Jones v. Calder

Decision Date15 December 1982
Citation138 Cal.App.3d 128,187 Cal.Rptr. 825
Parties, 9 Media L. Rep. 1314 Shirley JONES, et al., Plaintiffs and Appellants, v. Iain CALDER, et al., Defendants and Respondents. Civ. 65403.
CourtCalifornia Court of Appeals Court of Appeals

Haynes & Hume, Paul S. Ablon, Beverly Hills, and Richard Towne, Beverly Hills, for plaintiffs and appellants.

Williams & Connolly, John G. Kester, F. Lane Heard, Washington, D.C., Selvin & Weiner and Paul P. Selvin, Los Angeles, for defendants and respondents.

LILLIE, Associate Justice.

Plaintiffs appeal from an order granting motion to quash out-of-state service of process 1 upon two of the defendants in an action to recover compensatory and punitive damages for libel, invasion of privacy and intentional infliction of emotional distress.

The verified complaint alleges: Defendant National Enquirer, Inc. is a Florida corporation transacting business in California; it publishes the National Enquirer, a weekly periodical of national circulation. Defendant Iain Calder is the editor of the periodical. Defendant John South is a writer employed by the corporate defendant. At all times mentioned, Calder and South acted in the scope of their employment and also acted "by virtue of their own motives as individuals." In the October 9, 1979, issue of the National Enquirer defendants printed and published an untrue and libelous article concerning plaintiffs, Shirley Jones and Marty Ingels. 2 That issue was sold and distributed in the County of Los Angeles, where plaintiffs are well known and enjoy good names and reputations both personally and in their occupations as professional entertainers. In making said publication defendants acted maliciously and with intent to injure, defame and disgrace plaintiffs, place them in a false light, and cause them to suffer humiliation and emotional and physical distress. In their actions directed toward plaintiffs, both before and after publication of said article, defendants caused plaintiffs to suffer great emotional distress. Defendants failed to comply with plaintiffs' demand for publication of a retraction of the defamatory article.

Calder and South are residents of Florida and process was served on them in Florida by mail (Code Civ.Proc., §§ 415.30, 415.40). They appeared specially and moved to quash service of the summons on the ground that the court lacked personal jurisdiction over them. 3 (Code Civ.Proc., § 418.10.) The affidavits of Calder and South in support of the motion state that each is employed by National Enquirer, Inc.--Calder as its president and editor, and South as a reporter; each has his place of business at Enquirer headquarters, located in Florida; neither Calder nor South has ever had an office or place of business in California, or engaged in business there; neither has ever owned assets, obtained employment or had a bank account in California; Calder performed editorial services in Florida in connection with the article which is the subject of plaintiffs' lawsuit, but did not otherwise participate in the preparation of that article; South performed reporting services in Florida in connection with the subject article; in performing their respective services relating to that article, neither Calder nor South was acting in his personal capacity and neither traveled to California.

In opposition to the motion to quash, plaintiffs filed declarations and excerpts from depositions showing: As president and editor of National Enquirer, Inc., Calder's duties "are to oversee just about every function of the Enquirer ... to oversee the whole editorial process." Prior to publication of the allegedly defamatory article concerning plaintiffs, Calder reviewed its evaluation and saw the final page proof form; after publication he determined not to print a retraction. In the three or four years preceding publication of that article, Calder traveled to California only once; that trip was for pleasure, not on business for the National Enquirer. During the same period, South traveled to California more than 20 times on Enquirer business, staying an average of one to two weeks each time. From 1977 to October 1979 Jane Chesis, a California resident, was employed by National Enquirer, Inc. to furnish it with leads for stories. Chesis introduced South to one Bobby Lucas. A year before the subject article was published, South met with Lucas in California on two occasions to discuss possible articles for the Enquirer; during the same period South had 20-25 telephone conversations with Lucas. Lucas provided information for some of the material which appeared in the subject article. By telephone Chesis (in California) supplied South (in Florida) with other material contained in that article. Two or three weeks before the article was published, South telephoned plaintiff Ingels at his home in California and read the article to him; as a result Ingels became emotionally upset and physically ill.

In granting the motion to quash, the trial court (in its memorandum of decision) stated: "From the record in this case, it appears that neither South nor Calder maintained any residence or business office within California. Editor Calder did not enter California nor even make telephone calls into the state during his work on the Ingels article. Reporter South made a few telephone calls into California, including one in which he read the substance of the article to plaintiff Ingels shortly before its publication. In addition, it may fairly be inferred from the record before the Court that Reporter South visited California at least once for purposes relating to the article. The totality of such contacts, in this Court's view, are [sic] insubstantial." The court further determined that in a defamation action such as this, where freedom of the press is involved, "First Amendment considerations should be weighed in the balance of fundamental fairness in resolving whether a state can compel a nonresident defendant to appear and defend an action." The court concluded that such considerations necessitated the granting of the motion to quash.

Plaintiffs contend that the trial court improperly applied a special First Amendment test in determining that the court may not assume jurisdiction over defendants Calder and South. We agree. As authority for its application of such a test, the court cited New York Times Co. v. Connor (5th Cir.1966) 365 F.2d 567, wherein it was held that "First Amendment considerations surrounding the law of libel require a greater showing of contact to satisfy the due process clause than is necessary in asserting jurisdiction over other types of tortious activity." (P. 572. See also Rebozo v. Washington Post Co. (5th Cir.1975) 515 F.2d 1208, 1214-1215; Edwards v. Associated Press (5th Cir.1975) 512 F.2d 258, 266.) This view has been rejected in other federal courts (including those of the Ninth Circuit), which conclude that First Amendment protections are better considered in the context of substantive defenses on the merits than at the initial jurisdictional stage of a defamation proceeding. (Church of Scientology of California v. Adams (9th Cir.1978) 584 F.2d 893, 899; Anselmi v. Denver Post, Inc. (10th Cir.1977) 552 F.2d 316, 324, cert. den., 432 U.S. 911, 97 S.Ct. 2960, 53 L.Ed.2d 1084.) And in California it has been held that newspapers do not enjoy a special preference under the First Amendment in deciding in personam jurisdiction questions dealing with the publication of allegedly tortious material. (Sipple v. Des Moines Register & Tribune Co. (1978) 82 Cal.App.3d 143, 148-150, 147 Cal.Rptr. 59 (hg. den.).) After discussing the concurring opinion of Chief Justice Burger in First National Bank of Boston v. Bellotti (1978) 435 U.S. 765, 796-802, 98 S.Ct. 1407, 1426-1439, 55 L.Ed.2d 707, 730-734, the Sipple court stated: "The conclusion of the Chief Justice that the First Amendment fails to give special protection to the 'institutional press' under a freedom of the press theory parallels the finding that it also fails to give special protection from jurisdiction to defendants whose tortious acts performed out of state arise from exercise of rights arguably protected by the First Amendment. Though the Connor decision, relied on by respondents, appears to give such protection, that decision 'has been widely criticized and disregarded [citations], and appears now to have been discarded by the Fifth Circuit itself [citations].' (David v. National Lampoon, Inc. (D.S.C.1977) 432 F.Supp. 1097, 1100; accord Anselmi v. Denver Post, Inc. (10th Cir.1977) 552 F.2d 316, 324.)" (82 Cal.App.3d at p. 149, 147 Cal.Rptr. 59.)

Inasmuch as defendants Calder and South have no special First Amendment privilege by virtue of their status as employees of the publisher of the allegedly defamatory article herein, the right of a California court to assert personal jurisdiction over them must be determined in accord with traditional principles unaffected by First Amendment considerations.

Code of Civil Procedure section 410.10 permits California courts to exercise jurisdiction over nonresidents "on any basis not inconsistent with the Constitution of this state or of the United States." This statute "manifests an intent to exercise the broadest possible jurisdiction. The constitutional perimeters of this jurisdiction are found in the decisions of the United States Supreme Court." (Michigan Nat. Bank v. Superior Court (1972) 23 Cal.App.3d 1, 6, 99 Cal.Rptr. 823.) As a general constitutional principle, a court may exercise personal jurisdiction over a nonresident individual so long as he has such minimal contacts with the state that "... the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.' " (Internat. Shoe Co. v. Washington (1945) 326 U.S. 310, 316-317, 66 S.Ct. 154, 158, 90 L.Ed. 95, 101-103; Sibley v. Superior Court (1976) 16 Cal.3d 442, 445, 128...

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    ...is liable for the defamation’ ”], quoting Osmond v. EWAP (1984) 153 Cal.App.3d 842, 852, 200 Cal.Rptr. 674;Jones v. Calder (1982) 138 Cal.App.3d 128, 134, 187 Cal.Rptr. 825.) The court in Overstock.com, Inc. explained: “Thus, participating in publication of an article as editor can subject ......
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