Conklin v. Sloss

Opinion

Plaintiff, Milo Conklin, appeals from a judgment of dismissal entered after the trial court sustained, without leave to amend, defendants’ demurrer to plaintiff’s amended complaint for damages. This appeal raises the question whether the complaint states a cause of action for the tort of invasion of privacy. We hold that it does and reverse the judgment.

The material allegations of the amended complaint in summary recite that plaintiff is, and at all material times was, a resident of Cedarville, California, and a meat cutter by occupation; defendants are individuals doing business as the Modoc County Record, a weekly newspaper with its principle place of business in Alturas, California; on June 19, 1975, defendants, without privilege and without plaintiff’s consent, published under the caption, “Twenty Years Ago Today In Modoc County,” the statement, “Milo Conklin has been charged with the murder of his brother-in-law, Louis Blodgett, in Cedarville Sunday;” the statement is true; 20 years previously, plaintiff had been tried for and convicted of the murder of Louis Blodgett; he subsequently served a prison sentence, completed parole, remarried and fathered two children, and rehabilitated himself, assuming “a place in respectable society with many friends and family members who were unaware of the incidents of his earlier life.” The amended complaint further alleges that as a proximate result of the publication plaintiff’s friends and acquaintances learned for the first time of his unsavory past and abandoned him, exposing him and his family to contempt and ridicule and causing them mental anguish, embarrassment, and humiliation. Plaintiff claims general damages, alleges that defendants’ conduct was “willful, deliberate, and malicious,” and prays for exemplary damages.

In a second cause of action plaintiff alleges that defendants’ acts constituted a negligent invasion of his privacy for which he seeks both compensatory and exemplary damages, alleging that the negligent acts of

Defendants demurred on the ground that the amended complaint discloses the existence of privilege under Civil Code section 47, subdivision 4.

I

n Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529 [ 93 Cal.Rptr. 866 , 483 P.2d 34 , 57 A.L.R.3d 1 ], plaintiff, a rehabilitated felon, sued when, 11 years after he had hijacked a truck, the defendant Reader’s Digest published an article on truck hijacking; the article contained a sentence which mentioned plaintiff’s name and detailed the facts of his crime. Plaintiff alleged publication of the facts of the crime and his identity as perpetrator caused his new family and friends to become aware of his unsavory past and consequently to scorn and abandon him, exposing him to contempt and ridicule. On appeal from judgment of dismissal after defendant’s demurrer had been sustained the Supreme Court held plaintiff had stated a cause of action for invasion of privacy. The court drew a distinction between publication of facts'about recent crimes and those concerning crimes long past. Because of the important social interests served by publication of recent events, truthful reports of recent crimes and the names of suspects or offenders were held to be generally protected by the First Amendment. (4 Cal.3d at p. 537.) In the case of long past crimes, however, a distinction was drawn between the facts of the crime and the identity of the actor. Facts of long past crimes generally retain their newsworthy (and hence protected) character, the court held, for largely the same reasons that publications of current crimes and suspects’ identities are deemed newsworthy. In contrast, however, “. . . identification of the actor in reports of long past crimes usually serves little independent public purpose. Once- legal proceedings have terminated, and a suspect or offender has been released, identification of the individual will not usually aid the administration of justice. Identification will no longer serve to bring forth witnesses or obtain succor for victims. Unless the individual has reattracted the public eye to himself in some independent fashion, the only public ‘interest’ that would usually be served is that of curiosity.

“There may be times, of course, when an event involving private citizens may be so unique as to capture the imagination of all. In such cases—e.g., the behavior of the passengers on the sinking Titanic, the

The allegations in the instant complaint fall within the ambit of the Briscoe decision even though, as pointed out by defendants, obvious factual distinctions exist between the two cases. Briscoe committed his crime in Kentucky and thereafter began a new life thousands of miles away in California; his past misdeeds were brought to light in a magazine “published in 13 languages and distributed in 100 nations, with a circulation in California alone of almost 2,000,000 copies.” (4 Cal.3d at p. 540.) In contrast, plaintiff murdered his brother-in-law in Cedarville, a small community in a small northern California county; after paying his debt to society he returned to the same small community to resume his life; 20 years later his past crime was resurrected by a report in the defendants’ local weekly newspaper.

While a jury might find on the basis of the foregoing facts that plaintiff remains within the public arena of the community in which defendants’ newspaper is circulated (a finding necessarily fatal to his recovery) (see

However, in Briscoe, the Supreme Court declared that the right of a rehabilitated, “non-newsworthy” ex-offender to let his past misdeeds fade into the forgotten pages of history, was paramount to a publisher’s First Amendment freedom to publish the true, but “non-newsworthy” fact of plaintiff’s identity alongside the facts of his crime. To the extent that the Briscoe court may be said to have articulated California public policy in this area, it would appear that questions concerning the scope of the Civil Code section 47, subdivision 4 privilege should be resolved in favor of limiting it to publication of newsworthy items. The authors of the Restatement of Torts section 867, comment c, apparently contemplated this limitation when they wrote about the right to privacy: “. . . [One who] submits himself or his work for public approval . . . must necessarily pay the price of even unwelcome publicity through reports upon his private life and photographic reproductions of himself and his family, unless these are defamatory or exceed the bounds of fair comment. One who unwillingly comes into the public eye because of his

We therefore hold that the absolute privilege conferred by Civil Code section 47, subdivision 4, applies only to publications of items that are “newsworthy” as that term is defined in Briscoe v. Reader’s Digest Association, Inc., supra, 4 Cal.3d at pages 540-542.

Plaintiff has alleged facts which, if proven to the trier of fact, would indicate that he has “reverted to the lawful and unexciting life led by the great bulk of the community, ...” A jury persuaded of this fact might also find that defendants’ publication was not “newsworthy” and therefore not within the privilege of Civil Code section 47, subdivision 4. At the very least, we are unable to say as a matter of law that the privilege does or does not apply. It remains for the trier of fact to determine whether plaintiff has left the spotlight of local attention, as he claims, or whether instead defendants have proven facts which establish that the publication was newsworthy and accordingly privileged.

“[I]t is well settled that a general demurrer admits that truth of all material factual allegations in the complaint [citation]; that the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [citations]; and that plaintiff need only plead facts showing that he may be entitled to some relief [citation].” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 , 496 [ 86 Cal.Rptr. 88 , 468 P.2d 216 ].) As discussed above, plaintiff’s complaint alleges facts sufficient to state a cause of action under Briscoe v. Reader’s Digest Association, Inc., supra, 4 Cal.3d 529 , for the tort of invasion of privacy. And although the possible existence of privilege under Civil Code section 47, subdivision 4, is shown on the face of the complaint, it does not appear as a matter of law.