Ruth SHULMAN et al., Plaintiffs and Appellants, v. GROUP W PRODUCTIONS, INC., et al., Defendants and Respondents.
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” and Ruth states her age in response to a question by the flight nurse.
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.”
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 conduct was protected by the First Amendment to the United States Constitution.
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
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 entitled to wait to seek leave to amend as long as they had because they were unable to positively confirm the use of microphones until respondents lost a long-standing discovery dispute and were forced to admit to their use shortly before the motion to amend was brought.
Appellants' motion for leave to amend was set for hearing on November 16, 1993, the same date as the hearing on the media defendants' summary judgment motion. In opposition to the summary judgment motion, appellants admitted that the following were undisputed facts: The publication at issue was the broadcast of the “On Scene: Emergency Response” episode showing the videotape of Ruth's rescue; that an account of the accident and rescue appeared in a San Bernardino area newspaper after the rescue and before the broadcast; that Mercy Air was dispatched to the scene by Riverside County officials pursuant to Mercy Air's licensing agreement with the county; and that auto accidents on public highways and publicly provided emergency rescue and medical services were both matters of public interest which constituted public affairs.
Even so, appellants contended that the First Amendment did not protect the respondents' conduct because they both intruded on and unlawfully recorded confidential patient communications. Their communications were rendered confidential, they contended, by both Civil Code section 56.10 and by the physician-patient privilege of Evidence Code section 992. As opposed to the intrusion aspect of appellants' privacy claims, they contended that the broadcast of Ruth's rescue lost any First Amendment protections because: (1) while a general account of the accident and rescue was newsworthy, the close-up shots of appellants' suffering was not; (2) the videotape was made at an accident site closed to the public and that the rescue was therefore not in the public view; (3) the Mercy Air helicopter was a private place which was closed to the public; and (4) the broadcast was not truthful because it falsely stated that six persons were injured instead of four, falsely stated that gasoline was dripping from the Shulman's wrecked car, and was edited for dramatic effect by shifting recorded portions of Ruth's exclamations of pain from the points at which they really occurred to other points on the tape and by adding certain siren and other sound effects.
By minute order dated November 16, 1993, the court granted the media defendants' summary judgment motion and placed appellants' motion to amend off calendar as moot. The court signed and filed a formal order on December 20, 1993, basing its order on appellants' admission to the undisputed facts that the rescue was a matter of public interest and public affairs, therefore vesting the media defendants' conduct with First Amendment protection under Dora, supra, 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790, and Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 201 Cal.Rptr. 665. The order stated that the additional facts raised by appellants in opposition to the motion, relating primarily to the use of hidden microphones and the purported falsehoods or dramatic distortions of the videotaped segment, “do not raise a triable issue because they are neither material, relevant, nor supported by admissible evidence.” Judgment for the media defendants was entered the same day, along with an order denying appellants' motion for leave to amend their complaint.
One week before the hearing on the media defendants' summary judgment motion, Mercy Air brought one of its own. Mercy Air's motion was based on the following contentions: (1) since the subject matter of the rescue was newsworthy or a matter of public interest, appellants' claims were barred under both Dora and the First Amendment; (2) Ruth's rescue was videotaped either in full public view or in the helicopter owned by Mercy Air itself, without the trespass which Mercy Air contended case law required to succeed on a claim for invasion of privacy by intrusion; (3) appellants were neither identified nor identifiable; and (4) Mercy Air was not paid for the videotaping and could not be held liable for commercial exploitation of appellants' likenesses or subject to an injunction barring further broadcast of Ruth's rescue for the simple reason that they were not broadcasters and did not control or use the videotape.
In response, appellants incorporated by reference their points and authorities in opposition to the media defendants' summary judgment motion. Appellants' response to Mercy Air's statement of undisputed facts admitted the general public affairs nature of automobile accidents and public rescue efforts. They also admitted, among others, that their car landed on property owned by Caltrans in which they had no legally recognized possessory interest and that the episode of “On Scene: Emergency Response” at issue in their action did not use their names, voices or photographs on or in a product to sponsor that product. Appellants contended, however, that Ruth's likeness and voice were discernible, that the accident scene was closed to the public and that the Mercy Air helicopter was in effect their private hospital room, that Mercy Air received valuable consideration for the videotape by virtue of the free, positive publicity it generated, and that Mercy Air in effect controlled the videotaping and broadcast of the rescue because it gave its consent to it and could have withdrawn that consent at any time.
Mercy Air's motion was granted by minute order dated December 19, 1993. A formal written order was signed by the court and entered on December 27, 1993. In that order, the court noted that it relied on the materials submitted in connection with the media defendants' earlier summary judgment motion and found that all 47 of Mercy Air's statements of undisputed fact were just that—undisputed. The court held that there was no causation because Mercy Air did not broadcast the videotape, that under Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 232 Cal.Rptr. 668 (hereafter “Miller ”), the lack of any actionable trespass precluded appellants' claims, and that under Dora, supra, 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790, each of appellants' claims was barred by the First Amendment. Judgment for Mercy Air was entered the same day.
On January 4, 1994, the media defendants submitted a cost bill of $361,822.05, calculated as follows: For filing and motions fees, $677; for deposition costs, $8,670.66; for service of process, $470; for witness fees, $584.43; for various expenses such as phones, telecopiers, air couriers, travel, secretarial overtime, expert fees, meals, postage, messenger services and computerized research, $30,332.46; and for attorney's fees pursuant to Civil Code section 3344, $321,087.50.6
Appellants brought a motion to tax those costs on a variety of grounds, but that motion was denied and the media defendants were awarded costs of $353,143.05.7 Mercy Air filed a cost bill of $33,645.06 and later stipulated with appellants to tax those costs by $1,300. Accordingly, the award of costs to Mercy Air has not been appealed. Appellants do contest the propriety of the two summary judgments, the denial of their motion for leave to amend the first amended complaint, and the denial of their motion to tax the media defendants' costs bill.
STANDARD OF REVIEW
Summary judgment is ordinarily granted when a moving party establishes the right to entry of judgment as a matter of law. (Code Civ.Proc., § 437c, subd. (c).) In reviewing an order granting summary judgment, we must assume the role of the trial court and redetermine the merits of the motion. In doing so, we must strictly scrutinize the moving party's papers. (Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 549, 5 Cal.Rptr.2d 674.) The declarations of the party opposing summary judgment, however, are liberally construed to determine the existence of triable issues of fact. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1556, 8 Cal.Rptr.2d 552.) All doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment. (Ibid.)
While the appellate court must review a summary judgment motion by the same standards as the trial court, it must independently determine as a matter of law the construction and effect of the facts presented. (Saldana v. Globe–Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1510–1511, 1513–1515, 285 Cal.Rptr. 385.)
A defendant moving for summary judgment meets his burden of proof of showing that a cause of action has no merit if that party shows that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the action. (Code Civ.Proc., § 437c, subd. (o)(2).) Once the defendant does so, the burden shifts back to the plaintiff to show that a triable issue of one or more material facts exist as to that cause of action or defense. In doing so, the plaintiff cannot rely on the mere allegations or denial of his pleadings, “but, instead, shall set forth the specific facts showing that a triable issue of material fact exists․” (Ibid.; see Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653.)
Since this case implicates First Amendment free press concerns, however, a different standard applies: Because of the potential chilling effect a lawsuit might have, summary judgment is instead a favored remedy which will be granted unless the plaintiff opposing the motion shows a high probability of prevailing at trial. (Miller, supra, 187 Cal.App.3d at p. 1479, 232 Cal.Rptr. 668.)
1. Leave To Amend Was Properly Denied
An order granting or denying a motion for leave to amend a complaint will only be reversed for a manifest or gross abuse of discretion. (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135, 125 Cal.Rptr. 59; Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939, 119 Cal.Rptr. 82.) “The law is also clear that even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. The cases indicate that the denial may rest upon the element of lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party [citations].” (Roemer v. Retail Credit Co., supra, 44 Cal.App.3d at pp. 939–940, 119 Cal.Rptr. 82.) By the same token, on a motion for summary judgment, amended pleadings should be liberally allowed if they do not “completely and entirely depart from the general area of the cause set up in the pleadings. [Citations.]” (Residents of Beverly Glen, Inc. v. City of Los Angeles (1973) 34 Cal.App.3d 117, 128, 109 Cal.Rptr. 724.)
While these competing principles tug us in different directions, the evidence of appellants' long delay in seeking to amend their complaint leads us to weigh in on the side of the trial court. We are aware of neither statutes nor case law which require that a plaintiff seek confirmation or conclusive proof of an allegation before amending his complaint to include that allegation. We agree with respondents that the use of microphones to record appellants' conversations with rescue personnel was readily apparent from the videotape of that rescue. They certainly knew enough no later than 10 months before bringing their motion to amend, when Mercy Air's chief flight nurse testified during her deposition to the use of those microphones.8 Further, since unauthorized videotaping is actionable under Penal Code section 632 (People v. Gibbons (1989) 215 Cal.App.3d 1204, 1207–1209, 263 Cal.Rptr. 905), appellants could have properly alleged such a claim from the outset but chose not to do so until shortly before trial.
While the trial court properly denied appellants' leave to amend their complaint, however, the question remains whether the factual matters which they sought to allege should have been considered by the trial court even absent an amended pleading. The purpose of a summary judgment motion is to allow a party to show that material factual claims arising from the pleadings are not in dispute. The function of the pleadings in such a motion is to define the scope of the issues and the function of the affidavits or declarations is to determine whether there are any triable issues of fact within the issues raised by the pleadings. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381, 282 Cal.Rptr. 508.) The materiality of a factual issue is “ ‘determined mainly by the pleadings, the rules of pleading, and the substantive law relating to the particular kind of case.’ [Citation.]” (Andalon v. Superior Court (1984) 162 Cal.App.3d 600, 604, fn. 3, 208 Cal.Rptr. 899.)
As we discuss in detail post, one key component of a privacy claim is the plaintiffs' reasonable expectation of privacy. At issue in this case is whether appellants, Ruth in particular, could reasonably expect that they would not be videotaped while speaking with the Mercy Air rescue workers. Thus, the new factual allegations of the proposed second amended complaint—that appellants' conversations with their paramedic health care providers might have been confidential and that those conversations were intruded upon by being videotaped—fell within both the more general invasion of privacy allegations of the operative first amended complaint and the substantive law applicable to such claims. The trial court should have considered admissible evidence relative to those factual allegations, as will we.
2. Invasion Of Privacy
There is no need for us to trace in detail the historical and jurisprudential roots of the right to privacy since that spadework has been amply performed by others.9 It is enough for our purposes to note that California provides twin remedies when that right has been invaded—at both common law and pursuant to California Constitution, article I, section 1.
The common law tort of invasion of privacy was best defined and categorized by Dean W.L. Prosser, who described four distinct privacy interests: “1. Intrusion upon the plaintiff's seclusion or solitude, or into his private affairs. [¶] 2. Public disclosure of embarrassing private facts about the plaintiff. [¶] 3. Publicity which places the plaintiff in a false light in the public eye. [¶] 4. Appropriation, for the defendant's advantage, of the plaintiff's name or likeness.” (Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389.) Prosser's analysis has been widely adopted by, among others, the Restatement Second of Torts. The Restatement's analysis has, in turn, been adopted by our courts. (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 24, 26 Cal.Rptr.2d 834, 865 P.2d 633, hereafter “Hill.”)
Each of Prosser's four categories “identifies a distinct interest associated with an individual's control of the process or products of his or her personal life. To the extent there is a common denominator among them, it appears to be improper interference (usually by means of observation or communication) with aspects of life consigned to the realm of the ‘personal and confidential’ by strong and widely shared social norms.” (Hill, supra, 7 Cal.4th at pp. 24–25, 26 Cal.Rptr.2d 834, 865 P.2d 633.) In this section, we will discuss only the first two categories—invasion of privacy by intrusion and invasion of privacy by the public disclosure of private facts. Appellants' cause of action for commercial exploitation of their likenesses will be discussed separately post.
A common law claim for intrusion requires that one intentionally intrude, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns. The intrusion must also be highly offensive to a reasonable person. (Miller, supra, 187 Cal.App.3d at p. 1482, 232 Cal.Rptr. 668; Rest.2d Torts, § 652B.) In determining the existence of “offensiveness,” a court should “consider the degree of intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectation of those whose privacy is invaded.” (Miller, supra, 187 Cal.App.3d at pp. 1483–1484, 232 Cal.Rptr. 668.)
There are three required elements for a common law claim based on the public disclosure of private facts: (1) the disclosure must have been public; (2) the facts disclosed must have been private, not public; and (3) the matter made public must have been offensive and objectionable to a reasonable person of ordinary sensibilities. (Forsher v. Bugliosi (1980) 26 Cal.3d 792, 808–809, 163 Cal.Rptr. 628, 608 P.2d 716.)
The common law right of privacy is limited by certain principles. Determining whether a defendant's conduct was highly offensive imposes an objective test, emphasizing the “objective context” of the alleged invasion. (Hill, supra, 7 Cal.4th at p. 25, 26 Cal.Rptr.2d 834, 865 P.2d 633.) This includes: “(1) the likelihood of serious harm, particularly to the emotional sensibilities of the victim; and (2) the presence or absence of countervailing interests based on competing social norms which may render the defendant's conduct inoffensive; e.g., a legitimate public interest in exposing and prosecuting serious crime that might justify publication of otherwise private information or behavior.” (Id. at pp. 25–26, 26 Cal.Rptr.2d 834, 865 P.2d 633, fn. omitted.)
In addition, the plaintiff must have had both an actual, subjective, and an objectively reasonable expectation of privacy. The former focuses on the existence of any implied or express consent to the invasion or whether the plaintiff voluntarily entered into the public sphere. The latter looks to all the surrounding circumstances and views them in light of any competing social interests. (Id. at pp. 26–27, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Article I, section 1 of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” The phrase “and privacy” was added through an initiative approved by the voters on November 7, 1972 (“the Privacy Initiative”). The state constitutional right of privacy protects against both state and private action. It is a self-executing provision which confers on all Californians a judicial right of action. (Id. at pp. 15, 18, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
The plaintiff bringing an action under the Privacy Initiative must establish: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. (Id. at pp. 39–40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
As to the first of these three elements, the Hill court classified two distinct privacy interests—“informational privacy” to prevent improper collection and dissemination of private information—and “autonomy privacy” to prevent unwarranted intervention, interference or observation with regard to certain private matters. (Id. at pp. 36–37, 40–41, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
In evaluating the second requirement—whether the plaintiff had a reasonable expectation of privacy—the Hill court looked to the Restatement's objective test, which is “founded on broadly based and widely accepted community norms. [Citation.]” (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) A privacy interest is not independent of the circumstances and even when such an interest exists, other factors may affect a person's reasonable expectation of privacy. “For example, advance notice of an impending action [such as police sobriety checkpoints] may serve to ‘ “limit [an] intrusion upon personal dignity and security” ’ that would otherwise be regarded as serious. [Citation.] [¶] In addition, customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy. [Citations.]” (Id. at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
The third requirement—that the invasion be a serious one—was needed to prevent the ordinary and slight intrusions which are a normal part of community life from giving rise to privacy claims. (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Whether a legally recognized privacy interest exists is a question of law for the court. Whether the plaintiff has a reasonable expectation of privacy under the circumstances and whether the alleged invasion was sufficiently serious present mixed questions of law and fact. If the material facts relating to these issues are undisputed, however, the question may be decided as a matter of law. (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Because privacy concerns are not absolute, the Hill court held that such concerns must be balanced against other important interests. Accordingly, a defendant in an action brought under the Privacy Initiative can prevail by establishing as an affirmative defense that the invasion of privacy was justified because it substantively furthered one or more countervailing interests. (Id. at pp. 37, 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
With the exception of privacy claims based on actions which affect interests fundamental to personal autonomy, the court expressly rejected case law which held that a compelling state interest must be shown in order to justify the privacy invasion.10 In all other cases, “[t]he diverse and somewhat amorphous character of the privacy right necessarily requires that privacy interests be specifically identified and carefully compared with competing or countervailing privacy and nonprivacy interests in a ‘balancing test.’․” (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) If the invasion is justified by a competing interest, there is no privacy violation under the Privacy Initiative. “Legitimate interests derive from the legally authorized and socially beneficial activities of government and private entities. Their relative importance is determined by their proximity to the central functions of a particular public or private enterprise. Conduct alleged to be an invasion of privacy is to be evaluated based on the extent to which it furthers legitimate and important competing interests․” (Id. at p. 38, 26 Cal.Rptr.2d 834, 865 P.2d 633.) This balancing, the court pointed out, was “central” to privacy law. (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
If the defendant establishes the existence of such a competing interest, the burden shifts to the plaintiff to show the availability of less intrusive alternatives to the defendant's conduct. (Hill, supra, 7 Cal.4th at pp. 38, 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The existence of a sufficient competing interest or an alternative course of conduct are threshold questions of law for the court. The relative strength of the competing interest and the feasibility of alternatives present mixed questions of law and fact. Where the material facts are undisputed, however, those questions may also be decided as matters of law. (Id. at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
The common law right of privacy does not circumscribe its state constitutional counterpart. For example, while the common law requires that a disclosure of private facts be widely published, the Privacy Initiative may be invaded in some instances by less than public disclosures. (Id. at p. 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Even so, the parameters of the state constitutional privacy right are extensively derived from those of the common law right.
In construing the Privacy Initiative, the Hill court noted that the term “privacy” had to be construed as previously done by the courts. (Hill, supra, 7 Cal.4th at p. 23, 26 Cal.Rptr.2d 834, 865 P.2d 633.) “[I]n order to discern the meaning of ‘privacy’ as used in the Privacy Initiative, we must examine the various legal roots of the privacy concept.” (Ibid.) The Hill court drew upon the common law because its “insistence on objectively reasonable expectations of privacy based on widely shared social norms, serious violations of those expectations, and thorough consideration of competing interests, is an invaluable guide in constitutional privacy litigation.” (Id. at p. 27, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The Hill court also observed that “[w]hether established social norms safeguard a particular type of information or protect a specific personal decision from public or private intervention is to be determined from the usual sources of positive law governing the right to privacy—common law development, constitutional development, statutory enactment, and the ballot arguments accompanying the Privacy Initiative.” (Id. at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
In defining the term “reasonable expectation of privacy,” the Hill court turned, among others, to the Restatement definition which applies to the common law tort. (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The balancing of interests test set forth by the Hill court for claims under the Privacy Initiative draws heavily upon the balancing test described by the court when discussing the common law cause of action. (Id. at pp. 26–27, 37–38, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Finally, as the Hill court observed, “[t]he comparison and balancing of diverse interests is central to the privacy jurisprudence of both common and constitutional law.” (Id. at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
Thus, in regard to the issues which we find determinative here—whether appellants had a reasonable expectation of privacy and whether their claims are outweighed by a competing First Amendment interest—the two causes of action are identical. We next examine the propriety of granting summary judgment on the two invasion of privacy claims by dividing those claims before and after one critical point in time—when appellants were placed inside the Mercy Air helicopter for transport to the hospital.
3. Appellants' Privacy Was Not Invaded By Videotaping Or Broadcasting Events At The Accident Scene Itself
As noted, an objectively reasonable expectation of privacy is a key component of a privacy claim based upon an intrusion. A privacy claim based on the public disclosure of private facts requires that the facts disclosed had actually been private. Given the strong First Amendment policy favoring news coverage of auto accidents and other catastrophes, combined with the public setting of appellants' accident, to the extent appellants' claims are based on respondents' conduct in videotaping and broadcasting what took place at the accident scene itself, summary judgment was properly granted.
Though an individual's right of privacy must be weighed and balanced against the public's right to news and information, “[i]t is clear that as current news occurs those involved in the happening may be named and discussed in newspapers or over the air even though the process actually invades the privacy of the individual. If a householder is burglarized, or a pedestrian is held up and robbed in the street, or two automobiles collide at an intersection, news media may properly give an account of what happened even though the individual objects․” (Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 745–746, 20 Cal.Rptr. 405.) This First Amendment privilege is not restricted to current events and, despite the mere lapse of time, the media “may legitimately inform and entertain the public with the reproduction of past events, travelogues and biographies.” (Id. at p. 746, 20 Cal.Rptr. 405.)
Involuntary public figures, such as accident victims, lose their right to privacy not only in regard to the accident itself but, to some extent, to other information as well: “These persons are regarded as properly subject to the public interest, and publishers are permitted to satisfy the curiosity of the public as to its heroes, leaders, villains and victims․ As in the case of the voluntary public figure, the authorized publicity is not limited to the event that itself arouses the public interest, and to some reasonable extent includes publicity given to facts about the individual that would otherwise be purely private.” (Rest.2d Torts, § 652D, com. f.) To illustrate this point, the Restatement says: “A is run down in the street by an automobile and taken to a hospital. B newspaper publishes an account of the accident, together with a picture of A taken by a reporter after the event. This is not an invasion of A's privacy.” (Rest.2d Torts, § 652D, com. f, illus. 14.)
Appellants' accident occurred on a heavily-travelled public highway and their car came to rest in an adjacent embankment on property owned by the state. The videotape itself shows a crowd of onlookers peering down at the rescue scene below. Appellants could be seen and heard by anyone at the accident site itself and could not have had a reasonable expectation of privacy at the scene in regard to what they did or said. Their statements or exclamations could be freely heard by all who passed by and were thus public, not private.
We sympathize with appellants' displeasure at the videotaping and broadcast of their rescue, but reject their contention that some zone of privacy existed at the accident site itself simply because their car was partially obscured by the surrounding terrain and foliage or because onlookers might have been prevented from walking around the rescue scene itself. The natural corollary to this contention is that, had the accident been confined to the roadway and no restrictions placed on spectators, videotaping or photographing their rescue would have been permissible. We decline to hinge the media's right to freely report accidents and other catastrophes on such chance distinctions. To hold otherwise would lead to absurd results—the victim of a hiking accident whose rescue from rough and inaccessible terrain was videotaped could sue for invasion of privacy while his counterpart struck down on the sidewalk or street would have no privacy right from media coverage of his misfortune. Such a rule would not only be unworkable, it would confound the strong First Amendment privilege which applies to news coverage of such events.11
Appellants' intrusion claim is also based on the contention that their conversations with Carnahan were confidential, either under the physician-patient privilege of Evidence Code section 992 or under the Confidentiality of Medical Information Act, Civil Code section 56 et seq. (“the CMIA”). Because they were speaking with health care providers about their medical conditions, appellants contend they had a reasonable expectation of privacy surrounding their statements. A patient has a reasonable expectation of privacy sufficient to support an invasion of privacy claim for communications protected by the physician-patient privilege. (Board of Medical Quality Assurance v. Gherardini (1979) 93 Cal.App.3d 669, 678–679, 156 Cal.Rptr. 55.) A disclosure or misuse of medical information which violates the CMIA will likewise support an invasion of privacy claim. (Pettus v. Cole (1996) 49 Cal.App.4th 402, 440–447, 457–462, 57 Cal.Rptr.2d 46.)
As to the physician-patient privilege, it only applies to communications between a patient and his doctor. No reported California decision has extended the privilege to paramedics and three states have expressly declined to do so unless they were working under the direction of or as agents for a physician. (Med–Express, Inc. v. Tarpley (La.1993) 629 So.2d 331, 332; State v. LaRoche (1982) 122 N.H. 231, 442 A.2d 602, 603; State v. Cahoon (1990) 59 Wash.App. 606, 609–611, 799 P.2d 1191.) Appellants do not contend, and there is no evidence which shows, that Carnahan was working as the agent for or under the supervision of any physician while the rescue was in progress, defeating appellants' reliance on Evidence Code section 992.
The CMIA was originally enacted in 1979 “ ‘to provide for the confidentiality of individually identifiable medical information, while permitting certain reasonable and limited uses of that information.’ (Stats. 1981, ch. 782, § 1, p. 3040.)” (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 38, 32 Cal.Rptr.2d 200, 876 P.2d 999.) That act was later repealed and reenacted in 1981 to correct and clarify certain ambiguities. (Ibid.)
The CMIA defines “medical information” as “any individually identifiable information in possession of or derived from a provider of health care regarding a patient's medical history, mental or physical condition, or treatment.” (Civ.Code, § 56.05, subd. (b).) Health care providers may not disclose such medical information unless the patient consents by way of a signed authorization or the disclosure falls within certain statutory exemptions. (Civ.Code, § 56.10, subds. (a), (b), (c).)
In 1984, emergency medical technicians and paramedics certified pursuant to Health and Safety Code section 1797, et seq. were added to the list of health care providers obliged to abide by the CMIA. (Civ.Code, § 56.05, subd. (d); see Historical and Statutory Notes, West's Ann. Civ.Code, § 56.05 (1996 pocket supp.) p. 100.) In 1983, the radio communication of a patient's medical information by paramedics acting during an emergency situation was exempted from the CMIA. (Civ.Code, § 56.10, subd. (c)(1); see Historical and Statutory Notes, West's Ann. Civ.Code, § 56.10 (1996 pocket supp.) p. 102.)
We will not reach this issue, however, because appellants have failed to raise any argument on this point. Aside from a reference in passing to Civil Code section 56.10 as the basis for their claim of confidentiality, appellants' brief does not discuss the statutory provisions of the CMIA, the few cases which have interpreted them, or their applicability to the facts at issue here.12 The failure to adequately discuss or argue an issue amounts to a waiver of that issue.13 (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 624, 12 Cal.Rptr.2d 741; In re Marriage of Laursen & Fogarty (1988) 197 Cal.App.3d 1082, 1084, fn. 1, 243 Cal.Rptr. 398.)
Finally, to the extent that appellants' predicate their privacy claims on respondents' alleged violation of the Penal Code section 632 proscription against electronic eavesdropping or videotaping, such a claim requires that the victim have had a reasonable expectation of privacy surrounding their conversation or communication (O'Laskey v. Sortino (1990) 224 Cal.App.3d 241, 248, 273 Cal.Rptr. 674), and we have already held that no such expectation existed at the accident scene itself.
For the reasons set forth above, summary judgment was properly granted insofar as appellants' two privacy claims are based on respondents' presence or conduct at the accident site itself or the broadcast of events which happened there.14
4. Triable Issues Of Fact Remain As To The Media Defendants' Presence In The Mercy Air Helicopter
A. Appellants Had A Reasonable Expectation Of Privacy While Inside The Rescue Helicopter
The Mercy Air helicopter is best viewed as an airborne ambulance. No reported California decisions have considered the privacy rights of an injured person being taken by ambulance to a hospital, but we conclude that such privacy rights existed and that triable issues remain as to whether they were violated.
The plaintiff in Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 109 Cal.Rptr. 269 (hereafter “Noble ”), was injured while shopping in a Sears store. A private investigator hired to help Sears defend the personal injury action entered the plaintiff's hospital room and deceived her into providing the address of a key witness. The plaintiff's cause of action based on this conduct was dismissed after the trial court granted defendants' demurrers. The appellate court reversed, holding that an unreasonably intrusive investigation could give rise to a cause of action for invasion of privacy and that the plaintiff had alleged sufficient facts to state such a claim since she had “an exclusive right of occupancy of her hospital room” at least insofar as defendants were concerned. (Id. at pp. 659–660, 109 Cal.Rptr. 269.)
Solis v. Southern Cal. Rapid Transit Dist. (1980) 105 Cal.App.3d 382, 164 Cal.Rptr. 343 (hereafter “Solis ”), arose from injuries sustained by a bus passenger. While the injured passenger was being treated at a hospital emergency room, two uniformed bus district investigators came to ask her questions. The investigators asked a nurse in the waiting room whether it would be all right to speak with the plaintiff. The nurse went into the emergency room, came back out and said it would be. She led them into the emergency room and to the gurney where the plaintiff lay while being treated. One of the investigators opened a curtain which surrounded the gurney and asked the doctor, who was in the middle of treating the plaintiff, whether it would be okay to speak with the plaintiff. The doctor nodded yes. The investigators identified themselves and asked the plaintiff questions about her accident for 30 to 45 seconds. The plaintiff did not indicate any reluctance to talk. Based on this conduct, the plaintiff sued for invasion of privacy.
In affirming the nonsuit which the trial court had granted the defendants on the privacy claim, the Solis court distinguished its facts from those in Noble. While the defendants in Noble entered a hospital room where the plaintiff had the exclusive right of occupancy and tricked her into revealing certain information, the investigators' conduct in Solis was not unreasonable: “They were told by the nurse that it would be all right to approach plaintiff, and the doctor indicated that it would be all right to talk to plaintiff. Under these circumstances, the fact that plaintiff was still undergoing treatment would not render unreasonable asking her what happened. [¶] The investigators did not engage in any deception. They were uniformed and identified themselves clearly before asking the question. The questioning was extremely brief, limited to the inquiry ‘[w]hat happened?’ and there was no follow up interrogation. The question was not asked in a threatening way.” (Id. at p. 392, 164 Cal.Rptr. 343, fn. omitted.)
Miller, supra, 187 Cal.App.3d 1463, 232 Cal.Rptr. 668, is almost factually identical to appellants' case, the only distinguishing feature being the locale of the intrusion—the plaintiff's home rather than an ambulance. On October 30, 1979, Dave Miller suffered a heart attack in the bedroom of the Los Angeles apartment he shared with his wife, Brownie. Los Angeles Fire Department paramedics were called. They entered the apartment and unsuccessfully tried to revive Dave Miller, who died that night.
Unknown to Brownie Miller, however, an NBC camera crew doing a news documentary on the paramedics' work also entered her apartment. While a police officer escorted her to another room, the camera crew filmed the paramedics' attempts to revive Dave Miller. It was undisputed that NBC never sought or received permission to enter or film. A few weeks later, while watching television at home, Brownie Miller flipped through several channels when she saw a broadcast of that rescue effort. She screamed and turned off the television. NBC aired promotional spots for the documentary in addition to showing the documentary itself.
Brownie Miller and her daughter sued NBC and the City of Los Angeles for trespass, infliction of emotional distress and invasion of privacy. Summary judgment was later granted NBC on those claims. The judgment was affirmed as to the daughter, since she did not live in her parents' apartment and was not present at the time. (Id. at pp. 1488–1489, 232 Cal.Rptr. 668.)
The judgment was reversed as to Brownie Miller on the trespass claim because the apartment was hers. Judgment on the invasion of privacy claim—classified by the court as one for intrusion—was reversed because triable issues of fact existed whether NBC's conduct was highly offensive: “Here, reasonable people could construe the lack of restraint and sensitivity NBC ․ displayed as a cavalier disregard for ordinary citizens' rights or privacy, or, as an indication that they considered such rights of no particular importance. [¶] In our view, reasonable people could regard the NBC camera crew's intrusion into Dave Miller's bedroom at a time of vulnerability and confusion occasioned by his seizure as ‘highly offensive’ conduct, thus meeting the limitation on a privacy cause of action Restatement of Torts, section 652B imposes.” (Id. at p. 1484, 232 Cal.Rptr. 668.)
As Hill points out, the central question is whether the plaintiff had a reasonable expectation of privacy while in some private place. Citing to both Miller and Noble, the court in Hill said that the “privacy tort seeks to vindicate multiple and different interests” which include “freedom to act without observation in a home, hospital room, or other private place․” (Hill, supra, 7 Cal.4th at p. 24, 26 Cal.Rptr.2d 834, 865 P.2d 633.) We must determine whether an ambulance is like a hospital room, a home, or some other private place which gives rise to a patient's reasonable privacy expectations. We hold that it is.
An injured person being transported to a hospital may be unconscious, sedated or writhing in the throes of agony. Paramedics are not physicians, but they still provide medical treatment on the way to the hospital. “ ‘The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.’ ” (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633, quoting Rest.2d Torts, § 652D, com. c.)
It is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger. While there can be no reasonable expectation of privacy at the scene of an accident in public view, once the ambulance doors swing shut, the unfortunate victim can and should reasonably expect privacy from prying eyes and ears. “One seeking emergency medical attention does not thereby ‘open the door’ for persons without any clearly identifiable and justifiable official reason who may wish to enter the premises where the medical aid is being administered. In [Dietemann v. Time, Inc. (9th Cir.1971) 449 F.2d 245] the court held that newsgatherers cannot immunize their conduct by purporting to act jointly with public officials such as the police or paramedics. The clear line of demarcation between the public interest served by public officials and that served by private business must not be obscured.” (Miller, supra, 187 Cal.App.3d at pp. 1489–1490, 232 Cal.Rptr. 668.)
“Finally, the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant.” (Hill, supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.) While appellants here were conscious, they were unaware of Cooke's presence and purpose. Cooke was dressed in the same jumpsuit as the Mercy Air rescue personnel and appellants, seriously injured as they were, might well have assumed that Cooke was just part of the crew. Under the circumstances, a trier of fact could reasonably conclude that appellants had no opportunity to consent. In the case of an unconscious victim, of course, no consent would ever be possible.15
For these reasons, we conclude that appellants had a legitimate privacy interest at stake—the right to be free from observation and videotaping while receiving emergency medical care inside a closed air ambulance.16 The intrusion was serious and appellants had a reasonable expectation of privacy while inside the helicopter.17
B. No Trespass Was Required To Prove An Intrusion Claim
Respondents distinguish Miller by the absence of any trespass. While the camera crew in Miller entered plaintiff's house without consent, the helicopter which carried appellants was owned by Mercy Air and Mercy Air gave the media defendants' permission to be there. This argument reads into Miller a requirement that the plaintiff in an intrusion claim prove the defendant have actually trespassed to commit the intrusion. By doing so, respondents overlook what Miller and other decisions have held.
The court in Pearson v. Dodd (D.C.Cir.1969) 410 F.2d 701, affirmed the grant of summary judgment for newspaper columnists in an invasion of privacy claim for intrusion based on their receipt of documents removed from the office of a United States senator. While the mere receipt of documents taken by the intrusion of another was not actionable, the court noted that intrusion claims could be maintained “whether or not accompanied by trespasses to property.” (Id. at p. 704.) The court repeated that point, also stating that it approved “extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not, into spheres from which an ordinary man in a plaintiff's position could reasonably expect that the particular defendant should be excluded․ The protection should not turn exclusively on the question of whether the intrusion involves a technical trespass under the law of property. The common law, like the Fourth Amendment, should ‘protect people, not places.’ ” (Ibid., fns. omitted.)
The court in Dietemann v. Time, Inc., supra, 449 F.2d 245, affirmed a judgment for the plaintiff, who had been secretly photographed and recorded in his home by Life magazine reporters doing an article on quack physicians. The tort of invasion of privacy by intrusion does not require publication to be actionable and “the existence of a technical trespass is immaterial․” (Id. at pp. 247–248.) Citing to Pearson, the court was “convinced that California will ‘approve the extension of the tort of invasion of privacy to instances of intrusion, whether by physical trespass or not․’ ” (Id. at p. 249.)
The California Supreme Court, in Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 276, 239 P.2d 630 (hereafter “Gill ”), described the invasion of privacy tort as “independent of the common rights of property, contract, reputation and physical integrity․” (Italics added.)
The Miller court had these principles in mind when describing the tort. It quoted Gill, supra, for the proposition that the right of privacy was independent of the common rights of property. (Miller, supra, 187 Cal.App.3d at p. 1481, 232 Cal.Rptr. 668.) Later, the court quoted Dietemann for the proposition that “ ‘the existence of a technical trespass is immaterial․’ ” (Id. at p. 1484, 232 Cal.Rptr. 668.) We agree that the Miller court threw NBC's trespass into the mix when discussing invasion of privacy. (Id. at p. 1481, 232 Cal.Rptr. 668 [“Plaintiff wife has alleged in her complaint a trespass which also constituted the tort of intrusion ․”]; id. at pp. 1486–1487, 232 Cal.Rptr. 668 [defendants were uninvited guests who had no right to be in plaintiff's home without her consent; since the wife was co-owner of the apartment, defendant's invasion of her rights was direct and personal to her]; id. at pp. 1488–1489, 232 Cal.Rptr. 668 [daughter's privacy claim barred because she was not present and the premises did not belong to her].)
Though this language from Miller could be read as reliance on the existence of a trespass to support an intrusion claim, it does not mean that the absence of a trespass would necessarily preclude all such claims. As the Miller court noted, the offensiveness of a defendant's intrusion must be evaluated in light of all the surrounding circumstances, including the context, conduct and circumstances, the setting of the intrusion and the expectations of the plaintiffs. (Id. at pp. 1483–1484, 232 Cal.Rptr. 668.) By discussing the fact of defendants' trespass, we believe the court was only considering the effect of that trespass in light of these factors and did not intend to announce a rule that a trespass was required in all intrusion cases. Respondents' interpretation of Miller overlooks its holding that the daughter could not maintain her privacy claim not just because she did not own the premises but also because she was not there at the time. (Id. at pp. 1488–1489, 232 Cal.Rptr. 668.) It also ignores Miller 's citation of Dietemann, supra, 449 F.2d at p. 247, and Gill for the proposition that an invasion of privacy claim does not depend on the existence of a trespass and is in fact independent of property rights. (Miller, supra, 187 Cal.App.3d at pp. 1481, 1484, 232 Cal.Rptr. 668.)
We, therefore, hold that a trespass is not necessarily required in order to maintain a claim for invasion of privacy by intrusion. This result is not only consistent with the similar pronouncements of federal and sister-state authorities, but with the California decisions mentioned above. It is also consistent with Hill, supra, 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 865 P.2d 633, our Supreme Court's latest exposition on the privacy tort. While the Hill court did not expressly state that a trespass is not a required element of the intrusion tort, it signaled as much through its descriptions of that cause of action. The “autonomy” aspect of the privacy tort protects “interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference․” (Id. at p. 35, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The tort vindicates several interests, including the freedom to act without observation in “private place[s].” (Id. at p. 24, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Nowhere does the court mention that the victim of an intrusion must have had some possessory interest in these private places which was also violated.
When discussing the factors which may or may not create a reasonable expectation of privacy, the Hill court spoke in broad terms of evaluating all the circumstances, including “customs, practices, and physical settings surrounding particular activities․” (Hill, supra, 7 Cal.4th at p. 36, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Again, any limitations imposed by the absence of a possessory interest in those physical settings is absent from the discussion.
Most important, we believe that allowing Mercy Air to in effect waive appellants' privacy rights by allowing Cooke to ride along and videotape their medical care would undermine the law of privacy.
The hospital patient does not own his hospital room—the hospital does. Yet as Noble made clear, the patient does have the exclusive right to occupy that room, at least as to hospital outsiders. (Noble, supra, 33 Cal.App.3d at p. 660, 109 Cal.Rptr. 269.) Though the court in Solis discussed the doctor's grant of permission to speak with his patient while treating her in the emergency room, it is important to note that the plaintiff impliedly consented to the investigators' presence when she answered their question without objection. Surely no patient would expect that his physicians or nurses could open his hospital room or the doctor's office to the public or the press even if the patient's treatment were a matter of public interest. In fact, case law is to the contrary. (People v. Brown (1979) 88 Cal.App.3d 283, 290–292, 151 Cal.Rptr. 749; Bazemore v. Savannah Hospital (1930) 171 Ga. 257, 155 S.E. 194 [hospital improperly permitted press photographer to take pictures of dead infant born with startling deformity]; De May v. Roberts (1881) 46 Mich. 160, 9 N.W. 146 [doctor brought male friend to plaintiffs' house to help deliver a baby; there was no medical emergency, the friend was not a doctor or medical student, and his presence was unnecessary. Both the doctor and the friend were liable for invasion of privacy].) 18
Instead, a patient's privacy rights in his or her hospital room depends on community norms of civilized conduct, which determine whether an expectation of privacy is reasonable or not. (Hill, supra, 7 Cal.4th at pp. 26–27, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The right of privacy protects people, not places. (Pearson v. Dodd, supra, 410 F.2d at p. 704.)
While the patient expects that hospital workers—doctors, nurses, orderlies and custodians—will come into his room, their presence is required to either treat the patient or carry out routine hospital functions. The same is true of an ambulance. The patient's express or implied consent to their presence does not equate with a carte blanche waiver of privacy rights as to others. (Times Mirror Co. v. Superior Court (1988) 198 Cal.App.3d 1420, 1427–1428, 244 Cal.Rptr. 556 [murder witness did not waive privacy right to her identity simply by talking to the police or friends since “[t]alking to selected individuals does not render private information public.”]; People v. Brown, supra, 88 Cal.App.3d at pp. 290–292, 151 Cal.Rptr. 749; Pearson v. Dodd, supra, 410 F.2d at p. 704, italics added [intrusion tort applies to spheres from which the plaintiff could reasonably expect “that the particular defendant ” should be excluded].) The lone remaining issue is whether respondents established their First Amendment defense to appellants' intrusion claim.
C. Unresolved Issues Remain As To A First Amendment Defense
Appellants cite Miller for the proposition that there is no First Amendment defense to a privacy claim for intrusion. That court did quote a law review article which said intrusion does not raise First Amendment issues since the tort depends not on publication, but on unwarranted observation. (Miller, supra, 187 Cal.App.3d at p. 1490, 232 Cal.Rptr. 668, quoting Nimmer, The Right to Speak From Times to Time: First Amendment Theory Applied to Libel and Misapplied to Privacy (1968) 56 Cal. L.Rev. 935, 957.) Other commentators have made the same observation. (1 McCarthy, The Rights of Publicity and Privacy (1996), § 5.10[B], p. 5–113.) Various decisions have also held that the First Amendment does not protect against unlawful newsgathering techniques. (Dietemann v. Time, Inc., supra, 449 F.2d at p. 249; Baugh v. CBS, Inc. (N.D.Cal.1993) 828 F.Supp. 745, 756; Miller, supra, 187 Cal.App.3d at p. 1492, 232 Cal.Rptr. 668.)
Even so, there is some First Amendment protection for newsgathering and, contrary to appellants' interpretation of Miller, that court recognized the defense but concluded that “the obligation not to make unauthorized entry into the private premises of individuals like the Millers does not place an impermissible burden on newsgatherers, nor is it likely to have a chilling effect on the exercise of First Amendment rights․” (Miller, supra, 187 Cal.App.3d at pp. 1492–1493, 232 Cal.Rptr. 668.) Although it did so with no real discussion or analysis, the Miller court therefore engaged in the balancing test for competing interests set forth in Hill, supra, 7 Cal.4th at pages 26–27, 37–38, 26 Cal.Rptr.2d 834, 865 P.2d 633.
While appellants thus err in their blanket pronouncement that there is no First Amendment defense to an intrusion claim, respondents commit the same mistake through their unqualified contention that the First Amendment automatically protects their conduct. Respondents argued below—and the trial court agreed—that Dora, supra, 15 Cal.App.4th 536, 18 Cal.Rptr.2d 790, provided a complete First Amendment defense.19
The plaintiff in Dora was former 1950's surfing legend Mickey Dora. In 1987, the defendants produced a video documentary titled “The Legends of Malibu” which chronicled the people and events connected with Malibu's early surfing days, including film footage of Dora surfing and the audio portion of an interview of appellant. Dora sued for invasion of privacy based solely on the misappropriation of his likeness, then appealed when summary judgment was granted for defendants. In affirming that judgment, the appellate court held that the broadcast involved a matter of public affairs or public interest which was protected by the First Amendment. (Id. at pp. 542–543, 545–546, 18 Cal.Rptr.2d 790.) The court declined to apply the newsworthiness standard of Maheu v. CBS, Inc. (1988) 201 Cal.App.3d 662, 247 Cal.Rptr. 304, which protects truthful publication of newsworthy matters, since that case involved a privacy claim based on the public disclosure of private facts. (Dora, supra, 15 Cal.App.4th at p. 543, 18 Cal.Rptr.2d 790.) Even if that test applied, however, the court held it was satisfied. (Id. at pp. 543–544, 18 Cal.Rptr.2d 790.)
Dora did not consider application of the First Amendment defense to the intrusion variant of the privacy tort and is not authority on that point. (Ginns v. Savage, supra, 61 Cal.2d at p. 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.) Under both Hill and Miller the court was obliged to conduct a balancing test between appellants' privacy rights and the media defendants' First Amendment rights to videotape and broadcast the rescue.
Hill was not decided until shortly after the two summary judgments at issue here were entered by the trial court and its absence from the court's order or the parties' summary judgment papers is no surprise. None of the parties mentioned Hill on appeal, but, under general principles of retroactivity, it sets forth the governing law. (Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 986–993, 258 Cal.Rptr. 592, 772 P.2d 1059.) Moreover, Hill did not announce some great departure from existing law but merely restated and clarified the law applicable to the privacy tort. (See Doyle v. State Bar (1982) 32 Cal.3d 12, 20, 184 Cal.Rptr. 720, 648 P.2d 942 [privacy interests are not absolute and must be balanced against the need for disclosure]; Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 228, 253 P.2d 441 [the right of privacy “is not absolute but must be balanced against the public interest in the dissemination of news and information consistent with [constitutional free speech guaranties]”]; Wilkinson v. Times Mirror Corp. (1989) 215 Cal.App.3d 1034, 1046, 264 Cal.Rptr. 194 [“A court must engage in a balancing of interests” to determine the boundaries of a privacy right]; Board of Medical Quality Assurance v. Gherardini, supra, 93 Cal.App.3d at p. 679, 156 Cal.Rptr. 55.)
The balancing test for competing interests ordinarily raises mixed questions of law and fact. (Hill, supra, 7 Cal.4th at p. 40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) The respondents presented no facts and raised no argument either below or on appeal concerning this test and the trial court apparently did not conduct it. To the extent resolution of the balancing test issue raised questions of law, the media defendants' failure to address it below barred its consideration by the trial court and precludes us from considering it as well. (Code Civ.Proc., § 437c, subd. (c) [motion for summary judgment shall be granted if all the papers show there is no triable issue of fact and that moving party is entitled to judgment as a matter of law (italics added)]; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28–29, 21 Cal.Rptr.2d 104 [no new summary judgment legal theories on appeal]; United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 333–334, 282 Cal.Rptr. 368 [issues raised by summary judgment motion should be clear, ambiguous, and be phrased in language appropriate for adoption by the court if granted]; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281, 241 Cal.Rptr. 466.)
D. Issues Concerning Mercy Air's Liability For Intrusion Have Been Waived On Appeal
Since the helicopter where the intrusion occurred belonged to Mercy Air and its presence there was clearly welcome and proper, its liability could only be founded upon having permitted the media defendants' intrusion. Serious issues are presented by Mercy Air's decision to let the media defendants ride along in the air ambulance while transporting and caring for an injured patient. Among these are whether Mercy Air breached its duties under the CMIA (Civ.Code, § 56, et seq.), whether Mercy Air might be liable for eavesdropping under Penal Code section 632 for allowing the media defendants to place microphones on Mercy Air's rescue workers and allowing Cooke to videotape from inside the helicopter, and whether Mercy Air might be liable for permitting an unlawful intrusion by others.
Serious issues demand serious argument, however, and appellants' briefs do not adequately address those issues. No attempt was made on appeal or in the trial court to separate Mercy Air from the media defendants and these parties were collectively referred to as “respondents” throughout appellants' brief. No arguments were made and no decisions cited for the proposition that Mercy Air might be liable for having permitted the media defendants' intrusion. We decline to decide issues of such importance in the absence of proper appellate argument. (Unilogic, Inc. v. Burroughs Corp., supra, 10 Cal.App.4th at p. 624, 12 Cal.Rptr.2d 741; In re Marriage of Laursen & Fogarty, supra, 197 Cal.App.3d at p. 1084, fn. 1, 243 Cal.Rptr. 398.)
5. Triable Issues Of Fact Remain Whether Publication Of Events Within The Helicopter Was Protected By The First Amendment
Appellants admit as an undisputed fact that their public disclosure claim is based solely on the broadcast of the videotaped rescue segment. We next determine whether respondents were entitled to summary judgment for having broadcast events from within the rescue helicopter.
We first consider the trial court's ruling that summary judgment was proper as to Mercy Air because it did not broadcast the videotape and therefore did not cause appellants any harm. Appellants did not address that issue either below or on appeal and we therefore deem it waived. Accordingly, summary judgment was proper as to Mercy Air on appellants' second cause of action for invasion of privacy by public disclosure of private facts.
As for the media defendants, the disclosure by broadcast was clearly public. Given our holding ante, that a zone of privacy existed inside the helicopter, the facts which were broadcast—a depiction of Ruth's appearance and demeanor while on the way to the hospital after suffering serious injuries—were private. We cannot say as a matter of law that a reasonable person of ordinary sensibilities could not find that depiction offensive and objectionable, leaving triable issues of fact on all three elements needed to prove the media defendant's liability for broadcasting events from inside the Mercy Air helicopter.
Respondents contend that the publication of an article about the accident in a local newspaper before the videotape was broadcast deprived appellants of any privacy rights. It is true that there is no right of privacy to a matter of general interest which has already been published in a newspaper. (Sipple v. Chronicle Publishing Co., supra, 154 Cal.App.3d at p. 1048, 201 Cal.Rptr. 665.) The newspaper article in question, however, merely stated that Ruth had been airlifted to the hospital. While the broadcast of events from within the helicopter obviously disclosed that fact, it also conveyed something else—what Ruth looked like while on the way to the hospital. That was not a public fact already conveyed by the newspaper article within the meaning of Sipple. (See Baugh v. CBS, Inc., supra, 828 F.Supp. at p. 755 [broadcast of events from within home of domestic violence victim conveyed more than just the facts obtainable from the public police report since the show “broadcast the event as it unfolded and effectively disclosed [plaintiff's] emotional and personal reactions to the incident as well as her comments to [the domestic violence counselor]”].)
Respondents also claim a First Amendment right in connection with the broadcast. The truthful broadcast of those events is protected by the First Amendment if it was newsworthy and did not reveal facts so offensive as to shock the community's notion of decency. (Baugh v. CBS, Inc., supra, 828 F.Supp. at p. 755; Briscoe v. Reader's Digest Association, Inc. (1971) 4 Cal.3d 529, 541, 93 Cal.Rptr. 866, 483 P.2d 34.) The court's function is to ascertain whether a jury question regarding community mores is presented. In doing so, “ ‘the line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake.’ [Citation.]” (Baugh v. CBS, Inc., supra, 828 F.Supp. at p. 755.)
We do not doubt that the work of air rescue paramedics licensed by the county is a legitimate matter of public affairs worthy of news coverage. (See DISCUSSION, section 6, post.) We cannot say as a matter of law, however, that the depictions of Ruth inside the helicopter stayed behind or strayed over the line of morbidity and sensationalism. While there was no footage of Ruth as she received medical care and though her face was covered with an oxygen mask, we hold that there is still a triable issue of fact whether the broadcast of videotape which showed an injured person being transported by ambulance was either newsworthy or offended community mores. (See Baugh v. CBS, Inc., supra, 828 F.Supp. at p. 755 [camera crew accompanied district attorney's domestic violence squad into plaintiff's home after an incident of spousal abuse by her husband; even though the issue of domestic violence is newsworthy, triable issues remained whether the plaintiff's personal involvement in such an incident was newsworthy as a matter of law].)
Mercy Air also contends that appellants' disclosure claim fails because they were not identifiable. They admit that no reported California decision has declared this a requirement in an action for invasion of privacy by public disclosure, but point to California, federal, and sister-state decisions which lend support to the contention. Those cases, however, concern appropriation of likeness or false light portrayals. (See Motschenbacher v. R.J. Reynolds Co. (9th Cir.1974) 498 F.2d 821, 826–827; Aguilar v. Universal City Studios, Inc. (1985) 174 Cal.App.3d 384, 387, 219 Cal.Rptr. 891; Cohen v. Herbal Concepts, Inc. (Ct.App.1984) 63 N.Y.2d 379, 482 N.Y.S.2d 457, 459, 472 N.E.2d 307.) Even so, requiring the plaintiff to prove that he was identified or identifiable when private facts are disclosed makes sense—if no one can tell who those facts relate to, then it is hard to see how the plaintiff was damaged by their disclosure.
We need not decide that question, however. Assuming for discussion's sake alone that there is such a requirement, triable issues of fact remain whether Ruth was identifiable, thus precluding summary judgment. Even though only scattered and obscured glimpses of Ruth are shown, she is twice identified by her first name, her age is stated, and her voice is heard several times throughout. Combined with Ruth's deposition testimony that various hospital workers came into her room to tell her she was being shown on television, we believe a jury must determine whether she was in fact identifiable from the broadcast.20 Summary judgment for private disclosure of private facts must be reversed as to the media defendants insofar as the broadcast of events about Ruth from inside the Mercy Air helicopter is concerned. Summary judgment was proper as to Wayne since he was never shown, heard or mentioned after leaving the accident scene.
6. The Commercial Appropriation of Likeness Claim
Appellants' fourth cause of action was for the commercial appropriation of their likenesses pursuant to Civil Code section 3344.21 That section provides, in relevant part: “(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent ․ shall be liable for any damages sustained․”
The term “photograph” includes videotape from which the person is readily identifiable. One is readily identifiable if someone looking at the photo or videotape with the naked eye can reasonably determine that the person being depicted is the plaintiff. (Civ.Code, § 3344, subd. (b)(1).) Under this provision, there are no triable issues concerning Wayne's claim. His voice is never heard and he is only shown twice, briefly and from some distance, rendering his identification impossible.
The statute also contains an exemption for news or public affairs broadcasts which bars the claims of both appellants. Civil Code section 3344, subdivision (d) states: “For purposes of this section, a use of a ․ likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).” The court in Dora, supra, 15 Cal.App.4th at pages 545–546, 18 Cal.Rptr.2d 790, held that the public affairs exemption applied to matters which were not necessarily considered news, concluding that a surfing documentary was a matter of public affairs based on the level of popular interest in the topic. Given this, we have no difficulty concluding that a television show which depicts the work of air rescue paramedics is a matter of public affairs.
Appellants attack the applicability of this public affairs exemption on the ground that the broadcast was knowingly or recklessly false. (See Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 425, 198 Cal.Rptr. 342.) In support, they point to the following: the narrator said six people were injured when only four had been; the narrator falsely implied that gasoline was dripping; siren sound effects were added and appellants' statements and exclamations were edited to appear at other portions of the tape, all to heighten dramatic effect.
The court in Eastwood overturned the lower court's order sustaining the National Enquirer's demurrer to actor Clint Eastwood's cause of action under Civil Code section 3344. Eastwood sued after the paper ran an article claiming he was part of a love triangle. Turning to federal court decisions construing the First Amendment in a defamation context, the appellate court held that the news and public affairs exemption of Civil Code section 3344, subdivision (d) did not protect knowing or reckless falsehoods. (Id. at p. 425, 198 Cal.Rptr. 342.) This was especially so, the court held, when the entire article was allegedly false. (Ibid.)
The plaintiff in Baugh v. CBS, Inc., supra, 828 F.Supp. 745, argued that Civil Code section 3344, subdivision (d) did not protect the broadcast of her in-home discussion with a domestic violence counselor because her segment was sensationalized by mixing it with other episodes. The district court rejected this contention because it was not entirely false in the sense used in Eastwood and was the broadcast of an actual event which occurred at plaintiff's home. (Id. at pp. 753–754.)
The court in Carlisle v. Fawcett Publications, Inc., supra, 201 Cal.App.2d 733, 20 Cal.Rptr. 405, considered a defamation claim by the man who married actress Janet Leigh when she was a young teenage girl. Among others, he contended the article was fictionalized for dramatic effect, placing the date of their marriage around the attack on Pearl Harbor. “[T]he mere fact that there are errors in the account does not constitute an invasion of privacy. [Citation.]” (Id. at p. 748, 20 Cal.Rptr. 405.) The truth required of a publication “is not complete truth, but rather substantial truth.” (St. Surin v. Virgin Islands Daily News, Inc. (3d Cir.1994) 21 F.3d 1309, 1316.)
With these decisions in mind, we hold that the errors complained of were trivial and did not rise to the level of knowing or reckless falsehood required to destroy the public affairs exemption of Civil Code section 3344, subdivision (d).22 Summary judgment on this claim was properly granted. We alternatively hold that summary judgment was proper as to Mercy Air since it did not broadcast the videotape and therefore did not appropriate appellants' likenesses in any event.
7. Intentional Infliction of Emotional Distress
Appellants cite two decisions for the proposition that invasion of privacy will also support a claim for intentional infliction of emotional distress. The first—Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 188 Cal.Rptr. 762—merely holds that emotional distress damages were properly awarded in a privacy action. The second—KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 37 Cal.Rptr.2d 431—affirmed the denial of a television station's summary judgment motion in an action for invasion of privacy and infliction of emotional distress brought when a news reporter entered a house and informed young children that their neighbors had been killed.
While a cause of action for intentional infliction of emotional distress might well be proper here, appellants have once more failed to properly argue the point. Missing from their briefs is either argument or authority concerning the law of intentional infliction of emotional distress or its applicability to the facts here. We hold once more that appellants have waived part of their argument. (Unilogic, Inc. v. Burroughs Corp., supra, 10 Cal.App.4th at p. 624, 12 Cal.Rptr.2d 741; In re Marriage of Laursen & Fogarty, supra, 197 Cal.App.3d at p. 1084, fn. 1, 243 Cal.Rptr. 398.)
8. The Costs Award Must Be Reversed
Under Civil Code section 3344, subdivision (a), the media defendants are the prevailing parties on appellants' cause of action for commercial appropriation of likeness and are therefore entitled to recover their attorney's fees and costs. Because the judgment called for an award of costs and because we are reversing that judgment, the media defendants' costs award must also be reversed.
Even so, appellants have raised issues concerning the costs award which we will resolve now in order to guide the trial court in the future. Appellants raise three general objections to the costs awarded to the media defendants: (1) deposition travel costs of $2,900 were not proper because it was not reasonably necessary to employ out-of-town counsel; (2) more than $30,000 in costs awarded under the category “other” are not permitted; and (3) the $315,000 attorney's fee award was not reasonable because the media defendants did not properly document their fees as required by court order.
Code of Civil Procedure section 1033.5 sets forth the costs recoverable by a prevailing party.23 Section 1033.5, subdivision (a)(3) expressly authorizes the recovery of deposition travel costs. Appellants' contention that this does not extend to travel by out-of-town counsel was rejected in Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548, 35 Cal.Rptr.2d 346. That portion of the costs award was proper.
The “other” costs claimed by appellants were as follows: (a) phone—$390.44; (b) telefax—$1,500.25; (c) photocopies—$7,022.55; (d) air courier—$1,567.23; (e) court reporter fees for tapes and transcripts—$712.50; (f) duplication of audio and video tapes—$380.97; (g) travel for hearings and document production—$8,504.16; (h) investigations—$101; (i) secretarial overtime—$1,135.25; (j) expert fees—$6,950; (k) postage—$104.84; (l ) messenger service—$1,056.72; (m) meals—$382.43; and (n) computerized legal research charges—$524.12. The total of these claimed costs is $30,332.46 and the court awarded them all.
Section 1033.5 authorizes only the following allowable costs: (1) filing, motion and jury fees; (2) juror food and lodging; (3) the costs of taking and transcribing depositions, along with related travel expenses; (4) service of process; (5) attachment expenses; (6) premiums on necessary surety bonds; (7) ordinary witness fees; (8) fees of expert witnesses ordered by the court; (9) transcripts of court proceedings ordered by the court; (10) attorney's fees authorized by contract, statute or law; (11) statutory court reporter fees; (12) models, blowups and photocopies of exhibits if reasonably helpful to aid the trier of fact; (13) any other item statutorily required to be awarded the prevailing party. (§ 1033.5, subd. (a).)
The following items are not allowable as costs: (1) fees of experts not ordered by the court; (2) investigation expenses; (3) postage, telephone and the cost of photocopying items other than exhibits; (4) costs to investigate jurors or prepare for voir dire; and (5) transcripts of court proceedings not ordered by the court. (§ 1033.5, subd. (b).)
Costs statutes are to be strictly construed. (Sequoia Vacuum Systems v. Stransky (1964) 229 Cal.App.2d 281, 289, 40 Cal.Rptr. 203.) If the items appearing on a costs bill appear to be proper charges, the party seeking to tax costs bears the burden of showing they are not reasonable or necessary. If the items are properly objected to, however, then the party seeking costs bears that burden. (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774, 23 Cal.Rptr.2d 810, hereafter “Ladas.”) The award of a proper item of costs is reviewed under the abuse of discretion standard but a court has no discretion to award costs which are not statutorily authorized. (Ibid.)
None of the items listed in the media defendants' “other” category of costs are allowable under section 1033.5. In addition to their exclusion from the costs statute itself, items such as meals, fax expenses, courier and messenger charges and computer research were also held to be improper in Ladas, supra, 19 Cal.App.4th at pages 774–776, 23 Cal.Rptr.2d 810, and in Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616, 1626–1628, 28 Cal.Rptr.2d 878. The media defendants do not contend that their expert witnesses or the hearings for which they seek court reporters fees were ordered by the court, thereby precluding their recovery as well. All the costs in this “other” category were improper.
The media defendants contend that the attorney's fees and costs provided by Civil Code section 3344, subdivision (a) are not limited to those set forth in section 1033.5 because subdivision (g) of Civil Code section 3344 says the remedies provided in a statutory action for commercial appropriation of likeness “are cumulative and shall be in addition to any other provided for by law.” To restrict their allowable costs under this section to those permitted by section 1033.5 would render the cumulative remedies language superfluous, they contend.
We reject the media defendants' attempt at statutory interpretation. When a new right, not existing at common law, is created by statute, that statutory remedy is exclusive. For rights which already existed at common law before creation of the statutory right, however, the statutory remedy is usually regarded as merely cumulative, permitting the plaintiff to pursue the common law remedy as well. (Glaser v. Meyers (1982) 137 Cal.App.3d 770, 774, 187 Cal.Rptr. 242.) We believe this is what the Legislature meant when it stated that the remedy provided by Civil Code section 3344 was cumulative—plaintiffs who believed their likenesses had been wrongly appropriated for commercial purposes could pursue both the common law and statutory remedies. A statute which provides for the recovery of costs, without any other language to indicate the Legislature intended a more expansive definition, is limited to those costs allowable under section 1033.5. (Davis v. KGO–T.V., Inc. (1996) 50 Cal.App.4th 772, 784–785, 58 Cal.Rptr.2d 13.)
Appellants' final attack on the costs award arises from the $315,000 in attorney's fees awarded pursuant to Civil Code section 3344, subdivision (a). The trial court ordered a briefing schedule in connection with respondents' costs bills, and required the media defendants to “file and serve declarations detailing with specificity how their attorneys fees claims are calculated․” In response, the media defendants' counsel submitted copies of their bills, along with declarations attesting to their qualifications and to the necessity for the work performed. Appellants contend this violated the trial court's order since this information did not specify how the fees were linked to work performed on the case. In order to assist the trial court when making any future costs award, we set forth the general principles applicable when determining the amount of attorney's fees.
Under section 1033.5, subdivision (c)(3), allowable costs shall be reasonable. The determination of whether attorney's fees are reasonable is a matter of discretion vested in the trial court. (Cortez v. Bootsma (1994) 27 Cal.App.4th 935, 938, 33 Cal.Rptr.2d 20.) While the court normally weighs a variety of factors, because evidence of the value of attorney's fees is necessarily before the trial court, it has the unique ability to make its own determination without specific evidence on the subject. (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 167, 18 Cal.Rptr.2d 743; In re Marriage of McQuoid (1991) 9 Cal.App.4th 1353, 12 Cal.Rptr.2d 737; Frank v. Frank (1963) 213 Cal.App.2d 135, 137, 28 Cal.Rptr. 687.) “A litigant may not increase his recovery of attorney's fees by joining a cause of action in which attorney's fees are not recoverable to one in which an award is proper․” (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129, 158 Cal.Rptr. 1, 599 P.2d 83.) The decision whether to apportion fees between such causes of action is within the trial court's discretion and apportionment is not necessary when fees are incurred for representation on an issue common to both a cause of action in which fees are proper and one in which they are not allowed. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1111, 51 Cal.Rptr.2d 286.)
For the reasons set forth above, the summary judgment for respondent Mercy Air is affirmed but the judgment for respondents Group W Productions, Inc. and 4MN Productions is reversed. The court is directed to enter a new and different order granting respondents Group W Productions and 4MN Productions summary adjudication of issues as to both appellants on their third and fourth causes of action for commercial appropriation of likeness and as to Ruth Shulman on her fifth cause of action for emotional distress. Summary adjudication is also granted as to appellant Wayne Shulman on the second cause of action for public disclosure of private facts and on the seventh cause of action for injunctive relief.
The matter is remanded to the trial court for further proceedings consistent with this opinion as to the following causes of action against the media defendants: The first cause of action by both appellants for invasion of privacy by intrusion; the second cause of action, only by appellant Ruth Shulman, on the claim for invasion of privacy by public disclosure of private facts; and the seventh cause of action by appellant Ruth Shulman for injunctive relief. The costs award to respondents Group W Productions and 4MN Productions is also reversed and the trial court is directed to consider the guidelines set forth in this opinion when calculating any future costs award. Each party to bear its own costs on appeal.
1. For ease of reference, we will refer to these parties by their first names. Ruth and Wayne will sometimes be referred to collectively as “appellants.”
2. We believe this refers to Loma Linda University Medical Center.
3. The complaint originally included Leonard and Beth as plaintiffs and Warner Brothers, Inc. and television station KNBC as defendants. Summary judgment was entered against Leonard and Beth in March 1993. Leonard and Beth's appeal from that judgment was dismissed in 1994. (Case No. B076577.) Wayne voluntarily dismissed his emotional distress claim in September 1993 after the media defendants brought a motion for summary judgment on that claim. Appellants also once alleged, but later dismissed, a claim against Mercy Air for medical malpractice. It is not entirely clear from the record, but KNBC and Warner Brothers were somehow removed from this action as well, leaving only Ruth and Wayne as plaintiffs against Mercy Air and the media defendants as defendants.
4. Penal Code section 632 makes it a crime to eavesdrop on or record confidential communications. Penal Code section 634 makes it a crime to trespass in order to commit an act in violation of Penal Code section 632. Penal Code section 637.2 permits a civil action for the recovery of a $5,000 fine or three times the actual damages, whichever is greater, by any person injured from a violation of the Penal Code eavesdropping statutes.
5. Civil Code section 56.35 provides for the recovery of compensatory damages, punitive damages up to $3,000 and attorney's fees up to $1,000 for any person whose medical information was disclosed in violation of Civil Code section 56.10. Appellants' proposed second amended complaint did not include a separate claim or prayer for relief under that section.
6. Civil Code section 3344, subdivision (a) provides that the prevailing party in any action for commercial exploitation of likeness under that section be awarded attorney's fees and costs.
7. That lower figure was ordered when the media defendants advised the court that their original calculation had been in error.
8. Appellants' reliance on 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18, 272 Cal.Rptr. 227, for the proposition that leave to amend should have been granted as a matter of course since it was sought before the summary judgment motion was heard, is misplaced. The portion quoted by appellants merely states that leave to amend should have been sought at that time but does not address the standards used in determining whether leave will then be granted. As such, it is not authority for the issue raised on appeal—whether leave to amend was properly denied once leave was sought. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.)
9. See, e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 23–27, 26 Cal.Rptr.2d 834, 865 P.2d 633, upholding drug testing of college athletes against a state constitutional invasion of privacy claim.
10. Examples given by the Hill court included involuntary sterilization, the freedom to pursue consensual familial relationships, or freedom of expression and association. (Hill, supra, 7 Cal.4th at p. 34, 26 Cal.Rptr.2d 834, 865 P.2d 633.)
11. Our holding in this regard is limited solely to appellants' reasonable expectation of privacy as to news and other legitimate media representatives.
12. For instance, while we might assume that Carnahan was a licensed emergency medical technician or paramedic pursuant to Health and Safety Code section 1797, et seq., there is neither evidence nor argument to that effect in appellants' summary judgment oppositions or in their appellate brief.
13. This waiver applies to any argument based on the disclosure of medical information while appellants rode in the Mercy Air rescue helicopter.
14. But see footnote 11, ante.
15. Further, under Noble, supra, a trier of fact could conclude that appellants were deceived into not objecting to Cooke's presence since he appeared to be part of the Mercy Air crew. (Noble, supra, 33 Cal.App.3d at p. 660, 109 Cal.Rptr. 269.)
16. Our opinion would not differ had appellants been placed in an automobile ambulance instead.
17. It has been suggested that our holding might adversely inhibit the making of training films for paramedics and other rescue personnel. Though we hold that ambulance passengers have a reasonable expectation of privacy while inside the ambulance, the competing public interest in making training films is not an issue in this case and we leave its resolution for another day.
18. The Gill court cited the Georgia decision in Bazemore with approval when describing the right of privacy as the right to be let alone, independent of property, contract, or other common rights. (Gill, supra, 38 Cal.2d at p. 276, 239 P.2d 630.)
19. On appeal, only Mercy Air raises Dora 's First Amendment defense in regard to the intrusion claim. The media defendants do not.
20. Even though we held ante, that respondents are not liable for the broadcast of events from the accident scene itself, we cannot so easily separate that segment of the broadcast from the helicopter ride in determining whether Ruth was identifiable. Someone watching the broadcast would have seen and heard the footage from the accident site and could have used that information in piecing together Ruth's identity.
21. Their third cause of action was for common law misappropriation of likeness, but appellants have made no arguments on appeal regarding that claim and we deem it waived. (Unilogic, Inc. v. Burroughs Corp., supra, 10 Cal.App.4th at p. 624, 12 Cal.Rptr.2d 741.)
22. We have assumed for discussion's sake only that each of the alleged inaccuracies existed. While the narrator clearly erred in stating the number of accident victims, the record is hardly so clear as to the other claimed errors. Both Carnahan and a firefighter can be heard on the tape discussing the presence of gasoline and there is no evidence aside from Ruth's unsubstantiated statements that the tape was edited to add sound effects or change the timing of Ruth's statements.
23. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
GODOY PEREZ, Associate Justice.
TURNER, P.J., and ARMSTRONG, J., concur.