Rogers v. Ulrich

• Decision Date: 10 November 1975
• Citation: 52 Cal.App.3d 894,125 Cal.Rptr. 306
• Court: California Court of Appeals Court of Appeals
• Parties: Harold ROGERS, Plaintiff and Appellant, v. Robert ULRICH, Defendant and Respondent. Civ. 37152.

Page 306

125 Cal.Rptr. 306

52 Cal.App.3d 894

Harold ROGERS, Plaintiff and Appellant, v. Robert ULRICH, Defendant and Respondent.

Civ. 37152.

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

Nov. 10, 1975.

Hearing Denied Jan. 28, 1976.

Richard A. Arzino, San Jose, for plaintiff-appellant.

Richard J. Wylie, Wylie, Leahy, Blunt & McBride, San Jose, for defendant-respondent.

CHRISTIAN, Associate Justice.

Harold Rogers appeals from a judgment for the defense, rendered pursuant to Code of Civil Procedure section 631.8, in this action for damages for recordation of a telephone conversation. Appellant sought damages from the City of San Jose and from Robert Ulrich because Ulrich, a city employee, had tape recorded, and allowed other persons to hear, portions of a telephone conversation between Rogers and Ulrich. In appellant's first cause of action it was alleged that Ulrich had wrongfully recorded and disseminated the conversation, causing general damages in the amount of $50,000. It was also alleged that a claim therefor had been presented to defendant city and rejected. A second cause of action restated all the factual allegations of the first, and set out a claim that because the conversation had been recorded without Rogers' knowledge the incident amounted to wiretapping as defined by Penal Code section 631; a statutory penalty in the amount of $3,000 was sought under Penal Code section 637.2.

Ulrich moved for summary judgment; the court granted the motion as to the first cause of action but denied it as to the second. The city also moved for summary judgment; the court ruled as it had with respect to Ulrich's motion on the first cause of action and in addition granted partial summary judgment on the second, determining that the city could only be held liable for Rogers' actual damages, if any, and not for any damages under Penal Code section 637.2.

On December 23, 1974, Ulrich amended his answer to set forth an affirmative defense to any liability under Penal Code section 632 (eavesdropping on or recording confidential information) even though a cause of action for violation of that section had not yet been pleaded by Rogers. Immediately prior to the beginning of trial on January 14, 1975, Rogers' attorney orally requested leave to amend the complaint to allege violation of Penal Code section 632 instead of section 631; no proposed amendment was submitted, and the request was denied. At the close of Rogers' case, defendants moved for judgment pursuant to Code of Civil Procedure section 631.8; Rogers again requested leave to amend his complaint, still without submitting a proposed amendment. Rogers' request was denied and the court rendered judgment in favor of defendants.

Early in 1973, Rogers, then a candidate for the San Jose City Council, had requested free use of the city council chambers for a meeting of an organization, 'Taxpayers Unanimous,' of which he was president. He was told that he would have to submit a written request on a form supplied by the city. Ulrich, public information officer for the city, was in charge of determining the use of the chambers by private groups. Ulrich became concerned when the form which had been sent to Rogers was not returned. He telephoned Rogers to notify him that according to a written policy statement of the city council, Rogers' organization apparently did not qualify for free use of the chambers. Unknown to Ulrich, the policy in question had recently been revised, and Rogers' organization in fact qualified. During the course of the conversation, Rogers became increasingly angry. Ulrich testified that the tone of Rogers' remarks became steadily more threatening; the threats concerned having Ulrich removed from his job if he did not grant Rogers free use of the council chambers.

A tape recorder jack had recently been installed on Ulrich's telephone by the telephone company; Ulrich used the device to place calls to city officers concerning city activities, record the conversations, and then relay parts of these conversations, along with background commentary, to local radio stations for broadcast. As the conversation became threatening, Ulrich plugged in the recorder and preserved the latter part of the conversation on tape. The recorder did not have a 'beeper,' and Ulrich did not tell Rogers that he was recording the conversation.

After talking to Ulrich, Rogers called Vice Mayor Goglio and complained about his treatment by Ulrich. When Goglio later asked Ulrich what he had told Rogers, Ulrich played part of the tape for Goglio 'to establish the tenor of (Rogers') remarks.'

The next day, Goglio informed Rogers that he had listened to the tape. Rogers then called the managing editor of the San Jose Mercury newspaper, and asked him to run a stroy about the taping of the conversation; James Sullivan testified that when he was at Ulrich's home on a date shortly after the abovementioned newspaper story was published, Ulrich played the tape for him at his request.

Appellant contends that the court erred in granting defendants' motions for judgment, pursuant to Code of Civil Procedure section 631.8, with respect to the second cause of action (wiretapping--Pen.Code, § 631). ¹ The question is whether the statute covers the recording of a conversation made by a participant rather than by a third party. The statute prohibits three ways of obtaining information being sent over a...