Opinion
Case No. 20030981-CA.
Filed May 5, 2005. (Not For Official Publication).
Appeal from the Third District, Salt Lake Department 030912398, The Honorable Glenn K. Iwasaki.
Barbara Schwarz, Salt Lake City, Appellant Pro Se.
Michael Patrick O'Brien, Salt Lake City, for Appellees
Before Judges Billings, Davis, and Jackson.
MEMORANDUM DECISION
"We have determined that `[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument.' Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law." West Valley City v. Foy, 2004 UT App 335, ¶ 1, 100 P.3d 275 (mem.).
Plaintiff argues that an article published about her (the article) by Defendants constituted defamation, libel, and false light invasion of privacy. After reviewing the content of the article and the undisputed information contained in the record, we conclude that the article could not, and does not, support any of Plaintiff's claims. First, the article is covered by the neutral reportage privilege because it contains "accurate and disinterested reporting" of the information contained in the record. Edwards v. National Audubon Soc'y, 556 F.2d 113, 120 (2d Cir. 1977). Further, we believe that "[t]he public interest in being fully informed about controversies that often rage around sensitive issues demands that the press be afforded the freedom to report such charges without assuming responsibility for them." Id. Second, the article is also covered by the fair comment privilege. See West v. Thomson Newspapers, 872 P.2d 999, 1013 (Utah 1994) (stating that the fair comment privilege applies to statements that "involve a matter of public concern, [are] based on true or privileged facts, and represent the actual opinion of the speaker, but [are] not made for the sole purpose of causing harm" (quotations and citation omitted)). Plaintiff's arguments about the accuracy of the article center around several opinions contained within the article. In our view, these opinions were accurately reported and fall under the fair comment privilege. See id.
Plaintiff also argues that the article and the use of her photograph in the article constituted abuse of her personal identity, a copyright violation, theft by deception, fraud, and breach of contract. All of these claims are without merit. First, the record clearly demonstrates that Plaintiff consented to the use of her photograph in the article. As such, her claim for abuse of her personal identity must fail. See Utah Code Ann. § 45-3-3(1)(b) (Supp. 2004) (requiring lack of consent as an element for abuse of personal identity). Second, because Plaintiff has not demonstrated that she possesses the copyright to the photograph used in the article, her copyright claim fails. Third, Plaintiff supports her claim for theft by deception by citing to several criminal code provisions. When statutory provisions, such as those cited by Plaintiff, contain only criminal penalties and do not create a private right of action, we generally will not create such a private right of action.See, e.g., Milliner v. Elmer Fox Co., 529 P.2d 806, 808 (Utah 1974); Broadbent v. Board of Educ., 910 P.2d 1274, 1278 (Utah Ct.App. 1996); Richards Irrigation Co. v. Karren, 880 P.2d 6, 11 (Utah Ct.App. 1994). Accordingly, Plaintiff's private right of action based upon the crime of theft by deception fails. Finally, although Plaintiff makes bald assertions that Defendants engaged in fraudulent behavior and breached a contract they had with her, she has not pointed to any record evidence to establish the existence of any fraud or any valid, binding contract she has entered into with Defendants. Therefore, her claims for fraud and breach of contract fail.
Plaintiff next argues that Defendants are somehow liable to her for failing to include certain information in the article, print a retraction or correction of the article, and print her letter to the editor. These claims also fail. Plaintiff's claim concerning the omission of certain information from the article is not actionable. See, e.g., World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 258 n. 8 (Utah 1994) (stating that "a newspaper's exercise of editorial control and judgment is a constitutionally protected process"). Further, because we conclude that the article did not constitute defamation, libel, or false light invasion of privacy, Defendants were under no obligation to print a retraction or correction.
Plaintiff further argues that she was unconstitutionally denied the right to a jury trial and that she is entitled to damages. Because we conclude that all of Plaintiff's claims are without merit, none of her claims could possibly proceed to trial. Accordingly, she does not have a right to a jury trial on any of these claims. In addition, it is axiomatic that Plaintiff is not entitled to damages, given our conclusion that all of her claims are meritless.
Finally, Plaintiff presents several arguments concerning the trial judges that handled her case below. Plaintiff argues that Judge Iwasaki "ignored" her motion for a transcript and that his order granting Defendants' motion for summary judgment was an abuse of discretion because it did not contain citation to any legal authority; Judge Barrett abused his discretion by denying Plaintiff's motion to disqualify Judge Iwasaki; and the trial judges engaged in ex parte communication with Defendants, were biased against her, and are guilty of conspiracy with Defendants. Again, all of these claims are without merit. First, Plaintiff's claim that Judge Iwasaki "ignored" her motion for a transcript is confusing, particularly considering that we have before us the full record of the proceedings below, including a transcript of the motion hearing. Second, although Plaintiff is correct in asserting that Judge Iwasaki did not cite any legal authority in his order granting Defendants' motion for summary judgment, he did state that he was granting the motion "for the reasons stated in the documents filed by Defendants in support of" their motion for summary judgment, thereby incorporating into the order all of the legal analysis and authority cited by Defendants in the documents supporting their motion. Third, when Plaintiff filed her motion to disqualify Judge Iwasaki, she failed to file a good faith certificate and supporting affidavit as required by rule 63 of the Utah Rules of Civil Procedure. See Utah R. Civ. P. 63(b)(1)(A). In addition, her motion failed to state a legally sufficient reason for disqualifying Judge Iwasaki, and she has failed on appeal to provide a legally sufficient reason for doing so. See id. Finally, her arguments concerning the trial judges' ex parte communication with Defendants, bias against her, and participation in a conspiracy with Defendants are all based upon her bald assertions that find no support in the record.
For the foregoing reasons, we affirm the trial court's grant of Defendants' motion for summary judgment and dismissal with prejudice of Plaintiff's claims against Defendants.
Plaintiff argues that summary judgment was inappropriate because she had established a prima facie case for defamation, libel, and/or false light invasion of privacy. Because we have concluded that these claims are without merit, we conclude that summary judgment was appropriate. See Utah R. Civ. P. 56(c) (stating that summary judgment is appropriate when "the moving party is entitled to a judgment as a matter of law").
Plaintiff also argues that her constitutional rights were "violated and denied" by Defendants. However, Plaintiff's argument fails to identify any cognizable constitutional claim or demonstrate how Defendants violated any of her constitutional rights.
WE CONCUR: Judith M. Billings, Presiding Judge, Norman H. Jackson, Judge.