Blatty v. New York Times Co.

• Decision Date: 29 December 1986
• Citation: 728 P.2d 1177,42 Cal.3d 1033,232 Cal.Rptr. 542
• Court: California Supreme Court
• Parties: , 728 P.2d 1177, 55 USLW 2360, 13 Media L. Rep. 1928 William Peter BLATTY, Plaintiff and Appellant, v. NEW YORK TIMES COMPANY, Defendant and Respondent. L.A. 32173.

Page 542

232 Cal.Rptr. 542

42 Cal.3d 1033, 728 P.2d 1177, 55 USLW 2360,

13 Media L. Rep. 1928

William Peter BLATTY, Plaintiff and Appellant, v. NEW YORK TIMES COMPANY, Defendant and Respondent.

L.A. 32173.

Supreme Court of California,

In Bank.

Dec. 29, 1986.

Rehearing Denied Feb. 26, 1987.

Richard M. Coleman, John P. Tannell and Coleman & Farrell, Los Angeles, for plaintiff and appellant.

McCutchen, Doyle, Brown & Enersen, Palmer Brown Madden and Lynne M. Yerkes, Walnut Creek, as amici curiae on behalf of plaintiff and appellant.

Gibson, Dunn & Crutcher, Richard P. Levy, Gail E. Lees, William C. Foutz, Los Angeles, and David A. Thurm, New York City, for defendant and respondent.

Edward J. McIntyre, John Allcock, Laura Whitcomb Halgren, Gray, Cary, Ames & Frye, San Diego, and Harold W. Fuson, Jr., Los Angeles, as amici curiae on behalf of defendant and respondent.

MOSK, Justice.

The fundamental question in this case is whether a newspaper can be held liable for failing to include a book in its list of "best sellers." As we shall explain, we conclude that the answer is no.

I

Plaintiff William Peter Blatty brought this action for damages against defendant New York Times Company, publisher of the New York Times. Four causes of action are asserted in the original complaint: negligent interference with prospective economic advantage, intentional interference with prospective economic advantage, negligence, and trade libel.

The allegations underlying each of these causes of action may be summarized as follows: Blatty is the author of a number of works of fiction including The Exorcist and a recently published hardback novel entitled Legion; the Times publishes a weekly list "purporting to rank best selling books ... based on actual sales"; because many new books are published each year, authors whose hardback books appear on this list benefit by greater sales of the books themselves and an increased value of paperback and film rights; although the list purports to rank books on the basis of sales and expresses no opinion on their merits, because of the reputation of the Times and its perceived expertise in literary matters the list has a substantial positive influence on the ordering and promotion of books by booksellers and on the purchase of books by consumers; the Times knew or should have known of this influence; Legion, authored by Blatty and published by Simon & Schuster, sold more than enough copies, and met all other criteria, to merit inclusion on the list; the Times, however, failed to include Legion as a result, Blatty suffered injury by loss of the benefits that inclusion would have brought. With respect to the intentional-interference claim it is also alleged that Simon & Schuster provided the Times with information to the effect that Legion had sold more than enough copies to merit inclusion, but that the Times nevertheless refused to include the book.

Although they bear different labels, the four causes of action each have as their gravamen the alleged injurious falsehood of a statement--viz., the Times falsely represented that the list was based on actual sales; by failing to include Legion, the Times falsely represented that the novel did not meet its stated criteria for inclusion; by these misrepresentations, the Times adversely affected the volume of sales of the hardback edition and consequently the value of the paperback and film rights, thereby subjecting Blatty to injury.

Before the Times responded to the complaint, Blatty filed a notice to take certain depositions and produce certain documents. Thereupon the Times generally demurred on the following ground, among others: "The Complaint as a whole fails to state facts sufficient to constitute a cause of action against the Times in that ... the complained of 'Best Seller' list is not of and concerning plaintiff and therefore cannot constitutionally provide a basis for liability upon a media defendant...." In its memorandum of points and authorities the Times properly requested that the court take compulsory judicial notice, pursuant to Evidence Code sections 452 and 453, of a copy of one week's list which bore the following legend: "The listings above are based on computer-processed sales figures from about 2,000 bookstores in every region of the United States."

Blatty moved to compel discovery, asserting his right to do so despite the pendency of the demurrer. In support he submitted a declaration incorporating by reference an attached newspaper article which he alleged showed the relevance of the proposed discovery. Led by the article to question the truth of Blatty's allegation that the Times refused to include Legion on the list despite its receipt of sales information from Simon & Schuster, the court declined to rule on the demurrer until it could determine whether the allegation was supported by admissible evidence. Over Blatty's objection, the court then issued an order directing the parties to depose certain employees of Simon & Schuster and the Times with regard to the alleged communication and to that matter alone, and the parties did so. Also over Blatty's objection, the court prohibited further discovery until the legal sufficiency of his complaint appeared.

Taking judicial notice of what it considered to be the "uncontradicted facts adduced at the depositions" to the effect that "at no time did [Simon & Schuster] disclose to [the Times] the actual figures of sales of the book," the court made the following ruling, as subsequently clarified, on the demurrer. As to the intentional-interference claim, the court sustained the demurrer but granted leave to amend "to allege in good faith facts to establish (1) that the New York Times violated its public duty or trust to sell or distribute its newspaper to the public containing a fair and honest report of all news without bias or prejudice; and (2) ... that the New York Times had in its possession reports of the actual sales of the book, Legion, which would qualify it for inclusion on the Best Seller List, and deliberately refrained from listing plaintiff's book." As to this cause of action the court ruled that "if the new facts to be alleged also are sufficient to support other causes of action, the complaint may so allege," and that Blatty was "limit[ed] ... to a cause of action for an intentional omission of Legion from the 'Best Seller List' by the New York Times despite its knowledge that the sales of the book to the public qualified it for inclusion on the List." As to Blatty's other claims, the court sustained the demurrer "on all grounds stated therein without leave to amend."

In his amended complaint Blatty added Doe defendants and asserted five causes of action: intentional interference with prospective economic advantage based on the Times publication of the list in the newspaper; intentional interference with prospective economic advantage based on the Times marketing of the list separate and apart from its newspaper publication; unfair competition in violation of Business and Professions Code sections 17200 to 17208; false and misleading advertising in violation of Business and Professions Code sections 17500 to 17508; and "breach of [the] public duty and trust to report the news fairly and honestly without bias or prejudice."

The allegations underlying each of these causes of action are essentially those stated in the original complaint with the following relevant modifications and additions: the Times falsely "represented ... that the List was an objective, unbiased and accurate compilation of actual sales of books each week by 2000 bookstores in every region of the United States"; and Simon & Schuster told the Times that it had sales figures to substantiate its claim that Legion merited inclusion, but the Times failed and refused to review the figures.

Once again, although they bear different labels the five causes of action each have as their gravamen the alleged injurious falsehood of a statement--viz., the Times falsely represented that the list was an accurate compilation of actual book sales; by failing to include Legion, the Times falsely represented that the novel did not meet its stated criteria for inclusion; and by so doing the Times caused Blatty to be harmed.

The Times again generally demurred on the ground, among others, that the complaint was "barred by the First Amendment to the United States Constitution and by Article I, Section 2 of the California Constitution, in that those provisions ... forbid the imposition of liability where, as here, no statement has been made 'of and concerning' the plaintiff...." In its memorandum of points and authorities the Times again effectively made a proper request that the court take compulsory judicial notice of a copy of one week's list and the legend it bore.

The court sustained the demurrer without leave to amend "on grounds stated in the moving papers," ordered the action dismissed, awarded costs to the Times, and entered judgment accordingly. After judgment Blatty moved to tax costs, and the court denied the motion.

Thereupon Blatty filed timely notices of appeal from the judgment of dismissal and the order denying his motion to tax costs. On his motion the Court of Appeal ordered the appeals consolidated.

On appeal, Blatty contended that both the original and the amended complaints stated causes of action, and that in the proceedings on the demurrer to the original complaint the court erred in ordering and taking judicial notice of the depositions and in restricting discovery to those limited depositions. He also contended that the court erred in denying his motion to tax costs.

Relying on our decision in Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 209, 197 Cal.Rptr. 783, 673 P.2d 660, in which we held that "Although ordinarily an appellate court will not consider the allegations of a superseded complaint [citation], that rule does not apply...