Dorsey v. National Enquirer, Inc.

• Decision Date: 17 August 1992
• Docket Number: Nos. 90-55017,90-55344,s. 90-55017
• Citation: 973 F.2d 1431
• Parties: 20 Media L. Rep. 1745 Arnold G. DORSEY, a.k.a. Engelbert Humperdinck, Plaintiff-Appellant, v. NATIONAL ENQUIRER, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1431

973 F.2d 1431

20 Media L. Rep. 1745

Arnold G. DORSEY, a.k.a. Engelbert Humperdinck, Plaintiff-Appellant, v. NATIONAL ENQUIRER, INC., Defendant-Appellee.

Nos. 90-55017, 90-55344.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 7, 1991.

Opinion Filed Dec. 11, 1991.

Opinion Withdrawn Aug. 17, 1992.

Decided Aug. 17, 1992.

Robert H. Rotstein, Rosenfeld, Meyer & Susman, Beverly Hills, Cal., for plaintiff-appellant.

Richard S. Hoffman, Williams & Connolly, Washington, D.C., for defendant-appellee.

Appeal from the United States District Court for the Central District of California.

Before: PREGERSON, BEEZER and KOZINSKI, Circuit Judges.

ORDER

This case failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. The panel voted unanimously to grant the petition for rehearing for the limited purpose of removing the references to Cox v. Los Angeles Herald Examiner because the California Supreme Court ordered the Cox opinion decertified.

The opinion filed on December 11, 1991 and cited at 952 F.2d 259 (9th Cir.1992) is withdrawn. A new opinion is filed herewith and the clerk shall issue the mandate forthwith.

OPINION

BEEZER, Circuit Judge:

Arnold Dorsey, better known as Engelbert Humperdinck, sued the National Enquirer, Inc. alleging that an article in its tabloid defamed him. The district court granted summary judgment in favor of the Enquirer and Dorsey appeals. We affirm.

I

In 1980, Kathy Jetter obtained a determination in New York Family Court that Dorsey was the father of her daughter. The court ordered Dorsey to pay child support and educational expenses. See Kathy G.J. v. Arnold D., 116 A.D.2d 247, 501 N.Y.S.2d 58 (1986), cert. denied, 479 U.S. 1054, 107 S.Ct. 927, 93 L.Ed.2d 979 (1987). In May, 1988, Jetter petitioned the same court for an increase in child support payments and for an order requiring Dorsey to purchase life insurance naming the girl as his beneficiary.

Dorsey opposed the request and Jetter filed a Reply Affidavit. In the affidavit she stated: "The request for life insurance is of a dire necessity. Upon information and belief, the respondent has AIDS related syndrome and has been treated at Sloan Kettering in New York." Sometime before December 1988, Jetter gave the National Enquirer a copy of this affidavit. In its December 27, 1988 edition, the Enquirer published an article that highlighted the Reply Affidavit's allegation that Dorsey carries the AIDS virus.

The Enquirer's front page displays a photo of Dorsey next to the headline: "Mother of His Child Claims in Court ... Engelbert Has AIDS Virus." The article itself bears the headline: "Mom of Superstar Singer's Love Child Claims in Court ... Engelbert Has AIDS Virus."

The one-page article quotes Jetter's affidavit twice and quotes Jetter as saying: "I never would have filed the court papers if I wasn't 100 percent convinced he has the AIDS virus." Jordan Stevens, a private investigator hired by Jetter, is quoted as saying:

Humperdinck is suffering from the AIDS virus. We have stated that belief in court papers and it is based on an intensive investigation of the singer during the past five years.

He was tested positive for the AIDS virus in early 1985. As stated in the court documents, he has had treatment for the AIDS virus at Sloan-Kettering hospital but our information is that the disease remains.

The article goes on to explain the ramifications of having the AIDS virus.

The article discusses Jetter and Dorsey's relationship and their previous legal proceedings over child support, leading up to the life insurance request and Reply Affidavit. The third paragraph notes that Dorsey denies the affidavit's AIDS allegation. In the next-to-last paragraph, the Enquirer reports that Dorsey's attorney "said there was no truth whatsoever to the charge that the singer has the AIDS virus and called it an 'utter fabrication.' " The article also includes a picture of Dorsey with the caption: "ENGELBERT DENIES he has the AIDS virus."

Dorsey filed a defamation action against the Enquirer. The Enquirer moved for summary judgment. The district court granted the motion, finding as a matter of law that the article was a fair and true report of allegations made in a judicial proceeding. Thus, it was privileged under California law and protected by the United States Constitution. The district court further held that the incremental harm doctrine shielded the Enquirer from liability. ¹

Dorsey timely appealed the summary judgment order. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II

We review the district court's grant of summary judgment de novo. Kruso v. International Tele. & Tele. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990). "In reviewing a grant of summary judgment, we draw all inferences of fact in favor of the party opposing the motion." Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 138 (9th Cir.1981).

Dorsey is a citizen of England and the Enquirer is a Florida corporation. The district court was therefore sitting in diversity pursuant to 28 U.S.C. § 1332(a)(2). The case was brought in California and the parties do not dispute that California law applies. See Reeves v. American Broadcasting Companies, Inc., 719 F.2d 602, 605 (2nd Cir.1983).

A. Scope of the California Privilege

California law defines an area of reporting which is privileged from defamation actions. Section 47(4) of the state's Civil Code grants the privilege to "a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) anything said in the course thereof...." Cal.Civ.Code § 47(4) (West 1982) ². The district court applied section 47(4) and found that, as a matter of law, the Enquirer article was a fair and true report of a judicial proceeding.

Dorsey first contends that section 47(4) is inapplicable here because the Enquirer article does not report on a "judicial" proceeding within the meaning of the statute. He asserts that the use of the phrase "other public official proceeding" in section 47(4) demonstrates that the California legislature intended the judicial and legislative privileges to be similarly limited to only those proceedings open to the public. Dorsey further asserts that New York Family Court proceedings are confidential and thus outside the scope of the statutory privilege.

We must initially determine whether Dorsey waived this issue by not raising it in the district court. Generally issues cannot be raised for the first time on appeal. Jovanovich v. United States, 813 F.2d 1035, 1037 (9th Cir.1987). We permit a discretionary exception to this rule "when the issue is purely one of law." Id.

Dorsey correctly asserts that his argument on the scope of the section 47(4) privilege raises a purely legal issue. "Whether or not a privileged occasion exists within the meaning of section 47, subdivision 4 is a question of law." Howard v. Oakland Tribune, 199 Cal.App.3d 1124, 1128, 245 Cal.Rptr. 449, 451 (1988). We, therefore, consider the merits of Dorsey's contention that the statute does not encompass reports of proceedings in New York Family Court.

Dorsey's proposed limitation on the privilege's scope lacks support in the case law. As one California court noted, "[i]n determining the scope of the term 'judicial proceeding' within the purview of the rule, the courts of [California] seem to take a comparatively broad view of the question." Glenn v. Gibson, 75 Cal.App.2d 649, 171 P.2d 118, 125 (1946) (privilege applies where newspaper accounts were based on many sources, including out-of-court statements). For example, the Howard court applied section 47(4) to an article about an internal report of a state administrative agency. 199 Cal.App.3d at 1127, 245 Cal.Rptr. at 450. Another appellate court extended it to a newspaper article based upon information obtained from a police department crime report and an FBI "rap sheet." Hayward v. Watsonville Register-Pajaronian and Sun, 265 Cal.App.2d 255, 71 Cal.Rptr. 295, 298 (1968). Neither the crime report nor the rap sheet could be considered a judicial proceeding open to the public. Id.

The Second Circuit, sitting in diversity and applying California law, extended the privilege to a report of secret grand jury proceedings. Reeves, 719 F.2d at 605-606. The court commented that the only limitation in section 47(4) concerning judicial proceedings is that the report be fair and accurate. Id. The courts have not read "public" to modify "judicial" in section 47(4). We thus reject Dorsey's argument that the privilege cannot apply to family court proceedings from which the general public is excluded. ³

B. Resolution as a Matter of Law

Dorsey next contends that the trier of fact should have been allowed to determine whether the Enquirer article is a "fair and true" report of the Reply Affidavit's contents. We disagree. When there is no dispute about the material facts, the "fair and true" issue is generally one of law which can be decided by the court on summary judgment.

The California courts have established a standard to determine when this essentially mixed question of law and fact is treated as a question of law. The "fair and true" issue is one of law when "there is no dispute as to what occurred in the judicial proceeding reported upon or as to what was contained in the report." McClatchy Newspapers, Inc. v. Superior Court, 189 Cal.App.3d 961, 976, 234 Cal.Rptr. 702 (1987); see also Kilgore v. Younger, 30 Cal.3d 770, 180 Cal.Rptr. 657, 640 P.2d 793 (1982) (holding that article was "fair and true" as a matter of law). In Jennings v. Telegram-Tribune Co., 164 Cal.App.3d 119, 210 Cal.Rptr. 485, 489-90 (1985), the court specifically considered the argument that the fairness of a controverted article ought to be one of fact for the jury. Finding that the material facts were not in...