Opinion
Opinion on pages 996-1031 omitted.
[201 Cal.Rptr. 722]John J. Hartford, San Jose, for plaintiff and appellant.
Gary C. Smith, Smith & Carlquist, Los Gatos, for defendant and respondent.
SCOTT, Acting Presiding Justice.
This appeal is from a judgment following an order sustaining a demurrer without leave to amend. We affirm.
The order sustaining the demurrer was filed in September 1980. The notice of appeal was filed in October 1980. No judgment was entered until October 1981. We treat the order sustaining the demurrer without leave to amend as including a dismissal. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920-921, 167 Cal.Rptr. 831, 616 P.2d 813.)
Hereafter, all statutory references are to the Penal Code.
I
Appellant Richard Ribas' amended complaint against respondent Joan Clark sets forth two causes of action. The principal allegations of the first cause of action, labeled "Invasion of Privacy," are as follows. When appellant and Alice Laughlin were divorced, a property settlement agreement was approved and incorporated into [201 Cal.Rptr. 723] the judgment of dissolution. Later, Laughlin consulted with an attorney about the tax consequences of the agreement. At Laughlin's suggestion, appellant called the attorney, who screamed at and verbally abused him. Shortly thereafter, Laughlin phoned appellant. Unbeknown to appellant, Laughlin and respondent Clark, her friend, had agreed that respondent would listen to the phone conversation on an extension telephone; without appellant's knowledge, respondent did so. During that call, appellant, still outraged by the attorney's conduct, told Laughlin about his conversation with the attorney.
Several months later, Laughlin brought an action to set aside the judgments of dissolution, on the ground that appellant had precluded her from securing counsel during the dissolution proceedings. Her action was heard in an arbitration proceeding. At that proceeding, respondent, called as a witness for Laughlin, testified that she had overheard the phone conversation between Laughlin and appellant, during which appellant "admitted precluding Laughlin from obtaining counsel in connection with" the dissolution.
Despite respondent's testimony, Laughlin did not succeed in her attempt to have the dissolution set aside; the arbitrator concluded that her case was "ill-founded and unmeritorious."
For purposes of analysis I have broken section 631, subdivision (a) into four subdivisions (i) to (iv). These subdivisions are not present in the section.
Appellant alleges that as a result of the "interception," "eavesdropping," "use of the information obtained," and "outrageous disclosure of the contents of said telephone conversation," he was exposed to contempt and ridicule, which caused him mental anguish and emotional distress.
The second cause of action, labeled "Outrage," incorporates by reference all of the allegations of the first, and only adds an allegation that as a proximate result of respondent's testimony, appellant "immediately experienced extreme disgust, revulsion, shock, and outrage."
Appellant contends that his complaint states a statutory cause of action under the Invasion of Privacy Act (Pen.Code, §§ 630-637.5), and common law causes of action for invasion of privacy and intentional infliction of emotional distress. At the outset we agree with respondent that the pleading is uncertain, as it cannot be ascertained whether it is bottomed on statute or upon common law. If both, as appellant argues, then each should have been separately stated. Nevertheless, we must still decide whether the complaint is sufficient under any theory. (See Berkeley Police Assn. v. City of Berkeley (1977) 76 Cal.App.3d 931, 942-943, 143 Cal.Rptr. 255.)
All statutory references are to the Penal Code.
The Majority concludes that Soles reflects the legislative intent of section 631 because the act has been amended more than once since Soles was decided without affecting the language of section 631. (See Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978, fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.) However, Tavernetti, which dispelled any notion that the prohibitions of section 631 are confined to wiretapping, also predates more than one amendment to the act which left section 631 unaltered. (See Stats.1978, ch. 1251, § 1, p. 4006; Stats.1980, ch. 880, § 1, p. 2761; Stats.1982, ch. 1519, No. 11 West's Cal.Legis. Service, p. 8220.)
II
Any person injured by a violation of the Invasion of Privacy Act may bring an action against the person who committed the violation. (§ 637.2.) First, appellant contends that his complaint alleges facts which constitute a violation of section 637 of the act. Section 637 provides in pertinent part: "Every person not a party to a ... telephonic communication who willfully discloses the contents of a ... telephonic message, or any part thereof, addressed to another person, without the permission of such person, unless directed so to do by the lawful order of a court, is punishable...."
The plain meaning of section 637 is that disclosure is unlawful unless done with the permission of the person to whom the communication is addressed. (See People v. Wilson (1971) 17 Cal.App.3d 598, 603, 94 Cal.Rptr. 923.) Consent of both parties is not required. (Cf. § 632, subd. (a).) The disclosure to which appellant objects was of statements spoken by him and addressed to Laughlin, who consented to that disclosure. Appellant has not stated a cause of action under section 637.
Next, appellant contends that he has alleged facts constituting a violation of section 631. Subdivision (a) of that section provides, in relevant part, that a person is guilty of a crime who (i) intentionally taps or makes "any unauthorized connection" with any telephone instrument; (ii) "willfully and without the consent of all parties to [201 Cal.Rptr. 724] the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over such [telephone] wire, ... or is being sent from, or received at any place within this state"; (iii) "uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained"; or (iv) "aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done" any of the acts prohibited in the section.
For purposes of analysis we have broken section 631, subdivision (a), into four subsections, (i) to (iv). These subsections are not present in the section.
The Majority slides around this issue by stating that "the tariffs of a utility company are a proper subject of judicial notice" (at p. 725) but neither the trial court nor this court has taken judicial notice of what the tariff provides, if anything, in this aspect; nor is appellant's concession relevant.
Appellant contends that his complaint alleges several violations of section 631: respondent made "an unauthorized connection" with a telephone instrument; without the consent of all parties to a communication, she attempted to learn its content; and she attempted to use the information gained thereby at the arbitration proceeding. Relying on People v. Soles (1977) 68 Cal.App.3d 418, 94 Cal.Rptr. 328, respondent argues that section 631 does not apply to the use of an extension telephone.
The language of section 631 has been described as, in some respects, "patently ambiguous." (People v. Wilson, supra, 17 Cal.App.3d at p. 602, 94 Cal.Rptr. 923.) More than one court has attempted to dissect section 631 to ascertain precisely what the Legislature has forbidden (see, e.g., Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 191-194, 148 Cal.Rptr. 883, 583 P.2d 737 [disclosure of contents of private conversation, intercepted by means of intentional wiretap, is illegal under § 631 even if initial wiretap was lawful conduct by phone company lineman]; Warden v. Kahn (1979) 99 Cal.App.3d 805, 811-812, & fn. 3, 160 Cal.Rptr. 471; see also Vannier v. Superior Court (1982) 32 Cal.3d 163, 175, 185 Cal.Rptr. 427, 650 P.2d 302 [§ 631 "forbids wiretapping"] ), but none of those cases involved an extension telephone. In People v. Soles, supra, 68 Cal.App.3d 418, 136 Cal.Rptr. 328, however, the use of an extension telephone was at issue. A motel manager eavesdropped on a conversation by staying on the line after connecting an incoming call with a motel occupant's telephone. Information thus obtained was apparently relayed to police officers. The court held that section 631 did not prohibit that conduct. (Id., at p. 420, 136 Cal.Rptr. 328.)
When a statute has been construed by judicial decision, that construction becomes a part of the statute. (People v. Hallner (1954) 43 Cal.2d 715, 721, 277 P.2d 393.) Furthermore, the Legislature is presumed to have knowledge of existing judicial decisions. The failure of the Legislature to change the law in a particular respect when the subject is generally before it, and changes in other respects are made, is indicative of an intent to leave the law as it stands in the respects not changed. (Bailey v. Superior Court (1977) 19 Cal.3d 970, 977-978, & fn. 10, 140 Cal.Rptr. 669, 568 P.2d 394.) The Invasion of Privacy Act, of which section 631 is a part, has been amended more than once since Soles was decided. Although the Legislature has made additions to the act, it did not alter section 631. (See Stats.1978, ch. 1251, § 1, p. 4066; Stats.1980, ch. 880, § 1, p. 2761; Stats.1982, ch. 1519, No. 11 West's Cal.Legis. Service, p. 8220.) Moreover, section 631 is a penal statute; therefore its "patently ambiguous" language should be interpreted in favor of the alleged violator, here respondent. (Warden v. Kahn, supra, 99 Cal.App.3d at p. 812, fn. 3, 160 Cal.Rptr. 471, and cases cited therein.) We conclude, therefore, that notwithstanding the brevity of its discussion, Soles accurately reflects legislative intent, and that neither listening to a conversation on an extension telephone nor disclosing the content of a conversation overheard thereby, with the consent of one of the parties, is prohibited by section 631.
Furthermore, a judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any grounds stated in the demurrer, [201 Cal.Rptr. 725] whether or not the court acted on that precise ground. A general demurrer such as respondent's searches the complaint for all defects going to the existence of a cause of action, and places at issue the legal merits of the action on the assumed facts. (Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.) It is well settled that a complaint may be read as if it included relevant matter subject to judicial notice, and is thereby subject to attack on demurrer, even though the bare allegations of the complaint do not disclose the defect. (El Rancho Unified School Dist. v. National Education Assn. (1983) 33 Cal.3d 946, 950, fn. 6, 192 Cal.Rptr. 123, 663 P.2d 893; Pan Pacific Properties, Inc. v. County of Santa Cruz (1978) 81 Cal.App.3d 244, 255, fn. 2, 146 Cal.Rptr. 428; see Code Civ.Proc., § 430.70.) Subdivision (b) of section 631 provides in relevant part that the section shall not apply "... to the use of any instrument, equipment, facility, or service furnished and used pursuant to the tariffs" of a public utility engaged in the business of providing communications services and facilities. The tariffs of a utility company are a proper subject of judicial notice. (Vila v. Tahoe Southside Water Utility (1965) 233 Cal.App.2d 469, 471, 43 Cal.Rptr. 654.) Although respondent has failed to provide this court with any information about the tariffs of the telephone company, appellant in his opening brief acknowledges that there is no tariff which specifically places any restrictions on the use of extension telephones for overhearing conversations. (See Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1205-1206; see also Pacific Telephone and Telegraph Co. (1965) 64 Cal.P.U.C. 526, 534-535; Pacific Telephone & Telegraph Co. et al. (1967) 67 Cal.P.U.C. 528, 532-533.) Accordingly, the conduct complained of appears to be expressly excepted from the prohibitions of subdivision (a) of section 631, and the demurrer could have been sustained on that ground as well.
III
As we have mentioned, in his opening brief, appellant also argues that the demurrer should not have been sustained without leave to amend because respondent's disclosure at the arbitration proceedings constituted an invasion of his common law right of privacy, and gave rise to a cause of action for "outrage" and infliction of emotional distress. In response to this court's request, the parties have submitted letter briefs discussing the applicability of the privilege created by Civil Code section 47 to this disclosure.
Section 47 provides in relevant part: "A privileged publication or broadcast is one made--... [p] 2. In any ... (2) judicial proceeding, or (3) in any other official proceeding authorized by law...." The privilege conferred by the statute is absolute and unaffected by the presence of malice. Absolute immunity attaches if the publication (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objectives of the litigation; and (4) involved the litigants or other participants authorized by law. (Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 924, 148 Cal.Rptr. 242.) Appellant concedes that the arbitration proceeding at issue, which commenced as judicial arbitration, was a judicial proceeding within the meaning of section 47.
Although section 47 is part of the statutory law dealing with defamation, the privilege created therein is equally applicable to other actions, with the sole exception of an action for malicious prosecution. (Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.) The privilege applies to defeat tort actions grounded on numerous theories of liability other than defamation, including actions for intentional infliction of emotional distress. (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 640-641, 99 Cal.Rptr. 393; Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 125-126, 185 Cal.Rptr. 92 and cases cited therein; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390-391, [201 Cal.Rptr. 726] 182 Cal.Rptr. 438.) Moreover, according to the Restatement of Torts, the privilege also applies to the publication of any matter that constitutes an invasion of privacy. (Rest.2d Torts, § 652F, com. a. illus. 1.)
Appellant does not contend that respondent's disclosure had no logical connection to his former wife's action to set aside the dissolution, or that it was not made to achieve the objectives of that litigation. Instead, relying on Herzog v. "A" Company, Inc. (1982) 138 Cal.App.3d 656, 188 Cal.Rptr. 155, appellant argues that section 47 is inapplicable because respondent's communication was for tortious purposes. However, Herzog is inapposite. That case involves the applicability of the privilege to a letter threatening litigation; the court held that the privilege applies to such communications only when the litigation is being contemplated in good faith and for a legitimate purpose. (Id., at pp. 660-662, 188 Cal.Rptr. 155.) Nothing in Herzog alters the rule that the testimony of a party or a witness at a judicial proceeding is absolutely privileged, even if made with actual malice or with the intent to do harm. (See Pettitt v. Levy, supra, 28 Cal.App.3d at p. 488, 104 Cal.Rptr. 650.)
We conclude, therefore, that appellant's causes of action for invasion of his common law right of privacy and for infliction of emotional distress are barred by application of Civil Code section 47.
Judgment is affirmed.
BARRY-DEAL, J., concurs.
FEINBERG, Associate Justice, dissenting.
Assigned by the Chairperson of the Judicial Council.
I dissent.
Section 631, subdivision (a) of chapter 1.5 of the Penal Code 1 as relevant here, provides that a person is guilty of a crime who (i) intentionally taps or makes "any unauthorized connection" with any telephone instrument or (ii) "willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any such [telephone] wire, ... or is being sent from, or received at any place within this state" (emphasis added) or (iii) "uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained" or (iv) "aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done" any of the acts prohibited in (i) to (iii) inclusive. 2 Section 631, subdivision (b) provides in relevant part that section 631 "shall not apply" "(2) to the use of any instrument, equipment, facility or service furnished and used pursuant to the tariffs of such a public utility." [I.e., a public utility engaged in the business of providing communications services and facilities.]
1. Respondent argues that section 631 applies only to eavesdropping committed by an electronic amplifying or recording device relying upon People v. Soles (1977) 68 Cal.App.3d 418, 136 Cal.Rptr. 328.
In Soles a motel manager eavesdropped on a telephone conversation between the occupant of a motel room and some outside party by remaining on the line while he connected the room occupant with the third party. The court held that "Section 631 of the Penal Code ... has no application: it prohibits wiretapping and here there was no wiretap; the manager listened to the conversations by staying on the line after she had connected incoming calls with the telephone in the room." (At p. 420, 136 Cal.Rptr. 328.) That is the entire discussion of section 631.
Inferentially, of course, the court in Soles held section 631 prohibited wiretapping, only. To that extent, it would appear to be an ipse dixit with which we disagree.
It is true that section 631, subdivision (a) makes it a crime to wiretap. But if that is [201 Cal.Rptr. 727] all that it does, then what I designated as section 631, subdivision (a)(ii) and (iii) are meaningless and superfluous for wiretapping is explicitly proscribed in section 631, subdivision (a)(i). "To accept that concept would contravene the unambiguous language of section 631 and the clearly expressed purpose of the Legislature in enacting the Invasion of Privacy Act." (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192, 148 Cal.Rptr. 883, 583 P.2d 737. 3
2. Respondent argues that section 631, subdivision (a) does not apply because it only applies to a communication that is "in transit." Once a message is received, section 631, subdivision (a) can no longer apply. As authority, Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 125 Cal.Rptr. 306 is cited. Basically, Rogers held that a recording of a telephone conversation made by a party to the conversation without the knowledge or consent of the other party to the conversation is not a violation of section 631, subdivision (a) because section 631, subdivision (a) is aimed at the eavesdropper, i.e., a person who is not a party to the communication. To that extent, Rogers is not apposite. However, the Rogers court did, in purporting to analyze section 631, state that the statute, inter alia prohibited the obtaining of any information by "(3) reading, attempting to read, or learning the contents or meaning of a message while [it] is in transit; the recording rather transcribes the message as it is being received." (Rogers v. Ulrich, supra, 52 Cal.App.3d at p. 898, 125 Cal.Rptr. 306.)
I cannot understand the opinion in this aspect because the language quoted above from Rogers not only applies while the communication is "in transit," by the very language of section 631, subdivision (a)(ii) it applies when the communication "is being sent or received at any place within the state." Respondent, by listening in on the extension phone, was learning the contents of a communication while it was being received, without the consent of appellant, a party to the communication.
Finally, respondent argues that there is no violation of section 631, subdivision (a) because of the exemption in section 631, subdivision (b)(2) quoted above.
In our view, once a complaint makes out a violation of section 631, subdivision (a), the burden is upon the defendant to show that he comes within the exception of section 631, subdivision (b). How the respondent, by demurrer, could raise the exception, i.e., that the use of the extension phone by respondent was the use of an "instrument, equipment ... or service furnished and used pursuant to the tariffs" of the phone company is difficult to perceive. In any event, respondent did not properly raise the issue in the demurrer. 4
It is true, as noted by the Majority, that the provisions of section 631 have been described as ambiguous. (See Warden v. Kahn (1979) 99 Cal.App.3d 805, 811, 160 Cal.Rptr. 471; People v. Wilson (1971) 17 Cal.App.3d 598, 602, 94 Cal.Rptr. 923.) The Majority argues that since the statute is penal, any ambiguity should be construed in favor of the offender. (People v. Ralph (1944) 24 Cal.2d 575, 581, 150 P.2d 401.) It is also true, however, that the language of section 631 has been described as unambiguous. (Tavernetti v. Superior Court, supra, 22 Cal.3d 187, 193, 148 Cal.Rptr. 883, 583 P.2d 737.) And the Ralph doctrine "is only an aid to construction and cannot be invoked until the statute is shown to be ambiguous as applied to the particular [201 Cal.Rptr. 728] defendant." (People v. Alday (1973) 10 Cal.3d 392, 395, 110 Cal.Rptr. 617, 515 P.2d 1169, emphasis added.) The operative provisions of section 631, while no model of legislative precision, are not ambiguous as applied against respondent here. Nor, it should be emphasized are we concerned with a criminal prosecution.
By enacting section 632, the Legislature has prohibited use of recording devices to record confidential communications. Section 632 does not apply to the use of an ordinary extension phone, however, because an extension is not a "recording device." (People v. Soles, supra, 68 Cal.App.3d 418, 420, 136 Cal.Rptr. 328.) Thus, to except extension phones from purview of the act would invite anomaly: it seems nothing would prevent a party to a confidential communication from having a stenographer eavesdrop on an extension phone and transcribe the conversation verbatim. Did the Legislature, which enacted section 632, intend such a result? In view of the policy to protect the privacy of the citizens of this state expressed in section 360, we think not.
I hold therefore that appellant's first cause of action stated a claim for invasion of privacy under sections 637.2 and 631.
I would reverse.