Dr. Phil and his producers are headed to court over a lawsuit filed by two women who agreed to appear on the show in the hopes of getting some real (albeit TV produced) therapy. What they got, they allege, was a huge shock and false imprisonment, according to The Hollywood Reporter. The lower court found for the defendants on the freedom of speech issue, ruling that From the opinion:
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.
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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.
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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 anti-SLAPP 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.
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“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 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.
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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 psychologist-patient 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.
Read the entire opinion here.