Thursday, October 2, 2003
S.C. Rejects Doctor’s Bid to Revive Claim for Damages From Broadcast
By a MetNews Staff Writer
The California Supreme Court yesterday turned down a Los Angeles physician’s attempt to sue a local television station for damages that he claims resulted from its surreptitious taping of conversations with a prospective patient.
At the court’s weekly conference, only Justice Joyce L. Kennard voted to review the ruling of this district’s Court of Appeal, Div. Four, in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156.
The appellate panel held that Dr. Fred L. Lieberman could sue KCOP for statutory damages of as little as $5,000 for violating a state law that prohibits recording of “confidential” communications unless all parties consent, but that he has no claim under the statute for damages resulting from the subsequent airing of the tape.
Lieberman, who had a general practice near Third Street and Alvarado, filed suit in May of last year. He claimed that about a year earlier, he saw two patients who were accompanied by persons who were not introduced to him, but who in each case appeared to be the “significant other” of the patient.
Lieberman claimed the companions secretly made audio and video recordings of the examinations, which wound up being broadcast as part of a segment called “Caught in the Act,” in which Lieberman was accused of improperly prescribing the painkiller Vicodin.
After the broadcast appeared, the doctor alleged, he was forced to resign from an “on-call” association, costing him 500 HMO patients; pharmacies refused to fill his prescriptions; lawyers would not hire him as a consultant or expert witness; his malpractice insurance was not renewed; he was denied reappointment to the medical staff at St. Vincent Medical Center; and California Medical Board investigators raided his clinic in full view of patients.
Those events, and related stress, caused him to allow his license to lapse and to close his practice, Lieberman claimed.
He sued for violation of Penal Code Sec. 632 and sought treble damages under Sec. 637.2.
KCOP appealed after Los Angeles Superior Court Judge Edward Ferns denied its anti-SLAPP motion. The appellate panel, in an opinion by Justice J. Gary Hastings, agreed that Lieberman would probably prevail under the statutes, which call for damages of $5,000 or three times the “actual damages.”
But Hastings added the caveat that the actual damages to which the statute refers are those that relate to the surreptitious recording, and not those resulting from publication.
Any damages the plaintiff suffered “when the KCOP broadcast disclosed that Lieberman was involved in illegal activity,” Hastings wrote, were a product of that disclosure and “did not result from the surreptitious recordings.”
KCOP’s lawyer, Gary L. Bostwick of Davis Wright Tremaine, said the high court was correct in not taking the case. “This was not an important question of law,” he told the MetNews.
Lawmakers, he said, would not have included a statutory damage provision in the law if they intended to provide a broad tort remedy. By putting in a $5,000 minimum, Bostwick said, the Legislature was indicating it “thought that it might be hard to figure out what actual damages were” for an illegal recording.
Lieberman’s attorney, Zev Brooks of Los Alamitos, did not return a phone call yesterday. At the time of the Court of Appeal decision, he said it was unfair to allow the news media to record a person’s conversations illegally, use the tape to ruin a person’s career, and then walk away paying only a few thousand dollars in damages.
In other action at yesterday’s conference, justices agreed to hear a dispute over whether charter cities are exempt from state law requiring that prevailing wages be paid on public works projects. This district’s Div. Seven ruled that they are not, siding with the Davis administration and construction unions.
All seven of the high court’s justices voted to grant the City of Long Beach’s petition for review in City of Long Beach v. Department of Industrial Relations (2003) 110 Cal.App.4th 636. Forty-four other cities had joined in an amicus brief supporting Long Beach in the Court of Appeal, and the League of California cities had requested depublication of the Div. Seven ruling.
Long Beach argued that its participation in the construction of a new animal shelter was a “municipal affair” of a charter city and thus exempt from general state laws.
But Justice Earl Johnson Jr., writing for the Court of Appeal, said construction activities conducted by charter cities are not necessarily “municipal” in character and that payment of prevailing wages is a matter of statewide concern.
He cited findings by the Legislature that payment of prevailing wages is necessary to attract skilled workers and assure highest-quality construction, and to maintain the “wage base” in the community where a project is being built.
“Clearly,” Johnson wrote, “these two main purposes of the prevailing wage law—ensuring a supply of skilled workers and protecting area wage standards—respond to statewide concerns, not merely local interests.”
The case was argued in the Court of Appeal by Staff Counsel Anthony Mischel for the DIR, Scott A. Kronland of Altshuler, Berzon, Nussbaum, Rubin & Demain for The State Building and Construction Trades Council, and Principal Deputy City Attorney Daniel S. Murphy for Long Beach.
Copyright 2003, Metropolitan News Company