Opinion
C051070
12-6-2006
PHILIP BRUTMAN, Plaintiff and Appellant, v. UNION BANK OF CALIFORNIA, N.A. et al., Defendants and Respondents.
Plaintiff Philip Brutman sued defendants Union Bank of California, N.A., and its Mammoth Lakes branch manager, Vicki Russell, alleging they defamed him, invaded his constitutional right to privacy of his bank records, and negligently breached a duty not to disclose his financial information to third parties. In plaintiffs appeal from summary judgment entered in favor of defendants, he contends the trial court improperly concluded his slander and negligence claims were barred by the litigation privilege of Civil Code section 47, subdivision (b) (section 47(b) ). Plaintiff also contends the trial court erred in concluding he had no viable constitutional claim for invasion of privacy because his bank records were later lawfully disclosed pursuant to a search warrant in a (subsequently dismissed) criminal prosecution against plaintiff for passing a bad check (Pen. Code, § 476a). We shall affirm the judgment.
Section 47 provides in part: "A privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [in mandamus], [subject to specified exceptions inapplicable here]." (§ 47.)
Defendants do not assert as an alternative defense the qualified privilege of section 47, subdivision (c), for communications, without malice, between persons interested therein. We therefore do not consider the qualified privilege.
STANDARD OF REVIEW
A motion for summary judgment should be granted if the submitted papers show that "there is no triable issue as to any material fact," and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c), (section 437c).) A defendant meets his burden of showing that a cause of action has no merit if he shows that one or more elements of the cause of action cannot be established, or that there is a complete defense. (§ 437c, subd. (p)(2).) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of material fact exists. (Ibid.)
The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861.) When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true, or the defendant must show that an element of the claim cannot be established, by presenting evidence that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Ibid.; Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.)
We review the record and the determination of the trial court de novo. (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476; Kahn, supra, 31 Cal.4th at p. 1003.) "`First, we identify the issues raised by the pleadings, since it is these allegations to which the motion must respond; secondly, we determine whether the moving partys showing has established facts which negate the opponents claims and justify a judgment in movants favor; when a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue." (Waschek v. Dept. of Motor Vehicles (1997) 59 Cal.App.4th 640, 644.)
THE PLEADINGS
The operative pleading is the first amended complaint, apparently filed in early 2005. It asserted claims for (1) slander per se, (2) invasion of privacy, and (3) negligence. It alleged that, on or about April 11, 2002, third party Paul Payne (who is not a party to the lawsuit) asked Vicki Russell, vice president of Union Banks Mammoth Lakes branch, to disclose private information concerning plaintiffs bank accounts at Union Bank. Russell knew Payne was not a member of law enforcement. Russell knew or should have known the information was confidential and disclosure to third parties violated the law, plaintiffs rights, and the Banks policy. Russell nevertheless disclosed to Payne information concerning plaintiffs bank accounts. Russell additionally told Payne that plaintiff "Brutman did not pay many of the checks he issued." These words were false or exaggerated because, at the time they were uttered, plaintiff had paid all of the checks he had issued, except for one written to Payne, which was the subject of a dispute between them. Payne understood Russells statements to mean that plaintiff "just swiped the cash," with "no intentions [of] making that check good." Paynes belief led to criminal prosecution of plaintiff. Plaintiff believed the defamatory statements were republished, to his further reputational damage, because he later learned that other persons in Mammoth Lakes heard he "wrote bad checks" and "skipped town."
Filing dates are not stamped on most of the documents in the appendices provided by the parties as the record on appeal.
Plaintiff did not include a copy of the complaint in his appellants appendix on appeal. This defect would have been cause to reject the appeal. However, defendants provided a copy of the complaint in their respondents appendix. We must therefore consider the appeal.
In his first count, for slander per se, plaintiff alleged Russells statements were defamatory per se because they (1) accused plaintiff of violating Penal Code section 476a (passing bad checks); (2) accused plaintiff of lacking integrity; (3) exposed plaintiff to ridicule and distrust in his community; (4) caused him to be shunned or avoided in the community; and (5) had a tendency to injure plaintiff in his occupation. As result of the slander, plaintiffs business relationship with Payne was injured, and plaintiff now has a criminal record and a reputation for dishonest business practices. This is especially damaging in plaintiffs field — the hospitality industry — which involves large amounts of cash, credit cards, and expensive inventory. Plaintiff has suffered general damage to his reputation, emotional distress, lost employment/business opportunities, and incurred expenses in defeating the criminal prosecution.
Penal Code section 476a provides in part: "(a) Any person who . . . willfully, with intent to defraud, makes or draws or utters or delivers any check . . . upon any bank or depositary, or person, or firm, or corporation, for the payment of money, knowing at the time of such making, drawing, uttering or delivering that the maker . . . has not sufficient funds in, or credit with said bank or depositary . . . for the payment of such check, draft, or order and all other checks, drafts, or orders upon such funds then outstanding, in full upon its presentation, although no express representation is made with reference thereto, is punishable by imprisonment in the county jail for not more than one year, or in the state prison."
In a second count for invasion of privacy, alleging the same injuries, plaintiff alleged he had a reasonable expectation that his bank would not disclose his private financial affairs to third parties without his authorization, and defendants disclosure intruded into plaintiffs financial privacy.
In his third count for negligence and negligence per se, plaintiff alleged defendants breached a duty to safeguard his private financial information from disclosure to third parties, pursuant to (1) constitutional and common law, (2) state statute (e.g. Fin. Code, § 4050 et seq.), (3) federal statute (e.g. 15 U.S.C. § 6801 et seq.), and (4) federal regulation (e.g. 12 C.F.R. pt. 216). The duty was also imposed and acknowledged in Union Banks own written privacy policies.
Defendants filed an answer denying the complaints allegations and asserting defenses, including an unspecified privilege.
DEFENDANTS MOVING PAPERS
Defendants moved for summary judgment on the ground there were no triable issues of material fact. Defendants argued (1) defendants did not reveal any private information or make any defamatory statement; (2) even if Russell made the alleged utterance, the absolute privilege of section 47(b) bars the lawsuit; (3) even if the trial court viewed the absolute privilege as inapplicable (a) the defamation claim fails because the gist of the statement was true, (b) the alleged constitutional violation was not actionable because it was not serious, since the information was revealed in any event through the criminal case, and (c) plaintiffs claim that defendants caused the criminal prosecution is based on speculation.
Defendants separate statement of undisputed facts asserted:
In 1998, Payne and his partners leased a building to plaintiff for operation of a restaurant, with a monthly rent of $5,000. Both Payne and plaintiff did their banking at Union Bank. Plaintiffs October 2001 rent check was returned to Payne by the Bank, marked "NSF" (Not Sufficient Funds). This was not the first of plaintiffs rent checks to be returned NSF. Plaintiff acknowledged he wrote other NSF checks.
In December 2001, Payne made a complaint to the District Attorneys office about the October rent check, supplying the check to the District Attorney.
This sentence quotes defendants separate statement of undisputed facts, which plaintiff agreed was undisputed. However, defendants later in these proceedings suggested Payne still had the check in April 2002 and was merely trying to resubmit it when the allegedly defamatory conversation took place.
On April 11, 2002, Payne spoke about the check and the criminal investigation with Russell, who was vice president and branch manager of Union Banks Mammoth Lakes branch. Russell (according to her deposition) merely told Payne that plaintiffs account did not have sufficient funds to pay the check; she did not tell Payne that plaintiff did not pay many of the checks he issued.
Plaintiff does not dispute this fact, but his opposition papers unfortunately omitted this statement (defendants fact # 9) and consequently misnumbered all the remaining facts.
Defendants asserted plaintiffs bank accounts were the subject of a subpoena by the District Attorneys office. The supporting evidence was plaintiffs deposition testimony stating his accounts "were subpoenaed" in the criminal case. Defendants did not provide the date of any subpoena.
On April 18, 2002, the District Attorneys investigator, Scott Pollock, interviewed Payne.
Defendants separate statement of undisputed facts said the interviewee was Russell, but the supporting evidence showed it was Payne. Russell was interviewed in June, 2002. The investigators report does not show he asked her if she told Payne that plaintiff did not pay many of his checks. However, the report shows Russell told the investigator she would have to order plaintiffs bank statements from archives to determine if he had any other outstanding NSF checks that were not paid. She also said plaintiff "always made good" on the checks he asked the bank to "float," but she did not recall him asking for a float regarding the October 2001 check to Payne.
In his deposition, Payne said that he did not tell the investigator that Russell said, "in the end Brutman did not pay many of the checks he issued." (Defendants supporting evidence did not support this assertion. The cited page of Paynes deposition shows he was asked if Russell said the quoted words to him, and he said, "I think that that was the impression that I got from the investigation." Asked if that was an impression he got from the investigation being conducted by the District Attorneys office, Payne said, "Thats correct." Thus, Payne deftly avoided answering the question about Russell.)
Paynes assertion that he got that impression from the District Attorneys investigation does not exclude the possibility that he also got that impression from Russell, nor does it exclude the possibility that Payne got the impression from Russell first, passed it on to the prosecution, which reflected it back to Payne.
Payne made clear his contempt for this lawsuit, calling it ridiculous and unconscionable.
Plaintiff admits the possibility that he wrote other checks without sufficient funds, other than the October rent check.
Defendants asserted that the investigators compilation shows there were two other checks written in October 2001 without sufficient funds. (The document on its face does not appear to support this assertion. It perhaps shows one other check. Defendants cited no declaration, deposition or other evidence explaining the document as showing two other bad checks. The investigator testified about the document at the preliminary hearing but did not say anything about other bad checks. The investigators report said the November bank statement revealed "[illegible] deductions for charges related to non-sufficient funds.")
Defendants asserted that plaintiff contends Russell caused the criminal prosecution because the arrest warrant issued seven to 10 days after the conversation between Russell and Payne.
Defendants separate statement of undisputed facts asserted that the District Attorneys investigator separately interviewed Russell. The separate statement said nothing about the content of the interview. The cited evidence was the investigators preliminary hearing testimony that he asked Russell if she recalled whether plaintiff contacted her requesting a "float" with regard to the bad check that gave rise to this case, and she said no.
On July 8, 2002, the preliminary hearing in the criminal case took place. Plaintiff was bound over for trial. The criminal action was later dismissed, with plaintiff depositing $5,000 into escrow to satisfy a potential judgment in a civil action between him and Payne.
PLAINTIFFS OPPOSITION PAPERS
Plaintiff opposed the summary judgment motion. Plaintiffs response to the separate statement of undisputed facts agreed the background facts were undisputed, e.g., that plaintiff rented the property for a restaurant and used the same bank as Payne, that plaintiffs October rent check was returned NSF, that this was not the first rent check to be returned NSF, that plaintiff wrote other checks that were returned NSF, that plaintiff admitted the possibility there were checks other than the October rent check that were written without sufficient funds, that Payne made a complaint with the District Attorneys office in December 2001, that plaintiffs bank accounts were made the subject of a subpoena from the District Attorneys office, that a preliminary hearing in the criminal case was held on July 8, 2002, that the criminal court bound him over for trial, and that the criminal action was dismissed upon plaintiffs deposit of $5,000 into escrow pending the outcome of the civil action between him and Payne.
Plaintiff disputed that Russell in April 2002 merely told Payne that plaintiffs account lacked sufficient funds to pay the October check. Plaintiff submitted Paynes deposition testimony that he "may have" asked Russell whether plaintiff had written checks to other people with insufficient funds. Plaintiff also submitted the report of the District Attorneys investigator, describing an April 18, 2002, interview with Payne and stating in part:
"On April 11th, Payne contacted Union Bank in regards to Brutmans account and was told by bank employee, `Vicky, that at the end Brutman did not pay many of the checks he issued, leading Payne to form the opinion, `He just swiped the cash, he had no intentions, in my view, of making that check good, it wasnt good when he wrote it to me or it would have cleared and there was no ability on his part to make it good even though I have written him notices and letters and things of that nature."
Plaintiff also submitted (as support for "additional material facts") excerpts of the preliminary hearing transcript in the criminal case, wherein Payne admitted the statements attributed to him in the investigators report. Thus, Payne testified in the criminal case:
"Q. Let me read to you. `On April 11th Payne contacted Union Bank in regards to Brutmans account and was told by a bank employee "Vickie," Vickie is in quotes, `that at the end Brutman did not pay many of the checks he issued, leading Payne to form the opinion he just swiped the cash. "He had no intentions, in my view, of making that check good. It wasnt good when he wrote it to me or it would have cleared, and there was no ability on his part to make it good even though I have written him notices and letters and things of that nature." Did you make that statement?
"A. Yes, I did.
"Q. Was that true?
"A. It is true.
"Q. So this lady Vickie at the bank made that statement to you?
"A. It was confirmed to me that there were numerous checks during this period that were N.S.F., that werent good.
"Q. When you say confirmed to you, what does that mean?
The ensuing pages of the transcript of the preliminary hearing are not among the excerpts of the transcript submitted in this case and presented in appellants appendix and respondents appendix.
Plaintiff disputed that Payne testified he did not tell the investigator that Russell said plaintiff did not pay many of his checks. Plaintiff pointed out (as we described ante) that the evidence cited by defendants did not support their assertion, and Paynes testimony was non-responsive.
Plaintiff disputed that the investigators compilation showed two other NSF checks in October 2001. Plaintiff pointed out the cited evidence did not support defendants assertion.
In response to defendants assertion that plaintiff contended Russell caused the criminal prosecution because the arrest warrant issued seven to 10 days after the conversation that is the subject of this lawsuit, plaintiff disputed that he claimed Russell caused the criminal prosecution, stating instead that he testified there was a temporal proximity between Russells statements to Payne and the arrest warrant.
Plaintiff submitted a statement of "additional material facts," asserting, among other things:
(a) Union Bank often allowed customers to "float" checks, i.e., the bank would pay checks despite insufficient funds, advancing the necessary funds until the customer made a deposit. The Bank sometimes allowed plaintiff to do so, and he always "made good" on the checks. The Bank "did not take a loss on" plaintiff. To support these assertions, plaintiff submitted Russells deposition and the investigators report relating an interview with Union Bank Customer Service Manager Judy Haycook on June 4, 2002.
The cited investigative report said Haycook was unaware whether plaintiff requested a float with regard to the check at issue in this case. The investigator also reported that, in a June 2002 interview, Russell did not recall plaintiff requesting a float with regard to that check.
(b) The attack of September 11, 2001, seriously affected plaintiffs (restaurant) business. Supporting evidence was Paynes preliminary hearing testimony that the September 11 attack affected everyones business, particularly the tourism and hospitality business in which Payne and plaintiff engaged.
(c) Russell and Payne have a personal long-standing relationship, beyond the banker-customer relationship. Supporting evidence was Paynes deposition.
(d) Although Russell claimed her April 2002 conversation with Payne only responded to his inquiry whether there were sufficient funds for the check to clear at that time, Payne could not have been trying to re-resubmit the check in April 2002, because Payne surrendered the check to the District Attorney in December 2001. (As indicated, it is unclear whether the District Attorney kept the check.) Plaintiff also asserted Payne could not have been trying to cash the check because plaintiff closed his Union Bank accounts in December 2001. However, plaintiff cites no evidence that Payne knew of the closure.
(e) At the preliminary hearing, Payne confirmed that Russell said in April 2002 that plaintiff did not pay many of the checks he issued.
(f) Russell admits that privacy laws and bank policies prohibited her from disclosing to Payne any information about plaintiffs bank account. Supporting evidence was Russells deposition, in which she discussed privacy without specifying any statutes. When asked, "What are you allowed to say to a third party, other than law enforcement, about a customers account?" she answered, "Nothing." She also testified, "We cant even say if there is an account at the bank," and, "If [third parties] present a check for payment, we can verify if the funds are available or not. If they are N.S.F., we dont say they are N.S.F., we say their funds are not available at this time." That is all she is allowed to say.
(g) On July 16, 2002, the District Attorney served Union Bank with a search warrant for plaintiffs bank accounts. On July 17, 2002, the Bank sent plaintiff a letter notifying him of the warrant.
Defendants reply papers did not dispute the warrant but expressed uncertainty about the July 16, 2002, date (without citation to supporting evidence). However, the date appeared on the copy of the warrant submitted by plaintiff. Our own review of the record shows an ambiguity. The District Attorneys investigator testified at the July 8, 2002, preliminary hearing that he had obtained plaintiffs bank records. This testimony predated the date on the search warrant. Also, the investigators report, describing his June 4, 2002, interview with customer service manager Haycook, indicated the investigator already had possession of at least some of plaintiffs bank statements, because he asked her about them. The investigator also referred to a bank statement in his report of his April 18, 2002, interview with Payne, though it is not known when the investigator wrote his report. Defendants memorandum of points and authorities in the trial court suggested the District Attorney "already" had plaintiffs bank records when Russell and Payne had the conversation that is the subject of this lawsuit. However, defendants separate statement of undisputed facts merely said plaintiffs bank accounts were made subject to a "subpoena" by the District Attorney. No date was mentioned in the separate statement or in the supporting evidence (plaintiffs deposition testimony that his accounts were subpoenaed). Moreover, the investigators report of his June 11, 2002, interview with Russell said that Russell would have to order plaintiffs bank statements from archives to determine if he had any other NSF checks. This suggests the investigator did not yet have the records on June 11, 2002. We need not resolve the matter because defendants moving papers did not adequately present as undisputed fact that the investigator already had plaintiffs bank records when Russell and Payne had the conversation that is the subject of this lawsuit. Plaintiff submitted his own declaration that no warrant or subpoena had issued when that conversation took place.
(h) Defendants actions caused plaintiff to suffer damages apart from the criminal prosecution, including emotional distress and harm to reputation. Supporting evidence was plaintiffs declaration.
(i) Defendants had prevented plaintiff from obtaining evidence by stonewalling his discovery efforts.
Discovery motions overlapped the summary judgment motion. At the hearing, the court inquired whether plaintiff was seeking a continuance of the summary judgment motion under section 437c, subdivision (h). Defense counsel pointed out plaintiff failed to satisfy the statutory requirements for a continuance. Plaintiff has not included the discovery motions in the record on appeal. No issue about obstructed discovery is before us on this appeal (though plaintiff spices his appellate briefing with references to defendants refusal to cooperate with discovery demands).
DEFENDANTS REPLY AND OBJECTIONS
Defendants filed a reply, arguing in part that the investigators report was inadmissible hearsay (though defendants themselves had submitted it as an attachment to Paynes deposition, where Payne supposedly denied making the statement to the investigator). Defendants filed a response generally disputing the facts asserted by plaintiff. Defendants pointed out plaintiff had not made any request for a continuance to conduct discovery.
ORDER/JUDGMENT
After a hearing, the trial court apparently issued a written order granting summary judgment to defendants. The order stated the court found there was a material fact in dispute, i.e., whether or not Russell told Payne that plaintiff did not pay many of the checks he issued. The court acknowledged the dispute was central to the case and, rather than deny the summary judgment motion on that basis, the trial court proceeded to rule with the assumption (in plaintiffs favor) that Russell did utter the words alleged in the complaint.
Appellants Appendix contains only a copy of an order that bears a court filing stamp, but the signature line for the judge is blank.
The court said the following facts were undisputed:
1. In 1998, Payne and his partners leased a building to plaintiff for $5,000 per month, for operation of a restaurant.
2. Payne deposited the October 2001 rent check at Union Bank in Mammoth Lakes, where both he and plaintiff did their banking.
3. Payne received notice from his partner that the bank returned the check marked NSF.
4. The October rent check was not the first such rent check to be returned marked NSF.
5. Plaintiff acknowledged he wrote other checks that were returned NSF.
6. Paynes partner resubmitted the October check and it was again returned marked NSF.
7. In December 2001, Payne made a complaint to the District Attorneys office about the October rent check, supplying the check to the District Attorney.
8. At the time, Russell was a vice president and branch manager for Union Bank in Mammoth Lakes.
9. Plaintiffs bank accounts were made subject to a subpoena from the District Attorneys office for the investigation.
10. The District Attorneys investigator, Scott Pollock, separately interviewed Russell for his investigation.
11. On July 8, 2002, the preliminary hearing in People v. Brutman took place.
12. After hearing the evidence, the court bound plaintiff over for a criminal trial.
13. The criminal action was dismissed, with plaintiff depositing $ 5,000 into escrow to satisfy a potential judgment in the civil action between plaintiff and Payne.
Under a heading labeled, "The Litigation Privilege," the trial court said it was undisputed that plaintiff had issued checks with insufficient funds, other than the October 2001 rent check, but plaintiff contended Russells statement was false because plaintiff subsequently "made good" those other checks. The court concluded that, in any event, section 47s litigation privilege barred the slander and negligence claims, because "[i]t seems clear that PAYNE was in the process of marshaling evidence for presentation to the District Attorney."
The court said the litigation privilege did not bar plaintiffs claim for invasion of privacy, but the claim nevertheless failed on other grounds: The District Attorney subpoenaed plaintiffs bank records as part of the criminal investigation, and the information would most likely have been discovered during the ordinary course of litigation. In a footnote, the trial court rejected plaintiffs invocation of Californias Financial Information Privacy Act (Fin. Code, § 4052.5), because the Act was not in existence at the time at issue in this case.
Under the heading "Causation," the trial court concluded "[p]laintiff has failed to establish causation. No evidence of causation was offered by plaintiff other than the `temporal proximity between RUSSELLS alleged statement and the issuance of an arrest warrant for plaintiff. Under the circumstances of this case, this court cannot infer causation from the temporal proximity of those acts. It is most likely that the arrest warrant issued because plaintiff had delivered a $5,000 check to PAYNE drawn on an account with insufficient funds. The district attorney shall institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when he has information that such offenses have been committed. Government Code section 26501. It is presumed that official duty has been regularly performed. Evidence Code section 664. Plaintiff has produced no evidence to the contrary. In fact, the District Attorney presented the evidence to a magistrate at a preliminary examination which resulted in a finding of probable cause to believe that the crime of violating Penal Code section 476a was committed, as plaintiff was held to answer to that charge."
Government Code section 26501 provides in part: "The district attorney shall institute proceedings before magistrates for the arrest of persons charged with or reasonably suspected of public offenses when he has information that such offenses have been committed." (Gov. Code, § 26501.)
This fails to take into account prosecutorial discretion. (People v. Andrews (1998) 65 Cal.App.4th 1098, 1102 [prosecutor has discretion whether to prosecute, despite Gov. Code, § 26501].)
Though not conclusive, we note plaintiff did present evidence that defendants sometimes allowed him to write checks with insufficient funds and that events in September 2001 hurt his business.
Plaintiff appeals from the ensuing judgment.
DISCUSSION
I. Evidentiary Matter
In a footnote in their respondents brief on appeal, defendants say they do not challenge the trial courts apparent rejection of their hearsay objection to plaintiffs use of the investigative report of the District Attorneys investigator, Scott Pollock. However, later in their brief, defendants argue the report was inadmissible hearsay. We disregard this halfhearted argument, perfunctorily asserted, without designation as a discrete contention. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19.) Moreover, defendants themselves cited a portion of the same investigative report (attached to Paynes deposition excerpts) as evidence supporting their separate statement of undisputed facts in their moving papers. Additionally, the critical portion of the investigators report was used to question Payne in the (clearly admissible) transcript of the preliminary hearing in the criminal case. As indicated, plaintiff submitted excerpts of that preliminary hearing transcript, in which Payne admitted he made the statements attributed to him in the investigation report.
We need not address the evidentiary matter further.
II. Federal and State Statutes Re: Financial Privacy
Plaintiff says federal and state statutes strictly control the disclosure of banking information. However, with one exception (Code of Civ. Proc., § 1985.3, discussed post), plaintiff merely cites the statutes, without discussing their contents and without providing any legal analysis for their application to this case. We need not address points raised without legal analysis. (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3.) Plaintiffs failure to provide analysis is a problem in this case, because it appears the statutes do not apply.
Thus, plaintiff cites federal law (15 U.S.C. § 6802 et seq. [the Gramm-Leach-Bliley Act]; 12 C.F.R. pt. 216), which prohibits financial institutions from disclosing nonpublic financial information to nonaffiliated third parties without first giving notice to the consumer and opportunity to object. However, although defendants fail to respond to this point on appeal, it appears the federal law cited by plaintiff applies only to personal bank transactions, not commercial transactions, and plaintiff fails to show disclosure of any information from his personal bank accounts, as opposed to commercial accounts. We notice the criminal search warrant listed several Union Bank account numbers. However, the investigator testified at the preliminary hearing concerning one business account and said he did not know if plaintiff had other accounts at Union Bank.
Thus, section 6802 of title 15 of the U.S. Code provides that a financial institution may not disclose to a nonaffiliated third party "any nonpublic personal information, unless such financial institution provides or has provided to the consumer a [specified] notice . . . ." However, section 6809(4) of title 15 of the U.S. Code defines "nonpublic personal information" as personally identifiable financial information provided by a "consumer to a financial institution" or resulting from a transaction with the "consumer or any service performed for the consumer," or otherwise obtained by the financial institution. In turn, "consumer" means "an individual who obtains, from a financial institution, financial products or services which are to be used primarily for personal, family, or household purposes . . . ."
Here, on this record, we know only that plaintiffs bank account was used for his restaurant business — a commercial purpose. Plaintiff fails to show that the federal law applies to this case.
Plaintiff also cites the California Financial Information Privacy Act (Fin. Code, § 4050 et seq.), which limits disclosure of nonpublic personal information by financial institutions. (Fin. Code, § 4052.5.) However, we need not consider these state statutes, because they were not enacted until 2003, operative July 1, 2004, and thus were not in effect during the April 2002 conversation that is the subject of this lawsuit.
Plaintiff also cites a civil discovery statute (Code Civ. Proc., § 1985.3) establishing protective procedures concerning discovery of personal records, including bank records. However, plaintiff cites the discovery statute only in his discussion of the constitutional claim for invasion of privacy, which we discuss post. He does not assert or provide any analysis that the discovery statute provides a remedy that overrides section 47(b) with respect to the slander and negligence claims.
III. Slander and Negligence Claims
Plaintiff contends the trial court erred in applying the litigation privilege to the slander and negligence claims. We disagree.
A. Litigation Privilege
"Section 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to section 47(b), the privilege bars a civil action for damages for communications made `[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate], [subject to exceptions inapplicable here]. The privilege established by this subdivision often is referred to as an `absolute privilege, and it bars all tort causes of action except a claim for malicious prosecution. [Citations.]" (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).) "[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to `"assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing." [Citation.]" (Ibid., italics omitted.) "Although the statute originally was understood as applicable only to the tort of defamation, [California Supreme Court cases] have extended the privilege it provides to other potential tort claims. [Citations.] . . . [T]he only tort claim . . . falling outside the privilege established by section 47(b) is malicious prosecution. [Citation.]" (Id. at p. 361.)
Hagberg, supra, 32 Cal.4th 350, affirmed summary judgment in favor of a bank, on the ground that the absolute privilege of section 47(b) applied to the banks communication to the police that the plaintiff, who was a customer of the bank, was trying to cash a counterfeit check from a commercial institution. The bank had contacted the commercial institution and been told the check was invalid. While the bank supervisor was on the phone reporting the suspected criminal activity to the police, the banks security manager checked again with the commercial institution and was told the check was valid and the initial information was erroneous. (Id. at p. 356.) The Supreme Court held the section 47(b) privilege defeated the entire complaint, which included a claim of invasion of privacy, though the Supreme Court did not specifically discuss the privacy claim. (Id. at p. 357.)
"In its application to communications made in a `judicial proceeding, section 47(b) is not limited to statements made in a courtroom. Many cases have explained that section 47(b) encompasses not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit. [Citation.] As we have said, `it is late in the day to contend that communications with "some relation" to an anticipated lawsuit are not within the privilege. [Citation.] Rather, the privilege applies to `any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom [when] no function of the court or its officers is involved. (Silberg [v. Anderson (1990) 50 Cal.3d 205, 212]; see also PG&E v. Bear Stearns (1990) 50 Cal.3d 1118, 1132-1133, 1137 [the privilege encompasses a private entitys statements that instigate another person or entity to undertake litigation].) [The Supreme Court has] noted the application of the privilege to communications with `"some relation to a proceeding that is . . . under serious consideration;" to `"potential court actions;" and to `"preliminary conversations and interviews related to contemplated action," and . . . the privilege applies to communications made, prior to the filing of a complaint, by a person `meeting and discussing with potential parties the `merits of the proposed . . . lawsuit. [Citation.]" (Hagberg, supra, 32 Cal.4th at p. 361, italics omitted.)
The litigation privilege "is not restricted to the actual parties to the lawsuit but need merely be connected or related to the proceedings. [Citations.]" (Adams v. Superior Court (1992) 2 Cal.App.4th 521, 529.) Adams held section 47(b) barred an abuse of process claim against civil attorneys who filed unsuccessful motions in a criminal case in an attempt to preserve felony convictions in order to impeach the person in a civil lawsuit brought against that person by the attorneys clients involving a real estate transaction. (Id. at pp. 526, 529-530.) "The defendant may rely upon the defense of judicial privilege, Civil Code section 47, provided that there is some reasonable connection between the act claimed to be privileged and the legitimate objects of the lawsuit in which that act took place. The privilege is broadly applied to protect most publications within lawsuits provided there is some connection between the lawsuit and the publication. [Citation.] Any doubt as to whether the privilege applies is resolved in favor of applying it. [Citations.]" (Id. at p. 529.)
Applying these legal principles to this case, the litigation privilege applies to the slander and negligence claims. Defendants were custodians of information relevant to a criminal investigation and potential criminal action. Russell was a potential witness with respect to whether plaintiff requested a float for the subject check and whether he wrote other bad checks — information relevant under Penal Code section 476a, which prohibits persons from writing bad checks "willfully, with intent to defraud." Although she did not make the statement to law enforcement, but to the alleged victim in the criminal investigation, this case still falls within the broad scope of the privilege as described in the above-cited cases.
B. Plaintiffs Contentions Re: Litigation Privilege
1. General Contentions Re: Litigation Privilege
Plaintiff contends the litigation privilege cannot be applied when there is a direct dispute over the facts purportedly giving rise to the privilege, and there is a dispute here because Russell denies making the alleged utterance. We shall do as the trial court did and assume in plaintiffs favor, for purposes of this summary judgment case, that Russell made the alleged utterance. Thus, for purposes of this appeal, we treat the allegation as fact.
Plaintiff says there was also a dispute about the "context" in which the utterance was made. However, he fails to explain his point. Under a separate heading elsewhere in his brief, plaintiff says there is a dispute between Russell and Payne as to whether their conversation had anything to do with the criminal case. Russell claimed she merely told Payne the check still lacked sufficient funds. This argument appears in plaintiffs brief under a heading that the trial court erred by relying on Pettitt v. Levy (1972) 28 Cal.App.3d 484, in determining that section 47(b) shielded defendants from liability on the slander and negligence claims since Payne was in the process of marshaling evidence for presentation to the District Attorney. In Pettitt, the plaintiffs alleged the defendants had, through the preparation and submission of a false or forged document to a city council and planning commission, caused the council to deny the plaintiffs application for a zoning variance. The appellate court affirmed a dismissal upon a demurrer. (Id. at pp. 491-492.) Pettitt said: "To accomplish the purpose of judicial or quasi-judicial proceedings, it is obvious that the parties or persons interested must confer and must marshal their evidence for presentation at the hearing. The right of private persons to combine and make presentations to an official meeting and, as a necessary incident thereto, to prepare materials to be presented is a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings. To make such preparations and presentations effective, there must be an open channel of communication between the persons interested and the forum, unchilled by the thought of subsequent judicial action against such participants; provided always, of course, that such preliminary meetings, conduct and activities are directed toward the achievement of the objects of the litigation or other proceedings. [Citations.]" (Id. at pp. 490-491.)
Here, plaintiff argues Pettitt is inapposite because it clearly involved a quasi-judicial or other official proceeding, and the communication was inexorably connected to that proceeding. Plaintiff quotes from Pettitt: "As we have pointed out, the pleadings herein precisely direct and channel all of the preliminary activities and conduct toward the proceedings before the Fresno Planning Commission and City Council. [¶] We emphasize that the amended complaint herein does not allege, nor have appellants contended at any stage of this case, that there was any publication or use of the false or forged permit other than in connection with the proceedings before the Fresno City Planning Commission and City Council. Nor do they allege that any damage resulted other than by the denial of a zoning variance to them by reason of its use before those bodies. Our decision herein is necessarily limited to those alleged facts." (Pettitt, supra, 28 Cal.App.3d at p. 491.)
However, the circumstance that Pettitt is factually distinguishable does not render inapplicable the general legal principles quoted above.
Plaintiff argues the conversation between Russell and Payne could have been idle gossip. However, defendants presented evidence that Payne was talking about the criminal case, i.e., Payne said in deposition: "I think the direction that I was looking for from Vicky involved my conversation with Scott [the District Attorneys investigator], and Im a little fuzzy about the time frame here so bear with me. You know, this particular check was being investigated, and I may have given her a heads up about that; that the DA is going to be looking into the accounts." Plaintiff cites no evidence supporting the "idle gossip" theory. The circumstance that Russell denied the conversation (beyond her confirmation of the continued insufficiency of funds to cover the check) does not create a triable issue of material fact warranting reversal of the judgment.
Under a separate heading, plaintiff argues public policy compels that we deny the litigation privilege to a party who denies the facts that necessarily underlie application of the privilege. He points out Russell insisted she did not provide Payne with any information about plaintiffs account, other than to say he still lacked sufficient funds to honor the check he wrote to Payne. Plaintiff says she should not be able to deny the statement, yet claim the statement was privileged. However, under this heading, plaintiff cites no authority whatsoever, despite the existence of a whole body of law concerning the pleading of inconsistent defenses. (See, e.g., cases cited in 1 Schwing, Cal. Affirmative Defenses (2006 ed.) § 1:3, pp. 13-14 and 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, §§ 1013-1014, pp. 466-467.) Since plaintiff fails to provide any legal analysis or authority, we have no need to address this contention. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) We nevertheless note we are not impressed with plaintiffs comparison of this situation to that of someone claiming attorney-client privilege for a conversation they admit they had with someone who is not an attorney. Here, though Russell denied uttering the words, she allegedly uttered them to someone — a victim of an alleged bad check who had reported the alleged crime to the police — who was within the class of persons covered by the litigation privilege.
2. Breach of Independent Duties
Plaintiff argues the litigation privilege does not apply to disclosures of private information that breach a duty independent of the litigation that was the subject of the litigation privilege. He fails to show grounds for reversal.
As indicated, the litigation privilege applies to all torts except malicious prosecution. (Hagberg, supra, 32 Cal.4th at p. 360.)
Plaintiff cites Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296 (Wise), where a woman sued her drugstore for giving her private medical information to her former husband, who told the drugstore he needed the information for tax purposes but who used the information against the woman in a marital dissolution action and a Department of Motor Vehicles investigation. We held that, although the former husbands use of the information was absolutely privileged, the drugstores tortious conduct was not. (Id. at pp. 1304-1307.) Nonparticipants and nonlitigants to judicial proceedings are not protected by section 47(b). The drugstores disclosure did not satisfy any of the elements of the privilege: (1) it was not made in the course of a judicial or quasi-judicial proceeding; (2) the drugstore was not a litigant or other participant authorized by law; (3) the disclosure was not made to further the object of litigation (because the drugstore was told the information was for tax purposes); and (4) there was no logical relation to any ongoing or contemplated legal proceeding. (Id. at pp. 1304-1307.)
Plaintiff offers no analysis as to how Wise, supra, 83 Cal.App.4th 1296, applies to the case before us. He merely asserts that courts have declined to extend section 47(b) to cases involving the breach of a duty or obligation independent of the litigation, such as the unauthorized disclosure of private information by doctors, therapists and attorneys, or where the disclosure constituted a breach of some other independent duty. However, plaintiff overstates Wises holding, and Wise does not control this case. Wise said, "Had Payless provided the information to a litigant or attorney in order to further the object of litigation this case would stand in a far different posture, for there the paramount goal of encouraging freedom of access to the courts would be implicated. [Citation.]" (Wise, supra, 83 Cal.App.4th at pp. 1306-1307.) Here, although defendants were not litigants, they were potential participants in the criminal case as witnesses concerning plaintiffs bank records and matters going to the mens rea element of the criminal statute regarding willfulness and intent to defraud. Additionally, the disclosure was made to another potential witness — the crime victim. Thus, Wise does not assist plaintiff here.
Plaintiff also cites Wentland v. Wass (2005) 126 Cal.App.4th 1484, where we said the policies behind the litigation privilege would not be furthered by applying the privilege in a breach of contract case, where a managing partner claimed his partners breached a settlement agreement not to accuse the managing partner of wrongdoing regarding a general partnership. (Id. at pp. 1487, 1494.) Plaintiff fails to show how Wentland (or the case therein cited) help his case. He quotes from Wentland that the cause of action was not based on allegedly wrongful conduct during litigation, but rather was based on breach of a separate promise independent of the litigation. (Id. at p. 1494.)
Plaintiff fails to show that his allegations of breach of an independent duty render the litigation privilege inapplicable.
3. Protective Procedures
Plaintiff contends defendants are not entitled to invoke the litigation privilege, because they failed to comply with the protective procedures designed to avoid improper disclosure. However, plaintiff fails to develop his point into reversible error with respect to the slander and negligence claims. (We reject plaintiffs constitutional privacy claim post on grounds other than section 47(b).)
Plaintiffs cited authority regarding protective procedures is limited to inapplicable statutory obligations and constitutional claims.
Thus, plaintiff cites Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, which held that, as a prerequisite to invoking section 47(b), a psychotherapist had to comply with Evidence Code requirements for claiming the patients privacy privilege and had to resort to the statutory protective procedures when disclosure of a patients constitutionally protected material was contemplated. (Id. at pp. 846-848.) However, psychotherapists are subject to Evidence Code provisions requiring them to claim patients privacy privilege when a third party seeks disclosure. (Id. at pp. 845-846, citing Evid. Code, §§ 1014-1015.) Here, plaintiff cites no such obligation for banks.
In dictum, Cutter said, "Even without a statutory scheme similar to that for [psychotherapists] . . . , the California Supreme Court has required a similar procedure for notice and court review of the privacy aspects of a bank-customer relationship [in Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652 (Valley Bank)]." (Cutter, supra, 183 Cal.App.3d at p. 847.) Cutter observed Valley Bank said a bank customers financial dealings with the bank were entitled to constitutional protection that necessitated a careful balancing between privacy rights and civil litigants discovery rights. (Cutter, supra, 183 Cal.App.3d at p. 847.) Cutter said an application of the section 47(b) privilege that results in blanket immunity for disclosures that deliberately circumvent existing judicial procedures for evaluating constitutionally protected communications leaves no room for the careful balancing that must take place prior to possible infringement of the constitutional right. (Cutter, supra, 183 Cal.App.3d at p. 847.)
Plaintiff quotes from Valley Bank, supra, 15 Cal.3d 652: "Striking a balance between the competing considerations, we conclude that before confidential customer information may be disclosed in the course of civil discovery proceedings, the bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered." (Id. at p. 658.)
However, the balance being struck in Valley Bank was between the constitutional right to privacy and the right to discovery of relevant information in civil litigation. (Id. 15 Cal.3d at p. 657.) Here, the litigation privilege is at issue only with respect to slander and negligence. As we discuss post, plaintiffs constitutional claim fails for reasons other than the litigation privilege. Therefore, the citation of Valley Bank is unavailing with respect to slander and negligence.
Under this heading concerning protective procedures, plaintiff does not cite Code of Civil Procedure, section 1985.3, which was based upon Valley Bank, supra, 15 Cal.3d 652 and which states that (1) a person who wants to obtain personal records of a consumer from various record keepers (including banks) must do so through a subpoena with a supporting affidavit, a copy of which must be served on the consumer with notice of the right to object in court, and (2) before production of the records, the record keeper must receive a copy of the proof of service on the consumer or a written release signed by the consumer. Plaintiff cites this statute only under the heading addressing his privacy claim. Moreover, plaintiff does not argue or cite any authority concerning applicability of the statute to criminal cases or describing the remedy for a violation of the statute. We therefore need not address Code of Civil Procedure section 1985.3 with respect to the slander and negligence claims.
In this context, "consumer" is more broadly defined as "any individual, partnership of five or fewer persons, association, or trust which has transacted business with, or has used the services of, the witness or for whom the witness has acted as agent or fiduciary." (Code Civ. Proc., § 1985.3, subd. (a)(2).)
We conclude section 47(b) bars plaintiffs claims for slander and negligence. We need not address plaintiffs other contentions regarding slander and negligence, e.g., that he met his burden of establishing the elements of those claims.
IV. Constitutional Right to Financial Privacy
As indicated, the trial court concluded section 47(b) did not apply to the constitutional claim for invasion of privacy, but the court nevertheless concluded the privacy claim failed because the information most likely would have come out during the ordinary course of the criminal case, and plaintiff failed to show evidence that the privacy invasion caused the criminal prosecution.
The trial court also said the District Attorney was required to file the criminal charges based on Paynes complaint. As we noted in footnotes 14 and 15, ante, this is incorrect because the prosecutor has discretion. Nevertheless, this point does not detract from our affirmance of the judgment based on defendants showing that plaintiff had no evidence defendants caused the criminal prosecution.
Plaintiff argues disclosure of his bank records in the criminal case neither legally nor factually bars this civil privacy claim. Defendants challenge the trial courts ruling that section 47(b) does not apply to the constitutional claim.
We shall conclude (1) a likelihood of a separate lawful disclosure of private information can defeat a plaintiffs constitutional claim for invasion of privacy; and (2) such separate disclosure does defeat this plaintiffs claim because (a) the bank records were disclosed in the criminal case, (b) defendants submitted evidence that plaintiff could not show defendants caused the criminal prosecution, and (c) plaintiffs opposition submitted only speculation, not evidence, of causation. We therefore need not address whether section 47(b) applies to constitutional claims for invasion of privacy, an issue currently before the California Supreme Court in its review of our opinion in Jacob B. v. County of Shasta (2006) 137 Cal.App.4th 225 (review granted June 14, 2006).
A. Elements of Constitutional Privacy Claim
The California Constitution, article I, section 1, 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." (Italics added.) This constitutional provision creates a right of action against private as well as government actors. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15, 20 (Hill).)
The elements of a claim alleging an invasion of privacy in violation of the state constitutional right to privacy are: (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. (Hill, supra, 7 Cal.4th at pp. 39-40.)
Plaintiff had a legally protected privacy interest. Thus, in Valley Bank, supra, 15 Cal.3d 652, the Supreme Court held that, while no statutory or common law privilege existed with respect to confidential bank records, the right to discovery of bank records must be balanced against the customers right of privacy protected by the California Constitution. (Id. at pp. 656-658.) There, the bank initiated an action against bank customers to collect on a promissory note. The trial court ordered the bank to disclose information concerning bank transactions with persons who were not parties to the lawsuit, which was sought by the defendants as relevant to their defenses of estoppel and fraud. (Id. at p. 655.) The Supreme Court sent the case back to the trial court to conduct further proceedings to balance the right to discovery against the privacy right. (Id. at p. 658.)
Valley Bank, supra, 15 Cal.3d 652, 658, said the constitutional privacy right "extends to ones confidential financial affairs . . . ." (Ibid.) "`It cannot be gainsaid that the customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable. . . . [¶] A bank customers reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes. [Citation.] Similarly, it is the general rule in other jurisdictions that a bank impliedly agrees not to divulge confidential information without the customers consent unless compelled by court order. [Citations.]" (Id. at p. 657.)
At the time Valley Bank, supra, 15 Cal.3d 652, was decided, there was no statutory mandate for balancing the competing interests. (Id. at p. 657.) Valley Bank said the protection of the privacy right should not be left entirely to the election of third persons such as banks but, on the other hand, "relevant bank customer information should not be wholly privileged and insulated from scrutiny by civil litigants. The Legislature has not so directed, and [as stated in a prior Supreme Court case] `[i]n order to facilitate the ascertainment of truth and the just resolution of legal claims, the state clearly exerts a justifiable interest in requiring a businessman to disclose communications, confidential or otherwise, relevant to pending litigation. [Citations.]" (Id. at pp. 657-658.) "Striking a balance between the competing considerations," Valley Bank concluded, "before confidential customer information may be disclosed in the course of civil discovery proceedings, the bank must take reasonable steps to notify its customer of the pendency and nature of the proceedings and to afford the customer a fair opportunity to assert his interests by objecting to disclosure, by seeking an appropriate protective order, or by instituting other legal proceedings to limit the scope or nature of the matters sought to be discovered." (Id. at p. 658.)
Valley Bank, supra, 15 Cal.3d 652, has been credited as the genesis of the subsequently-enacted Code of Civil Procedure section 1985.3, which states that (1) a person who wants to obtain personal records of a consumer from various record keepers (including banks) must do so through a subpoena with a supporting affidavit, a copy of which must be served on the consumer with notice of the right to object in court, and (2) before production of the records, the record keeper must receive a copy of the proof of service on the consumer or a written release signed by the consumer. (Sasson v. Katash (1983) 146 Cal.App.3d 119, 124-125 [purpose of Code of Civil Procedure section 1985.3 was to protect consumers constitutional privacy rights pursuant to Valley Bank].)
We conclude plaintiff had a legally protected privacy interest in his financial information under the California Constitution.
As to the second and third elements of the constitutional privacy claim (reasonable expectation of privacy under the circumstances and severity of the violation), the circumstance that the information would have been revealed even without the alleged misconduct may suffice to defeat these elements. (Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 43.) Heller is distinguishable on its facts, in that it involved a plaintiff who, by placing her medical condition at issue in a medical malpractice lawsuit, had lowered her expectation of privacy of her medical records. Heller said that, even assuming a physician who was not a party to the lawsuit had violated statutes governing confidentiality of medical information by disclosing medical records to the malpractice insurer during the malpractice litigation, "the information that [the insurer] discovered in [conversations with the nonparty doctor] would have been inevitably discovered during the course of the [malpractice] litigation because [the nonparty doctor] was scheduled as an expert witness for the defense. [Fn. omitted.] Any expectation on plaintiffs part that such information would remain confidential was thus unreasonable." (Id. at pp. 43-44.)
Heller also said the disclosure of medical information could not be considered sufficiently severe to give rise to an actionable invasion of privacy. "Because the information would most likely have been discovered during the ordinary course of litigation," the disclosure of the information was not actionable. (Heller, supra, 8 Cal.4th at p. 44.) "`No community could function if every intrusion into the realm of private action, no matter how slight or trivial, gave rise to a cause of action for invasion of privacy. . . . Actionable 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." (Ibid.)
Plaintiff argues Heller, supra, 8 Cal.4th 30, did not address whether the plaintiff in that case could have maintained an action against the doctor who disclosed the records if he had disclosed them to a third party other than the insurer. Plaintiff argues Hellers facts are too distinguishable for the case to be of any assistance here.
Granted Heller, supra, 8 Cal.4th 30, is distinguishable on its facts, particularly the fact that there the plaintiff had put her medical condition in issue by filing a medical malpractice lawsuit. Nevertheless, the legal principles apply. Thus, in the case before us, plaintiffs bank records were disclosed pursuant to a search warrant (and perhaps also a subpoena) connected with the criminal investigation and prosecution. Thus, any unlawful disclosure by defendants about plaintiffs bank records is not actionable because, at the time of defendants disclosure in April 2002, the criminal matter was already under investigation by the District Attorneys office, and disclosure was likely to occur in the criminal case (and indeed did occur). Of course, defendants cannot invoke the separate lawful disclosure rule if they themselves caused the criminal prosecution, as plaintiff alleged (a point we address post).
As indicated, the parties agreed it was undisputed that plaintiffs bank records were "subpoenaed" in the criminal case; however, only a search warrant appears in the record on appeal. A subpoena and a search warrant are two different things. (Pen. Code, §§ 1326 et seq., 1523 et seq.) It is not clear why a search warrant would be necessary if the records were already obtained by subpoena. In any event, it is clear plaintiffs bank records were disclosed in connection with the criminal case.
We use the term "separate lawful disclosure." Heller, supra, 8 Cal.4th at page 44, described the test as whether the information "most likely" would have been discovered in a lawful manner but concluded in the case before it that the information would have been "inevitably discovered." (Heller, supra, 8 Cal.4th at p. 44.)
Plaintiff cites Ribas v. Clark (1985) 38 Cal.3d 355, for the proposition that a cause of action for invasion of privacy accrues at the moment of the violation (and therefore a subsequent lawful disclosure does not negate the claim). However, Ribas does not help plaintiff here. In Ribas, a husband sued a woman who (at his former wifes request) listened in on a telephone conversation between husband and former wife, in violation of the criminal statutes prohibiting wiretapping (Id. at p. 358; Pen. Code, § 630 et seq.) The woman later testified about the conversation in an arbitration proceeding in the former wifes (unsuccessful) action to set aside the marital dissolution on the ground of fraud. (Id. at p. 358.) The husband then sued the woman for damages for violation of the criminal statutes, invasion of privacy, and infliction of emotional distress. The Supreme Court held section 47(b) barred any claim for actual injury caused by the defendants testimony at the arbitration hearing, but the Penal Code authorized a $3,000 civil award regardless of actual injury, and because the right to such an award accrued at the moment of the violation, it was not barred by the litigation privilege. (Id. at p. 365.) The alleged violation occurred prior to any judicial proceeding. (Ibid.) Here, plaintiff is not seeking any statutory award, and more recent case law makes section 47(b) applicable to contemplated judicial action. (Hagberg, supra, 32 Cal.4th at p. 361.)
Plaintiff cites Kimmel v. Goland (1990) 51 Cal.3d 202, for the proposition that the privacy right protects more than the actual use of the private information. However, Kimmel merely held section 47(b) applies only to communications, not to noncommunicative conduct such as the act of tape-recording private conversations in violation of the criminal statutes, and the complaining party there sought statutory damages for the act of tape-recording, not actual damages for injuries arising from the publication or broadcast of the information contained in the conversations. (Id. at pp. 209, 212.)
Plaintiff cites Susan S. v. Israels (1997) 55 Cal.App.4th 1290, which held a crime victim had a cause of action for invasion of her constitutional right to privacy against a defense attorney who, without authorization, read and disseminated the victims confidential mental health records. The victims mental health provider sent the records directly to the defendant by mistake. (Id. at p. 1294.) The defendant was not liable for using the records at trial but could be liable for reading and disseminating them to an expert witness (noncommunicative conduct). (Id. at pp. 1294, 1299-1301.) The defense argued the privacy invasion was not serious because when the criminal court eventually held a hearing on the matter, it permitted the defense psychiatrist to testify about what he read in the medical records. (Id. at p. 1299.) The appellate court rejected the argument, noting the trial court based its ruling on the fact the records had already been disclosed, and "the cat [was] out of the bag." (Ibid.) There is no indication in this case that the criminal court authorized disclosure of plaintiffs bank records because the cat was already out of the bag.
Thus, plaintiffs cited authorities do not support his argument that, while Paynes use of the information was not actionable, defendants disclosure of the information was actionable.
Plaintiff argues policy considerations compel reversal of the judgment. He says it is undisputed that the District Attorney had to obtain a warrant for the bank records, and the bank had independent duties to notify plaintiff of this action. (The record shows the warrant was served on July 16, 2002, and the bank notified plaintiff in a letter dated July 17, 2002.) Plaintiff says that if he thought the warrant was overbroad, he could have sought judicial intervention. However, he cites no authority concerning the procedures in criminal cases, nor does he show he ever tried to object in the criminal court.
Plaintiff says that, similarly, in a civil action, Payne could not have obtained plaintiffs bank records without serving a subpoena under Code of Civil Procedure section 1985.3, and plaintiff would have had an opportunity to oppose or limit production of the records. However, plaintiff fails to provide any legal authority or analysis concerning remedies for violation of the discovery statute. Moreover, plaintiff fails to show how the discovery statute overcomes the conclusion that plaintiff has no viable claim due to inevitable discovery of the records in the criminal case.
Plaintiff argues our conclusion in this case violates public policy because "the possibility that a subpoena might be issued and might be complied with somehow reduces the ability of the holder of the information to insist that it will not be unlawfully disclosed to third parties." However, a "possibility" of separate lawful disclosure is not enough. To defeat the privacy claim, it must be the case that the information "would most likely have been discovered." (Heller, supra, 8 Cal.4th at p. 44.)
Plaintiff argues the information Russell disclosed was not disclosed in the criminal case, because Russells statements were false. Although this argument appears in plaintiffs discussion of the constitutional claim, it speaks only to the slander claim (which is barred by section 47(b)), because only the slander claim involves false utterances. If the information was false, then it was not from plaintiffs records.
We conclude inevitable discovery of plaintiffs bank records in the criminal case defeats his civil action against defendants for disclosure of the information to Payne — unless defendants caused the criminal prosecution (in which case discovery would not have been inevitable). We now turn to that question.
B. Inevitable Discovery/Causation in this Case
Plaintiffs complaint alleged, "Paynes erroneous belief [that plaintiff `swiped the cash and had no intention of making good on the check]—created by DEFENDANTS inaccurate and unlawful disclosure—led to the criminal prosecution of PLAINTIFF." This allegation appeared under the slander heading but was incorporated by reference into the cause of action for invasion of privacy. The privacy claim also alleged plaintiff has a criminal record "[a]s a proximate result of DEFENDANTS invasion of privacy . . . ."
Defendants moving for summary judgment bear the initial burden to prove an affirmative defense, disprove at least one essential element of plaintiffs cause of action, or show that an element of the cause of action cannot be established. (Code Civ. Proc., § 437c, subd. (o)(2); Sanchez v. Swinerton & Walberg Co. (1996) 47 Cal.App.4th 1461, 1465; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 585.) In order to show that plaintiff cannot establish an essential element, the defendant cannot merely argue that plaintiff lacks evidence. Rather, the defendant must present evidence that the plaintiff lacks evidence. (Aguilar, supra, 25 Cal.4th at pp. 853-855.)
Here, defendants sought to show evidence that plaintiff could not establish that defendants caused the criminal prosecution. This causal link was essential to plaintiffs case, not because of the question of damages (he alleges he was damaged apart from the criminal prosecution), but because this causal link would be necessary to overcome the inevitable discovery defense which defeats plaintiffs privacy claim.
Thus, defendants separate statement of undisputed facts (item 18) asserted, "[Plaintiff] contends that Russells statement to Payne caused the prosecution against him because the arrest warrant was issued 7 to 10 days after the conversation between Russell and Payne." Defendants cited plaintiffs deposition testimony, as follows:
"Q. What else did you — if, in fact, there was anything else that you understood that Vicky [Russell] had said?
"A. That whisper or two-minute conversation is all it took because within, what was it, seven to ten days later after the DA got the information from one of the most respected long-term bank representatives in the community of Mammoth Lakes that had been doing business here since I can remember, after she whispered that or said it, a two-minute conversation caused the district attorney to issue a warrant for my arrest.
"I believe on the following Friday and then the Friday — and then the Friday — Im sorry. On the following Friday the warrant was issued, and then on Tuesday the Roseville Police Department came to my house."
Defendants memorandum of points and authorities argued that plaintiff cannot prove defendants caused the criminal prosecution because his contention was based on sheer speculation arising from the timing of the arrest warrant.
Defendants showing was meager, because plaintiff was answering a question about what else Russell said, not what reasons he had to believe defendants caused the criminal prosecution. However, plaintiff does not challenge it on this basis. We conclude defendants showing sufficed to shift the burden to plaintiff.
In response to defendants separate statement asserting that plaintiff contended defendants caused the criminal prosecution based on the timing, plaintiff responded (in mislabeled item 17): "Disputed. [¶] [Plaintiff] does not state that Russells statement `caused the prosecution. He testified that there was a temporal proximity between Russells statements to Payne and the arrest warrant. [Citation to evidence.] There is no dispute about the close timing of these two events."
In his reply brief on appeal, plaintiff claims he "clearly" stated he is not claiming that the criminal prosecution was "entirely caused" by defendants, but that defendants "breathed life into a dormant investigation" and was "a contributing factor."
Plaintiff cannot change his theory of the case in his reply brief. (Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.)
Plaintiff took the untenable position that he was not claiming the utterance caused the prosecution, but a jury could so find based on the temporal proximity, because temporal proximity creates the inference of causation, thus precluding summary judgment. Plaintiff cites Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69. However, that case merely said that, in an employment discrimination case, the causal link to show retaliatory motive may be established by an inference derived from circumstantial evidence, such as the employers knowledge that the employee engaged in protected activities and the proximity in time between the protected action and the allegedly retaliatory employment decision. (Id. at p. 69.)
Plaintiffs reply brief similarly cites cases where temporal proximity was one factor to be considered. (E.g. People v. Gonzalez (1998) 64 Cal.App.4th 432, 441-442, citing Brown v. Illinois (1975) 422 U.S. 590 , which said that in determining whether a criminal defendants confession should be excluded as resulting from an unlawful arrest, the court should consider several factors, including temporal proximity between the arrest and the confession.)
Here, we have nothing more than an asserted proximity in time between defendants actions and the arrest of plaintiff. This is insufficient. Summary judgment opposition based on inferences must be reasonably deducible from the evidence, and not such as are derived from speculation or conjecture. (Joseph E. DiLoreto, Inc. v. ONeill (1991) 1 Cal.App.4th 149, 161.)
On appeal, plaintiff argues a jury could conclude from Russells perjury (denying the utterance) that she knew her disclosure was unlawful. However, in this appeal, we are assuming (as did the trial court) that Russell made the utterance. Thus, any perjury by Russell is not at issue in this appeal.
We emphasize we do not hold that defendants did not cause the criminal prosecution. We merely hold that, on this record, plaintiff was required to show some evidence, and he failed to do so. Although he claimed in the trial court that defendants were impeding his discovery attempts and reiterates those grievances on appeal, plaintiff did not seek a continuance in the trial court on that basis, and the matter is therefore not before us.
We conclude plaintiff has no viable claim for invasion of privacy, because his bank records were disclosed pursuant to a search warrant (and perhaps a subpoena) in the criminal case, such disclosure was inevitable, and plaintiff could not establish that defendants caused the criminal prosecution.
We also conclude the trial court properly entered summary judgment in favor of defendants.
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 27(a)(4).)
We concur:
SCOTLAND, P.J.
BUTZ, J.