Since 1987, Evolution Film & Tape, Inc. (“Evolution”) has provided commercially successful non-fiction programming. They were pioneers in a nascent reality TV world before the medium became hip and highly lucrative. Current programs they produce include Bravo’s hits “The Real Housewives of Beverly Hills,” “The Real Housewives of Orange County,” and “Vanderpump Rules,” along with the new sensation “Botched” for E!.
Today, Evolution is breathing a sigh of relief as it has formally been removed from Ellen Catherine Rozario’s (“Kay”) lawsuit. In a decision dated April 22, 2015, Judge André Birotte, Jr. GRANTED Defendant Evolution’s Motion to Dismiss WITH PREJUDICE in the matter of Ellen Catherine Rozario v. Kim Richard et al. (2:14-cv-09540). A court case that is dismissed “with prejudice” means that it is discharged permanently and plaintiff is barred from bringing an action on the same claim.
Under Federal Rule of Civil Procedure (“Rule) 12(b)(6), dismissal is proper where there is either a lack of clear legal theory or the absence of sufficient facts alleged. The writing was on the wall. It did not make logical or legal sense for producers of The Real Housewives of Beverly Hills (“RHOBH”) to be on the hook for damages sustained as the result of an attack by Kim Richards’s dog, Kingsley. But what we could not predict was the way in which the judiciary would so swiftly scrap Kay’s case against Evolution.
On a motion to dismiss, the cards are stacked in favor of the nonmoving party since allegations of fact are taken as true and construed in the light most favorable to the nonmoving party (Kay). Newdow v. Lefevre, 598 F.3d 638, 642 (9th Cir. 2010), cert. denied, 131 S. Ct. 1612 (2011).
However, a Rule 12(b)(6) motion tests the legal sufficiency of the claims in the complaint. It demands more than a bare, the-defendant-unlawfully-harmed-me accusation. Here, Plaintiff asserted Evolution was liable under two legal theories: intentional misrepresentation and conspiracy to commit intentional misrepresentation.
All About the Tea posters should take their betting acumen to Vegas. In previous blog posts, AATT posters deduced that Kay could not prove she justifiably relied on Evolution’s misrepresentation as to Kingsley’s alleged “sweet and cuddly” behavior on the RHOBH. The Court agreed. It found Plaintiff’s intentional misrepresentation claim to be unsupportable, a.k.a. a loser. The Court comes right out and says it understands justifiable reliance is normally a question of fact but it becomes a matter of law when “reasonable minds can come to only one conclusion.” See pg. 6 of the Order.
Essentially this means sensible minds can only conclude that Evolution did not misrepresent Kingsley’s temperament. In a noteworthy footnote on pg. 10 of the April 22, 2015 Order, the Court dismissed Plaintiff’s claim that the show represented Kingsley as “playful and loving.” The Court observed, “the RHOBH depictions Plaintiff points to actually display an aggressive dog … Plaintiff’s complaint focuses on Ms. Richards’s statements during the episode, instead of focusing on the dog’s actions.”
The Court questions how Kay can assert a claim for misrepresentation in painting the dog as “playful and loving” when the episode cited in the complaint shows the dog attacking someone. The Court averred on pg. 10, “The trainer eventually subdues the dog’s charge, but it is evident that the dog has the ability to exhibit aggressive behavior.” We agree! Plaintiff’s confidence in Bravo’s “cuddly” depiction of the dog was severely misplaced.
Plaintiff cannot hold the production company liable for damages stemming from a situation conveyed on the show because the facts do not suggest Evolution intended or had reason to expect that the substance of the episode would be repeated or its contents communicated to someone like Kay, and that it would influence her conduct around the dog.
Here, Plaintiff never saw the RHOBH episode she references or any other episode for that matter. There were no facts in the complaint that Plaintiff’s daughter, who apparently watched the RHOBH episode at issue, even said anything to her about any particular episode. Judge Birotte explained on pg. 2 of the Order, “Plaintiff’s daughter did not make any affirmative statements to Plaintiff about the dog’s behavior.”
Kay “must plead that … she actually relied on the misrepresentation” in the RHOBH episode. See Mirkin v. Wasserman, 5 Cal. 4th 1082, 1096, 23 Cal. Rptr. 2d 101, 858 P.2d 568 (Cal. 1993). The Court disagreed with Kay’s “justifiable reliance” theory of the case because no one overtly or affirmatively communicated these supposed RHOBH representations as to Kingsley’s lovability to her. Even if the show was the reason for Kay’s daughter having a comfort level with the dog, the daughter’s reliance cannot be attributed to Kay.
Then, Kay takes the position that she indirectly relied on her daughter’s lack of concern as an indicator to believe that the dog was not dangerous. She contends that it was reasonable for her to trust her daughter’s unspoken conduct. The Court was not buying this fallacious legal argument. Instead, it held on pg. 5, “the complaint falls short in alleging a viable claim for intentional misrepresentation.”
Turning now to Plaintiff’s conspiracy claim, in a civil conspiracy, a coconspirator (Evolution) effectively adopts, as his or her own, the torts of other coconspirators (Kim) within the scope of the conspiracy. Therefore, if Kim committed a tort in furtherance of a conspiracy between her and Evolution, Evolution would be responsible for damages even though it was Kim’s negligence that caused Kay’s injuries.
Conspiracy theories get a bad rap, sometimes fairly, for being more shock than substance. Remember, Plaintiff here claimed Evolution and Kim jointly engaged in a scheme to misrepresent Kingsley as sweet and cuddly to a class of people that not only watch RHOBH but also visit Kim’s home. The Court rejected this argument. “This inconceivable conjecture … cannot support a claim for civil conspiracy.” See pg. 9 of Order. Take note Judge Birotte labeled Plaintiff’s conspiracy claim “inconceivable,” meaning it was not even close.
The Order described that Kim did not act as Evolution’s agent at the time of the incident. If an employee’s (Kim) act that causes injury to another is purely personal in nature, it is not related to the employer’s (Evolution) business. Basically, Kim was not doing anything connected to her employment at Bravo when Kay was bitten and thus Evolution should be held liable for Kim’s conduct.
The complaint specifically stated Plaintiff and her daughter visited Kim as overnight guests, and they both had a pre-existing relationship with Kim. Neither the visit nor the dog bite occurred during the taping of the show. In fact, there are no allegations of RHOBH crew members being present at any point during the visit. See pg. 8 of Order. Aside from referring to Kim as Evolution’s “agent” and concluding that Kim furthered a scheme to misrepresent Kingsley, Plaintiff’s conclusory allegations do nothing more than assert naked claims devoid of facts.
Grab your gavel, join the conversation, and let us know what you think about the decision to grant Evolution’s Motion to Dismiss.
Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.