Legal Writing Sample of Cesar Alvarez This is an excerpt of a predictive memo written as a law school class assignment.

The memo is available in its entirety upon request.

ISSUE Can Joe Moody (Moody) bring a valid claim against KGGB (The Bridge) and its Disc Jockey (DJ) for the tort of intentional infliction of emotional distress where Moody had a paid membership with the Bridge which he knew would potentially expose him to pranks, and where a Bridge DJ audio-taped and later broadcast a consensual interview with Moody, conducted in public on his driveway before several neighbors, with the intent of playing a practical joke on him, and where Moody volunteered embarrassing details about his private life without prompting from the DJ? BRIEF ANSWER A court is unlikely to find Moodys evidence sufficient to sustain a claim of intentional infliction of emotional distress. Moodys case offers limited support for only two of the requisite four factors for establishing a valid claim for this tort: (1) the conduct of the DJ was not outrageous because Moody participated voluntarily and in a public place; (2) it will be difficult for Moody to show that the Bridge intended or recklessly disregarded the possibility of causing emotional distress by broadcasting the spoof because the DJs were renowned for outlandish pranks on listeners who registered and knew of the potential for public ridicule, and Moody never asked the Bridge to desist; (3) Moody can prove that he suffered some physical symptoms of emotional distress, but the distress was neither substantial nor enduring; (4) Moodys gullibility for a celebrated pranksters theatrics was not reasonable, and his own unprompted, emotional confessions, not the Bridges conduct, were the actual and proximate cause of the humiliation and resulting emotional distress that he suffered. FACTS When he registered to become a Golden Gate Bridge-head, Joe Moody paid a $100 annual fee to qualify for contests, discounted concert tickets, on-air birthday announcements and other benefits. Members also faced possible participation in one of the Bridge DJs legendarily mischievous pranks. Unemployed since a layoff, Moody was alone at home the day that DJs from the Bridge knocked on his door. Moody approached the driveway where he saw the KGGB van and morning DJ Bill Gate standing with several neighbors. When Gate announced that Moody had just won a million dollars in KGGBs annual Summer Bridge-Fest Sweepstakes, Bridge crewmen presented Moody with a large facsimile check

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and a bottle of champagne. Though at first Moody suspected that Gate was joking, the DJ assured him repeatedly that the winnings were real. Overcome with emotion, Moody launched into a personal confession of his lifes woes -- trouble with money, a shaky relationship and a dump of an apartment -and expressed relief that this windfall would help lift him out of the doldrums. After Moodys effusion, the DJs revealed that it had all been a hoax, then sped off in their van with much laughter. For the next two weeks, the Bridge played a recording of Moodys outburst every morning, and during this time Moody received several upsetting phone calls from strangers and acquaintances mocking him about the radio stunt. Subsequently, Moody claims he experienced headaches and nosebleeds and suffered extreme nervous tension which led him to seek the help of a psychiatrist. Due to facts Moody divulged in the interview, disputes erupted between Moody and his girlfriend as well as his landlord, resulting in the loss of both his relationship and his residence. DISCUSSION The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. Fletcher v. Western Natl Life Ins. Co., 10 Cal. App. 3d 376, 381 (1970). Outrageous Conduct As tasteless and sophomoric as it may have been, the Bridge DJs prank and its subsequent broadcast fall well short of the lofty threshold the court has advanced for satisfying the first and most crucial element in the test for this tort, outrageousness. Outrageous conduct must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. KOVR-TV v. Super. Ct., 31 Cal. App. 4th 1023, 1024 (1995). Generally, conduct will be found to be actionable where the "recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, 'Outrageous!' " Id. at 1028. The standard for judging outrageous conduct does not provide a 'bright line' rigidly separating that which is actionable from that which is not. Id. Courts must employ a case-by-case appraisal of conduct filtered through the prism of the appraiser's values, sensitivity threshold, and standards of civility. Id.

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Intrusion upon the sanctity of the home has provided perhaps the brightest line in the courts sketch of the contours of outrageous conduct. In KOVR-TV v. Super. Ct., a television reporter acted outrageously when he intruded upon a private home while no adults were present to interview three minors. KOVR-TV., 31 Cal. App. 4th 1023. Without their parents knowledge or permission, the reporter told the children that their neighbors and playmates had been murdered only hours before. Due in large part to the fact that the minors were home alone at the time of the interview, the court found that sufficient evidence of outrageous conduct existed for a jury to decide that the reporter and the television news company had potentially inflicted emotional distress on the children. Id. at 1029. In Miller v. National Broadcast Co., Inc., a television crews intrusion into a home at the most private of moments, the verge of death, drew the courts ire. Miller v. National Broadcast Co., Inc., 187 Cal. App. 3d 1463 (1986). With her husband fighting unsuccessfully for his life, the plaintiff remained unaware of the TV crews invasion until she randomly saw a broadcast several weeks later. Id. at 1489. Tellingly, the court did not permit the decedents daughter to make a claim against the TV station; the court said she could not prove that the TV crew caused her emotional distress since she was not home at the time they intruded. Id. The court did not consider whether the daughter was within the zone of privacy because she saw the television broadcast. Id. Claims of outrageous conduct that allege an invasion of privacy but describe behavior that occurred in public generally have failed to sway the court. As the courts have reiterated, there is little expectation of privacy in public places and making recordings of individuals in public is in itself neither outrageous nor invasive. In Wilkins v. National Broad. Co., Inc., the court held that the act of filming a business lunch on the outdoor patio of a public restaurant was not an invasion of the plaintiff's privacy as there was no objective expectation of privacy in such a public place. Wilkins v. National Broadcast Co., Inc., 71 Cal. App. 4th 1066 (1997). Employees of SimTel were secretly videotaped while they conducted a business meeting with NBC executives on a restaurant patio in the presence of waiters. Because the presentation was not secret, and because no audio record of the meeting was made, the court found that NBC did not violate the SimTel groups privacy. The court summarized: There was no entry by NBC into their homes, or even their offices. Nor did NBC intrude into the personal lives, intimate relationships, or any other private affairs. There was no intrusion into a private place, conversation or matter. Id. at 1069. Similarly in Salazar v. Golden State Warriors, the court found no outrageous conduct associated with videotaping an individual in public. Salazar v. Golden State Warriors, 2000 WL 246586 (N.D. Cal.

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2000). The Golden State Warriors basketball team had hired a private detective to investigate one of its employees, the equipment manager, who had been suspected of drug use. Id. at *3. The manager was videotaped on his driveway with guests and in a parking lot outside a private wedding. The court ruled that it was proper for an employer to use video surveillance to verify that an employee is compliant with the terms of his contract. Id. at *4. The court explained that to state a claim "the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding ... the plaintiff." Id. There is no intrusion into a private place, the court explained, "when the plaintiff has merely been observed, or even photographed or recorded, in a public place." Id. The court found that the defendant had a work-related motive for its investigation and therefore had a legitimate motive to use a video camera in its investigation of alleged illegal conduct by its employees. Id. at *5. Further, the intrusiveness of the recording was abated by the absence of audio capabilities. Id. Courts have given great weight to the plaintiffs general vulnerability and to any specific susceptibility to distress whether due to age, infirmity, relationship with the source of distress, or dire circumstances. Whether the defendant is aware of the sensitivity, or should have been, is also a factor. In KOVR-TV, the court was concerned about the reporters delivery of information with potentially devastating potential, especially to children of such tender years. KOVR-TV, 31 Cal. App. 4th at 1028. A personal relationship between parties in the suit can be mitigating factor in deciding what is outrageous, and the court has used such evidence often to support but sometimes to undermine a claim. The intrusion in Miller galled the court in part because of the plaintiffs special relationship with the decedent; the court found it outrageous that the journalists intruded upon a wife at the moment of her husbands death. Miller, 187 Cal. App. 3d at 1489. In Cochran v. Cochran, the court weighed the deteriorated relationship between two separating lovers in deciding whether a vague death threat constituted outrageous conduct. Cochran v. Cochran, 65 Cal. App. 4th 488 (1997). But in this case, because the insult was made in the context of a bitter breakup by emotionally aggrieved parties, the court did not find the bad joke outrageous. Id. at 491. The court explained: In short, the parties to an intimate relationship gone bad were now feuding. Those feuds are often accompanied by an exchange of hostile unpleasantries which are intended to sting whoever sits at the delivery end. While the pain inflicted might be real, the tort of intentional infliction of emotional distress was never intended to remove all such barbs. Id. at 491.

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Another category of concern for the court on the issue of outrageousness pertains to professional standards for certain types of businesses that serve the general public. Some professions must maintain a high standard of ethical behavior because of their importance to society, and their workers are not immune from liability if they commit a tort while serving the public good. The court found potentially outrageous the KOVR reporters attempt to evoke an anguished response from children for the purpose of creating sensational footage, instead of legitimate news collection. KOVR-TV, 31 Cal. App. 4th 1023, 1028. The reporter informed the children of their playmates murders, the court observed, in the hope it would elicit an emotional reaction that would be newsworthy, e.g., suitable to redeem a promise of film at eleven. Id. The court observed that a jury could find that a television reporter who attempts deliberately to manipulate the emotions of young children for some perceived journalistic advantage has engaged in [outrageous] conduct. Id. at 1029. In Miller, the court castigated the television stations insensitive attitude for rebroadcasting the video even after the decedents daughter asked them to stop. Miller, 187 Cal. App. 3d 1463, 1488. Personal security in a society saturated daily with publicity about its members requires protection not only from governmental intrusion, but some basic bulwark of defense against private commercial enterprises which derive profits from gathering and disseminating information. Id. No protections the law extends for news reporting specify "that the press and its representatives are immune from liability for crimes and torts committed in news gathering activities simply because the ultimate goal is to obtain publishable material." Id. Moody offers weak evidence that his privacy was invaded, and his situation differs significantly from the cases previously discussed. As in Miller and KOVR-TV, Moody was inside his home at the time the Bridge crew made its unannounced visit. But unlike the plaintiffs in those cases, Moody went out to the driveway for the interview voluntarily, acquiesced to holding a large facsimile check and, by speaking into a microphone held by a well-known Bridge DJ, consented to be audio-taped in that public place in the company of his neighbors. More importantly, Moody had paid $100 to register as a KGGB member; as an avid listener, surely he would have known that being a Bridge-head opened him up to possible impositions of his time for Bridge marketing events that might include phone calls or pranks. As soon as he opened his door, he should have been aware of the likelihood that the DJs were there to attempt some mischief.

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In looking at the issue of privacy and the media, the court has also considered whether the outrageous interview or footage was broadcast to the general public. The broadcast itself does not suffice to bring a plaintiff within the zone of privacy breached, as the court explained in Miller when it refused to accept a claim from the decedents daughter who was not home at the time of the taping. Miller, 187 Cal. App. 3d 1463, 1491. However, the fact the the television station continued to run the footage for weeks after the family asked for its removal from programming weighed in favor of deciding outrageousness. In Moodys case, though, he never requested that the Bridge stop broadcasting the post-prank interview at any time during the two weeks it repeatedly ran. Finally, in one more potential aid to Moodys case, the courts in Wilkins and Salazar observed that audio-taping was more intrusive than video, so the court may look at the Bridge interview as more invasive and thereby more outrageous. However, the argument can be made the other way entirely, that the broadcast of Moodys voice alone kept his image a mystery and preserved his anonymity among the general public, subjecting him to less humiliation than a television appearance. Moody was unemployed, which could merit mention to support vulnerability, but it is unlikely that KGGB knew his work status before it selected him for the prank, and Moody does not claim that it did. It is more probable that the Bridge was not aware that Moody was unemployed, nor did it know of his susceptibility to nervous tension. In fact, one could reasonably assume the opposite, that a person who registers as a potential target of raucous DJs takes on such a risk with a healthy sense of humor and a thick skin. Moody could reasonably argue, however, that even if the Bridge was ignorant of his downtrodden state before the prank, his own outburst detailed the troubles that Moody was already experiencing and served as ample declaration of his susceptibility to stress. The fact that the Bridge continued to play the tape of the prank every day for two weeks, knowing that Moody was potentially vulnerable to distress, works in his favor. An argument for professional misconduct could be made on the grounds that the behavior of the DJ was sophomoric and cruel, but it is unlikely to persuade the court, given the nature of the shock jock phenomenon. Comedy is the legitimate purpose of the broadcast and of KGGBs business; it is seeking to entertain, not to gather and disseminate news for the public benefit, so it is unlikely the court will hold it to the higher standard of conduct. In Salazar, the court noted approvingly that the Golden State Warriors had a legitimate, work-related purpose in videotaping its employee. Salazar, 2000 WL 246586 at *5. Finally, unlike Fletcher, here a professional duty is not omitted but fulfilled. It could hardly be deemed

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unprofessional for the radio station to impose its membership requirements upon a registered listener who benefitted from its services at times. Indeed, it is the carping customer who paid $100 for the possibility and privilege of contact with Bridge DJs and now eschews such a visit as an insufferable burden who seems unreasonable and unprofessional. In summary, Moody offers little support for a claim of outrageous conduct on the part of the Bridge and its employees. CONCLUSION A court is likely to reject Moodys claim of intentional infliction of emotional distress because it completely fails two of the four elements of the standard test and gives weak, contestable support to the remaining two. The DJs conduct does not rise to the high level of outrageousness that the court requires to establish a claim. Moody can argue that the Bridge intentionally inflicted emotional distress on him in playing its prank, but not only was the joke not outrageous, Moody also bears some responsibility for participating. Although he did suffer some minor physical ailments, and continues at present to seek the help of a therapist, these sufferings are neither substantial nor enduring. Lastly, while Moody might claim that the Bridges broadcast of the prank was the proximate cause of his embarrassment, the court will likely recognize that in sharing intimate details of his life without prompting, Moody contributed to his own humiliation and the Bridge was not solely responsible.