Opinion
B159437.
10-29-2003
JOHNNIE L. COCHRAN, Plaintiff and Respondent, v. ULYSSES TORY et al., Defendants and Appellants.
Davis Wright Tremaine, Gary L. Bostwick, Alonzo Wickers IV; Loeb & Loeb, Douglas E. Mirell and Jean-Paul Jassy for Defendants and Appellants. Nemecek & Cole, Jonathan B. Cole and Karen K. Coffin for Plaintiff and Respondent.
A lawyer sued a former client for defamation and invasion of privacy. The lawyer prevailed, and the trial court (based on a finding that damages were inadequate under the circumstances) issued a permanent injunction. We reject the former clients challenges to the injunction and affirm.
FACTS
A.
In 1983, Ulysses Tory and Javier Gutierrez (who had been involved in a "shoot out" with the Los Angeles Police Department) retained Johnnie L. Cochran, Jr. to represent them in a personal injury action against the City of Los Angeles and others. Cochran filed the action and settled Gutierrezs claim, but not Torys, and Tory became unhappy with the manner in which Cochran was representing him.
In July 1985, Tory wrote to Cochran, complaining that Cochran was conspiring with the City "to cover up criminal and immoral activities to private citizens for political gains . . . ." Tory said he would "settle" his conspiracy claims against Cochran and "refrain from any public discussions of conspiracy or scandal" if Cochran quickly paid him $10 million "or very close to it." Cochran, in turn, filed a motion to withdraw as Torys lawyer, and the motion was granted in November. No fees were due (it was a contingency case) and none were paid.
B.
In July 1995 (after ten years of silence and at which time Cochran was receiving a great deal of publicity as one of the defense lawyers in O.J. Simpsons criminal trial), Tory again wrote to Cochran, demanded that Cochran return money that Tory had paid to Earl E. Evans, a lawyer who Tory said had "allegedly represented [Tory and his putative spouse, Ruth Craft] in matters of Divorce, Child Custody, Order to Show Cause and Union Bank!!!" Cochran did not respond.
Although Torys letter referred to Evans as one of Cochrans "associates," there was no such relationship. During the 1980s, Evans was Cochrans tenant and paid for the space by providing limited legal services for Cochran. One such task was the "intake interview" when Tory first consulted Cochran in 1985, but Evans did not perform any other services for Cochran with regard to Torys personal injury case (and that was the only case in which Cochran ever represented Tory). Evans, meanwhile had been directly retained by Tory and Craft to handle some family law matters.
C.
In the late 1990s, Tory and a troop of people began picketing outside Cochrans office and outside the Los Angeles Superior Court, carrying placards with these statements:
"Johnnie is a crook, a liar and a Thief. Can a lawyer go to HEAVEN? Luke 11:46"
"Hey Johnnie, How Much Did They Pay $$ You to F____ Me?"
"Youve been a BAD BAD boy, Johnnie L. Cochran"
"Att[orne]y COCHRAN, We have no Use for Illegal Abuse"
"I Know How it Feels to be Terrorized. God Bless USA"
"Absolute Discrimination"
"Attorney Cochran, Dont We Deserve at Least the same Justice As O.J.?"
"Unless You have O.J.s Millions — Youll be Screwed if You USE J.L. Cochran, Esq."
"Johnnie L. Cochran, Esq., Your Piss is Not Rain"
"Attn: Attorney Johnnie L. Cochran, Jr., Flaunting and Flossing, Its the People Hes Costing"
"Attorney Johnnie, Its Past Time!!!"
"Johnnie Cochran I Know WHAT You, the County and city DID to my CASE"
"DONT LAUGH, COCHRAN SCREWED YOU GUYS TOO!"
What can I do if I dont receive the Justice the Constitution guarantees ME?
Of all the picketers, only Tory and possibly one other person had been Cochrans clients. Tory transported the picketers to Cochrans office and to the courthouse, bought lunch for all of them, and admitted the "possibility" that some of the picketers joined him only because they wanted a free lunch. In October 2000, while the picketing continued, Tory wrote to Cochran, demanded the return of $6,500 allegedly paid to Evans, and also demanded another $15,000 from Cochran to "compensate" him for his "time and efforts to bring this entire matter to closure. . . ."
D.
Cochran filed this lawsuit against Tory in October 2000, alleging causes of action for defamation and invasion of privacy. Tory answered, and represented himself throughout the trial court proceedings. A preliminary injunction was issued, discovery was conducted, and the case was tried to the court in March 2002. In its statement of decision, the trial court found that Cochran was entitled to a permanent injunction against Tory because Torys statements were false and were made with knowledge of their falsity, "maliciously and with reckless disregard for the truth [and] for the purpose of inducing Cochran to pay Tory various amounts of money to which Tory was not entitled." The court enjoined Tory as follows:
The trial court found that, after "the commencement of this litigation, [Torys conduct] worsened as the band of picketers supplemented the placards with additional banners and loud chanting of obscene statements."
"[I]t is ordered that Tory, and his employees, agents, representatives, and all persons acting in concert, cooperation or participation with him, including, but not limited to, Ruth Craft and any other co-conspirator, are permanently enjoined from engaging in any of the following:
"1. Standing, assembling or approaching within [300 yards] of (i) Cochran; or (ii) Cochrans place of business . . .;
"2. In any public forum, including, but not limited to, the Los Angeles Superior Court and any other place at which Cochran appears for the purpose of practicing law: (i) picketing Cochran [or] Cochrans law firm; (ii) displaying signs, placards or other written or printed material about Cochran [or] Cochrans law firm; (iii) orally uttering statements about Cochran [or] Cochrans law firm; and
"3. Contacting, harassing, threatening, stalking, disturbing the peace of, keeping under surveillance or blocking the movements of Cochran."
Tory (now represented by counsel and purportedly joined by Ruth Craft, who is restrained by the injunction in her capacity as Torys agent) appeals.
DISCUSSION
I.
Tory contends "the second numbered paragraph" of the permanent injunction is a "particularly egregious" prior restraint and, as such, unconstitutional under both the federal and state constitutions. We disagree.
Although a prior restraint can be presumptively unconstitutional, that rule has no application where, as here, an injunction against a private person operates "to redress alleged private wrongs," not to suppress a legitimate publication. (Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 418-419.) The injunction in this case was issued based on the trial courts findings — after a full trial on the merits — that Torys statements were both libelous and slanderous within the meaning of Civil Code sections 45 and 46, and that pecuniary compensation would not afford an adequate remedy. As a result, the second numbered paragraph "was issued only after the [trial court] determined that [Tory] had engaged in [unlawful activity], and the order simply preclude[s Tory] from continuing [his] unlawful activity." (Cf. Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 138.)
As our Supreme Court explained in Aguilar, the special vice of a prior restraint is that it suppresses communication before there has been an adequate determination that the speech is unprotected under the First Amendment. Once there has been a final adjudication on the merits that the speech is unprotected, an injunction restraining that speech does not constitute an impermissible prior restraint. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at p. 141.) In Aguilar, the Court held that "the pervasive use of racial epithets that has been judicially determined to violate the FEHA is not protected by the First Amendment, and such unlawful conduct properly may be enjoined." (Id. at pp. 141-142.) By parity of reason, the same is true here, where the pervasive use of libelous and slanderous statements have been judicially determined to violate Civil Code sections 45 and 46.
The same is true under the California Constitution. (Aguilar v. Avis Rent A Car System, Inc., supra, 21 Cal.4th at pp. 142-145.)
II.
Alternatively, Tory contends the second numbered paragraph is "unconstitutionally overbroad." This is so, he claims, because it means he cannot "[p]raise [Cochran] as the finest lawyer of Los Angeles," "[i]nform people that [Cochran] represented O.J. Simpson," "[w]rite a `letter to the editor criticizing the courts ruling below," "[r]epublish or read aloud the Court of Appeals decision in Cochran v. Cochran [(1998)] 65 Cal.App.4th 488 . . ., where parties alleged that Cochran made a death threat against them," "[a]ppear in court to challenge the [i]njunction," or "[t]ell friends, at a picnic in a public park: `Johnnie Cochran was not very nice to me." We disagree.
The cases cited by Tory all construe language in preliminary injunctions (Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528) or statutes, ordinances, and the like (NAACP v. Alabama (1964) 377 U.S. 288; In re Berry (1968) 68 Cal.2d 137; Ketchens v. Reiner (1987) 194 Cal.App.3d 470; Gooding v. Wilson (1972) 405 U.S. 518; Houston v. Hill (1987) 482 U.S. 451; Schad v. Mount Ephraim (1981) 452 U.S. 61; Airport Commrs v. Jews for Jesus, Inc. (1987) 482 U.S. 569; Welton v. City of Los Angeles (1976) 18 Cal.3d 497), not permanent injunctions issued after a full trial on the merits and findings that the speech at issue is not protected. For the reasons explained in Part I, ante, Torys cases have nothing to do with the permanent injunction issued in this case.
Based upon his prior unlawful conduct and his admissions in court that, absent restraint by the court, he would continue to picket Cochran, Tory has no basis for his challenge to the breadth of the injunction.
When asked whether he intended to keep picketing Cochran until Cochran paid him, Tory said, "Its a possibility." The court followed-up by asking Tory, "Do you desire to do more picketing of Mr. Cochran or with respect to your grievance against Mr. Cochran at any time at any place? . . . I just mean as things are today, no changes of position on anybodys part except, are you going to want to do more picketing . . . of Mr. Cochran with respect to these grievances at any place, at any time?" Tory answered, "Im quite sure, Your Honor, I will protest against Mr. Cochran. . . . Yes. . . . Unless you order us not to."
III.
Tory contends the judgment is not supported by substantial evidence because (according to Tory) the evidence establishes only that he stated his opinion, not that he made "provably false" statements of fact. We disagree.
Substantial evidence shows that Tory "crossed the line separating protected rhetorical hyperbole from unprotected fraudulent misrepresentations of fact." (San Antonio Hosp. v. So. Cal. Council of Carpenters (9th Cir. 1997) 125 F.3d 1230, 1237.) Torys statements — such as, "Hey, Johnnie, how much did they pay $$ you to f____ me?" and "Johnnie Cochran, I know what you, the County and City did to my case," and "Johnnie is a crook, a liar and a thief," accuse Cochran of theft and of accepting money as a bribe to abandon Torys case against the City and the County and, as such, constitute libel within the meaning of Civil Code section 45 — because a false statement reasonably calculated to induce the reader to understand that a person is guilty of a crime or is dishonest in his profession is sufficient to establish libel. (Gallagher v. Chavalas (1941) 48 Cal.App.2d 52, 59; Goehring v. Wright (N.D. Cal. 1994) 858 F.Supp. 989, 1004; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 471, p. 558; §§ 482-484, pp. 566-572.) No more was required. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873.)
We summarily reject Torys suggestion that the "context" of his statements shows they were mere opinion. In context, Tory was demanding money that wasnt owed to him, which to us supports the trial courts finding that Tory intended to go to any length to slander Cochran, and that he knowingly made false statements of fact.
IV.
In a related argument, Tory contends the evidence is insufficient to establish that he acted with actual malice. Again, we disagree.
Assuming without deciding that Tory is entitled to the same protections afforded to a legitimate newspaper defending a libel action, and assuming that Cochran is (as he willingly concedes) a public figure, and thus assuming that this is a case in which we must review the evidence de novo to determine whether it supports the trial courts finding of actual malice (Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 514; McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 842), we are satisfied that Tory acted with actual malice. Uncontroverted evidence establishes that Cochran did not owe any money to Tory, that Tory knew his statements were all false, and that he nevertheless set out to harass Cochran by hiring picketers to carry outrageous placards and repeatedly march in front of Cochrans office building and in front of the Los Angeles Superior Court. Under any standard, this is more than enough to show actual malice.
DISPOSITION
The permanent injunction is affirmed. Cochran is entitled to his costs of appeal.
We concur: ORTEGA, Acting P.J. and MALLANO, J.