Hill v. Doc Shop Productions CA2/5

Filed 4/11/22 Hill v. Doc Shop Productions CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE
JAMISON HILL, et al., B305617
Plaintiffs and (Los Angeles County
Respondents, Super. Ct. No.
19STCV27884)
v.
DOC SHOP PRODUCTIONS,
INC., et al.,
Defendants and
Appellants.
APPEAL from an order of the Superior Court of the County
of Los Angeles, Susan Bryant-Deason, Judge. Affirmed.
Mitchell Silberberg & Knupp, Emily F. Evitt, Aaron M.
Wais, and Gabriella A. Nourafchan, for Defendants and
Appellants.
Ervin Cohen & Jessup, Randall S. Leff, Russell M.
Selmont, and Matthew S. Blum for Plaintiffs and Respondents.
I. INTRODUCTION
This action arose from the production and airing of the
Netflix series Afflicted. Seven people depicted in that series sued
defendants1 for defamation, invasion of privacy (false light), and
fraud. Defendants moved to strike the complaint under the anti-
SLAPP statute,2 but the trial court denied the motion.
On appeal, defendants contend plaintiffs failed to make a
prima facie showing sufficient to overcome the consent/release
defenses to the defamation and false light claims. Defendants
also contend plaintiffs failed to demonstrate that their
defamation, false light, and fraud claims had minimal merit. We
affirm.
II. FACTUAL BACKGROUND
A. The Parties
1. Plaintiffs
Four of the plaintiffs featured in Afflicted suffered from
chronic illnesses and the other three provided support and care
for the ill plaintiffs. Jill Edelstein (Edelstein), a licensed
psychotherapist and clinical social worker, suffered from
1 The parties are identified in section II., A., below.
2 Code of Civil Procedure section 425.16 (section 425.16),
“[f]amiliarly known as the anti-SLAPP statute, . . . allows
defendants to seek early dismissal of unmeritorious claims
arising from protected speech and petitioning activities.” (Bonni
v. St. Joseph Health Systems (2021) 11 Cal.5th 995, 1004.)
2
Hashimoto’s thyroiditis, an autoimmune disease, and had been
diagnosed with multiple chemical sensitivity. Janine Feczko
(Feczko) was Edelstein’s partner and later her wife.
Pilar Olave (Olave) suffered from common variable
immunodeficiency disorder, a life-threatening disease, and
myalgic encephalomyelitis, also known as chronic fatigue
syndrome.
Bekah Dinnerstein (Bekah)3 suffered from acute mold
sensitivity, brought on by a bout with Lyme disease. She also
suffered from common variable immunodeficiency disorder and
several other conditions. Nick Dinnerstein (Nick), Bekah’s
brother, acted as her caretaker during the filming of Afflicted.
Jesse Bercowetz (Bercowetz), Bekah’s boyfriend, was her
caretaker for nearly two years prior to filming.
Jamison Hill (Hill) suffered from myalgic
encephalomyelitis.
2. Defendants
Defendants were three of the individuals and two of the
companies involved in the creation and production of Afflicted.
Daniel Partland (Partland) was the president of Doc Shop
Productions, Inc. (Doc Shop), a production company. Partland
created and was the executive producer of Afflicted.
Peter LoGreco (LoGreco) was an executive producer of and
the showrunner for Afflicted.
Stephanie Lincoln (Lincoln) was one of the field producers
for Afflicted.
3 Because plaintiffs Bekah and Nick Dinnerstein share the
same last name, we refer to them by their first names.
3
Netflix, Inc. (Netflix) hired Doc Shop to produce Afflicted
and distributed Afflicted through its subscription streaming video
service. According to plaintiffs, Afflicted was a joint production
between Netflix and Doc Shop.
B. Origins of the Afflicted Series
Partland developed “the idea for Afflicted” based on his
experience with his wife’s chronic illness. He created the
production company Vivify Pictures, Inc. (Vivify), a wholly owned
subsidiary of Doc Shop, for purposes of making Afflicted. In
April 2017, he hired LoGreco as the showrunner to oversee the
day-to-day operations of the show.
C. The Releases
In preparation for the start of filming, LoGreco was
responsible for obtaining “a personal release from each of the
subjects, as well as all of their friends and family members who
appeared in the show.” The agreements LoGreco required each
plaintiff to sign were entitled: “Personal Release” and began
with the following caveat at the top of the document, set off in a
box, in bolded, all-capital letters, and in larger type face than the
text: “THIS IS A LEGAL DOCUMENT AFFECTING YOUR
RIGHTS AND RESPONSIBILITIES. DO NOT SIGN UNTIL
YOU HAVE COMPLETELY READ THE FOLLOWING: . . . .”
The first paragraph of the release recited the consideration
plaintiffs would receive for their agreement to participate in the
production of Afflicted, i.e., the potential that the producer,
4
Vivify, would “includ[e plaintiffs] in the television program
currently entitled ‘[Afflicted]’ . . . .”
The release then provided that, in exchange, plaintiffs
would “grant to [Vivify] . . . the irrevocable right (but not the
obligation) to film, tape and/or photograph, record . . . , exhibit,
edit, modify, . . . [and] use . . . [plaintiffs’] name[s], voice[s],
likeness[es], conversations . . . (collectively ‘[r]ecordings’) in any
manner, in all media . . . . [Plaintiffs] agree that [Vivify] is the
sole owner of all the results and proceeds of the [r]ecordings.
[Vivify] shall also have the unrestricted right to edit the content
and text of [Afflicted] and the [r]ecordings in any manner or form
. . . .” (Italics added.)
Plaintiffs also expressly acknowledged that Afflicted “may
include, among other things, documentary-style or ‘behind the
scenes,’ dramatic, humorous, embarrassing, humiliating, and
satirical elements” and that they “may reveal information about
[themselves] of a personal, private, intimate, surprising,
disparaging, embarrassing, or unfavorable nature, which may be
factual and/or fictional.” (Italics added.)
Plaintiffs further acknowledged that their “appearance,
depiction, and/or portrayal in connection with [Afflicted], and
[their] actions and/or the actions of others, may be disparaging,
defamatory, embarrassing, or of an otherwise unfavorable nature
to [plaintiffs] and may expose [them] to public ridicule,
humiliation, or condemnation, and that [Afflicted] may have a
variety of natural or manufactured elements.” (Italics added.)
After also confirming that they had “voluntarily agreed to
participate in [Afflicted] of [their] own free will with full and
complete understanding of the risks,” plaintiffs agreed to release
and hold harmless a broad category of parties from “any and all
5
claims, judgments, interest, demands, losses, liabilities, causes of
action, or costs of any kind (including reasonable attorney’s fees
and court costs) (collectively, [c]laims) that [they] may have
arising out of or in any way resulting from [their] participation in
[Afflicted], and the use or reuse of the [r]ecordings, and [they]
agree[d] not to make any claim against the [r]eleased [p]arties as
a result of [their] participation in [Afflicted] and/or in connection
with any use or reuse of the [r]ecordings (including without
limitation, claims based upon defamation, invasion of privacy,
emotional distress, false light, and/or publicity) . . . .” (Italics
added.)
III. PROCEDURAL BACKGROUND
On August 7, 2019, plaintiffs filed their complaint against
defendants, asserting five causes of action4 for defamation, false
light, unjust enrichment, injunctive relief, and fraud. In
summary, plaintiffs contended that they “were duped by
[d]efendants into participating in a salacious reality television
program that questioned the existence of chronic illnesses and
portrayed [p]laintiffs as lazy, crazy, hypochondriacs and/or
malingerers who were deserving of scorn and who in fact have
received scorn and abuse because of [d]efendants’ cruel and
duplicitous actions.”
On October 28, 2019, defendants filed their answer to the
complaint, in which they asserted, among others, affirmative
defenses of consent and release, based on plaintiffs’ execution of
4 As defendants point out, plaintiffs’ claims for an injunction
and unjust enrichment are not independent causes of action, but
rather requests for equitable remedies.
6
the releases. On that same date, defendants also filed a motion
to strike pursuant to section 425.16.
Plaintiffs opposed the motion, arguing that their claims
were not based on an issue of public interest and that there was a
likelihood that they would prevail on each of their claims.
Regarding the consent and release defenses, plaintiffs argued
that there was minimal merit to their contention that the
releases were “procured . . . [by] fraud and undue influence” and
that, as a result, were “void.” In support of their arguments,
plaintiffs each submitted a declaration describing their
experiences with defendants from first contact through the
filming and airing of Afflicted, including their respective
descriptions of the circumstances under which the releases were
executed.
On March 2, 2020, the trial court held a hearing on the
motion to strike and on March 27, 2020, the court issued a
written ruling denying the motion. On the question of whether
the acts at issue in plaintiffs’ claims were in connection with an
issue of public interest, the court ruled that they were. On the
issue of whether plaintiffs could demonstrate a probability of
prevailing on the merits of their claims, the court considered,
among other things, whether the releases barred plaintiffs’
claims. The court concluded that it was “reasonable that a jury
could find that the [r]eleases were obtained through a fraudulent
misrepresentation about the purpose of [Afflicted].” [Citations.]
Because it is for the jury to decide if the [r]eleases were validly
obtained, the existence of the [r]eleases is not a categorical bar to
[p]laintiff[s’] claims.” The court also concluded that plaintiffs had
presented a sufficient prima facie showing on each of their claims
and therefore denied the motion.
7
Defendants filed a timely notice of appeal from the order
denying their motion.
IV. DISCUSSION
A. Anti-SLAPP Procedure
“A SLAPP suit—a strategic lawsuit against public
participation—seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the
government for redress of grievances. [Citation.] The
Legislature enacted . . . section 425.16—known as the anti-
SLAPP statute—to provide a procedural remedy to dispose of
lawsuits that are brought to chill the valid exercise of
constitutional rights.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055–1056; § 425.16, subd. (b)(1).) “Resolution of an anti-SLAPP
motion involves two steps. First, the defendant must establish
that the challenged claim arises from activity protected by section
425.16. [Citation.] If the defendant makes the required showing,
the burden shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384 (Baral).)
At the first step, “[t]he moving defendant’s burden is to
demonstrate that the act or acts of which the plaintiff complains
were taken ‘in furtherance of the [defendant]’s right of petition or
free speech under the United States or California Constitution in
connection with a public issue,’ as defined in the statute.
(§ 425.16, subd. (b)(1).)” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 67.)
8
“To satisfy the second prong, ‘a plaintiff responding to an
anti-SLAPP motion must “‘state[] and substantiate[] a legally
sufficient claim.’” [Citation.] 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 submitted by the
plaintiff is credited.”’ (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821 . . . .) ‘We consider “the pleadings, and
supporting and opposing affidavits . . . upon which the liability or
defense is based.” (§ 425.16, subd. (b)(2).) However, we neither
“weigh credibility [nor] compare the weight of the evidence.
Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitted by the plaintiff as a
matter of law.”’ (Soukup v. Law Offices of Herbert Hafif [(2006)]
39 Cal.4th [260,] 269, fn. 3 [(Soukup)].)” (Oasis West Realty, LLC
v. Goldman (2011) 51 Cal.4th 811, 820.) “We have described this
second step as a ‘summary-judgment-like procedure.’ [Citation.]
. . . ‘[C]laims with the requisite minimal merit may proceed.’
(Navellier v. Sletten (2002) 29 Cal.4th 82, 94 . . . ).)” (Baral,
supra, 1 Cal.5th at pp. 384–385, fn. omitted.)
We review an order granting or denying a motion to strike
under section 425.16 de novo. (Soukup, supra, 39 Cal.4th at
p. 269, fn. 3.)
B. First Prong: An Issue of Public Interest
The trial court concluded that defendants satisfied their
burden under the first prong of the anti-SLAPP statute by
showing that plaintiffs’ claims arose from defendants’ exercise of
9
the right of free speech in connection with an issue of public
interest. In their respondents’ brief, plaintiffs do not dispute that
their claims arise from defendants’ conduct in furtherance of
their rights of free speech. But they argue that the court “erred
in giving [defendants] the benefit of the doubt that [Afflicted] is
indeed about what they claim, even when the evidence indicates
otherwise.” They therefore urge us to conclude “that
[defendants’] activities do not concern [an issue] of public interest
as was meant to be protected by [section 425.16].”
Plaintiffs’ own allegations, however, concede that the
subject matter to be addressed in Afflicted had the potential to
raise public awareness of and funding for the treatment of
chronic illnesses. For example, plaintiffs alleged that Jamison,
Olave, Bekah, and Edelstein believed their participation in
Afflicted and its airing on a platform like Netflix,5 could “foster a
greater understanding of chronic illnesses [in] the general public,
thereby sowing more compassion for its sufferers, and it was
hoped, greater funding for research into the causes and potential
cures for the illnesses . . . .”
Although plaintiffs disagree that the final version of the
series effectively realized the potential to raise awareness and
educate the public about chronic illnesses, they do not dispute
that the topic addressed by the series—chronic illness—was a
matter of public interest worthy of serious consideration.
Plaintiffs’ claims thus arose from acts in furtherance of the right
of free speech in connection with an issue of public interest,
regardless of whether the issue was allegedly misrepresented to
the public. (Rivera v. First DataBank, Inc. (2010) 187
5 Plaintiffs alleged that Netflix had over 100 million
subscribers.
10
Cal.App.4th 709, 716.) The trial court therefore did not err in
concluding that defendants had satisfied their burden on the first
prong.
C. Second Prong: Probability of Success
1. Consent/Release Defenses
Once defendants satisfied their burden on the first prong,
the burden shifted to plaintiffs to make a prima facie showing
that each of their claims had minimal merit. That burden
included the requisite showing on the consent/release defenses,
i.e., their claims were not barred under the common law doctrine
of consent6 or by the broad language of the liability releases
contained in each of the agreements they signed.7 (See Weeden v.
6 “One of the oldest and most widely recognized defenses to
the publication of defamatory matter is the doctrine of consent,
which has been classified as a form of absolute privilege.” (Royer
v. Steinberg (1979) 90 Cal.App.3d 490, 498.) “‘The privilege
conferred by the consent of the person about whom the
defamatory matter is published is absolute. The protection given
by it is complete, and is not affected by the ill will or personal
hostility of the publisher or by any improper purpose for which he
may make the publication . . . .’ [Citation.] By its very definition,
an absolute privilege cannot be overcome by a showing of actual
malice; malice is simply not the proper subject of inquiry in such
a case. [Citations.]” (Id. at p. 499.)
7 “A release is an instrument by which the signing party
(releasor) relinquishes claims or potential claims against one or
more persons (releasees) who might otherwise be subject to
liability to him. The existence of a valid release is a complete
11
Hoffman (2021) 70 Cal.App.5th 269, 288 [“At this [second-prong]
stage, a plaintiff must show that any asserted defenses are
inapplicable as a matter of law or make a prima facie showing of
facts that, if accepted, would negate such defenses. [Citation.]”].)
To satisfy their second-prong burden on the consent/release
defenses, plaintiffs maintained that the releases were void8
because their evidence showed they were procured by “fraud and
undue influence.” The trial court agreed, concluding that
plaintiffs’ evidence was sufficient to allow a jury to conclude that
the releases were “obtained” through “a fraudulent
misrepresentation” about the purpose of Afflicted. On appeal,
plaintiffs reiterate that their evidence shows the releases were
“void” and had “no force or effect,” citing Vai v. Bank of America
National Trust & Savings Assn. (1961) 56 Cal.2d 329, 344 and
Jimenez v. 24 Hour Fitness USA (2015) 237 Cal.App.4th 546,
563.)
a. Background
On August 20, 2017, Edelstein was provided a copy of a
release which she signed “without further consideration.” But
she only agreed to participate in the series and “risk the invasion
defense to a tort action against the releasee.” (Rodriguez v. Oto
(2013) 212 Cal.App.4th 1020, 1026, italics added.)
8 It was unclear whether plaintiffs were asserting that the
releases were void due to fraud in the execution or voidable due
to fraud in the inducement. (See Rosenthal v. Great Western Fin.
Securities Corp. (1996) 14 Cal.4th 394, 415.)
12
to her privacy” so she could bring awareness to mold illness and
educate the public.
On August 31, 2017, shortly after the start of filming,
Feczko was provided a release to sign. She understood from
experience “that there were privacy rights and a release that
needed to be provided . . . for the production company to permit
filming.” She signed the release based on “the understanding
and [the] description of the show Afflicted, as ‘a documentary
about chronic illness.’” She “relied upon these statements to sign
the . . . release form provided to [her], but also to even consider
and further participate in casting and production.”
According to Olave, “[a]t the time of filming, on or about
June 8, 2017, [she] was handed the . . . release . . . . [¶]
Instantly, [she] was pushed to sign the . . . release because,
without it, [she] would be cut from [the] production. [¶] In fact,
[she] was advised by LoGreco that . . . Lincoln ‘was an attorney
[who] . . . had reviewed the . . . release, and said it was fine for
[her] to sign.’”
In the beginning of the filming process, in June 2017,
LoGreco and Lincoln visited the site and delivered to Bekah,
Bercowetz, and Nick “a litany of papers, which included the . . .
release and HIPAA forms . . . . [¶] At the time, [Bekah] was far
too sick to understand, or even read the papers LoGreco
requested that [they] sign, which [she] advised LoGreco in
person. (Emphasis omitted.) [¶] From the moment [Berkowetz],
Nick, and [Bekah] were provided [the] papers, [they] were
pressured to sign them immediately and without anyone else
reviewing them. [¶] [P]roducer Julio Pabon [(Pabon)] . . . , one of
the first producers to work with [them] on [the] filming, had
stated many times that ‘we [i.e., Doc Shop] have a limited budget,
13
we rented all this equipment, and we can’t do anything until you
sign these documents,’ which included the . . . release. [¶]
LoGreco further pushed, stating to [Bercowetz], Nick, and
[Bekah] that ‘this is extremely basic stuff. We don’t care about it
but the back office needs it. We really need this to film.
Otherwise, you won’t be in the production.’ [¶] In other
conversations [on] or around June 27, 2017, with . . . Lincoln,
[she] joined in LoGreco’s push to get the papers signed, stating
that, ‘these are just forms that we need to put you on camera, and
nothing more.’”
Bekah, Bercowetz, and Nick held the documents for a day
while attempting to find a lawyer to review them. When they
could not locate a lawyer, Bekah had a friend review them, but
the friend “provided no useful feedback.” While Bekah,
Bercowetz, and Nick had the papers in their possession, Pabon
told them that Lincoln was a lawyer and that she had “reviewed
the . . . release and confirm[ed] that [it was] ok for [Bekah] to
sign.”
On June 27, 2017, Bekah also spoke to LoGreco who
assured her that Afflicted “was going to be ‘a serious
documentary about chronic illness’ for which [her] story would be
used as an illustrative example . . . .” (Emphasis omitted.) Based
on the “pressure by Doc Shop producers, LoGreco and Lincoln,” as
well as LoGreco’s assurances that the series would be a serious
documentary and Lincoln’s confirmation that it was “‘OK’” for her
to sign the release, Bekah “reluctantly signed the documents
without having counsel review them [based on] the insinuated
threat that [if they did not sign the] papers without further delay,
[she, Bercowetz, and Nick] would be cut from the show (which
meant [her] conditions and illnesses would not get the necessary
14
exposure to beget public awareness and potentially additional
research funding).”
Several days prior to flying to California to join Bekah and
Bercowetz, Nick received a nondisclosure agreement by e-mail.
But, unlike that agreement, Lincoln did not provide Nick with
the release in advance; instead she waited until the first day of
filming to provide releases to him, Bekah, and Bercowetz
collectively, “and [then] pushed [them] to sign immediately.”
Nick knew Lincoln was an attorney, so he relied on her when she
told him that the forms containing the releases “simply ‘[gave]
Netflix permission to use [their] images on TV,’ advis[ed] [him]
‘there was no risk involved in signing it’ and profess[ed] it to be
‘standard paperwork.’” LoGreco also “pushed similarly,
explaining that [they could] trust [defendants] because Partland’s
wife was chronically ill, which was told to [him] to encourage [his]
signing of the release form without reading it. LoGreco further
explained that Afflicted was going to be a serious ‘medical
documentary’ . . . .” When Nick, Bekah, and Bercowetz hesitated
to sign the releases, LoGreco became irritated and advised “‘it’s
not a contract, it’s an agreement.’”
At the start of filming, LoGreco visited the site and handed
Bercowetz “a litany of papers,” including the release. LoGreco
“pushed, stating that ‘this is extremely basic stuff. We don’t care
about it but the back office needs it. We really need this to film.
Otherwise, you won’t be in the production.’”
Bercowetz had the documents for a day and attempted
unsuccessfully during that time to locate a lawyer. Bekah had a
nonlawyer friend review the release and explain the substance of
it, but the information the friend provided was “generally
15
inapplicable.” Bercowetz stated that he did not have access to
and could not afford a lawyer.
The day after Bercowetz received the release, Pabon told
him that Lincoln was a lawyer, that she had reviewed the
release, and that she “agree[d] it [was] ok for [him] to sign.”
Bercowetz “reluctantly signed the document[].”
On July 11, 2017, Pabon e-mailed Hill and mentioned that
a release would be provided which needed to be signed. But Hill
did not receive the release until after the first day of the filming.
According to Hill, at a “mid-break from filming, [he] needed to
rest in a dark room in order to recuperate. It was [at] that time,
[when he] was exhausted and . . . in [a] near-blacked-out room
[that] Lincoln brought in the paperwork for [him] to sign. [H]e
was in absolutely no condition to read, review, or even
understand the . . . release at that moment . . . . Lincoln knew
that . . . [because she] handed [him] the . . . release . . . in a room
in which [he] could not even physically read the document[].”
Lincoln told Hill at the time that she was a lawyer and that the
papers were “simple formalities needing no actual inspection or
scrutiny. [He] took Lincoln at her word and signed the papers . . .
without being physically able to read them.” In addition, Lincoln
told Hill that if he did not sign, he would be “‘scrapped’ from the
show and all of the investment [he] and they had put in thus far
would be for nothing.” And, Lincoln had previously promised Hill
medical treatment by “‘a real ME doctor’” in return for his
participation, and he was therefore also concerned that, if he did
not sign the release, Lincoln would discontinue her search for
such care.
16
b. Section 1668
Although plaintiffs argued in the trial court that the
releases were void due to fraud, they did not argue—below or in
their respondent’s brief—that the releases of their tort claims
were void as against public policy under Civil Code, section 1668
(section 1668).9 We therefore asked the parties to file
supplemental briefs on that issue.10
In their brief, defendants concede that section 1668
prohibits the release of fraud claims, but maintain that the
offending portion of the release concerning fraud can be severed
and the balance of the release enforced against the defamation
and false light claims. Citing Royer, supra, 90 Cal.App.3d 490,
Restatement (Second) of Torts, section 583, and Kelly v. William
Morrow & Co. (1986) 186 Cal.App.3d 1625 (Kelly), defendants
argue that the releases here unambiguously set forth plaintiffs’
9 Section 1668 provides: “All contracts which have for their
object, directly or indirectly, to exempt anyone from responsibility
for his own fraud, or willful injury to the person or property of
another, or violation of law, whether willful or negligent, are
against the policy of the law.”
10 We also asked the parties to brief whether the section 1668
issue was forfeited, by plaintiffs’ failure to raise it below, or
waived, by their failure to raise it in their respondent’s brief. In
their supplemental briefs, the parties disagree on whether
plaintiffs forfeited or waived the issue. Because the application
of section 1668 to plaintiffs’ tort claims involves a question of law
on an important matter of public policy that has now been fully
briefed on the merits, we exercise our discretion to excuse any
forfeiture or waiver and review the issue. (See In re S.B. (2004)
32 Cal.4th 1287, 1293–1294.)
17
prelitigation consent to the conduct underlying the defamation
and false light claims and therefore constitute complete defenses
to each of those claims.
In their supplemental brief, plaintiffs do not directly
address section 1668, as applied to the defamation or false light
claims, nor do they discuss the common law doctrine of consent as
it relates to those claims. Instead, they assert that, because the
releases encompass intentional tort claims, such as fraud, that
are prohibited by the statute, the releases are void in their
entirety as against public policy.
We agree with the parties that, under section 1668, the
release defense does not apply to plaintiffs’ fraud claims as a
matter of law. As to the other claims, we will assume, without
deciding, that section 1668 does not apply to defendants’
contention that the releases constituted a consent to plaintiffs’
defamation and false light claims. (See Kelly, supra, 186
Cal.App.3d at p. 1634 [“‘“The privilege conferred by the consent of
the person about whom the defamatory matter is published is
absolute. The protection given by it is complete, and is not
affected by the ill will or personal hostility of the publisher or by
any improper purpose for which he may make the publication
. . .”’”]; but see McQuirk v. Donnelley (9th Cir. 1999) 189 F.3d 793,
796–797 [holding that section 1668 prohibits the release of
defamation claims as intentional torts].)
c. Consent/Release Defense
We therefore next consider whether plaintiffs met their
burden to demonstrate that there was minimal merit to their
18
contention that the releases did not bar their defamation and
false light claims.
According to Kelly, supra, 186 Cal.App.3d 1625, consent, in
the context of defamation, is a form of waiver which “‘requires a
voluntary act, knowingly done, with sufficient awareness of the
relevant circumstances and likely consequences. [Citation.]
There must be actual or constructive knowledge of the existence
of the right to which the person is entitled. [Citation.] The
burden is on the party claiming a waiver to prove it by evidence
that does not leave the matter doubtful or uncertain and the
burden must be satisfied by clear and convincing evidence that
does not leave the matter to speculation. . . .’ [T]he extent of the
privileges conferred by the waiver must be determined in the
light of the circumstances in which it was executed. . . . Whether
[the plaintiff] sold his birthright to privacy for a mess of pottage
when he signed the waiver can only be determined by a trier of
fact.” (Id. at p. 1635.)
Plaintiffs maintain that they did not knowingly and
voluntarily waive their rights not to be defamed or portrayed in a
false light. Edlestein and Feczko explained that they signed the
releases under the false assumption that the series would be a
serious documentary about chronic illness that would raise
awareness of conditions like Edelstein’s and serve to educate the
public. The other plaintiffs claimed that they had been pressured
into signing the releases, told they would be cut from the series if
they did not sign, and assured by Lincoln and others that the
releases were mere formalities or routine paperwork that needed
to be signed. Bekah and Hill also asserted that they were too ill
or tired when they were presented with the releases to
understand the significance of the documents they were signing.
19
In light of the circumstances under which each plaintiff
signed the release and defendants’ heightened burden to
demonstrate waiver by clear and convincing evidence, we
conclude that plaintiffs met their second-prong burden to
demonstrate that there was minimal merit to their contention
that they did not knowingly and voluntarily waive their
defamation and false light claims. (De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 856 [“To satisfy this prong-two
showing, the plaintiff must present credible evidence that
satisfies the standard of proof required by the substantive law of
the cause of action the anti-SLAPP motion challenges. Generally,
a plaintiff's claims need only have ‘“minimal merit”’ to survive an
anti-SLAPP motion”] (De Havilland).) Having concluded that the
releases did not bar plaintiffs’ claims, at least on the limited
factual record currently presented, and accounting for the
governing minimal merit standard under the anti-SLAPP
procedure, we next turn to whether plaintiffs submitted sufficient
evidence to demonstrate that each claim had minimal merit.
20
2. Defamation/False Light Claims11
“The tort of defamation ‘involves (a) a publication that is (b)
false, (c) defamatory, and (d) unprivileged, and that (e) has a
natural tendency to injure or that causes special damage.’
[Citations.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) “Libel,
a form of defamation [citation], ‘is a false and unprivileged
publication by writing, printing, picture, effigy, or other fixed
representation to the eye, which exposes any person to hatred,
contempt, ridicule, or obloquy, or which causes him to be shunned
or avoided, or which has a tendency to injure him in his
occupation.’ (Civ. Code, § 45.) To determine whether a
representation is libelous, ‘we look to what is explicitly stated as
well as what insinuation and implication can be reasonably
drawn from the communication. [Citation.] . . . In this
connection the expression used as well as the “whole scope and
apparent object of the writer” must be considered. [Citation.]’
[Citations.] [¶] . . . ‘Whether published material is reasonably
susceptible of an interpretation which implies a provably false
assertion of fact—the dispositive question in a defamation
action—is a question of law for the court. [Citations.] This
question must be resolved by considering whether the reasonable
or “average” reader would so interpret the material. [Citations.]
The “average reader” is a reasonable member of the audience to
11 Because plaintiffs’ defamation and false light claims are
based on the same set of operative facts, we consider them
together because “[w]hen . . . an invasion of privacy claim rests on
the same allegations as a claim for defamation, the former cannot
be maintained as a separate claim if the latter fails as a matter of
law. [Citation.]” (Alszeh v. Home Box Office (1998) 67
Cal.App.4th 1456, 1464 (Alszeh).)
21
which the material was originally addressed. [Citations.]’
[Citation.]” (Alszeh, supra, 67 Cal.App.4th at p. 1460–1461.)
“‘“False light is a species of invasion of privacy, based on
publicity that places a plaintiff before the public in a false light
that would be highly offensive to a reasonable person, and where
the defendant knew or acted in reckless disregard as to the
falsity of the publicized matter and the false light in which the
plaintiff would be placed.”’ [Citation.] (De Havilland, supra, 21
Cal.App.5th at p. 866.) To defeat defendants’ anti-SLAPP motion
on their false light claims, plaintiffs must demonstrate a
reasonable probability that they can prove defendants’
statements in the broadcast version of Afflicted were (1)
assertions of fact, (2) actually false or create a false impression
about them, and (3) highly offensive to a reasonable person or
defamatory. (De Havilland, supra, 21 Cal.App.5th at pp. 865–
866.) To the extent plaintiffs are limited public figures, they
must also show that defendants acted with actual malice, i.e.,
they either knew the statements were false or acted in reckless
disregard of the falsity. (Ibid.)
a. Implied Defamatory Facts
Each of the four plaintiffs who claimed to be suffering from
a chronic illness testified that they had been diagnosed as
suffering from, and were being treated for, recognized medical
conditions and that, as confirmation of that fact, they provided
defendants with access to their medical records and treating
physicians. Moreover, defendants do not dispute that each of
those plaintiffs had been diagnosed as suffering from a
recognized medical condition.
22
Nevertheless, the version of Afflicted that defendants
decided to air—i.e., publish—included numerous statements from
health care professionals and others that were reasonably
susceptible to an interpretation that defendants were portraying
plaintiffs’ illnesses, and accompanying physical symptoms, as not
the result of any underlying, diagnosable medical condition, but
rather as either the product of plaintiffs’ imaginations or some
mental disorder. Specifically, the excerpts from show scripts
submitted in opposition to the motion to strike confirm that
defendants published the following:
At the outset of Afflicted, Bekah states: “It’s like you have
a gun in your mouth, and you’re screaming, and somebody’s
saying, ‘No, you don’t have a gun in your mouth. Stop
screaming.’” An unidentified man then says, “Is it
psychosomatic, is it psychological?” A doctor then states, “There
is no single biomarker, no single test,” and another doctor says,
“It’s got to be in your head, because I can’t figure it out.” A
participant in the series explains, “Many don’t believe. Nobody
listens.”
In the third episode of Afflicted, a mood disorder specialist,
remarks, “I have had a few patients who became so identified
with their illness that they really weren’t willing to be cured.”
Later, a psychiatrist opines about Olave’s illness, chemical
sensitivity, concluding, “[Y]ou have to entertain the hypothesis
that this is not a physical problem, but this is an emotional one.”
The psychiatrist also discusses Hill’s condition, explaining,
“When you see that there’s a link between a particular event
that’s upsetting and the onset of a problem, you do wonder
whether it’s a direct translation of an emotional conflict into a
physical alteration in the body.” As to Bekah’s Lyme disease, the
23
doctor suggests, “Statistically, it’s more likely that the cause of
the problem is a common psychiatric problem more than it is an
unknown or uncatalogued physical illness. You can be deluded
that you’re sick, meaning you can believe you’re sick when in fact
you’re not sick. You can have a false belief about anything.”
And, he generally concludes, “I mean, literally, it’s originating in
their head, but there are messages being sent between your brain
and your gut. If you perceive pain but you have no obvious
physical source for pain, you still experience pain.”
Finally, Afflicted features other doctors who provide similar
views of the participants’ illnesses. A doctor states, “Patients
who have emotional issues, that can translate physically, and we
find that to be true especially for chronic illnesses.” As to Lyme
disease, yet another doctor explains, “Lyme imitates many
psychiatric symptoms,” followed by yet another doctor who
agrees, “They may have a psychosomatic origin,” and another
who adds, “[t]he diagnosis is elusive.”
The undisputed facts concerning plaintiffs’ diagnosed
medical conditions, when contrasted with the show script
excerpts and aired version of Afflicted, were sufficient to
constitute a threshold showing that defendants could be
reasonably understood as falsely implying that (1) the four sick
plaintiffs were imagining their illnesses due to some
psychological or mental condition and (2) their caregivers were
gullible pawns or enablers who had been duped into providing
care for persons who did not need it. “[I]f a defamation claim is
based on allegations of implied defamatory facts, the court must
make a threshold preliminary determination whether the
published statements could be understood as implying the
alleged defamatory content. If the statements are susceptible of
24
both an innocent and libelous meaning, it is for the jury to decide
how they were in fact understood. (Forsher v. Bugliosi (1980) 26
Cal.3d 792, 803 . . . .) This threshold determination is based on
the common law principle that if a statement, innocent on its
face, cannot be understood as implying defamatory facts, then it
may not be the basis of a defamation cause of action. (Ibid.)”
(Weller v. ABC (1991) 232 Cal.App.3d 991, 1001, fn. 8.)
b. Unprivileged
Other than the consent issue discussed above, defendants
do not contend that the challenged statements from Afflicted are
subject to any other recognized privilege.
c. Actual Malice
For purposes of our analysis of plaintiffs’ second-prong
showing on the defamation and false light claims, we will assume
without deciding that they are limited public figures and were
therefore required to submit prima facie evidence of actual
malice. “If the person defamed is a public figure [or limited
public figure], he must show, by clear and convincing evidence,
that the defamatory statement was made with actual malice—
that is, with knowledge that it was false or with reckless
disregard of whether it was false.” (Mitchell v. Twin Galaxies,
LLC (2021) 70 Cal.App.5th 207, 218.) “In evaluating whether a
plaintiff has made a prima facie showing of actual malice, ‘we
bear in mind the higher clear and convincing standard of proof.’”
(Ibid.)
25
Plaintiffs submitted evidence that defendants knew their
statements in Afflicted concerning the psychological or mental
origins of plaintiffs’ illnesses were false or misleading, including
testimony showing that defendants were given access to
plaintiffs’ medical records and treating physicians who had
diagnosed the sick plaintiffs with known illnesses. Such evidence
supported a reasonable inference that defendants therefore knew
or acted with reckless disregard as to the falsity of the
suggestions in Afflicted that plaintiffs’ illnesses were not real, but
imaginary, and that their caregivers were duped.
d. Special Damages
Defendants argue that because the challenged statements
from Afflicted were not defamatory per se, plaintiffs were
required to show proof of special damages resulting from the
airing of Afflicted. In support of this contention, they cite Gomes
v. Fried (1982) 136 Cal.App.3d 924, which distinguished between
libel per se and “‘[d]efamatory language not libelous on its face[,
which] is not actionable unless the plaintiff alleges and proves
that he has suffered special damage as a proximate result
thereof.’” (Id. at p. 939.)
As to damages, Edelstein testified that, as a result of the
airing of Afflicted: (1) she had been required “to fend off online
attacks on [her] character, on [her] business, and to [her]
livelihood;” (2) she had been “‘ghosted’” by her doctors and
medical staff who refused to take calls or return messages about
medical appointments; (3) her psychotherapy practice had
suffered, as prospective clients would not seek treatment from a
“crazy[] hypochondriac;” and (4) she had been “constantly
26
attacked and bullied” online by persons who believed she had
“hurt [Feczko],” to the point where she was compelled to retain
the services of an attorney to obtain a protective order.
Following the airing of Afflicted, Feczko, an experienced
film editor, was “personally and professionally damag[ed]” by:
(1) the “stress and strain of dealing with the public[] and [the]
media” to correct the image of her portrayed in Afflicted; and
(2) the loss of business, including the type of “higher-paying jobs”
that she had been obtaining prior to the broadcast of the show.
As soon as Afflicted aired, Olave began receiving “harassing
messages” and “online bullying,” including demands that she
commit suicide and threats to her life. When the series
subsequently aired in South America, she received “messages
from people back home, threatening to kill [her] and other
disparaging commentary.”
Hill claimed that following the airing of Afflicted, he (1) had
spent countless hours defending himself against skeptics; (2)
could no longer get media publications to publish his work which,
as a writer, he had successfully made a living doing prior to
Afflicted; and (3) had experienced extreme stress and anxiety
which had compromised his health.
Bekah claimed Afflicted “impacted every aspect of [her]
life,” including damage to: (1) her “credibility in the art
community” which had been “irretrievably tarnished;” (2) her
health and her “ability to engage with the world,” each of which
had been adversely affected due to harassment and bullying “in
public and on the internet;” and (3) her ability to obtain
employment, attract customers, and maintain adequate social
and support networks.
27
Nick claimed that, due to Afflicted, he: (1) lost income as a
result of time spent filming the series while also caring for
Bekah; (2) was disparaged as either a “facilitator of a crazy
person” or an inept caretaker; (3) experienced difficulty caring for
Bekah and suffered stress in “[t]he aftermath of the release” of
the series; (4) saw a diminution of his “online presence,” which
was essential to his ability to obtain work as a freelance musician
and music teacher; and (5) suffered damage to his professional
reputation and personal life.
Bercowetz claimed that Afflicted caused him: (1) to seek
therapy for the trauma caused by being “cast as a crazy cast
member;” (2) to abandon his career path as a chaplin and delay
his training at the Harvard Divinity School, where he had been
attending on a scholarship; (3) to abandon the thesis “central to
his studies” based on “the journey with Bekah;” and (4) to suffer
“untold harm and devastation” in the “art community,” which
was the “way [he] earned [his] living.”
Defendants contend that plaintiffs’ “vague, argumentative,
and conclusory declarations” did not adequately show the specific
economic harm caused by their portrayal in Afflicted. “But the
plaintiff’s second-step burden is a limited one. The plaintiff need
not prove her case to the court [citation]; the bar sits lower, at a
demonstration of ‘minimal merit’ [citation]. At this stage, ‘“[t]he
court does not weigh evidence or resolve conflicting factual
claims.”’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th
871, 891.) Under this standard, plaintiffs’ evidence showing how
their lives and careers were adversely affected by the airing of
Afflicted, when viewed in a light most favorable to them,
demonstrates that their defamation damage claims have minimal
merit.
28
3. Fraud Claims
As to the remaining cause of action asserting that plaintiffs
were fraudulently induced into allowing defendants to film and
portray them in Afflicted, we conclude that each presented
sufficient evidence of a prima facie case to satisfy their second-
prong burden on the elements of their claims.
“‘The elements of fraud, which give rise to the tort action
for deceit, are (a) misrepresentation (false representation,
concealment, or nondisclosure); (b) knowledge of falsity (or
“scienter”); (c) intent to defraud, i.e., to induce reliance;
(d) justifiable reliance; and (e) resulting damage.’ (5 Witkin,
Summary of Cal. Law (9th ed. 1988) Torts, § 676, p. 778; see also
Civ. Code, § 1709; Hunter [v. Up-Right, Inc. (1993)] 6 Cal.4th
1174, 1184; Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092,
1108 . . . [(Molko)].)” (Lazar v. Superior Court (1996) 12 Cal.4th
631, 638.)
“All of these elements must be present if actionable fraud is
found; one element absent is fatal to recovery. There is no
absolute or fixed rule for determining what facts will constitute
fraud; whether or not it is found depends upon the particular
facts of the case under inquiry. Fraud may be proved by direct
evidence or it may be inferred from all of the circumstances in the
case. (Jorgensen v. Jorgensen[ (1948)] 32 Cal.2d 13, 18, 21 . . . .)
‘Actual fraud is always a question of fact.’ (Civ. Code, § 1574.)”
(Pearson v. Norton (1964) 230 Cal.App.2d 1, 7–8.)
29
a. Misrepresentation
(i) Statements About Afflicted
Plaintiffs’ evidence shows that defendants, through their
agents, made similar statements of fact to each plaintiff about
the nature and purpose of the proposed Afflicted series.
In June 2017, Edelstein received an e-mail from Afflicted
casting producer Ashley York, which described the series as a
“documentary” that would “explor[e] chronic illness and
undiagnosed diseases and illnesses,” (emphasis omitted) a
description that was repeatedly used by Doc Shop producers.
Feczko had been “a non-fiction documentary television and
film editor” for 27 years. She and Edelstein were advised that
defendants intended to create “a serious medical documentary
about chronic illness.”
According to Olave, “[f]rom the very first contact, . . .
Lincoln and . . . LoGreco advised [her] that Afflicted would be a
documentary about chronic illness, specifically ‘a documentary
designed to educate the public and bring awareness’ to conditions
from which [she] ha[d] suffered. [¶] [She] was advised that . . .
Partland . . . [had] a wife who had a severe and debilitating
chronic illness.”
Bekah was told that Afflicted would be a serious
documentary about chronic illness and that it would not be a
show “pitting patient against doctor.” She was also told that the
show would not suggest that her illness was “psychosomatic.”
She was instead informed that the show would educate the public
about her condition and that her medical records and doctors
would be used “to showcase the medicine.”
30
According to Nick, he, Bekah, and Bercowetz “experienced”
together all conversations with producers about the series. He
therefore incorporated into his declaration Bekah’s testimony
concerning statements made to her about Afflicted.
Bercowetz was told that Afflicted would be a documentary
about chronic illness, using Bekah and others as illustrative
examples of the illnesses to be covered. Bercowetz was advised
that “[d]efendants’ goal was to give Bekah and [him], and others
similarly situated, ‘a voice’ to elaborate upon the illnesses from
which Bekah suffered and [to] educate the public on [her]
illnesses with respect to diagnosis [and] efficacy of treatment
. . . .”
In the Spring of 2017, Hill was contacted by Parker Deleon
(Deleon), a casting producer for Doc Shop, who advised that
Netflix was “making a series about chronic illness, and that [Hill]
would be showcased as an illustrative example of how severe
[m]yalgic [e]ncephalomyelitis (ME) may present.” Deleon stated
that if Hill “made it on the series [he], along with several other
people, would be filmed living with a chronic illness through ‘a
compassionate lens.’” He also told Hill that the series would give
“[those featured] a voice through which [they] may raise
awareness and educate the public on the character, scope, and
extent of [their] illnesses.” Hill believed public awareness and
education would “beget[] research and funding for discovery of
treatments, which would obviously change [his] life.” When Hill
learned that Deleon had been on “a popular reality TV show,” he
asked if “Afflicted was going to be reality [television], [but
Deleon] responded, ‘No. Afflicted is a documentary about chronic
illness, not a reality [television] show.’”
31
(ii) Falsity
To show the falsity of defendants’ statements about the
nature and purpose of Afflicted, plaintiffs submitted excerpts
from the show scripts (described in detail above) suggesting that
the participants’ illnesses, which were documented in their
medical records, were instead psychological or imaginary.
Plaintiffs’ testimony about the representations made to
them during their recruitment, when read together with the show
script excerpts, support a reasonable inference that defendants’
descriptions of the proposed series differed significantly from the
final version that aired. It therefore constitutes a prima facie
showing that defendants statements about the nature and
purpose of Afflicted were false and misleading.
b. Knowledge of Falsity
“Regarding the element of scienter, evidence of the falsity
of a representation is sufficient to raise a triable issue of fact as
to the element[] of knowledge of the falsity. In Maxson v.
Llewelyn (1898) 122 Cal. 195 . . . , the defendant argued there
was insufficient evidence to show that at the time he made the
representations he did not believe they were true. Our Supreme
Court . . . stated: ‘It would in most cases be extremely difficult,
and in many cases absolutely impossible, to procure direct
evidence of this nature. In all cases it is permissible to prove
fraud by circumstances, and in most cases it is the only evidence
available. In aid of the direct facts proved, legitimate inferences
are permitted to be indulged to establish other facts not directly
32
in evidence.’ (Id., at p. 198.)” (Hart v. Browne (1980) 103
Cal.App.3d 947, 957–958 (Hart).)
Plaintiffs submitted excerpts from Partland’s declaration in
which he admitted that he intended Afflicted to be an
“observational documentary” focusing on the emotional
experiences of the patients, rather than the “granular details of
the science of their illnesses.” He also admitted knowing that
some medical professionals believed that rare chronic illnesses
had “psychological roots.” And, he admitted that he and “his
team” wanted to “explore stories that might have tension,” either
between the patient and his or her support network or the
patient and his or her doctors. In addition, Nick explained that,
after Afflicted aired, he exchanged e-mail messages with Lincoln
in which she confirmed her initial understanding that the series
was to be a serious and empathetic portrayal of the participants’
illnesses and agreed that the final product was “much different”
than what she, Lo Greco, and York had anticipated, claiming that
Partland and Netflix controlled the editorial process and had a
“different idea” about how the participants’ stories would be told.
This evidence supported a reasonable inference that Doc Shop
and Netflix, through their agents Partland and others, were
aware at the time they recruited plaintiffs that the final version
of Afflicted would not air as represented to plaintiffs, i.e., a
serious documentary about chronic illness, grounded in science
and told through a compassionate lens, that would give voice to
the participants and raise awareness of and educate the public
about chronic illness. Plaintiffs therefore satisfied their prima
facie evidentiary burden on the scienter element.
33
c. Intent to Induce Reliance
“The . . . third element[] [of fraud], consisting of . . . intent
to induce reliance, relate[s] to [the defendant’s] state of mind.
Th[is] element[] may be proved by inference.” (Hart, supra, 103
Cal.App.3d at p. 957, italics added.) “[B]ecause the real intent of
the parties and the facts of the transactions are peculiarly within
the knowledge of those sought to be charged with the fraud, proof
indicative of fraud must come by inference from the
circumstances surrounding the transaction, the relationship and
interests of the parties. (Moore v. McDonald[ (1932)] 122
Cal.App. 61, 69 . . . , and cases cited.)” (Fross v. Wotton (1935) 3
Cal.2d 384, 393; see also Tenzer v. Superscope, Inc. (1985) 39
Cal.3d 18, 30 [“fraudulent intent must often be established by
circumstantial evidence”].)
Plaintiffs submitted evidence that defendants’ agents made
false statements while recruiting plaintiffs to participate in
Afflicted and that, as a result, plaintiffs agreed to participate in
Afflicted and provided defendants with access to their medical
records and doctors. This was sufficient evidence from which to
infer that defendants acted with an intent to induce reliance by
plaintiffs.
d. Justifiable Reliance
“Justifiable reliance exists when the misrepresentation or
nondisclosure was an immediate cause of the plaintiff’s conduct
which alters his legal relations, and when without such
misrepresentation or nondisclosure he would not, in all
reasonable probability, have entered into the contract or other
34
transaction.” (Molko, supra, 46 Cal.3d at p. 1108.) “‘Except in
the rare case where the undisputed facts leave no room for a
reasonable difference of opinion, the question of whether a
plaintiff’s reliance is reasonable is a question of fact.’” (Alliance
Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1239.)
Plaintiffs submitted individual testimony showing they
actually relied on defendants’ statements about Afflicted in
determining whether to participate. Edelstein, a medical
professional, testified that, believing Afflicted to be a serious
medical documentary, she agreed to participate and gave
defendants access to her doctors, medical records, treatment, and
medical practice from which she made her living. She also gave
defendants permission to use her “full accreditation as a
psychotherapist and a visual depiction of the sign on [her] office
door.”
Feczko agreed to participate because she had been
convinced Afflicted would be a serious medical documentary
“designed to be [an] objective . . . portrayal of facts . . . .”
Olave based her decision to participate on the fact that
(1) Partland’s wife suffered from chronic illness, causing her to
trust that the series would treat the topic seriously; and (2)
defendants’ statement that her participation would “‘bring hope
to many people.’”
Bekah, Nick, and Bercowetz participated because they
believed the series would bring public awareness to the topic of
chronic illness, would help educate the public about it, and would
generate revenue for medical research into Bekah’s illness.
Hill participated because he believed he would be shown as
an example of someone living with his illness and because he was
convinced that a serious documentary about his illness would not
35
only educate the public, but also generate revenue for research
into new treatments of his disease.
Plaintiffs’ evidence concerning the reasons they agreed to
participate in Afflicted supports an inference that they relied on
defendants’ misrepresentations about the purpose of the show in
deciding to participate in it. And there is nothing about their
agreement to participate in a purported documentary series that
was so unreasonable as to render their reliance unjustifiable.
e. Resulting Damage
As detailed above in the discussion of the evidence
supporting the defamation and false light claims, each plaintiff
submitted testimony describing the adverse impacts that the
airing of Afflicted had on his or her life and/or career from which
reasonable inferences of economic injury could be drawn.
Therefore, under the low-bar “minimal merit” standard governing
our second-prong analysis, plaintiffs satisfied their burden on
fraud damages.
36
IV. DISPOSITION
The order denying the special motion to strike is affirmed.
Plaintiffs are awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J.
We concur:
BAKER, Acting P. J.
MOOR, J.
37