Neary v. Regents of University of California

• Decision Date: 26 September 1986
• Citation: 185 Cal.App.3d 1136,230 Cal.Rptr. 281
• Court: California Court of Appeals Court of Appeals
• Parties: , 34 Ed. Law Rep. 840 George NEARY, Plaintiff and Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents. A028496.

Page 281

230 Cal.Rptr. 281

185 Cal.App.3d 1136, 34 Ed. Law Rep. 840

George NEARY, Plaintiff and Appellant, v. REGENTS OF the UNIVERSITY OF CALIFORNIA et al., Defendants and Respondents.

A028496.

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

Sept. 26, 1986.

As Modified Oct. 22, 1986.

Review Denied Dec. 17, 1986.

Keker & Brockett, John W. Keker, David J. Meadows, San Francisco, Kong & Yun, Clement J. Kong, Sacramento, for plaintiff and appellant.

Glynn & Harvey, Leila H. Moncharsh, San Francisco, for defendants and respondents.

ROUSE, Acting Presiding Justice.

Plaintiff, George Neary, appeals from a judgment entered against him on his complaint for libel naming as defendants the Regents of the University of California (university) and individual veterinarians associated with the university, and alleging that defendants defamed him in a report analyzing the reasons for the death of many of plaintiff's cattle. Defendants were granted summary judgment on the ground that publication of the report was absolutely privileged under Civil Code section 47, subdivision 1. ¹

The parties have agreed that, for the purpose of the motion for summary judgment, the following facts are undisputed: In July 1978 plaintiff bought a herd of 850 pregnant heifers which he then moved from Klamath Falls, Oregon, to his own ranch near Chico, California. To prevent the spread of scabies, from December 18 through 23, 1978, the California Department of Food and Agriculture (CDFA) sprayed the herd with the chemical toxaphene. In January 1979, when the heifers began calving, at least 95 of them and over 400 of their calves died.

The parties are in disagreement as to how the university came to be involved in plaintiff's cow problem. In late February 1979, defendant Richard McCapes, associate dean of the veterinary school at University of California, Davis (UC Davis), was approached by employees of CDFA and asked if "the school would consider becoming involved in determining the cause of death of these cattle at the Neary Ranch." On February 22, 1979, a state assemblyman formally asked the university to investigate the problem. In any event, several of the individual defendants met with plaintiff at his ranch on March 2, 1979. Plaintiff contends that at that meeting he entered into an agreement with the veterinarians to pay for their professional services in investigating the reason for his cattle losses.

There was substantial press interest in the deaths of the Neary cows, much of it aroused by plaintiff himself, who made his story and his charges against the CDFA spraying widely available. Requests from individual journalists for copies of the university's report were directed both to plaintiff and to the university.

By May 11, 1979, the university had decided that when the veterinarians' report was completed it was subject to public disclosure as a document within the provisions of the California Public Records Act (Gov.Code, § 6251 et seq. (hereafter Public Records Act)). Prior to issuance of the report plaintiff unsuccessfully sought a temporary restraining order to prevent its public disclosure. The report was released June 14, 1979, and made available in its entirety to anyone requesting a copy.

On July 8, 1982, plaintiff filed an action for libel based on allegedly false statements contained in the report. Shortly before the matter was to be tried, defendants moved for summary judgment. Two motions to compel discovery were scheduled to be heard, as well as the motion for summary judgment.

By an order of June 8, 1984, defendants' motion for summary judgment was granted on grounds that publication of the report was absolutely privileged under section 47, subdivision 1. Judgment was entered on the same date. Plaintiff filed a timely notice of appeal. ² Plaintiff's motion for reconsideration was denied by an order of August 1, 1984. Plaintiff then filed a timely supplemental notice of appeal.

This case presents the question of whether disclosure by a state entity, a public university, of an internally generated document, which that entity believes to be subject to public disclosure under the Public Records Act, is a privileged publication under the absolute privilege created for official acts by section 47, subdivision 1.

I. Official Duty Privilege

Section 47, subdivision 1, provides that "A privileged publication or broadcast is one made--[p ] 1. In the proper discharge of an official duty." The privilege created by the section is an absolute privilege which is not vitiated by a publication made out of malice or with the intent to do harm. (Saroyan v. Burkett (1962) 57 Cal.2d 706, 709-710, 21 Cal.Rptr. 557, 371 P.2d 293; Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323, 116 Cal.Rptr. 781.)

The official duty privilege is unquestionably available to high-ranking state officials, such as the governor or individuals whose positions correspond to cabinet officers in the federal government. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 155, 185 Cal.Rptr. 244, 649 P.2d 886, quoting Kilgore v. Younger (1982) 30 Cal.3d 770, 778, 180 Cal.Rptr. 657, 640 P.2d 793.) Justifying the privilege is the strong public policy in favor of encouraging officials engaged in policy making to make such decisions free from concern that they will incur liability for torts, including defamation. (Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413, 134 Cal.Rptr. 402, 556 P.2d 764.) The official duty privilege has been extended to lower level state or local officials so long as the publication was made while the official was exercising his policy-making function and was acting within the scope of his official duties. (Royer v. Steinberg (1979) 90 Cal.App.3d 490, 501, 153 Cal.Rptr. 499 [privilege available to elected trustees of school district]; see also Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d at pp. 412-413, 134 Cal.Rptr. 402, 556 P.2d 764 [language suggesting county clerk could avail himself of the official duty privilege].)

Elmer Learn is the executive vice chancellor at UC Davis and reports through the president of the university to its regents, the named defendants. According to Learn's affidavit, it was he who decided, on advice of counsel, that the report once completed was subject to public disclosure under the Public Records Act. In his affidavit Learn described his job duties as the "promulgation and interpretation of policies and procedures within the guidelines established by the Regents and the President." He also asserted that his decision to release the report was "a policy decision."

Apparently, there was no disagreement between the parties that Learn's decision to release the report was a decision within the scope of his duties. However, the parties disagree as to whether Learn occupies a position to which the privilege attaches and, assuming he does, whether his decision to disclose the report was an exercise of his policy-making function.

Learn's position as vice chancellor at the university does not place him at the highest levels of state government. The university, however, is a constitutional department of state government. (Cal. Const., art. IX, § 9; Goldberg v. Regents of the University of California (1967) 248 Cal.App.2d 867, 874, 57 Cal.Rptr. 463; 30 Ops.Cal.Atty.Gen. 162, 166 (1957).) Its regents possess such general rule and policy-making powers as are necessary to control the university's operation. (Goldberg v. Regents of the University of California, supra, 248 Cal.App.2d at 874, 57 Cal.Rptr. 463.) To the extent, however, that Learn is the agent of the regents who occupy positions analogous to those of the school trustees in Royer, he may indeed fall into the category of a state official who engages in policy-making. (Royer v. Steinberg, supra, 90 Cal.App.3d 490, 501, 153 Cal.Rptr. 499.)

What is less clear is whether, in deciding to release the report, Learn was engaging in his policy-making function. In Sanborn, the California Supreme Court discussed when an official is engaged in exercising his policy making functions by reference to cases construing immunity for discretionary acts under Government Code section 820.2. (Sanborn v. Chronicle Pub. Co., supra, 18 Cal.3d 406, 413-415, 134 Cal.Rptr. 402, 556 P.2d 764.) To be engaged in exercise of his policy-making function the official must reach a basic policy decision, as distinct from an operational decision, after balancing risks and advantages. (Id., at 415, 134 Cal.Rptr. 402, 556 P.2d 764.) Accordingly, the Sanborn court found that discussions by a county clerk with "the public or press regarding the functioning of his office ... fall within the category of those routine, ministerial duties incident to the normal operations of that office." (Ibid.)

Summary judgment is properly granted if the affidavits and papers of the moving party would sustain a judgment in his favor and the party opposing the motion has failed to show by affidavit the existence of a triable issue of fact. (Cornelison v. Kornbluth (1975) 15 Cal.3d 590, 596, 125 Cal.Rptr. 557, 542 P.2d 981.) In ruling upon the motion the court may consider facts to which the parties have stipulated. (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176, 181, 89 Cal.Rptr. 737, 474 P.2d 689.) Affidavits in support of the motion are strictly construed (Miller v. Bechtel Corp. (1983) 33 Cal.3d 868, 874, 191 Cal.Rptr. 619, 663 P.2d 177), and thus, while they need not consist solely of evidentiary facts, such affidavits which merely state ultimate facts and conclusions of law will be insufficient. (See Colvig v. KSFO (1964) 224 Cal.App.2d 357, 364, 36 Cal.Rptr. 701.)

In their answer defendants contended that their publication was absolutely privileged under section 47. Accordingly, in Learn's affidavit in support of the motion for summary judgment he asserted the legal conclusion that his decision to release the report was a "policy decision" he made on behalf of the regents....