) 13 Cal.3d 652, 119 Cal.Rptr. 468, 532 P.2d 116.)

The majority conclude that the plaintiffs might possibly identify one of the several hundred Does sued as defendants and thus establish a conspiracy to slander. I suggest that since plaintiffs have not proposed to further amend their complaint to name any additional defendants at any time after the lawsuit was filed in 1979, an ineluctable conclusion follows that they are unable to do so at this late date.

Defendants filed a general demurrer and it is that general demurrer on which the court is ruling. In many circumstances sustaining a special demurrer might justify a belated opportunity to amend, but we have found, as I read the majority opinion, that no cause of action has been stated. Naming an identifiable live human being in place of a fictitious Doe, even if it can be done, will add nothing to the substance of the complaint.

As I stated recently in my concurring and dissenting opinion in Deas v. Knapp (1981) 29 Cal.3d 69, 80, 171 Cal.Rptr. 823, 623 P.2d 735, there comes a time when the finality of litigation is almost as important as the decision therein. In the preservation of the free exercise of speech, writing and the political function, the early termination of this lawsuit is highly desirable. We should discourage attempts to recover through the judicial process what has been lost in the political process.

BIRD, C. J., and GERALD BROWN, [FN**] J., concur.

[FN**] Assigned by the Chairman of the Judicial Council.

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