Field Research Corp. v. Superior Court of City and County of San Francisco

• Decision Date: 14 May 1969
• Docket Number: S.F. 22643
• Citation: 453 P.2d 747,71 Cal.2d 110,77 Cal.Rptr. 243
• Parties: , 453 P.2d 747 FIELD RESEARCH CORPORATION et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent; William P. PATRICK, Real Party in Interest.
• Court: California Supreme Court

Page 243

77 Cal.Rptr. 243

71 Cal.2d 110, 453 P.2d 747

FIELD RESEARCH CORPORATION et al., Petitioners, v. The SUPERIOR COURT OF the CITY AND COUNTY OF SAN FRANCISCO, Respondent William P. PATRICK, Real Party in Interest.

S.F. 22643.

Supreme Court of California,

In Bank.

May 14, 1969.

Haizlip, Ring, O'Donnell & Moore and David D. Ring, San Francisco, for petitioners.

No appearance for respondent.

Belli, Ashe, Ellison, Choulos, Cone & Harper, San Francisco, von Beroldingen, Rohde & Noonan, San Rafael, and James D. Rohde, San Francisco, for real party in interest.

TRAYNOR, Chief Justice.

Petitioners Field Research Corporation and its president, Mervin D. Field, seek a writ of mandate to compel the Superior Court of the City and County of San Francisco to vacate its order granting partial summary judgment in an action for damages for defamation. (Code Civ.Proc. § 437c.) The court's order is not appealable. Since petitioners have no 'plain, speedy, and adequate remedy, in the ordinary course of law,' and since the court erred in refusing to permit petitioners to proceed to trial on the issue of general and exemplary damages, the writ will issue. (Code Civ.Proc. § 1086; Souza & McCue Const. Co. v. Superior Court (1962) 57 Cal.2d 508, 20 Cal.Rptr. 634, 370 P.2d 338; Dowell v. Superior Court etc. (1956) 47 Cal.2d 483, 486, 304 P.2d 1009; 3 Witkin, Cal.Procedure, pp. 2541--2542.)

Petitioners' complaint against William P. Patrick, real party interest herein, alleged: Mervin D. Field is the president of Field Research Corporation, which is engaged in devising and conducting public opinion polls and disseminating the results thereof to subscribers. One such poll, released in February 1966 and bearing Mervin D. Field's name, indicated the degree of public preference for three Republican gubernatorial candidates, Ronald Reagan, George Christopher, and William P. Patrick. On five specified occasions Patrick stated in press conferences or interviews with broadcating media that the foregoing poll was inaccurate and dishonest. ¹ The complaint alleged that Patrick's statements were false and made with malice and that petitioners were therefore entitled to recover special, general, and exemplary damages.

Patrick moved for partial summary judgment. Since the statements complained of in paragraphs V, VI, and and VII had been communicated to the public by news media and since no demands for correction had been served on the various media that published the statements, the trial court granted Patrick's motion on the ground that petitioners were precluded from recovering general or exemplary damages for those statements by section 48a of the Civil Code. ²

The petition presents three questions: Does section 48a protect third parties not engaged in the news dissemination industry whose statements are reported to the public by newspaper, radio, or television? Is the section constitutional if so applied? In any event, may petitioners recover general and exemplary damages for defamatory statements published to representatives of news media that did not thereafter publish the statements to the public even though other news media did publish the statements? Since we must answer the first question in the negative we do not reach the other two questions.

Neither the language of the statute nor such extrinsic aids as are available make clear whether or not section 48a applies to third parties not engaged in the business of disseminating news. It was enacted in 1945, replacing a similar statute of equal ambiguity. ³ Section 48a closely resembles, and was probably patterned after a Minnesota statute (Minn.Gen.Stat. 1913, § 7901; now Minn.Stat., § 548.06; see, Uhlman v. Farm Stock & Home Co. (1941), 126 Minn. 239, 148 N.W. 102, 103; Anderson v. Hearst Pub. Co. (S.D.Cal.1954) 120 F.Supp. 850, 853), which applied only to the news media and not to third parties whose statements were communicated to the public via the news media. (Lydiard v. Wingate (1915) 131 Minn. 355, 155 N.W. 212, 213.)

The language of section 48a indicates that the California statute, like the Minnesota statute, does not apply to third parties who are not participants in the publishing or broadcasting enterprise. Although the word 'publication' in the first sentence of that section is used in its legal sense to mean the communication of any defamation, ⁴ the second sentence provides that the demand for correction shall be served upon the 'publisher' or 'broadcaster' and clearly refers to the owner or operator of the newspaper or radio station, rather than the originator of the defamatory statements. (Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 791, 11 Cal.Rptr. 787.)

It does not follow, however, that because the newspaper publisher or radio broadcaster must be served with the demand for correction, section 48a applies only in those situations in which the publisher or broadcaster is himself the defendant or himself originated the defamatory statements.

In Werner v. Southern Cal., etc., Newspapers (1950) 35 Cal.2d 121, 125--134, 216 P.2d 825, 13 A.L.R.2d 252, we held that section 48a could limit its protection to those who engage in the immediate dissemination of news on the ground that the Legislature could reasonably conclude that such enterprises are most often subject to unwarranted claims for excessive damages in defamation suits, that they cannot always check their sources for accuracy and their stories for inadvertent publication errors, and that such enterprises are peculiarly well situated to publish effective retractions.

Subsequently, in Pridonoff v. Balokovich, supra, we recognized that the purpose of section 48a could be circumvented if the section were limited to newspaper publishers and radio broadcasters, and we therefore held that the section protected those who participated in the publication or broadcast, including reporters, columnists, authors, critics, and editors. Otherwise, that section would protect, not those engaged in the rapid dissemination of news, but merely those who owned or operated the facilities for such dissemination; it would protect, not a special form of news reporting, but a special form of investment. If without first demanding and being refused a retraction, plaintiffs could reach behind the publisher or broadcaster and sue instead the offending reporter or other participant, section 48a would serve little purpose and would actively discourage the very free and rapid dissemination of new it seeks to encourage.

Furthermore, as we noted in Pridonoff, there is good reason for the section to designate the publisher or broadcaster as the party on whom notice to retract must be served. (Pridonoff v. Balokovich, supra, 36 Cal.2d at p. 791, 228 P.2d 6; see Werner v. Southern Cal., etc., Newspapers, supra, 35 Cal.2d at p. 133, 216 P.2d 825.) With respect to the defamations that their employees or other participants have caused to be published or broadcast, it is only the publisher or broadcaster who has the power effectively to correct or retract. When a defamatory statement authored by a participant in a publishing or broadcasting enterprise has been published by a newspaper or broadcasting station, it is largely the authority and reputation of the paper or station that gives the statement its credibility. Indeed, many news stories and editorials disseminated by either enterprise do not reveal the identity of the author and are accepted by the public as statements of the enterprise itself. Even when the participant is identified, the weight that the public will attach to his statement may be determined largely by the reputation for truth and impartiality that the enterprise itself enjoys.

None of the reasons for applying section 48a to participants in news media apply to Patrick. At the time he made the statements complained of he was a private citizen and candidate for public office and not a participant in a publishing or broadcasting enterprise. Patrick, as well as the statements he made, were themselves news. The fact that he was seen and his statements heard and recorded by representatives of the news media does not make him a disseminator of news any more than any other person whose activities or utterances are reported by the media thereby becomes a disseminator of news. We realize, of course, that the news value of Patrick's allegations was twofold. He made his accusations as a candidate and public figure. If the charges were true, it would certainly be news that the Field Poll had been 'bought.' There is a significant difference, however, between one who occasionally discovers and makes public an item that is newsworthy and one who, as a daily occupation or business, collects, collates, evaluates, reduces to communicable form, and communicates the news. It is these latter activities that the Legislature sought to protect by section 48a.

The newspapers, radio stations, and television stations that reported Patrick's statements, and on whom notice to retract would have had to be served if section 48a were applicable, could not have corrected or retracted the statements effectively. The media could hardly be required to deny that Patrick made the statements in question, and indeed may have had an independent privilege to publish them. ⁵ At most they could disclaim any responsibility for them. Since they could not speak for Patrick, however, such disclaimers would not mitigate the sting of the alleged defamation.

Since section 48a does...