Weingarten v. Block

• Decision Date: 14 February 1980
• Citation: 162 Cal.Rptr. 701,102 Cal.App.3d 129
• Court: California Court of Appeals Court of Appeals
• Parties: , 5 Media L. Rep. 2585 Saul M. WEINGARTEN, Plaintiff and Appellant, v. Paul BLOCK, Monterey Peninsula Herald Co., a California Corporation, Toledo Blade Company, an Ohio Corporation, Richard B. Gifford and Milton Jaques, Defendants and Respondents. Civ. 42705.

Page 701

162 Cal.Rptr. 701

102 Cal.App.3d 129, 5 Media L. Rep. 2585

Saul M. WEINGARTEN, Plaintiff and Appellant, v. Paul BLOCK, Monterey Peninsula Herald Co., a California Corporation, Toledo Blade Company, an Ohio Corporation, Richard B. Gifford and Milton Jaques, Defendants and Respondents.

Civ. 42705.

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

Feb. 14, 1980.

Hearing Denied April 10, 1980.

Jacque Boyle, Los Angeles, for plaintiff and appellant.

Noland, Hamerly, Etienne & Hoss, A Professional Corp. by Myron E. Etienne, Jr., Michael D. Cling, Salinas, for defendants and respondents.

TAYLOR, Presiding Justice.

The major questions presented by this appeal ¹ are whether the trial court properly 1) found that plaintiff, Saul M. Weingarten (Weingarten), the former city attorney of Seaside and local attorney for its redevelopment agency, was a "public official" and "public figure" within the rule of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, and Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094; 2) granted a nonsuit at the conclusion of Weingarten's evidence before a jury on his complaint for libel, conspiracy to libel, intentional infliction of emotional distress, and interference with economic advantage against the owners and publishers of the Monterey Peninsula Herald and other defendants ² (hereafter collectively Block). For the reasons set forth below, we have concluded that the judgment must be affirmed.

The instant case hinges on the application of the qualified constitutional privilege based on the First Amendment of the U.S. Constitution and extended to state court libel actions by the Fourteenth Amendment, as first set forth in New York Times Co. v. Sullivan, supra, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686. The rule established that in a defamation action brought by a public official, the plaintiff must prove by clear and convincing evidence that the publication was false, and that the defendant published with "actual malice" (p. 280, 84 S.Ct. p. 726), defined as publishing "with knowledge that it was false or with reckless disregard of whether it was false or not" (p. 280, 84 S.Ct. p. 726). (See also Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490, 95 S.Ct. 1029, 1043, 43 L.Ed.2d 328).

The New York Times rule was extended beyond "public officials" to "public figures" (Curtis Publishing Co. v. Butts, supra, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094, and its companion case, Associated Press v. Walker, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094). In Rosenbloom v. Metromedia, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296, the U.S. Supreme Court held that a libel plaintiff's status as a public person was not determinative of the availability of the qualified constitutional privilege; the privilege was extended to all discussion and communication concerning matters of public or general concern. Subsequently, in Gertz v. Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, the U.S. Supreme Court held that the Rosenbloom rule was not constitutionally required, and returned to a distinction between "public persons" (including both "public officials" and "public figures") and "private individuals."

Preliminarily, we dispose of Weingarten's procedural contentions. Weingarten argues that the court abused its discretion by permitting Block to amend their answers at the time of trial to include an allegation that he was a "public official." The answers alleged as an affirmative defense that Weingarten was a "public figure." The trial court has discretion to allow an amendment to any pleading in furtherance of justice at any time before or after the commencement of trial (Code Civ.Proc., §§ 473, 576). Liberality in permitting amendments is the rule (Greenberg v. Equitable Life Assur. Society, 34 Cal.App.3d 994, 110 Cal.Rptr. 470). As a matter of policy, the ruling of the trial court will be upheld, unless a manifest or gross abuse of discretion is shown (Bedolla v. Logan & Frazer, 52 Cal.App.3d 118, 135, 125 Cal.Rptr. 59).

As the court observed here, Weingarten knew from the beginning that the New York Times privilege was the major issue. Weingarten's complaint was pled in the language of New York Times and in his trial brief, he referred to himself as a "public official." Accordingly, we conclude that the court did not abuse its discretion in allowing the amendment of the answer.

Weingarten next argues that the trial court erred by making a determination of the public official/public figure issue prior to the commencement of the jury trial. In Rosenblatt v. Baer, 383 U.S. 75, at page 88, 86 S.Ct. 669, at page 677, 15 L.Ed.2d 597, the U.S. Supreme Court indicated that "as is the case with questions of privilege generally it is for the trial judge in the first instance to determine whether the proofs show (plaintiff) to be a 'public official.' " The federal authorities agree that the question is a mixed one of law and fact to be preliminarily determined by the trial court (Meeropol v. Nizer (2nd Cir. 1977) 560 F.2d 1061; Rosanova v. Playboy Enterprises, Inc. (S.D.Ga.1976) 411 F.Supp. 440; Hotchner v. Castillo- Puche (S.D.N.Y.1975) 404 F.Supp. 1041; rev. jury verdict (2nd Cir. 1977) 551 F.2d 910). Such a procedure is consistent with that followed in this state for the determination of privilege. In any event, Evidence Code section 320 leaves the order of proof in the discretion of the trial court "(e)xcept as otherwise provided by law." We conclude that the trial court properly determined the issue before submitting the case to the jury.

In this context, we turn to the facts as found ³ by the court.

Weingarten served as city attorney for the City of Seaside for 15 years, from 1955 to 1970; he also served as city attorney for the City of Gonzales for 19 years, from 1954 to 1973, and as interim city attorney for the City of Pacific Grove for one year, from 1954 to 1955. In addition, Weingarten has served continuously as attorney for the Redevelopment Agency of the City of Seaside (Redevelopment Agency) from 1963 through 1977. Although the Redevelopment Agency was served by other counsel, Weingarten has been the only local counsel. Weingarten was the city attorney of Seaside at the time the Redevelopment Agency was formed and was instrumental in forming the agency, in getting the federal funding and initiating and bringing to fruition a series of redevelopment projects in the city. Since the formation of the City of Seaside in the mid-1950's, Redevelopment Agency has played an important role in providing utilities, improvements and services which did not exist in Seaside prior to its incorporation. Weingarten has played an active and important role in the Redevelopment Agency since its inception in 1963, and has received much publicity concerning his role in the Redevelopment Agency throughout its history.

Prior to publication of the subject articles ⁴ in 1971, Weingarten was a member of the Democratic Central Committee for Monterey County for approximately 10 years, and a member of the State Central Committee for two years. In 1958, Weingarten was a candidate for the public office of State Assembly and his name was suggested by Democratic organizations as a candidate for the United States Congress and the California State Senate.

Weingarten pled in his fifth amended complaint that he was "public attorney." His activities as city attorney, attorney for the Redevelopment Agency, and civic leader in the community of Seaside and in the Monterey peninsula area received extensive publicity in the Monterey Peninsula Herald newspaper from 1967 to 1971. Because of his public stature, Weingarten had significantly greater access to the channels of communication than does an ordinary private person.

At the time of the publication of the subject articles in 1971, Weingarten had assumed a role of especial prominence in the affairs of the community of Seaside, and occupied a position of persuasive fame and notoriety in the community of Seaside. Weingarten was discharged from his position as city attorney for the City of Seaside in October 1970 by vote of the Seaside city council. Thereafter, he served as the attorney for the Seaside Citizens For Better Government, a corporation organized to initiate a recall of the members of the Seaside city council who had voted for his discharge. In relation to the recall movement in Seaside, Weingarten also represented Bernard J. Dolan, Jr., in an action filed against the City of Seaside in Monterey County Superior Court, No. M 5020, entitled Dolan v. City of Seaside. The recall movement in Seaside generated public controversy in the community and received extensive publicity in the local newspaper.

The recall movement, organized and promoted by the corporation which Weingarten represented, successfully recalled from office three of four members of the Seaside city council who had voted to discharge him. By his representation of the recall organization, Weingarten voluntarily injected himself into a public controversy in Seaside regarding the recall election and thereby invited public attention and comment.

After the discharge of Weingarten from the position of city attorney in October 1970, that position remained vacant and legal services were performed for Seaside by several interim city attorneys. In August of 1971, after completion of the recall election, the City of Seaside resumed its search for a city attorney. On August 5, 1971, an article appeared in the Monterey Peninsula Herald indicating that the Seaside city council was resuming the search for a city attorney. On September 9, 1971, the date of the publication of the first subject article, the Seaside city attorney position was vacant and applications for the position were being solicited by the City of Seaside. The position of city attorney in Seaside was a matter of lively public interest throughout 1971 and remained so on...