holding that 25 allowing a friend to listen in on a phone conversation via an extension created liability 26 under CIPA
How later courts described this case
- holding that 25 allowing a friend to listen in on a phone conversation via an extension created liability 26 under CIPA
- “In enacting 24 [CIPA], the Legislature declared in broad terms its intent to protect the right of privacy of the people 25 of this state from what it perceived as a serious threat to the free exercise of personal liberties that 26 27 1 The parties have agreed that portions of Wald’s deposition testimony in which he explains 1 cannot be tolerated in a free and civilized society. This philosophy appears to lie at the heart of 2 virtually all the decisions construing the Privacy Act.”
- “It appears no case has ever considered the applicability of [the litigation privilege] to statutory causes of action. However, the purpose of the judicial proceedings privilege seems no less relevant to such claims.... [N]othing indicates that in enacting Penal Code section 637.2 the Legislature intended to immunize causes of action under that statute from the traditional privileges applicable to various forms of oral evidence”
- wife’s friend listening in on wife’s conversation with her former 1 husband (Ribas) at wife’s invitation was eavesdropper under CIPA § 631
Written by the judges who cited it.
The opinion
KAUS, J., Concurring and Dissenting.
I concur in the judgment. I agree that the complaint alleges a violation of Penal Code section 631, subdivision (a), since it does not show on its face that the tariff exception of subsection (2) of subdivision (b) is applicable. I do not agree, however, with the majority’s discussion indicating that even if nothing in the tariff in effect at that time prohibited eavesdropping by use of an extension phone, subdivision (a) still applied. I fail to see how a tariff’s silence concerning a particular use of an extension phone can turn such use into one which is not “pursuant *366 to the tariff.” Moreover, if silence as well as express prohibition violate the tariff, it is hard to divine a rational legislative purpose for the tariff exception. 1
The leading law review article on the scope of the Invasion of Privacy Act—cited several times by the majority—indicates that the majority errs in reading subdivision (b)(2) as if it did not exist; “At present, the tariffs of the Pacific Telephone and Telegraph Company place no restrictions on the use of ordinary extension telephones. Thus under this exception one party seemingly can permit a third person to listen in on a conversation on an extension, a clear contradiction of the intent of section 631(a).” (Comment, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1205-1206.) 2
Indeed, even if there were some ambiguity in the application of the tariff exemption in this setting, the majority’s interpretation ignores the fact that we are construing a penal statute. Although in this case defendant faces only civil damages, under the majority’s reading of the statute defendant would have committed a crime even if her conduct violated no tariff. 3
In short, since the complaint does not specifically allege that the eavesdropping was accomplished by the use of equipment furnished and used according to a public utility’s tariff, the complaint does state a cause of action for a violation of section 631. If it should turn out, however, that the extension in question was furnished and used in a manner consistent with the applicable tariffs, the action should fail.
Broussard, J., and Lucas, J., concurred.
The majority suggests that it was designed to apply to the use of recording and monitoring equipment. I respectfully suggest that this purpose is served by subdivision (e)(2) of section 632.
The fact that today a tariff may prohibit eavesdropping by extension is, of course, immaterial.
I find no support for the majority’s suggestion at footnote 4 that there would be no liability as between parents and their children for violations of the Invasion of Privacy Act and even less for the further suggestion that, in any event, the prohibitions of the act do not apply to children at all. Nowhere in this act, which provides for criminal sanctions as well as a civil cause of action for damages, is there any special rule for minors. (See Pen. Code, § 26.)