Gomes v. Fried

• Decision Date: 01 October 1982
• Citation: 186 Cal.Rptr. 605,136 Cal.App.3d 924
• Court: California Court of Appeals Court of Appeals
• Parties: George GOMES, Plaintiff and Appellant, v. Michael R. FRIED, et al., Defendants and Appellants. Civ. 49576.

Page 605

186 Cal.Rptr. 605

136 Cal.App.3d 924

George GOMES, Plaintiff and Appellant, v. Michael R. FRIED, et al., Defendants and Appellants.

Civ. 49576.

Court of Appeal, First District, Division 3, California.

Oct. 1, 1982.

Christopher D. Burdick, Carroll, Burdick & McDonough, San Francisco, for plaintiff, and appellant.

Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union, Foundation of Northern California, Inc., San Francisco, Stephen R. Barnett, Berkeley, David W. Hettig, San Francisco, for defendants, and appellants.

FEINBERG, Associate Justice.

This action for libel was brought by appellant George Gomes (Gomes), a San Leandro police officer, on the basis of an article written by appellant Ad Fried, the editor of "The Friday Observer" (Observer), a weekly newspaper, published by Ad's son, appellant Michael Fried, doing business as appellant The Observer Publishing Company (collectively Frieds). After a six-day jury trial in which the Frieds were in pro per, the jury returned a special verdict awarding Gomes $20,000 general and $25,000 special damages against the Frieds, as well as punitive damages of $40,000 against Michael and $75,000 against Ad. The court denied the Frieds' motion for a judgment notwithstanding the verdict but conditionally granted a new trial on the issue of damages unless Gomes consented to a reduction of the general damages to $20,000 and the punitive damages to $10,000 against Ad and $5,000 against Michael. Gomes consented to the reduction. The Frieds appeal from the final judgment and the order denying their motion for a judgment notwithstanding the verdict, and Gomes cross-appeals from the conditional order granting the new trial and from the judgment as entered on his consent to the reduced damages. We have concluded that both the judgment and order must be reversed because Gomes did not meet the preconditions of Civil Code section 48a.

We set forth only the facts relevant to the limited questions of law we address on this appeal. The article appeared on the front page of the Observer issue for the week of February 6-12, 1974, and was entitled "HOW GOOD ARE THE SAN LEANDRO POLICE?, An Observer Editorial Comment by Ad Fried." The article (set forth below so far as pertinent) was accompanied by two photographs; the smaller one showed Gomes sitting in his police car with his head tilted to one side, and was accompanied by the following caption: "OFFICER GOMES car shown in the center of the lightly traveled Bristol Avenue (Sunday Afternoon) prowling for traffic violations. His head tilted may suggest something." (Emphasis added.)

The first three paragraphs of the article praised the San Leandro Police Department, and its present and former chiefs.

The article then continued as follows:

"KEEPING THE PEACE"

"Generally speaking, the Police Department does a superb job of keeping peace and providing community law and order. Local police assist the aged, needy and stalled vehicles. Nevertheless, San Leandro police actions should be evaluated as follows:

"(1) Not all, but a few police officers are too officious, having an exaggerated opinion of themselves and are way out of line in performance of their duties. They overact during certain situations.

"(2) Some young officers should show greater respect for the public. They should not "put-down" anybody--just do a job--not fight with citizens, but be courteous to them.

"OFFICERS NOT IMMUNE"

"(3) Officers are not immune from violating the law, just because they're on duty. This includes careless parking, speeding when unnecessary, tailgating other cars, etc.

"(4) The excessive use of force during arrests for minor violations, especially when not required, is just as criminal as any civilian's assault or attack on another.

"(5) The ganging up of police cars behind traffic violators is, not only a waste of the taxpayers money for tying up the extra manpower, but I suggest such "backups" cover other, more violent areas.

" 'GANG-UP' RIDICULOUS"

"(6) The 'gang up'--several police cars, with all lights going, pursuing the same car--when not necessary--scares the wits out of a single violator, male or female, in a ridiculous overdisplay of police force.

"(7) The tailing of cars for many miles constitutes harassment, especially when there is no immediate appearance of any law violation, and the officer pursues the car until he causes the nervous and scared driver to finally commit some violation.

"(8) The excessive speeds, with all sirens and lights going, risking other's lives, when the police car is not in actual pursuit, is illegal and should be avoided.

"PERSONAL EXPERIENCE RECENTLY"

"Last Sunday, while we were calling on a carrier's family on Bristol Avenue (the street had practically no traffic--see pictures elsewhere), and we double-parked for a moment, a squad car (driven by Officer Gomes # 079) came by and began citing us. Shortly thereafter another squad car (driven by Officer Ted Alves # 107) came and double-parked behind my car ... in exactly the same manner for which I was cited.

"When I told Officer Alves that I would like to cite him for what I was cited (a Citizen's Arrest), he replied, 'I can't be cited. I am in the performance of my duty.' I replied...

" 'A CITIZEN'S ARREST?' "

" 'Officer Alves, you are in violation of the parking ordinance and I insist upon citing you. This is a citizen's arrest.' The officer refused to accept my 'Citizen's Arrest.'

"I then offered to personally sign a complaint against the offending driver, but the officers refused to accept the challenge and write it up. In the meantime, Officer Alves remained double-parked for at least 40 minutes.

"Also, while Officer Gomes was writing the ticket for the alleged offense, I noticed that he, himself had violated the law by parking at least 40 inches from the curb (see pictures of same elsewhere ¹ in this issue). I asked Officer Alves to cite his fellow [sic] for this offense. Alves refused.

"OFFICERS' ADDITIONAL VIOLATIONS"

"Now, both officers, Gomes and Alves should be cited for 'conduct unbecoming officers' and 'for failure to perform their duty (function in citizen's arrest)'. We intend to pursue this further by bringing the charges in the Police Department itself or through the District Attorney's office, which will be contacted very shortly.

"... ²

"NEW REQUEST OF POLICE"

"We respectfully ask the proper authorities to insist that San Leandro policemen show more respect for individual rights. Otherwise, the community will deteriorate into a police state and the fearful result of another totalitarian state, Hitler or Stalin style."

The next issue of the Observer corrected an error in the article, to accurately state that Michael, who was driving, rather than Ad, had received the parking ticket from Gomes. The next three weekly editions of the Observer published some of the many letters to the editor that the publication received in response; some were critical, some laudatory.

On October 4, 1974, Gomes filed his complaint seeking special damages of $5,000, general damages of $100,000 and punitive damages of $100,000. The complaint alleged, inter alia, that on or about February 22, 1974, Gomes had served on the Frieds a demand for retraction pursuant to Civil Code section 48a (quoted and discussed in detail below at pp. 611 - 613, typed opinion) and that no retraction had been published.

The trial court instructed the jury that under the First Amendment of the United States Constitution, and extended to state court libel actions by the Fourteenth Amendment, Gomes' conduct as a police officer was subject to the qualified constitutional privilege, fair comment, as first set forth in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The ruling established that in a defamation action brought by a "public official," the plaintiff must prove that the publication was false, and that the publication was with "actual malice," defined as publishing "with knowledge that it was false or with reckless disregard of whether it was false or not." (Id., at p. 280, 84 S.Ct. at p. 726; see also Cox Broadcasting Corp. v. Cohn (1975), 420 U.S. 469, 490, 95 S.Ct. 1029, 1043, 43 L.Ed.2d 328.) On review we must determine whether the above principles were constitutionally applied, "but this does not involve a de novo review of the trial court proceedings wherein the jury's verdict is entitled to no weight." (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 433, 142 Cal.Rptr. 304, cert. den. 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759.) In its specification of reasons for granting the new trial on the issue of damages, the court stated that: (1) there was no basis for punitive damages as the only portion of the article that was not "fair comment" was the front page photograph of Gomes; and (2) Gomes had failed to prove special damages.

Further, the rule of review is that all presumptions favor the order granting a new trial so that such orders are rarely reversed. (See, e.g., Mercer v. Perez (1968), 68 Cal.2d 104, 112-113, 59 Cal.Rptr. 389, 436 P.2d 315; Miller v. National American Life Ins. Co. (1976) 54 Cal.App.3d 331, 345, 126 Cal.Rptr. 731; People ex rel. Dept. of Pub. Wks. v. Hunt (1969) 2 Cal.App.3d 158, 163-164, 82 Cal.Rptr. 546; Osborne v. Cal-Am Financial Corp. (1978) 80 Cal.App.3d 259, 265, 145 Cal.Rptr. 584.)

As it determines both the standard for and scope of our review of the record, we turn first to Gomes' contention that the court erred in applying the New York Times standard because he was not a "public official."

In Rosenblatt v. Baer (1966) 383 U.S. 75, 86 S.Ct. 669, 15 L.Ed.2d 597, the United States Supreme Court rejected state law standards as the basis for determining who is a "public official" (at p. 84, 86 S.Ct. at p. 675). While the court did not define the term, it did say:

"The motivating force for the decision in New York Times was...