Fellows v. National Enquirer, Inc.

Citation211 Cal.Rptr. 809,165 Cal.App.3d 512
CourtCalifornia Court of Appeals
Decision Date12 March 1985
PartiesPreviously published at 165 Cal.App.3d 512 165 Cal.App.3d 512 Arthur FELLOWS, Plaintiff and Appellant, v. NATIONAL ENQUIRER, INC., Defendant and Respondent. B004319.

Grayson & Gross, Marvin Gross and James M. Simon, Los Angeles, for plaintiff and appellant.

Williams & Connolly, John G. Kester, Richard S. Hoffman, Washington, D.C., Irell & Manella, Richard H. Borow, P.C., and Jon W. Davidson, Los Angeles, for defendant and respondent.

LUCAS, Associate Justice.

Civil Code section 45a provides that an action for libel based upon a publication that is defamatory only by reference to extrinsic facts not appearing on the face of the publication may not proceed unless the plaintiff alleges that the libel caused special damages to his business, trade or property. 1 The question presented by this appeal is whether section 45a bars an action for invasion of privacy based on knowing or reckless exposure of the plaintiff to false publicity, not defamatory on its face, which has caused injury to plaintiff's peace of mind and personal feelings but has not caused such special damages. The trial court answered this question affirmatively, and dismissed plaintiff's action for invasion of privacy, under the perceived compulsion of a Supreme Court opinion that referred to a cause of action for invasion of privacy by false light publicity as "in substance equivalent to ... [a] libel claim." (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912.) Upon thorough consideration of this and other relevant decisions concerning the tort of invasion of privacy, its relationship to defamation, and the purposes of section 45a, we have concluded that this particular restriction of libel claims does not apply to a cause of action for invasion of privacy by false light publicity. Accordingly we reverse.


In the August 17, 1982 edition of its tabloid The National Enquirer, defendant National Enquirer, Inc. (Enquirer) published the following item concerning plaintiff Arthur Fellows (Fellows): "Gorgeous Angie Dickinson's all smiles about the new man in her life--TV producer Arthur Fellows. Angie's steady-dating Fellows all over TinselTown, and happily posed for photographers with him as they exited the swanky Spago restaurant in Beverly Hills." Accompanying the article was a photograph of Ms. Dickinson and Fellows over the caption, "ANGIE DICKINSON [p] Dating a producer."

Immediately after the publication Fellows, through his attorney, sent Enquirer a written demand for correction of the article. The demand notified Enquirer that Fellows had never dated Ms. Dickinson and stated that "[a]ny implication that they have dated and/or are dating is false, libelous, misleading and damaging to Arthur Fellows and constitutes an invasion of his privacy." Enquirer's counsel replied, "I do not understand in what respect Mr. Fellows claims the news item to be false or damaging ...." Fellows' counsel then further By his initial complaint Fellows charged Enquirer with both libel and invasion of privacy by publicity placing him in a false light in the public eye; he also alleged purported causes of action, on behalf of himself and his wife, for intentional and negligent infliction of emotional distress and for "conscious disregard." The libel cause of action alleged defamation dependent on facts extrinsic to the article: "Said article is defamatory in that said article was understood by those who read it or heard it [sic ] and who have knowledge of plaintiff's marital status to mean that plaintiff was engaged in improper and immoral conduct." The second, privacy cause of action asserted that Enquirer's article had placed Fellows in a false light to the public of being the " 'new man' " in Ms. Dickinson's life who was "steady-dating" her "all over town," and also had cast him in a false light, in the eyes of those who knew of his marital status, of having engaged in improper and immoral conduct. Both causes of action alleged that Enquirer had published the article with knowledge of its falsity or reckless disregard for whether it was false--the standard of culpability the United States Supreme Court has held to be constitutionally required for a defamation claim against a news medium by a public official or public figure (e.g., New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789) and for a "false light" invasion of privacy claim brought on account of a false report of a matter of public interest (Time, Inc. v. Hill (1967) 385 U.S. 374, 387-388, 87 S.Ct. 534, 541-542, 17 L.Ed.2d 456; Cantrell v. Forest City Publishing Co. (1974) 419 U.S. 245, 249-251, 95 S.Ct. 465, 468-470, 42 L.Ed.2d 419.) By way of damages, Fellows alleged in each claim that he had suffered injury to his reputation, shame, mortification, and hurt feelings--the type of "general damages" defined for defamation actions by section 48a, subdivision (4)(a)--and also, on information and belief, that he had suffered special damages to his business as a film producer by way of "a decline in the amount of new work normally to be expected" and by way of damage to his "business relationships with members of the film industry."

                explained, in a second letter, "The article is false because Mr. Fellows has never dated Miss Dickinson, is not 'the new man in her life,' and has been married to Phyllis Fellows for the last 18 years." 2  By return letter of September 7, 1982, Enquirer rejected Fellows' demand for correction.  Fellows filed the present action two weeks later

Enquirer demurred generally to the complaint. Concerning the libel cause of action, Enquirer asserted that the pleading was insufficiently specific in its allegation of special damages, which were necessary to render the libel actionable under section 45a because the article's alleged defamatory meaning depended on the extrinsic fact of Fellows' marital status. Enquirer further urged that the invasion of privacy cause of action should be dismissed because it was redundant of the libel claim and was identically deficient. The demurrer also challenged the remaining causes of action, on other grounds not here pertinent.

After expressing skepticism whether Fellows could prove special damage to his business and inquiring of counsel concerning the actual facts, the trial court overruled the demurrer to the libel and intentional infliction of emotional distress counts "without prejudice." The court sustained the demurrer as to the invasion of privacy claim on the ground that it was "redundant" of the libel claim but granted leave to amend. The demurrer also was sustained to the remaining causes of action.

Fellows filed a first amended complaint which reiterated his original libel cause of action, expanded the allegations of the invasion of privacy claim, and again included Fellows then filed his second amended complaint. In accordance with his concession that he had not suffered special damages of the type required for an action for libel based upon a publication not defamatory on its face, Fellows did not reassert his libel claim. He did, however, restate his cause of action for invasion of privacy by false light publicity, alleging that the article, published with knowledge of or reckless disregard for its falsity, had cast him in a false light in the public eye both because he had never dated Dickinson and was not "the new man" in her life and because the article falsely depicted him to those with knowledge of his marital status as engaging in improper and immoral conduct. As so repleaded, this cause of action abandoned the claim for damages to Fellows' reputation and sought only damages on account of injury to his privacy, his peace of mind, and his feelings. The complaint also reiterated the causes of action for infliction of emotional distress.

                counts for intentional and negligent infliction of emotional distress.  As thus reasserted, the cause of action for invasion of privacy omitted the libel count's allegation of special damages and alleged only damages to Fellows' reputation, peace of mind, and personal feelings.  Enquirer again demurred to the entire pleading, on grounds similar to those previously asserted, with emphasis upon the alleged inadequacy of the special damage allegations.  At the hearing of this demurrer Fellows' counsel informed the court, in response to its inquiry at the prior hearing, "at this time the answer is we have no special damages.  It is highly improbable we will have special damages."   Counsel asserted, however, that such damages were not a necessary ingredient of a cause of action for invasion of privacy.  The court this time sustained the demurrer to all causes of action except that for negligent infliction of emotional distress, again granting leave to amend.  The court's stated reason for sustaining the demurrer to the libel and invasion of privacy claims was the absence or insufficiency of special damages

Enquirer again demurred to all causes of action. The demurrer focused upon the absence of allegations of special damages necessary for a libel claim based on a publication not defamatory on its face. Enquirer urged that the absence of such damages not only deprived Fellows of a viable cause of action for libel but also barred his false light invasion of privacy claim (as well as the count for negligent infliction of emotional distress). The trial court (a different judge from the one who had heard the previous demurrers) agreed, and sustained the demurrer without leave to amend. The court so ruled based upon its reading of footnote 16 of the Supreme Court's opinion in Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912 (discussed infra ). The court informed Fellows' counsel, "I think the bottom...

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