Osmond

Introduction

This is an appeal by plaintiff Kenneth Osmond (Osmond) from the judgment dismissing his action after the trial court grant ed respondent EWAP, Inc.’s (EWAP) motion for summary judgment as to Osmond’s first cause of action for libel. We affirm the judgment on the ground that Osmond failed to raise a triable issue on the question of malice, an element of libel which must be proved to impose liability on a distributor which merely disseminates libelous material published by others.

Statement of Facts

Osmond’s complaint and his declarations submitted in opposition to EWAP’s motion for summary judgment set forth the following facts relevant to this appeal:

EWAP operated a chain of retail “adult book stores” under the name Le Sex Shoppe. One or more of the stores prominently displayed in large glass showcases, for sale to the public, the “Playmate” series film “Super-cock.” The label on the film carton showed a photograph of a man and woman engaged in a lewd sex act. The legend on the label stated that the male star of the film was “John Holmes, who played ‘Little Eddie Haskell on the Leave it to Beaver’ show . . . .”

At the time the film was thus displayed…