Moyer v. Amador Valley J. Union High School Dist., s. A046084

• Decision Date: 27 November 1990
• Docket Number: Nos. A046084,47591,s. A046084
• Citation: 275 Cal.Rptr. 494,225 Cal.App.3d 720
• Court: California Court of Appeals Court of Appeals
• Parties: , 64 Ed. Law Rep. 205, 18 Media L. Rep. 1602 Larry L. MOYER, Plaintiff and Appellant, v. AMADOR VALLEY JOINT UNION HIGH SCHOOL DISTRICT, et al., Defendants and Appellants.

Page 494

275 Cal.Rptr. 494

225 Cal.App.3d 720, 64 Ed. Law Rep. 205, 18 Media L. Rep. 1602

Larry L. MOYER, Plaintiff and Appellant, v. AMADOR VALLEY JOINT UNION HIGH SCHOOL DISTRICT, et al., Defendants and Appellants.

Nos. A046084, 47591.

Court of Appeal, First District, Division 1, California.

Nov. 27, 1990.

Certified for Partial Publication ^*

Rita Rowland, McCray, Rowland & Donovan, Dublin, for plaintiff and appellant.

Stubbs, Stubbs, Hittig & Stubbs and Stubbs, Hittig & Leone, Louis A. Leone, San Francisco, for defendants and appellants, School Dist.

Barry R. Gross, Inc. and Anthony L. Head, Oakland, for students, Jason Rothman and Kurt Hill.

Dobbs, Berger, Molinari, Vanelli, Nadel & Links and Robert D. Links, San Francisco, for student, John Oliverius.

RACANELLI, Presiding Justice.

Plaintiff Larry L. Moyer, a teacher by profession, filed a 12-count complaint seeking damages on theories of defamation and infliction of emotional distress arising from the publication of a story in a high school student newspaper. Plaintiff now appeals from an order dismissing his complaint following the sustaining of general demurrers without leave to amend. The appeal is presented against the following factual and procedural background.

On March 11, 1988, an article appeared in In Flight, a student publication of Foothill High School, reporting that a smoke bomb had gone off in plaintiff's classroom. The headline stated: "Students terrorize Moyer." The article quoted the bomb-throwing student who merely "wanted to play a joke" as well as "The Shadow," the student who supplied the smoke bomb because "Mr. Moyer is a babbler, and babblers are annoying to me.... [p] Also he pissed me off, he is the worst teacher at FHS."

The complaint named as party defendants the school district, school principal, student newspaper advisor, the students who made and reported the comments, including another student who reported plaintiff's filing of a governmental tort (libel) claim and republished the "babbler" and "worst teacher" remarks. The opposing arguments below centered on whether the challenged remarks constituted nonactionable expressions of opinion or arguably triable factual issues.

While sustaining the general demurrers, the trial court denied the school district's motion for costs, including attorney fees, under the authority of Code of Civil Procedure section 1038. The district has filed a separate appeal from that order which we have consolidated herein.

DISCUSSION

I. Defamation

Prior to the filing of briefs herein, the courts perceived a fundamental distinction between statements of fact and statements of opinion. Statements of opinion were held to be protected by the First Amendment and thus not actionable. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259-260, 228 Cal.Rptr. 206, 721 P.2d 87, cert. den. 479 U.S. 1032, 107 S.Ct. 880, 93 L.Ed.2d 834; Okun v. Superior Court (1981) 29 Cal.3d 442, 450-451, 175 Cal.Rptr. 157, 629 P.2d 1369 cert. den. sub nom. Maple Properties v. Superior Court (1981) 454 U.S. 1099, 102 S.Ct. 673, 70 L.Ed.2d 641; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600-604, 131 Cal.Rptr. 641, 552 P.2d 425; Hofmann Co. v. E.I. Du Pont de Nemours & Co. (1988) 202 Cal.App.3d 390, 407-408, 248 Cal.Rptr. 384; Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277, 290-291, 112 Cal.Rptr. 609.) This prevailing rule was grounded primarily on dictum contained in Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340, 94 S.Ct. 2997, 3006-3007, 41 L.Ed.2d 789: "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact."

On June 21, 1990, while this appeal was pending, our highest court filed its opinion in Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1, in which it reexamined the law of defamation within the context of the First Amendment and rejected what it called "the creation of an artificial dichotomy between 'opinion' and fact." (Id. at p. ----, 110 S.Ct. at p. 2706.) The court explained that the language in Gertz had been interpreted too broadly and was not intended to create "a wholesale defamation exemption for anything that might be labeled 'opinion.' " (Ibid.) Instead, the court made clear that a false assertion of fact could be libelous even though couched in terms of opinion. ¹

Although the Milkovich court held that there is no separate First Amendment privilege for statements of opinion, the court recognized that existing constitutional doctrine remained operative to protect free expression of ideas. That is, statements that cannot be "reasonably interpreted as stating actual facts" are still entitled to constitutional protection. (Id. 497 U.S. at p. ----, 110 S.Ct. at p. 2706; e.g., Hustler Magazine, Inc. v. Falwell (1988) 485 U.S. 46, 50, 57, 108 S.Ct. 876, 879, 883, 99 L.Ed.2d 41 [parody]; Letter Carriers v. Austin (1974) 418 U.S. 264, 284-286, 94 S.Ct. 2770, 2781-2782, 41 L.Ed.2d 745 [hyperbole and imaginative expression]; Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 1541-1542, 26 L.Ed.2d 6 [same].)

Before Milkovich, the California courts had employed a "totality of the circumstances" test to differentiate between fact and opinion: "First, the language of the statement is examined. For words to be defamatory, they must be understood in a defamatory sense.... [p] Next, the context in which the statement was made must be considered.... [p] This contextual analysis demands that the courts look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed." (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at pp. 260-261, 228 Cal.Rptr. 206, 721 P.2d 87.) The crucial determination whether the statement was fact or opinion was held to be a question of law for the court. (Id. at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87; see generally Letter Carriers v. Austin, supra, 418 U.S. 264, 94 S.Ct. 2770; Greenbelt Pub. Assn. v. Bresler, supra, 398 U.S. 6 90 S.Ct. 1537; see also Okun v. Superior Court, supra, 29 Cal.3d at p. 450, 175 Cal.Rptr. 157, 629 P.2d 1369; Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.) The federal courts employed a similar test. (Ollman v. Evans (D.C.Cir.1984) 750 F.2d 970, 979, cert. den. (1985) 471 U.S. 1127, 105 S.Ct. 2662, 86 L.Ed.2d 278.)

Milkovich did not substantially change these principles; it underscored that in cases such as this, raising First Amendment issues, a reviewing court must make an independent examination of the whole record in order to ensure that there is no infringement of free expression. (--- U.S. at p. ----, 110 S.Ct. at p. 2705; Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502.) The dispositive question for the court is whether a reasonable factfinder could conclude that the published statements imply a provably false factual assertion. (Id., 497 U.S. at p. ----, 110 S.Ct. at p. 2707.) ² The answer to that question is determined by applying the "totality of circumstances" test--a review of the meaning of the language in context and its susceptibility of being proved true or false. (Ibid; see also 497 U.S. at p. ----, 110 S.Ct. at p. 2709 (dis. opn. of Brennan J.).)

Turning to the relevant circumstances herein, plaintiff essentially asserts the publication contained three factual statements: (1) the headline, "Students terrorize Moyer"; (2) "Mr. Moyer is a babbler...."; and (3) "he is the worst teacher at FHS." Thus, the narrow issue before this court is whether these statements can reasonably be understood to state actual facts about plaintiff. In determining that issue, we consider the nature and meaning of the language used, including the verifiability of the statements, and the context in which the statements appeared. Viewed through that analytical prism, we are impelled to conclude that the statements are not actionable.

As to the third or "worst teacher" statement, there is no factual assertion capable of being proved true or false. Clearly, the statement is an expression of subjective judgment by the speaker. The full text of the sentence confirms that the statement was simply an expression of anger or disgust on the student-speaker's part. The statement contains no verifiable facts and is clearly protected under the First Amendment. (See, e.g., Botos v. Los Angeles County Bar Assn. (1984) 151 Cal.App.3d 1083, 1088-1090, 199 Cal.Rptr. 236 [rating judge "not qualified" by local bar association was a collective judgment of the judge's qualifications and not an actionable statement of fact].)

Nor does the second or "babbler" statement fall within the legal framework of actionable speech. A commonly accepted definition of "babbler" is one who utters meaningless or unintelligible sounds, who talks foolishly or incessantly. (See Webster's New Collegiate Dict. (1977) p. 81.) Obviously, the readers of the article would have understood that the word was not used literally but as a form of exaggerated expression conveying the student-speaker's disapproval of plaintiff's teaching or speaking style. The statement could not reasonably have been understood to be stating actual facts about plaintiff. (E.g., Letter Carriers v. Austin, supra, 418 U.S. at pp. 284-286, 94 S.Ct. at pp. 2781-2782 ["traitor" understood to mean that plaintiffs' actions were reprehensible, not that plaintiffs had committed treason]; Greenbelt Pub. Assn. v. Bresler, supra, 398 U.S. at pp. 13-14, 90 S.Ct. at pp. 1541-1542 ["blackmail" merely a vigorous epithet used to describe unreasonable negotiating position]; Buckley v. Littell (2d Cir.1976) 539 F.2d 882, 893, cert....