Appeal from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. WEC139685 consolidated with SC003094. Hon. Richard G. Harris, Judge Presiding.
Review Granted September 25, 1996 (S054868), [Reprinted without change to permit tracking pending Disposition on review by the Supreme Court. (See Preface to Cumulative Subsequent History Table. Previous cites 46 Cal. App. 4th 11.)].
Gold (Arnold H.), J.* ; Lillie, P.j. and Woods, J., Concurring.
The opinion of the court was delivered by: Gold
FACTS AND PROCEEDINGS BELOW
In the April 4, 1989 issue of its tabloid The Globe, defendant Globe International, Inc. ("Globe") published an article headlined "Former CIA agent claims: IRANIANS KILLED BOBBY KENNEDY FOR THE MAFIA." The article was the subject of the following reference on the front page of the issue: "Iranian secret police killed Bobby Kennedy." The article was written by John Blackburn, a reporter who had worked for Globe as an employee and a free-lance reporter for nearly five years. The article reported on a previously published book entitled The Senator Must Die: The Murder of Robert F. Kennedy, written by Robert Morrow and published in November 1988 by Roundtable Publishing. Robert Morrow is a conspiracy theorist who has also written a book about the assassination of John F. Kennedy entitled Betrayal, published in 1976. As background for the article, Blackburn allegedly read Morrow's entire book and conducted an in-depth interview of the author.
The theory set forth by Morrow in The Senator Must Die is that Robert Kennedy was assassinated by the Iranian Secret Police working in conjunction with the Mafia, and that the true assassin was not Sirhan Sirhan, but a man who called himself Ali Ahmand. The book contained four photographs which appeared beneath the caption, "Photographs of Ali Ahmand." These photos depicted Plaintiff Khalid Iqbal Khawar standing on the podium near Robert Kennedy on the night of the assassination in June of 1968 at the Ambassador Hotel in Los Angeles. Plaintiff Ali Ahmad is in fact the father of respondent Khawar.
In 1968, Khawar, who at the time was a citizen of Pakistan, obtained a position as a free-lance photojournalist for a Pakistani periodical during the presidential election campaign of 1968. On the night of the assassination Khawar was photographed on the podium near Senator Kennedy, but he never actually entered the pantry area of the hotel where the fatal shots were fired. After the assassination, Khawar was involved in the investigations of the Los Angeles Police Department and the Federal Bureau of Investigation as one of many participants in the campaign event. A few authors have posed questions as to Khawar's activities on June 4, 1968, including Morrow as well as Robert Blair Kaiser in his book RFK Must Die, published in 1970. Nevertheless, no official questions have ever been raised concerning Khawar's activities during any phase of his work on the campaign.
The April 1989 article in The Globe was accompanied by a photo of Khawar which had previously been published in Morrow's book. Globe added an arrow which pointed to Khawar. Following its publication Khawar received a telephone call from one of his ex-employees, informing him of the story. He received calls regarding the article from places as distant as New Jersey and Bangkok. He and his children received death threats. His house was vandalized, as was his son's car.
On August 31, 1989, Khawar filed suit against Globe, Roundtable and Morrow, alleging that the Globe article and Morrow's book had defamed him. Ahmad filed a defamation suit against the same defendants on November 29, 1989. On September 16, 1991, the two actions were consolidated.
Before trial, both Khawar and Ahmad settled with Roundtable and a Morrow's default was entered. Khawar and Ahmad sought a judgment against Morrow for two million dollars. A jury trial ensued on the claims of Khawar and Ahmad against Globe. However, pursuant to the trial court's power as specified in Code of Civil Procedure Section 592, on two issues the jury's verdict was to be advisory only: (1) Whether Khawar was a public or a private figure, and (2) whether Globe's article was a "neutral report" concerning Morrow's book. At the end of the plaintiffs' case on March 17, 1994, the trial court granted Globe's motion for a nonsuit with respect to Ahmad on the ground that the Globe article was not "of and concerning" Ahmad.
At the Conclusion of the trial, the jury found that: (1) The article was a neutral and accurate report of the statements made by Morrow in his book; (2) Khawar was a private figure; (3) Globe published its article negligently and either knowing that the defamatory statements were false or with reckless disregard of whether the defamatory statements were true or false; and (4) Globe published the article with malice or oppression. The jury assessed damages in favor of Khawar against Globe as follows: $100,000 for harm to Khawar's reputation; $400,000 for emotional distress; and $175,000 in presumed damages. Following a separate punitive damage phase, the jury awarded an additional $500,000 in punitive damages.
The trial Judge disagreed with the jury's finding that the article was a neutral and accurate report but allowed the jury's finding that Khawar was a private figure to stand. A judgment in favor of Khawar and against Globe for $1,175,000 as found by the jury was entered on April 15, 1994. *fn1
Globe filed a timely notice of appeal from the April 15, 1994 judgment in favor of Khawar. Ahmad filed a notice of appeal from the April 15, 1994 judgment also, but that judgment contained no provisions concerning Ahmad. (While a minute order noting the granting of Globe's motion for directed verdict against Ahmad was created when that motion was granted on March 17, 1994, the impact of the granting of that motion was not embodied in any judgment entered prior to the filing of Ahmad's notice of appeal.) On April 3, 1996, the April 15, 1994 judgment was amended nunc pro tunc as of April 15, 1994 to add: "Plaintiff Ali Ahmad shall have and recover nothing from defendant Globe International, Inc." -- thereby curing the defect in Ahmad's notice of appeal.
Globe contends that this Court should reverse the judgment below for the following reasons: (1) Khawar should be classified as a public figure, thereby allowing the Globe article to be privileged under the doctrine of neutral reportage; (2) The trial court exceeded its authority by disregarding the jury's finding of a neutral and accurate report; (3) There was no evidence to support a finding that Globe published its article with malice or reckless disregard; (4) Even if Khawar is labeled a private figure, the jury's finding of a neutral and accurate report precludes a finding of negligence; (5) Permitting the so-called scientific testimony of Gavin De Becker constituted reversible error; and (6) The submission of numerous jury instructions left the jury without proper guidance and completely confused. After an independent examination of the entire record, we find no merit in any of these contentions and consequently affirm the judgment as against Globe.
The only contention asserted by Ahmad on appeal is that the trial court's granting of Globe's motion for a nonsuit on the ground that the article was not "of and concerning" Ahmad was improper. Again, following our independent examination of the entire record, we reject Ahmad's contention and affirm the judgment as against Ahmad.
I. ONE WHO REPEATS OR REPUBLISHES A DEFAMATORY STATEMENT IS ORDINARILY AS LIABLE THEREFOR AS THE ORIGINAL PUBLISHER.
It is truly hornbook law that "[with an exception not here relevant,] one who repeats or otherwise republishes defamatory matter is subject to liability as if he had originally published it." (Rest. Torts 2d, Section 578.) California has recognized this principle for exactly 100 years:
"If A. says B. is a thief, and C. publishes the statement that A. said B. was a thief, in a certain sense this would be the truth, but not in the sense that the law means. It would be no defense to C., for it would be but a repetition by him of a slanderous charge. His defense must consist in showing that in fact B. was a thief." ( Gilman v. McClatchy (1896) 111 Cal. 606, 612, 44 P. 241. Accord, e.g., Cianci v. New Times Publishing Co. (2d Cir. 1980) 639 F.2d 54, 60-61; and authorities from other jurisdictions collected there.)
There are a number of statutory exceptions to this general principle, but none applies to the fact situation presented by the case at bar. (See, e.g., Civ. Code §§ 43.8, 47, 48.5, 48.7, 48.9.) However, Globe asserts that a privilege created by case law, called the "neutral reportage privilege," immunizes it against liability here. We shall consider the extent (if at all) to which that privilege exists in California in Point III, infra, after considering a preliminary question in Point II.
II. THE TRIAL COURT'S FINDING THAT RESPONDENT KHAWAR WAS A PRIVATE FIGURE IS SUPPORTED BY THE EVIDENCE AND THE LAW.
The question of whether a plaintiff is a public or private figure is to be determined by the court, not the jury. (Stolz v. KSFM 102 FM (1994) 30 Cal. App. 4th 195, 203-204 [35 Cal. Rptr. 2d 740].) A trial court's decision on this issue is a mixed question of law and fact. The trial Judge must examine the underlying facts and upon that basis conclude, as a matter of law, whether or not a plaintiff is a public figure. When an appellate court is called upon to review the trial court's decision in this regard, the appropriate standard of review is whether, after an independent review of the entire record, substantial evidence supports the trial court's decision. ( Weingarten v. Block (1980) 102 Cal. App. 3d 129, 134-35, 142-43 [162 Cal. Rptr. 701], cert. denied, 449 U.S. 899, 101 S. Ct. 267, 66 L. Ed. 2d 128 (1980).)
An individual may become a public figure in several ways. One way is to be classified as a general public figure, namely, a person who has achieved such pervasive fame or notoriety that he or she becomes a public figure for all purposes and in all contexts. ( Mosesian v. McClatchy Newspapers (1991) 233 Cal. App. 3d 1685, 1689 [285 Cal. Rptr. 430], cert. denied, 504 U.S. 912, 112 S. Ct. 1946, 118 L. Ed. 2d 551 (1992); Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351 [41 L. Ed. 2d 789, 812, 94 S. Ct. 2997, 3008].) Another way is to become a limited-purpose public figure. These are people who have either voluntarily injected themselves into a particular public controversy, or who have been drawn into such a controversy. The former are termed voluntary limited-purpose public figures; the latter are termed involuntary limited-purpose public figures. These people become public figures regarding the particular issue or controversy with which they are associated. (Ibid.)
Globe contends that respondent Khawar is an involuntary limited-purpose public figure because of his proximity to the events which occurred the night of the assassination of Robert Kennedy. Additionally, Globe asserts that Khawar's appearance on a television program after publication of the Globe article supports his classification as a public figure. We hold that the trial Judge's decision that Khawar was a private figure is supported by substantial evidence and by the law.
In Brown v. Kelly Broadcasting (1989) 48 Cal. 3d 711 [257 Cal. Rptr. 708, 771 P.2d 406], the California Supreme Court held that a publication or broadcast by a member of the news media to the general public regarding a private person is not privileged under Civil Code section 47, subdivision (c) *fn2 regardless of whether the communication concerns a matter of public interest. The defendant argued that the plaintiff was a public figure and would consequently have to prove malice on the part of the defendant in order to recover for the alleged defamation. In its Discussion, the California Supreme Court addressed the boundaries of the limited-purpose public figure classification. *fn3 It held that a person is not a public figure merely because he or she happens to be involved in a controversy that is newsworthy. (Accord, Time, Inc. v. Firestone (1976) 424 U.S. 448, 452-55 [47 L. Ed. 2d 154, 161-64, 96 S. Ct. 958]). In order to be classified as a limited-purpose public figure, an individual must have undertaken some voluntary act through which he or she seeks to influence the resolution of the public issue involved. Furthermore, when called upon to make a determination of limited-purpose public figure status, courts should look for evidence of affirmative actions by which the individual has thrust himself or herself into the forefront of a particular public controversy. ( Reader's Digest Ass'n v. Superior Court (1984) 37 Cal. 3d 244, 254-55 [208 Cal. Rptr. 137, 690 P.2d 610]; Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal. 3d 763, 768-69 [160 Cal. Rptr. 97, 603 P.2d 14], cert. denied, 449 U.S. 886, 101 S. Ct. 242, 66 L. Ed. 2d 113 (1980).) In the case at bar, the trial court held that Khawar's appearance on the podium in the ballroom did not make him an involuntary public figure within the context of the assassination which actually occurred in the pantry, an area Khawar never entered. This court concurs in that analysis. Khawar's affirmative actions, namely, attendance at the Kennedy campaign rally and appearance on the podium near Senator Kennedy, do not rise to the level of action by which the purported public figure thrust himself into the forefront of a public controversy. Khawar undertook no voluntary act which sought to influence the resolution of a public issue.
The United States Supreme Court stated in Gertz v. Robert Welch, Inc., supra, 418 U.S. at 352, that a court must focus on "the nature and extent of an individual's participation in the particular controversy giving rise to the defamation." As discussed within the context of the Brown holding, Khawar's action of appearing on the podium at the rally is not sufficient in nature and extent to suggest that Khawar undertook voluntary action which elevated his status to the level of a public figure. The United States Supreme Court also held in Wolston v. Reader's Digest Ass'n., Inc., (1979) 443 U.S. 157, 167, 99 S. Ct. 2701, 61 L. Ed. 2d 450, that "[a] private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention." As such, Khawar's involvement as one of many participants in the events leading up to the assassination does not automatically classify him as a public figure. Additionally, as Justice Blackmun stated in his Concurring opinion in Wolston, the passage of time often will be relevant in deciding whether a person possesses the characteristics of a public figure. (443 U.S. at 170. See also Briscoe v. Reader's Digest Assn., Inc. (1971) 4 Cal. 3d 529, 537-540, 93 Cal. Rptr. 866, 483 P.2d 34.) The trial court followed this line of reasoning when it stated that the lapse of twenty years since the Robert Kennedy assassination was sufficient to reduce any arguable public figure status of Khawar to that of a private figure.
Khawar did give an interview in 1989 to television station KERO in Bakersfield in order to rebut the charges made by Globe. *fn4 Khawar was privileged to conduct this interview in order to protect his own interests without sacrificing his status as a private figure. The Fourth Circuit held in Foretich v. Capital Cities/ABC, Inc. (4th Cir. 1994) 37 F.3d 1541, 1558, that "A person who has been publicly accused of committing an act of serious sexual misconduct that would be punishable by imprisonment cannot be deemed a 'limited-purpose public figure' merely because he or she makes reasonable public replies to those accusations." The court reasoned that it did not want to "attribute public figure status to otherwise private persons merely because they had responded to such accusations in a reasonable attempt to vindicate their reputations." Having been accused of assassinating Robert Kennedy in the Globe article, a crime which would certainly be punishable by imprisonment and generate public outrage, Khawar's interview with the local television station in Bakersfield was an attempt to vindicate his reputation. His status as a private figure was not raised to the level of a limited-purpose public figure merely because of his involvement with the media in this one interview. (See also Time, Inc. v. Firestone, supra, 424 U.S. at 455 fn. 3.)
In Denney v. Lawrence, (1994) 22 Cal. App. 4th 927 [27 Cal. Rptr. 2d 556], the Court of Appeal held that the plaintiff was a limited-purpose public figure because he had voluntarily involved himself in the controversy surrounding his brother's arrest, conviction, and sentencing. Plaintiff had given press interviews which promoted his version of the case and had attempted to influence public opinion as to the circumstances surrounding his brother's case. The court's holding in Denney is instructive in an analysis of the action taken by Khawar. Khawar merely rebutted the charges made against him in the Globe article in a lone interview on a Bakersfield television station. He did not attempt to influence public debate or become involved in the controversy surrounding the assassination of Robert Kennedy. His only involvement was to rebut the actual libel. Because he did not involve himself in the public debate of the underlying issue -- the assassination of Robert Kennedy -- he is properly distinguished from the plaintiff in Denney whose actions elevated his status to a limited-purpose public figure. Under the analysis in Denney, Khawar's actions do not raise him above the status of a private figure.
In sum, the evidence and the law justify the trial Judge's finding that Respondent Khawar was a private figure, not a limited-purpose public figure. He undertook no voluntary action which brought him into the center of a public controversy, and he took no part in any attempt to shape opinion on the resolution of a public issue.
III. CALIFORNIA HAS NOT ADOPTED THE NEUTRAL REPORTAGE PRIVILEGE WITH RESPECT TO PRIVATE FIGURES.
In 1977 a privilege, which has become known as the "neutral reportage privilege," was created by the Second Circuit in Edwards v. National Audubon Society, Inc. (2d Cir. 1977) 556 F.2d 113, cert. denied, 434 U.S. 1002, 54 L. Ed. 2d 498, 98 S. Ct. 647. That privilege protects against an action for defamation the accurate and disinterested reporting of charges by others that are themselves newsworthy. In other words, it protects the accurate and disinterested reporting of charges made by others that are of public interest because they were uttered and not necessarily because of what they say. In order to qualify for the protection afforded by this privilege, the existence of four essential elements must be demonstrated: (1) the charges must be newsworthy charges that create or are associated with a public controversy; (2) the charges must made by a responsible and prominent source; *fn5 (3) the charges must be reported neutrally and accurately; and (4) the charges must be about a public official or public figure.
The "neutral reportage privilege" has been adopted in some jurisdictions and rejected in others. *fn6 We are aware of no reported state court case in California deciding whether the neutral reportage privilege exists in the state. *fn7 For a reason we are about to discuss, we will not reach the question of whether the neutral reportage privilege exists in California.
Globe contends that even if Khawar is classified as a private figure, many courts have held that the neutral reportage privilege set forth in Edwards encompasses the right to report an allegation concerning a private figure. As authority for this contention Globe cites April v. Reflector-Herald, Inc., (1988) 46 Ohio App. 3d 95, 98, [546 N.E.2d 466]. While this case may be persuasive within its jurisdiction, it is not binding upon this court. An examination of California precedent leads us to conclude that in this state there is no neutral reportage privilege applicable to situations involving private figures.
To begin with, there are two reported United States District Court cases in point: Barry v. Time, Inc. (N.D. Cal. 1984) 584 F. Supp. 1110, 1127, stated that
"the neutral reportage privilege . . . is not without limitations. It cannot be used as an absolute privilege to republish defamatory statements about purely private persons not already caught up in a public controversy. The privilege applies where the defamed person is a public figure, whether general or limited, who is involved in an existing controversy." (Emphasis added.)
*fn8 Next, in Crane v. Arizona Republic (C. D. Cal. 1989) 729 F. Supp. 698, 710-711, the District Judge noted the existence of the neutral reportage doctrine and its application in the Barry case to a public figure. However, the District Judge then stated:
"The Court of Appeals for the Ninth Circuit has neither adopted nor rejected this doctrine. Only the Court of Appeals for the Second Circuit in Edwards v. National Audubon Society, 556 F.2d 113, 115 (2d Cir. 1977), and ahandful of district courts have adopted the doctrine. Many courts have rejected the doctrine. See Note, The Developing Privilege of Neutral Reportage, 69 Va.L.Rev. 853, 863-65 (1983) (collecting cases). This court need not adopt or reject this doctrine in rendering its decision . . . as the facts of this case [including the fact that one of the plaintiffs was not a ...