Shulman v. Group W Productions, Inc., B081390

• Decision Date: 13 December 1996
• Docket Number: No. B081390,B081390
• Citation: 51 Cal.App.4th 850,59 Cal.Rptr.2d 434
• Court: California Court of Appeals Court of Appeals
• Parties: Previously published at 51 Cal.App.4th 850 51 Cal.App.4th 850, 25 Media L. Rep. 1289, 96 Cal. Daily Op. Serv. 9065, 96 Daily Journal D.A.R. 14,966 Ruth SHULMAN et al., Plaintiffs and Appellants, v. GROUP W PRODUCTIONS, INC., et al., Defendants and Respondents.

Page 434

59 Cal.Rptr.2d 434

Previously published at 51 Cal.App.4th 850

51 Cal.App.4th 850, 25 Media L. Rep. 1289,

96 Cal. Daily Op. Serv. 9065,

96 Daily Journal D.A.R. 14,966

Ruth SHULMAN et al., Plaintiffs and Appellants, v. GROUP W PRODUCTIONS, INC., et al., Defendants and Respondents.

No. B081390.

Court of Appeal, Second District, Division 5, California.

Dec. 13, 1996.

Rehearing Denied Jan. 9, 1997.

As Modified Jan. 13, 1997.

Review Granted April 2, 1997.

Paul & Stuart, Antony Stuart and William A. Daniels, Santa Monica, for Plaintiffs and Appellants.

Epstein Becker & Green, Janet Morgan, Mill Valley, and Terry M. Gordon, San Francisco, and Cornell Chulay, Los Angeles, for Defendants and Respondents Group W Productions, Inc. and 4MN Productions.

Tharpe & Howell, and Donald F. Austin, Ventura, for Defendant and Respondent Mercy Air.

GODOY PEREZ, Associate Justice.

Plaintiffs Ruth Shulman and Wayne Shulman appeal from the summary judgment granted for defendants Group W Productions, Inc., 4MN Productions and Mercy Air. For the reasons set forth below, we affirm the judgment as to Mercy Air, we reverse the judgment as to Group W and 4MN, direct the entry of summary adjudication of issues on their behalf, and remand the rest to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

On June 24, 1990, the Shulman family was injured when the car in which they were riding lost control along Interstate 10 in Riverside County, spun out of control and tumbled down an embankment into a drainage ditch on property owned by Caltrans. The car was driven by Beth Shulman. The passengers were Beth's father Leonard and the plaintiffs and appellants, her mother, Ruth Shulman, and her brother, Wayne Shulman. ¹

Ruth was pinned in the car--which had landed upside down--and was the most seriously injured. Firefighters, police officers and other rescue personnel were called to the scene and appellants had to be cut free from the car by the device known as "the jaws of life." In addition to the presence of numerous rescue personnel, the accident drew a crowd of onlookers who were able to view the scene from the freeway above.

A rescue helicopter owned and operated by defendant and respondent Mercy Air was dispatched to the scene pursuant to its licensing agreement with Riverside County. The flight nurse, who would perform the medical care at the scene and on the way to the hospital, was Laura Carnahan. Also on board was Joel Cooke, a video camera operator employed by defendants and respondents Group W Productions, Inc. and 4MN Productions ("the media defendants"). Cooke was recording the rescue operation for later broadcast as part of an episode of the television show "On Scene: Emergency Response."

Cooke roamed the accident scene, videotaping the rescue. Carnahan wore or carried a microphone which picked up her conversations with both Ruth and the other rescue personnel. Cooke's tape was eventually broadcast after being edited into an approximately nine-minute long segment. The segment begins with the Mercy Air helicopter on its way to the accident site. A narrator's voice is heard in the background, setting the scene and describing in general terms what has happened. The pilot can be heard speaking with rescue workers on the ground in order to prepare for his landing. As the chopper touches down, the narrator says "four of the patients are leaving by ground ambulance. Two are still trapped inside." This statement was wrong, since only four persons were in the car and only two were trapped inside--Ruth and Wayne.

After Carnahan steps from the helicopter, she can be seen and heard speaking with various rescue workers about the situation. A firefighter assures her they will be keeping an eye out for any fire from the wrecked car but cautions that there was some gasoline leaking.

The videotape shows little of Wayne--just two brief glimpses from a distance--and his features are not identifiable. His voice is never heard. Ruth is shown several times, but either from a distance, by brief shots of a limb or her torso, or with her features blocked by others or obscured by an oxygen mask. She is heard speaking several times, asking about her family and stating that she wished to die. Carnahan calls her "Ruthie" At 6 minutes, 38 seconds into the segment, Ruth and Wayne are placed in the helicopter and its door is closed. At 6 minutes, 57 seconds, with the chopper now airborne, the narrator states: "Once airborne, [Carnahan] and [the flight medic] will update their patient's vital signs and establish communications with the waiting trauma teams at Loma Linda." ² Carnahan, speaking into what appears to be a radio microphone, transmits some of Ruth's vital signs, stating that Ruth could not move her feet, that her pulse was 95 and her blood pressure 142 over 70 and that "[s]he was at one time about at 90 or 100 palpated and it was her lowest bp."

and Ruth states her age in response to a question by the flight nurse.

At 7 minutes, 38 seconds into the segment, Carnahan tells Ruth, "You're doing very well. We're going to the hospital emergency room. We're going to take care of you." At 7 minutes, 48 seconds, the helicopter lands atop the hospital. The video footage during the helicopter ride included several seconds of Ruth's face, which was covered by an oxygen mask. Wayne is neither shown nor heard.

At 8 minutes, 7 seconds into the segment, with the chopper door open, Ruth states while being taken out: "My upper back hurts." Carnahan replies: "You[r] upper back hurts. That's what you were saying up there." Ruth states: "I don't feel that great." Carnahan responds: "You probably don't."

From 8 minutes, 32 seconds until the segment ends about 15 seconds later, Ruth is shown being moved from the helicopter inside the hospital. Except for a brief shot of her face covered by the oxygen mask, she is either not visible or shot from a distance. The narrator concludes by stating: "Once inside both patients will be further evaluated and moved into emergency surgery if need be.... Thanks to the efforts of the crew of Mercy Air, the firefighters, medics and police who responded, patients' lives were saved." As the segment ends, a brief, written epilogue appears on the screen, stating: "Laura's patient spent months in the hospital. She suffered severe back injuries. The others were all released much sooner."

The accident left Ruth a paraplegic. About three months later, while still in the hospital recovering from her injuries, Wayne phoned Ruth in her hospital room and told her to turn on the television because " '... Channel 4 is showing our accident now.' ..." Shortly after, several hospital workers came into the room to mention that the videotaped segment of her accident was being shown during the broadcast of "On Scene: Emergency Response." Ruth was surprised since she did not know her rescue had been recorded in this manner and had never consented to the recording or broadcast.

Ruth and Wayne later sued Mercy Air and the media defendants. The operative first amended complaint included the following six causes of action: Two for invasion of privacy, one based on the defendants' unlawful intrusion by videotaping the rescue in the first instance and the second based on the public disclosure of private facts; two for commercial exploitation of their likenesses, one at common law and a statutory claim under Civil Code section 3344; one for intentional infliction of emotional distress; and one for injunctive relief seeking to bar further broadcast of the segment depicting Ruth's rescue. ³

In October 1993, the media defendants brought a summary judgment motion, contending primarily that under Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790 (hereafter "Dora "), their Appellants' initial response to this motion was to file one of their own, seeking leave to file a second amended complaint, contending they only recently discovered respondents' use of hidden microphones during the rescue, thus supporting a cause of action for eavesdropping under Penal Code sections 632, 634 and 637.2. ⁴ The proposed second amended complaint did not set out a separate cause of action under Penal Code section 637.2, however. Instead, those proposed allegations were included in the first cause of action for invasion of privacy by intrusion while the prayer for relief sought damages under the Penal Code provisions. In support of the Penal Code eavesdropping allegations, appellants also alleged that their communications with Carnahan were rendered confidential by Civil Code section 56, et seq., the Confidentiality of Medical Information Act. Under that act, various health care providers, including emergency medical technicians, are prohibited from disclosing a patient's medical information without authorization. (Civ.Code, §§ 56.05, subd. (d); 56.10, subd. (a).) ⁵

conduct was protected by the First Amendment to the United States Constitution.

The media defendants opposed the motion to amend the complaint, pointing out that appellants learned about their use of microphones no later than 10 months before, when Mercy Air's chief flight nurse testified to their use during her deposition. Mercy Air's opposition pointed out that the use of microphones had to have been known from the time of the broadcast itself, since their use was made obvious by the presence of Ruth's voice on the videotape. In any event, one of Mercy Air's lawyers attached a declaration stating that appellants' attorney told him in the summer of 1992 that Mercy Air was liable based on its use of microphones during the rescue of Ruth. With the discovery cut-off just six weeks after the motion for leave to amend would be heard and trial set to begin one month after that, respondents contended allowing the amendment would cause them undue prejudice by requiring further discovery and delaying the trial.

In reply, appellants contended that they were...