Freedom Newspapers, Inc. v. Superior Court

I agree with the majority’s conclusion that the trial court correctly denied the motion to strike plaintiff’s prayer for general and punitive damages. I do not, however, agree with the majority’s construction of the controlling statute.

Under Civil Code section 48a, subdivision 1 (hereafter section 48a(l)), a plaintiff who sues a newspaper for allegedly defamatory statements may recover only special damages, unless within 20 days of knowledge of those statements the plaintiff “serve[s] upon the publisher” a demand for correction. Thus, such a demand is a prerequisite to the recovery of general or punitive damages. The issue here is whether this statutory requirement was satisfied when plaintiff mailed the correction demand to the newspaper’s editor.

According to the majority, the word “publisher” is unambiguous and does not include the newspaper’s editor, although service can be made on a variety of people in any number of ways. The majority concludes that in this case the parties must litigate whether the demand for correction was known to the publisher at or about the time it was written, whether the editor had actual authority by delegation from the publisher to respond to…

Civil Code section 48a, subdivision 1 (hereafter section 48a(l)), limits the plaintiff in an “action for damages for the publication of a libel in a newspaper” to the recovery of special damages unless, within 20 days after becoming aware of the alleged libel, the plaintiff “serve[d] upon the publisher, at the place of publication . . . , a written notice specifying the statements claimed to be libelous and demanding that the same be corrected” (italics added), and the publisher failed to correct the error.

*655 In this case, the required notice was served on the editor of the newspaper in which the allegedly libelous statements appeared. For the reasons that follow, we hold that although the notice in the present case was sent to the editor of the newspaper, rather than to the publisher, the allegations in the second amended complaint that the editor had been designated by the publisher to receive such notices, and that the publisher acquired actual knowledge of the notice within the time period specified in section 48a(l), are sufficient, if proved, to satisfy the requirement of section 48a(l) that the notice be served upon the publisher.

Facts

Calvin Schmidt, 1 a…

Jones, Day, Reavis & Pogue and H. Warren Siegel for Real Party in Interest.

OPINION

GEORGE, J.

Civil Code section 48a, subdivision 1 (hereafter section 48a(1)), limits the plaintiff in an "action for damages for the publication of a libel in a newspaper" to the recovery of special damages unless, within 20 days after becoming aware of the alleged libel, the plaintiff "serve[d] upon the publisher, at the place of publication ..., a written notice specifying the statements claimed to be libelous and demanding that the same be corrected" (italics added), and the publisher failed to correct the error.

In this case, the required notice was served on the editor of the newspaper in which the allegedly libelous statements appeared. For the reasons that follow, we hold that although the notice in the present case was sent to the editor of the newspaper, rather than to the publisher, the allegations in the second amended complaint that the editor had been designated by the publisher to receive such notices, and that the publisher acquired actual knowledge of the notice within the time period specified in section 48a(1), are sufficient, if proved, to satisfy the requirement of section…