Evans v. Unkow

• Decision Date: 04 October 1995
• Docket Number: No. A066860,A066860
• Citation: 38 Cal.App.4th 1490,45 Cal.Rptr.2d 624
• Court: California Court of Appeals Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 7842, 95 Daily Journal D.A.R. 13,369 A. Peter EVANS, Plaintiff and Appellant, v. Victor UNKOW, et al., Defendants and Respondents.

Page 624

45 Cal.Rptr.2d 624

38 Cal.App.4th 1490, 95 Cal. Daily Op. Serv. 7842,

95 Daily Journal D.A.R. 13,369

A. Peter EVANS, Plaintiff and Appellant, v. Victor UNKOW, et al., Defendants and Respondents.

No. A066860.

Court of Appeal, First District, Division 5, California.

Oct. 4, 1995.

William M. Simpich, Oakland, for plaintiff and appellant.

Tony J. Tanke, Tanke & Willemsen, Belmont, for defendants and respondents.

KING, Associate Justice.

I. INTRODUCTION

In this case we hold that declarations on a special motion to strike a SLAPP suit (Code Civ.Proc., § 425.16) may not include averments on information and belief. We affirm a judgment dismissing a defamation action by A. Peter Evans against ten individual defendants for failure to establish a probability he would prevail. (Code Civ.Proc., § 425.16, subd. (b).)

II. BACKGROUND

Evans was a member of the Board of Directors of the East Palo Alto Sanitary District. On November 4, 1993, the defendants signed a notice of intention to circulate a petition to recall him. (Elec.Code, §§ 27020 et seq.)

The notice stated the following "reasons for the proposed recall" (Elec.Code, § 27020, subd. (b)): "Spent over $8,000.00 on a party, but less than $6,700.00 on pipeline repair. [p] Hired friends as party consultants, costing taxpayers $3,000.00. [p] Went to Palm Springs, overspent $4,200.00 travel budget. Refused to repay the unauthorized funds. [p] Spent $6,000.00 for an ornamental fireplace, yet refused to spend less than $1,500.00 testing for toxic chemicals. High levels of arsenic were later discovered. [p] Proposed spending $3 Million on Nairobi center, to prevent a casino, rates could rise to nearly $500.00 for every home and apartment to purchase it. [p] Attempted to hire his personal attorney to represent District. [p] Endangered the health of thousands of community residents by refusing to test industrial sewage to investigate discharges of toxic substances into the system. [p] Blocked action on lethal cyanide contamination (20,000 gallons) within the District. [p] Refused to repair a known pipeline leak in an area of arsenic contaminated groundwater. [p] Failed to replace major pipeline serving 1,000+ apartments and homes: exposing residents (mainly low-income apartments) to health risk from contaminated sewage. [p] Public attacks on Mayor and City Council. [p] Denied legal representatives of local business permission to speak in public sessions."

Evans was eventually voted from office in a recall election. Evans sued the ten defendants for defamation and related torts. They filed a special motion to strike under Code of Civil Procedure section 425.16, which permits courts to strike a so-called "Strategic Lawsuit Against Public Participation," or SLAPP suit, "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances" (Code Civ.Proc., § 425.16, subd. (a)), "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim" (Code Civ.Proc., § 425.16, subd. (b)).

Subdivision (b) of section 425.16 states, "In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." The defendants submitted declarations by themselves and by nonparty Dennis C. Scherzer, another board member, in support of the motion to strike.

Scherzer's declaration discussed his "political differences" with Evans, stating that "I have dissented from financial decisions made by the District Board and have protested its actions." The declaration described an incident at a board meeting on July 8, 1993, when Evans, who is African-American, "shouted me down," "falsely accused me of attacking the District Manager because he was a 'black man,' " and "went on to call me a 'racist dog.' " The declaration also asserted facts underlying each of the reasons asserted in the recall notice, and explained that before the defendants signed the notice he "generally discussed" the reasons with them and informed them that the reasons "were true and correct statements and a fair comment on the actions of A. Peter Evans in his capacity as a public official and member of the Board of the East Palo Alto Sanitary District."

The defendants' declarations each contained identical statements that their knowledge of Evans was "based on a number of sources. I read local newspapers reporting board actions and District operations. I discuss District issues with other citizens, some of whom attend board meetings. I have formed my opinions and beliefs about the District and the performance of its board, including board member A. Peter Evans, from these various sources." The declarations further stated that Scherzer had written the reasons asserted in the recall petition, and "Scherzer has a reputation for truth and veracity in this community. To my knowledge, he has never made any false statement about the District, its operations, or the actions of its board. Based on my own information as well as Scherzer's superior knowledge as a board member and his reputation, at the time I signed and circulated the Notice of Intention and the Recall Petition, I believed the statements made in the Reasons to Recall section. I had no reason to doubt their accuracy."

In opposing the special motion to strike, Evans submitted his own declaration, responding to the allegations in the recall petition. His declaration also averred, "Director Scherzer and I are political adversaries. We have argued about many matters. On the basis of information and belief, I allege that our adversarial relationship is a matter of common knowledge to the defendants, throughout the community and in the public media that the defendants claim to rely on as a main source of information."

The defendants filed written evidentiary objections to much of Evans's declaration as being improper opinion and argument. They also objected to Evans's averment on information and belief concerning defendants' knowledge of his adversarial relationship with Scherzer, on the ground that " 'information' and 'belief' is not [a] foundation for admissible evidence."

The court granted the special motion to strike and rendered judgment dismissing the action. In a written decision, the court ruled that Evans had failed to prove constitutional malice--i.e., knowledge of falsity or reckless disregard of the truth (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686)--or that the challenged statements were false. The court also said it "has not considered the substantial portions of plaintiff's declaration in opposition which are argument and mere opinion, thereby sustaining defendants' objections on those grounds." Finally, the court commented, "To permit Mr. Evans's case to go forward with the woeful showing made by him would be in clear contravention of the legislative policy set forth in CCP § 425.16 and impermissibly 'chill' the debate and discussion so necessary to a healthy democratic process."

Evans moved for reconsideration, asking for the first time that the court permit a reasonable period of discovery under subdivision (g) of Code of Civil Procedure section 425.16, which states that discovery is stayed upon the filing of a special motion to strike but "[t]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." The court denied reconsideration.

III. DISCUSSION

In opposing the special motion to strike, Evans had the burden of establishing a "probability" that he would "prevail on the claim." (Code Civ.Proc., § 425.16, subd. (b).) This means he had to present evidence showing he would establish a prima facie case at trial. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 355, 42 Cal.Rptr.2d 464; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823-824, 33 Cal.Rptr.2d 446; Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 746, 36 Cal.Rptr.2d 687.) ¹ On appeal, we must independently review the entire record to determine whether Evans made a sufficient prima facie showing of clear and convincing evidence of constitutional malice. (Robertson v. Rodriguez, supra, 36 Cal.App.4th at p. 358, 42 Cal.Rptr.2d 464.)

Evans contends he made a prima facie showing of constitutional malice in two ways: (1) the defendants had "obvious reasons to doubt the veracity" of Scherzer (St. Amant v. Thompson (1968) 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262) because Scherzer and Evans were known to be political adversaries, and (2) the allegations that Evans had refused to repair a known pipeline leak of arsenic and had blocked action on lethal cyanide contamination were "so inherently improbable that only a reckless [person] would have put them in circulation" (ibid.).

On the first point, it is true that reliance solely on "a source known to be hostile" toward the plaintiff may support a finding of reason to doubt the source's veracity, and hence constitutional malice. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 640, 188 Cal.Rptr. 216; see generally Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 258, 208 Cal.Rptr. 137, 690 P.2d 610.) It is also true that, although political adversity alone does not necessarily equate with hostility, the record in this case contains specific evidence of a hostile encounter between Scherzer and Evans, consisting of Scherzer's own averments concerning their confrontation at the board meeting of July 8, 1993.

Evans failed, however, to establish that the defendants knew of such hostility. There was no evidence they were present at the July 8, 1993, board meeting or otherwise witnessed or heard of any hostility between Evans and Scherzer. (Compare Fisher v. Larsen, supra, 138 Cal.App.3d at p. 639, 188 Cal.Rptr. 216 [defendants acknowledged their awareness of...