Appeal from the United States District Court for the Central District of California. D.C. No. CV 89-0209-CBM. Consuelo B. Marshall, District Judge, Presiding. This Opinion Substituted by Court for Withrawn Opinion of December 11, 1991
Before: Harry Pregerson, Robert R. Beezer and Alex Kozinski, Circuit Judges. Opinion by Judge Beezer; Dissent by Judge Pregerson.
This case failed to receive a majority of the votes of the nonrecused active Judges in favor of en banc consideration. The panel voted unanimously to grant the petition for rehearing for the limited purpose of removing the references to Cox v. Los Angeles Herald Examiner because the California Supreme Court ordered the Cox opinion decertified.
The opinion filed on December 11, 1991 and cited at 952 F.2d 259 (9th Cir. 1992) is withdrawn. A new opinion is filed herewith and the clerk shall issue the mandate forthwith.
Arnold Dorsey, better known as Engelbert Humperdinck, sued the National Enquirer, Inc. alleging that an article in its tabloid defamed him. The district court granted summary judgment in favor of the Enquirer and Dorsey appeals. We affirm.
In 1980, Kathy Jetter obtained a determination in New York Family Court that Dorsey was the father of her daughter. The court ordered Dorsey to pay child support and educational expenses. See Kathy G. J. v. Arnold D., 116 A.D.2d 247, 501 N.Y.S.2d 58 (1986), cert. denied, 479 U.S. 1054, 107 S. Ct. 927, 93 L. Ed. 2d 979 (1987). In May, 1988, Jetter petitioned the same court for an increase in child support payments and for an order requiring Dorsey to purchase life insurance naming the girl as his beneficiary.
Dorsey opposed the request and Jetter filed a Reply Affidavit. In the affidavit she stated: "The request for life insurance is of a dire necessity. Upon information and belief, the respondent has AIDS related syndrome and has been treated at Sloan Kettering in New York." Sometime before December 1988, Jetter gave the National Enquirer a copy of this affidavit. In its December 27, 1988 edition, the Enquirer published an article that highlighted the Reply Affidavit's allegation that Dorsey carries the AIDS virus.
The Enquirer's front page displays a photo of Dorsey next to the headline: " Mother of His Child Claims in Court. . . Engelbert Has AIDS Virus." The article itself bears the headline: " Mom of Superstar Singer's Love Child Claims in Court. . . Engelbert Has AIDS Virus."
The one-page article quotes Jetter's affidavit twice and quotes Jetter as saying: "I never would have filed the court papers if I wasn't 100 percent convinced he has the AIDS virus." Jordan Stevens, a private investigator hired by Jetter, is quoted as saying:
Humperdinck is suffering from the AIDS virus. We have stated that belief in court papers and it is based on an intensive investigation of the singer during the past five years.
He was tested positive for the AIDS virus in early 1985. As stated in the court documents, he has had treatment for the AIDS virus at Sloan-Kettering hospital but our information is that the disease remains.
The article goes on to explain the ramifications of having the AIDS virus.
The article discusses Jetter and Dorsey's relationship and their previous legal proceedings over child support, leading up to the life insurance request and Reply Affidavit. The third paragraph notes that Dorsey denies the affidavit's AIDS allegation. In the next-to-last paragraph, the Enquirer reports that Dorsey's attorney "said there was no truth whatsoever to the charge that the singer has the AIDS virus and called it an 'utter fabrication.' " The article also includes a picture of Dorsey with the caption: " ENGELBERT DENIES he has the AIDS virus."
Dorsey filed a defamation action against the Enquirer. The Enquirer moved for summary judgment. The district court granted the motion, finding as a matter of law that the article was a fair and true report of allegations made in a judicial proceeding. Thus, it was privileged under California law and protected by the United States Constitution. The district court further held that the incremental harm doctrine shielded the Enquirer from liability.*fn1
Dorsey timely appealed the summary judgment order. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the district court's grant of summary judgment de novo. Kruso v. International Tele. & Tele. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937, 110 S. Ct. 3217, 110 L. Ed. 2d 664 (1990). "In reviewing a grant of summary judgment, we draw all inferences of fact in favor of the party opposing the motion." Sankovich v. Life Ins. Co. of North America, 638 F.2d 136, 138 (9th Cir. 1981).
Dorsey is a citizen of England and the Enquirer is a Florida corporation. The district court was therefore sitting in diversity pursuant to 28 U.S.C. § 1332(a)(2). The case was brought in California and the parties do not dispute that California law applies. See Reeves v. American Broadcasting Companies, Inc., 719 F.2d 602, 605 (2nd Cir. 1983).
A. Scope of the California Privilege
California law defines an area of reporting which is privileged from defamation actions. Section 47(4) of the state's Civil Code grants the privilege to "a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) anything said in the course thereof. . . ." Cal. Civ. Code § 47(4) (West 1982)*fn2 Thedistrict court applied section 47(4) and ...