McKinney v. County of Santa Clara

• Court: California Court of Appeals
• Writing for the Court: SCOTT; WHITE, P. J., and FEINBERG
• Citation: 110 Cal.App.3d 787,168 Cal.Rptr. 89
• Parties: Craig B. McKINNEY, Plaintiff and Appellant, v. COUNTY OF SANTA CLARA et al., Defendants and Respondents. Civ. 45118.
• Decision Date: 01 October 1980

Page 89

168 Cal.Rptr. 89 110 Cal.App.3d 787 Craig B. McKINNEY, Plaintiff and Appellant,
v.
COUNTY OF SANTA CLARA et al., Defendants and Respondents. Civ. 45118. Court of Appeal, First District, Division 3, California. Oct. 1, 1980.
Rehearing Denied Oct. 30, 1980.
Hearing Denied Dec. 10, 1980.

[110 Cal.App.3d 791]

Page 91

Lewis Phon, San Francisco, for plaintiff and appellant.

Selby Brown, Jr., County Counsel, Steven Woodside, Deputy County Counsel, San Jose, for defendants and respondents.

SCOTT, Associate Justice.

This appeal is from a judgment entered after respondents' motion to dismiss the complaint was granted in the second of two actions[110 Cal.App.3d 792] filed by appellant, Craig B. McKinney, against respondents. The litigation arises out of the termination of appellant's employment as a probationary deputy sheriff by respondent County of Santa Clara on June 18, 1976.

Appellant filed two actions against the County of Santa Clara. The first action (Santa Clara County Case No. 366348) was filed on December 29, 1976. The complaint alleged three causes of action against respondents: libel, slander, and wrongful dismissal. On February 16, 1978, respondents generally demurred to appellant's complaint on the ground that it failed to state a cause of action in that it failed to allege that a notice of claim had been presented to respondents in accordance with the provisions of the Government Tort Claims Act. (See Gov. Code, §§ 905, 911.2, 945.4, 950.2.) After hearing the motion was granted without leave to amend and judgment was entered on March 13, 1978. No appeal was taken by appellant.

On April 10, 1978, appellant filed the second action, which is the subject of this appeal (Santa Clara County Case No. 397998). The complaint filed in this action is substantially identical to the one filed in the first action, except that it alleges appellant submitted a written claim for damages to the County Board of Supervisors on November 15, 1977, in compliance with the Tort Claims Act, and that the alleged defamatory statements which are the basis of the libel and slander causes of action were republished to a third person on or about June 1977 and November 3, 1977. Respondents answered the complaint on May 12, 1978, denying only the allegations regarding the alleged republications of the defamatory statements. As a first affirmative defense respondents asserted the doctrine of res judicata.

On May 23, 1978, respondents filed a motion to dismiss the complaint. The motion was made on grounds that the judgment in the first action was a bar to the prosecution of second action, and that the new allegations with respect to the republications were without merit. At the hearing on respondents' motion to dismiss, the court questioned appellant, appearing in propria persona, regarding the basis of his allegations of republication. Appellant responded that he himself had republished the alleged defamatory statements by divulging their substance to police departments at which he applied for a job as a police officer. He explained that the alleged defamatory statements were made by respondents in reviewing his job performance and formed the basis for his dismissal. He asserted that the republication by himself was not [110 Cal.App.3d 793] voluntary but, rather, required of him as a practical matter by the police agencies at which he applied for a new job.

Respondents' motion to dismiss was granted on June 2, 1978. The court ruled that the judgment entered in the first action between the parties barred the prosecution of all of appellant's claims in his second action except for the action for libel based upon the republications of June 1977 and November 3, 1977, and the action for slander based upon the republications of those same dates. The court further ruled that those actions were without merit in light of appellant's admission that he himself had republished the defamatory statements. The court granted the motion to dismiss and judgment was entered thereon. This appeal followed.

Appellant makes three contentions on appeal: that the first action does not bar the prosecution of the second action; a cause of action for defamation may be predicated upon a foreseeable republication of the defamatory statements by the person defamed; and the trial court failed to consider his third cause of action for wrongful

Page 92

dismissal before dismissing his entire complaint and thereby depriving him of due process of law.

Before taking up appellant's arguments, it is necessary to clarify that the standard which the superior court should have applied in ruling upon respondents' motion to dismiss. Respondents brought a motion to dismiss in the superior court and filed supporting declarations. Such motions, so-called "speaking motions," have been superseded by the procedures governing motions for summary judgment contained in Code of Civil Procedure section 437c. (Vesely v. Sager (1971) 5 Cal.3d 153, 167-169, 95 Cal.Rptr. 623, 486 P.2d 151; Pianka v. State of California (1956) 46 Cal.2d 208, 211-212, 293 P.2d 458.) A speaking motion to dismiss is treated as a motion for summary judgment in order to preserve the safeguards provided by section 437c.

The rules governing summary judgment are well established. "Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures [110 Cal.App.3d 794] of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion." (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785; D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20, 112 Cal.Rptr. 786, 520 P.2d 10; McCreery v. Eli Lilly & Co. (1978) 87 Cal.App.3d 77, 81-82, 150 Cal.Rptr. 730.) In addition to affidavits and declarations filed in support of or in opposition to the motion, the court may also consider facts which are properly the subject of judicial notice, and a party can rely upon his adversary's pleadings to establish facts which are not contained in his affidavits. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689.)

Appellant's contention that the judgment in the first action does not bar the prosecution of all the claims in...