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District Court of Appeal, Second District, Division 1, California.


Civ. 9522.

Decided: January 30, 1936

Kirkbride, Wilson & Brooks, of San Mateo, and J. W. Coleberd, of South San Francisco, for appellant. Paul J. Otto, of Los Angeles, for respondent James H. Mitchell. W. L. Pollard and S. L. Kurland, both of Los Angeles, for respondent Gordon Whitnall.

This is an action for libel.

The second amended complaint alleges that appellant was the secretary of the League of California Municipalities, an association composed of one hundred incorporated cities and towns in California; that he was discharged by the board of directors of the league without any valid reason; that James H. Mitchell, a member of said board of directors, voted in favor of the dismissal and discharge of appellant; that respondents maliciously composed, of and concerning appellant, false and defamatory matter in the form of a letter.

The letter which is set up in full in the complaint appears to be on the stationery of the League of California Municipalities, where also appears under the title of president, the name James H. Mitchell. It is dated San Francisco, and is addressed to “Honorable Mayors and City Officials of the Member Cities of the League of California Municipalities. Gentlemen:” and signed “James H. Mitchell, President, League of California Municipalities.” To quote the letter in full would serve no purpose. It will be sufficient to refer to the parts thereof about which appellant complains.

The letter begins as follows:


“On Saturday and Sunday, March 12, and 13, 1932, the Board of Directors of the League of California Municipalities met in a regularly called meeting at San Francisco. At the conclusion of this meeting the Board was compelled in view of the facts presented to ask for the resignation of Mr. William J. Locke as Secretary-Manager, although a complete statement cannot be given until the report of Messrs. Skinner & Hammond, Certified Public Accountants, is filed.

“Some of the facts which caused this action are as follows:

“During the absence of Mr. Locke from the office of the League in June, 1931, Mr. Levy, Treasurer of the Municipal Publishing Company, publishers of Pacific Municipalities, came into possession of a check for $190.00, payable to the League of California Municipalities, which was issued by the Neptune Meter Company in payment of rent for exhibit space at the Monterey Convention. Mr. Locke authorized Mr. Levy by wire to endorse this check in the name of the League. This check was endorsed by Mr. Levy and cashed and the proceeds thereof used for purposes other than for the League. The League has never been reimbursed for the amount of this check even though the League was clearly entitled to at least sixty percent of the amount of this sum of $190.00.

“Subsequently, several other checks payable to the League were endorsed and cashed. At least the major portion of the proceeds thereof was used for other than League purposes. It was stated they were used by Municipal Publishing Company.

“The testimony given to the Board showed without contradiction that of the various sums appropriated as aforesaid, there is at least now a net sum of $202.40 unpaid. The Board acquired knowledge with regard to those transactions from sources other than the office of the Secretary-Manager.”

The letter then refers to transactions between the league and the Municipal Publishing Company, of which appellant was, as the letter stated, acting as president, and that it was the unanimous opinion of the board that appellant's resignation should be requested. The next to the last paragraph of the letter is as follows:

“The Board sincerely regrets being compelled to take this drastic action, but feels it to be necessary from the standpoint of the best interest and welfare of the League, and sincerely believes no other course possible under the circumstances, even though these transactions may indicate nothing more than, as Mr. Locke has stated, merely a matter of bad judgment on his part.”

It is alleged that the letter was intended to mean that appellant has misappropriated the sum of $190 and other sums, and that the letter was intended to and did create in the minds of numerous readers thereof and persons who heard it read, that appellant had wrongfully appropriated the sum of $190. It is further alleged “that the said charges made and published in said letter were and are false, malicious and scandalous, and did and do expose plaintiff to hatred, contempt and ridicule.”

A demurrer to the second amended complaint was sustained with leave to amend. Later the order was modified to “without leave to amend” by nunc pro tunc order, and a judgment was entered dismissing the action. Evidently appellant elected to rely on the asserted sufficiency of the complaint, for the record does not show a request for leave to amend.

It is contended by appellant that the communication is not privileged and is libelous per se, and therefore that the complaint states a cause of action.

Respondent takes the position that the communication is privileged; that it is not libelous per se; and that therefore it is necessary for appellant to allege facts to show actual malice, in the absence of which under such a state of facts no action for libel would lie.

If appellant has any cause of action at all, it is by virtue of the provisions of sections 45 and 47 of the Civil Code. Elementary in the extreme, such a statement seems absurdly unnecessary but for the fact that it serves as a basis for the further declaration that the provisions of section 47 are as much the substantive law of libel as the provisions of section 45; and it is the law as declared in section 47 that is particularly applicable to this appeal. In other words, section 47 is not a mere rule of pleading; its provisions are as vital to the question as to whether or not a cause of action exists, as the provisions of section 45. These sections are as follows, so far as they apply to the case at bar:

“§ 45. Libel, what. Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”

Ҥ 47. Privileged publications. A privileged publication is one made * * *

“3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.”

Section 48, which will be referred to later, is as follows:

“§ 48. Malice not inferred. In the cases provided for in subdivisions three, four, and five, of the preceding section, malice is not inferred from the communication or publication.”

Malice is never the gist of the action under section 45, and a cause of action may arise, without the existence of malice, under that section. Taylor v. Lewis, 132 Cal.App. 381, 22 P.(2d) 569. But when the communication is shown to be privileged as defined in subdivisions 3, 4, and 5 of section 47, malice becomes the gist of the action and must exist as a fact, before the cause of action will lie. Hence, if it appears from the complaint that the communication is privileged, the question as to whether or not the complaint alleges malice is a proper subject for demurrer. Gosewisch v. Doran, 161 Cal. 511, 119 P. 656, Ann.Cas.1913D, 442; Riley v. Evening Post Publishing Company, 30 Cal. App. 294, 158 P. 225. It was therefore incumbent upon the plaintiff and appellant in the action at bar to allege malice, in the absence of which allegation, the complaint would not state a cause of action. It is well settled that the malice referred to in this section is malice in fact and not malice in law. Snively v. Record Publishing Company, 185 Cal. 565, at page 576, 198 P. 1.

It should be noted, incidentally, that the case at bar is not to be confused with that class of cases, of which there are many, that require the allegation of malice to support a claim for punitive damages, but wherein the element of privilege is not involved. Such cases are not affected by the provisions of section 48, and the communication itself, especially if it is libelous per se, is often held to be sufficient to constitute the required allegation of malice. Gilman v. McClatchy, 111 Cal. 606, 44 P. 241. Neither should it be confused with those cases which, on the face of the complaint, do not show privilege, for in those cases privilege must be alleged in the answer to become available as a defense. Maher v. Devlin, 203 Cal. 270, 263 P. 812. Nor with those cases wherein the decisions deal with and discuss the character and sufficiency of the evidence, but make no reference to doctrines affecting the adequacy of the pleadings.

The complaint in the case at bar cannot be held to adequately allege malice in fact. No facts are alleged as a basis for the claim that malice existed at the time the communication was published. The allegation that “said charges made and published in said letter * * * were and are false, malicious and scandalous,” is obviously a mere conclusion, hence the contention of respondent that the complaint does not state a cause of action must be upheld. Taylor v. Lewis, supra. Moreover, there is a plea for punitive damages, and in Davis v. Hearst, 160 Cal. 143, at page 166, 116 P. 530, 540, the court declares: “It follows necessarily from the foregoing that, since malice in fact goes to the state of mind and evil motive of the defendant, the burden of proving the existence of that state of mind is, in every case, upon the plaintiff who seeks an award of punitive damages based upon its existence.”

In the light of the foregoing, the question as to whether or not the article complained of is libelous per se, is unimportant. Even though it were libelous per se, although there appears to be no reason for such an assumption, it could not serve as a substitute for the necessity of alleging malice in fact, for under the provisions of section 48, “malice is not inferred from the communication or publication” when such communication is of the class described in subdivision 3 of section 47.

Appellant emphasizes the authority of Stevens v. Snow, 191 Cal. 58, 214 P. 968, 970. In that case the complaint on its face showed that the publication was unprivileged and the decision properly points out that under such circumstances the defense of privilege, to be availed of, must be pleaded in the answer. The same decision contains the rule respecting the pleadings, where it declares that: “The rule that privilege, to be available as a defense, must be pleaded, is subject to the single exception that when it appears upon the face of the complaint it may be availed of by demurrer.” The next sentence, however, might cause some confusion were it not for the fact that it is obiter dictum. It is as follows: “But this exception is limited to cases of absolute privilege under subdivisions 1 and 2 of section 47, Civil Code, and manifestly this must be so, because of the fact that in cases of qualified privilege the burden is upon the defendant to prove the absence of malice.” It should be noted that the last quotation is unsupported by authority, and left suspended in the opinion, as it is, without qualification, it is likely to leave the impression that it is intended as a departure from the settled weight of authority.

In the Snow Case the communication is both libelous per se and unprivileged, and the defendant having failed to raise the issue in the answer was properly foreclosed in the proof. No reason is given for the assertion that, “this exception is limited to cases of absolute privilege,” except the statement that, “manifestly this must be so, because of the fact that in cases of qualified privilege the burden is upon the defendant to prove the absence of malice.” Unless dictum, it must be held to refer specifically to the Snow Case.

Both sections 45 and 47 are clear, definite, and unambiguous, and there is nothing in either section to indicate that any part thereof is either the rule or the exception. To hold otherwise would permit the mere tentative allegation of a communication as the basis of an action for libel, and impose upon the defendant the burden of perfecting the cause of action in the answer; a doctrine that could claim, as its only virtue, a tendence to speculate in litigation.

Newell on Slander and Libel, third edition, states the rule as follows: “In all cases of defamation the plea of the general issue puts the plaintiff upon proof of every material allegation of his declaration * * * 4. The malicious intent where malice in fact is material” (page 788), and further the same author at page 936 declares the rule to be, “It is for the court to decide whether the occasion is or is not privileged, and also whether such privilege is absolute or qualified. * * * If, however, the privilege was only qualified, the burden is on the plaintiff of proving actual malice.”

For the reasons given the complaint failed to state a cause of action and the demurrer was properly sustained.

Judgment affirmed.

DORAN, Justice.