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COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT, DIVISION FOUR |
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Civ. No. 52133 |
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1979.CA.40861 <http://www.versuslaw.com>; 155 Cal. Rptr. 29; 92 Cal. App. 3d 61 |
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April 18, 1979 |
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PAUL BINDRIM, PLAINTIFF AND APPELLANT,
v.
GWEN DAVIS MITCHELL ET AL., DEFENDANTS AND APPELLANTS |
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Superior Court of Los Angeles County, No. WE C 24045, Richard Leslie Wells, Judge. |
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Lillick, McHose & Charles, Anthony Liebig, Kathleen Hallberg, Satterlee & Stephens, Robert M. Callagy and Katherine J. Trager for Defendants and Appellants. |
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Slaff, Mosk & Rudman, George Slaff and Marc R. Stein for Plaintiff and Appellant. |
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Opinion by Kingsley, J. Separate concurring opinion by Jefferson (Bernard), J. Separate dissenting opinion by Files, P. J. |
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Kingsley |
| [92 CalApp3d Page 68] |
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This is an appeal taken by Doubleday and Gwen Davis Mitchell from a judgment for damages in favor of plaintiff-respondent Paul Bindrim, Ph.D. The jury returned verdicts on the libel counts against Doubleday and Mitchell and on the contract count against Mitchell. |
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The court denied defendants’ motion for judgment NOV and granted a new trial subject to the condition that new trial would be denied if plaintiff would consent to (1) a reduction of the libel verdict against Mitchell from $38,000 to $25,000; (2) a striking of the $25,000 punitive damage award against Doubleday on the libel count; and (3) a striking of the $12,000 damage award on the contract count against Mitchell. |
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Plaintiff consented without prejudice on these issues in any appeal to be taken from the judgment. Defendants appealed and plaintiff cross-appealed from the judgment reducing the original jury verdict. |
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Plaintiff is a licensed clinical psychologist and defendant is an author. Plaintiff used the so-called “Nude Marathon” in group therapy as a means of helping people to shed their psychological inhibitions with the removal of their clothes. |
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Defendant Mitchell had written a successful best seller in 1969 and had set out to write a novel about women of the leisure class. Mitchell attempted to register in plaintiff’s nude therapy but he told her he would not permit her to do so if she was going to write about it in a novel. Plaintiff said she was attending the marathon solely for therapeutic reasons and had no intention of writing about the nude marathon. Plaintiff brought to Mitchell’s attention paragraph B of the written contract which reads as follows: “The participant agrees that he will not take photographs, write articles, or in any manner disclose who has attended the workshop or what has transpired. If he fails to do so he releases all parties from this contract, but remains legally liable for damages sustained by the leaders and participants.” |
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Mitchell reassured plaintiff again she would not write about the session, she paid her money and the next day she executed the agreement and attended the nude marathon. |
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Mitchell entered into a contract with Doubleday two months later and was to receive $150,000 advance royalties for her novel. |
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Mitchell met Eleanor Hoover for lunch and said she was worried because she had signed a contract and painted a devastating portrait of Bindrim. |
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Mitchell told Doubleday executive McCormick that she had attended a marathon session and it was quite a psychological jolt. The novel was |
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published under the name “Touching” and it depicted a nude encounter session in Southern California led by “Dr. Simon Herford.” |
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Plaintiff first saw the book after its publication and his attorneys sent letters to Doubleday and Mitchell. Nine months later the New American Library published the book in paperback. |
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The parallel between the actual nude marathon sessions and the sessions in the book “Touching” was shown to the jury by means of the tape recordings Bindrim had taken of the actual sessions. Plaintiff complains in particular about a portrayed session in which he tried to encourage a minister to get his wife to attend the nude marathon. Plaintiff alleges he was libeled by the passage below: |
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Excerpts from “Touching ” |
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Page |
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126-27 |
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The minister was telling us how the experience had gotten him further back to God, |
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And all the time he was getting closer to God, he was being moved further away from his wife, who didn’t understand, she didn’t understand at all. She didn’t realize what was coming out of the sensitivity training sessions he was conducting in the church. |
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he felt, he, more than felt, he knew, that if she didn’t begin coming to the nude marathons and try to grasp what it was all about, the marriage would be over. |
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“You better bring her to the next marathon,” Simon said. |
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“I’ve been trying,” said the minister. “I only pray she comes.” |
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“You better do better than pray,” said Simon. “You better grab her by the cunt and drag her here.” |
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“I can only try.” |
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“You can do more than try. You can grab her by the cunt, |
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“A man with that kind of power, whether it comes from God or from his own manly strength, strength he doesn’t know he has, can drag his wife here by the fucking cunt. |
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“I know,” Alex said softly. “I know.” |
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Transcript of Actual Session: |
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“I’ve come a little way,” |
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“I’d like to know about your wife. She hasn’t been to a marathon?” |
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“No.” |
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“Isn’t interested? Has no need?” |
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“I don’t – she did finally say that she would like to go to a standard sensitivity training session somewhere. She would be – I can’t imagine her in a nude marathon. She can’t imagine it.”
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“Why?” |
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“Neither could I when I first came.
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“Yeh. She might. I don’t know.” |
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“It certainly would be a good idea for two reasons: one, the minor one is that you are involved here, and if she were in the same thing, and you could come to some of the couple ones, it would be helpful to you. But more than that, almost a definite recipe for breaking up a marriage is for one person to go into growth groups and sense change and grow . . .” |
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“I know that.” |
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“Boy they sure don’t want that, and once they’re clear they don’t need that mate anymore, and they are not very patient.” |
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“But it is true, the more I get open the more the walls are built between us. And it’s becoming a fairly intelligent place, a fairly open place, doing moderate sensitivity eyeballing stuff with the kids. I use some of these techniques teaching out class work.” |
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“Becoming more involved?” |
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“Yeh, involved at the same time that I am more separated from. It’s a paradox again, isn’t it?” |
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“Mmm.” |
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Plaintiff asserts that he was libeled by the suggestion that he used obscene language which he did not in fact use. Plaintiff also alleges various other libels due to Mitchell’s inaccurate portrayal of what actually happened at the marathon. Plaintiff alleges that he was injured in his profession and expert testimony was introduced showing that Mitchell’s portrayal of plaintiff was injurious and that plaintiff was identified by certain colleagues as the character in the book, Simon Herford. |
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I |
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Defendants first allege that they were entitled to judgment on the ground that there was no showing of “actual malice” by defendants. As a public figure, plaintiff is precluded from recovering |
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damages for a defamatory falsehood relating to him, unless he proved that the statement was made with “actual malice,” that is, that it was made with knowledge that it is false or with reckless disregard of whether it was false or not. (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280 [11 L.Ed.2d 686, 706-707, 84 S.Ct. 710, 95 A.L.R.2d 1412].) The cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. (St. Amant v. Thompson (1968) 390 U.S. 727, 731 [20 L.Ed.2d 262, 267, 88 S.Ct. 1323].) Thus, what constitutes actual malice focuses on defendants’ attitude toward the truth or falsity of the material published and reckless disregard of the truth or falsity cannot be fully encompassed by one infallible definition but its outer limits must be marked by a case-by-case adjudication. (Widener v. Pacific Gas & Electric Co. (1977) 75 Cal. App. 3d 415, 434 [142 Cal. Rptr. 304].) |
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Evidence establishing a reckless disregard for the truth must be clear and convincing evidence, and proof by a preponderance of evidence is insufficient. (New York Times Co. v. Sullivan (1964) supra, 376 U.S. 254, at pp. 285-286 [11 L.Ed.2d 686, at pp. 709-710].) Whether or not there was such malice is a question of fact to be determined by the trier of fact. (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d 415.) However, the reviewing court is required to review the evidence in a libel action by a public figure, to be sure that the principles were constitutionally applied. (Montandon v. Triangle Publications, Inc. (1975) 45 Cal. App. 3d 938, 948 [120 Cal. Rptr. 186, 84 A.L.R.3d 1234].) The court has the duty to examine the record to determine whether it could constitutionally support a judgment in favor of plaintiff, but this does not involve a de novo review of the proceedings below wherein the jury’s verdict is entitled to no weight. (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d at p. 433.) |
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There is clear and convincing evidence to support the jury’s finding that defendant Mitchell entertained actual malice, and that defendant Doubleday had actual malice when it permitted the paperback printing of “Touching,” although there was no actual malice on the part of Doubleday in its original printing of the hardback edition. |
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Mitchell’s reckless disregard for the truth was apparent from her knowledge of the truth of what transpired at the encounter, and the |
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literary portrayals of that encounter. Since she attended sessions, there can be no suggestion that she did not know the true facts. Since “actual malice” concentrates solely on defendants’ attitude toward the truth or falsity of the material published (Carson v. Allied News Co. (7th Cir. 1976) 529 F.2d 206; Widener v. Pacific Gas & Electric Co. (1977), supra, 75 Cal. App. 3d 415, and not on malicious motives, certainly defendant Mitchell was in a position to know the truth or falsity of her own material, and the jury was entitled to find that her publication was in reckless disregard of that truth or with actual knowledge of falsity. |
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However, plaintiff failed to prove by clear and convincing evidence that the original hardback publication by Doubleday was made with knowledge of falsity or in reckless disregard of falsity. McCormick of Doubleday cautioned plaintiff that the characters must be totally fictitious and Mitchell assured McCormick that the characters in “Touching” were incapable of being identified as real persons. McCormick arranged to have the manuscript read by an editor knowledgeable in the field of libel. The cases are clear that reckless conduct is not measured by whether a reasonably prudent person would have published or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that defendant in fact entertained serious doubts as to the truth of his publication, (St. Amant v. Thompson (1968) supra, 390 U.S. 727, 731 [20 L.Ed.2d 262, 267]), and there is nothing to suggest that Doubleday entertained such doubts prior to the hardback publication. |
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Plaintiff suggests that, since the book did not involve “hot news,” Doubleday had a duty to investigate the content for truth. Courts have required investigation as to truth or falsity of statements which were not hot news (Widener v. Pacific Gas & Electric Co. (1977) supra, 75 Cal. App. 3d 415; Carson v. Allied News Co. (3d Cir. 1976) supra, 529 F.2d 206), but those cases involved factual stories about actual poeple. In the case at bar, Doubleday had beed assured by Mitchell that no actual, identifiable person was involved and that all the characters were fictitious in the novel. Where the publication comes from a known reliable source and there is nothing in the circumstances to suggest inaccuracy, there is no duty to investigate. (See Baldine v. Sharon Herald Co. (3d Cir. 1968) 391 F.2d 703, 707.) There was nothing in the record to suggest that, prior |
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to the hardback printing, defendant Doubleday in fact entertained serious doubts as to the truth or falsity of the publication, and investigatory failure alone is insufficient to find actual malice. |
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However, prior to the paperback printing there were surrounding circumstances to suggest inaccuracy, such that at that point Doubleday had a duty to investigate. Plaintiff did show that Doubleday sold the rights to the New American Library after receiving a letter from plaintiff’s attorney explaining that plaintiff was Herford and the inscription in the paperback said, “This is an authorized edition published by Doubleday and Company.” Although, after the receipt of the plaintiff’s attorney’s letter, Doubleday again inquired of Mitchell as to whether plaintiff was the character in the book, the jury was entitled to find that Mitchell’s assurance to Doubleday was not sufficient to insulate Doubleday from liability and that Doubleday had some further duty to investigate. The jury could have inferred that at that point Doubleday either had serious doubts, or should have had serious doubts, as to the possibility that plaintiff was defamed by “Touching” and that at that point Doubleday had some duty to investigate. |
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II |
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For similar reasons, the award for punitive damages against Doubleday may stand. A public figure in a defamation case may be awarded punitive damages when there is “actual malice” under the New York Times standard (Maheu v. Hughes Tool Co. (9th Cir. 1977) 569 F.2d 459), and, as we have said above, actual malice was established for Doubleday. The trial court below erroneously struck the award of punitive damages against Doubleday, on the ground that the jury did not award even token punitive damages against Mitchell although she had $165,000 in community property. The judge reasoned that the jury apparently found no fault or “malice attributable to her.” However, the jury must have found that Mrs. Mitchell had “actual malice” to have awarded even compensatory damages against her. And the standard for punitive damages for libel of a public figure is “actual malice,” under the New York Times case, not hatred. Since all that is required for punitive damages of a public figure is actual malice and not hatred (see Maheu v. Hughes Tool Co., supra), and since both Doubleday and Mitchell had |
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“actual malice,” it follows that punitive damages could have been awarded against both defendants. But since punitive damages are discretionary and wealth may be taken into account (see Sandoval v. Southern Cal. Enterprises, Inc. (1950) 98 Cal. App. 2d 240, 250 [219 P.2d 928]), it was proper to award punitive damages only against one defendant, and not the other. |
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III |
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Appellants claim that, even if there are untrue statements, there is no showing that plaintiff was identified as the character, Simon Herford, in the novel “Touching.” |
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Appellants allege that plaintiff failed to show he was identifiable as Simon Herford, relying on the fact that the character in “Touching” was described in the book as a “fat Santa Claus type with long white hair, white sideburns, a cherubic rosy face and rosy forearms” and that Bindrim was clean shaven and had short hair. Defendants rely in part on Wheeler v. Dell Publishing Co. (7th Cir. 1962) 300 F.2d 372, which involved an alleged libel caused by a fictional account of an actual murder trial. The Wheeler court said (at p. 376): “In our opinion, any reasonable person who read the book and was in a position to identify Hazel Wheeler with Janice Quill would more likely conclude that the author created the latter in an ugly way so that none would identify her with Hazel Wheeler. It is important to note that while the trial and locale might suggest Hazel Wheeler to those who knew the Chenoweth family, suggestion is not identification. In Levy [ Levey v. Warner Bros. Pictures (S.D.N.Y. 1944) 57 F.Supp. 40] the court said those who had seen her act may have been reminded of her by songs and scenes, but would not reasonably identify her.” However, in Wheeler the court found that no one who knew the real widow could possibly identify her with the character in the novel. In the case at bar, the only differences between plaintiff and the Herford character in “Touching” were physical appearance and that Herford was a psychiatrist rather than psychologist. Otherwise, the character Simon Herford was very similar to the actual plaintiff. We cannot say, as did the court in Wheeler, that no one who knew plaintiff Bindrim could reasonably identify him with the fictional character. Plaintiff was identified as Herford by several witnesses and plaintiff’s own tape recordings of the marathon sessions show that the novel was based substantially on plaintiff’s conduct in the nude marathon. |
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Defendant also relies on Middlebrooks v. Curtis Publishing Co. (4th Cir. 1969) 413 F.2d 141, where the marked dissimilarities between the fictional character and the plaintiff supported the court’s finding against the reasonableness of identification. In Middlebrooks, there was a difference in age, an absence from the locale at the time of the episode, and a difference in employment of the fictional character and plaintiff; nor did the story parallel the plaintiff’s life in any significant manner. In the case at bar, apart from some of those episodes allegedly constituting the libelous matter itself, and apart from the physical difference and the fact that plaintiff had a Ph.D., and not an M.D., the similarities between Herford and Bindrim are clear, and the transcripts of the actual encounter weekend show a close parallel between the narrative of plaintiff’s novel and the actual real life events. Here, there were many similarities between the character, Herford, and the plaintiff Bindrim and those few differences do not bring the case under the rule of Middlebrooks. (See Fetler v. Houghton Mifflin Co. (2d Cir. 1966) 364 F.2d 650.) There is overwhelming evidence that plaintiff and “Herford” were one. |
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IV |
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However, even though there was clear and convincing evidence to support the finding of “actual malice,” and even though there was support for finding that plaintiff is identified as the character in Mitchell’s novel, there still can be no recovery by plaintiff if the statements in “Touching” were not libelous. There can be no libel predicated on an opinion. The publication must contain a false statement of fact. (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal. 3d 596 [131 Cal. Rptr. 641, 552 P.2d 425].) |
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Plaintiff alleges that the book as a whole was libelous and that the book contained several false statements of fact. Plaintiff relies in part on the above quoted conversation between plaintiff and the minister as one libelous statement of fact. Plaintiff also argues that a particular incident in the book is libelous. That incident depicts an encounter group patient as so distressed upon leaving from the weekend therapy that she is killed when her car crashes. Plaintiff also complains of an incident in the book where he is depicted as “pressing,” “clutching,” and “ripping” a patient’s cheeks [buttocks?] and “stabbing against a pubic bone.” Plaintiff complains, too, of being depicted as having said to a female patient, “Drop it, bitch.” There are also other incidents alleged to be libelous. |
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Our inquiry then, is directed to whether or not any of these incidents can be considered false statements of fact. It is clear from the transcript of the actual encounter weekend proceeding that some of the incidents portrayed by Mitchell are false: i.e., substantially inaccurate description of what actually happened. It is also clear that some of these portrayals cast plaintiff in a disparaging light since they portray his language and conduct as crude, aggressive, and unprofessional. |
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Defendants here rely on the cases which have considered the difference in published materials between factual statements and matters of mere opinion. While, as we discuss below, we do not feel that those cases necessarily express the rules applicable where, as here, the published material purports to state actual facts concerning the characters in a novel, we proceed, first, to examine the cases on which defendants rely. |
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Many cases discuss the difference between fact and opinion. The court in Greenbelt Pub. Assn. v. Bresler (1970) 398 U.S. 6 [26 L.Ed.2d 6, 90 S.Ct. 1537], examined the use of the term “blackmail” in a controversy between the parties over zoning, and found that, although the use of that term in some circumstances could constitute libel, in the Bresler case the term was being used figuratively and did not connote actual commission of a crime. |
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In Letter Carriers v. Austin (1974) 418 U.S. 264 [41 L.Ed.2d 745, 94 S.Ct. 2770], Jack London called someone a “scab,” and defined the term with the phrase as a “traitor to his God, his country, his family and his class.” (Id., at p. 268 [41 L.Ed.2d, at p. 753].) Again, the Austin court held that the statements were used loosely and figuratively, and there was no libel in the use of the term “traitor.” Thus, words that appear factual at first glance, such as “blackmail,” and “traitor” may not be factual, depending on the context in which they were used, and whether they were used figuratively. |
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The courts have set guidelines in determining what is fact and what is opinion. One guideline is that an alleged defamatory statement may constitute a fact in one context and an opinion in another and content of the communication is taken as a whole. In certain settings fiery rhetoric and hyperbolic statements of fact may well assume the character of opinion. (Gregory v. McDonnell Douglas Corp. (1976) supra, 17 Cal. 3d 596.) Where the statements are unambiguously fact or opinion, Gregory applies, and the court determines as a matter of law whether the statements are fact or opinion. However, where the alleged defamatory |
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remarks could be determined either as fact or opinion, and the court cannot say as a matter of law that the statements were not understood as fact, there is a triable issue of fact for the jury. (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal. 3d 672 [150 Cal. Rptr. 258, 586 P.2d 572].) |
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If viewed as a case involving an issue of “opinion,” those cases, and other cases involving that issue, make it clear that, since there was evidence that people had identified plaintiff with the Dr. Herford of the book, the jury’s finding against defendants is conclusive on that issue. |
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However, as we have indicated above, we regard the case at bench as involving a different issue. Defendants contend that the fact that the book was labeled as being a “novel” bars any claim that the writer or publisher could be found to have implied that the characters in the book were factual representations not of the fictional characters but of an actual nonfictional person. That contention, thus broadly stated, is unsupported by the cases. The test is whether a reasonable person, reading the book, would understand that the fictional character therein pictured was, in actual fact, the plaintiff acting as described. (Middlebrooks v. Curtis Publishing Co. (4th Cir. 1969) supra, 413 F.2d 141, 143.) Each case must stand on its own facts. In some cases, such as Greenbelt Pub. Assn. v. Bresler (1970) supra, 398 U.S. 6, an appellate court can, on examination of the entire work, find that no reasonable person would have regarded the episodes in the book as being other than the fictional imaginings of the author about how the character he had created would have acted. Similarly, in Hicks v. Casablanca Records (S.D.N.Y. 1978) 464 F.Supp. 426, a trier of fact was able to find that, considering the work as a whole, no reasonable reader would regard an episode, in a book purporting to be a biography of an actual person, to have been anything more than the author’s imaginative explanation of an episode in that person’s life about which no actual facts were known. We cannot make any similar determination here. Whether a reader, identifying plaintiff with the “Dr. Herford” of the book, would regard the passages herein complained of as mere fictional embroidering or as reporting actual language and conduct, was for the jury. Its verdict adverse to the defendants cannot be overturned by this court.More coment from Larry Pollack Esq.:Of course, come to think of it, that’s not to say the fictionalized version isn’t funny as well. But the actual transcript–well, let’s just say that the snake in the Garden of Eden would’ve been proud of Dr. Bindrim. As the good Dr. Feelgood tries to coax the minister into bringing his wife to a nude session, the minister confides that he simply can’t imagine his wife participating in a nude encounter session, then realizes, come to think of it, that not too long ago, when he was living a normal, Christian minister’s life, he couldn’t have imagined himself in such a session!So what’s going on here? Is this really a case of defamation, of “actual malice” against a public figure? Why did the doctor stipulate that he even was a “public figure,” thereby requiring the higher threshold of “actual malice by clear and convincing evidence” required by the U.S. Supreme Court in the landmark case of N.Y. Times Co. v. Sullivan? Seems to me that this case was really about a breach of contract–the contract the writer/defendant signed not write about her sessions. Because of the confines of contract law–what are the damages for breach of that contract, anyway?–the plaintiff’s attorney cleverly pleaded the matter in the form of a defamation action seeking punitive damages against the publishing company–which was not a party to the contract. As for actual malice, here the tail wagged the dog; by stipulating that he was a public figure and that actual malice was required, plaintiff actually seems to be compelling the jury to find that since he was a public figure, the publication must have been malicious–enough to justify a punitive damages award. The moral of this story, stripped to its bare essentials?OFTEN, THE PLAINTIFF HAS A DECISIVE ADVANTAGE IN HIS ABILITY TO FRAME THE NATURE OF THE CAUSE OF ACTION IN BOTH THE PLEADINGS AND THE PRESENTATION AT TRIAL.
I guess plaintiff’s attorney grabbed the jury by its **** and the jury saw through defendant’s naked gambit. Incidentally, defendant was paid an advance of $150,000, a particularly hefty sum when you consider that it was over 35 years ago. Since the total judgment was only $38,000, you can hardly say that plaintiff took the shirt off defendant’s back. Maybe that’s why the Bindrim court groped its way through an opinion that otherwise leaves little to the imagination.
Final Thought: Didn’t the ancient Greeks run their marathons (as well as all their olympic events) in the nude? Hmm. Perhaps the Greek government should file to copyright the term “nude marathon.” |
