Kaelin v. Globe Communications Corp.

• Decision Date: 30 December 1998
• Docket Number: No. 97-55232,97-55232
• Citation: 162 F.3d 1036
• Parties: 27 Media L. Rep. 1142, 98 Cal. Daily Op. Serv. 9387, 99 Cal. Daily Op. Serv. 9387, 98 Daily Journal D.A.R. 13,105 Brian "Kato" KAELIN, Plaintiff-Appellant, v. GLOBE COMMUNICATIONS CORPORATION, a Delaware corporation; Globe International, Inc., a foreign corporation; Jim Fraguela, an individual; and Does 1 through 50, inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1036

162 F.3d 1036

27 Media L. Rep. 1142, 98 Cal. Daily Op. Serv. 9387,

99 Cal. Daily Op. Serv. 9387,

98 Daily Journal D.A.R. 13,105

Brian "Kato" KAELIN, Plaintiff-Appellant, v. GLOBE COMMUNICATIONS CORPORATION, a Delaware corporation Globe International, Inc., a foreign corporation Jim Fraguela, an individual; and Does 1 through 50, inclusive Defendants-Appellees.

No. 97-55232.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 2, 1998.

Decided Dec. 30, 1998.

Gary L. Bostwick, Bostwick & Hoffman, Santa Monica, California, for the plaintiff-appellant.

Amy D. Hogue, Pillsbury Madison & Sutro, Los Angeles, California, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California; Dickran Tevrizian, District Judge, Presiding. D.C. No. CV-96-02935-DT.

Before: FLETCHER, D. W. NELSON, and SILVERMAN, Circuit Judges.

SILVERMAN, Circuit Judge:

One week after O.J. Simpson was acquitted of the murders of Nicole Brown Simpson and Ronald Goldman, the front page of the National Examiner proclaimed the following:

COPS THINK KATO DID IT!

... he fears they want him for perjury, say pals

The cops did not think that Kato Kaelin murdered Brown and Goldman. The publisher of the National Examiner did not believe that they did. Furthermore, its editor testified at deposition that he was concerned that the front page headline did not accurately reflect the content of the article about Kaelin that appeared inside the publication at page 17. We hold that reasonable jurors could find that clear and convincing evidence established: (1) the front page headline falsely insinuated that the police believed that Kaelin committed the murders; and (2) the false insinuation was not necessarily cured by the subheading or by the non-defamatory story about Kaelin that appeared 17 pages away. We also hold that Kaelin produced sufficiently clear and convincing evidence of the newspaper's knowledge of falsity or reckless disregard for the truth of its headline to defeat a motion for summary judgment. We reverse the grant of summary judgment in favor of the publisher and remand for trial.

FACTUAL AND PROCEDURAL BACKGROUND

Brian "Kato" Kaelin became known to the public during the course of the criminal trial of O.J. Simpson as the houseguest at Simpson's estate. Kaelin testified to various events surrounding the killings of Nicole Brown Simpson and Ronald Goldman. Simpson was acquitted of the double murders on October 3, 1995. One week later, the National Examiner, a weekly newspaper published by Globe Communications Corporation, featured the following headline on its cover:

COPS THINK KATO DID IT!

... he fears they want him for perjury, say pals ¹

Inside the paper, on page 17, in large, boldface, capital letters, the following headline appeared over the text of the article:

KATO KAELIN ...

COPS THINK HE DID IT!

... he fears they want him for perjury, say pals

The first four paragraphs of the article read as follows:

Kato Kaelin is still a suspect in the murder of Nicole Brown Simpson and Ron Goldman, friends fear.

They are worried that LAPD cops are desperately looking for a way to put Kato behind bars for perjury.

"We're sure the cops have been trying to prove that Kato didn't tell them everything he knows, that somehow he spoiled their case against O.J.," says one pal. "It's not true, but we think they're out to get even with Kato."

"I'm worried that Kato will get a persecution complex. He'll end up looking around every corner and thinking he sees a cop."

The remainder of the article contained other comments supposedly made by Kaelin's friends regarding the Simpson case. It also contained several references to a book about Kaelin by author Marc Eliot.

In a letter dated October 12, 1995, Kaelin demanded a retraction. Globe refused. Kaelin then filed this libel action against Globe in the Superior Court of California, and Globe removed it to federal court on the basis of diversity of citizenship.

During discovery, John Garton, the news editor of the National Examiner and Globe's designated representative, testified at deposition as follows:

Q. Okay. Did you have any concerns when you saw this headline of September 22nd [the deadline for the article] about the way this headline was framed?

A. I wasn't mad about it.

Q. What do you mean by that?

A. Journalistically I didn't think it was the best headline in the world.

Q. Were you concerned that it implied that Kato had committed the murders or played some role in them?

A. No, I just didn't think it was very accurate to the story. It could have been better.

* * * * * *

Q. Other than what is actually written in Exhibit 2 [prior published articles], any of the things that are in those articles, did the National Examiner have in its possession on September 22nd, 1995 any information that a police officer anywhere thought that Kato Kaelin was involved in Nicole Brown Simpson's and Ronald Goldman's murders?

A. No.

* * * * * *

Q. ... What did you think, on September 22nd, 1995 about what the words "Cops Think He Did It" meant? What is the "it" to which this statement--

A. Perjury.

Q. Perjury?

A. Mm-hmm.

Q. Did you have any concern that a reader might connect the "Cops Think He Did It" with the other information in the article that refers to allegations that Mr. Kaelin was involved in the murders themselves?

A. I was a bit concerned about it, yes, but in fact I thought the second part of the headline coped with that....

Globe filed a motion for summary judgment, claiming, in pertinent part, that Kaelin could not prove that Globe acted with actual malice. Focusing its analysis on the text of the article rather than on the headline, which was the heart of Kaelin's claim, the district court ruled that Kaelin "... has not submitted any evidence which tends to show that Defendants actually doubted the truth of the story or acted in reckless disregard of the truth...." With respect to the headline, the district court stated:

Plaintiff contends that Garton did have a problem with the headline and therefore, there is proof that Defendants acted with malice. However, although Garton did testify in his deposition that he had some concerns with the part of the headline that read "Cops Think Kato Did It" from a journalistic standpoint, he also testified that he thought the other part of the headline, "... he fears they want him for perjury, say pals," coped with that. See Garton Decl., p. 168. While Globe employees might not have acted with the professionalism that would be expected at a more reputable journalistic institution before running the article about Plaintiff, the failure to act reasonably is not enough to establish malice. [Citation omitted]

STANDARD OF REVIEW

We review a grant of summary judgment de novo. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). We must decide, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

A public figure in a defamation case "cannot recover unless he proves by clear and convincing evidence that the defendant published the defamatory statement with actual malice, i.e., with 'knowledge that it was false or with reckless disregard of whether it was false or not.' " Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 510, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991) (quoting New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). The parties do not dispute that Kaelin is a public figure. The question of whether evidence in the record is sufficient to support a finding of actual malice is one of law. Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657, 685, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989). The appropriate summary judgment question is whether a reasonable jury could find, by clear and convincing evidence, that Kaelin has shown actual malice. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-56, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

We must draw all justifiable inferences in favor of Kaelin, "including questions of credibility and of the weight to be accorded particular evidence." Masson, 501 U.S. at 520, 111 S.Ct. 2419. "[T]he plaintiff, to survive the defendant's motion, need only present evidence from which a jury might return a verdict in his favor. If he does so, there is a genuine issue of fact that requires a trial." Anderson, 477 U.S. at 257, 106 S.Ct. 2505.

DISCUSSION

I

Although Kaelin complains about the first sentence of the article on page 17, we assume for the purposes of this appeal that the text of the story is not defamatory. This case is about the headlines, especially the one appearing on the cover. The first issue is whether the headlines alone are susceptible of a false and defamatory meaning and, if so, whether they can be the basis of a libel action even though the accompanying story is not defamatory.

A

As already seen, the front page headline consists of two sentences. The first--"COPS THINK KATO DID IT!"--states what the cops supposedly think. The second--"... he fears they want him for perjury, say pals"--is what Kato's pals supposedly said. These two sentences express two different California courts in libel cases have emphasized that "the publication is to be measured, not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader." Bates v. Campbell, 213 Cal. 438, 2 P.2d 383, 385 (Cal.1931); see also Corman v. Blanchard, 211 Cal.App.2d 126, 27 Cal.Rptr. 327, 332 (1962). Since the publication occurred just one week after O.J. Simpson's highly publicized acquittal for murder, we believe that a reasonable person, at that time, might well have concluded that the "it" in the first sentence of the cover and internal headlines referred to...