Hayward v. Watsonville Register-Pajaronian and Sun

• Decision Date: 27 August 1968
• Docket Number: REGISTER-PAJARONIAN
• Citation: 265 Cal.App.2d 255,71 Cal.Rptr. 295
• Court: California Court of Appeals Court of Appeals
• Parties: Arthur Leslie HAYWARD, Plaintiff and Appellant, v. WATSONVILLEAND SUN, and Frank F. Orr, Defendants and Respondents. Civ. 24283.

Page 295

71 Cal.Rptr. 295

265 Cal.App.2d 255

Arthur Leslie HAYWARD, Plaintiff and Appellant, v. WATSONVILLE REGISTER-PAJARONIAN AND SUN, and Frank F. Orr, Defendants and Respondents.

Civ. 24283.

Court of Appeal, First District, Division 2, California.

Aug. 27, 1968.

Richard M. Grossberg, Sacramento, for appellant.

James A. Wyckoff, Bruce A. Richardson, Whyckoff, Parker, Boyle & Pope, Watsonville, for respondents.

AGEE, Associate Justice.

This libel action against a Watsonville newspaper and its editor is based upon an article published on April 30, 1964, the day after plaintiff war arrested on a charge of grand theft, of which he was subsequently acquitted by a jury. Plaintiff does not allege malice.

Defendants obtained a summary judgment based upon the privilege or immunity given by statute to a public journal to publish a fair and true report of a judicial proceeding (Civ.Code, § 47, subd. 4). Plaintiff appeals from the judgment.

The article in question is as follows:

'EX-STORE BOSS ARRESTED

'Arthur Leslie Hayward, 42, former manager of a local furniture store, was arrested Wednesday in Sacramento by Federal Bureau of Investigation agents on a grand theft warrant sworn out by the Watsonville police department.

'Hayward is accused of the theft of $3,300 worth of furniture from the Union Furniture Store for which he worked.

'Police said the theft was discovered last spring after Hayward had left here suddenly. Subsequently the store moved to repossess some furniture which he had charged at the store.

'In his home, police said, the additional $3,300 worth of furniture, not charged out on the store's books, was found.

'The FBI was brought into the case after his disappearance. His arrest in Sacramento was on a warrant charging unlawful flight to avoid prosecution, a federal crime.

'Police records show that Hayward previously served a term in a Kansas prison on a check charge.

'He also faces a charge of failure to provide on a complaint issued in Stockton.' (Underlined sentences are those complained of by appellant.)

Appellant's brief states that the article was false and unprivileged in the following four particulars:

1. Appellant 'was not accused of the theft of $3,300 worth of furniture but only of the theft of property of a value in excess of $200';

2. 'The store never 'moved to repossess' any of Mr. Hayward's furniture';

3. 'The furniture in question was not stolen, since there were sales slips in the store';

4. 'Mr. Hayward has never served a term in a Kansas prison or any other prison on a check charge or any other charge.'

Respondent editor's declaration in support of the motion for summary judgment asserts the defenses of truth and privilege and declares that the information upon which the article is based was a criminal complaint, an arrest warrant, and a Watsonville Police Department crime report with an attached FBI Identification Record. These were attached to the declaration as exhibits. In addition a journal entry of the Kansas District Court was appended to the declaration.

The criminal complaint was filed on July 8, 1963 and charges appellant with the theft of certain specified articles of furniture 'belonging to The Union Furniture Company, of the value of over $200.00.' An arrest warrant was issued on the same date.

In a prosecution for grand theft all that the accusatory pleading need allege is that the personal property alleged to have been stolen 'is of a value exceeding two hundred dollars ($200);' (Pen.Code § 487).

Hence, respondents relied upon the crime report to ascertain how much 'over $200.00' was the value of the furniture appellant was charged with stealing. This report stated that the value was 'about $3000.00.' Thus, the article is substantially in accord with the report when it puts the figure at $3,300. (See Kurata v. Los Angeles News Pub. Co., 4 Cal.App.2d 224, 227--228, 40 P.2d 520 re substantial accuracy.)

The second particular is directed to the statement in the article that, 'Subsequently the store moved to repossess some furniture Which he had charged at the store.' (Emphasis added.)

This sentence contains no imputation of theft. The very next sentence, which is the Third particular complained of, states: 'In his home, police said, the Additional $3,300 worth of furniture, Not charged out on the store's books, was found.' (Emphasis added.)

It is thur evident that a distinction was made in the article between the furniture that was charged on the store's books and furniture that was not charged.

The sentence in the article, last quoted above, refers to the 'additional' furniture, which was the furniture that appellant was charged with stealing. It is to be noted that the source of the information is expressly stated, i.e., 'In his home, Police said, * * *.'

The fourth and last particular is: 'Police records show that Hayward previously Served a term in a Kansas prison on a check charge.' (Emphasis added.) This sentence is deserving of more serious consideration. If the words 'had been sentenced' had been used in place of the word 'served' and the word 'forgery' used in place of the word 'check,' there could have been no question as to the accuracy of said sentence.

The information upon which the sentence is based is the following entry in the FBI Investigation Record:

                Name and Number       Arrested or Received   Charge  Disposition
                --------------------  --------------------  -------  ---------------
                Leslie Arden Hayward         7-5-39         forgery  1 to 10 yrs
                                                                     in the K.S.I.R
                                                                     paroled
                

The 'Journal Entry' of the District Court of Rice County, Kansas, shows these facts: that on July 13, 1939, appellant, with advice of counsel, pleaded guilty to a charge of forgery in the second degree; that appellant was thereupon sentenced to be confined in the Kansas State Industrial Reformatory at hard labor for a term of not to exceed ten years; that appellant was placed in the custody of the Sheriff of Rice County until he could be taken to said reformatory; that later, on July 13, 1939, appellant made application for a parole (probation) and this application was granted, to take effect July 24, 1939. The court record does not disclose whether or not appellant spent any time during this eleven-day period at K.S.I.R.

Appellant filed a declaration in opposition to the motion for summary judgment in which he denied, inter alia, the truth of the sentence in question, i.e., he denied that he had ever been convicted on a check charge or served a term in prison.

The trial court ruled that appellant's declaration created a conflict in the evidence and that there was therefore presented a triable issue of fact with respect to the respondents' defense of Truth.

The summary judgment therefore rests solely upon the respondents' defense of Privilege. The privilege claimed is that contained in 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 a public journal' of a judicial proceeding.

Does a Newspaper Article Partially Based Upon the Crime Report of a Police Department and the Attached FBI Identification Record Come Within the Foregoing Privilege?

Preliminarily, we note that appellant does not contend that those portions of the article which are based upon information obtained from the criminal complaint and the arrest warrant are not privileged.

Appellant's complaint is limited to that portion of the article which is based upon information obtained from the crime report of the Watsonville Police Department and the FBI 'rap sheet' which was part of the department's file with respect to the charge against appellant.

The question is therefore whether the privilege in question covers such report and rap sheet where they form the basis for the filing of a criminal complaint and the issuance of an arrest warrant.

The article in question was careful to attribute the reported information to police sources rather than stating it as a proven fact. Thus, it met the requirement that in order to qualify as privileged such an article must state the source of its information. (See Prosser, Torts, 3rd ed. (1964) § 110, p. 819.)

The general policy as to the scope of the matters that come under the privilege accorded to a 'public journal' in reporting a 'judicial proceeding' is stated in Albertson v. Raboff (1956) 46 Cal.2d 375, 380--381, 295 P.2d 405, 409, as follows: '(T)he privilege applies to any publication * * * that is * * * permitted * * * by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked.'

Although there is a dearth of case law in California as to what sources of information may be used by a newspaper in publishing an account of a pending judicial proceeding, the leading case would appear to be Glenn v. Gibson (1946) 75 Cal.App.2d 649, 171 P.2d 118. ¹

There the newspaper obtained its information from many sources. The district attorney and sheriff were quoted repeatedly. As an example, one of the articles stated: "In a joint announcement, Sheriff Thornton and District Attorney Lynch said they will urge the strictest penalty for Glenn." (P. 652, 171 P.2d p. 120.)

After citing Civil Code section 47, subdivision 4, the court said: 'That the articles of which plaintiff complains come within this category likewise seems to be clear. They are shown to comprise a history of the proceedings which * * * were instituted by the filing of a criminal complaint in the justice's court * * * and culminated in court proceedings * * * which were reported in the alleged libelous article * * *. The privileged character of reports of this kind had been recognized in...