Mark Furman's 5/95 Libel Complaint Against New Yorker Magazine & Others


TOURTELOT & BUTLER, PLC
ROBERT H. TOURTELOT, Bar No. 36207
LAURIE J. BUTLER, Bar No. 82169
11835 W Olympic Boulevard, Suite 1090
Los Angeles, California 90064-5001
Telephone (310) 575-5600

JOHN A. LLOYD, ESQ. (Ohio Bar No. 0002772)
LLOYD & WEISSENBERGER
119 East Court Street
Cincinnati, Ohio 45202
Telephone (513) 632-5334

Attorneys for Plaintiff
Mark Fuhrman

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES

Case No. SC036387
FILED MAY 08 1995

MARK FUHRMAN,
Plaintiff

vs.

THE NEW YORKER MAGAZINE, INC., a
New York Corporation; JEFFREY
TOOBIN, an individual and DOES 1
through 50, inclusive,
Defendants.

COMPLAINT FOR DAMAGES FOR:

1. LIBEL; 2. FALSE LIGHT INVASION OF PRIVACY;
3. INVASION OF PRIVACY - PUBLICATION OF PRIVATE FACTS;
4. VIOLATION OF CC SECTION 3344;
5. INVASION OF PRIVACY - APPROPRIATION;
6. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS;
7. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

(JURY TRIAL DEMANDED)

STATUS CONFERENCE SET JAN 08 1996
1725 MAIN ST. SANTA MONICA RM. 209 TIME: 10:30

PLAINTIFF, MARK FUHRMAN, ALLEGES:

COMMON ALLEGATIONS

1. At all times herein mentioned, plaintiff MARK FUHRMAN was, and now is, a resident of the County of Los Angeles, State of California (herein referred to as "plaintiff").

2. Plaintiff is informed and believes, and based thereon alleges, that defendant The New Yorker Magazine, Inc. (hereinafter referred to as "NEW YORKER") is, and at all times herein mentioned was, a corporation duly organized and existing under the laws of the state of New York. Defendant and NEW YORKER has continuous and substantial contacts with the State of California, including, but not limited to, the formulation, publication and distribution of a weekly publication entitled The New Yorker (hereinafter referred to as "The New Yorker") throughout the State of California, as well as in all other states of the United States, and throughout the world. In addition, NEW YORKER maintains business offices in Los Angeles County. The July 25, 1994 issue of The New Yorker, as well as prior and subsequent issues of The New Yorker, were sold and distributed in the County of Los Angeles, State of California, as well as in all other states of the United States, and throughout the world.

3. The July 25, 1994 issue of the New Yorker included a three (3) page article, beginning on page 56, which is entitled "ANNALS OF LAW AN INCENDIARY DEFENSE - A surprising and dangerous defense strategy under consideration by O.J. Simpson's legal team, led by Robert Shapiro centers on Detective Mark Fuhrman, the police officer who jumped over Simpson's wall - and found the bloody glove." (Hereinafter, the three (3) page article is designated as the "JULY 25, 1994 STORY").

4. Plaintiff is informed and believes, and on that basis alleges, that at a;; times mentioned herein, defendant JEFFREY TOOBIN (hereinafter designated as "TOOBIN") was employed by defendant NEW YORKER, was a writer and reporter for The New Yorker, and specifically for the JULY 25, 1994 STORY. In addition, plaintiff is informed and believes, and thereon alleges, that at all times mentioned herein, TOOBIN had actual knowledge that The New Yorker was distributed and sold weekly throughout the State of California, including Los Angeles County. Plaintiff is further informed and believes, and thereon alleges, that TOOBIN was employed by defendant NEW YORKER and/or DOES 1 through 50, and/or each of them, and that all acts of TOOBIN were authorized, ratified or for the benefit of defendant NEW YORKER, and/or DOES 1 through 30, and or each of them.

5. Plaintiff is ignorant of the true names and capacities of defendants sued herein as Does 1 through 50, inclusive, and therefore sues these defendants by such fictitious names. Plaintiff will amend the complaint to allege their true names and capacities when ascertained. Plaintiff is informed and believes, and based thereon alleges, that each of the fictitiously named defendants, including all or some of the DOE defendants, is responsible in some manner for the occurrences herein alleged, and that plaintiff's damages as herein alleged were proximately caused by their conduct. Plaintiff is further informed and believes and based thereon alleges that defendant DOES 1-15, inclusive, are yet to be identified leading members of the Simpson defense team who are attorneys, investigators and/or defense team staff members, as well as other unidentified third parties, who met with Jeff Toobin and other defendants affiliated with The New Yorker as hereinafter referenced in subparagraph 15d of this complaint. Plaintiff will seek leave of the court to amend this complaint by inserting the actual names of said DOE defendants at such time as the same have been identified.

6. Plaintiff is informed and believes, and thereon alleges, NEW YORKER, TOOBIN, and or DOES 1 through 50, and/or each of them, jointly or separately, were acting as agents, independent contractors and/or employees of each other, and in doing the things hereinafter alleged, were acting within the course and scope of such agency, and with the permission and consent of such other defendants. NEW YORKER, TOOBIN, and DOES 1 through 50, and or each of them, jointly or individually, acted as alleged herein for financial gain and to damage plaintiff.

7. Plaintiff is informed and believes, and thereon alleges, NEW YORKER, TOOBIN and DOES 1 through 50, and/or each of them, jointly or separately, were responsible in some manner for the formulation, publication and distribution of the JULY 25, 1994 STORY, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference.

8. Plaintiff is further informed and believes, and on that basis alleges, that at all times mentioned herein, and in doing the acts hereinafter set forth, NEW YORKER, TOOBIN, and DOES 1 through 50, inclusive, and or/each of them, were primary participants in intentional and malicious conduct calculated to and actually causing injury to plaintiff in this State, in the remainder of the United States and throughout the world.

9. Plaintiff is informed and believes, and thereon alleges, that NEW YORKER, TOOBIN and/or DOES 1 through 50, inclusive, and/or each of them, jointly or individually, acted with actual malice. Plaintiff is further informed and believes, and theron alleges, that NEW YORKER, TOOBIN and/or DOES 1 through 50, inclusive, and/or each of them, jointly or severally, either ahd actual knowledge that the July 25, 1994 issue of The New Yorker contained the July 25, 1994 STORY which included false statements, was degrading to plaintiff, and invaded plaintiff's right to privacy, or in the alternative, acted in reckless disregard of the truth.

10. Plaintiff is informed and believes, and on that basis alleges, that the dissemination of the July 25, 1994 STORY was extensive, and that the defamatory, false and invasive statements contained therein, have been seen and read by thousands upon thousands of persons in California and elsewhere within the United States and internationally.

11. Plaintiff is further informed and believes, and theron alleges that NEW YORKER, TOOBIN and/or DOES 1 through 50, inclusive, and/or each of them, jointly or separately, had actual knowledge that the publication and dissemination of the JULY 25, 1994 STORY would have injurious impact upon plaintiff worldwide, but particularly in the County of Los Angeles, California where plaintiff works and lives.

12. Plaintiff is informed and believes, and on that basis alleges, that commencing sometime in or about July, 1994, NEW YORKER, TOOBIN and/or DOES 1 through 50, inclusive, and/or each of them, knowingly, maliciously and willfully, conspired and agreed among themselves to tortiously and/or unlawfully injure plaintiff by committing the acts herein alleged in furtherance of such conspiracy and agreement. Plaintiff is further informed and believes, and on that basis alleges, that NEW YORKER, TOOBIN and/or DOES 1 through 50, inclusive, and/or each of them, knowingly and wilfully conspired to formulate, publish and promote the JULY 25, 1994 STORY for, among other things, financial gain, with the knowledge that in doing so it would destroy the reputation and well-being of plaintiff. Plaintiff is also informed and believes, and on that basis alleges, that the aforementioned conspiracy was operated to perform the tortious course of conduct and the illegal acts described hereinafter, which were done in furtherance of the objectives of the conspiracy was operated to performthe tortious course of conduct and the illegal acts described hereinafter, which were done in furtherance of the objectives of the conspiracy, all to plaintiff's damages as alleged herein. Plaintiff is also informed and beleives, and on that basis alleges, that NEW YORKER, TOOBIN and/or DOES 1 through 50, jointly and/or severaly, furthered such conspiracy by ratifying and adopting the acts of each of the other members of the conspiracy. As a legal result of said conspiracy, plaintiff has suffered the damages set forth herein which were actually and proximately caused jointly and severally by each and every defendant.

13. Plaintiff is informed and believes, and thereon alleges, that NEW YORKER, TOOBIN, and/or does 1 through 50, and each of them knew of some, or all of the wrongful acts described hereinafter, and NEW YORKER, TOOBIN, and/or DOES 1 through 50, hereinafter, and NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, nevertheless knowingly assisted in the performance of those wrongful acts, or otherwise participated in furtherance of the conspiracy to plaintiff's damages as alleged herein.

FIRST CAUSE OF ACTION

(For Libel Against all defendants and DOES 1 through 50)

14. Plaintiffs realleges and incorporates herein by this reference paragraphs 1 through 13, inclusive, as if restated in full.

15. On or about July 25, 1994, in all editions of The New Yorker publication, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or severally, formulated, printed, published, republished, and/or circulated in The New Yorker, the JULY 25, 1994 STORY which included the following false statements:

(a) "A surprising and dangerous defense strategy under consideration by O.J. Simpson's legal team, led by RObert Shapiro; centeres on Detective Mark Fuhrman, the police officer who jumped over Simpson's wall-and found the bloody glove."

(b) "Ashe was securing the murder scene, the police brass began to realize the magnitude of the crime on their hands, and the case was assigned to two of the city's highest ranking homicide detectives, Philip Vannatter and Tom Lange."

(c) "If Simpson did not bring the glove from the murder scene to his home, who did? At the preliminary hearing, Robert Shapiro had no answer.

He does now - Mark Fuhrman."

(d) "In a series of conversations last week, leading members of Simpson's defense team floated this new and provocative theory as part of both the public-relations war surrounded the case and their continuing effort to keep the prosecution off balance."

(e) "Those conversation revealed that they plan to portray the detective as a rogue cop who, rather than solving the crime, framed an innocent man."

(f) "Just picture it, ' one of the attorneys told me. "Here's a guy who's one of the cops coming on the scene early in the morning. They have the biggest case of their lives. But an hour later you'r told you'r not in charge of the case. How's that going to make that guy feel? So now he's one of four detectives heading over to O.J.'s house."

(g) "Suppose he's actually found two gloves at the murder scene."

(h) "He transports one of them over to the house and then 'finds' it back in that little alleyway where no one can see him." That would make him "the hero of the case," the attorney said."

(i) "-to being evidence of a police conspiracy."

(j) "If it was Fuhrman who transported the glove, then the bloddy gloves become, for the defense, harmless at worst and exculpatory at best."

(k) "That the Simpson defense team is advancing this theory shows just what kind of hardball it plans to play at the trial."

(l) "Ingenious."

(m) "It means that the defense will attempt to persuade a jury of Los Angeles citizens that one of their own police officers plantd evidence to see an innocent man convicted of murder and, potentially, sent to the gas chamber."

(n) "`This is a bad cop,' one defense lawyer told me."

(o) "One Simpson attorney asserts that, while his client does appear to be the victim of a racist cop, the team will not claim that he was framed unless it truly believes he was."

(p) "Another says that the Fuhrman defense is a done deal."

(q) "Still, it appears that hte case is about to enter a new phase - one with the potential to affect the City of Los Angeles as a whole, and not just one of its most famous residents."

(r) "The projected attack on Fuhrman is just part of a concerted defense strategy to portray Simpson as a victim - of official misconduct and - in a larger sense, of his race."

(s) "The defense will assert, further, that there was additional tampering with evidence, beyond the placing of the second glove at Simpson's house."

16. Each of the above statements contained in the JULY 25, 1994 STORY is and was false, untrue, and defamatory, and the JULY @%, 1995 STORY is libelous on its face. The JULY 25, 1994 STORY wrongfully accuses plaintiff, and was intended to wrongfully accuse plaintiff, of actions and statements that are false, defamatory and damaging. The JULY 25, 1994 STORY clearly exposes plaintiff to hatred, contempt, ridicule and obloquy because it falsely accuses and depicts plaintiff, among other things, as a police officer who acted in a heinous and criminal manner, who intentionally altered a crime scene, and "planted" evidence in an attempt to frame O.J. Simpson.

17. NEW YORKER, TOOBIN and/or DOES 1 through 50, and each of them, jointly or separately, knew the JULY 25, 1994 STORY as it applies to plaintiff to be false, and that the July 25, 1994 STORY was intended by NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, to convey a false or defamatory statement about plaintiff.

18. NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or individually, wrote, printed, published and circulated, and/or caused to be written, printed, published and circulated, and/or caused to be written, printed, published and circulated, the libelous statements concerning plaintiff either with knowledge of the falsity of the statements or with reckless disregard for the truth.

19. The avbove reference statements appearing in the JULY 25, 1994 STORY, and each of them, were so understood by those who read the statements in the JULY 25, 1994 STORY to have the defamatory meaning ascribed to by defendants. NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, intended the July 25, 2994 STORY to be read by purchasers of the July 25, 2994 edition of The New Yorker knowing that each issue of The New Yorker is read by at least hundreds of thousands of people nationally, internationally, and specifically within the County of Los Angeles, California where plaintiff resides and works.

20. At the time the JULY 25, 1994 STORY was publicly distributed throughout the United States and the World, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, were in posession of evidence which would raise serious doubt about the truth of the statements made in the JULY 25, 1994 STORY. In fact, on or about July 15, 1994, TOOBIN spoke by telephone directly with plaintiff, during which telephone conversation plaintiff categorically denied planting any evidence, stating to TOOBIN that any such allegation was outrageous and if The New Yorker printed the same plaintiff would sue both The New Yorker and TOOBIN. Nevertheless, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, without due regard for the truth, falsity, or malicious nature of the statements, formulated, published and disseminated the JULY 25, 1994 STORY for the purpose of, among other things, publicly embarrassing and humiliating plaintiff, and attracting readership to and increasing the sales of The New Yorker. The untruthful statements were therefore made with actual malice, with the knowledge that each such statement was false and was published with reckless disregard of their truthfulness.

21. At the time the JULY 25, 1994 STORY was publicly distributed throughout the United States and the world, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, failed to sufficiently investigate the truth of their statements. Thus, defendants, and each of them, lacked any substantial reason to believe in the truth of the allegations contained within the JULY 25, 1994 STORY. The untruthful statements were therefore made with actual malice, with the knowledge that each such statement was false and the statements were published with reckless disregard of their truthfulness.

22. The defamatory JULY 25, 1994 STORY was written and published with reckless disregard for the truth of the matter, and defendants knew at the time the statements were formulated that they were false and injurious to plaintiff. The JULY 25, 1994 STORY was intended by defendants, and each of them, to directly injure the plaintiff with respect to his reputation, character and business.

23. Defendants, and each of them, were also negligent in publishing the JULY 25, 1994 STORY. With ordinary and reasonable care, defendants would have realized, or could have discovered, that the JULY 25, 1994 STORY was obviously false and grossly libelous, offensive and damaging to plaintiff.

24. As a legal result of the JULY 25, 1994 STORY and the false statements, plaintiff has suffered loss of reputation, shame and mortification, all to his general damage in a sum to be proved at trial, but in a sum not less than Fifty Million Dollars ($50,000,000).

25. The defamatory statements contained in the JULY 25, 1994 STORY were not privileged in any manner. The statements were intended by defendants, and each of them, to directly injure plaintiff with respect to his reputation, character and business.

26. As a legal result of the JULY 25, 1994 STORY, plaintiff has suffered severe emotional distress, all to his general damage, in a sum not less than Fifty Million Dollars ($50,000,000), the exact amount of which to be proven at trial.

27. As a legal result of the intentional and malicious conduct of NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, plaintiff has suffered with respect to his property, business, trade, profession and occupation, all to his special damage in a sum to be determined at time of trial.

28. By engaging in the misconduct alleged above, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or individually, intended to cause plaintiff injury or engaged in that misconduct with the wilful and conscious disregard for the rights of plaintiff. Defendants NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, were aware of the probable dangerous consequences of their misconduct and wilfully and deliberately failed to avoid those consequences, including subjecting plaintiff to cruel and unjust hardship, in conscious disregard of plaintiff's rights. Thus, the award of exemplary and punitive damages is justified.

SECOND CAUSE OF ACTION

(For False Light Invasion of Privacy Again all defendants and DOES 1-50)

29. Plaintiff realleges and incorporates herein by this reference paragraphs 1 through 13 and 50 through 26, inclusive, as if restated in full.

30. On or about July 25, 1994, NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or individually, without plaintiff's consent, invaded plaintiff's right to privacy by writing, printing, publishing and circulating the JULY 25, 1994 STORY which falsely depicts plaintiff as a police officer who behaved in a heinous and criminal manner, who tampered wtih a crime scene, and intentionally planted evidence to implicate O.J. Simpson as the murderer of his ex-wife and her friend.

31. The publication which invaded plaintiff's right to privacy has been marked Exhibit "A" and is attached to this complaint and incorporated herein.

32. The disclosure by defendants, and each of them, jointly or separately, created publicity in the sense of a public disclosure to a large number of people in that The New Yorker is read by hundreds of thousands of people each week throughout the United States, and throughout the world.

33. The publicity created by defendants, and each of them, jointly or separately, placed plaintiff in a false light in the public eye in that the JULY 25, 1994 STORY was fabricated by defendants, and each of them, and publicly conveyed, and was intended to convey, a calculatedly false and inaccurate impression of plaintiff as a criminal, who acted in a heinous and criminal manner, who altered a crime scene, and a police officer who intentionally planted evidence to implicate O.J. Simpson as the murder of Nicole Simpson and Ronald Goldman.

34. The publicity created by the JULY 25, 1994 STORY was highly objectionable to plaintiff, and would be to any person of ordinary sensibilities. The JULY 25, 1994 STORY made plaintiff the object of scorn and ridicule by many residents of Los Angeles County, the State of California, citizens of the United States, and in general, people throughout the world, and was intended to and did directly injure the plaintiff with respect to his right to be left alone, his reputation, character and business.

35. The formulation, publication and public dissemination of the JULY 25, 1994 STORY by NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, were each done with actual malice in that each was done with all or some of defendants' knowledge of the JULY 25, 1994 STORY's falsity, or in reckless disregard of the truth. At all relevant times, all or some of the defendants were aware, or should have been aware, of facts contrary to the defendants' malicious allegations.

36. The publicity created by defendants, and each of them, was done with malice in that it was made either with knowledge of the falsity of the statements or in reckless disregard of the truth. The statements describing plaintiff's actions, character and intentions were calculated falsehoods.

37. Defendants, and each of them, were also negligent in publishing the JULY 25, 1994 STORY. With ordinary and reasonable care, defendants would have realized, or could have discovered, that the JULY 25, 1994 STORY was obviously false and grossly libelous, offensive and damaging to plaintiff.

38. As a legal result of the JULY 25, 1994 STORY, plaintiff has suffered loss of reputation, shame and mortification, all to his general damages in a sum not determined at this time by in excess of Fifty Million Dollars ($50,000,000). Plaintiff requests that the precise amount of such damages be determined by the trier of fact.

39. As a further legal result of the above-described false and reckless statements, plaintiff has suffered severe emotional distress, all to his general damage, in a sum not determined at this time but in excess of Fifty Million Dollars ($50,000,000).

40. As a further legal result of the above-mentioned disclosure, plaintiff has suffered injury in his business all to his special damage in an amount to be proven at trial.

41. In making the disclosure described above, defendants, and each of them are guilty of oppression, fraud or malice in that defendants made the disclosure with a willful disregard of plaintiff's rights. Defendants' acts in formulating, publishing and disseminating the JULY 25, 1994 STORY in The New Yorker's July 25, 1994 issue, were done with the knowledge by defendants that such acts would cause plaintiff to suffer great humiliation, mental anguish and injury. Defendants' acts were therefore willful, wanton, intentional and actually malicious and oppressive, thereby justifying the award of exemplary and punitive damages according to proof at trial.

THIRD CAUSE OF ACTION

(For Invasion of Privacy - Publication of Private Facts Against all defendants and DOES 1-50)

42. Plaintiff realleges paragraphs 1 through 13, 15 through 26, and 30 through 37 above, and incorporates them herein by reference.

43. In or about July 25, 1994, defendants and each of them, without plaintiff's consent, unreasonably invaded plaintiff's solitude and private affairs by publishing in the July 25, 1994 edition of The New Yorker, the JULY 25, 1994 STORY which includes alleged quotations from plaintiff's personal files and medical records.

44. As previously alleged, the defendants' publication of the JULY 25, 1994 STORY was publicly disseminated in the State of California, the United States and internationally.

45. The facts disclosed about plaintiff, were private facts that plaintiff desired and was entitled to keep private. The facts disclosed about plaintiff were not newsworthy and were discovered after an illegal entry into private area.

46. The disclosure by defendants of the above facts were offensive and objectionable to plaintiff and to a reasonable person of ordinary sensibilities in that at the time the defendants discovered the disclosed facts.

47. In order to obtain the above-described private facts, defendants, and each of them with actual malice, unlawfully obtained materials regarding plaintiff.

48. As a proximate result of the above-described publication, plaintiff has suffered loss of his reputation, shame and mortification, all to his general damage in a sum not less than Fifty Million Dollars ($50,000,000). Plaintiff requests that the precise amount of such damages by determined by the trier of fact.

49. Defendants and each of them knew that the formulation, publication and public dissemination of the aforedescribed statements contained in the JULY 25, 1994 STORY would be grossly offensive to plaintiff.

50. As a further legal result of the above-described false and reckless statements, plaintiff has suffered severe emotional distress, all to his general damage, in a sum not determined at this time but in excess of Fifty Million Dollars ($50,000,000).

51. As a further legal result of the above-mentioned disclosure, Plaintiff has suffered injury in his business all to his special damage in an amount to be proven at trial.

52. In making the disclosure described above, defendants, and each of them are guilty of oppression, fraud or malice in that defendants made the disclosure with a willful disregard of plaintiff's rights. Defendants' acts in formulating, publishing and disseminating the JULY 25, 1994 STORY in The New Yorker's July 25, 1994 issue, were done with the knowledge by defendants that such acts would cause plaintiff to suffer great humiliation, mental anguish and injury. Defendants' acts were therefore willful, wanton, intentional and actually malicious and oppressive, thereby justifying the award of exemplary and punitive damages according to proof at trial.

FOURTH CAUSE OF ACTION

(For Violation of California Civil Code Section 3344 Against all Defendants and DOES 1-50)

53. Plaintiff realleges paragraphs 1 through 13, 15 through 26, and 30 through 37 above, and incorporates them herein by reference.

54. On or about July 25, 1994, defendants, and each of them, knowingly and without plaintiff's prior consent or authorization, intentionally invaded plaintiff's right of privacy by knowingly appropriating and using plaintiff's name and photograph in the JULY 25, 1994 STORY for the purpose of advertising, selling and soliciting purchases of The New Yorker, all without plaintiff's consent.

55. The appropriation was unauthorized and without the prior consent of plaintiff.

56. Plaintiff is informed and believes, and thereon alleges, that there is a direct causal connection between the unauthorized use of plaintiff's name in the JULY 25, 1994 STORY by NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them jointly or separately, and defendants' intention, jointly or separately, to increase sales of the publication at plaintiff's expense and to his detriment. Plaintiff is informed and believes, and thereon alleges, that defendants' appropriation gain including promoting the purchase of The New Yorker's publication by persons throughout the State of California, the United States and the world.

57. NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, conduct in formulating, publishing and disseminating the JULY 25, 1994 STORY involved the appropriation of plaintiff's name and photograph in a manner in which plaintiff is readily identifiable by any person reading the JULY 25, 1994 STORY which uses plaintiff's name, "Detective Mark Fuhrman", as well as his photograph.

58. The purpose of the JULY 25, 1994 STORY was to injure plaintiff and for pecuniary gain and to motivate the purchase of The New Yorker by persons throughout the United States and the world, and to injure plaintiff.

59. NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, published and used plaintiff's name, as described above, maliciously, willfully and wrongfully, with the intent to injure and disgrace him. The conduct, and each of the acts of defendants, constitute a violation of California Civil Code Sec. 3344 which prohibits the use of the name, voice , signature, photograph or likeness of another in advertising, selling or solicitation without prior consent of the party depicted.

60. The use of plaintiff's name and photograph in the JULY 25, 1994 STORY is not protected by Civil Code Sec. 3344 (d). The events reported were false and made with malice, that is with knowledge of the falsity of the statements, or in reckless disregard to the truth.

61. As a legal result of the aforementioned acts of NEW YORKER, TOOBIN, and/or DOES 1 through 50, and each of them, jointly or separately, plaintiff has suffered humiliation, mental anguish, and emotional distress, resulting in general damages in an amount not determined at this time, but in excess of Fifty Million Dollars ($50,000,000.000). Plaintiff requests that the precise amount of such damages be determined by the trier of fact.

62. As a further proximate result of the intentional and malicious conduct of defendants, and each of them, plaintiff's reputation has been severely damaged in that the appropriation of his name and photograph as described above, depicts in a false and damaging manner.

63. Defendants' malicious and intentional use of the plaintiff's name in the JULY 25, 1994 STORY, as described above, was done with the knowledge by defendants that such acts would cause plaintiff to suffer humiliation and mental anguish and injury to his reputation. Defendants' acts were therefore willful, wanton, intentional and actually malicious and oppressive, thereby justifying the award of exemplary and punitive damages, and authorization by Civil Code Sec. 3344. The amount of such sum should be sufficient to punish each defendant for their wrongful conduct and to deter others from engaging in such conduct.

64. As a further result of the aforementioned conduct of defendants, plaintiff is entitled to the profits derived by defendants from the unauthorized use of plaintiff's name, photograph and/or likeness attributable to such use, and to an award of attorneys' fees and costs pursuant to Civil Code Sec. 3344, the exact amount of which is unknown at this time.

FIFTH CAUSE OF ACTION

(For common Law Invasion of Privacy - Appropriation Against All Defendants and DOES 1-50)

65. Plaintiff realleges paragraphs 1 through 15, 15 through 26, 30 through 37, and 43 through 46 above and incorporate them herein by reference.

66. On or abut July 25, 1994, defendants, jointly or separately, without plaintiffs consent, invaded plaintiff's right to privacy by knowingly appropriating and using plaintiff's name and photograph in the JULY 25, 1994 STORY.

67. The JULY 25, 1994 STORY which is the basis of the invasion of privacy is marked Exhibit "A" and attached hereto and incorporated herein by this reference.

68. The appropriation was unauthorized and without plaintiff's consent.

69. Defendant's conduct involved the appropriation of plaintiff's name and photograph in the JULY 25, 1994 STORY, without his consent, and constitutes a violation of plaintiff's California Common Law Right to Privacy. The appropriation was unauthorized and for defendants' advantage, pecuniary gain and profit.

70. As a legal result of defendants aforementioned acts, and each of them, plaintiff has suffered humiliation, mental anguish, and emotional distress. Plaintiff has hereby suffered substantial general damages in an amount not determined at this time. Plaintiff alleges such damages to be in an amount not less than Fifty Million Dollars ($50,000,000.000) and requests that the precise amount of such damages be determined the trier of fact. In addition, plaintiff is entitled to the profits derived by defendants from the unauthorized use of plaintiff's name and photograph attributable to such use.

71. As a further legal result of the conduct of defendants, and each of them, plaintiff's reputation had been severely damaged in that the JULY 25, 1994 STORY depicts plaintiff in a false and damaging fashion.

72. Defendants' acts in formulation, publishing and dissemination the JULY 25, 1994 STORY in The New Yorker's July 25, 1994 issue, were done with the knowledge of defendants that such acts would cause plaintiff to suffer great humiliation, mental anguish and injury. Defendants' acts were therefore willful, wanton, intentional and actually malicious and oppressive, thereby justifying the award of exemplary and punitive damages.

SIXTH CAUSE OF ACTION

(For Intentional Infliction of Emotional Distress Against All Defendants and DOES 1-50)

73. Plaintiff realleges paragraphs 1 through 13, 15 through 26, 30 through 37, 43 through 49, and 54 through 60 above, and incorporates them herein by reference.

74. Defendants' conduct in writing, printing, publishing and circulating the above-referenced JULY 25, 1994 STORY was intentional and malicious and done for the purpose of causing plaintiff to suffer humiliation and mental anguish. Defendants' conduct in confirming and ratifying these acts was done with knowledge that plaintiff would suffer emotional distress and was done with a wanton and reckless disregard of the consequences to the Plaintiff.

75. The JULY 25, 1994 STORY clearly exposes plaintiff to hatred, contempt, ridicule and obloquy because it falsely depicts plaintiff as a police officer who behaved in a heinous and criminal manner, who intentionally altered a crime scene, and who "planted" evidence in an attempt to frame O.J. Simpson.

76. As a direct and proximate result of the defendants' scandalous and outrageous acts, plaintiff has suffered humiliation, mental anguish and emotional distress, all to plaintiff's damage in an amount not less that Fifty Million Dollars (5000,000,000.000), the precise amount of which will be proven at the time of trial.

77. Defendants' acts in formulating, publishing and disseminating the JULY 25, 1994 STORY in The New Yorker's July 25, 1994 issue, were done with the knowledge by defendants that such acts would cause plaintiff to suffer great humiliation, mental anguish and injury. Defendants' acts were therefore willful, wanton, intentionally and actually malicious and oppressive, thereby justifying the award of exemplary and punitive damages.

SEVENTH CAUSE OF ACTION

(For Negligent Infliction of Emotion Distress Against all Defendants and DOES 1-50)

78. Plaintiff realleges and incorporates herein by this reference paragraphs 1 through 13, 15 through 26, 30 through 37, 43 through 49, 54 through 60, and 74 and 75 above, and incorporates them herein by reference.

79. Plaintiff was owed a duty by each and every defendant to use reasonable and ordinary care in writing, printing, publishing and circulating go the above-referenced JULY 24, 1994 STORY.

80. Defendants, and each of them, breached their duty of care owed to plaintiff by writing, printing, publishing and circulating, or causing to be written, printed, published and circulated the false JULY 25, 1994 STORY referred to above. Defendants and each of them, jointly or separately, knew, or should have known, that their failure to exercise due care in the performance of writing, printing, publishing and circulating, or causing to be written, printed, published and circulated the false and scandalous JULY 25, 1994 STORY referred to above would cause plaintiff severe emotional distress.

81. Defendants, and each of them, by permitting the above referenced JULY 25, 1994 STORY to be written, printed, published and circulated, breached their duty of care owed to plaintiff.

82. As a direct and proximate result of the defendants breach of duty owed to plaintiff, plaintiff has suffered severe emotional distress and mental suffering, all to his general damage in a sum not less than Fifty Million Dollars ($50,000,000.000), the precise amount of which is to be proven at the time of trial.

WHEREFORE, Plaintiff prays for judgment against defendants, and each of them, as follows:

FIRST CAUSE OF ACTION

1. For general damages according to proof but in excess of Fifty Million Dollars ($50,000,000.00);

2. For special damages in an amount to be determined at trial and for interest thereon at the legal interest rate;

3. For punitive and exemplary damages in an amount to be determined at trial;

4. For costs of suit herein incurred; and

5. For such other and further relief as the court may deem just and proper.

SECOND CAUSE OF ACTION

1. For general damages according to proof but in excess of Fifty Million Dollars ($50,000,000.00);

2. For special damages in an amount to be determined at trial and for interest thereon at the legal interest rate;

3. For punitive and exemplary damages in an amount to be determined at trial;

4. For costs of suit herein incurred; and

5. For such other and further relief as the court may deem just and proper.

THIRD CAUSE OF ACTION

1. For general damages an amount according to proof but in excess of Fifty Million Dollars ($50,000,000.00);

2. For special damages in an amount to be determined at trial and for interest heron at the legal interest rate;

3. For punitive and exemplary damages in an amount to be determined at trial;

4. For costs of suit herein incurred; and

5. For such other and further relief as the court may deem just and proper.

FOURTH CAUSE OF ACTION

1. For general damages in an amount according to proof but in excess of Fifty Million Dollars ($50,000,000.00);

2. For special damages in an amount to be determined at trial and for interest thereon at the legal interest rate;

3. For punitive and exemplary damages in an amount to be determined at trial;

4. For the profits derived by defendants from the unauthorized use of plaintiff's name, photograph and likeness;

5. For attorneys fees and costs of suit incurred herein;

6. For costs of suit herein incurred; and

7. For such other and further relief as the court may deem just and proper.

FIFTH CAUSE OF ACTION

1. For general damages in an amount according to proof but in excess of Fifty Million Dollars ($50,000,000.00);

2. For special damages in an amount to be determined at trial and for interest thereon at the legal interest rate;

3. For punitive and exemplary damages in an amount to be determined at trial;

4. For the profits derived by defendants from the unauthorized use of plaintiff's name, photograph and likeness;

5. For attorneys fees and costs of suit incurred herein;

6. For costs of suit herein incurred; and

7. For such other and further relief as the court may deem just and proper.

SIXTH CAUSE OF ACTION

1. For general damages in an amount according to proof by in excess of Fifty Million Dollars ($50,000,000.00);

2. For punitive and exemplary damages in an amount to be determined at trial;

3. For costs of suit herein incurred; and

4. For such other and further relief as the court may deem just and proper.

SEVENTH CAUSE OF ACTION

1. For general damages in an amount according to proof in excess of Fifty Million Dollars ($50,000,000.00);

2. For punitive and exemplary damages in an amount to be determined at trial;

3. For Costs of suit herein incurred; and

4. For such other and further relief as the court may deem just and proper.

Dated: May 8, 1995

TOURTELOT & BUTLER
Robert H. Tourtelot
Laure J. Butler
By Robert H. Tourtelot
Attorneys for plaintiff
MARK FUHRMAN

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