Selleck v. Globe International, Inc.

Page 838

212 Cal.Rptr. 838

166 Cal.App.3d 1123

Robert D. SELLECK, Plaintiff and Appellant, v. GLOBE INTERNATIONAL, INC., Defendant and Respondent.

B008350.

Court of Appeal, Second District, Division 7, California.

April 16, 1985.

Review Denied Aug. 1, 1985. ^*

Lavely & Singer and John H. Lavely, Jr., and Lawrence J. Kaplan, Los Angeles, for plaintiff and appellant.

Deutsch, Levy & Engel, Glassman & Browning, Anthony Michael Glassman, Jane D. Saltsman and Stephen J. Rawson, Beverly Hills, for defendant and respondent.

LILLIE, Presiding Justice.

Robert Selleck sued Globe International, Inc. for damages for libel and invasion of privacy by depicting plaintiff in a false light. Defendant's demurrer to the second amended complaint was sustained with 30 days' leave to amend. Plaintiff failed to amend within the specified period. He appeals from the ensuing judgment of dismissal ¹ (Code Civ.Proc., § 581, subd. (c)).

FACTS

Plaintiff is the father of actor Tom Selleck. This lawsuit is based on an article published by defendant which contained statements about Tom Selleck attributed to plaintiff.

The second amended complaint contained two causes of action. The first cause of action (libel) alleged: Defendant publishes and circulates, in the City and County of Los Angeles, a weekly magazine known as the Globe which is read by a great number of persons in the area of its circulation. The front page of the December 14, 1982 issue of the Globe carried the headline "Tom Selleck's love secrets--By His Father." The article to which the headline referred was entitled "Why Tom Selleck Can Never Be A Happy Lover"; appearing as an inset in the article was a photograph of plaintiff with the caption "His Father Reveals All." Among the statements in the Globe article attributed to plaintiff were the following: "Tom Selleck may be TV's sexiest leading man but his dad says he's really a shy guy so ill at ease with women that he finds it difficult to sustain a lasting relationship"; " 'Tom's relationships with the women in his life are always disappointing because he's just not the person they think he should be,' the elder Selleck explains"; "He [plaintiff] calls Tom strictly a one-woman man not interested in dating a lot of girls"; " 'To tell the truth, instead of taking out his tensions on romantic flings,' says Selleck Senior, 'my son would rather be fixing up the house or doing some gardening' "; " 'Anyway, there's still really only one lady in his life and that's his wife Jackie,' he adds. 'Even though they are apart, Tom still thinks of himself as being married ... Tom thinks of marriage as a forever thing.' "

The first cause of action further alleged: Plaintiff never gave an interview to any of defendant's reporters and did not consent to any interview that could be used by or sold to defendant. Since plaintiff never made any statements to defendant, or to any other person, firm or entity, that could be characterized as pertaining to Tom Selleck's so-called "love secrets" and never "revealed" anything on the subject of whether Tom Selleck could "never be a happy lover," the headline, title and caption are false and defamatory. The quotations in the article falsely attributed to plaintiff state expressly, or by implication or insinuation, that plaintiff was interviewed by and made statements to defendant's reporters, or made public statements of the type attributed to him in the article, regarding private and personal aspects of his son's life. Defendant published the statements with knowledge that they were falsely attributed to plaintiff or with a reckless disregard of the fact that plaintiff did not make the statements. The article is libelous on its face because, by falsely attributing to plaintiff statements which he did not make, it subjects him to hatred, contempt, ridicule and humiliation and injuries him with respect to his reputation, profession and business. Plaintiff served on defendant a demand for correction of the defamatory and false statements contained in the article; defendant refused to publish a correction. As a result of the publication of the article, plaintiff has sustained general damages in amount not less than $1 million. As a further result of defendant's wrongful conduct plaintiff has sustained, and will sustain, special damages including loss of reputation in his profession and loss of business, resulting in loss of earnings and profits in an amount not yet ascertainable. ²

The second cause of action (false light invasion of privacy) incorporated each allegation of the first cause of action and further averred: By publishing the article, defendant placed plaintiff before the public in a false light which is highly offensive to plaintiff and would be highly offensive to a reasonable person. Defendant had knowledge of, or acted in reckless disregard of, the false light in which plaintiff would be placed by publication of the article. While general damages were alleged, the second cause of action did not allege special damages except by incorporation of the allegations of the first cause of action.

Defendant demurred to the second amended complaint on the following grounds: (1) because the article is not libelous on its face and special damages are not adequately pleaded, a cause of action for libel is not stated; (2) inasmuch as a claim of false light invasion of privacy is subject to the same requirements as a libel claim, including the pleading of special damages, the second cause of action likewise fails to state a cause of action; and (3) the second cause of action for false light invasion of privacy is, in substance, the equivalent of the first cause of action for libel and therefore should be dismissed as surplusage. The demurrer was sustained on the first and second grounds ³ with 30 days' leave to amend. Following plaintiff's failure to amend within that period, defendant moved for entry of judgment of dismissal. The motion was granted and judgment was entered dismissing the action.

DISCUSSION

I LIBEL

A defamatory publication not libelous on its face is not actionable unless the plaintiff alleges that he has suffered special damages as a result thereof. (Civ.Code, § 45a; ⁴ Forsher v. Bugliosi (1980) 26 Cal.3d 792, 806-807, 163 Cal.Rptr. 628, 608 P.2d 716; Mullins v. Thieriot (1971) 19 Cal.App.3d 302, 304, 97 Cal.Rptr. 27; Gautier v. General Telephone Co. (1965) 234 Cal.App.2d 302, 309, 44 Cal.Rptr. 404.) Plaintiff does not claim that he adequately pleaded special damages. (See Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 791-792, 228 P.2d 6; Peabody v. Barham (1942) 52 Cal.App.2d 581, 585, 126 P.2d 668.) He contends that the first cause of action on its face states a cause of action for libel, thus eliminating the need to allege special damages. (Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 654, 7 Cal.Rptr. 617, 355 P.2d 265.)

Libel is "a false and unprivileged publication by writing ... 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." (Civ.Code, § 45.) Libel on its face is defined as "[a] libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact." (Civ.Code, § 45a.) Under this definition, "[t]he fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense.... '[H]airsplitting analysis of language has no place in the law of defamation, dealing as it does with the impact of communications between ordinary human beings. It is inconsistent with the rule that 'the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader.' .... It not only finds no support in, but is contrary to, the provisions of section 45a, which define, not language susceptible of only one meaning, but language that carries a defamatory meaning on its face." (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549-551, 343 P.2d 36. original emphasis.)

It is error for a court to rule that a publication cannot be defamatory on its face when by any reasonable interpretation the language is susceptible of a defamatory meaning. (Cameron v. Wernick (1967) 251 Cal.App.2d 890, 893, 60 Cal.Rptr. 102.) In reviewing the trial court's order sustaining the demurrer, our inquiry is not to determine whether the publication may have an innocent meaning but rather to determine if it reasonably conveys a defamatory meaning. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 154, 185 Cal.Rptr. 244, 649 P.2d 886; Forsher v. Bugliosi, supra, 26 Cal.3d 792, 803, 163 Cal.Rptr. 628, 608 P.2d 716.) In making that determination we look to what is explicitly stated as well as what insinuation and implication can be reasonably drawn from the publication. (Forsher v. Bugliosi, supra, 26 Cal.3d at p. 803, 163 Cal.Rptr. 628, 608 P.2d 716.) " ' "[N]ot only is the language employed to be regarded with reference to the actual words used, but according to the sense and meaning under all the circumstances attending the publication which such language may fairly be presumed to have conveyed to those to whom it was published. So that in such cases the language is uniformly to be regarded with what has been its effect, actual or presumed, and its sense is to be arrived at with the help of the cause and the occasion of its publication. And in passing upon the sufficiency of such language as stating a cause of action, a...