Environmental Planning & Information Council v. Superior Court, S.F. 24578

CourtUnited States State Supreme Court (California)
Citation36 Cal.3d 188,203 Cal.Rptr. 127,680 P.2d 1086
Decision Date07 June 1984
Docket NumberS.F. 24578
Parties, 680 P.2d 1086, 10 Media L. Rep. 2055 ENVIRONMENTAL PLANNING AND INFORMATION COUNCIL OF WESTERN EL DORADO COUNTY, INC., et al., Petitioners, v. The SUPERIOR COURT of El Dorado County, Respondent; DETMOLD PUBLISHING CORPORATION, Real Party in Interest.

Page 127

203 Cal.Rptr. 127
36 Cal.3d 188, 680 P.2d 1086, 10 Media L. Rep. 2055
The SUPERIOR COURT of El Dorado County, Respondent;
S.F. 24578.
Supreme Court of California.
June 7, 1984.

Page 128

[36 Cal.3d 189] [680 P.2d 1087] Michael H. Remy, Tina A. Thomas, Remy & Thomas, John M. Poswall and Friedman, Collard, Poswall & Thompson, Sacramento, for petitioners.

[36 Cal.3d 190] No appearance for respondent.

C. Michael Finen, Jonathan P. Burris and Priest, Katz & Finen, Cameron Park, for real party in interest.

GRODIN, Justice.

This writ proceeding stems from an action by Detmold Publishing Company (Detmold), publisher of a newspaper, the Foothill Times, against Environmental Planning and Information Council of Western El Dorado County, Inc. (EPIC), a nonprofit corporation, and several of its officers. The gist of the complaint, insofar as it concerns this proceeding, is that EPIC published a newsletter criticizing the newspaper's editorial policies on environmental matters, and calling upon readers of the newsletter not to patronize businesses that advertise in the Foothill Times. The complaint seeks injunctive relief, and both punitive and compensatory damages. Defendants moved for summary judgment with supporting affidavits and, when their motion was denied, filed this petition in mandate to compel reversal of the trial court's order of denial.

Normally courts do not intervene at the pleading stage of a pending action (Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379). We consider that such intervention is warranted here, however, because of the infringement upon defendants' constitutional rights of free speech which would be implicated if the action were permitted to proceed. (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572, cert. den. sub nom. Good Government Group of Seal Beach, Inc. v. Hogard (1979) 441 U.S. 961, 99 S.Ct. 2406, 60

Page 129

[680 P.2d 1088] L.Ed.2d 1066; Bill v. Superior Court (1982) 137 Cal.App.3d 1002, 1014-1015, 187 Cal.Rptr. 625.) Having issued an alternative writ, we now determine that there exists no triable issue of material fact, and that defendants are entitled to summary judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c); Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 271, 83 Cal.Rptr. 237). Accordingly, we shall order issuance of a peremptory writ as petitioners have requested.

EPIC is a nonprofit corporation with a membership of approximately 100 persons in El Dorado County. Its purpose is to promote citizen participation in public affairs and, according to its articles of incorporation, "conservation[36 Cal.3d 191] and preservation of, and general public appreciation for, the unique historical and natural resources" of western El Dorado County. 1

EPIC's April 1982 newsletters criticized the editorial policies of the Foothill Times. In the context of a discussion of the alleged prodevelopment bias of the El Dorado Irrigation District (EID) directors, the newsletter stated in part: "[T]he western county areas are flooded by the Foothill Times, a newspaper that doesn't deserve to be called one. This is the rag that played a major role in last November's election of George Gribkoff and John Smith. Since then it has continued to ignore established facts, print inaccuracies, and blatantly editorialize in its 'news' articles." The newsletter complained that the four directors of the EID, backed by the newspaper, had taken over the irrigation district on behalf of a "very limited development group."

The newsletter went on to ask, "What can be done about this outrageous situation?" It then suggested three courses of action. First, "The most important step is for you to be informed. An adequately informed citizenry is the only hope for curing bad government.... If you read newspaper articles thoughtfully, talk to people, and attend some EID meetings, you'll develop a fair grasp of what's going on."

Second, the newsletter suggested; "Whenever something puzzles you or infuriates you, write a letter to the editor. Small letters are big tools. Encourage other concerned people to do the same."

The third possible course of action was phrased as a question: "What about contacting businesses advertising in the Foothill Times and requesting that they discontinue that advertising? Freedom of speech is one thing; vicious, irresponsible journalism is another, and perhaps you would prefer not to patronize businesses that advertise in such a publication." The newsletter went on to propose a recall of the four EID directors.

Nothing more was said in the newsletter about the Foothill Times, except that attached to the two-page newsletter was a list of 80 nonclassified advertisers in two issues of the weekly newspaper. At the top of the list, the newsletter cautioned, "This is not a black list! No condemnation of these businesses is implied! This list is merely for your convenience should you wish to contact Foothill Times advertisers."

[36 Cal.3d 192] About two weeks after this newsletter was sent to EPIC's members, real party responded by filing the instant lawsuit against EPIC and three of its leaders. Two causes of action, intentional interference with economic relationship and libel, were alleged. Real party sought general and punitive damages and prayed for a "preliminary and permanent injunction restraining and enjoining defendants ... from publishing or otherwise making false and disparaging statements regarding plaintiff's newspaper and from interfering or inducing others to interfere with plaintiff's business relationship with its advertisers or other customers."

A series of procedural maneuvers ensued. An order to show cause regarding the injunction was issued and both parties

Page 130

[680 P.2d 1089] briefed the issue; meanwhile EPIC filed a demurrer. The demurrer alleged primarily that the newsletter uttered only opinion and as such was protected by the First Amendment. Respondent superior court overruled the demurrer as to the first cause of action (intentional interference with economic relationship) and sustained the demurrer to the libel cause of action in a September 15, 1982, minute order. EPIC then answered the complaint.

With real party's request for preliminary injunction still pending, EPIC moved for summary judgment on the remaining cause of action, asserting that summary judgment "must be granted to protect Defendants' First Amendment Constitutional rights, that Defendants never actually organized to create a boycott, that even if they had, the action is privileged ...." In support of that motion, EPIC filed extensive points and authorities and three affidavits from EPIC leaders. All three averred that they had never contacted any of the Foothill Times' advertisers and that they were unaware of anyone who had. Chairman Langley, in fact, claimed to be unaware of anyone writing a letter to the editor of the Foothill Times, the second alternative mentioned in the newsletter. All three declared that a boycott of real party's advertisers had never been discussed at any of EPIC's meetings. EPIC's former chairperson declared that the only reason communication with advertisers was even mentioned as a possibility "is because we felt that since Foothill Times was delivered at no cost, the only way to potentially exert pressure on Foothill Times would be, perhaps, through its advertisers." Real party opposed the motion but filed no counteraffidavits.

On December 17, 1982, respondent court granted a preliminary injunction barring EPIC from "interfering or inducing others to interfere" with real party's contractual relationships with its advertisers or customers. EPIC sought "reconsideration and clarification" of the injunction and respondent court on February 8, 1983, dissolved the injunction. On March 30, 1983, however, EPIC's motion for summary judgment was denied. Defendants [36 Cal.3d 193] then sought a writ of mandate and/or prohibition commanding respondent court to set aside the order denying the motion for summary judgment. After the Court of Appeal denied the petition we granted hearing and issued an alternative writ to consider the questions thus posed.


Defendants' entitlement to summary judgment turns upon whether there exists "no triable issue as to any material fact." (Code Civ.Proc., § 437c, subd. (c).) Plaintiff asserts, and for purposes of analysis we accept, that there exists a triable issue as to whether the newsletter was intended, or was likely to be viewed by readers, as merely "suggesting" a boycott of plaintiff's advertisers, or whether it was intended and likely to be viewed as affirmatively advocating and encouraging such conduct. We assume also that there may exist a triable issue of fact--despite the denials by individual...

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