Faunce v. Cate, 222 Cal. App. 4th 166

Plaintiff David W. Faunce, a convicted inmate serving life without parole at R.J. Donovan, sued prison officials alleging they eavesdropped on physician–patient conversations in violation of Penal Code § 636 and the California Constitution, and asserted related claims (IIED, conspiracy, declaratory/injunctive relief, and retaliation).
Faunce alleged prison policy permitted correctional officers to be present during medical examinations despite his objections; he sought a preliminary injunction and damages.
The trial court sustained defendants’ demurrer to the operative (second amended) complaint without leave to amend, concluding Faunce failed to plead a reasonable expectation of privacy and that several other claims were deficient. The court also denied the preliminary injunction.
Faunce appealed the judgment and separately attempted to appeal the injunction denial. The Court of Appeal dismissed the appeal as to the injunction denial for lack of jurisdiction and timeliness.
On the merits, the appellate court affirmed dismissal: Faunce’s pleadings did not establish a reasonable expectation of privacy in prison medical encounters given security-based institutional policies; his IIED and conspiracy claims were deficient; injunctive/declaratory relief were derivative; and the retaliation claim improperly exceeded the leave to amend.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether §636/constitutional privacy claims were pleaded (reasonable expectation of privacy)	Faunce: physician–patient conversations in treatment room are absolutely private; presence of officer violated §636 and state privacy rights	Defendants: officer presence was authorized by security policies; inmates’ privacy is limited by penological interests	Held: No reasonable expectation of privacy shown; claims dismissed
Whether preliminary injunction denial is appealable	Faunce: attempted to appeal injunction denial along with judgment	Defendants: (procedural) notice of appeal did not identify injunction order and appeal was untimely	Held: Appeal of injunction denial dismissed for lack of jurisdiction and as untimely
Whether IIED claim was sufficiently pleaded (outrageous conduct)	Faunce: institutional practice of allowing officers in exams amounted to outrageous conduct	Defendants: conduct was security-based policy, not extreme or outrageous	Held: IIED failed as a matter of law
Whether conspiracy, declaratory, injunctive, and retaliation claims were viable	Faunce: conspiracy and remedies supported by underlying privacy violations; added retaliation claim in second amended complaint	Defendants: conspiracy is derivative; declaratory/injunctive are remedies (not independent causes); retaliation exceeded leave to amend and lacked exhaustion	Held: Conspiracy and remedies dismissed as derivative; retaliation improperly added and dismissed

Blank v. Kirwan, 39 Cal.3d 311 (1985) (standard of review for demurrer without leave to amend)
Hill v. National Collegiate Athletic Assn., 7 Cal.4th 1 (1994) (reasonable expectation of privacy and invasion are mixed law/fact; adjudicable as matter of law when facts undisputed)
Pioneer Electronics (USA), Inc. v. Superior Court, 40 Cal.4th 360 (2007) (constitutional privacy protects reasonable expectations against serious invasions)
Christensen v. Superior Court, 54 Cal.3d 868 (1991) (elements for intentional infliction of emotional distress)
Davidson v. City of Westminster, 32 Cal.3d 197 (1982) (outrageous conduct standard for IIED)
Polster, Inc. v. Swing, 164 Cal.App.3d 427 (1985) (appellate jurisdiction limited to issues in notice of appeal)
Delmonico v. Laidlaw Waste Systems, Inc., 5 Cal.App.4th 81 (1992) (untimely notice of appeal is absolute bar to jurisdiction)
Okun v. Superior Court, 29 Cal.3d 442 (1981) (conspiracy is not an independent cause of action)
Ochs v. PacifiCare of California, 115 Cal.App.4th 782 (2004) (injunctive/declaratory relief are equitable remedies and derivative)