Fendler v. Phoenix Newspapers Inc.

• Decision Date: 03 November 1981
• Docket Number: CA-CIV,No. 1,1
• Citation: 636 P.2d 1257,130 Ariz. 475
• Parties: , 7 Media L. Rep. 2569 Robert H. FENDLER, Plaintiff-Appellant, v. PHOENIX NEWSPAPERS INC., an Arizona corporation, Nina Pulliam, Mason Walsh, Darrow Tully, Frederic S. Marquardt, Pat Murphy, William Shover and Does I through XXX, inclusive, Defendants-Appellees. 5205.
• Court: Arizona Court of Appeals

Page 1257

636 P.2d 1257

130 Ariz. 475, 7 Media L. Rep. 2569

Robert H. FENDLER, Plaintiff-Appellant, v. PHOENIX NEWSPAPERS INC., an Arizona corporation, Nina Pulliam, Mason Walsh, Darrow Tully, Frederic S. Marquardt, Pat Murphy, William Shover and Does I through XXX, inclusive, Defendants-Appellees.

No. 1 CA-CIV 5205.

Court of Appeals of Arizona, Division 1, Department A.

Nov. 3, 1981.

Robert H. Fendler, Phoenix, in pro. per

Gust, Rosenfeld, Divelbess & Henderson by James F. Henderson and Dean G. Kallenbach, Phoenix, for defendant-appellee Phoenix Newspapers, Inc.

OPINION

CONTRERAS, Presiding Judge.

This appeal presents the questions of whether substantial truth is a complete defense in a libel action and whether, under some circumstances, a determination of substantial truth is a question of law for the court. We answer both questions affirmatively, and therefore affirm a summary judgment for appellees on one count of appellant's amended complaint and the dismissal of the remaining counts.

FACTUAL BACKGROUND

The background chronology of events that transpired prior to the commencement of the present civil action is best understood from the following excerpt of a prior decision of this court.

On March 7, 1977, Robert H. Fendler (appellant), James R. Holman and Leonard H. Foreman were charged in a seventeen count indictment with criminal conduct in connection with the operation of several financial institutions headquartered in Phoenix, Arizona. The firms involved included the Lincoln and American Thrift Associations and the American Bank of Commerce. On October 13, 1977, co-defendant, Leonard Foreman, entered into a plea agreement with the state and pled guilty to the charge of conspiracy. (Count One). The trial subsequently commenced on October 17, 1977, and continued through February 27, 1978, at which time the jury found appellant guilty of conspiracy, A.R.S. § 13-331 (now A.R.S. § 13-1003), false book entry, A.R.S. § 10-193 (now A.R.S. § 10-136), and failure to file a state corporate income tax return. A.R.S. § 43-179 (now A.R.S. § 43-842). On April 14, 1978, the trial court dismissed the conspiracy count on the basis of duplicity and thereafter entered judgments of guilt on each of the remaining two counts. Appellant was sentenced to serve not less than one nor more than three years on the failure to file count, and not less than four nor more than five years on the false book entry count.

State v. Fendler, 127 Ariz. 464, 468-69, 622 P.2d 23, 27-28 (App.1980), rev. denied, December 23, 1980, cert. denied, --- U.S. ----, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In 1980, appellant's conviction and sentence on the false book entry count was affirmed, and the conviction on the failure to file count was reversed and remanded for a new trial. Id. The disposition on the criminal appeal is not relevant here since it occurred after the alleged defamation which is the subject of the present civil appeal.

Following appellant's conviction and sentence, and while he was released on bail pending an appeal of his conviction and sentence, an editorial published in the Arizona Republic on September 5, 1978, stated, in pertinent part:

This year Garfield reportedly told a political meeting, "I don't know much about Lincoln Thrift, but Mr. Fendler is supporting my opponent, Stan Akers.

Actually, Fendler is doing four-to-five years in prison because of his fraudulent practices at Lincoln Thrift....

(emphasis added). On September 12, 1978, appellant filed a complaint in the Superior Court of Maricopa County, naming Phoenix Newspapers, Inc. and several of its officers and employees in their individual capacities as defendants and alleging that appellant was defamed by the above statement.

On September 20, 1978, an article in the Arizona Republic stated, in pertinent part:

Fendler also is appealing a five-year state prison term he received in Maricopa County Superior Court for a fraud conviction stemming from the collapse of the two thrift firms.

(emphasis added). That same day, appellant filed an amended complaint identical to the original complaint except for the addition of a seventh count. The new count alleged defamation based upon the above statement.

On October 2, 1978, appellees filed a motion to dismiss counts two through seven on grounds that they failed to state a claim and, further, that they were based upon the same publication as count one and were thereby precluded by A.R.S. § 12-651 which limits a plaintiff to "... one cause of action ..." for a single publication. The trial court dismissed counts two through six by a minute entry dated November 9, 1978.

Appellees filed a second motion to dismiss count seven on November 14, 1978, on grounds that the truth of the September 20, 1978, article constitutes an absolute defense to defamation. The trial court granted the motion to dismiss count seven by minute entry dated January 23, 1979. ¹

On September 7, 1979, appellees filed a motion for summary judgment on the remaining count, on the grounds that the September 5, 1978, editorial was substantially true and therefore could not be libelous. Following oral argument, the trial court granted the motion. Formal judgment was entered on November 5, 1979, in favor of Phoenix Newspapers, Inc. An amended judgment was entered on December 17, 1979, granting judgment on the complaint to Phoenix Newspapers, Inc. and the individual defendants. This appeal followed.

The issues raised in this appeal are whether the trial court erred by failing to permit issues of the falsity of the September 5, 1978, editorial or existence of malice to go to the jury; whether the trial court erred by dismissing counts two through seven; and whether the trial judge erred by failing to recuse herself. We affirm the judgment of the trial court.

SUBSTANTIAL TRUTH AS A DEFENSE

Appellant's brief on appeal addresses only the September 5, 1978, editorial. Appellant contends that the editorial is false in stating that he was "doing four-to-five years in prison" because at the time the editorial was published he was free (i. e., released) on bail pending an appeal of his conviction and sentence. Appellees acknowledge the inaccuracy of the statement that appellant was in prison when the editorial was published but argue that the editorial was substantially true and is therefore not actionable. ²

We consider first the general question of whether substantial truth is a complete defense to defamation. Arizona courts have long held that truth is a complete defense to an action for defamation. However, these cases do not specifically address the question of substantial truth as a defense. See, e. g., Cullison v. City of Peoria, 120 Ariz. 165, 584 P.2d 1156 (1978); Central Arizona Light and Power Co. v. Akers, 45 Ariz. 526, 46 P.2d 126 (1935). In deciding whether substantial truth, like absolute truth, should provide a complete defense to defamation, we look to the Restatement (Second) of Torts, which Arizona will follow in the absence of authority to the contrary. See MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958); Barnum v. Rural Fire Protection Co., 24 Ariz.App. 233, 537 P.2d 618 (1975).

The Restatement (Second) of Torts, § 558 (1977), sets forth the elements of an action for defamation and provides in part To create liability for defamation there must be:

(a) a false and defamatory statement concerning another....

(emphasis added)

The Restatement (Second) of Torts, § 581(A) (1977) provides:

One who publishes a defamatory statement of fact is not subject to liability for defamation if the statement is true.

Comment f to § 581(A) provides in part:

It is not necessary to establish the literal truth of the precise statement made. Slight inaccuracies of expression are immaterial provided that the defamatory charge is true in substance.

(emphasis added).

Numerous jurisdictions which have considered the issue have adopted the Restatement position that substantial truth is sufficient to defeat an action for defamation. For example, in Kurata v. Los Angeles News Publishing Co., 4 Cal.App.2d 224, 227, 40 P.2d 520, 522 (1935), the California Court of Appeal stated:

It is well settled that a defendant is not required in an action of libel to justify every word of the alleged defamatory matter; it is sufficient if the substance, the gist, the sting of the libelous charge be justified, and if the gist of the charge be established by the evidence, the defendant has made his case.

This standard has been reaffirmed by the California courts on numerous occasions and similar, if not identical, standards have been adopted in other jurisdictions. See, e. g., Alioto v. Cowles Communications, Inc., 623 F.2d 616 (9th Cir. 1980); Maheu v. Hughes Tool Co., 569 F.2d 459 (9th Cir. 1977); Orr v. Argus-Press Co., 586 F.2d 1108 (6th Cir. 1978); Brueggemeyer v. Associated Press, 609 F.2d 825 (5th Cir. 1980); Gomba v. McLaughlin, 180 Colo. 232, 504 P.2d 337 (1972); Hein v. Lacy, 228 Kan. 249, 616 P.2d 277 (1980); and Prahl v. Brosamle, 98 Wis.2d 130, 295 N.W.2d 768 (App.1980). See generally Prosser, Law of Torts, ch. 19, § 116 at 798 (4th ed. 1971). We find these decisions persuasive and hold that if an allegedly defamatory statement is substantially true, it provides an absolute defense to an action for defamation.

SUBSTANTIAL TRUTH AS A QUESTION FOR THE COURT

Accordingly, we are left with appellant's assertion that the trial court erred in refusing to allow the issue of the falsity of the editorial statement describing appellant as "doing four-to-five years in prison" to reach the jury. It is appellant's position that the determination of substantial truth is a matter for the trier of fact, while appellees contend that this determination was properly made by the court as a matter of law.

Appellant argues that a jury as a trier of fact could have found that the editorial falsely stated he was "doing four-to-five years in prison" when he was free...