912 F.2d 1049 (9th Cir. 1990), 89-15751, Unelko Corp. v. Rooney

Docket Nº:89-15751.
Citation:912 F.2d 1049
Party Name:UNELKO CORP., an Illinois corporation; Howard G. Ohlhausen, Plaintiffs-Appellants, v. Andy ROONEY, an individual; CBS, Inc., Defendants-Appellees.
Case Date:August 24, 1990
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1049

912 F.2d 1049 (9th Cir. 1990)

UNELKO CORP., an Illinois corporation; Howard G. Ohlhausen,

Plaintiffs-Appellants,

v.

Andy ROONEY, an individual; CBS, Inc., Defendants-Appellees.

No. 89-15751.

United States Court of Appeals, Ninth Circuit

August 24, 1990

Argued and Submitted July 20, 1990.

Page 1050

Robert P. Cummins, Bickel & Brewer, Chicago, Ill., Robert H. Oberbillig, Snell & Wilmer, Phoenix, Ariz., for plaintiffs-appellants.

Douglas P. Jacobs, Helen M. Gold, CBS, Inc., New York City, David J. Bodney, Daniel C. Barr, Brown & Bain, P.A., Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before ALARCON and POOLE, Circuit Judges, and HATTER, District Judge. [*]

ALARCON, Circuit Judge:

Plaintiffs Unelko Corporation and Howard G. Ohlhausen (Unelko) appeal from an order dismissing their defamation claim against Andy Rooney and CBS, Inc. (Rooney) on summary judgment. The suit arises from statements made by Rooney during the April 17 and May 8, 1988 broadcasts of "60 Minutes," among which was the assertion that Unelko's product "Rain-X" "didn't work." The district court granted summary judgment for Rooney, finding that Rooney's statement that Rain-X "didn't work" was protected as opinion and that Unelko had failed to raise a triable issue of fact as to whether any of Rooney's statements were false and defamatory. We affirm because we agree that Unelko failed to create a triable issue of fact as to falsity.

STATEMENT OF THE CASE

On October 1, 1987, The Arizona Republic published a column by Andy Rooney, entitled "RAIN," which reflected on the writer's associations with rainy days. In response to Rooney's comment that cars should have "truck-sized windshield wipers" that would clean the entire windshield, Unelko's national sales manager sent Rooney a letter accompanied by a small supply of Unelko's product "Rain-X." The letter stated in part:

Andy, you don't need those truck-size windshield wipers--all you need is RAIN-X--"The Invisible Windshield Wiper". The one-step, wipe-on automotive glass coating that repels rain, sleet and snow on contact and takes up where windshield wipers leave off!

Our President, Howard Ohlhausen, inventor of RAIN-X (among other chemical products) first realized the same drawbacks that you referred to in your article as a navigator in the United States Air Force. With these windshield wiper inadequacies in mind, Mr. Ohlhausen invented RAIN-X and received a chemical patent in 1972.

Enclosed please find literature outlining the many benefits, applications and properties of this unique material.

In order that you may personally test and evaluate RAIN-X performance, we have forwarded a small supply to you today via U.P.S.

We trust that RAIN-X will increase your affection for rainy days, while increasing

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your driving safety, comfort and visibility.

(Emphasis added).

During the April 17, 1988 broadcast of "60 Minutes," Rooney commented on "junk" he had received in the mail. Rooney's entire segment consisted of the following:

MIKE WALLACE : You think you get junk mail? How would you like to be Andy Rooney? Or, even worse, how would you like to be Andy Rooney's mailman?

ANDY ROONEY : People send me things. I get an awful lot of junk that I don't want that just seems too interesting to throw away. Some people send me stuff because they're friendly. Others, of course, send it because they're looking for a plug on the air.

I get a lot of caps, and a lot of cups. This is a cup from the ship Guam that I spent some time on off Beirut. Captain Quarterman sent me this; I like it. This is a musical cup. I don't like that much.

I get a lot of music sent me. People send me songs they've written on tape, which I don't listen to. This is a piece of sheet music. It's from a prisoner in Florida, and the song is called "Lady Liberty, Oh How I Love Thee." He's in prison for murder, so he's going to be there a long time without liberty.

Hamilton Watch sent me this expensive watch. It's not really proper for me to keep something like this, and I should send it back.

I get pictures of myself. Here's a picture of me at a party with John Chancellor. You probably didn't know I traveled in those circles.

Here's the sort of thing I get a lot of. I don't know why they sent me this. It's a piece of a door. I guess they were pushing some new kind of material.

Here's something for the windshield of your car called Rain-X. The fellow who makes this sent me a whole case of it. He's very proud of it. I actually spent an hour one Saturday putting it on the windshield of my car. I suppose he'd like a commercial or a testimonial. You know how they hold the product up like this? It didn't work.

And then I get books. Holy mackerel, do I get books. Mostly from publishers, but I get a lot from authors, too. They send me their manuscripts. They want me to read them.

Look at this. Several people have sent me this over the years. The illustrator ripped off a picture of me. I suppose I could have sued him, but I was busy that day.

This is the most repulsive thing anyone sent me. It's from some anti-cigarette group. It's an ashtray in the shape of a human lung.

Someone suggested I could neaten up my office with these giant paper clips. Sort of a good idea.

This is one of the best things I ever got. It's a orange peeler. It's changed my life. Simple enough, made by some company in Tulon, Illinois. I have an orange almost every morning of my life, and I love peeling it this way. It really is magic. You can amaze your friends with this. Look at that. There. Presto!

People are very nice. But would you do me two little favors? One, don't send me anything more. And two, don't ask me to send any of this to you.

Several viewers wrote to Rooney after the broadcast, stating that Rain-X is a good product and that "it works." Although the mail Rooney received was unanimous in praising Rain-X, Unelko had previously received several letters complaining that "[Y]our product simply doesn't work"; "I found the product did not perform as advertised"; and "This product did not work for me."

On May 4, 1988, Unelko filed an action based on the April 17 "60 Minutes" broadcast for defamation, product disparagement, and tortious interference with business relationships. On May 8, 1988, Rooney made the following statements during his segment of "60 Minutes":

BRADLEY : You want to talk money? Big money? Talk to Andy Rooney.

ANDY ROONEY : Tonight I feel like a rich man. Along with CBS, I'm being

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sued for $16 million. I hope they take American Express. You may recall that three weeks ago I talked about things people have sent me. One of the items was this product, called Rain-X, made by the Unelko Corporation of Scottsdale, Arizona. The tag on this three and a half ounce bottle says that it lists for $6.59, sells for $3.70.

"Dramatically improves wet weather visibility, even without wipers. Repels rain, sleet and snow. Makes frost, bugs, mud and grime easy to remove."

Well, I said I tried it and it didn't work for me. No matter what you say on 60 Minutes, you get a reaction. The clock was still ticking when I got a call from a fellow at a local boatyard in our town, saying he'd come right over and show me how to use Rain-X.

Then we got letters saying it was a good product. David Fryer of Silver Spring, Maryland, says "Granted, the product is not easy to apply correctly, but once it is applied, it performs absolutely everything its manufacturer claims for it." John Wadsworth of Greensburg, Pennsylvania, says it works "if you use just water and not window cleaner in your windshield sprayer." Robert DeLay of Ettawa, Tennessee, says, "If I were Rain-X, I'd sue you." June Willis of Houston says, "I think you owe the inventor, Howard Olhausen, an apology." Well, I'll tell you, June, he'd have a lot easier time getting an apology out of me than $16 million. Jim Mills, Automotive News western sales manager, says, "Your comments about Rain-X were very unfair."

Several letters said that Rain-X works best when you're going fast, and maybe that was my trouble. I called American Airlines trying to find out what they think of Rain-X, and I called several automobile manufacturers, to see what they say about it, but I didn't get any help here because they don't use it, and I haven't been able to find out what Rain-X is made of.

So that's my problem tonight, friends. This fellow sent me this product to evaluate, and I did. Was I only expected to comment on it if I loved it? What if he'd sent me two tickets to a movie he'd made, and I didn't like the plot? He must know I don't do commercials. But, in spite of all that, to tell you the truth, I feel sort of bad about the whole thing. Please don't send money unless I ask for it.

Unelko subsequently requested and obtained leave to amend its complaint to assert additional claims for relief stemming from the May 8 broadcast.

Rooney moved for summary judgment on December 5, 1988. On April 25, 1989, the district court granted the motion. Unelko timely appeals.

DISCUSSION

I. Defamation Claim

Unelko claims that the district court's grant of summary judgment on its defamation claim was improper. We review a grant of summary judgment de novo. Dworkin v. Hustler Magazine Inc., 867 F.2d 1188, 1192 (9th Cir.), cert. denied, --- U.S. ----, 110 S.Ct. 59, 107 L.Ed.2d 26 (1989). The district court granted summary judgment because it determined that none of Rooney's words were defamatory statements of fact. The court found that (1) Rooney's statement that Rain-X "didn't work" was protected opinion, and (2) Unelko failed to create a triable issue of fact as to the falsity of any of Rooney's statements that could be viewed as defamatory.

A. The District Court's Ruling That "It Didn't Work" Was "Opinion"

Relying on a significant body of Ninth Circuit case law, the...

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