United States District Court, Northern District of California, San Jose Division
July 31, 2000
IN RE CABLE NEWS NETWORK AND TIME MAGAZINE "OPERATION TAIL WIND" LITIGATION THIS ORDER RELATES TO: SHEPPARD. ET AL.
CABLE NEWS NETWORK. INC., ET AL., CASE NO. C-98-20946.
The opinion of the court was delivered by: Fogel, District Judge.
ORDER RE APPLICATION OF CALIFORNIA CIVIL CODE § 48a TO CLAIMS BASED
UPON THE TIME MAGAZINE ARTICLE
This order addresses the applicability of California Civil Code §
48a to the claims asserted in Sheppard. et al. v. Cable News
Network. Inc., et al., Case No. C-98-20946, one of the seven cases
collectively known as the "Operation Tailwind" litigation.*fn1 Pursuant
to § 48a, a plaintiff asserting a defamation claim based upon a
publication in a newspaper, radio broadcast or television broadcast may not
recover general damages unless the plaintiff serves a written demand for
retraction upon the publisher within twenty days after notice of the
publication. When such a demand is not made, the plaintiff is limited to
recovery of special damages, defined as "all damages which plaintiff
alleges and proves that he has suffered in respect to his property,
business, trade, profession or occupation, including such amounts of
money as the plaintiff alleges and proves he has expended as a result of
the alleged libel." Cal. Civ. Code § 48a(4)(b).
The five Sheppard plaintiffs assert defamation claims based upon two
broadcasts aired by Defendant Cable News Network, Inc. ("CNN") and one
magazine article published by Time, Inc. ("Time"). The Court previously
ruled that § 48a applies to the broadcasts aired by CNN; that
Plaintiffs have not alleged a sufficient demand for retraction; and that
only two of the five plaintiffs, Sheppard and Graves, have alleged
special damages with adequate particularity. Accordingly, the Court held
that only Sheppard and Graves may proceed with defamation claims based
upon the CNN broadcasts. The Court left open the question of whether
§ 48a applies to the Time article, holding that the statute applies
if Time is a publication which disseminates "breaking news" but
concluding that the current record lacks sufficient information to
determine whether Time is such a publication.*fn2
Thereafter, the Court sua sponte raised the issue of whether § 48a
should be applied to the Time article as to these particular plaintiffs
regardless of whether Time is a publication which disseminates breaking
news. It is clear that the Time article, standing alone, cannot support a
defamation claim by these plaintiffs because the Time article does not
identify them and thus does not satisfy the "of and concerning"
requirement. See Blatty v. New York Times Co., 42 Cal.3d 1033, 1042
(1986) (stating that an alleged defamatory statement must be "of and
concerning" the plaintiff in order to be actionable). Plaintiffs' theory
therefore is that the CNN broadcasts and the Time article were marketed
as a single "package," and that because the CNN broadcasts identified
Plaintiffs the "of and concerning" requirement also is satisfied with
respect to the Time article. Assuming that the identifying material
contained in the CNN broadcasts can be imported into the Time article in
this manner,*fn3 there thus remains a
question as to whether the §
48a limitation applicable to the broadcasts likewise should be imported
into the Time article.
After requesting and receiving supplemental briefing, the Court
concludes that § 48a must be applied to the claims based upon the
Time article. The viability of those claims depends upon the identifying
information contained in the CNN broadcasts, which themselves are subject
to § 48a. It would be inconsistent to impose the special damages
limitation of § 48a to claims based directly on the CNN broadcasts
but not to claims dependent upon on the same broadcasts.
This Court previously has expressed reservations about applying §
48a in this case. The legislative history of § 48a indicates that
this statute was enacted to protect purveyors of breaking news. At the
time the statute was amended to cover television broadcasts the
Legislature likely had not even contemplated magazine-style broadcasts
such as those at issue here. Plaintiffs reasonably have suggested that
the "Operation Tailwind" reports did not contain breaking news and that
application of § 48a in these circumstances likely was not foreseen
by the California Legislature. The Court nonetheless has applied §
48a to the CNN broadcasts because the plain statutory language makes
§ 48a applicable to all television broadcasts. Plaintiffs now argue
that no such plain language compels application of the statute to the
Plaintiffs argument is appealing in light of the Court's policy
concerns about applying § 48a to the "Operation Tailwind"
broadcasts. However, given the statute's explicit application to the
broadcasts and Plaintiffs' own assertion that the broadcasts and article
are inextricably intertwined-in that material in the broadcasts must be
read into the article in order to breathe life into claims based upon the
latter-the Court concludes that under the specific circumstances of this
case it has no choice but to apply § 48a to the article as well.
Of the plaintiffs asserting defamation claims based upon the Time
article, only Sheppard has alleged special damages with adequate
specificity. Accordingly, only Sheppard will be permitted to proceed with
defamation claims based upon the Time article; the defamation claims of
all other plaintiffs based upon the Time article are dismissed without
leave to amend.
IT IS SO ORDERED.