Eisenberg v. Alameda Newspapers, Inc.

Decision Date20 September 1999
Docket NumberNo. A076289,A076289
CourtCalifornia Court of Appeals Court of Appeals
Parties, 99 Cal. Daily Op. Serv. 7821, 1999 Daily Journal D.A.R. 9891 Ira EISENBERG, Plaintiff and Appellant, v. ALAMEDA NEWSPAPERS, INC., et al., Defendants and Respondents.

Charles O. Morgan, Jr., Andrew M. Rosner, San Francisco, for appellant.

Crosby, Heafey, Roach & May, John E. Carne, Kathy M. Banke, Steven J. Boranian, Oakland, for respondents.


Ira Eisenberg was hired by respondent Alameda Newspapers, Inc., (the Newspaper) as an investigative reporter, to write expose-style articles for the Tri-Valley Herald (the Herald), a local Alameda County newspaper that served the Pleasanton-Livermore Valley area. In May 1994, the Herald published two articles written by Eisenberg, containing allegations of "corruption," "favoritism and influence-peddling" involving Ted Fairfield, an individual hired by local developers to obtain approval from the Pleasanton city government for a controversial luxury housing development. After Fairfield made a demand for a correction in accordance with Civil Code section 48a, 1 the Newspaper published a prominent retraction in the Herald, apologizing for its previous publication of "inaccurate and misleading information" concerning Fairfield, and stating that "[t]here is no evidence" he "was involved in improper, corrupt or illegal activities" relating to the development. Shortly thereafter, the Newspaper terminated Eisenberg's employment.

Eisenberg filed suit against the Newspaper, its managing editor (respondent Tim Graham) and editor (respondent Tim Hunt), alleging defamation, false light, wrongful termination, breach of employment contract, breach of the covenant of good faith and fair dealing, and fraud. This appeal arises from the trial court's grant of respondents' motion for summary judgment on all the causes of action of Eisenberg's complaint. We affirm.


In order to understand the issues in this case, it is necessary to review the background of the dispute, which concerns Golden Eagle Estates, a 260-acre, 80-lot luxury home development located on Pleasanton Ridge in the City of Pleasanton (the City). From the preliminary stages of planning the development project (the Project) in 1984 through its approval by the City in 1988, the exact physical proximity of the development site (the Site) to the Calaveras fault was a topic of considerable controversy.

Developers Bill Currin and Mike Timm hired civil engineer Ted Fairfield to evaluate the Site and guide them through the planning process. The initial report of geologist Marc Seeley to the City in 1984 could find no evidence of the Calaveras fault, but recommended further study and "deep borings" to determine the overall stability of the Site. City Planning Director Brian Swift signed a planning staff report recommending against approval of the Project. Over the complaints of Fairfield and the developers, Swift required the preparation of an environmental impact report (EIR) on the proposed development, focusing on visual, aesthetic and traffic issues.

Meanwhile, the developers retained a second geologist, Murray Levish. Levish examined the Site, found no evidence of the Calaveras fault, and concluded that it was not there. Levish's conclusions generated A fifth geologist, Dave Rogers, was hired by the City to review a soils report performed for the developers by Levish's company. In his report, Rogers severely criticized the Levish study as contrary to all previous geological studies of the Pleasanton Ridge, and suggested that Levish was biased in favor of the developers who had hired him. Rogers stated that further soils work should not proceed until all the seismic and geological questions were resolved. He recommended that the City obtain an in-depth study to determine whether the Calaveras fault actually ran through the Site. At the time of making this recommendation, Rogers was not licensed to perform a state-mandated earthquake fault study. The City notified Rogers that his services were no longer required.

                considerable controversy.  Roy Shelmon, a soils dating expert who consulted with Levish on the Golden Eagle Site, termed Levish's conclusions "startling."   Consequently, the City hired a third geologist, Dave Carpenter, to review Levish's work.  Carpenter's evaluation was sharply critical of Levish's conclusions.  The City ordered further seismic study.  It retained a Earl Hart, a geologist from the California State Division of Mines and Geology who had previously studied the Calaveras fault, as a consultant

In early October 1988, Swift and Fairfield met with geologists Levish, Carpenter and Hart to discuss the seismic site studies. As a result of this meeting, additional trenches were dug at the Golden Eagle Site, which all three geologists examined. The results were inconclusive, and did not reveal whether or not the Calaveras fault crossed the Site of the proposed development. Around the same time, geologist Seeley wrote the City a letter disavowing Levish's conclusions. Seeley continued to believe the deep borings he had originally recommended in his initial report should be performed. Carpenter disagreed, opining on the basis of similar studies in the Livermore area that such deep borings would be inconclusive. Seeley also disputed the conclusion of soils expert Shelmon that the Site was seismically stable.

In May 1989, the City Planning Department recommended that the City approve the Golden Eagle development Project, but conditioned its approval on the retention of yet another geologist to study the Site as grading, excavation and utility trenching took place. The City ultimately approved the Project, with the recommended conditions in force. Building code requirements applicable to the Project were upgraded to require single-family homes in the development to have foundation piers extending 12 feet into the ground, rather than the 5 to 6 feet found in older homes elsewhere in Pleasanton. A sixth geologist was retained by the City to monitor the development as it proceeded. Still, no trace of the Calaveras fault was found on the Site.

Nearly six years after the Project was approved and completed, the issue of its seismic safety was reopened when charges of incompetence and professional negligence were brought by the California state licensing board against the developers' geologist, Levish, prompting him to surrender his license. Planning Director Swift was asked to review the City's files on the development amid concerns that the Project had been approved too hastily and without sufficient study.

At this point, Eisenberg entered the controversy. He interviewed Rogers, who had been the geologist most critical of the geotechnical and seismic studies of the Project Site. Rogers criticized the City's subdivision approval process, which he considered insufficiently "open." However, Rogers did not believe the City, the developer, or Fairfield had done anything illegal in obtaining approval for the Project, and he expressly told Eisenberg that. Rogers also resisted Eisenberg's repeated attempts to get him to endorse a reopened investigation of the Project. Instead, he told Eisenberg that he had "looked at it from every angle" and concluded that On April 20, 1994, an article by Eisenberg was published in the Independent, a local Pleasanton-Livermore Valley newspaper. In the article, Eisenberg quoted Rogers as saying " 'Brian Swift was greasing the skids for Ted Fairfield,' " and reported that Rogers had accused Fairfield of having "used his considerable clout to blackball his firm, Rogers/Pacific, from doing any further consulting" for the [C]ity. In fact, Rogers had not actually originated the phrase "greasing the skids"; rather, it was Eisenberg himself who suggested that expression in his telephone interview of Rogers. 2 Neither had Rogers made the accusation that Fairfield had "blackballed" him from doing further work for the City; in fact, Rogers had actually performed further consulting for the City in 1993. Having failed to review the City's files on the Project or the minutes of meetings of the City Council, Eisenberg did not know or report that Swift had originally recommended against approving the Project, and was instrumental in obtaining the additional seismic studies that showed no evidence of the Calaveras fault running through the Site.

"they did everything to the letter of the law," even though "[w]e may not like it" and "may think it was sleazy....' " Rogers referred Eisenberg to an attorney familiar with planning and subdivision law, and recommended that Eisenberg review an article Rogers had written entitled "Science versus Advocacy." Eisenberg did not read Rogers' article, contact the attorney, review the City's planning files, or research the City Council meeting minutes on the Golden Eagle Project.

In the Spring of 1994, Eisenberg contacted Tim Hunt, the new editor of the Herald, seeking employment at that newspaper. In discussions, Hunt and Eisenberg discussed salary and benefits, including retirement. They agreed that Eisenberg would be hired as a "senior writer," leaving open the possibility that he might later be redesignated a "columnist" upon the approval of the editor-in-chief. However, respondents did not make any other promises regarding the duration of Eisenberg's employment, and specifically did not suggest that he could only be terminated for good cause or would be hired as anything other than an at-will employee. The Newspaper's standard practice, as reflected in its written personnel policies and employee handbook, had been to hire employees on a 90-day probationary basis, and treat employees hired for an unspecified term as terminable at will.

Eisenberg started work at the Herald on May 1, 1994. On May 3, he filled out and signed a form explicitly stating that his employment was...

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