Dieu v. Mcgraw, B223117

• Decision Date: 06 January 2011
• Docket Number: CONSOLIDATED WITH BC423681,B223117,No. BC423397,BC423397
• Court: California Court of Appeals Court of Appeals
• Parties: SHIRLEY DIEU, et al., Plaintiffs and Respondents, v. PHIL MCGRAW, et al., Defendants and Appellants.

SHIRLEY DIEU, et al., Plaintiffs and Respondents, v. PHIL MCGRAW, et al., Defendants and Appellants.

B223117

No. BC423397

CONSOLIDATED WITH BC423681

COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

Filed 1/6/11

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

APPEAL from an order of the Superior Court of Los Angeles County, Elizabeth Allen White, Judge. Affirmed in part, reversed in part, and remanded.

Davis Wright Tremaine LPP, Kelli L. Sager, Karen A. Henry, for Defendants and Appellants.

Smith, Chapman & Campbell, Steven C. Smith, Mark T. Kearney; Julander, Brown & Bollard, William C. Bollard, for Plaintiffs and Respondents.

INTRODUCTION

Defendants and appellants Phil McGraw (McGraw), CBS Television Distributions (incorrectly sued as "Paramount Pictures") (CBS), Dr. Frank Lawlis, Sarah Nord a/k/a Sarah Rogers, Ashley Bloom, Sheldon McGregor, and Peteski Productions, Inc. (collectively defendants) appeal from the trial court's order denying their special motion to strike (SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute).¹ We hold that although the action may involve protected activity under the anti-SLAPP statute, the order denying the motion should be reversed in part because some of plaintiffs' claims are barred by the releases, and therefore plaintiffs have not shown a probability of prevailing on those claims—a requirement for granting a SLAPP motion. We also hold that plaintiffs have demonstrated the necessary probability of prevailing on the other claims.

BACKGROUND

A. Factual Background

"Dr. Phil" is a daytime television program featuring defendant Dr. Phil McGraw, a former practicing clinical psychologist. During the program, McGraw talks to the audience and guests about a wide variety of topics related to inter-personal and societal relationships, such as obesity, drug abuse, infidelity, and domestic violence, among others. The Dr. Phil show also presents special episodes, including "The Dr. Phil House," (sometimes referred to as the Program) where six guests agree to spend up to a week at a separate location interacting with McGraw and other houseguests.

Plaintiffs each had submitted comments on the website for the Dr. Phil show regarding certain personal issues. Dieu said she did not trust men and "hate[s] men."

Matchett said she had certain anger issues. Thereafter, the producers of the Dr. Phil show contacted plaintiffs expressing interest in having plaintiffs participate in the show. According to plaintiffs, they were told the Program would involve living in a house (the Dr. Phil House) with other individuals seeking therapy; McGraw was a world renowned psychologist who would visit them at the Dr. Phil House to provide therapy to them for their issues; and they could leave the Dr. Phil house at any time. Matchett asserts she specifically was told that McGraw was a licensed medical professional.

Plaintiffs signed written release agreements before they were allowed to participate in the Program. Thus, on September 25, 2007, and September 28, 2007, plaintiffs each signed a "Dr. Phil Program Appearance Release (Field Taping)" (September releases). On October 9, 2007, plaintiffs also each signed a "Dr. Phil Program Appearance Release" (October releases). Plaintiffs claim, however, that with respect to the October releases, they were fraudulently induced by defendants into executing those agreements, that defendants' representatives hurried plaintiffs in reviewing and signing them, and that defendants representatives thereafter added pages to them.

All four releases are substantially the same, each about one page long, and each is captioned in bold, capitalized font: "DR. PHIL PROGRAM APPEARANCE RELEASE (FIELD TAPING)" or "DR. PHIL PROGRAM APPEARANCE RELEASE. They provide that plaintiffs "understand and acknowledge that the [Program] consists of a 'talk show' format discussion about topics of public interest and that, by its nature, the [Program] includes heated discussions, commentary and remarks." The releases each also provide in part that, "[plaintiffs] will never sue and [plaintiffs] fully release and discharge, [CBS], Peteski Productions, Inc., [McGraw] and/or their respective distributors, assigns, affiliates, licensees, agents, officers, directors, shareholders, employees and attorneys, and each of them for any loss, claims or injuries of every kind and nature which [plaintiffs] may now have or may hereafter acquire arising out of or in connection with the [Program] including without limitation: (a) any claims, demands and causes of action for invasion of privacy or publicity, defamation, infliction of emotionaldistress and any other tort in connection therewith;... (d) because [Plaintiffs did] not like the questions, responses or outcome of the [Program]; and (e) because [CBS] did not fully disclose the subject matter of the [Program] or the identity of other guests appearing on the [Program]. [Plaintiffs] voluntarily assume the full risk of any loss or injury (including, without limitation, physical or emotional loss or loss of property or income) to [themselves]... that may occur as a result of the production, taping and/or broadcast of the [Program]...." In addition, the releases each provides that: (1) McGraw does not administer individual, group or medical therapies, and that plaintiffs would not be receiving therapy of any kind from him, (2) no promises had been made to plaintiffs other than those expressly set forth in the releases, (3) no promises had been made to plaintiffs about the final or specific content of the Program, and (4) in signing the releases, plaintiffs did not rely on any representations or statements that were not set forth in the releases.

Six individuals, including plaintiffs, participated in Program. The Program was produced and filmed in late September and early October 2007, and was broadcast in December 2007.

According to plaintiffs, the Dr. Phil House was a cramped, windowless "mock house" on a sound stage in a bad neighborhood. Their cell phones and laptops were taken from them, and they were not permitted to access them while in the Dr. Phil House. The food they were provided included items they had identified in questionnaires as being their least favorite foods. All six guests, including the male participants, shared one bathroom. Plaintiffs and the other participants received very limited group counseling, and the group exercises were not conducted by McGraw. McGraw appeared only occasionally at the Dr. Phil House to speak to plaintiffs. The conditions as administered by the staff were suppose to be part of the therapy provided to plaintiffs. Plaintiffs received "limited group counseling." On several occasions during Matchett's stay at the Dr. Phil House, she wanted to leave because she was unable to communicate with her family. Matchett was convinced to stay by defendants' representations that shecould communicate with her family, but defendants prevented those communications from occurring.

On the third night at the Dr. Phil House, the participants were told they were going to have a special dinner guest. Later that evening, McGraw appeared on the television monitor and announced, "Here's your dinner guest." The male dinner guest was at the front door, fully naked exposing his genital area. Plaintiffs were shocked and horrified. Plaintiffs ran into a room and shut and locked the door. Dieu heard the crew and others laughing at them. They suffered emotional damages, and Dieu also suffered physical injury. Plaintiffs insisted on leaving, but defendants were uncooperative in allowing them to do so. Plaintiffs ultimately were allowed to leave the Dr. Phil House. Plaintiffs allege various emotional and physical injuries from the experience.

B. Procedural Background

Plaintiffs, appearing in propria persona, filed separate complaints against most of the defendants. Thereafter, plaintiffs were represented by the same counsel, and they filed separate, but largely identical, first amended complaints (FAC) against all defendants. They each allege eight causes of action against defendants: (1) fraud, (2) negligent misrepresentation, (3) negligence, (4) breach of fiduciary duty, (5) violation of Business and Professions Code section 17200, (6) rescission, (7) intentional infliction of emotional distress, and (8) negligent infliction of emotional distress. All of the causes of action are alleged against all defendants except the cause of action for breach of fiduciary duty is alleged only against McGraw. The two lawsuits ultimately were consolidated.²

The general allegations of each FAC are divided between the "Events Leading Up to Plaintiffs Stay in the 'Dr. Phil House, '" and the "Events At the Dr. Phil House." Defendants' alleged conduct prior to the filming of the Program included purported misrepresentations made to induce plaintiffs into staying at the Dr. Phil House.

Plaintiffs' allege that defendants misrepresented that the purpose of plaintiffs staying at the Dr. Phil House was to offer therapy, that although it was a show, it was not a "reality" type show, that plaintiffs would receive personal and direct treatment from McGraw, and that plaintiffs could leave at any time (misrepresentations). Defendants' alleged conduct prior to the filming and broadcast of the Program also included, unbeknownst to plaintiffs, adding pages into a release agreement defendants presented to plaintiffs for signature on October 9, 2007, and either misrepresenting and concealing material facts that McGraw was not a licensed medical professional, and that the Dr. Phil House was a "mock house" on a sound stage in...