Goodall's Charter Bus Service, Inc. v. San Diego Unified School District

125 Cal. App. 3d 194, 178 Cal. Rptr. 21, 1981 Cal. App. LEXIS 2309

• Court: California Court of Appeal
• Decided: November 3, 1981
• Docket: Civ. 22587
• Status: Published

Opinions

Opinion

BROWN (Gerald), P. J.

Goodall’s Charter Bus Service, Inc., appeals the judgment dismissing its lawsuit against the San Diego Unified School District (School District) after the court granted the School District’s motion for summary judgment and denied Goodall’s motion for leave to amend its complaint.

Goodall’s provides bus services under a contract with the School District. In order to improve service, in late 1974 or early 1975 during negotiations for the contract, the School District told Goodall’s it would be necessary for Goodall’s to install a two-way radio system for communication between its drivers and dispatchers. The School District also proposed to monitor these communications. Goodall’s agreed to install a radio system but did not consent to the monitoring. Goodall’s began providing bus services to the School District under the contract in June 1976. After obtaining a business radio frequency and a license from the Federal Communications Commission, Goodall’s installed and began using a two-way radio system in its buses. The School District then learned Goodall’s frequency, bought a crystal tuned to that frequency, and placed it in the School District’s scanner. The School District began monitoring Goodall’s radio broadcasts about November 1, 1975. From the monitoring the School District learned which of Goodall’s buses had arrived late and, based on this information, assessed contractual penalties for late arrivals. Goodall’s learned of the monitoring in January 1976 and demanded its cessation.

After Goodall’s learned of the monitoring, it sued the School District, alleging the School District had wrongfully intercepted the radio transmissions between its dispatchers and drivers during November and December 1975 and January 1976. Goodall’s based its lawsuit on a federal statute authorizing a person whose “oral communications” have been unlawfully intercepted to bring a civil action for damages (18 U.S.C. § 2520). The statute defines “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” (18 U.S.C. § 2510(2).) To maintain a cause of action under the statute, the plaintiffs subjective expectation of privacy in his oral communications is not sufficient; the expectation must be reasonable (United States v. Hall (9th Cir. 1973) 488 F.2d 193, 196).

The School District moved for summary judgment. The superior court found no triable factual issue with respect to the reasonableness of Goodall’s expectation of privacy in its radio transmissions and concluded Goodall’s broadcasts were not “oral communications” within the meaning of the statute. The court granted the motion for summary judgment, and Goodall’s appeals.

The court may grant a summary judgment favoring a defendant where the plaintiffs action has no merit and the defendant is entitled to judgment as a matter of law (Code Civ. Proc., § 437c). “If the defendants’ declarations in support of a motion for summary judgment .. . demonstrate an absence of an essential element of plaintiffs case, and the plaintiffs declaration in reply does not show that a triable issue of fact with respect to .. . that essential element exists, no amount of factual conflicts upon other aspects of the case will affect the result and the motion for summary judgment should be granted.” (Frazier, Dame, Doherty, Parrish & Hanawalt v. Boccardo, Blum, Lull, Niland, Teerlink & Bell (1977) 70 Cal.App.3d 331, 338 [138 Cal.Rptr. 670].) Here the summary judgment for the School District was appropriate only if its declarations established Goodall’s could not have had a reasonable expectation of privacy in its radio broadcasts, and Goodall’s declarations in reply raised no triable issue of fact with respect to reasonableness.

The reasonableness of Goodall’s expectation of privacy depends, in the first place, on the nature of the medium it used for its communications: “Broadcasting communications into the air by radio waves is more analogous to carrying on an oral communication in a loud voice or with a megaphone than it is to the privacy afforded by a wire. As with any broadcast into the air, the invitation to listen is afforded to all those who can hear.” (United States v. Hall, supra, 488 F.2d 193, 196.) Consequently, a person broadcasting by radio may not automatically assume his conversations will be private. If he nevertheless expects privacy, the reasonableness of his expectation depends on the circumstances under which he broadcasts (United States v. Hall, supra, 488 F.2d 193, 196).

In support of its motion for summary judgment, the School District offered extensive evidence about the nature and operations of the business radio system. Each frequency in the system is shared by several licensees; the frequency can be, used by only one licensee at a time; when a licensee wishes to broadcast, he should first listen in on the frequency to make sure no other licensee is using it. From November 1975 through January 1976, at least one other licensee was using the frequency assigned to Goodall’s. The names of licensees and their assigned frequencies are matters of public record; anyone can obtain this information from the local office of the Federal Communications Commission. Crystals tuned to frequencies in the business radio system are sold to the public without restriction; anyone can buy a crystal tuned to a particular frequency, place the crystal in a scanner, and listen to broadcasts on that frequency. The School District’s declarations furnished an ample basis for the court to conclude Goodall’s, as a licensee using a frequency in the business radio system, could not reasonably expect its broadcasts to be private.

Goodall’s declarations opposing the motion establish only its subjective expectation o( privacy in its radio broadcasts; the School District’s declarations on the crucial issue of reasonableness remain uncontroverted. Because Goodall’s declarations raise no triable issue with respect to the reasonableness of its expectation of privacy, the trial court did not err in granting the School District’s motion for summary judgment.

After the School District moved for summary judgment, Goodall’s sought leave to amend its complaint to state a cause of action under section 605 of the Communications Act of 1934, which prohibits disclosure of the contents of intercepted radio communications (47 U.S.C. § 605). The trial court did not err in denying Goodall’s motion. It would be anomalous indeed to permit Goodall’s to maintain an action for disclosure of radio broadcasts which it could not reasonably expect to be private.

The judgment is affirmed.

Cologne, J., concurred.