Stolz v. Wong Communications Limited Partnership

• Decision Date: 21 June 1994
• Docket Number: No. C016473,C016473
• Citation: 31 Cal.Rptr.2d 229,25 Cal.App.4th 1811
• Parties: , 75 Rad. Reg. 2d (P & F) 935 Edward Royce STOLZ II, Plaintiff and Appellant, v. WONG COMMUNICATIONS LIMITED PARTNERSHIP et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 229

31 Cal.Rptr.2d 229

25 Cal.App.4th 1811, 75 Rad. Reg. 2d (P & F) 935

Edward Royce STOLZ II, Plaintiff and Appellant, v. WONG COMMUNICATIONS LIMITED PARTNERSHIP et al., Defendants and Respondents.

No. C016473.

Court of Appeal, Third District, California.

June 21, 1994.

Rehearing Denied July 19, 1994.

Review Denied Sept. 29, 1994.

[25 Cal.App.4th 1814] John S. Sargetis, Sacramento, for plaintiff and appellant.

Lynn A. Dean, Richard T. Dudek and David L. Muller, Sacramento, for defendants and respondents.

SIMS, Acting Presiding Justice.

Plaintiff Edward Royce Stolz II, transacting business as Royce International Broadcasting Station KWOD-FM, appeals from summary judgment entered in favor of defendants Wong Communication Limited Partnership, Kin Shaw Wong, and Fay Gum Wong (the Wong defendants), in plaintiff's action for malicious prosecution, abuse of process, and interference with economic relations. Plaintiff contends the trial court erred in determining no cause of action was stated by the complaint's allegations that defendants maliciously filed with the Federal Communications Commission (FCC) an application competing with plaintiff's application to renew a license to operate a particular radio frequency. Plaintiff also purports to appeal from summary judgment in favor of defendants Paul Besozzi, Stephen Diaz Gavin, and Besozzi & Gavin (the attorney defendants). ¹

We shall affirm the judgment in favor of the Wong defendants and dismiss the appeal as to the attorney defendants.

FACTUAL AND PROCEDURAL BACKGROUND

In March 1992, plaintiff filed this action against the Wong defendants and their attorneys, asserting causes of action for malicious prosecution, abuse of process, and "interference with economic relationship." The complaint alleged as follows:

Plaintiff is the licensee of radio station KWOD 106.5 FM in Sacramento and has held the license since 1975. In 1983, plaintiff filed with the FCC an application for renewal of the license. The Wong defendants filed with the FCC a competing application for the same frequency.

After an investigatory period, the FCC determined the applications were mutually exclusive, and a comparative hearing was necessary to evaluate the two applications to determine "which of the proposals would, on a comparative basis, better serve the public interest." Following the hearing, in January 1989 an administrative law judge (ALJ) granted plaintiff's application for renewal after weighing the relative merits of the two applications. The ALJ determined among other things that the Wong partnership was a "sham" partnership in that its true controlling partner was Kin Shaw Wong, not his sister Fay Gum Wong. The result of this finding was to deny to the Wongs certain "integration credits" for purposes of comparative evaluation.

The Wong defendants sought administrative review, and in September 1989 the FCC Review Board agreed with the ALJ that the license should go to plaintiff. The review board noted the Wongs had not disputed the ALJ's observation that Mr. Wong had prior unsatisfactory business dealings with plaintiff, and "Mr. Wong admits that he was 'angry' with the way Mr. Stolz had conducted his business towards Mr. Wong personally and that filing a competing application is a way to challenge Mr. Stolz's business."

The Wong defendants sought further review within the FCC, and in November 1990 the FCC affirmed the review board's decision. The Wong defendants sought review in federal court but dismissed the case before it was heard.

Plaintiff's complaint alleged that the Wong application was prosecuted without probable cause and with malice.

The complaint did not allege any interruption of plaintiff's operation. (It is undisputed on appeal that at all times throughout the FCC investigation, hearing and review process, plaintiff continued to operate KWOD 106.5 FM.)

The Wong defendants moved for summary judgment on various grounds including (1) failure of the complaint to state a cause of action, in that filing an application for an FCC license does not give rise to a claim for malicious prosecution or abuse of process, and (2) the complaint omitted essential elements of a cause of action for interference with economic relationship. The trial court granted the motion, determining the complaint failed to state a cause of action. In July 1993, judgment was entered in favor of the Wong defendants.

The attorney defendants later filed a similar motion for summary judgment, which was granted.

Plaintiff filed a notice of appeal from the orders granting the motions and "any Judgment thereon."

DISCUSSION

I. Dismissal Of Appeal Re: Attorney Defendants

As to the attorney defendants, plaintiff filed a notice of appeal from the "ORDER ON SUMMARY JUDGMENT MOTION ... and any Judgment thereon." However, the record on appeal contains no judgment as to the attorney defendants. The record contains only an order granting the summary judgment motion as to those defendants.

An order granting a motion for summary judgment is not an appealable order or judgment. (Code Civ.Proc., § 904.1; Modica v. Merin (1991) 234 Cal.App.3d 1072, 1073-1075, 285 Cal.Rptr. 673; Hooks v. Southern Cal. Permanente Medical Group (1980) 107 Cal.App.3d 435, 441, 165 Cal.Rptr. 741.)

Therefore, the appeal as to the attorney defendants is dismissed.

II. Appeal Re: Wong Defendants

A. Standard of Review

A summary judgment motion necessarily includes a test of the pleadings and can become a motion for judgment on the pleadings. (Barnett v. Delta Lines, Inc. (1982) 137 Cal.App.3d 674, 682, 187 Cal.Rptr. 219.) We explained in FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 282 Cal.Rptr. 508: "The procedure for resolving a summary judgment motion presupposes that the pleadings are adequate to put in issue a cause of action or defense thereto. [Citation.] However a pleading may be defective in failing to allege an element of a cause of action or in failing to intelligibly identify a defense thereto. In such a case, the moving party need not address a missing element or, obviously, respond to assertions which are unintelligible or make out no recognizable legal claim. The summary judgment proceeding is thereby necessarily transmuted into a test of the pleadings and the summary judgment motion into a motion for judgment on the pleadings. In these circumstances it has been said that a defendant's 'motion for summary judgment necessarily includes a test of the sufficiency of the complaint and as such is in legal effect a motion for judgment on the pleadings.' [Citation.]" (Id. at p. 382, 282 Cal.Rptr. 508, italics omitted.) Where a motion for summary judgment is in effect a motion for judgment on the pleadings, the court may grant a plaintiff leave to amend the complaint. (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536, 249 Cal.Rptr. 5.)

Our review is de novo. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511, 285 Cal.Rptr. 385 [summary judgment]; 6 Witkin, Cal.Procedure (3d ed. 1985) Proceedings Without Trial, § 263, p. 565 [motion for judgment on pleadings].) Where there is sufficient legal ground to support the granting of the motion, it will be upheld regardless of the grounds upon which the trial court relied. (Troche v. Daley (1990) 217 Cal.App.3d 403, 407, 266 Cal.Rptr. 34; 9 Witkin, op. cit. supra, Appeal, § 259, p. 266.)

B. Process And Purpose Of FCC Licensing

The purpose of federal regulation of broadcasting is "to insure that 'the broadcasting privilege will not be a right of selfishness' but would rather 'rest upon an assurance of public interest to be served.' " (Citizens Communications Center v. F.C.C. (D.C.Cir.1971) 447 F.2d 1201, 1206.) To accomplish this purpose, the federal Communications Act provides for licenses of limited time duration and authorizes renewal only if the public interest will thereby be served. (Ibid.; see 47 U.S.C. § 307.)

Thus, 47 U.S.C. § 301, provides: "It is the purpose of this chapter, among other things, to maintain the control of the United States over all the channels of radio transmission; and to provide for the use of such channels, but not the ownership thereof, by persons for limited periods of time, under licenses granted by Federal authority, and no such license shall be construed to create any right, beyond the terms, conditions, and periods of the license...." (47 U.S.C. § 301.) Additionally, 47 U.S.C. section 307(c), provides in part: "... Each license granted for the operation of a radio broadcasting station shall be for a term of not to exceed seven years.... Upon the expiration of any license, upon application therefor, a renewal of such license may be granted from time to time for a term of ... not to exceed seven years in the case of radio broadcasting station licenses ... if the Commission finds that public interest, convenience, and necessity would be served thereby...."

"The policy of the Act is clear that no person is to have anything in the nature of a property right as a result of the granting of a license. Licenses are limited to a maximum [ ] duration, may be revoked, and need not be renewed. Thus the channels presently occupied remain free for a new assignment to another licensee in the interest of the listening public. [p] Plainly it is not the purpose of the Act to protect a licensee against competition but to protect the public." (Federal Communications Com. v. Sanders Bros. (1940) 309 U.S. 470, 475, 60 S.Ct. 693, 697, 84 L.Ed. 869, 874.)

Where two applications compete for the same frequency and are mutually exclusive, the FCC holds a comparative hearing to weigh the relative merits of both before granting either application. (47 U.S.C. § 309(e); Ashbacker Radio Corp. v. Federal Com. Com. (1945) 326 U.S. 327, 66 S.Ct. 148, 90 L.Ed. 108.) Ashbacker held a licensee applying for a change to a different operating frequency was entitled to a comparative hearing before the FCC granted the license...