SAGAN v. APPLE COMPUTER, INC.
874 F.Supp. 1072 (1994)
United States District Court, C.D. California.
June 27, 1994.
The constitutional defense of privileged opinion is applied before analyzing whether the statement in question is actionable under state law. Ault v. Hustler Magazine, Inc.,860 F.2d 877, 880 (9th Cir.1988). 1. Federal Law
The Supreme Court held in Milkovich v. Lorain Journal Co.,497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990), that Gertz, supra, did not "create a wholesale defamation exemption for anything that might be labeled `opinion.'" Milkovich, 497 U.S. at 18, 110 S.Ct. at 2705. The Court recognized that expressions of opinion may often imply an assertion of objective fact. Id. Thus, the dispositive question in determining whether a statement of opinion can form the basis of a state libel action is "whether a reasonable factfinder could conclude that the statements imply an assertion [of fact]." Id. at 21, 110 S.Ct. at 2707. In the Ninth Circuit, courts analyze the following conditions set forth in Milkovich:
(1) whether the defendant used figurative or hyperbolic language that would negate the impression that he was seriously maintaining an assertion of fact;
(2) whether the general tenor of the communication negated the assertion of fact; and
(3) whether the assertion is susceptible of being proved true or false.
1. Sagan attempts to introduce a newspaper article containing the alleged defamatory statement. (Memorandum in Opposition to Defendant's Motion to Dismiss, Exhibit A.) However, this Court's analysis is limited to the four corners of the complaint. Nevertheless, consideration of the article would not help Sagan's position. Sagan asserts that the article implies facts which are capable of being proven false. If this is true, then Sagan's action lies against the publisher of the article, and not Defendant herein.
2. Although Milkovich limits Ault in other ways, it does not upset this portion of the Ault ruling.
3. This would explain the quotation marks Plaintiff places around the words "code name" in Paragraphs 11 and 12 — i.e., Plaintiff was simply quoting what he had been told.
4. See also Eastwood v. Superior Court,149 Cal.App.3d 409, 416, 198 Cal.Rptr. 342 (1983) (cause of action for common law commercial appropriation of right of publicity rested on appropriation branch of law of privacy).