California law clearly provides that surviving family members have no right of privacy in the context of written media discussing, or pictorial media portraying, the life of a decedent. Any cause of action for invasion of privacy in that context belongs to the decedent and expires along with him or her. ( Flynn v. Higham (1983) 149 Cal.App.3d 677 [ 197 Cal.Rptr. 145] ( Flynn).) The publication of death images is another matter, however.
"1. Plaintiffs Brownie Miller and Marlene Belloni have no actionable claim for invasion of privacy, intentional infliction of emotional distress or negligent infliction of emotional distress based upon their alleged viewing of NBC broadcasts allegedly depicting their (now deceased) relative, Mr. Miller. Flynn v. Higham, 149 Cal.App.3d 677, 683 [ 197 Cal.Rptr. 145] (1983); Coverstone v. Davies, 38 Cal.2d 315 [ 239 P.2d 876] (1952); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59 [ 121 Cal.Rptr. 429] (1975); Grimes v. Carter, 241 Cal.App.2d 694, 702 [ 50 Cal.Rptr. 808, 19 A.L.R.3d 1310] (1966). "2.
y of nondefamation causes of action, including, abuse of process ( Thornton v. Rhoden (1966) 245 Cal.App.2d 80 [ 53 Cal.Rptr. 706, 23 A.L.R.3d 1152]; Twyford v. Twyford (1976) 63 Cal.App.3d 916 [ 134 Cal.Rptr. 145]; Younger v. Solomon (1974) 38 Cal.App.3d 289 [ 113 Cal.Rptr. 113]; Umansky v. Urquhart (1978) 84 Cal.App.3d 368 [ 148 Cal.Rptr. 547]); intentional infliction of mental distress ( Kachig v. Boothe (1971) 22 Cal.App.3d 626 [ 99 Cal.Rptr. 393]; Lerette v. DeanWitter Organization, Inc. (1976) 60 Cal.App.3d 573 [ 131 Cal.Rptr. 592]; Pettitt v. Levy (1972) 28 Cal.App.3d 484 [ 104 Cal.Rptr. 650]; Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277 [ 112 Cal.Rptr. 609]); inducing breach of contracts ( Agostini v. Strycula (1965) 231 Cal.App.2d 804 [ 42 Cal.Rptr. 314]; Scott v. McDonnell Douglas Corp.,supra); interference with prospective economic advantage ( Brody v. Montalbano (1978) 87 Cal.App.3d 725 [ 151 Cal.Rptr. 206]); fraud and negligence ( Pettitt v. Levy, supra). In Flynn v. Higham (1983) 149 Cal.App.3d 677 [ 197 Cal.Rptr. 145], the same Court of Appeal that decided the instant case considered whether a false publication concerning a deceased person, barred if brought as a libel action, would support a claim for intentional infliction of emotional distress. The court held that "to allow an independent cause of action for the intentional infliction of emotional distress, based on the same acts which would not support a defamation action, would allow plaintiffs to do indirectly what they could not do directly.
Appellants' reasoning is supported by the case law. The leading case comes from Division One of this district, Flynn v. Higham (1983) 149 Cal.App.3d 677. Defendant Higham wrote a biography about deceased actor Erroll Flynn, describing him as a homosexual and a Nazi spy. Flynn's children sued for defamation, intentional infliction of emotional distress and invasion of privacy.
Thus, Plaintiff's attempt to recover damages from Defendants based on the asserted acts or omissions of Defendants fails with Plaintiff's defamation claim. As mentioned above, Plaintiff argues that the facts giving rise to the negligence claim consist of far more than defamatory words. In support, she cites to the sole case of Flynn v. Higham, 149 Cal.App.3d 677, 682, 197 Cal.Rptr. 145 (1983), wherein the court did not allow an independent cause of action for intentional infliction of emotional distress based on the same acts which would not support a defamation action. The Flynn court, however, distinguished its case from another case wherein a court did allow an infliction of emotional distress claim even though it dismissed the slander claim.
Whatever the label, Dworkin cannot maintain a separate cause of action for mental and emotional distress where the gravamen is defamation. See Wilson v. Merrill Lynch, Pierce, Fenner Smith, Inc., 111 A.D.2d 807, 490 N.Y.S.2d 553, 555, aff'd, 66 N.Y.2d 988, 499 N.Y.S.2d 395, 489 N.E.2d 1297 (1985); Fisher, 402 N YS.2d at 992, 373 N.E.2d at 1217; Flynn v. Higham, 149 Cal.App.3d 677, 681-82, 197 Cal.Rptr. 145 (1983). See also Silvester v. American Broadcasting Co., 650 F. Supp. 766, 780 (S.D.Fla. 1986) (applying Florida Law).
Although appellants argued this point in more detail below, on appeal they cite only one case to support their contention: Flynn v. Higham (1983) 149 Cal.App.3d 677 (Flynn). The plaintiffs in that case were the heirs of the late actor Errol Flynn.
Emotional distress caused by defamation is a compensable component of damages recoverable in a defamation action, but does not give rise to a separate cause of action on a separate tort theory. (Flynn v. Higham (1983) 149 Cal.App.3d 677.) To allow another tort cause of action for emotional distress “ ‘based on the same acts which would not support a defamation action, would allow plaintiffs to do indirectly what they could not do directly [and] render meaningless any defense of truth or privilege.’ ”
It would also render meaningless any defense of truth or privilege.'" ( Fellows v. National Enquirer, Inc. (1986) 42 Cal.3d 234, 245 [ 228 Cal.Rptr. 215, 721 P.2d 97], quoting Flynn v. Higham (1983) 149 Cal.App.3d 677, 682 [ 197 Cal.Rptr. 145].) Sykes maintains, however, that his claims for infliction of emotional distress and interference with economic advantage must be allowed to proceed because they are not based on the allegedly defamatory communications, but on Gilbert's use of a Google Sponsored Links function, which "constitutes a discrete item of misconduct."
The claim dies with the person. ( Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1485, citing Flynn v. Higham (1983) 149 Cal.App.3d 677, 683.) Thus, plaintiffs have no standing to assert claims which their son might have been able to assert.