1.MOTION FOR SUMMARY JUDGMENT AND/OR ADJUDICATION
Plaintiffs? Motion for Summary Judgment
On 11/14/16, Plaintiffs?Anthony Arrington,Kathleen Johnston, and their minor children Finn and Jack Arrington filed their First Amended Complaint.? They move for summary judgment as to the sole cause of action for invasion of privacy under PC 632 (a) in the FAC.
The Court Denies the motion on the ground that Plaintiffs have failed to carry their initial burden to make a prima facie showing that Defendants? recordings captured communications and that these communications were confidential such that Plaintiffs had a reasonable expectation of privacy in them.? Triable issues of material fact remain as to those issues, as discussed below.
PC 632 (a) makes it illegal to record a confidential communication intentionally and without consent of the parties thereto.
Subdivision (a) provides as follows:
?A?person who, intentionally and without the consent of all parties to a confidential communication, uses an?electronic amplifying or recording device to eavesdrop upon or?recordthe confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.?
?If the person has previously been convicted of a violation of this section or?Section 631,?632.5,?632.6,?632.7, or?636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000) per violation, by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.?
PC 632 (c) defines a confidential communication as follows:
?For the purposes of this section,??confidential communication? means any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.?
While the moving papers demonstrate that Defendants admit in their discovery responses to having made at least 5 recordings of excessive noises emanating from Plaintiffs? residence, Defendants do not concede that they recorded confidential communications or that Plaintiffs had a reasonable expectation of privacy therein.? And Plaintiffs have failed to carry their initial burden of production to show that confidential communications were recorded and that they had a reasonable expectation of privacy therein.
Defendants Brian and Linsey Carbone and Mark and Kelly Smith note correctly that, as a general rule, the question of whether a communication is confidential and whether the parties thereto have a reasonable expectation of privacy therein are normally mixed questions of law and fact.? (Knight v. CashCall Inc. (2014) 231 Cal.App.4th?112;?Hataishi v. First American Home Buyers Protection Corp.?(2014) 223 Cal.App.4th?1454.)?? As such that are typically not susceptible of resolution on a summary judgment motion, as a matter of law.
Plaintiffs fail to provide transcripts or audiotapes of the 5 recordings to prove that confidential communications were recorded.? Defendants admit only that they recorded excessive ?noises,? not that they recorded conversations.? And Plaintiffs make no showing that shouts, noises, and unintelligible sounds constitute confidential conversations.
Plaintiffs? own separate statement is confusing because Facts 2-6 imply that Defendants recorded children crying, loud noises, loud television volume, loud music, and noise disturbances. However, Plaintiffs cite no case law to make an initial showing that such random noise constitute confidential conversations.? As a matter of logic, it seems likely that recording noises, music, or television would not violate the plain language of PC 632 (a). Even if Defendants did record conversations, there is no showing that the content of the conversations was actually intelligible given the distance between the two residences in question.? Plaintiffs make no showing that unintelligible recordings of loud conversations would violate PC 632 (a).
Plaintiffs do not make a detailed showing of the key facts and relevant circumstances surrounding the recordings, as required in?Knight?and?Hataishi.? For example, it is unclear where and when the recordings were made, whether the Plaintiffs? and Defendants? windows were open, and whether the recordings were made from within Defendant Kelly Smith?s residence as she contends.? Without these details the Court cannot determine whether Plaintiffs had a reasonable expectation of privacy in their conversations.
Plaintiffs themselves admit in their own Facts 55-58 that they did receive prior notice of from some Defendants that their boys were sometimes too noisy.? Plaintiffs admit that Linsey Carbone visited Plaintiffs on the day they moved in and told Kathleen and Yvonne Johnston that she could hear conversations from the prior tenants and asked Kathleen to keep her windows closed to dampen the noise.? This notice raises the possibility that Plaintiffs did not have a reasonable expectation of privacy to the extent that they had been put on notice that excessive noises and sufficiently loud conversations conducted in their own residence could be overheard by neighbors from their adjoining residences.? So Plaintiffs? own separate statement shows that there are triable issues of material fact as to how loud Plaintiffs were speaking and whether Plaintiffs had been put on adequate notice of noise complaints such that they did not have a reasonable expectation of privacy in loud conversations or other noises.
If Plaintiffs did not have a reasonable expectation of privacy in excessively loud noises or excessively loud conversations, then it is immaterial that Defendants may have recorded them.? It would not constitute a violation of PC 632(a) to record a conversation that was so loud that Plaintiffs knew or should have known it could be overheard and recorded.? Furthermore, if Defendants recorded noises, shouts, music, or television sounds, those recordings arguably would not violate PC 632 (a) if the matters recorded did not constitute conversations or were so excessively loud that Plaintiffs knew or should have known they could be overheard.
Accordingly, Plaintiffs fail to carry their initial burden of production.? So the burden does not shift to Defendants and the Court need not consider Defendants? evidence in Opposition.? However, even assuming arguendo that Plaintiffs had made a prima facie showing, in Opposition Defendants do carry their burden to present evidence showing that triable issues of material fact remain as to whether Defendants recorded confidential communications and as to whether Plaintiffs had a reasonable expectation of privacy in those conversations.
Moving party give notice.
The Court, at the hearing, will set the matter for?? a motion to reclassify to limited jurisdiction on either February 2, or 9 2018.