Opinion
B160983.
9-30-2003
TEODORO DECOUD, Plaintiff and Respondent, v. UNIVISION COMMUNICATIONS et al., Defendants and Appellants.
Davis Wright Tremaine, Gary L. Bostwick and Rochelle L. Wilcox for Defendants and Appellants. Wasserman, Comden, Casselman & Pearson, Mark S. Gottlieb, Alan I. Cyrlin and Steve K. Wasserman for Plaintiff and Respondent.
In this case, we must decide whether the trial court should have granted a television stations anti-SLAPP (strategic lawsuit against public participation) motion to strike Teodoro Decouds complaint. Decoud, a self-described spiritual healer, objected to the broadcast of his image simultaneously with a story on the potential harmful effects of believing in superstitions. We find that the only viable causes of action for this alleged misconduct are breach of contract and promissory estoppel. Decoud fails to present a prima facie case that he can prevail on the merits of the other causes of action he alleges. We shall affirm in part and reverse in part the trial courts order.
FACTUAL AND PROCEDURAL BACKGROUND
On January 22, 2002, Univision reported the following story: "and science proves that superstitions could take you even to your grave." After a break, the story continued as follows "This news is for those who are superstitious. In case you did not know, superstition — according to a study — could cause stress and even death. So, forget about witch doctors, the number thirteen and beautiful black cats—and also walking under a ladder." (The complete story is referred to as the Broadcast.) A witch doctor is a "medicine man or shaman among primitive peoples." (The American Heritage Dictionary (Houghton Mifflin Co. 1982) p. 1386.)
The original broadcasts were in Spanish. We rely on certified translations provided by Univision and also relied on by Decoud.
Decouds image was juxtaposed with the Broadcast. He was shown in a session with a client. A candle was placed on a table between Decoud and the client.
Univision later reported a clarification as follows:
"Last January 2nd we reported an item on the news regarding a scientific study according to which superstitions could be dangerous to health. During the report we showed stock footage of psychic Teodoro Decoud, during a session with a client. [¶] We would like to clearly state that the footage of Mr. Decoud was only an attempt to show a well-known psychic and the intention was never to imply that a session with him, or believing in the powers he claims to have, would cause anyone any harm. He did not participate in the study we reported on that night, so we hope that no viewer thought that the use of the footage of Mr. Decoud had negative implications regarding him, and clearly state that this was not our intention." Decouds image was shown as the text of the clarification was read.
Decoud sued Univision Communications Inc., Univision Network Limited Partnership, Univision Television Group, Inc. (collectively Univision), alleging causes of action for breach of contract, promissory estoppel, breach of implied covenant of good faith and fair dealing, slander, false light invasion of privacy, common law invasion of privacy, infringement of the right to publicity.
Decoud also sued additional defendants and asserted other causes of action, which are not at issue in this appeal.
According to the unverified complaint, Decoud is a spiritual healer. In 1994, he was approached by Univision to participate in a story about spiritual healers. Decoud agreed to participate only after Univision "agreed to air the interview only once as part of a positive two-day segment featuring the plaintiff." (Emphasis omitted.) Among other alleged promises, Univision agreed not to air the footage again and not to use the interview "to damage plaintiffs reputation or disparage plaintiff." Decoud also alleged that the "January 2, 2002 [Broadcast] falsely accuses plaintiff of practicing `witchcraft, of harming others, and leading people to their graves." Decoud alleged that the statements were made "with knowledge that each such statement was false and the statements were published with reckless disregard of their truthfulness."
Univision demurred to the complaint and filed an anti-SLAPP motion, arguing that the complaint should be stricken because Decoud had not shown a probability of prevailing on his causes of action.
Decoud opposed the motion to strike and included several declarations in support of his opposition. According to his declaration, Miguel Banojian worked for Univision/KMEX at the time the interview aired. According to Banojian, "After several days of negotiation, we agreed as follows: Mr. Decoud would grant KMEX/Univision a videotaped interview, as part of a special series, in exchange for granting the interview, KMEX/Univision would air the interview only once as part of a two day segment featuring Mr. Decoud. The feature would air in or about 1994. No part of the interview or video of Mr. Decoud would ever be aired or used again. KMEX/Univision would not utilize the footage for any other purpose or in any other manner and it will only air in the Los Angeles local market. Mr. Decoud and I came to a mutual understanding of a venture and objective reporting news services and that none of the footage of the interview would be used on stories related to `psychics. The footage of the interview (both the raw footage and the two-day television segment that was produced from the footage) would remain with KMEX/Univision (KMEX normal procedure) for safekeeping, but would not be used again. I vividly remember agreeing that the video would not be used again (after the initial two-day segment) for any other purpose, and that the video would not be used for stories related to psychics." (Emphasis omitted.)
According to Decouds declaration, "[f]or over 25 years, I have provided services as a spiritual healer. My profession is similar to members of the clergy, such as priests, ministers, Christian Science practitioners and rabbis, who comfort and administer to the ill." "I do not (and never have) practiced witchcraft. I do not use `black cats. I am not nor have I ever proclaimed to be a `witch doctor. In fact, I believe that practicing witchcraft is contrary to my religious beliefs." To his knowledge, Decoud "never caused anyone to become ill or die."
Decoud acknowledged that he appeared in the media but stated that "[w]hen I appear in public, I am not recognized. I have never injected myself into any controversy in order to influence the resolution of a particular issue. I have never run for or been elected to public office, or held a position in Government. Although I currently host a television show on a small television network, I obtained this position many months after the January 2, 2002 story was aired."
Decoud also described his agreement to participate in the 1994 interview in a manner consistent with his complaint and Banojians declaration. Sergio Nuzzolese, Decouds business manager, recollected an agreement consistent with that described by Banojian and Decoud.
The trial court denied the anti-SLAPP motion with respect to the claims and the Univision defendants. Univision timely appealed.
DISCUSSION
I. Requirements For A Special Motion To Strike
Code of Civil Procedure section 425.16, subdivision (b)(1) provides that any "cause of action against a person arising from any act of that person in furtherance of that persons right of . . . free speech . . . 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." "Section 425.16, subdivision (b)(1) requires the court to engage in a two- step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
All further undesignated statutory citations are to this code.
The first prerequisite is easily satisfied. All of Decouds causes of action arise out of the Broadcast, an exercise of Univisions right of free speech. The issue described in the Broadcast — the deleterious effects of being superstitious — constitutes a public issue, and Decoud does not contend otherwise. (DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567 [finding that statements made about medication to be in the public interest based on the number of people potentially affected and the seriousness of the potential effects]; Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 807-808 [finding that statements made in radio show regarding Who Wants to Be a Millionaire television program to be in the public interest].)
Decoud argues that he did not "bring the underlying lawsuit to keep Univision from exercising its constitutional rights." Decouds argument has no merit because it ignores our high courts holding that, in order to obtain a dismissal of a SLAPP lawsuit, a defendant is not required to "demonstrate that the action was brought with the intent to chill the defendants exercise of constitutional speech or petition rights[.]" (Equilon Enterprises, LLC v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 57.) Decouds subjective intent is irrelevant. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 74.)
Whether Decoud has a probability of prevailing — the second prong of an anti-SLAPP motion — requires review of each cause of action. We review de novo the trial courts determination of Decouds probability of prevailing. (1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) We consider both whether the claims are "legally sufficient" and whether the "admissible evidence, of facts . . . would merit a favorable judgment on those claims assuming plaintiffs evidence were accepted." (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 584.) We begin with Decouds defamation, false light and appropriation causes of action, all of which require a showing of malice, and then review his causes of action based on the alleged contract.
A. Slander, False Light, Common Law Appropriation, Infringement of the Right of Publicity, Civil Code section 3344
We first discuss Univisions argument that the Broadcast cannot reasonably be construed to make a defamatory statement about Decoud. In the second section, we explain why Decoud is a limited public figure and consider whether there is evidence Univision published the Broadcast with malice.
i. A Reasonable Viewer Could Conclude Univision Made a Provably False Assertion of Fact
"Slander is a false and unprivileged publication, orally uttered . . . ." (Civ. Code § 46.) Slander is a form of defamation, (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203), which to be actionable requires a provably false assertion. (Moyer v. Amador Valley J. Union High School Dist. (1990) 225 Cal.App.3d 720, 724.) Whether the statement contains a provably false assertion must be determined by applying a "totality of circumstances" test. (Ibid.) The alleged defamatory statement must "`"`reasonably [be] interpreted as stating actual facts about an individual. . . ."" (Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th at p. 809, quoting Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1401.) The statement must specifically refer to, or be "`of and concerning, the plaintiff in some way." (Blatty v. New York Times Co. (1986) 42 Cal.3d 1033, 1042.)
Here, when the Broadcast is considered together with Decouds juxtaposed image, a reasonable viewer could conclude that the Broadcast was of and concerning Decoud. (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275 [considering picture and text when assessing invasion of privacy claim].) Without a link between the text of the Broadcast and Decouds image, there would be no logical basis for juxtaposing the two. Univisions argument that the Broadcast "did not convey a defamatory statement about anyone," is unpersuasive because the clearly identifiable picture of Decoud shown simultaneously with the Broadcast implies, at a minimum, a connection between Decoud and the Broadcast.
The precise connection between the Broadcast and Decoud is more elusive, and is vigorously disputed. Decoud argues that the juxtaposition of his image with the Broadcast implied that he had injured people and could cause stress or death, a contention Univision describes as "ludicrous." In determining whether statements are defamatory "`"a court is to place itself in the situation of the hearer or reader, and determine the sense or meaning of the language of the complaint for libelous publication according to its natural and popular construction." That is to say, the publication is to be measured not so much by its effect when subjected to the critical analysis of a mind trained in the law, but by the natural and probable effect upon the mind of the average reader." (Morningstar Inc. v. Superior Court (1994) 23 Cal.App.4th 676, 687, quoting Edwards v. Hall (1991) 234 Cal.App.3d 886, 903, fn. 14.) The average reader "`is a reasonable member of the audience to which the material was originally addressed. [Citations.]" (Alszeh v. Home Box Office (1998) 67 Cal.App.4th 1456, 1459, quoting Couch v. San Juan Unified School Dist. (1995) 33 Cal.App.4th 1491, 1500.)
Although the link between Decoud and the story is not expressly stated, the Broadcast is capable of bearing the meaning ascribed to it by Decoud. Where a picture "ornaments an article . . . . there is an obvious innuendo that the article" applies to the person in the picture. (OHilderbrandt v. Columbia Broadcasting System (1974) 40 Cal.App.3d 323, 331 [discussing false light], quoting Prosser, Privacy (1960) 48 Cal. L.Rev. 383, 399.) Indeed, the very lack of any express link between Decoud and the Broadcast provides more room for reasonable interpretation, especially because, as Univision admits Decoud "did not participate in the study [it] reported on." Based on the placement of Decouds image with text warning that believing in superstitions can cause stress or death and the lack of an explicit basis for showing Decouds picture, an average viewer could conclude that the story implied Decoud could cause stress or death. (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 803 [court considers implication reasonably drawn from the communication].)
Whether the Broadcast was understood in this manner is a question for the trier of fact. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 647; Polygram Records, Inc. v. Superior Court (1985) 170 Cal.App.3d 543, 551.)
"The fact that an implied defamatory charge or insinuation leaves room for an innocent interpretation as well does not establish that the defamatory meaning does not appear from the language itself. The language used may give rise to conflicting inferences as to the meaning intended, but when it is addressed to the public at large, it is reasonable to assume that at least some of the readers will take it in its defamatory sense." (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549.) An average viewer also could conclude that the story was not a mere joke, as Univision contends, because the viewer is expressly told that the Broadcast is based on "science" and is the report of a "study." (See San Francisco Bay Guardian, Inc. v. Superior Court (1993) 17 Cal.App.4th 655, 659 [applying average reader test to determine if communication constituted a joke].)
Truth is a complete defense to defamation (Francis v. Dun & Bradstreet, Inc. (1992) 3 Cal.App.4th 535, 540), but is not applicable to the claim that Decoud could cause stress or death because Univision does not assert that this claim is true. Instead, Univision parses the language of the Broadcast and argues that the various parts of it are true. Reliance only on the factual underpinnings of the story is insufficient because, in addition to reporting the story, Univision displayed Decouds image. Where statements are capable of a defamatory meaning, we must consider "the truth of the statements in that sense in which the plaintiffs innuendo explains them." (Smith v. Maldonado, supra, 72 Cal.App.4th 637 at p. 646.) Univision neither asserts nor demonstrates that the statement that Decoud could cause stress or even death is true.
In his complaint, Decoud also alleged that the fact that he practices witchcraft was false. Decoud does not provide any evidence that the Broadcast described him as one who practices witchcraft. On appeal, Decoud states that "[t]he sole issue here regarding falsity is whether it is true or false that Decoud `could take you even to your grave or `cause stress and even death." Because Decoud does not argue that the implication from the Broadcast that he was a witch doctor is false, Univisions various uncertified definitions of witch doctor are not relevant, and for that reason we decline to take judicial notice of them. For the same reason, we also decline to take judicial notice of articles describing the work of curanderos.
ii. Decoud Is A Limited Public Figure And Is Required To Show Malice
The status of a plaintiff — as a public official, general purpose public figure, limited public figure, or private individual — becomes important in a defamation case. (Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 14-17.) Unless the plaintiff is a private individual, the plaintiff must prove by clear and convincing evidence that the defendant acted with actual malice —knowledge that the defamatory statement was false, or with reckless disregard of whether it was false or not. (Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256; Masson v. New Yorker Magazine, Inc. (1991) 501 U.S. 496, 510.) This heightened requirement balances the interest of the First Amendment in vigorous debate with the interest of an individual in his or her reputation. (Milkovich v. Lorain Journal Co., supra, 497 U.S. at pp. 13-17.) It applies not only to a defamation claim, but also to a false light invasion of privacy (Readers Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 265); common law appropriation (Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 676, intrusion into a right to publicity (ibid) and a cause of action under Civil Code § 3344. (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 426.)
As explained in KNB Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 367, fn. 5, Easwood has been superceded by statute on other grounds.
The parties dispute whether Decoud was a limited public figure at the time of the Broadcast. (Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d at p. 254 ["[T]he mere involvement of a person in a matter which the media deems to be of interest to the public does not, in and of itself, require that such a person become a public figure for the purpose of a subsequent libel action."].) A limited public figure is a person who has "either voluntarily injected [himself] into a particular public controversy, or who [has] been drawn into such controversies." (Denny v. Lawrence (1994) 22 Cal.App.4th 927, 934.) A private person who voluntarily injects himself into a particular public controversy becomes a public figure with respect to those issues. (Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 247.) "[W]hen called upon to make a determination of public figure status, courts should look for evidence of affirmative actions by which purported `public figures have thrust themselves into the forefront of particular public controversies." (Readers Digest Assosc. v. Superior Court, supra, 37 Cal.3d at pp. 254-255.)
Decouds own pleadings and declarations support the finding that he affirmatively placed himself at the center of the issue regarding the effects of spiritual healing. Most significantly, Decoud participated in a two-day television series about his services. Decoud explains that he "was approached by representatives of Univision/KMEX to provide a videotaped interview the television program, Notacias 34." Notacias 34 "is one of, if not the most, watched Spanish-speaking networks in Los Angeles." The interview was to be aired as part of "a positive two-day segment featuring [Decoud]." The interview was aired on television "and included information about many people who believed they got better as a result of [Decouds] services." The story "showed an individual [Decoud] that possessed special healing powers . . . ." According to the complaint Notacias 34 is watched by "tens of thousands of people . . . ."
Subsequently, Decoud also promoted his services through his website, created to help the viewer "understand a little about the powers that Teodoro Decoud applies to his patients to cure them . . . ." His website indicates that Decoud also appeared on Los Angeles Today, News 41, News 52, First Impact, Frontiers of the Mind, Good Day NY, Galaxy of Stars, It Happened Like This, Him and Her, Who is right Curanderos and Munerologia; and Who is right Doctors or Curanderos.
We grant Univisions request that we take judicial notice of the existence of Decouds website and the content of the translated portions of the website. (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 623, fn. 12.) The website indicates that it was copyrighted to Teodoro Decoud and Decoud refers to it without challenge.
This is not a case where Decoud was the victim of publicity he sought to avoid. In contrast to the plaintiff in Time, Inc v. Firestone (1976) 424 U.S. 448 who was involved in a divorce that received publicity and the plaintiff in Hutchinson v. Proxmire (1979) 443 U.S. 111, 135 who published articles only in academic journals reaching "a relatively small category of professionals concerned with research in human behavior," Decoud voluntarily and repeatedly appeared before the public on a variety of television shows.
The remaining question is whether Decoud has demonstrated evidence of actual malice sufficient to withstand his burden in opposing the anti-SLAPP motion. Actual malice requires evidence that the defendant acted with knowledge the defamatory statement was false or with reckless disregard of whether it was false or not. (Harte-Hanks Communications v. Connaughton (1989) 491 U.S. 657, 666.) "[T]he actual malice standard is not satisfied merely through a showing of ill will or `malice in the ordinary sense of the term." (Ibid.) "[T]here must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." (Readers Digest, supra, 37 Cal.3d at p. 256, quoting St. Amant v. Thompson (1968) 390 U.S. 727, 731.) "This tests directs attention to the `defendants attitude toward the truth or falsity of the material published . . . [not] the defendants attitude toward the plaintiff." (Readers Digest, supra, 37 Cal.3d at p. 257.)
Decouds entire argument that Univision acted with reckless disregard for the truth is as follows: "In the case at bar, it was reckless disregard for Univision to imply and insinuate that Decoud is being a `witch doctor and someone who `could cause stress and even death. In fact, Univision presumably knew that the accusations were false because seven years earlier Univision published a positive story about Decoud."
Decouds argument falls far short of the required showing. Putting aside any breach of contract issues, (which we discuss below), the publication of a positive story does not foreclose Univision from later publishing a negative story. There is simply no basis for Decouds statement that the publication of one favorable story on a topic renders all less favorable stories in reckless disregard for the truth. Indeed, the very argument conflicts with the principles of free and uninhibited discussion embodied in the First Amendment. (Milkovich v. Lorain Journal Co., supra, 497 U.S. 1, 10.) "Freedom of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which information is needed or appropriate to enable the members of society to cope with the exigencies of their period." (Thornhill v. State of Alabama (1940) 310 U.S. 88, 102.)
The only other possible evidence bearing on the issue of malice in the record is Decouds assertion that "Univision employs a `psychic named Walter Mercado who hosts a `psychic television show for Univision in Florida. . . If Univision felt it was necessary to include video footage of a `witch doctor or `psychic, it would have been more convenient for Univision to use a video of Mr. Mercado, who currently hosts a television show for Univision." However, even if we assume some ill motive in Univisions selection of Decouds image over that of Mercado, such ill motive is not equivalent to reckless disregard for the truth. (Masson v. New Yorker Magazine, Inc., supra, 501 U.S. 496, 510-511.)
Because Decoud has not shown malice, the trial court should have stricken Decouds causes of action for slander, false light, common law appropriation, and infringement of the right to publicity, and Civil Code section 3344. "[L]iability cannot be imposed on any theory for what has been determined to be a constitutionally protected publication." (Readers Digest Assosc., Inc. v. Superior Court, supra, 37 Cal.3d at p. 265.)
The court is not required to strike the entire complaint, but may strike those causes of action for which plaintiff does not meet the standard. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)
B. Decouds Causes of Action Based on Contract
We discuss separately Univisions argument that the trial court should have stricken Decouds cause of action for breach of contract and for breach of the implied covenant of good faith and fair dealing.
i. Breach of Contract
Univision argues that Decouds breach of contract cause of action must fail because the alleged contract was oral and the statute of frauds under 17 U.S.C. § 204, a statute within the federal Copyright Act bars enforcement of the alleged oral contract. Subdivision (a) of that statute provides: "A transfer of copyright ownership, other than by operation of law, is not valid unless an instrument of conveyance, or a note or memorandum of the transfer, is in writing and signed by the owner of the rights conveyed or such owners duly authorized agent." (17 U.S.C. § 204, subd. (a) (emphasis added.).)
If the Copyright Act applies to Decouds cause of action for breach of contract, the former would preempt the latter. (17 U.S.C. § 301, subd. (a); Kabehie v. Zoland (2002) 102 Cal.App.4th 513, 520.) The Copyright act applies to a cause of action for breach of contract where the two are equivalent. (Kabehie v. Zoland, supra, 102 Cal.App.4th at p. 521.) There is a split of authority concerning the appropriate test to determine when a breach of contract action is equivalent to a copyright infringement action. (Id. at p. 521) We need not resolve the split of authority in this case because the Copyright Act does not apply under any authority.
This case does not fall within the express language of the statute. Section 204 of the Copyright Act applies only to the transfer of copyright ownership. It is inapplicable here because there was no transfer of ownership. It is undisputed that Univision is the owner of the copyright of the 1993 video and that Univision never transferred the copyright to Decoud. Univision may have given up rights that it would otherwise be entitled to as the copyright owner (Bowers v. Baystate Technologies Inc. (Fed. Cir. 2003) 320 F.3d 1317, 1325-1326), but it has shown no transfer of the copyright. Because there was no transfer, the breach of contract cause of action does not fall within the statute of frauds in section 204 of the Copyright Act.
This case also does fall within the purpose of the statute — to "resolve disputes between copyright owners and transferees and to protect copyright holders from persons mistakenly or fraudulently claiming oral licenses or copyright ownership." (Imperial Residential Design v. Palms Development (11th Cir. 1995) 70 F.3d 96, 99.) Here, there is no claim of a mistaken or fraudulent claim of an oral license or copyright ownership.
Finally, Univisions argument lacks merit for an additional reason. The gravamen of Decouds breach of contract claim is that Univision improperly "used plaintiffs likeness in an unflattering story . . . ." A human likeness is not copyrightable. (KNB Enterprise v. Matthews, supra, 78 Cal.App.4th 362, 374.)
Decoud has provided enough evidence to show a probability of prevailing on his breach of contract cause of action. Decoud, Banojian, and Nuzzolese all described the alleged contract between Decoud and Univision, including a promise to refrain from using the video of Decoud after the 1994 segment on him. The display of Decouds image with the Broadcast at a minimum probably constitutes a breach of the alleged contract. Although Univision disputes the existence of the alleged contract, at this stage of the litigation, we must assume Decouds evidence would be accepted by the trier of fact. (1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 584.) Thus, the trial court correctly denied Univisions request to strike Decouds cause of action for breach of contract.
Univision makes no separate claim that the cause of action for promissory estoppel must be stricken.
ii. Breach of Implied Covenant of Good Faith and Fair Dealing
"[T]he implied covenant of good faith is read into contracts "in order to protect the express covenants or promises of the contract." (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc. (1992) 2 Cal.4th 342, 373.) Based on the implied covenant of good faith, Univision could not unfairly frustrate Decouds "right to receive the benefits of the agreement actually made." (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 349.) However, the implied covenant of good faith and fair dealing "cannot impose substantive duties or limits on the contracting parties beyond those incorporated in the specific terms of their agreement." (Id at pp. 349-350.)
Decoud alleges that the substantive terms of the contract were as follows:
"Univision agreed to air the interview only once as part of a positive two-day segment featuring the plaintiff. The feature would air in 1994. Univision further agreed that no part of the interview or video of plaintiff would ever be aired or used again. Univision further agreed that no one would utilize footage of the interview for any other purpose or in any other manner. Univision further agreed that it would not use the interview or videotape footage to damage plaintiffs reputation or disparage the plaintiff. Univision further agreed that none of the footage of the interview would be used on stories related to `psychics. Univision further agreed that the footage of the interview (both the raw footage and the two-day television segment that was produced from the footage) would remain with Univision for safekeeping in Univisions library, but would not be used again."
Decoud alleges Univision breached the implied covenant of good faith and fair dealing by:
(a) airing portions of the interview without plaintiffs consent,
(b) using excerpts from the video in a manner that caused plaintiff embarrassment and disparaged the plaintiff,
(c) failing to provide prior notice to the plaintiff that Univision would be re-using footage of the interview and thereby depriving plaintiff of an opportunity to object to the use;
(d) refusing to apologize or cooperate with the plaintiff after Univision improperly used portions of the footage on January 2, 2002;
(e) failing and refusing to cooperate with the plaintiff to formulate an appropriate retraction;
(f) failing to take appropriate steps to safeguard footage of the interview;
(g) failing to explain to the plaintiff why Univision chose to single out the video of the plaintiff from Univisions extensive video library to use in its sensationalistic and exploitive story on January 2, 2002;
(h) evading the spirit of the bargain which plaintiff made with Univision;
(i) conjuring up a false argument that plaintiff is a "public figure" in order to excuse defendants conduct;
(j) when it was confronted with its breach of the agreement, Univision had its attorney send a self-serving letter which denied that Univision had agreed seven years earlier that the videotape of plaintiff would be used only once and only as part of a positive piece on plaintiff."
Univision argues that all of the alleged breaches of the implied covenant of good faith and fair dealing either constitute a breach of express contractual covenants or exceed the terms of the contract. Decoud counters that the alleged claims "were necessary to carry out the terms of the contract."
Decouds unsupported statement is unpersuasive. For example, Decoud alleges that Univision breached the implied covenant of good faith and fair dealing by asserting that Decoud is a public figure. Univisions assertion that Decoud is a public figure (which we have already found to be accurate) was not conduct that frustrated Decouds rights to receive the benefits of the agreement. (See Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal.App.4th 301, 314.) The same analysis applies to Decouds other alleged breaches except subdivisions (a), (b), (f), and (h). Subdivisions (a), (b), and (f) are superfluous because the alleged breaches are also breaches of contract it is found to exist. (Guz v. Bechtel National, Inc., supra, 24 Cal.4th at p. 352.) Subdivision (h) fails to show that Univision engaged in conduct that injured Decouds right to receive the benefit of the bargain because it alleges no specific conduct. (See McMillin Scripps North Partnership v. Royal Ins. Co. (1993) 19 Cal.App.4th 1215, 1222.) The trial court should have stricken this cause of action.
C. UCI and UNLP
So far we have considered the Univision entities collectively. However, they argue that Univision Communications Inc. (UCI), a parent corporation, and Univision Network Limited Partnership (UNLP), a sister company, should be dismissed as parties to this lawsuit. Decoud argues that there is enough evidence to suggest that UCI and UNLP are alter egos of Univision Television Group, Inc. (UTG), that each participated in the wrongdoing, and that they are coconspirators.
The only evidence is from Banojians declaration and is as follows: "When I worked for KMEX/Univision, the company did not emphasize any distinction between Univision Communications Inc., Univision Television Network, or Univision Television Group (collectively "Univision"). Our goal was to increase the ratings and revenue for all the Univisions and we often performed our tasks for each company."
This evidence does not support any of Decouds theories. A showing of alter ego generally requires the existence of two essential elements: "(1) that there be such unity of interest and ownership that the separate personalities of the corporation and the individual no longer exist and (2) that, if the acts are treated as those of the corporation alone, an inequitable result will follow." (Automotriz etc. De California v. Resnick (1957) 47 Cal.2d 792, 796; Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 538.) Even assuming that Banojians declaration suggests the separate personalities of the corporations do not exist by stating that they were not emphasized, Decoud provides no evidence that an inequitable result will follow if the corporations are not treated as alter egos. Decoud also provides no evidence that UCI or UNLP directly made any promises to him, the only remaining viable causes of action. Nor does Decoud provide any evidence of a conspiracy among UTG, UCI, and UNLP.
Because there is no evidence that UCI or UNLP was either a direct participant, an alter ego of UTG, or a conspirator with UTG, the trial court should have dismissed these defendants. (See e.g. Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc., supra, Cal.4th 53.)
DISPOSITION
The order issued August 1, 2002 is affirmed in part and reversed in part. The trial court is directed to enter a new order dismissing all of Decouds causes of action except breach of contract and promissory estoppel and dismissing UCI and UNLP. Univision is entitled to costs on appeal.
We concur: RUBIN, J., BOLAND, J.