Rancho La Costa, Inc. v. Superior Court

Opinion

Nature of Proceedings:

Plaintiffs in a libel action seek from this court a writ of mandate to compel the trial court to vacate its order of summary adjudication that

In making its notice of intended ruling of April 5, 1976, the court stated that it had considered “in complete detail all the briefs, motions, pleadings, exhibits and evidence in this case.” On June 25, 1976, the court declared that there were triable issues of fact with respect to whether or not all of the plaintiffs (except Mr. Dalitz and Mr. Roen) are public figures.

After the order of June 25, 1976, defendants petitioned the Court of Appeal for writ of mandate, which was denied. Hearing was denied by the California Supreme Court and certiorari denied by the United States Supreme Court. In July 1977, defendants again made a motion for summary judgment, this time expressly based upon the asserted privilege under Civil Code section 47(3). The defendants urged that this privilege was not ruled upon and formed no part of the basis of the trial court’s earlier rulings of April 5, 1976, and its order of June 25, 1976,

The Rosenbloom extension of the New York Times Co. v. Sullivan privilege to defamation of private individuals “involved in” matters of “public or general concern” was expressly rejected and overruled by the Supreme Court in Gertz v. Robert Welch, Inc., supra, 418 U.S. 323 . In Gertz, the court recognized two possible classifications of public figures, i.e. (1) the all-purpose public figure and (2) the limited-purpose public figure. As to the first type, the court explained that there might be in some instances certain persons who “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” {Id. at p. 345 [41 L.Ed.2d at p. 808].) Quoting from Curtis Publishing Co. v. Butts, supra, the Gertz court indicated that such individuals are those who “‘by reason of their fame, shape events in areas of concern to society at large.’” {Gertz v. Robert Welch, Inc., supra, 418 U.S. 323 , 337 [ 41 L.Ed.2d 789 , 803].) In this respect the court, however, cautioned: “[ajbsent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life.” {Id. at p. 352 [41 L.Ed.2d at p. 812].) The second group, the limited-purpose public figures, was defined as those who “have thrust themselves to the forefront of particular public controversies in order to

It is significant that the Gertz court described other interests to be considered. It said: “We begin with the common ground. Under the First Amendment there is no such thing as a false idea... [b]ut there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in ‘uninhibited, robust, and wide-open’ debate on public issues. [Citation.] They belong to that category of utterances which ‘are no essential 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.’ [Citation.]” (418 U.S. pp. 339-340 [41 L.Ed.2d p. 805].)

The court further held: “The need to avoid self-censorship by the news media is... not the only societal value at issue....

“The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as Mr. Justice Stewart has reminded us, the individual’s right to the protection of his own good name ‘reflects no more than our basic concept of the essential dignity and worth of every human being—a concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system.’ [Citation.]” (418 U.S. at p. 341 [41 L.Ed.2d at p. 806].) More significantly, in California this right of privacy is not merely implied but is expressly set forth in article I, section 1 of the state Constitution.

In Gertz, the plaintiff, an attorney, by his own admission had an extensive record of public activity involving thousands of writings and public appearances and involvement in matters affected with public interest. There was evidence that he had written thousands of articles and reviews for countless publications. He had written for encyclopedias and other books and pamphlets and plays. He had written legal articles; he

At bench there is no public controversy or debate over the “desirability” of “organized crime.” There truly never has been. All conscientious and responsible citizens are opposed to it. There was no “controversy” over La Costa itself. At most it was a matter of limited press interest. The creation of a large resort-spa and attendant facilities created no “public controversy.” But, even if La Costa were deemed arguendo a matter of public controversy, that fact alone would not and does not make petitioners public figures. In Hutchinson v. Proxmire, supra, 443 U.S. Ill, the court similarly held that plaintiff there, a prominent scientist and ádministrator who had broad “access to the media,” was likewise not a public figure because: “Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures.” (Id. at p. 135 [61 L.Ed.2d at p. 431].)

California has recently recognized the limits placed upon defamatory speech by the United States Supreme Court cases discussed above. In Franklin v. Benevolent etc. Order of Elks (1979) 97 Cal.App.3d 915 [ 159 Cal.Rptr. 131 ], defendant Elks association was sued by plaintiff school teacher. She had selected parts of a book which was a “pastiche of underground writings concerning revolution, sex and drugs, vividly illustrated and replete with vulgar language,” (id. at p. 919) for use in her high school classroom. The defendant organization wrote and published an editorial in its own magazine strongly criticizing the book and its use as instructional material. The editorial reported that the teacher had been dismissed from another school system and opined that she was not the sort of teacher that anyone wanted teaching in our school system. In the defense of the ensuing libel action, the defendants moved for summary judgment based on the contention that the teacher could not establish as an essential element of her case i.e., that the alleged libels were published with actual malice; that she as a public official and public figure was required to establish such malice. The court summarily rejected the assertion that a school teacher was a public official. As to the question of whether the teacher had been a public figure, the court said: “In our view the definition of ‘public figure’ which has evolved from Butts through Gertz, Firestone and Wolston incorporates as an element a requirement that the libel plaintiff must have voluntar

The recent case of Weingarten v. Block (1980) 102 Cal.App.3d 129 [ 162 Cal.Rptr. 701 ], affords a comparison of one who is truly a public official or public figure and who has thrown himself into the vortex of the particular controversy. The court there correctly recognized that the attorney for a city or for a public district is a public figure. But, moreover, the court explained that the employee’s position must be one which would invite public scrutiny and discussion of the person holding it, entirely apart, from the scrutiny and discussion occasioned by the particular charges in controversy. The court there noted the activities of the plaintiff which were set forth in the findings of the court. He was active as a lawyer, an officer of a political party, a candidate for the state legislature, the leader of a recall movement, and a prolific real estate dealer. He had voluntarily appeared and spoken openly concerning matters of city and public affairs which related to and affected his property dealings. He had not only been city attorney but was also attorney for the redevelopment agency. As such, plaintiff had substantial control over the conduct of governmental affairs of the city. After his discharge as city attorney and the recall of some of the city council’s members who had discharged him, the public had an independent interest in anything that might touch on his fitness for that office and for his continued services to the redevelopment agency.

Considering next the corporate or public nature of some of the plaintiffs, that fact affords defendants no greater privilege of defamation. (Vegod Corp. v. American Broadcasting Companies, Inc., supra, 25 Cal.3d 763 .) The court there said that for the purposes of applying the First Amendment privilege to defamation claims, there is no difference between corporations and individuals. Corporations may equally be public figures but are equally entitled to the same protections as private individuals with reference to the public-figure aspect and the issue of malice. Recognizing and relying primarily upon the persuasions and holdings of Firestone and Gertz, our Supreme Court said in Vegod: “Defendants argue that the demise and closing out sale of the City of Paris were matters of public controversy because it was a ‘landmark store.’ Even assuming the venerable store’s planned destruction created

“Defendants also urge that by selling goods to the public and by advertising the sale plaintiffs became public figures. In Gertz the court in concluding that he was not a public figure pointed out that Mr. Gertz had never discussed the civil or criminal litigation with the press. In Firestone the court pointed out that Mrs. Firestone did not seek publicity on the propriety of her marital conduct.

“While availability of goods for sale and their quality are matters of public interest, this is not the test. The public interest test was expressly rejected in Gertz (418 U.S. at p. 346 [41 L.Ed.2d at p. 809]), and in Firestone (424 U.S. at pp. 455-456 [47 L.Ed.2d at pp. 163-164]), in favor of the public controversy test. (See also Hutchinson v. Proxmire (1979) 443 U.S. Ill [ 61 L.Ed.2d 411 , 99 S.Ct. 2675 ].)

“Criticism of commercial conduct does not deserve the special protection of the actual malice test. Balancing one individual’s limited First Amendment interest against another^ reputation interest (Herbert v. Lando (1979) 441 U.S. 153 , 169, [ 60 L.Ed.2d 115 , 129, 99 S.Ct. 1635 ]), we conclude that a person in the business world advertising his wares does not necessarily become part of an existing public controversy. It follows those assuming the role of business practice critic do not acquire the First Amendment privilege to denigrate such entrepreneur.” [Fn. omitted.] (Vegod Corp. v. American Broadcasting Companies, Inc., supra, 25 Cal.3d 763 , 769-770.)

It is apparent from Vegod that merely because a corporation sells services to the public as does La Costa, and merely because it employs and has access to the media to advertise its services (as Vegod had the access to advertise its wares) does not mean that such ability gives the corporation the status of one with greater power of persuasion on public issues, controversial or not, or all-pervasive influence. Thus it is apparent that neither the “public interest” test rejected in Gertz nor the voluntarily-thrusting-into-public-controversy test present in Weingarten v. Block applies simply because of the availability of advertising.

Assessing the status of petitioners at bench in the light of the above cases from the United States Supreme Court, and especially comparing the protected “private individual” status accorded the several plaintiffs in Gertz, Firestone, Wolston and Hutchinson and further considering the tremendous amount of prelibel publicity given to those respective individuals, it appears to us from the record that the evidence presented to the trial court concerning the petitioners here falls far short of the quality and quantity, required. The record fails to demonstrate that level of clarity and substance of evidence required to prove and establish the petitioners as public figures.

The Inadequacy of Shoe Box Evidence

In proving that the plaintiff in a libel action is a public figure, it is not enough simply to present evidence of much publicity. The quantity of such evidence might be a shoe boxful or a trunkful of newspaper and magazine clippings. Admittedly, in this case the amount of evidence presented to the trial court in support of the motion was extremely voluminous. Not all of it was physically present before Judge Dell when he heard and considered the motion. It originally consisted of several boxes of books, magazines, newspaper clippings, reports, and later had added to it exhibits to depositions. A large amount was presented to Judge LeSage in 1975. Some of it was lost. There may have been copies of the lost material. Copies of the lost material together with other documents were summarized by Jewel Bjork, cocounsel for defendants. She presented to Judge Dell an affidavit summarizing the nature of the hundreds of documents and papers constituting the exhibits. We have no question concerning the truthfulness of Ms. Bjork’s affidavit nor the truthful description of the contents of the original documents. In her affidavit Ms. Bjork classifies the mass of documentary evidence gathered

“(b) plaintiffs’ general fame or notoriety in the community (Exhibit 2);

“(c) plaintiffs’ purposeful involvement in the vortex of the La Costa story (Exhibit 3);

“(d) the genesis and history of the controversy about La Costa (Exhibit 4);

“(e) the continuing public interest in the controversy and the plaintiffs (Exhibit 5);

“(f) the public figure status of Dalitz and Roen, as shown earlier in this action via the Gelb affidavits of 1975 (Exhibit 6);

“(g) the identification of Dalitz and Molasky as figures involved with organized crime by the Attorney General of the State of California (Exhibit 7); and

“(h) the intense public interest and concern with crime, Teamsters Pension Fund loans, corrupt business and politics (Exhibit 8).”

We have not personally examined this mass of documentary evidence. However, giving full credence to Ms. Bjork’s statement as to what the seven groups contain, it is clear to us that the evidence is legally insufficient. Ms. Bjork’s characterization of much of the material as more fully described in her affidavit is conclusionary; on the specific question of the status or character of the plaintiffs, as “mobsters,” “gangsters,” “crooks,” and “associates” of crooks and mobsters, etc. the “evidentiary” material is “99 and 44/100’s%” pure hearsay and itself conclusionary. Most of the purported evidence is third- and fourth-hand hearsay. Most of the documents discussed in Ms. Bjork’s affidavit refer to other documents or sources of hearsay such as prior “reports” by newspapers, magazines, television “documentaries” and the like. There is no showing that there was presented to the trial court either at the 1975, 1977 or 1978 hearings or to Judge Dell at the 1979 hearing, any primary source of information relative to the specific conduct of any particular plaintiff

Even if the material is a mountain of clippings, it is no better than that in Franklin v. Benevolent etc. Order of Elks, supra, 97 Cal.App.3d 915 , 930, where the court said: “Respondents tendered in support of their motion for . summary judgment, in addition to materials plainly directed to the actual-malice issue, a voluminous collection of clippings from newspapers and from a newsmagazine, relating both to the San Rafael textbook controversy and to an episode several years earlier, in Paradise, California, in which appellant had experienced a similar confrontation over her teaching methods with the local American Legion post. It is elementary that affidavits in support of a motion for summary judgment shall contain, and may be considered only to the extent that they contain, admissible evidence (Code Civ. Proc., § 437c; 4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, §§ 180-187, pp. 2832-2837). It is clear that, by virtue of the hearsay rule (Evid. Code, § 1200 et seq.), respondents’ collection of clippings was not admissible evidence of the facts stated therein, but could be competent evidence only of the fact that appellant had received a considerable amount of publicity.” Similarly, we here reject the proposition that public figure status can be established by evidence of much publicity which, in turn, is primarily or basically a voluminous amount of newspaper and magazine articles, the “shoe-boxful” method of proof.

That the plaintiffs’ commercial enterprises, La Costa Resorts and the other corporate activities, advertised their services for purposes of promoting business nationwide, does not add to or change the “shoe box” evidence here. (Vegod Corp. v. American Broadcasting Companies, Inc., supra, 25 Cal.3d 763 .) Moreover, absent the requisite elements of public figure status, as we have discussed them above, no amount of publicity can involuntarily convert the purely private individual into a public figure. Lacking at bench is direct evidence of facts showing that plaintiffs intentionally and voluntarily sought publicity or entered into a particular controversy to affect its outcome. Defendants have a mountain of material. But they do not point to any items of evidence showing (1) what particular controversy existed, (2) the particular acts as to

While this definition may not be exclusive, it is clear that the case at bench does not qualify for application of the conditional privilege. The strictly limited statutory qualified privilege is inapplicable to a defamatory article published at large to a vast audience in a national magazine.

In Gilman v. McClatchy, supra, 111 Cal. 606 , where the Supreme Court of California unequivocally denied the applicability of the section 47(3) privilege to a false newspaper report that the plaintiff had committed a crime, the court said: “In this case appellant asks for such an extension of the law as would give immunity to publishers of libels, provided express malice in the publication be absent. In other words, his contention resolves itself to this, that a newspaper is a purveyor of news; the people have the right to read the news; any story gleaned by a reporter as this was gleaned, and published in the ordinary course of newspaper business without personal malevolence against the victim of the tale, should be held privileged. [If] In support of this contention there is neither authority, law, nor justice.” Id. at pp. 613-614.)

In Gilman, the court recognized a privilege under section 47(3) to comment fairly on the conduct of “public officials” but it refused (much like the Supreme Court in Gertz v. Welch) to extend the qualified privilege to all matters of “public interest,” on the ground that such an extension “would... put upon the people a greater evil than that which the constitution sought to prevent.” The court concurred with the case of McAllister v. Detroit Free Press Co. (1889) 76 Mich. 338 [ 43 N.W. 431 , 15 Am. St. Rep. 318 ], quoting the language therein, as follows: “‘No newspaper has any right to trifle with the reputation of any citizen, or by carelessness or recklessness to injure his good name and fame, or business.... And no sophistry of reasoning, and no excuse of the demand of the public for news, or of the peculiarity and magnitude

That principle has been reaffirmed in more recent cases, e.g., Peoples v. Tautfest (1969) 274 Cal.App.2d 630 , 636-637 [ 79 Cal.Rptr. 478 ], where the court held: “We conclude that the privilege provided in subdivision 3 of section 47 is not applicable to the case at bench.... The accusations were made to persons sought out by appellants and were unsolicited. They did not relate directly to the conduct of a public officer or employee or of a candidate for public office. [Citations.]”

So too, in Newby v. Times-Mirror Co., supra, 46 CalApp. 110 , where an attorney sued a newspaper for libel, and the newspaper alleged a privilege under section 47(3) of the Civil Code, the court held that an article is not privileged “simply because it relates to a subject of public interest.” To the same effect, see Newby v. Times-Mirror Co. (1916) 173 Cal. 387 [ 160 P. 233 ]; Edwards v. Publishing Soc. (1893) 99 Cal. 431 [ 34 P. 128 ]. In Edwards it was emphatically held that: “A newspaper proprietor is not privileged as such in the dissemination of the news, but is liable for what he publishes in the same manner as any other individual. (McAllister v. Detroit Free Press Co., 76 Mich. 338 ; 15 Am. St. Rep. 318 ).” (Id. at p. 439.)

In Earl v. Times-Mirror Co. (1921) 185 Cal. 165 [ 196 P. 57 ], the defendants again invoked section 47. The Supreme Court rejected the claimed application of the conditional privilege saying: “That the publication of a newspaper by the plaintiff, as a matter of law affects either the liability of the defendants to respond in damages, or the right of the plaintiff to recover for a publication which would be considered libelous as to any other person, is a proposition that cannot be successfully maintained. The decision in the case of Newby v. Times-Mirror Co., 173 Cal. 387 , [Ann. Cas. 1917E, 186, 160 Pac. 233 ], supports this conclusion.” (Id. at p. 197.)

The authorities cited by defendants in the memoranda to the trial court and before us as part of the exhibits are distinguishable. A number of those cases which applied the section 47(3) privilege to defamatory comments related to public officials. (E.g., Snively v. Record Publishing Co. (1921) 185 Cal. 565 [ 198 P. 1 ]; Harris v. Curtis

Plaintiffs as private individuals are entitled to the protection of their right of privacy. That right is entitled to redress when violated. Under the mandate of the recent federal Supreme Court rulings, the right of privacy is paramount to the right of free speech when in the exercise of free speech a defendant violates another’s privacy by uttering a defamatory lie about him. The right of free speech guaranteed by the state and federal Constitutions does not permit violation of the right of privacy. It most surely follows that the privilege created by Civil Code section 47(3), a statute, and thus a law of lesser organic force, cannot be expanded to permit violation of that same right of privacy. Whatever privilege is accorded defendants under Civil Code section 47(3), it must yield to the plaintiffs’ constitutional rights of privacy.

We need not extend the discussion of the inapplicability of section 47(3) relative to the subject matter of the publication at bench, and who was interested therein, who was entitled to receive and who was entitled to disseminate it. Such discussion is made unnecessary because the only basis upon which defendants seek the benefit of the statute is by saying that the public at large, and hence that part thereof which constitutes its readership, is interested generally in the fight against organized crime. There being no specific evidence of any particular or specific subject matter of communication, no recital of the inadequacy of the evidence on the application of the section is necessary.

Defendants contend that the application of section 47(3) is solely a matter of law, and its application is apparent from the plaintiffs’ own complaint. We have accepted defendants’ premise in this present discussion relative to Civil Code section 47(3). The complaint discloses that the plaintiffs organized corporations and are officers and directors thereof. The corporations operate hotels, resorts, spas and attendant

In summary, we conclude that there remain factual questions to be tried. Either party is entitled to a trial by jury on these issues of fact, if a jury has been properly requested. The trial court can prepare instructions to the jury as to what facts it must determine are present and which are necessary to constitute libel, and what facts make a person a public figure and what is malice. The plaintiffs are entitled to recover if they can prove (1) the publication of a libelous statement, and (2) damages arising therefrom. Defendants are still entitled to prove if they can the fact that plaintiffs are public figures. They have the burden of proof thereon. They may seek to prove such fact by the introduction of competent evidence on that issue. That evidence may include evidence that by their voluntary conduct, plaintiffs intentionally or unwittingly removed themselves from the status of private persons, or willingly exposed themselves and relinquished their rights of privacy. If the defendants so prove that plaintiffs are public figures, then plaintiffs in order to recover must, in addition to proving the publication of a libelous statement, prove that the publication was made with malice as that term is defined under California law and the damages therefrom.

It is ordered that a writ issue directing the superior court to vacate its order of November 2, 1979, and to make and enter a new and different order consistent with the opinions expressed herein.

Roth, P. J., and Fleming, J., concurred.

A petition for a rehearing was denied June 26, 1980, and the petition of real parties in interest for a hearing by the Supreme Court was denied August 28, 1980. Tobriner, J., was of the opinion that the petition should be granted.