Bindrim v. Mitchell
| Decision Date | 18 April 1979 |
| Citation | 155 Cal.Rptr. 29,92 Cal.App.3d 61 |
| Court | California Court of Appeals |
| Parties | , 5 Media L. Rep. 1113 Paul BINDRIM, Plaintiff, Respondent and Cross-Appellant, v. Gwen Davis MITCHELL et al., Defendants, Appellants and Cross-Defendants. Civ. 52133. |
Lillick, McHose & Charles, Anthony Liebig and Kathleen Hallberg, Los Angeles, for defendant, appellant and cross-defendant Mitchell.
Satterlee & Stephens, Robert M. Callagy, Katherine J. Trager, New York City, Lillick, McHose & Charles, Anthony Liebig and Kathleen Hallberg, Los Angeles, for defendant, appellant and cross-defendant Doubleday.
Slaff, Mosk & Rudman, George Slaff and Marc R. Stein, Los Angeles, for plaintiff, respondent and cross-appellant.
This is an appeal taken by Doubleday and Gwen Davis Mitchell from a judgment for damages in favor of plaintiff-respondent Paul Bindrim, Ph.D. The jury returned verdicts on the libel counts against Doubleday and Mitchell and on the contract count against Mitchell.
The court denied defendants' motion for judgment NOV and granted a new trial subject to the condition that new trial would be denied if plaintiff would consent to (1) a reduction of the libel verdict against Mitchell from $38,000 to $25,000; (2) a striking of the $25,000 punitive damage award against Doubleday on the libel count; and (3) a striking of the $12,000 damage award on the contract count against Mitchell.
Plaintiff consented without prejudice on these issues in any appeal to be taken from the judgment. Defendants appealed and plaintiff cross-appealed from the judgment reducing the original jury verdict.
Plaintiff is a licensed clinical psychologist and defendant is an author. Plaintiff used the so-called "Nude Marathon" in group therapy as a means of helping people to shed their psychological inhibitions with the removal of their clothes.
Defendant Mitchell had written a successful best seller in 1969 and had set out to write a novel about women of the leisure class. Mitchell attempted to register in plaintiff's nude therapy but he told her he would not permit her to do so if she was going to write about it in a novel. Plaintiff said she was attending the marathon solely for therapeutic reasons and had no intention of writing about the nude marathon. Plaintiff brought to Mitchell's attention paragraph B of the written contract which reads as follows:
Mitchell reassured plaintiff again she would not write about the session, she paid her money and the next day she executed the agreement and attended the nude marathon.
Mitchell entered into a contract with Doubleday two months later and was to receive $150,000 advance royalties for her novel.
Mitchell met Eleanor Hoover for lunch and said she was worried because she had signed a contract and painted a devastating portrait of Bindrim.
Mitchell told Doubleday executive McCormick that she had attended a marathon session and it was quite a psychological jolt. The novel was published under the name "Touching" and it depicted a nude encounter session in Southern California led by "Dr. Simon Herford."
Plaintiff first saw the book after its publication and his attorneys sent letters to Doubleday and Mitchell. Nine months later the New American Library published the book in paperback.
The parallel between the actual nude marathon sessions and the sessions in the book "Touching" was shown to the jury by means of the tape recordings Bindrim had taken of the actual sessions. Plaintiff complains in particular about a portrayed session in which he tried to encourage a minister to get his wife to attend the nude marathon. Plaintiff alleges he was libeled by the passage below:
Page Excerpts from "Touching" Transcript of Actual Session
------ ------------------------------ ---------------------------------------
126-27 The minister was telling "I've come a little way,"
us how the experience had "I'd like to know about your
gotten him further back to wife. She hasn't been to a
God, marathon?"
And all the time he was "No."
getting closer to God, he "Isn't interested? Has no need?"
was being moved further away "I don't-she did finally say
from his wife, who that she would like to go to a
didn't understand, she standard sensitivity training
didn't understand at all. session somewhere. She
She didn't realize
126-12
what was coming out of the would be-I can't imagine her in a
sensitivity training nude marathon. She can't imagine
sessions he was conducting it."
in the church. "Why?"
he felt, he "Neither could I when I first
more than felt, he knew, came." "Yeh. She might. I don't
that if she didn't begin know."
coming to the nude marathons "It certainly would be a good idea
and try to grasp what it was for two reasons: one, the minor one
all about, the marriage is that you are involved here, and if
would be over. she were in the same thing, and you
"You better bring her to the could come to some of the couple
next marathon," Simon said. ones, it would be helpful to you. But
more than that, almost a definite
"I've been trying," said the recipe for breaking up a marriage is
minister. "I only pray she for one person to go into growth
comes." groups and sense change and grow .
."
"You better do more than "I know that."
pray," said Simon. "You
better grab her by the cunt
and drag her here."
"I can only try." "Boy they sure don't want that
"You can do more than try, and once they're clear they don't
Alex. You can grab her by need that mate anymore, and they are
the cunt, not very patient."
"A man with that kind of
power, whether it comes from "But it is true, the more I get open
God or from his own manly the more the walls are built between
strength, strength he us. And it's becoming a fairly
doesn't know he has, can intelligent place, a fairly open
drag his wife here by the place, doing moderate sensitivity
fucking cunt." eyeballing stuff with the kids
"I know," Alex said softly, I use some of these techniques
"I know." teaching out class work."
"Becoming more involved?"
"Yeh, involved at the same time that
I am more separated from. It's a
paradox again, isn't it?"
"Mmm."
Plaintiff asserts that he was libeled by the suggestion that he used obscene language which he did not in fact use. Plaintiff also alleges various other libels due to Mitchell's inaccurate portrayal of what actually happened at the marathon. Plaintiff alleges that he was injured in his profession and expert testimony was introduced showing that Mitchell's portrayal of plaintiff was injurious and that plaintiff was identified by certain colleagues as the character in the book, Simon Herford.
Defendants first allege that they were entitled to judgment on the ground that there was no showing of "actual malice" by defendants. As a public figure, 1 plaintiff is precluded from recovering damages for a defamatory falsehood relating to him, unless he proved that the statement was made with "actual malice," that is, that it was made with knowledge that it is false or with reckless disregard of whether it was false or not. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280, 84 S.Ct. 710, 11 L.Ed.2d 686.) The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. (St. Amant v. Thompson (1968) 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262.) Thus, what constitutes actual malice focuses on defendants' attitude toward the truth or falsity of the material published and reckless disregard of the truth or falsity cannot be fully encompassed by one infallible definition but its outer limits must be marked by a case-by-case adjudication. (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 434, 142 Cal.Rptr. 304.)
Evidence establishing a reckless disregard for the truth must be clear and convincing evidence, and proof by a preponderance of evidence is insufficient. (New York Times Co. v. Sullivan (1964) Supra, 376 U.S. 254, at pp. 285-286, 84 S.Ct. 710.) Whether or not there was such malice is a question of fact to be determined by the trier of fact. (Widener v. Pacific Gas & Electric Co. (1977) Supra, 75 Cal.App.3d 415, 142 Cal.Rptr. 304.) However, the reviewing court is required to review the evidence in a libel action by a public figure, to be sure that the principles were...
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