Institute of Athletic Motivation v. University of Illinois

• Decision Date: 29 December 1980
• Citation: 170 Cal.Rptr. 411,114 Cal.App.3d 1
• Parties: The INSTITUTE OF ATHLETIC MOTIVATION, a California Corporation, Plaintiff and Appellant, v. The UNIVERSITY OF ILLINOIS, a nonprofit corporation et al., Defendants and Respondents. Civ. 45057.
• Court: California Court of Appeals Court of Appeals

Page 411

170 Cal.Rptr. 411

114 Cal.App.3d 1

The INSTITUTE OF ATHLETIC MOTIVATION, a California Corporation, Plaintiff and Appellant, v. The UNIVERSITY OF ILLINOIS, a nonprofit corporation et al., Defendants and Respondents.

Civ. 45057.

Court of Appeal, First District, Division 1, California.

Dec. 29, 1980.

Hearing Denied February 25, 1981.

Beauzay, Hammer, Ezgar, Bledsoe & Rucka, W. Robert Morgan, Morgan, Zazueta, Morgan, Towery, Morgan & Spector, San Jose, for plaintiff and appellant.

Ropers, Majeski, Kohn, Bentley & Wagner, Michael J. Brady, Mark G. Bonino, Redwood City, for defendants and respondents.

GRODIN, Associate Justice.

In this action for defamation the jury returned a general verdict for defendants and plaintiff appeals, asserting instructional error. The principal issue presented concerns the scope of privilege for communication to interested persons under Civil Code section 47, subdivision 3. Finding no error warranting reversal, we affirm.

Plaintiff Institute of Athletic Motivation is a corporation founded in the late 1960's by two clinical psychologists, Bruce Ogilvie and Thomas Tutko, to develop and market what they termed an "Athletic Motivation Inventory" (AMI). The AMI, in the form of a questionnaire, is administered to coaches and athletes and purports to identify certain personality traits predictive of athletic success. It was the first "sports-specific" psychological test to be developed, and has been widely used by high schools, colleges, and private and professional athletic organizations.

Defendant Rainer Martens is a professor of physical education at the University of Illinois with a Ph.D. in sports psychology. He has himself published extensively on the subject of sports psychology and scientific research methodology. On January 10, 1975, Professor Martens wrote a four-page letter critical of the AMI which he sent to numerous professional athletic organizations and to several sports magazines. The letter asserted, among other things, that while Ogilvie and Tutko "frequently claimed to have supportive evidence" for the AMI, "surprisingly they have been unwilling or unable to provide any evidence that AMI ... is reliable or valid." To offer on a commercial basis a psychological test that does not have "extensive public documentation of its reliability and validity" is, the letter claimed, an "unethical practice" according to standards of the American Psychological Association; and "(t)o infer a cause and effect relationship on the basis of correlational evidence" was "an error only the novice graduate student would make." Use of the AMI by coaches was asserted to be a matter of concern "because incorrect diagnoses and prognoses may be detrimental to the athlete and coach," and "because Ogilvie and Tutko have failed to adhere to scientific protocol and ethical behavior for psychologists," leading coaches and athletes to be "deceived under the auspices (sic ) that scientific evidence provides the basis for their diagnoses and prognoses." The letter called upon "the various sport organizations who directly work with coaches and athletes (to) initiate action to expose the AMI" by "inform(ing) their constituents of the potential harm that can result from unproven psychological testing. If nothing else, it is an unjustified expense."

One of the organizational recipients of the letter, the National Basketball Coaches Association, republished the letter in its periodical, "Basketball Bulletin," which is sent to basketball coaches throughout the United States. So far as appears from the record, none of the other recipients republished or made public use of its contents.

Plaintiff sued both Martens and the University of Illinois (the latter on a theory of respondeat superior), claiming that the letter contained false and defamatory statements. At trial, plaintiff sought to establish that studies confirming the reliability and validity of the AMI did in fact exist, the Martens knew or should have known of their existence at the time he sent the letter, and that Martens ignored evidence of their existence which plaintiff sent him in an effort to obtain retraction. Plaintiff also sought to convince the jury that Martens acted with ulterior or selfish motives in sending the letter, and in that regard introduced evidence to show that in the same month he sent the letter he published a book on the subject of sports psychology, and two years later published his own, competing, sports inventory test. Martens, on the other hand, claimed that he reached his conclusion as to the unreliability of the AMI only after extensive research, consultation with other experts, and unproductive requests for information from persons connected with plaintiff; and that his sole motivation in writing the letter was to inform "interested" parties about the unreliability of the AMI and its potential for abuse.

At the conclusion of trial, the court ruled that the letter was defamatory as a matter of law "in that it has a tendency to affect the integrity and business reputation of the plaintiff," ¹ and that the University of Illinois was responsible for its publication through ratification. Accordingly, the case went to the jury on the defenses, asserted by both defendants, of truth and privilege.

On the issue of privilege, defendant submitted various instructions based upon Civil Code section 47, subdivision 3 and the case law under that section. ² Initially, plaintiff proposed a supplementary instruction to the effect that "(a) common interest in the subject matter must be demonstrated between the person communicating and the person reading the communication before this privilege is established." Later, however, plaintiff withdrew all requests for instructions relating to privilege, contending that the defense of privilege "does not exist in a situation like this." The trial court nevertheless gave the instructions on privilege proposed by defendants, with certain modifications, and it is these instructions which constitute the principal focus of plaintiff's appellate attack. ³ Jury instructions regarding the existence of a qualified privilege, plaintiff argues, should have been refused as a matter of law.

DISCUSSION

Civil Code section 47, subdivision 3 provides that a publication or broadcast is privileged if made: "In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information."

The code affords no definition of the term "interested" and the case law reflects an eclectic approach to its interpretation. One of the earliest cases is Snively v. Record Publishing Co. (1921) 185 Cal. 565, 198 P. 1, involving the publication in a newspaper of a cartoon which imputed dishonesty to the Los Angeles Police Chief. The court held that the citizens of Los Angeles were "interested" within the meaning of section 47, subdivision 3, and that the newspaper's relation to the citizens was such as to afford "a reasonable ground for supposing the motive for the communication innocent," not because the publication was made in a newspaper but because "the official conduct of public officers, especially in a government by the people, is a matter of public concern of which every citizen may speak in good faith and without malice." (185 Cal. at p. 571, 198 P. 1. See also Maher v. Devlin (1928) 203 Cal. 270, 281-284, 263 P. 812, cf. Stevens v. Storke (1923) 191 Cal. 329, 216 P. 371.)

In Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146, 143 P.2d 20, the Supreme Court had occasion to consider section 47, subdivision 3 in the context of an allegedly false and defamatory publication concerning an employer involved in a labor dispute with a union, and appearing in the Stockton Labor Journal, a weekly newspaper devoted to the interests of organized labor. The court concluded, without extensive discussion, that "since the comment was published in a newspaper devoted exclusively to the interests of organized labor, its publication was conditionally privileged." (Id., at p. 161, 143 P.2d 20.)

Five years later, the court in Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 197 P.2d 713, confronted a suit brought by two members of a church against the pastor and two of its lay leaders who, plaintiffs contended, were responsible for defamatory and false statements contained in charges brought against them before the church membership. The plaintiffs were expelled on the basis of the charges, and a press release reporting the action of the church was given the local press. On the question of privilege, the court stated: "Ordinarily, the common interest of the members of a church in church matters is sufficient to give rise to a qualified privilege to communications between members on subjects relating to the church's interest. (Citations.) A privilege would exist in this case if the publication had been made without malice and the occasion had not been abused." (Id., at pp. 796-797, 197 P.2d 713.)

In Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 7 Cal.Rptr. 617, 355 P.2d 265, the court held that an editorial published in a newspaper principally directed to the Jewish community in Los Angeles, and containing defamatory statements about a prominent member of that community in relation to the Jewish observances, was conditionally privileged within section 47, subdivision 3. The court observed: "Although the editorial is libelous per se, the defendants properly contend that the complaint itself reveals the existence of the defense of 'fair comment.' 'It is not only the privilege but the duty of every citizen and every newspaper in the community to fairly and impartially criticize the faults and misconduct of public officers, ...' (Citation....