Martin v. Johnson

• Decision Date: 19 January 1979
• Citation: 88 Cal.App.3d 595,151 Cal.Rptr. 816
• Court: California Court of Appeals Court of Appeals
• Parties: Walter R. MARTIN, Plaintiff and Appellant, v. Bruce A. JOHNSON et al., Defendants and Respondents. Civ. 19258.

Page 816

151 Cal.Rptr. 816

88 Cal.App.3d 595

Walter R. MARTIN, Plaintiff and Appellant, v. Bruce A. JOHNSON et al., Defendants and Respondents.

Civ. 19258.

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

Jan. 19, 1979.

Jacque Boyle, Los Angeles, for plaintiff and appellant

Daniel R. Bucknum, Newport Beach, for defendant and respondent, Bruce A. Johnson.

Kirton, McConkie, Boyer & Boyle, and Dan S. Bushnell, Salt Lake City, Utah, Garrett & Dimino and Kenneth R. Garrett, Tustin, for defendants and respondents, The Church of Jesus Christ of Latterday Saints et al.

OPINION

McDANIEL, Associate Justice.

INTRODUCTION

Walter R. Martin (plaintiff) brought suit against Bruce A. Johnson (defendant Johnson) and The Church of Jesus Christ of Latterday Saints (defendant church, also referred to as L.D.S. Church). ¹ Plaintiff charged that defendants had committed the torts of defamation, intentional infliction of emotional distress, interference with prospective advantage and conspiracy to commit those torts. After the action was at issue, the trial court granted defendants' motion for summary judgment made pursuant to Code of Civil Procedure section 437c. ² Thereafter, plaintiff made two motions, one to set aside defendant's summary judgment pursuant to section 473, ³ and the other for a new trial. The trial court denied both motions. Plaintiff appealed "from the denial of Plaintiff's Motion to Set Aside Summary Judgment and the Motion . . . for a New Trial . . ."

STATEMENT OF FACTS

Plaintiff is an ordained minister in the Southern Baptist Convention. He currently teaches the subject of comparative religion at Melodyland School of Theology at Anaheim, California.

Since the early 1950's, plaintiff has written a number of provocative books, articles and pamphlets and has recorded tapes on the subject he calls the Cult of Mormonism. Those writings include: "The Rise of the Cults" (1955); "Mormonism" (1957), a pamphlet; "The Maze of Mormonism" (1962); a chapter on Mormonism in his book entitled "The Kingdom of the Cults" (1965); a tape entitled "Mormonism Yesterday and Today"; and articles in "Eternity Magazine" concerning Mormonism. Plaintiff has also delivered numerous lectures on this theme. In addition to his writings on his views of Mormonism, plaintiff has authored books and pamphlets on other religions which he characterizes as occultic and has conducted a radio program entitled the "Bible Answer Man" in Orange County, California.

Plaintiff's action here stems from public criticism by defendant Johnson directed at the integrity of plaintiff's research and the validity of plaintiff's opinions on the Mormon religion. Defendant Johnson apparently first had contact with plaintiff on November 1, 1972, on the occasion of a lecture by plaintiff at the Calvary Chapel in Costa Mesa, California. After plaintiff's lecture, defendant Johnson talked with plaintiff about plaintiff's theories. Plaintiff did not allege that any of his claimed grievances occurred during the November 1, 1972, discussion.

After that meeting, defendant Johnson read plaintiff's pamphlet entitled "Mormonism." The record and exhibits before us indicate that in that pamphlet plaintiff had aggressively criticized the Mormon religion. For example, plaintiff stated that "Mormons are polythesists and anti-Trinitarians masquerading under Christian terminology in a clever attempt to appear as 'angels of light' when in reality they are . . . 'ministers of Satan.' . . . In the final analysis . . . Mormonism . . . is, a cleverly designed counterfeit of the Christian religion, . . . (U)nderneath the filmy coat of pseudo-Christian all Mormons adhere tenaciously to the anti-Christian dogmas of Joseph Smith and Brigham Young."

Primarily in response to plaintiff's critical opinions in "Mormonism" and secondarily in response to the first discussion he had had with plaintiff on November 1, 1972, defendant Johnson authored a pamphlet entitled "A Mormon Answers." Plaintiff in part bases his action against defendants on the critical comments of plaintiff articulated by defendant Johnson in "A Mormon Answers." As appears in the record, that criticism included the following comments by defendant Johnson about plaintiff:

1. "One would be forced to question if Mr. Martin actually used the sources listed."

2. "His (plaintiff's) work is a travesty on scholarship."

3. "Plaintiff's writings contain . . . factually gross violations of what they taught, Joseph Smith and Brigham Young."

4. "Mr. Martin continues his misrepresentations."

5. "Did Satan tell an out-and-out lie? No, he told a half truth. That is what Mr. Martin does . . ."

6. "If Mr. Martin wishes to be honest . . ."

7. "Most anti-Mormon writers begin in much the same fashion as Mr. Martin, that of character assassination."

Plaintiff further bases his action on public statements made by defendant Johnson on June 4, 1974, at the Westminster Presbyterian Church, Westminster, California. Defendant Johnson had engaged in a debate with plaintiff during the question-and-answer period following plaintiff's lecture at that church. The record indicates that defendant Johnson made the following comments:

"(a) I stand here tonight and I'm prepared with evidence and I charge you of deception and of fraud in your representation of what Mormons teach and what Brigham and Joseph said;

"(b) One further example of the fraud you represent;

"(c) Misrepresenting grossly;

"(d) You spent 24 years of your life deceiving(.)"

The record further indicates that during the heated exchange between plaintiff and defendant Johnson at the time and place noted, plaintiff made the following statements:

"1. I have no respect for the Mormon Church, nor for Joseph Smith and Brigham Young, because I believe as Orson Pratt has said that they have been deceived and that their theology is contrary to biblical revelation . . .

"2. If we are going to ever reach Mormonism, it will be by telling them the truth, as it is in Jesus, and by pointing out to them that though we hate the theology of the Mormon Church because it is evil, we love them because Jesus Christ did and died for their sins.

"3. If they are condemned, (i. e. Mormons) they are condemned by Holy Scripture, because they have listened to false prophets who have made merchandise of them with feigned words . . .

"My heart goes out to the sincere and the earnest, and the dedicated Mormon, who has really believed Joseph (Smith) and Brigham (Young). You have believed a lie . . ."

At the time defendant Johnson authored "A Mormon Answers," near the end of 1972, he was a member and elder in the Priesthood of the L.D.S. Church. To hold Beyond the key procedural issues framed by the appeal, the record suggests several interesting issues relating to the merits of the action as filed. For example, is plaintiff a public figure within the framework of Gertz v. Welch, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, and if so, does the New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 "actual malice" test apply when a defendant is not media related? (See, e. g., Shiffrin, Defamatory Non-Media Speech and First Amendment Methodology (1978) 25 UCLA L.Rev. 915.) However, because of the procedural posture of this case, we are precluded from addressing those issues directly in disposing of the appeal.

such position, a male member must be 18 years of age or older. At the time of the verbal exchange between plaintiff and defendant Johnson in June 1974, Johnson lived in the L.D.S. Church geographical area called Fountain Valley First Ward and maintained his elder position there. Because of defendant Johnson's association with the L.D.S. Church as described, plaintiff named that church and its subsidiary groups as defendants. Plaintiff's alleged right to recovery against the church defendants is on a theory of vicarious liability based on respondeat superior.

Plaintiff's notice of appeal expressly states that he is appealing "from the denial of (his) Motion to Set Aside Summary Judgment and (his) Motion . . . for a New Trial." Defendants contend that plaintiff's appeal should be dismissed because he has appealed from nonappealable orders. Defendants first assert that "well settled authority in California forbids an appeal from a denial of a motion to set aside a previous judgment. . . ." Secondly, defendants urge that "(i)t is unquestioned appellate procedure that a Denial of a Motion for a New Trial is non-appealable."

As we shall explain below, defendants are correct in their assertion that plaintiff's appeal from the trial court's denial of his motion for a new trial must be disregarded because such an order is nonappealable. On the other hand, defendants' contention that plaintiff's appeal from the trial court's order denying his section 473 motion is similarly nonappealable is incorrect. Such an order after judgment is clearly appealable. (§ 904.1, subd. (b).) Thus, the key issue before us is whether the trial court abused its discretion in denying plaintiff's section 473 motion. Our conclusion is that it did not.

I

During the hearing on the earlier motion for summary judgment made by defendants they argued that plaintiff's affidavits in opposition were legally defective because they contained hearsay and were not based on the declarants' personal knowledge. Hence, according to defendants, they failed to conform to the requirements in section 437c governing declarations and affidavits filed in opposition to a motion for summary judgment. "Supporting and opposing affidavits or declarations shall be made by any person on Personal knowledge, shall set forth Admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." (§ 437c, emphasis added.)

Because of the defects noted, the trial court granted defendants' motion to strike certain paragraphs of plaintiff's declaration and exhibits submitted by...