COUNSEL:

Brian Anthony Rishwain, Johnson and Rishwain LLP, Los Angeles, Rodney Smolla, University of Richmond, T C Williams School of Law, Richmond, VA, for Carolyn Condit, plaintiff.

Bruce Alan Owdom, Dietrich Glasrud Mallek and Aune, Fresno, Adam Lindquist Scoville, Pro Hac Vice, Thomas B Kelley, Pro Hac Vice, Steven D Zansberg, Pro Hac Vice, Faegre & Benson, Denver, CO, Michael B Kahane, Pro Hac Vice, American Media Inc, Law Department, Boca Raton, FL, for National Enquirer Inc, American Media, Inc., defendants.

WANGER, District J.

Carolyn Condit ("Plaintiff") sues National Enquirer, Inc. ("Defendant"), and unnamed Does for libel based on statements published in two issues of Defendant's weekly publication, The National Enquirer, dated August 7 and September 4, 2001. See Doc.1, Complaint, filed February 21, 2002. 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. Defendant moves to dismiss or strike Plaintiff's Complaint under Fed.R. Civ.P. 12(b)(6), or alternatively, for summary judgment and attorney's fees under California Code of Civil Procedure section 425.16 prohibiting Strategic Lawsuits Against Public Participation. See Doc.19, filed April 1, 2002. Plaintiff opposes Defendant's motion. See Doc.28, filed June 17, 2002. Oral argument was heard July 1, 2002.

Plaintiff is a California citizen and the wife of former United States Congressman Gary A. Condit. See Complaint at ¶ 3. Plaintiff's Complaint alleges she is not a public figure, has never given, or granted a request for her to give, an interview to a journalist, and has not voluntarily injected herself into a matter of public concern in an attempt to influence the outcome of a controversy. See id. Defendant's articles, exhibits 1 and 2 to the Complaint, confirm that Plaintiff is a "private" person who has not participated in her husband's public life. Defendant is a corporation with its principal place of business in Boca Raton, Florida. See Complaint at ¶ 4. Defendant disseminates a weekly publication, The National Enquirer (the "Enquirer "). See id.

Some time before July 26, 2001, the Enquirer reported on its website, , that "just days before" the disappearance of Mr. Condit's intern, Chandra Levy, Plaintiff phoned Mr. Condit's Washington, D.C., apartment from the Condits' home in Ceres, California, and verbally attacked Ms. Levy during a five-minute telephone conversation. See Complaint at ¶ 6. On July 26, 2001, the Washington Metro Police Department responded to the Enquirer's report and debunked the reported phone call with the following statement from Chief Terrance W. Gainer: "I don't think there's any truth to that whatsoever." See id. at ¶ 7. The following day, July 27, 2001, Washington Metro Police spokesperson Joe Gentile also dismissed the Enquirer 's report, stating: "I am saying there is no foundation to that report." See id.

Several newspapers, including the USA Today, New York Post, and Washington Times, reported the information that was posted on the Enquirer's website, including that Plaintiff verbally attacked Ms. Levy over the telephone just days before her disappearance. See id. at ¶ 8. Plaintiff alleges that notwithstanding the statements by Washington Metro Police Department personnel, the Enquirer on August 7, 2001, published an article describing the purported angry phone call between Plaintiff and Ms. Levy. See id. at ¶ 9.

Plaintiff's Complaint contains three claims for libel. See Complaint. The first claim alleges Defendant published the following "First Offending Statements" in the August 7, 2001, edition of the Enquirer: 1) the large, bold-faced, all-caps headline on the cover: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; 2) the sub-headlines on the cover: "The furious phone call," and "What wife is hiding"; 3) the story headline in all-caps on page 32: "COPS: CONDIT'S WIFE ATTACKED CHANDRA"; and 4) the first paragraph of the article on page 32: "Gary Condit's bitter wife flew into a rage and attacked Chandra Levy in a furious confrontation just days before the intern's disappearance, The ENQUIRER has learned exclusively." See Complaint at ¶¶ 13-15, Exh. A.

Plaintiff alleges the First Offending Statements are libelous on their face, per se, because they imply Plaintiff committed crimes of assault and battery. See Complaint at ¶ 16. Plaintiff alleges the First Offending Statements are reasonably susceptible of a defamatory meaning because they falsely insinuate or state: a) the police believe, and the true fact is, that Plaintiff physically attacked and/or was physically involved in the disappearance of Ms. Levy; b) Plaintiff is hiding information about Ms. Levy's disappearance; and c) Plaintiff had a telephone call with Ms. Levy "just days before" Ms. Levy's disappearance. See Complaint at ¶¶ 17-18. Plaintiff alleges she has never seen Ms. Levy in person or spoken to her on the telephone, and telephone records show no phone call made "days before" Ms. Levy's disappearance from Plaintiff's home in Ceres, California, to Mr. Condit's apartment in Washington, D.C. See Complaint at ¶ 18.

Plaintiff alleges Defendant was aware the cover and story headlines were misleading but made no attempt to clarify their meaning prior to publication. See Complaint at ¶ 19. Since Defendant's in-house counsel and vice president, Michael Kahane, has performed pre-publication review for another tabloid, the Globe, since 1995, Plaintiff asserts Defendant was subjectively aware the headlines in the First Offending Statements conveyed a defamatory or potentially defamatory meaning in light of Kaelin v. Globe Comm. Corp., 162 F.3d 1036 (9th Cir.1998), which held the following headline reasonably susceptible of a defamatory meaning: "COPS THINK KATO DID IT!" See Complaint at ¶ 19. The Complaint charges Defendant recklessly disregarded its awareness of the defamatory meaning of the First Offending Statements by failing to explore whether a defamatory meaning was communicated. See id. Plaintiff claims Defendant deliberately intended to convey the impression that Plaintiff physically attacked Ms. Levy or that her disappearance was a result of Plaintiff's jealous rage when Defendant had no reason to believe that impression was true. See id.

Plaintiff's second claim alleges Defendant published the "Second Offending Statements" in the August 7, 2001, edition of the Enquirer in the story beginning on page 32: 1) "In a major breakthrough, investigators have uncovered what they say is the 'blowup phone call' between Chandra and Carolyn Condit -- during which the 24-year-old intern told an enraged Carolyn that Gary was dumping her to start a new life and family with Chandra"; 2) "The Justice Department source confirmed: 'Investigators are now sure that Mrs. Condit talked with Chandra Levy in the days before her disappearance"'; and

3) In a bombshell disclosure, a source told the Enquirer: "Investigators got phone records that show a phone call from Condit's home in California to his apartment in Washington that was over five minutes long. ... From their extensive work including interviews with Condit, his wife, and Chandra's family members and friends, investigators now say that Chandra and Carolyn had a heated conversation. When the phone rang, Chandra was in the apartment and saw from the caller ID that it was from Condit's home in California. And she boldly answered it. Chandra and the wife had a heated phone screamfest...."

Plaintiff's third claim alleges Defendant published the "Third Offending Statement" in the September 4, 2001, edition of the Enquirer: "Just days before the intern's disappearance Carolyn flew into a rage at Chandra during a phone call." Complaint at ¶ 34. Plaintiff asserts Defendant recycled the information about the phone call from the August 7, 2001, issue of the Enquirer without further corroboration by additional sources. See id. at ¶ 36. Defendant or its purported source or sources fabricated the "furious phone call" and that any source on the matter was not credible because the story is unsupported by phone records and no such call occurred. See id.

The Complaint charges that Defendant published the First, Second, and Third Offending Statements (collectively, the "Offending Statements") with negligence and constitutional and actual malice with knowledge that they were false or with a reckless disregard for their truth or falsity. See id. at ¶¶ 19, 28, 36. Defendant was aware, at least eleven days before publishing the August 7, 2001, issue and forty days before publishing the September 4, 2001, issue, that the Washington Metro Police Department denied the alleged phone call ever took place. See id. Without attempting to interview Plaintiff, Defendant recklessly ignored the known contradictory statements by Washington Metro Police and published the Offending Statements. See id.

The Complaint asserts Defendant had a "pecuniary motive" to publish headlines and stories reasonably susceptible of a defamatory meaning. See id. Defendant "had a predetermined bias against Mrs. Condit" and broke the story as a "World Exclusive" in an attempt "to gain sole credit as the first to sully Mrs. Condit's reputation and to drag her into the morass." Id. The purported source is twice removed from any original source, but "Defendant purposely avoided the truth by failing to adequately fact-check to confirm the accuracy of the offending statements ... where the implication of the offending statements are serious enough to warrant some type of substantiation." Id. "This was not 'hot news' for which there was an urgent need to publish without actual verification ...." Id.

Plaintiff seeks $10,000,000.00 in general damages. See id. Plaintiff alleges she suffered emotional distress, including loss of reputation, humiliation, powerlessness, frustration, and anger, as well as discredit in the eyes of the public. See Complaint at ¶ 20. Plaintiff seeks punitive damages "in an amount appropriate to punish or set an example of the defendant." Id. at ¶¶ 21, 30, 38. Plaintiff demands an apology and a retraction to be published in the Enquirer. See id. at ¶¶ 22, 31, 39. Plaintiff admitted at oral argument she did not demand a correction from Defendant within twenty days following her knowledge of the publication as specified by California Civil Code section 48a.

A. Motion to Dismiss

A motion to dismiss for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is disfavored: "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-46 (1957); see also Gilligan v. Janow Dev. Corp., 106 F.3d 246, 249 (9th Cir.1997) (issue is not whether plaintiff will ultimately prevail, but whether claimant is entitled to offer evidence to support the claim). In deciding a motion to dismiss, the court accepts as true all material allegations in the complaint and construes them in the light most favorable to the plaintiff. See Oscar v. University Students Co-op Ass'n., 965 F.2d 783, 785 (9th Cir.1992); NL Industries v. Kaplan, 792 F.2d 896, 898 (9th Cir.1986).

The court need not accept as true allegations that contradict facts which may be judicially noticed. See Mullis v. United States Bankruptcy Ct., 828 F.2d 1385, 1388 (9th Cir.1987). For example, matters of public record may be considered, including pleadings, orders, and other papers filed with the court or records of administrative bodies, see Mack v. South Bay Beer Distributors, 798 F.2d 1279, 1282 (9th Cir.1986), while conclusions of law, conclusory allegations, unreasonable inferences, or unwarranted deductions of fact need not be accepted. See Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981); see also Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir.1994) ("[A] document is not 'outside' the complaint if the complaint specifically refers to the document and if its authenticity is not questioned."). Allegations in the complaint may be disregarded if contradicted by facts established by exhibits attached to the complaint. See Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir.1987).

B. Summary Judgment

Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R. Civ.P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir.1998). The evidence must be viewed in a light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210 F.3d 1099, 1102-03 (9th Cir.2000). However, if the nonmoving party has the burden of proof at trial, the moving party must only show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

Once the moving party has met its burden of proof, the nonmoving party must produce evidence from which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir.1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1107 (9th Cir.2000). Instead, the nonmoving party, through affidavits or other admissible evidence, "must set forth specific facts showing that there is a genuine issue for trial." Fed.R. Civ.P 56(e).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.

Evidence submitted in support of, or in opposition to, a motion for summary judgment must be admissible under the standard articulated in 56(e). Properly authenticated documents can be used in a motion for summary judgment if the appropriate foundation is provided by affidavit or declaration. See Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550-51 (9th Cir.1990). Supporting and opposing affidavits must be made on personal knowledge, set forth such facts as would be admissible in evidence, and show that the affiant is competent to testify to the matters stated therein. See Fed.R. Civ.P. 56(e).

"Questions of statutory construction and legislative history present legal questions which are properly resolved by summary judgment." T H Agric. & Nutrition Co. v. Aceto Chem. Co., 884 F .Supp. 357, 359 (E.D.Cal.1995) (citations omitted).

Defendant moves under Rule 12(b)(6) to dismiss or strike Plaintiff's claims, or alternatively under Rule 56 for summary judgment, on the grounds: 1) California's anti-SLAPP suit statute applies because Plaintiff's case is a "meritless First Amendment case designed to chill free exercise" and fails to demonstrate a probability of success on her claims; 2) Plaintiff does not allege special damages and did not seek a correction as required by California Civil Code section 48a; and 3) the Offending Statements are not reasonably susceptible of a defamatory meaning. See Doc.19.

A. California's Anti-SLAPP Suit Statute

In 1992, the California Legislature enacted a provision commonly known as an "anti-SLAPP suit" statute. See Cal. Civ. Proc. § 425.16. Strategic Lawsuits Against Public Participation ("SLAPP suits") [FN 1] are legally meritless suits filed in order "to obtain [a political or] economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff." Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106, 1126 (1999). SLAPP suits may tend to chill the exercise of the constitutional right to free speech by instilling fear of enormous recoveries and legal fees into their targets. Section 425.16 was enacted "to encourage continued participation in matters of public significance," especially by small groups and lone individuals whose "participation should not be chilled through abuse of the judicial process." Cal. Civ. Proc. § 425.16(a). [FN 2]

[FN 1] The acronym, "SLAPP," was coined by Penelope Canan and George W. Pring, professors at the University of Denver. See Canan & Pring, Strategic Lawsuits Against Public Participation, 35 Soc. Probs. 506 (1988).

[FN 2] "The paradigm SLAPP suit is an action filed by a land developer against environmental activists or objecting neighbors of the proposed development. However ... SLAPPs are by no means limited to environmental issues nor are the defendants necessarily local organizations with limited resources. The statute is appropriately applied to litigation involving conduct by a defendant which was directed to obtaining a financial advantage." Ludwig v. Sup.Ct., 37 Cal.App. 4th 8, 14-15 (1995) (citations omitted).

A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiffwill prevail on the claim.

In the Ninth Circuit and California, section 425.16 applies to state law claims advanced in a federal diversity action. See United States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 970-73 (9th Cir.1999) (concluding, after analysis under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), that important substantive state interests are furthered by the anti-SLAPP statute; no identifiable federal interest would be undermined by applying the anti-SLAPP statute in diversity actions; and finding that prohibiting application of the anti-SLAPP statute in federal diversity actions would promote forum-shopping). A special motion to strike under section 425.16 can be based on any defect in the Complaint, including legal deficiencies addressable on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), or a failure to support a stated claim with evidence, analogous to a motion for summary judgment under Fed.R. Civ.P. 56. See Rogers v. Home Shopping Network, Inc., 57 F.Supp.2d 973, 976 (C.D.Cal.1999). [FN 3]

[FN 3] Rogers explains:

§ 425.16 applies in federal court. However, it cannot be used in a manner that conflicts with the Federal Rules. This results in the following outcome: If a defendant makes a special motion to strike based on alleged deficiencies in the plaintiff's complaint, the motion must be treated in the same manner as a motion under Rule 12(b)(6) except that the attorney's fee provision of § 425.16(c) applies. If a defendant makes a special motion to strike based on the plaintiff's alleged failure of proof, the motion must be treated in the same manner as a motion under Rule 56 except that again the attorney's fees provision of § 425.16(c) applies.

Rogers, 57 F.Supp.2d at 983.

A newspaper should not be deemed a "public forum" for purposes of § 425.16. Therefore, National Enquirer can invoke the protections of § 425.16 only if its speech falls within the scope of subsection (e)(4).... California decisions seem clear that the fact that a statement appeared in a newspaper is insufficient to satisfy [the "public interest"] element. It is true that California courts have found the public issue or issue of public interest element to be satisfied by speech on many different subjects. See, e.g., Sipple, 83 Cal.Rptr.2d at 682-85 (whether nationally known campaign consultant regarding women's issues engaged in wife-beating is public issue); Dove Audio, 54 Cal.Rptr.2d at 834 ("whether money designated for charities was being received by those charities" is question of public interest); Beilenson, 44 Cal.App. 4th 944 (speech alleging unethical conduct of public official is of public interest); Matson, 46 Cal.Rptr.2d at 885-86 (speech regarding "qualifications of a declared candidate for public office is a public issue").

[T]he question whether the statements concerned a matter of public interest cannot be determined on the basis of media coverage, notoriety or potential newsworthiness. It would be absurd to suppose that a newspaper can generate a public issue by the mere fact of printing a story, even when it expects lively interest among its readers. If that were the case, a newspaper could bring itself, and others, within the statute by its own decision to cover a controversy even if the public has no interest in it.

California's anti-SLAPP statute applies to the Offending Statements only if they can be characterized as statements made in connection with an issue of public interest for reasons other than that they were made in a widely distributed publication. See, e.g., Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 839-840 (9th Cir.2001) (plaintiff conceded that allegedly defamatory statements regarding safety of products intended for human consumption involved a matter of public concern); Braun v. Chronicle Publishing Co., 52 Cal.App. 4th 1036, (1997) (section 425.16 applies to newspaper reports describing an investigative audit carried out by the State Auditor). Defendant contends reports concerning investigations into possible commission of crimes and missing persons are matters of "public concern" and "general public interest." See Doc.19 at pp.4-5 (citing cases outside the context of section 425.16). Defendant further contends Plaintiff was properly the subject of public interest because she was the wife and family member of a United States Representative. See id. at p.5.

Although section 425.16 is to be construed broadly, see Cal. Civ. Proc. § 425.16(a), it does not appear Defendant is being sued for making statements related to a "public issue" or "issue of public interest" within the meaning and intent of California's anti-SLAPP statute. Cal. Civ. Proc. § 425.16(e)(4). Even assuming arguendo that Plaintiff is a "public figure" for First Amendment purposes, not all speech concerning her necessarily bears on a "public issue" or an "issue of public interest" for purposes of § 425.16(e). See Rogers, 57 F.Supp.2d at 985 n.7. Plaintiff is not a public official. The disappearance of Ms. Levy does not concern the performance of duties by Mr. Condit in his capacity as a public official. The criminal investigation of the disappearance of Ms. Levy is not necessarily a political or community issue in which public opinion and input is inherent and desirable, although it is arguable that there is a law enforcement purpose that underlies efforts to keep the case in the media and before the public to assist in efforts to locate a missing person. This lawsuit concerns disputed claims over defamation, not the type of meritless case brought to obtain a financial or political advantage over or to silence opposition from a defendant, which California's anti-SLAPP statute is designed to discourage. The Complaint appears to be an attempt to vindicate Plaintiff's legally cognizable right in reputation not to be falsely accused of attacking Ms. Levy shortly before her disappearance or of hiding material information about a missing person from the investigating criminal authorities. In the context of the Complaint, Defendant seeks to utilize the anti-SLAPP law to gain immunity from alleged defamation, not to be free of a wrongfully intimidating meritless lawsuit designed to stifle desirable political or public speech.

At this juncture, accepting as true the well-pleaded allegations of the Complaint, Plaintiff could succeed on the merits. Defendant's motion to dismiss or strike, or alternatively, for summary judgment and attorney's fees on the ground California's anti-SLAPP suit statute applies is DENIED.

B. Defendant's Status as a Newspaper under Civil Code Section 48a

Defendant moves to dismiss the Complaint on the ground Plaintiff does not allege special damages and did not seek a retraction as required by California Civil Code section 48a. Plaintiff's Complaint does not assert she served a notice and demand for correction within twenty days of knowledge of the offending publication and admitted at oral argument she did not.

1. The Purpose of Cal. Civ.Code Section 48a

California Civil Code section 48a provides, in relevant part:

In any action for damages for the publication of a libel in a newspaper, or of a slander by radio broadcast, plaintiff shall recover no more than special damages unless a correction be demanded and not be published or broadcast, as hereinafter provided. Plaintiff shall serve upon the publisher, at the place of publication or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. Said notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.

"Special damages" are all damages which plaintiff alleges and proves that [s]he has suffered in respect to h[er] property, business, trade, profession or occupation, including such amounts of money as the plaintiff alleges and proves [s]he has expended as a result of the alleged libel, and no other.

Section 48a extends protection in recognition of the necessity to disseminate news while it is new, even if untrue, but whose falsity there is neither time nor opportunity to ascertain. See Werner v. Southern Cal. Associated Newspapers, 35 Cal.2d 121, 128 (1950). A sheltered news publication must function under such time constraints in its mode of operation that prevent accuracy checks or make it impractical to avoid inadvertent publication errors. See Field Research Corp. v. Sup.Ct., 71 Cal.2d 110, 113-14 (1969).

2. The 48a Inquiry Is One of Law

Whether the Enquirer is a "newspaper," i.e., reports on "breaking" news, providing current coverage of subjects such as politics, sports, or crime and makes reference to time, within the meaning of Cal. Civ. § 48a is an issue of law. See Burnett v. Nat'l Enquirer, Inc., 144 Cal.App.3d 991, 1000 n.4 (1983) (citing Montandon v. Triangle Publications, Inc., 45 Cal.App.3d 938, 953 (1975)). "[T]he protection afforded by the statute is limited to those who engage in the immediate dissemination of news on the ground that the Legislature could reasonably conclude that such enterprises cannot always check their sources for accuracy and their stories for inadvertent publication errors." Burnett, 144 Cal.App.3d at 1004 (citation and alterations omitted); see also In re Cable News Network, 106 F.Supp.2d 1000, 1001 n.2 (N.D.Cal.2000) ("application of § 48a depends not upon the publication's label as a "newspaper" or a "magazine" but rather upon its role (or lack thereof) in disseminating breaking news") (citing Burnett).

3. What is a § 48a "Newspaper"?

Whether a publication "ought to be characterized as a newspaper or not within the contemplation of section 48a [is] a question which must be answered ... in terms which justify an expanded barrier against damages for libel in those instances, and those only, where the constraints of time as a function of the requirements associated with production of the publication dictate the result." Burnett, 144 Cal.App.3d at 1004. While "mindful of the semantic difficulties inherent in the use ... of such words as 'immediate' ('timely') and 'news'," Burnett focused the section 48a inquiry on the timeliness aspect of news dissemination as it functions within the publication's mode of operation rather than other "newsworthiness" aspects of a publication's content such as readership interest and visibility in the media. Burnett, 144 Cal.App.3d at 1004 n.6.

In Burnett, Carol Burnett sued Defendant for libel based on a four-sentence report printed in the March 2, 1976, issue of the Enquirer. See Burnett, 144 Cal.App.3d at 996-97. The California Court of Appeal affirmed the trial court's determination, based on extensive evidence presented at a hearing, that the Enquirer was not a newspaper within the meaning of section 48a. See Burnett, 144 Cal.App.3d at 1000-01, 1005. The evidence showed the Enquirer was denominated a "newspaper" by some entities for various purposes and a "magazine" by others. See Burnett, 144 Cal.App.3d at 999-1000.

On the key aspect of timeliness, the evidence showed the Enquirer 1) did not subscribe to the Associated Press or United Press International news services, but did subscribe to Reuters News Service; 2) did not attribute content to wire services; 3) provided little or no current coverage of subjects such as politics, sports or crime; 4) did not generally make reference to time; 5) did not generate stories day to day as a daily newspaper does; and 6) had a lead time [FN 4] for its stories of one to three weeks. See Burnett, 144 Cal.App.3d at 999-1000. Burnett held the trial court correctly determined from the evidence that the Enquirer 's publication process and business mode did notjustify the preferred status bestowed upon newspapers limited in time and opportunity to ascertain the complete accuracy of all items printed while serving the public interest in the optimal dissemination of news. See Burnett, 144 Cal.App.3d at 1001-02.

[FN 4] Burnett defines "lead time" as "the shortest period of time between completion of an article and the time it is published." See Burnett, 144 Cal.App.3d at 1000 n.3.

Plaintiff rejoins "Defendant has made no meaningful attempt to compare the content of The National Enquirer as it existed in 1976 and the content of today." Doc.28 at p.10:6-7. Plaintiff contends the 2001 Enquirer has few features similar to a true newspaper and does not publish "news while it is new." See id. at p.8:12-15. Plaintiff contends many of the Enquirer's stories concern events which transpired in preceding years, do not contain dates or any indications the content was quickly brought to press, and are regular features such as "All the Buzz," "All the Gossip," and "Planet Tabloid," which consist of editorialized comments and opinions. See id. at pp.8-9. The Enquirer solicits stories from readers for money with phrases such as "Got news for Us? We've Got $500 for You." Id. at p.9.

The content of the Enquirer is relevant only insofar as it shows whether the Enquirer of today serves the public interest by currently disseminating news so as to warrant protection under section 48a. Plaintiff's suggestion that Burnett's findings are claim or issue preclusive on the 48a status of the Enquirer does not follow if the news gathering and publishing activities of Defendant have materially changed. See United States v. Westlands Water Dist., 134 F.Supp.2d 1111, 1133-34 (E.D.Cal.2001) (citing Robi v. Five Platters, 838 F.2d 318, 321-22 (9th Cir.1988)). See also Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1113-18 (9th Cir.1999), and the four factor test of Steen v. John Hancock Life Ins. Co., 106 F.3d 904, 912 (9th Cir.1997). Comparison of the Enquirer of 1976 and the Enquirer of 2001, under the six Burnett factors, reveals:

1) Subscription to Wire Services. The 1976 Enquirer did not subscribe to the Associated Press or United Press International news services, but did subscribe to Reuters News Service. No new evidence is presented regarding 2001 subscriptions to wire services.

2) Attribution of Content to Wire Services. The 1976 Enquirer did not attribute content to wire services. The present record includes seven issues of the Enquirer published in 2001. [FN 5] There is no attribution of content to wire services. See, Doc.30, Exhs. 3-6; Doc.35, Exhs. D-F. There is no evidence of change in the use of wire services.

[FN 5] The seven issues of the Enquirer from 2001 in the record bear the following publication dates: 1) February 27, 2001; 2) May 8, 2001; 3) May 29, 2001; 4) August 7, 2001; 5) August 14, 2001; 6) August 21, 2001; 7) August 28, 2001. See Doc. 30, Exhs. 3-6; Doc .35, Exhs. D-F. The two issues from 1976 in the record bear publication dates of February 17, 1976, and March 2, 1976. See Doc.30, Exhs. 1-2.

3) Current Coverage of Politics, Sports and Crime. The 1976 Enquirer provided little or no current coverage of subjects such as politics, sports or crime. The record includes the two 1976 issues of the Enquirer which formed the basis for the determination in Burnett that the publication was not a section 48a newspaper. See Doc.30, Exhs. 1-2. Each 1976 issue contains between five and ten stories that can reasonably be classified as political coverage. See, e.g., Doc.30, Exh. 1 at pp. 7, 14, 34, 44, 55, 60, 64. Most of these stories do not identify specific dates, nor is it possible to identify exactly how "current" the coverage is. The seven 2001 issues reveal approximately three stories per issue that can reasonably be classified as coverage of politics, sports or crime. Most stories contain only general references to dates and times, but at least some of the criminal stories contain coverage which could be called "current," at least within the past two weeks. See, e.g., Doc.35, Exh. D at pp.32-33 (August 14, 2001, issue of the Enquirer featuring a story on Ms. Levy's disappearance including a time-line through July 27, 2001). Most of the stories in issues from 1976 and 2001 cannot reasonably be classified as "current coverage of politics, sports or crime."

4) References to Time. The 1976 Enquirer stories did not generally make reference to time. Nor do the 2001 Enquirer issues generally make reference to time. See, e.g., Doc.30, Exhs. 3-6; Doc.35, Exhs. D-F. When dates are mentioned, they are frequently more than one week in the past. See, e.g., Doc.35, Exh. D (August 14, 2001, edition, referring to an event as having occurred on July 23).

5) Day-to-Day Generation of Stories. The 1976 Enquirer did not generate stories day to day as a daily newspaper does. The only evidence presented as to the 2001 Enquirer's generation of stories is Defendant's response to Plaintiff's Interrogatory No. 7 (Second), which asks, "Exactly what date did National Enquirer, Inc. first obtain the information that Carolyn Condit had a 'furious phone call' with Chandra Levy?" Defendant responded: "On or about July 21, 2001, but in any event between the dates of July 17 and July 23, 2001, the latter date being the submission deadline date for the August 7, 2001 edition." See Doc.30, Exh. 7. At minimum, according to Defendant, the story which gave rise to the First and Second Offending Statements, one of the "breaking news stories" referred to by Defendant as an example of the Enquirer 's new focus on "current coverage of crime," was generated in three days. The Enquirer is still a weekly publication. Defendant has not submitted evidence that comes close to preponderating that it publishes under time pressure.

6) Lead Time. The 1976 Enquirer had a lead time for its stories of one to three weeks. In a footnote in its Reply Brief, Defendant infers from an answer to Plaintiff's Interrogatory No. 7 (Second) that the "lead time" for the current Enquirer is three days. See Doc.34 at p.4 n.6 (citing Doc.30, Exh. 7).