Barbee v. Hafc

• Decision Date: 20 November 2003
• Docket Number: No. D040421,D040421
• Citation: 113 Cal.App.4th 525,6 Cal.Rptr.3d 406
• Parties: Robert BARBEE, Plaintiff and Appellant, v. HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

6 Cal.Rptr.3d 406

113 Cal.App.4th 525

Robert BARBEE, Plaintiff and Appellant, v. HOUSEHOLD AUTOMOTIVE FINANCE CORPORATION, Defendant and Respondent.

No. D040421

Court of Appeal, Fourth District, Division One

November 20, 2003

Strauss & Asher, David P. Strauss and Mark A. Bennett, San Diego, for Plaintiff and Appellant.

Heller Ehrman White & McAuliffe, Robert W. Bell, Jr. and Erin Downey Booth, San Diego, for Defendant and Respondent.

AARON, J.

I. INTRODUCTION

Appellant Robert Barbee appeals from a summary judgment order entered in favor of defendant Household Automotive Finance Corporation (HAFC). Barbee contends the trial court erred in concluding that HAFC's termination of his employment for dating a subordinate neither invaded his right to privacy guaranteed by article I, section 1 of the California Constitution nor violated the public policy expressed in Labor Code section 96, subdivision (k). We affirm the judgment.

II. FACTUAL AND PROCEDURAL BACKGROUND

Barbee was the national sales manager for HAFC and was responsible for leading HAFC's entire sales force. In October 2000, Barbee began dating Melanie Tomita, a member of HAFC's sales force. The chief executive officer of HAFC, John Vella, became aware of rumors that Barbee was dating someone within the sales force. During December 2000, Vella informed Barbee that "intercompany dating was a bad idea."

HAFC has a conflict of interest policy that provides in relevant part: "Situations of relationships between employees may ... cause a conflict of interest. If a consensual intimate relationship between a supervisor and any employee within that supervisor's direct or indirect area of responsibility is desired, it is the supervisor's responsibility to bring this to management's attention for appropriate action (i.e., possible reassignment to avoid a conflict of interest)."

In March 2001, Barbee met with Vella and Pat Boney, HAFC's national director of human resources. Barbee was asked about the nature of his relationship with Tomita. Barbee replied that he had a "special relationship" with her and that they were very good friends. Boney told Barbee that such a relationship created a potential conflict of interest and that Barbee would have to end the relationship or, in the alternative, either Barbee or Tomita could resign. Boney said that he would let Barbee consider his options over the weekend.

The following Monday Barbee informed Vella and Boney that both he and Tomita wanted to stay with HAFC. Barbee conceded that based on this conversation, Vella and Boney "probably assumed" he was agreeing to end his relationship with Tomita. Not long after that meeting, an HAFC customer called Barbee and offered him tickets to the National Collegiate Athletic Association regional semi-final and final basketball games. Barbee asked Tomita's fellow sales representative, who was at the customer's office at the time, to pick up the tickets for him. Barbee attended the games with Tomita. Boney and Vella later asked Barbee whether he had attended the games with Tomita, and Barbee admitted that he had. Soon thereafter, Vella and Boney terminated Barbee's employment.

Barbee filed this action alleging invasion of privacy, wrongful termination in violation of public policy, and sex discrimination. HAFC moved for summary judgment as to the entire action or, in the alternative, summary adjudication on each of the three causes of action. Barbee opposed HAFC's motion as to the invasion of privacy and wrongful termination causes of action. The trial court granted HAFC's motion for summary judgment and entered judgment in favor of HAFC. Barbee timely appealed.¹

III. DISCUSSION

A. Standard of Review

Pursuant to Code of Civil Procedure section 437c, subdivision (c), summary judgment is proper where the papers submitted demonstrate that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal, our review is de novo. (Thunderburk v. United Food & Commercial Workers' Union (2001) 92 Cal.App.4th 1332, 1337, 112 Cal.Rptr.2d 609.)

B. HAFC's Termination of Barbee's Employment did not Invade his Right to Privacy Under Article I, Section 1 of the California Constitution

Barbee claims that HAFC's termination of his employment based on his relationship with Tomita violated his right to privacy under article I, section 1 of the California Constitution.

Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." (Italics added.)

"[A]rticle I, section 1 of the California Constitution creates a right of action against private as well as government entities." (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15-20, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill).) "The constitutional provision is self-executing; hence, it confers a judicial right of action on all Californians. [Citations.] Privacy is protected not merely against state action; it is considered an inalienable right which may not be violated by anyone." (Id. at p. 18, 26 Cal.Rptr.2d 834, 865 P.2d 633, quoting Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829, 134 Cal.Rptr. 839.)

"[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy." (Hill, supra, 7 Cal.4th at pp. 39-40, 26 Cal.Rptr.2d 834, 865 P.2d 633.)

1. A Legally Protected Privacy Interest

Barbee argues that he has a legally protected privacy interest in pursuing an "intimate relationship[ ]." By using the phrase intimate relationship, and arguing that his right to privacy under article I, section 1 protects the "sexual lives of the unmarried" (Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 800, 76 Cal.Rptr.2d 727), Barbee appears to contend that he has a legally protected privacy interest in pursuing a sexual relationship with Tomita.

Barbee has not cited, and we have not found, any California cases that have directly addressed whether a person has a privacy interest in pursuing an intimate relationship under the state constitutional right to privacy. The cases on which Barbee relies involve primarily the right to be free from intrusive questioning regarding one's sexual activities. (See Roman Catholic Bishop v. Superior Court (1996) 42 Cal.App.4th 1556, 1567, 50 Cal.Rptr.2d 399; Barrenda L. v. Superior Court, supra, 65 Cal.App.4th at p. 800, 76 Cal.Rptr.2d 727.) None stand for the proposition that individuals have a legally protected privacy interest in pursuing sexual relationships pursuant to the state constitutional right to privacy.

In Lawrence v. Texas (2003), 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (Lawrence), the United States Supreme Court held that a statute that prohibited sodomy between persons of the same sex violated the due process clause of the United States Constitution. The court expressly stated that a prohibition on sodomy that applied to both same-sex and different sex participants would also be invalid. (Id. at p. 2482.) The Lawrence court also wrote that the statute at issue in that case was unconstitutional because, "the State cannot demean [the petitioners'] existence or control their destiny by making their private sexual conduct a crime." (Id. at p. 2484.) In reaching its holding, the Lawrence court stated: "`[I]ndividual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of "liberty" protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons.'" (Lawrence, supra, 539 U.S. at p. 578, 123 S.Ct. at pp. 2483-2484, quoting Bowers v. Hardwick (1986) 478 U.S. 186, 216, 106 S.Ct. 2841, 92 L.Ed.2d 140, [Stevens, J., dissenting], footnotes and citations omitted.)

The "state constitutional right [to privacy] provides protection that is distinct from, and in some respects greater than, that provided by the federal Constitution...." (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 630, 42 Cal.Rptr.2d 50, 896 P.2d 776.) Accordingly, in the wake of Lawrence, Barbee may have a legally protected privacy interest in pursuing an intimate or sexual relationship, guaranteed by article I, section 1 of the California Constitution. However, although we make this assumption for purposes of the analysis of this case, we need not resolve this issue because, as discussed below, Barbee cannot establish the second necessary element of his invasion of privacy claim that he had a reasonable expectation of privacy in the circumstances of this case.

2. A Reasonable Expectation of Privacy in the Circumstances

Barbee argues that he had a "reasonable expectation of privacy in his relationship with Tomita."

"`The extent of [a privacy] interest is not independent of the circumstances.' [Citation.] Even when a legally cognizable privacy interest is present, other factors may affect a person's reasonable expectation of privacy. For example, advance notice of an impending action may serve to `"limit [an] intrusion upon personal dignity and security"' that would otherwise be regarded as serious. [Citation.] In addition, customs, practices, and physical settings surrounding particular activities may create or inhibit reasonable expectations of privacy. [Citations.] A `reasonable' expectation of privacy is an objective entitlement founded on broadly based and widely accepted community norms. [Citation.]" (Hill, supra, 7 Cal.4th at pp. 36-37, 865 P.2d 633, 26...