Warden v. Kahn

• Decision Date: 14 December 1979
• Citation: 99 Cal.App.3d 805,160 Cal.Rptr. 471
• Court: California Court of Appeals
• Parties: Lew WARDEN, Plaintiff and Appellant, v. Melvin KAHN, Julius Kahn, Lorin Blum, Blum & Blum, a Law Corporation, Defendants and Respondents. Civ. 43440.

Page 471

160 Cal.Rptr. 471

99 Cal.App.3d 805

Lew WARDEN, Plaintiff and Appellant, v.Melvin KAHN, Julius Kahn, Lorin Blum, Blum & Blum, a Law Corporation, Defendants and Respondents.

Civ. 43440.

Court of Appeal, First District, Division 1, California.

Dec. 14, 1979.

Hearing Denied Feb. 7, 1980.

Lew M. Warden, Jr., San Leandro, for plaintiff and appellant.

Bruce A. Bailey, Demanes & Bailey, Burlingame, Moore, Clifford, Wolfe, Larson & Trutner, J. Jay Schnack, Oakland, for defendants and respondents.

GRODIN, Associate Justice.

PlaintiffLew Warden's appeal is from the superior court's judgment dismissing his action against defendantsMelvin Kahn, Julius Kahn, Lorin Blum, and Blum & Blum, a law corporation.That judgment includes the dismissal of plaintiff's first amended complaint on the ground that it fails to state a cause of action against any of the defendants, and the dismissal of plaintiff's second amended complaint on the ground that its contents exceeded the permission which the court had granted for the filing of an amended pleading.Our conclusion is that the court did not abuse its discretion in dismissing the second amended complaint or the first amended complaint as to defendants other than Melvin Kahn, but that the first amended complaint stated a cause of action against defendantMelvin Kahn under certain provisions of the Invasion of Privacy Act,Penal Code section 630 et seq., and should not have been dismissed as to him.

PROCEDURAL BACKGROUND

The first amended complaint alleged that plaintiff Warden, an attorney at law, had represented defendantMelvin Kahn from 1964 to 1974 in "disputes and litigations" between Melvin Kahn and others; that following enactment of the Invasion of Privacy Act in 1967Melvin Kahn"did secretly and without the knowledge and consent of plaintiff record telephone conversations between plaintiff and said Melvin Kahn" concerning such matters; that Melvin Kahn made the recordings of such conversations available to the defendantJulius Kahn; and that Julius Kahn communicated the contents thereof and made the recordings available to the defendantsLorin Blum and Blum & Blum, a law corporation, for the use of defendantJulius Kahn in "presenting fraudulent claims against plaintiff, and to extort settlements and/or monetary concessions from plaintiff to said Julius Kahn to which said Julius Kahn was not justly entitled."The prayer for relief sought judgment under Penal Code section 637.2 for damages and injunctive relief.

DefendantMelvin Kahn filed an answer to the first amended complaint by which he admitted recording "important telephone conversations between himself and plaintiff," but asserted (among other defenses) that the recording was with the knowledge and consent of plaintiff.DefendantJulius Kahn, however, demurred generally to the first amended complaint.On January 24, 1977, the trial court sustained the demurrer with 30 days' leave to amend.On February 4, 1977, Melvin Kahn moved for summary judgment and judgment on the pleadings.On February 22, 1977, before the motion could be heard, plaintiff filed a second amended complaint, 25 pages long, alleging extensive factual matters unrelated to the first amended complaint, and presenting a potpourri of additional theories and causes of action based on conspiracy, including fraud, deceit, defamation, malicious prosecution, intentional interference with contracts and business relations, and intentional and wrongful infliction of severe emotional and mental distress.Allegations with respect to recorded telephone conversations appeared in the new pleading as one of the many overt acts which ripened into the conspiracy.Melvin Kahn moved to strike the second amended complaint on the ground that, except for the allegations concerning the recordings, the new pleading set forth "wholly different causes of action," and on May 16, 1977, the trial court entered an order granting the motion and at the same time dismissing the first amended complaint for failure to state a cause of action.Judgment was entered accordingly, and plaintiff filed timely notice of appeal.

Appellant's challenge to the propriety of the trial court's action in striking his second amended complaint need not detain us long.The first amended complaint was founded solely on defendants' alleged violation of the Invasion of Privacy Act.The second amended complaint stated entirely new causes of action, alleging violation of an entirely different primary right, and was based upon an entirely different set of facts.Although, of course, great liberality will ordinarily be allowed in the amendment of a complaint after the sustaining of a demurrer, it is settled law that a party may not file an amended complaint which states such an entirely new and different cause of action.(SeeSmeltzley v. Nicholson Mfg. Co.(1977)18 Cal.3d 932, 934, 136 Cal.Rptr. 269, 559 P.2d 624;Austin v. Massachusetts Bonding & Insurance Co.(1961)56 Cal.2d 596, 600-601, 15 Cal.Rptr. 817, 364 P.2d 681;Klopstock v. Superior Court(1941)17 Cal.2d 13, 20-21, 108 P.2d 906;Barba v. Superior Court(1966)239 Cal.App.2d 572, 577-578, 49 Cal.Rptr. 60;Hayutin v. Weintraub(1962)207 Cal.App.2d 497, 506-507, 24 Cal.Rptr. 761;Lewis & Queen v. S. Edmondson & Sons(1952)113 Cal.App.2d 705, 711, 248 P.2d 973.)The superior court did not err in striking plaintiff's second amended complaint.¹

We return, therefore, to the first amended complaint and consider whether it was properly dismissed.The Invasion of Privacy Act upon which that complaint was based was adopted in 1967 and replaced what one commentator has characterized as a "hodgepodge of statutes."(Van Boven, Electronic Surveillance in California: A Study in State Legislative Control(1969)57 Cal.L.Rev. 1182, 1190(hereafter "Van Boven").)The dominant objective of the act, as reflected in its preamble, is "to protect the right of privacy of the people of this state."(Pen.Code, § 630.SeePeople v. Conklin(1974)12 Cal.3d 259, 270, 114 Cal.Rptr. 241, 522 P.2d 1049;Tavernetti v. Superior Court(1978)22 Cal.3d 187, 194, 148 Cal.Rptr. 883, 583 P.2d 737.See alsoCal.Const., art. I, § 1.)While Congress adopted a partially congruent statute, title III of the Omnibus Crime Control and Safe Streets Act of 1968(18 U.S.C.A. §§ 2510-2520), the federal enactment does not preclude the application of state standards which, as in the case of California's statute, apply more restrictive rules.(People v. Conklin, supra, 12 Cal.3d at 271-272, 114 Cal.Rptr. 241, 522 P.2d 1049.See alsoCarr, The Law of Electronic Surveillance(1977)§ 2.04.)

The Invasion of Privacy Act provides criminal penalties for the offenses which it describes, but in addition, in section 637.2, it establishes a private cause of action on the part of "(a)ny person who has been injured by a violation of this chapter . . . against the person who committed the violation."Appellant claims that his first amended complaint states facts constituting a violation of sections 631and632, the relevant portions of which are set forth in the margin.² Insofar as section 631 is concerned, appellant's claim is without merit.That section, which is quite ambiguous, ³ has been held to apply only to eavesdropping by a third party and not to recording by a participant to a conversation.(Rogers v. Ulrich(1975)52 Cal.App.3d 894, 125 Cal.Rptr. 306.)

Section 632 is a different matter.Its provisions "are much more straightforward than section 631, probably because they are of later origin."(Van Boven, supra, 57 Cal.L.Rev.at 1203.)The language of that section applies to any person who "intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, Eavesdrops upon or records such confidential communication."This language has uniformly been construed to prohibit one party to a confidential communication from recording that communication without knowledge or consent of the other party.(Forest E. Olson, Inc. v. Superior Court(1976)63 Cal.App.3d 188, 133 Cal.Rptr. 573(Second District);People v. Wyrick(1978)77 Cal.App.3d 903, 909, 144 Cal.Rptr. 38(Third District);see alsoRogers v. Ulrich, supra, 52 Cal.App.3d at 899, 125 Cal.Rptr. 306(First District)(dicta).)⁴ This construction is not only upon the language of section 632 itself, but, as Justice Ashby's opinion in Olson notes, ⁵ upon legislative history and other provisions of the statute.The language derives from former section 653j(Stats.1963, ch. 1886, § 1, p. 3871), which applied only to a person or agent "not a party to the communication," who eavesdropped or recorded a confidential communication "without the consent of any party."Since the quoted language represents practically the only changes from the former statute, the implication of legislative intent to make section 632 applicable to participant recording seems reasonably substantial.That implication is underscored by section 633.5, which provides that "(n)othing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of (certain specified crimes)."As the appellate court noted in Forest E. Olson, supra, the presence of section 633.5 in the Invasion of Privacy Act is inexplicable except on the assumption that the Legislature intended at least some portion of the Act to apply to participant recording.⁶(63 Cal.App.3d at 192, 133 Cal.Rptr. 573.)

Finally, coverage of participant recording is consistent with the legislative policy declared in section 630"to protect the right of privacy of the people of this state."While it is true that a person participating in what he reasonably believes to be a confidential communication bears the risk that the other party...