Opinion
A115625.
2-26-2009
NAHUM GUZIK, Plaintiff and Appellant, v. WING K. KING, Defendant and Respondent.
Not to be Published in Official Reports
In a strongly worded letter, defendant Wing K. King confronted plaintiff Nahum Guzik about an extra-marital affair that plaintiff had with defendants wife. The letter was sent to plaintiffs place of business and was opened by an employee. Plaintiff brought suit against defendant seeking damages for defamation and invasion of privacy. The court granted summary adjudication of the defamation claim and a jury returned a defense verdict on the invasion of privacy claim. Plaintiff appealed and we affirm the judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is the president of Guzik Technical Enterprises, Inc. (GTE), a high-tech company in Mountain View, California. Defendant is a physician at the University of California at San Francisco Medical Center (UCSF), as is his wife, Martha Nolte. In early September 2004, defendant mailed a three-page, single-spaced, typed letter to plaintiff at GTE. The envelope did not indicate that the letter was personal or confidential. The letter was opened by the vice-president of sales and customer service at GTE, Mari Shido. Shido read the first few sentences of the letter. After realizing the letter was of a personal nature, Shido nevertheless "skimmed through" the rest of the letter out of concern for plaintiffs safety.
In the letter, defendant wrote about plaintiffs relationship with defendants wife. Defendant expressed his belief that plaintiff seduced Nolte, causing her to violate the Hippocratic Oath and to compromise her medical ethics. Defendant expressed strongly worded, critical sentiments about plaintiff, describing him as "evil," "immoral," an "animal," a "home wrecker[]," and a "shameless and ruthless wolf." In the final paragraph of the letter, defendant referenced a "threatening message" that plaintiff had asked Nolte to convey to defendant. After calling plaintiff a "shameless" "`jerk," defendant stated: "I am a man of principle and I do not yield to threat or blackmail."
At some point after reviewing the letter, Shido brought it to plaintiff. Plaintiff read the letter and then spoke to Shido about it for a "couple of hours." Following this incident, Shido continued to work for plaintiff. However, based on her review of the letter, she had doubts about plaintiffs personal integrity.
In October 2004, approximately one month after receiving the letter, plaintiff filed a complaint asserting causes of action for defamation and invasion of privacy. The complaint alleged that the letter was defamatory on it face. The complaint also alleged that defendant had "intentionally intruded upon plaintiffs private affairs, namely plaintiffs medical records, in a manner which would be highly offensive to a reasonable person and ha[d] thereby invaded plaintiffs privacy."
In May 2005, defendant filed a motion for summary judgment, or in the alternative, summary adjudication. The trial court granted summary adjudication as to the defamation claim, and the matter proceeded to a jury trial on the remaining claims. By special verdict, the jury found in favor of defendant and the instant appeal followed.
II. DISCUSSION
A. Defamation
1. Consideration of Evidence Submitted with Reply Papers
Plaintiff contends that the trial court improperly relied on evidence that had not been included in defendants separate statement of undisputed facts filed with his moving papers. The gist of plaintiffs objection is that defendant submitted with his reply papers excerpts from Shidos deposition testimony that had not been filed with or referenced in his moving papers.
Plaintiffs factual assertions are largely correct. The excerpts of Shidos deposition testimony relied upon in the moving papers indicated that Shido read the first few sentences of the letter and "skimmed through the rest," and that despite the contents of the letter, she continued to work for plaintiff. Defendant also included excerpts of plaintiffs deposition testimony, in which plaintiff stated that the letter had not changed Shidos opinion of him and that she possibly even had a "higher opinion" of him. In opposition to defendants motion, plaintiff argued that after skimming through the letter Shido had doubts about his integrity and the references to "blackmail" and "seduction" were what caused these doubts. In reply, defendant countered that Shidos doubts in fact arose from the statements in the letter that plaintiff was "evil" and an "animal," relying upon additional excerpts from Shidos deposition. The trial courts order granting summary adjudication of the defamation claims cited to those portions of Shidos deposition testimony to support its conclusion that Shidos doubts about plaintiffs personal integrity stemmed from "the use of the words `evil and `animal and not any allegedly defamatory per se statements (`evil and `animal being opinion or rhetorical hyperbole)." The question posed by these facts is whether it was error for the court to rely upon evidence produced for the first time in defendants reply papers.
A motion for summary judgment must be supported by "a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed," followed by a reference to the supporting evidence. (Code Civ. Proc., § 437c, subd. (b)(1).) The opposition must include a responsive separate statement also followed by a reference to the supporting evidence. (Id., subd. (b)(3).) The statute authorizes the filing of a "reply to the opposition," but does not specify whether it may include a separate statement and additional evidence. (Id., subd. (b)(4).)
Appellate courts are divided on the issue of whether courts may rely on evidence not included in the moving partys separate statement. (See generally Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1189 (Wall Street Network ).) But we find persuasive the reasoning expressed in San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts): "Whether to consider evidence not referenced in the moving partys separate statement rests with the sound discretion of the trial court, and we review the decision to consider or not consider this evidence for an abuse of that discretion." (See also Zimmerman, Rosenfeld, Gersh & Leeds, LLP v. Larson (2005) 131 Cal.App.4th 1466, 1478.) Factors to be considered in reviewing the trial courts determination include the simplicity or complexity of the facts in question, whether the evidence was "hidden in voluminous papers" or was expressly called to the courts attention, and any due process concerns arising from the late filing. (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 316.)
Here, the trial court did not abuse its discretion by considering the evidence defendant submitted with his reply. First, the facts at issue were straightforward. Plaintiff was fully aware of the issues to be addressed in opposing the motion—whether Shidos opinion of plaintiffs personal integrity had changed and why. The additional evidence did not expand or alter these issues. Second, plaintiff was also aware of the evidence to be rebutted, i.e., Shidos opinion of plaintiff after reviewing the letter. The additional testimony cited in defendants reply merely responded to plaintiffs opposition argument that references in the letter to "blackmail" and "seduction" were what caused Shido to question plaintiffs integrity. Third, the evidence was not "hidden in voluminous papers," but was expressly cited and brought to the courts and plaintiffs attention. Indeed, the challenged evidence was contained, albeit on different pages, in the excerpts of Shidos deposition testimony that plaintiff submitted with his opposition papers. Finally, there are no due process concerns. The reply papers were served on plaintiffs attorney at least five days before the hearing. (§ 437c, subd. (b)(4).) Plaintiff thus had notice and an opportunity to respond to the challenged evidence. Plaintiff did not dispute the veracity of the evidence; nor did he ask for a continuance to rebut it. Under these circumstances, the trial court did not abuse its discretion by considering the evidence submitted by defendant with his reply papers. (Wall Street Network, supra, 164 Cal.App.4th at p. 1183 ["a trial court may properly consider new evidence submitted with a reply brief `so long as the party opposing the motion for summary judgment has notice and an opportunity to respond to the new material"].)
2. Libel
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.) "The sine qua non of recovery for defamation . . . is the existence of falsehood." (Letter Carriers v. Austin (1974) 418 U.S. 264, 283 (Letter Carriers).) A statement is libelous on its face if it "is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact." (Civ. Code, § 45a.)
Plaintiff contends that the letter is libelous on its face. He argues the letter falsely accuses him of blackmail and seduction. Defendant counters that the letter expresses nonactionable opinions and hyperbole.
Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375 (Franklin) sets forth the analysis for determining whether a writing is libelous on its face. In resolving that issue, "the question is not strictly whether the published statement is fact or opinion. Rather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact." (Id. at p. 385.) "[S]atirical, hyperbolic, imaginative, or figurative statements are protected because `the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact." (Ibid.) "Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide [citations], unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood." (Ibid. )
A statement of opinion is actionable only "`if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false." (Franklin, supra, 116 Cal.App.4th at p. 386.) Thus, an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion. (Id. at pp. 386-387.) In determining whether a statement is actionable, we examine the totality of the circumstances, starting with the language of the allegedly defamatory statement itself. For statements to be defamatory, they must be understood in a defamatory sense and considered in the context in which they were made. (Id. at p. 385.)
The letter expressed the opinions that plaintiff was an "evil" person who acted like an "animal" and a "shameless and ruthless wolf" with respect to his involvement with defendants wife Nolte. The letter starts by charging plaintiff with "grand, immoral deeds," in which he "managed to seduce [Nolte] and to take advantage of her" because of his "animal instincts." The letter then states: "What kind of gentleman would do something like this." In the final paragraph of the letter, defendant wrote: "You also had the raw nerve to ask my wife to convey the threatening message to me that you have very powerful friends in the city and at UCSF and you can terminate my professional and social activities at UCSF and San Francisco. You are really shameless and the number one `jerk. You should be really ashamed of yourself, of course, only if you have [a] conscience or common decency. . . . I am a man of principle and I do not yield to threat or blackmail."
The allegedly libelous portions of the letter are just the kind of rhetorical hyperbole, epithets, and figurative statements that are nonactionable. The reference to "blackmail" cannot fairly be interpreted as an accusation of a crime, but taken in context was a hyperbolic expression used to describe plaintiffs conduct vis-à-vis defendant. (See Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1472-1473 [term "`virtually stalking" was a metaphor used to describe plaintiffs conduct]; Franklin, supra, 116 Cal.App.4th at p. 389 [statements that plaintiff "`stole" and "`plagiarized" data "appear in context as rhetorical hyperbole"]; see also Letter Carriers, supra, 418 U.S. at pp. 283-285 & fn.16 ["`traitor[s]" understood to mean that plaintiffs actions were reprehensible, not that plaintiffs had committed treason]; Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14 ["`blackmail" a vigorous epithet used to describe unreasonable negotiations]; Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 278-279 [calling plaintiff "thief" and "liar" during campaign was hyperbole].)
To the extent plaintiff challenges the letters reference to his "seduction" of Nolte, we note that this argument was belatedly raised in his reply brief. Ordinarily, appellate courts do not entertain such untimely claims and deem the issues as being waived. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Plaintiff, nevertheless, argues that he has not waived this issue because he raised it in a footnote in his opening brief. However, the footnote merely references that plaintiff, in opposing summary judgment, argued that the allegation of seduction brought his character into disrepute. The footnote also references a portion of the record regarding plaintiffs request for judicial notice filed with his opposition papers, in which he requested the trial court to consider a printout of an Internet news report regarding a United Kingdom decision in favor of Roman Polanski against a magazine that published an article stating that Polanski had tried to seduce a woman soon after Sharon Tates murder. We disagree that these fleeting and esoteric references constitute the type of meaningful argument and analysis required on appeal. (See Sehulster Tunnels/Pre-Con v. Traylor Brothers, Inc./Obayashi Corp. (2003) 111 Cal.App.4th 1328, 1345, fn. 16; McComber v. Wells (1999) 72 Cal.App.4th 512, 522.)
In any event, even if this belated argument had been properly raised, it is without merit. The gist of plaintiffs claim is that the letters reference to his seduction of Nolte is libel per se because it reflects upon his integrity in such a manner as to bring him into disrepute. The seduction reference was made in the context of defendants opinion that Nolte had been suffering from emotional problems, which he believed allowed plaintiff to take advantage of her. Specifically, in the letter defendant states that Nolte "was like a completely different person . . . and I assume that was because of your influence. Instead of providing to her common sense advice to seek professional counseling, you managed to seduce her and to take advantage of her because of your animal instincts. You are just evil." (Italics added.) Both the words and their context support the conclusion that the controverted statement was an expression of opinion rather than of fact, and thus not actionable. (See, e.g., Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 256, 268 [alleged defamatory statement beginning with "My impression is" constituted statement of opinion]; Carr v. Warden (1984) 159 Cal.App.3d 1166, 1168, 1170 [statement by chairperson of environmental group that he thought someone on the planning commission was being bought was nonactionable opinion].)
B. Invasion of Privacy
At trial, plaintiff claimed that defendant improperly accessed his computerized medical records at UCSF. According to plaintiff, defendants defense to the invasion of privacy cause of action was "based entirely" on his claim that Nolte informally consulted or had a "curbside consultation" with him. The record belies this claim. At trial, defendant also argued that the invasion of privacy claim failed because the mere review of medical records was not "highly offensive" and because plaintiff had no damages.
On appeal, plaintiff contends that Nolte was entitled to prevent defendant from disclosing confidential communications made while they were husband and wife. "Evidence Code section 980 establishes a privilege for confidential communications between spouses: `[A] spouse . . ., whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife." (People v. Badgett (1995) 10 Cal.4th 330, 363.) "That privilege against disclosure of privileged communications is vested in each spouse and consequently if a spouse is called as a witness he or she may not testify as to confidential communications without his or her consent and the consent of the other spouse. Either spouse may claim the privilege. [Citations.] The privilege survives the termination of the marriage and continues to exist even though the marriage has been terminated by divorce." (People v. Dorsey (1975) 46 Cal.App.3d 706, 717, italics omitted.) The "claimant of the confidential marital communication privilege has the burden to prove, by a preponderance of the evidence, the facts necessary to sustain the claim." (People v. Mickey (1991) 54 Cal.3d 612, 655; see also People v. Von Villas (1992) 11 Cal.App.4th 175, 221.)
Plaintiff claims that the trial court erroneously allowed defendant to testify that he had consulted with Nolte regarding her treatment of plaintiff, which entitled defendant to review plaintiffs medical records. Even though Nolte, as the holder of the privilege, did not raise the marital communications privilege at trial (Evid. Code, § 980), plaintiff insists that this issue has not been waived. According to plaintiff, Nolte was precluded from asserting the privilege. However, plaintiff fails to indicate how Nolte was denied the opportunity to claim the privilege. For example, there is no evidence that Nolte attempted to assert the privilege, but was erroneously denied the opportunity due to her nonparty status. More importantly, the marital communication privilege extends to the substance of the conversation, not the fact of it. (Tanzola v. De Rita (1955) 45 Cal.2d 1, 6; see also People v. Bradford (1969) 70 Cal.2d 333, 342, fn. 2; Rubio v. Superior Court (1988) 202 Cal.App.3d 1343, 1348.) Here, the substance of the "curbside consultation" was never at issue. Rather, defendant merely testified about the fact that the consultation had occurred. Finally, in light of plaintiffs failure to present evidence of any discernable damage, any error in admitting this testimony was harmless. (See Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800-802.)
III. DISPOSITION
The judgment is affirmed. Defendant is entitled to his costs on appeal.
We concur:
RUVOLO, P.J.
REARDON, J. --------------- Notes: After defendant moved for summary judgment, plaintiff filed an amended complaint, adding a third cause of action for unauthorized use or disclosure of medical information in violation of Civil Code section 56.10. 2. We disagree with defendants contention that plaintiff waived this claim by failing to assert it below. According to the augmented record, plaintiff objected to the late-filed evidence prior to the trial courts ruling. 3. Unless otherwise designated, all subsequent statutory references are to the Code of Civil Procedure. 4. Defendant argues that this portion of the appeal should be dismissed because plaintiff has no standing to assert the marital communication privilege that belongs to Nolte. Defendant has also filed a motion for sanctions on the ground that this portion of plaintiffs appeal is frivolous. We deferred ruling until the time of decision and now deny the motion for sanctions. It is clear that plaintiff is not attempting to assert the marital communications privilege on Noltes behalf. Rather, his position is that Nolte was not afforded the opportunity to claim the privilege at trial. 5. Plaintiff relies on the fact that the trial court denied Noltes in limine motions to exclude evidence regarding her sexual relationship with plaintiff and to allow Noltes attorney to attend trial and object to questions posed at trial. Plaintiff also relies on a declaration from Nolte submitted with the reply papers in support of his motion for new trial, in which Nolte declares that she would have asserted the privilege had she had an opportunity to do so. However, the record discloses no evidence that Nolte was, in any way, precluded from asserting the marital communications privilege, had she wished to do so.