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DIEU v. McGRAW
SHIRLEY DIEU, et al., Plaintiffs and Respondents, v. PHIL McGRAW, et al., Defendants and Appellants.
Court of Appeals of California, Second District, Division Five.
Filed January 6, 2011.
Davis Wright Tremaine LPP, Kelli L. Sager, Karen A. Henry, for Defendants and Appellants. Smith, Chapman & Campbell, Steven C. Smith, Mark T. Kearney; Julander, Brown & Bollard, William C. Bollard, for Plaintiffs and Respondents.
MOSK, J. Defendants and appellants Phil McGraw (McGraw), CBS Television Distributions (incorrectly sued as "Paramount Pictures") (CBS), Dr. Frank Lawlis, Sarah Nord a/k/a Sarah Rogers, Ashley Bloom, Sheldon McGregor, and Peteski Productions, Inc. (collectively defendants) appeal from the trial court's order denying their special motion to
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS INTRODUCTION
strike (SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP statute).1 We hold that although the action may involve protected activity under the anti-SLAPP statute, the order denying the motion should be reversed in part because some of plaintiffs' claims are barred by the releases, and therefore plaintiffs have not shown a probability of prevailing on those claims—a requirement for granting a SLAPP motion. We also hold that plaintiffs have demonstrated the necessary probability of prevailing on the other claims.
A. Factual Background "Dr. Phil" is a daytime television program featuring defendant Dr. Phil McGraw, a former practicing clinical psychologist. During the program, McGraw talks to the audience and guests about a wide variety of topics related to inter-personal and societal relationships, such as obesity, drug abuse, infidelity, and domestic violence, among others. The Dr. Phil show also presents special episodes, including "The Dr. Phil House," (sometimes referred to as the Program) where six guests agree to spend up to a week at a separate location interacting 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 not trust men and "hate[s] men." Matchett said she had certain anger issues. Thereafter, the producers of the Dr. Phil show contacted plaintiffs expressing interest in having plaintiffs participate in the show. According to plaintiffs, they were told the Program would involve living in a house (the Dr. Phil House) with other individuals seeking therapy; McGraw was a world renowned psychologist who would visit them at the Dr. Phil House to provide therapy to them for their issues; and they could leave the Dr. Phil house at any time. Matchett asserts she specifically was told that McGraw was a licensed medical professional. Plaintiffs signed written release agreements before they were allowed to participate in the Program. Thus, on September 25, 2007, and September 28, 2007, plaintiffs each signed a "Dr. Phil Program Appearance Release (Field Taping)" (September releases). On October 9, 2007, plaintiffs also each signed a "Dr. Phil Program Appearance Release" (October releases). Plaintiffs claim, however, that with respect to the October releases, they were fraudulently induced by defendants into executing those agreements, that defendants' representatives hurried plaintiffs in reviewing and signing them, and that defendants representatives thereafter added pages to them.
All four releases are substantially the same, each about one page long, and each is captioned in bold, capitalized font: "DR. PHIL PROGRAM APPEARANCE RELEASE (FIELD TAPING)" or "DR. PHIL PROGRAM APPEARANCE RELEASE. They provide that plaintiffs "understand and acknowledge that the [Program] consists of a `talk show' format discussion about topics of public interest and that, by its nature, the [Program] includes heated discussions, commentary and remarks." The releases each also provide in part that, "[plaintiffs] will never sue and [plaintiffs] fully release and discharge, [CBS], Peteski Productions, Inc., [McGraw] and/or their respective distributors, assigns, affiliates, licensees, agents, officers, directors, shareholders, employees and attorneys, and each of them for any loss, claims or injuries of every kind and nature which [plaintiffs] may now have or may hereafter acquire arising out of or in connection with the [Program] including without limitation: (a) any claims, demands and causes of action for invasion of privacy or publicity, defamation, infliction of emotional distress and any other tort in connection therewith; . . . (d) because [Plaintiffs did] not like the 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] . . . ." In addition, the releases each provides that: (1) McGraw does not administer individual, group or medical therapies, and that plaintiffs would not be receiving therapy of any kind from him, (2) no promises had been made to plaintiffs other than those expressly set forth in the releases, (3) no promises had been made to plaintiffs about the final or specific content of the Program, and (4) in signing the releases, plaintiffs did not rely on any representations or statements that were not set forth in the releases. Six individuals, including plaintiffs, participated in Program. The Program was produced and filmed in late September and early October 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 were not permitted to access them while in the Dr. Phil House. The food they were provided included items they had identified in questionnaires as being their least favorite foods. All six guests, including the male participants, shared one bathroom. Plaintiffs and
the other participants received very limited group counseling, and the group exercises were not conducted by McGraw. McGraw appeared only occasionally at the Dr. Phil House to speak to plaintiffs. The conditions as administered by the staff were suppose to be part of the therapy provided to plaintiffs. Plaintiffs received "limited group counseling." On several occasions during Matchett's stay at the Dr. Phil House, she wanted to leave because she was unable to communicate with her family. Matchett was convinced to stay by defendants' representations that she could communicate with her family, but defendants prevented those communications from occurring. On the third night at the Dr. Phil House, the participants were told they were going to have a special dinner guest. Later that evening, McGraw appeared on the television monitor and announced, "Here's your dinner guest." The male dinner guest was at the front door, fully naked exposing his genital area. Plaintiffs were shocked and horrified. Plaintiffs ran into a room and shut and locked the door. Dieu heard the crew and others laughing at them. They suffered emotional damages, and Dieu also suffered physical injury. Plaintiffs insisted on leaving, but defendants were uncooperative in allowing them to do so. Plaintiffs ultimately were allowed to leave the Dr. Phil House. Plaintiffs allege various emotional and physical injuries from the experience. B. Procedural Background Plaintiffs, appearing in propria persona, filed separate complaints against most of the defendants. Thereafter, plaintiffs were represented by the same counsel, and they filed separate, but largely identical, first amended complaints (FAC) against all defendants. They each allege eight causes of action against defendants: (1) fraud, (2) negligent misrepresentation, (3) negligence, (4) breach of fiduciary duty, (5) violation of Business and Professions Code section 17200, (6) rescission, (7) intentional infliction of emotional distress, and (8) negligent infliction of emotional distress. All of the causes of action are alleged against all defendants except the cause of action for breach of fiduciary duty is alleged only against McGraw. The two lawsuits ultimately were consolidated.2 The general allegations of each FAC are divided between the "Events Leading Up to Plaintiff's Stay in the `Dr. Phil House,'" and the "Events At the Dr. Phil House." Defendants' alleged conduct prior to the filming of the Program included purported misrepresentations made to induce plaintiffs into staying at the Dr. Phil House. Plaintiffs' allege that defendants misrepresented that the purpose of plaintiffs staying at the Dr. Phil House was to offer therapy, that although it
was a show, it was not a "reality" type show, that plaintiffs would receive personal and direct treatment from McGraw, and that plaintiffs could leave at any time (misrepresentations). Defendants' alleged conduct prior to the filming and broadcast of the Program also included, unbeknownst to plaintiffs, adding pages into a release agreement defendants presented to plaintiffs for signature on October 9, 2007, and either misrepresenting and concealing material facts that McGraw was not a licensed medical professional, and that the Dr. Phil House was a "mock house" on a sound stage in which plaintiffs had limited access to the outside world. Defendants' alleged that conduct during the filming of the Program included purportedly subjecting plaintiffs to a naked man, refusing to allow plaintiffs to leave the Dr. Phil House, and McGraw practicing medicine without a license. Each of plaintiffs' causes of action incorporates by reference the allegations that precede it. Both the fraud and negligent misrepresentation causes of action are premised on the alleged misrepresentations and omissions made to induce plaintiffs into staying at the Dr. Phil House. The negligence cause of action is based on the alleged misrepresentations and omissions made to induce them into participating in the Program, and the allegations of defendants' unspecified treatment of plaintiffs both before and during their stay in the Dr. Phil House. The causes of action for breach of fiduciary duty and violation of Business and Professions Code section 17200 are based on the alleged misrepresentations and omissions made to induce them into participating in the Program, and the allegation McGraw was practicing medicine without a license. The cause of action for rescission is based on the allegation that defendants added pages to October releases presented to plaintiffs for signature on October 9, 2007, and by incorporating by reference the allegations that precede it, the alleged misrepresentations and omissions made to induce them into participating in the Program. The causes of action for intentional infliction of emotional distress and negligent infliction of emotional distress are based on the allegation that defendants' unspecified conduct also caused plaintiffs to suffer emotional distress. Defendants filed a special motion to strike the consolidated lawsuits under section 425.16. The trial court ruled on the evidentiary objections, and denied the motion, finding that defendants did not meet their burden of establishing that section 425.16 applied to plaintiffs' claims.
A. Standard of Review
An order denying a special motion to strike under section 425.16 is directly appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) We review the trial court's order de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79.) We do not weigh the evidence; rather, we accept as true evidence favorable to plaintiff, and evaluate evidence favorable to defendant to determine whether it defeats plaintiff's claim as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1279.) B. Legal Principles "`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 Code of Civil Procedure 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. [Citation.]' (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].)" (Rohde v. Wolf (2007) 154 Cal.App.4th 28, 34.) "The goal [of section 425.16] is to eliminate meritless or retaliatory litigation at an early stage of the proceedings." (Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798, 806.) Section 425.16, provides that "[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), italics added.) "In considering the application of the anti-SLAPP statute, courts engage in a two-step process. `"First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim."' (Taus v. Loftus (2007) 40 Cal.4th 683, 712 [54 Cal.Rptr.3d 775, 151 P.3d 1185], ellipsis in original, quoting Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685] (Equilon).) `"`The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]' [Citation.]" [Citations.]'" (Rohde v. Wolf, supra, 154 Cal.App.4th at pp. 34-35.) "Only a cause
of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) C. Conduct in Furtherance of Free Speech "The phrase `arising from' [set forth] in section 425.16, subdivision (b)(1) has been interpreted to mean that `the act underlying the plaintiff's cause' or `the act which forms the basis for the plaintiff's cause of action' must have been an act in furtherance of the right of petition or free speech." (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1001, see § 425.16, subd. (b)(1).) Section 425.16 applies to any claim arising from protected conduct, regardless of its label. (Navellier, supra, 29 Cal.4th at p. 92.) "We examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520; see Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.) Plaintiffs characterize their claims as follows: "In the instant case, the principal thrust or gravamen of [plaintiffs'] claims are . . . (1) misrepresentation inducing [plaintiffs] to stay in the Dr. Phil House, (2) intentionally subjecting [plaintiffs] to a naked man, (3) practicing medicine without a license, (4) refusing to allow [plaintiffs] to leave the Dr. Phil House, and (5) additional misrepresentations regarding alleged releases." The parties do not dispute that it was defendants' alleged conduct, not defendants' speech, that gave rise to plaintiffs' claims. Defendants claim that all of their alleged conduct "furthers" their right to First Amendment speech. In support of their argument, defendants primarily rely upon Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156 (Lieberman). In that case, defendants posed as patients and secretly recorded a doctor prescribing Vicodin without conducting a medical examination. The defendants broadcasted portions of that interview as part of their television news program. The doctor sued the defendants alleging, inter alia, a violation of Penal Code section 632, which prohibits the intentional and unauthorized recording of a confidential communication. The defendants filed a special motion to strike under section 425.16. (Id. at p. 166.) In opposing the motion, the plaintiff contended that the defendants' conduct that formed the basis of the claim under Penal Code section 632, "the secret recording[,] was not an act in furtherance of [defendants'] right of free speech." (Id. at p. 165.) The plaintiff argued that the "[First Amendment] does not protect illegal conduct, and the press is not `immune from liability for crimes and
torts committed in news gathering activities.'" (Ibid.) In affirming the trial court's order granting the motion, the court in Lieberman stated that the plaintiff's contention "begs the question" because it was not the defendants' burden to establish the conduct was proper; but once the defendants show that the cause of action arose from acts done in furtherance3 of an exercise of free speech, it becomes the plaintiff's burden to establish that the acts were improper. (Id. at p. 165.) Because "[r]eporting the news usually requires the assistance of newsgathering," the court in Lieberman concluded that the conduct of newsgathering, albeit it by means of a secret recording allegedly in violation of the Penal Code, was [nonetheless] "undertaken in furtherance of the news media's right to free speech." (Id. at p. 166, italics in original.) Defendants also rely on Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337. In that case, the defendant produced the nationally broadcast television program "Celebrity Justice," which reported on legal proceedings involving well-known individuals. The defendant assigned a reporter who entered a private room at a nursing home to interview the plaintiff, Marlon Brando's former housekeeper, and video recorded an interview he had with the plaintiff about her relationship with the actor and provisions for her in Brando's will. (Id. at p. 1342.) The plaintiff suffered from dementia and Alzheimer's disease. (Ibid.) Part of the interview was broadcast on "Celebrity Justice" that evening. The plaintiff filed a complaint against the defendant alleging counts for trespass, intrusion upon seclusion, public disclosure of private facts, intentional infliction of emotional distress, and elder abuse under the Elder Abuse Act. The defendant responded with a SLAPP motion. (Id. at p. 1344.) In reversing the trial court's denial of the motion, the court in Hall explained that the conduct forming the basis of the plaintiff's claims—which included "entering [her] private room [and] interviewing her on camera"— "constituted conduct in furtherance of [the] defendants' right of free speech `in connection with a public issue or an issue of public interest.'" (Id. at pp. 1346-1347.) According to defendants, their alleged conduct, whether wrongful or not,4 was in furtherance of the Program—an exercise of free speech. Defendants' alleged conduct is not just tangentially related to the Program; it either occurred to induce plaintiffs to participate in the Program, or occurred during the Program. Plaintiffs claim that conduct "in furtherance" of free speech is limited to conduct that is "required" for the Program, and that which is actually included in the content of an eventual publication. Plaintiffs base this contention on the court's statement in Lieberman, supra,110
Cal.App.4th 156 that "[r]eporting the news usually requires the assistance of newsgathering" and "the surreptitious recordings here were in aid of and incorporated into [the] broadcast . . . ." (Id. at p. 166.) But the court in Lieberman, supra,110 Cal.App.4th 156, did not read a "required" element into what constitutes conduct "in furtherance" of free speech, and plaintiffs cite to no authority imposing such a requirement. Indeed, the court in Lieberman noted that the dictionary definition of "[f]urtherance" "means helping to advance, assisting. [Citation.]" (Id. at p. 166.) The court in Lieberman noted that defendants' specific conduct of making surreptitious recordings was in "aid of" the broadcast. (Ibid.) In the instant case, defendants' conduct in allegedly making certain representations to plaintiffs to induce them into participating in the Program was in "aid of," or in furtherance of, the Program. In addition, plaintiffs' argue that in order to receive protection under the anti-SLAPP statute, the results of defendants' conduct must be broadcast. Plaintiffs, however, do not cite any authority for this proposition, other than to note that the results of the conduct in Lieberman, supra,110 Cal.App.4th 156, Taus v. Loftus, supra,40 Cal.4th 683, and Hall v. Time Warner, Inc., supra, 153 Cal.App.4th 1337, were broadcast. Moreover, plaintiffs' participation in the Program, which directly resulted from defendants' alleged conduct in inducing plaintiffs to participate, and defendants' alleged conduct of exposing plaintiffs to a naked man, were broadcast. We recognize that our application of "in furtherance" of free speech could theoretically apply to virtually all alleged actionable conduct in connection with the production of any form of media. Nevertheless, the authorities, as well as the statutes and admonitions from the Supreme Court to interpret the SLAPP statute broadly (Code Civ. Proc., § 425.16(a); Equilon, supra, 29 Cal.4th at p. 60, fn. 3; Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1121-1122) compel our conclusion here. We do not have to specify the outer limits of the application of the principle of furtherance of free speech. D. Free Speech in Connection With an Issue of Public Interest Section 425.16, subdivision (e) provides four categories included within the phrase "act in furtherance of a person's right of . . . free speech . . ." as used in section 425.16, subdivision (b)(1). Defendants rely upon section 425.16, subdivision (e)(4), which provides for "any . . . conduct [by defendants] in furtherance of the exercise of the . . . constitutional right of free speech in connection with a public issue or an issue of public interest." "[C]onduct" under Section 425.16,
subdivision (e)(4), includes written or oral statements. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 342-343.) The parties do not dispute that statements are conduct under Section 425.16, subdivision (e)(4). They instead dispute whether the right of free speech is in connection with an issue of public interest. The determination of what constitutes an issue of public interest, "like all of section 425.16, is to be construed broadly . . . ." (Seelig v. Infinity Broadcasting, supra, 97 Cal.App.4th at p. 808.) "`[A]n issue of public interest' . . . is any issue in which the public is interested. In other words, the issue need not be `significant' to be protected by the anti-SLAPP statute—it is enough that it is one in which the public takes an interest." (Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1042.) The court in Seelig, supra,97 Cal.App.4th 798, held that a radio host's on-air criticism of a contestant from the reality television program "Who Wants to Marry a Millionaire" related to a matter of public interest. (Id. at p. 807-808.) According to the court, the reality television program was of "significant interest to the public and the media" because of "what its advent signified about the condition of American society," and because of "the presumed millionaire lifestyle to be furnished by the groom." (Ibid.) The court in Seelig also noted that "[r]eality television and talk radio are two of the more popular cultural phenomena of the new century." (Id. at p. 800.) In making its order denying the special motion to strike, the trial court concluded that the Dr. Phil show does not concern a matter of public interest because it is not "a news report that concerns an activity of important public interest. Rather it is a show addressed at helping people deal with their personal issues. . . . The show is essentially a therapy session of individuals that is broadcast for the audiences' entertainment." As discussed above, however, matters of public interest are not limited to those presented by news shows. They include "any issue in which the public is interested." (Nygard, Inc. v. Uusi-Kerttula, supra, 159 Cal.App.4th at p. 1042), such as a radio host's on-air criticism of a contestant from the reality television program (Seelig, supra,97 Cal.App.4th 798), the failure of a website, visited by 35 million people each month, to credit the plaintiff as the producer of a successful movie (Kronemyer v. Internet Movie DataBase, Inc. (2007) 150 Cal.App.4th 941, 949), and a magazine interview of a former employee of a well-known business man regarding poor working conditions. (Nygard, supra, 159 Cal.App.4th at p. 1042.) The Program involves matters of public interest. Plaintiffs executed a series of release agreements which provide that, "[plaintiffs]
understand and acknowledge that the [Program] consists of a `talk show' format discussion about topics of public interest . . . ." It is a special episode of the daily, one-hour television series Dr. Phil. The Dr. Phil show has been broadcast since 1992. That show addresses such issues as weight loss, financial planning, marriage, drug use, and dysfunctional families. The Program is a broadcast of the interaction of people whose opinions and lifestyles are different from one another. Plaintiffs' claims concern defendants' conduct of inducing them to participate in the Program, or defendants' treatment of plaintiffs both before and during their stay at the Dr. Phil House. In either event, plaintiffs' claims arose out of defendants' conduct "in connection with" the Program, which is of public interest. E. Probability of Prevailing on the Merits
1. Deciding the Issue
The trial court did not determine the second prong of the anti-SLAPP statute, whether plaintiffs had a probability of prevailing on the merits, because it found that defendants did not meet their burden of establishing the threshold prong, whether plaintiffs' claims concerned defendants' conduct in furtherance of free speech. Plaintiffs contend we should remand this matter to the trial court for it to determine whether plaintiffs have demonstrated a probability of prevailing on the merits of their claims rather than deciding the issue on appeal. As discussed, we review de novo the trial court's order denying the motion. (Christian Research Institute, supra, 148 Cal.App.4th at p. 79; Flatley, supra, 39 Cal.4th at p. 325.) In Navellier, supra,29 Cal.4th 82, the Supreme Court overruled the Court of Appeal's decision affirming the trial court's order denying the defendant's antiSLAPP motion. (Id. at p. 96.) The Supreme Court remanded the matter to the Court of Appeal, rather than to the trial court, to rule on whether the plaintiffs had demonstrated a probability of prevailing. (Id. at p. 95.) The court stated it was remanding the issue to the Court of Appeal "in the first instance," (ibid.) indicating that the trial court did not rule on the issue. We therefore decide whether plaintiffs have demonstrated a probability of prevailing on the merits. "To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor. [Citations.] The plaintiff's showing of facts must consist of evidence that would be admissible at trial. [Citation.] The court cannot weigh the evidence, but must determine whether the evidence is sufficient to support a judgment in
2. Plaintiffs prima facie showing of a likelihood of prevailing
the plaintiff's favor as a matter of law, as on a motion for summary judgment. [Citations.]" (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346; 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 585.) Defendants contend plaintiffs have not demonstrated a likelihood they would prevail on the merits of their breach of fiduciary duty cause of action and on their claims based upon misrepresentations. We conclude that plaintiffs presented facts showing a prima facie case.
i. Breach of Fiduciary Duty
Plaintiffs' fourth cause of action is for breach of fiduciary duty, and is asserted only against McGraw. To state a claim for breach of fiduciary duty, plaintiffs must prove, (1) the existence of a fiduciary relationship, (2) the breach of that duty, and (3) resulting damages. (Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509.) "[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law." (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.) The fiduciary relationship does not have to be a strict doctor or psychologistpatient relationship. Plaintiffs do use the term "fiduciary" relationship, which has been incorrectly used in some cases as being synonymous with a "confidential relationship." Plaintiffs' allegations can be read as asserting a "confidential relationship," which can "be founded on a moral, social, domestic, or merely personal relationship as well as a legal relationship." (Richelle L. v. Roman Catholic Archbishop (2003) 106 Cal.App.4th 257, 271.) There can be a cause of action for a breach of either a fiduciary or confidential relation. (Id. at p. 273.) Defendants contend plaintiffs have not presented sufficient evidence that McGraw had a fiduciary relationship with them. Plaintiffs, however, have set forth in their declarations that they were told the Program would involve living in a house (the Dr. Phil House) with other individuals seeking therapy, and that McGraw was a world renowned psychologist who would visit them at the Dr. Phil House to provide therapy to them for their issues. Plaintiffs' declarations also provide that they received some group counseling, and that McGraw would occasionally appear at the Dr. Phil House and speak to plaintiffs. That evidence supports a reasonable inference that plaintiffs placed a special trust and confidence in McGraw, and those working on concert with him, based on their agreement to participate in the Program for the purpose of receiving treatment from him and his staff. Plaintiffs set forth facts that McGraw and his staff breached that trust
by failing to provide such treatment. Plaintiffs, therefore, established a prima facie case for the existence of a fiduciary or confidential relationship duty and for a breach of that duty. Plaintiffs acknowledged in the releases that "McGraw does not administer individual, group or medical therapies, and that plaintiffs would not be receiving therapy of any kind from him." That acknowledgement only deals with whether McGraw himself would provide therapy. But that does not eliminate that McGraw's operation would provide therapy. As noted, the experience itself and conditions were reported to be part of the therapy. The language raises a factual issue about whether the parties in fact had any type of confidential relationship. And, as noted, we "cannot weigh the evidence" in determining whether plaintiffs established a prima facie likelihood of prevailing on the merits. (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346; 1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 585.) Plaintiffs' acknowledgment in the releases does not negate plaintiffs' prima facie showing on this claim. Plaintiffs, therefore, have established a prima facie case.
ii. Claims Based Upon Misrepresentation
Plaintiffs testified that various misrepresentations were made to them before their stay at the Dr. Phil House, and, at least in part, base all of their causes of action on those alleged misrepresentations. That testimony establishes a prima facie showing in support of the claims based on misrepresentation. In response to plaintiffs' evidentiary showing, defendants contend plaintiffs' misrepresentation claims are barred because plaintiffs acknowledged in the releases that no promises had been made to them other than those expressly set forth in the releases, and that in signing the releases, they did not rely on any representations or statements that were not set forth in the releases. However, such waivers are ineffective. A general contractual provision that there were no promises, representations, verbal understandings, or agreements except those contained in the contract does not insulate a party from liability for his fraudulent conduct. (Herzog v. Capital Co. (1945) 27 Cal.2d 349, 353 [principal liable for his own fraud]; Ron Greenspan Volkswagen, Inc. v. Ford Motor Land Development Corp. (1995) 32 Cal.App.4th 985, 992-993 ["contract provision that all representations therein does bar an action for fraud"]; Buist v. C. Dudley DeVelbiss Corp. (1960) 182 Cal.App.2d 325, 331). Defendants argue that, in the releases, plaintiffs did not merely waive generally any promises made to them other than those expressly set forth in the releases, but that plaintiffs disclaimed the specific representations upon which plaintiffs sue. Defendants emphasize that
plaintiffs specifically acknowledged that McGraw does not and did not administer therapy, that McGraw's statements were not therapy, that no promises were made regarding final content of the episode of the Program, and that plaintiffs were informed of the general intended subject matter of the Program episode. Defendants therefore conclude that plaintiffs' misrepresentation claims have been waived. When a party to an agreement expressly disclaims specific representations, any misrepresentation claims based on those same representations are deemed waived. (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289.) Plaintiffs' claims of misrepresentations, however, also include representations that were not specifically disclaimed in the releases. In addition to the representations they specifically waived in the releases, plaintiffs also testified that defendants' misrepresented that the purpose of plaintiffs' stay at the Dr. Phil House was to obtain therapy; that although it was a show, it was not a "reality" type show; and that plaintiffs could leave at any time. Plaintiffs further testified that defendants concealed that plaintiffs would have limited access to the outside world. These claims, which are supported by plaintiffs' declarations, have not been waived. Defendants further contend that the trial court erred in overruling their evidentiary hearsay objection to plaintiffs' declarations because plaintiffs failed to specifically identify who made the misrepresentations. According to defendants, plaintiffs did not and cannot prove that any false statements were made. Although plaintiffs, at this early stage in the litigation, do not identify the specific individuals who purportedly made the misrepresentations, the context in which the statements were made establishes that they were made by representatives for, and on behalf of, defendants. (Civil Code, §§ 2295, 2317, 2318, 2334; Labor Code, § 2750.) As such, the evidence was admissible. (Evid. Code, § 1224.) The trial court has discretion in connection with its evidentiary rulings and did not abuse that discretion by overruling defendants' objections. It is true that to state a cause of action for fraud, a plaintiff must be specific and specify the persons who allegedly made the false representations. (See generally 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §§ 711-712, pp. 126-128 (Witkin).) But notwithstanding this rule of specificity of pleading a fraud claim, Witkin has stated, "the court should not look askance at the complaint, and seek to absolve the defendant from liability, on highly technical requirements of form in pleading. . . . [¶] These views have been followed in a number of cases sustaining fraud complaints that would, on stricter scrutiny, be found defective." (Witkin, supra, Pleading, § 714, at p. 129.)
F. Defendants' Legal Arguments Because we have determined that plaintiffs have made a prima facie showing of facts sufficient to support the specific causes of action, defendants can defeat plaintiffs' evidentiary showing only if defendants' evidence establishes as a matter of law that plaintiffs cannot prevail. (Hall v. Time Warner, Inc., supra, 153 Cal.App.4th at p. 1346; 1-800 Contacts, Inc. v. Steinberg, supra, 107 Cal.App.4th at p. 585.) Defendants contend the releases bar plaintiffs' claims as a matter of law. Plaintiffs counter that the October releases were procured by fraud and seek to rescind them. Plaintiffs also argue the releases are unenforceable because they are unconscionable, and they violate Civil Code sections 1542 and 1668. Plaintiffs' rescission claim is of no consequence because it does not address the September releases, and plaintiffs do not argue or present evidence that the September releases were procured by fraud and should be rescinded. Plaintiffs do not even address the September releases. The text of the October releases and that of the September releases, are substantially the same. We, therefore, determine whether the September releases bar plaintiff's claims. We conclude the releases are not unconscionable, and that Civil Code section 1542 does not apply to the releases to limit unknown claims. We also conclude, however, that by virtue of Civil Code section 1688, the releases do not bar plaintiffs' claims.
1. The Releases
Defendants contend that plaintiffs' claims fail because they entered into releases, which releases constitute a defense to plaintiffs' claims as a matter of law. The releases each provide that plaintiffs will never sue defendants, and fully release them, "for any loss, claims or injuries of every kind and nature which [plaintiffs] may now have or may hereafter acquire arising out of or in connection with the [Program] including without limitation (a) any claims, demands and causes of action for invasion of privacy or publicity, defamation, infliction of emotional distress and any other tort in connection therewith . . . ." They also provide that 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] . . . ."
Plaintiffs contend the releases are unenforceable because they are unconscionable. To establish unconscionability, plaintiffs must prove not only that the releases are adhesive, but that the releases are procedurally and substantively unconscionable. (Dotson v. Amgen,
Inc. (2010) 181 Cal.App.4th 975, 980; D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 868-869; Roman v. Superior Court (2009) 172 Cal.App.4th 1462, 1469.) "`[A contract of adhesion] signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it.' [Citation.]" (Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d 333, 344.) Plaintiffs have provided no evidence of whether they were relegated only to a take it or leave it scenario with respect to the releases, particularly with regard to the September releases. On this basis alone, plaintiffs have failed to satisfy their burden to establish that the releases are unconscionable and, therefore, unenforceable. Moreover, as noted in Hulsey v. Elsinore Parachute Center, supra,168 Cal.App.3d 333, "a determination that a contract is adhesive is merely the beginning and not the end of the analysis insofar as enforceability of its terms is concerned." (Id. at 344.) As noted above, to establish unconscionability, plaintiffs must also prove that the releases are procedurally and substantively unconscionable. "Procedural unconscionability focuses on oppression or unfair surprise; substantive unconscionability focuses on overly harsh or one-sided terms. [Citation.] The two factors are interrelated and are to be balanced in determining the enforceability of [the agreement]." (Dotson v. Amgen, Inc., supra, 181 Cal.App.4th at p. 980.) Regarding procedural unconscionability, the court in Hulsey v. Elsinore Parachute Center, supra,168 Cal.App.3d 333 explained, "Enforceability depends upon whether the terms of which the adherent was unaware are beyond the reasonable expectations of an ordinary person or are oppressive . . . ." (Id. at 344.) The court also observed, "It is hard to imagine that plaintiff, after having initialed the agreement in three places and signed it in one could have harbored any reasonable expectations other than what was unambiguously recited in the title and text of the agreement." (Id. at 345.) Thus, the court concluded that "the agreement, in both its language and format, was not one which could even remotely operate to defeat the reasonable expectations of plaintiff and hence be unconscionable if enforced . . . ." (Ibid.) The releases here appear to be largely one-sided in favor of defendants and, therefore, to some extent substantively unconscionable. Plaintiffs, however, have not presented any evidence that the releases were procedurally unconscionable—that the releases were beyond the reasonable expectations of an ordinary person or were oppressive. Plaintiffs each signed two releases, one month apart.
The releases were about one page long, and the captions of the documents were in bold font and all capital letters, advising that they each were a "RELEASE." "[I]t is hard to imagine that plaintiff[s] . . . could have harbored any reasonable expectations other than what was unambiguously recited in the" releases. (Hulsey v. Elsinore Parachute Center, supra, 168 Cal.App.3d at p. 345.) Based upon the record before us, we conclude that plaintiffs have not satisfied their burden on this motion of showing that the releases are unconscionable.
3. Civil Code section 1542
Plaintiffs contend that pursuant to Civil Code section 1542, the releases do not extend to unknown claims such as their claims. Civil Code Section 1542 provides, "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." However, section 1542 has no application here because there was no debtor/creditor relationship between plaintiffs and defendants. (Mesmer v. White (1953) 121 Cal.App.2d 665, 674-675 [rejecting application of section 1542 where "[t]he transaction was not one between a debtor and creditor, nor was the [transaction] a mere release of a debt"].)
4. Civil Code section 1668
Plaintiffs argue the releases are unenforceable because they violate Civil Code sections 1668. Civil Code section 1668 provides that "[a]ll 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." Defendants maintain that, "[a]s interpreted by the courts, Section 1668 applies only to contracts in certain categories, such as those involving essential services." Essential services is incorporated into the several factors outlined by Tunkl v. Regents of University of California (1963) 60 Cal.2d 92 (Tunkl), which identify a transaction as implicating the public interest and, therefore, invalidating the release: "It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party
invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents." (Tunkl, supra, 60 Cal.2d at pp. 98-101, fns. omitted.)5 Tunkl, supra, 60 Cal.2d 92, and the cases cited by defendants, however, concern only negligence claims, and not claims of fraud, intentional torts, or violations of statutory law. (Hulsey v. Elsinore Parachute Center, supra, 168 Cal.App.3d at pp. 342-343 [plaintiff's negligence claims for skydiving]; Kurashige v. Indian Dunes, Inc. (1988) 200 Cal.App.3d 606 [plaintiff's negligence claims for motorbike riding]; Madison v. Superior Court (1988) 203 Cal.App.3d 589 [plaintiff's negligence cause of action arising from injuries sustained while scuba diving].) And, as summarized by Witkin, "The present view is that a contract exempting from liability for ordinary negligence is valid where no public interest is involved . . . and no statute expressly prohibits it [citation]." (1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 660, pp. 737-738.) Applying the factors set forth in Tunkl, supra, 60 Cal.2d at pp. 98-101, fns. omitted, as discussed below, plaintiff's negligence claims are barred by the releases. Nevertheless, "there can be no exemption from liability for intentional wrong, gross negligence, or violation of law. [Citations.]" (1 Witkin, supra, Contracts, § 660, p. 738.) As explained in Baker Pacific Corp. v. Suttles (1990) 220 Cal.App.3d 1148, "`Traditionally, the law has looked carefully and with some skepticism at those who attempt to contract away their legal liability for the commission of torts. This general policy of the common law found legislative expression early in California history with the enactment of Civil Code section 1668. This section made it clear a party could not contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law.' [Citation.]" (Id. at p. 1153.) The court continued, "Here, the broad release clearly includes a release from liability for fraud and intentional acts and thus on its face violates the public policy as set forth in Civil Code section 1668. The trial court erred in determining the release was `not void as against public policy or otherwise.'" (Id. at p. 1154.) In Capri, supra,136 Cal.App.4th 1078, the plaintiff, a member of the
defendant fitness club, executed a release of all future unknown claims against the defendant. The plaintiff sued the defendant for injuries the plaintiff sustained when he slipped and fell on the defendant's pool deck. The court stated that the defendant was in violation of comprehensive statutes regulating swimming pools, and that these violations were the cause of plaintiff's injuries, and therefore the release fell squarely within the explicit statutory prohibition against contractual exculpation for a violation of law and was invalid. The court explained that, "The court in Tunkl was concerned with the validity of an exculpatory clause to avoid responsibility for ordinary negligence. In such a case, Tunkl invalidates any exculpatory provision affecting the public interest. [Citation.] Tunkl did not, however, add a `public interest' requirement where the contract purports to avoid liability for fraud, willful injury, or violation of law, whether intentional or negligent. The plain language of section 1668 renders such exculpatory provisions invalid as against public policy, and nothing in Tunkl alters that. `It is now settled—and in full accord with the language of the statute—that notwithstanding its different treatment of ordinary negligence, under section 1668, "a party [cannot] contract away liability for his fraudulent or intentional acts or for his negligent violations of statutory law," regardless of whether the public interest is affected.' [Citations.]" (Id. at p. 1084, italics added.) Similarly, in Health Net of California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224, plaintiff health plan provider contracted with the defendant Department of Health Services to be one of two health plans providing managed care services to Medi-Cal patients. Plaintiff alleged that in violation of the Welfare and Institutions Code, and its related regulations, the defendant assigned all who failed to select a plan to the plan of plaintiff's competitor. The plaintiff sued for damages for violation of statutory and regulatory law (id. at p. 226-227), but the contract contained an exculpatory clause providing that any remedies for non-compliance with laws not expressly incorporated into the contracts did not include money damages. The court held there can be no exemption from liability for a violation of law, regardless of whether the public interest is involved. (Id. at p. 234) Our Supreme Court in City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, acknowledged the limited application of Tunkl, supra,60 Cal.2d 92 and held that liability for future gross negligence cannot be released. That principle "is based upon a public policy analysis that is different from the `public interest' factors considered under Tunkl, supra,60 Cal.2d 92. Tunkl's public interest
analysis focuses upon the overall transaction—with special emphasis upon the importance of the underlying service or program, and the relative bargaining relationship of the parties—in order to determine whether an agreement releasing future liability for ordinary negligence is unenforceable. By contrast, the out-of-state cases cited and alluded to above, declining to enforce an agreement to release liability for future gross negligence, focus instead upon the degree or extent of the misconduct at issue, as well as the "public policy to discourage" (or at least not facilitate) `aggravated wrongs.' [Citation.] Those cases hold, in essence, that an agreement that would remove a party's obligation to adhere to even a minimal standard of care, thereby sheltering aggravated misconduct, is unenforceable as against public policy." (City of Santa Barbara v. Superior Court, supra, 41 Cal. 4th at p. 762.) The court noted that, "in Tunkl . . . . we considered only the circumstances in which a release of liability for the type of negligence at issue in that case—future ordinary negligence—might be unenforceable." (Id. at p. 764.) The court, therefore, declined to consider the specific public policy factors it set forth in Tunkl, supra,60 Cal.2d 92 in connection with its determination of whether the release of future gross negligence was valid. (Id. at pp. 764-765.)6 The releases here purport to be of all claims and of unknown claims. They provide that, plaintiffs will never sue defendants, and fully release them, "for any loss, claims or injuries of every kind and nature which [plaintiffs] may now have or may hereafter acquire . . . ." They also provide that plaintiffs "voluntarily assume the full risk of any loss or injury . . . that may occur as a result of the production, taping and/or broadcast of the [Program] . . . ." The releases here do not merely seek to limit defendants' liability for economic harm suffered by plaintiffs, or for claims already known to plaintiffs. The public policy factors set forth in Tunkl, supra, 60 Cal.2d at pages 98101 are not involved in the application of section 1668 to plaintiffs' claims for liability based on intentional wrongs, gross negligence, or violations of law. Thus, those claims are not barred by the releases. In determining whether plaintiffs' negligence claims are barred, the factors set forth in Tunkl, supra, 60 Cal.2d at pp. 100-101, fns. omitted, as to whether there is a public interest involved militate against there being a public interest here. Two of the factors favor a determination that there is a public interest. Regarding the factor of whether the "business of a type generally thought suitable for public regulation," the television broadcast of the Program is regulated by, for example, the Federal Communications Commission (FCC). Also, under another factor—whether the releaser is placed under the
control of the release, subject to the risk of carelessness by the releasee or his agents—the record establishes that plaintiffs were largely placed under the control of defendants. Plaintiffs' lived at the Dr. Phil House; described as a largely isolated sound stage; were required to relinquish contact with the outside world; were provided meals to eat; and were exposed to a naked dinner guest. The remaining factors, however, demonstrate that there is no public interest here. Regarding the factor of whether the party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public, defendants correctly maintain the Program is not an essential service. It is a television program, not, for example, a hospital providing a service of practical necessity for members of the public. Under the factor of whether the party holds himself out as willing to perform this service for anyone who seeks it, defendants do not hold themselves out allowing anyone to be on the Program. The evidence establishes that plaintiffs were selected by defendants, and only after plaintiffs submitted comments on the website for the Dr. Phil show. Under the factor of whether the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services, defendants, including CBS which is a business entity, possess a decisive advantage of bargaining power over plaintiffs, who are individuals. This advantage of bargaining strength, however, is not "[a]s a result of the essential nature of the service," as discussed above. Concerning another factor— whether the party with the superior bargaining power confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby the purchaser may pay additional fees and obtain protection against negligence—there is no evidence of whether plaintiffs' could have provided defendants with compensation to obtain protection against negligence. Considering all the factors, the releases exempt defendants from liability for plaintiffs' negligence claims. Both intentional and negligent misrepresentations are included within the meaning of "fraud" in section 1668. (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 794; Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 404.) Plaintiffs' first and second causes of action for fraud and negligent misrepresentations, therefore, are not barred by the releases. The fourth cause of action for breach of fiduciary duty also is not barred, pursuant to the provisions of Civil Code section 1668. (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 654 [the public policy of Civil Code section 1668 "applies with added force when the
exculpatory provision purports to immunize persons charged with a fiduciary duty from the consequences of betraying their trusts"].) Similarly, the fifth cause of action for violation of Business and Professions Code section 17200 is not barred by the releases. Civil Code section 1668 makes "it clear [that] a party could not contract away liability for . . . his negligent violations of statutory law. However, a contract exempting from liability for ordinary negligence is valid . . . where no statute expressly prohibits it. [Citations.]" (Baker Pacific Corp. v. Suttles, supra, 220 Cal.App.3d at pp. 1153-1154.) Here, plaintiffs' allege Business and Professions Code section 17200 prohibits defendants' conduct. Plaintiffs' sixth cause of action for rescission which is premised largely upon the misrepresentations, and the seventh cause of action for intentional infliction of emotional distress, an intentional tort, are also not barred. Plaintiffs' third cause of action for negligence, and the eighth causes of action for negligent infliction of emotional distress, however, are premised upon ordinary negligence. Accordingly, as discussed above, they are barred by the releases. Our conclusions are just based on the evidence submitted in connection with this motion. We do not intend to opine on any legal or evidentiary issues beyond this anti-SLAPP motion. G. Attorney Fees and Costs Section 425.16, subdivision (c)(1) states that, "[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs."7 It is within the "broad discretion" of the trial court to determine whether a defendant who partially succeeds on an anti-SLAPP motion is entitled to fees and costs. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340; Moran v. Endres (2006) 135 Cal.App.4th 952, 955.) And, "Where the results of the motion are `"minimal"' or `insignificant' a court does not abuse its discretion in finding the defendant was not a prevailing party. [Citations omitted.]" (Mann v. Quality Old Time Service, Inc., supra, 139 Cal.App.4th at p. 340.) The trial court shall exercise its discretion on whether to award defendants their attorney fees and costs.
The trial court's order denying defendants' special motion to strike pursuant to section 425.16 is affirmed as to plaintiffs' first cause of action for fraud, the second cause of action for negligent misrepresentation, the fourth causes of action for breach of fiduciary duty, the fifth causes of action for violation of Business and Professions code section 17200, the sixth causes of action for rescission, and the seventh causes of action for intentional infliction
of emotional distress. The trial court's order is reversed as to the third causes of action for negligence, and the eighth cause of action for negligent infliction of emotional distress. Upon remand the trial court shall exercise its discretion to ascertain any award of attorney fees and costs. We concur. TURNER, P. J. KRIEGLER, J.
1. All statutory citations are to the Code of Civil Procedure unless otherwise noted.
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2. Because the FACs are largely identical, and the two lawsuits have been consolidated, we reference the same causes of action—e.g. the first causes of action—in the singular. 3. Conduct in furtherance of free speech, as in unlawful newsgathering activity, may "not enjoy constitutional protection to the same extent as" the speech itself. (Lieberman, supra, 110 Cal.App.4th at pp. 165-166.) As the court in Lieberman explained, "`The right to speak and publish does not carry with it the unrestrained right to gather information.' [Citation.] `While reporters are not privileged to commit crimes and independent torts in gathering the news, and the press has no special constitutional right of access to information, "news gathering is not without its First Amendment protections." [Citation.]' [Citation.]" (Ibid.)
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4. The issue of whether defendants' conduct is wrongful is considered in the second phase of the analysis during which it is determined whether plaintiffs have made a prima facie showing of a probability of prevailing on their claims.
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5. See Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084 (Capri). Also, another factor set forth in Tunkl concerns whether the claimant "may pay additional fees and obtain protection against negligence." (Tunkl, supra, 60 Cal.2d at pp. 100-101; italics added.)
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6. CAZA Drilling (California), Inc. v. TEG Oil & Gas U.S.A., Inc. (2006) 142 Cal.App.4th 453 is not determinative. It was decided before City of Santa Barbara v. Superior Court, supra,41 Cal.4th 747 and involved a claim for economic damages based on negligent violations of safety regulations. The court in Reudy v. Clear Channel Outdoors, Inc. (N.D. Cal. 2007) 693 F.Supp.2d 1091 (adopting a report of a special master) acknowledges that public policy is not involved in the application of section 1668 to a claim arising out of alleged violations of zoning codes, but nevertheless did not apply section 1668—admittedly without any authority on point—because "two business entities with equal bargaining power should be able to voluntarily enter into a Release Agreement whereby one pays the other in order to continue its' allegedly wrongful conduct." (Id. at p. 1118.) That case is not at all comparable to the instant case.
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7. Section 425.16, subdivision (c)(1) states in full, "[I]n any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her
attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5."
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