McKinney v. Morris CA2/8 ( 2013 )

Filed 10/15/13 McKinney v. Morris CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JOYCE MCKINNEY, B240830
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. LC095322)
v.
ERROL MORRIS et al.,
Defendants and Respondents.
APPEAL from the judgment of the Superior Court of Los Angeles County. James
Steele, Judge. Affirmed.
The Tidrick Law Firm, Steven G. Tidrick, and Andrew L. Younkins for Plaintiff
and Appellant.
Sedgwick, Gail E. Kavanagh, John F. Stephens, and Chantal Z. Hwang for
Defendants and Respondents.
**********
In 1977, a tabloid media frenzy erupted in England over the arrest of plaintiff and
appellant Joyce McKinney, an American former beauty pageant contestant, on charges
she had kidnapped Kirk Anderson, a Mormon missionary, chained him to a bed, and
forced him to have sex with her for three days. Plaintiff consistently proclaimed her
innocence, explaining that Anderson was her fiancé and their weekend getaway at a
cottage in Devon was consensual. Plaintiff asserted she had gone to England to rescue
Anderson, who she said was brainwashed and coerced by elders in the Mormon Church
into making the false claims against her. Media coverage of the story was international,
but was primarily undertaken by two competing British tabloids, the Daily Mirror and the
Daily Express. By plaintiff’s own admission, she attained a measure of celebrity as a
result of the extensive media coverage. After spending some three months in jail
awaiting trial, plaintiff was released on bond, and eventually fled England before her trial
and returned to the United States. British authorities did not pursue extradition.
In 2008, defendant and respondent Errol Morris, a director who received an
Academy Award for best documentary in 2003, saw a report in the Associated Press
concerning plaintiff and became interested in her story. Morris and his producing team
contacted plaintiff and asked her to participate in an interview about the tabloid press and
their tactics. Plaintiff’s taped interview became the core of a documentary film, directed
by Morris, titled Tabloid. Tabloid was released in select theaters in July 2011, was
featured at numerous film festivals, and was eventually released on DVD.
Plaintiff filed this action against Morris, as well as numerous other entities and
individuals associated with the production and distribution of Tabloid, alleging she had
been defrauded about the nature of the production, coerced into signing a release
agreement, and that the film was salacious, false and defamatory in its portrayal of her.
Morris and his codefendants filed a special motion to strike pursuant to Code of Civil
Procedure section 425.161 (hereafter section 425.16), seeking to strike six of the eleven
1 All further undesignated section references are to the Code of Civil Procedure.
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causes of action in plaintiff’s complaint. The trial court granted the motion, and plaintiff
appealed.
We conclude the challenged causes of action arise from acts by defendants in
furtherance of the exercise of their First Amendment rights to free speech on an issue of
public interest, and that plaintiff failed to show a probability of prevailing on those
claims. Accordingly, we affirm the court’s order granting defendants’ motion.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Civil Action
On November 2, 2011, plaintiff filed her original complaint stating 11 causes of
action: (1) common law misappropriation; (2) commercial misappropriation of likeness
(Civ. Code, § 3344); (3) invasion of privacy/intrusion on seclusion; (4) invasion of
privacy/false light; (5) defamation; (6) intentional misrepresentation/fraud; (7) breach of
contract; (8) intentional infliction of emotional distress; (9) conversion; (10) unjust
enrichment; and (11) violation of Business and Professions Code section 17200.
The gist of plaintiff’s complaint is that defendants defrauded and coerced her into
participating in the interview with Morris under false pretenses and signing a release
consenting to defendants’ use of the material in a production about the tabloid press.
Plaintiff alleged the story of her trip to England in 1977 to rescue her fiancé from the
Mormon church, dubbed the “Manacled Mormon” story by the Daily Mirror, was “long
dead,” that she had carefully attempted to maintain her privacy since that time, and that
Tabloid resurrected the false and salacious story and took it “to a new, outrageous level.”
Plaintiff alleged defendants not only defamed her, but ransacked her home and took many
personal items and photographs, without her permission, to exploit for use in the film.
2. The Special Motion to Strike
In January 2012, defendants and respondents Morris, IFC In Theaters LLC, IFC
Films LLC, AMC Network Inc., Cablevision Systems Corporation, Air Loom
Enterprises, LLC, Moxie Pictures Inc., Mark Lipson, John Kusiak, and Milan
Entertainment, Inc. (collectively defendants) filed a special motion to strike pursuant to
section 425.16, seeking an order striking six of the eleven causes of action in plaintiff’s
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complaint: common law and statutory misappropriation of likeness, invasion of
privacy/intrusion on seclusion, invasion of privacy/false light, defamation, and intentional
infliction of emotional distress (the “challenged claims”).
Defendants argued the challenged claims arose from the exercise of their right to
free speech in creating and distributing a documentary film about the tabloid media.
Defendants contended plaintiff not only willingly participated in the production, but
signed written releases regarding the use of her interview, image and story in the film for
which she was paid agreed-upon consideration. Defendants also argued plaintiff was
properly characterized as a limited purpose public figure, and required to show
defendants acted with actual malice under New York Times v. Sullivan (1964) 376 U.S.
254 (New York Times). Defendants contended that because the constitutional defense
applied to all challenged claims, and plaintiff could not show any defendant acted with
actual malice, plaintiff could not establish a probability of prevailing. Defendants further
argued the misappropriation claims were barred by the newsworthiness or public interest
defense.
a. Defendants’ evidence
In support of their motion, defendants presented the declarations of Morris, Mark
Lipson (one of the producers), and several individuals (Ron Gersten, Lisa Pak, Gail
Kavanaugh) attesting to the authenticity of the supporting exhibits. The exhibits
consisted of copies of the newspaper articles and other documents obtained by Lipson
and the production team during research into the Manacled Mormon story; copies of
additional articles concerning plaintiff regarding different subjects over the last several
decades; copies of correspondence and the release agreements with plaintiff; a DVD
containing segments of archival video footage from the British Broadcasting Corporation
(BBC) referred to by Lipson as a “screener”; a transcript reflecting the audio portions of
the screener video clips; a copy of the “Dialog/Continuity List” for Tabloid which
reflects the “dialog and written words that appear in the film organized by scene numbers
and time measurements”; and a DVD copy of Tabloid. We summarize those facts
germane to our discussion.
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Morris has been directing films for over 30 years. In 2008, he saw an Associated
Press article dated August 10, 2008, about plaintiff which piqued his interest in her story.
The article reported that plaintiff, who was then receiving international press attention for
having had her pit bull, Booger, successfully cloned, was the same woman who had
garnered extensive media coverage in the 1970’s for allegedly abducting a Mormon
missionary. Morris was in development with Showtime about a documentary television
series addressing the issues of tabloid journalism and celebrity. He thought plaintiff’s
story would be “a good fit” for the program. He asked Lipson, his producing partner on
the project, to contact plaintiff.
Like Morris, Lipson has been involved in filmmaking for over 30 years. He has
produced a number of Morris’s documentaries. Lipson “spearheaded” the research effort
into plaintiff’s story, assisted primarily by Ajae Clearway, one of the story producers.
They contacted plaintiff about participating in an interview and obtained extensive
research materials regarding the tabloid coverage of plaintiff’s story in the 1970’s, as well
as additional news reports concerning plaintiff that appeared over the years.
Lipson spent some eight months and approximately 500 hours of time performing
research and talking to potential interview subjects. The research materials he obtained
included articles from several British papers and tabloids, and articles from the
Associated Press and a Wyoming-based paper, the Star-Tribune, among others. Lipson
obtained archival video footage of news reports from the BBC as reflected in the
screener, and a book based on the Manacled Mormon story by Anthony Delano published
in 1978.
Morris and Lipson spoke with plaintiff’s British criminal defense attorney, Stuart
Elgrod, and attempted to obtain court records from the proceedings but were told the
records no longer existed.
Lipson obtained a copy of a 1984 film by Trent Harris, featuring an interview and
video footage of plaintiff, portions of which were used in Tabloid. Lipson inquired about
obtaining copies of an interview plaintiff gave to Tom Snyder for his talk show in
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approximately 1978, but ultimately decided against it due to the cost of acquiring the
rights.
Lipson also obtained copies of additional news articles related to plaintiff dating
from the 1980’s through the present, from media outlets like the Associated Press and
People Magazine, regarding various subjects, including plaintiff’s arrest in 1984 in Utah
for allegedly stalking Anderson near his work at the Salt Lake City airport, stories related
to a dispute with a neighbor in North Carolina that resulted in litigation, and articles in
2008 regarding the successful cloning of her pit bull.
Throughout his career, Morris has generally tried not to have extensive pre-
interview discussions with his interview subjects, preferring instead to hear the person’s
story fresh during the interview process. He does not ask a lot of questions, but rather,
lets the interviewee simply “express their story themselves.” In talking with plaintiff
about arranging a possible interview, Morris found plaintiff to be quite forthcoming in
talking about her life experiences. Plaintiff indicated she was familiar with Morris’s film
work and “excited” about the prospect of working with him.
During discussions to arrange plaintiff’s interview, plaintiff told Lipson and
Clearway she had been trying to complete a book about her ordeal in England, but that a
portion of her materials had been stolen. Lipson told plaintiff he would “scan and
digitize” her remaining materials to preserve them for her future use.
Plaintiff’s interview took place on September 12, 2009, at a studio in Van Nuys.
Clearway and an assistant picked up plaintiff at her home and brought her to the studio.
Defendants provided plaintiff with professional hair and makeup services. Plaintiff
brought three bins of materials with her to the studio. With plaintiff’s permission, Lipson
had the materials scanned. At plaintiff’s request, Lipson forwarded two DVD’s of the
scanned materials to plaintiff’s father’s address in North Carolina.
Plaintiff’s interview lasted five or six hours. Plaintiff was a “willing and talkative
interview subject. [Morris] found her to be very intelligent and a natural, animated
storyteller who use[d] interesting turns of phrase and allusions.” Plaintiff “readily”
talked about her life, her relationship with Anderson, how her pit bull had saved her life,
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and her efforts to have him cloned after his death. Plaintiff never declined to answer any
question.
At the conclusion of the interview, Lipson provided plaintiff with a standard
release agreement that he and Morris regularly used with interview subjects. Plaintiff
said her manager from the Joel Gotler Agency in Beverly Hills would have to review it
before she signed it. Lipson contacted Thomas Detrinis at the agency and forwarded him
a copy of the release. Several days later, Mr. Detrinis indicated he would advise plaintiff
to sign it.
However, when Lipson spoke with plaintiff, she refused to sign it, saying her
lawyer advised against it. Lipson suggested they get together over lunch to discuss her
concerns. Lipson, Clearway and plaintiff met at a restaurant in Riverside on
September 29, 2009. Lipson brought the release agreement, plus a check for the agreed-
upon $2,500 consideration. Because plaintiff had repeatedly said she was having
difficulty making progress on completing her book, Lipson also brought her a new laptop
computer. After going over the release agreement line by line, plaintiff made and
initialed a few changes and then executed the release (the 2009 Release).
After lunch, Lipson and Clearway went back to plaintiff’s home where she
showed them the truck that had been broken into. She had left materials for her book
inside and the materials were stolen. Lipson took photographs and plaintiff never
objected to him taking the pictures of her, her property or her dogs. Plaintiff posed for
several photos with her dogs.
After completing the taped interviews, Morris reviewed the research materials that
his production team had compiled. Because of the volume of material, Morris made
various editing decisions to pare down the relevant material. For instance, Morris did not
use the typed transcript plaintiff said reflected a taped phone call between Anderson and
plaintiff that occurred just before her arrest in England. Morris understood plaintiff
believed the transcript proved her innocence by showing Anderson’s complicity in their
meeting, among other things. However, Morris had concerns about its origins, was
unable to obtain a copy of the original recording for comparison, and felt it was
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problematic overall due to numerous handwritten modifications and sections blackened
out with a pen. Morris also decided not to reference materials that purported to show
plaintiff was arrested on other unrelated charges over the years, because it would reflect
negatively on her.
Morris included interview footage with two of the tabloid journalists involved in
the coverage of the Manacled Mormon story. Morris wanted the film to show how two
of the British tabloids “published wildly different accounts” of plaintiff and the incidents
for which she had been arrested. He wanted to show the process of how a story is
presented, and it was never his “intention to establish that one story or the other, or
neither, is ‘the truth.’ ”
After editing the material, it became apparent to Morris that a 30-minute television
episode as part of the overall series originally envisioned for Showtime would not do the
story “justice.” The agreement with Showtime was terminated, and the material was
developed into a full-length documentary film.
Lipson and Morris determined that a new release would need to be signed by
plaintiff as the 2009 Release granted rights only as to a Showtime television series. A
new release, largely identical to the 2009 Release, was prepared with the primary
modification being a granting of rights for the use of plaintiff’s interview, image and
story in a “documentary film for worldwide theatrical and ancillary distribution” instead
of a television series.
Lipson contacted plaintiff in March 2010 to discuss the new release agreement.
Plaintiff explained she was busy and upset because of then-pending proceedings by
animal control officials against one of her dogs, “Jazz Puppy,” for allegedly injuring a
woman. Lipson spoke with Morris who agreed they should offer to find an attorney who
could help plaintiff with the situation. On plaintiff’s behalf, Lipson hired Mark Rosten,
an attorney specializing in cases involving animals, as well as an animal behaviorist.
Lipson did not personally attend any hearings regarding the dog, but later learned that
efforts to save it were not successful.
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Lipson went to plaintiff’s home in March 2010 and left a copy of the new release
with her to sign. He told her they expected the film would qualify for Academy Award
submission, which it eventually did, and that they were planning on initially showing it at
various film festivals. Several days later, plaintiff faxed him the signed release
agreement with some minor handwritten changes (the 2010 Release). Lipson once again
returned to plaintiff’s home to pick up the hard copy of the executed release and to give
plaintiff a check for the additional $5,000 in consideration.
Plaintiff contacted Lipson on a couple of occasions and said certain items were
missing from the materials defendants had copied. Lipson went to plaintiff’s home and
helped her go through the boxes. On both occasions, they were able to locate the items
plaintiff thought were missing.
Sometime in early September 2010, a completed DVD copy of Tabloid was sent to
plaintiff. Defendants also invited plaintiff to the Los Angeles premiere of the film and
sent a limousine to pick her up. Plaintiff participated in a question and answer session
with Morris after the showing of the film. Lipson took photographs of plaintiff signing a
poster for a fan and posing with Morris holding a pink carnation.
b. Plaintiff’s opposition evidence
The opposition evidence consisted of plaintiff’s lengthy declaration; the
declaration of her expert Dr. Philip S. Wong, a clinical psychologist, regarding the
allegedly false subliminal messages in Tabloid; and, the declaration of her counsel
attesting to the authenticity of the attached exhibits. Plaintiff’s exhibits included a copy
of the transcription of the phone call between her and Anderson in England just before
her arrest which she states reflects her innocence of the charges; copies of
correspondence with defendants and various versions of the release agreements; copies of
scenes or “screen shots” from Tabloid showing images juxtaposed or overlaid with words
and phrases that portray plaintiff in a false light; copies of scenes or “screen shots” from
Tabloid that incorporate unauthorized photographs of plaintiff; a copy of an October
2011 article in The Guardian regarding an interview with Morris about the film in which
he makes disparaging comments about plaintiff; a copy of a Twitter post from Morris in
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July 2010 stating “I prefer the truth with some varnish on it. (Where did that nonsensical
phrase – the unvarnished truth – come from?)”; several additional documents reflecting
advertising or discussions regarding Tabloid; copies of photos taken by plaintiff showing
various items including a bracelet Lipson brought her as a gift; and a DVD containing
video and audio clips of Morris and Lipson discussing Tabloid at various venues. We
summarize those facts germane to our discussion.
Anderson and plaintiff were deeply in love and engaged to be married. She was a
virgin when they met, and she remained faithful and devoted to him. Plaintiff was a
former Miss Wyoming, and a petite 112-pound woman at the time, and did not, and could
not, force Anderson, who was approximately 300 pounds, to do anything against his will.
Plaintiff has always maintained her innocence of the charges brought against her in
England.
Following the media frenzy of the late 1970’s, plaintiff attempted to live a private
life. She lived in remote, rural areas, including for a time with her parents in North
Carolina, and eventually moved to her current residence in Southern California. She
maintains unlisted phone numbers. When the cloning of her pit bull, Booger, garnered
some media attention in 2008, plaintiff intentionally used her middle name, Bernann
McKinney, hoping to avoid anyone making the connection with the stories about her
from the 1970’s.
In August 2009, plaintiff was contacted by Clearway about sitting for an interview
with Morris to discuss the tabloid press, their tactics and “how they destroy privacy.”
Plaintiff was told it would be a short interview to be used in a television series Morris
was directing about the tabloid media for the Showtime network. Plaintiff was told it
would allow her to “clear [her] name” concerning the publicity she received following
her wrongful arrest in England for “carrying away” her fiancé and purportedly “raping”
him. Clearway promised plaintiff no defamatory material would be used, no material at
all from the Daily Mirror would be used, and Morris would provide her with copies of
any court records obtained during his investigation. To protect plaintiff’s privacy,
Clearway also promised plaintiff’s home, family members and pets would not be
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photographed, nor would the location of her home or her contact information be
identified or otherwise provided to any journalists or media. Based on those oral
representations, plaintiff agreed to be interviewed.
The interview was scheduled for September 12, 2009. Clearway told plaintiff a
town car would be sent to pick her up and take her to the studio and home again.
However, on the morning of the interview, Clearway showed up at plaintiff’s home with
several other individuals and “barged rudely” in, stating that photographs, including one
of plaintiff as Miss Wyoming, were necessary for the production. Clearway and the other
individuals “plundered through” plaintiff’s belongings and gathered numerous items,
including a suitcase containing an extensive collection of photographs, memorabilia, and
articles plaintiff had compiled for use in writing her book about her ordeal in England.
While surprised by Clearway’s actions, plaintiff believed her representations and allowed
the materials to be taken with them to the studio, believing she would assist Clearway in
sorting through the materials at the studio to find suitable photographs for defendants’
use. However, unbeknownst to plaintiff, defendants went through the materials while she
was being interviewed, and scanned them without her knowledge or consent. Numerous
items were taken and used in the film without her permission and never returned to her.
During the interview, Morris asked plaintiff about the tabloid media, but then
“strayed” into other subjects related to her personal life, like the cloning of Booger,
which she felt were not relevant to the production for Showtime as it had been described
to her. At no time did Morris ask her questions or ask her to provide evidence refuting
the tabloids’ claims she had worked as a sex hostess or prostitute. Plaintiff was never
invited for a follow-up interview to respond to any of the false comments and
representations made by the other individuals interviewed and presented in the film.
At the conclusion of the interview, Lipson asked plaintiff to sign a release
agreement regarding the use of the interview footage in defendants’ production. Plaintiff
refused to sign it, believing the language to be objectionable. Several days later, Lipson
sent her another release to sign. Plaintiff still found the language objectionable. She,
Clearway and Lipson agreed to meet on September 29, 2009, to discuss modifications to
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the release agreement. Plaintiff made several handwritten changes and strikethroughs to
the agreement and requested that a new document be prepared reflecting her changes.
Lipson told her to simply initial the changes and insisted she not have a lawyer look at it
before signing. Plaintiff initialed her handwritten changes and then signed the 2009
Release.
During this time, plaintiff discovered that a number of personal items taken from
her home by defendants on the day of the interview had not been returned, including
photographs of her as a baby, home movies of her family, two film treatments she had
written (one titled “A Very Special Love Story” and another concerning the cloning of
Booger), private correspondence, and items of memorabilia regarding her relationship
with Anderson. She spoke with Lipson about the missing items, but he denied any
knowledge of them.
Plaintiff continued to make inquiries to Lipson into the fall of 2009 about the
missing items. Lipson began to tell plaintiff she was “ ‘mentally ill’, ‘crazy’ and should
‘go see a psychiatrist.’ ” Lipson’s conduct was particularly upsetting to plaintiff because,
at that time, she was trying to save one of her beloved service dogs, Jazz Puppy, from
being euthanized by animal control officials.
In March 2010, Lipson contacted plaintiff saying a new release agreement needed
to be signed. Lipson began “attempting to blackmail” plaintiff into signing the new
release by finally admitting that certain of her personal items had been kept, but that they
would be returned to her if she would sign the new release.
Lipson also tried to take advantage of her concern about the fate of Jazz Puppy to
coerce her into signing the new agreement. Lipson offered to hire an attorney to help get
her dog released. On March 24, 2010, Lipson came to plaintiff’s home unannounced,
climbed over a fence, and handed her the new release agreement to sign. Plaintiff was
distraught and did not have her glasses. Plaintiff has poor vision and could not read the
release agreement. Lipson forced her to sign, yelling that her dog would die if she did
not cooperate, insisting the release contained “standard” language that a lawyer did not
need to review, and ultimately stabbing her hand with a pen in the process of trying to
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force her to sign. Plaintiff signed the 2010 Release believing Lipson would help her get
Jazz Puppy freed. Lipson then failed to do anything and sarcastically joked about the
death of her dog after animal control officials euthanized him, claiming to have had
someone “rattle” the dog’s cage so that he would growl and appear vicious.
In August 2010, Lipson returned to plaintiff’s home bearing flowers and a bracelet
as a gift. Lipson told plaintiff: “it’s a karma bracelet, you’re going to get what’s coming
to you.” Lipson continued to lie to plaintiff, failing to explain there was no Showtime
television series, but that a movie had been produced instead. He claimed the “television
series” would help plaintiff “find a buyer for [her] book and screenplay.”
Plaintiff eventually learned Tabloid was going to be shown in New York at a
documentary film festival in November 2010. Plaintiff went to the showing and saw the
completed film for the first time. She became so upset by the lies portrayed in the film,
and by the unauthorized personal items exploited in it, that she vomited. Plaintiff never
gave any permission or consent to use the personal photographs attached collectively to
Lipson’s declaration as exhibits 16 and 19, or the copies attached as exhibit 8 to her
declaration.
Dr. Philip Wong, a clinical psychologist, was asked to address whether Tabloid
“presents material in such a manner that the viewer develops beliefs about the Plaintiff,
Joyce McKinney, unconsciously, without being aware of the source of those beliefs.”
Dr. Wong offered his opinion the film contains subliminal messages that could result in
viewers obtaining a false view of plaintiff. The film manipulates the viewer’s perception,
in large part due to the manner in which the material is presented, specifically the
flashing of images and words for extremely short periods of time. Dr. Wong stated that
in Tabloid, the “manipulation of attention and perception leads to material being
presented at the fringes of a viewer’s awareness, which can facilitate the development of
rogue beliefs.”
3. Synopsis of Tabloid
To provide context for the discussion that follows, we include a synopsis of
Tabloid. The great majority of the film concerns the media coverage of plaintiff that
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transpired after her arrest in England in 1977, referred to by the parties as the Manacled
Mormon story, the moniker given by the Daily Mirror.
Plaintiff flew to England in September 1977, along with a friend Keith May, a
purported bodyguard named Gil Parker, and Jackson Shaw, a pilot. Parker and Shaw left
shortly after arriving in England and are not significant to the story. Plaintiff met
Anderson in Utah during college, before he left to undertake missionary work for the
Mormon Church. Plaintiff always maintained her trip to England was an effort to rescue
Anderson, who she claimed had been sent to England because of his relationship with
her. Within a few days of arriving, plaintiff located Anderson and, according to her, they
went to a cottage in Devon for three days to share a weekend together. She maintained
they planned to be married and that the sexual relations they had were consensual,
although plaintiff admitted in an interview with the BBC that she had tied Anderson to
the bed, but with ropes, not chains. She explained it was with his consent, and that she
had read about it in a book on sexual therapy to address the guilt Anderson had, from the
religious teachings of the Mormon Church, about engaging in sex.
The media frenzy began with coverage of the disappearance of Anderson, his
reappearance at his church several days later claiming to have been kidnapped and raped,
and plaintiff’s arrest for “carrying away” Anderson with May’s assistance. May was also
arrested. There were various reports arising from coverage of the pretrial court
proceedings, including some from law enforcement sources, that a fake gun, handcuffs
and a bottle of chloroform were found in plaintiff and May’s belongings--reports plaintiff
denied.
Several notable quotes used repeatedly thereafter in the tabloid press came from
plaintiff’s reported in-court statements during hearings to determine if she would be held
over for trial. One was that she had once been a member of the Mormon Church where
she had been given the nickname “Little Miss Perfect.” Perhaps the most famous quote
was plaintiff’s claim she would have “skied nude down Mount Everest with a carnation
up [her] nose” to be with Anderson, she loved him so much. Plaintiff was also dubbed
the “sex-in-chains girl.”
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After plaintiff was released on bond to await trial, the coverage of plaintiff
continued, including several stories of plaintiff at events in London. For instance, there
was coverage of her at a movie premier she attended with Peter Tory, a reporter for the
Daily Express, where she purportedly upstaged Joan Collins in terms of attention from
the press. There were also photographs published of her being kissed at a party by Keith
Moon, drummer for the rock band The Who, and plaintiff said she was also asked to
dance at that party by several members of the band The Bee Gees. After several months
free on bail, plaintiff and May fled England, in disguise, with a troupe of deaf actors
traveling to Canada.
Once back in the United States, plaintiff contacted the Daily Express and offered
to give them an exclusive. Tory, the reporter who had been covering the story for months
and had gone with plaintiff to the movie premiere, flew to America with a photographer
and spent several days interviewing plaintiff and May. In the meantime, the Daily Mirror
sent reporters to Los Angeles, where plaintiff had an apartment, to dig up information on
plaintiff. They reportedly spoke with the apartment manager, Steve Moscowitz.
Moscowitz had a key to plaintiff’s apartment because he was taking care of her dog while
she was gone. Moscowitz apparently took numerous photographs of plaintiff from her
apartment, including some nudes, and gave them to the Daily Mirror reporters.
During May and June 1978, the Daily Mirror and the Daily Express presented
extensive coverage of plaintiff, each depicting plaintiff in drastically different ways.
Under the heading “scoop of the year,” the Daily Express printed plaintiff’s story as she
told it to Tory, with some additional commentary by Tory. Plaintiff said the Daily
Express printed her story accurately (“word for word”), including her accusations against
the Mormon Church. The articles, largely casting plaintiff in a positive light, were
accompanied by numerous photographs in which plaintiff and May posed, including
several in the purported disguises they used because they feared arrest and extradition to
England, and one with plaintiff clenching a carnation in her teeth.
The Daily Mirror trumpeted its claim of revealing “The Real McKinney,”
referring to her as a “sex hostess” who earned thousands of dollars selling sex and
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claiming that is how she earned the money to travel to England. They also printed
numerous nude photographs of plaintiff, some of which the Mirror claimed were from
modeling assignments for sexual bondage magazines.
A smaller portion of Tabloid is devoted to additional aspects of plaintiff’s life that
garnered press attention over the years, including her 1984 arrest in Utah for allegedly
stalking Anderson at his work, and the 2008 cloning of plaintiff’s dog in Korea.
Tabloid opens with a montage of photographs of plaintiff as a child and teenager.
It then moves into a brief segment from the 1984 Trent Harris film in which plaintiff
reads from her manuscript titled “A Very Special Love Story.” The film cuts to a clip of
a BBC interview of plaintiff from the 1970’s, and then segues to the first segment of
plaintiff’s interview with Morris, discussing her upbringing and her first meeting with
Anderson. The rest of the film consists of alternating segments of the interviews with
plaintiff and the other interview subjects, and montages of photographs, cartoons and
animated graphics, portions of actual tabloid headlines and articles, and additional artistic
elements. There are also a number of video clips from archival BBC news reports about
the Manacled Mormon story.
One technique used throughout the film is the overlay of quoted words or phrases
from an interviewee over a particular photograph, or the overlay of portions of some of
the actual tabloid headlines over a photograph or video still. As an example, several
minutes into the film, three separate portions of actual tabloid headlines appear, in
succession, on a still image of plaintiff from her interview with Morris: “Joyce
McKinney, Ex-Beauty Queen, Joyce McKinney, Sex Hostess, Joyce Mckinney, Little
Miss Perfect.”
In addition to plaintiff, the individuals interviewed in the film are Troy Williams, a
former Mormon missionary and gay rights activist; Shaw, the pilot that accompanied
plaintiff and May to England; Tory, the reporter from the Daily Express; Kent Gavin, a
photographer for the Daily Mirror and one of the reporters who went to Los Angeles and
obtained the photographs from Moscowitz; and Dr. Jin Han Hong, the doctor in Seoul,
Korea who performed the cloning of plaintiff’s pit bull. Rarely are any audible questions
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heard from Morris. The interviewees are filmed talking in a narrative style, largely
without interruption. The film notes that May was not interviewed as he passed away
several years earlier, Anderson did not respond to requests to be interviewed, and
defendants were unable to locate Moscowitz.
4. The Trial Court’s Ruling
In February 2012, after briefing and oral argument, the court granted defendants’
motion. The court determined defendants had established that their conduct in creating
and distributing the documentary film Tabloid formed the primary basis for plaintiff’s
claims, and constituted acts in furtherance of their free speech rights. The court also
determined the film concerned an issue of public interest, namely tabloid journalism, as
well as cultism and the Mormon religion. The trial court therefore concluded defendants
had met their threshold burden in showing the challenged causes of action were based on
conduct protected by section 425.16. The court determined plaintiff was a limited
purpose public figure and she was therefore required to show defendants acted with
actual malice under New York Times in attempting to establish the probability of
prevailing on her claims. The court ruled plaintiff had failed to meet that standard. The
court therefore struck the misappropriation claims, the invasion of privacy claims and the
defamation claim.
As to the intentional infliction of emotional distress claim, the court ruled that to
the extent the cause of action was based on activity protected by section 425.16, it was
not viable. However, to the extent it was based on other allegedly outrageous conduct by
defendants, the court ruled the cause of action survived to be resolved on the merits with
the remainder of plaintiff’s tort and contract claims. Plaintiff filed this appeal
challenging the court’s order granting defendants’ motion.
DISCUSSION
“A ruling on a section 425.16 motion is reviewed de novo. [Citation.] We review
the record independently to determine whether the asserted cause of action arises from
activity protected under the statute and, if so, whether the plaintiff has shown a
probability of prevailing on the merits.” (Stewart v. Rolling Stone, LLC (2010) 181
17
Cal.App.4th 664, 675 (Stewart); accord, Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal.4th 260, 269, fn. 3.)
1. Section 425.16
Section 425.16 was enacted to provide a procedure for the early dismissal of
causes of action that infringe on the exercise of the constitutional rights to free speech
and to petition for a redress of grievances. “A cause of action against a person arising
from any act of that person in furtherance of the person’s right of petition or free speech
under the United States Constitution or the California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim.” (§ 425.16, subd. (b)(1).) To better effectuate the statutory purpose of
safeguarding the valid exercise of the rights to free speech and to petition for a redress of
grievances, the Legislature amended section 425.16 in 1997 to expressly declare the
statute “shall be construed broadly.” (§ 425.16, subd. (a); Stats. 1997, ch. 271, § 1.)
In resolving a special motion to strike under section 425.16, the court engages in a
two-step analysis. The court must first determine whether the moving defendant “has
made a threshold showing that the challenged cause of action is one arising from
protected activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) If the
court determines the defendant met this initial burden, “it must then determine whether
the plaintiff has demonstrated a probability of prevailing on the claim.” (Ibid.) “In
making its determination, the court shall consider the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is based.”
(§ 425.16, subd. (b)(2).) Only those causes of action that satisfy “both prongs” of
section 425.16, i.e., arise from protected activity and lack minimal merit, are subject to
being stricken under the statute. (Navellier, at p. 89.)
18
2. Step One: Defendants Established the Challenged Causes of Action
Arise From Conduct in Furtherance of the Exercise of Their First
Amendment Right to Free Speech on a Public Issue
The critical consideration in resolving whether a defendant has satisfied the first
prong of the statute is determining whether the challenged claims arise from the
defendant’s protected free speech or petitioning activity. (City of Cotati v. Cashman
(2002) 29 Cal.4th 69, 78.) Subdivision (e) of section 425.16 describes four categories of
protected conduct within the meaning of subdivision (b)(1). Such conduct includes oral
and written statements made in a public forum in connection with a public issue and, as
relevant here, “any other conduct in furtherance of the exercise of the constitutional right
of petition or the constitutional right of free speech in connection with a public issue or
an issue of public interest.” (§ 425.16, subd. (e)(4).)
In her causes of action for defamation, invasion of privacy, misappropriation and
intentional infliction of emotional distress, plaintiff seeks to impose liability on
defendants for their conduct in “writing, filming, produc[ing], and distribut[ing] the film
‘Tabloid,’ ” publicizing and promoting the film through the distribution of trailers and
posters, and presenting false depictions of her in the film. This was undeniably conduct
in furtherance of defendants’ exercise of their free speech rights protected by the First
Amendment within the meaning of section 425.16, subdivision (e)(4).
“Film is a ‘significant medium for the communication of ideas’ and, whether
exhibited in theaters or on television, is protected by constitutional guarantees of free
expression.” (Polydoros v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th
318, 323-324; accord, Joseph Burstyn v. Wilson (1952) 343 U.S. 495 [expression by
means of film is protected by First and Fourteenth Amendments]; see also Stewart, supra,
181 Cal.App.4th at p. 682 [First Amendment protects “ ‘all forms of expression . . .
written and spoken words (fact or fiction), music, films, paintings, and entertainment’ ”
sold for profit or not]; Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133,
143 (Tamkin) [“creation of a television show is an exercise of free speech”].)
19
Plaintiff does not argue the making of a film is not an exercise of free speech.
Rather, plaintiff contends the subject matter of the film Tabloid does not concern a public
issue or a matter of public interest within the meaning of the statute. We disagree.
Section 425.16 does not expressly define “public interest,” but, it does mandate
the statute is to be construed “broadly.” (Id., subd. (a).) Moreover, a “public” issue need
not concern a matter related to the “lofty” goal of self-government or otherwise be
“significant.” (Navellier, supra, 29 Cal.4th at p. 91; see also Nygard, Inc. v. Uusi-
Kerttula (2008) 159 Cal.App.4th 1027, 1042 (Nygard) [public interest present where
allegedly defamatory magazine article concerned prominent Finnish businessman of
“extensive interest” to Finnish public]; Seelig v. Infinity Broadcasting Corporation
(2002) 97 Cal.App.4th 798, 807-808 [public interest present regarding on-air comments
made by radio talk show hosts about contestant in popular reality television show].)
To qualify as protected activity under the statute, it is sufficient for the issue to be
one in which the general public takes an interest. (Nygard, supra, 159 Cal.App.4th at
p. 1042; accord, Tamkin, supra, 193 Cal.App.4th at p. 143.) Stated another way, a
“statement or other conduct is made ‘in connection with a public issue or an issue of
public interest’ (§ 425.16, subd. (e)(4)) ‘if the statement or conduct concerns a topic of
widespread public interest and contributes in some manner to a public discussion of the
topic.’ [Citation.]” (Stewart, supra, 181 Cal.App.4th at p. 677.)
Plaintiff contends defendants did not satisfy the public interest requirement of
section 425.16, subdivision (e)(4) because the only themes in Tabloid are plaintiff’s “life,
personality and role in the Manacled Mormon story.” Plaintiff contends those issues may
have been a matter of public interest in England some 30 years ago, but are not, and were
not ever, a matter of public interest in America at any time.
As support for this argument, plaintiff relies primarily on Dyer v. Childress (2007)
147 Cal.App.4th 1273 (Dyer), in which the denial of a screenwriter defendant’s special
motion to strike was affirmed on appeal. The plaintiff there was a private individual who
had known the defendant in film school, and sued over the misuse of his persona when a
fictional character in defendant’s screenplay was given the same name as plaintiff. (Id. at
20
pp. 1276-1277.) The screenplay was made into the movie Reality Bites (Jersey Films;
Universal Pictures 1994). The appellate court rejected the defendant’s contention the
challenged conduct qualified as protected activity on the theory the fictional movie
addressed the broad popular theme of the challenges facing “generation X” in the 1990’s.
The court explained that in determining whether the defendant’s conduct was a qualifying
act within the meaning of the statute, “we focus on the specific nature of the challenged
protected conduct, rather than generalities that might be abstracted from it.” (Id. at p.
1279.) Noting that the specific dispute concerned the misuse of the plaintiff’s persona by
portraying him as a “rebellious slacker,” the court found there was no discernible public
interest in the plaintiff’s persona. “Although Reality Bites may address topics of
widespread public interest, defendants are unable to draw any connection between those
topics and [plaintiff’s] defamation and false light claims.” (Id. at p. 1280.)
Here, in contrast, the specific nature of defendants’ challenged conduct is
intertwined with the film’s overall focus on tabloid journalism. Plaintiff’s opposing
declaration makes plain the challenged claims are based on the creative decisions made
by defendants in presenting her story in the context of the larger issues of the tabloid
media frenzy that surrounded her arrest and how the tabloid media chose to pursue and
present her story. She complains she was presented in a false light because her story was
juxtaposed with the false and derogatory versions presented by the tabloids, and that the
“prevaricating” tabloid reporters calling her a prostitute are presented as telling the truth,
while she is presented as a liar. Dyer is of no assistance to plaintiff because she
acknowledges the role her story plays in the film’s portrayal of tabloid journalism.
At oral argument, counsel for plaintiff argued Tabloid cannot be found to concern
the broader subject of tabloid journalism because it does not provide any direct critical
analysis of tabloid journalism and does not discuss or compare other instances of tabloid
tactics, but instead focuses entirely on the personal narrative of plaintiff’s life
experiences. We reject the notion the documentary film would have had to include
academic discussion or critique of tabloid journalism to satisfy the first prong of the
statute. Defendants made the creative decision to showcase plaintiff’s rather dramatic
21
experiences with the tabloid media to portray how events are presented and distorted in
the tabloid press. This does not mean Tabloid does not concern the subject of tabloid
journalism. What is left unsaid, leaving the viewer to draw his or her own conclusions,
may speak volumes and is not a less deserving form of expression than the direct and
obvious.
We conclude defendants’ film presents a view of how the tabloid media operates
as seen through the lens of plaintiff’s personal experiences in the maelstrom of the
Manacled Mormon media circus. The film also includes additional aspects of plaintiff’s
personal life, like the later publicity she received over the cloning of her dog. But, the
overall theme of Tabloid nevertheless concerns the broader subject of tabloid journalism,
and not merely plaintiff’s persona. The subjects of tabloid journalism and the oftentimes
questionable tactics of tabloid reporters and paparazzi photographers are matters of
widespread public interest. Along with the related issues of the overnight rise of
“celebrities” from tabloid coverage and reality television, the subject is so prevalent, it
borders on a societal obsession. It is not mere coincidence Tabloid was released, as
defendants note, at a time when the News of the World phone-hacking scandal was
making international headlines. It serves to underscore that issues related to tabloid
journalism are of widespread public interest, and have been for years. It is indisputable
the film, whatever its artistic merit, contributes “in some manner to a public discussion”
of that topic. (Stewart, supra, 181 Cal.App.4th at p. 677.)
Defendants discharged their initial movant’s burden to show the challenged claims
were based on conduct protected by section 425.16, thus shifting the burden to plaintiff to
establish the probability of prevailing on her claims.
3. Step Two: Plaintiff Did Not Show a Probability of Prevailing on Any
of the Challenged Causes of Action
To defeat a section 425.16 motion, a plaintiff must state and substantiate a legally
sufficient claim. (Navellier, supra, 29 Cal.4th at p. 88.) “ ‘Put another way, the plaintiff
“must demonstrate that the complaint is both legally sufficient and supported by a
sufficient prima facie showing of facts to sustain a favorable judgment if the evidence
22
submitted by the plaintiff is credited.” ’ [Citation.]” (Id. at pp. 88-89.) While the court
does not weigh credibility or “the probative strength of competing evidence [citation], the
motion to strike should be granted if the defendant ‘defeats the plaintiff’s showing as a
matter of law, such as by establishing a defense or the absence of a necessary element.’
[Citation.]” (Carver v. Bonds (2005) 135 Cal.App.4th 328, 344; accord, Tamkin, supra,
193 Cal.App.4th at p. 145.)
In arguing plaintiff could not establish a probability of prevailing, defendants
raised several defenses to the challenged causes of action, including: (1) a constitutional
defense based on the First Amendment invoking the New York Times actual malice
standard; (2) the defense of privilege to present plaintiff’s interview and story in the film
based on her express written consent in the 2010 Release; and (3) the common law and
statutory defense of newsworthiness or public interest. We conclude defendants
presented evidence establishing the applicability of the First Amendment defense, as well
as the newsworthiness or public interest defense, and that plaintiff failed to meet her
burden in substantiating the challenged causes of action.
a. New York Times
Under New York Times “[i]f the person defamed is a public figure, he cannot
recover unless he proves, by clear and convincing evidence [citation], that the libelous
statement was made with ‘ “actual malice” -- that is, with knowledge that it was false or
with reckless disregard of whether it was false or not.’ [Citation.]” (Reader’s Digest
Assn. v. Superior Court (1984) 37 Cal.3d 244, 256 (Reader’s Digest).) “ ‘[R]eckless
conduct is not measured by whether a reasonably prudent man would have published, or
would have investigated before publishing. [Rather,] [t]here must be sufficient evidence
to permit the conclusion that the defendant in fact entertained serious doubts as to the
truth of his publication. Publishing with such doubts shows reckless disregard for truth
or falsity and demonstrates actual malice.’ [Citation.]” (Id. at pp. 256-257.)
The New York Times standard has been held to “apply to all claims whose
gravamen is the alleged injurious falsehood of a statement: ‘[that] constitutional
protection does not depend on the label given the stated cause of action’ [citation], and no
23
cause of action ‘can claim . . . talismanic immunity from constitutional limitations[.]’
[Citation.]” (Blatty v. New York Times Company (1986) 42 Cal.3d 1033, 1042; accord,
Reader’s Digest, supra, 37 Cal.3d at p. 265 [actual malice standard for public figure
plaintiff applies to claims for intentional infliction of emotional distress and both false
light and intrusion on seclusion invasion of privacy claims]; Tamkin, supra, 193
Cal.App.4th at p. 149 [same]; Stewart, supra, 181 Cal.App.4th at p. 682 [applying New
York Times standard to claims for common law and statutory misappropriation].) The
defense applies to all of the challenged causes of action.
b. Public figures
Several years later in Gertz v. Robert Welch (1974) 418 U.S. 323 (Gertz), the court
refined the definition of public figures subject to the New York Times actual malice
standard. The public figure designation “may rest on either of two alternative bases. In
some instances an individual may achieve such pervasive fame or notoriety that he
becomes a public figure for all purposes and in all contexts. More commonly, an
individual voluntarily injects himself or is drawn into a particular public controversy and
thereby becomes a public figure for a limited range of issues. In either case such persons
assume special prominence in the resolution of public questions.” (Id. at p. 351, italics
added.) In so clarifying, the court underscored its intent to assure “to the freedoms of
speech and press that ‘breathing space’ essential to their fruitful exercise.” (Id. at p. 342.)
In characterizing a plaintiff as a limited purpose public figure, “[i]t is not
necessary to show that a plaintiff actually achieves prominence in the public debate; it is
sufficient that ‘[a plaintiff] attempts to thrust himself [or herself] into the public eye’
[citation] or to influence a public decision.” (Copp v. Paxton (1996) 45 Cal.App.4th 829,
845-846, italics added; accord, Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 25 [plastic
surgeon was limited purpose public figure regarding subject of plastic surgery based on
voluntary acts of writing articles in medical journals and beauty magazines and appearing
on local television shows “touting the virtues of cosmetic and reconstructive surgery”].)
Public figure status is judged under a totality of circumstances approach, with the focus
24
on whether the individual undertook some voluntary or affirmative act to influence or
participate in a public issue. (Reader’s Digest, supra, 37 Cal.3d at pp. 253-255.)
c. Plaintiff is a limited purpose public figure
The trial court found plaintiff was a limited purpose public figure. “On appeal, the
trial court’s resolution of disputed factual questions bearing on the public figure
determination is reviewed for substantial evidence, while the trial court’s resolution of
the ultimate question of public figure status is subject to independent review for legal
error.” (Khawar v. Globe International (1998) 19 Cal.4th 254, 264 (Khawar).) We agree
plaintiff is properly characterized as a limited purpose public figure in the context of this
dispute. (Reader’s Digest, supra, 37 Cal.3d at pp. 253-254 [limited purpose public figure
subject to actual malice standard only as to allegedly defamatory publications related to
his or her role in the public issue].)
By expressly agreeing to participate in a taped interview to be used in a production
for a broad public audience, plaintiff voluntarily and affirmatively injected herself into a
public discussion about the tabloid media, their tactics and how they purportedly present
or misrepresent the truth, and “destroy” privacy. While plaintiff argues she was misled
about the final format of the production, she does not deny she was willing to give a
taped interview and participate in a production for a Showtime television series regarding
the tabloid media, explaining her experiences and expressing her opinions about the
subject. In the film, plaintiff speaks openly and with great conviction about her opinions
regarding the conduct of the tabloid reporters that covered her story, as well as repeated
references to the Mormon Church being a cult and the powerful entity that she believes
was behind the false accusations against her and which ultimately resulted in her arrest
and the unwanted media attention.
Moreover, plaintiff’s own evidentiary submissions undercut her assertion she is
not properly characterized as a limited purpose public figure. Plaintiff stated in her
declaration she received numerous offers to tell her story over the past 35 years from
“several media outlets”, including a lucrative offer from Penthouse Magazine. She states
she refused to participate in any of them in order to protect her privacy and maintain
25
control of her “public image.” But the numerous offers were nonetheless made,
demonstrating the public remained interested in her story over the course of the 35 years
since it was first published. She also indicated she had not yet published her own book
about her ordeal because she has been trying to find “the proper venue for [her] cult
rescue saga.” While couched in language attempting to show her efforts to stay out of the
limelight, plaintiff’s statements nonetheless reflect her belief there is a continuing public
interest in her story since she believes there is a market for her own book and/or
screenplay.
In several segments of her interview in Tabloid, plaintiff describes the celebrity
status she attained following her arrest in England. She described herself as being
“suddenly a celebrity” and “a phenomenon,” and that she received thousands of letters
from the public sympathizing with her predicament, as well as numerous marriage
proposals. She said that upon her release on bail, she found her bed and breakfast in
London filled with dozens of pink carnations (presumably all in reference to plaintiff’s
widely reported “carnation” quotation from the court proceedings). Plaintiff said “when
you’re famous,” you learn who your true friends are. Once back home in America and
living with her parents in North Carolina, plaintiff explained that even though they lived
in a rural area, the paparazzi came by regularly and hounded her. She bought a guard dog
to keep people from coming up to the house. She said this behavior went on “like that for
years.” Such statements belie the claim there was no interest in plaintiff’s story in
America, or in the years after she returned from England.
Plaintiff raised factual disputes about the validity and scope of both the 2009 and
the 2010 Releases, as well as the alleged misrepresentations made to her about the nature
of the film production. However, plaintiff does not deny she voluntarily agreed to
participate in a production which she believed would be shown as a series on the
Showtime network, and to express her opinions about the tabloid press and how “they
destroy privacy.” It is therefore beyond dispute plaintiff willingly injected herself into a
public discussion about the tabloid press and how it operates, based on her own firsthand
experiences, and that she sought to articulate her beliefs for use in the program in a
26
manner to influence public opinion about those subjects. On such facts, plaintiff is
properly characterized as a limited purpose public figure. (Gertz, supra, 418 U.S. at p.
351.)
d. Actual malice
Because plaintiff is a limited purpose public figure with respect to claims arising
from the production and distribution of Tabloid, plaintiff was required to show clear and
convincing evidence defendants acted with actual malice.
The “actual malice” standard is a subjective test, “under which the defendant’s
actual belief concerning the truthfulness of the publication is the crucial issue. [Citation.]
This test directs attention to the ‘defendant’s attitude toward the truth or falsity of the
material published . . . [not] the defendant’s attitude toward the plaintiff.’ [Citation.]”
(Reader’s Digest, supra, 37 Cal.3d at p. 257.) “[O]therwise stated, ‘there must be
sufficient evidence to permit the conclusion that the defendant . . . had a “high degree of
awareness of . . . probable falsity.” ’ [Citation.]” (Khawar, supra, 19 Cal.4th at p. 275.)
“To prove actual malice, therefore, a plaintiff must ‘demonstrate with clear and
convincing evidence that the defendant realized that his statement was false or that he
subjectively entertained serious doubts as to the truth of his statement.’ [Citation.]”
(Ibid.)
The primary evidence relied upon by plaintiff to show actual malice included:
(1) the conduct by Lipson purportedly showing ill will or hostility toward plaintiff in the
handling of her personal materials, the death of her dog, and in the process of obtaining
her signature on the release agreements; (2) statements made by Morris and Lipson about
the film; and (3) Morris’s failure to include certain material in the film.
Assuming it is true that Lipson was insensitive, even boorish, regarding plaintiff’s
service dog, her purportedly missing personal items, and the efforts to obtain plaintiff’s
signature on the 2010 Release, that does not demonstrate Lipson, Morris, or anyone
involved in creating Tabloid harbored doubts about the accuracy of the material presented
in the film. Even assuming plaintiff’s evidence raises an inference of ill feelings or
callousness toward plaintiff personally, the focus of inquiry is on defendants’ subjective
27
beliefs about the truth or falsity of the material presented in the film, not defendants’
attitude toward plaintiff. (Reader’s Digest, supra, 37 Cal.3d at p. 257.)
Plaintiff’s reliance on the statements made by Lipson and Morris during
promotional events and at postscreening question and answer sessions with audience
members is similarly unavailing. One of the clips presented is of Lipson speaking with
audience members after a showing. The pertinent quotation, according to plaintiff, is
where Lipson says he does not “want to know the truth” about what really happened
between plaintiff and Anderson. However, he then adds that it is probably not possible to
know the whole truth. With respect to plaintiff, Lipson says that she was quite willing to
tell her story and “I think we did a good job” of presenting it. No other quotations are
presented indicating any subjective belief by Lipson that any of the material included in
Tabloid was inaccurate or that he harbored ill will toward plaintiff.
The balance of the audio and video clips are of Morris at various venues
discussing or promoting the film. In one clip, Morris says he believes the essence of
tabloid journalism, which has always depended on sensationalism, was revealed by
Tory’s statement in the interview, without any apparent self-consciousness, that he thinks
plaintiff actually used ropes to tie up Anderson, but he reported she used chains because
chains just sounded “better.” In another clip, after reiterating the extremes pursued by
tabloid journalists to get a story and sell papers, even resorting to fabrication, Morris says
he believes the heart of any real journalism must be the pursuit of the truth and that
reality is stranger than fiction and makes for good storytelling.
At another venue, Morris is asked if he believes plaintiff’s version of what
occurred. Morris states he cannot be sure. He believes plaintiff’s position that a woman
cannot rape a man, but as to all the details, he explains it is difficult to know for sure
because the story, having largely taken place in private, is dependent on subjective first
person narratives. He says ultimately we are all “unreliable narrators” to some degree.
Morris believes there are issues surrounding what happened that are unresolvable. In
putting together the film, he found there were questions he simply could not answer
definitively, but he put in those facts which he believed to be true, to the extent the
28
absolute truth can be known. Morris concedes he was less interested in attempting to
ascertain the absolute truth, and more interested in telling the story of how the tabloids
portrayed plaintiff. He explains the tabloids chose to present two divergent stories of
plaintiff, one of her as a whore, the other as a virgin, and neither is true.
In yet another clip, Morris explains he does not engage in “adversarial”
interviewing, trying to “badger” the interviewee with embarrassing questions. Morris
feels that type of interviewing interferes with the interviewee’s ability to tell their story.
He says he believes it is important to pursue the truth, but to let people tell their version
of their story, from their perspective. Morris states the majority of Tabloid is plaintiff
telling her own story, which he found to be rich and complex, and he tried to portray that
complexity.
Plaintiff also fails to show Morris’s Twitter comment was made in relation to
anything having to do with plaintiff or the film Tabloid. “I prefer the truth with a little
varnish on it” is simply a colorful statement of opinion that does not assist plaintiff.
Morris’s statement in The Guardian article about plaintiff having gone to England with
“heavies” also does not suffice. It is not disputed plaintiff went to England with three
men to find Anderson, at least one of whom she described as a “bodyguard.” Defendants
also obtained numerous articles reporting that law enforcement officials had said a fake
gun and other items were found in plaintiff’s belongings upon her arrest. The fact Morris
may be ambivalent about plaintiff’s true motives in going to England, based on that
information, does not translate into proof he harbored serious doubts about the truth of
any fact presented in the film. Tabloid presents those facts in addition to plaintiff’s
version that no kidnapping at all took place.
Additional quotations from Morris include: “I tried to create a sympathetic and
loving portrayal of Joyce. She looks great in the movie. She is a powerful and
convincing presence”; she is “fabulous”; and, “I like Joyce. I still find Joyce endlessly
fascinating.”
The Morris and Lipson quotations, whether viewed singly or cumulatively, do not
constitute clear and convincing evidence of actual malice. None shows that defendants
29
“ ‘ “had a high degree of awareness of . . . probable falsity” ’ ” or “ ‘subjectively
entertained serious doubts as to the truth’ ” of any material included in the film.
(Khawar, supra, 19 Cal.4th at p. 275.) Most of the statements, read in context, actually
defeat a finding of actual malice as they reflect Morris’s and Lipson’s subjective beliefs
they did not feel it was possible to know the absolute truth. The statements show the
movie presents, in essence, an open-ended, unresolvable question about what actually
happened, how the truth can be manipulated or obscured, or even innocently altered by
each narrator’s own subjective view of the circumstances.
Morris’s decision to not include certain material, such as the transcript of the
telephone conversation between Anderson and plaintiff, also is of no assistance to
plaintiff. Morris explained that various editing choices had to be made because of the
volume of material, and with respect to that specific document, he was unable to establish
its origins and was concerned about including it because of the modifications that had
been made to it. Morris did include a portion of plaintiff’s interview discussing the taped
phone conversation and how that ultimately led to her arrest. Morris also expressly stated
that he chose to edit out certain materials specifically because he did not feel they were
germane and could reflect negatively on plaintiff.
Lack of actual malice is further bolstered by the fact defendants included material
in Tabloid bearing on the credibility of the tabloid journalists. Tory, from the Daily
Express, is referred to as a “gossip columnist.” The film includes a segment from his
interview in which he laughingly admits he understood plaintiff had purportedly tied up
Anderson with ropes, but “chains sounds better,” explaining the genesis of the “sex-in-
chains” reference that became ubiquitous for all media outlets in discussing the story. In
another segment, Tory admits he feels plaintiff used him in a manner of speaking by
going to the premiere and being seen in public when, all the while, she planned to flee
England. His bias appears plain and no reasonable viewer would place great weight on
his hyperbolic statements of opinion, such as referring to plaintiff as “barking mad,”
referencing both the dog cloning and Manacled Mormon stories.
30
Gavin, the photographer from the Daily Mirror, is shown laughing about
plaintiff’s purported suicide attempt after learning of the Mirror’s article called “The
Real McKinney” portraying plaintiff as a prostitute. A segment of his interview is also
included in which he admits the Mirror, after obtaining the photographs from Moscowitz
(some of which he apparently took from plaintiff’s apartment), paid for Moscowitz to go
to Mexico so that he would not be located or speak with anybody else about the
information and photographs he had taken from plaintiff’s apartment and given to the
Mirror. He is also shown stating the negatives of the nude photographs of plaintiff that
were published in the Mirror which would purportedly show that none of the
photographs had been altered (plaintiff claimed many of the photos had been) were
inexplicably lost when the ownership of the paper changed.
Moreover, the record shows plaintiff publicly admitted to many of the facts and
much of the material presented in Tabloid. In taped interviews for the BBC during 1977
and 1978, in articles with the Daily Express and/or during the interview footage for
Tabloid, plaintiff admitted: she had tied Anderson to the bed with ropes, with his
consent, because she read about it in a book about sexual therapy and she was trying to
help Anderson who was “sexually repressed” and “brainwashed” by the Mormon Church;
she worked for several days on an “odd” modeling assignment booked for her by an
unethical agent when she was a struggling actress, but had no idea the photographs would
be used in a bondage-style publication; she posed nude in numerous photographs but
explained they were intended to be private and solely for Anderson, and Moskovitz gave
them to the Daily Mirror without her permission; she explained she gave massages but
declined to answer whether she ever earned money for doing so; she went to England
with “two bodyguards” to rescue Anderson because she feared the response of the
church; while out on bail awaiting trial, plaintiff obtained and used the birth certificates
of two deceased individuals for her and May to use and made disguises for them to leave
the country; she went to Utah in 1984 and saw Anderson at the airport, but was not
stalking him as she only went to find out what he was doing to have a proper ending for
her manuscript about their relationship.
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Plaintiff further argues the declaration of her expert went unchallenged by
defendants. It is true defendants did not challenge Dr. Wong’s declaration. However, the
opinions offered by Dr. Wong address, at most, the possibility that some viewers of
Tabloid could be led to believe, on a subliminal level, the negative image of plaintiff
presented by the tabloid papers was true. Even assuming his declaration raised sufficient
admissible evidence in that regard, it is not evidence showing any defendant acted with
actual malice in creating and distributing the film.
Plaintiff also suggests defendants’ ill will toward her may be inferred by their
failure to allow her to directly address the tabloid claims against her. But, Tabloid just
rehashes how the media circus around the Manacled Mormon story unfolded in 1977 and
1978, with the bulk of the interview footage used in the film coming from plaintiff
herself. Plaintiff was fully aware of the scope of the claims made against her by the
tabloids. Over the years, she has consistently and repeatedly denied and provided
explanations for the more salacious of tabloid claims, including that she worked as a
prostitute. Plaintiff does not provide any evidence that Morris or any defendant
prevented her, during her interview for the film, from explaining or refuting in greater
detail the claims she had worked as a prostitute and had posed as a model for bondage
magazines. She says only she was not specifically asked questions about those issues or
asked back for a follow-up interview. Neither of these claimed failings on the part of
defendants raises any inference of actual malice.
Plaintiff’s inability to present clear and convincing evidence of actual malice is
fatal to all of the challenged claims. (Reader’s Digest, supra, 37 Cal.3d at p. 265 [actual
malice standard for public figure plaintiff applies not only to defamation but to claims for
intentional infliction of emotional distress and false light and intrusion on seclusion
invasion of privacy claims]; Tamkin, supra, 193 Cal.App.4th at p. 149 [same]; Stewart,
supra, 181 Cal.App.4th at p. 682 [applying actual malice standard to common law and
statutory misappropriation claims].) As the Supreme Court has explained, “liability
cannot be imposed on any theory for what has been determined to be a constitutionally
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protected publication.” (Reader’s Digest, supra, at p. 265.) The claims were properly
stricken pursuant to section 425.16.2
e. Newsworthiness or public interest defense
Plaintiff’s claims for common law and statutory misappropriation (Civ. Code,
§ 3344) include allegations that defendants misappropriated, without her valid consent,
some of her personal photographs and videotapes and used them in Tabloid or in the
promotional materials for the film.
There are two types of common law misappropriation claims. (Dora v. Frontline
Video, Inc. (1993) 15 Cal.App.4th 536, 541-542 (Dora).) One type is the more common
right of publicity. “The other is the appropriation of the name and likeness that brings
injury to the feelings, that concerns one’s own peace of mind, and that is mental and
subjective.” (Id. at p. 542.) California recognizes a “public interest” defense to a
common law claim for misappropriation of one’s name or likeness. (See Stewart, supra,
181 Cal.App.4th at p. 680; accord, Dora, supra, at pp. 542-543.) The public interest
defense is similar to the newsworthiness exemption or defense applicable to a statutory
claim for commercial misappropriation. (Stewart, at p. 680; Dora, at pp. 544-546.)
Subdivision (d) of Civil Code section 3344 provides: “For purposes of this section, a use
of a name, voice, signature, photograph, or likeness in connection with any news, public
2 Plaintiff’s cause of action for invasion of privacy/intrusion into seclusion includes
allegations defendants gave plaintiff’s unlisted private cell phone number and address to
third parties and media outlets and showed images of her home. Because plaintiff failed
to discuss this aspect of her claim in her briefs, we consider the matter waived. (Kim v.
Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [appellate court need not “ ‘consider
points which are not argued or which are not supported by citation to authorities or the
record’ ”].) In any event, the record establishes the claim fails on the merits because
plaintiff provided her contact information to defendants (they did not obtain her contact
information surreptitiously), and she presented no evidence whatsoever that they gave her
contact information to any third party or otherwise showed any identifiable aspect of her
home in Tabloid. (See Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 286-288
[discussing elements of intrusion into seclusion cause of action].)
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affairs, or sports broadcast or account, or any political campaign, shall not constitute a
use for which consent is required under subdivision (a).”
The public interest or newsworthiness defense has been construed broadly to
protect the valid exercise of First Amendment rights. (See, e.g., Gionfriddo v. Major
League Baseball (2001) 94 Cal.App.4th 400, 410-411 [“Entertainment features receive
the same constitutional protection as factual news reports” and the “public interest is not
limited to current events; the public is also entitled to be informed and entertained about
history.”]; accord, Stewart, supra, 181 Cal.App.4th at p. 681; Maheu v. CBS, Inc. (1988)
201 Cal.App.3d 662, 676-677 (Maheu).)
In Dora, the plaintiff had been well-known in the Malibu surfing community some
two decades earlier. (Dora, supra, 15 Cal.App.4th at p. 540.) Since that time, he had led
a relatively private life and took offense to the defendants’ use of photographs of him
surfing, as well as an audiotape of an interview he had given, in a video documentary
about surfing they had produced. (Id. at pp. 540-541.) The plaintiff sued the defendants
for the unauthorized use of his name, voice and likeness in the documentary. (Ibid.)
In affirming summary judgment in favor of the defendants, the court explained:
“Whether [plaintiff] is considered a celebrity or not, whether he is seeking damages for
injury to his feelings or for the commercial value of his name and likeness, we conclude
that the public interest in the subject matter of the program gives rise to a constitutional
protection against liability.” (Dora, supra, 15 Cal.App.4th at p. 542.)
The court also explained the basis for an expansive interpretation of the statutory
exemption: “Civil Code Section 3344, subdivision (d) distinguishes between news and
public affairs. We presume that the Legislature intended that the category of public
affairs would include things that would not necessarily be considered news. Otherwise,
the appearance of one of those terms in the subsection would be superfluous, a reading
we are not entitled to give to the statute. [Citation.] We also presume that the term
‘public affairs’ was intended to mean something less important than news. [Citation.]
Public affairs must be related to real-life occurrences. As has been established in the
cases involving common law privacy and appropriation, the public is interested in and
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constitutionally entitled to know about things, people, and events that affect it. For that
reason, we cannot limit the term ‘public affairs’ to topics that might be covered on public
television or public radio. To do so would be to jeopardize society’s right to know,
because publishers and broadcasters could be sued for use of name and likeness in
documentaries on subjects that do not relate to politics or public policy, and may not even
be important, but are of interest.” (Dora, supra, 15 Cal.App.4th at pp. 545-546.)
As we have already explained at length above, Tabloid concerns a subject of
widespread public interest. The public interest or newsworthiness exemption is properly
applied here to defeat plaintiff’s claims. Plaintiff has not persuaded us there is any sound
reason for not following Dora, Maheu and Stewart.
DISPOSITION
The court’s order of February 24, 2012, granting defendants’ motion is affirmed.
Defendants shall recover their costs on appeal, as well as reasonable attorney fees on
appeal pursuant to section 425.16, subdivision (c)(1).
GRIMES, J.
We concur:
BIGELOW, P. J.
FLIER, J.
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