Costa v. Superior Court

• Decision Date: 24 February 1984
• Citation: 204 Cal.Rptr. 1,157 Cal.App.3d 673
• Court: California Court of Appeals Court of Appeals
• Parties: Edward COSTA, John G. Vieira et al., Petitioners, v. The SUPERIOR COURT of California, County of Solano, Respondent, Donald PASSALACQUA, Andrew Siri, Vernon Estey and Gerald Dana, Real Parties in Interest. AO 23130.

Page 1

204 Cal.Rptr. 1

157 Cal.App.3d 673

Edward COSTA, John G. Vieira et al., Petitioners, v. The SUPERIOR COURT of California, County of Solano, Respondent Donald PASSALACQUA, Andrew Siri, Vernon Estey and Gerald Dana, Real Parties in Interest.

AO 23130.

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

Feb. 24, 1984.

Morgan D. King, Oakland, Ellen Lake, San Francisco, for petitioners.

Alfred Newman, Vallejo, for real parties in interest.

RACANELLI, Presiding Justice.

Petitioners are defendants in a libel action entitled Donald Passalacqua et al. v. Edward Costa et al., No. 82518, pending in respondent court. Following respondent court's denial of petitioners' motion for summary judgment predicated upon a claim of absolute privilege under the provisions of Civil Code section 47, subdivision 2, petitioners sought mandamus relief from this court which we summarily denied on July 8, 1983. On August 18, 1983, the California Supreme Court granted its petition for hearing and retransferred the cause to this court with directions to issue an alternative writ of mandate citing Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 148 Cal.Rptr. 242. We issued said alternative writ on August 24, 1983.

The petition seeking to compel respondent court to vacate its order of denial and to grant summary judgment in favor of petitioners arises against the following procedural background:

Petitioner Conselho Supremo Da Uniao Portuguesa Do Estado Da California (hereafter "Supreme Council"), a California nonprofit mutual benefit corporation and fraternal lodge, adopting as its exclusive logo the acronym "UPEC," issued a charter in 1895 to a Benicia group to form a subsidiary council of UPEC under the name "Conselho No. 18, Flor Da Patria UPEC" (hereafter "Council 18"). In 1904 Council 18 incorporated and in turn incorporated a subsidiary council known as "Benicia UPEC Hall Association" (hereafter "UPEC" or "Association"), the latter holding title to certain real property and a meeting hall on behalf of Council 18. It is alleged that the UPEC Association bylaws provided that the members of Council 18 shall also be members of that association; that the boards of directors of both corporate boards are the same; that both organizations meet at the same time and place; and that revenue generated from the hall rental subsidize the operating expenses of Council 18.

In 1965 UPEC Association changed its name to "Benicia Portuguese Hall Association" (hereafter "Benicia Association"); petitioner Supreme Council alleges that such change of name by the subordinate lodge was unauthorized and in violation of the UPEC bylaws.

In 1980 the Benicia Association received insurance proceeds in the amount of $150,000 as a result of a fire which destroyed the hall. Petitioner Supreme Council's repeated requests for an accounting of the insurance proceeds as provided under the bylaws were rebuffed by real parties in interest (officers and directors of both Council 18 and the Hall Association) on the basis that the subsidiary lodge was a separate organization unrelated to UPEC.

On April 26, 1982, petitioner Supreme Council filed a complaint for injunctive and declaratory relief and damages against Council 18, Benicia Association and its individual board members (real parties herein). On May 17, 1982, the trial court denied petitioner Supreme Council's request for appointment of a receiver and a preliminary injunction but restrained the Hall Association from transferring real property.

On May 27, 1982, petitioner Edward Costa, acting as Chairman of the Board of Directors of the Supreme Council, sent a letter to the membership of Council 18 (reproduced verbatim as Appendix A) for the avowed purpose of explaining the basis of the then-pending litigation and to solicit the support and views of the members relating to the issues in dispute. Thereafter, petitioner Supreme Council, purporting to act under its charter authority, revoked the charter granted to Council 18 as a result of the claimed violations. On July 29, 1982, real parties filed the underlying libel action against petitioners based on the contents of the May 27 Costa letter. Thereafter, the issue being joined, petitioners moved for summary judgment on the grounds--inter alia--that the Costa letter was published in relation to a judicial proceeding and thus protected as a matter of law under the absolute privilege provided by Civil Code section 47, subdivision 2. ¹ Real parties resisted the motion contending that the defamatory publication was made to non-litigants, bore no logical relationship to the objectives of the litigation and thus was not subject to the absolute privilege in a judicial proceeding. Relying on Izzi v. Rellas (1980) 104 Cal.App.3d 254, 163 Cal.Rptr. 689, respondent court denied the motion on the basis that a triable issue of fact existed as to whether the publication "was made in a judicial proceeding, had some connection or logical relation to a legal action, was made to achieve the objects of the litigation or involved the litigants or other participants." This petition ensued.

In Tiedemann v. Superior Court, supra, 83 Cal.App.3d 918, 148 Cal.Rptr. 242, we examined the scope of the statutory privilege in the context of a publication made during an "official proceeding authorized by law." (Civ.Code, § 47, subd. 2(3).) In reviewing extant authority we concluded that: "It is now well established in California case law that the privilege conferred under subdivision 2 is absolute and unaffected by the presence of malice. (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 864-865 ; Albertson v. Raboff (1956) 46 Cal.2d 375, 379 ; Gosewisch v. Doran (1911) 161 Cal. 511, 513-515 ; Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 824 ; Hackethal v. Weissbein (1978) 82 Cal.App.3d 559, 563 .) The absolute immunity attaches if all of the following conditions have been met: 'the publication (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objectives of the litigation; and (4) involved litigants or other participants authorized by law.' Bradley v. Hartford Acc. & Indem. Co., supra [30 Cal.App.3d] at p. 825 accord: Twyford v. Twyford (1976) 63 Cal.App.3d 916, 925 ; and Younger v. Solomon (1974) 38 Cal.App.3d 289, 301 .)"

We further concluded that: "In order that the privilege apply, it is unnecessary that the defamatory matter be relevant or material to an issue before the tribunal but need only have some proper connection or relation to the proceeding and in achieving its objectives. (Ascherman v. Natanson, supra [23 Cal.App.3d] at p. 865 ; Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 824 .)" (Id., 83 Cal.App.3d at pp. 924-925, 148 Cal.Rptr. 242.) Once the stated conditions for immunity are shown to exist, the absolute privilege applies "even though the publication is made outside the courtroom and no function of the court or its officers is invoked." (Albertson v. Raboff (1956) 46 Cal.2d 375, 381, 295 P.2d 405; Smith v. Hatch (1969) 271 Cal.App.2d 39, 45-46, 76 Cal.Rptr. 350; accord: Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 576, fn. 5, 131 Cal.Rptr. 592; Rader v. Thrasher (1972) 22 Cal.App.3d 883, 886-887, 99 Cal.Rptr. 670.) And where the facts and circumstances under which a defamatory publication was made are undisputed, the question of privilege is a matter of law. (Carpenter v. Ashley (1906) 148 Cal. 422, 423-424, 83 P. 444.)

Applying those governing principles herein, we conclude that the trial court erred in its determination that triable issues of fact existed as to the claim of absolute privilege. The record before us discloses no dispute as to the facts and circumstances surrounding the challenged publication. Thus, the trial court's conclusion--consisting of a recital of the elements underpinning the privilege--is wholly unsupported. To the contrary, as we observed, the question of privilege based upon such undisputed record presented only a question of law. The letter written to the members of Council 18 sought to explain the basis and purpose of the litigation initiated by petitioner Supreme Council against its subsidiary lodge involving claimed bylaws violations and accounting of corporate assets. Additionally, it sought the support and guidance of the membership as to the proper course of action to be undertaken by the Supreme Council on their behalf. Unquestionably the communication, though outside the courtroom, was made in connection with and related to the judicial proceeding involving the subject litigation. (Cf. Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d 573, 131 Cal.Rptr. 592; Smith v. Hatch, supra, 271 Cal.App.2d 39, 76 Cal.Rptr. 350.) It is equally clear that the content of the letter was reasonably related to the background and purpose of the pending action and designed to aid in accomplishing the objectives of ascertaining the proper legal status of the subordinate organization, declaratory relief on questions of ownership and management, fiduciary accountability and damages. Any doubt as to whether such relationship or connection existed must be resolved in favor of a finding of privilege. (Izzi v. Rellas, supra, 104 Cal.App.3d at p. 263, 163 Cal.Rptr. 689; Tiedemann v. Superior Court, supra, 83 Cal.App.3d at p. 925, 148 Cal.Rptr. 242; Twyford v. Twyford (1976) 63 Cal.App.3d 916, 926, 134 Cal.Rptr. 145.)

Finally, the subsidiary lodge members to whom the letter was addressed possessed a substantial interest in the outcome of the pending litigation and as such were authorized participants therein. (See, e.g., Brody v. Montalbano (1978) 87 Cal.App.3d 725, 733-734, 151 Cal.Rptr. 206, Izzi v. Rellas, supra, 104 Cal.App.3d 254, 163 Cal.Rptr. 689, ² Rest.2d Torts, §§ 586-587; Smith v. Hatch, supra, 271 Cal.App.2d 39, 47, 76 Cal.Rptr. 350.)

We conclude that no triable...