Strick v. Superior Court

Citation192 Cal.Rptr. 314,143 Cal.App.3d 916
PartiesWilliam STRICK; Anita Strick; and Bernard Sabbath Strick, Petitioners, v. SUPERIOR COURT for the COUNTY OF LOS ANGELES, Respondent, LOS ANGELES MAGAZINE, INC., a Delaware Corporation, d/b/a Los Angeles Magazine, d/b/a L.A. Magazine; Seth H. Baker; D.F. Dell Monache; Ivor Davis; and Sally Ogle Davis, Real Parties in Interest. Civ. 66470.
Decision Date15 June 1983
CourtCalifornia Court of Appeals

Bernard S. Strick, Los Angeles, in pro. per.

Lillick, McHose & Charles and Kenneth E. Kulzick, Amy D. Hogue and Kevin R. Brehm, Los Angeles, for real parties in interest.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

An alternative writ of mandate issued to review the trial court's order granting partial summary judgment as to the first and second causes of action, alleging libel, and the third and fourth causes of action, alleging fraud and deceit, of plaintiffs' first amended complaint.

PROCEDURAL BACKGROUND

On March 27, 1981, petitioners commenced an action for libel against real parties in interest, based on the publication of an article in the April 1980 issue of Los Angeles Magazine. 1 On November 17, 1981, real parties in interest filed a motion for summary judgment, on the ground that the action was barred by the one-year limitations period set forth in Code of Civil Procedure section 340, subdivision (3). In support of the motion, real parties submitted affidavits which established that 95,000 subscriber copies of the April 1980 issue of Los Angeles Magazine were presented to the United States Postal Service for mailing on March 21, 1980.

One week after the motion for summary judgment was filed, petitioners filed a first amended complaint adding third and fourth causes of action for fraud and deceit and fifth and sixth causes of action for breach of contract to the original first two libel causes of action. 2 Thereafter, on December 14, 1981, real parties' motion for summary On May 7, 1982, real parties in interest again moved for summary judgment, presenting evidence of newsstand sales on the issue of the date of publication and challenging the third and fourth causes of action for fraud and deceit as well as the first and second causes of action for libel. The matter was set for hearing on May 28, 1982, but was continued three times. Real parties filed a reply memorandum in response to petitioners' papers in opposition to the motion, and the matter ultimately was heard on August 25, 1982. The superior court granted defendants' motion for summary judgment as to the plaintiffs' first four causes of action in their first amended complaint but gave them thirty (30) days leave to amend the third and fourth causes of action of their amended complaint to set forth causes of action not barred by the Uniform Single Publication Act, Civil Code, section 3425.3. This ruling leaves intact plaintiffs' fifth and sixth causes of action for breach of oral contract.

judgment, addressing only the original causes of action, was heard before Judge Geernaert. The motion was denied.

SUMMARY JUDGMENT EVIDENCE

In support of the motion for summary judgment, real parties in interest presented evidence that 95,951 subscriber copies of the April 1980 issue of Los Angeles Magazine were received for mailing by the United States Postal Service on March 21, 1980. In addition, real parties presented evidence of the newsstand distribution of the magazine in the form of several uncontradicted declarations.

Kenneth E. Morris (Morris), then regional sales manager for ABC Leisure Magazines and hence responsible for sales of Los Angeles Magazine, regularly visited retailers during each month's two-day delivery period to ensure that Los Angeles Magazine was on display for sale to the public at the appropriate time. The on-sale date for the April 1980 issue of the magazine was March 27, 1980. According to usual practice, delivery would be made over a two-day period, commencing March 26, and concluding on March 27. On March 26, 1980, Morris visited retail outlets and ascertained that approximately half of the 29,000 copies of the April 1980 edition, with the distribution of which he was charged, were then on sale to the public; the balance was in place the following day.

W. Art Renfro, then manager of the Los Angeles magazine and book division of ARA Services (then doing business as the Sunset News Company), a wholesale distributor of Los Angeles Magazine, relates his personal knowledge of the methods employed in receiving the magazine and delivering it to retail outlets and of the business record-keeping practices of Sunset News Company. 29,500 copies of the magazine were received from the publisher on March 19, 1980; an invoice dated March 27, 1980 shows an initial delivery of 27,500 magazines to retail outlets. As a regular business practice, deliveries are made on the invoice date and the preceding day. Approximately 60 percent of the 27,500 copies were delivered to retail outlets on March 26, 1980.

Charlotte Nelson, distribution manager of Drown News Agency, a wholesale distributor in Westminster, California, states her personal knowledge of the record-keeping and distribution practices of that agency. Fourteen thousand eight hundred copies of the April 1980 issue of Los Angeles Magazine were distributed on a two-day, "Wednesday-Thursday" schedule in March 1980; approximately half of the copies were distributed on March 26 and the remainder on March 27.

Allan Brooks, owner of Al's Newsstand, relates the delivery schedule of Los Angeles Magazine to his business. Deliveries of the magazine to Al's Newsstand are always made on a Monday or a Wednesday unless a legal holiday falls on those days; the accompanying invoice always bears a date one day later than the actual date of delivery. Accordingly, the invoice date of March 27, 1980 for the April 1980 issue of Los Angeles Magazine means delivery was made on March 26. Deliveries always arrive in the In opposition to the motion for summary judgment, petitioners presented the declarations of petitioners Williams and Anita Strick and of Sharon Levine. Sharon Levine is a subscriber to Los Angeles Magazine, residing in Tarzana, California. She received her copy of the April 1980 issue in the mail on March 27, 1980. After reading that day the article at issue herein, she telephoned petitioners immediately and informed them of the contents.

morning, and the magazine is immediately displayed for sale to the public.

Petitioner Anita Strick received Sharon Levine's telephone call, after which she informed petitioner William Strick of its content. As a consequence, petitioner William Strick visited at least five newsstands in the Marina del Rey area of his residence, as well as in parts of Los Angeles, where he is employed, in an effort to obtain a copy of the magazine. However, he was unable to locate one.

ISSUES

Petitioners contend 1) that the trial court acted contrary to law in reconsidering a motion for summary judgment previously denied, where the moving parties failed to comply with Code of Civil Procedure section 1008; 2) that the trial court erred in granting the motion for summary judgment on the ground that the libel causes of action were time-barred; and 3) that the trial court erred in holding the third and fourth causes of action for fraud and deceit were barred by the single publication rule (Civ.Code, § 3425.3).

DISCUSSION
I

Petitioners' first contention that the trial court acted contrary to law in reconsidering a motion for summary judgment previously denied, absent compliance with Code of Civil Procedure section 1008, is without merit. It is well established that a trial court retains jurisdiction and the discretion to hear a renewed motion after denying previously such a motion, notwithstanding the provisions of section 1008, or its predecessor, section 182. (See, e.g., Citizens for Parental Rights v. San Mateo County Bod. of Education (1975) 51 Cal.App.3d 1, 6, fn. 4, 124 Cal.Rptr. 68; Totton v. Superior Court (1937) 18 Cal.App.2d 59, 60, 62 P.2d 1383; cf. George Ball Pacific, Inc. v. Coldwell Banker & Co. (1981) 117 Cal.App.3d 248, 253, 172 Cal.Rptr. 597.) In considering real parties' second motion for summary judgment, the trial court did nothing more than exercise its innate powers.

II

We find no merit in petitioners' second contention that the trial court erred in granting summary judgment on the ground that the libel causes of action were time-barred. Under the single publication rule, publication of an integrated issue of a mass media writing occurs upon the first general distribution of the material to the public. (Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 289, 49 Cal.Rptr. 625.) As noted in Osmers v. Parade Publications, Inc. (S.D.N.Y.1964) 234 F.Supp. 924, the earliest date on which the allegedly defamatory information is "substantially and effectively communicated to a meaningful mass of readers" is the determinative factor. (Id., at p. 927.) In ascertaining the date of publication, the courts have looked to the mailing date to subscribers on the theory that the publisher is thereby divested of control (Sullivan v. Crisona (1967) 54 Misc.2d 478, 283 N.Y.S.2d 62, 65; see also Winrod v. McFadden Publications (N.D.Ill.1945) 62 F.Supp. 249, 250), as well as the placement of a substantial body of copies of the publication for sale on newsstands. (Wildmon v. Hustler Magazine (N.D.Miss.E.D.1980) 508 F.Supp. 87; Khaury v. Playboy Publications, Inc. (S.D.N.Y.1977) 430 F.Supp. 1342.) The case of McGuiness v. Motor Trend Magazine (1982) 129 Cal.App.3d 59, 180 Cal.Rptr. 784 does not hold to the contrary; the issue of the earliest time at which substantial distribution took place was not before the court.

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