Twin Coast Newspapers, Inc. v. Superior Court

• Decision Date: 07 March 1989
• Docket Number: No. B,B
• Citation: 208 Cal.App.3d 656,256 Cal.Rptr. 310
• Court: California Court of Appeals Court of Appeals
• Parties: , 16 Media L. Rep. 1374 TWIN COAST NEWSPAPERS, INC., Daniel H. Ridder, Thair Peterson, and Joe Segura, Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Phyllis L. McKINNEY and Centra 2000, Inc., Real Parties in Interest. 037342.

Page 310

256 Cal.Rptr. 310

208 Cal.App.3d 656, 16 Media L. Rep. 1374

TWIN COAST NEWSPAPERS, INC., Daniel H. Ridder, Thair Peterson, and Joe Segura, Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent Phyllis L. McKINNEY and Centra 2000, Inc., Real Parties in Interest.

No. B 037342.

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

March 7, 1989.

Review Denied June 1, 1989.

Gibson, Dunn & Crutcher, Rex S. Heinke, and Sheila R. Caudle, Los Angeles, for petitioners.

No appearance for respondent.

Buck, Ammirato, Rutter & Moore, Vincent A. Ammirato, and Eric C. Demler, Long Beach, for real parties in interest.

FUKUTO, Associate Justice.

I.

In a libel case, by statute, a newspaper owner, by publishing a sufficient retraction, gains immunity from liability for general or punitive damages, remaining responsible only for any special damages suffered by the defamed plaintiff. To be sufficient for this purpose, the retraction must appear "in substantially as conspicuous a manner in said newspaper ... as were the statements claimed to be libelous." (Civ.Code, § 48a.) ¹ The issues presented in this mandate proceeding are whether the sufficiency of the retraction is a question for court or for jury, and, if the latter, whether undisputed facts nonetheless compel the conclusion that the retractions published by petitioners were adequate as a matter of law. The superior court agreed with plaintiffs that the issue must be resolved by the jury, and the defendants seek a writ.

II.

On August 19, 1987, in a sensationally brutal attack, a woman and her six-year-old daughter were immolated; two suspects were arrested and accused of the crime. On August 20, the Long Beach Press-Telegram, owned by petitioner Twin Coast Newspapers, Inc., printed a front-page article containing a false report that one of the arrested suspects was the daughter of Phyllis McKinney, the owner of a Long Beach nursery school, and was employed at the school, and that the child victim was enrolled there. The article's headline read, "6-year-old girl survives torching, mother killed." The subheadline read, "McKinney preschool employee, man are booked for murder."

The day the article appeared, McKinney demanded a retraction. She commenced this action on September 1, 1987. Later, a corporation apparently controlled by her joined as plaintiff. Defendants are the newspaper's owner and three individuals: the reporter who wrote the article, a second reporter, and the publisher. Section 48a appears to cover these defendants as well. (See Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 77 Cal.Rptr. 243, 453 P.2d 747.)

The defamatory article appeared in both editions of the August 20 issue. Retractions appeared in both editions on August 21 and September 10. The error was additionally acknowledged in both editions on September 4 (in an article reporting the filing of the libel action) and on September 7 (as an editor's note following a letter to the editor headed "Insufficient apology"). Petitioners characterize these acknowledgements as retractions as well.

In the trial court, petitioners moved for an order summarily adjudicating that the retractions, individually and collectively, were "published in substantially as conspicuous a manner as the statements from the August 20 article." (This assertion did not extend to the September 4 publication, but the omission appears to have been unintentional.) Petitioners contended (1) whether the retractions were sufficiently conspicuous is a question for decision by the court, and the court should resolve that question in petitioners' favor, not in plaintiffs'; and (2) even if it were to rule the issue is ordinarily one for the jury, the court should find that under the facts of this case reasonable jurors could reach only the conclusion that the retractions were sufficient.

The trial court denied the motion, and this petition followed. We reject petitioners' first contention, but sustain the second.

III.

The precedents are sparse. In Turner v. Hearst (1896) 115 Cal. 394, 404, 47 P. 129, Department Two of the Supreme Court, discussing a retraction, said, "The question of the sufficiency or insufficiency is peculiarly a question of fact, and, therefore, peculiarly for the determination of the jury." This pronouncement is not controlling, however, for the "sufficiency" of a retraction had a different meaning at that time. The rule was that a retraction could be considered in mitigation of damages (see 115 Cal. at p. 402, 47 P. 129), and thus a jury in every case involving a retraction was required to evaluate the extent to which the initial harm to the plaintiff's reputation was undone by the retraction.

With the enactment of section 48a in 1931, retractions assumed an additional significance: publication of a retraction meeting the statutory standard eliminates liability for specified types of damages. (A retraction can also be used by both parties as circumstantial evidence on issues of malice. See Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1012, 193 Cal.Rptr. 206.)

In Behrendt v. Times-Mirror Co. (1938) 30 Cal.App.2d 77, 87-89, 85 P.2d 949, a section 48a case, the trial court had instructed the jury to determine whether the retraction was published as conspicuously as the defamatory statements, and on appeal the defendant contended the jury should instead have been directed that the retraction was "full, fair and complete." We affirmed, reasoning that because there was evidence the retractions were not printed in the same locations or under the same kinds of headlines as the libelous articles, it was for the jury to determine their sufficiency. We repeated what was declared in Turner v. Hearst, that the question of the sufficiency or insufficiency of a retraction is peculiarly a question of fact for the jury. This was a reference not to the determination of what effect the retraction had on the plaintiff's reputation, as in Turner v. Hearst, but rather to the determination of the retraction's sufficiency under the standard defined in section 48a.

Behrendt is not undermined by the subsequent 1945 amendment to section 48a, for the change the amendment made to the definition of a sufficient retraction ("as conspicuous a place and type" were changed to "substantially as conspicuous a manner") was not sufficiently fundamental to transform what was previously a question of fact into one of law. The major change made by the 1945 amendment--elimination of the requirement of a good faith mistake--has no bearing on the question of the sufficiency of the retraction. ²

The trial court thus properly regarded our decision in Behrendt as controlling.

The parties make much of two other California cases in the area, but they are unhelpful. In Howard v. Southern Cal. etc. Newspapers (1950) 95 Cal.App.2d 580, 586, 213 P.2d 399, which affirmed the sustaining of a demurrer on the ground the publication was not libelous, the court remarked that the retraction appeared "as full and fair as plaintiff had a right to expect." In Burnett v. National Enquirer, Inc. (1983) 144 Cal.App.3d 991, 1012, 193 Cal.Rptr. 206, which held the retraction statute inapplicable to a magazine, in discussing the evidence supporting punitive damages we remarked on the insufficiency of the defendant's evasive retraction.

Outside our California courts, there is only one case with a holding squarely on the issue, and it follows Behrendt without discussion. (Boswell v. Superior Court (1980) 125 Ariz. 307, 609 P.2d 577.) Other cases mentioning the issue tend to support Behrendt. See Sargent v. National Broadcasting Company (N.D.Cal.1955) 136 F.Supp. 560, 565 (under California law, a question of fact for the jury); Nevada Ind. Broadcasting Corp. v. Allen (1983) 99 Nev. 404, 664 P.2d 337, 345 (question for the jury); Brogan v. Passaic Daily News (1956) 22 N.J. 139, 123 A.2d 473, 478 [overruled on an unrelated point in Maressa v. New Jersey Monthly (1982) 89 N.J. 176, 445 A.2d 376, 386] (question for the jury); Knoxville Pub. Co. v. Taylor (1948) 31 Tenn.App. 368, 215 S.W.2d 27, 30 (same); Lawrence v. Herald Pub. Co. (1909) 158 Mich. 459, 122 N.W. 1084, 1086 (same); Rudin v. Dow Jones & Co., Inc. (S.D.N.Y.1981) 510 F.Supp. 210, 217 ("there is some support" for the position that under California law the question is for the jury). A few cases may support the contrary view. Gripman v. Kitchel (1912) 173 Mich. 242, 138 N.W. 1041, 1042 (question of law for the court); Gray v. Times Newspaper Co. (1898) 74 Minn. 452, 77 N.W. 204, 206 (same); Goolsby v. Forum Printing Co. (N.D.1912) 135 N.W. 661, 664 (ambiguous: "Under the facts, it is entirely clear that such retraction was wholly insufficient under the statute"). The Restatement of Torts is unilluminating on the point. (See Rest.2d Torts (1977) §§ 614-619.)

IV.

Our own analysis reconfirms what we said in Behrendt. A question of law requires a determination of the rules prescribed by the State for the determination of legal relations; a fact is "the concrete occurrence constituting the contingency in which the State predicates this relation." (1 Wigmore, Evidence (3d ed. 1940) § 1.) Under this formulation it is hard to see how the question whether one newspaper article was substantially as conspicuous as another could be characterized as a question of law. It is true that the interpretation of a written instrument is a function for the court. (Evid.Code, § 310; Parsons v. Bristol Development Co. (1965) 62 Cal.2d 861, 865, 44 Cal.Rptr. 767, 402 P.2d 839.) Accordingly, it has been held that the adequacy of the contents of a plaintiff's retraction demand, which must "[specif...