Stockton Newspapers, Inc. v. Superior Court

Opinion

Must a newspaper be convinced that a charge of official misconduct is true before it may publish conflicting accounts of the charge, free of a claim of libel? We conclude that it need not. We hold that a

The Other Evidence Tendered

Stockton Newspapers supported its motion for summary judgment with a declaration of Armando Durazo, the reporter who authored the article;

Durazo’s testimony is as follows. Durazo was given the assignment of investigating a complaint that the paper’s news coverage of the Arcus Brown murder and Miles’s confession and incarceration was one-sided and unfair to Miles. Durazo interviewed Miles and Miles’s half-brother, grandmother, grandfather, public defender, and defense investigator. The news article presents an accurate account of accusations made by Miles. Durazo also interviewed Stewart and Kenneth Meleyco, the deputy district attorney responsible for the Miles case. Durazo spoke with two other police officers concerning the Miles affair. Based on his investigation Durazo believed “that there was a genuine controversy” between Miles and Stewart over the manner in which the Stockton Police Department had treated Miles in its investigation and prosecution of this matter. Durazo “was unable to prove or disprove either Miles’ [s/c] or Stewart’s version . . . .”

Stewart introduced excerpts from a deposition he conducted of Durazo. When deposed Durazo testified he had no knowledge of Stewart prior to writing this article. Durazo also testified as follows: “[Question]: At the time this article was printed—published, did you believe that Sgt. Stewart encouraged Miles into confessing to murder? [jj] [Answer]: Again, I had my doubts. I was skeptical, like most reporters are. [jf] Q. Well, did you believe it to be true? [jf] A. There was some indication, yes, that it may have been true. [j|] Q. Did you as a reporter, believe it to be true? [j|] A. I had perhaps a gut feeling that yes, it may be true, [j]] Q. What caused you during your investigation to believe that it was true? ffl] A. People that I talked to have given me a pretty good indication that what Miles was telling me was the truth.”

Lopez’s testimony is as follows. Lopez edited the article and added the first paragraph based on discussions with Durazo. He concluded that the article was factually accurate. “Although there was an unresolved controversy over the confession given by Aubrey Miles [, Lopez] believed this controversy was newsworthy.” Stewart adduced a deposition excerpt that Lopez had no knowledge of Stewart prior to the time he edited the article.

Stewart’s declaration relates the following. Stewart was assigned to investigate the Arcus Brown killing. Brown was shot with a .22-caliber rifle from a green Pontiac Grand Prix in Stockton. Witnesses said three people were in the car. On December 20, 1979, a person who said he was Aubrey Miles telephoned and said he was in the car at the time of the killing. The caller

The trial court denied the motion for summary judgment. This writ proceeding followed.

Discussion

I

ntroduction

The gravamen of Officer Stewart’s claim of libel against Stockton Newspapers is that, when presented with conflicting reports of misconduct involving the officer and Miles, the newspaper elected to report both Stewart’s and Miles’s accounts of what happened, notwithstanding that the newspaper was skeptical about the truth of Miles’s account. Stewart impliedly argues that this skepticism gives rise to an inference of malice precluding resolution of the issue on summary judgment. That argument fails as a matter of law.

A libel is a “false and unprivileged publication . . . .” (§ 45.) By this definition, the absence of a privilege is an element of the tort. (See Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386 , 389 [ 182 Cal.Rptr. 438 ].) A claim of privilege thus constitutes a direct attack upon the tort. The essence of Stockton Newspapers’ defense is that a newspaper has a right to report the conflicting sides of a newsworthy story, notwith

The defense of privilege is advanced by the newspaper under two theories: the absolute privilege to publish a report of official proceedings under section 47, subdivision 4 and the First Amendment privilege established by New York Times Co. v. Sullivan (1964) 376 U.S. 254 [ 11 L.Ed.2d 686 , 84 S.Ct. 710 , 95 A.L.R.2d 1412 ] and its progeny. (See McCoy v. Hearst Corp. (1986) 42 Cal.3d 835 [ 231 Cal.Rptr. 518 , 727 P.2d 711 ].)

As will be shown, the claim of absolute privilege fails in the context of defendant’s motion for summary judgment. However, the undisputed material facts tendered in the summary judgment papers disclose another ground of resolution, that the newspaper article is conditionally privileged under subdivision 3 of section 47. This privilege was pled by the newspaper as an affirmative defense. The conditional privilege in these circumstances largely parallels the First Amendment privilege. Hence, the facts material to these theories were at issue in the summary judgment proceeding. Since the case can be resolved on the basis of the conditional privilege we have no occasion to resolve the issue as a matter of constitutional law. (Cf. e.g., Kapellas v. Kofman (1969) 1 Cal.3d 20 [ 81 Cal.Rptr. 360 , 459 P.2d 912 ].)

Preliminarily we address Stockton Newspapers’ claim that the article is a privileged publication by virtue of section 47, subdivision 4. It provides that a privileged publication is one made, “[b]y a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof, or (5) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued.” Thus, if a false utterance is made at a qualified proceeding, subdivision 4 affords an absolute privilege for its accurate republication.

We do not resolve the predicate question whether a police interrogation qualifies as an “other public official proceeding” (see, e.g., Ascherman v. Natanson (1972) 23 Cal.App.3d 861 [ 100 Cal.Rptr. 656 ]; Rest.2d Torts, §611, com. d.; compare § 47, subd. 4 with subd. 2) because, on the assumption that it is, there is a triable issue of material fact which precludes the resolution of this claim on defendant’s motion for summary judgment.

A motion for summary judgment “shall be granted [only] if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c), italics added.) Materiality is a question

The privilege afforded by subdivision 4 applies only if the account of the (assumed privileged) proceeding, the police interrogation, is “true.” But the summary judgment papers show that this fact is in dispute. The published account of the interrogation comes not from the author of the newspaper article, Armando Durazo, but from the subject of the interrogation, Miles. If Miles’s account of the interrogation is not true the privilege provided by subdivision 4 is unavailable. (See, e.g., Maher v. Devlin (1928) 203 Cal. 270 , 285-286 [ 263 P. 812 ]; cf. Rest.2d Torts, § 611, com. f; Prosser and Keeton on Torts (5th ed. 1984) § 115, p. 838.) Whether Miles’s account is true is, on the papers submitted, in dispute. Accordingly, Stockton Newspapers has not made out the defense of privilege of section 47, subdivision 4 sufficient to entitle it to a summary judgment.

A.

Nonetheless, the undisputed facts set out in the summary judgment papers show the existence of another privilege, the conditional privilege provided by subdivision 3 of section 47. Subdivision 3 provides that a privileged publication is one made, “[i]n a communication, without malice, to a person interested therein, (1) by one who is also interested, 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, or (3) who is requested by the person interested to give the information.”

A factual assertion in a newspaper about the official conduct of a public officer, if made without malice, is within the ambit of this subdivision, for reasons set out in Snively v. Record Publishing Co. (1921) 185 Cal. 565 , 571-572 [ 198 P. 1 ]. “Since the conduct of public officers in the administration of their offices is a matter in which every citizen of the community which they serve is interested, the publication in question, if otherwise privileged, must be considered as one made to persons interested, and on an occasion which would ordinarily afford reasonable grounds for supposing that it was made from innocent motives. The publication, therefore, appears to come within this part of the definition of privilege as given in subdivision 3 [of section 47].” (Ibid.) Such a publication is privileged even though untrue. (Id., at pp. 572-576; see also Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146 , 154-155 [ 143 P.2d 20 , 150 A.L.R. 916 ].)

The value of public communication, which Snively discerned in this reading of subdivision 3, is the same as that protected by the First Amendment

The answer is that the publication is attributable to an improper purpose when the purpose of informing the interested party does not account for the behavior of the publisher. Ordinarily an abuse of the privileged occasion is made out when it is shown that the publisher did not believe that the injurious statement was true. Even if the publisher has such a belief, an abuse may be shown if there are no reasonable grounds, no probable cause for the belief. (See, e.g., Snively, supra, 185 Cal. at pp. 576-578; Rest.2d Torts, § 600.) The apparent logic in this reasoning is that ordinarily a purpose to inform an interested person would not be the reason for a knowing lie or for making a damaging assertion without reasonable backing.

However, the law recognizes that this logic is inapplicable in circumstances in which the purpose to inform exists notwithstanding an absence of belief in the truth of the matter reported. Thus an exception from the requirement for such belief arises in the case “where the protection of the interest involved may make it reasonable to report rumors or statements that the publisher may even know are false . . . .” (Brewer, supra, 32 Cal.2d at p. 797; also see, e.g., Rest.2d Torts, § 602.)

The conditions for such a case are set forth in Restatement Second of Torts section 602. “One who upon an occasion giving rise to a conditional privilege publishes a defamatory rumor or suspicion concerning another does not abuse the privilege, even if he knows or believes the rumor or suspicion to be false, if [^] (a) he states the defamatory matter as a rumor or suspicion and not as fact, and [if] (b) the relation of the parties, the importance of the interests affected and the harm likely to be done make the publication reasonable.”

The pertinent considerations are elaborated in the comments to Restatement Second of Torts section 602. The value of the interest sought to be protected by the communication must be weighed against the likely damage of the assertion, if false. “If the interest that [the publisher] reasonably believes to be in danger is of great value and if the harm that he reasonably

Nonetheless, such a report must be substantially accurate. If the facts are “exaggerated, overdrawn, or colored to the detriment of the plaintiff, or are not stated fully and fairly with respect to the plaintiff,” the privilege may be lost. (See Snively, supra, 185 Cal. at p. 578.) Where the gist of a stinging account of a charge of official impropriety is accurate, the fact that the presentation could have been more evenhanded does not amount to malice in law. This rule has been recognized in similar contexts as necessary to prevent analogous privileges from being defeated by such collateral claims. (See, e.g., Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244 , 262, fn. 13 [ 208 Cal.Rptr. 137 , 690 P.2d 610 ].) With these principles in mind we determine whether there are triable issues of material fact concerning the privilege of section 47, subdivision 3.

We note again the utter absence of evidence of preexisting hatred or ill will by Stockton Newspapers or any of its agents toward Stewart. There is no reason to suppose that the published account was contrived or fabricated to further some personal vendetta. The absence of any indication that there may be facts evidencing an ulterior motive precludes denial of summary judgment on the theory that such facts, “essential to justify opposition may exist but cannot [yet] be presented.” (Code Civ. Proc., § 437c, subd. (h).)

Stewart relies on the fact that neither Durazo or Lopez unequivocally believed in the truth of all of Miles’s charges. Although each recalls reservations concerning whether Miles’s account was true, as we have explained, this is immaterial. Since they did not endorse Miles’s version as the truth, they need not have had a belief that it was more probably true than false. It suffices that they were not convinced the charge was false and that they perceived the controversy as newsworthy. As related, publication of an attributed account of alleged official impropriety, in the performance of the ordinary business of the press, does not amount to legal malice.

Stewart protests that Miles’s account is “inherently” incredible. That is not a ground upon which the privilege to publish the attributed report may

Stewart claims the publication is not privileged because the account is inaccurate. But none of the claimed inaccuracies raise a triable issue of material fact because they do not materially advance or enhance the sting of the account. Stewart acknowledges that the sting of the alleged libel is the claim he wrongfully coerced a mentally retarded person into a confession to murder. None of the claimed inaccuracies in the presentation of the account significantly enhances the sting. We discuss the foremost two of the claims as representative examples.

Stewart argues that the article is materially distorted by Lopez’s sentimental prologue concerning the “three strikes against” Miles when Stewart came to his door. Each of the factors Lopez proffered as a disadvantage was present as he asserted. The only potential falsehood is the assertion that Miles was aware of these disadvantages. Regardless of Miles’s state of mind, the prologue does not materially aid the thrust of the damaging account. The prologue does tend to foreshadow a conclusion that an injustice has been visited upon Miles. However, the provocative emotive chord is merely an entree to the balanced material factual assertions contained in the article. Moreover, it is too much to expect, nor does the law require, forensic even-handedness from popular writers who must strive not to bore their readers. (See Reader’s Digest Assn. v. Superior Court, supra, 37 Cal.3d at pp. 261-265.)

Stewart claims inaccuracy in the second sentence, “Miles, 19, was questioned about and then confessed to a murder he didn’t commit.” Stewart argues that this is a material distortion because, under his version of the incident, Miles confessed during a telephone conversation and merely confirmed this confession when interrogated. This is a quibble; it furnishes not the slightest support for a finding of malice. A confession is no less a confession the second time around. Moreover, the article reports Stewart’s claim that Miles had admitted involvement in the shooting in a telephone conversation which preceded his interrogation.

Stewart’s other claims of collateral inaccuracy are no more persuasive and do not warrant, singly or in the aggregate, textual discussion. On this record there is no triable issue of material fact regarding inaccuracy. The account of the controversy presented in the article conveys the available information concerning the arrest and incarceration of Miles with substantial accuracy. Nothing that was included is unsubstantiated; nothing that is claimed to have been omitted would significantly alter the existing balance of credibility concerning the controversy in Stewart’s favor.

The wiser rule derives from the related privilege arising under the federal constitutional law. “Failure to investigate, without more, does not demonstrate actual malice.” (Marcone v. Penthouse Intern. Magazine for Men (3d Cir. 1985) 754 F.2d 1072 , 1089; see also Coughlin v. Westinghouse Broadcasting and Cable (E.D.Pa. 1985) 603 F.Supp. 377 , 387 (“Evidence of failure to investigate, even if it establishes that defendant was indifferent to the truth of an allegedly defamatory communication, is . . . insufficient to show that defendant acted with malice”).) Likewise, “[m]ere negligence in investigation by a reporter . . . do[es] not alone rise to the level of reckless disregard.” (Roberts v. Dover (M.D.Tenn. 1981) 525 F.Supp. 987 , 993.) In keeping with purposes served by the privilege, we import this rule into section 47, subdivision 3.

To show the difficulties which would accompany an attempt to saddle the press with a legal duty to investigate, it should be said that the further investigation suggested by Stewart would not have resolved the controversy. Stewart complains that Durazo failed to read the police report he had prepared, which states that Miles called the police department, spoke with plaintiff, and admitted being involved in the shooting of Arcus Brown. But this sheds no new light. The report was prepared by Stewart. Durazo had interviewed Stewart and obtained his version of the facts surrounding the arrest and interrogation of Miles. Consequently, the statements in the report would merely be cumulative to the information obtained during the interview.

Stewart also complains that Durazo failed to read and consider a psychiatrist’s report, which concludes that Miles’s confession may not be true because he “seems to be easily overloaded and upset and may say a number of things under the pressure of the interview or pressure of the moment.” However, Durazo was already aware that Miles was susceptible to pressure and had made untrue statements during his interrogation. Any material Durazo could have gleaned from the psychiatrist’s report would also have been cumulative. Even if failure to adequately investigate were material in

Disposition

All of the papers submitted show that there is no triable issue of material fact regarding the defense of privilege under section 47, subdivision 3. The petition has been served on respondent court and plaintiff. Having advised the parties that we were considering issuing a peremptory writ without first issuing an alternative writ, and having thereafter received further opposition to the petition, this court is empowered to issue a peremptory writ of mandate in the first instance. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [ 203 Cal.Rptr. 626 , 681 P.2d 893 ]; St. Paul Fire & Marine Ins. Co. v. Superior Court (1984) 161 Cal.App.3d 1199 , 1201 [ 208 Cal.Rptr. 5 ].)

Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying defendant’s motion for summary judgment and to enter a new order granting the motion. Upon this decision becoming final, the stay previously issued is vacated.

Carr, J., and Sparks, J., concurred.