Matson v. Dvorak

• Citation: 40 Cal.App.4th 539,46 Cal.Rptr.2d 880
• Decision Date: 21 November 1995
• Docket Number: No. C020162,C020162
• Court: California Court of Appeals
• Parties: , 95 Cal. Daily Op. Serv. 8896, 95 Daily Journal D.A.R. 15,399 Paul MATSON, Plaintiff and Appellant, v. Eugene J. DVORAK, Defendant and Respondent.

Page 880

46 Cal.Rptr.2d 880

40 Cal.App.4th 539, 95 Cal. Daily Op. Serv. 8896,

95 Daily Journal D.A.R. 15,399

Paul MATSON, Plaintiff and Appellant, v. Eugene J. DVORAK, Defendant and Respondent.

No. C020162.

Court of Appeal, Third District, California.

Nov. 21, 1995.

Certified for Partial Publication ^*

Siegel, Yee & Jonas, Dan Siegel, Oakland, for Plaintiff and Appellant.

Norman & Eames, James K. Norman, Auburn, for Defendant and Respondent.

SCOTLAND, Associate Justice.

Plaintiff Paul Matson appeals from a judgment of dismissal following a successful motion to strike pursuant to Code of Civil Procedure As we shall explain in the published portion of this opinion, the trial court correctly applied section 425.16 to this lawsuit because it arises from an act in furtherance of the right of free speech. The cause of action for libel was properly stricken because Matson made no showing that Dvorak had a responsible role in the publication. One whose only contribution to a political campaign is financial, and who otherwise is not involved in the preparation, review or publication of campaign literature, cannot be subject to liability in a defamation action for statements contained in the publication even if it is established that the statements are false and were published with malice. The cause of action for invasion of privacy was properly stricken because, regardless of whether a record of unpaid fines is a private or public fact, the claim that a candidate for public office has refused or neglected to pay fines is a legitimate issue of public concern.

                section 425.16, commonly known as the "anti-SLAPP statute" (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 817-818, 33 Cal.Rptr.2d 446). 1  He contends the trial court erred in applying this statute to strike his causes of action against defendant Eugene Dvorak for libel and invasion of privacy based upon the contents of a campaign flyer published by a political organization to which Dvorak contributed money.  The flyer accused Matson, a candidate for election to the city council, of having "hundreds of dollars of unpaid fines and citations" issued by the police department.  Matson also challenges the court's award of attorney fees to Dvorak in accordance with Code of Civil Procedure section 425.16, subdivision (c).  (Further section references are to the Code of Civil Procedure unless otherwise specified.)
                

In the unpublished parts of our opinion, we discard Dvorak's assertion that Matson failed adequately to perfect his right to appeal from the trial court's orders, and reject Matson's challenge to the attorney fee award. Accordingly, we shall affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

In 1992, Paul Matson and David Tobiassen were members of the Nevada City Council and rival candidates for the Nevada County Board of Supervisors in the general election held on November 3, 1992. To some extent, Matson was characterized in the contest as a "pro-environment, anti-development" candidate, while Tobiassen was characterized as "pro-development."

Five days before the election, an unspecified number of Nevada County voters received in the mail a campaign flyer urging them to "JUST SAY NO TO PAUL MATSON!" The flyer states it is "paid for by Concerned Citizens for Responsible Leadership," and contains this text: "Paul Matson doesn't want to obey the law ... [p] ... He just wants to be your Supervisor!" "Some politicians think they're better than the rest of us! [p] According to city records, Nevada City Councilman Paul Matson has hundreds of dollars of unpaid fines and citations stacking up in city hall. Not just current violations, but dating back into the mid 1980's!" The accompanying illustration shows a stack of eight purported citations marked "POLICE DEPARTMENT [p] NOTICE OF VIOLATION [p] **DELINQUENT**" on each of which is Matson's name. One such document, dated June 1987, bears the notation "$315 Bail [p] MAIL TO: NEVADA CITY POLICE"; no date or bail amount is visible on the other documents depicted.

Matson lost the November 1992 election. A year later, he sued David Tobiassen, Concerned Citizens for Responsible Leadership, and various individuals and entities Matson later alleged to be members and contributors of Concerned Citizens for Responsible Leadership: Eugene J. Dvorak, Dean Deniz, Amaral Family Trust, Jack A. Erickson, The Erickson Group, Ltd., and Wildwood West Real Estate. The complaint seeks damages Defendants other than Dvorak moved to strike the libel and invasion of privacy claims (the first and second causes of action, respectively) on the ground there is no probability Matson will prevail on these claims. § 425.16.) ² Among other things, they asserted that Matson's cause of action for libel fails to contain essential factual allegations which would support an inference that the campaign flier was published with actual malice (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686, 708), and the invasion of privacy cause of action is untenable because the citations referred to in the flier are not "private facts" and are matters of legitimate public concern in that Matson was a political candidate (Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126, 188 Cal.Rptr. 762.)

for libel, invasion of privacy, and violation of the California Political Reform Act. It alleges the campaign flyer (1) "falsely stat[es] that plaintiff was a scofflaw and a person who habitually flaunted his violations of the law"; (2) was prepared with information that defendants unlawfully obtained from "confidential records concerning plaintiff in the possession of the Nevada City Police Department"; and (3) unlawfully concealed that Concerned Citizens for Responsible Leadership was a "sponsored committee" organized to support the rival candidacy of defendant Tobiassen.

Following these successful motions, Dvorak moved to strike the complaint pursuant to section 425.16. In addition to incorporating the memoranda of points and authorities filed by other defendants and also arguing that the libel cause of action is unlikely to prevail because the statements attributed to him are substantially true or merely are an assertion of opinion, Dvorak averred that he (1) does not know Matson or Tobiassen, (2) did not prepare or read the allegedly libelous campaign flyer, and (3) is not a member of defendant Concerned Citizens for Responsible Leadership, knows no one who is, and has "no knowledge of who sponsored the Concerned Citizens for Responsible Leadership, or who it was formed to support."

Matson opposed Dvorak's motion with evidence that Tobiassen's campaign "was supported by many people involved in Nevada County real estate development projects, including ... Dvorak," and that Tobiassen used false pretenses to obtain from the police department a list of overdue parking citations, which he knew to be inaccurate and which included 20 overdue parking citations issued to Matson. According to Matson, Tobiassen then "provided the information he obtained regarding Matson to Dean Deniz and the other individual defendants. It is unknown whether he apprised them of his knowledge concerning the unreliable nature of this information." Matson also submitted copies of campaign disclosure forms filed by Concerned Citizens for Responsible Leadership, which show that Dvorak contributed $999 to the organization and that virtually all sums collected by Concerned Citizens for Responsible Leadership were spent on the allegedly libelous mailing.

In July 1994, the court granted Dvorak's motion to strike the libel and invasion of privacy claims based on section 425.16, finding "plaintiff did not meet his burden of proof to establish a probability that he will prevail on his claim as to these causes of action." The order says nothing about Dvorak then sought attorney fees and costs pursuant section 425.16, subdivision (c), which states in pertinent part that a defendant who prevails on a motion to strike under section 425.16, subdivision (b) "shall be entitled to recover his or her attorney's fees and costs." The court subsequently awarded Dvorak costs and $2,200 in attorney fees.

whether Matson was permitted to amend these two causes of action. ³

While Dvorak's motion for attorney fees was pending, Matson amended his complaint. The amended complaint restates the libel and invasion of privacy causes of action, again names Dvorak as a defendant in those theories of recovery, and adds an allegation that Dvorak was not "merely [a] contributor[ ] to Concerned Citizens for Responsible Leadership" but was a "knowing participant[ ] in the formation and improper actions of Concerned Citizens for Responsible Leadership."

Dvorak (together with defendants Amaral Family Trust, Jack A. Erickson, The Erickson Group, Ltd., and Wildwood West Real Estate) renewed the motion to strike the libel and invasion privacy causes of action from the amended complaint (as contrary to section 425.16 and made without leave of court), moved for judgment on the pleadings as to all causes of action, and requested sanctions. ⁴

Matson responded by filing a "stipulation"--to which he and defendant Amaral Family Trust alone are parties--stating Matson "agrees that in light of the Court's previous rulings, the first two causes of action of the First Amended Complaint for Damages (Libel) do not apply to and are not brought against defendants Amaral Family Trust, Eugene J. Dvorak, Jack A. Erickson, The Erickson Group, Limited, and Wildwood West Real Estate...."

In his opposition to the second motion to strike and for judgment on the pleadings, Matson volunteered to "dismiss those defendants who truly are 'mere contributors' to Concerned Citizens [for Responsible Leadership]," complaining that he had been hampered in his efforts to depose each of the defendants so as to ascertain which were "mere contributors." Matson nonetheless refused to abandon...