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 II..
A. Public-Disclosure-of-Private-Facts Action
In this courts decision in Shulman, supra, 18 Cal.4th 200, 214, we set forth the elements of the public-disclosure-of-private-facts tort as follows: (1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to the reasonable person, and (4) which is not of legitimate public concern. In discussing the fourth element, we explained in Shulman that lack of newsworthiness is an element of the private facts tort, making newsworthiness a complete bar to common law liability. (Id. at p. 215.)[1]
Considering the relevant facts revealed by the record in light of the elements of the public-disclosure-of-private-facts tort, we disagree with the Court of Appeals conclusion that plaintiff established a prima facie case with regard to this tort. To begin with, we have very serious doubts whether either of the statements in question that Jane Doe engaged in destructive behavior that I cannot reveal on advice of my attorney, or that Jane Doe is in the Navy constitutes disclosure of the kind of sufficiently sensitive or intimate private fact which would be offensive and objectionable to the reasonable person so as to support a cause of action under the public-disclosure-of-private-facts tort. (See, e.g., Coverstone v. Davies (1976) 38 Cal.2d 315, 323 [public-disclosure-of-private-facts tort applies to the unwarranted publication by defendant of intimate details of plaintiffs lives (italics added)].)[2] We need not decide that question here, however, because unlike the Court of Appeal we conclude that the facts disclosed relating generally to how the experiences described in the case study may have affected Jane Does subsequent conduct and career as an adult clearly are newsworthy, and for that reason cannot properly be the basis of such a tort action.
Our decision in Shulman discussed the newsworthiness standard at some length, and it is useful to review that discussion here. We explained that courts have generally protected the privacy of otherwise private individuals involved in events of public interest by requiring that a logical nexus exist between the complaining individual and the matter of . . . public interest. [Citation.] The contents of the publication or broadcast are protected only if they have some substantial relevance to a matter of legitimate public interest. [Citation.] Thus, recent decisions have generally tested newsworthiness with regard to such individuals by assessing the logical relationship or nexus, or the lack thereof, between the events or activities that brought the person into the public eye and the particular facts disclosed. . . . This approach accords with our own prior decisions, in that it balances the publics right to know against the plaintiffs privacy interest by drawing a protective line at the point the material revealed ceases to have any substantial connection to the subject matter of the newsworthy report. [Citation.] This approach also echoes the Restatement commentators widely quoted and cited view that legitimate public interest does not include a morbid and sensational prying into private lives for its own sake . . . . (Shulman, supra, 18 Cal.4th 200, 223-224.)
Shulman also makes it clear that [a]n analysis measuring newsworthiness of facts about an otherwise private person involuntarily involved in an event of public interest by their relevance to a newsworthy subject matter incorporates considerable deference to reporters and editors . . . . In general, it is not for a court or jury to say how a particular story is best covered. (Shulman, supra, 18 Cal.4th 200, 224-225, fn. omitted.) By confining our interference to extreme cases, the courts avoid[] unduly limiting . . . the exercise of effective editorial judgment. (Id. at p. 225.)
Defendants claim that plaintiff in this case, unlike the plaintiff in Shulman, should not be viewed as an otherwise private person involuntarily involved in an event of public interest, because plaintiff voluntarily consented to have the videotapes of her sessions with Corwin used for educational purposes and set forth in a published article. Plaintiff challenges this view, contending that she gave only limited consent and that the consent should not be treated as having broadly opened her life to intensive scrutiny.
We need not resolve that question because, even if we assume, as plaintiff contends, that plaintiff should be considered an otherwise private person involuntarily involved in an event of public interest within the meaning of the Shulman decision (Shulman, supra, 18 Cal.4th 200, 224), we conclude that under the standard set forth in Shulman it is nonetheless clear that the statements here at issue were newsworthy. As discussed above, a number of the commentators whose articles about the Jane Doe case study were published with the Child Maltreatment article itself remarked that it would be important and of interest from an academic standpoint to learn the effects of the events described in the case study upon Janes future development. In light of the prominence of the Jane Doe case study in the repressed memory field, we find that the disclosure of such facts was newsworthy. This is particularly true because the particular revelations at issue that Jane Doe engaged in unspecified destructive behavior and is now in the Navy were not of an [i]ntensely personal or intimate nature. (Cf. Shulman, supra, 18 Cal.4th at p. 226 [the balance of free press and privacy interests may require a different conclusion when the intrusiveness of the revelation is greatly disproportionate to its relevance. Intensely personal or intimate revelations might not, in a given case, be considered newsworthy, especially where they bear only slight relevance to a topic of legitimate public concern].) Under these circumstances, we conclude that the record does not support a determination that plaintiff has established a prima facie case of improper disclosure of private facts based upon Loftuss alleged statement at the October 2002 professional conference.
B. Defamation Action
As noted, in addition to determining that Loftuss alleged statement at the October 2002 conference could support a tort action for improper disclosure of private facts, the Court of Appeal held that this statement also could support a cause of action for defamation against Loftus. For the reasons discussed hereafter, we disagree.
The tort of defamation involves (a) a publication that is (b) false, (c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special damage. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, 529, p. 782, citing Civ. Code, 45-46 and cases.)
In concluding that the statement at issue could support a cause of action for defamation, the Court of Appeal held that this statement is not an expression of opinion or a subjective professional judgment drawn from fully disclosed facts. The truth of the factual assertion that [plaintiff] is in the military is undisputed. However, when viewed in its totality, this challenged statement could reasonably be interpreted as implying that Taus ongoing destructive behavior or the effects of past behavior make her unfit for military service.
As an initial matter, even if contrary to Loftuss declaration the two sentences in question were linked together in a single statement and even if we assume that the statement was reasonably susceptible of the defamatory meaning that Loftus intended to imply that plaintiff was unfit for military service, it appears very doubtful that such a statement properly could be viewed as a statement of fact (which could support a defamation action), rather than an expression of opinion (which cannot). (See, e.g., Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, 604.)
In any event, we conclude that plaintiff failed to establish a prima facie case on the defamation claim in light of a factor not raised by the parties or considered by the Court of Appeal the qualified privilege to which the statements in question are entitled under the so-called common-interest privilege established by Civil Code section 47, subdivision (c)(1). (See generally 5 Witkin, Summary of Cal. Law, supra, Torts, 591-594, pp. 867-874.)[3]
Civil Code section 47, subdivision (c)(1) provides in relevant part: A privileged publication or broadcast is one made: [] . . . [] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested . . . . In light of past California cases applying section 47, subdivision (c)(1), it is clear that the alleged defamatory statement here in question a statement made by Loftus, a psychology professor and author, at a professional conference attended by other mental health professionals and that was related to the subject of the conference falls within the reach of this statutory common-interest privilege. (See, e.g., Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1204 [The parties do not dispute that the allegedly defamatory statement at issue in the present case, made by defendants at a seminar to persons sharing a common interest in horse breeding, were made upon a privileged occasion for purposes of the common-interest privilege]; Institute of Athletic Motivation v. University of Illinois (1980) 114 Cal.App.3d 1, 7-14 [common-interest privilege applies to letter, criticizing plaintiffs sports-specific psychological testing, that was sent by university physical education professor to athletic organizations and sports magazines]; Katz v. Rosen (1975) 48 Cal.App.3d 1032 [common-interest privilege applies to letter sent by defendant to local bar association complaining of plaintiff attorneys conduct]. See generally 2 Smolla, Law of Defamation (2d ed. 1997) 8.56, pp. 8-36 to 8-38; Eldredge, The Law of Defamation (1978) 87, pp. 481, 484-485.)
Under Civil Code section 47, subdivision (c), defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with malice. (Lundquist v. Reusser, supra, 7 Cal.4th 1193, 2002.) Because the evidence presented on the motion to strike clearly demonstrates that the statements at the October 2002 conference were made on a privileged occasion, plaintiff bore the burden of establishing a prima facie case that these statements were made with [a]ctual malice. (Civ. Code, 48a, subd. 4(d).) As we explained in Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406, 413: The malice necessary to defeat a qualified privilege is actual malice which is established by a showing that the publication was motivated by hatred or ill will towards the plaintiff or by a showing that the defendant lacked reasonable ground for belief in the truth of the publication and thereafter acted in reckless disregard of the plaintiffs rights [citations].
In our view, the evidence presented in the trial court on the motion to strike clearly is insufficient to establish a prima facie case of actual malice, that is, to establish that Loftus, in making the alleged statements at the October 2002 conference, acted out of hatred or ill will toward plaintiff or that Loftus lacked a reasonable basis for believing in the truth of her statements. It is undisputed that at the October 2002 conference, Loftus did not reveal either Jane Does identity or the details of the destructive behavior that plaintiffs foster mother had revealed to Loftus circumstances that seemingly belie the claim that Loftus acted out of hatred or ill will toward plaintiff. Further, although in her declaration plaintiff explicitly denies engaging in the specific instances of destructive behavior that Loftus alleges she learned from plaintiffs foster mother, plaintiff acknowledges in that declaration that her foster mother may have had concerns that she (plaintiff) had engaged in such conduct. The declaration filed by plaintiffs foster mother, although taking issue with Loftuss conduct in other respects, does not deny that the foster mother made such statements to Loftus. Under these circumstances, we conclude that plaintiff failed to establish a prima facie case that Loftus made the alleged defamatory statement in question out of hatred or ill will, or with reckless disregard for the truth of the statements.
Contrary to plaintiffs contention, the factors upon which plaintiff relies to support a claim of malice principally Loftuss strongly held views on the repressed memory issue, Loftuss persistence in investigating the soundness of Corwin and Olafsons article despite plaintiffs objections, and Loftuss acknowledged displeasure with the ethical complaint that plaintiff filed against her with the University of Washington are not sufficient to support a determination that Loftus acted with actual malice in making the alleged statements in question at the October 2002 professional conference. The qualified privilege embodied in Civil Code section 47, subdivision (c)(1) is intended to provide substantial protection to statements made on just such an occasion, and the circumstances relied upon by plaintiff fall far short of providing an adequate basis for finding that Loftus made these statements with actual malice. (Accord, Weingarten v. Block (1980) 102 Cal.App.3d 129, 144-151.)
Accordingly, we conclude that plaintiff failed to establish a prima facie case with regard to a cause of action for defamation based upon the statements alleged to have been made by Loftus at the October 2002 conference.
In sum, we conclude that the Court of Appeal erred in permitting plaintiffs action to go forward with respect to Loftuss alleged statements at the October 2002 conference, either as a cause of action for public-disclosure-of-private-facts or for defamation.
IV
We next address the Court of Appeals holding that plaintiff properly could pursue a cause of action for improper public disclosure of private facts based upon Loftuss disclosure of the initials of plaintiffs first and last names at a deposition in an unrelated case. As we explain, we conclude that the Court of Appeal erred in determining that plaintiff had established a probability of prevailing on such a claim.
The facts underlying this claim can be briefly summarized. During a deposition in an unrelated case in which Loftus had been retained as an expert witness, a question arose regarding Loftuss recent move from a professorship at the University of Washington to a position at the University of California at Irvine, and the plaintiffs counsel in that proceeding asked Loftus whether she knew the name of the person who had filed a complaint against her with the University of Washington. Loftus answered: I do know her name, but I would rather protect her privacy. The deposition continued as follows:
Q: Can you give me the initials?
A: Well, shes called Jane Doe in the article.
Q: I see.
A: But her real initials are N.T.
Q: Okay.
A: I mean, I just didnt want her name floating around in a public record.
As noted, the Court of Appeal held that Loftuss disclosure of plaintiffs initials could support a claim for improper public disclosure of private facts. The court based its determination on its view that plaintiffs identity was not a matter of public interest, and because the revelation of plaintiffs initials was a clue to the true identity of Jane Doe, the Court of Appeal concluded that a reasonable jury could find that disclosing this information was both offensive and objectionable.
For several reasons, we disagree with the Court of Appeals conclusion that Loftuss disclosure of plaintiffs initials during the deposition properly can provide support for a tort cause of action for improper public disclosure of private facts. First, even if we assume that the appellate court was correct in concluding that the identity of the subject of the case study discussed in the Child Maltreatment article was not a matter of public interest an issue that we need not, and do not, decide we believe it is clear that the mere disclosure of plaintiffs initials could not properly be considered to constitute a public disclosure of her identity so as to support an action for public disclosure of private facts.[4]
Second, it is clear in any event that Loftuss disclosure of plaintiffs initials at the deposition cannot support a claim for improper disclosure of private facts because the deposition occurred on March 1, 2003, more than two weeks after plaintiff filed the initial complaint in the present case (on February 13, 2003) in which plaintiff herself provided her full name and identified herself as the person who had been identified as Jane Doe in the Child Maltreatment and Skeptical Inquirer articles. Thus, at the time of the deposition in question, plaintiff already had revealed her true identity, and Loftuss deposition answer clearly did not disclose a private fact whose revelation could be the basis for the imposition of liability under the public-disclosure-of-private-facts tort. (See, e.g., Sipple v. Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1047 [there is no liability when the defendant merely gives further publicity to information about the plaintiff which is already public].)
Accordingly, the Court of Appeal erred in determining that Loftuss disclosure of plaintiffs initials during the deposition in question properly could provide support for a cause of action for public disclosure of private facts.
V
We next consider the Court of Appeals holding that plaintiff properly could proceed with a cause of action for a distinct invasion-of-privacy tort the tort of intrusion into private matters based upon defendants allegedly improper action in obtaining confidential court records.
In our decision in Shulman, supra, 18 Cal.4th 200, 231, we explained that California decisions have adopted the formulation of the intrusion-into-private-matters tort set forth in section 652B of the Restatement (Second) of Torts: One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of privacy, if the intrusion would be highly offensive to a reasonable person. In briefly encapsulating this formulation in Shulman, we stated that the 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, supra, 18 Cal.4th at p. 231.) As explained in Shulmans full discussion of this tort, however, the opinions concise two-part restatement of the elements of the tort was not intended to alter either the Restatements requirement that the intrusion upon anothers privacy be intentional, or the Restatements recognition that the tort includes not only highly offensive intentional intrusions into another persons private place or conversation but also highly offensive intentional intrusions upon another persons private affairs or concerns. With regard to the latter point, the opinion in Shulman observed: 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.)
As noted, plaintiff contended in the Court of Appeal that she had established a prima facie case for purposes of the intrusion-into-private-matters tort based upon defendants action in collecting and utilizing private information concerning plaintiff contained in both public and confidential court files. The Court of Appeal recognized that plaintiffs claim is untenable insofar as it is based upon defendants examination and disclosure of medical or other reports contained in court records that are open to the public, even if the information in the reports otherwise might be thought of as private information. (See, e.g., Gates v. Discovery Communications, Inc. (2004) 34 Cal.4th 679, 692 [ the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection, quoting Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469, 495]; Shulman, supra, 18 Cal. 4th 200, 231.) The Court of Appeal went on to hold, however, that the record before the trial court could support a claim that defendants obtained private information from court records in Solano County relating to plaintiffs juvenile dependency file that were not open to the public, and the Court of Appeal found that a cause of action for intrusion into private matters could be based upon such alleged conduct.
In reaching the latter conclusion, the Court of Appeal relied upon a statement contained in a declaration filed by Harvey Shapiro, whose private investigation company, Shapiro Investigations, had been hired by Loftus to search court records in Solano County. In his declaration, Shapiro stated that one of his assistants had copied voluminous public records on file in the Solano County court. In concluding that this statement was sufficient to establish a prima facie case that defendants had obtained information from confidential court files, the Court of Appeal apparently assumed that the only court records in Solano County that contained information regarding plaintiff were confidential juvenile dependency records relating to her. Based on this assumption, the Court of Appeal determined that although Shapiros declaration explicitly referred only to his assistants examination of public records, the declaration nonetheless would support a conclusion that defendants somehow had obtained copies of confidential court records in Solano County.
After the Court of Appeal filed its opinion, defendants sought rehearing in that court on the ground that the appellate courts conclusion on this issue was based on an erroneous premise. In conjunction with the rehearing petition, defendants requested that the Court of Appeal take judicial notice of voluminous records from a number of non-juvenile-dependency proceedings in Solano County including a guardianship proceeding and a wrongful death action brought on plaintiffs behalf that are properly open to the public and that contain substantial information relating to plaintiff. The Court of Appeal denied rehearing as well as the request for judicial notice.
After we granted review, defendants filed a motion requesting that this court take judicial notice of the records in question. Under Evidence Code section 452, a court may take judicial notice of the records of any court of this state, and the records in question are relevant to the question whether plaintiff has presented sufficient evidence to establish a prima facie case that defendants improperly obtained private information about plaintiff from confidential court records. Accordingly, we have granted the motion to take judicial notice of the proffered court records.
In light of the court records from Solano County presented by defendants, we conclude that the Court of Appeal erred in suggesting that the Shapiro declaration itself would support a conclusion that defendants collected information about plaintiff from confidential court records. The Solano County records in question are court records that are open to the public and that contain numerous references to plaintiffs true identity and also identify Cantrell as plaintiffs foster mother. (The wrongful death action that is included in the Solano County court records was filed on behalf of plaintiff by Cantrell as plaintiffs guardian ad litem.) Plaintiff failed to present any evidence in opposition to the motion to strike that would indicate that Shapiro, his assistant, or anyone else improperly obtained access to confidential court files.
Under these circumstances, we conclude that the Court of Appeal erred in holding that plaintiff had established a prima facie case of intrusion into private matters based upon defendants collection and dissemination of information contained in the Solano County court records.
VI
Finally, we reach what appears to be plaintiffs most substantial claim the claim that Loftus committed the tort of intrusion-into-private-matters in obtaining personal information about plaintiff from plaintiffs former foster mother, Margie Cantrell, by intentionally misrepresenting her (Loftuss) relationship with Corwin. The Court of Appeal held that the evidence before the trial court was sufficient to permit this cause of action to go forward.
The facts relevant to this claim are contained in three declarations that were before the trial court: (1) a declaration of Cantrell, filed in conjunction with the opposition to the motion to dismiss; (2) a supplemental declaration of Loftus, filed in conjunction with the reply to the opposition; and (3) a declaration by Harvey Shapiro (the private investigator whose company was hired by Loftus, who arranged a meeting between Loftus and Cantrell), filed in support of the motion to dismiss. As we shall see, the version of the relevant events set forth in Cantrells declaration sharply conflicts with the version described in the Loftus and Shapiro declarations.
In her declaration, Cantrell states that she was plaintiffs foster mother in the early 1990s during plaintiffs adolescence, that she met Corwin during this period and knew that he and Nicole had a professional relationship related to her past history of child abuse and the painful breakup of her parents marriage, and that she found Dr. Corwin to be polite and respectful and considerate of Nicoles feelings. Cantrell further states that in late 1997 she was contacted by Loftus, who allegedly represented to Cantrell that she was working with David Corwin, M.D. to help Nicole and who asked Cantrell to come down to an office located in town to answer a few questions. Cantrell states in her declaration that [g]iven my past contacts with Dr. Corwin, and my understanding of Nicoles trust in him, I accepted the invitation in order to help Nicole in any way that I could.
Cantrell indicates in her declaration that when she arrived for the interview with Loftus, Loftus was seated in a room with a man. When Cantrell entered and introduced herself, Dr. Loftus smiled and welcomed me, saying again that she was working with Dr. Corwin and was actually his supervisor in connection with the study of Nicole. According to Cantrells declaration: Dr. Loftus asked if she could record the interview on audiotape, and relying entirely on [Loftuss] representations that she worked with Dr. Corwin, Cantrell agreed. The declaration continues: The questioning lasted several hours I believe. During the course of the interview the questioning about Nicole seemed to become increasingly hostile. I became concerned and asked Dr. Loftus if she really worked with Dr. Corwin or something to that effect. . . . I recall that my confrontation caused a reaction on the part of both the man and the woman. I told them that I felt that they had not been honest with me and asked them what they were really doing. They did not respond. I became frightened. . . . I demanded that they turn the recording machine off. I believe that they did so. . . . I demanded that they give me the tape. They refused. . . . I left immediately, extremely upset.
Cantrell further states in her declaration that after subsequently learning from Corwin that Loftus was not associated with him, I felt humiliated because I had been talking about Nicoles confidential matters with someone I was led to believe was bound to respect her confidentiality. Cantrell states that [s]ince this incident, Nicole and I have become estranged, and that I am informed that, because of the interview, Nicole believes that I am no longer trustworthy. This saddens me deeply. Cantrell further indicates that I would never have consented to be interviewed by [Loftus] if she had disclosed her true identity and focus and would have said nothing about Nicole without Nicoles full knowing and voluntary consent.
After the Cantrell declaration was filed, Loftus filed a supplemental declaration that stated in relevant part: I unequivocally deny that I ever represented myself to Ms. Cantrell or anyone else as working with David Corwin, M.D. or that I in any way implied or suggested that I was his supervisor or words to this effect. Ms. Cantrell may possibly have misunderstood me when I undoubtedly mentioned Dr. Corwins interviews with Plaintiff. However, again, I in no way represented myself as associated with Dr. Corwin nor would I.
Loftuss supplemental declaration continues: Further, as the interview with Ms. Cantrell was never tape-recorded nor, to my knowledge, was a tape-recorder even present the statements in the declaration . . . that refer to a tape-recording simply make no sense. Finally, in her declaration, Ms. Cantrell declares that the interview became hostile and that she became frightened and that she was extremely upset and that she left immediately. This characterization of our interview is entirely inconsistent with my recollection of our lengthy interview that day which was concluded when Ms. Cantrell posed for photographs with Mr. Shapiro who she knew already and with me.
The Shapiro declaration, which was filed prior to Cantrells declaration as an exhibit to defendants initial motion to strike, provides additional information regarding the events leading up to Loftuss interview with Cantrell. In his declaration, Shapiro states that Cantrell first came to his office in July 1997, prior to and with regard to a matter totally unrelated to the matter in which he subsequently was hired by Loftus. In September 1997, Loftus contacted Shapiro and requested his help in identifying the Jane Doe referred to in the Corwin article, involving a case that Loftus believed may have originated in Solano County. Shapiro assigned one of his assistants to search public records at the Solano County Clerks Office, and in searching relevant court records the assistant discovered a name (Margie Cantrell) that was familiar to the assistant. In a subsequent telephone conversation between Shapiro and Loftus, Loftus expressed interest in meeting Cantrell, and Shapiros declaration states that [s]erendipitously, Ms. Cantrell was in my office speaking to one of my staff, during my conference with [P]rofessor Loftus.
Shapiros declaration continues: When [P]rofessor Loftus asked if I could arrange a meeting between Professor Loftus and Ms. Cantrell, I immediately went to where Ms. Cantrell was speaking with one of my staff and asked Ms. Cantrell if she would be willing to discuss her work as a foster mother with a friend of mine. . . . Ms. Cantrell was delighted to speak about her work as a foster mother and agreed to meet within the next few days. . . . Several days later, on September 27, 1997, my assistant . . . , [P]rofessor Loftus, and I met with Ms. Margie Cantrell, in my Fairfield, California office. . . . Ms. Cantrell was delighted to be interviewed, provided four hours of information and gave [P]rofessor Loftus a great many details, including names, addresses and such of and concerning Plaintiff Nicole Taus. Finally, the Shapiro declaration additionally states: Subsequent to her interview, Ms. Cantrell returned to my office with photos and more information of and concerning Plaintiff Nicole Taus.
As these declarations reveal, there is a sharp conflict in the evidence in the record regarding whether Loftus represented herself to Cantrell as working with or associated with Dr. Corwin. Cantrell asserts that Loftus repeatedly made such a representation; Loftus vigorously denies making any such representation. At the present stage of the proceeding, we have no occasion to resolve this conflict. As we have explained above (ante, pp. 35-36), under the standard set forth in past cases interpreting and applying section 425.16, an action may not be dismissed under this statute if the plaintiff has presented admissible evidence that, if believed by the trier of fact, would support a cause of action against the defendant. (See, e.g., Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th 811, 821.) Accordingly, although it is certainly possible that a trier of fact could find that Cantrells version of the asserted events has been distorted by her acknowledged desire to regain the lost trust and confidence of plaintiff (her former foster daughter), at this juncture our role is limited to determining only whether, if the trier of fact were to find that Loftus made the alleged misrepresentations to Cantrell in order to obtain personal information concerning plaintiff and obtained such information by virtue of those misrepresentations, this conduct would be sufficient to support a cause of action by plaintiff for the tort of intrusion into private matters.
As discussed above, in order to prevail on an intrusion-into-private-matters cause of action, a plaintiff must establish that the defendant intentionally intruded into a private place, conversation, or matter in a manner highly offensive to a reasonable person. (See, ante, pp. 51-52; Shulman, supra, 18 Cal.4th 200, 231.) Further, as explained in Shulman, [t]o 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.)
The initial question is whether the asserted facts demonstrate that Loftus intruded into a private place, conversation, or matter as to which plaintiff possessed a reasonable expectation of privacy. Loftuss alleged conduct did not involve entering a private place such as plaintiffs home or hospital room or tapping her phone, but rather interviewing her former foster mother (Cantrell), whose identity Loftus learned from publicly available court records. Defendants contend that plaintiff had no objectively reasonable expectation of seclusion or solitude in the data source here, because Cantrell was free to disclose sensitive and personal facts that she knew about plaintiff.
In support of this contention, defendants rely on, among other cases, Humphers v. First Interstate Bank of Oregon (Or. 1985) 696 P.2d 527, a leading decision in this area authored by Justice Hans Linde. In Humphers, the plaintiff was a biological mother who had given up a daughter for adoption and had not generally revealed the matter to others, relying on state law providing confidentiality for such adoption records. When the daughter was 17 years of age, she sought and found the physician who had admitted her mother to the hospital. The physician agreed to help the daughter find her biological mother, revealed the mothers prior name to the daughter, and also prepared a false statement indicating that the physician had administered a medication to her mother that made it important for the daughter to locate her biological mother. Using the statement provided by the physician, the daughter was able to obtain the sealed medical records of the adoption, and then ultimately was able to locate her biological mother. The biological mother was very upset by this development, allegedly suffering emotional distress, humiliation, embarrassment, and an inability to function normally, and thereafter brought the action in question against the estate of her former physician (who had died in the interim), seeking to recover on a variety of causes of action, including one for breach of confidence and another for offensive intrusion upon her privacy, based upon the physicians disclosure of the mothers identity to her daughter.
In Humphers, the Oregon Supreme Court concluded that, on these facts, the mother could recover from the physicians estate for breach of confidence, but that a cause of action would not lie for improper intrusion. The court in Humphers held that although a defendant who was under a legal obligation not to reveal information as was the physician in this case, because the information was confidential and privileged could be held liable for breach of confidence, when information known by one person concerning another person is not protected under the law by any such rule of confidentiality, the person who reveals the information cannot be held liable for unauthorized intrusion upon privacy, because he or she is under no legal obligation to keep the information private. (See Humphers, supra, 696 P.2d 527, 529-533.)
TO BE CONTINUED AS PART IV.
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[1]Shulman also observed that newsworthiness is a constitutional defense to, or privilege against, liability for publication of truthful information. (Shulman, supra, 18 Cal.4th 200, 216.)
[2] In addition to the question whether the comments in question pertain to sufficiently sensitive or intimate matters to support a public-disclosure-of-private-facts tort, there is an additional question whether the alleged statement can support either a public-disclosure-of-private-facts action or a defamation action inasmuch as Loftus never disclosed plaintiffs identity at the October 2002 conference, but simply referred to her as Jane Doe. In contending that the statement nonetheless can support both causes of action, plaintiff relies upon cases that hold that a statement may support a cause of action for defamation even if it does not specifically identify the plaintiff by name, so long as a recipient of the communication reasonably understands that the statement was intended to refer to the plaintiff. (See, e.g., Washer v. Bank of America (1943) 21 Cal.2d 822, 829.) Here, the statement in question clearly was intended to refer to a particular person the subject of the case study described in the Child Maltreatment article but the subject was not identified by name and her identity was not widely known. Because we conclude, for the reasons discussed hereafter, that both the public-disclosure-of-private-facts action and the defamation action are deficient for other reasons, we need not determine whether the circumstance that the October 2002 statement did not identify plaintiff by name represents an additional fatal defect with respect to either cause of action.
[3] The potential applicability of Civil Code section 47, subdivision (c) was not discussed by any of the parties in the trial court or Court of Appeal, but because our research indicated the potential relevance of this statutory provision, we invited the parties to file supplemental briefs addressed to the issue and the parties have done so.
In view of our conclusion that the statutory qualified privilege established by Civil Code section 47, subdivision (c) applies in the present context, we need not reach the question whether, as defendants vigorously contend, plaintiff by virtue of her repeated consent to have her background and videotaped interviews publicly disclosed and utilized by Dr. Corwin in professional conferences and other educational settings should be considered a limited public figure so as to bring into play a constitutionally based qualified privilege under the First Amendment of the federal Constitution.
[4] In this regard, we note that it is this courts practice to employ initials in order to protect the privacy of parties or other individuals in circumstances in which such protection is deemed appropriate. (See Cal. Style Manual (4th ed. 2000) 5:9 to 5:13, pp. 179-181.)
