BROWN v. KELLY BROADCASTING COMPANY

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Court of Appeal, Third District, California.

Shirley BROWN, Plaintiff and Appellant, v. KELLY BROADCASTING COMPANY et al., Defendants and Respondents.

No. C000433.

Decided: February 24, 1988

Brenton A. Bleier and Kitt N. Berman, Law Offices of Brenton A. Bleier, Sacramento, for plaintiff and appellant. L. Thomas Wagner and Sara A. Clark, Weintraub Genshlea Hardy Erich & Brown, Sacramento, for defendants and respondents.

Plaintiff Shirley Brown appeals from a summary judgment in favor of defendants, Kelly Broadcasting Company (Kelly Broadcasting) and its reporter, Brad Willis.   Plaintiff contends the trial court erroneously ruled (1) that defendant's allegedly defamatory broadcasts were qualifiedly privileged under Civil Code section 47, subdivision 3 (hereafter “section 47(3)”) and (2) that plaintiff did not raise a triable issue of material fact in regard to malice.   The trial court also ruled that plaintiff's motion for partial summary judgment is moot, a ruling which plaintiff does not challenge on appeal.   We uphold the trial court's finding of qualified privilege but conclude the plaintiff raised a triable issue of fact concerning malice.   Accordingly, we shall reverse the judgment.

Defendant Kelly Broadcasting operates KCRA, a television station broadcasting on channel 3 in Sacramento.   At the relevant times, defendant Brad Willis was employed as a reporter by Kelly Broadcasting and appeared on channel 3 newscasts.   In May 1984, Willis narrated two reports concerning plaintiff on “Call 3 for Action” (Call 3), the consumer segment of a channel 3 news program.   A large number of viewers in the Sacramento area saw the reports.

The reports concerned two women who received home improvement loans financed by the federal Department of Housing and Urban Development (HUD) and administered through The Sacramento Housing and Redevelopment Agency (SHRA).   One of the homeowners was Mahalia Lawson.   SHRA conducted a public bid on Lawson's behalf at which plaintiff, a contractor doing business as “The Energy Savers,” was the lowest qualified bidder.   Problems developed between plaintiff and Lawson in the performance of the home improvement contract and SHRA intervened in an attempt to resolve the difficulties.   Eventually, SHRA released plaintiff from responsibility after plaintiff returned $225 of the contract price.

During the first broadcast, Willis reported that Lawson was a victim of the failure of SHRA to correct mistakes made by plaintiff in remodeling Lawson's home.   According to the report, Lawson suffered “ ‘through a series of warped doors, and is still left with peeling paint, cracking plaster, blistered wallpaper, shoddy work, inside and out.   She is also left with 2 years of correspondence and frustration, trying to have the problems resolved.’ ”   Willis concluded the broadcast by stating that Call 3 tried to contact plaintiff but she had not returned the phone calls, that plaintiff had returned $225 to Lawson and was released from further responsibility by SHRA, and that a Call 3 volunteer had worked on Lawson's case for over two years “ ‘but it's been frustrating and both [the volunteer] and [Lawson] can only hope that this story will prevent you from having a similar problem.’ ”

In the second broadcast, Willis aired part of an interview in which another contractor who had also been criticized in the earlier story defended the work he had performed.   Willis then explained that Call 3 offered plaintiff the same opportunity to tell her side of the story but she refused.   Willis concluded the broadcast by saying, “ ‘The big problem here is there does not seem to be anyone striving for excellence․  The Housing Agency feels that the work meets minimum standards and is, therefore, OK.   The homeowners in this case are left very unhappy.   Don't let it happen to you․’ ”

After serving a written demand for retraction on Kelly Broadcasting plaintiff filed suit, alleging slander per se and malice.   Kelly Broadcasting and Willis responded with a motion for summary judgment, supported by the declarations of Willis, the Call 3 volunteer who investigated Lawson's complaint (Mary LaCombe), and the coordinator of Call 3.   In opposition, plaintiff submitted her own declaration in which she asserted facts suggesting that defendants did not attempt to contact her prior to the first broadcast, that many of the allegations of substandard work leveled against her in the broadcasts were false, and that an investigator for the Contractors' State License Board told Call 3 prior to the broadcasts the state would not pursue Lawson's complaint against plaintiff because of a “ ‘lack of basis.’ ”

The trial court granted defendants' motion for summary judgment on the grounds that the broadcasts were qualifiedly privileged under section 47(3) and that plaintiff failed to present competent evidence sufficient to raise a triable issue of material fact whether the privilege was overcome by malice.   Plaintiff appeals.

I

THE SECTION 47(3) QUALIFIED PRIVILEGE

 Relying on Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789, plaintiff contends the qualified privilege contained in section 47(3) is no longer applicable when a private individual sues a media defendant for defamation.   Modern California decisional law has uniformly recognized the application of the qualified privilege to defamation suits by private figures against media defendants where the defamatory publication is of public interest.   The issues then, are whether California decisional law remains applicable in the aftermath of Gertz and if so, whether the allegedly defamatory publication was made in the public interest.   We shall answer both questions in the affirmative.

Much of the confusion in this case is engendered by the distinction drawn between public and private figures in the analysis of the constitutional defamation privilege.   In 1964, the United States Supreme Court first articulated a qualified privilege, based on the First Amendment, protecting defamatory statements by the media against public officials, so long as the statements are made without “actual malice,” defined as knowledge of falsity or reckless disregard for the truth.  (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279–280, 84 S.Ct. 710, 725, 11 L.Ed.2d 686, 706.)   The Court extended the requirement of proof of actual malice to defamation suits by public figures in Curtis Publishing Co. v. Butts (1967) 388 U.S. 130, 162–164, 87 S.Ct. 1975, 1995–96, 18 L.Ed.2d 1094, 1115–1116.

In 1971, a plurality of the Court agreed that private figures must also prove actual malice when suing media defendants for defamation, if the defamatory publication concerns a matter of general or public interest.  (Rosenbloom v. Metromedia (1971) 403 U.S. 29, 43–44, 91 S.Ct. 1811, 1819–20, 29 L.Ed.2d 296, 311–312.)   However, just three years later, the Supreme Court expressly repudiated Rosenbloom, in Gertz v. Welch, supra, 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789.  Gertz holds that the states are free to define the standard of liability in defamation actions by private figures against the media;  the First Amendment requires only that they do not adopt a standard of liability without fault.  (Id., at p. 347, 94 S.Ct. at p. 3010, 41 L.Ed.2d at p. 809.)

Although the Court in Gertz repudiated the plurality opinion in Rosenbloom, it did not preclude states from adopting the “public interest” test set out in Rosenbloom.1  Rather, the Court deferred to the states the task of balancing the legitimate state interest in protecting private individuals' reputations against the constitutionally-derived policy of avoiding the need for self-censorship by the media.  (Gertz, supra, at pp. 339–348, 94 S.Ct. at pp. 3006–11, 41 L.Ed.2d at pp. 805–810.)   Thus, we turn to the law of California to determine the standard of liability for defamation suits by private individuals against media defendants.

At common law, a variety of privileges to defame developed out of the recognition that some interests of speakers or publishers are sufficiently important to allow room for erroneous statements.  (Prosser & Keeton, Torts (5th ed. 1984) § 115, pp. 824–825;  2 Harper, James & Gray, The Law of Torts (2d ed. 1986) §§ 5.21–5.26, pp. 177–231.)   When California codified the Civil Code in 1872, it adopted in section 47 many of the defamation privileges, both absolute and qualified, which were recognized at common law and codified in Field's Draft New York Civil Code, section 31.  (See Legislative History, Deering's Ann.Civ.Code (1971 ed.) § 47, p. 287;  Taylor v. Lewis (1933) 132 Cal.App. 381, 383–384, 22 P.2d 569 [describing § 47(3) as “․ but a restatement of that of the common law”], citing 1855 decision in Harrison v. Bush, 5 El. & Bl. (Q.B.) 344 [119 Eng.Rep. 509];  see generally Comment, California Civil Code Section 47(3):  Should There Be A Public Interest Privilege In California?  (1987) 20 Loyola L.A. L.R. 1559, 1559–1561.)   The language of section 47(3) has remained virtually unchanged since its enactment, and recognizes the following qualified privilege:  “A privileged publication or broadcast is one made ․ [i]n 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.”

The California Supreme Court first considered the applicability of the section 47(3) privilege to private individual defamation suits against media defendants in Gilman v. McClatchy (1896) 111 Cal. 606, 44 P. 241.   There the defendant's newspaper, the Evening Bee, ran a story accusing the plaintiff of rape.  (Id., at pp. 608–609, 44 P. 241.)   The court rejected the defendant's reliance on the section 47(3) privilege and distinguished cases recognizing a publisher's privilege to comment on public officials.  (Id., at pp. 613–614, 44 P. 241.)

The Supreme Court continued to distinguish between private and public figures in terms of the applicability of the section 47(3) privilege through the turn of the century.  (See Stevens v. Storke (1923) 191 Cal. 329, 337, 216 P. 371;  Snively v. Record Publishing Co. (1921) 185 Cal. 565, 198 P. 1.)   However, in Snively, the court significantly expanded the section 47(3) privilege in a different way.   There, the court held that nonmalicious defamatory statements of both fact and opinion by the media about public officials are privileged under section 47(3).  (Id., at pp. 571–576, 198 P. 1.)   In so holding, the court incorporated the uncodified common law privilege of fair comment (by statements of opinion on matters of public concern) into the codified privilege for communications between interested parties set out in section 47(3).  (See Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, 8–9, fn. 4, 170 Cal.Rptr. 411;  4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 310, pp. 2580–2581;  Comment, Fair Comment In California:  An Unwelcome Guest (1983) 57 So.Cal.L.R. 173, 181–182.)

In 1943, the court again significantly expanded section 47(3) by holding privileged a nonmalicious defamatory statement made by a newspaper in a suit brought by private individuals.  (Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146, 143 P.2d 20.)   In Emde, the owners of a dairy sued the Stockton Labor Journal for libel based on the Journal's publication of a story asserting the owners violated their contract with the teamsters' union and were therefore the subject of a boycott.  (Id., at p. 148, 143 P.2d 20.)   Without referring to Gilman v. McClatchy, supra, the court held the publication was qualifiedly privileged, noting that “․ the peaceful settlement of labor contention is a matter of vital public concern.”  (Id., at pp. 154, 161, 143 P.2d 20.)

Subsequent opinions of the courts of this state have continued to apply the section 47(3) privilege in suits by private figures against media defendants where the defamatory publications relate to matters of public interest.   Thus, in Glenn v. Gibson (1946) 75 Cal.App.2d 649, 659, 171 P.2d 118 (disapproved on another ground in Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 233, 11 Cal.Rptr. 97, 359 P.2d 465), this court held that newspaper stories implying the plaintiff was operating a brothel frequented by sailors were privileged by section 47(3) because it was war-time and “the welfare of those engaged therein was a matter of vital concern to every right-thinking person.”   We concluded the public was legitimately “interested,” as that term is used in section 47(3), “․ when any recognized interest of the public is in danger, including the interest in the prevention of crime and the apprehension of criminals, the interest in the honest discharge of their duties by public officers, and the interest in obtaining legislative relief from socially recognized evils.”  (Id., at pp. 659–660, 171 P.2d 118;  quoting Rest., Torts, § 598;  see Rest.2d, Torts, § 598, comment (d), pp. 282–283.)

In Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 7 Cal.Rptr. 617, 355 P.2d 265, the court again applied the section 47(3) privilege in a private figure defamation suit against a newspaper.   There, a newspaper serving the Jewish community libeled a private citizen active in that community.  “Maidman held a position of importance in the Southern California Jewish community.   It was therefore of legitimate interest to members of that community, who would be the most likely readers of the defendant newspaper, to know whether Maidman was qualified for his position.”   (Id., at pp. 651–652, 7 Cal.Rptr. 617, 355 P.2d 265.)

In Williams v. Daily Review, Inc. (1965) 236 Cal.App.2d 405, 411–412, 46 Cal.Rptr. 135, the appellate court reversed a judgment in favor of a newspaper because the trial court erroneously instructed the jury that the publication was not libelous per se.  Williams involved a paving contractor who sued a newspaper which reported on allegations made during a city council meeting that the contractor had fallen behind in his performance under a contract with the city.  (Id., at pp. 407–409, 46 Cal.Rptr. 135.)   Although the appellate court concluded the judgment must be reversed, it considered the plaintiff's contention regarding the applicability of the section 47(3) privilege for the guidance of the trial court on remand.  (Id., at pp. 413, 416, 46 Cal.Rptr. 135.)   The court explained that the “crucial issue” in determining the applicability of the section 47(3) privilege is “․ whether or not the publication was made in the public interest.”  (Id., at p. 417, 46 Cal.Rptr. 135.)   This publication was made in the public interest, the court concluded, because it involved criticism of the work of an independent contractor paid for out of public funds.  (Ibid.)  Williams is in accord with common law interpretation of the fair comment privilege, which includes within the definition of public interest “․ work to be paid for out of public funds․”  (Prosser & Keaton, Torts (5th ed. 1984), § 115, subd. (5), p. 831.)  Williams is factually indistinguishable from the present case.   Here, too, a news entity reported on a private contractor's performance of work paid for with public funds.

Plaintiff would have us ignore the common law interpretation of section 47(3) because, she claims, appellate decisions since Gertz have been reluctant to apply section 47(3) to private figure defamation suits against media defendants.2  However, in Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 172 Cal.Rptr. 49, a case closely analogous on its facts, the appellate court, applying the section 47(3) privilege, affirmed a judgment notwithstanding the verdict in favor of a media defendant sued for defamation by a private figure.   Rollenhagen, an automobile mechanic, was arrested for failure to provide a written repair estimate, following an investigation based on a consumer's complaint.   A local affiliate of CBS aired a television report showing the consumer's allegations of shoddy work, Rollenhagen's arrest, and portions of an interview with Rollenhagen.  (Id., at pp. 417–419, 430, 172 Cal.Rptr. 49.)   The court held the report was qualifiedly privileged under section 47(3) because fraudulent automotive practices are a matter of genuine public interest, as evidenced by the extent of legislation in the area (see Bus. & Prof. Code, §§ 9880.1–9889.21), and because the publication was directed to residents of the area in which Rollenhagen conducted his business who would be particularly interested in his misconduct.  (Id., at pp. 426–427, 172 Cal.Rptr. 49.) 3

 Plaintiff asserts that Rollenhagen was incorrectly decided and directly conflicts with the decision in Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 165 Cal.Rptr. 347.   In Rancho La Costa, the owners of a resort sued the publishers of Penthouse magazine for defamation based on an article which accused them of being “mobsters, gangsters, members of organized crime and charged that the ․ resort itself is an organized crime headquarters.”  (Id., at p. 649, 165 Cal.Rptr. 347.)   The defendant publishers sought to invoke the section 47(3) privilege solely on the ground “․ that the public at large ․ is interested generally in the fight against organized crime.”  (At p. 667, 165 Cal.Rptr. 347.)   The court held that ground inadequate as a matter of law.  (Ibid.)  The court explained that the word “interested,” as used in section 47(3) refers to “․ a more direct and immediate concern [which] is something other than mere general or idle curiosity of the general readership of newspapers and magazines.”   (Id., at pp. 664–665, 165 Cal.Rptr. 347.)   That standard is not inconsistent with common law interpretation of section 47(3) extending back long before the decision of the United States Supreme Court in Gertz.   Thus, a publication is of public interest if its appeal is not merely as a matter of gossip or idle curiosity (Institute of Athletic Motivation, supra, 114 Cal.App.3d at p. 11, 170 Cal.Rptr. 411), but deals with substantial matters affecting the general public such as the prevention of crime and apprehension of criminals, the honest discharge of duties by public officials, the obtaining of relief from socially recognized evils (Glenn v. Gibson, supra, 75 Cal.App.2d at pp. 659–660, 171 P.2d 118), or the criticism of work performed by contractors paid from public funds (Williams, supra, 236 Cal.App.2d at p. 417, 46 Cal.Rptr. 135).   By contrast, in Rancho La Costa, supra, 106 Cal.App.3d, 165 Cal.Rptr. 347, the defendant publisher relied only on the public interest “․ generally in the fight against organized crime.”  (At p. 667, 171 P.2d 118.)   As the court pointed out, there was no evidence “․ of any particular or specific subject matter of communication” (Ibid.) to elevate the defamatory material above the level of idle gossip, thus reducing defendant's position to “․ no more than the [untenable] claim of carte blanche application of the privilege of section 47(3) to any newspaper or magazine of national or general readership․”  (P. 668, 171 P.2d 118.) 4

 Here, the consumer reports broadcast by defendants were in the public interest within the meaning of the qualified privilege set out in section 47(3).   Plaintiff, a general contractor, was paid from public funds, the proceeds of a loan from HUD.   The HUD loan was administered by officials of the local housing authority, SHRA.   SHRA conducted the public bid on behalf of the homeowner at which plaintiff was the lowest qualified bidder.   SHRA continued to be involved after awarding the contract to plaintiff, attempting to resolve the homeowner's complaints.   The stories were aired locally to an audience who would be interested in the substandard work of a contractor paid with public funds administered by the local housing agency and the steps taken by that agency to resolve the problem.   We hold, therefore, that defendants' publications come within the qualified privilege of section 47(3).

II

MALICE

 Plaintiff contends the trial court erroneously found she had raised no triable issue of material fact regarding malice.   We agree.

“Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.   The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.   In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.   Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.  [Citations.]”  (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785 [reversing summary judgment because triable issue whether section 47(3) privilege overcome by malice].) 5

 For purposes of the section 47(3) privilege, “malice” may be either express, i.e., evidenced by communications motivated by hatred or ill will, or implied, i.e., evidenced by communications made without reasonable or probable cause to believe in their truthfulness.  (Civ.Code, § 48a, subd. 4(d);  Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413, 134 Cal.Rptr. 402, 556 P.2d 764;  Stationers Corp., supra, 62 Cal.2d at p. 418, 42 Cal.Rptr. 449, 398 P.2d 785.)   Mere negligence in investigating a news story does not rise to the level of implied malice.  “It is only when the negligence amounts to a reckless or wanton disregard for the truth, so as to reasonably imply a willful disregard for or avoidance of accuracy, that malice is shown.”  (Roemer v. Retail Credit Co. (1970) 3 Cal.App.3d 368, 372, 83 Cal.Rptr. 540;  see also Rollenhagen, supra, 116 Cal.App.3d at p. 423.)   Factors relevant to the determination whether a publisher acted with implied malice include (1) cumulative evidence of negligent investigation, and (2) the absence of a “hot news” story, so that the need for expeditious release is not present, especially where publication involves a substantial danger of injury to reputation.  (Rollenhagen, supra, 116 Cal.App.3d at pp. 423–424, 172 Cal.Rptr. 49;  Widener v. Pacific Gas & Electric Co., supra, 75 Cal.App.3d at p. 434–435, 142 Cal.Rptr. 304.)

Here, there is no evidence that defendants acted with express malice, i.e., hatred or ill will.   Both the reporter, Willis, and the volunteer investigator, Mary LaCombe, declared they had never heard of plaintiff or The Energy Savers prior to their involvement in the stories, and that they did not harbor feelings of hatred or ill will toward plaintiff nor the desire to vex, annoy or injure her personally or professionally.   Plaintiff did not submit any competent evidence to contradict their declarations.

However, strictly construing defendants' evidence and liberally construing plaintiff's, we believe for a number of reasons there is a triable issue whether defendants acted with implied malice.   First, although Mary LaCombe did not help prepare the broadcasts, she did investigate and gather evidence for over two years;  yet she never once had personal contact with plaintiff.   The failure of the person investigating for two years to make contact with the object of the investigation indicates negligence, at the very least.

Second, although Willis declared he tried to contact plaintiff at her residence and business on several occasions prior to airing the broadcasts, plaintiff declared (1) her business was located in her residence at the time, (2) in the six weeks prior to the broadcast, and “at most times prior to that period,” she maintained an operable answering machine in her home, (3) either she, her husband or her children were at home many hours of the work week, and (4) Willis never communicated with her or her family members, nor left a message on her answering machine.   This evidentiary conflict creates a triable issue whether defendants failed to contact plaintiff prior to airing a story which posed a significant risk of damage to her reputation.

Third, although LaCombe declared she investigated Mahalia Lawson's complaint and gathered information, her declaration includes no details of the investigation, nor of the defendants' usual investigatory practices.   Similarly, Willis declared he reported the stories at issue, but does not detail the extent of the investigation he undertook prior to airing the reports, nor what his usual practice is in reporting consumer stories.  (Cf. Stationers Corp., supra, 62 Cal.2d at pp. 418–419, 42 Cal.Rptr. 449, 398 P.2d 785 [detailed declarations of investigation].)   Strictly construed, defendants' declarations fail to establish that any real investigation was conducted prior to airing the stories.

Fourth, the evidence shows Kelly Broadcasting knew, prior to airing the stories, that Lawson had complained about her situation to numerous public agencies over the years and that an employee of one of those agencies, the Contractors' State License Board, declined to pursue Lawson's case against plaintiff because of a “ ‘lack of basis.’ ”   This adds further evidence that defendants' investigation was not simply negligent, but conducted without regard for the truth.

Fifth, plaintiff's uncontradicted declaration demonstrates defendants made a number of false statements in their broadcasts, including that plaintiff installed bubbling and peeling wallcovering which was in fact installed prior to her performance of the contract, that she installed doors which were actually installed by someone else, that she applied plaster which cracked when in fact Lawson's home did not have plaster, that she was paid $8,000 to paint and patch Lawson's home when in fact she was paid less than $6,000 to paint, install a sewer line and remodel the kitchen and bathroom, and that the paint she applied had peeled when in fact the final painting was performed by someone else.   While these statements in plaintiff's declaration go principally to the issue of falsity, they also provide further evidence that defendants were at best grossly negligent in broadcasting the stories.

Finally, that LaCombe investigated Lawson's complaint for over two years, and that defendants have provided no explanation for their timing of the broadcasts, indicates that the broadcasts were not “hot news” stories.

Viewing the evidence as a whole, and according to the appropriate standard of appellate review, we conclude the trial court erred in finding there was no triable issue of material fact regarding malice.   Rather, the evidence adduced at the motion for summary judgment establishes defendants failed to investigate the stories at all, and specifically failed for two years to contact plaintiff, even though they had been told the consumer's complaint had no merit, they knew of the significant risk of harm to plaintiff's professional reputation, and they were not faced with a “hot news” story.   Finally, the stories they aired contained numerous erroneous statements of fact.   This evidence suggests the stories were published with wanton or reckless disregard for the truth and therefore with implied malice.

The judgment is reversed.   Plaintiff shall recover her costs on appeal.

FOOTNOTES

1.   In fact, several states have adopted the public interest standard, although a majority of jurisdictions apply a negligence standard in defamation suits by private individuals against media defendants.   (Annot., State Constitutional Protection of Allegedly Defamatory Statements Regarding Private Individual (1984) 33 A.L.R.4th 212.)

2.   Plaintiff asserts California courts have rejected the public interest test in favor of the negligence standard described in Gertz, citing in part Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, 160 Cal.Rptr. 97, 603 P.2d 14 and Franklin v. Benevolent etc. Order of Elks (1979) 97 Cal.App.3d 915, 159 Cal.Rptr. 131.   However, in Vegod, the court was concerned solely with the First Amendment privilege and therefore expressly declined to express any view on the applicability of the California statutory privilege in a defamation suit by a private figure against a media defendant.  (25 Cal.3d at p. 770, fn. 1, 160 Cal.Rptr. 97, 603 P.2d 14.)  Franklin holds merely that a public school teacher is not a public figure for purposes of the First Amendment privilege;  the opinion does not consider the applicability of the statutory privilege.  (97 Cal.App.3d at pp. 930–931, 159 Cal.Rptr. 131.)   Thus, neither decision supports plaintiff's position.One appellate decision does state, in dicta, that the negligence standard applies in defamation suits by private figures against media defendants.   (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal.App.3d 415, 433, 142 Cal.Rptr. 304 [cert. denied 436 U.S. 918, 98 S.Ct. 2265, 56 L.Ed.2d 759 (1978) ], overruled on other grounds by McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846, fn. 9, 231 Cal.Rptr. 518, 727 P.2d 711.)   However, Widener relied on Gertz for that pronouncement.   As Gertz does not support the proposition, we decline to follow Widener.

3.   Two other post-Gertz opinions have affirmed the viability of the public interest test established by section 47(3).   Although neither case involves a media defendant, both involve defamatory statements reprinted by the media.In Lagies v. Copley (1980) 110 Cal.App.3d 958, 168 Cal.Rptr. 368, the appellate court sustained a demurrer in favor of the defendant, whose allegedly defamatory statements about a news reporter in her employ were reprinted in the California Journal.   The court held the statements qualifiedly privileged under section 47(3) because the statements concerned the newspaper's employee problems, an area of “unqualified” and “legitimate” public interest.  (Id., at pp. 967–968, 168 Cal.Rptr. 368.)In Institute of Athletic Motivation v. University of Illinois, supra, 114 Cal.App.3d at pp. 11–12, 170 Cal.Rptr. 411, the court affirmed a finding that letters critical of plaintiff's sports psychology test, mailed to various sports organizations and magazines and reprinted in one of the magazines, were qualifiedly privileged by section 47(3) because the recipients of the letters had an interest in their subject matter.  (Id. at p. 12, 170 Cal.Rptr. 411.)   In struggling with the meaning of the word “interested,” as used in the statute, the court relied on a commentator's suggestion that it refers to matters not of idle curiosity or gossip but rather of substance apart from general news value.  (Id., at p. 11, 170 Cal.Rptr. 411.)

4.   Plaintiff asserts Rancho La Costa correctly recognizes that the policy interests protected by the statutory privilege are less compelling than the reputational interest of the defamed individual.   This is true, plaintiff argues, because the former interests are founded merely on a statutory provision while the latter interest is founded in the constitutional right of privacy.  (See id., at p. 667, 171 P.2d 118.)   The United States Supreme Court has explained that the policies which support a privilege for defamatory statements are founded in the constitutional rights to freedom of speech and of the press, just as the state interest in protecting reputations is founded in the constitutional right of privacy.   Moreover, the high court has expressly left it up to the states to determine the balance between these conflicting constitutionally-derived interests.  (Gertz, supra, 418 U.S. at pp. 339–348, 94 S.Ct. at pp. 3006–11, 41 L.Ed.2d at pp. 805–810.)

5.   Defendants would have us apply the rule that summary judgment is a “favored remedy” in free speech cases, as declared in Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, 150 Cal.Rptr. 258, 586 P.2d 572;  Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1046, 201 Cal.Rptr. 665;  and Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 854–855, 200 Cal.Rptr. 674.   However, in Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 208 Cal.Rptr. 137, 690 P.2d 610, the Court explained that summary judgment is a favored remedy only in the sense that where the plaintiff must prove actual malice under the standard announced in New York Times v. Sullivan, supra, he must do so by clear and convincing evidence, rather than by the usual preponderance standard.   Thus the court in reviewing a motion for summary judgment where the New York Times standard applies must find no triable issue unless it appears that actual malice may be proved by clear and convincing evidence.  (Id., at p. 252, 208 Cal.Rptr. 137, 690 P.2d 610.)   Here, however, we are concerned with the statutory standard of malice which need not be proved by clear and convincing evidence.   Thus, summary judgment is not a favored remedy in this case.

PUGLIA, Presiding Justice.

CARR and SPARKS, JJ., concur.