Kaufman v. Fidelity Fed. Sav. & Loan Assn.

• Decision Date: 16 March 1983
• Citation: 140 Cal.App.3d 913,189 Cal.Rptr. 818
• Court: California Court of Appeals Court of Appeals
• Parties: H.R. KAUFMAN, Plaintiff and Appellant, v. FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION etc., et al., Defendants and Respondents. Civ. 27935.

Page 818

189 Cal.Rptr. 818

140 Cal.App.3d 913

H.R. KAUFMAN, Plaintiff and Appellant, v. FIDELITY FEDERAL SAVINGS AND LOAN ASSOCIATION etc., et al., Defendants and Respondents.

Civ. 27935.

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

March 16, 1983.

[140 Cal.App.3d 915] Goldie Law Corp., Ron R. Goldie, Los Angeles, and Richard A. Granowitz, Fountain Valley, for plaintiff and appellant.

Leff & Stephenson, Beverly Hills, Andrew E. Katz and Steven G. Polard, Los Angeles, for defendants and respondents.

OPINION

RICKLES, Associate Justice.

Plaintiff appeals from a summary judgment against him in an action for libel based on a letter written by defendants during the course of a zoning dispute.

FACTS

Blue Jay Village, perched in the San Bernardino mountains, was the setting for this libel action. Defendant Fidelity Federal Savings and Loan Association felt the need to expand in order to better serve this community. A dispute arose as to whether such expansion was in the best interests of Blue Jay. During the course of hearings by the board of supervisors to determine the propriety of the expansion, Fidelity wrote the local residents seeking their support. Plaintiff H.R. Kaufman asserts he was defamed by this letter.

Fidelity has been a tenant of Kaufman's Blue Jay Village Corporation in the Village of Blue Jay for a number of years. Kaufman is the President of the Blue Jay Village Corporation which is the wholly owned subsidiary of Pioneer Take-Out Chicken Corporation. Kaufman is also the president and controlling stockholder of Pioneer Chicken.

Blue Jay Village was the only commercial property properly zoned for a savings and loan establishment. For a time the two savings and loans (Fidelity and Arrowhead Savings and Loan Association) have both been located in the village. Kaufman helped organize Arrowhead and is presently chairman of the board. Arrowhead leases and occupies a rather large free-standing building in Blue Jay Village.

In contrast, defendant Fidelity Federal Savings and Loan Association was leasing a significantly smaller space from the Blue Jay Village Corporation. During 1979 and prior thereto, defendant was negotiating for larger quarters with plaintiff's Blue Jay Village Corporation. These negotiations ultimately broke down and defendant purchased property adjacent to that owned by the Blue Jay Village Corporation. Defendant intended to construct a building to house its savings and loan on this property.

The property was not properly zoned for a professional building. In 1979, defendant commenced proceedings to have the property rezoned to allow it to carry out its plans for building.

These efforts were sporadically reported in the press until late 1980. After that time the dispute concerning Fidelity's plans came to a head. Community interest increased which resulted in more detailed press coverage. On September 18, 1980, the zone change was approved and reported in the Mountain News & Mountaineer and the Timberline Journal. These are both weekly newspapers of general circulation distributed in the Arrowhead and Blue Jay areas. The Mountain News on October 2, 1980, reported the zone change had been referred back to the planning commission based on improper notice of the hearing. The Timberline Journal published the same story on October 9, 1980. The zone change was approved on October 14, 1980, by the planning commission. This was reported in the Timberline Journal on October 16, 1980. These words appear in that article: "Frank Wilson, who filed the original appeal, did not appear, however, Ron Goldie, the attorney representing Pioneer Take-Out Corporation, owners of Blue Jay Village, did oppose the project." The approval of the zone change by the planning commission was also reported in the Mountain News on October 16, 1980. The article stated in part: "Tuesday's hearing brought opposition in the person of Ron Goldie, representing Blue Jay Village, a subsidiary of Pioneer Takeout, Inc., who contended that the Fidelity Federal plan would upset the overall plan for Blue Jay Village."

The controversy continued when the board of supervisors set a new hearing date (November 10, 1980); reported in the Mountain News on October 23, 1980. On October 30, 1980, the Mountain News carried this headline story on the front page: "FIDELITY ZONE CHANGE RUNS INTO MORE SNAGS." Contained within this article was the following: "[T]he objecting property owner failed to show up at the commission's rehearing hearing and the commission reaffirmed its previous actions. [p] However, Ron Goldie, representing Pioneer Chicken's Blue Jay Village corporation, did make an appearance to object to the project as out of phase with the master plan for the Blue Jay area and extending commercial zoning too far from the downtown area. [p] When the commission failed to heed his complaints and took its reaffirmation action, Goldie filed his own appeal to the board to 'reverse Planning commission action and return the matter to the commission to adopt planning department staff recommendations for denial of application.' " On October 30, 1980, the Timberline Journal carried the story of the resetting of Fidelity Savings and Loan's application for hearing on the zone change to November 10, 1980. These words appear in that article: "In an apparent attempt to block the zone change of the Lester Jacobsen property on North Bay Road, Ron Goldie of the Goldie Law Corporation, on behalf of Pioneer Take Out Corporation has filed an appeal before the San Bernardino County Board of Supervisors. [p] The rezoning would allow the transfer of the property to Fidelity Savings and Loan for construction of a new branch office in Blue Jay Village."

On November 6, 1980, the Timberline Journal, under the heading "Fidelity site stalled, again" published a story containing the following: "Monday, Attorney Ray Goldie, representing the Blue Jay Village consortium owned by H.R. (Rick) Kaufmann asked the supervisors to grant a continuance until the revised environmental impact review is made public and how it would affect the proposed zone change ... [p] One proponent of the zone change described the delaying tactics as being an attempt to monopolize the area. He said, 'The problem is that they (the corporate owners of Blue Jay) simply don't want any commercial enterprise competing with their commercial property.' " On November 13, 1980, Mountain News carried this story covering the continuance of the zoning change, stating: "... Ron Goldie, representing Blue Jay Village, Inc., filed a second appeal, having told the planners on Oct. 14 that the Fidelity Federal project is not in line with the overall plan for Blue Jay. He added that as a representative of Lake Arrowhead Property Owners association he objects because, he contended, the plan violates the CC and Rs for Arrowhead Woods.... [p] Also in attendance Monday was Frank Wilson, a neighboring property owner who filed the original appeal. He came from Los Angeles to tell the board that he no longer objects to the Fidelity Federal proposal. The firm's attorney, Walt Blackwell, was also in attendance."

Against this backdrop, defendant sent the following letter to the local residents:

"Dear Mr. and Mrs....

"Fidelity Federal Savings and Loan Association has served your community in the Blue Jay area since 1972. For several years we have attempted to relocate to larger quarters in Blue Jay in order to better serve our many valued customers. That attempt to relocate has been resisted at every turn by a controlling party of Blue Jay Village, who is a controlling party of Pioneer Chicken, and who is one of the organizers of Arrowhead Savings and Loan. He is able to do this because the only property properly zoned for a savings and loan is owned by Blue Jay Village.

"Our Association has now agreed to acquire a parcel located just north of Blue Jay Village on North Bay road. The proposed community plan would allow the construction of a new branch. However, the zoning must be changed.

"The man who controls Blue Jay Village has exerted a great deal of political pressure to convince the Supervisors to refuse the zoning change. If you would like Fidelity Federal to continue to do business in the Blue Jay area, this is your opportunity to make your feelings known.

"If you wish to allow one man to decide which savings and loan association you will be allowed to patronize in the Blue Jay area, disregard this letter. But, if his attempt makes you mad, sign the enclosed postcards and mail them to your Supervisors today.

"You must mail the postcards today to make your feelings known because the Supervisors have agreed to decide this matter on November 24, 1980.

"Hurry and mail the postcards.

"Very truly yours,

"[s] Walter L. Blackwell, III

"WALTER L. BLACKWELL, III

"Senior Vice President"

This letter was mailed on November 12, 1980.

Plaintiff instituted the present suit for libel based on this letter.

These facts are not contradicted by anything contained in plaintiff's affidavits in opposition to the motion for summary judgment.

The defendant filed a motion for summary judgment claiming the letter constituted opinion rather than fact as a matter of law. The court below granted the motion on two grounds: The statements were nonactionable opinions and conclusions of the defendant; the statements were nondefamatory as a matter of law.

DISCUSSION

Does the questioned letter contain opinion or fact? This is a matter of law and summary judgment is a favored remedy to resolve cases concerning First Amendment rights. The chilling effect of protracted litigation on the exercise of free speech requires speedy resolution. (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572.) "[T]he question of issue finding is to be determined by the sufficiency of the affidavits of the parties. [Citations.] Where on a motion for summary...