Opinion
NOT TO BE PUBLISHED
Appeals from judgments of the Superior Court of Orange County No. 30-2007-00100644, Steven L. Perk, Judge.
Law Offices of Debra L. Koven and Debra L. Koven for Plaintiffs and Appellants.
Edmund G. Brown, Jr., Attorney General, Joel A. Davis and Elizabeth S. Angres, Deputy Attorneys General, for Defendant and Respondent State of California Highway Patrol.
Schlueter & Schlueter and Jon R. Schlueter for Defendant and Respondent Aaron Reich.
R. Rex Parris Law Firm, R. Rex Parris, Alexander R. Wheeler and Jason Fowler for Defendant and Respondent Thomas O’Donnell.
OPINION
MOORE, J.
This case is a companion to the case we recently decided in Christos Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856 (Catsouras). The underlying complaint in Catsouras was filed by the decedent’s biological mother, her stepfather, and certain of her siblings. The underlying complaint in the case before us arises out of the same facts and was filed by decedent’s biological father and her other siblings, through their guardian ad litem, Denise Mayo.
The protestations of defendants Thomas O’Donnell (O’Donnell) and Aaron Reich (Reich) notwithstanding, Catsouras, supra, 181Cal.App.4th 856 controls the outcome of this case. We reverse and remand.
I
FACTS
Plaintiffs Tony D. Mayo, Jessie J. Mayo, Madison D. Mayo, Parker David Mayo, and Dylan Dean Mayo (plaintiffs) filed a complaint against O’Donnell, Reich and the State of California Highway Patrol (CHP). Plaintiffs asserted seven causes of action: (1) negligence (O’Donnell and Reich); (2) negligent infliction of emotional distress (O’Donnell and Reich); (3) intentional infliction of emotional distress (O’Donnell and Reich); (4) invasion of privacy (O’Donnell and Reich); (5) negligent supervision and retention (O’Donnell); (6) tortious act or omission of public employees (O’Donnell and Reich); and (7) vicarious liability of public entity (CHP). Plaintiffs here, unlike the plaintiffs in Catsouras, supra, 181Cal.App.4th 856, did not assert a cause of action for violation of title 42 United States Code section 1983.
Reich filed a demurrer to each of the causes of action against him. O’Donnell thereafter filed a demurrer to every cause of action.
Plaintiffs, O’Donnell and Reich then entered into a stipulation and order for judgment in favor of O’Donnell and Reich. The intention of the parties was to piggy-back onto the appeal in Catsouras. The stipulation recited that the two cases arose out of the same facts, all of the causes of action in Catsouras had been either dismissed or otherwise adjudicated in favor of O’Donnell and Reich and the matter was then on appeal, and the parties desired to join in the Catsouras appeal.
In order for the Mayo and Catsouras appeals to dovetail, the parties noted that the demurrers of O’Donnell and Reich as filed in the Mayo litigation were substantially the same as those filed in the Catsouras litigation. Copies of the written oppositions of the Catsouras plaintiffs, as well as the replies of O’Donnell and Reich filed in response to those oppositions, were attached to the Mayo stipulation and order for judgment and incorporated therein by reference. In addition, the oral arguments for all parties at the demurrer hearings in Catsouras were incorporated by reference into the Mayo stipulation and order.
In conclusion, the parties stipulated “[t]hat the Court may enter Judgment on the Mayo Plaintiffs’ Complaint, in favor of Defendants O’Donnell and Reich, as if the Demurrers on file had been heard by the Court, argued by counsel and granted, consistent with the rulings issued in [the Catsouras litigation], and without prejudice to any rights that the Mayo Plaintiffs may have to appeal therefrom.” Pursuant to the stipulation and order, the court entered a judgment of dismissal as to O’Donnell and Reich.
The CHP then filed a motion for judgment on the pleadings. It argued that judgment should be entered in its favor because there were no individual defendants left in the litigation on whom vicarious liability could be predicated. In addition, plaintiffs and the CHP stipulated for dismissal and for entry of judgment in favor of the CHP.
The stipulation between plaintiffs and the CHP was in similar form to the plaintiffs’ stipulation with O’Donnell and Reich. The stipulation with the CHP recited that the motion for judgment on the pleadings that the CHP had filed in the Mayo litigation was substantially the same as the one it had filed in the Catsouras litigation, a copy of the written opposition of the Catsouras plaintiffs was attached to the stipulation and incorporated therein by reference, and the oral arguments of the parties at the hearing on the motion in the Catsouras litigation were also incorporated therein by reference. The parties then stipulated that judgment be entered in favor of the CHP as if the CHP’s motion for judgment on the pleadings in Mayo “had been heard by the Court, argued by counsel and granted, consistent with the rulings issued in [the Catsouras litigation], and without prejudice to any rights that the Mayo Plaintiffs may have to appeal therefrom.”
The court entered judgment on the pleadings in favor of the CHP. Plaintiffs appeal from both the judgment of dismissal as to O’Donnell and Reich and the judgment on the pleadings in favor of the CHP.
II
DISCUSSION
A. Introduction:
California Rules of Court, rule 8.200(a)(5) provides: “Instead of filing a brief, or as part of its brief, a party may join in or adopt by reference all or part of a brief in the same or a related appeal.” Pursuant to this rule, plaintiffs in the matter before us adopt by reference the appellants’ opening brief filed in Catsouras. The reply briefs filed by O’Donnell, Reich and the CHP are, with certain modifications, substantially the same as the briefs they filed in Catsouras.
We invited the parties to file supplemental letter briefs addressing the application to this case of our opinion in Catsouras, supra, 181Cal.App.4th 856. In their supplemental letter brief, plaintiffs assert that the opinion in Catsouras is directly on point and controlling, inasmuch as the two litigation matters are factually related, and care was taken to ensure that the Mayo judgments were based on essentially the same briefs and arguments as in Catsouras.
B. O’Donnell’s Arguments:
O’Donnell claims that Catsouras, supra, 181Cal.App.4th 856 is not controlling because of material differences in the allegations between the Catsouras and Mayo complaints. O’Donnell correctly notes that the Catsouras complaint alleged that the Catsouras plaintiffs had been unwillingly exposed to the photographs on the Internet-that malicious Internet users had e-mailed them copies of the photographs, some of them accompanied by hateful, taunting messages. (Catsouras, supra, 181Cal.App.4th at p. 865.) The Mayo complaint, however, lacks any allegation that the photographs were e-mailed to plaintiffs, that they were taunted with the photographs, or indeed, that plaintiffs had seen the photographs on the Internet at all. O’Donnell contends that “[t]he allegations in Mayo are completely different from those this Court analyzed in Catsouras, which is therefore largely inapplicable.” We disagree.
The intentional infliction of emotional distress and invasion of privacy allegations in the Mayo complaint are substantially similar in material respects to those in the Catsouras complaint. Moreover, the intentional infliction of emotional distress and invasion of privacy analyses in Catsouras, supra, 181Cal.App.4th 856 do not hinge on the allegation that cyber bullies sent e-mails containing the photographs directly to plaintiffs. Consequently, we reject O’Donnell’s contention that those causes of action must fail in the case before us.
Where the negligence cause of action is concerned, the plaintiffs in Mayo, just as the plaintiffs in Catsouras, alleged that O’Donnell and Reich owed them a duty, O’Donnell and Reich breached that duty, and the plaintiffs suffered harm as a result. O’Donnell’s demurrer in the Mayo litigation was based on his argument that he did not owe plaintiffs a duty, as a matter of law. He stipulated that his demurrer in Mayo was substantially the same as his demurrer in Catsouras. Indeed, we observe that O’Donnell’s topic heading on negligence was identical in each of his two demurrers: “The Negligence-Based Causes of Action Fail[] Because O’Donnell Owes Plaintiffs No Duty As a Matter of Law.” (Underscoring and boldface omitted.) In addition, the written opposition to the demurrer O’Donnell filed in Catsouras, his reply in Catsouras, and the oral arguments on the demurrer in Catsouras, were each incorporated by reference into the stipulation. All this was done so that the parties could quickly obtained the same ruling, based on the same arguments, in the Mayo litigation as in the Catsouras litigation.
As we said in Catsouras, supra, 181Cal.App.4th 856, negligent infliction of emotional distress is not a separate tort. (Id. at pp. 875-876.)
In Catsouras, our focus with respect to the negligence cause of action was exactly the same as the one O’Donnell framed in his demurrer in the Mayo litigation, that is-did he owe the plaintiffs any duty on which a negligence cause of action could be based? The Catsouras decision addressed exactly that question at length. (Catsouras, supra, 181Cal.App.4th at pp. 876-888.) The intention of the parties in entering into the stipulation in the case before us was to obtain in the Mayo litigation the same ruling as in the Catsouras litigation, based on essentially the same pleadings. That has been achieved. Nothing precludes O’Donnell from raising issues of causation or injury on remand.
C. Reich’s Arguments:
Reich takes a completely different tactic. He makes no effort to distinguish the Mayo and Catsouras litigation matters. Rather, he contends that this court’s analysis in Catsouras, supra, 181Cal.App.4th 856 is flawed with respect to the invasion of privacy and negligence causes of action. He requests that we reconsider our analysis.
Reich argues that this court, in Catsouras, supra, 181Cal.App.4th 856, created a new invasion of privacy tort. He also emphasizes that pictures of the dead are found in the media everyday, and says that the efforts of the court to limit the application of the invasion of privacy tort will fail.
In discussing the invasion of privacy cause of action, we specifically stated in Catsouras: “We recognize that there are instances in which matters pertaining to the dead or dying may involve issues of public interest, as in Miller [v. National Broadcasting Co. (1986)]187 Cal.App.3d 1463. [Citation.] The court in Miller assumed that public education about the paramedics’ use of lifesaving techniques would qualify as news. [Citation.] 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.]’ [Citation.] [¶] 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.”’ [Citation.] Put another way, morbid and sensational eavesdropping or gossip ‘serves no legitimate public interest and is not deserving of protection. [Citations.]’ [Citation.]” (Catsouras, supra, 181Cal.App.4th at p. 874.)
This limitation, concerning the freedom of the press in connection with matters of legitimate public interest, is well founded in the law. The alleged acts of Reich and O’Donnell were not taken in furtherance of the freedom of the press. That is a point to be remembered, not a point on which to take issue with Catsouras, supra, 181Cal.App.4th 856.
In addition, Reich says the court erred in relying on a Rowland v. Christian (1968) 69 Cal.2d 108 analysis, with respect to the negligence cause of action. We disagree. The principles enunciated in Rowland v. Christian, supra, 69 Cal.2d 108 are time honored and we see no reason to depart from them.
D. Conclusion:
In Catsouras, supra, 181Cal.App.4th 856, we held that the trial court had erred in sustaining demurrers as to the negligence, intentional infliction of emotional distress, and invasion of privacy causes of action. (Catsouras, supra, 181Cal.App.4th at p. 864.) Inasmuch as that case controls the matter before us, the trial court in the Mayo litigation erred in entering the judgment of dismissal as to O’Donnell and Reich. That judgment must be reversed.
Because the court erred in entering a judgment of dismissal as to O’Donnell and Reich, it also erred in entering judgment on the pleadings in favor of the CHP. Since O’Donnell and Reich remain defendants in the litigation, the vicarious liability of the CHP may yet be shown. (Catsouras, supra, 181Cal.App.4th at p. 865.)
III
DISPOSITION
The judgments are reversed and the matter is remanded for further proceedings consistent with this opinion. Plaintiffs shall recover their costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., ARONSON, J.