*1
Peoria,
(9th
ing
Cir.1983),
damages claim
there has been no
and
F.2d 468
Giles v.
(9th
likely
Ackerman,
showing
Cir.1984),
harm
individualized
future
injunctive predicated relief is solely on a satisfy damages
concurrent claim can irreparable injury requirement
likelihood of injunctive
to obtain relief. Conclusion Beverly DETERESA, Plaintiff-Appellant, If controlling we were unencumbered v. Supreme precedent, might we be in- clined, court, as was the district to allow AMERICAN BROADCASTING COMPA Nava access the federal courts NIES, INC.; Anthony Radziwill, aka An damages uphold basis of his claim and to thony Radziwell, Defendants-Appellees. entry injunction in this case on the No. 95-56748. jury’s basis of finding Nava’s father pursuant choked to death policy. CHP Appeals, United States Court of must, however, We follow the law it is Ninth Circuit. construed Court. The dis- Argued April and Submitted 1997. case, trict court did not do so in this and thus entering injunc- abused its discretion July Decided Accordingly, tion. we reverse and remand to injunction. the district court to vacate the and REMANDED.
REVERSED
FLETCHER, Judge, specially Circuit
concurring: City Angeles Because I read Los
Lyons, 461 U.S. 103 S.Ct. (1983),
L.Ed.2d deprive Nava of stand-
ing injunction, join seek an I cannot in the
majority’s opinion. I specially concur only.
result majority acknowledges we unless City
credit the rationales of Gonzales v. *2 Johnson,
Neville L. Neville L. Johnson & Associates, CA, plaintiff- Angeles, Los Beverly appellant Deteresa. Olson, Perry, Munger,
Steven M. Tolies & *3 CA, Angeles, defendants-appellees Los for Companies, American Broadcasting Inc. and Anthony Radziwill. TASHIMA,
Before: O’SCANNLAIN and WHALEY,* Judges; Circuit District Judge. Opinion O’SCANNLAIN; by Judge Partial Concurrence and Partial Dissent Judge WHALEY.
O’SCANNLAIN, Judge: Circuit pro- We must decide whether television against eavesdropping ducer violated laws surreptitiously taped when he his conversa- with appear tion a woman who on refused his show. 12, 1994, June Simpson
On Nicole Brown and Ronald Goldman were murdered at Ms. Simpson’s Angeles Shortly Los home. after murders, Simpson, Simpson’s O.J. Ms. ex-husband, Angeles traveled Los Chicago flight on American Airlines Beverly an on Deteresa was attendant flight. Radziwill, Anthony
On June producer Broadcasting Compa- for American nies, (“ABC”), Inc. door of came De- Irvine, teresa’s condominium California. Radziwill told Deteresa he worked for speak ABC and wanted to about appearing aon show television to discuss the identification, flight. Deteresa asked for picture Radziwill showed her ABC I.D. initially told Radziwill that she was appearing interested on show. reveal, however, She did she “frus- reports trated” to hear the flight news about * Whaley, ington, sitting designation. Honorable Robert H. United States Judge District for the District Wash- Eastern informed II knew were false. She that she instance, RadziwiU, contrary to the alleges Deteresa’s first cause of action heard, kept Simpson had not reports she had ABC and RadziwiU the California violated during also bag flight. in a She his hand eavesdropping statute when RadziwiU audio- many passengers how had sat RadziwiU told taped his conversation with Deteresa. Simpson and in which in first class seat 632(a) pro- California Penal Code section left, him Deteresa told sat. Before RadziwiU vides: appearing “think that she would about” show.
his
who,
Every person
intentionally and with-
out the consent
all
confi-
the next morn-
RadziwiU called Deteresa
*4
communication,
any
dential
means of
20,
again
her
ing,
1994. He asked
June
device,
amplifying
recording
electronic
or
go on
she would
camera. When
eavesdrops upon or records the confiden-
declined,
told
that he had au-
RadziwUl
communication,
tial
whether the communi-
previ-
entire
the
diotaped their
conversation
among
parties
cation is carried on
cameraper-
day. He also had directed a
ous
presence
of one another or means
videotape
pubUc
them from a
street
son to
device,
telegraph, telephone
aof
or other
hung
adjacent to Deteresa’s home. Deteresa
radio,
except
punished____
shall be
husband,
and
Mat-
up on RadziwUl
told her
637.2(a)
632(a).
§
Cal.Penal Code
Section
Deteresa,
happened. Mat-
what had
thew
permits
person
a civU action
who
against a
him
Deteresa caUed RadziwUl and told
thew
eavesdropping
Id.
violates
statute.
his wife did not want ABC to broadcast
that
637.2(a).
§
videotape.
rephed
RadziwUl
that ABC
consent
the video-
did not need
broadcast
parties dispute
What the
is whether
spoke
at
tape. Matthew then
with someone
audiotaped
RadziwUl
a “confidential commu
either
named “Doc.” Matthew asked
ABC
If the
nication.”
communication between
Detere-
Doc or RadziwUlnot
broadcast the
confidential,
RadziwUl and Deteresa was not
address,
name,
Beverly’s
audio-
sas’
or the
632(a)
apply.
section
does not
Section
tape.
defines “confidential communication” as
any communication
in circum-
carried on
night, ABC
a five-second
That
broadcast
may reasonably
stances as
indicate that
videotape
ehp
program
called
of the
any party to the communication desires it
“Day
ehp, an ABC
One.” Simultaneous to the
thereto,
parties
to be confined to
but
flight
stated that “the
attendant
announcer
in a
excludes a communication made
Simpson in
who served
the first class section
judicial,
any
or in
gathering
legislative,
not,
‘Day
widely
told
One’
she did
proceeding
executive
administrative
wrap
bag
him
in a
reported, see
his hand
pubhc,
open to the
other circum-
any portion
not
ice.” ABC did
broadcast
in which the
to the commu-
stance
audiotape.
expect
may reasonably
nication
court,
complaint
Deteresa filed
in federal
or re-
be overheard
diversity jurisdiction
invoking
under 28
corded.
1332,
RadziwiU,
against
U.S.C.
ABC
632(c).
statutory
“Application
Id.
(1)
unlawful
aUeging five causes
action:
‘confidential communication’
definition
eavesdropping
recording
on or
of confidential
expectations of the
turns on the reasonable
communications
violation of Cal.Penal
by an
parties judged
objective standard and
(2)
632(a);
physical
intrusion on soli-
Code
subjective assumptions of
by the
(3)
affairs;
private
or into
violation
tude
Sortino,
O’Laskey
224 Cal.
parties.”
v.
statute,
eavesdropping
18 U.S.C.
federal
(1990)
241,
674,
App.3d
Cal.Rptr.
(4)
2520;
conspiracy
§§
2511 &
fraud and
omitted).
(citation
fraud;
prac-
business
commit
unfair
stated
summary
courts have
two
granted
tices. The district court
California
competing
five
of what a
judgment
to ABC and
on all
formulations
RadziwUl
reasonably expect timely appeals.
a communication
causes of action. Deteresa
Court,
dard,
Superior
In
confidential.
Frio v.
not the
construing
Frio standard.
In
1480,
(1988),
statute,
Cal.App.3d
Cal.Rptr.
the California
Court “turns
first,”
should,
Appeal explained
the California
as it
“to the
words themselves
Reusser,
‘confidentiality’ appears
Lundquist
for the answer.”
“under section 632
v.
Cal.4th
require
Cal.Rptr.2d
nothing more than the existence of a
(1994) (internal
P.2d 1279
quotation
expectation
one of the
marks
plain
and citation
‘listening
overhearing
in’ or
Where the
no one is
clear,
meaning of the statute is
“courts will
conversation.”
Id. 250
at 824.
interpret away
however,
language
clear
in favor of
acknowledged,
The court
that confi-
ambiguity
People
that does not exist.”
v.
dentiality
narrowly
could be construed “more
Coronado,
Cal.4th
by defining
expectation
it as a reasonable
(1995) (internal
A someone’s bedroom without authorization to respect videotaping, attempt by paramedics. With film a rescue Mil ler, undisputed supra. facts show an insubstan material Nor is it a case in which someone impact privacy gained tial interests. Deteresa into entrance another’s home sub Time, Inc., dispute videotaped that she was terfuge. does not Dietemann v. 449 F.2d (9th Cir.1971). public cameraperson public view a a Nor is it a case in which place.3 private The California Court of ad investigator obtained entrance into situation in hospital by deception. dressed similar Aisenson room Noble v. Co., Sears, Co., Broadcasting Cal.App.3d 654, 109 American Cal.App.3d Roebuck & (1990): Cal.Rptr. Respondents’ camera crew averred that Rather, spoke voluntarily car, they videotaped appellant from their freely with an individual whom she knew was parked which was across the street from home, reporter. He did not enter her let They appellant his home. maintain that by deception trespass. alone did he enter public was in full view from the street at There is no evidence intimate de- videotaped. Appellant the time he was anyone’s tails of life were recorded. No pho- claims he could not be seen portion of what was recorded was ever tographer’s location unless an enhanced broadcast. not, being lens was used. He does howev- properly The district court concluded from er, driveway claim that his car and the undisputed these facts that the intrusion was where he was were outside of filmed sufficiently offensive to state a common view. Nor has he shown that his home law intrusion into seclusion claim. plate address or his car license number most, were At disclosed. the evidence *7 IV any privacy shows invasion of which third cause of action al Deteresa’s place extremely took de minimus [sic] leges that ABC and Radziwill violated the because the camera crew did not encroach statute, eavesdropping federal 18 U.S.C. appellant’s property. §§ audiotaped 2511 and when Radziwill Any Id. 269 at 388. invasion of his conversation with Deteresa. Section was, likewise, privacy in this case de minimis. prohibits interception and disclosure of dispute videotaped With no De- ABC oral communications in certain circum public place, teresa view from a stances, provides and a civil action only clip tape, a broadcast five-second against person a who violates that law. and did not broadcast either her name or her granted summary judg- The district court address, no intrusion into seclusion ment on this cause of action to ABC and claim lies as a matter of law. 2511(2)(d): pursuant Radziwill to chapter It shall not be unlawful under this B person a acting for under color of law wire, oral, respect With audiotaping, intercept to the or electronic com- undisputed material facts also do not person party demon munication where such is a sufficiently strate a pri offensive invasion of the communication or where one of the vacy court, for an intrusion claim to lie. This to the given communication has presented specific "high-powered Deteresa has no evidence to seen with a lens.” support only her contention that she could such'interception unless facts material the transaction arises under prior consent certain circumstances.” Id. 60 intercepted for the communication is such Examples buyer, at 543-44. are “seller and any or tor- committing criminal purpose of prospective employee, employer and doctor or in violation of the Constitution tious act patient, parties entering any into kind any and States or of State. laws of United (citation agreement.” of contractual Id. 2511(2)(d). do not 18 U.S.C. dispute that Radziwill was Thus, audiotaped. which he The district court concluded that ABC was only if the conversation “for he recorded summary judgment entitled to on Deteresa’s any tor- committing criminal or purpose of presented claim because she no evi- fraud violate section 2511. De- tious act” could he req- that she and Radziwill shared the dence presented no evidence that teresa has relationship uisite for Radziwill to have a purpose.4 was Radziwill’s duty taping to disclose that he was her. We presented agree. Deteresa has no evidence agree thus with the district court We she Radziwill such rela- shared judgment and Radziwill are entitled to ABC tionship. matter of law on Deteresa’s federal as a eavesdropping cause of action. Deteresa further contends that Radziwill duty taping to disclose that he was her
V prohibits because federal and state law unau- of action al taping Deteresa’s fourth cause of confidential communica- thorized courts, however, committed leges that ABC and Radziwill have re- tions. California LiMandri, conspiracy jected to commit fraud fraud and this basis for fraud. In for failing example, that Radziwill was audio- to disclose the Court of refused to rec- videotaping taping ognize her. a fraud action failure disclose wrongful to commit a act: the intention California, essence, theory, in is that LiMandri’s Jud- in which are four circumstances [t]here duty kins owed him a to disclose his inten- concealment consti- nondisclosure or Al- tion to commit an intentional tort. (1) when the defen- tute actionable fraud: inferentially, everyone duty has a though fiduciary relationship with the is in a dant committing intentionally to refrain (2) plaintiff; had ex- when defendant another, it against tortious conduct does knowledge of material facts not clusive who intends to commit not follow that one (3) plaintiff; known to the when the defen- duty owes a to disclose that inten- a tort actively fact from dant conceals material intended victim. The tion to his plaintiff; when the defendant duty of the intent to general is not to warn sup- partial representations makes but also acts, but to refrain from wrongful commit *8 presses some material facts. no committing them. are aware of We Judkins, Cal.App.4th LiMandri v. imposition authority supporting the of ad- (1997) (internal quota- Cal.Rptr.2d liability intentional tortfea- on an ditional omitted). first tion marks and citation tor- failing to disclose his or her sor for fiduciary requires a relation- circumstance committing a tort. tious intent before “presupposes ship; each of the other three (internal quotation at Id. 60 relationship of some other be- the existence marks and citation plaintiff in which a tween the and defendant Thus, audiotaping videotap- if the duty arise.” Id. rela- even to disclose can Such principles or a wrongful under tort tionships by ing be- were “are created transactions statute, failing for to dis- duty ABC is not liable parties from which a to disclose tween violating purpose Cal.Penal the of "Radziwill and ABC versation for 4. Deteresa contends that invading purpose of her by taping committing Code for the were the aforesaid the her, defrauding privacy, purpose argument begs for the This the crimes torts.” committing summary purpose unfair business question. claim to survive For this any practices. devoid of such The record is judgment, had to come forward with Deteresa taped the con- evidence. evidence to show Radziwill agree I wrongful close its intention to commit those from Part II because do not with the properly majority’s interpretation grant- acts. The district court thus of the term “confi- application communication” or its summary judgment to ABC and Radziwill dential ed interpretation to the facts of this case. on the fraud cause of action. VI I.
Finally, Deteresa’s fifth cause of ac
inquiry
meaning
A court’s
of a
into
alleges
tion
and Radziwill commit
ABC
controlled,
course,
statutory
by
term is
practices
unfair business
under Cal. Busi
ted
meaning
enacting legislature
that the
intend-
seq.
§ 17000 et
ness and Professions Code
notes,
give
majority
ed to
that term. As the
the best indicator of that intent is the actual
prove at
argues
that she would
language approved by
legislators.
those
do
trial that this case “is not an isolated inci-
however,
agree,
interpretation
that the
dent,
company
engaged
in a massive
“confidential communication” embraced
scale
criminal and tortious conduct.” To
majority
meaning
is the
that the Califor-
however,
summary judgment,
withstand
Legislature (“Legislature”)
nia State
intend-
designate “specific
showing
facts
give
it
ed to
term when
enacted the
genuine
that there is a
issue for trial”
Privacy
(“Privacy
California Invasion of
Act
affidavits,
“depositions,
own
an-
Act”),
§§
Cal.Penal Code
630-37.6.
interrogatories,
swers to
and admissions on
56;
Corp.
file.” Fed.R.Civ.P.
Celotex
v. Ca-
matter,
As an initial
I am not convinced
trett,
317, 324,
U.S.
S.Ct.
Privacy
exhaustively
Act
defines the
VII carried on may reasonably circumstances as indicate reasons, foregoing For the district any party to the communication desires properly granted summary judgment court thereto, it to be confined to the but as to Deteresa’s claims for unlawful eaves- ....”) added). (emphasis ap- excludes This dropping in violation of the California Penal proach describing a number of limited cate- — Code, privacy, tortious invasion of violation of gories of circumstances where communica- statute, fraud, eavesdropping the federal presumptively tions are confidential or non- practices. unfair business open question eonfidential —leaves AFFIRMED. categories whether other of relevant circum- Treating stances exist. the first clause WHALEY, Judge, concurring District *9 632(c) §of as an exhaustive definition of part part: dissenting in “confidential communication” closes the door III, IV, V, in Legislature open concur Parts and VI of the that the left for the further majority’s opinion. I respectfully development dissent of this definition.1 times, majority rely 1. At California’s courts have also de- that these courts and the on the 632(c) "defining” "expressio § scribed the term "confi- well-known maxim unius est /inclusio communication,” alterius,” though they application narrowing dential have not exclusio of this See, 632(c) explained interpretive inappropriate § their basis for this conclusion. device to is Sortino, 241, e.g., O’Laskey Cal.App.3d given v. 224 273 the broad statement of remedial intent 674, (1990). Cal.Rptr. possible expressed Privacy 677 While it is Act. See Cal.Penal
469 majority’s agree O’Laskey with the Neither the nor the I also do not Frio stan- which, any, sufficiently prediction as to of the Califor- dards are faithful to the text of 632(e) interpreta- Appeal’s differing adoption to warrant their nia Court of as a defin- interpretation communication” the itive tions of “confidential “confidential communi- adopt. of California would cation.” The Frio standard’s Court deficiencies are issue, ably addressing though, majority opinion. this it is detailed in the Before The problem positions O’Laskey outline the that the with the worthwhile to standard is that subject question. very has taken on this it is to the same faults. As discussed, already O’Laskey standard point, Appeal’s starting As a the Court example elevates an of a confidential commu- agree decisions the determination of definition, only nication to the status of whether or not a communication is confiden being difference' with Frio that a different expecta tial is controlled example Additionally, is favored. like the subjective parties, tions of the not their as standard, O’Laskey Frio standard ren- Sortino, sumptions. O’Laskey 224 v. Cal. portion statutory ders a critical text (1990). 241, 674, Cal.Rptr. App.3d surplusage. Specifically, O’Laskey ignores supported This conclusion is the text of Legislature’s decision to focus on wheth- 632(c) the statute. Cal.Penal Code See par- er the circumstances indicate one of the (“The term ‘confidential communication’ in ties “desires” that the communication not be any communication carried on in cir cludes Instead, divulged. O’Laskey reads into the may reasonably indicate cumstances as requirement statute a that it be reasonable ....”) added). (emphasis party “expect” for the that the communi- Beyond point, agreement breaks down divulged. cation would not be reported diverge and the decisions as what subtle transfor- standard’s reasonably expect. Two of mation of the text of works a sub- approaches these have been identified change scope Privacy stantial 1) majority: party reasonably whether the protection Act’s of California citizens from expected that the communication would not recording the secret of their conversations. 677; divulged, O’Laskey, Cal.Rptr. at importantly, Most this shift transfers control 2) and, party reasonably expect whether the confidentiality over the of the communication on, listening ed no one was over speaker from the to the listener or solicitor conversation, hearing, recording Frio example, of the communication. For under Court, 1480, Superior Cal.App.3d O’Laskey approach, reporter for a tab- third, 819, Cal.Rptr. A additional breaking'promises loid notorious for not to strain is also discernible these decisions: divulge have free rein to information would reasonably whether the “circumstances ... newsworthy secretly tape conversations be- any party indicate that to the communication expect cause it would be unreasonable to desires be confined to [the communication] reporter divulge not to those statements. parties, ... such that the circumstances, however, § 632’s these same may reasonably expect action should suggests text cause of the communication be recorded.” Deet express exist because the statement of Angus, Cal.App.3d er v. 224 Cal. “reasonably non-divulgence would desire (1986) (citing Rptr. Warden v. indicate” that desire. Kahn, Cal.App.3d (1979)) added). why the (emphasis also Frid There are a number of reasons See place Legislature might control Epstein, Cal.App.4th dle v. Cal. decide confidentiality in the hands of the Rptr.2d (focusing 90-91 on wheth over speaker rather than the listener or solicitor er evidence indicated desired confi dentiality). of the communication. One is the distinction *10 106, 112, (Privacy remedy § 914 Act to 13 Cal.4th Code is intended personal (1996) inappli- "a free (expressio serious threat to the exercise of P.2d 184 unius maxim "protect right privacy intent). liberties" and the of of the contrary legislative to cable where Reed, state.”).
people People v. of this See also impli- public policy given recording that privacy interests that are increased between the repetition presumably accuracy of a commu- enhance the of cated secondhand would opposed surreptitious record- public. nication as the As information disseminated to Clark, See, e.g., Ribas v. ing monitoring. Supreme of has re- the Court California Cal.Rptr. marked, however, Cal.3d (in bank) (Privacy Act cre- P.2d 637 language that to the extent the broad private the risk that ates distinction between purposes Privacy may Act of the encom- listener, betrayed by the comments will be pass people conduct some believe privacy that infringement and the on attends proscribed, remedy not their is should taping). of their secret As the Court Legislature a statute to ask the to draft explained: has they palatable. more find [i.e., In the former situation secondhand Ribas, Cal.Rptr. n. at 147 696 P.2d repetition] speaker retains control over 637. of his audience. the extent immediate reasons, I if For these believe that may though republish Even audience were to inter- words, secondhand, California his it will be done after 632(e) exhaustively § fact, pret defining “confi- probably entirety, its communication,” depend credibility adopt it would impact will on the dential fidelity monitoring interpretation greater the teller. Where electronic is has involved, however, speaker deprived O’Laskey § text of than the standard. view, right my inquiry of the the extent of his own In the focus of our should control In expec- firsthand dissemination.... this re- be whether Deteresa had a reasonable gard participant monitoring ... den[ies] tation that Radziwill knew she did not want speaker important aspect of a most divulged, her statements not whether she communication, privacy right to con- expectation had reasonable he would actu- trol the extent of first instance dissemina- ally keep her confidence.
tion of his statements. (cited Warden, Cal.Rptr. at 476 II. Ribas, approval Cal.Rptr. at Even if the standard were the 637). P.2d case, proper approach apply in this O’Laskey approach, applied as it is genuine issue for trial. The would remain here, “important aspect priva- reduces this agree California courts the issue of cy nullity of communication” to a when one of whether a communication is confidential is reporter. to a communication is a normally question of fact that should be left The result is a de facto rule individuals Warden, to the fact at finder. reporters presumptively who talk to consent 477-78. Because this issue resolved recording of those conversa- the secret summary judgment, the issue of whether De- circumstances, tions.2 some such as the proven teresa has that she meets the O’Las- reporter example, presumption is tabloid this Instead, key standard is not before us. our difficult, effectively irrebuttable. It is facts, task is to determine whether the taken impossible, this with the to reconcile result Deteresa, light most favorable to are Legislature’s clearly expressed intent give sufficient to rise to an inference that she “protect privacy people right of the expectation that Radziwill this state.” Cal.Penal Code 630. See also would not disseminate her statements. (“The Warden, Cal.Rptr. at 474 dominant Presumably, inquiry employ objective pro- this [Privacy of the ... is to Act] state.”) “totality approach familiar of circumstances” people tect the (internal attempt found in other areas of the law that quotation Creation of might such a be as a matter of to determine an individual’s reasonable ex- rule sound 632(c). may proper ... Code. It be that such a rule would be recorded.” Cal.Penal exclusion, however, 632(c)'s. appear This does not to be "circumstance[s] under exclusion of majority may which the to the communication the basis for the decisions of the reasonably expect that the communication district court. *11 Nordling, importance privacy, of individual includ- United States pectations, cf. Cir.1986). (9th The ma ing general relating a conversation 804 F.2d circumstances jority’s analysis looks to the privacy experienced invasions Radzi- conver surrounding the Deteresa-Radziwill will’s famous relatives. While these factors dispositive weight appears give sation but ease, compelling do not amount to a himself to identified to the fact that Radziwill context in conversational which Deteresa a employee an of ABC. While Deteresa as Radziwill, made her comments to in viewed certainly more difficult case plaintiff has a her, light supports most favorable to confidant is a when her under position reasonably expected that she those media, impossi it is not member of the news comments would not be disseminated. expectation of con prove a reasonable ble to The location of the conversation is also reporter.3 fidentiality in a conversation with relevant. Here the conversation occurred on family Certainly, correspondents’ mem news doorstep unexpect- Deteresa’s after she was expectation as to bers can have such an edly matters, certainly called the door. There is accepted con intimate and it is an distinction between in the news media that the contents the comments that one vention may reporter “off the record” or to a of a communication made make forum as “deep background” divulged cannot be opposed on to those that are on made source. That gained unless from another Moreover, threshold one’s home. the final said, statements the fact that Deteresa’s expressly recognizes clause of expressly not conditioned non-dis were likely whether a statement is to be overheard semination, she assumed and the fact that is a relevant consideration the determina- reporter, work to her disad was a Radziwill tion of whether the statement is confidential. vantage. majority correctly While the concludes in supra Part III that Deteresa did not have a obviously is nature of the conversation notes, expectation majority privacy De- as to her important. As the also readily in- previously image unknown because she could be seen teresa’s discussion top street, about one of the news stories support formation not record does certainly reason- day against cuts a conclusion that her comments could be expectation an those comments ableness of public place. overheard from a Because of divulged. There was more to would not be greater expectation privacy in- statements, than how- the conversation these home, heres from the and the fact that the conversation, for ever. At the outset of the record does not establish that Deteresa’s that he was example, Radziwill told Deteresa street, comments could be heard from the approaching be her to see she would will- weighs factor favor. Deteresa’s program, ing appear on his television Additionally, undisputed it is that Detere- interview her at that time. that he wanted secretly sa’s comments were recorded from a con- refused this invitation and Deteresa very opened her door. moment she principally on versation ensued that focused Thus, interest that California rec- could overcome whether Radziwill and ABC ognizes inhering surreptitious re- Deteresa contends that she was this refusal. infringed cording of statements was before into lulled Radziwill’s “casual demeanor” given opportunity Deteresa was to deter- believing subsequent that her comments whether her comments were on the record,” mine flight “off the em- about her were pre- record. Unless 632 countenances a attempt phasizing that Radziwill did not sumption all made from her, communications was not attended a visible interview device, doorstep representative to a media one’s recording crew or and that he camera recorded, secretly taping Radziwill’s conversation. did not take notes of their that Deteresa’s statements comments violated Additionally, points to the fact until 632 at least the circumstances indicat- their conversation included discussion producer, reporter. Although a re- was a Radziwill was a porter, the record indicates Deteresa assumed *12 reasonably expected her comments she ed reported. BROWN, single
would be Catherine Pierce a woman, Plaintiff-Appellant, com- Finally, facts of do not O’Laskey, In majority’s conclusion. pel the taped telephone con- private investigator in- plaintiff which the COMPANY;
versation with the MORTGAGE INVESTORS as a television vestigator identified himself Management Company; Stephen Seattle plaintiff that producer told the show Anderson; Anderson; Pug H. Jane Doe $100,000 prize in a eligible to win a Group; et Investment Mort Sound CLS drawing if he answered certain televised gage Inc.; Inc., Thomas Harsh d/b/a In Cal.Rptr. at 675. re- questions. 273 Plan, Sharing Thomas Harsh Profit De plaintiff “eagerly” answered the sponse, the fendants-Appellees. investigator’s questions. Id. 273 at No. 96-35477. contrast, appear In Deteresa refused to 678. responded show and to his on Radziwill’s Appeals, United States Court general discus- questions substantive after Ninth Circuit. privacy. for her These sion of her concerns in- sufficient to allow for an distinctions are Argued and Submitted Feb. 1997. reasonably expected ference that Deteresa disseminated. her comments would be July Decided 1997. sum, par- though Deteresa’s case is not ticularly strong, sufficient evidence there is juror permit a reasonable record of her conversa-
infer the circumstances that she desired and rea-
tion with Radziwill expected
sonably her communications would disseminated.
III. Privacy purpose of Act
The California’s legality sharply
was to restrict of wire- surreptitious
tapping, eavesdropping, and re- thereby remedying “a serious threat
cording, personal liberties” and
to the free exercise peo-
“protectfing] right
ple of this state.” Cal.Penal Code majority’s interpretation application by allowing intent 632 frustrates approach persons at representatives to
media uninvited, homes, secretly record
their attempting
their without to se- statements I permission.
cure Because believe
genuine ques- issue remains for trial on the permissible
tion of whether such conduct was case, respectfully
in this dissent.