Opinion
D070266
04-28-2017
P.S., Plaintiff and Appellant, v. SCRIPPS MEDIA, INC., et al., Defendants and Respondents.
Law Office of Mitchel J. Olson and Mitchel J. Olson for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Guylyn R. Cummins and Valerie E. Alter for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2015-00025602-CU-NP-CTL) APPEAL from an order of the Superior Court of San Diego County, Richard Strauss, Judge. Affirmed in part and reversed in part. Law Office of Mitchel J. Olson and Mitchel J. Olson for Plaintiff and Appellant. Sheppard, Mullin, Richter & Hampton, Guylyn R. Cummins and Valerie E. Alter for Defendants and Respondents.
Allison Ash was a news reporter for a local television news program (10News). Ash sought and obtained the permission of plaintiff P.S. to come to P.S.'s apartment to conduct a taped interview of P.S. for a segment to be broadcast on 10News concerning an investigation into allegations of wide-spread sexual abuse of patients by a local doctor. Ash assured P.S. the segment, when broadcast, would safeguard P.S.'s privacy and anonymity. Although the interview segment as broadcast complied with Ash's assurances to protect her anonymity, by using only P.S.'s first name and by using "tiling" to obscure her face from recognition when P.S. was speaking to Ash, a lead-in promoting the upcoming segment included a video clip in which P.S.'s face was not "tiled" but instead made her readily recognizable.
P.S. filed an action alleging multiple causes of action against Ash and the owner of 10News (together, defendants). Defendants moved to dismiss the complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) The trial court granted the motion as to eight of the nine pleaded causes of action, and this appeal challenges the order only insofar as it granted the motion striking P.S.'s causes of action for fraud (1st cause of action), for intentional and negligent infliction of emotional distress (6th & 7th causes of action), for invasion of privacy (8th cause of action) and for intrusion into private affairs (9th cause of action).
The complaint alleged, on information and belief, that the "E.W. Scripps Company" owned and operated the station and 10News, apparently based on the E.W. Scripps Company's website that represented it was the owner of the 10News station. However, the answer to P.S.'s complaint (as well as the anti-SLAPP motion) was filed by "SCRIPPS MEDIA, INC., erroneously sued as THE E.W. SCRIPPS COMPANY," because Scripps Media, Inc., appears to be the corporate entity licensed to operate the station. Because the formal corporate ownership of 10News is not germane to our analysis of the issues properly before us, we examine the parties' appellate arguments as though P.S.'s complaint was filed against (or could have been amended to name) the proper owner of 10News.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
I
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Facts
P.S. was a patient of Dr. Jeffrey Abrams, who was under criminal investigation for allegedly sexually assaulting multiple patient-victims. Abrams had inappropriately touched P.S. and taken photographs of her with his cell phone. However, P.S. had been "too ashamed" to report this conduct to anyone.
A friend of P.S.'s saw a 10News news story about the investigation surrounding Abrams and called 10News to ask about it and to indicate a friend of his had been assaulted by Abrams. Ash subsequently spoke with P.S.'s friend and asked if P.S. would be willing to be interviewed on-camera, and the caller said he would ask. That same day, P.S. called the station and spoke with Ash, who in turn asked P.S. if she would be willing to be interviewed on-camera about her sexual assault. Ash told P.S. her identity would be protected. P.S. agreed to the interview and invited Ash and her cameraman, Mike Howder, to her apartment to conduct the on-camera interview.
Later that day, Ash interviewed P.S. at her apartment on-camera with her consent. Before beginning the interview, Ash reiterated that it was 10News's policy not to identify sexual assault victims and they would protect her identity, and Ash suggested they use only P.S.'s first name because no one could identify her from her first name alone. The cramped conditions of the apartment, together with lighting conditions, prevented filming in "silhouette style." They therefore asked if they could blur her face when the story aired, and P.S. agreed. P.S. then sat in a chair and did the on-camera interview, which took about 30 minutes.
Ash and Howder then returned to the studio to edit the story. After editing the story, Ash and Howder reviewed the finalized segment (the segment) to assure themselves that only P.S.'s first name was used and that her face had been blurred. Ash then met with her executive producer (Lewis) to make sure Lewis knew the segment involved a sexual assault victim, and that Ash had blurred the face and used only P.S.'s first name, and Lewis sent out an e-mail reminding the news team not to show the face of the victim in Ash's story.
The segment thereafter aired on the 5:00 p.m. news broadcast that evening. Although the segment itself used only P.S.'s first name and used "tiling" to blur her face, a "teaser" was broadcast just prior to a commercial break that briefly previewed the stories to be broadcast in the upcoming news show. In this teaser, footage showing a side-angle of P.S.'s face was shown for about three seconds, without blurring, as a voice-over previewed the upcoming segments. Ash saw the teaser air as she was set to appear live on the news set to introduce the segment. Ash was shocked to see P.S.'s face broadcast and was very upset. As soon as Ash finished the on-air news story, she sought out Lewis to find out how the error had occurred. Ash learned from Lewis that Maxwell Gardiner had made the error in editing the news story teaser.
Gardiner confirmed he mistakenly pulled footage from the on-camera interview that included P.S.'s face and used several seconds of it in the teaser. Ash immediately called P.S. to tell her what had happened and to say how sorry she was for the mistake. P.S. did not sound angry but asked that it not happen again. Ash confirmed it would not happen again. 10News re-cut the teaser, and the teaser with the mistaken footage never aired again. B. The Lawsuit
P.S. filed this action against Ash and the purported owner of 10News alleging nine claims, including claims for intentional misrepresentation, for intentional and negligent infliction of emotional distress, for violation of Civil Code section 1708.8, and for "intrusion into private affairs." All of her claims stemmed from the failure to blur P.S.'s face during the teaser. C. The Anti-SLAPP Motion
P.S.'s action also alleged claims for negligent misrepresentation, for publication of private facts, and for "use" and "appropriation" of her likeness. Defendants' anti-SLAPP motion sought dismissal of the entire complaint but, in the alternative, challenged all of P.S.'s claims except the claim for "publication of private" facts. The motion was granted as to all claims except the claim for "publication of private" facts. However, on appeal, P.S. asserts error only as to the ruling striking her claims for intentional misrepresentation, for intentional and negligent infliction of emotional distress, for "intrusion," and for violation of Civil Code section 1708.8 (the appealed claims). Accordingly, we deem abandoned any claim of error as to the rulings on the remaining causes of action and only examine the rulings on the appealed claims.
Defendants moved under the anti-SLAPP statute to strike eight of the nine claims, arguing (1) the claims "arose from" protected activities, and (2) P.S. could not show probable success on the merits of these eight claims. P.S.'s opposition to the motion conceded defendants had shown the "arising from" prong, but asserted the motion should be denied because she satisfied her burden of showing facts sufficient to sustain a favorable judgment on each of her claims.
The court granted defendants' motion as to the appealed claims. On the intentional misrepresentation claim, the court concluded P.S. produced no evidence Ash did not intend to perform her promise to protect P.S.'s identity, which was fatal to her fraud claim. On P.S.'s claims for intentional and negligent infliction of emotional distress, the court found P.S. produced no evidence that the distress she suffered as a result of the actions of Ash or 10News was severe or serious, which was fatal to her emotional distress claims. On her claim under Civil Code section 1708.8 for invasion of privacy, the court concluded that because she consented to the entry into her apartment and to be filmed, that claim lacked probable success on the merits. Finally, on her claim for intrusion into private affairs, the court again concluded she consented to the entry into her apartment and to the interview, and therefore this claim lacked probable success on the merits.
II
APPLICABLE LAW
A. The Anti-SLAPP Statute
The anti-SLAPP law provides, in relevant part, that "[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 Constitution or the 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." (§ 425.16, subd. (b)(1).) The purpose of the statute is to encourage participation in matters of public significance by allowing a court to promptly dismiss unmeritorious actions or claims brought to chill another's valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. (Id., subd. (a).)
The anti-SLAPP law involves a two-step process for determining whether a claim is subject to being stricken. In the first step, the defendant bringing an anti-SLAPP motion must make a prima facie showing that the plaintiff's suit is subject to section 425.16 by showing that the plaintiff's claims arise from conduct by the defendant taken in furtherance of the defendant's constitutional rights of petition, or free speech in connection with a public issue, as defined by the statute. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) If the defendant does not demonstrate this initial "arising from" prong, the court should deny the anti-SLAPP motion and need not address the second step. (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 811.)
If the defendant does satisfy this first prong, the burden then shifts to the plaintiff to demonstrate there is a reasonable probability it will prevail on the merits at trial. (§ 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that his or her claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds by Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.; Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 358.) In making this assessment, the court does not weigh the evidence, but does consider both the legal sufficiency of and evidentiary support for the pleaded claims. (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37.)
On appeal, we review de novo the trial court's ruling on the motion to strike. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339.)
III
ANALYSIS
On appeal, defendants appear to assert that the court's order should be affirmed because all of P.S.'s claims were meritless, i.e., (1) P.S. had no evidence the named defendant (The E.W. Scripps Company) was the owner of 10News and (2) P.S. had no evidence Ash did anything wrong. Although defendants raised those arguments below in support of their argument that the entire complaint should be dismissed, the court's order did not grant that motion, and defendants did not cross-appeal from the order. Accordingly, we do not further consider those arguments in this proceeding. (See generally Kardly v. State Farm Mut. Auto. Ins. Co. (1995) 31 Cal.App.4th 1746, 1748, fn. 1.)
P.S. conceded below, and the court correctly found, defendants' showing was sufficient to satisfy the first prong. (See, e.g., Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 163-166 [news reporting and conduct associated with gathering news is conduct in furtherance of protected speech and satisfies first prong of anti-SLAPP statute].) Accordingly, we consider only whether the trial court correctly found P.S. did not satisfy her burden of showing probable success on the appealed claims. A. The Fraud Claim
P.S.'s first cause of action alleged defendants knowingly and intentionally falsely promised to not to reveal her identity if she consented to be interviewed, but when defendants made the promise it planned to broadcast her image without altering the video images. This cause of action asserts a claim for "promissory fraud," which requires evidence that Ash made " '[a] promise, made without any intention of performing it.' " (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1198.) A claim for fraud based on a false promise, which "consists of making a promise without the present intention to perform it, i.e., misrepresenting the speaker's then-present intentions" (Yield Dynamics, Inc. v. TEA Systems Corp. (2007) 154 Cal.App.4th 547, 575), requires evidence from which a jury could have found "that at the time defendants [made the promise], they lacked the intention to perform their undertakings." (Ibid.)
In the proceedings below, P.S. also appeared to argue her fraud claim encompassed a broader theory: Ash promised that she and her cameraman would take steps while filming that would guarantee her anonymity, such as using only "silhouette style" camera angles to guarantee no recognizable face shots were captured and thereby obviate any need for blurring, while negligently concealing from P.S. that such steps were not employed. However, this theory was inconsistent with her pleaded intentional fraud claim, as well as with the other allegations of her complaint (such as the allegation that Ash promised, "if defendants were to broadcast or otherwise publish any part of the interview, any videotaped images of plaintiff's face and likeness would be altered so that her face and likeness would be unrecognizable," and a plaintiff cannot contradict the factual allegations of a complaint in an effort to present triable issues. (See generally Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 222, fn. 3.) Moreover, this "theory" was not raised in her opening brief on appeal, and only surfaced for the first time in her reply brief, and we therefore do not further consider it. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764-765.)
Ash averred that, at the time she promised not to use P.S.'s full name and to blur her face, Ash intended and expected she and 10News would keep those promises. P.S. produced no evidence—other than the fact the "teaser" breached that promise—that Ash did not intend to keep those promises. Because mere breach of a promise is insufficient to establish promissory fraud (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Assn. (2013) 55 Cal.4th 1169, 1183 ["the intent element of promissory fraud entails more than proof of an unkept promise or mere failure of performance"]; accord, Yield Dynamics, Inc. v. TEA Sys. Corp., supra, 154 Cal.App.4th at p. 576 ["[m]ere nonperformance of a promise does not establish that the promise was fraudulent when made"]), P.S.'s showing was insufficient to show probable success on the merits of her promissory fraud claim.
P.S., citing Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951 (Engalla), asserts the trial court erred when it concluded P.S. was required to produce some evidence Ash had no intent to fulfill her promise to protect P.S.'s anonymity when she made that promise. P.S. argues that, under Engalla, false representations " 'made recklessly and without regard for their truth in order to induce action by another are the equivalent of misrepresentations knowingly and intentionally uttered' " (id. at p. 974), and therefore P.S. was not required to produce any evidence as to Ash's intent, but was only required to produce some evidence that Ash's promise to protect P.S.'s anonymity was made recklessly and without regard for its truth.
We reject P.S.'s assertion that Engalla has obviated the "intent" element of promissory fraud. First, the Engalla court reiterated that promissory fraud is a subspecies of fraud because " '[a] promise to do something necessarily implies the intention to perform; hence, where a promise is made without such intention, there is an implied misrepresentation of fact that may be actionable fraud' " (Engalla, supra, 15 Cal.4th at p. 973), and reiterated that intent to defraud is an element of a fraud claim. (Id. at p. 974.) Moreover, Engalla's discussion of "reckless disregard" has no application here. Engalla's discussion of "reckless disregard" was limited to its determination that, when the promissor there made the promise regarding the speed of its arbitration program (id. at p. 981), including that the "party" arbitrators would be appointed within 30 days after service of the claim and the "neutral" arbitrator would be appointed within 60 days after service of the claim (id. at p. 962), there was evidence the promissor either knew it would not comply with its own promise or was at least recklessly indifferent as to whether its agents would use reasonable diligence and good faith to comply with the promise because the evidence showed the promissor knew those time frames were almost always violated. (Engalla, supra, 15 Cal.4th at p. 975.) In contrast, P.S. introduced no evidence Ash and 10News almost always violated the promise to maintain a victim's anonymity. Because there was no evidence Ash made the promise to protect P.S. anonymity with "reckless indifference as to whether [defendants] would use reasonable diligence and good faith to comply with [the promise]" (id. at p. 974), Engalla's observations are irrelevant to whether P.S. showed a likelihood of success on her promissory fraud claim.
The Engalla court noted a 1989 study showed the 60-day time limit for arbitrator appointments was met in only 1 percent of the cases, with only 3 percent appointed within 180 days, and that on average the neutral arbitrator was appointed almost two years after the demand for arbitration. Engalla observed that "[r]egardless of when Kaiser became aware of these precise statistics, which were part of a 1989 study, the depositions of two of Kaiser's in-house attorneys demonstrate that Kaiser was aware soon after it began its arbitration program that its contractual deadlines were not being met, and that severe delay was endemic to the program. Kaiser nonetheless persisted in its contractual promises of expeditiousness." (Engalla, supra, 15 Cal.4th at p. 975.)
P.S. argues on appeal that an e-mail, sent after the accidental broadcasting of P.S.'s image and describing additional protective measures that should be employed, shows Ash acted with reckless indifference because Ash and her cameraman knew of but did not did not follow those steps. However, P.S. produced no evidence suggesting those steps were in place and known to Ash before Ash interviewed P.S. (rather than reflecting remedial measures designed to "plug the hole" in the safety net that the accidental broadcast of P.S.'s face had shown was a possible flaw in 10News's protocol), and therefore it has no relevance to P.S.'s claim that Ash acted with "reckless indifference" when she promised to safeguard P.S.'s anonymity.
We conclude the trial court correctly found that P.S. failed to show likely success on the merits of her intentional fraud claim. B. The Invasion of Privacy Claim
P.S. sought recovery for violation of Civil Code section 1708.8, which required P.S. to produce some evidence that defendants (1) entered her apartment without permission (or in a manner that would otherwise be a trespass) in a manner that is offensive to a reasonable person, and (2) entered to capture a visual image or recording of P.S. engaging in a private, personal, or familial activity. It is undisputed that P.S. invited Ash into her apartment to interview her, which is facially fatal to the "without permission" element of Civil Code section 1708.8. It is also undisputed P.S. consented to their entry for the purpose of allowing them to film an on-camera interview to be broadcast over the evening news, which is facially fatal to the "engaging in private activities" prongs of the statute.
Civil Code section 1708.8, subdivision (a) provides: "A person is liable for physical invasion of privacy when the person knowingly enters onto the land or into the airspace above the land of another person without permission or otherwise commits a trespass in order to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private, personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable person."
P.S. argues she nevertheless is entitled to recover under the statute because her "permission" for defendants to enter and film her was conditional on preserving her anonymity, and that permission was vitiated when the teaser was broadcast hours after Ash left her apartment. We reject this claim, because the statutory language requires either an entry without permission, or some other form of trespass. On appeal, P.S. cites nothing to suggest the statute is violated when the entry was under express permission. Instead, P.S. asserts there was a trespass because, after leaving the property, 10News used the footage in a manner inconsistent with Ash's promise. P.S. cites Civic Western Corp. v. Zila Industries, Inc. (1977) 66 Cal.App.3d 1 for this proposition, noting that court stated "a trespass may occur if the party, entering pursuant to a limited consent, i.e., limited as to purpose or place, proceeds to exceed those limits by divergent conduct on the land of another. 'A conditional or restricted consent to enter land creates a privilege to do so only in so far as the condition or restriction is complied with.' (Rest.2d Torts, 168.)" (Id. at p. 17.) However, as Civic Western make clear, the trespass occurs if the party entering, pursuant to a consent "limited as to purpose or place, proceeds to exceed those limits by divergent conduct on the land of another." (Ibid., italics added.) It is undisputed that no "divergent" conduct occurred on P.S.'s property, but instead occurred after Ash departed, which cannot support a trespass claim. (Cf. County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 314-315 [where property owners induced to consent to placing paint on property, trespass claim not viable even where paint contained lead and this fact was not disclosed by paint seller].)
P.S. appears to argue her consent was exceeded while Ash and her cameraman were still on her premises because Ash's promise to preserve P.S.'s anonymity encompassed a promise to make sure the images of her were "edit[ed] . . . to render them unrecognizable while still in the field," and the failure to do so exceeded her consent while they were still present. It does not appear this argument was raised below, and we will not consider it for the first time on appeal. (Martinez v. Scott Specialty Gases, Inc. (2000) 83 Cal.App.4th 1236, 1249.)
P.S.'s claim also fails because there was no likelihood of prevailing on her claim that she was filmed while "engaging in private, personal, or familial activity" within the meaning of Civil Code section 1708.8, subdivision (a). It is undisputed that P.S. was filmed while talking with Ash about her past experience for purposes of broadcasting her story to the larger public. Although P.S. contends that "speaking about being sexually abused in the confines of one's home" constitutes a personal and private activity, there is no evidence that conversation was intended for private consumption or to further personal relationships, but was instead designed for public consumption and for the very purpose of sharing it with the world, which is the antithesis of "private" activity. (Cf. Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1190 [private person becomes limited public figure by voluntarily thrusting self into the vortex of a public issue].) The only case cited by P.S., Virgil v. Time, Inc. (9th Circ. 1975) 527 F.2d 1122, is not to the contrary. Virgil, although not construing Civil Code section 1708.8, did consider whether a plaintiff had a claim for public disclosure of private facts when the plaintiff voluntarily gave an interview to the press but then revoked consent prior to publication. Virgil recognized that "[t]alking freely to someone is not in itself . . . making public the substance of the talk. There is an obvious and substantial difference between the disclosure of private facts to an individual . . . and the disclosure of the same facts to the public at large." (Virgil, at p. 1127.) However, Virgil (after recognizing that "[t]alking freely to a member of the press, knowing the listener to be a member of the press, is not then in itself making public" the disclosed facts) acknowledged that "[s]uch communication can be said to anticipate that what is said will be made public since making public is the function of the press, and accordingly such communication can be construed as a consent to publicize. Thus if publicity results it can be said to have been consented to." (Ibid.)
Here, P.S. consented to speak to Ash for the purpose of having defendants publicize her story, and to have defendants capture and broadcast some kind of image of that activity as part of that story. The fact defendants later made a mistake when they prepared the headline teaser does not convert a consensual filming designed for public consumption into a claim she was filmed while "engaging in a private, personal, or familial activity" within the meaning of Civil Code section 1708.8.
We conclude the trial court did not err when it concluded P.S. had not shown likely success on the merits of her Civil Code section 1708.8 claim. C. The "Intrusion" Claim
P.S.'s claim for "intrusion into private affairs" required her to produce some evidence that defendants intruded into a private place, conversation or matter, and did so in a manner highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.) This tort requires an unconsented-to intrusion, whether by physical or sensory intrusions (such as eavesdropping, wiretapping, or visual spying), into a place where the plaintiff has a legally recognized expectation of privacy. (Id. at pp. 230-231.) A plaintiff's intrusion claim fails when the plaintiff "manifested by his or her conduct a voluntary consent to the invasive actions of defendant." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 26.)
The trial court properly found P.S. had not shown likely success on the merits for the same reason it found against her on her claim for violation of Civil Code section 1708.8: P.S. consented to defendants' entry into and presence in her apartment and to the interview and filming of her. P.S. appears to argue the trial court erred by evaluating her claim on the assumption some form of trespass is a required element of a claim for intrusion. She asserts that, although trespass is a subset of actions that can support the tort of intrusion into private affairs, the tort was shown merely because defendants broadcast her face and identified her as a victim of sexual assault without her permission and thereby intruded on her solitude, seclusion and private affairs. She also appears to contend, citing Taus v. Loftus (2007) 40 Cal.4th 683 and Dietemann v. Time, Inc. (9th Circ. 1971) 449 F.2d 245, that there was some evidence to support her claim for intrusion because defendants gained entry to her apartment and obtained private information by false pretenses.
P.S. also asserts, somewhat confusingly, that the court "erred in finding that trespass is not a basis for an action for intrusion." However, the court only stated, when rejecting her apparent reliance on Civic Western Corp. v. Zila Industries, Inc., supra, 66 Cal.App.3d 1 (a trespass case addressing whether a trespass can occur when the defendant's conduct after entry exceeded the scope of the plaintiff's consent) in support of her intrusion claim, that "a trespass claim is not comparable to an intrusion of privacy claim." The court did not state a showing of trespass cannot support an intrusion claim.
We believe P.S.'s arguments are meritless because it confuses how defendants obtained the "private information" (of her likeness and victimization), which we apprehend to be the focus of the "intrusion" tort, with what defendants did with that information. In both Taus and Dietemann, the courts tested the viability of the "intrusion" tort by examining how the information was obtained, and concluded that the false pretenses employed to obtain the information arguably supported the claims for intrusion. (Taus v. Loftus, supra, 40 Cal.4th at pp. 727-741; Dietemann v. Time, Inc., supra, 449 F.2d at pp. 246-249.) Indeed, the tort was complete regardless of whether that information was ever disseminated. (Dietemann, at p. 247 ["[d]espite some variations in the description and the labels applied to the tort, there is agreement that publication is not a necessary element of the tort"]; accord, Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1484; see generally Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126 ["public disclosure tort" is distinct from tort of "intrusion upon plaintiff's solitude or into his or her private affairs"].) Although P.S.'s evidence of the only "wrongful" conduct (the broadcast of her likeness without blurring) may support a "public disclosure of private facts" claim, and indeed the anti-SLAPP motion did not challenge (nor did the court strike) the "publication of private facts" claim as pleaded in P.S.'s third cause of action, P.S. produced no evidence that how those facts were obtained was wrongful.
We conclude the trial court correctly found P.S. had not shown likely success on the merits as to her intrusion claim. D. The Emotional Distress Claims
P.S. pleaded claims for intentional infliction of emotional distress and negligent infliction of emotional distress, both of which were stricken by the court's anti-SLAPP order. Because we reach a conclusion on the former claim that is different from our conclusion as to the latter claim, we examine them serially.
Legal Framework
A cause of action for intentional infliction of emotional distress requires the plaintiff show (1) the defendant engaged in the requisite culpable conduct (i.e., "outrageous conduct") with the requisite culpable intent (i.e., intention to cause or reckless disregard of the probability of causing emotional distress), (2) the plaintiff suffered the requisite damage (severe emotional suffering), and (3) actual and proximate causation of the injury. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376 (Wong).) P.S.'s claim for negligently inflicted emotional distress, which is not an independent tort but is instead merely a cause of action for negligence (Barker v. Fox & Associates (2015) 240 Cal.App.4th 333, 356), involves proof of the traditional elements of duty, breach of duty, causation, and the requisite damages. (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)
The Intentional Infliction of Emotional Distress Claim
P.S. makes no claim Ash or 10News intended to inflict emotional distress on her. Instead, she asserts they acted "recklessly" because they failed to adhere to their own policy of protecting a victim's identity. Although the evidence shows defendants made a mistake, a mere mistake (or use of a procedure later determined to be flawed) is not sufficiently "extreme or outrageous" conduct to support a claim for intentional infliction of emotional distress. (See, e.g., Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209-210 [although officers' plan to protect victim may have been "poor . . . and doomed from the start," conduct did not "rise to the level of outrageous conduct 'so extreme as to exceed all bounds of that usually tolerated in a civilized community' "]; Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 936-937 [mistaken conduct based on good faith belief conduct was proper not sufficiently "extreme" or "outrageous" to sustain claim for emotional distress]; Fuentes v. Perez (1977) 66 Cal.App.3d 163, 165, 172 [failure to take protective measures, even after a warning, was not sufficiently extreme or outrageous to warrant damages for emotional distress].)
We conclude P.S. has produced no evidence supporting a claim of extreme or outrageous recklessness. (Fuentes v. Perez, supra, 66 Cal.App.3d 163, 172 [question of law for court in first instance to determine whether defendant's conduct may reasonably be regarded sufficiently extreme and outrageous as to permit recovery]; Barker v. Fox & Associates, supra, 240 Cal.App.4th at p. 356 ["complained-of conduct must be . . . beyond all bound of reasonable decency"].) As with P.S.'s fraud claim, there is no evidence defendants did not reasonably believe the promise to maintain her anonymity would be kept; to the contrary, the evidence showed Ash edited the segment and reviewed it to ensure P.S.'s face was blurred and, before broadcasting the segment, Ash met with her executive producer to reiterate that the story should use blurred images and P.S.'s first name only. Moreover, the executive producer sent a reminder e-mail before the segment aired, with the subject line stating "DO NOT SHOW," and the "importance" line labeled "High," which stated "DO NOT show the face of the victim in [Ash's] story."
We conclude, on this record, P.S. failed to produce sufficient evidence to show a likelihood of success on the merits as to the element of extreme or outrageous conduct by defendants, and therefore the order striking P.S.'s intentional infliction of emotional distress claim was proper.
The Negligence Claim
In the proceedings below, defendants did not contest P.S.'s evidence on the elements of duty, breach of duty, and causation (Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc., supra, 48 Cal.3d at p. 588) in support of her negligence claim. Instead, defendants asserted she lacked evidence of the final element: the requisite damages from the negligence.
A plaintiff may recover for negligent infliction of emotional distress, even when there is no separate physical injury caused by the negligence upon which emotional distress damages are "parasitic" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984-988 (Potter)), when the plaintiff has suffered that level of emotional distress the courts have variously described as "severe" (id. at p. 1004) or as "serious" (Thing v. La Chusa (1989) 48 Cal.3d 644, 668; Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 (Molien) [" 'serious mental distress may be found where a reasonable man, normally constituted, would be unable to adequately cope with the mental stress engendered by the circumstances of the case' "]). We agree with the court's observations in Wong, supra, 189 Cal.App.4th 1354 that, although divergent nomenclatures have been employed to describe the requisite level of distress that must be shown, the "articulation of 'serious emotional distress' is functionally the same as the articulation of 'severe emotional distress.' Indeed, given the meaning of both phrases, we can perceive no material distinction between them and can conceive of no reason why either would, or should, describe a greater or lesser degree of emotional distress than the other for purposes of establishing a tort claim seeking damages for such an injury." (Id. at p. 1378.)
"[T]he requisite emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry" (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 397), and because the " 'intensity and duration of the distress are factors to be considered in determining its severity[,]' . . . 'severe' means substantial or enduring as distinguished from trivial or transitory." (Ibid.; accord, Potter, supra, 6 Cal.4th at p. 1004 ["[s]evere emotional distress means ' "emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it" ' "].) " 'It is for the court to determine whether on the evidence severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed.' " (Fletcher, at p. 397.)
We conclude the court erred when it found that, as a matter of law, no jury could have found the distress suffered by P.S. as the result of defendants' alleged negligence was sufficiently severe or serious. The requisite level of emotional distress must include consideration of whether a reasonable person would be " 'unable to adequately cope with the mental stress engendered by the circumstances of the case.' " (Molien, supra, 27 Cal.3d at p. 928, italics added.) Here, P.S. felt shame and embarrassment by having been victimized by her doctor, and was willing to relate her story only after extracting assurances that her anonymity would be protected. When defendants accidentally broke that promise, she felt immediate "shock[]" from that revelation, and averred that, for months thereafter:
Indeed, the evidence would permit a jury to infer that such a reaction was not atypical. Ash averred that she took numerous steps to protect P.S.'s identity but, when Ash (while waiting to appear live on air to introduce the segment) saw the teaser, she was herself "shocked . . . and very upset." Moreover, immediately after finishing her on-air appearance, she immediately began searching out her executive producer and learned the executive producer had already begun investigating how such an error could have occurred and was looking for Ash. She also telephoned P.S. to express "how sorry" she was for the mistake, and that it "absolutely" would not happen again. This evidence could permit an inference that everyone involved was aware that the emotional trauma that could accompany such a disclosure was not merely "trivial or transitory." (Fletcher v. Western National Life Ins. Co., supra, 10 Cal.App.3d at p. 397.)
"I felt extremely anxious. I had trouble sleeping and would toss and turn while the image of me on the broadcast rolled around in my head. I left the house only when I had to and then only while wearing sunglasses and a hat. I stopped going to a gym because I was afraid someone there might have seen the Channel 10 broadcast of me. When I did go out and I thought someone was looking at me, I would turn my face the other way or duck my head down for fear of being recognized. To this day I still wear sunglasses and a hat to reduce the chance that someone will identify me as the person who was interviewed on Channel 10. This has been a very lonely experience, and it has contributed to me feeling depressed. It has also contributed to making me feel that it is difficult to trust people."
P.S.'s evidence, if credited, would permit a jury to find the distress she suffered was both "enduring" and "substantial" (Potter, supra, 6 Cal.4th at p. 1004 ["[s]evere emotional distress means ' "emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it" ' "]), because the most severe symptoms lasted for several months (and apparently continued to have repercussions through the date of the anti-SLAPP motion over a year after the broadcast), and caused her to develop sleeplessness and some degree of agoraphobia, caused depression, induced her to change her behavioral patterns to ensure she was not identified when in public, and exacerbated her trust issues. On this showing, a jury could find P.S. suffered the requisite degree of distress sufficient to support a recovery under her negligence claim. (See, e.g., Grenier v. Taylor (2015) 234 Cal.App.4th 471, 487 [adequate showing of emotional distress in opposition to anti-SLAPP motion where plaintiffs averred conduct caused them to not want to leave their residence and to consider moving away to re-establish anonymity]; Bikkina v. Mahadevan (2015) 241 Cal.App.4th 70, 88 [adequate showing of emotional distress in opposition to anti-SLAPP motion where plaintiff's averments included that he suffered insomnia].)
Defendants argue that, under Wong, supra, 189 Cal.App.4th 1354, and Hughes v. Pair (2009) 46 Cal.4th 1035 (Hughes), the level of anxiety suffered by P.S. here was inadequate. (See Wong, at p. 1377 [suggesting mere upset stomach, lost sleep and general anxiety is insufficient injury]; Hughes, at p. 1051 [assertions plaintiff suffered discomfort, worry, anxiety, upset stomach, concern, and agitation is insufficient injury].) We are unpersuaded by either of those cases, for two reasons. First, in both cases, the observations on the alleged inadequate degree of distress constituted dicta. Moreover, the courts there addressed misconduct in significantly different contexts (Molien, supra, 27 Cal.3d at p. 928 [court examines whether reasonable person would be " 'unable to adequately cope with the mental stress engendered by the circumstances of the case' "]), because the courts were not examining the publication of a sexual abuse victim's identity to millions of viewers, but instead dealt with, inter alia, a negative review of a businessperson in Wong (Wong, supra, 189 Cal.App.4th at p. 1359), and two private conversations in Hughes in which the court concluded the defendant's comments (although inappropriate) fell "far short" of conduct that could be deemed outrageous. (Hughes, supra, 46 Cal.4th at pp. 1040 & 1051.) Because both cases were decided in a different context, and involved dicta, we are unpersuaded they support the order striking P.S.'s seventh cause of action.
In Hughes, supra, 46 Cal.4th 1035, the court had found plaintiff had failed to show another essential element of a cause of action for intentional infliction of emotional distress, i.e., that defendant's inappropriate comments fell "far short" of conduct that could be deemed outrageous (id. at p. 1051), which rendered any discussion of any other failings of the claim unnecessary to the decision. In Wong, supra, 189 Cal.App.4th 1354, although the court dismissed her claims for intentional and negligent infliction of emotional distress, it noted that the claims were "redundant [and] added nothing of substance to her complaint," and further noted that because the plaintiff would be able to recover her emotional distress damages under other theories that did survive the anti-SLAPP motion, "[u]nder the circumstances . . . the dismissal of those claims amounts to a loss of nothing." (Wong, at p. 1379.) --------
We therefore conclude the court erred when it struck P.S.'s claim for negligent infliction of emotional distress.
DISPOSITION
The order striking plaintiff's seventh cause of action is reversed; in all other respects, the order is affirmed. Each party shall bear its own costs on appeal.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
O'ROURKE, J. /s/_________
AARON, J.