Good Government Group of Seal Beach, Inc. v. Superior Court

• Decision Date: 27 November 1978
• Parties: , 586 P.2d 572, 4 Media L. Rep. 2082 GOOD GOVERNMENT GROUP OF SEAL BEACH, INC., et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; Thomas R. HOGARD, Real Party in Interest. L.A. 30839.
• Court: California Supreme Court

Page 258

150 Cal.Rptr. 258

22 Cal.3d 672, 586 P.2d 572, 4 Media L. Rep. 2082

GOOD GOVERNMENT GROUP OF SEAL BEACH, INC., et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent Thomas R. HOGARD, Real Party in Interest.

L.A. 30839.

Supreme Court of California.

Nov. 27, 1978.

Rehearing Denied Dec. 27, 1978.

[586 P.2d 573] Richards, Watson, Dreyfuss & Gershon, Glenn R. Watson, Mitchell E. Abbott, Gary L. Gillig, Los Angeles, and Robert H. Powsner, Beverly Hills, for petitioners

Jacque Boyle, Los Angeles, for real party in interest.

MOSK, Justice.

The trial court denied defendants' motion for summary judgment in an action for libel, and they seek a writ of mandate to compel the court to grant the motion.

At the time the allegedly libelous publication appeared, Thomas A. Hogard, real party in interest, was a councilman in the City of Seal Beach. The article was written by the vice president of a citizens' organization known as the Good Government Group of Seal Beach, Inc. (Good Government), published in a local homeowners' association newsletter in February 1971, and was also distributed to the general public as a flyer. It stated that Hogard and two other city councilmen, Fuhrman and Baum, referred to as "the combine," had "extorted by blackmail" $100,000 from a development company. Hogard, charging the article was libelous, named the author of the article, the association, Good Government, and various others as defendants in his complaint.

At the time of publication, the municipality was in the throes of political turmoil and strife that was likely to ulcerate the most tranquil dispositions. Hogard served as a councilman from July 1970 until he was recalled in August 1971. In the months preceding publication, the city manager and city attorney had been discharged, recall petitions had been filed against Fuhrman, and notices of intention to circulate recall petitions against Hogard and Baum had been filed. The majority of the council refused to authorize the recall election of Fuhrman, and a mandate proceeding was instituted to compel it to do so. The council engaged an attorney to investigate the recall campaign, but the city treasurer refused to pay the attorney's fees, and the council majority sought to file charges with the grand jury against the treasurer. One member of the council resigned, and a notice of recall was filed against the city clerk.

On October 30, 1970, the city revoked building permits previously issued to R & B Development Co. to construct an apartment project, on the ground that the permits were issued in error, were based upon incorrect information, and violated city ordinances. The city council enacted an ordinance imposing a temporary moratorium on construction in the area of the development pending completion of an environmental study, giving as its reasons that the project had not been properly investigated and no consideration had been given to its effect upon the environment. The developer filed At a public meeting following the executive session, Baum announced the terms of the settlement and Holden stated, "I don't like the idea of using a hatchet on people after you have made an agreement but I'll vote for the matter in order to get the work started and stop the harassment." No changes in the building plans were made and no environmental studies were conducted between the time the permits were revoked and their reinstatement pursuant to the agreement. As part of the settlement, the developer agreed to rent the apartments to married couples as well as single persons. ¹

suit against the city. On November 23, in an executive session of the city council held to discuss the lawsuit, Hogard, Fuhrman and Baum proposed that if the developer would agree to dismiss the suit and to pay the city $100,000, it should be permitted to proceed with its project in accordance with the plans previously filed. At [22 Cal.3d 678] that time Holden, a member of the city council, characterized this proposal as "outright extortion" and "blackmail."

The article at issue charged Hogard, Fuhrman and Baum with "chicanery and machinations" with respect to their conduct in the recall of Fuhrman, described their conduct as "recalcitrant," and warned that they would pay for their "infamy."

The most damaging references to Hogard were contained in the following paragraph: "This is the same combine which extorted by blackmail $100,000 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."

Hogard filed suit, charging that the statements in the article were false, that defendants knew they were untrue or acted with reckless disregard of whether or not they were false, that they intended the statements to be understood by the public as charging him with crime, and that the public so understood them. He alleged that as a result of the charges contained in the article, he was unable to find employment, was defeated in the recall election, and suffered nervous shock and strain. The complaint sought general damages in the amount of $500,000, special damages of $31,000, and punitive damages of $500,000. ² Defendants moved for summary judgment, filing affidavits in support of their motion, setting forth the facts outlined above; Hogard filed counteraffidavits. As we have seen, the motion was denied by the trial court. ³ In this proceeding, defendants do not assert that Hogard has ever committed extortion or blackmail, nor do they deny that the statements are libelous if they are viewed as charging the commission of such crimes; rather, they contend, the statements referring to extortion and blackmail, when viewed in the context of the article as a whole and the tense political situation which existed in the city at the time the article was published, could not have been viewed by a reader as literally charging Hogard with crime, but amounted merely to sharp criticism of his conduct, using figurative language. Moreover, they contend, even if, by giving the words used in the article a "strained and unintended interpretation" they may be read as literally charging Hogard with the commission of crimes, nevertheless their motion for summary judgment should have been granted because the affidavits offered by Hogard in opposition to the motion failed to show that the statements were made with actual malice, as that term is defined in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.

We begin our analysis of these contentions with the decision in New York Times, which established the principles applicable to an action for libel brought by a public official. There, an elected official in Alabama alleged that he had been libeled by a newspaper advertisement which contained false statements regarding his official conduct. The Supreme Court reversed a judgment in his favor, holding that it violated the First and Fourteenth Amendments to the United States Constitution.

The court reasoned that the advertisement qualified for constitutional protection because it expressed a grievance regarding one of the major issues of the time, that erroneous statements are inevitable in free debate and must be protected if freedom of expression is to have "breathing space," and that neither factual error nor defamatory content removes criticism of the conduct of a public official from the protection of the Constitution. It concluded that a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice. That term was defined as knowledge by the defendant that the statement was false or reckless disregard of whether it was false.

In light of this holding, the two major issues which we must decide are whether the statements complained of constituted false statements of fact, and whether a sufficient showing of malice was made to justify the conclusion that the issue must be decided by a jury.

In Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 131 Cal.Rptr. 641, 552 P.2d 425, we discussed the difference between a statement of fact and a statement of opinion in an action for libel. There, the defendant corporation issued a bulletin in a labor dispute, stating that union officers were "apparently" willing to sacrifice the interests of the members of the union to further their personal ambitions.

We reasoned that "there is no such thing as a false idea" (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339, 94 S.Ct. 2997, 3007, 41 L.Ed.2d 789), and that an essential element of an action for libel is a false statement of fact. An allegedly defamatory statement may constitute a fact in one context but an opinion in another, depending upon the nature and content of the communication taken as a whole. "Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion." (17 Cal.3d at p. 601, 131 Cal.Rptr. at p. 644, 552 P.2d at p. 428.)

Our conclusion was that the charges were neither factual in nature nor calculated to induce the audience to which they were addressed to conclude that they were factual, that they did not impute crimes or dishonesty to plaintiffs, and that they were of In our analysis...