Lawyers are frequently accused of being verbose. Thus, in the spirit of simplicity I will answer the question posed in the title of this blog with an unreserved, “No.”
Ellen Catherine “Kay” Rozario, age 80, was allegedly injured on March 20, 2014 when RHOBH cast member Kim Richards’ pit bull Kingsley bit her while she was an invited guest at the former child star’s home. Kay, a longtime family friend, claimed all of a sudden and without provocation, Kingsley attacked her.
The complaint in Ellen Catherine Rozario v. Kim Richards et al., filed in federal court in Los Angeles on December 12, 2014 (case number 2:14-cv-09540) asserts the dog attack “caused severe injuries to Plaintiff’s left hand, arm and back,” triggering the plaintiff to “bleed profusely from her wounds.” Plaintiff avers she “suffers pain, disfigurement, emotional pain and suffering, anxiety and other damages to this day.”
During the past few years, extensive attention has been devoted to attacks by the American Staffordshire Terrier — a breed commonly known as the “pit bull.” Kim is likely on the hook for injuries sustained by Kay since California’s dog bite statute makes the owner of a dog strictly liable for any dog bite from the moment that ownership begins, provided the victim was not trespassing, provoking the dog, or performing a paid service involving the dog.
But Kay is hedging her bets by naming the network’s producers in her suit. It is plaintiff’s contention Evolution Film & Tape, Inc. (“Evolution”), the name for Bravo producers, is at fault. Kay claims Evolution had prior knowledge Kingsley was dangerous and was therefore under a duty to warn the public of the animal’s ferocity. Plaintiff’s complaint alleges a single cause of action against Evolution “for fraudulent concealment and conspiracy to fraudulently conceal.”
Under California Civil Code § 1710, “fraud may consist of a suppression of a material fact in circumstances under which the defendant has a legal duty of disclosure.” As a matter of law, it is difficult for Kay to establish Evolution owed her a legal duty to disclose because she does not assert any relationship or transaction with Evolution that would give rise to such a duty. Consequently, it was not surprising Evolution moved to dismiss the complaint on January 19, 2015, noting Defendant Richards was not acting in concert and conspiracy with, at the request of and/or for the benefit of, Defendant Evolution. Evolution stated on pg. 6 of its Motion to Dismiss: “The only ‘relationship’ between Evolution and Plaintiff is that they are both members of the general public.”
According to the plaintiff, a producer of a television show owes a duty to every viewer of the program to disclose all known facts about anything depicted on the show, and would be subject to suit by any such viewer. It sounds far-fetched (pun-intended), but that is fundamentally what is alleged in plaintiff’s complaint.
Conspiracy imposes liability on persons who, although not actually committing a tort themselves share with the immediate tortfeasor (Kim Richards) a common plan or design in its perpetration. Evolution argues it had no duty to disclose anything to plaintiff and in the absence of any such duty to disclose, Evolution could not “conspire” to conceal, even if its alleged co-conspirator had such a duty.
In short, Evolution claims there is no blood on their hands since they bore no responsibility over Richards’ handling of the dog and they did not owe a duty to disclose to the general public anything concerning the dog’s viciousness. Do you think these reality show producers committed a primetime tort?
Sensing an uphill legal battle over the fraudulent concealment and conspiracy to fraudulently conceal claim, plaintiff filed an amended complaint on February 9, 2015. In it, plaintiff attempted to show that the intentional misrepresentations made by Evolution in relevant episodes in which the dog was being trained to correct the dog’s aggression, caused plaintiff to not be concerned about the dog and to agree to spend the night at Richards’ residence where she was subsequently attacked.
“If Plaintiff would have been aware Defendant Richards and Defendant Evolution had intentionally misrepresented the fact that the dog was vicious and dangerous, Plaintiff, her daughter and granddaughter would not have been guests or overnight guests at Defendant Richards’ residence with the dog present and loose in the house,” see ¶113 of plaintiff’s amended complaint.
Plaintiff charges the broadcasts of the RHOBH television shows premiering on November 11, 2013 and March 17, 2014, among other relevant episodes, caused plaintiff, through her daughter Lianne Harris, to not be concerned at all about the dog. “Defendants together misrepresented to the public the dangerousness and viciousness of the dog and falsely misled the public as to the reason why a trainer was hired for the dog,” see ¶19 of plaintiff’s amended complaint.
Generally, to prove a prima facie case of intentional misrepresentation under California law, the plaintiff must show that:
(1) The defendant made a material misrepresentation;
(2) The defendant had knowledge of the misrepresentation;
(3) The defendant intended for the plaintiff to rely on his/her misrepresentation;
(4) There was actual and justifiable reliance on the part of the plaintiff; and
(5) There were damages sustained by the plaintiff.
Jeremy Bentham, the British jurist and social reformer once commented, “The power of the lawyer is in the uncertainty of the law.” Here there is no ambiguity for which the finest jurist could spin gold out of straw. It is unlikely plaintiff can prove element number one above, let alone elements two through four. Did Bravo producers make a material misrepresentation regarding Kingsley’s gentleness that it intended for the plaintiff to rely on? Doubtful. Was it justifiable for Kay to trust said misrepresentation displayed on television when she came into contact with the dog? Nope. The plaintiff asks the jury (Kay demanded a jury trial on all issues so triable) to make giant logical leaps.
On February 11, Judge Andre Birotte, Jr. ruled that the case would continue, denying Defendant’s Motion to Dismiss in light of the newly-filed complaint. PacerMonitor.com shows the following notation being made:
Order DENYING Defendant’s Motion to Dismiss as MOOT by Judge Andre Birotte, Jr: In light of the newly-filed FAC, Defendant’s Motion to Dismiss the now-inoperative Complaint is MOOT, and the Court DENIES Defendant’s Motion to Dismiss the original Complaint. (Dkt. No.18 .) Pursuant to FRCP 78(b) and Local Rule 7-15, the Court finds this matter appropriate for determination without oral argument, and the hearing previously scheduled for March 16, 2015 at 10:00 AM., is hereby VACATED. (jp)
My forest through the trees analysis is this: Plaintiff may be trying to hang the wrong defendant for tortious acts committed by another because Evolution has deeper pockets. This type of litigation strategy occurs all the time, but it doesn’t make it any more palatable or savory. Moreover, should the trier of fact find a producer of a television show owes a duty to every viewer of the program to disclose all known facts about anything depicted on the show, such sweeping proclamation would undoubtedly change the way production companies do business.
I am excited to hear AATT poster’s thoughts and urge you to grab your gavel, join the conversation, and be as loquacious as you like.