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Haggerty v. Bethel Christian School

Court of Appeals of California, Second Appellate District, Division Eight.
Nov 26, 2003
No. B160278 (Cal. Ct. App. Nov. 26, 2003)

Opinion

B160278.

11-26-2003

JOHN HAGGERTY, Plaintiff and Appellant, v. BETHEL CHRISTIAN SCHOOL AND BETHEL BAPTIST CHURCH OF LANCASTER, et al., Defendants and Respondents.

Law Offices of Brian E. Reed and Brian E. Reed for Plaintiff and Appellant. R. Rex Parris Law Firm and R. Rex Parris and James S. Kostas for Defendants and Respondents.


Plaintiff John Haggerty appeals from the order dismissing as SLAPP actions (Code Civ. Proc., § 425.16) two of his causes of action against his former employer, a privately operated religious school. For the reasons set forth below, we affirm the order.

FACTS AND PROCEDURAL HISTORY

John Haggerty was the athletic director and girls high school volleyball coach at Lancasters Bethel Christian School (Bethel). In November 2000, two of Haggertys top volleyball players did not take part in a playoff game after he warned that anyone who missed a pre-game practice session would not play. This incident generated a November 8, 2000, article in the local Antelope Valley Press under the headline "Controversy at Bethel." The article mentioned that Haggerty had been fired, then rehired, and quoted Haggerty as saying: " `After our last (regular season) game on Friday, I had the usual team meeting and told the girls they had to be at Saturdays practice . . . . I told them if they werent there, they might as well turn in their equipment because they werent playing in the playoffs. " James Aceves, the father of one of the two girls who did not play, was chairman of Bethels school board. The November 8 article quoted him as saying, "(Haggerty) terminated the students from the team for missing practice . . . . My daughter had SATs that day and the other girl had a prior commitment. We chose not to participate, it was a personal choice. She could have, but she chose not to." Shortly after, Haggerty was fired.

Haggerty sued Aceves for libel and intentional infliction of emotional distress (IIED) based on Acevess statement in the November 8 news story that Haggerty terminated the students from the team for missing practice. He also sued Aceves for intentional interference with prospective economic advantage, alleging that Aceves instigated the decision to fire him. Aceves brought a motion to dismiss those three causes of action under Code of Civil Procedure section 425.16 (section 425.16).

These three causes of action were part of a larger complaint by Haggerty and his wife, Tracy Haggerty, against Bethel and others, including claims that Tracy Haggerty was wrongfully terminated from her job at the school. Those other causes of action are not at issue here.

We discuss section 425.16 in detail post. In general, the statute provides that a defendant sued for having exercised certain First Amendment rights may have the complaint dismissed if the plaintiff cannot make a prima facie showing the action has merit.

Acevess motion included copies of the November 8 news story, along with another article from November 16 which quoted him and Haggerty about the dispute. The only opposition evidence introduced by Haggerty came from his declaration and that of his lawyer. Relevant here are the following paragraphs: (8) where Haggerty said he "responded to questions asked of me by a reporter and I got fired. I made no attempt to go out of my way to call a reporter, he simply asked me questions and I answered the questions."; (9) where Haggerty said that Aceves called him on a Friday night and said he would " `have my job by Monday which meant to me that he would do whatever he could to see that I lost my job."; (10) where Haggerty said Acevess statement that Haggerty terminated the two players for missing practice was false because no such thing occurred; (11) where Haggerty gave a different version of his statement to his players, essentially arranging for the two girls to fulfill their other obligations and still attend part of the upcoming practice session; and (12) where Haggerty said that Acevess daughter was told twice to take her SAT and, if possible, come to practice afterward.

Acevess evidentiary oppositions to portions of both declarations were sustained by the trial court. Haggerty does not challenge those rulings on appeal, leaving us to consider a heavily redacted version of the declarations.

The trial court denied the motion as to Haggertys interference with economic advantage claim. The court granted the motion as to the libel and emotional distress claims, finding that Acevess statement, when viewed in the context of the entire news story, was non-defamatory opinion and did not constitute outrageous conduct. Haggerty alone appealed from that order.

DISCUSSION

1. SLAPP Suits and Section 425.16

The term "SLAPP" stands for Strategic Litigation Against Public Participation. SLAPP suits are actions designed to prevent citizens from exercising their political rights or punishing those who have done so. A true SLAPP suit is not brought to vindicate a plaintiffs legal rights but instead is designed to interfere with a defendants ability to pursue his interests. It typically lacks merit. The objective is not to win, but to exhaust a defendant by depleting his resources. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 645 (Wollersheim), disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.)

The Legislature enacted section 425.16 to combat SLAPP suits and protect citizens in the exercise of their First Amendment rights of free speech and petition. The statute, which provides a procedural remedy, provides in relevant part as follows:

"(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

"(b)(1) A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

"(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

". . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

"(e) As used in this section, `act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."

The defendant, as moving party, bears the initial burden of showing that the action falls within the ambit of section 425.16 as one arising from an act of defendant in furtherance of his free speech or petition rights. Once the defendant does so, the burden shifts to the plaintiff to show a probability of prevailing on the merits. The plaintiff does so by showing that his pleadings are legally sufficient and by producing evidence establishing a prima facie case against the defendant. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 236 (Schoendorf).) The plaintiff must therefore show that the complaint is legally sufficient and supported by a prima facie showing which, if believed, would sustain a judgment in his favor. (Navellier, supra, at pp. 88-89.) The test is similar to that used when ruling on summary judgment motions. The trial court must consider the pleadings and the evidence submitted by the parties without weighing the evidence. Only admissible evidence will be considered and statements based on information and belief are insufficient. A party may not rely on the allegations of its pleadings, but the pleadings frame the issues to be decided. (Schoendorf, supra, at p. 236.)

2. Acevess Statements Concerned a Matter of Public Interest

The definition of "public interest" within the meaning of section 425.16 has been broadly construed to include not just governmental affairs, but also private conduct that affects a broad segment of society or that affects a community in a manner similar to the acts of a government entity. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [published attacks on manager of private homeowners association concerned matters of public interest within that community; managers function and actions were similar to those of governmental entities].) Matters of public interest may well involve private persons and entities, "especially when a large, powerful organization may impact the lives of many individuals." (Wollersheim, supra, 42 Cal.App.4th at pp. 650-651 [activities of private church satisfied SLAPPs public interest requirement because of extensive media coverage of its activities, the extent of its membership, and its assets].)

The trial court ruled that the issue of high school sports at both public and private schools in local communities was a matter of public interest. Relying on Wollersheim, supra, 42 Cal.App.4th at pages 650-651, Haggerty contends that coaching decisions at a small private school are simply not matters of public interest because they do not involve a "large, powerful organization" that "may impact the lives of many individuals." We believe the trial court was correct. High school sports is very much a matter of public interest, especially in smaller communities, where fan interest is likely to be high. The November 8 news story in the local paper described the "Division V-A playoff game" as "the schools biggest girls volleyball match in nearly a decade." A November 16, 2000, article that was also submitted in evidence referred to the match as Bethels "first postseason appearance in eight years . . . ." The absence of two of the teams top players and the reasons why they did not play were therefore matters of public interest under section 425.16. Accordingly, the burden shifted to Haggerty to prove the probability that he would prevail on the libel and IIED claims.

3. Probability of Success on the Merits

A. The Libel Claim

"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." (Civ. Code, § 45.) Since there is no such thing as a false idea, however, a publication must contain a false statement of fact, not opinion, before it may be deemed libelous. (Campanelli v. Regents of University of California (1996) 44 Cal.App.4th 572, 578 (Campanelli).)

The trial court ruled that Acevess statement — when viewed in the context of a heated dispute about high school coaching methods — was nothing more than non-actionable opinion about Haggertys actions. Haggertys brief inadequately addresses this issue. Scattered throughout different sections of his brief are references to generically applicable propositions of law concerning the tests for determining whether a statement is libelous. Apart from his naked assertion that Acevess statements were false, however, Haggerty does not discuss or analyze why we should hold that those statements were factual and therefore libelous. We therefore deem the issue waived. (Schoendorf, supra, 97 Cal.App.4th at pp. 237-238.) We alternatively hold on the merits that the trial court did not err.

Whether an allegedly defamatory statement is either fact or opinion is usually a question of law for the court which is properly determined by demurrer. If the court concludes the statement could reasonably be construed as either fact or opinion, the issue should be resolved by a jury. (Campanelli, supra, 44 Cal.App.4th at p. 578.) California courts use a totality of the circumstances test to make this determination. The court must assume the role of the average reader and decide the natural and probable effect of the statement. The words themselves must be examined to see if they have a defamatory meaning or if the sense and meaning fairly presumed to have been conveyed to those who read it are defamatory. (Ibid.) Statements cautiously phrased in terms of apparency are more likely to be opinions. The court must go beyond the language itself, however, and look at the nature and full content of the communication and to the knowledge and understanding of the audience to whom the publication was directed. (Ibid.) Therefore, in addition to the language, the context of a statement must be examined. (Ibid.)

A defamatory statement which is couched as an opinion but which may be understood as a factual assertion is actionable. (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 723, fn. 1, 725-726 [statements in a high school student newspaper that the plaintiff, a teacher at the school, was a "babbler" and the "worst" teacher at the school were non-actionable opinions].) "The dispositive question for the court is whether a reasonable fact finder could conclude that the published statements imply a provably false factual assertion. [Citation.]" (Id. at p. 724.)

In order to qualify as an actionable statement, an allegedly libelous communication must contain a statement which is capable of being proven true or false. (Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 445 [journalist sued public utility for libel after defendant accused the journalist of having a conflict of interest].) The accusation was not actionable, the court held, because it involved a non-provable matter of opinion: "The determination of a conflict of interest involves instead an application of an ethical standard to facts, reflecting the exercise of judgment. The judgment may, of course, be reasonable or unreasonable; but whatever quality may be attributed to it, the expressed belief in the existence of a conflict of interest does not imply an objective fact that can be proved to be true or false." (Id. at p. 445.)

Even apparent statements of fact may be deemed opinions "when made in public debate, heated labor dispute, or other circumstances in which an `audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole . . . . " (Information Control Corp. v. Genesis One Computer Corp. (9th Cir. 1980) 611 F.2d 781, 784, citations and fn. omitted.)

We agree with the trial court that Acevess statement amounted to no more than non-defamatory opinion. Haggertys complaint alleged that Acevess remark was libelous because it accused him "of removing students from the team because they missed practice which is an act most people would consider to be unfair, irresponsible, mean and/or generally not acceptable conduct." Although Acevess statement appears factual, when viewed in context with the entire article, the statement takes on a different meaning. The storys lead paragraph paraphrases Haggerty as saying that the two girls "opted not to play in the important contest." Later in the story, Aceves is quoted as saying the girls were "terminated . . . from the team for missing practice." However, the quote continues with Aceves stating, "My daughter had SATs that day and the other girl had a prior commitment. We chose not to participate, it was a personal choice. She could have, but she chose not to." (Italics added.) Elsewhere in the article, Haggerty was quoted as saying that the parents of both girls "chose for their daughters not to play" when Bethel did not immediately fire him. When viewed against this backdrop, the average reader would not naturally and probably view Acevess as a factual assertion that the girls had been kicked off the team. Instead, as Acevess and Haggertys comments both made clear, the girls chose not to play in response to Haggertys warning. Acevess statement would, therefore, most likely be viewed as a hyperbolic characterization that expressed Acevess opinion of Haggertys conduct. As a result, the statement was not defamatory and Haggerty was unlikely to prevail on the merits.

We agree with the trial court that Haggertys declaration, where he contends that other arrangements were made for the girls, does not seem consistent with Haggertys statements to the press, where he was quoted as saying that if the girls did not practice, "they might as well turn in their equipment because they werent playing in the playoffs." We also note that at the end of the article, Haggerty appears to defend his actions by stating, " `Since when has any coach not been allowed to tell his players to come to practice. It came down to being a political thing. " Nowhere does Haggerty contend that the statements attributed to him in the press were false or otherwise attempt to explain or discuss this seeming inconsistency. Instead, Haggerty admits in his declaration that he simply "answered the questions" put to him by the reporter. Given that Haggerty bore the burden of producing evidence on this issue (Navellier, supra, 29 Cal.4th at p. 88), we conclude that he is stuck with his statements to the press, where he essentially admitted that the players were told they would have to turn in their gear and would not take part in the playoff game unless they attended the next practice session. When viewed in this light, Acevess statement that the girls were kicked off the team for missing practice appears to be very nearly true. As the trial court observed, and as we have already concluded, regardless of this seeming ambiguity, Acevess remark amounted to no more than non-actionable opinion.

4. Emotional Distress Claim

The tort of intentional infliction of emotional distress is comprised of three elements, only one of which is at issue here: was the defendants conduct extreme and outrageous. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran ).) In order to meet this requirement, the alleged conduct must be so extreme that it exceeds all bounds of what is usually tolerated in a civilized community. Generally, conduct will be found to be actionable where the " `recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!" [Citations.]" (Id. at p. 494.)

There is no bright line standard for judging outrageous conduct. Instead, the court conducts a case-by-case appraisal of the conduct, filtered through the prism of the appraisers values, sensitivity threshold, and standards of civility. The process is therefore more intuitive than analytical. (Cochran, supra, 65 Cal.App.4th at p. 494.) Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. (Id. at p. 496.)

"Further, the tort does not extend to `mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some ones feelings are hurt. There must still be freedom to express an unflattering opinion, and some safety valve must be left through which irascible tempers may blow off relatively harmless steam. . . . [Citations.]" (Ibid.; italics omitted.)

The trial court found that Acevess statements to the press were not enough to make the average person shriek, "Outrageous!" Haggerty has not adequately addressed this issue either. Most of his appellate discussion is confined to little more than legal platitudes and the naked assertion that the allegations of his complaint and his opposition declaration were enough to defeat the SLAPP motion. He wrongly contends that Aceves failed to introduce evidence on the issue, ignoring both his own duty to do so (Navellier, supra, 29 Cal.4th at p. 88) and the fact that Aceves supplied the complete text of the news article where the disputed comments appeared, something Haggertys complaint failed to do.

The closest Haggerty comes to satisfying his duty to provide adequate discussion and authority is his reliance on McDaniel v. Gile (1991) 230 Cal.App.3d 363, 372 (McDaniel), for the proposition that sufficiently outrageous conduct may arise from one persons abuse of their power or position of authority over another. According to Haggerty, Aceves abused his authority as Bethels school board chairman by telling Haggerty he (Aceves) would "have" Haggertys job, then making false allegations to the press, as part of a plan to fire Haggerty. His reliance on McDaniel is misplaced for two reasons. First, the cross-complainant in McDaniel sued her divorce lawyer for intentional infliction of emotional distress based on allegations that he refused to work on her case unless she had sex with him. The appellate court reversed a summary judgment for the cross-defendant lawyer because there were triable issues of fact to show that this conduct abused the lawyers special relationship with his client. (McDaniel, supra, at pp. 372-373.) Haggerty has not discussed the facts of that case or made any attempt to analyze or discuss why they are applicable here, and we therefore deem the issue waived. (Schoendorf, supra, 97 Cal.App.4th at pp. 237-238.) On its face the conduct alleged in McDaniel is far more egregious than that present here. Second, McDaniel relied on Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, footnote 2 (Newby) as authority for its holding. The Newby court, in turn, relied on the Restatement Second of Torts, section 46, comment e., including language which cautioned that regardless of the defendants authority over the plaintiff, there is still no liability for "mere insults, indignities, or annoyances that are not extreme or outrageous." (Newby, supra, at p. 297, fn. 2.) We conclude that Acevess comments to the press, which we have already held were mere opinion, did not amount to extreme and outrageous conduct even though Aceves might have possessed some authority over Haggerty.

Newby was disapproved on another point in Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 740, fn. 9.)

5. Failure to Admit Making the Disputed Statements

Acevess answer to Haggertys complaint included a general denial of all the allegations. Haggerty contends this included a denial of his allegation that Aceves ever made the disputed comments. Because Aceves denied making those statements, Haggerty reasons that section 425.16 does not apply because Acevess free speech rights were never implicated. The trial court rejected this contention outright, noting that Haggerty offered no supporting authority for his contention. We agree. We believe Acevess general denial is akin to an inconsistent defense, which has long been permitted by our courts. (Banta v. Siller (1898) 121 Cal. 414, 417-418; Butler v. Delafield (1905) 1 Cal.App. 367, 371.) Aceves can deny that he made the statements and still contend that, if he is not believed, his speech rights were implicated.

DISPOSITION

For the reasons set forth above, the order dismissing Haggertys libel and intentional infliction of emotional distress claims pursuant to section 425.16 is affirmed. Respondent Aceves to recover his costs on appeal.

We note that even with a busy calendar the trial judge, John P. Doyle, found time to write a cogent and well reasoned 12-page order, one that greatly assisted our analysis of the issue.

We concur: COOPER, P.J. and BOLAND, J.


Summaries of

Haggerty v. Bethel Christian School

Court of Appeals of California, Second Appellate District, Division Eight.
Nov 26, 2003
No. B160278 (Cal. Ct. App. Nov. 26, 2003)
Case details for

Haggerty v. Bethel Christian School

Case Details

Full title:JOHN HAGGERTY, Plaintiff and Appellant, v. BETHEL CHRISTIAN SCHOOL AND…

Court:Court of Appeals of California, Second Appellate District, Division Eight.

Date published: Nov 26, 2003

Citations

No. B160278 (Cal. Ct. App. Nov. 26, 2003)