ROSENTHAL v. REGENTS OF UNIVERSITY OF CALIFORNIA (1990)

Appellant Paul I. Rosenthal, a professor and former chair of the Communications Studies Program (CSP) at UCLA, appeals from a summary judgment in favor of respondent Regents of the University of California.   He had sued for libel, claiming statements in a report by the Committee on Undergraduate Courses and Curricula (CUCC) defamed him.

We agree with the trial court that the subject statements are privileged communications under Civil Code section 47, subdivision 3, and therefore affirm the judgment.

Procedural History and Statement of Facts

On March 13, 1986, appellant filed his complaint for libel, alleging that statements in the CUCC report of March 14, 1985, were false, made with malice, and tend to injure him by exposing him “to ridicule, contempt, obloquy, and hatred” and also tend to “injure him specifically in his profession by imputing to him a general disqualification in those respects which the occupation peculiarly requires.”   He claims the following statements impugn his leadership abilities as chair of the CSP and defame him:

“In practice, the administering Committee [of the CSP] played little part in the ongoing affairs of the Program.   Committee meetings were infrequent and seemed to have served mainly to ratify the actions of the Chair.   Indeed, all phases of the operation of the Program appear to have been devoid of systematic consultative procedures;  ․ It appears that the concern voiced in the previous CUCC review as to ‘one-man rule’ was well-founded.

“They [the faculty of the Communication Studies Program] are not, however, an especially close-knit or collegial group.   In part, this probably reflects the absence of systematic consultative procedures in the Program;

“However, as Program Chair, he [appellant] did not always use those resources which were always available to best advantage,

“․ FTE's, [Full Term Equivalents], given to the Program have not always been utilized in timely and effective fashion, ․

“․ and the problems created thereby were exacerbated by the failure of the Program leadership at certain crucial junctures to seize the initiative and exploit windows of opportunity.

“Certainly it was unrealistic to think that CS could hold a vacant FTE indefinitely under the conditions of financial stringency characteristic of the periods.”

Appellant alleges the report was seen and read by the entire faculty and student body of the Los Angeles campus of the University of California and was distributed through the campus-wide University mail system.

Respondent answered the complaint almost a year later on March 10, 1987.   The motion for summary judgment was filed over a year after the answer, on April 25, 1988.   The motion, originally scheduled to be heard June 6, 1988, was eventually heard and decided October 25, 1988.

In opposition to the motion for summary judgment, appellant claimed that respondent was suppressing facts;  the subject statements were made with malice;  the statements were statements of fact and not opinion;  and the statements were excessively published.   Appellant supported his opposition with over 300 pages of declarations and exhibits, to which respondent interposed various objections.

Faced with a tentative ruling in favor of respondent, appellant argued at the hearing that a ruling was premature pending resolution of appellant's motion to compel, which might produce evidence of malice.   The court noted that the report said some very positive things about appellant and in any event the privilege of Civil Code section 47, subdivision 3 barred the current action.   The court specifically found that the subject report is a privileged communication and was made to persons interested by persons also interested;  the entire UCLA community is interested as required by Civil Code section 47, subdivision 3;  and no malice has been shown.¹  With regard to the issue of discovery, the court found “no where does it appear that [appellant] has requested the Court's assistance in obtaining discovery when there was plenty of time to do so.”

The trial court's order that judgment be entered was filed November 10, 1988, and a timely appeal was filed therefrom.

Discussion

1. The trial court properly decided the report was protected by Civil Code section 47, subdivision (3).

 Appellant contends the trial court erred in determining the allegedly defamatory statements were privileged under Civil Code section 47, subdivision (3) in that (a) the publication of the statements was not limited to “interested persons”;  (b) a triable issue of fact exists as to whether the statements were published with malice;  and (c) respondent suppressed evidence regarding malice which was necessary to oppose the motion for summary judgment.

 Pursuant to Civil Code section 45, “ ‘Libel is a false and unprivileged publication by writing ․ which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.’ ”   To be actionable, the statement must be both false and a statement of fact, not opinion.   (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259–260, 228 Cal.Rptr. 206, 721 P.2d 87.)

Civil Code section 47, subdivision (3) (hereinafter 47(3)) provides:

“A privileged publication or broadcast is one made ․ [i]n 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 was requested by the person interested to give the information.”  (Emphasis added.)   As this court explained in Rancho La Costa Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 664–665, 165 Cal.Rptr. 347.  “The word ‘interested’ as used in the statute refers to a more direct and immediate concern.   That concern is something other than mere general or idle curiosity of the general readership of newspapers and magazines.”

In our opinion, the communication made in the case at bench meets that test.   The university community, both students and faculty, have a deep and abiding concern with reviews of the various departments at the University.   Theirs is definitely “something other than mere general or idle curiosity” in that their academic careers and choices may well be influenced by such reviews.

The remaining question, then, is whether the statements were made “without malice” so that the privilege attaches as a matter of law within section 47(3) or whether a triable issue of fact remains as to malice, thereby precluding summary judgment.   Appellant has the burden of proving the publication was made with malice.  (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 720, 257 Cal.Rptr. 708, 771 P.2d 406;  Rancho La Costa, Inc. v. Superior Court, supra, 106 Cal.App.3d at p. 668, 165 Cal.Rptr. 347.)  “For purposes of section 47(3), malice has been defined as ‘a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.’  (Agarwal v. Johnson (1979) 25 Cal.3d 932, 944 [160 Cal.Rptr. 141, 603 P.2d 58]․)”  (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d at pp. 723, 745, 257 Cal.Rptr. 708, 771 P.2d 406 [holding there is no “public-interest privilege” under section 47(3) to the news communications industry to make false statements regarding a private individual].)  The record before the trial court did not raise a material issue of fact regarding malice.

The report as a whole, while noting the controversies arising at the inception of the Communication Studies Program and critical of his administrative leadership, was not unfavorable to appellant.   For example, the report stated the CSP faculty “consists of strongly motivated, dedicated individuals who are devoted to the Program and are sincere and heartfelt partisans of it.”   More personally, “Professor Rosenthal has long played an essential role, both in starting the Program and in keeping it alive in the face of much criticism.   His skills were invaluable to these enterprises, and he is a respected teacher and counsellor to the students.”

The report favorably noted that for the seven faculty of the CSP, unlike faculty in other interdepartmental programs (IPs), “there is no such separate locus of loyalty, support, and academic intercourse.   CS is primary, not secondary, for them.”   The report also notes the CSP differs from other IPs in offering many undergraduate courses of its own and also has formalized specializations, in Interpersonal Communication and in Mass Communication.

The report favorably remarked about other parts of the CSP.   There are 600–700 applicants for approximately 125 openings each year, and the students admitted to the CSP “form an alert, attractive and articulate group, representing some of the best that UCLA has to offer.   Their loyalty to the Program is impressive.”   Thirteen per cent of CS majors are admitted to Phi Beta Kappa, compared to 5.5 per cent of the graduating seniors campus-wide.

Moreover, we fail to see evidence of malice in the documentation reviewed by the trial court.   In addition, “ ‘If the publication is made for the purpose of protecting the interest in question, the fact that the publication is inspired in part by resent or indignation at the supposed misconduct of the person defamed does not constitute an abuse of the privilege.’ ”  (Williams v. Taylor (1982) 129 Cal.App.3d 745, 752–753, 181 Cal.Rptr. 423, quoting from the Second Restatement of Torts, sec. 603, Comment A at pp. 292–293.)

 Neither do we believe the trial court had any obligation to delay ruling on the motion for summary judgment.   Although discovery was pending in a parallel case brought by appellant for slander arising from comments allegedly made in a meeting related to the report, the discovery attempted in the case at bench was delayed past the point where the trial court would abuse its discretion by not granting a continuance.  (See Code Civ.Proc., § 437c, subd. (h).)  The complaint had been filed over two years before the motion for summary judgment was filed, and appellant had ample time to attempt discovery in the case at bench.   His dilatory attempts and belated lodging of Professor Bauer's deposition do not entitle him to relief.²

2. Most of the statements were also nonactionable as opinion.

 Appellant contends a triable issue of the fact exists as to whether allegedly defamatory statements constitute fact, in which case they were actionable, or opinion, in which case they are not actionable even if unprivileged.  (See Dong v. Board of Trustees (1987) 191 Cal.App.3d 1572, 1586, 236 Cal.Rptr. 912.)

Although the trial court did not reach the question of whether the statements were nonactionable statements of opinion, not fact, “It is well settled that ‘[i]f the decision of the lower court is right, the judgment or order will be affirmed regardless of the correctness of the grounds upon which the court reached its conclusion․’ ”  (Malmstrom v. Kaiser Aluminum & Chemical Corp. (1986) 187 Cal.App.3d 299, 308, 231 Cal.Rptr. 820;  emphasis in original.)   Moreover, the question of whether a statement is one of fact or of opinion is a question of law to be decided by the court.  (Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d at p. 260, 228 Cal.Rptr. 206, 721 P.2d 87.)

“The distinction as to what is a statement of fact and what is a statement of opinion is frequently a difficult one․  [¶] California courts have developed a ‘totality of the circumstances' test to determine whether an alleged defamatory statement is one of fact or of opinion.”  (Ibid.)  The language must be examined, and where the language is “ ‘cautiously phrased in terms of apparency,’ the statement is less likely to be reasonably understood as a statement of fact rather than opinion.  [Citation.]”  (Id., at pp. 260–261, 228 Cal.Rptr. 206, 721 P.2d 87;  footnote omitted.)   Furthermore, the context in which the statement was made must be considered.  (Id., at p. 261, 228 Cal.Rptr. 206, 721 P.2d 87.)

We have reviewed the statements appellant claims constitute libel.   They are opinions of the reviewing committee.   Appellant disputes the validity of some of the “facts” on which the opinions are based and, certainly, would draw different conclusions from the same facts.   But we do not find the statements about which he complains to be actionable libel;  rather, they are opinions, protected speech under the First Amendment.  (Dong v. Board of Trustees, supra, 191 Cal.App.3d at p. 1586, 236 Cal.Rptr. 912.)   Indeed, we agree with the trial court's observation to appellant that “[i]f you did prevail in this case, there could never be a committee which took exception to any activity—ever.”

The judgment is affirmed.   Appellant is to bear costs on appeal.

FOOTNOTES

1.   Having found for respondent on the issue of privilege, the court found it was not necessary to make a finding on the issue of opinion versus fact.

2.   The complaint was filed March 13, 1986;  and respondent answered on March 10, 1987, filing its motion for summary judgment April 25, 1988.   The motion was initially set for hearing on June 6, 1988, but was continued to June 29 on request of the moving party.   On June 29, 1988, the trial court ordered appellant removed as co-counsel “as he is not admitted to the Bar.”   Appellant thereafter, on August 3, 1988, substituted himself in as counsel in propria persona.On September 7, 1988, he filed a motion for order compelling defendants to produce documents, setting the hearing for November 11.   In a supporting declaration, appellant declared he had served two notices to produce on June 29, 1988.Appellant took the deposition of Mario Baur, chair of the committee that prepared the subject CUCC report, on September 9, 1988.   On September 12, new counsel was substituted in to replace appellant.   On September 15, 1988, the trial court continued the hearing on the motion for summary judgment to October 25 in order for appellant to have time to reduce his 49 page opposition to no more than 25 pages.   On the date set for the hearing, appellant attempted to file the transcript of Mario Baur's deposition.   The court allowed him to lodge the deposition but stated “I'm certainly not going to read it.”

ROTH, Presiding Justice.

GATES and FUKUTO, JJ., concur.