Burnett v. National Enquirer, Inc.

• Decision Date: 18 July 1983
• Citation: 193 Cal.Rptr. 206,144 Cal.App.3d 991
• Court: California Court of Appeals Court of Appeals
• Parties: , 49 A.L.R.4th 1125, 9 Media L. Rep. 1921 Carol BURNETT, Plaintiff and Respondent, v. NATIONAL ENQUIRER, INC., Defendant and Appellant. Civ. 66447.

Page 206

193 Cal.Rptr. 206

144 Cal.App.3d 991, 49 A.L.R.4th 1125, 9 Media L. Rep. 1921

Carol BURNETT, Plaintiff and Respondent, v. NATIONAL ENQUIRER, INC., Defendant and Appellant.

Civ. 66447.

Court of Appeal, Second District, Division 2, California.

July 18, 1983.

As Modified Aug. 1, 1983.

Rehearing Denied Aug. 11, 1983.

Hearing Denied Oct. 6, 1983.

Williams & Connolly by John G. Kester, Harold Ungar, Washington, D.C., Selvin & Weiner by Paul P. Selvin, Los Angeles, for defendant and appellant.

Barry B. Langberg, Stephen S. Monroe, Paul S. Ablon, Richard P. Towne, Hayes & Hume, Beverly Hills, for plaintiff and respondent.

Jack C. Landau, Judy D. Lynch, Pierson, Ball & Dowd by J. Laurent Scharff, Washington, D.C., for amici curiae.

ROTH, Presiding Justice.

On March 2, 1976, appellant caused to appear in its weekly publication, the National Enquirer, a "gossip column" headlined "Carol Burnett and Henry K. in Row," wherein a four-sentence item specified in its entirety that:

"In a Washington restaurant, a boisterous Carol Burnett had a loud argument with another diner, Henry Kissinger. Then she traipsed around the place offering everyone a bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a glass of wine over one diner and started giggling instead of apologizing. The guy wasn't amused and 'accidentally' spilled a glass of water over Carol's dress."

Maintaining the item was entirely false and libelous, ¹ an attorney for Ms. Burnett, by telegram the same day and by letter one week later, demanded its correction or retraction "within the time and in the manner provided for in Section 48(a) of the Civil Code of the State of California," failing which suit would be brought by his client [respondent herein], a well known actress, comedienne and show-business personality.

In response to the demand, appellant on April 6, 1976, published the following retraction, again in the National Enquirer's gossip column:

"An item in this column on March 2 erroneously reported that Carol Burnett had an argument with Henry Kissinger at a Washington restaurant and became boisterous, disturbing other guests. We understand these events did not occur and we are sorry for any embarrassment our report may have caused Miss Burnett."

On April 8, 1976, respondent, dissatisfied with this effort in mitigation, filed her complaint for libel in the Los Angeles Superior Court. Trial before a jury resulted in an award to respondent of $300,000 compensatory damages and $1,300,000 punitive damages. The trial court by remittitur thereafter rendered its judgment in respondent's favor for $50,000 compensatory and $750,000 punitive damages. This appeal followed.

As formulated by appellant, apart from two claimed irregularities occurring upon the trial, the principal issues here are whether the National Enquirer is excluded from the protection afforded by Civil Code section 48a, ² and whether the damage award and penalty specified in the judgment can stand.

Prior to addressing the merits of appellant's contentions and in aid of our disposition, we set out the following further facts pertaining to the publication complained of and descriptive of the nature and character of the National Enquirer, which were adequately established in the proceedings below.

On the occasion giving rise to the gossip column item hereinabove quoted, respondent, her husband and three friends were having dinner at the Rive Gauche restaurant in the Georgetown section of Washington, D.C. The date was January 29, 1976. Respondent was in the area as a result of being invited to be a performing guest at the White House. In the course of the dinner, respondent had two or three glasses of wine. She was not inebriated. She engaged in banter with a young couple seated at a table next to hers, who had just become engaged or were otherwise celebrating. When curiosity was expressed about respondent's dessert, apparently a chocolate souffle, respondent saw to it the couple were provided with small amounts of it on plates they had passed to her table for the purpose. Perhaps from having witnessed the gesture, a family behind respondent then offered to exchange some of their baked alaska for a portion of the souffle, and they, too, were similarly accommodated. As respondent was later leaving the restaurant, she was introduced by a friend to Henry Kissinger, who was dining at another table, and after a brief conversation, respondent left with her party.

There was no "row" with Mr. Kissinger, nor any argument between the two, and what conversation they had was not loud or boisterous. Respondent never "traipsed around the place offering everyone a bite of her dessert," nor was she otherwise boisterous, nor did she spill wine on anyone, nor did anyone spill water on her and there was no factual basis for the comment she " * * * started giggling instead of apologizing.".

The impetus for what was printed about the dinner was provided to the writer of the item, Brian Walker, by Couri Hays, a freelance tipster paid by the National Enquirer on an ad hoc basis for information supplied by him which was ultimately published by it, who advised Walker he had been informed respondent had taken her Grand Marnier souffle around the restaurant in a boisterous or flamboyant manner and given bites of it to various other people; that he had further but unverified information respondent had been involved in the wine-water spilling incident; but that, according to his sources, respondent was "specifically, emphatically" not drunk. No mention was made by Hays of anything involving respondent and Henry Kissinger.

Having received this report, Walker spoke with Steve Tinney, whose name appears at the top of the National Enquirer gossip column, expressing doubts whether Hays could be trusted. Tinney voiced his accord with those doubts. Walker then asked Gregory Lyon, a National Enquirer reporter, to verify what Walker had been told by Hays. Lyon's inquiry resulted only in his verifying respondent had shared dessert with other patrons and that she and Kissinger had carried on a good natured conversation at the restaurant.

In spite of the fact no one had told him respondent and Henry Kissinger had engaged in an argument, that the wine-water spilling story remained as totally unverified hearsay, that the dessert sharing incident was only partially bolstered, and that respondent was not under any view of the question inebriated, Walker composed the quoted item and approved the "row" headline.

The National Enquirer is a publication whose masthead claims the "Largest Circulation Of Any Paper in America." It is a member of the American Newspaper Publishers Association. It subscribes to the Reuters News Service. Its staff call themselves newspaper reporters. It describes its business as "newspaper" in its filings with the Los Angeles County Assessor and in its applications for insurance. A State Revenue Department has ruled it qualifies as a newspaper and is thus exempt from sales and use tax. The United States Department of Labor describes it as "belonging to establishments primarily engaged in publishing or printing and publishing newspapers."

By the same token the National Enquirer is designated as a magazine or periodical in eight mass media directories and upon the request and written representation of its general manager in 1960 that "In view of the feature content and general appearance [of the publication], which differ markedly from those of a newspaper * * *," its classification as a newspaper was changed to that of magazine by the Audit Bureau of Circulation. It does not subscribe to the Associated Press or United Press International news services. According to a statement by its Senior Editor it is not a newspaper and its content is based on a consistent formula of "how to" stories, celebrity or medical or personal improvement stories, gossip items and TV column items, together with material from certain other subjects. It provides little or no current coverage of subjects such as politics, sports or crime, does not attribute content to wire services, and in general does not make reference to time. Normal "lead time" ³ for its subject matter is one to three weeks. Its owner allowed it did not generate stories "day to day as a daily newspaper does."

Did the trial court err in holding the National Enquirer was not a newspaper within the provisions of Civil Code § 48a? No.

At appellant's request, the trial court herein made its determination ⁴ after hearing and based on extensive evidence that the National Enquirer was not a newspaper for purposes of the application of Civil Code section 48a (see fn. 2.)

In so concluding, while it took into account the indicia relating to status detailed above, it relied upon the most fundamental of those considerations which have been deemed sufficient to justify the designation of that particular class as the beneficiary of the protection afforded by the statute, namely, that newspapers by virtue of the manner in which they are obliged to operate are not generally in a position adequately to guard against the publication of material which is untrue, such that:

"In view of the complex and far-flung activities of the news services upon which newspapers and radio stations must largely rely and the necessity of publishing news while it is new, newspapers and radio stations may in good faith publicize items that are untrue but whose falsity they have neither the time nor the opportunity to ascertain." (Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 128, 216 P.2d 825.)

The preferred status thus being seen as hinging on the inability of newspapers to verify information while optimally disseminating news, the trial court focused on the element of time as that element was related to appellant's publication process or business mode and found crucial to its determination the National Enquirer should not be...