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California appellate court reverses summary judgment in favor of Real Housewife of Orange County Gretchen Rossi against "friend" Jay Photoglou on his defamation-related claims, finding that standard industry release he signed during filming of reality show did not exculpate Rossi from liability for any intentional conduct.
Gretchen Rossi, a television personality cast on the reality show The Real Housewives of Orange County (RHOC), sued her former friend Jay Photoglou alleging that he assaulted her on several occasions, stalked her, threatened her and her dogs with physical harm, stole personal property including nude and compromising photographs of her, and intentionally interfered with product endorsement and appearance deals by releasing the stolen photographs to various websites and media outlets.
Photoglou denied the allegations and asserted his own claims against Rossi for libel, slander, and false light, arising from Rossi’s statements concerning Photoglou during a January 2009 “reunion episode” of RHOC and in interviews following the reunion show. Photoglou had told another RHOC cast member, Tamra Barney, that he and Rossi were dating exclusively, although Rossi was engaged to a wealthy, older businessman during the show. During the reunion show, Barney questioned Rossi about Photoglou – referred to on air only by his first name. Rossi denied that she dated Photoglou and claimed that Photoglou was a stalker who lied because Rossi had rejected his sexual advances. Before the reunion episode aired, Photoglou reached out to websites and tabloids to tell his side of the story and distributed pictures of him and Rossi, although he denied sending nude or compromising photographs. After receiving Photoglou’s story and the pictures, many companies cancelled contracts and broke off negotiations with Rossi.
The trial court granted Rossi summary judgment on Photoglou’s claims relating to Rossi’s statements during the reunion episode, finding that his claims were barred by an “Appearance Release” he signed during the filming of an earlier episode of RHOC, but left for trial Photoglou’s claims relating to Rossi’s statements in interviews and on blog sites after the reunion episode. A jury later entered a general verdict in Rossi’s favor, awarding Rossi $500,000 in compensatory damages and $23,250 in punitive damages, and awarding nothing to Photoglou on his remaining claims.
On appeal, the court reversed the trial court’s summary judgment decision but otherwise affirmed the verdict. California Civil Code § 1668 renders void exculpatory provisions in contracts that release one from liability for his or her own fraud or willful misconduct. Thus, although Photoglou signed the Appearance Release, the court found that California law prohibited a release that would exempt Rossi from liability for libel, slander, or false light, each of which is an intentional tort. Rossi argued that invalidating the release would cause the entertainment industry to “grind to a halt,” but the court noted that standard industry releases are valid to the extent that they allow producers to use someone’s likeness in producing and promoting a show but do not allow persons appearing on the show to defame others with impunity.
Despite the reversal of the trial court’s summary judgment decision, the appellate court did not disturb the jury verdict, finding that Rossi’s claims against Photoglou were adequately supported by substantial evidence. In addition, the jury could have considered several defenses other than the Appearance Release in finding Rossi not liable to Photoglou. Finally, because Photoglou had made himself a limited public figure by participating in the media controversy, he was required to show actual malice on the part of Rossi by clear and convincing evidence, which Photoglou failed to do.