Case 1:07-cv-01112-OWW -GSA Document 18 Filed 03/11/08 Page 1 of 21 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 6 ANGELA YOW, 1:07-CV-1112-OWW-GSA 7 Plaintiff, 8 MEMORANDUM DECISION AND ORDER v. RE GRANTING DEFENDANT’S MOTION 9 TO DISMISS (DOC. 8) NATIONAL ENQUIRER, INC. and 10 DOES 1 through 50 11 Defendants. 12 1. INTRODUCTION 13 Defendant National Enquirer, Inc. (“National Enquirer”) 14 moves to dismiss Plaintiff Angela Yow’s (“Yow”) complaint for 15 failure to state a claim upon which relief can be granted 16 pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff’s complaint 17 alleges a cause of action for defamation per se arising from 18 statements made in the publication of the August 21, 2006 edition 19 of the National Enquirer. Diversity jurisdiction is invoked 20 under 28 U.S.C. § 1332, based on the parties' citizenship in 21 different states and the amount in controversy in excess of the 22 $75,000 jurisdictional minimum. Oral argument on this matter was 23 heard on February 11, 2008. 24 2. PROCEDURAL BACKGROUND 25 Plaintiff filed her complaint on July 31, 2007. (Doc. 1, 26 Complaint) Defendant National Enquirer moved to dismiss the 27 Complaint on October 2, 2007. (Doc. 8, Motion) Plaintiff opposed 28 1 Case 1:07-cv-01112-OWW -GSA Document 18 Filed 03/11/08 Page 2 of 21 1 the Motion on November 5, 2007. (Doc. 11, Opposition) Defendant 2 filed its reply to Plaintiff’s Opposition on November 26, 2007. 3 (Doc. 13, Reply) 3. FACTUAL HISTORY 4 In its August 21, 2006 weekly edition, the National Enquirer 5 magazine published a story alleging that the well-known film 6 celebrity Mel Gibson had traveled to Modesto, California in 1990, 7 and engaged in a binge of drinking, cocaine use, and sexual 8 promiscuity. (Doc. 1, Complaint, ¶ 7) The following passage of 9 the National Enquirer August 21, 2006 story, alleged in haec 10 verba in Plaintiff’s Complaint, form the basis for ANGELA YOW’s 11 claim for defamation: 12 During one binge at a Modesto, California bar, Mel not 13 only swooped down on many of the women but also did drugs, charges a source. 14 He was snorting cocaine in a back room surrounded by girls at the Easy Street Saloon back in 1990, according 15 to the source, who barged in on the party. “Mel was huddled over a small mound of cocaine on top of the 16 glass-topped desk. “He was snorting through a small brass tube. 17 “There were four or five women around the table with him who were sharing the coke with him.” 18 When the manager learned what was going on, Mel and company were shown the door according to the source. 19 “They escorted him out with a couple of girls in tow to continue the party elsewhere.” 20 On that same trip to Modesto, Fred Yow told The ENQUIRER his daughter brought Mel home after a wild 21 night. “Mel ended up sleeping with her friend. He wanted to 22 sleep with my daughter Angela, but I told him if he tried to I’d break his face!” 23 (Doc. 1, Complaint, ¶ 9 and Exhibit A to the Complaint)1 24 Plaintiff alleges that the words of the offending passage 25 quoted above although not literally stating that Plaintiff 26 27 1 The National Enquirer article of August 21, 2006 story is 28 attached to the Complaint as Exhibit A. 2 Case 1:07-cv-01112-OWW -GSA Document 18 Filed 03/11/08 Page 3 of 21 1 snorted cocaine with film personality Mel Gibson, have the 2 meaning and would be understood by the ordinary reasonable reader 3 as communicating precisely that Plaintiff ANGELA YOW was one of 4 the “four or five women” who snorted cocaine with Mel Gibson, a 5 felony under the law. (Doc. 1, Complaint, ¶ 10) Plaintiff 6 alleges the article asserts that ANGELA YOW was one of the couple 7 of girls with whom Mel Gibson left the Easy Street Saloon after 8 the manager of the saloon discovered that Mel and a group of 9 “four or five women,” including the couple of girls who left the 10 saloon with Gibson, were snorting cocaine with Gibson. Plaintiff 11 asserts the ordinary reasonable reader would understand the 12 article to convey the meaning that the couple of girls who left 13 with Gibson from the Easy Street Saloon were the same two women, 14 who went on to continue “a wild night” with Gibson, referred to 15 in the sentences that immediately follow, in the next paragraph, 16 which actually name Plaintiff. (Doc. 1, Complaint, ¶ 11) 17 Plaintiff alleges in her Complaint that the passage is false as 18 she did not use cocaine with Mel Gibson, was not in the presence 19 of cocaine that evening, nor did she witness anyone using 20 cocaine, nor has she ever used cocaine. (Doc. 1, Complaint, ¶ 12) 21 Plaintiff alleges the defamatory statements proximately caused 22 damages to her reputation, and inflicted severe emotional 23 distress, humiliation, anguish, and embarrassment. (Doc. 1, 24 Complaint, ¶ 16) Plaintiff is a private figure for purposes of 25 this defamation action. 26 4. JURISDICTION 27 Plaintiff is a citizen and resident of the state and Eastern 28 District of California. (Doc. 1, Complaint, ¶ ¶ 1, 15) Defendant 3 Case 1:07-cv-01112-OWW -GSA Document 18 Filed 03/11/08 Page 4 of 21 1 is a corporation with its principal place of business in Florida 2 and the publisher of a weekly tabloid magazine. (Doc. 1, 3 Complaint, ¶¶ 1, 4) The Complaint seeks damages in excess of 4 $75,000, exclusive of interest and costs. Jurisdiction exists 5 under 28 U.S.C. § 1332. 6 5. STANDARD OF REVIEW 7 A. 12(b)(6) MOTION 8 Fed. R. Civ. P. 12(b)(6) provides that a motion to dismiss 9 may be made if the plaintiff fails “to state a claim upon which 10 relief can be granted.” However, motions to dismiss under Fed. 11 R. Civ. P. 12(b)(6) are disfavored and rarely granted. Gilligan 12 v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir. 1997). 13 In deciding whether to grant a motion to dismiss, the Court 14 “accept[s] all factual allegations of the complaint as true and 15 draw[s] all reasonable inferences” in the light most favorable to 16 the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th 17 Cir. 1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 18 (9th Cir. 2002). A court is not “required to accept as true 19 allegations that are merely conclusory, unwarranted deductions of 20 fact, or unreasonable inferences.” Sprewell v. Golden State 21 Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 22 The question presented is not whether the plaintiff will 23 ultimately prevail; rather, it is whether the plaintiff could 24 prove any set of facts in support of her claim that would entitle 25 her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73 26 (1984). “A complaint should not be dismissed unless it appears 27 beyond doubt that plaintiff can prove no set of facts in support 28 of his claim which would entitle him to relief.” Van Buskirk v. 4 Case 1:07-cv-01112-OWW -GSA Document 18 Filed 03/11/08 Page 5 of 21 1 CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (citations omitted). 2 6. STATE CLAIMS 3 Plaintiff alleges in her Complaint one cause of action for 4 defamation per se. 5 A. DEFAMATION PER SE 6 Defendant moves to dismiss Plaintiff’s claim on the ground 7 that the portion of the article Plaintiff alleges to be 8 defamatory per se is not “of and concerning” Plaintiff. 9 Plaintiff’s claim is for defamation per se against Defendant 10 National Enquirer. Plaintiff asserts: 11 8. The National Enquirer story named the Plaintiff ANGELA YOW as one of the group of “four to five women” 12 who engaged in illicit activity with Mel Gibson. The stor[y] would have been understood by the ordinary 13 reasonable reader as communicating the defamatory allegation that the Plaintiff ANGELA YOW used cocaine 14 with Mel Gibson and the other woman referred to in the story. 15 --- 10. The offending passage quoted above in paragraph 9 16 does not literally state "ANGELA YOW snorted cocaine with Mel Gibson.” The passage quoted above in Paragraph 17 9, however, would be understood by the ordinary reasonable reader as communicating precisely that. The 18 ordinary reasonable reader would conclude that the passage was intended to convey the meaning, and did in 19 fact convey the meaning that Plaintiff ANGELA YOW snorted cocaine with Mel Gibson. 20 11. The ordinary reasonable reader would understand the passage quoted above in paragraphs 9 as intended to 21 convey, and as in fact conveying, the following meaning: Angela YOW was on[e] of the two girls with 22 whom Mel Gibson left the Easy Street Saloon, after the manager of the saloon discovered that Mel and a group 23 of "four or five women," including the two women who left the saloon with Gibson, were snorting cocaine with 24 Gibson... --- 25 13. The passage...is defamatory per se, in that the plain and manifest meaning of the passage is that 26 ANGELA YOW used cocaine, a felony.