Smith v. Hatch

• Decision Date: 25 March 1969
• Citation: 76 Cal.Rptr. 350,271 Cal.App.2d 39
• Court: California Court of Appeals Court of Appeals
• Parties: Stewart SMITH, M. Maroni Smith and Thomas Tripiano, Plaintiffs and Appellants, v. Robert E. HATCH, William P. Scott, Scott Co. of California, a corporation, Defendants and Respondents. Civ. 24407.

Page 350

76 Cal.Rptr. 350

271 Cal.App.2d 39

Stewart SMITH, M. Maroni Smith and Thomas Tripiano, Plaintiffs and Appellants, v. Robert E. HATCH, William P. Scott, Scott Co. of California, a corporation, Defendants and Respondents.

Civ. 24407.

Court of Appeal, First District, Division 1, California.

March 25, 1969.

John F. Harper, San Francisco, for plaintiffs.

Robert E. Hatch, San Francisco, for respondents Scott and Scott Co.

Robert N. Beechinor and David D. Nolan, San Francisco, for respondent Robert E. Hatch.

MOLINARI, Presiding Justice.

This is an appeal by plaintiffs from summary judgments entered in favor of defendants. Plaintiffs Stewart Smith, M. Maroni Smith and Thomas Tripiano filed a complaint for defamation. Defendants Robert E. Hatch, William P. Scott, Scott Co. and E. H. Morrill ¹ each moved for summary judgment under section 437c of the Code of Civil Procedure. The trial court granted each of the motions on the ground that no triable issue of fact existed. Plaintiffs' principal contention on this appeal is that the motions should have been denied because the communications in question were not privileged.

The Complaint

The amended complaint purports to set forth two causes of action based on two letters written by Hatch, an attorney. The letter which is the basis of the first cause of action was written on September 3, 1965 by Hatch to the Golden Gate Mechanical Contractors Association. The text of the letter is as follows:

'Papers furnished us under recent court discovery proceedings indicate to us that MCANC from Apr. 23, 1963 to May 26, 1965, in connection with the litigation against the national association, you and some of your members, paid to M. M. Smith and associate attorneys, the sum of $37,431.80 under the guise of fees and travelling expenses of attorneys.

'Combining this with the percentage (10%) so generously contributed to Mr. Smith as 'administrator' of PIPT, there appears a total of approximately $90,000.00 fleeing the coffers within little more than two years.

'We already are on record in asserting to the court--and anticipate little difficulty in demonstrating--that the primary motivation of the litigation was to admit of such a grab of funds by the persons in control of MCANC.

'As to the PIPT payments, there really was nothing much that the administrator could do other than write three checks a month against the funds deposited by the Local #88 Trustees, something any bank would be glad to do gratis.

'I feel safe in saying no court or jury will be able to find more than a vestige of morality or legality to these expenditures.' ²

In the first cause of action, plaintiffs allege that by writing and permitting the reading of this letter defendants intended to charge plaintiffs with 'maintaining spurious and sham litigation and * * * with dishonesty * * * embezzlement of funds from a trust of which they were the trustees and attorney for the trustees.' They further assert that the letter was false and not privileged.

The second cause of action is predicated upon a letter directed by Hatch on May 6, 1965 to the Honorable Joseph Karesh, Judge of the San Francisco Superior Court. The letter refers to pending litigation entitled 'Scott v. Mach-Con No. 552200,' a matter which defendant Hatch identified as an 'Industry Promotion Trust case.' In the first paragraph of the letter in question, defendant Hatch requests that 'the hearing be continued.' He then goes on to discuss the case and concludes the letter with the following two paragraphs: 'Using Our money to provide Stewart Smith with an idle life of luxury, to pay off the members of a dying association to not object to defendants' dishonesty and to subsidize sham litigation Against us, is nobody's honest idea of 'industry promotion. " ( ) 'As it stands right now, the record would support an indictment of these defendants by the federal grand jury and that is exactly where the defendants have headed themselves. This court would do the defendants a favor to stop them right now.'

In the second cause of action, plaintiffs allege that the last paragraph set out above 'was not relevant or material to the proceedings nor to the request for continuance * * * nor was it reasonably related to the action.' Plaintiffs charge that 'said utterances were false, were not privileged, were said maliciously, * * * with the intent to directly injure plaintiffs in their occupation and means of livelihood and general reputation.' ³

The Declarations

A review of the declarations in support of the motions for summary judgment and the counteraffidavits and counterdeclarations reveals that there is no true dispute as to the facts relating to the second cause of action. None of the parties dispute the fact that the letter was written, sent and received; and there is no argument as to the actual content of the correspondence. It is apparent that in regard to this cause of action the parties agree with the court that there is no triable issue of fact and the only question is whether or not the letter was absolutely privileged under the terms of Civil Code, section 47 ⁴ which provides in pertinent part: 'A privileged publication or broadcast is one made--* * * in any * * * judicial proceeding * * *.' It is settled that if no triable issue of fact is presented, and the sole question is one of law, the question of law may be determined on a motion for summary judgment. (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; Jones-Hamilton Co. v. Franchise Tax Board, 268 A.C.A. 360, 364, 73 Cal.Rptr. 896; Nelson v. United States Fire Ins. Co., 259 Cal.App.2d 248, 251, 66 Cal.Rptr. 115; Goldstein v. Hoffman, 213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334; Tibbs v. Smart & Final Iris Co., 152 Cal.App.2d 618, 623, 313 P.2d 636.)

Adverting to the first cause of action, we note that, according to the declarations of defendants, Hatch was the attorney for the Golden Gate Mechanical Contractors Association and attorney for defendant Scott and defendant Scott Co. at the time that the letter in question was written. We note further that defendant Scott was a director of the Golden Gate Mechanical Contractors Association and received a copy of the letter and read it aloud to a meeting of the Mechanical Contractors Association of Northern California. In his declaration defendant Hatch stated that he did not know that the letter would be disseminated to the members of Golden Gate Mechanical Contractors Association but that it was a 'logical and proper thing' for the association to do. He also declared that he did not know that defendant Scott or anyone else was going to meet with the other contractors' association or that the letter was to be read to such association. Defendant Scott declared that he had participated in efforts to settle differences and litigation between Golden Gate Mechanical Contractors Association and Mechanical Contractors Association of Northern California and that he read the letter as part of his efforts.

In reference to this first cause of action, plaintiffs claim that there was a triable issue of fact outstanding and that consequently the motions for summary judgment should not have been granted. However, plaintiffs do not make entirely clear precisely What triable issue is involved although they suggest that the question of whether or not defendant Hatch could foresee that the letter would be republished should have been tried by the court. ⁵ They rely on Curley v. Vick, 211 Cal.App.2d 670, 673, 27 Cal.Rptr. 501, where the court stated the rule that an author of a defamatory statement is liable for a republication, although he did not authorize or intend republication, if the republication was 'reasonably foreseeable.'

Applicable Principles

Publications made in the course of a judicial proceeding are Absolutely privileged under the provisions of subdivision 2 of section 47 (Albertson v. Raboff, 46 Cal.2d 375, 379, 295 P.2d 405; Gosewisch v. Doran, 161 Cal. 511, 513--515, 119 P. 656) even though they are made with actual malice. (Gosewisch v. Doran, supra.) The absolute privilege attaches to any publication that has any reasonable relation to the action and is permitted by law if made to achieve the objects of the litigation, 'even though the publication is made outside the courtroom and no function of the court or its officers is invoked.' (Albertson v. Raboff, supra, 46 Cal.2d at p. 381, 295 P.2d at p. 409.) Accordingly, 'it is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits.' (Albertson v. Raboff, supra, at p. 381, 295 P.2d at p. 409.)

To be provileged under subdivision 2 of section 47 the defamatory matter need not be relevant, pertinent or material to any issue before the court, it only need have some connection or some relation to the judicial proceeding. (Thornton v. Rhoden, 245 Cal.App.2d 80, 90, 53 Cal.Rptr. 706; ⁶ Jordan v. Lemaire, 222 Cal.App.2d 622, 625, 35 Cal.Rptr. 337; Lewis v. Linn, 209 Cal.App.2d 394, 399, 26 Cal.Rptr. 6; ⁷ Restatement of Torts, §§ 585--589.)

Although section 47 refers to the 'publication' made in a 'judicial proceeding,' and does not list the Persons who are absolutely privileged, the privilege therein provided has been extended to judges (Lewis v. Linn, supra), attorneys (Jordan v. Lemaire, supra; Friedman v. Knecht, 248 Cal.App.2d 455, 56 Cal.Rptr. 540; Thornton v. Rhoden, supra, 245 Cal.App.2d 80, 53 Cal.Rptr. 706), and to parties to private litigation (Jordan v. Lemaire, supra; and see Albertson v. Raboff, supra, 46 Cal.2d 375, 378--379, 295 P.2d 405). In Thornton, supra, the rule of the Restatement which lists judicial officers (§ 585), attorneys (§ 586), parties (§ 587), ⁸ witnesses (§ 588), and jurors (§ 589) as persons entitled to the absolute privilege in judicial proceedings is equated to the rule declared in subdivision 2 of section 47. (245 Cal.App.2d 90, 53 Cal.Rptr. 706.)

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