Green Acres Trust v. London

Decision Date15 June 1984
Docket NumberNo. 16686-PR,16686-PR
Citation688 P.2d 617,141 Ariz. 609
PartiesGREEN ACRES TRUST, an Arizona corporation, and Green Acres Memorial Gardens, Inc., an Arizona corporation, Plaintiffs-Appellants, v. May LONDON; Arthur W. Yoder; Cecil M. Yoder; Michael J. Valder and Jane Doe Valder, husband and wife; Harry E. Craig and Jane Doe Craig, husband and wife; David J. Rich and Jane Doe Rich, husband and wife; and Douglas G. Martin, Defendants-Appellees.
CourtArizona Supreme Court

Gorodezky, Marron & Diamond by John B. Marron, Phoenix, for plaintiffs-appellants.

Goldstein & Kingsley, Ltd. by Philip T. Goldstein, Pamela L. Kingsley, and Martori, Meyer, Hendricks & Victor by Ron Kilgard, Phoenix, for defendants-appellees.

HOLOHAN, Chief Justice.

Appellants Green Acres Trust and Green Acres Memorial Gardens, Inc. ("Green Acres") brought a defamation action against all of the appellees based on oral and written statements published by the appellees during a "press conference" preliminary to the initiation of a class action against Green Acres. The appellees May London, Arthur W. Yoder and Cecil M. Yoder are representative members of the class of plaintiffs in the action filed against Green Acres. Appellees Michael J. Valder, Harry E. Craig, David J. Rich and Douglas G. Martin ("lawyer defendants") are the lawyers for the plaintiffs in that action. The trial court entered summary judgment in favor of all of the appellees, and the Court of Appeals affirmed. Green Acres Trust v. London, 142 Ariz. 12, 688 P.2d 658 (App.1983).

Green Acres petitioned for review of the Court of Appeals' decision. We granted review to resolve issues concerning the extent and nature of the privilege enjoyed by attorneys in communications about litigation. We are satisfied with the resolution made by the Court of Appeals as to the non-lawyer appellee defendants, and we approve that portion of the opinion of the Court of Appeals. The remainder of the opinion concerning the liability of the lawyer defendants is vacated.

Considering the facts and inferences drawn from facts in a light favorable to Green Acres against whom summary judgment was entered, Antwerp Diamond Exchange of America, Inc. v. Better Business Bureau of Maricopa County, Inc., 130 Ariz. 523, 637 P.2d 733 (1981), the following facts are relevant to our review of the case.

On Friday, March 5, 1976, the lawyer defendants met to review a draft of a class action complaint to be filed against Green Acres which challenged the particular sales technique employed by Green Acres to sell its "pre-paid funerals." See People ex rel Babbitt v. Green Acres Trust, 127 Ariz. 160, 618 P.2d 1086 (App.1980). Appellee May London, one of the elderly class action clients, also attended the meeting. Sometime during the meeting, Edythe Jensen, a reporter for the Phoenix Gazette newspaper, arrived at the law offices where the meeting was held. One of the lawyer defendants had invited Ms. Jensen to the offices to learn about the basis for the class action. Ms. Jensen received a copy of the drafted complaint and discussed the case with at least one of the lawyer defendants.

Based in part on information obtained from a draft of the complaint and conversations held with the lawyer defendants, Ms. Jensen wrote an article describing the grounds of the class action suit. She quoted the clients and lawyer defendants, and unfavorably characterized the manner in which Green Acres marketed their "pre-paid funerals." The Gazette published the article on the following Monday, March 8, 1976, the same day the lawyer defendants filed the class action complaint.

In due course, Green Acres sued the class action clients and lawyer defendants for defamation based on communications made by the lawyer defendants to Ms. Jensen. Green Acres did not, however, name Ms. Jensen nor her employer as party defendants. Green Acres' complaint alleged that the clients authorized, and the lawyer defendants published, the following statements by providing a copy of the drafted complaint and through conversations with Ms. Jensen:

1. That the State Attorney General's office had been investigating the Plaintiffs [Green Acres] for the purpose of filing criminal charges against them in the areas of security [sic] violations and fraud.

2. That the Plaintiffs [Green Acres] had "bilked" up to five thousand people.

3. That the Plaintiffs [Green Acres] had deliberately violated state laws.

4. The Plaintiffs [Green Acres] had "intentionally inflicted emotional distress on its victims."

The trial court entered summary judgment in favor of the defendants. The Court of Appeals affirmed, finding that both an absolute and a qualified privilege to defame protected the lawyer defendants and supported the entry of summary judgment. The court reasoned that the primary requirement for the absolute privilege was pertinence of the communication's content to the proposed or pending judicial proceeding. The court found such pertinence in the oral statements and the written statements contained in the drafted complaint. Finally, the court found a qualified privilege to defame "because the information affected an important interest of the newspaper reporter, i.e., investigating and reporting purported fraudulent business practices, and the comments were made in response to the reporter's request for information." 142 Ariz. 12, 688 P.2d 658.

We consider two issues raised by the petition:

(1) Were the statements made by the attorney-defendants to the newspaper reporter protected from liability by a privilege?

(2) If so, was the privilege absolute or conditional?

ABSOLUTE PRIVILEGE

As a defense to an action for defamation, the law recognizes that "conduct which otherwise would be actionable is to escape liability because the defendant is acting in furtherance of some interest of social importance, which is entitled to protection even at the expense of uncompensated harm to the plaintiff's reputation." Prosser, Law of Torts (4th ed. 1971) § 114, p. 776 (footnote omitted). This protection from liability is described as "privilege." There are two classes of privileges, "absolute" and "qualified." The absolute privileges created by law are based upon the recognition that certain persons, because of their special position or status, should be as free as possible from fear that their actions in that position might have an adverse effect upon their own personal interest. Restatement (Second) of Torts, Chapter 25 Topic 2, Title B, "Absolute Privilege Irrespective of Consent," pp. 242-43. Qualified privileges are limited to particular occasions requiring the exchange of information reasonably thought to be true. Id.

In the area of absolute privileges one of the most common is that involving the participant in judicial proceedings. The socially important interests promoted by the absolute privilege in this area include the fearless prosecution and defense of claims which leads to complete exposure of pertinent information for a tribunal's disposition. Prosser, Law of Torts (4th ed. 1971) § 114 p. 777-81. The privilege protects judges, parties, lawyers, witnesses and jurors. The defense is absolute in that the speaker's motive, purpose or reasonableness in uttering a false statement do not affect the defense. Id. Whether the privilege exists is a question of law for the court, Restatement (Second) of Torts, § 619, and may be properly raised in a motion to dismiss, if the facts establishing the occasion for the privilege appear in the pleadings, Sierra Madre Development, Inc. v. Via Entrada Townhouses Assn., 20 Ariz.App. 550, 514 P.2d 503 (1973), or in a motion for summary judgment. See Drummond v. Stahl, 127 Ariz. 122, 618 P.2d 616 (App.1980), cert. denied, 450 U.S. 967, 101 S.Ct. 1484, 67 L.Ed.2d 616 (1981).

In various settings, Arizona courts have applied the absolute privilege to defame in connection with judicial proceedings. See Bailey v. Superior Court, 130 Ariz. 366, 636 P.2d 144 (App.1981) (statements contained in complaint filed with Commission on Judicial Qualifications); Drummond v. Stahl, supra, (statements contained in motion filed to compel withdrawal of counsel and complaint filed with State Bar of Arizona); Sierra Madre Development, Inc. v. Via Entrada Townhouses Assn., supra (statement contained in complaint filed); Todd v. Cox, 20 Ariz.App. 347, 512 P.2d 1234 (1973) (statements contained in affidavit attached to motion filed for new trial); Stewart v. Fahey, 14 Ariz.App. 149, 481 P.2d 519 (1971) (statements contained in filed lis pendens, in context of slander of title action). In order to fall within the privilege, the defamatory publication must relate to, bear on or be connected with the proceeding. Bailey v. Superior Court, supra, 130 Ariz. at 368, 636 P.2d at 146; Drummond v. Stahl, supra, 127 Ariz. at 125, 618 P.2d at 619. The defamatory content of the communication need not be "strictly relevant," but need only have "some reference to the subject matter of the proposed or pending litigation...." Restatement (Second) of Torts § 586, Comment c.

An attorney's absolute privilege to defame in connection with a judicial proceeding is addressed by Restatement (Second) of Torts § 586, which provides:

"An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding."

An attorney is protected by the absolute privilege because "[t]o subject him to actions for defamation would fetter and restrain him in the fearless discharge of the duty which he owes to his client, and which the successful administration of justice demands." Veeder, Absolute Immunity In Defamation: Judicial Proceedings, 9 Col.L.Rev. 463, 482 (1909). As an immunity 1 which...

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