To be sure, the Wilson court acknowledged that the decisions recognize prior restraints may be imposed under some extraordinary circumstances. Thus "an injunction restraining speech may issue in some circumstances to protect private rights or to prevent deceptive commercial practices." (13 Cal.3d at p. 662, citations omitted.) But the underlying dispute between plaintiff and Shell over governmental approval of polybutylene pipe for domestic purposes does not involve private rights between two warring litigants; rather, it is concerned with a public safety and health issue which potentially touches all of the residents of California. Nor does this case involve deceptive commercial practices. Plaintiff is not selling any product, much less a competing pipe or resin. And even if the Council could be said to be a competitor of Shell, itself a doubtful proposition, the Council was not sued and its acts of disseminating the disputed report remain unchallenged.
It cannot be doubted that the public debate over the safety of plastic pipe, then being aired before a branch of state government, constituted a matter of great public interest and concern. There was an ongoing political controversy in California over the unrestricted use of plastic pipe. The
Commission was officially considering amendments to state law to permit the use of these pipes and had held a number of public hearings on the question. The Council and plaintiff as its attorney had been active participants at those hearings. Indeed, it was for the purpose of advocating his client's position before the Commission that plaintiff engaged CAL to analyze two pieces of polybutylene pipe. Those tests, as we have recounted, revealed the presence 50 to 500 ppm of the carcinogenic chemical DEHP. Plaintiff presented CAL's findings and report to the Commission and it then decided that polybutylene pipe should be reviewed under the California Environmental Quality Act. In response to this advocacy before the Commission, Shell sought to deflect this regulatory and scientific dispute from the public arena and recast it into a lawsuit in the federal court. Indeed, the very report Shell sought to suppress by injunctive means in its lawsuit was already part of the public record of the Commission and hence was available for inspection and duplication by any interested citizen. Shell's lawsuit was fatally defective because, under the First Amendment, one participant cannot silence the attorney of an opponent in a political controversy by invoking the equitable powers of the federal court. Indeed, Shell's own expert witness, Professor William Cohen of Stanford University, conceded that there is no case that sanctioned the issuance of an injunction banning the discussion of matters of public concern over health and safety. This is no doubt because in a political controversy over issues of public interest, as Justice Holmes noted, "the ultimate good desired is better reached by free trade in ideas, -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, . . . That at any rate is the theory of our Constitution...." (Abrams v. United States (1919) 250 U.S. 616, 630 [63 L.Ed. 1173, 1180, 40 S.Ct. 17] (dis. opn. of Holmes, J.).) [FN10]
C. Probable Cause to Bring Action for Declaratory Relief
In its federal action Shell also sought a declaratory judgment that
"polybutylene resin, and pipe manufactured therefrom, does not contain
concentrations of DEHP at levels sufficient to represent a danger to human
health, or at 50-500 parts per million, or at all." Plaintiff argues that Shell was inappropriately seeking to establish a scientific truth by the use of a declaratory judgment. We agree. Under the federal Declaratory Judgment Act, with exceptions not relevant here, the federal court, in a case of actual controversy within its jurisdiction, "may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought." (28 U.S.C. @ 2201.) But Shell did not seek a declaration of legal rights; it sought instead a scientific declaration concerning its product. By this mechanism it endeavored to circumvent the very thing that the Commission, in its EIR review, sought to determine, namely whether the pipe or its connectors contained elements which rendered its use unsafe for domestic water use. Under the federal statute, it is settled that "declaratory judgment procedure will not be used to pre-empt and prejudge issues that are committed for initial decision to an administrative body." (Dawson v.
Department of Transp. (W.D.Okla. 1979) 480 F.Supp. 351, 352, citing, inter alia, Public Serv. Comm'n. v. Wycoff Co. (1952) 344 U.S. 237, 246 [97 L.Ed. 291, 267, 73 S.Ct. 236].) In short, Shell did not seek a declaration of its "rights and other legal relations."
It follows from this that the cause of action for declaratory relief was also untenable and hence lacked probable cause. Given the constitutional constraints necessarily implicated by this political dispute, no reasonable attorney would have thought this action was tenable. Since the trial court
properly found that Shell lacked probable cause to bring its lawsuit against
plaintiff as a matter of law, we conclude that the instruction to the jury
informing them of that determination, even if more detailed than necessary,
created no reversible error.[FN11]
We do not mean to suggest that injunctive relief is never available in cases
of trade libel. Clearly, it is in the ordinary case involving private disputes. (See, e.g., System Operations v. Scientific Games Dev. Corp. (3d Cir. 1977) 555 F.2d 1131; Martin v. Reynolds Metals Co., supra, 224 F.Supp. 978.) But statements made in the context of a public debate before a governmental agency on a matter of public health simply cannot be enjoined no matter what tortious label is pasted upon them. As the Massachusetts high court noted in a comparable context more than 30 years ago, in a case seeking to enjoin the further publication of an allegedly false report unfavorable to plaintiff's special cancer treatment drug, "the great public interest ... in the untrammelled discussion of cancer cures" constitutionally prohibited the issuance of an injunction. (Krebiozen Research Foundation v. Beacon Press, Inc. (1956) 334 Mass. 86, 98 [134 N.E.2d 1, 9].) Since an injunction against further dissemination of the report would constitute a prior restraint of publication, its issuance was barred by the First Amendment under the Near decision. (Id. at p. 96 [134 N.E.2d at p. 6].) The same conclusion is compelled in this case for the same reasons. We conclude therefore that Shell had no probable cause to seek injunctive relief and the trial court correctly found that "[t]he law of the State of California and of the United States does not permit any court to issue an injunction to prevent the dissemination of such a report under the circumstances shown by the evidence in this case."
In its next attack on the judgment, Shell argues that the trial court committed reversible error in admitting expert legal testimony on the question of probable cause. At trial plaintiff called three attorneys as expert witnesses.
Attorney Jermone B. Falk, Jr., who had represented plaintiff in the federal court action, testified among other things that an injunction against speech is almost never permitted in the United States, that plaintiff's actions in the matter were privileged, and that in his opinion there was no legal merit to Shell's action and he considered it frivolous. Two things struck Mr. Falk as extraordinary about the federal complaint: "The first is that the injunction sought was being sought against somebody's lawyer. I don't have any problem with suing lawyers, but to muzzle one I thought was unusual. [para.] And the second thing about it was that it was an injunction against someone speaking, and speaking in a political context." In Mr. Falk's view, political speech is at the heart of the First Amendment and its California counterpart. "That's the way we influence our institutions. And here was a proceeding that was already going on in the government before an administrative agency, [and] this was, this report was being used to persuade that agency of a position. [para.] And to enjoin it, to forbid its use either before that agency or in a related context really struck me [as being] at the heart [of] what the First Amendment is all about." Thus, "once something is a matter of public record, then people can talk about it, have a right to talk about it, comment on it, criticize it, support it, whatever." In his view, it was also unusual to file a lawsuit for an injunction and then not seek a preliminary injunction.
After being retained by plaintiff, Mr. Falk sent a letter to Shell's counsel demanding an unconditional dismissal with prejudice and included citations of authority explaining why he thought dismissal was required by the law. In response, he received an inconclusive letter from opposing counsel who explained that he had "forwarded my letter to Shell Oil, but that it was a large organization and that it would take some time for them to do anything about it." After waiting some two months without a reply, Mr. Falk filed a motion to dismiss. In support of that motion, Mr. Falk filed a memorandum of points and authorities in which he made the same constitutional arguments as he did in his testimony. Shell responded by filing an opposition to the dismissal motion. Then three days before the scheduled hearing on the motion, Shell voluntarily dismissed the action against plaintiff.
Attorney William A. Wilson, who represented CAL in the federal action, testified that he believed the action "had absolutely no merit." "They were trying to enjoin something that was a matter of public record, trying to enjoin dissemination of information in an issue that was being hotly disputed in the public forum." His discussion with Shell's counsel led him to believe that what Shell really wanted "was a statement, they didn't want an injunction, they didn't want a declaratory relief, they didn't want damages. [para.] They wanted some kind of a statement. And at that point we started talking about what kind of a statement and then began working on the language of the statement,..." In short, Shell was "interested in some fashion of getting a statement to neutralize the report." Although Mr. Wilson felt that Shell was applying "economic coercion" against his client, CAL and Shell eventually signed a joint settlement statement and the action was then dismissed with prejudice as to CAL.
Finally Attorney Irving H. Perluss, a retired judge whose only connection to the case was as plaintiff's expert, was allowed to testify at length about his views of the law and the merits of the case. He opined that an injunction involving speech can be issued in only the most dire necessity for national security and that product disparagement cannot be enjoined. Since Shell's federal court action did not concern national security, in Perluss's opinion there was no way the complaint could have been amended to state a cause of action. He also offered the opinion that plaintiff's status report was absolutely privileged. When reminded that injunctive relief is available against acts of unfair competition, he insisted that unfair competition laws pertain only to competitors and that there is no way plaintiff could be considered a competitor. He offered the opinion that it was "just outrageous" that plaintiff was sued, and that no reasonable person could say that there was probable cause to sue him.
Shell contends the expert testimony is not admissible on the question of probable cause. Shell is correct. Probable cause is a legal question for the court and it is thoroughly established that expert testimony is improper and incompetent on the issue of probable cause. (Williams v. Coombs, supra, 179 Cal.App.3d at p. 638.) In Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at pages 874-875, the California Supreme Court recently addressed and adhered to this rule in a malicious prosecution action. "The 'malice' element of the malicious prosecution tort relates to the subjective intent or purpose with which the defendant acted in initiating the prior action, and past cases establish that the defendant's motivation is a question of fact to be determined by the jury. [para.] By contrast, the existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury." As the high court went on to explain, "[a]n important policy consideration underlies the common law rule allocating to the court the task of determining whether the prior action was brought with probable cause. The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors, and courts have recognized that there is a significant danger that jurors may not sufficiently appreciate the distinction between a merely unsuccessful and a legally untenable claim. To avoid improperly deterring individuals from resorting to the courts for the resolution of disputes, the common law affords litigants the assurance that tort liability will not be imposed for filing a lawsuit unless a court subsequently determines that the institution of the action was without probable cause." (Id. at p. 875, citations omitted and italics in original.)
In response to Shell's claim of error in the admission of expert testimony plaintiff inferentially concedes that expert testimony is not admissible on the question of probable cause. Instead, he argues that the testimony of Messrs. Falk and Wilson, as counsel for the parties defendant in the federal lawsuit, was offered for the limited purpose of establishing a favorable termination and the relationship of the CAL settlement to the determination. We agree that the testimony of these attorneys was admissible on the question of favorable termination. "It is apparent 'favorable' termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits -- reflecting on neither innocence of nor responsibility for the alleged misconduct -- the termination is not favorable in the sense it would support a subsequent action for malicious prosecution." (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751 [159 Cal.Rptr. 693, 602 P.2d 393].) It has been correctly noted that a voluntary dismissal may have been prompted by factors other than the merits of the lawsuit. "Although voluntary dismissal of the underlying action is usually considered a favorable termination of the action for purposes of a malicious prosecution action, the failure to prosecute may occasionally be attributable to other than a complainant's implicit concession as to the merits of the action. Where the evidence conflicts as to the real motive for the voluntary dismissal of the underlying action, the question of favorable termination is to be resolved by the jury." (6 Cal.Jur.3d, Assault and Other Wilful Torts, @ 345, pp. 878-879, fn. omitted; see Weaver v. Superior Court (1979) 95 Cal.App.3d 166, 184-185 [156 Cal.Rptr. 745]; Minasian v. Sapse (1978) 80 Cal.App.3d 823, 826-828 [145 Cal.Rptr. 829]; see also BAJI No. 7.32.5.) Such was the case here. Shell denied that its voluntary dismissal was prompted by its assessment of the merits of the federal action and consequently its motive became a factual issue to be resolved by the jury. Thus the jury was instructed that favorable termination meant "that the termination was of such a nature as to indicate the freedom from liability of [plaintiff] in the prior federal civil proceeding. [para.] It is for you to decide, under all the circumstances of the evidence, whether dismissal of the prior federal suit by [Shell] against [plaintiff], reflected a lack of merit of said prior federal suit." Consequently, plaintiff was entitled to establish the circumstances surrounding the dismissal. Those circumstances included opposing counsel's assessment of the constitutional impediment to the federal lawsuit and his motion for dismissal based upon that assessment. The inference to be drawn from this testimony is that Shell's dismissal reflected a realization that its suit lacked merit and was untenable.
Shell asserts the testimony of Mr. Perluss poses a different problem. Shell says Mr. Perluss had no connection with the federal case and was not a percipient witness to any of the events that led to the dismissal of that action. He did, of course, read the pleadings and the motions of the parties in the federal suit. Nevertheless, the gist of his testimony related not to the favorable termination question but rather to the propriety of filing the lawsuit in the first place. Consequently, it is fair to say that he was called as an expert to testify on the law.
Plaintiff argues that Mr. Perluss's testimony was admissible on the reprehensibility of Shell's conduct in determining punitive damages. In his brief plaintiff argues that "[a] determination of lack of probable cause by the court does not tell a jury that the conduct is outrageous; it merely tells them that it is not permitted under the law. There is a world of difference between conduct that falls below an objective standard and conduct that is so reprehensible to be beyond the pale of what any rational corporation with a huge legal staff could even imagine to be acceptable since the establishment of our Republic upon the North American continent 200 years ago." We need not resolve this contention because Shell waived any error in the admission of Mr. Perluss's testimony by failing to object to it. The Evidence Code provides that a verdict or judgment shall not be set aside by reason of the erroneous admission of evidence unless there "appears of record an objection to or motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; . . ." (Evid. Code, @ 353, subd. (a); see also Evid. Code, @ 803.) In light of this section, questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection. (People v. Rogers (1978) 21 Cal.3d 542, 547-548 [146 Cal.Rptr. 732, 579 P.2d 1048].) Thus, Shell waived any claim of error in the admission of expert testimony by Mr. Perluss by failing to object to his testimony. (Gaehwiler v. Occupational Safety & Health Appeals Bd. (1983) 141 Cal.App.3d 1041, 1046 [191 Cal.Rptr. 336].)
Shell counters that it repeatedly objected to Mr. Falk's legal opinion testimony and that objection was persistently overruled. It argues that once a party's objections to a line of questioning have been asserted and overruled, it not necessary to continue to interrupt the taking of testimony in order to preserve appellate rights. (See 3 Witkin, Cal. Evidence (3d ed. 1986) Introduction of Evidence at Trial, @ 2022, p. 1984.) But that rule has no application here. The testimony of Mr. Falk was offered for the limited purpose of establishing a favorable termination of the federal lawsuit and the jury was accordingly instructed on evidence admitted for a limited purpose. But the testimony of Mr. Perluss was not offered for a limited purpose or on the question of favorable termination. As Shell now characterizes it, that testimony was offered on the question of probable cause. The sweep of the continuing objection rule does not encompass the testimony of different witnesses offered for different purposes. (People v. Epps (1981) 122 Cal.App.3d 691, 704 [176 Cal.Rptr. 332].) By failing to object, Shell waived any error.