Judge: Daniel S. Murphy, Case: 22STCV28411, Date: 2023-05-17 Tentative Ruling

Case Number: 22STCV28411    Hearing Date: May 17, 2023    Dept: 32

BACKGROUND

            On August 31, 2022, Plaintiff Maria Alexis Laforet filed this action against Defendant Trever John Braunberger, alleging (1) common law invasion of privacy, (2) constitutional invasion of privacy, and (3) intentional infliction of emotional distress.

            Plaintiff alleges that she met Defendant online near the end of 2021 and began a romantic relationship. Plaintiff lost interest in dating Defendant due to his degrading and controlling behavior. Plaintiff alleges that Defendant became obsessive and jealous. In April 2022, Defendant expressed an interest in meeting Plaintiff’s daughter, and Plaintiff agreed, believing it to be a gesture to make amends and a demonstration of Defendant’s interest in pursuing a serious relationship.

During this visit, Defendant accessed Plaintiff’s phone while Plaintiff was asleep and created a 100-page dossier of “evidence” that Defendant claimed proved Plaintiff’s infidelity. This document consists of messages and intimate photographs exchanged between Plaintiff and other individuals, such as Plaintiff’s friends and prior romantic partners. Defendant refused to delete the document and forced Plaintiff to apologize for supposedly cheating on him. Defendant used the document to keep Plaintiff in a relationship with him and to shame her for being involved with other men. Defendant also contacted Plaintiff’s prior romantic partners using information that he obtained from accessing her phone. After repeated failed attempts to get Defendant to delete the document, Plaintiff filed a harassment report with the U.S. Air Force, Defendant’s employer, a police report with the Manhattan Beach Police Department, a restraining order, and this action.  

Plaintiff’s complaint attaches as Exhibit A the entire unredacted document allegedly created by Defendant. This document reveals messages and intimate photographs that Plaintiff exchanged with other individuals. On October 14, 2022, Plaintiff filed the instant motion to seal portions of Exhibit A.

LEGAL STANDARD

“Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Ct., rule 2.550(c).) “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.” (Id., subd. (d).) “A record must not be filed under seal without a court order.” (Id., rule 2.551(a).)

DISCUSSION

            The Court finds that Plaintiff has an overriding privacy interest in messages and intimate photographs extracted from her phone which supports sealing the record. The Court finds that this interest will be prejudiced without sealing because Plaintiff’s private exchanges and explicit photographs would be exposed to the public, including the state bar and potential employers. Plaintiff’s proposal is narrowly tailored because Plaintiff has redacted only specific portions of Exhibit A. (See Mtn., Ex. B.) Defendant does not explain how the redactions are overbroad or render the complaint unintelligible. (See Opp. 7:5-10.) Neither party has identified, nor is the Court aware of, any less restrictive means to protect Plaintiff’s privacy.

            Defendant argues that Plaintiff has waived her right to seal Exhibit A by filing a public complaint with the unredacted version. Defendant relies on Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App.4th 588. “Although courts frequently define ‘waiver’ as the intentional relinquishment of a known right, waiver may also stem from conduct ‘which, according to its natural import, is so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.’” (Id. at p. 598.) Here, Plaintiff filed the instant motion to seal at the outset of the litigation, two months after filing the complaint, before Defendant demurred to the complaint. The Court does not find that Plaintiff has acted so inconsistently with the right to seal that she has waived such right.

CONCLUSION

            Plaintiff’s motion to seal is GRANTED.  Plaintiff is ordered to provide the Court a copy of the Complaint with the redacted  information and an unredacted copy of the complaint.   

BACKGROUND

            On August 31, 2022, Plaintiff Maria
Alexis Laforet filed this action against Defendant Trever John Braunberger,
alleging (1) common law invasion of privacy, (2) constitutional invasion of
privacy, and (3) intentional infliction of emotional distress.

            Plaintiff alleges that she met
Defendant online near the end of 2021 and began a romantic relationship.
Plaintiff lost interest in dating Defendant due to his degrading and
controlling behavior. Plaintiff alleges that Defendant became obsessive and
jealous. In April 2022, Defendant expressed an interest in meeting Plaintiff’s
daughter, and Plaintiff agreed, believing it to be a gesture to make amends and
a demonstration of Defendant’s interest in pursuing a serious relationship.

During this visit, Defendant accessed
Plaintiff’s phone while Plaintiff was asleep and created a 100-page dossier of “evidence”
that Defendant claimed proved Plaintiff’s infidelity. This document consists of
messages and intimate photographs exchanged between Plaintiff and other
individuals, such as Plaintiff’s friends and prior romantic partners. Defendant
refused to delete the document and forced Plaintiff to apologize for supposedly
cheating on him. Defendant used the document to keep Plaintiff in a relationship
with him and to shame her for being involved with other men. Defendant also
contacted Plaintiff’s prior romantic partners using information that he
obtained from accessing her phone. After repeated failed attempts to get
Defendant to delete the document, Plaintiff filed a harassment report with the
U.S. Air Force, Defendant’s employer, a police report with the Manhattan Beach
Police Department, a restraining order, and this action.  

On November 7, 2022, Defendant filed the
instant demurrer and motion to strike.

LEGAL STANDARD

A demurrer for sufficiency tests whether
the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When
considering demurrers, courts read the allegations liberally and in
context. (Taylor v. City of Los
Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.)
In a demurrer proceeding, the defects must be apparent on the face of the
pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A
demurrer tests the pleadings alone and not the evidence or other extrinsic
matters. (SKF Farms v. Superior Court
(1984) 153 Cal.App.3d 902, 905.) Therefore, it lies only where the defects
appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a
demurrer hearing is whether the complaint, as it stands, unconnected with
extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to
respond to a pleading, may serve and file a notice of motion to strike the
whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The
court may, upon a motion, or at any time in its discretion, and upon terms it
deems proper, strike (1) any irrelevant, false, or improper matter inserted in any
pleading and (2) all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.
(Id., § 436.) The grounds for moving to strike must appear on the face of
the pleading or by way of judicial notice. (Id., § 437.)

MEET AND CONFER

Before filing a demurrer or a motion to
strike, the demurring or moving party is required to meet and confer with the
party who filed the pleading demurred to or the pleading that is subject to the
motion to strike for the purposes of determining whether an agreement can be
reached through a filing of an amended pleading that would resolve the objections
to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court
notes that Defendant has complied with the meet and confer requirement. (See Huber
Decl. ¶ 2.)

DISCUSSION

I.
Invasion of Privacy

            “A privacy violation based on the
common law tort of intrusion has two elements. First, the defendant must
intentionally intrude into a place, conversation, or matter as to which the
plaintiff has a reasonable expectation of privacy. Second, the intrusion must occur
in a manner highly offensive to a reasonable person.” (Hernandez v.
Hillsides, Inc. (2009) 47 Cal.4th 272, 286.) “The right to privacy in the
California Constitution sets standards similar to the common law tort of
intrusion.” (Id. at p. 287.) “First, he must possess a legally protected
privacy interest . . . Second, the plaintiff's expectations of privacy must be
reasonable . . . Third, the plaintiff must show that the intrusion is so serious
in ‘nature, scope, and actual or potential impact [as] to constitute an
egregious breach of the social norms.’” (Ibid., citing Hill v.
National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35-37.) These
parallel claims can be distilled into two primary considerations: “(1) the
nature of any intrusion upon reasonable expectations of privacy, and (2) the
offensiveness or seriousness of the intrusion, including any justification and
other relevant interests.” (Id. at p. 288.)

            For purposes of the instant demurrer,
Defendant focuses on the reasonable expectation of privacy. Specifically, Defendant
argues that the messages and photos in question were admittedly sent by
Plaintiff to third parties, which removes any reasonable expectation of
privacy. Defendant admits that there is no California authority directly on point,
and his persuasive authority is distinguishable. Defendant relies on authority finding
diminished privacy interests in information recovered from third party devices.
(See, e.g., State v. Meredith, 337 Ore. 299, 301, 96 P.3d 342
(2004) [tracking of company-owned vehicle]; State v. Carle, 266 Ore.
App. 102, 110, 337 P.3d 904 (2014), rev. den., 356 Ore. 767, 345 P.3d 456
(2015) [digital copy of texts found on recipient’s phone]; United States v.
Maxwell
(C.A.A.F. 1996) 45 M.J. 406, 416 [search of AOL’s computer center].) Or,
Defendant’s authority refers to the “special needs” exception justifying a
search. (See United States v. Heckenkamp (9th Cir. 2007) 48 F.3d 1142.)

            By contrast, this case involves a direct
search of Plaintiff’s own phone and does not involve any special interest justifying
the search. The U.S. Supreme Court has expressly acknowledged an individual’s
privacy interests in their cellphone. (See Riley v. California (2014)
573 U.S. 373, 403 [“Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they hold for
many Americans ‘the privacies of life,’ . . . The fact that technology now
allows an individual to carry such information in his hand does not make the
information any less worthy of the protection for which the Founders fought”].)

            Under California’s standard, “[a] ‘reasonable’
expectation of privacy is an objective entitlement founded on broadly based and
widely accepted community norms.” (Hill, supra, 7 Cal.4th at p. 37.) The
extent of a privacy interest depends on the circumstances, and “customs,
practices, and physical settings surrounding particular activities may create or
inhibit reasonable expectations of privacy.” (Id. at p. 36.) Under this
objective standard, a privacy interest may exist for intimate materials stored
on one’s phone. There is no binding authority for the proposition that an individual
loses their reasonable expectation of privacy in intimate materials simply because
the materials are exchanged with another. In fact, California law recognizes
the privacy of such materials even if they are exchanged. (See Pen. Code, §
647(j)(4) [prohibiting the sharing of intimate images “under circumstances in
which the persons agree or understand that the image shall remain private”].) Nothing
suggests that individuals expect the intimate materials they share with a romantic
partner to be publicly distributed. Rather, the norm is to maintain the privacy
of intimate messages exchanged between two consenting adults.

            Additionally, Defendant could have
accessed any number of materials contained in Plaintiff’s phone, including
materials Plaintiff did not send to anyone. Certainly, Plaintiff has a
reasonable expectation of privacy in materials that she kept locked away behind
a passcode on her phone. (See FAC ¶¶ 39, 43.) It cannot be determined from the
pleadings alone that Defendant limited his search to messages sent to third
parties.    

            Lastly, Defendant argues that the
materials are not private because Plaintiff attached them to her publicly-filed
complaint. However, this does not negate the invasion of privacy that Defendant
has already allegedly committed. The tort would have been complete at the time
Defendant accessed Plaintiff’s phone. And Plaintiff is currently seeking to
seal the record to protect her privacy.

            In conclusion, the allegations in
the FAC sufficiently establish that Plaintiff has a reasonable expectation of
privacy in the intimate materials that Defendant allegedly extracted from her
phone. Therefore, the invasion of privacy claims are adequately pled.

II.
Intentional Infliction of Emotional Distress

To state a cause
of action for intentional infliction of emotional distress, a plaintiff must establish:
(1) outrageous conduct by the defendant; (2) the defendant’s intention of
causing, or reckless disregard of the probability of causing, emotional distress;
(3) the plaintiff’s suffering severe or extreme emotional distress; and (4)
actual and proximate causation of the emotional distress by the defendant’s outrageous
conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013)
222 Cal.App.4th 819, 832.) “For conduct to be outrageous, it must be so extreme
as to exceed all bounds of that usually tolerated by a civilized community.” (Faunce v. Cate (2013) 222 Cal.App.4th
166, 172.) “Severe emotional distress
[is] emotional distress of such substantial quantity or enduring quality that no
reasonable man in a civilized society should be expected to endure it.” (Fletcher
v. Western Life Insurance Co. (1970) 10 Cal.App.3d 376, 397.)

            Defendant
argues that it is not outrageous for him to access Plaintiff’s phone, “with the
code she apparently gave him,” to verify whether she was cheating on him. (Dem.
14:16-15:6.) If anything, Defendant argues, the materials he found confirmed
that Plaintiff was indeed exchanging intimate materials with other men. (Ibid.)
Defendant cannot offer his own interpretation of his conduct in order to escape
liability. These are factual issues outside the scope of a demurrer. The
complaint alleges that Defendant accessed the phone without consent and used
the materials to force Plaintiff to apologize, stay in a relationship with him,
and feel shame for messaging other men. (Compl. ¶¶ 39, 55, 64.) Plaintiff
pleaded with Defendant to delete the materials, but Defendant refused. (Id.,
¶ 54.) This is sufficient to demonstrate egregious conduct. There is no
indication from the complaint that Plaintiff gave Defendant her phone password or
that Defendant was merely seeking answers for himself, nor would that absolve
Defendant of liability as a matter of law.

            Plaintiff alleges that she has
suffered “shame, embarrassment, mortification, loneliness, panic attacks,
sleepless nights, loss of self-esteem, and despair. Plaintiff has suffered
extreme worry and anxiety over whether her family, friends, or employer would
see the document.” (Compl. ¶ 139.) Combined with the conduct described above, this
sufficiently establishes severe emotional distress. No reasonable person should
be expected to endure the emotional harm associated with being extorted through
stolen private materials. The IIED claim is adequately pled.

III.
Punitive Damages

“In an action for the breach of an
obligation not arising from contract, where it is proven by clear and convincing
evidence that the defendant has been guilty of oppression, fraud, or malice,
the plaintiff, in addition to the actual damages, may recover damages for the
sake of example and by way of punishing the defendant.” (Civ. Code, §
3294, subd. (a).) “‘Malice’ means conduct which is intended by the
defendant to cause injury to the plaintiff or despicable conduct which is
carried on by the defendant with a willful and conscious disregard of the
rights or safety of others.” (Id., subd. (c)(1).) “‘Oppression’ means
despicable conduct that subjects a person to cruel and unjust hardship in
conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud
is “intentional misrepresentation, deceit, or concealment of a material fact
known to the defendant with the intention on the part of the defendant of
thereby depriving a person of property or legal rights or otherwise causing
injury.” (Id., subd. (c)(3).)

The conduct described above sufficiently
establishes that Defendant acted maliciously and in conscious disregard for
Plaintiff’s rights. Therefore, the complaint alleges a basis for punitive
damages.

IV.
Attorneys’ Fees

“Except as attorney’s fees are
specifically provided for by statute, the measure and mode of compensation of
attorneys and counselors at law is left to the agreement, express or implied,
of the parties . . . .” (Code Civ. Proc., § 1021.)  

Plaintiff has not alleged a contractual or
statutory basis for attorneys’ fees and stipulates that this prayer may be
stricken.

CONCLUSION

            Defendant’s demurrer is OVERRULED.
Defendant’s motion to strike is GRANTED as to attorneys’ fees and DENIED as to
punitive damages.