Osmond v. EWAP, Inc.

• Decision Date: 28 March 1984
• Citation: 153 Cal.App.3d 842,200 Cal.Rptr. 674
• Court: California Court of Appeals Court of Appeals
• Parties: Kenneth OSMOND, Plaintiff and Appellant, v. EWAP, INC., Defendant and Respondent. Civ. 67926.

Page 674

200 Cal.Rptr. 674

153 Cal.App.3d 842

Kenneth OSMOND, Plaintiff and Appellant, v. EWAP, INC., Defendant and Respondent.

Civ. 67926.

Court of Appeal, Second District, Division 3, California.

March 28, 1984.

Law Offices of Jack Diamond, Jack Diamond, Sherman Oaks, for plaintiff and appellant.

Brown, Weston & Sarno, David M. Brown and G. Randall Garrou, Beverly Hills, for defendant and respondent.

ARABIAN, Associate Justice.

INTRODUCTION

This is an appeal by plaintiff Kenneth Osmond ("Osmond") from the judgment dismissing his action ¹ after the trial court granted respondent EWAP, Inc.'s ("EWAP") ² motion for summary judgment as to Osmond's first cause of action for libel. We affirm the judgment on the ground that Osmond failed to raise a triable issue on the question of malice, an element of libel which must be proved to impose liability on a distributor which merely disseminates libelous material published by others. ³

STATEMENT OF FACTS

Osmond's complaint and his declarations submitted in opposition to EWAP's motion for summary judgment set forth the following facts relevant to this appeal:

Osmond was the child actor who in the 1950's portrayed the character "Eddie Haskell" in the popular television series, "Leave it to Beaver." Osmond was the only actor who ever played that character.

EWAP operated a chain of retail "adult book stores" under the name "Le Sex Shoppe." One or more of the stores prominently displayed in large glass showcases, for sale to the public, the "Playmate" series film "Supercock." The label on the film carton showed a photograph of a man and woman engaged in a lewd sex act. The legend on the label stated that the male star of the film was "John Holmes, who played 'Little Eddie Haskell on the Leave it to Beaver' show...."

At the time the film was thus displayed and sold by Le Sex Shoppe stores, Osmond was a man in his mid-thirties, married, the father of two children and a police officer with the Los Angeles Police Department. When it was brought to Osmond's attention that the film was being sold in Le Sex Shoppe stores, he visited the stores and saw the film on display for sale to the public.

Osmond's friend, Officer Lane, of the Los Angeles Police Department, who was aware that the statement on the film carton was false, also visited a Le Sex Shoppe store. Officer Lane spoke with a store clerk about the film "Supercock" and its advertisement that John Holmes had played "Little Eddie Haskell." The clerk told Lane that the store also carried pornographic films made by other "stars" before "going into the movies."

Osmond alleged in his complaint that the libel was "published by the defendants and each of them, with malice, knowing that the same was false or with reckless disregard whether it was false or not ...."

EWAP's motion for summary judgment was supported by declarations, as well as by interrogatories EWAP had propounded to Osmond and Osmond's answers thereto. EWAP's motion was made on the grounds, inter alia, that Osmond could not raise a triable issue of fact on the issue of malice. EWAP posited that malice is an essential element of Osmond's cause of action for libel for two reasons: (1) because he is a public figure and (2) because EWAP is a distributor which merely disseminated the libelous material published by others.

The declarations EWAP submitted in support of its motion for summary judgment were by Howard Green and Melvin Starkman, the president and vice-president of EWAP, respectively. Each of these officers stated that EWAP's business activities consisted of buying films from publishers or producers for distribution in the Los Angeles area and for sale in book stores operated by EWAP. EWAP was not the publisher of any of the merchandise it distributed.

During the time relevant here, only Green and Starkman had authority to order merchandise for EWAP. The merchandise was ordered for resale in two ways. Each week EWAP's wholesalers automatically delivered items directly to EWAP stores; some new items as well as a second or third series of the same items were delivered. Other merchandise was purchased for resale by telephone, delivered to EWAP's warehouse and thereafter transferred to EWAP's stores. The officers of EWAP did not see the merchandise delivered directly to its stores nor the merchandise delivered to its warehouse.

During the relevant period, EWAP had ten thousand to fifteen thousand films in its inventory. The records of EWAP's purchases consist of EWAP check vouchers and supplier invoices which describe only the number of units purchased and do not describe the films by name. Although EWAP did carry some of the "Playmate" series films many years ago, neither Green nor Starkman recalled which films in the series were carried and the purchase and sales records of EWAP do not indicate titles of specific films. Further, EWAP has no record of purchases made directly from "Playmate" films nor from "Starlight Enterprises," which were also named defendants in this lawsuit.

Before reading the complaint in this case, neither Green nor Starkman had ever heard of Kenneth Osmond and did not know who he was or who had played the role of "Little Eddie Haskell" on "Leave it to Beaver." Neither Green nor Starkman recalled ever seeing the carton or the brochure for the film "Supercock," both of which contained the libelous material.

As noted above, in addition to the declarations of Green and Starkman, EWAP also submitted in support of its motion for summary judgment interrogatories propounded by EWAP to Osmond and Osmond's answers thereto. Osmond's answers revealed that although Osmond had purchased two films to introduce in evidence at trial against EWAP, Osmond was not aware of any statement by any officer, employee, or agent of EWAP which showed EWAP had knowledge prior to the sale of the two films that (1) the film carton was present in the bookstores, (2) the carton contained the defamatory statement or (3) the statements were false or if EWAP did not know the statements were false, EWAP entertained serious doubts whether the statements were true.

The trial court granted EWAP's motion for summary judgment on the grounds that the action had no merit and that Osmond presented no triable issue of material fact. Judgment was entered thereon and this appeal followed.

CONTENTIONS

Osmond contends that EWAP's motion for summary judgment as to his first cause of action for libel was improperly granted for the following reasons:

1. The declarations in support of the motion were defective because the declarants failed to state that the matters to which they referred were within their personal knowledge and failed to discuss whether they were competent to testify regarding these matters. (Code Civ.Proc., § 437c.)

2. Osmond raised a triable issue on the question of malice by presenting evidence that EWAP either knew of the libelous nature of the statement on the film carton or was aware of facts which imposed a duty to investigate.

3. Osmond was not a public figure for purposes of this action and therefore he was not required to prove malice.

a. Osmond attained anonymity and lost his public figure status with the passage of time.

4. EWAP waived its public figure "defense" by failing to raise the issue in its answer.

5. Issues regarding First Amendment rights and statute of limitations defenses are not proper grounds for summary judgment.

DISCUSSION

I.

Standard of Review.

Inasmuch as this case reaches this court on appeal from a summary judgment in favor of the defendant, EWAP, it is only necessary for us to determine whether there is any possibility Osmond may be able to establish his case. (Tresemer v. Barke (1978) 86 Cal.App.3d 656, 661-662, 150 Cal.Rptr. 384; Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338-339, 138 Cal.Rptr. 670.) Summary judgment is properly granted where the evidence in support of the moving party conclusively negates a necessary element of the plaintiff's case or establishes a complete defense and thus demonstrates under that no hypothesis whatever is there a material factual issue which requires the process of a trial. (Ibid., accord Sprecher v. Adamson (1981) 30 Cal.3d 358, 362, 178 Cal.Rptr. 783, 636 P.2d 1121.) In making its determination, the trial court may rely on "affidavits, declarations, admissions, answers to interrogatories, depositions and matters of which judicial notice ... may be taken." (Code Civ.Proc. § 437c; Barrett v. Atlas Powder Co. (1978) 86 Cal.App.3d 560, 563, 150 Cal.Rptr. 339; see Sheffield v. Eli Lilly & Co. (1983) 144 Cal.App.3d 583, 611, 192 Cal.Rptr. 870.) The party opposing the motion for summary judgment supported by such affidavits, declarations, answers to interrogatories, or other documents sufficient to sustain the motion, has the burden of showing that triable issues of fact exist. (Ibid.; Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) "The purpose of the summary procedure is to penetrate through evasive language and, adept pleading and ascertain the existence or absence of triable issues." (Chern v. Bank of America, supra, at p. 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)

II.

The Declarations Submitted by EWAP in Support of Its Motion for Summary Judgment Were Not Defective.

First, we dispose of Osmond's contention that the declarations of Green and Starkman in support of EWAP's motion for summary judgment were defective because each declarant failed to discuss his competence to testify regarding the facts set forth in his declaration.

The requirement of the law in this respect appears in Code of Civil Procedure, section 437c, as follows: "Supporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated...