Miller v. National Broadcasting Co.

• Citation: 232 Cal.Rptr. 668,187 Cal.App.3d 1463
• Court: California Court of Appeals
• Decision Date: 18 December 1986
• Parties: , 69 A.L.R.4th 1027 Brownie MILLER et al., Plaintiffs and Appellants, v. NATIONAL BROADCASTING COMPANY et al., Defendants and Respondents. B015241.

Page 668

232 Cal.Rptr. 668

187 Cal.App.3d 1463, 69 A.L.R.4th 1027

Brownie MILLER et al., Plaintiffs and Appellants, v. NATIONAL BROADCASTING COMPANY et al., Defendants and Respondents.

B015241.

Court of Appeal, Second District, Division 1, California.

Dec. 18, 1986.

Review Denied March 11, 1987.

[187 Cal.App.3d 1469]

Rich & Ezer, Los Angeles, and David L. Margulies, Encino, for plaintiffs and appellants

Lillick McHose & Charles, Kenneth E. Kulzick, Amy D. Hogue and Patricia Duncan, Los Angeles, for defendants and respondents.

L. THAXTON HANSON, Associate Justice.

INTRODUCTION

The events giving rise to this action occurred on the night of October 30, 1979, when an NBC television camera crew entered the apartment of Dave and Brownie Miller in Los Angeles, without their consent, to film the activities of Los Angeles Fire Department paramedics called to the Miller home to administer life-saving techniques to Dave Miller, who had suffered a heart attack in his bedroom. The NBC television camera crew not only filmed the paramedics' attempts to assist Miller, but NBC used the film on its nightly news without obtaining anyone's consent. In addition, after it had received complaints from both Brownie Miller and her daughter, Marlene Miller Belloni, NBC later used portions of the film in a commercial advertising an NBC "mini-documentary" about the paramedics' work.

The paramedics were unable to successfully resuscitate Dave Miller; he died that October evening at Mount Sinai Hospital. His widow, Brownie, [187 Cal.App.3d 1470] and daughter, Marlene (hereinafter, sometimes plaintiffs or plaintiff wife and plaintiff daughter), brought suit against defendants National Broadcasting Company (NBC), doing business as KNBC, a Los Angeles television station, Ruben Norte (Norte), a producer employed by NBC, and the City of Los Angeles (City) for damages, alleging trespass, invasion of privacy, and infliction of emotional distress against all defendants. After considerable discovery and amendment of pleadings, the trial court granted defendants' motion for summary judgment. Plaintiffs appeal. We affirm in part and reverse in part.

PROCEDURAL HISTORY

On May 29, 1980, plaintiffs filed a "Complaint for Damages: Trespass; Intentional Infliction of Emotional Distress; Negligent Infliction of Emotional Distress; Invasion of Privacy" ¹ naming NBC, Norte, City's Fire Department as defendants. Plaintiffs prayed for general and special damages according to proof and punitive damages in the sum of $500,000.

On July 6, 1984, defendants NBC and Norte filed a notice of motion for summary judgment as to plaintiffs' second, third, fourth, fifth, sixth and seventh causes of action along with points and authorities.

On August 6, 1984, the superior court, after consideration of the moving and opposition papers, deemed defendants' motion to be a judgment on the pleadings and granted plaintiffs 15 days to amend with the following proviso: "Plaintiff[s] may plead one tort for each broadcast seen by each plaintiff and may plead trespass so long as damages are not based on the broadcast."

On August 21, 1984, plaintiffs filed a "First Amended Complaint for Damages" which essentially incorporates the allegations of the seven causes [187 Cal.App.3d 1471] of action in the original complaint (see fn. 1, supra) into three causes of action. ²

On August 31, 1984, defendants NBC and Norte filed a Notice of Motion and Motion for Judgment on the Pleadings, arguing that the amended complaint did not comply with the court's order of August 6, 1984 by improperly pleading several different tort actions arising out of each television [187 Cal.App.3d 1472] broadcast allegedly viewed by plaintiffs and was in contravention of the Uniform Publications Act section 3425.3.

On September 6, 1984, a mandatory settlement conference was conducted and the matter set for trial on December 4, 1984.

On September 20, 1984, the superior court denied defendants NBC and Norte's motion to strike the at-issue memorandum and the judgment on the pleadings.

(The record reflects that at this hearing defense counsel requested the trial be continued to allow time to prepare and file a motion for summary judgment and plaintiffs' counsel waived all time and notice requirements for the motion.)

On September 19, 1984, defendant City filed its answer to the first amended complaint, denying the complaint and affirmatively alleging that City's employees were given actual or implied consent to enter plaintiff Miller's residence, and that defendant City is immune from liability pursuant to Government Code sections 815.2 and 820.2 and Civil Code section 47.

On October 18, 1984, following extensive discovery including depositions, defendants NBC and Norte filed a "Notice of Motion and Motion for Summary Judgment or, in

the alternative, for Summary Adjudication." The moving papers included points and authorities in support of the motion and a "Statement of Undisputed Facts."

(The plaintiffs' "Appendix in Lieu of Clerk's Transcript on Appeal" does not include copies of exhibits attached to defendants' motion for summary judgment, consisting of extracts from depositions taken during discovery. Pursuant to rule 12(a), California Rules of Court, we have ordered up and reviewed the entire superior court file (No. C-324427), including copies of the portions of depositions referred to by defendants in their moving papers and plaintiffs' opposition papers.)

On November 6, 1984, plaintiffs filed a "Memorandum of Points and Authorities in Opposition to Motion for Summary Judgment or Summary Adjudication; Statement of Disputed and Undisputed Facts."

(Plaintiffs' opposition papers directs the court's attention to other portions of the depositions referred to by defendants in their moving papers and incorporates deposition testimony of Fire Captain Anthony R. Di Domenico of the Los Angeles City Fire Department and Douglas E. Brown, Senior Paramedic for the Bureau of Emergency Medical Service, Los Angeles City [187 Cal.App.3d 1473] Fire Department, along with a copy of "Defendants' Response to Plaintiffs' Third Set of Interrogatories.")

On November 13, 1984, defendants filed "Reply Memorandum of Points and Authorities in Support of Defendants' Motion for Summary Judgment," asserting that plaintiffs concede 1) "that they have no cause of action based upon the contents of the KNBC broadcast; 2) that they cannot as relatives, maintain an action based upon the KNBC broadcast depicting their relative; 3) and that the consoling telephone calls from friends and neighbors, which they naturally received after Mr. Miller's death, cannot give rise to an independent cause of action." (Emphasis original.)

Defendants further construe plaintiffs' memorandum in opposition to their motion for summary judgment as asserting that the amended complaint states a claim for an "intrusion," i.e., "invasion of privacy" by reason of the publicity of their deceased relative which caused emotional harm. Defendant also filed "Defendants' Response to Plaintiffs' Assertion of Various Material Facts in their Opposition to Defendants' Motion for Summary Judgment."

On November 16, 1984, counsel for all defendants (NBC, Norte and City) and plaintiffs presented oral argument; documentary evidence was introduced and the cause was submitted for decision.

On April 24, 1985, the court below, "after full consideration of the moving papers and responding papers, all supporting papers, and oral argument of counsel," signed and filed its "Judgment by Court and Statement of Decision."

In ruling in favor of defendants NBC and Norte and against plaintiffs, the court found plaintiffs' stated causes of action had no merit and presented no triable issues of fact. The court stated:

"1. Plaintiffs Brownie Miller and Marlene Belloni have no actionable claim for invasion of privacy, intentional infliction of emotional distress or negligent infliction of emotional distress based upon their alleged viewing of NBC broadcasts allegedly depicting their (now deceased) relative, Mr. Miller. Flynn v. Higham, 149 Cal.App.3d 677, 683, 197 Cal.Rptr. 145 (1983); Coverstone v. Davies, 38 Cal.2d 315, 239 P.2d 876 (1952); Hendrickson v. California Newspapers, Inc., 48 Cal.App.3d 59, 121 Cal.Rptr. 429 (1975); Grimes v. Carter, 241 Cal.App.2d 694, 702, 50 Cal.Rptr. 808 (1966).

"2. Defendants are entitled to summary judgment of Plaintiff Miller's cause of action for the alleged trespass by Ruben Norte and other employees [187 Cal.App.3d 1474] of Defendant National Broadcasting Company, Inc. because (1) there is no evidence that Defendants entered Plaintiff Miller's property maliciously; and (2) Plaintiff Miller suffered no actual damage as a result of the alleged entry."

On June 20, 1985, the superior court denied plaintiffs' motion for a new trial.

On July 8, 1985, plaintiffs timely filed their notice of appeal and notice of election to prepare appendix.

On February 3, 1986, by stipulation, the appeal against defendant City was dismissed.

THE SCENARIO

Defendant Norte, an NBC news field producer in charge of new stories and projects, was assigned a mini-documentary on fire department paramedics and their work. The mini-documentary was to run during the five weekdays for two weeks, airing for five minutes at the end of the 6 p.m. news, and about half that time on the 11 p.m. news. The first week concerned the paramedics' work generally. The second week focused on the administering of CPR by a paramedic team.

Norte, holding a University of Texas degree in Mass Communications, with field newspaper and television experience and five years as field producer for KNBC, commenced background work and research well in advance of the scheduled showing of the mini-documentary. Filming started four to five weeks before airing. In preparation of the documentary, Norte contacted not only the fire departments of the City and County of Los Angeles but also the paramedics...