WEISS v. MAYDA

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

Jae Levine WEISS, Plaintiff and Appellant, v. Chris MAYDA, et al., Defendants and Respondents.

No. B071255.

Decided: December 29, 1993

Plaintiff Jae Levine Weiss appeals from the dismissal entered by the court after it had sustained demurrers by all defendants in her action for damages for libel and intentional infliction of emotional distress against members of the student editorial board and publishers of the Valley Star, the newspaper of Los Angeles Valley College.   She contends:

“[I.] The statements were ‘of and concerning’ appellant.  [II.] The trial court erroneously concluded that libel cannot be by innuendo.  [III.] The allegedly defamatory statements were false.  [IV.] Each of the 12 respondents, properly alleged to be publishers, could rightfully be sued for having published the offensive materials.  [V.] The court abused its discretion by refusing appellant leave to amend, despite the clear showing in her opposition papers that she was in possession of the necessary facts to cure any perceived defects in the First Amended Complaint.”

Weiss alleged she had been defamed based upon publication of the following two paragraphs, included in two articles on the front page of the Valley Star on January 16, 1992 (the articles are attached to this opinion as exhibits “A” and “B”):

“Some staff members objected to Mayda's appointment and resigned from the paper, leaving her with the difficult task of replacing them.”

“The new staff of the Valley Star faced difficulties from the voting process to the process of putting out the first paper.   These difficulties came in part from the lack of support from the past staff and lack of technical support.”

Respondents demurred to Weiss's complaint, asserting that the statements were (1) not of and concerning the plaintiff;  (2) not defamatory;  (3) not false;  and (4) not published by all of the defendants.   The court sustained the demurrers and afforded Weiss leave to amend.

Weiss filed a first amended complaint, again alleging libel based upon the same two paragraphs.   Respondents demurred on the same grounds asserted earlier.   The court sustained the demurrers without leave to amend “pursuant to grounds in moving papers.”   This appeal followed.   Respondents request sanctions for appellant's filing a frivolous appeal.

Weiss's first contention is meritorious.   To be actionable as libel, the statements must be “of and concerning” plaintiff.  (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042.)   The statement must individually name the plaintiff or include a reference which reasonably is understood to apply to the plaintiff.

Weiss is not specifically named in the two articles.   The statements refer to “some staff members” who “objected to Mayda's appointment and resigned.”   The reference is sufficient, however, “if from the evidence the jury can infer that the defamatory statement applies to the plaintiff․  [Or,] if the publication points to the plaintiff by description or circumstances tending to identify him.”  (DiGiorgio Fruit Corp. v. AFL-CIO (1963) 215 Cal.App.2d 560, 569-570.)

Respondents sought judicial notice below of four Valley Star articles, published January 9, 1992, in which Weiss and three other staff members criticized Mayda's appointment.   Weiss's article (attached as exhibit “C” to this opinion) also states, “a grave injustice has occurred;  an injustice so severe that I feel I must leave Valley College's journalism program, and will be completing my education at another school.  [¶] My sense of outrage will not permit me to continue to participate in a department that has been corrupted through unfair bias and divisiveness.”   A reader of the Valley Star would reasonably believe the articles published the following week, referring to staff members who had objected to the appointment and resigned, to refer to Weiss and the other three, who had made similar vows.   Such a group is not too large to allow identification with the individuals.  (See Noral v. Hearst Publications, Inc. (1940) 40 Cal.App.2d 348, 350-351.)

Appellant's second contention, however, lacks merit.  “Libel is a false and unprivileged publication ․ 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.”  (Civ.Code, § 45.)   If the statement is defamatory on its face, it is actionable without proof of special damage.   But if it requires an explanation of the surrounding circumstances (the “innuendo”) to make its meaning clear, it is not actionable without pleading and proof of special damages.  (5 Witkin, Summary of Cal.Law (9th ed. 1988) § 481, p. 565.)

While the trial court's statement at the hearing on respondents' demurrers may have been technically incorrect,1 it is clear the court was applying the correct standard, whether the language could reasonably be understood to bear a defamatory meaning.  (See Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal.App.3d 377, 386.)   We agree with the trial court that it could not.

“Mere expressions of opinion or severe criticism are not libelous if they clearly go only to the merits or demerits of a condition, cause or controversy which is under public scrutiny, even though they may adversely reflect upon the public activities or fitness for office of individuals who are intimately connected with the principal object of the attack.”  (Howard v. Southern Cal. etc. Newspapers (1950) 95 Cal.App.2d 580, 584 (disapproved on another point in Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 114);  and see Forsher v. Bugliosi (1980) 26 Cal.3d 792, 805-806:  “In determining the defamatory nature of written material, the fact that some person might, with extra sensitive perception, understand such a meaning cannot compel this court to establish liability at so low a threshold.”)   In a controversy between parties, argumentative language by one concerning the other's position does not amount to libel.  (Broadcast Co. v. Times-Mirror Co. (1936) 14 Cal.App.2d 120, 124.)

Weiss alleged that “[i]mplicit in the articles is an accusation that the alleged resignation and refusal by Plaintiff was a violation of journalistic ethics and Plaintiff's moral obligations to both the newspaper and to the new staff and the editor-in-chief.”   While it is clear that the articles (exhibits “A” and “B”) could carry an implied criticism of Weiss's behavior, in the context of the public controversy then being waged in the student newspaper such a criticism cannot be considered defamatory.   That fundamental defect was one which Weiss was not capable of curing (Weiss's fourth contention).   As to the fairness of characterizing Weiss's action as a “resignation” (Weiss's third contention), exhibit C states emphatically that Weiss would not, in any event, have continued in the department.

In light of the preceding discussion, we need not reach Weiss's remaining contentions.

Respondents request that we sanction appellant for prosecuting a frivolous appeal.  (Code Civ.Proc., § 907;  Cal.Rules of Court, rule 26(a).)   While that request has great merit, nonetheless appellants have a right to present any arguable issue on appeal, even if it is extremely unlikely to prevail.   (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 645-651.)

The judgment is affirmed.

EXHIBIT A

Controversy Builds Character

By Karen WetmoreEntertainment Editor

Rarely does anything intimidate Chris Mayda.   Not even the ripples of controversy which followed her election as Valley Star's new Editor-In-Chief could curtail the moxy of this ambitious young woman.

Some staff members objected to Mayda's appointment and resigned from the paper, leaving her with the difficult task of replacing them.

“Chris was selected from a group of highly qualified applicants,” says Roger Graham, chairperson of Journalism, Photography and the Media Arts Department.   “I'm looking forward to her leadership developing an outstanding Star staff and an excellent publication.”

With five years writing experience-including study in New York and Los Angeles-Mayda promises to bring fresh ideas to the paper and its audience.

“I want to raise a lot of questions and excitement,” says Mayda, who quickly learned which stories worked and which didn't while staff writer in the fall semester of '91.

“I want to cover interesting subjects and look at them from a different angle ․ one pertinent to the school.”

Topics of human interest rank highest on her list, particularly stories about people on campus.  “Everybody has something extraordinary in their life.   Finding that is interesting.”

Originally an art major at Otis-Parsons Art School, Mayda's passion for writing emerged when words began to reveal themselves in her paintings.   “Actual words and phrases showed up in my paintings,” she recalls.  “I decided I'd better do something about it.”

The something she chose to do led her to New York's The New School where she explored fiction writing, before returning to Los Angeles to study screenwriting at UCLA.   But it wasn't until her enrollment in four journalism classes at LAVC that the spark burst into flame.

Becoming a staff writer and regular contributor to the Valley Star, Mayda lived and breathed through every word she wrote.   She absorbed the essence of life on this campus and was saddened by the voices left unheard.   Those voices touched Mayda deeply and she plans to provide a forum in which they may resound.  “I'm gathering voices to be heard in the paper,” she says.  “Not just my own voice, but other voices which have not been heard before.”

Staff members like Opinion Editor, Eva Yelloz, respect Mayda's commitment to these voices.   Yelloz' expectations of Mayda include “diversity, coverage of all departments, campus events and club events.”

Complete coverage is foremost on Mayda's mind.  “When the Daily News covers something on our own campus and we've missed it, it's upsetting,” says Mayda.

Backed by an energetic staff that describes her as persevering, strong, focused and talented, Mayda appears equipped to achieve the goals she has set for herself.   She is prepared to leap undaunted into controversy should any issue require it, strengthening not only her own character, but the campus' as well.

EXHIBIT B

Staff obstacles

The new staff of the Valley Star faced difficulties from the voting process to the process of putting out the first paper.   These difficulties came in part from the lack of support from the past staff and lack of technical support.

Undaunted by the problems facing the staff, they pulled together with a terrific pride and spirit to overcome the obstacles facing them.

In the past the Valley Star has been published by Compugraphic machines that are now almost 20 years old.   As the current staff was unable to gather the necessary manpower in order to publish this edition of the paper they decided in a unanimous effort to use a desktop publishing system.   This is the first issue of the Valley Star done on computer.   The software is Ventura Publisher.   The printer is a Hewlett Packard LaserJet III.

EXHIBIT C

Ethics on the ropes and losing

By JAE LEVINE WEISSStaff Writer

As a staff writer on the Valley Star, I have had a forum from which I was able to share my concerns about inequity and injustice.   I have been given virtually free reign to express my outrage on topics concerning human dignity in a way that might encourage others to take action.

Ironically, at the Valley Star, the very place where the exposure of wrongs was nurtured, a grave injustice has occurred;  an injustice so severe that I feel I must leave Valley College's journalism program, and will be completing my education at another school.

My sense of outrage will not permit me to continue to participate in a department that has been corrupted through unfair bias and divisiveness.

Many on the Star staff share my anger.   The wounded feelings of everyone involved in this scandal have gone unaddressed by most of the faculty.

As journalists, just as we would report a controversy affecting students' educations if it occurred on any other part of the campus, we feel compelled to share our outrage with our readers in this, the final issue produced by this semester's Valley Star staff.

Anna Villa is a young woman who has worked earnestly for the past seven years to become a career journalist.

Through high school, where she was the editor in chief of the newspaper, to Valley where she has been a staff writer and page editor for several semesters, Villa's flexibility, determination, congeniality, dependability and hard work made her the optimum candidate for next semester's Editor in Chief position.

Chris Mayda, who was also interested in the job, is a first semester journalism student who has yet to be on the staff of the Star.

With the unswerving support of Tony Cifarelli, the Star's faculty advisor, Mayda has campaigned tirelessly to become nothing less than Editor in Chief this next semester.

Mayda has never even attended any of the paper's weekly meetings where she might have observed the methods used to critique and improve the paper, to understand procedures and policies, or to develop a rapport with the returning students who would be working under her.

Mayda's appointment was made by a faculty committee over the objection of virtually the entire student staff.   The only justification offered by Roger Graham, department chair, for the faculty's selection of Mayda as next semester's Editor in Chief, was that Mayda is “planning to transfer to UCLA (which has no undergraduate journalism program) in the fall.”

It seems the faculty's rationale for their unpopular selection is that they did not want to deprive Mayda of her last and only chance to hold the position, despite her apparent lack of qualifications.

Her sponsor, Cifarelli, believes our collective anger is due to the fact that we are, “unwilling to accept true brilliance.”

Although Mayda has no experience whatsoever on the Valley Star, she has one powerful point in her favor.   She appears to be a personal friend of Cifarelli.

This, we were told, was in no way a factor in the decision to bypass Villa, a student who had diligently worked her way up and had earned not only the respect of the other staff members, but who more than amply possesses all the qualifications to do the job.

Cifarelli took an aggressive pro-Mayda stand from the very beginning.   In order to block any competition which might endanger her appointment as Editor in Chief, other applicants were put off, turned away, or were met with outright hostility.

In the case of Anna Villa, the staff was initially informed that she had lost her chance to be interviewed because her application had never been turned in.   This later turned out to be completely untrue.

The interviews were originally scheduled during the week that Villa was out of the country.   After her application was begrudgingly acknowledged by Cifarelli, Villa was given a five-minute interview before the faculty committee.

It seems clear to many of us that serious consideration of applicants other than Mayda had been dismissed long before their interviews had ever taken place.

What is the lesson students in this occupational program are being taught about professional conduct in the business world?

That hard work will be rewarded by rejection in deference to personal relationships?

That the will of the majority will be overridden by the personal agenda of the powerful?

That fairness has no place in the real world?

That deception and corruption reap rewards and that honesty just doesn't pay?

That it is who you know not what you know that really counts?

That your mentors will ultimately betray you?

As a result of this experience, many disillusioned staff members have decided to abandon their career goals or, like me, will be pursuing those goals elsewhere.   Few good students are remaining behind.

The entire department is in chaos.   I wish Ms. Mayda much luck on her new job.   She will need it.

I am grievously disappointed in all of the journalism instructors who colluded to create such inequity.   All of us had looked up to our advisors for encouragement and guidance.

It is impossible for me to remain part of a department whose ethics appear to be so easily contaminated.

During my four semesters as a journalism major, I have learned much from my instructors.   Many important techniques and much information has been imparted, providing me with invaluable knowledge to prepare me for my new career.

But I have learned something far beyond sentence structure and news reporting from them as well.   I have affirmed something about myself that I hope is true of others.

I have learned that I cannot voice my anger at corruption without standing firmly behind my words.   I have learned that my values are stronger than my fears.

I have also learned that injustice can be found everywhere, even in places I can least afford to find it.   I now know that when that happens, I have to expose it, despite the personal cost.   To do less would make me a hypocrite.

I have learned that as an individual, you either stand for justice, or you do not.

That is why, despite the risk, I am now taking a stand for human dignity, encouraging others to take action after I am gone.

Cifarelli believes I am “burning my bridges” behind me.   If this is so then I must remember there are some places one should never return.

FOOTNOTES

1.   The court stated, “I don't believe you can show you can be liable for innuendo.   You have to have something in a statement that [in] a reasonable person can suggest-can make a decision that there is a defamatory meaning in it.   You can't do it by innuendo.”

GATES, Associate Justice.

BOREN, P.J., and NOTT, J., concur.