Kilgore v. Younger

Decision Date18 February 1982
Docket NumberNo. C-250781,C-250781
Citation640 P.2d 793,180 Cal.Rptr. 657,30 Cal.3d 770
Parties, 640 P.2d 793, 8 Media L. Rep. 1886 Gerald Hay KILGORE, Plaintiff and Appellant, v. Evelle J. YOUNGER, as Attorney General, etc., et al., Defendants and Respondents.
CourtCalifornia Supreme Court

James Edward Green, Encino, for plaintiff and appellant.

Fred Okrand, Mark D. Rosenbaum, Terry Smerling, Floyd J. Siegal, Stanley I. Greenberg, Los Angeles, Margaret C. Crosby, Alan L. Schlosser and Amitai Schwartz, San Francisco, as amici curiae on behalf of plaintiff and appellant.

Philip M. Battaglia, Flint & MacKay, Los Angeles, for defendant and respondent Herst Corp.

Robert C. Lobdell, Gibson, Dunn & Crutcher, Robert S. Warren, Robert A. Rizzi, Los Angeles, for defendant and respondent Times Mirror.

George Deukmejian, Atty. Gen., Robert H. Francis, Deputy Atty. Gen., Los Angeles, for defendant and respondent Attorney General.

RICHARDSON, Justice.

Plaintiff Gerald Hay Kilgore appeals from a judgment of dismissal of his action to recover damages for alleged defamation, intentional infliction of emotional distress and invasion of privacy by defendant Evelle J. Younger, as Attorney General of California, and by various news media defendants. We will affirm the judgment.

In his complaint plaintiff alleges that in July 1977, while Attorney General, defendant Younger established an eight-member commission named The Organized Crime Control Commission (Commission) within the California Department of Justice to study organized criminal conspiracies within the state and to assess the effectiveness of existing criminal procedural controls. The Commission conducted private hearings at which it received the testimony of public officials and confidential informants. It also gathered data from "criminal offender record information," as defined in Penal Code section 11075, and "state summary criminal history information," within the meaning of Penal Code section 11105, relating to approximately 292 persons.

On May 2, 1978, the Commission formally delivered to defendant Younger its written report listing the names of 92 persons suspected of involvement in a wide variety of organized criminal activity in the state, including bookmaking, labor racketeering, loan sharking, extortion, theft, fraud, dealing in narcotics, drugs, and stolen property, arson, prostitution, pornography, and murder. Specifically with respect to plaintiff, the report included his name, residence address, picture and the following personal information: "Kilgore owns and operates a wire service in the Los Angeles area that provides information on sporting events to bookmakers in California and throughout the United States. His company has 15 telephones that provide free information concerning sporting events on a 24-hour basis. During 1976, his company had a $590,000 telephone bill. Kilgore has associated with many bookmakers throughout the country and has been convicted of bookmaking in 1962 and 1975. On May 10, 1977 he was sentenced to 14 months in federal prison for conspiracy to commit wire fraud."

On the day the report was delivered, Younger and two Commission members held a press conference during which he distributed copies of the report to members of the news media and announced that he had adopted the report. Plaintiff was identified by name in the Los Angeles Herald Examiner on May 2, 1978, and in the Los Angeles Times on May 3, 1978, as being among the 92 persons included in the commission's report, without tying him to any specific organized criminal activity. Thereafter, plaintiff unsuccessfully sought from the media defendants either a correction or retraction of the stories. (See Civ.Code, § 48a.)

On August 9, 1978, plaintiff commenced this action seeking damages and other appropriate relief for defamation, intentional infliction of emotional distress and invasion of privacy. Named and served as defendants were: Attorney General Younger; the Hearst Corporation, which publishes the Los Angeles Herald Examiner, reporter Mike Quall and publisher Frances Dale; the Times Mirror Corporation which publishes the Los Angeles Times, reporter Bill Farr and publisher Otis Chandler.

Each of the defendants demurred to the complaint on the ground, inter alia, that the publication of the information was privileged. The trial court sustained the demurrers without leave to amend and dismissed the action as to all defendants. (See Code Civ.Proc., § 581, subd. 3.) This appeal followed.

Because we conclude a portion of the opinion of Justice Bernstein for the Court of Appeal, Second Appellate District, Division Five, thoughtfully and correctly treats the issue of the legal efficacy of plaintiff's allegations, we adopt that portion of her opinion as our own. The Court of Appeal opinion, with appropriate deletions and additions, * is as follows:

THE MEDIA DEMURRERS

[ ] [T]he media--that is all defendants except Younger--premised their demurrers on the privilege afforded by subdivisions 4 and 5 of section 47 of the Civil Code: "A privileged publication or broadcast is one made--

"...

"4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof, ...

"5. By a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit." A parallel privilege contained in the Restatement Second of Torts reads in relevant part as follows: "The publication of defamatory matter concerning another in a report of ... a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported." (Id., § 611.)

Clearly, section 47, subdivision 5, provides an adequate basis on which to uphold the trial court's ruling. It cannot be gainsaid that as far as the press was concerned, the news conference was a legally convened public meeting for a lawful purpose to which the public--by way of the media--had been invited. [ ]

Somewhat more troublesome, however, is the accompanying requirement of subdivision 5 that the media articles be "fair and true" reports. Kilgore, of course, takes the position that the newspaper reports are substantially misleading in that they wrongfully imply that he was, and is, "engaged in criminal conspiracies involving murder, unlawful motorcycle gangs, prison gangs, terrorists organized gambling, loan sharking, security thefts, investment frauds, pornography, prostitution and drug trafficking." He maintains that this is neither fair nor true, because while the committee's report may have characterized him as an organized crime figure, it did not suggest that he was now, or indeed had ever been involved in organized underworld activity in the manner and to the extent set forth above.

The media respond by asserting that the protection of the privilege is earned by any report which captures the substance, the "gist" or "sting" of the subject proceedings or documents. (See Hayward v. Watsonville Register-Pajaronian and Sun (1968) 265 Cal.App.2d 255, 71 Cal.Rptr. 462.) Both papers, of course, urge us to uphold the trial court's conclusion that in fact the substance of their reports remained true to Younger's statements and the materials released by him.

In assessing this question, "the publication[s] [are] to be measured by the natural and probable effect [they] would have on the mind of the average reader. [Citations.] The standard of interpretation to be used in testing alleged defamatory language is how those in the community where the matter[s] [were] published would reasonably understand [them]. [Citation.]" (Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 387, 90 Cal.Rptr. 188 [brackets in Court of Appeal opinion].)

Kilgore's attempt to read the reports' delineation of organized criminal activity as pertaining in all respects to himself is unwarranted. In our view, the average reader of either paper would reasonably interpret the articles to imply only that Kilgore was connected in some fashion with organized crime. As we see it, this is exactly the import of Attorney General Younger's release. In other words, we simply do not believe that the average reader would take the articles to intimate that Kilgore was involved in every--or even necessarily more than one--type of organized criminal activity. We hold, therefore, that the papers captured the substance of Attorney [General] Younger's release, and thus that the requirement of section 47, subdivision 5, to wit: that the reports be fair and true, was satisfied as a matter of law. The trial court properly so found. [ ]

As far as the second cause of action for the intentional infliction of emotional distress is concerned, the reasoning which makes such a cause of action subject to the absolute privilege of subdivision 2 of section 47 of the Civil Code, applies with equal force to the privileges contained in subdivision 5 of the same section. (See Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, at p. 579, 131 Cal.Rptr. 592.)

On the other hand, Kilgore's third cause of action, for invasion of privacy, is not grounded on the alleged inaccuracy of the papers' reportage. Rather, it is predicated on the charge "that even if accurate the publication of the facts interferes with his 'right to be left alone.' [Citation.]" (Kapellas v. Kofman (1969) 1 Cal.3d 20, 35, 81 Cal.Rptr. 360, 459 P.2d 912.) With regard to the media, however, Kilgore enjoyed no such rights: By virtue of the release of the report and appendix A thereto, Kilgore's name and alleged criminal involvement became matters of public record. Manifestly, the publication of such "newsworthy" information may not be circumscribed, at least where, as...

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