Case Name: Orr v. Traina, et al.
Case No.: 17CV315153

Defendants Valerie Traina (“Valerie”) and Alexandra Orr (“Alexandra”) (collectively, “Defendants”) move for summary judgment, or in the alternative, summary judgment in their favor and against plaintiff William Orr (“William” or “Plaintiff”).

I. Factual and Procedural Background

This is an action for invasion of privacy, among other things, by Plaintiff against his ex-wife, Valerie, and his daughter, Alexandra. According to the allegations of the operative complaint (“Complaint”), on February 16, 2017, Plaintiff was admitted to the hospital in Santa Cruz after suffering a stroke, which left him unable to perform certain physical movements and for some time affected his verbal and mental acuity and abilities. (Complaint, ¶ 6.)

At the time of his stroke, William and Valerie were in the midst of a highly-contested marital dissolution action, with a community estate valued at over one million dollars. (Complaint, ¶ 8.) Upon being informed of Plaintiff’s medical emergency, Valerie and Alexandra went to the hospital. (Id., ¶ 9.) After their arrival, Alexandra entered the emergency room and in Plaintiff’s presence, surreptitiously and unlawfully recorded him using a handheld recording device. (Id., ¶ 10.) Alexandra induced Plaintiff into making statements which were later used by Valerie to obtain a restraining order against him, which adversely affected him in the marital dissolution action. (Id., ¶ 15.) Plaintiff alleges on information and belief that as a result of the disposition of the foregoing action, Valerie transferred to Alexandra a number of valuable horses, the value of which is estimated at $400,000. (Id., ¶ 16.)

Based on the foregoing allegations, Plaintiff filed the Complaint on August 28, 2017, asserting the following causes of action: (1) conspiracy; (2) invasion of privacy/intrusion; (3) invasion of privacy/false light; (4) invasion of privacy/recording of confidential information (Penal Code §§ 632 and 637.2); (5) intentional infliction of emotional distress (“IIED”); (6) negligent infliction of emotional distress (“NIED”); (7) defamation; (8) violation of Civil Code § 1708.8; (9) fraud; (10) violation of the Discovery Act; and (11) punitive damages. On March 13, 2019, Defendants filed the instant motion for summary judgment, or in the alternative, summary adjudication of each of the claims asserted in the Complaint, as well as Defendants’ nineteenth affirmative defense that Plaintiff had no reasonable expectation of privacy. Plaintiff opposes the motion.

II. Defendants’ Request for Judicial Notice

In support of their motion for summary judgment/ adjudication, Defendants request the Court take judicial notice of the court order, dated October 18, 2018, granting their motion to have matters specified in their requests for admissions (“RFA”) propounded on Plaintiff deemed admitted. (See Declaration of Fred Gerbino in Support of Motion for Summary Judgment/Summary Adjudication (“Gerbino Decl.”), ¶ 3, Exhibit 2.) This item is a court record and thus a proper subject of judicial notice pursuant to Evidence Code section 452, subdivision (d). Accordingly, Defendants’ request for judicial notice is GRANTED.

III. Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

B. Analysis

The thrust of Defendants’ motion for summary judgment/adjudication is that pursuant to application of the standard articulated by the California Supreme Court in Flanagan v. Flanagan (2002) 27 Cal.4th 776 to the facts of this case, Plaintiff had no reasonable expectation of privacy while he was unknowingly being recorded by Alexandra at the hospital, and thus cannot succeed on any of his claims. Plaintiff contrarily insists that there is a triable issue of material fact regarding whether he had such an expectation and further, Defendants have not met their burden with respect to all of their claims as the tenth is predicated on entirely different conduct than Alexandra’s act of recording Plaintiff at the hospital.

As Defendants explain, they obtained an order from the Court on October 18, 2018, deeming as true matters specified in RFAs previously propounded by them on Plaintiff. “[A] deemed admitted order establishes, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Thus, the following facts have been deemed true and therefore cannot be disputed by Plaintiff in his opposition: Plaintiff was admitted as a patient to the hospital in Santa Cruz on February 16, 2017; while Plaintiff was a patient at the hospital, he was placed in a room with other patients; other individuals came into Plaintiff’s room, including Alexandra, other visitors and hospital personnel; while Plaintiff was a patient, he could hear other people talking in his room; while in his room, Plaintiff made verbal threats of harm to Valerie; and while Plaintiff was a patient, he knew other people could hear his conversations with Alexandra. (Gerbino Decl., Exhibit 2.)

All of Plaintiff’s claims but the ninth cause of action are predicated on Alexandra’s act of recording her father in the hospital. Plaintiff alleges that by recording him, Defendants violated Penal Code sections 632 (“Section 632”) and 637 (‘Section 637”), which are part of the California Invasion of Privacy Act (the “Privacy Act”), a “broad, protective invasion-of-privacy statute” enacted in 1967 “in response to what [the Legislature] viewed as a serious and increasing threat to the confidentiality of private communications resulting from then recent advances in science and technology that had led to the development of new devices and techniques for eavesdropping upon and recording such private communications.” (See Kearney v. Saloman Smith Barney Inc.(2006) 39 Cal.4th 95, 115-116.) Section 632 subdivision (a) provides, in pertinent part:

A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication … shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

(Emphasis added.)

Section 637.2 provides for a private right of action for violations under the Privacy Act. Per Flanagan v. Flanagan, a communication qualifies as “confidential” under Sections 632 and 637.2 where one of the parties to that conversation has an objectively “reasonable expectation” that no one is “listening in” or overhearing the conversation. (See Flanagan, 27 Cal.4th at 774-777.) “The issue of whether there exists a reasonable expectation that no one is secretly recording or listening to a conversation is generally a question of fact.” (Knight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377, 1396.) Thus, unless it is objectively unreasonable in a particular situation for a party to have a reasonable expectation that no one is secretly listening in on a conversation such that the issue can be decided as a matter of law, it is usually “for the jury to decide whether under the circumstance presented [the plaintiff] could have reasonably expected that the communications were private” and thus have engaged in a protected “confidential communication” under Section 632. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169.)

Defendants are essentially arguing, though they do state as much in these precise words, that the Court can decide whether Plaintiff had a “reasonable expectation” that his conversation with his daughter was not being overheard by others as a matter of law, i.e., that for him to have had such an expectation would be objectively unreasonable given the circumstances. Defendants note that it is undisputed that Plaintiff was aware that other people in the room could hear his conversation with Alexandra. Thus, they assert, he cannot establish that someone in his situation would objectively expect that no one else could overhear the conversation.

In his opposition, Plaintiff insists that there is a triable issue of material fact in this regard, and cites to his own declaration in support wherein he states that he believed his conversations in the hospital were privileged and confidential and that during the conversations he was induced to make statements against his own interest. (See Declaration of William Orr in Support of Opposition to MSJ/MSA, ¶¶ 10, 13.)

Plaintiff’s declaration is insufficient to raise a triable issue and the Court finds that Defendants have demonstrated that, as a matter of law, Plaintiff did not have a reasonable expectation this his conversation with Alexandra was not being overheard given his admission that he knew that other people in his room could hear that conversation. Whether or not Plaintiff was induced to make the statements that he made is irrelevant to the issue of whether he had a reasonable expectation that the conversation could not be overheard by others. Plaintiff’s other invasion of privacy claims, i.e., the second and third, although not based on statute, similarly fail because of this lack of reasonable expectation. (See Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [stating that necessary element of invasion of privacy claim is a “reasonable expectation of privacy in the circumstances”].) Thus, the Court finds that summary adjudication of the second, third and fourth causes of action in Defendants’ favor is warranted.

The same cannot be said, however, with respect to the remaining claims asserted in the Complaint. The Court agrees with Plaintiff that Defendants have not met their burden of proof on these claims merely by establishing that he did not have a reasonable expectation that the subject conversation was not being overheard by others because the other claims have entirely different elements than the invasion of privacy causes of action. To reiterate, in order to meet his initial burden, a defendant moving for summary judgment must show that either (1) one or more elements of the cause of action cannot be established, or (2) there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Defendants fail to articulate how the lack of a reasonable expectation of privacy is an element of the remaining claims at issue or a complete defense thereto. Consequently, they are not entitled to summary adjudication of these claims, nor are they entitled to summary adjudication of their nineteenth affirmative defense that the lack of a reasonable expectation of privacy is a complete defense to all of Plaintiff’s claims.

Therefore, Defendants’ motion for summary judgment is DENIED. Defendants’ alternative motion for summary adjudication is GRANTED IN PART and DENIED IN PART. The motion is GRANTED as to the second, third and fourth causes of action and otherwise DENIED.