FREEDOM NEWSPAPERS, INC., et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY, Respondent; B. RICHARD GOULD, as Executor, etc., Real Party in Interest, 4 Cal. 4th 652

Opinion GEORGE, J. Civil Code

section 48a, subdivision 1 (hereafter

section 48a(l)), limits the plaintiff in an “action for damages for the publication of a libel in a newspaper” to the recovery of special damages unless, within 20 days after becoming aware of the alleged libel, the plaintiff “serve[d] upon the publisher, at the place of publication . . . , a written notice specifying the statements claimed to be libelous and demanding that the same be corrected” (italics added), and the publisher failed to correct the error. In this case, the required notice was served on the editor of the newspaper in which the allegedly libelous statements appeared.

For the reasons that follow, we hold that although the notice in the present case was sent to the editor of the newspaper, rather than to the publisher, the allegations in the second amended complaint that the editor had been designated by the publisher to receive such notices, and that the publisher acquired actual knowledge of the notice within the time period specified in

section 48a(l), are sufficient, if proved, to satisfy the requirement of

section 48a(

l) that the notice be served upon the publisher. Facts Calvin Schmidt, a municipal court judge, filed a libel action against Freedom Newspapers, Inc., and related defendants (hereafter defendants). Schmidt’s second amended complaint alleges that the Orange County Register, which is published by Freedom Newspapers, Inc., published articles that stated falsely “that Judge Schmidt rendered favorable decisions in return for sexual favors from prostitutes.” These articles were published on October 9, 1988, December 14, 1988, and March 9, 1989.

On March 13, 1989, Schmidt sent a letter to the editor of the Orange County Register, N. Christian Anderson, demanding a correction of the March 9,1989, article. A copy of the letter was attached to the second amended complaint as exhibit “A.” The second amended complaint alleges that no correction was printed. The second amended complaint further alleges “that although addressed to the editor, Exhibit ‘A’ was known to the publisher of the newspaper at or about the time it was written [and that] the editor of The Register, N.

Christian Anderson, had actual authority by delegation from the publisher, or by a pattern or practice developed over a period of years, to determine on behalf of The Register whether and how to respond to requests for corrections such as Exhibit ‘A’, and to make corrections if he determines to do so.” Schmidt sought “general damages and special damages in an amount to be determined by proof at trial, but at least $200,000.00,” as well as punitive damages.

Defendants moved to strike the prayer for general and punitive damages on the ground, among others, that Schmidt’s demand for correction failed to comply with the requirement of

section 48a(

l) that the notice be served upon the publisher. The superior court denied the motion to strike, and defendants sought a writ of mandate from the Court of Appeal. The Court of Appeal granted the requested relief, ordering that a peremptory writ of mandate issue directing the superior court to vacate its order denying defendants’ motion to strike and to enter a new order granting the motion. We granted Schmidt’s petition for review. Discussion This court previously has interpreted

section 48a. In Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 113 [77 Cal.Rptr. 243, 453 P.2d 747], we held that this statute protects persons “engaged in the news dissemination industry” and not “third parties” whose allegedly defamatory statements were published by the news media. In so holding, we stated that the term “ ‘publisher,’ ” as used in

section 48a(l), “clearly refers to the owner or operator of the newspaper . . . , rather than the originator of the defamatory statements. [Citation.]” (71 Cal.2d at p. 114; see also Pridonoff v. Balokovich (1951) 36 Cal.2d 788, 791 [228 P.2d 6].) We observed: “[I]t is only the publisher . . . who has the power effectively to correct or retract.

When a defamatory statement authored by a participant in a publishing or broadcasting enterprise has been published by a newspaper or broadcasting station, it is largely the authority and reputation of the paper or station that gives the statement its credibility.” (71 Cal.2d at p. 115.) Interpreting the term “publisher” to refer to the owner or operator of the newspaper comports with our mandate to construe statutory language according to “its usual, ordinary import.” (Dyna-Med, Inc. v.

Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387 [241 Cal.Rptr. 67, 743 P.2d 1323].) The term “publisher” customarily is defined as “a person or corporation whose business is the publication of books, periodicals, music, maps, and the like.” (Webster’s New Internat. Dict. (2d ed. 1948) p. 2006.) A newspaper’s editor does not come within this definition. The term “editor” generally is defined as “[o]ne who directs or supervises the policies and contributions of a newspaper.” (Id. at p. 817.) An editor exercises control over the content of a newspaper but does not publish the newspaper.

An editor’s authority is derived from the publisher. In the context of defamation actions, the term “publisher” can be defined as a person or entity that communicates to a third person a defamatory statement about another. As the court explained in Field Research Corp., however, it is clear from a consideration of the statute as a whole that in drafting the portion of

section 48a here at issue, the Legislature did not employ the term “publisher” in this technical, legal sense, but rather according to its common meaning: the owner or operator of a newspaper.

We stated in this regard: “Although the word ‘publication’ in the first sentence of [section 48a(l)] is used in its legal sense to mean the communication of any defamation [footnote omitted], the second sentence provides that the demand for correction shall be served upon the ‘publisher’ or ‘broadcaster’ and clearly refers to the owner or operator of the newspaper or radio station, rather than the originator of the defamatory statements. [Citation.]” (Field Research Corp. v. Superior Court, supra, 71 Cal.2d at p. 114; cf. Gertz v.

Robert Welch, Inc. (1974) 418 U.S. 323, 341 [41 L.Ed.2d 789, 806, 94 S.Ct. 2997]; Wheeler v. Green (1979) 286 Ore. 99 [593 P.2d 777, 791].) It is true that service of the required notice on the editor of a newspaper would go far toward accomplishing the purpose designed to be served by

section 48a(l), namely to bring promptly the alleged libel to the newspaper’s attention to facilitate the newspaper’s “investigative efforts in determining whether the statements in the initial

article contained error and should be corrected.” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 30-31 [81 Cal.Rptr. 360, 459 P.2d 912].) But it is the prerogative of the Legislature to determine the means to be employed in accomplishing a legislative goal, and

section 48a(

l) specifies that the notice is to be served upon the “publisher” of the newspaper. The Legislature may well have phrased

section 48a(

l) in the manner it did because the publisher, rather than a subordinate employee, is most likely to have the greater interest in protecting the newspaper from a libel judgment. In the present case, the second amended complaint alleges that Schmidt sent a letter to the editor of the newspaper in which the offending material appeared, demanding a correction of the allegedly libelous statements.

Schmidt further alleged “that although addressed to the editor, [the notice] was known to the publisher of the newspaper at or about the time it was written ...” and the publisher had delegated to the editor the authority to respond to the notice. For the reasons that follow, we hold that these allegations, if proved, are sufficient to establish that the notice was served upon the publisher within the meaning of

section 48a(l). In Kapellas v. Kofman, supra, 1 Cal.3d 20, 31, we discussed the required contents of a

section 48a(

l) notice, observing: “[L]etters written to request retraction of a statement do not compose formal legal complaints; we cannot expect that they will conform to the niceties of common law pleading. In enacting

section 48a the Legislature intended to afford publishers an opportunity to correct committed errors before subjecting them to liability; it did not intend to build technical barricades to recovery by the individual who had given notice sufficient to advise a reasonable publisher acting in good faith of the claimed error. The crucial issue in evaluating the adequacy of the notice turns on whether the publisher should reasonably have comprehended which statements plaintiff protested and wished corrected. [Citation.]” By parity of reasoning, the requirement of

section 48a(

l) that the plaintiff “serve” the notice upon the publisher was not intended to impose a technical barrier to recovery when the purposes designed to be served by

section 48a are satisfied. Therefore, we hold that the requirements of

section 48a(

l) are satisfied when the demand for correction is (1) served upon the publisher, (2) served upon a person designated by the publisher to receive such notices, or (3) served upon someone employed at the newspaper other than the publisher or the publisher’s designee and the publisher acquires actual knowledge of the request for correction within the time limit set forth in the statute. Such a rule is consistent with both the language of the statute and the policy it was designed to serve. In the present case, Schmidt alleged that, although he addressed the

section 48a(

l) notice to the editor of the newspaper that published the allegedly libelous statements, the notice “was known to the publisher of the newspaper at or about the time it was written. . . .” In addition, Schmidt alleged that the editor “had actual authority by delegation from the publisher, or by a pattern or practice developed over a period of years, to determine . . . whether and how to respond to requests for corrections . . . .” These allegations, if proved, are sufficient to establish service of the demand for correction upon the publisher within the meaning of

section 48a(l). Accordingly, we hold that the superior court properly denied the motion to strike Schmidt’s prayer for general and punitive damages, and that the Court of Appeal erred in ordering the issuance of a peremptory writ of mandate directing the superior court to enter an order granting the motion to strike. The judgment of the Court of Appeal is reversed, and the matter is remanded for farther proceedings consistent with the views expressed in this opinion. Real party in interest, the executor of Schmidt’s estate, shall recover his costs on appeal.

Mosk, J., Panelli, J., Arabian, J., and Baxter, J. concurred. Calvin Schmidt died during the pendency of proceedings before this court. We granted the motion of the executor of Schmidt's estate to be substituted as real party in interest. (Code Civ. Proc., former § 385; Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1133 [277 Cal.Rptr. 354].) It is settled that the cause of action for libel survives Schmidt. (Prob. Code, former § 573, subds. (a), (c); cf. Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 920, fn. 3 [148 Cal.Rptr. 389, 582 P.2d 980]; Urbaniak v.

Newton, supra, 226 Cal.App.3d 1128, 1142.) For this reason, we reject defendants’ argument that the required notice must be sent by registered mail. Defendants rely on Code of Civil Procedure

section 1020, which states, in pertinent part, that “[a]ny notice required by law . . . may be given by sending the same by registered mail. . . .” By its terms, this statute is permissive only. It does not require that a notice which may be served by mail be sent by registered mail. (Code Civ. Proc., § 1012 et seq.) Any suggestion to the contrary in San Leandro Collection Service v. Dunbar (1968) 259 Cal.App.2d Supp. 933, 935 [66 Cal.Rptr. 495], is disapproved.

We recognize that there may be circumstances in which a newspaper is estopped to deny that the notice given is sufficient, but we need not, and do not, address in this case the issue of estoppel, because it is not raised on the facts before us.