Condit v. National Enquirer, Inc.

248 F.Supp.2d 945

Carolyn CONDIT, Plaintiff, v. NATIONAL ENQUIRER, INC., Defendant.

No. CIV F 02-5198 OWW LJO.

United States District Court, E.D. California.

July 10, 2002.

COPYRIGHT MATERIAL OMITTED

Brian Anthony Rishwain, Johnson and Rishwain LLP, Los Angeles, CA, Rodney Smolla, University of Richmond, T C Williams School of Law, Richmond, VA, for Carolyn Condit, plaintiff.

Bruce Alan Owdom, Dietrich Glasrud Mallek and Aune, Fresno, CA, Adam Lindquist Scoville, Pro Hac Vice, Thomas B Kelley, Pro Hac Vice, Steven D Zansberg, Pro Hac Vice, Faegre & Benson, Denver, CO, Michael B Kahane, Pro Hac Vice, American Media Inc, Law Department, Boca Raton, FL, for National Enquirer Inc, American Media, Inc., defendants.

MEMORANDUM DECISION AND ODER RE: DEFENDANT'S MOTION TO DISMISS OR STRIKE, OR, ALTERNATIVELY, SUMMARY JUDGMENT AND ATTORNEY'S FEES

WANGER, District Judge.

I. INTRODUCTION

Carolyn Condit ("Plaintiff) sues National Enquirer, Inc. ("Defendant"), and unnamed Does for libel based on statements published in two issues of Defendant's weekly publication, The National Enquirer, dated August 7 and September 4, 2001. See Doc.1, Complaint, filed February 21, 2002. Diversity jurisdiction is invoked under 28 U.S.C. § 1332, based on the parties' citizenship in different states and the amount in controversy in excess of the $75,000 jurisdictional minimum. Defendant moves to dismiss or strike Plaintiffs Complaint under Fed.R. Civ.P. 12(b)(6), or alternatively, for summary judgment and attorney's fees under California Code of Civil Procedure section 425.16 prohibiting Strategic Lawsuits Against Public Participation. See Doc.19, filed April 1, 2002. Plaintiff opposes Defendant's motion. See Doc.28, filed June 17, 2002. Oral argument was heard July 1, 2002.

II. BACKGROUND

Plaintiff is a California citizen and the wife of former United States Congressman Gary A. Condit. See Complaint at ¶ 3. Plaintiffs Complaint alleges she is not a public figure, has never given, or granted a request for her to give, an interview to a journalist, and has not voluntarily injected herself into a matter of public concern in an attempt to influence the outcome of a controversy. See id. Defendant's articles, exhibits 1 and 2 to the Complaint, confirm that Plaintiff is a "private" person who has not participated in her husband's public life. Defendant is a corporation with its principal place of business in Boca Raton, Florida. See Complaint at ¶ 4. Defendant disseminates a weekly publication, The National Enquirer (the "Enquirer "). See id.

Some time before July 26, 2001, the Enquirer reported on its website, , that "just days before" the disappearance of Mr. Condit's intern, Chandra Levy, Plaintiff phoned Mr. Condit's Washington, D.C., apartment from the Condits' home in Ceres, California, and verbally attacked Ms. Levy during a five-minute telephone conversation. See Complaint at ¶ 6. On July 26, 2001, the Washington Metro Police Department responded to the Enquirer's report and debunked the reported phone call with the following statement from Chief Terrance W. Gainer: "I don't think there's any truth to that whatsoever." See id. at ¶ 7. The following day, July 27, 2001, Washington Metro Police spokesperson Joe Gentile also dismissed the Enquirer`s report, stating: "I am saying there is no foundation to that report." See id.

Several newspapers, including the USA Today, New York Post, and Washington Times, reported the information that was posted on the Enquirer's website, including that Plaintiff verbally attacked Ms. Levy over the telephone just days before her disappearance. See id. at ¶ 8. Plaintiff alleges that notwithstanding the statements by Washington Metro Police Department personnel, the Enquirer on August 7, 2001, published an article describing the purported angry phone call between Plaintiff and Ms. Levy. See id. at 119.

Plaintiffs Complaint contains three claims for libel. See Complaint. The first claim alleges Defendant published the following "First Offending Statements" in the August 7, 2001, edition of the Enquirer: 1) the large, bold-faced, all-caps headline on the cover: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; 2) the sub-headlines on the cover: "The furious phone call," and "What wife is hiding"; 3) the story headline in all-caps on page 32: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; and 4) the first paragraph of the article on page 32: "Gary Condit's bitter wife flew into a rage and attacked Chandra Levy in a furious confrontation just days before the intern's disappearance, The ENQUIRER has learned exclusively." See Complaint at ¶¶ 13-15, Exh. A.

Plaintiff alleges the First Offending Statements are libelous on their face, per se, because they imply Plaintiff committed crimes of assault and battery. See Complaint at ¶ 16. Plaintiff alleges the First Offending Statements are reasonably susceptible of a defamatory meaning because they falsely insinuate or state: a) the police believe, and the true fact is, that Plaintiff physically attacked and/or was physically involved in the disappearance of Ms. Levy; b) Plaintiff is hiding information about Ms. Levy's disappearance; and c) Plaintiff had a telephone call with Ms. Levy "just days before" Ms. Levy's disappearance. See Complaint at ¶¶ 17-18. Plaintiff alleges she has never seen Ms. Levy in person or spoken to her on the telephone, and telephone records show no phone call made "days before" Ms. Levy's disappearance from Plaintiffs home in Ceres, California, to Mr. Condit's apartment in Washington, D.C. See Complaint at ¶ 18.

Plaintiff alleges Defendant was aware the cover and story headlines were misleading but made no attempt to clarify their meaning prior to publication. See Complaint at ¶ 19. Since Defendant's inhouse counsel and vice president, Michael Kahane, has performed pre-publication review for another tabloid, the Globe, since 1995, Plaintiff asserts Defendant was subjectively aware the headlines in the First Offending Statements conveyed a defamatory or potentially defamatory meaning in light of Kaelin v. Globe Comms. Corp., 162 F.3d 1036 (9th Cir.1998), which held the following headline reasonably susceptible of a defamatory meaning: "COPS THINK KATO DID IT!" See Complaint at ¶ 19. The Complaint charges Defendant recklessly disregarded its awareness of the defamatory meaning of the First Offending Statements by failing to explore whether a defamatory meaning was communicated. See id. Plaintiff claims Defendant deliberately intended to convey the impression that Plaintiff physically attacked Ms. Levy or that her disappearance was a result of Plaintiffs jealous rage when Defendant had no reason to believe that impression was true. See id.

Plaintiffs second claim alleges Defendant published the "Second Offending Statements" in the August 7, 2001, edition of the Enquirer in the story beginning on page 32: 1) "In a major breakthrough, investigators have uncovered what they say is the `blowup phone call' between Chandra and Carolyn Condit—during which the 24-year-old intern told an enraged Carolyn that Gary was dumping her to start a new life and family with Chandra"; 2) "The Justice Department source confirmed: `Investigators are now sure that Mrs. Condit talked with Chandra Levy in the days before her disappearance'"; and 3) In a bombshell disclosure, a source told the Enquirer: "Investigators got phone records that show a phone call from Condit's home in California to his apartment in Washington that was over five minutes long.

From their extensive work including interviews with Condit, his wife, and Chandra's family members and friends, investigators now say that Chandra and Carolyn had a heated conversation. When the phone rang, Chandra was in the apartment and saw from the caller ID that it was from Condit's home in California. And she boldly answered it.

Chandra and the wife had a heated phone screamfest...."

Complaint at ¶¶ 25-26.

Plaintiffs third claim alleges Defendant published the "Third Offending Statement" in the September 4, 2001, edition of the Enquirer: "Just days before the intern's disappearance Carolyn flew into a rage at Chandra during a phone call." Complaint at ¶ 34. Plaintiff asserts Defendant recycled the information about the phone call from the August 7, 2001, issue of the Enquirer without further corroboration by additional sources. See id. at ¶ 36. Defendant or its purported source or sources fabricated the "furious phone call" and that any source on the matter was not credible because the story is unsupported by phone records and no such call occurred. See id.

The Complaint charges that Defendant published the First, Second, and Third Offending Statements (collectively, the "Offending Statements") with negligence and constitutional and actual malice with knowledge that they were false or with a reckless disregard for their truth or falsity. See id. at ¶¶ 19, 28, 36. Defendant was aware, at least eleven days before publishing the August 7, 2001, issue and forty days before publishing the September 4, 2001, issue, that the Washington Metro Police Department denied the alleged phone call ever took place. See id. Without attempting to interview Plaintiff, Defendant recklessly ignored the known contradictory statements by Washington Metro Police and published the Offending Statements. See id.

The Complaint asserts Defendant had a "pecuniary motive" to publish headlines and stories reasonably susceptible of a defamatory meaning. See id. Defendant "had a predetermined bias against Mrs. Condit" and broke the story as a "World Exclusive" in an attempt "to gain sole credit as the first to sully Mrs. Condit's reputation and to drag her into the morass." Id. The purported source is twice removed from any original source, but "Defendant purposely avoided the truth by failing to adequately fact-check to confirm the accuracy of the offending statements ... where the implication of the offending statements are serious enough to...