Grimes v. Carter

• Decision Date: 25 April 1966
• Citation: 50 Cal.Rptr. 808,19 A.L.R3d 1310,241 Cal.App.2d 694
• Court: California Court of Appeals Court of Appeals
• Parties: , 19 A.L.R.3d 1310 Betty GRIMES, Plaintiff and Appellant, v. Aubrey CARTER et al., Defendant and Respondent. Civ. 578.

Page 808

50 Cal.Rptr. 808

241 Cal.App.2d 694, 19 A.L.R.3d 1310

Betty GRIMES, Plaintiff and Appellant, v. Aubrey CARTER et al., Defendant and Respondent.

Civ. 578.

District Court of Appeal, Fifth District California.

April 25, 1966.

Hearing Denied June 22, 1966.

Granger & Moe and Lewis A. Moe, Delano, for appellant.

Frederic A. Jacobus, Visalia, for respondent.

CONLEY, Presiding Justice.

The question to be determined on this appeal is whether a plaintiff may escape the necessity of filing the undertaking required by section 830 of the Code of Civil Procedure in an action based on the classical elements of slander by claiming that the damages sought arise wholly from an invasion of plaintiff's privacy or because of her consequent emotional distress. The judgment of dismissal was preceded by an order sustaining a general demurrer to the amended complaint without leave to amend and granting a motion to dismiss because of a failure to post the required bond.

We have reached the conclusion that, in the circumstances shown by the record, it was essential that plaintiff file such an undertaking in the sum of $500, and that because of her failure to do so and her formal written statement that she would not, the trial court was correct in its ruling and its dismissal of the action.

The plaintiff, Betty Grimes, sets up her claim against the defendant in four causes of action. The amended pleading is entitled 'First Amended Complaint for Damages for Invasion of Privacy, Intentional Causing of Mental, Emotional and Physical Distress and Attempt to Influence Plaintiff from Continuing a Certain Court Action.' The trial judge correctly said that the entitlement was not a legitimate part of the pleading, and that the tenor and effect of the amended complaint must be deduced from its contents rather than from what counsel saw fit to call it.

In the first cause of action it is alleged that the plaintiff is a citizen living an ordinary private life in Delano, California; that the defendant is a private investigator; and that on or about April 15, 1964, without legal right, he told one Helen Penrod of Delano that:

'I have obtained written statements signed by two married men that they have had sexual intercourse with Betty Grimes. There are other men who have had sexual intercourse with her but they will not give me a statement.'

It is then averred that these assertions were made wilfully, maliciously and deliberately, that they were false and were known to be false when made, that the defendant expected that plaintiff would learn of the statements, and that he intended to inflict upon her sufficient embarrassment, humiliation and mental and emotional distress to cause her to abandon a then pending paternity action; that plaintiff subsequently learned the substance of the statements and the name of the person to whom they were made, and that the making of said statements caused her great mental pain, humiliation, mortification and embarrassment and has exposed her to grievous mental and physical suffering.

The second cause of action is the same in effect; however, it is alleged that the oral statements were made to one Bernice Harwood of Delano; she was told by the defendant that he had obtained written confessions from four married men, rather than two, admitting that each of them had had sexual relations with the plaintiff.

In the third cause of action it is alleged that the following oral communication was made by the defendant to one Ralph Forquera of Delano:

'I know all about Betty Grimes. If the Betty Grimes paternity suit goes to court Betty Grimes will be dragged through the mud. It will be messy. I have proof of several men who have been in the back seat of her car with her in the vineyards.'

The fourth cause of action blankets the allegations of the three preceding counts and avers that similar statements were made to from ten to twenty people in Delano or vicinity; that this course of conduct was intended by the defendant to inflict upon plaintiff sufficient embarrassment, humiliation, and mental and emotional distress to cause her to abandon her paternity action; that said charges were false and known by defendant to be false when made.

It should be noted that the complaint does not allege that embarrassment, humiliation, and emotional distress were caused by anything said or done by the defendant to, or in the immediate presence of, the plaintiff. On the contrary, each of the counts states a cause of action for oral defamation originally communicated by the defendant to people other than the plaintiff herself. Her emotional distress resulted from hearing of alleged untrue and slanderous statements which attacked her chastity. Thus, plaintiff's distress was secondary to the slanderous statements made about her to various people in Delano. We must assume, of course, in our ruling, that all of the allegations properly pleaded were true. (Hopper v. Hopper, 224 Cal.App.2d 446, 36 Cal.Rptr. 767.) Their truth or falsity would be a matter for determination by the finder of fact at a later trial.

Section 46 of the Civil Code provides in apposite terms as follows:

'Slander is a false and unprivileged publication, orally uttered, and * * * which:

'4. Imputes to (the plaintiff) * * * a want of chastity; * * *'

(See Hollman v. Brady, 233 F.2d 877, 16 Alaska 308; Mercado v. Hoefler, 190 Cal.App.2d 12, 18, 11 Cal.Rptr. 787.)

The defendant filed a demurrer to the original complaint and a motion to dismiss the action. On March 17, 1965, the trial judge sustained the demurrer without leave to amend and granted the motion to dismiss. However, after a sincere formal request of plaintiff's counsel for reconsideration supported by numerous authorities claimed to be in point, the court vacated the order and made a new ruling that the motion to dismiss be denied and the demurrer to the complaint sustained with ten days' leave to amend. A first amended complaint was thereupon filed, and a demurrer and notice of motion to dismiss the amended complaint were duly served and filed.

By order dated May 6, 1965, the court overruled the demurrer and gave the defendant 15 days to answer or further plead. The order continued:

'However, since the complaint is based on slander and plaintiff has not filed a bond as required by Section 830 of the Code of Civil Procedure, the first amended complaint will be dismissed unless plaintiff, within ten days after notice of this order, files the bond as required by the above section.'

Thereafter, plaintiff filed a 'Notice of Disclaimer and Request for Ruling,' saying:

'The Court is respectfully advised that plaintiff disclaims any claim or cause of action based on a legal theory of slander. Accordingly, plaintiff will not file a bond pursuant to CCP Sec. 830.

'Plaintiff's complaint has been and is submitted to the Court on the legal basis of (1) intentionally caused physical and emotional distress caused by outrageous language and (2) invasion or intrusion of plaintiff's privacy.

'It is therefore requested that the Court render an immediate ruling on the demurrer under consideration in view of the foregoing.'

The court, thereafter, changed the applicable rulings by making the following order leading to the judgment of dismissal:

'Demurrer is sustained without leave to amend. Motion to dismiss the action is granted.'

In passing, if it be thought that the court could not properly so change the rulings on the demurrer and motion to strike, it should be remembered:

'Like many other intermediate rulings prior to final judgment an order overruling or sustaining a demurrer is not res judicata, and the trial judge may reconsider it, decide that it was erroneous, and make a different order.' (2 Witkin, Cal.Procedure, Pleading, § 502, subd. (c), p. 1493.)

(See De La Beckwith v. Superior Court, 146 Cal. 496, 80 P. 717; Vertex Inv. Co. v. Schwabacher, 57 Cal.App.2d 406, 409, 134 P.2d 891; Kelly v. Liddicoat, 35 Cal.App.2d 559, 564, 96 P.2d 186; Timm v. McCartney, 9 Cal.App.2d 230, 232, 49 P.2d 315; People v. Risenhoover, 240 A.C.A. 242, 49 Cal.Rptr. 526).

The appellant contends that, entirely apart from any allegations establishing slander, the complaint shows an illegal invasion of the privacy of the plaintiff. (Bowden v. Spiegel, Inc., 96 Cal.App.2d 793, 216 P.2d 571; Norris v. Moskin Stores, Inc., 272 Ala. 174, 132 So.2d 321.) Whatever may be the ruling in other jurisdictions, California adheres to the proposition that the right of privacy may not be violated by word of month only. In the recent case of Gautier v. General Telephone Co., 234 Cal.App.2d 302, 44 Cal.Rptr. 404, an appeal was taken from a judgment of dismissal after a demurrer was sustained without leave to amend. One of the several causes of action which the plaintiffs attempted to state was predicated upon the theory of invasion of the right of privacy; at page 309, 44 Cal.Rptr. at page 408 of the opinion, the reviewing court thus disposed of that cause of action:

'Count VII charges an invasion of plaintiffs' right of privacy. The above right was invaded, according to the pleading, when defendant told certain unidentified persons that plaintiffs' phone was disconnected and such persons reasonably believed that plaintiffs had not paid their telephone bill. We need only refer to the landmark case in California, Melvin v. Reid, 112 Cal.App. 285, 297 P. 91, for our conclusion that the above facts (if true) did not constitute a commission of the tort. In Melvin v. Reid, it is declared that 'The right of privacy can only be violated by printings, writings, pictures, or other permanent publications or reproductions, and not By word of mouth.' (Italics added; p. 290, 297 P. 91.)'

A hearing in the Gautier case having been denied by the Supreme Court, 'Its judgment stands, therefore, as a decision of a court of last resort in this state, until and unless disapproved by this court * * *.' (Cole v. Rush, 45 Cal.2d 345, 351, 289 P.2d...