KAPELLAS v. KOFMAN

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Court of Appeal, First District, Division 4, California.

Richard Dale KAPELLAS et al., Plaintiffs and Appellants, v. Abraham KOFMAN, Defendant and Respondent.

Civ. 25096.

Decided: March 13, 1969

Gonick, Schmid & Bernstein, Oakland, for appellants. Hardin, Fletcher, Cook & Hayes, Oakland, for respondent.

Plaintiff Inez M. Kapellas was a candidate for the Alameda City Council in 1965. Defendant Abraham Kofman was the publisher of the Alameda Times Star and the Times Star Advertiser, newspapers.1 These newspapers published identical editorials, headed ‘Children's Welfare Must Come First,’ in which defendant urged voters to consider that the city council is a tough and taxing job, one that would keep Mrs. Kapellas away from her children too much of the time, and to consider her six young children.

The editorial contained these statements about the conduct of the Kapellas children: Reports on the police blotter show that Mrs. Kapellas is needed in her home more than elsewhere. The Kapellas children have caused a great deal of bother to local police, according to the police blotter. One son was picked up for suspicion of shoplifting. A son was in trouble for attempted burglary, loitering and larceny. The same son was once found with a sum of money he claimed to have found but which he had really taken from his mother's purse. A girl was found wandering the streets several times. Foul language emanating from the household had been complained of by neighbors. There are various police reports concerning the Kapellas children which the newspapers have refrained from publishing lest it seem the newspapers were picking on Mrs. Kapellas.

Demand for retraction was made on the publisher of the two newspapers, in a notice by the attorneys who now represent plaintiffs, in which the publisher was ‘notified that every statement concerning the conduct of the children of Mrs. Inez Kapellas and every statement concerning Mrs. Kapellas' qualifications for the City Council and her suitability as a mother’ made in the editorials are claimed to be libelous. No retraction was published, despite demand therefor.

Mrs. Kapellas, individually and as guardian ad litem for her children, filed an action for libel and an action for invasion of privacy on behalf of her children. Demurrer to the causes of action was sustained without leave to amend. Judgment was given for defendant. From this judgment plaintiffs appeal.

The Libel Action

Plaintiffs do not allege special damages. By the terms of section 48a of the Civil Code, therefore, they were obliged to serve on the publisher ‘a written notice specifying the statements claimed to be libelous and demanding that the same be corrected,’ as a condition for the lawsuit.

We agree with the trial court that the demand for retraction was insufficient. Section 48a requires a written notice specifying the allegedly libelous statements made in a newspaper. It is the duty of the person who asserts that he has been defamed to do the specifying; it is not the duty of the potential defendant in a libel suit to sort out the statements he has made and to make a decision as to which, if any, he may find proper to retract and which, if any, he may wish to let stand. If specification by the person who says he was aggrieved be properly made, the publisher may find that this or that specified statement is true and therefore defensible in a lawsuit; that another statement is false or based on such doubtful evidence that it ought to be withdrawn; or that even a true statement or several true statements likewise ought to be withdrawn or modified. On the other hand, a plaintiff would have the advantage of putting the publisher to his defense of every statement, even though plaintiff might later abandon the assertion of libel of one or more, or even of a majority, of the statements.

We have made the above observations, not for the purpose of justifying the statute, but of pointing out that its purposes would be thwarted, and its effect virtually nullified, if a blanket demand rather than a specific one for retraction were permitted. It is not our function to decide upon the policy of the statute. As to its constitutionality, which is attacked by plaintiffs, we need only say that the statute has long since withstood attack on this score. (Pridonoff v. Balokovich, 36 Cal.2d 788, 228 P.2d 6; Werner v. Hearst Publishing Co., 9 Cir., 297 F.2d 145.)

In Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 121 P.2d 761, there was an insufficient demand for retraction where plaintiff's counsel wrote that no mere retraction could possibly atone and requested compensation instead. In Anderson v. Hearst Publishing Co., D.C., 120 F.Supp. 850, demand was held insufficient which asked that ‘certain statements regarding me’ be retracted after publication of an article, three columns by ten inches, which contained eight references to the plaintiff. In MacLeod v. Tribune Publishing Co., 52 Cal.2d 536, 343 P.2d 36, the allegedly libelous article ran only 17 typewritten lines. The demand read, ‘This article is grossly libelous and I therefore demand that the same be corrected or retracted as provided in Section 48(a) of the Civil Code of the State of California’ (p. 553, 343 P.2d p.45). The court distinguished Anderson because of the length of that article and the demand that only ‘certain statements' be retracted, and noted, on the contrary, that in MacLeod the article was short, had been set out in plaintiff's demand, and made but one reference to the plaintiff, namely, that he had been recommended by a Communist newspaper for the position of Councilman of the City of Oakland.

In the present case, unlike that of MacLeod, the editorial was fairly long, consisting of 69 lines in 16 paragraphs. Although it is not difficult to separate the statements which are set forth above, they must nevertheless be plucked from the whole editorial which is directed against Mrs. Kapellas' candidacy. The editorial contains statements which counsel for Mrs. Kapellas, in their brief, do not say are libelous, such as: that Mrs. Kapellas has been married twice; that she is the mother of six young children; that she already has a job which keeps her from home during the daytime; that if she becomes a member of the city council she will be kept away on many evenings; that she adopted Alameda as her home some years ago. But more important than the necessity for extracting from the whole the statements presently asserted to be defamatory, is the uncertainty referred to above, of finding which of the uncomplimentary declarations are asserted to be truly libelous. Noncompliance with section 48a is fatal to the asserted cause on libel.

The Action Based on Invasion of Privacy

The action for invasion of privacy is brought on behalf of the children, and not of Mrs. Kapellas. It was proper to sustain the demurrer. The asserted cause on violation of privacy is set forth in the third count of the complaint. Since it incorporates the allegations in two counts which purport to charge defendant with libel and refers to defamation of the reputations of the plaintiffs, as well as referring to plaintiff's humiliation, the third count has a remarkable resemblance to an action for libel. It is not permissible to avoid a statute on libel where, as here, there has been noncompliance with its terms. See Werner v. Times-Mirror Co., 193 Cal.App.2d 111, 14 Cal.Rptr. 208, and Grimes v. Carter, 241 Cal.App.2d 694, 50 Cal.Rptr. 808, a slander case in which plaintiff sought to avoid the necessity of posting the undertaking required in such cases by section 830 of the Code of Civil Procedure, by a purported action for invasion of privacy. As in the Grimes case (p. 697, 50 Cal.Rptr.808), whatever distress plaintiffs (the children) suffered was secondary to the alleged defamatory publications.

But, besides virtual amalgamation of the libel and the privacy causes, there is another impassable obstacle to the progress of the cause. The candidacy of Mrs. Kapellas made her newsworthy and, in doing so, made her children subject to comment. In the true action for invasion of privacy, the action is maintainable even though the comments be true. Persons closely related to public figures in their activities lose, to some extent, their right to the privacy that one without such connections would have. (Carlisle v. Fawcett Publications, Inc., 201 Cal.App.2d 733, 747, 20 Cal.Rptr. 405; Prosser on Torts (3d ed.) p. 847.) The conflict between the desire of the individual for privacy and the right of the public to be informed about all of the qualifications of a candidate for office by the facilities of a constitutional guarantee, free press must generally, if not invariably, be resolved in favor of the latter; and surely so in the circumstances of this case.

The judgment is affirmed.

FOOTNOTES

1.  Sara F. Kofman and several Does are made codefendants, but for all practical purposes Abraham Kofman may be considered the defendant and respondent.

DEVINE, Presiding Justice.

RATTIGAN, J., and ELKINGTON, J.*, concur.

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