Polygram Records, Inc. v. Superior Court

• Decision Date: 24 July 1985
• Citation: 216 Cal.Rptr. 252,170 Cal.App.3d 543
• Parties: , 11 Media L. Rep. 2363 POLYGRAM RECORDS, INC., et al., Petitioners, v. SUPERIOR COURT of the State of California, County of Napa, Respondent, David H. REGE, Real Party in Interest. AO29779.
• Court: California Court of Appeals Court of Appeals

Page 252

216 Cal.Rptr. 252

170 Cal.App.3d 543, 11 Media L. Rep. 2363

POLYGRAM RECORDS, INC., et al., Petitioners, v. SUPERIOR COURT of the State of California, County of Napa, Respondent, David H. REGE, Real Party in Interest.

AO29779.

Court of Appeal, First District, Division 2, California.

July 24, 1985.

Robert S. Besser, Margolis, Burrill & Besser, Los Angeles, for petitioners Polygram Records, Casablanca Records, Paramount Pictures Corp., Simon & Schuster, Mr. Happy Productions, Robin Williams and Little Andrew Enterprises.

James T. Fousekis, James F. Brelsford, Steinhart & Falconer, San Francisco, for petitioners Home Box Office and Time-Life Films, Inc.

Bradley P. Elley, Incline Village, Nev., for real party in interest.

KLINE, Presiding Justice.

This case poses the question, among others, whether a joke may give rise to a cause of action for defamation.

Petitioners, comedian Robin Williams (Williams), cable television programmer Home Box Office (HBO), Simon & Schuster, Inc., Paramount Pictures Corp., Time-Life Films, Inc., Polygram Records, Inc., Casablanca Records, Inc., Mr. Happy Productions, Inc., and Little Andrew Enterprises, Inc., seek a writ of mandate to compel the respondent court to set aside its order overruling their demurrers, based upon failure to state a cause of action, to the first amended complaint of real party in interest, David H. Rege (Rege), and to enter an order sustaining their demurrers. We issued an order to show cause and stayed the proceedings in the court below. We now determine that the demurrers must be sustained and accordingly direct the issuance of a peremptory writ.

Focusing solely upon a joke told by Williams during a comedy performance at The Great American Music Hall, a San Francisco nightclub, Rege's amended complaint sets forth causes of action asserting "trade libel," personal defamation, intentional and negligent infliction of emotional distress, invasion of privacy, and intentional and negligent interference with prospective economic advantage. ¹ All of the causes of action were premised upon injury and damage allegedly arising out of the publication of the joke through either distribution of record albums or audio tapes of Williams' comedy performance, distribution of video tapes of the performance, or the displaying of the performance over HBO cable television. ²

Rege brought suit individually and dba Rege Cellars and Rege Wine Cellars. He alleged that since 1977 he has sold and distributed assorted varieties of "Rege" brand wines from his San Francisco store, Rege Cellars. He claimed to have suffered damage and injury through publication of essentially the same joke in two slightly different versions, one distributed in audio format and the other in video format.

Rege alleged that the audio format version was distributed through record albums and tapes entitled "Throbbing Python of Love," composed of a performance by Williams containing the following words: "Whoa--White Wine. This is a little wine here. If it's not wine it's been through somebody already. Oh.--There are White wines, there are Red wines, but why are there no Black wines like: REGE, a MOTHERFUCKER. It goes with fish, meat, any damn thing it wants to. I like my wine like I like my women, ready to pass out." ³

The complaint alleged that the video format version was distributed through "On Location" cable television broadcasts, composed of a performance by Williams containing the following words: "There are White wines, there are Red wines, but why are there no Black wines like: REGE a MOTHERFUCKER. It goes with fish, meat, any damn thing it wants to. [p] (Comment from a member of the audience) [p] Thank you Lumpy. [p] Isn't it nice, though, having someone like Mean Joe Green advertising it--You better buy this or I'll nail your ass to a tree." ⁴

Rege avers in his complaint that the above statements caused damage to his business by conveying a meaning that his wines were inferior. Petitioners contend that the complaint fails to state a cause of action because (1) the joke, told as part of a comedy performance, cannot under the circumstances be reasonably understood as any serious or literal statement of fact and is fully protected speech under the First Amendment and article I, section 2 of the California Constitution; ⁵ (2) Rege's claim that the joke is defamatory because it purportedly associated his products with Black consumers should be rejected as a matter of law; (3) the joke is purely an expression of opinion and as such is not actionable; and (4) the joke cannot reasonably be understood as being "of and concerning" Rege's products. We agree with petitioners' first two contentions and find it unnecessary to reach the third and fourth.

I.

The parties all contend, and we agree, that the central question in this case is whether Williams' joke is as a matter of law actionable as defamation. The parties maintain, however, that this issue arises not simply in connection with Rege's three causes of action expressly alleging defamation[170 Cal.App.3d 548] --which respectively relate to publication of the joke by audio recording, cable television and video tape--but as well as a result of three corresponding causes of action for "trade libel." Though the basis upon which we resolve this case does not compel us to address the issue of "trade libel," we think it appropriate to briefly do so in the exercise of our power "to insure the just and rational development of the common law in our state." (Rodriguez v. Bethlehem Steel Corp. (1974) 12 Cal.3d 382, 394, 115 Cal.Rptr. 765, 525 P.2d 669.)

"Trade libel," which has been defined by one California court as "an intentional disparagement of the quality of property, which results in pecuniary damage to plaintiff" (Erlich v. Etner (1964) 224 Cal.App.2d 69, 73, 36 Cal.Rptr. 256), is a confusing concept that has not been subjected to rigorous judicial analysis in California. ⁶ The confusion arises primarily from uncertainty whether "trade libel" should be treated as a species of defamation, as all parties herein appear to believe, or instead constitutes the distinct tort of injurious falsehood, which "usually involves the publication of matter disparaging to the property in land, chattels or intangible rights or disparaging to their quality." (Rest.2d Torts (1977), Div. 6, Ch. 28, Introd. Note, p. 333.) The concept is also confusing because of the lack of clarity whether, as the name suggests, "trade libel" can only be occasioned by "a publication by writing ... or other fixed representation to the eye" (Civ.Code, § 45 [definition of libel] ) or whether publication may also be uttered orally or by other means; that is, whether "trade libel" may be effected by slander (see Civ.Code, § 46 [definition of slander] ).

The Restatement view is that, like slander of title, what is commonly called "trade libel" is a particular form of the tort of injurious falsehood and need not be in writing. This is so, according to the Restatement, "because the earliest cases were those of written aspersions cast upon the quality of the plaintiff's goods by which he was prevented from selling them, and the decisions went upon a supposed analogy to personal defamation. The extension of liability to other forms of injurious falsehood has left 'trade libel' as a mere name occasionally applied to this particular type. The name no longer has any significance of its own; and in particular it is to be noted that actionable disparagement of quality need not be in writing." (Rest.2d Torts, supra, § 626, comm. a, p. 346.)

As the Restatement points out, and as the commentators agree, the torts of injurious falsehood and defamation "protect different interests and have entirely different origins in history. The action for defamation is to protect the personal reputation of the injured party; it arose out of the old actions for libel and slander. The action for injurious falsehood is to protect economic interests of the injured party against pecuniary loss; it arose as an action on the case for the special damage resulting from the publication. [p] From the beginning, more stringent requirements were imposed upon the plaintiff seeking to recover for injurious falsehood in three important respects--falsity of the statement, fault of the defendant and proof of damage. At common law a defamatory statement was presumed to be false and truth was a matter to be proved by the defendant; in an action for injurious falsehood, the plaintiff must plead and prove that the statement is false. At common law, a defendant in a defamation action was held to strict liability insofar as falsity of the statement was concerned; in an action for injurious falsehood he was subject to liability only if he knew of the falsity or acted with reckless disregard concerning it, or if he acted with ill will or intended to interfere in the economic interests of the plaintiff in an unprivileged fashion. In defamation, it was only in [a] limited number of situations that a plaintiff was required to prove special damages; in injurious falsehood, pecuniary loss to the plaintiff must always be proved." (Rest.2d, Torts, supra, § 623A, comm. g, pp. 340-341; Prosser & Keeton, Torts (5th ed.) § 128, pp. 962-977; 1 Harper & James, The Law of Torts (1956) § 6.4, pp. 486-489; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 330, pp. 2596-2597; see also, Note, Corporate Defamation and Product Disparagement: Narrowing the Analogy to Personal Defamation (1975) 75 Cal.L.Rev. 961, 968; Developments in the Law--Competitive Torts (1964) 77 Harv.L.Rev. 888, 893; Comment, The Law of Commercial Disparagement (1953) 63 Yale L.J. 65.)

Thus, despite the fact that what has come to be known as "trade libel" is similar to defamation in that both involve the imposition of liability for injuries sustained through publication to third parties of a false statement affecting the plaintiff, the two torts are distinct; that...