Rosenaur v. Scherer
| Decision Date | 06 March 2001 |
| Docket Number | No. C032607.,No. C033331.,C032607.,C033331. |
| Citation | 105 Cal.Rptr.2d 674,88 Cal.App.4th 260 |
| Court | California Court of Appeals Court of Appeals |
| Parties | David ROSENAUR, Plaintiff and Appellant, v. Walt SCHERER et al., Defendants and Respondents. |
Cynthia J. Larsen, James E. Houpt, and Christopher E. Krueger, Sacramento, Orrick, Herrington, & Sutcliffe, LLP, Los Angeles, for Defendants and Respondents.
Following a bitterly-fought local initiative campaign concerning the commercial development of certain real property in Loomis, plaintiff David Rosenaur sued his political opponents—defendants, Walt Scherer, Lorell Long, Walt Scherer For Town Council, and the Loomis Community Action Committee—for defamation and slander of title. The suit was based on a heated exchange at a shopping center in which one of the defendants purportedly called plaintiff a "thief and on statements in defendants' campaign literature that the property at issue was owned by "a partnership of speculators based in Los Angeles." The trial court granted defendants' motion to strike the complaint pursuant to Code of Civil Procedure section 425.16,1 commonly known as the "anti-SLAPP statute,"2 and awarded them attorney fees.
Plaintiff appeals. He claims that he made out a prima facie claim of defamation sufficient to survive a motion to strike under section 425.16.
We shall affirm the judgment. First, "[w]hether published material is reasonably susceptible of an interpretation which implies a provably false assertion of fact— the dispositive question in a defamation action—is a question of law for the court." (Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1500, 39 Cal. Rptr.2d 848.) "That which might be a statement of fact under other circumstances may become a statement of opinion [that does not state an actual fact] when uttered in the political context." (Desert Sun Publishing Co. v. Superior Court. (1979) 97 Cal.App.3d 49, 52, 158 Cal.Rptr. 519.) In this case, in the context of a heated confrontation at a shopping center between political opponents, a foe's charge of "thief would be reasonably interpreted as loose figurative language and hyperbole, not a claim that the plaintiff actually had a criminal past. (See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 20, 110 S.Ct. 2695, 2706, 111 L.Ed.2d 1, 19.) As distasteful as such a charge is, "[o]ur political history reeks of unfair, intemperate, scurrilous and irresponsible charges" (Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal.App.3d at p. 51, 158 Cal.Rptr. 519), which are nonetheless protected by the First Amendment when no one could reasonably interpret them as a defamatory fact. (Milkovich v. Lorain Journal Co., supra, 497 U.S. at p. 20, 110 S.Ct. at pp. 2706-2707, 111 L.Ed.2d at p. 19.)
Second, defendants did not act with the requisite malice in connection with their campaign literature's charge that plaintiff was in partnership with speculators—that is, other investors—in Los Angeles. Admittedly, the campaign literature was based on information from a 1986 amended statement of partnership, which no longer reflected the current slate of partners that owned the property. But defendants did not act with malice by relying on the publicly-filed partnership statement: It was of a type expressly intended to inform the public of the names of partnership members; it was the most recent such document on file for the partnership; it could be amended only by an entity over which plaintiff had exclusive control; and nothing in the record suggests defendants harbored any doubts as to the accuracy of the information it contained.
Plaintiff also challenges the court's award of attorney fees to defendants pursuant to section 425.16, subdivision (c). He contends that defendants are not entitled to recover attorney fees because defense counsel agreed to a partial pro bono fee arrangement that relieved defendants but not their insurers of their obligation to satisfy counsel's accrued attorney fees. Because neither the plain language of section 425.16, subdivision (c), nor the policies underlying the anti-SLAPP statute justifies denying a prevailing defendant the right to recover attorney fees on the ground that he was represented pro bono, plaintiffs argument fails.
We shall affirm both the judgment and the award of attorney fees.
The property at issue is a 64-acre parcel of raw land, located at the intersection of Interstate 80 and Horseshoe Bar Road in the Town of Loomis. At all relevant times, this property has been owned by a California general partnership called Loomis Acres.
Plaintiff, a Placer County resident, acquired an interest in the property in 1984 when his company, Export International, Inc. ("Export"), became a partner in Loomis Acres. At that time, the other partners in Loomis Acres were Herbert Kern and Western Dominion Corp., a California corporation.
An Amended Statement of Partnership for Loomis Acres was recorded in Placer County in January 1986. That document identified the partners of Loomis Acres as plaintiff, Export, Herbert Kern, and Western Dominion Corporation. It also stated that Export was the sole managing partner and the only partner capable of executing documents on behalf of Loomis Acres.
The Amended Statement of Partnership, as recorded, did not show that Western Dominion Corporation and Herbert Kern had sold virtually all of their interest to Export pursuant to written agreements executed the previous month, leaving the parties' respective ownership interests in Loomis Acres as follows:
Export, 99.97 percent;
Plaintiff, .01 percent;
Western Dominion, .01 percent; and
Herbert Kern, .01 percent.
Since he first acquired an interest in the property, plaintiff has endeavored to change its zoning designation so as to permit commercial development on the property. Specifically, plaintiff hoped to build a retail village or shopping center in a project that came to be known as "Turtle Island."
Defendants Walt Scherer (a former Loomis mayor and town councilman) and Lorell Long were among those residents concerned that the Turtle Island project might be incompatible with Loomis's small town, semi-rural character.
In 1998, having failed to obtain from the Town of Loomis the zoning changes required for the project, plaintiff arranged to place an initiative on the ballot for the November 3, 1998, general election.
Designated Measure F, the initiative's purpose was to allow the Loomis Acres property to be used for commercial purposes. According to the sample ballot, enactment of Measure F would (among other things) amend the Loomis General Plan and Zoning Ordinance by adding a new "highway commercial" designation, rezone the Loomis Acres property as highway commercial, and allow a wide variety of commercial uses for property zoned as highway commercial, including for retail space, offices, and nightclubs.
There was vocal opposition to Measure F. Scherer and Long were among those concerned that Measure F neither required plaintiff to build any particular project nor prevented his subsequent sale of the property to someone who had a different project in mind.
In mid-October 1998, after conferring with Scherer, Long searched public documents to discover whether plaintiff might have partners in Loomis Acres to whom he had to answer or who might have control over plaintiffs development decisions.
After confirming from the Placer County Assessor's records that Loomis Acres owned the property, Long found in the records of the Placer County Recorder's office the January 1986 Amended Statement of Partnership for Loomis Acres. It identified its partners as plaintiff, Export, Herbert Kern, and Western Dominion Corporation. When Long reviewed the documents filed with the California Secretary of State concerning Western Dominion Corporation and Export, she found (1) a 1983 Statement by Domestic Stock Corporation for Western Dominion Corporation, identifying its officers as Herbert Kern and Massimo Scaglioni, both of whom listed addresses in Encino, California (located in Los Angeles County); (2) a 1992 Statement by Domestic Stock Corporation for that company, declaring that there had been no change in the information previously filed with the Secretary of State; and (3) a 1991 Statement by Domestic Stock Corporation for Export, identifying its officers as plaintiff, George Johnston, and Barry Gladstone, all of whom gave their address as Rancho Cordova.
Long obtained certified copies of these documents, and showed them to Scherer. Based on proposed agreements that plaintiff had sent in 1998 to the Town of Loomis, Scherer also confirmed that the property was still owned by Loomis Acres. Believing, as a result of Long's research, that plaintiff was "in partnership with a Southern California corporation and an individual in Southern California," Long and Scherer agreed with others that "voters should know that [the plaintiff] probably had to answer to others for his development plans."
As a result of their research, Scherer, Long, and others drafted a campaign flyer that stated that it was paid for by defendant Loomis Community Action Committee and urged readers to "Vote NO on Measure F" (the Community Action Committee flyer).3 One page of the Community Action Committee flyer contained the following text: ...
To continue reading
Request your trial
-
McVey v. Day, B205465 (Cal. App. 12/23/2008)
...public figure, he or she must also plead and prove actual malice. (Vogel v. Felice, supra, 127 Cal.App.4th at p. 1017; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 274; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.) "[T......
- Rosenaur v. Scherer