Everett v. California Teachers Ass'n

• Decision Date: 09 October 1962
• Citation: 208 Cal.App.2d 291,25 Cal.Rptr. 120
• Court: California Court of Appeals Court of Appeals
• Parties: David B. EVERETT, Plaintiff and Appellant, v. CALIFORNIA TEACHERS ASSOCIATION, Southern Section, an Association, et al., Defendants and Respondents. Civ. 26059.

Page 120

25 Cal.Rptr. 120

208 Cal.App.2d 291

David B. EVERETT, Plaintiff and Appellant, v. CALIFORNIA TEACHERS ASSOCIATION, Southern Section, an Association, et al., Defendants and Respondents.

Civ. 26059.

District Court of Appeal, Second District, Division 2, California.

Oct. 9, 1962.

Alexander Lloret Mazzia, Torrance, for appellant.

Tanner, Odell & Taft, Donald W. Odell, Sackett & Francoeur, Harry Sackett, Los Angeles, Johnson & Stanton, Gardiner Johnson, Thomas E. Stanton, Jr., San Francisco, for respondents.

FOX, Presiding Justice.

The plaintiff in this action was Acting Superintendent of the Wiseburn School District from July 1959 to May 1960, at which time he became the Assistant Superintendent, Curriculum, of the same school district. He held this latter position at the time of the filing of the complaint.

In June 1960, the defendants published a certain report entitled 'A Report on a Professional Problem in the Wiseburn Elementary Schools.' ¹ Plaintiff brought this action for libel against the California Teachers Association, Southern Section, and twelve named individuals. All of the defendants filed a general demurrer which was sustained by the trial court without leave to amend. ² Plaintiff appeals from the ensuing judgment of dismissal.

'Normally, privilege is an affirmative defense which must be pleaded in the answer [citation]. However, if the complaint discloses existence of a qualified privilege, it must allege malice to state a cause of action (Locke v. Mitchell, 7 Cal.2d 599, 602, 61 P.2d 922, ).' (Morris v. National Federation of the Blind, 192 Cal.App.2d 162, 164-165, 13 Cal.Rptr. 336, 338; see cases collected in 51 A.L.R.2d 552, 557-559.) The first issue to be decided on this appeal therefore is: Does the complaint disclose the existence of a privilege? The answer to this inquiry is in the affirmative.

The following allegations in the complaint assert facts which show a qualified privilege under Civil Code SECTION 47(3): PARAGRAPH II³ of the complaint names one of the defendants as the 'California Teachers Association, Southern Section.' Plaintiff alleges in paragraph III that the other defendants 'were members of the Commission on Personnel Standards and Ethics of said association and were members of the association; that said defendants were duly appointed by said association and were acting on behalf of the association, and on behalf of themselves in the preparation and publication of a certain report entitled 'A REPORT ON A PROFESSIONAL PROBLEM IN THE WISEBURN ELEMENTARY SCHOOLS; * * *' And in paragraph IV, it is alleged: 'That plaintiff was at all times hereinafter mentioned and is now an employee of the Wiseburn School District, County of Los Angeles, State of California; that, during the period from July 10, 1959, to May 16, 1960, plaintiff was Acting Superintendent of said district; that plaintiff now is and since May 17, 1960, has been Assistant Superintendent, Curriculum, of said district; that plaintiff is qualified and duly accredited by the State of California to serve in the capacities of Acting Superintendent, Assistant Superintendent, Curriculum, and Curriculum Director.'

A publication seeking to convey pertinent information to the public in matters of public interest comes within the purview of the privilege in Civil Code section 47(3). (Howard v. Southern California etc. Newspapers, 95 Cal.App.2d 580, 213 P.2d 399.) 'We may make judicial notice of the fact that the overwhelming majority of the citizens of this country are interested in such matters and in questions which affect the education and proper training of our youth.' (Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 350, 121 P.2d 761, 766.)

In Heuer v. Kee, 15 Cal.App.2d 710, p. 715, 59 P.2d 1063, p. 1065, in upholding a similar claim of privilege, the court said: 'The conduct of appellant in the discharge of her duties as a teacher was a matter of public concern, and there was sufficient evidence to justify the trial court in concluding that the publication of the matter complained of was, in the instant case, for the public benefit.'

In addition to the public's interest and concern in these matters, certificated public school employees and their associations have a legitimate interest in investigating and reporting on the conduct of an individual certificated employee.

The report, therefore, if without malice, was a privileged communication within the meaning of section 47(3), Civil Code. 'In such a case malice becomes the gist of the action and it must exist as a fact before the cause of action will lie. * * * Hence, where the complaint discloses a case of qualified privilege, no malice is presumed ⁴ and in order to state a cause of action the pleading must contain affirmative allegations of malice in fact' (Locke v. Mitchell, 7 Cal.2d 599, 602, 61 P.2d 922, 923.) (Emphasis added.)

Plaintiff in the instant case has set forth no facts showing that malice existed at the time the communication was published. It is alleged in the complaint that the report contains certain 'false, libelous, malicious and defamatory' statements concerning plaintiff and '[t]hat defendants and each of them wickedly and maliciously and with intent and design to injure, disgrace, and defame plaintiff and to bring him into public discredit published said report and statements therein complained of and that said published statements as quoted in paragraphs VI through XVI herein were false, libelous, malicious, defamatory, and unprivileged; that defendants and each of them intervened in Wiseburn School District affairs and intentionally and maliciously defamed plaintiff in an attempt to cause the dismissal of plaintiff from his employment; that because of said wilful and malicious publication, plaintiff is entitled to recover exemplary and punitive damages in the sum of $200,000.00.'

To destroy the privilege plaintiff must allege and prove that defendants entertained toward him a feeling of hatred or ill will "* * * going beyond that which the occasion apparently justifies * * *" and "'* * * different from that which prima facie rendered the communication privileged, and being a motive contrary to good morals."' (DeMott v. Amalgamated Meat Cutters, 157 Cal.App.2d 13, 27, 320 P.2d 50, 58; cf. Civil Code, sec. 48a 4(d).) The above allegations appear to be nothing more than mere conclusions of the pleader 'unless the article itself lends support to such a conclusion.' (Locke v. Mitchell, supra, 7 Cal.2d 599, 603, 61 P.2d 922, 924; Taylor v. Lewis, 132 Cal.App. 381, 384, 22 P.2d 569.) (Emphasis ours.)

The report in the case sub judice does not support the conclusion that it was maliciously published. The report shows:

Defendants are the California Teachers Association, Southern Section, an incorporated professional organization of teachers, and the members of the Commission on Personnel Standards and Ethics of that organization.

The Commission was requested to make its study and report by the Wiseburn Faculty Association, a chartered chapter of the California Teachers Association, all but one of whose members in 1960 were members of the California Teachers Association. Prior to requesting the study, the Faculty Association had conducted a survey which showed that 83.5% of the teachers in the district 'felt that the teacher morale was...