Warfield v. McGraw-Hill, Inc.

• Decision Date: 19 June 1973
• Docket Number: GRAW-HIL,No. 40781,INC,40781
• Citation: 108 Cal.Rptr. 652,32 Cal.App.3d 1041
• Court: California Court of Appeals Court of Appeals
• Parties: Patrick C. WARFIELD, Plaintiff and Appellant, v. Mc, a corporation (erroneously sued and served herein as McGraw Hill Publications, Inc. and hereinafter referred to as 'McGraw-Hill'), et al., Defendants and Respondents. Civ.

Page 652

108 Cal.Rptr. 652

32 Cal.App.3d 1041

Patrick C. WARFIELD, Plaintiff and Appellant, v. McGRAW-HILL, INC., a corporation (erroneously sued and served herein as McGraw Hill Publications, Inc. and hereinafter referred to as 'McGraw-Hill'), et al., Defendants and Respondents.

Civ. No. 40781.

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

June 19, 1973.

Patrick C. Warfield, in pro per.

Gibson, Dunn & Crutcher, F. Lee Coulter, Jr. and Theodore B. Olson, Los Angeles, for defendants and respondents.

LILLIE, Associate Justice.

In this action for damages for alleged defamation by slander plaintiff appeals from summary judgment entered in favor of defendants; he also noticed an appeal from order denying his motion to amend his complaint to conform to proof. Inasmuch as it is reviewable on appeal from the judgment, such order is nonappealable (Hurley v. Lake County, 133 Cal.App. 219, 221, 23 P.2d 838) and the attempted appeal therefrom is dismissed.

Prior to the events involved herein, plaintiff was an account executive with an advertising agency (Reach-McClinton Inc.); one of the account supervised by him was the Sperry Flight Systems (Sperry), a division of the Sperry Rand Corporation, which maintained an office in Los Angeles and was engaged in the production of equipment for commercial and military aircraft. Defendant was the publisher of a periodical named 'Aviation Week & Space Technology' (Aviation Week) containing news and advertising relative to the aviation and aerospace fields--defendant Plattner was its engineering editor and defendant Miller its Los Angeles bureau chief. In November 1968, plaintiff made a telephone call to Plattner to ascertain the plans of Aviation Week's editorial department for coverage of a flight by the X--24, a military aircraft which carried some equipment designed by Sperry Flight Systems; he did so at Sperry's request so that a Sperry advertisement could be scheduled for the issue carrying the story of the flight. It is this telephone call which precipitated the instant litigation.

According to the proposed amended complaint, ¹ defendant Plattner 'was rude and hostile' to plaintiff. As a result of such telephone conversation, defendants Plattner and Miller thereafter verbally communicated with plaintiff's employer, as well as his client (Sperry), using language which 'signif(ied) the following content.' ² As a proximate result of the foregoing communications, entered into maliciously by defendants with intent to defame and injure plaintiff professionally, he was terminated by his employer and sustained other damages, physical and mental.

Several declarations in support of the motion for summary judgment, and in opposition thereto, were filed; after consideration thereof the court determined that no triable issue of fact had been presented (as provided by section 437c, Code of Civil Procedure) and rendered judgment accordingly. Renewed here are the following contentions advanced by defendants below: The statements made by Plattner and Miller were not defamatory being true even under plaintiff's version of the facts, ³ and they were conditionally privileged and made without malice; ⁴ and plaintiff's opposition to the motion consisted of declarations conclusionary and hearsay in nature and, therefore, of no value in determining whether there were issuable questions of fact. (Bennett v. Hibernia Bank, 186 Cal.App.2d 748, 754, 9 Cal.Rptr. 896.) 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. (Citations.) Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried.' (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788)

The record has been properly augmented, pursuant to order of this court to include plaintiff's motion to amend his complaint (to conform to proof) thus overcoming one of defendants' objections to our consideration of such pleading for the limited purpose stated under footnote 1, Supra; their only other reference to this phase of the appeal is that the trial court considered all of the so-called 'proof' sought to be thus incorporated and found it lacking as a basis for denying the motion for summary judgment. In all the above circumstances, the proposed pleading will be considered by this court (Campbell-Kawannankoa v. Campbell, 152 Cal. 201, 203, 92 P. 184) in determining whether plaintiff has met his burden. If the movant shows that he is entitled to summary judgment, 'then the opponent cannot rely upon the allegations of his pleading but must, apart from such pleading, show by his affidavits he has sufficient proof of the matters alleged to raise an issuable question of fact in regard thereto.' (Hayward Union etc. School Dist. v. Madrid, 234 Cal.App.2d 100, 120, 44 Cal.Rptr. 268, 280.)

The statements allegedly made by Plattner and Miller reflected critically and unfavorably on plaintiff's role in the course of the particular telephone conversation. While most of such criticisms cannot possibly be classified as defamatory, at least one may fairly be said to fall within the definition of slander as set forth in section 46, Civil Code. Thereunder a false and unprivileged communication, orally uttered concerning a person, is slanderous if it '3. Tends directly to injure him in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits.' According to plaintiff, the statements asserted that 'He violated industry ethics.' (Fn. 2, (j).) Unless privileged, it has been held that similar statements about an attorney, a clergyman, a teacher, a newspaper publisher and a businessman are actionable under the subdivision above quoted. (See 30 Cal.Jur.2d, Libel and Slander, § 105.) Furthermore, at least one of the declarations in opposition to the motion (for summary judgment) is free from defendants' criticism that they were based on hearsay and conclusionary; such declaration is that of John Markey with '35 years experience in the advertising and media business in the U.S. and Canada.' He declared that 'as an agency executive I have directed the marketing programs for over thirty major advertising accounts; that I have held several management positions...