Filed 10/31/19 Young v. Kenco Logistic Services, LLC CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
HUGUETTE NICOLE YOUNG,
Plaintiff and Appellant,
v.
KENCO LOGISTIC SERVICES, LLC, et al.,
Defendants and Respondents.
A153023
(Alameda County
Super. Ct. No. RG17860545)
Plaintiff Huguette Nicole Young worked as a commercial truck driver for Kenco Logistic Services, LLC (Kenco). Following two workplace disciplinary actions against her, Young, appearing in propia persona, filed suit against Kenco and SmartDrive Systems, Inc. (SmartDrive), a contractor it used to surveil its drivers (Kenco and SmartDrive are collectively Respondents). Young alleged the disciplinary actions defamed her and that video recording her while working constituted an invasion of privacy by intrusion. The trial court sustained Respondents’ demurrer without leave to amend and dismissed the complaint.
Young’s invasion of privacy claim was not capable of resolution by demurrer on the facts as alleged in her First Amended Complaint. We therefore reverse the judgment of dismissal and the order sustaining the demurrer solely as to the invasion of privacy by intrusion cause of action. In all other respects, we affirm.
BACKGROUND
Because this appeal challenges a trial court order sustaining a demurrer, we draw the relevant facts from the complaint and facts subject to judicial notice. (Adams v. Paul (1995) 11 Cal.4th 583, 586.)
Young has worked for Kenco as a commercial truck driver since September 2016.
Kenco contracts with SmartDrive to provide in-truck camera systems for surveillance of Kenco truck drivers. Kenco trucks use the SmartDrive dual camera system which monitors both the driver and the road in front of the truck. Respondents claim a SmartDrive camera mounted inside the truck turns on and records upon a “SmartDrive triggered event,” a “purportedly dangerous driving maneuver performed by a commercial truck driver.” Such events include “braking too hard, following too closely, speeding greater than 15 mph above the speed limit, or turning a corner too sharply.” The outward facing camera records what is happening on the road from the point of view of the driver, and the inward facing camera simultaneously records the driver’s actions inside the truck cab. The SmartDrive camera captures 20 seconds of total video surrounding the triggering event. The video is transmitted from the truck to SmartDrive safety specialists who review the video footage and provide Kenco clips of driving behavior considered dangerous. Kenco’s internal safety specialists conduct a second review and make determinations of driver discipline, if any.
Young’s truck contained a SmartDrive camera, which was apparent to Young at the outset of her employment. But she was not initially asked permission to be filmed or recorded or told how the camera system worked. In June 2017, after she initiated this action, Respondents attempted to train Young and her coworkers on the SmartDrive system. Acceptance of the surveillance system was made a condition of their employment; no explicit permission from the drivers was sought.
Young was subject to two disciplinary actions documented in Kenco “Opportunity for Improvement Form[s]” (OFIs) attached as exhibits to Young’s complaint. In December 2016, Kenco issued an OFI stating: “On 12/14/16 during the review of a SmartDrive triggered event, [Young] was observed driving while holding a cell phone without using a one touch device. This is a violation of CP-SH-813 (Cellular Phone/Electronic Device Use Procedure).” Kenco has a written policy that “prohibits use of cellular phones without the use of a hands free method, for any purpose while operating a vehicle on work time.”
In January 2017, Young received a second OFI, which stated: “On 1/4/17 during the review of a SmartDrive triggered event, [Young] was observed using a mobile device while driving. This is a violation of CP-SH-813 (Cellular Phone/Electronic Device Use Procedure).” Both OFIs contain Young’s signature as well as the signature of the person who facilitated the disciplinary action.
On June 30, 2017, Young filed her First Amended Complaint (FAC), the operative pleading in this action, asserting four causes of action: defamation, invasion of privacy (intrusion), invasion of privacy (misappropriation of likeness), and invasion of privacy (false light). She alleged that a SmartDrive camera was on and recording her the entire time she drove since she began work and that her truck had a sleeper berth, “so that the camera [was], in effect, constantly filming plaintiff’s bedroom as she [was] driving.” Young alleged she did not perform a dangerous maneuver or otherwise drive her truck in any dangerous way that would have triggered her SmartDrive camera. She further alleged the statement in her first OFI that she was “ ‘observed driving while holding a cell phone’ ” was false because she in fact “was holding a camera.” She often used her cell phone as a camera to film recurring mechanical problems exhibited when the truck was in operation, and she was unable to do so without holding the phone or without driving the truck. She alleged the statement in the second OFI that she was using a mobile device while driving was false because she “was using a GPS device mounted on a one-touch stand.” She “used her cell phone exclusively as a GPS device while driving” because of her preference for a particular navigation application.
Soon after amending her complaint, she moved to certify the case as a class action, which the trial court denied. Young also moved three times to disqualify the trial court judge and was unsuccessful each time.
In September 2017, Respondents demurred to the FAC. Young did not submit any written opposition to the demurrer. Following a hearing, the trial court sustained the demurrer without leave to amend, and then later entered judgment of dismissal. This appeal followed.
DISCUSSION
Standard of Review
“In our de novo review of an order sustaining a demurrer, we assume the truth of all facts properly pleaded in the complaint or reasonably inferred from the pleading, but not mere contentions, deductions, or conclusions of law. [Citation.] We then determine if those facts are sufficient, as a matter of law, to state a cause of action under any legal theory.” (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1052.) To prevail on appeal from an order sustaining a demurrer, “the appellant must affirmatively demonstrate error. Specifically, the appellant must show that the facts pleaded are sufficient to establish every element of a cause of action and overcome all legal grounds on which the trial court sustained the demurrer. [Citation.] We will affirm the ruling if there is any ground on which the demurrer could have been properly sustained.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752.)
“When a demurrer is sustained without leave to amend, this court decides whether a reasonable possibility exists that amendment may cure the defect; if it can we reverse, but if not we affirm. The plaintiff bears the burden of proving there is a reasonable possibility of amendment. [Citation.] The plaintiff may make this showing for the first time on appeal. [Citations.] [¶] To satisfy that burden on appeal, a plaintiff ‘must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ [Citation.] . . . [Citation.] The plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it. Further, the plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action. [Citations.] Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44 (Rakestraw).)
“The burden of showing that a reasonable possibility exists that amendment can cure the defects remains with the plaintiff; neither the trial court nor this court will rewrite a complaint. [Citation.] Where the appellant offers no allegations to support the possibility of amendment and no legal authority showing the viability of new causes of action, there is no basis for finding the trial court abused its discretion when it sustained the demurrer without leave to amend.” (Rakestraw, supra, 81 Cal.App.4th at p. 44.)
“Pro. per. litigants are held to the same standards as attorneys.” (Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
Defamation
Young alleges the court erred in sustaining the demurrer to her defamation cause of action. We disagree.
“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Publication means communication to some third person who understands the defamatory meaning of the statement and its application to the person to whom reference is made. Publication need not be to the ‘public’ at large; communication to a single individual is sufficient.” (Smith v. Maldonaldo (1999) 72 Cal.App.4th 637, 645.) The trial court sustained the demurer because it found no publication to third persons in the allegation of the FAC. This was not an erroneous decision.
Young’s FAC alleged the defamatory statements “have been seen and read by third parties in a non-privileged manner and have therefore been published.” This is a legal conclusion we are to disregard in reviewing a ruling on a demurrer. (See McBride v. Smith (2018) 18 Cal.App.5th 1160, 1173 [“ ‘Because only factual allegations are considered on demurrer, we must disregard any “contentions, deductions or conclusions of fact or law alleged [in the complaint].” ’ ”].) Otherwise, the FAC does not refer to any third-party disclosure. The OFIs attached to the complaint containing the allegedly defamatory statements appear on Kenco letterhead. Besides Young, who acknowledged both OFIs with her signature, the disciplinary notices identify two others. Edwin Sembrano is identified as Young’s “Manager/Supervisor” as well as the one tasked with warning and retraining Young and is reasonably understood to be a Kenco employee. The OFIs also contain the signature of an unidentified person who facilitated the OFIs, but Young makes no contention that the signatory is from outside of the Kenco chain of authority or supervision. In fact, Young acknowledges the signer is a Kenco manager. Neither the FAC or the attached OFIs show the disciplinary actions were published to anyone besides Young and the Kenco employees who authored or facilitated them. Even assuming the OFIs contained defamatory statements, there is no indication their content was ever disseminated to any third party, and Young makes no argument she could allege such a publication.
Young contends the publication requirement was met because the OFIs “both show the signature of at least one Kenco manager (third person) who did not write the statements and yet was involving in using each publication to discipline her.” She adds that “dozens of managers at Kenco have access to [her] personnel file and can view it at will at any time.” She contends, “A company may be liable for any tort committed by one employee against another employee if the tort was committed during the course of carrying out the duties of employment. A defamatory communication about one employee by another employee to a third employee is not . . . considered “unpublished” just because the employees all work for the same company.”
Young fails to cite any legal authority to support her argument. She has asserted no authority, nor have we found any, that a supervisor’s involvement in an employee performance review, as a facilitator or author, constitutes a third party disclosure resulting in a publication. Absent any citation of authorities, we may treat the argument as waived or abandoned and do so here. (Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 948 (Ellenberger).) Further, Young’s argument that “dozens” of Kenco managers were able to see her personnel file at any time does not mean they actually did so and is no more than the type of rank speculation we do not consider when reviewing a demurrer. (See Bettencourt v. Hennessy Industries, Inc. (2012) 205 Cal.App.4th 1103, 1111.).
Young also argues that “under the theory of ‘compelled self-publication’ Respondents may be found liable for defamation without even saying a word to a third party if [she] was forced to disclose to any third party who asked the reason for a very public disciplinary action against [her] by Respondents based on false statements, such as a suspension from work.” Young contends republication has foreseeably occurred twice when a Kenco customer asked her why she would not be handling its deliveries as anticipated, and she “was forced to reveal she had been suspended from work due to (the false defamatory accusations of unsafe driving behavior about [her] in her personnel file).” She also says she was “of course also forced to reveal to her children, friends, and debtors why she was all of a sudden not working for three days in a row and not getting the paycheck she expected, the only alternative being to lie.”
Again, Young fails to support these arguments involving republication with any legal authority, so we consider them waived. (Ellenberger, supra, 30 Cal.App.4th at p. 948.) Even if we were to consider them, the compelled self-publication exemption would not apply. Under this theory, the originator of a statement may be liable for defamation when the person defamed republishes the statement, provided that the originator “has reason to believe that the person defamed will be under a strong compulsion to disclose the contents of the defamatory statement to a third person after he has read it or been informed of its contents.” (McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, 796 (McKinney).) However, this rule “has been limited to a narrow class of cases, usually where a plaintiff is compelled to republish the statements in aid of disproving them.” (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1285.) Moreover, the originator of the statement must foresee the likelihood of compelled republication when the statement is originally made. (McKinney, supra, 110 Cal.App.3d at p. 798; Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 497.)
Young’s case does not resemble the narrow class of cases customarily invoked for the exception. In McKinney, supra, 110 Cal.App.3d 787, the employer used the derogatory statements as the basis for the employees’ dismissal. (Id. at p. 795.) When the employees subsequently applied for jobs with prospective employers, they were questioned as to the stated reasons for termination from their previous jobs. Under these circumstances, the employees were required to disclose the defamatory reasons for termination. Accordingly, such disclosure was foreseeable. (Id. at pp. 797-798.) Young has not alleged and makes no argument that Kenco shared Young’s disciplinary actions to any potential future employers which required her to retract or disprove them. Nowhere has Young alleged termination or even her search for a new job. Neither of her compelled republications involved a prospective employer who could have reasonably been expected to know about the disciplinary actions and then refused to hire her. Without any allegation the OFIs were shared as negative job references, it was not foreseeable that Young would be compelled to republish the statements.
Further, none of Young’s alleged republications to the Kenco customer or to her children, friends, and debtors were foreseeable results of the alleged defamatory statements. The discipline described in the contested OFIs for holding a cell phone while driving was limited to verbal and written warnings and retraining. While the OFIs state that future violations may lead to further disciplinary action, they do not refer to Young being suspended from work—the disciplinary measure that she says compelled her self-publications. There is nothing in the alleged defamatory OFIs that would have prompted a Kenco customer to question her absence from a delivery, or her children, friends, and debtors to ask about her not working or getting paid. The mere possibility of future republication is not enough to fall within the exception. (See Dible v. Haight Ashbury Free Clinics (2009) 170 Cal.App.4th 843, 854-855.)
Invasion of Privacy
Young argues the court erred in sustaining the demurrer to her cause of action for invasion of privacy by intrusion claim. We agree the demurrer to this claim should not have been sustained without leave to amend. In light of the allegations of the FAC, it was premature to resolve on demurrer whether Young maintained a reasonable expectation of privacy under the circumstances.
Young asserted an invasion of privacy under both the California Constitution and the common law. To establish a claim under the California constitutional right to privacy, a plaintiff must demonstrate: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy under the circumstances; and (3) conduct by the defendant that amounts to a serious invasion of the protected privacy interest. (Hill v. Nat’l Collegiate Athletic Assn (1994) 7 Cal.4th 1, 35-37 (Hill).) To state a common law invasion of privacy, a plaintiff must allege “(1) intrusion into a private place, conversation or matter (2) in a manner highly offensive to a reasonable person.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231 (Shulman).) “The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source.” (Id. at p. 232.)
Young alleged sufficient facts to state a claim for invasion of privacy by intrusion. Setting aside her legal conclusions and contentions, Young alleged that when she began work as a Kenco commercial truck driver in September 2016, she was assigned a truck with a SmartDrive dual recording system, which monitored both the road in front of the truck and the driver. At that point, she was never asked permission to be filmed or recorded and never told how the camera system worked. Notwithstanding Respondents’ claims that it only recorded when a certain “triggered event” occurred, she alleged the camera was “on and recording the entire time” she drove her truck since she began working for Kenco. This included the constant filming of the sleeper berth in her cab. She alleged the cab of her truck was not a public or even a semi-public area that someone can enter at any time. These allegations, which we must accept as true, were sufficient to survive Respondents’ demurrer.
Whether Young had a reasonable expectation of privacy under the circumstances was not a matter suited for determination at the pleading stage. “ ‘The extent of [a privacy] interest is not independent of the circumstances.’ ” (Hill, supra, 7 Cal.4th at p. 36.) “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Id. at p. 37.) “[C]ustoms, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy.” (Id. at p. 36.) Other factors, such as advance notice of an impending action, may impact a person’s reasonable expectation of privacy. (Ibid.) In addition, “the presence or absence of opportunities to consent voluntarily to activities impacting privacy interests obviously affects the expectations of the participant.” (Id. at p. 37.) “A plaintiff’s expectation of privacy in a specific context must be objectively reasonable under the circumstances, especially in light of the competing social interests involved.” (Id. at pp. 26-27.)
The Supreme Court’s opinion in Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992 (Sheehan) is instructive. The issue in Sheehan was whether the plaintiffs stated a claim that their constitutional privacy was violated by a policy of the National Football League requiring all patrons at NFL games to submit to a patdown search before entering. (Id. at p. 996.) The trial court had dismissed the case on demurrer, so the 49ers had not filed an answer, given any explanation for its surveillance policy, or asserted any defenses, which limited the record to the complaint. (Id. at p. 998.) Noting the multiple factors that were considered in determining whether a reasonable expectation of privacy existed under the circumstances, the court found the factual record deficient. (Id. at p. 1000.) The court concluded that “given the absence of an adequate factual record . . . further inquiry [was] necessary to determine whether the challenged policy is reasonable” and that the plaintiffs were entitled to proceed with their case. (Id. at pp. 1000, 1003.)
Likewise, the record here is limited, consisting of only the operative complaint, the attachments, and the legislative history materials subject to judicial notice. While Young’s complaint alleged certain aspects of Respondents’ surveillance system, missing from the record is any evidence of the customs and practices surrounding driver surveillance that may create or inhibit reasonable expectations of privacy. Nor does the record include Respondents’ reasons for the surveillance. While it is possible to presume such policies were forged for driver safety, the record does not establish it. Based on her allegations, Young is entitled to the development of an adequate factual record to more properly test her claim.
In addition, whether there is a reasonable expectation of privacy under the circumstances is a mixed question of law and fact. (Hill, supra, 7 Cal.4th at p. 40.) The reasonable expectation of privacy may be adjudicated as a matter of law but not when the material facts are in dispute. (Ibid.) Here, material facts were in dispute. Respondents claimed only SmartDrive triggered events caused a SmartDrive camera to record. But Young alleged that “the cameras recorded her the entire time she drove ever since she began work.” The cause of action was not resolvable on demurrer.
Respondents argue that because she saw the camera mounted in the cab and knew she was being videotaped, Young did not have a reasonable expectation of privacy. To the extent Respondents suggest Young consented to the intrusion, the allegations do not substantiate that defense. The Supreme Court has explained “that, in order to establish a reasonable expectation of privacy, the plaintiff ‘must have conducted himself or herself in a manner consistent with an actual expectation of privacy, i.e., he or she must not have manifested by his or her conduct a voluntary consent to the invasive actions of defendant.’ ” (Sheehan, supra, 45 Cal.4th at p. 1000.) Here, Young alleged she was never asked permission to be filmed or recorded. According to the FAC, only about six months after she began work did Kenco attempt to train her on the SmartDrive system and made her acceptance of it a condition of employment. No consent is clear from these allegations and in any event, “the validity of the consent theory depends on the totality of the circumstances” (ibid.), which the existing record does not establish. While the presence of a camera indicated the possibility of recording at some point, Young’s allegations point to a lack of knowledge about the circumstances under which she would be recorded.
Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, which Respondents rely upon, is distinguishable. There, the court held Holmes had no expectation of privacy over emails she sent her attorney from a company computer because the company had a policy against using computers for personal reasons and the policy stated the company could monitor all emails. (Id. at pp. 1068-1071.) Holmes was warned the computer was to be used only for company business, that e-mails were not private, and that the company would randomly and periodically monitor its technology resources to ensure compliance with the policy. (Id. at p. 1069.) Further, she “admitted reading and signing” the company policy. (Id. at p. 1052.) Young received no similar warning and never signed off on any recording policy.
Respondents also contend Young had no reasonable expectation of privacy because “videotaping systems such as SmartDrive’s are widely used in the commercial trucking industry with the approval of the California Legislature.” They cite a 2014 Attorney General Opinion (discussed in more detail below) which acknowledged the “ ‘not uncommon’ ” practice of “ ‘using video cameras to continuously record the actions’ ” in considering whether such surveillance constituted a misdemeanor under Labor Code section 1051. (See 97 Ops.Cal.Atty.Gen. 5 (Feb. 13, 2014)
Neither the opinion of the Attorney General nor the amendment to the Vehicle Code precludes Young’s claim, or dispositively establishes she lacked a reasonable expectation of privacy in the alleged circumstances. The issue the Attorney General was asked to address was whether continuous videotaping surveillance under certain circumstances violated Labor Code section 1051. (See 97 Ops.Cal.Atty.Gen. 5 (2014).) The Attorney General was not asked to evaluate the privacy implications for such surveillance and did not analyze privacy concerns. (Cf. People v. Jennings (2010) 50 Cal.4th 616, 684 [“ ‘[C]ases are not authority for propositions not considered.’ ”].) Moreover, while the Legislature’s amendment of the Vehicle Code to authorize recording devices to be placed on windshields over certain privacy objections may be a factor in assessing the “broadly based and widely accepted community norms” surrounding Young’s reasonable expectation of privacy, it alone does not settle the matter. “[T]his element rests on an examination of ‘customs, practices, and physical settings surrounding particular activities’ [citation] as well as the opportunity to be notified in advance and consent to the intrusion.” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 287; Hill, supra, 7 Cal.4th at p. 37.)
Finally, Respondents contend, “Even if [Young] had some reasonable expectation of privacy not to be videotaped while driving commercial vehicles for Kenco, that privacy is outweighed by society’s interest in promoting safe driving.” These countervailing interests cannot dispose of Young’s claim as expressed in her complaint. The Supreme Court explained: “ ‘The party claiming a violation of the constitutional right of privacy established in article I, section 1 of the California Constitution must establish (1) a legally protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3) a serious invasion of the privacy interest.’ [Citation.] ‘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.’ ” (Sheehan, supra, 45 Cal.4th at p. 998.) “Confronted with a defense based on countervailing interests, the plaintiff may undertake the burden of demonstrating the availability and use of protective measures, safeguards, and alternatives to the defendant’s conduct that would minimize the intrusion on privacy interests. [Citation.] . . . [I]f defendant’s legitimate objectives can be readily accomplished by alternative means having little or no impact on privacy interests, the prospect of actionable invasion of privacy is enhanced.” (Hill, supra, 7 Cal.4th at p. 38.)
The trial court erred when it determined as a matter of law that Young had no reasonable expectation of privacy under the circumstances. She adequately alleged a cause of action for invasion of privacy by intrusion and should be allowed to proceed on this claim.
Labor Code Section 1051
Young asserts in her opening brief that Respondents also violated Labor Code section 1051 by providing video recordings to third parties. She did not allege a cause of action under this statute in the FAC, so we treat her argument as a request for leave to amend to add one and consider the merits of the claim. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747 [leave to amend is an issue open on appeal even if not raised by the plaintiff].)
Section 1051, subject to certain exceptions inapplicable here, provides: “[A]ny person or agent or officer thereof, who requires, as a condition precedent to securing or retaining employment, that an employee or applicant for employment be photographed or fingerprinted by any person who desires his or her photograph or fingerprints for the purpose of furnishing the same or information concerning the same or concerning the employee or applicant for employment to any other employer or third person, and these photographs and fingerprints could be used to the detriment of the employee or applicant for employment is guilty of a misdemeanor.” (Lab. Code, § 1051.)
Young cannot set forth factual allegations that state a claim under section 1051. (See Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.) As discussed above, in 2014, the Attorney General considered whether continuous videotaping surveillance of truck drivers during their on-the-job driving constituted a misdemeanor under section 1051 where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer. (97 Ops.Cal.Atty.Gen. 5 (2014).) The Attorney General concluded: “[C]ontinuous videotaping surveillance of truck drivers during their on-the-job driving does not constitute a misdemeanor under Labor Code section 1051 where the video file is inspected by a third party and used as a basis for discipline by the driver’s employer, provided that the third party is an agent of the driver’s employer who is videotaping and inspecting the file for the sole benefit of the driver’s employer, and that the file is furnished only to the drivers employer.” (97 Ops.Cal.Atty.Gen. 5 at p. 1 (2014), italics added.)
According to the Attorney General, “Section 1051 is rooted in former Penal Code section 653e, an ‘anti-blacklisting law’ that was enacted in 1913.” (97 Op.Atty.Gen. 5 at p. 3 (2014).) “State blacklisting laws were enacted largely between the years 1887 and 1930 ‘because employers, in an effort to quash labor organization, created and circulated lists of pro-union workers to prevent them from gaining employment.’ ” (Id. at p. 3, fn. 4.) Section 1051 “ ‘prohibited an employer from attempting to prevent a former employee from obtaining employment with any other person by misrepresentation.’ ” (Id. at p. 3.) Thus, “[t]he statute . . . prohibits the taking of fingerprints and photographs ‘for the purpose of furnishing the same . . . to any other employer or third person.’ ” (Ibid.) Where surveillance video taken by a third party for the sole benefit of the driver’s employer and furnished only to the driver’s employer, liability was not to be extended beyond the “narrow confines” of section 1051. (Id. at p. 4.)
Even assuming a photograph and video recordings are equivalent for purposes of section 1051, Young’s FAC does not allege any transmission to any “other employer or third person” within the meaning of the statute. Rather, the FAC alleges the video is sent from the truck to SmartDrive specialists who review the video and pass on to Kenco any clips that show dangerous driving. Thus, the allegations state the video of Kenco’s employees are returned to Kenco, their own employer, for Kenco’s internal use. These allegations cannot state a claim under section 1051.
Young insists that Respondents are violating section 1051 because SmartDrive is not Kenco’s agent. According to Young, because there is no agency relationship, video transmission between the two entities is not exempt from section 1051 and the Attorney General Opinion is not on point. We are not persuaded, and Young’s own allegations betray her argument. In her FAC, she alleges Kenco contracts with SmartDrive to provide the video system. More to the point, she alleges “defendants were the agents and employees of their codefendants and in doing the things alleged in this complaint were acting within the course and scope of such agency and employment.” Even apart from these express agency allegations, the arrangement between Kenco and SmartDrive as described in the FAC appears to qualify for an exception under section 1051. The Attorney General opinion notes: “In this case, the photographer is not the employer itself, but the employer’s agent—the system operator—who is under contract with the employer regarding both the recording of the images and the subsequent use of the images.” (97 Ops.Cal.Atty.Gen. 5 at p. 6 (2014).) Likewise, here, SmartDrive is not Young’s employer but the system operator contracted by her employer, Kenco, to record video and send certain clips back to Kenco. There is no claim under section 1051 and no basis under this statute for concluding the trial court erred in sustaining the demurrer to Young’s complaint without leave to amend.
Penal Code Section 637
Young also asserts in her opening brief that “SmartDrive’s secret recordings of private conversations of Kenco drivers without driver consent violates California Penal Code section 637.” She contends SmartDrive “collects audio data on [her] and all other Kenco drivers without permission” in violation of section 637. This is another claim not alleged in Young’s operative complaint. Again, we treat her argument as a request for leave to amend and consider the merits of this cause of action. It, too, lacks merit.
Section 637 makes it unlawful for “[e]very person not a party to a
telegraphic or telephonic communication who willfully discloses the contents of a
telegraphic or telephonic message, or any part thereof, addressed to another person,
without the permission of that person, unless directed so to do by the lawful order of a
court.” (Pen. Code, § 637.)
Young has also failed to set forth factual allegations that fulfill the required elements of the claim. She argues only that “audio data” is collected but does not claim she could allege the disclosure of any “telegraphic or telephonic” communications required under the statute. Existing allegations in the FAC in fact reveal she could make no such allegation, such as the allegations that “there will be no phone records showing [she] was ‘using her phone’ during the times when she was being filmed” and “used her cell phone exclusively as a GPS device while driving” or as a camera to film mechanical problems. It is clear Young would be unable to allege facts necessary for a section 637 cause of action. Since there is no claim under section 637, there is also no basis to conclude the trial court erred in sustaining the demurrer to Young’s complaint without leave to amend.
Judicial Bias
Young argues the trial court showed “harmful bias” against her. She invites us to address the issue in light of her three unsuccessful judicial challenges, so we do.
On appeal, a party may attack a final judgment on the constitutional ground that the judgement was biased. (People v. Brown (1993) 6 Cal.4th 322, 332 (Brown).) A defendant has a due process right to an impartial trial judge under the state and federal Constitutions. (Ibid.) The due process clause of the Fourteenth Amendment requires a fair trial in a fair tribunal before a judge with no actual bias against the defendant or interest in the outcome of the case. (Bracy v. Gramley (1997) 520 U.S. 899, 904-905.) On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of “ ‘a fair, as opposed to a perfect, trial.’ ” (People v. Snow (2003) 30 Cal.4th 43, 78.)
In Brown, supra, 6 Cal.4th 322, the court recognized that Code of Civil Procedure section 170.3, subdivision (d), which requires writ review of the denial of a statutory motion to disqualify, “does not apply to, and hence does not bar, review . . . of nonstatutory claims that a final judgment is constitutionally invalid because of judicial bias.” (Id. at p. 335.) However, “[i]n order to give maximum effect to the Legislature’s clear intent that disqualification challenges be subject to prompt review by writ [citation], [the court] conclude[d] that a litigant may, and should, seek to resolve such issues by statutory means, and that his negligent failure to do so may constitute a forfeiture of his constitutional claim.” (Id. at p. 336.) Here, Young actually petitioned for writ review of the trial court’s orders striking her challenges. However, she never tendered the required filing fee, and after being given the opportunity to cure the defect, we dismissed the petition. Because Young never perfected her writ petition and it was dismissed, she has forfeited her constitutional claims. (See Roth v. Parker (1997) 57 Cal.App.4th 542, 548-549 [appellant’s failure to seek writ review of order denying judicial challenge forfeited her nonstatutory due process attack on judgment on judicial bias grounds].)
Even if we were to reach the merits of Young’s judicial bias arguments, they are without merit. The mere fact that a judicial officer rules against a party does not show bias. (See, e.g., People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562-1563.) Not even if the trial court’s rulings were incorrect. (People v. Samuels (2005) 36 Cal.4th 96, 115; Blakemore v. Superior Court (2005) 129 Cal.App.4th 36, 59-60.) Young’s arguments are entirely premised on her dissatisfaction with the trial court’s rulings. Young has not shown the trial court exhibited bias.
We shall also pass on Young’s constitutional challenges to Code of Civil Procedure section 170.4, subdivision (b), and Article 6, Section 16, of the California Constitution. Code of Civil Procedure section 170.4 subdivision (b) allows a trial judge against whom a statement of disqualification is filed to order the challenge stricken if on its face it discloses no legal grounds for disqualification. (Code Civ. Proc., § 170.4.) Article VI, Section 16, of the California Constitution provides that superior court judges are to be elected in general elections. (Cal. Const., Art. VI, § 16.) The record does not show that Young raised these issues in the trial court. “Typically, constitutional issues not raised in earlier civil proceedings are waived on appeal.” (Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1101.) We decline to reach these issues for the first time on appeal.
Other Issues
Young raises a myriad of issues for the first time in her reply brief. She contends that Respondents “failed to address five of the eleven causes of action claimed by appellant.” Specifically, she contends Respondents did not address causes of action for intentional misrepresentation, fraudulent misrepresentation, breach of an implied employment contract, discrimination, and wrongful termination which she asserts were “presented” in her motion for class certification. She further asks that “any decisions from the Court address, or at the very least recognize by name, all eleven causes of action or, alternatively, that the Court make it clear which of the eleven causes of action are not properly before the court so that these issues may be presented properly to the lower court or adjudicated in another court without drawing the defense of ‘res judicata’ from respondents.” None of these issues are properly before us.
“The burden of affirmatively demonstrating error is on the appellant.” (Fundamental Investment etc. Realty Fund v. Gradow (1994) 28 Cal.App.4th 966, 971.) “An appellant must provide an argument and legal authority to support his contentions. This burden requires more than a mere assertion that the judgment is wrong. ‘Issues do not have a life of their own: If they are not raised or supported by argument or citation to authority, [they are] . . . waived.’ [Citation.] It is not our place to construct theories or arguments to undermine the judgment and defeat the presumption of correctness. When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) Additionally, arguments raised for the first time in the reply brief are untimely and may be disregarded. (Hernandez v. Vitamin Shoppe Industries, Inc. (2009) 174 Cal.App.4th 1441, 1461, fn. 10; Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 125 [“an appellant’s failure to discuss an issue in its opening brief forfeits the issue on appeal.”].) “ ‘Obvious considerations of fairness in argument demand that the appellant present all of his points in the opening brief. To withhold a point until the closing brief would deprive the respondent of his opportunity to answer it or require the effort and delay of an additional brief by permission. Hence the rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.’ ” (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Since Young fails to make any reasoned argument in support of these causes of action and did not raise these issues earlier and provides no reason for her failure to do so, they too are waived.
DISPOSITION
The judgment of dismissal is reversed. The order sustaining the demurrer is reversed solely as to the second cause of action for invasion of privacy by intrusion, and the case is remanded for further proceedings consistent with this opinion. We affirm the order sustaining the demurrer in all other respects. The parties are to bear their own costs on appeal.
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Siggins, P.J.
WE CONCUR:
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Fujisaki, J.
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Petrou, J.
Young v. Kenco, A153023
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