Appendix — National Enquirer, Inc. v. Burnett
Supreme Court brief1984
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Supreme Court of the United Y Biater
OCTOBER TERM, 1983
NATIONAL ENQUIRER, INC.,
Appellant,
Vv.
CAROL BURNETT,
Appellee.
On Appeal from the Califorinia Court of Appeal,
Second Appellate District
APPENDIX TO
STATEMENT AS TO JURISDICTION
JOHN G. KESTER *
HAROLD UNGAR
Hill Building
Washington, D.C. 20006
(202) 331-3069
Attorneys for Appellant
Of Counsel:
WILLIAMS & CONNOLLY
Hill Building
Washington, D.C. 20006
* Counsel of Record
od
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, 0.C. 20001
APPENDIX
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. Opinion of the California Court of Appeal, Second
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APPENDIX A
Opinion and Judgment of the California Court of Appeal,
Second Appellate District
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
2D Civ. No. 66447
(Super.Ct.No. C157213)
CAROL BURNETT,
Plaintiff and Respondent,
V.
NATIONAL ENQUIRER, INC.,
Defendant and Appellant.
[Court of Appeal-Second Dist., Filed, July 18, 1983,
Clay Robbins, Jr., Clerk]
APPEAL from a judgment of the Superior Court of
Los Angeles County. PETER S. SMITH, Judge. The
judgment is affirmed except that the punitive damage
award herein is vacated and the matter is remanded for
a new trial on that issue only, provided that if respond-
ent shall, within 30 days from the date of our remittitur,
file with the clerk of this court and serve upon appellant
a written consent to a reduction of the punitive damage
award to the sum of $150,000 the judgment will be modi-
2a
fied to award respondent punitive damages in that
amount, and as so modified affirmed in its entirety.
WILLIAMS & CONNOLLY, By: JOHN G. KESTER,
HAROLD UNGAR; SELVIN & WEINER, By: PAUL P.
SELVIN, for Defendant and Appellant.
BARRY B. LANGBERG, STEPHEN S. MONROE,
PAUL S. ABLON, RICHARD P. TOWNE, HAYES &
HUME, for Plaintiff and Respondent.
JACK C. LANDAU, JUDY D. LYNCH; PIERSON,
BALL AND DOWD, By: J. LAURENT SCHARFF, for
Amici Curiae.
On March 2, 1976, appellant caused to appear in its
weekly publication, the National Enquirer, a “gossip
column” headlined “Carol Burnett and Henry K. in
Row,” wherein a four-sentence item specified in its en-
tirety that:
“In a Washington restaurant, a boisterous Carol
Burnett had a loud argument with another diner,
Henry Kissinger. Then she traipsed around the
place offering everyone a bite of her dessert. But
Carol really raised eyebrows when she accidentally
knocked a glass of wine over one diner and started
giggling instead of apologizing. The guy wasn’t
amused and ‘accidentally’ spilled a glass of water
over Carol’s dress.”
Maintaining the item was entirely false and libelous,'
an attorney for Ms. Burnett, by telegram the same day
and by letter one week later, demanded its correction or
retraction “within the time and in the manner provided
1 “Libel is a false and unprivileged publication by writing, print-
ing, picture, effigy, or other fixed representation to the eye, which
exposes any person to hatred, contempt, ridicule, or obloquy, or
which causes him to be shunned or avoided, or which has a tendency
to injure him in his occupation.” (Civ. Code, § 45.)
3a
for in Section 48(a) of the Civil Code of the State of
California,” failing which suit would be brought by his
client {respondent herein], a well known actress, comedi-
enne and show-business personality.
In response to the demand, appellant on April 6, 1976,
published the following retraction, again in the National
Enquirer’s gossip column:
“An item in this column on March 2 erroneously
reported that Caro] Burnett had an argument with
Henry Kissinger at a Washington restaurant and
became boisterous, disturbing other guests. We un-
derstand these events did not occur and we are sorry
for any embarrassment our report may have caused
Miss Burnett.”
On April 8, 1976, respondent, dissatisfied with this
effort in mitigation, filed her complaint for libel in the
Los Angeles Superior Court. Trial before a jury resulted
in an award to respondent of $300,000 compensatory dam-
ages and $1,300,000 punitive damages. The trial court by
remittitur thereafter rendered its judgment in respond-
ent’s favor for $50,000 compensatory and $750,000 puni-
tive damages. This appeal! followed.
As formulated by appellant, apart from two claimed
irregularities occurring upon the trial, the principal is-
sues here are whether the National Enquirer is excluded
from the protection afforded by Civil Code section 48a,’
2“$ 48a. Libel in newspaper; slander by radio broadcast.
“1. Special damages; notice and demand for correction. In any
action for damages for the publication of a libel in a newspaper,
or of a slander by radio broadcast, plaintiff shall recover no more
than special damages unless a correction be demanded and be not
published or broadcast, as hereinafter provided. Plaintiff shall
serve upon the publisher, at the place of publication or broadcaster
at the place of broadcast, a written notice specifying the statements
claimed to be libelous and demanding that the same be corrected.
Said notice and demand must be served within 20 days after knowl-
4a
and whether the damage award and penalty specified in
the judgment can stand.
edge of the publication or broadcast of the statements claimed to
be libelous.
“2. General, special and exemplary damages. If a correction be
demanded within said period and be not published or broadcast in
substantially as conspicuous a manner in said newspaper or on
said broadcasting station as were the statements claimed to be
libclous, in a regular issue thereof published or broadcast within
three weeks after such service, plaintiff, if he pleads and proves
such notice, demand and failure to correct, and if his cause of
action be maintained may recover general, special and exemplary
damages; provided that no exemplary damages may be recovered
unless the plaintiff shall prove that defendant made the publication
or broadcast “with actual malice and then only in the discretion
of the court or jury, and actual malice shall not be inferred or
presumed from the publication or broadcast.
“3. Correction prior to demand. A correction published or
broadcast in substantially as conspicuous a manner in said news-
paper or on said broadcasting station as the statements claimed
in the complaint to be libelous, prior to receipt of a demand there-
for, shall be the same force and effect as through such correction
had been published or broadcast within three weeks after a demand
therefor.
“4. Definitions. As used herein, the terms ‘general damages,’
‘special damages,’ ‘exemplary damages’ and ‘actual malice,’ are de-
fined as follows:
“(a) ‘General damages’ are damages for loss of reputation,
shame, mortification and hurt feelings;
“(b) ‘Special damages’ are all damages which plaintiff alleges
and proves that he has suffered in respect to his property, business,
trade, profession or occupation, including such amounts of money
as the plaintiff alleges and proves he had expended as a result of the
alleged libel, and no other;
“(c) ‘Exemplary damages’ are damages which may in the dis-
cretion of the court or jury be recovered in addition to general and
special damages for the sake of example and by way of punishing
a defendant who has made the publication or broadcast with actual
malice;
“(d) ‘Actual malice’ is that state of mind arising from hatred or
ill will toward the plaintiff; provided, however, that such a state of
mind occasioned by a good faith belief on the part of the defendant
in the truth of the libelous publication or broadcast at the time it is
published or broadcast shall not constitute actual malice.”
5a
Prior to addressing the merits of appellant’s conten-
tions and in aid of our disposition, we set out the follow-
ing further facts pertaining the publication complained
of and descriptive of the nature and character of the
National Enquirer, which were adequately established in
the proceedings below.
On the occasion giving rise to the gossip column item
hereinabove quoted, respondent, her husband and three
friends were having dinner at the Rive Gauche restaurant
in the Georgetown section of Washington, D.C. The date
was January 29, 1976. Respondent was in the area as a
result of being invited to be performing guest at the
White House. In the course of the dinner, respondent
had two or three glasses of wine. She was not inebriated.
She engaged in banter with a young couple seated at a
table next to hers, who had just become engaged or were
otherwise celebrating. When curiosity was expressed
about respondent’s dessert, apparently a chocolate souffle,
respondent saw to it the couple were provided with small
amounts of it on plates they had passed to her table for
the purpose. Perhaps from having witnessed the gesture,
a family behind respondent then offered to exchange some
of their baked alaska for a portion of the souffle, and
they, too, were similarly accommodated. As respondent
was later leaving the restaurant, she was introduced by a
friend to Henry Kissinger, who was dining at another
table, and after a brief conversation, respondent left with
her party.
There was no “row” with Mr. Kissinger, nor any
argument between the two, and what conversation they
had was not loud or boisterous. Respondent never
“traipsed around the place offering everyone a bite of
her dessert,” nor was she otherwise boisterous, nor did
she spill wine on anyone, nor did anyone spill water on
her and there was no factual basis for the comment she
“* * * started giggling instead of apologizing.”
6a
The impetus for what was printed about the dinner
was provided to the writer of the item, Brian Walker, by
Couri Hays [sic], a freelance tipster paid by the Na-
tional Enquirer on an ad hoc basis for information sup-
plied by him which was ultimately published by it, who
advised Walker he had been informed respondent had
taken her Grand Marnier souffle around the restaurant
in a boisterous or flamboyant manner and given bites of
it to various other people; that he had further but un-
verified information respondent had been involved in the
wine-water spilling incident; but that, according to his
sources, respondent was “specifically, emphatically” not
drunk. No mention was made by Hays [sic] of anything
involving respondent and Henry Kissinger.
Having received this report, Walker spoke with Steve
Tinney, whose name appears at the top of the National
Enquirer gossip column, expressing doubts whether Hays
could be trusted. Tinney voiced his accord with those
doubts. Walker than asked Gregory Lyon, a National En-
quirer reporter, to verify what Walker had been told by
Hays [sic]. Lyon’s inquiry resulted only in his verifying
respondent had shared dessert with other patrons and
that she and Kissinger had carried on a good natured
conversation at the restaurant.
In spite of the fact no one had told him respondent
and Henry Kissinger had engaged in an argument, that
the wine-water spilling story remained as totally un-
verified hearsay, that the dessert sharing incident was
only partially bolstered, and that respondent was not
under any view of the question inebriated, Walker com-
posed the quoted item and approved the “row” headline.
The National Enquirer is a publication whose mast-
head claims the “Largest Circulation Of Any Paper in
America.” It is a member of the American Newspaper
Publishers Association. It subscribes to the Reuters News
Service. Its staff call themselves newspaper reporters.
It describes its business as “newspaper” in its filings
Ta
with the Los Angeles County Assessor and in its appli-
cations for insurance. A State Revenue Department has
ruled it qualifies as a newspaper and is thus exempt
from sales and use tax. The United States Department
of Labor describes it as “belonging to establishments
primarily engaged in publishing or printing and publish-
ing newspapers.”
By the same token the National Enquirer is designated
aS a magazine or periodical in eight mass media direc-
tories and upon the request and written representation
of its general manager in 1960 that “In view of the
feature content and general appearance [of the publica-
tion], which differ markedly from those of a newspaper
* * *” its classification as a newspaper was changed to
that of magazine by the Audit Bureau of Circulation. It
does not subscribe to the Associated Press or United
Press International news services. According to a state-
ment by its Senior Editor it is not a newspaper and its
content is based on a consistent formula of “how to”
stories, celebrity or medical or personal improvement
stories, gossip items and TV column items, together with
material from certain other subjects. It provides little or
no current coverage of subjects such as politics, sports or
crime, does not attribute content to wire services, and in
general does not make reference to time. Normal “lead
time” * for its subject matter is one to three weeks. Its
owner allowed it did not generate stories “day to day as
a daily newspaper does.”
Did the trial court err in holding the National En-
quirer was not a newspaper within the provisions of
Civil Code § 48a? No.
SIf a “deadline” is the time by which an article must be placed
in the printing process in order to be completed for distribution, by
one accepted definition “lead time” is the period from the deadline
to such point of completion, or, put another way, is the shortest
period of time between completion of an article and the time it is
published.
8a
At appellant’s request, the trial court herein made its
determination * after hearing and based on extensive evi-
dence that the National Enquirer was not a newspaper
for purposes of the application of Civil Code section 48a
(see fn. 2).
In so concluding, while it took into account the indicia
relating to status detailed above, it relied upon the most
fundamental of those considerations which have been
deemed sufficient to justify the designation of that par-
ticular class as the beneficiary of the protection by the
statute, namely, that newspapers by virtue of the manner
in which they are obliged to operate are not generally in
a position adequately to guard against the publication of
material which is untrue, such that:
“In view of the complex and far-flung activities of
the news services upon which newspapers and radio
* The determination referred to is that ultimately made immedi-
ately prior to trial. Earlier, in January of 1980, appellant moved
for partial summary judgment on the ground the “hatred or ill
will” required to be shown under § 48a (see fn. 3) could not be
established by respondent, thereby preclude punitive damages. That
motion was granted. In February 1980, respondent moved to
modify or vacate the order. After consideration of this motion, the
prior order was modified to state that a triable issue of fact existed
whether “hatred or ill will” could be shown but that as a matter
of law the National Enquirer was a newspaper “within the mean-
ing of newspaper as said term is contained in Civil Code § 48(a).”
Within six months following the modification, respondent moved
to vacate both prior rulings and this motion was granted upon the
premise “the issue of whether or not defendant National Enquirer
is a newspaper or magazine for purposes of Civil Code § 48(c) and
this action is a triable issue of fact which shall be determined upon
trial.”
While appellant now suggests the “newspaper” issue should at
least have been submitted to the jury, its trial brief on the point
specifically concluded that “The question of the newspaper or maga-
zine status of The National Enquirer under Civil Code § 48(a) is
one for the Court. Montandon vy. Triangle Publications, Inc., 45
Cal.App.3d 938, 953 (1975).”
9a
stations must largely rely and the necessity of pub-
lishing news while it is new, newspapers and radio
stations may in good faith publicize items that are
untrue but whose falsity they have neither the time
nor the opportunity to ascertain.” (Werner V.
Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121,
128).
The preferred status thus being seen as hinging on the
inability of newspapers to verify information while opti-
mally disseminating news, the trial court focused on the
element of time as that element was related to appellant’s
publication process or business mode and found crucial
to its determination the National Enquirer should not be
characterized as a newspaper evidence showing the reason
for that preferred status to be lacking.
Appellant contends the rationale so employed by the
trial court was erroneous and in support of the claim
maintains that the special classification approved in
Werner Vv. Southern Cal. etc. Newspapers, supra, 35 Cal.
2d 121, depended on the public’s interest in the “free
dissemination of news,” without reference to questions of
timeliness; that the cases of Pridonoff v. Balokovich
(1951) 36 Cal.2d 788 (§ 48a to be applied in favor of
all participants—e.g., columnists, critics, editors—in
newspaper publications), Maidman v. Jewish Publica-
tions, Inc. (1960) 54 Cal.2d 643 (§ 48a applicable to
weekly newspaper), Kapellas v. Kofman (1969) 1 Cal.3d
20 (§$ 48a applicable to editorial) and Field Research
Corp. V. Superior Court (1969) 71 Cal.2d 110, 114 fn. 4
(language in footnote implying § 48a applies to “publish-
ing * * * enterprises”) constitute an unbroken line of
authority consistent with appellant’s position; and that
Briscoe v. Reader’s Digest Assn. (1971) (§ 48a applicable
to the named defendant) “clearly [holding] § 48a ap-
plicable to a magazine—indeed to a monthly magazine
that published digests of other magazine articles, rather
than current happenings,” requires a like result with re-
10a
spect to the National Enquirer. Further support for the
conclusion, it is said, derives from language appearing in
Johnson Vv. Harcourt, Brace, Jovanovich, Inc. (1974) 43
Cal.App.3d 880, 894, and Harris v. Curtis Publishing Co.
(1942) 49 Cal.App.2d 340, 353-354.
An understanding of the pertinent authorities differing
from that so proffered by appellant, however, appears in
Morris v. National Federation of the Blind (1961) 192
Cal.App.2d 162 and in Montandon V. Triangle Publica-
tions, Inc. (1975) 45 Cal.App.3d 938 (hg. den. 5-8-75).
In Morris, the court examined the issue in terms of a
newspaper-magazine dichotomy, and observed that:
[T]he statute [§ 48a] on its face applies only to
publication ‘in a newspaper, or... by radio broad-
east.’ No California decision has specifically deter-
mined whether this provision applies also to maga-
zines. However, our Supreme Court, in holding the
statute constitutional, has noted the interest of the
public in the free dissemination of news (Werner V.
Southern Calif. etc. Newsapers, 35 Cal.2d 121, 128
* * *) Particular emphasis was placed upon the
pressures upon media of news dissemination for pub-
lishing ‘news while it is new,’ and the resultant
limitation of time and opportunity for ascertaining
the compete accuracy of all items printed. Both dis-
senting opinions (pp. 138, 153) asserted arbitary
and discriminatory classification in the omission of
magazines from the protected group. Law review
comment has assumed the exclusion of magazines
from protection (64 Harv. L. Rev., 678, 679).
“Although one decision (Harris v. Curtis Pub-
lishing Co., 49 Cal.App.2d 340, 353-354 * * *) has
assumed application of section 48a to magazines, it
does not discuss the point, which apparently was not
raised by the briefs. Another (Shumate v. Johnson
Publishing Co., 139 Cal.App.2d 121, 129-130 * * *
lla
implies that the statute does not extend to magazines.
* #*# @#
* * * *
“On full review of the statute, we conclude that it
applies only to a publication in a newspaper or by
radio. Its terms are clear. The Legislature conspicu-
ously failed to include magazines in the protected
group. We are bound by this apparently intended
omission. Extension of the statute requires amend-
ment rather than interpretation.”
(Morris Vv. National Federation of the Blind, supra,
192 Cal.App.2d 162, 165-166.)
Employing a similar analysis, the court in Montandon
agreed with the conclusion reached in Morris. In doing
so, however, it was further obliged to confront the inter-
vening and apparently contrary holding in Briscoe Vv.
Reader’s Digest Association, Inc., supra, 4 Cal.3d 529,
which it rationalized as follows:
“In Briscoe Vv. Reader’s Digest Association, Ince.
(1971) 4 Cal.8d 529 * * *, an action against the
publisher of Reader’s Digest for invasion of plain-
tiff’s right of privacy by publishing the fact that
some 11 years prior to the publication he had hijacked
a truck and fought a gun battle with police, the trial
court sustained without leave to amend a demurrer
to the complaint. The Supreme Court reversed, hold-
ing that the complaint did state a cause of action for
invasion of privacy by publication of plaintiff’s name
in the article. The court stated further that allega-
tions in the complaint were not sufficient to state a
‘false light’ cause of action, one which is in substance
equivalent to a libel claim, because the plaintiff had
not complied with the requirements of section 48a.
“As Briscoe involved not a newspaper but a maga-
zine, it would appear that the court was holding that
12a
section 48a applies to a magazine as well as a news-
paper. Unfortunately, no discussion appears therein
of the cases which hold that the section does not
apply to magazines. Nor is there any diccussion of
the reasons upon which the holding is based. * * *.
Moreover, the court in Briscoe cited as the only sup-
port for its holding, Werner, supra, and Kapellas v.
Kofman (1969) 1 Cal.8d 20 * * *, both of which
were libel actions against newspapers and contained
no discussion of the application of section 48a to
magazines.
“Section 48a was originally adopted in 1931 (Stats.
1931, ch. 1018, p. 2034, §1) and applied only to
newspapers. It was amended in 1945 (Stats. 1945,
ch. 1489, p. 2763, § 5) to add radio. The statute on
its face applied only to ‘“a newspaper” and radio
broadcast.’ It is significant in light of the decision
in Morris, supra, in 1961 that the section did not
apply to magazines, that the Legislature has not
amended it to include magazines. It is also signifi-
cant that the Legislature in 1949 provided in section
48.5 of the Civil Code that the term ‘radio broadcast’
as used in part 2 of the code is ‘defined to include
both visual and sound radio broadcasting.’ If, as de-
fendant claims, the Legislature intended to include
magazines it has had abundant opportunity to do so.
“In Briscoe, supra, page 543, the court said: * * *
‘We hold today only that, as pleaded, plaintiff has
stated a valid cause of action, sustaining the de-
murrer to plaintiff's complaint was improper, and
that the ensuing judgment must therefore be re-
versed.’ [Italics added.] In view of the “court’s
statement limiting its opinion to a matter of plead-
ing and the other matters above stated, Briscoe can-
not be considered as authority for overruling the
13a
determination in Morris, supra, page 162, that sec-
tion 48a does not apply to magazines.°
(Montandon v. Triangle Publications, Inc., supra, 45
Cal.App.3d 938, 951-952 (hg. den. 5-8-75); see also
Alioto v. Cowles Communications, Inc., 519 F.2d 777
(9th Civ.), cert. denied, 423 U.S. 930 (1975) ; Came-
ron V. Wernick (1967) 251 Cal.App.2d 890, 892,
fn. 1.)
From the foregoing it would appear no definitive ex-
position of the scope of § 48a has been articulated suffi-
ciently for us to say the question of its application here
is without doubt. We nevertheless are of the opinion that
what emerges as the better view from the authorities dis-
cussed is the proposition that the protection afforded by
5 The Montandon court further observed that:
“Johnson Vv. Harcourt, Brace, Jovanovich, Inc. (1974), 43 Cal.
App.3d 880 * * *, is an action for invasion of the plaintiff’s right
of privacy by republication of an article from The Nation magazine
in a college English textbook. Judgment of the trial court sustain-
ing the defendant’s demurrer without leave to amend was affirmed.
In the opinion reference is made to Kapellas, supra, page 20, and
in Briscoe, supra, page 529, to the California Supreme Court’s
determination that a false light action is in substance equivalent
to a defamation suit and that a plaintiff alleging false light, there-
fore, must also satisfy the requirements of malice and demand for
retraction within 20 days of notice of the publication. [Cliting
Civil Code section 48a the court stated: ‘Although Briscoe extended
the coverage of section 48a to encompass magazines, under the con-
clusion we here reach we do not determine whether the retraction
requirement extends to the publication of books.’ (Johnson, supra,
p. 894.)
“As we have pointed out hereinbefore, we do not consider Briscoe
as authority for the proposition that section 48a applies to maga-
zines, nor do we consider that the mere reference in Johnson, supra,
p. 880, to section 48a adds anything to the issue, particularly as the
court refused to go into the application of section 48a to books and
the question of its application to magazines was not before the
court.” (Montandon v. Triangle Publications, Inc., supra, 45 Cal.
App.3d 938, 952-953.)
l4a
the statute is limited “to those who engage in the immedi-
ate dissemination of news on the ground that the Legisla-
ture could reasonably conclude that such enterprises * * *
cannot always check their sources for accuracy and their
stories for inadvertent publication errors * * *.” (Field
Research Corp. v. Superior Court, supra, 71 Cal.2d 110,
114.)
Seen in this light, the essential question is not then
whether any publication is properly denominated a maga-
zine or by some other designation, but simply whether it
ought to be characterized as a newspaper or not within
the contemplation of § 48a, a question which must be
answered, as the trial court supposed, in terms which
justify an expanded barrier against damages for libel in
those instances, and those only, where the constraints of
time as a function of the requirements associated with
production of the publication dictate the result.®
Having so decided, we are also satisfied to conclude
without extensive recitation of the evidence that the trial
court consistently with the foregoing rationale correctly
determined the National Enquirer should not be deemed a
newspaper for the purposes of the instant litigation.
Was there error associated with the award to respond-
ent of $750,000 in punitive damages? Yes.
In order, first, to provide the framework employed by
us in rejecting certain contentions raised by appellant
®In so saying we are mindful of the semantic and substantive dif-
ficulties inherent in the use in the present context of such words as
“immediate” (“timely”) and “news,” it being the case that the
former might be seen as a function of occurrence, or of discovery,
or something else and the latter may be regarded as the product
of the media, or as dependent for its definition upon the perception
of its recipient or delineated in some other fashion. (See generally,
Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 346; Winters v.
New York (1948) 333 U.S. 507, 510; Hannegan v. Esquire, Ine.
(1946) 327 U.S. 146, 158; Goldman v. Time, Inc., 336 F.Supp. 133,
188 (N.D. Calif. 1971); Restatement, Torts (2d) § 642D, comment
g (1977).
15a
under this heading, we set out preliminarily the following
considerations and principles fundamental to our conclu-
sions.
Nearly twenty years ago, it was announced in New
York Times Co. v. Sullivan (1964) 376 U.S. 254 at pp.
279-280 that:
“The constitutional guarantees [relating to pro-
tected speech] require, we think, a federal rule that
prohibits a public official from recovering damages
for a defamatory falsehood relating to his official
conduct unless he proves that the statement was made
with ‘actual malice’—that is, with knowledge that it
was false or with reckless disregard of whether it
was false or not.”
The constitutional privilege thus defined was extended
three years later in Curtis Publishing Co. v. Butts (1967)
388 U.S. 130, to include within its protection not only
public officials but also “public figures,” such that:
“Those who, by reason of the notoriety of their
achievements or the vigor and success with which
they seek the public’s attention, are properly classed
as public figures and those who hold governmental
office may recover for injury to reputation only on
clear and convincing proof that the defamatory false-
hood was made with knowledge of its falsity or with
reckless disregard for the truth.”
(Gertz v. Welch (1974) 418 U.S. 323, 342.)
What was intended to be accomplished in each of these
instances was to make available an “antidote to the in-
ducement to media self-censorship of the common-law rule
of strict liability for libel and slander” (Jbid.), which
rule holds publishers responsible for their false utterances
even where an absence of “malice” is positively estab-
lished, as for example in the case of a defamation which
mistakenly or negligently identifies a party as its subject,
16a
“intending” another. (See Taylor v. Hearst (1895) 107
Cal. 262.)
Finally, in Gertz v. Welch, supra, 418 U.S. 323, be-
cause it was thought “the States should retain substantial
latitude in their efforts to enforce a legal remedy for
defamatory falsehood injurious to the reputation of a
private individual,” (id., at pp. 345-346; emphasis added)
a wholesale extension of the New York Times test to such
persons was rejected as one which would abridge that
legitimate state interest to an unacceptable degree, and it
was held instead that:
“* * * so long as they do not impose liability with-
out fault, the States may define for themselves the
appropriate standard of liability for a publisher or
broadcaster of defamatory falsehood injurious to a
private individual,”
but that:
“* * * the States may not permit recovery of
presumed [i.e., compensatory damages without evi-
dence of actual loss] or punitive damages, at least
when liability is not based on a showing of knowledge
of falsity or reckless disregard for the truth.”
so that:
«“* * * In short, the private defamation plaintiff
who establishes liability under a less demanding
standard than that stated by New York Times may
recover only such damages as are sufficient to com-
pensate him for actual injury.”
(Ibid., at pp. 347, 349, 350; see also Rosenbloom v.
Metromedia, Inc. (1971) 403 U.S. 29.)
These aspects of the scope of the New York Times rule
having been related, we observe additionally that, as will
hereinafter be seen, the reference in the rule to “actual
malice” may prove confusing when juxtaposed to similar
17a
terms commonly employed in the law relating to libel,’
where, as in a case like the one before us, those terms are
involved with the question of punitive damages. The dif-
ference, nevertheless, between the concept of malice as the
term is used respecting liability for libel and the meaning
of the word as it provides the basis for recovery of puni-
tive damages for that tort, at least in California, has been
clearly articulated in the case of Davis v. Hearst (1911)
160 Cal. 148. Thus, it was there pointed out that for
purposes of the distinction it is necessary only to define
two of the several terms (see fn. 7), namely malice in
law and malice in fact, the former being understood as:
“* * * that malice which the law presumes (either
conclusively or disputably) to exist upon the produc-
tion of certain designated evidence, which malice may
be fictional and constructive merely, and which, aris-
ing, as it usually does, from what is conceived to be
the necessity of proof following a pleading, which in
turn follows a definition, is to be always distin-
guished from true malice or malice in fact.”
and the latter referring to:
“* * * a state of mind arising from hatred or ill-will,
evidencing a willingness to vex, annoy, or injure an-
other person,”
or to:
7So, it has been remarked that: “ ‘The jumble in some modern
text books on slander and libel concerning malice, actual malice,
malice in law, malice in fact, implied malice, and express malice
(all derived from judicial utterances, it is true) is a striking testi-
mony of the limitations of the human “ ‘mind.’ Ullrich v. New York
Press Co., 23 Misc. 168, 171, ***” quoted in Davis v. Hearst (1911)
160 Cal. 148, 155.)
In the recent case of Smith v. Wade (1983) —— U.S. ——, 75
L.Ed.2d 632 at p. 640, fn. 6, a matter involving punitive damages
under 42 USC § 1983, the majority declined to use the term “actual
malice,” observing that “While the term may be an appropriate one,
we prefer not to use it, simply to avoid the confusion and ambiguity
’
that surrounds the word ‘malice’.
18a
“the motive and willingness to vex, harass, annoy, or
injure,”
that is to say to:
“malus animus—indicating that the party was actu-
ated either by spite or ill will towards an individual,
or by indirect or improper motives, though these may
be wholly unconnected with any uncharitable feeling
towards anybody.”
(Id., at pp. 160, 162, 164.)
As illustrative of the respective functions of these terms
in a libel case and in amplification of what is meant by
malice in fact, the Davis court went on to point out that:
“Tt has been said that malice is not a necessary
ingredient, is no part of the gist or our civil action
for [libel]. No particular harm can be worked by the
declaration that malice is a necessary part of every
action for libel, if it be understood that the particular
malice there referred to is the constructive or fic-
tional malice which we have designated malice in
law. There is, however, a general provision of the
law allowing punitive damages in the discretion of
the jury, in an action not arising from contract—
in other words, in any action sounding in tort, ‘where
the defendant has been guilty of * * * malice, express
or implied.’ (Civ. Code, sect. 3294.) Enough has
been said to show what a fertile field for error is the
language just quoted, when attempt is made to apply
it to malice, express or implied, under all varying
definitions.
+ e * *
“Tt should be apparent that the malice, and the only
malice, contemplated by section 3294 is malice in fact,
and that the phrase ‘express or implied’ has reference
only to the evidence by which that malice is estab-
lished ;
19a
“And while in the cases this malice, the existence of
which we have declared to be essential to a recovery
in punitive damages, is sometimes called express
malice, sometimes actual malice, sometimes rea] mal-
ice, and sometimes true malice, it is always in its
analysis malice of the one kind, the malice of evil
motive. (Witcher v. Jones, 17 N.Y. Supp. 491;
Union Mutual Life Ins. Co. v. Thomas, 83 Fed. 803,
* * *-. Miner v. Broadcast Co., 170 Mo. 486, * * *;
French v. Deane, 19 Colo. 504, * * *; Inman v. Ball,
65 Iowa, 543, * * *. Miller v. Kirby, 73 Ill. 242;
* * * While such malice in fact is essential to an
award of exemplary damages, it may be proved di-
rectly or indirectly, that is to say by direct evi-
dence of the evil motive and intent, or by legitimate
inferences to be drawn from other facts and cir-
cumstances in evidence.
it oe
(Ibid., at pp. 161, 162, 163.) (Emphasis added.)
The matter herein was tried upon the premise re-
spondent is a “public figure’ and there was employed in
establishing the liability of appellant the New York Times
standard, expressed in the trial court’s instruction to the
jury that:
“In addition, plaintiff must prove by clear and
convincing evidence that defendant published the
item complained of with actual malice—that is, that
the defendant published the item either knowing that
it was false or with reckless disregard for whether
it was true or false.”
On the question of punitive damages, however, the jury
was instructed that such damages could be imposed if
appellant had been shown “by a preponderance of the
evidence” to have been “guilty of malice,” which was de-
fined as:
“conduct which is intended by the defendant to cause
injury to the plaintiff or carried on by the defendant
with a conscious disregard for the rights of others.”
20a
Appellant asserts this instruction constituted prejudi-
cial error in that, even apart from Civil Code section 48a,
the law under the circumstances present requires that
punitive damages may not be awarded to a public figure
without proof of the publisher’s hatred or ill will by
clear and convincing evidence. Stated another way, ap-
pellant maintains that a “standard” of proof expressed
in the trial court’s “intended-conscious disregard” lan-
guage, and a “burden” of proof based on a preponder-
ance-of the-evidence, are inadequate in any libel case of
the type present here. Support for the proposition, in
appellant’s view,is found in Gertz v. Welch, supra, 418
U.S. 323 and from the other cases similar to it which are
cited above.
We are of the opinion that in so contending appellant
is mistaken. As can be ascertained from what we have
set out above, the “actual malice” required by New York
Times to be established by “clear and convincing evi-
dence” refers to that aspect of malice, properly denomi-
nated malice in law, necessary to find liability for libel
and not to malice in fact, essential to the recovery of
punitive damages, which under the cases discussed may
be arrived at on the basis of applicable state standards,
here on the basis of a preponderance of the evidence.
(See Cantrell v. Forest City Pub. Co. (1974) 419 U.S.
245, 251-252; cf. Smith v. Wade (1983) —— USS. ;
75 L.Ed.2d 632.*.).) Moreover, as also appears from
8 “| Appellant] argues that the deterrent and punitive purposes of
punitive damages are served only if the threshold for punitive dam-
ages is higher in every case than the underlying standard for
liability in the first instance. * * *
“The argument overlooks a key feature of punitive damages—
that they are never awarded as of right, no matter how egregious
the defendant’s conduct. * * *
“There has never been any general common-law rule that the
threshold for punitive damages must always be higher than that
2la
what we have said, the definition of malice in fact is nov
controlled by New York Times or its progeny, but is
instead that articulated in Davis v. Hearst, namely, “the
motive and willingness to vex, harass, annoy, or injure”
or the “malus animus—indicating that the party was
actuated either by spite or ill-will towards an individual,
or by indirect or improper motives, though they may be
wholly unconnected with any uncharitable feeling to-
wards anybody.’” (Davis v. Hearst, supra, 160 Cal. 143,
at pp. 152, 164, Jbid., at pp. 162, 164, quoting from
Hicks v. Faulkner, 8 Q.B. Div. 167), a standard which
we think was adequately conveyed by the trial court’s
instruction.’
for compensatory liability.” (Smith v. Wade, supra, (1983) -—
U.S. , 75 L.Ed.2d 632 at pp. 648-649.)
In the matter before us, of course, the “threshold” for punitive
damages may be viewed as dependent both upon the substantive
finding of conscious, as opposed to reckless, disregard, and upon
the degree of proof—preponderance versus clear and convincing—
necessary to support the finding. Whether conscious disregard
found from a preponderance of evidence constitutes a higher
threshold than reckless disregard found from clear and convincing
evidence, we are satisfied the two are sufficiently similar that the
application of the former, even in a context involving First Amend-
ment issues, was justified.
*In Taylor v. Superior Court (1979) 24 Cal.3d 890, a case involv-
ing punitive damages in a personal injury action brought against
an intoxicated driver it was recited that:
“Section 3294 of the Civil Code authorizes the recovery of puni-
tive damages in noncontract cases ‘where the defendant has been
guilty of oppression, fraud, or malice, express or implied... .’ As
we recently explained, ‘This has long been interpreted to mean that
malice in fact, as opposed to malice implied by law, is required.
[Citations.] The malice in fact, referred to ...as animus malus,
may be proved under section 3294 either expressly (by direct evi-
dence probative on the existence of hatred or ill will) or by implica-
tion (by indirect evidence from which the jury may draw infer-
ences). [Citation.]’ (Bertero v. National General Corp. (1974) 18
Cal.3d 43, 66 * * *.)
“Other authorities have amplified the foregoing principle. Thus
it has been held that the ‘malice’ required by section 3294 ‘implies
22a
It is next contended, however, that regardless of what
we have just said, the punitive damages assessed herein
are still legally unsupportable. More specifically it is
urged (a) the amount of those damages was grossly ex-
cessive; (b) such damages were impermissibly dispropor-
tionate to the compensatory damages awarded; (c) that
the trial court erred in revising the ratio between puni-
tive and compensatory damages on its remittitur; and
an act conceived in a spirit of mischief or with criminal indifference
towards the obligations owed to others.’ (Ebaugh v. Rabkin (1972)
22 Cal.App.3d 891, 894 * * *; see Gombos v. Ashe (1958) 158 Cal.
App.2d 517, 527 * * *; Stein, Damages and Recovery (1972) Nomi-
nal and Punitive Damages, § 186, at p. 369; Prosser, Law of Torts
(4th ed. 1971) § 2, at pp. 9-10.) In Dean Prosser’s words: ‘Where
the defendant’s wrongdoing has been intentional and deliberate, and
has the character of outrage frequently associated with crime, all
but a few courts have permitted the jury to award in the tort action
“punitive” or “exemplary” damages. ... [%]Something more than
the mere commission of a tort is always required for punitive dam-
ages. There must be circumstances of aggravation or outrage, such
as spite or “malice,” or a fraudulent evil motive on the part of the
defendant, or such a conscious and deliberate disregard of the
interests of others that his conduct may be called wilful or wanton.’
(Ibid., fns. omitted, italics added.)
“Defendant’s successful demurrer to the complaint herein was
based upon plaintiff’s failure to allege any actus! intent of defendant
to harm plaintiff or others. Is this an essential element of a claim
for punitive damages? As indicated by Dean Prosser, courts have
not limited the availability of punitive damages to cases in which
such an intent has been shown. As we ourselves have recently ob-
served, in order to justify the imposition of punitive damages the
defendant ‘“. . . must act with the intent to vex, injure, or annoy,
or with a conscious disregard of the plaintiff's rights. {Citations.|"’
(Italics added; Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d
910, 922 * * *, quoting from Silberg v. California Life Ins. Co.
(1977) 11 Cal.8d 452, 462 * * *; accord, Seimon v. Southern Pac.
Transportation Co. (1977) .67 Cal.App.8d 600, 607 * * *; G. D.
Searle & Co. ¥. Superior Court (1975) 49 Cal.App.3d 22 * * *.)”
(1d., at pp. 894-895 ; see also Cantrell v. Forest City Pub. Co., supra,
419 U.S. 245, 251-252; cf. Roemer v. Retail Credit Co. (1975) 44
Cal.App.3d 926; Field Research Corp. v. Patrick (1978) 80 Cal.
App.3d 608.)
23a
(d) that insufficient evidence was present which would
show appellant ratified the acts of its employees, so as to
justify its liability for punitive damages under Civil
Code section 3294 (b)."
In addressing the claims that the penalty award was
excessive and disproportionate, we accept as reiterative
of settled principles those observations related in Neal v.
Farmers Ins. Exchange (1978) 21 Cal.3d 910, 927-928
(fns. omitted) to the effect that:
“As we pointed out in Bertero v. National General
Corp., supra, 13 Cal.3d 43, our review of punitive
damage awards rendered at the trial level is guided
by the ‘historically honored standard of reversing as
excessive only those judgments which the entire rec-
ord, when viewed most favorably to the judgment,
indicates were rendered as the result of passion and
prejudice...’ (13 Cal.3d at p. 65, fn. 12.) Stating
the matter somewhat differently in a simiiar case,
we indicated that an appellate court may reverse
such an award ‘only “‘[wjhen the award as a mat-
ter of law appears excessive, or where the recovery
is so grossly disproportionate as to raise a presump-
tion that it is the result of passion or prejudice.’”’
(Schroeder v. Auto Driveaway Co. (1974) 11 Cal.3d
908,919 * * *.)
“In making the indicated assessment we are af-
forded guidance by certain established principles, all
of which are grounded in the purpose and function
of punitive damages. One factor is the particular
1° The statute provides in pertinent part that:
“An employer shall not be liable for [punitive] damages .. .
based upon acts of an employee of the employer, unless the em-
ployer * * * ratified the wrongful conduct for which the damages
are awarded or was personally guilty of oppression, fraud, or
malice. With respect to a corporate employer, the * * * ratification,
or act of oppression, fraud, or malice might be on the part of an
officer, director, or managing agent of the corporation.”
24a
nature of defendant’s acts in light of the whole rec-
ord; clearly, different acts may be of varying de-
grees of reprehensibility, and the more reprehensible
the act, the greater the appropriate punishment, as-
suming all other factors are equal. See Bertero v.
National Ins. Corp., supra, 13 Cal.3d 43; 65; Flet-
cher v. Western National Life Ins. Co., supra, 10
Cal.App.3d 376, 408-509; Ferraro v. Pacific Fin.
Corp. (1970) 8 Cal.App.3d 339, 352-353 * * *.) An-
other relevant yardstick is the amount of compensa-
tory damages awarded; in general, even an act of
considerable reprehensibility will not be seen to jus-
tify a proportionally high amount of punitive dam-
ages if the actual harm suffered thereby is small.
(But ef. Finney v. Lockhart (1950) 35 Cal.2d 161,
164 * * *.) Also to be considered is the wealth of
the particular defendant; obviously, the function of
deterrence * * * will not be served if the wealth of
the defendant allows him to absorb the award with
little or no discomfort. See Bertero, supra, at p. 65;
Roemer Vv. Retail Credit Co. (1975) 44 Cal.App.3d
926, 937 * * *; Wetherbee v. United Ins. Co. of
America (1971) 18 Cal.App.3d 266, 270-271 * * °*;
Ferraro Vv. Pacific Fin. Corp., supra, 8 Cal.App.3d
339, 353; MacDonald v. Joslyn (1969) 275 Cal. App.
2d 282, 293-294 * * *.) By the same token, of
course, the function of punitive damages is not
served by an award which in light of the defendant’s
wealth and the gravity of the particular act, exceeds
the level necessary to properly punish and deter.”
(See also Roemer v. Retail Credit Co., supra, 44
Cal.App.3d 926, 937; Wetherbee v. United Ins. Co.
of America (1971) 18 Cal.App.3d 266, 271.)
We likewise accept the proposition it is our duty to
intervene in instances where punitive damages are so
palpably excessive or grossly disproportionate as to raise
a presumption they resulted from passion or prejudice.
(See Rosener v. Sears, Roebuck & Co. (1980) 110 Cal.
25a
App.3d 740, 749-750; Zhadan v. Downtown L.A. Motors
(1976) 66 Cal.App.3d 481, 496.)
Viewing the record in the light of these principles, and
assuming, as we will hereinafter decide, that the award
of compensatory damages was proper, we are of the opin-
ion the award to respondent of $750,000 in order to
punish and deter appellant was not justified.
In so concluding, we are persuaded the evidence fairly
showed that while appellant’s representatives knew that
part of the publication complained of was probably false
and that the remainder of it in substance might very well
be, it was nevertheless determined to present to a vast
national audience in printed form statements which in
their precise import and clear implication were defama-
tory, thereby exposing respondent to contempt, ridicule
and obloquy and tending to injure her in her occupation.
We are also satisfied that even when it was thought nec-
essary to alleviate the wrong resulting from the false
statements it had placed before the public, the retraction
proffered was evasive, incomplete and by any standard,
legally insufficient.'' (See Turner v. Hearst (1896) 115
Cal. 394, 402-403; Behrendt v. Times-Mirror (1938) 30
Cal.App.2d 77, 88.) In other words, we have no doubt
11 The retraction appeared as the eighth item of a ten-item gossip
column, whereas the libelous item was contained as the fourth item.
The headline to the gossip column containing the retraction failed
to make any reference to the retraction although the defamatory
item was highlighted by a large headline at the top of the column.
Even though the original defamatory item was further emphasized
by its placement adjacent to a picture of Barbara Walters, the re-
traction was not placed next to a picture of a prominent celebrity.
The purported retraction was also substantially shorter and occu-
pied less column space than the original item. It repeated the sub-
stance of some of the defamatory statements while failing to refer
to others. Most notably, it never stated that Carol Burnett was not
inebriated. By inference it suggested that only the few published
statements were false while the rest must have been true. It
equivocated by ambiguously stating “we understand” that the events
did not occur.
26a
the conduct of appellant respecting the libel was repre-
hensible and was undertaken with the kind of improper
motive which supports the imposition of puntive dam-
ages.
Nevertheless, evidence on the point of appellant’s
wealth adequately established appellant’s net worth to
be some $2.6 million and its net income for the period
under consideration to be about $1.56 million, such that
the penalty award, even .when substantially reduced by
the trial court based on its conclusion the jury’s com-
pensatory verdict was “clearly excessive and * * * not
supported by substantial evidence,” continued to consti-
tute about 35% of the former and nearly half the latter.
Such being the case, and in the effort required of us
to find acceptable only that balance between the gravity
of a defendant’s illegal act and a penalty necessary to
properly punish and deter such unlawful conduct as will
serve the function of punitive damages, we hold the ex-
emplary award herein to be excessive, and require either
that it be reduced to the sum of $150,000 or that appel-
lant be granted a new trial on that issue. (See Rosener
v. Sears, Roebuck & Co., supra, 110 Cal.App.3d 740,
757.)
Having so decided, it is unnecessary for us to address
appellant’s further contention the trial court was bound
on its remittitur, at least as to an upper limit of puni-
tive damages, to the ratio of damages established by the
jury.”
12 We are sensitive to the fact that all facets of defamation law
since the New York Times case have been under the rigid scrutiny
of the Supreme Court of the United States for the purpose of
reconciling the common law and/or state law of defamation with the
guarantees of the First Amendment.
In effecting that reconciliation, the high court has announced
significant changes with respect to the rule of liability and the need
of clear and convincing evidence to establish liability. It has an-
nounced too substantial restrictions respecting the recovery of
27a
We also summarily reject the claim the malice in fact
established herein should not have been attributed to ap-
pellant, since it is clear to us from the record the acts
of the individuals involved in publishing the defamatory
statements were ratified in accordance with the require-
ments of Civil Code section 3294(b). (See fn. 10.)
Was there error associated with the award to respond-
ent of $50,000 in compensatory damages? No.
We have previously recited those considerations, both
legal and factual, which underlie our conclusion appel-
lant’s liability herein was established upon clear and con-
vincing evidence. It remained nevertheless for respond-
ent to establish the actual damage she had suffered as a
result of the publication involved. Whether such damage
necessarily encompassed both special and general dam-
ages was a matter dependent upon whether the publica-
tion was or was not libelous on its face, in accordance
with Civil Code section 45a which provides that:
“A libel which is defamatory of the plaintiff with-
out the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact, is said
to be a libel on its face. Defamatory language not
libelous on its face is not actionable unless the plain-
tiff alleges and proves that he has suffered special
damage as a proximate result thereof. Special dam-
age is defined in Section 48a of this code.”
That what was printed here was libelous on its face
seems abundantly clear, in that the message conveyed
damages where the New York Times standard for liability is not
adhered to. (See Gertz v. Welch, supra, 418 U.S. 328, 349-350.) But
while a review of the decisions of that court on the subject reveals
a wide spectrum of opinion concerning the propriety of punitive
damages in instances like the one before us, we do not find in any
of these authorities an announcement of definitive principles which
a state must apply to awards of such damages when, as here, the
New York Times test has been satisfied. We have therefore applied
the law of this state on that question, as we perceive it to be.
28a
was that respondent had been boisterous and loudly argu-
mentative in a public dining place, had “traipsed” around
the restaurant sharing part of her dinner indiscrimi-
nately, and had “raised eyebrows” when she boorishly
giggled instead of apologizing after spilling wine on an-
other, a message which reasonably carried the implica-
tion respondent’s actions were the result of some objec-
tionable state of inebriation. Nor is the character of the
publication altered by the consideration it might have
been interpreted innocently.
“The fact that an implied defamatory charge or
insinuation leaves room for an innocent interpreta-
tion as well does not establish that the defamatory
meaning does not appear from the language itself.
The language used may give rise to conflicting infer-
ences as to the meaning intended, but when it is
addressed to the public at large, it is reasonable to
assume that at least some of the readers will take it
in its defamatory sense. * * * It would be a reproach
to the law to hold that a defendant intent on destroy-
ing * * * reputation * * * could achieve his purpose
without liability by casting his defamatory language
in the form of an insinuation that left room for an
unintended innocent meaning.”
(MacLeod v. Tribune Publishing Co. (1959) 52 Cal.
2d 586, 549, 551; Fairfield v. Hagan (1967) 248
Cal.App.2d 194, 200-201.)
Accordingly, it was incumbent upon respondent to show
only those general damages caused by appellant’s wrong,
i.e., damages arising from respondent’s loss of reputa-
tion, shame, mortification and injured feelings. In this
regard her own testimony was to the following effect:
“Q When was the first time that you had any
knowledge of that article or the contents of that
article?
“A I believe it was the day that it came out.
29a
“Q What was your reaction?
“A Well, I was absolutely—I was stunned.
I felt very, very angry. I started to cry. I started
to shake.
“Q Why such a reaction to this [article]?
“A Well, it portrays me as being drunk. It por-
trays me as being rude. It portrays me as being
uncaring. It portrays me as being physically abu-
sive.
It is disgusting, and it is a pack of lies.
I—It hurts. It hurts, because words, once they
are printed, they’ve got a life of their own. Words,
once spoken, have a life of their own.
How was I going to explain this to my kids, my
family, the people I care about?
How am I going to go talk to do things
against alcoholism?
* *
* * * *
“Q [Y]ou mentioned something about work
against alcoholism.
What is that?
“A It didn’t start out as any kind of a crusade
at all. I think I must have spoken about it many
years ago, first maybe in a magazine article for
McCall’s or Redbook or Ladies’ Home Journal, or
something like that, when, in a sense, I came out of
the closet about my parents.
I told about my background.
Then I was asked about it on a few talk shows,
and then I started getting requests to do various
public service things relating to abuse of alcohol,
which I was very happy to do.
“Q And you have done a number of public serv-
ice things—
“A. Yes.
30a
“Q —relating to abuse of alcohol?
“A Yes.
“Q Now, when you first heard about this article,
when you first heard what the article said, I take it,
from what you said, that you at least interpreted
the language of the article as inferring that you
were intoxicated?
“A I think anyone who can read would.
“Q And your reaction—one of the reactions you
had—we are not talking about now, but at the time
you heard about this article, one of the reactions
you had was, as you described it, related to this
work that you had been doing, the—let’s say image,
for lack of a better word, the image that you have
in respect to the working against abuse of alcohol?
“A Yes. I mean, it hurts. If you think you are
going to get up there and talk to somebody and say,
‘Hey, you know, there is a way, there is a cure for
this, and people have been cured—’ If I get up and
talk about that and somebody having read that or
heard about it says, ‘Who is she to get up there and
tell me what to do, she runs around having fights
with people and throws wine on them,’ I mean,
what—yYou see what I’m getting at?
I tell you what really hurts is that I know—I
really know that most people believe what they read.
And that hurts.
“Q What did you—And I preface this by saying,
and obviously you know it already, that we have to
describe the feelings that you had, both physical
and mental, at the time you found out about this
article. What did you feel physically, if anything
different than usual?
“A Well, I don’t think I would be different from
anybody else, if anyone in here just put their name
on that. Some people might get a headache. My
stomach just went back and forth, and did flip flops.
My stomach did flip flops. I cried. When you cry
8la
and your stomach does that, your heart pounds real
fast. You shake, You cry. You calm down, you cry;
you calm down, then you start thinking about all the
ramifications, about, ‘Oh, my God, should I call my
kids? Are they going to hear about this in school
or should I talk to them about it and say, ‘Hey, it
didn’t happen’? Should I call my relatives? What
should I do? Should I ignore anything that anybody
is going to say to me today? But what am I going
to do tomorrow?’
“Q Was the article that had been read to you
still on your mind as you were walking to rehearsal?
“A Yes.
“Q Did anything unusual happen to you during
the time you were walking?
“A I was crossing the street and a cab driver
yelled out at me and said, ‘Hey, Carol, I didn’t know
you like to get into fights.’
“Q This, apparently, obviously, was a person that
you did not know?
“A No. It was a cab driver.
“Q Does this article still concern you?
“A Yes.
“Q Why is that?
24 A)
When I am dead and gone, it’s going to be in my
files.
My kids, my grandchildren, great-grandchildren,
whatever—everybody’s got a file on people, library,
if you will—they can look that up.
And unless—it’s always going to be with me.”
The foregoing, in our view, when combined with the
further evidence of respondent’s prominence in the public
eye, her professional standing and the fact the National
32a
Enquirer is read by some 16 million persons, was suffi-
cient to support an award of $50,000 in compensatory
damages."* (See Scott v. Times-Mirror Co. (1919) 181
Cal. 345, 365; Douglas v. Janis (1974) 43 Cal.App.3d
931, 940; see also Allard v. Church of Scientology (1976)
58 Cal.App.3d 439, 450.)
Was there any other reversible error present in the
matter? No.
Finally it is maintained the trial court committed prej-
udicial error in its rulings respecting two incidents which
occurred during the course of the trial.
In the first of these, as an accommodation to respond-
ent’s lawyer, counsel for appellant, in the presence of the
jury, read aloud the following from deposition testimony.
“Q Do you have any agreement at this time with
the National Enquirer as to any possible liability
that you may have concerning this article, such as
an indemnification agreement?
“A Yes, obliquely, I have been told.
“T believe, although I do not specifically remember,
although I think I specifically remember Iain Calder,
the editor and chief of the National Enquirer, told
me that I would be in no way held personally reliable
[sic] and that we have insurance.
. * +. *
“And to this day everything that is written in the
column is covered—”
There then transpired the following exchange between
the trial court and counsel for the parties.
13 It is also urged by appellant it was improper for the trial court
to instruct the jury it could consider respondent's particular sus-
ceptibilities and circumstances in arriving at actual damages. If
there were error in that respect, we deem it harmless in light of
the evidence adduced on the issue. (Cal. Const., Art. VI, § 18.)
33a
“(COUNSEL FOR APPELLANT:] I have to
move for a mistrial on behalf of all of my clients.
There has been a reference to insurance. The in-
credibly embarrassing thing for me professionally
and ethically is that I was the instrumentality, if
you will, of exposing this.
“THE COURT: Well, unfortunately, you know,
I guess all of us—this can happen to all of us.
“And I can give—I’m going to deny the motion for
a mistrial, but I’m going to—If you want, I can give
an admonition that I think is contained in BAJI
1.04, or whatever the appropriate number is. I’d be
happy to do that.
“Sometimes that calls undue attention to it. What-
ever your pleasure is. I can cover it that way.
“So why don’t we just have a stipulation that
there was no insurance or something like that.
“(COUNSEL FOR APPELLANT:] Well, I’m
sure not trying to be difficult, because I’d love to
have this done. * * *
“COUNSEL FOR RESPONDENT:] How about
just telling them that they should ignore the last
comment?
“There is no insurance applicable to this case.
“(COUNSEL FOR APPELLANT:] Well, I'd
sure like to tell them for their purposes there is no
insurance that is applicable to this case; that the
witness as in error.
“THE COURT: Fine.”
The trial court then advised the jury what they had
heard was erroneous and that there “was no insurance
in the case.”
, >
We find no error in this of which appellant may com-
plain. Having joined in fashioning the corrective ad-
monition, it cannot now be heard to say the cure qvas
worse than the disease (Cf. Weirum v. RKO General,
34a
Inc. (1975) 15 Cal.8d 40, 50), and had nothing further
been said to the triers of fact, the disclosure described
would not have warranted a mistrial. (See Packard v.
Moore (1937) 9 Cal. 2d 571, 580.)
In the vecond incident referred to, at least a number
of the jurors became aware of a verbal denunciation of
the National Enquirer by television star Johnny Carson
on his program. “The Tonight Show,” wherein he as-
serted essentially that the publication was composed of
fabrications authored by liars. After examining each
juror concerning the effect of the tirade on the juror’s
ability to participate in a fair and impartial trial and
being satisfied in the premises, the trial court excused
two of the triers of fact, seated the only available alter-
nate, and proceeded with a panel of eleven, from which
it was agreed nine could determine the cause. No more
was required. (See People v. Manson (1977) 71 Cal.
App.3d 1, 28; People v. Byers (1970) 10 Cal.App.3d
410, 416; People v. Blackwell (1967) 257 Cal.App.2d
313, 321-323.)
The judgment is affirmed except that the punitive dam-
age award herein is vacated and the matter is remanded
for a new trial on that issue only, provided that if re-
spondent shall, within 30 days from the date of our
remittitur, file with the clerk of this court and serve upon
appellant written consent to a reduction of the punitive
damage award to the sum of $150,000, the judgment will
be modified to award respondent punitive damages in that
amount, and as so modified affirmed in its entirety.
(Rosener v. Sears Roebuck & Co., supra, 110 Cal.App.3d
740, 757.) Each party to bear her or its costs on appeal.
CERTIFIED FOR PUBLICATION,
Roth
I concur: we?
Gates ROTH
GATES
35a
CONCURRING AND DISSENTING OPINION
I concur in the affirmance of the judgment, but I dis-
sent from that part of the majority opinion reducing the
award of punitive damages.
Our decision in Allard v. Church of Scientology (1976)
58 Cal.App.3d 439 fully supports the majority view here-
in. But I am now convinced it was a mistake in Allard
to have uncritically applied the rule and majority view of
Cunningham v. Simpson (1969) 1 Cal.38d 301, thus re-
sulting in a reduction of the punitive damages in Allard.
Unlike Dr. Frankenstein, we did not create a “monster.”
Nonetheless by our Allard decision we helped nurture an
improper and growing practice in the appellate courts to
reduce punitive damages simply because of some sort of
“disproportion.” While consistent with established case
law, I believe the practice needs limiting if it is not in
fact error.
The weakness in Allard and in the present majority
opinion is its undue weight and emphasis on the presump-
tion that just because an award of punitive damages is a
certain percentage greater than actual damage it must
have been a result of passion and prejudice. I think such
presumption is a non sequitur. In each case it is just
as probable that the verdict was the result of fair, hon-
est, cool and dispassionate deliberations of the jury con-
cluding that it would take at least that much money to
teach the defendant a lesson and to insure that it will not
offend again.
In reducing a jury’s award of punitive damages, the
court is in effect reweighing the evidence, which is a func-
tion of the jury and should be interfered with only upon
a clear and convincing showing that the jury was driven
by passion and prejudice. Interference with the jury’s
award should not rest upon indulging in a presumption
based merely on comparing punitive and compensatory
damages nor merely upon an award which to the appel-
late court’s mind is “too much.” As Justice Mosk stated
86a
in his dissent in Cunningham v. Simpson, supra, 1 Cal.
8d 301, 311-312: “Part of the damages awarded here
were punitive. Again, the law on this subject is clear.
‘(The jury’s estimate] of what would be sufficient as a
punishment and a deterrent and an example was very
high as compared with the actual damages assessed and
high from any point of view, but it would hardly be
candid to invite them . . . to fix such sum which expressed
their judgment in such matter, and then charge them
with bias or perversity because the measure of their ab-
horrence of defendant’s conduct and their judgment of
what would be a sufficient punishment and deterrent was
represented by a larger sum of money than that which
some other man or men would have allowed.’ (Di Giorgio
Fruit Corp. v. AFL-CIO (1963) supra, 215 Cal.App.2d
560, 581, quoting Scott v. Times-Mirror Co. (1919) 181
Cal. 345, 367 [184 P. 672, 12 A.L.R. 1007].)”
Admittedly, some of the foregoing considerations apply
equally to an award made or resulting from a reduction
by a trial judge alone as well as to an award made by a
jury. But it must be remembered that our inquiry at
bench is not into the motives of the jury. Rather, our
inquiry is whether the trial court erred in reducing the
amount of punitive damages from that which the jury
had fixed. The act of the trial court appears to have
been an attempt to be moderate. Reducing an award of
punitive damages from $1,300,000 to $750,000 does not
seem to me to be an act of passion or prejudice. In the
absence of a showing by appellant that the reduction was
the result of bias by the trial court, its determination
must be upheld on appeal.
In assessing the correct amount of punitive damages,
of equal importance as the majority’s view of propor-
tionality based on comparison of compensatory damages
are the facts considered and expressly relied on by the
trial court at bench in reducing and fixing the amount
of punitive damages in denying the motion for new
37a
trial. Among these are: “{t]he conduct of the defend-
ant was highly reprehensible, . . . [was a] fabrication
and reckless disregard; .. . [f]ailure by top management
to publish an adequate correction is substantial evidence
of malice and bad faith; . . . defendant’s net worth
amounted to approximately $2,600,000 and it had earn-
ings of $1,300,000 after taxes for the last ten month
period; . . . the defendant has absolutely no remorse for
its misdeeds; . . . it is the policy of the National Enquirer
to publish two or three unflattering articles about cele-
brities every week; ... [t]he defendant engages in a
form of legalized pandering designed to appeal to the
readers’ morbid sense of curiousity[;] [t]his style of
journalism has been enormously profitable to the defend-
ant; ... fa]n award of $1,300,000 will probably not
amount to ‘capital punishment’ (bankruptcy), . . . be-
cause of the defendant’s strong cash position.”
The fact is that this is a publication read nationally
by 16 million people. The potential for harm through a
repetition of a libel by such an institution is tremendous.
There are others to be protected from the harm. If the
risk to an intentional wrongdoer that he will be ade-
quately punished is slight, the defendant may well chance
it again. It can in effect “write it off’ as an expense or
cost of doing business. Thus punitive damages need to
be more than “an expense” item or “cost of doing busi-
ness’ which the defendant can calculate and absorb. In
a case such as this, reference to the ratio of compensa-
tory to punitive damages, such as emphasized in the ma-
jority opinion, is neither helpful nor relevant. (Vossler
v. Richards Mfq. Co. Cal.App.3d (5 Civ. 6436,
filed June 15, 1983.) Perhaps some cases lend themselves
to comparison of various ratios. I think most do not.
Ratio examination of the amount of compensatory dam-
age to amount of punitive damage does not really tell us
what is necessary to teach a defendant, such as the one
at bench, not to abuse its privileges of the freedom of
the press. On the other hand, considerations of punitive
38a
damage to defendant’s wealth may be more germane. As
stated in Neal v. Farmers Ins. Exchange (1978) 21 Cal.
3d 910, 928: “[A]lso to be considered is the wealth of
the particular defendant; obviously, the function of de-
terrence .. . will not be served if the wealth of the de-
fendant allows him to absorb the award with little or no
discomfort.”” Yet to reduce the award from $750,000 to
$150,00, as suggested by the majority in this case would
do just that.
I would affirm the trial judge’s determination of the
proper amount of punitive damages.
s/ Beach, J.
BEACH
39a
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
2d Civ. No. 66447
(Sup.Crt. No. C157213)
CAROL BURNETT,
Plaintiff and Respondent,
Vv.
NATIONAL ENQUIRER, INC.,
Defendant and Appellant.
[Filed Aug. 1, 1983]
MODIFICATION OF OPINION
THE COURT:
It is ordered that the opinion filed herein on July 18,
1983, be modified in the following particular:
The citation to Restatement, Torts (2d) § 642D, com-
ment g (1977) which appears at the end of footnote 6 on
page 21 of the opinion will be deleted, so that footnote 6
will terminate with the reference “(N.D. Calif. 1971).”
40a
CLERK’S OFFICE
COURT OF APPEAL
SECOND DISTRICT
3580 WILSHIRE BOULEVARD
SUITE 301
LOS ANGELES, CA 90010
Los Angeles, Cal.
AUG. 11 1983
No. 66447
CAROL BURNETT
vs.
NATIONAL ENQUIRER
THE COURT: Petition for rehearing denied. (appellant)
CLAY ROBBINS,
Clerk
4la
CLERK’S OFFICE
COURT OF APPEAL
SECOND DISTRICT
3580 WILSHIRE BOULEVARD
SUITE 301
LOS ANGELES, CA 90010
Los Angeles, Cal.
AUG. 11 1983
No. 66447
CAROL BURNETT
vs.
NATIONAL ENQUIRER
THE COURT: Petition for rehearing denied. (respond-
ent) (I would grant, Beach, J.)
CLAY ROBBINS,
Clerk
42a
CLERK’S OFFICE
COURT OF APPEAL
SECOND DISTRICT
3580 WILSHIRE BOULEVARD
SUITE 301
LOS ANGELES, CA 90010
Los Angeles, Cal.
OCT 17 1983
No. 66447
BURNETT
vs.
NAT’L ENQUIRER INC.
REMITTITUR ISSUED
CLAY ROBBINS,
Clerk
48a
APPENDIX B
Order of the Supreme Court of California Denying Hearing
ORDER DENYING HEARING
AFTER JUDGMENT BY THE COURT OF APPEAL
2nd District, Division 2, Civil No. 66447
IN THE SUPREME COURT
OF THE STATE OF CALIFORNIA
IN BANK
SUPREME COURT,
FILED
OCT 6 1983
LAURENCE P. GILL, Clerk
Deputy
BURNETT
Vv.
NATIONAL ENQUIRER, INC.
Petitions of appellant and respondent DENIED.
Bird, C.J., is of the opinion that Plaintiff Burnett’s
petition should be granted.
Bir, C. J.
Chief Justice
44a
APPENDIX C
Opinion of the Superior Court for the County of Los Angeles,
March 18, 1981
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
DEPARTMENT NO. 36
Hon. PETER S. SMITH, JUDGE
No. C 157213
CAROL BURNETT,
Plaintiff,
vs.
NATIONAL ENQUIRER, INC., et al.,
Defendants.
1018] THE COURT: All right. Mr. Masterson, I re-
alize that the plaintiff goes first in the argument, but I
want to try to bring this to some conclusion here, and I
think both of you have made an excellent record and we
have more than enough evidence.
The court has read last night, until my eyes drooped,
a lot of copy. But I would like you to focus on this one
thing.
We don’t deal, in most cases, in absolutes in life, we
deal with a lot of things that are hybrid, and there
probably isn’t anything spelled out in terms of stand-
ards how to weigh these things. There isn’t anything
spelled out in the statute. Unfortunately, the cases don’t
45a
spell it out. There are a few hints there but—lI will let
you address this.
The predominant appeal, from what I can tell of read-
ing the four editions of the National Enquirer that I
mentioned before, is not the timely news. It just falls
flat on its face. And if you can point out where I’m in-
correct—[1019] I have found—There were some in-
stances in there, for example, the Howard Hughes story,
that might arguably—it was about a month old at the
time.
I’m not saying the paper is totally devoid of it, but I
really challenge you to tell me where, in those editions,
really this timely news predominates, because I can’t find
it.
That to me is the critical thing in deciding whether
this is a newspaper or a magazine.
There are a lot of other things I can talk about, but
that is what it’s really all about.
MR. MASTERSON: Okay. If I may address the
court.
THE COURT: Sure.
MR. MASTERSON: My concern is, given the court’s
introductory remarks, that it is laboring under a mis-
apprehension. The concept is almost facile that news
must be current or fast-breaking to be news. It is a
dangerous concept, I think, for the court to even attempt
to embrace, because not only does it not conform with
the reality of American publishing and journalism but
it would render almost impossible the application of a
section 48(a) case by the court.
Your Honor, I have heard it said that news is what
an editor says it is. There may be some of the Fourth
Estate that would agree with me on that. Maybe some
would disagree. But, essentially, news is what somebody
doesn’t know already. That is really what news is.
And some person may pick up a paper and say, “Well,
I know all that. I saw it on television.” The electronic
media has practically obliterated the afternoon news-
papers, (1020) for all intents and purposes.
46a
What happens, Your Honor, is that stories are re-
searched, and stories are prepared, and stories are pub-
lished. Now, what is published in the Enquirer is news
to the Enquirer readers.
Now, clearly they have a type of readership that could
be a different type of readership than your local metro-
politan daily, but I submit that is a distinction without
a difference because that which is published in the En-
quirer is news to the people who buy it.
Now, for any court, in determining whether protec-
tion is going to be given to a newspaper on some sort
of a test as to whether we have current or fast-breaking
news, I think is just an almost frightening thing.
THE COURT: Well, not really. Because you have to
go and examine the rationale behind Civil Code Section
_48(a), and it deals—the whole idea behind it is that
certain types of news media, and namely the newspaper,
the radio and television, deal with fast-breaking news.
That is the predominant thing that they deal with.
Let me give you an example, and I don’t want to single
out a station, and I can’t really remember who it was.
But sometime in the last year, when these police shoot-
ings were big news, on the 11 o’clock news one night one
of the channels went out there and covered a story, and,
I think, did it in sort of a haphazard fashion, but they
didn’t have time to thoroughly check that thing out. They
couldn’t shelve it and hopefully by 6:00 the next evening
they—lI think they did [1021] rectify some of the prob-
lems. And that is why we have the retraction statute.
[1022] I just don’t see your client has presented any-
thing that really entitles it to any of the benefits.
And that’s where it’s really at.
I mean, I can’t totally ignore the fact that it’s called
itself a magazine.
I can join the County Bar Association, but if I ever
get practicing law, I’m in deep trouble, you know. I
mean, I can join a lot of organizations.
So that really isn’t significant.
47a
And I’m sure that they can switch their classification
to newspaper in the audit bureau willy-nilly to suit their
purposes.
But, I mean, I am taking that into consideration.
But I’m really talking about the policy considerations
behind the statute. I just don’t think that your client
qualifies for them.
I’m sorry. I don’t think it’s even close.
I’m not suggesting that there is a 65 percent test or
a 75 percent test.
And unfortunately, none of the cases, and I doubt if
they ever will, spell them out; but I hope somewhere
along the line they will get into talking about some of
the significant factors that you weigh.
And, of course, there is another thing that could make
this whole discussion largely academic, and I don’t want
to prejudge it because there is one fact I don’t have filed
before me in a stipulation with the court, but there is a
very high probability that your client did not comply
with the [1023] retraction statute in a timely manner
period because of the time lapse.
And they didn’t get the thing in by—I’m running the
21 days from the 4th if April, and I can’t be absolutely
positive of that because I don’t have before me when your
client received the letter not the telegram—and I think
that should be clarified before the trial is over—but it
may ultimately make no difference how I rule. It may
very well, I don’t know.
But I don’t think it’s close factually. I really don’t.
I mean, I don’t have any problem distinguishing the
New York Daily News from the National Enquirer.
Sure, they are both in tabloid forms, but that goes to
form and not substance.
And that’s what counts.
MR. MASTERSON: Well, Your Honor, I guess I
just—
48a
Here’s the concern I have, and I want to speak as re-
spectfully but yet as sincerely and as earnestly as I can.
THE COURT: Iam sure you are.
MR. MASTERSON: I personally have grave concern
as a lawyer representing a media defendant when any
court starts inquiring as to the content of a newspaper.
I don’t want to go beyond the confines of this case,
Your Honor, but what I’m suggesting is I would hate to
see any court proceed to make judgments as to, you know,
what is current, what is not current.
[1024] What I am advocating is a test simple to apply,
one that I think doesn’t really do violence to either the
philosophy or the spirit of section 48(a).
In Government Code it says that we can have such a
thing as a weekly newspaper.
A weekly newspaper wouldn’t fit somebody else’s defini-
tion, Your Honor, of current news.
And so I suggest that what the court should do would
be that if it calls itself a newspaper, if it looks like a
newspaper, then it’s a newspaper.
The problem is that if the court gets in there and
starts saying, “Well, that’s not adequate, that’s not
timely,” what about some of the local weekly newspapers?
I just think that the court’s indicated decision—I don’t
understand that the court has ruled as yet—could really
wreak havoc with the publishing industry in California.
THE COURT: Well——
MR. MASTERSON: Frankly, Your Honor, if we
haven’t published in time, I would prefer the court to
rule on that matter rather than to tread into——
THE COURT: Well, I can’t say that it is going to be
that momentous, because in Montandon v. Triangle Publi-
cations at 45 Cal.App.3d 938, TV Guide was ruled to be
a magazine by the court in that case and the earth, you
know, still turns.
I don’t think it’s had a chilling effect, as some people
say, on the dissemination of news.
49a
Unfortunately, they didn’t really go into the details
other than the fact that someone from that publication
[1025] was called and testified that they were a maga-
zine, as I recall.
MR. MASTERSON: They call themselves a maga-
zine, Your Honor.
[1026] THE COURT: They call themselves a maga-
zine.
But, you know, if I accept—
Well, let’s talk about the government code for a second,
because that, I think, we all know applies to standards
that are set forth for publishing legal notices and that
sort of thing.
And I’m confining myself to, I think, the definition in
Black’s Law Dictionary, which I can read just to—
What it says basically is this:
“A publication—” this defines a newspaper, not a
maguzine—‘“A publication usually in short form in-
tended for general circulation and published regu-
larly a short intervals containing intelligence of cur-
rent events and news of general interest.”
And it doesn’t define “magazine” in Black’s Law Dic-
tionary, unfortunately, but your client has testified, Mr.
Calder has, that they compete for advertising revenue
with the magazines.
There just is all sorts of substantial evidence.
I do not think it’s close, and I’m sorry. Maybe when
the dust settles, you can sort of stand back from this,
because apparently I’ve caught you by surprise.
MR. MASTERSON: No, no, I tell you, I’m never sur-
prised these days, Your Honor.
But I want to keep the court really from—lI’m very,
very concerned for not only my client, I’m concerned for
[1027] the court.
I don’t mean to act like a Greek bearing gifts. But
for the court to make a determination such as this, which
I submit is unnecessary to be made in this case, totally
50a
unnecessary to be made in this case, we immediately have
a court making determinations, rulings, based upon con-
tent of a paper.
And the court may have a perception as to what is
current news.
THE COURT: Why is it unnecessary?
MR. MASTERSON: Well—
THE COURT: I’m sure there are going to be a lot of
people that will be unhappy at 20 after 4:00 if it was all
unnecessary that we were here today.
MR. MASTERSON: No, no, no, no. What I’m saying
is for Your Honor to apply the test, that was unneces-
sary, because the court could have accepted the self de-
scription of the Enquirer, the physical appearance of the
Enquirer, the recognition that it is in a long history of
American journalism, tabloid journalism, Your Honor,
featuring a number of features.
But to impose a limitation and an analysis based upon
whether news is timely enough, this court’s perception
could be one way, some other court’s perception could be
another way.
Maybe we are a newspaper one week and maybe we
are not.
That’s why I say the court is undertaking for the
courts vis-a-vis the printed media an unnecessary bur-
den.
[1028] THE COURT: Well, I’m only undertaking it
for this trial court. And obviously I can be reviewed and
reversed and all that. And what I do here is not going to
bind any other judge.
I’m sure you are well aware of that.
MR. MASTERSON: Yes, sir.
THE COURT: I think unless there is something more
to add to it, I’ve pretty well made up my mind on it.
MR. MASTERSON: I understand. I appreciate the
ity, Your Honor.
It is submitted as far as I’m concerned. Thank you.
THE COURT: All right, thank you, Mr. Masterson.
5la
All right. I don’t think it needs more elaboration, be-
cause essentially this is something that goes to determin-
ing what instructions will be given to the jury.
But at least for what it is worth I am ruling that the
National Enquirer is a magazine for purposes of not
giving them the benefit of Civil Code Section 48(a).
7 * * *
52a
APPENDIX D
Opinion of the Superior Court for the County of Los Angeles,
May 13, 1981
SUPERIOR COURT OF THE
STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES
No. C 157 213
CAROL BURNETT,
Plaintiff,
vs.
NATIONAL ENQUIRER, INC., et al.,
Defendants.
{Filed May 13, 1981]
ORDER DENYING MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT;
ORDER DENYING MOTION FOR NEW TRIAL ON
CONDITION PLAINTIFF ACCEPTS REDUCTION
OF DAMAGES
MEMORANDUM OPINION,
SPECIFICATION OF REASONS
FOR REDUCING DAMAGES
It is not the intention of the court to deal at great
length with every issue raised by defendant in its motion
for judgment notwithstanding the verdict and motion for
53a
new trial, but simply to articulate the reasons for deny-
ing defendant’s motions, save and except the motion for
new trial as it relates to the issue of damages.
Initially, defendant contends that its publication of
March 2, 1976 about plaintiff was not libelous per se. It
is clear to the court that the average reader, viewing the
article in its entirety, would conclude that plaintiff was
intoxicated and causing a disturbance. The evidence is
undisputed that the article was false. There can be little
question that the described conduct of plaintiff holds her
up to riducule [sic] within the meaning of California
Civil Code section 45.
The National Enquirer’s protestation that it was not
guilty of actual malice borders on absurdity. Not only
did plaintiff establish actual malice by clear and convinc-
ing evidence, but she proved it beyond a reasonable doubt.
At the very minimum Brian Walker, the de facto gossip
columnist, had serious doubts as to the truth of the pub-
lication. There is a high degree of probability that
Walker fabricated part of the publication—certainly that
portion relating to plaintiff’s row with Henry Kissinger.
Walker received information from Couri Hay, a free
lance tipster for the National Enquirer, that Carol Bur-
nett had been in the Rive Gauche restaurant, that she or-
dered a Grand Mariner [sic] souffle and that she passed
her dessert to other parties in a boisterous or flamboyant
manner; that she had been drinking, but was not drunk.
Hay contends that this was verified through the maitre ’d.
On the other hand, Hay related to Walker that he had
received unverified information that Burnett had spilled
wine on a customer and the customer had returned the
favor by spilling water on her.
Shortly after receiving the information from Hay,
Walker called Steve Tinney, the nominal gossip colum-
nist, to see if he had any contacts in Washington who
could verify Hay’s tip. Walker expressed doubts to Tin-
ney about Hay’s trustworthiness. Tinney agreed with
54a
Walker’s assessment of Hay, but told him he had no
contacts in Washington.
Next Walker asked Grey Lyon, defendant’s employee,
to verify the “incident at the Rive Gauche”. Walker told
Lyon he had a one hour deadline to meet even though the
publication was not due to “hit the streets” for thirteen
days.
Lyon was asked to verify the following information:
That Carol Burnett had been in a Washington, D.C.
restaurant, that she had some sort of interchange with
other customers and that an altercation took place with
another customer—to wit, “the wine spilling and water
throwing incident”.
Lyon reported to Walker that he had not been able to
verify anything other than the fact that plaintiff had
passed dessert to other patrons. Additionally, he told
Walker a fact not previously disclosed to him by Hay—
that Henry Kissinger and plaintiff had carried on a good-
natured conversation at the Rive Gauche that same night.
Confronted with this disappointing revelation, Walker
expressed concern to Lyon as to whether he should pub-
lish the article. He kept pushing Lyon for his opinion.
Lyon became angry and told him that he (Walker) was
being paid to make those decisions.
At this point, it is fair to infer that Walker decided
that there was little news value in the fact that Burnett
and Kissinger had a good-natured conversation and that
Burnett distributed her dessert to other patrons. A little
embellishment was needed to “spice up” the item.
An entire afternoon was devoted to the issue of
whether the National Enquirer was a newspaper or maga-
zine. The court reaffirms its finding that the defendant
does not qualify for the protection of California Civil
Code section 48a because, when Exhibits 21, 22, 174 and
175 are viewed as a whole, the predominant function of
the publication is the conveying of news which is neither
timely nor current. Additionally, the defendant has been
55a
registered as a magazine with the Audit Bureau of Cir-
culation since 1963, and carries a designation as a maga-
zine or periodical in eight mass media directories.
In Werner v. So. Calif. etc. Newspapers, 35 Cal.2d 121,
128 (1950) our Supreme Court upheld the constitutional-
ity of California Civil Code section 48a against an attack
that it unfairly discriminated in favor of newspaper and
radio stations. The court articulated its rationale as
follows:
“In view of the complex and far flung activities of
the news services upon which newspapers and radio
stations must largely rely and the necessity of pub-
lishing news while it’s new (emphasis mine), news-
papers and radio stations may in good faith publicize
items that are untrue but whose falsity they have
neither the time nor the opportunity to ascertain.”
Since the defendant rarely deals with “news while it’s
new’, it is not entitled to the protection of Civil Code sec-
tion 48a.
Defendant has gone to great lengths to blame the ad-
verse jury verdict on prejudicial trial publicity and, in
particular, the blast by entertainer Johnny Carson. Some
will question the sagacity of Carson’s timing, but no one
can question his constitutional right to air his grievance
with defendant. While the defendant had the right to
publish an article about Carson, it exercised incredibly
poor judgment in publishing the article on the eve of the
trial.
The National Enquirer successfully challenged two
jurors who viewed or heard the Carson tirade. It did not
see fit to challenge any others even though the trial could
have proceeded with as few as eight jurors. Accordingly,
defendant cannot now complain about three other jurors
being tainted. The court questioned all jurors individu-
ally in chambers in the presence of counsel. Counsel were
afforded an opportunity to question the jurors. The court
denied the defendant’s motion for a mistrial because it
56a
was satisfied, without any reservation whatsoever, that
the remaining eleven jurors could render a fair trial to
defendant.
DAMAGES
Preliminary to the subject of general and punitive dam-
ages is the question of whether defendant published an
adequate correction since that is an issue relating to the
mitigation of damages. In the present case, two critical
questions must be answered:
1) Was the correction published with prominence sub-
stantially equal to the statement claimed to be libelous?
2) Did the correction without uncertainty and ambi-
guity honestly and fully and fairly correct the statement
claimed to be libelous?
The answer to both questions is in the negative. Had
the defendant published a slightly modified version of
Exhibit 154 (plaintiff’s request for retraction in copy
format, dated 3-15-76) (see Ex. 154, Ex. A attached)
it would not be before the court in its present predica-
ment. The correction would have passed muster even if
the reference to defendant’s negligence had been deleted.
Should the defendant have chosen not to print a headline
relating to the retraction, a photo of plaintiff in the
gossip column next to the correction would have been
sufficient to call attention to the retraction.
Instead, defendant tendered to plaintiff and published
a “half hearted” correction that had a tendency to ag-
gravate any reasonable person who had been previously
libeled. The correction was buried at the bottom of the
gossip column.
One can infer from the evidence that the National En-
quirer’s failure to publish an adequate correction was
primarily motivated by an unwillingness to engage in
some form of self deprecation which conceivably might
adversely affect its circulation
57a
Iain Calder, the President of National Enquirer, knew
shortly after March 2, 1976 that none of the libelous
material in the article could be substantiated. Both he
and Generoso Pope, the sole stockholder and Chairman of
the Board of the defendant, approved the copy of the
“correction” that appeared in the April 13, 1976 edition
of the National Enquirer.
Despite the fact that Calder knew that none of the
libelous material could be substantiated, he insisted on
using the words “we understand” as a modifier so that a
reader could conclude that even though the defendant had
no personal knowledge of the events—that the incident
could have occurred. It should be noted in passing that
the March 2, 1976 gossip column contains an apology to
Steve Allen for falsely accusing him of smashing in a
glass door of the William Morris Agency. The columnist
unequivocally observed that Steve Allen is not the win-
dow breaking type without prefacing the phrase with the
words “we understand.”
Calder and Pope’s cavalier approach to plaintiff’s de-
mand for retraction was simply another manifestation of
bad faith and malice.
COMPENSATION DAMAGES
Included within the sum of $300,000 compensatory
damages was the sum of $299,750 general damages’,
representing the jury’s award for plaintiff’s emotional
distress. Plaintiff correctly felt that the article portrayed
her as being drunk, rude, uncaring and abusive. This
portrayal was communicated to approximately sixteen
million readers nationally.
Burnett testified, “What really hurts is that I know
most people believe what they read.” This belief was
1 Plaintiff claimed special damages of $250.00, a sum expended
for attorneys fees in order to obtain a retraction.
58a
reinforced when she was taunted by a New York cab
driver, whom she never met before, “Hey, Carol, I didn’t
know you like to get into fights.”
Plaintiff is a person who is very sensitive to the prob-
lems of alcoholism. Both her parents died at the age of
46 from complications brought about by alcohol abuse.
As a result of her tragic experience, Carol Burnett be-
came active in anti-alcohol work. Since the defendant’s
publication, she has worried about being viewed by the
public as a hypocrite if and when she spoke out against
alcohol abuse.
While the record is clear that she suffered no actual
pecuniary loss as a result of the libelous article, she had
every right to suffer anxiety reactions in the immediate
aftermath of the March 2, 1976 article and the ineffectual
correction. Emotional distress is more difficult to quan-
tify than pain and suffering, but it is no less real. A re-
view of other verdicts for emotional] distress is not par-
ticularly helpful since the facts of each case vary signifi-
cantly. The fact that defendant’s false publication was
communicated to sixteen million readers coupled with an
inadequate correction, is of substantial significance in
measuring the extent of plaintiff’s emotional distress.
Finally, the only residual] aspect of emotional distress
which has lingered with plaintiff since the immediate
aftermath of the publication is the fact she occasionally
gets a little paranoid about talking too loudly in restau-
rants.
Defendant points to the fact that Burnett never sought
the services of a psychiatrist, psychologist or counselor.
Plaintiff acknowledged that she was able to set aside her
anxiety to the point where she was able to function in her
profession. Miss Burnett should be commended for not
seeking the unnecessary services of some “phony build up
artist” in order to inflate her damages. She should not be
penalized for self-treating.
59a
The court finds that plaintiff was a highly credible wit-
ness who did not exaggerate her complaints. Neverthe-
less, the jury award is clearly excessive and is not sup-
ported by substantial evidence. The court finds that the
sum of $50,000.00 is a more realistic recompense for
plaintiff’s emotional distress and special damage.
PUNITIVE DAMAGES
In reviewing the award of $1,300,000 in punitive dam-
ages the court must consider the reprehensibility of de
fendant’s acts, the wealth of the defendant and whether
punitive damages bear a reasonable relationship to actual
damages.
The evidence before the court cries out for a substan-
tial award of punitive damages. The conduct of the de-
fendant was highly reprehensible. The acts of fabrication
and reckless disregard by Brian Walker are both clearly
proscribed by California Civil Code section 3294. Failure
by top management to publish an adequate correction is
substantial evidence of malice and bad faith.
The defendant’s net worth amounted to approximately
$2,600,000 and it had earnings of $1,300,000 after taxes
for the last ten month period. The court will not consider
any evidence not before the jury, to wit: Mr. Pope’s
salary and dividends. The function of deterrence will not
be served if the wealth of the defendant will allow it to
absorb the award with little or no discomfort and by the
same token, the function of punitive damages is not
served by an award that exceeds the level necessary to
properly punish and deter.
This court has the distinct impression, after listening
to the testimony of certain officers and employees of the
National Enquirer, that the defendant has absolutely no
remorse for its misdeeds. The only issue defendant has
not seriously contested is that the libelous statements
were, in fact, false. Couri Hay, the admittedly untrust-
60a
worthy tipster, whose misinformation started this trav-
esty, was promoted to gossip columnist shortly after the
article in question was published—a position he still held
during the trial. Brian: Walker only recently left the em-
ploy of defendant. Haydon Cameron, the spokesman for
the defendants, asserts that it is the policy of the Na-
tional Enquirer to publish two or three unflattering ar-
ticles about celebrities every week.
The defendant engages in a form of legalized pander-
ing designed to appeal to the readers’ morbid sense of
curiosity. This style of journalism has been enormously
profitable to the defendant. While the First Amendment
to the United States Constitution permits such journal-
istic endeavor, it does not immunize the defendant from
accountability when the rules are broken in such a fla-
grant manner.
An award of $1,300,000 will probably not amount to
“capital punishment” (bankruptcy), as publicly espoused
by defendant’s counsel after the jury verdict, because of
the defendant’s strong cash position. The court finds that
it is excessive because it does not bear a reasonable rela-
tionship to the compensatory damages that amount to
only $50,000. A review of California case law indicates
that appellate courts have not sanctioned any particular
ratio of general and punitive damages. Each case turns
on its own set of facts.
The court finds that there is substantial evidence in the
record to support an award of $750,000 in punitive dam-
ages, a sum which should be sufficient to deter the de
fendant from further misconduct.
The motion for judgment notwithstanding the verdict
is denied. The motion for new trial is denied because
plaintiff accepted the remittitur in open court reducing
.
6la
actual damages to $50,000 and punitive damages to
$750,000.
Dated: May 18, 1981.
/s/ Peter S. Smith
PETER S. SMITH
Judge of the Superior Court
62a
LAW OFFICES
HAYES & HUME
132 South Rodeo Drive
Beverly Hills, California 90212
Telephone (213) 278-8989
March 15, 1976
Meyer Kimmel, Esq.
Kzufman, Taylor, Kimmel & Miller
41 East 42nd Street
New York, New York 10017
Re: Carol Burnett/National Enquirer
Dear Mr. Kimmel:
Pursuant to your request, I have prepared a proposed
retraction of the March 2, 1976, article concerning Caro]
Burnett. I suggest the following:
RETRACTION OF CAROL BURNETT ARTICLE
(This headline to be in the same size and in the same
place at the top of the column as was the headline in the
article. )
On March 2, 1976, this column ran an item about
Carol Burnett entitled, “Carol Burnett and Henry K.
In Row.” We reported certain incidents that sup-
posedly took place in a Washington, D.C. restaurant.
TYPE OF HEARING TRIAL
CASE No. C 157213
DerT’s ExH. No. 154
ADMITTED IN EVIDENCE
DATED 3-16-81
JOHN J. CORCORAN, COUNTY
CLERK
By MICHAEL J. BAGSE, DEPUTY
[Attachment to Superior Court’s Opinion]
63a
We were negligent in printing this article without
investigation and as a result, the facts reported were
incorrect. Those events did not happen. We apolo-
gize to Miss Burnett for making any statement or
creating any inference that she was not acting in
her usual pleasant and dignified manner.
Miss Burnett has approved of the wording of the forego-
ing retraction and she is insistent on the language con-
tained therein. She has unequivocally stated that she will
not hesitate to file suit against the National Enquirer
should this most appropriate retraction not be printed.
Yours very truly,
s/ Barry B. Langberg
BARRY B. LANGBERG
BBL:gs
| Attachment to Superior Court’s Opinion]
64a
AN ADEQUATE RETRACTION
(Picture of
Caro] Burnett
rather than
Priscilla
Presley.)
CAROL BURNETT
On March 2, 1976 this column ran an item about Carol
Burnett entitled “CAROL BURNETT AND HENRY K.
IN ROW.” We reported certain incidents that supposedly
took place at a Washintgon, D.C., restaurant. The facts
reported were incorrect. Those events did not happen.
We apologize to Miss Burnett for making any statements
or creating any inference that she was not acting in her
usual pleasant and dignified manner.
EXHIBIT “A”
[Attachment to Superior Court’s Opinion]
65a
APPENDIX E
Notice of Appeal
JOHN G, KESTER
HAROLD UNGAR
WILLIAMS & CONNOLLY
Hill Building
Washington, D.C. 20006
Telephone: (202) 331-5000
PAUL P. SELVIN COURT OF APPEAL
SELVIN & WEINER, P.C. SECOND DIST.
Suite 2400 FILED NOV. 28, 1983
1900 Avenue of the Stars CLAY ROBBINS, JR.,
Los Angeles, California 90067 CLERK
Telephone: (213) 277-1555
Attorneys for Appellant
IN THE COURT OF APPEAL
SECOND APPELLATE DISTRICT
STATE OF CALIFORNIA
Civil No. 66447
CAROL BURNETT,
Plaintiff and Respondent,
v.
NATIONAL ENQUIRER, INC.,
Defendant and Appellant.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
66a
Notice is hereby given that the National Enquirer, Inc.,
Appellant herein, hereby appeals to the Supreme Court
of the United States from the final judgment of this
Court entered July 18, 1983 and modified August 1, 1983,
that affirmed except as stated in the last paragraph of
the Court of Appeal’s opinion the judgment of the Su-
perior Court of the State of California for the County of
Los Angeles entered March 26, 1981 as modified by the
Superior Court’s orders of April 9, 1981 and May 12,
1981, filed May 13, 1981, and the order of the Superior
Court filed May 13, 1981 denying Appellant’s motions
for new trial and judgment notwithstanding the verdict.
This appeal is taken pursuant to 28 U.S.C. § 1257(2).
WILLIAMS & CONNOLLY
By: /s/ John G. Kester
JOHN G. KESTER
n
Harold Ungar
HAROLD UNGAR
Hill Building
Washington, D.C. 20006
(202) 331-5000 |
SELVIN & WF'NER, P.C.
PAUL P. SE! VIN
Suite 240)
1900 Avenue of the Stars
Los Angeles, California 90067
(218) 277-1555
Attorneys for Appellant
November 23, 1983
[Certificate of Service Omitted in Printing]
67a
APPENDIX F
Constitutional and Statutory Provisions
Constitution of the United States, First Amendment:
Congress shall make no law respecting an estab-
lishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to as-
semble, and to petition the Government for a redress
of grievances.
Constitution of the United States, Fifth Amendment:
No person shal! be held to answer for a capital, or
otherwise infamous crime, unless on a presentment
or indictment of a Grand Jury, except in cases aris-
ing in the land or naval forces, or in the Militia,
when in actual service in time of War or public dan-
ger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb;
nor shall be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor
shall private property be taken for public use, with-
out just compensation.
Constitution of the United States, Eighth Amendment:
Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments
inflicted.
Constitution of the United States, Fourteenth Amend-
ment:
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-
68a
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....
Civil Code of California, section 45:
Libel
LIBEL, WHAT. Libel is a false and unprivileged
publication by writing, printing, picture, effigy, or
other fixed representation to the eye, which exposes
any person to hatred, contempt, ridicule, or obloquy,
or which causes him to be shunned or avoided, or
which has a tendency to injure him in his occupation.
Civil Code of California, section 45a:
Libel on its face; other actionable defamatory
language
A libel which is defamatory of the plaintiff with-
out the necessity of explanatory matter, such as an
inducement, innuendo or other extrinsic fact, is said
to be a libel on its face. Defamatory language not
libelous on its face is not actionable unless the plain-
tiff alleges and proves that he has suffered special
damage as a proximate result thereof. Special dam-
age is defined in Section 48a of this code.
Civil Code of California, section 48a:
Libel in newspaper; slander by radio broadcast
1. Special damages; notice and demand for cor-
rection. In any action for damages for the publica-
tion of a libel in a newspaper, or of a slander by
radio broadcast, plaintiff shall recover no more than
special damages unless a correction be demanded
and be not published or broadcast, as hereinafter
69a
provided. Plaintiff shall serve upon the publisher,
at the place of publication or broadcaster at the place
of broadcast, a written notice specifying the state-
ments claimed to be libelous and demanding that the
same be corrected. Said notice and demand must be
served within 20 days after knowledge of the publi-
cation or broadcast of the statements claimed to be
libelous.
2. General, special and exemplary damages. If a
correction be demanded within said period and not
be published or broadcast in substantially as con-
spicious a manner in said newspaper or on said
broadcasting station as were the statements claimed
to be libelous, in a regular issue thereof published
or broadcast within three weeks after such service,
plaintiff, if he pleads and proves such notice, demand
and failure to correct, and if his cause of action be
maintained, may recover general, special and exem-
plary damages; provided that no exemplary damages
may be recovered unless the plaintiff shall prove that
defendant made the publication or broadcast with
actual malice and then only in the discretion of the
court or jury, and actual malice shall not be inferred
or presumed from the publication or broadcast.
8. Correction prior to demand. A correction pub-
lished or broadcast in substantially as conspicious a
manner in said newspaper or on said broadcasting
station as the statements claimed in the complaint
to be libelous, prior to receipt of a demand therefor,
shall be of the same force and effect as though such
correction had been published or broadcast within
three weeks after a demand therefor.
4. Definitions. As used herein, the terms “general
damages,” “special damages,” “exemplary damages”
and “actual malice,” are defined as follows:
(a) “General damages” are damages for loss of
reputation, shame, mortification and hurt feelings;
70a
(b) “Special damages” are all damages which
plaintiff alleges and proves that he has suffered in
respect to his property, business, trade, profession
or occupation, including such amounts of money as
the plaintiff alleges and proves he has expended as a
result of the alleged libel, and no other;
(c) “Exemplary damages” are damages which
may in the discretion of the court or jury be re-
covered in addition to general and special damages
for the sake of example and by way of punishing a
defendant who has made the publication or broad-
cast with actual malice;
(d) “Actual malice” is that state of mind arising
from hatred or ill will toward the plaintiff; pro-
vided, however, that such a state of mind occasioned
by a good faith belief on the part of the defendant
in the truth of the libelous publication or broadcast
at the time it is published or broadcast shall not
constitute actual malice.
Civil Code of California, section 48.5:
Defamation by radio; non-liability of owner, licensee
or operator of broadcasting station or network
. “ * *
(4) As used in this Part 2, the terms “radio,”
“radio broadcast,” and “broadcast,” are defined to
include both visual an nd radio broadcasting.
(5) Nothing in this section contained shall de-
prive any such owner, licensee or operator, or the
agent or employee thereof, of any rights under any
other section of this Part 2.
Civil Code of California, section 3294 (as enacted 1872,
as amended by Stats. 1905, c. 463, p. 621, § 1):
Exemplary damages; when allowable
Tla
In an action for the breach of an obligation not
arising from contract, where the defendant has been
guilty of oppression, fraud, or malice, express or im-
plied, the plaintiff, in addition to the actual damages,
may recover damages for the sake of example and
by way of punishing the defendant.
Civil Code of California, section 3294 (as amended by
Stats. 1980, c. 1242, p. 4217):
Exemplary damages; when allowable
(a) In an action for the breach of an obligation
not arising from contract, where the defendant has
been guilty of oppression, fraud, or malice, the plain-
tiff, in addition to the actual damages, may recover
damages for the sake of example and by way of
punishing the defendant.
(b) An employer shall not be liable for damages
pursuant to subdivision (a), based upon acts of an
employee of the employer, unless the employer had
advance knowledge of the unfitness of the employee
and employed him or her with a conscious disregara
of the rights or safety of others or authorized or
ratified the wrongful conduct for which the damages
are awarded or was personally guilty of oppression,
fraud, or malice. With respect to a corporate em-
ployer, the advance knowledge, ratification, or act of
oppression, fraud, or malice must be on the part of
an officer, director, or managing agent of the corpo-
ration.
(c) As used in this section, the following defini-
tions shall apply:
(1) “Malice” means conduct which is intended by
the defendant to cause injury to the plaintiff or con-
duct which is carried on by the defendant with a
conscious disregard of the rights or safety of others.
72a
(2) “Oppression” means subjecting a person to
cruel and unjust hardship in conscious disregard of
that person’s rights.
(3) “Fraud” means an intentional misrepresenta-
tion, deceit, or concealment of a material fact known
to the defendant with the intention on the part of
the defendant of thereby depriving a person of prop-
erty or legal rights or otherwise causing injury.
Penal Code of California, section 249:
PUNISHMENT OF LIBEL. Every person who will-
fully, and with a malicious intent to injure another,
publishes or procures to be published any libel, is
punishable by fine not exceeding five thousand dol-
lars, or imprisonment in the County Jail not exceed-
ing one year.
73a
APPENDIX G
Opinion of the California Court of Appeal,
Second Appellate District, in Faan v. National Enquirer, Inc.,
78 Cal. App. 3d 543 (1978)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE
STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
Kwot KIT FAAN,
Plaintiff and Appellant,
V.
NATIONAL ENQUIRER, INC.,
Defendant and Respondent.
2d Civil No. 51523
(Super. Ct. No. C 172266)
Filed Mar. 13, 1978
Appeal from an order of the Superior Court of Los
Angeles County. Philip M. Saeta, Judge. Affirmed.
Plaintiff Kwot Kit Faan appeals from an order by
the trial court sustaining the demurrer of defendant
National Enquirer, Inc. (hereinafter referred to as En-
quirer) to Mr. Faan’s complaint for defamation and loss
of consortium’ based on an alleged libel to his wife
Marianna Liu. [546]
1 Although the original appeal from the order sustaining the
demurrer was premature, the appeal was subsequently perfected
when an order of dismissal as to plaintiff-appellant Faan was
entered by the trial court.
74a
FACTS
During August of 1976 the Enquirer published two
articles concerning the relationship of former President
Richard M. Nixon with Marianna Liu. The first article
appeared in the Enquirer issue dated August 10, 1976;
the second article which dealt with Mr. Nixon, Mrs. Liu
and the U.S. Immigration and Naturalization Service ap-
peared in the Enquirer issue of August 24, 1976; and
Mrs. Liu served demands for retraction on August 11,
1976, and again on August 19, 1976.
On August 30, 1976, Mrs. Liu filed a complaint for
damages which was never served. On August 14, 1976,
Mrs. Liu and her husband, Mr. Faan, together filed a
complaint entitled “First Amended Complaint for Dam-
ages and Loss of Consortium.” This complaint, which
contained 17 causes of action, was served on the En-
quirer. On December 15, 1976, the Enquirer demurred
generally and specifically to each of the 17 causes of
action.
The trial court overruled most of the Enquirer’s de-
murrers pertaining to the causes of action alleged by
Mrs. Liu. However, the demurrers of the Enquirer to
each of the causes asserted in behalf of Mr. Faan were
sustained with leave to amend in a 30-day period. No
amendment of the complaint was thereafter made on be-
half of Mr. Faan and counsel at oral argument verified
that in their view the allegations were as complete as the
factual circumstances of the case would permit.
The notice of appeal declares that Mr. Faan appeals
from the trial court’s order sustaining the demurrers of
the Enquirer to his complaint and disiissing his action.
The contentions of plaintiff Faan on appeal are based
solely on the ground that the general demurrer was im-
properly sustained to the cause of action that he at-
tempted to allege for loss of consortium and invasion of
privacy. It therefore appears that he has abandoned his
75a
attempt to allege that he was directly damaged by libelous
statements made by the Enquirer which named and iden-
tified only Mrs. Liu.
In his cause of action for loss of consortium (the seven-
teenth cause of action in the first amended complaint)
Mr. Faan makes, in substance, the following allegations:
that he and Mrs. Liu are husband and wife and reside
in Los Angeles County; that the Enquirer is a Florida
corporation doing business in California; that the En-
quirer publishes a weekly newspaper in Los Angeles, Cali-
fornia, and throughout the United States [547] that has
a wide circulation and is read by large numbers of per-
sons; that Mrs. Liu is a cocktail waitress and her hus-
band is a restaurant owner in the cities of Maywood and
Los Angeles; that Mrs. Liu is by virtue of her occupa-
tion well known and recognized by many people and that
she has at all times enjoyed a good name and reputation
in her occupation and with her fellow citizens; that on
August 10, 1976, in all editions of the Enquirer the de-
fendants published on the front page and in the text of
the paper a picture and article falsely and maliciously
and with intent to defame Mrs. Liu; that said article
declared in reference to Mrs. Liu: “Nixon Romanced
Suspected Red Spy” and “Richard Nixon Dated Hong
Kong Hotel Hostess Marianna Liu—While the FBI Was
Investigating Her as a Suspected Spy;” that said article
was distributed throughout Los Angeles and the United
States; that defendants intended and members of the pub-
lic understood these statements as asserting that Mrs.
Liu was a Communist spy when this statement was false,
malicious and unprivileged; that this act was intended
to and did expose both Mr. Faan and Mrs. Liu to hatred,
ridicule and obloquy causing them to be shunned and
avoided and proximately causing them to sustain severe
and continuing nervous shock and to suffer great mental
anguish, humiliation and shame; that on August 11, 1976,
Mr. Faan and Mrs. Liu caused to be served on defendants
76a
a demand for retraction pursuant to Civil Code section
48a, subdivision 1; that defendants failed and refused
and continue to fail and refuse to publish a retraction;
that defendants responded by letter attached as an ex-
hibit and incorporated by reference in which defendants
denied that the article printed in their newspaper ac-
cused Mrs. Liu of the conduct alleged and asserting that
they merely stated facts confirmed by two reporters in
an interview with Mrs. Liu.
Mr. Faan in the seventeenth cause of action further
alludes to numerous specific statements printed by the
Enquirer which allegedly exposed him and his wife to
hatred, contempt, ridicule and obloquy including, inter
alia: “The FBI’s dossier on Nixon’s dates with Mari-
anna showed that at first the romance was ‘Hot and
Heavy’, the official revealed,” and “William C. Sullivan,
former FBI Assistant: Director, confirmed to the EN-
QUIRER as a spy suspect [sic]—and that a file on her
had been sent to the FBI headquarters in Washington.”
He alleged that as a proximate result of the conduct of
defendants he suffered “loss of consortium, loss of com-
fort, solace and sexual relations with plaintiff, MARI-
ANNA LIU causing plaintiff KWOT KIT FAAN great
mental, physical and emotional strain,” and that the ar-
ticles were published by defendants in the Enquirer with
knowledge of their falsity or with a reckless disregard
for whether they were true. Wherefore, he prays for
general [548] damages for loss of consortium, and for
special damages according to proof.
The court sustained the demurrer to the cause of ac-
tion for loss of consortium with leave to amend on the
basis that Faan “did not demand a retraction and his
damages are akin to general rather than special dam-
ages.” The statutory time for filing a retraction is 20
days after knowledge of the publication (Civ. Code, § 48a,
subd. 1). Since, as Mr. Faan points out, this time period
had long since run at the time the ruling on the de-
77a
murrer was made, he was unable to amend his com-
plaint to cure the defect found by the trial court. Plain-
tiff Faan thereafter failed to amend the complaint; his
attempted appeal from the trial court’s ruling has been
perfected by order of dismissal subsequently entered.
ISSUES
On appeal plaintiff-appellant Faan contends (1) that
he sufficiently alleged a cause of action for loss of con-
sortium; (2) that he is protected because this cause of
action arose out of the defamatory statements made by
defendants-respondents against his wife, Marianna Liu,
who did demand a retraction (Civ. Code, § 48a, subd. 1)
and after its denial did sue for defamation; and (3) that
the demand for retraction which applies only to libel and
slander actions is not a condition precedent to his action
for loss of consortium which constitutes an independent
tort.
DISCUSSION
We determine the issues presented on this appeal in the
perspective of the statute which is determinative of the
rights and remedies of persons affected by the publication
of libelous material by a newspaper. Civil Code section
48a, subdivision 1, provides:
“In any action for damages for the publication of
a libel in a newspaper, or of a slander by radio
broadcast, plaintiff shall recover no more than special
damages unless a correction be demanded and be not
published or broadcast, as hereinafter provided.
Plaintiff shall serve upon the publisher, at the place
of publication or broadcaster at the place of broad-
cast, a written notice specifying the statements
claimed to be libelous and demanding that the same
be corrected. Said notice and demand must be served
within 20 days after knowledge of the publication or
broadcast of the statements claimed to be libelous.”
(549)
78a
Although the cause of action which is the subject of this
appeal is cast in the form of an action for loss of con-
sortium, it is based on the tort of libel to plaintiff-
appellant Faan’s wife. Consequently, the sufficiency of
the allegations is determined by the policies and limita-
tions controlling libel actions. The nature of the injury
which is the consequence of the action for loss of con-
sortium is intangible. It is measured not by economic
loss but by the value of such elements as loss of “con-
jugal followship and sexual relations’ (Rodriguez Vv.
Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 385) and
includes, inter alia, loss of affection and society, comfort,
protection, support, pleasure, and household services.
Leaving aside the nature and difficulty of the proof which
we anticipate in an action such as the litigation at bench
where the damages of both wife and husband are limited
to mental suffering or disturbance, we are persuaded
that because plaintiff-appellant Faan may claim in an
action for loss of consortium only general damages, he
cannot prevail as against the general demurrer of
defendants.
“It is of course the general rule that, in the absence of
a privilege, anyone who actively participates in the pub-
lication of a false and libelous statement is liable for
special, general and even punitive damages... .
“( However], in this state the general rules allowing
general and punitive damages to a plaintiff for the pub-
lication of defamatory matter do not apply to newspapers
and radio broadcasting stations. To the contrary, the lia-
bility of newspapers and radio broadcasting stations for
the publication or broadcast of libelous matter has been
carefully limited by statute. In fact, under Civil Code sec-
tion 48a no one who participates in a libelous newspaper
publication or radio broadcast, such as a reporter, colum-
nist, author, critic, editor or publisher, is liable for either
general or punitive damages unless a retraction or cor-
rection is first requested by the plaintiff and refused by
79a
the publisher of the newspaper or the operator of the
broadcasting station (Pridonoff v. Balokovich [ (1951) ]
36 Cal. 2d 788. Furthermore, to recover general or puni-
tive damages the plaintiff must plead and prove that he
requested a retraction or correction and his request was
ignored. . . .” (Di Giorgio Corp. v. Valley Labor Citizen
(1968) 260 Cal. App. 2d 268, 273-274, original italics.)
Section 48a, subdivision 4, defines general and special
damages as follows: [550]
“(a) ‘General damages’ are damages for loss of
reputation, shame, mortification and hurt feelings;
“(b) ‘Special damages’ are all damages which
plaintiff alleges and proves that he has suffered in
respect to his property, business, trade, profession or
occupation, including such amounts of money as the
plaintiff alleges and proves he has expended as a
result of the alleged libel, and no other.”
The limitations on recovery for libel have previously
been considered, upheld and reinforced by well reasoned
judicial decisions wherein the competing public interests
have been resolved. The California Supreme Court in the
case of Werner v. Southern Cal. etc. Newspapers (1950)
35 Cal. 2d 121, determined the constitutionality of Civil
Code section 48a and, in refuting objections to the limita-
tions therein prescribed, it declared the presumed legisla-
tive objectives. “There are at least two bases on which
the legislature could reasonably conclude that the retrac-
tion provisions of section 48a provide a reasonable sub-
stitute for general damages in actions for defamation
against newspapers and radio stations, namely, the dan-
ger of excessive recoveries of general damages in libel
actions and the public interest in the free dissemination
of news.
“General damages are allowed for ‘loss of reputation,
shame, mortification and hurt feelings’ (Civ. Code § 48a),
80a
but the extent of such injuries is difficult to determine.
. . » The Legislature could reasonably conclude that re-
covery of damages without proof of injury constitutes an
evil.” (Id., at p. 126.)
Plaintiff in the Werner case contended that “no public
interest is served by the publication of false news and
that it is desirable to enforce full responsibility as a
deterrent to careless or malicious publication.” (Jd., at
p. 128.) The court observed that although forceful argu-
ments might be made to that effect, the Legislature had
adopted the legislation as the appropriate means to rec-
oncile the competing interests and the court must as-
sume it acted in good faith and without improper motive.
The court further observed: “[{A]lthough it extends its
protection to those who may deliberately and maliciously
disseminate libels, the Legislature could reasonably con-
clude that it was necessary to go so far effectively to pro-
tect those who in good faith and without malice inad-
vertently publish defamatory statements... .” (Jd., at
p. 134.) The court thereafter concluded that the interest
protected might be satisfied more completely and effec-
tively by a retraction. “. . . [A]s far as vindication of
character or [551] reputation is concerned, it stands to
reason that a full and frank retraction of the false
charge, especially if published as widely and substantially
to the same readers as was the libel, is usually in fact
a more complete redress than a judgment for damages.’
[Citation.] ...” (Jd., at p. 183.)
Accordingly, the appellate court in a subsequent de
cision sustained a general demurrer to a complaint alleg-
ing that a libelous newspaper publication had injured the
plaintiff by invading his right to privacy where no re-
quest for retraction was made. The court observed, rely-
ing on Fairfield v. American Photocopy etc. Co. (1955)
138 Cal.App.2d 82, that the gist of the cause of action in
a privacy case is not injury to character or reputation as
in libel, but a wrong of a personal character resulting in
8la
injury to feelings without regard to any effect which the
publication might have on property, business, pecuniary
interest, or standing in the’ community. (Werner V.
Times-Mirror Co. (1961) 193 Cal. App.2d 111, 116.) The
court noted that the interests protected by the tort of in-
vasion of right of privacy and that of defamation differed.
“TB]ut each of such interests conceivably could be invaded
by the same publication in a particular case. [Citations.]
However, while the appellant in the present case has dis-
claimed any reliance on the law of libel, it is clear that
he could not, in any event, recover under the theory of
the tort of libel in the absence of a demand for a retrac-
tion and a failure to comply therewith (Civ. Code, § 48a)
unless he could establish special damages. (Jefferson V.
Chronicle Publishing Co., 108 Cal.App.2d 538, 539... .)
Yet, assuming some of the statements of which the ap-
pellant complains in his amended complaint to be libelous
in nature, to permit him to recover general damages in
this case under the theory of the invasion of his right
of privacy is to sanction an evasion of the provision of
section 48a of the Civil Code... .” (Werner v. Times-
Mirror Co., supra, 193 Cal.App.2d 111, 120-122, fns.
omitted; see also Briscoe v. Reader’s Digest Association,
Inc. (1971) 4 Cal.3d 529.)
In the case at bench we are confronted with a similar
issue. The interests protected by the tort characterized
as loss of consortium are personal and incorporate ele-
ments of conjugal affection and society and sexual rela-
tions while the general damages in a libel action are
awarded for injury to the character or reputation of the
plaintiff. As the lower court observed, these interests
can conceivably be invaded by the same publication, but a
plaintiff is not permitted to recover general damages on
the basis of a libel without a demand for retraction. We
believe that [552] the similarity of the recovery of gen-
eral damages, in each case a compensation for emotional
distress and injury, outweighs any distinction which
might be drawn between mental suffering due to damage
82a
to reputation and that due to loss of conjugal society and
sexual relations. The legislative intent was to protect
publishers in the interests of freedom of speech and the
press, from claims for general damages arising out of
libelous material which may have been published in good
faith, unless the claimant made a request for retraction.
It is conceded by plaintiff-appellant Faan that he
neither joined in the request for retraction made by his
wife to the Enquirer nor made the effort to observe this
formality independently. It is well established by the
foregoing authorities that in the absence of a request for
retraction, where a cause of action is based on newspaper
publication of a libel, a plaintiff is limited to special
damages resulting from the publication. Special damages
include losses suffered in respect to his property, business,
trade, profession or occupation (Di Giorgio Corp. v. Val-
ley Labor Citizen, supra, 260 Cal.App.2d 268). More-
over, allegations of special] damages are indispensable in
an action for defamation where the material published
was not as to the plaintiff libelous per se (Campbell v.
Jewish Com. for P. Service (1954) 125 Cal.App.2d 771.
It is clear that the material published in the case at
bench was not only not libelous per se as to plaintiff-
appellant Faan, but did not name or refer to him either
directly or indirectly. We also note that the pleadings
consistently refer to husband and wife by their different
names, e.g., Marianna Liu and Kwot Kit Faan. The
newspaper articles refer only to Mrs. Liu.
It is on this basis that plaintiff-appellant Faan contends
that he not only was not required to make a request for
retraction but that it would not be reasonable for him
to make such a request since he was not named in the
publication. The question, therefore, is whether the policy
of the law legitimately extends to the protection of the
interest plaintiff-appellant Faan has asserted which is
based upon and derivative of the tort of defamation of
the character and reputation of his wife. This court is
83a
persuaded that the remedy for loss of consortium, the
thrust of which is the protection of the value of the feel-
ings and activities enjoyed by the couple in the conjugal
relationship, is limited under the recent decisions of the
California Supreme Court by policy considerations relat-
ing to the character of the damages, the nature of the
relationship, and the extent of the injury to the spouse.
[553]
The California Supreme Court held in Rodriguez v.
Bethlehem Steel Corp., supra, 12 Cal. 3d 382, that Cali-
fornia would no longer adhere to the rule that a married
person whose spouse was injured by the negligence of a
third party had no cause of action for loss of consortium,
(that is for loss of conjugal fellowship and sexual rela-
tions) as previously established by such decisions as Des-
hotel v. Atchison, T. & S.F. Ry. Co. (1958) 50 Cal. 2d
664, and West v. City of San Diego (1960) 54 Cal. 2d
469.
In the Rodriguez case the husband was injured when
struck on the head by a falling pipe weighing over 600
pounds. “[T]he blow caused severe spinal cord damage
which has left him totally paralyzed in both legs, totally
paralyzed in his body below the mid-point of the chest,
and partially paralyzed in one of his arms.” (Rodriguez
v. Bethlehem Steel Corp., supra, 12 Cal. 3d at pp. 885-
386.) As a consequence, his wife’s social and recreational
life was severely restricted, she was required to leave her
employment to nurse her husband through his pain and
mental anguish, view and minister to his physiological
needs, sacrifice sexual relations and all hope of bearing
his children, and become a nurse to him attending to his
condition which was apparently permanent. The Cali-
fornia Supreme Court considered and rejected one by
one former obstacles to the extension of the remedy of
loss of consortium to Mary Rodriguez, including stare
decisis, usurpation of legislative authority without an
enabling statute, indirect nature of the injury, specula-
84a
tive character of damages, potential extension of the
remedy to other classes of plaintiffs such as child or
parents, fear of double recovery, and concern over retro-
active effect of the judicial rule.
It is clear from the language of the Rodriguez decision
that in extending the remedy for loss of consortium in a
case where defendant’s negligent act caused grievous
physical injury to Richard Rodriguez, the court contem-
plated essentially the situation in which the defendant
engages in conduct which involves the risk of physical
harm to another person. The court, alluding to language
in its decision in Dillon v. Legg (1968) 68 Cal. 2d 728,
observed that the issue revolved about the determination
of foreseeability, since the defendant owes a duty of care
to all persons who are foreseeably endangered by his con-
duct, and the extent of the duty of care depends on the
circumstances of each case, including the relationship of
the parties and the nature of the threatened injury.
(Rodriguez v. Bethlehem Steel Corp., supra, 12 Cal. 3d
382, 399.) Thus the negligent driver could be held liable
for emotional trauma suffered by the mother [554] who
witnessed the death of her child struck by his car. Ac-
cordingly, the California Supreme Court declared as to
the Rodriguez case that: “(Bly parity of reasoning, we
conclude in the case at bar that one who negligently
causes a severely disabling injury to an adult may rea-
sonably expect that the injured person is married and
that his or her spouse will be adversely affected by that
injury... .” (/d., at pp. 399-400, italics added.)
In the period that has elapsed since the decision in
Rodriguez the California Supreme Court has had occa-
sion to limit the rule in that case. It has held that a child
has no cause of action for the negligently caused loss of
the affection and society of a parent (Borer v. Ameri-
can Airlines, Inc. (1977) 19 Cal. 8d 441; and that par-
ents can state no cause of action for the loss of the affec-
tion and society of their child (Baxter v. Superior Court
85a
(1977) 19 Cal. 3d 461). The court in so holding ob-
served: “Judicial recognition of a cause of action for
loss of consortium, we believe, must be narrowly circum-
scribed. Loss of consortium is an intangible injury for
which money damages do not afford an accurate measure
of suitable recompense; .. .” (Borer v. American Air-
lines, Inc., supra, 19 Cal.2d 441, 444.) The court based
its decision on the necessity of drawing reasonable limita-
tions since not every loss can be made compensable in
money damages and legal causation must terminate
somewhere. It took cognizance of the social burden of
proving the damages and the cost of the burden of pay-
ment of such awards which must be borne by the general
public in the form of increased insurance premiums or
the enhanced danger that accrues from the choice of
many persons to go without insurance, and the cost of
administration of a system to determine and pay con-
sortium awards. The court emphasized the inadequacy
of money damages to alleviate the injury and the diffi-
culty of their proof and measure in light of the social
cost of paying such awards. (Borer v. American Air-
lines, Ine., supra, 19 Cal.3d 441, 447.)
In view of the foregoing considerations of policy and
the character of the damages and cause of action in loss
of consortium as described in the Rodriguez decision, we
hold that such a remedy should not be extended to the
instant situation which involves the alleged publication
of a libel as to the spouse of the claimant (plaintiff-
husband herein) as distinguished from the situation
where the defendant drives an automobile or engages in
heavy construction activity of an inherently hazardous
character. [555]
Accordingly, the trial court properly upheld the de
murrer of defendants on the ground that plaintiff-
appellant Faan “did not demand a retraction and his
damages are akin to general rather than special damages.”
86a
DISPOSITION
The judgment of dismissal is affirmed.
CERTIFIED FOR PUBLICATION
HANSON, J.
We concur:
LILLIE, Acting P.J.
THOMPSON, J.
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