Maple Properties v. Harris

• Citation: 158 Cal.App.3d 997,205 Cal.Rptr. 532
• Court: California Court of Appeals Court of Appeals
• Decision Date: 01 August 1984
• Parties: , 10 Media L. Rep. 2369 MAPLE PROPERTIES, a limited partnership, Plaintiff and Appellant, v. Betty H. HARRIS, Joann Ruden, Erwin Okun, and Does 303 through 400, inclusive, and 501 through 600, inclusive, Defendants and Respondents. Civ. 69423.

Page 532

205 Cal.Rptr. 532

158 Cal.App.3d 997, 10 Media L. Rep. 2369

MAPLE PROPERTIES, a limited partnership, Plaintiff and Appellant, v. Betty H. HARRIS, Joann Ruden, Erwin Okun, and Does 303 through 400, inclusive, and 501 through 600, inclusive, Defendants and Respondents.

Civ. 69423.

Court of Appeal, Second District, Division 3, California.

Aug. 1, 1984.

As Modified Aug. 9, 1984.

Certified for Partial Publication. ^*

Hearing Denied Oct. 4, 1984.

Levy & Norminton and Thomas M. Norminton and Leo D. Plotkin, Los Angeles, for plaintiff and appellant Maple Properties.

Loeb & Loeb and Howard I. Friedman and Robin Meadow, Los Angeles, and Ervin, Cohen & Jessup, Beverly Hills, and Richard Amerian, Los Angeles, for plaintiff and appellant Maple Properties and Levy & Norminton.

Selvin & Weiner and Paul P. Selvin and James S. Tyre and Yusim, Stein & Hanger and Robert T. Hanger, Roger Bentley and Scott C. Haith, Beverly Hills, for defendants and respondents.

SUMMARY

LUI, Acting Presiding Justice.

In this appeal, we are asked to analyze the sufficiency of the allegations of a complaint filed by appellant, a real estate developer, against the respondents, private citizens who supported a referendum that repealed a city ordinance which would have allowed appellant to build a condominium project. For the reasons stated below, we conclude that the conduct of the citizens during the course of this political campaign was not actionable.

We also determine that the appeal is partially frivolous as to the libel claims because the invalidity of these claims was conclusively adjudicated by our Supreme Court. Accordingly, we assess sanctions against appellant's counsel Levy & Norminton.

FACTS AND PROCEDURAL HISTORY

As a portion of the complaint has already been thoroughly reviewed by our Supreme Court in Okun v. Superior Court (1981) 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369 (cert. den. 454 U.S. 1099, 102 S.Ct. 673, 70 L.Ed.2d 641), we adopt the Supreme Court's recital of the facts of this case as our own.

Appellant, Maple Properties, "is a limited partnership that purchases, manages, develops, and sells real property. In 1977 it bought 10 acres of Beverly Hills property with a view to building condominiums. The property, then under a building moratorium pending determination of zoning, adjoined city-owned parcels. [Appellant] had discussed with city officials the possibility of a land exchange so that [appellant] and the city each would own contiguous land. The discussions concluded successfully on November 28, 1978, when the city council agreed to the land exchange and adopted a zoning ordinance allowing plaintiff to construct condominiums on all its newly acquired property. [p] To prevent construction, [respondents Erwin Okun, Betty H. Harris, Joann Ruden and various Does] circulated and then filed a petition to allow the electorate to reject or accept the ordinance. Consequently, the council placed it on the ballot for an election held March 9, 1979. It was rejected and thus repealed...." (Okun, supra, 29 Cal.3d at pp. 447-448, 175 Cal.Rptr. 157, 629 P.2d 1369.)

Two months after the referendum election, appellant filed its initial complaint against respondents. The subsequently filed first amended complaint alleged ten causes of action, namely for libel (the first, second, third and fifth causes of action), slander (fourth and sixth causes of action), violation of various federal civil rights laws (seventh and eighth causes of action) and interference with prospective economic advantage (ninth and tenth causes of action).

On April 24, 1980, respondents' demurrer to the first and seventh through tenth causes of action was sustained without leave to amend. Respondents' demurrer to the defamation causes of action (second, third, fifth and sixth), however, was overruled. The fourth cause of action was placed off calendar because it alleged only Doe defendants.

The Supreme Court granted a hearing on respondents' petition for writ of mandate on the defamation causes of action and eventually issued a peremptory writ of mandate directing the superior court to sustain the demurrer. (Okun, supra, 29 Cal.3d at p. 460, 175 Cal.Rptr. 157, 629 P.2d 1369.) The peremptory writ issued by the Supreme Court ordered the demurrer to the libel causes of action sustained without leave to amend but permitted amendment of the sixth cause of action for slander. (Id., at p. 460, 175 Cal.Rptr. 157, 629 P.2d 1369.) ¹

On remand, the trial court, pursuant to the order of the Supreme Court, sustained the demurrer to the libel causes of action without leave to amend.

Appellant filed a second amended complaint, alleging only a fourth cause of action for slander and a sixth cause of action for conspiracy to commit slander. The trial court sustained respondents' demurrer to the second amended complaint and denied further leave to amend. Subsequently, the trial court dismissed the entire action.

Appellant filed a timely notice of appeal which is the subject of this opinion.

CONTENTION

Appellant contends that the complaint states ten viable causes of action and that the trial court erred in sustaining the various demurrers without leave to amend.

DISCUSSION

I Our Supreme Court's Decision in Okun v. Superior Court (1981) 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369, Mandates Dismissal of the Causes of Action Based on Libel

Appellant first contends that the superior court erred in dismissing the libel causes of action. The allegedly libelous documents consisted of a letter to the editor of the Los Angeles Times, ² an open letter to the Mayor published in the Beverly Hills Courier ³ and the statement included in the "Sample Ballot and Voter Information Pamphlet." ⁴

In Okun, supra, 29 Cal.3d 442, 175 Cal.Rptr. 157, 629 P.2d 1369, the Supreme Court exhaustively analyzed these documents and concluded that they "could not reasonably have been interpreted by its probable readers as having a libelous meaning." (Id., at p. 457, 175 Cal.Rptr. 157, 629 P.2d 1369.) The court further concluded that leave to amend the complaint should be denied "because 'there are no circumstances under which an amendment would serve any useful purpose' [citation] ...." (Id., at p. 460, 175 Cal.Rptr. 157, 629 P.2d 1369.) (Emphasis added.)

Incredibly, appellant now asks this court to overturn the superior court order which complies with the clear and unambiguous directive of the Supreme Court to dismiss the libel causes of action.

Initially, appellant contended in its opening brief that our further review of the libel causes of action was warranted on grounds that subsequent to the Supreme Court's decision in Okun, "new facts" "which were not part of the record in the first appeal" were discovered. Appellant urged that these "new facts" that respondent and others had agreed to make criminal complaints against Richard Stone and appellant with government agencies at the time the allegedly libelous letters were published, "add[ed] new contextual meaning" to the publications which our Supreme Court had deemed to be nonlibelous.

However, the record reveals that these additional facts were not "new" at all. Appellant now concedes that these facts were part of the record when the Supreme Court considered respondents' petition for writ of mandate and again when it considered appellant's petition for rehearing. ⁵

It is axiomatic that the Court of Appeal is bound by the decision of the California Supreme Court. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) The Supreme Court's determination of the question of the propriety of the libel causes of action is law of the case. (Richer v. Superior Court (1976) 63 Cal.App.3d 748, 134 Cal.Rptr. 52.) We can review it no further and the libel causes of action were properly dismissed.

II This Appeal Is Partially Frivolous and Is an Appropriate Instance for the Imposition of Sanctions

A. The Procedural History and Our Order To Show Cause

We now address the question as to whether sanctions should be imposed under Code of Civil Procedure section 907 ⁶ and rule 26(a) of the California Rules of Court. ⁷

In its brief on appeal, respondent Okun requested that this court award sanctions for attorney's fees and costs on the grounds that the contentions on appeal were frivolous. (Code Civ.Proc., § 907; Cal.Rules of Court, rule 26(a).) Appellant argued against the imposition of sanctions in its reply brief.

Appellant filed a written election to waive oral argument at the hearing on the appeal set for May 16, 1984. Respondents' counsel appeared at the oral argument, argued briefly and responded to our questions; both counsel then requested sanctions against appellant for pursuing a frivolous appeal. We indicated to respondents' counsel that we would consider remanding the matter for hearing in the superior court on the question of sanctions for an appeal that was frivolous with regard to the libel claims.

Upon reflection, it was our view that the issue of sanctions for an appeal which was partially frivolous was a question of law and therefore an issue we should decide. Because of our desire to follow scrupulously the dictates of our Supreme Court's decision in In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d 179 (Flaherty ), and because of appellant's decision not to appear for oral argument, we issued an Order to Show Cause why sanctions should not be assessed against appellant and its counsel. ⁸

Appellant and its counsel filed a 32-page brief in response to our Order to Show Cause. ⁹ This brief asserted three major contentions: (1) the proceeding instituted by our Order to Show Cause violates their procedural due process rights because they were not afforded reasonable notice and an opportunity to be heard; (2) the appeal is not frivolous; and (3) even if the appeal on the libel claims is frivolous, the remaining six causes of action are...