Thornton v. Rhoden

Citation245 Cal.App.2d 80,53 Cal.Rptr. 706
CourtCalifornia Court of Appeals
Decision Date21 September 1966
Parties, 23 A.L.R.3d 1152 Charles B. THORNTON, Plaintiff and Appellant, v. HAROLD RHODEN, Defendant and Respondent. Charles B. THORNTON, Plaintiff and Appellant, v. Noah DIETRICH, Emmett T. Steele and Harold Rhoden, Defendants and Respondents. Civ. 28769, 29102.

KAUS, Justice.

These two consolidated appeals represent the appellate phase of a minor skirmish in a major battle which has once before reached the official reports in Steele v. Superior Court, 56 Cal.2d 402, 15 Cal.Rptr. 116, 364 P.2d 292.

The parent litigation is a case entitled Steele v. Litton Industries, Inc., et al., which for several years has been and still is pending in the Superior Court of Los Angeles County. In that case Steele is suing Litton Industries, Inc., ('Litton'), Thornton and others for vast sums of money and stock which he claims to have coming to him by virtue of his participation in the founding of Litton and certain agreements made then and thereafter. While that action was awaiting trial, Steele, through his attorney Harold Rhoden, noticed and took the deposition of one Dietrich. At that deposition Dietrich, mostly in response to questions asked of him by Rhoden, but partly in reply to queries from Litton's attorney, said several unflattering things about Thornton. 1 Two days after the deposition was on file, Thornton filed a defamation action against Dietrich, Steele and Rhoden. About a month later a first amended complaint was filed. Although initially a demurrer to that complaint was overruled by Judge Patton, Judge McCoy ruled in connection with later discovery proceedings in the defamation action that the alleged wrongs were absolutely privileged and that any orders permitting Thornton further discovery would be in excess of the court's jurisdiction. After several motions by Thornton to be given leave to amend were denied, Judge Mahl eventually granted a motion by all three defendants to dismiss the first amended complaint. A judgment of dismissal was filed as to the defendant Rhoden, but not as to Steele and Dietrich who had counterclaims pending against Thornton; 2 these arose out of what Thornton is said to have said about Dietrich's quality as a deponent and about Steele's as a litigant. Rhoden is therefore the only respondent to Thornton's appeal from the judgment in the defamation action.

During Thornton's unsuccessful attempts to amend the complaint in the defamation action, he tried to add counts for abuse of process. Although he was unsuccessful in this, he filed an independent action against Rhoden, Steele and Dietrich on that theory. Eventually a summary judgment was entered in favor of the defendants. All three are respondents to the appeal from that judgment.

In support of a reversal of the judgment in the defamation action Thornton urges that the first amended complaint did state a cause of action. No argument is made that the superior court abused its discretion in not permitting the proposed amendments thereto to be filed. In the abuse of process action, it is submitted that the papers before the superior court on the motion for summary judgment did disclose several triable issues.

The Defamation Action

Herewith a summary of Thornton's allegations in the defamation action, omitting the customary allegations concerning Thornton's standing in the community, loss or reputation and damages:

The pendency of Steele v. Litton, et al., is pleaded, as is Rhoden's representation of Steele in that action. A brief summary of the charging allegations therein is given, with a statement that Thornton had denied them. It is then alleged that Dietrich and Rhoden orally published certain defamatory matter about Thornton at the deposition. 3 These matters were false and had no 'relation or reference to the cause in the Steele case or to any subject matter involved therein.' Defendants knew that these statements were false and published them with actual malice. Certain facts are then pleaded from which the reader is invited to infer the existence of such a state of mind. One fact is Rhoden's insistence in proceeding with the deposition in spite of objections by Litton's counsel. 4 There is a letter from Rhoden to Thornton's lawyers threatening litigation because Thornton had issued a public statement said to be to the effect that Dietrich had committed perjury at the deposition. This letter was written two days after the deposition had been filed on December 19, 1962. A third is a sarcastic letter from Rhoden, threatening an action for malicious prosecution. This letter also contained certain snippish remarks about Rhoden's ability to pay the forty million dollars demanded by Thornton in the original complaint in the defamation action and an offer to stipulate to increase the prayer to four hundred million dollars. Fourth, a letter from Rhoden to counsel for Thornton, describing the defamation action as the illegitimate sister of the Steele case, intimating that a certain prominent law firm to which he had sent an information copy of his previous letter could not be expected to have any connection with a lawsuit such as Thornton's and an ironic inquiry as to why he Dietrich and Steele had not yet been sued for libel contained in the answer to the original complaint. Fifth, the reallegation and republication by defendants of the false and defamatory matter said during the deposition in that answer. Sixth, the fact that when the deposition was filed on December 19, 1962, Rhoden instructed his process server to notify the press at the courthouse that a deposition involving the particular defamatory matter had just been filed, that the process server obeyed instructions and that when one of the reporters telephoned Rhoden about the deposition he gave her the numbers of the pages which contained the defamatory matter.

It is then further alleged that by causing the deposition to be transcribed, defendants published the previous slander as a libel and that all defendants 'conspired' to cause harm and damage to Thornton by publishing the defamatory matters orally and in writing.

It is to be noted from the above that the only charged publication of the defamatory matter as a slander was the publication at the deposition and the only charged publication as a libel was the transcription thereof. 5 The notification to the newspapers by Rhoden's process server and his helpfulness to the reporter who called him are only alleged as evidence showing the existence of malice. 6

As correctly held by the trial court, plaintiff's attempt to state a cause of action for defamation comes to naught because of the privilege recognized in connection with judicial proceedings. (Civil Code, § 47, subd. 2.)

Before discussing the applicable law, it seems proper to state Rhoden's contention concerning the reasons why the questions and answers asked and given at the deposition had some relationship to Steele v. Litton, et al. It is claimed that at the trial for which he was then preparing, the question of credibility of Thornton as a witness would be involved. It would then be proper for Steele to attempt to impeach him by showing 'that his general reputation for truth, honesty, or integrity is bad * * *' (Code Civ.Proc. § 2051.) Rhoden recognized that he would not be permitted to show 'particular wrongful acts' in connection with such attempted impeachment; however he anticipated that Thornton might counter the impeachment by evidence of his good character, as he clearly would have been entitled to do. (Code Civ.Proc. § 2053.) On cross-examination of witnesses to Thornton's good character whose direct testimony according to permitted practice would take the form of evidence concerning his good reputation for truth, honesty and integrity, it would then be permissible to ask such character witnesses whether they 'had heard' of the derogatory matters brought out by Dietrich in his deposition. (People v. Thomas, 58 Cal.2d 121, 132, 23 Cal.Rptr. 161, 373 P.2d 97; People v. Malloy 199 Cal.App.2d 219, 226--227, 18 Cal.Rptr. 545.) Rhoden contends that upon the asking of the 'have you heard' type of question, his good faith would be challenged 7 and that he took the deposition in order to be able to meet such a challenge successfully. Objection that to prove good faith it was not necessary to cause the defamatory matter to be uttered at a deposition, but that a signed statement or affidavit from Dietrich would have been sufficient, is met by the assertion that the procedure chosen was one more calculated to demonstrate good faith in that Thornton's attorneys were given an opportunity to cross-examine Dietrich and, further, any possible claim of forgery of a statement or affidavit or unfairness in connection with its procurement was precluded.

It is thus apparent that no contention is made that--except for a radical change in the rules of evidence--Dietrich's answers were admissible as such, either directly or for the purpose of impeaching any witness or that they were calculated to lead to the discovery of admissible evidence. 8

Both parties recognize that the privilege of an attorney in judicial proceedings is 'absolute' in the sense that it cannot be defeated by an allegation or showing that the publication of the defamation was made with malice. 9 Although the authorities cited in the briefs range far afield, the controversy can be narrowed considerably. It really comes down to this: in order to claim the absolute privilege, is it necessary that a defamation published...

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