# Kapellas v. Kofman

> California Supreme Court · October 24, 1969 · 1 Cal. 3d 20

URL: https://www.frixlaw.com/law-library/cases/9792361

## Case

- **Full name:** RICHARD DALE KAPELLAS, a Minor, Etc., Et Al., Plaintiffs and Appellants, v. ABRAHAM KOFMAN, Defendant and Respondent
- **Court:** California Supreme Court
- **Decided:** October 24, 1969
- **Citations:** 1 Cal. 3d 20; 81 Cal. Rptr. 360; 459 P.2d 912; 1969 Cal. LEXIS 189
- **Precedential status:** Published
- **Opinion:** Concurrence by Burke
- **Judges:** Tobriner, Burke
- **Cited by:** 109 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9792361

## Opinion text

BURKE, J.
I concur in the opinion to the extent it holds that the third count fails to state a cause of action for breach of privacy. I disagree, however, with the- conclusion that the first and second counts are sufficient to state causes of action for libel.
Since the third amended complaint seeks general and exemplary damages under two separate libel counts, one on behalf of Mrs. Kapellas, and one on behalf of her children, both counts must allege compliance with section 48a of the Civil Code, which requires written demand for retraction and proof of actual malice.
Although the demand for retraction may have been sufficient to support the children’s count, the opinion errs in assuming that Mrs. Kapellas therefore is entitled to maintain her own action “even in the face of non-specific additional requests in her notice.” (Ante, p. 32.)
The demand for retraction was inadequate with respect to Mrs. Kapellas’ libel count, for section 48a, subdivision 1, requires “a written notice specifying the statements claimed to be libelous and demanding that the same be corrected.” (Italics added.) The word “specify” is defined as “To mention or name in a specific or explicit manner; to tell or state precisely or in detail. . . .” (Webster’s New Internat. Dict. (2d ed.) at p. 2415.) Where the libel is alleged to consist solely of implications, plaintiff should specify the exact statements from which these implications arise.
Mrs. Kapellas’ demand did not request retraction of “implications” but referred to “every statement concerning Mrs. Kapellas’ qualifications for the City Council and her suitability as a mother.” (Italics added.) This language was clearly insufficient, for as the opinion points out, “The *40 editorials do not explicitly state that Mrs. Kapellas is not qualified for the city council or that she is an unsuitable mother. ...” (Ante, p. 33.)
With respect to the sufficiency of the allegations of actual malice, no facts are alleged which would support a finding that defendant acted with “hatred or ill will” toward the Kapellas children. (Civ. Code, § 48a, subd. 4(d).) Although the opinion correctly holds that Mrs. Kapellas sufficiently alleged facts disclosing actual malice toward her, those allegations would not support her children’s libel count.
I would conclude that the first count is insufficient because of the inadequacy of the notice of retraction, and that the second count is insufficient, as to exemplary damages, because it fails to allege facts disclosing actual malice.
McComb, J., and Mosk, J., concurred.
Respondent’s petition for a rehearing was denied November 19, 1969, and the opinion was modified to read as printed above. Mosk, J., and'Burke, J., were of the opinion that the petition should be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9792361. Public record. Not legal advice.