Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. CV155146
ELIA, J.Plaintiff James Shepardson seeks review of an order confirming a settlement. He contends that the court modified the terms of the settlement without his consent. Defendant S. Todd Mitchell has filed no response. We will affirm the order.
Background
In his first amended complaint, plaintiff alleged that he was the heir of Clara Jean Shepardson, who died in September 2005 while being treated at Dominican Hospital (Dominican). S. Todd Mitchell (Dr. Mitchell) was the decedent's primary care physician and the medical director of the nursing facility where the decedent lived until she fell and sustained a serious head injury. The decedent's family believed that the hospital staff and Dr. Mitchell had "mishandl[ed]" her care, and in September 2006 plaintiff, individually and as trustee for the decedent's trust, initiated this action against Dr. Mitchell and Dominican. In the first amended complaint plaintiff asserted elder abuse, wrongful death, intentional and negligent infliction of emotional distress, breach of fiduciary duty, fraud and conspiracy, and related causes of action.
On April 11, 2008, plaintiff and Dr. Mitchell appeared for a settlement hearing on the claims against Dr. Mitchell. One of plaintiff's attorneys, Ralph Boroff, recited the terms, which consisted of a $5,000 payment from Dr. Mitchell, mutual releases, and a confidentiality agreement. The superior court questioned plaintiff to ascertain that he understood and approved the terms, and he said that he did. Mr. Boroff added, in order "to be clear," that the release and confidentiality agreement, by which he meant "nondisparage," would apply "to all parties and Counsel." The court then ruled that the parties had entered into a binding settlement agreement enforceable under Code of Civil Procedure section 664.6.
Plaintiff's other attorney, his brother John Shepardson (who represents plaintiff on appeal), then asked, "What does nondisparagement mean?" A brief discussion among counsel followed, and the court suggested they confer outside.
When counsel returned, John Shepardson stated that he was willing to agree to confidentiality as to the settlement amount, but he would not agree "to muzzle my opinions in the future about the conduct that my mother had inflicted upon her by Dr. Mitchell. And so if the scope of the nondisparaging clause is simply that I will not make untrue or inaccurate statements, then I'm agreeable to that. But beyond that, hypothetically, if I were to write an article in the newspaper or a book about this event, I would not want to be sued for violation of a vague statement regarding nondisparagement." In the ensuing discussion John Shepardson continued to insist that he not be denied his own "free speech rights." His co-counsel, Mr. Boroff, explained that no one was talking about denying him his free speech rights. "What we're talking about is holding you solely to the standard that any comment that you make publicly about the Defendant not violate the law. And... your obligation under this... settlement agreement is to not say untruthful things about the Defendant." John Shepardson replied, "I have no problem with that."
After further discussion counsel and the court decided to revise the agreement to state that the parties and their attorneys agreed "not to make any defamatory statements." The court then ensured that plaintiff concurred: "Mr. James Shepardson, with this additional term being added to the agreement that you will be bound not only to keep the amount in terms of the settlement confidential, but you will also be required not to make any defamatory statements against Dr. Mitchell. Do you agree in addition to all the other terms to be bound by that?" Plaintiff agreed. The court then asked John Shepardson whether he also agreed to be bound by that condition. He responded that he did.
On September 12, 2008, the parties appeared again on plaintiff's motion to confirm the settlement. The court announced its intention to grant the motion and confirm the settlement using the definition of "defamation" found in the civil jury instructions, CACI No. 1700. John Shepardson insisted that the agreement had been only to prohibit "knowingly false statements." Over that objection, the court ordered the parties to execute the settlement and release, substituting the language of CACI No. 1700, "so that both parties are precluded from making defamatory statements about the other such that they are prohibited from making statements which are knowingly false or where the parties have serious doubts about the truth of the statement."
No written motion is in the record, nor is any reply.
The court asked Dr. Mitchell's attorney to prepare the written order. In early November, however, the court signed one order prepared by John Shepardson, followed shortly thereafter by the order prepared by Dr. Mitchell's attorney. The second order confirmed the agreement with an express modification that defined "defamatory" in accordance with CACI No. 1700.
That order (which miscited the applicable CACI provision) represented that the court had "denied the motion to confirm, and treated the motion instead as a motion to clarify."
Discussion
1. Appealability
On appeal, plaintiff urges reversal on the ground that the court's modification included terms he had not agreed to in the April 11 settlement hearing. We cannot consider his argument, however, without first addressing his attempt to bypass the question of appealability.
Plaintiff's attorney, John Shepardson, appears to recognize that he brought this appeal prematurely. He admits that he filed his brother's notice of appeal four days before the November 14 order, and two days before even the order he himself had prepared. Apparently eager to submit the notice of appeal, Shepardson obtained the court's signature on the first order and then signed the notice of appeal on the same day, November 7, 2008. Although plaintiff incorrectly asserts that "[a] notice of appeal filed before entry of Judgment but after its rendition is valid as a matter of law," we have the authority to construe the appeal as if it had been taken from the judgment of dismissal. (See Cal. Rules of Court, rules 8.100(a)(2), 8.104; cf. Los Altos Golf and Country Club v. County of Santa Clara (2008) 165 Cal.App.4th 198, 202-203.) We elect to do so here.
The record of the proceedings below suggests that John Shepardson was involved in the proceedings as much as a litigant as counsel. He objected to certain terms of the settlement—in particular, the defamation language and the release terms-- on his own behalf more than for any benefit to plaintiff. John Shepardson will hereafter be referred to simply as "Shepardson."
Counsel states that he filed the notice of appeal on November 10 because he was concerned that the 60-day period to appeal from the September 11 ruling was approaching. If that was his motivation, the precaution was clearly unnecessary. Since there was no written order on September 11, there was nothing from which to appeal. It is difficult to see how he could have been misled, because he went to the trouble of obtaining the judge's signature on a written order on November 7, which was filed November 12.
2. Settlement Terms
Plaintiff identifies several terms that he believes should not have been added to the original settlement agreement. In a single heading he asserts, "There is no evidence that appellants agreed to waive their constitutional First Amendment rights to petition and free speech, or the litigation privilege, that the claim against respondent was a 'doubtful claim,' that the release included respondents' [sic] representatives other than counsel, that the confidentiality provision include negotiations prior to April 14 [sic], 2008, and that there was an attorney fees provision to enforce the agreement." (Capital letters and emphasis omitted.)
Just to be clear, the only appellant is James Shepardson, acting for himself and as trustee for the decedent's trust. John Shepardson purports to be representing plaintiff, but from the record it appears that the interests he advances are at least as much his own.
Only the first claim in this list was raised at the September 12 hearing. The rest are accompanied by no explanation or supporting argument. Plaintiff then adds the assertion that "The TC [sic] has forced Appellants waived [sic] their rights under Civil Code § 1542"--presumably because this statute was not mentioned at the April 11 hearing. That claim is disingenuous. The waiver of unknown claims, the exception to the general release covered in Civil Code section 1542, was discussed not only at the September 12 hearing, but at the settlement hearing as well. The following colloquy took place at that time: "THE COURT:... Mr. Shepardson, you understand the terms of the settlement that have just been recited? [¶] [Plaintiff]: Yes, Your Honor. [¶] THE COURT: Okay. And you've had an opportunity to consult with your attorney about the advisability of accepting the settlement as opposed to proceeding with the case to trial? [¶] [Plaintiff]: Yes, Your Honor. [¶] THE COURT: And you, then, agree to be bound by the terms of the settlement which... would involve you signing a settlement and release of all claims in exchange for the payment of $5,000... ? [¶] [Plaintiff]: Yes, Your Honor. [¶] THE COURT: All right. And it would resolve any and all claims which you're now aware of that you could assert, including any claim which may be unknown as a result of the death of your mother as against Dr. Mitchell? Do you understand that? [¶] [Plaintiff]: Yes, Your Honor." (Emphasis added.)
Civil Code section 1542 states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
Clearly the waiver of unknown future claims was recited at the settlement, even though it was not identified by statute. The citation and precise language of Civil Code section 1542 could have been explained by plaintiff's counsel, but whether it was or not, the court's admonition was sufficient to explain the nature of the waiver.
At the subsequent hearing on September 12, Dr. Mitchell's attorney pointed out that plaintiff had never objected to the waiver of Civil Code section 1542 in the post-settlement negotiations or moving papers. To complain now, counsel argued, was inappropriate. The court asked Shepardson what prejudice would result if language waiving the benefits of Civil Code section 1542 were included. Shepardson was able to identify only an action that the Medical Board had thus far not pursued, but that it conceivably might "reinstitute." The court assured Shepardson that he would still be authorized to disclose any information contained in the release agreement if requested by the Medical Board; and the release would not preclude the Medical Board's pursuit of the original complaint against Dr. Mitchell. It is clear from the scant record provided by plaintiff that he was not "forced" to accept new terms and furthermore, that no prejudice resulted from the explicit mention of the statute containing the language plaintiff was waiving.
Without the record of the parties' briefing on the motion to confirm the settlement, we have no way of knowing what written objections were made to the form of the final settlement agreement.
As to the definition of defamation, the discussion at the April 11 hearing culminated in a decision by counsel and the court that the settlement agreement would include a clause providing that neither party would make "any defamatory statements" rather than a vague clause precluding disparagement. In explaining the decision to Dr. Mitchell, the court stated that "there is a difference between a defamation, which is knowingly making a false statement as opposed to a disparaging statement, which is merely to make a belittling statement or to render an opinion that... does not constitute defamation. It's something of a different concept."
The final written agreement approved by the court in the November 14, 2008 order contained the following paragraph: "6. The parties to this Agreement, and their respective attorneys of record, hereby further agree that they will make no defamatory comments about any other party to this Agreement in any public or private forum. For purposes of the interpretation of this paragraph, the term 'defamatory' shall be defined, interpreted and construed according to CACI [No.] 1700."
On appeal, plaintiff argues, "The RT for the in-court settlement... shows that the agreed upon definition of Defamation was 'knowingly making a false statement'. There is no evidence that defamation was as defined in CACI 17200." Erroneous CACI citation aside, his assertion is completely without merit. The only specific complaint he advances is that he is not permitted to make defamatory comments "in any public or private forum." Plaintiff queries, "Isn't this a waiver of the Constitutional rights to Petition and Free Speech? Doesn't this implicitly waive Appellants [sic] rights under C[ode of] C[iv.] P[roc.] 425.16, which protects a person's right to engage in Petitioning and Free Speech?"
How this case was suddenly converted to a Strategic Lawsuit Against Public Participation (SLAPP) is inexplicable. (See Code Civ. Proc., § 425.16.) The mention of a public or private forum adds nothing significant to the admonition not to make any false statement; it merely states that a defamatory statement may not be made anywhere. The April 11 settlement had not confined the prohibition on defamatory communications to one forum or another. Plaintiff offers no showing of harm from this minor amplification.
The simple answer to plaintiff's rhetorical question is no, paragraph 6 does not amount to a waiver of his free speech and petition rights. The First Amendment does not insulate defamatory conduct. (Beauharnais v. People of State of Ill. (1952) 343 U.S. 250, 266 [72 S.Ct. 725].) Libel and slander are among those "well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem.... It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." (Chaplinsky v. State of New Hampshire (1942) 315 U.S. 568, 571-572.)
Shepardson should not have been surprised that the court adopted CACI No. 1700 as a benchmark for defining defamation. To the extent that plaintiff himself did not understand the meaning of the term, it was incumbent on his counsel to explain what "defamatory" means under the law. The CACI definition is useful for that purpose; it explains defamation in lay terms and does so correctly. Moreover, because it requires a jury to find proof beyond the mere uttering of a false statement, CACI No. 1700 offers a defendant (i.e., Shepardson or plaintiff, in the hypothetical lawsuit Shepardson apparently anticipates) more protection than the brief explanation given to Dr. Mitchell at the April 11 hearing. The instruction clearly sets forth the elements of the tort of defamation, the type of damages that may result, and the showing required for a plaintiff to recover compensation. There is nothing new about these principles or their relation to the First Amendment. (See Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 11-23 [110 S.Ct. 2695] [reviewing evolution of judicial recognition of defamation actions "since the latter half of the 16th Century"].)
In summary, there has been no showing whatsoever that the trial court exceeded its authority in clarifying the settlement terms in the parties' agreement. Dr. Mitchell wisely saved his money rather than go to the effort and expense of submitting a response to a clearly meritless appeal.
Disposition
The order is affirmed.
WE CONCUR: RUSHING, P. J., DUFFY, J.