Weekly Law Resume - January 2014: Defamation – Plaintiffs Limited To Recovery of Special Damages Based on Failure To Demand a Retraction Before Filing Suit

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Deepak Kalpoe, et al. v. The Superior Court of Los Angeles County
Court Of Appeal, Second Appellate District (December 17, 2013)

In lawsuits for libel or defamation against certain publications and broadcasters, a plaintiff cannot recover general or punitive damages unless a correction is first demanded. Under Civil Code §48a, a plaintiff’s failure to serve the publisher with a notice specifying the so-called libelous statements and demanding a correction will limit the plaintiff’s recovery to special damages only. This case concerned the television broadcast of an interview with an Aruban resident, Deepak Kalpoe, in connection with the 2005 disappearance of Natalee Holloway, an American teenager on a high school trip to Aruba. The question for the Appellate Court was whether §48a only applies to broadcasts which engage in the immediate dissemination of news.

In 2005, a private investigator was hired by the producers of a television show to travel to Aruba and investigate the Holloway disappearance. The investigator, Jamie Skeeters, met with Deepak Kalpoe and videotaped an interview with him that was later broadcast in the first episode of the 2005 fall television season. The videotape showed that when asked by Skeeters, Deepak Kalpoe indicated that Holloway had sex with him and his brother Satish Kalpoe. After the episode aired, Deepak Kalpoe claimed he had not consented to the videotaping, and had not known that Skeeters was recording it. He also claimed that when Skeeters asked if Holloway had sex with him and his brother, he responded “No,” shaking his head; and that the videotape played on the broadcast had been manipulated.

The Kalpoes subsequently filed a complaint against the television show and its producers for defamation, invasion of privacy, negligent and intentional infliction of emotional distress, fraudulent misrepresentation and deceit, among other claims. Before trial, the defendants filed a motion in limine to bar the Kalpoes from introducing any evidence at trial regarding general or punitive damages for defamation, defamation per se, false light, negligent and intentional infliction of emotional distress, based on §48a. The defendants argued that because the Kalpoes had not demanded a correction, they could not introduce evidence of general or punitive damages. The Kalpoes did not dispute that they did not demand a correction. The trial court granted the motion in limine, and the Kalpoes filed a motion for reconsideration. It was denied.

In January 2013, the Kalpoes filed a petition for writ of mandate with the Court of Appeal, arguing that §48a was only meant to apply to media which are engaged in the business of immediate dissemination of news. The Court of Appeal examined the statute, the case law and the facts to determine whether the Kalpoes were subject to the retraction requirements of §48a. With respect to interpretation of the statute, the court concluded that nothing in the legislative history showed any intent to limit the types of broadcasts to those engaged in the dissemination of breaking news. Several cases addressing §48a were also analyzed, and the court concluded that none of them soundly addressed the question of whether only those media which cover news events are within the purview of §48a. More specifically, as to television broadcasts, none of them limited the type of television programs to which §48a applies. Indeed, the court noted that its close examination of the cases revealed that the scope of §48a is determined by the type of media involved, and not upon specific content. One federal case (which may have formed the basis for plaintiffs’ argument) had noted that the legislative history behind §48 indicated that the statute was enacted to protect “purveyors of breaking news,” but even in that case it was ultimately concluded that the plain statutory language of §48a made it applicable to all television broadcasts.

The court agreed that nothing in the language of the statute limited its application to broadcasts of “breaking news.” It denied the Kalpoes’ petition, holding that until the Legislature chooses to amend the statute, the court is bound to follow its unambiguous terms. Thus, because the Kalpoes did not send a request for a correction, the trial court correctly granted the defendants’ motion in limine to bar evidence at trial of general or punitive damages.

COMMENT
This case states unequivocally that the retraction requirement of Civil Code §48a does not distinguish between types of content in visual and sound broadcasting. According to the Second District Court of Appeal, the plain statutory language of §48a makes the retraction requirement applicable to all television broadcasts.

For a copy of the complete decision see: http://www.courtinfo.ca.gov/opinions/documents/B246154.PDF