Fisher v. Larsen

• Decision Date: 24 December 1982
• Citation: 188 Cal.Rptr. 216,138 Cal.App.3d 627
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Ed. Law Rep. 100 Julie FISHER, Plaintiff and Appellant, v. Yvonne LARSEN, W. Daniel Larsen, Joseph Harmon, Edwin Gray, Michael Scott-Blair and Copley Press Inc., Defendants and Respondents. Civ. 24990.

Page 216

188 Cal.Rptr. 216

138 Cal.App.3d 627, 8 Ed. Law Rep. 100

Julie FISHER, Plaintiff and Appellant, v. Yvonne LARSEN, W. Daniel Larsen, Joseph Harmon, Edwin Gray, Michael Scott-Blair and Copley Press Inc., Defendants and Respondents.

Civ. 24990.

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

Dec. 24, 1982.

Hearing Denied March 23, 1983.

Julie Fisher, in pro. per.

Hillyer & Irwin, Oscar F. Irwin, Margaret Z. Johns, Gray, Cary, Ames & Frye, David E. Monahan and Marilyn L. Huff, San Diego, for defendants and respondents.

WORK, Associate Justice.

Following an aggressive election campaign, highlighted by intense media coverage, Julie Fisher lost her seat on the San Diego Unified School District Board of Education. Fisher blames her defeat on defamatory statements made by members of her successful challenger's camp, and libels published in local newspapers.

In this defamation action, Fisher, acting as her own attorney, appeals summary judgments in favor of her successor, Yvonne Larsen, and certain Larsen campaign workers; summary judgments in favor of reporter Michael Scott-Blair and Copley Press Inc. (Copley); and orders sustaining demurrers to certain causes of action. Because there remain triable issues of fact, we reverse one of the summary judgments for Copley and Scott-Blair, and each summary judgment favoring Yvonne Larsen and her campaign workers (except for designated parties). We affirm the order sustaining demurrers and reject other claims of error cited by Fisher. Finally, we hold the causes for Fisher's failure to prevail in the election are too uncertain to allow her to recover special damages reflecting the lost future and financial benefits of that position in a defamation action.

Factual Background

The contested 1977 election closely followed an illegal, widely-publicized, four-day teachers' strike by the San Diego Teachers' Association (Union) after which Fisher and other school board members granted amnesty to the strikers although the strike activities violated a court injunction. During the primary and general elections campaigns, Fisher and Larsen engaged in a series of bitter claims and counterclaims extensively reported by the two local Copley Press, Inc. newspapers, (the San Diego Union, and the Tribune) and other local media outlets.

Fisher's suit charges the Larsen campaign defendants, ¹ San Diego Union reporter Scott-Blair, and Copley with conspiring to defame her during the campaign. She cites various publications: some describing her actions during the teachers' strike in a manner which, in other contexts would have been innocuous but, given her official status and the apparent media and community hostility toward the illegal strike, proved to be politically improvident, and other publications explicitly accusing her of attempting to bribe and blackmail a public official, the superintendent of schools.

The Summary Judgments

When overruling demurrers to causes of action based upon these allegations in Fisher's first amended complaint, the trial court determined the following separate public statements were reasonably subject to a defamatory per se interpretation:

1. Yvonne Larsen's press-conference question: "Do taxpayers like it when Fisher appears at Union rallies and supports their demands?" (susceptible to an interpretation Fisher, an elected school board official, approved and aided an illegal strike by the Teachers' Association).

2. Contents of a San Diego Union article headlined "Support for Teacher's Union," containing the apparently factual assertion "She openly supported the teachers during their four-day strike in June" (a claim suggesting Fisher was guilty of breaching her official trust).

3. A San Diego Union article flatly stating "Fisher supported and marched with the striking teachers last June." (The inaccuracy of the assertion Fisher marched with the strikers was admitted in a later San Diego Union editorial.)

4. Public charges by Yvonne Larsen accusing Fisher of:

(a) threatening to expose the school board superintendent to false charges of misconduct and illegal acts sufficient to cause him to lose his position unless he officially collaborated with the Teachers' Union, which Larsen characterized as "outright blackmail" and "nothing less than blackmail."

(b) being associated with the illegal teachers' strike "every step of the way;" and

(c) violating her official public trust by disclosing confidential, privileged information to the plaintiffs in a school integration case to which the school board was an adverse party. ²

5. Press reports of the Larsen "blackmail" charge in news coverage of the meeting during which the accusations were made.

6. Miscellaneous public comments by Yvonne Larsen that Fisher "repeatedly said she would support striking teachers."

7. Yvonne Larsen's charges in a press release accusing Fisher of: (a) violating school district policies and state and federal laws by infringing upon the students' right to privacy; and (b) violating her oath of office by collaborating in the illegal teachers strike.

8. The San Diego Union's slanted reporting of Larsen's privacy invasion remarks in an article headed "Pupil Privacy Law Broken by Fisher, School Aide Says." (Unobtrusively buried in the article is the aide's acknowledgment both Fisher and the school district had unintentionally violated the privacy laws.)

9. A news article suggesting Fisher had stated she would support illegally striking teachers under similar circumstances in the future.

Each of these publications are discussed hereafter in the context of the causes of action to which it relates.

Discussion

The holding of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, bars a public figure, from recovering for defamation unless actual malice is shown by clear and convincing evidence. This requires showing the disseminator of the falsehood either knew it to be untrue or made the publication with reckless disregard for truth.

The summary judgments may be upheld only if the evidence, construed favorably to Fisher, raises no triable issues of fact. It is not sufficient the moving declarations, standing alone, would support a defense judgment. The trial court may not weigh the credibility of declarants nor pass on the merits of the issues presented, and must construe movants' declarations strictly. (Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 851-852, 94 Cal.Rptr. 785, 484 P.2d 953.)

Where allegedly libelous remarks can be understood by an average reader to be either a non-actionable expression of opinion or as a purported truthful statement of fact, the issue may not be resolved by summary judgment, but is one for the trier of fact. (Slaughter v. Friedman, 32 Cal.3d 149, 154, 185 Cal.Rptr. 244, 649 P.2d 886.) However, where media publications are couched in ambiguous terms, a finding of actual malice may not be found unless the jury is convinced "not only that the words were reasonably understood in their defamatory, factual sense, but also that the defendant either deliberately cast his statements in an equivocal fashion in the hope of insinuating a defamatory impact to the reader, or that he knew or acted in reckless disregard of whether his words would be interpreted by the average reader as defamatory statements of fact." (Good Government Group of Seal Beach, Inc. v. Superior Court, 22 Cal.3d 672, 684, 150 Cal.Rptr. 258, 586 P.2d 572.) However, whether the publications are forthright or ambiguous, there must be some showing of potential actual malice to avoid summary judgment on that issue. (Id., at p. 685, 150 Cal.Rptr. 258, 586 P.2d 572.)

Fisher, not a lawyer, claims the allegations of actual malice in her unverified complaint satisfies the required showing of actual malice. Fisher misconstrues her burden. While a demurrer tests the sufficiency of the pleadings and, in some instances, material allegations may be pleaded in the form of ultimate facts and in conclusionary language, summary judgment is designed to determine whether triable issues facially raised by the pleading are "real or merely the product of an inept pleading." (Coyne v. Krempels, 36 Cal.2d 257, 262, 223 P.2d 244.) Code of Civil Procedure section 437c requires a valid complaint be dismissed "unless the other party, by affidavit or affidavits, shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact." (Coyne v. Krempels, supra, at p. 262, 223 P.2d 244.) Allegations of a pleading may not be considered by a trial court to support or to oppose a summary judgment. (Id., at pp. 262-263, 223 P.2d 244.) Apparently, because she relied substantially upon conclusionary allegations of actual malice in each cause of action of her unverified complaint, Fisher filed only a short non-factual declaration attached to her points and authorities and answers she made to Yvonne Larsen's interrogatories. Thus, our review is limited to the numerous depositions provided the trial court, Fisher's answers to interrogatories, and declarations in support of the summary judgment. ³

"PARTIAL" SUMMARY JUDGMENTS ⁴

Special Damages for Losses Flowing From Fisher's Election Defeat

In each cause of action, Fisher's only claim for special damages is based upon the loss of her elective office and its attendant earnings (salary, dental benefits, trips and other benefits). Civil Code section 48a, subdivision 4(b), relating to news media, defines special damages as those suffered in respect to property, business, trade, profession or occupation and money spent as a result of the alleged libel and allows these to be recovered even where there is no demand for retraction.

The question of whether special damages limited to benefits and salaries, obtainable only by election to public office, are recoverable in a defamation ⁵ action appears to be one of first impression in this state although it has previously been...