# Appendix — National Enquirer, Inc. v. Burnett > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1020%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1984 - **Citation:** 465 U.S. 1014 ## Text No. |” j ANT PR ' erry IN THE 2K 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 . Opinion and Judgment of the California Court of Appeal, Second Appellate District, with Modification and Orders Denying Rehearing ............0.200000000000..2.--. . Order of the Supreme Court of California Denying SIIIIIIL suinistatenbihcciedeiel naiistita ainda spaesnanmsetaanasditeddeadialaateibaiae . Opinion of the Superior Court for the County of ey. CUMS CYS | SC ee . Opinion of the Superior Court for the County of te Ts I is EE acecccnicsctcnctssceccedeceseesnsintgaseanns ie CO YONI Se ok eae . Constitutional and Statutory Provisions .................... . Opinion of the California Court of Appeal, Second Appellate District, in Faan v. National Enquirer, Ine., 78 Cal. App. 8d 548 (1978) ..................0........... la 43a 44a 52a 65a 67a la 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: Direct [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385011_1020%3A2. Public record. Not legal advice.