Catsouras v. Department of California Highway Patrol

• Citation: 104 Cal. Rptr. 3d 352,181 Cal.App.4th 856
• Decision Date: 29 January 2010
• Docket Number: No. G040330.,No. G039916.,G039916.,G040330.
• Court: California Court of Appeals Court of Appeals
• Parties: CHRISTOS CATSOURAS et al., Plaintiffs and Appellants, v. DEPARTMENT OF CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

181 Cal.App.4th 856

104 Cal. Rptr. 3d 352

CHRISTOS CATSOURAS et al., Plaintiffs and Appellants, v. DEPARTMENT OF CALIFORNIA HIGHWAY PATROL et al., Defendants and Respondents.

No. G039916.

No. G040330.

Court of Appeals of California, Fourth District, Division Three.

January 29, 2010.

Bremer, Whyte, Brown & O'Meara, Keith G. Bremer, Tyler D. Offenhauser; Everett L. Skillman for Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, James Humes, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, Joel A.

Davis, Theodore B. Zinger and Elizabeth S. Angres, Deputy Attorneys General, for Defendant and Respondent Department of the California Highway Patrol.

Schlueter & Schlueter and Jon R. Schlueter for Defendant and Respondent Aaron Reich.

R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler and Jason P. Fowler for Defendant and Respondent Thomas O'Donnell.

OPINION

MOORE, J.

Nicole Catsouras (decedent) suffered a tragic end to her young life. At age 18, she was decapitated in an automobile accident. With her demise, the torment of her family members began. They endured not only her death, and the hideous manner of it, but also the unthinkable exploitation of the photographs of her decapitated remains. Those photographs were strewn about the Internet and spit back at the family members, accompanied by hateful messages.

In a second amended complaint against the Department of the California Highway Patrol (CHP) and two of its peace officers, Thomas O'Donnell (O'Donnell) and Aaron Reich (Reich), decedent's father, mother and sisters (plaintiffs) alleged that O'Donnell and Reich had e-mailed the horrific photographs of decedent's mutilated corpse to members of the public unrelated to the accident investigation. Plaintiffs alleged more specifically, in their opposition to a demurrer, that O'Donnell and Reich had e-mailed nine gruesome death images to their friends and family members on Halloween— for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping up in thousands of Web sites. Plaintiffs further alleged that Internet users at large then taunted them with the photographs, in deplorable ways.

The trial court, finding no duty on behalf of O'Donnell and Reich running in favor of plaintiffs, and no basis for a title 42 United States Code section 1983 (section 1983) cause of action, sustained demurrers without leave to amend as to O'Donnell and Reich. It thereafter entered judgments of dismissal as to them and a judgment on the pleadings in favor of the CHP. We reverse.

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 (Flynn).) The publication of death images is another matter, however. How can a decedent be injured in his or her privacy by the publication of death images, which only come into being once the decedent has passed on? The dissemination of death images can only affect the living. As cases from other jurisdictions make plain, family members have a common law privacy right in the death images of a decedent, subject to certain limitations. The court erred in sustaining the demurrers of O'Donnell and Reich as to the invasion of privacy cause of action.

In addition, the court erred in sustaining the demurrers as to the cause of action for intentional infliction of emotional distress. In their second amended complaint, plaintiffs alleged both that O'Donnell and Reich had acted with the intent to cause them emotional distress and that they had acted with reckless disregard of the probability of causing them emotional distress. The first of these allegations is sufficient to withstand a demurrer.

(1) We also disagree that plaintiffs have no cause of action for negligence, supporting emotional distress damages. Applying the time-tested factors enunciated in Rowland v. Christian (1968) 69 Cal.2d 108 [70 Cal.Rptr. 97, 443 P.2d 561] (Rowland) (the Rowland factors), we conclude that the CHP and its officers owed plaintiffs a duty of care not to place decedent's death images on the Internet for the purposes of vulgar spectacle. In reaching this conclusion, we find three of the Rowland factors to be particularly important in this case: foreseeability, moral blame, and the prevention of future harm. It was perfectly foreseeable that the public dissemination, via the Internet, of photographs of the decapitated remains of a teenage girl would cause devastating trauma to the parents and siblings of that girl. Moreover, the alleged acts were morally deficient. We rely upon the CHP to protect and serve the public. It is antithetical to that expectation for the CHP to inflict harm upon us by making the ravaged remains of our loved ones the subjects of Internet sensationalism. It is important to prevent future harm to other families by encouraging the CHP to establish and enforce policies to preclude its officers from engaging in such acts ever again.

We note that we do not have at issue here the freedom of the press. We address only the duties of CHP officers. The CHP here undertook to perform an investigation and to collect evidence. It was not in furtherance of the investigation, the preservation of evidence, or any other law enforcement purpose, to deliberately make a mutilated corpse the subject of lurid gossip. We determine the existence of duty on a case-by-case basis. Under the extraordinary facts of this case, O'Donnell and Reich owed plaintiffs a duty not to exploit CHP-acquired evidence in such a manner as to place them at foreseeable risk of grave emotional distress.

The trial court erred in granting judgment on the pleadings in favor of the CHP, inasmuch as plaintiffs have stated viable causes of action against O'Donnell and Reich and the CHP may be vicariously liable under Government Code section 815.2, subdivision (a). However, the trial court properly sustained the demurrer of the CHP as to the section 1983 cause of action against it. The cause of action against the CHP failed due to the doctrine of sovereign immunity.

The section 1983 cause of action against O'Donnell and Reich also failed. Plaintiffs did not plead facts sufficient to allege that the actions of O'Donnell and Reich violated any clearly established constitutional right. Consequently, the doctrine of qualified immunity shielded O'Donnell and Reich from liability under section 1983. The trial court properly sustained the demurrers of O'Donnell and Reich as to the section 1983 cause of action.

I FACTS

Plaintiffs Christos Catsouras, Lesli Catsouras, Danielle Catsouras, Christina Catsouras and Kira Catsouras filed a second amended complaint against the CHP, O'Donnell, and Reich following the death of decedent. In that complaint, plaintiffs alleged as follows. On October 31, 2006, decedent, the daughter of Christos and Lesli Catsouras and the sister of Danielle, Christina and Kira Catsouras, was decapitated in an automobile accident. CHP officers arrived at the scene, cordoned off the area where the accident occurred, and took control of decedent's remains. The CHP officers took multiple photographs of her decapitated corpse. The photographs were downloaded or otherwise transmitted to one or more CHP computers. O'Donnell and Reich, without plaintiffs' consent, e-mailed or otherwise transmitted "graphic and horrific photographs" of decedent to members of the public who were not involved in the official investigation of the car crash in which decedent perished. Thereafter, more than 2,500 Internet Web sites in the United States and the United Kingdom posted the photographs. Plaintiffs were subjected to malicious taunting by persons making use of the graphic and horrific photographs. For example, Christos Catsouras, decedent's father, received e-mails containing the photographs, including one entitled "Woo Hoo Daddy" that said, "Hey Daddy I'm still alive." Some Web sites painted decedent's life in a false light, including one that described decedent "as a `stupid bitch,' [and] a `swinger . . .' . . . ." As a proximate result of the acts of defendants, plaintiffs suffered severe emotional and mental distress.

Plaintiffs asserted eight causes of action: (1) violation of section 1983 (all defendants); (2) negligence (O'Donnell and Reich); (3) negligent infliction of emotional distress (O'Donnell and Reich); (4) intentional infliction of emotional distress (O'Donnell and Reich); (5) invasion of privacy (O'Donnell and Reich); (6) negligent supervision and retention (CHP and O'Donnell); (7) tortious act or omission of public employees (Gov. Code, §§ 820, subd. (a), 820.8) (O'Donnell and Reich); and (8) vicarious liability of public entity (Gov. Code, § 815.2, subd. (a)) (CHP).

The CHP filed a demurrer as to the first and sixth causes of action. Plaintiffs thereafter dismissed the sixth cause of action as against the CHP only. The court sustained the demurrer as to the first cause of action, without leave to amend, holding that the CHP was not a "person" for the purposes of section 1983, and was immune from liability under the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity.

Reich filed a demurrer challenging each of the causes of action against him. In their opposition to Reich's demurrer, plaintiffs alleged that the CHP's traffic collision report contained 50 photographs of the accident scene and decedent's uncovered decapitated corpse. They further alleged that O'Donnell and Reich had "released 9 of 50 graphic and horrific photographs to their family and friends via electronic mail for shock value on Halloween." Plaintiffs also alleged that the CHP had...