Safari Club Int'l v. Lawrence Rudolph
845 F.3d 1250
9th Cir.2017Background
- Rudolph, a longtime Safari Club International (SCI) member and former president, secretly audio/video recorded a five-hour lunch conversation with SCI president John Whipple in a Los Angeles restaurant and later posted edited and unedited videos online.
- Whipple (substituted by his successor-in-interest after his death) and SCI sued in California state court asserting Penal Code §632 (illegal recording of confidential communications), negligence per se (based on §632), and common-law invasion of privacy, among other claims; Rudolph removed and moved to strike under California’s anti‑SLAPP statute.
- The district court granted Rudolph’s anti‑SLAPP motion as to some claims but denied it as to the §632 statutory claim, negligence per se, and common‑law invasion of privacy; Rudolph appealed the denials.
- On appeal the Ninth Circuit framed the anti‑SLAPP two-step inquiry: (1) whether the challenged claims arise from protected petition/speech-related conduct, and (2) whether plaintiffs show a reasonable probability of prevailing.
- The court held Rudolph’s clandestine recording constituted conduct in furtherance of protected free‑speech/newsgathering activity but found plaintiffs presented sufficient evidence (chiefly Whipple’s declaration) to show a triable issue that the conversation was a “confidential communication” and that plaintiffs had a reasonable probability of prevailing on the §632, negligence per se, and invasion‑of‑privacy claims.
- The Ninth Circuit affirmed the district court’s denial of Rudolph’s anti‑SLAPP motion as to those three claims and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the surreptitious recording "arises from" protected petition/free‑speech conduct for anti‑SLAPP purposes | The recording was secret and unlawful but was used to expose alleged SCI misconduct; plaintiffs did not contest that the recording related to public‑interest speech | Rudolph argued the recording was newsgathering/speech in furtherance of public interest and thus protected under §425.16 | Court: Recording qualifies as conduct in furtherance of free speech (anti‑SLAPP step one) (newsgathering analogy) |
| Whether plaintiffs can show a reasonable probability of prevailing on the §632 statutory claim (confidential communication) | Whipple declared the conversation was private, they lowered voices when others approached, and he never consented to recording | Rudolph argued the restaurant setting and video evidence show no objectively reasonable expectation of privacy; public place negates confidentiality as a matter of law | Court: Triable issue exists; Whipple’s declaration could support a finding of an objectively reasonable expectation of privacy — §632 claim survives anti‑SLAPP strike |
| Whether negligence per se (based on §632) meets the reasonable‑probability standard | Plaintiffs contend §632 was violated, that caused injury, and the statute protects people like Whipple | Rudolph reiterated that §632 cannot be shown because conversation was not confidential | Court: Because plaintiffs made a prima facie §632 showing, negligence per se (tied to §632) likewise survives anti‑SLAPP step two |
| Whether common‑law invasion of privacy (intrusion and offensiveness) survives anti‑SLAPP review | Whipple asserted intrusion via covert electronic recording by a trusted friend and public dissemination; conduct was highly offensive | Rudolph argued public setting, adversarial context, and video evidence negate reasonable privacy expectation and offensiveness | Court: Plaintiffs showed sufficient evidence on both intrusion and offensiveness such that a reasonable jury could find in their favor; claim survives anti‑SLAPP strike |
Key Cases Cited
- Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156 (Cal. Ct. App. 2003) (surreptitious recording/newsgathering can be conduct in furtherance of free speech under anti‑SLAPP)
- Flanagan v. Flanagan, 27 Cal. 4th 766 (Cal. 2002) (section 632 confidential‑communication test: objectively reasonable expectation of privacy)
- Sanders v. American Broad. Cos., Inc., 20 Cal. 4th 907 (Cal. 1999) (privacy is relative; public setting does not automatically defeat objectively reasonable expectation of privacy)
- Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (Cal. 2009) (intrusion tort elements; consider layout, setting, and means of intrusion)
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (standard for anti‑SLAPP step two: plaintiff must show reasonable probability of prevailing)
- Flatley v. Mauro, 39 Cal. 4th 299 (Cal. 2006) (anti‑SLAPP may be invoked unless the challenged conduct is illegal as a matter of law)