FOREMAN v. LESHER COMMUNICATIONS INC (1993)

Michael Foreman and Abdul Hussein filed a complaint against Lesher Communications, Inc., publisher of The Valley Times, seeking $500,000 in general damages on the theories of libel on its face, invasion of privacy, and infliction of emotional distress.   The superior court entered summary judgment in favor of Lesher.   Foreman and Hussein appeal.

BACKGROUND

Donald Fuller and his son, Scott Fuller, were charged in 1984 with the assault and battery of Foreman and Hussein.   Donald Fuller was the port agent for a maritime union.   Foreman and Hussein were nonunion deckhands.   The charges grew out of a labor dispute.   On March 26, 1986, Fuller was convicted in the San Francisco Superior Court of misdemeanor battery of Hussein and sentenced to 180 days in county jail.   He was also convicted of felonious assault on Foreman and sentenced to three years probation on condition he serve one year in the county jail.

Two years later, on June 22, 1988, The Valley Times—serving Amador, Livermore and San Ramon valleys—published an article on an electronic monitoring device used in sentencing convicted criminals.   The device is attached to an individual's ankle and causes an alarm to sound if he or she attempts to leave a designated area.   Because of it, such an individual can be confined to his or her home, rather than placed in jail.   Although The Valley Times article focused on the device itself, rather than the persons required to use it, it mentioned one such individual.   As relevant here, it began:

“Burly Donald Fuller, who was found guilty of beating up two drug dealers, is shackled by a plastic anklet that weighs just five ounces.”

“The anklet is an electronic monitoring device that allows him to serve a 120–day sentence without going to jail.”

On July 26, 34 days after publication of this article, appellants delivered to Lesher a “Demand for Retraction of Libelous Publication.”   They informed Lesher that they were the victims of the reported beatings and that they were not, nor had ever been “drug dealers.”   In addition, they pointed out that, contrary to the report that he was serving a 120–day jail sentence, Fuller was in fact serving a 180–day sentence for his attack on Hussein and had appealed from his conviction of felony assault on Foreman.   Appellants claimed that the article was “grossly libelous and false” in stating that the victims were drug dealers and that Fuller was serving a 120–day sentence.   They demanded a retraction and suggested that the published retraction include other facts reflecting badly on Fuller's character.

On August 6, The Valley Times published a “correction,” which stated in full:

“A June 22 article in The Valley Times on a home-detention program incorrectly stated that Donald Fuller was guilty of assaulting two drug dealers.   The victims had never been charged with or convicted of selling drugs.

“The article also inaccurately reported Fuller's sentence for the assault convictions.   On one misdemeanor charge, he is serving 180 days.   In addition, he faces a sentence of one year in jail and three years' probation from a felony conviction.   Fuller is currently appealing the felony conviction.”

Appellants felt the retraction to be inadequate and filed the complaint here at issue alleging, among other things, that they are residents of San Francisco, that The Valley Times is circulated in San Francisco and is read by a great number of persons in the areas in which it is circulated, and that the “publication was made of and concerning [appellants] and was so understood by those who read the publication.”   As noted, they sought general damages in the amount of $500,000.   No special damages were alleged.

DISCUSSION

Lesher argued that summary judgment should be entered on the libel claim for three distinct reasons:  (1) appellants had failed to seek a retraction within the time limits of Civil Code section 48a, and thus were not entitled to general damages;  (2) the libel was not “of and concerning” appellants as a matter of law;  and (3) the publication was not libelous without reference to extrinsic matter, which again precluded appellants from recovering anything other than special damages.   As we find the first of these arguments to dispose of the matter, we need not and do not consider the others.¹  We also agree with Lesher that, having failed to establish elements necessary to an action for libel, appellants also have failed to establish those elements for purposes of their theories of false light and emotional distress.

I.

Libel

Defamation cases are not favored, and the importance our society places on freedom of speech and freedom of the press mandates that it be protected even though such protections may mean that persons who suffer injury from its exercise may go uncompensated.   The relevant principles were stated by our Supreme Court in Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 248, 228 Cal.Rptr. 215, 721 P.2d 97, citing to New York Times Co. v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686:

“The restrictions and limitations on liability for defamatory speech have evolved over many years as courts and legislatures have attempted to balance the interest in reputation against the interest in speech.   The existing balance protects some defamatory statements in recognition that a certain amount of breathing space is necessary to maintain the vitality of the freedoms of speech and press.  [Citation.]   The modern law of defamation has been primarily concerned with determining the point at which potential liability for defamatory speech intolerably dampens the vigor and limits the variety of public debate.

“The fact that a defamatory statement may injure feelings and peace of mind as well as reputation does not lessen the importance of uninhibited, robust, and wide-open public discourse, nor should the protections afforded defamatory statements in the interests of providing a generous zone of lawful speech be abrogated merely because the statement contains a privacy-invading element.  [Citation.]   Courts should proceed very cautiously before upsetting the delicate balance that has developed in the law of defamation between the protection of an individual's interest in redressing injury from published falsehoods, and the protection of society's interest in vigorous debate and free dissemination of the news.”  (Internal quotation marks omitted.)

 These concerns led, among other things, to the enactment of Civil Code section 48a, limiting the damages recoverable for publication of a libel in a newspaper, such as The Valley Times.  (Kapellas v. Kofman (1969) 1 Cal.3d 20, 30, 81 Cal.Rptr. 360, 459 P.2d 912;  and see Werner v. Southern Cal. etc. Newspapers (1950) 35 Cal.2d 121, 216 P.2d 825, passim.)   Section 48a provides, as relevant, “1.   In any action for damages for the publication of a libel in a newspaper, ․ 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 ․ 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.”  (Emphasis added.)

 There is no question but that appellants failed to seek a retraction within 20 days of the publication of The Valley Times article, i.e., within 20 days of the date the public obtained knowledge of it.   They argue, however, that section 48a requires only that retraction have been sought within 20 days of their own personal knowledge of the publication—which presumably occurred sometime later.   Indeed, appellants ignore the possibility that “knowledge” could mean knowledge by the public, arguing that a finding that personal knowledge was not required would render the statutory language meaningless.   No case appears to have determined whether “knowledge” in the context of section 48a means personal, or public, knowledge.   Our analysis of analogous law, however, and of the apparent purpose of the time limitation, convinces us that the better interpretation of section 48a is that the 20–day limitation begins on the date that the public gains knowledge of the alleged libel.

It is settled that the time at which the one-year statute of limitations for libel actions accrues is the date of the first general distribution of the publication to the public.  (Strick v. Superior Court (1983) 143 Cal.App.3d 916, 922, 192 Cal.Rptr. 314;  McGuiness v. Motor Trend Magazine (1982) 129 Cal.App.3d 59, 61, 180 Cal.Rptr. 784;  Belli v. Roberts Brothers Furs (1966) 240 Cal.App.2d 284, 289, 49 Cal.Rptr. 625.)   It has been reasoned that a mass-media publication is for the attention and knowledge of the general public.   It follows that the person commented on, if only in his role as a member of the public, has access to the information on the date of its distribution.   (McGuiness, supra, 129 Cal.App.3d at p. 63, fn. 2, 180 Cal.Rptr. 784.)   The 20–day limitation of section 48a applies only to newspapers and radio broadcasts, i.e., to publications made to the general public.   If the person commented on is deemed to have knowledge of the information on the date of public distribution for purposes of the statute of limitations, it seems reasonable to assume that he or she also should be deemed to have knowledge of the information for purposes of the special limitation of section 48a.

 In addition, while we can conceive of a legislative purpose in having the 20–day period run from the date of publication, we can conceive of no rational reason for having it run from the date of discovery.   It is recognized that section 48a essentially provides that a retraction is a substitute for an award of general damages.  (Werner v. Southern Cal. etc. Newspapers, supra, 35 Cal.2d at p. 126, 216 P.2d 825.)   Thus in upholding section 48a against an equal protection challenge, the Werner court found:  “[I]n balancing the danger of recoveries of excessive general damages against leaving plaintiffs with no effective remedy for injury to their reputations, the Legislature could properly take into consideration the fact that a retraction widely circulated by a newspaper or radio station would have greater effectiveness than a retraction by an individual and could thus class newspapers and radio stations apart.   Now, as far as vindication of character or reputation is concerned, it stands to reason that a full and frank retraction of the false charge, especially if published as widely and substantially to the same readers as was the libel, is usually in fact a more complete redress than a judgment for damages.”  (Id. at p. 133, 216 P.2d 825, internal quotation marks omitted.)   A retraction can act to vindicate character or reputation, however, only if it closely follows the libel and thus corrects the false assertion while that assertion is still in the mind of the public.   A retraction, therefore, can act as a reasonable substitute for damages only if it occurs within a short time of the public distribution of the libel.

In addition, a publisher, such as Lesher, should not be expected to publish a retraction without first investigating the truth of the facts claimed by the party seeking the retraction.   Often, however, an investigation would be of no value unless it occurred while the information was still fresh, i.e., within a short time of the original publication.   Again, it is reasonable to assume that the Legislature intended the 20–day limitation to ensure that the request for retraction closely follows the publication of the libel.

 We can, however, conceive of little reason for requiring that a plaintiff seek retraction within 20 days of his or her personal knowledge of the publication, irrespective of the date of public dissemination of the libel.   Such a limitation would not ensure that the retraction has any positive effect.   It would not ensure that the news agency has the ability to conduct a timely investigation into the relevant facts.   Under appellants' construction, the only effect of such a limitation would be to punish a plaintiff for failing to act quickly.   We think it far more likely that the Legislature intended that news agencies be free of claims for general damages unless they had been given the opportunity to publish a meaningful retraction and had failed to avail themselves of that opportunity.   We further find it noteworthy that the failure to seek a retraction does not preclude a plaintiff from recovering general damages.   He or she can still seek them from the person who made the statement reported by the news service.  (Mercado v. Hoefler (1961) 190 Cal.App.2d 12, 18, 11 Cal.Rptr. 787.)   Again, the evident purpose of section 48a is not to deny recovery to a plaintiff, but to protect news services.

II.

False Light and Emotional Distress

 It is settled that where a claim of false light is, as here, based on the allegedly false nature of the published statements, it is in substance equivalent to a libel claim.   Accordingly, where a cause of action for libel has been stated, a false-light claim on the same facts is superfluous and should be dismissed.  (Fellows v. National Enquirer, Inc., supra, 42 Cal.3d at p. 242, 228 Cal.Rptr. 215, 721 P.2d 97;  Kapellas v. Kofman, supra, 1 Cal.3d at p. 35, fn. 16, 81 Cal.Rptr. 360, 459 P.2d 912.)   Furthermore, a plaintiff will not be permitted to plead around the statutory restrictions on damages for libel by labeling an action as one for false light.  (Fellows, supra, 42 Cal.3d at p. 251, 228 Cal.Rptr. 215, 721 P.2d 97.)   The same principles reasonably apply to prevent a plaintiff from pleading around the libel statutes by claiming entitlement to damages for emotional distress resulting from the publication of a libel.²

 Appellants point out that the theories of false light and emotional distress are not identical to the theory of libel, and that recovery can be had on a theory of false light for “half truths.”   They argue that they sought recovery not only for the false information published in The Valley Times, but for the half truths of the article, which allegedly made Fuller appear to be a “nice guy” and his victims, accordingly, the “real bad guys.”   The point, however, is not that the theories can apply to different situations.   Where, as here, a plaintiff's right to recover requires a balancing of First Amendment interests against an individual's right to redress for injury resulting from a publication, “[t]hat constitutional protection does not depend on the label given the stated cause of action [citation], and no cause of action can claim ․ talismanic immunity from constitutional limitations.  [Citations.]”   (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042–1043, 232 Cal.Rptr. 542, 728 P.2d 1177, internal quotation marks omitted.)   In any event, we can see no reason to adopt a construction of the law which would permit a news service to escape liability for publishing outright falsehoods, but not for publishing half truths.

We conclude that the superior court correctly granted Lesher's motion for summary judgment.   For the same reasons we reject appellants' claim that the superior court erred in failing to grant sanctions for a frivolous motion.

The judgment is affirmed.

FOOTNOTES

1.   We also find it unnecessary to consider either Lesher's motion to strike appellants' reply brief or appellants' request that we make factual determinations contrary to or additional to those made by the trial court.  (Code Civ.Proc., § 909.)   The reply brief attempts to bring in additional evidence that persons in fact believed The Valley Times article to be “of and concerning” them.   As we do not consider this argument, we do not decide if this evidence is properly before us.

2.   The similarity of the theories of recovery has been legislatively recognized.   The Uniform Single Publication Act, Civil Code section 3425.1 et seq. provides:  “No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper․”  (Civ.Code, § 3425.3.)

STEIN, Associate Justice.

STRANKMAN, P.J., and DOSSEE, J., concur.