Petition for Writ of Certiorari — Boyd v. Black

- Supreme Court, U.S.

ees E Dh

JUL 29° 1989

JOSEPH F. SPANIOL, JR.

Q a) - 6 5 CLERK _|

In the Supreme Court

OF THE

United States

SECOND APPELLATE DISTRICT

OCTOBER TERM 1989

INEZ C. Boyp

Petitioner,

VS.

ANGELA BLACK, THOMAS VAN AMBURG,

KENNETH NELSON, and KABC-TELEVISION

AMERICAN BROADCASTING COMPANIES

(now CAPITAL CITIES/ABC, INc.)

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE CALIFORNIA COURT OF APPEAL

INEZ C. BoyD

4649 Paula Way

Fair Oaks. California 9562:

(916) 967-7504

In Propria Persona

Bowne of Los Angeles. Inc., Law Pmnters (213) 742-5600

QUESTION PRESENTED

This Court has held that under the First Amendment to

the United States Constitution, a Plaintiff who is a “‘pub-

lie official’”’ and one who is a “public figure” must both

prove actual malice by clear and convineing evidence

before any damages may be recovered in a defamation

action, but that a “private” citizen is not bound by the

same restrictions.

This Court has not, however, articulated who is and,

more importantly, who is not a “publie figure’’ — the term

‘“publie figure’ remains undefined. The void left may. be

filled by submission of false information, known to be

false, to the courts, with some of the information having

been secured illegally. Direct appeals are being made to

stored knowledge, for prejudged decisions, instead of for

individual, case by case, determinations. The “chilling

effect’ first envisioned for the press, through curtailment

of free speech, is now being felt by private citizens who

are being denied open access to the courts.

The question presented is:

Whether the First Amendment protection of free

speech extends the broad public-interest privilege to the

news media, in a case of Slander Per Se, for submission of

false information, illegally obtained, to the courts, thus,

promoting a “public figure” image — where none existed,

before — for a “private ’ citizen, without the courts’ vali-

dation of key evidence?*

*The corrected name “AMERICAN BROADCASTING COMPA-

NIES, INC.” (now CAPITAL CITIES/ABC, INC.) was added by

plaintiff's motion amending the original Complaint and noted by the

pre-trial court, 2-25-88, pursuant to Court Rule 28.1.

\

il

TABLE OF CONTENTS

QUESTION PRESENTED ............-.--55-5:

PETITION FOR A WRIT OF CERTIORARI .....

OPINIONS BELOW .... 2.2... ccc cee cceseseecces

JURISDICTION o..:5 006500004 s0wkaseeaneenssa ces

CONSTITUTIONAL PROVISIONS INVOLVED ..

STATEMENT OF THE CASE .............+..-.

KEASONS FOR GRANTING THE WRIT........

i

Il.

III.

CERTIORARI SHOULD BE GRANTED

TO RESOLVE THE CONFLICT BE-

TWEEN THE DECISIONS BELOW AND

THE DECISIONS OF THIS COURT.....

CERTIORARI SHOULD BE GRANTED

TO RESOLVE AN IMPORTANT AND RE-

CURRING CONSTITUTIONAL QUES-

TION LEFT OPEN BY THIS COURT'S

DECISIONS . <4 cca UkoGun ee eeee shee

CERTIORARI SHOULD BE GRANTED

FOR MORE INPUT FROM THIS COURT

ON THE STATUS OF THE BASIC CON-

STITUTIONAL RIGHTS OF PRIVATE

CITIZENS — FREEDEOM OF SPEECH,

DUE PROCESS—IN THE CN-GOING

CLASH. BETWEEN PRIVACY AND

FREE EXPRESSION FOR THE PRESS

13

18

Appendix A.

Appendix B.

Appendix C.

Appendix D-1.

Appendix D-2.

Appendix E.

Appendix F.

Appendix G.

Appendix H.

ill

Index to the Appendices

Court of Appeal Opinion filed 2/10/89

Appellant Petition for Review Denied

by Court of Appeal

Remittitur Notice

Los Angeles County Drug Abuse Plan-

ning Chart

Declaration of Roger G. Bell

Declaration of Alban I. Niles

Anti-Defamation League

Minutes South East Regional Coalition

on Drugs and Alcohol Abuse

Audit Affidavit

iv

TABLE OF AUTHORITIES CITED

Cases

Page

Brewer v. Hearst Publishing Co., 185 F.2d 846.... 26

Beauharnais v. Illinois, 348 U.S. 250 ............ 3,15

Chaplinsky v. New Hampshire, 315 U.S. 568...... 3, 20

Coz Broadcasting Corp. v. Cohn, 420 U.S. 491 .... 24

Curtis Publishing Co. v. Butts (1967) 388 U.S. 130 17, 21

Flanagan v. Nicholson Publishing Co., 137 La 588 26

Garrison v. Louisiana, 379 U.S. 64.........-.45. 19, 20

Gertz v. Rebert Welch, Inc., 418 U.S. ...... Pere 16

Henry v. Collins, 380 U.S. 356 (1965) .........-. 20

Hutchinson v. Proxmire (1979) 4438 U.S. 111 ..... 29

Konigsberg v. State Bar of California, 366 U.S. 36 3

Near v. Minnesota, 283 U.S. 697 .............4-. 3

New York Times Co. v. Sullivan, 376 U.S. 268 ....

Pennekamp v. Florida, 328 U.S. 3381...........-. 3

Reader’s Digest Assn. v. Superior Court (1984) 37

eh bere errr cern eee ete 17

Rosenblatt v. Baer, 383 U.S. 75 (1966)........... 20

Roth v. United States, 354 U.S. 476 .......... 2, 3, 13, 15

Shirley v. Brown, State Supreme Court of Califorma,

i MEETS TORUTETTTCTIC CECT Cee 3

Smith v. Daily Mail Publishing Co., 443 U.S. 103 21

Time, Inc. v. Hill, 385 U.S. 374 (1967) ........-. 20

Times Film Corp. v. City of Chicago, 365 U.S. 48 3

Wolston v. Reader’s Digest Assn., Inc. (1979) 4438

TABLE OF AUTHORITIES CITED

Constitution

Page

United States Constitution

First Amendment..................... i, 2, 5, 18, 15

Fourth Amendment......................... 7

Statutes

California Civil Code

ie: SEED 640s eee eee 3, 14, 15, 16, 18, 29

ee Lh) Pee eee err eee awa aeie t

United States Code, Title 28, See. 1257(a) ...... 4

Miscellaneous

Los Angeles County Narcotics and Dangerous

Drugs Commission Minutes, date August 5, 1981

PMY @ nvncuna cee cvuse ae ee ee 10

Newspaper Article, June 1, 1968 Whittier Study

Group Seeking Socia! Reality — Physician's

Wife Spurs Effort to Learn How to Resolve

Problems Scientifically ...................... 25

Sacramento Bee, November _ , 1987, How the press

eer RUE Cg gg soc chit nne eee Q

Senate Bill 714 ............. 13

In the Supreme Court

OF THE

United States

SECOND APPELLATE DISTRICT

Octoper Term 1989

INEZ C. Boypb

Petitioner,

VS.

ANGELA BLACK, THOMAS VAN AMBURG,

KENNETH NELSON, and KABC-TELEVISION

AMERICAN BROADCASTING COMPANIES

(now CAPITAL CITIES/ABC, INC.)

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE CALIFORNIA COURT OF APPEAL

Petitioner Inez C. Boyd respectfully requests that a

writ of certiorari issue to review the final judgment of the

California Court of Appeal, Seeond Appellate District

(“Court of Appeal’), entered in this case on February 10,

1989.

The question presented merits review because this

court has never determined whether, in cases where infer-

mation has been aequired unlawfully by the news media

or by a source, government may ever punish not only the

unlawfut aequisition but the ensuing broadcast or publiea-

tion as well.

In this instant case, respondents, using false informa-

tion, eased a “private” citizen into “publie figure” status,

for the sole purpose of structuring a defense to protect

a a

to

against the showing on the air of illegally obtained medi-

eal records — slander per se.

There was immediate, irreparable damage to the repu-

tation of a seven (7) year AFTERCARE research health

services program, which was forced to close its doors. The

privacy interests of these client medical records were

protected both by Federal Regulations and State of Cali-

fornia Administrative Code.

In the instant ease this Court has an opportunity to

address, directly, the issue of deliberate use of false

information, by news media to knowingly mislead, not

only the courts below but its own television viewing

audience. The question of whether the First Amendment

constitutional rights of a private citizen to freedom of

speech and to due process have been abridged also awaits

a determination from this Court.

This Court has left the term “publie figure” undefined.

The oppertunity exists for this Court-to address the

issue of a clear-cut definition for a “publie figure” as

distinguished from a “private” citizen, and the use by a

Number One Nielsen rated television station — whoily

ewned by a national broadeaster, Capital Cities/ABC,

INC. — of false information to deliberately mislead the

courts below, resulting in a violation of its federal man-

date to protect the public interest.

This Court has stated: “...the general proposition

that freedom of expression upon publie questions is se-

eured by the First Amendment has long been settled by

our decisions. The constitutional safeguard we have said,

‘was fashioned to assure unfettered interchange of ideas

for the bringing about of political and social changes

desired by the people.’ Roth v. United States, 354 U.S.

476, 484. There are also statements of this Court: “... to

the effect that the Constitution does not protect libelous

publications.”’ New York Times Co. v. Sullivan, 376 U.S. at

268, 269. The issue is joined.

OPINIONS BELOW

The entire Opinion of the Court of Appeal is reprinted

in App. A., at la-l4da. The May 3, 1989 order of the

Supreme Court of California denying petitioner's Petition

For Review is unreported and is reprinted in App. B, at

lb. The May 24, 1989 judgment of the Court of Appeal,

known as a Remittitur is unreported and is reprinted in

App. C, at le.

JURISDICTION

This case presents a substantial federal question not

answered by this Court regarding the formulation of a

clear definition of a “public figure” — as yet undefined —

in order to protect the rights of a private citizen to

recover damages for a ruined reputation, without proving

actual malice. In this instant ease, California was one of

three states that continued to blur the lines of demarea-

tion between “private” citizen and “publie figure’. And,

even though the State Supreme Court of California struck

down the California Civil Code Section 47(3) finding “

ne support in the language or history of section 47(3) for

the broad publie interest privilege claimed by defend-

ants... ’*, making it easier for private citizens to sue,

‘Konigsbe rg v. State Bar of California, 366 U.S. 36. 49. and n. 10;

Times Film Corp. v. City of Chicago, 365 U.S. 43. 48: Roth r. United

States, 354 U.S. 476, 486-487; Beauharnais v. Illinois, 343 U.S. 250.

266; Pennekamp v. Florida, 328 U.S. 331, 348-349; Chaplinsky v. New

Hampshire, 315 U.S. £58, 872: Near pv. Minnesota, 283 U.S. 697. 715

“Shirley v. Brown, State Supreme Court of California, Opinion

before (April 27, 1989) the date of the State Supreme

Court filing of Petitioner’s denial (May 3, 1989) of a

hearing on the Petition For Review, Petitioner was af-

forded no relief from the Opinion.

In addition, two fundamental issues are raised:

— one, concerning open access for minority citizens to

the California system of justice, due process, and

— two, — freedom of speech, econeerning denial of mi-

nority rights to publish results compiled through initiat-

ing treating practices of a new health discipline,”

AFTERCARE, TRACKED AT THE TREATMENT PRO-

GRAM LEVEL BY THOSE BEING TREATED; Appellant

searches for an answer to the question:

Whether having been denied these constitutional rights

by a Trustee/Broadeaster’s violation of its public trust,

the deprivation gives rise to an action for damages?

The use of the vast powers of a Federal Trus-

tee/Licensee Broadcaster, in this manner, appears to

make this a ease of first impression — constitutionally

guaranteed freedoms, to one party, used by that party, to

deny those same basie freedoms to another.

This Court has jurisdiction to review the decision of the

Court of Appeal under 28 U.S.C. seetion 1257(a). The

decision of the Court of Appeal is final for the purposes of

Section 1257(a) because it finally deeides tiat plaintiff JS

a “publie figure’, actually, a “limited purpose public

‘C.T. 80 Lists possible publications for Director Single State

Agency. Exhibit — Letter from B’ai B’rita, Anti-Defamation League

makes offer to read results of unique, one-of-a-kind drug abuse

treatment program on AFTERCARE, in progress, for publication,

shortly before ABC/KABC-TV Broadcast announcement closed the

program.

figure” by use of false information, distorted and slanted

by nature of its selection from the petitioner’s private life

to support respondents’ claim of a public life. It appears

that this decision is not subject to further review in the

state courts, and failure to resolve promptly the federal

questions presented here will prolong the uncertainty

eaused by the Court of Appeal’s decision, thus, seriously

eroding the rights of private citizens to due process.

CONSTITUTIONAL PROVISIONS INVOLVED

The First Amendment to tke Constitution provides

that:

Congress shall make no law respecting an establish-

ment 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 assem-

ble, and to petition the Government for a redress of

grievances.

STATEMENT OF THE CASE

Petitioner, Inez C. Boyd, (““Boyd’’) is a teacher and a

sociologist. This educational training and experience in

community organization — bringing people together to

work to resolve chronic social ills, where they live — was

being utilized as a health professional, in Los Angeles,

while living in Whittier, California, (a thirty mile com-

mute), engaged in a seven (7) year health discipline

research project, in July, 1982, when Boyd received a

friendly eall from a reporter Angela Black (‘‘Black’’)

from KABC- TV/ABC, INC., requesting an appointment

to discuss the program. Both agreed to meet at 1:00 p.m.

on July 22, 1982. The research was designed to add the

final component to a successful experiment in democracy.

Los Angeles County was tightly organized and anyone

who received public funds belonged to several organiza-

tions. See CHART App. D.

Boyd was a teacher at Whittier college. She was hired

to work at Kedren Community Mental Health Center,

under the direction of Honorable Judge Alban I. Niles, a

sitting judge in Los Angeles County now, but President

and legal counsel to Kedren when Appellant came to that

community. Boyd was hired by Honorable Judge Niles to

assist him in adding the two components to Community

Mental Health Centers Corporate Owners required by

law:

1. Education and Consultation — Boyd’s duties were

to educate the public about Kedren’s services, to consult

with schools and other health professionals and to attend

professional meetings in the community and around the

state.

2. A Drug Abuse Component — the Southeast Coalli-

tion, a professional organization, see App. G voted to set-

up an Aftereare program at Kedren, P.T.P. as its first

priority. The program was administered by Honorable

Judge Niles. Boyd worked for him. He was her boss.

Boyd did not, therefore, found P.T.P. to deal with drug

abuse as Respondents say. The statement is false. App. E.

Boyd did not “found” I-TAC to deal with drug abuse as

Respondents say. The statement is false. 600 church

members created I-TAC for their own personal reasons.

That is the reference for the “I” in -The American Citizen

strictly personal and private. Nothing is more private in

America than ene’s religion and I-TAC was created in

Whittier, California with the input of all religious faiths.

The agenda is C.T. 233-224 and the word “Drugs” does

not appear. Appellant submits declarations from the Hon-

————————————————————

orable Judge Alban I. Niles App. E. and Attorney Errol

Gordon given on the subject that Inez C. Boyd worked for

Kedren when P.T.P. was voted into existence by the

Southeast Regional Coalition. There was no controversy

as all programs in the region cooperated by sending

recovering addicts to P.T.P.

However, on July 21, 1982, one day earlier than the

agreed upon appointment date to meet with Boyd, the

director, P.T.P., the ABC reporter Black, from Number

One Nielsen rated KABC-TV burst into P.T.P., unan-

noun¢ed in a surprise “raid’’, entered the client medical

files and began roiling these on the air. The director was

not in the administrative offices, so no one gave Black

permission to enter. Black did not have a warrant signed

by a public official as required by the constitutional

regulations of search and seizure, Amendment IV, the

California Civil Code, section 47 (4) and the Federal

Regulations for Client Confidentiality. C.T. 8.

Respondents have submitted only one piece of evidence

to the courts — a two minute, five second ABC “DUB”

tape made in Hollywood, on September 29, 1987.

A declaration of Roger Bell, an eleven year veteran

employee C.T. 186-7, swore to a one hour tape preserva-

tion system at KABC-TV/ABC. The pre-trial court was

later informed that no such system existed, giving rise to

the possibility of perjured testimony.

The BELL declaration clearly and convincingly proves

how much the tape presented to the courts was edited:

— Fifty-seven (57) minutes and Fifty-five (55) seconds

... CUT-Edited OUT. The “DUB” ABC Tape is dated

September 29, 1987, exactly five (5) years after Appellant

requested the tape. It was submitted to the courts, minus

the opening and closing remarks of the anchorperson and

is only two (2) minutes and five (5) seconds in length, a

minute portion of the ONE HOUR TAPE, a permanent

preservation of all ABC neweasts, described by Bell as

only being available to KABC-TV staff on an “as needed”

basis.

Two of the most important mood setting pieces for the

viewing publie:

— anticipation for the viewing public of the upeoming

segment while the commercial playing

— lingering atmosphere for the viewing public, after The

Broadcast

the opening and closing remarks of the anchorperson

were simply deleted by ABC from the tape (2:05 seconds)

presented to the courts as a true and correct copy of a one

hour preservation tape. An even more serious matter has

arisen in the loss of the anchorman’s portion of the one

hour tape. The sworn declaration of insider Bell, who

describes the failsafe system of tape preservation at ABC

appears at C.T. 186-7. Two attorneys contradicted Bell in

their testimony in court. In effect the court was told that

Bell had not accurately described the situation at ABC.

The public is left wondering whether any tapes are kept at

all as Bell states. (See O’Connor and Teele testimony. )

The Court: What about the whole program? Don’t

you tape the whole program?

Mr. O’Connor: No, your honor. The tapes are not

preserved in that manner.

The Court: You should have put them together

then. This is very poor — doesn’t help. your situation

any to hold back something that could give some

comfort to her. I mean this is a suggestion.

9

Ms. Teele: Unfortunately, your honor, they don’t

even preserve the anchorperson’s portion of the tape,

so that has been lost.

The Court: Well, is this the very first item on that

tape?

Mr. O’Connor: Your honor, this is the tape that was

presented to the court as it was maintained.

The Court: Why don’t you — you should get the

rest of it.

As stated in the ease of Brown & Williamson Tobacco

Corp. v. Walter Jacobson and CBS, Inc., Nos. 86-2474 and

86-2475, this Court’s decisicn on destruction of vital

evidence in this instant case, the destruction of evidence

is not protected by the broad interest privilege claimed by

Capital Cities/ABC, Ine.

Respondents claim to have made contact, by telephone,

with two power brokers, one, Sarah J. (‘‘Sallie’’) Davis,

director State Department of Alcohol and Drug Pro-

grams, ADP, who spoke of “concerns” with the financial

“management of P.T.P (I-THE AMERICAN CITIZEN,

INC., I-TAC) but failed to provide corroborating evidence

such as affidavits or declarations from the recipients. The

courts were provided only the word of Black who had

violated the constitutional regulations of search and

seizure to secure the information shown on the Broadeast.

Appellant aocuments the existence in Los Angeles

County of a “cozy” quid pro quo relationship between

those entrusted with the protection of the public interest

and the power-brokers.’ News leaks, instead of investiga-

t : -~

Publie Document — Sacramento Bee, November — , 1987. How the

press blew Iranamok ¢ Coziness with sources. Some journalists were

coopted by the very people who were doing the dirty work. ... * Time

i0

tions by news media would explain the total arrogance of

KABC/ABC, Ine.”

The legislature and the governor of the state had

handled the exact problem Black solved by saying she

called a local power broker and was directed to the state

to an appointee of the governor. Effective January 1, 1981

a bill had been signed into law, Senate Bill 19417, which

prevented Sallie from taking calls from reporters seeking

information on drug programs and which Sallie was

mandated by the governor to implement. The senate bill

established a single drug abuse administrator in each one

of the 58 state counties and all questions were to be

directed to them. For Sallie to have accepted Black’s call

would have meant open defiance of a mandate from the

pressure. Journalists were busy, and their editors were impatient.

The media has a short attention span... ‘A reporter ought to da more

than wait for an official arm of government to investigate or for

somebody else to leak a story, although too many editors feel safer

when stories come this way.’ ”

° Public Document Minutes, LOS ANGELES COUNTY NARCOT-

ICS AND DANGEROUS DRUGS COMMISSION MINUTES, date

August 5, 1981 Page 4. Message: Commissioner Beckler said he has

participated as a member of various alcohol and drug program groups

and knows it is almost impossible for any bureaucracy not to some-

times be insensitive to the needs ef the community; this is inevitable

but forgivable. He didn’t think the letter from the providers was

helpful — it took him several readings just to figure out what it was

talking about. However, he felt it was simply a symptom of the

community's fear. He felt sometimes the Commission was possibly

not only supportive, but “cozy” with the DAPO; it should use care not

to be just supportive, but should also be a watchdog. We must

constantly strive to keep open lines of communication between prov-

iders and the DAPO, he said.

11

governor as well as violation of the California Administra-

tive Code protecting service provider privacy rights.”

These statements from respondents are false.

Boyd provided documentation by the government audi-

tor of I-TAC, in a signed and witnessed affidavit that the

“eoncerns” of Sallie upon which respondents base their

case are little more than fiction. Sallie’s “concerns” were

written in two letters to I-TAC dated May 6 and May 12,

1982. They “concerned” the corporate status of I-TAC and

were not involved with the financial management of the

corporation. The “concerns” of Sallie were disposed of as

being totally without substance. See App. H.

Following is a letter from ADP Audit Section request-

ing a time to audit the financial management of I-TAC

during the time of the Broadcast. The letter is dated July

22, 1982." Boyd has provided documented proof that there

* Public Document — Senate bill No. 1841 Introduced by Senators

Green and Watson on March 6, 1980, An act to amend Sections

11754, 11961, 11962, 11963, 11981... of the Welfare and Institutions

Code, relating to drug abuse...

“SEC. 5. Section 11962 of the Health and Safety Code is

amended to read:

11962. The board of supervisors shall designate a drug program

adminstrator and shall determine the administrative level, responsi-

bility, and authority of such a position ... He or she shall administer

all drug programs funds allocated to the county under this chapter. All

drug program funds allocated by the department to programs or

projects within the county shall be expended only with the prior

certification by the drug program administrator, the county advisory

board on drug programs, and notification to the board of supervisors

that the program allocation is consistent with the priorities in the

approved county Short-Doyle drug program plan.”

‘Public Document, Letter, Department of Alcohol and Drug Pro-

grams, July 22, 1982, CERTIFIED MAIL: P06 7461325 to Ms. Inez

12

was no “month-long” audit of the 1982 ADP contract at

the time of the Broadcast to validate an ABC “Investiga-

tive Report” as respondents claim. ADP never audited I-

TAC’s 1982 contract, the contract is still open and due

and payable, validated by a Sacramento Court order.

There was no special-interest privilege for Capital Cit-

ies/ ABC, Ine., no need for the public to know. The audits

were of old contracts. ABC was aware that the viewers

were being misled. Appellant documents with a dated “9-

3-87” defendants’, APP E.

It was a matter of public record that the “Coalition” in

Southeast which appellant coordinated seven years ear-

lier in 1973-74 had been replaced by the group below:

Sallie was a member and knew Boyd was not, at the time

of Broadcast.

A pvublie document letter — See App F. SOUTHERN

CALIFORNIA ASSOCIATION OF PROGRAM DIREC-

TORS, 15519 CRENSHAW BOULEVARD, GARDENA,

CALIFORNIA 90249, (213) 679-9126, July 11, 1981, Ms.

Sally Davis, MSW, Director, ADP “.... The Southern

California Association of Program Directors wishes to

formally state its opposition to subvention of Federal

block grant dollars to the counties for the following

reasons:..../s/ Chairperson.”

See App. F copy of a November 20, 1973 sign-in sheet

indieating that everyone in attendance represented a

C. Boyd, Direetor I-TAC, Ine. RE: AUDIT OF CONTRACT NUM-

BER D-0167-80, A-1. We have recently completed the audit of

Contract Number D-0167-80, A-1 for the period January 1, 1981 to

December 31, 1981. At the present time the Department plans to audit

the remainder six months of the contract, January 1, 1982 through June

30, 1982. /s/_ Pilar Troy

Assistant Manager

Audit Seetion

13

professional group. These documents were supplied to

respondents and the courts.

The entire basis of respondents’ case is false.

This case concerns a morally flexible state agency

director, who, at all times had both a federal mandate and

a state mandate under the state FORMULA INDEX OF

NEED, Senate Bill 714, of federally required matching

funds, to provide public funding for Project Total Push:

AFTERCARE, parent company — I-THE AMERICAN

CITIZEN, INC., (I- TAC) — as P.T.P. was prioritized

Number One, by the community planners for such funding

during the entire seven years of its existence, 1975 to

1982.

REASONS FOR GRANTING CERTIORARI

I

CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE THE CONFLICT BETWEEN THE DECI-

SIONS BELCW AND THE DECISIONS OF THIS

COURT.

This Court has stated in Roth v. United States, 354 U.S.

476, 484, “The general proposition of expression upon

publie questions is secured by the First Amendment has

long been settled by our decisions. The constitutional

safeguard, we have said, ‘was fashioned to assure unfet-

tered interchange of ideas for the bringing about of

political and social changes desired by the people’.”

The matter of how the states have implemented these

constitutional mandates is the matter at issue in this

instant ease.

The Court of Appeal, Opinion App. A, decided this

instant case on the basis of respondents request for

14

Summary Judgment “...is appropriate because the

Broadeast statements are privileged under Section 47(3)

of the California Civil Code.”

Agreeing with respondents, above, the Court of Appeal

opined “..... Finally, it appears that the statements

broadeast by Black were privileged under subdivision 3 of

section 47 of the Civil Code....” The Court of Appeal

defined malice as “...that state of mind arising from

hatred or ill will...”

However, the Supreme Court of the State of California

disagreed with both the pre-trial court and the Court of

Appeal, addressing the issue in the not yet reported

Brown v. Kelly Broadcasting Co. 8005126, Gpinion

‘*’,. The soie issue in this ease is whether Civil Code

section 47, subdivision 3, affords a broad privilege, some-

times referred to as a “public-interest privilege” to the

news communications industry (news media) to make

false statements regarding a private individual.”...... as

we will explain, there is no such privilege for the news

media under section 47(3). We hold that a publication or”

broadeast by a member of the news media to the general

publie regarding a private person is not privileged under

section 47(3) regardless of whether the communication

pertains to a matter of public interest. Thus, a private-

person plaintiff is not required by section 47(3) to prove

malice to recover compensatory damages.”

Until this Supreme Court Opinion, California was one

of only three states to still hold such a privilege over

private citizens. There was no trial of this case on its

merits and therefore, appellant did not benefit from this

decision. The earelessness with which KABC-TV/ABC,

Ine. prepared the Broadeast gives a clue as to exactly how

heavily the news media in California depended on the

15

state statute to bail them out of libel suits — and how

well the technique worked. The constitutional rights of

citizens, in the meantime, were being trampled.

The Opinion of the court of last resort on this matter is

quite lengthy. The pertinent parts of the decision are

reproduced for the Court, herein; at pp 4.

DISCUSSION

The broad public-interest privilege claimed under section

47(3) is not constitutionally mandated or appropriate.

In recent years, the common and statutory law of

defamation has been supplanted in many respects by

decisions of the United States Supreme Court construing

the federal Constitution. Thus, although the question

before us can be answered by statutory construction, it is

best understood in light of the high court’s decisions.

Defendants do not contend those decisions mandate a

privilege under section 47(3) but argue that they provide

policy support for a statutory public-interest privilege for

the news media under section 47(3). We disagree. The

United States Supreme Court has construed the federal

Constitution as imposing certain-limitations on plaintiffs

seeking to recover for defamation. The high court, how-

ever, has expressly rejected, the privilege sought by de-

fendants in this case.

As recently as 1957. the court reiterated that, “{T]he

unconditional phrasing of the First Amendment was not

intended to protect every utterance. This phrasing did not

prevent this Court from concluding that libelous utterances

are not within the area of constitutionally protected

speech,” (Roth v. United States (1957) 354 U.S. 476, 483,

citing Beauharnais v. Illinois (1952) 343 U.S. 250, 266.)

16

Only seven years later, however, the court found for the

first time that libel is pretected by the federal Constitu-

tion under certain circumstances....418 U.S. Gertz v.

Robert Welch, Inc.

Thus, Gertz holds that the public-interest privilege

advocated by defendants under section 47(3) is not re-

quired by the federal Constitution. Moreover, Gertz re-

futes defendants’ policy argument that _ federal

constitutional protections fur freedom of the press weigh

in favor of creating a public-interest privilege in defama-

tion actions by private-figure plaintiffs. The Gertz court

earefully balanced the competing values of society's inter-

est in a free press and society's need to prevent and

redress attacks on reputation and found that a public-

interest privilege is not constitutionally required.

Appellant in the Petition For Review to the court of

last resort approached the issue of privilege for respon-

dents from the same direction as that court's decision,

making it the sole issue of the petition:

A. Basis of Petition

This petition for a review centers around one, single,

key area:

The principles, well settled in law that identify com-

munications of a broadeaster, protected by

PRIVILEGE

Appellate submits that the privilege of the First

Amendment of the United States Constitution was

extended to the two minutes, five second, ABC Ine.,

Eye Witness News “DUB” tape, in error, and accord-

ing to the principles, well-settled, in law, that pro-

17

tect boradcasters’ communications, the granting of

summary judgment to that tape should be reversed.

California Supreme Court Opinion Continue

Shortly after New York Times, supra, 376 U.S. 254, the

court further restricted the common law of defamation by

holding that “publie figures’ — like public officials —

must also prove malice under the New York Times stand-

ard to recover for defamatory criticism. (Curtis Publish-

ing Co. v. Butts (1967) 388 U.S. 130, 162-165 (cone. opn.

of Warren, C.J.). Because plaintiff in the present ease is

not alleged to be a “public figure,” we need not discuss

the court’s explanations of that term in Curtis and subse-

quent cases. /t is sufficient to note that, “...a court must

focus on the nature and extent of an individual’s participa-

tion in the particular controversy giving rise to the defama-

tion.’...A private individual is not automatically

transformed into a pudlic figure just by becoming involved

in or associaied with a matter that attracts public atten-

tion.”’ (Wolston v. Reader’s Digest Assn., Ine. (1979) 443

U.S. 157, 167; Reader’s Digest Assn. v. Superior Court

(1984) 37 Cal.3d 244, 254, fn. 6.)

The State Supreme Court of California coneludes its

historie opinion removing the privilege for the news com-

munications industry to print public-interest, false news

about private citizens providing, at pp 50-55, the means

already at hand to prevent long, costly law suits for the

press and the news media:

18

CONCLUSION

We find no support in the language or history of section

47(3) for the broad public-:nterest privilege claimed by

defendants. Sound public policy reasons also weigh heavily

against such a privilege.

Because we find there is no such privilege in this ease,

we agree with the Court of Appeal that summary judg-

ment was improper. The judgment of the Court of Appeal

is affirmed with directions to remand this action to the

trial court for further proceedings in accordance with the

views set forth in this opinion.

DATED: August 1, 1989

Respectfully submitted,

INEZ C. BOYD

For Petitioner In Propria Persona

il.

CERTIORARI SHOULD BE GRANTED TO RE-

SOLVE AN IMPORTANT AND RECURRING CON-

STITUTIONAL QUESTION LEFT OPEN BY THIS

COURT'S DECISIONS

This Court has decided “...debate on publie issues

should be uninhibited... robust....°’ New York Times Co.

v, Sullivan, 376 U.S. at 270

‘“... the use of ealeulated falsehood, however, would

put a different cast cn the constitutional question.

Although honest utterance, even if inaccurate may

further the fruitful exercise of the right of free

speech, it does not follcw that the he, knowingly and

deliberately published...should enjoy a_ like

community.”

19

Garrison v. Louisiana, 379 U.S. 64, 72

Appellant respectfully requests a focus from this Court

on the issue that the information for the Broadcast was

secured illegally, that the information passed to the view-

ing publie was false, that no ABC “Investigative Report”’

was ever submitted in evidence to the courts below and

that the tape (2:05) was a “DUB”, made at a Hollywood

address — a fraud, a hoax, after an eleven year ABC

veteran swore that there were ONE HOUR TAPES of

every news broadeast stored, only given out on an “as

needed” basis. The 8 million viewing audience is left to

wonder whether there are any records kept at Capital

Cities/ABC, INC., at all. The remarks of the anchorper-

son on the Broadeast, July 21, 1982 were destroyed at

KABC-TV.

This Court has stated, THE FLORIDA STAR v.

B.J.F. No. 87-329 Opinion:

“The tension between the right which the First

Amendment accords a free press, on the one hand

and the protections which various statutes and com-

mon-law doctrines accord to personal privacy against

the publication of truthful information, on the other,

is a subjeet we have addressed several times in

recent years. Our decisions in cases involving govern-

ment uttempts to sanction the accurate dissemination of

information as invasive of privacy, have not, however,

exhaustively considered this conflict. On the contrary,

although our decisions have without exception upheld

the press’ right to publish, we have emphasized each

time that we were resolving this conflict only as it

20

arose in a discrete factual context.” (Emphasis

added)

Chaplinsky v. New Hampshire, “Caleulated falsehood

falls into that class of utterances which “... are no essen-

tial part of any exposition of ideas, and are of such slight

social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social

interest in order and morality.” 315 U.S. 568, 572

This Court is respectfully requested to note that be-

cause respondents submitted only one single piece of

evidence to the courts below and failed to address the two

essential elements of proof of a plaintiff's classification as

a ‘“‘publie figure”’:

1— identification of a specific public controversy

ee

2— voluntariness...‘‘thrust’” oneself ‘“...into the

’9

VORUE... s

at the time of the Broadcast, the program constituted a

personal attack upon the plaintiff.

Boyd was not proven to be a “public figure” by factual

evidence but was simply stated to be one and by repeti-

tion of this statement became one for all purposes, when,

as a point of fact the statement was easily proven false by

evidence submitted for the record by Boyd. App. E,

Declaration of a sitting judge in L.A. County, who docu-

“The somewhat uncharted state of the law in this area thus

contrasts markedly with the well-mapped area of defamatory false-

hoods, where a long line of decisions has produced relatively detailed

legal standards governing the multifarious situations in which indi-

viduals aggrieved by the dissemination of damaging untruths seek

redress. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254

(1964); Garrison v. Louisiana, 379 U.S. 64 (1964); Henry v. Collins,

380 U.S. 356 (1965); Rosenblatt v. Baer, 383 U.S. 75 (1966): Time, Ince.

v. Hill, 385 U.S. 374 (1967).

21

ments that Boyd did not “found” PTP, Kedren did —

Cirea 1975.

388 U.S. 161

The Court has stated: Curtis Publishing Co. v. Butts, “It

should also be noted that prior to publication the Satur-

day Evening Post had been notified both by Butts and his

daughter that the material about to be printed was false.

Despite these warnings, and the fact that no member of

the staff had ever seen Burnett’s crucial notes, no further

efforts at investigation were undertaken prior to publica-

tion. It might indeed be argued that this conduct would

have sufficed, under proper instructions, to satisfy even

the actual malice standard of New York Times, the notice

to the Saturday Evening Post being considered as fur-

nishing the neeessary mental element.” New York Times,

supra, 376 US at 287, 11 L ed 2d at 710, 95 ALR2d 1412.

The false statements from respondents inelude denying

information sworn to in declarations and not being

checked by the courts below. Plaintiff's attorney, in 1982,

(he was compromised by respondents) ealled ABC and

told KABC-TV of a possible error. Plaintiff called and

talked with the Assistant News Director — these were all

simply denied. Without a trial there was no recourse for

plaintiff. C.T. 307-8.

443 U.S. 103

This Court has stated, Smith v. Daily Mail Publishing

Co., “...The ‘Daily Mail’ principle does not settle the

issue of whether, in cases where information has been

acquired unlawfully by a news paper or by a source,

government may ever punish not only the unlawful acqui-

sition but the ensuing publication as well.”

22

Respondents reported the wrong dates for the national

BLOCK GRANTS, placing them in the 1970’s when these

were a part of the new administration, July 21, 1982

“|. From the community-based/grass roots funding

in the late 1960’s, to the federal block grants of the

1970’s, TO THE LAISSEZ FAIRE approach of the

present administration...” CT 154°

Respondents from ABC/KABC-TV, the #1 television

news station in Southern California, by their own sworn

declarations turn the key that upsets and unravels their

own intellectually dishonest theorizing on a limited pur-

pose public figure as the term is manipulated to fit

appellant:

‘« I have never met Boyd and I had never communi-

eated with, or even heard of her, before the date of the

disputed broadeast ...”’ Thomas Van Amburg, President

and General Manager of KABC-TV. C.T. 173

‘* [have never met Inez C. Boyd and I never commu-

nicated with or even heard of her before receiving the July

14, 1987 (1982: telephone eall from Evans.” Angela

Black, alleged “investigative” reporter at KABC-TV. C.T.

171

‘I have never met Inez C. Boyd and I had never

communicated with, or even heard of her before KABC-

TV began its investigation into allegations that had been

*Appellant asserts that the present administration is the Block

Grant Law. The Block Grant Law belongs to the ‘80's — July 1, 1982.

Public Document — a letter from the State Department of Health, to

drug programs, dated June 1, 1982, SUBJECT: BLOCK

GRANTS — explains the STATE’S ROLE IN RESOLVING COUNTY

PROVIDER ISSUES thus, refuting respondent's claim that the Block

Grants were a product of the Cirea 1970's and 1982 was Laissez-faire

time.

23

made against her by her ex-employee, Ronald Evans

(“Evans”) Kenneth Nelson, News Director, KABC-TV

C.T. 178

Respondents cannot have it both ways. Either appellant

is a widely known publie figure who “thrust herself into

the vortex of a public controversy,” or appellant is an out-

of-publie-view and private person, who is unseen, un-

heard-of and unknown, by Southern California’s NUM-

BER ONE Nielsen rated ABC, INC./KABC-TV news

station’s top brass, with an eight (8) million person

potential viewing audience.

The most damaging claim made by respondents is that

appellant has aecess to the news media to refute and

discuss the false statements in the Broadcast. A more

accurate statement about appellant and the press is that

any “news” about appellant that reaches the reading or

viewing public is strictly accidental and if caught in time

will never leave the editorial room.

KABC-TV/ABC was on a mission. They believed the

news leak was “hot”. No investigative report ever sur-

faced with corroborated facts, only rumor and gossip. See

Opinion, pp. 5, 6.

Appellant was familiar with efforts to prevent minori-

ties from taking eredit for their own creative writings.

Such writings might be passed along to a friend of those

who read for publication. See letter, App. G documenting

this theory. The letter is self-explanatory. Had appellant

been a public figure wiio had access to the news media she

would have, before March 11, 1980, and the reluctant offer

made by B'nai B’rith Anti-Defamation to read her next

research for “possible publication”, this matter would

long ago have been settled. A legal agreement had been

reached between two attorneys. The legal agreement was

a a

24

never honored. Appellant was on the verge of publishing

PTP’s AFTERCARE research when the break-in by

Black oceurred at the program.

Appellant, on July 21, 1982 was « »rivate citizen. The

right to publish — the freedom to do research — is con-

stitutionally guaranteed to every American. It is this

aspect of this instant case upon which appellant respect-

fully seeks a focus from this Court.”

Ill.

CERTIORARI SHOULD BE GRANTED FOR MORE

INPUT FROM THIS COURT ON THE STATUS OF

THE BASIC CONSTITUTIONAL RIGHTS OF PRI-

VATE CITIZENS — FREEDOM OF SPEECH, DUE

PROCESS —IN THE ON-GOING CLASH BE-

TWEEN PRIVACY AND FREE EXPRESSION FOR

THE PRESS

420 U.S. 491

Cox Broadcasting Corp. v. Cohn, this Court has stated,

‘* |. Indeed, in Cox Broadeasting we pointedly refused to

answer even the less sweeping question ‘whether truthful

publications may ever be subjected to civil or eriminal

liability’ for invading ‘an area of privacy’ defined by the

state. Respecting the fact that press freedom and privacy

rights are both ‘plainly rooted in the tradtions and signifi-

‘Appellant had written her masters thesis on St. Louis school

desegregation. Every national magazine wanted to publish. Because

of Appellant’s trust and faith in B’nai B'rith she gave the thesis to

that organization. The trust was betrayed. Any chance that appellant

might have become a public figure disappeared with this one aet. So

did any “‘aecess to the press’’ — Cirea 1960. To cover for this lapse in

morals and ethies, the victim has had to pay with enforeed anonymity

and has become a very private citizen.

25

cant concerns of our society, we, instead focused on the

less sweeping issue...”

(emphasis added)

Plaintiff is not a limited purpose “public figure’ as

claimed by respondents.

The Court of Appeal stated, at pp 10: ““Moreover, Boyd

is a ‘limited purpose public figure’. No reference was

made to the two essential elements, of a public contro-

versy and voluntariness, at the time of the Broadcast.

The Court of Appeal further states at p 11: “On the

topic of drug pregrams and funding,” Boyd states that

there “were 600 people who attended 11 weeks of seminars,

just to ‘hear’ her ‘expound’ about her ideas on drug pro-

grams and funding’.” This statement is completely false.

Whether it should determine Plaintiff's future is a ques-

tion this Court is respectfully requested to consider.

Capital Cities/ABC, INC. had become a rumor mill. As

the false information passed through the lower courts,

having no basis in fact, the players changed. As the

newspaper article, herein, clearly points out, the 600

people, of all religious faiths, had gathered in Whittier, as

a Study Group to discuss prejudice as reported in the

Kerner Report: CIRCA JUNE 1, 1968 — fourteen (14)

years before the Broadeast. Appellant did not “found”

P.T.P. The Southeast Coalition did, as a cooperative

gesture — all programs referred their clients to P.T.P.

for Aftercare services. There was no controversy about

the need for aftercare, at the time of the Broadeast.'’

"'Publie Document: Newspaper Article, June 1, 1968 Whittier

Study Group Seeking Social Reality — Physician’s Wife Spurs Ef-

fort to Learn How to Resoive Probiems Scientifically — Society has

grown up pretty much by the law of the jungle and it is time today to

26

There is a clash between the freedom of speech protec-

tion for the news media and the privacy rights of the

eitizen. In this instant case the clash is with appellant’s

duties as a provider of health services to the state from a

private corporation employee, for twelve (12) years. The

public record at the state agency, ADP, the state tax

office, the Internal Revenue Services will all show that

these services were not volunteered. Without this essen-

tial element being proven by respondents appellant is not

a limited purpose public figure.

The Opinion, App. A, 9A, states: “....she (appellant)

cannot truly identify any false statement of fact made

during the Broadeast....’’ Appellant identifies several

such statements — false — made during the Broadcast:

First, Opinion 6a, App. A.

Angela Black: “....I-TAC lost its state funds on June

30th... .”

This statement is false.

ereate a scientific society, according to the wife of a Whittier

physician who also happens to be a trained sociologist.

Mrs. Joseph F. Boyd Jr. is the guiding spirit behind an intriguing

study course on “Riots, Revolution, Revolt and Me,” being given

Mondays at 7:30 p.m. in Whittier First Methodist Church, Bailey St.

at Friends Ave.

She eails it the “3 R’s” study course.

“The real purpose is self-examination,” said Mrs. Boyd.

Well, many ask, am I a racist, or am I not? What is a racist?

_... The courts have also, especially in libel cases, investigated the

plaintiff's position to determine whether he has a legitimate call upon

the court for protection in light of his prior activities and means of

self-defense. See Brewer v. Hearst Publishing Co., 185 F.2d 846;

Flanagan v. Nicholson Publishing Co., 137 La 588, 68 So 964....

27

Correction: I-TAC holds a valid, written contract with

the State Department of Aleohol and Drug Programs,

Sallie, director, Cirea, September 30, 1982. The contract

was never closed out by Sallie.

Second, Opinion 6a App A.

Angela Black: “.... Employees are working under con-

tract without pay pending court hearings...”

This statement is false.

Correction: Appellant managed five contracts, from the

same funding source, renewable annually, on the basis of

good to excellent audits whose record is in a permanent

public file (410) at the state. No employee of I-TAC ever

missed a pay period. There was no court hearing pending,

July 21, 1982. There was no ABC investigative report

which provided evidence other than that publie record.

Third

Angela Black: “The aleohol and Drug Programs has

asked the Attorney General’s Office to investigage a

possible misuse of funds. This statement is false. ABC

did not report the results of such a request nor did ABC

show responsibility and retract the statement on the air.

There was no audit of the I-TAC contract for the current

year on July 21, 1982, in progress. No matter of public

interest and. therefore, no reason for the Broadeast.

The California Supreme Court in comparing the protee-

tion for the private citizen at the state level with that

enjoyed at the federal level continues in its Opinion:

“Article I, section 2, subdivision (a) of the Califor-

nia Constitution states, “Every person may freely

speak, write and publish his or her sentiments on all

subjects, being responsible for the abuse of this right.

ES

28

A law may not restrain or abridge liberty of speech or

press.

403 U.S. at 46-47

... private individual does not have the same degree

of access to the media to rebut defamatory comments

as does the public person and he has not voluntaril)

exposed himself to publie serutiny.

While these arguments are forcefully and elo-

quently presented, I cannot accept them, tor the

reasons I stated in Rosenbloom:

“The New York Times standard was applied to

libel of a publie official or publie figure to give

effect to the [First] Amendment's function to

encourage ventilation of publie issues, not be-

eause the public official has any less interest in

protecting his reputation than an individual in

private life. While the argument that public

figures need less protection because they can

command media attention to counter eriticism

may be true for some very prominent people,

even then it is the rare case where the denial

overtakes the original charge. Denials, retrac-

tions, and corrections are not ‘hot’ news, and

rarely receive the prominence of the original

story. When the publie official or public figure is

a minor functionary, or has left the position that

put him in the publie eye... , the argument loses

all of its foree. In the vast majority of libeis

involving publie officials or public figures, the

ability to respond through the media will depend

on the same complex factor on which the ability

of a private individual depends: the unpredict-

able event of the media’s continuing interest in

29

the story. Thus the unproved, and highly improb-

able, generalization that an as yet [not fully

defined] class of ‘publie figures’ involved in

matters of public concern will be better able to

respond through the media than private individ-

uals also involved in such matters seems too

insubstantial a reed on which to rest a constitu-

tional distinction.” 403 U.S. at 46-47.

The court of last resort continued its discussion of the

parameters of the limited purpose public figure which

were ignored in this instant case, Shirley Brown v. Kelly

Broadcasting Co. S 005126 at 50."

Two important officials in California have announced

intentions ‘o uddress the matters involved in this instant

case:

“Although we conclude there is no publie-interest privilege under

section 47(3), we believe it appropriate to note defendants’ conten-

tion that plaintiff's work as a contractor was a matter of public interest

because the work involved public funds, i.e., the money for the work was

lent to the homeowner by a public agency. Even if there were a public-

interest privilege under section 47(3), it would not arise on these facts.

In Hutchinson v. Proxmire (1979) 443 U.S. 111, the court held that

“concern about general public expenditures” is insufficient by itself to

convert a recipient of public funds into o public figure whe mus! show

malice to recover for defamation. (Id., at p. 135.) It would be

inconsistent with the logie of Hutchinson to find that the receipt of

public funds by itself creates a public interest that requires a private

person to prove malice under section 47(3). Moreover, the use of

government funds is pervasive and affects almost everyone, directly

or indirectly, in one way or another. For example, under defendants’

view, a recipient of a Veterans Administration home loan or a bank

customer whose deposits are federally insured might have to prove

malice. A mere connection with public funds is too broad a basis on

which to require a showing of malice.”

30

— Attorney General Van de Kamp, on “CLEAN THE

ETHICS SWAMP” (Sacramento Bee, July 1989)

“The plain truth is that we have allowed government

and polities in California to sink into quicksand... .

Yet we naively expect public officials to crawl

through that swamp ON A DAILY BASIS AND

COME OUT CLEAN AND UNSOILED. ...1 am here

today to tell you that if we want clean government,

it’s time to drain the swamp.”

— Attorney Robert D. Raven, President of the

American Bar Association, ABA, on the lack of

aecess of the poor to the courts: (Sacramento Bee,

January 1989)

“The system is not working. At ieast 80 per cent of

the legal needs of the poor are not being met...

“THE CONSTITUTION IN THE PREAMBLE

SAYS ‘TO ESTABLISH JUSTICE’... IT DOESN'T

SAY ‘TO PURSUE JUSTICE’ OR ‘TO DO THE

BEST YOU CAN,’ ”

Robert D. Raven, President ABA

This Court in granting Certiorari, in this instant case,

has an opportunity to impact, favorably, the sorry status

of national morals and ethics, and the conditions affecting

aecess of the poor to the courts in one of the largest states

in the nation and at the same time invigorate the on-

going efforts of two of its most powerful lawvers.

Dated: August 1, 1989

Respectfully submitted,

INEZ C. Boyp

For Petitioner In Propria Persona

APPENDIX A

NOT TO BE PUBLISHED

2d Civ. No. B033544

IN THE COURT OF APPEAL

OF THE

STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

INEZ C. Boyp,

Plaintiff and Appellant,

V.

ANGELA BLACK, et al.,

Defendants and Respondents.

(Super. Ct. No. SEC 43543)

APPEAL from a judgment of the Superior Court of

Los Angeles County. J. Kimball Walker, Judge. Affirmed.

Inez C. Bowd, in pro. per., for Plaintiff and Appellant.

Christensen, While, Miller, Fink & Jacobs, Michael J.

O’Connor and James E. Curry, for Defendants and

Respondents.

Plaintiff/appellant Inez C. Boyd (‘‘Boyd’’), appeals

from a summary judgment granted in favor of defend-

ants/respondents Angela Black, Thomas Van Amburg,

Kenneth Nelson (hereinafter collectively “respondents ’ )

and Capital Cities/ABC, Ine. (*ABC’).'

l ’ 4 a5 4 s ‘

Capital Cities/ABC., Ine., was erroneously sued as ABC and

KABC Television.

A-2

FACTUAL BACKGROUND

Boyd is the former director of Project Total Push:

Aftercare (“PTP”),” a publicly funded drug and alcohol

aftercare treatment facility located in Los Angeles. In

July 1983 she filed a complaint for damages against

Angela Black (‘Black’), a reporter for KABC-TV,’

Thomas Van Amburg, the former station manager at

KABC-TV, Kenneth Nelson, the former Assistant News

Director at KABC-TV and Capital Cities/ABC, Ine. for

slander arising from a KABC-TV investigative broadeast

on duly 21, 1982, as part of its 5 p.m. “Eyewitness News”

program.

The events leading up to this broadeast inelude the

following: On July 14, 1982, Black receiveu a telephone

eall from a Ronald Evans. Evans told Black that he was a

former employee of PTP and that he believed Boyd was

misusing PTP’s publie funds. He also stated that he had

not been paid for work performed at PTP during January

and February of 1982. Beeause of the publie interest and

econeern over possible misuse of public monies and possi-

ble mismanagement of a publicly-funded drug and alcohol

rehabilitation program, KABC-TV began an investigation

into Evans’ allegations. On July 19, 1987, Black tele-

phoned the Department of Aleohol and Drug Programs

(‘ADP’), which is the state ageney responsible for the

funding, supervising and auditing of PTP, and spoke with

ADP’s Director, Sarah Davis. Davis told Black that ADP

had conducted a month-long audit of PTP in June 1982

“PTP was operated under the auspices of I-TAC (I-T, American

Citizen, Ine.), a nonprofit, community-based corporation that was

founded and directed by Boyd.

3 ‘ , ‘ a

KABC-TV broadeasts over Channel 7 in the greater Los Angeles

area.

A-3

and that the results had caused “some eoncern.” The

auditors had found that PTP was not maintaining proper

accounting systems, and there had been “many unre-

corded cash expenditures” at PTP during the audit pe-

riod. As a result, ADP was going to ask the Attorney

General to investigate a possible misuse of public funds

at PTP.

On July 19, 1987, Black requested a personal interview

and Boyd “tentatively agreed” to meet on July 22nd. On

July 21st, Black visited the PTP offices with a camera

erew. Just prior to the visit, Black interviewed Evans.

Black also interviewed Cecil Miller, a PTP counselor, who

confirmed that a month-long audit had recently been

eonducted at PTP. He also told Black that before the

audit, client records had been missing for more than one

month. Black also spoke to Boyd and asked for an

interview that afternoon. Boyd refused and suggested she

speak with her attorney, Errol Gordon. Later, Boyd was

again offered, through her attorney, an opportunity to

appear on the air and respond to the allegations made

against her. She refused.

On July 21, 1982, the investigative report was aired. In

her complaint for slander, Boyd alleged that Black had

stated, on camera, “the State Department of Alcohol and

Drug Programs would have charges of fraud filed the

next day against the plaintiff citing mismanagement of

publie drug abuse monies at the program and PTP deliv-

ery of poor health eare to the clients.”

Respondents and ABC moved for summary judgment

on the grounds that (1) there is no genuine issue as to

any material fact in the complaint since the alleged

defamatory statements were never made; (2) the contents

of the broadeast are affirmatively protected by the First

Amendment beeause Boyd was and is a “limited purpose

A-4

public figure;’ and (3) the broadeast was privileged

under Civil Code Section 47, subdivision 3.

Attached to the motion for summary was a video tape

4 | :

copy’ of the broadcast and a transcript of the video tape.

* Roger Bell. the Assistant News Director at KABC-TV, in his

declaration, stated that he examined the tape and “to the best of

[his] knowledge,” there was “absolutely no alteration of the tape

and the attached copy “represents a complete and accurate represen-

tation” of the broadeast. He also stated the “standard procedure |

used for preserving the tapes of news stories

Aeceording to the transeript, the following statements were made

during the Broadcast

“ANGELA BLACK: I-TAC is a state-funded drug- rehabilitation

center. One former employee says its director, Inez Boyd, is mishan-

dling the money. The Alcohol and Drug Program in Sacramento

funds I-TAC. This year the budget was almost $58,000. That's

supposed to pay a staff of four and serve forty-five clients. Ron Evans

says he worked for I-TAC from September of 1951 to February of

1982. He says his January paycheck had a stop payment put on It,

and he was never paid for February either; a total loss of about

$1,600. And he says clients are not being served as claimed.

“RON EVANS: And I began to feel that it was just terribly wrong,

that the public was being ripped off, that the people in the area that

could resume, even use the service, were being ripped off also.

“ANGELA BLACK: I went to I-TAC offices to get their side of the

story this afternoon. The director was not in. An employee called her

on a telephone. She said she was not available for an interview today.

One employee would go on camera. He said a month-long audit of I-

TAC was conducted recently, but before that, the records of the

clients had disappeared.

“ANGELA BLACK: How long have the reeords been missing?

“CECIL MILLER: I don't really know. I know that they were gone

when I got there. I’ve been here a little over a month.

“ANGELA BLACK: I-TAC lost its state funds on June 30th.

Employees reportedly are working under contract without pay pend-

A-5

Both exhibits show that contrary to Boyd's allegations,

Black actually stated: “The Aleohol and Drug Program

has asked the Attorney General’s office to investigate a

possible misuse of funds.”

At argument on the motion for summary judgment

Boyd argued that “the triable issue is whether or not

what is on that tape was what was seen and shown on that

day.” Noting that Boyd’s papers “fall so short” since it

was just “a statement of [her] position,” the court

granted the motion for summary judgment.

ISSUES ON APPEAL

Boyd appears in propria persona on appeal. In her

brief, she does not directly challenge the bases upon

which the summary judgment was granted. Instead she

argues: (1) “Attorney(s) with their clients (defendants)

each has an independent duty to refrain from intentional

tortious conduct;” (2) “The conduct of defendant(s) with

their attorneys was sufficiently outrageous to constitute

intentional infliction of emotional distress;” (3) “A judg-

ment obtained by extrinsic fraud must be set aside;” (4)

“Absolute privilege is inapplicable beeause the publica-

tion was not made to achieve the objects of the litigation

and was not made to promote the interests of justice;” (5)

“Trial court erroneously decided the question of whether

the absolute privilege applied as a factual issue;” (6)

“Doctrine of presumed damages.”

ing court hearing. Employees say they really will be sorry to see this

program go, but they say they honestly don't think that it will be

refunded. The Alcohol and Drug Program has asked the Attorney

General’s office to investigate ¢ possible misuse of funds.

“Angela Black, Channel 7 Eyewitness News, South- Central Los

Angeles.”

A-6

DISCUSSION

Much of Boyd’s brief is concerned with the develop-

ment of conspiracy theories that respondents and/or their

attorneys conspired to edit or tamper with the video tape

of the broadeast and to prevent her from obtaining an

attorney to represent her in this action. Although she

maintains that the “Dubbed Tape” covered up the alter-

ing of the original broadeast with defamatory remarks by

Black about Boyd, nothing whatsoever has been

presented to the court that would support this theory.

These theories are not relevant to the bases upon which

summary judgment was granted.

Boyd also discusses intentional infliction of emotional

distress which is not a cause of action in her complaint

and was not discussed in the court below. She also argues

that the judicial privilege of Civil Code seetion 47, subdi-

vision 2, is inapplicable. However subdivision 2 was not

raised by respondents’ answer or relied upon in the

granting of the summary judgment.

Clearly, from the record before us, the statements

alleged to have been spoken by Black on the air were

never made. Before granting the motion for summary

judgment the court stated to Boyd, “Your papers fall so

short and they are contrary — I mean there is nothing in

your papers that are very helpful because it is just a

statement of your position. You need to have declarations,

portions of the transcript, of things of that nature, por-

tions of your deposition. ’

As conelusively confirmed by the transeript of the video

tape, not one of the alleged defamatory statements was

actually made in the Broadeast. Black never stated that

fraud charges, or any other type of charges would be filed

against Boyd. It appears that Black never used the word

A-7

“fraud,” nor were “charges” ever mentioned. Instead,

Black merely stated that ADP was going “to ask the

Attorney General’s office to investigate a possible misuse

of funds at PTP.” This statement was not defamatory and

in fact was true.

In her deposition, Boyd admitted that she did not view

the broadeast at any time after it was aired on July 21,

1982 and that she saw it only once on that date. She also

admitted to waiting months after the broadeast date

before preparing her complaint. She did not have a copy

of the video tape until discovery was conducted in this

action. As confirmed in her deposition, the allegations in

her complaint were based upon her personal recollection

of the broadcast. There is nothing whatsoever in the

record to support her allegation that the broadcast was

defamatory to her or that the tape is not as was broad-

easted. She cannot truly identify any false statement of

fact made during the broadcast.

As stated by the trial court, “Well, what in the tape

would suggest that the statements that you claim are

libelous were made? Nothing in this tape shows anything

about that you were being investigated for fraud.

“On the contrary, it says that an employee alleged there

has been some mishandling of funds. Mishandling of

funds could be putting it in the wrong drawer. That

doesn’t hardly rise to the kind of thing that gives a cause

of action for slander by a news reporting agency.”

The summary judgment was properly granted as re-

spondents never made the allegedly defamatory state-

ments. (See Philadelphia Newspapers, Inc. v. Hepps

(1986) 475 U.S. 767, 769.)

Moreover, Boyd is a “limited purpose publie figure.”

Consequently, any statements made without actual malice

A-8

are protected by a qualified constitutional privilege under

the First Amendment, as extended to state court lbel

actions by the Fourteenth Amendment. (See Curtis Pub-

lishing Co. v. Butts (1967) 388 U.S. 130, 155; Gertz v.

Robert Welch, Inc. (1974) 418 U.S. 323, 342-345, 351-352.)

In Gertz, the court defined two classes of publie figures.

The first is the “all purpose’ public figure who has

“achiev[ed] such pervasive fame or notoriety that he

becomes a public figure for all purposes and in all con-

texts.”’ The second category is that of the “limited pur-

pose” or “vortex” publie figure, an individual who

“voluntarily injects himself or is drawn into a particular

public controversy and thereby becomes a public figure

for a limited range of issues.” (418 U.S. at p. 351.) The

“limited purpose” public figure, unlike the “all purpose”

publie figure, loses certain protection for his reputation

only to the extent that the allegedly defamatory communi-

cation relates to his role in a public controversy.

From the record, Boyd played a significant roi2 in the

controversy surrounding drug treatment programs and

their sources of funding. By her own admission in her

disposition she has founded two organizations, I-TAC and

PTP, and she took an active role in bringing the drug

problem to the publie’s attention. The County of Los

Angeles hired her to found the South East Regional

Coalition to serve as (1) the coordinator for the South

East Regional Coalition on Aleohol and Drug Abuse and

(2) the eoordinator of the South East Region. On the

topie of drug programs and funding, Boyd states that

there ‘“‘were 600 people who attended 11 weeks of semi-

nars just to hear” her “expound” about ideas on drug

programs and funding. She appeared on NBC television

on a special feature on I-TAC and served on advisory

groups to the Board of Supervisors and to the Narcoties

A-9

and Dangerous Drugs Commisson. She stated that she

“was known from one end of the state to the other.”

Clearly, Boyd’s ability to properly manage public funds

was relevant to the public controversy and properly made

a subject of the news. Further, no evidence was intro-

duced showing that Black’s statements were made with

malice. (See Reader’s Digest Assn. v. Superior Court

(1974) 37 Cal.3d 244, 252.) There is absolutely no evi-

dence that respondeets entertained any doubts about the

truth of the broadeast. To the contrary, respondents

consulted reliable sources and obtained their information

from these sources. Black interviewed both Evans and

Cecil Miller. Evans was the former PTP Project Coordi-

nator, possessed a key to the PTP office and had access to

the program files. Miller was working at PTP on July 21st

when Black visited the ‘offices. Boyd, in her deposition,

admitted leaving Miller in charge of PTP when she was

on vacation because of his ability to handle emergencies

and his knowledge of drug treatment. Boyd alleges that

Miller and Evans are exconvicts, however, that fact, if

true, does not establish malice on the part of Black. Both

men were considered reliable by Boyd herself sinee she

entrusted responsibilities at PTP to them. Another source

of information was Sarah Davis, then Director of ADP.

There was nothing revealed during the investigation to

suggest any inaccuracies in the information obtained.

As stated in Fitzgerald v. Penthouse Intern., Ltd. (1982)

691 F.2d 666, 670, “ ‘As long as the sources of the libelous

information appeared reliable, and the defendant had no

doubt about its accuracy, the courts have held the evi-

dence of malice insufficient to support a jury verdict, even

if a more thorough investigation might have presented the

admitted error.’ ”’

A-10

Finally, it appears that the statements broadcast by

Black were privileged under subdivision 3 of section 47 of

the Civil Code which states, “A privileged... broadeast is

one made....In a communication, without malice, to a

person interested therein, (1) by one who is also inter-

ested, or (2) by one who stands in such relation to the

person interested as to afford a reasonable ground for

supposing the motive for the communication innocent.

...”’ To defeat the subdivision 3 privilege “‘actual malice”

must be shown. (Civ. Code, § 48.) Actual malice is defined

in Civil Code section 48a, subdivision 4(d) as “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 broadeast at the time

it is published or broadcast shall not constitute actual

malice.”

At issue in the broadcast was whether the director of a

publiely-funded drug treatment program in Southern Cal-

ifornia was responsibly managing tax money entrusted to

her for the eare of addicts. Clearly, this was a matter of

local publie interest and econeern. (See Rollenhagen v. City

of Orange (1981) 116 Cal.App.3d 414.)°

As discussed, supra, there is nothing presented in

record showing that any respendent or ABC harbored any

hatred or ill will or had any desire to injure Boyd at any

time. The declarations of the individual respondents es-

tablish that none of them knew Boyd persenally, and in

"Rollenhagen distinguished Rancho La Costa, Inc. v. Superior Court

(1980) 106 Cal.App.3d 646, in which the court found section 47,

subdivision 3 inapplicabie to a magazine story !inking the owners of a

famous resort to organized crime, on the ground that the defamatory

matters were only of general or idle curiosity and were published to a

national audience.

A-11

her deposition, Boyd admits that she never met any of the

respondents.

Additionally, the broadeast addressed a matter of pub-

lie interest and concern. Consequently, the broadcast was

the type of communication protection by section 47, sub-

division 3, and the court properly granted the motion for

summary judgment.

DISPOSITION

The judgment of dismissal is affirmed. Respondents

shall recover their costs on appeal.

NOT TO BE PUBLISHED

CROSKEY, J.

We Concur:

KLEIN, PJ.

ARABIAN, J.

APPENDIX B

ORDER DENYING REVIEW

OFFICE OF THE CLERK

COURT OF APPEAL

2nd District, Division 3, No. B033544

SO00945]

IN THE SUPREME COURT OF THE STATE OF

CALIFORNIA

IN BANK

BoybD, INEZ C.

VS,

BLACK, ANGELA, ET AL.

Appellant's petition for review DENIED

ee

APPENDIX C

COURT OF APPEAL OF THE

STATE OF CALIFORNIA

FOR THE SECOND APPELLATE DISTRICT

DIVISION: 3

Inez C. Boyd

4649 Paula Way

Fair Oaks, CA 95628

RE: Boyd, Inez C.

vs.

Black, Angela, Ete.

2 Civil BO33544

Los Angeles No. SEC 343543

* * REMITTITUR NOTICE ° °

Notice is hereby given that the Remittitur has been

issued this date and that the opinion, decision or order

entered in the above entitled cause on 02/10/89 is now

final.

** Affirmed In Full. * *

Appellant X Respondent to recover costs.

Each party to bear own costs.

Costs are not awarded in this proceeding.

MAY 24, 1989

ROBERT N. WILSON, Clerk

Deputy Clerk

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APPENDIX D-2

DECLARATION OF ROGER G. BELL

I, Roger G. Bell, declare and say as follows:

1. I am the Assistant News Director at KABC-TV, a

position which I have held for over four years. I have been

employed with KABC-TYV in various capacities for a total

of eleven years. As Assistant News Director, I am in-

volved in all aspects of News Department management at

KABC-TV. I make this declaration based upon my own

personal knowledge and, if called as a witness, could and

would testify to each of the matters set forth herein.

2. For at least the last eleven years, KABC-TV has

had a standard procedure, described below, for preserv-

ing the tapes of news stories that are broadeast by the

station. This procedure is rigorously adhered to, for

among other reasons, so that KABC-TV can maintain a

complete, accurate and permanent record of all such

stories.

3. Pursuant to this standard procedure, the following

steps are always taken by KABC-TV: Initially, a clean

eopy of each story broadeast on KABC-TV is kept on a

separate tape. Within one day of the date of broadcast,

each story is dubbed onto a one-hour tape, with other

stories that have been broadcast by the station during the

same time period. A label identifying the date of broad-

east is placed on the side of each one-hour tape and the

tape is then sent, for safekeeping, to a locked storage

room. The key to this locked storage room is only held by

KABC-TV supervisors and access to this room is only

available to KABC-TV employees on an “as needed”

basis.

4. The dated one-hour tapes are not altered in any

fashion while they are held in storage. I have never known

D-2-2

of any alteration of any tape which was stored by KABC-

TV in the above-described manner. Indeed, any alteration

of the tapes would be directly contrary to the purposes for

which the tapes are stored, 7.e., to maintain an accurate

record of the news stories broadcast by KABC-TV.

5. On July 21, 1982, at 5:00 p.m., KABC-TV broadcast

a two-minute and five-second investigative report con-

eerning Inez C. Boyd and Project Total Push (the

“Broadeast’”’). As soon as the Broadeast coneluded, the

tape of the Broadeast was maintained in the manner

described in paragraph 3, above.

6. I have examined KABC-TV’s tape of the Broadeast

and, to the best of my knowledge, there has been abso-

lutely no alteration of this tape. To the best of my

knowledge, this tape represents a complete and accurate

representation of the Broadcast. A true and correct video-

tape copy of the Broadeast is attached hereto as Exhibit

“-_

I declare under penalty of perjury that the foregoing is

true and correct.

Executed at Los Angeles, California, this 4th day of

December, 1987.

ROGER G. BELL

ROGER G. BELI.

APPENDIX E

DECLARATION OF ALBAN I. NILES

I, ALBAN I. NILES, declare:

I am currently a sitting Municipal Court Judge in the

County of Los Angeles, Los Angeles Judicial District. I

am personally acquainted with Inez Boyd. Ms. Boyd was

employed by Kedren Community Mental Health Center

(hereinafter ‘“Kedren’’) during a period which ended in

1976. I was President and General Counsel of Kedren

during this period. During the year 1975-1976, Ms. Boyd

was the Executive Director of Project Total Push, which

was a drug rehabilitation program funded by L.A. County

but administered and managed by Kedren.

On or about September 1, 1975, Kedren entered into a

written lease with the late Herman English, Esq., to rent

office space at 8508%, 8510 and 8512 South Broadway,

Los Angeles, California, to operate Project Total Push.

This lease expired on September 30, 1976. At that time,

Kedren lost its funding to continue the operation of

Project Total Push.

Subsequent to the termination of the lease, Ms. Boyd

began efforts to form a non-profit corporation in order to

continue the Project that had been begun while connected

to Kedren.

I declare under the penalty of perjury and under the

iaws of the State of California that the foregoing is true

and correct to my knowledge.

Executed this 27th day of March, 1986 at Los Angeles,

California.

ALBAN I. NILES

ALBAN I. NILES

APPENDIX F -

ANTI-DEFAMATION LEAGUE

Of B’nai B’rith

515 MADISON AVENUE, NEW YORK, 22, N.Y., PLaza 1-1800

January 21, 1963

Mrs. Inez C. Boyd

705 Moran Avenue

Toledo, Ohio

Dear Mrs. Boyd:

At your request, the Anti-Defamation League of B'nai

B’rith has reviewed the history of its pamphlet The

St. Louis Story: A Study of Desegregation, published in

1956. We find that it may well be that we did not give

adequate description of the fact that the principle source

upon which it was based was your Master’s Thesis on

“St. Louis, Missouri: A Study of the Desegregation Pro-

eess in an Urban Metropolis.”

We also find that it was part of our original under-

standing with you that we would have your thesis rewrit-

ten, revised and supplemented, as it appeared necessary

to us.

For the privilege of using your thesis in this manner,

ADL was to give you full credit as its author. This was

not done. Instead, the name of the person who rewrote the

work appeared on the pamphlet as sole author. The note

of acknowledgement to you on page 3 does not reflect

properly the fact that our publication was inspired pri-

marily by examination of your completed thesis and based

essentially on educational researeh originally conducted

by you. We, therefore, are happy to make the record clear

that this was the fact.

F-2

You may, of course, use this letter as you wish to

establish the important role you played in making this

pamphlet possible. It is our understanding that you are

making no claim for further financial recompense for your

role in connection with this pamphlet. As you know, our

supply of the piece has been exhausted for some time, and

we do not intend to reprint it.

We would, however, be happy to look at any follow-up

manuscript you may have for possible publication by ADL

and to give you our response and reactions.

Sineerely yours,

HENRY SCHWARZSCHILD

HENRY SCHWARZSCHILD

Director of Publications

HS/ap

ee: Mr. David M. Grant, Attorney

APPENDIX G

South East Regional Coalition

on Drugs and Alcohol Abuse

MINUTES

Present

Gloria E. Keyes, M.D

Alan Wilkins

Ernest Parker

[ona Alston

Carlene Phillips

Fay E. Wilson

William A. Long

Raymond Ulmer, Ph.D

Marie Bowden

Roderic W. Jones

Otto Hall

Marie DiDonna

Joan Freeman

Margaret Sarracino

Lloyd Robbs

Sechon

Paul H. Logan, M.D., M.P.H.

M. D. Bunton

MLK

L.A. Co

Rancho Los Amigos Hosp

Probation

Avalon-Carver

Avalon-Carver

Community Health Serv

Central Area Planning (

Drew/ King

Mini 12 Step House

L.A. Model Cities

Compton Judicial District

AIFC

AIFC

AIFC

ACSCLA

SEMHS

Kedren

CSSC

unNnell

November 20, 1973

639-8550

567-1341

2-7411

2-8113

53-4268

466-6417

98-4189

639-8550

3

3-0498

7

The South East Regional Coalition on Drug and Alcohol

Abuse was called to order by Gloria Keyes, Vice-Chair-

man at 9:40 a.m. Minutes of previous meeting were read

and approved after corrections.

1. Committee Reports a.

Planning and G«

vals

Mrs. Henry, chairman is out of town, and the commit-

tee will meet when she returns.

APPENDIX H

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BEST AVAILABLE COPY

PROOF OF SERVICE BY MAIL

STATE OF CALIFORNIA

’ 1S

COUNTY OF LOS ANGELES

I am a citizen of the United States and a resident of or

employed in the City of Los Angeles, County of Los

Angeles; I am over the age of 18 years and not a party to

the within action; my business address is 1706 Maple

Avenue, Los Angeles, California 90015.

On July 28, 1989, I served the within Petition for Writ

of Certiorari in re: “Inez C. Boyd vs. Angela Black,

Thomas Van Amburg, Kenneth Nelson, and KABC”’ in

the United States Supreme Court October Term 1989 No.

..., on all parties interested in said action, by placing

three true copies thereof enclosed in a sealed envelope,

with postage thereon fully prepaid, in the United States

Post Office mail box at Los Angeles, California, ad-

dressed as follows:

Michael J. O’Connor

James E. Curry

Christensen, White, Miller, Fink & Jacobs

2121 Avenue of the Stars, 18th Floor

Los Angeles, California 90067

All parties required to be served have been served.

I declare under penalty of perjury that the foregoing is

true and correct. Executed on July 28, 1989, at Los

Angeles, California.

¥ d . rd

ithniiies f 4 CHA A AS - ae \

1 va -

Y) J. GORDON HOOPER