TAUS v. LOFTUS
Filed 2/26/07
IN THE SUPREME COURT OF CALIFORNIA
)
v. )
Defendants and Appellants. ) Super. Ct. No. FCS021557
)
STORY CONTINUED FROM PART IV..
During one of the interviews and in the same published article, Cantrell, who is referred to in the article as foster mother, was also interviewed, and disclosed her observations of some highly personal and intimate facts about Tauss life, including her psychological condition, her relationship to her parents, and her adjustment to her new home. As Cantrell stated: When Jane first approached our family to come and live with us she had been in several group homes, foster homes, her dad had become ill and she had to be placed somewhere. This was real traumatic for Jane . . . . When she first moved in, she was tragically headstrong. She had come to a point where you could not tell her anything. She didnt have rules or regulations and wouldnt succumb to any. Jane had basically decided to do everything all by herself, and no one was going to tell her what, why, or anything anymore . . . and Jane . . . just want[ed] to give up, . . . she said, Im too chicken to commit suicide, but I just want out, I just, I want out, I cant take it anymore, because I dont know what happened to me when I was a little girl. Cantrell continued that she initiated Jane getting back in touch with her mother: Mother cried, and Jane cried, and Jane said It felt so good to have her hug me. I could tell that it was my mom. She then recounted how the relationship grew, but then, after her fathers death, some things began to go wrong. Jane experienced a few things that really upset her, and for no reason the mother would get really irate at her, and then just walk out of her life, and not call, and not come back. And Jane felt like a failure again, like something she had done, so Jane needed to know that there was nothing she had done. Cantrell opined during the interview that seeing the second video had been beneficial: I think this has been a beautiful closure.
Elizabeth Loftus, a psychology professor long critical of the idea of recovered memory, did research on this case and co-authored an article skeptical of Corwins conclusions entitled Who Abused Jane Doe? The Hazards of the Single Case History (May/June 2002) 26 Skeptical Inquirer 24, 37. Loftus was able, through lawful means, to discover that Taus was the Jane Doe of the Child Maltreatment article, in part because Corwin used Tauss first name and the city where she spent some of her childhood during a videotaped interview shown at a number of professional meetings. Loftus was able to contact and interview Tauss mother and Cantrell.
It is the latter interview that is central to Tauss intrusion cause of action. As explained by the majority, Cantrell stated in a declaration that Loftus misrepresented herself at the outset of the interview as working with Dr. Corwin and being his supervisor in connection with the study of [Taus]. She asked to audiotape the interview, and as the questioning became increasingly hostile, Cantrell asked if Loftus really worked with Dr. Corwin or something to that effect, and eventually broke off the interview. Cantrell asked for the audiotape but was refused and left extremely upset. Loftus in a declaration adamantly denied making the above representations and denied audiotaping the interview. Although Cantrells declaration does not make clear what she revealed to Loftus about Taus, Loftuss declaration states that Jane Does foster mother told me during my interview of her that shortly after apparently recovering her memories in 1995, Plaintiff started sleeping with boys and doing drugs. Plaintiff also snuck out of the house at night. And she apparently left the care of her foster mother. Based on this information, but without revealing the specifics mentioned in her declaration, Loftus stated at an academic conference that after the supposed recovered memory episode, Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney.
II.
The anti-SLAPP statute, Code of Civil Procedure section 425.16, protects the right to free speech and to engage in speech-related activities by making a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on such activities. (Maj. opn., ante, at p. 37.) As the majority correctly concludes, Tauss action against Loftus falls within the scope of the activity protected by the anti-SLAPP statute, in that the activity that is the subject of the lawsuit was in furtherance of the defendants exercise of free speech. (Maj. opn., ante, at p. 34.) In order to defeat defendants motion to strike, Taus must therefore establish a probability of prevailing on her complaint (Code Civ. Proc., 425.16, subd. (b)(1)), i.e., she must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The majority concludes from the facts stated above that Taus has made a prima facie showing that Loftus tortiously intruded into her privacy. In order to evaluate this conclusion, a precise understanding of the intrusion tort is necessary.
[T]he action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231 (Shulman).) As to the first element, we have stated: To prove actionable intrusion, the plaintiff must show the defendant penetrated some zone of physical or sensory privacy surrounding, or obtained unwanted access to data about, the plaintiff. The tort is proven only if the plaintiff had an objectively reasonable expectation of seclusion or solitude in the place, conversation or data source. (Id. at p. 232, italics added.)
The determination of an objectively reasonable expectation of seclusion is contextual. In Shulman, for example, the court, relying in part on cases related to privacy accorded hospital rooms and similar places, held that an injured person had the right to some degree of privacy in the interior of an ambulance. [I]t is neither the custom nor the habit of our society that any member of the public at large or its media representatives may hitch a ride in an ambulance and ogle as paramedics care for an injured stranger. (Shulman, supra, 18 Cal.4th at p. 233.) Also entitled to a degree of privacy were conversations conveying medical information regarding [the patient] to the hospital base. (Ibid.) We acknowledged that a news cameraman perhaps, did not intrude into that zone of privacy merely by being present at a place where he could hear such conversations with unaided ears. But by placing a microphone on [the paramedics] person, amplifying and recording what she said and heard, defendants may have listened in on conversations the parties could reasonably have expected to be private. (Ibid.)
In arriving at this conclusion, we recognized the qualitatively greater intrusion represented by covert electronic recording: While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device. [Citation.] [] . . . [S]uch secret monitoring denies the speaker an important aspect of privacy of communication the right to control the nature and extent of the firsthand dissemination of his statements. (Shulman, supra, 18 Cal.4th at pp. 234-235.)
In Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907 (Sanders), a television reporter obtained employment as a telepsychic and covertly videotaped conversations with several coworkers by means of a small video camera located in her hat. (Id., at p. 920.) One of those coworkers sued for intrusion. We rejected the notion that because the plaintiffs workplace was not absolutely secluded, the plaintiff had no expectation of privacy. [P]rivacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law. . . . Like privacy, the concept of seclusion is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone. (Id., at p. 916.)
Cases that involve intrusion into a data source are rarer than cases involving intrusion into places or conversations and entail obtaining through improper means information protected by well-settled expectations of privacy and confidentiality. The majority cites three cases. In Zimmermann v. Wilson (3d Cir. 1936) 81 F.2d 847, 849, the court held that that an Internal Revenue agents search of the plaintiffs bank record through a subpoena duces tecum constituted an unreasonable search, concluding that such information should be considered a property right of the plaintiffs that could not be invaded without sufficient justification. This case is one of the ones on which illustration 4 of comment b to section 652B of the Restatement Second of Torts is based: A is seeking evidence for use in a civil action he is bringing against B. He goes to the bank in which B has his personal account, exhibits a forged court order, and demands to be allowed to examine the banks records of the account. The bank submits to the order and permits him to do so. A has invaded Bs privacy. (Rest.2d Torts, 652B, com. b, pp. 378-379.)
In Swarthout v. Mutual Service Life Ins. Co. (Minn.Ct.App. 2001) 632 N.W.2d 741, 745, the court allowed an action for intrusion when an insurance company added the names of additional health care providers to a medical release form signed by the insured without the latters permission, thereby obtaining medical information it was not authorized to acquire. In Corcoran v. Southwestern Bell Tel. Co. (Mo.Ct.App. 1978) 572 S.W.2d 212, 215-216, the defendant diverted and opened the plaintiffs mail, in clear violation of the law, in order to obtain the address of the plaintiffs son, defendants ex-husband. It should be emphasized that although the information defendant discovered in this case pertained to plaintiffs son, it was plaintiffs who sued for invasion of privacy, not their son.
From the above case law, we can derive the following principles: First, it is insufficient to allege or prove that a defendant employed offensive means to breach what a plaintiff would like to be kept private or secluded in order to maintain an action for intrusion; a plaintiff must also establish that the defendant breached a zone that the plaintiff reasonably expects to remain private or secluded. The two inquiries are related but distinct. In Shulman, for example, the court could not have concluded that bringing the hidden recorder into an ambulance breached a reasonable expectation of privacy without first concluding that the interior of an ambulance and conversations between a paramedic and an injured person in need of the paramedics services was reasonably entitled to some degree of privacy or seclusion. In Sanders, we concluded that hidden cameras brought into the workplace may constitute a breach of privacy (Sanders, supra, 20 Cal.4th at p. 923), but that the first prong of the intrusion tort is not met when the plaintiff has merely been observed, or even photographed or recorded, in a public place. (Id. at p. 914.)
Second, a reasonable expectation of privacy or seclusion is one derived not only from law, but also from well-defined custom [or] . . . habit of . . . society. (Shulman, supra, 18 Cal.4th at p. 233.)
Third, in order to maintain an intrusion action vis--vis a data source, as opposed to seclusion in a place or in communications, a plaintiff must reasonably expect, based on law, custom, or habit, that the information source will keep the information in relative secrecy but for the improper intrusion, and that the information itself will remain relatively private. In the cases and Restatement illustration discussed above, the plaintiffs attempted to keep the information private by entrusting it to institutions that have been assigned the role, through law, agreement, or well developed custom, of being guardians of confidential information, such as banks and health care facilities. The breach of that confidentiality through deception or other improper means may support an action for invasion of privacy.
With these principles in mind, we turn to the present case.
III.
At the outset, we must be clear that the question is not whether Cantrell had a reasonable expectation that her privacy would be breached by an investigator who got her to reveal private information under false pretenses. The question rather is whether Taus has a reasonable expectation that Cantrells observations of Tauss behavior while acting as her foster mother would remain private. The majority cites no case for the proposition that person A has a reasonable, legally protectable, expectation that person B will not reveal to person C observations person B has about person As life. As we stated in Shulman, [O]ne who imparts private information risks the betrayal of his confidence by the other party . . . . (Shulman, supra, 18 Cal.4th at pp. 234-235.) An expectation of privacy is even less reasonable when what is at issue is not private information that has been communicated, in which some implication of confidentiality may sometimes arise, but rather disclosure of observations of a persons behavior. As one court observed, the intrusion tort was not created to protect against . . . the garnering of information from third parties . . . . Gathering information about appellant from third parties, even if pursued using subterfuge and fraud, cannot constitute . . . . an intrusion upon [appellants] solitude or seclusion. The Court has found no authority, nor has [appellant] cited any, which suggests the contrary. (Wolf v. Regardie (D.C. 1989) 553 A.2d 1213, 1218; see also Mackerron v. Madura (Me. 1982) 445 A.2d 680, 682 [police officers attempt to obtain letter from attorneys client may implicate the privacy interests of the client, but not the attorney].)
The majority cites Sheets v. Salt Lake County (10th Cir. 1995) 45 F.3d 1383 (Sheets), in support of its proposed expansion of the intrusion tort. In that case, the police requested and the plaintiff gave a copy of his deceased wifes diary in order to assist the investigation of her murder. Copies of the diary or diary excerpts eventually wound up in the hands of several people who wrote books about the murder, one of whom quoted from the diary directly. In upholding a verdict in the plaintiffs favor pursuant to 42 United States Code section 1983, the court concluded that the husband had handed the diary over to the police with an understanding that it would be kept confidential, as evidenced both by assurances of confidentiality given by a police detective and by the fact that the diary was traditionally for the recording of private thoughts and had been given to the police for the specific purpose of aiding their investigation. (Sheets, supra, at p. 1388.)
Sheets does not assist the majoritys position. The plaintiff in that case had a reasonable expectation that the diary would be kept private because of the confidential, legally enforceable relationship between himself and the police. In order to fit within Sheets, Cantrell would have had to have been under an obligation of confidentiality not to reveal sensitive information she knew about Taus at the time she met with Loftus, which the latter breached through deception. But no such obligation has been alleged. Moreover, Cantrells observations and memory are not analogous to a diary or other traditional repository of private information.
Lacking precedent, the majority employs hypotheticals. The majority invites us to consider an instance in which an unscrupulous or overly ambitious investigative reporter or private investigator, interested in discovering whether a public official (or any other person) has a particular medical condition or is taking a specific medication, makes a telephone call to a spouse, adult child, or close friend of the official, pretends to be an emergency room physician or paramedic, and asks the relative or friend to disclose the medical information ostensibly to assist in the treatment of the official. (Maj. opn., ante, at pp. 72-73.) The majority would find actionable intrusion in such circumstances.
The above hypothetical leaves unanswered a number of questions. How close a friend does one have to be in order for there to be a reasonable expectation of privacy in the information that the friend possesses? Does the reasonable expectation apply to all relatives, even estranged ones or distant ones? Presumably it would not apply to the casual acquaintance, even if improper means were used. Or is it always for the jury to decide how close an acquaintance must be in order for there to be a reasonable expectation? Does the reasonable expectation apply to information the plaintiff has made no effort to keep secret? In cases implicating the First Amendment, we should strive for as much predictability as possible within our system of case-by-case adjudication, lest we unwittingly chill First Amendment freedoms. (Shulman, supra, 18 Cal.4th at p. 221.) The majoritys hypothetical, like the opinion in general, raises more questions than it answers.
Nonetheless, the majority may be correct that, at least under some circumstances, a person would be able to sue in the above hypothetical situation. It may be the case, for example, that a politician has a right to some degree of privacy as to the contents of her medicine cabinet, and has a reasonable expectation that her spouse will keep those contents confidential. A journalist posing as a medical doctor in a confidential relationship with the politician in order to trick the spouse into revealing such highly personal medical information may be liable for an intrusion. It is arguably true that the politician in the hypothetical has a reasonable expectation that the spouse would keep the information private but for the journalists deception.
But the majority does not contend Taus had a reasonable expectation that Cantrell would keep what she had observed about Taus private but for Loftuss misrepresentation. Rather, in explaining the core rationale for its holding, the majority states that because Loftus allegedly engaged in misrepresentations to obtain information about Taus, we cannot say, as a matter of law, that such questionable and unorthodox action constitutes conduct that plaintiff reasonably should have foreseen or anticipated. Instead, we believe a jury could find that plaintiff reasonably expected that an investigator would not seek and obtain access to such personal information about her from a relative or friend by falsely posing as an associate or supervisor of a mental health professional in whom plaintiff had confided. (Maj. opn., ante, at p. 68, original italics omitted, new italics added.)
This point is underscored by the majoritys discussion of whether Tauss alleged separation and estrangement from Cantrell affected the formers reasonable expectation of privacy. The majority concludes that it does not: [E]ven if a jury were to find that plaintiffs separation from Cantrell diminished plaintiffs reasonable expectation that Cantrell would not voluntarily disclose private information about her to others, it would not follow that a jury could not find that Loftuss conduct nonetheless violated plaintiffs reasonable expectation of privacy. As explained above, even if plaintiff could not have had a reasonable expectation that Cantrell would not voluntarily disclose such information, a jury could find that plaintiff reasonably could expect that an unrelated investigator ― like Loftus ― would not engage in the unorthodox and improperly intrusive conduct of persuading Cantrell to reveal personal information about her by intentionally misrepresenting herself . . . . (Maj. opn., ante, at p. 69, fn. 19, italics added.)
In so concluding, the majority confuses the first and second prongs of the intrusion tort. Again, a plaintiff must prove both intrusion into a place, conversation, or data source in which he or she has a reasonable expectation of privacy and that the intrusion occurred by use of means highly offensive to a reasonable person. (Shulman, supra, 18 Cal.4th at p. 231.) The majority solves its reasonable expectation of seclusion problem by concluding that Taus would not reasonably expect that someone would use highly offensive means, such as posing as an associate of a trusted mental health professional, to acquire the information. But that is not enough highly offensive means are unreasonable by definition, and a plaintiff presumably will never reasonably expect that such means would be employed. As discussed above, in addition to showing the use of highly offensive means to obtain the information, a plaintiff must also show a reasonable expectation that the information source would have kept the information private but for the employment of those means. No court has ever come close to adopting the majoritys contrary position. Just as a person has no right to sue the operator of a hidden camera who films him in public (Sanders, supra, 20 Cal.4th at p. 914), so a person has no right to sue an investigator who obtains information in which the person had no reasonable expectation of privacy to begin with, even when the investigator employs offensive means to do so.
The majority analogizes the present situation to wiretapping or similar such intrusions. As it states: Just as the plaintiff in Sanders v. American Broadcasting Companies, supra, 20 Cal.4th 907, retained a reasonable expectation of privacy that was violated when his conversations with coemployees in a nonpublic workplace were covertly videotaped by an undercover journalist, and just as a person retains a reasonable expectation of privacy that is violated when a third party defendant, by wiretapping a phone conversation or surreptitiously recording an in-person conversation, gains access to private information that the person has chosen to share with another person, a person similarly retains a reasonable expectation of privacy that may be violated when a third party defendant, by engaging in improper and unforeseen conduct, gains access to private information about the person from the persons relative or friend. (Maj. opn., ante, at p. 64.) Yet although courts have held that wiretapping or surreptitious recording of conversations violates the rights of those wiretapped or recorded, because such intrusions violate well-defined expectations of privacy (see Shulman, supra, 18 Cal.4th at p. 233; Pacific Telephone & Telegraph Co. v. Superior Court (1970) 2 Cal.3d 161, 168, fn. 8), neither Taus nor the majority cite a case extending these holdings to allow those mentioned during such conversations a right to sue for invasion of privacy. Even assuming that a court would recognize such a right under limited circumstances, nothing in case law suggests that courts would allow a plaintiff who is not a party to the conversation to dispense with the showing that he or she had a reasonable expectation that the information revealed about him or her would remain private.
Moreover, to the extent those mentioned in a wiretap or a surreptitiously recorded conversation may have a right of action for intrusion without any further showing, that right would be essentially derivative of, or a foreseeable consequence of, the clear invasion of the privacy of those wiretapped or recorded. But misrepresentation, while it may constitute fraud or some other tortious action, does not necessarily amount to an intrusion into the privacy of those who are the objects of the misrepresentation. Indeed, we recognized this very distinction between covert recording and misrepresentation in Sanders, in which we quoted with approval the courts language in Dietemann v. Time, Inc. (9th Cir. 1971) 449 F.2d 245 (Dietemann), wherein reporters for a news magazine deceitfully gained access to a quack doctors home office and secretly photographed and recorded his examination of one of them: One who invites another to his home or office takes a risk that the visitor may not be what he seems, and that the visitor may repeat all he hears and observes when he leaves. But he does not and should not be required to take the risk that what is heard and seen will be transmitted by photograph or recording, or in our modern world, in full living color and hi-fi to the public at large . . . . (Sanders, supra, 20 Cal.4th at p. 916, quoting Dietemann, supra, at p. 249.)
Thus, Sanders and Dietemann stand for the proposition that when person A has no expectation of privacy in a conversation or data source, the fact that person B gains access to such conversation or data source through false pretences does not by itself make B liable for intrusion. Rather, what is decisive in those cases is the unremarkable conclusion that secretly filming people in a relatively secluded workplace or office, and thereby potentially exposing them to the public at large, is greater intrusion upon their privacy than covertly observing them, and that the former may be an actionable invasion of privacy even when the latter is not. Contrary to the majoritys implication, (see maj. opn., ante, at p. 76, fn. 23), we never remotely suggested in Sanders that if a person simply imparts information to someone she has invited into her home who is not what he seems, and who does not secretly record the conversation, then a relative of the person could sue even if the relative had no reasonable expectation the information would be kept private.
The question then is, did Taus have a reasonable expectation that Cantrell would have kept the information revealed to Loftus about her private, but for Loftuss deception? In answering that question we must consider not simply whether, in the abstract, a child would have a reasonable expectation that a parent would keep a certain type of information private (see maj. opn., ante, at p. 76, fn. 23), but rather whether, under the particular circumstances of this case, Taus had a reasonable expectation that Cantrells information would be kept private. I would conclude she did not, for several reasons. First, the information Loftus obtained was directly pertinent to the Jane Doe case study that had become central to the recovered memory controversy. Indeed, as noted, the same issue of Child Maltreatment in which Corwins article appeared posed as a follow up research question, whether the recovered memory incident had produced a substantial change in [Tauss] life, for better or for worse. As the majority acknowledge: Because plaintiff had agreed to permit Corwin to use her case study at educational seminars and in an article published in a scientific journal albeit without identifying plaintiff by name it may well be that plaintiff could not have had an objectively reasonable expectation that an investigator or academic researcher, like Loftus, would not discover her identity and pose probing questions to Cantrell relating to such personal matters. (Maj. opn., ante, at pp. 67-68.)
Moreover, although Taus may have hoped Cantrell would not speak to people other than Corwin about her observations about Tauss behavior, she fails to demonstrate that she had an objectively reasonable expectation that Cantrell would refrain from doing so. Cantrell had no legal obligation to so refrain. Nor is there any well-established custom or habit that would dictate that a foster mother should not talk about a former foster childs behavior to others, for example, friends, relatives, and neighbors. Moreover, at issue is not private conversations between Taus and Cantrell in which some expectation of confidentiality may be inferred, but Tauss behavior. Nor, given the fact that Tauss case was at the center of an academic controversy, did Taus have a reasonable expectation that Cantrell would refuse to talk to a bona fide academic researcher making reasonable inquiries about the effect of the recovered memory. Nor does the fact that Taus broke off the foster parent-child relationship weigh in favor of an expectation that Cantrell would keep Tauss behavior private.
Furthermore, we do not know from the complaint or from plaintiffs declarations in opposition to the anti-SLAPP motion whether and to what extent Cantrell had already disclosed this information to others. And because the information in question, Tauss behavior, was not confined to the seclusion of Cantrells home, we have no way of knowing whether it was already generally known in the community. Also, Cantrells revelations to Loftus do not go much further than what Cantrell had already revealed in the Child Maltreatment article, when she told Corwin that Taus was a rebellious and troubled teenager who was tragically headstrong and who didnt have rules or regulations and wouldnt succumb to any, and who spoke of suicide and giving up. How could Taus have a legally enforceable expectation that Cantrell would keep private information if it was already generally known? And even if Cantrell kept quiet, how could Taus have had a reasonable expectation that the information wouldnt be revealed by another source?
Perhaps it can be argued that spreading some local gossip is different from talking to an academic researcher who would disseminate the information to a wider academic audience, and that Taus expected that Cantrell would make that distinction and act accordingly. But there are at least two problems with that argument. First, as discussed, there is nothing in law or custom that would dictate that Cantrell would refuse to talk to a legitimate academic investigator about Taus, given the fact that Tauss personal life was at the center of an academic controversy. Second, Loftus was in fact very discreet about the information she obtained. She did not reveal Tauss identity, and did not disclose the fact that Cantrell said she had engaged in promiscuous behavior and drug use until after the litigation had commenced. Loftus mentioned at an academic conference only that Jane Doe had engaged in unspecified destructive behavior after the supposed recovered memory incident. Unlike the fake employee with the hidden camera in Sanders, Loftus was not masking a hidden purpose of filming and ultimately publicizing private information. Although she is alleged to have misrepresented her association with Corwin, she did not misrepresent her status as an academic researcher bound by protocols of confidentiality.
It may be that Taus would have preferred that Cantrell not reveal the further intimate details of her life to Loftus because, unlike Corwin, and unlike the friends or neighbors that Cantrell might have spoken to, Taus perceived Loftus as threatening because she was contesting claims that Taus had been sexually abused. In fact, it is fairly apparent that the impetus for this litigation is not Loftuss investigative techniques but her perceived adversarial stance toward Corwin and, derivatively, toward Taus. But by any ordinary sense, the desire to deny an investigator information based on the investigators viewpoint cannot be called an expectation of privacy or seclusion, and the enforcement of Tauss preference through tort law is contrary to free academic inquiry and the First Amendment.
Of course, Cantrell herself had an interest in not being deceived. If she revealed information she would not have otherwise disclosed but for the misrepresentation, and if such disclosure caused some tangible injury, she might have an action for intentional infliction of emotional distress, fraud, or some other tort. But Cantrell is not the plaintiff here, and this issue is beyond the scope of the case. Nor do we consider whether Loftus would be liable if she had lied to Taus to get the latter to reveal information. The question is whether Taus had a reasonable expectation that Cantrell would keep private certain personal information about her. The answer based on the present record is that she did not. Her tort for intrusion into private matters therefore should fail, even if Loftus engaged in the misrepresentations alleged by Cantrell to obtain that information.
IV.
The majoritys desire to protect society from the kind of misrepresentations alleged in the present case is understandable, and it may be argued that a person could avoid intrusion suits of this kind by simply telling the truth. But of course Loftus vigorously denies having made any misrepresentations. The real question is whether we should subject academics and other investigators to right to privacy suits based on allegations that the means of obtaining information from a third party was unscrupulous, when the information obtained is itself not something an individual can reasonably expect to be kept private.
To insist that the reasonable expectation of privacy requirement be rigorously adhered to is not simply a matter of formal doctrinal correctness, but serves to enforce an important constitutional and policy principle. Permitting suits that do not meet this requirement will likely chill vigorous journalistic investigation because of the inherently problematic nature of the relationship between journalists and their news sources. As an amicus curiae brief filed on behalf of the various news organizations states: The media . . . will be left vulnerable to intrusion claims arising from a news sources belated attempt to distance himself from the information he disclosed by asserting that the media engaged in some sort of misrepresentation to obtain it. Sources who voluntarily provide information to the media often take issue after the fact with some aspect of what the media ultimately reported. Indeed, when the subject of an unflattering or critical news report complains to a source of information for that report who allegedly revealed private or injurious information to a reporter, it creates a motive for the source to belatedly contend that the reporter obtained the information by misrepresentation, or other improper means. The same dynamic may occur in academic investigations. While the media organizations may not be correct that journalists should enjoy a blanket immunity from all such suits based on alleged misrepresentations to third party news sources, at the very least, no suit should be allowed when the plaintiff has not demonstrated a reasonable expectation that the information in question would be kept private but for the misrepresentations.
Given the important interests at stake, and the fact that the significant expansion of the intrusion tort found in the majority opinion can correspondingly diminish academic and journalistic freedom, we should undertake such expansion only with the greatest of care. Here, Taus has demonstrated no reasonable expectation that the information revealed to Cantrell would be kept private but for the misrepresentation. Tauss cause of action for intrusion should therefore be stricken pursuant to Code of Civil Procedure section 425.16, which was specifically intended to weed out such unmeritorious suits impinging on free speech and inquiry.
I therefore respectfully dissent.
MORENO, J.
I CONCUR:
BAXTER, J.
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Taus v. Loftus
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Unpublished Opinion XXX NP opn. filed 4/1/05
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
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Opinion No. S133805
Date Filed: February 26, 2007
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Court: Superior
County: Solano
Judge: James F. Moelk
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Attorneys for Appellant:
Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox; Christopher Patti; Selman-Breitman, Jeane Struck, Gregg A. Thornton; Rutan & Tucker and Duke F. Wahlquist for Defendants and Appellants Elizabeth Loftus, Melvin Guyer, Carol Tavris, the Committee for the Scientific Investigation of Claims of the Paranormal (CSICOP), Skeptical Inquirer and Center for Inquiry West.
John P. Hollinrake and Demosthenes Lorandos for Defendant and Appellant Shaprio Investigations.
R. Chris Barden; Bishop, Barry, Howe, Haney & Ryder and Mark C. Raskoff for National Committee of Scientists for Academic Liberty as Amicus Curiae on behalf of Defendants and Appellants.
Thomas A. Pavlinic and Kristine M. Burk for The False Memory Syndrome Foundation as Amicus Curiae on behalf of Defendants and Appellants.
Levine Sullivan Koch & Schulz, James E. Grossberg, Seth D. Berlin, Jeanette Melendez Bead; Harold W. Fuson, Jr.; Michael Kahane, Barbara Tarlow; Cohn & Marks, Kevin M. Goldberg; Charles J. Glasser, Jr.; Peter Scheer; Thomas W. Newton, James W. Ewert; Anthony M. Bongiorno; David M. Giles; Barbara W. Wall; Jonathan Donnellan, Kristina E. Findikyan; Karlene W. Goller; Stephen J. Burns; King & Ballow, Tonda Rush; Susan E. Weiner, James Lichtman, Craig Bloom; George Freeman, David E. McCraw; Wiley Rein & Fielding, Kathleen A. Kirby; Lucy A. Dalgish, Gregg P. Leslie, Baker & Hostetler, Bruce W. Sanford , Robert D. Lystad, Bruce D. Brown; and Robin Bierstedt for The Copley Press, Inc. American Media, Inc., The American Society of Newspaper Editors, Bloomberg News, California First Amendment Coalition, California Newspaper Publishers Association, CBS Broadcasting, Inc., CBS Radio, Inc., The E.W. Scripps Company, Freedom Communications, Inc. dba The Orange County Register, Gannett Co., Inc., The Hearst Corporation, Los Angeles Times Communications LLC, The McClatchy Company, National Newspaper Association, NBC Universal, Inc., The New York Times Company, Radio-Television News Directors Association, The Reporters Committee for Freedom of the Press, Society of Professional Journalists and Time Inc. as Amici Curiae on behalf of Defendants and Appellants.
Page 2- S133805 counsel continued
Attorneys for Respondent:
McCloskey, Hubbard, Ebert & Moore, Hubbard & Ebert and Julian J. Hubbard for Plaintiff and Respondent.
A. Steven Frankel for The Leadership Council on Child Abuse & Interpersonal Violence as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas R. Burke
David Wright Tremaine
One Embarcadero Center, Suite 600
San Francisco, CA 94111-3611
(415) 276-6500
Julian J. Hubbard
Hubbard & Ebert
600 Allerton Street, Suite 202
Redwood City, CA 94063
(650) 369-9353
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