Copp v. Paxton

• Decision Date: 22 April 1996
• Docket Number: No. A069856,A069856
• Citation: 45 Cal.App.4th 829,52 Cal.Rptr.2d 831
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3634, 96 Daily Journal D.A.R. 5869 Douglas F. COPP et al., Plaintiffs and Appellants, v. Kent F. PAXTON et al., Defendants and Respondents.

Page 831

52 Cal.Rptr.2d 831

45 Cal.App.4th 829, 96 Cal. Daily Op. Serv. 3634,

96 Daily Journal D.A.R. 5869

Douglas F. COPP et al., Plaintiffs and Appellants, v. Kent F. PAXTON et al., Defendants and Respondents.

No. A069856.

Court of Appeal, First District, Division 1, California.

April 22, 1996.

Rehearing Denied May 21, 1996.

Review Denied Aug. 14, 1996.

Law Offices--[45 Cal.App.4th 833] Charles O. Morgan, Jr. Charles O. Morgan, Jr., Andrew M. Rosner,

San Francisco, Paul Kleven, Berkeley, for plaintiffs and appellants

Thomas F. Casey, III, County Counsel, Portor Goltz, Deputy County Counsel, Redwood City, for defendants and respondents.

SWAGER, Associate Justice.

This appeal is from a summary judgment dismissing the plaintiffs' complaint for defamation and related tort causes of action. We affirm the judgment.

FACTS

On February 24, 1994, Douglas F. Copp, and two organizations under his control, The American Rescue Team, and Earthquake Preparedness and Rescue of California (hereafter referred to collectively as Copp), filed a complaint against a county officer, Kent F. Paxton (hereafter Paxton), the County of San Mateo, and San Mateo Operational Area Office of Emergency Services (hereafter referred to collectively as County), alleging causes of action for defamation, invasion of privacy by placing plaintiff in a false light, intentional interference with prospective economic advantage, and intentional interference with contract. Paxton and County subsequently moved for summary judgment, relying chiefly on the executive officer privilege of Civil Code section 47, subdivision (a). In a hearing on February 2, 1995, the court granted the motion for summary judgment upon a finding that all the communications "complained of here are absolutely privileged under Civil Code section 47, [subdivision] (a)." Copp appeals from the judgment of dismissal entered pursuant to the order.

Although the extent of his experience is disputed, the record indicates that Copp has a background in demolition work and has participated in an undetermined number of earthquake rescue operations since he first became involved in the rescue effort following the Mexico City earthquake of 1985. Under the auspices of a nonprofit organization, Earthquake Preparedness and Rescue of California, he holds himself out to the public as an expert in earthquake safety and a veteran in earthquake rescue operations. In 1988, he began work on organizing a worldwide conference on disaster mitigation to be held in Puerto Vallarta, Mexico, in September 1993. By the end of 1992, he claims to have "attracted a number of valuable sponsorships as well as the full participation of the governmental authorities in Mexico and the United States consul in Puerto Vallarta." The Hotel Marriott expressed an interest in hosting the conference and Copp was in contact with the operations manager, Dennis Whitelaw, in working out detailed arrangements.

Copp's experience in earthquake rescue convinced him that the conventional advice given to schoolchildren, i.e. to duck under their desks and wait out the earthquake, "was not only wrong, but dangerous, in that it would result in the victim's being crushed" under the desk. He advocates that children should lie down on the floor next to their desk so as to maximize the possibility of finding an open space in the rubble. In January 1992, he distributed a flyer criticizing the "duck and cover" approach, entitled "The Only Way Your Children Can Survive an Earthquake While at School," and prepared a script of a proposed video.

Since 1982, Paxton has served as the Area Coordinator for the Area Office of Emergency Services in San Mateo County. In this capacity, he is the head of a county department and is appointed by and serves at the will of the county manager. "[H]is official duties include emergency planning, training, public education and response services. His job also involves interacting with other government agencies to coordinate emergency efforts."

In the course of his duties in public education and interagency consultation, Paxton wrote three communications that are the basis of Copp's lawsuit. First, on January 23, 1992, he wrote a memorandum to his staff counseling them to "strenuously rebut" Copp's advice for the earthquake survival of schoolchildren. He states that the memorandum was "in direct response to the inquiry a staff member had received from a Parent-Teachers Association member at the El Granada School. She requested our position on Copp's theory after having received the flyer Secondly, on February 20, 1992, he wrote a four-page letter to Rich Eisner, executive director of the Bay Area Regional Earthquake Preparedness Project describing an encounter with Copp. As part of his official duties, Paxton attends meetings of public committees devoted to disaster preparedness. Earlier that day, he had attended a meeting of the Coastside Emergency Services Council, composed of a small group of local officials from coastal San Mateo County employed in the field of public safety, emergency services, hospital administration and school administration. At the request of a representative from the El Granada Elementary School, Copp had been invited to present his views. Paxton recounted that he interrupted Copp's presentation after about ten minutes to challenge his personal knowledge of the Mexico City earthquake and credentials in earthquake rescue operations. After the presentation, Paxton responded with a defense of the conventional advice of getting under a desk in an earthquake.

from Mr. Copp or one of his associates at or near the El Granada Elementary School."

Thirdly, on January 21, 1993, he wrote a letter to a private citizen, Warren Johnson, questioning Copp's credentials and referring him to three officials who could "debunk Copp's assertions." Johnson had contacted Paxton at the suggestion of Dan Eberle of the San Diego Office of Disaster Preparedness. Describing himself as president of the Naval League of Minnesota, Johnson called from a local telephone and asked Eberle if he knew a Douglas Copp. He explained that "he was calling because he had a friend in Puerto Vallarta who managed a hotel or something down there, and that this Douglas Copp was involved in a conference down there, and he had some concerns of some of the things that [were] being said." Eberle referred Johnson to Paxton because he had learned of Paxton's staff memorandum through a colleague on a state committee. Paxton recounted that he talked for about five minutes with Johnson and promised to send him further information. Apparently lacking an address, Paxton sent the letter to Johnson care of Eberle in San Diego.

In some manner, the two letters and staff memorandum reached the sponsors of the conference that Copp was promoting in Puerto Vallarta. The letter to Johnson mentions only the enclosure of photographs. When asked if he also enclosed the Eisner letter, Paxton professed not to remember: "Q. What is it that you sent to him? A. I sent him a letter and some pictures of school earthquake damage. And I'm not sure whether or not I sent him a copy of the summary of our meeting that I had written to Richard Eisner a year earlier, 11 months earlier. Q. Why is it you're not sure whether you sent that or not? A. I simply don't recall." Paxton did not offer, however, any other explanation as to how the staff memorandum and confidential letter to a colleague could have reached the conference sponsors. He testified that he received only one other inquiry related to the conference--from the conference coordinator, Elizabeth Estrada, who was working with Copp. He talked to her twice by telephone "in the February/March '93 time frame." In her second call, she said that his letter or letters to Johnson were being circulated among sponsors in Mexico. Paxton did not remember whether she referred to one or more letters.

According to Copp's declaration, the attitude of the conference sponsors abruptly changed around the end of January 1993. "From full support, the sponsors suddenly withdrew all support, without explanation. Finally, Dennis Whitelaw of the Marriott provided me with the packet of documents ... which had been circulating among the sponsors." The documents included the three communications from Paxton. Though Copp tried to revive interest in the conference, it was ultimately canceled. As a consequence, Copp complains that he lost "over $100,000 in promised or anticipated fees."

DISCUSSION

A. Were the Communications Defamatory?

In this appeal, we refrain from weighing the evidence but inquire only whether there are any triable issues of fact. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.) " 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' [Citation.] 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' " (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

The appeal presents the threshold question of which statements, if any, in the three communications--the staff memorandum, the Eisner letter and the Johnson letter--are actionable. We begin with the statutory definition of libel in Civil Code section 45: "Libel is a false and unprivileged publication by writing ... which exposes any person to hatred, contempt, ridicule, or obloquy, ... or which has a tendency to injure him in his occupation."

Some of Paxton's statements which Copp finds injurious fall into the category of opinions. Despite the broad statutory language, such opinions are not actionable as a matter of constitutional law. "An essential element of libel ... is that the publication in question must contain a...