Opinion
B229957
11-29-2011
JERRY THOMPSON, Plaintiff and Respondent, v. LEO GRILLO et al., Defendants and Appellants.
Richards, Watson & Gershon, Lisa Bond, Ginetta L. Giovinco; Law Offices of William R. Hess, William Hess for Defendants and Appellants. Michael Joel Kelly for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. MC020020)
APPEAL from a judgment of the Superior Court of Los Angeles County. Victor E. Chavez, Judge. Reversed with directions.
Richards, Watson & Gershon, Lisa Bond, Ginetta L. Giovinco; Law Offices of William R. Hess, William Hess for Defendants and Appellants.
Michael Joel Kelly for Plaintiff and Respondent.
May the trial court award damages for intentional infliction of emotional distress after rejecting defamation claims arising from the same set of facts? The answer is no. If the court finds that defendants' disparaging statements about plaintiff are privileged, that finding subsumes plaintiff's emotional distress claim. We reverse the court's judgment awarding plaintiff $35,000 for emotional distress arising from defendants' cruel and insulting—yet privileged—e-mails about plaintiff's business practices.
FACTS
Respondent Jerry Thompson, who is a stable owner in Soledad Canyon and an experienced horseman, provided trail rides to patrons of the Thousand Trails Mobile Home Park. As part of his operation, Thompson purchases neglected horses, and reconditions them with proper feed, veterinary care, and shoeing. Thompson ran his Thousand Trails horse-riding business from 2006 to 2008.
Appellants Leo Grillo and Nancy Wedlock are active in animal rescue enterprises, including Horse Rescue of America, which rescues and cares for abused, neglected and abandoned horses and burros. On October 13, 2008, appellants sent an e-mail to the management of Thousand Trails, accusing Thompson of abusing and starving his horses. This communication, "released on the Internet for the world to see," threatened to create a scandal that Thousand Trails was harboring or committing animal cruelty, a felony offense.
After appellants' e-mail arrived, the management of Thousand Trails expressed concern to Thompson that negative publicity about its facility would reduce patronage. County animal control officers inspected Thompson's stable five times to see if his animals were abused. Thompson was not cited during any of these visits.
Appellants sent a second e-mail to the management of Thousand Trails on October 15, 2008. They stated that anyone could see that the horses are starving; that only four hay bales were ordered for two dozen horses; and that Thousand Trails should not "believe what the criminal is telling them," referring to Thompson. Appellants threatened to "prove our case in the court of public opinion" by sending out a press release with photos to the media, animal welfare groups and recreational organizations. Afterward, Thompson was physically attacked and his property was invaded by trespassers. In November 2008, Thousand Trails demanded that Thompson obtain more insurance coverage, and he was obliged to suspend his trail ride operation.
Thompson sued appellants for interference with contract and interference with economic advantage, arising from appellants' communications, publications, and statements about him. Thompson also asserted claims for intentional infliction of emotional distress and defamation.
Trial was by the court. After Thompson presented his case, appellants moved for judgment. The court granted judgment for appellants on Thompson's claim for interference with contract, because there was no evidence that Thompson was a party to the concessionaire's agreement. The court granted judgment for appellants on Thompson's claim for interference with prospective economic advantage, because Thompson quit the horse riding business at Thousand Trails when he was unable to get additional insurance. The court granted judgment for appellants on Thompson's defamation claims because appellants' statements about him are privileged. The court denied judgment for appellants on Thompson's claim for intentional infliction of emotional distress.
Appellants submitted a brief arguing that because their e-mails are privileged and do not constitute extreme and outrageous conduct, Thompson cannot recover for emotional distress. The court rejected the argument and awarded Thompson $35,000 on his emotional distress claim. Appellants timely appealed from the judgment. Thompson did not appeal from the trial court's order granting judgment for appellants on his defamation or other causes of action.
DISCUSSION
The issue is whether the trial court erred as a matter of law by awarding damages to Thompson for intentional infliction of emotional distress. Appellants reason that once the trial court granted judgment in their favor on the defamation claims, Thompson was barred from making an emotional distress claim based on the same set of facts. Appellants' reasoning is supported by the case law.
The leading case comes from Division One of this district, Flynn v. Higham (1983) 149 Cal.App.3d 677. Defendant Higham wrote a biography about deceased actor Erroll Flynn, describing him as a homosexual and a Nazi spy. Flynn's children sued for defamation, intentional infliction of emotional distress and invasion of privacy. (Id. at p. 679.) The court ruled that Flynn's heirs cannot sue for libel or invasion of privacy. (Id. at pp. 680, 683.) Turning to the claim for emotional distress, the court wrote that "to allow an independent cause of action for intentional infliction of emotional distress, based on the same acts which would not support a defamation action, would allow plaintiffs to do indirectly that which they could not do directly. It would also render meaningless any defense of truth or privilege." (Id. at p. 682. Accord: Kilgore v. Younger (1982) 30 Cal.3d 770, 777; Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 244-245; Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 34; Wallin v. Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1056-1057.)
If a plaintiff has stated a case for defamation, "personal distress is a matter which may be taken into account in determining the amount of damages to which the plaintiff is entitled, but it does not give rise to an independent cause of action" for intentional infliction of emotional distress. (Grimes v. Carter (1966) 241 Cal.App.2d 694, 702.) The emotional distress claim "stands or falls with the defamation claim." (Basilius v. Honolulu Pub. Co., Ltd. (D.Hi. 1989) 711 F.Supp. 548, 552, citing Flynn v. Higham, supra, 149 Cal.App.3d 677.) This prevents plaintiffs from making an "'end run'" around the constitutional free speech and petitioning considerations underpinning the statutory privilege. (Basilius, at p. 552.)
The Flynn court cited Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573. Lerette was a bank president who sued for defamation and emotional distress. (Id. at p. 575.) The court found that the defendants' letter accusing Lerette of dishonesty was privileged, as a communication preliminary to a proposed judicial proceeding. (Id. at pp. 576-578.) Because the communication was privileged, no cause of action could be pursued for intentional infliction of emotional distress: "To allow appellant to proceed with this cause of action would substantially defeat the purpose of the privilege enunciated in section 47." (Id. at p. 579.)
Thus, where the ultimate facts pleaded in the complaint show emotional distress arising from allegedly defamatory statements—and the statements are privileged—no independent cause of action for intentional infliction of emotional distress can be maintained. In this instance, Thompson's claim for intentional infliction of emotional distress arises from appellants' statements about him. His complaint alleges that appellants made written and oral communications to third parties, calling him a "criminal" and a "heinous man" and falsely accusing him of being an animal abuser, all to convince others that he was unfit to own horses. Thompson suffered from appellants' outrageous and despicable conduct "in making such false communications to third parties about plaintiff . . . ." At trial, Thompson testified that when he read appellants' e-mails, "I was shocked and had my feelings hurt and just couldn't believe what was in it," and described himself as "insulted and dejected."
Thompson's complaint and testimony demonstrate that his emotional distress claim is based on appellants' allegedly defamatory statements. Once the trial court concluded that appellants' statements are privileged, Thompson's claim for intentional infliction of emotional distress could not stand as an independent cause of action. To allow Thompson to recover emotional distress damages for privileged statements would render the privilege meaningless. (Flynn v. Higham, supra, 149 Cal.App.3d at p. 682.)
Thompson points to Lagies v. Copley (1980) 110 Cal.App.3d 958 for the rule that conduct that goes beyond defamatory words gives rise to an independent claim for intentional infliction of emotional distress. Lagies was a newspaper reporter, and defendants were his superiors. To punish Lagies for investigating and writing about a personal friend of defendant Copley, the defendants humiliated Lagies, refused to print his stories, singled him out for denial of merit raises, demoted him, assigned him to increasingly degrading tasks, blackballed him to preclude other employment, published his confidential sources to destroy his credibility, and rendered him a pariah in his place of employment. (Lagies, at pp. 963-964, 974.) This was "more than mere insulting language"; rather, the "abuse of the employer-employee relationship with the intent of damaging Lagies is the ultimate fact pleaded." (Id. at p. 974.)
Lagies was disapproved on other grounds in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 738, footnote 23.
Lagies is inapposite. Appellants had no control over Thompson's employment, and could not demote him. The only power appellants wielded was the power of the pen, or in this case, the power of the Internet for disseminating words and ideas. The essence of Thompson's claim is that appellants harmed him with their words, not by their actions. Because appellants' words were privileged, Thompson could not recover emotional distress damages. The trial court erred as a matter of law by awarding Thompson $35,000 on his claim for intentional infliction of emotional distress.
Thompson argues that appellants' communications were not privileged, or were malicious, so that the trial court erred by granting judgment in favor of appellants on the defamation claims. Thompson did not preserve this argument for our consideration. "[A] respondent who has not appealed from the judgment may not urge error on appeal." (California State Employees' Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372, 382, fn. 7; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439; Townsend v. Townsend (2009) 171 Cal.App.4th 389, 397-398; Oxbow Carbon & Minerals, LLC v. Department of Industrial Relations (2011) 194 Cal.App.4th 538, 552, fn. 11.)
Finally, Thompson contends that only Horse Rescue seeks relief from the judgment. This is incorrect. Horse Rescue, Grillo and Wedlock all appealed the judgment. The first sentence of the opening brief references all three of the appellants. Relief cannot be denied merely because "Horse Rescue" is used as a shorthand term in the brief to refer collectively to appellants.
DISPOSITION
The judgment is reversed with directions to the trial court to enter judgment in favor of Horse Rescue of America, Leo Grillo and Nancy Wedlock. Appellants are entitled to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
BOREN, P.J. We concur:
DOI TODD, J.
ASHMANN-GERST, J.