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.
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:
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.
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.
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"?
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.
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.