Corman v. Blanchard

• Decision Date: 19 December 1962
• Citation: 27 Cal.Rptr. 327,211 Cal.App.2d 126
• Court: California Court of Appeals Court of Appeals
• Parties: James C. CORMAN, Plaintiff and Appellant, v. C. Lemolne BLANCHARD, Defendant and Respondent. Civ. 26435.

Page 327

27 Cal.Rptr. 327

211 Cal.App.2d 126

James C. CORMAN, Plaintiff and Appellant, v. C. Lemolne BLANCHARD, Defendant and Respondent.

Civ. 26435.

District Court of Appeal, Second District, Division 1, California.

Dec. 19, 1962.

As Modified on Denial of Rehearing Jan. 18, 1963.

Hearing Denied Feb. 13, 1963.

Robert S. Butts, Hollywood, Joseph Biafora, Reseda, and Harry Gross, Van Nuys, for appellant.

Downey A. Grosenbaugh and George E. McGill, Los Angeles, for respondent.

LILLIE, Justice.

Plaintiff sued a rival candidate for Congress for alleged injury to his reputation assertedly caused by the publication of a campaign pamphlet misrepresenting his political views. General demurrer to the first amended complaint was sustained without leave to amend; plaintiff appeals from the judgment entered on the order.

The complaint in libel alleges that prior to the 1960 election defendant circulated among the voting public in the 22nd Congressional District a four-page printed pamphlet published by the '22nd District Independent Democratic Committee' (incorporated by reference and pleaded in paragraph VI, and attached thereto as Exhibit A). On the first page of the pamphlet the word 'REMEMBER' appears in large letters and below it, 'NO CANDIDATE FOR OFFICE ON THE DEMOCRATIC TICKET IS ENDORSED BY THE C.D.C. UNLESS HE SUBSCRIBES TO ITS PLATFORM!' The inside page reads as follows: 'IS THIS THE KIND OF PROGRAM YOU WANT FOR OUR STATE AND NATION? DO YOU FAVOR?

'1. Abolition of the Un-American Activities Committee.

Yes No

'2. Inclusion of Red China in the Geneva negotiations on control of nuclear tests.

Yes No

'3. Remodeling the United Nations into a world organization that can enact, interpret and enforce world law upon individuals and governments alike in disarmament matters.

Yes No

'4. Indefinite suspension of nuclear weapons tests whether or not the other countries agree to a workable inspection system.

Yes No

'5. Abolition of all state and federal loyalty oaths, as well as those required for free scholarships under the National Defense Education Act.

Yes No

'6. Elimination of secret Congressional Committee hearings. (This would make top secret testimony available to the public.)

Yes No

'7. Favored review of treason conviction of atom spy Morton Sobel.

Yes No'

Referring to the above and to the balance of the resolutions continuing on the next page, is the following:

'ON FEBRUARY 12, 13 AND 15, 1960, THE CALIFORNIA DEMOCRATIC COUNCIL MET IN FRESNO, IN STATEWIDE CONVENTION. GOVERNOR BROWN WAS THE KEYNOTE SPEAKER. AT THIS TIME, SOME 2,300 C.D.C. DELEGATES FROM 500 DEMOCRATIC CLUBS APPROVED RESOLUTIONS ADVOCATING --'

On page three appear seven more resolutions:

'8. Removing from the Postmaster General all powers to halt the distribution of pornographic materials through the United States mails.

Yes No

'9. Extending the right to organize to all public employees--firemen, police officers, etc. (This would incur the risk of a police or fireman strike.)

Yes No

'10. Repeal of the Landrum-Griffin Labor Reform Bill of 1959 which calls for unions to publish financial records and compels union officers to take loyalty oaths.

Yes No

'11. Eliminating the use of Mexican nationals and other aliens for farm work.

Yes No

'12. Increasing economic aid to underdeveloped nations, regardless of the character of their governments and reducing of military assistance abroad. (This could leave small nations prey to agressors or result to aid to Communist dominated countries.)

Yes No

'13. Establishing of local police review boards, separte from law enforcement agencies, to hear citizens complaints of mistreatment by police and recommend disciplinary action.

Yes No

'14. Legislation prohibiting the United States from deporting non-citizens for any reason, if they have been in this country 5 years or more. (This might hold true even though these aliens could constitute a threat to the security of our nation.)

Yes No;'

and the following:

'James C. Corman, candidate for Congress in the 22nd District, has been endorsed by the C.D.C. for election this year. No candidate for office on the Democratic ticket is endorsed by the C.D.C. unless he subscribes to its platform.

'As members of the 22nd District Independent Democratic Committee, WE DO NOT BELIEVE THAT THIS PLATFORM IS IN THE BEST INTERESTS OF AMERICA, OUR COMMUNITY, OR OUR FAMILIES. Candidates who support this platform should not be elected to represent us in Sacramento or Washington.'

On the last page of the pamphlet are printed copies of three news clippings--two from the Valley Times, one quoting plaintiff: "I don't think we should cut taxes; I think we should raise them!," and one carrying plaintiff's photograph; a third from the Herald Express entitled, 'Democrats' Statement,' asserts:

'Many loyal Democrats in California must be dismayed by the astonishing statement of policy which emerged from the California Democratic Council convention in Fresno, and which must be assumed to be the key to Democratic Party campaigning for the big election in November.

'Probably the most astounding feature to many thousands of Californians is the policy of opposition declared in the statement to measures which for years have been regarded as strengthening the security and safety of Americans from the dangers of Communism.'

In paragraphs VII and VIII of the complaint, plaintiff pleads matters of innuendo and inducement--that defendant worded the 14 resolutions so that they correspond with express political policies of organizations with Communist affiliations or sympathies, groups distributing pornographic materials, labor organizations under indictment for criminal and racketeering activities, and underworld organizations seeking to weaken law enforcement in California; and that defendant intended to assert that plaintiff supported these resolutions by declaring that--the same were approved by the C.D.C., plaintiff was endorsed by the C.D.C., and no Democratic candidate is endorsed by the C.D.C. unless he subscribes to its platform. He further alleges that defendant intended to assert, and was understood by readers of the pamphlet as asserting, that he (plaintiff) was either a Communist or a Communist sympathizer; in sympathy with and supported by groups distributing pornographic materials, labor organizations under indictment and underworld organizations seeking to weaken law enforcement; and opposes measures regarded as strengthening the security and safety of Americans from dangers of Communism. He pleads the publication to be false, unprivileged and defamatory; injury and damage to his character and occupation; and defendant's ill will and malice. Finally, the complaint alleges that defendant printed and distributed the pamphlet in violation of section 5005, Elections Code [now Elections Code 1961, § 12047], in that it did not carry the name and address of the printer and the chairman and secretary or two officers of the political or other organization issuing it, nor the name and address of any voter responsible for it.

Inasmuch as this case arises on demurrer, we assume the sufficiency of the complaint alleging the falsity of the statements published, and defendant's intent. (Howard v. Southern Calif. Associated Newspapers, 95 Cal.App.2d 580, 213 P.2d 399.) Thus, for our purpose, defendant wilfully and maliciously represented that plaintiff favored certain political views to which he does not subscribe. Moreover, for our consideration, we borrow the contention of plaintiff and the lower court's ruling thereon, and assume that because of the violation of section 5005, section 5005.5, Elections Code [now Elections Code 1961, §§ 12047, 12048], precludes defendant from pleading any absolute or qualified privilege to print the publication; and that the publication was unprivileged. Thus, the sole issue before us is whether the complaint states a cause of action for libel.

Appellant argues first that per se the publication is libelous; then, as his second contention, assuming it is not libelous per se, that the pleaded matters of innuendo, inducement and special damage clearly point up the defamatory nature of the publication in that it informed the reader and by it he understood, that he (plaintiff) 'was either in sympathy with or a member of groups infiltrated by Communists, Communist sympathizers and/or criminals.' (A.O.B., p. 6.) He cites numerous authorities involving defamation by implication--that plaintiff was a Communist or Communist sympathizer (Herrmann v. Newark Morning Ledger Co., 48 N.J.Super. 420, 138 A.2d 61; MacLeod v. Tribune Publishing Co. 52 Cal.2d 536, 343 P.2d 36; Farr v. Bramblett, 132 Cal.App.2d 36, 281 P.2d 372; Faulk v. Aware, Inc., 3 Misc.2d 833, 155 N.Y.S.2d 726; Foltz v. News Syndicate Co., D.C.N.Y., 114 F.Supp. 599), or of association with criminals or criminal elements (Schomberg v. Walker, 132 Cal. 224, 64 P. 290) or persons of 'low character.' (Ervin v. Record Pub. Co., 154 Cal. 79, 97 P. 21, 18 L.R.A.,N.S., 622.) Appellant complains the lower court erred in failing to consider three factors:--'the statements which surround the 14 resolutions' (A.O.B., p. 27), 'the intent of the defendant in publishing the pamphlet' (A.O.B., p. 28), and 'the climate of public opinion' (A.O.B., p. 30).

We deal first with appellant's contention that the pamphlet is libelous per se, that is, defamatory on its face without necessity for pleaded explanatory matter by way of inducement, innuendo or other extrinsic fact. (§ 45a, Civ.Code.) To be libelous the publication, besides being false and unprivileged, must have exposed plaintiff to 'hatred, contempt, ridicule or obloquy,' or caused him 'to be shunned or avoided,' or have a tendency 'to injure him in his occupation.' (§ 45, Civ.Code.) In determining the issue of defamation the publication in question must be considered in its entirety; '[I]t may not be divided into segments and each portion...