Yow v. National Enquirer, Inc. , 550 F. Supp. 2d 1179 ( 2008 )

(2008)

Angela YOW, Plaintiff,
v.
NATIONAL ENQUIRER, INC. and Does 1 through 50, Defendants.

No. 1:07-CV-1112-OWW-GSA.

United States District Court, E.D. California.

March 11, 2008.

MEMORANDUM DECISION AND ORDER RE GRANTING DEFENDANT'S MOTION TO DISMISS (DOC. 8)

OLIVER W. WANGER, District Judge.

1. INTRODUCTION

Defendant National Enquirer, Inc. ("National Enquirer") moves to dismiss Plaintiff Angela Yow's ("Yow") complaint for failure to state a claim upon which relief can be granted pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiffs complaint alleges a cause of action for defamation per se arising from statements made in the publication of the August 21, 2006 edition of the National Enquirer. Diversity jurisdiction is invoked under 28 U.S.C. § 1332, based on the parties' citizenship in different states and the amount in controversy in excess of the $75,000 jurisdictional minimum. Oral argument on this matter was heard on February 11, 2008.

2. PROCEDURAL BACKGROUND

Plaintiff filed her complaint on July 31, 2007. (Doc. 1, Complaint) Defendant National Enquirer moved to dismiss the Complaint on October 2, 2007. (Doc. 8, Motion) Plaintiff opposed the Motion on November 5, 2007. (Doc. 11, Opposition) Defendant filed its reply to Plaintiffs Opposition on November 26, 2007. (Doc. 13, Reply)

3. FACTUAL HISTORY

In its August 21, 2006 weekly edition, the National Enquirer magazine published a story alleging that the well-known film celebrity Mel Gibson had traveled to Modesto, California in 1990, and engaged in a binge of drinking, cocaine use, and sexual promiscuity. (Doc. 1, Complaint, ¶ 7) The following passage of the National Enquirer August 21, 2006 story, alleged in haec verba in Plaintiffs Complaint, form the basis for ANGELA YOW's claim for defamation:

During one binge at a Modesto, California bar, Mel not only swooped down on many of the women but also did drugs, charges a source.

He was snorting cocaine in a back room surrounded by girls at the Easy Street Saloon back in 1990, according to the source, who barged in on the party. "Mel was huddled over a small mound of cocaine on top of the glass-topped desk". "He was snorting through a small brass tube."

"There were four or five women around the table with him who were sharing the coke with him."

When the manager learned what was going on, Mel and company were shown the door according to the source.

"They escorted him out with a couple of girls in tow to continue the party elsewhere."

On that same trip to Modesto, Fred Yow told The ENQUIRER his daughter brought Mel home after a wild night. "Mel ended up sleeping with her friend. He wanted to sleep with my daughter Angela, but I told him if he tried to I'd break his face!"

(Doc. 1, Complaint, ¶ 9 and Exhibit A to the Complaint)^[1]

Plaintiff alleges that the words of the offending passage quoted above although not literally stating that Plaintiff snorted cocaine with film personality Mel Gibson, have the meaning and would be understood by the ordinary reasonable reader as communicating precisely that Plaintiff ANGELA YOW was one of the "four or five women" who snorted cocaine with Mel Gibson, a felony under the law. (Doc. 1, Complaint, ¶ 10) Plaintiff alleges the article asserts that ANGELA YOW was one of the couple of girls with whom Mel Gibson left the Easy Street Saloon after the manager of the saloon discovered that Mel and a group of "four or five women," including the couple of girls who left the saloon with Gibson, were snorting cocaine with Gibson. Plaintiff asserts the ordinary reasonable reader would understand the article to convey the meaning that the couple of girls who left with Gibson from the Easy Street Saloon were the same two women, who went on to continue "a wild night" with Gibson, referred to in the sentences that immediately follow, in the next paragraph, which actually name Plaintiff. (Doc. 1, Complaint, ¶ 11) Plaintiff alleges in her Complaint that the passage is false as she did not use cocaine with Mel Gibson, was not in the presence of cocaine that evening, nor did she witness anyone using cocaine, nor has she ever used cocaine. (Doc. 1, Complaint, ¶ 12) Plaintiff alleges the defamatory statements proximately caused damages to her reputation, and inflicted severe emotional distress, humiliation, anguish, and embarrassment. (Doc. 1, Complaint, ¶ 16) Plaintiff is a private figure for purposes of this defamation action.

4. JURISDICTION

Plaintiff is a citizen and resident of the state and Eastern District of California. (Doc. 1, Complaint, ¶¶ 11, 15) Defendant is a corporation with its principal place of business in Florida and the publisher of a weekly tabloid magazine. (Doc. 1, Complaint, ¶¶ 1, 4) The Complaint seeks damages in excess of $75,000, exclusive of interest and costs. Jurisdiction exists under 28 U.S.C. § 1332.

5. STANDARD OF REVIEW

A. 12(b)(6) MOTION

Fed.R.Civ.P. 12(b)(6) provides that a motion to dismiss may be made if the plaintiff fails "to state a claim upon which relief can be granted." However, motions to dismiss under Fed.R.Civ.P. 12(b)(6) are disfavored and rarely granted. Gilligan v. Jamco Development Corp., 108 F.3d 246, 249 (9th Cir.1997). In deciding whether to grant a motion to dismiss, the Court "accept[s] all factual allegations of the complaint as true and draw[s] all reasonable inferences" in the light most favorable to the nonmoving party. TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir.1999); see also Rodriguez v. Panayiotou, 314 F.3d 979, 983 (9th Cir.2002). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001).

The question presented is not whether the plaintiff will ultimately prevail; rather, it is whether the plaintiff could prove any set of facts in support of her claim that would entitle her to relief. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). "A complaint should not be dismissed unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir.2002) (citations omitted).

6. STATE CLAIMS

Plaintiff alleges in her Complaint one cause of action for defamation per se.

A. DEFAMATION PER SE

Defendant moves to dismiss Plaintiffs claim on the ground that the portion of the article Plaintiff alleges to be defamatory per se is not "of and concerning" Plaintiff. Plaintiffs claim is for defamation per se against Defendant National Enquirer. Plaintiff asserts:

8. The National Enquirer story named the Plaintiff ANGELA YOW as one of the group of "four to five women" who engaged in illicit activity with Mel Gibson. The stor[y] would have been understood by the ordinary reasonable reader as communicating the defamatory allegation that the Plaintiff ANGELA YOW used cocaine with Mel Gibson and the other woman referred to in the story.

10. The offending passage quoted above in paragraph 9 does not literally state "ANGELA YOW snorted cocaine with Mel Gibson." The passage quoted above in Paragraph 9, however, would be understood by the ordinary reasonable reader as communicating precisely that. The ordinary reasonable reader would conclude that the passage was intended to convey the meaning, and did in fact convey the meaning that Plaintiff ANGELA YOW snorted cocaine with Mel Gibson.

11. The ordinary reasonable reader would understand the passage quoted above in paragraphs 9 as intended to convey, and as in fact conveying, the following meaning: Angela YOW was on[e] of the two girls with whom Mel Gibson left the Easy Street Saloon, after the manager of the saloon discovered that Mel and a group of "four or five women," including the two women who left the saloon with Gibson, were snorting cocaine with Gibson ...

13. The passage ... is defamatory per se, in that the plain and manifest meaning of the passage is that ANGELA YOW used cocaine, a felony.

14. The Defendant, National Enquirer, Inc., published the false defamatory statements with negligence and with actual malice, with knowledge of falsity or reckless disregard for truth or falsity.

(Doc. 1, Complaint, ¶¶ 8, 10-11, 13)

Plaintiff seeks general damages, punitive damages, an apology and retraction. (Doc. 1, Complaint, ¶ 17)

Defamation per se occurs when a statement, is defamatory on its face, that is untrue. A defamation per se claim is actionable without proof of special damages. Defamation can take the form of slander or libel. The definition of libel on its face is: "[a] libel [writing] which is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact, is said to be a libel on its face." Cal. Civ.Code § 45a. A statement is libelous per se if it defames the plaintiff on its face, that is, without the need for extrinsic evidence to explain the statement's defamatory nature. "Material libelous per se is a false and unprivileged publication by writing which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation." Washburn v. Wright, 261 Cal.App.2d 789, 797, 68 Cal.Rptr. 224 (Cal. Ct.App.1968).

"An allegation the plaintiff is guilty of a crime is libelous on its face." Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles, 117 Cal. App.4th 1138, 1145 fn. 7, 12 Cal.Rptr.3d 493 (Cal.Ct.App.2004); Barnes-Hind, Inc. v. Sup.Ct, 181 Cal.App.3d 377, 385, 226 Cal.Rptr. 354 (1986) ("Perhaps the clearest example of libel per se is an accusation of crime.") Statements which falsely impute the commission of a crime are libelous on their face. See Snider v. Nat'l Audubon Soc'y. Inc., No. CV-F-91-665 REC, 1992 WL 182186, at *5, 1992 U.S. Dist. Lexis 10017, at *15, 1992 WL 182186 (E.D.Cal. April 14, 1992) (denying motion to dismiss where "the clear implication from the article is that plaintiff is being investigated by the I.R.S.")

"In defamation actions the First Amendment also requires that the statement on which the claim is based must specifically refer to, or be ``of and concerning,' the plaintiff in some way." Blatty v. New York Times Co., 42 Cal.3d 1033, 1042, 232 Cal.Rptr. 542, 728 P.2d 1177 (1986) (one cannot constitutionally establish liability unless one proves that the contested statements are "of and concerning" the individual, either by name, i.e. refer personally to the individual, or by "clear implication"); Ferlauto v. Hamsher, 74 Cal. App.4th 1394, 1404, 88 Cal.Rptr.2d 843 (Cal.Ct.App.1999); Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151, 1153 (N.D.Cal.1983) ("The courts have chosen not to limit freedom' of public discussion except to prevent harm occasioned by defamatory statements reasonably susceptible of special application to a given individual."); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F.Supp.2d 1035, 1044 (C.D.Cal.1998) ("In defamation actions, the First Amendment requires the plaintiff to establish that the statement on which the claim is based is ``of and concerning' the plaintiff); D.A.R.E. America v. Rolling Stone Magazine, 101 F.Supp.2d 1270, 1289 (C.D.Cal.2000) ("The First Amendment requires a plaintiff to establish that the statement on which the defamation claim is based is ``of and concerning' the plaintiff") The "of and concerning" requirement does not require that Plaintiff allege that Defendant referred to Plaintiff by name as long as Plaintiff "may be identified by clear implication." Blatty, 42 Cal.3d at 1044 fn. 1, 232 Cal.Rptr. 542, 728 P.2d 1177. "Under California law, ``[t]here is no requirement that the person defamed be mentioned by name ... It is sufficient if from the evidence the jury can infer that the defamatory statement applies to the plaintiff ... [or] if the publication points to the plaintiff by description or circumstances tending to identify him.'" Church of Scientology of California v. Flynn, 744 F.2d 694, 697 (9th Cir.1984) (quoting Di Giorgio Fruit Corp. v. AFL-CIO, 215 Cal. App.2d 560, 569, 30 Cal.Rptr. 350, 355 (1963)).

In a defamation action the threshold question is whether the statement on which a plaintiffs claim is based, specifically refers to, or is "of and concerning" Plaintiff YOW in some way. If the Court finds the statements are "of and concerning" Plaintiff, then the Court undertakes the analysis whether the statements are capable of conveying defamatory meaning and it is for the jury to determine if it was so understood. See Couch v. San Juan Unified School Dist, 33 Cal.App.4th 1491, 1500, 39 Cal.Rptr.2d 848 (Cal.Ct.App.1995) (whether a statement is "reasonably susceptible of an interpretation which implies a provably false assertion of fact-the dispositive question in a defamation action-is a question of law for the court."); see also Isuzu Motors Ltd., 12 F.Supp.2d at 1044-48.

Plaintiffs Opposition skips to the second part of the analysis in their argument and does not address the "of and concerning" portion, on the basis that YOW is mentioned in the article itself. Plaintiff does not extensively address the "of and concerning" requirement.^[2] Plaintiff argues:

All Yow must plead are facts sufficient to permit this Court to determine that a reasonable jury could conclude that a reasonable reader could have understood the Enquirer article as communicating the false and defamatory statement that Yow used cocaine. The Court need not find that Yow's reading of the article is the only permissible meaning that might reasonably be ascribed to it. The Court need not find that it is the necessary construction. The Court must merely be satisfied that one of the reasonable meanings of the Enquirer article is that Yow used cocaine.

(Doc. 11, Opposition, p. 3:17-23) Plaintiff concedes that she must demonstrate the allegation of cocaine use is "of and concerning," her, as compelled by both common-law and constitutional law doctrine but denies that Blatty stands for the clear implication rule. Plaintiff attempts to distinguish Blatty as an injurious falsehood claim: "The phrase was rather a mere point of emphasis underscoring the importance of not letting defamation cases proceed when there is nothing palpable to demonstrate the defamation targeted plaintiff." (Id. at p. 6:5-7)

Other district courts in the Ninth Circuit and California state courts have interpreted Blatty to mean that the individual must be specifically referred or be identifiable by clear implication in defamation cases. See Ferlauto, 74 Cal.App.4th at 1404, 88 Cal.Rptr.2d 843 ("He cannot constitutionally establish liability unless he proves that the contested statements are ``of and concerning,' him either by name or by ``clear implication.'") (citing Blatty, 42 Cal.3d at 1046, 232 Cal.Rptr. 542, 728 P.2d 1177); Church of Scientology of California, 744 F.2d at 697; Isuzu Motors Ltd., 12 F.Supp.2d at 1044-45 (C.D.Cal.1998) ("To satisfy this requirement, ``the plaintiff must effectively plead that the statement at issue either expressly mentions him or refers to him by reasonable implication.'") (citing Blatty, 42 Cal.3d at 1046, 232 Cal. Rptr. 542, 728 P.2d 1177); D.A.R.E. America, 101 F.Supp.2d at 1289 ("To satisfy this requirement, ``the plaintiff must effectively plead that the statement at issue either expressly mentions him or refers to him by reasonable implication.'") (citing Blatty, 42 Cal.3d at 1046, 232 Cal.Rptr. 542, 728 P.2d 1177).

Plaintiffs Opposition cites cases that do not address the "of and concerning" requirement. In Condit v. National Enquirer, Inc., 248 F.Supp.2d 945 (E.D.Cal. 2002), the Plaintiff was the wife of former Congressman Gary A. Condit and the statements at issue alleged that she phoned his Washington D.C. apartment and verbally attacked intern Ms. Chandra Levy before Ms. Levy's disappearance. While the court addressed the question of defamatory meaning, "of and concerning" was not at issue. Eastwood v. National Enquirer, 123 F.3d 1249 (9th Cir.1997), does not address whether the article or statements were "of and concerning" Clint Eastwood. That decision presumed the article was "of and concerning" and addressed whether actual malice could be inferred from labeling the interview as "exclusive," by its use of the phrase "Exclusive Interview" on the front page, suggesting that Mr. Eastwood willingly gave an "exclusive interview to the Enquirer." In Solano v. Playgirl, 292 F.3d 1078 (9th Cir.2002), an actor, formerly on the T.V. series Baywatch, was featured on the cover of adult magazine Playgirl shirtless and wearing lifeguard trunks. The magazine was known for its nude photographs of men. Plaintiff sued the magazine for false light and misappropriation of his likeness. Plaintiff alleged that the cover photo of him intentionally created the false impression that he appeared nude in a photograph in the interior of the magazine and by inference that Plaintiff was willing to degrade himself and endorse the magazine. The Court did not address an "of and concerning" issue. Kaelin v. Globe Communications Corp., 162 F.3d 1036, 1037 (9th Cir.1998) analyzed whether the headline "COPS THINK KATO DID IT!" "falsely insinuated that the police believed that [plaintiff Kato Kaelin] committed [murder]," not whether the headline was "of and concerning" Kaelin.

Plaintiffs Complaint replicates portions of the August 21, 2006 National Enquirer Article, titled "Mel Gibson, Shocking Tell-All!, 15 Years of Affairs, His Cocaine Frenzy." Plaintiffs claim for defamation per se centers around two defamatory statements: "There were four or five women around the table with him who were sharing the coke with him." and "They [Easy Street Saloon] escorted him out with a couple of girls in tow to continue the party elsewhere." Plaintiff is mentioned in the paragraph thereafter, in the next three sentences, which state: "On that same trip to Modesto, FRED YOW told the National Enquirer his daughter brought Mel home after a wild night. ``Mel ended up sleeping with her friend. He wanted to sleep with my daughter Angela, but I told him if he tried ...'"

Plaintiff does not allege the statements that specifically mention her are defamatory per se, rather that the statements that precede the text in which she is identified, are defamatory per se, and can be reasonably interpreted to refer to her. She argues that the statements alleging that four or five unidentified woman allegedly doing coke with Mel Gibson at Easy Street Saloon, included her and are defamatory per se. She characterizes the statements concerning a couple of girls who left in tow with Gibson (those couple of girls are reasonably inferred to be part of the four or five women who engaged in coke use with Mr. Gibson) to continue the party elsewhere are defamatory per se to her.

While Plaintiff alleges in one paragraph of her Complaint, that the "The story would have been understood by the ordinary and reasonable reader as communicating the defamatory allegation ... YOW used cocaine with Mel Gibson and the other women referred to in the story," (Doc. 1, Complaint, ¶ 8), the Complaint pinpoints one, or possibly two defamatory statements: That four or five women engaged in cocaine with Mel Gibson at the Easy Street Saloon; a couple of those girls left the Saloon with Mel Gibson; and Plaintiff should be deemed to be one of the women. Plaintiffs Complaint mentions no less than five times in its five pages that the article defames her by conveying the meaning' that she was one of the "four or five women" using cocaine with Gibson at Easy Street Saloon and/or one of the "couple of girls [Gibson had] in tow;" who were escorted out of the Easy Street Saloon:

"The stor[y] would have been understood by the ordinary and reasonable reader as communicating the defamatory allegation that the Plaintiff ANGELA YOW used cocaine with Mel Gibson and the other women referred to in the story" (Doc. 1, Complaint, ¶ 8)

"The offending passage quoted above in paragraph 9 does not literally state ``ANGELA YOW snorted cocaine with Mel Gibson.' The passage quoted above in Paragraph 9, however, would be understood by the ordinary reasonable reader as communicating precisely that." (Id. at ¶ 10)^[3]

"The ordinary reasonable reader would conclude that the passage was intended to convey the meaning, and did in fact convey the meaning that Plaintiff ANGELA YOW snorted cocaine with Mel Gibson." (Id.)

"The ordinary reasonable reader would understand the passage quoted above in paragraphs 9 as intended to convey, and as in fact conveying, the following meaning: Angela YOW was on[e] of the two girls with whom Mel Gibson left the Easy Street Saloon, after the manager of the saloon discovered that Mel and a group of ``four or five women,' including the two women who left the saloon with Gibson, were snorting cocaine with Gibson." (Id. at 11)

"The natural and logical reading of the passage is that the two women who left with Gibson from the Easy Street, Saloon were the same two women who went on to continue the ``wild night' with Gibson referred to in the sentence immediately followed." (Id.)

"Those two women, one of whom was identified as Plaintiff, ANGELA YOW, were plainly intended to be understood, and would have been understood, as two of the ``four or five' women in the group who were alleged to have been using cocaine with Gibson." (Id.)

"Thus the Plaintiff ANGELA YOW would clearly be understood by the ordinary reasonable reader as one of the women at Easy Street Saloon who shared cocaine with Gibson." (Id.)

The statements about four or five women doing coke with Mel Gibson at Easy Street Saloon and the couple of girls in tow who left the saloon with Mel Gibson, do not specifically identify Plaintiff ANGELA YOW by name. It must be determined from the reference to cocaine use by "four or five women" at Easy Street Saloon and the "the couple of girls in tow" that left with Mel Gibson, whether the statements are "of and concerning" Plaintiff by clear implication, to enable a jury to infer that Plaintiff and her friend were the couple of girls who left in tow with Mel Gibson, after being escorted out, and who had used cocaine in the back room. "The ``of and concerning' or specific reference requirement limits the right of action for injurious falsehood, to those who are direct object of criticism and denies it to those who merely complain of nonspecific statements that they believe cause them some hurt." Blatty, 42 Cal.3d at 1044, 232 Cal. Rptr. 542, 728 P.2d 1177.

To survive a motion to dismiss, "the plaintiff must effectively plead that the statement at issue either expressly mentions [her] or refers to [her] by reasonable implication." Id. at 1046, 232 Cal. Rptr. 542, 728 P.2d 1177. The paragraphs that describe cocaine use by Mel Gibson with the "four or five women" commences with

"During one binge at a Modesto, Calif., bar ..." It goes on the describe:

"He was snorting cocaine in a back room surrounded by girls at the Easy Street Saloon back in 1990,

The article then continues:

"There were four or five women around the table with him who were sharing the coke with him."

The article then states:

"They escorted him out with a couple of the girls in tow to continue the party elsewhere."

The introductory phrase to the paragraph which specifically names Plaintiff begins with:

"On that same trip to Modesto ... his daughter brought Mel home after a wild night."

From this text, the following questions are raised: whether Plaintiff was one of the "four or five women" engaging in cocaine use with Mel Gibson in a back room at the Easy Street Saloon; and/or whether she was one of the "many women" Mel "swooped down on;" and/or who are the unspecific persons included in the words "Mel and company;" and/or whether she was one of the "couple of girls" who left in tow with Gibson, and/or whether either of those "couple of girls" was among the group of four or five women with whom Gibson had used cocaine; and/or whether the words in the next paragraph that start: "On that same trip," denotes a separate incident when Gibson arrived at YOW's residence and was confronted by her father from the night cocaine was used at the Easy Street Saloon.

Examining the statements in context and the totality of the article the most natural reading of the defamatory statements and the subsequent statements that mention Plaintiff by name, is that the defamatory statements concerning cocaine use with Mel Gibson expressly describes four to five unidentified women, who surrounded Gibson on a particular night at the Easy Street Saloon, where they snorted a mound of cocaine. This may or may not be "a wild night" in which Mel Gibson engaged in an extramarital affair with Plaintiffs friend. The cocaine use was during the "same trip," but not necessarily the same night that ANGELA YOW brought Mel Gibson home to her father's residence after a wild night. The phrases are set forth in separate paragraphs, one of which begins with the words "On that same trip," which suggests that the Easy Street incident was not the same night YOW brought Gibson home. The title to the articles exposits that the article concerns not only cocaine use by Mel Gibson but his extra-marital affairs. The YOW incident describes an extramarital affair with Plaintiffs friend (not Plaintiff). It is also necessary for the reader to infer that the girls who left the Easy Street Saloon with Gibson were among the four to five women who shared cocaine with him in the back room. If the reader connects the "one binge in Modesto" where Mel not only swooped down on "many of the women," but also did drugs with four or five women at the Easy Street Saloon, the reader must still determine whether the "couple of girls in tow" who were escorted out of the Easy Street Saloon were among the girls who surrounded Mel in the back room, and were among the four to five women of all the women in the back room who used cocaine.

The "four to five" women actually said to be engaged in cocaine use with Gibson are unidentified. Plaintiff argues that under the group libel bar exception, four of five persons is a small enough group to overcome the bar. This is true if Plaintiff is an easily identifiable member of the group. Blatty, a California Supreme Court decision held that a "[i]f the group is small and its members easily ascertainable, [the] plainiff[] may succeed," on an individual action based on the defamatory matter being directed at the group. Blatty, 42 Cal.3d at 1046, 232 Cal.Rptr. 542, 728 P.2d 1177 (however, defamatory matter aimed at any group numbering over twenty-five members would not permit an individual to demonstrate that the statements were of and concerning her or him); see also Noral v. Hearst Publications, 40 Cal.App.2d 348, 104 P.2d 860 (Cal.Ct.App. 1940) (libelous statement directed at officials of the Workers' Alliance labor union insufficient where despite allegation that plaintiff was one of three top-paid officials, there where at least 162 officials besides state officers); Barger v. Playboy Enterprises, Inc., 564 F.Supp. 1151 (N.D.Cal. 1983) (group libel rules barred defamation suits); Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.1952) (where group referred to is too large, courts presume no reasonable reader would take the statements as literally applying to each individual member).

The Restatement Second of Torts also addresses small group libel claims: "When a defamatory matter refers to a small group of persons, an individual member may recover if (1) the group or class is so small that the matter can reasonably be understood to refer to the member, or (2) the circumstances of publication reasonably give rise to the conclusion that there is a particular reference to the member." Restatement (Second) of Torts, section 564A. For example if a newspaper publishes a statement that the officers of a corporation have embezzled its funds and there are only four officers, each of the officers can be found to be defamed. Id. at Comment b. The Ninth Circuit in Church of Scientology of California v. Flynn, 744 F.2d 694 (9th Cir.1984) found that the group libel bar did not apply when: "CSC's claim would also fall within a well-established exception to the group libel rule that allows a group member to sue upon a showing that ``the circumstances of a publication reasonably give rise to the conclusion that there is particular reference to the member.'" Id. at 697, n. 5

The entire article attached as Exhibit A to Plaintiffs Complaint also includes the following sentence after the section of the article quoted by Plaintiff in her Complaint:

He was beyond drunk. My nephew told me Mel had been snorting cocaine. The cops knew it. If it had been you or me, we would have ended up in jail.

(Doc. 1, Complaint, Exhibit A)^[4] The court may consider exhibits submitted with the complaint. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 fn. 19 (9th Cir.1989); Isuzu Motors Ltd. v. Consumers Union of U.S., Inc., 12 F.Supp.2d 1035, 1042 (C.D.Cal.1998). Plaintiff has not alleged this statement is attributable to Fred Yow's nephew, (or Plaintiffs cousin). This statement could be read to mean that Fred Yow's nephew personally observed Mel Gibson snorting cocaine.

CONCLUSION

The law requires that defamation be of and concerning the Plaintiff by clear implication. Considering the article as a whole, the title: "Mel Gibson, Shocking Tell-All! 15 Years of Affairs, His Cocaine Frenzy" established the tone for the contents of the article, which identified cocaine use, overconsumption of alcohol and extra-marital affairs by film-celebrity Mel Gibson. The article refers to a number of incidents of drug and alcohol use, including a specific incident on an unidentified night at the Easy Street Saloon in Modesto, California where Plaintiff lives. The article describes events at the Easy Street Saloon where Gibson "swooped down on many of the women," snorted cocaine in a back room surrounded by girls, including four or five women who were around the table with him, where Mel was huddled over a small mound of cocaine on top of a glass-topped desk. Four or five women shared the coke with Gibson. None of the women or girls in the Easy Street Saloon are identified. Plaintiff argues that the timing is not stated.

The article goes on to state that the Easy Street Saloon manager learned what was going on, showed Mel "and company" (not identifying anyone in the "company") the door, and "they escorted him out with a couple of the girls in tow to continue the party elsewhere." There is no identification of the couple of girls in tow who left with Mel. The immediately following paragraph begins "On that same trip to Modesto," the Plaintiffs father told the EQUIRER his daughter [ANGELA YOW] brought Mel home after a wild night. Mel ended up sleeping with her friend, not with ANGELA YOW. Plaintiffs father threatened Mel with violence if Mel slept with Plaintiff. The next paragraph is in quotes, is not directly, but, is inferentially attributed to Plaintiffs father and reports that, "my nephew told me Mel had been snorting cocaine."

From the totality of these words, a reasonable reader could infer that because the binge occurred at a Modesto bar, where cocaine was snorted in a back room by four or five women, resulting in Gibson's being shown to the door and escorted Out of the bar with a couple of "the girls" in tow to continue the party elsewhere, Plaintiff and her friend (two girls) were among those who used cocaine with Gibson, although the word "girls" not women is used to refer to the couple of people who left with Gibson. Although, "the threat of a clearly nonmeritorious defamation action ultimately chills the free exercise of expression;" Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 268, 228 Cal. Rptr. 206, 721 P.2d 87 (1986), it cannot be determined as a matter of law that a reasonable reader giving the ordinary meaning to the words of the article, would not clearly identify Plaintiff as one of the women in the back room who used cocaine with Gibson and then was one of the couple of girls escorted out of the bar with Mel Gibson, who took him home with her friend. The language of the article marginally satisfies the "of and concerning" retirement as to Plaintiffs defamation per se claim. Defendant's Motion to Dismiss is DENIED.

IT IS SO ORDERED.

NOTES

[1] The National Enquirer article of August 21, 2006 story is attached to the Complaint as Exhibit A.

[2] Plaintiff suggests the "of and concerning" requirement is determined from the totality of the article. Because the article specifically names Plaintiff as one of the women who experienced "a wild night" with Mel Gibson, along with her friend, who slept with Mel Gibson, the defamatory statements concerning coke use can reasonably refer to her and are "of and concerning" her.

[3] Paragraph 9 of Plaintiff's Complaint states:

"The following passage of the National Enquirer of August 21, 2006 story contains the false defamatory statements upon which ANGELA YOW bases her claim for defamation":

During one binge at a Modesto, California bar, Mel not only swooped down on many of the women but also did drugs, charges a source.

He was snorting cocaine in a back room surrounded by girls at the Easy Street Saloon back in 1990, according to the source, who barged in on the party. "Mel was huddled over a small mound of cocaine on top of the glass-topped desk".

"He was snorting through a small brass tube".

"There were four or five women around the table with him who were sharing the coke with him."

When the manager learned what was going on, Mel and company were shown the door according to the source.

"They escorted him out with a couple of girls in tow to continue the party elsewhere."

On that same trip to Modesto, FRED YOW told The National Enquirer his daughter brought Mel home after a wild night.

"Mel ended up sleeping with her friend. He wanted to sleep with my daughter Angela, but I told him if he tried to I'd break his face!"

[4] The following is the portion of the National Enquirer Article that includes the statements in Plaintiff's Complaint and the additional sentence following that portion:

During one binge at a Modesto, California bar, Mel not only swooped down on many of the women but also did drugs, charges a source.

He was snorting cocaine in a back room surrounded by girls at the Easy Street Saloon back in 1990, according to the source, who barged in on the party. "Mel was huddled over a small mound of cocaine on top of the glass-topped desk".

"He was snorting through a small brass tube".

"There were four or five women around the table with him who were sharing the coke with him."

When the manager learned what was going on, Mel and company were shown the door according to the source.

"They escorted him out with a couple of girls in tow to continue the party elsewhere."

On that same trip to Modesto, FRED YOW told the National Enquirer his daughter brought Mel home after a wild night. "Mel ended up sleeping with her friend. He wanted to sleep with my daughter Angela, but I told him if he tried to I'd break his face!"

"He was beyond drunk. My nephew told me Mel had been snorting cocaine. The cops knew it. If it had been you or me, we would have ended up in jail."

(Doc. 1, Complaint, Exhibit A)