Handelsman v. San Francisco Chronicle

Decision Date21 September 1970
Citation11 Cal.App.3d 381,90 Cal.Rptr. 188
CourtCalifornia Court of Appeals Court of Appeals
PartiesWilliam D. HANDELSMAN, Plaintiff and Appellant, v. SAN FRANCISCO CHRONICLE, Defendant and Respondent. Civ. 26991.

L. Charles Gay, San Francisco, for plaintiff-appellant.

Cooper, White & Cooper, Sheldon G. Cooper, Charles W. Kenady, Alan L. Fox, San Francisco, for defendant-respondent.

TAYLOR, Associate Justice.

Plaintiff, William D. Handelsman, appeals from a judgment entered on a special jury verdict in favor of defendant, San Francisco Chronicle, in a libel action. Plaintiff contends that: 1) the evidence does not support the judgment that the publication was within the absolute privilege of Civil Code section 47, subdivision 4; 2) the trial court erred in submitting to the jury the question of the application of the privilege; and 3) the trial court committed prejudicial error in refusing his proffered instructions on libel per se.

The basic facts are not in dispute. On May 14, 1966, the Chronicle published an article relating to a complaint filed several days earlier in the Superior Court of San Mateo County against plaintiff and several others, who were also officers of the Military Sea Transportation Union (hereafter MSTU), a local of the Seafarers' International Union of North America (hereafter SIU). The San Mateo complaint alleged two causes of action against plaintiff; the first for conversion of certain moneys owned by the MSTU, and the other for expending money for entertainment, organization and travel without rendering any accounting for it to the MSTU. The entire article is set forth in the footnote below, with the portions particularly complained of italicized. 1

The record indicates that immediately after the filing of the San Mateo complaint, one of the Chronicle courthouse reporters telephoned the city desk to report its contents. The call was transferred to the paper's labor editor, Richard Meister, who, in this capacity, had written about a thousand stories. Meister had the responsibility of determining the newsworthiness of labor events and to rewrite and report labor stories of interest to the general public. On the basis of this experience, Meister decided that the complaint filed against plaintiff was of general interest to the public and, after having the complaint read to him over the telephone, wrote the article which is the subject of this action.

Meister indicated that he translated the legal language of the complaint into lay terms, and that in these terms, 'conversion' was equivalent to 'theft.' On cross-examination, Meister stated that he knew there was a difference between civil and criminal conversion and theft as he had studied these matters in college, but did not think that ordinary laymen would understand and appreciate the technical legal differences between the terms. Meister's testimony that his report of the San Mateo complaint was a normal summary, and was in the style commonly practiced by his profession, was substantiated by an expert.

The matter was submitted to the jury with a special verdict that included the question: 'Was the article published by defendant a substantially fair and true report of the lawsuit filed against plaintiff?' The jury answered this question in the affirmative and judgment was entered thereon. Accordingly, the judgment here rests solely on the defense of privilege. The privilege claimed is that of Civil Code section 47, subdivision 4, which provides, in pertinent part, that a privileged publication is one made by 'a fair and true report in the public journal' of a judicial proceeding.

Plaintiff argues that the trial court erred in letting the jury decide whether the newspaper article containing the term 'theft' was a fair and true report of the substance of the complaint for civil conversion. Plaintiff claims that this question was one of law for the court and, on the facts in this case, should have been determined adversely to the newspaper. The applicable law in California is that whether or not A privileged occasion exists is For the court to decide, while the effect produced by the particular words used in an article and The fairness of the report is a question of fact For the jury (Williams v. Daily Review, Inc., 236 Cal.App.2d 405, 418--419, 46 Cal.Rptr. 135). This was the procedure followed in the instant case. The authorities cited by plaintiff concern situations where the matter was solely one of law because of the procedural posture of the case (e.g., summary judgment or a demurrer) and they have no relevance here.

Plaintiff next contends that as a matter of law the article could not be a fair and true report of the San Mateo complaint as the article did not use the verbatim language of the complaint. The well recognized rule in this state, as elsewhere, is that the alleged defamatory matter must only be substantially in accord with the report in order to be entitled to the privilege of Civil Code section 47, subdivision 4 (Hayward v. Watsonville Register-Pajaronian and Sun, 265 Cal.App.2d 255, 71 Cal.Rptr. 295; Kurata v. Los Angeles News Pub. Co., 4 Cal.App.2d 224, 40 P.2d 520; Mortensen v. Los Angeles Examiner, 112 Cal.App. 194, 296 P. 927). As we indicated in the Watsonville Register case, supra, the reason for the rule is that an exact reproduction could do as much harm to a plaintiff as the reporter's interpretation. As stated in Kurata, supra, at pages 227 and 228, 40 P.2d at page 522: 'It is well settled that a defendant is not required in an action of libel to justify every word of the alleged dafamatory 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. * * * 'If the substantial imputations be proved true, as slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently than the actual truth would.''

Thus, the publication is to be measured by the natural and probable effect it would have on the mind of the average reader (MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 547, 340 P.2d 1; Megarry v. Norton, 137 Cal.App.2d 581, 290 P.2d 571). The standard of interpretation to be used in testing alleged defamatory language is how those in the community where the matter was published would reasonably understand it (Hubbard v. Associated Press (4 Cir. 1941) 123 F.2d 864). In determining whether the report was fair and true, the article must be regarded from the standpoint of persons whose function is to give the public a fair report of what has taken place. The report is not to be judged by the standard of accuracy that would be adopted if it were the report of a professional law reporter or a trained lawyer (Spradlin's Market, Inc. v. Springfield Newspapers (Mo.1966) 398 S.W.2d 859, 866).

There is no authority for plaintiff's contention that a newspaper article reporting a judicial proceeding must indicate every possible interpretation of every word used in a complaint or other legal document. More particularly, plaintiff argues that while the San Mateo complaint involved a civil action, defendant's article, by use of the term 'outright theft,' has unfairly limited the term 'conversion' solely to its criminal import. However, while one may convert property without committing a crime, it does not follow that a civil action for conversion...

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  • Healthsmart Pac., Inc. v. Kabateck
    • United States
    • California Court of Appeals Court of Appeals
    • December 19, 2016
    ...v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 823, 266 Cal.Rptr. 360 ; see Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 385–386, 90 Cal.Rptr. 188 (Handelsman ) [privilege applied to article about complaint filed "several days earlier"]; see also Microsoft Cor......
  • McCoy v. Hearst Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • October 23, 1985
    ...is a question of law for determination by the court, while fairness is a factual question for the jury. (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 90 Cal.Rptr. 188; Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 418-419, 46 Cal.Rptr. 135.) Generally, a repor......
  • Reader's Digest Assn. v. Superior Court
    • United States
    • California Supreme Court
    • November 19, 1984
    ...citing Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224, 40 P.2d 520.)Similarly, the court in Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 90 Cal.Rptr. 188 pursued the definition of "fair and true." There, defendant newspaper published an account of a civil law......
  • Kilgore v. Younger
    • United States
    • California Supreme Court
    • February 18, 1982
    ...the community where the matter[s] [were] published would reasonably understand [them]. [Citation.]" (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 387, 90 Cal.Rptr. 188 [brackets in Court of Appeal Kilgore's attempt to read the reports' delineation of organized criminal ac......
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7 books & journal articles
  • Defamation
    • United States
    • James Publishing Practical Law Books Archive Model Interrogatories. Volume 2 - 2014 Contents
    • August 14, 2014
    ...is a question of law, the fairness of the report is treated as a question of fact. (See Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 386.) The interrogatories set forth in this section explore the defendant’s contentions regarding the essential elements of this absolute p......
  • Defamation
    • United States
    • James Publishing Practical Law Books Model Interrogatories - Volume 1
    • April 1, 2016
    ...is a question of law, the fairness of the report is treated as a question of fact. (See Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 386.) The interrogatories set forth in this section explore the defendant’s contentions regarding the essential elements of this absolute p......
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    • United States
    • James Publishing Practical Law Books Archive Model Interrogatories. Volume 2 - 2014 Contents
    • August 14, 2014
    ...is a question of law, the fairness of the report is treated as a question of fact. (See Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381.) The interrogatories set forth in this section explore the defendant’s contentions regarding the essential elements of this absolute privil......
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    • United States
    • James Publishing Practical Law Books Discovery Collection. James' Best Materials - Volume 1 Model Interrogatories
    • April 29, 2015
    ...is a question of law, the fairness of the report is treated as a question of fact. (See Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381.) The interrogatories set forth in this section explore the defendant’s contentions regarding the essential elements of this absolute privil......
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