McCollum v. CBS, Inc., B025565

• Decision Date: 12 July 1988
• Docket Number: No. B025565,B025565
• Citation: 202 Cal.App.3d 989,249 Cal.Rptr. 187
• Court: California Court of Appeals Court of Appeals
• Parties: , 15 Media L. Rep. 2001 Jack McCOLLUM, Geraldine Lugenbuehl, Estate of John Daniel McCollum, by the Administrator, Jack McCollum, Plaintiffs and Appellants, v. CBS, INC., sued herein as CBS Records, and John "Ozzy" Osbourne, sued herein as Ozzy Osbourne, Defendants and Respondents.

Page 187

249 Cal.Rptr. 187

202 Cal.App.3d 989, 15 Media L. Rep. 2001

Jack McCOLLUM, Geraldine Lugenbuehl, Estate of John Daniel McCollum, by the Administrator, Jack McCollum, Plaintiffs and Appellants, v. CBS, INC., sued herein as CBS Records, and John "Ozzy" Osbourne, sued herein as Ozzy Osbourne, Defendants and Respondents.

No. B025565.

Court of Appeal, Second District, Division 3, California.

July 12, 1988.

As Modified July 28, 1988.

Review Denied Oct. 12, 1988.

Anderson, Parkinson, Weinberg & Miller and Thomas T. Anderson, Indio, De Goff and Sherman, Victoria J. De Goff and Richard I. Sherman, Berkeley, for plaintiffs and appellants

Wyman, Bautzer, Christensen, Kuchel & Silbert, Howard L. Weitzman, P.C., Michael J. O'Connor and Allison Weiner Fechter, Los Angeles, for defendant and respondent John "Ozzy" Osbourne.

O'Melveny & Myers, William W. Vaughn, Douglas W. Abendroth, Los Angeles, for defendant and respondent CBS Records Inc. (successor in interest to CBS Inc.).

Fred J. Hiestand and Paul N. Halvonik, San Francisco, as amicus curiae on behalf of Ass'n of California Tort Reform.

CROSKEY, Associate Justice.

Plaintiffs, Jack McCollum, Geraldine Lugenbuehl, Estate of John Daniel McCollum, Jack McCollum, Administrator (hereinafter "plaintiffs") appeal from an order of dismissal following the sustaining of a demurrer without leave to amend. The defendants John "Ozzy" Osbourne ("Osbourne"), CBS Records and CBS, Incorporated (hereinafter collectively "CBS"), Jet Records, Bob Daisley, Randy Rhoads, Essex Music International, Ltd., and Essex Music International Incorporated, ¹ composed, performed, produced and distributed certain recorded music which plaintiffs claim proximately resulted in the suicide of their decedent. As we conclude that plaintiffs' pleading (1) fails to allege any basis for overcoming the bar of the First Amendment's guarantee of free speech and expression ²

² and, in any event, (2) fails to allege sufficient facts to show any intentional or negligent invasion of plaintiffs' rights, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 1984, the plaintiffs' decedent, John Daniel McCollum ("John"), shot and killed himself while lying on his bed listening to Osbourne's recorded music. John was 19 years old at the time, and had a problem with alcohol abuse as well as serious emotional problems. Alleging that Osbourne's music was a proximate cause of John's suicide, plaintiffs filed suit against all of the named defendants.

The original complaint was filed on October 25, 1985, and, before an appearance by any defendant, was followed by the first amended complaint on December 4, 1985. Plaintiffs alleged claims which were based on theories of negligence, product liability and intentional misconduct. On August 7, 1986, the court sustained general demurrers to all causes of action without leave to amend, but granted plaintiffs permission to file, within 60 days, a motion for leave to file a second amended complaint. That motion was made and, on December 19, 1986, was denied. On the same date, the court signed the order of dismissal (based on its ruling of August 7, 1986) from which the plaintiffs now appeal.

In the trial court's view, the First Amendment was an absolute bar to plaintiffs' claims. Nonetheless, the court did invite plaintiffs to seek leave to file a further pleading to see if that hurdle could be overcome. A proposed second amended complaint was submitted and the court made its final decision based on those allegations. For that reason, we here treat such proposed pleading as the operative one before us and assume that its states plaintiffs' case in its strongest light. In accordance with well settled principles, we likewise assume those allegations to be true. (Baldwin v. Zoradi 1981) 123 Cal.App.3d 275, 278, 176 Cal.Rptr. 809; Droz v. Pacific National Ins. Co. (1982) 138 Cal.App.3d 181, 182, 188 Cal.Rptr. 10.) They reflect the following facts.

On Friday night, October 26, 1984, John listened over and over again to certain music recorded by Osbourne. He listened repeatedly to side one of an album called, "Blizzard of Oz" and side two of an album called, "Diary of a Madman." These albums were found the next morning stacked on the turntable of the family stereo in the living room. John preferred to listen there because the sound was more intense. However, he had gone into his bedroom and was using a set of headphones to listen to the final side of the two record album, "Speak of the Devil" when he placed a .22 caliber handgun next to his right temple and took his own life. ³ When he was found the next morning he was still wearing his headphones and the stereo was still running with the arm and needle riding in the center of the revolving record.

Plaintiffs allege that Osbourne is well known as the "mad man" of rock and roll and has become a cult figure. The words Osbourne in his music sought to appeal to an audience which included troubled adolescents and young adults who were having a difficult time during this transition period of their life; plaintiffs allege that this specific target group was extremely susceptible to the external influence and directions from a cult figure such as Osbourne who had become a role model and leader for many of them. Osbourne and CBS knew that many of the members of such group were trying to cope with issues involving self-identity, alienation, spiritual confusion and even substance abuse.

                and music of his songs and even the album covers for his records seem to demonstrate a preoccupation with unusual, anti-social and even bizarre attitudes and beliefs often emphasizing such things as satanic worship or emulation, the mocking of religious beliefs and death.  The message he has often conveyed is that life is filled with nothing but despair and hopelessness and suicide is not only acceptable, but desirable. 4  Plaintiffs further allege that all of the defendants, through their efforts with the media, press releases and the promotion of Osbourne's records, have sought to cultivate this image and to profit from it
                

Plaintiffs allege that a "special relationship" of kinship existed between Osbourne and his avid fans. This relationship was underscored and characterized by the personal manner in which the lyrics were directed and disseminated to the listeners. He often sings in the first person about himself and about what may be some of the listener's problems, directly addressing the listener as "you." That is, a listener could feel that Osbourne was talking directly to him as he listened to the music.

One of the songs which John had been listening to on the family stereo before he went to his bedroom was called "Suicide Solution" which, plaintiffs allege, preaches that "suicide is the only way out." ⁵ Included "Ah know people

in a 28- [202 Cal.App.3d 997] instrumental break in the song are some "masked" lyrics (which are not included in the lyrics printed on the album cover):

You really know where its at

You got it

Why try, why try

Get the gun and try it

Shoot, shoot, shoot" (this line was repeated for about ten seconds).

These lyrics are sung at one and one-half times the normal rate of speech and (in the words of plaintiffs' allegations) "are not immediately intelligible. They are perceptible enough to be heard and understood when the listener concentrates on the music and lyrics being played during this 28-second interval." In addition to the lyrics, plaintiffs also allege that Osbourne's music utilizes a strong, pounding and driving rhythm and, in at least one instance, ⁶ a "hemisync" process of sound waves which impact the listener's mental state.

Following these general allegations, plaintiffs allege that the defendants knew, or should have known, that it was foreseeable that the music, lyrics and hemisync tones of Osbourne's music would influence the emotions and behavior of individual listeners such as John who, because of their emotional instability, were peculiarly susceptible to such music, lyrics and tones and that such individuals might be influenced to act in a manner destructive to their person or body. Plaintiffs further allege that defendants negligently disseminated Osbourne's music to the public and thereby (1) aided, advised or encouraged John to commit suicide (count I) or (2) created "an uncontrollable impulse" in him to commit suicide (count II); and that John, as a proximate result of listening to such music did commit suicide on October 26, 1984.

In the remaining two counts, plaintiffs allege, respectively, that defendants' conduct constituted (1) an incitement of John to commit suicide count III) and (2) an intentional aiding, advising or encouraging of suicide in violation of Penal Code section 401 (count IV). In all four counts plaintiffs allege that defendants acted maliciously and oppressively and thus are liable for punitive damages.

CONTENTIONS OF THE PARTIES

Plaintiffs argue that Osbourne's music and lyrics were the proximate cause of John's suicide and are not entitled to protection under the First Amendment. They seek recovery here on three separate theories. They claim that Osbourne and CBS (1) were negligent in the dissemination of Osbourne's recorded music, (2) intentionally disseminated that music with knowledge that it would produce an uncontrollable impulse to self-destruction in persons like John and (3) intentionally aided, advised or encouraged John's suicide in violation of Penal Code section 401, thus giving plaintiffs, as members of a group intended to be protected by that statute, a right of action for civil damages.

Defendants' initial and primary response is that plaintiffs' entire action, irrespective of the theory of recovery, is barred by the First Amendment's guarantee of free speech. In addition, they argue that the public dissemination of Osbourne's recorded music did not, as a matter of law, negligently or intentionally invade any right of plaintiffs or...