Friday, November 23, 2001
Court of Appeal Orders JNOV in Dispute Over ‘Baywatch’ Script
By ROBERT GREENE, Staff Writer
A would-be scriptwriter for “Baywatch,” the most popular television program in the world, was not entitled to damages arising from what she claimed was a script contract made with the wife of one of the show’s executive producers, this district’s Court of Appeal ruled Wednesday.
A Los Angeles Superior Court jury had ruled differently, awarding $25,000 to plaintiff Boice Nicholls after Nicholls alleged that Michele Berk held herself out as having authority to contract for scripts for Baywatch Production Company—and that the company did nothing to disabuse Nicholls of that notion. Judge David D. Perez denied the company’s motion for a judgment notwithstanding the verdict.
But Div. Seven, in an unpublished opinion, ruled that Baywatch should have been granted the JNOV.
Paul Boland, who wrote for the court on assignment from the Los Angeles Superior Court but was sworn in Wednesday as a justice on Div. Eight, said the fact that Berk had appeared in the series, had sold the show two scripts of her own and was married to one of its executives did not constitute substantial evidence that that she was an agent for the company.
Besides, Boland wrote, the trial was conducted on the theory that Berk was the company’s ostensible agent, rendering Berk’s own actions or statements legally immaterial and requiring Nicholls to show instead that the company, as principal, acquiesced to any assertion that Berk could act on its behalf. There was no such evidence, Boland said.
Boland was joined by Justice Fred Woods.
In dissent, Justice Earl Johnson Jr. said the extraordinarily casual structure of the Baywatch organization produced plenty of opportunities for a reasonable jury to find that an executive producer’s wife could contract for scripts.
The way Nicholls got involved with the company in the first place was a prime example of that casual approach, Johnson said. She visited the set because her husband was the show’s caterer and because the star, David Hasselhoff, knew that she had an Arabian horse breeding ranch.
At Hasselhoff’s request, Nicholls brought a horse so that the star could pose with it in the opening montage. She came back the next week, with horses and Arabian costumes, at the request of a director and a cameraman. They also asked her to find someone to play a sheik—and she talked her veterinarian into doing it. She also contracted for more horses from other ranches when the company needed it.
The Baywatch company “conferred this authority on Nicholls even though her only relationship to the corporation was as the spouse of the caterer the corporation employed to supply meals on the set,” Johnson noted.
“If [the company] was willing to give her, merely the caterer’s wife, the authority to contract with outsiders on the company’s behalf, could Nicholls reasonably doubt the authority of a [company] co-producer’s wife? Not only a wife but one who was constantly present on the set and for many years had been involved in the series as both a writer and an actress.”
But to Johnson the crux of the problem with the majority opinion was that it did not show sufficient deference to the jury, or to the judge who was present for the testimony and argument.
“When a party loses a jury verdict and asks a court for a judgment notwithstanding the verdict, it is requesting the judge to act as a thirteenth juror and veto the credibility judgments and inferences the original jurors made,” Johnson said. “In exercising this extraordinary power the trial court at least has the advantage of having heard all the evidence at the same time the jurors did. When the trial court denies a JNOV motion and the losing party appeals that decision, it is asking the appellate court to act as a fourteenth juror, second-guessing both the twelve members of the jury and also the trial judge. But we are compelled to do so without hearing or seeing the witnesses.”
Agency, Johnson said, is a question of fact for the jury.
Nicholls brought her suit after she had submitted a script at the request, she said, of Berk, with whom she had spoken at a party and later many times on the telephone. The script was rejected, but Nicholls later saw a “Baywatch” episode that she believed was based on the script and sent the company a bill.
The company denied that Nicholls’ script was used.
The case is Nicholls v. Baywatch Production Company, B130952.
Copyright 2001, Metropolitan News Company