*1 24, 1969.] F. No. In 22666. Bank. Oct. [S. KAPELLAS, Minor, etc., al., DALE et
RICHARD Plaintiffs KOFMAN, v. ABRAHAM Defendant Appellants, Respondent. *6 Counsel
Gonick, & Schmid Bernstein and Louis M. Bernstein for Plaintiffs and
Appellants.
Hardin, Fletcher, Cook & and Viadro for Hayes Defendant and Cyril Respondent.
Opinion on and her own behalf filed suit on
TOBRINER, Plaintiff Inez J. Kapellas Kofman, against owner defendant her children Abraham of minor behalf Advertiser,1 and Times Star of Times Star the Alameda and publisher amended The third editorial. awith newspaper connection published cause The first of three causes of action. sought consisted complaint behalf own on damages Mrs. and Kapellas’s recovery general punitive Alameda Times defendant in the material for libelous alleged published for for damages The second cause Star Advertiser. prayed Times Star Kapellas. cause Mrs. The third behalf children libels on the alleged invasion of an actionable editorial constituted that the privacy alleged minor children. Kapellas’s two causes demurred to first The defendant ground upon one because it concerned editorial qualifications that privileged did not office, further a ground plaintiffs seeking upon public Civil in the manner demand for retraction sufficient required allege action, defendant demurred third cause of Code section 48a. As to the an actionable invasion did not constitute basis that the comments upon who comments of the children’s it contained “regarding persons privacy: trial interest.” The matters were of interest and were about public public and thereafter amend court sustained the demurrer without leave court’s the trial we concur in dismissed the entire action. Although action, shall we as to the third cause of affirmation of demurrer point in the first two causes out establishes actionable that complaint counts. an editorial2 on
The case emanates from one of page Kofman, Star, joined initially the Alameda 1Plaintiff Sara Times and the Times Star We Publishing Company additional defendants. can discover as no lower court motion defendants, any in the record dismissing parties as nor indication these suit; agreed parties. appeal from the the notice of referred to to dismiss them all has court, however, designates hearing by petition this Abraham Kofman as the event, any respect to defendant. the substantive issues are identical with all the sole In initial defendants. First 2‘Children’s Welfare Must Come political has “Mrs. Inez taken forceful interest matters in Alameda City and now is a candidate she Council. course, altogether fitting proper democracy, and it is that Mrs. “This *7 is Kapellas should run if she wants to. of her decision. question “But the wisdom we twice, see, young the mother of six Kapellas, who has been married is “You Mrs. children. “Now, family, growing quite a as all know. And children need is we six children and care. attention constant job keeps away during already which her from her home Kapellas a has “Mrs. chores, kept away will find that City Council she also she is on daytime. If she takes many evenings. on children her from wondering the children involved. We are thinking of the best welfare are “We 25, 1965, Alameda Times Star on and on three February republished page the Times Star Advertiser on March certain discussing alleged (hereafter facts as to Mrs. who was at the Kapellas designated “plaintiff”), time a candidate for the council. city
On March one week after first editorial in the Alameda appeared Star, Times sent a to defendant plaintiff’s letter3 Abraham attorney Kofman a “correction” of the On demanding article. March 5 the attorney if the Kapellas children of Mrs. won’t be victims if mother elected innocent their is City to the Council. Kapellas’s obligations, present, “Mrs. at least at the would be seem to more to her family, city adopted years ago. home and than to she as home some reports police Kapellas Kapellas “There are on the Alameda blotter which show that Mrs. home, fact, anywhere is needed her else. more than she is needed In great police, police have caused children shows. a deal of bother for local blotter picked up suspicion shoplifting. “One has been for son Another son been has loitering attempted burglary, truancy, in trouble for sum found the and and was once found awith money which he first said he found but police had on the beach which later boy purse. girl had from his little has taken mother’s One found been wandering on the street and had to several times be taken home. “Neighbors, shows, police County appealed blotter also Alameda have attorney’s language here—complaining emanating district office of foul obscene and Kapellas neighborhood by from the household and heard children. innocent reasons, Kapellas to, City “For we not all these can endorse Mrs. for election to the give We feel with six to attend she must them her first Council. consideration. that children courtesy Kapellas, publishing “Out we have various to Mrs. would refrained from supposition ‘picking’ police reports on repeatedly newspaper lead to the that this her, though youngsters they policy it to name even of the Times Star when get into trouble. feel, token, “We the same that it is duty now our to advise the bring- voters. In ing saying only out these facts we are children, that children need Kapellas care—the others, give like all need constant care—and who it will if them their mother be- up wearying, demanding comes bound and constant duties of the City Council? every parent certain position. “We are will understand this voters, therefore, urge children, consider, “We to consider these little and to too, Kapellas City tough taxing job, that is a the away Council and one that keep and would Mrs. good from her children a deal—and too much time.” 3“Notice Hereby every “You Are concerning that statement the- conduct Notified Kapellas every concerning children of Mrs. Inez statement Kapellas’ qualifications denoted City suitability Council and her mother as made in the article First’, anas Editorial and entitled ‘Children’s Welfare Must Come pub- February thereof, Alameda page lished in the by Kapellas, pellas, Times Star on on are claimed children, Kapellas, Gregory Mrs. Inez and her Richard Kale Philip Kapellas, Christopher Kapellas, Caron Michelle Robert James Ka- Alan Angela Kapellas and Therese libelous. is accordingly persons undersigned “Demand made on behalf of said published substantially of said conspicuous correction in said statements be as a manner libelous, newspaper regular as said were statements claimed to be issue upon you. thereof within three default weeks after service of this notice In correction, against bring general of such persons you said intend to an action exemplary, damages.” special as well as
28 the editorial in the of as the an identical letter to republication
dispatched
notices; he
these
did not
to
Kofman
Times
Advertiser. Defendant
reply
Star
his belief in
nor asserted
neither
clarification
demands
sought
of
correct
did not retract or
Defendant
truth of
editorial.
any
published
statements
in the editorials.
contained
proceed
explain
separate headings
(1)
allega
We
to
under
complaint
privilege;
tions of the
as to malice defeat defendant's defense of
(2) plaintiffs alleged a sufficient demand for retraction in the manner
required by
(3) plaintiffs
Civil Code section 48a4 and
fail to establish in
privacy.
their third count an actionable cause for an invasion of
privilege
allegations
1. The
malice
defense of
defendant’s
defeat
of
complaint
question
Since the instant
discloses that the editorial in
upon
qualifications
plaintiff,
commented
of
a candidate for the Ala
City Council,
publisher acquired
qualified privilege granted
meda
by
47,
(Snively
Publishing
Civil Code section
subdivision 3.5
v. Record
(1921)
565,
1].)
explain,
[198
Co.
185 Cal.
571
P.
As we
however,
plaintiff's allegations
defendant fails to establish that the
of malice
privilege. (Cf.
do not suffice to defeat this asserted
Locke v. Mitchell
(1936)
922];
(1956)
[61
Supplementing damages any “1. provides part: in relevant In action for 4 Section 48a broadcast, plaintiff shall publication or of a slander radio newspaper, of a libel in a special damages be not unless a correction be demanded and recover no more than broadcast, provided. upon serve published as hereinafter Plaintiff shall or broadcast, place publisher, place publication at a written at the or broadcaster demanding that claimed to be libelous and the-same specifying notice the statements knowledge days corrected. must be served after Said notice and demand within cor 2. If a broadcast of the claimed"to be libelous. publication or statements sub period published broadcast within said and be not or rection be demanded broadcasting station newspaper said or said stantially conspicuous as a manner in on libelous, regular or issue thereof to be were the statements claimed as service, plaintiff, pleads proves if weeks after such he broadcast within three such maintained, notice, correct, and if of action be demand and failure his cause damages . .” special exemplary . . may general, recover . privileged publication is made . . provides part: “A one 5 Section47 in relevant communication, malice, therein, (1) by one a person without interested 3. In a interested, (2) person to the relation is also or one who stands in such who interested communi ground for the supposing the motive as to afford a reasonable give the' innocent, (3) requested by person interested cation is or who information.” proof additionally only satisfy.the at trial 6 Wenote of malice must not must, course, statutory requirements privilege meet the of our but demands .the York Co. v. Sullivan As held in New Times 376 U.S. federal Constitution. 706-707, 1412], 84 S.Ct. 95 A.L.R.2d and re L.Ed.2d 279-280 132,. L.Ed.2d v. Louisiana U.S. iterated in Garrison only against 209], one who issues if recover such S.Ct. false, knowledge that or it was disregard so “with with did reckless defendant Reading complaint light present favorable or not.” most false it whether *9 editorials, fully, wickedly, maliciously” printed complaint a detailed account of .and conflicts between the alleges past continuing defendant and Thus first that states defendant’s plaintiff. plaintiff hostility her activities, 1964, arose out of her toward as the leader of a initially Citizens “Alameda Protection of group, Rights,” Property and led a successful an urban renewal ballot organized against campaign in the of Alameda. Defendant the ballot proposal City allegedly supported measures and would have realized substantial financial if the urban gain renewal had been project approved. The further states that one of the candidates complaint opposing plaintiff council election was an or officer” of a owned city “agent company
and controlled
the defendant.
friction
Additional
between
parties
resulted from the
announced
to a series of
allegedly
plaintiff’s
opposition
real estate
Alameda,
in which
developments planned
developments
defendant
had invested a
The
purportedly
sum.
significant
complaint
recounts a conversation in which
that
finally
defendant warned
if
plaintiff
she did not remove herself
aas
candidate for the
“he would
council
city
all the ‘dirt’ he could find
As a result of
print
concerning plaintiff’s family.”
this hostile
defendant
relationship,
complaint alleges,
published
editorial “well
that it was false or with reckless
knowing
disregard
whether it was false or not.”
This court has in the
held that
of malice
past
allegations
consistently
similar to those set forth above defeated the
of section
qualified privilege
(Maidman
47.
Publications,
v. Jewish
Inc.
Baptist 713]; Cal.2d 797-799 P.2d Washer [197 v. Bank America (1943) 21 Cal.2d 1338].).
A.L.R. In the instant case has alleged of detailed facts presence which would fact trier of that justify finding defendant editorial because of “hatred or ill will primarily towards the (Civ. Code, 48a, see, 4(b); subd. Maidman plaintiff.” § e.g., v. Publications, Inc., Jewish 643, 654; v. Cal.2d Hearne De Young (1901) 576]; Cal. 361-362 Hearst P. Davis v. *7 (1911) 160 Cal. 530].)* 157-163 P. of malice allegations are thus sufficient to the defense of the of section 47. dispatch privilege plaintiff, demurrer, required as we are con passing to do on we find requirements stitutional adequately alleged. of malice are argument 7The allegations has been advanced that these of malice toward Kapellas fail to the libel children. of the children’s close sustain claims of her Because mother, however, relation their about redound misstatements their conduct would mother; showing detriment of their of malice toward Mrs. thus prima facie any contravenes presumption defendant’s statements about (cf. Code, §47, 3(2)), were children innocent Civ. subd. illustrates that “by protect was motivated cause other than the desire to the interest [a] (Brewer protection privilege given.” Baptist for the of which the v. Second Church
2. alleged a demand' retraction in the manner Plaintiff for sufficient .required by Civil Code section 48a enacted a Civil Code section 48a to Legislature encourage more active means of an increased insulation of from by press newspapers ******8 liability from erroneous statements.* The statute arising repre libel,9 sents a significant from common law which at one time change a libelled even an innocent misstatement permitted to recover plaintiff by general (See, without actual Peck damages v. Tribune injury. e.g., proving (1909) 185, Co. 960, 214 962, U.S. L.Ed. 189 29 S.Ct. 554] (Holmes, J.); 262, Taylor (1895) 392].) v. Hearst 107 Cal. 269 P. Under section 48a an individual cannot recover anything beyond “special unless he shows that he has within 20 after damages”10 requested, days of the that the correct the libelous learning publication, publisher allegedly material, and that has failed to do so. The section also publisher that the for provides correction must be made “a written notice request ,”11 the statements claimed to be libelous. . . defend specifying Although ant asserts that notice does not or plaintiff’s sufficiently satisfy specifically statute, terms of the we believe that it so. does . The purpose described is to requirement specificity facilitate the whether efforts in state- publisher’s investigative determining (1948) 791, 32 713], Cal.2d Noonan v. Rousselot 239 [197 P.2d See Cal.App.2d Cal.Rptr. ' Further, damages we availability exemplary do not that believe need predicated showing on a case which of malice toward each individual child in a in - may it “hatred be shown that the the children from defendant’s misstatements about arose damages or imposed ill will” Exemplary toward their mother. are “for 48a, sake of and one (Civ. Code, 4(c)) example by way and punishing § defendant” subd. a dispute injure who party libels an to innocent with whom he has no in order party third may thought reprehensible well be than an individual who libels more only antagonist. interpret To 48a, his (“no section 4(d) exemplary subdivisions and ddmages may be defendant made plaintiff prove recovered that unless shall malice;” arising . . . with “actual malice is that state of mind actual .”), from hatred each child plaintiff barring recovery or ill will . . such unless toward the as subject could hatred would personal show that he of defendant’s was the illogically grant greater disputants innocent who protection to the than to individuals may be injured; exemplary damages deliberately light purposes of the stated (§ 48a, 4(d)) the same provision accept interpretation. we cannot such an subd. Cliff, Pretzler, Therapy Galloway, Harvey, 8See Case: A The Werner and Litigious (1952) Hastings Paranoics section amended 140. In 1945 the L.J. protection broadcast, to extend its So. to see Comment slander radio Cal.L.Rev. 124-125. 9See 38 (1950); Hastings Cal.L.Rev. 951-953 (1951). L.J. 76-77 48a, 4(b), 10Section “special damages” subdivision defines as: damages “all alleges plaintiff proves business,' that he has suffered respect property, to his trade, profession- including occupation, or such money amounts of as the alleges proves expended he has alleged libel, as result of the and no other.” allege any Plaintiff special damages does not in this case. 4, supra. 48a out 11The is set at footnote text of section contained should be corrected. in the initial article error By merits libelous, considers notice remarks designating objector his enable narrow the We investigation. recognize, publisher scope however, retraction of a statement do not that letters written request will we cannot conform formal compose legal complaints; expect they a the to the law section 48 niceties of common In enacting Legis pleading. lature intended afford to correct committe an publishers opportunity
derrors before them to did not intend to build technical it subjecting *11 liability; barricades to the had who notice sufficient to individual given recovery advise a faith of the error. reasonable in claimed acting good publisher
The crucial issue in notice evaluating the the turns on adequacy whether the should have state publisher reasonably comprehended (MacLeod ments and v. Tribune wished corrected. plaintiff protested Co. Cal.2d Publishing libelous,
The notice the as" and in instant case labelled requested of, correction statement the conduct of the children of “every concerning Inez Mrs. statement Kapellas every concerning Kapellas’ qualifi cations for the and her Council as mother” contained in City suitability notice, the articles. first the clause of specified designating every libelous, statement the children’s conduct as is both concerning specific when read in with the comprehensible, especially conjunction questioned article. instances, The tenth of the editorial details several paragraph blotter, on the Alameda three the appearing involving police children; these are the statements actions only relating specific performed about children, the and the to notice’s references statements the “conduct” of the children was clear to inform defendant surely sufficiently that it was these were that objectionable. Although pronouncements defendant that he contends could not attacked the ascertain notice blotter, of the accuracy in the statements about the children the notice police statement the conduct of the children” in the specified “every concerning article and should have been to include the reasonably read assertions blotter.12 police Co.,
In MacLeod v. Tribune Cal.2d Publishing defendant had an article an inti which included newspaper mation that another a “Communist-line had endorsed the journal, paper,” 48a, office. court section this plaintiff’s candidacy city upheld Applying which, demand for correction after forth adequacy setting plaintiff’s provision 12The earlier- parallels requirements demand an section 48a Statutes, (originally enacted Minnesota retraction statute. Minnesota section 548.06 191). identically construing worded enacted as Minn. Gen. Laws specificity requirement ch. In Supreme con of their statute in Minnesota Court concerning notice, designating . . charges published that a . cluded the as libelous “all conduct, satisfy plaintiff]” sufficiently specific advice or actions [of the (Mahnke Publications, Inc. statute. v. Northwest 266 Minn. 411, 415].) (Italics added.) N.W.2d and I article, libelous “This article is stated grossly offending simply: be corrected or retracted as therefore demand that the same provided 48(a) of the of California.” We reasoned Section of the Civil Code State once to that article referred only since general original plaintiff notice sufficiently objected informed publisher plaintiff of the statement that referred to him. In specificity light purpose a, centered on 48 we that our concern of section recognized requirement notice, whether, and the the nature of the in the article statements given language should have what reasonably publisher “realize[d] 554.)13 (52 Cal.2d at to and wished corrected.” objected p. the instant from
Defendant insists that MacLeod should be distinguished here. the editorial was much shorter than case because the article there MacLeod, however, became The relative of the article length important of the notice the extent that it affected the only comprehensibility itself, statement; and of ease of the contested length, identifying, find that in case the notice’s Since we the instant cannot determinative. *12 of the children statement the conduct concerning reference to “every the the “from identifies instances recounted Mrs. reasonably Kapellas” editorial, a whole and that the editorial taken as blotter” police statements, the fact that the state- of these not alter the meaning does a the article does not affect longer only ments part comprise of the notice. adequacy contends, however, that Anderson v. Hearst Publish further
Defendant 850, 1954) (S.D.Cal. the conclu Co. F.Supp. ing compels opposite libelous the article contained allegedly eight In Anderson separate sion. demand for correction stated references to plaintiff’s only plaintiff; “certain statements me which 'are that the article contained regarding The federal district untrue, court found this notice libelous damaging.” MacLeod, Anderson we noted when on As commenting inadequate. failed to indi “certain statements” language give publisher any levelled; were on the other of the statements to which cation objections case, hand, the instant directed to statements the notice in specifically conduct, from the the children’s draws clear distinction concerning (52 553.) made Anderson. Cal.2d at demand p. retraction of the-
Since we
of the demand for
sufficiency
uphold
conduct,
be entitled to
children’s
would
statements
concerning
these
libel
because of defendant’s failure
correct
maintain her
action
additional
in her notice.
statements even in the face of non-specific
requests
Mahnke v. Northwest
Publications,
Inc.,
522 [124
266 Minn.
13Cf.
specify each
indispensable
the demand for retraction
N.W.2d
particular part
“It is not
416]:
defamatory matter.
false and
published article
contains
of a
.which
together,
diffi
if,
publisher can without
notice
the article arid
It is sufficient
from
sting
expected to retract.”
and which it is
culty
contain the
determine the words that
Uhlman v. Farm
(1914)
N.W
(See also,
[148
&
Co.
The second and for City statement qualifications Kapellas’ concerning “every are demands These concededly mother.” as a and her Council suitability one, but, the nature of questioned given the initial than less specific do not editorials editorials, is explicitly their justifiable. imprecision she an or that is council for the not state that Mrs. is city qualified tone, find that mother, but unsuitable language, might reasonably jury of the editorial these conclusions. and format imply
haveWe long recognized raised by that false inferences or implications the arrangement and phrasing non-libelous apparently statements be can as injurious as we have explicit libel actions epithets; upheld founded on such (See, implications. Campbell Bates e.g., v. 213 Cal. (“A defendant is liable what insinuated, 383] as well as Holt, what is stated explicitly”); Bettner v. 70 Cal. P. (“[N]ot is the only language
713] to be employed regarded with reference to the used, actual words but to the according sense and under all meaning the circumstances attending such language may fairly to have presumed conveyed to those to whom it was published.”); *13 Cameron v. Wernick Cal.App.2d [60 Cal.Rptr.
102]; Review, Daily Williams v. Inc. Cal.App.2d [46 Cal.Rptr. the of a When basis claim of libel lies in an implication flowing from the rhetoric of a publication, allegedly damaging implication cannot frequently be connected to any one state ment, or statements, to even a few specific but rather emanates from the tone of the article as a whole. In instance, such an section 48a’s require ment specific notice must interpreted light the nature of the alleged libel. The mere withdrawal of statements not be specific adequate purge original thus the implication; notice requesting correction will be tailored necessarily to mis-impression given.
Since inferences drawn from an article may differ to extent some with each reader’s reference, frame of subjective an notice should adequate inform the which claimed publisher of the article is implication allegedly libelous. Again, this must be requirement in a reasonable interpreted manner. In instant case defendant’s editorials purported as true report a series of errant behavior plaintiff’s children by “causing great deal of bother for local police.” editorials also stated that plain tiff’s work her kept away good from home deal of the time. Plaintiff’s notice asked for correction of concerning Kapellas’ “statement[s] Because as a mother.” her suitability for the Council City
qualifications conclusions, defend basis for these contained no editorial explicit the statements believed that ant infer that plaintiff could reasonably an that she was her children about her and implied that were unsuitable mother and office. city unqualified its effect “not so much when to the subjected the editorial
Viewing law, but of a trained in the natural critical mind analysis probable (MacLeod reader” Publish effect mind of the v. Tribune average upon Co., 536, 547, Campbell (1931) v. ing supra, 52 Bates quoting Cal.2d 383]), find that the article in is we Cal. question Under the circum to such an interpretation.14 reasonably susceptible edi ask for a correction of the stances Mrs. could reasonably than for a retraction or rectification any torial’s rather implications statement; therefore conclude that the notice individual we adequately satisfied the of section 48a. requirements or demurrer indicates that
Nothing complaint defendant en countered the notice. difficulty Under any interpreting the facts as alleged- defendant received the letter from plaintiff’s attorney early but neither statutory 20-day sought clarification nor period so much as informed counsel or her claimed presently plaintiff ambiguity circumstances, Under these cannot believe that defend request.15 “[w]e ant unaware of the of what significance was so it that it did not printed realize what . . . to and wished objected (MacLeod corrected.” v. Co., Publishing 554.) Tribune 52 Cal.2d at p.
3. to establish an The third count actionable cause an invasion fails privacy
The third count of the amended complaint alleges editorial in constitutes an actionable invasion of Mrs. question privacy questioned susceptible inter libel which the statement to several 14In actions in pretations, of the court is to determine whether the initial function *14 meaning. reasonably to have a It then becomes could have been understood libelous meanings potential to the evidence which of jury’s the function determine from the Co., (MacLeod Publishing actually by readership. v. Tribune was drawn the Publications, Inc., 546-547; 643, 536, supra, 54 52 Maidman v. Jewish Cal.2d Cal.2d 651.) readership jury -conclude that the did not draw the inferences Thus if the should correction, be the alluded to in her demand for it would plaintiff from editorials arising from compelled respect with to the claimed libel to find in favor of defendant implications. such publisher’s request a for clarification of the appropriate evidence of 15In an case clarity question of the reasonable of the notice. be on the demand would admissible damages mitigation any punitive in of claimed evidence also be admissible Such 394, 129]), (cf. (1896) or to illustrate 115 Cal. 401-402 P. [47 Turner v. Hearst rebutting request clarifica good a contention of for faith malice. A defendant’s in the tion, finding original inadequate. notice course, a does not of necessitate Publications, 515, (1963) (See Inc. Minn. 517 [124 v. Northwest 266 Mahnke 413].) 411, N.W.2d minor of children. invasion rests privacy Insofar as claimed Kapellas’s the on of defendant intimate details of “the unwarranted publication [the (Coverstone (1952) v. Davies 3 Cal.2d private children’s] [lives]” 876], (1952) sub nom. Mock v. Davies cert. den. U.S. [239 50]), this states cause of action allegation L.Ed. S.Ct. and the initial libel count.16 In such an distinct from separate the of the content of inaccuracy does not an rely action a upon article; instead, if accurate the of the facts he that even charges (Melvin (1931) Reid “right with to let alone.” v. interferes his 91].) P. 289 [297 Cal.App. an the of gravamen
When such assertion an composes action as the cause falls outside the to a to right against newspaper, privacy the of for section 48a Since coverage. cases category contemplates but rest a statement inaccuracy does of complaint upon not upon article, the no gains unwanted from an resulting private party publicity but, of the article on the retraction or correction from subsequent relief suffers find no injury additional contrary, repeated exposure. We a, the intended relieve indication that in section 48 enacting Legislature from effective individual’s sanction an any right newspapers violating privacy.17 case, however,
The facts of the
do not
present
an action
support
for this kind of
With
invasion
of the common
privacy.
expansion
law’s
anof
individual’s
came a concomitant
protection
privacy,18
recogni
tion of an
and
enshrined,
equally important,
constitutionally
competing
interest of the
in information of
matters.
public
Sensitive to the
newsworthy
tort’s
encroachment on the freedoms of
privacy
potential
speech
torts,
Prosser has
dealing
16Dean
identified four distinct
with the
of four
invasion
plaintiffs,
variously
different interests of
which have been
decided under the appellation
“right
privacy.”
designation
general
His
breaks
category
down the
into cases
(1) intrusion,
(2)
public
facts, (3)
private
light
disclosure of
public
false
in
eye,
(Prosser,
appropriation.
(3d
1964) 829-851.)
Law of Torts
ed.
plaintiff’s right
Insofar as the instant
privacy
light
action
is of
“false
public
variety, resting
eye”
allegedly
statements,
on
false nature of the editorial
we
equivalent
claim,
find
action
is
substance-
to the children’s libel
should
requirements
meet
proof
case,
the same
aspects
libel claim
including
on all
Time,
(cf.
v.
of malice
Inc.
Hill
36
a broad
the truthful
have
our courts
recognized
privilege cloaking
press,
Davies,
(See
v.
Coverstone
matters.
of all
supra,
newsworthy
publication
Reid,
290;
285,
323;
supra,
315,
Melvin v.
112
cf.
Cal.App.
38 Cal.2d
Spahn
324, 328, [274
Messner,
v.
N.Y.S.2d
Julian
(1966) 18 N.Y.2d
Inc.
543].)19
the courts still have
Although
only hesitantly
221 N.E.2d
877,
of the
the facts
the boundaries
sketched
“newsworthy”
pub
category,20
children in the editorial in
fall
lished about the
clearly
question
the case
evolved
law.
the allowable limits
within
through
incident
“newsworthy”
whether
determining
In
particular
truthful
from
shields its
thus whether
liability,
publication
privilege
factors,
value of the
of
social
consider a
the courts
variety
including
into
of the article’s intrusion
facts
ostensibly private
depth
published,
affairs,
acceded to
and the
to which the
extent
party voluntarily
position
(1952)
Co.
(See
v.
38 Cal.2d
Gill Curtis
of
Publishing
notoriety.
public
273,
If the information reported
278-279
P.2d
[239
630].21
an
or the intrustion into
has
become
domain”
part
“public
previously
even
life is
will
individual’s
only slight,
privileged
private
publication
(See Gill w.
the social
be minimal.
of
utility
though
publication
P.2d
(1953)
Co.
Because of their government public responsibilities, case dates for such office have been considered almost paradigm always scrut of the most who should be thorough figures” “public subjected must, them, In those are to who public iny.23 govern choosing facet of a course, about be afforded the any learning opportunity Time, Hill, 374, right supra, involving Inc. v. 385 case a variant of 19In U.S. “fictionalization,” privacy Supreme Court dealing to that publications. proscribes the United States found with Constitution, force, newsworthy qualified privilege for establishes a its own question whether the Constitution expressly did reach the The court not liability the truthful of such matters imposition any 464, (385 pp. 384 at in all cases. at 383 & fn. L.Ed.2d pp. U.S. Reid, (disclosure plaintiff’s 20Compare supra, past Cal.App. reformed, v. 112 285 Melvin actionable) v. with Werner prostiute, years life as a 15 after she had Co., (redisclosure involving Cal.App.2d 111 scandal Times-Mirror actionable). events, public attorney, years was not district after the Bloustein, Privacy, Tort and the Con analyses Law 21Compare suggested Petty Well? and Unconstitutional as stitution: Is and Brandeis’ Tort Warren Court, Supreme 622-627, Note, Term Tex.L.Rev. Harv.L.Rev. 164-165. Prosser, Privacy, supra, 417. 48 Cal.L.Rev. 22Cf. Stryker Republic Corp. (1951) Cal.App.2d 23See, Pictures e.g., v. Right 670]; Defamation, Know: Privacy A Wright, Public’s
37 v. (See Garrison that relate to his fitness for office. life candidate’s may 64, 125, 134, 209]; 85 L.Ed.2d S.Ct. (1964) U.S. 77 Louisiana 379 [13 Reid, 285, 290.) v. 112 Melvin supra, Consequently, press Cal.App. to disseminate all information that
must “breathing given ample space” As the United States cast on a candidate’s Supreme may light qualifications. Louisiana, 64, Garrison v. 379 U.S. 74-75 Court emphasized 125, 133, affairs L.Ed.2d 85 S.Ct. concerning [13 209]. public “[S]peech is more it is the essence of First than self-expression; self-government.
and Fourteenth Amendments
our
national commitment
embody
‘profound
uninhibited,
to the
that debate on
issues should be
robust
principle
public
vehement,
and that
it
include
caustic and
well
may
wide-open,
sometimes
attacks on
officials.’
unpleasantly sharp
government
public
New York
Times
Co.
v.
Sullivan,
376 U.S.
[254]
270
[11
L.Ed.2d
686,
700,
710,
84 S.Ct.
beam of interest and attention. v. Stryker Pictures Republic Corp. (1951) (“A P.2d Cal.App.2d politician, 670] office, effect, offers his running life for public public private so far as it affects office.”); his bid for Baldine v. perusal Sharon Herald Co. (W. 1966) Pa. 443; D. cf. Cohen v. (1949) Marx F.Supp. 320].) Cal.App.2d Generally, courts will
be most reluctant to the free flow of truthful information that impede any may be relevant to a candidate’s for office. qualifications Although conduct of a candidate’s children in cases many not may appear par ticularly relevant to his office, qualifications normally public should be to determine permitted or importance relevance of the facts for itself.25 If the reported does not publication proceed widely Approach National (1968) 630, 632, Problem and A New 46 Tex.L.Rev. 636. See generally, Meiklejohn, Absolute, Sup.Ct.Rev. 245, The First Amendment is an 259. noted, 24As we have the extent to which voluntarily an individual entered has into sphere public may determining protection be relevant to be afforded his (Cf. privacy. Associated v. Press Walker 388 U.S. 154-155 L.Ed.2d 1094, 1110-1111, case, however, 87 S.Ct. In the instant on children right privacy whose behalf this neatly count is maintained do not fit into either of categories the somewhat artificial “voluntary” “involuntary” public figures. or give Although pleadings no hint of extent to which the children themselves propelled scrutiny, influenced decision which them public onto the wide screen of anonymity their desires for probably and seclusion were considered before she decided to public legal seek to the office. Whatever we attach label matter, of the status children in this we hold that the nonconfidential must nature (Cf. conduct privileged. disclosed renders v. Fawcett Carlisle Publications, (“a Cal.App.2d Cal.Rptr. necessary Inc. 747 [20 405] corollary figure’s right relinquishment public privacy] people [to closely public figures right related to such . . . must also to some extent lose their have”).) privacy that one unconnected with the or would famous notorious members, 25Family closely individuals, newsworthy or others associated with have maintaining precluded from actions for of privacy been invasion under circumstances *17 38 facts about those in and reason of bounds disclosing propriety
beyond office, the to an related public compelling for aspirant public closely will of dissemination information outweigh unfettered interest to such individuals’ in interest rights privacy.26 society’s preserving a free of of the retention one of the costs of is children’s loss privacy ideas. of marketplace to
The editorial in
disclose only incidents
question purports
blotter;
on the Alameda
had
been recorded
which
such
initially
police
(Cf.
have
matters of
record.
public
been
Carlisle
already
events would
v.
Inc.,
Publications,
201
733
an
Fawcett
event
supra,
Cal.App.2d
(marriage
not violate
and disclosure does
to
“of
record”
right
public
privacy);
Co.,
Aquino
supra,
(same
v. Bulletin
190 Pa.
528
422]
A.2d
Super.
are
faced with an
divorce).)
we
not
article which
Thus
intrudes deeply
children’s
incidents of a
into the
or
revealing
privacy by
wholly private
have
confidential nature.27
arrests or
traditionally reported
Newspapers
criminal
other incidents
and courts have
involving suspected
activity,
events are
matters
concluded
such
of which
universally
newsworthy
Davies,
(See,
to
has the
be informed.
Coverstone v.
public
right
e.g.,
315, 323;
(E.D.S.C.
supra,
1959)
Firth v. Associated Press
38 Cal.2d
671.)
176
of such information
after
F.Supp.
Although
publication
long
occurred
in some cases not be
if the
may
events
privileged
reported
Reid,
(see
lost
v.
instances have
all
Melvin
112
supra,
public importance
Publications, Inc.,
285;
supra,
cf. Maidman v. Jewish
54 Cal.2d
Cal.App.
Co.,
cf.
v.
653. But Werner
Times-Mirror
193
Cal.App.2d
the societal
interest
in
in disclosure
compelling
Was much less
than in the
Publications, Inc., supra,
Cal.App.2d
201
(See, e.g., Carlisle v. Fawcett
instant case.
barred);
(action by
girl
House,
movie actress
of
who later became famous
733
former husband
(1966)
Hemingway
Inc.
Given access to all relevant information about importance public candidates for office and non-confidential nature of the public reported conduct, children, true, statements about if must be Kapellas considered Thus the court sustained the absolutely privileged. properly demurrer to the cause of action an invasion of the alleging privacy children. plaintiff’s of dismissal of the third count is affirmed. The judgment judgment
dismissal of the first two is counts reversed with directions to the trial court to overrule the demurrer as to these two counts and allow defendant to answer. J., Peters, J., Sullivan, J., C. and concurred.
Traynor, BURKE, J. I concurin the to the extent it holds that the opinion third count fails to state cause of action for breach I how- privacy. disagree, ever, with the-conclusion that the first and second counts are sufficient to state causes of action for libel. Since the third amended seeks dam- complaint general exemplary counts, under two libel one on behalf of Mrs. ages separate Kapellas,
one children, on behalf of her both counts must with allege compliance Code, section 48a of the Civil written demand for retraction requires of actual malice. proof Although the demand for retraction have been sufficient to support count, the children’s errs in assuming that opinion Mrs. there Kapellas fore is entitled to maintain her own action “even in the face of non-specific additional in her notice.” requests (Ante, 32.) p. The demand for retraction was with to Mrs. inadequate respect Kapellas’ 48a, count,
libel for section subdivision “a written notice requires the statements claimed to be libelous and specifying demanding same (Italics added.) be corrected.” The word is defined as “specify” “To manner; or mention name in a or or tell state or specific explicit precisely (Webster’s . detail. . .” New (2d ed.) Internat. Dict. at 2415.) p. Where is libel to consist should alleged solely implications, plaintiff the exact statements specify from which these implications arise.
Mrs. demand did not retraction of but Kapellas’ request “implications” referred to statement “every concerning Kapellas’ qualifications Council and her (Italics added.) as a mother.” City suitability This insufficient, out, for as the “The language clearly opinion points qualified do state that Mrs. is not for the not editorials Kapellas explicitly (Ante, 33.) p. an unsuitable mother. ...” or that she is council city malice, of actual no With sufficiency allegations respect acted which would defendant with facts are finding alleged support 48a, Code, (Civ. ill toward children. subd. “hatred or will” § Kapellas holds that Mrs. 4(d).) sufficiently Although correctly opinion her, actual those facts malice toward would disclosing allegations alleged her children’s libel count. not support
I would conclude that the first count insufficient because *19 retraction, count and that the second notice inadequacy insufficient, because it fails facts as allege damages, exemplary actual malice. disclosing
McComb, J., Mosk, J., concurred. denied November for a rehearing petition Respondent’s and'Burke, Mosk, J., above. to read as was modified printed and the opinion J., should be granted. opinion petition were