Opinion
No. B197536.
April 11, 2008. [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I., II. and III.A.
Appeal from the Superior Court of Los Angeles County, No. SC088662, John Segal, Judge.
Law Offices of Russell F. Behjatnia and Russell F. Behjatnia for Plaintiff and Appellant.
Wyman Isaacs and David Boren for Defendants and Respondents.
OPINION
Marie Rosa Martinelli brought this action against International House USA and its executive director for libel, slander, emotional distress and invasion of privacy, alleging she was defamed by defendants' accusations that she had asked defendants to ignore federal immigration law and not report Martinelli's niece to the United States Immigration and Customs Enforcement agency (ICE) for violation of her student visa. Martinelli also alleged that defendants' employees made slanderous statements about her to her niece.
ICE is the successor to the Immigration and Naturalization Service (INS).
The trial court sustained defendants' demurrers to the causes of action for infliction of emotional distress and invasion of privacy without leave to amend and granted defendants' motion for summary adjudication as to the libel and slander causes of action.
Martinelli filed a timely appeal from the final judgment. We affirm.
FACTS AND PROCEEDINGS BELOW
The following facts are undisputed.
Marie Martinelli is a lawyer licensed to practice in California. Her family also operates an insurance agency. Martinelli's niece, Luisa Fossati, is an Italian national who came to the United States in March 2005 on a student visa. Martinelli enrolled Fossati in an English language program at International House. Fossati lived with Martinelli while she attended classes. Fossati's student visa prohibited her from working in the United States except under limited circumstances.
In July 2005, International House sent a report to ICE stating that it had terminated Fossati as a student because she accepted employment in violation of the terms of her visa. The report further stated: "[Fossati] is represented by her aunt, Marie Rosa Martinelli, who is an attorney. International House is reporting this attorney to the California State Bar for asking International House to ignore INS regulations." A few days later International House faxed a copy of the ICE report to Martinelli's insurance office addressed to Martinelli's daughter, Monique Palmieri, who worked for Martinelli in her office. Palmieri read the report.
In October 2005, Martinelli wrote to International House regarding Fossati's immigration status and her status at the school. International House responded in a letter it addressed to Martinelli and faxed to the telephone number on Martinelli's law office letterhead. The letter accused Martinelli of asking International House "not to report [Fossati] to INS, knowing that she was breaking INS regulations." Palmieri picked up this letter from the office fax machine and read it.
Fossati testified at her deposition that while she was enrolled at International House employees there said "my aunt[] wasn't taking care of me, she didn't give a damn about me."
Martinelli brought this action against International House and its executive director alleging causes of action for libel, slander, infliction of emotional distress and invasion of privacy.
The trial court sustained defendants' demurrers to the causes of action for infliction of emotional distress and invasion of privacy without leave to amend based on the "single publication rule" (Civ. Code, § 3425.3) and granted defendants' motion for summary adjudication on Martinelli's defamation claims.
DISCUSSION
I. DEMURRER TO THE CAUSES OF ACTION FOR INFLICTION OF EMOTIONAL DISTRESS AND INVASION OF PRIVACY.The trial court sustained defendants' demurrers to Martinelli's causes of action for intentional and negligent infliction of emotional distress and invasion of privacy under the "single publication rule" of Civil Code section 3425.3. That statute states in relevant part: "No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture." The trial court's ruling was correct. Because Martinelli's causes of action for emotional distress and invasion of privacy are dependent on the alleged libel and slander, under Civil Code section 3425.3 the former are subsumed into the latter. ( M.G. v. Time Warner (2001) 89 Cal.App.4th 623, 630.) Martinelli contends Civil Code section 3425.3 is intended to apply only to publications by the mass media and to performances meant for a mass audience. She cites no case authority or legislative history to support her contention. Our Supreme Court rejected Martinelli's "mass media" theory in Hebrew Academy of San Francisco v. Goldman (2007) 42 Cal.4th 883 ( Hebrew Academy).) Hebrew Academy applied the single publication rule to transcripts of oral interviews even though "fewer than 10 copies of the transcripts" were published. ( Hebrew Academy, supra, 42 Cal.4th at p. 888.) The court held "[t]he single publication rule . . . as codified in Civil Code section 3425.3 applies without limitation to all publications" "including those that receive only limited circulation[.]" ( Id. at p. 893, italics added.) In the case before us, the evidence shows that International House produced only two copies of the ICE report. It sent one to ICE and the other to Martinelli. Because two is "fewer than 10," Hebrew Academy supports application of the single publication rule to the ICE report.
See footnote, ante, page 1332.
See footnote, ante, page 1332.
II. SUMMARY ADJUDICATION OF THE CAUSE OF ACTION FOR SLANDER.Martinelli's slander cause of action is based on her claim that defendants' employees made disparaging statements about her to her niece, Fossati. Defendants are entitled to summary adjudication of the slander cause of action because they showed that Martinelli does not possess and cannot reasonably obtain evidence to support her claim. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) In her discovery responses, Martinelli stated that defendant's employees slandered her by telling Fossati that Martinelli wanted her to fail, had no interest in her well-being, was not concerned about her or her future and that Martinelli was counseling her to ignore and break the law. Fossati was asked at her deposition whether any employee of International House made any of the statements alleged by Martinelli. Fossati testified she could only recall someone stating "my aunt? wasn't taking care of me, she didn't give a damn about me." To be defamatory, a statement must be a provably false assertion of fact, not an opinion. ( Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260.) Statements that Martinelli was not "taking care" of her niece or did not "give a damn" about her are not provably false assertions of fact. Rather, they are "'broad, unfocused and wholly subjective comment[s.]'" ( Copp v. Paxton (1996) 45 Cal.App.4th 829, 837, citation omitted.) As such the statements constitute non-actionable opinion. ( Cf. Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 390 [defendant's reference to plaintiff as "intolerant" held "too vague to be actionable"].)
III. SUMMARY ADJUDICATIONS OF THE CAUSES OF ACTION FOR LIBEL.
Martinelli alleges defendant published three libelous statements about her, thus giving rise to three causes of action. The first libel occurred in the report International House sent to ICE in July 2005 advising the agency that it had terminated Fossati from its language training program because she had violated the terms of her student visa by taking a job. In that report defendant stated it was reporting Martinelli to the California State Bar "for asking International House to ignore INS regulations." The second libel also occurred in July 2005 when International House faxed a copy of the ICE report to Martinelli's insurance agency addressed to Martinelli's daughter who worked in the office. The third libel occurred in October 2005 when International House faxed a letter to Martinelli at the number on Martinelli's law office letterhead. The letter accused Martinelli of asking International House "not to report [Fossati] to INS, knowing that she was breaking INS regulations."
For purposes of its summary adjudication motion, International House does not deny it defamed Martinelli by stating that Martinelli asked International House to ignore her niece's violation of INS student visa regulations. International House maintains, however, that its statement to ICE was absolutely privileged under the official proceeding privilege (Civ. Code, § 47, subd. (b)) and that faxing the ICE statement and the October 2005 letter to Martinelli to her general office fax machines did not constitute publication of the defamatory statements.
We conclude that faxing the ICE report and the October letter to Martinelli's general office fax machines did not constitute publication to a third party. We discuss International House's contention regarding the official proceeding privilege in an unpublished section of this opinion.
A. The Official Proceedings Privilege. International House contends its statement in the ICE report that Martinelli had asked it to violate INS regulations was absolutely privileged under the official proceeding privilege of Civil Code section 47, subdivision (b), which states: "A privileged publication or broadcast is one made . . . in any . . . official proceeding authorized by law." The common law has long recognized that a citizen's defamatory complaint of wrongdoing to a government board or agency may be privileged. ( Hebditch v. Macllwaine (1894) 2 Q.B. 54, 62, opn. of Smith, L.J.) California has adopted this rule as part of the official proceedings privilege of Civil Code section 47, subdivision (b). In Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 364, the court held that the absolute official proceedings privilege applied to a bank's report to the police that plaintiff was attempting to negotiate a counterfeit check. The court reasoned that "'a communication concerning possible wrongdoing, made to an official government agency such as a local police department, and which communication is designed to prompt action by that entity, is as much a part of an "official proceeding" as a communication made after an official investigation has commenced.'" (Citation omitted.) As Hagberg and other decisions have recognized, the "policy underlying the privilege is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing." ( Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55.) In the case before us, International House sent a report to ICE through SEVIS accusing Martinelli of attempting to obstruct International House's efforts to comply with federal immigration law with respect to one of its students. It is undisputed that ICE is a federal agency charged with the enforcement of the immigration laws and Martinelli conceded at oral argument that ICE had the authority to act on International House's allegation. Martinelli maintains, however, that International House failed to show that the bureau within ICE which administers SEVIS had such authority. Such a showing was unnecessary. International House's report was "designed to prompt action" by ICE, which is all that is required. ( Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 360.)
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Based on reports from approved educational institutions, the Student and Exchange Visitor Information System (SEVIS) electronically tracks and monitors foreign students in the United States including maintenance of their student status at the institution. (Wong, Implementing the USA Patriot Act: A Case Study of the Student and Exchange Visitor Information System (SEVIS) (2006) B.Y.U. Educ. L.J. 379, 390.)
B. Publication of the defamatory statements.
This appeal raises a question of first impression: Does sending a defamatory communication to a general fax machine in the plaintiff's office, where it is read by a third party, constitute a publication of the communication? We conclude that under the facts of this case the communications were not published.
1. The October 2005 Fax.
In order for a defendant to be liable for defamation "[t]he defamatory matter must be 'published,' i.e., communicated to some third person who understands its defamatory meaning and application to the plaintiff." (5 Witkin, Summary of Cal. Law (10th ed.) Torts, § 535, p. 786.)
In October 2005, Martinelli wrote a letter to International House on her law office letterhead. In that letter Martinelli complained about the way her niece, Fossati, had been treated at the school, objected to statements International House employees had made to Fossati about Martinelli and protested the statement about her in the ICE report, discussed above. Later that same month, International House responded to Martinelli in a letter again accusing her of asking International House "not to report [Fossati] to INS, knowing that she was breaking INS regulations." International House faxed this letter to Martinelli using the fax number on Martinelli's law office letterhead. Martinelli's daughter, Palmieri, retrieved this letter from the office fax machine and read it.
We have found only one case addressing a similar situation. In that case, counsel for parties who were in a business dispute with the plaintiff faxed a letter containing a defamatory statement about the plaintiff to Feinberg, the plaintiff's counsel, using the fax number on Feinberg's letterhead. Other attorneys in Feinberg's office who were not involved in representing the plaintiff read the letter. ( Gomberg v. Zwick, Friedman Goldbaum (Fla.Dist.Ct.App. 1997) 693 So.2d 1064, 1065.) The court held that sending the defamatory letter to Feinberg did not constitute publication for two reasons. First, "Feinberg invited correspondence by facsimile when he wrote to [defendants] on stationery that included his fax number." ( Ibid.) Furthermore, "[b]ecause Feinberg invited the fax, he had the affirmative duty to protect on the receiving end any client confidences contained therein. It would be unreasonable to place a duty on the sender to investigate the status of an attorney's designated fax machine in order to shield the sender from liability." ( Id. at pp. 1065-1066.)
We find the court's reasoning persuasive. By sending a letter to International House on letterhead bearing her general law office fax number, and disputing its allegation of her wrongdoing in that letter, Martinelli invited return correspondence from International House to that fax number. In inviting correspondence to that fax number Martinelli undertook the burden to protect her own confidentiality. It would be unreasonable to place a duty on International House to determine who had access to Martinelli's fax machine in order to shield itself from liability.
2. The July 2005 Fax.
The July 2005 fax which transmitted a copy of the ICE report presents a closer case because that fax was not sent to Martinelli at her law office but was sent to Martinelli's daughter, Palmieri, at the family's insurance agency. Nevertheless, under the facts in this case we conclude that the fax did not constitute a publication.
Martinelli's niece, Fossati, gave International House the insurance agency's fax number as a means of communicating with Martinelli on issues pertaining to her studies at International House and her immigration status. International House knew from previous contacts with Martinelli that she was deeply interested and involved in those issues. It sent the fax to Palmieri's attention because Fossati told International House employees that Palmieri "was responsible for the daily activities in Martinelli's office and worked closely with her mother" and because it knew Martinelli would not be in the office that day. Under these facts, International House could reasonably believe, based on Fossati's statements and Martinelli's previous involvement in Fossati's relations with International House, that Martinelli expected the insurance agency fax number to be used for communications regarding Fossati and that sending the fax to the attention of Martinelli's daughter, Palmieri, was equivalent to sending the fax to Martinelli.
Because we find the July 2005 fax was not published, we do not address the question whether the fax came within the common interest privilege.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal.Mallano, Acting P. J., and Jackson, J.,fn_ concurred.
A petition for a rehearing was denied May 1, 2008, and appellant's petition for review by the Supreme Court was denied June 25, 2008, S163780. George, C. J., and Corrigan, J., did not participate therein.