Judge: Curtis A. Kin, Case: 20STCV18935, Date: 2023-01-24 Tentative Ruling

Case Number: 20STCV18935    Hearing Date: January 24, 2023    Dept: 72

MOTION FOR JUDGMENT ON THE PLEADINGS

Date:               1/24/23 (8:30 AM)                             

Case:               Doris Peniche v. California Highway Patrol et al. (20STCV18935)

TENTATIVE RULING:

Defendant Melissa Hammond’s Motion for Judgment on the Pleadings is GRANTED IN PART.

Defendants Robert Ruiz and Matt Lentz’s Motion for Judgment on the Pleadings is GRANTED IN PART.

I.                   DEFENDANT HAMMOND’S MOTION FOR JUDGMENT ON THE PLEADINGS

A.    First Cause of Action – Intrusion into Private Affairs

A cause of action for intrusion into private affairs has two elements: “(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.)

Plaintiff Doris Peniche alleges that, upon viewing the sexual images of plaintiff, defendant and lieutenant Melissa Hammond told Sergeant Connie Guzman that the rumors that plaintiff was having an affair with her brother-in-law have been confirmed. (FAC ¶¶ 15, 16, 18.) Hammond also allegedly told Sergeant Guzman that Hammond “had seen videos and pictures of Plaintiff with Plaintiff’s brother-in-law and several other men in various sexual positions that Plaintiff likes.” (FAC ¶ 16.)

While Hammond’s viewing of the photos may have been unintentional, as co-defendants Robert Ruiz and Matt Lentz allegedly shared the sexual images and videos with Hammond (FAC ¶ 16), Hammond allegedly intruded into plaintiff’s private sexual affairs by intentionally “confirming” the rumors that plaintiff was having an affair with her brother-in-law. (FAC ¶¶ 17, 25.) These allegations appear sufficient to make out an intrusion into plaintiff’s privacy and, indeed, Hammond cites no law proscribing any particular form or type that intrusion may take.

Further, the offensiveness of the intrusion is sufficiently alleged, as Hammond’s purported confirmation was false. (FAC ¶ 21.) Plaintiff alleges that the images depict her with one man who is not her brother-in-law. (FAC ¶¶ 3, 15.) Further, plaintiff alleges that the defendant California Highway Patrol (“CHP”) obtained her cell phone pursuant to a search warrant in an investigation into unauthorized overtime claims. (FAC ¶¶ 1, 12.) The Court that issued the search warrant allegedly ordered the sealing of evidence obtained pursuant to the warrant and that law enforcement had no right to distribution. (FAC ¶¶ 12, 13.) Hammond allegedly violated the sealing order. (FAC ¶¶ 16, 17.)

The motion as to the first cause of action is DENIED.

B.                 Second Cause of Action – Public Disclosure of Private Facts and Third Cause of Action – Distribution of Private Sexually Explicit Materials

Hammond contends the second cause of action for public disclosure of private facts is inadequately stated because plaintiff does not allege facts that were disclosed, as Hammond’s representations to Guzman were allegedly false, or disclosure to a large number of persons or to the public. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214 [elements of public disclosure tort are (1) public disclosure (2) of a private fact (3) which would be offensive and objectionable to the reasonable person and (4) which is not of legitimate public concern]; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828 [public disclosure of private facts “must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few”].)

Hammond also contends that the third cause of action for distribution of private sexually explicit matters is inadequately stated because plaintiff does not allege that Hammond distributed plaintiff’s sexual images and videos to anyone else. (See Civ. Code § 1708.85(a) [cause of action lies against “a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent” upon specified conditions].)

Conceding that Hammond has “raised reasonable issues,” plaintiff does not address the merits of Hammond’s motion as to the second and third causes of action. (Opp. at 7:19-21.) Instead, plaintiff seeks leave to amend to state a cause for false light invasion of privacy in place of the second and third causes of action. (Opp. at 8:26-27.)

Accordingly, the motion as to the second and third causes of action is GRANTED.

C.                 Fourth Cause of Action – Negligence, Fifth Cause of Action – Negligent Infliction of Emotional Distress, and Ninth Cause of Action – Negligence Per Se

Hammond contends that the fourth cause of action for negligence, the fifth cause of action for negligent infliction of emotional distress, and ninth cause of action for negligence per se fail because plaintiff did not allege that Hammond owed her a duty.

A duty of care can arise through statute or common law. (Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 920.) Plaintiff maintains that Hammond owed her a duty under Penal Code § 1546.1, part of the California Electronic Communications Privacy Act (“CalECPA”). (FAC ¶ 55.)

Under Penal Code §§ 1546.1(a)(3) and 1546.1(b)(1), a “government entity” shall not access electronic device information by means of physical interaction or electronic communication with the electronic device,” unless the government entity obtains a warrant. “Government entity” is defined as “a department or agency of the state or a political subdivision thereof, or an individual acting for or on behalf of the state or a political subdivision thereof.” (Pen. Code § 1546(i).) A warrant for electronic information “shall require that any information obtained through the execution of the warrant that is unrelated to the objective of the warrant shall be sealed and shall not be subject to further review, use, or disclosure except pursuant to a court order….” (Pen. Code § 1546.1(d)(2).) Plaintiff alleges that the objective of the warrant was to “correlate cellular activity with the CHP’s theory that officers were obtaining unauthorized CALTRANS overtime.” (FAC ¶ 12.)

Plaintiff alleges that Hammond violated Penal Code § 1546.1(d)(2) by releasing information unrelated to the overtime investigation. Plaintiff’s invocation of Penal Code § 1546.1(d)(2) is unavailing. Even if plaintiff sufficiently alleges that Hammond was “acting for or on behalf of the state or a political subdivision thereof” (Pen. Code § 1546(i)), there is no private right of action under the CalECPA. (Sanchez v. Los Angeles Department of Transportation (9th Cir. 2022) 39 F.4th 548, 562.) The CalECPA only allows the California Attorney General to commence a civil action to compel a government entity to comply with the CalECPA. (See Pen. Code § 1546.4(b).)

For the foregoing reasons, plaintiff cannot base any negligence-based cause of action on a purported violation of the CalECPA. The motion as to the ninth cause of action is GRANTED.

With respect to the fourth and fifth causes of action for negligence and negligent infliction of emotional distress, the California Supreme Court has held that it is the law in California that “there is no duty to avoid negligently causing emotional distress to another….” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Further, “[D]amages for emotional distress are recoverable only if the defendant has breached some other duty to the plaintiff.” (Id. at 984.) Such a “duty may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Id. at 985.)

With respect to the fourth cause of action, arguably, plaintiff alleges a general duty of care under Civil Code § 1714(a). “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person….” (Civ. Code § 1714(a).) Nevertheless, even if Hammond owed plaintiff a duty of care, plaintiff alleges damages in the form of emotional distress. (FAC ¶ 22.)

Plaintiff does not allege any law, assumption of any duty, or special relationship imposing any duty on Hammond to refrain from causing plaintiff emotional distress. Accordingly, the motion as to the fourth and fifth cause of action is GRANTED.

In sum, with respect to the negligence-based causes of action, the motion as to the fourth, fifth, and ninth causes of action is GRANTED.

D.    Sixth Cause of Action – Intentional Infliction of Emotional Distress

Hammond maintains that plaintiff’s allegations do not rise to the level of outrageous because Hammond’s statements to Sergeant Guzman amount to gossip. “While the outrageousness of a defendant's conduct normally presents an issue of fact to be determined by the trier of fact [citation], the court may determine in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” (Ibid.)

Plaintiff alleges that Hammond knew that plaintiff’s sexual images and videos did not show that plaintiff was engaged in an affair with her brother-in-law or several other men. (FAC ¶ 20.) Despite this knowledge, Hammond allegedly confirmed prior rumors that plaintiff was engaged in an affair with her brother-in-law. (FAC ¶¶ 15, 16, 18.) For pleading purposes, plaintiff’s allegations against Hammond rise to the level of outrageous.

The motion as to the sixth cause of action is DENIED.

E.                 Seventh Cause of Action – Defamation Per Se and Eighth Cause of Action - Defamation Per Quod

While Civil Code § 46(4) defines slander to include a false, oral utterance imputing a “want of chastity,” Hammond argues that the slander per se statute must be read in the context of the present day. Hammond maintains that adultery is no longer a crime. However, as Hammond admits, there is no statutory definition of “chastity.” (Motion at 24:3.)

Plaintiff alleges that Hammond falsely told Sergeant Guzman that plaintiff was having an affair with her brother-in-law. (FAC ¶¶ 16, 18) “[T]o speak of a married woman as the paramour of a man not her husband is, of itself, to impute to her a want of chastity.” (McKinney v. Roberts (1885) 68 Cal. 192, 193.) McKinney has not been overturned, and a reasonable fact finder (even in this present day) could agree with this view of chastity. Accordingly, plaintiff sufficiently alleges defamation per se.

With respect to the defamation per quod cause of action, Hammond maintains that plaintiff fails to allege facts supporting actual damages. (See Regalia v. The Nethercutt Collection (2009) 172 Cal.App.4th 361, 367.) Plaintiff alleges that she suffered harm to her reputation as a result of Hammond’s statements to Sergeant Guzman. (FAC ¶¶ 51-53.) These allegations are sufficient for pleading purposes.

Hammond also contends that the alleged defamatory communication was substantially true. The truth of the statements is a complete defense, notwithstanding any slight inaccuracies, as long as the substance of the statement is true. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.) Hammond characterizes the gravamen of the alleged defamation as plaintiff’s extramarital affair. However, for pleading purposes, plaintiff sufficiently alleges that the defamation arises not just from the extramarital affair but also with the identity and number of the other alleged participants, i.e., plaintiff’s brother-in-law and several other men. Hammond’s statements regarding the identity and number of the other participants alleged to be false. (FAC ¶ 20.)

The motion as to the seventh and eighth causes of action is DENIED.

F.      Conclusion

With respect to defendant Hammond, her motion is DENIED as to the first cause of action for intrusion into private affairs, sixth cause of action for intentional infliction of emotional distress, seventh cause of action for defamation per se, and eighth cause of action for defamation per quod.

The motion is GRANTED as to the second cause of action for public disclosure of private facts, third cause of action for distribution of private sexually explicit materials, fourth cause of action for negligence, fifth cause of action for negligent infliction of emotional distress, and ninth cause of action for negligence per se.

With respect to the second and third causes of action, plaintiff seeks leave to add a false light invasion of privacy cause of action. A false light cause of action is essentially superfluous when a defamation cause of action is also asserted. (Jackson v. Mayweather (2017) 10 Cal.App.5th 1240, 1264.) A “merely duplicative pleading which adds nothing to the complaint by way of fact or theory” is not sufficient to survive demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.) Because a motion for judgment on the pleadings is the functional equivalent of a demurrer (Dudley v. Department of Transp. (2001) 90 Cal.App.4th 255, 259), plaintiff’s request for leave to amend is DENIED.

With respect to the fourth, fifth, and ninth causes of action sounding in negligence, the Court will hear from plaintiff on how the First Amended Complaint can be amended, if at all, before deciding whether to grant leave to amend.

II.                DEFENDANTS RUIZ AND LENTZ’S MOTION FOR JUDGMENT ON THE PLEADINGS

A.    First Cause of Action – Intrusion into Private Affairs

A cause of action for intrusion into private affairs has two elements: “(1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.” (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.)

Plaintiff Doris Peniche alleges that defendants and sergeants Robert Ruiz and Matthew Lentz viewed sexual images and videos of plaintiff on plaintiff’s cell phone and then shared them with defendant Melissa Hammond. (FAC ¶¶ 16, 18.) While Ruiz and Lentz’s viewing of the images and videos may have been pursuant to a search warrant, the images and videos were allegedly not related to the investigation of unauthorized overtime claims, the objective of the search warrant. (FAC ¶¶ 1, 12, 15.) Plaintiff also alleges that the images and videos were subject to a sealing order by the Court, which Ruiz and Lentz violated. (FAC ¶¶ 12, 13, 16, 17.)

Accordingly, plaintiff sufficiently alleges that Ruiz and Lentz intruded into plaintiff’s private sexual affairs by disseminating her images and videos to Hammond and that such intrusion is highly offensive to a reasonable person. (FAC ¶¶ 16, 18, 26.)

The motion as to the first cause of action is DENIED.

B.     Second Cause of Action – Public Disclosure of Private Facts

For a public disclosure of private facts cause of action, “the tort must be accompanied by publicity in the sense of communication to the public in general or to a large number of persons as distinguished from one individual or a few.” (Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 828.)

While “possibly other persons” disseminated plaintiff’s private information, plaintiff alleges that Ruiz and Lentz disseminated the images to only one other person, Hammond. (FAC ¶ 16.) Accordingly, plaintiff does not sufficiently allege public disclosure upon which the second cause of action can be based.

The motion as to the second cause of action is GRANTED.

C.     Third Cause of Action – Distribution of Private Sexually Explicit Materials

Civil Code § 1708.85(a) states: “A private cause of action lies against a person who intentionally distributes by any means a photograph, film, videotape, recording, or any other reproduction of another, without the other’s consent, if (1) the person knew, or reasonably should have known, that the other person had a reasonable expectation that the material would remain private, (2) the distributed material exposes an intimate body part of the other person, or shows the other person engaging in an act of intercourse, oral copulation, sodomy, or other act of sexual penetration, and (3) the other person suffers general or special damages as described in Section 48a.”

Ruiz and Lentz contend that the word “distribute” in Civil Code § 1708.85(a) requires sharing with more than one person. While the exceptions to liability contained in Civil Code § 1708.85(c) may pertain to public dissemination and the relief in Civil Code § 1708.85(d) includes injunctive relief ordering the defendant to cease distribution of the material, defendants concede that Civil Code § 1708.85(a) does not define the word “distribute” and no appellate cases have yet to address the meaning.

As the statute is written, intentional distribution of private photographs or records by any means may be grounds for liability. (Civ. Code § 1708.85(a).) Plaintiff sufficiently alleges that Ruiz and Lentz distributed plaintiff’s private sexual images and videos to Hammond. (FAC ¶ 16.)

The motion as to the third cause of action is DENIED.

D.                Fourth Cause of Action – Negligence, Fifth Cause of Action – Negligent Infliction of Emotional Distress, and Ninth Cause of Action – Negligence Per Se

Ruiz and Lentz contend that the fourth cause of action for negligence, the fifth cause of action for negligent infliction of emotional distress, and ninth cause of action for negligence per se fail because plaintiff did not allege that they owed her a duty.

The discussion set forth above with respect to Hammond applies equally to Ruiz and Lentz. Accordingly, the motion as to the fourth, fifth, and ninth causes of action is GRANTED.

E.     Sixth Cause of Action – Intentional Infliction of Emotional Distress

Ruiz and Lentz contend that the sixth cause of action fails because sharing plaintiff’s sexual images and videos does not go beyond “all possible bounds of decency.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496.)

Here, plaintiff alleges that her sexual images and videos were unrelated to the overtime investigation, the reason why a search warrant was issued for plaintiff’s cell phone. (FAC ¶¶ 1, 12, 15.) Despite the alleged lack of relevance to the overtime investigation, Ruiz and Lentz shared the private information with Hammond with the intention to cause plaintiff emotional distress. (FAC ¶¶ 16, 22, 44.) Plaintiff allegedly suffered severe emotional distress because of their actions. (FAC ¶ 45.) Plaintiff’s allegations rise to the level of outrageous.

The motion as to the sixth cause of action is DENIED.

F.                  Seventh Cause of Action – Defamation Per Se and Eighth Cause of Action - Defamation Per Quod

Ruiz and Lentz contend that the alleged defamatory communication, telling Hammond that they found videos of plaintiff engaged in sexual activity with her brother-in-law and other men, was substantially true. (FAC ¶ 18.) The truth of the statements is a complete defense, notwithstanding any slight inaccuracies, as long as the substance of the statement is true. (Raghavan v. Boeing Co. (2005) 133 Cal.App.4th 1120, 1132.) Ruiz and Lentz characterize the gravamen of the alleged defamation as plaintiff’s engaging in sexual activity. However, for pleading purposes, plaintiff sufficiently alleges that the defamation arises not just from the sexual activity but also with the identity and number of the other alleged participants, i.e., plaintiff’s brother-in-law and other men. Ruiz and Lentz’s statements regarding the identity and number of the other participants are allegedly false. (FAC ¶¶ 3, 15.)

The motion as to the seventh and eighth causes of action is DENIED.

G.    Conclusion

With respect to defendant Ruiz and Lentz, their motion is DENIED as to the first cause of action for intrusion into private affairs, third cause of action for distribution of private sexually explicit materials, sixth cause of action for intentional infliction of emotional distress, seventh cause of action for defamation per se, and eighth cause of action for defamation per quod.

The motion is GRANTED as to the second cause of action for public disclosure of private facts, fourth cause of action for negligence, fifth cause of action for negligent infliction of emotional distress, and ninth cause of action for negligence per se.

The Court will hear from plaintiff on how the First Amended Complaint can be amended before deciding whether to grant leave to amend.