Nizam-Aldine v. City of Oakland

• Decision Date: 15 July 1996
• Docket Number: No. A065678,NIZAM-ALDIN,P,A065678
• Citation: 54 Cal.Rptr.2d 781,47 Cal.App.4th 364
• Parties: , 96 Cal. Daily Op. Serv. 5250, 96 Daily Journal D.A.R. 8503 Zuhayrlaintiff and Respondent, v. CITY OF OAKLAND, Defendant and Appellant. Al MASSO, Plaintiff and Respondent, v. CITY OF OAKLAND, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 781

54 Cal.Rptr.2d 781

47 Cal.App.4th 364, 96 Cal. Daily Op. Serv. 5250,

96 Daily Journal D.A.R. 8503

Zuhayr NIZAM-ALDINE, Plaintiff and Respondent, v. CITY OF OAKLAND, Defendant and Appellant.

Al MASSO, Plaintiff and Respondent, v. CITY OF OAKLAND, Defendant and Appellant.

No. A065678.

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

July 15, 1996.

Review Denied Nov. 13, 1996.

Jayne W. Williams, City Attorney, Randolph W. Hall, Assistant City Attorney, Robert J. Graham, Supervising Trial Attorney, John E. Carne, Paul D. Fogel, John F. Eyrich, Oakland, for Appellant City of Oakland.

Charles O. Morgan, Jr., Paul Kleven, San Francisco, for Respondents Zuhayr Nizam-Aldine and Al Masso.

HAERLE, Associate Justice.

I. INTRODUCTION

The City of Oakland (the City) appeals a judgment entered pursuant to a jury verdict holding the City liable for defamation and for placing plaintiffs in a false light. Plaintiffs and respondents, Zuhayr Nizam-Aldine (Aldine) and Al Masso (Masso) are licensed civil engineers allegedly accused by the City of conducting inaccurate and fraudulent boundary surveys of three parcels of property located in the Oakland Hills. The jury awarded Aldine $650,000 and Masso $125,000. The City contends the trial court committed constitutional error by instructing the jury that the City had the burden of proving that the allegedly defamatory statements were true.

We conclude the allegedly defamatory statements at issue in this case pertained to a matter of public interest. Therefore, the jury instruction requiring the City to prove these statements true violated the City's First Amendment rights. Because the erroneous instruction was prejudicial, we reverse the judgment. ¹

II. STATEMENT OF FACTS

A. Background: The 1927 Map and the 1954 Map

In 1980 Aldine purchased two lots in the Forestland Manor subdivision of the Oakland Hills, one located on Westover Drive and the other on Girvin Drive. Aldine performed retracement surveys on the lots in order to locate the original boundary lines. To conduct his surveys, Aldine relied primarily on a 1927 subdivision tract map (the 1927 map) that was referred to in the grant deeds for his property.

The 1927 map was prepared by the original subdivider and was filed and recorded with the County Recorder in 1928. The 1927 map contains dots which show the location of concrete monuments used by the original surveyors to measure boundary lines in the subdivision, and contains the following certification, signed by the surveyor: "I hereby certify that the subdivision shown on this map is made from my own survey of the ground, and that the monuments are of the nature and in the locations shown on the map."

Prior to conducting his surveys, Aldine reviewed additional documents and maps pertaining to the subdivision. According to Aldine, his research uncovered no reference to a monument map that had been prepared by the City in 1954 (the 1954 map). Unlike the 1927 map, the 1954 map was not referenced in Aldine's property deeds. Further, the City concedes the 1954 map was filed in the wrong place in the County Recorder's office.

The 1954 map was based on surveys of Forestland Manor performed by the City from 1948 to 1954. The City claims that during these surveys it was unable to locate several allegedly crucial monuments referred to in the 1927 map. Therefore, the City concluded that original "control" and "corner" monuments were not set for major portions of the subdivision at the time the 1927 survey was conducted. Rather than placing monuments in positions shown on the 1927 map, the City set its own control monuments and plotted the new monument positions on the 1954 map.

B. The Dispute

Aldine based his retracement surveys on monuments which he concluded were either originals or perpetuations of original monuments reflected on the 1927 map. Using these surveys, Aldine prepared plot plans which he submitted to the City along with building permit applications. Aldine's plans and applications were approved by the City. Construction, however, did not commence for several years.

In 1986 or 1987, Tami Genton, Aldine's then-wife, purchased both lots from Aldine and also purchased an adjacent lot on Westover with the intent to build homes on each lot. Genton hired a general contractor and relied on Aldine to facilitate the permit process. Aldine also did soils reports, prepared updated plot plans for the first two properties and a new plan for the third lot, and performed all the survey work. The City approved the updated plans and issued new building permits. There was also evidence that City Inspector Steve Lewis inspected and approved the actual locations where the foundations were to be poured.

News of Genton's development plan for the Westover lots was not well received by neighbors Nellie and Curtis Ingraham who made several complaints to the City, challenging various aspects of Genton's plan. As a result, the City issued a stop work notice and shut down work at the Westover sites on October 11, 1987. After discussing the Ingraham's complaints with the City, Aldine asked Mohammed Aslam, a colleague and civil engineer, to confirm the accuracy of his surveys. Using 1927 monuments, Aslam confirmed Aldine's measurements were accurate.

City Surveyor Gary Faught inspected the Westover foundations. Faught did not use any maps to conduct this survey but instead based his measurements on a City monument designated as "A12" on the City's 1954 map (the A12 monument). Faught concluded the Westover foundations encroached 7-12 feet into the public-right-of-way.

The City asked Genton to obtain a new survey from an independent surveyor. Genton hired respondent Masso. Like Aldine, Masso used the 1927 map to conduct his survey. ² Masso was not told about the 1954 map and found no references to it in the records and documents he reviewed. With no assistance from Aldine, Masso also located and relied on monuments he concluded were originals or perpetuations of originals reflected in the 1927 map. Although his measurements were not identical with Aldine's, Masso concluded that neither the Westover nor Girvin foundations encroached on the City's right of way.

While Masso was conducting his survey, the City informed Aldine that the 1927 map had been "superseded" by several other maps. Aldine hired a private surveyor named Gil Hayes to help him respond to the City's contention. Hayes contacted his acquaintance, City Surveyor Gary Faught. Faught gave Hayes a copy of the 1954 map and told Hayes no monuments were set at the time of the original survey in 1927. Faught also told Hayes that the A12 monument was located in the area where he would be surveying. Hayes admitted at trial that his own research had not uncovered any reference to the 1954 map.

Hayes used the 1954 map to do his field work. He then told Aldine the 1927 map was superseded and that the 1927 monuments Aldine claimed to have relied upon did not exist. Hayes confirmed Faught's finding that the Westover foundations encroached into the City right-of-way. Hayes also surveyed the Girvin lot and concluded that foundation encroached as well. The City stopped work at the Girvin site on November 19, 1987.

According to Aldine, when he returned to the lots after Hayes had been there, all of the 1927 monumentation was gone, leaving behind holes in the street pavement and at the corners of the lots. However, Aldine saw the A12 monument for the first time; it was painted bright red and located directly in front of one of the Westover lots. Aldine, Masso, and City inspector Steve Lewis had each been to the property prior to Hayes's visit and none had previously seen the A12 monument. ³

C. The Allegedly Defamatory Statements

The City continued to maintain that the 1927 map was not valid. Aldine and Masso both claim City officials threatened to report them to the California Board of Registration for professional Engineers and Land Surveyors (Board of Engineers) for refusing to acknowledge the validity of the 1954 map and that City employees made a series of defamatory statements about their surveys. Aldine and Masso filed separate complaints against the City and three individuals employed by the City (Faught, Matsumoto and Wong) alleging defamation, false light, and intentional interference with prospective economic advantage. ⁴ At the consolidated trial, Aldine and Masso (jointly, respondents) supported their defamation claims by presenting evidence of statements made not just by the named individual defendants, but also by other employees of the City.

1. Statements by Named Defendants Wong, Faught and Matsumoto

City Engineer Joseph Wong sent a letter dated December 23, 1987 to Aldine which stated that Aldine's grading work "substantially deviat[ed]" from approved plans and that Aldine had used "improper surveying procedures." Wong was also accused of telling Curtis Ingraham, the disapproving neighbor, that Aldine's survey was improper and violated the Land Surveyor's Act and that the Westover foundations encroached on the City's right-of-way.

On March 7, 1988, Wong sent a letter to Genton's attorney enclosing an inter-office report prepared by Gary Faught. Wong's letter stated that Aldine and Masso claimed they relied on original 1927 monuments to conduct their surveys, but "that the monuments they refer to were never set in the original tract." Faught's report also stated the monuments had never been set, and that the City's position was not "that its monuments take precedence over those set forth in the original subdivision map, but that the latter never existed." Faught stated the 1954 map was the only monumented map of record.

City Engineer Tad Matsumoto allegedly told both Aldine and Masso that the City would report them to the Board of Engineers if they refused to change their surveys. Masso testified that Matsumoto characterized Aldine's survey as "either fabrication or fraud." Matsumoto denied...