Marich v. Mgm/Ua Telecommunications, Inc.

• Court: California Court of Appeals
• Writing for the Court: Hastings
• Citation: Marich v. Mgm/Ua Telecommunications, Inc., 7 Cal.Rptr.3d 60, 113 Cal.App.4th 415 (Cal. App. 2003)
• Decision Date: 18 November 2003
• Docket Number: No. B154688.,B154688.
• Parties: Robert and Marietta MARICH, Plaintiffs and Appellants, v. MGM/UA TELECOMMUNICATIONS, INC., and Metro Goldwyn Mayer, INC., Defendants and Respondents.

7 Cal.Rptr.3d 60

113 Cal.App.4th 415

Robert and Marietta MARICH, Plaintiffs and Appellants, v. MGM/UA TELECOMMUNICATIONS, INC., and Metro Goldwyn Mayer, INC., Defendants and Respondents.

No. B154688.

Court of Appeal, Second District, Division 4.

November 18, 2003.

Rehearing Denied December 16, 2003.

Watts & Associates and Laurence W. Watts, Houston, TX; Evan D. Marshall for Plaintiffs and Appellants.

Akin, Gump, Strauss, Hauer & Feld, Mirah A. Horowitz and Rex S. Heinke, Los Angeles, for Defendants and Respondents.

HASTINGS, J.

BACKGROUND

Appellants Robert and Marietta Marich brought this action in 1997, against QRZ Media, Inc., MGM/UA Telecommunications, Inc., and Metro Goldwyn Mayer, Inc., respectively, the producers and distributors of a television show entitled, "LAPD: Life on the Beat." The show was videotaped by a QRZ-employed crew consisting of a camera operator and a soundman who rode on patrol with officers of the Los Angeles Police Department. On October 20, 1996, the crew videotaped two officers as they responded to a call to the apartment of appellants' son, Michael Marich, where he was found dead.

While the television crew videotaped, one of the policemen, Officer Jackson, telephoned appellants at their home in Texas. The result of the videotaping was a four-minute segment in an episode of the show entitled, "The Final Act." Officer Jackson's telephone call to appellants appears in the episode. He is seen and heard speaking first to appellant Marietta Marich, then to appellant Robert Marich, informing them, without identifying appellants or their son by name, that the police discovered their son dead in his apartment of an apparent drug overdose. While the words spoken are unintelligible, appellants' responses are audible, and clearly register shock and anguish.

After the show was broadcast, appellants brought this action, and it was consolidated with appellants' action against the City of Los Angeles regarding the same show. The complaint sets forth causes of action for intentional infliction of emotional distress, common-law invasion of privacy, based upon intrusion and public disclosure of private facts, and statutory invasion of privacy, based upon Penal Code sections 631, 632, and 634. After the trial court granted the respondents' anti-SLAPP motion and dismissed the action pursuant to Code of Civil Procedure section 425.16, we reversed the judgment of dismissal and the matter was remanded for trial.¹

In June 2001, QRZ Media, Inc. filed a Chapter 7 bankruptcy petition, staying the action with regard to that defendant, and jury trial commenced on July 5, 2001, against the remaining defendants, including respondents in this appeal, MGM/UA Telecommunications, Inc., and Metro Goldwyn Mayer, Inc., on the causes of action for common-law invasion of privacy based upon intrusion, and statutory invasion of privacy, based upon Penal Code section 632. The theory of the case was that the improper recordings combined with the subsequent publication of the conversations resulted in damages to appellants. The jury's deliberations began on July 24, 2001, and were quite eventful, with requests from the jury for rereading of testimony, further argument, and multiple questions, nearly all involving the meaning of the word intentional.

On July 26, 2001, after the jury indicated to the court that it might be deadlocked, one of the jurors was excused due to a prepaid family vacation, and the jury was instructed to begin deliberations anew. When the jury again indicated that it was deadlocked, the court discussed with counsel the advisability of giving an "Allen charge."² The court answered the jury's questions, permitted additional argument, and provided the rereading of requested testimony. Appellants' counsel then proposed an additional instruction with regard to intent, which was refused by the court.

Deliberations resumed, and the jury again reported that it was deadlocked, 8 to 4. The parties stipulated to accepting a verdict based on a vote of 8 to 4, instead of 9 to 3. The "Allen charge" was not given.

The jury returned special verdicts on each of the two causes of action. With regard to the common law intrusion theory, the jury answered "no" to the following question: "Did any employee of QRZ Media, acting within the scope of his or her employment, intentionally intrude into Robert Marich's solitude, seclusion, private affairs or concerns, specifically with respect to Robert Marich's side of the telephone death-notification conversation with Officer Jackson on October 20, 1996?"

With regard to the statutory claim based on Penal Code section 632, the jury answered three questions as follows: "11. Did any employee of QRZ Media, acting within the scope of employment, record or eavesdrop upon Robert Marich's side of a confidential communication without Robert Marich's consent? [¶] Yes. [¶] 12. Did that person use an electronic amplifying or recording device? [¶] Yes. [¶] 13. Did that person do so intentionally, and not inadvertently or by chance? [¶] No."

Judgment was entered in favor of respondents on September 20, 2001, and appellants filed a timely notice of appeal.

DISCUSSION

1. Definition of Intent

Appellants contend that the trial court gave erroneous jury instructions with regard to the element of intent for both the statutory and common-law causes of action for invasion of privacy; and that the erroneous instructions had the effect of incorrectly placing the burden on them to prove absence of mistake or inadvertence.

The elements of both the statutory invasion of privacy and common-law invasion of privacy include intentional conduct. Penal Code section 632 prohibits the intentional eavesdropping to a confidential communication by means of any electronic amplifying or recording device, without the consent of all parties. The common-law cause of action for invasion of privacy based upon intrusion "has two elements: (1) [intentional] intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person." (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214, 231, 74 Cal.Rptr.2d 843, 955 P.2d 469.) "It encompasses ... unwarranted sensory intrusions such as eavesdropping.... [Citation.]" (Id. at pp. 230-231, 74 Cal.Rptr.2d 843, 955 P.2d 469.)

"[T]he word `intentional' has been the subject of widely differing interpretations, depending on context and apparent legislative intent. [Citations.] ... the recording of a confidential conversation is intentional if the person using the recording equipment does so with the purpose or desire of recording a confidential conversation, or with the knowledge to a substantial certainty that his use of the equipment will result in the recordation of a confidential conversation. [Citations.]" (People v. Superior Court (Smith) (1969) 70 Cal.2d 123, 134, 74 Cal.Rptr. 294, 449 P.2d 230 (Smith).)

Smith's definition describes general criminal intent: "`As Professor Perkins puts it: "Intent includes those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire)."'" (People v. Colantuono (1994) 7 Cal.4th 206, 217, 26 Cal.Rptr.2d 908, 865 P.2d 704.) Respondents contend that even if the definition of intent applied by Smith to criminal eavesdropping were appropriate in a civil action arising under Penal Code section 632, it has no place in an action based upon the common-law intrusion tort. We disagree.³

Smith's dual definition of intentional is in essence, the definition found in the Restatement Second of Torts: "The word `intent' is used throughout the Restatement ... to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." (Rest.2d Torts, § 8A, italics added.) Thus, "[i]ntent is not ... limited to consequences which are desired. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." (Rest.2d Torts, § 8A, com. b.)⁴

The dual definition is used widely in civil actions. (E.g., Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1156-1157, 131 Cal.Rptr.2d 29, 63 P.3d 937 [intentional interference with prospective economic advantage]; Akins v. State of California (1998) 61 Cal.App.4th 1, 36, 71 Cal.Rptr.2d 314 [inverse condemnation, intentional diversion of waters]; Arendell v. Auto Parts Club, Inc. (1994) 29 Cal.App.4th 1261, 1265, 35 Cal.Rptr.2d 83 [intentional employer misconduct]; Shell Oil Co. v. Winterthur Swiss Ins. Co. (1993) 12 Cal.App.4th 715, 744-745, 15 Cal.Rptr.2d 815 [insurance-policy exclusion for intentional torts].)

In spite of its widespread use, there was no separate BAJI instruction at the time of this trial for the dual definition of intent for general use in tort actions or for use in privacy actions, although the dual formula was used in defining several specific torts. (See e.g., BAJI Nos. 7.81, 7.83, 12.77.) The trial court did not, however, borrow from other intentional torts. Nor did the court use either the Restatement language or the language suggested in Smith, supra, 70 Cal.2d at page 132, 74 Cal.Rptr. 294, 449 P.2d 230.⁵

Over appellants' objection, the trial court engrafted respondents' instruction, and more, onto BAJI No. 7.20, which sets forth the elements of an invasion-of-privacy cause of action.

Unmodified, BAJI No. 7.20 (9th ed.) reads: "The plaintiff __________ [also] seeks to recover damages based upon a claim of invasion of privacy by intrusion into private affairs. [¶] The essential elements of this claim are: [¶] 1. The defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion, private affairs or concerns of the plaintiff; [¶] 2. The...