Court of Appeals of California, Second Appellate District

July 18, 1983

Opinion by Roth.

On March 2, 1976, appellant caused to appear in its weekly publication, the National Enquirer, a "gossip column" headlined "Carol Burnett and Henry K. in Row," wherein a four-sentence item specified in its entirety that: "In a Washington restaurant, a boisterous Carol Burnett had a loud argument with another diner, Henry Kissinger. Then she traipsed around the place offering everyone a bite of her dessert. But Carol really raised eyebrows when she accidentally knocked a glass of wine over one diner and started giggling instead of apologizing. The guy wasn't amused and 'accidentally' spilled a glass of water over Carol's dress."

Maintaining the item was entirely false and libelous, an attorney for Ms. Burnett, by telegram the same day and by letter one week later, demanded its correction or retraction "within the time and in the manner provided for in Section 48(a) of the Civil Code of the State of California," failing which suit would be brought by his client [respondent herein], a well known actress, comedienne and show-business personality.

In response to the demand, appellant on April 6, 1976, published the following retraction, again in the National Enquirer's gossip column: "An item in this column on March 2 erroneously reported that Carol Burnett had an argument with Henry Kissinger at a Washington restaurant and became boisterous, disturbing other guests. We understand these events did not occur and we are sorry for any embarrassment our report may have caused Miss Burnett. "

On April 8, 1976, respondent, dissatisfied with this effort in mitigation, filed her complaint for libel in the Los Angeles Superior Court. Trial before a jury resulted in an award to respondent of $300,000 compensatory damages and $ 1.3 million punitive damages. The trial court by remittitur thereafter rendered its judgment in respondent's favor for $ 50,000 compensatory and
$750,000 punitive damages. This appeal followed.

Prior to addressing the merits of appellant's contentions and in aid of our disposition, we set out the following further facts pertaining to the publication complained of and descriptive of the nature and character of the National Enquirer, which were adequately established in the proceedings below.

On the occasion giving rise to the gossip column item hereinabove quoted, respondent, her husband and three friends were having dinner at the Rive Gauche restaurant in the Georgetown section of Washington, D.C. The date was January 29, 1976. Respondent was in the area as a result of being invited to be a performing guest at the White House. In the course of the dinner, respondent had two or three glasses of wine. She was not inebriated. She engaged in banter with a young couple seated at a table next to hers, who had just become engaged or were otherwise celebrating. When curiosity was expressed about respondent's dessert, apparently a chocolate souffle, respondent saw to it the couple were provided with small amounts of it on plates they had passed to her table for the purpose. Perhaps from having witnessed the gesture, a family behind respondent then offered to exchange some of their baked alaska for a portion of the soufflé, and they, too, were similarly accommodated. As respondent was later leaving the restaurant, she was introduced by a friend to Henry Kissinger, who was dining at another table, and after a brief conversation, respondent left with her party.

There was no "row" with Mr. Kissinger, nor any argument between the two, and what conversation they had was not loud or boisterous. Respondent never "traipsed around the place offering everyone a bite of her dessert," nor was she otherwise boisterous, nor did she spill wine on anyone, nor did anyone spill water on her and there was no factual basis for the comment she ". . . started giggling instead of apologizing. "

The impetus for what was printed about the dinner was provided to the writer of the item, Brian Walker, by Couri Hays, a freelance tipster paid by the National Enquirer on an ad hoc basis for information supplied by him which was ultimately published by it, who advised Walker he had been informed respondent had taken her Grand Marnier soufflé around the restaurant in a boisterous or flamboyant manner and given bites of it to various other people; that he had further but unverified information respondent had been involved in the wine-water spilling incident; but that, according to his sources, respondent was "specifically, emphatically" not drunk. No mention was made by Hays of anything involving respondent and Henry Kissinger.

Having received this report, Walker spoke with Steve Tinney, whose name appears at the top of the National Enquirer gossip column, expressing doubts whether Hays could be trusted. Tinney voiced his accord with those doubts. Walker then asked Gregory Lyon, a National Enquirer reporter, to verify what Walker had been told by Hays. Lyon's inquiry resulted only in his verifying respondent had shared dessert with other patrons and that she and Kissinger had carried on a good natured conversation at the restaurant.

In spite of the fact no one had told him respondent and Henry Kissinger had engaged in an argument, that the wine-water spilling story remained as totally unverified hearsay, that the dessert sharing incident was only partially bolstered, and that respondent was not under any view of the question inebriated, Walker composed the quoted item and approved the "row" headline.

Was there error associated with the award to respondent of $ 750,000 in punitive damages? Yes.

In order, first, to provide the framework employed by us in rejecting certain contentions raised by appellant under this heading, we set out preliminarily the following considerations and principles fundamental to our conclusions.

Nearly 20 years ago, it was announced in New York Times Co. v. Sullivan (1964) that: "The constitutional guarantees [relating to protected speech] require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with 'actual malice' --that is, with knowledge that it was false or with reckless disregard of whether it was false or not.

The constitutional privilege thus defined was extended three years later in Curtis Publishing Co. v. Butts (1967) to include within its protection not only public officials but also "public figures," such that: "Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth."

What was intended to be accomplished in each of these instances was to make available an "antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander", which rule holds publishers responsible for their false utterances even where an absence of "malice" is positively established, as for example in the case of a defamation which mistakenly or negligently identifies a party as its subject, "intending" another.

Finally, in Gertz v. Welch, because it was thought "the States should retain substantial latitude in their efforts to enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual," a wholesale extension of the New York Times test to such persons was rejected as one which would abridge that legitimate state interest to an unacceptable degree, and it was held instead that: ". . . so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual," but that: ". . . the States may not permit recovery of presumed [i.e., compensatory damages without evidence of actual loss] or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. " so that: ". . . In short, the private defamation plaintiff who establishes liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury."

These aspects of the scope of the New York Times rule having been related, we observe additionally that, as will hereinafter be seen, the reference in the rule to "actual malice" may prove confusing when juxtaposed to similar terms commonly employed in the law relating to libel, where, as in a case like the one before us, those terms are involved with the question of punitive damages. The difference, nevertheless, between the concept of malice as the term is used respecting liability for libel and the meaning of the word as it provides the basis for recovery of punitive damages for that tort, at least in California, has been clearly articulated in the case. Thus it was there pointed out that for purposes of the distinction it is necessary only to define two of the several terms, namely malice in law and malice in fact, the former being understood as: ". . . that malice which the law presumes (either conclusively or disputably) to exist upon the production of certain designated evidence, which malice may be fictional and constructive merely, and which, arising, as it usually does, from what is conceived to be the necessity of proof following a pleading, which in turn follows a definition, is to be always distinguished from true malice or malice in fact." and the latter referring to: ". . . a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or injure another person," or to: "the motive and willingness to vex, harass, annoy, or injure," that is to say to: "malus animus -- indicating that the party was actuated either by spite or ill will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody."

The matter herein was tried upon the premise respondent is a "public figure" and there was employed in establishing the liability of appellant the New York Times standard, expressed in the trial court's instruction to the jury that: "In addition, plaintiff must prove by clear and convincing evidence that defendant published the item complained of with actual malice -- that is, that the defendant published the item either knowing that it was false or with reckless disregard for whether it was true or false."

On the question of punitive damages, however, the jury was instructed that such damages could be imposed if appellant had been shown "by a preponderance of the evidence" to have been "guilty of malice," which was defined as: "conduct which is intended by the defendant to cause injury to the plaintiff or carried on by the defendant with a conscious disregard for the rights of others."

Appellant asserts this instruction constituted prejudicial error in that the law under the circumstances present requires that punitive damages may not be awarded to a public figure without proof of the publisher's hatred or ill will by clear and convincing evidence. Stated another way, appellant maintains that a "standard" of proof expressed in the trial court's "intended-conscious disregard" language, and a "burden" of proof based on a preponderance of the evidence, are inadequate in any libel case of the type present here.

We are of the opinion that in so contending appellant is mistaken. As can be ascertained from what we have set out above, the "actual malice" required by New York Times to be established by "clear and convincing evidence" refers to that aspect of malice, properly denominated malice in law, necessary to find liability for libel and not to malice in fact, essential to the recovery of punitive damages, which under the cases discussed may be arrived at on the basis of applicable state standards, here on the basis of a preponderance of the evidence.

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