Mullins v. Thieriot

Opinion

DRAPER, P. J.

Plaintiffs in this action for libel are the president of Oakland Police Officers Association “on behalf of” that association and its members; two members of the Oakland Police Department, and one member of the Emeryville Police Department. They appeal from judgment entered after defendants’ general demurrer was sustained without leave to amend.

The statement complained of was published April 15, 1968, in the San Francisco Chronicle column of Herb Caen. It reads: “Bay City Beat: When young Bobby Hutton and Eldridge, Cleaver were trapped by the cops in

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that Oakland house, the experienced Cleaver told the kid: ‘Take off all your clothes before we walk outside—that way they can’t claim you were trying to pull a gun and shoot you.’ Cleaver thereupon stripped but Hutton was too shy: he kept his shorts on. And was shot dead. The naked Cleaver was wounded.”

No special damages are alleged by plaintiffs. Thus they state a cause of action only if the language used in the publication is defamatory on its face (Civ. Code, § 45a; 3 Witkin, Cal. Procedure (2d ed. 1966) Pleading § 595, p. 2236).

In determining whether the language used meets this test, we are required to place ourselves “ ‘in the situation of the . . . reader, and determine the sense or meaning of the language . . . according to its natural and popular construction.’ [We must measure the publication] not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader. A defendant is liable for what is insinuated, as well as for what is stated explicitly [citations].”

(MacLeod

v.

Tribune Publishing Co.,

52 Cal.2d 536, 547 [343 P.2d 36].)

MacLeod

goes on to disapprove the “possible innocent meaning” rule, pointing out (p. 550) that “hair-splitting analysis of language” in an effort to discover such an- innocent meaning “has no place in the law of defamation.”