Kimmel v. Goland

• Citation: 51 Cal.3d 202,271 Cal.Rptr. 191,793 P.2d 524
• Decision Date: 12 July 1990
• Docket Number: No. S007828,S007828
• Court: United States State Supreme Court (California)
• Parties: , 793 P.2d 524 Daniel G. KIMMEL et al., Plaintiffs, Cross-Defendants and Respondents, v. Margaret R. GOLAND, as Trustee, etc., et al., Defendants, Cross-Complainants and Appellants; R. Richard Farnell, Cross-Defendant and Respondent.

Page 191

271 Cal.Rptr. 191

51 Cal.3d 202, 793 P.2d 524

Daniel G. KIMMEL et al., Plaintiffs, Cross-Defendants and Respondents, v. Margaret R. GOLAND, as Trustee, etc., et al., Defendants, Cross-Complainants and Appellants;

R. Richard Farnell, Cross-Defendant and Respondent.

No. S007828.

Supreme Court of California,

In Bank.

July 12, 1990.

Timothy T. Tierney, Cappadona & Oldman and Lyle R. Mink, Encino, for appellants.

Cotkin, Collins & Franscell, William D. Naeve, Sheryl A. Weinstein, Margaret Kathryn

Maas and R. Richard Farnell, Santa Ana, for respondents.

Solish, Jordan & Wiener, Jonathan Solish and Douglas P. Bedard, Los Angeles, as amici curiae on behalf of plaintiffs, cross-defendants and respondents.

INTRODUCTION

ARABIAN, Associate Justice.

In this case we are called upon to determine whether the privilege of Civil Code section 47, subdivision 2, ¹ shields a person from liability for the unlawful recording, in anticipation of litigation, of confidential telephone conversations.

We conclude that the privilege of section 47(2) precludes recovery for tortiously inflicted injury resulting from publications or broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortious conduct regardless of the purpose for which such conduct is undertaken. ² Our holding is limited to the narrow facts before us involving noncommunicative acts--the illegal recording of confidential telephone conversations--for the purpose of gathering evidence to be used in future litigation. Because the conduct at issue here was not privileged under section 47(2), the judgment of the Court of Appeal is affirmed and the case is remanded for trial.

I. BACKGROUND

In reviewing an order granting a motion for judgment on the pleadings, we accept as true all material allegations in the complaint. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714-715, fn. 3, 117 Cal.Rptr. 241, 527 P.2d 865; April Enterprises v. KTTV (1983) 147 Cal.App.3d 805, 815, 195 Cal.Rptr. 421; Baillargeon v. Department of Water & Power (1977) 69 Cal.App.3d 670, 675, 138 Cal.Rptr. 338; Stencel Aero Engineering v. Superior Court (1976) 56 Cal.App.3d 978, 987, 128 Cal.Rptr. 691.)

This appeal arises out of a cross-complaint in an underlying action involving the sale of mobilehomes. Plaintiffs Diane Vollrath and Daniel and Elizabeth Kimmel were residents of the Country Club Mobile Manor, a mobilehome park located in Santa Ana, California. Vollrath and the Kimmels (plaintiffs) were each living in mobilehomes that were less than 20 feet wide and, as of January 1, 1983, were more than 17 years old.

In late 1982, plaintiffs decided to sell their mobilehomes. At that time, section 798.73 provided in relevant part that, "in the event of a sale to a third party, in order to upgrade the quality of the park, the management may require that a mobilehome be removed from the park" if, among other things, it was more than 17 years old and less than 20 feet wide. (§ 798.73, subd. (c).) Effective January 1, 1983, however, section 798.73 was amended to provide that management could not require removal of a mobilehome unless, in addition to meeting the age and size criteria, the mobilehome did not comply with the construction and safety standards of the Health and Safety Code. ³ This amendment was of particular importance to owners of older mobilehomes because mobilehomes sold in place have significantly greater market value than mobilehomes which must be removed upon sale.

In 1983, relying on the amendment and believing their mobilehomes complied with all applicable state laws, plaintiffs offered their homes for sale. They allege, however, that George Brooks and Vaughn Drage, management representatives of the Country Club Mobile Manor (park management), informed them the mobilehomes could not be sold in place unless certain repairs were made. Plaintiffs assert that none of the demanded repairs or changes were required by state law. They further allege that park management was trying to force them to remove the old homes in an effort to upgrade the park and raise rents in violation of section 798.73, subdivision (c).

In the belief that park management would subsequently deny statements regarding "required" repairs and modifications, and in anticipation of suing park management, plaintiffs undertook the tape recording of future conversations with park management without their consent or knowledge. Plaintiff Vollrath recorded her conversations with Brooks and Drage; plaintiff Daniel Kimmel recorded his conversation with Drage; and Annette Brown, Daniel Kimmel's sister, recorded her conversation with Drage in which she pretended to be a potential buyer for the Kimmel's mobilehome. The tape recordings were subsequently transcribed by plaintiffs' attorney, Richard Farnell.

After making the recordings, plaintiffs filed suit against park management for interference with prospective economic advantage, intentional infliction of emotional distress, bad faith, and unlawful business practices. The suit alleged that park management refused to permit the owners to sell their mobilehomes in place in violation of section 798.73. Park management answered by general denial.

While the action was pending, park management learned of the existence of plaintiffs' tape recordings and filed a cross-complaint alleging violation of Penal Code section 632, part of California's Invasion of Privacy Act (Pen.Code, § 630 et seq.) (privacy act). ⁴ Park management sought damages as provided by Penal Code section 637.2 against plaintiffs and Attorney Farnell. ⁵ As alleged in the cross-complaint between January and April of 1983, plaintiffs taped confidential telephone conversations without park management's consent or knowledge. During this period, plaintiffs delivered the tapes to Farnell on five separate occasions. Although Farnell was not present during the actual recording of the conversations, he transcribed the tapes and "furthered the unlawful agreement [to record the confidential conversations] by aiding, abetting, counseling, advising and encouraging" plaintiffs in their recording of the calls. ⁶

Prior to trial, plaintiffs and Farnell ⁷ moved for judgment on the pleadings as to the cross-complaint, arguing that, because the tapes were made for the purpose of gathering evidence in anticipation of litigation, their conduct (i.e. recording and transcribing the conversations) was privileged under section 47(2). The trial court granted plaintiffs' motion for judgment on the pleadings on the ground that the litigation privilege of section 47(2) rendered them immune from liability for the alleged violation of the privacy act. The case proceeded to trial, the tapes were admitted into evidence over park management's objections, and the jury awarded plaintiffs $75,000 in actual damages and $495,000 in punitive damages.

Park management appealed the dismissal of the cross-complaint and the judgment awarding damages to plaintiffs. The Court of Appeal consolidated the appeals and reversed both judgments, concluding that the litigation privilege of section 47(2) did not bar park management's cause of action. The court reasoned: "Recordings made in violation of the Penal Code could hardly be said to be in furtherance of the litigation or to promote the interest of justice."

We granted plaintiffs' petition for review in part because of the Court of Appeal's consideration of the "interest of justice" test that we recently disapproved in Silberg v. Anderson, supra, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, and in part to clarify the proper scope of the litigation privilege.

II. DISCUSSION

A. The Litigation Privilege--Section 47(2)

The central issue we address is whether the litigation privilege of section 47(2) applies to plaintiffs' conduct. Our analysis starts from the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. (People v. Woodhead (1987) 43 Cal.3d 1002, 1007, 239 Cal.Rptr. 656, 741 P.2d 154; People v. Overstreet (1986) 42 Cal.3d 891, 895, 231 Cal.Rptr. 213, 726 P.2d 1288.) In determining intent, we look first to the language of the statute giving effect to its "plain meaning." (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 218-219, 188 Cal.Rptr. 115, 655 P.2d 317.)

On its face, section 47(2) applies to all "publication[s] or broadcast[s]" made in the course of a "judicial proceeding." Although the litigation privilege was originally limited to shielding litigants, attorneys and witnesses from liability for defamation (see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163, 232 Cal.Rptr. 567, 728 P.2d 1202), it has been interpreted to apply to virtually all torts except malicious prosecution. (Albertson v. Raboff (1956) 46 Cal.2d 375, 382, 295 P.2d 405; Kilgore v. Younger (1982) 30 Cal.3d 770, 778, 180 Cal.Rptr. 657, 640 P.2d 793; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390, 182 Cal.Rptr. 438; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.) This includes the tort of invasion of privacy. (Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal Rptr. 143, 696 P.2d 637; see Kilgore v. Younger, supra, 30 Cal.3d 770, 782, 180 Cal.Rptr. 657, 640 P.2d 793.)

We recently held in Silberg v. Anderson, supra, 50 Cal.3d at page 212, 266 Cal.Rptr. 638, 786 P.2d 365, that the privilege of section 47(2) extends to any communication: "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action." (See, e.g., Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124, 255 Cal.Rptr. 315; Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal.App.3d 1513, 1521, 254 Cal.Rptr. 478; Walsh v. Bronson...