HOWARD v. OAKLAND TRIBUNE

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Court of Appeal, First District, Division 4, California.

 Martha HOWARD et al., Plaintiffs and Appellants, v. OAKLAND TRIBUNE et al., Defendants and Respondents.

No. A038141.

Decided: March 04, 1988

 Benjamin Lusk, Jr., Oakland, for plaintiffs and appellants. Peter W. Davis, John E. Carne, Crosby, Heafey, Roach & May, P.C., Oakland, for defendants and respondents.

The trial court dismissed defamation actions brought by appellants Martha Howard and Stephen Brooks against respondents Oakland Tribune, publisher Robert Maynard, and reporters Jack Cheevers and Paul Grabowicz after the respondents obtained a summary judgment.   Howard and Brooks appeal, contending that the underlying Tribune articles were not reports of public official proceedings within the meaning of section 47 of the Civil Code,1 and thus were not privileged.   We affirm the judgments.

I. FACTS

On February 28, 1985,2 the Oakland Tribune published an article stating that Oakland's Beebe Children's Center, a state-subsidized child care program, was under investigation by the state Department of Education for alleged misuse of public funds.   Among other charges, the article reported that independent audits of the center on file with the state revealed that appellant Stephen Brooks, husband of Beebe's executive director Delores Brooks, was paid $10,500 for fund-raising services, a practice prohibited by state regulation.   On March 1, the Tribune reported that the department had cancelled its contract with Beebe, citing 20 violations of state law and its contract.   The article repeated the allegation that Stephen Brooks was paid $10,500 for fund-raising services.   Stephen Brooks sought a retraction from the Tribune, without success.  (§ 48a.)

On March 22, the Tribune published a report that the Department of Education had asked Attorney General John Van de Kamp to investigate allegations that Delores Brooks had misused public funds.3  According to this article, the state cancelled its contract with Beebe Children's Center because its director allegedly used state child care funds for personal, political, and charitable purposes.   The article reported that a 36–page “Summary of Findings” from the education department's investigation alleged that Beebe officials committed hundreds of violations of the center's state contract and misused tens of thousands of dollars in state funds.   Specifically, the report alleged that the center did not collect $1,337 in fees for child care services provided to appellant Martha Howard, Delores Brooks' sister;  and that Stephen Brooks was improperly paid $10,500 in fund-raising costs.   After the article was published, Stephen Brooks lost his job as executive director of the Bay Area Black United Fund and Howard was forced to  leave her employment as a Beebe administrator.   Ultimately, the Department of Education reinstated Beebe's contract and its funding.

Martha Howard and Stephen Brooks each brought defamation actions against the Oakland Tribune, publisher Robert Maynard, and reporters Jack Cheevers and Paul Grabowicz.4  The first two articles formed the basis of Brooks' action;  Howard cited the March 22 article as the defamatory publication in her complaint.

The parties stipulated that the articles were accurate accounts of the Department of Education's “Summary of Findings” from their review of the Beebe child care center.   In the trial court, Howard and Brooks argued that the Tribune could be held liable for defamation if the “Summary of Findings” was false, even if the newspaper's account of it was accurate.   The parties filed contradictory declarations from education officials on the issue of whether the “Summary of Findings” was a public document and/or arose out of a public official proceeding as that term is used in section 47, subdivision 4.

The two actions were consolidated and the Tribune moved for summary judgment, contending that the articles were “privileged as reports of public official proceedings” within the meaning of section 47, subdivision 4.   Summary judgments were granted and the defamation actions were dismissed.

II. PRIVILEGE

Under section 47, subdivision 4, “a fair and true report in a public journal” of a “public official proceeding” or “of anything said in the course thereof” is privileged.  (§ 47, subd. 4.) 5  On appeal, Howard and Brooks challenge the trial court's summary judgment by disputing the finding on which it was based—the conclusion that the Tribune articles were privileged because the reported proceedings were “public official proceedings” within the meaning of this provision.6

 A trial court faced with a motion for summary judgment must decide whether the plaintiff has presented any facts that give rise to a triable  issue or defense.  (Trailer Train Co. v. State Bd. of Equalization (1986) 180 Cal.App.3d 565, 586, 225 Cal.Rptr. 717;  see Code Civ.Proc., § 437c.)   If there is no triable issue of fact, the moving party is entitled to judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c);  see Hayward v. Watsonville Register–Parajonian and Sun (1968) 265 Cal.App.2d 255, 262, 71 Cal.Rptr. 295 [summary judgment properly granted in § 47, subd. 4 case].)   Whether or not a privileged occasion exists within the meaning of section 47, subdivision 4 is a question of law.  (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 386, 90 Cal.Rptr. 188;  see 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 312, p. 2582;  see also Southern California Edison Co. v. State Board of Equalization (1972) 7 Cal.3d 652, 659, fn. 8, 102 Cal.Rptr. 766, 498 P.2d 1014 [statutory application to uncontradicted facts presents question of law].)

 One appellate court has construed section 47, subdivision 4's reference to “public official proceeding” to include a police investigation into allegations of use of excessive force by police.  (Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073, 199 Cal.Rptr. 221.)   While the Green language is dictum, its interpretation is consistent with what we construe to be the plain meaning of section 47, subdivision 4.   If a police internal affairs investigation is a “public official proceeding” within the meaning of this statute, then a state administrative agency investigation into the expenditure of public funds must also be such a proceeding.   The Tribune report was privileged.  (§ 47, subd. 4.)

 The privilege accorded by section 47, subdivision 4 has been absolute since 1945 when the Legislature deleted the qualifying requirement that such privileged publications be made without malice.   Thus, neither malice on the part of the media nor the fact that the author of the reported statements may have abused his or her personal privilege (see § 47, subds. 1–3) will defeat the media privilege codified in this statute.  (Green v. Cortez, supra, 151 Cal.App.3d at pp. 1074–1075, 199 Cal.Rptr. 221.)   As the trial court correctly interpreted section 47, subdivision 4 and there was no triable issue of fact, the Tribune was entitled to summary judgment as a matter of law.  (See Code Civ.Proc., § 473c, subd. (c).)

III.**

 The judgments are affirmed.

APPENDIX A

APPENDIX B

APPENDIX C

FOOTNOTES

1.   All statutory references are to the Civil Code, unless otherwise indicated.

2.   All dates refer to the 1985 calendar year.

3.   Copies of the three Oakland Tribune articles are appended to this opinion.

4.   For convenience, all respondents will be referred to as “the Tribune.”

5.   As Howard and Brooks concede that the publication was a fair and true report in a public journal, we need not address these issues.  (See Green v. Cortez (1984) 151 Cal.App.3d 1068, 1073, 199 Cal.Rptr. 221.)

6.   We were not aided in our resolution of this appeal by the appellants' opening brief, which was riddled with inaccurate and incomplete case citations and which frequently referred to cases without reference to the pages on which the cited holdings appear.  (See Cal. Style Manual (3d ed. 1986) § 99.)

FOOTNOTE.   See fn. *, ante.

 CHANNELL, Associate Justice.

ANDERSON, P.J., and POCHÉ, J., concur.

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