The underlying issue in this case relates to the
right to privacy. Whether that right was violated cannot
be determined, however, without the disclosure of
relevant evidence. The question before us now is whether
such disclosure can be compelled without violence to the
First Amendment values requiring protection of a
journalist's confidential sources and information.
Petitioners Anti-Defamation League of B'nai B'rith
(ADL) and Roy Bullock seek to set aside a discovery order
issued by respondent superior court (Judge Alex
Saldamando) on September 19, 1997, granting
reconsideration and ordering compliance with certain
discovery requests by real parties in interest after
finding that they have now met the criteria set forth in
Mitchell v. Superior Court (1984) 37 Cal.3d 268, to
overcome the journalist's qualified privilege.
Respondent court stayed the effect of its order pending
final determination of this writ petition. Initially,
this court denied the petition without opinion.
Thereafter, the Supreme Court directed us to issue an
order to show cause and to place the matter on calendar.
As explained hereafter, we hold that petitioners, as
journalists, are immune from liability for violating
Civil Code section 1798.53 under the First Amendment as
to all but one and possibly two other real parties in
interest by virtue of their status as limited purpose
public figures. As to the remaining non-public figure or
figures, petitioners are not protected by the First
Amendment from liability and a discovery order.
Petitioners are entitled to the protection of the
First Amendment, however, only insofar as the information
sought to be discovered was obtained and used by them for
legitimate journalistic purposes. The journalist's
privilege would not protect against discovery directed to
whether any non-public information gathered about real
parties in interest was privately disclosed to a foreign
government or others in violation of Civil Code section
1798.53, as claimed, because such usage does not
constitute journalism. The discovery order issued by the
trial court was not so limited. The order must therefore
be vacated and the matter remanded for reconsideration in
light of our opinion. I. FACTUAL AND PROCEDURAL
BACKGROUND
Petitioners ADL and Roy Bullock, along with Richard
Hirschhaut and Thomas Gerard, are defendants in an action
brought by real parties in interest for invasion of
privacy in violation of Civil Code section 1798.53.
Defendant Hirschhaut was the director o f ADL's office in
San Francisco; defendant Bullock has been a paid
"fact-finder" for ADL for the past 32 years; and
defendant Gerard was employed by the San Francisco Police
Department. The complaint alleges that defendants
secretly gathered and disclose d personal information
about real parties in interest, 17 individuals, in
violation of Civil Code section 1798.53 because of their
expressed views in opposition to the apartheid policy of
the then-government of South Africa and/or Israeli
policies vis--vi s the Palestinians.
Real parties learned of defendants' activities as a
result of an investigation conducted by the San Francisco
District Attorney and the Police Department. The
District Attorney commenced the investigation in 1993
after the Police Department learned that one or more of
its officers might have been improperly providing
confidential government information to Bullock, who was
employed by ADL to investigate organizations opposing the
aforesaid policies of the governments of Israel and South
Africa.
At the conclusion of his investigation, the District
Attorney determined that Bullock and/or ADL had solicited
and received government information not made public from
San Francisco police officers and others. In November
1993, the District Attorney commenced a civil action
against ADL and Bullock alleging violation of Business
and Professions Code section 17200.1 That action was
settled after ADL agreed to a permanent injunction
prohibiting ADL and Bullock from obtaining documents or
other information they know could not legally be
disclosed to them. Real parties in interest, who
commenced this action in April 1993, claim that
non-public information contained in government records
relating to each of them was improperly obtained and
disclosed to others by ADL.
Civil Code section 1798.53 is part of the
Information Practices Act of 1977, which generally
imposes limitations on the right of governmental entities
to disclose personal information about an individual.
(Nicholson v. McClatchy Newspapers (1986) 177 Ca l.App.3d
509, 514, fn. 2.) The statute was designed by the
Legislature to prevent misuse of the increasing amount of
information about citizens which government agencies
amass in the course of their multifarious activities, the
disclosure of which could be embarrassing or otherwise
prejudicial to individuals or organizations.2 Indeed, the
Legislature made express findings to that effect: "(a)
The right to privacy is being threatened by the
indiscriminate collection, maintenance, and dissemination
of personal information and the lack of effective laws
and legal remedies. (b) The increasing use of computers
and other sophisticated information technology has
greatly magnified the potential risk to individual
privacy that can occur from the maintenance of personal
information. (c) In order to protect the privacy of
individuals, it is necessary that the maintenance and
dissemination of personal information be subject to
strict limits." (Civ. Code, $ 1798.1.)
Civil Code section 1798.53 is a key remedial
provision of the Information Practices Act. It provides
a civil cause of action for damages against any "person,
other than an employee of the state or of a local
government agency acting solely in his or her official
capacity, who intentionally discloses information, not
otherwise public, which they know or should reasonably
know was obtained from personal information maintained by
a state agency or from 'records' within a 'system of
records' (as these terms are defined in the Federal
Privacy Act of 1974) . . . maintained by a federal
government agency. . . ." Civil Code section 1798.53
additionally authorizes an award of exemplary damages of
at least $2,500 and attorney's fees and costs to a
successful plaintiff.
On June 10, 1993, real parties served their first
demand for production and inspection of documents. ADL
moved for a protective order on the ground that ADL is a
journalist protected by the qualified journalist's
privilege set forth in Mitchell v. Superior Court, supra,
37 Cal.3d 268. After a lengthy hearing on the motion,
the court (Judge Barbara Jones) ruled on November 17,
1993, that ADL, which publishes magazines and
newsletters, qualified as a journalist, and that ruling
is not now disputed. The court granted ADL's motion for
a protective order and denied real parties' document
request as then phrased on the ground that the latter had
failed to satisfy the criteria set forth in Mitchell v.
Superior Court, supra, 37 Cal.3d 268. The order stated
t he court would reconsider the matter if real parties
reformulated the document requests and were unsuccessful
in obtaining the information from alternative sources.
Real parties continued their discovery attempts. On
November 19, 1993, they served a second document request
on ADL. On November 24, 1993, real parties served the
San Francisco District Attorney with a subpoena for
documents referring to specified persons and
organizations that had been seized by the police
department during its investigation of ADL. On April 6,
1994, the court granted ADL's motion to quash the
subpoena "with respect to any documents that originated
with ADL or Bullock, or that were obtained, procured or
developed by ADL or Bullock." In September 1994, the
court ordered Bullock to appear for deposition to explore
only information not within the ambit of the journalist's
privilege set forth in Mitchell and to produce certain
documents . Discovery of other categories of documents
was stayed "without prejudice unless and until plaintiffs
have established, pursuant to Mitchell, their entitlement
to proceed with discovery of matters protected by the
journalist's privilege."
Mitchell v. Superior Court, supra, 37 Cal.3d 268,
holds that there is a qualified journalist's privilege in
a civil action to refuse to reveal confidential sources
or information obtained from those sources and that the
scope of the privilege depends up on a weighing of five
factors.
The first is the nature of the litigation and
whether the reporter is a party. "In general, disclosure
is appropriate in civil cases, especially when the
reporter is a party to the litigation." (Id. at p. 279.)
"A second consideration is the relevance of the
information sought to plaintiff's cause of action. . . .
[M]ere relevance is insufficient to compel discovery;
disclosure should be denied unless the information goes
'to the heart of the plaintiff's claim.'" (Id. at p.
280.) Third, discovery should be denied unless the
plaintiff has exhausted all alternative sources of
obtaining the needed information. Fourth, the court
should consider the importance of protecting
confidentiality in the case at hand. (Id. at p. 282.)
"Finally, the court may require the plaintiff to make a
prima facie showing that the alleged defamatory
statements are false before requiring disclosure." (Id.
at p. 283.)
In June 1996, real parties sought reconsideration of
the earlier limitations on discovery, arguing that they
had now satisfied the Mitchell criteria.3 Specifically,
they asked the court to order (1) ADL to produce
documents in response to their third document request,
(2) reissuance of the subpoena duces tecum to the police
department, and (3) Irwin Suall to answer certain
questions and to produce documents listed in his notice
of deposition. Real parties memorandum of points and
authorities recited the efforts undertaken since the
earlier ruling: They took the depositions of defendants
Gerard, Bullock and Hirschhaut, San Diego Sheriff's
Deputy Tim Carroll, San Francisco Police Lieutenant Ron
Roth, former Israeli Mossad agent Victor Ostrovsky and
ADL' s fact-finding director, Irwin Suall. Real parties
had reframed their document requests to seek information
solely about plaintiffs and members of the putative
class.4 Despite an order allowing real parties to
ascertain the job assignments of Roy Bullock, ADL refused
to produce documents or allow Irwin Suall, who made 95
percent of those job assignments, to identify them.
In their memorandum of points and authorities in
support of the request for reconsideration, respondents
characterized the facts that had emerged from their
discovery as follows: (1) Bullock, with Hirschhaut's
knowledge and under Suall's direction, soli cited and
received confidential information including driver's
license numbers and post office box numbers from law
enforcement officers; (2) up to half of ADL's efforts
during 1986 to 1993 were directed to obtaining
information about individuals such as real parties in
interest and organizations holding views opposing
Israel's policies or apartheid in South Africa; (3) of
the ADL files in police possession, some seven and
one-half boxes contain illegally-obtained confidential
information about individual s and organizations; (4)
Bullock and/or Hirschhaut admitted that ADL or its agents
gave information to the Government of Israel and sold
information to the Government of South Africa; (5) from
1986-1993, Bullock and Hirschhaut transmitted hundreds of
reports to Suall and other ADL offices that included
information from confidential sources or "official
friends" (law enforcement officers); (6) ADL routinely
provided information on individuals, including real party
in interest Yigal Arens, to the greater community of
12,000 ADL supporters in the Bay Area, characterizing
those opposed to Israel as propagandists using their
anti-Zionism as a guise for deeply-felt anti-Semitism;
(7) ADL's files seized by the police contained
information from confidential government files on real
parties in interest Steven Zeltzer and Jeffrey Blankfort;
(8) information on real party in interest Helen McCloskey
in ADL's files contained information that appeared to
have come from the Government of Israel; and (9) ADL's
head "fact -finder," Irwin Suall, had met with the
Israeli intelligence officials in Israel.
Respondent court heard argument on the motion to
reconsider on June 27, 1997, and filed its written order
on September 19, 1997. The court found that real parties
had met the criteria of Mitchell: (1) The news gatherers
are parties to the action; (2) the information goes to
the heart of real parties' case in that it will identify
the source of illegally-obtained information admittedly
obtained by ADL and the dissemination, if any, of such
information in violation of Civil Code section 1798.53
and article I, section 1, of the California Constitution:
(3) real parties have exhausted all reasonable
alternative sources of information and do not have any
practical way of obtaining such information from sources
other than defendants and the San Francisco Police
Department; (4) the non-public information to be
disclosed does not relate to public figures or refer to
matters of great public importance that would justify
nondisclosure under Nicholson v. McClatchy Newspaper Co.,
supra, 177 Cal.App.3d 509; (5) plaintiffs have presented
a prima facie case that defendants Bullock, Hirschhaut
and ADL have illegally solicited, obtained and
transmitted Civil Code section 1798.53 information in the
cases of plaintiffs Blankfort and Zeltzer, and there is
a reasonable probability that they have done so in the
case of the other named plaintiffs.
The court ordered the following discovery: (A)
Reissuance of the subpoena duces tecum to the San
Francisco Police Department and "in response to such
subpoena the San Francisco Police Department shall
produce for Plaintiffs' inspection and copying subject to
the Protective Order herein all non-public information
obtained by ADL from public agents which is contained in
the ADL records seized by the Police Department in 1992
and 1993." The parties are authorized to select a
discovery referee or master to be compensated by the
parties to supervise and monitor the production of the
seized records. (B) ADL is to fully respond to
Plaintiffs' third document request within 20 days by
producing the following documents: "(1) all memoranda or
documents describing or relating to the work assignments
of Roy Bullock from Irwin Suall which involve police or
other public agents; (2) each document containing
illegally-obtained non-public information relating to
Plaintiffs and individuals or organizations in their
putative class as described by Lt. Roth; (3) each item of
non-public information gathered or acquired by ADL and/or
Bullock which refer or relate to any of the named
Plaintiffs; (4) each ADL publication distributed outside
the ADL which includes the name of a Plaintiff or spouse;
(5) all 'pink' reports [indicating information had come
from confidential informant] dating from 1988 to 1993
transmitted from San Francisco as described by Bullock
which contain or refer to non-public information about
Plaintiffs' or members of organization in their putative
class; (6) any ADL communications to the ADL, 'Jewish or
larger community' identified by Mr. Hirschhaut in his
deposition which referred to Plaintiffs or their class;
and (7) a roster of the ADL 'community' as identified by
Mr. Hirschhaut." (C) Irwin Suall was to answer in
writing within 20 days specified questions that had been
propounded to him at his deposition in April 1996, and he
was to produce any documents demanded of him in his
notice of deposition that are in his possession and have
not been previously produced. (D) The time for Victor
Ostrosky to comply with the request to produce documents
not within the journalist's privilege was extended to 60
days following completion of the deposition of Irwin
Suall. II. DISCUSSION
Petitioners mount two challenges to the superior
court's ruling. First they argue that discovery from ADL
may not be compelled because ADL cannot, consistent with
free press guarantees, be liable under Civil Code section
1798.53. Petitioners' second argument is that respondent
court erred in finding that real parties in interest had
now met the Mitchell criteria to overcome the qualified
privilege.5 A.
Turning first to the question of immunity,
petitioners maintain that Civil Code section 1798.53 must
give way to a journalists free press rights, including
the right to ask for, receive and publish confidential
information from government sources.
Mitchell clearly does not provide journalists an
absolute immunity. "When called upon to weigh the
fundamental values arguing both for and against compelled
disclosure, the overwhelming majority of courts have
concluded that the question of a reporter's privilege in
civil cases must be decided on a case-by-case basis, with
the trial court examining and balancing the asserted
interests in light of the facts of the case before it.
Thus, the courts conclude, there is neither an absolute
duty to disclose n or an absolute privilege to withhold,
but instead a qualified privilege against compelled
disclosure which depends on the facts of each particular
case. [Citations.]" (Mitchell v. Superior Court, supra,
37 Cal.3d at p. 276.)
Petitioners maintain that the weighing undertaken by
the trial court in this case cannot be squared with a
series of assertedly similar cases in which it was found
that disclosure could not be punished. They rely on
Nicholson v. McClatchy Newspapers, supra, 177 Cal.App.3d
509; Alim v. Superior Court (1986) 185 Cal.App.3d 144;
Landmark Communications, Inc. v. Virginia (1978) 435 U.S.
829; and The Florida Star v. B.J.F. (1989) 491 U.S. 524.
Petitioners also find support in the California Supreme
Court's recent opinion in Shulman v. Group W Productions,
Inc. (1998) 18 Cal.4th 200. Real parties in interest
respond that the cited cases are all manifestly
distinguishable on their facts; and, indeed, that the
cases petitioners rely upon actually support disclosure
in the different circumstances presented in this case.
In Nicholson, an unsuccessful candidate for Attorney
General sued the State Bar, two newspapers, and their
reporters for damages arising from the publication of the
unauthorized disclosure of the confidential fact that the
Commission on Judicial Nominees Evaluation had found him
not qualified for judicial appointment. The causes of
action asserted against the media defendants included one
for breach of Civil Code section 1798.53 and one for
breach of the common law right of privacy by intrusion.
The trial court found that the publication was
constitutionally privileged and sustained the media
defendants' demurrers without leave to amend. The Court
of Appeal affirmed, noting that the allegations as to the
media defendants were only that they had sought out
newsworthy information which they subsequently published.
Such allegations were insufficient to avoid the effect of
the constitutional privilege. (Id. at p. 520.) There was
no allegation of impermissible reporting techniques.6 The
plaintiff was a public figure since he had recently run
for statewide office, and the evaluation of the judicial
qualifications was a newsworthy subject. (Id. at p.
515.) While the government may desire to keep some
proceedings confidential and may impose the duty upon
participants to maintain confidentiality, it may not
impose criminal or civil liability upon the press for
obtaining and publishing newsworthy information through
routine reporting techniques." (Id. at pp. 519-520.) The
court observed that although reporters are not privileged
to commit crimes and independent torts in gathering the
news, there was no allegation that any such impermissible
techniques had been employed. (Id. at pp. 519-520.)
In Alim v. Superior Court, supra, 185 Cal.App.3d
144, Walter Atlee, former Chief Deputy Director of the
Department of Veterans Affairs, sued a newspaper
reporter, editor and publisher for invasion of privacy
under Civil Code section 1798.53 and libel based on an
article containing allegedly false and confidential
information from federal Veterans Administration records
indicating that he had wrongfully received overpayments
of a veteran's disability stipend while employed. The
trial court granted the newspaper defendants' motion for
summary judgment on all causes of action but that under
Civil Code section 1798.53 on the ground that Atlee, who
was a public figure, could not prove malice under the New
York Times doctrine. (New York Times Co. v. Sullivan
(1964) 376 U.S. 254.) The trial court denied summary
judgment on the Civil Code section 1798.53 claim on the
ground that the constitutional doctrine did not apply to
it. The Court of Appeal disagreed, rejecting the claim
that an action under Civil Code section 1798.53 is not
subject to free press defenses analogous to those
available in common law actions for invasion of privacy.
The court held that a cause of action under Civil Code
section 1798.53 is subject to the New York Times actual
malice standard and that there is a privilege for
truthful publication of information bearing on the
fitness for office of a public official. (Id. at pp.
152-153.)
In Landmark Communications, Inc. v. Virginia, supra,
435 U.S. 829, the Supreme Court held that the First
Amendment did not permit the criminal punishment of a
newspaper for publishing truthful information regarding
confidential proceedings of the Virginia Judicial Inquiry
and Review Commission. "The operation of the Virginia
Commission, no less than the operation of the judicial
system itself, is a matter of public interest,
necessarily engaging the attention of the news media.
The article published by Landmark provided accurate
factual information about a legislatively authorized
inquiry pending before the Judicial Inquiry and Review
Commission and in so doing clearly served those interests
in public scrutiny and discussion of governmental affairs
which the First Amendment was adopted to protect." (Id.
at p. 839.) The court specifically noted, however, that
the case did not involve "the possible applicability of
the statute to one who secures the information by illegal
means and thereafter divulges it. We do not have before
us any constitutional challenge to a State's power to
keep the Commission's proceedings confidential or to
punish participants for breach of this mandate." (Id. at
p. 837.) The only issue before the court was whether a
newspaper could be punished for publishing truthful
information about confidential proceedings. (Ibid.)
The Florida Star v. B.J.F., supra, 491 U.S. 524,
held that a newspaper could not be held liable for
violating a state statute prohibiting the publishing of
a rape victim's name which it had obtained from a
publicly released police report. The court emphasized
that its holding was limited to the situation in which
the newspaper published truthful information that had
been lawfully obtained. (Id. at p. 541.) The court
expressly noted it was not addressing the question of
whether a newspaper may ever be punished for publishing
information that had been unlawfully acquired. (Id. at
p. 535, fn. 8.)
Shulman v. Group W Productions, Inc., supra, 18
Cal.4th 200, addressed the common law invasion of privacy
torts of public disclosure of private facts and intrusion
in an action brought by two automobile accident victims
against a television producer that videotaped and
broadcast a documentary rescue program showing the
plaintiffs' rescue and transportation to the hospital in
a medical helicopter. The court held that summary
judgment was proper as to the cause of action for
publication of private facts b ut not as to the cause of
action for intrusion. Lack of newsworthiness was held to
be an essential element of a cause of action based on a
claim that publication has given unwanted publicity to
allegedly private aspects of a person's life. The
subject matter of the broadcast as a whole was of
legitimate public concern. "Automobile accidents are by
their nature of interest to that great portion of the
public that travels frequently by automobile. The rescue
and medical treatment of accident victims is also of
legitimate concern to much of the public, involving as it
does a critical service that any member of the public may
someday need." (Id. at p. 228.) Likewise, the victim's
appearance and words as she was extricated from the
overturned car, placed in the helicopter, and transported
to the hospital were of legitimate public concern. The
intrusion cause of action, by contrast, was held not to
carry any special immunity or privilege for the press.
"In contrast to the broad privilege the press enjoy s for
publishing truthful, newsworthy information in its
possession, the press has no recognized constitutional
privilege to violate generally applicable laws in pursuit
of material. Nor, even absent an independent crime or
tort, can a highly offensive intrusion into a private
place, conversation, or source of information generally
be justified by the plea that the intruder hoped thereby
to get good material for a news story." (Id. at p. 242,
italics in original.) Thus, summary judgment was improper
as to the cause of action for intrusion based on the
cameraman's presence in the medical helicopter and the
recording and amplifying of the victim's conversations
with medical personnel. (Id. at pp. 237-238.)
The trial court found that the cases just discussed
were inapplicable because they involved newsworthy
information, plaintiffs who were public figures, or both.
According to the trial court, the non-public information
gathered about real parties was not newsworthy, and real
parties were not public figures. Petitioners challenge
these determinations, arguing that real parties are
political activists visibly engaged in public opposition
to policies of the Israeli government and have therefore
made themselves limited purpose public figures.
Petitioners rely primarily on Reader's Digest Assn.
v. Superior Court (1984) 37 Cal.3d 244; Copp v. Paxton
(1996) 45 Cal.App.4th 829; and Lind v. Grimmer (9th Cir.
1994) 30 F.3d 1115. After reviewing these authorities
and the information provided in the exhibits relating to
the political activities that real parties in interest
have undertaken, we agree that at least 14 and possibly
16 of the 17 real parties in interest must be considered
limited purpose public figures in relation to this
litigation.
The leading California case on public figures is
Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d
at pages 254-255, where Synanon, a rehabilitation program
for drug addicts, and Charles Dederich, its founder, were
held to be public figures by virtue of their myriad
attempts to thrust their case and Synanon in general into
the public eye. In reaching that conclusion, the court
traced the evolution of the public figure doctrine,
noting that it was first recognized in Curtis Publishing
Co. v. Butt s (1967) 388 U.S. 130, and subsequently
refined in Gertz v. Robert Welch, Inc. (1974) 418 U.S.
323, where "the court provided a twofold rationale for
extending the New York Times rule to 'public figures.'
First, it recognized that public figures are gene rally
less vulnerable to injury from defamation because of
their ability to resort to effective 'self help.' Such
persons ordinarily enjoy considerably greater access than
private individuals to the media and other channels of
communication. This access in turn enables them to
counter criticism and to expose the fallacies of
defamatory statements. (418 U.S. at p. 344.) Second, and
more significantly, the court cited a normative
consideration that public figures are less deserving of
protection than private persons because public figures,
like public officials, have 'voluntarily exposed
themselves to increased risk of injury from defamatory
falsehood concerning them.' (418 U.S. at p. 345; see also
Curtis Publishing Co. v. Butts, supra, 388 U.S. at p.
164 (Warren, C.J., conc. in result).)" (Reader's Digest
Assn. v. Superior Court, supra, 37 Cal.3d at p. 253.)
"Having thus explained the rationale for the public
figure classification, the Gertz decision defined two
classes of public figures. The first is the 'all
purpose' public figure who has 'achiev[ed] such pervasive
fame or notoriety that he becomes a public figure for all
purposes and in all contexts.' The second category is
that of the 'limited purpose' or 'vortex' public figure,
an individual who 'voluntarily injects himself or is
drawn into a particular public controversy and thereby
becomes a public figure for a limited range of issues.'
(418 U.S. at p. 351.) Unlike the 'all purpose' public
figure, the 'limited purpose' public figure loses certain
protection for his reputation only to the extent that the
allegedly defamatory communication relates t o his role
in a public controversy." (Reader's Digest Assn. v.
Superior Court, supra, 37 Cal.3d at pp. 253-254.)
In determining that Synanon and Dederich must be
accorded public figure status for purposes of their
defamation action, the court based its conclusion on
their efforts to thrust themselves into the public eye.
Synanon and Dederich had been the subject o f a
full-length commercial movie, four books, favorable
magazine articles in Life, Time and even Reader's Digest,
and numerous newspaper articles. "For many years Synanon
engaged in extensive publicity campaigns in which it
sought and achieved a favorable reputation as an
organization for the rehabilitation of drug addicts."
(Reader's Digest Assn. v. Superior Court, supra, 37 Cal.
3d at p. 255.) The court concluded: "While any person or
organization has the right to engage in publicity efforts
and to attempt to influence public and media opinion
regarding their cause, such significant, voluntary
efforts to inject oneself into the public arena require
that such a person or organization be classified as a
public figure in any related defamation actions. " (Id.
at p. 256.)7
In Copp v. Paxton, supra, 45 Cal.App.4th 829, a
self-proclaimed earthquake expert undertook efforts to
organize a worldwide conference on disaster mitigation.
In connection with his efforts he took issue with the
conventional duck-and-cover advice given to
schoolchildren and distributed a flyer describing his
views. After being subjected to public criticism and
attacks on his credentials, Copp brought an action for
defamation against a county emergency services officer
and others. Our colleagues in Division One of this court
concluded that Copp was a limited purpose public figure
because he had attempted to thrust himself into the
forefront of debate on emergency preparedness by
organizing a worldwide conference, passing out flyers and
speaking at public meetings. (Id. at p. 846.) In
reaching this conclusion, the court observed: "It is not
necessary to show that a plaintiff actually achieves
prominence in the public debate; it is sufficient that
'[a plaintiff] attempts to thrust himself into the public
eye' (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183,
1190) or to influence a public decision." (Id. at pp.
845-846.)
In Lind v. Grimmer, supra, 30 F.3d 1115, a
newsletter publisher brought an action challenging the
constitutionality of a Hawaii statute prohibiting
disclosure of information concerning investigations
undertaken by Hawaii's campaign spending commission. The
Ninth Circuit held the statute unconstitutional as
applied to Lind who revealed in a newsletter that he had
filed a complaint against the University of Hawaii
professional assembly alleging it had failed to disclose
certain campaign contributions. The court rejected
Hawaii's claim that it was justified in restricting
political speech about complaints before the Campaign
Spending Commission in order to promote other political
speech by candidates and their supporters. The court
observed that candidates "surely are public figures, and
therefore must be prepared to endure a heightened level
of criticism -- including charges of campaign spending
improprieties -- precisely in order to promote First
Amendment values. . . . Candidates' supporters, by
injecting themselves into public debate and attempting
financially to influence its outcome, also must be
prepared to suffer what to them may be unpleasant
discussion of their contribution practices." (Lind v.
Grimmer, supra, 30 F.3d at p. 1120.)
Petitioners contend that real parties have
sufficiently injected themselves into the maelstrom of
public debate over Israeli-Palestinian relations and
other topical issues to qualify as limited purpose public
figures. As examples, they cite declaration s and
interrogatory responses submitted by real parties Jeffrey
Blankfort and Steven Zeltzer (who the trial court found
to have made out prima facie cases of violation of their
rights under the privacy statute) describing their
interest and activities in support of Palestine and in
speaking out against Israeli policies and against
apartheid in South Africa. Blankfort stated: In 1981 he
was a charter member of the November 29th Coalition for
Palestine; in June 1982 he solicited names and funds for
an ad in the San Francisco Chronicle and Examiner
protesting the Israeli invasion of Lebanon; in 1983, he
spent four months in Israel, Lebanon, Jordan and the West
Bank as a free-lance photojournalist; in January 1987, he
organized an anti-apartheid demonstration in San
Francisco; in May 1987, he and Steve Zeltzer organized a
forum on the Middle East at a church; in November 1989,
he spoke at a conference in Boston on the connection
between Israel and South Africa; he spoke on Israeli
censorship in June 1993 at a meeting of the American
Library Association; he is the editor of the Middle East
Labor Bulletin. Zeltzer recited similar activities: He
helped Blankfort form the Labor Committee on the Middle
East in 1987 whose purpose was to provide information to
t he U.S. workers about the conditions of working people
of the Middle East and to counter anti-Arab racism in the
United States; in the early 1980s he helped form the
Committee to Free Moses Mayekiso, a South African who had
been jailed because of his union activities in defense of
Black South African workers.
We agree that the activities undertaken by Blankfort
and Zeltzer are sufficient to make them limited purpose
public figures under the authorities previously
discussed. (Accord Nadel v. Regents of University of
California (1994) 28 Cal.App.4th 1251, 1269 -1270 [public
figure status where plaintiffs played leadership role in
protesting university's plan to build volleyball courts
in People's Park by speaking at city council meetings and
demonstrations, communicating with news media, and
staffing information table at park]; Lewis v. Ueberroth
(1983) 147 Cal.App.3d 442 [public figure status where
plaintiffs were officers in organization opposing
construction of Olympics sports facilities in Sepulveda
Basin]; see also Annot., Who is "Public Figure" for
Purposes of Defamation Action (1994) 19 A.L.R.5th 1.)
We have reviewed the declarations and interrogatory
responses prepared by the fifteen other real parties in
interest and submitted as part of the exhibits to
determine whether the level of their activities was such
that they may also be found to be limit ed purpose public
figures. We conclude that all but three of the fifteen
have described sufficient involvement in Middle East
and/or South African causes to be considered public
figures for purposes of this litigation. These twelve
individuals are each energetic members of numerous
organizations dedicated to advancing human rights in the
Middle East or South Africa or have otherwise been
actively involved in such political efforts.
Jock Taft, however, does not appear to qualify as a
limited purpose public figure. So far as the record
reveals, the only pertinent activity in which he is
engaged is teaching a class on the Palestinians at U.C.
Berkeley between 1984 and 1990. Taft states that his
classes were disrupted by students allegedly connected
with ADL and may have been monitored by Bullock. Merely
teaching a university class does not, in our view,
constitute the purposeful political activity that
warrants classification as a limited purpose public
figure. Taft cannot be said to have voluntarily injected
himself into the public arena merely because he teaches
at a university.
The present record does not satisfactorily show
whether the remaining two real parties in interest --
Paula Kotakis and Margaret McCormack -- are limited
purpose public figures. The declaration of Paula Kotakis
indicates that for an unspecified period o f time she has
been active in several unidentified organizations
allegedly listed as targets of Roy Bullock's efforts to
collect information. The information about McCormack's
activities is even more sketchy. In response to an
interrogatory inquiring whether protected information
about her was disclosed, she responded: "The Palestine
Human Rights Campaign is no longer active and its office
in Washington, D.C. was burned." The record contains no
other information regarding any relevant political
activities in which Ms. McCormack may have been engaged.
As we shall remand the case, the parties will have an
opportunity to augment the record and obtain a ruling
from the trial court as to whether Paula Kotakis and
Margaret McCormack are limited purpose pub lic figures
for purposes of this litigation.
Aside from the question of public figure status,
real parties in interest still dispute petitioners' claim
of First Amendment immunity under Civil Code 1798.53 by
arguing that because their news gathering techniques were
unlawful these activities fell outside the scope of First
Amendment protection. We do not believe the alleged
unlawfulness of petitioners' information-gathering
activities is dispositive of their right to the
protection of the First Amendment. Petitioners would be
entitled to that protection even if they did violate the
statute, but only if they obtained, used and disseminated
the information at issue as journalists.
One of the unusual aspects of this case is that,
unlike most newsgathering organizations, petitioners'
activities are not limited to journalism. ADL is a tax
exempt non-profit membership organization which describes
itself in its pleadings as "a civil rights and human
relations organization [which] engages in a broad range
of activities designed to combat anti-Semitism, prejudice
and bigotry of all kinds. Through its Intergroup
Relations Division, ADL works to promote greater
understanding of Jews, Judaism and Jewish concerns, as
well as intergroup and interreligious understanding.
Through its International Affairs Division, ADL seeks to
focus attention on the security of Jews around the world
and the strategic importance of the State of Israel."
Many of the activities through which ADL seeks to
achieve the foregoing purposes are unrelated to
conventional journalism, which we conceive to be the
gathering and editing of material of current interest for
presentation through print or broadcast media , or on the
internet, and available to interested members of the
public. For example, ADL privately circulates
information, some of it "confidential," only to certain
members and persons affiliated with other groups that
share its goals.
Unfortunately, the cases arising under Civil Code
section 1798.53 do not shed a great deal of light on the
breadth of constitutionally protected journalistic
activities. Nicholson provides some guidance, at least
with respect to the gathering (as oppose d to the
dissemination) of information. That case involved a
cause of action for breach of privacy by intrusion based
upon news gathering activities similar to that at issue
here, namely, "requesting and persuading" employees of
the State Bar to engage i n the "unauthorized and
unlawful disclosure" of confidential information. (See
fn. 6, ante.) The court characterized the allegation as
simply stating that the media defendants sought out the
newsworthy information which they subsequently published
in a newspaper of general circulation. The court held
that this type of activity was within the news gathering
activities protected by the First Amendment. (Nicholson
v. McClatchy Newspapers, supra, 177 Cal.App.3d at p.
520.) In reaching this conclusion the court relied upon
Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97,
which held that the state could not punish the
publication of information obtained through routine
newspaper reporting techniques (i.e., asking witnesses,
police, and an assistant prosecutor for the youthful
offender's name).
The Nicholson court distinguished routine news
gathering techniques from those employed in Dietemann v.
Time, Inc. (9th Cir. 1971) 449 F.2d 245, where newsmen
gained entrance to the plaintiff's home by subterfuge and
surreptitiously photographed him and recorded his
conversations by means of a hidden camera and electronic
devices. Such activities were not protected by the First
Amendment, according to the Ninth Circuit Court of
Appeals. Likewise, a photographer's constant
surveillance, obtrusive and intruding presence in
photographing Jacqueline Kennedy Onassis was held to be
outside the news gathering privilege of the First
Amendment. (Galella v. Onassis (2d Cir. 1973) 487 F.2d
986.) Such conduct was contrasted with the routine news
gathering techniques which include "asking persons
questions, including those with confidential or
restricted information. While the government may desire
to keep some proceedings confidential and may impose the
duty upon participants to maintain confidentiality, it
may not impose criminal or civil liability upon the press
for obtaining and publishing newsworthy information
through routine reporting techniques." (Nicholson v.
McClatchy Newspapers, supra, 177 Cal.App.3d at pp.
519-520.)
In light of the foregoing, it is apparent that,
except with respect to Jock Taft and possibly also Paula
Kotakis and Margaret McCormack, the manner in which
petitioners allegedly obtained information about real
parties constitutes legitimate newsgathering. At least
fourteen real parties are limited purpose public figures
engaged in a newsworthy activity. The fact that ADL
apparently never published information about these
fourteen individuals in the magazines and newspapers they
publish and make available to the public is of no great
moment, as such information may well have been sought in
connection with stories that never materialized.
The problem in this case, however, relates not so
much to the manner in which petitioners may have obtained
the information in question, but the manner in which they
may have used and disseminated that information. The
case law does not address this aspect of the journalistic
enterprise since the situations it deals with are
invariably those in which the defendant published the
information in question in a newspaper or magazine
available to the public. Here, the complaint alleges
that petitioners disclosed protected non-public
information to foreign governments and other persons and
organizations with no compelling need to know such
information, in some cases for a fee. As indicated,
petitioner Bullock testified at his deposition testimony
that he ha d sold or given undisclosed information to
representatives of the government of South Africa.
Suall, ADL's chief "fact-finder," stated at his
deposition that he had met in Israel with agents of the
Mossad, the Israeli security agency, presumably for the
purpose of sharing information. If Bullock's disclosures
to South African officials involved non-public
information about real parties, or if Suall's meetings
with Israeli officials also involved disclosures of such
information, the protections of the First Amendment would
not be available, because private disclosures of such
information to foreign governments could not conceivably
constitute a legitimate and constitutionally protected
journalistic activity. Nor would the private or
"confidential" disclosure of such information to a
network consisting of members of ADL and/or affiliated
organizations not involved in journalism constitute a
protected activity.
To be sure, it has not been shown that any
information that may have been gathered by petitioners
about real parties in interest was in fact privately
disclosed to the governments of Israel or South Africa,
or to any other entities or individuals. Nonetheless,
real parties have made a showing that ADL was found by
the San Francisco Police Department to be in possession
of non-public information pertaining to certain real
parties in interest. The deposition testimony of Bullock
and Suall creates a possibility this information was
privately disclosed sufficient to justify discovery
calculated to lay the matter to rest. Accordingly, we
conclude real parties are entitled to discovery
specifically tailored to learn whether any information
gathered about them by ADL and its agents in violation of
Civil Code section 1798.53 was privately disclosed to the
government of Israel or South Africa, or to any other
agency or individual not a member of or employed by ADL,
or to any individual who was then a member or employee of
ADL for a non-journalistic purpose. B.
Our conclusion that Jock Taft is not a limited
purpose public figure (and that Paula Kotakis and
Margaret McCormack also may not be such public figures)
requires us to address petitioners' challenge to the
trial court's finding that the Mitchell criteria had been
satisfied. Petitioners assert that only one of the five
factors set forth in Mitchell has been met -- namely,
that they are parties to the litigation. According to
petitioners, the remaining four factors do not justify
disclosure in this case: (1) the importance of the
information sought to plaintiffs' case; (2) exhaustion of
all alternative sources of obtaining the needed
information; (3) the importance of protecting
confidentiality in the case at hand; and (4) making a
prima facie showing. (37 Cal.3d at pp. 279-282.)
Petitioners dispute that the information sought goes
to the heart of real parties' case. Real parties, on the
other hand, claim the information at issue is vital to
their case. They emphasize that they cannot prevail
without identifying exactly what Bullock illegally
learned about them from confidential government sources,
from whom he illegally obtained the information, and to
whom he and ADL illegally transmitted it. The complaint
alleges violation of privacy under article I, section 1,
of the California Constitution and under Civil Code
sections 1798.53 and 1798.569 as a result of a spying
operation conducted by defendants who secretly gathered
personal information about real parties in interest from
state and federal agencies and disclosed it to
individuals and entities with no compelling need to know
such information. Petitioners contend that the discovery
order goes well beyond the narrow confines of a Civil
Code section 1798.53 claim in that it is not narrowly
limited to tracking the language o f the statute.
Discovery, however, is not confined to the actual issues
framed by the pleadings. The information sought need not
be in a form that would be admissible at trial. There
need only be a reasonable prospect that it might lead to
admissible evidence. (See Hogan and Weber, 1 Cal. Civil
Discovery (1997) $ 1.5, p. 9.) In any event, petitioners
have acknowledged that their complaints about possible
overbreadth of certain requests may still be litigated
below. (See fn. 5, supra.)
Petitioners vigorously dispute the trial court's
finding that real parties have exhausted all reasonable
alternative sources of information and do not have any
practical way of obtaining such information from sources
other than defendants and the San Francisco Police
Department. According to petitioners, real parties never
made any genuine effort to find alternative sources of
the evidence they need. Petitioners argue, for example,
that real parties could establish who transmitted the
information by se eking discovery from certain
governmental agencies.
The sufficiency of real parties' discovery efforts
was argued below. Real parties deposed defendants
Bullock, Hirschhaut, and Suall, and each refused to
identify any information obtained about real parties.
They deposed Gerard and Carroll, the only po lice
officers Bullock named as sources, who denied
transmitting any of the illegally-obtained confidential
information regarding real parties Zeltzer and Blankfort
found in the possession of ADL. Real parties also
deposed Lieutenant Roth, who could not provide any useful
information due to a protective order earlier entered by
Judge Jones. The court agreed with real parties that
they had exhausted alternative sources. The finding that
real parties here, unlike those in Mitchell, had deposed
all known potential alternative sources was justified.
(See Mitchell v. Superior Court, supra, 37 Cal.3d at p.
282.)
Petitioners contend the court ignored the factor of
the importance of protecting confidentiality in the case
at hand. Mitchell directs that "when the information
relates to matters of great public importance, and when
the risk of harm to the source is a substantial one, the
court may refuse disclosure even though the plaintiff has
no other way of obtaining essential information." (37
Cal.3d at p. 283.) The information sought as to Jock Taft
does not relate to a public figure or refer to matters of
great public importance that would justify nondisclosure
under Nicholson v. Superior Court, supra, 177 Cal. 509.
This case is unlike Mitchell where the information at
issue related to criminal or unethical conduct on the
part of a powerful private organization. (Mitchell,
supra, 37 Cal.3d at p. 283.) Petitioners do not suggest
that the information sought in this case reveals improper
conduct on the part of powerful interests, but relates
only to political activity on the part of private
individuals which, so far as appears, is constitutionally
protected. Moreover, petitioners have not persuasively
shown that revelation of the information at issue would
expose them or their sources to harmful retaliation.
Finally, petitioners object to the court's finding
that real parties had satisfied the Mitchell requirement
that a prima facie showing be made. The showing that
needed to be made in Mitchell related to the falsity of
the allegedly defamatory information . The Mitchell
court explained that the routine granting of motions
seeking compulsory disclosure would emasculate the
important principle established in New York Times Co. v.
Sullivan, supra, 376 U.S. 254, and other cases, unless
the substance of the libel charge was first established.
A showing that the alleged defamatory statements are
false would tend to tip the balance in favor of discovery
since there is very little public interest in protecting
the source of false accusations of wrongdoing. (37
Cal.3d at p. 283.) Accordingly, Mitchell states that "the
court may require the plaintiff to make a prima facie
showing that the alleged defamatory statements are false
before requiring disclosure." (Ibid; italics added, fn.
omitted.)
The Mitchell court's use of the word "may" indicates
it viewed the prima facie showing as a discretionary
requirement. Requiring a prima facie showing that the
alleged defamatory statements are false before ordering
disclosure of journalists' sources makes sense in the
context of a defamation action. The information needed
to show falsity would ordinarily be readily available to
the plaintiffs. Thus, requiring such a showing before
ordering discovery would not be an onerous burden on such
parties.
As, unlike Mitchell, this is not a defamation case,
the prima facie showing that would be made here relates
not to the falsity of petitioners' statements but the
likelihood that, in violation of Civil Code section
1798.53, they intentionally disclosed in formation, not
otherwise public, which they knew or should reasonably
have known was obtained from personal information
maintained in the records of one or more government
agencies. Such a showing is harder for a plaintiff to
make in a suit under Civil C ode section 1798.53 than the
showing of falsity that may be required in a defamation
action. The defendant in a defamation action ordinarily
cannot prevent the plaintiff from independently
establishing the falsity of charges, whereas a defendant
in an action under Civil Code section 1798.53 often can
prevent the necessary showing from being made simply by
resisting disclosure. In the latter situation it may be
unfair to permit the defendant to resist discovery if,
having exhausted other possible source s of the necessary
evidence, that is the only way the plaintiff can make the
requisite showing. This possible unfairness was one of
the reasons the Mitchell court was careful not to say
that a trial court must always require the party seeking
discovery t o make a prima facie showing, stating instead
that the trial court "may" require such a showing.
(Mitchell, supra, 37 Cal.3d at p. 283.)10
Ignoring the discretionary nature of the prima facie
showing requirement, petitioners claim the court imposed
such a requirement and found that it had been met only as
to 2 of the 17 plaintiffs. According to petitioners, the
trial court ruled that 15 of the 17 plaintiffs had not
made out a prima facie case of any potential Section
1798.53 violation by ADL. This is not an accurate
characterization of the ruling.
In pertinent part, the trial court stated as
follows: "Plaintiffs have presented a prima facie case
that Defendants Bullock, Hirschhaut and ADL have
illegally solicited, obtained and transmitted Civil Code
Sec 1798.53 information in the cases of Plaintiffs
BLANKFORT and ZELTZER, and there is a reasonable
probability that they have done so in the case of the
other named Plaintiffs and members of their class." The
italicized language, which petitioners simply ignore,
amounts to a statement that the remaining fifteen
plaintiffs had either also made a prima facie showing,11
or had at least made a showing that was sufficient under
the circumstances. Since it allowed discovery to proceed
on behalf of all seventeen plaintiffs, the trial court
must have concluded that all had made the necessary
showing that petitioners violated Civil Code section
1798.53. Since imposition of the prima facie showing
requirement is not mandatory, the imposition of a
somewhat lesser standard -- if indeed that is what the
trial court had in mind -- is certainly permissible.
We agree with the finding of the trial court that
real parties in interest have met the criteria set forth
in Mitchell v. Superior Court, supra, 37 Cal.3d 268, as
to Jock Taft. It is evident, however, that the discovery
order itself is too broad and must be tailored to the
disclosure of non-public information about Jock Taft
contained in ADL files and to whom, if anyone, such
information was disclosed. C.
The discovery order must be vacated. To the extent
that the information sought was within the scope of ADL's
function as a journalist, ADL has a First Amendment
privilege as to claims by all but one, and possible two
others, of the 17 real parties in interest. As to the
real parties who do not have "public figure" status,
discovery may be ordered, but it must be tailored to
obtaining non-public information about them in ADL's
files and discovering to whom, if anyone, such
information was disclosed.
We have also concluded that, with respect to all
real parties, ADL is protected under the First Amendment
only to the extent its activities or those of its agents
constitute journalism. Thus, allegations that ADL and
its agents privately disclosed non -public information
about real parties in interest to foreign governments or
others not acting as ADL journalists are outside the
scope of the journalist's privilege. Accordingly,
discovery tailored to reveal whether such private
disclosures were made should be permitted.12 III.
DISPOSITION
The order to show cause is discharged. The petition
for writ of prohibition and/or mandate is granted, and
respondent court is directed to set aside and vacate its
September 19, 1997, order (as amended at the November 6,
1997 status conference). The parties shall bear their
own costs on appeal. CERTIFIED FOR PUBLICATION
_________________________
Kline, P. J.
We concur: _________________________
Haerle, J. ______________________
Lambden, J.
Trial Court: San Francisco Superior Court Trial Judge:
Honorable Alex Saldamando Attorneys for Petitioner:
David Goldstein Heller, Ehrman, White & McAuliffe
Attorneys for Real Parties in Interest: Audrey Shabbas
Anti-Defamation League of B'nai B'rith v.
Superior Court- A080694
1 Section 17200 of the Business and Professions Code
defines unfair competition as including any act
prohibited by Chapter 1 (commencing with section 17500)
of Part 3 of Division 7 of the Business and Professions
Code.
Section 17500 makes it unlawful for any person, firm,
corporation or association . . . to make or disseminate
or cause to be made or disseminated . . . any statement,
concerning . . . real or personal property or services,
professional or otherwise, or concerning any
circumstance or matter of fact connected with the
proposed performance or disposition thereof, which is
untrue or misleading, and which is known, or which by the
exercise of reasonable care should be known, to be untrue
or misleading . . . ."
2 Authorities trace the crisis of informational
privacy in government records to a number of factors:
(1) government's increased role in the lives of
individuals through its provision of benefits and
services and its regulation of the activities of private
and public organizations;
(2) an increasingly complex government bureaucracy's
reliance on written records, rather than face-to-face
contact or direct evaluation, for decision-making;
(3) the vogue of behavior-predictive theories of
decisionmaking, which presume that a maximum amount of
information will allow fine-grained distinctions on
decisions and predictions as to future behavior; and
(4) the unprecedented technological revolution in
information handling, storage, transfer, and
manipulation." (Note, California's Privacy Act:
Controlling Government's Use of Information? (1980) 32
Stan. L. Rev. 1001, fn. 2, citing, inter alia, Statewide
Information Policy Comm., California State Assembly,
Final Report, reprinted in 1 Cal. State Legislature,
1970 Reg. Sess., Appendix to the Journal of the
Assembly.)
3 The motion, memorandum of points and authorities,
and declarations in opposition to the motion are
included in the documents that we had ordered sealed
pursuant to ADL's request. It would be nearly
impossible, however, to write a meaningful opinion re
viewing the court's discovery order without referring to
the documents supporting and opposing the ruling. In
response to our inquiry at oral argument, ADL consented
to unsealing all exhibits we had previously ordered
sealed. Accordingly, we hereby order Exhibits 36-38, 43,
44, 45, 46, and 49 unsealed.
4 On March 3, 1997, respondent court entered a
stipulated order stating, inter alia, that the pending
discovery motions shall pertain only to the 17
individual plaintiffs, and not to the putative class they
purport to represent.
5 Petitioners acknowledge in their petition (pp.
14-15) that the only matter before the trial court on
the motion for reconsideration was ADLs objection based
on the journalists privilege and that their other
objections to discovery are still outstanding and may be
addressed after resolution of this petition. Thus,
petitioners' objection to the order to produce "a roster
of the ADL 'community' as identified by Mr. Hirschhaut"
on First Amendment freedom of association grounds (NAACP
v. State of Alabama (1 958) 357 U.S. 449; Britt v.
Superior Court (1978) 20 Cal.3d 844) may be addressed,
if necessary, and resolved upon termination of these
proceedings.
6 The cause of action for breach of privacy by
intrusion alleged that the defendants pursued and
conducted an unreasonably intrusive investigation into
Plaintiff's confidential and private affairs by means of
soliciting, inquiring, requesting and persuading agents,
employees and members of the State Bar to engage in the
unauthorized and unlawful disclosure of information
[knowing such information to be confidential].'"
(Nicholson v. McClatchy Newspapers, supra, 177
Cal.App.3d at p. 520.)
7 The California Supreme Court recently addressed the
definition of a public figure for purposes of tort and
First Amendment law in Khawar v. Globe International,
Inc. (1998) ___ Cal.4th ___ (98 Daily Journal D.A.R.
11307) where it held that plaintiff Khawar, who was
photographed near Senator Robert Kennedy shortly before
the Senator's assassination, was not a public figure.
Khawar's appearance near Kennedy was not conduct by
which he thrust himself into the limelight in an attempt
to influence the resolution of issues. Mere association
with a matter that attracts public attention, such as
Senator Kennedy's candidacy, does not transform one into
a public figure in the absence of some purposeful
activity to invite public comment or to influence the
public with relation to some issue. (Id. at p. 11310.)
8 Victor A. Ajlouny, Yigal Arens, Amal
Barkouki-Winter, Manuel Dudum, Carol El-Shaieb, Stephen
B. Mashney, Helen Hooper McCloskey, Donald E. McGaffin,
Anne Poirer, Agha Saeed, Audrey Park Shabbas and Marianne
Torres.
9 Civil Code section 1798.56 provides: Any person who
willfully requests or obtains any record containing
personal information from an agency under false
pretenses shall be guilty of a misdemeanor and fined not
more than five thousand dollars ($5,000), o r imprisoned
not more than one year, or both."
10 The other reasons suggested in Mitchell for not
imposing the prima facie showing requirement is that it
is closely related to another requirement, that there be
no or little public interest in protecting
confidentiality. (Ibid.)
11 Prima facie evidence is simply that evidence which
will support a ruling in favor of its proponent if no
controverting evidence is presented. (People v. Bell
(1989) 49 Cal.3d 502, 554 . . . (conc. opn. of Kaufman,
J.); 9 Wigmore on Evidence (Chadbourn rev. 1981)
Sufficiency of Evidence, $ 2494, pp. 379, 381, 387;
Black's Law Dict. (5th ed. 1979) p. 1071.) It may be
slight evidence which creates a reasonable inference of
fact sought to be established but need not eliminate all
contrary inferences. ( People v. Towler (1982) 31 Cal.3d
105, 115 . . .)" (Evans v. Paye (1995) 32 Cal.App.4th
265, 280, fn. 13.)
12 Petitioners raised some procedural objections in
their reply memorandum that merit mention. They claim
that real parties failed to file a verified answer or
demurrer as required by rule 56(e), California Rules of
Court. Real parties, however, did file a verified answer
and return to the order to show cause. Petitioners also
object to the exhibits filed by real parties with their
verified answer and return on the ground that many of
the documents contained therein were not before the
trial court at the time of its ruling. Since we are
reviewing the trial court's ruling, it is improper to
consider documents that were not before the trial court.
Accordingly, we have not considered matters not presented
below.
