Fellows v. National Enquirer, Inc.

• Decision Date: 31 July 1986
• Citation: 228 Cal.Rptr. 215,57 A.L.R.4th 223,42 Cal.3d 234,721 P.2d 97
• Parties: , 721 P.2d 97, 57 A.L.R.4th 223, 13 Media L. Rep. 1305 Arthur FELLOWS, Plaintiff and Appellant, v. NATIONAL ENQUIRER, INC., Defendant and Respondent. L.A. 32082.
• Court: California Supreme Court

Page 215

228 Cal.Rptr. 215

42 Cal.3d 234, 721 P.2d 97, 57 A.L.R.4th 223,

13 Media L. Rep. 1305

Arthur FELLOWS, Plaintiff and Appellant, v. NATIONAL ENQUIRER, INC., Defendant and Respondent.

L.A. 32082.

Supreme Court of California In Bank.

July 31, 1986.

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

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

BROUSSARD, Justice.

Under Civil Code section 45a, language that is defamatory only by reference to extrinsic facts is not actionable unless the plaintiff can prove special damages. ¹ Special damages are defined in Civil Code section 48a as damages to property, business or occupation. ² In this case we must decide whether the special damages rule of section 45a applies when a defamatory publication gives rise to an action for false light invasion of privacy rather than libel. We conclude that when a false light action is based on a publication that is defamatory within the meaning of the statute, pleading and proof of special damages are required.

I.

The August 17, 1982, edition of the National Enquirer carried a photograph of plaintiff Arthur Fellows and actress Angie Dickinson over the caption, "ANGIE DICKINSON [p] Dating a producer." The accompanying two-sentence article stated: "Georgeous 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."

Shortly after publication, Fellows' attorney wrote a letter to defendant National Enquirer, Inc. (hereafter the Enquirer) asserting that the article was false and demanding a correction. The Enquirer's attorney wrote back expressing confusion about the nature of the alleged falsity. Fellows' attorney then wrote a second letter, which stated: "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." ³ The Enquirer subsequently Plaintiff's initial complaint alleged libel, false light invasion of privacy, intentional and negligent infliction of emotional distress and "conscious disregard" (Mrs. Fellows was added as a plaintiff in the latter three causes of action). The libel count alleged defamation based 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 privacy cause of action was based on the same factual allegations and asserted that the Enquirer's article had placed Fellows before the public in a false light as "steady-dating" Ms. Dickinson and as the "new man in her life," and also had cast him in a false light in the eyes of those who knew of his marital status by suggesting that he was engaged in improper or immoral conduct. Both the libel and false light causes of action alleged that the Enquirer had published the article with knowledge of its falsity or with reckless disregard for whether it was false. Both causes of action also sought general damages for plaintiff's loss of reputation, shame, mortification and hurt feelings. It also was alleged, on information and belief, that plaintiff had suffered special damages to his business as a film producer by a "decline in the amount of new work normally to be expected" and by damage to his "business relationships with members of the film industry." The complaint included a demand for $5 million in punitive and exemplary damages.

rejected the retraction request and Fellows filed the present action.

The Enquirer demurred generally to the complaint. It attacked both the libel and false light claims on the ground that special damages had not been pleaded with sufficient specificity. The Enquirer further argued that the false light claim was duplicative of the defamation claim and should be dismissed as superfluous. The demurrer also challenged the remaining causes of action on grounds not relevant here.

The trial court overruled the demurrer to the libel count, although it expressed skepticism that plaintiff would be able to prove special damages and indicated that defendant would be free to renew its special damages challenge to the amended complaint. The court also overruled the demurrer with regard to the intentional infliction of emotional distress claim, again noting that its ruling was "without prejudice" to further challenges by defendant. The court sustained the demurrer to the false light 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.

Plaintiff filed a first amended complaint that restated the original libel cause of action, expanded the allegations of the invasion of privacy claim, and again included counts for intentional and negligent infliction of emotional distress. In the amended complaint, the false light claim alleged only general damages and did not include any allegations of injury to business. The Enquirer again demurred to the entire pleading on grounds similar to those previously asserted, with emphasis upon the alleged inadequacy of the special damages allegation. At the hearing on this demurrer, plaintiff's counsel conceded that no special damages had been suffered, and acknowledged that it would be "highly improbable [plaintiff] will have special damages." Counsel maintained, however, that such damages were not a prerequisite to 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 expressly stated that it had sustained the demurrer to the libel and false light claims because of the absence or insufficiency of the special damages pleading.

Plaintiff then filed his second amended complaint. In view of his concession that he had not suffered any special damages, plaintiff did not reassert a cause of action for libel, but continued to allege a cause of action for false light invasion of Defendant again demurred to all causes of action. The Enquirer argued that plaintiff's failure to plead special damages barred a cause of action for false light invasion of privacy as well as an action for libel. The trial court agreed, and sustained the demurrer without leave to amend. The court based its ruling expressly on this court's decision in Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, footnote 16, 81 Cal.Rptr. 360, 459 P.2d 912. The court also sustained the demurrer to the causes of action for infliction of emotional distress. ⁴ It then entered an order of dismissal.

privacy. In this complaint, however, he deleted loss of reputation from his request for general damages and sought damages only for shame, mortification and hurt feelings. The causes of action for infliction of emotional distress were once again included.

On appeal, plaintiff argued that the special damages requirement in libel per quod actions should not apply to an action for false light invasion of privacy, which plaintiff asserted is an independent tort designed to redress injuries to interests separate and distinct from the interests at issue in a defamation action. Defendant answered by arguing that plaintiff's view would defeat the legislative policy underlying the special damages requirement since virtually all libel actions could be brought on the alternative theory. The Court of Appeal agreed with plaintiff and reversed the dismissal order. We granted review.

DISCUSSION

An invasion of privacy by publicity that places the plaintiff in a false light in the public eye was first identified as a distinct tort in the late Dean Prosser's well-known 1960 law review article, Privacy (1960) 48 Cal.L.Rev. 383. Prosser considered over 300 cases decided in the 70 years since Warren and Brandeis ⁵ had originated the concept of a legal right of privacy, and determined that the decisions revealed a complex of four independent torts. In addition to false light invasion of privacy, this now definitive formulation included intrusion upon one's solitude or seclusion, public disclosure of private facts and appropriation.

In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person. (Rest.2d Torts, § 652E, [42 Cal.3d 239] p. 394.) Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well. The substantial overlap between the two torts raised from the outset the question of the extent to which the restrictions and limitations on defamation actions would be applicable to actions for false light invasion of privacy.

With the same pen he used to christen the false light tort, Dean Prosser expressed his concern about its future evolution in words that precisely describe the issue we confront over 25 years later. "The question may well be raised, and apparently still is unanswered, whether this branch of the tort is not capable of swallowing up and engulfing the whole law of public defamation; and whether there is any false libel printed, for example, in a newspaper, which cannot be redressed upon the alternative ground. If that turns out to be the case, it may well be asked, what of the numerous restrictions and limitations which have hedged defamation about for many years, in the interest of freedom of the press and the discouragement of trivial and extortionate claims? Are they of so little consequence that they may be circumvented in so casual and cavalier a fashion?" (Prosser, supra, 48...