Ribas v. Clark

• Decision Date: 18 March 1985
• Docket Number: S.F. 24757
• Citation: 212 Cal.Rptr. 143,696 P.2d 637,38 Cal.3d 355
• Court: California Supreme Court
• Parties: , 696 P.2d 637, 49 A.L.R.4th 417 Richard M. RIBAS, Plaintiff and Appellant, v. Joan CLARK, Defendant and Respondent.

Page 143

212 Cal.Rptr. 143

38 Cal.3d 355, 696 P.2d 637, 49 A.L.R.4th 417

Richard M. RIBAS, Plaintiff and Appellant, v. Joan CLARK, Defendant and Respondent.

S.F. 24757.

Supreme Court of California In Bank.

March 18, 1985.

John J. Hartford, Redwood City, for plaintiff and appellant.

Gary C. Smith, Smith & Carlquist and Jeffrey J. Sloane, Los Gatos, for defendant and respondent.

MOSK, Justice.

This is an appeal from a judgment of dismissal entered after the court sustained a demurrer to an amended complaint without leave to amend. The facts alleged in the complaint are as follows:

Plaintiff Ribas and his wife began divorce proceedings that ultimately resulted in a court-approved property settlement agreement. The wife was not represented by counsel. After the final judgment of dissolution, the wife consulted an attorney about the tax consequences of the settlement. When informed that the agreement had allegedly adverse implications, she advised plaintiff she had retained the attorney. Plaintiff immediately telephoned the lawyer and a heated exchange ensued.

About an hour later, the wife visited the place of business of defendant Clark and requested to use the telephone to call her husband. She also asked defendant to listen on an extension telephone, and defendant obliged. During this conversation, plaintiff related to his wife--at her prompting--the details of his discussion with her lawyer.

The wife filed an action to set aside the dissolution, alleging that plaintiff procured it by fraud. During an arbitration hearing, defendant testified to her recollection of the conversation on which she had eavesdropped. In particular, she stated that she heard plaintiff concede he had prevented his wife from obtaining counsel during the dissolution proceedings. Although the arbitrator ruled in plaintiff's favor, plaintiff subsequently filed this action against defendant Clark seeking damages for violations of criminal statutes prohibiting various forms of eavesdropping (Pen.Code, §§ 631, subd. (a), and 637), as well as for invasion of privacy, intentional infliction of emotional distress, and outrage. A demurrer to the amended complaint was sustained without leave to amend, and this appeal followed. ¹

I.

Plaintiff's primary contention is that defendant's act of monitoring his conversation with his wife constituted a breach of the Invasion of Privacy Act (Pen.Code, §§ 630-637.5, hereafter Privacy Act), vesting in him a civil cause of action for damages. Defendant replies that the Privacy Act has never been--and should not now be--construed to prohibit eavesdropping by means of an extension telephone.

The dispute centers on Penal Code section 631, subdivision (a), which penalizes various forms of secret monitoring of conversations. The statute makes punishable "[a]ny person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection, whether physically, electrically, acoustically, inductively, or otherwise, with any telegraph or telephone wire, line, cable, or instrument, ... or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit ..., or is being sent from, or received at any place within this state...." ²

In enacting this statute, the Legislature declared in broad terms its intent "to protect the right of privacy of the people of this state" from what it perceived as "a serious threat to the free exercise of personal liberties [that] cannot be tolerated in a free and civilized society." (Pen.Code, § 630.) This philosophy appears to lie at the heart of virtually all the decisions construing the Privacy Act. (See, e.g., Warden v. Kahn (1979) 99 Cal.App.3d 805, 810, 160 Cal.Rptr. 471.) Section 631 was aimed at one aspect of the privacy problem-- eavesdropping, or the secret monitoring of conversations by third parties. (Rogers v. Ulrich (1975) 52 Cal.App.3d 894, 899, 125 Cal.Rptr. 306.)

Defendant contends that the Privacy Act prohibits only the unauthorized monitoring of communications while they are "in transit," and that "once a phone message reaches its place of destination it is no longer in transit...." This argument, however, ignores the plain language of section 631, subdivision (a), that provides for the punishment of one "who willfully and without the consent of all parties ... reads, or attempts to read, or to learn the contents ... of [a] ... communication while the same is in transit ..., or is being sent from, or received at any place within this state...." (Italics added.) It cannot be seriously disputed that defendant is accused of eavesdropping on plaintiff's conversation with his wife while the communication was either "in transit" or was "being sent from" and "received at" a place within this state. Thus, viewing the operative language of the statute alone, we conclude the complaint charges defendant with a prima facie violation of section 631.

Defendant nevertheless argues that section 631 proscribes nothing more than wiretaps, and cites People v. Soles (1977) 68 Cal.App.3d 418, 420, 136 Cal.Rptr. 328, as authority for this position. ³ In Soles, a motel manager furtively listened on the motel switchboard to telephone calls to the defendant's room concerning narcotics transactions. Although the court deemed section 631 inapplicable, its decision rested primarily on the ground that the manager's continuing interest in keeping his premises free of criminal activity precluded tenants from entertaining a reasonable expectation of privacy in their conversations. (Id. at p. 421, 136 Cal.Rptr. 328.) In any event, to the extent that Soles viewed section 631 as merely encompassing the use of electronic amplifying and recording devices, it is erroneous. Such a construction is inconsistent with the broad wording and purpose of the statute, and would render superfluous the language proscribing attempts "in any unauthorized manner ... to learn the contents ... of any ... communication...."

We have read section 631 as prohibiting far more than illicit wiretapping. (Tavernetti v. Superior Court (1978) 22 Cal.3d 187, 192-193, 148 Cal.Rptr. 883, 583 P.2d 737.) In Tavernetti, we considered the section to proscribe three separate acts: (1) intentional wiretapping, (2) willful attempts to learn the contents of a communication in transit, and (3) attempts to use or publicize information obtained in either manner. (Id. at p. 192, 148 Cal.Rptr. 883, 583 P.2d 737; see also People v. Suite (1980) 101 Cal.App.3d 680, 686, 161 Cal.Rptr. 825.) Additionally, the Privacy Act has long been held to prevent one party to a conversation from recording it without the other's consent. (People v. Wyrick (1978) 77 Cal.App.3d 903, 909, 144 Cal.Rptr. 38; Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 191, 133 Cal.Rptr. 573.) While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or mechanical device. (Warden v. Kahn, supra, 99 Cal.App.3d 805, 813-814, 160 Cal.Rptr. 471.)

As one commentator has noted, such secret monitoring denies the speaker an important aspect of privacy of communication[696 P.2d 641] --the right to control the nature and extent of the firsthand dissemination of his statements. (Comment, Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal.L.Rev. 1182, 1232.) Partly because of this factor, the Privacy Act has been read to require the assent of all parties to a communication before another may listen. (Id. at p. 1202.) Thus, the Legislature could reasonably have contemplated that section 631, subdivision (a), would prohibit the type of surreptitious monitoring of private conversations alleged here, and there is no indication that it did not. Indeed, it is probable that the Legislature viewed section 631 as a means of proscribing attempts to circumvent other aspects of the Privacy Act, e.g., by requesting a secretary to secretly transcribe a conversation over an extension, rather than tape recording it in violation of section 632.

Even in jurisdictions with eavesdropping statutes that are narrower than that of California, several courts have at least implied that listening on extension telephones without the consent of all participants is prohibited. Thus, an Arizona court affirmed, under a federal wiretapping statute that has since been amended, the suppression of evidence obtained by telephone operators who eavesdropped on a conversation between the defendant and his wife. (State v. Dwyer (1978) 120 Ariz. 291, 585 P.2d 900.) In a similar vein, the language of several Florida decisions supports a construction of that state's laws that would ban "all unauthorized eavesdropping by use of extension telephone instruments...." (Horn v. State (Fla.App.1974) 298 So.2d 194, 199 (decided before the relevant statute was amended to require the consent of all parties to the conversation); see also State v. Tsavaris (Fla.1981) 394 So.2d 418, 423; State v. Sarmiento (Fla.1981) 397 So.2d 643, 645.) Coincidentally, in reviewing the Florida law on the subject, one commentator has observed that the surreptitious monitoring of private communications is an increasing problem in domestic relations cases, not unlike the matter before us. (Greene, Woods Have Eyes as Walls Have Ears: Intraspousal Wiretapping and Eavesdropping in Domestic Relations Cases (1982) 56 Fla.Bar J. 643, 644.)

In short, a textual analysis of section 631, the declaration of legislative intent accompanying its enactment, and the various judicial and scholarly authorities...