Diaz v. Oakland Tribune, Inc.

• Decision Date: 18 January 1983
• Citation: 188 Cal.Rptr. 762,139 Cal.App.3d 118
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Ed. Law Rep. 746, 9 Media L. Rep. 1121 Toni Ann DIAZ, Plaintiff and Respondent, v. OAKLAND TRIBUNE, INC., et al., Defendants and Appellants. A012961. Civ. 50954.

Page 762

188 Cal.Rptr. 762

139 Cal.App.3d 118, 8 Ed. Law Rep. 746, 9 Media L. Rep. 1121

Toni Ann DIAZ, Plaintiff and Respondent, v. OAKLAND TRIBUNE, INC., et al., Defendants and Appellants.

A012961.

Civ. 50954.

Court of Appeal, First District, Division 3, California.

Jan. 18, 1983.

As Modified Feb. 17, 1983.

Cooper, White & Cooper, R. Barry Churton, Neil L. Shapiro, John Mahoney, Carey F. Corbaley, San Francisco, for defendants and appellants.

O'Neill & Bridgman, Inc., Richard D. Bridgman, Oakland, De Goff & Sherman, Victoria J. De Goff, Berkeley, for plaintiff and respondent.

BARRY-DEAL, Associate Justice.

Plaintiff Toni Ann Diaz (Diaz) sued the Oakland Tribune, Inc., owners and publishers of the Oakland Tribune (the Tribune), and Sidney Jones (Jones), one of its columnists, for invasion of privacy. Diaz claimed that the publication of highly embarrassing private facts in Jones' March 26, 1978, newspaper column was unwarranted and malicious and caused her to suffer severe emotional distress. The jury awarded Diaz $250,000 in compensatory damages and $525,000 in punitive damages ($25,000 against Jones and $500,000 against the Tribune). Judgment was entered on February 14, 1980. Defendants' motion for a new trial based on insufficiency of the evidence, errors of law, and excessive damages was denied. This timely appeal followed. As discussed below, we reverse the judgment because of instructional errors.

The facts are for the most part undisputed. Diaz is a transsexual. She was born in Puerto Rico in 1942 as Antonio Diaz, a male. She moved to California from New York in 1964. Suffice it to say that for most of her life Diaz suffered from a gender identification problem and the anxiety and depression that accompanied it. She testified that since she was young she had had the feeling of being a woman. ¹ In 1968 Diaz began receiving psychological counseling and hormone therapy. In 1970 or 1971 Diaz embarked on the lengthy process of evaluation as a candidate for gender corrective surgery at the Stanford University Gender Dysphoria Clinic. She was ultimately considered to be a good candidate for surgery. In 1975 gender corrective surgery was performed by the Stanford staff. ²

According to Diaz the surgery was a success. By all outward appearances she looked and behaved as a woman and was accepted by the public as a woman. According to her therapist, Dr. Sable, her physical and psychological identities were now in harmony.

Diaz scrupulously kept the surgery a secret from all but her immediate family and closest friends. She never sought to publicize the surgery. She changed her name to Toni Ann Diaz and made the necessary changes in her high school records, her social security records, and on her driver's license. She tried unsuccessfully to change her Puerto Rican birth certificate. She did not change the gender designation on her draft card, however, asserting that it would be a useless gesture, since she had previously been turned down for induction.

Following the surgery she no longer suffered from the psychological difficulties that had plagued her previously. In 1975 she enrolled in the College of Alameda (the College), a two-year college. The College was one of five colleges of the Peralta Community College District.

In spring 1977, she was elected student body president for the 1977-1978 academic year, the first woman to hold that office. Her election and an unsuccessful attempt to unseat her were reported in the College newspaper, the Reporter, in the May 17, June 1, and June 14, 1977, editions. At no time during the election did Diaz reveal any information about her sex-change operation.

In 1977 Diaz was also selected to be the student body representative to the Peralta Community College Board of Trustees (the Board). ³ Diaz's selection as student body Near the middle of her term as student body president, Diaz became embroiled in a controversy in which she charged the College administrators with misuse of student funds. The March 15, 1978, issue of the Tribune quoted Diaz's charge that her signature had improperly been "rubber stamped" on checks drawn from the associated students' account.

representative, together with her photograph, appeared in the June 1977 issue of the Peralta Colleges Bulletin.

On March 24, 1978, an article in the Alameda Times-Star, a daily newspaper, mentioned Diaz in connection with the charge of misuse of student body funds. ⁴

Shortly after the controversy arose, Jones was informed by several confidential sources that Diaz was a man. Jones considered the matter newsworthy if he could verify the information. Jones testified that he inspected the Tribune's own files and spoke with an unidentified number of persons at the College to confirm this information. It was not until Richard Paoli, the city editor of the Tribune, checked Oakland city police records that the information that Diaz was born a man was verified. The evidence reveals that in 1970 or 1971, prior to the surgery, Diaz was arrested in Oakland for soliciting an undercover police officer, a misdemeanor. ⁵

On March 26, 1978, the following item appeared in Jones' newspaper column: "More Education Stuff: The students at the College of Alameda will be surprised to learn their student body president, Toni Diaz, is no lady, but is in fact a man whose real name is Antonio.

"Now I realize, that in these times, such a matter is no big deal, but I suspect his female classmates in P.E. 97 may wish to make other showering arrangements." ⁶

Upon reading the article, Diaz became very depressed and was forced to reveal her status, which she had worked hard to conceal. Diaz testified that as a result of the article she suffered from insomnia, nightmares, and memory lapses. She also delayed her enrollment in Mills College, scheduled for that fall. ⁷

In her complaint Diaz did not charge that any of the information was untrue, only that defendants invaded her privacy by the unwarranted publicity of intimate facts. Defendants defended on the ground that the matter was newsworthy and hence was constitutionally protected.

At trial the jury returned a special verdict and found that (1) defendants did publicly disclose a fact concerning Diaz; (2) the fact was private and not public; (3) the fact was not newsworthy; (4) the fact was highly offensive to a reasonable person of ordinary sensibilities; (5) defendants disclosed the fact with knowledge that it was highly offensive or with reckless disregard of whether it was highly offensive; and (6) the disclosure proximately caused injury or damage to Diaz.

In this appeal defendants challenge the jury's finding on issues Nos. (2) and (3) above. Defendants also urge instructional error and attack the awards of compensatory and punitive damages. Before we address these issues, it is useful briefly to discuss the competing rights involved herein: the right to privacy and the right to free speech and press.

BACKGROUND

The concept of a common-law right to privacy was first developed in a landmark article by Warren and Brandeis, The Right to Privacy (1890) 4 Harv.L.Rev. 193, and has been adopted in virtually every state. ⁸ The specific privacy right with which we are concerned is the right to be free from public disclosure of private embarrassing facts, in short, "the right to be let alone." (Melvin v. Reid (1931) 112 Cal.App. 285, 289, 297 P. 91.) ⁹

The development of the public disclosure tort in California is well documented. (See Forsher v. Bugliosi (1980) 26 Cal.3d 792, 163 Cal.Rptr. 628, 608 P.2d 716; Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34; Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912.) In fact, California has recognized this right for over 50 years. (See Melvin v. Reid, supra, 112 Cal.App. 285, 297 P. 91.) ¹⁰

The public disclosure tort is one of four distinct torts which are actionable under the general rubric of invasion of privacy. The other three are: (1) intrusion upon plaintiff's solitude or into his or her private affairs; (2) "false light" publicity; and (3) appropriation of plaintiff's name or likeness to the defendant's advantage. (Kapellas v. Kofman, supra, 1 Cal.3d at p. 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912; Virgil v. Time, Inc. (9th Cir.1975) 527 F.2d 1122, 1125.)

The public disclosure cause of action is distinct from a suit for libel or "false light," since the plaintiff herein does not challenge the accuracy of the information published, but asserts that the publicity is so intimate and unwarranted as to outrage the community's notion of decency. (Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d at p. 542, 93 Cal.Rptr. 866, 483 P.2d 34; Sidis v. F-R Pub. Corporation (2d Cir.1940) 113 F.2d 806, 809.) " 'The gravamen of a defamation action is engendering a false opinion about a person, whether in the mind of one other person or many people. The gravamen in the public disclosure [privacy] cases is degrading a person by laying his life open to public view.' " (The Right to Speak, supra, at pp. 958-959, emphasis added.)

Of course, the right to privacy is not absolute and must be balanced against the often competing constitutional right of the press to publish newsworthy matters. (See Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 489, 95 S.Ct. 1029, 1043, 43 L.Ed.2d 328; Virgil v. Time, Inc., supra, 527 F.2d 1122, 1127; Forsher v. Bugliosi, supra, 26 Cal.3d at p. 809, 163 Cal.Rptr. 628, 608 P.2d 716; Briscoe v. Reader's Digest Association, Inc., supra, 4 Cal.3d at p. 534, 93 Cal.Rptr. 866, 483 P.2d 34; Kapellas v. Kofman, supra, 1 Cal.3d at pp. 35-36, 81 Cal.Rptr. 360, 459 P.2d 912.) ¹¹ The First Amendment protection from tort liability is necessary if the press is to carry out its constitutional obligation to keep the public informed so that they may make intelligent decisions on matters important to a self-governing people. (See Cox...