Cepeda v. Cowles Magazines and Broadcasting, Inc., 18862.

• Decision Date: 03 April 1964
• Docket Number: No. 18862.,18862.
• Citation: 328 F.2d 869
• Parties: Orlando CEPEDA, Appellant, v. COWLES MAGAZINES AND BROADCASTING, INC., a corporation, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

328 F.2d 869 (1964)

Orlando CEPEDA, Appellant, v. COWLES MAGAZINES AND BROADCASTING, INC., a corporation, Appellee.

No. 18862.

United States Court of Appeals Ninth Circuit.

February 27, 1964.

Rehearing Denied April 3, 1964.

Lewis & Stein, and Marvin Lewis, San Francisco, Cal., for appellant.

Cooper, White & Cooper, Sheldon G. Cooper, Charles W. Kenady, J. Raymond Healy and Eugene J. McDonald, San Francisco, Cal., for appellee.

Before CHAMBERS and JERTBERG, Circuit Judges, and MADDEN, Judge of the Court of Claims.

MADDEN, Judge.

This suit for libel was brought by Orlando Cepeda against Cowles Magazines and Broadcasting, Inc., because of an article about Cepeda published in the defendant's weekly magazine, Look, in its May 21, 1963, issue. The author of the article is described by the appellee, hereinafter called the defendant, as "a nationally recognized sportswriter and baseball authority." The suit was filed by the plaintiff in the Superior Court of the State of California, in San Francisco, and was removed, at the instance of the defendant, on the ground of diversity of citizenship, to the United States District Court for the Northern District of California, Southern Division. That court granted the defendant's motion for a summary judgment apparently on the ground that the language used in the defendant's article was not libelous per se, since the court stated that the plaintiff had stipulated that he would not amend his complaint to allege special damages.

Cepeda had been, during the 1962 season, a member of the San Francisco Giants baseball team which had won the National League pennant in that year and had lost the World Series to the New York Yankees in a seven-game series. He was one of the ablest and best known players on the San Francisco team. He was a member of the San Francisco team again in 1963, at the time, early in the 1963 baseball season, when the article here involved was published by the defendant.

The article said that Cepeda's name had a sale tag on it; that "it is astonishing that Cepeda, power hitter and slick fielder on a pennant winner, should be considered expendable"; that he had "for sometime been in disfavor with owner Horace Stoneham, Manager Alvin Dark and the club's cue takers"; that among the counts against him were "(2) He is not a team man. (3) When things go wrong he blames everybody but Orlando. (4) He does not rebound and take it out on the opposition"; that he has a "doghouse status" with the Giants' hierarchy which deem him "temperamental, uncooperative and underproductive"; that one Giant executive had said, in regard to the Giants' first visit to their former New York playing field to play the New York Mets and the thunderous reception there given Cepeda's teammate Willie Mays:

"Orlando didn\'t get over that for quite a while. It helped pave the way for what happened to him in the second half of the season."

The fact was that Cepeda's play in the second half of that season was below his standard of the first half. In connection with the article was a photograph of Cepeda being banned by the umpire from a game because he had made a violent gesture of dissatisfaction at being called out at first base.

Section 45 of the Civil Code of California defines libel as

"a false and unprivileged publication by writing, printing, picture, effigy or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation."

To write of a well-known baseball player who, in the course of a season, would be under the interested observation of hundreds of fellow players and hundreds of thousands of paying customers and of the management establishments of all of the teams in the two big leagues, that this player in spite of great ability as a player has a "doghouse status" with the management hierarchy of his own pennant-winning team, which regards him as "not a team man," who blames everyone but himself when things go wrong, who is "temperamental, uncooperative and underproductive" as a member of the team, who has been characterized by at least one executive of his team as being so consumed with jealousy of one of his teammates that his ability as a player was adversely affected for half of a baseball season, would, for those who read and believed the writing, tend to produce the effects defined in the Civil Code. These statements would produce feelings of contempt and ridicule for one who, because of these faults of temperament, failed to fulfill the promise of his great natural physical abilities. They would tend to injure Cepeda in his occupation of a notable baseball player because they would put the managements of the other nineteen teams in the big leagues on notice that if they acquired Cepeda they would get not only the asset of his great ability as a player but also the troublesome and disrupting liability of his temperament. Naturally, they would discount his value accordingly.

The Civil Code of California, § 45a, says in part:

"A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. * * *"

The defendant urges that the district court was right in holding that the defendant's article was not libelous on its face. In the case of MacLeod v. Tribune Publishing Co., Inc., 52 Cal.2d 536, 548, 343 P.2d 36, the Supreme Court of California recounted the judicial and legislative history leading to the enactment of § 45a. Applying § 45a to our instant case, and paraphrasing the language of the Supreme Court of California in the case of Maidman v. Jewish Publications Inc., 54 Cal.2d 643, 649, 7 Cal.Rptr. 617, 355 P.2d 265, 87 A.L.R.2d 439 we would say, "The article in question could not have any effect other than to cause injury to the reputation of a person in Cepeda's position." It was, if false and unprivileged, libelous on its face, i. e. per se, and there was no necessity for any allegation or proof of special damages resulting from it.

The defendant also urges that its article was privileged. A significant feature of the defendant's writing was that, though the author is said by the defendant to be "a nationally recognized sportswriter and baseball authority," the parts of the article in question of which the plaintiff complains contain practically nothing of this authority's opinion or criticism. What it gives the reader is a report of what, the writer says, Cepeda's employers, the management of the San Francisco Giants, were thinking and saying about him. Some of the thoughts were expressly attributed to that source, and the rest of them would be attributed by a reader to that source, since the writer of the article could not have known them except by learning them, directly or indirectly, from that source. We do not, then, have a situation in which the interested but relatively unsophisticated baseball buffs among Look Magazine's millions of readers were being enlightened by a nationally recognized authority's analysis and opinion of l'affaire Cepeda. If the article was a true report, the reader still got only what an eavesdropper with an acute ear and an accurate memory might have learned by listening at the keyhole of the Giants' front office. There are obvious difficulties about fitting this kind of writing into the philosophy upon which the privilege of fair comment is based.

The plaintiff says that the Giants' officials did not entertain the unfavorable opinions which the defendant's writer attributed to them. Since one may not escape liability for defamation by showing that he was merely repeating defamatory language used by another person,¹ a fortiori he may not escape by falsely attributing to others the ideas to which he gives expression. The attribution to others may well make the defamation more serious. If, for example, a sportswriter quoted Joe Di Maggio as having said that Cepeda, in the batter's box was a helpless clown, that attributed opinion would carry more weight and be more damaging than a similar opinion of the sportswriter himself. Attribution of the opinion that Cepeda's temperament was unsuited to championship baseball, to the Giants' management, the ones in a position to know most about his temperament, would, similarly, add to the weight of the opinion.

The defendant relies heavily upon the California code provision relating to qualified privilege. Section 47(3) of the Civil Code says:

"A privileged publication or broadcast is one made —

* * * * * * "In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or * * *.

The qualified privilege invoked by the defendant is the privilege of fair comment and criticism. This is a generally recognized privilege. There is, however, a diversity of opinion in the various state courts as to whether this privilege covers not only fair comment or criticism concerning proved or admitted facts, but also misstatements of facts to which the comment or criticism is related. Professor Prosser, in his text on Torts, 2d ed., p. 621, says that three-fourths of the states hold that the qualified privilege on account of public interest does not extend to any false assertion of fact.² But he cites the case of Snively v. Record Publishing Co., 185 Cal. 565, 198 P. 1, as taking the contrary view. The Snively case involved a publication in a local newspaper of a cartoon with writings inserted which imputed criminal dishonesty to the local chief of police. The court stressed the interest of the newspaper and its readers in the conduct of local officials, and the necessity of free speaking and publishing on those matters without fear of actions for...