Filed 8/2/07 On rehearing
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
BLANCHE HALL,
Plaintiff and Respondent,
B192371
(Los Angeles County
Super. Ct. No. BC343204)
v.
TIME WARNER, INC., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County,
Robert L. Hess, Judge. Reversed and remanded with directions.
White O’Connor Curry, Michael J. O’Connor, David E. Fink and
Amanda M. Leith for Defendants and Appellants.
Law Offices of Bruce Altschuld and Bruce Altschuld for Plaintiff and
Respondent.
Blanche Hall was Marlon Brando’s housekeeper many years ago. Brando’s will
was filed in probate after his death in July 2004. The will revealed that Brando had
named Hall as a beneficiary in his living trust. A reporter for the producers of Celebrity
Justice, a nationally broadcast television program, visited Hall in her room in a
retirement home, interviewed her, and portions of the interview were televised. She
sued the producers for trespass, intrusion upon seclusion, public disclosure of private
facts, intentional infliction of emotional distress, and elder abuse. The trial court denied
1
the defendants’ special motion to strike the complaint (Code Civ. Proc., § 425.16)
because it concluded that the complaint did not arise from an act in furtherance of the
defendants’ right of petition or free speech in connection with a public issue.
We conclude otherwise. The terms of Brando’s will and living trust were an
issue of widespread public interest, and the complaint arises from conduct by the
defendants in furtherance of their right of free speech in connection with that public
issue. The trial court’s conclusion to the contrary was error. Because the court did not
reach or decide the question whether Hall had established a probability of prevailing on
the counts alleged in her complaint or rule on objections to evidence presented by the
parties with respect to that question, we will reverse the order and remand the matter
with directions to decide those matters in the first instance. Finally, we reject Hall’s
1
Unless otherwise stated, all further statutory references are to the Code of Civil
Procedure.
2
argument that the defendants’ failure to schedule the motion for a hearing within 30
days after the motion was served mandated the denial of the motion.
FACTUAL AND PROCEDURAL BACKGROUND
1.
Factual Background
Brando was a well-known actor, first on stage and later in motion pictures. He
won Academy Awards for his performances in On the Waterfront (Columbia Pictures
1954) and The Godfather (Paramount Pictures 1972) and appeared in numerous other
films. He was often in the public eye for his exploits on and off the screen and his at
times tumultuous private life. Brando died on July 1, 2004, at the age of 80. His
obituary appeared on the first page of major newspapers, including the New York
Times, Los Angeles Times, and International Herald Tribune.
A petition for probate of Brando’s will was filed in the Los Angeles Superior
Court on July 9, 2004, together with a copy of the will. The will identified 10 living
children, including an adopted daughter, and one deceased daughter. The will stated
that Brando intentionally did not provide for either his adopted daughter or the issue of
his predeceased daughter in his will or living trust, and disinherited those heirs. The
pour-over provisions of the will stated that his living trust provided for monthly
payments to Hall and another individual who also was not a Brando family member.
The petition for probate stated that Brando’s relationship with Hall and the other
individual was as friends and listed Hall’s address at a retirement home in Los Angeles.
Various newspapers and other publications published the details of the will in the days
that followed and specifically identified Hall as a beneficiary.
3
Time Warner, Inc., TTT West Coast, Inc., Time Telepictures Television, and
Harvey Levin Productions, Inc. (the defendants), produced the nationally broadcast
television program Celebrity Justice, which reported on legal proceedings involving
well-known individuals. They obtained a copy of Brando’s will from the court file and
assigned a reporter, Joe Tobin, to interview Hall. Tobin visited the retirement home on
July 12, 2004. He approached the reception desk in the lobby and asked to see Hall.
The receptionist directed him to a building across the street, which was part of the
retirement home. Tobin entered the second building, approached a worker, and asked to
see Hall. She asked Tobin who he was. The parties dispute his response. The worker
then led Tobin to Hall’s room.
Hall was Brando’s housekeeper from approximately 1963 until some unspecified
date. She was 82 years old at the time of the interview and had been suffering from
dementia and Alzheimer’s disease for several years. Her sister had informed her of
Brando’s death on several occasions before the interview. Hall was dressed and sitting
on the bed with the television on when Tobin entered her room. She stated, “I don’t
know you.” Tobin stated that he was a reporter and was doing a story on Brando.
When he mentioned Brando’s death, Hall responded with surprise. Tobin stated that
Hall was named as a beneficiary in Brando’s will, and Hall responded that she was not
2
aware of that. Tobin maintains that Hall consented to an on-camera interview. Tobin
asked her some questions and recorded the interview using a video recorder. Part of the
2
The defendants objected to Tobin’s declaration on this and other points.
4
interview was broadcast on Celebrity Justice that evening in a segment lasting
approximately three minutes.
Hall filed a complaint against the corporate owner of the retirement home in July
2005, alleging that it failed to provide adequate security for its residents, failed to
protect her from an unwanted intrusion by the defendants, and provided deficient care
and supervision. She alleged that the defendants’ reporters “exploited the non-existent
security features of the . . . facility and thereby gained easy access to Ms. Hall,” and that
the reporters “purposefully and viciously awakened, intimidated, and illegally obtained
audio-tape and videotape of [Hall].” She alleged counts for breach of contract, fraud,
negligence, intentional and negligent infliction of emotional distress, unfair business
practices, and elder abuse under both the Elder Abuse and Dependent Adult Civil
Protection Act (Elder Abuse Act) (Welf. & Inst. Code, § 15600 et seq.) and Penal Code
section 368, subdivision (c). The complaint apparently was dismissed with prejudice in
January 2006.
Hall also filed a complaint against Time Warner, Inc., in the United States
District Court for the Central District of California in July 2005. She alleged counts for
trespass, intrusion upon seclusion, public disclosure of private facts, intentional
infliction of emotional distress, and elder abuse under the Elder Abuse Act. She later
dismissed that complaint and then commenced the present action in the trial court
below.
5
2.
Trial Court Proceedings
Hall filed her complaint in the present action in November 2005, alleging counts
for trespass, intrusion upon seclusion, public disclosure of private facts, intentional
infliction of emotional distress, and elder abuse under the Elder Abuse Act. She alleges
that the retirement home “maintains the contractually required rigorous supervisory
safety procedures and security measures to keep its patients safe and to protect the
patients from outsiders.” She also alleges that the retirement home maintained a
closed-circuit television monitoring system and required guests to sign in before visiting
residents. Hall alleges that the defendants’ reporters intentionally circumvented the
security measures and sign-in procedure and informed the staff who confronted them in
the hallway that they were her family relatives. She alleges that the reporters “took their
cameras clandestinely beyond the staff that they had just defrauded,” “burst into
Blanche Hall’s room,” “aroused Mrs. Hall[,] told her the news of Marlon Brando’s
death[, and] then recorded her virtually incoherent response.” Hall alleges that the
reporters “ambushed and awakened” her, “harassed, provoked, and intimidated” her,
and “bombarded with questions about her financial interest as a named beneficiary in
the Brando Will.”
The defendants filed a special motion to strike the complaint under the
anti-SLAPP statute (§ 425.16) in April 2006. They argued that their news gathering and
reporting were acts in furtherance of their constitutional right of free speech and that
Hall could not demonstrate a probability of prevailing on her counts against them. They
filed declarations by Tobin and Levin describing the events surrounding the interview
6
and submitted additional evidence of Brando’s fame and notoriety and publicity
concerning his will.
Hall argued in opposition that the defendants’ conduct was tortious, that the
interview was not newsworthy, and that Hall had no capacity to consent to the
interview. She did not cite or discuss the requirement that a cause of action subject to
the anti-SLAPP statute must arise from an act in furtherance of the defendant’s right of
petition or free speech in connection with a public issue (§ 425.16, subd. (b)(1)). She
filed declarations by her sister, a worker at the retirement home, and a physician. She
also filed objections to the declarations by Tobin and Levin. The defendants filed
objections to Hall’s declarations.
The trial court concluded that the defendants had failed to satisfy their predicate
burden to show that Hall’s complaint arose from an act in furtherance of their right of
petition or free speech “in connection with a public issue” (§ 425.16, subd. (b)(1), italics
added). The court stated in its order, filed on June 8, 2006, that although Brando was a
public figure, Hall was neither a public figure nor a limited purpose public figure and
did not become a public figure by virtue of her association with Brando’s will. The
court stated that the media reports submitted by the defendants mentioning Hall in
connection with the will did not disclose “any real degree of public interest in Ms. Hall
or her relationship to Mr. Brando. [Fn. omitted.]” The court therefore denied the
special motion to strike, without reaching or ruling on the evidentiary objections or
deciding whether Hall had demonstrated a probability of prevailing on her complaint.
The defendants timely appealed the order.
7
CONTENTIONS
The defendants contend (1) Brando’s decisions regarding the disposition of his
assets after his death were issues of public interest within the meaning of the
anti-SLAPP statute; (2) Hall consented to the interview in her room, so the defendants
cannot be liable for either trespass or intrusion upon seclusion; (3) the defendants
cannot be liable for intrusion upon seclusion because their manner of entry into the
room was not highly offensive to a reasonable person; (4) the defendants cannot be
liable for public disclosure of private facts because they disclosed no private facts, the
information disclosed was neither offensive nor objectionable, and the information was
newsworthy; (5) the defendants cannot be liable for intentional infliction of emotional
distress because their conduct was not extreme and outrageous, and there is no evidence
that they intended to cause injury; and (6) the defendants cannot be liable under the
Elder Abuse Act because they had no duty of care toward Hall, and their conduct was
not “abuse of an elder” within the meaning of the act.
Hall disputes each of those contentions and argues that the trial court was
required to deny the special motion to strike because the motion was not scheduled for a
hearing within 30 days after the date the motion was served.
DISCUSSION
1.
The Anti-SLAPP Statute
The anti-SLAPP statute states that a cause of action shall be subject to a special
motion to strike if (1) the cause of action arises from an act in furtherance of the
defendant’s constitutional right of petition or free speech in connection with a public
8
issue, and (2) the plaintiff is unable to establish a probability of prevailing on the merits
of the claim. (§ 425.16, subd. (b)(1).) The purpose of the statute is to encourage
participation in matters of public significance and prevent meritless litigation designed
to chill the exercise of First Amendment rights. (§ 425.16, subd. (a).) The Legislature
has declared that the statute must be “construed broadly” to that end. (Ibid.)
A defendant moving to strike a cause of action under the anti-SLAPP statute
must show that the cause of action “aris[es] 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” (§ 425.16, subd. (b)(1)). (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) If the defendant makes
that showing, the plaintiff must establish a probability of prevailing on the merits of the
claim in order to avoid dismissal. (§ 425.16, subd. (b)(1); Equilon, supra, at p. 63.) On
appeal, we independently determine whether the challenged cause of action arises from
the defendant’s exercise of the constitutional right of petition or free speech and
whether the plaintiff has demonstrated a probability of prevailing on the merits of the
claim. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055; ComputerXpress, Inc. v.
Jackson (2001) 93 Cal.App.4th 993, 999.)
To demonstrate a probability of prevailing on the merits, the plaintiff must show
that the complaint is legally sufficient and must present a prima facie showing of facts
that, if believed by the trier of fact, would support a judgment in the plaintiff’s favor.
(Taus v. Loftus (2007) 40 Cal.4th 683, 713-714; Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821.) The plaintiff’s showing of facts must consistent of
9
evidence that would be admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co.
(2004) 118 Cal.App.4th 204, 212.) The court cannot weigh the evidence, but must
determine whether the evidence is sufficient to support a judgment in the plaintiff’s
favor as a matter of law, as on a motion for summary judgment. (Wilson, supra, at
p. 821; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907; see Varian Medical Systems,
Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) If the plaintiff presents a sufficient prima
facie showing of facts, the moving defendant can defeat the plaintiff’s evidentiary
showing only if the defendant’s evidence establishes as a matter of law that the plaintiff
cannot prevail. (Wilson, supra, at p. 821.)
2.
The Complaint Arises From an Act in Furtherance of the Defendants’
Right of Free Speech
A cause of action “aris[es] from” protected activity within the meaning of
section 425.16, subdivision (b)(1) only if the defendant’s act underlying the cause of
action, and on which the cause of action is based, was an act in furtherance of the
defendant’s right of petition or free speech in connection with a public issue. (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78; ComputerXpress, Inc. v. Jackson, supra,
93 Cal.App.4th at p. 1001.) The defendants’ acts on which the counts alleged in the
complaint are based were the acts of entering Hall’s private room, interviewing her on
camera, and broadcasting the interview on national television. Those acts arose from
protected activity for purposes of the anti-SLAPP statute only if the acts were in
furtherance of the defendants’ right of petition or free speech in connection with a
public issue.
10
Section 425.16, subdivision (e) describes four categories of conduct that
constitute an “ ‘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’ ” within the
meaning of subdivision (b)(1): “(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.” (Id., subd. (e).)
A statement or other conduct is “in connection with an issue of public interest”
(§ 425.16, subd. (e), clause (3)) or “in connection with a public issue or an issue of
public interest” (id., clause (4)) if the statement or conduct concerns a topic of
widespread public interest and contributes in some manner to a public discussion of the
topic. (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) The public’s fascination
with Brando and widespread public interest in his personal life made Brando’s decisions
concerning the distribution of his assets a public issue or an issue of public interest.
Although Hall was a private person and may not have voluntarily sought publicity or to
comment publicly on Brando’s will, she nevertheless became involved in an issue of
public interest by virtue of being named in Brando’s will. The defendants’ television
11
broadcast contributed to the public discussion of the issue by identifying Hall as a
beneficiary and showing her on camera. We conclude that the acts from which the
complaint arises, specified ante, constituted conduct in furtherance of the defendants’
right of free speech “in connection with a public issue or an issue of public interest”
(§ 425.16, subd. (e), clause (4)).
The trial court concluded that the complaint did not arise from an act in
furtherance of the defendants’ right of petition or free speech and therefore did not
decide whether Hall had demonstrated a probability of prevailing on the merits of her
complaint or rule on the parties’ evidentiary objections. Rulings on the evidentiary
objections are necessary before the trial court or this court can determine whether Hall
has presented admissible evidence that demonstrates a probability of prevailing on the
merits of her claims. Rulings on evidentiary objections involve an exercise of
discretion, and it is the trial court’s responsibility to rule on the objections in the first
3
instance. (Cf. Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005)
133 Cal.App.4th 1197, 1217-1218 [summary judgment motion]; Sambrano v. City of
San Diego (2001) 94 Cal.App.4th 225, 235-236 [same]; but see Thomas v. Quintero
3
Just as we independently determine whether there is a triable issue of material
fact in reviewing the ruling on a summary judgment motion, but review a ruling on an
evidentiary objection in connection with a summary judgment motion for abuse of
discretion (Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457, 467), we
independently determine whether a cause of action arises from the defendant’s exercise
of the right of petition or free speech and whether the plaintiff has demonstrated a
probability of prevailing on the merits, but review a ruling on an evidentiary objection
in connection with a special motion to strike for abuse of discretion. (Morrow v.
Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1440, 1444.)
12
(2005) 126 Cal.App.4th 635, 656 [stated that because the ruling on a special motion to
strike is reviewed de novo, the reviewing court should rule on evidentiary objections in
the first instance in order to avoid further delay].) Although the trial court’s failure to
rule on the objections is understandable in light of its conclusion, the trial court on
remand must rule on the evidentiary objections and then decide whether Hall has
demonstrated a probability of prevailing on the merits of her claims. (Cf. Parkview
Villas Assn., supra, at pp. 1217-1218.)
3.
The Court Was Not Required to Deny the Motion Based on the Scheduling
of the Hearing
Hall contends the trial court was required to deny the special motion to strike
because the defendants failed to schedule a hearing on the motion for a date within
4
30 days after the service of the motion. We disagree.
Former section 425.16, subdivision (f) stated: “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.” (Stats. 1999, ch. 960, § 1, italics added.) Decker v. U.D. Registry, Inc. (2003)
105 Cal.App.4th 1382, 1387-1390 held that the statutory requirement of a timely
noticed hearing was mandatory and that the trial court must deny a special motion to
4
A respondent may request review of the appealed decision and any intermediate
ruling that involves the merits, necessarily affects the appealed order or judgment, or
substantially affects the rights of a party, for the purpose of determining whether the
appellant was prejudiced by the error asserted by the appellant. (§ 906.)
13
strike that was noticed for a hearing more than 30 days after service of the motion,
absent a showing that the court’s docket conditions necessitated the later hearing date.
Fair Political Practices Com. v. American Civil Rights Coalition, Inc. (2004)
121 Cal.App.4th 1171, 1174-1178, cited by Hall, followed the holding in Decker.
Greka Integrated, Inc. v. Lowrey (2005) 133 Cal.App.4th 1572, 1577-1578, also cited
by Hall, cited the rule from Decker and Fair Political Practices Com., but held that the
plaintiff waived the right to object to the late hearing date by expressly consenting to the
hearing date.
The Legislature amended section 425.16, subdivision (f) on October 5, 2005, as
an urgency statute effective immediately on that date. (Stats. 2005, ch. 535, §§ 1, 4.)
Subdivision (f), as amended, states: “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 scheduled by the clerk of the court for a hearing not
more than 30 days after the service of the motion unless the docket conditions of the
court require a later hearing.” (Italics added.) An uncodified section of the statute
states: “It is the intent of the Legislature, in amending subdivision (f) of Section 425.16
of the Code of Civil Procedure, to overrule the decisions in Decker v. U.D. Registry,
Inc. (2003) 105 Cal.App.4th 1382, 1387-1390, and Fair Political Practices Commission
14
5
v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, 1174-1178.”
(Stats. 2005, ch. 535, § 3.)
Thus, the Legislature expressly abrogated the rule on which Hall relies.
Section 425.16, subdivision (f), as amended, requires the court clerk to schedule a
special motion to strike for a hearing no more than 30 days after the motion is served if
such a hearing date is available on the court’s docket, but does not require the moving
party to ensure that the hearing is so scheduled and does not justify the denial of a
special motion to strike solely because the motion was not scheduled for a hearing
within 30 days after the motion was served. Accordingly, we cannot affirm the order on
that basis.
5
Greka Integrated, Inc. v. Lowrey, supra, 133 Cal.App.4th 1572 was filed on
November 15, 2005, after the 2005 amendments to section 425.16, subdivision (f)
became effective. Greka neither mentioned the statutory amendments nor explained
why the amendments did not apply in that action. In any event, Greka concluded that
the plaintiff waived any objection to the hearing date and therefore did not hold that the
trial court should have denied the special motion to strike.
15
DISPOSITION
The order is reversed with directions to the trial court to rule on the parties’
evidentiary objections, decide whether Hall has demonstrated a probability of prevailing
on each count alleged in her complaint, and enter a new order ruling on the special
motion to strike. The defendants are entitled to recover costs on appeal.
CERTIFIED FOR PUBLICATION
CROSKEY, Acting P. J.
WE CONCUR:
KITCHING, J.
ALDRICH, J.
16
