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drphil

drphil

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Published by eriqgardner

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Published by: eriqgardner on Jan 10, 2011
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08/05/2013

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For THR, ESQ
DIEU v. McGRAW
 
SHIRLEY DIEU, et al., Plaintiffs and Respondents,
 
v.
 
PHIL McGRAW, et al., Defendants and Appellants.
 
No. B223117.
 Court of Appeals of California, Second District, Division Five.Filed January 6, 2011.
Davis Wright Tremaine LPP,
Kelli L. Sager
,
Karen A. Henry
, forDefendants and Appellants.Smith, Chapman & Campbell,
Steven C. Smith
,
Mark T. Kearney
;Julander, Brown & Bollard,
William C. Bollard
, for Plaintiffs andRespondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
 
MOSK, J.
INTRODUCTION
 
Defendants and appellants Phil McGraw (McGraw), CBS TelevisionDistributions (incorrectly sued as "Paramount Pictures") (CBS), Dr.Frank Lawlis, Sarah Nord a/k/a Sarah Rogers, Ashley Bloom, SheldonMcGregor, and Peteski Productions, Inc. (collectively defendants)appeal from the trial court's order denying their special motion to
 
strike (SLAPP motion) pursuant to Code of Civil Procedure section425.16 (anti-SLAPP statute).
1
We hold that although the action mayinvolve protected activity under the anti-SLAPP statute, the orderdenying the motion should be reversed in part because some of plaintiffs' claims are barred by the releases, and therefore plaintiffshave not shown a probability of prevailing on those claims—arequirement for granting a SLAPP motion. We also hold that plaintiffshave demonstrated the necessary probability of prevailing on theother claims.
BACKGROUND
 
A. Factual Background
 "Dr. Phil" is a daytime television program featuring defendant Dr.Phil McGraw, a former practicing clinical psychologist. During theprogram, McGraw talks to the audience and guests about a widevariety of topics related to inter-personal and societal relationships,such as obesity, drug abuse, infidelity, and domestic violence, amongothers. The Dr. Phil show also presents special episodes, including"The Dr. Phil House," (sometimes referred to as the Program) wheresix guests agree to spend up to a week at a separate locationinteracting with McGraw and other houseguests.Plaintiffs each had submitted comments on the website for the Dr.Phil show regarding certain personal issues. Dieu said she did nottrust men and "hate[s] men." Matchett said she had certain angerissues. Thereafter, the producers of the Dr. Phil show contactedplaintiffs expressing interest in having plaintiffs participate in theshow. According to plaintiffs, they were told the Program wouldinvolve living in a house (the Dr. Phil House) with other individualsseeking therapy; McGraw was a world renowned psychologist whowould visit them at the Dr. Phil House to provide therapy to them fortheir issues; and they could leave the Dr. Phil house at any time.Matchett asserts she specifically was told that McGraw was alicensed medical professional.Plaintiffs signed written release agreements before they were allowedto participate in the Program. Thus, on September 25, 2007, andSeptember 28, 2007, plaintiffs each signed a "Dr. Phil ProgramAppearance Release (Field Taping)" (September releases). OnOctober 9, 2007, plaintiffs also each signed a "Dr. Phil ProgramAppearance Release" (October releases). Plaintiffs claim, however,that with respect to the October releases, they were fraudulentlyinduced by defendants into executing those agreements, thatdefendants' representatives hurried plaintiffs in reviewing and signingthem, and that defendants representatives thereafter added pages tothem.
 
All four releases are substantially the same, each about one pagelong, and each is captioned in bold, capitalized font: "
 DR. PHIL
 PROGRAM APPEARANCE RELEASE (FIELD TAPING)" or "
 DR.PHIL
PROGRAM APPEARANCE RELEASE. They provide thatplaintiffs "understand and acknowledge that the [Program] consists of a `talk show' format discussion about topics of public interest andthat, by its nature, the [Program] includes heated discussions,commentary and remarks." The releases each also provide in partthat, "[plaintiffs] will never sue and [plaintiffs] fully release anddischarge, [CBS], Peteski Productions, Inc., [McGraw] and/or theirrespective distributors, assigns, affiliates, licensees, agents, officers,directors, shareholders, employees and attorneys, and each of themfor any loss, claims or injuries of every kind and nature which[plaintiffs] may now have or may hereafter acquire arising out of orin connection with the [Program] including without limitation: (a) anyclaims, demands and causes of action for invasion of privacy orpublicity, defamation, infliction of emotional distress and any othertort in connection therewith; . . . (d) because [Plaintiffs did] not likethe questions, responses or outcome of the [Program]; and (e)because [CBS] did not fully disclose the subject matter of the[Program] or the identity of other guests appearing on the [Program].[Plaintiffs] voluntarily assume the full risk of any loss or injury(including, without limitation, physical or emotional loss or loss of property or income) to [themselves] . . . that may occur as a result of the production, taping and/or broadcast of the [Program] . . . ." Inaddition, the releases each provides that: (1) McGraw does notadminister individual, group or medical therapies, and that plaintiffswould not be receiving therapy of any kind from him, (2) nopromises had been made to plaintiffs other than those expressly setforth in the releases, (3) no promises had been made to plaintiffsabout the final or specific content of the Program, and (4) in signingthe releases, plaintiffs did not rely on any representations orstatements that were not set forth in the releases.Six individuals, including plaintiffs, participated in Program. TheProgram was produced and filmed in late September and earlyOctober 2007, and was broadcast in December 2007.According to plaintiffs, the Dr. Phil House was a cramped,windowless "mock house" on a sound stage in a bad neighborhood.Their cell phones and laptops were taken from them, and they werenot permitted to access them while in the Dr. Phil House. The foodthey were provided included items they had identified inquestionnaires as being their least favorite foods. All six guests,including the male participants, shared one bathroom. Plaintiffs and

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