Maheu v. CBS, Inc.

• Decision Date: 24 May 1988
• Docket Number: No. B026485,B026485
• Citation: 247 Cal.Rptr. 304,201 Cal.App.3d 662
• Court: California Court of Appeals Court of Appeals
• Parties: , 1988 Copr.L.Dec. P 26,306, 7 U.S.P.Q.2d 1238, 15 Media L. Rep. 1548 Robert MAHEU, Plaintiff and Appellant, v. CBS, INC., et al., Defendants and Respondents.

Page 304

247 Cal.Rptr. 304

201 Cal.App.3d 662, 1988 Copr.L.Dec. P 26,306,

7 U.S.P.Q.2d 1238, 15 Media L. Rep. 1548

Robert MAHEU, Plaintiff and Appellant, v. CBS, INC., et al., Defendants and Respondents.

No. B026485.

Court of Appeal, Second District, Division 4, California.

May 24, 1988.

Hurley, Grassini & Wrinkle and Pat Murphy, North Hollywood, for plaintiff and appellant

O'Melveny & Myers, Robert C. Vanderet, Douglas W. Abendroth, Newport Beach, Shield & Smith, J. Lawrence Judy and Douglas Fee, Los Angeles, for defendants and respondents.

GEORGE, Associate Justice.

Robert Maheu appeals from an order of dismissal entered after the trial court sustained demurrers to his fourth amended complaint without leave to amend. The action arose out of the publication of Citizen Hughes, a best-selling book about Howard Hughes.

Appellant was Hughes's aide from approximately 1956 to 1970. Appellant never met Hughes personally, but communicated with him largely by means of written notes throughout the final decades of Hughes's life. Appellant brought his action against Donald Ray Woolbright, author Michael Drosnin, publishers CBS, Inc., Bantam Books and Playboy Enterprises, Inc., and booksellers B. Dalton, Inc. and Hunter's Books. ¹ In the fourth amended complaint, appellant alleged seven causes of action: conversion, "conversion-constructive trust," invasion of privacy ("false light," "physical intrusion," and appropriation of name, likeness or personality), commercial appropriation of the right of publicity, and interference with prospective economic advantage.

Appellant contends (1) the first and second causes of action adequately state the elements of conversion and are not barred by the statute of limitations or preempted by the Copyright Act; (2) the third, fourth, fifth and sixth causes of action adequately state the elements of public disclosure of private facts, intrusion, appropriation, and false light invasion of privacy and are not barred by the statute of limitations; and (3) the seventh cause of action adequately states the elements of intentional interference with prospective economic advantage. We affirm the order for the reasons that follow.

FACTUAL AND PROCEDURAL HISTORY

Appellant filed this action on April 24, 1985. In his first and second causes of action for conversion, appellant alleged he was the recipient and addressee of "confidential letters" from Hughes. He was the owner of, and had a property interest in, the letters and their contents. ² On June 5, 1974, defendant Woolbright and former defendant Summa Corporation converted these documents to their own use. In June 1977, respondents conspired to acquire the papers, and thereafter Citizen Hughes was written and published in November or December 1984. Appellant did not learn of this conversion until January 1985, and did not learn of Playboy's publication of certain of the letters until November or December 1984. Appellant alleged he suffered a monetary loss consisting of the letters' diminution in value because of the prior publication, and his lost profits. He asked that a constructive trust be imposed upon the profits respondents derived from their publication.

Appellant's subsequent causes of action incorporated the allegations of the first cause of action. In his third cause of action for "false light" invasion of privacy, appellant alleged that prior to and during 1985, respondents invaded his right to privacy by reading his confidential letters and In his fourth cause of action for "physical" invasion of privacy, appellant alleged that "members of the conspiracy" broke into a locked, private building where the letters were stored and further invaded appellant's privacy by taking possession of the letters, which they knew were appellant's. This intrusion was ratified and adopted by the other coconspirators. As a fifth cause of action, appellant alleged the respondents appropriated his name, likeness and personality by publishing the book and the magazine. In the sixth cause of action for commercial appropriation of the right of publicity, appellant alleged his property and privacy interests in the confidential letters gave him a right to publish his own account of his relationship with Hughes, using the private letters, which right was usurped by respondents' own publication.

                by writing about, publishing, and distributing the letters in the book Citizen Hughes.   The basis of the "false light" allegation is the book's characterization of the relationship between appellant and Hughes as a "courtship and a marriage," with descriptions of the men exchanging vows, and Hughes telling appellant they would spend the rest of their lives together and compelling appellant to vow never to leave Hughes
                

In his seventh cause of action for intentional interference with prospective economic advantage, appellant alleged he had prospective and present contractual relationships with various entities and persons, including a publisher, for the publication and sale of the letters and appellant's story to the public. Respondents knew of the existing contract and appellant's economic expectations with regard to the letters but nevertheless proceeded to publish and distribute Citizen Hughes, with the intention of destroying appellant's right to sell his letters and diminishing the publicity value of his story.

Respondents CBS, Inc., Michael Drosnin, Playboy Enterprises, Inc., and Bantam Books, Inc., demurred to appellant's fourth amended complaint. Their grounds were that all causes of action failed to state sufficient facts (Code Civ.Proc., § 430.10, subd. (e)); that the first and second causes of action were barred by the applicable statute of limitations (Code Civ.Proc., § 338, subd. (3)); that the fourth cause of action was barred by the applicable statute of limitations (Code Civ.Proc., § 340, subd. (3)); and that the seventh cause of action was uncertain (Code Civ.Proc., § 430.10, subd. (f)). Respondents B. Dalton Company and Hunter's Books separately demurred and later joined in the demurrers of the other respondents.

The trial court sustained respondents' demurrers without leave to amend as to all causes of action. The demurrers to the first and second causes of action were sustained on the grounds the taking of intangible literary property did not constitute a conversion; the statute of limitations barred the action since appellant failed to allege an overt act in furtherance of the conspiracy within the limitations period, and the claims were preempted by the federal Copyright Act. The demurrers to the third cause of action were sustained because the statements alleged to constitute "false light" invasion were opinion; the facts disclosed did not constitute "private facts," and the facts were newsworthy. The demurrers to the fourth cause of action were sustained on the ground there was no physical intrusion. The demurrers to the fifth and sixth causes of action were sustained because appropriation does not include dissemination of matters of legitimate public interest within a constitutionally protected medium. The demurrers to the seventh cause of action were sustained because the conduct alleged was within the privilege of free competition; appellant had no protected property right in newsworthy facts within the public domain, and appellant had not alleged facts showing a definite prospect of economic gain. The entry of the order sustaining the demurrers without leave to amend was followed by an order of dismissal. This appeal followed.

DISCUSSION

In reviewing an order of dismissal entered after the sustaining of a demurrer If we determine a trial court was correct in its conclusion that the allegations of the complaint did not state any cause of action, we must then decide whether the trial court should have granted leave to amend. "Ordinarily it is an abuse of discretion to sustain a general demurrer to a complaint without leave to amend if there is a reasonable possibility that the defect in the complaint can be cured by amendment. [Citations.] ' "However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. [Citations.] Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citation.] " ' " (Profile Structures, Inc. v. Long Beach Bldg. Material Co. (1986) 181 Cal.App.3d 437, 444, 226 Cal.Rptr. 192, emphasis added; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.)

                without leave to amend, "we treat the demurrer as admitting all material facts properly pleaded and all reasonable inferences which can be [201 Cal.App.3d 670] drawn therefrom.  [Citations.]  The function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  [Citations.]  It is error to sustain a demurrer where a plaintiff has stated a cause of action under any possible legal theory.  [Citations.]"  (Von Batsch v. American Dist. Telegraph Co.  (1985) 175 Cal.App.3d 1111, 1117, 222 Cal.Rptr. 239.)   However, even if we conclude the trial court erred in its reasons for sustaining the demurrers, "since 'it is the validity of the court's action in sustaining the demurrer which is reviewable and not the court's statement of reasons for its action' [citation], we examine each cause of action to determine whether there are any other grounds for sustaining demurrers without leave to amend."  (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 419, 231 Cal.Rptr. 113.)
                

In the present case, the first cause of action had survived earlier challenges by way of demurrer based on the assertion the statute of limitations had run and the federal Copyright Act preempted this claim. The demurrers had been sustained on other grounds with leave to amend. When the trial court indicated at the hearing on the latest demurrer that it was sustaining the demurrers on these additional grounds, appellant...