Metropolitan News-Enterprise


Monday, April 14, 2008


Page 1


Court Rules Statements Sent Via Fax Not ‘Publications’


By STEVEN M. ELLIS, Staff Writer


A language school which accused an attorney of misconduct in a report to a government agency did not “publish” defamatory statements in the report when it sent copies by fax to numbers maintained by the attorney that were read by a third party, this district’s Court of Appeal ruled Friday.

In a partially published opinion affirming the judgment of Los Angeles Superior Court Judge John L. Segal, Div. One ruled that faxes International House USA sent to Marie Rosa Martinelli’s law office and to the office of an insurance agency her family owned were not publications because the school had a reasonable belief that Martinelli expected to receive communications from the school at the insurance agency’s fax number, and because Martinelli, in providing fax numbers to the school, undertook a burden to protect her own confidentiality.

Martinelli’s niece, an Italian national named Louisa Fossati, came to the United States in March 2005 on a student visa that prohibited her from working in the country except under limited circumstances. Martinelli enrolled Fossati in an English language program at International House, and Fossati resided with Martinelli while she attended classes.

However, in July 2005 International House sent a report to U.S. Immigration and Customs Enforcement stating that it had terminated Fossati as a student because she accepted employment in violation of the terms of her visa, and accusing Martinelli of asking the school the ignore immigration regulations.

A few days later, the school faxed a copy of the report to an insurance agency owned by Martinelli’s family. The fax was addressed to Martinelli’s daughter, Monique Palmieri, who read the report.

In October 2005, Martinelli wrote a letter to the school on her office letterhead regarding Fossati’s immigration status and her status at the school, and disputing the school’s allegations.

The school responded in a letter addressed to Martinelli, and faxed the letter and a second copy of the report to the telephone number on the letterhead. Palmieri similarly read the letter after picking it up from the office fax machine.

Martinelli brought an action against the school and its executive director alleging causes of action for libel, slander, infliction of emotional distress and invasion of privacy. Citing the faxed reports, she also alleged that school employees had told her niece that Martinelli wanted her to fail, had no interest in her well-being, and was counseling her to ignore and break the law.

The trial court sustained the school’s demurrers to the latter two causes of action based on the “single publication” rule, which limits the victim of defamation to only one cause of action for the publication of a defamatory statement in a particular book, newspaper or the like, and granted the school summary adjudication on Martinelli’s defamation claims.

On appeal, Justice Frances Rothschild wrote for the court and concluded in an unpublished portion of the opinion that Segal had correctly applied the single publication rule.

She also opined that the trial court had correctly dismissed Martinelli’s claims regarding the school employees’ alleged statements to her niece because they were not provably false assertions of fact and constituted non-actionable opinion, and that the school’s statements about Martinelli in its report to ICE were absolutely privileged under Civil Code Sec. 47—which protects statements made in connection with a proceeding authorized by law—because they were designed to prompt action by the agency.

In the published portion of the opinion, Rothschild rejected Martinelli’s allegations that the statements in the report were published when they were sent to general fax machines and read by her daughter.

Examining the fax to Martinelli’s law office first, Rothschild concluded that it was not published because Martinelli, in sending correspondence to the school on her office letterhead, had invited a response to the fax number set forth therein and thereby undertook a burden to protect her own confidentiality.

Opining that Martinelli had undertaken the burden in inviting correspondence to that fax number, Rothschild wrote that “[i]t would be unreasonable to place a duty on International House to determine who had access to Martinelli’s fax machine in order to shield itself from liability.”

She then examined the fax addressed to Martinelli’s daughter at the insurance agency, and arrived at a similar conclusion.

She wrote:

“Martinelli’s niece, Fossati, gave International House the insurance agency’s fax number as a means of communicating with Martinelli on issues pertaining to her studies at International House and her immigration status.

“International House knew from previous contacts with Martinelli that she was deeply interested and involved in those issues. It sent the fax to Palmieri’s attention because Fossati told International House employees that Palmieri ‘was responsible for the daily activities in Martinelli’s office and worked closely with her mother’ and because it knew Martinelli would not be in the office that day.

“Under these facts, International House could reasonably believe, based on Fossati’s statements and Martinelli’s previous involvement in Fossati’s relations with International House, that Martinelli expected the insurance agency fax number to be used for communications regarding Fossati and that sending the fax to the attention of Martinelli’s daughter, Palmieri, was equivalent to sending the fax to Martinelli.

Justice Robert M. Mallano and Los Angeles Superior Court Judge Frank Jackson, sitting by assignment, joined Rothschild in her opinion.

International House’s counsel, David Boren of Wyman & Isaacs LLP in Beverly Hills, told the MetNews that the court “got it exactly right,” and said that the case “never should have been filed in the first place.”

Martinelli’s counsel, Van Nuys attorney Russell F. Behjatnia, was not available for comment.

The case is Martinelli v. International House USA,  B197536.


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