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