Okun v. Superior Court

• Decision Date: 15 June 1981
• Citation: 175 Cal.Rptr. 157,629 P.2d 1369,29 Cal.3d 442
• Court: California Supreme Court
• Parties: , 629 P.2d 1369 Erwin OKUN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MAPLE PROPERTIES, Real Party in Interest. Betty H. HARRIS et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; MAPLE PROPERTIES, Real Party in Interest. L.A. 31341, L.A. 31342.

Page 157

175 Cal.Rptr. 157

29 Cal.3d 442, 629 P.2d 1369

Erwin OKUN, Petitioner, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

MAPLE PROPERTIES, Real Party in Interest.

Betty H. HARRIS et al., Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

MAPLE PROPERTIES, Real Party in Interest.

L.A. 31341, L.A. 31342.

Supreme Court of California, In Bank.

June 15, 1981.

Rehearing Denied July 15, 1981.

Yusim, Cassidy, Stein & Hanger, Robert T. Hanger, Alice Huston, Roger Bentley, Beverly Hills, Paul P. Selvin and Selvin & Weiner, Los Angeles, for petitioners.

Stephen V. Bomse, Rebecca S. Eisenberg, Katherine H. Crocker, Heller, Ehrman, White & McAuliffe, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, San

[629 P.2d 1372] Francisco, and Fred Okrand, Los Angeles, as amici curiae on behalf of petitioners.

No appearance for respondent.

Levy & Norminton, Charles M. Levy and Thomas M. Norminton, Beverly Hills, for real party in interest.

NEWMAN, Justice.

The complaint here alleges libel and slander during defendants' (petitioners') successful campaign for repeal of an ordinance that would have enabled plaintiff (real party in interest) to build a large condominium project in Beverly Hills. Our reading of the complaint persuades us that the publications in question could not reasonably be found libelous and that plaintiff's pleading of a conspiracy to slander is deficient.

The lawsuit was begun in September 1979. A first amended complaint names Betty Harris, Joann Ruden, Erwin Okun, and Does 1 through 1,000 as defendants and alleges 10 causes of action against various combinations of those defendants. Demurrers by Harris, Ruden, and Okun were sustained as to the first, seventh, eighth, ninth, and tenth causes, overruled as to the second, third, fifth, and sixth causes, and ordered off calendar as to the fourth cause (because it names only Doe defendants).

In response to the present petitions, we issued alternative writs of mandate inviting plaintiff and the trial court to show cause why the demurrers to the second, third, fifth, and sixth causes of action should not be sustained.

FACTUAL CONTEXT OF THE ALLEGED DEFAMATION

The first cause of action is not directly before us; but its introductory paragraphs, setting out background facts, are incorporated into each of the four causes whose sufficiency we now weigh. The paragraphs allege:

Plaintiff is a limited partnership that purchases, manages, develops, and sells real property. In 1977 it bought 10 acres of Beverly Hills property with a view to building condominiums. The property, then under a building moratorium pending determination of zoning, adjoined city-owned parcels. Plaintiff had discussed with city officials the possibility of a land exchange so that plaintiff and the city each would own contiguous land. The discussions concluded successfully on November 28, 1978, when the city council agreed to the land exchange and adopted a zoning ordinance allowing plaintiff to construct condominiums on all its newly acquired property.

To prevent construction, defendants circulated and then filed a petition to allow the electorate to reject or accept the ordinance. Consequently the council placed it on the ballot for an election held March 9, 1979. It was rejected and thus repealed. Defendants were "motivated by ill will toward (plaintiff)" and "campaigned against the passage of Proposition B in order to stop (plaintiff's) condominium project, among other ways, by defaming (plaintiff). Said defendants variously and falsely accused (plaintiff) of corrupt and collusive activities in connection with City officials."

SECOND CAUSE OF ACTION

The second cause alleges that Harris and Does 101 through 200 wrote this letter to the editor of the Los Angeles Times, wherein it was published on January 28, 1979:

"Setting the Record Straight

"The article regarding a controversial land swap between the Beverly Hills City Council and a developer of luxury condominiums ('Land Swap Stirs Up Beverly Hills' by Sam Kaplan, Dec. 26) missed the point entirely.

"To set the record straight:

"While the area in contention adjacent to Beverly Hills' civic center is known as the industrial area, it also houses the city's vital municipal services facilities. It is the site of the city's refuse transfer station, vehicle maintenance garages and all the other indispensable operations that make a city function. It is also the site of a water treatment plant that the city council abandoned in 1976.

"This action was followed by the council's abandoning the city's own water wells in the midst of the recent drought. It was this incredible move that caused a number of citizens to become suspicious of the council's motives. Beverly Hills residents were thus forced to become completely dependent upon one very expensive source of water, that supplied by the Metropolitan Water District of Southern California. Even the MWD's general manager advised the city against this decision.

"Nevertheless, this was done despite the fact that in 1974 the voters of Beverly Hills had passed, by a two-thirds majority, a $3.75 million bond issue to refurbish the city's water wells and treatment facilities. The only council member opposed to the bond issue and retention of the city's wells was Richard Stone, an attorney.

"Mysteriously, one week after the voters approved the refurbishing of their water system, the city announced that its cost projections to revitalize the wells were $5 million short. Amazingly, a year later the claim went up to $12 million more than the voter-approved bonds. But, without asking the voters again, in December, 1976, the council closed down the wells and sold off the land on which they were located.

"Not until April 12, 1977, did Richard Stone, at that time the mayor of Beverly Hills, reveal that David Rowen, representing a developer, had become a client of Stone's. The abandoned treatment plant is now earmarked for the developers in a landswap deal."

Further it is alleged: The letter referred to plaintiff as the "developer" (see Code Civ.Proc. § 460) and was intended and reasonably understood to mean that plaintiff "had (a) conspired for a period of years with Councilman Stone to cause the City to abandon its water well system in order to make the water treatment plant obsolete and allow (plaintiff) to acquire the property on which the water treatment plant was located for (plaintiff's) private gain and (b) conspired to commit, and did commit, the crimes of bribery and corruption." The letter "as applied to (plaintiff), is false" and omits facts that, if included, "would not have caused the readers ... to believe that plaintiff had acted as intimated in the (letter)." Harris wrote the letter "either intentionally knowing it was false or with reckless disregard for" truth. She did it "to injure (plaintiff) and stop any development by it" and was "motivated by malice and ill will toward plaintiff."

Was the letter libelous? Clearly it permits a nondefamatory interpretation. The facts that in April 1977 plaintiff "had become a client of (council member) Stone" (who in 1974 had opposed retention of the city's wells), that in 1976 the wells and water treatment plant were abandoned, and that in 1979 the treatment-plant site was "earmarked for the developers (plaintiff) in a landswap deal" do not necessarily imply wrongdoing. There is no explicit statement that Stone had represented plaintiff for any substantial period before April 1977 or was improperly influenced by plaintiff in his handling of city affairs.

Nonetheless a writing's susceptibility to innocent meaning does not in itself preclude a finding that an ordinary reader would understand it in a libelous sense. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 546-551, 343 P.2d 36; see Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803, 805, 163 Cal.Rptr. 628, 608 P.2d 716.) To show libelous meaning, plaintiff alleges by way of innuendo that the letter was understood to mean that plaintiff "conspired" with Stone to cause the city to abandon its wells so as to make the treatment plant obsolete and allow plaintiff to acquire the site "for private gain," and that plaintiff "conspired to commit, and did commit, the crimes of bribery and corruption." However, "it is not the purpose of an innuendo to 'beget an action', and the meaning of the language complained of may not be enlarged or extended thereby. (Citations.) In other words, it is the office of the innuendo to merely explain or interpret, without enlarging, the alleged libelous publication." (Bates v. Campbell (1931) 213 Cal. 438, 442-443, 2 P.2d 383.)

Here, plaintiff's innuendo allegations are not supported by the letter's words. The implications deprecatory to plaintiff are mere opinion, not libelous. "An essential element of libel ... is that the publication in question must contain a false statement of fact.... This requirement ... is constitutionally based. The reason for the rule, well stated by the high court, is that '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.' (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340, 94 S.Ct. 2997, 41 L.Ed.2d 789, fn. omitted ....) (P) The critical determination of whether the allegedly defamatory statement constitutes fact or opinion is a question of law. (Citations.) The distinction frequently is a difficult one, and what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole. Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use...