For those readers who have ever wondered how we at Law Law Land come up with blog topics, know that it is a very sophisticated process. Case in point:
Associate 1 agrees to wear a pig beanie recently worn by actor Jared Leto if Associate 2 takes him out to breakfast.
Associates 1 and 2 cannot find the actual pig beanie worn by said actor.
Naturally, Associate 2 believes that Associate 1 should wear the flying pig hat (how could he not). Associate 1 protests. Associate 2 emails other associates for support. One of those associates notices that one of the “Customers Also Viewed” suggestions on Amazon is afood truck-themed pornographic film named “The Flying Pink Pig.” Another associate points out that, according to TMZ, the owners of the Flying Pig food truck had recently sent a cease and desist letter to the film’s producers, claiming that they were led to believe that the food truck would be used as a backdrop for a normal film (rather than a prop for a Ron Jeremy sex romp). Alas, a blog post is born.
This situation has implications that touch far beyond the comparatively limited food truck community (though these days, there may be more food trucks than people in Los Angeles). Any property owner who decides to rent out a property for a film shoot should take note — especially if it happens to be in the San Pornando Valley. What happens if you rent your home/business/food truck for a film, and the film turns out to be something a little more unseemly than you expected?
The first place to look, of course, is the actual contract. If the contract says nothing about the orgy that was filmed in your family room, you may have a claim for fraudulent concealment. To succeed on a claim for fraudulent inducement in California, a plaintiff must prove that (1) the defendant failed to disclose or concealed a material fact with an intent to defraud, (2) the defendant had a duty to disclose, (3) the plaintiff must have been unaware of the fact and would not have entered into the contract if he or she knew of the fact, and (4) the plaintiff suffered damages.
Call me old-fashioned, but the fact that a hardcore porno is going to be filmed in my home would be material to say the least, and something that I would hope that the producers have a duty to disclose. But it may not be as simple as that. Just because you know that a party would want to know something doesn’t mean you have a legal duty to disclose it (and unfortunately, separate ethical guidelines like the Bro Code still aren’t recognized in American courts). Under California law, a duty to disclose arises when: (1) the parties are in a “fiduciary” or “confidential” relationship (doctors, agents, lawyers, trustees, business partners, etc.); (ii) the defendant took affirmative steps to conceal important information from the victim (as opposed to just conveniently leaving out some facts); (iii) the defendant makes a partial disclosure which is itself misleading without the rest of the context; or (iv) the defendant has superior and exclusive knowledge of material facts which the victim probably couldn’t access. Our jilted proprietors of airborne swine-themed fare would seemingly be forced to rely on the “superior knowledge” basis for finding a legal duty (how were we supposed to know you were going to put THAT there?!”), but most courts have limited it to certain specified types of transactions (principally in the real estate context).
In any event, unfortunately for the unhappy food truckers, whether or not the producers of the Flying Pink Pig porno actually had a duty to disclose the particulars of the “romantic scenes” they were staging in the complainants’ food truck, it appears that the producers did just that. According to the response letter to the Flying Pig’s initial cease-and-desist letter, the agreement in question actually stated that the film “may or may not involve sexually explicit conduct.” Prior to filming, the producers apparently sent other porn DVDs that they had previously produced to one of the Flying Pig owners. And after viewing the end result, one of the owners reviewed the movie as “SEX + FOOD + FUN = well, just about all of my favorite things! A 10 for sure.” (I love that guy, and I hope they put that quote on the next version of the DVD cover.) The response letter is rife with other gems, all of which seem to prove that the Flying Pig owners knew exactly what they were getting into.
Now comes the issue of damages. In the case of the Flying Pig, damage to reputation would seem to be relatively easy to prove. I think most diners would rather see a dozen rats crawl out of a food truck than Ron Jeremy, even if he were fully clothed. And in their demand letter, the owners of the Flying Pig even claimed that customers had already expressed concerns over cleanliness (some things, no amount of cleaning solvent will be able to wash away). If they could get past the other hurdles to their claim, the Flying Piggies would ideally need to come up with figures demonstrating declining visits/revenue to go with their anecdotal evidence of customer gross-out. Damage claims for a typical homeowner bringing this type of claim would likely range from damage to reputation (but hey, at least none of your friends will ever admit they actually saw the movie) to damages for never being able to look at the kitchen counter the same way ever again.
Of course, the most sophisticated producers generate broadly-drafted releases which lie to you, then tell you that they might be lying to you, then make you release them for lying to you, or lying to you about whether they’re lying to you, or…you get the idea. This approach could let unscrupulous producers go to great lengths to lie about their intended use of your kid’s bedroom, your den, and your pool table, as long as they include somewhere in the same document a warning that they might not be doing what they claim to be doing in your house.
So if somebody offers you $10,000 and claims they can film a whole movie in your house in just one day, maybe be a little skeptical. If reality producers can get out of liability after tricking old ladies and college kids into signing misleading waivers, don’t expect to get much sympathy yourself.