Maidman v. Jewish Publications, Inc.

• Citation: 7 Cal.Rptr. 617,355 P.2d 265,87 A.L.R.2d 439,54 Cal.2d 643
• Parties: , 355 P.2d 265, 87 A.L.R.2d 439 Samuel MAIDMAN, Appellant, v. JEWISH PUBLICATIONS, INC., a Corporation, et al., Respondents. L.A. 25843.
• Decision Date: 16 September 1960
• Court: United States State Supreme Court (California)

Page 617

7 Cal.Rptr. 617

54 Cal.2d 643, 355 P.2d 265, 87 A.L.R.2d 439

Samuel MAIDMAN, Appellant, v. JEWISH PUBLICATIONS, INC., a Corporation, et al., Respondents.

L.A. 25843.

Supreme Court of California, In Bank.

Sept. 16, 1960.

Samuel Maidman, in pro. per., for appellant.

David H. Paltun, Los Angeles, for respondents.

PETERS, Justice.

Plaintiff appeals from a judgment of dismissal entered after defendants' special and general demurrers to the third amended complaint for libel was sustained without leave to amend. The sole issue presented by this appeal is whether plaintiff's complaint states a cause of action for libel against defendants. It does.

Plaintiff's action is based upon an editorial which appeared in the November, 1957, issue of the B'nai B'rith Messenger, a weekly Anglo-Jewish newspaper, published in Los Angeles County and circulated principally within that county by defendant Jewish Publications, Inc. The Messenger was not connected with the B'nai B'rith organization. The editorial commented upon certain statements made by Maidman as an attorney during the course of a trial in the Los Angeles Superior Court, in which Maidman was representing the plaintiff in that action. The editorial was written by defendant Cummins, who is the editor and individual publisher of the Messenger. The other personal defendants are the associate editor and the general manager of the Messenger.

The editorial read as follows:

'An 'Important' Ben B'rith Interprets Rosh Hashanah

'A trial was in progress in the Superior Court of the State of California, Department 5, in Glendale before the Honorable Judge Roger A. Pfaff, entitled Frazier v. Pass. A Gentile attorney was representing two Jewish defendants, and a Gentile plaintiff was represented by attorney Samuel Maidman who is the 'Chairman of the Administrative Board of the B'nai B'rith Record,' the house organ of the Southern California Council of B'nai B'rith Lodges.

'The Gentile attorney, out of respect for his two Jewish clients, asked Judge Pfaff if he could have a continuance for his Jewish clients inasmuch as 'tomorrow' was a Jewish holiday, Rosh Hashanah, and that his clients would like to observe the Jewish holiday.

'Judge Pfaff, knowing the Samuel Maidman is Jewish, asked Mr. Maidman if he had any objections, Whereupon Mr. Samuel Maidman, 'Chairman of the Administrative Committee of the B'nai B'rith Record,' gave the Court this 'profound' and 'learned' discourse on the meaning and value of Rosh Hashanah.

'The following quotations are word for word from the Reporter's Transcript:

"I have that same problem but out of the good book there is a provision which says on a joyous holiday such as a new year people may do a duty, and not do penance. The holiday where I think it is generally observed that we don't observe our daily habits is so far as duties are concerned is Yom Kippur, which is the holiday next week, so if I can serve my client I have a duty which I think the good Lord * * *'

'Then Mr, Maidman let the Court and all of his auditors know that he ought to know something about this matter of the proper observance of Rosh Hashanah since he is the Chairman of the Administrative Board of the B'nai B'rith Record, which is tantamount to 'publisher.'

'After Mr. Maidman's profound interpretation, i. e. that Rosh Hashanah is a 'joyous holiday', Judge Pfaff refused a continuance and the case proceeded right through Rosh Hashanah.

'Of course, even your adolescent children know that Rosh Hashanah is not a 'joyous holiday'; that Rosh Hashanah and Yom Kippur are the two most solemn holidays in the Jewish Year.

'It is reasonable to presume that Judge Pfaff too was under the impression that Rosh Hashanah is a solemn Jewish holiday until he heard Mr. Maidman's garbled exposition on Rosh Hashanah.

'Isn't it too bad that with the hundreds and hundreds of Jews in B'nai B'rith who know something about our Jewish religion, that such an individual is put into a position where he is able to, with ostensible authority, make all of us Jews look ridiculous.

'We wonder whether the thousands of members of B'nai B'rith who observe Rosh Hashanah with solemnity will not simply enthrall over Mr. Maidman's speech hereinabove quoted.'

Maidman alleged that the editorial was entirely false and untrue, except that:

'1. It correctly states that a trial was in progress in the Superior Court of the State of California, Department 5, in Glendale before the Honorable Judge Roger A. Pfaff, entitled 'Frazier v. Pass'; and

'2. It correctly states that a gentile plaintiff was represented by attorney Samuel Maidman who is the chairman of the Administrative Board of the B'nai B'rith Record; and

'3. It correctly quotes a portion of the reporter's transcript of said trial.'

Maidman's complaint also contained the following allegations:

That for more than sixteen years Maidman has been, and still is, an active attorney at law in the county of Los Angeles; that he 'has been and now is widely known as a lawyer and as one who is generally active in community affairs and has enjoyed a good name and reputation in Los Angeles and elsewhere'; that he had been an active leader of B'nai B'rith for many years, having served as the president of his B'nai B'rith Lodge and as chairman, a member of the executive board, and as a member of several committees of the Western District organization of B'nai B'rith; that he had been, and was at the time that this editorial was published, 'an active leader of the Jewish Community of Los Angeles'; that in March, 1955, he was elected chairman of the Administrative Board of the B'ni B'rith Record, a newspaper which is the official publication of the Southern California B'nai B'rith Council; that he was actively engaged in the performance of his duties as chairman of this board for three continuous years, from the date of his election until March 20, 1958; that the editorial is libelous in that it exposed plaintiff to hatred, contempt, ridicule and obloquy and conveyed the impression that Maidman was not worthy of being placed in a position of trust in Jewish affairs or in the Jewish community and was guilty of unprofessional conduct as an attorney; that the editorial was published with malice and with an intent to dafame; that a retraction was demanded but no correction was published.

The allegation of malice is supported by a detailed resume of a long-standing feud between the Messenger and the Record. The two newspapers have battled continuously, in the courts and in their columns, over use of the words 'B'nai B'rith' in their respective mastheads and their respective methods of obtaining advertisers and subscribers. Copies of the correspondence between plaintiff and defendant Cummins and of various editorials which have appeared in the competing newspapers are incorporated into the complaint. These writings indicate that feelings of bitterness and hostility had characterized the relations of the parties for a considerable period of time. It is further alleged that the court incident mentioned in the editorial occurred in September, 1956, and that defendant acquired full knowledge of this incident within two weeks of that time but did not publish or circulate the editorial until more than thirteen months thereafter.

Maidman contends that this complaint states a cause of action for libel per se, and that the trial court erred in sustaining defendants' demurrer. We agree with this contention.

Section 45 of the Civil Code defines libel as 'a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, 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.' Libel per se is defined as 'A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement innuendo or other extrinsic fact, * * *.' Civ.Code, § 45a.

When measured by this test the editorial is unquestionably libelous per se. Maidman concedes that some of the factual statements contained in the editorial are true. But the editorializing upon those facts falls squarely within the statutory definition of libel. Comments, opinions and criticisms may be defamatory even though based upon true or privileged statements of fact. The publisher is liable unless the comments themselves are privileged. See 1 Harper and James, Torts § 5.8, p. 371. 'The Code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation.' Bates v. Campbell, 213 Cal. 438, 441, 2 P.2d 383, 385; see also Tonini v. Cevasco, 114 Cal. 266, 272, 46 P. 103; Schomberg v. Walker, 132 Cal. 224, 64 P. 290; MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 343 P.2d 36; Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 237 P.2d 51; Dethlefsen v. Stull, 86 Cal.App.2d 499, 195 P.2d 56.

The editorial in question could not have any effect other than to cause severe injury to the reputation of a person in Maidman's position. The editorial itself makes it clear that Maidman occupied a position of prominence in the Southern California Jewish community. It specifically states that he was 'the 'Chairman of the Administrative Board of the B'nai B'rith Record,' the house organ of the Southern California Council of B'nai B'rith Lodges.' The effect of this editorial, the whole tenor of which is sarcasm and derision, obviously would, and was intended to, expose Maidman to contempt and ridicule in said community, and would obviously cause him to be shunned and avoided by any who read it.

The editorial is captioned 'An 'Important' Ben B'rith Interprets Rosh Hashanah.' The word 'Important' is set off in quotation marks. When the caption is read in conjunction with the body of ...