Petition — Weingarten v. Block
Supreme Court brief1980
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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.