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Court of Appeal, Second District, Division 1, California.

Mark SANDERS, Plaintiff and Appellant, v. AMERICAN BROADCASTING COMPANIES, INC., et al., Defendants and Appellants.

Naras F. KERSIS, Plaintiff, v. CAPITAL CITIES/ABC, INC., et al., Defendants.

No. B094245.

Decided: January 31, 1997

Christensen, White, Miller, Fink, Jacobs, Glaser & Shapiro, Shari Cohen Rosenman;  White, O'Connor, Curry & Avanzado, Andrew M. White and Michael J. O'Connor, Los Angeles, for Defendants and Appellants. Neville L. Johnson & Associates and Neville L. Johnson for Plaintiff and Appellant.

Stacy Lescht, an American Broadcasting Companies, Inc. (ABC) reporter, answered an employment ad for a business providing telephone psychic advice to callers for $3.95 per minute.   Despite her professed lack of relevant experience or training, the business hired Lescht as a “tele-psychic.”   Lescht secretly video-taped the business' operations as part of an ABC investigation into the tele-psychic industry.   Lescht worked at one of many open, three-sided cubicles in a large room with many other tele-psychics.   Five feet high partitions divided the cubicles.   A standing adult could see the whole room, including into most cubicles, between which conversations could be overheard.   Lescht secretly videotaped two conversations with tele-psychic Mark Sanders, one at Lescht's cubicle, one at Sanders'.   ABC televised a six-second portion of one of Lescht's secretly videotaped conversations with Sanders as part of a “PrimeTime Live” broadcast.

Sanders sued Lescht and ABC, alleging several causes of action.   Before trial, the trial court dismissed all but one of Sanders' causes of action, finding the broadcast true as to Sanders and legitimately newsworthy.   Only Sanders' invasion of privacy cause of action went to trial.   Despite Sanders' testimony that he thought his conversations with Lescht were confidential, a jury found Sanders did not have an objectively reasonable expectation the conversations were confidential.

Nonetheless, the trial court, over defendants' objection, then instructed the jury sua sponte regarding a “sub-tort” of “the right to be free of photographic invasion.”   The jury returned a verdict for Sanders.   Including an attorney fee award, the trial court entered a $1.2 million judgment for Sanders.   Defendants appeal, arguing there is no such sub-tort, and, as a matter of law, all invasions of privacy require that the plaintiff reasonably expect the conversation will be confidential.   Defendants claim the jury finding that Sanders lacked an objectively reasonable expectation of confidentiality bars his recovery.   Sanders responds the sub-tort exists and protects against secret videotaping of conversations where one participant expects the conversations will be confidential, even where those expectations are not objectively reasonable.

We agree with defendants the jury finding that Sanders lacked an objectively reasonable expectation of privacy bars any recovery.   We reverse and remand the case for the trial court to enter judgment for defendants.1


We begin by noting that Sanders' only cause of action remaining at trial was invasion of privacy.   The trial court's sub-tort of invasion of the right to be free of photographic invasion was derived from the invasion of privacy tort.   There was no defamation, false light, or related cause of action.   Likewise, there was no cause of action for trespass or fraud.   Thus, our analysis is limited to the invasion of privacy tort, and whether that theory contains a sub-tort of the right to be free from photographic invasion.

Without objection from Sanders, the trial court instructed the jury consistent with Penal Code section 632.2  Subdivision (a) of that section provides, in relevant part, that “[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device ․” is guilty of a crime.  (Emphasis added.)   Subdivision (c) of that section defines “confidential communication,” in relevant part, as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering ․ or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”  (Emphasis added.)

Section 632 is part of Chapter 1.5 (§ 630 et seq.), entitled “Invasion of Privacy.”   Section 630 states in relevant part:  “The Legislature hereby declares that advances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society.  [¶]  The Legislature by this chapter intends to protect the right of privacy of the people of this state.”  (Emphasis added.)

 Article I, section 1 of the California Constitution expressly includes a right of privacy among the people's inalienable rights.   Defendants claim section 632's exclusion of objectively non-confidential communications from the proscription against electronic eavesdropping also applies to the tort of invasion of privacy.   Sanders claims, however, that the trial court correctly fashioned a sub-invasion of privacy tort, invasion by surreptitious photography.   Sanders claims this sub-tort lies if the person photographed does not subjectively intend that his communication be photographed, even if the communication occurs without an objectively reasonable expectation of privacy.

 As stated in our introduction, we agree with defendants.   Initially, we quickly dispose of a few non-issues suggested by Sanders.   First, by definition no one consents to being secretly photographed.   If Sanders were correct, there could be no objectively reasonable expectation of confidentiality requirement for privacy invasions.   Second, Sanders suggests Lescht trespassed by falsely posing as an employee to gain access to an area not open to the public, and that Lescht committed fraud by not disclosing she was a reporter.   However, we repeat that neither trespass nor fraud causes of action were before the jury, which considered only an invasion of privacy tort.   Thus, we ignore cases cited by Sanders involving these irrelevant causes of action.  (See, among others, Baugh v. CBS, Inc. (N.D.Cal.1993) 828 F.Supp. 745.)   Third, we note the case implicates First Amendment freedom of the press issues, resolution of which requires care lest we improperly restrict press freedom.  (See Branzburg v. Hayes (1972) 408 U.S. 665, 681, 92 S.Ct. 2646, 2656-2657, 33 L.Ed.2d 626;  New York Times Co. v. Sullivan (1964) 376 U.S. 254, 270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686.)   Fourth, we reject Sanders' claim that private persons such as Lescht can violate the Fourth Amendment's prohibition on unreasonable searches and seizures, which applies only to government agents.  (See New Jersey v. T.L.O. (1985) 469 U.S. 325, 335, 105 S.Ct. 733, 739, 83 L.Ed.2d 720.)   Fifth, we reject Sanders' request to augment the record to include briefs submitted by ABC in another case.   Sanders claims ABC took another position in that litigation.   Even if true (which ABC disputes), that would have no impact on our case, resolution of which is limited to our record.   Finally, we note the trial court limited its sub-tort to surreptitious photography, agreeing it could not apply to audio recording of conversations in situations where there was no objectively reasonable confidentiality expectation.

 Sanders does not seriously dispute that, in general, the invasion of privacy tort requires an invasion into a secluded area where one has an objectively reasonable expectation of privacy, that is, an objectively reasonable expectation of confidentiality.  “Based on our review of the Privacy Initiative [Cal. Const., art. I, § l], we hold that a plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following:  (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.  [¶] Whether a legally recognized privacy interest is present in a given case is a question of law to be decided by the court.  [Citations.]   Whether plaintiff has a reasonable expectation of privacy in the circumstances and whether defendant's conduct constitutes a serious invasion of privacy are mixed questions of law and fact.   If the undisputed material facts show no reasonable expectation of privacy or an insubstantial impact on privacy interests, the question of invasion may be adjudicated as a matter of law.  [¶] A defendant may prevail in a state constitutional privacy case by negating any of the three elements just discussed or by pleading and proving, as an affirmative defense, that the invasion of privacy is justified because it substantively furthers one or more countervailing interests․  [¶] The existence of a sufficient countervailing interest or an alternative course of conduct present threshold questions of law for the court.   The relative strength of countervailing interests and the feasibility of alternatives present mixed questions of law and fact.   Again, in cases where material facts are undisputed, adjudication as a matter of law may be appropriate.”  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40, 26 Cal.Rptr.2d 834, 865 P.2d 633, emphasis added;  Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1482-1487, 232 Cal.Rptr. 668.)

Sanders' real argument is that reporters (or anyone else) cannot secretly photograph (or its more modern cousin, videotape) someone without the subject's consent, even where the photography occurs under circumstances where the person photographed lacks an objectively reasonable confidentiality expectation.   However, none of the cases cited by Sanders support his argument.   First, all Sanders' cited cases unquestionably involve unauthorized invasions into private areas, such as a residence not advertised or used as a business (Dietemann v. Time, Inc. (9th Cir.1971) 449 F.2d 245, 246-249;  cf. Desnick v. American Broadcasting Companies, Inc. (7th Cir.1995) 44 F.3d 1345, 1352-1353), an apartment (Miller v. National Broadcasting Co., supra, 187 Cal.App.3d at p. 1486, 232 Cal.Rptr. 668), or changing areas (Doe by Doe v. B.P.S. Guard Services, Inc. (8th Cir.1991) 945 F.2d 1422), or closed rooms in which employees receive performance evaluations, as opposed to secret videotaping in open work areas (see Kemp v. Block (D.Nev.1985) 607 F.Supp. 1262;  PETA v. Bobby Berosini, Ltd. (1995) 111 Nev. 615, 895 P.2d 1269, 1279-1283.)   Such situations involve private areas where the subjects unquestionably, objectively and reasonably expected their conversations to be private and confidential.   Second, as noted above, many of Sanders' cases also involve trespass and fraud, not invasion of privacy, causes of action.   Sanders has not cited any cases, nor have we found any, that support the existence of his sub-tort of invasion of privacy by photography where the subject lacks an objectively reasonable expectation of privacy.

We sympathize with the trial court's concern about the proliferation of secret recording, with its implications for the loss of privacy.   However, given our discussion above, we decline to extend tort protection under an invasion of privacy, as opposed to a trespass or fraud, cause of action, to those secretly photographed who lack an objectively reasonable expectation of privacy, especially in the narrow factual and procedural context before us.   We leave it to the Legislature to debate the wisdom of any such protection.3


We reverse the judgment.   We remand the matter for the trial court to enter judgment for defendants, who are entitled to their costs.

I respectfully dissent.   The jury found that plaintiff had no objectively reasonable expectation that his conversations with Lescht were confidential.   The majority assumes that the lack of a reasonable expectation of informational confidentiality means nothing occurring in plaintiff's place of employment could be considered confidential, or private, from anyone.   As I will demonstrate, this is too narrow a view.

There are two distinct privacy interests recognized by the courts as worthy of protection from intrusion.   The first is “informational privacy”;  this prevents the improper collection and dissemination of private information.   The second interest is “autonomy privacy,” which prevents unwarranted interference with, intervention into or observation of private matters.  (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 23-27, 26 Cal.Rptr.2d 834, 865 P.2d 633;  Shulman v. Group W Productions, Inc. (1996) 51 Cal.App.4th 850, 872, 59 Cal.Rptr.2d 434, 446-448.)   While plaintiff could not reasonably expect the information disclosed to Lescht in conversation to be confidential and thus had no enforceable “informational privacy” interest, he may have retained an “autonomy privacy” interest.

“ ‘The protection afforded to the plaintiff's interest in his privacy must be relative to the customs of the time and place, to the occupation of the plaintiff and to the habits of his neighbors and fellow citizens.’ ”  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   The observation of an employee's performance or work-place discussion with a fellow employee of performance of his job generally is a private matter.   Businesses and even many agencies of the government go to great lengths to keep the general public from observing such things.   It therefore is not a matter of custom or habit that the general public or its media representatives observe employees' activities, including conversations, within the work place of an enterprise closed to the general public.

It is undisputed that the telephone psychic enterprise employing plaintiff was not open to the general public.   Had a member of the general public wandered into the work place, plaintiff undoubtedly could have objected to the presence of this person.   To that extent, at least, plaintiff had an exclusive right of occupancy in his work place (cf. Noble v. Sears, Roebuck & Co. (1973) 33 Cal.App.3d 654, 659-660, 109 Cal.Rptr. 269), even though the employer's agents could have invaded his work space and could even have photographed or videotaped him (cf. Shulman v. Group W Productions, Inc., supra, 51 Cal.App.4th at pp. 884-885, 59 Cal.Rptr.2d at pp. 454-456).   The limitations on plaintiff's expectation of privacy vis à vis his employer did not waive his privacy rights as to others.  (Ibid.;  Times Mirror Co. v. Superior Court (1988) 198 Cal.App.3d 1420, 1427-1428, 244 Cal.Rptr. 556.)

Plaintiff's exclusive right of occupancy as to members of the general public, such as defendants, suggests he had a reasonable expectation that the private matters occurring in his place of employment would be free from public observation.  (Cf. Noble v. Sears, Roebuck & Co., supra, 33 Cal.App.3d at pp. 659-660, 109 Cal.Rptr. 269.)   Moreover, Lescht had to employ deceit to gain entrance to the enterprise and to conversations with plaintiff, thus denying him any effective opportunity to consent to her activities.   That is, both he and his employer were deceived into not objecting to them.  (Id. at p. 660, 109 Cal.Rptr. 269.)   This reinforces the conclusion that plaintiff had a reasonable expectation of autonomy privacy in his work place.  (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 37, 26 Cal.Rptr.2d 834, 865 P.2d 633.)   In short, plaintiff had an interest in being free from unwarranted, i.e., public, observation of his work place performance and conversation.

Stated otherwise, plaintiff had a reasonable expectation that the public would not rubberneck as he performed his tasks or discussed their performance.  (Cf. Shulman v. Group W Productions, Inc., supra, 51 Cal.App.4th at p. 881, 59 Cal.Rptr.2d at p. 453.)  “[O]nce the ․ doors swing shut, the [plaintiff] can and should reasonably expect privacy from prying eyes․”  (Ibid.)  Accordingly, there is more at issue here than plaintiff's words.   Making and broadcasting a videotape is a form of public observation as well as public eavesdropping.

In instructing the jury on the “sub-tort” of freedom from photographic invasion, the trial court simply recognized that plaintiff had an “autonomy privacy” interest in addition to the more commonly recognized one of “informational privacy.”   Recognizing the legitimacy of plaintiff's expectation that his work activities would be free from observation does not threaten to restrict press freedom unduly.   Defendants could have broadcast the audio portion of the videotape only or could have broadcast the video portion as well while digitally obscuring plaintiff's features and thus protecting his autonomy privacy.

The jury reasonably could have found that defendants made an unwarranted and serious intrusion upon this separate interest.   By broadcasting videotape of plaintiff's conversations with Lescht without utilizing protective measures, defendants identified the speaker visually and made public his facial expressions and gestures.   These images gave a heft to defendants' broadcast that would otherwise have been lacking, just as they led to far greater embarrassment and distress for plaintiff than he otherwise would have suffered.

While the trial court's instruction was not strictly accurate in identifying a “sub-tort” of freedom from photographic intrusion, it was, under the facts and circumstances of this case, accurate enough in presenting the jury with a theory of autonomy privacy.   Accordingly, I would affirm the judgment.


1.   Because of our holding, we do not address Sanders' cross-appeal, or defendants' sanctions request based on their claim that the cross-appeal is frivolous.   Despite some hyperbolic language about the broadcast's falsity and the defendants' outrageous conduct, neither in his response brief nor in his cross-appeal does Sanders seriously challenge the finding that the broadcast was newsworthy and true as to him, the dismissal of his other causes of action, or the jury verdict that he lacked an objectively reasonable expectation that his conversations with Lescht were confidential.   As discussed in more detail below, Sanders does not seriously dispute the facts outlined above.

2.   Unless otherwise noted, all further section references are to the Penal Code.

3.   The dissent focuses on Lescht's deceit in misrepresenting herself to become an employee and Sanders' right to be free from unauthorized public observation while he worked.   Lescht was a fellow employee.   The case went to the jury on a single cause of action for invasion of privacy.

FOOTNOTE.  FN* The Supreme Court ordered that the opinion be not officially published.  (See California Rules of Court Rules 976 and 977.)

ORTEGA, Associate Justice.

MASTERSON, J., concurs.

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Docket No: No. B094245.

Decided: January 31, 1997

Court: Court of Appeal, Second District, Division 1, California.

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