## Facts

- Dr. Paul Bindrim, a licensed clinical psychologist, conducted “Nude Marathon” group-therapy workshops intended to reduce inhibitions through group nudity.
- Participants signed a written confidentiality agreement barring disclosure of who attended and what transpired, and providing for legal liability for damages upon breach.
- Novelist Gwen Davis Mitchell sought to attend a workshop and, according to Bindrim, assured him she would not write about the workshop; she signed the confidentiality agreement and attended.
- Mitchell later wrote a novel, *Touching*, featuring a nude encounter-therapy group led by “Dr. Simon Herford,” depicted as crude, exploitative, and professionally abusive.
- Although the character’s name, appearance, and professional title differed from Bindrim, multiple acquaintances and former participants testified they identified the fictional therapist as Bindrim based on the workshop’s distinctive features and methods.
- Bindrim sued Mitchell and publisher Doubleday & Co. for libel and sued Mitchell for breach of the workshop confidentiality agreement.
- A jury found for Bindrim on libel against Mitchell and Doubleday and on contract against Mitchell; the trial court conditionally ordered a new trial unless Bindrim accepted reductions, which he accepted while preserving appellate rights.

## Issues

1. Whether a fictional character in a book labeled a “novel” can be defamatory of a real person when readers could reasonably understand the character to be that person.
2. Whether defamation “publication” is satisfied when only a relatively small group of readers familiar with the plaintiff recognize the identification.
3. Whether the evidence supported “actual malice” (knowledge of falsity or reckless disregard) as to the author and the publisher, given the plaintiff’s assumed limited-purpose public-figure status.
4. Whether a publisher may be liable for republication (including later editions) after receiving notice of a plausible defamation claim and potential identification.
5. Whether writing and publishing the novel breached the confidentiality agreement, and what damages were recoverable in light of overlapping tort recovery.

## Decision

- The court affirmed liability for libel, holding the evidence permitted the jury to find that reasonable readers with relevant background would understand the fictional therapist to be Bindrim.
- The court held that labeling the work as a “novel” did not bar a defamation claim where identification and defamatory meaning could reasonably be found.
- The court held that publication is satisfied by communication to at least one person other than the plaintiff; limited recognition among a small group did not defeat the claim.
- Assuming Bindrim was at least a limited-purpose public figure, the court held the record supported actual malice by Mitchell based on her firsthand knowledge of the workshop and her allegedly false, damaging portrayal.
- The court sustained liability as to Doubleday at least for republication after notice (including the paperback), finding evidence of reckless disregard in continuing publication without adequate investigation after being informed of possible defamation and identification.
- The court agreed Mitchell breached the confidentiality agreement but upheld the trial court’s decision to strike the separate contract damages award, leaving defamation damages as the primary monetary recovery.
- The judgment was affirmed as modified consistent with the trial court’s post-verdict reductions and adjustments.

## Legal Principles

- A fictional portrayal may be actionable as libel if a reasonable person, reading the work in context, would understand the character to refer to the plaintiff, even if names and physical traits are changed.
- The “novel” label does not confer immunity from defamation liability; the controlling question is reasonable reader understanding of reference and defamatory content.
- Defamation “publication” is established by communication to a single third party; a small recognizing audience can satisfy the element.
- When actual malice is required, it may be shown by evidence that an author with firsthand knowledge knowingly falsified or recklessly disregarded truth in a portrayal likely to be understood as referring to the plaintiff.
- A publisher may incur defamation liability for continuing distribution or republication after notice of a plausible claim and the risk of identification, where failure to investigate supports reckless disregard.
- A confidentiality contract restricting disclosure of what occurred in a therapeutic setting can be breached by publishing a recognizable depiction of the events and leader, but contract damages may be limited to avoid duplicative recovery where tort damages compensate the same injury.

## Conclusion

The court upheld libel liability arising from a fictionalized depiction of a nude encounter-therapy leader because readers could reasonably identify the plaintiff, limited third-party recognition satisfied publication, and evidence supported actual malice by the author and by the publisher for republication after notice; the author also breached a confidentiality agreement, though separate contract damages were not awarded in addition to defamation recovery.


Bindrim v. Mitchell, 92 Cal. App. 3d 61, 155 Cal. Rptr. 29 (Ct. App. 1979)