Case Name: Baerwald v. President and Board of Trustees of Santa Clara College, et al.

Case No.: 18CV330215

This is a wrongful termination and defamation action brought by Jeffrey Baerwald (“Plaintiff”) against President and Board of Trustees of Santa Clara College and Santa Clara University (collectively “SCU”), Sophie Riesfield (“Riesfield”), Jeanne Rosenberger (“Rosenberger”), and Matthew Duncan (“Duncan”).

According to the operative First Amended Complaint (“FAC”), Plaintiff was a Jesuit employed by SCU as the Assistant Dean. He oversaw the Alcohol and Drug Program and Services, and analyzed years of accumulated data on the use of alcohol and drugs used by SCU students. This data revealed that over half of SCU’s students engaged in heavy alcohol use, the consequences of which negatively affected the health and safety of students. Plaintiff provided a report containing these findings to Duncan, Plaintiff’s direct supervisor, and Rosenberger, Vice Provost of Student Life and Dean of Students, in which he concluded that the strategies endorsed by them to combat these issues were ineffective and outdated. Duncan and Rosenberger thereafter attempted to discredit the report because it reflected poorly on their performance.

Around this time, Riesfield—a student who resided on campus in a residential hall where Plaintiff also lived—began making noise complaints about Plaintiff. In turn, Plaintiff filed grievances about Riesfield, accusing her of harassing and hostile behavior. On one afternoon in particular following a noise complaint, Plaintiff and Riesfield had a conversation in the hallway; unbeknownst to Plaintiff, she recorded that conversation on her phone.

Several days later, Duncan asked Plaintiff to meet with him. Duncan told Plaintiff that his conversation with Riesfield had been recorded and he made a copy of it. Mistakenly assuming the recording was made by a security camera, Plaintiff requested to view it. Duncan refused. Plaintiff’s employment with SCU was subsequently terminated due to a complaint by Riesfield that was supported by the recording. Duncan told Plaintiff that he and Rosenberger informed the President of SCU and Arthur Liebscher, Rector of the Jesuit community, of Plaintiff’s conduct and termination several days prior. The effect of doing so discredited Plaintiff and maligned his character.

Plaintiff later received a call from Father John Cecero, Plaintiff’s religious superior residing in New York. Father Cecero told Plaintiff he received a letter from Rosenberger making unfavorable allegations about him. During this conversation, Plaintiff discovered that the conversation with Riesfield had been recorded by her. Plaintiff did not obtain a copy of the letter sent to Father Cecero, but was told it stated he was unable to control his anger, had been reprimanded several times, and was unfit to perform tasks as Assistant Dean and a Jesuit. As a result, Plaintiff was forced to separate from the Society of Jesus resulting in the loss of his retirement benefits.

Plaintiff asserts the following causes of action: (1) violation of Penal Code section 632 against SCU, Riesfield, and Duncan; (2) wrongful termination in violation of public policy against SCU; (3) defamation against SCU and Rosenberger; and (4) invasion of Plaintiff’s right of privacy against SCU, Riesfield, and Duncan.

SCU, Rosenberger, and Duncan (collectively “Defendants”) presently demur to each cause of action. Plaintiff opposes the demurrer.

I. Merits of Demurrer
II.
Defendants demur to each cause of action on the ground of failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10, subd. (e).)

Defendants address the first cause of action for violation of Penal Code section 632 and the fourth cause of action for invasion of right to privacy jointly in their memorandum. The Court, however, will address them separately below since the claims are governed by different law.

A. First Cause of Action for Violation of Penal Code Section 632
B.
The first cause of action alleges Duncan and SCU violated Penal Code section 632 (“Section 632”) by re-recording and duplicating the confidential conversation between Plaintiff and Riesfield.

Section 632, part of California’s Invasion of Privacy Act, provides in pertinent part that “[e]very person who, intentionally and without the consent of all parties to a confidential communication . . . records the confidential communication” by “means of any electronic amplifying or recording device” shall be punished as specified. (Pen. Code § 632, subd. (a).) Penal Code section 637.2 authorizes a civil cause of action for any violation of Section 632.

Defendants assert the first cause of action fails because (1) Plaintiff did not have a reasonable expectation of privacy, and (2) Section 632 does not prohibit disclosure of information gathered in violation of its terms.

1. Reasonable Expectation of Privacy
2.
“Penal Code section 632 protects only confidential communications[.]” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 168, emphasis original.) The term “confidential communication” is defined in subdivision (c) of Section 632 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 any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Defendants contend Plaintiff did not have a reasonable expectation of privacy because he and Riesfield had an adversarial relationship. In support, Defendants rely on Safari Club Int’l v. Rudolph (2017) 862 F.3d 1113 (Safari) for the proposition that, where two people have an adversarial relationship, there can be no reasonable expectation of privacy between them. Defendants further contend that any expectation of privacy Plaintiff had was unreasonable when measured against the purpose of Section 632. To that point, Defendants assert Section 632 was enacted to protect personal liberties, and here Riesfield was a victim of Plaintiff’s misconduct.

For purposes of a demurrer, “the facts alleged in the pleading are deemed to be true . . .” (Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 958.) Here, the FAC explicitly alleges Plaintiff had a reasonable expectation of privacy. (FAC, ¶13.) When a complaint explicitly alleges the plaintiff had a reasonable expectation of privacy, this allegation is presumed true on demurrer. (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 118, fn. 10.) Accordingly, for pleading purposes, it cannot be concluded that Plaintiff did not have a reasonable expectation of privacy.

3. Secondhand Disclosure Not Prohibited
4.
Defendants argue they cannot be held liable under Section 632 because the statute does not prohibit disclosure of information gathered in violation of its terms.

“Although a recording preserves the conversation and thus could cause greater damage to an individual’s privacy in the future, these losses are not protected by section 632. Instead, section 632 protects only the speaker’s right to know and control the firsthand dissemination of the conversation as it is occurring.” (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1393, citation omitted) Thus, “Penal Code section 632 does not prohibit the disclosure of information gathered in violation of its terms.” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 167 (Lieberman).)

Although not explicitly stated, Defendants presumably intended to argue they cannot be held liable under Section 632 for later disclosing Riesfield’s recording of the conversation they did not record in the first instance, relying solely on Lieberman. In opposition, Plaintiff argues there is a distinction between the act of disclosing the contents of the recorded conversation and re-recording the conversation. Plaintiff states that Section 632 prohibits recording a confidential communication, and does not limit that prohibition to the first recording made at the time of the conversation. Plaintiff relies on Kimmel v. Goland (1990) 51 Cal.3d 202 (Kimmel) to conclude that Defendants engaged in similar conduct to the attorney in that case and violated the law by making a recording of a confidential communication, as prohibited by Section 632.

The Court finds Plaintiff’s argument persuasive. In Lieberman, the court held that Section 632 does not prohibit the disclosure of information gathered in violation of its terms. That case, however, does not address Section 632 in relation to the act of copying a recorded conversation. Here, Defendants allegedly re-recorded and duplicated a conversation. These acts are not addressed in Lieberman and Defendants therefore have not demonstrated that the Lieberman holding is controlling.

5. Conclusion
6.
Defendants’ demurrer to the first cause of action for violation of Section 632 on the ground of failure to state sufficient facts is OVERRULED.

B. Second Cause of Action for Wrongful Termination in Violation of Public Policy

The second cause of action for wrongful termination alleges SCU terminated Plaintiff in violation of public policy by relying upon and using the recorded conversation obtained in violation of Section 632.

A common law claim for wrongful termination in violation of policy is predicated on the principle that, “while an at-will employee may be terminated for no reason, or for an arbitrary or irrational reason, there can be no right to terminate for an unlawful reason or purpose that contravenes fundamental public policy.” (Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083, 1094.) An essential element of such a claim is that the termination was substantially motivated by a violation of public policy. (Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641.) The public policy must be tethered to fundamental policies delineated either in a constitutional or statutory provision. (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.)

Here, Defendant argues the FAC fails to establish Plaintiff’s termination violated public policy because the “allegations are untethered to any specific statutory provision.” (Memo., p. 17:12-13) In opposition, Plaintiff argues the public policy implicated here is embodied in Section 632.

The FAC states “SCU terminated Plaintiff in violation of public policy of the State of California by relying upon and using a recorded conversation obtained in violation of the Penal Code as basis for termination.” (FAC, ¶22.) Thus, Plaintiff’s claim is tethered to a specific statutory provision. Defendants do not explain how that allegation is insufficient; as such, its argument is unsubstantiated.

Accordingly, Defendants’ demurrer to the second cause of action on the ground of failure to state sufficient facts is OVERRULED.

C. Third Cause of Action for Defamation

The third cause of action for defamation alleges Rosenberger sent a letter to Father Cecero containing false and defamatory statements about Plaintiff, causing him to lose retirement benefits and suffer humiliation.

“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact which is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179.)

Defendants assert Plaintiff’s claim fails because their statements (1) were non-actionable opinions and (2) are protected by the common-interest privilege.

1. Statements of Opinion
2.
Defendants maintain the alleged defamatory statements are non-actionable opinions because they amount to a negative performance review.

“In determining whether disparaging remarks are actionable defamation . . . the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 527.) “ ‘[C]ourts distinguish between statements of fact and statements of opinion for purposes of defamation liability. Although statements of fact may be actionable as libel, statements of opinion are constitutionally protected.’ ” (GetFugu, Inc. v. Patton Boggs LLP (2013) 220 Cal.App.4th 141, 155, quoting McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.) Libel suits based on communications in employment performance reviews are strongly disfavored. (Jensen v. Hewlett-Packard Co. (1995) 14 Cal.App.4th 958, 964 (Jensen).) “The performance review is a vehicle for informing the employee of what management expects, how the employee measures up, and what he or she needs to do to obtain wage increases, promotions or other recognition. Thus, the primary recipient and beneficiary of the communication is the employee. Tangential beneficiaries are ordinarily, as in the case here, all part of a management group with a common interest, i.e., the efficient running of the business.” (Ibid.)

Defendants argue that their letter to Father Cecero constituted a “personnel action evaluating performance that was discussed with Plaintiff’s superiors,” thereby making their statements non-actionable opinions. (Memo., p. 18:8-10.) In support, Defendants rely on Jensen in which the appellate court held comments made on a performance evaluation are non-actionable statements of opinion “unless an employer’s performance evaluation falsely accuses an employee of criminal conduct, lack of integrity, dishonesty, incompetence or reprehensible personal characteristics.” (Id. at p. 965.) The court reasoned that the purpose of the performance evaluation was “as a management tool for examining, appraising, judging, and documenting the employee’s performance.” (Id. at p. 970.)

The Court is not persuaded the alleged defamatory statements originated in the context of a performance evaluation. The defamatory statements here derive from a letter Rosenberger sent to Father Cecero after Plaintiff’s termination. Although the letter contained statements related to Plaintiff’s employment, the circumstances surrounding the letter do not indicate it was written as part of a performance evaluation. First, the FAC alleges the letter was written after Plaintiff’s termination rather than during his performance. As such, Plaintiff did not even discover the letter’s contents until after he was fired and it was therefore not used to inform Plaintiff of management’s expectations, how his performance was regarded, or his potential for wage increases or promotions. Second, Plaintiff had no knowledge of the letter or its contents until Father Cecero contacted him after he was terminated. This was so because Defendants sent the letter directly to Father Cecero, who was not associated with Santa Clara University and who was therefore not a tangential beneficiary to any performance review.

Therefore, Defendants have not persuasively demonstrated the alleged defamatory statements were part of a performance review making them non-actionable.

3. Common-Interest Privilege
4.
Defendants argue Plaintiff’s defamation claim is barred by the common interest privilege because the alleged defamatory statements were made to those sharing a common interest.

Civil Code section 47, subdivision (c) prescribes the common interest privilege, which protects publications made, without malice, to an interested person “(1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”

Defendants maintain the common-interest privilege applies here because the alleged defamatory statements were only made to Plaintiff’s religious superior, Father Cecero, who shares common interests with them by virtue of their religious affiliation. Defendants add that the FAC does not allege any facts to overcome this privilege.

But Defendants provide no legal authority suggesting a religious affiliation is an appropriate basis for finding persons share a common interest under the particular circumstances presented in this case. Accordingly, Defendants have not substantiated their argument that the common-law privilege applies here. As such, there is no basis for concluding that the third cause of action appears from the face of the pleading to be barred by the privilege.

5. Conclusion
6.
In consideration of the foregoing, Defendants’ demurrer to the third cause of action on the ground of failure to state sufficient facts is OVERRULED.

D. Fourth Cause of Action for Invasion of Plaintiff’s Right of Privacy

The fourth cause of action alleges Defendants violated Plaintiff’s right of privacy by republishing the content of the recorded conversation and disclosing it to third parties.

Defendants assert Plaintiff’s claim fails for the following reasons: (1) Plaintiff has no cognizable privacy interest; (2) Plaintiff has no reasonable expectation of privacy; (3) Plaintiff did not allege any serious or offensive invasion; and (4) even if there is an actionable right to privacy, they had countervailing interests that cannot be overcome.

As a preliminary matter, there are two sources of authority for a right of privacy claim, particularly the California Constitution and common law. Plaintiff does not specify in the FAC whether his claim is predicated on one or the other, or both. These rights of privacy have different elements, as well as some parallel elements. (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 288.) Although not clearly articulated or organized, Defendants address both the constitutional and common law rights of privacy jointly in arguing that no claim has been stated. To provide proper context, the Court will first recite the law regarding each right of privacy and will then address each of Defendants’ arguments in turn.

1. Legal Principles re: Privacy Law
2.

a. California Constitutional Right of Privacy
b.
“Article I, section 1 of the California Constitution provides: ‘All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.’” (Hill v. Nat’l Collegiate Ath. Ass’n (1994) 7 Cal.4th 1, 15 (Hill).) The elements of invasion of the state constitutional right of privacy are: (1) a specific, legally protected privacy interest (informational or autonomy); (2) reasonable expectation of privacy on the plaintiff’s part; and (3) a serious invasion of that privacy interest. (Id. at pp. 39-40.)

Legally protected privacy interests are “generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (‘informational privacy’); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (‘autonomy privacy’).” (Hill, supra, 7 Cal.4th at p. 35.)

Turning to the second element, circumstances, customs, and practices can create or inhibit the reasonable expectations of privacy. (Hill, supra, 7 Cal.4th at p. 35.) “A ‘reasonable’ expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms.” (Id. at p. 37.) Whether the intrusion is voluntary is also a factor to be considered. (Ibid.)

With respect to the third element, “[a]ctionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.” (Hill, supra, 7 Cal.4th at p. 37.)

The California Supreme Court has stated that an invasion of privacy would not violate the constitutional right to privacy if justified by a competing interest. (Hill, supra, 7 Cal.4th at p. 37.)

c. Common Law Right of Privacy
d.
Under the common law right to privacy, there are “four distinct kinds of activities violating the privacy protection and giving rise to tort liability: (1) intrusion into private matters; (2) public disclosure of private facts; (3) publicity placing a person in a false light; and (4) misappropriation of a person’s name or likeness.” (Hill, supra, 7 Cal. 4th 1 at p. 24.)

“[N]ot every kind of conduct that strays from social custom or implicates personal feelings gives rise to a common law cause of action for invasion of privacy. The various branches of the privacy tort refer generally to conduct that is ‘highly offensive to a reasonable person,’ thereby emphasizing the importance of the objective context of the alleged invasion, including: (1) the likelihood of serious harm, particularly to the emotional sensibilities of the victim; and (2) the presence or absence of countervailing interests based on competing social norms which may render defendant’s conduct inoffensive, e.g., a legitimate public interest in exposing and prosecuting serious crime that might justify publication of otherwise private information or behavior.” (Hill, supra, 7 Cal.4th at pp. 25–26.)

“In determining the ‘offensiveness’ of an invasion of a privacy interest, common law courts consider, among other things: the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” (Ibid.

2. Analysis

a. Legally Protected Privacy Interest Under Constitutional Right of Privacy
b.
Defendants assert Plaintiff has not pleaded the first element of the constitutional right of privacy because he had no cognizable privacy interest.

Although Defendants’ argument is scant at best, they maintain there is no class of privacy that protects Plaintiff’s conduct and conversation. In support, Defendants cite Hill outlining the two classes of privacy interests: informational privacy protecting interests in precluding the dissemination of sensitive and confidential information, and autonomy privacy protecting interests in making personal decisions and conducting personal activities without observation, intrusion, or interference. (Hill, supra, 7 Cal.4th at p.35.) Here, Defendants argue Plaintiff’s interests do not fall into either class as he has not pleaded any facts showing his conversation or conduct was sensitive and confidential. Defendants conclude Plaintiff therefore has no privacy interest and fails to establish the first element of the state constitutional right of privacy.

The Court finds Defendants’ argument persuasive. Plaintiff has not alleged that his conversation with Riesfield falls under one of the two classes of recognized privacy interests: informational privacy or autonomy privacy. In regards to informational privacy, although Plaintiff alleges Defendants disseminated the contents of the conversation, he does not allege the conversation contained sensitive and confidential information. In fact, there are no facts in the FAC alleging what was said or discussed in the conversation with Riesfield. In regards to autonomy privacy, Plaintiff has not alleged any facts that would indicate his ability to make personal decisions or conduct personal activities without observation was implicated. In this case, Defendants themselves did not actually observe, intrude or interfere with Plaintiff’s ability to converse with Riesfield. They had no part in recording the conversation and only later received it by Riesfield’s doing. Accordingly, Plaintiff has not alleged a cognizable privacy interest.

For these reasons, Defendants’ argument is substantiated.

c. Reasonable Expectation of Privacy Under Both Rights of Privacy

d. Defendants maintain Plaintiff’s allegations do not permit an inference of any reasonable expectation of privacy and, in fact, show that he had none. Defendants raise three arguments in support of this contention: (1) the incident took place in a highly regulated community, (2) Plaintiff was on notice that his actions were being watched, and (3) Plaintiff’s expectation of privacy was unreasonable when measured against the purpose of the law.

(i) Highly Regulated Community

(ii) Defendants assert that because college campuses are highly regulated, Plaintiff had no reasonable expectation of privacy in his conversation with Riesfield.

In support, Defendants rely on Hill and Barbee v. Household Automotive Finance Corp. (2003) 113 Cal.App.4th 525 (Barbee). Defendants briefly discuss that in both cases the court held plaintiffs had no reasonable expectation of privacy due to their community (i.e. athletes playing intercollegiate sports at a university in Hill, and an employee engaging in an intimate relationship with a subordinate at work in Barbee). Defendants also rely on Evens v. Superior Court (1999) 77 Cal.App.4th 320, 324 (Evens) stating that a teacher’s communications and activities are never confined to the classroom. Defendants conclude that college campuses are likewise highly regulated communities and since Plaintiff both worked and lived on campus, his expectations of privacy were unreasonable.

The Court does not find Defendants’ arguments persuasive. Although somewhat unclear, Defendants seemingly suggest that teachers do not have a reasonable expectation of privacy when on campus. Defendants, however, make no attempt to limit the scope of this contention to the present case. Defendants cite several cases in which the court held the plaintiff did not have a reasonable expectation of privacy. These cases, however, do not address the privacy interest at issue here—whether a person has a reasonable expectation of privacy in his conversation with another.

First, in regard to Hill, the California Supreme Court held that because college athletes are regularly subjected to invasive activities that are “not shared by other students or the population at large[,] . . . athletic participation carries with it social norms that effectively diminish the athlete’s reasonable expectation of personal privacy.” (Hill, supra, 7 Cal.4th at pp. 41-42.) Second, the appellate court in Barbee held that there are many cases that “indicate that customs, practices, and physical settings, weigh heavily against finding a broadly based and widely accepted community norm that supervisors have a privacy right to engage in intimate relationships with their subordinates.” (Barbee v. Household Auto. Fin. Corp. (2003) 113 Cal.App.4th 525, 533.) Third, the appellate court in Evens held that a teacher had unreasonable expectations that her communications would be confined to the classroom because students will inevitably disseminate classroom communications and activities. (Evens v. Superior Court (1999) 77 Cal.App.4th 320, 324.)

None of these cases, however, address whether Plaintiff here had a reasonable expectation of privacy in a conversation that took place outside of the classroom with Riesfield, who was not his student. The cases cited by Defendants and the analyses undertaken by those courts were extremely fact dependent and specific to their particular scenarios. Here, Plaintiff was not an intercollegiate athlete at a university, an employee in a workplace, or a teacher in a classroom. There is no indication from the case law cited by Defendants that Plaintiff’s expectation of privacy was diminished by nature of the community in which it took place.

As such, Defendants’ arguments regarding a highly regulated community are unsubstantiated on this basis.

(iii) Notice

(iv) Defendants argue Plaintiff had no reasonable expectation of privacy because he had notice his actions were being watched.

Defendants state that notice of and consent to an impending intrusion can inhibit expectations of privacy, citing Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272, 293 (Hernandez) in support. They maintain that Plaintiff acknowledged he was on notice during his conversation with Riesfield by alleging that he assumed the conversation was captured by a security camera. Consequently, Defendants conclude Plaintiff’s expectation of privacy was unreasonable. In opposition, Plaintiff clarifies he did not actually see a security camera in the hallway while having the conversation with Riesfield. Instead, he only later speculated that when Duncan told him there was a recording of the conversation, it was by means of a security camera. (See Opp., p. 6:15-20.)

The FAC alleges that when Duncan told Plaintiff he had a recording of the conversation with Riesfield, “Plaintiff mistakenly assumed that the recording was made by one of the security cameras.” (FAC, ¶14.) When read in context, this statement indicates that Plaintiff only later assumed how the recording of his conversation was obtained. It does not clearly allege that there was indeed a camera in the hallway recording his conversation and that Plaintiff observed the camera while talking to Riesfield. Additionally under the rule in Hernandez, Plaintiff needed to consent to the impending intrusion in order to have no reasonable expectation of privacy. Accordingly, even if Plaintiff had seen a security camera while talking to Riesfield, there are no allegations that Plaintiff consented to having his conversation with Riesfield recorded.

As such, Defendants arguments as to notice are unsubstantiated.

e. Serious and Highly Offensive Invasion Under Both Rights of Privacy

f. Defendants argue Plaintiff has failed to plead any serious or offensive invasion because he has not alleged any public or widespread disclosure.

Defendants’ arguments implicate both the common law and state constitutional rights of privacy. Defendants cite Hill stating, “The common-law invasion of privacy disclosure of private facts ‘requires that the actionable disclosure be widely publish and not confined to a dew person or limited circumstances.’ ” (Opp., p. 15:1-2.) Defendants further cite Hill stating that under the constitutional right to privacy, a “ ‘less-than-public dissemination of information’ may suffice . . . generally only [in] the case when ‘professional or fiduciary relationships premised on confidentiality are at issue.’ ” (Opp., p. 15:2-3.) Defendants conclude the FAC alleges the disclosure was not serious nor offensive because it was not widely published and Defendants did not have a professional or fiduciary duty of confidentiality with Plaintiff.

The Court finds Defendants’ conclusion unsubstantiated. The state constitutional right to privacy requires a serious invasion of the implicated privacy interest. Under this cause of action, seriousness is measured by “the extent and gravity of the invasion.” (Hill, supra, 7 Cal.4th at p. 37.) Likewise, the common law cause of action for invasion of privacy requires an invasion that is highly offensive to a reasonable person. (Id. at 25-26.) To determine if an invasion is highly offensive, courts consider “the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder’s motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded.” (Ibid.)

In their memorandum, Defendants do not address any of these factors or considerations in attempting to negate the seriousness and offensiveness of their alleged invasion of Plaintiff’s privacy. Instead, Defendants only rely on citations from Hill. When the citations from Hill are read in context, however, it is apparent that the court there addressed wide publication as a requirement when discussing the tort of invasion of privacy by public disclosure of private facts. (Id. at 27.) There is no indication here that this tort is implicated. Accordingly, there is no requirement that the disclosure be widely published. Further, under the constitutional right to privacy, the court in Hill did not limit that right to disclosures involving those with professional or fiduciary relationships. The court merely mentioned these relationships as illustrative examples. Accordingly, neither of these considerations are factors used in determining whether an invasion is offensive or serious.

Defendants, therefore, have not supported their conclusion.

g. Countervailing Interests

h. Defendants assert they had a competing and compelling interest for violating Plaintiff’s right to privacy.

In support of their contention that they had a greater interest than Plaintiff, Defendants cite Hill stating that no violation exists if justified by one or more competing interests. Here, Defendants argue that as a university, they had a legitimate interest in protecting the safety and well-being of their students. Defendants, however, provide no authority indicating that a university’s interest in its students’ well-being outweighs that of their employee maintaining privacy in his conversations. (See Cal. Rules of Court, rule 3.1113(b) [a supporting memorandum must include a discussion of legal authority in support of the position advanced]; see also People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without citation to authority may be disregarded].) Because this is such a fact specific analysis, and there is no case law to support Defendants’ contention, the Court finds this argument unsubstantiated.

3. Conclusion

Although the claim is deficient to the extent it is predicated on the constitutional right to privacy relative to the first element, Defendants did not substantiate their position that no claim has been stated to the extent the claim is founded upon the common law right to privacy. Accordingly, the demurer to the fourth cause of action on the ground of failure to state fact sufficient facts is OVERRULED.