New York Times Co. v. Superior Court

• Decision Date: 27 September 1990
• Docket Number: No. S006709,S006709
• Citation: 51 Cal.3d 453,273 Cal.Rptr. 98,796 P.2d 811
• Court: California Supreme Court
• Parties: , 796 P.2d 811, 59 USLW 2284, Prod.Liab.Rep. (CCH) P 12,733, 18 Media L. Rep. 1145 The NEW YORK TIMES COMPANY, Petitioner, v. The SUPERIOR COURT of Santa Barbara County, Respondent; Jerome SORTOMME et al., Real Parties in Interest.

Page 98

273 Cal.Rptr. 98

51 Cal.3d 453, 796 P.2d 811, 59 USLW 2284,

Prod.Liab.Rep. (CCH) P 12,733,

18 Media L. Rep. 1145

The NEW YORK TIMES COMPANY, Petitioner, v. The SUPERIOR COURT of Santa Barbara County, Respondent Jerome SORTOMME et al., Real Parties in Interest.

No. S006709.

Supreme Court of California In Bank.

Sept. 27, 1990.

Price, Postel & Parma, Gary R. Ricks, Judith A. Brown, C. Michael Cooney, Peter M. Tiersma and Kenneth A. Richieri, for petitioner.

No appearance for respondent.

Coffield, Ungaretti, Harris & Slavin, Joseph A. Cari, Michael T. Trucco, Peter J. Wifler and Harold E. Kahn, as amici curiae on behalf of respondent.

Herzfeld & Rubin, Richard L. Ackerman, Michael A. Zuk, Roy D. Goldstein and Seymour W. Croft, for real parties in interest.

Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff and Albert J. Mesaster, Deputy Public Defenders, as amici curiae on behalf of real parties in interest.

EAGLESON, Associate Justice.

We are asked to decide in this case whether the California newspersons' shield law (Cal. Const., art. I, § 2, subd. (b); Evid.Code, § 1070) provides a newspaper publisher with immunity from contempt for its refusal to comply with a civil subpoena for unpublished photographs of an automobile accident on a public highway. The threshold question is whether the term "unpublished information" in the shield law includes information not obtained by a newsperson in confidence. ¹ When we granted review in this case, the Courts of Appeal were in sharp conflict on the question. We recently resolved that conflict in Delaney v. Superior Court (1990) 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934 (hereafter Delaney ), a criminal prosecution in which we unanimously held the shield law's protection is not contingent on a showing that a newsperson's unpublished information was obtained in confidence.

There remains in this case the question of whether the shield law's protection can be overcome in a civil action by a litigant's showing of need for the newsperson's unpublished information. The shield law on its face provides an absolute immunity. In Delaney, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934, we held that, in a criminal proceeding, our state's shield law may nevertheless be overcome by the defendant's showing that nondisclosure would deprive him of his federal constitutional right to a fair trial. There is no similar right in this personal injury action sufficient to overcome the shield law.

This case also raises the procedural issue of whether a newsperson can seek extraordinary writ relief from an adverse trial court ruling under the shield law before a judgment of contempt is entered. As we will explain, the shield law by its own terms provides only an immunity from contempt, not a privilege. Thus, a newsperson's petition for extraordinary relief is premature until a judgment of contempt is entered.

The third issue is whether the shield law allows a trial court to impose sanctions other than contempt, including monetary sanctions under Code of Civil Procedure section 1992. We conclude they are allowed because the unambiguous language of the shield law precludes only the sanction of contempt.

FACTS

Jerome Sortomme and Joyce Sortomme, while traveling in a Volkswagen van, were involved in an automobile accident with another vehicle on a public highway in Santa Barbara County. A news photographer for the Santa Barbara News-Press (the News-Press), acting within the scope of his employment, took several photographs of the accident scene. ² The News-Press does not contend its photographer promised anyone involved in the accident that the photographs would be kept in confidence. Two were published in the newspaper; the remainder were not published.

The Sortommes filed a product liability action against real party in interest Volkswagen of America, Inc. (Volkswagen), seeking recovery for personal injuries, including the loss of one of Jerome's legs. The Sortommes also filed an action against the State of California, alleging negligent highway design.

Volkswagen served the News-Press with a subpoena for production of "all photographs, negatives, notes, [and] letters" in the possession of the News-Press that related to the accident. The trial court quashed the subpoena but ordered the News-Press to compare its unpublished accident Volkswagen moved to compel production of the photographs. The News-Press opposed the motion, arguing that, because it is not a party to the action, its unpublished photographs are absolutely privileged under California's shield law. (Cal. Const., art. I, § 2, subd. (b); Evid.Code, § 1070.) The trial court concluded the News-Press held only a qualified privilege under the shield law and, in an attempt to weigh the interests of all affected parties, ordered the News-Press to produce its photographs for in camera inspection so that the court could determine whether the claim of privilege was outweighed by Volkswagen's right to discover relevant information. ³

[796 P.2d 813] photographs with 15 photographs that had been taken by the California Highway Patrol (CHP) to determine if the News-Press photographs contained any pertinent information not revealed by the CHP photographs. The News-Press did so and informed Volkswagen that the unpublished photographs did contain pertinent information, some of which was not in the CHP photographs. The News-Press concluded, however, that its photographs were of "very little ... additional value" beyond the CHP photographs and refused to provide copies to Volkswagen.

The News-Press petitioned the Court of Appeal for an extraordinary writ and stay of the trial court's order. The Court of Appeal issued a writ of mandate directing the trial court to set aside its memorandum of decision ordering in camera inspection and to enter a new order denying Volkswagen's motion to compel. The Court of Appeal held the shield law provides "absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information."

DISCUSSION

A. The News-Press's petition to the Court of Appeal was premature.

Before turning to the substantive issue of whether Volkswagen is entitled to the unpublished photographs, we must first resolve a procedural matter. The question is whether a newsperson can seek extraordinary writ relief from an adverse trial court ruling under the shield law before the newsperson is adjudged in contempt. In this case, the trial court ordered the News-Press to produce its unpublished photographs for in camera inspection. On the court-ordered date for the inspection, the News-Press sought relief from the trial court's order. In practical effect, the News-Press's petition to the Court of Appeal was an attempt to avoid the possibility of being adjudged in contempt by the trial court. The petition was premature.

Article I, section 2, subdivision (b) of the California Constitution states that newspersons "shall not be adjudged in contempt ... for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public." ⁴ The effect of the immunity-privilege distinction was correctly explained in KSDO v. Superior Court (1982) 136 Cal.App.3d 375, 186 Cal.Rptr. 211 (hereafter KSDO ), in which a radio station and its reporter, defendants in a libel action, sought a writ to prevent the trial court from enforcing an order requiring them to disclose unpublished information. The Court of Appeal explained, "The California shield law ... is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt. This rather basic distinction has been misstated and apparently misunderstood by members of the news media and our courts as well." (Id., at pp. 379-380, 186 Cal.Rptr. 211.) The KSDO court held the shield law did not apply because the defendants had not been threatened with or cited for contempt. As we noted in Delaney, supra, 50 Cal.3d 785, 797, footnote 6, 268 Cal.Rptr. 753, 789 P.2d 934, we agree with the KSDO court, and we reiterate that the shield law provides only an immunity from contempt, not a privilege. Allowing relief before a judgment of contempt would violate the unambiguous language of the shield law. ⁵

                (Italics added.)   The provision's statutory counterpart, Evidence Code section 1070, contains a virtually identical provision.  In Delaney, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934, we reviewed this unambiguous language and the equally clear legislative history of the shield law and concluded that "... the shield law provides only an immunity from contempt, not a privilege."  (Id., at p. 797, fn. 6, 268 Cal.Rptr. 753, 789 P.2d 934.)   We also disapproved all prior decisions to the contrary.  (Ibid.)  [51 Cal.3d 459] Because the shield law provides only an immunity from contempt, there is nothing from which to seek relief until a newsperson has been adjudged in contempt
                

Precontempt relief would also have undesirable practical effects. Such relief would deprive trial courts of the opportunity to decide in the first instance whether the shield law applies to the facts of a case. As we explained in Delaney, supra, 50 Cal.3d 785, 268 Cal.Rptr. 753, 789 P.2d 934, a newsperson claiming the shield law's protection must establish that he meets all the law's requirements. (Id., at p. 805, fn. 17 and p. 806, fn. 20, 268 Cal.Rptr. 753, 789 P.2d 934.) Premature writ petitions would frustrate, and perhaps preclude, this determination. The reviewing courts, in turn, would be hampered. The role of a reviewing court is " 'merely to ascertain whether there was sufficient evidence before the trial court' " to support a contempt adjudication. (In re Buckley (1973) 10 Cal.3d 237, 247, 110 Cal.Rptr. 121, 514 P.2d 1201, quoting In re Ciraolo (1969) 70 Cal.2d 389, 394, 74...