Grillo v. Smith

144 Cal. App. 3d 868 (1983) 193 Cal. Rptr. 414

JOSEPH R. GRILLO, Plaintiff and Appellant,
v.
JOHN SMITH et al., Defendants and Respondents.

Docket No. 30062.

Court of Appeals of California, Fourth District, Division Three.

May 24, 1983.

COUNSEL

Robinson & Robinson, Mark P. Robinson, Jr., and John D. Rowell for Plaintiff and Appellant.

Gibson, Dunn & Crutcher, Richard G. Duncan, Jr., and Robert W. Loewen for Defendants and Respondents.

OPINION

CROSBY, J.

The trial court granted the defense motion for summary judgment in this action "for libel and interference with business." Plaintiff Joseph R. Grillo appeals.

Grillo was Presiding Judge of the Los Angeles Municipal Court when defendants, the corporate owner and individual publisher of the Los Angeles Times, allegedly defamed him in an article published August 7, 1976 (the Article) and an editorial published October 18, 1976 (the Editorial).^[1] The complaint seeks $300,000 general damages, $50,000 special damages and $5 million punitive damages. Because the following issues are dispositive of this appeal, we do not reach other contentions of the parties:

1. Are subjective words or ambiguous syntax in a news report of a judicial proceeding sufficient to present a triable issue in a libel action against a newspaper? No.

2. Is hostile editorial opinion couched in terms of factual conclusions about the conduct and motives of a high public official sufficient to raise a triable issue in a libel action against a newspaper? No.

The Article and Editorial both concerned an incident which occurred Friday, August 6, 1976. On that date Grillo's clerk, personally accompanied by the judge, served James Czarnecki, a transportation officer in the office of the Auditor of Los Angeles County, with an "Order for Issuance of Airline Transportation." The order directed Czarnecki to issue airline tickets to Grillo and two other judges who desired to travel to Sacramento to attend hearings concerning legislation related to the operation of the municipal court. When Czarnecki refused to issue the tickets under orders from his superior, Grillo personally placed him under arrest.

Czarnecki was then escorted to Grillo's courtroom, where a contempt proceeding was held despite the attempted personal intervention of the County Counsel of Los Angeles County. At the hearing itself, a deputy county counsel represented Czarnecki, who was convicted and ordered to serve two days in jail with execution stayed until the following Wednesday. Grillo said the sentence was both coercive and punitive, i.e., designed to achieve compliance with the order to provide air transportation, as well as punish Czarnecki. He indicated he would "mitigate" the punishment, provided the tickets were furnished to the other judges forthwith; he offered to buy his own.

Grillo asserts three triable issues of fact exist with respect to the Article. First, he denies he was "angry" or "shouted" or "stormed" during the colloquy with Czarnecki. Second, he objects to the "kangaroo court" description of the August 6, 1976, proceeding. Finally, he argues the statement, "There is insufficient time to go through that red tape," is out of context because it related to the mechanics of acquiring air tickets from the county auditor, not counsel's complaints concerning the failure to inform Czarnecki of his rights and afford him due process.

(1) The initial determination as to whether a statement constitutes fact or opinion is one of law. (Okun v. Superior Court (1981) 29 Cal. 3d 442, 450 [175 Cal. Rptr. 157, 629 P.2d 1369]; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d 596, 601 [131 Cal. Rptr. 641, 552 P.2d 425]; Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal. 3d 673 [150 Cal. Rptr. 258, 586 P.2d 572]; Fisher v. Larsen (1982) 138 Cal. App. 3d 627 [188 Cal. Rptr. 216].) (2) The words "angry," "shouted," "stormed," and "kangaroo court" fall clearly on the opinion side of the line. They are subjective words and phrases of the sort which have been found to be opinion as a matter of law frequently in the past. (Okun v. Superior Court, supra, 29 Cal. 3d 442, 459 [175 Cal. Rptr. 157, 629 P.2d 1369] (collecting examples); Gomes v. Fried (1982) 136 Cal. App. 3d 924, 935 [186 Cal. Rptr. 605].)

The First and Fourteenth Amendments of the Constitution of the United States and article I, section 2 (formerly section 9) of the California Constitution confer an absolute privilege on statements of opinion concerning the conduct of public officials in office. (Yorty v. Chandler (1970) 13 Cal. App. 3d 467, 473 [91 Cal. Rptr. 709].) The marketplace of ideas, not the tort system, is the means by which our society evaluates those opinions. (Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339-340 [41 L. Ed. 2d 789, 805, 94 S. Ct. 2997].) Although offensive to Grillo, the subjective description of his actions in the conduct of judicial office contained in the Article is immune from legal attack. The reason is perhaps nowhere better expressed than in Desert Sun Publishing Co. v. Superior Court (1979) 97 Cal. App. 3d 49, 51 [158 Cal. Rptr. 519]): "It is an essential part of our national heritage that an irresponsible slob can stand on a street corner and, with impunity, heap invective on all of us in public office....

"Our political history reeks of unfair, intemperate, scurrilous and irresponsible charges against those in or seeking public office. Washington was called a murderer, Jefferson a blackguard, a knave and insane (Mad Tom), Henry Clay a pimp, Andrew Jackson a murderer and an adulterer, and Andrew Johnson and Ulysses Grant drunkards. Lincoln was called a half-witted usurper, a baboon, a gorilla, a ghoul. Theodore Roosevelt was castigated as a traitor to his class, and Franklin Delano Roosevelt as a traitor to his country. Dwight D. Eisenhower was charged with being a conscious agent of the Communist Conspiracy."

The Times' contention that "angry," "shouted," and "stormed," are simply not defamatory in any context may also have merit but we need look no further than the opinion-fact question to dispose of the issue. Also, it is of no significance that the phrase "kangaroo court" may be a quotation of a third party's opinion. As a third party opinion it is doubly protected: "[t]he public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." (Edwards v. National Audubon Society, Inc. (2d Cir.1977) 556 F.2d 113, 120; cited with approval in Weingarten v. Block (1980) 102 Cal. App. 3d 129, 148 [162 Cal. Rptr. 701].)

The argument that Grillo was libeled by the printing of an admittedly accurate quotation in an incorrect context (the "red tape" statement) was not raised in the affidavits below or in the brief filed in opposition to the motion, except in the most general of senses. Neither is it mentioned in the complaint, which is quite specific as to the Editorial but vague and general as to the Article.^[2] (3) Since defendants' affidavits were clearly adequate to establish the accuracy of the Article, it was incumbent upon plaintiff to raise a triable issue of fact by counteraffidavit to avoid the thrust of the motion.^[3] (Southern Pacific Co. v. Fish (1958) 166 Cal. App. 2d 353, 366 [333 P.2d 133].) This was not done with respect to the "red tape" statements.

Ordinary rules of appellate procedure might thus foreclose the raising of this point on appeal, but Grillo's belated argument lacks merit in any event. (4) A fair and true report of a judicial proceeding is privileged. (Civ. Code, § 47, subd. 4.) Thus, a fair and true report of a known falsehood concerning a private citizen uttered in a judicial proceeding is not actionable. (Weingarten v. Block, supra, 102 Cal. App. 3d 129, 148.) If the object of the statement is the presiding judicial officer himself, even a report which is not fair and true will not support the imposition of liability in the absence of a showing of malice. (Garrison v. Louisiana (1964) 379 U.S. 64, 76-77 [13 L. Ed. 2d 125, 133-134, 855 S. Ct. 209].) This is so because a judicial officer is a public figure as a matter of law.

The context of the "red tape" statement from the reporter's transcript is as follows: "This court does not ask for anything it did not already have. This court cannot stand shackled, to have to run to the C.A.O.'s office every time a position must be filled, every time a travel request is made. The whole reason Mr. Czarnecki is here is because there is insufficient time to go through this red tape. And the situation in question must be resolved." (J. Appen. to vol. I, pp. 73-74.) The Article stated: "When Farrell suggested Grillo had rushed the contempt without informing Czarnecki of his legal rights or affording him due process, or that Grillo might file a civil suit against the supervisors in Superior Court, Grillo stormed: `There is insufficient time to go through that red tape.'"

The transcript of the contempt hearing supports the fact that the deputy county counsel raised the points referred to in the article; publication of his objections is obviously privileged. (Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal. App. 2d 255 [71 Cal. Rptr. 295]; Williams v. Daily Review, Inc. (1965) 236 Cal. App. 2d 405, 418 [46 Cal. Rptr. 135].) Whether the "red tape" statement related to the alleged infringement of Czarnecki's rights and to the alternative of filing a civil suit or simply to the latter is too fine a distinction to be required of a publication printing "hot" news. A publication is not responsible for every strained interpretation a plaintiff might put on its words. (Forsher v. Bugliosi (1980) 26 Cal. 3d 792, 803 [163 Cal. Rptr. 628, 608 P.2d 716].) In the context of the Article, the "red tape" line literally follows the subject it in fact related to when uttered, the alleged need for urgency in obtaining the tickets. Even applying the "cumulative impact" test of Forsher v. Bugliosi, supra, 26 Cal. 3d 792, 804, the most that can be said is the Article implied Grillo employed harsh methods in a petty matter in the opinion of the reporter. That opinion required no basis in fact, as we discussed previously. And, unfortunately, it appears there was plenty to support it.^[4]

We now turn to the Editorial, apparently the real target of Grillo's suit. (See fn. 3, ante.) First, it should be common knowledge to the average reader that the editorial page is the traditional location of a publication's opinions and frequently the conflicting opinions of others. It is typically devoted to a discussion of ideas, not the transmission of news. For example, one representative definition of the word editorial is: "[E]xpressive of an opinion ... a newspaper or periodical article that is usu[ally] given a special or significant place and that intentionally expresses the views of those in charge of the publication on a matter of current interest; also, an expression of opinion that resembles such an article." Webster's Third New International Dictionary (1967).

Nevertheless, Grillo culls five alleged factual misstatements from the Editorial, which he contends raise triable issues: (1) he "swept into the man's office, cited him for contempt, sentenced him to jail and harangued about separation of powers"; (2) he issued an "illegal court order"; (3) he "wanted the taxpayers to pay his way on a lobbying trip"; (4) he "commandeered the rights of an innocent man and embarked on an odyssey far outside his court's authority"; and (5) he later "changed his mind under pressure from his peers."

(5) A newspaper is perfectly free to opine that court orders are illegal and to criticize judges for violating the rights of innocent persons and exceeding their authority. There is no requirement that opinion and criticism of that sort have any legal or factual basis whatsoever. (Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal. App. 3d 49, 52; Baumgartner v. United States (1944) 322 U.S. 665, 674 [88 L. Ed. 1525, 1531, 64 S. Ct. 1240].) The second and fourth items listed above are nothing more than the subjective opinions of the Times concerning the conduct in office of a public official; they are absolutely protected under the First Amendment.

It is often said the context can determine whether a statement constitutes fact or opinion. (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, 22 Cal. 3d 672, 680.) While the three remaining statements might be considered assertions of fact rather than expressions of opinion in some contexts, a newspaper editorial criticizing the official actions of the presiding judge of the largest municipal court in the state (if not the country), particularly concerning the application of harsh judicial remedies to administrative trivia, is not one of them. Such a "publication may not be dissected and judged word for word or phrase by phrase. The entire publication must be examined." (Desert Sun Publishing Co. v. Superior Court, supra, 97 Cal. App. 3d 49, 52.) The statements that the judge "swept into a man's office," etc., "wanted the taxpayers to pay his way on a lobbying trip," and "changed his mind under pressure from his peers" not only appear to be substantially accurate on this record, in the editorial context they merely express the Times' opinion of what his actions and motivations were. As such they constitute nothing "more than a constitutionally protected expression of severe disapproval of noncriminal conduct." (Okun v. Superior Court, supra, 29 Cal. 3d 442, 459-460.)

In light of the unique censure of his action by the Los Angeles County Bar Association, the event which triggered the Editorial, it is surprising that a man trained in the law would not reconsider rather than compound the matter. Our highest court has repeatedly reminded the judiciary that fragile First Amendment freedoms can be threatened by litigation itself, though no recovery is ever had. (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, 22 Cal. 3d 672, 685; Kaufman v. Fidelity Fed. Sav. & Loan Ass'n. (1983) 140 Cal. App. 3d 913 [189 Cal. Rptr. 818].) Grillo's pursuit of this ill-advised suit does no credit to his former office and suggests his judgment still remains distorted by a festering personal pique concerning this 1976 administrative triviality. Defendants shall recover costs on appeal.

Judgment affirmed.

Trotter, P.J., and Wallin, J., concurred.

Appellant's petition for a hearing by the Supreme Court was denied August 10, 1983.

NOTES

[1] The full text of each publication appears in the attached appendix.

[2] The reason is obvious. The complaint alleges only one retraction demand per Civil Code section 48a. Pursuant to that code section, Grillo would have been limited to special damages based on the Article, since the demand was timely filed only with respect to the editorial. Proof of special damages by defamed public officials is close to impossible. (See Fisher v. Larsen, supra, 138 Cal. App. 3d 627, 635-636 and Southwestern Publishing Co. v. Horsey (9th Cir.1956) 230 F.2d 319.)

[3] Grillo seems to suggest that the trial court had the obligation to compare the Article with the transcript of the contempt hearing to discover issues of fact which he did not think to raise. We disagree. The court is not obligated to comb the record for triable issues not raised by the parties on a motion for summary judgment. Such burdens are fortunately rare in the law. (See People v. Wende (1979) 25 Cal. 3d 436 [158 Cal. Rptr. 839, 600 P.2d 1071].)

[4] We are not impressed with the often disingenuous affidavit filed by Grillo in opposition to the motion for summary judgment. There, for example, he states he never intended to actually jail Czarnecki, contrary to his statement at the hearing itself that the contempt sentence was both punitive and coercive. He also claims that a San Bernardino civil proceeding against the County of Los Angeles, which confirmed his right to the tickets, somehow vindicated the manner in which he originally attempted to obtain them, an obvious non sequitur.