Sanders v. American Broadcasting Companies

Page 595

60 Cal.Rptr.2d 595

Previously published at 52 Cal.App.4th 543

52 Cal.App.4th 543, 25 Media L. Rep. 1343,

97 Cal. Daily Op. Serv. 803,

97 Daily Journal D.A.R. 1127

Mark SANDERS, Plaintiff and Appellant, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants and Appellants.

Naras F. KERSIS, Plaintiff, v. CAPITAL CITIES/ABC, INC., et al., Defendants.

No. B094245.

Court of Appeal, Second District, Division 1, California.

Jan. 31, 1997.

Review Granted May 21, 1997.

Christensen, White, Miller, Fink, Jacobs, Glaser & Shapiro, Shari Cohen Rosenman; White, O'Connor, Curry & Avanzado, Andrew M. White and Michael J. O'Connor, Los Angeles, for Defendants and Appellants.

Neville L. Johnson & Associates and Neville L. Johnson for Plaintiff and Appellant.

ORTEGA, Associate Justice.

Stacy Lescht, an American Broadcasting Companies, Inc. (ABC) reporter, answered an employment ad for a business providing telephone psychic advice to callers for $3.95 per minute. Despite her professed lack of relevant experience or training, the business hired Lescht as a "tele-psychic." Lescht secretly video-taped the business' operations as part of an ABC investigation into the tele-psychic industry. Lescht worked at one of many open, three-sided cubicles in a large room with many other tele-psychics. Five feet high partitions divided the cubicles. A standing adult could see the whole room, including into most cubicles, between which conversations could be overheard. Lescht secretly videotaped two conversations with tele-psychic Mark Sanders, one at Lescht's cubicle, one at Sanders'. ABC televised a six-second portion of one of Lescht's secretly videotaped conversations with Sanders as part of a "PrimeTime Live" broadcast.

Sanders sued Lescht and ABC, alleging several causes of action. Before trial, the trial court dismissed all but one of Sanders' causes of action, finding the broadcast true as to Sanders and legitimately newsworthy. Only Sanders' invasion of privacy cause of action went to trial. Despite Sanders' testimony that he thought his conversations with Lescht were confidential, a jury found Sanders did not have an objectively reasonable expectation the conversations were confidential.

Nonetheless, the trial court, over defendants' objection, then instructed the jury sua sponte regarding a "sub-tort" of "the right to be free of photographic invasion." The jury returned a verdict for Sanders. Including an attorney fee award, the trial court entered a $1.2 million judgment for Sanders. Defendants appeal, arguing there is no such sub-tort, and, as a matter of law, all invasions of privacy require that the plaintiff reasonably expect the conversation will be confidential. Defendants claim the jury finding that Sanders lacked an objectively reasonable expectation of confidentiality bars his recovery. Sanders responds the sub-tort exists and protects against secret videotaping of conversations where one participant expects the conversations will be confidential, even where those expectations are not objectively reasonable.

We agree with defendants the jury finding that Sanders lacked an objectively reasonable expectation of privacy bars any recovery. We reverse and remand the case for the trial court to enter judgment for defendants. ¹

DISCUSSION

We begin by noting that Sanders' only cause of action remaining at trial was invasion of privacy. The trial court's sub-tort of invasion of the right to be free of photographic invasion was derived from the invasion of privacy tort. There was no defamation, false light, or related cause of action. Likewise, there was no cause of action for trespass or fraud. Thus, our analysis is limited to the invasion of privacy tort, and whether that theory contains a sub-tort of the right to be free from photographic invasion.

Without objection from Sanders, the trial court instructed the jury consistent with Penal Code section 632. ² Subdivision (a) of that section provides, in relevant part, that "[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device ..." is guilty of a crime. (Emphasis added.) Subdivision (c) of that section defines "confidential communication," in relevant part, as "any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering ... or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." (Emphasis added.)

Section 632 is part of Chapter 1.5 (§ 630 et seq.), entitled "Invasion of Privacy." Section 630 states in relevant part: "The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society. [p] The Legislature by this chapter intends to protect the right of privacy of the people of this state." (Emphasis added.)

Article I, section 1 of the California Constitution expressly includes a right of privacy among the people's inalienable rights. Defendants claim section 632's exclusion of objectively non-confidential communications from the proscription against electronic eavesdropping also applies to the tort of invasion of privacy. Sanders claims, however, that the trial court correctly fashioned a sub-invasion of privacy tort, invasion by surreptitious photography. Sanders claims this sub-tort lies if the person photographed does not subjectively intend that his communication be photographed, even if the communication occurs without an objectively reasonable expectation of privacy.

As stated in our introduction, we agree with defendants. Initially, we quickly dispose of a few non-issues suggested by Sanders. First, by definition no one consents to being secretly photographed. If Sanders were correct, there could be no objectively reasonable expectation of confidentiality requirement for privacy invasions. Second, Sanders suggests Lescht trespassed by falsely posing as an employee to gain access to an area not open to the public, and that Lescht committed fraud by not disclosing she was a reporter. However, we repeat that neither trespass nor fraud causes of action were before the jury, which considered only an invasion of privacy tort. Thus, we ignore cases cited by Sanders involving these irrelevant causes of action. (See, among others, Baugh v. CBS, Inc. (N.D.Cal.1993) 828 F.Supp. 745.) Third, we note the case implicates First Amendment freedom of the press issues, resolution of which requires care lest we improperly restrict press freedom. (See Branzburg v. Hayes (1972) 408 U.S. 665, 681, 92 S.Ct. 2646, 2656-2657, 33 L.Ed.2d 626; New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686.) Fourth, we reject Sanders' claim that private persons such as Lescht can violate the Fourth Amendment's prohibition on unreasonable searches and seizures, which applies only to government agents. (See New Jersey v. T.L.O. (1985) 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720.) Fifth, we reject Sanders' request to augment the record to include briefs submitted by ABC in another case. Sanders claims ABC took another position in that litigation. Even if true (which ABC disputes), that would have no impact on our case, resolution of which is limited to our record. Finally, we note the trial court limited its sub-tort to surreptitious photography, agreeing it could not apply to audio recording of conversations in situations where there was no objectively reasonable confidentiality expectation.

Sanders does not seriously dispute that, in general, the invasion of privacy tort requires an invasion into a secluded area where one has an objectively reasonable expectation of privacy, that is, an objectively reasonable expectation of confidentiality. "Based on our review of the Privacy Initiative [Cal. Const., art. I, § l], we hold that a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy. [p] Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court. [Citations.] Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact. If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law. [p] A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests.... [p] The existence of a sufficient countervailing interest or an alternative course of conduct present threshold questions of law for the court. The relative strength of countervailing interests and the feasibility of alternatives present mixed questions of law and fact. Again, in cases where...