Shulman v. Group W Productions, Inc.

BROWN, J.,

Concurring and Dissenting.— I concur in the plurality’s conclusion that summary judgment should not have been granted as to the cause of action for intrusion, and I generally concur in its analysis of that cause of action. 1 I respectfully dissent, however, from the conclusion that summary judgment was proper as to plaintiff Ruth Shulman’s cause of action for publication of private facts. For the reasons discussed below, I would hold that there are triable issues of material fact as to that cause of action as well.

Ironically, the plurality begins its discussion of the publication of private facts cause of action by describing it as “one of the more . . . well-defined areas of privacy law.” (Plur. opn., ante, at p. 214.) While that may have been an accurate description before today’s extended exegesis, it is certainly no longer the case. After paying lip service to this court’s well-established, scholarly precedents, the plurality proceeds to ignore their test for assessing newsworthiness. Worse yet, the new test adopted in the plurality opinion *250 seriously compromises personal privacy by rendering otherwise private facts newsworthy whenever they bear a “logical relationship” to a matter of legitimate public concern, even in situations where the news media obtain the private facts by deceptive and unlawful means.

The plurality opinion starts innocuously enough, correctly reciting the elements of a cause of action for publication of private facts: “ ‘(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.’ ” (Plur. opn., ante, at p. 214, quoting Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 [ 188 Cal.Rptr. 762 ].) The plurality opinion then recounts the general test we have consistently applied in determining whether the private fact disclosed is of legitimate public concern—that is, whether it is newsworthy: “ ‘In determining whether a particular incident is “newsworthy” and thus whether the privilege shields its truthful publication from liability, the courts consider a variety of factors, including the social value of the facts published, the depth of the article’s intrusion into ostensibly private affairs, and the extent to which the party voluntarily acceded to a position of public notoriety.’ ” (Plur. opn., ante, at p. 220, quoting Kapellas v. Koftnan (1969) 1 Cal.3d 20, 36 [ 81 Cal.Rptr. 360 , 459 P.2d 912 ] (hereafter Ka pellas), see also Forsher v. Bugliosi (1980) 26 Cal.3d 792, 810, 812 [ 163 Cal.Rptr. 628 , 608 P.2d 716 ] [same]; Briscoe v. Reader’s Digest Association, Inc. (1971) 4 Cal.3d 529, 541 [ 93 Cal.Rptr. 866 , 483 P.2d 34 , 57 A.L.R.3d 1 ] [same].)

In this case, a straightforward application of the Kapellas newsworthiness test leads to one inescapable conclusion—that, at the very least, there are triable issues of material fact on the question of newsworthiness. The private facts broadcast had little, if any, social value. (Kapellas, supra, 1 Cal.3d at p. 36 .) The public has no legitimate interest in witnessing Ruth’s disorientation and despair. Nor does it have any legitimate interest in knowing Ruth’s personal and innermost thoughts immediately after sustaining injuries that rendered her a paraplegic and left her hospitalized for months—“I just want to die. I don’t want to go through this.” The depth of the broadcast’s intrusion into ostensibly private affairs was substantial. {Ibid.) As the plurality later acknowledges in analyzing “the depth of the intrusion” for purposes of Ruth’s intrusion cause of action, “[a]rguably, the last thing an injured accident victim should have to worry about while being pried from her wrecked car is that a television producer may be recording everything she says to medical personnel for the possible edification and entertainment of casual television viewers. HO For much the same reason, a jury could reasonably regard entering and riding in an ambulance—whether on the ground or in the air—with two seriously injured patients to be an egregious *251 intrusion on a place of expected seclusion. ... A jury could reasonably believe that fundamental respect for human dignity requires the patients’ anxious journey be taken only with those whose care is solely for them and out of sight of the prying eyes (or cameras) of others.” (Plur. opn., ante, at p. 238.) There was nothing voluntary about Ruth’s position of public notoriety. (Kapellas, supra, 1 Cal.3d at p. 36 .) She was “involuntarily caught up in events of public interest”' (plur. opn., ante, at p. 215), all the more so because defendants appear to have surreptitiously and unlawfully recorded her private conversations with Nurse Laura Carnahan. (See id. at pp. 233-235.)

Inexplicably, the plurality jettisons the Kapellas newsworthiness test in favor of its own “logical relationship” test. Under this new test, “where the facts disclosed about a private person involuntarily caught up in events of public interest bear a logical relationship to the newsworthy subject of the broadcast and are not intrusive in great disproportion to their relevance—the broadcast was of legitimate public concern, barring liability under the private facts tort.” (Plur. opn., ante, at p. 215; see also id. at pp. 224-226, 228-229, 242.) Here, the plurality misapplies its own new test, wrongly concluding there are no triable issues of material fact. (Compare id. at pp. 228-230 [no triable issues] with id. at pp. 237-238 [describing the highly intrusive nature of the news media’s conduct in this case].) More significantly, however, the plurality fails to acknowledge that its new test is a radical departure from that set out in Kapellas and its progeny, a departure that should be obvious to even a casual reader.

Under the plurality’s new test, personal privacy must yield whenever the overall subject matter of a broadcast is newsworthy and the private facts disclosed bear a “logical relationship” to that subject matter. Thus, to “[t]he more difficult question [of] whether Ruth’s appearance and words as she was extricated from the overturned car, placed in the helicopter and transported to the hospital were of legitimate public concern” (plur. opn., ante, at p. 228), the plurality offers the facile answer that they were because “her disorientation and despair were substantially relevant to the segment’s newsworthy subject matter” (id. at p. 229).

Contrary to the plurality’s claim that it is “accommodating conflicting interests in personal privacy and in press freedom as guaranteed by the First Amendment to the United States Constitution” (plur. opn., ante, at p. 215, italics added), in reality it sacrifices the constitutional right to privacy on the altar of the First Amendment. Unlike the Kapellas newsworthiness test, which expressly considers both “the depth of the [broadcast’s] intrusion into ostensibly private affairs” and “the extent to which the party voluntarily acceded to a position of public notoriety” as part of the mix (Kapellas, supra, *252 1 Cal.3d at p. 36 ), the plurality’s new “logical relationship” test considers only whether the private facts disclosed are “intrusive in great disproportion to their relevance” (plur. opn., ante, at p. 215).

The latter inquiry is substantially less accommodating of personal privacy than the former. Suppose, for example, that a television producer decided to broadcast a story on the reluctance of victims to report incidents of sexual assault, undeniably a newsworthy subject matter. Under the plurality’s formulation, the producer would then be free to broadcast a surreptitiously and unlawfully recorded account of a specific victim’s reluctance, conveyed in confidence to her therapist, because that too would undeniably bear “a logical relationship to the newsworthy subject of the broadcast” and would not be “intrusive in great disproportion to [its] relevance.” 2 (Plur. opn., ante, at p. 215, italics added.) The Kapellas newsworthiness test, by contrast, would yield the correct result—namely, that the therapy session is not newsworthy because “the depth of the [broadcast’s] intrusion into ostensibly private affairs” is simply too great and because the victim did not “voluntarily accede[] to a position of public notoriety.” (Kapellas, supra, 1 Cal.3d at p. 36 .)

In short, I see no reason to abandon our traditional newsworthiness test, which has produced consistent and predictable results over the course of nearly three decades. As I have explained, a straightforward application of that test demonstrates there are triable issues of material fact on the question of newsworthiness and, hence, that summary judgment should not have been granted on Ruth’s cause of action for publication of private facts.

For the reasons discussed above, I would affirm the judgment of the Court of Appeal in its entirety.

Baxter, J., concurred.

Respondents’ petition for a rehearing was denied July 29, 1998, and the opinion was modified to read as printed above. Mosk, J., and Chin, J., were of the opinion that the petition should be granted.

I decline to join the plurality opinion’s discussion of the intrusion cause of action in its entirety. As the plurality notes, “[t]he conduct of journalism does not depend, as a general matter, on the use of secret devices to record private conversations.” (Plur. opn., ante, at p. 239.) Therefore, I do not share the view that “[equipment such as hidden cameras and miniature cordless and directional microphones are powerful investigative tools for newsgathering. . . .” (Id. at p. 237.) On a more fundamental level, I disagree with the artificial barrier the plurality erects between the publication of private facts and the intrusion causes of action. Unlike the plurality, for instance, I would hold that the depth of the intrusion into private affairs and the lawfulness of the news media’s conduct are relevant to both causes of action.

Apparently recognizing the absurdity of precluding recovery under these circumstances, the plurality all but concedes that damages under an intrusion cause of action must include compensation for injury resulting from the broadcast of private facts gathered through intrusion. (Plur. opn., ante, at p. 240, fn. 18.) Likewise, the plurality conveniently sidesteps the. significance of unlawful acquisition to a publication of private facts cause of action, “regarding it as going [only] to the extent of allowable damages for intrusion.” (Id. at p. 230, fn. 11.) The only reasoning behind this ipse dixit—it is so because we say so. In reality, unlawful acquisition is clearly relevant to both “the depth of the [broadcast’s] intrusion into ostensibly private affairs” and “the extent to which the party voluntarily acceded to a position of public notoriety” ( Kapellas, supra, 1 Cal.3d at p.. 36), two key factors in the traditional newsworthiness formulation.