Scott PATRICK et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Ricardo A. TORRES, Real Party In Interest.
A small legal newspaper was engaged in a running feud with the presiding judge of the Los Angeles Superior Court. Employees of the newspaper circulated a phony memo to the judges and employees of the court, purportedly authored by the judge, making fun of his attitude toward the paper. The memo declared the newspaper “contraband,” announced a chambers-by-chambers search for copies of the offending publication, and advised the judges and employees of the superior court to conduct their “amorous escapades” elsewhere whilst the search was being conducted.
The presiding judge was not amused and sued the newspaper and its employees on a host of legal theories, one of which was defamation. The trial court overruled the demurrer to the defamation cause of action, and the defendants now seek a writ of mandate commanding the trial court to dismiss it. We grant them the relief they seek. As explained, no reasonable person could fail to conclude that the memo in this case was a parody and not written by the judge.
II. FACTS AND LEGAL HISTORY
We attach the phony memo as an appendix to this opinion.
The memo bore the letterhead and seal of the superior court, and a facsimile of the initials stamp of Judge Ricardo A. Torres, who in July 1992 was the presiding judge of the Los Angeles Superior Court. The opening paragraph alluded to a characterization, evidently made in the pages of the Metropolitan News–Enterprise, of Torres as a “ ‘despotic twit,’ ” and from that leaped to the conclusion—by reference to the author's “august status”—that copies of the newspaper could not be “permitted” within the confines of the Los Angeles Superior Court.
The memo next warned the judges of the superior court that there would be off-hours searches for copies of the Metropolitan News–Enterprise and “other contraband” which would include inventories of the contents of the judges' chambers. The memo advised judges and court employees to conduct their “amorous escapades” at “off-site locations” so as to avoid embarrassing those conducting the search.
The memo next returned to the theme that the judges of the Los Angeles Superior Court were to avoid reading the Metropolitan News–Enterprise. It threatened them with reassignment—to be made by a call from the author on his “car phone”—to a distant court if they were caught reading the paper.
The final paragraph of the memo ended on a crescendo of megalomania, in which the author declared a “court emergency” and suspended the election of his successor. The final sentence dwelt on the heavy burden and “considerable personal sacrifice” imposed on the author by this sua sponte power grab.
According to a complaint filed by defendant Patrick and his employer, the Metropolitan News Company, on July 14, 1992, after distribution of the phony memo Judge Torres had a deputy sheriff compel Patrick and two co-workers to come to the judge's chambers where they were interrogated. Afterwards, the judge “forced” Patrick to appear before him in open court on contempt charges.
In October 1992 Patrick, the Metropolitan News Company, and Roger M. Grace, the firm's chief operating officer, filed a lawsuit against Judge Torres for false imprisonment and assorted torts supposedly arising out of Patrick's detention. Judge Torres then filed a cross-complaint against the three plaintiffs (hereinafter the “newspaper defendants”) for seven causes of action based on the distribution of the phony memo. The newspaper demurred to Judge Torres' cross-complaint, which was heard by a judge of the Orange County Superior Court who sustained the demurrers without leave to amend as to the two causes of action for intentional and negligent infliction of emotional distress, and with leave to amend as to causes of action for fraud and deceit, conspiracy, negligent misrepresentation, and false personation, but overruled the demurrer to the cause of action for libel.
The newspaper defendants then petitioned for writ relief as to the lone cause of action for libel. The Clerk of the Second District Court of Appeal sent a letter to the Supreme Court stating all the Los Angeles-based justices would recuse themselves. The Supreme Court assigned the petition to this division. When we declined to entertain it, the Supreme Court granted review and transferred the matter to us with directions to issue an alternative writ.1
A. Parody, Defamation and the First Amendment
From the Pickwick Papers of the 1830's to Colorado of the 1890's to Monty Python of the early 1970's, judges and the judiciary have been fair game for satirists.2 If it is true, as it is often said, that the basis of humor is some sort of exaggeration or departure from serious or solemn perspective, then the formality (and, no doubt on too many occasions, outright pomposity) of judges and legal proceedings plus the sheer seriousness and solemnity traditionally associated with court procedure provide rich ground for mockery and parody. That is why, along with stuffy corporate board meetings, courtroom proceedings have been a traditional staple of cartoons appearing in publications like Punch and the New Yorker. It is also why the paintings of Charles Bragg, caricaturing jurists with a vengeance, are so funny.
Parody as an art form may be traced at least as far back as Aristophanes' play, The Frogs, which spoofed the earlier plays of Aeschylus and Euripides. (Acuff–Rose Music, Inc. v. Campbell (6th Cir.1992) 972 F.2d 1429, 1441, fn. 4 (dis. opn. of Nelson, J.3 ).) Its essence is the close imitation to some original which at the same time successfully conveys a message that it is not the original. (See Nike, Inc. v. Just Did It Enterprises (7th Cir.1993) 6 F.3d 1225, 1228, quoting Cliffs Notes, Inc. v. Bantam Doubleday Dell Pub. Group (2d Cir.1989) 886 F.2d 490, 494.) As a form of expression it is just as deserving of First Amendment protection as a political pamphlet or a book about religion. (See Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 552, fn. 10, 216 Cal.Rptr. 252.)
Many parody cases, of course, arise in a commercial context where the plaintiff's real complaint is not so much defamation as theft. In such a context, courts are not wholly averse to allowing the plaintiff to prevail despite the evident hilarity of the defendant's efforts. As Judge Nelson noted in Acuff–Rose, supra, “it goes against the grain to let a competitor reap where he has not sown.” (972 F.2d at p. 1446, fn. 9 (dis.opn. of Nelson, J.).) Examples of litigated commercial parodies include T-shirts with a well-known “swoosh” design and the name “MIKE” emblazoned on them (Nike, Inc. v. Just Did It Enterprises, supra, 6 F.3d 1225); a robot dressed in a wig, gown, and jewelry resembling that of a well-known game show celebrity (White v. Samsung Electronics America, Inc. (9th Cir.1992) 971 F.2d 1395); a take-off by a rap group on the Roy Orbison hit of the 60's “Oh, Pretty Woman,” in which “Big Hairy” is substituted for “Pretty,” (Acuff–Rose, supra, 972 F.2d 1429); or blue jeans designed for larger women with a smiling pig and the word “Lardashe” on the label (Jordache Enterprises, Inc. v. Hogg Wyld, Ltd. (10th Cir.1987) 828 F.2d 1482). In such cases, the parodist stands to make money by doing something which directs the consumer's mind back to some well-known product or person.
But parody can have more elevated objects than commercial gain. The “classic role of comedy” as seen by philosophers such as Cicero was moral uplift (of all things). Its purpose was to “correct the irrational and immoral conduct of the foolish” by showing them how ridiculous were their ways. (Muir, The Oxford Book of Humorous Prose (1990) at xxvi. [Author is also editor.] ) 4 While comedy hardly needs justification in an age which accepts laughter as something good in its own right, something of this ancient wisdom animates the legal protection afforded comedy under the First Amendment. It is hard to imagine, for example, a court taking seriously the idea that a political cartoon suggesting that a particular politician was, as the modern saying goes, a sandwich short of a picnic, was not protected by the First Amendment. (Cf. Yorty v. Chandler (1970) 13 Cal.App.3d 467, 474, 91 Cal.Rptr. 709.) 5 Part of our nation's “robust” tradition of free speech is the right to criticize public figures by parodying their actions—a kind of “ideological speech” employing argument reducio ad absurdum.
Defamation, by contrast, is by its nature mutually exclusive of parody. By definition defamation requires a false statement of fact (Pring v. Penthouse Intern., Ltd. (10th Cir.1982) 695 F.2d 438, 440), while parody, to the degree that it is perceived as parody by its intended audience, conveys the message that it is not the original, and therefore cannot constitute a false statement of fact. Thus in Walko v. Kean College of New Jersey (N.J.Super.L.1988) 235 N.J.Super. 139, 561 A.2d 680, an ad in a special “spoof” edition of the student newspaper which suggested that certain well-known names on campus were available for “good phone sex” on the “Whoreline” was not defamatory as a matter of law because the fake ad was “simply not a statement of fact.” (Id. 561 A.2d at p. 684) Because all of the surrounding circumstances compelled the conclusion that the ad was a joke, even if (perhaps literally) a sophomoric one, the ad was not an assertion of fact, but a statement of opinion, protected by the First Amendment and not actionable defamation. (Ibid.)
As the defendants in the present case are no doubt learning to their chagrin, the riskiest form of parody is the “phony author” parody, which is based on attributing words to the very object of the satire. In contrast to musical parody, which is always obviously a separate opus from the original, the “phony author parody” relies for its force and effect on the idea of attribution of ideas and words to someone who never uttered them. The satiric effect emerges only as the reader concludes by the very outrageousness of the words that the whole thing is a put-on. The comic effect is achieved because the reader sees the words as the absurd extension of positions or ideas associated with the purported author.
In Lane v. Arkansas Valley Pub. Co. (Colo.App.1983) 675 P.2d 747, the author of a newspaper column quoted from a letter purportedly written by a county commissioner informing county employees of new militaristic rules and commenting on secret meetings signed “John Lane, Supreme Commander.” (Id. at p. 751.) The effect was no doubt hilarious for those who already thought the embattled commissioner (he was the subject of a recall campaign) to be a bit of a martinet. The effect is not quite so funny on those of us whose only acquaintance with the commissioner is through the pages of the Pacific Reporter Second, and who know nothing of his personality or public image. In any event, the court held the letter was not actionable libel. (Ibid.)
Probably the best known modern example of this style of parody is found in Hustler Magazine v. Falwell (1988) 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41. There, a phony interview with a prominent political and religious leader purported to have the leader saying that his first sexual experience was with his mother in an outhouse. By comparison with the scurrilous and vile parody in Hustler Magazine the phony memo in this case might have been written by Jonathan Swift.6
B. The Reasonable Person and This Phony Memo
Judge Torres' position necessarily rests on the idea that reasonable jurors could conclude that the phony memo in this case was not a parody. The idea, however, is untenable.
As the relevant cases show, the hypothetical reasonable person—the mythic Cheshire–Cat who darts about the pages of the tort law—is no dullard. He or she does not represent the lowest common denominator, but reasonable intelligence and learning. He or she can tell the difference between satire and sincerity.
In Baker v. Los Angeles Herald Examiner, supra, 42 Cal.3d 254, 228 Cal.Rptr. 206, 721 P.2d 87 our Supreme Court held that a reasonable person would be able to draw the correct conclusion from the text of a newspaper column skewering a television documentary about sex education. The theme of the review was that the documentary was rather lurid itself, essentially nothing more than an excuse to titillate the audience. The reviewer wrote that his “impression” was that the executive producer of the program told his writer/producer to cram as much “titillating innuendo” and “bare flesh as we can get away with” into it as possible. The court had no trouble declaring that the reasonable person would be able to figure out that the words in the review referred to what the writer imagined the producer said, not what the writer was reporting the producer actually said. (Id. at pp. 258–262, 228 Cal.Rptr. 206, 721 P.2d 87.)
Likewise, the reasonable person has some feel for the nuances of law and language. Where a ballot argument accused a city council person of being “hired” by a developer, and then noted that a government commission “subsequently ․ ruled” that the council person “had a conflict of interest” in the matter, our Supreme Court held that neither the reference to hiring nor the commission ruling could reasonably have been interpreted by the “ordinary voter” to mean that the developer had actually bribed the council person. (Okun v. Superior Court, supra, 29 Cal.3d at pp. 456–457, 175 Cal.Rptr. 157, 629 P.2d 1369.) Our high court reasoned that the word “hired” showed no more than that the developer and the council person had “formed a business relationship.” (Id. at p. 456, 175 Cal.Rptr. 157, 629 P.2d 1369.)
Additionally—and significantly for this case because it shows the reasonable person has some legal sophistication—the court also pointed out that the ruling by the Fair Political Practices Commission (FPPC) could mean, under the California Government Code, that the council person merely had been advised he had a conflict of interest regarding “matters affected by the conflict,” not that the council person had already improperly acted on those matters. (Ibid.) One of the FPPC's functions is, after all, to issue advisory opinions so that local officials can know they have a conflict of interest before they do anything wrong. (Ibid., citing Gov.Code, §§ 83114, 87100 et seq.) Yet there was nothing in the ballot argument quoted in the Okun opinion which would have reminded the reader of the FPPC's function of issuing advisory opinions. To be aware of that function one would already need to be familiar with certain provisions of the Government Code.
Nor is the reasonable person some totally humorless drudge who cannot perceive the presence of subtle invective. Where a political cartoon showed a politician being approached in his office by the proverbial “men in white coats,” the Court of Appeal in Yorty v. Chandler, supra, 13 Cal.App.3d 467, 91 Cal.Rptr. 709, held the average reader of the cartoon would not think the politician was “in fact” insane. (Id. at pp. 473–474, 91 Cal.Rptr. 709.) Yet one cannot look at the cartoon, which was reprinted in the opinion, without deriving the sense that the cartoonist did, indeed, consider the politician a tad loony from his own ideological or partisan viewpoint. (Id. at 470, 91 Cal.Rptr. 709.) 7 The cartoon was, however, unquestionably political comment, not clinical psychiatric diagnosis.
Baker, Okun and Yorty thus each demonstrate, contrary to the thrust of the dissenting opinion here, that whether a given communication reasonably qualifies as defamatory is not a question for the jury. Yet if we look to the dissent for guidance, only slapstick would qualify for First Amendment protection. More subtle forms of humor would be jury questions.8
The phony memo in the present case clearly paints its author as a snoop living up to his description as a “despotic twit” by employing authoritarian measures to stifle any criticism he encounters. At the same time (in the tradition of comic juxtaposition) the memo's author presides over activities more associated with a brothel than a courthouse. (The memo implies that the courthouse is regularly used for “amorous escapades.”) The author believes he has the power to search the chambers of his fellow judges for copies of any newspaper that criticizes him personally.
If anyone still wonders whether the memo is genuine after reading the first three paragraphs, all doubt as to its satirical nature is removed by the megalomaniac final paragraph. Here the author declares a state of emergency and suspends the election of his successor, topped off with a caesaresque lament about the burden of command. This ending leaves the reader with an impression reminiscent of a surrealistic comedy skit in which a staid figure of authority—in judge's robes or perhaps the formal regalia of bowler hat and striped trousers—makes statements that become progressively more nonsensical until, at last, the figure turns into a wide-eyed fanatic sputtering about the threat of a Martian invasion before declaring himself emperor of the universe. (Cf. Lane v. Arkansas Valley Pub. Co., supra, 675 P.2d 747 [“Supreme Commander”].)
While the phony memo before us is not quite so extreme as our hypothetical comedy skit, the sheer ludicrousness inherent in the “court emergency” paragraph places the memo easily within the realm of satiric parody. Such textual imagery is inconsistent with any other interpretation. It is unreasonable to believe that any judge appointed by any of California's governors in this century would be so stupid as to seriously author such a memo. If ordinary voters could be expected to draw the conclusion that a commission finding of conflict of interest did not necessarily implicate a developer in any wrongdoing in Okun, a fortiori no reasonable person would find the memo to be a “straight” statement of fact here. The average person is far more aware of the First Amendment, basic rights of privacy, and that judges do not go around suspending the elections of their successors than he or she is of relatively obscure provisions in the Government Code pertaining to advisory opinions issued by the FPPC.
While we conclude the naked language of the particular phony memo in the case before us is sufficiently outrageous to qualify it as a parody as a matter of law, nevertheless the fact that it employed a court seal and stationery and was not distributed between the covers of a newspaper or magazine merits some attention. There is no doubt, in this regard, that one is far more likely to expect a parody within the pages of the National Lampoon or a humor anthology than on a memo printed on court stationery from the presiding judge of the Los Angeles Superior Court. And this also appears to be the point where our dissenting colleague comes to a different conclusion about this case. If we discern his position correctly, the circulation of the phony memo directly to judges and other court employees is dispositive. It would have been one thing if the Metropolitan News–Enterprise had printed the memo as a spoof on its editorial page, but quite another to have circulated it directly.
Several concepts, however, must be kept from becoming blurred in our analysis. This writ proceeding concerns only the cause of action for defamation, not any civil or criminal liability which may—or may not—occur for impersonating a judge, or misusing the official seal or stationery of a court. (See Pen.Code, §§ 529 [impersonation of another in his or her official capacity]; 472 [forgery of court seal with intent to defraud]; 470 [garden-variety forgery]; and 146b [sending misleading request or demand for information which appears to be from a government entity].) These possibilities are not before us now, and we need not opine upon them. It is enough that we note their existence so that we as a court (and particularly because we are a court) can separate the intuitive reaction that no one should be allowed to misuse a court seal or stationery from the precise question of whether Judge Torres has a cause of action for defamation. If someone sent out a phony opinion purportedly from this court, complete with fake file stamp, in which we came to a bizarre or ludicrous result,9 regardless of whether the person may have violated any criminal law or committed contempt of court, we do not think the purported authors of the opinion should be able to sue him or her for defamation. As judges we are public figures, and part of our job, to paraphrase Harry Truman, is to stand the heat in the kitchen.
Nevertheless, the phony memo here was not published in a magazine or book, but distributed in person in a courthouse, which raises the question of the context in which a parody is distributed to its intended audience. Polygram Records, supra, 170 Cal.App.3d 543, 216 Cal.Rptr. 252, provides an example of the importance of context in another “humor” case. Polygram arose out of a comedy routine performed by Robin Williams based on the rhetorical question of why, if there are “red” wines and “white” wines, there are no “black” wines. (See id. at p. 546, 216 Cal.Rptr. 252.) The routine hypothesized a “black” wine produced by one “Rege.” A wine merchant by that name and doing business as “Rege Cellars” sued Williams for defamation. The Court of Appeal, dealing with the case after a successful demurrer, was clearly reluctant to adopt a bright line rule that comedy as a form of expression was “categorically” immune from defamation because of the First Amendment (see id. at p. 552, 216 Cal.Rptr. 252), in part because it was inclined to Samuel Johnson's wisdom about the difficulty of defining comedy. (See id. at p. 553, fn. 12, 216 Cal.Rptr. 252.) Nevertheless, the court quickly disposed of the case as a matter of a law by asking the “threshold” question of whether the communication could “reasonably be understood in a defamatory sense by those who received it.” (See id. at p. 554, 216 Cal.Rptr. 252.) Considering the “context” in which the communication was made, there was absolutely no doubt that the communication was not to be taken seriously; hence it was not defamatory as a matter of law. (Id. at pp. 555–557, 216 Cal.Rptr. 252.) (See also Lane v. Arkansas Valley Pub. Co., supra, 675 P.2d at p. 751 [“the context of the letter must be considered”]; Walko v. Kean College of New Jersey, supra, 561 A.2d at p. 684 [“In the context presented, the ‘announcement’ is simply not a statement of fact.”].)
Even if we assume, for sake of argument, that the naked language of the parody is not sufficient and the channel of distribution raises the possibility that the memo might be taken seriously, the context in which the memo appeared absolutely dispels any such notion. We need not look beyond the text of the memo and Judge Torres' own cross-complaint to fix that context. There is no dispute that at the time of the phony memo there was a running feud between Judge Torres and the newspaper defendants. The feud is unmistakable from the quoted reference to “despotic twit” in the first paragraph of the memo and is recognized explicitly in paragraph 13 of the cross-complaint, which charges the newspaper defendants with a “pattern of conduct” extending for “more than two years” seeking to “attack, discredit, embarrass and ridicule” Judge Torres.
The phony memo is alleged to be part of an ongoing public war between the presiding judge of a huge and busy trial court and a small legal newspaper critical of his administration. Given that context, plus the memo's internal references to gestapo-like searches, amorous escapades and megalomania, it is simply unreasonable to believe that anyone, and particularly the audience actually intended, could conclude that Judge Torres wrote this memo.
While Judge Torres points out that individuals in the intended audience were upset by the memo, and some considered it libelous, no one admits to having been taken in by the parody. It is one thing for a writing to make fun of a public figure by exaggerating some impression of him or her; it is quite another to convey the idea that the figure literally uttered certain words.
Let a peremptory writ of mandate issue directing the superior court to vacate its order overruling the demurrer to the fourth cause of action to Judge Torres' cross-complaint and enter a new and different order sustaining the demurrer without leave to amend. Petitioners are to recover their costs incurred in connection with these proceedings.
This petition for extraordinary relief presents a stark issue: Is the allegedly defamatory phony memorandum before us, purportedly issued by a judge, a First Amendment-protected parody as a matter of law? No. There is a literary lesson in the majority opinion, but it is not the one my colleagues teach. In 1947, Mickey Spillane's I, the Jury appeared; forty-seven years later the majority has produced the sequel, We, the Jury. Instead of reviewing the ruling on a demurrer to one count of a seven-count cross-complaint by applicable standards,1 e.g., the truth of the allegations must be accepted, the majority has examined and weighed the evidence—and announced its verdict.
A parody of a public figure is entitled to very high First Amendment protection. (See, e.g., Hustler Magazine v. Falwell (1988) 485 U.S. 46, 108 S.Ct. 876, 99 L.Ed.2d 41.) But the first question here—and the only one we should reach—is whether the phony memo is a parody as a matter of law. Ironically, cross-defendant petitioners, who concede that is the test, have also inadvertently admitted they cannot meet it.
Cross-defendants' demurrer recognized the burden they faced: “Torres cannot sustain a defamation claim, however, because the parody memorandum was precisely that—a parody—which no reasonable reader would have taken seriously.” The difficulty, however, is that the memorandum did not appear in a publication where one might expect to encounter a spoof. It was dressed as an official document and allegedly distributed to courthouse personnel and others. The cross-complaint alleges it was taken seriously by, or at least upset, court personnel.
Cross-defendants claim the memo's only intended audience, judges of the superior court, would not be taken in. Recall, however, that we review a ruling on a demurrer. The assertion that the memo reached, or was only intended to reach, such a limited group is inconsistent with the plain language of the cross-complaint. For example, that pleading avers, “Cross-complainant is informed and believes and thereon alleges that the aforementioned conduct of cross-defendants, and each of them, was done with the intent to induce the Superior Court, its Judges, Court personnel and all others to whom it was or might reasonably be delivered to act on it and/or to discredit, ridicule and insult TORRES, personally and professionally.” At another location the cross-complaint asserts, “The memorandum was seen and read by Judges and Court personnel and others in Los Angeles, California.”
It must be remembered that these allegations are presumed to be true on demurrer. (Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231, 18 Cal.Rptr.2d 308.) The majority's surprising foray into literary criticism—and far beyond—cannot change that.2 Even if we assumed every judge of the superior court who received the memorandum recognized it as a parody, the demurrer would not lie. There could be no such assumption concerning “[c]ourt personnel and others in Los Angeles, California.” Many of them have seen stranger things.
Los Angeles' legal history does not lack for examples of the occasional judge gone off the beam.3 (See, e.g., Cannon v. Commission on Judicial Qualifications (1975) 14 Cal.3d 678, 122 Cal.Rptr. 778, 537 P.2d 898; Geiler v. Commission on Judicial Qualifications (1973) 10 Cal.3d 270, 110 Cal.Rptr. 201, 515 P.2d 1; Grillo v. Smith (1983) 144 Cal.App.3d 868, 193 Cal.Rptr. 414.) Noel Cannon had a mechanical canary in chambers and a live dog with her on the bench, made a habit of locking up deputy public defenders, and once threatened to shoot her apartment manager. Leland Geiler prodded a deputy public defender with a dildo and profanely and sexually abused court employees, to name but a few instances of his unacceptable behavior. Joseph Grillo personally arrested a county employee, hauled him off to court, and adjudged him in contempt in a summary proceeding, all because the poor man followed his supervisor's direction to reject the judge's request for a plane ticket to Sacramento in order to lobby the Legislature.4
Torres' own alleged reactions to the distribution of the phony memo, as detailed in plaintiffs' complaint, may yet add to that lore. Torres, Cannon, and Grillo were all accused of abusing contempt powers under bizarre circumstances; and some might conclude Torres' conduct revealed a character capable of creating a retaliatory memorandum reminiscent of Cannon or Grillo in quixotic reprisals against offending windmills.5 No, the majority has its rose-colored glasses on when it thinks people familiar with the local legal scene could not be taken in by the phony memo; stranger, much stranger, things have come from Los Angeles judges.
Ironically, by injecting a new issue in their petition for review to the Supreme Court, cross-defendants confirmed the point of the previous paragraphs, that the memo would not necessarily be recognized as a parody by an ordinary, reasonably well-informed person. They faulted the transfer of the petition from the Second to Fourth District on these grounds: “Finally, review should be granted by this Court to correct the procedural error committed by the Clerk of the Second Appellate District in transferring this action from that District to the Fourth Appellate District [sic, clerks do not transfer cases] without taking proper steps to determine whether a panel of Justices in the Second Appellate District could hear this matter. As described above, the Clerk evidently believed that all the Justices in the Second Appellate District had all recused themselves; in fact, not all of the Justices had even been polled to determine if they were able to hear this matter. [¶] This procedural mistake is far from being a harmless error, because the geographical separation between the justices of the Second Appellate District and Fourth Appellate District could fundamentally alter the Court of Appeal's perception of Petitioners' parody memorandum. By way of analogy, if individuals in the Southern California legal community were shown a letter purporting to be from U.S. Chief Judge Manuel Real to President Clinton, urging the appointment of attorney Stephen Yagman to fill the open slot on the United States Supreme Court, they would undoubtedly recognize that letter to be a spoof. Individuals outside that community, however, who were unaware of the long-running series of confrontations between Judge Real and Mr. Yagman, might believe the letter to be genuine. [¶] Similarly, state court jurists in Los Angeles would realize that the parody memo that is the subject of this lawsuit was obviously not prepared by Judge Torres—it is, on its face, clearly a joke, except to individuals so far removed from the geographical region that they lacked any knowledge about Judge Torres' administration of the Los Angeles Superior Court and his dispute with Petitioners. The Fourth Appellate District, however, is simply too far removed from the Los Angeles legal scene for Justices there to be conversant with matters of common knowledge among judges and practitioners in the Los Angeles County Superior Court.” (Italics added.)
Following this remarkable argument, cross-defendants contended any remand to the Court of Appeal should be to the Second District. Instead, the Supreme Court returned the matter to us. It is impossible to tell if we are to decide this belated transfer issue under the Supreme Court's remand order as well. If so, I would reject it.6 There is no reason to permit the proverbial camel's nose into the tent of appellate case assignments and transfers.
A demurrer is not decided on special knowledge. To repeat, a complaint that states a valid cause of action is not demurrable; and with a few exceptions not pertinent here, all facts alleged must be accepted as true. (Cellular Plus, Inc. v. Superior Court, supra, 14 Cal.App.4th at p. 1231, 18 Cal.Rptr.2d 308.) It is of no moment that the judge has contrary information. Cross-defendants' petition to the Supreme Court conceded this demurrer cannot be sustained without knowledge of facts de hors the pleadings, and I agree. There has been no request for judicial notice of the background cross-defendants assert would demonstrate that the bogus memorandum is a parody; and even though the majority purports to deduce its nature from facts within the record, who can say (apart from the majority) others would react the same, particularly “[c]ourt personnel and others in Los Angeles, California.” Not all the “practitioners in the Los Angeles County Superior Court,” 7 let alone “[c]ourt personnel and others in Los Angeles, California,” could be expected to be cognizant of the feud between Grace and Torres or realize the former created the memo attributed to the latter. Lawyers and judges do not all regularly read legal periodicals, much less the Metropolitan News.
At my current level of enlightenment, that Torres will ever succeed on his cross-complaint I think doubtful, extremely doubtful. But the former presiding judge of a superior court is entitled to the benefit of the same rules applied to everyone else—and not to be summarily chased out of court by a Cheshire Cat, of all things (maj. slip opn., p. 9). He must be allowed to continue on the current record, unfettered by the innuendo wafting through the legal ozone of Los Angeles, innuendo his own attorneys think we have not absorbed—and have never properly asked us to absorb. In returning their verdict, my colleagues forget the general rule in defamation cases: “[T]he weighing of the evidence[ ] and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.” (Edwards v. Hall (1991) 234 Cal.App.3d 886, 900, 285 Cal.Rptr. 810, internal quotation marks omitted.)
Even so, it is possible cross-defendants could find a way to achieve a speedy resolution of this cause of action; but demurrer is not it.8 The petition should be denied.
1. In retrospect, our initial decision to deny the writ now seems improvident. The instant writ petition presents an important question concerning the interplay of the First Amendment, a civil suit for defamation, and criticism of a sitting judge. Assuming, for sake of argument, that the defendants have a First Amendment right to be spared further exposure to the liability represented by the defamation cause of action, it logically follows that there is no adequate remedy short of a writ. “The threat of a clearly nonmeritorious defamation action ultimately chills the free exercise of expression.” (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 268, 228 Cal.Rptr. 206, 721 P.2d 87.) “[S]peedy resolution of cases involving free speech is desirable.” (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572; see also Okun v. Superior Court (1981) 29 Cal.3d 442, 461, 175 Cal.Rptr. 157, 629 P.2d 1369 (conc.opn. of Mosk, J.) (“In the preservation of the free exercise of speech, writing and the political function, the early termination of this lawsuit is highly desirable.”).) That this cause of action directly implicates those specific rights that virtually all Americans hold sacred. Allowing the defamation action to go forward now only to be cleaned up later in an omnibus opinion following judgment after jury trial is simply too casual a way to treat freedom of speech.The Supreme Court's decision to remand to this court rather than the Second District is, of course, an issue with which we need not be concerned.
2. In Moore v. The People (1899) 26 Colo. 213, 57 P. 857, one of the issues in a murder case was whether the trial court erred in allowing an impaneled jury to attend a satirical theatrical performance burlesquing a court case where the defendant was brought to trial for stealing a jug of whiskey and the judge and court officers proceeded to drink up the evidence.
3. Judge Nelson's position may yet prevail. The United States Supreme Court has granted certiorari in Acuff–Rose on the question of whether the commercial parody at issue was a fair use under the federal copyright law. (––– U.S. ––––, 113 S.Ct. 1642, 123 L.Ed.2d 264.)
4. See also Polygram, supra, 170 Cal.App.3d at pages 552–553, 216 Cal.Rptr. 252 (noting that humor can serve “serious aims” and “is an important form of social commentary”).
5. In Yorty, Justice Fleming reminds us that during the election of 1860 a cartoon depicted supporters of Abraham Lincoln marching him off to a lunatic asylum. (13 Cal.App.3d at p. 474, 91 Cal.Rptr. 709.)
6. One of the most celebrated works of satire is Swift's A Modest Proposal, in which he purported to advocate the cooking and eating of Irish babies as a remedy for the problem of overpopulation.
7. Implying that your opponent is not quite functioning at an intellectually optimum level is nothing new in political debate. The Yorty court noted that Milton (no fan of King Charles I) described the monarchy of his time as “crasie.” (13 Cal.App.3d at p. 475, fn. 1, 91 Cal.Rptr. 709.)
8. Whether the federal Constitution requires a distinction in defamation law, as employed in Baker and Okun, between nonactionable statements of opinion and actionable statements of fact, is not before us. (See generally Milkovich v. Lorain Journal Company (1990) 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1; Edwards v. Hall (1991) 234 Cal.App.3d 886, 906, 285 Cal.Rptr. 810.) Needless to say both Baker and Okun are still good law on what is reasonable to believe about a given communication. And indeed, Edwards v. Hall, supra, 234 Cal.App.3d 886, 285 Cal.Rptr. 810, which reversed a summary judgment in favor of a defamation defendant, considered the “dispositive question” to be what a “reasonable trier of fact” could conclude about a certain statement. (Id. at p. 902, 285 Cal.Rptr. 810.)
9. And we certainly acknowledge that losing counsel, law professors, and, indeed, dissenting colleagues sometimes believe opinions from this and other appellate courts fall into that category.
1. The majority's concession that we erred in rejecting the original writ petition (maj. opn., p. 884, fn. 1) is especially mistaken in my view. The direction to issue an alternative writ should cue no such remorse; it means only that the Supreme Court has determined there is no adequate remedy in the ordinary course of law. (Bridgestone/Firestone, Inc. v. Superior Court (1992) 7 Cal.App.4th 1384, 1389, fn. 4, 9 Cal.Rptr.2d 709; Mahoney v. Superior Court (1983) 142 Cal.App.3d 937, 939, fn. 1, 191 Cal.Rptr. 425 [no effect on Court of Appeal's review on the merits]; Pedlow v. Superior Court (1980) 112 Cal.App.3d 368, 370, 169 Cal.Rptr. 326 [same].)How the Supreme Court made its “no adequate remedy” determination, though, is a mystery to me. Cross-defendants, not the judge, started this litigation; and while the chilling effect of defamation suits on media defendants' exercise of First Amendment rights is an important concern (see, e.g., Jennings v. Telegram–Tribune Co. (1985) 164 Cal.App.3d 119, 129, 210 Cal.Rptr. 485), this case does not involve publication of the Metropolitan News but a forged memorandum attributed to the presiding judge of a superior court. Neither the procedural nor legal posture of this matter merited our review.As the Second District observed in Krueger v. Superior Court (1979) 89 Cal.App.3d 934, 939, footnote 2, 152 Cal.Rptr. 870, “Our construction of the order would be much easier if we were afforded access to the ‘conference memorandum’ upon which the Supreme Court based its action. Presumably, some career member of the legal staff of a Supreme Court justice or some law student extern working for him [or her] knows something we do not.” (See also Ordway v. Superior Court (1988) 198 Cal.App.3d 98, 101, fn. 1, 243 Cal.Rptr. 536.) Justice Gilbert went to the trouble to pen a primer on writ practice, ostensibly for the benefit of the Bar; but it was probably also aimed at the Supreme Court legal staffers and externs. (Omaha Indemnity Co. v. Superior Court (1989) 209 Cal.App.3d 1266, 258 Cal.Rptr. 66.) If that was the idea, it was apparently lost on the latter audience.Even if the petition had merit, which it emphatically does not, this would have been an unwise expenditure of the Court of Appeal's time. We are deluged with writ petitions, particularly in civil cases. Many do have merit in some justices' eyes but, like the present petition, simply do not cry out for extraordinary relief in derogation of the rights of appellants who have waited years to conclude their trials and tribulations. Also, an error at an early stage affecting only a portion of the litigation may usually be more expeditiously corrected in the trial court while allowing the balance of the proceeding to remain on track. This petition, after all, attacks just one count of a seven-count complaint due to be amended anyway.* * * * * *
2. By the way, the majority opinion neglects to mention that the plaintiffs prevailed in most of the parody cases it cites.
3. There is no disrespect intended here to judges in our sister county. Orange County, as indeed the state as a whole, has seen its share of “colorful” jurists. To cite just a few examples that are common knowledge in these parts, various judges in a similar time frame personally seized an allegedly pornographic movie by mounting the stage during a Mitchell Brothers Theater presentation, ordered the flogging of a convicted criminal, enjoined the operation of the entire City of Irvine, on at least two occasions forbade the United States Post Office from election-eve deliveries of political mailers because they were allegedly inaccurate, enjoined the harming of an escaped hippopotamus (remember “Bubbles”?), and held the sheriff in contempt for following the orders of a federal district judge to release prisoners from overcrowded jails.
4. Impossible, according to the majority, but Cannon, Geiler, and Grillo were all appointed by California “governors in this century.” (See maj. opn., p. 888.)
5. According to the complaint, Torres had a deputy sheriff detain Scott Patrick, deliverer of the phony memo, for some 45 minutes while Torres interrogated him. “The false imprisonment,” the complaint goes on, “continued in Department One of the Central Courthouse where plaintiff's presence was compelled notwithstanding that no proceedings had actually been instituted against him. Although defendant TORRES purported to conduct an indirect contempt proceeding, no charging affidavit had been executed by defendant TORRES or anyone else.” The complaint adds, “Defendant TORRES denominated the mock proceeding an ‘order to show cause re contempt.’ Plaintiff PATRICK was caused extreme anxiety and mental suffering by virtue of the appearance of contempt charges being leveled against him by defendant TORRES at that hearing and one conducted by defendant TORRES later that day.” The complaint also alleges Torres violated Patrick's Fifth Amendment right to remain silent and specifically denied his constitutional right to counsel. Finally, the ten-count complaint includes a series of allegedly libelous statements by Torres to a reporter for a national magazine concerning Patrick and Grace.
6. With all due respect to petitioning cross-defendants, the City of Santa Ana is not the bucolic village of old; and the hinterlands of the County of Orange are no longer an emerald sea of citrus. The justices of this division live in a world of computers, electronic research, fax machines, and one of the heaviest caseloads in the state. There isn't a whole lot of time to sit on the porch and shuck with the neighbors anymore. We do find time to read the Metropolitan News (as well as a variety of other legal and general publications), though, and are as well-informed as anyone else in the state concerning matters of public interest in the Los Angeles legal community. For example, I am just as tired of the Real–Yagman show as everyone else. That said, however, and to repeat, we have no license to ignore the chestnut that allegations in a pleading must be accepted as true on demurrer; and that is the vice of my colleagues' opinion.
7. This phrase is from the petition for extraordinary relief to the Supreme Court quoted above. Thus, even cross-defendants imply distribution of the memorandum was not confined to judges, notwithstanding their protestations to the contrary at oral argument.
8. The majority seriously misrepresents my view when it states, “Yet if we look to the dissent for guidance, only slapstick would qualify for First Amendment protection.” (Maj. opn., p. 888.) The question before us is not whether parody may be entitled to First Amendment protection (sometimes yes, sometimes no, as the mixed bag of cases cited by the majority reveals), but whether the cross-complaint pleads a parody as a matter of law.
SILLS, Presiding Justice.
WALLIN, J., concurs.