Fuhrman v. California Satellite Systems
| Decision Date | 28 March 1986 |
| Citation | 231 Cal.Rptr. 113,179 Cal.App.3d 408 |
| Parties | Marian FUHRMAN, Plaintiff and Appellant, v. CALIFORNIA SATELLITE SYSTEMS, et al., Defendants and Respondents. Civ. 24210. |
| Court | California Court of Appeals Court of Appeals |
Porter, Scott, Weiberg & Delehant, Mary F. LeVine and Ed Weiberg, Sacramento, Bronson, Bronson & McKinnon, Paul H. Cyril, Elliot L. Bien and Richard R. Dale, San Francisco, for defendants and respondents.
Plaintiff Marian Fuhrman appeals from a judgment dismissing her first amended complaint after the court sustained defendants' demurrers without leave to amend. The primary issue presented on appeal is whether two settlement demand letters sent by defendants to plaintiff and several thousand other residents of Sacramento County are absolutely privileged as publications made in connection with a judicial proceeding. (Civ.Code, § 47, subd. 2.)
We conclude that under the present posture of the case the trial court erred in finding as a fact that the letters are absolutely privileged and on that ground sustaining the demurrers without leave to
amend. As to part of the complaint, the demurrers were properly sustained without leave to amend on other grounds. Accordingly, we shall reverse in part and affirm in part.
We accept as true all material facts properly pleaded in plaintiff's first amended complaint. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214, 197 Cal.Rptr. 783, 673 P.2d 660.)
Plaintiff is a resident of Sacramento County and has a television antenna on her residence which was installed prior to her occupancy. On December 6, 1983, plaintiff received a form letter from defendant Roger Stewart, an attorney representing defendant California Satellite Systems (Cal-Sat), accusing her of having a microwave antenna on her residence which is tuned to and receiving transmissions of "ON TV" television programming. 1 Cal-Sat is the sole licensee for microwave transmission of ON TV programming in the Sacramento metropolitan area. The letter further stated plaintiff was receiving the ON TV signal without paying the monthly subscriber fee and that such unauthorized reception of a pay television signal violated federal law, entitling Cal-Sat to damages of $100 per day or a minimum of $1,000, whichever is greater.
Stewart advised Cal-Sat had instructed him to file suit against plaintiff in federal court unless plaintiff (1) removed the unauthorized equipment; (2) signed an attached agreement to stop illegal reception of the ON TV signal; and (3) paid Cal-Sat $275 by January 9, 1984, as a settlement of Cal-Sat's claims against plaintiff. Stewart stated this was plaintiff's only opportunity to settle the claim. The same letter was sent to approximately 8,700 persons.
Defendants' accusations were made without reasonable grounds for believing they were true. Plaintiff's antenna is not a microwave receiver. She was not receiving nor had she ever received Cal-Sat's ON TV transmission. On December 9, 1983, plaintiff wrote to Stewart explaining that she never used the antenna on her roof and her television was not connected to it. She invited someone from Cal-Sat to inspect her residence to verify her statements.
On December 30, Michael Dawson, general manager of Cal-Sat, sent another form letter to plaintiff. Dawson reminded her of Stewart's previous letter and, apparently trying to cover all bases, stated that Cal-Sat had either not received a satisfactory response from plaintiff or not heard from her at all. 2 Dawson stated Cal-Sat was following procedures "utilized by several other successful anti-piracy programs throughout the country" and had instructed its attorney "to pursue this piracy campaign to the fullest extent." Dawson attached a notice from the Federal Communications Commission stating it is illegal to receive an "MDS" signal such as Cal-Sat's without the authorization of the sender. Dawson reiterated that January 9, 1984, was the final date on which plaintiff could settle the matter according to Cal-Sat's terms. Other recipients of Stewart's letter attempted to explain their positions but were either ignored or their explanations were summarily rejected by Cal-Sat.
On January 19, 1984, plaintiff filed an amended class action complaint on behalf of herself and all 8,700 recipients of the letters described herein. Other members of the class have either received the Cal-Sat signal but discontinued its reception, continued its reception as a subscriber, or continued its reception without subscribing.
The complaint alleges seven causes of action: extortion, fraud, negligent misrepresentation, invasion of privacy, intentional infliction of emotional distress, conspiracy and violation of the Fair Debt Collection Practices Act (15 U.S.C. § 1692 et seq.). As to each of the first six causes of action, plaintiff alleges damages consisting of "severe intimidation, shock, distress, humiliation On March 13, 1984, Cal-Sat filed a voluminous general and special demurrer to the complaint and a motion to strike the complaint. In support of the demurrer and motion to strike, Cal-Sat argues the causes of action for extortion, fraud, negligent misrepresentation, intentional infliction of emotional distress, and conspiracy were barred by the absolute privilege which cloaks publications by parties in connection with a pending or contemplated judicial proceeding. (Civ.Code, § 47, subd. 2.) 3 Cal-Sat further claimed a qualified privilege for good faith assertion of its legal rights while pursuing its economic interests. Cal-Sat separately demurred to all causes of action on grounds of uncertainty, vagueness and ambiguity, insufficient facts to constitute the causes of action, and insufficient facts to support punitive damages as to the first through sixth causes of action. The demurrer to the class allegations was on the ground plaintiffs do not meet the requirements for a class action.
alarm, frustration, harassment, embarrassment, defamation and disruption" and expenditure of "sums of money for legal advice and representation...." In addition, in each of the first six causes of action, plaintiff seeks punitive damages under Civil Code section 3294 in the amount of $87,000,000, or $10,000 as to each class member. In the seventh cause of action, violation of the Fair Debt Collection Practices Act, plaintiff [179 Cal.App.3d 418] seeks damages of $1,000 per named plaintiff plus $500,000 or one percent of the net worth of Cal-Sat and defendant Graphic Scanning, Cal-Sat's parent company.
On March 26, 1984, defendants Roger T. Stewart and Stewart's employer, the law firm of Weintraub, Genshlea, Hardy, Erich & Brown, filed a general and special demurrer to the first through sixth causes of action on grounds of absolute privilege, failure to state sufficient facts to constitute causes of action, and uncertainty and ambiguity.
The matter was argued May 7, 1984, and the court sustained the demurrers without leave to amend as to the entire complaint. The court concluded "as a matter of factual finding" that the letters were subject to the absolute privilege of Civil Code section 47 and on that basis sustained the demurrers to the actions for extortion, fraud, negligent misrepresentation, intentional infliction of emotional distress, and conspiracy. Cal-Sat's demurrer to the action under the federal debt collection law was sustained on the ground that "Cal-Sat [does not] fall[ ] into the definition of the federal legislation, ..." The court also ruled the action was not properly a class action. As to the cause of action for invasion of privacy, the court felt the deficiencies of the complaint could be cured by amendment, but, at the request of plaintiff's counsel, sustained the demurrers to that action without leave to amend to allow plaintiff to appeal the entire matter. The complaint was then dismissed.
The sole question presented by the parties on appeal is whether the letters sent by defendants are absolutely privileged under Civil Code section 47, subdivision 2. For reasons herein stated, we conclude the trial court erred in factually finding at the demurrer stage that the letters are absolutely privileged. However, since "it is the validity of the court's action in sustaining the demurrer which is reviewable and not the court's statement of reasons for its action" (Franchise Tax Board v. Firestone Tire & Rubber Co. (1978) 87 Cal.App.3d 878, 883, 151 Cal.Rptr. 460), we examine each cause of action to determine whether there are any other grounds for sustaining demurrers without leave to amend.
The privilege of section 47, subdivision 2, extends to a publication "(1) made in a judicial proceeding; (2) with a connection or logical relation to the action; (3) made to (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 389, 182 Cal.Rptr. 438.) The "purpose of section 47 is to afford litigants freedom of access to the courts to secure and defend their rights without fear of being harassed by actions for defamation [citations], and to promote the unfettered administration of justice even though as an incidental result it may in some instances provide an immunity to the evil-disposed and malignant slanderer [citations]." (Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d at p. 823, 106 Cal.Rptr. 718, italics omitted; Rosenfeld, Meyer & Susman v. Cohen (1983) 146 Cal.App.3d 200, 232, 194 Cal.Rptr. 180; ...
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