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Court of Appeal, Third District, California.

Lyman H. SANBORN, Plaintiff and Appellant, v. McCLATCHY NEWSPAPERS et al., Defendants,

The Chronicle Publishing Company, Defendant and Respondent. Lyman H. SANBORN, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO and Martin Mongan, Defendants and Appellants.

Civ. 14511.

Decided: March 24, 1976

Milton L. McGhee, Sacramento, for plaintiff-appellant. Cooper, White & Cooper, by Robert R. Callan, San Francisco, for defendant-respondent. Thomas M. O'Connor, City Atty., by John S. Kenny, Deputy City Atty., San Francisco, for defendants-appellants.

In February of 1969, plaintiff Sanborn sued defendants The Chronicle Publishing Company, the City and County of San Francisco and Martin Mongan for defamation. After nearly five years of pretrial procedures, plaintiff moved to advance the date of trial to within the impending statutory five-year period prescribed by Code of Civil Procedure section 583, subdivision (a). The court denied as to Chronicle and the case against it was dismissed by the court on its own motion under 583, subdivision (a). Plaintiff herein appeals from the judgment of dismissal. The court granted the motion as to the City and County of San Francisco and Martin Mongan. Trial was held with verdict and judgment for the plaintiff. The City and County of San Francisco and Martin Mongan appeal from the judgment for plaintiff. These two appeals were consolidated for decision.

Plaintiff contends that the trial court abused it discretion in dismissing the action against Chronicle for failure to prosecute under Code of Civil Procedure section 583, subdivision (a), relying on Weeks v. Roverts (1968) 68 Cal.2d 802, 69 Cal.Rptr. 305, 442 P.2d 361.

Section 583 of the Code of Civil Procedure provides, in pertinent part: ‘(a) The court, in its discretion, may dismiss an action for want of prosecution pursuant to this subdivision if it is not brought to trial within two years after it was filed. The procedure for obtaining such dismissal shall be in accordance with rules adopted by the Judicial Council.

‘(b) Any action heretofore or hereafter commenced shall be dismissed . . . on motion of the defendant, after due notice to plaintiff or by the court upon its own motion, unless such action is brought to trial within five years after the plaintiff has filed his action, except where the parties have filed a stipulation in writing that the time may be extended.’

Subdivision (a) places no restrictions on the exercise of the trial court's discretion and it will be disturbed only in cases of manifest abuse. (Denham v. Superior Court (1970) 2 Cal.3d 557, 563–564, 86 Cal.Rptr. 65, 468 P.2d 193.)

The record in this case reveals no abuse of discretion. The complaint was filed on February 19, 1969. Over the next several months the Chronicle was given several extensions of time to plead by plaintiff's attorney, the last one being an open extension of time to plead subject to written notice. During this time plaintiff's attorney advised that he wanted a ‘nuisance’ settlement from the Chronicle and made a demand of $500. Plaintiff subsequently substituted attorneys and an amended complaint was filed February 6, 1970. Chronicle was not served with the amended complaint until early June 1970. On July 6, 1970, the Chronicle filed a demurrer to the complaint. The demurrer was overruled on August 7, 1970. On October 18, 1971, plaintiff served Chronicle with an at-issue memorandum. On October 22, 1971, Chronicle filed a memorandum that the case was not at issue as to it on the ground that to date plaintiff had not given notice of the court's ruling on Chronicle's demurrer as provided by Code of Civil Procedure, section 472b and California Rules of Court, rule 204.

A pretrial conference was set for November 22, 1972. Chronicle filed a pretrial statement submitting that the case was not at issue as to it since to date it had not been given notice of the court's ruling on the demurrer and had therefore not been required to answer the complaint. On November 22, prior to the conference, Chronicle filed its notice of motion for judgment on the pleadings. At the pretrial conference, at which plaintiff was present, a settlement agreement was reached between Chronicle and plaintiff's then attorney. Thereafter the pretrial conference was continued to December 19, 1972, and Chronicle took its motion for judgment on the pleadings off calendar in reliance on the proposed settlement. Chronicle did not attend the conference on December 19, at which time the court determined that the matter was at issue as to the remaining parties and the case was set for trial for March 12, 1973.

On January 24, 1973, y 24, 1973, plaintiff again substituted counsel, and under new counsel noticed a motion on February 5, 1973, to vacate or modify the existing pretrial conference order ‘to clear up the status of THE CHRONICLE PUBLISHING COMPANY as an active defendant in the litigation’ and served Chronicle with interrogatories. On February 23, 1973, plaintiff finally notified Chronicle of the overruling of their demurred on August 7, 1970. Chronicle answered the complaint on March 13, 1973.

Plaintiff filed an at-issue memorandum on March 14, 1973. On April 25, 1973, he filed his first notice of motion to advance the cause for trial within the five-year bar of Code of Civil Procedure section 583. May 7, 1973, Chronicle filed a notice of motion for summary judgment on the ground that the action had been settled, and a motion for judgment on the pleadings. The motion for summary judgment was denied on June 27, 1973, and the motion for judgment on the pleadings was granted on August 13, 1973, unless plaintiff amended the complaint to state a cause of action. Plaintiff filed a second amended complaint on August 22, 1973. Chronicle's demurrer to the second amended complaint was overruled on October 17, 1973.

Plaintiff filed his memorandum that civil case was once again at issue on October 29, 1973, and noticed a motion to advance cause for trial on October 30, 1973. Chronicle answered the second amended complaint on November 7, 1973. Thereafter on November 15, 1973, the trial court denied plaintiff's motion to advance because the at-issue memorandum had not been properly filed, and ordered the at-issue memorandum stricken on November 16, 1973.

Plaintiff filed a third at-issue memorandum on December 3, 1973, and noticed a motion to advance cause for trial on December 11, 1973. On December 31, 1973, the trial court denied the motion to advance as to Chronicle and on its own motion dismissed the action against Chronicle pursuant to Code of Civil Procedure section 583, subdivision (a).

Plaintiff's only arguments in the appellate briefs, as well as in argument to the trial court, in support of his motion to advance are that he was ready to proceed to trial and under Weeks, supra, the court should have given him a trial date. He makes no showing of excuse for the delay, but merely supports an assertion of due diligence by listing a chronology of the various papers in the court's file. The record in the lower court does not reflect what showing of excuse was made orally at the hearing on the motion to advance. The record reflects that the trial court had good cause to dismiss on its own motion. The plaintiff has failed to meet his burden of showing excusable delay.

Plaintiff's reliance on Weeks, supra, is misplaced; that case is detrimental rather than helpful to his argument. Weeks held that: ‘[A] trial court should not confuse and discredit the law by refusing to set a cause within the five-year period because it believes that a discretionary dismissal is warranted. . . . If a court feels impelled to dismiss an action less than five years after its filing for want of prosecution, it should do so and accept review on that basis. It should not exercise its discretion to dismiss on the basis of inconvenience to the court and in the guise of a refusal to specially set. . . . Fault and delay may be ground for dismissal; but court congestion is no reason to preempt one's day in court when there is a reasonable time to provide it.’ (68 Cal.2d at pp. 806–807, 69 Cal.Rptr. at p. 308, 442 P.2d at p. 364.)

It is clear in this case that the trial court followed the dictates of Weeks and accepted review on the basis of a discretionary dismissal for want of prosecution under Code of Civil Procedure section 583, subdivision (a), rather than simply refusing to set the cause for trial. The court's order read:

‘As to defendant Chronicle Publishing Company, again in conformity with the suggestion at the top of Page 808 of the Weeks Opinion, I dismiss the Complaint on my own motion, exercising my discretion under C.C.P. § 583a. Consideration has been given to all the factors mentioned in Court Rule 203.5, with the result that I find the delay in bringing this case to trial as against this defendant to be inexcusable. Justice can be truly served between plaintiff and said defendant only by such dismissal, and I am prepared to accept review on the basis thereof.’

We will affirm the judgment in favor of the defendant Chronicle Publishing Company.

Appeal of Defendants City and County of San Francisco and Martin Mongan.

Plaintiff Sanborn sued county clerk Martin Mongan and the City and County of SanFrancisco on a theory of respondeat superior for defamation. Both defendants were represented by the city attorney. Verdict was returned for Sanborn against both defendants in the amount of $31,650.

In 1968, Sanborn, a branch manager for a Sacramento insurance company, was informed by an acquaintance, John King, that he (King) was entitled to receive the sum of $25,407, which was under attachment in San Francisco. Sanborn sought the release of the money and learned that it had been deposited with defendant Mongan, who had been advised by a deputy city attorney not to release the money without a written order signed by a judge of the superior court.

Sanborn called upon Mongan, discussed at length the reasons why the funds should be released to him as the assignee of John King, and Mongan decided to and did give Sanborn the money.

Eight or nine days later Mr. Samuel, a Deputy Attorney General, presented a court order to the chief deputy county clerk directing the clerk's office to pay the money under attachment to him as representative of the insurance commissioner. The chief deputy learned that Mongan had released the money and said to Mongan, ‘My God, what have you done? We have a judgment for this money and the cashier said you paid the money out eight or nine days ago.’ The men then talked toDeputy City Attorney Gordon who told Mongan, ‘the last thing I told you going out the door was not to pay the money out until you had a judge's order . . ..’ Mr. Gordon and Mr. Samuel told Mongan that he had made a big mistake, and that he was in trouble.

Mongan testified that he knew he had made a mistake, that there was no fraud or trickery involved, but he had simply been persuaded into paying the money out before a court judgment. He knew that it was a rule that he should get a judge's sanction before paying out money like that and he violated that rule. He admitted that he acted hastily and rashly and made a mistake.

After the mistake had been discovered Mongan did not want the press to know about the matter until the money had been recovered. He testified that he was reluctant after being in this bind to go out advertising to the press that he had blundered; he didn's want to appear as a fool to the public press.

On July 1, 1968, the press heard about the matter. Mike Mahoney, a reporter for the San Francisco Chronicle, interviewed Mongan over the telephone and took notes from which he wrote his newspaper story.

In the Chronicle article, Mongan was quoted as saying, ‘It was a real con job.’ ‘The guy out-talked me and convinced me that we were holding his money illegally.’ ‘He said he had been to see the presiding judge and the judge told him he couldn't give him an order on money the court had no jurisdiction over. He ranted and raved and said I was putting his client to a lot of unnecessary expense and trouble, costing him a lot of money.’ The story was picked up by U.P.I. wire service and published in the Sacramento Bee in the area where Sanborn resided. As a result of the article, Sanborn lost his job, suffered embarrassment and ridicule, and resigned from several clubs and organizations.

Respondeat Superior

We initially deal with an issue not raised by either party in the briefs on appeal, but upon which additional briefing was requested by the court at oral argument. At trial, plaintiff alleged and defendants admitted that Mongan was acting in the scope and course of his employment in making the statements to the press. Throughout the course of this appeal, the City and County has steadfastly maintained that position despite the fact that this subject it to respondeat superior liability in the event of any verdict against Mongan. We, however, disagree with the position.

‘[A] public employee is acting in the course and scope of his employment ‘when he is engaged in work he was employed to perform or when the act is an incident to his duty and was performed for the benefit of his employer and not to serve his own purposes or conveniences.’' (Neal v. Gatlin (1973) 35 Cal.App.3d 871, 875, 111 Cal.Rptr. 117, 120; Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 448, 54 Cal.Rptr. 805.) ‘The phrase ‘scope of employment’ has been equated with the express or implied power of the public employee to act in a particular instance, and in evaluating his conduct to determine whether it is within the ambit of his authority we are to look not to the nature of the act itself, but to the purpose or result intended.' (Neal, supra, 35 Cal.App.3d at p. 875, 111 Cal.Rptr. at p. 120.)

The statements made by Mongan could have been of no conceivable benefit to his employer, the City and County of San Francisco. Their purpose was clearly to save Mongan from personal embarrassment and being made to appear a fool in the press. They were an attempt to explain away his mistake, and thus served only his own purpose. Accordingly, we conclude that Mongan was not acting in the scope of his employment in uttering the defamatory statements. Accordingly, the City and County is not liable.

We recognize that the City and County admitted that Mongan was acting in the course of his employment. This it had no power to do. The issue of scope of employment is a question of law when only one conclusion can be draw from the evidence. (Meyer v. Blackman (1963) 59 Cal.2d 668, 676, 31 Cal.Rptr. 36, 381 P.2d 916.) The evidence in this case is susceptible of only the inference that Mongan was not acting in the scope of his employment; the issue was therefore one of law. As such, no stipulation or admission by a party that purports to determine it is binding on the court. (Robinson v. Sacramento City, etc., Sch. Dist. (1966) 245 Cal.App.2d 278, 287, 53 Cal.Rptr. 781; De Celle v. City of Alameda (1960) 186 Cal.App.2d 574, 579, 9 Cal.Rptr. 549.) ‘It is well settled that ‘When a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring it.’' (Merchants Fire Assur. Corp. v. Retail Credit Co., Inc. (1962) 206 Cal.App.2d 55, 62, 23 Cal.Rptr. 544, 549; Duncan v. Garrett (1959) 176 Cal.App.2d 291, 294, 1 Cal.Rptr. 459.)

We now turn to the contentions raised on appeal by the defendants.

The case was tried on the theory that Mongan had a qualified privilege under Civil Code section 47, subdivision 3,1 and therefore malice had to be proved by plaintiff Sanborn.

It is contended that the evidence was insufficient to establish actual malice on the part of Mongan.

An appellate court must view the evidence in a light most favorable to the respondent and presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Sedeno (1974) 10 Cal.3d 703, 712, 112 Cal.Rptr. 1, 518 P.2d 913.) If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reconciled with a contrary finding. (People v. Redmond (1969) 71 Cal.2d 745, 755, 79 Cal.Rptr. 529, 457 P.2d 321.) The test is whether substantial evidence supports the jury's conclusion. (Sedeno, supra, 10 Cal.3d at p. 712, 112 Cal.Rptr. 1, 518 P.2d 913.)

Malice in defamation cases means ‘actual’ malice, which is defined as a state of mind arising from harted or ill will. (Civ.Code, § 48a, subd. 4; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 304, p. 2575; Freeman v. Mills (1950) 97 Cal.App.2d 161, 167, 217 P.2d 687.) It may be established by direct proof or circumstantial evidence from which the jury might infer it as a fact. (Id. at p. 169, 217 P.2d 687.) It may be inferred if the defendant does not have reasonable or probable cause to believe his statement to be true. (Statiners Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 418, 42 Cal.Rptr. 449, 398 P.2d 785.) Moreover, a qualified privilege is lost if the publication is motivated by any cause other than the desire to protect the interest for the protection of which the privilege is given. (Freeman, supra, 97 Cal.App.2d at p. 167, 217 P.2d 687.) The question then is whether there is any evidence which would have supported a finding by the jury that Mongan was motivated by a malicious or other improper motive or published his statement without reasonable grounds for believing it to be true. Clearly there is.

Mongan himself testified that Sanborn did not behave as the newspaper articles described him, and that he did not feel he had been deceived or tricked by Sanborn. Therefore, since on appeal we must assume that he did make the statements as published in the newspaper, his admissions are direct proof that he did not believe the statements to be true. Moreover, there was ample evidence from which the jury could infer that Mongan made the statements with an improper motive other than the desire to protect the interest for the protection of which the privilege is given. The record shows that Mongan did not want to be embarrassed by having the press and public learn of his blunder, and the jury could infer that he would have liked to shift the blame to someone else. There was thus sufficient evidence from which the jury could find malice, and defendants' contention is rejected.

Defendants' next contention is that Mongan is entitled to immunity for the publication even if made with malice, under Government Code section 820.2, which reads: ‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’ The argument made is that Mongan's statements were discretionary rather than ministerial and therefore protected by the statute. However, in view of our conclusion that Mongan was not acting within the scope of his employment, this contention is moot. The statute applies only to discretionary acts performed by public employees in the scope of their employment, and thus can be of no aid to Mongan. (Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 229, 11 Cal.Rptr. 97, 359 P.2d 465; Jones v. Czapkay (1960) 182 Cal.App.2d 192, 198, 6 Cal.Rptr. 182.)

The final contention raised is that Civil Code section 47, subdivision 1, establishes an absolute privilege for Mongan's statements. Section 47, subdivision 1, provides: ‘A privileged publication or broadcast is one made——

‘1. In the proper discharge of an official duty.’

The privilege conferred by subdivision 1 is an absolute one. (Saroyan v. Burkett (1962) 57 Cal.2d 706, 709, 21 Cal.Rptr. 557, 371 P.2d 293.)

‘. . . The California cases interpreting this provision leave no doubt that the absolute privilege under subdivision 1 is extended only to high ranking federal and state officials such as the President of the United States, governors of the states and territories, the members of the President's cabinet, heads of federal agencies, and comparable state officers (White v. State of California, supra [17 Cal.App.3d 621, 95 Cal.Rptr. 175]). In defining the high ranking federal and state officials, the California Supreme Court has adopted section 591 of the Reststement of Torts which reads as follows: “The President of the United State and the Governor of any State or Territory thereof, cabinet officers of the United States and the corresponding officers of any State and Territory thereof are absolutely privileged to publish false and defamatory matter of another in the exercise of an executive function, if the matter has some relation to the executive proceeding in which the officer is acting.” (Saroyan v. Burkett, supra, 57 Cal.2d at p. 710, 21 Cal.Rptr. at p. 560, 371 P.2d at p. 296.)’ (Frisk v. Merrihew (1974) 42 Cal.App.2d 319, 323, 116 CalRptr. 781, 783.)

A county clerk is not within the category of officials listed in section 47, subdivision 1, and has no absolute privilege.

The judgment of dismissal against The Chronicle Publishing Company is affirmed. The judgment in plaintiff Sanborn's favor is affirmed as to Martin Mongan and reversed as to the City and County of San Francisco. The Choronicle Publishing Company is to recover its costs on appeal from plaintiff Sanborn. Plaintiff Sanborn is to recover his costs as to the appeal of Mongan and the City and County of San Francisco.


1.  Section 47, subdivision 3, provides: ‘A privileged publication or broadcast is one made——‘. . ..‘3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.’

REGAN, Associate Justice.

FRIEDMAN, Acting P.J., and EVANS, J., concur.

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