Deteresa v. American Broadcasting Companies, Inc.
| Decision Date | 29 July 1997 |
| Docket Number | No. 95-56748,95-56748 |
| Citation | 121 F.3d 460 |
| Parties | 25 Media L. Rep. 2038, 97 Cal. Daily Op. Serv. 5985, 97 Daily Journal D.A.R. 9625 Beverly DETERESA, Plaintiff-Appellant, v. AMERICAN BROADCASTING COMPANIES, INC.; Anthony Radziwill, aka Anthony Radziwell, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Neville L. Johnson, Neville L. Johnson & Associates, Los Angeles, CA, for plaintiff-appellant Beverly Deteresa.
Steven M. Perry, Munger, Tolles & Olson, Los Angeles, CA, for defendants-appellees American Broadcasting Companies, Inc. and Anthony Radziwill.
Appeal from the United States District Court for the Central District of California; Linda H. McLaughlin, District Judge, Presiding. D.C. No. CV-95-00528-LHM.
Before: O'SCANNLAIN and TASHIMA, Circuit Judges; WHALEY, * District Judge.
Opinion by Judge O'SCANNLAIN; Partial Concurrence and Partial Dissent by Judge WHALEY.
We must decide whether a television producer violated laws against eavesdropping when he surreptitiously taped his conversation with a woman who refused to appear on his show.
On June 12, 1994, Nicole Brown Simpson and Ronald Goldman were murdered at Ms. Simpson's Los Angeles home. Shortly after the murders, O.J. Simpson, Ms. Simpson's ex-husband, traveled from Los Angeles to Chicago on American Airlines flight 668. Beverly Deteresa was an attendant on that flight.
On June 19, 1994, Anthony Radziwill, a producer for American Broadcasting Companies, Inc. ("ABC"), came to the door of Deteresa's condominium in Irvine, California. Radziwill told Deteresa that he worked for ABC and wanted to speak with her about appearing on a television show to discuss the flight. Deteresa asked for identification, and Radziwill showed her an ABC picture I.D. Deteresa initially told Radziwill that she was not interested in appearing on the show. She did reveal, however, that she was "frustrated" to hear news reports about the flight that she knew were false. She informed Radziwill, for instance, that contrary to the reports she had heard, Simpson had not kept his hand in a bag during the flight. She also told Radziwill how many passengers had sat in first class and in which seat Simpson had sat. Before Radziwill left, Deteresa told him that she would "think about" appearing on his show.
Radziwill called Deteresa the next morning, June 20, 1994. He asked her again if she would go on camera. When Deteresa declined, Radziwill told her that he had audiotaped their entire conversation the previous day. He also had directed a cameraperson to videotape them from a public street adjacent to Deteresa's home. Deteresa hung up on Radziwill and told her husband, Matthew Deteresa, what had happened. Matthew Deteresa called Radziwill and told him that his wife did not want ABC to broadcast the videotape. Radziwill replied that ABC did not need consent to broadcast the videotape. Matthew then spoke with someone at ABC named "Doc." Matthew asked either Doc or Radziwill not to broadcast the Deteresas' address, Beverly's name, or the audiotape.
That night, ABC broadcast a five-second clip of the videotape on a program called "Day One." Simultaneous to the clip, an ABC announcer stated that "the flight attendant who served Simpson in the first class section told 'Day One' that she did not, as widely reported, see him wrap his hand in a bag of ice." ABC did not broadcast any portion of the audiotape.
Deteresa filed a complaint in federal court, invoking diversity jurisdiction under 28 U.S.C. § 1332, against ABC and Radziwill, alleging five causes of action: (1) unlawful eavesdropping on or recording of confidential communications in violation of Cal.Penal Code § 632(a); (2) physical intrusion on solitude or into private affairs; (3) violation of federal eavesdropping statute, 18 U.S.C. §§ 2511 & 2520; (4) fraud and conspiracy to commit fraud; and (5) unfair business practices. The district court granted summary judgment to ABC and Radziwill on all five causes of action. Deteresa timely appeals.
Deteresa's first cause of action alleges that ABC and Radziwill violated the California eavesdropping statute when Radziwill audiotaped his conversation with Deteresa.
California Penal Code section 632(a) provides:
Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone or other device, except a radio, shall be punished....
Cal.Penal Code § 632(a). Section 637.2(a) permits a civil action against a person who violates the eavesdropping statute. Id. § 637.2(a).
What the parties dispute is whether Radziwill audiotaped a "confidential communication." If the communication between Radziwill and Deteresa was not confidential, section 632(a) does not apply. Section 632(c) defines "confidential communication" as
any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
Id. § 632(c). "Application of the statutory definition of 'confidential communication' turns on the reasonable expectations of the parties judged by an objective standard and not by the subjective assumptions of the parties." O'Laskey v. Sortino, 224 Cal.App.3d 241, 273 Cal.Rptr. 674, 677 (1990) (citation omitted).
California courts have stated two competing formulations of what a party must reasonably expect for a communication to be confidential. In Frio v. Superior Court, 203 Cal.App.3d 1480, 250 Cal.Rptr. 819 (1988), the California Court of Appeal explained that "under section 632 'confidentiality' appears to require nothing more than the existence of a reasonable expectation by one of the parties that no one is 'listening in' or overhearing the conversation." Id. 250 Cal.Rptr. at 824. The court acknowledged, however, that confidentiality could be construed "more narrowly by defining it as a reasonable expectation that the content of the communication has been entrusted privately to the listener." Id. In O'Laskey v. Sortino, the Court of Appeal adopted the narrower construction, "distilling" from Frio and other cases "the basic rule that the statute means what it says": courts must examine whether either party "reasonably expected, under the circumstances ..., that the conversation would not be divulged to anyone else." O'Laskey, 273 Cal.Rptr. at 677.
The Court of Appeal returned to Frio, however, in Coulter v. Bank of Am. Nat'l Trust and Sav. Ass'n, 28 Cal.App.4th 923, 33 Cal.Rptr.2d 766 (1994): "[T]hat the subject matter might be later discussed has no bearing on whether section 632 has been violated." Id. 33 Cal.Rptr.2d at 771. Coulter went on to restate Frio 's construction that confidentiality requires nothing more than a reasonable expectation that no one is listening in. Id. 1
The California Supreme Court has not visited these conflicting lines of cases. "When a decision turns upon applicable state law, and the highest state court has not adjudicated the issue, this Court must determine what decision the highest court would reach if faced with the issue." Capital Dev. Co. v. Port of Astoria, 109 F.3d 516, 519 (9th Cir.1997) (citation omitted). "[W]e must use our best judgment to predict how that court would decide it." Id. (citation omitted).
We predict that the California Supreme Court would adopt the O'Laskey standard, not the Frio standard. In construing a statute, the California Supreme Court "turns first," as it should, "to the words themselves for the answer." Lundquist v. Reusser, 7 Cal.4th 1193, 31 Cal.Rptr.2d 776, 782, 875 P.2d 1279 (1994) (internal quotation marks and citation omitted). Where the plain meaning of the statute is clear, "courts will not interpret away clear language in favor of an ambiguity that does not exist." People v. Coronado, 12 Cal.4th 145, 48 Cal.Rptr.2d 77, 79, 906 P.2d 1232 (1995) (internal quotation marks and citation omitted), cert. denied, --- U.S. ----, 117 S.Ct. 104, 136 L.Ed.2d 57 (1996).
The problem with Frio is that it transforms a specific exclusion to the definition of "confidential communication" into the definition itself. The first clause of section 632(c) explains that " 'confidential communication' includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto...." Cal.Penal Code § 632(c). If, therefore, neither party reasonably expects the communication to be confined to the parties, it is not confidential.
The second clause of section 632(c) goes on specifically to exclude communications "made in a public gathering ... or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded." Cal.Penal Code § 632(a). Thus, where someone reasonably expects that the communication may be overheard, the communication is not confidential. Frio implies, however, that unless someone reasonably expects that the communication will be overheard, the communication is confidential. That interpretation renders the first clause of section 632 surplusage. Under the terms of the statute, if someone does not reasonably expect the conversation to be confined to the parties, it makes no difference under the statute whether the person reasonably expects that another is listening in or not. The communication is not...
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