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District Court of Appeal, Second District, Division 2, California.

Samuel MAIDMAN, Plaintiff and Appellant, v. JEWISH PUBLICATIONS, INC., Joseph Jonah Cummins, David Weissman and Myer Keleman, Defendants and Respondents.*

Civ. 23916.

Decided: February 11, 1960

Samuel Maidman, in pro. per. David H. Paltun, Los Angeles, for respondents.

This appeal is from a judgment of dismissal entered after defendants' special and general demurrer to plaintiff's third amended complaint for libel was sustained without leave to amend. The sole issue presented is whether plaintiff's complaint states a cause of action for libel against the defendants, or any of them. Since the allegations of the complaint must be taken as true for the purpose of testing the correctness of the ruling on demurrer (Carruth v. Fritch, 36 Cal.2d 426, 429, 224 P.2d 702, 24 A.L.R.2d 1403; see also 39 Cal.Jur.2d 192, Pleading, § 131, and cases cited), our statement of facts will be substantially in the language of plaintiff's pleading.

Form more than 16 years plaintiff has been and now is an attorney at law practicing his profession in the county of Los Angeles; for many years past he ‘has been, and now is, widely known as a lawyer and as one who is generally active in community affairs and has enjoyed a good name and reputation in Los Angeles and elsewhere. During all of the times herein mentioned and for many years last past, plaintiff was and now is an active leader of B'nai B'rith, having served as the president of his lodge; a member of the Grand Lodge of B'nai B'rith District No. 4 * * * for which body he served as chairman and member of many of its committees and as a member of its Executive Board; and a member of the B'nai B'rith Youth House Corporation. Additionally, plaintiff was and now is an active leader of the Jewish Community of Los Angeles, * * * and a member of various committees of the Los Angeles Jewish Community Council.’ In March, 1955, plaintiff was elected chairman of the Administrative Board of the B'nai B'rith Record, a newspaper which is the official publication for the Southern California B'nai B'rith Council, and for three continuous years from that date, until March 20, 1958, was actively engaged in the performance of duties as such chairman.

Defendant Jewish Publications, Inc., was a corporation operating and publishing the B'nai B'rith Messenger, an Anglo-Jewish newspaper of general circulation, published weekly in Los Angeles County and circulated principally within said county. Defendant Cummins was editor and individual publisher of the Messenger; defendant Weissman was its associate editor and defendant Keleman its general manager. The B'nai B'rith Messenger was in no way connected with the B'nai B'rith organization.

In the November 15, 1957, issue of the B'nai B'rith Messenger there appeared an editorial written by defendant Cummins which editorial commented upon certain statements made by plaintiff during the course of a trial in the Superior Court. The following is the complete editorial:

‘An Important Ben B'rith Interprets Rosh Hashanah

‘A trial was in progress in the Superior Court of the State of California, Department 5, in Glendale—before the Honorable Judge Roger A. Pfaff, entitled Frazier v. Pass. A Gentile attorney was representing two Jewish defendants, and a Gentile plaintiff was represented by attorney Samuel Maidman who is the ‘Chairman of the Administrative Board of the B'nai B'rith Record,’ the house organ of the Southern California Council of B'nai B'rith Lodges.

‘The Gentile attorney, out of respect for his two Jewish clients, asked Judge Pfaff if he could have a continuance for his Jewish clients inasmuch as ‘tomorrow’ was a Jewish holiday, Rosh Hashanah, and that his clients would like to observe the Jewish holiday.

‘Judge Pfaff, knowing that Samuel Maidman is Jewish, asked Mr. Maidman if he had any objections. Whereupon Mr. Samuel Maidman, ‘Chairman of the Administrative Committee of the B'nai B'rith Record,’ gave the Court this ‘profound’ and ‘learned’ discourse on the meaning and value of Rosh Hashanah.

‘The following quotations are word for word from the Reporter's Transcript:

“I have that same problem but out of the good book there is a provision which says on a joyous holiday such as a New Year people may do a duty, and not do penance. The holiday where I think it is generally observed that we don't observe our daily habits is—so far as duties are concerned—is Yom Kippur, which is the holiday next week, so if I can serve my client I have a duty which I think the good Lord * * *'

‘Then Mr. Maidman let the Court and all of his auditors know that he ought to know something about this matter of the proper observance of Rosh Hashanah since he is the Chairman of the Administrative Board of the B'nai B'rith Record, which is tantamount to ‘publisher.’

‘After Mr. Maidman's profound interpretation, i, e., that Rosh Hashanah is a ‘joyous holiday’, Judge Pfaff refused a continuance and the case proceeded right through Rosh Hashanah.

‘Of course, even your adolescent children know that Rosh Hashanah is not a ‘joyous holiday’; that Rosh Hashanah and Yom Kippur are the two most solemn holidays in the Jewish year.

‘It is reasonable to presume that Judge Pfaff too was under the impression that Rosh Hashanah is s solemn Jewish holiday until he heard Mr. Maidman's garbled exposition on Rosh Hashanah.

‘Isn't it too bad that with the hundreds and hundreds of Jews in B'nai B'rith who know something about our Jewish religion, that such an individual is put into a position where he is able to, with ostensible authority, make all of us Jews look ridiculous.

‘We wonder whether the thousands of members of B'nai B'rith who observe Rosh Hashanah with solemnity will not simply enthrall over Mr. Maidman's speech hereinabove quoted.’

Plaintiff alleges that ‘[s]aid editorial of November 15, 1957, is entirely false and untrue excepting only in that: 1. It correctly states that a trial was in progress in the Superior Court of the State of California, Department 5, in Glendale before the Honorable Judge Roger A. Pfaff, entitled ‘Frazier v. Pass'; and 2. It correctly states that a gentile plaintiff was represented by attorney Samuel Maidman who is the chairman of the Administrative Board of the B'nai B'rith Record; and 3. It correctly quotes a portion of the reporter's transcript of said trial.’

With further reference to said editorial, plaintiff alleges: ‘Said editorial was published and circulated by defendants with malice and oppression toward plaintiff, with wanton disregard of his rights and feelings, and with the deliberate intent and purpose of disgracing and defaming plaintiff and injuring him in his reputation, standing and stature in the Jewish community, in B'nai B'rith, and in the practice of his profession as an attorney at law and among his present and prospective Jewish and other clients; and said editorial was not only false as herein alleged, but at the time it was published and circulated, was known by defendants to be false as herein alleged, and defendants did not have probable or any cause for believing it to be true.’

By way of inducement, the complaint sets forth the details of a long standing feud between defendant Cummins and the Messenger on the one hand, and plaintiff and the Record on the other, which dispute was principally concerned with the methods of soliciting advertising allegedly employed by the Record and with the disputed rights of the respective publications to use the words ‘B'nai B'rith’ as a part of their names. Copies of the correspondence between plaintiff and defendant Cummins, and of various editorial commentaries which had appeared in the competing newspapers are incorporated into the complaint. This correspondence and these editorials indicate that for a considerable period of time feelings of bitterness and unfriendliness had characterized the relations of the parties.

It is further alleged that the court incident mentioned in the editorial, which is the subject of the instant action, occurred in September of 1956, and that while defendants acquired full knowledge of the matter within two weeks, they did not publish or circulate the editorial until more than thirteen months later. By way of innuendo, the complaint states that the November 15 editorial was intended to and did, by reason of the prior editorials with which the Messenger's readers were familiar, convey the following meanings: that plaintiff was a worthless and unimportant member of B'nai B'rith, that plaintiff was guilty of unprofessional conduct as an attorney in that he made a false statement of fact in open court, that he wrongfully misused his positions, that he brought disrespect upon Jewish people generally, that he inconvenienced and embarrassed the Jewish litigants who were his adversaries, that he made all Jews look ridiculous, that he had no respect for the Jewish religion and the Jewish people, that he was not worthy of being placed in a position of trust in Jewish affairs or in the Jewish community because he knew less than adolescent children about the Jewish religion, and that he did not conform to the religious views and opinions of the thousands of members of the B'nai B'rith or other Jews in the community.

The complaint further alleges that the editorial is libelous in that it exposed plaintiff to hatred, contempt, ridicule and obloquy, that it was published with malice and with an intent to defame the plaintiff, that a retraction was demanded but that no correction was published. Damages are prayed for as follows: general damages in the amount of $25,000 for mental anguish and physical pain and suffering; general damages in the amount of $50,000, for injury to reputation in B'nai B'rith and the Jewish community; ‘special damages' in an unascertained amount for diminution of income as an attorney; ‘special damages' in an unascertained sum for loss of clients; and punitive damages in the amount of $150,000. With regard to the amount of the special damages, the complaint states: ‘[t]he exact amount of plaintiff's damages * * * is unknown at this time, and when ascertained an amendment to this complaint will be made.’

We are now brought to the determinative question: whether, assuming the truth of the facts alleged as hereinbefore set forth, the editorial in question is reasonably susceptible of an interpretation which would give it the character of a libelous publication.

‘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 tenency to injure him in his occupation.’ Civil Code, § 45.

‘The Code definition of libel is very broad and has been held to include almost any language which, upon its face, has a natural tendency to injure a person's reputation, either generally, or with respect to his occupation. Schomberg v. Walker, 132 Cal. 224, 64 P. 290; Stevens v. Snow, 191 Cal. 58, 62, 214 P. 968; Tonini v. Cevasco, 114 Cal. 266, 272, 46 P. 103. In the determination of this question, the alleged libelous publication is to be construed ‘as well from the expressions used as from the whole scope and apparent object of the writer.’ Stevens v. Storke, 191 Cal. 329, 334, 216 P. 371, 373; Bettner v. Holt, 70 Cal. 270, 11 P. 713, 715. The case last above cited states that: ‘Not only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning, under all the circumstances attending the publication, which such language may fairly be presumed to have conveyed to those to whom it was published; so that in such cases the language is uniformly to be regarded with what has been its effect, actual or presumed, and its sense is to be arrived at with the help of the cause and occasion of its publication. And in passing upon the sufficency of such language as stating a cause of action, a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of a complaint for libelous publication according to its natural and popular construction.’ That is to say, the publication is to be measured, not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader. A defendant is liable for what is insinuated, as well as for what is stated explicitly. Schomberg v. Walker, supra, 132 Cal. at page 227, 64 P. 290 [at page 291]. Bates v. Campbell, 213 Cal. 438, 441–442, 2 P.2d 383, 385.

In 1945 section 45a of the Civil Code was enacted: ‘A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.’

It was recently held by our Supreme Court in MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 343 P.2d 36, that a publication may be libelous on its face even though it may be susceptible of an innocent interpretation. In so holding, the Supreme Court disapproved inconsistent language found in earlier cases strongly relied upon by defendants in the case at bar. In this connection, the MacLeod decision states (at page 43 of 343 P.2d): ‘When section 45a is read in the light of the Schomberg case it is clear that language may be libelous on its face even though it may also be susceptible of an innocent interpretation. The test is whether a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts. If it does, 'whether the charge be directly made or merely implied, the publication, without averment, colloquium, or innuendo, will, in itself constitute a libel.’

‘The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense.’

It is perhaps true, as respondents contend, that the editorial with which we are here concerned may reasonably be given an innocent or non-defamatory interpretation. On the other hand, however, we hold that it is reasonably susceptible of the more sinister interpretation of which appellant complains. It is immediately apparent from a reading of the editorial that it was written in a sharply critical and sarcastic vein. It is a fair and reasonable inference that the author and publisher intended thereby to ridicule appellant's conduct and to bring down upon him the displeasure of Jewish members of the community. The sting of the writing complained of, when it is given one of the more sinister of its reasonably permissible interpretations, is that appellant abused his position as a leader in the Jewish community and breached his duties as an attorney at law in that, for the purpose of defeating his adversary's request for a continuance, he falsely represented to the court the character of a religious holiday and thereby deceived the court, all to the detriment and embarrassment of his coreligionists, who sought the continuance on religious grounds.

It will be a matter for the determination of the trier of the facts, in the light of all the facts and circumstances which the evidence may establish, whether the publication complained of was used and understood in a defamatory sense. As stated in Vedovi v. Watson & Taylor, 104 Cal.App. 80, 88, 285 P. 418, 422: ‘[I]f the language of the article is capable of two meanings, one of which is harmless and the other libelous, and it is alleged that the same was used and understood as conveying the latter meaning, a cause of action is stated, and it is the province of the jury to determine in which sense the language was used and understood by the readers of the article.’

Likewise, it will be within the province of the trier of the facts to determine the truth or falsity of the various statements of fact contained in respondents' editorial. It is again to be emphasized that for the purposes of the present appeal, we must accept, at face value, appellant's allegations that with specified exceptions all statements of fact contained in the writing were false and that they were intentionally made by the author with knowledge of their falsity.

We hold, therefore, that the implied or insinuated defamatory charge deducible from the language of the writing in question rendered it libelous per se. The trial court therefore erred in sustaining the general demurrer without leave to amend. It may also be stated in this case, as the Supreme Court stated in MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d 536, 343 P.2d 36, 46 that in the complaint ‘there are certain allegations that could be clarified or more explicitly stated. Moreover, the complaint may be subject to other grounds stated in the special demurrer but not urged on appeal. The trial court may in its discretion require clarification of any uncertainties or ambiguities'.

The judgment is reversed and the cause is remanded for further hearing on the special demurrer. Purported appeals from two nonappealable orders are dismissed.

HERNDON, Justice.

FOX, P. J., and ASHBURN, J., concur.

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