COX v. LOS ANGELES HERALD EXAMINER

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Court of Appeal, Second District, Division 7, California.

Terrence COX, Plaintiff and Appellant, v. LOS ANGELES HERALD EXAMINER, Nancy Hill–Holtzman, Jeff Gottleib, Defendants and Respondents.

No. B047006.

Decided: October 10, 1991

Strange & Hoey and Brian R. Strange and Gerald R. Lampton, Los Angeles, for plaintiff and appellant. Donovan, Leisure, Newton & Irvine and Stephen G. Contopulos and Bradley H. Ellis, Los Angeles, for defendants and respondents.

This is an appeal by the plaintiff from a summary judgment in favor of defendants in a defamation action based on a newspaper article plaintiff alleges falsely accused him of arson.   Because we find the article was absolutely privileged as a “fair and a true” report of a “judicial proceeding” under Civil Code section 47, subdivision (d) 1 , we affirm the judgment for defendants.

FACTS AND PROCEEDINGS BELOW

On a March afternoon in 1985 a fire swept through the Odyssey, a teen-age night club in West Hollywood.   The fire occurred approximately three weeks after the Los Angeles Police Commission revoked the club's dance permit.   A few days after this fire, Gary E. Cooper, an arson investigator of the Los Angeles Fire Department, went to the club for a personal observation of the scene.   With the permission of Scott Harvey, one of the club's owners, Cooper inspected the damaged interior of the club and concluded the nature of the fire indicated arson.

After viewing the fire scene, Cooper prepared an affidavit for a search warrant.   The affidavit states, in relevant part:

“Approximately two months ago, (early February [1985] I received an anonymous phone call and the male caller wanted to make me aware that there was a possibility that the Police Commission would revoke the permit for the Odyssey and the business might burn.   This type of phone call is not unusual and I have received numerous calls since August of 1975 regarding the activities and businesses that have been owned by the principals believed involved in the ownership of the Odyssey.   I was also given these names by Terrence Cox and I have spoken to these principals in other investigations.   This is the third fire that has occurred in nightclubs owned by various principals that are believed to be owners of the Odyssey.   Additionally, in 1984, Terrance [sic ] Cox, who stated that he was one of the owners of the Odyssey was arrested and plead [sic ] guilty in Federal Court to carrying a firearm during commission of a felony and unlawful user [sic ] of narcotics in possession of a firearm, Title 18, U.S.Code Section 922 and 924.)”  (Emphasis in original.)

Cooper's affidavit goes on to say:

“It is my opinion that the fire that occurred at the Odyssey was of incendiary origin.   It is my desire to search, photograph, diagram, and scientifically test the premises of the Odyssey nightclub for evidence of flammable liquids, chemical compounds, incendiary devices and parts thereof;  items of furniture, floor and wall coverings to be tested for flame spread, business records, including but not limited to records of receipts and disbursements, purchase journals, such as accounts payable, accounts receivable, records and/or articles tending to establish the identity of the person(s) in control of the premises and phone records.”

The affidavit concludes:

“In view of the fact that the preliminary investigation of this fire indicates an act of arson, it is my opinion that the further investigation of the scene and the business records will be helpful to establish motive and are seizable pursuant to Penal Code Section 1524.”

The affidavit was presented to a magistrate on April 4, 1985, and a search warrant was issued the same day.   The warrant was executed the following day and a return to the warrant was filed on April 12.

On April 16, 1985, the Herald Examiner published a story about the fire at the Odyssey headlined:  “Odyssey Owners Implicated In Teenage Night Club Blaze.”   The first paragraph of the article states:  “In an affidavit made to obtain a search warrant, an arson investigator said last week that ‘the principals of the Odyssey teen nightclub have a history of arson fires at their properties.’ ”   The headline to the continued portion of the article stated:  “ ‘History of arson’ cited by owners of Odyssey nightclub.”

Cox, one of the owners of the Odyssey, filed a libel action against the Herald–Examiner and the reporters who wrote the article.   The complaint alleges the portions of the article quoted above are libelous because they charge plaintiff with setting fire to the Odyssey or causing a fire to be set at the Odyssey and at other properties.

After their demurrer was overruled, defendants answered and moved for summary judgment on the grounds there was no evidence of actual malice or, alternatively, the statements in the article were absolutely privileged under section 47, subdivision (c).   The trial court granted summary judgment on the ground the uncontradicted evidence established lack of malice.   The court did not reach the privilege issue.   Plaintiff appeals.

Although the trial court did not rule on the issue of privilege, the issue was raised and briefed below as well as on appeal.   Because we find the privilege for fair and true reports of judicial proceedings provides “a complete defense” (Estate of Fisher (1988) 198 Cal.App.3d 418, 423, 244 Cal.Rptr. 5), we affirm the judgment on that ground.  (See Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419–1420, 267 Cal.Rptr. 819.)

DISCUSSION

Civil Code section 47 provides in relevant part:

“A privileged publication or broadcast is one made:  ․ (d) by a fair and true report in a public journal of ․ a judicial ․ proceeding or ․ anything said in the course thereof.”

 Thus a statement is privileged if it is (1) a “fair and true report;”  (2) published in a “public journal;”  and (3) a report about a “judicial proceeding” or “anything said in the course” of a judicial proceeding.   If the elements of the privilege are established, the privilege is absolute and the defendant is entitled to summary judgment in a defamation action based on the publication.  (McClatchy Newspapers v. Superior Court (1987) 189 Cal.App.3d 961, 974, 234 Cal.Rptr. 702.)

It is undisputed the Herald Examiner was a “public journal” and Mr. Cooper's affidavit was “something said in the course” of obtaining a search warrant.   The issues to be resolved are whether the procedure for obtaining a search warrant is a “judicial proceeding” for purposes of section 47, subdivision (d) and, if so, whether the newspaper article in question is a fair and true report of that proceeding

I. AN AFFIDAVIT IN SUPPORT OF A SEARCH WARRANT IS PART OF A “JUDICIAL PROCEEDING” FOR PURPOSES OF CIVIL CODE SECTION 47, SUBDIVISION (d).

 Whether a news report based on an affidavit in support of a search warrant is privileged is a question of first impression in California.2  For the reasons set forth below, we hold an affidavit in support of a search warrant is part of a “judicial proceeding” for purposes of section 47, subdivision (d).

 As one court has noted, in determining the scope of the term “judicial proceeding” for purposes of section 47, the courts of this state apply a comparatively broad interpretation of the term.  (Hayward v. Watsonville Register–Pajaronian and Sun (1968) 265 Cal.App.2d 255, 260, 71 Cal.Rptr. 295.)   For example, the term is not limited to a pending criminal or civil action.   In Block v. Sacramento Clinical Labs. Inc. (1982) 131 Cal.App.3d 386, 394, 182 Cal.Rptr. 438, the court applied the “judicial proceeding” privilege under section 47, subdivision (b) to the allegedly false report by a private toxicologist to a district attorney investigating whether there was probable cause to bring criminal charges against plaintiff for the death of her infant daughter.3  The court explained it found the privilege applicable because, “Beam [the toxicologist] performed and communicated the calculations upon the request of the office of the district attorney in furtherance of its investigation whether there was probable cause to initiate criminal charges relating to the infant's death.  ‘[W]hen the communication has some relation to a proceeding that is actually contemplated in good faith and under serious consideration by ․ a possible party to the proceeding,’ the communication is privileged.  (Rest.2d Torts, supra, § 588, com. e, at p. 251;  see Izzi v. Rellas (1980) 104 Cal.App.3d 254 at p. 262 [163 Cal.Rptr. 689] [‘the working definition of “judicial proceedings”․ include[s] proceedings which have the real potential for becoming a court concern.’];  Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865 [100 Cal.Rptr. 656] [‘It is ․ well settled that the absolute privilege in both judicial and quasi-judicial proceedings extends to preliminary conversations and interviews between a prospective witness and an attorney if they are in some way related to or connected with a pending or contemplated action.  [Citations.]’] )   And, notwithstanding that the privilege is most often asserted in civil disputes, the privilege is applicable to ‘proposed litigation, either civil or criminal.’  (Rest.2d Torts, supra, § 588, com. b, at p. 250.)”  (Id., 131 Cal.App.3d at pp. 393–394, 182 Cal.Rptr. 438.)

A “judicial proceeding” is generally defined to include “any hearing before a tribunal which performs a judicial function․”  (Prosser & Keeton on Torts (5th ed. 1984) ch. 19, § 114, p. 818) and see Vargas v. Giacosa (1953) 121 Cal.App.2d 521, 528, 263 P.2d 840 defining “judicial proceeding” as “a proceeding which ․ involves ․ judicial powers.”

Patently, the issuance of a search warrant involves judicial powers.  “[A] warrant may not issue except on probable cause, supported by oath or affirmation․”  (Cal. Const., art. I, § 13.)  “If the magistrate is thereupon satisfied of the existence of the grounds of the application, or that there is probable cause to believe their existence, he must issue a search warrant, signed by him with his name of office, to a peace officer in his county, commanding him forthwith to search the person or place named, for the property or things specified, and to retain such property or things in his custody subject to order of the court as provided by Section 1536.”  (Pen.Code, § 1528, subd. (a).)  Furthermore, the magistrate's decision whether sufficient information has been presented by the investigating officer to justify issuance of a search warrant involves the exercise of judicial discretion.  (People v. Meza (1984) 162 Cal.App.3d 25, 37, 208 Cal.Rptr. 576;  People v. Caron (1981) 115 Cal.App.3d 236, 242, 171 Cal.Rptr. 203, accord:  Sibley v. Holyoke Transcript–Telegram, supra, 461 N.E.2d at p. 826 [holding newspaper report of affidavit in support of search warrant came within the state's judicial proceedings privilege.] )

The record in this case shows Cooper's affidavit for a search warrant was prepared and submitted to a magistrate on April 4, 1985.   The magistrate found probable cause for the requested search and issued the warrant the same day.   Cooper's affidavit in support of the search warrant was obviously prepared in contemplation that criminal charges would be filed for arson in the fire which destroyed the Odyssey.   We are satisfied, therefore, a newspaper report based on the contents of an affidavit for a search warrant, assuming the report is “fair and true,” comes within the privilege for reports on judicial proceedings established by section 47, subdivision (d).

Plaintiff is correct in stating the privilege under section 47, subdivisions (b) and (d) apply in different situations and serve different purposes.   The privilege under section 47 subdivision (b) applies to publications in a judicial proceeding while the privilege under subdivision (d) applies to reports of judicial proceedings.   The purpose of subdivision (b) is to encourage “ ‘utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’ ”   (Silberg v. Anderson (1990) 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365 [citations omitted].)  The purpose of subdivision (d) is to protect the press in reporting on the performance of the government.  (McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal.App.3d at p. 975, 234 Cal.Rptr. 702.)   Plaintiff is incorrect, however, in concluding from these differences the term “judicial proceeding” means something different under subdivision (d) than it does under subdivision (b).

The public policy underlying subdivision (d) was explored in McClatchy Newspapers, Inc. v. Superior Court, supra, in which the court stated:  “The privilege accorded reports of judicial and other official proceedings stems from the democratic nature of our government.   In our society, the power resides with the People;  public supervision of governmental administration through informed voting is the cornerstone of democracy.   Hence:  ‘The fair report privilege is required because of the public's need for information to fulfill its supervisory role over government.   Thus, reports of official proceedings are not privileged “merely to satisfy the curiosity of individuals,” but to tell them how their government is performing.   While the public may not have an overriding interest in knowing the details of every crime committed, its interest in overseeing the conduct of the prosecutor, the police, and the judiciary is strong indeed.  (Note, When Truth and Accuracy Diverge:  The Fair Report of a Dated Proceeding (1982) 34 Stan.L.Rev. 1041, 1049–1050, fns. omitted.)”  (189 Cal.App.3d at pp. 947–975, 234 Cal.Rptr. 702.)

The court went on to quote from Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 491–492, 95 S.Ct. 1029, 1044–1045, 43 L.Ed.2d 328:  “[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.   Great responsibility is accordingly placed on the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.   Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.   With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.”  (Id., 189 Cal.App.3d at p. 975, 234 Cal.Rptr. 702.)

In Cox, the court held the First Amendment protects a publisher from liability for invasion of privacy when the report of judicial proceedings is accurate and the facts reported are true.   The report in Cox was based on indictments which were public records.  (420 U.S. at pp. 472–473, 95 S.Ct. at pp. 1034–1035.)   The court's rationale, however, is equally applicable to affidavits in support of search warrants, which are also public records.4  The court reasoned, “By placing the information in the public domain on official court records, the State must be presumed to have concluded that the public interest was thereby being served.   Public records by their very nature are of interest to those concerned with the administration of government, and a public benefit is performed by the reporting of the true contents of the records by the media.   The freedom of the press to publish that information appears to us to be of critical importance to our type of government in which the citizenry is the final judge of the proper conduct of public business.”  (Id. at p. 495, 95 S.Ct. at p. 1046.)

As the foregoing authorities show, the rationale for the privilege afforded reports of judicial proceedings is entirely applicable to reports based on affidavits for search warrants.   The public has a right to know what its public officials are doing in response to a fire which destroyed a business open to the public, especially one frequented by large crowds of young people.   The public interest in future safety entitles the public to know arson is suspected in that fire and that other night clubs owned by the same individuals have previously burned under circumstances indicating arson.

We find no basis for concluding section 47 protects the affiant who provides the information for a search warrant but not the press which reports that information.

II. THE ARTICLE IS A FAIR AND TRUE REPORT OF THE AFFIDAVIT IN SUPPORT OF A SEARCH WARRANT.

 Before addressing the question whether the report in this case is “fair and true” we address plaintiff's contention this question cannot be determined on a motion for summary judgment but is a question of fact to be resolved at trial.   We cannot accept plaintiff's contention because the very purpose of a motion for summary judgment is to determine if there are material issues of fact to be resolved in a trial.   Where, as here, there is no dispute as to what occurred in the judicial proceeding or what was contained in the report, the question whether the report was “fair and true” is a question of law.   (Kilgore v. Younger (1982) 30 Cal.3d 770, 777, 180 Cal.Rptr. 657, 640 P.2d 793;  McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal.App.3d at p. 976, 234 Cal.Rptr. 702;  Hayward v. Watsonville Register–Pajaronian and Sun, supra, 265 Cal.App.2d 255, 262, 71 Cal.Rptr. 295.)

The cases cited by plaintiff do not support a different conclusion.   Handelsman v. San Francisco Chronicle (1970) 11 Cal.App.3d 381, 386, 90 Cal.Rptr. 188 affirmed a judgment for defendant based on a special jury verdict the report was “a substantially fair and true report of the lawsuit filed against plaintiff.”   The court held it was not error to submit the question of privilege to the jury but specifically acknowledged the line of cases resolving the question as one of law through summary judgment or demurrer.   In Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 418, 46 Cal.Rptr. 135, reversing a judgment for defendant on other grounds, the court implied in dictum the question whether the report was fair and true could be submitted to the jury on retrial.   The court noted, however, the trial court could have made this determination as a matter of law had the state of the record so permitted.   In Pierce v. San Jose Mercury News (1989) 214 Cal.App.3d 1626, 1634, 263 Cal.Rptr. 410, the appellate court reversed a summary judgment for defendants on other grounds.   Explaining why it could not affirm the judgment on the ground of privilege for a fair and true report, the court noted the trial court had denied summary judgment on this ground because it found the report untrue as to plaintiff.   The appellate court appears to have concluded this left the question one of fact for the jury.

 A “fair and true” report is one which captures the substance of the proceeding—its gist or sting.  (Kilgore v. Younger, supra, 30 Cal.3d at p. 777, 180 Cal.Rptr. 657, 640 P.2d 793;  Hayward v. Watsonville Register (etc.), supra, 265 Cal.App.2d at p. 262, 71 Cal.Rptr. 295.)   In assessing the fairness of the report, the question is whether the report fairly reflects the proceedings, not whether the report is fair to the plaintiff in the sense of giving his or her version of the facts.   (Rollenhagen v. City of Orange, (1981) 116 Cal.App.3d 414, 427, 172 Cal.Rptr. 49;  and see Crane v. Arizona Republic (C.D.Cal.1989) 729 F.Supp. 698, 706.)   Similarly, in assessing the truthfulness of the report, “[t]he reporter is not bound by the strait jacket of the [affiant's] exact words;  a degree of flexibility is tolerated in deciding what is a ‘fair report.’ ”   (McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal.App.3d at p. 976, 234 Cal.Rptr. 702.)   The defendant is not required “to justify every word ․ ‘If the substantial imputations be proved true, a slight inaccuracy in the details will not prevent a judgment for the defendant, if the inaccuracy does not change the complexion of the affair so as to affect the reader of the article differently than the actual truth would.’ ”  (Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224, 227–228, 40 P.2d 520.)   With these concepts in mind, we proceed to evaluate the fairness and truthfulness of the report in question.

 Plaintiff's objections to the Herald–Examiner article are to the statement “Odyssey owners implicated in teen-age night club fire” and to the first paragraph of the article which purportedly quotes the affidavit as stating, “the principals of the Odyssey teen night club have a history of arson fires at their properties.”

We find the claim the Odyssey owners were “implicated” in the fire fairly construes the affidavit.   The fact Cooper, the arson investigator, wanted authority to search for and seize the business records of the club and his opinion “the business records will be helpful to establish motive” clearly implicates the Odyssey's owners, including plaintiff, in the fire which destroyed the club.

While it is true the purported quote in the first paragraph of the article does not appear in the affidavit, this is not fatal to defendants' assertion of the privilege.   As our Supreme Court has noted, cases construing section 47, subdivision (d) “all permit a certain degree of flexibility/literacy license in defining ‘fair report.’ ”  (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 262, fn. 13, 208 Cal.Rptr. 137, 690 P.2d 610.)   The question is not whether the quote is accurate but whether it communicates the substance or gist of the affidavit.  (See Kurata v. Los Angeles News Publishing Co., supra, 4 Cal.App.2d at pp. 227–228, 40 P.2d 520 and cases discussed above at p. 426.)   In Crane v. Arizona Republic, supra, 729 F.Supp. at page 705, the court found the newspaper article in question was a fair and true report for purposes of section 47 even though some purported quotes did not appear in the legislative documents to which they were attributed.   The court recognized the reporter was “permitted to take some literary license in reporting the contents of the documents.   In light of this standard, the article captures the substance of [the] allegations ․ as reflected in the House Select Committee documents.”

We find the reference to “a history of arson” at properties owned by plaintiff fairly captures the substance or gist of the affidavit.   Cooper states he received “numerous calls” since 1975 “regarding the activities and businesses that have been owned by” the owners of the Odyssey;  he has spoken to these owners in other [arson] investigations;  and “[t]his is the third fire that has occurred in night clubs owned by” the owners of the Odyssey.  (Emphasis by Cooper.)   The clear import of Cooper's affidavit is that a search warrant is justified in part because of the arson-like nature of the previous fires at clubs owned by plaintiff.

On the basis of the undisputed evidence, we conclude as a matter of law the article was a fair and true report and defendants are entitled to summary judgment on the basis of the privilege afforded by section 47, subdivision (d).

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   All future references are to the Civil Code unless otherwise noted.

2.   Other jurisdictions considering this question unanimously have held such reports are privileged.  (Times–Dispatch Pub. Co., Inc. v. Zoll (Sp.Ct. of App.Va.1927) 148 Va. 850, 139 S.E. 505, 507;  Stone v. Hutchinson Daily News (1928) 125 Kan. 715, 266 P. 78, 79–80;  Kramer v. News Syndicate Co. (1940) 260 A.D. 17, 20 N.Y.S.2d 700, 702;  Sibley v. Holyoke Transcript–Telegram (1984) 391 Mass. 468, 461 N.E.2d 823, 825–826.)

3.   Section 47, subdivision (b), formerly section 47, subdivision (2) provides a privileged publication is one made “[I]n any ․ judicial proceeding․”

4.   The affidavit in support of a search warrant is a public document.  (Pen.Code, § 1534, subd. (a);  People v. Tockgo (1983) 145 Cal.App.3d 635, 641–642, 193 Cal.Rptr. 503.)   Therefore, we find no merit in plaintiff's claim the procedure for obtaining a warrant is not a “public” judicial proceeding.   We do not address the question whether section 47(d) applies to a non-public judicial proceeding.

JOHNSON, Associate Justice.

LILLIE, P.J., and FRED WOODS, J., concur.

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