LaMon v. Butler

• Decision Date: 31 July 1986
• Docket Number: No. 7520-2-II,7520-2-II
• Citation: 722 P.2d 1373,44 Wn.App. 654
• Court: Washington Court of Appeals
• Parties: , 13 Media L. Rep. 1495 Edward LaMON and Lorraine LaMon, husband and wife, Appellants, v. Betty BUTLER, and the Daily World, a corporation, Respondents.

Page 654

44 Wn.App. 654

722 P.2d 1373, 13 Media L. Rep. 1495

Edward LaMON and Lorraine LaMon, husband and wife, Appellants, v. Betty BUTLER, and the Daily World, a corporation, Respondents.

No. 7520-2-II.

Court of Appeals of Washington,

Division 2.

July 31, 1986.

Note: Opinion Superseded on Reconsideration by 770 P.2d 1027, 112 Wash.2d 193. Jack L. Burtch, Aberdeen, for appellants.

Curtis M. Janhunen, Charette, Brown, Edwards, Lewis & Janhunen, Aberdeen, for respondents.

REED, Judge.

Edward and Lorraine LaMon appeal the summary judgment dismissing their defamation action against The Daily World and its employee, Betty Butler. We affirm.

The LaMons filed an action for defamation on September 24, 1981 based upon the publication of an article on September 25, 1979 by The Daily World, a newspaper of general circulation in Grays Harbor County. The article discussed a Westport city council meeting during which a number of Westport citizens explored the possibility of community fund-raising to provide a bond to cover a judgment obtained by the LaMons against Westport police chief, John Regan. As background information, the article stated that "[t]he original lawsuit filed by the LaMons stemmed from a 1972 incident that resulted in a municipal court assault conviction of Mrs. LaMon." The "original lawsuit" referred to in the article was a federal court action against the police chief and against John Peterson, the complaining witness in an assault prosecution against the LaMons. The federal suit alleged false arrest, malicious prosecution, and a denial of equal protection arising from the chief's failure to provide adequate police protection for the LaMons' business. ¹ An earlier suit in superior court for false arrest and malicious prosecution against the same defendants was dismissed, and the dismissal was affirmed on appeal. The claims of false arrest and malicious prosecution derived from an incident at a restaurant then owned by the LaMons which resulted in the assault charges being filed against the LaMons. The municipal court dismissed the case against Mr. LaMon and found Mrs. LaMon guilty of misdemeanor assault. Mrs. LaMon appealed that judgment and, on appeal, the superior court dismissed the case with prejudice. The record before this court does not reveal the basis for the dismissal, except that it was by stipulation of the parties.

In their complaint for defamation, the LaMons alleged that The Daily World and Betty Butler, the author of the article, had defamed Mrs. LaMon by stating falsely that she had been convicted of assault in municipal court in 1972. The article made no reference to the fact that her assault conviction had been dismissed on appeal. In her affidavit, Mrs. LaMon states that Butler had the superior court order read to her over the telephone and that therefore she knew that the assault action had been dismissed with prejudice. Butler, however, states in her deposition that, although she knew the contents of the order of dismissal, she did not understand that the effect of the order was to void the conviction.

On December 1, 1983, Mr. LaMon filed an affidavit of prejudice against Judge Schumacher and Mrs. LaMon filed an affidavit of prejudice against Judge Kirkwood. Judge Schumacher and Judge Kirkwood were then the only superior court judges in Grays Harbor County. Judge Kirkwood did not disqualify himself. On that same day he issued his memorandum decision granting the defendants' motion for summary judgment.

A defamation plaintiff must show four essential elements: a defamatory and false statement, an unprivileged communication, fault, and damages. Bender v. Seattle, 99 Wash.2d 582, 599, 664 P.2d 492 (1983); Sims v. KIRO, Inc., 20 Wash.App. 229, 233, 580 P.2d 642, review denied, 91 Wash.2d 1007 (1978), cert. denied, 441 U.S. 945, 99 S.Ct. 2164, 60 L.Ed.2d 1047 (1979); Restatement (Second) of Torts § 558 (1977). A defamation plaintiff resisting a media defendant's motion for summary judgment must establish a prima facie case by evidence of convincing clarity. ² See Dunlap v. Wayne, 105 Wash.2d 529, 533-35, 716 [722 P.2d 1377] P.2d 842 (1986); Mark v. Seattle Times, 96 Wash.2d 473, 486-87, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed.2d 1339 (1982).

The initial question on summary judgment is whether the statement at issue is capable of a defamatory meaning. If the answer is in the affirmative, it is then the jury's function to determine whether the statement is in fact defamatory. Miller v. Argus Pub. Co., 79 Wash.2d 816, 820 n. 3, 490 P.2d 101 (1971); Amsbury v. Cowles Pub. Co., 76 Wash.2d 733, 738, 458 P.2d 882 (1969). A statement is defamatory if "it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him." Restatement (Second) of Torts § 614 (1977). The imputation of a criminal offense traditionally has been categorized as defamatory per se. See, e.g., Caruso v. Local Union No 690, 100 Wash.2d 343, 353, 670 P.2d 240 (1983); Amsbury v. Cowles Pub. Co., 76 Wash.2d at 737, 458 P.2d 882. Even if, as Butler and The Daily World assert, the reference to Mrs. LaMon's conviction could be considered, under the circumstances, innocuous, the reference is certainly capable of defamatory meaning. That is all this court need decide on this issue.

Butler and The Daily World contend, however, that, even if defamatory, the statement that Mrs. LaMon was convicted of assault is true. Truth, of course, is a complete defense to a claim of defamation. Jolly v. Fossum, 59 Wash.2d 20, 24, 365 P.2d 780 (1961); O'Brien v. Franich, 19 Wash.App. 189, 194, 575 P.2d 258 (1978). As a general rule, the truth of an alleged defamatory statement must be measured "as of the time of the defamatory publication." Restatement (Second) of Torts § 581A, comment g (1977). Here the record establishes, first, that Mrs. LaMon was convicted of assault in municipal court and, second, that the conviction was, in effect, reversed on appeal to the superior court. Thus, although, as a matter of "historical fact," Mrs. LaMon was convicted of assault, as a matter of "legal fact," the conviction, having been reversed, was voided. See State v. Hill, 83 Wash.2d 558, 561, 520 P.2d 618 (1974); State v. Dixon, 17 Wash.App. 804, 806, 565 P.2d 1207, review denied, 89 Wash.2d 1012 (1977).

We find that the LaMons have made a sufficient showing of falsity and that Butler and The Daily World have not rebutted that showing. The falsity in this case lies not in what was said but in what was left unsaid. To find otherwise would yield harsh results for defamation plaintiffs. For example, a person who is arrested erroneously, based on mistaken identity, thereafter should not be subject to media reports citing his arrest while ignoring his subsequent vindication. The test of truth cannot ignore the test of time.

With respect to the next element in the defamation equation, Butler and The Daily World contend that publication of the article containing the alleged defamation was privileged because it was a report of a public proceeding. In Mark v. Seattle Times, supra, the court approved the following statement of the rule regarding reports of public proceedings contained in the Restatement (Second) of Torts § 611 (1977):

[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

Mark v. Seattle Times, 96 Wash.2d at 487, 635 P.2d 1081.

The problem with the respondents' assertion of this privilege is that the statement regarding Mrs. LaMon's conviction did not derive from what took place at the city council meeting. As the respondents concede, the statement was merely background information. That statement was, thus, not within the scope of the privilege asserted.

The next issue we reach is that of fault. The degree of fault necessary to make out a prima facie case of defamation depends on whether the plaintiff is (1) a private individual or (2) a public figure or public official. Bender v. Seattle, 99 Wash.2d at 599, 664 P.2d 492. If the plaintiff is a private individual, a negligence standard applies. Bender v. Seattle, supra. If the plaintiff is a public official or public figure, the plaintiff must prove that the defendant acted with "actual malice," that is, with a knowledge of falsity or with a reckless disregard of truth or falsity. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Bender v. Seattle, supra. Butler and The Daily World argue that the LaMons are public figures and therefore must show actual malice.

The LaMons cannot be classified as public figures. We find it unnecessary, however, to elaborate upon this conclusion because we also conclude that, under the lesser standard of fault that a private plaintiff must show, the LaMons have not met their burden by evidence of convincing clarity. The LaMons base their argument, under either standard of fault, upon their contention that Butler and The Daily World knew the statement to be false because Butler knew the contents of the order dismissing the action against Mrs. LaMon.

Under the negligence standard, a plaintiff may recover for a defamatory falsehood "on a showing that in publishing the statement, the defendant knew or, in the exercise of reasonable care, should have known that the statement was false, or would create a false impression in some material respect." Taskett v. KING Broadcasting Co., 86 Wash.2d 439, 445, 546 P.2d 81 (1976).

We reject, first, the contention that Butler knew the statement to be false. Knowledge of the contents of the superior court order is not necessarily equivalent to...