Filed 11/27/19 Martin v. City of Lemoore CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

ED MARTIN,

Plaintiff and Respondent,

v.

CITY OF LEMOORE,

Defendant and Appellant.

F076216

(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), 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 BACKGROUND

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’s 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. 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]his is 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 was sending 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 that Martin 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 Siegel’s emails. The City’s attorney responded the cases he looked at involved situations whether an ostensible agent entered into a relationship on the principal’s behalf, which a third party relied on, and once the principal found out about the relationship, it had an affirmative obligation to disavow, but that those facts were not present here. The trial court asked the parties to brief the issue.

The City argued in its brief that it was not obligated to disavow Siegel’s actions. The City asserted ratification generally applied to protect an innocent third party who dealt with an agent with apparent or ostensible authority, and to preserve the innocent third party’s rights, the principal is required to disavow the transaction immediately after becoming aware of it, citing Pacific Vinegar & Pickle Works v. Smith (1907) 152 Cal. 507, 511 and Gates v. Bank of America (1953) 120 Cal.App.2d 571, 576‒577 (Gates). The City claimed that did not apply here, as Martin was not seeking to protect the rights that arise when an agent has taken advantage of his apparent or ostensible agency relationship with the City, but rather he was seeking to impose vicarious liability on the City’s failure to disavow Siegel’s conduct. The City asked the court not to allow any questioning, argument or instruction suggesting it had a duty to disavow Siegel’s actions or that the failure to do so established ratification by the City.

In his brief, Martin argued the City ratified Siegel’s conduct by failing to disavow it. Relying on Rakestraw v. Rodrigues (1972) 8 Cal.3d 67 (Rakestraw) and McChristian v. Popkin (1946) 75 Cal.App.2d 249 (McChristian), Martin argued a principal is liable when it ratifies an originally unauthorized tort, and here the City knew about the emails, yet failed to take any action to disavow them or apologize, thereby ratifying them. Martin asked the court to instruct the jury on ratification with CACI No. 3710. Martin claimed the instruction was supported by evidence that: (1) in sending the emails, Siegel purported to act on the City’s behalf; (2) the City subsequently learned of Siegel’s conduct and the material facts involved in the unauthorized transaction; and (3) the City approved Siegel’s conduct when it took no action to disavow the emails.

The trial court gave its ruling on the issue of ratification the following day and accepted Martin’s proposed jury instruction on ratification, CACI No. 3710. The trial court explained “[t]he instruction is based on a well-recognized theory that ratification can be found if an agent’s conduct is accepted by the principal as their own true words and conduct,” citing Rakestraw, and “[f]ailure to disavow the emails by expressing that the city had not authorized them and did not approve of them can reasonably be viewed as a failure to redress their harm which is conduct that may be considered by the trier of fact on the issue of ratification,” citing McChristian.

The City’s attorney wanted to make clear the City’s position on this issue, asserting that, as argued in the City’s points and authorities, the trial court’s analysis was “correct in so far as the rights of a third party being … impinged upon or being affected,” but it was not “correct in a case such as this where that is not the case.” The City’s attorney added that all of the cases the trial court cited involved a principal’s actions upon which a third party relied, but that was not the situation in the present case.

The trial court instructed the jury with CACI No. 3710 as follows: “Ed Martin claims the City of Lemoore is responsible for the harm caused by William Siegel’s conduct because City of Lemoore approved that conduct after it occurred. If you find that William Siegel harmed Ed Martin, you must decide whether City of Lemoore approved that conduct. To establish this claim, Ed Martin must prove all the following: [¶] 1. That William Siegel, although not authorized to do so, purported to act on behalf of City of Lemoore. [¶] 2. That City of Lemoore learned of William Siegel’s unauthorized conduct and all of the material facts involved in the unauthorized transaction after it occurred; and [¶] 3. The City of Lemoore then approved William Siegel’s conduct. [¶] Approval can be shown through words or it can be inferred from a person’s conduct. Approval can be inferred if City of Lemoore voluntarily keeps the benefits of William Siegel’s unauthorized conduct after they learn of it.”

The Jury’s Verdict

During deliberations, the jury sent a note asking for the definition of the term “ratify” as used in the special verdict form. The trial court stated its intention to send the jury the following written response: “The jury instruction that defines the term ‘ratification’ is contained in jury instruction number 3710.” The attorneys all stated they had no objection to sending the written response.

The jury returned a special verdict finding that Siegel made the statements in the emails to persons other than Martin, who understood them to be about Martin and to mean he had “homosexual tendencies,” “infatuation with young boys” and “self-termination,” and the statements were false and Siegel either knew they were false or had serious doubts about their truth. The jury found Siegel was not acting within the scope of his duties as mayor when he made the statements, but that the City ratified his acts. As to damages, the jury found Siegel’s conduct was a substantial factor in causing Martin actual harm, and awarded Martin $7,500 for “shame, mortification, or hurt feelings,” and $2,500 for emotional distress. The jury also found Siegel acted with malice, oppression or fraud, and awarded Martin $5,000 in punitive damages against Siegel. Judgment subsequently was entered against Siegel and the City for $10,000, and against Siegel for an additional $5,000.

DISCUSSION

The City contends the trial court erred by instructing the jury on ratification with CACI No. 3710 because Martin did not meet the requirements for its use. Specifically, the City maintains the evidence did not support the instruction because it did not have a duty to affirmatively disavow Siegel’s unauthorized act and its silence reasonably can be explained by a desire to avoid admitting wrongdoing by its agent.

Standard of Review

“We review de novo the question of whether the trial court’s instructions to the jury were correct.” (Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 526.) “A party is entitled upon request to correct, nonargumentative instructions on every theory of the case advanced by him which is supported by substantial evidence. The trial court may not force the litigant to rely on abstract generalities, but must instruct in specific terms that relate the party’s theory to the particular case.” (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572 (Soule).) Thus, when a proposed instruction correctly states the law, and there is evidence to support it, a trial court commits error if it refuses to give it. (Id. at pp. 573-574.)

However, “there is no rule of automatic reversal or ‘inherent’ prejudice applicable to any category of civil instructional error, whether of commission or omission. A judgment may not be reversed for instructional error in a civil case ‘unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’ ” (Soule, supra, 8 Cal.4th at p. 580; see Cal. Const., art VI, § 13.) In evaluating whether instructional error is prejudicial, we consider “(1) the state of the evidence, (2) the effect of other instructions, (3) the effect of counsel’s arguments, and (4) any indications by the jury itself that it was misled.” (Soule, at pp. 580‒581, fn. omitted; see Logacz v. Limansky (1999) 71 Cal.App.4th 1149, 1156.)

Substantial Evidence Supported Giving the Ratification Instruction

The City does not contend that CACI No. 3710 as given was an incorrect statement of the law. Instead, the question presented here is only whether, viewing the evidence in the light most favorable to Martin, there were facts on which the jury could conclude the doctrine of ratification applied. Essentially, the City contends there was insufficient evidence from which the jury could conclude it approved Siegel’s conduct.

Here, the jury was instructed that Siegel was the City’s employee. The jury was further instructed, pursuant to CACI No. 3710, that if it found Siegel harmed Martin, it must decide whether the City approved Siegel’s conduct, and to establish the claim, Martin must prove: (1) Siegel, although not authorized to do so, purported to act on the City’s behalf; (2) the City learned of Siegel’s unauthorized conduct, and the material facts involved in the unauthorized transaction, after it occurred; and (3) the City then approved the conduct. The jury further was instructed that approval could be shown through words or inferred from a person’s conduct.

“An employer may be liable for an employee’s willful and malicious actions under the principles of ratification. [Citations.] An employee’s actions may be ratified after the fact by the employer’s voluntary election to adopt the employee’s conduct by, in essence, treating the conduct as its own.” (Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 810; see Rakestraw, supra, 8 Cal.3d at p. 73; Civ. Code, § 2339.) Thus, an employer may be liable when, after knowledge of the wrongdoer’s originally unauthorized tort, the employer ratifies such conduct. (Herrick v. Quality Hotels, Inns & Resorts, Inc. (1993) 19 Cal.App.4th 1608, 1618.)

Ratification may occur expressly or by implication “based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is ‘inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.’ ” (Rakestraw, supra, 8 Cal.3d at p. 73.) “ ‘[R]atification may be proved by circumstantial as well as direct evidence. Anything which convincingly shows the intention of the principal to adopt or approve the act in question is sufficient. [Citation.] It may also be shown by implication[,] “ ‘… where an agent is authorized to do an act, and he transcends his authority, it is the duty of the principal to repudiate the act as soon as he is fully informed of what has been thus done in his name, … else he will be bound by the act as having ratified it by implication.’ ” ’ ” (StreetScenes v. ITC Entertainment Group, Inc. (2002) 103 Cal.App.4th 233, 242.)

“ ‘The failure to discharge an employee who has committed misconduct may be evidence of ratification. [Citation.] The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery. [Citations.] Whether an employer has ratified an employee’s conduct is generally a factual question.’ ” (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th 1094, 1110; see McChristian, supra, 75 Cal.App.2d at pp. 256‒257 [theater owners ratified theater security guard’s assault of patron where they had ample opportunity to learn of the assault, yet continued to employ him “without making investigation or attempting to redress the wrong claimed to have been done”]; Edmunds v. Atchison etc. Ry. Co. (1917) 174 Cal. 246, 249 [principal may ratify agent’s misconduct by “continuing the wrongdoer in his service after knowledge or opportunity to learn of the misconduct”].)

These principles were applied in Jameson v. Gavett (1937) 22 Cal.App.2d 646. There, an employer disputed its vicarious liability for injuries a trespasser on the employer’s premises, who was a young boy, sustained when an employee threw stones at him to chase him away. In affirming judgment in the boy’s favor after a bench trial, the appellate court concluded there was sufficient evidence the employee was acting within the course and scope of his employment. (Id. at p. 651.) The court, however, also concluded the undisputed evidence the employer discussed the matter with the employee the day after the incident, and thereafter expressed no disapproval of the act and continued to retain the employee, “was ample to warrant the trial court in concluding that appellants had by their acts and conduct and with full knowledge of the surrounding circumstances ratified the act which produced the injuries. It is settled that approval and ratification by the master with full knowledge of the surrounding circumstances may fix liability upon the master for an act of the servant which was outside the scope of employment.” (Id. at pp. 651‒652.)

The evidence amply supported this theory of ratification. Siegel, the City’s employee, purported to act on the City’s behalf when he sent the emails, as shown by identifying himself in the emails as “Mayor” of “City of Lemoore.” The City’s knowledge of Siegel’s unauthorized conduct may be inferred from the closed session held in response to the emails, at which the city council discussed potential litigation with the city attorney. Finally, the City’s approval of Siegel’s conduct may be inferred from the City’s subsequent failure to take any action to repudiate his conduct, such as by notifying Martin that the City had not authorized Siegel’s emails and did not approve of them, despite having reviewed the matter in closed session.

Relying on Gates, supra, 120 Cal.App.2d 571, the City contends a principal has a duty to disavow its agent’s unauthorized actions “only if the rights of a third party are involved.” But that is not what Gates holds. In Gates, judgment was entered in favor of a depositor who sued his bank for paying unauthorized drafts on his account. The bank argued on appeal the evidence established the depositor ratified its payment of the drafts as a matter of law, which could be implied from evidence that after learning of the payments, the depositor executed a promissory note to the bank and repaid it. (Id. at pp. 575‒576.)

The court cited the principle that “ ‘for purposes of ratification there must be “confirmatory conduct, or at least conduct inconsistent with disapproval. Facts are not to be stretched, or ambiguous, inconclusive or independent acts made the basis of a ratification.” ’ ” (Gates, supra, 120 Cal.App.2d at p. 576.) Noting that the depositor objected to the withdrawals from his account, the court could not say the depositor’s acts of borrowing from the bank so he could restore the account to its previous balance, and subsequently repaying the loan, were consistent only with approval of the bank’s unauthorized act. (Ibid.)

The court then noted the cases the bank cited where ratification was implied involved “the rights of some innocent third party who had dealt with the purported agent involved.” (Gates, supra, 120 Cal.App.2d at p. 576.) While there was no question that “where the rights of third persons depend on his election, the rule is a principal must disaffirm an unauthorized act of his agent within a reasonable time after acquiring knowledge thereof, else his silence may be deemed ratification or acquiescence in order to protect an unsuspecting third party,” the reasons for that rule did not apply in favor of an agent who committed an unauthorized act. (Id. at pp. 576‒577.) The court concluded that “where the rights and obligations of third parties are not involved, and the controversy relates solely to whether a principal has exonerated the admittedly unauthorized act of his agent by ratification implied from conduct, such intention to confirm should rest on unequivocal evidence, and must be manifested by acts inconsistent with any other hypothesis.” (Id. at p. 577.) The court determined it was clear nothing in the depositor’s statements or conduct required it to find, as a matter of law, that he impliedly ratified the bank’s admittedly unauthorized acts in charging the drafts to his account. (Ibid.)

Here, the issue is not whether a principal (City) has exonerated an agent’s (Siegel’s) unauthorized act. Instead, this case involves the rights of an innocent third person (Martin) and whether the City is liable to him for Siegel’s unauthorized defamatory statements by ratification implied from the City’s failure to advise Martin that the statements were not made on its behalf. Under the principles stated in McChristian, Edmunds and Jameson, the City, after learning of Siegel’s statements, had a duty to disavow them.

The City also contends that because ratification can only be implied by conduct that is inconsistent with any other hypothesis, the evidence did not support giving the instruction as its silence has an explanation other than showing approval of Siegel’s conduct. Specifically, the City argues its “silence in the face of Siegel’s email cannot be explained solely by an intent to ratify Siegel’s conduct,” as it may have chosen not to issue an apology for Siegel’s email because “an admission that the City’s agent acted wrongfully” would be inconsistent with its position that Siegel was not acting as the City’s agent when he sent the email.

The City’s silence, however, was “ ‘inconsistent with disapproval,’ ” and therefore constituted evidence of ratification. (Gates, supra, 120 Cal.App.2d at p. 576.) Contrary to the City’s assertion, it was not required to admit Siegel acted wrongfully in order to avoid a finding of ratification. Instead, the City need only have disavowed the emails by stating they were not sent on its behalf and Siegel did not have the authority to send them. The failure to do so is “inconsistent with any other hypothesis.” (Gates, at p. 577.)

Finally, the City argues it could only ratify Siegel’s conduct by a vote of the city council; therefore, its inaction following Siegel’s unauthorized act is insufficient to support a finding of ratification. The City claims there was ample testimony at trial that it authorized official conduct through its city council, which required a majority vote to approve any action, and “[e]ven though Martin conceded Siegel’s actions were not authorized by the city council, the court allowed an instruction on ratification based on the City’s failure to disavow Siegel’s actions. This constituted reversible error.”

The City, however, never raised this argument below. It did not request a jury instruction on the issue or assert this theory at any point in the trial court. Having failed to raise the argument below, the City has forfeited it on appeal. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [appellate courts ordinarily do not consider claims for the first time on appeal which could have been but were not presented to the trial court].) “ ‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack. [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.’ ” (Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830.)

In sum, the City has failed to show that the trial court erred by instructing the jury with CACI No. 3710. Since there was substantial evidence to support instructing the jury on ratification, the trial court did not err.

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Martin.

SNAUFFER, J.

WE CONCUR:

PEÑA, Acting P.J.

MEEHAN, J.