Kapellas v. Kofman

• Decision Date: 24 October 1969
• Docket Number: S.F. 22666
• Citation: 459 P.2d 912,81 Cal.Rptr. 360,1 Cal.3d 20
• Court: California Supreme Court
• Parties: , 459 P.2d 912 Richard Dale KAPELLAS, a Minor, etc., et al., Plaintiffs and Appellants, v. Abraham KOFMAN, Defendant and Respondent.

Page 360

81 Cal.Rptr. 360

1 Cal.3d 20, 459 P.2d 912

Richard Dale KAPELLAS, a Minor, etc., et al., Plaintiffs and Appellants, v. Abraham KOFMAN, Defendant and Respondent.

S.F. 22666.

Supreme Court of California,

In Bank.

Oct. 24, 1969.

As Modified on Denial of Rehearing Nov. 19, 1969.

Gonick, Schmid & Bernstein and Louis M. Bernstein, Oakland, for plaintiffs and appellants.

Hardin, Fletcher, Cook & Hayes, Oakland, and Cyril Viadro, San Francisco, for defendant and respondent.

TOBRINER, Justice.

Plaintiff Inez Kapellas filed suit on her own behalf and on behalf of her minor children against defendant Abraham Kofman, owner and publisher of the Alameda Times Star and Times Star Advertiser, ¹ in connection with a published newspaper editorial. The third amended complaint consisted of three causes of action. The first cause sought recovery of general and punitive damages on Mrs. Kapellas's own behalf for alleged libelous material published by defendant in the Alameda Times Star and Times Star Advertiser. The second cause prayed for damages for the alleged libels on behalf of the children of Mrs. Kapellas. The third cause alleged that the editorial constituted an actionable invasion of privacy of Mrs. Kapellas's minor children.

The defendant demurred to the first two causes upon the ground that the editorial was privileged because it concerned the qualifications of one seeking a public office, and upon the further ground that plaintiffs did not allege a sufficient demand for retraction in the manner required by Civil Code, section 48a. As to the third cause of action, defendant demurred upon the basis that the comments did not constitute an actionable invasion of the children's privacy: it contained comments 'regarding persons who were of public interest and were about matters of public interest.' The trial court sustained the demurrer without leave to amend and thereafter dismissed the entire action. Although we concur in the trial court's affirmation of the demurrer as to the third cause of action, we shall point out that the complaint establishes actionable causes in the first two counts.

The case emanates from an editorial ² published on page one of the Alameda Times Star on February 25, 1965, and republished on page three of the Times Star Advertiser on March 3, 1965, discussing certain alleged facts as to Mrs. Kapellas (hereafter designated 'plaintiff'), who was at the time a candidate for the city council.

On March 3, one week after the first editorial appeared in the Alameda Times Star, plaintiff's attorney sent a letter ³ to defendant Abraham Kofman demanding a 'correction' of the article. On March 5 the attorney dispatched an identical letter as to the republication of the editorial in the Times Star Advertiser. Defendant Kofman did not reply to these notices; he neither sought clarification of the demands nor asserted his belief in the truth of the published editorial. Defendant did not retract or correct any of the statements contained in the editorials.

We proceed to explain under separate headings that (1) the allegations of the complaint as to malice defeat defendant's defense of privilege; (2) plaintiffs alleged a sufficient demand for retraction in the manner required by Civil Code, SECTION 48A AND (3)⁴ plaintiffs fail to establish in their third count an actionable cause for an invasion of privacy.

1. The allegations of malice defeat defendant's defense of privilege

Since the instant complaint discloses that the editorial in question commented upon the qualifications of plaintiff, a candidate for the Alameda City Council, the publisher acquired the qualified privilege granted by Civil Code, section 47, subdivision 3. ⁵ (Snively v. Record Pub. Co. (1921) 185 Cal. 565, 571, 198 P. 1.) As we explain, however, defendant fails to establish that the plaintiff's allegations of malice do not suffice to defeat this asserted privilege. (Cf. Locke v. Mitchell (1936) 7 Cal.2d 599, 602, 61 P.2d 922; Harnish v. Smith (1956) 138 Cal.App.2d 307, 310, 291 P.2d 532.) ⁶

Supplementing its concededly conclusory claims that defendant 'wrongfully, wickedly, and maliciously' printed the editorials, the complaint alleges a detailed account of past and continuing conflicts between the defendant and plaintiff. Thus plaintiff first states that defendant's hostility toward her initially arose out of her activities, in 1964, as the leader of a group, 'Alameda Citizens for the Protection of Property Rights,' which organized and led a successful campaign against an urban renewal ballot proposal in the City of Alameda. Defendant allegedly supported the ballot measures and would have realized substantial financial gain if the urban renewal project had been approved.

The complaint further states that one of the candidates opposing plaintiff in the city council election was an 'agent or officer' of a company owned and controlled by the defendant. Additional friction between the parties allegedly resulted from the plaintiff's announced opposition to a series of real estate developments planned for Alameda, developments in which defendant purportedly had invested a significant sum. The complaint finally recounts a conversation in which defendant warned plaintiff that if she did remove herself as a candidate for the city council 'he would print all the 'dirt' he could find concerning plaintiff's family.' As a result of this hostile relationship, the complaint alleges, defendant published the editorial 'well knowing that it was false or with reckless disregard of whether it was false or not.'

This court has in the past consistently held that allegations of malice similar to those set forth above defeated the qualified privilege of section 47. (Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 7 Cal.Rptr. 617, 355 P.2d 265, 87 A.L.R.2d 439; Brewer v. Second Baptist Church (1948) 32 Cal.2d 791, 797--799, 197 P.2d 713; Washer v. Bank of America (1943) 21 Cal.2d 822, 831, 136 P.2d 297, 155 A.L.R. 1338.) In the instant case plaintiff has alleged the presence of detailed facts which would justify the trier of fact in finding that defendant published the editorial primarily because of 'hatred or ill will toward the plaintiff.' (Civ.Code, § 48a, subd. 4(d); see, e.g., Maidman v. Jewish Publications, Inc., supra, 54 Cal.2d 643, 654, 7 Cal.Rptr. 617, 355 P.2d 265; Hearne v. De Young (1901) 132 Cal. 357, 361--362, 64 P. 576; Davis v. Hearst (1911) 160 Cal. 143, 157--163, 116 P. 530.) ⁷ The allegations of malice are thus sufficient to dispatch the defense of the privilege of section 47.

2. Plaintiff alleged a sufficient demand for retraction in the manner required by Civil Code, section 48a

The Legislature enacted Civil Code, section 48a to encourage a more active press by means of an increased insulation of newspapers from liability arising from erroneous published statements. ⁸ The statute represents a significant change from common law libel, ⁹ which at one time permitted a plaintiff libelled even by an innocent misstatement to recover general damages without proving actual injury. (See, e.g., Peck v. Tribune Co. (1909) 214 U.S. 185, 189, 29 S.Ct. 554, 53 L.Ed. 960 (Holmes, J.); Taylor v. Hearst (1895) 107 Cal. 262, 269, 40 P. 392.) Under section 48a an individual cannot recover anything beyond 'special damages' ¹⁰ unless he shows that he has requested, within 20 days after learning of the publication, that the publisher correct the allegedly libelous material, and that the publisher has failed to do so. The section also provides that the request for correction must be made by 'a written notice specifying the statements claimed to be libelous * * *.' ¹¹ Although defendant asserts that plaintiff's notice does not sufficiently or specifically satisfy the terms of the statute, we believe that it does so.

The purpose of the requirement for the described specificity is to facilitate the publisher's investigative efforts in determining whether statements in the initial article contained error and should be corrected. By designating the remarks that the objector considers libelous, a notice may enable the publisher to narrow the scope of his investigation. We recognize, however, that letters written to request retraction of a statement do not compose formal legal complaints; we cannot expect that they will conform to the niceties of common law pleading. In enacting section 48a the Legislature intended to afford publishers an opportunity to correct committed errors before subjecting them to liability; it did not intend to build technical barricades to recovery by the individual who had given notice sufficient to advise a reasonable publisher acting in good faith of the claimed error. The crucial issue in evaluating the adequacy of the notice turns on whether the publisher should reasonably have comprehended which statements plaintiff protested and wished corrected. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 554, 343 P.2d 36.)

The notice in the instant case labelled as libelous, and requested correction of, 'every statement concerning the conduct of the children of Mrs. Inez Kapellas any every statement concerning Mrs. Kapellas' qualifications for the City Council and her suitability as a mother' contained in the specified articles. The first clause of the notice, designating every statement concerning the children's conduct as libelous, is both specific and comprehensible, especially when read in conjunction with the questioned article. The tenth paragraph of the editorial details several instances, appearing on the Alameda police blotter, involving three of the Kapellas children; these are the only statements relating specific actions performed by the children, and the notice's references to statements about the 'conduct' of the children surely was sufficiently clear to inform defendant that it was these pronouncements that were objectionable. Although defendant contends that he could not...