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 III..
The decision in Humphers, supra, 696 P.2d 527, is distinguishable from the present case in a significant respect. In Humphers, the intrusion-into-private-matters action was brought against the person who revealed the information (there, the physician), and the courts rejection of a cause of action for intrusion was based on a reluctance to define the intrusion tort so expansively as to impose liability upon a person simply for revealing information that the person was under no specific legal obligation to maintain confidential. (See id. at pp. 529-530, 532-533.) In the present case, by contrast, plaintiff is not suing Cantrell the person who disclosed the personal information about her but rather is suing an investigator who allegedly utilized a misrepresentation to obtain personal information concerning plaintiff from Cantrell. The rationale underlying the courts rejection of an intrusion cause of action in Humphers does not necessarily apply to the present setting. Indeed, the court in Humphers was careful to point out in its opinion that although [t]he [intentional] use of a false medical document to gain access to the [mothers medical] records might well give rise to liability, [the plaintiffs daughter] is not a defendant here, and the complaint does not allege that she asked [the doctor] to prepare a false letter or knew that it was false. (Humphers, supra, 696 P.2d 527, 533, fn. 13.)
Accordingly, although we agree, as Humphers and numerous other cases teach, that a person generally has no right to maintain an action for improper intrusion against a relative or close friend for voluntarily disclosing personal information about him or her to another, it does not necessarily follow that no violation of a persons reasonable expectation of privacy occurs when a third party for example, a private investigator obtains access to personal information about the person from his or her relatives or friends by utilizing improper and unanticipated means, particularly when such information would not have been disclosed by the relative or friend absent the third partys use of such means. As a matter of common experience, there is a significant difference between the disappointment one feels when a relative or friend reveals ones personal secrets, and the affront to ones personal integrity and individual dignity (see Shulman, supra, 18 Cal. 200, 231) that results when a third party, with whom one has no personal relationship, uses improper and unauthorized means to obtain access to such personal, private information. As we pointed out in Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 916, privacy, 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. In Sanders itself, we held that an employee who lacked a reasonable expectation of complete privacy in workplace conversations because they could be seen and overheard by coworkers (but not by the general public) nonetheless could maintain a cause of action for intrusion into private matters against a television reporter who, in pursuit of a story, obtained employment in the workplace and thereafter covertly videotaped numerous workplace conversations. (20 Cal.4th at pp. 914-923.)
As already noted, in discussing the intrusion-into-private-matters tort in Shulman, supra, 18 Cal.4th 200, 230-232, we explained that the California decisions applying this tort have drawn heavily upon the description of the tort in section 652B of the Restatement Second of Torts. One of the illustrative examples accompanying this section makes clear that an action for intrusion properly can be based upon a defendants obtaining personal information about the plaintiff from another person or entity by improper means. Illustration 4 of comment b to section 652B states: 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; see also, e.g., Zimmermann v. Wilson (3d Cir. 1936) 81 F.2d 847, 849 [one of the cases upon which illustration 4 is based: We rest on substance when we regard the right of Zimmermann and his wife . . . as the real parties in interest, and their bankers and brokers as mere agents. . . . It is the information the bankers books contain, and not the books in which that information is recorded, that is the property right . . . this court protects by injunctive relief. . . . [W]e regard the search here asserted as a violation of the natural law of privacy in ones own affairs which exists in liberty loving people and nations]; Swarthout v. Mutual Service Life Ins. Co. (Minn.Ct.App. 2001) 632 N.W.2d 741, 745 [action for intrusion could be maintained against insurance company that, without the insureds permission, added the names of an additional physician and medical clinic to a medical release form signed by the insured, and that employed the altered form to obtain medical information from those additional sources]; Corcoran v. Southwestern Bell Tel. Co. (Mo.Ct.App. 1978) 572 S.W.2d 212, 215-216 [actionable intrusion tort stated where defendant obtained plaintiffs phone bill from the telephone company by deception and opened the bill without plaintiffs permission].)
Although none of the foregoing cases involved an instance in which a defendant utilized a misrepresentation or some other improper means to obtain private information about a person from a relative or friend (rather than, for example, from a bank or telephone company), nothing in those cases suggests that a person forfeits his or her reasonable expectation of privacy in the private affairs or concerns that the intrusion tort was designed to protect (Rest.2d Torts, 652B) by, for example, storing private papers or sharing very personal information with a relative or close friend. Although in such an instance the person assumes the risk, for purposes of the intrusion tort, that the relative or friend may betray his or her confidence by voluntarily disclosing the information, there is no reason to conclude that the person does not retain a reasonable expectation of privacy that may be violated when a third-party defendant, by intentionally engaging in improper and unforeseen conduct, gains unauthorized and unwanted access to such information from such a relative or friend. 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.
As a general matter, of course, a persons relatives and close friends frequently are privy to a great deal of the persons most private personal and family secrets including, for example, potentially embarrassing and harmful information concerning the persons medical condition, the persons sexual activities and orientation, whether the person has been subjected to sexual or physical abuse either within his or her family or otherwise, and the persons youthful indiscretions or misbehavior. Unlike a persons appearance or activities that occur in a public place (see, e.g., Aisenson v. American Broadcasting Co. (1990) 220 Cal.App.3d 146, 162-163), and unlike personal information about a person that is contained in a public record open to inspection by the general public as a matter of law (Rest.2d Torts, 652B, com. c., pp. 379-380; Gates v. Discovery Communications, Inc., supra, 34 Cal.4th 679, 692), personal information about a person that happens to be known by the persons relatives or close friends is not information that has entered the public domain. A persons interest in preserving the privacy of such information the very interest the intrusion tort was designed to protect would be substantially undermined if a would-be investigator could employ any means whatsoever to extract or obtain such private information from a relative or close friend.
To put forth a few extreme examples, it is clear that a persons reasonable expectation of privacy would be violated if a private investigator who was determined to obtain private information about the person that was otherwise unavailable to the investigator broke into the home of a relative or close friend of the target of the investigation and copied a diary or other private papers that the target had left with the relative or friend for safekeeping, or, alternatively, physically threatened, blackmailed, wiretapped, hypnotized, or administered a drug to such a relative or friend to obtain private information about the target that the relative or friend would not have voluntarily disclosed. (See, e.g., Sheets v. Salt Lake County (10th Cir. 1995) 45 F.3d 1383, 1388 [holding that the plaintiff husband had a reasonable expectation of privacy in entries in his wifes diary that related to him: The fact that Mr. Sheets did not author the information does not prohibit him from having a distinct privacy interest in the dissemination of information written about the personal aspects of his life. . . . [] . . . We find that information conveyed to ones spouse or that ones spouse has observed about ones character, marriage, finances, and business to be personal in nature and subject to a reasonable expectation of privacy].)[1] Although in each of those instances the relative or friend would be able to pursue his or her own distinct tort cause of action against the private investigator, in many cases the most serious harm or damage will have been incurred by the person whose private information was the target of and the impetus for the intrusive misconduct, and the intrusion-into-private-matters tort is specifically intended to provide a remedy to the person who has sustained an invasion of his or her privacy by virtue of the misconduct. (Accord, Zimmermann v. Wilson, supra, 81 F.2d 847, 849 [We rest on substance when we regard the right of Zimmermann and his wife . . . as the real parties in interest, and their bankers and brokers as mere agents. . . . It is the information the bankers books contain, and not the books in which that information is recorded, that is the property right . . . this court protects by injunctive relief].)
In the present case, Loftus was seeking to obtain from Cantrell, plaintiffs former foster mother, personal information about plaintiff relating both to plaintiffs memory of ostensible sexual abuse to which plaintiff had been subjected as a child by her mother, and to the effect of plaintiffs asserted recovery of that memory on plaintiffs subsequent behavior and emotional well-being certainly the type of information as to which a person ordinarily would possess a reasonable expectation of privacy. (In this regard, it is relevant to recall that at the time Cantrell agreed to speak to Loftus about these matters, the fact that plaintiff was the Jane Doe referred to in Corwin and Olafsons 1997 Child Maltreatmentarticle, or, indeed, the circumstance that plaintiff assertedly had been sexually abused as a child, was not a matter of general or public knowledge.) Furthermore, as revealed by Loftuss declaration, through her questioning of Cantrell, Loftus was able to obtain access to previously undisclosed information concerning plaintiffs alleged promiscuity and drug use following her 1995 session with Corwin again, the kind of very personal and potentially embarrassing or detrimental information as to which a person ordinarily would possess a reasonable expectation of privacy.
Of course, unlike some of the hypothetical scenarios described above, in the present case Loftus did not obtain access to this very personal information about plaintiff by breaking into Cantrells home or by wiretapping her telephone, but instead obtained the information by questioning Cantrell. 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. In any event, because, as explained below, as a matter of law Loftuss simple engagement in such questioning would not constitute highly offensive conduct (see post, at pp. 70-71), it is clear that plaintiff would have no cause of action under the intrusion tort if, in response to such questioning by Loftus, Cantrell freely and voluntarily revealed this personal information about plaintiff to Loftus.
According to Cantrells declaration, however, Loftus did not simply approach Cantrell with questions about plaintiff, but instead misrepresented her (Loftuss) relationship with Corwin (a psychiatrist with whom plaintiff had a friendly and trusting professional relationship) stating that she (Loftus) was Corwins associate or supervisor in order to persuade Cantrell to disclose personal information about plaintiff to Loftus. If Loftus engaged in such behavior, 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.
As we explained in Sanders v. American Broadcasting Companies, supra, 20 Cal4th 907, 918, [p]rivacy, for purposes of the intrusion tort[,] must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion. Taking those factors into account, we believe that a jury reasonably could find that if, as Cantrell asserts, Loftus obtained private, personal information about plaintiff by misrepresenting herself to Cantrell as Corwins associate or supervisor, Loftuss conduct violated plaintiffs reasonable expectation of privacy. (Accord Sanders, supra, 20 Cal.4th at p. 926 [Because . . . the reasonableness of a privacy expectation must be assessed in reference to the identity of the intruder and the nature of the claimed intrusion, the proper question for the jury to decide was, indeed, whether plaintiff could reasonably expect he would not be secretly videotaped in his internal workplace interactions by a representative of the mass media].)[2]
The question remains whether a trier of fact properly could determine that the alleged conduct here at issue constituted highly offensive conduct that can be the basis for tort liability, or whether, as a matter of policy, such conduct should be considered, as a matter of law, not highly offensive for purposes of the intrusion tort.
In discussing this general subject in Shulman, supra, 18 Cal.4th 200, 236-237, our decision explained that the use of routine . . . reporting techniques, such as asking questions of people with information (including those with confidential or restricted information) could rarely, if ever, be deemed an actionable intrusion. (Shulman, supra, 18 Cal.4th at p. 237; accord, e.g., Smith v. Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [the First Amendment protects the right of journalists to obtain information using routine newspaper reporting techniques].) At the same time, we observed in Shulman that violation of well-established legal areas of physical or sensory privacy trespass into a home or tapping a personal telephone line, for example could rarely, if ever, be justified by a reporters need to get the story. . . . [] Between these extremes lie difficult cases . . . . (Shulman, supra, 18 Cal.4th at p. 237.)
As already noted, in the present case the investigative conduct of Loftus at issue consisted of asking questions of a person who possessed information concerning plaintiff rather than intruding into plaintiffs home or tapping her phone. As the passage from Shulman, supra, 18 Cal.4th 200, 237, quoted above makes clear, Loftus would not be subject to liability under the intrusion tort if she simply posed questions concerning plaintiff to Cantrell even questions probing into highly personal matters relating to plaintiff and Cantrell voluntarily had provided such information. As we have seen, however, Cantrells declaration asserts that Loftus did not simply inquire about plaintiff but rather misrepresented her (Loftuss) relationship with Corwin stating she was Corwins associate or supervisor in order to obtain sensitive information concerning plaintiff. Loftus, as we have noted, emphatically denies making any such misrepresentation, but in view of the procedural posture of this case we are limited to determining only whether, if a jury were to find that Loftus made such a misrepresentation to Cantrell, tort liability could be imposed on Loftus for improper intrusion on plaintiffs privacy.
An amicus curiae brief filed in this court on behalf of a number of news media entities and organizations cautions against permitting a cause of action for intrusion to be based solely on uncorroborated allegations ― made by a source interviewed by a reporter or other investigator ― that assert the reporter or investigator obtained information from the source through misrepresentation. The amicus curiae brief argues that in many instances in which a reporter utilizes information obtained from a source to write an article that the source ultimately is unhappy with, the source may claim, after the fact, that the reporter to obtain the information disclosed in the article failed to be forthright in disclosing his or her motives, position, or point of view to the source.[3] The brief maintains that permitting a subject about whom unflattering information has been obtained from a third party source to sue the reporter or investigator for offensive intrusion into the subjects privacy on the basis of such a claim of misrepresentation would have an undesirable chilling effect on the gathering and publication of newsworthy material.[4] The amicus curiae brief points to a number of cases that have rejected a cause of action for intrusion based on information revealed by a third party, even in circumstances in which the plaintiff alleged that a reporter or investigator employed some sort of fraud or subterfuge to obtain the information. (See, e.g., Desnick v. American Broadcasting Co.. (7th Cir. 1995) 44 F.3d 1345, 1351-1355; Rifkin v. Esquire Publg (C.D.Cal. 1982) 1982 U.S.Dist.LEXIS 18405.)
The concerns raised by the amicus curiae brief appear quite reasonable and clearly demonstrate the danger and inadvisability of adopting a broad rule under which any type of misrepresentation by a reporter, investigator, or scholar to obtain information would be considered sufficient to support a cause of action for intrusion into private matters.
At the same time, however, we believe it is important to recognize that there are at least some types of misrepresentations that are of such an especially egregious and offensive nature and are quite distinguishable from the types of ruses that ordinarily may be employed in gathering news that they properly may be considered beyond the pale for purposes of the intrusion tort, even when the misrepresentation is made to friends or relatives of the subject of an inquiry who are under no legal obligation not to reveal private information about the subject of the inquiry. For example, 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. Even though (1) a public officials right of privacy is limited in many respects, (2) the information in question, because of the officials position, might well be considered newsworthy for publication purposes, and (3) the relative or friend might be under no legal obligation to keep the information confidential, we believe a jury reasonably could find that this type of misrepresentation is highly offensive to a reasonable person and that the subject of the inquiry had an objectively reasonable expectation of seclusion or solitude in the . . . data source (Shulman, supra, 18 Cal.4th 200, 232) that was violated by the investigators use of such a tactic to obtain private information from a relative or friend who would not have divulged the information but for the flagrant nature of the misrepresentation.
The alleged misrepresentation at issue in the present case, of course, is not as egregious as that described in the foregoing hypothetical example, but the asserted misrepresentation in question nonetheless is of a particularly serious and potentially offensive nature that does share a number of the troubling aspects of that hypothetical. As noted, Cantrells declaration states that Loftus misrepresented herself as associated with indeed even the supervisor of Corwin, a psychiatrist in whom Cantrell knew plaintiff had confided and with whom plaintiff had an on-going, friendly professional relationship. Cantrell states in her declaration that Loftuss asserted misrepresentation led Cantrell to believe that Loftus was bound to respect [plaintiffs] confidentiality and that she (Cantrell) never would have consented to be interviewed by [Loftus] if [Loftus] had disclosed her true identity and focus and [that she (Cantrell)] would have said nothing about [plaintiff] without [plaintiffs] full knowing and voluntary consent. And Loftuss declaration discloses that in the course of her interview with Cantrell, Cantrell revealed a number of highly private matters regarding plaintiff that a parental figure who cared about her foster childs welfare ordinarily would not be expected to disclose to a stranger for example, that in 1995, shortly after apparently recovering her memories of her childhood sexual abuse, plaintiff started sleeping with boys and doing drugs.
In our view, intentionally misrepresenting oneself as an associate or colleague of a mental health professional who has a close personal relationship with the person about whom one is seeking information would be a particularly serious type of misrepresentation, and one significantly different from the more familiar practice of a news reporter or investigator in shading or withholding information regarding his or her motives when interviewing a potential news source. Special legal protection is provided to information communicated in the course of a physician-patient or psychotherapist-patient relationship (Evid. Code, 994, 1014), and even if plaintiffs relationship with Corwin was not of a nature that would bring information revealed to Corwin within an evidentiary privilege, the relationship bore a close similarity to such a relationship. Misrepresentations of this nature by either a reporter or an academic investigator could undermine legitimate professional relationships and would be especially troublesome, because they would take advantage of the desire and willingness of relatives and friends to provide assistance to professionals who they believe will use any personal information that is revealed to help the subject of the inquiry.
Because of these special and unusual considerations, we believe that if a trier of fact were to find that Loftus engaged in the particular type of misrepresentations alleged by Cantrell, the conduct properly could be found highly offensive for purposes of the intrusion-into-private-matters tort and liability could be imposed upon Loftus.[5]
Thus, we conclude that in light of the particular nature of the misrepresentation attributed to Loftus by the Cantrell declaration, the Court of Appeal properly determined that the evidence presented by plaintiff is sufficient to establish a prima facie case under the intrusion-into-private-matters tort.[6]
VII
For the reasons discussed above, we conclude that the Court of Appeal erred in holding that plaintiffs action should be permitted to go forward with regard to (1) Loftuss alleged statements at the October 2002 conference relating to Jane Does position in the military, (2) Loftuss disclosure of plaintiffs initials at the March 2003 deposition, and (3) defendants alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of Appeal correctly determined that plaintiffs action for improper intrusion into private matters could proceed based upon the claim that Loftus obtained personal and sensitive information regarding plaintiff from her former foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist with whom plaintiff had a close professional relationship.
Finally, although we have determined that defendants motion to strike the complaint pursuant to the anti-SLAPP statute properly was denied as to one facet of one of the numerous causes of action alleged in the complaint, it is apparent when the determinations of the Court of Appeal and this court are viewed as a whole that the overwhelming majority of plaintiffs claims properly should have been struck in the trial court under the anti-SLAPP statute. Under these circumstances, and consistent with the fundamental purpose of the anti-SLAPP statute to minimize the chilling of conduct undertaken in furtherance of the constitutional right of free speech, we conclude that it is appropriate to award defendants their costs on appeal.
The judgment rendered by the Court of Appeal is reversed in part and affirmed in part, and the matter is remanded to that court for further proceedings consistent with this opinion. Defendants are awarded their costs on appeal.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CONCURRING AND DISSENTING OPINION BY MORENO, J.
I agree with the majority in every respect except one: I respectfully disagree that Taus has an action against Loftus for the tort of intrusion into private matters (hereafter sometimes the intrusion tort), based on Loftuss alleged misrepresentations to Tauss foster mother, Margie Cantrell, in order to obtain supposedly private information about Taus. As explained below, Taus had no reasonable expectation that Cantrell would keep information she had observed about Tauss behavior private. Therefore, Taus should not be able to sue Loftus for unlawful intrusion. As also explained below, to the extent Taus preferred that Cantrell only speak to an investigator who held certain agreeable views, that preference could not be called an expectation of privacy, and the enforcement of that preference through tort law is antithetical to free academic inquiry.
I.
As discussed at greater length by the majority, plaintiff Taus became a case study in the recovered memory of sexual abuse through the work of psychiatrist Dr. David Corwin, who videotaped an interview in which Taus appears to recover the memory of sexual abuse disclosed on an earlier videotaped confession. Corwin described in considerable detail Tauss case, albeit preserving her anonymity by referring to her as Jane Doe, in an article in the May 1997 issue of Child Maltreatment, entitled Videotaped Discovery of a Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison With a Childhood Interview Videotaped 11 Years Before (2 Child Maltreatment 91 (hereafter the Child Maltreatment article)). The article printed a transcript of interviews between Corwin and Taus regarding the asserted recovered memory, and the article and interview revealed the most private and intimate details of the sexual abuse Tauss mother allegedly inflicted on her and Tauss reaction to that abuse. (See maj. opn., ante, at pp. 6-7.) Other related articles in the same issue of Child Maltreatment posed follow-up research questions related to the case study, including whether this experience has produced substantial changes in her life, for better or for worse. (See maj. opn., ante, at p. 9.)
TO BE CONTINUED AS PART V.
Publication Courtesy of California attorney directory.
Analysis and review provided by Oceanside Property line Lawyers.
[1] In Sheets v. Salt Lake County, supra, 45 F.3d 1383, the reasonable-expectation-of-privacy issue arose in the context of a federal civil rights action filed by the plaintiff husband against the defendant county, based on the disclosure by the county sheriffs office of the contents of his wifes diary that had been obtained by the sheriff in connection with a murder investigation. In Sheets, the federal circuit court concluded that the husband could maintain an action for violation of his constitutional right of privacy, because he had a reasonable expectation of privacy with regard to the personal information relating to him contained in his wifes diary.
Although the holding in Sheets rested upon the scope of the federal constitutional right of privacy rather than of the common law intrusion tort, we believe the courts conclusion in Sheets nonetheless is relevant to the issue before us. In our view, there is no reason to suggest that the scope of an individuals reasonable expectation of privacy that is protected by the common law intrusion-into-privacy tort is less extensive than the scope of the reasonable expectation of privacy that qualifies for constitutional protection under the federal Constitution. The common law intrusion tort was developed to provide a remedy for highly offensive intrusions upon privacy that otherwise would go unredressed (see generally Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389-392), and, as a matter of logic and reason, this common law remedy properly should apply to intrusions upon privacy that do not necessarily rise to the level of a federal constitutional violation. Accordingly, in our view the decision in Sheets properly can be seen as providing support for the general proposition that, for purposes of the intrusion tort, a person may possess a reasonable expectation of privacy in personal information about him or her that is known to the persons close relatives or friends a reasonable expectation of privacy that may be violated when such information improperly is obtained by a third party.
[2] At oral argument, defendants counsel suggested that Loftuss alleged conduct should not be viewed as a violation of plaintiffs reasonable expectation of privacy under the particular facts of this case, because plaintiff assertedly was estranged from Cantrell at the time Loftus interviewed Cantrell. We believe this argument lacks merit for a number of reasons. First, although the record indicates that plaintiff had left Cantrells home and no longer was residing with her at the time Loftus approached Cantrell, the record certainly does not establish, as a matter of law, that Cantrell felt so estranged from plaintiff at that time that plaintiff reasonably could have no expectation that Cantrell would respect her privacy with regard to information concerning the childhood sexual abuse allegedly sustained by plaintiff at the hands of her mother. On the contrary, Cantrells declaration states that at the time Loftus approached her, Cantrell was very much concerned with respecting plaintiffs privacy and would not have disclosed to Loftus information relating to plaintiffs personal life had Cantrell known that Loftus was not associated with Corwin. Thus, as a factual matter, this contention cannot be sustained.
Second, even 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 as an associate of Corwin (a psychiatrist trusted by plaintiff and to whom plaintiff already had disclosed information related to her memories of the sexual abuse she ostensibly had suffered as a child).
[3] The amicus curiae brief states in this regard: 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; that the reporter agreed to treat the information as off-the-record; that the source was misquoted; that the sources statement was taken out of context; or that the reporter engaged in some other alleged misconduct to procure the information.
[4] [F]rom a reporters perspective, the decision below renders a conversation between a reporter and a source a veritable minefield from which any reporter might be wise to withdraw.
[5] In Shulman, supra, 18 Cal.4th 200, 236-237, in discussing the application of the offensiveness element in the context of activities engaged in by the news media, we stated that [i]n deciding . . . whether a reporters alleged intrusion into private matters . . . is offensive and hence actionable as an invasion of privacy, courts must consider the extent to which the intrusion was, under the circumstances, justified by the legitimate motive of gathering the news. Information-collecting techniques that may be highly offensive when done for socially unprotected reasons for purposes of harassment, blackmail or prurient curiosity, for example may not be offensive to a reasonable person when employed by journalists in pursuit of a socially or politically important story.
A number of journalistic codes of ethics caution that surreptitious methods of gathering information should be avoided except when traditional open methods will not yield information vital to the public. (Society of Prof. Journalists, Code of Ethics (1996)
In the present case, of course, Loftus has denied engaging in any misrepresentation to obtain information from Cantrell (or anyone else), but defendants assert that even if Loftus made a misrepresentation to Cantrell, Loftuss actions should be considered, as a matter of law, not highly offensive, in light of plaintiffs consent to Corwins use of her case study in educational seminars and a published article. Even if plaintiffs consent to the public use of her case study rendered her a limited public figure, however, that status would not in itself justify the use of the particular type of misrepresentation here at issue; as discussed above, even all purpose public figures (see Khawar v. Globe Internat., Inc. (1998) 19 Cal.4th 254, 263) such as public officials are entitled to be protected from having investigators conduct inquiries into their private information by pretending to be the public figures physician or psychiatrist. (Ante, pp. 72-73.)
Furthermore, although it is conceivable that there may be some circumstances in which the need for information is so vital that resort to even the type of very questionable investigative tactic here at issue could not properly be found to be highly offensive to a reasonable person, we believe it is clear that this case does not fall within that narrow category. Here, although the additional information concerning plaintiff that Loftus sought to obtain from Cantrell was newsworthy, there was no profound or overriding public need that, as a matter of law, justified resort to the particular type of potentially insidious stratagem that, according to Cantrell, was utilized by Loftus in this case. (Accord, Shulman, supra, 18 Cal.4th 200, 240 [the fact that a reporter may be seeking newsworthy material does not in itself privilege the investigatory activity].)
[6] In reaching a contrary conclusion, the concurring and dissenting opinion mischaracterizes our discussion on a significant point and, in addition, ignores a key portion of the analysis of the reasonable-expectation-of-privacy element of the intrusion tort set forth in our decision in Sanders, supra, 20 Cal.4th 907.
First, contrary to the concurring and dissenting opinions suggestion (post, pp. 11-12), we have explained above that the information about plaintiff that Loftus sought to obtain and succeeded in obtaining from Cantrell information relating to the ostensible sexual abuse to which plaintiff had been subjected as a child by her mother and to the detrimental effect of plaintiffs asserted recovery of that memory on plaintiffs subsequent behavior and emotional well-being is the type of information as to which a person would possess a reasonable expectation of privacy (ante, p. 67) and is information that a parental figure who cared about her foster childs welfare ordinarily would not be expected to disclose to a stranger. (Ante, p. 74.) Although the concurring and dissenting opinion points to another passage in our opinion to suggest a contrary conclusion, that passage does not support the concurring and dissenting opinions reading. In that separate passage, after explaining that the record in this case does not support the claim that Cantrell was estranged from plaintiff at the time Loftus interviewed Cantrell, we state that even 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. (Ante, p. 69, fn. 19, first italics added.) Contrary to the implication of the concurring and dissenting opinion, this passage does not indicate we have concluded that plaintiff did not possess a reasonable expectation of privacy in the information Loftus obtained from Cantrell. As explained, we conclude that plaintiff did possess a reasonable expectation of privacy with regard to such deeply personal information.
Second, in analyzing the reasonable-expectation-of-privacy prong of the intrusion tort, the concurring and dissenting opinion fails to take into account this courts explicit recognition in Sanders, supra, 20 Cal.4th 907, 918, that [p]rivacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion. (Italics added.) In Sanders, in rejecting a claim that the trial court had erred in its instructions to the jury on the reasonable‑expectation‑of‑privacy element, we explained that [t]he disputed instructions merely focused the jurys inquiry on the question whether it was reasonable for plaintiff to expect, in the circumstances of his particular workplace, that an interaction would not be subject to covert videotaping by a television news producer. Because, as we have explained, the reasonableness of a privacy expectation must be assessed in reference to the identity of the intruder and the nature of the claimed intrusion, the proper question for the jury to decide was, indeed, whether plaintiff could reasonably expect he would not be secretly videotaped in his internal workplace interactions by a representative of the mass media. (20 Cal.4th at p. 926, italics added.) In light of this clear explanation in Sanders, we believe it is entirely appropriate and consistent with governing precedent to describe the relevant reasonable-expectation-of-privacy question in this case as whether plaintiff reasonably could expect that an investigator would not seek and obtain access to personal information relating to her memory of childhood sexual abuse from her foster mother by falselyposing as an associate or supervisor of a mental health professional in whom plaintiff had confided. (Ante, p. 68.) In questioning the opinions analysis of this point, the concurring and dissenting opinion omits any discussion of the relevant portion of Sanders.
