Orlando Cepeda v. Cowles Magazines and Broadcasting, Inc., a Corporation

JERTBERG, Before CHAMBERS and Judges, MADDEN, Judge Circuit the Court Claims.

MADDEN, Judge. brought by This suit libel was Cepeda against Maga- Orlando Cowles Broadcasting, Inc., zines and Cepeda published an article about weekly magazine, Look, defendant’s May 21, 1963, issue. The author appellee, the article is described defendant, hereinafter called the as “a nationally recognized sportswriter authority.” was filed suit happened to him in Superior for what the of by plaintiff Court in the the Francisco, half of California, the season.” second of San the State removed, of the at instance the and was Cepeda’s play was that in the fact diversity ground of defendant, of on the of his second half that season was below citizenship, District United States to the of standard the first half. connection of Cali- District Court for the Northern photograph a of with article the was fornia, That court Division. being Southern by umpire from banned the granted a motion for the defendant’s game a had a violent because he made apparently summary judgment the on gesture being of at dissatisfaction called language ground in the used that out at first base. per not libelous was article defendant’s of Section 45 the Civil Code of Califor- plain- se, that the court stated since the nia libel as defines stipulated would that he tiff had unprivileged publication “a false and allege special complaint amend his writing, effigy by printing, picture, damages. representation or other fixed to the been, during eye, exposes any person sea- had to ha- which son, tred, contempt, ridicule, of Francisco obloquy, a the San member or had won the team which Giants baseball him to or which be shunned causes year League pennant avoided, tendency in that National which has injure occupation.” lost the World Series had him in his seven-game se- in a New Yankees York player To of a well-known write baseball and best ries. one of the ablest He was who, season, of a would be course players Francisco known on San of hun- under the interested observation of team. was member He players of of dreds fellow hundreds again in at Francisco team paying thousands of and of customers season, time, early in the management establishments of all pub- when article here involved big leagues, teams the two that by lished the defendant. player spite great ability as a player “doghouse has a with the status” that article said management hierarchy pen- own it; tag on “it is name had a sale that nant-winning regards team, which astonishing power hitter that every- man,” as “not a team who blames winner, pennant and slick fielder things go wrong, one but himself when expendable”; that should considered “temperamental, uncooperative who is had “for been disfavor sometime underproductive” as a member Manager Stoneham, with Horace owner team, who has been characterized takers”; Alvin and the club’s cue Dark being least one of his team as executive against among him were the counts jealousy so consumed one (3) “(2) is not team man. He ability player teammates that his as a things wrong everybody go he blames adversely for half of a base- affected (4) He not rebound Orlando. does season, would, ball for those who read opposition”; take it out on writing, produce tend to believed “doghouse with the Giants’ has status” the effects the Civil Code. defined “temperamen hierarchy deem him feelings produce would These statements tal, underproductive”; uncooperative and who, contempt be- and ridicule said, executive one Giant temperament, cause these faults regard to their Giants’ visit great promise fulfill of his failed play playing former York field New physical They would natural abilities. Mets the thunderous the New York injure occupation Cepeda in tend given reception Cepeda’s teammate there they player of a notable baseball Mays: put managements of the other would big leagues get on no- teams didn’t over that nineteen “Orlando they acquired Cepeda pave quite helped tice a while. great source, only of his reader asset since writ- ability player er of the article could not also the trouble- have known by except learning liability them, directly disrupting them of his tem- indirectly, perament. Naturally, or not, then, dis- from that would source. We accordingly. have a situation in count which the his value relatively unsophisticated interested but 45a, California, § The Civil Code among Magazine’s baseball buffs Look says part: in being enlight- millions of readers were defamatory of which is “A libel recognized by nationally ened author- plaintiff necessity of ex- without the ity’s analysis opinion Cep- of l’affaire planatory matter, as an such induce- report, If eda. the article was true ment, or innuendo other extrinsic got only eavesdropper reader still an what fact, said to is a libel on its face. with an acute ear and an mem- accurate *» -* -* ory might by listening have learned at the urges The defendant the district keyhole of the Giants’ front office. There right holding court was that the de fitting are obvious about difficulties not fendant’s article was on its libelous writing philosophy upon kind of into the face. In the case of MacLeodv. Tribune privilege of fair comment is Publishing Co., 536, 548, Inc., 52 Cal.2d based. 36, Supreme P.2d Court Cali judicial legis fornia recounted plaintiff says that the Giants’ history leading to lative the enactment officialsdid not entertain the unfavorable Applying of case, 45a to our instant opinions 45a. § § which the at defendant’s writer paraphrasing language may tributed to them. not Since one Supreme Court of California escape liability by for defamation show ing case Maidman Inc., Jewish Publications v. merely repeating that was defam 643, 649, Cal.Rptr. 617, 54 Cal.2d atory language by person,1 used another 355 P.2d we would 87 A.L.R.2d 439 may escape by falsely fortiori say, question “The article could attributing to others the ideas to which any injury than to gives effect other cause expression. The attribution reputation person Cepeda’s others well make the defamation position.” was, unprivi if false and If, example, sports more serious. leged, se, face, per on its i. libelous e. Maggio quoted having writer Joe Di allegation necessity any there no was said that in the batter’s box was proof damages special resulting or helpless clown, opinion that attributed from it. carry weight more and be more damaging opinion than a similar of the urges The defendant also that sportswriter himself. Attribution of the privileged. significant article was A fea opinion Cepeda’s temperament was writing that, ture of the defendant’s championship baseball, unsuited though by author is said defend management, posi Giants’ the ones in a nationally recognized sports ant to “abe tempera tion ment, know most about his parts authority,” writer and baseball weight similarly, would, add to the question the article of which the opinion. of the plaintiff complains practically contain nothing authority’s opinion of this or heavily relies The defendant gives criticism. What it report is a reader upon provision the California relat code says, Cepeda’s what, the writer qualified privilege. (3) Section employers, management of the San says: of the Civil Code thinking say Francisco ing were privileged publication “A or broad- thoughts him. about Some cast one made— source, expressly attributed *(cid:127)»**** of them would be the rest attributed Harper James, Torts, 5.18, p. 402; Torts, I Restatement, § Law of §§ Vol. 5S1. communication, a communication starter was be without course “In quali persons person malice, tween interested to a there- interested though false, interested, fiedly privileged, in, (1) even also The court cited the absence of malice. (2) stands such re- one who Snively. Gilloon, 176 In Larrick Cal. person lation to the interested App.2d 408, 417, Cal.Rptr. ground sup- a case afford a reasonable involving public about offi posing statements communi- the motive ** Snively cers, recognized court innocent, *. cation Snively. doctrine, though it did cite by qualified privilege de the The invoked Publishing Co., In MacLeod Tribune v. privilege fair the of comment fendant is 536, 552, 36, 52 P.2d a case Cal.2d 343 generally is a rec and criticism. This newspaper upon of a attack a candidate is, however, ognized privilege. a There Supreme public office, of the Court diversity opinion in of the various state 47(3) California Civil Code § held privilege covers courts to this as whether Snively did not and the doctrine extend only con not fair comment or criticism privilege pub qualified a to a statement facts, cerning proved admitted or falsity knowledge of or lished with its of to which facts also misstatements in its truth. an honest without belief Profes or related. comment criticism p. Prosser, Torts, 2d ed. The court cited Torts, ed., Prosser, 2d text on sor Torts, Restatement, 628, 601. and § 621, says p. of the three-fourths qualified privilege on states hold In the of Morris v. National Fed case public not of interest does extend account 162, Blind, Cal.App.2d of eration 192 2 any But of fact. to false assertion 165, Cal.Rptr. 336, 13 the California Snively Pub Record case of v. cites the District, Appeal, District Court of First 1, lishing Co., 565, 198 P. as Cal. 47(3) of held section of the Civil Code Snively taking contrary The view. give privi qualified California not a did publication local in a case involved a lege publication, national writings newspaper of cartoon with magazine general circulation, of of a imputed dishon criminal inserted which plaintiff of as a rack characterization police. esty chief of the local misrepresentations who eteer made of news interest court stressed the prod public concerning of sale paper of conduct in the and readers by ucts manufactured blind and handi necessity officials, of free local and capped persons. that the The court said speaking publishing matters on those group publication limited for defamation. of actions without fear warranted the disclosure whose interest Devlin, of v. 203 Cal. In the Maher case to them. alleged 270, 812, a P. libel regarded mismanagement public If article charge defendant's of we of quali- genuine Snively presenting problem held, of as funds. court as granted as privilege privilege, held, qualified fied we would be uncertain that the of California doctrine (3) of of Civil whether subdivision 47§ regarding of in writ- untrue facts non-malicious misstatement Code extended to speaking for of- as or about candidates of facts criticism statements well persons opinion. fice or office holders between In the case Freeman mutually 687, Mills, 161, Cal.App.2d interested 217 P.2d the relation parties, Mills, Appeal the race Court District, Califor as Freeman v. the District nia, publi case, privileged, would that a track held starter Second applied by its courts actors cation in letters between members be athletes, distinguished investigation relating bureau race course artists widely plaintiff of the as a race to so distributed to the conduct would extend Harper James, pp. the Law 15 Alaska 303 Acc. Airways problem. That North v. Ta of the Torts. Golden there is mention Co., Publishing F.2d law of nana CA 218 case did involve the California. thought finding much I trouble publication of the defendant’s as that it. magazine. prominent member A enough long to believe- I team, Cepeda of the have lived distinguished like principal problem wide, which almost has a Francisco one for was not performances created audience, article for his national for owner Stoneham but was one have an audience and that wide publication manager After Dark. criticisms comments interest great many players recognized had a nationally sportswriter must have of a quite authority envious team their about and baseball publicity might of the Orlando public performance. interest A Mag- Look allowing had obtained such a writer served azine. only great and criti- freedom comment leeway factual in his cism but I law of not believe libel However, as indi- we have statements. gen- obligates police California us to opinion, defend- cated earlier fantasy sportswriters’ eral run give purport to his ant’s did not writer “horsefeathers,” subject of which the analysis readers the benefit part. I do not think the trial article is per- on comment either obligated probe court to is what Horace temperament. or his baseball formance thinking Stoneham and Alvin Dark are merely passing on to readers He was or to out is or is not find whether purported from to have learned what he doghouse. perhaps I do think pub- persons. how a other We see League possible dowe Little libel have policy lic fair comment favor single here statement which I have- generate privilege relevant could quoted above. type of in this unusual situation. Normally, we should comment on damage juncture, was in district court error ren- The at do think this but I summary judgment dering thing may for the possibly de- have fendant, judgment judge single and its is reversed. led trial to overlook the go wrong, things statement of: “When everybody Orlando,” is he blames but CHAMBERS, Judge, concur- Circuit damages; wholly prayer out-of-reason for ring dissenting: million dollars. the amount one In view, summary judgment my that, my view, good argument there is go should should be and the case reversed juris- possible damage $10,000, no our only following single jury on the diversity suits, minimum in dictional things wrong, go sentence: “When case, could be sustained everybody Cepeda] blames [Orlando therefore, should be sent back to the state of fact Orlando.” That is a statement courts. being Cepeda of a trouble accuses APPENDIX on his It is not a comment art. maker. May 21, (Por- Look’s article publisher point, On I believe the italicized.) tions libel asserted be are naturally proof, put should to his into should come evi- the whole article CEPEDA ORLANDO in which it to show the context dence slug out of Can was written. doghouse ? indicated, I dis- than as above Other By Tim Cohcme my point, that I sent. To make I feel Sports Editor Look appendix forth in an the entire must set ORLANDO CEPEDA. name The seems portions (less pictures) with the article cigar a Don in need it or a front of complains of which he italicized. Instead, band around it. it wears the sale tag: baseman, whole the “First-class seems me ap- piffle. top-notch Francisco tradable a lot Counsel article pitcher piece.” pellee it as a “think and other characterizes considerations.” trading midnight, permissible, . Until the Giants talked with deadline — League League 15—a National team American June teams about Orlando. by giving it decide can better itself dearly “We would have loved Cepeda. they The all want Giants him,” says executive the Ameri- possibility Nevertheless, it is is scant. League. is, can “Trouble astonishing power hitter give we would have had to them most winner, pennant on a and slick fielder of our ball club.” expendable. And should be considered reports “Cepeda,” another, “was avail- expendable has been since the end any League willing able to American club last season. give up big pitcher able to big fellow, they things, say minor-league call a few whom “Chico" other Baby Bull,” player Nobody $100,000. and “The time has valued felt give up pitcher been with owner Horace could afford to disfavor Stoneham, Manager weakening Dark Alvin and the without themselves.” against cue club’s takers. counts interleague deadline, After him: League clubs, Giants turned National 1) produce He doesn’t the crucial hit but the same roadblocks barred action. 2) enough. He is not team man. prospects making often So the a suitable S) things go wrong, he blames good. deal for are not In base- It) everybody He Orlando. does ball, however, change rapidly. situations opposition. rebound and take it out on the The falloff of a star or the sudden rise 5) hardy every year. He ais holdout youngster overnight of a can almost trading approach. transform a team’s I- hot loud bat out the A can drown slug Although discord, Cepeda may involving Cepeda strains trade talks grace. unpublicized, his back to Or the active were his soured situation might impress principally emphasized with bat Stoneham Giants was when as boost to sent him his contract. In a Orlando’s market value. his salary Cepeda’s doghouse $46,500, $16,- For traces less a status estimated interpretation bat- 500 increase over when he knocked unfavorable per- runs, ting 142 than in hit 46 statistics to his overall home runs and aver- aged formance, rest .311. The Giants went on win which Stoneham strong tempera- pennant hierarchy the 1962 a the Giants’ deem make showing. mental, uncooperative underproduc- World con- Series Under such ditions, customary. for all But raises are tive. ' Cepeda cut, the club asked a re- take owners, Horace Unlike most Stoneham portedly deep, him then offered the same substantially knowledgeable baseball is a salary in 1962. as Orlando balked. in His decisive voice man. has been the yielded high re- trades that have Giant deal, Finally, to make a unable dealing man- with His record turns. off Giants took a somewhat themselves players agers, employees be- other by granting Cepeda a to- awkward hook patience speaks loyalty a uncommon having $1,000. Orlando, ken raise magnates. among But when a predicted point pride, won a finally combination reasons turns good a as in he 1961, season against man, a can un- Stoneham be as hand- would have to do Stoneham Coogan’s shakable as old somely by Bluff. him. Manager players Evidence disenchant- Alvin Dark rates of front-office Cepeda piling up by plus-and-minus system. play- ment with ever a has been “Our anytime they plus since the Giants’ near miss last little Octo- ers game. Anytime seven-game help ber’s World with win a Series extra sign player fails to drive New York Yankees. November From misses interleague through than two runner from third with less December when charged intraleague out, key spot, with a were in a he’s trades without waivers good given be- Single Giants well pluses another team. The are minus.” explains this, perhaps plays, their sacrifices, squeeze homers, lieve effort — early good fielding plays the American key hits, to deal him into effort —in League. pluses going. are awarded Extra helps late-inning performance Indispensable understanding to an game. Cepeda or win controversy tie Mays, is Willie When the Giants from moved New York Shortly Cepeda signed, Dark before Mays San Francisco in was a system, Willie that, revealed long-established superstar; Cepeda, a fielder, and Mays, center the brilliant resplendant possibilities, rookie Jimmy Davenport, rated third baseman Mays reputation, untried. had made his Despite a in 1961 and one-two however, York, in New where writ- homers, runs-bat- 1962 record of compare ers so bold as to him an was, average, Cepeda .306 ted-in all-around center with Di- fielder Joe “terribly words, Pressed Dark’s minus.” Maggio, product. a San Francisco So this, answering said, Dark “I’m be- Mays hand, fans a cool extended looked you asked, cause had 40 more around for a 1No. hero uncontaminated record,” pluses. minuses than A terrible Polo Grounds and installed added, “especially half of the last Cepeda. heralded the season.” strengthened position talking don’t know what Dark is “I Mays, meanwhile, a fast start. felt business,” plus about and minus strange city, tepid in the new sensed his Cepeda. half said “What about first reception by personal and was harried My speaks the season? record that, problems. hit Even .347 when itself.” year (Candlestick Seals Stadium organiza- opinion Orlando’s is not the ready 1960), Park was until had to a tear- tion’s. The make Giants 1961, strangeness was not himself. Dodgers in the stretch run to tie the problems personal him, behind again regular They had to do it season. Mays. began play old His like the playoff, The out of to the two three. win magnificent contributions, especially in Cepeda hadn’t Giants that failed feel if pennant, crises, to 1962 San the the job often, big so their to make hit big leagues, final- first Francisco’s in the They also easier. would been far acceptance. ly full, him won warm to bat Orlando’s that feel failure Meanwhile, five-year perform- except game, bang, them cost in the sixth flop. was far from a Totals cover- ance the World Series. through ’62 a definite reveal championship shortstop Dark, respectable as in all second hits, 943-922; batting departments: Giants and New York Boston Braves 50’s, 173-163; triples, 36-16; doubles, a com- was home 40’s teams competitor. 181-157; selfless, runs, 612-471; pletely runs, runs- dedicated By (runs produced 567-553; a fine expects batted-in, runs he dedication. And runs), oblique, statement, runs-batted-in, plus minus home direct here slug- during bases, 1,731-1,588; there, 998-867; total he intimated both the .5S4-.532; batting help Cepeda ging percentage, did and 1962 seasons bases, .318-309; average, 119-75. as he have. stolen as much should the team though Cepeda Rigney, figures suggest predecessor, Bill Dark’s These After be, Angeles Angels Mays he remains never no took over Los strong factor. exceptionally able offensive never been stated that he an he Baby player out of “The a team make probably no, Cepeda did Statistics Bull.” really Mays, he, and not realize big consequently man on the Giants —until was the atmosphere that has New old made its visit developed ever team suggests that Orlando first if Grounds, home, meet York the Polo potential, be will it does for fulfill tenants, Casey Stengel’s new box, Like Mets. He stands well season. back Cepeda away all plate, was Hornsby, received from the like placid warmly, but tired, his welcome was com- strides into ball. he is pared Mays. thunder reserved disarranged, to the his form becomes and he for Says executive, up disproportionate one Giant “Orlando didn’t ends with a number quite helped pop-ups a while. It strikeouts, especially over when pave happened overpower to him pitch. what tries outside in the second the season.” half of request Cepeda At the Giants’ did concededly poses play did While in Puerto Rico last winter. He problem, personality gymnasium reported Giants a baseball work and problems, personality training pounds spring full over several at seven points playing weight. in Orlando’s de- can be itemized his normal The Giants fense. believe he be more effective especially he can melt Ever since Pedro Zorrilla discovered hips pounds and butt. Whatever off his boy Rico, Santurce, on the Puerto weight, from he should benefit early team in the 50’s and recommended rest. winter’s Giants, Cepeda has bur- been ^him crushing buildup. dened an all but imperative mature is not Francisco, After his first season in player. sufficiently approximate team comparisons evoked over-enthusiastic primarily the virtuoso He could remain Jimmy Rogers Foxx, Hornsby, productive Josh long still ball and of as the Giants (king Negro Gibson hitters and catch- think he should be. When organized ers the era before up, Tom came his counselor he first admitted player) the colored own scout This Giant veteran Sheehan. father, Pedro during manager rivaled Gib- (and troubleshooter son as a hitter. season) part is known the Car- White Father “The Great fielder, As a Orlando is a first baseman many players ribbean,” strictly. glove well, He handles the es- advice in that area. Sheehan’s discovered pecially runner, on the throw into the today as it is as sound to Orlando ranges recklessly for foul flies and has a keep you given: level when “If good runner, arm. As a base he is swift you game, on the and concentrate head size, for his From unstable. player.” great will be through 1961, played he was often outfield, very following appear average, where he was “cutlines” Note: games base, Cepeda: even a few at third pictures opposite where happy he was a sideshow. He was not joined 1. the Giants juggling, go along. about the but had to 1958, he finest was hailed engineered The shifts room make then, prospect in baseball. Since McCovey, at first base for ordinary five-year record in 1962 more or less out- settled impressive. standards has been McCovey’s field. sometimes authoritative believe, how- Some baseball men give bat would Giants some first-base big ever, that first baseman protection, Cepeda. traded potential and has not reached that he will with the Giants. never Cepeda’s biggest handicap has been eight too much baseball. For about thought 2. he made years, played calendar, in around the safely. When he heard that base Rico, Puerto where he States thought otherwise, umpire young a national hero. Orlando is is grabbed batting wheeled, hel- ox-strong, but the schedule wore ground. met, and slammed it to the down. this, out For was thumbed being and, left, game, led Physical to his contributed weariness away. batting of last half falloff the second Heavy 3. back and shoulder muscles extraordinary account power. slugging inman talking Orlando, glasses, dark secretary and land- veteran Giants, Eddie Bran- mark of the

nick. ENGINE AND MACHINE

ALBINA Oregon corporation, WORKS, an Company, a Fund Insurance Fireman’s corporation, Appellants, California Commissioner, O’LEARY, Deputy

J. J. Compensation, Employees’ Bureau of Labor, Department and Hilda Appellees. O’Brien,

No. 18545. Appeals Court of

United States Ninth Circuit.

Feb. Heath, Gray, & Frederickson

Lloyd Weisensee, Portland, Or., W. appellants. Wilsoij, Philip Pozzi, A. & Levin Levin, Or., appellee Portland, O’Brien. Sidney Atty., Lezak, William U. S. I. Portland, Atty., Borgeson,

B. Asst. U. S. Or., Donahue, and Charles Solicitor Myers George Labor, M. H. Alfred Labor, Dept, Lilly, Attys. Wash- U. S. O’Leary, ington, appellee C., for J. J. D. Deputy Commissioner. Judge MADDEN, Before Claims, Court of HAMLIN Judges. BROWNING, Circuit

Case Details

Case Name: Orlando Cepeda v. Cowles Magazines and Broadcasting, Inc., a Corporation

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Apr 3, 1964

Citation: 328 F.2d 869

Docket Number: 18862_1

Court Abbreviation: 9th Cir.