Montandon v. Triangle Publications, Inc.
| Decision Date | 12 March 1975 |
| Citation | 120 Cal.Rptr. 186,45 Cal.App.3d 938 |
| Court | California Court of Appeals Court of Appeals |
| Parties | , 84 A.L.R.3d 1234 Pat MONTANDON, Plaintiff and Respondent, v. TRIANGLE PUBLICATIONS, INC., dba TV Guide, Defendant and Appellant. Civ. 33146. |
Cooper, White & Cooper, James J. Brosnahan, Neil L. Shapiro, San Francisco, for appellant.
Charles O. Morgan, Jr., San Francisco, for respondent.
Defendant appeals from judgment of the San Francisco Superior Court after a jury verdict in favor of plaintiff.
1. The article was libelous.
2. There was proof of malice.
3. Civil Code section 48a, does not apply to magazines.
Plaintiff filed an action against defendant Triangle Publication, Inc. (hereinafter 'Triangle'), the owner and publisher of TV Guide for libel by reason of an insertion hereinafter described appearing in that publication of September 14, 1968.
Defendant answered denying liability and setting up certain affirmative defenses. A first trial by jury resulted in a mistrial as the jury failed to reach a verdict. 1 Thereafter a jury rendered a verdict in favor of plaintiff and against Triangle in the sum of $150,000.00 compensatory damages and $1,000.00 punitive damages. Triangle appeals.
This litigation arose because in the TV Guide available for sale at newsstands on September 9, 1968, there appeared the listing for the 'Pat Michaels Show' scheduled to be seen on September 20, 1968, hereinafter discussed.
It is unnecessary to detail the evidence showing that Miss Montandon is a public figure and a person of general newsworthiness. Plaintiff has never claimed otherwise. In September of 1968 'How to Be a Party Girl,' a book which plaintiff had authored about party giving, was about to be released to the public. To promote the book her publicity agent arranged for plaintiff to appear on a number of television and radio programs, including the Pat Michaels show. Unbeknownst to both the agent and Miss Montandon, the producer and the host of the show decided to have an anonymous prostitute on the show with Miss Montandon. This information was not conveyed to the latter.
To publicize the show the producer wrote the following release and sent it to the various media for publication, including TV Guide:
The employee of TV Guide in charge of writing that material for the publication changed the release, which was her usual practice. The article as rewritten by Jane Young stated:
However, the copy as ultimately printed by TV Guide did not have in it 'discusses her book.' Thus the article as finally written read:
This article was published in TV Guide's special issue, the 'Fall Preview,' which had a paid circulation of 800,000 and a complimentary issue of 20,000 copies distributed primarily in the Bay Area and the central parts of California.
The editor of the Northern California edition of TV Guide was Tom Dorsaneo. Dorsaneo had several programmers working for him, each of whom had specific television stations assigned to her and would prepare the copy coming in from her assigned stations. On Thursday of the week in question, programmer Jane Young received a press release from KTVU-TV, Channel 2, containing promotional descriptions of five different television programs. It included the press release written by the producer of the Pat Michaels' Show quoted above.
Jane Young rewrote the press release as before stated. She testified that after rewriting the release, she believed that she forwarded it to Dorsaneo for approval, as this was her usual practice. Although the news release had not contained the phrase 'discusses her book.' she added those words on the assumption that any author appearing on a television discussion program would at least briefly discuss her book. Mrs. Young also testified that her deletion of any reference to the masked, anonymous prostitute was, to her, not significant because it was the ordinary procedure in talk-discussion shows not to list all guests. She also stated that one reason she eliminated the reference was because she did not want to use the word 'prostitute' in TV Guide.
It was Dorsaneo's responsibility to check all copy before it went to the printers and also to see that the copy contained no untrue statements. Dorsaneo testified that he believed he deleted a phrase from the rewritten program note, but was not sure if the phrase which he deleted was 'discusses her book.' He stated that if anyone had deleted the phrase, it would have been he.
Mrs. Young and Dorsaneo testified that the program note was again checked or proofread at the printing plant on Friday night.
Dorsaneo testified that part of his job with TV Guide was to look for defamatory material and make certain that someone was not characterized as a call girl. He stated that at the time he reviewed it, he interpreted the program note to mean that Channel 2 was going to have its usual Pat Michaels' Show; that the guest would be Pat Montandon; and that the discussion topic would be 'From Party Girl to Call Girl.'
He testified it was his experience that when a person was listed who was going to talk on a subject, the reader assumed that person had some experience or knowledge of the subject. He said that his understanding of the program note was that Pat Montandon would be talking about 'From Party Girl to Call Girl' (meaning going from a party girl to a call girl), and because of the book which she had written, she would be discussing that aspect of the topic which concerned the 'party girl.' He assumed that the readers would interpret the note in the same manner.
Dorsaneo testified that when he received the program note he did not interpret it to mean plaintiff had gone from a party girl to a call girl and he did not feel that the note said or implied that Miss Montandon was a call girl. Nor at the time he testified did he feel that the average reader would think the program note as printed in TV Guide called the plaintiff a call girl.
The program note as published was substantially different from the release. The deletion of a question mark caused 'From Party Girl to Call Girl' to become a statement, as opposed to a question. And, deletion of any reference to the masked anonymous prostitute implied that plaintiff would be the only guest on the show to discuss the topic. This is not a case where the magazine personnel could have been mistaken about the true facts, as the true facts were plainly stated in the Channel 2 release.
The very nature of the discussion topic-caption 'From Party Girl to Call Girl (?)' should and must have alerted Young and Dorsaneo to be wary of possible libel by incorrectly labeling or implying that someone was a call girl. Both Young and Dorsaneo testified that they did not interpret, nor did they believe the average reader would interpret, the published program note as relating the plaintiff to a call girl or labeling her as a call girl. This testimony flies in the face of reason, as a reading of the program note reveals.
The action by the TV Guide staff showed a reckless disregard of whether the statement published was true or false, because the staff was aware that the true facts, as stated in the press release, were that Pat Montandon was not a call girl but would be appearing on a show with a call girl; and a staff decision was made to leave out crucial facts in rewriting the release, thereby implying that plaintiff was a call girl. This is proof of convincing clarity to support the jury's verdict that the article was published not in good faith, but with actual malice.
Professor Arthur E. Hutson, Professor Emeritus of English from U.C. Berkeley, testified that in his opinion the average reader would conclude from the article that Miss Montandon had progessed from being a party girl to being a call girl, with party girl meaning a girl who likes to give and go to parties and a call girl being a prostitute. No contrary expert evidence was introduced. There was evidence of other similar interpretations of the article by a newspaper society editor, a bank vice president, two producers in the television industry and a young fan of plaintiff. Miss Montandon, because of the article, did not appear for the TV show and it never took place.
Both Jane Young, the programmer who originally rewrote the Channel 2 news release, and Tom Dorsaneo, the TV Guide regional editor, agreed that the discussion topic 'From Party Girl to Call Girl' meant how far a party girl could go before she became a call girl, and that Miss Montandon was the only listed guest. The news release was changed so substantially by Triangle as to radically change its meaning.
TV Guide did not truthfully report the press release from Channel 2. TV Guide, through its employees, decided not to tell the public that another guest was to be on the show to discuss the subject. This was done knowingly and not because of any space problems. No adequate reason was given for the omission. Both of the involved employees of TV Guide acknowledged that, as written by them, the article conveyed the impression that Miss Montandon was to be the only guest to discuss the subject of 'how far can a party girl go before she becomes a call girl.' This could be considered a knowing...
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