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Richard Huse v. Auburn Associates

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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