Hill v. Doc Shop Prods.

JAMISON HILL, et al., Plaintiffs and Respondents, v. DOC SHOP PRODUCTIONS, INC., et al., Defendants and Appellants.

B305617

California Court of Appeals, Second District, Fifth Division

April 11, 2022

NOT TO BE PUBLISHED

APPEAL from an order of the Superior Court of the County of Los Angeles No. 19STCV27884, Susan Bryant-Deason, Judge. Affirmed.

Mitchell Silberberg & Knupp, Emily F. Evitt, Aaron M Wais, and Gabriella A. Nourafchan, for Defendants and Appellants.

Ervin Cohen & Jessup, Randall S. Leff, Russell M. Selmont, and Matthew S. Blum for Plaintiffs and Respondents.

KIM J.

I. INTRODUCTION

This action arose from the production and airing of the Netflix series Afflicted. Seven people depicted in that series sued defendants^[1] for defamation, invasion of privacy (false light), and fraud. Defendants moved to strike the complaint under the anti-SLAPP statute, ^[2] but the trial court denied the motion.

On appeal, defendants contend plaintiffs failed to make a prima facie showing sufficient to overcome the consent/release defenses to the defamation and false light claims. Defendants also contend plaintiffs failed to demonstrate that their defamation, false light, and fraud claims had minimal merit. We affirm.

II. FACTUAL BACKGROUND

A. The Parties

1. Plaintiffs

Four of the plaintiffs featured in Afflicted suffered from chronic illnesses and the other three provided support and care for the ill plaintiffs. Jill Edelstein (Edelstein), a licensed psychotherapist and clinical social worker, suffered from Hashimoto's thyroiditis, an autoimmune disease, and had been diagnosed with multiple chemical sensitivity. Janine Feczko (Feczko) was Edelstein's partner and later her wife.

Pilar Olave (Olave) suffered from common variable immunodeficiency disorder, a life-threatening disease, and myalgic encephalomyelitis, also known as chronic fatigue syndrome.

Bekah Dinnerstein (Bekah)^[3] suffered from acute mold sensitivity, brought on by a bout with Lyme disease. She also suffered from common variable immunodeficiency disorder and several other conditions. Nick Dinnerstein (Nick), Bekah's brother, acted as her caretaker during the filming of Afflicted. Jesse Bercowetz (Bercowetz), Bekah's boyfriend, was her caretaker for nearly two years prior to filming.

Jamison Hill (Hill) suffered from myalgic encephalomyelitis.

2. Defendants

Defendants were three of the individuals and two of the companies involved in the creation and production of Afflicted. Daniel Partland (Partland) was the president of Doc Shop Productions, Inc. (Doc Shop), a production company. Partland created and was the executive producer of Afflicted.

Peter LoGreco (LoGreco) was an executive producer of and the showrunner for Afflicted.

Stephanie Lincoln (Lincoln) was one of the field producers for Afflicted.

Netflix, Inc. (Netflix) hired Doc Shop to produce Afflicted and distributed Afflicted through its subscription streaming video service. According to plaintiffs, Afflicted was a joint production between Netflix and Doc Shop.

B. Origins of the Afflicted Series

Partland developed "the idea for Afflicted" based on his experience with his wife's chronic illness. He created the production company Vivify Pictures, Inc. (Vivify), a wholly owned subsidiary of Doc Shop, for purposes of making Afflicted. In April 2017, he hired LoGreco as the showrunner to oversee the day-to-day operations of the show.

C. The Releases

In preparation for the start of filming, LoGreco was responsible for obtaining "a personal release from each of the subjects, as well as all of their friends and family members who appeared in the show." The agreements LoGreco required each plaintiff to sign were entitled: "Personal Release" and began with the following caveat at the top of the document, set off in a box, in bolded, all-capital letters, and in larger type face than the text: "THIS IS A LEGAL DOCUMENT AFFECTING YOUR RIGHTS AND RESPONSIBILITIES. DO NOT SIGN UNTIL YOU HAVE COMPLETELY READ THE FOLLOWING: . . . ."

The first paragraph of the release recited the consideration plaintiffs would receive for their agreement to participate in the production of Afflicted, i.e., the potential that the producer, Vivify, would "includ[e plaintiffs] in the television program currently entitled '[Afflicted]' . . . ."

The release then provided that, in exchange, plaintiffs would "grant to [Vivify] . . . the irrevocable right (but not the obligation) to film, tape and/or photograph, record . . ., exhibit, edit, modify, . . . [and] use . . . [plaintiffs'] name[s], voice[s], likeness[es], conversations . . . (collectively '[r]ecordings') in any manner, in all media . . . . [Plaintiffs] agree that [Vivify] is the sole owner of all the results and proceeds of the [r]ecordings. [Vivify] shall also have the unrestricted right to edit the content and text of [Afflicted] and the [r]ecordings in any manner or form . . . ." (Italics added.)

Plaintiffs also expressly acknowledged that Afflicted "may include, among other things, documentary-style or 'behind the scenes,' dramatic, humorous, embarrassing, humiliating, and satirical elements" and that they "may reveal information about [themselves] of a personal, private, intimate, surprising, disparaging, embarrassing, or unfavorable nature, which may be factual and/or fictional." (Italics added.)

Plaintiffs further acknowledged that their "appearance, depiction, and/or portrayal in connection with [Afflicted], and [their] actions and/or the actions of others, may be disparaging, defamatory, embarrassing, or of an otherwise unfavorable nature to [plaintiffs] and may expose [them] to public ridicule, humiliation, or condemnation, and that [Afflicted] may have a variety of natural or manufactured elements." (Italics added.)

After also confirming that they had "voluntarily agreed to participate in [Afflicted] of [their] own free will with full and complete understanding of the risks," plaintiffs agreed to release and hold harmless a broad category of parties from "any and all claims, judgments, interest, demands, losses, liabilities, causes of action, or costs of any kind (including reasonable attorney's fees and court costs) (collectively, [c]laims) that [they] may have arising out of or in any way resulting from [their] participation in [Afflicted], and the use or reuse of the [r]ecordings, and [they] agree[d] not to make any claim against the [r]eleased [p]arties as a result of [their] participation in [Afflicted] and/or in connection with any use or reuse of the [r]ecordings (including without limitation, claims based upon defamation, invasion of privacy, emotional distress, false light, and/or publicity) . . . ." (Italics added.)

III. PROCEDURAL BACKGROUND

On August 7, 2019, plaintiffs filed their complaint against defendants, asserting five causes of action^[4] for defamation, false light, unjust enrichment, injunctive relief, and fraud. In summary, plaintiffs contended that they "were duped by [d]efendants into participating in a salacious reality television program that questioned the existence of chronic illnesses and portrayed [p]laintiffs as lazy, crazy, hypochondriacs and/or malingerers who were deserving of scorn and who in fact have received scorn and abuse because of [d]efendants' cruel and duplicitous actions."

On October 28, 2019, defendants filed their answer to the complaint, in which they asserted, among others, affirmative defenses of consent and release, based on plaintiffs' execution of the releases. On that same date, defendants also filed a motion to strike pursuant to section 425.16.

Plaintiffs opposed the motion, arguing that their claims were not based on an issue of public interest and that there was a likelihood that they would prevail on each of their claims. Regarding the consent and release defenses, plaintiffs argued that there was minimal merit to their contention that the releases were "procured . . . [by] fraud and undue influence" and that, as a result, were "void." In support of their arguments, plaintiffs each submitted a declaration describing their experiences with defendants from first contact through the filming and airing of Afflicted, including their respective descriptions of the circumstances under which the releases were executed.

On March 2, 2020, the trial court held a hearing on the motion to strike and on March 27, 2020, the court issued a written ruling denying the motion. On the question of whether the acts at issue in plaintiffs' claims were in connection with an issue of public interest, the court ruled that they were. On the issue of whether plaintiffs could demonstrate a probability of prevailing on the merits of their claims, the court considered, among other things, whether the releases barred plaintiffs' claims. The court concluded that it was "reasonable that a jury could find that the [r]eleases were obtained through a fraudulent misrepresentation about the purpose of [Afflicted]." [Citations.] Because it is for the jury to decide if the [r]eleases were validly obtained, the existence of the [r]eleases is not a categorical bar to [p]laintiff[s'] claims." The court also concluded that plaintiffs had presented a sufficient prima facie showing on each of their claims and therefore denied the motion.

Defendants filed a timely notice of appeal from the order denying their motion.

IV. DISCUSSION

A. Anti-SLAPP Procedure

"A SLAPP suit-a strategic lawsuit against public participation-seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted . . . section 425.16-known as the anti-SLAPP statute-to provide a procedural remedy to dispose of...