Citations
- 113 Cal. App. 4th 415
Full opinion text
Opinion
HASTINGS, J.
BACKGROUND
Appellants Robert and Marietta Marich brought this action in 1997, against QRZ Media, Inc., MGM/UA Telecommunications, Inc., and Metro Goldwyn Mayer, Inc., respectively, the producers and distributors of a television show entitled, LAPD: Life on the Beat. The show was videotaped by a QRZ-employed crew consisting of a camera operator and a soundman who rode on patrol with officers of the Los Angeles Police Department. On October 20, 1996, the crew videotaped two officers as they responded to a call to the apartment of appellants’ son, Michael Marich, where he was found dead.
While the television crew videotaped, one of the policemen, Officer Jackson, telephoned appellants at their home in Texas. The result of the videotaping was a four-minute segment in an episode of the show entitled, “The Final Act.” Officer Jackson’s telephone call to appellants appears in the episode. He is seen and heard speaking first to appellant Marietta Marich, then to appellant Robert Marich, informing them, without identifying appellants’ or their son by name, that the police discovered their son dead in his apartment of an apparent drug overdose. While the words spoken are unintelligible, appellants’ responses are audible, and clearly register shock and anguish.
After the show was broadcast, appellants brought this action, and it was consolidated with appellants’ action against the City of Los Angeles regarding the same show. The complaint sets forth causes of action for intentional infliction of emotional distress, common law invasion of privacy, based upon intrusion and public disclosure of private facts, and statutory invasion of privacy, based upon Penal Code sections 631, 632, and 634. After the trial court granted the respondents’ anti-SLAPP motion and dismissed the action pursuant to Code of Civil Procedure section 425.16, we reversed the judgment of dismissal and the matter was remanded for trial.
In June 2001, QRZ Media, Inc., filed a Chapter 7 bankruptcy petition, staying the action with regard to that defendant, and jury trial commenced on July 5, 2001, against the remaining defendants, including respondents in this appeal, MGM/UA Telecommunications, Inc., and Metro Goldwyn Mayer, Inc., on the causes of action for common law invasion of privacy based upon intrusion, and statutory invasion of privacy, based upon Penal Code section 632. The theory of the case was that the improper recordings combined with the subsequent publication of the conversations resulted in damages to appellants. The jury’s deliberations began on July 24, 2001, and were quite eventful, with requests from the jury for rereading of testimony, further argument, and multiple questions, nearly all involving the meaning of the word intentional.
On July 26, 2001, after the jury indicated to the court that it might be deadlocked, one of the jurors was excused due to a prepaid family vacation, and the jury was instructed to begin deliberations anew. When the jury again indicated that it was deadlocked, the court discussed with counsel the advisability of giving an “Allen charge.” The court answered the jury’s questions, permitted additional argument, and provided the rereading of requested testimony. Appellants’ counsel then proposed an additional instruction with regard to intent, which was refused by the court.
Deliberations resumed, and the jury again reported that it was deadlocked, eight to four. The parties stipulated to accepting a verdict based on a vote of eight to four, instead of nine to three. The “Allen charge” was not given.
The jury returned special verdicts on each of the two causes of action. With regard to the common law intrusion theory, the jury answered “no” to the following question: “Did any employee of QRZ Media, acting within the scope of his or her employment, intentionally intrude into Robert Marich’s solitude, seclusion, private affairs or concerns, specifically with respect to Robert Marich’s side of the telephone death-notification conversation with Officer Jackson on October 20, 1996?”
With regard to the statutory claim based on Penal Code section 632, the jury answered three questions as follows: “11. Did any employee of QRZ Media, acting within the scope of employment, record or eavesdrop upon Robert Marich’s side of a confidential communication without Robert Marich’s consent? [