Writing Sample(SD News Memo)

TO: Senior Partner
FROM: Granville Kaufman
RE: San Diego News: Merryman v. San Diego News, File No. 5928, Possible
Summary Adjudication Motion
DATE: 22 November 2016
ISSUES PRESENTED
1. Under California law, which states that a letter for a retraction must specify the
objectionable material and demand a retraction, is a letter sufficient when it does not
resolve ambiguities in the article and asks for a meeting to discuss the retraction?
2. Under California law, which normally leaves the question of sufficiency of the
retraction to the jury, will a court nonetheless grant summary adjudication when the
publisher corrected the mistake but printed the retraction on a different page than the
original article?
SHORT ANSWERS
1. Most likely not. In an article with a lot of truths, the letter should be more specific to
aide the publisher in his search for the libel. Here, the letter did not resolve the ambiguity
regarding the identity of the plaintiff.
2. Probably not. Courts grant summary adjudication if no reasonable jurors can find the
retraction insufficient. Here, because the retraction and the original article have stylistic
differences, the court will likely send the retraction to the jury.
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STATEMENT OF FACTS
After allegedly losing an opportunity to work at a prestigious law firm for the
summer, law student Mr. Adam Merryman sued the San Diego News for libel made in an
article published as the lead story on April 2, 2016. The article identified eight
undergraduates involved in a cheating scandal. The News misidentified one of the
undergraduates, Adam T. Merryman, as Mr. Merryman. The article referred to the
undergraduate in two paragraphs detailing his involvement in the scandal. The article
mentioned Mr. Merryman in a third paragraph about his hometown. Additionally, the
article mistakingly printed a photo of Mr. Merryman.
On April 5, 2016, Mr. Merryman sent a letter to the News informing them that “the
statements identifying Mr. . . . Merryman, . . . as being . . . caught in the cheating
scandal . . . libel[ed]” Mr. Merryman. The letter continued, saying “the accompanying
photograph or Mr. Merryman . . . libel[ed] Mr. Merryman. . . . Mr. Merryman want[ed]
this misidentification set straight.” The letter “request[ed] that [the News] meet with [Mr.
Merryman] to discuss . . . an adequate retraction.” The letter concluded with a
“correction is the least that [the News] can do.”
Eleven days later the San Diego News published a retraction on page five. The
headline, printed in larger font than the original, read “Student Misidentified In Cheating
Scandal Story.” The article identified Mr. Merryman as the incorrect student and
identified the correct student. Furthermore, the retraction mentioned the mistaken use Mr.
Merryman’s photo. The retraction expressed the News’s regret over the mistake.
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After the retraction, Mr. Merryman sued for general and special damages. As
discovery closes, the San Diego News needs to know whether they should move for
summary adjudication to strike the claim for general damages prior to trial.
DISCUSSION
To recover general damages, Mr. Merryman must send a letter that specifies the
libelous material and actually demands a retraction. See Cal. Civ. Code § 48a(1) (West,
Westlaw through 2016). Then, the News must not publish the retraction “in substantially
as conspicuous a manner” as the original article. See § 48a(2). Because Mr. Merryman’s
letter might not state the objectionable material with enough specificity and because the
letter demands a retraction contingent on a meeting, the court will likely find the letter
inadequate. If the court finds the letter adequate, the court might send the retraction to the
jury to determine the retraction’s conspicuousness.
A. The Court Will Likely Find the Demand Letter Insufficient
For a letter to be sufficient, it must specify “the statements claimed to libelous”
and actually “demand that the [libelous material] be corrected.” § 48a(1). Here, the court
will likely find that Mr. Merryman’s letter did not meet either prong of the statute.
1.The Letter Likely Did Not Specify the Libelous Material
The letter must specify the libelous statements. Id. The statute does not require
verbatim quotes, but the letter must enable a reasonable publisher to understand the
statements that the plaintiff finds objectionable. See Kapellas v. Kofman, 1 Cal. 3d 20, 31
(1969). A complex article with both libelous and truthful comments requires a letter with
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a “high degree of specificity.” Gomes v. Fried, 136 Cal. App. 3d 924, 925 (1982).
Specificity expedites a publishers investigation into the error of the statements, but letters
of retraction need not meet the standard of legal pleadings. Kapellas, 1 Cal. 3d at 30-31.
When a letter does not explicitly state the libelous content, courts will hold the
letter sufficient if a reasonable publisher can infer the objectionable material by reading
the letter. Id. at 31. In Kapellas, after a newspaper printed an article that contained one
paragraph that libeled the plaintiff’s children, her letter “request[ed a] correction of
‘every statement concerning . . . [her] children.’” Id. Although the letter did not identify
the libel verbatim, the court ruled the letter “specific and comprehensible” enough for a
publisher to reasonably read the letter as referring to anything within the paragraph about
the children. Id.; see also MacLeod v. Tribune Publ’g. Co. 51 Cal. 2d 536, 553-54 (1959)
(ruling a letter that stated “this article is grossly libelous” sufficient when plaintiff
appeared in the article once).
If an article intermixes libelous and truthful statements, the court may hold the
letter sufficient if it states the libelous content with particularity. Gomes, 136 Cal. App.
3d at 938. In Gomes, an article included a libelous photograph of the plaintiff in addition
to truthful statements about the plaintiff’s conduct. Id. at 928-31. The plaintiff demanded
a retraction of the statements regarding his conduct but never mentioned the photograph.
Id. at 938. Because the letter “failed to specify . . . the only . . . libelous part of the
article,” the court ruled the publisher “could not [have been] expected to comprehend”
what the plaintiff wanted retracted. Id.
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The court might rule a reasonable publisher, like the News, could not determine
what Mr. Merryman found objectionable from his letter because the letter did not resolve
an ambiguity in the News’s article that the article in Kapellas did not have. The court in
Kapellas ruled a letter that asked for a retraction of “every statement [about] . . . [the
plaintiff’s] children” sufficient because the article mentioned the children in a single
paragraph. By contrast, the letter here claimed all the “statements identifying Mr. . . .
Merryman as being . . . caught in the . . . scandal” libeled him. Unlike the consolidated
libelous reference in Kapellas, the News article referred to the undergraduate by their
shared surname in two separate paragraphs and to Mr. Merryman in a third paragraph.
Mr. Merryman’s letter did not state which of these references he found objectionable.
Because a reasonable publisher can read Mr. Merryman’s letter as alluding to any of the
references, the court will likely rule Mr. Merryman’s letter did not distinguish the content
that libeled him from the content that did not.
Furthermore, Mr. Merryman’s letter likely did not specify the libelous content with
enough particularity because his letter, similar to the letter in Gomes, did not distinguish
between the truths and libel in the News article. The letter in Gomes failed to mention the
libelous photograph printed in an article that contained multiple truthful statements in
addition to the libelous picture. Similarly, the letter here stated the “statements identifying
Mr. . . . Merryman as being . . . caught in the . . . scandal” libeled Mr. Merryman.
Additionally, the News article mixed truthful statements about the undergraduate with
truthful statements about Mr. Merryman. The letter did not address whether the
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statements about the undergraduate or the statement about Mr. Merryman libeled him.
Therefore, the court will likely rule the letter did not specify the libel with sufficient
particularity.
However, because the article only contained a single picture, the court will likely
rule the statement “[t]he . . . photo[] of Mr. Merryman . . . libels Mr. Merryman”
described the photo with sufficient particularity. Regardless, the retraction corrected the
erroneous use of Mr. Merryman’s photo.
Even still, because the letter did not distinguish the truths in the article from the
libel, the court will likely rule the letter did not specify the libelous content with
sufficient particularity. However, if the letter met the standard for specificity, the letter
still must have actually demanded a retraction. See § 48a(1).
2.The Letter Likely Did Not Adequately Demand a Correction
A sufficient demand cannot subject the retraction to a condition before publication.
O’Hara v. Storer Commc’ns., Inc., 231 Cal. App. 3d 1101, 1111 (1991). Conditional
requests make complying with the plaintiff’s demands impossible for the publisher. Id.
For example, in O’Hara the plaintiff’s letter requested that “a retraction be
published, but Only [sic] after [discussing it] . . . with [her lawyer].” Id. at 1106. Despite
asking for a retraction, the court ruled her request conditional--and thus “not . . . in
accordance with section 48a”--because the plaintiff implied the sufficiency of the
retraction hinged on the attendance of a meeting. Id. at 1111; see also Farr v. Bramblett,
132 Cal. App. 2d 36, 44 (1955) (ruling a publisher could conclude a letter that threatened
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immediate suit for missing a meeting did not ask for statutory relief because the statute
required no meeting and allowed the publisher three weeks to print a retraction).
Likewise, the court will likely find Mr. Merryman’s letter attached a condition to
the retraction similar to the condition attached to the retraction in O’Hara. The letter in
O’Hara asked for a retraction, but only after the defendants met with the plaintiff to
discuss the retraction. Similarly, Mr. Merryman expressed his desire for the News to
“make [a] correction,” but “request[ed] that [the News] meet with [Mr. Merryman] to
discuss . . . an adequate retraction.” In both cases, the letter requested a retraction, but
conditioned the sufficiency of the retraction on the attendance of a meeting. Because the
statute does not require publishers attend a meeting before printing a retraction, the court
will likely rule the letter insufficient.
Furthermore, the court will likely rule the News could reasonably conclude Mr.
Merryman’s letter asked for similar relief to the relief asked for in Farr that exceeded the
statutory requirements. The letter in Farr did not ask for a retraction, but threatened an
immediate lawsuit if the defendant did not attend a meeting to discuss a retraction even
though the statute gives the publisher three weeks to retract. Although Mr. Merryman’s
letter demanded a retraction in addition to a meeting, the letter claimed that a retraction
“[was] the least [the News] can do.” Because the statute does not require anything more
than a retraction, the court might rule the letter asked for more than statutory relief.
The court will likely find the letter did not sufficiently demand a retraction
because the letter conditioned the retraction on the attendance of a meeting. Furthermore,
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the court will likely rule the retraction did not sufficiently specify the libelous material.
However, if the court finds the retraction sufficient, the court must then decide whether to
grant summary adjudication on the issue of the sufficiency of the retraction.
B.The Court Might Not Grant Summary Adjudication On the Sufficiency Of the
Retraction
The retraction must be “published . . . in substantially as conspicuous a manner . . .
as . . . the statements claimed to be libelous.” § 48a(2). Generally, the jury determines
relative conspicuousness. Twin Coast Newspapers, Inc. v. Superior Court, 208 Cal. App.
3d 656, 662 (1989); Pierce v. San Jose Mercury News, 214 Cal. App. 3d 1626, 1632
(1989). However, the court may grant summary adjudication if “no reasonable juror
could find the retraction insufficient.” Twin Coast, 208 Cal. App. 3d at 662. Granting
summary adjudication promotes the “strong public interest in journalistic freedom.” Id.
No reasonable jurors can differ when the plaintiff cannot have expected anything
more from the retraction. Id. at 663. In Twin Coast, the retraction “appeared in the same
location as the [original article], . . . identified the [plaintiff], . . . stated the story had been
in error, . . . corrected every aspect of the [original] publication, . . . expressed the
publisher’s regret,” and appeared under a headline with “larger type than the defamatory
[headline].” Id. at 662-63. The court ruled the law required nothing more of the retraction
and granted summary adjudication. Id. at 663.
The court will not grant summary adjudication if reasonable jurors could find the
retraction not as substantially conspicuous as the original article. Pierce, 214 Cal. App. 3d
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at 1633. The retraction in Pierce appeared on the bottom of the second page and under the
headline “Setting the Record Straight.” Id. The original article appeared “in the lead
story” and under the headline “Cops Accused.” Id. The court denied summary
adjudication because “[t]his [case was] simply not a case in which no reasonable juror
could [have found] the retraction insufficient.” Id.
The court will likely find that Mr. Merryman could have expected more from the
News’s retraction because the News’s retraction did not match the thoroughness of the
Twin Coast retraction. The paper in Twin Coast printed the retraction on the same page,
named the plaintiff, admitted the error of the story, corrected the story, apologized, and
printed the story under a headline with larger font. Although the News retraction named
Mr. Merryman, admitted that the News confused him with an undergraduate who had a
similar name, acknowledged that the News “inadvertently used the photo[]” of Mr.
Merryman, expressed the News’s regret over the error, and printed the headline with a
larger font than the original headline, nevertheless, the News retraction neither appeared
on the front page nor printed a picture of the undergraduate. Because Mr. Merryman
could have expected the News to perform either of those actions, the court will likely rule
reasonable jurors could differ on the issue of conspicuousness.
In addition, the court will likely find the News retraction, like the retraction in
Pierce, differed too much from the original article for no reasonable jurors to find the
retraction insufficient. The retraction in Pierce appeared on the bottom of the second page
whereas the original article appeared on page one. Furthermore, the headline of the
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retraction did not reference the subject of the original article. Although, the News
retraction’s headline (“Student Misidentified in Cheating Scandal Story”) referenced the
original article, nonetheless, the retraction appeared on page five but the original article
appeared on page one. Because the article did not appear in the same location, the court
might rule that reasonable jurors could disagree on the retraction’s sufficiency.
Nevertheless, the court might rule Mr. Merryman could not have expected more
from the retraction because forcing the News to print a short retraction on page one puts a
burden on journalistic freedom. However, a court has granted summary adjudication only
for the retraction in Twin Coast. Therefore, because the News retraction and the Twin
Coast retraction differ, the court might not grant summary adjudication regardless of the
burden on journalistic freedom.
CONCLUSION
If the News moves for summary adjudication to dismiss the claims of general
damages, the court might grant the motion. The court will likely find the letter
insufficient for not specifying the libelous content with enough particularity and for
making a conditional demand. If the court finds the letter insufficient, then the court must
dismiss the general damages. However, if the court finds the letter sufficient, the court
could deny summary adjudication and send the retraction to the jury. The jury could find
the retraction sufficient because the News could not have done anything more without
substantially burdening itself. Overall, the News likely can strike the claims for general
damages either through summary adjudication or through a trial.
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