Rothman v. Jackson
| Decision Date | 01 October 1996 |
| Docket Number | No. B092937,B092937 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 65 USLW 2319, 96 Cal. Daily Op. Serv. 7350, 96 Daily Journal D.A.R. 12,054 Barry K. ROTHMAN, et al., Plaintiffs and Appellants, v. Michael JACKSON, et al., Defendants and Respondents. |
Wylie A. Aitken, Darren O. Aitken, Santa Ana, and Herbert Hafif, Claremont, for Plaintiffs and Appellants.
Kinsella, Boesch, Fujikawa & Towle, Dale F. Kinsella, Catherine H. Coleman, Alan R. Kossoff, Katten, Muchin, Zavis & Weitzman, Katten, Muchin & Zavis, Mark A. Wooster, Zia F. Modabber and E. Randol Schoenberg, Los Angeles, for Defendants and Respondents.
Barry K. Rothman and the Law Offices of Barry K. Rothman (hereafter, collectively, "Rothman") appeal from judgments of dismissal entered in favor of Michael Jackson, MJJ Productions, Inc., (hereafter, collectively, "Jackson"), Bertram Fields, the Law Offices of Greenberg, Glusker, Fields, Claman & Machtinger ("Fields"), Anthony Pellicano and the Pellicano Investigative Agency ("Pellicano") in Rothman's action for defamation, tortious interference with business relationships and intentional infliction of emotional distress. The judgments were entered after the defendants' demurrers were sustained without leave to amend. The demurrers were sustained as to all causes of action solely on the ground of the litigation privilege in Civil Code section 47(b). 1
We reverse. The challenged statements were made by the defendants in a press conference, and not in any context which the litigation privilege exists to protect. The privilege in section 47(b) does not apply to the statements made in this case.
The relevant facts in this case are taken from Rothman's complaint and are deemed to be true. (See Moore v. Conliffe (1994) 7 Cal.4th 634, 638, 29 Cal.Rptr.2d 152, 871 P.2d 204.) In July of 1993, Rothman was retained by Mr. C. and his son, a minor, to seek redress against the popular singer, Michael Jackson, for alleged torts against the boy. Rothman contacted Jackson and began to negotiate on behalf of the C. family, but did not immediately file a lawsuit, as the family wished the matter kept confidential.
While negotiations were proceeding, a psychological evaluation of the boy, which had been filed with the Los Angeles County Department of Children's Services, as required by California's child abuse reporting laws (§ Pen.Code, § 11164 et seq.), was "leaked" by a person or persons unknown. However, no claim has been made that Rothman or his clients were responsible for the leak. In any event, whoever caused the leak, its result was what Rothman characterizes as a "firestorm" of publicity, for Jackson is a celebrity among celebrities, and the charges contained in the psychological evaluation were sensational.
The defendants responded to this negative public exposure by calling a press conference on August 29, 1993, and by making other statements to the media thereafter, in which the defendants not only denied the charges against Jackson, but made countercharges that Rothman and his clients had knowingly and intentionally made false accusations against Jackson in order to extort money from him. Extortion is, of course, a crime (Pen.Code, §§ 518 et seq.), and the charge was inevitably damaging to Rothman's professional reputation. Moreover, as an additional consequence of the extortion charges, Rothman felt compelled to withdraw from his representation of the C. family, causing him significant economic damage, as the C.'s eventually retained other counsel who negotiated a settlement with Jackson that was never disclosed to the public, but was reputed to be over $25 million.
On July 29, 1994, Rothman filed his original complaint for conspiracy to interfere with a business relationship, defamation and intentional infliction of emotional distress. Demurrers were sustained with leave to amend as to all causes of action except conspiracy. The first amended complaint was filed on December 21, 1994. Demurrers filed on January 25, March 14 and March 15, 1995 were sustained without leave to amend. All parties stipulated to the sustaining of the demurrer solely on the ground of the litigation privilege (§ 47(b)), so the issue of privilege could be resolved as soon as possible. Subsequent motions for a new trial were denied. This timely appeal followed.
Rothman contends the trial court erred in sustaining the defendants' demurrer on the ground of the litigation privilege set forth in section 47(b), as that privilege does not protect statements to nonparticipants in the litigation, and, in particular, does not protect the statements to the media made in this case.
On appeal of a judgment of dismissal following the sustaining of a demurrer, the appellate court assumes the truth of all properly pleaded material allegations of the complaint and gives the complaint a reasonable interpretation by reading it as a whole and its several parts in context. (Moore v. Conliffe, supra, 7 Cal.4th at p. 638, 29 Cal.Rptr.2d 152, 871 P.2d 204; Silberg v. Anderson (1990) 50 Cal.3d 205, 210, 266 Cal.Rptr. 638, 786 P.2d 365.) The interpretation of section 47(b) is a pure question of law
which we review [49 Cal.App.4th 1140] independently. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-801, 35 Cal.Rptr.2d 418, 883 P.2d 960 []; Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93, 3 Cal.Rptr.2d 27 [].)
Defamation consists of false and unprivileged written, oral or recorded publications which expose the defamed person to hatred, contempt, ridicule or obloquy or cause the person to be shunned or avoided or injured in his or her occupation (§ 45, defining libel), or which charge the person with crime, suggest that the person has an infectious or loathsome disease or is impotent or unchaste, tend to injure the person in his or her business or profession, or otherwise cause actual damage (§ 46, defining slander). It is undisputed that the statements alleged in this case fall within the above definitions. In any event, the sole basis upon which the defendants' demurrers were sustained was that the statements--whatever their nature--were absolutely privileged under section 47(b). Thus, the sole issue on appeal is whether that privilege was correctly applied.
The general principles governing the application of the litigation privilege are familiar. The privilege applies to any publication or other communication required or permitted by law in the course of a judicial or quasi-judicial proceeding to achieve the objects of the litigation, whether or not the publication is made in the courtroom or in court pleadings, and whether or not any function of the court or its officers is involved. (Moore v. Conliffe, supra, 7 Cal.4th at p. 641, 29 Cal.Rptr.2d 152, 871 P.2d 204; Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365; Albertson v. Raboff (1956) 46 Cal.2d 375, 380-381, 295 P.2d 405.) The privilege also applies to statements made in dialogues preliminary to litigation. (Rubin v. Green (1993) 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) The privilege, if applicable, would preclude not only a defamation action, but also any actions by Rothman for intentional interference with existing and prospective economic relationships (Pacific Gas Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1123, 1132, 270 Cal.Rptr. 1, 791 P.2d 587; Silberg v. Anderson, supra, 50 Cal.3d at p. 215, 266 Cal.Rptr. 638, 786 P.2d 365) and intentional infliction of emotional distress (Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal.Rptr. 143, 696 P.2d 637; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 579, 131 Cal.Rptr. 592). Only malicious prosecution actions are exempt from section 47(b). (Rubin v. Green, supra, 4 Cal.4th at p. 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044; Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 771, 234 Cal.Rptr. 653.)
The privilege is generally described as applying to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365; Susan A. v. County of Sonoma, supra, 2 Cal.App.4th at p. 93, 3 Cal.Rptr.2d 27.) The Supreme Court has characterized the third prong of the foregoing test, the requirement that a communication be in furtherance of the objects of the litigation, as being "simply part of" the fourth, the requirement that the communication be connected with, or have some logical relation to, the action. (Silberg v. Anderson, supra, 50 Cal.3d. at pp. 219-220, 266 Cal.Rptr. 638, 786 P.2d 365.) The high court has specifically disapproved any interpretation of the "furtherance" requirement as a test of the motives, morals, ethics or intent of the person claiming the privilege. (Id. at p. 220, 266 Cal.Rptr. 638, 786 P.2d 365.) Statements to nonparticipants in the action are generally not privileged under section 47(b), and are thus actionable unless privileged on some other basis. (Id. at p. 219, 266 Cal.Rptr. 638, 786 P.2d 365; Susan A. v. County of Sonoma, supra, 2 Cal.App.4th at pp. 93, 95-96, 3 Cal.Rptr.2d 27; The question whether the litigation privilege covered statements which were made to the press during judicial or quasi-judicial proceedings has been directly ruled upon by the...
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