Petition — Weingarten v. Block

Supreme Court brief1980

Ask Donna

What actually matters in this document.

Text

FILE

JUL 9 (980

ROOAK, JR. CLERI

80-35 ern.

No.

IN THE

Supreme Court of the United States

October Term 1979

SAUL M. WEINGARTEN,

Petitioner,

vs.

PAUL BLOCK, MONTEREY PENINSULA HERALD Co., a Cal-

ifornia Corporation, TOLEDO BLADE COMPANY, an Ohio

Corporation, RICHARD B. GIFFORD and MILTON JAQUES,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of the United States.

JACQUE BOYLE,

707 Wilshire Blvd., Suite 4670,

Los Angeles, Calif. 90017,

(213) 622-7116,

Attorney for Petitioner.

Parker & Son, Inc., Law Printers, Los Angeles. Phone 724-6622

No.

IN THE

Supreme Court of the United States

October Term 1979

SAUL M. WEINGARTEN,

Petitioner,

vS.

PAUL BLOCK, MONTEREY PENINSULA HERALD Co., a Cal-

ifornia Corporation, TOLEDO BLADE COMPANY, an Ohio

Corporation, RICHARD B. GIFFORD and MILTON JAQUES,

Respondents.

Petition for a Writ of Certiorari to the

Supreme Court of the United States.

Questions Presented for Review.

This case involves the application of the privilege defined

by this Honorable Court in New York Times v. Sullivan

(1964) 376 U.S. 254, and Curtis v. Butts, (1967) 388 U.S.

130, to a State libel case, and petitioner seeks review of the

lower and appellate Courts’ determination of his status as

a public official and public figure.

Petitioner will further ask review of the trial Court‘s Judg-

ment of non-suit, granted on its interpretation of that priv-

ilege, and its affirmation by the appellate Court, in the event

this Honorable Court holds that petitioner was either a public

official or public figure.

Thus, the following issues are here presented:

I.

Petitioner’s Status.

1. Whether petitioner’s legal services as the part-time

City Attorney for the City of Seaside, California, warranted

imposition of the status of public official, where such service

had terminated a year before the publication in question;

2. Whether petitioner’s legal services for the Redevel-

opment Agency of Seaside warranted the imposition of the

status of public official, where petitioner was but one of

several attorneys performing such services, where the ser-

vices were on a project basis, and where such services were

obscure;

3. Whether petitioner became a public figure, where

there was no evidence of his pervasive power and influence,

and where the only public controversy involved was one

contrived by defendants into which petitioner neither thrust

himself nor was involuntarily drawn.

4. Whether the trial Court erred in denying petitioner

a trial by jury on the issue of status, and in separately trying

that issue.

II.

Petitioner’s Non-Suit Burden on Issue of Malice, if a

Public Official or Public Figure.

1. Whether trial and appellate Courts applied the proper

test to a motion for non-suit in a political libel case;

2. Whether defendants’ motives and methods of inves-

tigation and reporting, were relevant to the issue of Actual

Malice;

3. Whether the evidence established defendants’ knowl-

edge of falsity, sufficient to withstand their motion for

non-suit, where defendants fabricated, and inaccurately

described, petitioner’s conduct.

4. Whether the evidence established defendants’ reck-

less disregard for the truth, sufficient to withstand their

motion for non-suit, where defendants relied upon uncon-

firmed rumor, and opinions of persons known to harbor

resentment to petitioner, for their defamatory article.

iV

TABLE OF CONTENTS

Page

Questions Presented for Review ...............45. i

I.

gg SE SAP ee ee ii

I.

Petitioner’s Non-Suit Burden on Issue of Malice, if a

Public Official or Public Figure...............

Judgment and Opinion Below ................005.

a EES ah Cn A

Constitutional Provisions Involved ................

First Amendment to the United States Constitution

a oe Oe oe eos 2 eo} FP ee ee se 2. So 6 2 Oe oe 8 Bre. 6. 8 4.0 8 oe

ee el ee aul be ome

1. Petitioner’s Legal Services as the Part-Time

City Attorney for the City of Seaside, Califor-

nia, Did Not Warrant Imposition of the Status

of Public Official to Petitioner, in This Case .

2. Petitioner’s Legal Services for the Redevelop-

ment Agency of Seaside Did Not Warrant the

Imposition of the Status of Public Official to

PG OD BOE IE sc sip ndeesveeces ss

3. Petitioner Not a Public Figure ............

4. The Trial Court Erred in Denying Petitioner a

Trial by Jury on the Issue of Status, and in

Separately Trying That Issue..............

10

10

Page

II.

Standard for Review of Procedure and Evidence ... 16

Ill.

Petitioner’s Non-Suit Burden on the Issue of Malice, if

a Public Official or Public Figure............. 16

1. The Trial and Appellate Court Did Not Apply

the Proper Test to Defendants’ Motion for

PURI NS HR Te CRS oo vi ciesnes accesses 16

2. Defendants’ Motives and Methods of Investiga-

tion and Reporting Defined Defendants’ Actual

Malice

A. Defendants’ Motive and Purpose ....... 19

B. Method of Investigation and Reporting .. 21

3. The Evidence Established Defendants’ Knowl-

edge of Falsity, Sufficient to Withstand Their

ee re ree eer 23

4. The Evidence Established Defendants’ Reckless

Disregard for the Truth, Sufficient to Withstand

Their Motion for Non-Suit ................ 24

II so. nie'4 Ktiiewdss eek s bbadeua peed eek en 26

INDEX TO APPENDICES

Co ee eee App. p. |

Appendix B. Findings of Fact and Conclusions of

BO. ck way ncn k caked +6008 se eens ee es 2

Appendix C. Opinion of the Court of Appeal ....... 8

Appendix D. Order—Petition for Rehearing Is

RIUIEIEE oulesn'a. 04 ob hee Gs une Oi SIE enone 41

vi

TABLE OF AUTHORITIES

Cases Page

Adams v. Cameron, (1915) 150 P. 1005............ 16

Bon Air Hotel, Inc. v. Time, Inc. (Sth Cir. 1970) 426

ED & Sie ee NUE SS On ee Cave cena tb aenaes 17

Clas ¥, Bact tare, (1952) 9 P.20 SUS 2. cece ecs 16

Curtis Publishing Co. v. Butts, (1967) 338 U.S.

De ere be HAS ORE Oh op ok FARO ee eee i, Zea oe

David v. Schuchate, (D.C. Cir. 1975) 510 F.2d 531 .. 25

Gertz v. Welch, (1974) 418 U.S. 323........... 13, 14

Goldwater v. Ginzburg, (2nd Cir. 1969) 414 F.2d 324

Lae eee SED Rats ROSS sad ne Kaew Bae 20, 23

Good Government Group of Seal Beach, Inc. v. Superior

Court, (1978) 22 Cal.3d 672, 150 Cal.Rptr. 258 ... 16

Guam Federation of Teachers v. Ysrael, (9th Cir. 1974)

492 F.2d 489, cert. den., 419 U.S. 872, 92 S.Ct. 132,

Oe EE BOE bees cn hp ds 6 obae ape 16, 17, 24, 25

Hotchner v. Castillo-Puche, (S.D.N.Y. 1975) 404

NE ea SNe 5 eS AER VS wi wo 8 de db a, a

Hutchinson v. Proxmire, (1979) 61 L.Ed.2d 411..... 15

Montandon v. Triangle Publishing, Inc., (1975) 45

Cal.App.3d 938, 120 Cal.Rptr. 186 ............. 23

New York Times v. Sullivan, (1964) 376 U.S.

Means 5s goa i, 9,.10, 13, 14, 16, 18, 19, 20, 23, 26

Rosenblatt v. Baer, (1966) 383 U.S. 75 ............ 10

St. Amant v. Thompson, (1968) 390 U.S. 727....... 21

SU) EIR ar ne De OU rae oh aOR pe a 23, 24

Time, Inc. v. Firestone, (1976) 424 U.S. 448 ....... 14

Vandenberg v. Newsweek, Inc., (Sth Cir. 1975) 507 F.2d

So Rs ns oe aa Cade ky ee Cw end ha ald 25

Weingarten v. Block, et al., (1980) 102 Cal.App.3d 129,

EN UE kg Ps Ss 400 ks 6a ke SP one ROS l

Zeck v. Spiro, (1966) 52 Misc.2d 629, 276N.Y.S.2d395 11

Vil

Constitutions Page

California Constitution, Art. I, Sec. 7 .......ceeees 16

United States Constitution, First Amendment...... 1, 9

United States Constitution, Seventh Amendment ..... 16

United States Constitution, Fourteenth Amendment

Cae Ee Cae eke hae Re a eehea chee ee kee ee 2,9

Publication

Monterey Peninsula Herald, Sept. 9, 1971 .......... 3

Statute

United States Code, Title 28, Sec. 1257(3) ......... l

peer en

Judgment and Opinion Below.

The Judgment of non-suit here presented for review is

attached hereto as Appendix **A’’, and the Findings of Fact

and Conclusions of Law with respect thereto are further

attached hereto as Appendix ‘‘B’’. The Opinion of the Court

of Appeal, First Appellate District, affirming the trial

Court’s Judgment of non-suit is attached hereto as Appendix

‘“*C’’, and is reported as Weingarten v. Block, etal., (1980)

102 Cal.App.3d 129, 162 Cal.Rptr. 701. Petitioner’s Pe-

tition for Rehearing in said Court was denied without further

opinion, and said denial is attached hereto as Appendix

‘*D”’. Petitioner’s Petition for Hearing before the Supreme

Court of California was denied without opinion, and said

denial is attached hereto as Appendix ‘‘E’’.

Jurisdiction,

The Judgment of the lower Court was filed and entered

on January 18, 1977. The decision of the Court of Appeal

was entered on February 14, 1980. A timely Petition for

Rehearing was filed, and the same was denied on March

14, 1980. Petitioner’s Petition for Hearing before the Cal-

ifornia Supreme Court was denied on April 10, 1980, with-

out opinion. This Petition for Writ of Certiorari is filed

within ninetydays from said date. This Court’s jurisdiction

is invoked under 28 U.S.C., Section 1257(3).

Constitutional Provisions Involved.

First Amendment to the United States Constitution:

‘*Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise

thereof; or abridging the freedom of speech, or the

press; or the right of the people peaceably to assemble,

and to petition the Government for a redress of griev-

ances.””

a ae

Fourteenth Amendment to the United States Constitution:

**Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall abridge the privileges or immu-

nities of citizens of the United States; nor shall any

State deprive any person of life, liberty, or property,

without due process of law; nor deny to any person

within its jurisdiction the equal protection of the laws.”’

Statement of the Case.

Petitioner was admitted to the practice of law in California

in 1950. He moved to the Monterey Peninsula area in 1951

and opened his law office in Seaside in 1955. While always

in private practice, he served as attorney for the Cities of

Pacific Grove, Gonzales and Seaside, and further performed

legal services for the Redevelopment Agency of the City

of Seaside during the ensuing years.

His legal services for the City of Pacific Grove occurred

in 1954, and was for a period of approximately 3 to 6

months. He was the part-time City Attorney for the City of

Gonzales for almost 20 years, from 1954 to 1974. He was

the part-time City Attorney for the City of Seaside, from

1955 until October, 1970. And petitioner performed legal

services for the Redevelopment Agency of Seaside from

1963 until after the trial of his lawsuit. His services for the

Redevelopment Agency were on a project basis, and while

the Agency did retain petitioner during that period of time,

they also utilized the services of other attorneys on the same

terms.

Petitioner did not have a policy-making role in any of his

public positions. Rather, he eschewed participation in policy

decisions, in his representation of public entities.

In October, the City Council terminated petitioner’s ser-

‘iin

vices as Seaside’s City Attorney in the context of some

controversy. Nevertheless, the Council commended peti-

tioner and presented him with a plaque in appreciation for

his services.

At about this time, defendant BLOCK became interested

in the local politics of the Monterey Peninsula area. Al-

though his parent corporation, defendant TOLEDO BLADE

COMPANY had owned the Monterey Peninsula Herald

since 1966, he took active control of the paper in September

1970. He moved Charles W. Gilmore from his Eastern

operation and installed him as the editorial director of the

Monterey Peninsula Herald in September of 1970.

Shortly after petitioner’s termination as City Attorney of

the City of Seaside, a recall campaign was instituted to

recall four of Seaside’s City Councilmen. Petitioner briefly

represented one of the organizations involved in that recall,

in February, 1971. Defendants opposed the recall, but the

movement succeeded and the recall election was set for

June, 1971. Defendants supported the four City Councilmen

subject to recall. Nevertheless, three were recalled and re-

moved from office. Shortly thereafter, defendant BLOCK

assigned his ace investigative reporter, defendant JAQUES

to the Monterey Peninsula Herald for the purpose of inves-

tigating petitioner and writing an ‘‘expose’’ of the peti-

tioner’s personal and professional life.

Defendant JAQUES remained on his assignment from

August 1, through the first or second week in October of

1971, except for brief periods of time. Defendants’ first

defamatory article appeared in the Monterey Peninsula Her-

ald on September 9, 1971. Thereafter, subsequent articles

and editorials reiterated the same defamatory charges, or

further otherwise demeaned petitioner. The first article con-

tains the defamatory language of this case subject to review,

and that article is set forth in full as an exhibit to the Opinion

a es

of the Court of Appeal, attached hereto as Appendix **C”’

at pages C-27 to C-33. The second article appeared in

defendants’ newspaper after petitioner demanded retraction,

and is set forth in full as footnote 6 to the Opinion of the

Court of Appeal (Appendix ‘‘C’’ at page C-10).

The falsity of the defamatory matter, and defendants’

actual malice, are more particularly documented and dis-

cussed in the argument section of this Brief, but the sub-

stance of that article and the falsity of the most defamatory

portions here involved, are summarized as follows:

1. Dishonesty. Petitioner is charged with using his po-

sition as attorney for a closed corporation of his friends (all

of whom were Naval officers) to covertly draw $30,000.00

per year in legal and consultant fees. The article also states

that ‘‘some found him difficult to follow in business trans-

actions, particularly in his recollections of earlier verbal

agreements.’’ Both contentions were false. Petitioner’s

earnings from that Corporation during the nine years that

he was its legal counsel, were $4,500.00, or about five

hundred dollars per year, and he received nothing for his

services as an officer of that Corporation.

2. Racial Bias. The article states that Black residents

were ‘‘disturbed’’ by petitioner’s appearance in a civil rights

case, and that minority groups equated his stance as City

Attorney as requiring action ‘‘in their behalf instead of legal

opposition.’’ This charge was also false. The ostensible

basis of this accusation was a civil lawsuit, wherein peti-

tioner asserted the rights of the members of one minority

group (Oriental) in a suit by a member of another minority

group (Black). Further, the case was settled to the satis-

faction of the Black minority litigant, and petitioner had

been instrumental in negotiating that settlement. Petitioner

never, at any time, took any stance against any minority

group.

=e

3. Unprofessional conduct. The articles cites the trial

judge in the Parker case to the effect that he thought pe-

titioner had been guilty of a violation of the State Bar Act.

Defendant Jaques then asserted that the Seaside City Council

would ‘“‘not have the advise or assistance of the Bar As-

sociation’ in making its appointment to the vacant City

Attorney’s post, all reasonably inferring a State Bar disci-

plinary record against petitioner that v.ould bar petitioner

from consideration for public office. The article continues

by allegedly quoting a ‘‘judicially-inclined older member

of the Bar’’, as stating of petitioner’s conduct, **Where

there is smoke, there may be fire.”’

The article further refers to several lawsuits, one by a

Mrs. Schact against petitioner, inferring that petitioner was

implicated because California Code prohibits attorneys from

advising or assisting clients from avoiding court Judgments,

and a second ution concerning a Diana Charbonneau, in-

ferring thai petitioner claimed her property after using **in-

sider information on land sales’’, where he had previously

represented her.

All of such allegations, and their defamatory inferences

regarding petitioner, were false. Petitioner had not been the

subject of State Bar discliplinary proceedings and the arti-

cle’s concession that ‘‘formal complaints lodged with the

Bar Association against . . . (petitioner) have been turned

aside as inconsequential,’” does not vitiate the inference that

petitioner had a State Bar record of professional misconduct.

The *‘older member of the Bar’, identiticd as Judge Eugene

Harrah, denied the quote attributed to Fin: and further denied

that the investigative reporter had stated any suspicions

about petitioner to which he would have made such a reply.

The Schact case was never litigated, but settled, and that

settlement was made by petitioner on Mr. Schact’s repre-

sentations that he, Mr. Schact, would pay the settlement

—

and hold petitioner harmless therefrom. Petitioner never

advised or assisted his client to avoid the Judgment in favor

of Mrs. Schact. Rather, he aided Mr. Schact in the sale of

his house in the honest belief that Mr. Schact needed the

money to pay the judgment against him.

The Charbonneau case is also misstated. Petitioner never

sought to claim the Charbonneau property as his own, never

had access to “‘insider information’’, and was involved in

her quiet title action because of a $250 judgment lien for

fees. Petitioner received Summary Judgment as to the spe-

cific charges of the Charbonneau complaint against him,

and his only interest in the case, that of the lien for fees,

was affirmed by stipulation and the judgment of the case.

Finally, the citation from the Parker case was taken out

of context. The Court in that case, on the same page of the

transcript from which the defendants’ quotation was taken,

stated, ‘‘I don’t think Mr. Weingarten intended to do a

wrong, but that isn’t the question. Did he do a wrong,

knowingly or unknowingly or willingly or unwillingly, isn’t

that true?’’ Mrs. Parker’s attorney, of the same firm de-

fending this lawsuit, himself was quoted in the same tran-

script as saying ‘‘I am inclined to think that Mr. Weingarten

put himself into a position .. . where there was almost

nothing he could do there that was right as far as receiving

this money was concerned.’’

Petitioner was never subjected to any State Bar discipline

because of the Parker case, or for any other conduct.

4. Fraud. Defendants’ article dwells upon the lawsuit

of Mrs. Parker against petitioner, and states that ‘‘lawyers

still argue whether (petitioner) was actually found guilty of

fraud in the suit’’. Defendants again misstate the facts.

Petitioner, in the Parker case, represented a mother and son

in a legal matter. At some point, his clients contested their

various positions, and petitioner found himself in possession

= =

of funds to be applied for several debts or claims against

their property, without specific instructions from either. The

trial Court did originally charge petitioner with constructive

fraud, but reversed its Judgment in that respect on peti-

tioner’s (defendant in that case) Motion for New Trial. The

granting of the Motion for New Trial, subject to remissions,

was accepted by Mrs. Parker, and the Judgment was thus

amended. It should be noted that the trust funds in peti-

tioner’s possession did not go to the petitioner, but were

used by him to discharge tax liens against Mrs. Parker’s

property, and the Court found that such payment of taxes

was a negligent misappropriation of funds.

The Findings with respect to constructive fraud were

stricken or obviated by the trial Court’s conditional granting

of petitioner’s Motion for New Trial, accepted by Mrs.

Parker, and the Appellate Court’s decision eliminating some

findings and rendering others inapplicable to the Judgment.

The final Judgment was therefore for money damages, not

fraud.

5. Illegal Activities. In addition to the claim that the

‘*Urban Redevelopment Attorney (petitioner), using insider

information claimed the property as his own’’, the article

accuses petitioner of using his office for ‘‘rump sessions of

the city council’’. The falsity of the insider information has

been previously discussed. Further, petitioner’s denial of

using “‘insider information’’ for his benefit, whether in the

circumstances of the subject article, or at any other time,

was never rebutted by defendants. Knowledge of any ‘‘rump

sessions’’, intended by defendants to mean an ‘‘unofficial,

probably off the record meeting”’ and an ‘‘unofficial session

that would have been illegal’’, was also unequivocally de-

nied by the petitioner, and defendants offered no evidence

of such illegal meetings.

6. Misuse of Public Trust for Personal Gain. The ac-

a oe

cusation that petitioner, as the Redevelopment Agency at-

torney, used ‘‘insider information’’ on land sales, together

with the claim that petitioner amassed a $1 ,500,000.00 for-

tune in his 15 years as the City Attorney, ‘‘where he earned

more than $50,000.00 in some years from his public em-

ployment, and where the Redevelopment plum paid him

more than $41,000.00 a year’’, together with other refer-

ences to petitioner’s public service and ‘‘prolific real estate

and legal practice’, inferring misuse of petitioner’s public

office and trust for personal gain, were further misstatements

of facts. Petitioner’s net worth stemmed from investments

prior to his services as Seaside’s City Attorney. The Re-

development Agency employment paid petitioner $41,-

000.00 gross in one extraordinary year. Court costs and

other expenses would, of course, reduce that sum consid-

erably. His gross in that service averaged between $7,-

000.00 and $12,000.00 per year and petitioner was paid

approximately $11,000.00 per year as Seaside’s City At-

torney, not $20,000.00 as inferred by the article. Despite

defendants’ extensive examination of all of petitioner’s real

estate transactions, they never could produce any evidence

of any purchase or sale of property by petitioner that was

in any way connected with his public service.

Found among the mass of papers and documents pre-

sented by defendants belatedly, at the time of trial, in re-

sponse to demand for production of documents, was a 1971

memorandum of a telephone conversation between defen-

dant JAQUES and the attorney who represented the defen-

dants at the trial of this case. The document clearly suggests

that defendant JAQUES’ purpose in investigating the pe-

titioner, and in writing the defamatory articles here at bar,

was motivated by a desire to harm the petitioner, and that

his investigation was undertaken in such a way so as to

ro an

harm the petitioner, not in pursuit of truth or to give an

unbiased account of the petitioner’s activities.’

Other pertinent material evidence of this case will be

documented and discussed in the Argument portion of this

brief.

The federal question of this appeal concerns the appli-

cability of the New York Times v. Sullivan doctrine to this

case, and, in the event this Court determines that petitioner

was a public official or public figure, the propriety of the

Judgment of non-suit in the application of that doctrine.

This question, involving First and Fourteenth Amendment

rights, was a part of the case throughout all proceedings,

from the pleadings through the appellate court decision, and

the case was tried, and determined, as an action subject to

that doctrine.

'That note stated: ‘‘Etienne says that there is not only the Parker case

but suspicious of using inside information as city atty to his personal

advantage. says that they have considered going after Weingarten

through the bar assn. But that it is collossal job. I told him that maybe

we could help if they give us the leads. This he said they can do. As

always—they do not want to get into a rhubarb personally and I assured

him that we would be discreet.’’ (Exh. 10).

ae a

REASONS FOR GRANTING THE WRIT.

I.

PETITIONER’S STATUS.

The first portion of petitioner’s argument will discuss the

triat and appellate Courts’ determination that petitioner was

both a public official and public figure. Insofar as peti-

tioner’s services as City Attorney for the Cities of Gonzales

and Pacific Grove are concerned, neither of such posts have

been argued by defendants, or mentioned in the Opinion of

the Court of Appeal, as supportive of either such status.

Petitioner’ services as City Attorney for the City of Pacific

Grove were limited, and had ended some seventeen years

prior to the publications of this lawsuit. His service as City

Attorney for the City of Gonzales, although ongoing and

continuing to the time of such publications, were minimal

and consumed but a fraction of petitioner’s time. They were

of such limited public interest that defendants did not even

discuss such services in their articles.

1. Petitioner’s Legal Services as the Part-Time City

Attorney for the City of Seaside, California, Did Not

Warrant Imposition of the Status of Public Official

to Petitioner, in This Case.

In considering how far into the lower ranks of govern-

mental employees the ‘‘public official’’ designation would

extend for the purpose of the New York Times v. Sullivan

rule, this Honorable Court, in Rosenblatt v. Baer, (1966)

383 U.S. 75, at 85, has held that the rule would extend to

that “‘hierarchy of government employees who have, or

appear to the public to have, substantial responsibility for,

or control over, the conduct of governmental affairs’’.

The Opinion of the Court of Appeal discusses petitioner’s

part-time services as City Attorney for the City of Seaside,

to support its determination that petitioner was a ‘‘public

official’’. Its Opinion holds that petitioner, by such services,

had ‘‘substantial control over the conduct of governmental

affairs of Seaside’’. That conclusion has no support in the

evidence of this case. Petitioner has no legislative or ex-

ecutive functions, and his counsel was that of an attorney

to his client. No testimony, documentation, or other evi-

dence suggested that petitioner influenced, or even at-

tempted to influence, any ordinance, rule, regulation or

program of the City. To the contrary, petitioner testified to

the absence of any such involvement, and his testimony was

never rebutted.’

In Zeck v. Spiro, (1966) 52 Misc.2d 629; 276 NYS2d

395, the plaintiff was the attorney for a County Sewer Dis-

trict. There, the Court held that such position did not render

the plaintiff a public official, even though Mr. Zeck’s law

firm received fees in excess of $230,000.00. Here, peti-

tioner’s position as a part-time City Attorney for the City

of Seaside was of a miniscule nature, compared to Mr.

Zeck’s involvement with the County Sewer District.

More significantly, the Opinion of the California appel-

late Court does not mention the termination of petitioner’s

services as Seaside’s City Attorney, almost a year prior to

the publication of the first of the defamatory articles here

involved. Petitioner had no substantial responsibility for,

or control over, the conduct of governmental affairs, while

acting as the City’s Attorney, and any appearance of such

responsibility and control would have long since vanished

in the year between the termination of his services and the

defamatory publications that are the subject of this lawsuit.

*Petitioner’s testimony, when asked if he had anything to do with

policy-making in his position as City Attorney for Seaside was ‘‘No,

I had no policy making function at all’’ (RT 101, line 26 to 102, line

1) and as to his position as an attorney for the Redevelopment Agency,

‘“‘No, I. . . just performed legal services that they would request’’ (RT

112, lines 20-23); such testimony was not rebutted.

os

2. Petitioner’s Legal Services for the Redevelopment

Agency of Seaside Did Not Warrant the Imposition

of the Status of Public Official to Petitioner, in This

Case.

The conclusion of the Court of Appeal, in its Opinion,

that ‘‘Weingarten has played an active and important role

in the Redevelopment Agency since its inception in 1963,

and has received much publicity concerning his role in the

Redevelopment Agency throughout its history,’’ was not

entirely accurate. While there was undoubtedly public in-

terest in that agency at its inception, interest had dwindled

in the ensuing years, and petitioner’s service to the agency

received practically no publicity in the year prior to the

defamatory publications in question. By the time of those

publications, petitioner’s representation of the Redevelop-

ment Agency was insignificant. That agency’s functions

were so obscure that defendants’ newspaper, although it

listed meetings of the Monterey Park and Recreation Com-

mittee and the Seaside City Council, did not note the meet-

ings of the Redevelopment Agency in its column called

‘*Peninsula Datebook’’, which lists the sessions of various

public agencies and groups. Petitioner’s legal services for

that agency gave him no authority, title or status. The agency

was but one of petitioner’s clients, and petitioner was but

one of several attorneys that represented the agency.

As noted, the Court of Appeal concluded that petitioner,

‘As city attorney and attorney for the Redevelopment

Agency, had substantial control over the conduct of gov-

ernmental affairs of Seaside.’’ No evidence was elicited to

substantiate that holding, and, to the contrary, plaintiff's

testimony to the effect that he did not participate in basic

policy making and had but limited legal discretion was never

rebutted by respondents.

Cases referring to public officials have uniformly referred

ae

to employees. Plaintiff was neither an employee nor an

elected or appointed official in any context, but merely an

attorney representing a public agency, from time to time,

on a retainer basis.

The circumstances of this case, and petitioner’s occa-

sional representation of the Redevelopment Agency, do not

warrant impugning to petitioner the status of public official

as defined by the New York Times v. Sullivan doctrine.

3. Petitioner Not a Public Figure.

This Honorable Court, in Gertz v. Welch, (1974) 418

U.S. 323, has defined two categories of public figures. The

first category includes persons who achieve ‘‘such pervasive

fame or notoriety that they become public figures for all

purposes and in all contexts’’. The second category encom-

passes the individual who ‘‘voluntarily injects himself or

is drawn into a particular public controversy and thereby

becomes a public figure for a limited range of issues’’ (418

U.S. 323, at 351).

Respondents and the Court of Appeal reach back to pe-

titioner’s social and political activities in the 1950's to sug-

gest his status as a public figure, within the first test of

Gertz v. Welch, supra. Thus, they noted that his service on

the Democratic Central Committee of Monterey County and

of the State Central Committee, as well as his candidacy

for the State Assembly in 1958, and held that his ‘‘activities

as City Attorney, Attorney for the Redevelopment Agency

and as a civic leader’’, afforded him ‘‘significantly greater

access to the channels of communication that does an or-

dinary private person.’’ This conclusion is again, without

support in the evidence. The record discloses only that pe-

titioner, on one occasion, wrote to defendants’ newspaper,

for correction of an article they printed, and that defendants

issued a correction and retraction, something any reader

could have done with the same results.

oa * oe

The Appellate Court mentions numerous articles about,

Or naming, petitioner in the years preceding the subject

publications, as well as petitioner’s position as a ‘‘civic

leader’. This Court has held in Times, Inc. v. Firestone,

(1976) 424 U.S. 448, and Gertz v. Welch, supra, that such

newspaper publicity, notoriety in general, or publicity other

than matters of great public interest, does not make one a

public figure subject to the New York Times v. Sullivan

privilege.

Here, it should be noted, that as the jury was impaneled,

as many knew of Mr. Etienne, respondent’s counsel, as

knew of petitioner.

The appellate Court acknowledges the second test of

Gertz v. Welch, supra, and quotes from that case:

‘‘Hypothetically, it may be possible for someone to

become a public figure through no purposeful action

of his own, but the instances of truly involuntary public

figures must be exceedingly rare . . . More commonly,

those classed as public figures have thrust themselves

to the forefront of particular public controversies in

order to influence the resolution of the issues in-

volved.’ (At 345)

The application of the foregoing to this case excludes

petitioner from the status of public figure.

After the termination of petitioner’s service as City At-

torney of Seaside, in October, 1970, netitioner withdrew

from public view. He surfaced briefly io represent one of

the recall organizations, for a court appearance, although

that organization had other counsel. The appellate Court

concluded that petitioner therefore ‘‘thrust himself in the

vortex of the public controversy generated by the recall

campaign.’’ Despite the fragility of that contention, that

position is immaterial to this case, because the recall cam-

paign ended in June, some three months before the defam-

a | a

atory publications, and that campaign was not a controversy,

nor even the subject of defendants’ newspaper articles of

September and October, here involved. And there was no

controversy leading to the publications in question, except

that generated by the defendants, by their inference that

petitioner was being considered to fill the City Attorney

vacancy. Petitioner had no intention of filling that vacancy,

and nobody involved had any intention of requesting his

return to that position.

This Court has held, in Hutchinson v. Proxmire, (1979)

61 L.Ed.2d 411:

‘*Those charged with alleged defamation cannot, by

their own conduct, create their own defense by making

the claimant a public figure. Nor is the concern about

public expenditures sufficient to make petitioner a pub-

lic figure, petitioner at no time having assumed any

role of public prominence in the broad question of such

concern.’’

The foregoing has particular application to this case. If

there was a public controversy concerning filling the vacant

City Attorney post of the City of Seaside, petitioner did not

thrust himself into that issue, and did nothing to influence

its resolution, one way or another. He made no public or

private statement, opinion or recommendation relative to

that ‘‘controversy’’, and was not even approached by the

defendants, so that he could give his opinion. In fact, he

did not even know of such ‘‘controversy’’ until after the

publication of the subject articles.

a”

4. The Trial Court Erred in Denying Petitioner a Trial

by Jury on the Issue of Status, and in Separately

Trying That Issue.

Il.

STANDARD FOR REVIEW OF PROCEDURE AND EVIDENCE.

Plaintiff requested a trial by jury. Prior to impaneling the

jury, the trial Judge determined that plaintiff was a public

official and public figure, and thus invoked the New York

Times v. Sullivan doctrine, in a bifurcation of the case and

court trial, as to those issues.

In its determination of the plaintiff's status as a public

figure and public official, the Court denied plaintiff his right

to trial by jury, as afforded by the Seventh Amendment to

the United States Constitution and Article I, Section 7 of

the California Constitution.

Mixed questions of fact and law, where the facts are in

dispute, are traditionally within the providence of the trier

of facts (Good Government Group of Seal Beach, Inc. v.

Superior Court, (1978) 22 Cal.3d 672; 150 Cal.Rptr. 258),

including the question of privilege (Adams v. Cameron,

(1915) 150 P. 1005; Clark v. McClurg, (1932) 9 P.2d 505).

Thus, the trial Court’s determination of this issue, by court

trial, denied petitioner his right to a trial by jury on all

issues of fact.

Ill.

PETITIONER’S NON-SUIT BURDEN ON THE ISSUE OF MAL-

ICE, IF A PUBLIC OFFICIAL OR PUBLIC FIGURE.

1. The Trial and Appellate Court Did Not Apply the

Proper Test to Defendants’ Motion for Non-Suit in

This Case.

The District Court of Appeals acknowledged the stand-

ards cited in Guam Federation of Teachers v. Ysrael, (9th

Cir. 1974), 492 F.2d 489, cert. den., 419 U.S. 872, 92

till Di

S.Ct. 132, 42 L.Ed.2d 111, and cites the pertinent holdings

of that case, as applied to the tests to be utilized by the trial

court in determining a motion for non-suit in a political libel

case.

‘*. . . We think that a libel case, as in other cases, the

party against whom a motion for summary judgment,

a motion for a directed verdict, or a motion for a judg-

ment notwithstanding the verdict is made is entitled to

have the evidence viewed in the light most favorable

to him and to all inferences that can properly be drawn

in his favor by the trier of fact.

‘*The standard against which the evidence must be

examined is that of New York Times and its progeny.

But the manner in which the evidence is to be examined

in the light of that standard is the same as in all other

cases in which it is claimed that a case should not go

to the jury.’’ (Opinion, Appendix, page C-15)

Notwithstanding this language, both the Trial Court and the

District Court of Appeals failed to give the petitioner the

benefit of the evidence, but rather, their interpretation of

the evidence suggests the application of the stricter standards

of Bon Air Hotel, Inc. v. Time, Inc., (Sth Cir. 1970) 426

F.2d 858.

The Appellate Court’s discussion as to defendant Block’s

attitude as to truth or falsity of the material published, ig-

nores the admitted and conceded fact that neither Mr. Block

nor the investigative reporter, Mr. Jaques, ever, at any time,

interviewed the petitioner, nor anyone except those known

to be hostile to the petitioner, and those that bore petitioner

illwill. Further, the Appellate Court’s discussion of the Par-

ker case, at page 20 of the Opinion, does not acknowledge

that petitioner never made any profit from the transaction

involving Mrs. Parker, and neglects to note that the Parker

case had been reviewed many times in the years preceding

the subject defamatory articles, and had been laid to rest

prior to the termination of petitioner’s position as City At-

—_) a

torney for the City of Seaside. It merely states, instead, that

the Parker case ‘‘apparently was one of the factors that led

to Weingarten’s termination as City Attorney’’, an unwar-

rented inference unfavorable to plaintiff.

In the Appellate Court’s discussion of Mr. Jaques’ re-

search, no mention is made of Mr. Jaques’ statement that

he was assigned to explore and write about the petitioner’s

‘problems and troubles’’ And while it is true that Mr.

Jaques interviewed the individuals hostile to petitioner men-

tioned on Page 21 of the Opinion, the Appellate Court failed

to mention that Mr. Jaques did not interview any person in

the Schacht case, except Mrs. Schacht and her attorney, nor

any of the shareholders in the All-Nav matter, other than

the ‘‘dissidents’’, nor any black individuals other than the

one black involved in the housing discrimination action, nor

anybody other than Mrs. Charbonneau in the Charbonneau

case. Mr. Sorre’s testimony, reviewed on Page 22 of the

Opinion, does not establish defendant Block’s lack of mal-

ice, but rather, to the contrary. Mr. Sorre stated that Mr.

Jaques had been brought out as a hatchet-man on the Wein-

garten story. Notwithstanding the ‘‘qualification’’ suggested

by the Appellate Court, the inference most favorable to the

petitioner, was that Mr. Jaques was ‘‘brought out as a

hatchet man, for Block in the Weingarten story’’.

The Appellate Court suggestion that ‘‘the reference to the

possible return of Weingarten as City Attorney for Seaside

was not defamatory’’ (Opinion, p. 24), does not explore the

fabricated character of that reference. There was no legit-

imate source of that information, and it was fabricated to

create a ‘‘newshook’”’ to justify the defamatory publications

and to create a “‘public controversy’’, so that defendants

could hide behind the New York Times v. Sullivan privilege.

The statement that some found petitioner ‘‘difficult to

follow in business transactions’’, in the subject article, re-

—19—

garding petitioner’s recollection of earlier oral agreements.

is a Clear inference of dishonesty, and leaves no room for

any other conclusion.’ It was clearly unsupported by any

evidence, was false, and maliciously published.

The Opinion, on Page 26, misstates the record where the

Appellate Court suggests that there were ‘‘a number of

incidents where Weingarten’s stand as City Attorney or for

the Redevelopment Agency was opposed by a segment of

the Black community’’. The Appellate Court’s discussion

of the facts involved are predicated upon the opinions of

Mr. Carey, the recalled City Council member, obviously

antagonistic toward petitioner, but no other members of the

Black community. There is no justification for the blatant

accusation that petitioner had taken $30,000.00 in fees from

the All-Nav Corporation; a lie of *‘whole cloth’’, without

any substance, and the reasonable inference, which the

Appellate Court must draw from such unsubstantiated false-

hood, was that the same was fabricated, and therefore ma-

licious within the New York Times v. Sullivan doctrine

(Opinion, p. 27).

All reasonable inferences to be drawn from other evidence

of the case, hereinafter set forth, and elsewhere discussed

in this Brief, if construed most favorably for the petitioner,

and indeed within the most reasonable inferences that can

be drawn from such evidence, inescapably establishes the

defendants’ ‘‘actual malice’’ as defined by the New York

Times v. Sullivan doctrine.

2. Defendants’ Motives and Methods of Investigation

and Reporting Defined Defendants’ Actual Malice.

A. Defendants’ Motive and Purpose.

Actual malice, within the purview of New York Times v.

*Mr. Jaques testified that he meant to refer to petitioner's **forget-

fulness’’ (RT 602, lines 19-23).

a, eS

Sullivan, is not defined as illwill, bias, or spite. But such

factors may be relevant to the issues of reckless disregard

for truth, or known falsity, of that doctrine. In Goldwater

v. Ginzburg, (2nd Cir. 1969) 414 F.2d 324, the court con-

sidered motive and purpose of the defendants, and held that

while neither negligence or failure to investigate, on one

hand, nor illwill, bias, spite, or prejudice, on the other hand,

standing alone, were sufficient to establish either known

falsity or reckless disregard for truth, they were material

to such issues.

Here, defendant BLOCK began his crusade against the

plaintiff as an exercise in illwill and to indulge his authority

as the head of a giant newspaper chain. He was frustrated

in his attempts to influence the local politics of the Monterey

Peninsula area after purchasing its only daily newpaper.

Petitioner was an identifiable opposition to the positions

espoused by defendant BLOCK. Petitioner briefly repre-

sented the recall organization while defendant BLOCK op-

posed that recall. All four councilmembers that were the

subject of the recall were supported by defendants. The

recall movement was successful and three of the four coun-

cilmembers were recalled.

While corrupt motive or personal spite does not constitute

actual malice, such subjective factors may be relevant to

that issue (See Hotchner v. Castillo-Puche, (S.D.N.Y.

1975) 404 F.Supp. 1041, at 1047). Here, defendant ordered

his investigative reporter to delve into and again rehash the

Parker case, notwithstanding its prior extensive coverage

in defendants’ newspaper, and to explore and write about

the petitioner’s ‘‘problems and troubles’’.

Any doubt as to the defendants’ bias and illwill, and their

corresponding intent and purpose in their investigation of

the petitioner and the publication of the subject articles, can

be easily dispelled by a review of defendant Jaques’ mem-

a, | oo

orandum of his telephone conversation with the law offices

of Noland, Hamerly, Etienne and Hoss, the attorneys for

petitioner’s antagonist in the Parker case. (Footnote 1,

ante).

B. Method of Investigation and Reporting.

Just as motive has a bearing upon the determination of

actual malice, so does the method of investigating and re-

porting the subjects explored by the articles.

In Curtis Publishing Co. v. Butts, supra, the defendant’s

policy with respect to investigating and reporting particular

items was characterized by the Supreme Court as *‘sophis-

ticated muck-raking’’, and a factor in determining the issue

of actual malice. In St. Amant v. Thompson, (1968) 390

U.S. 727, the Supreme Court held that the publisher’s

professions of good faith are unlikely to be persuasive,

where he has obvious reasons to doubt the veracity of his

informants, or where the allegations were so inherently im-

probable that only a reckless man would have put them in

circulation.

When the defendants began their investigation, they

planned to present their article as a news item. Having

nothing upon which to substantiate that stratagem, they im-

provised a ‘‘newshook’’ by fabricating an intention of the

City Council to rehire the Petitioner. Defendant JAQUES

testified that he could ‘‘not remember’’ who had told him

of that intention. And defendant JAQUES, after he wrote

the first article showed it to defendant BLOCK’S editorial

director, who was in charge of the editorial policies of the

newpaper, instead of the news editor.

In their investigation of the petitioner, defendants not

only pursued sources of information from persons known

to be hostile to petitioner, but declined the pursuit of any

verification or rebuttal of the ‘‘evidence’’ against petitioner.

Be Se

Thus, in “‘investigating’’ the matter of racial bias, they

interviewed the Black petitioner in an action against an

Oriental, where petitioner had represented the latter and

Pearl Carey, one of the City Council members who voted

to terminate the petitioner’s services as City Attorney, and

had subsequently been recalled (RT 607, lines 19-23). In

reviewing the petitioner’s association with the All-Nav Cor-

poration, they talked only to the dissidents. In exploring the

Schact case, the Parker case, and the Charbonneau case,

they reviewed those lawsuits against the petitioner with the

attorneys representing petitioner’s antagonists, and one of

the litigants that had sued the petitioner. In short, they

conducted their investigation of petitioner’s ‘‘troubles and

problems”’ to ferret out any defamatory rumor or adverse

opinion that may have existed in the minds of those who

would be most likely to harbor resentment toward the pe-

titioner.

On the other hand, defendants never interviewed peti-

tioner, nor questioned him with respect to any of the items

of the article. On the question of racial bias, defendants

could not identify any other Black resident that they inter-

viewed, except as above-noted. Nor did defendants inter-

view any of the other officers of the All-Nav Corporation,

except those that they identified as dissidents. In addition,

they did not interview Mr. Haddad, the mayor of Seaside

at the time of the termination of petitioner’s position as City

Attorney, and the one member of the City Council who had

voted against that termination. In other words, the defen-

dants effectively ‘‘stonewalled’’ themselves against any

possible information that would dispel the demeaning and

defamatory rumor and opinion that they so selectively

sought. Their conduct was a departure from normal re-

porting procedure, and is clear and convincing evidence of

the defendants’ reckless disregard for the truth in the pub-

lication of those articles.

|, we

3. The Evidence Established Defendants’ Knowledge

of Falsity, Sufficient to Withstand Their Motion for

Non-Suit.

Evidence of state of mind in the matter of actual malice

must generaliy rest upon circumstantial evidence as a de-

fendant in a defamation suit will rarely, if ever, affirm his

knowledge of the false character of his publication. Thus,

a defendant’s knowledge in this respect may be found from

his obvious fabrication of defamatory matter (See Goldwater

v. Ginzburg, supra; and St. Amant v. Thompson, supra),

his culpable misstatement of known facts (Montandon vy.

Triangle Publishing, Inc., (1975) 45 Cal.App.3d 938, 120

Cal.Rptr. 186), or his distortion of truth for defamatory

effect (Carson v. Allied News, supra).

In Montandon v. Triangle Publishing, Inc., a published

program note identified the petitioner as a guest on a pro-

gram entitled ‘‘From Party Girl to Call Girl’’.

The California Appellate Court found that the defendant’s

protestation that he did not believe that the average reader

would interpret the published program note as relating the

Petitioner to a call girl, ‘‘flies in the face of reason’’, and

was proof of convincing clarity that the article was not

published in good faith, but with actual malice as defined

by New York Times v. Sullivan. And in Carson v. Allied

News, supra, the court found actual malice within that doc-

trine, where the defendant fabricated supposed conversa-

tions of the Petitioner.

In addition to the improvised ‘‘newshook’”’ as previously

discussed, defendants knew that Petitioner did not earn

$20,000.00 per year in his position as Seaside’s City At-

torney, as inferred by the article, but that his salary was not

more than $12,000.00 per year. Nor did they have any

reason to believe that Petitioner had engaged in a prolific

real estate practice. Defendant JAQUES admits that his use

es,” ae

of the phrase ‘‘insider information’’ may have been an in-

correct term. And the court files which he so thoroughly

reviewed showed Petitioner’s innocence of any such activ-

ity. And Defendant JAQUES had ‘‘no idea now why”’ he

had exaggerated his information that the Redevelopment

agency had paid Petitioner $41,000.00 in one year, to the

$41 ,000.000 a year statement of the article.

Defendants must have known that their racial smear was

false, from the above discussion on racial bias. Defendant

JAQUES further admits that his use of the term ‘‘minority

groups’’ opposed to Petitioner’s representation of a client

in a civil rights action, ‘‘may have been imprecise’’, in view

of the fact that both sides of that case were members of

minority groups.

The clear inference of the article that Petitioner was dis-

honest, from the statement that ‘‘some found him difficult

to follow in business transactions, particularly in his rec-

ollections of earlier verbal agreements’’, was false and

known to be false by the defendants. Their testimony that

they were referring to the Petitioner’s ‘‘forgetfulness’’ is

patently absured. Further, defendants knew that petitioner

was not found guilty of fraud in the Parker case. Defendant

JAQUES testified that Mrs. Parker’s lawyer, Mr. Hoss, had

expressed his opinion of Petitioner’s culpability, but that

he, JAQUES, had read an article in defendants’ paper stat-

ing that Petitioner had not been found guilty of fraud. Fi-

nally, the statement attributed to Judge Harrah, ‘‘Where

there is smoke, there may be fire’’ was pure fabrication,

as above-noted.

4. The Evidence Established Defendants’ Reckless Dis-

regard for the Truth, Sufficient to Withstand Their

Motion for Non-Suit.

Generally, reliance upon a questionable source (St. Amant

v. Thompson, supra), or unconfirmed rumor (Guam Fed-

a. ae

eration of Teachers v. Ysrael, (9th Cir. 1974) 492 F.2d

438), have been held to be clear and convincing evidence

of reckless disregard for truth.

In David v. Schuchate, (D.C. Cir. 1975) 510 F.2d 531,

the defendants’ attempt to excuse the defamatory statements

by arguing that he had a justifiable and good faith confusion

between ‘‘indictment’’ and ‘‘conviction’’, was rejected by

the court’s findings of his knowledge to the contrary, and

that the defendant had therefore published his defamatory

article in reckless disregard for truth. (510 F.2d 531, at

736). And failure to investigate a story when not a ‘“‘hot

news’’ item, will also suffice to establish defendants’ reck-

less disregard for the truth (Curtis Publishing Co. v. Butts,

supra) and Hotchner v. Castillo-Puche, supra).

And in Vandenberg v. Newsweek, Inc., (Sth Cir. 1975)

507 F.2d 1024, the court held that ‘‘when the story is not

‘*hot news’’, as is the case here, the investigation must be

more thorough, and ‘‘actual malice may be inferred when

the investigation . . . was grossly inadequate in the circum-

stances.”’

In the instant case, defendants relied solely upon indi-

viduals likely to bear resentment toward the petitioner, as

above-noted, and misstated public records and private doc-

uments. The most glaring example of the latter is found

from the article’s accusation that petitioner had been sur-

reptitiously ‘‘taking as much as $30,000.00 per year in legal

and consulting fees’’ from former associates of the Navy,

in the operations of a smal! corporation known as All-Nav,

Inc. This information was ostensibly obtained from the dis-

sidents above mentioned, and a pro-forma balance sheet of

the corporation. The pro-forma balance sheet was desig-

nated as such, but not dated. It projected salaries of officers

of the Corporation at $30,000.00 per year. It was never

implemented, officers never received salaries, and peti-

ae

tioner’s legal fees to the corporation averaged $500.00 per

year. Yet, the aforesaid defamatory contention was pub-

lished by the defendants. At the trial, they would explain

that defendant JAQUES did not understand what the pro-

forma balance sheet meant.

It is incredible to believe that this sophisticated investi-

gative reporter would be ignorant of the nature of a pro-

forma balance sheet and, if indeed he did not know its

purpose, would have made no inquiry as to the nature of

such a document. Further, although Defendant JAQUES

knew that the dissidents who had showed him the pro-forma

balance sheet were antagonistic toward the petitioner he did

not go to any other member of the All-Nav Corporation to

confirm that document or ascertain its meaning.

Defendants based other portions of their article upon un-

confirmed rumor without any effort to substantiate the state-

ments involved. Thus, their contentions of petitioner’s in-

come and earnings while he served as attorney for the several

public entities previously discussed, and the inference that

he had misused his office for personal gain, were based

upon such unconfirmed rumor. The serious charge that pe-

titioner permitted the use of his office for ‘‘rump”’ sessions,

of the City Council, known by Defendant BLOCK to be

illegal was not supported by any evidence, and the appellate

Court’s decision referring to public agenda sessions of the

Council, do not support the inference of ‘‘rump’’ sessions

inferred by that Court. However viewed, the total evidence

of this case clearly demonstrates defendants’ ‘‘actual mal-

ice’’ within the purview of the New York Times v. Sullivan

doctrine.

CONCLUSION.

Petitioner was neither a public official or public figure

within any of the guidelines or tests previously defined by

=,

this Honorable Court. Even so, defendants’ known falsity

and reckless disregard for the truth, as to their defamatory

publications, was graphically demonstrated by the evidence

presented to the Trial Court.

Defendants’ publications were contrived attacks upon

petitioner’s reputation and occupation. Their investigation

was designed to ferret out every specious rumor and adverse

opinion of the petitioner possible, for its indiscriminate pub-

lication.

Petitioner respectfully requests that a writ of certiorari

issue from and by this Honorable Court, to review the de-

cision and opinion of the California Appellate Court, as

affirmed by the California Supreme Court, and that the

decision and opinion of the California Appellate Court, as

affirmed by the California Supreme Court, be summarily

reversed, with instructions to remand the case to the Cali-

fornia Trial Court for a trial on the merits, as to all issues

of the case, and for such other and further orders and di-

rections as this Honorable Court deems may be just in the

premises.

Respectfully submitted,

JACQUE BOYLE,

Attorney for Petitioner.

APPENDIX A.

Judgment.

Superior Court of California, County of Monterey.

Saul M. Weingarten, Plaintiff, vs. Paul Block, et al.,

Defendants. No. M-5520.

The above-entitled cause came on regularly for tvial be-

fore the undersigned on November 15, 1976. Plaintiff ap-

peared in person and by JACQUE BOYLE. Defendants

appeared in person and by MYRON E. ETIENNE, Jr.,

Attorney at Law, of the law firm of NOLAND, HAMERLY,

ETIENNE & HOSS. A jury was regularly sworn and im-

paneled. After presentation of evidence, oral and docu-

mentary, on behalf of the Plaintiff, the Defendants there-

upon moved for a nonsuit. The Court being advised in the

premises and good cause appearing therefor:

IT IS HEREBY ORDERED, ADJUDGED AND DE-

CREED:

That Defendants have judgment in the within action, that

Plaintiff takes nothing by his action; and that Defendants

have his costs of suit herein in the amount of $2,009.20.

DATED: Jan. 7, 1977.

/s/ Edward P. Fogg

Judge of the Superior Court

—

APPENDIX B.

Findings of Fact and Conclusions of Law.

In the Superior Court of the State of California, County

of Monterey.

Saul M. Weingarten, Plaintiff vs. Paul Block, et al.,

Defendants. Case No. M 5520.

The above-entitled matter came on regularly for trial in

the above entitled court on November 24, 1976, the Hon-

orable Edward P. Fogg presiding with a jury. Myron E.

Etienne, Jr., Attorney at Law of the law firm Noland, Ham-

erly, Etienne & Hoss, represented the Defendants; the Plain-

tiff was represented by Jacque Boyle.

Said cause having been heard, evidence both oral and

documentary having been introduced, and arguments having

been presented.

THE COURT FINDS AND CONCLUDES AS FOL-

LOWS:

1. Plaintiff Saul M. Weingarten served as City Attorney

for the city of Seaside for a period of 15 years, from 1955

to 1970.

2. Plaintiff Saul M. Weingarten served as City Attorney

for the City of Gonzales for a period of 19 years, from 1954

to 1973.

3. Plaintiff Saul M. Weingarten served as interim City

Attorney for the City of Pacific Grove for a period of |

year, from 1954 to 1955.

4. Plaintiff Saul M. Weingarten has served continuously

as attorney for the Redevelopment Agency of the City of

Seaside from 1963 to the present. Although said agency has

been served by other counsel, Plaintiff has been the only

local counsel which has served the agency during that period

of time. Plaintiff was the City Attorney of Seaside at the

time the agency was formed and was instrumental in forming

a,

the agency, in getting the federal funding for the agency,

and initiating and bringing to fruition a series of redevel-

opment projects in the City. Since the formation of the City

of Seaside in the mid-1950’s, the Redevelopment Agency

has played an important role in providing to Seaside utilities,

improvements and services which did not exist in Seaside

prior to its incorporation. Plaintiff has played an active and

important role in the Redevelopment Agency since its in-

ception in 1963, and Plaintiff has received much publicity

concerning his role in the Redevelopment Agency through-

out the history of said agency.

5. Prior to publication of the subject articles in 1971,

Plaintiff Saul M. Weingarten had held the following public

offices:

a. Member of the Democratic Central Committee for

Monterey County for approximately 10 years, beginning in

1955;

b. Member of the State Central Committee for 2 years,

approximately 1958 and 1959.

6. Plaintiff Saul M. Weingarten had been a candidate

for the public office of State Assembly in 1958, and Plain-

tiff's name was suggested by Demoeratic organizations as

a candidate for the United States Congress and the California

State Senate.

7. Plaintiff Saul M. Weingarten has pleaded in the ver-

ified Fifth Amended Complaint that he was ‘‘public attor-

ney’’ and other facts which are the equivalent thereof, as

follows:

a. Page 3, line 21;

Page 8, line 11;

Page 11, line 19;

Page 16, line 11;

Page 19, line 18;

oacs

ae ee

f. Page 23, line 12;

g. Page 25, line 23;

h. Page 29, line 6.

8. Plaintiff Saul M. Weingarten’s activities as City

Attorney, attorney for the Redevelopment Agency, and civic

leader in the community of Seaside and in the Monterey

Peninsula area received extensive publicity in the Monterey

Peninsula Herald newspaper from 1967 to 1971.

9. Because of his public stature, Plaintiff Saul M. Wein-

garten had significantly greater access to the channels of

communication than does an ordinary private person.

10. At the time of the publication of the subject articles

in 1971, Plaintiff Saul M. Weingarten had assumed a role

of especial prominence in the affairs of the community of

Seaside, and occupied a position of persuasive power and

influence which caused him to attain pervasive fame and

notoriety in the community of Seaside.

11. Plaintiff Saul M. Weingarten was discharged from

his position of City Attorney for the City of Seaside in

October of 1970 by vote of the Seaside City Council; there-

after, Plaintiff Saul M. Weingarten served as the attorney

for the Seaside Citizens For Better Government, a corpo-

ration organized to initiate a recall of the members of the

Seaside City Council who had voted for Plaintiff Saul M.

Weingarten’s discharge. Relative to the recall movement

in Seaside, Plaintiff also represented Bernard J. Dolan, Jr.,

in an action filed against the City of Seaside in Monterey

County Superior Court, No. M 5020, entitled Dolan vs.

City of Seaside. The recall movement in Seaside generated

controversy in the community and received extensive pub-

licity in the local newspaper.

12. The recall movement, organized and promoted by

the corporation which Plaintiff Saul M. Weingarten repre-

pax, Wee

sented, successfully recalled from office three of four mem-

bers of the Seaside City Council who had voted to discharge

Plaintiff Saul M. Weingarten as City Attorney.

13. By his representation of the recall organization,

Plaintiff Saul M. Weingarten voluntarily injected himself

into the public controversy in Seaside regarding the recall

election and thereby invited public attention and comment.

14. After the discharge of Plaintiff Saul M. Weingarten

from the position of City Attorney for the City of Seaside

in October of 1970, that position remained vacant and legal

services were performed for the City by several interim City

Attorneys. In August of 1971, after completion of the recall

election, the City of Seaside resumed its search for a City

Attorney. On August 5, 1971, an article appeared in the

Monterey Peninsula Herald indicating that the Seaside City

Council was resuming the search for a City Attorney. On

September 9, 1971, the date of the publication was vacan

and applications for the position were being solicited by the

City of Seaside. The position of City Attorney in Seaside

was a matter of lively public interest throughout 1971 and

remained so on September 9, 1971; propositions for further

change were abroad, and public interest in filling the va-

cancy created by the firing of Plaintiff continued strong

throughout 1971.

15. Plaintiff Saul M. Weingarten was drawn into the

public controversy in Seaside regarding the filling of the

vacancy in the City Attorney position because of Plaintiff's

former position as Seaside City Attorney for 15 years, and

because of his involvement as attorney for the organization

which recalled three of the four members of the Seaside

City Council who voted to discharge him from the position

of City Attorney.

16. The comments regarding Plaintiff Saul M. Wein-

garten which appear in the subject articles relate to one or

a

more of the following issues:

a. Plaintiff Saul M. Weingarten’s involvement in the

public controversy surrounding his dismissal as City Attor-

ney and the filling of the vacancy created thereby:

b. Plaintiff Saul M. Weingarten’s involvement in the

movement to recall the members of the Seaside City Council

who voted to discharge him;

c. Plaintiff Saul M. Weingarten’s fitness to perform the

services of City Attorney of the City of Seaside or attorney

for the Redevelopment Agency and to hold a position of

public service and esteem in the community of Seaside.

Any findings of fact stated herein as a conclusion of law

shall be deemed as such and any conclusion of law stated

as a finding of fact shall be deemed incorporated in these

findings.

From these findings, the court makes the following

CONCLUSIONS OF LAW

1. Plaintiff Saul M. Weingarten was a public official

at the time of publication of the subject articles.

2. Plaintiff Saul M. Weingarten was a public figure for

all purposes and had attained pervasive fame and notoriety

in the community of Seaside at the time of publication of

the subject articles.

3. Insofar as Plaintiff Saul M. Weingarten has injected

himself by his own actions into the governmental affairs of

the City of Seaside, and was drawn into the governmental

affairs of the City of Seaside by the public’s interest in his

involvement therein, Saul M. Weingarten was a public fig-

ure for the purposes of his involvement in the governmental

affairs of the City of Seaside.

4. Plaintiff Saul M. Weingarten has the burden of proof

to show that any defamatory material published in the sub-

ject articles was false and that Defendants knew it to be

anes ne

false, or entertained serious doubts as to its truth.

Let Judgment be entered accordingly.

Dated: Feb. 8, 1977

/s/ Edward P. Fogg

Honorable Edward P. Fogg

=

APPENDIX C.

Opinion of the Court of Appeal.

In the Court of Appeal of the State of California, First

Appellate District, Division Two.

Saul M. Weingarten, Plaintiff and Appellant, v. Paul

Block, Monterey Peninsula Herald Co., a California cor-

poration, Toledo Blade Company, an Ohio corporation,

Richard B. Gifford and Milton Jaques, Defendants and

Respondents. | Civil No. 42705, (Sup. Ct. No. M 5520).

Filed: Feb 14, 1980.

The major questions presented by this appeal' are whether

the trial court properly: |) found that plaintiff, Saul

M.Weingarten (Weingarten), the former city attorney of

Seaside and local attorney for its redevelopment agency,

was a “‘public official’’ and ‘‘public figure’’ within the rule

of New York Times Co. v. Sullivan, 376 U.S. 254, and

Curtis Publishing Co. v. Butts, 388 U.S. 130; 2) granted

a nonsuit at the conclusion of Weingarten’s evidence before

a jury on his complaint for libel, conspiracy to libel, inten-

tional infliction of emotional distress, and interference with

economic advantage against the owners and publishers of

the Monterey Peninsula Herald and other defendants’ (here-

after collectively Block). For the reasons set forth below,

we have concluded that the judgment must be affirmed.

'The notice of appeal indicates that it is also taken from the order

o: November 24. 1976, which granted the defense motion for a court

determination of the application of the New York Times privilege. As

this order was merged in the judgment, it is not separately appealable

and that appeal must be dismissed.

*The defendants on appeal are Paul Block, the major stockholder:

Toledo Blade Company, another owner; Monterey Peninsula Herald

Co., the publisher, B. Gifford, the manager of the Monterey Herald:

and M. Jaques, the author of the articles.

es

The instant case hinges on the application of the qualified

constitutional privilege based on the First Amendment of

the U.S. Constitution and extended to state court libel ac-

tions by the Fourteenth Amendment, as first set forth in

New York Times Co. v. Sullivan, supra, 376 U.S. 254.

The rule established that in a defemation action brought by

a public official, the plaintiff must prove by clear and con-

vincing evidence that the publication was false, and that the

defendant published with ‘‘actual malice’’ (p. 280), defined

as publishing “‘with knowledge that it was false or with

reckless disregard of whether it was faise or not™’ (p. 280).

(See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469,

490).

The New York Times rule was extended beyond *‘public

officials’? to ‘‘public figures’’ (Curtis Publishing Co. v.

Butts, supra, 388 U.S. 130, and its companion case, As-

sociated Press v. Walker, 388 U.S. 130). In Rosenbloom

v. Metromedia, 403 U.S. 29, the U.S. Supreme Court held

that a libel plaintiff's status as a public person was not

determinative of the availability of the qualified constitu-

tional privilege; the privilege was extended to all discussion

and communication concerning matters of public or general

concern. Subsequently, in Gertz v. Welch, Inc., 418 U.S.

323, the U.S. Supreme Court held that the Rosenbloom rule

was not constitutionally required, and returned to a distinc-

tion between ‘‘public persons’’ (including both ‘‘public

officials’’ and *‘public figures’’) and ‘‘private individuals. ’’

Preliminarily, we dispose of Weingarten’s procedural

contentions. Weingarten argues that the court abused its

discretion by permitting Block to amend their answers at

the time of trial to include an allegation that he was a ‘‘public

official.’” The answers alleged as an affirmative defense

that Weingarten was a “‘public figure.’’ The trial court has

discretion to allow an amendment to any pleading in fur-

—10—

therance of justice at any time before or after the com-

mencement of trial (Code Civ. Proc., $8473, 576). Liber-

ality in permitting amendments is the rule (Greenberg v.

Equitable Life Assur. Society, 34 Cal.App.3d 994). As a

matter of policy, the ruling of the trial court will be upheld,

unless a manifest or gross abuse of discretion is shown

(Bedolla v. Logan & Frazer, 52 Cal.App.3d 118, 135).

As the court observed here, Weingarten knew from the

beginning that the New York Times privilege was the major

issue. Weingarten’s complaint was pled in the language of

New York Times and in his trial brief, he referred to himself

as a ‘‘public official.”’ Accordingly, we conclude that the

court did not abuse its discretion in allowing the amendment

of the answer.

Weingarten next argues that the trial court erred by mak-

ing a determination of the public official/public figure issue

prior to the commencement of the jury trial. In Rosenblatt

v. Baer, 383 U.S. 75, at page 88, the U.S. Supreme Court

indicated that ‘‘as is the case with questions of privilege

generally, it is for the trial judge in the first instance to

determine whether the proofs show [plaintiff] to be a ‘public

official.” ’’ The federal authorities agree that the question

is a mixed one of law and fact to be preliminarily determined

by the trial court (Meeropol v. Nizer (2d Cir. 1977) 560

F.2d 1061; Rosanova v. Playboy Enterprises, Inc. (S.D.

Ga. 1976) 411 F.Supp. 440; Hotchner v. Castillo-Puche

(S.D.N.Y. 1975) 404 F.Supp. 1041; rev. jury verdict (2nd

» Cir. 1977) 551 F.2d 910). Such a procedure is consistent

with that followed in this state for the determination of

privilege. In any event, Evidence Code section 320 leaves

the order of proof in the discretion of the trial court ‘‘[e]xcept

as otherwise provided by law.’’ We conclude that the trial

court properly determined the issue before submitting the

case to the jury.

In this context, we turn to the facts as found" by the court.

Weingarten served as city attorney for the City of Seaside

for 15 years, from 1955 to 1970; he also served as city

attorney for the City of Gonzales for 19 years, from 1954

to 1973, and as interim city attorney for the City of Pacific

Grove for one year, from 1954 to 1955. In addition, Wein-

garten has served continuously as attorney for the Rede-

velopment Agency of the City of Seaside (Redevelopment

Agency) from 1963 through 1977. Although the Redevel-

opment Agency was served by other counsel, Weingarten

has been the only local counsel. Weingarten was the city

attorney of Seaside at the time the Redevelopment Agency

was formed and was instrumental in forming the agency,

in getting the federal funding and initiating and bringing to

fruition a series of redevelopment projects in the city. Since

the formation of the City of Seaside in the mid-1950’s,

Redevelopment Agency has played an important role in

providing utilities, improvements and services which did

not exist in Seaside prior to its incorpezation. Weingarten

has played an active and important role in the Redevelop-

ment Agency since its inception in 1963, and has received

much publicity concerning his role in the Redevelopment

Agency throughout its history.

*As findings of fact are not necessary on a nonsuit (Mosk v. Schein-

berg, 52 Cal App.2d 154, 157), we treat the findings as pertaining to

the court’s pretrial determination that Weingarten was a public official

and a public figure. We also need not discuss in detail Weingarten’s

contention that the court abused its discretion in filing the findings after

the judgment. The record indicates that Weingarten made no objection

to the proposed findings and conclusions. The judgment was entered

on January 18, 1977; the findings and conclusions on February 11,

nunc pro tunc as of January 18, 1977. The court had authority to do

so and Weingarten was not prejudiced thereby (Norton v. City of Pa-

mona, 5 Cal.2d 54, 62-63; Kaliterna v. Wright, 94 Cal.App.2d 926,

935; Code Civ. Proc., §473).

—

Prior to publication of the subject articles’ in 1971, Wein-

garten was a member of the Democratic Central Committee

for Monterey County for approximately 10 years. and a

member of the State Central Committee for two years. In

1958, Weingarten was a candidate for the public office of

State Assembly and his name was suggested by Democratic

organizations as a candidate for the United States Congress

and the California State Senate.

Weingarten pled in his fifth amended complaint that he

was ‘‘public attorney.’’ His activities as city attorney, at-

torney for the Redevelopment Agency, and civic leader in

the community of Seaside and in the Monterey peninsula

area received extensive publicity in the Monterey Peninsula

Herald newspaper from 1967 to 1971. Because of his public

stature, Weingarten had significantly greater access to the

channels of communication than does an ordinary private

person.

At the time of the publication of the subject articles in

1971, Weingarten had assumed a role of especial promi-

nence in the affairs of the community of Seaside, and oc-

cupied a position of persuasive fame and notoriety in the

community of Seaside. Weingarten was discharged from his

position as city attorney for the City of Seaside in October

1970 by vote of the Seaside city council. Thereafter, he

served as the attorney for the Seaside Citizens For Better

Government, a corporation organized to initiate a recall of

the members of the Seaside city council who had voted for

his discharge. In relation to the recall movement in Seaside,

Weingarten also represented Bernard J. Dolan, Jr., in an

‘The publications involved are the story published on September 9,

1971, set forth in Appendix A; the editorial on September 14, 1971,

quoted in footnote 6 below, and the brief news story concerning Wein-

garten’s taxes published on October 1, 1971. As the court conceded

that the latter contained no defamatory material we need not quote it.

_. os

action filed against the City of Seaside in Monterey County

Superior Court, No. M 5020, entitled Dolan v. City of

Seaside. The recall movement in Seaside generated public

controversy in the community and received extensive pub-

licity in the local newspaper.

The recall movement, organized and promoted by the

corporation which Weingarten represented, successfully re-

called from office three of four members of the Seaside city

council who had voted to discharge him. By his represen-

tation of the recall organization, Weingarten voluntarily in-

jected himself into a public controversy in Seaside regarding

the recall election and thereby invited public attention and

comment.

After the discharge of Weingarten from the position of

city attorney in October 1970, that position remained vacant

and legal services were performed for Seaside by several

interim city attorneys. In August of 1971, after completion

of the recall election, the City of Seaside resumed its search

for a city attorney. On August 5, 1971, an article appeared

in the Monterey Peninsula Herald indicating that the Seaside

city council was resuming the search for a city attorney. On

September 9, 1971, the date of the publication of the first

subject article, the Seaside city attorney position was vacant

and applications for the position were being solicited by the

City of Seaside. The position of city attorney in Seaside

was a matter of lively public interest throughout 1971 and

rernained so on September 9, 1971. Propositions for further

change were abroad, and public interest in filling the va-

cancy created by the firing of Weingarten continued strong

throughout 1971.

Weingarten was drawn into the public controversy in

Seaside regarding the filling of the vacancy in the city at-

torney position because of his former position as Seaside

city attorney for 15 years, and because of his involvement

ae

ave)

as attorney for the organization which recalled three of the

four members of the Seaside city council who had voted to

discharge him.

The comments about Weingarten which appeared in the

subject articles relate to the following issues: |) Weingar-

ten’s involvement in the public controversy surrounding his

dismissal as city attorney and the filling of the vacancy

created thereby; 2) Weingarten’s involvement in the move-

ment to recall the members of the Seaside city council who

voted to discharge him; 3) Weingarten’s fitness to perform

the services of city attorney of the City of Seaside or attorney

for the Redevelopment Agency.

The above findings were supported by substantial evi-

dence. The court took judicial notice of a voluminous file

of newspaper articles concerning the Seaside city council

and Weingarten from 1968 to 1971.

In Rosenblatt v. Baer, supra, 383 U.S. 75, which in-

volved the former supervisor’ of a county recreation area,

the U.S. Supreme Court, at page 84, rejected state law

standards as the basis for determining who is a public of-

ficial. The court then indicated, at page 85, that it need not

precisely define the termn for the purpose of that case, and

then stated at pages 85-86, and 87: ‘‘The motivating force

for the decision in New York Times was twofold. We ex-

pressed ‘a profound national commitment to the principle

that debate on public issues should be uninhibited, robust,

and wide-open, and that [such debate] may well include

vehement, caustic, and sometimes unpleasantly sharp at-

tacks on government and public officials.’ 376 U.S., at 270.

*The court, at pages 87-88, acknowledged that the plaintiff might be

a public official but reserved the question for the trial court if a retrial

were sought. In Henry v. Collins, 380 U.S. 356, a per curiam opinion,

the U.S. Supreme Court assumed that one of the defendants, a county

attorney, was a ‘‘public official’ within the New York Times rule.

Es, Men

(Emphasis supplied.) There is, first, a strong interest in

debate on public issues, and, second, a strong interest in

debate about those persons who are in a position signifi-

cantly to influence the resolution of those issues. Criticism

of government is at the very center of the constitutionally

protected area of free discussion. Criticism of those re-

sponsible for government operations must be free, lest crit-

icism of government itself be penalized. It is clear, therefore,

that the ‘public official’ designation applies at the very least

to those among the hierarchy of government employees who

have, or appear to the public to have, substantial respon-

sibility for or control over the conduct of governmental

affairs. .

‘This conclusion does not ignore the important social

values which underlie the law of defamation. Society has

a pervasive and strong interest in preventing and redressing

attacks upon reputation. But in cases like the present, there

is tension between this interest and the values nurtured by

the First and Fourteenth Amendments. The thrust of New

York Times is that when interests in public discussion are

particularly strong, as they were in that case, the Consti-

tution limits the protections afforded by the law of defa-

mation. Where a position in government has such apparent

importance that the public has an independent interest in

the qualifications and performance of the person who holds

it, beyond the general public interest in the qualifications

and performance of all government employees, both ele-

ments we identified in New York Times are present'* and

the New York Times malice standards apply.’’'* (Emphasis

partially added.)

12

We are treating here only the element of public position,

since that is all that has been argued and briefed. We intimate

no view whatever whether there are other bases for applying

the New York Times standards—for example, that in a

particular case the interests in reputation are relatively in-

substantia! , because the subject of discussion has thrust him-

a” Se

self into the vortex of the discussion of a question of pressing

public concern. Cf. Salinger v. Cowles, 195 lowa 873, 889,

191 NW. 167, 173-174 (1922); Peck v. Coos Bay Times

Publishing Co., 122 Ore. 408, 420-421, 259 P. 307, 311-

312 (1927); Coleman v. MacLennan, 78 Kan. 711, 723-

724, 98 P. 281, 285-286 (1908); Pauling v. News Syndicate

Co., 335 F.2d 659, 671 (C. A. 2d Cir. 1964).”’

13

It is suggested that this test might apply to a night watch-

man accused of stealing state secrets. But a conclusion that

the New York Times malice standards apply could not be

reached merely because a statement defamatory of some

person in government employ catches the public’s interest;

that conclusion would virtually disregard society’s interest

in protecting reputation. The employee's position must be

one which would invite public scrutiny and discussion of

the person holding it, entirely apart from the scrutiny and

discussion occasioned by the particular charges in contro-

versy.

In Gertz v. Welch, supra, 418 U.S. 323, the court, in

distinguishing between private and public individuals, ob-

served at pages 343-345: **Public officials and public figures

usually enjoy significantly greater access to the channels of

effective communication and hence have a more realistic

opportunity to counteract false statements than private in-

dividuals normally enjoy. Private individuals are therefore

more vulnerable to injury, and the state interest in protecting

them is correspondingly greater.

‘*More important than the likelihood that private indi-

viduals will lack effective opportunities for rebuttal, there

is a compelling normative consideration underlying the dis-

tinction between public and private defamation plaintiffs.

An individual who decides to seek governmental office must

accept certain necessary consequences of that involvement

in public affairs. He runs the risk of closer public scrutiny

than might otherwise be the case. And society's interest in

the officers of government is not strictly limited to the formal

discharge of official duties. As the Court pointed out in

a

Garrison v. Louisiana, 379 U.S. 64, 77, the public's interest

extends to ‘anything which might touch on an official's

fitness for office. . . . Few personal attributes are more

germane to fitness for office than dishonesty, malfeasance,

or improper motivation, even though these characteristics

may also affect the official’s private character.’ ’’ (Empha-

sis added.)

Weingarten’s activities, set forth in the findings sum-

marized above, indicate all of the Rosenblatt and Garrison

criteria were met. As city attorney and attorney for the

Redevelopment Agency, he had substantial control over the

conduct of governmental affairs of Seaside. After his dis-

charge and the recall, the public had an independent interest

in anything that might touch on his fitness for that office

and his continued services to the Redevelopment Agency.°

*This was the thrust of Block’s following editorial published on

September 14, 1971:

THE WEINGARTEN CASE OUT IN THE OPEN

The point-by-point revelation in last Thursday’s Herald of the prolific

real estate and legal practice maneuverings of former Seaside City Atty.

Saul M. Weingarten should prompt that city’s urban redevelopment

agency — which continues to retain him as counsel — to reflect on the

type of advice it may be getting.

In all fairness to Weingarten, he has been credited with helping direct

some of Seaside’s major accomplishments in making the difficult tran-

sition from a World War II boom town into an orderly residential city.

But while Saul Weingarten was being good to Seaside, Seaside certainly

was being good to Saul Weingarten.

During his 15 years of part-time public service, according to The

Herald’s examination of the record, he amassed a fortune valued at

$1.5 million. He earned raore than $50,000 in some years for his public

employment as both city attorney and legal counsel for the redevel-

opment agency. The redevelopment plum alone has paid more than

$41,000 a year.

During all this profitable period, Weingarten was working his way

in and out of various legal predicaments involving charges of negli-

gence, malpractice and fraud from which he never has been completely

exonerated.

It was this questionable record and other dubious activities that finally

provoked the former city council of Seaside to fire him as city attorney.

In retrospect, the published record certainly vindicates the wisdom of

that council’s action.

ee eee

Needless to say, these included his involvements in matters

relating to real property and whether or not he had misused

either public trust for his own benefit or that of his personal

clients. We conclude that an appropriate balancing of free-

dom of expression against sanctity of reputation in the in-

stant case requires the conclusion reached by the trial court,

namely, that Weingarten was a ‘‘public official’’ within the

meaning of New York Times and Rosenblatt, both supra.

We note that the authorities in other jurisdictions agree

that city attorneys or attorneys performing similar duties are

‘*public officials’’ for the purpose of the New York Times

rule (Finkel v. Sun Tattler Co., Inc. (Fla.App. 1977) 348

So.2d 51 (former city attorney); Frick v. McEldowney

(1971) 275 N.E.2d 337 (attorney employed by a town to

render legal opinions on matter of town interest); Tunnell

v. Edwardsville Intelligencer, Inc. (1968) 241 N.E.2d 28,

rev. on other grounds, 252 N.E.2d 535; Ewald v. Roelofs

(1970) 256 N.E.2d 89 (municipal attorney conceded the

issue)).’

But incomprehensible as it may seem, the urban redevelopment

agency — whose members are appointed by one of Weingarten’s legal

clients, Mayor Lou Haddad — has never seen fit to do anything about

the recurring difficulties in which their chief adviser is from time to

time involved.

The fact that Weingarten’s brushes were civil rather than criminal

might work in his behalf were it not that the complaints against him

so directly reflect upon his integrity as a public attorney. The fact

remains that Seaside’s important urban redevelopment program is of-

ficially represented by an attorney whose standard of ethics has been

tried and found badly wanting.

Whatever the agency does at this late date, it will not be able to

eradicate the sorry public record of this case, which is now completely

out in the open. In most cities, a record similar to Weingarten’s would

have been cause for immediate dismissal, or at least suspension.

In Seaside, so far, only four city councilmen had the courage to do

anything about this mess — and three of them were subsequently re-

pudiated at the polls for their judgment.

"Zeck v. Spiro (1966) 276 N.Y.S.2d 395, the only contrary authority

(attorney for a sewer district not a public official) turned on the finding

that the statement did not involve official conduct rather than the status

of the individual.

a

As since the filing of the briefs in this case the U.S.

Supreme Court decided Wolston v. Reader’s Digest Assn..,

Inc., 61 L.Ed.2d 450, and Hutchinson v. Proxmire, 61

L.Ed.2d 411 (both decided June 26, 1979), we are con-

strained to discuss the question of whether Weingarten also

was a ‘‘public figure.’” The basis for the extension of the

New York Times privilege to the libel claims of public

figures was stated in the plurality opinion in Curtis Pub-

lishing Co. v. Butts, supra, 388 U.S., pages 147-148, as

follows: ‘‘From the point of view of deciding whether a

constitutional interest of free speech and press is properly

involved in the resolution of a libel question a rational dis-

tinction ‘cannot be founded on the assumption that criticism

of private citizens who seek to lead in the determination of

. . . policy will be less important to the public interest than

will criticism of government officials.’ Pauling v. Globe-

Democrat Publishing Co., 362 F.2d 188, 196.”’

In his concurring opinion, Chief Justice Warren said:

‘*Viewed in this context, then, it is plain that although they

are not subject to the restraints of the political process,

‘public figures,’ like ‘public officials,’ often play an influ-

ential role in ordering society. And surely as a class these

‘public figures’ have as ready access as ‘public officials’

to mass media of communication, both to influence policy

and to counter criticism of their views and activities. Our

citizenry has a legitimate and substantial interest in the

conduct of such persons, and freedom of the press to engage

in uninhibited debate about their involvement in public is-

sues and events is as crucial as it is in the case of ‘public

officials,’ The fact that they are not amenable to the re-

straints of the political process only underscores the legit-

imate and substantial nature of the interest, since it means

that public opinion may be the only instrument by which

ee eS

society can attempt to influence their conduct’ (p. 164).

(Emphasis added. )

In Gertz v. Welch, supra, 418 U.S. 323. the court noted

at page 345: *‘Those classed as public figures stand in a

similar position. Hypothetically, it may be possible for

someone to become a public figure through no purposeful

action of his own, but the instances of truly involuntary

public figures must be exceedingly rare. For the most part

those who attain this status have assumed roles of especial

prominence in the affairs of society. Some occupy positions

of such persuasive power and influence that they are deemed

public figures for all purposes. More commonly, those

classed as public figures have thrust themselves to the fore-

front of particular public controversies in order to influence’

the resolution of the issues involved. In either event, they

invite attention and comment’’ (emphasis added).

The facts as found by the trial court here indicate that

Weingarten thrust himself to the forefront of the public

controversy* that arose around his termination and was ac-

tively involved in influencing its resolution by his involve-

ment in the recall and his continuing representation of the

Redevelopment Agency as its chief local counsel. By such

voluntary and active participation, he relinquished his in-

*Wolston v. Reader's Digest Association, supra, 61 L.Ed.2d 450,

is distinguishable. Wolston, who had been interrogated about the ac-

tivities of Soviet intelligence agents in the United States, failed to

respond to a grand jury subpoena, subsequently pled guilty to contempt

charges, and was sentenced. These proceedings received considerable

newspaper publicity but Wolston then returned to relative obscurity

until 15 years later when a publisher named him as a Soviet agent. In

holding that Wolstdn was not a public figure, the U.S. Supreme Court

said at page 460: ‘*Petitioner’s failure to appear before the grand jury

and citation for contempt no doubt were ‘newsworthy.’ but the simple

fact that these events attracted media attention also is not conclusive

of the public figure issue. A private individual is not automatically

transformed into a public figure just by becoming involved in or as-

sociated with a matter that attracts public attention.”

terest in the protection of his own name.” Further here, since

Weingarten earned substantial amounts from his public as-

signments, there was sufficient concern about specific pub-

lic expenditures to make him a public figure. Hutchinson

v. Proxmire, supra, 61 L.Ed.2d 411, is therefore inapposite.

In Hutchinson, a scientist who engaged in federally funded

research received the *‘Golden Fleece Of The Month”’

award bestowed by a U.S. Senator. In rejecting a contention

that Hutchinson was a limited purpose public figure, the

court said at page 431: ‘‘Hutchinson did not thrust himself

or his views into public controversy to influence others.

Respondents have not identified such a particular contro-

versy; at most, they point to concern about general public

expenditures. But that concern is shared by most and relates

to most public expenditures; it is not sufficient to make

Hutchinson a public figure. If it were, everyone who re-

ceived or benefited from the myriad public grants for re-

search could be classified as a public figure — a conclusion

that our previous opinions have rejected. The ‘use of such

subject-matter classifications to determine the extent of con-

Stitutional protection afforded defamatory falsehoods may

too often result in an improper balance between the com-

peting interests in this area.’ Time, Inc. v. Firestone, supra,

at 456, 47 L.Ed.2d 154, 96 S.Ct 958.”’

We hold that the trial court also properly concluded that

Weingarten was a public figure.

Next, we turn to Weingarten’s contention that the trial

court applied the wrong siandard in granting the nonsuit.

*"We agree with the view recently expressed by Division One of this

court in Franklin v. Benevolent etc. Order of Elks, 97 Cal.App.3d 915,

at pages 928-930, that the broader definition previously suggested by

this court in Montandon v. Triangle Publications, Inc., 45 Cal.App.3d

938, 948, has been superseded by Gertz. supra, 418 U.S. 323, Time,

Inc. v. Firestone, 47 L.Ed.2d 154, and Wolston, supra.

mR, a

He asserts that following the concurring opinion of Justice

Wright in Wasserman v. Time, Inc. (D.C. Cir. 1970) 424

F.2d 920 (cert. den. 398 U.S. 940), the trial court judged

the credibility of witnesses and drew its own inferences

from the evidence. The record, however, indicates that the

court followed the more stringent rule of Guam Federation

of Teachers, Local 1581, A.F.T. v. Ysrael (9th Cir. 1974)

492 F.2d 438, which held that all inferences must be drawn

in favor of the plaintiff.

We acknowledge that the Wasserman rule was followed

in Bon Air Hotel, Inc. v. Time, Inc. (Sth Cir. 1970) 426

F.2d 858, 864-865. However, we find the reasoning of the

Ninth Circuit persuasive. Justice Duniway said in Guam

Federation, supra, at page 441: ‘‘When civil cases may have

a chilling effect on First Amendment rights, special care is

appropriate. Thus, a judicial examination at these stages of

the proceeding, closely scrutinizing the evidence to deter-

mine whether the case should be terminated in a defendant's

favor, provides a buffer against possible First Amendment

interferences. The Supreme Court has instructed trial courts

to ‘examine for [themselves] the statements in issue and the

circumstances under which they were made to see ...

whether they are of character which the principles of the

First Amendment . . . protect.’ To be unprotected, actual

malice must be shown with convincing clarity.” New York

Times, supra, 376 U.S. at 285-286, 84 S.Ct. at 728-729.

‘*However, with respect, we are not persuaded by the

second phase of Judge Wright’s analysis in Wasserman

which suggests that in deciding these motions, the trial court

should judge the credibility of witnesses and draw its own

inferences from the evidence. We think that in a libel case,

as in other cases, the party against whom a motion for

summary judgment, a motion for a directed verdict, or a

motion for a judgment notwithstanding the verdict is made

is entitled to have the evidence viewed in the light most

favorable to him and to all inferences that can properly be

drawn in his favor by the trier of fact. We think, too, that

in such cases it is not only not the duty of the judge, or of

this court of appeal, to weigh the credibility of the evidence,

or to draw inferences in favor of the moving party (except,

of course, when no contrary inference can legitimately be

drawn), but that neither the judge nor this court on appeal

has the authority to weigh credibility or to choose among

legitimate inferences in such cases.

‘‘The standard against which the evidence must be ex-

amined is that of New York Times and its progeny. But the

manner in which the evidence is to be examined in the light

of that standard is the same as in all other cases in which

it is claimed that a case should not go to the jury.”’

As the Ninth Circuit rule is also in accord with the usual

rule followed in this state for nonsuits, we conclude that the

trial court applied the correct standard.

Weingarten concedes that he must prove not only that the

publication was false but that it was knowingly so or was

circulated with reckless disregard for its truth or falsity (Cox

Broadcasting Corp. v. Cohn, supra, 420 U.S., p. 490), by

clear and convincing evidence (New York Times v. Sulli-

van, supra, 376 U.S. 254).

‘*Reckless disregard ‘cannot be fully encompassed in one

infallible definition’; rather, ‘its outer limits [must] be

marked out through case-by-case adjudication, . . . .’ (St.

Amant v. Thompson, supra, 390 U.S. 727, 730 [20 L.Ed.2d

262, 267].) It is clear, however, that it involves a stringent

and subjective standard. It is not measured by whether a

reasonably prudent person would have published, or would

have investigated before publishing. Rather, there must be

sufficient evidence to permit an inference that the defendant

—4--

must have, in fact, subjectively entertained serious doubts

as to the truth of his statement. (St. Amant v. Thompson,

supra, 390 U.S. at p. 731 [20 L.Ed.2d at p. 267]: Alioto

v. Cowles Communications, Inc., supra, 519 F.2d 777,

779; Montandon v. Triangle Publications, Inc. (1975) 45

Cal.App.3d 938, 947 [120 Cal.Rptr. 186], cert. den., 423

U.S. 893 [46 L.Ed.2d 126, 96 S. Ct. 193].) Actual malice,

under New York Times, concentrates on the defendant’s

attitude toward the truth or falsity of the material published,

and does not focus on the defendant’s attitude toward the

plaintiff. (Cantrell v. Forest City Publishing Co. (1974) 419

U.S. 245, 251-252 [42 L.Ed.2d 419, 426, 95 S.Ct. 465];

Carson v. Allied News Co., supra, 529 F.2d 206, 214.)

Where the defamatory statements made by the defendant

do not involve an element of ‘hot news’ and the need for

expeditious release is not present, reckless disregard for the

truth may be evidenced in part by failure to investigate

thoroughly and verify the facts.’’ (Widener v. Pacific Gas

& Electric Co., 75 Cal.App.3d 415, 434.)

Viewing the record in favor of Weingarten in the light

of his burden of proof as to Block’s attitude toward the truth

or falsity of the material published, the following pertinent

facts appear: Block actively took over management of the

Herald around August 1970, and changed the editorial staff.

After the change, the Herald opposed the recall.

L. N. Haddad, who was the Mayor of Seaside from 1966

to 1972, testified that in 1970, before Weingarten was fired

as city attorney, he was contacted by Block. Block wanted

to know why Haddad had so strongly defended Weingarten,

and urged Haddad to join the other members of the city

council and fire Weingarten as city attorney.

Block had become aware of Weingarten and his activities

after conversations with people in Seaside and after receiv-

ing letters from Oliver Murray, one of the recalled city

a, | =

council members. Block also received copies of some of

the documents in Parker v. Weingarten. In this matter,'°

Mrs. Parker was awarded damages for breach of trust and

malpractice as Weingarten’s actions caused her to lose her

$4,045 equity in a parcel of real property. She had sought

his help to prevent foreclosure. Weingarten arranged the

refinancing which included a $5,000 third deed of trust at

10 percent interest to Allnav, Inc., a real estate investment

group. Weingarten was a founder and shareholder of Allnav,

acted as its attorney, and became the trustee under the third

deed of trust. He did not reveal his interest in, and activities

for, Allnav to Mrs. Parker. In the transaction, he also acted

as trustee for both Mrs. Parker and her son, although their

interests were adverse. After a court trial awarding Mrs.

Parker $21,301.78, she consented to a reduction to $12,880

to avoid a conditional order granting a new trial; the re-

duction eliminated $3,421.78 general damages and $5,000

exemplary damages for fraud. The case received extensive

publicity at all stages and apparently was one of the factors

that led to Weingarten’s termination as city attorney.

Block requested that a reporter be sent ona special as-

signment from another of its papers, the Pittsburgh Press,

which was then on strike. M. Jaques, a reporter with over

25 years of experience, arrived in Monterey late in the

summer of 1971 and spent a month investigating the matter

before deciding to write an article. He researched court

records, deeds, the Seaside city budget, Redevelopment

Agency records, the Monterey County Grantor-Grantee In-

dex, the financial statements and records of Allnav Cor-

"We have based our summary on the unpublished opinion of this

court which slightly modified and affirmed the reduced judgment in

favor of Mrs. Parker on November 4, 1969: the state Supreme Court

subsequently denied a hearing.

Pm, «ee

poration, the Monterey Superior Court files, and the Herald

**morgue.’’

In addition to the city manager, city officials and the

recalled council members, Jaques talked to Mr. Hoss, who

had represented Mrs. Parker, and one of Hoss’s partners,

Mr. Etienne. Jaques also interviewed: 1) Mrs. Schacht, who

was the adverse party in another publicized case in which

Weingarten was the defendant after he represented her for-

mer husband; 2) some of the dissident shareholders of Allnav

who disagreed with Weingarten about its management and

succeeded in dissolving the corporation; 3) the Black plain-

tiff in a housing discrimination action in which Weingarten

represented the Oriental defendants; 4) Mrs. Charbonneau

whose sale of her property to the Redevelopment Agency

was delayed because Weingarten had an unrecorded deed

to the property obtained in a judgment against the former

owner.

Fred Sorri, who was city editor of the Herald for 1'4

years and had been a reporter since 1955, was asked to give

Jaques some background on Weingarten. Sorri indicated

that Weingarten had done a good job and never lost a case

for the city, survived all of the controversies with the city

council, and was involved in the unpopular activity of ob-

taining property by eminent domain for the Redevelopment

Agency. When Sorri indicated that Weingarten should be

interviewed, Mr. Block said ‘‘No.’’ In reply to a question

on direct examination,'' Sorri stated that Jaques had been

brought out as a “‘hatchet man’’ for Block on the Weingarten

story but he immediately qualified his answer to indicate

that Block would not have brought Jaques out if Block had

not had good reason to believe (from sources unknown to

Sorri) that there was a story. Sorri’s testimony thus estab-

''Sorri was a witness for Weingarten.

wn, Yom

lished Block’s lack of malice toward Weingarten. Sorri’s

statement that there was no “‘hot news element’’ or ‘‘news

hook’ to the September 9, 1971, story, is also of little

consequence, given the thorough and lengthy investigation

conducted by Jaques.

Nor, contrary to Weingarten’s contention, was there any

requirement that Jaques also talk to him to obtain his version

of the events described. Rosenbloom v. Metromedia, supra,

403 U.S. 29, specifically so held at page 56. Jaques was

also not required to provide an objective picture (New York

Times Company v. Connor (Sth Cir. 1966) 365 F.2d 567,

576). Inaccuracies in reporting judicial proceedings do not

constitute actual malice (Time, Inc. v. Pape, 401 U.S. 279).

Factual error alone, also will not suffice (Fadell v. Min-

neapolis Star & Tribune Co., Inc. (7th Cir. 1977) 557 F.2d

107). Recklessness is not established by showing that the

reporting in question was speculative or even sloppy (Oliver

v. Village Voice, Inc. (S.D. N.Y. 1976) 417 F.Supp. 235,

238).

It may be argued that some of Block’s activities were

indicative of ill will toward Weingarten. Civil Code section

48a, subdivision 4(d), unlike the New York Times standard,

includes in its definition of malice **hatred or ill will toward

the plaintiff.’’ However, under that section, such a state of

mind does not constitute malice if occasioned by a good

faith belief on the part of the defendant in the truth of the

publication. Even under the New York Times standard, ill

will does not constitute proof of knowledge of falsity

(Hotchner v. Castillo-Puche, supra, 551 F.2d, p. 913).

An assertion that cannot be proved false cannot be held

libelous (Gregory v. McDonnell Douglas Corp., 17 Cal.3d

596, 600-601). A writer cannot be sued for simply express-

ing his opinion of another person, however unreasonable

ate, a

the opinion or vituperous the expression of it may be (Gertz

v. Welch, supra, 418 U.S., pp. 339-400).

We turn in detail to the allegedly **false and reckless”’

Statements in the order in which they appeared in the Sep-

tember 9 article of which Weingarten complains.

The reference to the possible return of Weingarten as city

attorney for Seaside was not defamatory. In any event,

Jaques indicated he based this statement on sources at City

Hall and the city manager. Although the latter did not want

to be quoted and did not remember making such a statement,

Block’s lack of malice is demonstrated by the legitimacy

of the sources of information, as well as the extended con-

troversy surrounding Weingarten’s dismissal, the recall, and

the length of time the city took to find a replacement.

As to the statement that the city attorney’s position was

a $20,000 a year part-time legal job, the record indicates

that the statement was accurate as of the time of the search,

although Weingarten had been paid around $10,000-$12,-

000 annually during his tenure.

As to the innuendos that Weingarten misused his public

positions to amass a fortune, the record, admittedly, con-

‘tains no evidence indicating that anything of the kind had

in fact occurred. However, we are not dealing with the

correctness of the statements made, but the means by which

Jaques obtained the informatien and the basis for the state-

ments. Even an author whose function is to gather facts

need not necessarily verify his information (Fadell v. Min-

neapolis Star & Tribune Co., supra, 425 F.Supp., p. 1085).

The record indicates that at the time of his investigation,

Jaques had no reason to disbelieve any of his sources. Erh-

man and Murray both charged Weingarten with making

unfair and illegal profits in certain real estate transactions.

The First Amendment protects the reporting of charges

ae, es

against a public official or figure ‘‘regardless of the re-

porter’s private views regarding their validity. [Citations. |

What is newsworthy about such accusations is that they

were made. We do not believe that the press may be required

under the First Amendment to suppress newsworthy state-

ments merely because it has serious doubts regarding their

truth. Nor must the press take up cudgels against dubious

charges in order to publish them without fear of liability for

defamation. [Citation.] The public interest in being fully

informed about controversies that often rage around sensi-

tive issues demands that the press be afforded the freedom

to report such charges without assuming responsibility for

them’’ (Edwards v. National Audubon Society, Inc. (2d

Cir. 1977) 556 F.2d 133, 120; Pierce v. Capital Cities

Communications, Inc. (3d Cir. 1978) 576 F.2d 495, 498).

Jaques’ admission that his use of the term ‘insider in-

formation . . . may have been incorrect,’’ at most, is an

indication of carelessness. Weingarten did not dispute the

fact and the $1,500,000 estimate of his wealth, but indicated

it was the result of some early and fortunate real estate

investments. The statement that Weingarten ‘‘earned more

than $50,000 in some years’’ from his public employment

as both city attorney and legal counsel for the Redevelop-

ment Agency, was apparently true as to one year, in which

it is not disputed that Weingarten received over $40,000

from the Redevelopment Agency. Thus, the inference that

these earnings occurred in more than one year is mere neg-

ligence.

As to Weingarten’s ‘‘prolific real estate practice,’’ the

record indicates that Weingarten testified that *‘real property

investments’’ were one of his activities. Jaques based his

statement on the Grantor-Grantee Index, other official rec-

ords, and a number of local attorneys who were identified.

Several other attorneys named by Jaques were the source

a

of the statement that some ‘‘found difficult to follow in

business transactions’’ Weingarten’s recollections of earlier

oral agreements.

As to the statements concerning Weingarten’s relations

with the 50 percent Black population of Seaside, the record

indicates a number of instances where Weingarten’s stand

as city attorney or for the Redevelopment Ageny, was op-

posed by a segment of the Black community. For example,

in 1969 the Redevelopment Agency was the defendant in

a federal action charging racial discrimination brought by

the Seaside Low Cost Housing Corporation which was rep-

resented by Mrs. Van Hook, the same attorney who rep-

resented the plaintiffs in the residential housing case dis-

cussed in the article. In 1969-1970, there was a controversy

concerning the Seaside real estate disclosure ordinance as

one council member believed it could be misused to foster

racial discrimination. Jaques indicted that this portion of the

article was based in part on a meeting he had with some of

the dissident members of the Black community at the home

of Mrs. Carey, one of the recalled city council members.

There was also no *‘deliberate falsehood or recklessness’”’

in statements pertaining to Weingarten’s conduct as an of-

ficer, shareholder, and attorney for Allnav, Inc. The proxy

fight and subsequent dissolution of Allnav are not disputed.

Jaques met with former Allnav associates Hartmann and

Gravelle, who both believed at that time that Weingarten,

who was in total control of the corporation’s assets, had

unjustifiedly taken $30,000 in fees. They described his ac-

tivities, the mysterious disappearance and reappearance of

some of the corporate records, and their reliance on the pro-

forma balance sheet. |

As to the comments and innuendos concerning the

Schacht litigation, the record also indicates that Jaques and

Block believed them to be true. Mrs. Schacht and her at-

torney, Mr. Shostak, told Jaques that Weingarten forced her

to accept a reduction in the judgment against her former

husband. Weingarten personally purchased $60,000 of Mr.

Schacht’s savings and loan association stock and made the

availability of Mr. Schacht’s Carmel Valley lots known to

the Allnav investment committee. Weingarten had a power

of attorney to sell or lease Mr. Schacht’s Pebble Beach

house and received Mr. Schacht’s mail. The description of

the Parker litigation also strikes us as an accurate one. As

to the comments concerning the bar association, Mr. Etienne

stated that at the time of the Parker case, as well as at the

time of the instant trial, he believed Weingarten should have

been disciplined by the bar association.

The statement that Weingarten’s office ‘‘sometimes

served as a meeting place for rump sessions of the City

Council’” was also substantially true. Jaques acquired this

information from several named individuals and had it con-

firmed by others. Sorri stated in his depositions that when

he covered Seaside city council meetings, he customarily

attended semi-closed sessions of the council which preceded

the regular meetings, with the understanding that he was

not to directly quote anything that was said.

‘

As to the statement ‘‘where there is smoke, there may

be fire,’’ the record merely indicates that at the trial five

years later, the person to whom it was attributed did not

remember making it at all. Jaques stated that the statement

was attributable to that person, who was assured that he

would not be mentioned in the article. Thus, there was no

clear and convincing evidence of known falsity.

When the evidence adduced to show malice or reckless-

ness in the instant case is measured against the clear and

convincing standard, it is obvious that it meets none of the

stringent requirements for actionable libel of a public of-

ficial. Every statement has been traced to an identifiable

source. There was no evidence that any of the sources denied

giving the questioned information to Jaques or that Jaques

either knew or had clear grounds to suspect that the state-

ments might be false. All that the evidence reveals is that

Jaques relied on one or two persons for each statement; two

sources did not remember the statements attributed to them;

others were actively involved in the events described in the

article and had a bias against Weingarten. None of the

Statements under the circumstances constituted ‘‘reckless

disregard for the truth.”’

Although accuracy and objectivity in reporting are goals

for which all responsible news media strive, the protection

of the First Amendment is not limited to statements whose

validity are beyond question or which reflect an objective

picture of the reported events. While verification of the facts

remains an important reporting standard, a reporter, without

a ‘‘high degree of awareness of their probable falsity’’ may

rely on statements made by a single source, even though

they reflect only one side of the story without fear of libel

prosecution by a public official (New York Times Company

v. Connor, supra, 365 F.2d, p. 576).

We conclude therefore that the court properly granted the

nonsuit as to the causes of action for libel. Weingarten

acknowledges that if the libel count fails, the cause of action

for intentional infliction of emotional distress must also fail.

(Lerette v. Dean Witter Organization, Inc., 60 Cal. App.3d

573, 579.)

Weingarten’s contention concerning the survival of the

causes of action for conspiracy to commit libel is without

merit. As Block’s conduct was privileged under the New

York Times rule, there was no wrongful act on which a

conspiracy count could be based. (Agnew v. Parks, 172

Cal.App.2d 756, 762; Widdows v. Koch, 263 Cal.App.2d

228. 234.)

ae, | De

As to the cause of action for interference with prospective

advantage, unjustifiable and wrongful conduct is also one

of the requisite elements (Scott v. McDonnell Douglas

Corp., 37 Cal.App.3d 277, 292). Thus, the nonsuit was

also properly granted as to that cause of action.

The judgment of nonsuit is affirmed; the purported appeal

from the order of November 24, 1976, is dismissed.

CERTIFIED FOR PUBLICATION.

TAYLOR, P.J.

We Concur:

ROUSE, J.

MILLER, J.

i

APPENDIX ‘*A”’

WEINGARTEN RETURN AS CITY ATTORNEY

POSSIBILITY IN SEASIDE

By Milton Jaques

Herald Staff Writer

Seaside City Council, which fired City Atty. Saul M.

Weingarten last year, may want to hire him back if appli-

cants continue to shun the $20,000 a year part-time legal

job.

That’s the way some insiders in Seaside’s gleaming and

unpaid-for city hall view the desperate search to fill the

vacant post.

A Sept. 15 target date for picking a successor may soon

go down the drain, it was learned. Applications are coming

in slowly, with fewer than 10 in hand.

Push Search

City Manager Milton Farrell is pushing the search

throughout California. Realistically, however, he expects

the successful candidate will probably be a lawyer who is

now engaged in private practice on the Monterey Peninsula.

As the city’s attorney since 1955, shortly after its incor-

poration, Weingarten had a hand in the rapid growth and

development of the community outside the fence of Fort

Ord.

There, in 15 years, he amassed a fortune valued at

$1,500,000. He earned more than $50,000 in some years

from his public employment as both city attorney and legal

counsel for the Redevelopment Agency of the City of Sea-

side. The redevelopment plum has paid more than $41,000

a year.

After firing Weingarten last year, the city tried to hire

a new attorney, but out of at least 40 applicants, not one

oo

was engaged. Legal advice in the interim has been furnished

by several local attorneys. The city looks upon the job as

requiring about half the time of a busy lawyer.

Weingarten, at the same time he was guiding and advising

the city with its problems, also engaged in a prolific real

estate and legal practice. After leaving the Navy as an officer

at the Postgraduate School in Monterey, he quickly gained

a reputation for diligence and intelligence.

Later, some found him difficult to follow in business

transactions, particularly in his recollections of earlier verbal

agreements.

Backing

Although enjoying solid backing from Seaside Mayor

Louis N. Haddad, whom he serves as personal attorney,

also, Weingarten encountered considerable opposition from

some segments of the local populace. Black residents were

disturbed by his appearances in behalf of a local landlord

against whom a civil rights discrimination case was brought

by a black couple.

Minority groups equated Weingarten’s public stance as

a city attorney and as legal counsel to a federal housing

program as requiring action in their behalf, instead of legal

opposition.

Weingarten also antagonized former associates of the

Navy with whom he had banded together to form a land

development group known as All-Nav, Inc. The group, put

together about 1960 as a small time and friendly operation,

came upon hard times in the middle 1960s.

Dissidents waged a proxy fight in the tiny corporation of

about 130 members, who bought stock at $10 a share. The

dissidents took over the corporation after a number of land

deals made by Weingarten turned sour and landed in court.

The dissidents discovered that Weingarten had been taking

a,” aes

out as much as $30,000 a year in legal and consultant fees.

This upset the naval people who thought they were part of

a small, informal deal to make a little money in land, with

no intention of paying big league salaries to officers. Wein-

garten shortly before his ouster was president, a member

of the board and legal counsel to All-Nav, Inc.

As city attorney during Seaside’s infancy, Weingarten is

credited with helping direct the city’s major accomplish-

ments, in growing from a World War II boom town into

an orderly residential and commercial city. He handled legal

details for the capital improvement program, including the

paving of streets, the $20 million urban renewal program,

and construction of the city’s gleaming offices at Harcourt

avenue and Canyon Del Rey boulevard.

Surgery

The city council since it fired Weingarten has undergone

radical surgery. Three of four members—Gerald McGrath,

Oliver Murray and Pearl Carey—were retired in a recall

movement. Only Councilman Stephen Ross of the group

voting to oust Weingarten remains.

The urban redevelopment agency, composed of members

recommended by the mayor and approved by the council,

acts autonomously in selecting its own agency staff and

legal counsel. A friendly council, of course, is likely to

approve the mayor’s selections.

A friendly city council, too, could go along with the

mayor who was outvoted in his opposition to the ousting

of Weingarten by last year’s council.

Weingarten’s biggest problem with combined public and

private practice came in a series of suits brought against

him over the past five years. Of these, only one had pre-

viously been disclosed in the press. In the legal battles, two

court decisions ruled against Weingarten, and one, brought

=

against him for fraud and to set aside fraudulent convey-

ances, was settled in secret.

And although Haddad says Weingarten never lost a case

while serving as city attorney. in his private practice, Wein-

garten’s court record shows three substantial setbacks.

Actually, Seaside druggist Fred Mitchell says he bested

Weingarten in a case involving the right of customers to

park at the Fremont Pharmacy’s curbside. In the dispute,

it developed that the State of California, and not the city

of Seaside, as represented by Weingarten, controlled the

regulation of parking on the busy thoroughfare.

A 1965 suit brought by Mrs. Elizabeth L. Schacht of San

Francisco against Weingarten probably set back the former

Seaside city attorney as decisively as anything.

Secret Settlement

Tried in 1969 before a jury in superior court, it was settled

secretly after a day and a half of testimony. It was learned

that Weingarten paid between $40,000 and $50,000 to close

the case.

He had been brought into court accused of helping John

H. Schacht, formerly of Pebble Beach, skip town to avoid

paying a $216,000 judgment to his former wife.

In 1964, Schacht liquidated his Monterey County assets

and moved to Canada in the interval between Judge Anthony

Brazil’s announcement of the judgment from the bench, and

the formal recording of ruling.

In attempting to find Schacht, investigators ran into Wein-

garten serving as a lawyer for him. Weingarten was accused

of assisting in the rapid liquidation by personally buying

$60,000 worth of savings and loan association stock from

Schacht. He was also accused of getting All-Nav, Inc., the

land development group, to purchase Schacht’s two building

lots in Carmel Valley.

—_38—

Schacht handed the keys to his Pebble Beach house to

Weingarten, with orders to lease or sell. Weingarten’s Sea-

side office, which sometimes served as a meeting place for

rump sessions of city council, became the *‘mail drop’ for

the vanished Schacht.

Weingarten was implicated in the case because the Cal-

ifornia Code for attorneys prohibits advising and assisting

clients to avoid court judgments. Weingarten in his defense

said Schacht had told him of intentions to appeal the judg-

ment with a need for cash in case he had to comply with

the court order.

Pleads ‘Poor’

The wealthy Weingarten, who also owns two houses in

Pebble Beach, including one he rents to Seaside City Man-

ager Milton Farrell, pleaded poverty in seeking to pay the

secret settlement.

After his first offer of $1,000 a month for 50 months was

accepted, he returned with another offer of a flat $40,000,

or a 20 per cent cut, for cash. This was also accepted.

Mrs. Diane Charbonneau, who lived on Mingo street in

Seaside in the early 1960s with her four children, also fought

Weingarten successfully. She retained control of her

property through litigation after the urban redevelopment

lawyer, using insider information on land sales, sought to

claim it as his own.

Barred

A superior court judge cleared the way for Mrs. Char-

bonneau to sell her property to the redevelopment project,

_ rejecting all claims of Weingarten to the property. The court

barred Weingarten from interfering with the sale of her

property.

Years earlier, Weingarten had obtained a sheriff's deed

to the property in a judgment against a former owner. He

a, ee

had not recorded the deed at the courthouse in Salinas, and

a title search by Mrs. Charbonneau’s attorney revealed that

legal title had remained with a Southern California woman.

Complicating the legal case was the fact that Weingarten

had also taken a third deed of trust against the property after

he had served as Mrs. Charbonneau’s attorney in a divorce.

His fee was $250, plus $25 costs.

Third Case

The third losing case Weingarten encountered in his pri-

vate practice involved charges of fraud, malpractice and

negligence in his trusteeship of property on Casanova street,

Monterey, on behalf of a widow.

Lawyers still argue whether the Seaside attorney was

actually found guilty of fraud in the suit brought by Mrs.

Marie Parker for the recovery of her property. The news-

papers carried the story both ways.

Weingarten appealed Judge Hugh Donovan’s ruling in

superior court in Monterey County to the California Su-

preme Court, but to no avail. The only modification in the

original ruling was a reduction in damages paid to the widow

who had been wiped out of her $21,000 equity by the trans- —

actions of her attorney, her son, and his real estate partner.

The judge, horrified by the legal tangle, stated from the

bench:

‘*You see, there is the viciousness of the whole thing. He

(Weingarten) was acting for both parties with adverse in-

tesests. . .

‘And I reluctantly, I assure I reluctantly rendered this

judgment because I thought there was a violation of the

State Bar Act there.”’

In searching for a new city attorney, the Seaside City

Council will not have the advice and assistance of the bar

association. The advice is sought, for instance, by the U.S.

iin.

Senate when it is asked to confirm presidential appointments

to the federal bench.

Formal compiaints lodged with the bar association against

the Seaside public official have been turned aside as incon-

sequential. In private conversation, local attorneys admit

they are aghast at the problems created for them by the

antics of their colleagues in the bar.

‘*Sure, he’s giving us a bad name,” said one.

‘**“Where there’s smoke, there may be fire,’’ one wise and

judiciously-inclined older member observed.

The city council, meantime, hopes to proceed with filling

the attorneyship, and has not barred Weingarten from further

consideration.

ee

APPENDIX D.

Court of Appeal of the State of California, in and for the

First Appellate District, Division Two.

Saul M. Weingarten, Plaintiff and Appellant, vs. Paul

Block, et al., Defendants and Respondents. 1/Civil No.

42705, Monterey Superior Court No. M5520.

Filed: Mar. 14, 1980.

By The Court:

Petition for Rehearing is denied.

Rouse, J. Acting.P.J.

pal, PA

APPENDIX E.

Clerk’s Office, Supreme Court

4250 State Building

San Francisco, California 94102

Apr. 10, 1980

I have this day filed Order Hearing Denied.

In re: 1/Civil No. 42705, Weingarten vs. Block, et al.

Respectfully,

Clerk.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.