Anderson v. Hearst Pub. Co.

• Decision Date: 20 April 1954
• Docket Number: No. 16075-C.,16075-C.
• Citation: 120 F. Supp. 850
• Court: U.S. District Court — Southern District of California
• Parties: ANDERSON v. HEARST PUB. CO., Inc. et al.

120 F. Supp. 850

ANDERSON v. HEARST PUB. CO., Inc. et al.

No. 16075-C.

United States District Court S. D. California, Central Division.

April 20, 1954.

Keatinge, Arnold & Zack, George L. Arnold, Los Angeles, Cal., for plaintiff.

Lawler, Felix & Hall, A. Laurence Mitchell, John M. Hall, Los Angeles, Cal., for defendant, Hearst Pub. Co. Inc.

JAMES M. CARTER, District Judge.

The plaintiff brought this action for libel against the Hearst Publishing Company Inc., and Westbrook Pegler. No service has been made on Pegler, but the Hearst Publishing Company Inc., hereafter called the defendant, moved to dismiss for failure to state a claim. The case is here on the basis of diversity of citizenship.

I.

The Demand for Retraction.

The alleged libel was a lengthy article, three columns by ten inches. Contained therein were eight references to the plaintiff. The plaintiff demanded a retraction of "certain statements regarding me which are untrue, libelous and damaging." The defendant filed no retraction. Defendant contends that since no special damages have been pleaded, and since plaintiff's demands for retraction did not comply with Section 48a of the Civil Code of the State of California, he therefore cannot recover general or exemplary damages and hence the motion to dismiss should be granted.

Section 48a(1) of the Civil Code of the State of California provides that in an action against a newspaper for libel, the plaintiff shall recover no more than special damages unless a demand for a correction has been made and such correction is not made by the publisher of the newspaper. The section states in part, "plaintiff shall serve upon the publisher * * * a written notice specifying the statements claimed to be libelous and demanding that the same be corrected", within twenty days after knowledge of the publication. Emphasis added. The full text of the pertinent part of section is set forth in the margin.¹

The first amended complaint alleges publication on November 24, 1952. It alleges demands for retraction on November 28 and December 3, 1952, and sets forth copies of the demands. Each of the demands stated:

"Your issue of November 24th, 1952, carried, under the by-line of Westbrook Pegler, certain statements regarding me which are untrue, libelous and damaging * *", and demanded appropriate retraction.

Section 48a Civil Code defines "special damages" as,

"* * * damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other * * *."

No special damages were pleaded in the first amended complaint. It seeks general damages coming within the definition in Section 48a, as "damages for loss of reputation, shame, mortification and hurt feelings". It also seeks exemplary damages.

"When special damage is claimed, the nature of the special loss or injury must be particularly set forth * * *" and "it is necessary that the declaration should set forth precisely in what way the special damage resulted. * * *" Pollard v. Lyon, 1875, 91 U. S. 225, 237, 23 L.Ed. 308. In California it is well settled that the specific facts which are said to give rise to special damages must be pleaded. Peabody v. Barham, 1942, 52 Cal.App.2d 581, 585, 126 P.2d 668. XII California Law Review 225 (and cases cited at page 239, et seq.); see, 8 Cal.Juris. page 890.

Section 48a, Civil Code has been before the California courts and has been held constitutional. Werner v. Southern California etc. Newspapers, 1950, 35 Cal.2d 121, 216 P.2d 825, 13 A. L.R.2d 252; Pridonoff v. Balokovich, 1951, 36 Cal.2d 788, 228 P.2d 6; Jefferson v. Chronicle Publishing Co., 1952, 108 Cal.App.2d 538, 238 P.2d 1018, 241 P.2d 20, appeal to the U. S. Supreme Court dismissed for want of a substantial federal question, 344 U.S. 803, 73 S.Ct. 18, 97 L.Ed. 626, and 344 U.S. 882, 73 S.Ct. 164, 97 L.Ed. 683.

From the foregoing it appears that unless the demands made by the plaintiff upon the publisher, amount to a demand for a correction as provided in Section 48a, Civil Code, plaintiff has stated no case and the action should be dismissed.

The word "certain" is defined in Webster's International Dictionary, Second Edition, in several ways: (1) fixed or stated; precise, exact; (2) one or some among possible others. As used in the demand for retraction, the words "certain statements" were used by the plaintiff with the latter meaning. See Wilhite v. Armstrong, 328 Mo. 1064, 43 S.W.2d 422, 423.

The plaintiff contends that since there is no law in California on the subject,² and since the California statute was patterned after the Minnesota statute, that Uhlman v. Farm Stock & Home Company, 126 Minn. 239, 148 N.W. 102, 103, controls. But in that case the alleged libel was a short one and the demand for retraction specifically stated, "that the article published by you * * was and is libelous * * *." Thus, the plaintiff there claimed that the entire statement was libelous.

We cannot disregard the plain language of the California statute, Section 48a, Civil Code, that the plaintiff shall serve "a written notice specifying the statements claimed to be libelous". Emphasis added. Plaintiff did not do this.

Accordingly, we hold that no demand for a correction complying with the California statute was served upon the publisher and that therefore plaintiff cannot recover general or exemplary damages. Since he has not pleaded special damages, he has not by his present pleadings stated a claim for relief.

II.

Publications Outside California.

The first amended complaint alleges that the defendant prints, publishes and circulates the Los Angeles Examiner, a daily paper in which the alleged libel appears, throughout the county of Los Angeles. No circulation or publication elsewhere is alleged.

Plaintiff now moves to amend in order to show publication by the Los Angeles Examiner in other states than California, and particularly in Washington, Oregon and Nevada, such other states having, so plaintiff contends, no laws requiring a demand for retraction. Such an amendment, plaintiff contends, would permit him to pursue in this court his cause of action, if any, arising from the publications in such other states.

"* * * a federal court adjudicating a state-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State." Guaranty Trust Co. v. York, 1945, 326 U.S. 99, 108, 65 S.Ct. 1464, 1469, 89 L.Ed. 2079, and it must follow the laws of the state in which it sits. Erie R. Co. v. Tompkins, 1938, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188.

Assuming that the proposed amendment would show publication in other states, whose laws would permit a recovery on the facts of this case, we then have a conflict of laws between the law of the State of California and the law of those other states.

As part of the Erie R. Co. v. Tompkins doctrine, the federal court sitting in California in a diversity of citizenship case must follow the conflict of laws rule applied by California courts. Klaxon Co. v. Stentor Elec. Mfg. Co., 1941, 313 U.S. 487, 61 S.Ct. 1020, 85 L. Ed. 1477. There the Supreme Court held, 313 U.S. at page 496, 61 S.Ct. at page 1021:

"* * * We are of opinion that the prohibition declared in Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, against such independent determinations by the federal courts extends to the field of conflict of laws. The conflict of laws rules to be applied by the federal court in Delaware must conform to those prevailing in Delaware's state courts. Otherwise, the accident of diversity of citizenship would constantly disturb equal administration of justice in coordinate state and federal courts sitting side by side. * * *"

To the same effect is Griffin v. McCoach, 1941, 313 U.S. 498, 503, 61 S.Ct. 1023, 85 L.Ed. 1481; 9 Cir., 1941, 123 F.2d 403, 406, holding that "in diversity of citizenship cases, the federal courts must follow the conflict of laws rules prevailing in the States in which they sit"; and Wallan v. Rankin, 9 Cir., 1949, 173 F.2d 488, 490.

In Tademy v. Scott, 5 Cir., 1946, 157 F.2d 826, 827, a libel case with jurisdiction based on diversity of citizenship, the court held that a Georgia statute providing for at least five days notice before instituting such action, specifying the article and the statements which the plaintiff claimed to be false, "fixes and declares the policy of the State of Georgia in actions such as this, and it is clear that had this case been brought in the state court it would have been held to be prematurely brought."

Restatement, Conflict of Laws § 384 recognizes the general rule in torts. "Recognition of a foreign cause of action. (1) If a cause of action is created at the place of wrong, a cause of action will be recognized in other states." § 612 of the Restatement (supra) states one exception. "Action contrary to public policy. No action can be maintained upon a cause of action created in another state, the enforcement of which is contrary to the strong public policy of the forum." The "comment" following § 612 (supra) points out that "A mere difference between the laws of the two states will not render the enforcement of a cause of action created in one state contrary to the public policy of the other."

"In California, conformably with the general rule, it is held that an action in tort is governed by the law of the jurisdiction where the tort was committed, and the action being transitory it may be maintained in any jurisdiction where the defendant is found. * * * The local courts will enforce the foreign law if not contrary to the public policy of the forum, to abstract justice or pure morals, or injurious to the public welfare." Wallan v. Rankin, supra, 173 F. 2d 490.

The California rule is well stated in Schultz v....