Taus v. Loftus

Feb. S133805. [No. 2007.] TAUS, v.

NICOLE Plaintiff and Respondent, al., et Defendants and ELIZABETH LOFTUS Appellants.

Counsel Tremaine, Burke, Davis Wright Wilcox; Thomas R. Rochelle L. Christopher Patti; Selman-Breitman, Struck, Thornton; Jeane A. Rutan & Gregg Tucker and Duke F. Loftus, Defendants and Wahlquist Elizabeth Appellants Tavris, Melvin Guyer, Carol the Committee for the Scientific Investigation of Claims of the (CSICOP), Paranormal and Center for Skeptical Inquirer Inquiry West.

John P. Hollinrake and Demosthenes Lorandos for Defendant and Appellant Shapiro Investigations. Barden; Howe,

R. Chris Bishop, Barry, & and Mark C. Haney Ryder Raskoff for National Committee of Academic Scientists for as Liberty Amicus Curiae on behalf of Defendants and Appellants.

Thomas A. Pavlinic and Kristine M. Burk for The False Memory Syndrome Foundation as Amicus Curiae on behalf of Defendants and Appellants. Schulz,

Levine Sullivan Berlin, Koch & E. James Seth Grossberg, D. Jeanette Bead; Fuson, Jr.; Melendez Kahane, Tarlow; Harold W. Michael Barbara Cohn & Scheer; Glasser, Jr.; W. Peter Thomas Marks, J. M. Charles Goldberg; Kevin Giles; W. Ewert; M. Barbara Newton, M. David Bongiomo; Anthony James W. Goller; W. Wall; Donnellan, Karlene Findikyan; Kristina E. Jonathan Weiner, Rush; Ballow, E. James Bums; Susan & Tonda King J. Stephen McCraw; Freeman, & Bloom; Rein Lichtman, Wiley David E. George Craig Leslie; Baker & P. Gregg A. Kirby; Lucy Dalgish, Kathleen A. Fielding, Brown; , and Robin Hostetler, Bruce D. Robert D. Lystad, Bruce W. Sanford Media, Inc., Press, Inc., American The American Bierstedt for The Copley Editors, News, First Amendment California Bloomberg Society Newspaper Association, Coalition, CBS Broadcasting, California Publishers Newspaper Communications, Inc., Radio, Inc., Freedom CBS The E.W. Scripps Company, Inc., Co., Inc., Gannett County Register, business as The doing Orange LLC, The McClatchy Los Times Communications Angeles Hearst Corporation, Universal, Inc., Association, The New NBC National Company, Newspaper Association, The Directors Times Radio-Television News York Company, Press, Committee of Professional Society for Freedom of the Reporters behalf Defendants and and Inc. as Amici Curiae on Journalists Time Appellants. Hubbard, Moore, & and Julian J. Hubbard Ebert & Hubbard Ebert

McCloskey, for Plaintiff and Respondent. &

A. Steven Frankel for The Council on Child Abuse Interpersonal Leadership as on behalf of Plaintiff and Violence Amicus Curiae Respondent.

Opinion Taus, action, was the unnamed

GEORGE, C. J. in this Nicole Plaintiff article describing of a “case set forth in a subject study” prominent scholarly (The of childhood abuse. memory her of a recovery long-repressed apparent and Doe.”) “Jane Defendants are the authors article referred to that, in the basic premise of two articles questioning publishers subsequent article, family disclosed various of plaintiff’s advanced the initial aspects (Like her the initial identity. life but did not disclose background personal article, Doe.”) as “Jane defendants’ articles referred filed the the later articles were present after

Shortly published, defendants, in investigating, defendants’ activities challenging action against articles and investigation. thereafter their discussing publicly publishing, had invaded plaintiff’s asserted that defendants improperly The complaint conduct by investigating plaintiff’s and committed other tortious privacy concerning disclosing pri- background discovering vate life without her consent.

690

Defendants motions to strike the responded by filing special complaint Proc., (Code 425.16),1 California’s anti-SLAPP statute Civ. pursuant § that the them for asserting complaint sought liability actions impose upon that were undertaken in furtherance of their constitutional of free right The trial court denied the in speech. motions that the large concluding part, bulk of claims should be forward. plaintiff’s permitted go On appeal, Court of held that most claims set forth in the should Appeal complaint statute, be dismissed under the anti-SLAPP but also concluded that the suit could with to four proceed regard defendants’ conduct that were aspects in the challenged complaint. decision, the Court of

Following defendants review Appeal’s only sought in this court. The for review contended that the Court of petition although claims, was correct in the bulk of Appeal dismissing plaintiff’s appellate court had erred in of the action to forward. permitting any go We aspect review to consider determined granted whether the Court of correctly Appeal suit could as to four proceed challenged by points defendants. hereafter,

As we conclude that the explained Court of erred with Appeal claims, to three of determined those but that it respect correctly dismissal is not warranted at this to one of the juncture regard claims advanced by we shall reverse in and affirm in plaintiff. Accordingly, part part judgment rendered the Court of Appeal.

I The relevant are facts this case set forth in some detail in the Court of matter, in this and because neither Appeal’s opinion has taken issue party facts, with that court’s statement of we shall Court adopt portion with minor Appeal’s opinion, supplementation stylistic changes. A. Background—Published Articles between these arises out of the of three dispute parties publication

articles two scientific between appeared journals May 1997 2002. August 1 Cause, Equilon Enterprises explained As v. Consumer Inc. Cal.4th [124 685], Cal.Rptr.2d acronym “strategic against public P.3d SLAPP is an lawsuit participation.” Finding disturbing brought that there had been “a primarily increase lawsuits rights to chill the speech petition valid exercise of the constitutional of freedom of for the Proc., 425.16, (Code (a)), grievances” Legislature

redress of Civ. subd. in 1992 enacted § 425.16, (b)-(i). procedure the motion-to-strike now embodied in section All subdivisions statutory further references are to the Code of Civil Procedure unless otherwise indicated.

691 Article 1. The 1997 Child Maltreatment Maltreatment, a scientific journal published The 1997 issue of Child May Children, an the Abuse of contains the American Professional on by Society Olafson,2 entitled Videotaped and Erna authored David Corwin essay, Abuse: Memory Unrecallable Child Sexual Discovery Reportedly 11 Years With a Childhood Interview (2 Child Comparison Videotaped Before article]). Maltreatment 91 the Child Maltreatment [hereafter The Child Maltreatment article contains the of its following summary behav- contents: “This article verbatim and history, transcripts, presents ioral a child’s abuse to Dr. David Corwin observations of disclosure sexual and the return memory 1984 of that unrecallable spontaneous reportedly individual, adult, an interview the same now a and during young between Dr. Corwin 11 later. Both interviews were recorded. The years videotape limitations, and clinical of this case significance, study implications unique are discussed. Five commentaries researchers differing empirical who have reviewed these interviews follow perspectives videotape-recorded article, (Child this article.” Maltreatment

The woman who is the of the Child Maltreatment article was young subject (hereafter referred to the article as “Jane Doe” sometimes throughout just “Jane”), and all the names of to her were persons places relating story Corwin, with the changed who conducted exception identity article, interviews. Corwin became involved in case According Jane’s after 1984 Jane’s father accused her mother of physically sexually her. The abusing were made in the context of a allegations custody dispute, and Corwin was the court to conduct an evaluation. appointed by

The Child Maltreatment article contains from three interviews excerpts conducted Corwin in when each Jane was six years age. During interview, Jane told Corwin that her mother had rubbed her inside finger Jane’s while her a bath. vagina giving that are specific excerpts repeated in the article include Jane that her mother first had done this to her reporting three, hurt, when she was that these actions that her mother had warned she would do to Jane if Jane told her father what her mother had “something” interview, done. the third Jane maintained that During consistently nobody told her to these about her mother and that she was not At say things lying. one Corwin whether Jane’s mother had said when point, inquired anything (a published, psychiatrist) At the time the Child Maltreatment article was Corwin were, (a on psychologist) respectively, program Olafson the director and co-director of the University College childhood victimization and the law at the Cincinnati of Medicine. feel her mother asked: “That her there. Jane finger she reported placed on that this had happened and that Jane had no. Jane also said good?,” replied the time she lived with and closer to 99 during more than 20 occasions article, 100-101.) at supra, (Child Maltreatment pp. mother. and are with analysis from the 1984 interviews interspersed excerpts conclusions, (1) Jane and to in that: Corwin’s first drawn testified mother, mother her and Jane’s and abused sexually by

was physically to coerce Jane Jane and abusing attempted accused Jane’s father falsely of the Child Maltreatment the false accusation. The authors into verifying sources in addition article that their article relied upon background reported interviews, the child services and including by protective to the 1984 reports the divorce and and decisions parents’ court files pertaining police, battle, and and other evaluators by therapists. contentious custody reports article, Corwin were consistent with Jane’s statements to the According evaluators. Jane’s reports she made to other prior statements previously “ included her on several ‘striking parts behavior her mother inappropriate stove, her hurting feet on a hot and invading of her her body, burning ” article, at supra, (Child Maltreatment and anus with her hands.’ genitals 95.) p. interview of contains a of an

The Child Maltreatment article also transcript 15, 1995, Jane 17 years October when was Jane conducted Corwin on article, after Corwin arranged interview 1995 age. According their consent to continue to use Jane and her father to obtain contacted education,” learned that interviews for “professional 1984 videotaped of those earlier the events that were subject Jane could not remember Maltreatment (Child interviews and wanted to view 1984 videotapes. article, 98.) supra, p. Corwin, who to the interview with foster mother her

Jane’s accompanied (A interviews. of the 1984 show the two of them the videotapes agreed interview.) the outset of the At during also was present local therapist stated that she Jane videotapes, interview and before 1984 viewing 1995 inter- made those during she had allegations did remember statements true that I’m “[ijt’s having of if what I said was but that the memory views article, Corwin asked (Child Maltreatment with.” problem of time concerning recall about that period Jane to share what she could have said then. Jane described and the she things may interviews she have and a sweatshirt was interviewed room where she She worn, she made. allegations to recount some of and began stove her feet on a burning her abusing recalled mother accusing her feet were but stated she could not remember whether that was in fact how with her burned. Jane told Corwin that she had been contact recently mother, When Corwin focused the who denied all the of abuse. allegations abuse, the discussion on sexual occurred: following “DC[3] Do remember about the concerns about Okay. you anything pos sible sexual abuse? accusation, mean, closure)

“JD: No. I I remember that was (Eye part but I don’t wait a remember closes anything—(inhales audibly eyes) minute, I do. yeah,

“DC: What do remember? you eyes eyes) holds (Pauses) (.

“JD: Oh . . gosh, really, that’s Close[s] my (Looks mother) (starts weird. at foster I accused her of really taking pictures shoulder) foster mother hand on Jane’s of me and brother cry my puts them and I accused her of—when she was me or selling bathing whatever, me, and that’s— hurting me,

“DC: As that to remember said you’re saying you things those having or you remember those having things? experienced

“JD: I remember about the I remember it saying pictures, happening, she hurt me.

“DC: Hurt How? you, where?

“JD: She hurt me. She— There’s tissues to

“Therapist: your right. “JD: You see. I don’t know if it was an intentional hurt—she was bathing me, instance, me, and I remember one and she hurt she her only fingers put have, too far where she shouldn’t and she hurt me. But I don’t know if it was intentional, if it accidental. just

“DC: Can be more because I—? you specific I “JD: know what was said on the On the it was said that she tape. tape put And she hurt fingers my me. vagina. 3 parenthetical “DC” refers to David Corwin. “JD" refers to comments were Jane Doe. by the added authors of the Child Maltreatment article. recall or— Is that what you “DC: Okay. it, I recall it happening. recall. I recall saying

“JD: That’s what I recall it happening? “DC: You remembered that since the first time I’ve I recall. I didn’t—that’s

“JD: old, Maltreatment (Child I remember.” I but that when was years saying article, 105-106.) pp. article, thereafter showed Corwin to the Child Maltreatment

According interviews, hour a two and one-half took of the 1984 Jane videotapes interview. break, During part videotaped recommenced the 1995 and then interview, viewing about feelings to describe her Corwin asked Jane that her reinforced her belief that the tapes Jane responded the videotapes. view, on the would she saw girl tapes had abused her. In her mother that she no longer relief accusations. Jane also expressed have made up died, father, had lied who had recently that her to entertain the possibility her mother. to her about interview, could use her that Corwin agreed Jane

At the end of mean, “Yeah, I think it’s—I She stated: for educational purposes. interviews life, life, have other kids who devote my helping to give my I’m prepared what I’ve gone well not necessarily gone through, what I’ve through gone becoming . by traumatic . . experiences, that have gone through through, but, and I no means want I decide whichever or psychiatrist, psychologist article, 109.) at (Child supra, p. Maltreatment in your way.” to stand article, reconciled the authors the Child Maltreatment In the final pages and the recalled 1995 memory between Jane’s inconsistencies possible recollection, core made in and concluded accusations she “[t]he article, at supra, Maltreatment then, (Child true to her earlier disclosures.” that, of abuse Jane’s assuming memory 110.) authors also suggested The p. interview, Corwin’s to her 1995 had been unavailable prior actually the authors posed recall. Finally, trigger have helped presence in the future. and address and issues to explore questions Olafson, issue of May 1997 Corwin and to the article by In addition shorter articles prominent five separate Maltreatment contained Child the Corwin field who had reviewed health in the mental professionals article.4 Each in that interviews described and the article videotaped Olafson 4 Recovery Ekman, and the Expressive Behavior (1) are: The five commentaries 1997) 2 Maltreat Videotapes Jane Doe (May Child Memory: on the Comments Traumatic 117; (3) Armstrong, Commentary (May 113; Putnam, 1997) 2 Child Maltreatment ment

695 of these case commentaries the manner in which Corwin uniformly praised the case had conducted his interviews with Jane Doe and described generally study “unique,” “extraordinarily important,” providing “important Putnam, Commentary, into the nature of memories. insights” missing (E.g., Further, commentators, 117.) 2 Child Maltreatment a number of the supra, be stated that additional believed should discussing questions they explored, it be would useful to know “what has to Jane Has she happened subsequently. recalled other unavailable traumatic memories how her feet (e.g., previously burned)? were How has this affected her with her mother? ... It relationship would be to see whether this has interesting substantial experience produced Commentary, life, supra, (Putnam, in her for better or changes worse.” Behavior and the Expressive 120; Ekman, Child Maltreatment at see also p. Doe, Recovery a Traumatic Comments on the Memory: Videotapes Jane 2 Child Maltreatment at remain unanswered p. [“Many questions time and will be revealed over can only as we learn how her adult personality takes shape”].)

2. The 2002 Skeptical Article Inquirer 2002 and May/June 2002 issues of the July/August Skeptical Inquirer, magazine Committee for the Scientific published by Investigation article, (CSICOP), Claims of the Paranormal included a written by two-part ,5 entitled Who Abused Jane defendants Elizabeth Loftus and Melvin Guyer Doe? The Case Single History Hazards of (26 Skeptical Inquirer [hereafter, article].) The stated of the Skeptical Inquirer premise Skeptical studies, scientists, article is that case Inquirer useful to are “bounded although and should be used perceptions storyteller” interpretations (Id. tested, “to generate to be not as answers to hypotheses questions.” 25, 26.) To illustrate their pp. Loftus and “a case point, Guyer provide study (Id. of a case tale.” study—a The case cautionary study they scrutinize is Corwin and Olafson’s Child Maltreatment article. article,

According researchers and Skeptical Inquirer psychological clinicians disagree as to whether the human mind of memories represses traumatic in such a that these memories can be experiences way accurately recovered later tools such as and The article years through therapy hypnosis. 121; Exploring the Lines 1997) Jane Doe’s Picture Pain (May 2 Child Maltreatment of of Neisser, (4) Changing Jane Doe’s Memories: the Present 1997) Past to Serve (May 2 123; Schooler, Memory Discovery (May 1997) (5) on a Child Maltreatment 2 Child Reflections Maltreatment 126. 5 Skeptical Inquirer At the time the article was a published, psychology professor Loftus adjunct University and professor Washington Guyer psychology of law at the of was a professor University Michigan at the of Medical School. that the also states Child Maltreatment article has been offered and accepted as that traumatic memories can be recovered. eventually reliably proof article summarizes the content the Child

The Skeptical Inquirer article summary Maltreatment and offers the reactions following study who had read about the Jane Doe case: “Corwin’s case professionals it; indeed, Leading was vivid scientists were compelling. persuaded by moved it. Few considered other emotionally by any possible explanations that behavior at six at seventeen. Few were Jane had skeptical really Jane’s six, abused her before retrieved were age been mother her memories accurate, or that accounted what her mother forgetting ‘repression’ article, had done to her. But we were.” (Skeptical supposedly Inquirer [][] at Court of italics added supra, p. Appeal.) The article related that the Jane’s allegations against Skeptical Inquirer and were grew custody mother in 1984 out of contentious battle five-year at a time were looking made when unaware interviewers many experts their for evidence of sexual abuse could children and taint easily manipulate Further, had a memories. the article states that Corwin “vested interest” others initial abuse was and that finding that his of sexual accurate persuading had that abuse “some Jane repression-like prevented recalling process” Corwin her. before re-interviewed during period (Skeptical Inquirer Therefore, article, 29.) “we set Guyer Loftus and supra, p. explained, investigation out on an to learn more about the case. Our odyssey produced own much valuable information that should assist scholars their making so, abused, (Ibid.) decisions about whether Jane was and if whom.” clues article describes how Loftus found Skeptical Inquirer Guyer investigation to fuel their the fact Corwin had notwithstanding disguised article, Corwin the case. For one thing, (Skeptical Inquirer his interviews with Jane Doe at number of videotapes profes showed and, interviews, Jane’s at some Corwin used meetings during sional point name and where she some of her childhood. spent Using real first a city article, from the Child Maltreatment the authors other clues article searched databases and found legal of the Skeptical Inquirer case Jane’s father relating allegations court published appellate orders. re (See failed to with visitation In William T. comply 420].) additional factual That case Cal.Rptr. provided Cal.App.3d [218 Further, about Jane the disclosure the father’s first family. details Doe’s and, for the identity name and last initial led to a successful search father’s authors, of the “from there we uncovered full according history article, supra, allegations.” Inquirer the abuse custody dispute (Skeptical 29.) at p.

The article includes its authors’ of an accurate version Skeptical Inquirer of the facts relevant to Jane summary Doe’s of abuse. This article allegations does disclose Jane’s or the real names of connected to identity persons does, however, her case. It details about Jane’s that were not history provide article, disclosed in the Child Maltreatment unfavorable informa- including tion about Jane’s father and of the details stepmother. Many concerning Jane’s that are disclosed in the history article were Skeptical Inquirer obtained through interviews conducted or on behalf of the authors latter article.

Jane’s mother was interviewed. She continued biological deny and, authors, of abuse defendant allegations was for us to according “eager visit” and “told us a few of course from her things, that never perspective, of Corwin’s accounts appeared any of this case.” (Skeptical Inquirer article, supra, at 30.) p. article summarizes Skeptical Inquirer mother’s story also that the maternal best friend reports grandmother’s and Jane’s older brother concur that Jane never was abused her mother. that, The article also discloses after Corwin reviewed with 17-year-old Jane abuse, allegations Jane severed all contact her mother. mother, Jane’s foster article, also interviewed for the Skeptical Inquirer allegedly described how Jane was distressed” when came “extremely she article, live with her. (Skeptical supra, 31.) at father Inquirer Jane’s had p. her; had a heart attack and could not care for (who Jane’s stepmother divorced Jane’s father long was out of the ago) Jane wanted to picture, (Ibid.) “put ‘puzzle her pieces’ past together.” Jane’s foster mother Jane contact her helped mother but biological the renewed reported (Ibid.) after relationship destroyed Corwin “entered the Jane’s picture.” foster mother opined viewing convinced Jane the abuse had tapes occurred, and that the interview with Corwin dramatically Jane: changed “She went into herself. She became She started depressed. behaving (Ibid.) self-destructive and soon left ways, FosterMom’s home.” According article, Jane’s foster mother wondered whether Jane had rejected because “of the older woman’s strict rules out late and against staying misbehavior, or because she was to run from her own trying away misery.” (Id. 32.) Jane’s foster p. mother also wondered whether viewing tapes was a mistake. article,

Jane’s who also was stepmother, interviewed for the allegedly is, “volunteered that the Jane’s father and way they Jane stepmother] got [that ” article, from Mom was ‘the sexual away angle.’ (Skeptical Inquirer interview, During stepmother displayed continuing mother, serious toward animosity Jane’s her of such accusing things being 698 “ ” (Ibid.) out.” and a ‘leech’ who had her hand “prostitute” “always article, how she Jane’s Jane’s described and

According stepmother “ ” case for by, father ‘documented’ their Jane’s mother against example, the foot Jane to two to have her feet examined to bringing support hospitals that, (Ibid.) when Jane was allegation. The also burning stepmother reported the of four nine Jane to her about the sexual ages between and years, spoke abuse she had endured. The article includes Inquirer personal Skeptical and concerning information Jane’s marital stepmother’s history legal prob- relevant lems. The authors of the article maintained this information was Jane’s because Corwin used mother comparable regarding her credibility. discredit article, they

In this Loftus and offer several reasons Guyer why defendants mother, Doe her sexually doubt Jane was abused physically inconsistent; the (1) (2) were Jane’s abuse including: six-year-old reports mother Jane’s father was to that Jane’s in terms credibility superior behavior; (3) one history, of marital criminal and other at least stability, thorough who conducted doubted expert contemporaneous investigation had any abuse occurred.

The article also whether Jane’s Skeptical Inquirer questions 17-year-old was, fact, event alleged memory. an recovered memory prior note, that the evidence that Jane had indicating spoken authors for example, between years about the with her and others allegations stepmother during interviews and the interview claims of massive “undermin[es] article, supra, or dissociation.” (Skeptical Inquirer repression article, Further, that Jane’s can be memory extent according “[t]o recovered, as an there must be some regarded memory, instance of accurate remem- corroboration of the events she objective purports independent article, 37, 38.) The authors suggest ber.” (Skeptical Inquirer pp. (1) not exist: Corwin’s several corroboration does required reasons reliable; (2) is no clinical was neither nor there original objective evaluation feet; evidence to that Jane’s mother burned Jane’s allegation support that, indeed, if Jane’s feet the authors’ own research the conclusion supported burned, have documented hospitals been would been injury services, no Jane taken or child such documen- protective where existed; evidence, (3) there or even reference allegation, tation is no prior recollection that she or the evidence Jane’s supposed reports support of her and had accused mother of taking pornographic pictures her previously brother; on the emotion and details personal captured knowledgeable not just of the 1984 interviews could persuade videotapes if it never had. but Jane herself that the abuse had occurred even scientists The article defendants contains which Skeptical Inquirer postscript and describe resistance to their efforts to “criti- Guyer Loftus “unexpected” evaluate” Corwin’s claim that Jane Doe recovered a cally repressed memory. article, 37, 40.) at supra, Defendants contend (Skeptical Inquirer pp. critics of their the of their work and that even inquiry impeded publication their universities warned them of the material respective publish any “even that which is in the and found they gathered, domain public readily (Ibid.) with access to a modem and search The by anyone Google engine.” authors stated: “We are alarmed on behalf of all members of the academic universities, that our institutions that above all others should be community debate, the to free and academic so championing right speech implacably (Ibid.) it in this instance.” opposed

3. The 2002 Tavris Article article, In addition to the second of the Loftus and part Guyer July/August issue of contained an Skeptical Inquirer accompanying article entitled Cost High Skepticism (26 Carol Tavris Skeptical 41; article, article).6 hereafter the Tavris Inquirer this Tavris that the .posits wielded by (IRB’s) institutional review boards power university stifles scien- tific and inquiry threatens the foundation of the progress, very “skeptical article, (Tavris movement.” supra, 42.) at To illustrate her Tavris p. point, focuses on the authors of the article summarized above: Skeptical Inquirer “The of what story to Elizabeth Loftus and Mel happened when Guyer they itself,” contends, set out to investigate case of Jane Doe is Tavris “a case (Ibid.) study high cost of skepticism.” article, to the Tavris

According authors of the article Skeptical Inquirer decided to examine the Jane Doe case and Corwin’s evidence of a “alleged abuse,” recovered memory of sexual because the “stakes were for their high scholars, teachers, witnesses, work as because the case expert was already being used in court as evidence recovered memories of sexual article, (Tavris abuse childhood are reliable.” supra, 42.) p. According article, Loftus and were Guyer their after encouraged story pursue finding documents record were public inconsistent with Child Maltreatment article.

The Tavris article describes how Loftus and were treated Guyer IRB’s at universities where were The IRB at the they employed. University of Michigan, where was took the Guyer allegedly employed, position initially that its for this was because would not be approval project unnecessary, Guyer writer, lecturer, The article psychologist, identifies as a social and the Tavris co-author introductory psychology of three textbooks. later, research,” “human but then reversed its a month doing subjects position it be repri- when recommended “disapproved” project Guyer Then, later, article, (Tavris several a new manded. months of the IRB that this IRB consider- project exempt chair determined research, it did human and found there was ation because not involve subjects no basis recommending reprimand. article, the Loftus and were

According Guyer encouraged by Tavris Michigan” at and continued their light given Guyer investigation “green an until the of where Loftus was received University Washington, employed, was e-mail from Jane Doe that her violated. being complaining privacy article, 42.) Tavris’s the supra, (Tavris article offered following explana rejected the of should have Jane Doe’s why University Washington tion as out of that David Corwin his “Considering hand: complaint published her life traveling country account of and was around the showing videotapes seventeen, and and no one her of Jane at six was considering making (and Jane herself and violating except hence story public ‘privacy’) Corwin, been as a from a troubled cry should have complaint recognized (Id. woman, 42-43.) and set and vulnerable aside.” young pp.

Instead, Tavris the conducted the of “investigation” by University reports, months, of a lasted more than consisted series of Washington shifting her, Loftus, often secret was fueled against kept charges a outside influences. These influences included memoran- scathing improper IRB who was Michigan’s dum drafted member of of University in an litigation critical of well as the of counsel Guyer, strategies opposing as court in which Loftus was a defense and Corwin was expert out-of-state case Tavris Loftus was of exonerated expert. Ultimately, reports, misconduct,” and of con- of charges University Washington “scholarly the Jane did not human cluded that her Doe case constitute investigation then, however, research. Loftus’s University Even subjects employer, her not to Jane Doe’s mother or to again, instructed contact Washington, the case interview else in without advance anyone approval. whose Tavris Jane Doe “an woman young

The article describes as unhappy article, 43.) It (Tavris been filled conflict and loss.” at p. life has has study Corwin as a man “who his case promoted characterizes publicly be recovered memories should vindication and a how prototype personal (ibid.) while “courage, Loftus as heroes whose and Guyer studied” presenting them to ‘offend’ made integrity” “willing pursuit persistence, (Ibid.) Court of of adopted excerpt Appeal opinion.] truth justice.” [End B. First Amended Complaint 13, 2003, of the a few months after publication Skeptical

On February articles, in this filed the initial complaint pro- and Tavris Inquirer Tavris, Loftus, University ceeding against Guyer, Skeptical Inquirer, Investigations, investigation company Washington, Shapiro for Loftus. In the initial that had some services investigation performed herself as “Lieutenant Junior identified paragraph complaint, Taus, referred to Grade Nicole S. also known as ‘Jane Doe’ publications reveals, the was the first herein.” As far as the record filing complaint on true was disclosed. identity occasion which “Jane Doe’s” publicly including also disclosed other information about plaintiff, complaint personal bom, the names of her she was and the where she year city parents, raised. 6, 2003, defendants, filed a

On March to any prior response (the first amended CSICOP adding complaint, publisher Skeptical Inquirer) (an CSICOP) and the Center for West affiliate of as defendants. The Inquiry first amended for which is complaint, operative complaint purposes sets forth four causes of action. proceeding, present The first cause of action that all defendants were liable to alleged plaintiff for infliction of emotional The asserted that negligent distress. complaint defendants had “misused their and skills as re- knowledge psychologists, [,] searchers and writers and when knew or should exploited they plaintiff have known that had and of abuse so plaintiff background personal history abuse, slander, as to make her and to emotional libel extremely susceptible exploitation.” action, defendants,

The second cause also directed at all sought recovery for invasion of maintained that is not a privacy. complaint public and has a constitutional and to figure statutory right privacy, particularly to her medical records. The and court respect history juvenile complaint both asserted that defendants obtained information about plaintiff private information, including and false and legally representations published statements about that are not truthful. particular, complaint means to obtain informa- that defendants fraudulent alleged employed relatives, their identity tion from including misrepresenting plaintiff’s mother. befriending plaintiff’s biological action, directed at Loftus and the University

The third cause of Loftus was for fraud. The fraud claim Washington, sought recovery against rela- based on that Loftus made allegations misrepresentations her, to obtain information about tives and friends in order rested on Washington allegations claim against University apparently under that the process that the university falsely represented Loftus with the would against university which she filed an ethics complaint be confidential. action, Tavris, cause of directed Loftus against the fourth

Finally, that Loftus and Tavris defamation. The alleged for sought recovery complaint “designed suggest made oral and written statements about plaintiff vulnerable, for her duty and of fitness questionable she was unhappy, to state- solely The claim Tavris related military.” against an officer in the both The claim Loftus was based against ments in the Tavris article. and on in the article Inquirer “public disparaging on statements Skeptical made Loftus after allegedly publication statements about plaintiff” at a Loftus’s remark alleged including professional Skeptical Inquirer, that I cannot that “Jane Doe in destructive behavior engaged conference our Jane is in the Navy representing reveal on advice of my attorney. country.” The Motion to

C. Strike Tavris, 13, 2003, Loftus, Inquirer, defendants Guyer, Skeptical On May CSICOP, West filed a motion pursuant and the Center Inquiry amended com- 425.16 to strike the first anti-SLAPP section provisions The motion in the motion. joined Investigations subsequently plaint; Shapiro Plaintiff of exhibits and declarations. to strike was accompanied by variety strike, 425.16 is the motion to that section maintaining filed an opposition about her are not matters of legitimate public because statements inapplicable that, event, declarations and other materials accompa- concern and in the any the that she would on the demonstrate probability prevail nying opposition the Defendants filed a opposition, merits of each of her claims. reply declarations and exhibits. additional attaching motion, and the accompa- of the opposition, reply,

After consideration exhibits, the the trial court denied the motion to strike declarations and nying and invasion of infliction of emotional distress causes of action for negligent strike the cause of action The trial court the motion to granted privacy. to that cause of action against but denied the motion as fraud Loftus against the cause of the motion to strike of University Washington,7 granted Tavris, as to that claim but denied the motion for defamation against action Loftus. against 7 425.16, to strike under section University Washington of did not file motion Because the regard formally before the trial court with against university were not the causes of action ruling, Washington appealed from the trial court’s University of has to that motion. The in against university is not before us viability action accordingly plaintiff’s of

present proceeding. from those had filed the motion to strike appealed

All defendants that of claims the trial ruling majority plaintiff’s of court’s permitting portions the trial court’s ruling did not from the of Plaintiff appeal portions proceed. the defamation cause of the fraud of action Loftus and against cause striking Tavris, the trial court’s ruling those of accordingly action against portions and are not before us. were not before the Court of Appeal Decision D. Court Appeal’s of strike, on the motion to ruling

In of trial court’s analyzing validity statute, the Court of turned to the terms of the anti-SLAPP initially Appeal 425.16, (b)(1) of that which section and in to subdivision particular provision, act of that “A action from against arising any cause of person provides: free under the in furtherance of the right speech person person’s petition issue United States or California Constitution in connection with a public strike, shall be to a motion to unless the court determines subject special has established that there is a that the will probability on the claim.” the Court of cases establish recognized, As prevail Appeal past strike, that in on a section 425.16 motion to a court should ruling generally “First, the defendant in a the court decides whether engage two-step process: has made a that the cause of action is one threshold showing challenged ... If the court finds such a has been arising activity. showing protected made, it then determines whether the has demonstrated probability Inc., Cause, on the v. claim.” Consumer prevailing (Equilon Enterprises Cal.4th (Equilon).) the first of the whether undertaking determining step analysis—namely, the conduct or claims was defendants rise activity gave or free activity furtherance of defendants’ right petition speech 425.16, connection with a issue—the Court of noted that section public Appeal (e) subdivision defines such written or oral activity including “any statement or made in a or a forum writing place open public public connection an “any issue interest” as well as other conduct public furtherance of the or the exercise constitutional right petition constitutional of free in connection with a issue or an right public speech 425.16, (§ (e)(3) (4), added.) issue interest.” & italics The public subd. of Court of then out that “the statements and conduct which Appeal pointed of rise to causes of action relate to the gave validity [plaintiff’s] specifically the Child Maltreatment Jane Doe case which was the of the study subject and, article to the whether childhood memories of more generally, question (the traumatic sexual can be and later recovered abuse repressed repressed court further observed that the record before memory theory).” appellate (1) the trial considerable evidence of both an ongoing court “contains academic and clinical circles within the field of controversy psychology (2) that the and memory theory, publications to the of validity repressed of these of this debate.” In ongoing light root of this are litigation part circumstances, of defendants concluded that the activities the Court of Appeal is, and investigating, publishing, rise to action—that gave plaintiff’s further- articles—were acts in of their magazine about subjects speaking for of the anti-SLAPP of free purposes ance of defendants’ right speech statute.8 425.16 the second of the section of then turned to step

The Court Appeal of had demonstrated probability prevail- whether plaintiff analysis—namely, to dismiss. Because that the trial court had declined on each of the claims ing can best be understood that are now before this court claims remaining all and of of plaintiff’s of the Court of discussion disposition light Appeal’s claims, merit of each analysis potential we shall summarize that court’s to dismiss. that the trial court declined claims Distress Emotional Negligent

1. Infliction of infliction negligent the first cause of action—for With respect failed that the Court of concluded complaint emotional distress—the Appeal gave plaintiff’s of defendants that rise Appeal concluded that the conduct The Court meaning within the of section public or an issue of interest public action related to a issue (See 425.16, (e)—a clearly post, at that we believe is correct. conclusion subdivision however, 712-713.) Appeal the Court of also point, of this pp. In the course of its discussion any taken figure, that she has never “maintains that she is a [and] noted that any study played role of the Jane Doe case position respect implications with to the clinical theory experiences repressed can be alleged controversy relating to the that traumatic in an agree these assertions.” In then stated: “We with appellate recalled.” The court subsequently figure,” the Court description “private of herself as agreement plaintiff’s explaining its revealed until identity publicly whose was not “[plaintiff], the view that Appeal expressed lawsuit, eye public as a who was in the reasonably person be characterized she filed this cannot gave [plaintiff rise to claims.” allegedly engaged in the conduct which s] when [defendants] maintaining Appeal’s position point, on this vigorously challenge the Court of Defendants conversa transcripts of her consenting videotapes to have the plaintiff, by repeatedly and set extensively educational seminars and used publicly with Corwin disclosed tions article, as a properly cannot be viewed in Corwin and Olafson’s Child Maltreatment forth figure” constitu public a “limited figure” properly must be considered “private but rather name. As not reveal real though even Corwin did speech purposes tional free below, whether necessary plaintiffs to decide in this case do believe it is discussed we with Corwin and use of her interviews publication voluntary respect actions with 720-721, (See post, pp. figure purposes. for constitutional public rendered her a limited time, however, regarding reservations prudent express believe it is we fn. At same person” a “private claim to be unequivocal plaintiffs endorsement of Appeal’s the Court of eye . . . .” In our public who was in reasonably person be characterized as who “cannot support view, would strong argument speech that free considerations very at the least a there is (1) voluntary consent to Corwin’s figure light treating public as a limited voice, her case prominent role that revealing her videotapes face public use memory theory. regarding repressed ongoing controversy study attained in the in this case.” that negligence might apply “articulate any theory “an brief contained court noted that although plaintiffs appellate

appellate ethical obligations breached their that extremely vague argument [defendants] standards,” “iden- had failed to by violating applicable professional allegedly that was standard ethical single obligation professional tify conceded Instead, have essentially contends that breached. she [defendants] a violation article constituted that the Skeptical Inquirer publishing concede Not surprisingly, ethical of a obligations psychologist. [defendants] that concluded no such Court thing.” Accordingly, Appeal negligent- would on her to demonstrate a that she prevail failed probability must be and held that this claim theory, infliction-of-emotional-distress stricken. Privacy Invasion of

2. invasion of With to the second cause of action—for regard privacy—the com the first amended Court of determined that the allegations Appeal torts—(1) two distinct invasion-of-privacy plaint potentially implicated facts, (2) the tort of tort of disclosure of improper improper public Productions, Group Shulman v. W (see intrusion into matters generally 843, Inc. (1998) 214-242 P.2d 18 Cal.4th Cal.Rptr.2d 469] [74 two distinct tort (Shulman))—and it discussed the of these viability separately theories. Tort

a. Public-disclosure-of-private-facts tort, the Court of indi As to the Appeal public-disclosure-of-private-facts disclosures: cated that identified three allegedly improper complaint article, article, that (3) statements (2) the Tavris Skeptical Inquirer cases had established Loftus made in other contexts. Noting past tort, making element of the facts’ “lack of newsworthiness is an ‘private this tort to common law liability” newsworthiness bar complete deter (Shulman, 215), the Court of initially 18 Ca.4th Appeal in conjunction that neither the nor the material submitted mined complaint fact that was revealed in with the motion to strike “identified any private The court newsworthy.” or Tavris articles which is not Skeptical Inquirer these articles disclosed private found in this the extent regard “[t]o in the Child that was not disclosed already information about past [plaintiff’s] article, conclu related to the of Corwin’s validity Maltreatment these facts mother, memory abused repressed sions that [plaintiff] later,” and that “the memory years sexual abuse and then recovered made the debate memory role of the Jane Doe case in the study repressed a of interest.”9 Accord of that case matter validity study legitimate public not demonstrated a the Court of held that had ingly, Appeal plaintiff tort with to regard any of on private-facts probability prevailing or articles. disclosures made in either Tavris Skeptical Inquirer time, however, At the same the Court of concluded that plaintiff Appeal had a of on a tort theory demonstrated probability prevailing private-facts The Court with to statements that Loftus had in other contexts. regard made that Loftus of noted in this that “there is evidence in the record regard Appeal made the statement at an October 2002 conference: following professional ‘Jane Doe behavior that I cannot reveal on advice of destructive engaged ” Jane in the our and that country,’ is my attorney. Navy representing “[t]here evidence that Loftus revealed the first and last initial of [plaintiff’s] also The Court of real name in an unrelated court action.” during deposition comments disclose informa- concluded that Appeal publicly “[t]hese do not relate in to They any way tion about Taus which is not newsworthy. or of the Jane Doe debate validity study, memory any repressed other interest. are clues to the true They identity matter legitimate public and, circumstances, a reasonable could find that Jane Doe under the jury this information was both offensive and disclosing objectionable.” concluded that the Court Accordingly, although Appeal private-facts in the tort could not with disclosures proceed regard any Skeptical Inquirer themselves, the court held that or Tavris articles appellate on a tort theory against demonstrated probability prevailing private-facts allegedly Loftus on the basis of statements that Loftus relating an unrelated made at a conference and during deposition professional action. court

b. Tort Intrusion-into-private-matters tort, under liability With to the which regard intrusion-into-private-matters conversation, into a be for an intrusion “private place, imposed (Shulman, matter ... in a manner offensive to a reasonable highly person” “has 231), 18 Cal.4th the Court of found Appeal (1) establishing identified three intrusions into her zone of alleged privacy: mother in order to obtain biological personal friendship [plaintiff’s] (2) with friends and family about interviews securing information [plaintiff]; means; confidential collecting disseminating fraudulent through that Jane Doe had acknowledged that the Tavris article also disclosed Appeal The Court of University Washington, but the court held complaint against filed an ethics Loftus with the [plaintiff] they because relating University investigation were not that “facts to the they pertain lives” and because also directly personal professional relate to Loftus’s also public interest.” “though directly, memory debate which is a matter repressed not as The Court of files.” Appeal from various court about [plaintiff] of these intrusions. alleged each analyzed

separately intrusion, that held court alleged appellate to the initial regard With is not an intrusion and mother between Loftus [plaintiff’s] friendship “[t]he that subjects that life.” The court explained “[t]he into private [plaintiff’s] to [plaintiff] Loftus were not private discussed with mother [plaintiff’s] mother,” and that “[plain- involved also they obviously [plaintiff’s] because Loftus as with story [plaintiff] has as much to share right mother tiff’s] the Court of Corwin.” Accordingly, the details of her life with has to share did mother befriending conduct in plaintiff’s concluded that Loftus’s Appeal intrusion. a cause of action for improper not support for could be held liable claim that defendants With to regard plaintiffs’ with interviews plain- matters by conducting intrusion into private improper however, means, the Court of Appeal fraudulent tiff’s relatives or friends by to defendant was sufficient support concluded that the evidence presented court relied on theory. on this liability appellate imposition mother, Cantrell, that “Loftus alleged: Margie declaration of foster plaintiff’s with was working late told her she contacted [Loftus] [Cantrell] to come to an office that Cantrell Corwin to help [plaintiff], requested that she the invitation some Cantrell stated accepted answer questions. trusted him she knew Corwin and she knew that [plaintiff] because that when she Cantrell further stated because she wanted to help [plaintiff]. Loftus, her, working that she was ‘saying again met Loftus welcomed with his study Dr. and was his in connection actually Corwin supervisor ” “Cantrell’s declaration is The Court of stated that Appeal [plaintiff].’ a zone of which evidence that privacy undisputed penetrated [defendants] Cantrell, friend and confidant [plain- included who was not close only her, their identity to but also a mother figure misrepresenting tiff’s] has standing pursue that Cantrell only true contend purpose. Appellants that We agree [plaintiff] claim based on these alleged misrepresentations. hand, this On the other her fraud claim. cannot use this evidence to support area of into a show that intruded private evidence is relevant [defendants] Indeed, that evidence actually suggests life. this [defendants] [plaintiff’s] and that it would they sought were that information private aware about the nature had been truthful they have been shared with them concluded the Court of Accordingly, Appeal of their investigation.” purpose on an intrusion- of prevailing had demonstrated probability of Lotus’s alleged misrepresentations tort on the basis into-private-matters Cantrell. in an defendants had engaged claim that

With respect plaintiff’s obtaining private intrusion into matters by improper records, court Court explained plaintiff actually Appeal First, advanced distinct arguments two regard. plaintiff argued defendants had intrusion in engaged gathering information about improper documents, her “from such as medical and protective reports, [child services] which, in files although contained were of a open public, confidential nature.” The Court of found that claim Appeal this portion Shulman, merit, 200, 231, lacked on our 18 Cal.4th relying holding “ examination there can be ‘no of a record liability public ” concerning plaintiff.’

Second, the Court of noted that also Appeal argued that defendants had obtained information about her from documents contained within her file. juvenile Because files are not dependency open such public, confidential, but rather are the Court of concluded that Appeal defendants could be held liable for intrusion if had obtained improper they improperly access to confidential court plaintiff’s defendants juvenile Although records. maintained that medical or ob- vigorously “any they psychological reports tained came Stanislaus divorce public County proceeding”—a record—and out that had failed to pointed adduce that any evidence defendants had accessed confidential court in juvenile plaintiff’s records Solano the Court of County, statement in a declaration Appeal, relying upon from the owner of that one of his Shapiro Investigations had employees “voluminous records” at the Solano copied County courthouse that public case, have been relevant the Jane Doe may concluded that the record contained sufficient evidence from which “a could infer jury reasonably that some form of or misconduct was to obtain confidential trickery employed” files in Solano County. Accordingly, Court concluded that Appeal claim forward in- plaintiff’s could improper-intrusion-into-private-matters go to, sofar as it was based on defendants’ conduct in access gaining improper from, derived using information confidential court juvenile files.

3. Defamation the Court of examined had established a Finally, whether Appeal on her defamation claim defendant In probability prevailing against Loftus. issue, addressing court noted that defamation claim appellate five based on distinct statements—three in the Skeptical appeared article, and two that Loftus had made in other contexts. Inquirer allegedly The Court of found that none of the first four statements Appeal challenged claim, could a defamation but concluded that the defamation properly support action could with final statement proceed regard challenged plaintiff. claim, turned first to the the Court of the defamation analyzing Appeal asserted in the article that plaintiff pro-

three statements Skeptical Inquirer action. in as question, basis for a defamation The statements vided a proper Jane with “(1) are as After met set forth the Court of follows: Appeal, ways, ‘she started in self-destructive behaving Corwin and viewed tapes, terminated her newly home.’ ‘Jane and soon left FosterMom’s [f] back into her life mother after Corwin came with her emerging relationship once, long ago her childhood Her mother lost her and replayed tape. not in contact with one her At this are again writing they and lost 1995. first the adult-child (3) ‘If abuse never happened place, another.’ [][] led it did she does understand be to believe that because mistakenly may make even when no there are reasons a child an abuse might report why act the basis of this “new had occurred. She be led to on abuse acted, with not have results information” that she would otherwise ways case, her her and In this Jane terminated devastating for others. example, her childhood seeing mother after newly re-forming relationship ” tapes.’ failed to The Court of demonstrate concluded Appeal three assertion in of these statements any any either factual express that the could be one or reasonably implying false or statements construed statement, about to the first the court more falsehoods her. With respect the statement could be construed assertion that rejected plaintiff’s reasonably and had run from injured as herself stating plaintiff physically away home, instead that “the statement relates to Jane’s foster mother’s observing about in behavior viewed the recollection Jane’s after she change tapes, and ”— included such toward the foster mother anger which as things expressing to follow ‘strict rules out late and misbehavior’ refusing against staying that, noted, denied as the court “has not appellate engaging conduct plaintiff and third from in.” With the second statements respect Skeptical article, false the Court of concluded that the implication Inquirer Appeal viewing which the statements rise—that video- suggested gave plaintiff her with her biological had caused to terminate relationship tapes when, asserts, “Loftus’s interference” caused it was own mother mother—was actually rift between her and biological subsequent drawn facts . . . that could be from of opinion subjective “expressionQ articles,” and the Inquirer in both Child Maltreatment presented Skeptical and, such, Loftus. against as could not a defamation action support first not contained in the turned to the statement

The Court then Appeal 14, On June defamatory. article that claimed was Inquirer Skeptical article University to the of that and while publication prior Loftus’s against ethics investigation complaint Washington’s plaintiff’s activities was Loftus made the statement investigatory ongoing, following to the during annual of the American speech meeting Psychological Society in Toronto:10 “I continue to be the of efforts to censor ideas. I am target my at the moment and gagged the details. . . . Who after all give you benefits from silence? Who benefits from such in the dark? my investigations thieves, The only who the dark are assassins and cowards.” people operate circumstances, The Court of found that no Appeal reasonable “[u]nder 14, 2001, who heard this statement on June could have it person interpreted as a statement of actual fact Because this statement concerning [plaintiff]. was made before the article was it Skeptical Inquirer published, unlikely Moreover, even connected it anyone to Jane Doe.” the Court of found Appeal article, after the even reason- publication “any Skeptical Inquirer able would understand Loftus’s colorful statement as the rhetoric of person an advocate whose efforts to were agitated promote professional theory thwarted those who her. As used in this the terms disagreed way, ‘ ‘thieves, assassins cowards’ are more than nothing “subjective expres- ’ ” sions of devoid of factual content.” the Court of disapproval, Accordingly, concluded that the June 2001 statement would not Appeal support defamation claim.

With last statement Loftus on which defamation respect based, however, claim was the Court of concluded that the defamation Appeal claim should be forward. statement was the permitted go question same statement made Loftus at the October 2002 allegedly professional conference that the Court of had found could an Appeal previously support above, action for disclosure of facts. As noted Loftus improper public stated at the conference that “Jane Doe allegedly destructive engaged behavior that I reveal on cannot advice Jane is in my attorney. Navy view, our In the Court of these remarks were representing country.” Appeal’s not “an or a drawn expression opinion subjective judgment professional disclosed facts” but rather “could be fully reasonably interpreted behavior or the of ongoing destructive effects implying [plaintiff’s] past behavior make her unfit for service”—a military defamatory implication. Moreover, the Court of concluded that “in contrast to the statements Appeal article, made this statement does not relate to a Skeptical Inquirer matter of interest. It has no on the of the Doe Jane public bearing validity case or on to the study any aspect controversy relating repressed In of its determination that “the has no memory theory.” light public matter,” interest in that the Court of concluded that “the legitimate Appeal truth of the statement is a defense with to which Loftus has alleged respect 10 during acceptance speech upon receiving Loftus’s remarks were delivered her the American Psychological Society’s 2001 William James Fellow Award for scientific achievement. evidence that any Loftus had not of and because presented

the burden proof,” service, the made her for military in behavior that unfit engaged that plaintiff record demonstrated a court held that the probability appellate October 2002 defamation based on Loftus’s on claim for would prevail statement.

4. Court Conclusion- Appeal’s sum, majority the Court of concluded although Appeal dismissed, have it held that claims defendants should been against plaintiff’s action for could with cause of go respect improper the action forward at the facts based Loftus’s statement alleged disclosure private upon public disclosure of plaintiff’s October 2002 conference Loftus’s professional case, (2) a cause of action for in an unrelated during initials deposition alleged intrusion into matters based Loftus’s upon misrepre- improper alleged mother and defendants’ intrusion upon sentations foster plaintiff’s files, (3) a into confidential cause of action for defamation juvenile court Loftus’s statement at October 2002 professional based upon alleged conference.

E. Petition Review and Issues This Court for Before After the Court of issued its defendants for petitioned Appeal opinion, only court, review in this contentions to those claims as to raising relating solely which the Court of had found that defendants’ anti-SLAPP motion Appeal denied. did not review or file Because an properly petition her, the Court ruled any against answer issue on which contesting Appeal no occasion to such issue any we have address here.11 are the Court of issues before us whether Accordingly, only Appeal concluded that under the statute was dismissal anti-SLAPP improper properly four incidents or regard relating following claims or more of defendants: allegedly conduct one engaged statement seminar professional (relating 1. Loftus’s at the October Doe’s which Court of concluded military), Appeal Jane position (a) either a cause of action for disclosure could support public facts, (b) a cause of for defamation. action length curiae brief this court on behalf of asserts some An amicus filed in Skeptical Guyer investigation for the actions undertaken Loftus and course their above, relating As noted subjects violated to human research.

Inquirer article federal standards a rejected complaint claim that the first stated cause of Appeal plaintiff’s the Court amended ethics, professional plaintiff defendants’ did seek alleged action based on breach human-subjects-research raised amicus ruling. Accordingly, issue curiae review of us and addressed. properly is not before will not be 2. Loftus’s disclosure of initials in March during plaintiff’s deposition 2003, a disclosure the Court of concluded would along Appeal support, seminar, with Loftus’s at the October statements a cause of action for disclosure of facts. public private records,

3. Defendants’ collection of information from court which the Court of concluded would a cause of action for Appeal support improper intrusion into matters.

4. Loftus’s of her with Corwin in alleged misrepresentation relationship mother, obtaining information about from foster which the plaintiff plaintiff’s Court of concluded would a cause of action for Appeal support improper intrusion into matters.

We the standard that the determination of a begin by discussing governs statute, motion to strike under the anti-SLAPP and then turn to the applica- tion of that standard to each of the in four incidents question.

II above, As is from trial court on a explained appeal ruling 425.16, motion to strike under anti-SLAPP statute. Section special California’s (b)(1) subdivision in relevant “A cause of action provides part: against from act of that in furtherance of the person arising any right person person’s or free under United States or California Constitution petition speech in connection with a be to a issue shall motion to public subject special strike, unless the court determines that the has that there established is a that the will on the claim.” As the Court of probability prevail recognized, statute a court Appeal applying generally required “First, in a the court decides whether the engage two-step process: defendant has made a threshold that the cause of is one showing challenged action ... activity. If the court finds such a has been arising protected showing made, it then determines whether the has demonstrated a probability (Equilon, 53, 67.) on the claim.” Cal.4th prevailing

Here, we believe there can be no but that defendants’ question general course of conduct from which cause of action arose was clearly “in furtherance exercise of . . . free ... activity speech [defendants’] connection issue” within the of section 425.16. As the public meaning clear, initial Child Maltreatment article itself makes at the time of abundantly defendants’ actions there was a health substantial mental controversy whether, circumstances, field and under what a victim of child regarding abuse of the abuse over a might forget memory long suppress period time and later or other recover memory response questioning

713 article, 91-92.)12 at supra, (See pp. a Child Maltreatment by actions therapist. of Further, in in furtherance were conduct engaged defendants unquestionably regard with (1) investigation an conducting their of free right speech article, (2) and writing respon- of the Maltreatment publishing Child validity article, the Child Maltreatment sive articles conclusions of the questioning the regarding and (3) meetings and at conferences speaking professional set the causes of action forth raised the articles. Because various by issues defendants sought liability upon first amended to complaint impose plaintiff’s conduct, the fell the of scope on basis of the claims within plainly the such statute.13 anti-SLAPP of claim under section in order to avoid dismissal each

Accordingly, 425.16, a of that she demonstrating bore the burden probability plaintiff Parker, Covert & Chidester claim. Wilson v. would on the particular prevail 19, 733], we 50 P.3d 28 Cal.4th Cal.Rptr.2d explained [123 a a entails: order to establish probability prevailing what such “In showing 425.16, an (§ (b)(1)), on claim subd. a to anti-SLAPP responding the ’ ‘ claim.” must and a sufficient motion legally [Cita “state[] substantiate]] is the ‘must that the Put another demonstrate way, complaint tions.] and facie by prima showing both sufficient sufficient legally supported article, very the Child the noted that addition “[i]n At outset of Maltreatment authors subject, to titles of recent scholarly papers the dozens of articles and about this several memory Myth polarized Repressed reflect the nature debate. In The books of this Ketchum, Abuse, Making Memory: Allegations False and and Loftus and Memories Memories, Watters, Psychotherapy, Hysteria, False and and were Monsters: Sexual Ofshe Memory Remembering Healing published. Whitfield’s and Abuse: and Trauma Effects of Debate, Memory appeared Memory/False Pezdek and 1995. In 1996 Recovered Abuse, Assessment, Forensics, Banks, Therapy, by Pope and Recovered Memories of Brown, psychologists, published. experimental were . . . The has divided clinicians debate factual, and arguing past clinicians that recovered memories of traumas are often sugges experimentalists they therapeutic derived arguing be false memories article, (Child supra, tion . . .” at . Maltreatment “The conclusion from this The authors of the Child Maltreatment article then stated: clearest memory, to be about human how both traumatic debate is much remains learned they person who preserved, are how can become unavailable to nontraumatic memories them, discovered, they they are and how can become contami- experienced how sometimes Many unan- questions nated mixtures of accurate and inaccurate information. remain both concerning memory susceptible well. Who are the most phenomenon swered the false beliefs, likely are false most developing these and under what conditions memories false established, Perhaps most stability beliefs over time? occur? Once what is these false answer, definitively whether question, probably elusive to differences important most grounding reality and those apparent can observed between recollections that have little be article, (Child 91-92.) pp. at that are more factual.” Maltreatment 13Although in case that deposition disclosure of initials occurred Loftus’s issue, investigation articles at as described below publication unrelated was relating (post, 723-724) question pp. response the disclosure in direct to Lotus’s resulting imposition of investigation controversy, potential and the and thus the liability scope fell within the of the anti-SLAPP statute. on basis of this statement also facts to a sustain favorable if the judgment evidence submitted the plaintiff merit, is credited.’ the deciding of the trial question potential [Citations.] court the considers pleadings submissions of both the evidentiary plaintiff 425.16, (§ and the defendant (b)(2)); subd. the court does not though weigh evidence, the credibility of comparative probative strength it competing if, law, should the grant motion as a matter of the defendant’s evidence the motion defeats the supporting plaintiff’s establish attempt evidentiary 821, (28 for claim. support italics.) (See Cal.4th at original [Citation.]” also, 53, e.g., Equilon, supra, 29 Cal.4th 63 425.16 “subjects [section dismissal . . . those potential causes of action as to which the plaintiff unable [citation], to show a on the merits probability prevailing a provision we have read as determine the court to ‘requiring if the has only plaintiff ”]; stated and substantiated a sufficient claim’ legally Varían Medical Systems, 180, (2005) 298, Inc. v. 35 Cal.4th 192 106 P.3d Cal.Rptr.3d [25 958] Delfino section 425.16 “the trial court evaluates the merits of the [under lawsuit using a at an summary-judgment-like procedure early stage litigation”].) demonstrate,

As the decisions foregoing although by its terms section 425.16, (b)(1) subdivision calls a court to determine whether “the upon has plaintiff established that there is a probability that will plaintiff prevail on the (italics added), claim” cases past establish interpreting provision court, that the did Legislature not intend that a on a motion to strike ruling statute, under this would weigh evidence to determine whether it conflicting claim, is more than not that probable will on the plaintiff but rather prevail intended to establish summary-judgment-like available at an procedure early stage litigation effect on poses potential chilling speech-related (See activities. also v. Eden Briggs (1999) Council &Hope Opportunity 19 1106, 471, Cal.4th 564]; 1122-1123 969 P.2d Rosenthal Cal.Rptr.2d v. [81 394, Great Western Fin. (1996) Securities 14 Corp. Cal.4th 412 [58 1061].) P.2d when a Cal.Rptr.2d defendant makes the Accordingly, threshold that a showing cause of action that has been filed him or her against conduct, out arises of the defendant’s speech-related affords provision defendant the at the earliest to have the opportunity, stages litigation, claim stricken if the is unable to plaintiff demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a facie case prima with to the claim. respect above,

As discussed the Court of held that failed to Appeal plaintiff establish such probability to the bulk of defend- prevailing regard directed, ants’ conduct to which the did not seek complaint review of the court’s decision. appellate Accordingly, claims found deficient the Court of are not before us. The issues before us are Appeal limited to those claims as to which the Court of found that Appeal had established a facie adequately case to avoid dismissal under section prima noted, 425.16. As claims relate to defendants’ conduct in four question made Loftus at a (1) professional instances: a statement allegedly separate military, in the Jane Doe’s disclosing position conference in October in March initials at (2) deposition Loftus’s disclosure plaintiff’s information from confidential collection of alleged defendants’ improper article, (4) Loftus’s court files in researching Skeptical Inquirer in order to obtain with Corwin alleged misrepresentation relationship foster mother during relating article. and research for investigation Skeptical Inquirer with each these claims in turn. As we shall explain, respect We discuss of at the October 2002 conference to the first three matters—Loftus’s statement Jane in the Loftus’s disclosure of military, plain- Doe’s disclosing position and defendants’ alleged improper tiff’s initials at a March 2003 deposition, conclude that the Court of collection of information from court files—we her establishing satisfied burden Appeal finding erred With facie case on cause of action based on these incidents. any respect prima to the fourth matter—Loftus’s of her alleged relationship misrepresentation foster with Corwin for the information from obtaining purpose mother—we the Court determination that a with agree prima Appeal’s facie case has been established.

III Plaintiff’s claims the October 2002 conference are based regarding entirely witness, on the Crook. Lynn facts set forth a declaration of single Crook’s declaration states that she has a master’s in educational degree an and discloses “investigative is psychology journalist profession,” as she “first encountered” Loftus in the when Loftus testified mid-1990’s an adverse witness in a civil sexual abuse case in which Crook herself expert was the The declaration that Crook and Loftus reveals plaintiff. subsequently relations, have had a of hostile with Crook long-standing history filing series of ethics Loftus with the American against Psychological complaints Association and the and Loftus University Washington, responding what Crook’s declaration characterizes as harassment.” “years systematic

The bulk directed at Loftus’s activities and of Crook’s declaration is article and methodology investigating writing Skeptical Inquirer that were the Court of thus is concerned with claims rejected Appeal court, of the declaration and that are not before this but three paragraphs relate to at the October 2002 conference. The declaration Loftus’s statements Memory states in this that in October Crook attended False regard Illinois, and was at a talk Foundation conference held in Syndrome present The declaration states that Loftus’s Loftus at the conference. given by but that Crook “made careful remarks were not audiotaped videotaped, notes.” The declaration indicates Loftus although expressed sympathy mother, Loftus’s and tone when plaintiff’s biological “composure changed tone, ‘Jane’ herself. In a she told the audience: ‘Jane about sarcastic talking Doe in destructive behavior that I cannot reveal on advice of engaged my ” view, Jane in the our In Crook’s country.’ attorney. Navy representing “the clear was that ‘Jane’ had in such destructive engaged activity implication even as to render service Navy questionable, dangerous perhaps to the country.”

Loftus submitted a declaration and a declaration in support supplemental strike, made motion to issue with Crook’s version of statements taking declaration indicates that Loftus at October 2002 conference. Loftus’s she was invited to at the October 2002 conference of the False Memory speak Illinois, Foundation in and on that occasion she lectured Syndrome Chicago, article, on the Jane Doe from the directly “mostly reading Skeptical Inquirer article.”

With to the attributed to her Crook’s declara- regard statements specific tion, Loftus does not at different October 2002 deny stating points during conference that Jane Doe in “destructive behavior” or that she was engaged “in the but she denies that the two statements were in military,” any way recall, linked. Loftus’s declaration states: “As I to a question response now,’ from the audience what Jane Doe was I ‘doing about I understood that she was ‘in the I never said or military.’ simply responded implied Jane Doe was not ‘fit’ to serve in the I did not intend to make that military. The declaration further states that with to “the use of regard implication.” ‘destructive,’ how Jane term I did use that term in the article in describing Doe had reacted to her memories of her recovered purportedly purported Mom, I Jane ‘According changed dramatically abuse. wrote: Foster alleged the interview . . . She started in self-destructive behaving after with Corwin. too, but I did I have mentioned this in the lecture ways.’ may point [Citation.] was, behavior even I did though not what the ‘self-destructive’ specify I did elaborate at the time out of my more information. possess specific concern for Jane Doe’s privacy.” did not the details of Jane Doe’s self-destructive Loftus into

Although go article or at the October 2002 behavior in either the Skeptical Inquirer conference, “Now that Plaintiff has brought Loftus’s declaration states: action, defense, comments were my it is I my explain appropriate Jane Doe’s investigation. based on information that I had learned during my her that after shortly apparently foster mother told me interview of during my Plaintiff started with boys her memories in recovering sleeping of the house at And she night. apparently Plaintiff also snuck out doing drugs. observation about of her foster mother. At the time I made this left care behavior, true. facts to be underlying Jane Doe’s ‘destructive’ I believed I learned from my To this I to believe that the information day, continue research was truthful.” declaration, the declaration

In to this of the Loftus response portion into the deliberately submitted states: “Dr. Loftus has by plaintiff dumped told her that after record her declaration here that Cantrell Margie her memories in . . ‘Plaintiff started with ‘recovering boys 1995’ . sleeping ... I am astonished as to the to which doing drugs.’ absolutely depths defendant Loftus will These are attributed to someone who statements stoop. was defrauded into to Dr. The statements have anything Loftus. saying time, reflected concerns Ms. Cantrell had at the but are false statements.” they Cantrell also submitted a declaration that she stating agreed speak Loftus after Loftus had her with Corwin. only misrepresented relationship declaration, however, Cantrell did not the statements about deny making attributed to her Loftus’s declaration. above, As discussed the Court of held that Appeal allegations and the the trial declarations filed with court complaint relating Loftus’s statement at the conference were alleged sufficient October (1) establish a facie case with to two causes of action: prima respect improper facts, disclosure of We public defamation. turn first cause of action. public-disclosure-of-private-facts Action Public-disclosure-of-private-facts A. Shulman, 214, supra, 200,

In this court’s we decision 18 Cal.4th set forth the elements of the tort as follows: public-disclosure-of-private-facts “ ‘(1) (2) (3) disclosure of a fact would be offensive and public which private objectionable (4) reasonable which is not of person legitimate ” element, in Shulman concern.’ In public fourth we discussing explained tort, that “lack of newsworthiness is an element of the facts’ making ‘private (Id. 215.)14 newsworthiness a bar to common law complete liability.” Considering the relevant facts revealed the record in light tort, elements of the we with the public-disclosure-of-private-facts disagree Court of conclusion that facie case with established Appeal’s prima with, to this tort. To we whether either regard begin very have serious doubts of the statements in Jane Doe in “destructive behav- engaged question—that ior that I cannot that Jane Doe is in the my reveal on advice or attorney,” disclosure of the kind of sensitive or intimate Navy—constitutes sufficiently 14 to, privilege Shulman also observed that newsworthiness is “a constitutional defense or (Shulman, against, liability publication of truthful information.” 18 Cal.4th to the reasonable fact “which would be offensive and objectionable so as to a cause of action under public-disclosure-of- person” support Coverstone v. Davies (See, 38 Cal.2d e.g., tort. private-facts to “the unwar- P.2d tort applies [public-disclosure-of-private-facts [239 876] defendant of intimate details life” ranted plaintiff’s private publication here, however, (italics because added)].)15 We need not decide question that the disclosed—relating unlike the Court of we conclude facts Appeal in the case have study may to how the described generally experiences are conduct and career as an adult—clearly affected Jane Doe’s subsequent be the basis of such a tort and for that reason cannot newsworthy, properly action. Shulman discussed the “newsworthiness” standard

Our decision here. We some and it is useful to review that discussion length, explained of otherwise individuals “courts have generally protected privacy that a nexus exist logical involved in events of interest public ‘by requiring and the matter of . . . interest.’ between the individual complaining public if or broadcast are only The contents of publication protected [Citation.] to a matter of legitimate have ‘some substantial relevance they public Thus, recent decisions have tested newsworthi generally interest.’ [Citation.] by assessing logical ness with to such individuals regard relationship nexus, thereof, brought or the lack between the events or activities and the facts . . . This into the disclosed. eye particular person public decisions, with our own in that it balances the public’s accords approach prior to know interest by drawing protective right against plaintiff’s privacy to have substantial any line at the material revealed ceases point This newsworthy connection to the matter of the subject report. [Citation.] and cited also echoes the Restatement commentators’ widely quoted approach sufficiently question question pertain the comments In addition to the whether tort, there is an support public-disclosure-of-private-facts or intimate matters to sensitive question alleged support public-disclosure-of- whether statement can either additional a defamation action inasmuch as Loftus never disclosed private-facts action or conference, contending identity simply but referred to her as Jane Doe. at the October 2002 action, cases that support upon can both causes of relies the statement nonetheless defamation even if it does not may support hold that a statement a cause of action for name, identify long recipient as a of the communication specifically plaintiff the so (See, e.g., plaintiff. reasonably that the statement was intended to refer to understands Here, 297].) Washer v. Bank America P.2d the statement 21 Cal.2d 829 [136 study subject of the case clearly particular person—the was intended to refer to a question by name and subject article—but was not identified described in the Child Maltreatment hereafter, conclude, discussed identity widely Because we for reasons was not known. deficient and the defamation action are that action public-disclosure-of-private-facts both reasons, the October 2002 whether the circumstance that other we need not determine for respect defect with identify plaintiff by represents an additional fatal statement did not name cause of action. either

view that interest does not include ‘a morbid sensa- legitimate public (Shulman, supra, its sake ....’” own tional into lives prying 200, 223-224, omitted.) Cal.4th citations

Shulman also makes it clear that newsworthiness measuring analysis “[a]n in an event of facts about an otherwise involved involuntarily private person their matter subject interest relevance to public newsworthy incorpo .... In it is not rates considerable deference to editors reporters general, (Shulman, for a court or how a is best covered.” jury say story particular supra, 200, 224-225, omitted.) 18 Cal.4th fn. our interference “By confining cases, to extreme the courts ... the exercise of unduly limiting 'avoid[] ” (Id. effective editorial at judgment.’ p. Shulman, case, claim Defendants this unlike plaintiff plaintiff should not be viewed as “an otherwise involved involuntarily private person interest,” in an event of because consented to have public voluntarily plaintiff of her sessions with Corwin used for educational videotapes purposes view, set forth in a article. Plaintiff published challenges contending she limited and that the treated as gave only consent consent should be her life to having broadly intensive opened scrutiny. because, assume,

We need not resolve even if we question contends, “an should be considered otherwise private person involved in an event of involuntarily interest” within the public meaning (Shulman, the Shulman decision supra, 224), 18 Cal.4th we conclude that under the standard set forth in Shulman it is nonetheless clear that the above, statements here at issue were discussed a number of As newsworthy. the commentators whose articles about the Jane Doe case were study with the Child Maltreatment article itself remarked that it would be published and of interest from an to learn the effects of important standpoint academic the events described in the case Jane’s future study upon development. light of the Jane Doe case in the prominence study memory repressed field, we find that the disclosure of such facts was This is newsworthy. true because the particularly revelations issue—that Jane Doe particular engaged in “destructive behavior” and “is unspecified now in Navy”— Shulman, (Cf. were not of an “[intensely or intimate” nature. personal 18 Cal.4th at balance of free interests press privacy [“the a different conclusion when the intrusiveness of the revelation is require to its relevance. rev- greatly or intimate disproportionate Intensely personal not, case, elations in a be considered might given newsworthy, especially where bear relevance to a con- they only slight legitimate topic public circumstances, cern”].) Under we these conclude that record does not a determination that has facie established case support prima facts based alleged disclosure Loftus’s statement improper upon conference. October 2002 professional 720

B. Action Defamation at the noted, Loftus’s statement alleged that determining As in addition to disclosure a tort action for improper conference could support October 2002 could facts, this statement also held that the Court Appeal For the reasons Loftus. against a cause of action for defamation support hereafter, we disagree. discussed false, (b) is (a) a that “involves publication

The tort of defamation (e) tendency and that has a natural (d) (c) defamatory, unprivileged, Witkin, of Cal. Law (5 Summary that causes damage.” or injure special 782, Code, cases.) Torts, 529, Civ. 45-46 2005) citing (10th §§ ed. § a cause of action at issue could support that the statement concluding defamation, “this statement is not an expression held that the Court Appeal disclosed fully drawn judgment a subjective or professional opinion is in the military truth of the factual assertion [plaintiff] facts. The However, statement challenged when viewed in its totality, undisputed. destructive ongoing that Taus’s be reasonably interpreted implying could unfit for service.” military behavior make her or the effects of past behavior matter, two to Loftus’s declaration—the even if—contrary As an initial if statement and even together single were linked sentences question of the defamatory reasonably susceptible that the statement was we assume unfit for military Loftus intended to imply meaning could be service, that such a statement properly doubtful very it appears action), (which could a defamation support viewed as a statement of fact v. (which cannot). (See, Gregory e.g., opinion rather than an expression of 641, 596, Cal.Rptr. 17 Cal.3d Douglas Corp. [131 McDonnell 425].) 552 P.2d facie event, to establish a prima failed we conclude

In any not raised by parties claim in factor light on the defamation case to which the qualified privilege the Court Appeal—the considered the so-called common-interest are entitled under statements question 47, (c)(1). (See subdivision Civil Code section established by privilege 591-594, Law, Torts, Witkin, of Cal. Summary §§ generally 867-874.)16 pp. (c) was not discussed subdivision of Civil Code section potential applicability our research indicated Appeal, Court of but because the trial court or any parties briefs parties supplemental invited the to file statutory provision, we relevance of this

potential have done so. parties to the issue and addressed statutory Civil Code qualified privilege established that the our conclusion In view of context, question we need not reach (c) present in the applies section subdivision

721 47, “A (c)(1) in relevant Civil Code section subdivision provides part: (c) . In a is one made: . . or broadcast publication [][] privileged [f] therein, communication, malice, (1) one by to a interested without person section interested . . .” In California cases light applying who is also . past 47, here in (c)(1), it is clear that the statement alleged defamatory subdivision author, Loftus, and statement made a by psychology professor question—a mental health a conference attended other by professionals professional reach of related to the of the conference—falls within the that was subject v. Reusser e.g., Lundquist (See, common-interest statutory privilege. 1193, 776, (1994) 7 Cal.4th 1204 875 P.2d Cal.Rptr.2d [31 1279] [“The at issue in the defamatory do not that the statements allegedly parties dispute case, a defendants at a seminar to common by sharing made present persons for were made a occasion’ breeding, interest horse upon ‘privileged Institute Athletic Motivation v. of the common-interest privilege”]; purposes 1, Illinois University (1980) 114 7-14 Cal.Rptr. Cal.App.3d 411] [170 letter, to criticizing “sports- privilege applies plaintiff’s [common-interest that sent education testing, university was specific” psychological by physical v. Rosen (1975) to magazines]; athletic Katz professor organizations sports 48 1032 privilege applies Cal.App.3d Cal.Rptr. [121 853] [common-interest local letter sent bar association by complaining plaintiff defendant Smolla, (2d See 2 Law of Defamation ed. attorney’s generally conduct]. 8.56, 8-38; 1997) (1978) 8-36 to The Law of Defamation Eldredge, pp. § 87, 481, 484-485.) pp. § 47, (c),

Under Civil section defendant generally Code subdivision bears the initial burden of that the statement establishing question occasion, made on a and thereafter the burden shifts to privileged Reusser, v. establish that the statement was made (Lundquist with malice. 1193, 1202.) 1 Cal.4th the evidence on the motion Because presented to strike the statements the October 2002 clearly demonstrates occasion, conference were made a bore the burden of on privileged “ facie case that these were made with establishing statements prima ‘[ac ” Code, 48a, in Sanborn (Civ. v. 4(d).) tual malice.’ subd. As we explained § Chronicle Pub. Co. 18 Cal.3d 556 P.2d Cal.Rptr. [134 “ ‘The malice to defeat a is “actual necessary qualified privilege 764]: malice” which is established that the was motivated by showing publication the defendant showing hatred or ill will towards the belief truth lacked reasonable in the grounds publication ” (citations).’ therefore acted in disregard rights reckless whether, contend, vigorously plaintiff—by repeated virtue of her consent to have as defendants background disclosed and utilized Dr. Corwin in videotaped publicly interviews settings—should public be a limited professional conferences and other educational considered constitutionally based figure bring play qualified privilege so as to into under First Amendment the federal Constitution. view, the motion to strike the evidence in the trial court on our presented malice, is, actual is insufficient to establish a facie case of clearly prima Loftus, statements at October making alleged establish conference, or that Loftus acted out of hatred or ill will toward plaintiff the truth of her statements. It is lacked a reasonable basis for believing conference, either that at the October 2002 Loftus did not reveal undisputed that Jane Doe’s or the details of the “destructive behavior” identity plaintiff’s belie the that seemingly foster mother had revealed to Loftus—circumstances Further, claim that Loftus acted out of hatred or ill will toward plaintiff. denies in the specific in her declaration although plaintiff explicitly engaging that she learned from alleges plain- instances of destructive behavior Loftus mother, in that declaration that her foster tiff’s foster acknowledges plaintiff in such engaged mother have had concerns that she (plaintiff) mother, although taking conduct. The declaration filed foster by plaintiff’s that the foster Loftus’s conduct in other does not deny issue with respects, circumstances, to Loftus. Under these we mother made such statements a case that Loftus made conclude that failed to establish facie prima plaintiff will, out of hatred or ill or with statement alleged defamatory question the truth the statements. reckless disregard contention, which relies to factors

Contrary upon plaintiff plaintiff’s Loftus’s held views on strongly a claim of malice—principally support issue, the soundness investigating Loftus’s memory repressed persistence and Loftus’s article objections, Corwin Olafson’s despite plaintiff’s filed the ethical that with acknowledged complaint displeasure not sufficient to her with the against University Washington—are support the alleged that Loftus acted with actual malice in making determination conference. statements the October question professional (c)(1) is in Civil Code section subdivision embodied qualified privilege an to statements made on such just intended to substantial protection provide occasion, fall far short of and the circumstances relied by plaintiff upon Loftus made these statements an basis for finding providing adequate v. Block Weingarten (Accord, Cal.App.3d with actual malice. 701].) 144-151 Cal.Rptr. [162 facie failed to establish prima we conclude

Accordingly, for defamation based upon case with to a cause of action regard made the October 2002 statements to have been Loftus alleged conference. sum, erred in permitting plaintiff’s we conclude that the Court Appeal at the to Loftus’s statements alleged

action to forward go respect conference, disclosure of either as a cause of action for public October 2002 for defamation. facts or

IV We next address the Court of could Appeal’s holding plaintiff properly cause action for disclosure of pursue facts based improper public Loftus’s disclosure of the initials of first and at a upon last names in an unrelated deposition case. As we we conclude that the Court of explain, erred in Appeal determining had established a probability on such a claim. prevailing

The facts this claim can be underlying summarized. briefly During in an unrelated deposition case in which Loftus had been retained as an witness, a expert arose Loftus’s recent question regarding move from a at the to a professorship University Washington at the position University Irvine, of California at and the counsel in that plaintiff’s asked proceeding Loftus whether she the knew name of the who had filed a person complaint her the against University Loftus Washington. answered: “I do know name, her but I would rather her continued protect privacy.” deposition as follows:

“Q: Can you me the give initials? Well,

“A: she’s called Jane Doe in the article.

“Q: I see.

“A: But her real initials are N.T.

“Q: Okay. mean,

“A: I I just didn’t want her name around in a record.” floating public noted, As the Court of held that Appeal Loftus’s disclosure of plaintiff’s initials could a claim for support disclosure of improper public facts. private The court based its determination on its view was not plaintiff’s identity interest, a matter of and because the public revelation of initials plaintiff’s Doe, was “clue” to the true of Jane identity Court of concluded Appeal that “a reasonable could find that jury this information was both disclosing offensive and objectionable.” reasons,

For several we disagree with Court of conclusion that Appeal’s Loftus’s disclosure of initials plaintiff’s during can deposition properly for a tort provide support cause of action for disclosure of improper public First, facts. even if we assume private that the court was correct in appellate identity that the concluding subject of case discussed in the study interest—an Child Maltreatment article not a matter issue public not, not, clear that the need and do decide—we believe it is mere we initials be considered to constitute disclosure could plaintiff’s properly her as to an action for disclosure of so identity public public support disclosure of facts.17 private

Second, it is clear in event that Loftus’s initials any disclosure claim for disclosure of at the cannot deposition support improper 2003, 1, more than two facts because the occurred on March deposition (on filed the in the case weeks initial complaint present after 2003) in which herself name February provided full had been identified as Jane Doe in identified herself as who person Thus, articles. time of Child Maltreatment Skeptical Inquirer her true revealed plaintiff already identity, deposition question, did not fact whose Loftus’s answer disclose deposition clearly liability revelation be the basis for the under the imposition could (See, tort. v. Chronicle Sipple e.g., public-disclosure-of-private-facts (1984) 154 Publishing Co. Cal.App.3d Cal.Rptr. 665] [201 further is no when defendant liability merely gives publicity [“there .”].) . . already information about the which is public erred in that Loftus’s Accordingly, determining the Court Appeal initials during deposition question properly disclosure plaintiff’s for disclosure of could for cause of action provide private support public facts.

V next the Court holding plaintiff We consider of Appeal’s properly a cause action for a distinct invasion-of-privacy could proceed defendants’ tort—the tort of intrusion into matters—based upon private action in confidential court records. obtaining allegedly improper 200, 231, Shulman, 18 we In our decision in Cal.4th supra, explained of the California decisions have the formulation intrusion-into- adopted forth in 652B of the Restatement Second tort set section private-matters otherwise, intrudes, “One who or intentionally physically upon Torts: concerns, or of another his affairs or is subject solitude seclusion or be the intrusion would of his if liability privacy, other invasion omitted.) (Boldface briefly offensive to a reasonable highly person.” 17 protect initials in order to regard, practice employ In this we note that it is this court’s deemed protection in which such privacy parties or other individuals in circumstances 5:13, 179-181.) (See (4th 2000) pp. Style Manual ed. 5:9 to appropriate. §§ Cal. Shulman, this formulation in we stated that “the action for encapsulating intrusion (1) has two elements: intrusion into a conversation or private place, matter, (2) (Shulman, in a manner offensive to a reasonable highly person.” supra, 18 Cal.4th at As full of this Shulman’s discussion p. explained tort, however, concise restatement of the elements of opinion’s two-part the tort was not intended to alter either the Restatement’s that the requirement intentional, intrusion another’s be or the upon Restatement’s privacy recogni- tion that the tort includes not intentional into only highly offensive intrusions another or conversation but also offensive person’s private highly place intentional or concerns. With intrusions another person’s private affairs upon Shulman observed: “To to the latter regard point, opinion prove intrusion, actionable must show the defendant some plaintiff penetrated or zone of or obtained unwanted physical sensory surrounding, privacy about, access to data The tort is if the plaintiff. only proven an objectively reasonable of seclusion or solitude in the expectation place, (Id. conversation 232, data source.” added.) italics noted,

As contended in the Court of that she had estab Appeal lished a facie case for prima purposes intrusion-into-private-matters tort based defendants’ action in upon informa collecting utilizing private tion concerning contained in both and confidential court files. public The Court of Appeal recognized claim is untenable insofar as it is based defendants’ upon examination and disclosure of medical or other contained in court records that are open to reports public, even if the information in the otherwise be reports might thought informa Communications, (See, e.g., Gates v. Discovery tion. Inc. (2004) 34 Cal.4th 679, 663, 552], Cox 101 P.3d Broadcasting Cal.Rptr.3d [21 quoting v. Cohn Corp. 420 U.S. L.Ed.2d 95 S.Ct. [43 1029] ‘the States [“ sanctions on the impose of truthful publication information contained in ”]; official court records open public inspection’ Shulman, 200, 231.) hold, 18 Cal.4th The Court of went on to Appeal however, that the record before the trial court could a claim that support defendants obtained court records information private Solano County from to file that were not relating to plaintiff’s juvenile open dependency and the Court of public, found that a cause of Appeal action for intrusion into matters could be based private such conduct. upon alleged conclusion, In the latter reaching the Court of relied a Appeal upon statement contained in a declaration filed by whose Harvey Shapiro, investigation had been hired company, Shapiro Investigations, Loftus to declaration, search court records in Solano In his County. stated that Shapiro one of his assistants had public “voluminous records” on file in the copied Solano court. In that County concluding this statement was sufficient to a establish facie case that prima defendants had obtained information from files, confidential court the Court of assumed that the Appeal apparently only that regarding plaintiff court records in Solano contained information County her. Based on this relating were confidential records to juvenile dependency the Court of determined that declara- although Shapiro’s assumption, Appeal records,” tion referred to his assistant’s examination of explicitly “public only would that defendants declaration nonetheless conclusion support obtained court records in Solano County. somehow had copies confidential After filed its sought rehearing the Court defendants opinion, Appeal that the court’s conclusion on this issue ground appellate court on was based on an erroneous In conjunction rehearing premise. defendants that the Court of take notice of judicial petition, requested Appeal records a number of voluminous from non-juvenile-dependency proceedings Solano death wrongful County—including guardianship proceeding to the action on behalf—that are brought plaintiff’s properly public open Court of that contain substantial relating plaintiff. Appeal as denied well as notice. rehearing request judicial review, we defendants filed a motion granted requesting After this court take notice of the records in Under Evidence Code judicial question. any section a court take notice records court judicial state, relevant to the whether records are question question establish a facie case that has sufficient evidence to presented prima information about defendants obtained improperly court we have the motion to take Accordingly, granted records. confidential court notice of records. judicial proffered defendants, County of the court records from Solano light presented that the erred in suggesting

we conclude Court Appeal Shapiro that defendants collected infor- declaration itself would conclusion support Solano County mation about from confidential court records. The are and that records in court records that are open public question true and also identify contain numerous references plaintiff’s identity action (The Cantrell mother. death wrongful foster plaintiff’s court was filed on behalf of plaintiff included in the Solano records County ad Plaintiff litem.) Cantrell as failed guardian present any strike that would indicate that evidence in motion to opposition assistant, or obtained access to his else anyone Shapiro, improperly confiden- tial court files. circumstances, erred in

Under we conclude that Court of Appeal these facie case of intrusion into had established holding prima collection and dissemination based defendants’ matters upon court records. County information contained in Solano

VI we reach what Finally, to be appears most substantial claim—the plaintiff’s claim that Loftus committed the tort of intrusion into matters in obtaining personal about former foster plaintiff’s mother, Cantrell, Margie (Loftus’s) intentionally misrepresenting with Corwin. The Court of relationship held that the evidence before Appeal the trial court was sufficient to this cause of permit action to forward. go

The facts relevant to this claim are contained in three declarations were Cantrell, before the trial (1) court: a declaration of filed in conjunction dismiss; with the to the opposition (2) motion to a supplemental declaration Loftus, filed in with the conjunction reply and opposition; declaration (the by Harvey Shapiro whose private investigator company Loftus, hired by who arranged between meeting Cantrell), Loftus and filed support see, motion to dismiss. As we shall the version of the relevant events set forth in Cantrell’s declaration conflicts with the sharply version described in the Loftus and declarations. Shapiro declaration,

In her Cantrell states that she was foster mother in the early adolescence, 1990’s during plaintiff’s that she met Corwin during period “knew that he and Nicole had a professional relationship related to her past history child abuse and the painful of her breakup parents’ marriage,” that she “found Dr. Corwin to be polite respectful and considerate of Nicole’s feelings.” Cantrell further states that in late 1997 Loftus, she was contacted by who allegedly represented Cantrell “that she Corwin, was working with David M.D. Nicole” and who help asked Cantrell “to come down to an office located in town to answer a few questions.” Cantrell states in her declaration that “[g]iven contacts my past Corwin, with Dr. and my him, understanding Nicole’s trust in I accepted the invitation in order to Nicole in help any I could.” way

Cantrell indicates in her declaration that when she arrived for the interview Loftus, Loftus was seated in a room with a man. When Cantrell entered herself, and introduced me, “Dr. Loftus smiled and welcomed saying again that she was with Dr. working Corwin and was actually his supervisor connection with the study Nicole.” to Cantrell’s According declaration: “Dr. Loftus asked if she could record the on interview audiotape,” “relying on entirely Corwin,” that she worked representations with Dr. [Loftus’s] Cantrell agreed. The declaration continues: “The lasted questioning several hours I believe. During course of the interview the about questioning Nicole seemed to become hostile. I increasingly became concerned and asked Dr. Loftus if she worked really with Dr. Corwin or to that something effect. ... I recall that my confrontation caused a reaction on the of both part I felt that had not been honest the man and the woman. told them that I they I were did not really doing. They with me and asked them what they respond. I I that turn the machine off. frightened. recording became ... demanded they give They that did so. I demanded that me they believe ... they tape. ... left immediately, extremely refused. I upset.” after learning

Cantrell states in her declaration that subsequently further him, “I felt humiliated Corwin that Loftus was associated with I about Nicole’s confidential matters someone talking because had been to Cantrell states confidentiality.” I was led to believe was bound respect incident, I “I have become and that estranged,” that this Nicole “[s]ince interview, that, no Nicole believes that I am am informed because of “I This me Cantrell further indicates that saddens longer trustworthy. deeply.” if have to be interviewed she had would never consented [Loftus] about true and focus and would have said identity nothing disclosed her voluntary Nicole without Nicole’s full consent.” knowing filed, was Loftus filed a After Cantrell declaration supplemental “I that I ever unequivocally deny declaration that stated relevant part: with David ‘working to Ms. Cantrell—or else—as myself anyone represented Corwin, I that I was his M.D.’ or that in any way suggested implied to effect. Ms. Cantrell have misunder- may possibly or words ‘supervisor’ me I mentioned Dr. Corwin’s interviews with stood when undoubtedly However, as associated with way myself Plaintiff. I in no again, represented I.” Dr. Corwin nor would “Further, as the

Loftus’s declaration continues: interview supplemental to knowledge, with Ms. Cantrell was never tape-recorded—nor, my . . statements in the declaration . that refer even present—the tape-recorder declaration, no in her Finally, make sense. simply tape-recording that she interview became ‘hostile’ and became Ms. Cantrell declares she left ‘immedi- and that she was ‘frightened’ ‘extremely upset’ inconsistent with my This characterization of our interview ately.’ entirely which was concluded when day recollection of our interview lengthy already with Mr. who she knew Shapiro Ms. Cantrell photographs posed and with me.” declaration, declaration as which was filed Cantrell’s prior

The Shapiro strike, motion to additional informa- an exhibit defendants’ initial provides In with Cantrell. the events Loftus’s interview leading up tion regarding declaration, July first came to his office in states Cantrell his Shapiro to a unrelated matter totally to and with matter regard prior Loftus he was hired Loftus. September which subsequently Jane Doe referred his identifying contacted requested help Shapiro article, to in the Corwin a case that involving Loftus believed have may in originated Solano one of County. Shapiro assigned his assistants to search Office, records at the Solano Clerk’s and in public County relevant searching court Cantrell) records assistant discovered a name that was (Margie familiar to the assistant. In a conversation between subsequent telephone Loftus, Cantrell, Loftus interest Shapiro expressed meeting declaration Shapiro’s states Ms. Cantrell was in “[s]erendipitously, my staff, office to one of speaking my conference with during my [P]rofessor Loftus.” declaration continues:

Shapiro’s “When Loftus asked if I could [P]rofessor Cantrell, arrange between Professor meeting Loftus and Ms. I immediately went to where Ms. Cantrell was with one of staff and speaking my asked Ms. Cantrell if she would be to discuss her work willing as a foster mother with a friend of mine. . . . Ms. Cantrell was delighted about her speak work aas foster mother and to meet agreed within next few . . . days. later, 27, 1997, Several , on days September assistant . . . my [P]rofessor Loftus, Cantrell, and I met Fairfield, with Ms. Margie in my California office. . . . Ms. interviewed, Cantrell was delighted to be four hours provided of information and details, gave Loftus a great many including [P]rofessor names, addresses and such of and Plaintiff Nicole concerning Taus.” Finally, declaration Shapiro interview, states: additionally to her “Subsequent Ms. Cantrell returned to office with my and more photos information of and concerning Plaintiff Nicole Taus.” reveal,

As these declarations there is a conflict in the evidence sharp in the record whether regarding Loftus represented herself to Cantrell as working with or associated with Dr. Corwin. Cantrell asserts that Loftus repeatedly made such a Loftus representation; denies vigorously such making any At the representation. present stage we have no occasion to proceeding, resolve this conflict. As we have (ante, above at explained 713-714), pp. under the standard set forth in cases past section interpreting applying 425.16, an action not be dismissed under this statute if the has plaintiff that, admissible presented fact, evidence if believed trier of would Parker, a cause of support action against Wilson (See, the defendant. e.g., v. Chidester, Covert & supra, 821.) Cal.4th Accordingly, it is although that a certainly possible trier of fact could find that Cantrell’s version of the asserted events has been distorted desire to acknowledged regain lost trust and (her confidence of former foster daughter), juncture whether, our role is limited to if the determining only trier of fact were to find that Loftus made the alleged to Cantrell misrepresentations order to obtain personal and obtained concerning plaintiff such information by virtue of those misrepresentations, this conduct would be sufficient to a cause of action support for the tort of by plaintiff intrusion into matters. above, As discussed in order on an prevail intrusion-into-private-matters action, intentionally must establish that defendant cause conversation, highly into a or matter a manner intruded place, Shulman, ante, 724—725; (See, offensive to a reasonable person. pp. Shulman, Further, actionable 18 Cal.4th explained prove “[t]o intrusion, zone of must show defendant some penetrated data unwanted access to sensory surrounding, or obtained physical privacy about, the tort if the had an objectively The is plaintiff. proven only plaintiff or of seclusion or in the conversation place, reasonable solitude expectation (18 data source.” Cal.4th at p. the facts that Loftus

The initial is whether asserted demonstrate question conversation, into a or matter to which intruded place, of did a reasonable Loftus’s conduct possessed privacy. alleged expectation home or room entering not involve a such as place hospital her but rather her former foster mother interviewing tapping phone, court (Cantrell), whose Loftus learned from available identity publicly reasonable records. Defendants contend that had no “objectively here, because of or solitude” in the “data source” seclusion expectation facts about was free to sensitive and that she knew Cantrell disclose personal plaintiff. on, cases, contention, of this defendants other rely among

In support First Bank Ore. P.2d v. Interstate 298 706 Humphers 527] [696 Linde. a decision in this area authored Justice Hans (Humphers), leading a In the was a mother who had biological given up Humphers, others, the to for and had not revealed matter adoption generally daughter such records. on state law for confidentiality adoption relying providing and the the was 17 she found daughter years age, sought physician When to The agreed help who had admitted her mother hospital. physician mother, the her the mother’s name find revealed daughter biological prior a false that the indicating the also statement daughter, physician prepared the her that made it for administered medication to mother important the the to locate her mother. statement biological Using provided daughter the sealed medical records the was able obtain daughter physician, was to locate her mother. ultimately biological the and then able adoption, suffer- allegedly mother this biological very upset by development, The was humiliation, embarrassment, distress, to func- inability an emotional ing the estate the action in brought question against tion thereafter normally, interim), on a had died the to recover (who seeking of her former physician action, breach confidence including of causes of one for variety her based the upon physician’s another for offensive intrusion upon privacy, identity daughter. of the mother’s disclosure that, Humphers, facts, In on Court concluded these Oregon Supreme confidence, estate for breach the mother recover could from the physician’s would intrusion. improper but that a of action lie for The cause court in Humphers held that who although legal defendant was under obligation case, not to reveal information—as because physician information was confidential and be held liable for breach privileged—could confidence, when information known one another concerning person is not under the law such rule person by any protected confidentiality, who reveals the information cannot be held for unauthorized person liable intrusion because he or she is under no upon privacy, legal obligation keep Humphers, supra, (See 529-533.) private. information P.2d Humphers, supra, decision P.2d distinguishable from the respect. Humphers, case in present significant intrusion-into-private- matters action was brought who revealed against person (there, and the court’s of a cause of action physician), rejection intrusion on a was based reluctance to define the tort so intrusion expansively as to a liability for information that the impose upon person simply revealing was under no person obligation (See to maintain confidential. specific legal id. 529-530, case, contrast, 532-533.) In the pp. present is not by suing Cantrell—the person who disclosed the information about personal her—but rather is an who a suing utilized investigator allegedly misrepresen tation to obtain information personal concerning from Cantrell. The rationale the underlying court’s of an cause of rejection intrusion action in Humphers does Indeed, not the necessarily court apply present setting. Humphers in was careful to out in its point although opinion “[t]he of a use false medical document to access to the gain [intentional] [mother’s records” well might rise give liability, daughter] medical] “[the here, is not a defendant and the does not she asked allege complaint [the (Humphers, supra, a false letter or knew that it was false.” prepare doctor] 527, 533, 696 P.2d fn. Humphers

Accordingly, although we as and numerous other agree, teach, cases a has no an person right to maintain action for generally intrusion a or improper against relative close friend for voluntarily disclosing another, personal information about him her to or it does not necessarily follow that no violation of a reasonable person’s expectation privacy occurs when a third a party—for example, investigator—obtains private access to the information about from his or her relatives or personal person means, utilizing friends by when such improper unanticipated particularly not information would have been disclosed or friend relative absent the third use of a such means. As matter of there party’s experience, common a is difference one significant between feels when a disappointment secrets, relative or friend reveals one’s and the affront to one’s personal Shulman, supra, 18 Cal. 200, (see and individual personal integrity dignity 732 has

231) with whom one no personal that results when third party, means to obtain access to such uses and unauthorized relationship, improper we out in Sanders v. American information. As pointed personal, (1999) 20 Cal.4th Cal.Rptr.2d Broadcasting Companies [85 tort, is not a (Sanders), P.2d the intrusion “privacy, purposes 67] to societal characteristic. There are and nuances binary, degrees all-or-nothing that the one of our fact recognition privacy: privacy expectations or absolute does not render the in a not given setting complete expects itself, In Sanders we held that unreasonable a matter law.” expectation in an who lacked reasonable of complete privacy employee expectation because could be seen overheard they conversations workplace (but nonetheless could maintain cause general coworkers public) who, into a television against of action for intrusion matters reporter thereafter obtained in workplace pursuit story, employment (20 Cal.4th at numerous conversations. covertly videotaped workplace 914-923.) pp. noted, tort discussing

As already intrusion-into-private-matters Shulman, 200, 230-232, that the California Cal.4th we explained tort drawn heavily upon description decisions this have applying Second of Torts. One of the tort section of the Restatement 652B clear that an action for illustrative section makes examples accompanying be based a defendant’s upon obtaining personal intrusion can properly entity about the from another person by improper means. 4 of comment b section 652B states: “A is seeking Illustration he is B. He bringing goes evidence for use in a civil action against order, account, court and B his exhibits a forged bank in which has personal the records of the account. demands to be allowed examine bank’s to do A has invaded B’s bank submits to the order and him so. permits 378-379; also, Torts, 652B, b, (Rest.2d see pp. e.g., com. § privacy.” 847, the (3d 1936) v. F.2d of cases Zimmermann Wilson Cir. [one “We when we the regard illustration 4 is based: rest on substance which upon ., in . and and wife ... the real interest. parties of Zimmermann his rights the and ... It is the information agents. their bankers brokers as mere contain, the in which that information is bankers’ books and not books recorded, . . this court by injunctive that is the . right protects property the natural here as a violation of relief. . . the search asserted regard . [W]e and in which exists in liberty loving peoples law of one’s own affairs privacy 2001) nations”]; Ins. Co. (Minn.Ct.App. Swarthout v. Mutual Service Life 741, against maintained for intrusion could be 632 N.W.2d 745 [action that, the added names without the insured’s permission, insurance company signed to a medical release form and medical clinic of an additional physician insured, to obtain medical that the altered form and employed Bell sources]; Southwestern Tel. from additional Corcoran v. information those Co. 1978) 572 S.W.2d 215-216 (Mo.Ct.App. intrusion tort [actionable stated where defendant obtained bill from the plaintiff’s phone telephone company by the bill without deception opened plaintiff’s permission].) none Although of cases foregoing involved an instance in which a defendant utilized a or misrepresentation some other means to improper obtain information about a a (rather relative or person from friend than, for from a example, bank or in those cases telephone company), nothing that a suggests forfeits his or person her reasonable expectation privacy affairs or concerns” “private that the intrusion tort was designed protect Torts, (Rest.2d 652B) for by, § example, storing or private papers sharing very information personal with a relative or close friend. Although such an risk, instance the tort, assumes person for intrusion purposes the relative or friend or may betray his her confidence by voluntarily information, disclosing there is no reason to conclude that the does person retain reasonable expectation be privacy may violated when a defendant, third party intentionally engaging unforeseen improper conduct, gains unauthorized and unwanted access to such information from such a relative or friend. Just as the in Sanders v. American Broadcasting Companies, supra, 20 Cal.4th retained a reasonable expec- tation of privacy was violated when his conversations with coemployees in a nonpublic were workplace covertly an videotaped by undercover journal- ist, and as a just person retains reasonable that is expectation privacy defendant, violated when a third party wiretapping conversation phone conversation, surreptitiously an recording in-person gains access information that the has chosen person to share with another person, person retains similarly a reasonable expectation be violated privacy defendant, when a third party by engaging and unforeseen improper conduct, gains access to private information about the person relative or person’s friend. matter, course,

As a general a person’s relatives and close friends are frequently to a privy deal of the great most person’s private personal family secrets—including, example, potentially harmful embarrassing condition, concerning person’s medical sexual person’s orientation, activities and whether the has been person sexual or subjected abuse either physical otherwise, within his or her or and the family person’s youthful indiscretions or Unlike a misbehavior. or person’s appearance activities that (see, occur in a public place e.g., Aisenson v. American (1990) 146, Co. Broadcasting 379]), 162-163 Cal.App.3d Cal.Rptr. [269 and unlike information about a personal that is contained in a person public record to open the inspection by general (Rest.2d as a of law public matter Torts, 652B, c., 379-380; Communications, com. § Gates v. pp. Discovery Inc., 679, supra, 34 692), Cal.4th information about a personal that person to be known happens the by relatives or close person’s friends is not in has the domain. A interest information that entered public person’s the of information—the interest intrusion very the such privacy preserving a to undermined if substantially tort was be designed protect—would to extract or could means whatsoever investigator employ any would-be from a relative or close friend. obtain such information private clear that a reasonable To forth a few extreme it is examples, person’s put be violated if a investigator—who of would expectation privacy private the that was otherwise determined obtain information about private person to home relative close unavailable the into the of a or to investigator—broke the a or other friend of the of target investigation copied diary or, that had the or friend for the left with relative target safekeeping, papers blackmailed, threatened, or alternatively, hypnotized, physically wiretapped, to to obtain information administered a such a relative or friend drug voluntarily the that the friend would not have about relative target v. Salt Lake (See, (10th 1995) 45 County Sheets Cir. F.3d disclosed. e.g., a of the husband had reasonable expectation 1388 [holding his him: “The diary in entries in wife’s that related to fact privacy him having not author the information does not prohibit Mr. Sheets did of written about a distinct interest in the dissemination information privacy of his . . . . . . We find that information conveyed the life. personal aspects [f ] character, or that has observed about one’s to one’s one’s spouse spouse finances, a to be in subject and business nature marriage, personal in of each of those instances Although reasonable expectation privacy”].)18 County, supra, reasonable-expectation-of-privacy Lake 45 F.3d the In Sheets v. Salt against rights in civil filed the husband issue arose the context of federal action county, county of the contents of the defendant based on the disclosure sheriff s office investiga a murder diary wife’s that had been the sheriff in connection with his obtained Sheets, concluded that the husband could maintain an action tion. In the federal circuit court expectation of right privacy, of he a reasonable for violation of his constitutional because diary. personal relating to him contained in his wife’s privacy regard to information right of Although holding upon rested federal constitutional scope Sheets tort, believe the court’s conclusion privacy rather than of the common law intrusion we view, suggest reason before us. In our there is no Sheets nonetheless is relevant the issue protected by the scope expectation privacy reasonable that is that the of an individual’s scope less than of the reasonable intrusion-into-privacy law tort is extensive common qualifies protection constitutional under the federal Constitution. privacy for expectation remedy highly developed provide for offensive The common law intrusion tort was Prosser, (see Privacy go generally upon that otherwise would unredressed privacy intrusions reason, and, 383, 389-392), logic law as a common 48 Cal. L.Rev. matter necessarily do upon privacy that rise remedy properly apply should to intrusions our the decision in Sheets Accordingly, view level of federal constitutional violation. that, general proposition purposes for providing support can be properly seen tort, privacy personal informa- may possess expectation a reasonable person intrusion person’s close or friends—a reasonable about her that is known to relatives tion him or by a is obtained improperly when expectation of be violated such privacy party. third tort be able to his or her own distinct

the relative or friend would pursue cases most investigator, many cause of action against been incurred whose by serious harm or will have damage person misconduct, and the for the intrusive information was target impetus to a and the tort is intended specifically provide intrusion-into-private-matters an of his or her by who has sustained invasion remedy privacy person Wilson, Zimmermann v. (Accord, virtue the misconduct. 81 F.2d of Zimmermann and rights rest on substance when we regard [“We , and his wife ... as the real in interest. . . and their bankers brokers parties contain, and not as mere ... It is the information the bankers’ books agents. recorded, . . the books in which that information is that is the right. property relief’].) this court protects by injunctive Cantrell, case,

In the to Loftus was obtain from present seeking plaintiff’s mother, former both to relating foster information about personal plaintiff which had been of ostensible sexual abuse to plaintiff’s memory plaintiff mother, as a child her the effect asserted subjected plaintiff’s of that on behavior and emotional recovery memory plaintiff’s subsequent of information as to which well-being—certainly type person ordinarily (In would it is reasonable possess expectation privacy. regard, relevant to recall that at the time Cantrell to Loftus about agreed speak matters, these the fact that was the “Jane Doe” referred into Corwin plaintiff article, or, indeed, and Olafson’s 1997 Child Maltreatment the circumstance child, had been not a matter assertedly abused as plaintiff sexually Furthermore, of general or as revealed Loftus’s public knowledge.) declaration, Cantrell, her Loftus was able to obtain through questioning access to undisclosed information previously concerning alleged use her promiscuity drug following Corwin—again, 1995 session the kind of or detrimental infor- very personal potentially embarrassing mation as to which a would reasonable person ordinarily possess expecta- tion of privacy. course, above,

Of unlike some of the scenarios described hypothetical case Loftus did not obtain access to this information present very personal about into Cantrell’s home or her plaintiff by breaking by wiretapping but instead obtained Cantrell. telephone, by questioning Because Corwin to agreed study use case plaintiff permit educational seminars and in an article in a scientific journal—albeit published without name—it well be that could not identifying aca- have had an reasonable that an objectively investigator expectation researcher, Loftus, demic like would not discover her identity pose event, Cantrell matters. In relating any to such probing questions personal because, below, as a matter of law Loftus’s engagement explained simple (see post, in such would constitute offensive” conduct questioning “highly 737-738), have no cause of action under it is clear would pp. 736 if, Loftus,

the intrusion tort to such Cantrell response by freely questioning revealed this information about to Loftus. voluntarily personal plaintiff declaration, however, to Cantrell’s Loftus did not According simply ap- Cantrell with about but instead her proach questions plaintiff, misrepresented (Loftus’s) (a with Corwin with whom had a relationship psychiatrist plaintiff (Loftus) was friendly trusting she professional relationship)—stating Corwin’s associate or order to Cantrell to disclose supervisor—in persuade information about to Loftus. If Loftus in such engaged personal plaintiff behavior, law, we cannot as matter of that such say, questionable unorthodox action constitutes conduct have reasonably should plaintiff Instead, foreseen or we believe a could find that anticipated. jury plaintiff that an would not seek and obtain access to reasonably expected investigator by falsely such information about her from a relative or friend personal as an associate or a mental health in whom posing supervisor professional had plaintiff confided. Broadcasting Sanders v. American As we Companies, supra, explained 907, 918, tort[,] 20 Cal.4th of the intrusion must be “[pjrivacy, purposes evaluated with intruder and the nature of identity alleged respect account, the intrusion.” those factors into we believe that a Taking jury if, asserts, could find that as Cantrell Loftus obtained reasonably private, information about herself to Cantrell as personal plaintiff misrepresenting or Corwin’s associate Loftus’s conduct violated reason- supervisor, plaintiff’s Sanders, (Accord, able at 20 Cal.4th expectation privacy. ... the reasonableness of a must be assessed privacy expectation

[“Because in reference to the of the intruder and the nature of the claimed identity intrusion, indeed, was, decide whether for the proper question jury could he would not be his plaintiff reasonably expect secretly videotaped media”].)19 internal interactions mass workplace representative argument, suggested alleged At oral defendants’ counsel that Loftus’s conduct should not plaintiff’s expectation privacy particular under the be viewed as violation reasonable case, assertedly “estranged” at the time plaintiff facts because was from Cantrell Loftus First, argument interviewed for a Cantrell. We believe this lacks merit number of reasons. although longer residing left home plaintiff record indicates that Cantrell’s and no establish, Cantrell, certainly approached with her the time Loftus the record does not as a law, estranged reasonably matter of that Cantrell felt so at that time that expectation respect privacy regard could have no that Cantrell would her to information concerning allegedly the childhood sexual abuse sustained hands of her, contrary, approached mother. On the declaration that at the time Loftus Cantrell’s states very respecting plaintiff’s privacy Cantrell was much concerned with and would not have relating life had known plaintiff’s personal disclosed to Loftus information Cantrell Thus, matter, Loftus was not associated with Corwin. as a factual this contention cannot be sustained. Second, jury diminished plaintiff’s separation even if a were to find that from Cantrell voluntarily expectation that Cantrell would not disclose informa- reasonable could determine a trier of fact properly remains whether question conduct” that offensive “highly here at issue constituted conduct alleged whether, matter of such as a policy, the basis for tort liability,

can be law, considered, for not offensive highly as a matter of conduct should be intrusion tort. purposes 200, Shulman, 18 Cal.4th supra, discussing general subject ‘“

236-237, . . the use of “routine . reporting our decision explained ’ with information (‘including asking such as questions people techniques,” ever, information’) if be rarely, could those with confidential or restricted 237; (Shulman, supra, an intrusion.” 18 Cal.4th p. deemed actionable Co. accord, Daily Publishing Mail 443 U.S. 103 e.g., Smith v. right First Amendment protects L.Ed.2d S.Ct. 2667] [the [61 tech to obtain information “routine using newspaper reporting journalists we observed in Shulman time, “violation At the same niques”].) into a areas of or legal sensory privacy—trespass well-established physical ever, line, if rarely, home or a telephone example—could tapping personal Between these a need to by get story. be justified reporter’s ...[][] (Shulman, Cal.4th at supra, extremes lie difficult cases . . . .” noted, Loftus at in the case the conduct of investigative As already present of a who information issue consisted of asking questions person possessed her rather than into home or concerning intruding tapping plaintiff plaintiff’s Shulman, 200, 237, As the 18 Cal.4th quoted phone. passage above, clear, under makes Loftus would not be subject liability to Cantrell— concerning intrusion tort if she simply posed questions plaintiff relating even into matters highly plaintiff—and questions probing personal seen, we have how- Cantrell had such information. As voluntarily provided ever, not about Cantrell’s declaration asserts that Loftus did simply inquire (Loftus’s) but with Corwin— rather plaintiff misrepresented relationship order to sensitive she was Corwin’s associate or obtain stating supervisor—in Loftus, noted, as we have emphatically information concerning plaintiff. in view of the such but making any misrepresentation, procedural denies whether, a were if determining only jury of this case we are limited to posture others, conduct jury follow that a could not find Loftus’s tion about her to it not would above, even if expectation privacy. explained As nonetheless violated reasonable voluntarily that Cantrell would not expectation could not have had a reasonable plaintiff information, reasonably expect that an could jury such could find disclose improperly unorthodox and engage in the investigator—like unrelated Loftus—would about her intention- persuading personal Cantrell to reveal intrusive conduct (a and to psychiatrist trusted ally misrepresenting herself as an associate of Corwin memories of the sexual abuse already disclosed information related to her whom had child). ostensibly suffered she Cantrell, to find that Loftus made such a tort misrepresentation liability could be on Loftus for intrusion on imposed improper plaintiff’s privacy.

An amicus curiae brief filed in this court on behalf of a number of news media entities and organizations cautions a cause of action against permitting for intrusion to be based on solely uncorroborated allegations—made by “source” interviewed or other assert the reporter investigator—that obtained information from reporter investigator the source through misrep resentation. The amicus curiae brief that in argues instances in which a many utilizes information obtained from a source reporter to write an article that with, claim, fact, the source the source ultimately after the unhappy that the obtain the information reporter—to disclosed the article—failed to motives, be in forthright his or her disclosing or of view to the position, point source.20The brief that maintains a about whom unflatter permitting subject ing information has been obtained from a third source to sue the party or for offensive intrusion into the reporter investigator on subject’s privacy the basis of such a claim of misrepresentation would have an undesirable effect on the chilling gathering of publication material.21 newsworthy The amicus curiae brief to a number of points cases that have a rejected cause of action for intrusion based on information revealed a third party, even in circumstances which the a that or plaintiff alleged reporter some of investigator sort fraud or to obtain the informa employed subterfuge (See, tion. Desnick v. American e.g., (7th Inc. Cir. Broadcasting Companies, 1345, 1351-1355; 1995) 44 F.3d v. (C.D.Cal. 1982) Esquire Publ’g Rifkin 1982 U.S.Dist. Lexis The concerns raised the amicus curiae brief reasonable and appear quite clearly demonstrate the danger inadvisability of a broad rule adopting under which of a any or type misrepresentation by reporter, investigator, scholar to obtain information would be considered sufficient to a support cause of action for intrusion into matters. private time, however,

At the same we believe it is to recognize important that there are at least some that are of an types such misrepresentations and offensive nature—and are especially egregious quite distinguishable 20 regard: The amicus curiae brief subject unflattering states in this “When the of an or report complains critical news to a source of report allegedly information for that who revealed private injurious or a reporter, belatedly information to it creates a motive for the to source contend that reporter by misrepresentation; reporter the obtained the that the information ‘off-the-record’; agreed to treat the information as misquoted; the source was the context; engaged source’s statement taken out of reporter alleged or the in some other misconduct the procure information.” reporter’s a the perspective, decision below renders a conversation between a “[F]rom reporter any might and a source a veritable minefield reporter from which be wise to withdraw.” news—that be may employed gathering of ruses ordinarily

the types for of the be “beyond purposes considered pale” they properly tort, is to friends or relatives even when the made intrusion misrepresentation not to an are under no reveal legal obligation who subject inquiry consider an For inquiry. example, information about the subject investigative reporter an or ambitious overly instance in which unscrupulous (or official discovering whether investigator, public or interested is talcing specific has a medical condition or other any person) particular child, medication, or close friend of makes a call to a adult spouse, telephone official, room or emergency paramedic, be an pretends physician information the relative or friend to disclose medical ostensibly asks official’s though (1) right in the treatment of the official. Even public assist limited information in question, is many respects, privacy “newsworthy” the official’s well be might because of considered position, no (3) the relative or friend be under might legal publication purposes, confidential, we believe obligation keep jury reasonably could find that offensive” to a type “highly misrepresentation reasonable and that had an subject “objectively person inquiry . . data reasonable of seclusion or solitude in the . source” expectation (Shulman, 232) investigator’s that was Cal.4th violated of such a tactic to information from a relative friend use obtain private would not have the information but nature of divulged flagrant who for the misrepresentation. course, case, is at issue in not alleged misrepresentation present as described but the egregious foregoing example, in hypothetical is of a serious

asserted nonetheless misrepresentation question particularly and offensive nature that does share a number of the troubling potentially noted, of that Cantrell’s states that As declaration Loftus aspects hypothetical. herself with—indeed even the of— as associated misrepresented supervisor Corwin, a in whom Cantrell knew had confided with psychiatrist had an friendly whom Cantrell ongoing, professional relationship. declaration led states in her that Loftus’s asserted Cantrell misrepresentation that Loftus confidentiality” to believe “was bound respect [plaintiff’s] (Cantrell) have to be interviewed by that she “never would consented if her true and focus and she identity disclosed [that [Loftus] [Loftus] (Cantrell)] have said about without full nothing [plaintiff] [plaintiff’s] would Loftus’s discloses that in voluntary consent.” And declaration knowing Cantrell, the course of her with Cantrell revealed number of interview who cared figure matters highly regarding plaintiff parental child’s would be to disclose ordinarily about her foster welfare expected 1995, shortly recovering that in after stranger—for apparently example, abuse, memories of her childhood sexual “started sleeping and doing drugs.” boys view,

In our intentionally oneself as an misrepresenting associate or of a mental health colleague who professional has a close relation personal with the about whom one ship person is seeking information would be a serious particularly type misrepresentation, one different significantly from the more familiar of a news practice or reporter investigator shading or withholding information regarding his or her motives when interviewing news source. potential Special legal protection provided communicated in the course of a physician-patient psychotherapist-patient Code, (Evid. relationship 1014), and even if plaintiff’s §§ relationship with Corwin was not of a nature that would bring information revealed to Corwin within an evidentiary bore privilege, a close similar relationship ity such a relationship. of this nature Misrepresentations either a or an academic undermine reporter could investigator legitimate professional troublesome, and would be relationships especially because would they take of the advantage desire and willingness of relatives and friends to provide assistance to who professionals believe will use they informa any personal tion that is revealed to of the help subject inquiry.

Because of considerations, these and unusual special we believe that if a trier of fact were to find that Loftus in the engaged particular type Cantrell, misrepresentations alleged by the conduct could be properly found offensive” “highly of the purposes tort and intrusion-into-private-matters could be liability Loftus.22 imposed upon

Thus, we conclude that in light of nature of the particular misrepresen- declaration, tation attributed to Loftus Cantrell the Court of Appeal Shulman, 200, 236-237, supra, 18 Cal.4th discussing the application media, offensiveness element engaged in the context of activities the news we stated that deciding . . . a reporter’s alleged “[i]n whether intrusion into matters ... is ‘offensive’ and hence privacy, actionable as an invasion of courts must consider the extent to which the was, circumstances, intrusion under the justified by legitimate the gathering motive of the news. Information-collecting techniques may highly that be socially offensive when done for harassment, unprotected purposes reasons—for of prurient blackmail or curiosity, for ex ample—may not be offensive to person a reasonable when employed by journalists pursuit in socially of a or politically important story.” journalistic A number of codes of ethics “surreptitious caution that gathering methods of information” should be avoided when “except open traditional yield methods will not Journalists, information vital to the public.” (Society (1996) of Prof. Code of Ethics 26, 2007]; <http://spj.org/pdf/ethicscode.pdf> of Feb. [as see also Radio-Television Assn., News Directors Code of Ethics of <www.rtnda.org/ethics/coe.html> Prof. Conduct 26, of journalists Feb. [as electronic should 2007] [“Professional ... [][]... H] surreptitious newsgathering techniques only way [u]se . . . if there is no other to obtain significant stories of public importance only and if technique explained the is to the audience”]; Steele, Might Appropriate Deception/Misrepresentation/Hidden When It Be to Use 1, gathering? Cameras in (Feb. News 1995) Poynter Institute Ethics Series 26, <http://www.poynter.org/content/content_view.asp?id=866> of [listing, Feb. as [as 2006]

741 to that sufficient by plaintiff determined the evidence presented properly tort.23 case under the intrusion-into-private-matters establish a facie prima newsgather- deception misrepresentation in necessary to the use of or prerequisites one public be It must of vital ing, profound importance. information obtained is of the “[w]hen levels, interest, prevent profound must revealing great failure’ at the or it ‘system top such as individuals”].) harm to course, case, any misrepresentation to obtain present engaging the denied In of Loftus has (or else), a anyone that even if Loftus made information from Cantrell but defendants assert law, considered, Cantrell, a not be as matter of misrepresentation to Loftus’s actions should offensive, highly light study to of her case in educational plaintiff’s of consent Corwin’s use study use plaintiff’s public a article. if consent to the of her case published seminars and Even however, figure, justify not in itself the use of public rendered her a limited that status would above, issue; misrepresentation purpose” here at even “all particular type of as discussed 254, Internal, figures (see 263 public Cal.Rptr.2d v. Inc. Cal.4th Khawar Globe 19 [79 696]) having protected as are be public 965 P.2d such officials entitled to from investigators inquiries pretending public their to be the conduct into information (Ante, 738-739.) figure’s physician psychiatrist. pp. or at Furthermore, although is in which the it conceivable that there be some circumstances very investigative questionable need for is so vital resort to even the type information that highly person, tactic here could not be found to be offensive to a properly at issue reasonable Here, category. although the we believe it is clear that this case does not fall within that narrow sought that Loftus to obtain was concerning plaintiff additional information from Cantrell that, law, newsworthy, profound overriding public justified a matter there was no need as that, Cantrell, according type potentially stratagem to was particular resort insidious Shulman, (Accord, a utilized case. Cal.4th fact that Loftus in this [“the investigatory reporter may seeking ‘newsworthy’ privilege be material does itself not in activity”].) conclusion, contrary concurring dissenting opinion In reaching a mischaracterizes and, addition, analysis significant point ignores key portion our a a discussion on forth decision in reasonable-expectation-of-privacy element of the intrusion tort set in our Sanders, supra, 20 Cal.4th 907. First, 750-751), (post, dissenting opinion’s suggestion at contrary concurring pp. sought we have above that the about that Loftus to obtain explained information abuse to obtaining relating succeeded in from Cantrell—information to the ostensible sexual subjected a child and to the detrimental effect of which had been mother recovery memory emotional plaintiff’s plaintiff’s subsequent asserted of that on behavior and well-being—is possess which would a reasonable type person of information as to (ante, 735) expectation parental figure and is “that a who cared privacy p. stranger.” ordinarily about her welfare would not to disclose expected foster child’s be (Ante, Although concurring points passage dissenting opinion another conclusion, contrary concurring and opinion suggest passage support our does not dissenting reading. in this separate passage, explaining after the record opinion’s estranged does the claim at the time Loftus support case that Cantrell from Cantrell, jury were separation interviewed we state that “even if to find voluntarily would plaintiff’s expectation Cantrell reasonable that Cantrell diminished others, find jury it not follow that a could not disclose information about her would (Ante, of plaintiff’s expectation privacy.” that Loftus’s conduct nonetheless violated reasonable 736-737, added.) Contrary concurring of the pp. implication first to the fn. italics dissenting indicate we concluded that did not opinion, passage plaintiff does not have

VII above, For the reasons discussed we conclude that the Court of Appeal erred in that holding action should be plaintiff’s permitted go forward with (1) regard Loftus’s statements at the alleged October 2002 conference to Jane relating Doe’s (2) in the position military, Loftus’s disclosure of plaintiff’s initials at the March 2003 deposition, defendants’ alleged action in obtaining information from confidential court records. At the same time, we also conclude that the Court of determined Appeal correctly plaintiff’s action for intrusion into improper matters could proceed based upon claim that Loftus obtained and sensitive personal regarding plaintiff her former foster mother by herself misrepresenting Corwin, as an associate of with psychiatrist whom had a close plaintiff professional relationship.

Finally, we have although determined that defendants’ motion to strike the complaint to the pursuant anti-SLAPP statute was denied properly as to one facet of one of the numerous causes of action in the alleged it is complaint, when the apparent determinations of the Court of and this court Appeal are viewed as a whole that the overwhelming of majority claims should properly have been struck in the trial court under the anti-SLAPP statute. circumstances, Under these and consistent with the fundamental purpose anti-SLAPP statute to minimize of conduct chilling possess a expectation reasonable of privacy in the information Loftus obtained from Cantrell. explained, As we conclude did possess expectation reasonable privacy with regard to deeply personal such information. Second, analyzing tort, the reasonable-expectation-of-privacy prong of the intrusion concurring and dissenting opinion fails to take into recognition account this court’s explicit Sanders, 907, 918, supra, 20 Cal.4th “[p]rivacy purposes for of the intrusion tort must be evaluated respect identity to the alleged intruder and the nature the intrusion.” (Italics Sanders, added.) rejecting In a claim that the trial court had erred in its instructions jury element, on the reasonable-expectation-of-privacy explained we disputed “[t]he merely instructions jury’s focused the inquiry question on the whether it was reasonable for plaintiff to expect, in the particular circumstances of his workplace, that an interaction between coworkers would subject Because, not be to covert videotaping by a producer. television news as we explained, have the reasonableness of a privacy expectation must be assessed in intrusion, reference to the identity of the intruder and the nature proper of the claimed was, indeed, question jury to decide reasonably whether expect could he would secretly not be videotaped in workplace his internal representative interactions (20 added.) mass media.” p. Sanders, Cal.4th at light italics explanation of this clear we entirely believe it is appropriate and governing precedent consistent with to describe the relevant reasonable-expectation-of-privacy question in this case plaintiff reasonably as whether expect investigator could that an would not seek and obtain access to personal information relating to memory “by childhood sexual abuse falsely posing from her foster mother supervisor an associate or professional a mental health in whom confided.” (Ante, In questioning opinion’s analysis point, concurring of this dissenting opinion any omits portion discussion of the relevant of Sanders. free we of the constitutional right speech,

undertaken in furtherance of costs on to award defendants their appeal. conclude that it is appropriate and reversed in the Court of is part rendered judgment Appeal that court further and the is remanded to for affirmed in matter part, costs are awarded their consistent with this Defendants proceedings opinion. on appeal. Chin, J., J.,

Kennard, J., J., and concurred. Werdegar, Corrigan, MORENO, J., Dissenting. majority and Concurring I agree an one: that Nicole Taus has every disagree I except respectfully respect the tort into matters action Elizabeth Loftus for of intrusion against tort), (hereafter alleged the intrusion based on Loftus’s misrepre- sometimes mother, Cantrell, in obtain to Taus’s order to Margie sentations foster below, had no information about Taus. As Taus supposedly private explained would she had ob- reasonable that Cantrell expectation keep Therefore, should able to served about Taus’s behavior Taus not be private. below, also Taus sue Loftus for unlawful intrusion. As extent explained that Cantrell to an who held certain investigator preferred only speak views, could not be called an agreeable preference expectation and the enforcement of that tort law antithetical through privacy, preference to free academic inquiry.

I. As discussed at Taus became a case greater length by majority, plaintiff the recovered of sexual abuse the work study memory through Corwin, Taus Dr. David an interview in which psychiatrist videotaped who sexual disclosed an earlier to recover abuse on appears memory case, confession. described in considerable detail Taus’s videotaped Corwin Doe, albeit to her as Jane in an article preserving anonymity by referring Maltreatment, in the VideotapedDiscovery 1997 issue Child entitled May Child Sexual Abuse: Reportedly Memory Comparison Unrecallable (2 aWith Childhood 11 Years Child Maltreat- Videotaped Interview Before article)). The article (hereafter ment 91 Child Maltreatment printed Corwin Taus the asserted regarding of interviews between transcript revealed the most recovered the article interview memory, on abuse mother inflicted allegedly intimate details sexual Taus’s ante, 693-694.) (See her and reaction to abuse. Taus’s maj. opn., pp. Other related articles in the issue of Child Maltreatment posed followup same “ study, research related to the case ‘whether this including experi- questions ” life, in her better or worse.’ ence has substantial for changes produced ante, (Maj. opn., article, Cantrell, one of the interviews and in the

During same published mother,” interviewed, is referred who to in the article as “foster also was and her disclosed observations of some and intimate highly facts about personal life, condition, Taus’s her her including to her psychological relationship and her her to new home. As Cantrell stated: “When parents, adjustment Jane come approached first our to and live with she had been in family us several homes, homes, foster her dad had group become ill and she had to be placed in, somewhere. This was real traumatic for Jane she first .... When moved was She headstrong. she had come to a where could tragically you not point her tell She have anything. didn’t rules or and wouldn’t regulations succumb herself, Jane had to do any. decided all and no basically everything one what, going was tell her . . . and why, Jane . . . anything anymore just said, suicide, to give . . . she ‘I’m too chicken to commit up, but I want[ed] out, out, want I I I want can’t take it because I just just, don’t know anymore, ” I what to me when was a little continued happened Cantrell that she girl.’ cried, initiated Jane’s in touch back with her mother: “Mother and getting cried, Jane and Jane said ‘It felt so to have her me. I could good hug tell that ” then, it mom.’ my was She then recounted how the grew, but relationship death, after father’s things some “Jane began go wrong. experienced her, things few and for no mother really reason the would upset get really her, life, call, irate and then out walk of her and not just come done, back. And Jane felt like again, something a failure like she had so Jane needed to know that there was she had done.” Cantrell nothing opined during the interview that second video had beneficial: “I seeing been think this been a has beautiful closure.” Loftus,

Elizabeth critical of the idea of psychology professor long recovered did on research this case and co-authored memory, an article of Corwin’s conclusions entitled Who Abused Jane Doe? The skeptical 2002) History Case Single (May/June Skeptical Inquirer Hazards of able, means, 37. Loftus was lawful through to discover Taus was the article, Doe Jane of the Child Maltreatment because Corwin used part first Taus’s name and the where she of her some childhood city spent during at a videotaped interview shown number of Loftus professional meetings. able to contact and interview Taus’s mother and Cantrell. is the It latter interview that is central to cause of Taus’s intrusion action. As Cantrell stated in explained by a declaration Loftus mis- majority, herself at the outset of interview with Dr. working Corwin represented being “his in connection with the study She asked supervisor [Taus].” interview, and as the became audiotape questioning increasingly hostile, Cantrell asked if Loftus worked with Dr. Corwin or “really something effect,” to that broke off the Cantrell interview. asked for the eventually Loftus, declaration, but left was refused and in a audiotape “extremely upset.” denied the above and denied adamantly making representations audiotaping she make clear what declaration does not Cantrell’s Although the interview. Taus, Jane Doe’s declaration states “that about Loftus’s revealed to Loftus after shortly interview of her that apparently foster mother told me during my boys Plaintiff sleeping her memories in started recovering And she night. apparently also out of the house Plaintiff snuck doing drugs. information, but without Based on this left the care of her foster mother.” declaration, at an in her Loftus stated mentioned revealing specifics memory episode, recovered academic conference after supposed of cannot reveal on advice Doe in behavior that I “Jane destructive engaged my attorney.”

II. statute, against The anti-SLAPP lawsuit (strategic public participation) 425.16, the free right Code of Procedure section protects speech Civil “a summary-judgment-like activities engage by making speech-related at an of a stage poses available early litigation potential procedure ante, 714.) at As the majority on such chilling (Maj. opn., p. effect” activities. concludes, Taus’s Loftus falls within the correctly against scope action statute, is the the in that the activity anti-SLAPP activity protected by of free in furtherance of defendant’s exercise of the lawsuit was subject ante, 712.) In order to defeat defendants’ motion (Maj. at speech. opn., p. strike, a of on her Taus must therefore establish probability prevailing “ 425.16, i.e., Proc., (Code (b)(1)), Civ. subd. she ‘must demon complaint § strate the is both sufficient and a sufficient complaint legally supported by of a if the evidence facie facts to sustain favorable prima showing judgment ” Parker, (Wilson submitted the Covert & Chidester credited.’ v. 811, 19, (2002) 733].) 28 P.3d majority Cal.4th Cal.Rptr.2d [123 facie concludes from the facts above that Taus has made a stated prima In order to evaluate showing that Loftus intruded into her tortiously privacy. conclusion, this of the intrusion tort is understanding necessary. precise (1) action for intrusion has two elements: intrusion into “[T]he matter, offensive reasonable conversation or in a manner to a highly place, Productions, 200, 231 (1998) 18 Cal.4th (Shulman v. W Inc. Group person.” element, we (Shulman).) As to the first 955 P.2d Cal.Rptr.2d 469] [74 intrusion, must show have stated: “To actionable prove surrounding, some or sensory privacy defendant zone physical penetrated about, The tort is obtained unwanted access to data proven or plaintiff. or if the had an reasonable seclusion only objectively expectation at italics (Id. data in the source.” p. solitude conversation place, added.) of seclusion”

The determination “an reasonable objectively expectation Shulman, court, on cases relying is contextual. In for example, part related to accorded rooms and similar privacy held that an hospital places, injured right to some an person degree privacy the interior of “ ambulance. is neither the custom nor habit of our society any ‘[I]t member of the at or its media hitch public large a ride representatives ” an ambulance and ogle care an paramedics injured stranger.’ (Shulman, supra, 18 Cal.4th at Also entitled to a degree privacy were “conversations medical conveying regarding patient] [the (Ibid.) base.” We that a hospital acknowledged news cameraman “per- did not intrude into that zone haps, merely being privacy present he where could hear such place conversations unaided ears. But by on placing microphone paramedic’s] person, amplifying recording [the heard, what said she defendants may have listened in on conversations could have parties reasonably expected (Ibid.) to be private.” conclusion, we arriving recognized qualitatively greater “ intrusion covert electronic represented by one recording: ‘While who information risks the his imparts private betrayal of confidence the other a substantial been party, distinction has between the recognized secondhand of the of a repetition contents conversation and its simultaneous dissemina- auditor, tion to an unannounced second whether auditor be a aor person mechanical device. . . . secret the monitoring denies [Citation.] [][] [S]uch an speaker of of to important aspect communication—the privacy right control the the nature and extent of firsthand dissemination of his state- ” (Shulman, 234-235.) ments.’ 18 Cal.4th at pp.

In Sanders v. Broadcasting American Companies 20 Cal.4th 907 [85 909, (Sanders), P.2d Cal.Rptr.2d a television reporter obtained 67] aas employment “telepsychic” conversations covertly videotaped (Id. several coworkers means of a video by small camera located in hat. 920, 921.) One of those sued We pp. coworkers for intrusion. the rejected secluded, notion that because the was not plaintiff’s workplace absolutely the had no of for the expectation privacy. “[P]rivacy, of purposes tort, intrusion is not binary, a characteristic. There are all-or-nothing degrees and nuances to societal of our recognition the fact expectations privacy: that the given one in a is not or privacy expects setting absolute complete does not render the a unreasonable matter law. . . . expectation ‘Like the is The mere “privacy,” “seclusion” relative. fact that a concept person can be seen someone does not mean he automatically or she can ” (Id. be forced to be seen legally subject being everyone.’ to a

Cases involve intrusion into data source are rarer than cases intrusion into or conversations entail involving places obtaining through means information by well-settled improper protected expectations privacy cites three In confidentiality. majority cases. Zimmermann v. Wilson 847, 849, Revenue held that an Internal 1936) court (3d Cir. 81 F.2d duces through record subpoena bank Service search of agent’s plaintiffs’ search, that such information concluding constituted an unreasonable tecum not be that could of the right” be plaintiffs should considered “property of the ones on which case is one invaded without sufficient This justification. Second of b to of the Restatement illustration of comment section 652B he bringing in civil action is is for use seeking Torts is based: “A evidence account, exhibits has B. He to the bank in which B his personal against goes order, the bank’s to be allowed examine court and demands forged him do The bank submits to order permits records of account. Torts, 652B, b, 378-379.) com. (Rest.2d pp. A invaded B’s privacy.” § so. has 2001) Service Ins. Co. (Minn.Ct.App. In Swarthout v. Mutual Life 745, for when an allowed an action intrusion 632 N.W.2d the court to a health care providers insurance added the names additional company insured without latter’s permission, medical release form signed it was not authorized acquire. medical information obtaining thereby 1978) Bell Co. 572 S.W.2d Corcoran v. Southwestern Tel. (Mo.Ct.App. mail, 215-216, in clear diverted and the plaintiffs’ defendant opened son, law, of the in order obtain the address plaintiffs’ violation be the informa- although defendant’s ex-husband. It should emphasized son, it tion the defendant discovered in case pertained plaintiffs’ who not their son. sued invasion plaintiffs privacy, First, law, it following From the above case we can derive the principles: means to insufficient to that a defendant offensive allege prove employed a or order to breach what would like to be secluded in private plaintiff kept intrusion; an a also establish that the maintain action for must plaintiff reasonably that the to remain expects defendant breached zone Shulman, In for or secluded. two are related but distinct. The private inquiries that the hidden bringing the court not have concluded could example, into a reasonable of expectation privacy recorder an ambulance breached and conversations without first that the interior of an ambulance concluding an need the paramedic’s between a of paramedic injured person or seclusion. In degree were entitled to some of privacy services reasonably Sanders, into the may we that hidden cameras brought workplace concluded 923), but that (Sanders, of Cal.4th at supra, p. constitute breach privacy the merely the the is not met “when has first intrusion tort prong recorded, observed, (Id. in public place.” been or even or photographed 914.) p. Second, or is one derived not a reasonable seclusion privacy expectation “ law, . of . . . . . habit but also from well-defined ‘custom

only from [or] ” (Shulman, 18 Cal.4th at supra, society.’ Third, source, to an order maintain intrusion action vis-á-vis a data communications, in a opposed seclusion or in place must law, custom, habit, based on or reasonably that the expect, information source intrusion, but will the information keep in relative the secrecy improper for and that the information itself will remain cases and relatively private. above, Restatement illustration discussed plaintiffs attempted keep it to institutions private entrusting that been assigned role, law, custom, or through agreement, well-developed being guardians information, of confidential such as banks and health care facilities. The breach or other confidentiality through deception may means improper an action for invasion of support privacy. mind,

With these we turn to the principles case. present

III. outset, At the must clear we be that the is not whether Cantrell question had a reasonable that her expectation would be breached an privacy who investigator to reveal got information under false pretenses. The rather is question whether Taus has a reasonable expectation Cantrell’s observations of Taus’s while acting behavior as her foster mother would remain no private. majority cites case proposition reasonable, A has a person B legally protectable will expectation person not reveal C B observations has about we person person A’s life. As person “ Shulman, stated in who information risks the imparts private ‘[O]ne betrayal ” (Shulman, of his confidence . .’ other . . 18 Cal.4th at party 234-235.) An even pp. expectation is less when is privacy reasonable what communicated, issue not information that has been which arise, some implication of confidentiality sometimes but rather disclo sure of observed, observations of a behavior. As one court person’s intrusion tort “was created ... against protect gamering information from third .... Gathering information about parties appellant fraud, from third ‘even if parties, pursued using subterfuge and cannot constitute ... an intmsion solitude seclusion. The upon [appellant’s] Court has found no nor has authority, any, cited which [appellant] suggests ” v. 1213, 1218, (Wolf Regardie (D.C. 1989) contrary.’ 553 A.2d italics omitted; also MacKerron v. Madura see (Me. 1982) 445 A.2d officer’s to obtain letter [police attempt attorney’s client may implicate client, the of the interests but not the privacy attorney].) cites Sheets Lake The County v. Salt (10th Cir. majority 1995) F.3d 1383 (Sheets), in of its of the intmsion tort. In that support proposed expansion case, the and the police gave a of his deceased wife’s requested copy order in to assist the the or diary investigation of murder. of Copies diary who wrote in the hands of several people wound eventually up diary excerpts murder, directly. from the diary about the one of whom quoted books to 42 United States Code favor a verdict the plaintiff’s pursuant upholding over had handed the diary the that the husband section court concluded confidential, as be to an that it would understanding kept with police a detective given by police both assurances of confidentiality evidenced of recording reserved for the “traditionally the fact that the diary purpose been for “given police specific and had private thoughts” (Sheets, 1388.) supra, aiding their investigation.” p. The in that case Sheets does not assist the majority’s position. a be because diary reasonable that the would expectation kept private confidential, between himself and police. enforceable legally relationship Sheets, an had to have been under In order to fit within Cantrell would have information she knew to reveal sensitive obligation confidentiality Loftus, through Taus at the time she met which latter breached about Moreover, Cantrell’s But been obligation alleged. no such has deception. or traditional are not to a other diary observations memory analogous information. repository in- The majority

Lacking majority hypotheticals. precedent, employs or overly us an unscrupulous vites to “consider an instance in which interested in discover- ambitious or investigative private investigator, reporter (or a medical whether a official other has public any person) particular ing medication, a to or is makes a call taking telephone condition specific child, official, emer- adult or close friend of the to be an spouse, pretends or friend to disclose room and asks the relative gency physician paramedic, to in the treatment of the official.” the medical assist ostensibly ante, 739.) The would find actionable intrusion (Maj. opn., p. majority such circumstances. How

The above leaves unanswered a number questions. hypothetical to one have be order for there be reasonable close friend does Does the in the information that the friend privacy possesses? expectation relatives, ones or distant estranged reasonable all even expectation apply if the casual even ones? it would not Presumably apply acquaintance, close Or it to decide how jury means were used. always improper in order for there be reasonable expectation? an must be acquaintance has made to information expectation Does reasonable apply Amendment, we should the First no effort to secret? In cases keep implicating “ case-by- system as within our possible ‘strive for much predictability ” Amendment freedoms.’ lest we chill First adjudication, unwittingly case like (Shulman, 18 Cal.4th at majority’s hypothetical, it answers. raises more than general, opinion questions Nonetheless, that, the be correct at majority may least under some circum- stances, a would be able to sue in the above person situation. It hypothetical case, be the for that a may has a to some example, politician degree of right cabinet, as to the privacy contents of her medicine and has a reasonable that her will expectation those contents confidential. A spouse keep journalist as a medical in a posing doctor confidential with the in relationship politician order trick the revealing into such spouse highly medical informa- personal tion be liable for an intrusion. It is true in arguably that politician a has reasonable that the hypothetical would expectation spouse keep but private journalist’s deception. not But majority does contend Taus had reasonable expectation Cantrell would she what had observed about keep Taus but for Rather, Loftus’s misrepresentation. core rationale for its explaining holding, states that majority because Loftus allegedly engaged misrep- Taus, resentations to obtain information about “we cannot as a matter say, law, that such and unorthodox action questionable constitutes conduct Instead, have plaintiff reasonably should foreseen or we believe a anticipated. plaintiff reasonably expected could jury find that an would investigator seek obtain access to such information about her personal from a relative or by falsely friend as an posing associate or of a mental supervisor ante, health professional whom had confided.” (Maj. opn., omitted, original added.) italics new italics This is underscored point discussion of majority’s whether Taus’s alleged from separation estrangement Cantrell affected the former’s reasonable concludes that expectation privacy. majority it does not: “[Ejven if a were find jury plaintiff’s separation Cantrell volun- diminished reasonable that Cantrell would not expectation tarily others, disclose information about her to it would not follow that a could not find that jury Loftus’s conduct nonetheless violated plaintiff’s could above, reasonable As expectation privacy. explained even if not have had a reasonable expectation that Cantrell would not voluntarily disclose such information, could find that jury could plaintiff reasonably that an unrelated expect investigator—like Loftus—would not in the engage unorthodox and intrusive conduct of improperly persuading Cantrell reveal information about her personal . . by intentionally herself . .” misrepresenting ante, 736-737, (Maj. opn., added.) fn. italics pp. In so concluding, majority confuses the first and second prongs tort. Again, intrusion must both prove intrusion into place, conversation, data he source which or she has a reasonable expectation

751 to of means offensive and highly the occurred use by of intrusion privacy 231.) The majority (Shulman, Cal.4th at supra, p. a 18 reasonable person. concluding by its of seclusion problem solves reasonable expectation offensive would use highly that someone expect Taus would not reasonably means, health of a trusted mental professional, such as an associate as posing offensive means to But that is not enough—highly the information. acquire definition, never reason- will a presumably are unreasonable above, be As discussed employed. that such means would ably expect to obtain the informa- to the of offensive means showing highly addition use tion, that the information a a must also show reasonable expectation for but the employment would have the information kept private source the majority’s court ever come close to adopting those means. No has of a hidden as no to sue right Just a has contrary position. person operator (Sanders, a supra, 914), 20 Cal.4th at so p. camera who films him in public to an who obtains information which has no sue person right investigator with, to even when begin had no reasonable expectation privacy person do means to so. investigator offensive employs or similar such analogizes wiretapping situation to majority present in Sanders v. American intrusions. As it states: “Just the plaintiff Broadcasting retained a reasonable Companies, supra, expec- Cal.4th his with tation of that was violated when conversations privacy coemployees journal- an undercover in a were covertly nonpublic workplace videotaped ist, a that is as a retains reasonable just expectation privacy person defendant, a conversation phone violated when a third party by wiretapping conversation, an access gains or surreptitiously recording in-person a share another information that the has chosen to with person person, person be a violated similarly expectation retains reasonable privacy defendant, and unforeseen when third engaging improper party conduct, about gains access to person ante, (Maj. relative or friend.” person’s opn., p. surreptitious recording

Yet courts held that or wiretapping have although recorded, those because conversations violates the rights wiretapped Shulman, (see of privacy such intrusions violate well-defined expectations Court & Tel. Co. v. Superior 233; Tel. 18 Cal.4th Pacific 161, 168, 854]), neither Taus nor fn. 8 465 P.2d Cal.Rptr. Cal.3d [84 during those mentioned these allow extending holdings cites a case majority assuming to sue invasion of Even right such conversations privacy. circumstances, nothing under limited right a court would such recognize who not a party would allow case law that courts suggests or she had a reasonable that he showing dispense conversation that the information revealed about him or her would expectation remain private.

Moreover, extent those mentioned in a or a wiretap surreptitiously recorded conversation have a of action for may right any intrusion without of, right further that would be derivative or a showing, foreseeable essentially of, clear invasion of the or consequence those privacy wiretapped recorded. But it constitute or while fraud some other misrepresentation, may action, tortious does not amount to an intrusion into necessarily privacy Indeed, are those who objects misrepresentation. recognized we Sanders, distinction between covert very recording in misrepresentation Time, in which we court’s quoted approval language Dietemann v. (9th 1971) Inc. Cir. (Dietemann), 449 F.2d 245 wherein for a news reporters magazine gained access to a deceitfully doctor’s home office and quack “ and recorded his secretly photographed examination of one of them: ‘One who invites another to his home or office a risk takes that the visitor not may seems, be he what and that the all may visitor he hears and repeat observes he when he leaves. But does not should be to take the risk required that what is heard and seen will be transmitted or recording, photograph world, or in our modem in full color and hi-fi at living public (Sanders, Dietemann, large ....’” at supra, 20 Cal.4th quoting 249.) at p.

Thus, Sanders and Dietemann stand for that when A proposition person source, has no in a or expectation privacy conversation data the fact that B access to such person gains conversation or data source false through Rather, does not B pretenses by itself make liable for is intrusion. what decisive those is the cases unremarkable conclusion filming that secretly office, ain secluded relatively or people workplace thereby potentially them to the exposing public large, intrusion their greater upon privacy them, than that covertly observing the former be an actionable invasion of even privacy when the latter is not. Contrary to majority’s 741-742, (see ante, implication, maj. opn., 23), fn. never pp. remotely we that if suggested Sanders information to someone person simply imparts seems,” she invited has into her home is “not who what he and who does not conversation, record the then a relative of the could secretly sue even person if the relative had no reasonable the information would be expectation kept private. is, then did Taus have reasonable that Cantrell question expectation

would have the information revealed to Loftus about kept but for private, Loftus’s deception? we must consider not answering question simply whether, abstract, a reasonable expectation a child would have in the ante, (see information private maj. opn., a certain keep would type

parent 741-742, whether, under the circumstances 23), fn. but rather particular at pp. case, Cantrell’s information expectation of this Taus had a reasonable not, did for several reasons. be I would conclude she private. would kept Doe First, the Jane directly pertinent information Loftus obtained controversy. had central to the recovered memory case become study Indeed, noted, in which Corwin’s issue of Child Maltreatment same whether the recovered as a research followup question, article appeared posed life, for a substantial memory change incident had “produced [Taus’s] Commentary 1997) 2 Child Mistreatment (Putnam, (May worse.” better agreed “Because acknowledge: As the majority an article case seminars and in Corwin to use her educational study permit identifying plaintiff by in a scientific without journal—albeit published had objectively be that could not have an may name—it well researcher, like investigator reasonable that an academic expectation Loftus, not to would discover her and identity pose probing questions ante, Cantrell to such matters.” relating (Maj. opn., personal Moreover, have Cantrell would not speak Taus although hoped behavior, than about her observations about Taus’s she other Corwin people she an reasonable that objectively fails demonstrate that had expectation so. had no to so legal obligation Cantrell would refrain from Cantrell doing is there custom or habit that would dictate refrain. Nor well-established any behavior to that foster mother should not talk about a former foster child’s others, friends, relatives, Moreover, and at issue neighbors. example, not conversations between Taus and Cantrell in which some expecta- inferred, Nor, be Taus’s given tion but behavior. confidentiality may did Taus controversy, fact that Taus’s case was at the center of an academic to talk to a bona fide have a reasonable that Cantrell would refuse expectation about effect making academic researcher reasonable inquiries does Taus broke off foster parent- recovered Nor the fact that memory. an that Cantrell would keep child in favor of relationship weigh expectation Taus’s behavior private.

Furthermore, we not from the or from complaint do know and to what in to the anti-SLAPP motion whether declarations opposition to others. And because extent Cantrell had disclosed already behavior, the seclu- in was not confined to the information Taus’s question, home, was already we no whether it way knowing sion Cantrell’s have Also, do in Cantrell’s revelations Loftus community. known generally revealed in the Child much than what Cantrell had go already further article, and that Taus was rebellious Maltreatment when she told Corwin troubled teenager who was and who have “tragically headstrong” “didn’t rules or and wouldn’t succumb to and who suicide regulations any,” spoke How could Taus have a enforceable giving up. legally expectation Cantrell would information if it already was known? keep private generally And even if Cantrell could had quiet, how Taus have a reasonable kept that the information would not be expectation revealed another source? can it be some argued local is different Perhaps spreading gossip academic talking an researcher who would disseminate the information to audience, a wider academic that Taus that Cantrell would make expected distinction act But there are at two accordingly. least problems First, discussed, there is law argument. in or custom that nothing would dictate that Cantrell would to talk legitimate refuse to a academic Taus, about investigator fact that Taus’s life at the given personal Second, center of an academic controversy. Loftus was fact discreet very about the information obtained. did she She not reveal identity, Taus’s did not disclose fact that Cantrell said she had engaged promiscuous behavior and drug use until after the litigation had commenced. Loftus mentioned anat academic conference that “Jane only Doe” engaged “destructive unspecified behavior” after recovered memory supposed Sanders, incident. Unlike fake with the camera employee hidden Loftus was not a hidden masking purpose filming ultimately publiciz- ing information. she Although is to have alleged misrepresented Corwin, association with did she not misrepresent her status as an academic researcher bound by protocols confidentiality.

It be that have may Taus would that not Cantrell reveal preferred because, Corwin, further intimate details of her life to Loftus unlike to, unlike the friends or that Cantrell have Taus neighbors might spoken Loftus as perceived threatening because she was Taus contesting claims that fact, had been sexually abused. In it is this fairly apparent that impetus litigation is Loftus’s investigative but her adver- techniques perceived and, sarial stance toward Corwin Taus. But derivatively, by any toward sense, the to an ordinary desire information on the deny investigator based cannot be an investigator’s called or viewpoint expectation privacy seclusion, and the enforcement of Taus’s is preference through tort law contrary to free academic and the First inquiry Amendment. course,

Of Cantrell had an herself interest in not deceived. If she being revealed information would she not have otherwise disclosed but for the and if such disclosure caused she misrepresentation, tangible some injury, fraud, distress, action might have an for intentional infliction of emotional here, some other tort. But Cantrell is not the beyond and this issue is case. Nor do we consider whether would if scope Loftus be liable is The to the latter to reveal information. get question she had lied to Taus Cantrell would keep private a reasonable that whether Taus had expectation based on the present about her. The answer certain information personal therefore matters is did not. Her tort for intrusion into private record that she fail, alleged if in the engaged misrepresentations should even Loftus to that Cantrell obtain information.

IV. kind of The desire to from the majority’s protect society misrepresentations understandable, case and it be argued is alleged present But this kind the truth. could avoid intrusion suits of by simply telling person made vigorously having any misrepresentations. of course Loftus denies investigators we academics and other subject real is whether should question obtaining on the means of right allegations suits based privacy information a third when the information party unscrupulous, to be obtained itself not an individual can something reasonably expect kept private. be rigor-

To insist that reasonable expectation requirement privacy correctness, but doctrinal adhered to is not a matter formal ously simply Permitting serves enforce an constitutional and important policy principle. will chill vigorous suits do not meet likely journalistic requirement nature of investigation relationship because inherently problematic on between sources. amicus curiae brief filed journalists their news As an left behalf of various news “The media . . . will be states: organizations vulnerable to intrusion claims from news source’s belated arising attempt distance from the he by asserting himself information disclosed media in some to obtain Sources who sort of it. engaged misrepresentation take after the fact voluntarily media often issue provide Indeed, when the with some of what the media ultimately reported. aspect an or critical news source subject unflattering complains report allegedly injurious information for who revealed or report belatedly creates a for the source to information to it motive reporter, contend that the the information by misrepresentation,” obtained reporter investiga- other means. The occur in academic dynamic same improper may correct tions. While the media not be organizations journalists alleged suits based on should a blanket all such enjoy immunity sources, least, third at the no suit very news misrepresentations party reasonable be when the has not demonstrated a should allowed be but for that the information in would kept private expectation question misrepresentations. stake,

Given the important interests and the fact the significant tort expansion intrusion found in the can majority opinion correspond- ingly freedom, diminish academic and journalistic we should undertake such Here, expansion only with the greatest care. Taus has demonstrated no reasonable expectation information revealed to Cantrell would be but for the kept private misrepresentation. Taus’s cause action for intrusion should therefore be stricken to Code of pursuant Civil Procedure section 425.16, which was intended to weed out specifically such unmeritorious suits on free impinging speech inquiry.

I therefore respectfully dissent.

Baxter, J., concurred.

Case Details

Case Name: Taus v. Loftus

Court Name: California Supreme Court

Date Published: Feb 26, 2007

Citation: 54 Cal. Rptr. 3d 775

Docket Number: S133805

Court Abbreviation: Cal.