Kahn v. Bower

• Decision Date: 08 August 1991
• Docket Number: No. A046094,A046094
• Citation: 232 Cal.App.3d 1599,284 Cal.Rptr. 244
• Court: California Court of Appeals Court of Appeals
• Parties: , 19 Media L. Rep. 1236 Marilyn KAHN, Plaintiff, Appellant and Respondent, v. Rosemary BOWER, et al., Defendants, Respondents and Appellants.

Page 244

284 Cal.Rptr. 244

232 Cal.App.3d 1599, 19 Media L. Rep. 1236

Marilyn KAHN, Plaintiff, Appellant and Respondent, v. Rosemary BOWER, et al., Defendants, Respondents and Appellants.

No. A046094.

Court of Appeal, First District, Division 2, California.

Aug. 8, 1991.

As Modified on Denial of Rehearing

Sept. 6, 1991.

Review Denied Nov. 27, 1991.

Paige Wickland, Kadushin Fancher Wickland, San Francisco, for plaintiff, appellant and respondent Marilyn Kahn.

Joseph C. Howard, Jr., Deirdre A. O'Reilly, Branson, Fitzgerald & Howard, Redwood City, for defendants, respondents and appellants Rosemary Bower, et al.

KLINE, Presiding Justice.

The chief questions presented by this appeal are whether plaintiff, a publicly employed social worker, stated facts sufficient to constitute a cause of action in her complaint based upon an allegedly defamatory letter written by defendant to plaintiff's supervisor and whether plaintiff is a "public official" within the meaning of New York Times Co. v. Sullivan 1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. Plaintiff appeals from a judgment on the pleadings and defendants cross-appeal from the trial court's denial of attorneys fees. We will affirm the judgment in its entirety.

I.

On November 15, 1983, plaintiff, Marilyn Kahn, filed a complaint in propria persona purporting to state a single cause of action for libel against defendant Rosemary Bower and the West Coast Children's Center (WCCC), a private facility providing psychological testing and counseling for children, of which Ms. Bower was director. In April 1986, plaintiff filed her first amended complaint. The first cause of action was for libel, and alleged as follows: Plaintiff was employed as a Child Welfare Worker I with the Alameda County Social Services Agency. Defendant Bower and WCCC provide counseling and testing services for children. On November 16, 1982, Bower sent a letter to plaintiff's supervisor which stated, among other things, "there are children, very needy children, whose lives we feel are seriously being interfered with by the incompetence of the worker, Mrs. Marilyn Kahn who is the social worker we deal with in the Social Services Department." The letter also contained the following sentence: "This goes so far beyond incompetence that I almost wonder about some kind of hostility towards the child or toward handicapped children in general." As a result of the letter, plaintiff was terminated.

The second cause of action, for malicious prosecution, asserted that defendants conspired to cause the initiation of a proceeding within the Alameda County Social Services Agency for the purpose of securing plaintiff's dismissal; it was alleged that the accusations against plaintiff were ultimately determined to be unfounded in a post-termination civil service proceeding, with the result that she was reinstated. The third, fourth, fifth, and sixth causes of action charged, respectively, that the sending of the letter constituted intentional infliction of emotional distress, negligent infliction of emotional distress, simple negligence, and an intentional inducement to plaintiff's employer to breach plaintiff's employment contract. The third cause of action contained the further allegation that defendants' acts caused plaintiff to take an early retirement as of March 1985, ten years before she was scheduled to retire.

The letter, a copy of which was attached to the complaint, purported to describe several instances in which defendants had dealings with plaintiff. In the first instance, according to the letter, plaintiff met with Bower and a staff member of WCCC for three "very confusing" hours "trying to get straight exactly what she [plaintiff] wanted." Next plaintiff referred two children for testing; the children proved to be more severely "delayed" than plaintiff had indicated, and the attempt to prepare an evaluation was marked by "a tremendous amount of confusion and disruption," including confusing demands from plaintiff, failures by her to provide needed materials, particularly school records, and apparent misstatements by her to the children's foster mother about the nature of the evaluation, resulting in the foster mother's becoming angry, and apparently uncooperative, with WCCC. Next the letter recounted an episode in which a teenage girl from Alaska appeared to have been abruptly and inexplicably returned to that state by plaintiff rather than being permitted to move to Germany with her foster family, as WCCC had recommended following an evaluation. Finally the letter described a case in which defendant Bower had asked whether the child in question was a client of the regional center and plaintiff "didn't seem to understand what the Regional Centers did, nor had she thought about contacting the Regional Centers." ¹ The letter added Bower's "impression that [plaintiff] doesn't work at all or at least doesn't work well with the schools." Contrary to appellant's assertions to us, none of these statements were alleged in the complaint to be false or defamatory.

When the matter was called for trial, plaintiff expressly abandoned her claims for malicious prosecution and interference with contract, leaving only the claims for libel, infliction of emotional distress, and negligence. Without objection from either party, the trial court deemed defendants' trial brief to be a motion for judgment on the pleadings, which it granted on the ground that the statements complained of were nonactionable statements of opinion.

In their cost bill defendants claimed $34,404 in attorneys fees. The court entered judgment, disallowing attorneys fees. Plaintiff appealed. Defendants filed a notice of cross-appeal purporting to bring up for review two trial setting orders, the denial of a motion to dismiss for lack of prosecution, and the order taxing costs. We granted plaintiff's motion to dismiss the cross-appeal, except as to the portion challenging the denial of attorneys fees.

II.

The trial court granted judgment on the pleadings, which is of course the equivalent of sustaining a general demurrer. (Barker v. Hull (1987) 191 Cal.App.3d 221, 224, 236 Cal.Rptr. 285.) The central question, therefore, is whether the complaint states facts sufficient to constitute a cause of action. (6 Witkin, Cal.Procedure (3d ed. 1985) Proceedings Without Trial, § 262, p. 563.) We must accept the allegations of the complaint as true, but we may consider matters subject to judicial notice, including facts admitted by plaintiff on the record. (Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734, 64 Cal.Rptr. 481.) The question is whether those facts give rise to a cause of action in favor of the plaintiff.

III.

The stated basis for the trial court's entry of judgment was its conclusion that the challenged statements "are statements of opinion and not statements of fact and therefore do not constitute actionable libel."

At the time of the trial court's ruling it was accepted doctrine that the First Amendment to the United States Constitution precludes the imposition of defamation liability for "statements of opinion." (See Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 269, 228 Cal.Rptr. 206, 721 P.2d 87, cert. den. 479 U.S. 1032, 107 S.Ct. 880, 93 L.Ed.2d 834; Okun v. Superior Court (1981) 29 Cal.3d 442, 454, 459, 175 Cal.Rptr. 157, 629 P.2d 1369; Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 681, 150 Cal.Rptr. 258, 586 P.2d 572, cert. den. 441 U.S. 961, 99 S.Ct. 2406, 60 L.Ed.2d 1066; Gregory v. McDonnell-Douglas Corp. (1976) 17 Cal.3d 596, 600-601, 131 Cal.Rptr. 641, 552 P.2d 425; Hofmann Co. v. E.I. Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 397, 248 Cal.Rptr. 384 [trade libel]; Ault v. Hustler Magazine (9th Cir.1988) 860 F.2d 877, 880, cert. den. 489 U.S. 1080, 109 S.Ct. 1532, 103 L.Ed.2d 837; Lewis v. Time Inc. (9th Cir.1983) 710 F.2d 549, 553; Rest.2d, Torts (1977) § 566.)

This categorical exemption of opinions from the reach of defamation law rested on a passage from Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." (Fn. omitted.) In one of the seminal cases on this subject, the foregoing passage was quoted by the California Supreme Court, which went on to state that courts "apply the Constitution by carefully distinguishing between statements of opinion and fact, treating the one as constitutionally protected and imposing on the other civil liability for its abuse." (Gregory v. McDonnell-Douglas Corp., supra, 17 Cal.3d 596, 601, 131 Cal.Rptr. 641, 552 P.2d 425.)

The viability of this categorical "opinion rule" was considered in Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1. The court said that the above-quoted passage from Gertzwas not intended to create a "wholesale exemption for anything that might be labeled 'opinion.' " It described the categorical rule adopted by lower courts as a product of "mistaken reliance on the Gertz dictum." (Id., 497 U.S. at p. ----, 110 S.Ct. at p. 2706.) ²

At the same time, the Milkovich court reaffirmed earlier decisions holding that the First Amendment does not permit the imposition of liability for statements not conveying a false factual imputation. (See id., at pp. ---- - ----, 110 S.Ct. at pp. 2704-2706, citing Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 1541-1542, 26 L.Ed.2d 6; Letter Carriers v. Austin (1974) 418 U.S. 264, 284-286, 94 S.Ct. 2770, 2781-2782, 41 L.Ed.2d 745; Hustler Magazine v. Falwell (1988) 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41; Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 106 S.Ct....