Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. BC309312, Jon M. Mayeda, Judge. Affirmed.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup and Bartley L. Becker; Law Offices of Daniel B. Spitzer and Daniel B. Spitzer for Defendant and Appellant.
Resch Polster Alpert & Berger, Michael Baum and Sandra Khalili for Plaintiff and Respondent.
OPINION
WOODS, J.
SUMMARY
This is an appeal from an order denying a special motion to strike the plaintiff’s complaint pursuant to Code of Civil Procedure section 425.16. We affirm.
All undesignated references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL SYNOPSIS
According to the complaint, Andrew Luster committed multiple sexual assaults on Lynn Doe aka Shawna Doe after rendering her unconscious through his administration of gamma hydroxyl butyrate (GHB), also known as the “date rape drug.” He videotaped his repeated assaults accompanied by his own commentary.
He labeled the tape “Shawna GHBing.”
After Luster’s arrest and during his criminal trial, the Ventura County Superior Court (Hon. James Cloninger) issued a protective order sealing these videotapes and restricting them from public viewing, finding no one other than the prosecution and defense team had any legitimate need to see them. By the terms of the protective order, the videotapes were in the custody and possession of Luster’s criminal defense attorneys (Roger Jon Diamond and Kiana Sloan-Hillier). Diamond and Hillier placed the videotapes in an anteroom at the Ventura County Superior Court where they met with Luster and maintained other defense evidence.
Thereafter, during a trial recess, Luster (who had been released from custody after posting a $1 million bail bond) fled the jurisdiction. Before fleeing, in violation of the protective order, Luster accessed and obtained possession of the videotapes. His mother (Elizabeth Luster) had notice of the protective order and its contents. Despite her knowledge of the protective order, Elizabeth Luster obtained the videotapes, viewed them and provided them to CBS and its series 48 Hours for viewing and copying.
CBS and its various named employees viewed, edited and broadcast edited versions of the videotapes on national prime time television on February 19, 2003.
Doe filed a complaint against Elizabeth Luster, CBS and several of its employees. As to Luster, Doe asserted causes of action for intentional infliction of emotional distress, invasion of privacy and negligence. She alleged that Luster’s conduct in improperly accessing, removing, viewing and providing to CBS and its employees the videotapes of her son’s assault on her—despite knowledge of the explicit sexual nature of the videotapes as well as the protective order—was extreme, outrageous, malicious and intentional with the purpose of causing or in reckless disregard for the probability of causing Doe humiliation, anguish and emotional and physical distress.
CBS and its employees are not parties to this appeal.
Further, given the explicit sexual nature of the videotapes made without Doe’s knowledge or consent and in light of the protective order, Doe had a legally protected privacy right in the videotapes and their subject matter and had a reasonable expectation that the privacy of the videotapes would be maintained so they would not be provided to, viewed by or used for any purpose by third parties. Luster violated Doe’s right of privacy by improperly accessing, removing and viewing the tapes by allowing them to come into the possession of third parties, providing and disclosing the videotapes to CBS and its various agents and employees and allowing them to make copies of the tapes. Luster’s invasion and intrusion in Doe’s privacy was offensive and objectionable to Doe and to a reasonable person in that the tapes contained sexually explicit footage of the assault on Doe and did not constitute a legitimate public concern.
To the extent Luster claims she did not knowingly provide the videotapes to CBS and 48 Hours, having knowledge of the protective order and having allegedly found the videotapes at her son’s residence, Luster had a duty of care to protect the videotapes and prevent anyone from obtaining possession of them but breached this duty.
Luster filed a motion to strike Doe’s complaint, arguing that all causes of action against Luster arose from acts in furtherance of her right of free speech and that Doe could not establish a probability of success as to these causes of action. In support of the motion, Luster submitted her own declaration stating as follows: During her son’s criminal trial, representatives of CBS reporting on the proceedings told her they were interested in obtaining information about Andrew Luster to “humanize” him. When her son “left” before the trial was over, the police broke the front door of his home and left a mess from their search. There was no one else to take care of his belongings and the home was about to be foreclosed upon.
Luster gave permission to 48 Hours producers to be present at her son’s house to film the packing process for their news report. While there, CBS asked for permission to borrow a box of videotapes among the items being removed from the house. She “granted that request and authorized representatives of 48 Hours to borrow and copy the box of videotapes, provided that the tapes were returned promptly.” At the time, she “did not know the videotapes contained any material that was restricted in any way by any court order. [She] assumed the videotapes in the box were ordinary home videos filmed by or featuring [her] son, such as scenes of surfing, fishing and other outdoor sports or family gatherings at or near [her] son’s house.” She never discussed with anyone from 48 Hours the possibility that any of the tapes were the subject of a court order. She “had no knowledge of the specific content of any court orders concerning evidence at [her] son’s trial.” She was not present when CBS discovered the tapes and took possession of them. She had “never viewed any videotapes of [her] son engaged in any sexual contact with the plaintiff, Lynn Doe, as she alleges in her complaint and [had] never shown any such videotapes to anyone.”
Doe opposed the motion supported by extensive evidence, including the criminal court’s sealing order, her own declaration and that of another of Andrew Luster’s victims (Tonja Doe), declarations from the prosecutor (Maeve Fox) and one of Andrew Luster’s criminal defense attorneys (Roger Diamond), various other documents and transcripts from the criminal action, a photograph of the videotape labeled “Shawna GHBing,” Elizabeth Luster’s prior deposition testimony and deposition testimony from various CBS employees (Marc Goldbaum, Sara Rodriguez, Katie Boyle, Nancy Kramer and Abra Potkin). Luster filed her reply brief supported by another declaration of her own as well as one from her son.
After hearing argument and taking the matter under submission, the trial court denied Luster’s motion. She appeals.
DISCUSSION
Subdivision (b)(1) of section 425.16 provides as follows: “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 plaintiff will prevail on the claim.”
Subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
“‘Review of an order granting or denying a motion to strike under section 425.16 is de novo. [Citation.] We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 (Flatley).)
Section 425.16 requires the court to engage in a two-step process: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Accordingly, we must first address the question whether this action arises from Luster’s activity in furtherance of free speech or petitioning rights. (Ibid.)
As we stated in Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305, “The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the inquiry as to whether the plaintiff has established a probability of success would be superfluous.” Only in the “narrow circumstance” in which the defendant “concedes, or the evidence conclusively establishes,” that the defendant’s assertedly protected conduct was illegal as a matter of law is the defendant precluded from using section 425.16 to strike the plaintiff’s action. (Flatley, supra, 39 Cal.4th at pp. 316, 320.)
“If, however, a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, 39 Cal.4th at p. 316; see also Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 460, citation omitted [Where “the legality of [a defendant’s] exercise of a constitutionally protected right [is] in dispute in the action, the threshold element in a section 425.16 inquiry has been established”].) Accordingly, notwithstanding Doe’s evidence undermining the factual assertions contained in Luster’s declaration, to the extent this declaration supports her claim that she was acting in furtherance of her free speech rights because she believed she was turning over videotapes of her son fishing and surfing to “humanize” him in CBS’s coverage, we accept Luster’s claim that she has met her initial burden on this threshold issue. (See Taus v. Loftus (2007) 40 Cal.4th 683, 712 [in evaluating whether defendant has made threshold showing required under section 425.16 trial court looks to defendant’s “general course of conduct from which plaintiff’s cause of action arose”].)
As our Supreme Court noted in Flatley, supra, 39 Cal.4th at page 319, initial emphasis added, citations omitted, “any ‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff’s [secondary] burden to provide a prima facie showing of the merits of the plaintiff’s case.’” “[W]e emphasize that the question of whether the defendant’s underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s secondary prong showing of probability of prevailing.” (Id. at p. 320.)
According to Luster, the sole issue on appeal is this: “Is an individual who provides information and evidence to the news media concerning a pending criminal prosecution protected from liability for invasion of privacy and from other tort liability under state law by the First Amendment to the Constitution of the United States and by the anti-SLAPP statute?” Without discussing or even citing to any particular evidence other than her own two-page declaration filed in support of the motion to strike, Luster asserts “the federal courts, as indicated below, have held that a news source is immune from state tort liability, because the First Amendment extinguishes all tort claims that might otherwise exist under state law, including invasion of privacy. . . . Both prongs of the anti-SLAPP law are satisfied.”
Contrary to Luster’s assertion, no such blanket rule applies in this case. The United States Supreme Court emphasized in Bartnicki v. Vopper (2001) 532 U.S. 514, 529, “this Court’s repeated refusal to answer categorically whether truthful publication may ever by punished consistent with the First Amendment. Rather, ‘our cases have carefully eschewed reaching this ultimate question, mindful that the future may bring scenarios which prudence counsels our not resolving anticipatorily. . . . We continue to believe that the sensitivity and significance of the interests presented in clashes between [the] First Amendment and privacy rights counsel relying on limited principles that sweep no more broadly than the appropriate context of the instant case.’” (Id., citing Florida Star v. B.J.F. (1989) 491 U.S. 524, 532-533.)
Bartnicki, supra, 532 U.S. 514, involved the repeated intentional disclosure of an illegally intercepted cellular telephone conversation between the president of a local teachers’ union and the union’s chief negotiator during contentious collective bargaining negotiations with the school board that had received substantial media attention. At one point in the intercepted communication, the union president stated: “If they’re not gonna move for three percent, we’re gonna have to go to their, their homes . . . . To blow off their front porches, we’ll have to do some work on some of those guys. (PAUSES). Really, uh, really and truthfully because this is, you know, this is bad news. (UNDECIPHERABLE.)” (Id. at pp. 518-519.) An unknown person dropped a tape of this conversation in the mailbox of a man who then turned it over to a radio station which played the tape on its public affairs talk show. The union president and negotiator sued the man who had turned over the tape as well as the radio station for violations federal and state wiretapping statutes.
The court accepted the following facts as true: the interception was unlawful and the defendants, at a minimum had reason to know that it was unlawful; the defendants had no part in the illegal interception and never learned the identity of the person(s) who had made the interception; they had legally obtained access to the information though someone else had unlawfully intercepted it; the subject matter of the conversation was a matter of public concern. (Bartnicki, supra, 532 U.S. at p. 524-525.) The court specifically stated: “The constitutional question before us concerns the validity of the statutes as applied to the specific facts of these cases.” (Id. at p. 524, emphasis added.)
In balancing the competing interests, the Bartnicki court acknowledged that “some intrusions on privacy are more offensive than others,” but stated “the outcome of these cases does not turn on whether [the federal wiretapping statute] may be enforced with respect to most violations . . . without offending the First Amendment. The enforcement of that provision in these cases, however, implicates the core purposes of the First Amendment because it imposes sanctions on the publication of truthful information of public concern.” (Bartnicki, supra, 532 U.S. at pp. 533-534, emphasis added.) The defendants were “unquestionably” engaged in a debate about a matter of public concern—the proper level of teacher compensation. (Id. at p. 535.) “In these cases, privacy concerns give way when balanced against the interest in publishing matters of public importance.” (Id. at p. 534, emphasis added.) “One of the costs associated with participation in public affairs is an attendant loss of privacy.” (Id. at p. 534.) Therefore, in Bartnicki, the court concluded that “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” (Id. at p. 535.)
Bartnicki does not support Luster’s claim of absolute immunity from all tort liability given the facts of this case. The privacy interest Doe asserts here in her unconscious, naked body captured by Luster’s son on videotape without Doe’s consent as he repeatedly raped her bears no resemblance whatsoever to the union representatives’ mutual interest in keeping their threatening communications relating to the public debate over teachers’ salaries private.
In its ten-page sealing order, the criminal court stated: “The privacy interests must certainly prevail in this case. The question is not close.”
We similarly reject Luster’s contention that in Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, the “California Supreme Court has specifically held that the First Amendment extinguishes any cause of action for invasion of privacy that might otherwise exist under state law, where the conduct of the defendant is protected by the First Amendment.” This too is simply untrue. As Luster acknowledges, the Gates court determined that “an invasion of privacy claim based on allegations of harm caused by a media defendant’s publication of facts obtained from public official records of a criminal proceeding is barred by the First Amendment . . . .” (Gates, supra, 34 Cal.4th at p. 696, italics added, citations omitted.)
The First Amendment issue presented in Gates, like the question before the United States Supreme Court in Bartnicki, involved liability for publication of truthful information illegally obtained by a third party, while Doe’s tort claims in this case focus on Luster’s impermissible intrusion into private matters by accessing and disseminating the “Shawna GHBing” tape. “To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 232; accord, Taus v. Loftus, supra, 40 Cal.4th at p. 725 [emphasizing unwanted access to confidential data source as basis for privacy tort based on intrusion].) Inasmuch as the facts here involve a videotape specifically subject to a sealing order in the criminal action and Doe has presented evidence of the efforts taken to limit the viewing of (an edited version of) the subject videotape to the jury, the court and attorneys in the criminal case, Luster’s citation to Gates and similar authorities is unavailing.
In her respondent’s brief, Doe notes “[t]he intrusion tort alleged against [Luster] is for Invasion of Privacy, i.e., intrusion into private affairs. Any arguments [directed] to a cause of action for disclosure of private facts is [sic] simply wrong and should be disregarded by the Court.”
Luster’s representation that “there is no claim that the defendants disclosed any information or evidence that was not presented in court” ignores the record. Her further contention that even if she did so, the information would still be protected by the First Amendment under Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97 and Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308 is equally false inasmuch as in both cases, there was no issue of privacy since precisely the subject information had already been made public. (Smith, supra, 443 U.S. at 105 [“no issue here of privacy” inasmuch as the subject information—the name of a juvenile offender-- had already been made public]; Oklahoma Publishing, supra, 430 U.S. at 309 [reporters present in the courtroom heard juvenile’s name in open court and also photographed him].) Because Luster has utterly ignored the conflicting evidence in this regard, we summarily reject her arguments that Doe’s other causes of action fail as a matter of law.
Because Luster was not a party or witness or otherwise a “participant” in her son’s criminal trial, her counsel’s belated assertion disclosure of the “Shawna GHBing” tape to CBS personnel is absolutely protected by the litigation privilege (Civ. Code, § 47, subd. (b)), even if properly before us, is without merit. (Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 243 [“nonparticipants and nonlitigants to judicial proceedings are not protected from liability under the litigation privilege”]; Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1304 [same]; see Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 219 [litigation privilege applies to communications “by litigants or other participants authorized by law”; privilege applies to statements by “participant, i.e., the attorney for a party”].)
As the record reveals, the evidence is in sharp conflict on multiple issues, such as whether Luster knew that the tapes she authorized CBS to take, view, copy and broadcast included the actual rape tape in this case. According to the deposition testimony of CBS employee Abra Potkin, Potkin spoke with Luster and told her that, while filming at the house, a producer (Marc Goldbaum) “had found a box of tapes that he believed were tapes from the case.” Luster asked Potkin what she thought the tapes were. “I told her I thought they could be the tapes from the case and there could be other tapes, and she agreed to let me take them, and I agreed that we would get them back to her as soon as possible or promptly.”
Further, Luster’s deposition testimony was inconsistent with her declaration in support of the motion to strike. For example, she previously claimed CBS had stolen the videotapes from her son’s home without her permission. She also had previously testified that her son had not given her permission to release his belongings. In addition, she said she knew her son had tried unsuccessfully to get a copy of the tape, said she would do anything to help her son and said he told her the complete tape would exonerate him. Her declaration itself conspicuously omits a statement that she did not know about a protective order in the case—only that she did not know its “specific content.”
We note that after Luster had already filed her reply brief and nearly three months after Doe filed her respondent’s brief in this matter, Luster filed a motion to augment the record on appeal to include the entire 11 volume clerk’s transcript filed in the Doe v. CBS Broadcasting, Inc. appeal (No. B183179), which was dismissed after settlement, plus a videotape of the 48 Hours broadcast “Lust, Lies and Videotape.” According to the declaration of Luster’s attorney, the documents had all been filed in the trial court.
With respect to the tape, Luster’s counsel said it was difficult to see how Doe was harmed by its broadcast separate from the dissemination of public information concerning the “alleged date rape.” Counsel noted the tape contained an interview with Doe “although her voice and face are disguised.”
Counsel for Luster indicated that the 11 volumes of clerk’s transcript were necessary because the record did not support Doe’s account of the facts and because Doe’s charge that the tape constituted “child pornography” was “demonstrably false.” In her reply brief, Luster had cited to the CBS record for evidence that Doe had just turned 18 at the time Andrew Luster videotaped himself raping Doe.
Doe opposed the motion, citing the late stage of the request to her prejudice, the failure to specify any particular documents out of 11 volumes of clerk’s transcript and the fact that the issues Luster said she needed to address by this additional record had all been raised in the trial court.
Leaving to one side the issues of Luster’s considerable delay and her blanket reference to an 11-volume clerk’s transcript pertaining to another defendant’s motion, as to the videotape, Luster misses the point that the 48 Hours videotape does not resolve the question of whether the evidence is sufficient so that a jury could reasonably conclude at trial that Doe should prevail on her claims against Luster. Such a reasonable conclusion is feasible given the fact that Doe has alleged and testified to damage arising out of the fact that Luster had turned over the “Shawna GHBing” tape—a tape subject to a sealing order—to CBS, prior to editing and broadcasting the tape, during which multiple CBS employees viewed the tape in its graphic entirety. Accordingly, the 48 Hours tape cannot dispose of Doe’s claims as a matter of law.
Similarly, the appellate record in this case contains the pleadings and evidence filed in connection with Luster’s motion to strike Doe’s complaint—the pleadings and evidence considered by the trial court and the pleadings and evidence properly before us in this appeal. Moreover, even if the record were augmented to include the documents as requested, nothing in CBS’s evidence to which Luster has cited for the first time in her reply brief undermines the conclusion that the record contains evidence from which a reasonable jury could conclude that Doe is entitled to recover on her claims against Luster; that is, nothing in the evidence to which she cites defeats Doe’s claims as a matter of law. (For example, she cites to deposition and declaration testimony presented by CBS in connection with its motion to strike, indicating that it was possible to see the charging tape (the “Shawna GHBing” tape as edited by the prosecution) at the far right side of the courtroom.)
Given that the trial court in the criminal trial had made the tape the subject of a sealing order, and records from the criminal proceedings reflect the positioning of the monitor to preclude public viewing and to limit viewing to counsel, the jury and the trial judge; and declarations from the prosecutor and defense counsel attesting to the extent of efforts in this regard, Luster has demonstrated at best a conflict in the evidence which may not be resolved at this stage of the proceedings. In light of all the evidence limiting any public view of the videotape (and the images of Doe—naked and unconscious as Andrew Luster raped her) and evidence that even if anyone could have seen the monitor to the far right of the courtroom, it was at a severe angle, such evidence of a limited view presents only a question for the jury—not resolution of the issue as a matter of law. (See Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pp. 233-234, fn. 13 [although onlookers were present at scene of an overturned vehicle at the bottom of an embankment, reasonableness of the victims’ expectation of privacy was a question for the jury when what the onlookers were able to see from their vantage point was unclear].) The evidence raises similar questions of fact for the jury to resolve as to Doe’s remaining claims.
At this stage, we have no occasion to resolve these conflicts; an action may not be dismissed under section 425.16 if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant. (Taus v. Loftus, supra, 40 Cal.4th at p. 729.) Given the glaring inconsistencies in and inferences raised by Luster’s own statements, as well as the conflicting evidence on multiple issues, if a jury credited Doe’s evidence, she could prevail on her claims against Luster.
DISPOSITION
The order is affirmed. Doe is entitled to her costs of appeal.
We concur: PERLUSS, P.J., JOHNSON, J.