SimTel Communications v. National Broadcasting Co., Inc.

• Decision Date: 30 April 1999
• Docket Number: No. B109530,B109530
• Citation: 71 Cal.App.4th 1066,84 Cal.Rptr.2d 329
• Court: California Court of Appeals Court of Appeals
• Parties: , 27 Media L. Rep. 1865, 99 Cal. Daily Op. Serv. 3194, 1999 Daily Journal D.A.R. 4103 SIMTEL COMMUNICATIONS et al., Plaintiffs and Appellants, v. NATIONAL BROADCASTING COMPANY, INC. et al., Defendants and Respondents.

Page 329

84 Cal.Rptr.2d 329

71 Cal.App.4th 1066, 27 Media L. Rep. 1865,

99 Cal. Daily Op. Serv. 3194,

1999 Daily Journal D.A.R. 4103

SIMTEL COMMUNICATIONS et al., Plaintiffs and Appellants, v. NATIONAL BROADCASTING COMPANY, INC. et al., Defendants and Respondents.

No. B109530.

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

April 30, 1999.

Review Denied July 21, 1999.

Neville L. Johnson & Associates and Neville L. Johnson; David A. Elder for Plaintiffs and Appellants Stephen F. Wilkins and Thomas R. Scott.

Anne H. Egerton; Irell & Manella LLP and Henry Shields, Jr., Los Angeles, for Defendants and Respondents National Broadcasting Company, Inc., Jane Pauley,

Lea Thompson, San Diego, Jack Cloherty and Sandra Surles.

KITCHING, J.

This case arises from a 1994 Dateline NBC news report that investigated the then-growing practice of charging for services on so-called "toll-free" 800 lines, often without the knowledge of the person billed for the services. Many of the 800 lines provided the caller with access to 900-number type adult entertainment lines. SimTel Communications (SimTel) leased and programmed 800 and 900 lines, and then sold them to investors.

In connection with Dateline NBC 's investigation, two NBC producers responded to SimTel's national advertisement in USA Today for investors and arranged to meet with a SimTel salesperson. The producers did not reveal their association with Dateline NBC. They met with SimTel representatives Steve Wilkins (Wilkins) and Thomas Scott (Scott) at a restaurant in Malibu and videotaped the lunch meeting with hidden cameras. Portions of the videotape appeared in a subsequent television broadcast.

Wilkins and Scott asserted claims for intrusion, unlawful recording of confidential communications, fraud, and various other causes of action against NBC and its producers (collectively referred to as NBC). The trial court granted summary judgment in favor of NBC. The trial court also denied Wilkins and Scott's motion for a new trial and assessed discovery sanctions against them and their counsel. Wilkins and Scott appeal.

We find as a matter of law plaintiffs have not raised triable issues of fact regarding their causes of action for intrusion, violation of Penal Code section 632, fraud, public disclosure of private facts, intentional infliction of emotional distress or negligent infliction of emotional distress. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 4, 1994, NBC broadcast a report on its program Dateline NBC entitled "Hardcore Hustle." The "Hardcore Hustle" report was the first in a three-part Dateline NBC series about the "pay-per-call" industry.

In connection with the preparation of the "Hardcore Hustle" report, Dateline NBC producer Jack Cloherty (Cloherty) called SimTel, a pay-per-call provider, in response to one of its national newspaper advertisements. He spoke with SimTel salesperson Scott. Scott subsequently spoke on the telephone with a woman whom he later learned to be Dateline NBC associate producer Sandra Surles (Surles). Neither Cloherty nor Surles told Scott that they worked for Dateline NBC. Surles told Scott that she and Cloherty were coming to California. They arranged to meet to discuss SimTel's business.

A lunch meeting took place at an outside patio table at a restaurant in Malibu. Cloherty and Surles brought two additional people with them to lunch. Scott brought his supervisor, sales manager Wilkins. Wilkins had not previously spoken with Cloherty or Surles. Neither Scott nor Wilkins asked about the two additional people that Cloherty and Surles brought with them, nor did they inquire if these two persons were interested in purchasing SimTel's products.

At the lunch meeting, Wilkins explained how SimTel conducted business and how its 800- and 900-number products worked. The parties discussed SimTel's products. NBC videotaped the lunch meeting with hidden cameras. NBC later broadcast brief excerpts of the videotape footage in its "Hardcore Hustle" report.

On August 1, 1995, SimTel, Wilkins, and Scott filed a complaint against the National Broadcasting Company, Inc., KNBC-TV, Jane Pauley, Lea Thompson, Jack Cloherty, Cindy Kuhn and Geoffrey's Malibu. ¹ They alleged causes of action for (1) physical intrusion on solitude or into private affairs (intrusion); (2) fraud and conspiracy to commit fraud; (3) conspiracy to commit and intentional infliction of emotional distress; (4) On October 4, 1996, Wilkins and Scott moved for summary adjudication on the second cause of action for fraud. On October 4, 1996, NBC moved for summary judgment on Wilkins and Scott's complaint. The trial court denied Wilkins and Scott's motion and granted NBC's motion. ⁴

                negligent infliction of emotional distress;  (5) unlawful eavesdropping on or recording of confidential communications (Pen.Code, §§ 632, subd.  (a), 634, 637.2);  (6) public disclosure of private facts;  (7) violation of right of privacy (Cal.  Const., art. 1, § 1);  (8) trade libel and conspiracy to commit the same;  (9) conspiracy to interfere with and interference with prospective economic advantage and contractual relations;  (10) unfair business practices; 2  and (11) conspiracy to commit and defamation;  (12) false light and intention to commit false light. 3  The gravamen of the complaint was that NBC's secret videotape of Wilkins and Scott constituted an unwarranted invasion of their privacy
                

Judgment was entered on November 14, 1996. On December 27, 1996, the trial court denied Wilkins and Scott's motion for a new trial.

Wilkins and Scott timely filed a notice of appeal.

DISCUSSION

1. Summary Judgment Was Properly Granted in Favor of NBC.

a. Standard of Review

Summary judgment is granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285, 44 Cal.Rptr.2d 335.) "Review of summary judgment ... 'involves pure matters of law,' which we review independently. [Citations.]" (Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 953, 41 Cal.Rptr.2d 573.) In conducting this de novo review, "we will consider only the facts properly before the trial court at the time it ruled on the motion. [Citation.]" (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601, 50 Cal.Rptr.2d 431.)

"As a summary judgment motion raises only issues of law regarding the construction and effect of supporting and opposing papers, this court independently applies the same three-step analysis required of the trial court. We identify issues framed by the pleadings; determine whether the moving party's showing established facts that negate the opponent's claim and justify a judgment in the moving party's favor; and if it does, we finally determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citations.]" (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342, 67 Cal.Rptr.2d 726.)

"Under the current version of the summary judgment statute, a moving defendant need not support his [or her] motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may (through factually vague discovery responses or otherwise) point to the absence of evidence to support the plaintiff's case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable " '[B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable. [Citation.] Therefore, summary judgment is a favored remedy [in such cases]....' [Citations.] Nonetheless, the basic question raised on a defense motion for summary judgment, and on review of such judgment, is the same in a privacy action against media defendants as in other cases: Does the motion record demonstrate the existence of triable issues of fact, or was the defense entitled to judgment as a matter of law?" (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 228, 74 Cal.Rptr.2d 843, 955 P.2d 469.)

issue of material fact. If the plaintiff is unable to meet [his or] her burden of proof regarding an essential element of [his or] her case, all other facts are rendered immaterial. [Citations.]" (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 482, 50 Cal.Rptr.2d 785; italics in original.)

b. Tort of Intrusion

Wilkins and Scott contend that NBC invaded their privacy by intrusion into their solitude, seclusion or private affairs by videotaping them at the lunch meeting. We disagree.

Our Supreme Court in Shulman v. Group W Productions, Inc., supra, 18 Cal.4th at pages 230-232, 74 Cal.Rptr.2d 843, 955 P.2d 469 has recently discussed the tort of intrusion as follows: "Of the four privacy torts identified by Prosser, the tort of intrusion into private places, conversations or matter is perhaps the one that best captures the common understanding of an 'invasion of privacy.' It encompasses unconsented-to physical intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying. [Citation.]" It is in the intrusion cases that invasion of privacy is most clearly seen as an affront to individual dignity....

"[T]he action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.... [p] ... To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surroundings, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data...