Opinion
No. 52973-1-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-19525-5. Judgment or order under review. Date filed: 08/26/2003. Judge signing: Hon. Nicole K MacInnes.
Counsel for Appellant(s), Abraham Albert Arditi, Attorney at Law, 1001 Fourth Ave Plaza Ste 4050, Seattle, WA 98154-1000.
Counsel for Respondent(s), Mary Colleen Kinerk, Cable Langenbach Kinerk Bauer LLP, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.
Kimberly M Meyers, Lane Powell Spears Lubersky, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338.
D. Michael Reilly, Lane Powell Spears Lubersky LLP, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338.
Judith A. Endejan, Graham Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.
The Stranger, a weekly newspaper, published an article about Stacy Pinney's lawsuit against Nordstrom, Inc. and Peter Nordstrom for sexual harassment. The article featured several statements made by a representative of Nordstrom, Inc. Claiming that statements in the article were defamatory and portrayed her in a false light, Pinney sued The Stranger and Nordstrom, Inc. The trial court struck two declarations offered into evidence by Pinney and granted the defendants' motion for summary judgment. Because the statements in the article were nonactionable opinion, we affirm.
I.
On October 17, 2002, The Stranger, a weekly newspaper, published an article entitled 'Uncomfortable Suit: Nordstrom Challenges Sexual Harassment Allegations.' The article was advertised on the front cover of the issue as 'NEWS: Nordstrom's Sexual Harassment Suit P. 11.' The article began, 'For more than a year, Nordstrom has been quietly trying to squelch a lawsuit brought by a former Nordstrom shoe saleswoman who had a seven-year romantic relationship with company division president Peter E. Nordstrom,' and featured quotes from Brooke White, the director of public relations for Nordstrom, Inc.
After the article appeared in the newspaper, Stacy Pinney, the plaintiff of the sexual harassment lawsuit that was the subject of the article, amended her complaint. She claimed that Nordstrom, Inc. made statements that were defamatory and portrayed Pinney in a false light. She further claimed that Index Newspapers, LLC, doing business as The Stranger, also defamed and portrayed her in a false light by publishing those statements. In early December 2002, the trial court granted defendant Nordstrom, Inc.'s and defendant Peter Nordstrom's motion for summary judgment dismissing Pinney's claims for sexual harassment.
II.
We review de novo the granting of a motion for summary judgment, taking the evidence and reasonable inferences in the light most favorable to the nonmoving party.
Herron v. KING Broad. Co., 112 Wn.2d 762, 767-68, 776 P.2d 98 (1989).
We also review de novo 'all trial court rulings made in conjunction with a summary judgment motion.' This standard of review is consistent with the requirement that the appellate court view all evidence and inferences in favor of the nonmoving party and conduct the same inquiry as the trial court. When ruling on a motion for summary judgment, a court cannot consider inadmissible evidence.
Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998); but see, e.g., Int'l Ultimate, Inc. v. St. Paul Fire Marine Ins. Co., Wn. App., 87 P.3d 774, 780 (2004) (court applied the abuse of discretion standard in reviewing trial courts evidentiary rulings related to a grant of summary judgment).
Folsom, 135 Wn.2d at 663.
CR 56(e); Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986).
Pinney argues that the court erred by dismissing her defamation claim. Although Pinney states in the fact section of her opening brief that eight statements in the article are defamatory, she only argues the defamatory nature of three statements. Because the other five statements are insufficiently argued, we do not address them.
State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990).
First, she claims that when the article stated that '[t]he company says the case is an attempt at extortion,' she was falsely accused of a crime. Second, she claims that the article suggested she lied in a judicial proceeding when it stated that 'the company calls her story 'revisionist history.'' Finally, she claims that the article called her a gold-digger by implying that she was motivated by financial gain when it stated, "We think [Peter Nordstrom] is being preyed upon because of his name and his financial position."
To establish a prima facie case for defamation, a plaintiff must prove "falsity, an unprivileged communication, fault and damages." But before the plaintiff proves truth or falsity, she must 'prove that the words constituted a statement of fact, not an opinion. "[E]xpressions of opinion are protected under the First Amendment,' [and] 'are not actionable."
Robel v. Roundup Corp., 148 Wn.2d 35, 55, 59 P.3d 611 (2002) (quoting Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981).
Robel, 148 Wn.2d at 55.
Robel, 148 Wn.2d at 55 (quoting Camer v. Seattle Post-Intelligencer, 45 Wn. App. 29, 39, 723 P.2d 1195 (1986)).
Pinney points out that our Supreme Court has not concluded whether the characterization of a statement as fact or opinion is a question of law or fact 'when a statement is ambiguous, and can be characterized as either fact or opinion.' But when there is no ambiguity, the court may determine as a matter of law whether the statement is fact or opinion. 'To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.' The article appears in a newspaper and is characterized by the paper as news, not opinion. The news editor of the Stranger, who served as the editor for the article about Pinney's law suit, characterized the audience of the paper as 'general readers in Seattle.' We agree with the trial court that the context of this article is of paramount importance to our analysis. The allegedly defamatory statements are statements made by defendants in the early stages of a law suit. In Information Control Corp. v. Genesis One Computer Corp., the Ninth Circuit commented that a 'factor to consider in determining the nature of a publication is that even apparent statements of fact may assume the character of statements of opinion . . . 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. . . .'' The court further noted that one such circumstance is when 'the audience consisted of persons who would be expected to be aware of the litigation between the parties, particularly since the allegedly defamatory statement was published as part of an article dealing with the litigation.'
Dunlap, 105 Wn.2d at 540-41 n. 2.
Dunlap, 105 Wn.2d at 540-41 n. 2.
Dunlap, 105 Wn.2d at 539.
611 F.2d 781 (9th Cir. 1980).
Info. Control Corp., 611 F.2d at 784 (quoting Gregory v. McDonnell Douglas Corp., 552 P.2d 425, 428 (1976)).
Info. Control Corp., 611 F.2d at 784 n. 1.
Because the context of this article is a lawsuit and the statements come from an entrenched defendant, no reasonable reader would have interpreted the statements as fact. Instead, a reasonable reader would view these statements about extortion, revisionist history, and financial position in context, and with the grain of salt appropriate to consideration of a litigant's hyperbolic assertions. Pinney argues that Washington courts have declined to give a free pass to statements about lawsuits, but she relies on authority addressing the application of privilege and not the issue of whether a statement is fact or opinion.
See Mark, 96 Wn.2d 473, 489, 635 P.2d 1081 (1981) (questioning whether privilege applied because 'the media reported at least two statements which do not appear in the court documents.'); Demopolis v. Peoples Nat'l Bank of Washington, 59 Wn. App. 105, 113, 796 P.2d 426 (1990) (commenting that 'in the particular circumstances of this case there are no safeguards to protect against an abuse of the absolute privilege' given statements from judicial proceedings).
Pinney also argues that when the article stated that '[t]he company says the case is an attempt at extortion,' she was falsely accused of a crime. She argues that our Supreme Court has held that where an article could be read as imputing a crime, it is improper to withdraw the issue of defamation from the trier of fact. But Pinney relies on authority from Iowa, Illinois, and California that is not helpful.
Amsbury v. Cowles Pub. Co., 76 Wn.2d 733, 739, 458 P.2d 882 (1969).
In Rees v. O'Malley, the Supreme Court of Iowa concluded that the defendant's statements 'unambiguously accused [plaintiff] of [the crime of] extortion.' But that case did not involve a judicial proceeding or other heated dispute where the audience would have expected fiery rhetoric or hyperbole. The Appellate Court of Illinois' ruling in Stavros v. Marrese is also distinguishable because the statements in that case explicitly accused plaintiff of the crime of extortion. Finally, in Edwards v. Hall, the California Court of Appeal held that by calling Edwards an extortionist, Hall was not merely using hyperbolic language because he detailed 'the exact nature of his accusation.' The California court commented that '[t]aken in the context of Hall's surrounding statements, rather than negating the impression that Hall seriously maintained Edwards was an extortionist, such a view was reinforced.'
461 N.W.2d 833 (1990).
Rees, 461 N.W.2d at 836.
Rees, 461 N.W.2d at 834 (statements made during a city council meeting regarding a sale of property to the plaintiff in which the defendant had been interested).
753 N.E.2d 1013 (2001).
Stavros, 753 N.E.2d at 1015-16.
285 Cal. Rptr. 810 (Cal.App. 1991).
Edwards, 285 Cal. Rptr at 820.
Edwards, 285 Cal. Rptr at 820.
The Stranger's article made clear that all three statements challenged by Pinney are from a company representative. The headline 'Uncomfortable Suit: Nordstrom Challenges Sexual Harassment Allegations' indicated both an active lawsuit as well as Nordstrom's combative position. The article began by stating that Nordstrom has been trying to squelch Pinney's lawsuit. No reasonable reader could then believe that the statements made in the article would not be rhetoric or hyperbole, and thus opinion. Because there is no ambiguity here, the trial court was correct to conclude as a matter of law that the statements were nonactionable opinion. But Pinney argues further that even if the statements were not of false fact, they at least implied false facts. Pinney cites 1) a reference to 'sealed court filings,' 2) Nordstrom, Inc.'s representative's statement that '[t]here are times when you have to stand up and defend yourself,' 3) the fact that the article did not reveal what threat Pinney must have made to commit extortion, and 4) the implication by analogy that undisclosed facts support the idea that Pinney is shaking down Nordstrom. Again, statements by the Nordstrom representative and attributed to the company were made within the context of a lawsuit and were fiery rhetoric. Moreover, the statement in the article that Nordstrom revealed sealed documents did not imply undisclosed facts but was used to demonstrate the conviction of Nordstrom's opinions. Statements of opinion resulting from strong conviction are not actionable.
The statement that 'you have to stand up and defend yourself' was not based on undisclosed defamatory facts. Instead, this statement was more of the same, mere opinion.
Dunlap, 105 Wn.2d at 538.
The article did not imply that the threat was not revealed. Indeed, the article clearly conveyed the sentiment held by Nordstrom that the lawsuit itself was an attempt at extortion a hyperbolic statement.
Finally, it is too great a leap in logic to infer that the statements about another woman suing Nordstrom implied undisclosed facts about Pinney. More sensibly, these statements should be interpreted as mere opinion by Nordstrom's representative delivering more fiery rhetoric.
The statements in the article are opinion and not statements of fact, and are therefore not defamatory.
Next, Pinney argues that the trial court erred by dismissing her false light claim. To prove a false light claim, Pinney must show that by making the statements and then republishing those statements, Nordstrom, Inc. and The Stranger placed her in a false light that was (a) highly offensive to the reasonable person and (b) they knew of or recklessly disregarded the falsity of the publication and the false light in which she was placed. Pinney's claim fails for the same reason that her defamation claim fails. The statements in the article were opinions, not statements of fact, and thus could not be false.
Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 470-71, 722 P.2d 1295 (1986).
Vern Sims Ford, Inc. v. Hagel, 42 Wn. App. 675, 683, 713 P.2d 736 (1986).
Finally, Pinney argues that the court erred by striking Morton's declaration in its entirety and portions of Limburg's declaration. Because we affirm the trial court's conclusion that, as a matter of law, the statements were fact and not opinion, the declarations are not relevant to our analysis, and we need not address them.
AFFIRMED.
KENNEDY, J. and AGID, J., concur.