Opinion
CIVIL ACTION NO: 03-0556 SECTION: "D"(1)
March 10, 2004
MINUTE ENTRY
Before the court are the following motions:
(1) "Motion for Summary Judgement" filed by Defendants, Joseph R. Francis and Mantra Films, Inc.;
(2) "Motion for Summary Judgement" filed by Defendants, Calvin Broadus and Snoopadelic Pictures, Inc.; and
(3) "Motion in Limine" filed by Plaintiffs, Jamie Capdeboscq and Whitni Candiotto.
The motions, set for hearing on Wednesday, March 3, 2004, are before the court on briefs, without oral argument. Having reviewed the respective supporting and opposing memoranda of counsel and the applicable law, the court now rules.
I. Factual Background
In February 2002, at a Mardi Gras party hosted by Defendant Joseph R. Francis (the creator of the Girls Gone Wild video series), Plaintiffs Jaime Capdeboscq and Whitni Candiotto posed on either side of rap star, Defendant Calvin Broadus a/k/a Snoop Dog, lifting their "Snoop Dogg" T-shirts and exposing their breasts. This pose was captured on a photograph that ultimately ended up on the cover of the video/DVD entitled " Girls Gone Wild Doggy Style", which has been sold and/or distributed nation-wide.Plaintiffs claim that they voluntarily posed for the subject photograph after several verbal requests to do so and after being told that they would not appear on any Girls Gone Wild video. However, after posing, they were "paranoid" about ultimately winding up on a Girls Gone Wild video. (Candiotto Dep. at 68). Nevertheless, according to Plaintiff Candiotto, Defendant Francis repeatedly told her, before and after Plaintiffs flashed, that she "had nothing to worry about." ( Id. at 68-69). Plaintiff Candiotto also claims that, even after Mardi Gras was over, she spoke to Defendant Francis a few times by telephone, and he again reassured her that neither she nor Plaintiff Capdeboscq would appear in any Girls Gone Wild video. ( Id. at 84-85).
Because their images did appear on the cover of the "` Girls Gone Wild Doggy Style" video/DVD, Plaintiffs ultimately filed this lawsuit against Francis, his film company (Mantra Films, Inc.), Broadus and his company (Snoopadelic Pictures, Inc.), alleging that the following list on non-exclusive acts of Defendants caused Plaintiffs damages:
Plaintiffs added Snoopadelic Pictures, Inc. as a Defendant in their Fourth Supplemental and Amending Petition, Doc. No. 77.
a. failing to observe the age of plaintiffs;
b. failing to abide by the State of Louisiana Criminal Code;
c. failing to take proper precautions to avoid the incident;
d. operating a business in an improper or imprudent manner;
e. providing minors alcohol and illegal narcotics;
f. pressuring plaintiffs to disrobe against their will;
g. using the likeness of the plaintiffs without their consent and without just compensation after promise that not pictures of the plaintiffs would appear in the video or any other public arena;
h. sexually harassing the plaintiffs;
i. invading the privacy of the plaintiffs pictured on the cover of the video;
j. unjustly enriching one's self at the expense of the plaintiffs; and
k. any and all other torts to be shown at Trial.
( See Original Petition filed in state court and removed to this court, ¶ IX (a-k).
Over Defendants' objection, Plaintiffs were allowed to file their Second Supplemental and Amending Petition to add a claim that Defendants Francis and Broadus "made intentionally false and misleading statements and assurances to the plaintiffs . . . that they would not appear in connection with any video to be produced, marketed or distributed by [defendants]" and that "plaintiffs relied to their detriment on the intentionally false and fraudulent promises made by the defendants." (See Doc. No. 35, Second Supplemental and Amending Petition at ¶ IX (1).
However, Plaintiffs were not allowed to add a civil RICO claim or a state-law claim for punitive damages for "criminal sexual activity occurring during childhood." ( See Magistrate Judge's ruling, Doc, No. 38).
II. Legal Analysis (A) "Motion for Summary Judgement" filed by Defendants, Joseph R. Francis and Mantra Films, Inc.
Defendants Francis and Mantra Films argue that "even if the plaintiffs' version of the facts are taken as true, their claims must fail." (Defendants' Memo, at p. 1 n. 1). However, the court finds that despite this argument, certain facts (concerning certain claims) that are material to their motion are contested, and viewing the evidence in the light most favorable to Plaintiffs, the court must deny Defendants' motion in part.
With regard to Plaintiffs' invasion of privacy claim, these Defendants argue that the Plaintiffs' conduct precludes their assertion of the right to privacy. However, the subject photograph was not taken on Bourbon Street, but at a "party" on the second floor of a Bourbon Street bar, and the court finds that, while it is a close call, there is a genuine issue of material as to whether this party was "public" rather than "private". Thus, the jury will have to decide whether or not in the context of the Girls Gone Wild party, the Plaintiffs had a reasonable expectation of privacy when they exposed their breasts, and if so whether or not Defendants invaded that right.
"[N]o right to privacy attaches to material in the public view." Stern v. Doe, 806 So.2d 98, 102 (La.App. 4th Cir. 2001) (emphasis added).
In Louisiana, the right of privacy may be invaded in four distinct ways: (1) by appropriating an individual's name or likeness; (2) by unreasonably intruding on a person's physical solitude or seclusion; (3) by publicity that places a person in a false light before the public; and (4) by unreasonable disclosure of embarrassing private facts. Jaubert v. Crowley Post-Signal, Inc., 375 So.2d 1386, 1388 (La. 1979).
When a person has a right to privacy, other members of society have a corresponding duty not to violate that right. A violation constitutes a breach of duty and may be actionable under LSA-Civil Code Article 2315. Id. at 1388-89. However, when no such right to privacy exists, a person's conduct may be the cause of another's embarrassment, discomfiture, or monetary loss, but it will not constitute a "legal cause," because no duty has been breached. Id. Further, even if one has a right to privacy, that right may be lost by express or implied waiver or consent, or a course of conduct that prevents its assertion. Moore v. Cabaniss, 699 So.2d 1143, 1147 (La.App. 2nd Cir. 1997).
Contrast Easter Seal Soc. v. Playboy Enterprises. Inc., 530 So.2d 643, 647 (La.App. 4th Cir. 1988) (plaintiffs were video-taped as participants in a staged Mardi Gras parade on Bourbon Street and there was no indication that any plaintiff placed any restriction on the use of the video-tape); Lane v. MRA Holdings, LLC, 242 F. Supp.2d 1205 (M.D.F1. 2002) (plaintiff exposed herself on a public street while several pedestrians were in the general vicinity); Gritzke v. MRA Holding, LLC, 2002 WL 32107540 *n. 2 (N.D.Fl. 2002) (court noting that while the Louisiana Supreme Court has said that no right of privacy attaches to material in the public view, this is hardly a statement that a commercial vendor may use an unconsenting person as its poster-person, prominently displayed in advertisement or depicted in a false light, just because the individual was initially photographed in public).
An actionable invasion of privacy occurs only when the defendant's conduct is unreasonable and seriously interferes with the plaintiff's privacy interests. The reasonableness of conduct allegedly constituting an actionable invasion of privacy is determined by balancing the conflicting interests at stake, that is, plaintiffs interest in protecting her privacy from serious invasion and the defendant's interest in pursuing his course of conduct. Jaubert, 375 So.2d at 1389.
Next, with regard to Plaintiffs' unjust enrichment claim, these Defendants argue that Plaintiffs cannot establish any of the elements of this cause of action. Defendants specifically argue that there is no evidence that they were enriched, and no evidence that Plaintiffs were impoverished. In opposition, Plaintiffs argue that:
The elements of an unjust enrichment claim: (1) there must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and the impoverishment; (3) there must be an absence of "justification" or "cause" for the enrichment or the impoverishment; and (5) there must be no other remedy available to the plaintiff. Carriere v. Bank of Louisiana, 702 So.2d 648, 671 (La. 1996).
This remedy has been codified in Louisiana Civil Code Article 2298 which provides:
A person who has been enriched without cause at the expense of another person is bound to compensate that person. . . . The remedy declared here is subsidiary and shall not be available if the law provides another remedy for the impoverishment or declares a contrary rule.
The amount of compensation due is measured by the extent to which one has been enriched or the other has been impoverished, whichever is less.
The extent of the enrichment or impoverishment is measured at the time the suit is brought or, according to the circumstances, as of the time the judgment is rendered.
the defendants were definitely enriched by the amount paid to Mr. Broadus as compensation for his appearance in the subject video and Mr. Francis' ability to profit from the sales of the subject video. The plaintiffs were impoverished by the appropriation of their image for a cover used for advertising without just compensation. The impoverishment is directly related to the enrichment evidence by the defendants' profit without payment.
(Opp. at 12).
However, without addressing the question of whether or not Plaintiffs were "impoverished" by not being compensated, the court finds that Plaintiffs cite no evidentiary basis to support their contention that "defendants were definitely enriched." Accordingly, Plaintiffs cannot defeat Defendants' Motion for Summary Judgement on Plaintiffs' unjust enrichment claim.
In their reply memorandum, Defendants Francis and Mantra claim that there is no evidence that they were enriched and state that "in fact, discovery has established that Mantra lost money on this particular video." (Reply at 1-2). What "discovery" is unclear to the court.
Finally, with regard to Plaintiffs' "fraud" claim, Defendants concede that Defendant Francis' alleged promise to Plaintiffs that they would not be on a video is "hotly contested and is an issue of fact," but Defendants nevertheless argue that it is not material to their motion, because Plaintiffs cannot meet their burden of showing that they "reasonably or justifiably" relied on this alleged promise. However, based on the facts and circumstances developed in this record, the court concludes that whether or not Plaintiffs reasonably or justifiably relied on such a promise must be determined by the jury.
The elements of a delictual fraud claim, pursuant to LSA-Civil Code Article 2315, are: (1) a misrepresentation of a material fact, (2) made with the intent to deceive, and (3) causing justifiable reliance with resultant injury. Guidry v. United States Tobacco, 188 F.3d 619, 627 (5th Cir. 1999); Newport Ltd. v. Sears, Roebuck Co., 6 F.3d 1058, 1068 (5th Cir. 1993).
Defendants also argue that Plaintiffs only allege unfulfilled promises as to future events, i.e., the alleged promises not to include them on the video. And thus, Defendants further argue that Plaintiffs' fraud claim must fail, because a cause of action for delictual fraud only exists for misrepresentation of past or present facts, and that "unfulfilled promises or statements as to future events" cannot be a basis for a fraud action. (Defendants' Memo, at 14, citing America's Favorite Chicken Co. v. Cajun Enterprises, Inc., 130 F.3d 180, 186 (5th Cir. 1997), quoting Watermeier v. Mansueto, 562 So.2d 920, 923 (La.App. 5th Cir. 1990)).
Delictual fraud is also referred to as "intentional fraudulent misrepresentation" or "intentional misrepresentation." See e.g., Watermeier v. Mansueto, 562 So.2d 920, 923 (La.App. 5th Cir. 1990); Guidry v. United States Tobacco, 188 F.3d 619, 627 (5th Cir. 1999).
However, while the court has some reservation to apply the jurisprudential rule "that fraud must relate to a past or present fact, and cannot be predicated on unfulfilled promises or statement as to future events" to the facts and circumstances of this case, the court nevertheless finds that (contrary to Defendants' argument) Plaintiffs do allege that Defendant Francis assured them by phone after the photograph was taken that they would not be on the video. (Candiotto Dep. at 84-85). Whether or not this assurance was made after the footage taken at Mardi Gras 2002, was developed and turned into the video will have to be determined at Trial.
At the Pre-Trial Conference, counsel should be prepared to discuss whether or not this jurisprudential rule applies to a fraud claim brought under LSA-Civil Code Article 1953 (when there is a contract between the parties) and/or to a delictual fraud claim (which is the type of fraud claim brought by the Plaintiffs in this case). Further, counsel should be prepared to discuss whether or not Plaintiffs' misrepresentation claim includes a negligent misrepresentation claim, in addition to a delictual fraud claim. See fn. 15, infra, discussing the elements of these two types of claims.
Accordingly;
IT IS ORDERED that the "Motion for Summary Judgement" filed by Defendants, Joseph R. Francis and Mantra Films, Inc., be and is hereby GRANTED only as to Plaintiffs' claim for unjust enrichment (which is now DISMISSED against Defendants Francis and Mantra);
IT IS FURTHER ORDERED that the "Motion for Summary Judgement" filed by Defendants, Joseph R. Francis and Mantra Films, Inc., be and is hereby DENIED as to all other claims (which remain viable).
(B) "Motion for Summary Judgement" filed by Defendants, Calvin Broadus and Snoopadelic Pictures, Inc.
With regard to Plaintiff's invasion of privacy claim, Defendant Broadus and Snoopadelic argue (like Defendants Francis and Mantra argued) that there was nothing private about what Plaintiffs did in partially undressing and posing with the rap star before a crowd of 20-40 strangers at a rowdy Mardi Gras party in the French Quarter. As the court previously concluded, while it is a close call at this summary judgment juncture, the issue of whether the party was "private" or "public" will have to be decided by the jury.
However, Defendants Broadus and Snoopadelic also maintain that there is no factual support for the argument that by merely posing for a photo with Plaintiffs, that Broadus acted unreasonably, invaded the Plaintiffs' privacy interests, or caused the Plaintiffs' alleged injuries. In opposition to this argument, Plaintiffs argue that "Mr. Broadus may have had some editorial or directorial control over the material used on the cover of and in the subject video" and "Mr. Broadus apparently benefitted from usage of the footage shot for the subject video by offering it to those who purchased his album "Welcome To Tha House Volume 1." (Plaintiffs' Opp. at 11) (italics added). Such an argument (filled with conjecture and speculation) simply does not create a genuine issue of material fact regarding whether invaded the Plaintiffs' privacy interests, and Defendants Broadus' and thus Snoopadelic's motion must be granted dismissing Plaintiffs' claim of invasion of privacy.
These Defendants next argue that the Plaintiffs have no misrepresentation claim (whether or intentional or negligent) against them because Broadus made no representation to either Plaintiff about the creation of any Girls Gone Wild video or what photographs would or would not be used in any future video. But at some point before the flashing incident at the party, Broadus allegedly told Plaintiff Candiotto something like "you don't have anything to worry about; it's no big deal, basically." (Candiotto Dep. at 88-89, 98, 113). And she further testified that he said this "probably trying to convince us to [flash]". ( Id. at 88). Whether or not Broadus' statement is a misrepresentation, and whether or not Plaintiffs could or did reasonably rely on such a statement to believe that they would not appear in a Girls Gone Wild video (when such a statement was made at a Girls Gone Wild party), are close calls for summary judgment purposes, but they will have to be decided by the jury.
As previously noted, under Louisiana law, there are three elements of a delictual fraud or intentional misrepresentation claim: (1) a misrepresentation of a material fact; (2) made with the intent to deceive; and (3) causing justifiable reliance with resulting injury. Guidry v. United States Tobacco, 188 F.3d 619, 626 (5th Cir. 1999).
The elements of a negligent misrepresentation claim are: (1) a legal duty on the part of defendant to supply correct information; (2) a breach of that duty; and (3) damages to the plaintiff as a result of her justifiable reliance on the misrepresentation. Brown v. Forest Oil Corp., 29 F.3d 966, 969 (5th Cir. 1994).
As previously discussed, the jury will also have to decide whether this party was "private" or "public".
Finally, these Defendants argue that Plaintiffs' miscellaneous claims lack merit. Defendants group into this miscellaneous category Plaintiffs' claims for offering a minor intoxicants and failing to abide by the Criminal Code, sexual harassment and "pressuring" them to disrobe, and unjust enrichment. Based on the record before the court, the court finds that there are genuine issues of material fact precluding summary judgment on all of these claims (except the claim for unjust enrichment). At Trial, the jury will be instructed to treat these claims as general negligence claims. Berg v. Zummo, 786 So.2d 708, 714 (La. 2001) (claims that Defendants offered minor Plaintiff alcohol must be analyzed under general negligence principles, applying the traditional duty/risk analysis); Roberson v. August, 820 So.2d 620, 623 (La.App. 4th Cir. 2002) (claims for sexual harassment also fall under Louisiana's general tort law).
The court notes that a violation of a criminal statute does not, in itself, create civil liability. Panzico. v. Price, 647 So.2d 1154, 1158 (La.App. 2nd Cir. 1994). To constitute actionable negligence, the violation must be encompassed within the scope of the risks that the statute was designed to protect against, and the violation must be a cause-in-fact of the incident Id.
With regard to Plaintiffs claim for unjust enrichment against Defendants Broadus and Snoopadelic, Defendants argue that this claim must fail because there is no evidence that the Plaintiffs were economically impoverished by the use of the subject photograph, and there is also no evidence that Broadus or Snoopadelic was enriched by the use of the photograph. And Defendants argue that Plaintiffs have a tort remedy if their allegation are true. For the same reasons given above for granting the Motion for Summary Judgement filed by Defendants Francis and Mantra, the court finds that Defendants Broadus and Snoopadelic are also entitled to summary judgment on Plaintiffs' unjust enrichment claim. ( See pp. 6-7, supra).
Accordingly;
IT IS ORDERED that the "Motion for Summary Judgement" filed by Defendants, Calvin Broadus and Snoopadelic Pictures, Inc., be and is hereby GRANTED as to Plaintiffs' claims for invasion of privacy and unjust enrichment (which are now DISMISSED against Defendants Broadus and Snoopadelic);
IT IS FURTHER ORDERED that the "Motion for Summary Judgment" filed by Defendants, Calvin Broadus and Snoopadelic Pictures, Inc., be and is hereby DENIED as to all other claims (which remain viable).
(C) "Motion in Limine" filed by Plaintiffs. Jamie Capdeboscq and Whitni Candiotto
In this motion, the Plaintiffs seek an order from this court to exclude from Trial (1) evidence of the Plaintiffs' use of fake identification and (2) evidence of other flashes by Plaintiffs. Plaintiffs also seek an order disallowing Defendant Francis from testifying at Trial.
The court finds that evidence of the Plaintiffs' use of fake identification is not relevant, and even if relevant, the probative value of such evidence is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or waste of time. Thus, the court GRANTS Plaintiffs' motion seeking exclusion of evidence of the Plaintiffs' use of fake identification.
Next, the court finds that evidence of other flashes by Plaintiffs is relevant to the defense of Plaintiffs' invasion of privacy claim and the probative value of such evidence is not substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury or waste of time. Thus, the court DENIES Plaintiffs' motion seeking exclusion of evidence of other flashes by Plaintiffs.
Finally, the court DENIES Plaintiffs' motion seeking an order precluding Defendant Francis from testifying at Trial. Plaintiffs have pointed to no instance where Defendant Francis has asserted his Fifth Amendment privilege, with the court overruling that assertion and directing him to respond, and he thereafter refusing to do so.