Warden v. Kahn

99 Cal. App. 3d 805, 160 Cal. Rptr. 471, 1979 Cal. App. LEXIS 2375

• Court: California Court of Appeal
• Decided: December 14, 1979
• Docket: Civ. 43440
• Status: Published

Opinions

Opinion

GRODIN, J.

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.

Procedural Background

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 telephone conversations between plaintiff and said Melvin Kahn” concerning such matters; that Melvin Kahn made the recordings of such conversations available to the defendant Julius Kahn; and that Julius Kahn communicated the contents thereof and made the recordings available to the defendants Lorin Blum and Blum & Blum, a law corporation, for the use of defendant Julius Kahn in “presenting fraudulent claims against plaintiff, and to extort settlements and/or monetary concessions from plaintiff to said Julius Kahn to which said Julius Kahn was not justly entitled.” The prayer for relief sought judgment under Penal Code section 637.2 for damages and injunctive relief.

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. G;a 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.

Appellant’s challenge to the propriety of the trial court’s action in striking his second amended complaint need not detain us long. The first amended complaint was founded solely on defendants’ alleged violation of the Invasion of Privacy Act. The second amended compláint stated entirely new causes of action, alleging violation of an entirely different primary right, and was based upon an entirely different set of facts. Although, of course, great liberality will ordinarily be allowed in the amendment of a complaint after the sustaining of a demurrer, it is settled law that a party may not file an amended complaint which states such an entirely new and different cause of action. (See Smeltzley v. Nicholson Mfg. Co. (1977) 18 Cal.3d 932, 934 [136 Cal.Rptr. 269, 559 P.2d 624, 85 A.L.R.3d 121]; Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600-601 [15 Cal.Rptr. 817, 364 P.2d 681]; Klopstock v. Superior Court (1941) 17 Cal.2d 13, 20-21 [108 P.2d 906, 135 A.L.R. 318]; Barba v. Superior Court (1966) 239 Cal.App.2d 572, 577-578 [49 Cal.Rptr. 60]; Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 506-507 [24 Cal.Rptr. 761]; Lewis & Queen v. Edmondson & Sons (1952) 113 Cal.App.2d 705, 711 [248 P.2d 973].) The superior court did not err in striking plaintiff’s second amended complaint.¹

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 dominant objective of the act, as reflected in its preamble, is “to protect the right of privacy of the people of this state.” (Pen. Code, § 630. See People v. Conklin (1974) 12 Cal.3d 259, 270 [114 Cal.Rptr. 241, 522 P.2d 1049]; Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 194 [148 Cal.Rptr. 883, 583 P.2d 737], See also Cal. Const., art I, § 1.) While Congress adopted a partially congruent statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968 (18 U.S.C.A. §§ 2510-2520), the federal enactment does not preclude the application of state standards which, as in the case of California’s statute, apply more restrictive rules. (People v. Conklin, supra, 12 Cal.3d at pp. 271-272. See also Carr, The Law of Electronic Surveillance (1977) § 2.04.)

The Invasion of Privacy Act provides criminal penalties for the offenses which it describes, but in addition, in section 637.2, it establishes a private cause of action on the part of “[a]ny person who has been injured by a violation of this chapter... against the person who committed the violation.... ” Appellant claims that his first amended complaint states facts constituting a violation of sections 631 and 632, the relevant portions of which are set forth in the margin.²

Insofar as section 631 is concerned, appellant’s claim is without merit. That section, which is quite ambiguous,³ has been held to apply only to eavesdropping by a third party and not to recording by a participant to a conversation. (Rogers v. Ulrich (1975) 52 Cal.App.3d 894 [125 Cal.Rptr. 306].)

Section 632 is a different matter. Its provisions “are much more straightforward than section 631, probably because they are of later origin.” (Van Boven, supra, 57 Cal.L.Rev. at p. 1203.) The language of that section applies to any 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.” This language has uniformly been construed to prohibit one party to a confidential communication from recording that communication without knowledge or consent of the other party. (Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188 [133 Cal.Rptr. 573] (Second Dist.); People v. Wyrick (1978) 77 Cal.App.3d 903, 909 [144 Cal.Rptr. 38] (Third Dist.); see also Rogers v. Ulrich, supra, 52 Cal.App.3d at p. 899 (First Dist.) (dicta).)⁴ This construction is not only upon the language of section 632 itself, but, as Justice Ashby’s opinion in Olson notes,⁵ upon legislative history and other provisions of the statute. The language derives from former section 653j (Stats. 1963, ch. 1886, § 1, p. 3871), which applied only to a person or agent “not a party to the communication,” who eavesdropped or recorded a confidential communication “without the consent of any party.” Since the quoted language represents practically the only changes from the former statute, the implication of legislative intent to make section 632 applicable to participant recording seems reasonably substantial. That implication is underscored by section 633.5, which provides that “[n]othing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of [certain specified crimes].” As the appellate court noted in Forest E. Olson, supra, the presence of section 633.5 in the Invasion of Privacy Act is inexplicable except on the assumption that the Legislature intended at least some portion of the act to apply to participant recording.⁶ (63 Cal.App.3d at p. 192.)

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 privacy of communication—the right to control the extent of first instance dissemination of his statements.” (Ibid.) In terms of common experience, we are all likely to react differently to a telephone conversation we know is being recorded, and to feel our privacy in a confidential communication to be invaded far more deeply by the potential for unauthorized dissemination of an actual transcription of our voice. Van Boven states that California “is one of the few states to have outlawed participant monitoring by private parties. This was the major change effected by the 1967 Privacy Act . . . . ” (Id., at p. 1235.)

We are mindful of the general principle that in a criminal prosecution the defendant should be given the benefit of doubt as between two plausible interpretations of a penal statute. (E.g., People v. Ralph, supra, 24 Cal.2d at p. 581.) The other side of that principle is that it is “only an aid to construction and cannot be invoked until the statute is shown to be ambiguous or uncertain as applied to the particular defendant.” (People v. Alday (1973) 10 Cal.3d 392, 395 [110 Cal.Rptr. 617, 515 P.2d 1169].) We do not find such ambiguity or uncertainty here. This is, of course, a civil rather than a criminal proceeding; but we note that our interpretation of section 632 has been applied in a criminal context, and upheld against constitutional attack based upon alleged indefiniteness. (People v. Wyrick, supra, 77 Cal.App.3d at p. 907.) The provisions of the Penal Code are to be construed “according to the fair import of their terms.” (Pen. Code, § 4.) We believe the fair import of section 632 is in accord with the interpretation we express.

Respondents, in fact, concede that section 632 prohibits one party to a telephone conversation from intentionally recording a confidential communication without the knowledge or consent of the other. They contend that no “confidential communication” was involved because the circumstances were such that “the parties to the communication may reasonably [have] expect[ed] that the communication [would] be overheard or recorded.” (Pen. Code, § 632, subd. (c).) They argue broadly that an attorney should have no basis for expecting that his consultation with a client will be secret or confidential, and they point to the fact that the attorney-client evidentiary privilege exists for the benefit of the client, not the attorney. They also argue more narrowly, based on the stipulated fact that Melvin Kahn is blind, that an attorney must be held as a matter of law to expect that his telephone conversations with a blind client will be recorded.

We are unable to accept either argument as a matter of law. The definition of “confidential communication” in section 632 transcends the ownership of an evidentiary privilege. It calls for a determination as to whether the “circumstances... reasonably indicate that any party to such communication desires it to be confined to such parties,” or whether the circumstances are such that “the parties to the communication may reasonably expect that the communication may be. . .recorded.” That one of the parties to the conversation is a client of the other, and “owns” a privilege which he may waive by testifying as to the contents of the conversation may well be part of the “circumstances” to be considered, but it is hardly determinative of the statutory issue. Similarly, the added fact that the client is blind may increase the likelihood of the attorney’s expectation that the conversation will be recorded, but the statute does not permit us to elevate that probability to the level of a conclusive presumption.⁷ If plaintiff chooses to persist in his action, the determination as to whether plaintiff knew or consented to the recording of his conversations by his client, or whether he should reasonably have expected that the communication would be recorded, will be questions for the fact finder. (Cf. People v. Pedersen (1978) 86 Cal.App.3d 987, 994 [150 Cal.Rptr. 577]; People v. Baker (1978) 88 Cal.App.3d 115, 123 [151 Cal.Rptr. 362].)

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. The judgment dismissing the first amended complaint as to Melvin Kahn is reversed⁸ and remanded for further proceedings not inconsistent with the views expressed herein. Appellant is to bear costs of appeal.

Racanelli, P. J., concurred.

1 Plaintiff also contends in his brief that the trial court erred in precluding plaintiff from filing a third amended complaint. No record reference is made to any such judicial act, or to any request for permission to file such a complaint. (See Cal. Rules of Court, rule 15(a).) We find no merit in this contention.

2 Penal Code section 631: “(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, including the wire, line, cable, or instrument of any internal telephonic communication system, or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any such wire, line, or cable, or is being sent from, or received at any place within this state; or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a 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.... ”

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. [H] (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.”

3 As one commentator has observed, referring to section 631, “[t]he antecedents of this complex statute date back to 1862 and, as a result of numerous previous amendments, it is badly in need of simplification.” (Van Boven, supra, 57 Cal.L.Rev. at p. 1200.) Section 631 contains two separate clauses dealing with wiretapping activities, the first making it an offense to “[tap], or [make] any unauthorized connection” with telephone or telegraph wires or equipment and the second forbidding the interception of messages in transit or during transmission and reception “without the consent of all parties.” (See Van Boven, supra, 57 Cal.L.Rev. at pp. 1200-1201.) The second clause clearly has no application to participant recording, and the operative terms of the first clause are “vague and nowhere defined.” (Rogers v. Ulrich, supra, 52 Cal.App.3d at p. 898.) Section 631 has been referred to as being in some respects “patently ambiguous.” (People v. Wilson (1971) 17 Cal.App.3d 598, 602 [94 Cal.Rptr. 923].) Since we are dealing with a penal statute, language so ambiguous should be interpreted in favor of the alleged violator. (People v. Ralph (1944) 24 Cal.2d 575, 581 [150 P.2d 401]; 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].)

4 In People v. Buchanan (1972) 26 Cal.App.3d 274, 288 [103 Cal.Rptr. 66], and in People v. Soles (1977) 68 Cal.App.3d 418, 420 [136 Cal.Rptr. 328], there is language to the effect that the privacy act applies to “eavesdropping,” but in neither case was that language remotely related to the issue under consideration here. In Buchanan, the question was whether the statute proscribes only intentional, as opposed to inadvertent, overhearing or intercepting of communications (26 Cal.App.3d at p. 287), and in Soles the question was whether the action of a motel manager in staying on the line after connecting an incoming call with the telephone of a guest constituted “electronic eavesdropping” within the meaning of the statute (68 Cal.App.3d at p. 420). Neither case involved participant recording. (Cf. also People v. Superior Court (Young) (1970) 13 Cal.App.3d 545, 548-549 [91 Cal.Rptr. 699]; People v. Jones (1973) 30 Cal.App.3d 852, 854-855 [106 Cal.Rptr. 749]; People v. Carbonie (1975) 48 Cal.App.3d 679, 685 [121 Cal.Rptr. 831].)

5 Contrary to the implication in the dissenting opinion, the Olson opinion does not place its “sole reliance upon the authority of Rogers v. Ulrich,” but rather engages in an independent analysis of legislative history and language, from which this opinion borrows heavily.

6 Our dissenting colleague suggests that section 633.5 “may also be deemed but an iteration of the Act’s preamble, proscribing only ‘eavesdropping.”’ If that were the function of section 633.5, however, there would certainly have been no reason to limit its application to the recording of only particular kinds of conversations.

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.

7 The Kahns argue in their brief that an interpretation of section 632 as depriving a blind person of the right to record his attorney’s advice would have the effect of denying such a person the equal protection of the laws under the Fourteenth Amendment to the federal Constitution, as well as freedom of speech under the First Amendment. We, of course, do not adopt such an interpretation. Nothing in the statute would prohibit a blind person from recording the advice of his attorney with the attorney’s knowledge or consent, or under circumstances in which the attorney otherwise had reason to expect that the conversation was being recorded.

8 The Kahns argue that it appears from the record that the statute of limitations had expired on any alleged Penal Code section 632 violation. This argument is based upon the allegations of the first amended complaint, filed in November 1976, to the effect that the alleged recordings occurred between 1964 and July 19, 1974. While the first amended complaint alleges also that plaintiff did not discover the recordation until April 30, 1976, the Kahns argue that allegation is belied by a letter dated June 27, 1974, from plaintiff to Melvin Kahn, which was submitted with Melvin Kahn’s declaration in support of a motion for summary judgment, and which makes reference to “numerous recordings... surreptitiously made.” Thus, the Kahns argue that plaintiff had knowledge of the recordings at least by June 27, 1974, and that the action was therefore barred by the one-year period of limitations prescribed both for actions upon a statute for penalty or forfeiture (Code Civ. Proc., § 340, subd. 1) and for general tort actions (Code Civ. Proc., § 340, subd. 3).

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].)