Savage v. Pacific Gas & Electric Co., No. AO57595

• Court: California Court of Appeals
• Writing for the Court: NEWSOM; STEIN
• Citation: 26 Cal.Rptr.2d 305,21 Cal.App.4th 434
• Parties: , 22 Media L. Rep. 1737 J.A. SAVAGE, Plaintiff and Appellant, v. PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Respondent.
• Docket Number: No. AO57595
• Decision Date: 27 December 1993

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26 Cal.Rptr.2d 305 21 Cal.App.4th 434, 22 Media L. Rep. 1737 J.A. SAVAGE, Plaintiff and Appellant,
v.
PACIFIC GAS AND ELECTRIC COMPANY, Defendant and Respondent. No. AO57595. Court of Appeal, First District, Division 1, California. Dec. 27, 1993.
Review Denied March 17, 1994.

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[21 Cal.App.4th 438] Scott L. Fielder, Bradlee S. Welton, Grass Valley, and Hugh B. Fielder, Visalia, for plaintiff and appellant.

Fredrick Baker, Sedgwick, Detert, Moran & Arnold, San Francisco, for defendant and respondent.

Peter Arth, Anne K. Mester, Helen W. Yee, Irene K. Moosen, San Francisco, for Public Utilities Commission, amicus curiae for appellant.

[21 Cal.App.4th 439] NEWSOM, Associate Justice.

This is an appeal from a judgment of dismissal entered upon separate orders granting a motion for judgment on the pleadings and a motion for summary adjudication.

A journalist who formerly covered energy matters in Northern California, J.A. Savage (hereafter appellant) filed the present action against Pacific Gas and Electric Company (hereafter PG & E), three PG & E executives, David Monfried, Richard Clarke, and Dick Davin, and certain other parties on March 4, 1988. In several causes of action, she charged that the defendants interfered with the pursuit of her profession as a journalist. Following certain preliminary motions and rulings, the parties entered into a stipulation whereby appellant dismissed the complaint against the three executives and PG & E acknowledged that the executives acted within the scope of their authority as managing agents for PG & E and consented to the filing of a second amended complaint. This amended complaint, filed October 3, 1990, alleged nine causes of action: (1) conspiracy to induce breach of contract, (2) intentional interference with economic relationships, (3) conspiracy to interfere with economic relationships, (4) tortious inducement

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of a breach of contract, (5) intentional infliction of emotional distress, (6) intentional interference with utility ratepayers' rights, (7) slander, (8) libel, and (9) injunctive relief.

PG & E responded by moving for judgment on the pleading with respect to the sixth, seventh, and eighth causes of action. In an order dated January 8, 1992, the court denied the motion as to the seventh cause of action for slander but granted it without leave to amend as to the sixth cause of action for intentional interference with utility rate-payers' rights and with ten days leave to amend as to the eighth cause of action for libel. Appellant did not choose to amend this cause of action.

PG & E next moved for a summary adjudication of the remaining causes of action, requesting a ruling that each cause of action "has no merit." The court granted the motion in an order dated March 6, 1992, and directed that judgment be entered "in accordance with the matters so adjudicated." Appellant moved for reconsideration. On April 17, 1992, the court denied the motion for reconsideration and entered judgment for the defendant.

In this appeal, appellant focuses her attack on the orders pertaining to the two causes of action for defamation and the cause of action for interference with ratepayers' rights. With respect to the latter, the California Public Utilities Commission appears as amicus curiae on appellant's behalf. We [21 Cal.App.4th 440] also choose to consider the causes of action for interference with contract and economic relations because they are very closely related to the defamation causes of action, but we regard any assignment of error with regard to the first, third, fifth and ninth causes of action as waived.

Since the order granting summary adjudication had the same effect as an order granting summary judgment, we consider it under the well established principles governing review of summary judgments. We refrain from weighing the evidence but inquire only whether there are any triable issues of fact. (Leo F. Piazza Paving Co. v. Foundation Constructors, Inc. (1981) 128 Cal.App.3d 583, 589, 177 Cal.Rptr. 268; Freidberg v. Freidberg (1970) 9 Cal.App.3d 754, 763, 88 Cal.Rptr. 451.) " 'The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.' [Citation.] 'The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.' " (Mann v. Cracchiolo (1985) 38 Cal.3d 18, 35-36, 210 Cal.Rptr. 762, 694 P.2d 1134.)

From 1979 through 1984, appellant resided in Humboldt County where she was a PG & E ratepayer. During this time, she helped found a loosely organized group known as the Redwood Alliance, dedicated to opposing PG & E's plans for nuclear power. In the late 1970s, she appeared on local television as a representative of the group to explain its views on the decommissioning of the PG & E Humboldt Bay nuclear power plant. In 1981 and 1982, she represented the Redwood Alliance in a Public Utility Commission (PUC) proceeding, designated OII-86, which concerned among other things the financing of nuclear facility decommissioning costs. She appeared in a series of hearings on behalf of the Redwood Alliance and participated in the cross-examination of expert witnesses. In 1983, she was one of the authors of prepared testimony that the Redwood Alliance submitted to the PUC in a rate case involving the Humboldt Bay nuclear power plant.

According to appellant, she did not attend meetings of the Redwood Alliance or participate in any of its activities in 1985, and she moved to the San Francisco Bay area sometime during that year. Early in 1986, the Redwood Alliance participated in another PUC proceeding involving the Diablo Canyon nuclear power plant. It needed to appear in two pretrial hearings in San Francisco to secure the status of an intervenor but was reluctant to incur the cost of sending an attorney or other representative for this limited purpose. Appellant agreed to accommodate

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the group by appearing on its behalf at two pretrial hearings on January 13, 1986, and July 23, [21 Cal.App.4th 441] 1986. She states that she spent a total of 5.25 hours at the two hearings, acting as a volunteer without any expectation of payment or reimbursement for expenses. The record of the hearings discloses that her participation was limited to announcing the intention of the Redwood Alliance to intervene.

Appellant avers that from July 23, 1986, to the present, she has not participated in any further public utilities cases or attended any meetings of the Redwood Alliance. PG & E objects that these assertions are contradicted by a judicial admission: the original complaint alleged that appellant "was at all times relevant hereto, a ... member of the Redwood Alliance." Appellant urges that we disregard this allegation as "a misstatement in the pleadings drafted by [her] attorneys." We recognize that a plaintiff is generally "bound by well pleaded material allegations...." (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 406, p. 455) "Where a complaint contains allegations destructive of a cause of action the defect cannot be cured by their omission without explanation in a subsequent pleading." (Blain v. Doctor's Co. (1990) 222 Cal.App.3d 1048, 1058, 272 Cal.Rptr. 250.) But the record indicates that the disputed allegation was in fact virtually meaningless; the Redwood Alliance did not require payment of dues, issue membership cards, or maintain any formal accounting of membership. The "members" were only those people who rallied to its activities at a particular time. In light of this evidence, the allegation clearly could be such an inadvertent error as appellant should be allowed to correct. (4 Witkin, Cal. Procedure, supra, Pleading, § 411, p. 458.)

On December 29, 1986, appellant was hired by a trade publication, Energy User News, as its West Coast correspondent. Though a small publication with a circulation of only about 12,000-15,000, the magazine had gained a respected niche in the industry. A PG & E executive described it as being "preeminent in its field." Appellant's immediate supervisor, Cornelia Clay-Fulghum, stated that the editorial staff was informed "since the beginning" that appellant had anti-nuclear views. Nevertheless, she reported for the publication throughout the next 11 months without incurring any criticism for bias.

In mid-November 1987, PG & E's chief executive officer, Richard Clarke, accompanied by four other top executives, visited the editorial offices of Energy User News in New York during an annual trip to meet "with the financial community and with key reporters and editors." The executives included David Monfried, the manager of the news services department, who was responsible for media relations. It was the first time that PG & E executives had visited the magazine during their annual trip to New York and the entire editorial staff turned out for the occasion. Besides being an important [21 Cal.App.4th 442] sources of news, PG & E also bought a modest amount of advertising in the magazine.

While leaving the interview by car, PG & E executive, David Monfried, remarked to the chief executive officer, Richard Clarke, that the West Coast correspondent of Energy User News might have a conflict of interest. Clarke told Monfried to look into the matter. As events unfolded, Monfried's suspicions drew upon two sources of information--a PUC order compensating the Redwood Alliance and a conversation between a PG & E employee and a representative of the Redwood Alliance.

Several months after appellant's appearance on July 23, 1986, the Redwood Alliance actively intervened in a protracted trial of the Diablo Valley Canyon nuclear power plant case. When the PUC issued an opinion favoring its position, the Redwood Alliance secured a further PUC opinion ordering...