Fuhrman v. Risner

• Citation: 155 Cal.Rptr. 122,92 Cal.App.3d 725
• Parties: Conway J. FUHRMAN, Plaintiff and Appellant, v. Lee RISNER et al., Defendants and Respondents. Civ. 50641.
• Decision Date: 03 May 1979
• Court: California Court of Appeals Court of Appeals

Page 122

155 Cal.Rptr. 122

92 Cal.App.3d 725

Conway J. FUHRMAN, Plaintiff and Appellant, v. Lee RISNER et al., Defendants and Respondents.

Civ. 50641.

Court of Appeal, Second District, Division 4, California.

May 3, 1979.

Hearing Denied June 27, 1979.

Jacque Boyle, Los Angeles, for plaintiff and appellant.

Brill, Hunt, Debuys & Burby and Michael T. Fox, Los Angeles, for defendants and respondents Frank B. Sales and Joanne Sales.

Demetriou & Del Guercio and Richard A. Del Guercio, Los Angeles, for defendant and respondent Albert Del Guercio.

Richards, Watson, Dreyfuss & Gershon and Glenn R. Watson, Mitchell E. Abbott

and Gary L. Gillig, Los Angeles, for the remaining defendants and respondents.

JEFFERSON, Associate Justice.

This is an action for libel. Plaintiff Conway J. Fuhrman, a former city councilman of Seal Beach, sought damages by a second amended and supplemental complaint which alleged the loss of his good name and reputation. Defendants were Good Government Group of Seal Beach, College Park Homeowners Association of Seal Beach, and many named individual citizens of Seal Beach. Plaintiff also alleged a cause of action for conspiracy, and sought special damages of $10,000 minimum, general damages of $500,000 and $500,000 as exemplary damages.

Various defendants made motions for summary judgment. Three different motions were granted with judgments rendered and entered accordingly. Plaintiff filed two notices of appeal from these judgments, and, since the same issues were involved in both appeals, they have been consolidated for review here. ¹

During the progression of this litigation, and while these appeals were pending, another similarly situated former city councilman, Hogard, seeking damages for the same claimed defamation, had successfully opposed defendants' motions for summary judgment at the trial level. The Hogard defendants petitioned for a writ of mandate to compel the entry of summary judgment in that case. The California Supreme Court agreed to review the matter and rendered its decision on November 27, 1978, in the case of Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 150 Cal.Rptr. 258, 586 P.2d 572. The court held that summary judgment had properly been denied below, as triable issues of fact did exist; the peremptory writ of mandate was accordingly denied. ²

The case at bench derives from the same facts, involves many of the same defendants, and raises essentially the same legal issues resolved by the Supreme Court in the Hogard litigation. Since that is the situation, our factual summary, discussion and disposition of these appeals will be brief.

I The Factual Background

The record reveals that this litigation arose during the course of intense political warfare which embroiled the City of Seal Beach during the years 1970 and 1971.

In 1970, plaintiff Fuhrman was a city councilman, serving on a five-man council which included the mayor. During his tenure, which ended in March 1971, with his recall from office, he participated in a series of decisions by voting with two other councilmen, Baum and Hogard; these actions enraged certain members of two civic groups named in the complaint and referred to here as Good Government and College Park Homeowners, and possibly others. Within a short period of time, both the city manager and the city attorney had been fired, an attempt to recall plaintiff Fuhrman had been stymied temporarily at least and the dispute over recall and other matters expanded to include the city treasurer and the city clerk with involvement of the grand jury and the superior court.

The events which led to the assertedly defamatory publication upon which this lawsuit is based occurred in October and November of 1970. Prior to October 30, 1970, the city had issued building permits to R & B Development Company, which planned to build in the city some apartments for "swinging singles." However, on October 30, 1970, the city council majority, of which plaintiff Fuhrman was a member, revoked these permits and enacted a moratorium-on-building ordinance, which temporarily suspended construction activities at the proposed project site, for the expressed purpose of obtaining an environmental impact study.

R & B Development filed a lawsuit against the city. On November 23, 1970, at an executive session of the city council, councilmen Baum, Hogard and plaintiff Fuhrman declared that the dispute with the developer could be settled by payment to the city of an $100,000 "environmental tax" by the developer, and by termination of the pending litigation. The developer agreed to this, and also agreed to welcome married couples as well as single persons to the apartment complex. One of the councilmen who was not a member of the majority, Holden, expressed the view that these maneuvers amounted to "outright extortion" and "blackmail," but the majority prevailed and announced the terms of the transaction at a public meeting.

In February 1971, an article appeared in the College Park Homeowners newsletter, denouncing Baum, Hogard and Fuhrman. The article had been written by an officer of the Good Government group, and was widely distributed as a flyer throughout the community, even after a retraction of the article was published in early March 1971, in a March newsletter that announced a March 10, 1971 meeting. The article was severely critical of the councilmen, speaking of their "chicanery and machinations," and describing their conduct as "infamy."

The most offensive language, however, referred to the councilmen, including plaintiff Fuhrman, as members of "the same combine which extorted by blackmail $100,000.00 from the R & B Development Company. For its thirty pieces of silver the combine agreed to forgo its concern for the City's ecology, pollution and strain on our sanitation system that Baum had so sanctimoniously raised during his campaign and in City Council meetings. For economical reasons the R & B Development Company submitted to the 'holdup' and agreed to drop its multi-million dollar suit against the City so that it could begin the construction of apartment buildings in the downtown section of the City."

Another member of the Seal Beach City Council, Gummere, resigned and the recall election of plaintiff Fuhrman was scheduled for March 30, 1971. As indicated, in early March 1971, a retraction appeared in the College Park Homeowners newsletter concerning the charges contained in the edition of the previous month. However, before the recall election, plaintiff filed this action for libel, alleging that, prior to the publication of the February newsletter he had been a city councilman who enjoyed a good reputation in the community of Seal Beach; that the retraction was not complete; that after the publication he had lost his good reputation, and had sustained damages thereby.

Subsequent amendments to the complaint alleged that plaintiff had indeed been recalled by the electorate at the recall election of March 30, 1971; that he had been ostracized publicly and privately in the community, and had been unable to find employment in the area. The discovery proceedings which followed did not disclose any critical factual discrepancies but narrowed the issues to a determination of whether plaintiff had stated sufficient facts to present the matter to a jury despite the protected position afforded to citizens engaging in public expressions critical of a public official by the First Amendment to the United States Constitution and relied upon by the defendants. As indicated previously, the trial court granted summary judgments to defendants in reliance upon recognition of First Amendment rights as expressed in the leading case of New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and its progeny.

II Triable Issues in Summary Judgment Proceeding in a Libel Action

At issue on these appeals is whether the trial court properly determined that no triable issues existed in the case. Such determination necessarily involved a finding that the published language was not libelous as a matter of law. The purpose of summary judgment proceedings and the principles which apply when such a judgment is sought have become well established in the decisional law and no detailed exposition is required here. (See Code Civ.Proc., § 437c; Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310; DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698, 133 Cal.Rptr. 920.) Summary judgment is regarded as a drastic remedy, disposing as it does of litigation without trial, and may only be invoked when it appears clearly that no triable issues exist. In keeping with this consideration, the affidavits and declarations of the moving party are strictly construed and those of the opponent in this case, plaintiff Fuhrman are afforded liberal construction.

We note also, however, that since libel actions, particularly those brought by public officials as the result of assertedly defamatory comment on their official conduct, involve the exercise of First Amendment rights, "speedy resolution of cases involving free speech is desirable. (Citation.) Therefore, summary judgment is a favored remedy, and upon such a motion the trial court must determine whether there is a sufficient showing of malice to warrant submission of that issue to the jury." (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 264, 586 P.2d 572, 578.)

In the case at bench, we have examined the declarations and counter-declarations filed in the trial court, and have concluded that the trial court's determination must be assessed in light of the reasoning of the majority in the Good Government case, as we are compelled to follow it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) We briefly analyze that opinion. In Good Government, the...