FREEDOM NEWSPAPERS INC v. SCHMIDT (1990)

OPINION

In a libel action, does a demand for retraction served upon the editor satisfy Civil Code section 48a, which directs the demand be made upon the publisher?   We hold it does not.

I

Calvin Schmidt, a municipal court judge, sued petitioner Freedom Newspapers, doing business as The Orange County Register, and two of its news reporters (collectively “Freedom”) for libel, alleging he was defamed in three separate newspaper articles which were published on October 9, 1988, December 14, 1988, and March 9, 1989.   On March 13, 1989, counsel for Schmidt sent a letter to N. Christian Anderson, editor of the Register, at the newspaper's main office in Santa Ana.   The letter referred to a specific alleged misstatement in the March 9 article and demanded “an accurate story [be] written.”   The complaint alleges this retraction demand was ignored and no correction was made.

In challenges to the complaint, Freedom highlighted Schmidt's failure to make the retraction demand on the publisher, as required by Civil Code section 48a when seeking general or punitive damages.   The second amended complaint seeks to remedy that defect by alleging that the editor of the Register, who was served with the retraction demand, “had actual authority by delegation from the publisher, or by a pattern or practice developed over a period of years, to determine on behalf of The Register whether and how to respond to requests for corrections ․ and to make corrections if he determines to do so.”

Freedom unsuccessfully moved to strike the claims for general damages and punitive damages because of the failure to demand a retraction from the publisher.   Freedom then sought extraordinary relief from this court.   We stayed all trial court proceedings and issued an alternative writ.

II

Civil Code section 48a provides, in pertinent part:  “[¶]  1. Special damages;  notice and demand for correction.   In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast, as hereinafter provided.   Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected.   Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.”

Despite the clear language of Civil Code section 48a which requires the demand for retraction be served on the publisher, Schmidt argues he substantially complied by serving the Register's editor, because the publisher had delegated his retraction decisions to the editor.¹  Portions of the editor's deposition testimony, submitted in opposition to the motion to strike, do substantiate that factual assertion to some extent.   As a matter of practice, the Register's editor often decides whether to publish a correction or retraction.   The editor acknowledged, however, that the ultimate responsibility remains with the publisher.

This court has previously announced service on the editor is ineffective, although in dicta.  (Leeb v. DeLong (1988) 198 Cal.App.3d 47, 52, fn. 2, 243 Cal.Rptr. 494.)   We recognized that “[a]n editor's power is derivative of, and entirely subordinate to, that of the publisher.”  (Id., at p. 52, 243 Cal.Rptr. 494.)  Leeb cited Farr v. Bramblett (1955) 132 Cal.App.2d 36, 44, 281 P.2d 372, disapproved on another point in Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 114, footnote 4, 77 Cal.Rptr. 243, 453 P.2d 747.  Farr also stated service on editors was ineffective, again only in dicta, but petitioner's authorities similarly do not address the question squarely.

One federal trial court decision, in dicta, stated service on the editor is sufficient.  (Dowd v. Calabrese (1984) 589 F.Supp. 1206.)   The court's statement that service on the editor was sufficient under Civil Code section 48a was rendered meaningless by its conclusion California law did not apply.   We respectfully disagree with the Dowd court's comment that service on the publisher is a “ ‘technical barricade[ ]’ ” which should not be condoned.   (Id., at p. 1212.)   Similarly, we do not agree with Sargent v. National Broadcasting Company, Inc. (1955) 136 F.Supp. 560, to the extent it suggests “substantial compliance” with the statute is sufficient.  (Id., at p. 565.)

As explained in Kapellas v. Kofman (1969) 1 Cal.3d 20, 81 Cal.Rptr. 360, 459 P.2d 912, the “Legislature enacted Civil Code section 48a to encourage a more active press by means of an increased insulation of newspapers from liability arising from erroneous published statements.   The statute represents a significant change from common law libel, which at one time permitted a plaintiff libelled even by an innocent misstatement to recover general damages without proving actual injury.  [Citations.]”  (Id., at p. 30, 81 Cal.Rptr. 360, 459 P.2d 912, fns. omitted.)

The Kapellas court considered the type of notice required in deciding whether the retraction demand at issue was specific enough.   It implied a letter was sufficient without formal proof of service,² recognizing “that letters written to request retraction of a statement do not compose formal legal complaints;  ․   In enacting [Civil Code] section 48a the Legislature intended to afford publishers an opportunity to correct committed errors before subjecting them to liability;  it did not intend to build technical barricades to recovery by the individual who had given notice sufficient to advise a reasonable publisher acting in good faith of the claimed error.”  (Kapellas v. Kofman, supra, 1 Cal.3d at p. 31, 81 Cal.Rptr. 360, 459 P.2d 912.)

Schmidt asserts requiring service on a publisher, who has delegated retraction decision-making to an editor, is precisely the type of technical barrier we should not allow.   We disagree.   As explained, the statute was enacted to encourage a free and active press.   It unambiguously requires the demand be made on the publisher, the person ultimately responsible monetarily.   And if the demand be mistakenly made on a subordinate, the publisher need not worry about a lawsuit for general or punitive damages.

In practice, the Register has a policy of forwarding retraction demands, regardless of addressee, to legal counsel for advice, but the final decision is made by the newspaper.   In any event, the actual decision-maker is irrelevant.   The key question is not who decides whether to make a correction, but who pays the judgment if one is not made.

It matters not that the publisher of the Register may delegate the retraction decision to a subordinate.   If he does so he risks liability for a decision he did not make.   That does not, however, obviate the need to require notice to the publisher.   The language of the statute is clear.   The demand may be ignored without legal consequence unless it is served upon the publisher.   Indeed, it would be grossly unfair to remove that shield, after the fact, in this case.³

Failure to serve his retraction demand on the publisher is fatal to Schmidt's claim for general and punitive damages.   The trial court erred in denying petitioner's motion to strike those allegations from the complaint.⁴

Let a peremptory writ of mandate issue directing the superior court to vacate its order denying petitioner's motion to strike and to enter a new and different order granting that motion.   The alternative writ is discharged and the previously issued stay is dissolved.

FOOTNOTES

1.   Curiously, we do not know if Schmidt knew of this claimed delegation when the retraction demand was sent.   He does suggest the Register misleads the public by publishing an open invitation to contact its “ombudsman” regarding errors, but Schmidt did not make his demand on the ombudsman either.

2.   Petitioner does claim the letter was not formally “served.”   It did not raise that argument in the trial court, however.

3.   We would not be surprised if counsel, upon reading the particular demand at issue here, advised the petitioners that Schmidt had failed to comply with Civil Code section 48a and therefore would be limited to claiming special damages.

4.   We note there are no allegations to support the special damages requested in the prayer.   But that is a pleading problem which is not presently before this court.   We also note that no demand was ever made, let alone within 20 days, to retract the alleged defamatory statements in the two earlier articles described in the second amended complaint.   Any claim for damages based on them is obviously barred.

WALLIN, Acting Presiding Justice.

CROSBY and MOORE, JJ., concur.