Schmalenberg v. Tacoma News, Inc., 20029-5-II

CourtCourt of Appeals of Washington
Citation943 P.2d 350,87 Wn.App. 579
Decision Date02 September 1997
Docket NumberNo. 20029-5-II,20029-5-II
Parties, 26 Media L. Rep. 1001 Jan SCHMALENBERG and Barbara Schmalenberg, his wife, and Tri-Park Associates, a limited partnership, Appellants, v. TACOMA NEWS, INC., a Washington corporation, Respondent.

Charles O. Morgan, San Francisco, CA, Herbert Gelman, Gelman & Associates, Tacoma, for Appellants.

John Richard Creatura, Gordon & Thomas Law Firm; William Edward Holt, Margaret Yvonne Archer, Gordon Thomas Honeywell Malanca Peterson & Daheim, Tacoma, for Respondent.

MORGAN, Judge.

Jan Schmalenberg, his wife Barbara Schmalenberg, and a limited partnership called Tri-Park Associates (collectively "the Schmalenbergs") sued the Tacoma News Tribune (Tribune) for defamation. The trial court granted a defense motion for summary judgment, and this appeal followed. We affirm.

In 1991 and 1992, the Schmalenbergs were planning and developing a 21-unit, long-term shelter for battered women. The shelter opened for business in February 1993. Called the Tri-Park Apartments, it was located in Tacoma, next door to a topless nightclub called Fox's. It opened without an on-site manager or other on-site staff.

On Sunday, July 25, 1993, the Tacoma News Tribune published a story about the shelter. The story began on the front page and continued on the back page of the first section. The front-page headline read, "Dream to Debacle." The back-page headline read, "YWCA pulled support before project even opened its doors." The theme of the story was that the shelter, before opening, had been heralded as a model resource for battered women; as actually operated, however, the shelter was a disappointment. It was exposing residents and their children to drugs and violence, affording little security against abusive boyfriends and husbands (for example, its security gate was frequently broken or left unlocked), and failing to supply resources such as counseling, day care, or an adequate playground for its 33 resident children. It was charging more rent than landlords offering apartments through classified ads, even though it was meant to be accessible to low-income battered women. In the planning stages, it had been supported by the YWCA, but even before opening it had lost that support.

The story attributed various statements to Curtis Benson, the Pierce County Sheriff's public information officer. Those statements said, in essence, that the shelter was negligently run, provided little security, and left its residents exposed to crime.

The story attributed certain statements to Sallie Sweet, then the director of multi-family programs for the Housing Finance Commission. Those statements said, in essence, that the shelter had serious problems, and that she and the Schmalenbergs were working to find new management for its day-to-day operations.

The story attributed to YWCA "officials" a statement that the shelter was too expensive and too dangerous, and to Venetia Magnuson, the YWCA's executive director, a statement that cheaper apartments were available through classified ads. It also attributed to two of the shelter's residents, Gina O'Harra and Jocelyn Willis, various statements indicating a lack of security, and an abundance of crime both inside the shelter and in the surrounding neighborhood.

On Monday, July 26, 1993, Jan Schmalenberg sent letters of protest to Benson and Magnuson. On Tuesday, July 27, Benson replied by a letter that stated in part:

Thank you for your letter of July 26, 1993.

I, too, was dismayed by the article which appeared in the Morning News Tribune on July 25, 1993, which attributed certain comments to me. Those comments were not made by me.

....

I am sorry, as is the Administration of this Department, that the Pierce County Sheriff appears to have publicly taken a stand on this issue to your detriment. But, you may rest assured: THESE WERE NOT MY COMMENTS AND ARE NOT REFLECTIVE AT ALL OF WHAT I SAID.

This error in reporting was unfortunate, and the Department and I regret being affiliated with it in any way. Hopefully, it is enough for you to know that the offending comments simply were not made. 1

Also on Monday, July 26, Jan Schmalenberg asked the Tribune to publish an advertisement describing his objections to the story. Addressing the matter of day care, he stated in part:

In regards to the day care, it is not being used because less than 15% of the tenants have a job! They never leave the complex.

The day-care was and is intended to provide a place on-site for those women ... who work towards normalization of their lives. That includes having a vocation.

My question is whether day care should be provided for people on public assistance who don't work? 2

Addressing the matter of security, he stated in part:

Tenants talk about security, but when threatened by those who would batter them, they do not lock themselves in the security bathrooms. We have never heard the alarms go off.

The [Tribune] says I called the gate company one hundred times, but they failed to say that with each call the gate was serviced.

However, what was not said was that the tenants themselves didn't want the gate shut on weekends. They unlocked it sabotaging our security efforts. 3

Still addressing security, Schmalenberg said that even though tenants "complain about costs, security, and lack of supervision," 4 they were unwilling to accept the "accountability, responsibility, vocational training and personal-life counseling" 5 that the project was attempting to provide. Addressing the matter of the YWCA's support, Schmalenberg asserted that the YWCA had "never verbally or by written notice" 6 withdrawn its support. Then, he went on to say that the project's "biggest problem ... is that without the YWCA's help, we have been unable to identify those women who are most likely to succeed." 7 He argued in some detail that the Tribune's reporting of financial arrangements and rents had been incomplete and misleading. The Tribune declined to publish the proposed ad.

On August 11, 1993, the Schmalenbergs sued the Tribune for defamation. They alleged that the Tribune had published false statements, and that "as a direct and proximate result," they had been damaged. 8 They alleged special damages in the nature of lost rent, in addition to general damages to reputation.

In September 1994, the Tribune moved for summary judgment. It supported its motion with more than 800 pages of affidavits, declarations, depositions, exhibits, and other documents. These included affidavits or declarations from six of the shelter's residents or former residents, and an excerpt from Benson's deposition. The six residents or former residents described conditions at the shelter in about the same way as the story had, and said that the substance of the story was true. Benson said that during April, May, and June 1993, persons at the shelter had called for police assistance 31 or 32 times.

The Schmalenbergs opposed the motion with more than 950 pages of material, including affidavits or declarations from Sweet and two of the shelter's former residents, and more excerpts from Benson's deposition. In general, Benson and Sweet denied making the statements attributed to them in the article. One of the former residents said that "only 3 tenants were actually violating the rights of others;" "that the problems were being resolved," 9 and that she "felt comfortable with the efforts being made to conquer the existing problems." 10 The other former resident said, among other things, that day care was not needed because most of the residents did not work; that she never had a problem due to Fox's being next door; and that the security gate had been broken and repaired at least a dozen times.

On October 21, 1994, the Tribune further supported the motion for summary judgment with affidavits or declarations from five sheriff's deputies. Each said that he or she had regularly patrolled the area around the shelter; that he or she had been at the shelter on numerous occasions; that conditions at the shelter were substantially the same as described in the story; and that the substance of the story was true. 11 Instead of producing evidence to contravene the deputies' testimony, the Schmalenbergs moved to strike on grounds of irrelevance, lack of personal knowledge, hearsay, and improper opinion. The trial court denied the motion.

By November 22, 1994, the trial court had before it about 2000 pages of materials, including 22 declarations and affidavits, portions of 19 depositions, 3 videotapes, and 70 other documents. On that date, the court ruled in part, according to the Schmalenbergs' brief on appeal, "that the 'true' statements in the article were so damaging ... that the additional untrue statements and fabricated quotations did not change the sting of the story." 12 As a result, the court granted the motion for summary judgment and dismissed the complaint with prejudice.

At the outset, the Schmalenbergs argue that reversal is warranted because the trial court erroneously denied their motion to strike the deputies' testimony. For the most part, however, that testimony was relevant, based on personal knowledge, and, insofar as it was lay opinion, within the purview of ER 701. Minor parts may have been inadmissible, 13 but exclusion of those parts would not have altered the meaning or impact of the remaining parts. The trial court's denial of the motion to strike was not reversible error.

The Schmalenbergs' main claim is that the trial court erred by ruling that their evidence was insufficient to support a claim for defamation. We review de novo, taking the evidence and reasonable inferences in the light most favorable to the plaintiffs. 14

According to Mark v. Seattle Times, 15 the elements of defamation are falsity, an unprivileged communication, fault, and damages. 16 Mark cites only Sims v. KIRO Inc., 17 and Restatement (Second) of...

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