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Catsouras v. Dep't of the California Highway Patrol

January 29, 2010

CHRISTOS CATSOURAS ET AL., PLAINTIFFS AND APPELLANTS,
v.
DEPARTMENT OF THE CALIFORNIA HIGHWAY PATROL ET AL., DEFENDANTS AND RESPONDENTS.



Appeals from judgments of the Superior Court of Orange County, Steven L. Perk, Judge. Reversed. (Super. Ct. No. 07CC07817).

The opinion of the court was delivered by: Moore, J.

CERTIFIED FOR PUBLICATION

OPINION

Nicole Catsouras (decedent) suffered a tragic end to her young life. At age 18, she was decapitated in an automobile accident. With her demise, the torment of her family members began. They endured not only her death, and the hideous manner of it, but also the unthinkable exploitation of the photographs of her decapitated remains. Those photographs were strewn about the Internet and spit back at the family members, accompanied by hateful messages.

In a second amended complaint against the State of California Highway Patrol (CHP) and two of its peace officers, Thomas O'Donnell (O'Donnell) and Aaron Reich (Reich), decedent's father, mother and sisters (plaintiffs) alleged that O'Donnell and Reich had e-mailed the horrific photographs of decedent's mutilated corpse to members of the public unrelated to the accident investigation. Plaintiffs alleged more specifically, in their opposition to a demurrer, that O'Donnell and Reich had e-mailed nine gruesome death images to their friends and family members on Halloween-for pure shock value. Once received, the photographs were forwarded to others, and thus spread across the Internet like a malignant firestorm, popping up in thousands of Web sites. Plaintiffs further alleged that Internet users at large then taunted them with the photographs, in deplorable ways.

The trial court, finding no duty on behalf of O'Donnell and Reich running in favor of plaintiffs, and no basis for a title 42 United States Code section 1983 (section 1983) cause of action, sustained demurrers without leave to amend as to O'Donnell and Reich. It thereafter entered judgments of dismissal as to them and a judgment on the pleadings in favor of the CHP. We reverse.

California law clearly provides that surviving family members have no right of privacy in the context of written media discussing, or pictorial media portraying, the life of a decedent. Any cause of action for invasion of privacy in that context belongs to the decedent and expires along with him or her. (Flynn v. Higham (1983) 149 Cal.App.3d 677 (Flynn).) The publication of death images is another matter, however. How can a decedent be injured in his or her privacy by the publication of death images, which only come into being once the decedent has passed on? The dissemination of death images can only affect the living. As cases from other jurisdictions make plain, family members have a common law privacy right in the death images of a decedent, subject to certain limitations. The court erred in sustaining the demurrers of O'Donnell and Reich as to the invasion of privacy cause of action.

In addition, the court erred in sustaining the demurrers as to the cause of action for intentional infliction of emotional distress. In their second amended complaint, plaintiffs alleged both that O'Donnell and Reich had acted with the intent to cause them emotional distress and that they had acted with reckless disregard of the probability of causing them emotional distress. The first of these allegations is sufficient to withstand a demurrer.

We also disagree that plaintiffs have no cause of action for negligence, supporting emotional distress damages. Applying the time tested factors enunciated in Rowland v. Christian (1968) 69 Cal.2d 108 (Rowland) (the Rowland factors), we conclude that the CHP and its officers owed plaintiffs a duty of care not to place decedent's death images on the Internet for the purposes of vulgar spectacle. In reaching this conclusion, we find three of the Rowland factors to be particularly important in this case: foreseeability, moral blame, and the prevention of future harm. It was perfectly foreseeable that the public dissemination, via the Internet, of photographs of the decapitated remains of a teenage girl would cause devastating trauma to the parents and siblings of that girl. Moreover, the alleged acts were morally deficient. We rely upon the CHP to protect and serve the public. It is antithetical to that expectation for the CHP to inflict harm upon us by making the ravaged remains of our loved ones the subjects of Internet sensationalism. It is important to prevent future harm to other families by encouraging the CHP to establish and enforce policies to preclude its officers from engaging in such acts ever again.

We note that we do not have at issue here the freedom of the press. We address only the duties of CHP officers. The CHP here undertook to perform an investigation and to collect evidence. It was not in furtherance of the investigation, the preservation of evidence, or any other law enforcement purpose, to deliberately make a mutilated corpse the subject of lurid gossip. We determine the existence of duty on a case-by-case basis. Under the extraordinary facts of this case, O'Donnell and Reich owed plaintiffs a duty not to exploit CHP-acquired evidence in such a manner as to place them at foreseeable risk of grave emotional distress.

The trial court erred in granting judgment on the pleadings in favor of the CHP, inasmuch as plaintiffs have stated viable causes of action against O'Donnell and Reich and the CHP may be vicariously liable under Government Code section 815.2, subdivision (a). However, the trial court properly sustained the demurrer of the CHP as to the section 1983 cause of action against it. The cause of action against the CHP failed due to the doctrine of sovereign immunity.

The section 1983 cause of action against O'Donnell and Reich also failed. Plaintiffs did not plead facts sufficient to allege that the actions of O'Donnell and Reich violated any clearly established constitutional right. Consequently, the doctrine of qualified immunity shielded O'Donnell and Reich from liability under section 1983. The trial court properly sustained the demurrers of O'Donnell and Reich as to the section 1983 cause of action.

I. FACTS

Plaintiffs Christos Catsouras, Lesli Catsouras, Danielle Catsouras, Christina Catsouras and Kira Catsouras filed a second amended complaint against the CHP, O'Donnell, and Reich following the death of decedent. In that complaint, plaintiffs alleged as follows. On October 31, 2006, decedent, the daughter of Christos and Lesli Catsouras and the sister of Danielle, Christina and Kira Catsouras, was decapitated in an automobile accident. CHP officers arrived at the scene, cordoned off the area where the accident occurred, and took control of decedent's remains. The CHP officers took multiple photographs of her decapitated corpse. The photographs were downloaded or otherwise transmitted to one or more CHP computers. O'Donnell and Reich, without plaintiffs' consent, e- mailed or otherwise transmitted "graphic and horrific photographs" of decedent to members of the public who were not involved in the official investigation of the car crash in which decedent perished. Thereafter, more than 2,500 Internet Web sites in the United States and the United Kingdom posted the photographs. Plaintiffs were subjected to malicious taunting by persons making use of the graphic and horrific photographs. For example, Christos Catsouras, decedent's father, received e-mails containing the photographs, including one entitled "Woo Hoo Daddy" that said, "Hey Daddy I'm still alive." Some Web sites painted decedent's life in a false light, including one that described decedent "as a `stupid bitch,' [and] a `swinger,' . . . ." As a proximate result of the acts of defendants, plaintiffs suffered severe emotional and mental distress.

Plaintiffs asserted eight causes of action: (1) violation of section 1983 (all defendants); (2) negligence (O'Donnell and Reich); (3) negligent infliction of emotional distress (O'Donnell and Reich); (4) intentional infliction of emotional distress (O'Donnell and Reich); (5) invasion of privacy (O'Donnell and Reich); (6) negligent supervision and retention (CHP and O'Donnell); (7) tortious act or omission of public employees (Gov. Code, §§ 820, subd. (a), 820.8) (O'Donnell and Reich); and (8) vicarious liability of public entity (Gov. Code, § 815.2, subd. (a)) (CHP).

The CHP filed a demurrer as to the first and sixth causes of action. Plaintiffs thereafter dismissed the sixth cause of action as against the CHP only. The court sustained the demurrer as to the first cause of action, without leave to amend, holding that the CHP was not a "person" for the purposes of section 1983, and was immune from liability under the Eleventh Amendment to the United States Constitution and the doctrine of sovereign immunity.

Reich filed a demurrer challenging each of the causes of action against him. In their opposition to Reich's demurrer, plaintiffs alleged that the CHP's traffic collision report contained 50 photographs of the accident scene and decedent's uncovered decapitated corpse. They further alleged that O'Donnell and Reich had "released 9 of 50 graphic and horrific photographs to their family and friends via electronic mail for shock value on Halloween." Plaintiffs also alleged that the CHP had admitted that the unauthorized release of the photographs violated CHP policy.

The court sustained the demurrer without leave to amend. In so doing, it stated that while the conduct of third parties toward plaintiffs had been "utterly reprehensible," the conduct in question was that of Reich, who owed no duty of care to plaintiffs. A judgment of dismissal was entered with respect to Reich, and plaintiffs appealed.

In addition, O'Donnell filed a demurrer with respect to each cause of action against him. The court sustained that demurrer without leave to amend as well. Judgment was entered dismissing the complaint as to O'Donnell. Plaintiffs appealed.

Only one cause of action remaining against it, the CHP filed a motion for judgment on the pleadings. The CHP argued that because the remaining cause of action was for vicarious liability, and there were no remaining defendants upon which such liability could be based, it was entitled to judgment. The court granted the motion. Judgment was entered accordingly and plaintiffs appealed.

The appeals were consolidated in this court.

II. DISCUSSION

A. Introduction:

Government Code section 820 states: "(a) Except as otherwise provided by statute . . . , a public employee is liable for injury caused by his act or omission to the same extent as a private person. [¶] (b) The liability of a public employee . . . is subject to any defenses that would be available to the public employee if he were a private person." Government Code section 820.8, in turn, provides that a public employee is not exonerated "from liability for injury proximately caused by his own negligent or wrongful act or omission." We apply general principles of tort law to determine the duty of CHP officers acting within the scope of their employment and the potential liability of the CHP and its officers arising out of the officers' conduct. (Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715-716 (Lugtu).)

According to plaintiffs, the trial court erred in applying those ordinary principles of tort law, as well as certain federal and state statutory provisions. They maintain that they stated causes of action for: (1) invasion of privacy; (2) intentional infliction of emotional distress; (3) negligence; (4) vicarious liability of the CHP, pursuant to Government Code section 815.2, subdivision (a); and (4) violation of section 1983. We address these contentions in turn.

B. Standard of Review Applicable to State Law Claims:

With respect to the state law claims, "[t]he standard of review on an appeal from judgment of dismissal following sustaining of a general demurrer is guided by long settled rules. We treat the demurrer as admitting all material facts properly pleaded, as well as those which reasonably arise by implication, but not contentions, deductions or conclusions of fact or law. [Citations.] `Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.' [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action on any theory. [Citations.] Moreover, `"the allegations of the complaint must be liberally construed with a view to attaining substantial justice among the parties."` [Citations.] A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations. [Citation.]" (Yue v. City of Auburn (1992) 3 Cal.App.4th 751, 756-757 (Yue).) We discuss separately the more particular rules applicable in the context of the section 1983 action.

C. Invasion of Privacy:

Plaintiffs first argue that the court erred in holding they did not state a cause of action for invasion of privacy. They claim O'Donnell and Reich invaded their privacy by disclosing private facts.

The elements of a claim of invasion of privacy based on the public disclosure of private facts are as follows: "`(1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern.' [Citations.]" (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.) The trial court relied on two cases in holding that the plaintiffs had not stated a cause of action - Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463 (Miller) and Flynn, supra, 149 Cal.App.3d 677.

In Miller, supra, 187 Cal.App.3d 1463, a man suffered a heart attack at home in his own bedroom. The paramedics arrived at the scene, accompanied by a television camera crew seeking footage for a documentary about the paramedics. (Id. at pp. 1469, 1474.) The camera crew filmed the paramedics' efforts to save the man. (Id. at p. 1469.) The film was shown on television a number of times - on the news (twice), on a documentary about the paramedics, and on various promotional spots for the documentary. (Id. at pp. 1469, 1475-1477.) The man died later that evening at the hospital and his wife and daughter sued the television company and others. (Id. at pp. 1469-1470.) The trial court granted summary judgment in favor of the defendants. (Id. at p. 1470.)

The appellate court reversed as to the wife and affirmed as to the daughter. (Miller, supra, 187 Cal.App.3d at p. 1493.) The court first held that the wife had stated a cause of action for trespass, inasmuch as the television company had not obtained her permission to enter her home and film the paramedics' actions. (Id. at pp. 1480- 1481.) It then held that she had stated a cause of action for invasion of privacy-not based on public disclosure of private facts, but based on intrusion into the seclusion of her own home. (Id. at pp. 1481-1484.) It also held that she had stated a cause of action for intentional infliction of emotional distress. (Id. at pp. 1487-1488.)

The daughter, who did not live with her parents, but who saw the broadcast of the paramedics working on her father, also brought a cause of action based on intrusion into seclusion. (Miller, supra, 187 Cal.App.3d at pp. 1471, fn. 2, 1476, 1488-1489.) She alleged not that the camera crew had entered her own home, but rather that the broadcasts themselves constituted intrusions into her home. (Id. at p. 1489.) The appellate court in Miller declined to extend the tort to cover her situation, stating that it "[did] not hold that such intrusion could not conceivably occur, but [that] delineation of a tort of [that] nature [would have to] await more appropriate circumstances." (Id. at p. 1489.)

Miller, supra, 187 Cal.App.3d 1463 is inapposite because it was based on a claim of invasion of privacy in the guise of intrusion into seclusion, not public disclosure of private facts. (See id. at p. 1482 [describing four distinct privacy interests].) It is also distinguishable because it had to do with a film clip of the paramedics working on a heart attack victim, rather than still images of a corpse. Although the daughter stated "that the telecast indicated that [the victim] was `brought back' several times before he died[,]" there is no indication that the film clip included any death images. (Id. at p. 1477.) To the contrary, even though the wife apparently characterized the clip as a broadcast of "the last moments of her dying husband's life," the case makes clear that he actually died later that evening at the hospital. (Id. at pp. 1469, 1475, 1488.) Furthermore, the film clip apparently did not include a shot of the victim's face or otherwise identify him. (Id. at p. 1475.) When the daughter saw the film clip on television she thought it pertained to her father because she recognized her parents' home and because she caught a fleeting glance of a tattoo she thought was her father's, not because the clip displayed his corpse for all the world to see. (Id. at pp. 1476-1477.)

The Miller court noted that the daughter's claim fell within the purview of Flynn, supra, 149 Cal.App.3d 677, which "precludes claims by relatives of victims wronged by publicity as a matter of sound policy." (Miller, supra, 187 Cal.App.3d at p. 1489.) The comment about Flynn was dictum, however, inasmuch as the Miller court held there was no intrusion into the seclusion of the daughter's home. In any event, Flynn did not address the dissemination of death images, and does not control in that context, as we shall show.

In Flynn, supra, 149 Cal.App.3d 677, the children of actor Errol Flynn brought a defamation action against both the author of a book about their father and the publisher of the book. According to their complaint, the book stated that their father was a Nazi spy and a homosexual. (Id. at p. 679.) In affirming the order sustaining the defendants' demurrer, the appellate court stated: "`Defamation of a deceased person does not give rise to a civil right of action at common law in favor of the surviving spouse, family, or relatives, who are not themselves defamed.'" (Id. at p. 680.)

The Flynn court also rejected the plaintiffs' invasion of privacy claim. It stated: "`It is well settled that the right of privacy is purely a personal one; it cannot be asserted by anyone other than the person whose privacy has been invaded, that is, plaintiff must plead and prove that his privacy has been invaded. [Citations.] Further, the right does not survive but dies with the person. [¶] It is clear that the publication must contain some direct reference to the plaintiff. The publication must invade the plaintiff's privacy. Where the publication was directed at another individual and referred incidentally to the plaintiff but was not directed at him, no recovery can be had. Where the plaintiff's only relation to the asserted wrong is that he is a relative of the victim of the wrongdoer, and was unwillingly brought into the limelight, no recovery can be had.' (Italics in original.) [Citation.]" (Flynn, supra, 149 Cal.App.3d at p. 683.)

This language, standing in isolation, provides strong support for the position of O'Donnell and Reich. But the language must be read in context. Flynn, supra, 149 Cal.App.3d 677 cites a number of cases in support of the quotation. (Id. at p. 683.) Not one of those cases pertains to the dissemination of death images of a decedent. Instead, these cases have to do with written media discussing, or pictorial media portraying, the life of a decedent. (See Coverstone v. Davies (1952) 38 Cal.2d 315 [publicity surrounding arrest and trial of family member]; Werner v. Times-Mirror Co. (1961) 193 Cal.App.2d 111 [newspaper article about man and deceased wife]; James v. Screen Gems, Inc. (1959) 174 Cal.App.2d 650 [movie about deceased husband]; Kelly v. Johnson Publishing Co. (1958) 160 Cal.App.2d 718 [magazine article about deceased boxer]; Metter v. Los Angeles Examiner (1939) 35 Cal.App.2d 304 [newspaper article, with lifetime photograph, about deceased wife]; Hendrickson v. California Newspapers, Inc. (1975) 48 Cal.App.3d 59 [obituary revealing criminal past].) While the cited cases do show that, in some contexts, the right of privacy dies along with the person who is the subject matter of the publication, this is not invariably so.

The impact of death images on the living, the relatives of a decedent, has been addressed in other jurisdictions. Several cases of note include National Archives and Records v. Favish (2004) 541 U.S. 157 (National Archives), Sellers v. Henry (Ky.Ct.App. 1959) 329 S.W.2d 214 (Sellers), and Melton v. Bd. of County Com'rs of Hamilton County (S.D. Ohio 2003) 267 F.Supp.2d 859 (Melton). Of course, none of these cases controls the matter before us, but each of them provides persuasive authority.

In National Archives, supra, 541 U.S. 157, the court addressed whether certain death scene images should be released under the Freedom of Information Act (5 U.S.C. § 552). In particular, it determined whether photographs of certain body parts of a decedent who had apparently committed suicide were exempt from disclosure under section 552(b)(7)(C). (National Archives, supra, 541 U.S. at pp. 160-161.) "Exemption 7(C) excuses from disclosure `records or information compiled for law enforcement purposes' if their production `could reasonably be expected to constitute an unwarranted invasion of personal privacy.' § 552(b)(7)(C)." (National Archives, supra, 541 U.S. at p. 160.)

The court emphasized that the decedent's relatives were invoking their own privacy rights, not the rights of the decedent. (National Archives, supra, 541 U.S. at p. 166.) This was made clear in the declaration of the decedent's sister, who stated: "[I am] `horrified and devastated by [a] photograph [already] leaked to the press.' [Citation.] `[E]very time I see it,' [she] wrote, `I have nightmares and heart-pounding insomnia as I visualize how he must have spent his last few minutes and seconds of his life.' [Citation.] . . . "I fear that the release of [additional] photographs certainly would set off another round of intense scrutiny by the media. Undoubtedly, the photographs would be placed on the Internet for world consumption. Once again my family would be the focus of conceivably unsavory and distasteful media coverage.' [Citation.]" (Id. at p. 167.)

In determining whether the release of the death images would constitute an invasion of privacy within the meaning of Exemption 7(C), the court concluded that Congress "intended to permit family members to assert their own privacy rights against public intrusions long deemed impermissible under the common law and in our cultural traditions." (National Archives, supra, 541 U.S. at p. 167.) The court stated it "[had] little difficulty . . . in finding in our case law and traditions the right of family members . . . to limit attempts to exploit pictures of the deceased family member's remains for public purposes." (Ibid.) The court then explored the scope of the surviving family members' common law privacy rights.

As the court observed, "Burial rites or their counterparts have been respected in almost all civilizations from time immemorial. [Citations.] They are a sign of the respect a society shows for the deceased and for the surviving family members. . . . The outrage at seeing the bodies of American soldiers mutilated and dragged through the streets is . . . a[n] . . . instance of the . . . understanding of the interests decent people have for those whom they have lost. Family members have a personal stake in honoring and mourning their dead and objecting to unwarranted public exploitation that, by intruding upon their own grief, tends to degrade the rites and respect they seek to accord to the deceased person who was once their own. [¶] In addition this well-established cultural tradition acknowledging a family's control over the body and death images of the deceased has long been recognized at common law." (National Archives, supra, 541 U.S. at pp. 167-168.)

In addition, the court stated: "`It is the right of privacy of the living which it is sought to enforce here. That right may in some cases be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living, and not that of the dead, which is recognized. A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings, and to prevent a violation of their own rights in the character and memory of the deceased.' [Citation.]" (National Archives, supra, 541 U.S. at pp. 168-169.)

In short, the court in National Archives, supra, 541 U.S. 157, recognized that family members have a privacy right in the death images of a decedent. Yet O'Donnell and Reich say this privacy right is limited to the context of the Freedom of Information Act. As they see it, family members can invoke the right to block the dissemination of death images under that federal act, but not otherwise. After all, the court in National Archives, supra, 541 U.S. 157 did state "that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the Constitution. [Citation.]" (National Archives, supra, 541 U.S. at p. 170.)

At the same time, however, the court in National Archives, supra, 541 U.S. 157 continued on to state: "It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law." (Id. at p. 170.) In other words, the court reviewed the scope of the family members' privacy right under common law and then concluded that the right could be no less extensive under Exemption 7(C). It did not limit the application of the family members' privacy right to the Freedom of Information Act context. Indeed, one commentator has construed National Archives as "[giving] the green light to judges across the country to recognize family members' privacy rights over the images of their dead loved ones beyond the narrow confines of [Freedom of Information Act] access disputes." (Calvert, The Privacy of Death: an Emergent Jurisprudence and Legal Rebuke to Media Exploitation and a Voyeuristic Culture (2006) 26 Loy. L.A. Ent. L.Rev. 133, 136.)

The court in Miller, supra, 187 Cal.App.3d 1463, of course, did not have the opportunity to address the discussion of common law as contained in National Archives, supra, 541 U.S. 157, which was decided more than 17 years later. The Miller court had before it only the line of California cases arising out of the rights of family members to stop the publication of written media concerning, and the release of movies portraying, the life of a decedent. Furthermore, Miller did not deal with the publication of death images per se.

We note that courts in other states, having addressed factual situations much more nearly akin to the one before us, have concluded, as did the Supreme Court in National Archives, supra, 541 U.S. 157, that family members do have their own privacy rights in death images. Two such cases are Sellers, supra, 329 S.W.2d 214 and Melton, supra, 267 F.Supp.2d 859.

In Sellers, supra, 329 S.W.2d 214, an appellate court in Kentucky addressed a matter where a state police officer, in the line of duty, took photographs of the mutilated corpse of the plaintiffs' child and those photographs were in some manner published. The court, recognizing a privacy right in the plaintiffs, reversed a summary judgment against them. It stated that the plaintiffs could not recover for invasion of privacy unless the decedent had been identified as the person in the photograph, and countervailing issues of public interest did not excuse the invasion of privacy. (Id. at pp. 215-216.) Because the plaintiffs' complaint and the defendant's affidavit left genuine issues of material fact on these points, summary judgment was inappropriate. (Id. at p. 216.) The court observed: "[W]e are not advised of any basis upon which it could be held that a police officer who has taken a picture in the line of his duties has an absolute and unqualified right to publish it without regard to purpose." (Id. at p. 216.)

In Melton, supra, 267 F.Supp.2d 859, the surviving siblings of the decedent brought a section 1983 action against a photographer, a county coroner, and related parties. They alleged that the coroner and other defendants had permitted the photographer to touch and pose their brother's body and photograph it for commercial purposes. (Id. at p. 861.) On a motion for judgment on the pleadings, the district court addressed whether the plaintiffs had stated a viable claim founded on theories of deprivation of property or invasion of privacy. (Id. at p. 862.) It held that they had. (Id. at p. 865.)

With respect to the invasion of privacy cause of action, the Melton court stated: "It is not difficult . . . to find that families have a right not to be embarrassed or humiliated by the outrageous display or exposure to public view of the remains of a loved one. This is not to say that the official photography of decedent at the scene of death or in an autopsy report would provide the basis for such a claim, as long as such official photos remained in the files of the coroner and they were not released to the public. However, as such documentary photographs ordinarily would not be in the public domain, the use of such photos for personal gain may be actionable . . . ." (Melton, supra, 267 F.Supp.2d at p. 865.)

Of course, as noted previously, neither Sellers, supra, 329 S.W.2d 214 nor Melton, supra, 267 F.Supp.2d 859 governs the matter before us, but the cases do constitute persuasive authority. (See also Douglas v. Stokes (Ky. 1912) 149 S.W. 849; Bazemore v. Savannah Hospital (Ga. 1930) 155 S.E. 194; but see Waters v. Fleetwood (Ga. 1956) 91 S.E.2d 344.) Moreover, California case law has not heretofore addressed the precise issue before us, having to do with gruesome death images that were in the control of law enforcement officers and allegedly disseminated out of sheer morbidity or gossip, as opposed to any official law enforcement purpose or genuine public interest.

We recognize that there are instances in which matters pertaining to the dead or dying may involve issues of public interest, as in Miller, supra, 187 Cal.App.3d 1463. (See also Waters v. Fleetwood, supra, 91 S.E.2d 344.) The court in Miller assumed that public education about the paramedics' use of life-saving techniques would qualify as news. (Miller, supra, 187 Cal.App.3d at p. 1491.) It also noted that the constitutional protection afforded freedom of the press "must be considered when any private citizen seeks to impose civil liability for invasion of privacy by the press or media through access to state courts. [Citation.]" (Id. at pp. 1491-1492.)

In the matter before us, however, there is no indication that any issue of public interest or freedom of the press was involved. "`In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern.'" (Virgil v. Time, Inc. (9th. Cir. 1975) 527 F.2d 1122, 1129.) Put another way, morbid and sensational eavesdropping or gossip "serves no legitimate public interest and is not deserving of protection. [Citations.]" (Diaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126.)

Here, the picture painted by the second amended complaint is one of pure morbidity and sensationalism without legitimate public interest or law enforcement purpose. The trial court erred in sustaining the demurrers of O'Donnell and Reich as to the cause of action for invasion of privacy.

D. Intentional Infliction of Emotional Distress:

"The elements of the tort of intentional infliction of emotional distress are: `"(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . ." Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.' [Citation.]" (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903 (Christensen).) "It is not enough that the conduct be intentional and outrageous. It must be conduct directed at the plaintiff, or occur in the presence of a plaintiff of whom the defendant is aware." (Ibid.)

O'Donnell contends that plaintiffs' allegations are insufficient to state a cause of action for intentional infliction of emotional distress because plaintiffs neither alleged that the challenged conduct was directed at them nor alleged that they were present at the time of the dissemination of the photographs. Had plaintiffs alleged only reckless conduct on the part of O'Donnell and Reich, we would have to agree that, under current California law, their complaint would fail to state a cause of action for intentional infliction of emotional distress. Case law shows that "if reckless conduct is the basis for recovery, the plaintiff is usually present at the time of the conduct and is known by the defendant to be present. [Citation.]" (Christensen, supra, 54 Cal.3d at p. 905.) Plaintiffs here do not allege that they were present when the e-mails were sent.

However, in their second amended complaint, in addition to alleging reckless conduct, plaintiffs also alleged that the e-mails were sent "with the intention of causing" emotional distress to decedent's close family members. On appeal, they emphasize that the CHP was aware, at least as of the time Christos Catsouras identified himself at the accident scene, that he was decedent's father. Plaintiffs speculate that the ...


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