McClatchy Newspapers, Inc. v. Superior Court

• Decision Date: 24 February 1987
• Citation: 189 Cal.App.3d 961,234 Cal.Rptr. 702
• Court: California Court of Appeals Court of Appeals
• Parties: , 13 Media L. Rep. 2281 McCLATCHY NEWSPAPERS, INC., et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent; Paul S. MOSESIAN, Real Party in Interest. F007501.

Page 702

234 Cal.Rptr. 702

189 Cal.App.3d 961, 13 Media L. Rep. 2281

McCLATCHY NEWSPAPERS, INC., et al., Petitioners, v. The SUPERIOR COURT of Fresno County, Respondent;

Paul S. MOSESIAN, Real Party in Interest.

F007501.

Court of Appeal, Fifth District, California.

Feb. 24, 1987.

Review Denied May 14, 1987.

Gibson, Dunn & Crutcher, Robert S. Warren, Rex S. Heinke, Kelli L. Sager, Los Angeles, Dietrich, Glasrud & Jones, Donald H. Glasrud and Timothy J. Buchanan, Fresno, for petitioners.

No appearance for respondent.

Nuttall, Berman & Magill and Roger T. Nuttall, Fresno, for real party in interest.

HAMLIN, Associate Justice.

Petitioners McClatchy Newspapers, Inc., publisher of the Fresno Bee, and two of its reporters, Jeanie Borba and Royal Calkins (collectively petitioners), seek a peremptory writ of mandamus requiring the Fresno County Superior Court (respondent court) to grant petitioners' motion for summary judgment in this libel case. Their petition requires this court to decide whether subdivision 4 of Civil Code section 47 grants the media an absolute privilege to report testimony and other evidence in a libel action even if that testimony was elicited and the other evidence was produced pursuant to a conspiracy to invoke immunity. We find petitioners' report of testimony and documentary evidence that had a reasonable relation to the action in which they were introduced is absolutely privileged; we will grant a peremptory writ as prayed.

Procedural and Factual Matters

The real party in interest in this action, Paul S. Mosesian (plaintiff), filed in respondent court an action for libel and false-light invasion of privacy based on an article published in the Fresno Bee on May 31, 1982 (1982 article). The 1982 article reported portions of Fresno Bee reporter Denny Walsh's testimony and excerpts from one of the documents he produced at his deposition in an unrelated libel case, Todisco v. McClatchy Newspapers, Fresno County Superior Court proceeding No. 253232-3 (Todisco litigation). In his deposition testimony Walsh named plaintiff as a member of the "Fresno mob" and defined that mob as "people who enter into conspiracies to subvert our laws."

Petitioners moved for summary judgment, contending their statements were absolutely privileged. When the trial court denied petitioners' motion, they filed in this court a petition for alternative and peremptory writs of mandamus, prohibition and review. This court denied that petition; petitioners sought review by our Supreme Court. The Supreme Court granted review and transferred the case to this court with directions to issue an alternative writ to be heard by this court. An alternative writ was issued as directed.

Petitioners have contended this court should accept as true the allegations in their petition and grant relief as prayed because plaintiff failed to respond to the alternative writ by demurrer or verified answer, or both, as required by Code of Civil Procedure section 1089. After this contention was advanced, plaintiff filed an application for order permitting him to file amendments to his responses. Plaintiff's application based on mistake or inadvertence is granted. However, the court disregards plaintiff's denials on information and belief, or for lack of either, as to facts which are matters of public record. (See 5 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 990, p. 415.)

Although plaintiff pleaded a cause of action for false-light invasion of privacy in addition to an action for libel, we consider only the libel action in this opinion. When an action for libel is alleged, a false-light claim based on the same facts (as in this case) is superfluous and should be dismissed. (See Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912; Selleck v. Globe International, Inc. (1985) 166 Cal.App.3d 1123, 1136, 212 Cal.Rptr. 838.)

DISCUSSION

I. Peremptory Writ Relief

Code of Civil Procedure section 437c, subdivision (l ), provides in pertinent part: "... Upon entry of any order pursuant to this section except the entry of summary judgment, a party may ... petition an appropriate reviewing court for a peremptory writ...." Given the discretionary nature of this type of relief, the petitioner for the issuance of a writ must meet certain threshold requirements. First, the petitioner is compelled to establish the absence of "a plain, speedy, and adequate remedy, in the ordinary course of law." (Code Civ.Proc., § 1086.) Additionally, the petitioner seeking extraordinary relief must prove a clear, present and beneficial or substantial right (Fair v. Fountain Valley School Dist. (1979) 90 Cal.App.3d 180, 186, 153 Cal.Rptr. 56; Baldwin-Lima-Hamilton Corp. v. Superior Court (1962) 208 Cal.App.2d 803, 813-814, 25 Cal.Rptr. 798), and that the body invested with discretion acted arbitrarily or without due regard for petitioner's rights (Huntington Park Redevelopment Agency v. Duncan (1983) 142 Cal.App.3d 17, 25, 190 Cal.Rptr. 744).

Plaintiff vehemently argues that petitioners have not met the threshold requirements for extraordinary relief. Specifically, plaintiff urges that trial and appeal provide adequate remedies. Moreover, plaintiff contends the trial court did not act arbitrarily in denying the petition for summary judgment in that it properly found there were triable issues of material fact (Code Civ.Proc., § 437c, subd. (c)).

The threshold requirement that petitioners establish the absence of an adequate remedy at law has already been satisfied. "[B]y directing the issuance of an alternative writ, the Supreme Court has determined that there is no other adequate remedy." (Amie v. Superior Court (1979) 99 Cal.App.3d 421, 424, 160 Cal.Rptr. 271. See also City of Los Angeles v. Superior Court (1959) 51 Cal.2d 423, 429, 333 P.2d 745.)

Our next concern is the existence of a correlative beneficial right or interest held by petitioners and a legal duty, resposed in the judicial body below, which was abused.

Clearly, petitioners had a substantial interest in a favorable resolution of their summary judgment motion. Considering the importance of speech freedoms in a democratic society, the expeditious disposition of defamation litigation is paramount. The media pay the price for protracted proceedings--chilled speech freedoms caused by a hesitancy to print articles carrying the potential for a lawsuit. (See Dombrowski v. Pfister (1965) 380 U.S. 479, 486-487, 85 S.Ct. 1116, 1120-1121, 14 L.Ed.2d 22; Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 684-685, 150 Cal.Rptr. 258, 586 P.2d 572.) As such, "summary judgment is a favored remedy" in libel actions (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 251, 208 Cal.Rptr. 137, 690 P.2d 610), and petitioners have a present and beneficial interest in the outcome of such proceedings. Our failure to recognize this right would be equivalent to turning our backs on years of precedent warning of protracted and costly litigation in the First Amendment area.

The final inquiry is whether respondent court has a present duty to grant summary judgment. (See Mannheim v. Superior Court (1970) 3 Cal.3d 678, 685, 91 Cal.Rptr. 585, 478 P.2d 17.) Plaintiff contends the trial court found the existence of a triable issue of material fact and consequently could not have abused its discretion by denying petitioners' motion for summary relief. A triable issue to which plaintiff points is whether petitioners conspired to present through Walsh's deposition defamatory testimony and documents containing defamatory statements to permit later publication of the libelous information in the Fresno Bee under Civil Code section 47 privileges. However, it is the contested degree of protection provided by section 47 that defines the boundary of the trial court's duty. Hence, we must turn to our analysis of the substantive law; the resulting interpretation of section 47 will indicate whether the lower court committed a legal error and thus abused its discretion. (See 8 Witkin, Cal.Procedure (3d ed. 1985) Extraordinary Writs, § 87, p. 727.)

II. Civil Code Section 47 Privileges

In pertinent part, Civil Code section 47 ¹ states, "A privileged publication or broadcast is one made--[p] ... [p] 2. In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, ... [p] ... [p] 4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, ..." Both subdivisions 2 and 4 are in controversy. Plaintiff argues neither privilege may be claimed by petitioners because of the conspiracy to permit Walsh to make defamatory statements in his deposition regarding plaintiff, thus allowing petitioners to report with immunity Walsh's deposition testimony and excerpts from a California State Department of Justice report prepared by Special Agent John Gill (Gill Report) on organized crime in the Fresno area on which Walsh relied. Petitioners strongly contend conspiracy or malice allegations do not vitiate the protective cloak of the statute. In addition to this dispute over the nature and extent of the privilege extended by section 47, the parties disagree as to what relationship or pertinency the defamatory statements must have to the proceedings in which they are made to be privileged under subdivision 2 of that section. Finally, the fairness and accuracy of the May 31, 1982, article is challenged by plaintiff in order to preempt an application of subdivision 4.

A. Section 47, Subdivision 2: Statements Made in the Course of Judicial Proceedings. ²

The nature and extent of the privilege bestowed by section 47, subdivision 2, is significant because of its potential effect upon judicial proceedings and the search for truth. Plaintiff urges that a conspiracy designed to introduce defamatory material into judicial proceedings vitiates the statutory privilege. We must evaluate...