Live Oak Publishing Co. v. Cohagan

• Decision Date: 01 October 1991
• Citation: 286 Cal.Rptr. 198,234 Cal.App.3d 1277
• Court: California Court of Appeals Court of Appeals
• Parties: LIVE OAK PUBLISHING CO. et al., Plaintiffs and Appellants, v. Gladys COHAGAN, Defendant and Respondent. Civ. C008798.

Page 198

286 Cal.Rptr. 198

234 Cal.App.3d 1277

LIVE OAK PUBLISHING CO. et al., Plaintiffs and Appellants, v. Gladys COHAGAN, Defendant and Respondent.

Civ. C008798.

Court of Appeal, Third District, California.

Oct. 1, 1991.

Meyer and Mitchell, Daniel L. Mitchell, Jack Leavitt, Damrell, Nelson and Schrimp, Roger M. Schrimp and Debra A. Hayes, for plaintiffs and appellants.

Brown, Hall, Spatola, Clair & McKinley, Charles R. Spatola and Steven A. Clair, for defendant and respondent.

CARR, Acting Presiding Justice.

In this man-bites-dog story, plaintiff newspaper sued an individual for libel and slander. The trial court sustained a demurrer without leave to amend as to the libel cause of action and granted summary judgment as to the slander cause of action. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On May 25, 1988, the Escalon Times, a small-town newspaper, published articles about each candidate for a local election. The article about candidate Victoria Royster was obviously garbled. Gladys Cohagan ("Cohagan"), a Royster supporter, wrote a letter to the newspaper accusing it of intentionally garbling the article, presumably to influence the outcome of the election. Cohagan included a check to cover the cost of printing her letter as a full-page advertisement. The paper kept her money and printed her letter as an advertisement. Plaintiffs Live Oak Publishing Company, Inc., a California corporation doing business as The Escalon Times, Stanley L. Cook, owner and publisher, Williams P. Camp, general manager, Richard Myers, editor and Tom Mauldin, managing editor (collectively "Live Oak") sued Cohagan for libel. The paper also sued for slander, based on statements Cohagan made to employees of the paper. The court sustained Cohagan's demurrer without leave to amend as to the libel cause of action on the ground Live Oak itself published the libel. Live Oak was given leave to amend the slander cause of action.

Live Oak filed a first amended complaint against Cohagan, realleging both causes of action. Cohagan again demurred and the court overruled the demurrer. Apparently recognizing the impropriety of restating the libel cause of action (Code Civ.Proc., § 436), Live Oak declined to pursue this as a viable cause of action and appeals from the dismissal entered as to the cause of action after the sustaining of the demurrer. ¹

Cohagan moved for summary judgment on the slander cause of action on the ground the statements were protected opinion statements and that there had been no publication of the statements to third parties. Supplemental papers urged Live Oak was a public figure and there was no evidence of actual malice. The motion was granted on this latter ground. Reconsideration was denied.

Live Oak's briefs present issues in a confusing order which we do not attempt to follow. ² We shall first review the order sustaining the demurrer to the libel cause of action, then we shall review the order granting summary judgment as to slander.

I. THE LIBEL CAUSE OF ACTION.

A. The Standard of Review.

A general demurrer admits the truth of all material facts alleged in the complaint. If there is a reasonable possibility the defect can be cured the plaintiffs should be given leave to amend. (Concerned Citizens of Costa Mesa, Inc. v. 32nd Dist. Agricultural Assn. (1986) 42 Cal.3d 929, 936, 231 Cal.Rptr. 727 P.2d 1029.) If there can be no liability as a matter of law the demurrer should be sustained without leave to amend. (Lawrence v. Bank of America (1985) 163 Cal.App.3d 431, 436-437, 209 Cal.Rptr. 541.) As Live Oak was given no leave to amend the libel cause of action in the original complaint, the adequacy of that cause of action may be tested here. (Seidner v. 1551 Greenfield Owners Assn. (1980) 108 Cal.App.3d 895, 901, 166 Cal.Rptr. 803.)

B. Discussion.

The trial court ruled Live Oak could not sue for libel as it had published the allegedly defamatory statement. The demurrer also raised the question of whether the statements were statements of opinion protected under the First Amendment, an issue we do not reach because of our ruling on the publication issue. (But see Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, ----, 110 S.Ct. 2695, 2707, 111 L.Ed.2d 1, 19 [no separate privilege for statements of opinion under First Amendment].)

"Libel is a false and unprivileged publication by writing, ... which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." (Civ.Code, § 45.) An entity other than a natural person may be libeled. (Di Giorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 570-571, 30 Cal.Rptr. 350.)

Typically it is the newspaper which seeks protection from liability for printing a letter to the editor. (E.g., Annot. (1980) 99 A.L.R.3d 573.) But this is not the first time a newspaper or its agents has brought suit for defamation. (E.g. Earl v. Times-Mirror Co. (1921) 185 Cal. 165, 196 P. 57 [publisher and owner]. See Gatley on Libel and Slander (7th ed. 1974) § 64, p. 34 and fn. 17, § 73, pp. 39-40; Odgers, A Digest of the Law of Libel and Slander (5th ed. 1911) pp. 30-31 [journalists, newspaper proprietors]; Wittenberg, Dangerous Words (1947) p. 296 [listing adjudicated libels of editors]; pp. 301-302, 303 [publishing company].)

An advertisement may be held libelous. (Farr v. Bramblett (1955) 132 Cal.App.2d 36, 43, 281 P.2d 372 [advertisement alleging communism subject to retraction provisions of Civ.Code, § 48a]. See New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686, 706 [political advertisement held protected absent actual malice].)

However, a libelous statement is not actionable until it has been published to a third person. (Prosser on Torts (5th ed. 1984) Defamation, § 113, pp. 797-799.) A plaintiff cannot manufacture a defamation cause of action by publishing the statements to third persons; the publication must be done by the defendant. (Shoemaker v. Friedberg (1947) 80 Cal.App.2d 911, 916, 183 P.2d 318 [plaintiff repeated statement, no publication]. Cf. Hellar v. Bianco (1952) 111 Cal.App.2d 424, 244 P.2d 757 [defendant allowed statement to remain on the men's room wall, publication].)

There is an exception to this rule. When it was foreseeable that a defendant's act would result in publication to a third person, the plaintiff may maintain a libel action. (Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71, 75, 256 Cal.Rptr. 71 [defendant liable for foreseeable republication by third party]; 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 478b, p. 562.) In the leading case of Hedgepeth v. Coleman (1922) 183 N.C. 309, 111 S.E. 517, a young boy received a letter accusing him of theft. The court held the sender of the letter must have foreseen the boy would show it to his family. "The sending of libelous matter to a person known by the sender to be blind [or] having sight, to be unable to read, and therefore obliged to have it read by another [is] when read, a publication by the sender, because such exposure of the subject-matter is the proximate result of the writing and sending of the communication. [Citations.] These exceptions are based upon the principle that the act of disclosure arises from necessity. But necessity is not predicated exclusively of conditions which are physical. Necessity may be superinduced by a fear which is akin to duress. A threat may operate so powerfully upon the mind of an immature boy as to amount to coercion; and when an act is done through coercion it is not voluntary." (Id. at pp. 313-314, 111 S.E. 517; see also Bretz v. Mayer (1963) 1 Ohio Misc. 59, 203 N.E.2d 665, 670-671 [letter to clergyman threatening existence of new schismatic church].)

The "coercion" aspect of the exception applies "where the originator of the defamatory statement has reason to believe that the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third person after he has read it or been informed of its contents. [Citations.]" (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 796, 168 Cal.Rptr. 89.)

"The rationale for making the originator of a defamatory statement liable for its foreseeable republication is the strong causal link between the actions of the originator and the damage caused by the republication. This causal link is no less strong where the foreseeable republication is made by the person defamed operating under a strong compulsion to republish the defamatory statement and the circumstances which create the strong compulsion are known to the originator of the defamatory statement at the time he communicates it to the person defamed." (McKinney, supra, 110 Cal.App.3d at pp. 797-798, 168 Cal.Rptr. 89, cited in Mitchell v. Superior Court (1984) 37 Cal.3d 268, 281, 208 Cal.Rptr. 152, 690 P.2d 625.)

This exception has been limited to a narrow class of cases, usually where a plaintiff is compelled to republish the statements in aid of disproving them. Thus, where a derogatory statement is placed in a personnel file, the employee must explain the statement to subsequent employers, who will surely learn of it if they investigate his or her past employment. (McKinney, supra, 110 Cal.App.3d at p. 795, 168 Cal.Rptr. 89; Churchey v. Adolph Coors Co. (Colo.1988) 759 P.2d 1336, 1344-1345 [adopting McKinney rule]; Lewis v. Equitable Life Assur. Soc. (Minn.1986) 389 N.W.2d 876, 886-888 [collecting cases]; Colonial Stores v. Barrett (1946) 73 Ga.App. 839, 38 S.E.2d 306, 307-308 [under wartime regulations worker was required to present his certificate of separation to prospective employers; thus former employer knew defamatory statements placed on the certificate would be republished]. See also Prosser, supra, § 113, p. 802; Annot. (1988) 62 A.L.R.4th 616.) Similarly when an unfavorable statement is placed in a person's credit...