Lindholm v. Galvin

• Decision Date: 26 July 1979
• Parties: Thomas C. LINDHOLM and Edward Dale Griffin, Plaintiffs and Appellants, v. Gerald Thomas GALVIN and Carl L. Morrow, Defendants and Respondents. Civ. 54566.
• Court: California Court of Appeals Court of Appeals

Page 167

157 Cal.Rptr. 167

95 Cal.App.3d 443

Thomas C. LINDHOLM and Edward Dale Griffin, Plaintiffs and Appellants, v. Gerald Thomas GALVIN and Carl L. Morrow, Defendants and Respondents.

Civ. 54566.

Court of Appeal, Second District, Division 4, California.

July 26, 1979.

Hearing Denied Sept. 20, 1979.

Lindholm & Lindholm and Thomas C. Lindholm, Woodland Hills, for plaintiffs and appellants.

Henderson & Smith Law Corp. and Joseph R. Henderson, Ventura, for defendants and respondents.

JEFFERSON, Associate Justice.

Plaintiffs Thomas C. Lindholm and Edward Dale Griffin sought damages as provided in Penal Code section 637.2 ¹ from defendants City of Simi Valley, Gerald Thomas Galvin and Carl Morrow. Thereafter, pursuant to stipulation, defendant City was dismissed from the action without prejudice. Defendants Galvin and Morrow answered the complaint after their demurrer was overruled.

The parties entered into a written stipulation which provided, Inter alia, that "(t)his matter shall be tried to conclusion as an arbitration proceeding under the provisions of Section 1282 et seq., of the Code of Civil Procedure." ² The stipulation also provided for the arbitrator to make findings of fact and conclusions of law. The parties also stipulated for a judgment to be rendered and entered in conformity with the arbitrator's award.

The case was tried before an arbitrator selected pursuant to the parties' stipulation. The arbitrator made findings of fact and conclusions of law in favor of defendants. A judgment in conformity with the award was signed by a superior court judge and entered accordingly. Plaintiffs have appealed from this judgment. We consider this judgment as a confirmation of the award which satisfies the provisions of Code of Civil Procedure section 1287.4. ³

I The Factual Background

The facts giving rise to this litigation are not in dispute. On October 2, 1973, plaintiff Griffin was arrested by Simi Valley police officers and charged with assault on a police officer. The incident had been occasioned by the fact that plaintiff Griffin had been drinking heavily on that day, and a domestic altercation ensued. The police came to subdue Griffin, and were required to use force. After treatment at a local hospital for some injuries sustained thereby, plaintiff Griffin was taken to the SimiValley Police Station and placed in the office of the Chief of Police.

Griffin was advised of his constitutional rights with respect to custodial interrogation by defendant Police Officer Morrow. Griffin indicated to Morrow that he did not wish to discuss anything with him but desired legal counsel. Morrow had a tape recorder in the Chief's office, and recorded the advisement of rights and Griffin's response. When Griffin refused to talk, Morrow turned off the tape recorder. Morrow then conferred with his supervising officer, defendant Galvin, who suggested that Morrow return to the office and engage Griffin in conversation. Morrow did so, and reactivated the tape recorder. Morrow provided Griffin with black coffee and a sympathetic ear.

Within a short period of time, the other plaintiff herein, attorney Lindholm, arrived at the police station to see Griffin, his client. Lindholm was directed to the Chief's office by Galvin. There, with Officer Morrow present, Lindholm discussed Griffin's situation with him. After Lindholm joined the conversation between plaintiff and Officer Morrow, the latter offered information to Lindholm and Griffin about bail arrangements. Unknown to either Lindholm or Griffin, however, was the fact that the tape recorder was activated and recording the three-way conversation. ⁴

Thereafter, plaintiffs Lindholm and Griffin discovered that the conversation had been recorded, and this action against the two law enforcement officers ensued.

II Penal Code Sections Providing Liability for Nonconsensual Recording of a Suspect's Jailhouse Conversation with his Lawyer

Plaintiffs sought damages against defendants pursuant to the provisions of section 637.2 of the Penal Code. Section 637.2 is a part of Chapter 1.5 of [95 Cal.App.3d 447] the Penal Code, entitled "Invasion of Privacy." ⁵ The two key sections forming the thrust of plaintiffs' lawsuit are Penal Code sections 636 and 637.2.

Penal Code section 636 provides, in part pertinent to the issue here, that "(e)very person who, without permission from all parties to the conversation, eavesdrops on or records by means of an electronic or other device, a conversation . . . between a person who is in the physical custody of a law enforcement officer or other public officer, or who is on the property of a law enforcement agency or other public agency, and such person's attorney, religious advisor, or licensed physician, is guilty of a felony; . . ."

Penal Code section 637.2 provides in part relevant to the issue before us, that "(a)ny person who has been injured by a violation of this chapter (ch. 1.5 Invasion of Privacy) may bring an action against the person who committed the violation for the greater of the following amounts: (P) 1. Three thousand dollars ($3,000). (P) Three times the amount of actual damages, if any, sustained by the plaintiff. . . . (P) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages."

Each plaintiff here was seeking $3,000 from each defendant or a total of $6,000 for each plaintiff. A part of the stipulation for arbitration was in accord with the limitations of Penal Code section 637.2, restricting recovery to $3,000 against each person violating a plaintiff's rights in the absence of three times actual damages in excess of this amount.

III

The Arbitrator's Findings of Fact, Conclusions of Law and Award

The arbitrator made the following relevant findings of fact:

Finding 1 recited: "That on October 2, 1973 Edward Dale Griffin was taken into custody by the Simi Valley Police Department and was transported to the Simi Valley Police Department Offices."

Finding 2 recited: "That during the time Edward Dale Griffin was in custody at the Simi Valley Police Department, a conversation between Edward Dale Griffin and Thomas C. Lindholm was recorded by means of an electronic device."

Finding 3 recited: "That at the time said conversation was recorded, Thomas C. Lindholm was the attorney for Edward Dale Griffin."

Finding 4 recited: "That the parties have stipulated (1) that said conversation was non-privileged; (2) that said conversation was recorded while Edward Dale Griffin was in the custody of Simi Valley Police Officer Carl L. Morrow; and (3) that there was no actual consent by Thomas C. Lindholm or Edward Dale Griffin that said conversation be recorded."

Finding 5 recited: "That implied consent to the recording of said conversation was not given by either Thomas C. Lindholm or Edward Dale Griffin."

The arbitrator's conclusions of law were as follows:

"1. That Penal Code Section 636 applies solely to the recording of privileged conversations.

"2. That the conversation between Thomas C. Lindholm and Edward Dale Griffin which was recorded on October 2, 1973 was not a privileged conversation.

"3. That defendants Gerald Thomas Galvin and Carl L. Morrow, and each of them, are not liable to plaintiffs Edward Dale Griffin and Thomas C. Lindholm, and each of them, for the recording of said conversation on October 2, 1973."

IV Does Penal Code Section 636 Apply Solely to Privileged Conversations?

On this appeal, the parties have directed the main thrust of their arguments to the question of whether Penal Code section 636 which prohibits non-consensual electric recording of a conversation between a suspect in custody and his "attorney, religious advisor, or licensed physician" applies to the recording of all jailhouse conversations between a suspect and his attorney, religious advisor or physician, or only to conversations between these participants which constitute "privileged" conversations.

Since a third person Officer Morrow was present during the conversation between plaintiff Griffin and his attorney, plaintiff Lindholm, it is conceded that the statements of Griffin to his attorney would not qualify as a confidential communication between client and lawyer privileged from disclosure pursuant to the lawyer-client privilege set forth in Evidence Code section 954. ⁶

A similar definition of a confidential communication for the physician-patient privilege is found in Evidence Code section 992, and for the clergyman-penitent privilege in Evidence Code section 1032.

In addressing the issue of the appropriate meaning to be accorded to Penal Code section 636, the parties have considered this appeal as an appeal from a judgment rendered by a regular judge in a court trial, a jury having been waived. But we must consider the matter of whether we are limited in our review of the judgment because the judgment is one that followed from a trial by an arbitrator rather than one that followed a trial by the court without a jury.

There are significant differences in the appellate review of a judgment confirming an award of an arbitrator and the appellate review of a judgment made by the court following a court trial. We now turn to a consideration of these differences.

V The Limitations on Appellate Review of a Judgment Confirming an Arbitrator's Award

In the case before us, the parties were not required to submit their dispute to arbitration by reason of any arbitration agreement. However, they chose, by written stipulation, to have their dispute "tried to conclusion as an arbitration proceeding under the provisions of Section 1282 et seq., of the Code of Civil Procedure." Having voluntarily chosen this method, they are bound by the rules of law pertaining to such arbitration.

It has been aptly stated: "Arbitration is a voluntary procedure for settling disputes, leading to a final determination of the rights of the parties. The policy...