Plaintiff Lew Warden's appeal is from the superior court's judgment dismissing his action against defendants Melvin Kahn, Julius Kahn, Lorin Blum, and Blum & Blum, a law corporation. That judgment includes the dismissal of plaintiff's first amended complaint on the ground that it fails to state a cause of action against any of the defendants, and the dismissal of plaintiff's second amended complaint on the ground that its contents exceeded the permission which the court had granted for the filing of an amended pleading. Our conclusion is that the court did not abuse its discretion in dismissing the second amended complaint or the first amended complaint as to defendants other than Melvin Kahn, but that the first amended complaint stated a cause of action against defendant Melvin Kahn under certain provisions of the Invasion of Privacy Act, Penal Code section 630 et seq., and should not have been dismissed as to him.
The first amended complaint alleged that plaintiff Warden, an attorney at law, had represented defendant Melvin Kahn from 1964 to 1974 in "disputes and litigations" between Melvin Kahn and others; that following enactment of the Invasion of Privacy Act in 1967 Melvin Kahn "did secretly and without the knowledge and consent of plaintiff record
Defendant Melvin Kahn filed an answer to the first amended complaint by which he admitted recording "important telephone conversations between himself and plaintiff," but asserted (among other defenses) that the recording was with the knowledge and consent of plaintiff. Defendant Julius Kahn, however, demurred generally to the first amended complaint. On January 24, 1977, the trial court sustained the demurrer with 30 days' leave to amend. On February 4, 1977, Melvin Kahn moved for summary judgment and judgment on the pleadings. On February 22, 1977, before the motion could be heard, plaintiff filed a second amended complaint, 25 pages long, alleging extensive factual matters unrelated to the first amended complaint, and presenting a potpourri of additional theories and causes of action based on conspiracy, including fraud, deceit, defamation, malicious prosecution, intentional interference with contracts and business relations, and intentional and wrongful infliction of severe emotional and mental distress. Allegations with respect to recorded telephone conversations appeared in the new pleading as one of the many overt acts which ripened into the conspiracy. Melvin Kahn moved to strike the second amended complaint on the ground that, except for the allegations concerning the recordings, the new pleading set forth "wholly different causes of action," and on May 16, 1977, the trial court entered an order granting the motion and at the same time dismissing the first amended complaint for failure to state a cause of action. Judgment was entered accordingly, and plaintiff filed timely notice of appeal.
We return, therefore, to the first amended complaint and consider whether it was properly dismissed. The Invasion of Privacy Act upon which that complaint was based was adopted in 1967 and replaced what one commentator has characterized as a "hodgepodge of statutes." (Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1190 (hereafter Van Boven).)
The Invasion of Privacy Act provides criminal penalties for the offenses which it describes, but in addition, in section 637.2, it establishes
Finally, coverage of participant recording is consistent with the legislative policy declared in section 630 "to protect the right of privacy of the people of this state." While it is true that a person participating in what he reasonably believes to be a confidential communication bears the risk that the other party will betray his confidence, there is as one commentator has noted a "qualitative as well as a quantitative difference between secondhand repetition by the listener and simultaneous dissemination to a second auditor, whether that auditor be a tape recorder or a third party." (Van Boven, supra, 57 Cal.L.Rev. at p. 1232.) "In the former situation the speaker retains control over the extent of his immediate audience. Even though that audience may republish his words, it will be done secondhand, after the fact, probably not in entirety, and the impact will depend upon the credibility of the teller. Where electronic monitoring is involved, however, the speaker is deprived of the right to control the extent of his own firsthand dissemination.... In this regard participant monitoring closely resembles third-party surveillance; both practices deny the speaker a most important aspect of
We do observe, however, that section 637.2 provides for an action only against "the person who committed the violation." While the first amended complaint is sufficient to state a cause of action against Melvin Kahn, it contains no allegations giving rise to a violation of section 632 on the part of the remaining defendants. Thus, as to them, the first amended complaint was properly dismissed.
The judgment below insofar as it dismissed the second amended complaint is affirmed as to all defendants, and insofar as it dismissed the first amended complaint is affirmed as to all defendants other than Melvin Kahn.
Racanelli, P.J., concurred.
I respectfully dissent.
As I read our court's controlling opinion we have, by judicial interpretation, fashioned an innovative penal statute with a coverage unintended by the Legislature. Such a statute was expressly rejected by Congress and is not to be found elsewhere among the states of the nation.
Penal Code section 631 provides: "Any person who, by means of any ... instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection,[
Penal Code section 632, as relevant, states: "Every person who, intentionally and without the consent of all parties to a confidential [telephone] communication, by means of any ... recording device, eavesdrops upon or records such confidential communication ... shall be punishable" etc.
Here again the complaint alleges that defendant Melvin Kahn did and performed each of those acts. However, we hold that section 632 was transgressed because, unlike section 631, it does apply "to a participant to the conversation." Such a violation, it follows, is felonious and punishable by imprisonment in state prison and a forfeiture of $3,000 (§ 637.2) or $2,500 (§ 632) to the other participant for each such recording, regardless of whether damages were actually suffered.
Manifestation of a legislative intent that section 631 shall, and section 632 shall not, apply "only to eavesdropping" is not readily observable.
Our controlling opinion's reliance is tripartite. It is upon: (1) the "dominant objective of the [Cal. Invasion of Privacy] act [Act], as reflected in its preamble, ... `to protect the right of privacy of the people of this state'"; (2) a law review commentary, i.e., Van Boven, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182 (hereafter Mr. Van Boven); and (3) certain cases of the state's Courts of Appeal, i.e., People v. Wyrick (1978) 77 Cal.App.3d 903 [144 Cal.Rptr. 38], Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188 [133 Cal.Rptr. 573], and Rogers v. Ulrich (1975) 52 Cal.App.3d 894 [125 Cal.Rptr. 306].
The Act's preamble does more than reflect a legislative desire to "protect the right of privacy of the people of this state." That protection, it adds, will be effected by the Act's proscription of "eavesdropping upon private communications." The preamble does not except section 632 from the Act's declared purpose. One who records his telephone conversation with another is patently not "eavesdropping." ("[E]avesdrop ...: to listen secretly to what is said in private...." (Webster's New Internat. Dict. (3d ed. 1965) p. 717.) Thus, the Act's
Mr. Van Boven asserts that California "is one of the few states to have outlawed participant monitoring by private parties." (57 Cal. L.Rev., p. 1235.) Recourse to the two judicial opinions cited for that proposition discloses, aside from California, only two such states, Pennsylvania and Illinois.
The first of the two, Commonwealth v. Murray (1966) 423 Pa. 37 [223 A.2d 102], concerned a statute whose "precise purpose [was] to punish those who intercept [italics added] telephone communications without the consent of both parties." A detective's recording of an incriminating conversation with the consent of one party to the communication was held to be such an interception. Within the year the case was disapproved insofar as it suggested that a participant might not record his own conversation with another over a telephone that he was otherwise rightfully using. (Commonwealth v. Goldberg (1966) 208 Pa.Super. 513 [224 A.2d 91].) Murray may not now reasonably be deemed authoritative.
Of the two statutes relied upon by Mr. Van Boven for his conclusion that of Michigan, as recodified in apparently the same language, provides that a person who "wilfully uses any device" to "record ... any part of the private discourse of others" (italics added) is subject to criminal sanctions. (Mich. Stat. Ann., §§ 28.807(1), 28.807(3).) Participant recording is not proscribed. The other statute is of Nevada. As relevant, it recites: "[I]t is unlawful for any person to intercept or attempt to intercept any wire communication unless: (a) Such interception or attempted interception is made with the prior consent of one of the parties to the communication...." (Nev. Rev. Stat., § 200.620.) Recording of one's telephone conversation may not reasonably be deemed "interception" of it. (See Parkhurst v. Kling, supra, 266 F.Supp. 780, 781 [fn. 3, ante].)
Judicial or other support (at least as of today) for Mr. Van Boven's dictum that California "is one of the few states to have outlawed participant monitoring by private parties" (italics added) is thus completely lacking.
I turn to the remaining support offered for our controlling decision.
People v. Wyrick, supra, 77 Cal.App.3d 903. Without consideration of the Act's stated purpose of proscribing "eavesdropping" (italics added) upon private communications, the court relied upon Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188, Commonwealth v. McCoy (1971) 442 Pa. 234 [275 A.2d 28]
Forest E. Olson, Inc. v. Superior Court, supra, 63 Cal.App.3d 188. Here the court placed its sole reliance upon the authority of Rogers v. Ulrich, supra, 52 Cal.App.3d 894, which will now be discussed.
Rogers v. Ulrich, supra, 52 Cal.App.3d 894. In a context closely paralleling that of the case at bench, Rogers filed an awkwardly fashioned two-count complaint for invasion of privacy against Ulrich. Count 1 was "for damages for recordation of a telephone conversation," which although not expressly so stated was brought, as here, under Penal Code section 632. The second count was expressly founded on section 631. Summary judgment was granted defendant Ulrich as to the first count and later, after trial, judgment was entered for him on count 2. Upon Rogers' appeal, the judgments were affirmed by Division Four of this court. Faced with the recognized ambiguity of the Act, the appellate court held that section 632 "arguably goes beyond the scope of section 631 in prohibiting not only eavesdropping, but also the recording of a confidential communication without the consent of all parties
Rogers v. Ulrich thus furnishes neither support for People v. Wyrick and Forest E. Olson, Inc. v. Superior Court, nor for the controlling opinion of this appeal. Indeed, if considered authoritative, it mandates affirmance of the judgment before us.
Nevertheless, it must be conceded that the Act contains some ambiguity. This is suggested by Mr. Van Boven, who advises that the Act is a product of an earlier "hodgepodge of statutes" which "left much to be desired." It is "flawed" with "ambiguities" and "deficiencies and oversights," and it "is badly in need of simplification." (57 Cal.L.Rev., passim.) And it has been judicially observed that in "some aspects the provisions of [the Act] are patently ambiguous." (People v. Wilson (1971) 17 Cal.App.3d 598, 602 [94 Cal.Rptr. 923]; italics added.)
The ambiguity of the Act is also pointed up by our controlling opinion where we consider the following language of Penal Code section 633.5: "Nothing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication" from recording it in aid of law enforcement. A meaning may perhaps be inferred that since section 632 does not also so provide, it does prohibit "one party to a confidential communication" from recording it. But section 633.5 may also be deemed but an iteration of the Act's preamble, proscribing only "eavesdropping." Section 637 is also significant; it purports to permit a party to a telephone communication who records it without permission of the other, to freely disclose the recording to third persons without exposure to the Act's sanctions; such a statutory indulgence seems wholly at odds
Such contradictions as appear in the Act lend force to Mr. Van Boven's observation of a "hodgepodge" of "ambiguities" "badly in need of simplification," but they do not reasonably detract from the Legislature's clearly announced objective to abolish "eavesdropping" upon private communications.
The ambiguity of our immediate concern is, of course, created by section 630's stated purpose of proscribing "eavesdropping upon private communications," and section 632's forbiddance of eavesdropping upon, "or recording," such communications. The issue is whether, by the unqualified term "recording," the Legislature intended that the Act's sanctions apply also to a party to private communications who does nonconsensually record them, but cannot, and thus does not, eavesdrop upon them.
An ambiguous statute should be read by us "in the light of the objective sought to be achieved by it, ..." (People v. Carroll (1970) 1 Cal.3d 581, 584 [83 Cal.Rptr. 176, 463 P.2d 400]; italics added.) Its discordant provisions should be "reconciled," and "harmonized," and the "integrity of both" should be maintained if at all possible. (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 596 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038]; People v. Trieber (1946) 28 Cal.2d 657, 661 [171 P.2d 1]; Penziner v. West American Finance Co. (1937) 10 Cal.2d 160, 176 [74 P.2d 252]; all italics added.)
Such a reasonable accommodation of the two code sections does not appear difficult.
In drafting a statute proscribing "eavesdropping" upon private telephone communications it would soon become apparent that a closely related evil, and possible "loophole," would be the nonconsensual recording of such a communication by a third party which, at least debatably, would not come under the narrow definition of "eavesdropping." To cope with such an evil the Legislature might reasonably in drafting section 632, have added the words "or records" to the word "eavesdrops," relying upon section 630's expressly stated purpose, to give the statute the meaning of recording under circumstances where the malefactor, if actually listening, would have been eavesdropping..
It is, of course, a fundamental rule of statutory interpretation that the court "`should ascertain the intent of the Legislature so as to effectuate the purpose of the law.'" (Tripp v. Swoap (1976) 17 Cal.3d 671, 679 [131 Cal.Rptr. 789, 552 P.2d 749], italics added; People ex rel. Younger v. Superior Court (1976) 16 Cal.3d 30, 40 [127 Cal.Rptr. 122, 544 P.2d 1322]; Merrill v. Department of Motor Vehicles (1969) 71 Cal.2d 907, 918 [80 Cal.Rptr. 89, 452 P.2d 33]; Select Base Materials v. Board of Equal. (1959) 51 Cal.2d 640, 645 [335 P.2d 672].)
Reasonably, and authoritatively, the Legislature's purpose will best be perceived when it is expressly stated in the statute. "[O]rdinarily it is the rule that, when the law-making power distinctly states its design in the enactment of a particular statute, no room is left for construction, ..." (Coulter v. Pool (1921) 187 Cal. 181, 185 [201 P. 120], italics added; Federoff v. Birks Bros. (1925) 75 Cal.App. 345, 349 [242 P. 885].)
As has been noted, Penal Code section 630 is a preamble to the Act. It "declares" the legislative purpose to be the prevention "of eavesdropping upon private communications" (italics added) thus to "protect the right of privacy of the people of this state." By definition one who is a party to a communication cannot "eavesdrop" upon it. The Act's express declaration of purpose accordingly eliminates a party to its described telephone "communication" from its coverage. As stated by Coulter v. Pool, supra, 187 Cal. 181, 185, and Federoff v. Birks Bros., supra, 75 Cal.App. 345, 349, "no room is left for construction, ..."
It may properly be emphasized at this point that we are concerned with a penal statute imposing a possible state prison term of three years for its violation. "When language which is reasonably susceptible of two constructions is used in a penal law ordinarily that construction which is more favorable to the offender will be adopted." (People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401].) The accused violator "is entitled to the benefit of every reasonable doubt ... as to the ... construction of language used in a statute." (In re Tartar (1959) 52 Cal.2d 250, 257 [339 P.2d 553]; and see Keeler v. Superior Court (1970) 2 Cal.3d 619, 631 [87 Cal.Rptr. 481, 470 P.2d 617, 40 A.L.R.3d 420]; People v. Baker (1968) 69 Cal.2d 44, 46 [69 Cal.Rptr. 595, 442 P.2d 675].)
Moreover, as plaintiff urges and as pointed out, the Act imposes treble damages, or cumulative forfeitures of $2,500 or $3,000 for each violation without regard to the actual damages suffered. "The law traditionally disfavors forfeitures and statutes imposing them are to be strictly construed." (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 906 [98 Cal.Rptr. 57, 489 P.2d 1385]; and see Irwin v. Irwin (1977) 69 Cal.App.3d 317, 322 [138 Cal.Rptr. 9].) "Of two or more possible constructions, `the construction which avoids a forfeiture should be favored.'" (Flagg v. Andrew Williams Stores, Inc. (1954) 127 Cal.App.2d 165, 176 [273 P.2d 294].)
It must also reasonably be concluded that a breach of trust by a telephone communicant in recording his own conversation with another presents far less of a public evil than third-party interception, or eavesdropping. Such a rationale, we think, is widely recognized. Mr. Van Boven concedes that "the chilling effect of participant monitoring is generally less than that of third-party surveillance," and it is "relatively innocuous." It should, he says, "be classed as a misdemeanor at most and possibly freed from criminal sanctions altogether." (57 Cal.L.Rev., pp. 1239, 1240 and fn. 332.) It seems most unlikely that the Legislature intended, nevertheless, to visit the awesome penalties of the Act upon persons situated as was Melvin Kahn who, guilty of neither eavesdropping nor interception, simply made a recording of his own telephone conversation with another.
The federal statute comports with the following rationale of Justice Byron White, concurring in Katz v. United States (1967) 389 U.S. 347, 363, fn. [19 L.Ed.2d 576, 589, 88 S.Ct. 507]: "When one man speaks to another he takes all the risks ordinarily inherent in so doing, including the risk that the man to whom he speaks will make public what he has heard. The Fourth Amendment does not protect against unreliable (or law-abiding) associates.... It is but a logical and reasonable extension of this principle that a man take the risk that his hearer, free to memorize what he hears for later verbatim repetitions, is instead recording it or transmitting it to another." Lesser federal courts appear to have consistently applied that rationale in respect of the federal statute, and related constitutional principles. In United States v. DeVore (4th Cir.1970) 423 F.2d 1069, 1074 (cert. den., 402 U.S. 950 [29 L.Ed.2d 119, 91 S.Ct. 1604]), the court said: "When a defendant has a conversation with another person he relinquishes his right of privacy with respect to that person. He may constitutionally complain of breach of privacy by an eavesdropper, but not of a breach of trust by the person he chooses to trust, however unwisely. Since the participants in a conversation are privileged to tell what was said, it necessarily must follow that a recording of what was said may either be used to corroborate the revelation, or simply as a more accute [sic] means of disclosure." (See also Koran v. United States (5th Cir.1969) 408 F.2d 1321, 1323-1324 [cert. den., 402 U.S. 948 (29 L.Ed.2d 118, 91 S.Ct. 1603)]; United States v. Kaufer (2d Cir.1969) 406 F.2d 550, 551-552 [affd. without opn. (1969) 394 U.S. 458 (22 L.Ed.2d 414, 89 S.Ct. 1223)]; Holt v. United States (10th Cir.1968) 404 F.2d 914, 919-920 [cert. den., 393 U.S. 1086 (21 L.Ed.2d 779, 89 S.Ct. 872)].) It is reasonable to assume that had California's Legislature intended to depart from this widely accepted rationale it would have said so in unmistakable language.
Consideration is overdue perhaps, of the related expressions on the subject before us by California's Supreme Court. (See Auto Equity
Tavernetti v. Superior Court (1978) 22 Cal.3d 187 [148 Cal.Rptr. 883, 583 P.2d 737]. The high court upheld the Act against the People's contention that the fruits of third-party eavesdropping upon a telephone communication should not be suppressed as evidence. In doing so, it stated (p. 192): "When the contents of a private wire communication, e.g., a telephone conversation, are intercepted by one not a party to the communication, disclosure is to be penalized" (italics added) by the Act.
People v. Conklin (1974) 12 Cal.3d 259 [114 Cal.Rptr. 241, 522 P.2d 1049]. The defendant had "installed [and used] a system designed to intercept" (p. 262, fn. 1) private telephone conversations of others. The court held that the Act's requirement that all parties to a telephone communication give their consent to a third-party interception of it was not in conflict with preemptive federal law. It was iterated (p. 272, fn. 12) that the Act prohibits "the interception of wire communications." (Italics added.) No suggestion appears that the Act forbids monitoring or recording by a party to the communication.
People v. Murphy (1972) 8 Cal.3d 349 [105 Cal.Rptr. 138, 503 P.2d 594] (cert. den., 414 U.S. 833 [38 L.Ed.2d 68, 94 S.Ct. 173]). Here the contention was that the recording of a telephone conversation was violative of an accused's Fourth Amendment rights. It was held that the constitutional guaranty was "intended to protect ... persons only from the `uninvited ear'..., not from a breach of trust by one of the parties to the conversation...." (P. 359.) Further, the court observed: "We ... perceive no distinction between the risk one faces that the person in whom he confides will later breach that trust by testifying about the conversation and the risk that such person has already betrayed him and is instantaneously transmitting their conversation electronically to police equipped with radio receivers.... `For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. We think the risk that petitioner took in offering a bribe to [the agent] fairly included the risk that the offer would be accurately reproduced in court, whether by faultless memory or mechanical recording.'" (P. 360.)
Two cases of the state's Courts of Appeal are also instructive.
People v. Buchanan (1972) 26 Cal.App.3d 274, 288 [103 Cal.Rptr. 66]. "[T]he prohibitory sections of the [Act] expressly apply only to intentional wiretapping [i.e., § 631] and eavesdropping." (Italics added.)
Mr. Witkin's review of the Act found no purpose to hold a party to a telephone communication subject to its sanctions. He concluded: "New P.C. 631 covers the subject of repealed P.C. 640... i.e., the crime of unauthorized interception of communications `without the consent of all parties'" and that "New P.C. 632 covers the subject of repealed P.C. 653j, i.e., eavesdropping on a `confidential communication' by means of `any electronic amplifying or recording device.'" (Witkin, Cal. Evidence 2d (1977 supp. to ch. II) Exclusion of Illegally Obtained Evidence, §§ 147B-147C, pp. 301-302; italics added.)
For all of these reasons I am of the opinion that our holding in respect of section 632 of the Act is erroneous.
For yet another, and heretofore undiscussed, reason the result we have reached is believed by me to be legally unacceptable.
Our controlling opinion's holding rests only upon Penal Code section 632. Plaintiff Warden's contentions insofar as they are based upon section 631 have been rejected.
A strict requirement for the application of section 632 is that its subject be a "confidential communication," which is defined to include "any communication carried on in such circumstances as may reasonably indicate that any party to such communication desires it to be confined to such parties, ..."
Plaintiff Warden and defendant Melvin Kahn were, respectively, attorney and client. The telephone communications of the case concerned Warden's legal representation of Kahn in "disputes and litigations" with others.
In respect of a "confidential communication" between a lawyer and client, the client is the "holder of the privilege" (Evid. Code, § 953); the lawyer is not. If the client shall "waive" the privilege he will have terminated its confidentiality (Evid. Code, § 912). The lawyer "is in no
I would affirm the judgment of the superior court in its entirety.
A petition for a rehearing was denied January 3, 1980. Elkington, J., was of the opinion that the petition should be granted. Appellant's petition for a hearing by the Supreme Court was denied February 7, 1980. Bird, C.J., was of the opinion that the petition should be granted.
Penal Code section 632: "(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records such confidential communication, whether such communication is carried on among such parties in the presence of one another or by means of a telegraph, telephone or other device, except a radio, shall be punishable by fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in the county jail not exceeding one year, or by imprisonment in the state prison, or by both such fine and imprisonment in the county jail or in the state prison.... [¶] (b) The term `person' includes an individual, business, association, partnership, corporation, or other legal entity, and an individual acting or purporting to act for or on behalf of any government or subdivision thereof, whether federal, state, or local, but excludes an individual known by all parties to a confidential communication to be overhearing or recording such communication. [¶] (c) The term `confidential communication' includes any communication carried on in such circumstances as may reasonably indicate that any party to such communication desires it to be confined to such parties, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded."
We also disagree with our dissenting colleague's suggestion that section 637, insofar as it permits a party to a telephone communication to disclose its contents to others, is somehow inconsistent with an interpretation of section 632 as prohibiting recording of a conversation. For reasons stated elsewhere in our opinion, we find the distinction quite reasonable.
Since this argument was not raised in the trial court, and involves a potential factual issue, its consideration on appeal would be inappropriate. We note for the guidance of the trial court on remand, however, that respondents are correct in contending that the action is one to recover a "statutory penalty or forfeiture" within the meaning of Code of Civil Procedure section 340, subdivision 1. (Cf. Holland v. Nelson (1970) 5 Cal.App.3d 308, 312 [85 Cal.Rptr. 117].)