S.C. Allows Suit Against A&E by Man in AIDS Documentary

Thursday, July 30, 2009

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S.C. Allows Suit Against A&E by Man in AIDS Documentary

By KENNETH OFGANG, Staff Writer

The state Supreme Court yesterday declined to review a Fourth District Court of Appeal ruling that allows a man who claims that he was falsely depicted as an intravenous drug user and an HIV/AIDS sufferer in a television documentary to proceed with his suit against the network that aired it.

The justices, at their weekly conference in San Francisco, voted 6-0 to leave standing the ruling of Div. Three in Whitaker v A & E Television Networks, G040880, decided May 18 in an unpublished opinion. Justice Carol Corrigan was absent and did not participate.

Whitaker alleges that he was defamed and had his privacy invaded when he was shown in an AIDS-related segment of A&E’s “The History of Sex,” which was shown on the cable network and released on DVD.

‘Deadly Toll’

The segment in question addresses the HIV/AIDS epidemic, with a narrator stating that “‘AIDS had exacted a deadly toll on gay men and [intravenous] drug users as well as hundreds of thousands of heterosexuals in Africa and Haiti.” Whitaker alleged in his complaint that he is shown on the screen just before the narrator says “users” and is seen in profile on the street shaking a cup and nodding at people walking by.

Just before and after Whitaker’s time on the screen, the documentary shows what appears to be a gay male couple walking together.

A&E filed an anti-SLAPP motion, arguing that the suit should be stricken because the program deals with an issue of public interest. Orange Superior Court Judge Gregory Munoz denied the motion, ruling that that anti-SLAPP statute did not apply to Whitaker because he had no relationship to that issue.

The Court of Appeal, in an opinion by Justice Kathleen O’Leary, agreed.

‘False Portrayal’

While HIV/AIDS is a matter of public interest, she wrote, Whitaker was not suing because the network addressed the subject, but rather because of what he alleges to be “the assertedly false portrayal of Whitaker as an intravenous drug user and HIV/AIDS sufferer.” The issue of whether Whitaker is either of those would only be a matter of public interest if he were a public figure, O’Leary said.

In other conference action, the justices:

•Rejected a Contra Costa County resident’s attempt to gain a spot on the ballot for the Sept. 1 congressional special election without paying a filing fee.

The justices voted 6-0 to deny Jeffrey Gerlach’s mandate petition. Gerlach, who lives in Alamo, has announced as an independent candidate for the seat vacated by Democrat Ellen Tauscher, who was appointed by President Obama as undersecretary of state. Lt. Gov. John Garamendi, state Sen. Mark DeSaulnier, and Assemblywoman Joan Buchanan are among those running in the district, which is heavily Democratic in registration.

Early Deadline

Gerlach argued that his rights were violated by an early deadline for the filing of signatures in lieu of the $1,700 filing fee. The election was called July 3, but because of the condensed special election calendar, the statutory deadline for filing 3,000 signatures instead of paying the fee was just three days later.

Gerlach sought to require election officials to accept the signatures he filed, even though less than the statutory requirement, and to place his name on the ballot.

•Agreed to review several rulings in criminal cases.

In People v. Ary (2009) 173 Cal.App.4th 80, decided April 20, the First District’s Div. Two ruled, 2-1, that when an appellate court reverses a conviction and orders a retrospective hearing on whether the defendant was competent at time of trial, the burden of proof is on the prosecution to prove the defendant was not competent.

Mentally Disordered Offender

In Lopez v. Superior Court (2009) 173 Cal.App.4th 266, the Fourth District’s Div. Two ruled on April 23 that a mentally disordered offender could not argue, in response to a petition to extend his commitment, that he should never have been classified as an MDO in the first place.

In In re Molina, B208705, decided in an unpublished opinion on April 16, this district’s Div. Six affirmed a San Luis Obispo Superior Court judge’s ruling that the Board of Parole Hearings lacked substantial evidence to support its denial of parole to a man imprisoned more than 22 years for the second-degree murder of a man with whom he had quarreled at work.

In In re Prather, B211805, this district’s Div. Five granted habeas corpus relief to an inmate convicted of a drug-related murder in Long Beach in 1982, finding that there was no evidence to support the denial of parole. The case was decided in an unpublished opinion April 28.