Johnson v. Harcourt, Brace, Jovanovich, Inc.

• Decision Date: 13 December 1974
• Citation: 43 Cal.App.3d 880,118 Cal.Rptr. 370
• Court: California Court of Appeals Court of Appeals
• Parties: Douglas William JOHNSON et al., Plaintiffs and Appellants, v. HARCOURT, BRACE, JOVANOVICH, INC., et al., Defendants and Respondents. Civ. 43527.

Page 370

118 Cal.Rptr. 370

43 Cal.App.3d 880

Douglas William JOHNSON et al., Plaintiffs and Appellants, v. HARCOURT, BRACE, JOVANOVICH, INC., et al., Defendants and Respondents.

Civ. 43527.

Court of Appeal, Second District, Division 5, California.

Dec. 13, 1974.

Hearing Denied Feb. 19, 1975.

Arthur S. Katz, Pacific Palisades, and Marvin H. Kleinberg, Los Angeles, for plaintiffs and appellants.

Kaplan, Livingston, Goodwin, Berkowitz & Selvin and Peter C. Smoot, Beverly Hills, for defendant and respondent Harcourt, Brace, Jovanovich, Inc.

STEPHENS, Acting Presiding Justice.

This is an appeal from a judgment sustaining defendant's demurrer without leave to amend plaintiffs' complaint. Plaintiffs (Douglas William Johnson and other members of his family, Helen, Richard, Clement, and Dorance) ¹ filed suit on December 29, 1972 against defendants (Harcourt, Brace, Jovanovich, Inc. (publishers) and William F. Smith and Raymond Liedlich (authors of the textbook), alleging that defendants had invaded their right of privacy by republication of an article from The Nation magazine in a college English textbook published in 1965. The authors have not appeared in this action.

We are faced with two issues: (1) whether plaintiffs' complaint states a cause of action; and if so (2) whether the cause of action is barred by the statute of limitations.

There is no dispute as to the underlying facts involved in this case. On March 10, 1961, plaintiff Douglas William Johnson, a Negro janitor, found a sack containing $240,000 in cash lying on a street in Los Angeles. He reported his discovery to the authorities and was given a $10,000 reward for his action by Brinks, Incorporated, which had lost the money in transit. Several magazine articles recounted the experiences of the Johnson family after the incident. One such article, entitled 'Unexpected Rewards,' was published in the June 1963 issue of The Nation magazine. ² In 1965, defendants reprinted this article with the author's permission as a part of a teaching exercise in a college English textbook entitled 'From Thought to Theme,' subtitled: 'A Rhetoric and Reader for College English.' Plaintiffs first learned of the republication of the article on April 17, 1972, when an acquaintance of William Johnson's whose son had used the English textbook in college showed the Republication ³ to him.

The Complaint

For its first cause of action, plaintiffs alleged in pertinent part as follows:

'7. The publication of said textbook article was deliberately concealed from plaintiffs by defendants who neither sought nor obtained plaintiffs' consent jointly or severally, to use plaintiffs' individual names identities, experiences and stories in defendants' college English textbook.'

'8. Plaintiffs discovered defendants' unauthorized use of their names, identities, experiences and stories in said textbook article on April 17, 1972 . . .'

'9. As a direct consequence of plaintiffs' discovery of defendants' unauthorized publication, for commercial purposes, of plaintiffs' names, identities, experiences and stories, each of the plaintiffs has been embarrassed, humiliated, and exposed to public ridicule, and each has suffered mental distress, and the individual privacy of each plaintiff has been unwarrantedly invaded.'

'11. Defendants, and each of them, did the things herein alleged maliciously, and oppressively, and each plaintiff is therefore entitled to recover exemplary damages . . .'

For its second cause of action, plaintiffs alleged in pertinent part as follows:

'13. With full knowledge of plaintiffs' rights to control the use and publication of their individual names, identities, experiences and stories, and in wilful and deliberate disregard thereof, and without the authority or consent of plaintiffs, or any of them, said defendants infringed upon plaintiffs' rights and used plaintiffs' individual names, identities, experiences and stories in defendants' college English textbook and deliberately concealed such use and publication from plaintiffs.

'14. Reasonable compensation for the use and publication of each of plaintiffs' individual names, identities, experiences and stories, as aforesaid, is Ten Thousand Dollars . . .'

The prayer of the complaint seeks compensatory and exemplary damages in specified amounts for each cause of action and against each defendant.

Plaintiffs contend that the trial court erred in sustaining defendants' demurrer without leave to amend.

Discussion

We proceed to examine plaintiffs' complaint for its legal sufficiency according to the well settled principle that if upon consideration of all the facts alleged in the complaint it appears that the plaintiffs are entitled to any relief at the hands of the court, the complaint must be upheld. (Gruenberg v. Aetna Ins. Co., 9 Cal.3d 566, 572, 108 Cal.Rptr. 480, 510 P.2d 1032.) As the Supreme Court stated in Barquis v. Merchants Collection Assn., 7 Cal.3d 94, 103, 101 Cal.Rptr. 745, 751, 496 P.2d 817, 823, 'we are not limited to plaintiffs' theory of recovery in testing the sufficiency of their complaint against a demurrer, but instead must determine if the Factual allegations of the complaint are adequate to state a cause of action under any legal theory. The courts of this state have, of course, long since departed from holding a plaintiff strictly to the 'form of action' he has pleaded and instead have adopted the more flexible approach of examining the facts alleged to determine if a demurrer should be sustained. (Citations.)'

First Cause of Action

Plaintiffs' first cause of action is based on the emerging tort of invasion of privacy. However, it is not clear from the face of the complaint under which category of invasion of privacy plaintiffs' claims are based. The concept of a legal right to privacy was first generated by Warren and Brandeis in their landmark law review article entitled 'The Right to Privacy' published in 1890. ⁴ According to Dean William Prosser in his treatise on torts, this right of privacy is composed of four distinct forms of tortious invasion: (1) unreasonable intrusion upon the plaintiff's seclusion or solitude, or into his private affairs (see, e.g., Dietemann v. Time, Inc., 449 F.2d 245 (9th Cir. 1971); ⁵ (2) publicity which places the plaintiff in false light in the public eye. (see, e.g., Briscoe v. Reader's Digest Assn., 4 Cal.3d 529, 93 Cal.Rptr. 866, 483 P.2d 34); ⁶ (3) public disclosure of true, embarrassing private facts about the plaintiff (see, e.g., Briscoe, supra); (4) appropriation of plaintiff's name or likeness for commercial purposes (see, e.g., Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194). (Prosser, Law of Torts, § 117, pp. 804--814; Prosser, Privacy, 48 Cal.L.Rev. 383; Restatement (2d), Torts, § 652A (Tent.Draft No. 13, 1967.)) Plaintiffs' first cause of action appears to be based on the last three categories.

a. Public Disclosure of Private Facts:

In Briscoe (1971), the leading case in this category, the Supreme Court overruled the sustaining of a demurrer and held that a person previously convicted of a crime had stated a cause of action for invasion of privacy where he alleged that the defendant's publication had unnecessarily identified him by name in an article which defendant published in 1968 entitled 'The Big Business of Hijacking,' which detailed various incidents of truck hijackings throughout the country. As an example of the 'typical' hijackings, One sentence in the article described an unsuccessful hijacking attempt and specifically identified the plaintiff, Marvin Briscoe, as one of the hijackers. ⁷ There was no indication that the attempted hijacking occurred in 1956, approximately 12 years before the complained of publication. Plaintiff contended that--conceding the truth of the facts published in the article and that the subject matter of the article may have been newsworthy--the public disclosure of his name in conjunction with his prior criminal activity violated his right to privacy. The court upheld plaintiff's contention, stating that although Reader's Digest had the constitutional right to report the facts of plaintiff's criminal act, it did not have the concomitant right to use plaintiff's name in connection with the article. The court reasoned as follows (4 Cal.3d at pp. 537--539, 93 Cal.Rptr. at pp. 872--873, 483 P.2d at pp. 40--41):

'. . . (I)dentification of the Actor in reports of long past crimes usually serves little independent purpose. . . . Unless the individual has reattracted the public eye to himself in some independent fashion, the only public 'interest' that would usually be served is that of curiosity.

'There may be times, of course, when an event involving private citizens may be so unique as to capture the imagination of all. . . . (P)urely Private individuals may by an accident of history lose their privacy regarding that incident for all time. There need be no 'reattraction' of the public eye because the public interest never wavered. . . . (I)n each case it is for the trier of fact to determine whether the individual's infamy is such that he has never left the public arena; we cannot do so as a matter of law. (Emphasis added.)

'. . . as

'Another factor militating in favor of protecting the individual's privacy here is the state's interest in the integrity of the rehabilitative process. . . .

'. . .r f

'One of the premises of the rehabilitative process is that the rehabilitated offender can rejoin the great bulk of the community from which he has been ostracized for his anti-social acts. In return for becoming a 'new-man,' he is allowed to melt into the shadows of obscurity.' ⁸

In an earlier California case, Melvin v. Reid, 112 Cal.App. 285, 297 P. 91, the court used almost identical reasoning as that expressed in Briscoe in also finding that the plaintiff had stated a cause of action for invasion of privacy. Melvin involved a motion picture entitled 'The Red...