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Richard Huse v. Auburn Associates

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


August 5, 2011

RICHARD HUSE, PLAINTIFF AND APPELLANT,
v.
AUBURN ASSOCIATES, INC. ET AL., DEFENDANTS AND RESPONDENTS.

(Super. Ct. No. SCV21364)

The opinion of the court was delivered by: Blease , J.

Huse v. Auburn Associates CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Richard Huse appeals from a judgment entered by the trial court after it granted summary adjudication, summary judgment and judgment on the pleadings to defendants Auburn Honda and Jay Cooper.

Huse, after suing defendants in federal court for various employment related claims and obtaining a substantial settlement, brought this action for defamation and invasion of privacy when he discovered that Cooper had made certain comments about him while the federal action was ongoing.

The trial court granted Auburn Honda's motion for summary adjudication of the defamation claim and one of the privacy claims. It found the alleged defamation, that Huse was a lying, thieving snake, was not a statement of fact, but one of opinion only. It found that Huse could not state a cause of action for invasion of privacy based upon Cooper's disclosure of the amount of the settlement in the federal action because the information was not private, inasmuch as defendants were under no nondisclosure obligation. It found that defendants could not be held liable for invasion of privacy based upon Cooper's disclosure that Huse was a felon and had done prison time because the disclosure was not widely disseminated by Cooper, because the information was a matter of public record and, because the disclosure was covered by the agreement in settlement of the prior federal action.

We shall conclude that the alleged defamatory statement was a statement of opinion rather than fact, and was not actionable. We also conclude the disclosure of the settlement amount did not amount to the disclosure of an offensive and objectionable private fact. We conclude the disclosure of Huse's criminal history was not widely disseminated, as is required to state a cause of action for invasion of privacy.

The trial court did not initially grant Cooper's motion for summary adjudication of the first two causes of action because Cooper, who joined in Auburn Honda's motion, did not file a separate statement of undisputed facts. Cooper later brought a motion for judgment on the pleadings and requested the trial court take judicial notice of its prior ruling.*fn1

The trial court granted Cooper's motion for judgment on the pleadings, finding Huse was collaterally estopped from relitigating the issue. While we agree that Cooper and Auburn Honda were equally entitled to adjudication in their favor of the first two causes of action, collateral estoppel was not applicable in this situation because the prior ruling was in the same action and was not a final judgment. Nevertheless, under the circumstances of this case, Cooper was entitled to entry of judgment in his favor, even though he filed no separate statement of undisputed facts.

We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Huse was a car salesman, and was employed in that capacity by Auburn Honda for several years.*fn2 Huse ceased his employment with Auburn Honda in February 2003. In February 2004, Huse and Jeff Duncan, another Auburn Honda employee, filed a complaint against Auburn Honda, Cooper, and others in federal court alleging sexual harassment, hostile work environment, retaliation, age discrimination, wrongful discharge, and other statutory violations.

That action ended in settlement in May 2006. After settling with Duncan, but before settling with Huse, Cooper told his sales manager, Larry Leonardo, that Duncan would not get much money after he paid his attorneys, and that Huse, "the biggest lying, thieving, snake of the bunch did not settle!" After Cooper and Auburn Honda settled the federal litigation with Huse, Cooper told Leonardo that Huse had settled for $385,000. Cooper told Leonardo that his friends in law enforcement had informed him that Huse "was a convicted felon who [had been] in prison and [was] nothing but a lying, thieving snake!" Cooper's discussions occurred when Cooper was "very, very, very upset," and "pissed off at the whole thing." The discussions took place in Leonardo's office, Cooper's office, and in the hallway going into Cooper's office. There were no other people present.

The settlement agreement Cooper and Auburn Honda entered into with Huse contained a release. Huse, as plaintiff, agreed to release the defendants from any claims "which Plaintiff now has or may hereafter have not only by virtue of those acts as more specifically set forth in his lawsuit on file herein, but also with respect to any other claims in any other form or fashion he may have against Defendants with respect to any federal, state or municipal or local law whether it be with respect to civil rights, public policy, contract, tort, wage-hour questions or disputes, pensions, vacation or any other claim arising out of common law including but not limited to causes of action for wrongful termination, discrimination, misrepresentation, negligent misrepresentation, wage and hour claims, breach of any implied covenant of good faith and fair dealing, or violation of any federal, state, or local statute, law ordinance, or any other action or claim whatsoever arising out of his employment or association with said Defendants." The release stated that the parties waived Civil Code section 1542,*fn3 and Huse agreed to release "future claims which may arise from the above-mentioned transactions, disputes, or differences in litigation, whether such claims are currently known, unknown, foreseen or unforeseen, patent or latent."

The settlement document also contained a confidentiality agreement that provided: "Plaintiff [Huse] and his attorneys, agree to keep the terms and conditions of this Agreement completely and strictly confidential."

Leonardo told Huse about Cooper's statements to Leonardo in July 2006. Huse later filed this action, in which he alleged that beginning in May 2006, Auburn Honda and Jay Cooper, its principal shareholder and director, told Julius (Larry) Leonardo, Auburn Honda's sales manager, and others that Huse was "a lying, thieving snake." This is the statement upon which Huse's defamation claim is based.

Huse's complaint contains two causes of action for invasion of privacy. One (the second cause of action) is based upon Cooper's communication of the amount paid to Huse in settlement of his federal lawsuit and the comment that Huse was a lying, thieving snake. The other (the third cause of action), is based upon Cooper's communication of Huse's criminal past.

A. Defendants' First Motion for Summary Judgment/Summary Adjudication

Auburn Honda filed a motion for summary judgment, or in the alternative, summary adjudication. Cooper filed a motion for summary judgment in which he purported to join in Auburn Honda's motion and incorporate by reference Auburn Honda's moving papers. Cooper did not file his own separate statement of undisputed facts. The trial court granted summary adjudication on the first two causes of action to Auburn Honda only, finding Cooper's motion deficient for failure to file his own separate statement of undisputed facts.

The trial court found that the defamation and invasion of privacy claims would not necessarily be claims that arose out of Huse's employment and association with Auburn Honda. Therefore, summary judgment based on the settlement and release agreement was not appropriate.

The trial court granted summary adjudication as to the defamation claim on the ground the statement was opinion and not fact. As to the cause of action for invasion of privacy based upon the disclosure of the settlement amount, the trial court found that Auburn Honda was under no obligation to keep the terms and conditions of the settlement agreement private, since the agreement precluded only Huse from disclosing its terms.

The trial court denied summary adjudication as to the third cause of action, the invasion of privacy claim based upon the disclosure of Huse's criminal past. Auburn Honda had argued that the disclosure was protected by the litigation privilege and that there could be no liability for disclosing truthful information contained in public records. The court found that Auburn Honda had failed to meet its burden of proof by failing to submit evidence as to the truthfulness of the statement and as to the availability of public records verifying the statement. By denying summary adjudication of the third cause of action, the trial court implicitly rejected Auburn Honda's litigation privilege claim as well.

B. Second Motion for Summary Adjudication

Cooper and Auburn Honda brought a second motion for summary adjudication as to the third cause of action. The motion argued the claim was covered by the release agreement because it arose in the context of the employment lawsuit and because Huse learned of the statement before he signed the release agreement.

Defendants argued again that they could not be liable for publishing truthful information available in public records. They produced a declaration by their private investigator attaching written documents regarding Huse's criminal record. The investigator stated that he had not used any special access or private databases to obtain the documents, and that the information was available to the public.

Cooper and Auburn Honda argued again that the disclosure was protected by the litigation privilege and was not widely disseminated, and that the cause of action was barred by the statute of limitations.

The trial court granted summary adjudication as to the third cause of action. The court stated three grounds for its determination. First, it found that Huse's criminal history was a matter of public record. Second, it found that the disclosure was not widely published. Third, it found that the action was barred by the terms of the settlement agreement. It found the statement regarding Huse's status as an ex-felon was "directly related to the plaintiff's employment while at Auburn Honda. The previous [sic] settled law suit related [to] the termination of the plaintiff from Auburn Honda. At the time the plaintiff signed the settlement agreement he was aware that Cooper had made the alleged comments about his criminal background. However, plaintiff chose not to pursue any invasion of privacy action because Cooper had denied making the statements."

C. Cooper's Motion for Judgment on the Pleadings

Cooper filed a motion for judgment on the pleadings, arguing that the first two causes of action had been actually litigated, and the doctrine of collateral estoppel precluded the relitigation of those issues. The trial court granted the motion. The court found that Huse had a full and fair opportunity to litigate the summary adjudication as to the first two causes of action, and was estopped from relitigating those issues. Judgments were entered in favor of Auburn Honda and Cooper.

DISCUSSION

I

Statement of Opinion is Not Defamatory

Auburn Honda argued in its motion for summary judgment that the release agreement covered all the claims being raised by Huse. It further argued it was entitled to summary judgment on Huse's defamation cause of action because, inter alia, the statement was one of opinion only.*fn4

The trial court concluded Cooper's statement that Huse was a lying, thieving snake was an opinion, thus not actionable. We agree. The trial court did not base its summary adjudication of the defamation cause of action on the ground that Huse had waived the claim by signing the settlement agreement. Thus, even though the parties argue this in their briefing, we need not discuss it.

An essential element of defamation is that it contain a statement of fact. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600 (Gregory).) "If defendant's statement is one of opinion, then it cannot be false and is outside the meaning of libel." (Tschirky v. Superior Court (1981) 124 Cal.App.3d 534, 539.) The court must determine "'whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.'" (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 113.) Whether a statement is one of fact or opinion is a question of law to be decided by the court. (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 260 (Baker).)

The distinction between an opinion and a statement of fact is "frequently . . . difficult" and requires the court to put itself in the position of the hearer in order to determine the meaning of the statement according to its probable effect on the average hearer. (Baker, supra, 42 Cal.3d at p. 260.) An apparent statement of fact may assume the character of an opinion "in light of the nature and content of the communication taken as a whole." (Gregory, supra, 17 Cal.3d at p. 601.) Courts look to the "'totality of the circumstances,'" examining first the language of the statement, then the context in which the statement was made. (Hufstedler, Kaus & Ettinger v. Superior Court (1996) 42 Cal.App.4th 55, 67.)

Examining the language of the statement in this case, Cooper's claim that Huse was a snake cannot have been meant as anything but an opinion, since it is not possible that Huse was literally a snake. The claims that he was lying and thieving have at least the appearance of fact. We look to the circumstances surrounding the statement to determine whether the statement could be reasonably understood in the defamatory sense.

Cooper made the statements at issue to Leonardo, who was Auburn Honda's general manager. Cooper made the statements after he came back from meetings regarding lawsuits filed by various employees, including Huse. When Cooper came back from these meetings he was "very, very, very upset[.]" He would go into Leonardo's office and "vent" because he was "pissed off at the whole thing."

Language which might be considered a statement of fact may assume the character of a statement of opinion when made in a "setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole[.]" Gregory, supra, 17 Cal.3d at p. 601.) In the setting involved here, Cooper was angry over the lawsuits filed by his ex-employees, including Huse, and the demands being made by them. He was "venting" his anger to his general manager. It is a setting in which the general manager would have expected Cooper's epithets to be statements of his opinion of Huse and the other plaintiffs, rather than statements of actual fact.

The statement is analogous to the one in Greenbelt Co-op Pub. Assn. v. Bresler (1970) 398 U.S. 6 [26 L.Ed.2d 6], in which the Supreme Court held that the statement that a real estate developer's negotiating position was "blackmail" was not a statement of fact where it was made during heated negotiations between a city and the developer over the sale of land for a school. The court held that it was impossible to believe that any reader could have thought that the developer was being charged with a crime. (Id. at p. 14 [p. 15].) Rather, the statement was a criticism of the developer's legal negotiating proposals. (Ibid.)

Likewise, courts have regarded as opinion statements that a plaintiff "was a 'shady practitioner' (Lewis v. Time Inc. (9th Cir. 1983) 710 F.2d 549, 554), 'crook' (Lauderback v. American Broadcasting Companies (8th Cir. 1984) 741 F.2d 193, 195-198), or 'crooked politician' (Fletcher v. San Jose Mercury News, supra, 216 Cal.App.3d at pp. 190-191)." (Copp v. Paxton (1996) 45 Cal.App.4th 829, 837.)

Under the totality of the circumstances presented here, we agree with the trial court that no reasonable fact finder could conclude that the statements implied a provably false factual assertion.

Huse also argues that Cooper's defamatory statement (that Huse was a lying, thieving, snake) was defamation per se. The significance of a statement being defamation per se is that the plaintiff need not prove actual damages. (Regalia v. Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) However, a statement cannot be defamation per se if it is not defamation at all. Because we conclude the allegedly defamatory statement was opinion, it is outside the meaning of libel, thus cannot be defamatory per se.

Huse also argues that defendants cannot claim privilege as a defense to the defamation because Cooper denied making the statement. The trial court did not find the statement was privileged. Rather, it found the statement was one of opinion rather than fact, thus was not actionable defamation.

II

Invasion of Privacy Requires Objectionable Private Facts

The tort of invasion of privacy in the publication of private facts contains the following elements: "(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern." (Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126.) These elements are substantially the same as the formulation set forth in the Restatement, which provides: "One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of his privacy, if the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." (Rest.2d Torts, § 652D, p. 383; Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.) We shall conclude that Huse's second cause of action fails because the information was neither private nor offensive and objectionable to the reasonable person.

Huse's second cause of action for invasion of privacy alleged that his right to privacy was violated by "communicating to third parties the amount of the settlement received by [Huse] and telling third parties that Plaintiff is a lying, thieving snake." We have already concluded that the second of these statements was not a fact at all, but only an expression of opinion. Thus, it does not qualify as a "private fact" for purposes of an invasion of privacy cause of action.

Auburn Honda argued below that Huse could not establish a claim of invasion of privacy based upon the disclosure of the settlement amount because it was not bound by the confidentiality portion of the settlement agreement and because the statement was not offensive or objectionable.*fn5 The trial court found that the communication regarding the settlement amount was not a private fact because it was not private. The court found that because defendants were under no obligation to keep the settlement terms confidential, the disclosure of those terms could not be the basis of a cause of action for invasion of privacy. It granted summary adjudication as to the second cause of action on that basis.*fn6

Huse points to the statutes preventing the disclosure of information on a tax return by a business performing bookkeeping services, and argues his settlement amount was likewise confidential. (Civ. Code, §§ 1799-1799.1a.) Aside from the obvious fact that such statutes do not make amounts received in settlement of a lawsuit "private," this argument also suffers because a cause of action for invasion of privacy requires that the private facts disclosed be "offensive and objectionable to the reasonable person . . . ." (Diaz, supra, 139 Cal.App.3d at p. 126.) "As is said in Davis v. General Finance & Thrift Corp., 80 Ga.App. 708 [57 S.E.2d 225, 227]: '. . . the protection afforded by the law to the right of privacy must be restricted to "ordinary sensibilities" and not to supersensitiveness or agoraphobia. [Citation.] There are some shocks, inconveniences and annoyancies [sic] which members of society in the nature of things must absorb without the right of redress.'" (Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 748.)

We are persuaded by the Oregon Supreme Court's holding in a case containing similar facts. In that case, the plaintiff's husband committed suicide, and an agent of the defendant insurance company, in order to advertise the company's business, told several people in plaintiff's hometown how much the insurance policy on the husband's life paid out to plaintiff as beneficiary. (Hamilton v. Crown Life Ins. Co. (1967) 246 Or. 1.) The court reasoned as follows: "The disclosure to strangers of the fact that the husband had left the plaintiff some life insurance, while distinctly a private matter, would not be substantially more embarrassing to an ordinary reasonable person in plaintiff's position than would have been a disclosure to strangers that her husband had left her a safe-deposit box full of securities, or a substantial checking account in the bank. When the facts alleged in the complaint are examined in the light of what would be offensive to the ordinary reasonable person, the injury is not one that would justify resort to the courts for damages." (Id. at pp. 5-6.)

Likewise here, the amount plaintiff received in settlement of his claim is not a fact that would be offensive to the ordinary reasonable person. The fact that plaintiff himself was under a contractual obligation not to disclose the amount of the settlement is of no consequence. By receiving a substantial amount in settlement of his action, plaintiff was in effect the winner in the case, and the disclosure of the amount of the settlement, viewed from the standpoint of the reasonable person, was not highly offensive. Huse cites Teamsters Local 856 v. Priceless LLC (2003) 112 Cal.App.4th 1500 (Priceless), for the proposition that the salaries of city employees are private, but fails to recognize that Priceless was overruled by the Supreme Court, which held that any expectation of privacy that public employees have in the confidentiality of their salaries is not reasonable. (International Federation of Professional and Technical Engineers, Local 21, AFL-CIO et al. v. Superior Court (2007) 42 Cal.4th 319, 336.)

The trial court correctly granted summary adjudication on plaintiff's second cause of action.

III

No Publicity

The trial court gave three reasons for granting summary adjudication on cause of action number three for invasion of privacy in the disclosure of Huse's criminal history. First, the court determined that Huse's record as a felon and commitment to prison are a matter of public record. Second, the court found that Huse alleged the information was disclosed to only a few people and thus did not meet the publicity requirements of the cause of action. Third, the court found that the cause of action was barred by the terms of the settlement agreement, which expressly waived Huse's right to sue for causes of action related to his employment. We shall conclude that the statute of limitations narrows Huse's claim to a statement made to no more than two people, and dissemination to such a small group does not meet the publicity requirements for a cause of action for invasion of privacy.

The statute of limitations for bringing a claim of invasion of privacy is two years from discovery of the tort. (Code Civ. Proc., § 335.1.) Huse filed this action on July 10, 2007. Huse admitted he first learned that Cooper told Larry Gonzalez about his criminal record sometime between 2003 and 2004. However, Huse claimed he learned in 2006 that Cooper had told the same information to Shelly Cummings and Larry Leonardo. Thus any invasion of privacy claim is necessarily based upon Cooper's statement to Cummings and Leonardo, because any statement to Gonzalez is time barred.

Actionable invasion of privacy requires that the disclosure be "widely published and not confined to a few persons or limited circumstances." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 27 (Hill).) As previously stated, the elements of a cause of action for invasion of privacy in this state follows the formulation set forth in the Restatement. (Shulman v. Group W productions, Inc., supra, 18 Cal.4th at p. 214.) The Restatement explains that the publicity necessary for an actionable invasion of privacy differs from the publication giving rise to an action for defamation. (Rest.2d Torts, § 652D, p. 384.)

"'Publication,' in that sense [i.e., defamation], is a word of art, which includes any communication by the defendant to a third person. 'Publicity,' on the other hand, means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge. The difference is not one of the means of communication, which may be oral, written or by any other means. It is one of a communication that reaches, or is sure to reach, the public." (Rest.2d Torts, § 652D, p. 384.)

Thus, it is not an invasion of privacy to communicate a private fact to a single person or even to a small group of persons. (Ibid.)

Huse's deposition responses indicated he knew of only three people Cooper told about his criminal record, and he was aware of one of those conversations well before the two year statute of limitations commenced. We conclude Huse was unable to establish the public disclosure element of the invasion of privacy cause of action.

Huse argues in his reply brief that Hill, supra, 7 Cal.4th at page 27 suggested that wide publicity is not necessary to the establishment of the cause of action. However, Hill, supra, distinguished the common law tort of invasion of privacy from the right to privacy as set forth in the California Constitution. It was in this context that the court stated that the "reference to the common law as background to the California constitutional right to privacy is not intended to suggest that the constitutional right is circumscribed by the common law tort." The court explained that "common law invasion of privacy by public disclosure of private facts requires that the actionable disclosure be widely published and not confined to a few persons or limited circumstances. (Rest.2d Torts, § 652D, com. a.) In contrast, the ballot arguments describe a privacy right that 'prevents government and business interests from collecting and stockpiling unnecessary information about us and or misusing information gathered for one purpose in order to serve other purposes or to embarrass us.'" (Id. at p. 27.)

Huse's first amended complaint did not state a cause of action for violation of his right to privacy secured by article I, section 1 of the California Constitution. His cause of action is for the common law tort only.

Because we have concluded Huse cannot establish a cause of action for invasion of privacy based upon the disclosure of his criminal record on the ground there was no publicity, we need not address the arguments of respondents that the information disclosed was a matter of public record, or that the disclosure was protected by the litigation privilege.

IV

Collateral Estoppel

Huse argues the trial court erred when it granted Cooper's motion for judgment on the pleadings as to the first and second causes of action. He claims the trial court improperly relied on collateral estoppel in granting the motion. We agree that the doctrine of collateral estoppel was inapplicable. We nevertheless conclude judgment should have been entered in Cooper's favor.

Collateral estoppel precludes the relitigation of issues that were argued and decided in a prior proceeding. (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341.) It does not apply unless: (1) the issue sought to be precluded is identical to the issue decided in a former proceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the former proceeding; (4) the decision in the former proceeding was a final decision on the merits; and (5) the party against whom the doctrine is to be applied was the same as, or in privity with the party to the former proceeding. (Ibid.)

In this case, the doctrine of collateral estoppel is inapplicable because there was no former proceeding and because there was no final decision. The doctrine of collateral estoppel does not apply unless the first ruling was in a former action. (Lennane v. Franchise Tax Bd. (1996) 51 Cal.App.4th 1180, 1185.) Nor does the doctrine apply where the former adjudication was not final. The determination whether a prior adjudication is sufficiently final to be accorded preclusive effect depends on: "(1) whether the decision was not avowedly tentative; (2) whether the parties were fully heard; (3) whether the court supported its decision with a reasoned opinion; and (4) whether the decision was subject to an appeal." (Border Business Park, Inc. v. City of San Diego (2006) 142 Cal.App.4th 1538, 1565.) An order granting summary adjudication is not subject to an appeal because it is not an appealable order. (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 319.)

Thus, the motion for judgment on the pleadings was not properly granted on the ground of collateral estoppel. However, the trial court should have granted Cooper's earlier motion for summary adjudication of the first two causes of action, thus the judgment was correctly granted in Cooper's favor. "'[A] ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion.' [Citation.]" (D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)

Although some prior appellate decisions have held that summary judgment cannot be granted to a party who joins in a summary judgment motion without filing a separate statement of undisputed facts, those cases are materially different from the circumstances presented here. Cooper was entitled to summary adjudication of the first two causes of action because he filed a motion for summary adjudication in which he incorporated by reference the moving papers filed by Auburn Honda, and because the facts Cooper would have set forth in his separate statement of undisputed facts were necessarily identical to the facts Auburn Honda set forth in its statement.

In Frazee v. Hall Seely (2002) 95 Cal.App.4th 627, 636 (Frazee), the court held that a simple notice of joinder in a motion for summary judgment was not sufficient for purposes of the summary judgment statute. Frazee was a legal malpractice case against two separate law firms who represented the plaintiff in her marital dissolution action at different stages of the action. (Id. at p. 630.) The first law firm the plaintiff had hired (S&R) filed a motion for summary judgment or adjudication on the grounds the plaintiff could not prove damages, could not show a breach of fiduciary duty, and because there was no material misrepresentation. (Id. at p. 631.) The later-hired law firm (HH&E) filed a notice of joinder, contending that the issues of causation of damages were identical. (Ibid.)

Because HH&E had filed a simple notice of joinder, but had not filed a separate statement, the court opined the joinder was not sufficient for purposes of the summary judgment statute, which requires each moving party to support its motion for summary judgment with a separate statement. (Frazee, supra, 95 Cal.App.4th at p. 636.) The court further held that even if the mere failure to file a separate statement was insufficient to deny the motion, "the separate statement and documentation on which [HH&E] relied did not provide a basis for granting summary judgment in their favor. The separate statement mentions [HH&E] only in terms of their initial involvement in the dissolution action. It does not set forth facts relating to their alleged malpractice that they contend are not in dispute. Without such factual assertions, the court's grant of summary judgment was improper." (Ibid.)

Village Nurseries, L.P. v. Greenbaum (2002) 101 Cal.App.4th 26 (Village Nurseries), was a legal malpractice action filed by the plaintiff against two law firms and an attorney who were hired to perfect and maintain the plaintiff's mechanic's liens on the property of a debtor in bankruptcy. The plaintiff first retained attorney King, of the Coulombe firm to render advice. (Id. at p. 32.) The plaintiff then retained the Greenbaum firm to perfect various mechanic's liens. (Ibid.) The next year, the plaintiff rehired King, and shortly thereafter he terminated his affiliation with the Coulombe firm. (Id. at p. 33.) King took over plaintiff's case, and the Greenbaum firm was formally substituted out as counsel for the plaintiff. (Ibid.)

The bankruptcy court found that the plaintiff's mechanic's liens were invalid because they never had been perfected properly. (Village Nurseries, supra, 101 Cal.App.4th at p. 34.) The plaintiff brought a legal malpractice action against the Coulombe firm, the Greenbaum firm, and King. The Greenbaum firm and the Coulombe firm filed motions for summary judgment based, inter alia, on the statute of limitations. (Id. at p. 35.) King served notices of joinder in both motions. (Ibid.) The trial court granted King's request for joinder. (Ibid.)

The trial court denied the motions on statute of limitations grounds, but granted them on the ground of judgmental immunity. (Village Nurseries, supra, 101 Cal.App.4th at p. 35.) The court of appeal held that the defendants were not entitled to summary judgment on the ground of judgmental immunity, but that the Greenbaum and Coulombe firms were entitled to summary judgment on the statute of limitations ground. (Id. at pp. 36-46.)

However, the court held that King was not entitled to summary judgment because he never filed a motion for summary judgment or a separate statement of undisputed facts, but only filed a notice of joinder in the other motions. (Village Nurseries, supra, 101 Cal.App.4th at pp. 46-47.)

Both of the above cases differ from this one in two important respects. First, Cooper did more than simply file a notice of joinder. He filed a notice of motion and motion for summary judgment or summary adjudication, in which he incorporated by reference the moving papers of Auburn Honda, and specifically Auburn Honda's separate statement of undisputed facts. "The general rule is that in the absence of restrictions imposed by statute or by rules of court, facts alleged in other pleadings in the same case may be incorporated by reference in subsequent pleadings therein." (In re Estate of Dargie (1939) 33 Cal.App.2d 148, 157.)

Second, in the above cases, the undisputed facts filed by the moving parties were insufficient to establish that the parties requesting joinder were entitled to judgment as a matter of law. In Frazee, supra, 95 Cal.App.4th at page 636, the court specifically held that the factual assertions necessary to provide a basis for granting summary judgment in the joining party's favor were not set forth in the moving party's statement.

In Village Nurseries, supra, the plaintiffs argued the statute of limitations was tolled during the time the attorneys continued to represent them. (101 Cal.App.4th at p. 40.) Since the joining party, King, was the last person to represent the plaintiff, and since he represented the plaintiff for a different period of time than either of the moving parties, it would have been necessary for him to establish that the statute of limitations had run against him despite the tolling period for his representation. Such facts would have been different from the facts established by the other defendants.

Here, by contrast, the facts and actors are identical with respect to the issues raised by summary adjudication. The first two causes of action are based upon statements made by Cooper. Auburn Honda's liability is based upon Cooper's statements.

Auburn Honda's separate statement in support of summary adjudication of the first cause of action on the ground the statement was an opinion, set forth the following evidence: (1) that Cooper made the statement to Leonardo during settlement negotiations; (2) that Cooper would vent about how upset he was over the litigation; and (3) that Huse believed the comments were made in reaction to the lawsuit.

Auburn Honda's separate statement in support of summary adjudication of the second cause of action on the ground the information was not private under the settlement agreement set forth the settlement agreement provisions showing that Cooper was not bound by the confidentiality agreement.

The facts set forth in Auburn Honda's separate statement of undisputed facts were incorporated into Cooper's motion for summary adjudication. They were the same facts Cooper needed to show in order to demonstrate that he was entitled to summary adjudication on the first two causes of action. Thus, Auburn Honda's statement of undisputed facts was sufficient to demonstrate that he was entitled to summary adjudication on the first two causes of action.

DISPOSITION

The judgment is affirmed.

We concur: RAYE , P. J. NICHOLSON , J.


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