Seelig v. Infinity Broadcasting Corp.

Decision Date16 April 2002
Docket NumberNo. A094062.,A094062.
Citation119 Cal.Rptr.2d 108,97 Cal.App.4th 798
CourtCalifornia Court of Appeals Court of Appeals
PartiesJennifer SEELIG, Plaintiff and Respondent, v. INFINITY BROADCASTING CORPORATION et al., Defendants and Appellants.

SIMONS, J.

Reality television and talk radio are two of the more popular cultural phenomena of the new century. In the first, real people often compete for a prize under the most unrealistic, often demeaning conditions. In the second, a host discusses topics of current interest with live guests and call-in audience members. These discussions often, though not always, include generous portions of insult and invective. Given these programming themes, it was inevitable that a participant in a reality television competition would be insulted by a talk-radio host and sue for defamation.

The instant appeal involves such a suit. Defendants Infinity Broadcasting Corporation, Uzette Salazar, Vincent Crackhorn and Steve Dinardo filed a special motion to strike plaintiffs complaint and asserted that the suit constituted a SLAPP (strategic lawsuit against public participation) suit pursuant to Code of Civil Procedure section 425.16 (hereafter § 425.16). The trial court denied the motion. We conclude that the challenged commentary was made "in connection with an issue of public interest" (§ 425.16, subd. (e)(3) & (4)), even though much of it concerned plaintiffs unwillingness to appear on the radio program. Further, we determine that the insults uttered are not actionable under section 425.16 and reverse the order of the trial court.

Background1

Plaintiff participated as one of 50 contestants in the television program Who Wants to Marry a Multimillionaire (hereafter the Show). In this program, women contestants competed for the right to marry a wealthy stranger. In addition to the marriage, complete with a prenuptial agreement, the bride received a $35,000 wedding ring and a new car. Plaintiff was not chosen to marry the putative multimillionaire, nor even selected as one of the five finalists, though she did appear briefly as a contestant in a portion of the television broadcast. During her time on air, she stated only her name, that she was from San Francisco, and that she worked in sales at KFRC,2 a San Francisco radio station. Her total participation in the television broadcast lasted less than one minute. Though plaintiff was not paid for her participation in the Show, she received the cost of the trip to Las Vegas and some gifts.

The taping of the Show occurred before its airing on February 15, 2000, with all taping involving plaintiff being completed prior to February 1, 2000. To plaintiffs knowledge, her name and likeness were neither aired nor made public in any way by the producers of the Show before the television broadcast.

Defendant Uzette Salazar (Uzette) contacted plaintiff on or about February 1, 2000, and asked if she would participate in a discussion regarding the Show on KLLC's "Sarah and Vinnie" morning radio program. Plaintiff declined. She informed Uzette that she competed in the contest only as a personal experience, and that she did not wish to be interviewed on their radio program because she did not want to bring attention to herself or to chance being ridiculed or subjected to public humiliation. She also told Uzette that she was contractually prohibited from entering into any type of publicity concerning the Show.

On February 15, 2000, during the radio program, but before the Show was televised, the following colloquy occurred between Sarah Clark (Sarah)3 and Vincent Crackhorn (Vinnie), KLLC's morning broadcast cohosts, along with Uzette, the radio program's on-air producer:

"Vinnie: ... and what is this, the Marry A Millionaire show?

"Sarah: Who Wants to Marry a Millionaire?

"Vinnie: Right.

"Sarah: It's on tonight. Two hour long thing. Fifty chicks are gonna fight it out for the top five spots and then they all put on uh wedding gowns and somebody gets married at the end.

"Vinnie: Right. And we have uh, a local loser on the, on the prog—

"Sarah: m, uh hum—

"Vinnie: from what I heard.

"Uzette: (Laughter.)

"Vinnie: Now uh, this is, this is crackin me up because I'm not, and I'm not saying any names—

"Uzette: I know.

"Vinnie: Whatever.

"Uzette: Go ahead.

"Vinnie: But uh, this person apparently we were gonna have her on the show to see what her bucket's all about, why she wants to marry some random guy— "Sarah: Right.

"Vinnie: and she wouldn't come on without like, what—you tell me.

"Uzette: She wanted like some written consent that we weren't going to bag on her, and uh, she, she's just not, I don't think she's a real fan.

"Vinnie: Chicken butt!

"Uzette: She actually works at another station—

"Sarah: Oh really!

"Vinnie: Chicken butt!

"Uzette: and I found out more dirt about this girl, since we're not saying her name. She actually is the ex-wife of someone who works at our sister station down the hall. And uh yeh, he just says what a big skank she is.

"(Laughter.)

"Sarah: You can't say that! That, that is so ridiculous.

"(Laughter.)

"Sarah: You know what you guys, don't say any more because, ya know, because the person who's on that show, and people are going to be able to figure out who it is. You can't be calling people skank.

"Vinnie: No way.

"Sarah: Were you at that legal— PLEASE! You just gave all the clues anyone would ever need. I could figure it out and I am stupid.

"Uzette: Anyway, it is coming from a jilted ex-husband. What does he know.

"Sarah: Exactly Uzette.

"Vinnie: Right.

"Sarah: We were all in that same legal meeting. Ah, kill me!

"(Laughter.)

"Uzette: I think I covered my tracks.

"(Laughter.)

"Uzette: Boss?

"(Laughter.)

"Sarah: I hope so.

"Uzette: Please don't fire me now.

"Sarah: Oh God.

"Vinnie: Funny.

"Uzette: I am sure she's a very nice girl.

"Sarah: Right.

"Uzette: I don't, I don't think she won though.

"Sarah: Well right. If she did win I am sure she would be off on her honeymoon and not available for us to pick on.

"Vinnie: I just think it's so funny. A total chicken butt. Wanted to, you know it's like—

"Uzette: We rag, we rag on each other. "Vinnie: stand up for yourself if— "Sarah: Right.

"Vinnie: if you wanted to go on the show.

"Sarah: Tell us why, that is the whole thing.

"Vinnie: Yeah, state your, state your reasons.

"Sarah: So, you like money? We like it too. That's fine.

"Vinnie: Besides, all ya gotta do is tell me to shut up and walk away. What big deal.

"Sarah: Right.

"Vinnie: So that's so traumatic. Never heard anything like that in my life. Sign a freakin waiver so you won't call me names. Whatever. Anyway—

"Sarah: She's obviously in the business. Most people just come on and go whatever, what do you want to know. Oops.

"Uzette: And then they are sorry for it.

"(Laughter.)

"Vinnie: Anyway, the guy gets, tonight's the special. It was taped last week in Vegas. And it does feature a wedding. And the bride is unidentified at this point.

"Sarah: I can't, I ought, I think I am gonna watch this.

"Vinnie: And this guy and his new wife are currently on their honeymoon.

"Sarah: Good for them.

"Vinnie: Unbelievable.

"Sarah: I'm telling you. I think this is going to be a really fun thing to watch. Does he get to see their faces, and watch the whole thing as it happens?

"Vinnie: Hold on, let me see.

"Sarah: Or is he also in the dark like the old dating game. Where you had to ask just the questions and—cuz I know they don't get to see him.

"Vinnie: Um, doesn't say.

"Sarah: Alright. Well, two hours, it's on tonight. Jay Thomas is the host of it.

"Vinnie: Yeah, that's—that doesn't say the details. Yup."4

After the radio program, but before the airing of the Show, plaintiff received numerous telephone calls from individuals, business associates, and personal friends, stating that they were aware she had been humiliated on the broadcast. Plaintiff became extremely upset and angry with her ex-husband because she thought he had made the statements about her until he assured her he had not. Plaintiffs ex-husband was never asked if he thought plaintiff was a "skank" and he never stated to anyone connected with KLLC that his ex-wife was a skank. The statement Uzette attributed to him was false, and Uzette later apologized to him for stating he had called plaintiff a big skank.

As a result of the radio broadcast, plaintiff filed a complaint against defendants alleging causes of action for: (1) slander per se; (2) slander; (3) invasion of privacy; (4) negligent hiring, retention and supervision of employees; (5) and intentional infliction of emotional distress. The trial court sustained demurrers to the causes of action for slander and intentional infliction of emotional distress, without leave to amend, because they were duplicative of other claims within the complaint. This appeal follows defendants' unsuccessful concurrent motion to strike the complaint pursuant to section 425.16, subd. (b).

DISCUSSION
I. Overview Of California's Anti-SLAPP Statute

In 1992, the Legislature enacted section 425.16 in an effort to curtail lawsuits brought primarily "to chill the valid exercise of ... freedom of speech and petition for redress of grievances" and "to encourage continued participation in matters of public significance." (§ 425.16, subd. (a).) The section authorizes a special motion to strike "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue ...."(§ 425.16, subd. (b)(...

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