Opinion
B122834 (Super. Ct. No. BC176082)
Filed July 2, 1999 Certified for Publication
Appeal from judgments of the Superior Court of Los Angeles County, Irving Feffer, Judge. Reversed and Remanded.
David Alan Cooper, Larry Watts and Jon Haslett for Plaintiffs and Appellants.
Davis, Wright, Tremaine, Alonzo Wickers IV and Kelli L. Sager for Defendant and Respondent QRZ Media, Inc.
Munger, Tolles Olson, Mark B. Helm, and Gregg W. Kettles for Defendants and Respondents MGM/UA Telecommunications, Inc., and Metro-Goldwyn-Mayer, Inc.
There are few events more personal and agonizing than an unexpected telephone call advising a parent of the death of a child, especially when the child died from an overdose of an illegal drug. In this case, to add insult to injury, the plaintiff parents receiving the call did not know that the entire incident, from discovery of the body through the telephone call, was being recorded by a television crew who would publish this tragic event on February 6, 1997, as a segment of the television show "LAPD: Life on the Beat."
This type of intrusion is perhaps the prototypical example of the tort of invasion of privacy: "Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an `invasion of privacy.' It encompasses the unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. [Citation.] It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity. `[A] measure of personal isolation and personal control over the conditions of its abandonment is of the very essence of personal freedom and dignity, is part of what our culture means by these concepts. A man whose home may be entered at the will of another, whose conversations may be overheard at the will of another, whose marital and familial intimacies may be overseen at the will of another, is less of a man, has less human dignity, on that account. He who may intrude upon another at will is the master of the other and, in fact, intrusion is a primary weapon of the tyrant.' [Citation.]" ( Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 230-231 (hereafter, Shulman).)
A trio of recent supreme court cases, two from California and one from the United States Supreme Court, have confirmed the right of privacy from inappropriate media intrusion, as discussed infra. In the instant case, the trial court dismissed the parents' action against the news media pursuant to the provisions of Code of Civil Procedure section 425.16 (hereafter section 425.16), the so-called anti-SLAPP statute. We conclude that the trial court erred in dismissing the parents' claims for invasion of privacy by intrusion and violation of Penal Code section 632 (hereafter section 632).
SLAPP is short for "strategic lawsuits against public participation." ( Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 813.)
THE ANTI-SLAPP STATUTE
We begin with a review of the nature of a SLAPP suit and the response by the Legislature, section 425.16:
"Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as `civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.' [Citation.] The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans. [Citations.] SLAPP's, however, are by no means limited to environmental issues. . . . [Citations.]
"The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. [Citation.] Plaintiffs in these actions typically ask for damages which would be ruinous to the defendants. [Citations.]
"SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.] Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. [Citation.] But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. [Citation.] . . .
"Thus, while SLAPP suits `masquerade as ordinary lawsuits' the conceptual features which reveal them as SLAPP's are that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. [Citation.]" ( Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 815-817.)
The Legislature responded to this type of suit by passing section 425.16 ( Id. at p. 817.) As pertinent, that statute provides:
"(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.
"(b)(1) 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.
"(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
"(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.
"(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
". . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
"(e) 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.
"(f) The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper. The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing.
"(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, on noticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision."
Ruling upon a section 425.16 motion to strike a complaint requires a two-step approach. First, the trial court must determine if the defense has met its burden of showing that the plaintiff's lawsuit arises out of the defendant's constitutionally protected actions. ( Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 819-821.) If the court finds in favor of the defense on that issue, the burden then shifts to the plaintiff to establish, as set forth in subdivision (b)(1) of section 425.16, "a probability that the plaintiff will prevail on the claim." The statute further provides that "[i]n making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) This means a plaintiff must present evidence showing it would establish a prima facie case at trial. ( Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1496, and cases cited therein.) Plaintiff must make this showing with admissible evidence. ( Id. at pp. 1497-1498; Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 830.) In other words, plaintiff must produce evidence which, if presented at trial, would withstand motions for a nonsuit or directed verdict. ( Wilcox v. Superior Court, supra, 27 Cal.App.4th at pp. 823-824, 827-828.) A plaintiff may not rely upon the allegations in its complaint to make the required evidentiary showing. ( Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656.) The allegations in the complaint are relevant only to the extent to which they "frame the issues to be decided." ( Id. at p. 656.)
This procedure does not deny the constitutional right to a jury trial because the court does not weigh the evidence in ruling upon the motion; instead, it simply determines whether a prima facie case has been made which warrants the lawsuit going forward. ( Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 866-867, and cases cited therein.)
If the trial court finds that the plaintiff has failed to establish a probability it would prevail on its claim and strikes the complaint, "[o]n appeal, we independently review the entire record to determine whether [the plaintiff] made a sufficient prima facie showing that it would prevail in light of the applicable law relative to the claim. [Citation.]" ( Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 653.)
We note that this case does not present the typical SLAPP suit as described in Wilcox v. Superior Court, supra, 27 Cal.App.4th at pages 815-817 for which section 425.16 was passed. However, while the parents challenged the application of section 425.16 in the trial court, they have abandoned this particular point on appeal. ( Tiernan v. Trustees of Cal. State University Colleges (1982) 33 Cal.3d 211, 216, fn. 4; Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.)
With regard to the first prong, defendants argue that the facts of this case qualify it for treatment under two subdivisions of section 425.16 First, it is urged that this was an official investigation into a death under questionable circumstances which "plainly qualified as an `official proceeding' under subsection (e)(2).'" Second, it is urged that the program "concerned the consequences of drug abuse and the duties of law enforcement, both of which are `issues of public interest'" which fall within subdivision (e)(4).
With the foregoing in mind, we review the factual and procedural background of this action.
THE FACTS AND THE PROCEEDINGS
The parents of Michael Marich (hereafter plaintiffs) filed suit against three media entities responsible for the television show "LAPD: Life on the Beat"; QRZ Media, Inc.; MGM/UA Telecommunications, Inc.; and Metro-Goldwyn-Mayer, Inc. (collectively defendants). The complaint alleges causes of action for invasion of privacy by intrusion, invasion of privacy by disclosure of private facts, intentional infliction of emotional distress, and illegal eavesdropping and recording of a telephone conversation, a violation of Penal Code sections 631, 632 and 634.
In response, defendants filed demurrers and a motion to strike pursuant to section 425.16 In connection with the motion to strike, the trial court took judicial notice of a videotape copy of the program, which had aired on February 6, 1997, at the request of defendants and over the objection of the plaintiffs.
On appeal, plaintiffs argue that the court erred in basing its decision upon the videotape copy furnished by defendants because it was not properly authenticated. We conclude that the declaration of Cynthia Shapiro, custodian of records for defendant QRZ Media, Inc., properly authenticated the copy of the videotape before the trial court. (Evid. Code, §§ 250, 1400 and 1401, subd. (a); see also Jones v. City of Los Angeles (1993) 20 Cal.App.4th 436, 440-441, fn. 5.) The same videotape has been lodged with us.
Plaintiffs failed to offer any declaration or affidavit, as contemplated by section 425.16, to meet their burden under the second prong of showing a probability that they would prevail. Thus, the only evidence before the trial court was the videotape, which we now review.
The segment of the videotape at issue is entitled "Final Act" and runs slightly more than four minutes. It begins with police cars driving to an apartment building on Franklin Avenue in Hollywood at approximately 5:30 p.m. The viewer is told that the investigation was triggered by a call from the Fire Department responding to a death investigation.
The viewer sees the police arriving at the apartment house and meeting the apartment manager who had earlier discovered the body of the deceased (although the circumstances of that initial discovery are not explained). Accompanied by the manager, the police enter an apartment, apparently followed by the video crew. The scene inside the apartment shows the deceased bent over on the floor in the middle of the apartment. Throughout the segment, the video attempts to obscure the head of the deceased as well as other identifying information in the apartment. The viewer is told that drug paraphernalia is present in the apartment. The manager never identifies the deceased by name. The manager states that the apartment had been very noisy the previous three nights. He also states that another tenant told him that the deceased had admitted he used heroin.
The police conclude from the lividity in the body that the deceased has been dead 12 to 15 hours. The coroner finds puncture wounds on one arm, but indicates that a further examination will be necessary to determine if the death was an accident or suicide.
Based upon a job application found in the apartment, the police conclude that the deceased was an actor, and they speculate that he may have accidentally killed himself while celebrating a success.
The police decide to inform the parents of their son's death. An officer places a telephone call. At no point does he either address the parents by name or identify their son by name. He speaks first to the mother and then to the father. He explains that the police have discovered their son dead of an apparent drug overdose in his apartment. Their responses, while mainly unintelligible, clearly register shock and anguish. The exchange contains no identifying information.
After viewing the videotape, the trial court ruled: "I couldn't hear one word or discern one word of the people at the other end of the line who may be the parents. . . . [T]his court makes a finding that nothing can be understood to have been overheard in the published [telephone] conversation. . . ."
Plaintiffs' counsel objected that the court was making an inappropriate factual finding. Counsel indicated he wished to conduct discovery. The court asked: "What's that going to reveal?" Counsel responded: "That you can hear my clients and what they are saying." Defense counsel interjected that plaintiffs were required by statute to produce evidence to establish a probability they would prevail or in the alternative to file a discovery motion supported by a showing of good cause. Plaintiffs' counsel responded that his obligation to produce evidence was not triggered until the defense first established that its actions were protected by the First Amendment. Defense counsel objected. He noted that defendants had tendered the videotape almost two months earlier and had submitted an authenticating declaration two days prior to the hearing. Defense counsel argued: "And the cases in fact require that if he [plaintiffs' counsel] thought that information on the tape on the evidence we submitted was not credible, relevant, doctored or whatever he has suggested, then he has to do that with a good faith belief that he was obligated to do that early on."
The court denied a continuance for discovery and granted the motion to strike the complaint. The court's ruling states: "[D]efendants' Special Motion to Strike plaintiffs' Complaint is GRANTED, on the grounds that: (1) QRZ and the MGM defendants engaged in the acts complained of in the Complaint in furtherance of their rights of free speech under the United States and California Constitutions in connection with issues of public interest; and (2) plaintiffs cannot establish that there is a probability that they will prevail on any of their claims."
Appellants argue that the court erred in denying their request for discovery. We disagree. Section 425.16 stays discovery and requires a noticed motion demonstrating good cause before the court shall allow discovery. No such motion was filed. Rather, the request was buried in plaintiffs' opposition to the motion to strike and was not supported by any declarations or affidavits demonstrating good cause. Thus, the court did not abuse its discretion in denying the motion. ( Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1052; Evans v. Unkow, supra, 38 Cal.App.4th at p. 1499; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357.)
The court subsequently awarded costs and attorney fees to defendants. Defendant QRZ Media, Inc., was awarded $33,970.50 and the MGM defendants were awarded $32,485.50.
DISCUSSION Invasion of Privacy and Section 632
On appeal, plaintiffs only address section 632. We conclude that they have abandoned claims based on Penal Code sections 631 (wiretapping) and 634 (trespass to commit unauthorized act). ( Reyes v. Kosha, supra, 65 Cal.App.4th at p. 466, fn. 6.)
The Three recent Supreme Court Cases:
The trio of Supreme Court cases referenced in the introduction are: Shulman v. Group W Productions, Inc., supra, 18 Cal.4th 200; Wilson v. Layne (May 24, 1999, No. 98-83) ___ U.S. ___ [ 119 S.Ct. 1692]; and Sanders v. American Broadcasting Companies, Inc. (June 24, 1999, S059692) ___ Cal.4th ___. Each deals with media intrusion, and the two California cases also deal with violation of section 632. Shulman discusses application of section 425.16 to facts which are similar to this case. There, plaintiffs were involved in an automobile accident when their car ran off the road. Two of the plaintiffs, Ruth and her son Wayne, were trapped in the vehicle and had to be extricated. Ruth and Wayne were also evacuated by helicopter from the scene. A television crew from Group W productions and 4MN Productions was at the scene of the accident. The nurse assigned to the ambulance helicopter wore a microphone that captured her conversations with Ruth and Wayne, as well as with the hospital. None of the plaintiffs was aware of the fact that the rescue was being filmed or that their conversations were being recorded. A few weeks later, the rescue was broadcast as part of a television program "On Scene: Emergency Response." While in the hospital recuperating, Ruth saw the broadcast and claimed to be embarrassed and humiliated. She and the others involved in the accident filed suit.
For the first time plaintiffs here claim that because they reside in Texas and were in Texas when the police telephoned, their right of privacy should be evaluated under Texas law, not California law. They contend: "[T]he trial court erred in applying California rather than Texas law." While we note that plaintiffs' complaint made several references to the California constitutional right to privacy and the California Penal Code, it contained no reference to Texas law. At no time did plaintiffs ever ask the trial court to utilize Texas law. Nonetheless, plaintiffs point to the rule that on appeal a party may for the first time raise a pure question of law. That proposition does not aid plaintiffs. In this case, choice of law determines the elements of their causes of action. That determination, in turn, creates the analytical context in which the trial court determines if plaintiffs have established a probability they will prevail at trial. Permitting plaintiffs to change the theories of their case at this stage of the proceeding "would be contrary to our adversary system and would result in a miscarriage of justice. [Citation.]" ( Weber, Lipshie Co. v. Christian (1997) 52 Cal.App.4th 645, 660.)
The complaint alleged two claims for invasion of privacy: one for dissemination of private facts; and the other for unreasonable intrusion into the plaintiffs' privacy. It also alleged a claim based on violation of section 632. Based on section 425.16, the trial court granted summary judgment in favor of defendants, finding that the accident was newsworthy and that the producers' activities were protected by the First Amendment. The Court of Appeal reversed. Upon further review, the Supreme Court affirmed that part of the Court of Appeal decision relating to intrusion of privacy but reversed with regard to the cause of action for dissemination of private facts.
The Supreme Court first discussed the case in connection with the claim for dissemination of private facts, describing such a claim as follows: "The claim that a publication has given unwanted publicity to allegedly private aspects of a person's life is one of the more commonly litigated and well-defined areas of privacy law. In Diaz [ v. Oakland Tribune, Inc. (1983)] 139 Cal.App.3d [118] at page 126, the appellate court accurately discerned the following elements of the public disclosure tort: `(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.' [Citations.]" ( Shulman, supra, 18 Cal.4th at p. 214.) The court noted that "[t]he element critical to this case is the presence or absence of legitimate public interest, i.e., newsworthiness in the facts disclosed." ( Id. at p. 214.) The court concluded that the accident was a newsworthy event and was protected as "dissemination of truthful, newsworthy material. . . ." ( Id. at p. 215.) This finding encompassed the video showing extrication of the victims at the scene and any and all recordings of the nurse and the victims which could reasonably have been heard by another person on the scene.
The Supreme Court next turned to the claim for intrusion and identified the elements of the tort: "As stated in Miller [ v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463] and the Restatement, . . . the action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person." ( Shulman, supra, 18 Cal.4th at p. 231.) The court concluded that triable issues existed with whether or not plaintiffs had an objectively reasonable expectation of privacy in the interior of the rescue helicopter and with regard to the recorded conversations between Ruth and the nurse relating to her medical condition: "On this summary judgment record, we believe a jury could find defendants' recording of Ruth's communications to [the nurse] and other rescuers, and filming in the air ambulance, to be `"highly offensive to a reasonable person."' [Citation.]" ( Id. at p. 237.) By concluding that triable issues of fact existed on these issues, the Supreme Court necessarily found that the facts taken in the light most favorable to the plaintiffs established the tort of intrusion into a private place or conversation.
The court discussed the right of the media to gather news in such a situation: "The mere fact the intruder was in pursuit of a `story' does not, however, generally justify an otherwise offensive intrusion; offensiveness depends as well on the particular method of investigation used. At one extreme, "`routine . . . reporting techniques,'" such as asking questions of people with information (`including those with confidential or restricted information') could rarely, if ever, be deemed an actionable intrusion. [Citations.] At the other extreme, violation of well-established legal areas of physical or sensory privacy — trespass into a home or tapping a personal telephone line, for example — could rarely, if ever, be justified by a reporter's need to get the story. Such acts would be deemed highly offensive even if the information sought was of weighty public concern; they would also be outside any protection the Constitution provides to newsgathering. [Citations.]" ( Shulman, supra, 18 Cal.4th at p. 237.)
The court also addressed the claim for violation of section 632. "A confidential communication for purposes of Penal Code section 632 . . . need not fall within an evidentiary privilege. Rather, the term includes `any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering . . . or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.' [Citation.] The Invasion of Privacy Act, as we explained in Ribas [ v. Clark (1985) 38 Cal.3d 355], provides legal recognition of the individual's reasonable expectation of privacy against unauthorized interception and recording of confidential conversations: `While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. [Citation.]'" ( Shulman, supra, 18 Cal.4th at pp. 234-235, fn. omitted.)
The court concluded as follows: "`It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil and criminal statutes of general applicability. Under prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed.' ( Branzburg v. Hayes [(1972)] 408 U.S. [665] at pp. 682-683 [ 92 S.Ct. at p. 2657].) California's intrusion tort and section 632 are both laws of general applicability. They apply to all private investigative activity, whatever its purpose and whoever the investigator, and impose no greater restrictions on the media than on anyone else. (If anything, the media enjoy some degree of favorable treatment under the California intrusion tort, as a reporter's motive to discover socially important information may reduce the offensiveness of the intrusion.) These laws serve the undisputedly substantial public interest in allowing each person to maintain an area of physical and sensory privacy in which to live. Thus, defendants enjoyed no constitutional privilege, merely by virtue of their status as members of the news media, to eavesdrop in violation of section 632 or otherwise to intrude tortuously on private places, conversations or information." ( Shulman, supra, 18 Cal.4th at p. 239.)
In Wilson v. Layne, supra, a coalition of United States Marshals and local police officers gave permission to a photographer and reporter from the Washington Post to accompany them into a private home while unsuccessfully attempting to serve an arrest warrant on the son of the occupants. The parents were rousted out of bed in their nightclothes and the proceeding was witnessed by the reporter and the photographer who took numerous photographs. The parents sued the law enforcement officials in their individual capacity. The Supreme Court concluded that the right to privacy guaranteed by the Fourth Amendment precluded law enforcement from granting permission to the media to enter the premises and allowed the claims to proceed.
In reaching its conclusion, the court noted: "In 1604, an English court made the now-famous observation that `the house of every one is to him as his castle and fortress, as well for his defense against injury and violence, as for his repose.' ( Seymayne's Case, 77 Eng. Rep. 194, 5 Co. Rep. 91a, 91b, 195 (K.B.). In his Commentaries on the Laws of England, William Blackstone noted that `the law of England has so particular and tender a regard to the immunity of a man's house, that it stiles it his castle, and will never suffer it to be violated with impunity: agreeing herein with the sentiments of ancient Rome. . . . For this reason no doors can in general be broken open to execute any civil process; though, in criminal causes, the public safety supersedes the private.' William Blackstone, 4 Commentaries on the Laws of England 223 (1765-1769). The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home. . . ." ( Wilson v. Layne, supra, ___ U.S. ___ [ 119 S.Ct. at p. 1697].)
The court then addressed the presence of the media in connection with this valid police operation:
"Respondents argue that the presence of the Washington Post reporters in the Wilsons' home nonetheless served a number of legitimate law enforcement purposes. They first assert that officers should be able to exercise reasonable discretion about when it would `further their law enforcement mission to permit members of the news media to accompany them in executing a warrant.' . . . But this claim ignores the importance of the right of residential privacy at the core of the Fourth Amendment. It may well be that media ride-alongs further the law enforcement objectives of the police in a general sense, but that is not the same as furthering the purposes of the search. Were such generalized `law enforcement objectives' themselves sufficient to trump the Fourth Amendment, the protections guaranteed by that Amendment's text would be significantly watered down.
"Respondents next argue that the presence of third parties could serve the law enforcement purpose of publicizing the government's efforts to combat crime, and facilitate accurate reporting on law enforcement activities. There is certainly language in our opinions interpreting the First Amendment which points to the importance of `the press' in informing the general public about the administration of criminal justice. In Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491-492 (1975), for example, we said `in a society in which each individual has but limited time and resources with which to observe at first hand the operations of his government, he relies necessarily upon the press to bring to him in convenient form the facts of those operations.' See also Richmond Newspapers, Inc. v. Virginia, 488 U.S. 555, 572-573 (1980). No one could gainsay the truth of these observations, or the importance of the First Amendment in protecting press freedom from abridgment by the government. But the Fourth Amendment also protects a very important right, and in the present case it is in terms of that right that the media ride-alongs must be judged.
"Surely the possibility of good public relations for the police is simply not enough, standing alone, to justify the ride-along intrusion into a private home. And even the need for accurate reporting on police issues in general bears no direct relation to the constitutional justification for the police intrusion into a home in order to execute a felony arrest warrant.
"Finally, respondents argue that the presence of third parties could serve in some situations to minimize police abuses and protect suspects, and also to protect the safety of the officers. While it might be reasonable for police officers to themselves videotape home entries as part of a `quality control' effort to ensure that the rights of homeowners are being respected, or even to preserve evidence, [citation], such a situation is significantly different from the media presence in this case. The Washington Post reporters in the Wilsons' home were working on a story for their own purposes. They were not present for the purpose of protecting the officers, much less the Wilsons. . . . Thus, although the presence of third parties during the execution of a warrant may in some circumstances be constitutionally permissible, . . . the presence of these third parties was not." ( Wilson v. Layne, supra, ___ U.S. ___ [ 119 S.Ct. at p. 1698-1699].)
In Sanders v. American Broadcasting Companies, Inc., supra, a reporter employed by American Broadcasting Companies, Inc. obtained employment with Psychic Marketing Group (PMG) as a "telepsychic." On the premises of PMG she covertly videotaped her conversations with several coworkers, including plaintiff Mark Sanders. Thereafter, portions of the videotape were included within a broadcast on ABC's television program PrimeTime Live, a broadcast about the telepsychic industry. Sanders sued ABC and the reporter "based on the videotaping itself: violation of Penal Code section 632 . . . and the common law tort of invasion of privacy by intrusion." ( Id. [typed opn. at p. 4, fn. omitted].) The trial court bifurcated the two claims and allowed the claim based on section 632 to proceed. In a special verdict the jury was asked whether "the conversation upon which defendants allegedly intruded was conducted `in circumstances in which the parties to the communication may reasonably have expected that the communications may have been overheard.'" ( Id. [typed opn. at pp. 4-5].) The jury answered in the affirmative, and the court entered judgment in favor of the defendants on this claim.
The court denied a motion for nonsuit on the claim for intrusion and the jury ultimately rendered a verdict in favor of Sanders, fixing compensatory damages at $335,000 and punitive damages at $300,000. In a divided opinion, the Court of Appeal reversed the judgment concluding that the jury finding with regard to the section 632 claim precluded recovery under the common law claim. ( Id. [typed opn. at p. 6].) The Supreme Court reversed and concluded that the mere fact the conversations may have been overheard by other employees did not preclude a claim against the media for surreptitiously recording the conversations.
"We granted review to determine whether the fact a workplace interaction might be witnessed by others on the premises necessarily defeats, for purposes of tort law, any reasonable expectation of privacy the participants have against covert videotaping by a journalist. We conclude that it does not: In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants' coworkers. . . .
"Although we reverse, for these reasons, the Court of Appeal's judgment for defendants, we do not hold or imply that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores or other workplaces. Whether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances. In addition, liability under the intrusion tort requires that the invasion be highly offensive to a reasonable person, considering, among other factors, the motive of the alleged intruder. [Citations.]" ( Id. [typed opn. at pp. 2-3], citing Shulman, italics added.)
The essence of these three cases is that the news media does not have unfettered rights to violate the privacy of individuals, even where the investigative story is of some legitimate public interest. Additionally, the California Supreme Court cases recognize that while individuals may realize that their conversations may be overheard or may be subject to later disclosure, that does not preclude a claim against the media for recording the scene or the conversations without consent when the invasion is "highly offensive to a reasonable person." ( Id.) Finally, Wilson v. Layne demonstrates the right to privacy creates a bridge between the First Amendment and Fourth Amendment when the media are involved.
The Instant Case:
Plaintiffs asserted claims based on publication of private facts, intrusion, and violation of section 632.
As in Shulman, we agree that the subject of the broadcast, death of Michael Marich by potential drug overdose, was newsworthy for purposes of section 425.16
We also recognize that a claim of right to privacy is personal and cannot be asserted by anyone other than the person whose privacy has been invaded. The claim dies with the person. ( Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1485, citing Flynn v. Higham (1983) 149 Cal.App.3d 677, 683.) Thus, plaintiffs have no standing to assert claims which their son might have been able to assert. However, that does not preclude plaintiffs from recovering for invasion of their privacy.
Plaintiffs' claims are triggered by the phone call which was made to the parents, recorded without their consent, and then published. The telephone call cannot be segregated from the remainder of the videotape, which gives the telephone call contextual meaning. The scenario is analogous to the situations presented in Shulman and Sanders where the media recorded the events without the consent of the intruded upon subjects.
Defendants argue that plaintiffs could have no reasonable expectation of privacy in connection with a telephone call from a police officer acting on official business, citing the cases of People v. Siripongs (1988) 45 Cal.3d 548, 564; People v. Suite (1980) 101 Cal.App.3d 680, 688; and People v. Canard (1967) 257 Cal.App.2d 444, 464. We agree with the basic concept espoused in those cases, that a person speaking with a police officer may expect that part or all of his or her conversation may be divulged by that officer either by written memoranda or by passing on the gist of the conversation to another officer. However, that is not the same as a third person recording the conversation for later use on a commercial television program. The distinction is recognized in both Shulman and Sanders in connection with causes of action for intrusion and violation of section 632.
The invasion depicted here also has the potential for being determined as highly offensive by a jury. As we have previously noted, a call to a parent to advise of the untimely death of a child is a very personal and potentially agonizing situation. The fact that the actual words spoken by the parents may not be discerned may impact on the claim for disclosure of private facts or the amount of damages but it does not preclude claims for common law intrusion: "The intrusion tort, unlike that for publication of private facts, does not subject the press to liability for the contents of its publications. Newsworthiness, as we stated earlier, is a complete bar to liability for publication of private facts and is evaluated with a high degree of deference to editorial judgment. The same deference is not due, however, when the issue is not the media's right to publish or broadcast what they choose, but their right to intrude into secluded areas or conversations in pursuit of publishable material. At most, the Constitution may preclude tort liability that would `place an impermissible burden on newsgatherers[.]' [Citation.]" ( Shulman, supra, 18 Cal.4th at p. 240.) Nor does the claim for intrusion require that members of the camera crew be guilty of trespass or of committing any other independent crime or tort. ( Shulman, supra, 18 Cal.4th at p. 241; see also Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1484.)
A similar result obtains with regard to the statutory claims based on section 632. The essence of a section 632 claim is eavesdropping as demonstrated by Penal Code section 630 which declares the Legislative intent behind the Invasion of Privacy Act: "The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. [¶] The Legislature by this chapter intends to protect the right of privacy of the people of this state." (Pen. Code, § 630.)
Section 632, subdivision (c) provides: "The term `confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto. . . ." (Italics added.) Thus, if one party to the conversation has not consented to the recording, section 632 has been violated. ( Coulter v. Bank of America (1994) 28 Cal.App.4th 923, 928.) The fact the actual words spoken by the parents may not be discerned does not preclude the viewer from recognizing the anguish in the response to the phone call.
We conclude that the videotape demonstrates a prima facie case of invasion of privacy by intrusion as well as violation of section 632. Therefore, the court erred in granting the section 425.16 motion on those causes of action.
The claim for invasion based upon publication of private facts is more problematical. Neither the identity of the deceased nor that of plaintiffs is divulged in the videotape. Of course, disclosure of facts relating solely to plaintiffs' son does not give rise to a claim by plaintiffs. (See, e.g., Coverstone v. Davies (1952) 38 Cal.2d 315, 323-324 [parents have no cause of action based upon article about their son's arrest]; Flynn v. Higham, supra, 149 Cal.App.3d at p. 683 [son had no cause of action based upon disclosure in a book of private facts about father]; Kelly v. Johnson Publishing Co. (1958) 160 Cal.App.2d 718, 721-722 [sisters have no cause of action based upon newspaper's disclosure of private facts about their brother].)
To the extent that plaintiffs' cause of action is based upon the claim that private facts about them were disclosed, such as their reactions to their son's death, the theory fails because the television program contains no specific information identifying them. Plaintiffs attempt to avoid the force of this conclusion by correctly noting that the California Supreme Court has observed that an invasion of privacy claim does not depend on whether the plaintiff's identity is known to all viewers. A claim can be stated if the publication contains sufficient factual details that friends or members of the family could identify the plaintiff. ( Shulman v. Group W Productions, Inc., supra, 18 Cal. 4th at p. 230, fn. 12.) The problem with the argument is that if a viewer had been able to identify plaintiffs from the videotape, it would have required prior knowledge of at least some of the facts to complete the connection with the plaintiffs. Unfortunately for the plaintiffs, they failed to file affidavits or declarations demonstrating what additional private facts may have been disclosed in the videotape or that someone was able to identify plaintiffs from the videotape. It was their burden to do so and they failed to meet that burden. We conclude that the trial court properly found that plaintiffs had failed to establish a probability of succeeding on an invasion of privacy claim based upon public disclosure of private facts.
Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress, a plaintiff must show that defendant engaged in outrageous conduct causing emotional distress and that defendant's conduct was "directed at the plaintiff, or occurr[ed] in the presence of a plaintiff of whom the defendant is aware." ( Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
In plaintiffs' complaint, this claim was based upon the allegations that defendants created the videotape without their consent and broadcast it over their express objection, causing them to suffer severe emotional distress.
For several reasons, plaintiffs failed to establish a probability of prevailing upon this claim. They presented no evidence that they had ever objected to the broadcast, no evidence they had suffered severe emotional distress, and no evidence that the broadcast was directed at them. Plaintiffs therefore failed to establish a probability that they could prevail at trial on this legal theory.
Plaintiffs' reliance upon Williams v. City of Minneola (Fla.Dist.Ct.App. 1991) 575 So.2d 683 is misplaced. While it is true this opinion from an intermediate Florida appellate court held that an action for intentional infliction of emotional distress can lie even when the defendants' actions are not directed at the plaintiffs, our Supreme Court essentially rejected that approach in Christensen v. Superior Court, supra, 54 Cal.3d 868, notwithstanding Justice Mosk's citation to Williams in his concurring and dissenting opinion at pages 908-909.
The Award of Costs and Attorney Fees
Plaintiffs contend that the trial court award of costs and attorney fees should be set aside on the basis that the trial court's order granting defendants' motion to strike was incorrect on the merits. Because we conclude that the trial court did err, at least in part, we agree that the award of costs and attorney fees must be set aside. Because the matter must be remanded for further proceedings and a different outcome could result, we see no need to further discuss these issues at this point.DISPOSITION
The judgment dismissing plaintiffs' action is reversed as well as the order for costs and fees. The matter is remanded to the trial court for further proceedings. Costs on appeal to plaintiffs.
I concur:
CURRY, J.
I respectfully dissent from that portion of the majority opinion which concludes that plaintiffs established "a probability that [they] will prevail on the claim[s]" (Code Civ. Proc., § 425.16, subd. (b)) for invasion of privacy based upon intrusion into seclusion and violation of Penal Code section 632.
The majority correctly notes that the only evidence offered at the hearing on the defense motion to strike the complaint was a properly authenticated videotape copy of the television show in issue. And, as the majority concedes, the videotape, including the televised portion of the officer's telephone conversation with plaintiffs, contains no information identifying plaintiffs. The majority characterizes plaintiffs' portion of the conversation as follows: "Their responses, while mainly unintelligible, clearly register shock and anguish" and ultimately concludes: "[T]he videotape demonstrates a prima facie case of invasion of privacy by intrusion as well as violation of section 632." (Majority opn., ante, pp. 9-10 24.) I disagree.
Having viewed and listened to the videotape, I, like the trial court, categorically find that the videotape contains nothing more than emissions of sound. The videotape contains no discernible reaction by plaintiffs, emotional or otherwise, to the news of their son's death, a fact implicitly conceded by the majority when it later concludes: " The fact that the actual words spoken by the parents may not be discerned may impact on the claim for disclosure of private facts or the amount of damages but it does not preclude claims for common law intrusion." (Majority opn., ante, p. 22, italics added.) I disagree with the majority's statement that the videotape shows that plaintiffs' responses "clearly register shock and anguish." (Majority opn, ante, p. 10.) For me, the fact that the videotape captures none of plaintiffs' words, remarks, expressions, or any tonal indication of their emotional reaction is dispositive to the issues raised on this appeal. That fact compels the conclusion that given the limited evidentiary record presented to the trial court, plaintiffs failed to establish a probability they would succeed on either their claim of intrusion into seclusion or violation of Penal Code section 632. I explain.
The trial court ruled: "I couldn't hear one word or discern one word of the people at the other end of the line who may be the parents. . . . [T]his court makes a finding that nothing can be understood to have been overheard in the published [telephone] conversation."
I agree with the majority's conclusion, set forth in footnote five, ante, that the trial court did not abuse its discretion in denying plaintiffs' discovery request.
Intrusion into seclusion requires intrusion into a private conversation in a manner highly offensive to a reasonable person. ( Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 237.) The majority apparently concedes that if the videotape merely first showed the police officer telephoning plaintiffs without any recordation of their side of the conversation and then showed the officer turning to the camera and repeating or paraphrasing plaintiffs' responses, no cause of action for intrusion into seclusion would be stated. (Majority opn., ante, p. 22.) The majority correctly notes the linchpin of a successful claim is the recordation of the conversation for subsequent television broadcast. That fact was present in both cases upon which the majority rely. In Shulman, the media broadcast surreptitiously recorded conversations had between plaintiffs and a nurse. In Sanders v. American Broadcasting Companies, Inc. (June 24, 1999, S059692) ___ Cal.4th ___, the media broadcast surreptitiously recorded conversations conducted between an undercover reporter and several employees for the Psychic Marketing Group. In each of those instances, the statements of the plaintiffs were clear and audible and were transmitted to third parties. Here, on the other hand, plaintiffs made no clear or audible statements. Again, all that can be heard is a low volume, muffled emission of sound. Consequently, while plaintiffs may have possessed a reasonable expectation that the telephone call from the officer would not be surreptitiously recorded and transmitted to television audiences, that recordation and transmission never occurred. There was no "intrusion" into a private conversation which a reasonable person would find highly offensive within the meaning of this tort. The zone of privacy protected by the tort is the plaintiff's portion of the conversation. Absent a successful recordation of that portion of the conversation, there is no penetration into the plaintiff's zone of privacy; therefore, no intrusion into seclusion. To conclude otherwise would mean that defendants would commit this tort simply by engaging in a failed attempt to record a phone conversation. (See Sacramento County Deputy Sheriffs' Assn. v. County of Sacramento (1996) 51 Cal.App.4th 1468, 1487 ["[E]ven accepting plaintiffs' characterization of videotaping as highly intrusive, the intrusiveness was abated by the absence of audio capabilities."].)
Given defendants' decision to obliterate Marich's face and other identifying information in the apartment as well as its decision not to state either Marich's name or the names of his parents, it appears defendants intentionally chose not to record plaintiffs' portion of the phone conversation. One must assume that in light of the sophisticated monitoring technology available to the average consumer, a television station certainly would have access to the equipment necessary to record and transmit the other end of a phone conversation if it desired to do so. For whatever reason(s), defendants decided merely to televise the officer's phone call to plaintiffs.
In a similar vein, I conclude plaintiffs failed to establish a probability they would prevail upon their claim that defendants violated Penal Code section 632 That statute makes it a crime if one "intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a . . . telephone." The statute defines "confidential communication" as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made . . . in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
The Shulman court itself noted that because case law does not provide a "bright line" on the question of when use of a cordless microphone violates Penal Code section 632, "each case must be taken on its facts." ( Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at p. 237.)
In this matter plaintiffs have failed to establish a probability that they would prevail upon an invasion of privacy claim predicated upon defendants' alleged violation of Penal Code section 632. Insofar as plaintiffs are concerned, the confidential portion of the conversation is their side: their responses, questions, or statements to the officer. As explained above, nothing can be heard in plaintiffs' side of the conversation. The videotape captures only a one-sided conversation: the police officer's statements to plaintiffs. In regard to plaintiffs' side of the conversation, sounds can be heard but the recording is unintelligible, revealing nothing of their confidential communications to the officer. That is, plaintiffs' statements were never captured, overheard, or recorded. Because the videotape revealed only one side (the police officer's side) of the telephone conversation, there is no eavesdropping or recording of a confidential communication made by plaintiffs. Simply stated, defendants' action of videotaping the officer's telephoning of plaintiffs does not fall within the ambit of Penal Code section 632.
Lastly, I note that Wilson v. Layne (May 24, 1999, No. 98-83) ___ U.S. ___ [ 119 S.Ct. 1692], the very recent decision from the United States Supreme Court, adds nothing of real consequence to this matter. That case did not directly involve the question of the media's civil liability for its actions. Instead, the question was whether law enforcement could be held liable for money damages based upon the allegation that law enforcement violated the Fourth Amendment rights of the individuals whose property was entered because it permitted the media to accompany it.
Insofar as is relevant to this case, Wilson v. Layne, supra, certainly supports the proposition that the media can be liable in tort for its unconsented entry into a private residence notwithstanding the fact its employees accompanied law enforcement. That, however, is already the law in California. ( Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463 [media liable for trespass and invasion of privacy (intrusion upon seclusion) based upon unauthorized entry into plaintiff's apartment and filming of paramedic efforts inside the apartment].) The pertinent point is that a claim based upon that entry is no longer in issue in this case. Although pled in the complaint, plaintiffs failed to establish at the hearing on the motion to strike a probability they would prevail upon such a cause of action because they failed to prove any possessory interest in their son's apartment. Furthermore, plaintiffs' reply brief disclaimed any intent to claim such a possessory interest although they urged to the contrary at the hearing on this matter.