Aisenson v. American Broadcasting Co.

• Decision Date: 10 May 1990
• Docket Number: No. B034145,B034145
• Citation: 220 Cal.App.3d 146,269 Cal.Rptr. 379
• Court: California Court of Appeals Court of Appeals
• Parties: , 17 Media L. Rep. 1881 David J. AISENSON, Plaintiff and Appellant, v. AMERICAN BROADCASTING COMPANY, INC., et al., Defendants and Respondents.

Page 379

269 Cal.Rptr. 379

220 Cal.App.3d 146, 17 Media L. Rep. 1881

David J. AISENSON, Plaintiff and Appellant, v. AMERICAN BROADCASTING COMPANY, INC., et al., Defendants and Respondents.

No. B034145.

Court of Appeal, Second District, Division 5, California.

May 10, 1990.

Selwyn, Capalbo, Lowenthal & Schacter and Herbert E. Selwyn, Los Angeles, for plaintiff and appellant.

Christensen, White, Miller, Fink & Jacobs, Andrew M. White and Joseph R. Taylor, Los Angeles, for defendants and respondents.

BOREN, Associate Justice.

In 1984, appellant David Aisenson filed a lawsuit for slander and invasion of privacy against respondents American Broadcasting Company, Inc., its Los Angeles affiliate KABC-TV, and four KABC-TV employees (collectively, "ABC"). The lawsuit arose from ABC's broadcast of a series of television news special reports discussing the results of an opinion poll it had conducted. The poll elicited local attorneys' opinions on the performance of Los Angeles Superior Court criminal law judges. ¹ ABC reported that appellant, then a superior court judge, had received the lowest ratings of all the judges in the poll.

Appellant alleged that the comments aired on KABC-TV falsely implied that he was an incompetent judge and a "bad guy," that he refused to be interviewed, and that he attempted to suppress the broadcast of ABC's report. These comments, in their entirety, are as follows ²:

Broadcast of October 25, 1983: "... The man stepping out of his home is His Honor Judge David Aisenson, the lowest ranking judge of them all. On a one to ten scale, Judge David Aisenson got an overall average score in the four's. Judge Aisenson refused to show himself to you in an interview about the survey, and refused to allow a tv camera into his courtroom. We thought you should at least see his face. Judge Aisenson, in effect, followed the lead of the judge who scored the lowest on KABC's survey six years ago...."

Broadcast of October 27, 1983: "... Judge David Aisenson came out with the lowest score of all the judges included in the survey, an overall average score on the 10 point scale of 4.4. When lawyers were asked whether Judge Aisenson knows the law, the answer, 4.2. They gave him the lowest score overall for his sentencing habits, and the lowest score overall for his behavior on the bench. Unfortunately, we can't show you Judge David Aisenson's behavior on the bench. He won't let a television camera in his courtroom, and he won't submit to a television interview about his score as the lowest ranking judge of all those in the 1983 survey.

"Incidentally, Judge David Aisenson is one of those few judges who wasn't put in his job by a governor. He simply ran for judge and was elected...."

"... And please take a moment to note the names of those other judges who came out relatively low on the survey and refused to let you see and hear them on tv. Judge David Aisenson, the lowest scoring judge of them all...."

Broadcast of November 1, 1983: "... Incidentally, the judge with the lowest score for knowing the law is the same one In addition to making the above-quoted statements about appellant, ABC also videotaped appellant as he walked from his home to his car in a manner which, appellant alleged, "[made] it appear as if [he] were a criminal or the subject of some ongoing criminal investigation." Appellant claims that ABC's statements and the videotape, individually and as a whole, are slanderous per se because they suggest that he is dishonest, immoral or otherwise unfit for his profession (Civ.Code, §§ 45, 45a and 46), and that the unauthorized videotaping constituted an invasion of privacy.

who has the lowest score in most categories. Judge David Aisenson...."

In 1987, ABC filed the motion at issue in this appeal, contending that it was entitled to judgment as a matter of law because its publication of the results of the poll was fully protected by the state and federal constitutions. With regard to appellant's causes of action for libel and slander, ABC argued, among other things, that its statements about appellant were not defamatory, that they constituted protected opinion, and that they were made without malice. ABC asserted that these same factors barred appellant's causes of action for invasion of privacy and, moreover, that its videotape of the plaintiff was true, unaltered, and not offensive to a reasonable person; that the act of videotaping appellant from a public street was a protected news gathering activity; and that no invasion of privacy occurred even in the absence of a constitutional protection.

The trial court granted ABC's motion for summary judgment and dismissed appellant's complaint. This appeal follows.

DISCUSSION

1. Standard of Review

Appellant asserts that summary judgment is a disfavored remedy which places the burden of proof on the moving party. That is the usual rule, but it does not apply here. The courts have determined that because protracted litigation would have a chilling effect on First Amendment rights, speedy resolution of defamation and invasion of privacy cases is desirable, and summary judgment is a favored remedy. Moreover, even where the defendant is the moving party, the burden lies on the plaintiff opposing the motion to affirmatively establish by clear and convincing evidence that a genuine issue of fact exists as to whether actual malice can be proven at trial. (Anderson v. Liberty Lobby, Inc. (1986) 477 U.S. 242, 255-256, 106 S.Ct. 2505, 2513-2514, 91 L.Ed.2d 202; Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 268-269, 228 Cal.Rptr. 206, 721 P.2d 87; Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 251-252, 208 Cal.Rptr. 137, 690 P.2d 610; Miller v. Nestande (1987) 192 Cal.App.3d 191, 196-197, 237 Cal.Rptr. 359; Wasser v. San Diego Union (1987) 191 Cal.App.3d 1455, 1461, 236 Cal.Rptr. 772.)

2. Causes of Action for Defamation

a. There is no evidence that false statements of fact were aired.

Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for application of the safeguards afforded by the First Amendment. (Ocala Star-Banner Co. v. Damron (1971) 401 U.S. 295, 300, 91 S.Ct. 628, 631, 28 L.Ed.2d 57.) "When the speech is of public concern and the plaintiff is a public official or public figure, the Constitution clearly requires the plaintiff to surmount a much higher barrier before recovering damages from a media defendant than is raised by the common law." (Philadelphia Newspapers, Inc. v. Hepps (1986) 475 U.S. 767, 775, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783.) Accordingly, a public official may not recover damages for a published statement touching upon his fitness for office unless he proves, first, that the defendant made a false statement of fact and, second, that the defendant either knew the statement was false or recklessly disregarded whether it was false or not. (Id. at p. 776, 106 S.Ct. at p. 1563; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d Appellant, as a Los Angeles Superior Court judge, was subject to the constitutional limitations on defamation suits by public officials. (Garrison v. Louisiana (1964) 379 U.S. 64, 76-77, 85 S.Ct. 209, 216-217, 13 L.Ed.2d 125; Simonson v. United Press Intern., Inc. (7th Cir.1981) 654 F.2d 478, 481; Grillo v. Smith (1983) 144 Cal.App.3d 868, 872-873, 193 Cal.Rptr. 414.) He does not deny that these limitations apply to him, but contends that respondents' statements exceeded the boundaries of constitutionally protected speech.

686; Monitor Patriot Co. v. Roy (1971) 401 U.S. 265, 273-274, 91 S.Ct. 621, 626-627, 28 L.Ed.2d 35.)

The expression by a media defendant of opinion or severe criticism is not defamatory, even though it adversely reflects on the fitness of an individual for public office. (Yorty v. Chandler (1970) 13 Cal.App.3d 467, 472-473, 91 Cal.Rptr. 709.) "An individual who seeks or accepts public office invites and challenges public criticism so far as it may relate to his fitness and qualifications.... The right of criticism rests upon public policy and those who seek office should not be supersensitive or too thin-skinned concerning criticism of their qualifications.... In so far as the articles might imply that in the opinion of defendant, plaintiff was unfitted for the office he was seeking to be returned to, no complaint can be made, for defendant had the right to express his opinion in this respect." (Eva v. Smith (1928) 89 Cal.App. 324, 328-330, 264 P. 803.)

The poll in this case reflected the opinions of the attorneys who participated in it, and those opinions are protected regardless of whether they are well founded or utterly wrong. (Botos v. Los Angeles County Bar Assn. (1984) 151 Cal.App.3d 1083, 1089, 199 Cal.Rptr. 236.) The newscast itself, on the other hand, did not on its face reflect ABC's opinion about the judges in the criminal division; rather, ABC presented the opinions of the attorneys as facts and not as editorial comment or criticism. (Grillo v. Smith, supra, 144 Cal.App.3d 868, 874-875, 193 Cal.Rptr. 414.) Merely making unflattering factual statements about someone, without more, does not give rise to a cause of action for defamation. For these factual statements to be actionable, there must be some proof not only that they tended to impute a lack of professional ability, but also that the objected-to statements were false; obviously, a true statement of fact is not defamatory. (Civ.Code, § 46; Philadelphia Newspapers, Inc. v. Hepps, supra, 475 U.S. 767, 775, 106 S.Ct. 1558, 1563; Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600, 131 Cal.Rptr. 641, 552 P.2d 425.)

In this case, there is no evidence that respondents aired false statements of fact. ABC delivered 1,500 ballots to the presidents of three bar associations--the Los Angeles Public Defenders' Association, the Los Angeles Deputy ...