UNDERWOOD v. CBS INC (1984)

Plaintiff and appellant Agness Underwood (Underwood) appeals the sustaining of general demurrers without leave to amend interposed to the first amended complaint by defendants and respondents (respondents) CBS, Inc.;   Times Books;  Golden West Broadcasters, Inc.;   Hilliard Rose (Rose).

Because the complaint failed to state an action for defamation, civil conspiracy or violation of the right of privacy, we affirm the trial court's ruling.

PROCEDURAL AND FACTUAL BACKGROUND 1

Underwood filed a defamation action arising from three separate incidents.   In the first, Ovid Demaris (Demaris), wrote a biography of Jimmy “The Weasel” Fratianno (Fratianno).   Entitled The Last Mafioso, the book is the rambling remembrances of life in the Mafia by Fratianno.   In the first chapter, Fratianno relates an anecdote about a hoax “pulled off” by reputed gangster Mickey Cohen (Cohen).   Times Book published this book in January of 1981.

The second incident was a CBS broadcast of Sixty Minutes on January 6, 1981.   Hosted by Mike Wallace, this segment featured an interview with Fratianno and Demaris.   A copy of The Last Mafioso was displayed and the alleged Cohen hoax was discussed.

The third set of remarks involved a February 4, 1981, broadcast on Los Angeles Radio Station KMPC during the Hilly Rose program.   Rose interviewed Demaris about The Last Mafioso and the two discussed the Israeli arms hoax allegedly perpetrated by Cohen.

Although the alleged defamation occurred at three separate times, the substance of each was the same and based on the first chapter in the book.²  Fratianno relates that Cohen was often involved in questionable scams.   One in the 1940's involved a fund-raising benefit to buy arms for Israel.   A few months later, after almost $1 million had been donated, Fratianno says that Cohen showed him an article in The [Los Angeles] Herald concerning a ship loaded with arms sinking at sea.   Cohen told Fratianno what a tragedy it is that the ship carrying the arms to Israel had sunk.

Fratianno then recounts Cohen's reputation for money-making schemes, that Cohen was a friend of the then city editor of The Herald, Underwood [in the CBS broadcast she is not mentioned by name], and that Underwood has printed stories for Cohen before.   Fratianno concludes that he believes that there was never any arms bought, there was no ship and that Underwood must have printed the story on Cohen's “sayso,” thus giving Cohen the opportunity to keep the donated money without anyone being the wiser.

The first count of the complaint was against all respondents as joint tortfeasors for defamation—conspiracy.   The second count named Times Books, Fitzhenry and Whiteside Ltd. [the Canadian publishers], Fratianno and Demaris for publication of The Last Mafioso.   The third count sought relief from CBS, Wallace, Fratianno, Demaris for the alleged defamation of Underwood on Sixty Minutes.   The fourth count was lodged against Golden West Broadcasters, KMPC, Rose and Demaris for the allegedly defamatory radio broadcast.   The fifth count included Does 30–40 for alleged defamation for sponsorship of the Sixty Minutes broadcast on CBS.

On March 10, 1982, the trial court sustained the demurrers of Times Books, CBS, Wallace, Golden West Broadcasters and Rose without leave to amend “․ on the ground that each [count] fails to state a cause of action (CCP section 430.10(e)).   The allegations of paragraphs 3, 4 and 5 are not defamatory, and the innuendo allegations are not supported by words of the books or the statements made on either the CBS or KMPC program.   The purported words of paragraphs 3, 4 and 5 are mere opinions, not false statements of fact.  (Okum [sic] v. Superior Court (1981) 29 Cal.3d 442, 450, 175 Cal.Rptr. 157, 629 P.2d 1369) ․  [¶]  B) Demurrers of defendants CBS INC., Golden West Broadcasters, Inc., and Hilliard Rose, is [sic] sustained to the first, third and fourth causes of action without leave to amend on the ground that each fails to state a cause of action (CCP section 430.10(e)).  (See:  Okum v. Sup. Ct., [sic] (1981) 29 Cal.3d 442, 450 [175 Cal.Rptr. 157, 629 P.2d 1369] ) ․”

 It is from this judgment that Underwood appeals.³

CONTENTIONS

Underwood contends that the trial court erred by:  (1) applying the overruled “innocent meaning rule” in finding the three sets of remarks nondefamatory;  (2) finding the alleged defamatory material was opinion when that decision should have been left to the trier of fact at trial;  (3) finding no cause of action for civil conspiracy;  and (4) finding no violation of Underwood's right of privacy.

DISCUSSION

1. Statements of opinions based on disclosed facts are not actionable in a defamation suit.

As a reviewing court, we must analyze Underwood's complaint and the successful demurrers under several principles.  “A judgment based on an order sustaining a general demurrer must be affirmed if any one of the several grounds of demurrer is well taken.  [Citations.]  On the other hand, any particular count which is well pleaded will not be affected by defects in a separate cause of action, so long as inconsistent or antagonistic facts are not pled.  [Citations.]  The complaint must be liberally construed and survives a general demurrer insofar as it states, however inartfully, facts disclosing some right to relief.”   (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 21–22, 157 Cal.Rptr. 706, 598 P.2d 866.)

“The test on demurrer is not whether the allegations are likely to be proven but whether the allegations preclude liability, and the allegations must be construed liberally in favor of the pleader.”  (Garton v. Title Ins. & Trust Co. (1980) 106 Cal.App.3d 365, 376, 165 Cal.Rptr. 449;  see Skopp v. Weaver (1976) 16 Cal.3d 432, 438, 128 Cal.Rptr. 19, 546 P.2d 307.)   Underwood's complaint does not withstand the test.

Although Underwood contends otherwise, she appears to be alleging both libel per se and defamatory language not libelous on its face.⁴  Specifically she alleges that the remarks complained of portray her as an “abandoned woman,” an accomplice to a thief, or at the least, exceedingly gullible.

In Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 339–340, 94 S.Ct. 2997, 3006–3007, 41 L.Ed.2d 789, 805, the United States Supreme Court held “[u]nder the First Amendment, there is no such thing as a false idea.   However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.   But there is no constitutional value in false statements of fact.”  (Emphasis added;  footnote omitted.)

 California courts have also consistently held that defamation lies only for false statement of fact;  opinions are not actionable.  (Okun v. Superior Court (1981) 29 Cal.3d 442, 450, 175 Cal.Rptr. 157, 629 P.2d 1369;  Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 600–601, 131 Cal.Rptr. 641, 552 P.2d 425.)   It is well settled that whether allegedly defamatory statements constitute fact or opinion is a question of law.   (Okun v. Superior Court, supra, 29 Cal.3d at p. 450, 175 Cal.Rptr. 157, 629 P.2d 1369;  Gregory v. McDonnell Douglas Corp., supra, 17 Cal.3d at p. 601, 131 Cal.Rptr. 641, 552 P.2d 425.)

In recognizing that the “critical determination of whether the alleged defamatory statement constitutes fact or opinion is a question of law,” the Okun court observes that “[t]he distinction frequently is a difficult one,” and goes on to elaborate that “what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole.”  (Okun v. Superior Court, supra, 29 Cal.3d at p. 450, 175 Cal.Rptr. 157, 629 P.2d 1369.)

In the subsequent Slaughter v. Friedman (1982) 32 Cal.3d 149, 154, 185 Cal.Rptr. 244, 649 P.2d 886, case wherein an oral surgeon brought a libel action, the Supreme Court tells us that “[a]lthough accusations of ‘excessive’ fees or ‘unnecessary’ work when made by laymen might indeed constitute mere opinion, similar accusations by professional dental plan administrators carry a ring of authenticity and reasonably might be understood as being based on fact.   As we recently generalized, ‘where ․ the allegedly libelous remarks could have been understood by the average reader in either sense, the issue must be left to the jury's determination.’ ”  (Ibid.)

We believe the definitional language in the Restatement Second of Torts section 566 (section 566) is helpful in clarifying the “difficult distinction” between what constitutes fact or opinion, and serves to harmonize the Okun and Slaughter cases.

Slaughter holds that an opinion to the effect that a dentist is charging excessive fees and doing unnecessary work uttered by persons associated with the dental profession suggests a knowledge of undisclosed facts, and is distinguishable from Okun.

Section 566 states:  “A defamatory communication may consist of a statement in the form of an opinion, but a statement of this nature is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.”  (Emphasis added.)

The comments following section 566 explain:  “There are two kinds of expression of opinion.   The simple expression of opinion, or the pure type, occurs when the maker of the comment states the facts on which he bases his opinion of the plaintiff and then expresses a comment as to the plaintiff's conduct, qualification or character․  [¶]  ․  [¶]  The second kind of expression of opinion, or the mixed type, is one which, while an opinion in form or context, is apparently based on facts regarding the plaintiff or his conduct that have not been stated by the defendant or assumed to exist by the parties to the communication.   Here the expression of the opinion gives rise to the inference that there are undisclosed facts that justify the forming of the opinion expressed by the defendant.”  (§ 566, com. b, pp. 171–172.)

In section 566, illustrations 3 and 4, at page 174 are on point:  “3.   A writes to B about his neighbor C:  ‘I think he must be an alcoholic.’   A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.  [¶]  4.   A writes to B about his neighbor C:  ‘He moved in six months ago.   He works downtown, and I have seen him during that time only twice, in his backyard around 5:30 seated in a deck chair with a portable radio listening to a news broadcast, and with a drink in his hand.   I think he must be an alcoholic.’   The statement indicates the facts on which the expression of opinion was based and does not imply others.”

Illustration 4 is a pure opinion.  “A simple expression of opinion based on disclosed or assumed nondefamatory facts is not itself sufficient for an action of defamation, no matter how unjustified and unreasonable the opinion may be or how derogatory it is.”  (§ 566, com. c, at p. 173.)   This is the situation here.

 In all three instances, Fratianno disclosed the underlying facts on which he based his opinions of Underwood's actions:  (1) Cohen's reputation for illegal money-making deals;  (2) Cohen was involved in a fund raising activity for Israel;  (3) Cohen was a friend of Underwood, then a city editor at The Los Angeles Herald;  and (4) an article appeared in The Los Angeles Herald about the sinking of a ship carrying arms.

Nowhere does Fratianno say that Cohen told him that Cohen had Underwood print the story of the ship's sinking.   Rather, Fratianno hazards the opinion since Cohen knew Underwood, who worked at The Los Angeles Herald, and a story about the sinking arms ship then appeared in the newspaper, that Underwood must be responsible for its printing.

Furthermore, Fratianno clearly underscores that it was his opinion drawn from the disclosed facts by remarks such as “I think to myself” and “the way I see it” before giving his opinion that Underwood printed the story on Cohen's “sayso.”  (See Footnote 2.)

Also in the KMPC broadcast Demaris, realizing that it was only Fratianno's opinion that Underwood printed the story for Cohen, gave credence to Underwood's version that the story could have been received from AP (Associated Press) rather than from Cohen.  (See Footnote 2.)

Therefore, as enunciated in Slaughter v. Friedman, supra, 32 Cal.3d at page 154, 185 Cal.Rptr. 244, 649 P.2d 886, the average reader would recognize that in the process of telling Cohen's story second-hand, Fratianno was overlaying the alleged facts with his personal opinion of Underwood's part in the hoax.

This analysis is consistent with section 566, illustration 4, in that the three sets of remarks are mere opinions based on disclosed facts, and no matter how unpleasant or derogatory Underwood finds them, they are therefore not defamatory.  (§ 566, com. c, at p. 173.)

2. There is no action for civil conspiracy where defamation was not properly pleaded.

 Underwood's first count alleged a conspiracy to defame against all respondents as joint tort feasors.   California does not recognize civil conspiracies as a separate tort and there can be no cause of action for conspiracy unless a civil wrong is committed with resulting damage.   (Widdows v. Koch (1968) 263 Cal.App.2d 228, 234, 69 Cal.Rptr. 464;  4 Witkin, Summary of Cal.Law (8th ed. 1974) § 31 at p. 2330.)

 In order to state a cause of action for conspiracy to defame, Underwood had to successfully state an action for the underlying defamation.  (Okun v. Superior Court, supra, 29 Cal.3d at p. 454, 175 Cal.Rptr. 157, 629 P.2d 1369 [conspiracy is not actionable without a wrong].)   Underwood failed in that attempt because the remarks were protected opinion;  therefore, her action for conspiracy to defame also fails.

3. Underwood did not state a cause of action for violation of the right of privacy.

 Underwood, as a seeming afterthought, argues violation of right of privacy for the first time on appeal, pointing to part of paragraph 10 of count 1 of her complaint which states, “First Cause of Action of Plaintiff Against All Defendants, as Joint Tort Feasors;  Defamation;  (Conspiracy).” ⁵  The title of the count is not dispositive, and a right of privacy cause of action was not considered by the trial court as evidenced by its ruling.

 An exception to the general rule that new matter presented on appeal will not be considered prevails when the theory raises a question of law on the facts appearing in the record.  (Barton v. Owen (1977) 71 Cal.App.3d 484, 491, 139 Cal.Rptr. 494.)   Underwood's sufficiency of pleading of the right of privacy is a question of law;  however the complaint lacks the elements necessary to state a cause of action.

 Underwood attempts to allege “public disclosure of private facts” as the basis for an invasion of privacy action.  (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808, 163 Cal.Rptr. 628, 608 P.2d 716.)   Three elements are necessary to state this cause of action:  (1) Public disclosure of private facts;  (2) facts disclosed must be private facts;  and (3) the facts made public must be those which would be offensive and objectionable to a reasonable person of ordinary sensibilities.  (Id., at pp. 808–809, 163 Cal.Rptr. 628, 608 P.2d 716.)

 Also, to withstand a demurrer, a complaint must allege ultimate facts, not merely evidentiary facts or conclusions of law.  (Logan v. Southern California Rapid Transit Dist. (1982) 136 Cal.App.3d 116, 126, 185 Cal.Rptr. 878.)   Underwood alleged a “loss of privacy” without adequate facts.   Although there was an allegation of public disclosure of facts, Underwood did not allege those facts were private and unknown to others.   This cause of action also fails.

CONCLUSION

The trial court properly sustained the demurrers as the remarks alleged to be defamatory were mere opinion.   As there was no underlying action for defamation, the conspiracy count fails.   Finally, no action for violation of the right of privacy was adequately pleaded in the complaint.

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   The factual picture was gleaned from the pleadings, including the briefs on appeal.

2.   “ ‘By now I'm convinced it's (solicitation of money for arms for Israel) [explanatory parenthetical was added by Underwood in her complaint] a ․ scam, but to make a long story short, they got nearly eight hundred thousand.   The next day I see Mickey and I says, “What's this scam all about?”   He says, “Jimmy, this ain't no scam.   This money's for the Jews.”   I says, “Mickey, don't give me this ․  There's no way you're going to let eight hundred grand slip through your fingers.   Not in a million ․ years.”   But he swears it's on the level and now I'm wondering how this guy's going to pull it off.  [¶]  ․  [¶]  ․  So now three months go by and Mickey calls me one day and wants me to come over right away.   I walk in and he throws a copy of The Herald across his desk and says, “Jimmy, my God, what do you think of this?   His finger's pointing to this article about a ship loaded with guns and ammunition that sunk at sea.   He's tapping his finger against the newspaper and looking at me with his hound-dog eyes, not a ․ expression on his face, and he keeps repeating, “Oh, terrible, terrible.   What a tragedy.”   The story mentions no names.   It don't say why it sank, the name of the ship, nothing.   Just that a ship loaded with arms sunk somewhere in the ․ ocean.   He says, “Jimmy, the boat carrying the guns and ammunition for the Jews has sunk.   A million ․ dollars has gone to the bottom of the ocean.”  [¶]  I think to myself, “You ․, I know your game.”   See, he's got this broad at The Herald, Aggie Underwood.   She's a big editor there, and this broad would walk on hot coals for Mickey.   Prints any ․ he gives her.   The way I see it, Mickey called her and made up a story about buying guns and ammunition for the Jews with the million raised at the benefits and then told her the boat sank.   A few unknown people died, some were saved, and she prints it on his sayso.   I says, “Mickey, congratulations.   You've just pulled off the biggest, cleanest ․ score I've ever seen made.”   And he looks at me, just squinting, you know, and for a split second there's this big ․ grin on his face.   But he says, “Jimmy, you've got me all wrong.   The story's right here in the paper.” ’ ”

3.   A second appeal was filed by Underwood from the granting of a motion for judgment on the pleadings dismissing Demaris and Fratianno from the action.   Underwood's appeal therefrom was not perfected because Underwood failed to file notice designating the record on appeal.   (Cal.Rules of Court, rule 10(c).)

4.   California Civil Code section 45 states in pertinent part:  “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.”California Civil Code section 45a states in pertinent part:  “A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face.   Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof.”

5.   Count 1, paragraph 10:  “Said statements contained in said book, television and radio broadcasts were false and defamatory, and were known to be such by defendants, and were made maliciously, recklessly and irresponsibly, by defendants, and in wanton disregard of the truth and of the feelings and rights of plaintiff, all as is detailed herein.   Said statements were made through ill will and malice towards plaintiff, and to create irresponsible sensationalism, in the sale, exploitation and distribution of said Last Mafioso book resulting in placing the book on the best seller list.   Said commercial, and T.V. and Radio exploitation was accomplished at the personal expense of plaintiff.   By reason thereof, said statements were made with the intent, design and purpose on the part of defendants to injure plaintiff in her reputation, and to discredit her and bring her into public contempt and ridicule and to cause her great mental anguish and physical pain and suffering, and loss of privacy all as has been detailed herein.   The motivation of defendants was to make corporate and individual profits, at plaintiff's expense.”  (Emphasis added;  Underwood deletes the damage demands that were originally part of paragraph 10.)

KLEIN, Presiding Justice.

LUI and DANIELSON, JJ., concur.