Safari Club Int'l v. Lawrence Rudolph, 2017 U.S. App. LEXIS 2416

Background

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 at a public restaurant and later posted edited and unedited videos online.
Whipple (now through his successor-in-interest, Joan Whipple) and SCI sued Rudolph in California state court asserting: statutory invasion of privacy (Cal. Penal Code § 632), negligence per se based on § 632, and common-law intrusion upon seclusion, among other claims. The case was removed to federal court.
Rudolph moved to strike under California’s anti-SLAPP statute (Cal. Civ. Proc. Code § 425.16); the district court granted the motion as to several claims but denied it as to the three privacy-related claims. Rudolph appealed.
On appeal the Ninth Circuit (affirming) considered (1) whether Rudolph’s recording was activity “in furtherance” of protected speech/petitioning and (2) whether plaintiffs showed a reasonable probability of prevailing on the § 632, negligence per se, and common-law invasion claims.
The court held Rudolph’s recording qualified as protected conduct (newsgathering / conduct furthering free speech on an issue of public interest), but plaintiffs presented sufficient evidence—principally Whipple’s declaration—to show a triable issue that the conversation was a confidential communication and that the recordings were intrusive and highly offensive. The anti-SLAPP motion was therefore properly denied as to those three claims.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Rudolph’s recording "arises from" protected petition/speech (anti-SLAPP step 1)	Recording was not shielded because it was illegal under § 632	Recording was newsgathering and conduct in furtherance of free speech on an organizational/governance public issue	Held: Recording is protected conduct under § 425.16(e)(4); anti-SLAPP step 1 met
Whether plaintiffs showed a reasonable probability of prevailing on statutory invasion (§ 632)	Whipple’s declaration shows he reasonably expected privacy and did not consent; recording fits § 632’s proscription	Public restaurant setting precludes objectively reasonable expectation of privacy; video shows no confidentiality	Held: Plaintiffs met the minimal prima facie showing; triable fact exists on objective expectation of privacy
Whether plaintiffs showed a reasonable probability of prevailing on negligence per se (based on § 632)	Violation of § 632 supports negligence per se, injury alleged, statute protects people whose conversations are secretly recorded	If § 632 not violated, negligence per se fails	Held: Plaintiffs met burden because § 632 violation is plausibly shown; negligence per se survives anti-SLAPP
Whether plaintiffs showed a reasonable probability of prevailing on common-law intrusion upon seclusion	Secret recording using friendship as subterfuge was an intrusion into a private conversation and sufficiently offensive	Public location and adversarial litigation context negate reasonable expectation / offensiveness	Held: Plaintiffs met the low threshold to show triable issues on intrusion and offensiveness; claim survives anti-SLAPP

Key Cases Cited

Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (anti-SLAPP burden-shifting and standard for reasonable probability of prevailing)
Lieberman v. KCOP Television, Inc., 110 Cal. App. 4th 156 (Cal. Ct. App. 2003) (surreptitious newsgathering can be conduct in furtherance of free speech)
Flanagan v. Flanagan, 27 Cal. 4th 766 (Cal. 2002) (objective-reasonableness test for expectation of privacy under § 632)
Sanders v. American Broad. Cos., Inc., 20 Cal. 4th 907 (Cal. 1999) (privacy is relative; public location does not automatically defeat an intrusion claim)
Hernandez v. Hillsides, Inc., 47 Cal. 4th 272 (Cal. 2009) (elements of common-law intrusion and factors for offensiveness)
Graham-Sult v. Clainos, 756 F.3d 724 (9th Cir. 2014) (de novo review of anti-SLAPP denials)