BLACKWELL v. CARSON

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

Richard BLACKWELL, also known as, Mr. Blackwell, an individual, et al., Plaintiffs and Appellants, v. Johnny CARSON, an individual, et al., Defendants and Respondents.

No. B070547.

Decided: April 04, 1994

Gary L. Bostwick, Santa Monica, for plaintiffs and appellants. Hill, Wynne, Troop & Meisinger, Ronald D. Reynolds and David A. Householder, Los Angeles, for defendants and respondents.

Fashion maven Richard Blackwell (Mr. Blackwell) sued comedian Johnny Carson (Carson) for defamation based on a remark that Carson attributed to Mr. Blackwell during Carson's monologue on an episode of the “Tonight Show.” 1  According to Carson, Mr. Blackwell said of Mother Teresa, “Miss Nerdy Nun is a fashion no-no.”   Mr. Blackwell's suit proved unfashionable and his case was dismissed after Carson's demurrer was sustained without leave to amend.   Mr. Blackwell appeals.

The relevant allegations of the complaint, deemed for purposes of review to be true (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 877), are as follows:

“15. On or about January 15, 1992, defendants, and each of them, published a defamatory broadcast on ‘The Tonight Show’ (‘the BROADCAST’) of and concerning Mr. Blackwell.

“16. The BROADCAST included a false and unprivileged publication which exposed Mr. Blackwell to hatred, contempt, ridicule or obloquy, which had a tendency to cause Mr. Blackwell to be shunned or avoided, and had a tendency to injure him in his reputation and business.   The false and unprivileged publication was the following statement [by Carson] referring to Mr. Blackwell:

“ ‘Did you see what he said about Mother Teresa?  “Miss nerdy nun is a fashion no-no.”   Come on, now, that's just too much.   That's right, that's Mr. Blackwell, that's the guy I'm talking about.’

“17. Mr. Blackwell did not make any statement about Mother Teresa regarding fashion or dress.   Defendants, and each of them, knew that the statement set forth in paragraph 16 was a lie when it was broadcast.

“18. On February 13, 1992, Mr. Blackwell, through his counsel, caused a written demand for correction and retraction to be delivered to each and every defendant.   Shortly thereafter, Carson Productions Group, through counsel, communicated in writing that said defendant declined to broadcast a correction or retraction.   No other defendant replied.”

The complaint alleged two causes of action, for defamation and for trade libel.

Carson demurred to the complaint.   He contended, inter alia, that the statement was not reasonably susceptible of a defamatory meaning.   The trial court agreed:  “The communication in question could not have been reasonably understood in a defamatory sense by those who heard it.  [¶]․  [¶]  The surrounding circumstances, the humorous context, and the jocular reference to plaintiff and to other public figures throughout the monologue leads this Court to conclude that defendant Carson's attribution of the remarks (referring to Mother Teresa) ‘Miss Nerdy Nun is a fashion no-no’, to plaintiff, was not defamatory as a matter of law.”

Thereafter, Mr. Blackwell filed a motion to disqualify the trial judge, which motion was denied.   He then moved for reconsideration on the grounds of newly-discovered evidence, to wit, that the judge's daughter was married to the son of Carson's lawyer and agent, albeit not his lawyer of record on this case.   The motion for reconsideration was also denied.

This appeal ensued.   We affirm.

I

We note, preliminarily, that the appeal is taken from the order sustaining the demurrer.   We repeat the litany that “[a]n order sustaining a demurrer without leave to amend is not appealable;  any appeal must be taken from the subsequent dismissal of the action.  [Citations.]”  (Yancey v. Fink (1991) 226 Cal.App.3d 1334, 1342.)   Mr. Blackwell's failure to obtain an appealable order makes this appeal dismissable.   Knowing that this would only delay and not dispose of this cause, we elect to deem the minute order sustaining the demurrer to be an order of dismissal and the appeal to be taken from that order.  (Dinosaur Development, Inc. v. White (1989) 216 Cal.App.3d 1310, 1313, fn. 1.)

II

The trial court found that the “Nerdy Nun” comment was not defamatory as a matter of law because, from the circumstances in which it was made, including “the humorous context, and the jocular reference” to Mr. Blackwell, it “could not have been reasonably understood in a defamatory sense by those who heard it.”   We agree.

“The question whether a statement is defamatory can be reached on a demurrer as a matter of law.  [Citations.]”  (Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 551.)   The court must ask “whether the communication in question could reasonably be understood in a defamatory sense by those who received it.  [Citation.]”  (Id. at p. 554.)   To make this determination, “[t]he court examines the communication in light of the context in which it was published.   The communication's meaning must be considered in reference to relevant factors, such as the occasion of the utterance, the persons addressed, the purpose to be served, and ‘all of the circumstances attending the publication.’  [Citation.]”  (Emphasis omitted.)  (Jensen v. Hewlett-Packard Co. (1993) 14 Cal.App.4th 958, 970;  San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 659.)

A review of the circumstances in which Carson made his remark leads us to conclude, as did the trial court, that as a matter of law the statement could not reasonably have been understood in a defamatory sense.   The “Nerdy Nun” comment was part of the regularly featured comic monologue segment of the variety show that Carson hosted.2  In his monologue he typically took current events and public figures and poked fun at them.   It was clear that the monologue, though it mixed fact with fiction, was hyperbolic and humorous in intention rather than providing serious social or political commentary.   Indeed, as to Mr. Blackwell, Carson said, “Well, since we're finishing this year this is the last chance I have to do jokes about Mr. Blackwell.”   Furthermore, Carson made other remarks about Mr. Blackwell during his monologue (e.g., “He makes Richard Simmons look like the Terminator”) that even Mr. Blackwell concedes are “rhetorical hyperbole or opinion” and protected by the First Amendment.   Yet despite this concession, Mr. Blackwell's action is premised upon taking the one remark of which he complains out of the satiric and humorous context in which it occurred and, because it was false, concluding that it was defamatory.   Legally, this is putting the cart before the horse;  the issue is not whether the comment was true or false but whether it could reasonably have been understood to be defamatory.  (Polygram Records, Inc. v. Superior Court, supra, 170 Cal.App.3d at p. 554.)   Carson's ascription to Mr. Blackwell of a fashion critique of the Nobel Peace Prize winning Mother Teresa is no less satiric and hyperbolic than his characterization of Mr. Blackwell as “kind of like Don Rickles with PMS.”   It could not possibly have been understood as anything other than a joke by those who heard it and, as such, is not legally actionable.  (Polygram Records, Inc. v. Superior Court, supra, at p. 551.)

Nor is our conclusion affected by the cases cited by Mr. Blackwell, including Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496 [111 S.Ct. 2419, 115 L.Ed.2d 447], none of which is remotely apposite of the instant case either on its facts or points of law.

Finally, Mr. Blackwell challenges an order denying his motion to disqualify the trial judge.   Inasmuch as we conclude that this action was properly dismissed as a matter of law based on our own independent review of the action and the relevant law, it is unnecessary to reach the disqualification issue.

The judgment of dismissal is affirmed.   Respondents to have costs on appeal.

FOOTNOTES

1.   Along with Mr. Blackwell, the action was brought on behalf of R.L. Spencer, Inc., and named as defendants along with Carson are Carson Productions Group, National Broadcasting Company and NBC Subsidiary (KNBC-TV), Inc.   For convenience, our reference to Mr. Blackwell and Carson include all plaintiffs and all defendants.

2.   Carson asks that we take judicial notice of the videotape of Carson's monologue on the “Tonight Show” from January 15, 1992.   We grant the request.  (Evid.Code, § 452, subd. (h).)

ARLEIGH M. WOODS, Presiding Justice.

HASTINGS, J. and KLEIN (Brett) *, JJ.