Ignat v. Yum! Brands, Inc.

• Citation: 154 Cal.Rptr.3d 275,214 Cal.App.4th 808
• Decision Date: 18 March 2013
• Docket Number: G046343
• Court: California Court of Appeals
• Parties: Melissa IGNAT, Plaintiff and Appellant, v. YUM! BRANDS, INC., et al., Defendants and Respondents.

214 Cal.App.4th 808

154 Cal.Rptr.3d 275

Melissa IGNAT, Plaintiff and Appellant,

v.YUM! BRANDS, INC., et al., Defendants and Respondents.

G046343

Court of Appeal, Fourth District, Division 3, California.

Filed March 18, 2013

Reversed.

See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 655.

Appeal from a judgment of the Superior Court of Orange County, B. Tam Nomoto Schumann, Judge. Reversed. (Super.Ct. No. 30–2008–00114748)

John H. Elson, Capitola, for Plaintiff and Appellant.

Ogletree, Deakins, Nash, Smoak & Stewart and Katessa C. Davis, Los Angeles, for Defendants and Respondents.

OPINION

BEDSWORTH, ACTING P.J.

INTRODUCTION

Appellant Melissa Ignat appeals from a judgment of dismissal after the trial court granted summary judgment in favor of Yum! Brands, Inc., alleged to be Ignat's employer, and Mary Shipma, her immediate supervisor, on Ignat's single cause of action for public disclosure of private facts. The basis of Ignat's suit was Shipma's alleged disclosure to Ignat's coworkers of her bipolar condition.

This is Ignat's second trip to our court. She appealed from a prior dismissal on summary judgment after the trial court refused to consider a late-filed opposition. We sent the case back for a decision on the merits. ( Ignat v. Yum! Brands, Inc. (Mar. 1, 2011, G043098) [nonpub. opn.].)

That decision took the form of the trial court granting summary judgment on the ground the right of privacy can be violated only by a writing, not by word of mouth.¹ Because Ignat had not produced any document disclosing private facts, she could not pursue this cause of action. The trial court lamented the “irrationality” of this rule, but felt itself bound by precedent.

We believe this rule—to the extent it is still observed—is outmoded and interferes with a person's right to privacy without any corresponding benefit to any other right or policy. Other restrictions on liability for invasion of privacy serve other important interests, such as free speech or freedom of the press. But no one has come up with a good reason for restricting liability to written disclosures, and it has long been acknowledged that oral disclosures can be just as harmful.

Because the lack of a writing was the sole basis for the trial court's grant of summary judgment, we reverse. We express only one opinion about the other issues raised in respondents' motion.

FACTS

Yum! Brands is the corporate parent of several fast food franchises, such as Taco Bell, Pizza Hut, and KFC (formerly known as Kentucky Fried Chicken). Yum employed Ignat between 2005 and 2008 in the Yum Real Estate Title Department, located in Irvine.² She assisted paralegals in the department with securing title to the real estate on which Yum's franchised stores conducted business.

Ignat suffered from bipolar disorder, for which she was being treated with medications. Sometimes these were effective, sometimes not. Side effects of medication adjustments occasionally forced Ignat to miss work.

Ignat alleged that after returning from one such absence in mid–2008, Shipma informed her that Shipma had told everyone in the department Ignat was bipolar. Ignat alleged her coworkers subsequently avoided and shunned her, and one of them asked Shipma if Ignat was likely to “go postal” at work.

Ignat was terminated in early September 2008. She filed suit against Yum! Brands and Shipma on November 12, 2008, alleging one cause of action for invasion of privacy by public disclosure of private facts. Respondents moved for summary judgment or summary adjudication, identifying seven issues, four of which addressed the elements of a cause of action for public disclosure of private facts. These were: (1) Shipma never told the title department about Ignat's disorder; (2) Shipma did not disclose Ignat's disorder in writing; (3) the disclosure was not highly offensive to a reasonable person; and (4) Ignat had already revealed her condition to some people in the department and therefore had no expectation of privacy.

The court held a hearing on the merits of respondents' motion on November 15, 2011. It granted the motion, basing its ruling solely on the lack of a writing disclosing the private facts. The court also addressed Ignat's argument that respondents had violated her state constitutional right to privacy, which did not require a writing. The problem with that argument, the court held, was that Ignat had not pleaded a violation of a constitutional right in her complaint, which defined the scope of the motion for summary judgment. Ignat has appealed from the judgment entered after the motion was granted.

DISCUSSION

I. Standard of Review

“A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.] We review the trial court's decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports. [Citation.] In the trial court, once a moving defendant has ‘shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff ‘may not rely upon the mere allegations or denials of its pleadings ... but, instead, shall set forth specific facts showing that a triable issue of material fact exists as to the cause of action....’ [Citations.]” ( Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476, 110 Cal.Rptr.2d 370, 28 P.3d 116.) In the absence of supplemental briefing, we may not affirm a summary judgment on a ground on which the trial court did not rely. (Code Civ. Proc., § 437c, subd. (m)(2).)

II. The Common–Law Right to Privacy

As legal lore has it, the first widely recognized call in American law for a right to privacy based on the common law and enforceable in a tort action sounded in an article by Samuel D. Warren and Louis D. Brandeis in the Harvard Law Review of 1890. (Warren and Brandeis The Right to Privacy (1890) 4 Harv. L.Rev. 193.) The authors deplored “[r]ecent inventions and business methods”—namely advances in photography and the proliferation of newspapers—that “have invaded the sacred precincts of private and domestic life” and “threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the house-tops.’ ” ³ ( Id. at p. 195.) In light of these new technologies, the established legal protections for individual privacy no longer functioned adequately.⁴ The new tort, authorized by “the beautiful capacity for growth which characterizes the common law[,] enabled judges to afford the requisite protection, without the interposition of the legislature.” ⁵ ( Ibid.) Warren and Brandeis extracted from existing common-law protections for property a right personal to an individual, analogous to the right to reputation protected by defamation law. Although they located its origins in the common law, they sought to cut privacy loose from the law of property and to make it a right enforceable on its own.

Warren and Brandeis recognized that the right to privacy must be subject to conditions if it was to coexist with freedom of speech, freedom of the press, and other established areas of law. Accordingly, they proposed limitations on the right. It does not prevent publication of matters of general or public interest (or, as we would say now, “newsworthy” matters). It does not apply to privileged publications, such as court testimony. If the person publishes the facts himself, or consents to their publication, they are no longer private. ( The Right to Privacy, supra, 4 Harv. L.Rev. at pp. 214–218.)

The authors also speculated that “[t]he law would probably not grant any redress for the invasion of privacy by oral publication in the absence of special damage. [¶] The same reasons exist for distinguishing between oral and written publications of private matters, as is afforded in the law of defamation by the restricted liability for slander as compared with the liability for libel. The injury resulting from such oral communications would ordinarily be so trifling that the law might well, in the interest of free speech, disregard it altogether.” ( The Right to Privacy, supra, 4 Harv. L.Rev. at p. 217, fn. omitted.) They then quoted from an article on privacy published a few months earlier: “ ‘But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespassed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it.’ ” ( Ibid. at fn. 4, quoting E.L. Godkin, The Rights of the Citizen: To his Reputation, Scribner's Magazine, July, 1890, p. 66.)

Seventy years later, Dean William Prosser surveyed the judicial right-to-privacy landscape to see what Warren and Brandeis had wrought. (Prosser, Privacy (1960) 48 Cal.L.Rev. 383.) After examining over 300 cases decided after the article appeared, Prosser concluded their right to privacy had headed off in four different directions that shared only the desire to defend a person's right “to be let alone.” ( Id. at p. 389.) The four torts grouped under this heading were: (1) intrusion upon a person's seclusion or solitude; (2) public disclosure of private facts; (3) publicity that places a person in a false light; and (4) misappropriation of a person's name and...