Newspapers v. Superior Court of Sacramento Cnty.

• Decision Date: 29 May 1945
• Docket Number: Sac. No. 5660.
• Citation: 26 Cal.2d 386
• Parties: McCLATCHY NEWSPAPERS (a Corporation), Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent.
• Court: California Supreme Court

26 Cal.2d 386

McCLATCHY NEWSPAPERS (a Corporation), Petitioner, v. THE SUPERIOR COURT OF SACRAMENTO COUNTY, Respondent.

Sac. No. 5660.

Supreme Court of California. In Bank

May 29, 1945

Alex J. Ashen, Theo. J. Roche, Downey, Brand & Seymour and Sullivan, Roche, Johnson & Farraher for Petitioner.

Malcolm C. Glenn in pro. per. for Respondent.

Otis D. Babcock, in pro. per., John L. Brannely, William A. White, McCutchen, Thomas, Matthew, Griffiths & Greene,Allan P. Matthew and Sherrill Halbert for the real party in interest.

GIBSON, C.J.

Petitioner, who is the defendant in an action pending before the Superior Court of Sacramento County entitled Babcock v. McClatchy Newspapers, a corporation et al., seeks a writ of mandate directing respondent court to set aside orders discharging an order to show cause why the plaintiff in that action should not be compelled to answer certain questions and complete his deposition, denying petitioner's motion for an inspection of documents under the control of the plaintiff, and quashing and recalling subpoenas duces tecum served on witnesses who are not parties to the action. Petitioner further seeks to compel respondent court to permit the taking or completion of depositions and the making of an inspection.

In January, 1943, Otis D. Babcock, who will be referred to hereinafter as plaintiff, commenced an action in respondent court against McClatchy Newspapers, hereinafter referred to as defendant, and A. J. Harder, an attorney, for damages for alleged libel. The complaint averred that on August 8, 1942, when plaintiff was District Attorney of Sacramento County and a candidate for re-election, defendant published an article in the "Sacramento Bee" containing the following defamatory matter: "How was it possible for you, Mr. Babcock, going into office dead broke, on a salary of $4,500, to buy an office building at a purported price of $80,000? ... In contrast to the record of the incumbent Babcock, John Quincy Brown ... has an exemplary record, both as a member of the bar and in his private life. Sacramento County needs this man." It was further alleged that the article was false; that in publishing the same defendant acted maliciously and with intent and design to injure, disgrace and defame plaintiff; and that defendant intended thereby to be understood, and was understood by readers of the publication, as asserting that plaintiff was a dishonest public official and guilty of corruption in office.

Defendant filed an answer admitting publication of an article which included the passage above quoted and denying the other material averments of the complaint. The answer also contained pleas of privilege, mitigating circumstances and truth or justification. In support of the claim of privilege,defendant alleged that the article containing the asserted libelous matter was a fair report of a challenge issued by Harder to plaintiff to debate publicly certain questions relating to plaintiff's fitness for office; that the article constituted merely a reiteration of a news item previously published in another newspaper of general circulation; that the nature and source of the assets of a public official are proper matters of newspaper comment during a campaign wherein such official seeks re-election; and that the material contained in the article was of interest to the public and was published for public benefit.

As mitigating circumstances, it was alleged that at the time of publication defendant believed with good cause that plaintiff had accumulated property during his term of office not to be accounted for by his salary, and that, to defendant's knowledge, he had purchased an office building at a purported price of $80,000. The plea of justification rested upon allegations to the effect that the statements were true in that during his term of office plaintiff increased his net worth to an extent not reasonably to be accounted for by his salary and that he increased his assets by engaging in private business, including the buying and selling of real estate on a large scale, in violation of section 78 of the county charter which prohibits elective officers from engaging in any private practice or business.

Plaintiff's deposition was originally taken by defendant before an answer was filed in the case. He was questioned generally as to his financial status and transactions while district attorney, and he agreed to allow defendant to examine certain records relating thereto. In reliance upon plaintiff's offer, defendant did not complete its interrogation of the witness, but before the records were examined plaintiff withdrew his consent. The day after defendant filed its answer, it gave notice of the taking of the depositions of named officials of banks, title companies, and brokerage firms. Subpoenas duces tecum were issued directing the witnesses to produce records of plaintiff's bank deposits and withdrawals, loans to and financial statements from him, securities bought and sold by him, and real estate transactions handled for him during the period of his incumbency as district attorney. On the same day, defendant filed and served notice of motion for inspection of records and documents under plaintiff's control, including state and federalincome tax returns during the years he was district attorney, records of his bank deposits and withdrawals as well as of loans procured from and financial statements supplied to named banks during that period, records of his purchases and sales of real estate for the same period, and records of his brokerage account.

Shortly after the filing of the notices, plaintiff demurred to the answer and notice a motion to quash the subpoenas duces tecum on the ground that they were unreasonable and oppressive in that the issues in the case had not been defined, and that the supporting affidavits failed to disclose the contents of the papers sought to be produced or their materiality and relevancy to the issues. The demurrer to the pleas of mitigation and justification was sustained, and orders were made quashing and recalling the subpoenas duces tecum and denying the motion for inspection.

Defendant thereafter amended its answer. In its defense of mitigation it alleged that at the time of the supposed libel it had knowledge that plaintiff had publicly announced, prior to his election, that he was a "poor man"; that it was aware he had been buying many parcels of realty during his term of office, including an office building in Sacramento; that the purchase of the building at a price of $80,000 had been widely publicized; that defendant therefore believed that plaintiff had gone into office "dead broke"; that plaintiff purchased many properties, including the office building, during his incumbency, and that the public had a right to know these facts and to have an explanation by plaintiff as to the source of his assets; that the publication was without malice; and that defendant did not thereby mean to be understood as asserting that plaintiff was a dishonest public official or guilty of corruption in office.

In support of its defense of justification defendant alleged on information and belief that the factual statement underlying the purported libel was true in that plaintiff had increased his net worth more than $80,000 during his term of office; that he was worth approximately $20,000 when he became district attorney; that after taking office he accumulated property with the result that his net worth exceeded $100,000 at the time of the alleged libel; that he received no property during his term of office by gift, devise, bequest or inheritance; that he was prohibited by law from engaging in private practice or business during his incumbency; andthat the increase in his net worth did not result from his ownership of property acquired before the commencement of his term nor from the receipt of his salary as district attorney. A general demurrer was overruled as to the amended plea of mitigation, but was sustained without leave to amend as to the amended plea of justification.

Thereafter, the court made an order permitting defendant to reopen plaintiff's deposition. Plaintiff refused to answer questions pertaining to the preparation, filing, availability, and contents of income tax returns, the source of income shown therein, and the purchase of real property, including the source and amount of the purchase price thereof. Counsel for defendant stated that he desired to interrogate plaintiff to ascertain the extent to which and the means by which his net worth and income increased after he became district attorney; that defendant intended to show that plaintiff made over $80,000 while district attorney, that his real estate transactions were so great as to constitute doing business in violation of the charter provisions, and that he had practiced law during his incumbency. Plaintiff declined to answer such questions on the ground that they were incompetent, irrelevant, immaterial and without the issues. Application was therefore made by defendant for an order directing him to show cause why he should not be compelled to answer the questions propounded and complete his deposition. Respondent court, sustaining plaintiff's objections, in effect, discharged the order to show cause and ruled that plaintiff would be required to answer only the questions directed to whether he purchased designed parcels of realty, that he would not be required to answer the remaining queries, and that defendant would not be permitted to question him along the lines indicated. The present proceeding was then commenced.

[1] Mandamus is the appropriate remedy to secure the enforcement of a litigant's statutory right to take depositions, and an appeal from a final judgment is neither speedy nor adequate where a trial court improperly refuses to order that a deposition be taken. (Christ v. Superior Court, 211 Cal. 593 ; San Francisco Gas & Electric Co. v. Superior Court, 155 Cal. 30 [99 P. 359, 17...