Wednesday, December 18, 2013
Retraction Statute Protects ‘Dr. Phil’ in Defamation Suit—C.A.
Justices Say Law Dating to Early Days of Broadcasting Applies to All Content, Not Just Traditional Newscasts
By KENNETH OFGANG, Staff Writer
A state law barring recovery of non-economic damages in a defamation suit against a or broadcaster if the plaintiff fails to make a timely retraction demand is not limited to defendants engaged in the immediate dissemination of news, the Court of Appeal for this district ruled yesterday
Div. Seven denied a writ of mandate sought by Derek and Satish Kalpoe, who filed suit in 2006 against television host Phillip McGraw—better known as “Dr. Phil”—as well as CBS Paramount and Peteski Productions Inc., which air and produce McGraw’s daytime afternoon talk program. The Kalpoes, who live in Aruba, have been longtime suspects in the disappearance of teenaged American tourist Natalee Holloway on the Caribbean island in 2005.
The brothers claim that a private investigator working for the defendants gained their cooperation by pretending to be seeking information demonstrating their innocence, and that the show then broadcast an edited videotape that portrayed them in a false light. It showed Deepak Kalpoe indicating that Holloway had sex with him and his brother.
Deepak Kalpoe subsequently claimed that he had no knowledge of the videotaping, and that when the investigator—Jamie Skeeters, who died in 2007—asked if Holloway and had sex with him and his brother, Kalpoe shook his head and answered in the negative, and that the tape was manipulated for purposes of the broadcast.
Motion in Limine
The brothers brought their writ petition earlier this year after Los Angeles Superior Court Judge William MacLaughlin granted a motion in limine that bars them from recovering general or exemplary damages, pursuant to Civil Code §§ 48a and 48.5.
Section 48a, which dates to 1931, says that in an “action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, the plaintiff shall recover no more than special damages unless a correction be demanded and be not published or broadcast.” Any such demand, the statute says, must be made within 20 days “after knowledge of the publication or broadcast.”
Special damages are specifically defined to include monetary losses and exclude loss of reputation and hurt feelings. After television became widely available in the 1940s, § 48.5 was enacted, extending the law’s protection to “visual…broadcasting.”
In responding to the defendants’ motion in limine, the Kalpoes conceded they had not demanded a retraction, but argued they were not required to do so because McGraw’s show isn’t a news broadcast.
But Justice Fred Woods, writing for the Court of Appeal, said MacLaughlin was correct in ruling that the statutory protections are not limited as claimed by the plaintiffs. Neither the plain language of the sections nor their legislative history supports any such limitation, nor does case law, he justice said.
He distinguished two cases involving the National Enquirer, both which held that the sensationalist tabloid was not a “newspaper” for purposes of § 48a because it does not engage in immediate dissemination of news. The cases involving television broadcasts, Woods noted, do not apply an immediacy limitation.
“The only case which discusses the content of television shows is a federal district court case, In re Cable News Network (N.D. Cal., 2000) 106 F.Supp.2d 1000,” Woods explained, which held the statute applicable to all television broadcasts.
“In the 64 years since the enactment of section 48.5, the Legislature has not acted to amend it. If the Legislature, in the future, wishes to amend the statute to apply only to visual or sound radio broadcasts which relate to the immediate and rapid dissemination of news, then we have no doubt it will do so. Until then, we are bound to follow the unambiguous terms of the statute.”
Attorneys on appeal were Thomas V. Girardi and Graham B. Lippsmith of Girardi Keese and the Chicago firm of Cremer, Spina, Shaughnessy, Jansen & Siegert for the plaintiffs and William C. Haggerty and Neil S. Tardiff of Ford, Walker, Haggerty & Behar, along with Charles L. Babcock and Nancy W. Hamilton of Jackson Walker for the defendants.
The case is Kalpoe v. Superior Court (McGraw), B246154.
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