Erlich v. Etner

• Decision Date: 08 January 1964
• Citation: 36 Cal.Rptr. 256,224 Cal.App.2d 69
• Court: California Court of Appeals Court of Appeals
• Parties: David ERLICH, Plaintiff and Respondent, v. Chaim I. ETNER, Defendant and Appellant. Civ. 27402.

Page 256

36 Cal.Rptr. 256

224 Cal.App.2d 69

David ERLICH, Plaintiff and Respondent, v. Chaim I. ETNER, Defendant and Appellant.

Civ. 27402.

District Court of Appeal, Second District, Division 4, California.

Jan. 8, 1964.

Rehearings Denied Jan. 27, 1964.

Hearing Denied March 4, 1964.

Richard A. Perkins, Los Angeles, for defendant and appellant.

Joseph W. Fairfield, Beverly Hills, and Ethelyn F. Black, Los Angeles, for plaintiff and respondent.

KINGSLEY, Justice.

In 1960, plaintiff David Erlich, doing business as West Coast Poultry Company, was one of Los Angeles' largest distributors of kosher chickens. Sometime in January, 1960, plaintiff agreed to supply the Beverly Hilton Hotel with 1120 kosher chicken breasts for a Bonds for Israel Dinner which was to be held at the hotel in March. The chicken breasts were delivered on a Saturday--the Jewish sabbath. After the delivery, but just prior to the dinner, it was rumored that the chicken breasts represented to be kosher were in fact not kosher. This rumor prompted an immediate investigation by Rabbi Juda Glasner, the State Kosher Food Inspector. On the recommendation of Rabbi Glasner, plaintiff was charged in the Municipal Court of Beverly Hills with a violation of section 383b of the Penal Code (the Kosher Food Law).

Plaintiff's involvement in kosher law litigation received wide coverage in the local press and radio, and especially in the Anglo-Jewish press. The defendant, Rabbi Chaim Etner, purchased some 900 to 1000 copies of the 'California Jewish Press' edited and published by defendant Waxman, which carried a story pertaining to plaintiff's involvement in the kosher law litigation. Defendant then circulated these newspapers on the sabbath to orthodox Jews as they were leaving their place of worship. Defendant next helped author a letter addressed to various kosher butchers doing business in Los Angeles, stating in substance that plaintiff was selling nonkosher chickens, chicken parts, chicken fat, and livers as kosher products. Defendant next authorized a letter which he sent to the State Kosher Food Inspector, asking him to investigate plaintiff's business because of alleged non-kosher activities.

Eventually plaintiff was acquitted of violating Penal Code, section 383b. Defendant then proceeded to author a nine page document entitled 'Special Edition of Kashruth Bulletin' and sent copies to orthodox Rabbis in Los Angeles, butchers, and others interested in Jewish communal affairs. This document again complained of plaintiff's allegedly non-kosher activities.

It is apparent, from a careful reading of the reporter's transcript, that plaintiff's theory of the events involved was as follows: Defendant Etner was aggrieved at plaintiff because plaintiff no longer employed him as supervising Rabbi in connection with plaintiff's kosher poultry business. Defendant Waxman, defendant Etner, and Rabbi Glasner were concerned because it appeared that the then legislative session might eliminate the appropriation for enforcement of the Kosher Food Law, of which Glasner was the state enforcement officer and of which Waxman considered himself to be the 'father.' Etner, Glasner and Waxman, together with the management of another kosher poultry dealer who was plaintiff's chief competitor, entered into a conspiracy to create an 'incident' involving a violation of the Kosher Food Law, and to give that incident widespread publicity, with two ultimate objectives: (a) to induce the Legislature to continue the approriation and (b) to drive Erlich out of the kosher poultry business to the enhancement of the business of his competitor. In furtherance of that conspiracy: one of plaintiff's employees was induced to deliver a large order of chicken breasts to the Beverly Hilton on a Saturday, in violation of the Jewish sabbath; Glasner purported to find, among the breasts so delivered, evidence that they had been purchased from a non-kosher supplier; Glasner instituted an unfounded criminal charge against plaintiff; and Waxman and Etner caused the publication of newspaper articles, and Etner distributed circular letters, among the Jewish community, recounting the alleged violation of the kosher laws.

Defendants' theory seems to have been as follows: In fact, plaintiff filled the Beverly Hills order, at least in part, by including non-kosher chicken breasts purchased from a non-kosher supplier. Etner, discovering this, as well as the sabbath delivery, in righteous wrath, sought to bring to book one whom he regarded as guilty of a serious breach of Jewish law. Waxman acted in complete innocence, and independently of anyone else, in publishing legitimate news articles about a judicial proceeding and in making fair editorial comment thereon. Glasner merely did his duty in investigating and instituting a prosecution for a violation of the law he was paid to enforce.

Originally two law suits were instituted by plaintiff against defendant, and against others who are not involved in this appeal. Because of similarity of issues the two actions were consolidated. Although plaintiff's complaint alleged several causes of action, at the commencement of the trial a conference was had in chambers wherein it was stipulated that plaintiff would proceed against defendant Etner on the theory of trade libel only, and that he would file an amended complaint predicated on a single count of trade libel.

At the close of plaintiff's case in chief, a non-suit was granted to defendant Waxman, on the ground that the evidence showed only the publication by him of qualifiedly privileged communications. The case went to the jury as to defendants Etner and the Haredim Board of Orthodox Jews. ¹ The jury returned a verdict against both defendants for $75,000 compensatory damages and against Etner for $50,000 punitive damages. On a motion for new trial, the judge reduced the damages $30,000 compensatory damages and $5,000 punitive damages. Plaintiff accepted the reduction and, after allowing a credit for a payment made by a codefendant, judgment was entered against defendant Etner for $28,000 plus costs. Etner appeals.

Although the testimony is far from being explicit, we concluded that it from being explicit, we conclude that it of the jury that Etner was guilty of some conspiracy ² to create, or at least to play up and enhance, a kosher food law violation involving plaintiff, and that he was motivated by malice toward plaintiff in so acting; that he intended by his actions to cause the newspaper publicity which followed, not only in Waxman's paper but in the newspapers of general circulation in Los Angeles and Beverly Hills; and that, among his machinations, was causing plaintiff's employee, in plaintiff's absence, to make the sabbath delivery--which was the act which focused attention at the hotel and by Glasner, on plaintiff and his operations. Had plaintiff proceeded with a traditional action for defamation, the verdict, as reduced in amount by the trial court, would have been proper. It is settled law that, in some instances at least, disparagement of the goods of a businessman may be made in such a manner as to imply business dishonesty, giving rise to an action under sections 45 and 45a of the Civil Code in which, it being 'libel per se,' no special damages need be alleged or proven. (Rosenberg v. J. C. Penney Co. (1939) 30 Cal.App.2d 609, 86 P.2d 696; Carpenter, Libel Per Se in California and Some Other States, (1944) 17 So.Cal.L.Rev. 347.) And, had plaintiff elected to proceed by way of an action in tort for inducing a breach of contractual relations, relying not on the statements attributable to Etner but on the act of causing the sabbath delivery, the evidence, as we shall point out hereafter would have supported a verdict in some amount.

However, as we have pointed...