Martin v. City of Lemoore

ED MARTIN, Plaintiff and Respondent, v. CITY OF LEMOORE, Defendant and Appellant.

F076216

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

November 27, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 14C0082)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.

Murphy, Campbell, Alliston & Quinn, George E. Murphy; and Suzanne M. Nicholson, for Defendant and Appellant.

Farley Law Firm, Michael L. Farley and Joseph R. Beery for Plaintiff and Respondent.

-ooOoo-

Defendant City of Lemoore (City) appeals from a judgment in favor of plaintiff Ed Martin (Martin) following a jury trial on Martin's claim that the City's mayor, William Siegel (Siegel),¹ defamed him and the City ratified his conduct. The City contends the trial court committed reversible error by instructing the jury on ratification with CACI No. 3710. Finding no instructional error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND²

In 2013, Martin was the assistant principal of Lemoore High School, a former city council member and mayor, and a long-time Lemoore resident. In January 2013, Martin started an online newspaper from his home office called the Lemoore Leader (the Leader), which reported on local events and politics.

In May 2013, under Siegel's leadership as mayor, the city council voted to dismantle the City's planning department, ostensibly to save money. Martin criticized the decision in three articles published in the Leader in early May 2013. Siegel perceived the articles to be petty and more name-calling than news. He believed the articles were unfair, as they did not present both sides of the story, and none favored the City's policies.

On May 22, 2013, Siegel went to see Debbie Muro, the superintendent of Lemoore Union High School District. Muro believed Siegel was there in his capacity as mayor. Siegel complained that Martin was using the school's resources and taxpayer money to start his personal business by publishing articles during school hours and using the Lemoore Union High School Foundation's³ email database to send the Leader to alumni.Siegel also told Muro about a complaint Siegel's father had prepared against the foundation, which alleged it was allowing Martin to use "nonprofit organization resources" for political purposes. Siegel's father had given the complaint to Siegel and Jeffrey Laws, the acting city manager and chief of police. Eventually, the police department published the complaint on the Internal Revenue Service's website. According to Muro, Siegel told her Martin should be fired for using the foundation's email addresses to send out the Leader, and advised her that if she did not want the complaint filed, Martin should be fired.⁴ Muro looked into Siegel's accusations, but took no action against Martin.

In June 2013, the city council considered forming a liaison committee consisting of Siegel, and attorney and city council member, John Gordon, who would attend meetings the city manager held with developers and contractors seeking to do business with the City. The matter was brought to the city council for a vote, but it did not pass and the committee was never formed. Before the vote, Martin published an article in the Leader critical of the proposal. In July 2013, Martin published articles in the Leader that discussed a local group's efforts to recall Siegel and Gordon.

Siegel's Emails to Martin

On August 31, 2013, two articles appeared in the Leader—one by former school superintendent Bill Black regarding the development and construction of the high school pool, and the other by Martin questioning why Siegel and Gordon refused to answer his inquiries. At close to midnight on August 31, 2013, the City's parks and recreation director, Joe Simonson, sent an email to Martin, Siegel, Gordon, and Laws regarding these articles. In the email, Simonson explained he was offended by Black's article for its criticism of the recreation department and regarding Martin's article, he stated "[t]hisis a small community and it is a well-known fact that if E[d] Martin does not agree with whatever is said it does not get published. Ask Jeanne Castadio and many others, including myself. Your opinion is all that you will allow to see the light of day so why in God's name would anyone, especially Council members, respond to you?"

Several hours later, at approximately 3:43 a.m. on September 1, 2013, Siegel sent an email to Martin from his personal email address, which read as follows:

"Dear Ed Martin:

"It makes me sad that people consider you as a clown. I hope Mr. Simonson has given you some ideas to help you understand your [i]nconsequential life, and as you seem to be obsessively infatuated with my life I assure you that I hold you in the same regards as the company you keep. [¶] It is my opinion that you have a serious chemicals [sic] imbalance. People in the community speak of your homosexual tendencies and your infatuation with young boys. This, while bothersome and disturbing, is a concern. I want you to know that I do not judge or condemn you for your actions. I ignore the rumors of your moral turpitude as much as I ignore the nonsense you print in the emails you send. I hope that you will find happiness in life and will never consider self[-]termination again. If you need help and feel that the city council can do anything to help you find solace, please reach out to us. We are here to serve and will always find a way to help those in need. We look forward to assisting and guiding you on a path away from your troubled journey.

"William Siegel [¶] Mayor [¶] City of Lemoore"

Siegel also sent the email to Laws, Simonson, Gordon, Siegel's father, and school board member, Jeanne Castadio.

About seven hours later, Siegel re-sent the email to Martin, as well as to Simonson, Gordon and Laws. The second email apparently was sent to correct a typographical error in the original, but the substance of the two emails is the same. Siegel sent the second email from a different email address. Siegel believed he wassending the emails in his capacity as the City's mayor, although he did not consult with anyone at the City before sending them. The "we" referred to at the end of the emails was the city council. Siegel sent the emails because he felt he was stepping up to be the person who "gets in the ring" with Martin and "take the punches" being thrown at the City. At trial, Siegel conceded sending the emails was "not my proudest moment" and the statements contained in them had no basis in fact.

In response to Siegel's emails, the city council held a closed session to discuss them with the city attorney under the agenda heading "Potential Litigation." No action was taken as a result of the closed session. The City never sent a letter to Martin stating Siegel did not have the authority to send the emails in his capacity as mayor.

The Lemoore Community Foundation

Martin, along with Jay Salyer, the economic development manager for Kings County Economic Development Corporation, and former city manager, Jeff Briltz, had been involved in efforts to incorporate a private nonprofit entity called the Lemoore Community Foundation. The foundation was to be funded through a perpetual assessment equivalent to a small percentage of a home's sales price each time a home within a development was sold, which the foundation would use for various community projects and organizations.

The idea for this arrangement was generated by a real estate developer whose company was expanding into Lemoore and had established a similar foundation in Clovis, which was funded by such an assessment. After the real estate developer mentioned the arrangement during a presentation to the city council, Laws was directed to investigate its legality. Following a short investigation, the city council authorized Laws and Siegel, in his capacity as mayor, to ask the Kings County District Attorney's office to conduct an independent investigation of Martin, Briltz and Salyer. While Laws had no idea if a crime had been committed, he was suspicious of the arrangement. Siegel felt "there was a crime committed," and submitted a statement to the district attorney thatMartin had committed a crime, although he did not know its nature. Siegel hoped Martin would be criminally prosecuted, as he believed Martin and the others were trying "to take advantage of our community ... and not go through the channels of the city council."

Eventually Laws and Siegel were told these types of foundations were legal, which was reported to the city council. In March 2014, Gordon posted on his personal Facebook page that the district attorney's office "has decided not to prosecute Jeff Bri[l]tz (our former City Manager) and Ed Martin (our former Mayor and Councilman for 18 years) for embezzlement." Ultimately, the foundation was never formed.

The Ratification Instruction

Martin sued Siegel and the City for defamation per se based on the statements Siegel made in his September 2013 emails. The case proceeded to a jury trial. During Martin's direct examination, his attorney asked him whether he received a letter of apology from either the City or Siegel as the City's mayor. The trial court sustained relevance objections from the City's attorney.

After the trial court adjourned the jury for the day, a discussion was held concerning the relevance of these questions. Martin's attorney argued they were relevant to the theory of ratification. Martin's attorney requested a jury instruction stating if "[y]ou have an obligation to disavow" and fail to do so, the jury can decide whether that constituted ratification, and here the City failed to issue an apology for...