OLSON v. COHEN
Court of Appeals of California, Second District, Division Seven.
Filed September 12, 2011.
Cohen created the fictitious character of "Bruno" and starred in the film mock-documentary, comedy Bruno released in 2009.4 Appellants claim that "[t]he character `Bruno' is an extreme, outrageous, offensive caricature of a gay man with a faux Austrian accent meant to elicit a response from individuals through vulgar, sexually charged statements." According to the movie's producer, the character of "Bruno" was portrayed as a "gay Austrian celebrity, who among other things, addresses the issue of American homophobia by placing the `Bruno' character into situations intended to expose society's homophobic nature and tendencies." Events Giving Rise to Appellants' Claims.
At some point prior to May 24, 2007, appellants agreed to participate in a "documentary-style" movie respondents planned to film at the Angel's Bingo Hall during an evening of charity bingo games. Appellants alleged that they were told a well-known host/celebrity wanted to visit the charity bingo game and wanted to "call" the bingo numbers during the game while being filmed. They also alleged that they were informed that the filmed segments would be included in a documentary about bingo that would be shown on such television channels as PBS and the Discovery Channel. Appellants claimed, however, that they did not know the actual identity of the "celebrity," nor the true purpose of the visit and filming.
Appellant Richelle Olson, signed a "Standard Location Agreement" with respondent Cold Stream Productions to allow respondents to enter the bingo hall and to bring the cast, crew and all of the equipment, and to use the location for the purpose of filming ("Location Agreement"). Olson was paid $300 for use of the property during the filming. In the agreement, Richelle Olson also specifically agreed that she was "not relying upon any promises or statements made by anyone about the nature of the Film or the identity, behavior or qualifications of any of the cast or persons involved in the Film," and that she had executed "this release without regard to any expectations or understandings concerning the events that may occur during the filming on the Property, offensive or otherwise." Under the Location Agreement, Richelle Olson also agreed "not to bring . . . any claims" in connection with the production, including any claims for emotional distress, intentional torts, or fraud (based on any alleged deception about the Film, or the cast or this consent agreement).
Appellants Richelle and Lance Olson also executed a "Standard Consent Agreement." Under the Consent Agreement appellants were to be paid $20 each to be filmed for a "documentary-style film" ("Consent Agreement"). The agreement further stated that the Producer "hopes to reach a young adult audience by using entertaining content and formats." It was further agreed that "this is the entire agreement between" the parties and that appellants had "not rel[ied] upon any promises [as to] the nature of the Film or the identity, behavior or qualifications of any of the cast members or other persons involved in the Film." Appellants also agreed that they had executed the agreement "with no expectations or understandings concerning the conduct, offensive or otherwise, of anyone involved in this Film." In addition, the Consent Agreement provided that appellants "without limitation to waive[d], and agree[ed] not to bring at any time in the future, any claims against the Producer, or against any of its assignees or licensees or anyone associated with the Film, which are related to the Film or its production or this agreement."
Thereafter on May 24, 2007, Cohen, disguised as the character "Bruno" appeared at the bingo hall. Appellants agreed to allow Cohen to "call" the numbers for two bingo games that evening. Cohen engaged in a discussion in a backroom with appellant Lance Olson, who instructed Cohen on how to "call" a bingo game. Thereafter, Cohen proceeded to the stage in the bingo hall and began to "call" out the numbers in the first game. During the second bingo game, while calling out the numbers appellants allege that Cohen began using "vulgar and offensive" language over the loud speaker system in the bingo hall.
The video footage submitted to this court,5 shows Cohen announcing bingo numbers as the bingo balls are randomly selected from the bingo machine. During the second game, after announcing a few numbers Cohen began to make comments to the audience in which he related some of the bingo numbers to certain aspects of his homosexual life style.6
1. All statutory references are to the Code of Civil Procedure unless otherwise indicated.
2. "SLAPP" is an acronym for "strategic lawsuit against public participation.
3. As appellants' complaint suggests, the people with whom Cohen interacts (while Cohen is disguised and acting in-character), do not recognize Cohen or know the actual purpose of his actions, which appellants claim are designed to humiliate and embarrass his subjects for entertainment value.
4. All of the respondents in this action were involved in the production of Bruno.
5. In the lower court and here, respondents submitted an exhibit containing approximately 28 minutes of unedited video footage which depicts the events respondents filmed at the bingo hall on May 24, 2007. The first minutes of the footage showed appellant Richelle Olson advising the audience assembled in the bingo hall that filming was about to begin, and that those who chose to remain in the bingo hall were effectively agreeing to appear in the film. During filming respondents used approximately three video cameras positioned in different places in the bingo hall, including at the stage area, to capture the events on the stage as well as the reaction of audience members/bingo players. The film footage taken by respondents at the bingo hall on the evening of May 24, 2007, did not appear in the final version of the film released in theaters.
6. After Cohen called out the Bingo number 36, he states that "36" was the age of his former male partner. Later, when he calls out the number 3, he says that his former partner's birthday was "May 3." When he later calls out the number 59, he remarks that 59 was the number of his hotel room he stayed in when he met his former partner, and a few minutes later when he announces number 42, Cohen offers that "42 inches was his partner's chest size. Finally, after Cohen announces the number 7, he comments that he met his partner on "July 7." Some members of the audience can be heard laughing after each comment.
7. Appellant Richelle Olson also states: "Can you believe that they did this to a woman who has cancer? . . . I haven't been out of bed for more than five hours in the last three weeks and I come out here to do this. . . ."
8. Appellants submitted their own one-minute video footage to the lower court. But, appellants did not submit their video to this court. According to the trial court's account, the footage showed a person, who appears to be Richelle Olson and another unidentified person walking away from the camera and toward a room. The video then cuts to a shot of Richelle Olson lying face down on the floor with her eyes closed as several individuals attempt to turn her over.
9. In the alternative, respondents filed a motion to strike certain causes of action based upon the consent agreements and the releases.
10. Appellants initially objected to the lower court's consideration of the video, but apparently withdrew their objection when the court agreed to allow appellants to submit their own video.
11. We note that appellants complain to this court that the lower court failed to rule on appellants' evidentiary objections to respondents' exhibits, specifically seven news articles which reported reactions to the release of Bruno, reviewed Bruno, and/or described Cohen's prior film work and persona. First, a review of the transcript from the hearing on the motion makes clear the trial court overruled appellants' objections to these articles. Second, although this evidence does not inform this court's consideration of the issues, we cannot say that the lower court abused its discretion in considering the articles as relevant to the issue of whether the movie Bruno and the issues raised by the film generated media attention and public interest.
In addition, appellants also complain that the lower court erred in granting respondents' request for judicial notice of a 2007 order granting a section 425.16 motion to strike a lawsuit, alleging tort claims in connection with Cohen's film Borat. Although the trial court made a passing reference to the 2007 case at oral argument on the motion, there is no indication that the court took judicial notice of the case or that it played any role in the outcome below; the court made no reference to it in the 15-page statement of decision. Furthermore, even if the trial court had considered it, appellants have not articulated any prejudice they suffered as a result. Finally, and most significantly, we do not rely on this evidence in formulating our analysis and conclusion.
12. In Lieberman, KCOP television employees secretly recorded their consultations with the plaintiff doctor, which KCOP broadcast in a news report. (Id. at pp. 161-162.) The doctor filed a complaint against KCOP for violation of Penal Code section 632, which prohibits secretly recording confidential communications. (Id. at pp. 163-164.) The appellate court found that "the broadcast was an act in furtherance of the appellant's exercise of a constitutional right to free speech in connection with a public issue, as defined in section 425.16. [Citations.]" (Id. at pp. 163, 165.) The court concluded that the secret recordings "were in aid of and were incorporated into a broadcast in connection with a public issue," and therefore, also "fell within the scope of section 425.16." (Id. at p. 166.)
13. Indeed it is the fact that the claims here are inextricably tied to the Cohen's expressive conduct that also distinguishes this case from the analogy appellants offer to the Twilight Zone movie, in which the actor Vic Morrow and two child actors were killed while shooting a scene of the movie. In Twilight Zone the cause of the injuries was an equipment malfunction during the filming. In contrast here, appellants alleged claims arise from the words Cohen spoke while calling the Bingo game.
14. Section 425.17, subdivision (c) provides a limited exception to the anti-SLAPP statute for certain commercial speech, but under section 425.17, subdivision (d)(2), this exception does not apply to "[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation."
15. Additional examples of matters of public interest were found in the following cases: Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628 at page 651 (disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68), concerning statements about a large and wealthy church that had been the subject of extensive media coverage; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, at page 1175, involving statements about the placement of a shelter for battered women that had been the subject of considerable public controversy, including local land use hearings; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, at pages 238-239, concerning allegations of domestic violence against a nationally known political consultant who successfully had used the domestic violence issue in a number of political campaigns; and Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479, involving political statements regarding self-government of 3,000 persons who lived in a gated community.
16. In Rivero the plaintiff was the former supervisor of janitors at the International House on the campus of the University of California at Berkeley. (Id. at p. 916.) Some of the janitors made allegations of misconduct that were investigated and were not substantiated. Nonetheless, Rivero was demoted and then fired when he would not accept demotion. (Ibid.) Thereafter, the employees union published and distributed three documents containing claims of misconduct by Rivero. (Id. at pp. 916-917.) The court of appeal concluded that the publications did not involve a matter of public interest. "Here, the Union's statements concerned the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Rivero's supervision of those eight individuals is hardly a matter of public interest." (Id. at p. 924.) The court also rejected the claim that the defendant could turn a private matter into one of public interest simply by publishing it to numerous people. "If the mere publication of information in a union newsletter distributed to its numerous members were sufficient to make that information a matter of public interest, the public-issue limitation would be substantially eroded, thus seriously undercutting the obvious goal of the Legislature that the public-issue requirement have a limiting effect." (Id. at p. 926.)
17. In view of this conclusion we need not decide the applicability or the validity of the waivers and releases in the Location and Consent Agreements.