Kanarek v. Bugliosi

• Citation: 166 Cal.Rptr. 526,108 Cal.App.3d 327
• Parties: , 6 Media L. Rep. 1864 Irving A. KANAREK, Plaintiff and Appellant, v. Vincent T. BUGLIOSI et al., Defendants and Respondents. Civ. 56558.
• Decision Date: 17 July 1980
• Court: California Court of Appeals

Page 526

166 Cal.Rptr. 526

108 Cal.App.3d 327, 6 Media L. Rep. 1864

Irving A. KANAREK, Plaintiff and Appellant, v. Vincent T. BUGLIOSI et al., Defendants and Respondents.

Civ. 56558.

Court of Appeal, Second District, Division 4, California.

July 17, 1980.

Hearing denied October 3, 1980.

Lascher & Wilner, and Edward L. Lascher, Ventura, for plaintiff and appellant.

Steinberg & Bugliosi, and Robert K. Steinberg, Beverly Hills, for defendants and respondents.

WOODS, Associate Justice.

On this appeal we consider the propriety of an order sustaining without leave to amend the demurrer to a complaint on the ground that the action is barred by the doctrine of res judicata. Plaintiff, Irving A. Kanarek, has appealed from the order dismissing his action following the sustaining of that demurrer. The action concerns allegedly libelous statements made by defendant, Vincent T. Bugliosi, concerning plaintiff, in defendant's book, "Helter Skelter." Codefendants are the co-author and publishers of that book.

I

A brief history of the events leading up to this litigation is required before we can address the issues presented here. In 1970, defendant, Vincent T. Bugliosi, was assigned by the District Attorney of Los Angeles County to prosecute the murder charges against Charles Manson and several codefendants. Plaintiff Kanarek was hired by Charles Manson to represent him in that trial. In 1974, defendants caused to be published a work of purported nonfiction entitled "Helter Skelter" chronicling the crimes and the trial.

In September 1975, plaintiff filed a defamation action against defendants alleging that numerous references to plaintiff in said book were defamatory. That complaint referred to and incorporated by reference the entire recently published hardcover edition of the book. Respondent Bugliosi demurred to plaintiff's complaint, which demurrer was heard and argued on March 16, 1976. The court entered the following order: "General demurrers sustained. 45 days leave to amend; Thereafter; 45 days to plead. Grounds: Demurrer paragraph 1 through 5. (P) Special demurrer off calendar." Thereafter, numerous documents were filed with respect to discovery matters and in an effort to set aside the court's ruling on the demurrer. The first amended complaint was not filed within the allowed time. Defendants' motion to dismiss the complaint for failure to amend within the time was granted on July 8, 1976, and plaintiff's action was ordered dismissed on that date. Plaintiff's subsequent motion to set aside the order of dismissal was denied October 1, 1976. Plaintiff appealed from that judgment of dismissal, but the appeal was subsequently dismissed for failure to post the fee for the clerk's transcript on appeal.

In the meantime, on September 17, 1976, plaintiff's complaint in the within action was instituted. That complaint, which was amended voluntarily on October 5, 1977, alleges that plaintiff was defamed in the paperback edition of "Helter Skelter," published in October 1975. Defendant Bugliosi's demurrer to that complaint was sustained with leave to amend.

Plaintiff's second amended complaint for libel was filed March 10, 1978. ¹ Demurrers to that complaint were filed, alleging, inter alia, the bar of res judicata and collateral estoppel. The court heard argument on those demurrers on September 15, 1978; the demurrers were sustained on the ground that the prior order of dismissal was res judicata. Plaintiff's action was dismissed as to all defendants, and this appeal ensued.

I

Appellant contends that the court erred in ruling that the judgment in the first action was a bar to the commencement of the second action. In dismissing the second action, the court found that both the first and second complaints were based on identical passages in the book "Helter Skelter," which passages were alleged to be defamatory. The court said in its order: "There is no substantial difference in the two, although it is claimed that here the cause of action alleged is grounded on the paper back edition rather than the hard cover edition, a distinction without a substantial difference." The court concluded that the general demurrer to the first complaint was sustained on a substantive ground: "(T)he insufficiency of the referenced passages to constitute defamation." The order concluded: "(W)hat is alleged to have been defamatory is what was said in the book, the pleading of which has been held to be defective in substance to state a cause of action for libel. That judgment is res judicata."

1 Appellant contends that the court erred in its ruling in two significant respects: (A) In failing to find that the publication of the paperback edition gave rise to a new and distinct cause of action; and (B) in finding that the dismissal of the first complaint was a dismissal on the merits, rather than a technical or procedural dismissal based on plaintiff's failure to amend his complaint within the time allowed.

II

In 1955, California adopted the Uniform Single Publication Act, at Civil Code section 3425. Respondents contend that the language of section 3425.3 prohibits the institution of a new action based upon the paperback publication. That section provides in pertinent part as follows: "No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine . . . ."

At issue here is whether the republication of a hardcover book in paperback form is a new issue of that book so as to give rise to a new cause of action. No California case precisely on point has been discovered. But our study of the history of the statute and its purpose leads us to conclude that all copies of the hardbound first edition of the book gave rise to one cause of action; the republication of that book in paperback form is a new "issue." In Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 288, 49 Cal.Rptr. 625, 628, the court explained: "The purpose of the statute is to abrogate the former rule, under which the sale of each copy of a newspaper or other publication containing libelous matter was deemed to give rise to a separate cause of action. (Citation.) The result of the former rule was to grant a litigant claiming to have been libeled, countless separate causes of action, together with virtual immunity from the bar of any statute of limitations."

1 The cases in California and elsewhere which have evaluated the Uniform Single Publication Act demonstrate that the act was not designed to give unending immunity for repeated publications of libelous matter. It was designed, however, to protect a publisher who prints numerous copies of libelous matter, which copies are then distributed over a substantial period of time. A new cause of action for libel does not arise each time a new reader purchases the material. The protection of the act is not extended, however, to situations where, knowing that matter is allegedly libelous, the defendant republishes. In Church of Scientology of Cal. v. Dell Publishing Co., Inc. (N.D.Cal.1973) 362 F.Supp. 767, defendants published a book containing allegedly libelous material. After receipt of a letter of complaint from plaintiff, concerning the hardcover edition, defendants republished the book in identical, but paperback, form. The court found that evidence of the republication could be admissible on the issue of malice. (See also Karaduman v. Newsday, Inc. (1979) 71 A.D.2d 411, 422 N.Y.S.2d 426, 427-428.)

In Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895-896, 118 Cal.Rptr. 370, 382, the court noted, at footnote 14: "California has adopted the Uniform Single Publication Act, Civil Code section 3425.3, . . . Therefore, the cause of action for invasion of privacy accrued upon the initial distribution of the textbook. (Citation.) However, it should be pointed out that if defendants reprint the textbook they may cause the statute of limitations to start running again from the date of reprinting." (To the same effect see Wheeler v. Dell Publishing Co. (7th Cir. 1962) 300 F.2d 372; Gregoire v. G. P. Putman's Sons (1948) 298 N.Y. 119, 81 N.E.2d 45.) In the Restatement of Torts Second section 577A, in its comment on the subsection referring to the publication of a book, the authors observe: "The single publication rule . . . does not include separate aggregate publications on different occasions. . . . In these cases the publication reaches a new group and the repetition justifies a new cause of action."

In this case, the book "Helter Skelter," although identical in form and content to the hardcover edition, was republished in paperback form. It was undoubtedly intended to and did reach a new group of readers. The filing of a new action for damages based on libel is not barred by the Uniform Single Publication Act.

IV

Appellant argues quite convincingly that the first action was dismissed on procedural, rather than substantive grounds. The record supports this conclusion. It is clear that the order of dismissal of the first complaint was entered because plaintiff failed to amend within the time allowed. The respondents' motion to dismiss the complaint was based on appellant's failure to amend within the time granted by the court. In his motion to set aside the dismissal, appellant explained that the first amended complaint had been prepared, but not filed, because the parties were attempting to reach a settlement of the action. Respondents' attorney, in opposition to the motion, admits that some settlement negotiations were under way, but asserts that no assent was given to an extension of time within which to file the amended complaint. Appellant's first amended complaint was in fact filed on the date that the order of dismissal was granted. The declarations of the parties in support of, and opposition to, the motion...