Boyich v. Howell

California Court of Appeal Nov 1, 1963 No. Civ. 21299Published

Before: Draper

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Holding. The court held that the complaint stated a cause of action for libel because the plaintiff sufficiently alleged actual malice to overcome the qualified privilege afforded to statements regarding public officials. Consequently, while the complaint was vulnerable to a special demurrer for uncertainty, the trial court erred in sustaining the demurrer without leave to amend.

Issues

Whether the alleged defamatory statements regarding a public official are libelous on their face.
Whether the complaint sufficiently pleads actual malice to overcome the qualified privilege for communications concerning public officials.
Whether the trial court abused its discretion in sustaining a demurrer without leave to amend when a cause of action was stated.

Disposition. reversed

Quotations verified verbatim against the opinion

“The average lay reader of the entire circular could well view the charged conviction of union ballot box stuffing as asserting conviction of crime, coneededly a libel on its face.”

“Plaintiff does allege that defendants, at the time of publication, “knew that said statements were ... false.” Thus actual malice is alleged, the defense of qualified privilege is met, and a triable issue of fact is presented.”

“Thus the complaint was vulnerable to the special demurrer, but since a cause of action is stated, leave to amend should have been granted”

DRAPER, P. J.

Plaintiff seeks damages for alleged libel. Demurrer to his second amended complaint was sustained without leave to amend. Judgment of dismissal followed, and plaintiff appeals.

Plaintiff alleges that: he was a councilman of the City of Albany, and a candidate for election to that office; before the election defendants distributed to the “citizens and electors” of Albany a circular which falsely charged, among other things, that plaintiff “was convicted, fined and barred from holding a union office for five years ... because he stuffed the ballot box in a union election. ’ ’

The sting of this charge is apparent on the face of the circular. We need not consider whether a charge of “conviction” in a strictly intra-union proceeding is a libel on its face. We do not subject the charge to critical analysis, but are to look to its “whole scope and apparent object,” and to its natural and probable effect upon the mind of the average reader

(Bates

Campbell,

213 Cal. 438, 441-442 [2 P.2d 383]). The circular also charged that plaintiff had pleaded guilty to petty theft and had been punished therefor (a charge which we do not here consider since an earlier verified complaint apparently admitted its truth), and also referred to plaintiff’s “natural animosity to law enforcement.” The average lay reader of the entire circular could well view the charged conviction of union ballot box stuffing as asserting conviction of crime, coneededly a libel on its face. Thus even if this charge be also susceptible of an innocent interpretation, it is defamatory on its face

(MacLeod

Tribune Publishing Co.,

52 Cal.2d 536, 548-550 [343 P.2d 36]). Allegations of innuendo and of special damages are surplusage when libel per se is charged

(Bates

Campbell, supra).

Hence we need not consider defendants’ attack upon the doubtful sufficiency of such allegations.

[803]

Boyich v. Howell

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DRAPER, P. J.

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