Opinion
12-12-1958
Grover MacLEOD, Plaintiff and Appellant, v. TRIBUNE PUBLISHING CO., Inc., a California Corporation, et al., Defendants and Respondents. * Civ. 17783.
Graves & MacLeod, Oakland, for appellant. Price, Macdonald & Knox, John Charles Houlihan, Oakland, for respondent.
Grover MacLEOD, Plaintiff and Appellant,
v.
TRIBUNE PUBLISHING CO., Inc., a California Corporation, et al., Defendants and Respondents. *
Dec. 12, 1958.
Rehearing Denied Jan. 9, 1959.
Hearing Granted Feb. 4, 1959.
Graves & MacLeod, Oakland, for appellant.
Price, Macdonald & Knox, John Charles Houlihan, Oakland, for respondent.
PETERS, Presiding Justice.
Grover MacLeod, a candidate for the City Council of Oakland in the election of April, 1955, brought this action against the Tribune Publishing Co., claiming that an article published in the Oakland Tribune had libeled him. The trial court sustained the general and special demurrer of defendant without leave to amend. Judgment was entered in favor of defendant. Plaintiff appeals.
The demurrer here involved was sustained, without leave to amend, to the original complaint. It is an abuse of discretion to sustain a demurrer without leave to amend to such a complaint, if the pleading, reasonably, can be amended to state a cause of action. Unless it is clear that a defective complaint cannot be amended so as to obviate the objections to it, the plaintiff must be allowed a reasonable opportunity to amend, even if several grounds of the demurrer are good. A request to amend is no longer required. § 472c of the Code Civ.Proc. These principles are well settled. (See, generally, 39 Cal.Jur.2d p. 243, § 167 et seq.)
While this complaint is certainly not a model of pleading, and is undoubtedly deficient in several respects urged in the special demurrer, tested by the standards set forth above, we are of the opinion that it was an abuse of discretion to sustain the demurrer without leave to amend.
The complaint avers that plaintiff is a doctor of dental surgery practicing in Oakland, and that, prior to the publication in the Oakland Tribune here challenged, he enjoyed a good name and reputation in his profession and occupation. The Complaint, in Paragraphs VI and VII, alleges as follows: 'VI
'That on the 19th day of April, 1955, in all the editions of said newspaper, defendants printed, published, and circulated, or caused to be printed, published, and circulated in said newspaper, on the front page thereof, an article or statement in writing in which said defendants falsely and maliciously and with intent to injure, disgrace, and defame plaintiff, used and published the following language of and concerning the plaintiff: "Red Paper Issues Election Extra
"The San Francisco People's World, recognized throughout the state as the mouthpiece of the communist party, distributed a last-minute extra edition in Oakland yesterday, on the eve of the city election.
"It verified reports that the paper is showing unusual interest in Oakland and its city election.
"The Communist-line paper defended the proposal to revive ward politics in Oakland and printed a list of recommendations which included the names of council candidates John F. Quinn, John W. Holmdahl, and Dr. Grover H. MacLeod. It also listed recommendations against police reorganization measures which were endorsed by the Alameda County Grand Jury following its recent investigation.
"The polls are open until 7 p. m. today." 'VII
'That said article and publication was read by the readers of said newspaper at said time and on said occasion in the city of Oakland and in the County of Alameda and throughout the State of California; and that said defendants by said publication intended to be understood by the general public and readers, and it was so understood by them, as charging, asserting, and imputing that this plaintiff was a communist sympathizer or fellow traveler, and that this plaintiff had received a recommendation from 'The San Francisco People's World,' and that the said San Francisco People's World had 'distributed a last-minute extra edition in Oakland' which allegedly contained the recommendation as aforesaid, (when in truth and in fact The San Francisco People's World did not endorse or recommend plaintiff in said article), and all said charges, references, assertions, and imputations were false, malicious, and unprivileged, and were calculated to and did expose plaintiff to hatred, contempt, ridicule, and obloquy, causing him to be shunned and avoided, and proximately caused him to sustain a severe and continuing nervous shock and strain and to suffer great mental anguish, mortification, humiliation, and shame; all to his damage in the sum of $200,000.00'.
In Paragraph VIII it is averred that, as a result of the 'foregoing,' and since the publication of the article, plaintiff has suffered pecuniary loss in that an unusually large percentage of old and established patients have been cancelling appointments, and that there has been a sharp decline in the number of new patients normally to be expected. It is averred that plaintiff has suffered at least $5,000 in special damages as a result. It is also averred that plaintiff served on defendant a demand for retraction as provided in section 48a of the Civil Code, but defendant failed and refused to publish a retraction. The demand is attached to the complaint as an exhibit. Special damages of $5,000, general damages of $200,000, and exemplary damages of $200,000 are prayed for.
The defendant interposed a general and special demurrer to the complaint. In addition to contending that the complaint does not state a cause of action, the demurrer also contends that the complaint does not state a cause of action insofar as it purports to set up an action for the recovery of general or exemplary damages, and that the complaint is fatally defective because it shows on its face that the alleged publication was made by persons interested in the political campaign then pending to persons interested in that campaign, and constituted fair comment. The other 21 grounds of the demurrer relate to the claimed vagueness, uncertainty and unintelligibility of certain portions of the complaint, and need not be considered on this appeal because such defects could obviously be cured by amendment. Special consideration should be given to the 16th ground of the demurrer which challenges the vagueness of plaintiff's allegations of special damage.
The trial court sustained this demurrer without leave to amend, and judgment in favor of defendant was entered. Plaintiff appeals.
At the inception of this appeal we are met by the claim of defendant that plaintiff has effectively admitted the truth of the alleged libelous charge. This contention is predicated upon the assertion that at the argument on the demurrer the trial court had before it a copy of the People's World referred to in the Tribune article. It is asserted that it appears therefrom that the People's World did not directly recommend MacLeod's election, but published the fact that a certain labor group had recommended such election. The gist or sting of the claimed libel is that the Tribune published that the People's World, the 'mouthpiece' of the communist party had recommended MacLeod for office. The article published by the Tribune states that 'The Communist-line paper * * * printed a list of recommendations which included the names of council candidates * * * [including] Dr. Grover H. MacLeod.' Defendant, with apparent seriousness, urges that the Tribune article was truthful because, in fact, the People's World did publish the recommendations of the labor group that had endorsed MacLeod. Therefore it was literally true, so it is contended by defendant, that the People's World printed 'a list of recommendations,' including the name of MacLeod. To make the contention is to refute it. If it be assumed that the People's World did in fact publish a list of labor recommendations including the name of MacLeod, that is not the reasonable interpretation of the Tribune article. That article bluntly states that the 'Communist-line paper * * * printed a list of recommendations' which included the name of Dr. MacLeod. Such statement, inevitably, conveys the thought to the reader that the People's World had recommended the election of Dr. MacLeod. The idea which is now claimed to make the statement truthful--i. e., that the People's World in fact did not recommend the election of MacLeod but published the recommendation of a labor group to that effect--is not even hinted at in the Tribune article. That article conveys the thought that the People's World had recommended MacLeod for election. That is so clear that no further pleading, other than to quote the article, was necessary. But plaintiff went further and pleaded that the defendant by the publication of the article 'intended to be understood by the general public and readers, and it was so understood by them, as charging, asserting, and imputing that this plaintiff was a communist sympathizer or fellow traveler, and that this plaintiff had received a recommendation from 'The San Francisco People's World,' * * * (when in truth or in fact The San Francisco People's World did not endorse or recommend plaintiff in said article.)' These allegations are in accord with the reasonable and proper interpretation of the Tribune article.
We have discussed this contention that the plaintiff has admitted that the Tribune article was truthful because defendant has urged the point with great seriousness, both in its briefs and on oral argument, but in fact and in law the point is not now properly before us. While truth is, of course, a complete defense to a civil action for libel or slander (Draper v. Hellman Commercial Trust & Savings Bank, 203 Cal. 26, 263 P. 240; Chavez v. Times-Mirror Co., 185 Cal. 20, 195 P. 666), truth, unless it appears on the face of the complaint, is a matter of defense and must be pleaded and proved by the defendant. Newby v. Times-Mirror Co., 173 Cal. 387, 160 P. 233; Schomberg v. Walker, 132 Cal. 224, 64 P. 290; Bates v. Campbell, 213 Cal. 438, 2 P.2d 383; Wilson v. Fitch, 41 Cal. 363. What defendant is trying to do is to place before the appellate court on this appeal a claimed admission made at the oral argument on the demurrer which claimed admission does not appear in the pleadings or in the official transcript. Matters not in the pleadings, or not judicially noticed, may not be considered by an appellate court in considering the propriety of a ruling of the trial court sustaining a demurrer. Statements made or claimed to have been made by counsel on oral argument must be disregarded (Favorite v. Superior Court of Riverside County, 181 Cal. 261, 184 P. 15, 8 A.L.R. 290) even though presented by affidavits. Mackay v. Clark Rig Bldg. Co., 5 Cal.App.2d 44, 42 P.2d 341. (See, generally, 39 Cal.Jur.2d 227, § 157.)
The defendant next contends that the complaint fails to allege effectively the falsity of the charge involved. This is an essential allegation, because otherwise, without such denial, the complaint, on its face, necessarily admits the truth of the charge. Chavez v. Times-Mirror Co., 185 Cal. 20, 195 P. 666; Glenn v. Gibson, 75 Cal.App.2d 649, 171 P.2d 118; Mortensen v. Los Angeles Examiner, 112 Cal.App. 194, 296 P. 927; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 186 P.2d 737. These cases hold, properly, that the allegations of falsity must be as broad as the charge itself. The test is, did the plaintiff deny the sting of the libel? In the present case it is alleged that on a specific date the defendant 'falsely and maliciously and with intent to injure, disgrace, and defame plaintiff' published the challenged article; that the article was published with the intent to convey the thought that plaintiff had been endorsed by the People's World 'when in truth and in fact The San Francisco People's World did not endorse or recommend plaintiff in said article'; that all such charges were 'false, malicious, and unprivileged.'
It seems obvious that, for the purpose of a general demurrer, the complaint sufficiently alleges that the libel was false. If it be assumed that a more specific denial was required the trial court should have given the plaintiff the opportunity to amend. Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 186 P.2d 737. A general denial of the truth of an allegedly libelous article is sufficient as against a general demurrer. Wilson v. Stockholders Pub. Co., Inc., 4 Cal.2d 724, 52 P.2d 913; Leonard v. McPherson, 146 Cal. 616, 80 P. 1084; Gallagher v. Chavalas, 48 Cal.App.2d 52, 119 P.2d 408; Chavez v. Times-Mirror Co., 185 Cal. 20, 195 P. 666. Moreover, in the instant case, plaintiff first alleges that the entire article was false and then specifically denies that the People's World had recommended him. The sting of the alleged libel is that the Tribune falsely published a fact, i. e., that a communist newspaper had recommended the plaintiff. A general denial of that fact is all that was required. Such a denial was here made.
The next problem involved, assuming that plaintiff has successfully pleaded the falsity of the publication, is whether or not the publication charged is libelous. The gist of the charge is that defendant published an article falsely representing that a communist newspaper recommended MacLeod for election. The question to be determined is whether the words used in the Tribune article are either libelous per se, or are reasonably capable of conveying the meaning which plaintiff has ascribed to them. In the first instance this is a question of law. Maher v. Devlin, 203 Cal. 270, 263 P. 812; Mellen v. Times-Mirror Co., 167 Cal. 587, 140 P. 277; Bates v. Campbell, 213 Cal. 438, 2 P.2d 383; Keenan v. Dean, 134 Cal.App.2d 189, 285 P.2d 300; Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 237 P.2d 51; Sullivan v. Warner Bros. Theatres, Inc., 42 Cal.App.2d 660, 109 P.2d 760; Vedovi v. Watson & Taylor, 104 Cal.App. 80, 285 P. 418. The innuendo pleaded, that is, the explanation given by plaintiff as to how the words were understood, may not add to, or enlarge upon, the alleged publication. Bates v. Campbell, 213 Cal. 438, 2 P.2d 383; Mellen v. Times-Mirror Co., 167 Cal. 587, 140 P. 277. If the challenged words are libelous without the aid of an innuendo they are libelous per se. § 45a, Civ.Code; Peabody v. Barham, 52 Cal.App.2d 581, 126 P.2d 668.
In determining whether the words are capable of their alleged libelous meaning the test to be applied is the natural and probable effect of the words on the average reader, giving the words their natural and popular construction. Bates v. Campbell, 213 Cal. 438, 2 P.2d 383; Sullivan v. Warner Bros. Theatres, Inc., 42 Cal.App.2d 660, 109 P.2d 760. The court must look to the whole scope and apparent object of the publication. Stevens v. Storke, 191 Cal. 329, 216 P. 371; Dethlefsen v. Stull, 86 Cal.App.2d 499, 195 P.2d 56; Semple v. Andrews, 27 Cal.App.2d 228, 81 P.2d 203. If it is determined by the court that the words are capable of the meaning ascribed to them, then it becomes a question of fact for the jury as to whether or not the readers in fact did understand them in the alleged manner. This court stated the proper rule in Gallagher v. Chavalas, 48 Cal.App.2d 52, 58, 119 P.2d 408, 411, in the following language: 'In other words, the general rule is that before a demurrer to a complaint containing innuendoes may be properly sustained it must appear that the publication is not reasonably susceptible of the defamatory meaning and cannot reasonably be understood in the defamatory sense pleaded; and that where the words used are susceptible of more than one meaning, one of which is the libelous meaning placed upon them by the plaintiff in the allegations of his complaint, then the question of whether the words are defamatory or of innocent import should be left to the jury for determination under proper instructions, even though the covert meaning ascribed to them be improbable. [Citations.]'
In the present case the plaintiff pleads that the 'defendants by said publication intended to be understood by the general public and readers, and it was so understood by them, as charging, asserting, and imputing that this plaintiff was a communist sympathizer or fellow traveler, * * * and all said charges, references, assertions, and imputations were false, malicious, and unprivileged, and were calculated to and did expose plaintiff to hatred,' etc. Thus plaintiff pleads by innueundo that the charge that a communist-line newspaper had endorsed him was understood by the general public to mean that plaintiff was a communist sympathizer or fellow traveler.
In determining whether such a charge is libelous it must first be determined whether a direct false charge that one is a communist or a communist sympathizer is libelous per se or requires a pleading of an innuendo. Prior to and in the early 1940's it was probably the law that a false charge that a person was a communist was not per se libelous and required the pleading of an innuendo as to the public's attitude toward such charge. Gallagher v. Chavalas, 48 Cal.App.2d 52, 119 P.2d 408; Harris v. Curtis Publishing Co., 49 Cal.App.2d 340, 121 P.2d 761. But the alleged libel here involved was printed in 1955, not in 1940. It is our duty to determine the state of mind of the community in 1955. In California the state of mind of the community towards an accusation or imputation that one is a communist was well expressed by our Supreme Court in Black v. Cutter Laboratories, 43 Cal.2d 788, 278 P.2d 905, where it was stated:
'As is hereinafter shown, the true implications of knowing membership in and support of the Communist Party are no longer open to doubt, and the long overworked party line theme that communism is but a political activity has been exposed as a false and fraudulent stratagem designed particularly as a device for securing, in the free nations having government by law, legal support for the 'party' in carrying on to the end of its illegal objectives.' 43 Cal.2d at page 800, 278 P.2d at page 912.
'From the array of congressional and legislative findings which have been quoted above, if not from the common knowledge of mankind, it must be accepted as conclusively established that a member of the Communist Party cannot be loyal to his private employer as against any directive of his Communist master.' 43 Cal.2d at page 806, 278 P.2d at page 916.
In Farr v. Bramblett, 132 Cal.App.2d 36, at page 48, 281 P.2d 372, at page 379, Mr. Justice Dooling stated the applicable principle as follows: 'The complaint that those counts pleading an innuendo ascribe a broader meaning to the words than they can bear in that there is nothing in the advertisements giving 'room for any contention as set forth in the innuendo that plaintiffs were or had been Reds or Communists or Communist sympathizers' overlooks the caption of the first advertisement: 'Get the Reds out of America. Get America out of the Red.' The second advertisement takes its color from the first. We cannot say that the innuendoes are not reasonable ones. The imputation of communism or communist sympathies is a reasonable conclusion to be drawn and must certainly be held libelous as tantamount to calling plaintiffs traitors to their country.' See also Jeffers v. Screen Extras Guild, Inc., 107 Cal.App.2d 253, 237 P.2d 51.
Dean William Prosser in The Law of Torts (2nd ed.) at page 578, published in 1955, citing many authorities, summarizes the law on this subject as follows: '* * * the accusation of membership in the Communist party, or of Communist affiliation or sympathy, which has led to varying conclusions over the last two decades, is at present all but universally regarded as clearly defamatory.' See also cases collected in annotation in 33 A.L.R.2d 1196, at page 1208.
Thus, it is undoubtedly the law that a false charge that one is a communist is defamatory per se. That presents the limited question here involved, namely, whether a false charge that a person has been recommended by a 'Communist-line' newspaper is capable of the imputation that the person is a communist or a communist sympathizer. In determining this question the general principles and tests already discussed must be kept in mind--the natural and probable effect of the words on the average reader; their natural and popular construction; the scope and apparent object of the publication; the reasonable susceptibility of the words imputing the defamatory meaning alleged by plaintiff, etc. The question involved is first one of law--whether the words did in fact carry the meaning imputed to them is a question of fact.
In passing on this question the circumstances under which the defendant published its article must be kept in mind. This allegedly false article was published on the day of a local election. Under such circumstances it is certainly a possible or reasonable inference that the apparent object of defendant was to convey to its readers the thought that plaintiff was unworthy of public office because he was sympathetic to communism. The words alleged are certainly susceptible of the meaning imputed to them, sufficient at least to allow a jury to pass on whether they were in fact so understood.
The false charge that a political candidate has been recommended by the 'Communist-line' newspaper reasonably imputes that the candidate is a communist sympathizer or a 'fellow traveler.' Certainly the difference between charging that one is a communist and that one is a communist sympathizer is a question of degree only. See cases collected in annotation in 33 A.L.R.2d 1196, at page 1212.
In Farr v. Bramblett, 132 Cal.App.2d 36, 281 P.2d 372, 379, the court held that a caption 'Get the Reds out of America. Get America out of the Red' with subsequent references to plaintiff, and to organizations to which he allegedly belonged, was sufficient for the alleged imputation that plaintiff was a communist. A case even closer in point is Grant v. Reader's Digest Ass'n, 2 Cir., 151 F.2d 733, where the court held that it was libelous to write falsely of an attorney that he acted as the legislative representative for the communist party.
The cases cited by defendant on this subject are not helpful, and defendant's claimed summary of them in its brief is misleading. Thus, defendant claims that a charge that 'Plaintiff set his house on fire' was held to be non-defamatory in Jackson v. Underwriters' Report, Inc., 21 Cal.App.2d 591, 69 P.2d 878. The actual holding was that the alleged libelous matter was privileged on its face because the allegation was that the article had been extracted from a report of a judicial proceeding, and that the alleged libelous matter had been there spoken. Sullivan v. Warner Bros. Theatres, Inc., 42 Cal.App.2d 660, at page 661, 109 P.2d 760, at page 761, is cited as holding that the statement 'They have shown themselves disloyal' is not defamatory. The case is not that simple. In that case the defendant was charged with publishing a notice to its employees requesting them not to patronize plaintiff's store because plaintiff had proven himself 'disloyal' to the employer and to the neighborhood. The court properly held that since plaintiff owed no duty of allegiance to the defendant, the only sense in which the words could be understood, reasonably, was that plaintiff had been uncooperative, and were not, therefore, dafamatory.
Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 186 P.2d 737, did not hold, as claimed by defendants, that serious charges impugning the honesty of a district attorney, were not libelous, but actually held that the plaintiff had not properly pleaded the falsity of the charge. The other cases cited by defendant are also not in point.
The next major contention of defendant is that plaintiff's complaint shows on its face that the publication, even if false, was privileged as a matter of law, in that the publication, even if false, constituted fair comment in a political campaign. The privilege relied upon is that found in section 47 of the Civil Code. That section provides, in part: 'A privileged publication or broadcast is one made--* * * 3. In a communication, without malice, to a person interested therein, * * * (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent.'
Under this section newspapers are privileged to publish comments about the qualifications and character of candidates for public office without liability, even though such comments are false, as long as such statements fall within the realm of fair comment and are not made with malice. The proper rule was thus stated in Snively v. Record Publishing Co., 185 Cal. 565, at page 571, 198 P. 1, at page 3: '[A] newspaper stands in such relation to the people of the community in which it is published and circulated that, with regard to publications therein concerning local public officers, it comes within the scope of that part of subdivision 3, requiring 'a reasonable ground for supposing the motive of the communication innocent,' if the matter published has the other characteristics of a privileged communication. * * * It is based on the fact that the official conduct of public officers, especially in a government by the people, is a matter of public concern of which every citizen may speak in good faith and without malice.' See also Stevens v. Storke, 191 Cal. 329, 216 P. 371; Babcock v. McClatchy Newspapers, 82 Cal.App.2d 528, 186 P.2d 737.
In applying this privilege a wide latitude should be allowed newspapers in their criticisms of public officials and candidates. Noral v. Hearst Publications, Inc., 40 Cal.App.2d 348, 104 P.2d 860; see also Howard v. Southern California Associated Newspapers, 95 Cal.App.2d 580, 213 P.2d 399; Eva v. Smith, 89 Cal.App. 324, 264 P. 803; Taylor v. Lewis, 132 Cal.App. 381, 22 P.2d 569.
But this privilege does not constitute a license to libel. Newspapers are not to be permitted to make charges recklessly and falsely with malice and expect to be exonerated from a libel charge on the ground that anything is permissible in a political campaign, and that, therefore, the comment was fair comment. As was said in Gilman v. McClatchy, 111 Cal. 606, at page 613, 44 P. 241, at page 242:
'These truths [that the press should be free] are but platitudes, so well are they known and understood. There can be no fear that they will be either overlooked or forgotten * * *. The press itself, should need ever arise, will see that they are not. But there is an obverse of the picture which is not so often looked at. The growth of the enormous power of the press has brought with it corresponding responsibilities. Do the newspapers wield that power with just regard to the duties which it entails upon them? If they do not, then the wrong is a great one; for a libelous publication in a single issue of a newspaper serves to set wagging the thousand tongues of slander, which thereafter can never be silenced, even by the power which provoked them to utterance.'
Thus, although expressions of opinion and even severe criticism of a public officer or candidate, even if false, may be privileged, there is a limit beyond which newspapers may not go. One test is whether the charge simply relates to the qualifications or performance of a particular office or is one so broad that its sting will follow the officer or candidate into private life and 'stamp him as dishonest or bring upon him in the capacity of a private citizen the contempt of his fellows.' Taylor v. Lewis, 132 Cal.App. 381, 386, 22 P.2d 569, 572; see also Howard v. Southern California Associated Newspapers, 95 Cal.App.2d 580, 213 P.2d 399. Imputing communist affiliation or sympathy to a dentist of good repute is obviously such a charge.
In those cases where the privilege may exist, it can exist only if the false statements are made without malice, that is, the defendant must have made the statement in good faith with an honest belief in its truthfulness and absent any knowledge of its falsity. Snively v. Record Publishing Co., 185 Cal. 565, 198 P. 1; Farr v. Bramblett, 132 Cal.App.2d 36, 281 P.2d 372.
Where the facts showing the possibility of privilege appear on the face of a complaint the plaintiff has the burden of pleading additional facts showing that the communication was not privileged. Gosewisch v. Doran, 161 Cal. 511, 119 P. 656; Irwin v. Newby, 102 Cal.App. 110, 282 P. 810, 283 P. 370; Kelly v. Daro, 47 Cal.App.2d 418, 118 P.2d 37. Where the publication is not libelous per se the plaintiff has the burden of showing malice. Locke v. Mitchell, 7 Cal.2d 599, 61 P.2d 922; Taylor v. Lewis, 132 Cal.App. 381, 22 P.2d 569. Section 48 of the Civil Code provides that in cases under section 47, subdivision 3, of the Civil Code 'malice is not inferred from the communication.'
The complaint in the present case discloses that the comment challenged was made with reference to plaintiff's fitness as a candidate for public office. Thus, it may be assumed that the qualified privilege involved appears on the face of the complaint and that it was the duty of plaintiff to plead facts showing that the publication was made with malice. We think that for the purposes of a general demurrer the plaintiff has done so.
The plaintiff has pleaded that the defendant printed, published and circulated 'an article or statement in writing in which said defendants falsely and maliciously and with intent to injure, disgrace, and defame plaintiff' and then the article is quoted. It is then averred that 'all said charges, references, assertions, and imputations were false, malicious, and unprivileged, and were calculated to and did expose plaintiff to hatred,' etc.
We think this pleading is sufficient so far as the general demurrer is concerned. In Tingley v. Times Mirror Co., 151 Cal. 1, at page 14, 89 P. 1097, at page 1102, the court, in holding that the allegations of the complaint in pleading malice for purposes of exemplary damages were sufficient, stated: 'It is alleged * * * in the complaint that the defendant 'wickedly and maliciously, and with intent and design to injure, disgrace and defame plaintiff, and to bring her into public discredit and obloquy printed and published' the article complained of, and 'that said publication was false, malicious, and defamatory.''
In Farr v. Bramblett, 132 Cal.App.2d 36, 46, 281 P.2d 372, 378, it was held that the plaintiff had sufficiently alleged malice when he alleged that the statements were published by the defendant 'well knowing they had no probable, or any cause, for believing said statements, or any of them, to be true; and said statements were so published with the intent and design to injure, disgrace and defame this plaintiff; and further, such statements, so made by defendants, exhibited a state of mind arising from hatred or ill will for this plaintiff evidencing a willingness to vex, annoy, or injure this plaintiff, in order to further said opposition to Marion R. Walker and promote their mutual interest in electing defendant E. K. Bramblett.'
In Morcom v. San Francisco Shopping News, 4 Cal.App.2d 284, 289, 40 P.2d 940, 942, it was held that an allegation that the defendant 'did print with malice, knowingly, false and unprivileged statements and representations with the intent and design to injure, disgrace and defame plaintiff, etc.,' (court's emphasis) was sufficient. See also Washer v. Bank of America Nat. Trust & Savings Ass'n, 21 Cal.2d 822, 136 P.2d 297, 155 A.L.R. 1338.
Under these cases, and others that could be cited, it is apparent that in such cases it is essential that plaintiff plead that the defendant published the words with knowledge of their falsity or without an honest belief in their truth, and with the intent to injure the plaintiff. In the present case the fact that defendant intended to injure and defame the plaintiff is adequately alleged. The lack of an honest belief in the truth of the publication is defectively alleged. Such allegation seems implicit in the pleading, however, and the deficiency could easily be supplied by amendment. Thus, as to malice, it was an abuse of discretion to sustain the demurrer without leave to amend.
The next contention of defendant is that plaintiff has not sufficiently pleaded compliance with the so-called retraction statute, which is section 48a of the Civil Code. That section provides that if a person deems himself defamed by a newspaper publication or a radio broadcast such person must 'serve upon the publisher, [within 20 days] at the place of publication, * * * a written notice specifying the statements claimed to be libelous and demanding that the same be corrected,' and that if he fail to do so, or if a retraction is published, he shall be limited to the recovery of special damages. If the retraction or correction is not published upon such a demand the plaintiff may recover general, special and exemplary damages.
The plaintiff alleges in his complaint that 'on the 7th day of May, 1955, plaintiff caused to be served upon defendant a demand for a correction or a retraction, as provided in Section 48a of the Civil Code of the State of California, a copy of which is affixed hereto, marked 'Exhibit A' and incorporated herein as if pleaded in haec verba.'
Exhibit A reads, in part, as follows:
'I wish to call your attention to a purported news report which appeared in the Oakland Tribune on Tuesday, April 19, 1955, in all editions on Page 1 of your publication. The article reads as follows: [Entire article set forth in 17 typewritten lines.]
'This article is grossly libelous and I therefore demand that the same be corrected or retracted as provided in Section 48a of the Civil Code of the State of California.'
The complaint, which was filed on April 11, 1956, avers that up to the time of filing, defendant had failed and refused to publish a correction or retraction.
Defendant contends that the demand served on it is deficient because the code section (Civ.Code, § 48a) requires that there be served 'a written notice specifying the statements claimed to be libelous and demanding that the same be corrected' and urges that the demand here involved does not sufficiently specify the portions of the Tribune article claimed to be libelous. In this connection the defendant relies principally upon the decision in Anderson v. Hearst Pub. Co., D.C., 120 F.Supp. 850, 852, by the District Court in the southern district of California. In that case the demand served on the defendant read: 'Your issue of November 24th, 1952, carried, under the by-line of Westbrook Pegler, certain statements regarding me which are untrue, libelous and damaging.' 120 F.Supp. at page 852. The court pointed out that the challenged article 'was a lengthy article, three columns by ten inches,' (120 F.Supp. at page 851) and held that the defendant could not possibly know from the demand what statements in this lengthy article were challenged. In so holding the federal court distinguished Uhlman v. Farm, Stock & Home Co., 126 Minn. 239, 148 N.W. 102, a case arising in Minnesota, by using the following language (120 F.Supp. at page 853): 'But in that case the alleged libel was a short one and the demand for retraction specifically stated, 'that the article published by you * * * was and is libelous * * *.' Thus, the plaintiff there claimed that the entire statement was libelous.'
In the instant case the challenged article was very short, covering but 17 printed lines in the transcript. It would seem to fall within the rule of the Uhlman case rather than the Anderson case. Certainly the specification was sufficiently clear that no reasonable person could have any reasonable doubt of what was being challenged. The demand for retraction, therefore, complied with section 48a of the Civil Code.
Defendant's last major contention is that the plaintiff in this case was required to plead special damages, and urges that the pleading thereof was defective. It is true, as contended by the defendant, that where the alleged libel is not libelous per se but requires the pleading an innuendo to make it libelous, that then the plaintiff must allege, properly, special damage in order to state a cause of action. But where the publication is libelous per se such pleading is not required. Section 45a of the Civil Code provides: 'A libel which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face. Defamatory language not libelous on its face is not actionable unless the plaintiff alleges and proves that he has suffered special damage as a proximate result thereof. Special damage is defined in Section 48a of this code.'
To defendant's argument there are two answers. First, as already pointed out in another connection, the publication here involved is libelous per se. Certainly it does not require a pleading to establish that one who is charged with being recommended by a communist-line newspaper, is being charged with being a communist sympathizer or fellow traveler. In the second place, even if the publication is not libelous per se, we are of the opinion that special damages have been sufficiently pleaded.
Section 48a, subd. 4(b), of the Civil Code provides:
"Special damages' are 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, and no other.'
The Complaint here alleges:
'That as a direct and proximate result of the foregoing, plaintiff has suffered pecuniary loss in his profession as a dentist in the following respects:
'(1) An unusually large percentage of old and established patients have been cancelling appointments; and,
'(2) There has been a sharp decline in the number of new patients normally to be expected.
'Plaintiff does not at this time know the exact extent of pecuniary loss resulting from the foregoing, but is informed and believes, and therefore alleges, that said loss is a continuing one, and that the amount of said loss will be in the sum of $5,000.00, or more; and plaintiff prays leave of Court to amend this allegation to insert the true amount of said loss when the same becomes known to him.'
This allegation is sufficient although a portion of it is on information and belief. In Pridonoff v. Balokovich, 36 Cal.2d 788, at page 792, 228 P.2d 6, at page 8, the Supreme Court, after stating the rule as to pleading special damages, stated as follows:
'Plaintiff's allegation of special damage is sufficiently specific. He alleges that as a result of the publication of the alleged libel he has lost employment with a specific employer [naming the employer] for a specified period, to his damage in the amount of $5,000. Defendants are thereby informed of the exact nature of the claim of special damages and afforded an opportunity to prepare a defense against it. That is all that is required of the allegation.
'Defendants contend, however, that the allegation is insufficient for the reason that the special damages are alleged only on information and belief. Plaintiff may allege on information and belief any matters that are not within his personal knowledge, if he has information leading him to believe that the allegations are true. [Citing many authorities.] Plaintiff would ordinarily learn that he lost employment because of the libel from the declarations of others. It is therefore appropriate for him to allege such matters on information and belief. [Citing a case.]' After distinguishing another case, the Supreme Court continued (36 Cal.2d at page 793, 228 P.2d at page 9):
'In the present case, the amount of financial loss plaintiff has sustained and the fact that the loss was caused by the libel are not necessarily within his personal knowledge, but may be ascertainable only from the declarations of others and may therefore be alleged on information and belief.'
That case cannot be distinguished from the instant one.
For the foregoing reasons it must be held that it was an abuse of discretion to sustain the demurrer without leave to amend. We do not decide that the Complaint was not subject to some of the grounds urged in the special demurrer. The court, in its discretion, may require the clarification of any uncertainties or ambiguities. Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.
The judgment appealed from is reversed.
BRAY, J., and ST. CLAIR, J. pro tem., concur. --------------- * Opinion vacated 343 P.2d 36.