FOX INC v. CONNOR (1994)

Plaintiff and real party in interest Derrick O'Connor (O'Connor) sued defendants and petitioners Fox, Inc. and Fox Broadcasting Company (Fox) for libel and false light invasion of privacy based on Fox's broadcast of a television program which included a 14-second scene showing O'Connor's driving under the influence arrest in Yosemite National Park.   Fox seeks a writ of mandate directing the respondent superior court to vacate its order denying Fox's motion for summary judgment, and to grant the motion, or in the alternative, to grant summary adjudication of issues.

Because no reasonable person who viewed the broadcast could possibly confuse O'Connor's truthfully depicted drunk driving arrest with the far more serious offenses which were the subjects of other segments of the broadcast, the petition will be granted.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts were established by the declarations and exhibits filed before the trial court.

O'Connor's complaint arose out of the July 3, 1992, broadcast of the Fox television program “America's Most Wanted.”   The program concerned the effect of increasing criminal activity in national parks upon the law enforcement duties of park rangers.   Early in the broadcast, and immediately preceding the scene depicting O'Connor's arrest, the narrator stated:  “Rick Obernesser is chief ranger at Yosemite.   He's got his hands full.   During peak season more than 20,000 campers bunk down in the park-and only eight rangers are on duty.   That's one ranger patrolling 3,300 campers.   Much of their time is spent keeping an eye out for such mundane violations as D-W-I.”   The program then cut to a 14-second shot of O'Connor's public arrest by a park ranger, which occurred on May 30, 1992.   During the arrest, while frisking O'Connor, the ranger asked:  “ ‘Do you have any weapons, knives, sharps [sic ]?   Anything that's going to be dangerous to me or you?’ ”   O'Connor responded:  “ ‘No, no nothing at all.’ ” ¹

The program cut to a shot of hikers viewed through the trees, and the narrator stated:  “But earlier that day one of Obernesser's rangers faced a more life threatening situation.”   There followed an account of an encounter between a ranger and a suspected marijuana user who attempted to push the ranger over the edge of a trail.

O'Connor does not claim the segment depicting his arrest is inaccurate.   Rather, both of his causes of action are founded upon his claim that the context of the entire broadcast falsely implied he was a rapist, an assailant, a drug abuser, or a weapons possessor.   He claims the effect of the program “was particularly egregious due to the fact that the entire story in Yosemite was in the context of, and revolved around a background discussion of charges of murder, rape, armed assault, drug possession, firearms possession, and armed robberies.   There was also a reenactment of a very horrible rape.   Against this backdrop Derrick O'Connor appeared, his life being irrevocably changed by this unwarranted, unwanted, unjustified and non-consensual invasion of his privacy.”

Fox answered O'Connor's complaint and moved for summary judgment, or in the alternative, summary adjudication of issues.   Fox claimed O'Connor could not maintain either of his causes of action because all of the statements in the broadcast concerning him were true, and no defamatory implication reasonably could be derived therefrom.   Fox also claimed the broadcast was absolutely privileged under Civil Code section 47, subdivision (d), the First and Fourteenth Amendments to the United States Constitution and article I, section 2 of the California Constitution as a fair and true report of government proceedings.

Opposing the motion, O'Connor claimed there were triable issues of fact as to whether the “America's Most Wanted” broadcast was a “fair and true report in a public journal” of a judicial proceeding within the privilege set forth in Civil Code section 47, subdivision (d);  as to whether the broadcast libeled him;  and as to whether his constitutional right of privacy was invaded, including whether the scene of his arrest was “newsworthy”.

In support of his position, O'Connor submitted his own and his wife's declarations claiming he was not drunk at the time of his arrest, and that he had been unable to obtain work as an actor since the broadcast.   He also submitted declarations of six persons, each of whom stated in identical terms:  “That on or about July 3, 1992 I saw a person known to me as Derrick O'Connor being handcuffed and asked if he had any ‘weapons, knives or drugs' against the background of a story about violent crime in the Yosemite National Park.  [ ] That at the time I heard said broadcast, it was not at all clear to me that this was merely a traffic stop that had gotten out of hand.   Rather it appeared, from the contents of the entire broadcast, that all of the persons appearing on that show were indeed ‘Americas [sic] Most Wanted’ criminals and that if they were included in this broadcast it was because they in some way had something to do with murder, rape, assaults with deadly weapons, drug possessions and firearm possessions that had been the subject of that broadcast.”

In reply, Fox claimed its program is indisputably a “public journal” entitled to the privilege described in Civil Code section 47, subdivision (d);  whether the broadcast was a fair and true report was a question of law for the court;  the broadcast was not reasonably susceptible to the defamatory implication claimed by O'Connor;  O'Connor's declarations failed to show the broadcast was defamatory;  his claim of invasion of privacy was beyond the scope of the pleadings;  his false light claim is identical to his slander claim;  and the broadcast's reference to him was not highly offensive as a matter of law.   In addition, Fox challenged the sufficiency of O'Connor's response to Fox's separate statement of undisputed facts, and made numerous objections to the declarations submitted by O'Connor.

The trial court denied Fox's motion for summary judgment, and its motion for summary adjudication of issues, based on the court's finding there is a triable issue of material fact as to whether the segment of the broadcast which featured O'Connor being arrested and placed in handcuffs “was understood in a defamatory sense.”

DISCUSSION

1. Standard of review.

“A motion for summary judgment ‘shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’  (Code Civ.Proc., § 437c, subd. (c).)  A defendant moving for summary judgment must either negate a necessary element of the plaintiff's case or establish a complete defense.  [Citation.]  ‘Under well established rules governing summary judgment motions, the affidavits of the moving party are to be strictly construed and those of [the] ․ opponent liberally construed.  [Citations.]  Nevertheless, a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist.’  [Citation.]  If the opposing party does not sustain that burden summary judgment is proper.  [Citation.]”  (Munro v. Regents of University of California (1989) 215 Cal.App.3d 977, 983.)

“․ [B]ecause unnecessarily protracted litigation would have a chilling effect upon the exercise of First Amendment rights, speedy resolution of cases involving free speech is desirable.  (Dombrowski v. Pfister (1965) 380 U.S. 479, 486-487 disapproved on another point in Younger v. Harris (1971) 401 U.S. 37.)”  (Good Government Group of Seal Beach, Inc. v. Superior Court (1978) 22 Cal.3d 672, 685, overruled on another point in Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 19-21;  see also Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 252.)   Therefore, summary judgment is a favored remedy in such cases.  (Good Government Group of Seal Beach, Inc. v. Superior Court, supra, at p. 685.)

While the crucial test as to whether to grant a motion for summary judgment remains the same in First Amendment cases, “․ ‘․ the courts impose more stringent burdens on one who opposes the motion and require a showing of high probability that the plaintiff will ultimately prevail in the case.   In the absence of such showing the courts are inclined to grant the motion and do not permit the case to proceed beyond the summary judgment stage [citations].’ ”  (Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1479, quoting Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1046.)

“ ‘[T]he standard of review of First Amendment defamation actions, as in all summary judgment cases, is whether the record, construed in a light most favorable to the party against whom the judgment has been entered, demonstrates there are genuine issues of fact which, if proven, would support a jury verdict for that party․’ ”  (Reader's Digest Assn. v. Superior Court, supra, 37 Cal.3d at p. 252, quoting Rebozo v. Washington Post Co. (1981) 637 F.2d 375, 381.)   The reviewing court must examine the entire record to determine that the trial court's decision “ ‘ “does not constitute a forbidden intrusion on the field of free expression.” ’ ”.  (Reader's Digest Assn. v. Superior Court, supra, at p. 252, quoting Bose Corp. v. Consumers Union (1984) 466 U.S. 485, 499.)

2. No reasonable viewer could possibly believe O'Connor's truthfully depicted recent arrest was for anything other than driving under the influence.

“Libel is a false and unprivileged publication by ․ picture ․ which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Civ.Code, § 45.)  “Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which:  [¶] 1.   Charges any person with crime, or with having been indicted, convicted, or punished for crime․”  (Civ.Code, § 46.)   “ ‘The sine qua non of recovery for defamation ․ is the existence of a falsehood.’  (Letter Carriers v. Austin (1974) 418 U.S. 264, 283 [ ].)”  (Baker v. Los Angeles Herald Examiner (1986) 42 Cal.3d 254, 259, citation omitted, original italics;  overruled on another point in Milkovich v. Lorain Journal Co., supra, 497 U.S. at pp. 19-21.)   As we have stated, O'Connor does not contend his arrest, considered alone, was not truthfully depicted.   Rather, he contends the context of the segment in which he appears falsely suggests he committed offenses far more serious than driving under the influence.   His position necessarily rests on the idea that reasonable jurors could so conclude.   The question whether that is so is one of law for the court to resolve.  (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1608.)

We have viewed the entire videotape of the program in question.   The only mention of any other crime in any proximity to the scene of O'Connor's arrest occurs in a narrative about drug dealing which clearly is unrelated to O'Connor's arrest.   The other crimes with which O'Connor is concerned, including the murder and rape, took place at other times and in other parks.   No reasonable person could possibly confuse these crimes with O'Connor's arrest for driving under the influence.²

O'Connor's cases are not helpful to his cause.   In Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, plaintiffs, a happily married couple who enjoyed a high moral reputation, were photographed without their knowledge while seated side by side at the counter of their candy and ice cream stand at the Farmer's Market.   Mr. Gill had his arm around his wife and was leaning forward with his cheek against hers.   The picture was published in the Ladies' Home Journal in connection with an article entitled “ ‘Love’ ”.   The picture was captioned, “ ‘Publicized as glamorous, desirable, “love at first sight” is a bad risk.’ ”   In the article, love was classified according to the extent upon which it is “founded upon ‘sex attraction’ or ‘affection’ and ‘respect.’ ”   One of the classifications was love at first sight, founded upon 100 percent sexual attraction, the kind the photograph was captioned to portray.   That kind of love was called “ ‘wrong’ ”, not lasting, and destined to be followed by divorce.  (Id., at p. 275.)   The court determined there was no legitimate interest in using the plaintiffs' likenesses in the article, their privacy was invaded by their depiction as dissolute and immoral persons, their feelings were hurt and they suffered mental anguish.   Judgment on the pleadings in favor of the defendants was reversed.

The plaintiffs in Gill were presented in a false light.   As we have stated, no reasonable viewer would perceive O'Connor's driving under the influence arrest as anything other than exactly what it was.

O'Connor cites O'Hilderbrandt v. Columbia Broadcasting System, Inc. (1974) 40 Cal.App.3d 323, for the applicable law, but asserts the case is factually distinguishable.   On the contrary, the plaintiff in O'Hilderbrandt was concerned with not only a television program's depiction of her in connection with the unsolved murder of her fiance many years before, but also with the juxtaposition of her history and face with the deeds of the murderers Louise Peete and Winnie Ruth Judd.  (Id., at pp. 326-327.)   The court found no tortious publication.  “As stated in Briscoe v. Reader's Digest Association, Inc. [1971] 4 Cal.3d 529, at page 537:  ‘We have no doubt that reports of the facts of past crimes are newsworthy.   Media publication of the circumstances under which crimes were committed in the past may prove educational in the same way that reports of current crimes do.   The public has a strong interest in enforcing the law, and this interest is served by accumulating and disseminating data cataloging the reasons men commit crimes, the methods they use, and the ways in which they are apprehended.’  [¶] While it may not have been in good taste to place the recitation of plaintiff's professional and social relationship with the murdered William Desmond Taylor in juxtaposition with the story of the heinous deeds of Louise Peete and Winnie Ruth Judd, that circumstance was not, as a matter of law, so offensive as to shock the community's notions of decency.   As stated in Kelley v. Post Publishing Co., 327 Mass. 275, at page 278 [ ]:  ‘The law does not provide a remedy for every annoyance that occurs in everyday life.   Many things which are distressing or may be lacking in propriety or good taste are not actionable.’ ”  (O'Hilderbrandt v. Columbia Broadcasting System, Inc., supra, 40 Cal.App.3d at p. 334.)

In our case, the public has a strong interest in personal safety and law enforcement, and these interests are served by programs such as the one at issue apprising the public of increasing crime at our national parks, and the consequent problems of park rangers.   The segment depicting O'Connor's then recent driving under the influence arrest was used to demonstrate that most of the rangers' law enforcement duties are of a routine, nondangerous nature, and no reasonable viewer could have seen it in any other light.   Summary judgment is an appropriate remedy.

DISPOSITION

The petition is granted.   Let a writ of mandate issue directing the respondent superior court to vacate its order denying Fox's motion for summary judgment and enter a new and different order granting the motion.

FOOTNOTES

1.   O'Connor subsequently entered a plea of nolo contendere to the driving under the influence charge.

2.   Insofar as O'Connor's complaint against Fox rests upon a claim of intrusion upon his privacy, his arrest occurred on a public highway, and the videotape “only extended knowledge of the particular incident to a somewhat larger public than had actually witnessed it at the time of occurrence.”  (Gill v. Hearst Publishing Co. (1953) 40 Cal.2d 224, 230.)  “ ‘[T]here can be no privacy in that which is already public.’   [Citation.]”  (Ibid.;  Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 162;  compare Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463.)

KITCHING, Associate Justice.

KLEIN, P.J., and CROSKEY, J., concur.