PLANNED PROTECTIVE SERVICES INC v. GORTON

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

PLANNED PROTECTIVE SERVICES, INC. et al., Plaintiffs and Appellants, v. George GORTON et al., Defendants and Respondents.

D005028, D004354.

Decided: February 18, 1988

Susan Golding and Jamie Brierton were candidates for election to the San Diego City Council.   Golding won and Brierton sued her and George Gorton, a compaign helper, for conspiracy, libel and slander arising out of the last-minute mailing to the electorate of a brochure reciting allegations of “violations of trust” and “improprieties” based on conservatorship proceedings involving Brierton.   The court granted Golding's and Gorton's motions for summary judgment, dismissed the complaint and awarded attorney fees to Golding. Brierton appeals.   We affirm dismissal of the complaint and reverse the attorney fee award.

I  Brierton is a lawyer.   From 1979 to 1981, he was director and responsible corporate officer of the San Diego office of Planned Protective Services, Inc. (PPS), a nonprofit corporation with headquarters in Los Angeles.   PPS acts as conservator and guardian by court appointment.1  February 11, 1980, the superior court appointed PPS conservator of the person and estate of Edith Long. Some four months later, her neighbors william and Julianna Berlin addressed complaints about the conservatorship to the presiding probate judge, who appointed attorney David Allen to investigate their charges.   Allen reported the results of his investigation to the court.   While discounting other complaints made by the Berlins, Allen concluded the failure of PPS to sell personalty in the conservatee's estate through a noticed sale with court confirmation would have avoided the Berlins' concern as to that transaction.   Allen noted an appraiser and real estate broker engaged by PPS purchased some of the personalty at the unnoticed sale.   Brierton then conducted his own investigation of the sale and the purchase of items by the appraiser and broker. Concluding Allen's conclusions were erroneous, he met with Allen, who refused to change his report.

PPS then noticed a sale of the Long residence.   The Berlins appeared at the sale, petitioned for PPS removal as conservator and contended the residence was more valuable than the offer obtained by PPS. The court declined to confirm the sale. Following a hearing, the court removed PPS as conservator determining a “violation of trust” occurred because PPS allowed the broker and appraiser to purchase items at the sale.   The county public guardian was appointed successor conservator.   PPS then filed its first and final account as conservator and recited the events leading to its removal and asked the court to review the sale and to make findings concerning a surcharge, if any.   Brierton signed the PPS account as responsible corporate officer and filed a declaration conceding the court in its opinion removing PPS as conservator characterized the appraiser and broker purchase of personalty constituted a “violation of trust.”   The court approved the account, declined to review the sale, awarded ordinary fees to PPS and its counsel and denied an award of fees to PPS for resisting the removal.

In December 1980, Brierton applied for appointment to fill a vacancy on the San Diego City Council.   Meanwhile, the Berlins filed allegations of PPS misconduct with the district attorney, and the San Diego Grand Jury investigated the complaints.   The grand jury foreman and chairman of the committee looking into the charges wrote to William Berlin stating that while the district attorney noted PPS improprieties in the conservatorship, the evidence did not warrant criminal charges, and further, as a result of the investigation, social workers could not suggest a private conservator.

January 21, 1981, the date of the council hearing with respect to the appointment, the San Diego Union published an article reciting the allegations made by the Berlins in the conservatorship proceedings and a statement from William Berlin that Brierton was not fit for office.   At the council hearing, Brierton reviewed conservatorship activities.   Golding and Gorton were present.   Brierton requested a one-week continuance to enable the city council further to investigate conservatorship matters.   The council denied the continuance and appointed Golding to the vacancy.   At the November 1981 election Brierton and Golding were runoff candidates for the seat to which Golding had been appointed.   October 31, Golding mailed to the electorate a single sheet brochure.2  Brierton filed on November 2 his complaint against Golding, Gorton, Grand Jury Foreman William Scott marshall, Committee Chairperson Elizabeth T. Smoot and the Berlins 3 for libel and slander.   The election was held November 3, the next day, and Golding defeated Brierton.

The court granted Golding's and Gorton's motions for summary judgment and awarded fees to their attorneys.   PPS and Brierton separately appeal.   We consolidated the appeals, and affirm the grant of summary judgment and reverse the award of attorney fees.

II

The second amended complaint pleads causes of action in conspiracy, libel and slander.   As the overt acts of the conspiracy concern the libel and slander allegations, summary judgment on those causes of action necessarily adjudicates the conspiracy count.

III

Golding 4 claims the publication of the brochure was privileged under Civil Code 5 section 47(4):

“A privileged publication or broadcast is one made ․

“4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding or (4) of anything said in the course thereof, or (5) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued.” (Emphasis added.)

Golding cites no cases holding a campaign brochure mailed to the electorate is a public journal and we have found none.   Witkin notes former Election Code section 12047 (repealed by Stats. 1973, ch. 1186, p. 2472, § 1) made it a misdemeanor to issue a pamphlet reflecting on the personal character of a candidate absent information about the printer and the sponsoring organization.   Former Election Code section 12048 (likewise repealed) provided a pamphlet distributed in violation of former Election Code section 12047 is conclusively presumed not to be a privileged communication within Civil Code section 47. (4 Witkin, Summary of Cal. Law (8th ed. 1973)  Torts, § 310, p. 2581.)   Former Election Code section 12048 provided a campaign brochure absent the required identification lost section 47 privileges, thus suggesting a brochure with the required identification was entitled to the section 47 privilege.

This historical reminiscence tells us legislative efforts to require campaign brochures be identifiable have been repealed but we find anonymity instructive on analysis of the phrase “public journal.”   The brochure does not identify the printer, the mailer or the sponsoring organization.   The brochure is anonymous.   To cloak this brochure with the section 47(4) privilege requires this throwaway be denominated a public journal.   This we cannot do.   Section 47(4) accords an absolute privilege to fair and true reports of judicial and other official proceedings published in the media.   This privilege stems from the public's need for information “ ‘to fulfill its supervisory role over government.” ’ (McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 975.)   McClatchey notes this supervising responsibility was recognized in Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, and quotes the following from Cox:

“ ‘[I]n a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.   Great responsibility is accordingly placed on the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations.   Without the information provided by the press most of us and many of our representatives would be unable to vote intelligently or to register opinions on the administration of government generally.   With respect to judicial proceedings in particular, the function of the press serves to guarantee the fairness of trials and to bring to bear the beneficial effects of public scrutiny upon the administration of justice.’ ” (McClatchy, supra, at p. 975.)

Our need to know is met (most of the time) by the media and the privilege encourages the media so to do.   A public journal is just that-the vehicle through which the public is informed on a continuing basis about its government.   A one-time mailing of an anonymous campaign broadside to the electorate simply does not constitute the document as a public journal. (See Brocklesby v. United States (9th Cir. 1985) 767 F.2d 1288, 1298, holding publication of graphic charts did not constitute a “public journal.”)   Section 47(4) does not cloak Golding with immunity.

IV

Golding next contends the brochure was privileged under section 47(5):

“A privileged publication or broadcast is one made ․ by a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”

The brochure lists four statements.   Three of the statements derive from judicial proceedings involving the conservatorship and the fourth from a letter to William Berlin signed by the grand jury foreman and committee chairperson advising of the grand jury inquiry into Berlin's complaints.

Clearly, three of the statements were made in judicial proceedings and not in the proceedings of a public meeting. Section 47(2) characterizes as privileged a publication made in any judicial proceeding with exceptions not applicable here. Golding does not assert the section 47(2) privilege and we do not address it.   The three statements fall outside the section 47(5), subpart (1) privilege.

The fourth statement derives from matters before the grand jury.   The secrecy of grand jury proceedings is common knowledge.   The oath taken by members includes the obligation not to disclose any evidence, any statements by other grand jurors or how members voted (Pen. Code, § 911).   The grand jury “retire(s] to a private room” to inquire into cognizable offenses (Pen. Code, § 915) . Only those persons specified in particular Penal Code provisions are permitted to be present during grand jury sessions (Pen. Code, § 939).   In short, proceedings before a grand jury are not the proceedings of a public meeting convened for a lawful purpose and open to the public.   The fourth statement is not privileged under section 47(5), subpart (1).   This conclusion does not end our section 47(5) analysis.

Subpart (2) of section 47(5) gives the privilege if the publication of the matter complained of was a fair and true report and for the public benefit.   Golding is not shielded by the subpart (2) privilege.

Section 47(5), subpart (2), incorporates the “fair and true report” of the subdivision's introductory phrase.   Stated differently, the phrase “the publication” means a “fair and true report” of matters for the public benefit.   Putting aside for the moment whether the brochure statements are a fair and true report, was the publication of the brochure “for the public benefit”?

Political campaigns are contests between candidates seeking election to local, state or federal offices.   The electorate requires to be informed about the candidates and the issues to make an intelligent choice.   A public benefit is conferred when the candidate's strengths and weaknesses are discussed and his or her views on the issues are expounded.   The character of a candidate is considered by the electorate as an indication of the stand he or she will take on issues.   The good and the bad, the truth and the lies, the purity and the infamy-revelations about these matters are necessarily a public benefit as they inform the electorate about the saint as well as the sinner.6 (See McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 859-860;  Miller v. Nestande (1987) 192 Cal.App.3d 191, 201.)   We thus construe the words of the statute “public benefit” to say the publication of the four statements was for the public benefit.

However, we do not reach the next inquiry, are the statements a “true and fair report.”   This is so because we decline to equate a last-minute political hit piece with a fair and true report made by the media in the public benefit.   We read section 47(5) as extending the privilege to reports of events and summations of documents made in the course and scope of the business of dissemination of news and views by media entities.   The section 47(5) privilege serves an important public policy by shielding the purveyor of a fair and true report from liability to a person claiming to be libeled, slandered or defamed by the matters as to which the fair and true report is made.   Absent the privilege, the right and the need of the people to be informed by newspapers, journals, books, radio and television of matters affecting the public interest would be substantially diminished.   However, the public policy subserved by the privilege is inapplicable to the author or source of the matters on which the media reports.   It is one thing to fire a broadside and demolish a reputation.   It is quite another to report the event.   We thus hold the section 47(5) privilege embraces the fair and true report made for the benefit of the public by the media of the contents of documents.   That privilege, however, does not extend to Golding, the author of the document.

V

Golding also claims the section 47(3) privilege characterized in Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646:

“Civil Code section 47(3) extends a general privilege to a communication made ‘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.’ ” (Id. at p. 664.)

The privilege does not extend to Golding.  Rancho La Costa held the section 47(3) privilege does not apply to a publication by a newspaper or magazine merely because it relates to a matter which may have general public interest. (Ibid.)

“The word ‘interested’ as used in the statute refers to a more direct and immediate concern.   That concern is something other than mere general or idle curiosity of the general readership of newspapers and magazines.   One authority explains the statutory interest as follows: (1) The ‘interest’ applies to a defendant who ‘is protecting his own pecuniary or proprietary interest.’ (2)  The required ‘relation’ between the parties to the communication is a contractual, business or similar relationship, such as ‘between partners, corporate officers and members of incorporated associations,’ or between ‘union members [and] union officers.’ (3) The ‘request’ referred to must have been in the course of a business or professional relationship. (4 Witkin, Summary of Cal. Law (8th ed. 1974)  Torts, §§ 306-309, pp. 2577-2580.)” (Rancho La Costa, supra, at pp. 664-665.)

Here, the brochure does not disclose the identity of the author or the distributor.   We do not know the “person interested therein” as the brochure was mailed to the San Diego electorate at large;  we do not know the person “who is also interested therein”;  we thus have no idea concerning the relationship between such persons;  and clearly we do not know the interested person seeking the information.   In short, section 47(3) is wholly inapplicable to the brochure and Golding is not entitled to the privilege.7

VI

As the section 47(3), (4) and (5) privileges claimed by Golding are not available to her, we turn to the question whether one or more of the brochure statements are libelous.

Section 45 provides the statutory definition of libel:

“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.”

A publication which is defamatory of the plaintiff without the necessity of explanatory matter such as inducement, innuendo or other extrinsic fact is libel per se (§ 45a).   A communication addressed to the public at large which is susceptible to an innocent interpretation as well as a defamatory one is libel per se if the communication reasonably conveys a defamatory meaning. (Selleck v. Globe International, Inc. (1985)  166 Cal.App.3d 1123, 1130.)   Here, the brochure trumpets Brierton's ballot statement claim of integrity and relates court findings of trust violations and district attorney conclusions of improprieties in the conservatorship proceedings.   A reasonable reader could conclude the brochure's innuendoes suggest Brierton lacks integrity, cannot be trusted and took advantage of an elderly helpless person.   As integrity is a lawyer's stock in trade, the brochure carries a defamatory meaning. (See MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549-551;  Selleck v. Globe International, Inc., supra, at p. 1131.)   We move to the issue posed by New York Times.   Should the shield of privilege fail, Golding contends New York Times Co. v. Sullivan (1964) 376 U.S. 254, compels affirmance as the record fails to show clearly and convincingly there is a triable issue of fact whether the statements were . published with actual malice.

VII

New York Times holds in a libel suit brought by a public official, the First Amendment requires the plaintiff to show that in publishing the defamatory material the defendant acted with actual malice-“with knowledge that it was false or with reckless disregard of whether it was true or not.   Actual malice must be shown with ‘convincing clarity.” ’ (New York Times, supra, at pp. 285-286.)  “Convincing clarity” has been restated as requiring a plaintiff to prove actual malice at trial by clear and convincing evidence, “i.e., evidence sufficient to permit a trier of fact to find for the plaintiff and for an appellate court to determine that the resulting judgment ‘does not constitute a forbidden intrusion on the field of free expression.” ’ (Reader's Digest Assn. v. Suverior Court (1984) 37 Cal.3d 244, 252. )

Summary judgment is a favored remedy in defamation cases involving actual malice (Reader's Digest Assn., supra, at p. 252) and the New York Times requirement of clear and convincing evidence must be considered on a motion for summary judgment (Anderson v. Liberty Lobby, Inc. (1986) 106 S.Ct. 2505, 2508).   Brierton, a candidate for public office, is a public figure and must meet the clear and convincing evidence of actual malice standard of New York Times, Anderson and Reader's Digest. (Miller v. Nestande, supra, 192 Cal.App.3d 191, 197; Fisher v. Larsen (1982) 138 Cal.App.3d 627, 634, 638.)

Brierton concedes the phrase “violations of trust” and the word “improprieties” appear in court documents and the grand jury letter.   He insists, however, triable issues of fact for jury determination are to be found in the brochure statements which give rise to defamatory inferences being made by readers of the brochure; 8 the phrase “violations of trust” and the word “improprieties” are extracted from entire documents;  while it is true the phrase and the word appear in court and grand jury pronouncements, they are not in context;  when read in conjunction with the content of the entire document or other source material, they lose their pejorative character and the reader of the entirety would not necessarily infer Brierton lacked integrity or trustworthiness.

Brierton relies on Good Government Group of Seal Beach, Inc. v. Suverior Court (1978) 22 Cal.3d 672.   There, the Supreme Court affirmed denial of a motion for summary judgment brought by a citizens group and others named as defendants in a libel action brought by Thomas A. Hogard, a former city councilman. The group distributed a homeowner's newsletter as a flyer to the public charging Hogard and two colleagues had “ ‘extorted by blackmail’ $100,000 from a development company.”   Omitted from the article was the fact the developer paid the money to the city in settlement of a dispute.   The court concluded whether an ordinary reader would understand the assertion in the article was a factual assertion of crime or a statement of opinion respecting Hogard's public conduct was an issue of fact for the jury.   The court stated the standard to be followed by the jury in determining actual malice with respect to the publication of words which could constitute fact or opinion:

“It is clear that honest belief of the defendant is the touchstone of the privilege enunciated in New York Times, and that a statement is entitled to constitutional protection if the words used are ambiguous but the defendant honestly and without recklessness believes that they constitute an opinion or idea.   We hold, therefore, that in order to find the requisite malice from the publication of ambiguous words which could constitute either fact or opinion, the jury must find not only that the words were reasonably understood in their defamatory, factual sense, but also that the defendant either deliberately cast his statements in an equivocal fashion in the hope of insinuating a defamatory import to the reader, or that he knew or acted in reckless disregard of whether his words would be interpreted by the average reader as defamatory statements of fact.” (Good Government, supra, at p. 684.)

Brierton asserts the brochure is ambiguous in the sense that while the statements may be factually correct, i.e., they derive directly from and accurately reflect court and grand jury terminology, the defamatory inference drawn from them results in ambiguity, raising a triable issue of fact under Good Government.

Golding's brochure statements accurately reflect the phraseology used in the court orders and the grand jury letter. Unlike Good Government, the statements are not ambiguous.   They are clear and direct.   They are not presented as opinions.   They are wholly factual.   While a reasonable reader may draw a defamatory inference from the statements as presented in the brochure, Golding's subjective intent in mailing the hit piece to persuade the electorate to vote for her may not be considered under Reader's Digest.   There, Reader's Digest published an article describing how the publishers of a newspaper received the Pulitzer Prize for a series of reports critical of Synanon. The author of the magazine article relied on writings and conversations with asociology professor and the Pulitzer Prize winners.   The writer did not contact Synanon.   The court, citing New York Times and St. Amant v. Thompson (1968) 390 U.S. 727, held:

“Four years later, in St. Amant v. Thompson, supra, 390 U.S. 727, the high court sought to clarify the constitutional standard. First, it explained, ‘reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing.   There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.   Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice.’ (P. 731 ․)

“The quoted language establishes a subjective test, under which the defendant's actual belief concerning the truthfulness of the publication is the crucial issue. [Citation.] This test directs attention to the ‘defendant's attitude toward the truth or falsity of the material published ․ [not) the defendant's attitude toward the plaintiff.’  [Citation.]” (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d 244, 256-257, fn. omitted.)

Reader's Digest (at pp. 257-258) points out actual malice can be proven by circumstantial evidence such as failure to investigate, anger and hostility toward the defendant or reliance on sources known to be unreliable or biased against the plaintiff.

We conclude Reader's Digest is dispositive of the actual malice issue.   The Berlins' complaints about the conservatorship triggered the court appointment of attorney Allen and his report of the purchase of personalty by the broker and appraiser retained by PPS to sell the property.   The appearance of the Berlins at the hearing on the sale of the residence, the court refusal to confirm the sale, the subsequent removal of PPS as conservator-all constitute inquiries independent of Golding and resulted in court actions reflected in court proceedings from which no appeals were taken.   The grand jury letter reflects district attorney inquiries into the conservatorship, the conclusion evidence was insufficient to warrant criminal charges and the establishment of policy not to appoint private conservators.   Golding was not involved in any of these matters.   For all we know, she first learned of trust violations and improprieties when Brierton broached them at the city council hearing on the appointment to the vacant seat.

Brierton did not produce clear and convincing evidence at the summary judgment hearing on actual malice.   The record demonstrates the inquiries into the conservatorship proceedings were done by others than Golding and the results were matters of public record.   Golding's investigation of those records produced accurate statements from them.   Her sources were thus reliable and did not reflect bias against Brierton.   The statements were not false nor made with reckless disregard of truth or falsity.

Inferences, innocent or defamatory, are drawn by people who read the brochure.  Reader's Digest holds Golding's attitude toward Brierton is not to be considered in applying the test of her belief in the truth or falsity of the statements.   It necessarily follows that a defamatory inference drawn by a reasonable reader from the true and correct phrasing and words in the statements cannot support a finding of actual malice imputed to the publisher of the statements.   The drawing of the inference, innocent or defamatory, in these circumstances, is a function of the reader of the unambiguous matter.   Brierton is the victim of a vicious truth.9  The summary judgment must be affirmed.

VIII

The trial court granted Golding $26,000 in attorney fees under Code of Civil Procedure section 1021.7:

“In any action for damages arising out of the performance of a peace officer's duties, brought against a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2 of the Penal Code, or against a public entity employing a peace officer or in an action for libel or slander brought pursuant to Section 45 or 46 of the civil Code, the court may, in its discretion, award reasonable attorney's fees to the defendant or defendants as part of the costs, upon a finding by the court that the action was not filed or maintained in good faith and with reasonable cause.”

The court found Brierton's action was not filed or maintained in good faith and with reasonable cause.   Golding and Brierton argue at length about the applicability of the section to libel cases not involving peace officers.   We need not reach that issue as we conclude the court abused its discretion in finding the action was not filed or maintained in good faith and with reasonable cause.

Our opinion decides section 47 privilege issues which have evaded court resolution over the years and analyzes principles set out in Good Government and Reader's Digest in the circumstances here presented.   Reasonable lawyers could not conclude Brierton filed or maintained the case without good faith or reasonable cause. (In re Marriage of Flaherty (1982) 31 Cal.3d 637.)

Golding's request for sanctions for filing a frivolous appeal is denied.

Summary judgment affirmed.   Award of attorney fees reversed.   Each party to bear his, her or its costs on appeal.

I concur with Justice Butler's opinion.   I write separately only to note what I believe is implicit in Justice Butler's analysis:  the protection New York Times Company v. Sullivan (1964) 376 U.S. 254 [84 S.Ct. 710], and its progeny provide to the public discourse of public issues has largely supplanted the narrower shield set forth in civil Code section 47, subdivisions (4) and (5).   Although one may someday occur, it is difficult to imagine a case where a statement which is unprotected by the Constitution is nonetheless privileged under section 47, subdivisions (4) and (5). (See, e.g., Weingarten v. Block (1980) 102 Cal.App.3d 129, 148;  Grillo v. Smith (1983) 144 Cal.App.3d 868, 873 [fair and true report of known falsehood in public proceeding protected by both statute and Constitution].)

FOOTNOTES

1.   Brierton controlled the San Diego office of PPS and in the proceedings below accepted responsibility for any PPS breach of duty as conservator.   We thus attribute PPS activities to Brierton.

2.   The brochure is attached as addendum 1 to this opinion.

3.   Marshall and William Berlin settled with Brierton and PPS. Smoot's demurrer was sustained and she was dismissed from the lawsuit.   Golding and Gorton are the remaining defendants.

4.   As the libel and slander counts present the same issues in Golding's and Gorton's separate appeals which we consolidated, for brevity we include Gorton when we use Golding's name.

FN5. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”.  FN5. All statutory references are to the Civil Code unless otherwise specified.   When referring to statutory subparts we omit repetition of the word “subdivision.”

6.   We take judicial notice of the 1987 pre-presidential primary activities of announced candidates for the Democratic nomination and the intense media interest in their personal lives.   A Bimini boat trip with nonmarital companionship and an overnight dalliance in the company of a lady other than his wife doomed the prospects of a frontrunner.   Appropriation of the eloquence of others and upgrading of academic standing dashed the hopes of a strong contender.   Indeed, admitted marijuana use in his salad years forced withdrawal from 1987 confirmation proceedings of a United States Supreme Court nominee.

7.   Golding cites Tschirky v. Superior Court (1981) 124 Cal.App.3d 534 as authority for her claim of this privilege. There, a candidate for office published an advertisement to the effect the business agent for a union asked him to suport Caesar Chavez and for his failure so to do, the union endorsed his opponent.   The business agent sued in libel.   The court directed a demurrer be sustained without leave to amend, noting the complaint failed to plead actual malice as required under section 47(3).   Without analysis or extended discussion, the court observed the advertisement was entitled to what it called the “fair comment privilege” under section 47(3).   We decline to follow Tschirky, finding as we do Rancho La Costa and the authorities cited in that case to be persuasive with respect to the scope of, and the meaning of, the privilege.

8.   We are reminded of the old story-the captain entered in the ship's log the sentence, “The mate was drunk tonight.”   The mate made an entry, “The captain was sober today.”

9.   The comment derives from newspaper accounts of the release of documents demonstrating a candidate in the 1987 pre-primary Democratic presidential nomination plagiarized campaign speeches and misrepresented academic achievements.

BUTLER, Acting Presiding Justice.

THAXTON,* J., concur.