Bill v. Superior Court

• Decision Date: 09 December 1982
• Citation: 137 Cal.App.3d 1002,187 Cal.Rptr. 625
• Court: California Court of Appeals Court of Appeals
• Parties: , 8 Media L. Rep. 2622 Tony BILL et al., Petitioners, v. The SUPERIOR COURT FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Jocelyn VARGAS, etc., et al., Real Parties in Interest. A017025.

Page 625

187 Cal.Rptr. 625

137 Cal.App.3d 1002, 8 Media L. Rep. 2622

Tony BILL et al., Petitioners, v. The SUPERIOR COURT FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent Jocelyn VARGAS, etc., et al., Real Parties in Interest.

A017025.

Court of Appeal, First District, Division 2, California.

Dec. 9, 1982.

Hearing Denied Feb. 16, 1983.

Robert R. Callan, Lawrence J. Siskind, Cooper, White & Cooper, San Francisco, for petitioners.

Joseph W. Carcione, Jr., Belkin & Carcione, San Mateo, for real parties.

GRODIN, Presiding Justice.

Petitioners have sought an extraordinary writ to compel the trial court to vacate its order denying their motion for summary judgment, and to enter a contrary order. For reasons we shall explain, we consider this to be one of the exceptional cases in which relief at the pleading stage of a pending action is warranted. (See Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 479 P.2d 379; Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 984, 128 Cal.Rptr. 691; G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 24, 122 Cal.Rptr. 218.)

On March 24, 1979, Jocelyn Vargas attended a movie, "Boulevard Nights," at the Alhambra Theater on Polk Street in San Francisco. After leaving the theater, as she and her friends were walking down the street to catch a bus, she was shot by someone who, it is alleged, was a "member of the general public prone to violence ... who had been attracted to said Alhambra Theatre by the showing of said violent movie ...." Through her mother, as guardian, she has sued various defendants, including petitioners, who are alleged to be the producers of the movie. Her mother, alleging damage for medical treatment and loss of services, is also a plaintiff. Their complaint, as relevant here, is that petitioners "knew, or should have known, that said movie was a violent movie and would attract certain members of the public to view said movie who were prone to violence and who carried weapons ... [and] would, or were likely to cause grave bodily injury upon other members of the general public at or near the showing of said movie," but that petitioners "negligently failed to warn" Jocelyn of these facts, and "negligently failed to take sufficient steps to protect patrons," such as herself, "at and near said Alhambra Theatre." In a second cause of action, plaintiffs allege in addition that petitioners "willfully allowed the showing of said movie to the general public, knowing and thereby impliedly representing to members of the general public ... that said movie could be viewed in safety," that they "intended that patrons, such as Jocelyn Vargas, should rely on their representations," and she did so rely, to her detriment.

Petitioners are the executive producer of the film (Tony Bill), the producer (Bill Benenson), the director (Michael Pressman), and Eastside Productions, Inc., a corporate entity whose stock is totally owned by Tony Bill and Bill Benenson, and which provided There was evidence before the court on the motion for summary judgment that, notwithstanding the terms of the contract, petitioners Bill and Benenson collaborated with Warner Brothers in the preparation of "trailers" for the film, and in certain advertising for the film. Plaintiffs do not suggest, however, and there was no evidence, that the trailers or the advertisements themselves contributed to the danger of violence at theaters where the movie was shown.

the services of petitioners to Warner Brothers, Inc., for the making of the film. The contract between Eastside and Warner Brothers provides that all advertising and publicity rights in the film and in the production of the film vest exclusively in Warner Brothers. It also provides for a sharing of certain profits from the film between Warner Brothers and petitioners.

There was also evidence that, prior to the opening of the film in Los Angeles, petitioner Pressman discussed with Benenson that "Warner Bros. should consider having security at some of the theaters," and that Benenson did suggest to Warner Brothers that there be a guard or guards outside the theater in Los Angeles. Pressman testified that this suggestion was made because some of the press was linking "Boulevard Nights" with another film, "The Warriors" (which had opened earlier), as both being "gang movies," the inference being that some violence attended the showing of "The Warriors."

Finally, the trial court had before it a declaration from Jocelyn Vargas in which she stated that petitioners "represented to me and other members of the general public that this movie could be attended in safety," that she was not "warned or made aware of the likelihood or even the possibility that violence might occur at or near theatres showing this movie," and that if she had been warned she would never have gone. The nature or form of the asserted representation is not described. Plaintiffs do not contend that there existed an express representation, but rather that a representation that the movie could be attended in safety might be implied from advertisements inviting attendance.

DISCUSSION

I.

Petitioners, in support of their argument that they were entitled to summary judgment as a matter of law, rely heavily upon Olivia N. v. National Broadcasting Co. (1981) 126 Cal.App.3d 488, 178 Cal.Rptr. 888. In that case the plaintiff, who had been sexually assaulted with a bottle, sued the National Broadcasting Company and the Chronicle Broadcasting Company, claiming that the assailants had been incited to that action by a television broadcast of the film "Born Innocent," in which a similar scene was depicted. The trial court, after viewing the film, granted defendants' motion for nonsuit, and Division Four of this court affirmed. In an opinion, authored by Justice Christian, the court stated: "Appellant does not seek to impose a prior restraint on speech; rather, she asserts civil liability premised on traditional negligence concepts. But the chilling effect of permitting negligence actions for a television broadcast is obvious. 'The fear of damage awards ... may be markedly more inhibiting than the fear of prosecution under a criminal statute.' (New York Times Co. v. Sullivan [1964] 376 U.S. 254, 277 [84 S.Ct. 710, 724, 11 L.Ed.2d 686] ....) Realistically, television networks would become significantly more inhibited in the selection of controversial materials if liability were to be imposed on a simple negligence theory.... The deterrent effect of subjecting the television networks to negligence liability because of their programming choices would lead to self-censorship which would dampen the vigor and limit the variety of public debate. [p] Although the First Amendment is not absolute, the television broadcast of 'Born Innocent' does not, on the basis of the opening statement of appellant's attorney, fall within the scope of unprotected speech. Appellant concedes that the film did not advocate or encourage violent acts and did not constitute an 'incitement' within the meaning of Brandenburg v. Ohio [1969] 395 U.S. 444, 447-448 [89 S.Ct. 1827, 1829-1830, 23 L.Ed.2d 430] .... Incitement is the proper test here.... Thus [the broadcast] is constitutionally protected." (126 Cal.App.3d at pp. 494-495, 178 Cal.Rptr. 888.) ¹

Plaintiffs would distinguish Olivia N. on the ground that they do not seek to impose liability on the basis of the content of the motion picture--indeed, they suggest that so far as their theory is concerned, the movie might as well have been "Mary Poppins" rather than "Boulevard Nights." They do not allege that the movie incited or stimulated members of the public to violence, but rather that it would attract members of the public who were predisposed to violence, that petitioners knew that, and, knowing that, had a duty to warn and/or provide protection.

The distinction fails to dispose of the First Amendment concerns expressed in Olivia N., however, for it is apparent that if the showing of the movie "Boulevard Nights" tended to attract violence-prone persons to the vicinity of the theater, it is precisely because of the film's content, and for no other reason. The very basis of plaintiffs' factual showing in the trial court was that the media was linking "Boulevard Nights" with another movie, "The Warriors," the exhibition of which allegedly resulted in actual incidents of violence, as being "gang movies." Plaintiffs claim that petitioners were aware that the other movie "glorified violence," and their complaint refers to "Boulevard Nights" as a "violent movie." It is thus implicit in plaintiffs' theory that the film "Boulevard Nights" attracted violence-prone persons to the vicinity of the theater because it was about gangs, or because it was "violent," or because it was perceived to be similar in content to "The Warriors," or some combination of these factors.

Therefore, if liability were imposed upon the petitioners in this situation, First Amendment concerns would undoubtedly be implicated though perhaps less directly than in Olivia N. Film producers considering a movie about gangs, or about violence, or bearing some resemblance to a movie which attracted violence-prone persons, would be required to take into account the potential for liability to patrons for acts of violence on the part of persons over whom the producers would have no control. If, under such circumstances, they were held to have a duty to warn potential patrons of the risk of attending their movie, they would have to anticipate that the warning would deter substantial portions of the public from attending it--as Jocelyn Vargas says she would have been deterred if a warning had been given. And if, under such circumstances, they were held to be responsible for providing security protection at and in the vicinity of every theater at which the movie is shown, including public streets, the attendant costs might be substantial indeed. It is thus predictable...