Howard v. Southern Cal. Associated Newspapers

• Decision Date: 16 January 1950
• Citation: 95 Cal.App.2d 580,213 P.2d 399
• Court: California Court of Appeals Court of Appeals
• Parties: HOWARD v. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS et al. Civ. 16956.

Page 399

213 P.2d 399

95 Cal.App.2d 580

HOWARD v. SOUTHERN CALIFORNIA ASSOCIATED NEWSPAPERS et al.

Civ. 16956.

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

Jan. 16, 1950.

Paul S. Crouch, Los Angeles, for appellant.

O'Melveny & Myers, Jackson W. Chance, Deane F. Johnson, Los Angeles, for respondent Southern California Associated Newspapers.

Aubrey N. Irwin and Henry Melby, Glendale, for respondents Donald E. Close and W. E. Close.

SHINN, Presiding Justice.

On July 16, 1948 an election was pending in the City of Glendale for the removal from office of certain city officials. Plaintiff Howard was chairman of the committee sponsoring the recall. Glendale NewsPress, a newspaper published in Glendale by Southern California Associated Newspapers, was opposed to the recall. Its columns were open for the expression of the views of the contending factions. Donald E. Close, a minor, the son of W. E. Close, allegedly acting in concert with his father, expressed certain views concerning the recall movement in a letter which was published by the newspaper. ¹ Plaintiff thereupon sued the newspaper, Donald E. Close and W. E. Close for libel, alleging that the statements were false and were published with actual malice. The three quoted writings were attached to the complaint as exhibits. The original complaint contained no allegation of special damage suffered by plaintiff. Demurrers of defendants were sustained with leave to amend. An amended complaint was filed which also failed to allege special damage. Demurrers to the amended complaint were sustained without leave to amend and although a single judgment would have sufficed, separate judgments of dismissal were entered in favor of the defendants. Plaintiff appeals.

Since the case arises on demurrer, we shall assume the sufficiency of the complaint to allege that the statements published by defendants were both false and unprivileged. Although plaintiff's demand for a retraction related only to the last two sentences of the article the complaint alleged the falsity of the entire publication. We shall discuss, chiefly, the statements embraced within the demand. As to the remainder of the article we shall say, only, that it clearly was not defamatory. It is therefore unnecessary to pass upon the contention of the defendants that a claim of libel in such a case is limited to the statements specified in the demand for retraction.

'Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.' Civ.Code, sec. 45a. Special damages are 'all damages which plaintiff alleges and proves that he has suffered in respect to his property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves he has expended as a result of the alleged libel, and no other'. Civ.Code, sec. 48a, subd. 4(b). If the person claiming to have been libeled, within 20 days after knowledge of the publication, demands a retraction specifying the statements claimed to be libelous and if the publisher fails for three weeks after the demand to publish a correction in substantially as conspicuous a manner as the allegedly libelous statement, recovery may be had of general, special, and, in proper cases, exemplary damages. Unless demand is made and no proper retraction is published the plaintiff can recover only special damages. Civ.Code, sec. 48a(1).

Since the complaint seeks only general damages, the questions are presented whether the publication was libelous on its face and, if so, whether the retraction was sufficient.

The questioned article must be examined with certain general principles in mind. Whether a publication is libelous per se is a question of law. Peabody v. Barham, 52 Cal.App.2d 581, 584, 126 P.2d 668.

In determining whether or not it is libelous, the article must be read as a whole in order to understand its import and the effects which it was calculated to have upon the minds of those who read it. Blake v. Hearst Publications Incorporated, 75 Cal.App.2d 6, 11, 170 P.2d 100.

If it can reasonably be given an innocent and harmless interpretation and meaning it is not libelous per se. Washer v.Bank of America, 21 Cal.2d 822, 828, 136 P.2d 297, 155 A.L.R. 1338; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 538-539, 186 P.2d 737.

Publications by which it is sought to convey pertinent information to the public in matters of public interests are permitted wide latitude. In controversies of a political nature, in particular, the circumstances often relieve statements, which might otherwise be actionable, of possible defamatory imputations. Mere expressions of opinion or severe criticism are not libelous if they clearly go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny, even though they may adversely reflect upon the public activities or fitness for office of individuals who are intimately connected with the principal object of the attack. Babcock v. McClatchy Newspapers, supra; Eva v. Smith, 89 Cal.App. 324, 264 P. 803; Taylor v. Lewis, 132 Cal.App. 381, 22 P.2d 569; Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 121 P.2d 761; Wilson v. Stockholders Pub. Co., Inc., 4 Cal.2d 724, 52 P.2d 913.

These familiar rules have direct application to elections for the recall of public officials. See Maher v. Devlin, 203 Cal. 270, 263 P. 812, recall of mayor and city council; Taylor v. Lewis, supra, recall of city councilman.

The statements of the portion of the article protested by plaintiff were prefaced by a reference to the parking meter issue and to the asserted fact that the sponsors of the recall had made no specific charges or accusations against the officials. It was asserted that no 'pointed' charges of misconduct had been made against the councilmen, no proof offered to connect them with the 'deplorable' conditions which plaintiff claimed to exist, and that plaintiff had conceded as much. The concluding paragraph, which assumed the truth of the preceding statements, appears to be only an expression of the opinions and views of the author respecting the merits of the recall movement. It was devoid of statements of fact. It denounced the recall movement, calling it 'illegitimate,' 'a mala fide attempt' to discredit the officials, a 'sinister movement,' and it referred to the recall committee as a 'disgrace to Glendale,' and as a 'dangerous and unjust element' that must be destroyed by defeating the recall. Considered with the preface, as the author said it should be, the final paragraph merely enlarged upon the idea that no sufficient cause was being advanced for the recall of the councilmen. The justness and good faith of the recall were questioned without any words casting doubt upon the character of the members of the recall committee or the integrity of their actions apart from their active support of the recall.

In the words of the court in Taylor v. Lewis, 132 Cal.App. 381, 386, 22 P.2d 569, 572, the article '* * * does not charge any thing that would follow appellant into his private life and stamp him as dishonest or bring upon him in the capacity of a private citizen the contempt of his fellows', etc. This, we take to be a proper test on a charge of libel of words spoken or written concerning those who are participating...