Beroiz v. Wahl

• Decision Date: 30 October 2000
• Docket Number: No. B138546.,B138546.
• Citation: 84 Cal.App.4th 485,100 Cal.Rptr.2d 905
• Court: California Court of Appeals Court of Appeals
• Parties: Denny J. BEROIZ, et al., Plaintiffs and Appellants, v. Tony WAHL, et al., Defendants and Respondents.

100 Cal.Rptr.2d 905

84 Cal.App.4th 485

Denny J. BEROIZ, et al., Plaintiffs and Appellants, v. Tony WAHL, et al., Defendants and Respondents.

No. B138546.

Court of Appeal, Second District, Division 4.

October 30, 2000.

As Modified on Denial of Rehearing November 20, 2000.

Review Denied January 24, 2001.^*

Daar & Newman and Samuel T. Rees, Los Angeles, for Plaintiffs and Appellants.

Alder & Ring and Bart I. Ring, for Defendants and Respondents Tony Wahl and Therese Marian.

Law Offices of Craig D. Weinstein and Craig D. Weinstein, Manhattan Beach, for Defendant and Respondent Elena Gladys Alamo Janine.

CURRY, J.

In a defamation action by appellants Denny J. Beroiz, Robert Delmer, and Samuel T. Rees, the trial court granted motions for summary judgment by defendants and respondents Elena Gladys Alamo Janine, Therese Marian, and Tony Wahl. We affirm.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

On July 17, 1997, appellants filed their complaint against respondents, as well as Charlotte Boddeker, George Boddeker, Barbara Smith, Eugene Smith, and Shirley Tate. The complaint alleges the following facts: Appellants, and the defendants, including respondents, were residents of a condominium complex in Mexico named "Condominio Las Gaviotas." Appellants were members of the homeowners association, and from March 1991 to March 1996, they served for periods on a vigilance committee that oversees the complex's professional administrator. During this period, the defendants, including respondents, violated the homeowners association's rules, requiring action by appellants as members of the vigilance committee. In response, defendants entered into a conspiracy to defame appellants. Respondents made defamatory criminal accusations against appellants, the most recent of which was filed in 1997. Furthermore, the defendants, including respondents, encouraged a Mexican national to file a false and defamatory claim against the condominium complex, and in 1997, they published defamatory letters signed by the Boddekers, the Smiths, and Tate, to members of the homeowners association.

Appellants settled their claims against all the defendants except respondents. On or about September 10, 1999, respondents filed motions for summary judgment or adjudication, contending, inter alia, that they had not conspired to defame appellants, and that their conduct was privileged under Civil Code section 47.

On summary judgment, Alamo ¹ submitted evidence that appellants had abandoned their allegations of defamatory conduct against her, except for the allegation that she had filed defamatory criminal accusations, assisted by Wahl and Marian. Regarding this allegation, Alamo contended that her conduct was nondefamatory and privileged.

Alamo submitted evidence supporting the following version of the pertinent events: Delmer, Beroiz, and Rees were not on the vigilance committee after March 1996. Subsequently, the complex's administrator denied Alamo gas and gardening services, and she was denied entry to the complex because the administrator, upon the vigilance committee's instructions, refused to issue a sticker to her identifying her as a resident. Alamo consulted with a Mexican attorney, who advised her that she had a sufficient basis for alleging the crime of dispossession under Mexican law, and she filed a complaint with the local district attorney's office on August 7, 1996. Alamo did not discuss the making of this complaint with Wahl and Marian, and she did not know the members of the vigilance committee when she made it. The complaint itself states that the administrator, in conjunction with unnamed members of the complex's board of directors, had dispossessed her by denying services and access to her residence.

Alamo also joined in the motions filed by Wahl and Marian. These motions, which are substantially identical, denied that Wahl and Marian had engaged in any of the conduct alleged in appellants' complaint, with the exception of Alamo's complaint to the local district attorney's office. Regarding Alamo's complaint, Wahl and Marian contended that they had done nothing more than provide testimony upon the orders of the local district attorney, and that this conduct was privileged.

In support of these contentions, Wahl and Marian submitted evidence that they had no involvement with the letters signed by the Boddekers, the Smiths, and Tate, that they were wholly unaware of a false claim by a Mexican national against the complex, and that they had never filed any criminal accusations against appellants. Furthermore, they submitted evidence that Alamo did not ask them to testify, and that the local district attorney made the decision to have them testify.

In response, appellants conceded that their claims against respondents did not rest on the letters signed by the other defendants, and they otherwise focused their opposition on the allegations regarding Alamo's criminal accusations. They contended, inter alia, that the pertinent privileges under Civil Code section 47 do not shield conduct in Mexico. Alternatively, appellants argued that there was evidence that malice had motivated respondents' conduct, thus taking it outside the only applicable privilege.

Appellants submitted a declaration from Rees, an attorney, who stated that the condominium complex is located in an area of Mexico in which direct foreign ownership of real property is prohibited. As a result, American residents of the complex generally hold their property as beneficiaries of a master trust, which is the owner of record. None of the parties to appellants' action are Mexican nationals or directly own their property. Rees, along with the other appellants, had served on the vigilance committee for periods between March 1991 to March 1996. This committee's principal function is to oversee the complex's professional administrator, who is elected annually by the complex's members.

Rees's declaration states that while he served on the vigilance committee, it responded to misconduct by Alamo, Wahl, and Marian. Alamo is not a beneficiary of the trust. Because she has refused to pay overdue fees to the homeowners association and she has built a home without approval, the trustee refuses to transfer a beneficial interest to her. In 1994, the vigilance committee took legal action to secure demolition of her home. In the same year, the vigilance committee discharged then-administrator Roberto Mendoza, who is respondents' friend. Wahl and Marian, along with others, seized the homeowners association's office by force and held it for several months.

Rees's declaration further states that, as a result of these incidents, Alamo, Wahl, and Marian developed animosity towards appellants. In 1995, Alamo filed a dispossession complaint against appellants, but the charges were dismissed because she lacked supporting witnesses. After Alamo filed her complaint on August 7, 1996, Wahl and Marian voluntarily appeared and gave testimony. On August 14, 1996, the local district attorney determined that there was insufficient evidence to support any further investigation. Later, during discovery in the present action, Alamo admitted to Rees that she had "enlisted the aid of Marian and Wahl in supporting her criminal charges," and respondents were unable to produce written orders to Marian and Wahl to appear before the local district attorney.

Following a hearing, the trial court granted the motions, concluding that respondents' conduct was subject to the absolute privilege under Civil Code section 47. Judgment was filed on November 8, 1999.

DISCUSSION

Appellants contend that the trial court erred in granting summary judgment. We disagree.

A. Summary Judgment

Summary judgment is subject to de novo review. (Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110, 1116, 78 Cal.Rptr.2d 478.) Generally "`[r]eview of a summary judgment motion by an appellate court involves application of the same three-step process required of the trial court. [Citation.]'" (Bostrom v. County of San Bernardino (1995) 35 Cal. App.4th 1654, 1662, 42 Cal.Rptr.2d 669.) The three steps are (1) identifying the issues framed by the pleadings, (2) determining whether the moving party has made an adequate showing that negates the opponent's claim, and (3) determining whether the opposing party has raised a triable issue of fact. (Ibid.)

These steps reflect a series of burden shifts. A defendant moving for summary judgment has the burden of "negating] a necessary element of the plaintiffs case, and demonstrating] that under no hypothesis is there a material issue of fact that requires the process of a trial. [Citation.]" (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) To do that, the defendant may rely either on affirmative evidence or discovery responses of the plaintiff showing the absence of evidence necessary to establish at least one essential element of the plaintiffs case. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 589-590, 37 Cal.Rptr.2d 653.) Once the defendant carries this substantive burden, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exists as to the plaintiffs case. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562, 42 Cal.Rptr.2d 697.) Any doubts as to whether there are any triable issues of fact are to be resolved in favor of the party opposing summary judgment. (Ibid.)

B. Privilege

The key issues presented here concern the application of the absolute and qualified privileges in Civil Code section 47 to respondents' conduct in connection with Alamo's complaints of dispossession.²

Privilege is an affirmative defense to a claim of defamation. (5 Witkin, Summary of Cal. Law (9th ed. 1988 & 2000 Supp.) Torts, §§ 498, 519.) The so-called absolute privilege in subdivision (b) of section 47 provides broad protection to participants in litigation and other official...