*1 Dist., No. 50954. First Div. [Civ. Three. Jan. 1983.] DIAZ, TONI ANN Plaintiff and Respondent, TRIBUNE, INC., al., OAKLAND et Defendants and Appellants. *4 Counsel *5 White Churton, & R.
Cooper, Cooper, Neil L. John Barry Shapiro, Mahoney and F. for Carey Corbaley Defendants and Appellants.
O’Neill & Richard D. Bridgman, De Goff & Sherman and Victoria Bridgman, J. De Goff for Plaintiff and Respondent.
Opinion BARRY-DEAL, Plaintiff Toni Ann (Diaz) Diaz sued the Oakland Trib J. une, Inc., owners and publishers (the Tribune), the Oakland Tribune and (Jones), columnists, Jones one Sidney of its for invasion of Diaz privacy. claimed that the in facts Jones’ highly embarrassing private 26, 1978, March column was unwarranted and malicious and newspaper $250,000 caused her to suffer severe emotional distress. awarded Diaz $525,000 in compensatory ($25,000 and in damages punitive damages against $500,000 Jones and Tribune). the against was entered on Judgment February 14, 1980. Defendants’ motion for a new trial based on insufficiency evidence, law, errors of and excessive was denied. This damages timely appeal below, followed. As discussed we reverse the because of instruc judgement tional errors.
The facts are for the most She Diaz is a transsexual. was part undisputed. bom in Diaz, Puerto Rico in 1942 as Antonio She moved to California male. from New in York 1964. it life suffered say Suffice that for most her Diaz from a gender identification and the that ac- problem anxiety depression it. She companied testified that since had she was she had young feeling a woman.1 In being 1968 Diaz began receiving counseling psychological hormone In therapy. 1971 Diaz embarked on the lengthy process evaluation as a candidate for corrective at the Stanford Univer- gender surgery sity Gender Clinic. Dysphoria ultimately She was considered be a can- good didate for In surgery. corrective gender surgery performed Stanford staff.2 to Diaz the
According was a success. all outward she surgery By appearances looked and behaved aas woman and was a woman. accepted by Sable, to her According Dr. her identities therapist, physical psychological were in now harmony.
Diaz scrupulously a secret from all but her immediate kept surgery family and closest friends. She never She her sought publicize surgery. changed name to Toni Ann Diaz and made her high in school necessary changes records, her records, social security and on license. tried un- her driver’s She successfully her change Puerto Rican birth certificate. She did not change however, card, on her gender designation draft that it would be a asserting useless since she for gesture, had been turned down induction. previously she no
Following from the dif- surgery suffered longer psychological ficulties that had her plagued In she enrolled previously. College (the Alameda College), was one of five col- two-year college. College leges of the Peralta District. Community College *6 1977,
In spring she was elected student for the 1977-1978 body president academic year, the first an woman hold that office. Her election and unsuc- cessful to unseat her in attempt were reported newspaper, College 17, 1, in 14,1977, Reporter, May June and June At no time during editions. the election did Diaz reveal information operation. about her any sex-change
In 1977 Diaz was also selected to be the to the body student representative Peralta Community (the Board).3 Board of as College Trustees Diaz’s selection Sable, Ph.D., therapist, 1(cid:127)Diaz’s Allen person identity described transsexual “a whose is being a woman with body, a man’s . . .” surgery 2The organs consists of removal surgical production of the external and male sexual genitalia. external female community college governs 3The Board district oversees an annual affairs 34,000. budget population $40 student of almost million and a with her in the June body together photograph, appeared
student representative, of the Peralta Bulletin. Colleges issue Diaz became em- body the middle of her term as student president, Near with administrators the College in which she controversy charged broiled in a 1978, Tribune of the quoted issue of student funds. The March misuse “rubber stamped” been that her had Diaz’s charge signature improperly account. drawn from the associated students’ checks Times-Star, news- 24, 1978, daily an article in the Alameda On March body of misuse student in with the charge mentioned Diaz connection paper, funds.4 arose, several confiden- was informed by after the Jones controversy
Shortly heif matter Diaz was a man. Jones considered the tial sources that Tribune’s own information. he Jones testified that inspected could verify to con- the College with an unidentified number persons files spoke Paoli, editor city this information. It was not until Richard firm that Diaz Tribune, the information Oakland records that checked city police in prior reveals that bom a man was verified. The evidence police for an undercover soliciting Diaz was arrested in Oakland to the surgery, officer, a misdemeanor.5 col- in newspaper Jones’ item appeared the following
On March bewill of Alameda College at the Stuff: The students “More Education umn: is Diaz, no but lady, Toni body learn that their student president, surprised name is Antonio. a man whose real in fact deal, Ibut suspect no times, matter is realize, big such a I these
“Now arrange- showering make other wish to in P.E. 97 may his female classmates ments.”6 forced and was article, became very depressed Diaz reading
Upon that as a Diaz testified status, hard to conceal. she had worked her which reveal insomnia, memory nightmares, suffered from of the article she result for that scheduled College, in Mills her enrollment She also delayed lapses. fall.7 *7 1978, 14, controversy. Reporter reported for March also on the College 4The of Alameda charge. bargain, guilty plea to the pursuant plea that to a Diaz entered 5The record reveals
However, Following acquit a trial she was guilty plea. allowed to withdraw her Diaz was later charge. of the ted appendix opinion. to this appears article in the complete 6The text of the trial, 23, 1980, January not enrolled. 7At the time of she still had
125 untrue, information was of the any not charge Diaz did In her complaint of in- unwarranted by publicity invaded her privacy that defendants only newswor- matter was that the on the ground timate facts. Defendants defended constitutionally and hence was protected. thy did (1) defendants found that returned a verdict and
At trial jury special not Diaz; public; and (2) the fact was private disclose a fact concerning publicly to a offensive was (4) highly fact was not the fact (3) newsworthy; the fact sensibilities; disclosed (5) defendants of ordinary reasonable person disregard with reckless it offensive or with that was knowledge highly in- caused offensive; (6) it was the disclosure proximately whether highly to Diaz. damage (2) and issues Nos. finding In this defendants challenge jury’s appeal attack the awards instructional error and (3) above. Defendants also urge issues, it is these Before we address compensatory punitive damages. to herein: the right to involved useful discuss the briefly competing rights and the to free right press. privacy speech
Background
in a land-
first developed
a common law
to
The
concept
right
privacy
(1890) 4
Brandéis,
Privacy
The
to
Right
article
Warren and
mark
The
193,
state.8
specific
in virtually every
Harv.L.Rev.
and has been adopted
be free from public
to
right
which we are concerned is
with
privacy right
facts,
short,
to be let alone.”
“the right
embarrassing
disclosure
private
285,
91].)9
P.
(Melvin
(1931)
v. Reid
Cal.App.
[297
well docu
in California is
The
disclosure tort
development
628,
(See
(1980)
Cal.Rptr.
mented.
Forsher v.
Disclosure Theory Applied to Amendment Nimmer, Right Speak The Times to Time: First 9See from 935, 958-959, (hereafter cited Misapplied Privacy fn. 80 Libel and 56 Cal.L.Rev. Right Speak.) right broad right recognized also under the may reasonably argued that this 10It 5,1974). I, (adopted Nov. section of the California Constitution privacy granted under article Privacy: discussion, Gerstein, Right to Constitutional see complete more For a California’s (1982) Hastings Protection Private 402-411. Development Const.L.Q. Life *8 126
The disclosure tort is of public one four distinct torts which are ac tionable under the general rubric of of The are: (1) invasion other three privacy. affairs; intrusion (2) solitude or upon plaintiffs into his or her “false private (3) likeness light” publicity; or to the plaintiff’s of name appropriation defendant’s 16; v. advantage. Cal.3d fn. (Kapellas Kofman, supra, 1 at p. Time, v. (9th Inc. Virgil 1975) Cir. 1125.) 527 F.2d The disclosure of public cause action is distinct from a suit for libel or “false since the light,” herein does not plaintiff informa challenge accuracy tion but published, asserts that the is so intimate and unwarranted as to publicity outrage notion community’s (Briscoe v. Reader’s decency. Digest Association, Inc., 542; 4 supra, Cal.3d (2d Sidis v. F-R Pub. at p. Corporation “ 1940) Cir. 113 F.2d of a A.L.R. ‘The defama gravamen tion action is a false about in the engendering whether mind opinion person, of one other person in the disclosure many people. gravamen public ’ ” cases is [privacy] degrading person by his view. laying open public life (The Right 958-959, to Speak, added.) at supra, italics pp. course,
Of right is not privacy absolute and must balanced against the often competing constitutional mat- right press publish (See ters. Cox (1975) v. Cohn 420 U.S. Broadcasting Corp. 328, 345-346, Time, Inc.,
L.Ed.2d
1029];
95 S.Ct.
Virgil v.
527 F.2d
supra,
1122, 1127; Forsher
809;
v.
at
Briscoe
Bugliosi, supra,
Cal.3d
v.
Association, Inc.,
Reader’s Digest
534;
v.
supra, Cal.3d at p.
Kapellas Kof-
man, supra, 1 Cal.3d at
Amendment
35-36.)11 The First
from
pp.
protection
tort liability is
if the
necessary
press is to
out its constitutional
carry
obligation
keep
informed
public
so that
they may make
decisions mat-
intelligent
ters
ato
important
(See
v.
self-governing
Broadcasting
Cox
people.
Corp.
Cohn, supra,
At the urge newswor- burden of (2) proving to and that defendants had the privacy the right re- and We and find that either of these errors agree prejudicial thiness. reversal. quires The to Right Privacy
1. to right
Plaintiff Diaz defining instruction proffered jury properly However, court, the following language: the trial sua added privacy.12 sponte, information misusing “It business or interests from government prevents or to embarrass us. for one in order to serve other gathered purpose purposes, ” need. This should be there right abridged only compelling public when (Italics added.) Davis contained in the from White v. language last sentence was taken
(1975)
mis
222],
2. The Burden Proving Newsworthiness of
Next, jury defendants that trial court instructed the argue improperly that the of burden for We proving agree. newsworthiness was the defendants.
The trial court instructed the burden of as follows: jury plaintiff’s proof action, “In this has a plaintiff the burden of establishing preponderance of the evidence all of the facts issues: necessary to prove following
“One, that defendants a fact publicly disclosed concerning plaintiff; “Two, that before defendants’ the fact was publication private appeared, not public;
“Three, that the fact was one which offensive to a would highly sensibilities; reasonable person ordinary
“Four, that the it defendants disclosed the fact with that was knowledge offensive or highly with reckless of whether it was offensive disregard highly not; or
“Five, her; that the disclosure was a cause proximate injury damage “Six, suffered, the nature and extent of the claimed to been so injuries have the elements of her and the damage, amounts thereof.” defendants,
As originally proffered by this instruction also required plaintiff that the prove article was not The trial struck this element newsworthy. court and, instead, from instruction had the directed the that defendants burden of in order in this action. prevail newsworthiness proving
Our has allocating research discovered no decision published expressly one of While the burden of newsworthiness. parties publisher proving itself may disclosure cause action against public by proving defend matter was it is has the to assert that said defendant newsworthy, misleading burden of be free tort As discussed liability. newsworthiness to from proving below, not has the burden of that the plaintiff proving course, rebut i.e., defendants may that it was not Of privileged, newsworthy. However, to newsworthy. that the matter was showing with evidence plaintiffs newswor- assert, does, the burden proving that defendants have plaintiff error. thiness is oc- speech press the critical to freedom
Recognizing right position to any infringement in our courts are sensitive society, understandably cupies L.Ed.2d 22-23 these Miller v. 413 U.S. rights. California 429-430, v. Sullivan 2607]; 93 S.Ct. New York Times Co. 1412]; 686, 700, 95 A.L.R.2d U.S. 269-270 L.Ed.2d 84 S.Ct. *11 Association, Inc., 534-535.) 4 Cal.3d at Briscoe v. Reader’s Digest supra, pp. awareness, of ex- of the freedom Given this our courts an uphold abridgement is in the benefit of pression only drawn instances where narrowly expression Cox the to or societal interests. clearly outweighed by personal injury Cohn, at L.Ed.2d Broadcasting Corp. v. 420 U.S. at p. [43 349].)13 p.
Mindful of the role it is therefore important proper the performed by press, action, for the order a cause of to that the plaintiff, to state prove related constitutionally obscenity is not This is rule in the area protected. law. 423],
In Blount v.
(1971)
13SeeThe at 938-948. tected, i.e., that it was false made for the truth. This with reckless disregard “ ” allowed the press it needs to its First Amend ‘breathing space’ pursue (Id., ment 701].) at obligations. 271-272 L.Ed.2d at pp.
A contrary rule would lead the matter is though Even self-censorship. true, be true believed to and in fact the defendant be deterred may newspaper from official criticizing conduct because of doubt can whether the truthfulness be at trial or proved (Id., out of fear do at the so. expense having L.Ed.2d at p.
These same concerns are here. that defendants have present proof an article published containing offensive matters does not itself highly private establish a claim for relief. It be that an must otherwise certainly recognized embarrassing article on the circumstances. On- may newsworthy, depending when the ly is not can recover embarrassing publicity plaintiff consistent damages, with defendants’ of free To hold rights speech press. otherwise would a default permit against obtain media plaintiff judgment defendant without its any showing the defendant had exceeded constitu- *12 tional prerogative. The effect would be the free to read of rights speech the out of press Constitution. course,
Of once has facie that the plaintiff established a case prima publicity i.e., is not it constitutionally not defendants can meet protected, newsworthy, However, with a showing that the information was the newsworthy. place burden of proving newsworthiness on the to defend defendants order against the action would have a effect on freedom of chilling their expression.
That the correct is to burden of nonnewswor approach the place proving Torts, thiness the is confirmed of plaintiff the Restatement Second supra, 652D, which the section limits cause of to matters which are not of action Inc., Time, concern to “legitimate (See the v. 527 F.2d Virgil supra, public.” at fn. 10.) p.. of
By parity defendants’ of free reasoning, constitutional rights speech should same press afforded the whether the tort al- procedural safeguards is for defamation leged or for invasion of We therefore hold that Diaz privacy. had the additional (See that article newsworthy. burden was not proving Inc., Association, also 543.) Briscoe v. Reader’s Cal.3d Digest 4 at supra, p. (See The failure to so v. Cessna instruct was reversible error. McGee Aircraft Co., 82 1019-1020.) at supra, Cal.App.3d pp. As a subsidiary contention defendants also that was im argue instructed to an properly “ad hoc perform balancing” competing context instruction, in the when viewed challenged We rights.14 disagree. instructions,15 forth in the cases. set conforms to standards other 15; Association, Inc., fn. 3d at 4 Cal. v. Reader’s Digest supra, Briscoe Time, Inc., 1129-1130.) F.2d at v. supra, pp. Virgil reversed, administra- judicial it is in interests judgment is Although tion to address the merits of defendants’ contentions. remaining
The Public Disclosure Tort Private Facts 1. of law
Defendants as a matter next evidence establishes argue record, and fact of of public that the Diaz’s was a matter original gender their defen therefore its not actionable.16 In contention publicity was support Cohn, That on Cox U.S. 469. rely Broadcasting Corp. supra, dants reliance is misplaced. not domain is
Generally matter which is in the speaking, already supra, and its private, (See Kapellas Kofman, protected. Association, Inc., 38; but Cal.3d at see Briscoe v. Reader’s Digest Reid, 290-291.) 538-539; at Cal.3d Melvin v. pp. Cal.App. pp. Cohn, father Broadcasting In Cox ruled that Corp., Supreme Court victim, media deceased could not action against maintain a disclosure rape who the television defendants identified Cohn’s as the victim daughter during *13 Cohn, of the (Cox Corp. supra, murder trial. coverage Broadcasting at to the court’s conclusion 350].) U.S. 496-497 L.Ed.2d at Central pp. p. indictment, fact that the was the obtained the victim’s name from the reporter him at (Id., which had been in at L.Ed.2d shown to court. open p. 350].) p. sanc- may
In a narrow the court a state not very impose ruled that holding, from obtained tions on accurate of the name of a victim rape publication records in with a public prosecution which are maintained connection judicial Ann general, determining plaintiff, Toni jury 14The was instructed follows: “In whether as interest, Diaz’s, balanc upon is must be based a right privacy subject public to the so-called ing obtaining against privacy.” interest her desire for public such information subject newswor article is determining was instructed as follows: “In whether 15The article, into thy may published, depth fact of the intrusion you consider social value of the affairs, voluntarily position to a ostensibly plaintiff to which acceded private and the extent notoriety.” of public findings was jury’s publicized the matter challenge do not that 16Defendants sup evidence record to person. ample There is in the highly offensive to a reasonable fact was findings. port these (Id., and which themselves are at open L.Ed.2d public inspection. court Importantly, refused address the broader expressly of whether the question truthful of facts obtained from public records can ever be or subjected (Ibid.) civil criminal liability.
Because of its narrow Cox Broadcasting gives us little holding, Corp. guidance.17
Here there is no evidence to that the fact of Diaz’s suggest gender-corrective was surgery To part public record. the evidence reveals that contrary, Diaz license, took affirmative to conceal this fact her driver’s steps by changing records, social security, school high by lawfully her name. changing records, The police relied, which upon Jones contained information concerning one Antonio Diaz. No mention was made of Diaz’s new name In gender. order connnection, to draw the Jones relied unidentified confidential upon circumstances, sources. Under these we conclude sexual identity that Diaz’s was a matter. private
We do also not consider Diaz’s Puerto to be Rican birth certificate a public event, record in this instance. In any did not on that document rely defendants and cannot be heard to argue the information contained therein public.
Moreover, matter which was once of record may protected facts private where disclosure of that information would not be newsworthy. Association, Inc., Briscoe v. Digest Reader’s Cal.3d at 537-538 pp. [publication of ex-offender for crime was held to be identity past Reid, Melvin v. improper]; Cal.App. 290-291 at pp. [disclosure plaintiff’s reformed, life as past seven years after she was prostitute, actionable].)
2. Newsworthiness above,
As identity discussed whether the of Diaz’s sexual fact is measured in interests: the along sliding competing scale *14 dividual’s to from the right facts versus keep private public’s gaze public’s (See 36.) to know. v. In right Kapellas 1 Cal.3d at an effort Kofman, supra, p. interests, to reconcile these our courts settled a competing three-part have “ test for whether is determining matter the social published newsworthy: ‘[1] value of facts published, [2] depth of article’s intrusion into osten sibly private affairs, and [3] extent which the to party voluntarily acceded to a of (Briscoe v. Reader’s position public notoriety. [Citations.]’ [Citation.]” Association, Inc., Digest 541.) supra, p. Cal.3d at Tort, Privacy supra, page 17 SeeThe Disclosure at 201. female student as the first that in of Diaz’s
Defendants argue light position newsworthy was a of the her gender” body president College, “questionable newsworthiness contention, the issue of item. As a assert that subsidiary they contention address the latter should not have been submitted to the We jury. first. a Question Jury
a. Newsworthiness not contem upon Whether a is or is depends v. Reader’s (See Briscoe mores and standards of community decency. porary Time, Inc., Association, Inc., 541; 527 F.2d supra, v. Digest Virgil supra, at p. 1129; Torts, 652D, of This is h.) question Rest.2d com. largely at p. supra, § Time, Inc., fact, v. (Virgil which a is well-suited to decide.18 jury uniquely 12.) F.2d at fix. supra, p. hands of a jury
Defendants that to would suffer at argue the right publish which, in to verdict unlike the trial be use likely general would more judge, Inc., Time, Virgil supra, In order punish unpopular persons. speech in a California case 527 F.2d the Court for Circuit the Ninth Appeals However, that risk any this that concluded recognized court danger. of litigation be checked at the scrutiny stages close prejudice may judicial verdict, notwithstanding such as directed summary judgment, judgment of cor- (Id., 1130.)19 entirely capable verdict. trial are Our court p. judges such recting jury overreaching. law,
These concerns where obscenity same are in the related field present (See community constitutionally standards define what is speech protected. 15, 24 L.Ed.2d 419, 430-431].) an Miller In California, supra, 413 U.S. an con obscenity prosecution important to make jury required equally id., at stitutional decision and has the task. p. been found up differ, see L.Ed.2d at we where reasonable minds could Accordingly, no the issue newswor infirmity constitutional to decide allowing Association, Inc., 4 Cal.3d at (See Briscoe Digest thiness. v. Reader’s 543.) Tort, Privacy Disclosure at pages 18See 223-229. by which it is community “It is the establish the conventions understandings shared (Gerstein, not.” just they when are understood when others invited into our lives and are Life, Right Privacy: Development the Protection Private Constitutional California’s *15 supra, Hastings omitted.) 9 at fh. Const.L.Q. 18, ante. 19See footnote
134
b. Newsworthiness as a Matter Lawof
Next, that, defendants urge body the first female student president Diaz was a College, and the fact of her sexual public figure, identity a newsworthy item as matter of law. We disagree. It is well settled that who seek office or will persons voluntarily public become involved in ingly affairs public waive their matters right privacy connected with their public (Kapellas Kofman, v. Cal.3d at supra, conduct.. 36-38.) The pp. reason behind rule be this is that the should afforded public every opportunity about facet which affect that learning any may person’s Inc., Association, for office. (See fitness Briscoe v. Reader’s Digest supra, 5; Torts, Cal.3d at p. 652D, e.)20 fn. Rest.2d com. supra, § However, the extent to which Diaz acceded to voluntarily position notoriety and the life public degree which she her are opened private ques Association, Inc., (Briscoe tions fact. Digest Reader’s Cal.3d at supra, 541.) As student Diaz for some body president, was a public figure pur Briscoe, However, poses. we test enunciated in cannot applying three-part state fact of her gender was se. per
Contrary claim, to defendants’ find we little if connection between the in any formation disclosed and Diaz’s for is a fitness office. The fact that she transsex ual does not reflect on adversely (Cf. her honesty Kapellas judgment. Kof man, supra, 1 Cal.3d a mother and candidate for Alameda [plaintiff, City Council, who minor left her repeatedly children could not main unsupervised, tain an action against a from for information taken newspaper publishing police of her records children’s behavior]; criminal Beruan v. French Cal.App.3d for of union Cal.Rptr. secretary-treasurer [candidate 869] local could not maintain action his based a letter six disclosing criminal prior convictions].)
Nor does fact that she was the first woman student body president, itself, warrant that her entire life private public inspection. open arena entered Diaz Public more figures small. concededly celebrated than she are entitled to some domestic ac- information their keep Torts, 652D, tivities sexual relations com. Rest.2d private. § h.)21 Tort, Privacy
20The Disclosure page at 194. Right Speak, supra, 21See page “[S]peech necessary for an and mean 962: effective ingful dialogue by and large require democratic does not to the intimate activities of references (Fn. omitted.) named individuals.” *16 of women in roles Nor is there merit to defendants’ claim that the changing The tenor of hollow. rings make this This assertion society story newsworthy. on a contem- no the public the article was means an attempt enlighten Rather, admitted, was directed the article social issue. as Jones himself porary Moreover, at the elected to the students about their College newly president. that the article Jones’ at humor at removes all pretense Diaz’s attempt expense of the information meant to utility educate social reading public. context, meritorious and in must viewed and not based some upon arguably unintended purpose.
Therefore, to answer the ques- we conclude that the was the body proper extended beyond tion whether the article was or whether it bounds of decency.
Insufficient of Malice Evidence was im Defendants next damages that the award urge punitive of malice since there was insufficient evidence to a finding proper, support that Jones of either defendant. The evidence demonstrated published part Diaz, that the information the article without first he knew contacting although on her. He testified contained therein would have a “devastating” impact sources his unidentified he obtain Diaz’s number from attempted telephone in the College but was unsuccessful. He admitted that he never telephoned about Diaz’s to contact Diaz. that his comment order Jones also stated an at in “P.E. was joke, classmates 97” other shower making arrangements to be tempt “flip.” “the defendant order to damages, In justify imposition punitive
‘ vex, or with a conscious “. . . must act with the intent to or annoy, injure, (Taylor disregard plaintiff’s rights. [Citations.]” [Citations.]”’ 693, 854], P.2d (1979) Court 24 Cal.3d Superior Cal.Rptr. 1977) F.2d omitted; (9th Cir. italics see also Maheu v. Tool Co. Hughes 459, 480; 594-595 J. F. 76 Cal.App.3d cf. Emerson v. Shea Co. 170].) Cal.Rptr. ar- whole, the article well Jones’ conduct preparing as a as Viewing evidence to ticle, was insufficient cannot as a matter of law that there say we of malice. finding support emotional distress severe knew that Diaz would suffer certainly
Here Jones Nevertheless, making the indignity by he added to from the alone. publicity severity the extent and knowledge Diaz the brunt of a The defendants’ joke. v. Farmer’s (See Neal is relevant to a of malice. injuries finding plaintiffs 582 P.2d Cal.Rptr. Ins. 21 Cal.3d Exchange *17 could jury have reasonably inferred from these facts that Jones acted with the intent to or humiliate outrage Diaz or that he published article with a conscious of her disregard rights.22
The fact that Jones verified the with unidentified story sources does not negate malice. The finding could jury well have concluded that ef Jones’ fort to discuss the article with Diaz was de minimis when to the compared magnitude harm. expected This is true since Jones was under especially no deadline to publish circumstances, this article. Under these could jury have reasonably concluded that Jones’ conduct evidenced a callous and con scious for disregard Diaz’s (See, interests. privacy Cantrell v. generally, Forest Co. Publishing (1974) 245, 419, 426-427, 419 U.S. L.Ed.2d 465].) S.Ct. Accordingly, acted well juiy within its discretion in awarding punitive damages. Tribune, Inc.,
The Oakland was also liable for since the punitive damages newspaper publishing reviewed company Jones’ article for approved (See publication. Egan Mutual Omaha Ins. Co. 24 Cal.3d 691, 620 Cal.Rptr. 141].) P.2d We are mindful of the dangerous, effect on inhibiting speech press Welch, large punitive award can damage (See have. v. Robert Inc. Gertz 418 U.S. 789, 810-811, L.Ed.2d 94 S.Ct. If retrial upon recovers a plaintiff we judgment, caution the trial court to scrutinize strictly award any punitive damages ensure that it is not used to silence unpopular and that persons speech it does not exceed the level proper necessary and deter similar punish behavior. Neal v. Farmer’s Ins. Exchange, supra, 13; Time, Inc., 21 Cal.3d at fn. Virgil 527 F.2d at fn. 13.) Compensatory Damage
Excessive Award Finally, defendants that the urge award was ex compensatory damage cessive. $250,000, awarded Diaz for emotional and largely psychological injury caused article. Diaz’s for special damages $800. psychotherapy approximated Woods, 22Respondent suggests also that Jones received the information from Dezzi director of College. student affairs at the testimony Woods denied this. There is that Jones and Woods had Also, administration, years. known each other for several part College of the Woods would target have been a of Diaz’s Respondent accusations of misuse of student funds. asserts that reasonable inference could be agreed publish drawn that Jones this information in order to ús,
embarrass Diaz. Based on the speculation evidence before such an inference is sheer and is not based on sufficient evidence. following adduced at trial established The evidence from insom- She suffered Diaz became and withdrawn. very article depressed ex- had memory lapses nia She nightmares. frequent and experienced result, in September in her As difficulty relationships. social perienced Sable, Ph.D. with Allen she treatments psychotherapy began *18 It loss. to out-of-pocket herein is not limited The actual involved injury community, in the and standing includes “impairment reputation generally Robert humiliation, (See and and anguish suffering.” mental Gertz personal Inc., Diaz Welch, The harm 811].) supra, 418 U.S. 350 L.Ed.2d at p. at p. damages and the amount of to have suffered is not alleged easily quantifiable, Bertero v. Na left to must be the sound discretion of the necessarily jury. 184, 43, P.2d tional General Cal.3d Corp. Cal.Rptr. 608, 65 A.L.R.3d (Id., 61.) A
As all in at a rule are favor the judgment. p. presumptions it be said that court must not the verdict unless it can reviewing interfere with 64; (Id., was result on the at p. the “passion prejudice” jury. part Los Transit Lines 56 Cal.2d 508-509 Angeles Seffert P.2d 337].) Cal.Rptr. and Here the fixed the evidence hearing being proper- after the damages un- was emotional and ly suffering instructed. evidence of Diaz’s distress in- after the That Diaz able to in her classes contradicted. earn marks high suf- not trauma she cident does minimize or the emotional negate necessarily fered and will continue suffer.
Also, on this same issue. the trial denied a motion for a new trial based judge court, is entitled to great While that determination is not this it binding upon (Bertero 64; 13 Cal.3d at Corp., v. National General weight. Seffert Lines, 506.) Cal.2d v. Los Transit Angeles the and scope and the trial were in the best evaluate position The jury judge and observed testimony of Diaz’s heard the injuries. They severity it is is it cannot be said that of the award high, witnesses. amount Although humilia- and future past pain so grossly disproportionate, considering tion, as to excessive a matter of law. as each bear their shall is respondent reversed. judgment Appellants
own costs appeal.
Scott, J.,P. concurred. Acting
FEINBERG, I concur I with in judgment. agree except J. opinion sofar as opinion discusses issues of malice and the excessiveness Because the award. not reversed on I would venture judgment grounds, other into that discussion. to read
On were modified February opinion judgment above. printed
Appendix