Albertini v. Schaefer

• Decision Date: 18 October 1979
• Citation: 159 Cal.Rptr. 98,97 Cal.App.3d 822
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene J. ALBERTINI, an Individual; Chronometrics, Inc., a California Corporation, Plaintiffs and Appellants, v. Robert J. SCHAEFER, an Individual; Sysgen, Inc., a California Corporation, Defendants and Respondents. Civ. 55493.

Page 98

159 Cal.Rptr. 98

97 Cal.App.3d 822

Eugene J. ALBERTINI, an Individual; Chronometrics, Inc., a California Corporation, Plaintiffs and Appellants, v. Robert J. SCHAEFER, an Individual; Sysgen, Inc., a California Corporation, Defendants and Respondents.

Civ. 55493.

Court of Appeal, Second District, Division 4, California.

Oct. 18, 1979.

As Modified Nov. 8, 1979.

Albertini & Gill and Eugene J. Albertini, Los Angeles, for plaintiffs and appellants.

McKenna & Fitting and Aaron M. Peck, I. Bruce Speiser and Edmond M. Connor, Los Angeles, for defendants and respondents.

JEFFERSON, Associate Justice.

Plaintiffs Eugene J. Albertini and Chronometrics, Inc., a California corporation, filed a complaint seeking damages for slander, trade libel and interference with business relationship. Named as defendants were Robert J. Schaefer and Sysgen, Inc., a California corporation. Defendants sought and obtained a summary judgment in their favor. Plaintiffs have appealed from this judgment.

Plaintiff Albertini is a lawyer and president of Chronometrics, a corporation providing computer programming for lawyers. Defendant Robert J. Schaefer (apparently a former employee of Chronometrics) is the president of Sysgen, Inc., also a corporation involved in applying computerization to the practice of law. Another principal in this matter, although not a party to the litigation is James Q. DeWitt, president of Lex Systems, Inc., a corporation located in San Francisco and concerned with the same subject, namely, computer services for lawyers.

I The Complaint

The complaint was framed in six causes of action; all were derived from the same basic operational facts alleged in each cause of action. Plaintiffs alleged that, on or about December 1, 1976, defendant Schaefer stated in the presence of James Q. DeWitt, Richard Stewart and others that plaintiff Albertini was a "crook" and a "thief" and declared that plaintiff Chronometrics, Inc. was a "scam" corporation, thereby accusing plaintiff corporation of being and committing a fraud upon its creditors and the public in general. ¹ It is further alleged that Schaefer made other derogatory remarks, unspecified.

In addition to four causes of action in slander, the complaint alleged the commission by defendants of trade libel, I. e., disparagement of such Chronometrics products as electronic time recorders and computer programs and, also, what appears to be the tort of intentional interference with prospective economic advantage, I. e., disruption of a developing business relationship between plaintiffs and DeWitt's Lex Systems, Inc. Compensatory damages of $100,000 and punitive damages of $1,000,000 were requested for each plaintiff.

Defendants' motion for summary judgment was predicated on the following grounds: (1) that the allegations of plaintiffs' complaint where sham and frivolous; and (2) that there existed no triable issue of fact on any of the six causes of action.

II The Content of the Declarations Submitted in Support of and in Opposition to the Summary-Judgment Motion

The motion for summary judgment was supported by three declarations, those of defendant Schaefer and of DeWitt and Stewart, denying that defendant Schaefer with whom DeWitt and Stewart had met on December 1, 1976, had, in their presence, called plaintiff Albertini a "crook" or a "thief," or called Chronometrics a "scam" corporation. DeWitt and Stewart also denied that any equivalent or similar language had been employed by Schaefer or that the declarants had heard any statements they understood to be derogatory to plaintiffs. In addition, the DeWitt declaration, dated March 30, 1978, stated that DeWitt's relationship to plaintiffs was based on mutual interest in the computer field and only that; the parties were not negotiating any business deals.

In opposition to the motion for summary judgment, plaintiffs filed a declaration, dated April 17, 1978, and executed by the same James Q. DeWitt, who executed the March 30, 1978 declaration in support of defendants' summary judgment motion. In it DeWitt explained that he had executed the first declaration pursuant to his understanding with defendants' attorneys that he was only being asked to deny Schaefer's use in his presence of the specific words "crook," "thief," or "scam" the specific words set forth in the complaint; that he did not recall such use; that on this narrow ground he had executed the first declaration. However, DeWitt went on to state, in his April 17 declaration, that "at the time Mr. Stewart and myself left the meeting with Mr. Schaefer, we had the impression from that meeting that Mr. Albertini was a dishonest or unethical lawyer and that Chronometrics, Inc. was merely a 'front' for Mr. Albertini or his alter ego."

In addition, DeWitt's April 17 declaration made reference to a paragraph 10 of his March 30 declaration. DeWitt declared: "In reading the declaration (the March 30 declaration), paragraph 10 on page 3 was troublesome to me. It appeared to directly contradict what I told Mr. Connor (one of defendants' attorneys) earlier that when we had left the meeting with Mr. Schaefer we were under the distinct impression As created by Mr. Schaefer, that Mr. Albertini was dishonest and unethical and that the corporation called Chronometrics, Inc. was a front or alter ego for Mr. Albertini." (Emphasis added.) The paragraph 10 of the DeWitt March 30 declaration referred to in DeWitt's April 17 declaration, stated: "At no time during the meeting did Mr. Schaefer make any statements regarding Mr. Albertini, Chronometrics, or any other person or entity, or the business goods or products thereof, that I understood to have any defamatory or disparaging meaning."

The DeWitt declaration of April 17 was the only declaration filed by plaintiffs in opposition to defendants' motion for summary judgment.

III The Irrelevancy of Declarations Submitted In Support of and In Opposition to the New Trial Motion

As indicated, the trial court awarded summary judgment to defendants. Our record includes a minute order which purports to recite, in terms not too clearly defined, the trial court's reasoning in reaching its determination. Whatever that reasoning was, our task is to determine whether the ruling was correct. That determination must be made on the state of the record as it existed at the time the trial court decided the matter and granted a summary judgment in defendants' favor.

We stress this point, because our record includes several additional declarations made in support of a motion for new trial made by plaintiffs. In one such declaration, plaintiff Albertini identifies DeWitt as the source of his information concerning the alleged slander, conveyed by DeWitt to Albertini through one Deno Benedetti, an employee of Chronometrics; no declaration of Benedetti had been filed. Another declaration, the Third executed by DeWitt, purported to explain the circumstances of his executing the second declaration, complaining that the statements expressed therein were "phrased differently" than those he had actually made (to plaintiffs' lawyers) and that the only impression he had carried from the December 1976 meeting was that "(Schaefer) did not especially like the (plaintiff)." The parties in their brief have made reference to these additional declarations to support their respective positions. But since the only matter before us is an appeal from the summary judgment, the declarations submitted on plaintiffs' motion for new trial have no relevance and cannot be considered by us in determining the validity of the trial court's action in granting summary judgment to defendants.

The trial court treated plaintiffs' motion for new trial as a proceeding to set aside the judgment pursuant to Code of Civil Procedure section 473, and denied the motion.

IV Words Constituting Slander Per Se

Slander is described in Civil Code section 46, in pertinent part for our purposes, as "a false and unprivileged publication, orally uttered, . . . which: . . . (P) Tends directly to injure (a person) 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; . . . or (P) Which, by natural consequence, causes actual damage."

Words which fall within the purview of Civil Code section 46 are deemed to constitute slander per se (Douglas v. Janis (1974) 43 Cal.App.3d 931, 118 Cal.Rptr. 280; Contento v. Mitchell (1972) 28 Cal.App.3d 356, 104 Cal.Rptr. 591) with the effect that the utterance of such words is actionable without proof of special damage. (Correia v. Santos (1961) 191 Cal.App.2d 844, 13 Cal.Rptr. 132.)

Calling someone a "thief" was early held to be defamatory per se (see e. g., Rhodes v. Naglee (1885) 66 Cal. 677, 6 P. 863; Smullen v. Phillips (1891) 92 Cal. 408, 28 P. 442; Harris v. Zanone (1892) 93 Cal. 59, 28 P. 845). A fair construction of Civil Code section 46 requires a holding that calling an attorney a "crook" is equally actionable as slander per se without proof of special damage. Imputing dishonesty or lack of ethics to an attorney is also actionable under Civil Code section 46 because of the probability of damage to professional reputation. (Katz v. Rosen (1975) 48 Cal.App.3d 1032, 121 Cal.Rptr. 853.) (See, also, Hanley v. Lund (a doctor) (1963) 218 Cal.App.2d 633, 32 Cal.Rptr. 733.)

Corporate reputation is also protected by Civil Code section 46; corporations may sue or be sued for defamation. (Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 30 Cal.Rptr. 350.)

V The Effect in a Slander Case of Some Variance Between Words Allegedly Spoken and Those Proved To Have Been Spoken

In the case at bench the declarations supporting the motion for summary judgment tended to indicate that de...