Safari Club Int'l v. Rudolph

• Decision Date: 18 January 2017
• Docket Number: No. 14-56236,14-56236
• Citation: 845 F.3d 1250
• Parties: SAFARI CLUB INTERNATIONAL; Joan Whipple, Plaintiffs-Appellees, v. Dr. Lawrence P. RUDOLPH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

845 F.3d 1250

SAFARI CLUB INTERNATIONAL; Joan Whipple, Plaintiffs-Appellees,

v.Dr. Lawrence P. RUDOLPH, Defendant-Appellant.

No. 14-56236

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2016, Pasadena, California

Filed January 18, 2017

Kenneth M. Argentieri (argued), Duane Morris LLP, Pittsburg, Pennsylvania; Patricia P. Hollenbeck and Heather U. Guerena, Duane Morris LLP, San Diego, California; for Defendant-Appellant.

Albert C. Nicholson (argued) and Vince M. Verde, Ogletree Deakins Nash Smoak & Stewart P.C., Costa Mesa, California; Joseph J. Nardulli, The Wolf Law Firm, Irvine, California; for Plaintiffs-Appellees.

Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit Judges, and Richard Seeborg,^* District Judge.

OPINION

SEEBORG, District Judge:

Dr. Lawrence P. Rudolph is an award-winning hunter who made his way to the top of Safari Club International ("SCI"), a sport hunting and wildlife conservation organization. Following his term at the helm, various SCI members accused him of official misconduct, stripped him of his awards, and then exiled him permanently from the association. That's when the season opened. Rudolph sued SCI and its president, his friend, John Whipple, whom he assured was named only by virtue of his position at the head of the organization. With his quarry in sight, Rudolph lured Whipple to lunch, brought up the pending litigation, recorded the conversation surreptitiously, and then posted it on YouTube for public consumption.

Outraged, Whipple and SCI fired back at Rudolph with a barrage of legal claims, including statutory invasion of privacy, negligence per se, and common law invasion of privacy. The district court granted Rudolph's motion to strike under California's anti-SLAPP statute as to four claims for relief, but denied the motion as to these privacy claims, finding plaintiffs had demonstrated a reasonable probability of prevailing on the merits. On appeal, Rudolph seeks to line up the perfect shot, arguing all three claims must fail because there can be no objectively reasonable expectation of confidentiality in a conversation that occurs in a public place. Rudolph's marksmanship, apparently on target in the tundra, here is wide of the mark. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. FACTS

Plaintiff-Appellee SCI is a hunting and wildlife conservation organization with roughly 50,000 members and nearly 200 chapters across twenty-six different countries. Appellant's Excerpts of Record ("AER") 2. Defendant-Appellant Rudolph has been an SCI member for approximately twenty-five years and became a lifetime member of the organization in 2006. AER 56. The next year, Rudolph received the "Weatherby Award," which recognizes one individual annually for hunting achievement, outstanding support of conservation, and dedication to ethical sport hunting. Id. Rudolph has occupied a number of organizational positions throughout his tenure with SCI, culminating in consecutive one-year terms as President of SCI and the Safari Club International Foundation ("SCIF"). AER 2.

Following his second year at the helm of the group, Rudolph was hired to perform public relations as the Chief Communications Officer of SCI. AER 56. In 2012, however, a conflict arose between Rudolph and the organization, with various members accusing him of, among other things, adultery, making false statements, and intellectual property infringement. Id. Believing he had breached his duties of loyalty and care to the organization, SCI terminated Rudolph's contract, stripped him of his awards, and expelled him from membership. AER 2. Whipple was president of SCI at the time of Rudolph's expulsion and signed the letter officially terminating Rudolph's membership.¹ AER 57.

Stung and defiant, Rudolph sued SCI and several of its board members, including Whipple, in November 2012 in the U.S. District Court for the Western District of Pennsylvania. AER 62. The court dismissed the individual defendants on jurisdictional grounds and Rudolph thereupon refiled the lawsuit against the same individuals in the U.S. District Court for the District of Wyoming. These actions center on Rudolph's claims that SCI members defamed him maliciously in order to ruin his reputation and ultimately to run him out of the organization.

On February 20, 2013, while Whipple was a defendant in the Pennsylvania action, Rudolph invited him to meet for lunch at a restaurant in Los Angeles. AER 88. At that time, Whipple still considered Rudolph a good friend, and believed Rudolph felt the same way. Id. Indeed, Whipple recalled Rudolph as saying he sued him in Pennsylvania only because he was the current president of SCI. Id. In any event, Whipple said yes and they met at his residence before departing for Wineworks for Everyone, id. a wine store and restaurant that is open to the general public. AER 63.

Rudolph and Whipple met over lunch for approximately five hours. Id. There were several other patrons and employees in the restaurant at the time the meeting took place. AER 63–64. Whipple offered his own declaration in which he stated that those other patrons in the room were not within earshot of their conversation. Id. He also claimed he and Rudolph kept their voices fairly low, and that when servers approached, they stopped talking about anything substantive. AER 64. Rudolph, by contrast, insists his recordings demonstrate that the other patrons were close enough to overhear their conversation, and that staff and other patrons repeatedly walked past the table throughout the meeting. AER 58. Rudolph further claims Whipple never lowered his voice overtly or manifested body language that in any way would suggest he was attempting to maintain privacy or intended to keep the conversation confidential. Id.

Rudolph eventually steered the discussion to the ongoing litigation between himself, Whipple, and SCI. AER 63. They talked about Whipple's role in the underlying events and the conduct of various SCI board members. Unbeknownst to Whipple, Rudolph recorded both audio and video of the entire conversation ("Whipple Video"), which he later reduced into a film for public dissemination called: Rudolph v. Safari Club International SCI President Tells the Truth on Video Rudolph Exonerated!! ("Rudolph Video"). AER 58. The Rudolph Video allegedly contains clips confirming the allegations against Rudolph were false and malicious. Id. Importantly, Rudolph never asked for, nor obtained, Whipple's consent to record the conversation, and Whipple maintained he never would have given Rudolph his consent. AER 89.

Later that year, SCI and Whipple brought suit in the Orange County Superior Court alleging Rudolph violated section 632 of the California Penal Code, outlawing the recording of a "confidential communication" without the consent of all parties to the communication. See Cal. Penal Code § 632. Plaintiffs sought to enjoin Rudolph from introducing the Whipple Video into evidence in the Pennsylvania and Wyoming actions, and the state court issued a temporary restraining order ("TRO") on December 20, 2013. Following removal of the action to the district court and a hearing, the district court denied plaintiffs' request for a preliminary injunction. AER 3. The denial was affirmed by this Court on December 26, 2014. AER 75–81.

The TRO soon dissolved and Rudolph posted both videos on YouTube for public viewing, with SCI members being the target audience.² AER 58. Rudolph claims he created the videos for use in his litigation against SCI and various SCI board members, to inform SCI members about the details of the actions, to repair his reputation, and to stop those in power at SCI from wasting SCI's resources. Id.

Plaintiffs filed a First Amended Verified Complaint ("FAC") soon after the videos were posted, this time asserting seven claims for relief: (1) statutory invasion of privacy, Cal. Penal Code §§ 632, 637.2 ; (2) injunctive relief; (3) negligence per se; (4) common law invasion of privacy; (5) false light invasion of privacy; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress.

On March 13, 2014, Rudolph moved to strike the FAC pursuant to California's "anti-SLAPP"³ statute, see Cal. Civ. Proc. Code § 425.16, and concurrently moved to dismiss. Plaintiffs opposed the motions by relying only on the verified FAC, as opposed to invoking any other evidence in the record.

The district court, however, looked to the entire record, including a declaration submitted by Whipple with his ex parte application for a TRO, which also appeared as an attachment to the notice of removal. It then granted in part and denied in part Rudolph's motion to strike. AER 1–16. Rudolph moved to reconsider on the ground the court denied him due process by unilaterally scouring the record, digging up the declaration, and relying on it to decide his motions. Granting the motion to reconsider, the district court then proceeded to reaffirm its prior order, finding the Whipple declaration properly had been considered. AER 17–27.

On July 29, 2014, Rudolph timely appealed from that portion of the district court's July 2, 2014, order which denied Rudolph's motion to strike. Rudolph maintains the court erred in denying the motion on the three remaining claims: (1) statutory invasion of privacy, Cal. Penal Code §§ 632, 637.2 ; (2) negligence per se; and (3) common law invasion of privacy.

II. STANDARD OF REVIEW

This Court reviews the district court's denial of a special motion to strike de novo . See Graham – Sult v. Clainos , 756 F.3d 724, 735 (9th Cir. 2014) ; Martinez v. Metabolife Int'l , Inc. , 113 Cal.App.4th 181, 186, 6 Cal.Rptr.3d 494 (2003).

III. DISCUSSION

California's anti-SLAPP statute authorizes a "special motion to strike" any "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech ... in connection with a public issue." Cal. Civ. Proc....