Filed 2/26/07
IN THE SUPREME COURT OF CALIFORNIA
NICOLE TAUS,
Plaintiff and Respondent,
S133805
v.
) Ct.App.
1/2
A104689
ELIZABETH LOFTUS et al.,
Solano
County
Defendants and Appellants.
Super. Ct. No. FCS021557
Plaintiff in this action, Nicole Taus, was the unnamed subject of a “case
study” set forth in a prominent scholarly article describing her apparent recovery
of a long-repressed memory of childhood abuse. (The article referred to plaintiff
as “Jane Doe.”) Defendants are the authors and publishers of two subsequent
articles that, in questioning the basic premise advanced by the initial article,
disclosed various aspects of plaintiff’s family background and personal life but did
not disclose her identity. (Like the initial article, defendants’ articles referred to
plaintiff as “Jane Doe.”)
Shortly after the later articles were published, plaintiff filed the present
action against defendants, challenging defendants’ activities in investigating,
publishing, and thereafter publicly discussing their articles and investigation. The
complaint asserted that defendants improperly had invaded plaintiff’s privacy and
committed other tortious conduct by investigating plaintiff’s background and
1
discovering and disclosing information concerning her private life without her
consent.
Defendants responded by filing special motions to strike the complaint
pursuant to California’s anti-SLAPP statute (Code Civ. Proc., § 425.16),1 asserting
that the complaint sought to impose liability upon them for actions that were
undertaken in furtherance of their constitutional right of free speech. The trial
court denied the motions in large part, concluding that the bulk of plaintiff’s
claims should be permitted to go forward. On appeal, the Court of Appeal held
that most of the claims set forth in the complaint should be dismissed under the
anti-SLAPP statute, but also concluded that the suit could proceed with regard to
four aspects of defendants’ conduct that were challenged in the complaint.
Following the Court of Appeal’s decision, only defendants sought review in
this court. The petition for review contended that although the Court of Appeal
was correct in dismissing the bulk of plaintiff’s claims, the appellate court had
erred in permitting any aspect of the action to go forward. We granted review to
consider whether the Court of Appeal correctly determined that plaintiff’s suit
could proceed as to the four points challenged by defendants.
As explained hereafter, we conclude that the Court of Appeal erred with
respect to three of those claims, but that it correctly determined that dismissal is
1
As explained in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 57, SLAPP is an acronym for “strategic lawsuits against public
participation.” Finding that there had been “a disturbing increase in lawsuits
brought primarily to chill the valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances” (Code Civ. Proc., § 425.16,
subd. (a)), the Legislature in 1992 enacted the motion-to-strike procedure now
embodied in section 425.16, subdivisions (b) – (i).
All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2
not warranted at this juncture with regard to one of the claims advanced by
plaintiff. Accordingly, we shall reverse in part and affirm in part the judgment
rendered by the Court of Appeal.
I
The relevant facts in this case are set forth in some detail in the Court of
Appeal’s opinion in this matter, and because neither party has taken issue with that
court’s statement of facts, we shall adopt that portion of the Court of Appeal’s
opinion, with minor supplementation and stylistic changes.
A. Background — Published Articles
The dispute between these parties arises out of the publication of three
articles that appeared in two scientific journals between May 1997 and August
2002.
1. The 1997 Child Maltreatment Article
The May 1997 issue of Child Maltreatment, a scientific journal published
by the American Professional Society on the Abuse of Children, contains an essay,
authored by David Corwin and Ema Olafson,2 entitled Videotaped Discovery of a
Reportedly Unrecallable Memory of Child Sexual Abuse: Comparison With a
Childhood Interview Videotaped 11 Years Before (2 Child Maltreatment 91
[hereafter the Child Maltreatment article]).
The Child Maltreatment article contains the following summary of its
contents: “This article presents the history, verbatim transcripts, and behavioral
observations of a child’s disclosure of sexual abuse to Dr. David Corwin in 1984
2
At the time the Child Maltreatment article was published, Corwin (a
psychiatrist) and Olafson (a psychologist) were, respectively, the director and co-
director of the program on childhood victimization and the law at the University of
Cincinnati College of Medicine.
3
and the spontaneous return of that reportedly unrecallable memory during an
interview between the same individual, now a young adult, and Dr. Corwin 11
years later. Both interviews were videotape recorded. The significance,
limitations, and clinical implications of this unique case study are discussed. Five
commentaries by researchers from differing empirical perspectives who have
reviewed these videotape-recorded interviews follow this article.” (Child
Maltreatment article, supra, at p. 91.)
The young woman who is the subject of the Child Maltreatment article was
referred to throughout the article as “Jane Doe” (hereafter sometimes just “Jane”),
and all the names of persons and places relating to her story were changed with the
exception of the identity of Corwin, who conducted the interviews. According to
the article, Corwin became involved in Jane’s case in 1984 after Jane’s father
accused her mother of physically and sexually abusing her. The allegations were
made in the context of a custody dispute, and Corwin was appointed by the court
to conduct an evaluation.
The Child Maltreatment article contains excerpts from three interviews
conducted by Corwin in 1984 when Jane was six years of age. During each
interview, Jane told Corwin that her mother had rubbed her finger inside Jane’s
vagina while giving her a bath. The specific excerpts that are repeated in the
article include Jane reporting that her mother first had done this to her when she
was three, that these actions hurt, and that her mother had warned she would do
“something” to Jane if Jane told her father what her mother had done. During the
third interview, Jane consistently maintained that nobody told her to say these
things about her mother and that she was not lying. At one point, Corwin inquired
whether Jane’s mother had said anything when she placed her finger there. Jane
reported that her mother asked: “That feel good?,” and that Jane had replied no.
Jane also said that this had happened on more than 20 occasions and closer to 99
4
during the time she lived with her mother. (Child Maltreatment article, supra, at
pp. 94, 100-101.)
The excerpts from the 1984 interviews are interspersed with analysis and
with Corwin’s conclusions, first drawn and testified to in 1984, that: (1) Jane was
physically and sexually abused by her mother, and (2) Jane’s mother falsely
accused Jane’s father of abusing Jane and attempted to coerce Jane into verifying
the false accusation. The authors of the Child Maltreatment article reported that
their article relied upon background sources in addition to the 1984 interviews,
including reports by Child Protective Services and the police, court files and
decisions pertaining to the parents’ divorce and contentious custody battle, and
reports by other evaluators and therapists. According to the article, Jane’s
statements to Corwin were consistent with statements she previously made to
other evaluators. Jane’s prior reports of inappropriate behavior by her mother
included “ ‘striking her on several parts of her body, burning her feet on a hot
stove, and invading and hurting her genitals and anus with her hands.’ ” (Child
Maltreatment article, supra, at p. 95.)
The Child Maltreatment article also contains a transcript of an interview of
Jane conducted by Corwin on October 15, 1995, when Jane was 17 years of age.
According to the article, the 1995 interview was arranged after Corwin contacted
Jane and her father to obtain their consent to continue to use the 1984 videotaped
interviews for “professional education,” and learned that Jane could not remember
the events that were the subject of those earlier interviews and wanted to view the
1984 videotapes. (Child Maltreatment article, supra, at p. 98.)
Jane’s foster mother accompanied her to the interview with Corwin, who
agreed to show the two of them the videotapes of the 1984 interviews. (A local
therapist also was present during the interview.) At the outset of the 1995
interview and before viewing the 1984 videotapes, Jane stated that she did
5
remember statements and allegations she had made during those interviews but
that “[i]t’s the memory of if what I said was true that I’m having a problem with.”
(Child Maltreatment article, supra, at p. 104.) Corwin asked Jane to share what
she could recall about that period of time concerning the 1984 interviews and the
things she may have said then. Jane described the room where she was
interviewed in 1984 and a sweatshirt she may have worn, and began to recount
some of the allegations she had made. She recalled accusing her mother of
abusing her by burning her feet on a stove but stated she could not remember
whether that was in fact how her feet were burned. Jane told Corwin that she
recently had been in contact with her mother, who denied all the allegations of
abuse. When Corwin focused the discussion on sexual abuse, the following
occurred:
“DC3 Okay. Do you remember anything about the concerns about possible
sexual abuse?
“JD: No. (Eye closure) I mean, I remember that was part of the
accusation, but I don’t remember anything — (inhales audibly and closes eyes)
wait a minute, yeah, I do.
“DC: What do you remember?
“JD: (Pauses) Oh my gosh, that’s really, (. . . Close[s] eyes and holds
eyes) really weird. (Looks at foster mother) I accused her of taking pictures
(starts to cry and foster mother puts hand on Jane’s shoulder) of me and my
brother and selling them and I accused her of — when she was bathing me or
whatever, hurting me, and that’s —
3 “DC” refers to David Corwin. “JD” refers to Jane Doe. The parenthetical
comments were added by the authors of the Child Maltreatment article.
6
“DC: As you’re saying that to me, you remember having said those things
or you remember having experienced those things?
“JD: I remember saying about the pictures, I remember it happening, that
she hurt me.
“DC: Hurt you, where? How?
“JD: She hurt me. She —
“Therapist: There’s tissues to your right.
“JD: You see. I don’t know if it was an intentional hurt — she was
bathing me, and I only remember one instance, and she hurt me, she put her
fingers too far where she shouldn’t have, and she hurt me. But I don’t know if it
was intentional, or if it was just accidental.
“DC: Can you be more specific because I — ?
“JD: I know what was said on the tape. On the tape it was said that she
put her fingers in my vagina. And she hurt me.
“DC: Okay. Is that what you recall or —
“JD: That’s what I recall. I recall saying it, and I recall it happening.
“DC: You recall it happening?
“JD: I recall. I didn’t — that’s the first time I’ve remembered that since
saying that when I was 6 years old, but I remember.” (Child Maltreatment article,
supra, at pp. 105-106.)
According to the Child Maltreatment article, Corwin thereafter showed
Jane the videotapes of the 1984 interviews, took a two and one-half hour break,
and then recommenced the 1995 videotaped interview. During that part of the
interview, Corwin asked Jane to describe her feelings about viewing the
videotapes. Jane responded that the tapes reinforced her belief that her mother had
abused her. In her view, the girl she saw on the tapes would not have made up the
7
accusations. Jane also expressed relief that she no longer had to entertain the
possibility that her father, who recently had died, had lied to her about her mother.
At the end of the 1995 interview, Jane agreed that Corwin could use her
interviews for educational purposes. She stated: “Yeah, I think it’s — I mean,
I’m prepared to give my life, devote my life, to helping other kids who have gone
through what I’ve gone through, well not necessarily what I’ve gone through, that
have gone through traumatic . . . experiences, by becoming a psychologist or
psychiatrist, whichever I decide but, and I by no means want to stand in your
way.” (Child Maltreatment article, supra, at p. 109.)
In the final pages of the Child Maltreatment article, the authors reconciled
possible inconsistencies between Jane’s recalled memory in 1995 and the
accusations she made in 1984, and concluded that “[t]he core recollection, then, is
true to her earlier disclosures.” (Child Maltreatment article, supra, at p. 110.) The
authors also suggested that, assuming Jane’s memory of abuse actually had been
unavailable to her prior to the 1995 interview, Corwin’s presence may have helped
trigger her recall. Finally, the authors posed questions and issues to explore and
address in the future.
In addition to the article by Corwin and Olafson, the May 1997 issue of
Child Maltreatment contained five separate shorter articles by prominent
professionals in the mental health field who had reviewed the Corwin and Olafson
article and the videotaped interviews described in that article.4 Each of these case
4
The five commentaries are: (1) Ekman, Expressive Behavior and the
Recovery of a Traumatic Memory: Comments on the Videotapes of Jane Doe (May
1997) 2 Child Maltreatment 113; (2) Putnam, Commentary (May 1997) 2 Child
Maltreatment 117; (3) Armstrong, Exploring the Lines of Jane Doe’s Picture of
Pain (May 1997) 2 Child Maltreatment 121; (4) Neisser, Jane Doe’s Memories:
Changing the Past to Serve the Present (May 1997) 2 Child Maltreatment 123;
(footnote continued on next page)
8
commentaries uniformly praised the manner in which Corwin had conducted his
interviews with Jane Doe and generally described the case study as “unique,”
“extraordinarily important,” and providing “important insights” into the nature of
missing memories. (E.g., Putnam, Commentary, supra, 2 Child Maltreatment 117,
117.) Further, a number of the commentators, in discussing additional questions
they believed should be explored, stated that it would be useful to know “what has
happened to Jane subsequently. Has she recalled other previously unavailable
traumatic memories (e.g., how her feet were burned)? How has this affected her
relationship with her mother? . . . It would be interesting to see whether this
experience has produced substantial changes in her life, for better or worse.”
(Putnam, Commentary, supra, 2 Child Maltreatment at p. 120; see also Ekman,
Expressive Behavior and the Recovery of a Traumatic Memory: Comments on the
Videotapes of Jane Doe, supra, 2 Child Maltreatment at p. 116 [“Many questions
remain unanswered and will only be revealed over time as we can learn how her
adult personality takes shape”].)
2.
The 2002 Skeptical Inquirer Article
The May/June 2002 and July/August 2002 issues of the Skeptical Inquirer,
a magazine published by the Committee for the Scientific Investigation of Claims
of the Paranormal (CSICOP), included a two-part article, written by defendants
Elizabeth Loftus and Melvin Guyer,5 entitled Who Abused Jane Doe? The
(footnote continued from previous page)
(5) Schooler, Reflections on a Memory Discovery (May 1997) 2 Child
Maltreatment 126.
5
At the time the Skeptical Inquirer article was published, Loftus was a
psychology professor and adjunct professor of law at the University of Washington
and Guyer was a psychology professor at the University of Michigan Medical
School.
9
Hazards of the Single Case History (26 Skeptical Inquirer 24, 37 [hereafter, the
Skeptical Inquirer article].) The stated premise of the Skeptical Inquirer article is
that case studies, although useful to scientists, are “bounded by the perceptions
and interpretations of the storyteller” and should be used “to generate hypotheses
to be tested, not as answers to questions.” (Id. at pp. 25, 26.) To illustrate their
point, Loftus and Guyer provide “a case study of a case study — a cautionary
tale.” (Id. at p. 26.) The case study they scrutinize is Corwin and Olafson’s Child
Maltreatment article.
According to the Skeptical Inquirer article, psychological researchers and
clinicians disagree as to whether the human mind represses memories of traumatic
experiences in such a way that these memories accurately can be recovered years
later through tools such as therapy and hypnosis. The article also states that the
Child Maltreatment article has been offered and accepted as proof that traumatic
memories eventually can be reliably recovered.
The Skeptical Inquirer article summarizes the content of the Child
Maltreatment article and offers the following summary of the reactions of
professionals who had read about the Jane Doe case: “Corwin’s case study was
vivid and compelling. Leading scientists were persuaded by it; indeed,
emotionally moved by it. Few considered any other possible explanations of
Jane’s behavior at six or at seventeen. Few were skeptical that Jane really had
been abused by her mother before age six, that her retrieved memories were
accurate, or that ‘repression’ accounted for her forgetting what her mother
supposedly had done to her. [¶] But we were.” (Skeptical Inquirer, supra, at
p. 28, italics added by Court of Appeal.)
The Skeptical Inquirer article related that the allegations against Jane’s
mother in 1984 grew out of a contentious five-year custody battle and were made
at a time when many experts were unaware that interviewers looking for evidence
10
of sexual abuse easily could manipulate children and taint their memories.
Further, the article states that Corwin has a “vested interest” in persuading others
that his initial finding of sexual abuse was accurate and that “some repression-like
process” had prevented Jane from recalling that abuse during the period before
Corwin re-interviewed her. (Skeptical Inquirer, supra, at p. 29.) Therefore, as
Loftus and Guyer explained, “we set out on an odyssey to learn more about the
case. Our investigation produced much valuable information that should assist
scholars in making their own decisions about whether Jane was abused, and if so,
by whom.” (Ibid.)
The Skeptical Inquirer article describes how Loftus and Guyer found clues
to fuel their investigation notwithstanding the fact that Corwin had disguised the
case. (Skeptical Inquirer, supra, at p. 29.) For one thing, Corwin showed
videotapes of his interviews with Jane Doe at a number of professional meetings
and, at some point during the interviews, Corwin used Jane’s real first name and a
city where she spent some of her childhood. Using this information and other
clues from the Child Maltreatment article, the authors of the Skeptical Inquirer
article searched legal databases and found a published appellate court case relating
to allegations that Jane’s father had failed to comply with visitation orders. (See
In re William T. (1985) 172 Cal.App.3d 790.) That case provided additional
factual details about Jane Doe’s family. Further, the disclosure of the father’s first
name and last initial led to a successful search for the father’s identity and,
according to the authors, “from there we uncovered the full history of the custody
dispute and the abuse allegations.” (Skeptical Inquirer, supra, at p. 29.)
The Skeptical Inquirer article includes its authors’ version of an accurate
summary of the facts relevant to Jane Doe’s allegations of abuse. This article does
not disclose Jane’s identity or the real names of persons connected to her case. It
does, however, provide details about Jane’s history that were not disclosed in the
11
Child Maltreatment article, including unfavorable information about Jane’s father
and stepmother. Many of the details concerning Jane’s history that are disclosed
in the Skeptical Inquirer article were obtained through interviews conducted by or
on behalf of the authors of the latter article.
Jane’s biological mother was interviewed. She continued to deny the
allegations of abuse and, according to defendant authors, was “eager for us to
visit” and “told us a few things, of course from her perspective, that never
appeared in any of Corwin’s accounts of this case.” (Skeptical Inquirer, supra, at
p. 30.) The Skeptical Inquirer article summarizes the mother’s story and also
reports that the maternal grandmother’s best friend and Jane’s older brother concur
that Jane never was abused by her mother. The article also discloses that, after
Corwin reviewed with 17-year-old Jane the allegations of abuse, Jane severed all
contact with her mother.
Jane’s foster mother, also interviewed for the Skeptical Inquirer article,
allegedly described how Jane was “extremely distressed” when she came to live
with her. (Skeptical Inquirer, supra, at p. 31.) Jane’s father had had a heart attack
and could not care for her; Jane’s stepmother (who had divorced Jane’s father long
ago) was out of the picture, and Jane wanted to “put the ‘puzzle pieces’ of her past
together.” (Ibid.) Jane’s foster mother helped Jane contact her biological mother
but reported that the renewed relationship was destroyed after Corwin “entered the
picture.” (Ibid.) Jane’s foster mother opined that viewing the tapes convinced
Jane the abuse had occurred, and that the interview with Corwin dramatically
changed Jane: “She went into herself. She became depressed. She started
behaving in self-destructive ways, and soon left FosterMom’s home.” (Ibid.)
According to this article, Jane’s foster mother wondered whether Jane had rejected
her because “of the older woman’s strict rules against staying out late and
misbehavior, or because she was trying to run away from her own misery.” (Id., at
12
p. 32.) Jane’s foster mother also wondered whether viewing the tapes was a
mistake.
Jane’s stepmother, who also was interviewed for the article, allegedly
“volunteered that the way they [that is, Jane’s father and stepmother] got Jane
away from Mom was ‘the sexual angle.’ ” (Skeptical Inquirer, supra, at p. 32.)
During the interview, the stepmother displayed continuing and serious animosity
toward Jane’s mother, accusing her of such things as being a “prostitute” and a
“ ‘leech’ ” who “always had her hand out.” (Ibid.) According to the article,
Jane’s stepmother described how she and Jane’s father “ ‘documented’ ” their case
against Jane’s mother by, for example, bringing Jane to two hospitals to have her
feet examined to support the foot burning allegation. (Ibid.) The stepmother also
reported that, when Jane was between the ages of four and nine years, Jane spoke
to her about the sexual abuse she had endured. The Skeptical Inquirer article
includes personal information concerning Jane’s stepmother’s marital history and
legal problems. The authors of the article maintained this information was
relevant because Corwin used comparable information regarding Jane’s mother to
discredit her credibility.
In this article, defendants Loftus and Guyer offer several reasons why they
doubt that Jane Doe was physically or sexually abused by her mother, including:
(1) six-year-old Jane’s reports of abuse were inconsistent; (2) the credibility of
Jane’s father was not superior to that of Jane’s mother in terms of marital stability,
criminal history, and other behavior; and (3) at least one expert who conducted a
thorough contemporaneous investigation doubted that any abuse had occurred.
The Skeptical Inquirer article also questions whether 17-year-old Jane’s
memory of an alleged prior event was, in fact, a recovered memory. The authors
note, for example, that the evidence indicating that Jane had spoken about the
allegations with her stepmother and others during the years between the 1984
13
interviews and the 1995 interview “undermin[es] claims of massive repression or
dissociation.” (Skeptical Inquirer, supra, at p. 32.) Further, according to this
article, ‘[t]o the extent that Jane’s memory can be regarded as an instance of a
recovered, accurate memory, there must be some objective and independent
corroboration of the events she purports to remember.” (Skeptical Inquirer, supra,
at pp. 37, 38.) The authors suggest for several reasons that the required
corroboration does not exist: (1) Corwin’s original clinical evaluation was neither
objective nor reliable; (2) there is no evidence to support the allegation that Jane’s
mother burned Jane’s feet; indeed, the authors’ own research supported the
conclusion that, if Jane’s feet had been burned, the injury would have been
documented by the hospitals where Jane was taken or by Child Protective
Services, and no such documentation existed; (3) there is no evidence, prior
allegation, or even reference in the reports or the evidence to support Jane’s
supposed recollection that she previously had accused her mother of taking
pornographic pictures of her and her brother; and (4) the emotion and personal
details captured on the videotapes of the 1984 interviews could persuade not just
knowledgeable scientists but Jane herself that the abuse had occurred even if it
never had.
The Skeptical Inquirer article contains a postscript in which defendants
Loftus and Guyer describe “unexpected” resistance to their efforts to “critically
evaluate” Corwin’s claim that Jane Doe recovered a repressed memory. (Skeptical
Inquirer, supra, at pp. 37, 40.) Defendants contend that critics of their inquiry
impeded the publication of their work and that even their respective universities
warned them not to publish any of the material they had gathered, “even that
which is in the public domain and readily found by anyone with access to a
modem and Google search engine.” (Ibid.) The authors stated: “We are alarmed
on behalf of all members of the academic community that our universities,
14
institutions that above all others should be championing the right to free speech
and academic debate, so implacably opposed it in this instance.” (Ibid.)
3.
The 2002 Tavris Article
In addition to the second part of the Loftus and Guyer article, the
July/August 2002 issue of the Skeptical Inquirer contained an accompanying
article entitled The High Cost of Skepticism by Carol Tavris (26 Skeptical Inquirer
41; hereafter the Tavris article).6 In this article, Tavris posits that the power
wielded by university institutional review boards (IRB’s) stifles scientific inquiry
and progress, and threatens the very foundation of the “skeptical movement.”
(Tavris, supra, 26 Skeptical Inquirer at p. 42.) To illustrate her point, Tavris
focuses on the authors of the Skeptical Inquirer article summarized above: “The
story of what happened to Elizabeth Loftus and Mel Guyer when they set out to
investigate the case of Jane Doe is itself,” Tavris contends, “a case study of the
high cost of skepticism.” (Ibid.)
According to the Tavris article, the authors of the Skeptical Inquirer article
decided to examine the Jane Doe case and Corwin’s “alleged evidence of a
recovered memory of sexual abuse,” because the “stakes were high for their work
as scholars, teachers, and expert witnesses, because the case was already being
used in court as evidence that recovered memories of sexual abuse in childhood
are reliable.” (Tavris, supra, 26 Skeptical Inquirer at p. 42.) According to this
article, Loftus and Guyer were encouraged to pursue their story after finding that
documents in the public record were inconsistent with the Child Maltreatment
article.
6
The article identifies Tavris as a social psychologist, writer, and lecturer,
and the co-author of three introductory psychology textbooks.
15
The Tavris article describes how Loftus and Guyer were treated by the
IRB’s at the universities where they were employed. The IRB at the University of
Michigan, where Guyer was employed, allegedly took the position initially that its
approval for this project was unnecessary, because Guyer would not be doing
“human subjects research,” but then reversed its position a month later, when it
“disapproved” the project and recommended that Guyer be reprimanded. (Tavris,
supra, 26 Skeptical Inquirer at p. 42.) Then, several months later, a new chair of
the IRB determined that this project was exempt from IRB consideration because
it did not involve human subjects research, and found there was no basis for
recommending a reprimand.
According to the Tavris article, Loftus and Guyer were encouraged by the
“green light given to Guyer at Michigan” and continued their investigation until
the University of Washington, where Loftus was employed, received an e-mail
from Jane Doe complaining that her privacy was being violated. (Tavris, supra,
26 Skeptical Inquirer at p. 42.) Tavris’s article offered the following explanation
as to why the University of Washington should have rejected Jane Doe’s
complaint out of hand: “Considering that David Corwin had published his account
of her life and was traveling around the country showing videotapes of Jane at six
and seventeen, and considering that no one was making her story public (and
hence violating her ‘privacy’) except Jane herself and Corwin, this complaint
should have been recognized as a cry from a troubled and vulnerable young
woman, and set aside.” (Id. at pp. 42-43.)
Instead, Tavris reports, the “investigation” conducted by the University of
Washington lasted more than 21 months, consisted of a series of shifting charges
against Loftus, often kept secret from her, and was fueled by improper outside
influences. These influences included a scathing memorandum drafted by a
member of the University of Michigan’s IRB who was critical of Guyer, as well as
16
the litigation strategies of opposing counsel in an out-of-state court case in which
Loftus was a defense expert and Corwin was a plaintiff’s expert. Ultimately,
Tavris reports, Loftus was exonerated of charges of “scholarly misconduct,” and
the University of Washington concluded that her investigation of the Jane Doe
case did not constitute human subjects research. Even then, however, Loftus’s
employer, the University of Washington, instructed her not to contact Jane Doe’s
mother again, or to interview anyone else in the case without advance approval.
The Tavris article describes Jane Doe as “an unhappy young woman whose
life has been filled with conflict and loss.” (Tavris, supra, 26 Skeptical Inquirer at
p. 43.) It characterizes Corwin as a man “who has publicly promoted his case
study as a personal vindication and a prototype of how recovered memories should
be studied” (ibid.) while presenting Loftus and Guyer as heroes whose “courage,
persistence, and integrity” made them “willing to ‘offend’ in the pursuit of truth
and justice.” (Ibid.) [End of excerpt from Court of Appeal opinion.]
B. First Amended Complaint
On February 13, 2003, a few months after the publication of the Skeptical
Inquirer and Tavris articles, plaintiff filed the initial complaint in this proceeding
against Loftus, Guyer, Tavris, the Skeptical Inquirer, the University of
Washington, and Shapiro Investigations, a private investigation company that had
performed some investigation services for Loftus. In the initial paragraph of the
complaint, plaintiff identified herself as “Lieutenant Junior Grade Nicole S. Taus,
also known as ‘Jane Doe’ in publications referred to herein.” As far as the record
reveals, the filing of the complaint was the first occasion on which “Jane Doe’s”
true identity was publicly disclosed. The complaint also disclosed other personal
information about plaintiff, including the names of her parents, the year she was
born, and the city where she was raised.
17
On March 6, 2003, prior to any response by defendants, plaintiff filed a first
amended complaint, adding CSICOP (the publisher of Skeptical Inquirer) and the
Center for Inquiry West (an affiliate of CSICOP) as defendants. The first
amended complaint, which is the operative complaint for purposes of the present
proceeding, sets forth four causes of action.
The first cause of action alleged that all defendants were liable to plaintiff
for negligent infliction of emotional distress. The complaint asserted that
defendants had “misused their knowledge and skills as psychologists,
researchers[,] and writers and exploited plaintiff when they knew or should have
known that plaintiff had a background and personal history of abuse so as to make
her extremely susceptible to emotional abuse, slander, libel and exploitation.”
The second cause of action, also directed at all defendants, sought recovery
for invasion of privacy. The complaint maintained that plaintiff is not a public
figure and has a constitutional and statutory right to privacy, particularly with
respect to her medical history and juvenile court records. The complaint asserted
that defendants obtained private information about plaintiff both legally and by
false representations and published that information, including statements about
plaintiff that are not truthful. In particular, the complaint alleged that defendants
employed fraudulent means to obtain private information from plaintiff’s relatives,
including misrepresenting their identity and befriending plaintiff’s biological
mother.
The third cause of action, directed at Loftus and the University of
Washington, sought recovery for fraud. The fraud claim against Loftus was based
on allegations that Loftus made misrepresentations to plaintiff’s relatives and
friends in order to obtain private information about her, and the claim against the
University of Washington apparently rested on allegations that the university
18
falsely had represented to plaintiff that the process under which she filed an ethics
complaint against Loftus with the university would be confidential.
Finally, the fourth cause of action, directed against Loftus and Tavris,
sought recovery for defamation. The complaint alleged that Loftus and Tavris
made oral and written statements about plaintiff “designed to suggest that she was
unhappy, vulnerable, and of questionable fitness for her duty as an officer in the
military.” The claim against Tavris related solely to statements in the Tavris
article. The claim against Loftus was based both on statements in the Skeptical
Inquirer article and on “public and disparaging statements about plaintiff”
allegedly made by Loftus after the publication of the Skeptical Inquirer, including
Loftus’s alleged remark at a professional conference that “Jane Doe engaged in
destructive behavior that I cannot reveal on advice of my attorney. Jane is in the
Navy representing our country.”
C. The Motion to Strike
On May 13, 2003, defendants Loftus, Guyer, Tavris, the Skeptical Inquirer,
CSICOP, and the Center for Inquiry West filed a motion pursuant to the anti-
SLAPP provisions of section 425.16 to strike the first amended complaint; Shapiro
Investigations subsequently joined in the motion. The motion to strike was
accompanied by a variety of exhibits and declarations. Plaintiff filed an
opposition to the motion to strike, maintaining that section 425.16 is inapplicable
because statements about her are not matters of legitimate public concern and that,
in any event, the declarations and other materials accompanying the opposition
demonstrate a probability that she would prevail on the merits of each of her
claims. Defendants filed a reply to the opposition, attaching additional
declarations and exhibits.
After consideration of the motion, opposition, and reply, and the
accompanying declarations and exhibits, the trial court denied the motion to strike
19
the causes of action for negligent infliction of emotional distress and invasion of
privacy. The trial court granted the motion to strike the cause of action for fraud
against Loftus but denied the motion as to that cause of action against the
University of Washington,7 and granted the motion to strike the cause of action for
defamation against Tavris, but denied the motion as to that claim against Loftus.
All defendants that had filed the motion to strike appealed from those
portions of the trial court’s ruling permitting the majority of plaintiff’s claims to
proceed. Plaintiff did not appeal from the portions of the trial court’s ruling
striking the fraud cause of action against Loftus and the defamation cause of
action against Tavris, and accordingly those portions of the trial court’s ruling
were not before the Court of Appeal and are not before us.
D. The Court of Appeal’s Decision
In analyzing the validity of the trial court’s ruling on the motion to strike,
the Court of Appeal turned initially to the terms of the anti-SLAPP statute, section
425.16, and in particular to subdivision (b)(1) of that provision, which provides:
“A 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 under the United States
or California Constitution in connection with a public issue shall be subject to a
special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.”
As the Court of Appeal recognized, past cases establish that in ruling on a section
425.16 motion to strike, a court generally should engage in a two-step process:
7
Because the University of Washington did not file a motion to strike under
section 425.16, the causes of action against the university were not formally before
the trial court with regard to that motion. The University of Washington has not
appealed from the trial court’s ruling, and accordingly the viability of plaintiff’s
action against the university is not before us in the present proceeding.
20
“First, the court decides whether the defendant has made a threshold showing that
the challenged cause of action is one arising from protected activity. . . . If the
court finds such a showing has been made, it then determines whether the plaintiff
has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises
v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 67 (Equilon).)
In undertaking the first step of the analysis — namely, determining whether
the conduct or activity of defendants that gave rise to plaintiff’s claims was
activity in furtherance of defendants’ right of petition or free speech in connection
with a public issue — the Court of Appeal noted that section 425.16, subdivision
(e) defines such activity as including “any written or oral statement or writing
made in a place open to the public or a public forum in connection with an issue of
public interest” as well as “any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in
connection with a public issue or an issue of public interest.” (§ 425.16, subd.
(e)(3) & (4), italics added.) The Court of Appeal then pointed out that “the
statements and conduct which gave rise to [plaintiff’s] causes of action relate
specifically to the validity of the Jane Doe case study which was the subject of the
Child Maltreatment article and, more generally, to the question whether childhood
memories of traumatic sexual abuse can be repressed and later recovered (the
repressed memory theory).” The appellate court further observed that the record
before the trial court “contains considerable evidence of both (1) an ongoing
controversy in academic and clinical circles within the field of psychology as to
the validity of the repressed memory theory, and (2) that the publications at the
root of this litigation are part of this ongoing debate.” In light of these
circumstances, the Court of Appeal concluded that the activities of defendants that
gave rise to plaintiff’s action — that is, investigating, publishing, and speaking
21
about the subjects of their magazine articles — were acts in furtherance of
defendants’ right of free speech for purposes of the anti-SLAPP statute.8
The Court of Appeal then turned to the second step of the section 425.16
analysis — namely, whether plaintiff had demonstrated a probability of prevailing
on each of the claims that the trial court had declined to dismiss. Because the
8
The Court of Appeal concluded that the conduct of defendants that gave rise
to plaintiff’s action related to a public issue or an issue of public interest within the
meaning of section 425.16, subdivision (e) — a conclusion that we believe is
clearly correct. (See post, pp. 33-35.) In the course of its discussion of this point,
however, the Court of Appeal also noted that plaintiff “maintains that she is a
private figure, [and] that she has never taken any position with respect to the
clinical implications of the Jane Doe case study or played any role in an alleged
controversy relating to the theory that traumatic experiences can be repressed and
subsequently recalled.” The appellate court then stated: “We agree with these
assertions.” In explaining its agreement with plaintiff’s description of herself as a
“private figure,” the Court of Appeal expressed the view that “[plaintiff], whose
identity was not publicly revealed until she filed this lawsuit, cannot reasonably be
characterized as a person who was in the public eye when [defendants] allegedly
engaged in the conduct which gave rise to [plaintiff’s] claims.”
Defendants vigorously challenge the Court of Appeal’s position on this
point, maintaining that plaintiff, by repeatedly consenting to have the videotapes
and transcripts of her conversations with Corwin publicly disclosed and used
extensively in educational seminars and set forth in Corwin and Olafson’s Child
Maltreatment article, cannot properly be viewed as a “private figure” but rather
must be properly considered a “limited public figure” for constitutional free speech
purposes even though Corwin did not reveal plaintiff’s real name. As discussed
below, we do not believe it is necessary to decide in this case whether plaintiff’s
voluntary actions with respect to the publication and use of her interviews with
Corwin rendered her a limited public figure for constitutional purposes. (See post,
pp. 45-46, fn. 16.) At the same time, however, we believe it is prudent to express
reservations regarding the Court of Appeal’s unequivocal endorsement of
plaintiff’s claim to be a “private person” who “cannot reasonably be characterized
as a person who was in the public eye . . . .” In our view, there is at the very least a
strong argument that free speech considerations would support treating plaintiff as
a limited public figure in light of (1) her voluntary consent to Corwin’s public use
of videotapes revealing her face and voice, and (2) the prominent role that her case
study attained in the ongoing controversy regarding the repressed memory theory.
22
remaining claims that are now before this court can best be understood in light of
the Court of Appeal’s discussion and disposition of all of plaintiff’s claims, we
shall summarize that court’s analysis of the potential merit of each of the claims
that the trial court declined to dismiss.
1.
Negligent Infliction of Emotional Distress
With respect to the first cause of action — for negligent infliction of
emotional distress — the Court of Appeal concluded that the complaint failed to
“articulate any theory of negligence that might apply in this case.” The appellate
court noted that although plaintiff’s appellate brief contained “an extremely vague
argument that [defendants] breached their ethical obligations by violating
applicable professional standards,” plaintiff had failed to “identify a single ethical
obligation or professional standard that was allegedly breached. Instead, she
contends that [defendants] have essentially conceded that publishing the Skeptical
Inquirer article constituted a violation of the ethical obligations of a psychologist.
Not surprisingly, [defendants] concede no such thing.” Accordingly, the Court of
Appeal concluded that plaintiff had failed to demonstrate a probability that she
would prevail on her negligent-infliction-of-emotional-distress theory, and held
that this claim must be stricken.
2.
Invasion of Privacy
With regard to the second cause of action — for invasion of privacy — the
Court of Appeal determined that the allegations in the first amended complaint
potentially implicated two distinct invasion-of-privacy torts — (1) the tort of
improper public disclosure of private facts, and (2) the tort of improper intrusion
into private matters (see generally Shulman v. Group W Productions, Inc. (1998)
18 Cal.4th 200, 214-242 (Shulman)) — and it separately discussed the viability of
these two distinct tort theories.
23
a. Public-Disclosure-of-Private-Facts Tort
As to the public-disclosure-of-private-facts tort, the Court of Appeal
indicated that the complaint identified three allegedly improper disclosures:
(1) the Skeptical Inquirer article, (2) the Tavris article, and (3) statements that
Loftus made in other contexts. Noting that past cases had established that “lack of
newsworthiness is an element of the ‘private facts’ tort, making newsworthiness a
complete bar to common law liability” for this tort (Shulman, supra, 18 Cal.4th
200, 215), the Court of Appeal initially determined that neither the complaint nor
the material submitted in conjunction with the motion to strike “identified any
private fact that was revealed in the Skeptical Inquirer or Tavris articles which is
not newsworthy.” The court found in this regard that “[t]o the extent these articles
disclosed private information about [plaintiff’s] past that was not already disclosed
in the Child Maltreatment article, these facts related to the validity of Corwin’s
conclusions that [plaintiff] was abused by her mother, repressed the memory of
sexual abuse and then recovered that memory 11 years later,” and that “the role of
the Jane Doe case study in the repressed memory debate made the validity of that
case study a matter of legitimate public interest.”9 Accordingly, the Court of
Appeal held that plaintiff had not demonstrated a probability of prevailing on the
private-facts tort with regard to any of the disclosures made in either the Skeptical
Inquirer or Tavris articles.
9
The Court of Appeal acknowledged that the Tavris article also disclosed that
Jane Doe had filed an ethics complaint against Loftus with the University of
Washington, but the court held that “facts relating to the University investigation
were not private to [plaintiff] because they also directly relate to Loftus’s personal
and professional lives” and because they also pertain “though not as directly, to the
repressed memory debate which is a matter of public interest.”
24
At the same time, however, the Court of Appeal concluded that plaintiff
had demonstrated a probability of prevailing on a private-facts tort theory with
regard to statements that Loftus had made in other contexts. The Court of Appeal
noted in this regard that “there is evidence in the record that Loftus made the
following statement at an October 2002 professional conference: ‘Jane Doe
engaged in destructive behavior that I cannot reveal on advice of my attorney.
Jane is in the Navy representing our country,’ ” and that “[t]here is also evidence
that Loftus revealed the first and last initial of [plaintiff’s] real name during a
deposition in an unrelated court action.” The Court of Appeal concluded that
“[t]hese comments publicly disclose private information about Taus which is not
newsworthy. They do not relate in any way to the validity of the Jane Doe study,
the repressed memory debate or to any other matter of legitimate public interest.
They are clues to the true identity of Jane Doe and, under the circumstances, a
reasonable jury could find that disclosing this information was both offensive and
objectionable.”
Accordingly, although the Court of Appeal concluded that the private-facts
tort could not proceed with regard to any disclosures in the Skeptical Inquirer or
Tavris articles themselves, the appellate court held that plaintiff had demonstrated
a probability of prevailing on a private-facts tort theory against Loftus on the basis
of statements relating to plaintiff that Loftus allegedly made at a professional
conference and during a deposition in an unrelated court action.
b. Intrusion-into-Private-Matters Tort
With regard to the intrusion-into-private-matters tort, under which liability
may be imposed for an intrusion into a “private place, conversation, or matter . . .
in a manner highly offensive to a reasonable person” (Shulman, supra, 18 Cal.4th
200, 231), the Court of Appeal found that plaintiff “has identified three alleged
intrusions into her zone of privacy: (1) establishing a friendship with [plaintiff’s]
25
biological mother in order to obtain personal information about [plaintiff];
(2) securing interviews with friends and family through fraudulent means; and
(3) collecting and disseminating confidential information about [plaintiff] from
various court files.” The Court of Appeal separately analyzed each of these
alleged intrusions.
With regard to the initial alleged intrusion, the appellate court held that
“[t]he friendship between Loftus and [plaintiff’s] mother is not an intrusion into
[plaintiff’s] private life.” The court explained that “[t]he subjects that [plaintiff’s]
mother discussed with Loftus were not private to [plaintiff] because they also
obviously involved [plaintiff’s] mother,” and that “[plaintiff’s] mother has as
much right to share her story with Loftus as [plaintiff] has to share the details of
her life with Corwin.” Accordingly, the Court of Appeal concluded that Loftus’s
conduct in befriending plaintiff’s mother did not support a cause of action for
improper intrusion.
With regard to plaintiffs’ claim that defendants could be held liable for
improper intrusion into private matters by conducting interviews with plaintiff’s
relatives or friends by fraudulent means, however, the Court of Appeal concluded
that the evidence presented by defendant was sufficient to support the imposition
of liability on this theory. The appellate court relied on a declaration of plaintiff’s
foster mother, Margie Cantrell, that alleged: “Loftus contacted [Cantrell] in late
1997, told her she [Loftus] was working with Corwin to help [plaintiff], and
requested that Cantrell come to an office to answer some questions. Cantrell
stated that she accepted the invitation because she knew Corwin and she knew that
[plaintiff] trusted him and because she wanted to help [plaintiff]. Cantrell further
stated that when she met Loftus, Loftus welcomed her, ‘saying again that she was
working with Dr. Corwin and was actually his supervisor in connection with his
study of [plaintiff].’ ” The Court of Appeal stated that “Cantrell’s declaration is
26
undisputed evidence that [defendants] penetrated a zone of privacy which included
Cantrell, who was not only a close friend and confidant of [plaintiff’s] but also a
mother figure to her, by misrepresenting their identity and true purpose.
Appellants contend that only Cantrell has standing to pursue a claim based on
these alleged misrepresentations. We agree that [plaintiff] cannot use this
evidence to support her fraud claim. On the other hand, this evidence is relevant
to show that [defendants] intruded into a private area of [plaintiff’s] life. Indeed,
this evidence actually suggests that [defendants] were aware that the information
they sought was private and that it would not have been shared with them had they
been truthful about the nature and purpose of their investigation.” Accordingly,
the Court of Appeal concluded that plaintiff had demonstrated a probability of
prevailing on an intrusion-into-private-matters tort on the basis of Lotus’s alleged
misrepresentations to Cantrell.
With respect to plaintiff’s claim that defendants had engaged in an
improper intrusion into private matters by obtaining private information from
court records, the Court of Appeal explained that plaintiff actually had advanced
two distinct arguments in this regard. First, plaintiff argued that defendants had
engaged in improper intrusion in gathering information about her “from
documents, such as medical and [Child Protective Services] reports, which,
although contained in files open to the public, were of a confidential nature.” The
Court of Appeal found that this portion of plaintiff’s claim lacked merit, relying on
our holding in Shulman, supra, 18 Cal.4th 200, 231, that there can be “no liability
for the examination of a public record concerning the plaintiff.”
Second, the Court of Appeal noted that plaintiff also argued that defendants
had obtained private information about her from documents contained within her
juvenile dependency file. Because such files are not open to the public, but rather
are confidential, the Court of Appeal concluded that defendants could be held
27
liable for improper intrusion if they improperly had obtained access to plaintiff’s
confidential juvenile court records. Although defendants vigorously maintained
that “any medical or psychological reports they obtained came from the Stanislaus
County divorce proceeding” — a public record — and pointed out that plaintiff
had failed to adduce any evidence that defendants had accessed plaintiff’s
confidential juvenile court records in Solano County, the Court of Appeal, relying
upon a statement in a declaration from the owner of Shapiro Investigations that
one of his employees had copied “voluminous public records” at the Solano
County courthouse that may have been relevant to the Jane Doe case, concluded
that the record contained sufficient evidence from which “a jury could reasonably
infer that some form of trickery or misconduct was employed” to obtain
confidential files in Solano County. Accordingly, the Court of Appeal concluded
that plaintiff’s improper-intrusion-into-private-matters claim could go forward
insofar as it was based on defendants’ conduct in gaining improper access to, and
using information derived from, plaintiff’s confidential juvenile court files.
3.
Defamation
Finally, the Court of Appeal examined whether plaintiff had established a
probability of prevailing on her defamation claim against defendant Loftus. In
addressing this issue, the appellate court noted that the defamation claim was
based on five distinct statements ― three that appeared in the Skeptical Inquirer
article, and two that Loftus allegedly had made in other contexts. The Court of
Appeal found that none of the first four challenged statements properly could
support a defamation claim, but concluded that the defamation action could
proceed with regard to the final statement challenged by plaintiff.
In analyzing the defamation claim, the Court of Appeal turned first to the
three statements in the Skeptical Inquirer article that plaintiff asserted provided a
proper basis for a defamation action. The statements in question, as set forth by
28
the Court of Appeal, are as follows: “(1) After Jane met with Corwin and viewed
the tapes, ‘she started behaving in self-destructive ways, and soon left
FosterMom’s home.’ [¶] (2) ‘Jane terminated her newly emerging relationship
with her mother after Corwin came back into her life and replayed her childhood
tape. Her mother lost her once, long ago in 1984, and lost her again in 1995. At
this writing they are not in contact with one another.’ [¶] (3) ‘If the abuse never
happened in the first place, the adult-child may be mistakenly led to believe that it
did because she does not understand that there are reasons why a child might make
an abuse report even when no abuse had occurred. She may be led to act on the
basis of this ‘new information’ in ways that she would not have otherwise acted,
with results devastating for her and others. In this case, for example, Jane
terminated her newly re-forming relationship with her mother after seeing her
childhood tapes.’ ”
The Court of Appeal concluded that plaintiff had failed to demonstrate
either that any express factual assertion in any of these three statements is false or
that the statements reasonably could be construed as implying one or more
falsehoods about her. With respect to the first statement, the court rejected
plaintiff’s assertion that the statement reasonably could be construed as stating that
plaintiff had physically injured herself and had run away from home, observing
instead that “the statement relates to Jane’s foster mother’s recollection about
Jane’s change in behavior after she viewed the tapes, which included such things
as expressing anger toward the foster mother and refusing to follow ‘strict rules
against staying out late and misbehavior’ ” — conduct that, as the appellate court
noted, plaintiff “has not denied engaging in.” With respect to the second and third
statements from the Skeptical Inquirer article, the Court of Appeal concluded that
the false implication to which plaintiff suggested the statements gave rise — that
viewing the videotapes had caused plaintiff to terminate her relationship with her
29
biological mother when, plaintiff asserts, it was “Loftus’s own interference” that
caused the subsequent rift between her and her biological mother — was actually a
subjective “expression[] of opinion . . . that could be drawn from facts presented in
both the Child Maltreatment and the Skeptical Inquirer articles,” and, as such,
could not support a defamation action against Loftus.
The Court of Appeal then turned to the first statement not contained in the
Skeptical Inquirer article that plaintiff claimed was defamatory. On June 14,
2001, prior to the publication of that article and while the University of
Washington’s investigation of plaintiff’s ethics complaint against Loftus’s
investigatory activities was ongoing, Loftus made the following statement during a
speech to the annual meeting of the American Psychological Society in Toronto:10
“I continue to be the target of efforts to censor my ideas. I am gagged at the
moment and may not give you the details. . . . Who after all benefits from my
silence? Who benefits from such investigations in the dark? The only people who
operate in the dark are thieves, assassins and cowards.” The Court of Appeal
found that “[u]nder the circumstances, no reasonable person who heard this
statement on June 14, 2001, could have interpreted it as a statement of actual fact
concerning [plaintiff]. Because this statement was made before the Skeptical
Inquirer article was published, it is unlikely anyone even connected it to Jane
Doe.” Moreover, the Court of Appeal found that even after the publication of the
Skeptical Inquirer article, “any reasonable person would understand Loftus’s
colorful statement as the rhetoric of an agitated advocate whose efforts to promote
a professional theory were thwarted by those who disagreed with her. As used in
10
Loftus’ remarks were delivered during her acceptance speech upon receiving
the American Psychological Society’s 2001 William James Fellow Award for
scientific achievement.
30
this way, the terms ‘thieves, assassins and cowards’ are nothing more than
‘ “subjective expressions of disapproval, devoid of factual content.” ’ ”
Accordingly, the Court of Appeal concluded that the June 14, 2001 statement
would not support a defamation claim.
With respect to the last statement of Loftus on which plaintiff’s defamation
claim was based, however, the Court of Appeal concluded that the defamation
claim should be permitted to go forward. The statement in question was the same
statement allegedly made by Loftus at the October 2002 professional conference
that the Court of Appeal previously had found could support an action for
improper public disclosure of private facts. As noted above, Loftus allegedly
stated at the conference that “Jane Doe engaged in destructive behavior that I
cannot reveal on advice of my attorney. Jane is in the Navy representing our
country.” In the Court of Appeal’s view, these remarks were not “an expression of
opinion or a subjective professional judgment drawn from fully disclosed facts”
but rather “could reasonably be interpreted as implying that [plaintiff’s] ongoing
destructive behavior or the effects of past behavior make her unfit for military
service” — a defamatory implication. Moreover, the Court of Appeal concluded
that “in contrast to the statements made in the Skeptical Inquirer article, this
statement does not relate to a matter of public interest. It has no bearing on the
validity of the Jane Doe case study or on any aspect of the controversy relating to
the repressed memory theory.” In light of its determination that “the public has no
legitimate interest in that matter,” the Court of Appeal concluded that “the truth of
the alleged statement is a defense with respect to which Loftus has the burden of
proof,” and because Loftus had not presented any evidence that plaintiff had
engaged in behavior that made her unfit for military service, the appellate court
held that the record demonstrated a probability that plaintiff would prevail on her
claim for defamation based on Loftus’s October 2002 statement.
31
4.
Court of Appeal’s Conclusion
In sum, although the Court of Appeal concluded that the majority of
plaintiff’s claims against defendants should have been dismissed, it held that the
action could go forward with respect to (1) a cause of action for improper public
disclosure of private facts based upon Loftus’s alleged statement at the October
2002 professional conference and Loftus’s disclosure of plaintiff’s initials during a
deposition in an unrelated case, (2) a cause of action for improper intrusion into
private matters based upon Loftus’s alleged misrepresentations to plaintiff’s foster
mother and upon defendants’ alleged intrusion into confidential juvenile court
files, and (3) a cause of action for defamation based upon Loftus’s alleged
statement at the October 2002 professional conference.
E. Petition for Review and Issues before this Court
After the Court of Appeal issued its opinion, only defendants petitioned for
review in this court, raising contentions relating solely to those claims as to which
the Court of Appeal had found that defendants’ anti-SLAPP motion properly was
denied. Because plaintiff did not petition for review or file an answer contesting
any issue on which the Court of Appeal ruled against her, we have no occasion to
address any such issue here.11
Accordingly, the only issues before us are whether the Court of Appeal
properly concluded that dismissal under the anti-SLAPP statute was improper with
11
An amicus curiae brief filed in this court on behalf of plaintiff asserts at
some length that actions undertaken by Loftus and Guyer in the course of their
investigation of the Skeptical Inquirer article violated federal standards relating to
human subjects research. As noted above, the Court of Appeal rejected plaintiff’s
claim that the first amended complaint stated a cause of action based on
defendants’ alleged breach of professional ethics, and plaintiff did not seek review
of that ruling. Accordingly, the human-subjects-research issue raised by amicus
curiae is not properly before us and will not be addressed.
32
regard to plaintiff’s claims relating to the following four incidents or conduct
allegedly engaged in by one or more of the defendants:
1.
Loftus’s statement at the October 2002 professional seminar
(relating to Jane Doe’s position in the military), which the Court of Appeal
concluded could support either (a) a cause of action for public disclosure of
private facts, or (b) a cause of action for defamation.
2.
Loftus’s disclosure of plaintiff’s initials during a deposition in
March 2003, a disclosure that the Court of Appeal concluded would support, along
with Loftus’s statements at the October 2002 seminar, a cause of action for public
disclosure of private facts.
3.
Defendants’ collection of information from court records, which the
Court of Appeal concluded would support a cause of action for improper intrusion
into private matters.
4.
Loftus’s alleged misrepresentation of her relationship with Corwin
in obtaining information about plaintiff from plaintiff’s foster mother, which the
Court of Appeal concluded would support a cause of action for improper intrusion
into private matters.
We begin by discussing the standard that governs the determination of a
motion to strike under the anti-SLAPP statute, and then turn to the application of
that standard to each of the four incidents in question.
II
As explained above, this appeal is from a trial court ruling on a special
motion to strike under California’s anti-SLAPP statute. Section 425.16,
subdivision (b)(1) provides in relevant part: “A 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 under the United States or California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the court
33
determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” As the Court of Appeal recognized, in
applying the statute a court generally is required to engage in a two-step process:
“First, the court decides whether the defendant has made a threshold showing that
the challenged cause of action is one arising from protected activity. . . . If the
court finds such a showing has been made, it then determines whether the plaintiff
has demonstrated a probability of prevailing on the claim.” (Equilon, supra, 29
Cal.4th 53, 67.)
Here, we believe there can be no question but that defendants’ general
course of conduct from which plaintiff’s cause of action arose was clearly activity
“in furtherance of [defendants’] exercise of . . . free speech . . . in connection with
a public issue” within the meaning of section 425.16. As the initial Child
Maltreatment article itself makes abundantly clear, at the time of defendants’
actions there was a substantial controversy in the mental health field regarding
whether, and under what circumstances, a victim of child abuse might forget or
suppress the memory of the abuse over a long period of time and later recover that
memory in response to questioning or other actions by a therapist. (See Child
Maltreatment article, supra, at pp. 91-92.)12 Further, defendants unquestionably
12
At the very outset of the Child Maltreatment article, the authors noted that
“[i]n addition to the dozens of articles and scholarly papers about this subject, the
titles of several recent books reflect the polarized nature of this memory debate. In
1994, The Myth of Repressed Memory: False Memories and Allegations of Abuse,
by Loftus and Ketchum, and Making Monsters: False Memories, Psychotherapy,
and Sexual Hysteria, by Ofshe and Watters, were published. Whitfield’s Memory
and Abuse: Remembering and Healing the Effects of Trauma appeared in 1995. In
1996 The Recovered Memory/False Memory Debate, by Pezdek and Banks, and
Recovered Memories of Abuse, Assessment, Therapy, Forensics, by Pope and
Brown, were published. . . . The debate has divided clinicians and experimental
psychologists, with clinicians arguing that recovered memories of past traumas are
(footnote continued on next page)
34
were engaged in conduct in furtherance of their right of free speech in
(1) conducting an investigation with regard to the validity of the Child
Maltreatment article, (2) writing and publishing responsive articles questioning the
conclusions of the Child Maltreatment article, and (3) speaking at professional
conferences and meetings regarding the issues raised by the articles. Because the
various causes of action set forth in plaintiff’s first amended complaint sought to
impose liability upon defendants on the basis of such conduct, the claims plainly
fell within the scope of the anti-SLAPP statute.13
Accordingly, in order to avoid dismissal of each claim under section
425.16, plaintiff bore the burden of demonstrating a probability that she would
(footnote continued from previous page)
often factual, and experimentalists arguing that they may be false memories derived
from therapeutic suggestion . . . .” (Child Maltreatment article, supra, at p. 91.)
The authors of the Child Maltreatment article then stated: “The clearest
conclusion from this debate is that much remains to be learned about human
memory, how both traumatic and nontraumatic memories are preserved, how they
can become unavailable to the person who experienced them, how they are
sometimes discovered, and how they can become contaminated mixtures of both
accurate and inaccurate information. Many questions remain unanswered
concerning the false memory phenomenon as well. Who are the most susceptible
to developing these false beliefs, and under what conditions are false memories
most likely to occur? Once established, what is the stability of these false beliefs
over time? Perhaps the most important question, and probably the most elusive to
definitively answer, is whether differences can be observed between apparent
recollections that have little grounding in reality and those that are more factual.”
(Child Maltreatment article, supra, at pp. 91-92.)
13
Although Loftus’s disclosure of plaintiff’s initials occurred at a deposition in
a case that was unrelated to the investigation or publication of the articles at issue,
as described below (post, pp. 49-51) the disclosure was in direct response to a
question relating to Lotus’s investigation of plaintiff and the resulting controversy,
and thus the potential imposition of liability on the basis of this statement also fell
within the scope of the anti-SLAPP statute.
35
prevail on the particular claim. In Wilson v. Parker, Covert & Chidester (2002) 28
Cal.4th 811, 821, we explained what such a showing entails: “In order to establish
a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff
responding to an anti-SLAPP motion must ‘ “state[] and substantiate[] a legally
sufficient claim.” ’ [Citations.] Put another way, the plaintiff ‘must demonstrate
that the complaint is both legally sufficient and supported by a prima facie
showing of facts to sustain a favorable judgment if the evidence submitted by the
plaintiff is credited.’ [Citations.] In deciding the question of potential merit, the
trial court considers the pleadings and evidentiary submissions of both the plaintiff
and the defendant (§ 425.16, subd. (b)(2)); though the court does not weigh the
credibility or comparative probative strength of competing evidence, it should
grant the motion if, as a matter of law, the defendant’s evidence supporting the
motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.
[Citation.]” (28 Cal.4th at p. 821, italics in original.) (See also, e.g., Equilon,
supra, 29 Cal.4th 53, 63 [section 425.16 “subjects to potential dismissal . . . those
cases of action as to which the plaintiff is unable to show a probability of
prevailing on the merits [citation], a provision we have read as ‘requiring the court
to determine only if the plaintiff has stated and substantiated a legally sufficient
claim’ ”]; Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192
[under section 425.16 “the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation”].)
As the foregoing decisions demonstrate, although by its terms section
425.16, subdivision (b)(1) calls upon a court to determine whether “the plaintiff
has established that there is a probability that the plaintiff will prevail on the
claim” (italics added), past cases interpreting this provision establish that the
Legislature did not intend that a court, in ruling on a motion to strike under this
statute, would weigh conflicting evidence to determine whether it is more probable
36
than not that plaintiff will prevail on the claim, but rather intended to establish a
summary-judgment-like procedure available at an early stage of litigation that
poses a potential chilling effect on speech-related activities. (See also Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1122-1123;
Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.)
Accordingly, when a defendant makes the threshold showing that a cause of action
that has been filed against him or her arises out of the defendant’s speech-related
conduct, the provision affords the defendant the opportunity, at the earliest stages
of litigation, to have the claim stricken if the plaintiff is unable to demonstrate
both that the claim is legally sufficient and that there is sufficient evidence to
establish a prima facie case with respect to the claim.
As discussed above, the Court of Appeal held that plaintiff failed to
establish such a probability of prevailing with regard to the bulk of defendants’
conduct to which the complaint was directed, and plaintiff did not seek review of
the appellate court’s decision. Accordingly, the claims found deficient by the
Court of Appeal are not before us. The issues before us are limited to those claims
as to which the Court of Appeal found that plaintiff adequately had established a
prima facie case to avoid dismissal under section 425.16. As noted, the claims in
question relate to defendants’ conduct in four separate instances: (1) a statement
allegedly made by Loftus at a professional conference in October 2002 disclosing
Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials at
a deposition in March 2003, (3) defendants’ alleged improper collection of
information from confidential court files in researching the Skeptical Inquirer
article, and (4) Loftus’s alleged misrepresentation of her relationship with Corwin
in order to obtain information relating to plaintiff from plaintiff’s foster mother
during the investigation and research for the Skeptical Inquirer article.
37
We discuss each of these claims in turn. As we shall explain, with respect
to the first three matters — Loftus’s statement at the October 2002 conference
disclosing Jane Doe’s position in the military, Loftus’s disclosure of plaintiff’s
initials at a March 2003 deposition, and defendants’ alleged improper collection of
information from court files — we conclude that the Court of Appeal erred in
finding that plaintiff had satisfied her burden of establishing a prima facie case on
any cause of action based on these incidents. With respect to the fourth matter —
Loftus’s alleged misrepresentation of her relationship with Corwin for the purpose
of obtaining information from plaintiff’s foster mother — we agree with the Court
of Appeal’s determination that a prima facie case has been established.
III
Plaintiff’s claims regarding the October 2002 conference are based entirely
on the facts set forth in a declaration of a single witness, Lynn Crook. Crook’s
declaration states that she has a master’s degree in educational psychology and is
an “investigative journalist by profession,” and discloses that she “first
encountered” Loftus in the mid-1990’s when Loftus testified as an adverse expert
witness in a civil sexual abuse case in which Crook herself was the plaintiff. The
declaration reveals that Crook and Loftus subsequently have had a long-standing
history of hostile relations, with Crook filing a series of ethics complaints against
Loftus with the American Psychological Association and the University of
Washington, and Loftus responding with what Crook’s declaration characterizes
as “years of systematic harassment.”
The bulk of Crook’s declaration is directed at Loftus’s activities and
methodology in investigating and writing the Skeptical Inquirer article and thus is
concerned with claims that were rejected by the Court of Appeal and that are not
before this court, but three paragraphs of the declaration relate to Loftus’s
statements at the October 2002 conference. The declaration states in this regard
38
that in October 2002, Crook attended the False Memory Syndrome Foundation
conference held in Illinois, and was present at a talk given by Loftus at the
conference. The declaration states that Loftus’s remarks were not audiotaped or
videotaped, but that Crook “made careful notes.” The declaration indicates that
although Loftus expressed sympathy for plaintiff’s biological mother, Loftus’s
“composure and tone changed when talking about ‘Jane’ herself. In a sarcastic
tone, she told the audience: ‘Jane Doe engaged in destructive behavior that I
cannot reveal on advice of my attorney. Jane is in the Navy representing our
country.’ ” In Crooks’ view, “the clear implication was that ‘Jane’ had engaged in
such destructive activity as to render her service in the Navy as questionable,
perhaps even dangerous to the country.”
Loftus submitted a declaration and a supplemental declaration in support of
the motion to strike, taking issue with Crook’s version of the statements made by
Loftus at the October 2002 conference. Loftus’s declaration indicates that she was
invited to speak at the October 2002 conference of the False Memory Syndrome
Foundation in Chicago, Illinois, and on that occasion she lectured on the Jane Doe
article, “mostly reading directly from the Skeptical Inquirer article.”
With regard to the specific statements attributed to her by Crooks’
declaration, Loftus does not deny stating at different points during the October
2002 conference that Jane Doe engaged in “destructive behavior” or that she was
“in the military,” but she denies that the two statements were in any way linked.
Loftus’s declaration states: “As I recall, in response to a question from the
audience about what I understood Jane Doe was ‘doing now,’ I simply responded
that she was ‘in the military.’ I never said or implied that Jane Doe was not ‘fit’ to
serve in the military. I did not intend to make that implication.” The declaration
further states that with regard to “the use of the term ‘destructive,’ I did use that
term in the article in describing how Jane Doe had purportedly reacted to her
39
purported recovered memories of her alleged abuse. I wrote: ‘According to
Foster Mom, Jane changed dramatically after the interview with Corwin. . . . She
started behaving in self-destructive ways.’ [Citation.] I may have mentioned this
point in the lecture too, but I did not specify what the ‘self-destructive’ behavior
was, even though I did possess more specific information. I did not elaborate at
the time out of my concern for Jane Doe’s privacy.”
Although Loftus did not go into the details of Jane Doe’s self-destructive
behavior in either the Skeptical Inquirer article or at the October 2002 conference,
Loftus’s declaration states: “Now that Plaintiff has brought this action, in my
defense, it is appropriate that I explain that my comments were based on
information that I had learned during my investigation. Jane Doe’s foster mother
told me during my interview of her that shortly after apparently recovering her
memories in 1995, Plaintiff started sleeping with boys and doing drugs. Plaintiff
also snuck out of the house at night. And she apparently left the care of her foster
mother. At the time I made this observation about Jane Doe’s ‘destructive’
behavior, I believed the underlying facts to be true. To this day, I continue to
believe that the information I learned from my research was truthful.”
In response to this portion of the Loftus declaration, the declaration
submitted by plaintiff states: “Dr. Loftus has deliberately dumped into the record
in her declaration here that Margie Cantrell told her that after ‘recovering her
memories in 1995’ . . . ‘Plaintiff started sleeping with boys and doing drugs.’ . . . I
am absolutely astonished as to the depths to which defendant Loftus will stoop.
These are statements attributed to someone who was defrauded into saying
anything to Dr. Loftus. The statements may have reflected concerns Ms. Cantrell
had at the time, but they are false statements.” Cantrell also submitted a
declaration stating that she agreed to speak with Loftus only after Loftus had
misrepresented her relationship with Corwin. In her declaration, however,
40
Cantrell did not deny making the statements about plaintiff attributed to her by
Loftus’s declaration.
As discussed above, the Court of Appeal held that the allegations of the
complaint and the declarations filed with the trial court relating to Loftus’s alleged
statement at the October 2002 conference were sufficient to establish a prima facie
case with respect to two causes of action: (1) improper public disclosure of
private facts, and (2) defamation. We turn first to the public-disclosure-of-private-
facts cause of action.
A. Public-Disclosure-of-Private-Facts Action
In this court’s decision in Shulman, supra, 18 Cal.4th 200, 214, we set forth
the elements of the public-disclosure-of-private-facts tort as follows: “ ‘(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.’ ” In
discussing the fourth element, we explained in Shulman that “lack of
newsworthiness is an element of the ‘private facts’ tort, making newsworthiness a
complete bar to common law liability.” (Id. at p. 215.)14
Considering the relevant facts revealed by the record in light of the
elements of the public-disclosure-of-private-facts tort, we disagree with the Court
of Appeal’s conclusion that plaintiff established a prima facie case with regard to
this tort. To begin with, we have very serious doubts whether either of the
statements in question — that Jane Doe engaged in “destructive behavior that I
cannot reveal on advice of my attorney,” or that Jane Doe is in the Navy —
constitutes disclosure of the kind of sufficiently sensitive or intimate private fact
14
Shulman also observed that newsworthiness is “a constitutional defense to,
or privilege against, liability for publication of truthful information.” (Shulman,
supra, 18 Cal.4th 200, 216.)
41
“which would be offensive and objectionable to the reasonable person” so as to
support a cause of action under the public-disclosure-of-private-facts tort. (See,
e.g., Coverstone v. Davies (1976) 38 Cal.2d 315, 323 [public-disclosure-of-
private-facts tort applies to “the unwarranted publication by defendant of intimate
details of plaintiffs’ lives” (italics added)].)15 We need not decide that question
here, however, because unlike the Court of Appeal we conclude that the facts
disclosed — relating generally to how the experiences described in the case study
may have affected Jane Doe’s subsequent conduct and career as an adult —
clearly are newsworthy, and for that reason cannot properly be the basis of such a
tort action.
Our decision in Shulman discussed the “newsworthiness” standard at some
length, and it is useful to review that discussion here. We explained that “courts
have generally protected the privacy of otherwise private individuals involved in
15
In addition to the question whether the comments in question pertain to
sufficiently sensitive or intimate matters to support a public-disclosure-of-private-
facts tort, there is an additional question whether the alleged statement can support
either a public-disclosure-of-private-facts action or a defamation action inasmuch
as Loftus never disclosed plaintiff’s identity at the October 2002 conference, but
simply referred to her as Jane Doe. In contending that the statement nonetheless
can support both causes of action, plaintiff relies upon cases that hold that a
statement may support a cause of action for defamation even if it does not
specifically identify the plaintiff by name, so long as a recipient of the
communication reasonably understands that the statement was intended to refer to
the plaintiff. (See, e.g., Washer v. Bank of America (1943) 21 Cal.2d 822, 829.)
Here, the statement in question clearly was intended to refer to a particular
person — the subject of the case study described in the Child Maltreatment
article — but the subject was not identified by name and her identity was not
widely known. Because we conclude, for the reasons discussed hereafter, that both
the public-disclosure-of-private-facts action and the defamation action are deficient
for other reasons, we need not determine whether the circumstance that the October
2002 statement did not identify plaintiff by name represents an additional fatal
defect with respect to either cause of action.
42
events of public interest ‘by requiring that a logical nexus exist between the
complaining individual and the matter of . . . public interest.’ [Citation.] The
contents of the publication or broadcast are protected only if they have ‘some
substantial relevance to a matter of legitimate public interest.’ [Citation.] Thus,
recent decisions have generally tested newsworthiness with regard to such
individuals by assessing the logical relationship or nexus, or the lack thereof,
between the events or activities that brought the person into the public eye and the
particular facts disclosed. . . . This approach accords with our own prior decisions,
in that it balances the public’s right to know against the plaintiff’s privacy interest
by drawing a protective line at the point the material revealed ceases to have any
substantial connection to the subject matter of the newsworthy report. [Citation.]
This approach also echoes the Restatement commentators’ widely quoted and
cited view that legitimate public interest does not include ‘a morbid and
sensational prying into private lives for its own sake . . . .’ ” (Shulman, supra, 18
Cal.4th 200, 223-224.)
Shulman also makes it clear that “[a]n analysis measuring newsworthiness
of facts about an otherwise private person involuntarily involved in an event of
public interest by their relevance to a newsworthy subject matter incorporates
considerable deference to reporters and editors . . . . In general, it is not for a court
or jury to say how a particular story is best covered.” (Shulman, supra, 18 Cal.4th
200, 224-225, fn. omitted.) “By confining our interference to extreme cases, the
courts ‘avoid[] unduly limiting . . . the exercise of effective editorial judgment.”
(Id. at p. 225.)
Defendants claim that plaintiff in this case, unlike the plaintiff in Shulman,
should not be viewed as “an otherwise private person involuntarily involved in an
event of public interest,” because plaintiff voluntarily consented to have the
videotapes of her sessions with Corwin used for educational purposes and set forth
43
in a published article. Plaintiff challenges this view, contending that she gave only
limited consent and that the consent should not be treated as having broadly
opened her life to intensive scrutiny.
We need not resolve that question because, even if we assume, as plaintiff
contends, that plaintiff should be considered “an otherwise private person
involuntarily involved in an event of public interest” within the meaning of the
Shulman decision (Shulman, supra, 18 Cal.4th 200, 224), we conclude that under
the standard set forth in Shulman it is nonetheless clear that the statements here at
issue were newsworthy. As discussed above, a number of the commentators
whose articles about the Jane Doe case study were published with the Child
Maltreatment article itself remarked that it would be important and of interest from
an academic standpoint to learn the effects of the events described in the case
study upon Jane’s future development. In light of the prominence of the Jane Doe
case study in the repressed memory field, we find that the disclosure of such facts
was newsworthy. This is particularly true because the particular revelations at
issue — that Jane Doe engaged in unspecified “destructive behavior” and “is now
in the Navy” — were not of an “[i]ntensely personal or intimate” nature. (Cf.
Shulman, supra, 18 Cal.4th at p. 226 [“the balance of free press and privacy
interests may require a different conclusion when the intrusiveness of the
revelation is greatly disproportionate to its relevance. Intensely personal or
intimate revelations might not, in a given case, be considered newsworthy,
especially where they bear only slight relevance to a topic of legitimate public
concern”].) Under these circumstances, we conclude that the record does not
support a determination that plaintiff has established a prima facie case of
improper disclosure of private facts based upon Loftus’s alleged statement at the
October 2002 professional conference.
44
B. Defamation Action
As noted, in addition to determining that Loftus’s alleged statement at the
October 2002 conference could support a tort action for improper disclosure of
private facts, the Court of Appeal held that this statement also could support a
cause of action for defamation against Loftus. For the reasons discussed hereafter,
we disagree.
The tort of defamation “involves (a) a publication that is (b) false,
(c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure
or that causes special damage.” (5 Witkin, Summary of Cal. Law (10th ed. 2005)
Torts, § 529, p. 782, citing Civ. Code, §§ 45-46 and cases.)
In concluding that the statement at issue could support a cause of action for
defamation, the Court of Appeal held that “this statement is not an expression of
opinion or a subjective professional judgment drawn from fully disclosed facts.
The truth of the factual assertion that [plaintiff] is in the military is undisputed.
However, when viewed in its totality, this challenged statement could reasonably
be interpreted as implying that Taus’ ongoing destructive behavior or the effects of
past behavior make her unfit for military service.”
As an initial matter, even if — contrary to Loftus’s declaration — the two
sentences in question were linked together in a single statement and even if we
assume that the statement was reasonably susceptible of the defamatory meaning
that Loftus intended to imply that plaintiff was unfit for military service, it appears
very doubtful that such a statement properly could be viewed as a statement of fact
(which could support a defamation action), rather than an expression of opinion
(which cannot). (See, e.g., Gregory v. McDonnell Douglas Corp. (1976) 17
Cal.3d 596, 604.)
In any event, we conclude that plaintiff failed to establish a prima facie case
on the defamation claim in light of a factor not raised by the parties or considered
45
by the Court of Appeal — the qualified privilege to which the statements in
question are entitled under the so-called common-interest privilege established by
Civil Code section 47, subdivision (c)(1). (See generally 5 Witkin, Summary of
Cal. Law, supra, Torts, §§ 591-594, pp. 867-874.)16
Civil Code section 47, subdivision (c)(1) provides in relevant part: “A
privileged publication or broadcast is one made: [¶] . . . [¶] (c) In a
communication, without malice, to a person interested therein, (1) by one who is
also interested . . . .” In light of past California cases applying section 47,
subdivision (c)(1), it is clear that the alleged defamatory statement here in
question — a statement made by Loftus, a psychology professor and author, at a
professional conference attended by other mental health professionals and that was
related to the subject of the conference — falls within the reach of this statutory
common-interest privilege. (See, e.g., Lundquist v. Reusser (1994) 7 Cal.4th
1193, 1204 [“The parties do not dispute that the allegedly defamatory statement at
issue in the present case, made by defendants at a seminar to persons sharing a
common interest in horse breeding, were made upon a ‘privileged occasion’ for
purposes of the common-interest privilege”]; Institute of Athletic Motivation v.
16
The potential applicability of Civil Code section 47, subdivision (c) was not
discussed by any of the parties in the trial court or Court of Appeal, but because our
research indicated the potential relevance of this statutory provision, we invited the
parties to file supplemental briefs addressed to the issue and the parties have done
so.
In view of our conclusion that the statutory qualified privilege established
by Civil Code section 47, subdivision (c) applies in the present context, we need
not reach the question whether, as defendants vigorously contend, plaintiff — by
virtue of her repeated consent to have her background and videotaped interviews
publicly disclosed and utilized by Dr. Corwin in professional conferences and other
educational settings — should be considered a limited public figure so as to bring
into play a constitutionally based qualified privilege under the First Amendment of
the federal Constitution.
46
University of Illinois (1980) 114 Cal.App.3d 1, 7-14 [common-interest privilege
applies to letter, criticizing plaintiff’s “sports-specific” psychological testing, that
was sent by university physical education professor to athletic organizations and
sports magazines]; Katz v. Rosen (1975) 48 Cal.App.3d 1032 [common-interest
privilege applies to letter sent by defendant to local bar association complaining of
plaintiff attorney’s conduct]. See generally 2 Smolla, Law of Defamation (2d ed.
1997) § 8.56, pp. 8-36 to 8-38; Eldredge, The Law of Defamation (1978) § 87,
pp. 481, 484-485.)
Under Civil Code section 47, subdivision (c), defendant generally bears the
initial burden of establishing that the statement in question was made on a
privileged occasion, and thereafter the burden shifts to plaintiff to establish that
the statement was made with malice. (Lundquist v. Reusser, supra, 7 Cal.4th
1193, 2002.) Because the evidence presented on the motion to strike clearly
demonstrates that the statements at the October 2002 conference were made on a
privileged occasion, plaintiff bore the burden of establishing a prima facie case
that these statements were made with “[a]ctual malice.” (Civ. Code, § 48a, subd.
4(d).) As we explained in Sanborn v. Chronicle Pub. Co. (1976) 18 Cal.3d 406,
413: “ ‘The malice necessary to defeat a qualified privilege is “actual malice”
which is established by a showing that the publication was motivated by hatred or
ill will towards the plaintiff or by a showing that the defendant lacked reasonable
ground for belief in the truth of the publication and thereafter acted in reckless
disregard of the plaintiff’s rights [citations].’ ”
In our view, the evidence presented in the trial court on the motion to strike
clearly is insufficient to establish a prima facie case of actual malice, that is, to
establish that Loftus, in making the alleged statements at the October 2002
conference, acted out of hatred or ill will toward plaintiff or that Loftus lacked a
reasonable basis for believing in the truth of her statements. It is undisputed that
47
at the October 2002 conference, Loftus did not reveal either Jane Doe’s identity or
the details of the “destructive behavior” that plaintiff’s foster mother had revealed
to Loftus ⎯ circumstances that seemingly belie the claim that Loftus acted out of
hatred or ill will toward plaintiff. Further, although in her declaration plaintiff
explicitly denies engaging in the specific instances of destructive behavior that
Loftus alleges she learned from plaintiff’s foster mother, plaintiff acknowledges in
that declaration that her foster mother may have had concerns that she (plaintiff)
had engaged in such conduct. The declaration filed by plaintiff’s foster mother,
although taking issue with Loftus’s conduct in other respects, does not deny that
the foster mother made such statements to Loftus. Under these circumstances, we
conclude that plaintiff failed to establish a prima facie case that Loftus made the
alleged defamatory statement in question out of hatred or ill will, or with reckless
disregard for the truth of the statements.
Contrary to plaintiff’s contention, the factors upon which plaintiff relies to
support a claim of malice — principally Loftus’s strongly held views on the
repressed memory issue, Loftus’s persistence in investigating the soundness of
Corwin and Olafson’s article despite plaintiff’s objections, and Loftus’s
acknowledged displeasure with the ethical complaint that plaintiff filed against her
with the University of Washington — are not sufficient to support a determination
that Loftus acted with actual malice in making the alleged statements in question
at the October 2002 professional conference. The qualified privilege embodied in
Civil Code section 47, subdivision (c)(1) is intended to provide substantial
protection to statements made on just such an occasion, and the circumstances
relied upon by plaintiff fall far short of providing an adequate basis for finding that
Loftus made these statements with actual malice. (Accord, Weingarten v. Block
(1980) 102 Cal.App.3d 129, 144-151.)
48
Accordingly, we conclude that plaintiff failed to establish a prima facie
case with regard to a cause of action for defamation based upon the statements
alleged to have been made by Loftus at the October 2002 conference.
In sum, we conclude that the Court of Appeal erred in permitting plaintiff’s
action to go forward with respect to Loftus’s alleged statements at the October
2002 conference, either as a cause of action for public-disclosure-of-private-facts
or for defamation.
IV
We next address the Court of Appeal’s holding that plaintiff properly could
pursue a cause of action for improper public disclosure of private facts based upon
Loftus’s disclosure of the initials of plaintiff’s first and last names at a deposition
in an unrelated case. As we explain, we conclude that the Court of Appeal erred in
determining that plaintiff had established a probability of prevailing on such a
claim.
The facts underlying this claim can be briefly summarized. During a
deposition in an unrelated case in which Loftus had been retained as an expert
witness, a question arose regarding Loftus’s recent move from a professorship at
the University of Washington to a position at the University of California at Irvine,
and the plaintiff’s counsel in that proceeding asked Loftus whether she knew the
name of the person who had filed a complaint against her with the University of
Washington. Loftus answered: “I do know her name, but I would rather protect
her privacy.” The deposition continued as follows:
49
“Q: Can you give me the initials?
“A: Well, she’s called Jane Doe in the article.
“Q: I see.
“A: But her real initials are N.T.
“Q: Okay.
“A: I mean, I just didn’t want her name floating around in a public record.”
As noted, the Court of Appeal held that Loftus’s disclosure of plaintiff’s
initials could support a claim for improper public disclosure of private facts. The
court based its determination on its view that plaintiff’s identity was not a matter
of public interest, and because the revelation of plaintiff’s initials was a “clue” to
the true identity of Jane Doe, the Court of Appeal concluded that “a reasonable
jury could find that disclosing this information was both offensive and
objectionable.”
For several reasons, we disagree with the Court of Appeal’s conclusion that
Loftus’s disclosure of plaintiff’s initials during the deposition properly can provide
support for a tort cause of action for improper public disclosure of private facts.
First, even if we assume that the appellate court was correct in concluding that the
identity of the subject of the case study discussed in the Child Maltreatment article
was not a matter of public interest ⎯ an issue that we need not, and do not,
decide ⎯ we believe it is clear that the mere disclosure of plaintiff’s initials could
not properly be considered to constitute a public disclosure of her identity so as to
support an action for public disclosure of private facts.17
17
In this regard, we note that it is this court’s practice to employ initials in
order to protect the privacy of parties or other individuals in circumstances in
which such protection is deemed appropriate. (See Cal. Style Manual (4th ed.
2000) §§ 5:9 to 5:13, pp. 179-181.)
50
Second, it is clear in any event that Loftus’s disclosure of plaintiff’s initials
at the deposition cannot support a claim for improper disclosure of private facts
because the deposition occurred on March 1, 2003, more than two weeks after
plaintiff filed the initial complaint in the present case (on February 13, 2003) in
which plaintiff herself provided her full name and identified herself as the person
who had been identified as Jane Doe in the Child Maltreatment and Skeptical
Inquirer articles. Thus, at the time of the deposition in question, plaintiff already
had revealed her true identity, and Loftus’s deposition answer clearly did not
disclose a private fact whose revelation could be the basis for the imposition of
liability under the public-disclosure-of-private-facts tort. (See, e.g., Sipple v.
Chronicle Publishing Co. (1984) 154 Cal.App.3d 1040, 1047 [“there is no liability
when the defendant merely gives further publicity to information about the
plaintiff which is already public”].)
Accordingly, the Court of Appeal erred in determining that Loftus’s
disclosure of plaintiff’s initials during the deposition in question properly could
provide support for a cause of action for public disclosure of private facts.
V
We next consider the Court of Appeal’s holding that plaintiff properly
could proceed with a cause of action for a distinct invasion-of-privacy tort — the
tort of intrusion into private matters — based upon defendants’ allegedly improper
action in obtaining confidential court records.
In our decision in Shulman, supra, 18 Cal.4th 200, 231, we explained that
California decisions have adopted the formulation of the intrusion-into-private-
matters tort set forth in section 652B of the Restatement (Second) of Torts: “One
who intentionally intrudes, physically or otherwise, upon the solitude or seclusion
of another or his private affairs or concerns, is subject to liability to the other for
invasion of privacy, if the intrusion would be highly offensive to a reasonable
51
person.” In briefly encapsulating this formulation in Shulman, we stated that “the
action for intrusion has two elements: (1) intrusion into a private place,
conversation or matter, (2) in a manner highly offensive to a reasonable person.”
(Shulman, supra, 18 Cal.4th at p. 231.) As explained in Shulman’s full discussion
of this tort, however, the opinion’s concise two-part restatement of the elements of
the tort was not intended to alter either the Restatement’s requirement that the
intrusion upon another’s privacy be intentional, or the Restatement’s recognition
that the tort includes not only highly offensive intentional intrusions into another
person’s private place or conversation but also highly offensive intentional
intrusions upon another person’s private affairs or concerns. With regard to the
latter point, the opinion in Shulman observed: “To prove actionable intrusion, the
plaintiff must show the defendant penetrated some zone of physical or sensory
privacy surrounding, or obtained unwanted access to data about, the plaintiff.
The tort is proven only if the plaintiff had an objectively reasonable expectation of
seclusion or solitude in the place, conversation or data source.” (Id. at p. 232,
italics added.)
As noted, plaintiff contended in the Court of Appeal that she had
established a prima facie case for purposes of the intrusion-into-private-matters
tort based upon defendants’ action in collecting and utilizing private information
concerning plaintiff contained in both public and confidential court files. The
Court of Appeal recognized that plaintiff’s claim is untenable insofar as it is based
upon defendants’ examination and disclosure of medical or other reports contained
in court records that are open to the public, even if the information in the reports
otherwise might be thought of as private information. (See, e.g., Gates v.
Discovery Communications, Inc. (2004) 34 Cal.4th 679, 692 [“ ‘the States may not
impose sanctions on the publication of truthful information contained in official
court records open to public inspection,’ ” quoting Cox Broadcasting Corp. v.
52
Cohn (1975) 420 U.S. 469, 495]; Shulman, supra, 18 Cal. 4th 200, 231.) The
Court of Appeal went on to hold, however, that the record before the trial court
could support a claim that defendants obtained private information from court
records in Solano County relating to plaintiff’s juvenile dependency file that were
not open to the public, and the Court of Appeal found that a cause of action for
intrusion into private matters could be based upon such alleged conduct.
In reaching the latter conclusion, the Court of Appeal relied upon a
statement contained in a declaration filed by Harvey Shapiro, whose private
investigation company, Shapiro Investigations, had been hired by Loftus to search
court records in Solano County. In his declaration, Shapiro stated that one of his
assistants had copied “voluminous public records” on file in the Solano County
court. In concluding that this statement was sufficient to establish a prima facie
case that defendants had obtained information from confidential court files, the
Court of Appeal apparently assumed that the only court records in Solano County
that contained information regarding plaintiff were confidential juvenile
dependency records relating to her. Based on this assumption, the Court of
Appeal determined that although Shapiro’s declaration explicitly referred only to
his assistant’s examination of “public records,” the declaration nonetheless would
support a conclusion that defendants somehow had obtained copies of confidential
court records in Solano County.
After the Court of Appeal filed its opinion, defendants sought rehearing in
that court on the ground that the appellate court’s conclusion on this issue was
based on an erroneous premise. In conjunction with the rehearing petition,
defendants requested that the Court of Appeal take judicial notice of voluminous
records from a number of non-juvenile-dependency proceedings in Solano
County — including a guardianship proceeding and a wrongful death action
brought on plaintiff’s behalf — that are properly open to the public and that
53
contain substantial information relating to plaintiff. The Court of Appeal denied
rehearing as well as the request for judicial notice.
After we granted review, defendants filed a motion requesting that this
court take judicial notice of the records in question. Under Evidence Code section
452, a court may take judicial notice of the records of any court of this state, and
the records in question are relevant to the question whether plaintiff has presented
sufficient evidence to establish a prima facie case that defendants improperly
obtained private information about plaintiff from confidential court records.
Accordingly, we have granted the motion to take judicial notice of the proffered
court records.
In light of the court records from Solano County presented by defendants,
we conclude that the Court of Appeal erred in suggesting that the Shapiro
declaration itself would support a conclusion that defendants collected information
about plaintiff from confidential court records. The Solano County records in
question are court records that are open to the public and that contain numerous
references to plaintiff’s true identity and also identify Cantrell as plaintiff’s foster
mother. (The wrongful death action that is included in the Solano County court
records was filed on behalf of plaintiff by Cantrell as plaintiff’s guardian ad litem.)
Plaintiff failed to present any evidence in opposition to the motion to strike that
would indicate that Shapiro, his assistant, or anyone else improperly obtained
access to confidential court files.
Under these circumstances, we conclude that the Court of Appeal erred in
holding that plaintiff had established a prima facie case of intrusion into private
matters based upon defendants’ collection and dissemination of information
contained in the Solano County court records.
54
VI
Finally, we reach what appears to be plaintiff’s most substantial claim —
the claim that Loftus committed the tort of intrusion-into-private-matters in
obtaining personal information about plaintiff from plaintiff’s former foster
mother, Margie Cantrell, by intentionally misrepresenting her (Loftus’s)
relationship with Corwin. The Court of Appeal held that the evidence before the
trial court was sufficient to permit this cause of action to go forward.
The facts relevant to this claim are contained in three declarations that were
before the trial court: (1) a declaration of Cantrell, filed in conjunction with the
opposition to the motion to dismiss; (2) a supplemental declaration of Loftus, filed
in conjunction with the reply to the opposition; and (3) a declaration by Harvey
Shapiro (the private investigator whose company was hired by Loftus, who
arranged a meeting between Loftus and Cantrell), filed in support of the motion to
dismiss. As we shall see, the version of the relevant events set forth in Cantrell’s
declaration sharply conflicts with the version described in the Loftus and Shapiro
declarations.
In her declaration, Cantrell states that she was plaintiff’s foster mother in
the early 1990’s during plaintiff’s adolescence, that she met Corwin during this
period and “knew that he and Nicole had a professional relationship related to her
past history of child abuse and the painful breakup of her parents’ marriage,” and
that she “found Dr. Corwin to be polite and respectful and considerate of Nicole’s
feelings.” Cantrell further states that in late 1997 she was contacted by Loftus,
who allegedly represented to Cantrell “that she was working with David Corwin,
M.D. to help Nicole” and who asked Cantrell “to come down to an office located
in town to answer a few questions.” Cantrell states in her declaration that “[g]iven
my past contacts with Dr. Corwin, and my understanding of Nicole’s trust in him,
I accepted the invitation in order to help Nicole in any way that I could.”
55
Cantrell indicates in her declaration that when she arrived for the interview
with Loftus, Loftus was seated in a room with a man. When Cantrell entered and
introduced herself, “Dr. Loftus smiled and welcomed me, saying again that she
was working with Dr. Corwin and was actually his supervisor in connection with
the study of Nicole.” According to Cantrell’s declaration: “Dr. Loftus asked if she
could record the interview on audiotape,” and “relying entirely on [Loftus’s]
representations that she worked with Dr. Corwin,” Cantrell agreed. The
declaration continues: “The questioning lasted several hours I believe. During the
course of the interview the questioning about Nicole seemed to become
increasingly hostile. I became concerned and asked Dr. Loftus if she really
worked with Dr. Corwin or something to that effect. . . . I recall that my
confrontation caused a reaction on the part of both the man and the woman. I told
them that I felt that they had not been honest with me and asked them what they
were really doing. They did not respond. I became frightened. . . . I demanded
that they turn the recording machine off. I believe that they did so. . . . I
demanded that they give me the tape. They refused. . . . I left immediately,
extremely upset.”
Cantrell further states in her declaration that after subsequently learning
from Corwin that Loftus was not associated with him, “I felt humiliated because I
had been talking about Nicole’s confidential matters with someone I was led to
believe was bound to respect her confidentiality.” Cantrell states that “[s]ince this
incident, Nicole and I have become estranged,” and that “I am informed that,
because of the interview, Nicole believes that I am no longer trustworthy. This
saddens me deeply.” Cantrell further indicates that “I would never have consented
to be interviewed by [Loftus] if she had disclosed her true identity and focus and
would have said nothing about Nicole without Nicole’s full knowing and
voluntary consent.”
56
After the Cantrell declaration was filed, Loftus filed a supplemental
declaration that stated in relevant part: “I unequivocally deny that I ever
represented myself to Ms. Cantrell — or anyone else — as ‘working with David
Corwin, M.D.’ or that I in any way implied or suggested that I was his ‘supervisor’
or words to this effect. Ms. Cantrell may possibly have misunderstood me when I
undoubtedly mentioned Dr. Corwin’s interviews with Plaintiff. However, again, I
in no way represented myself as associated with Dr. Corwin nor would I.”
Loftus’s supplemental declaration continues: “Further, as the interview
with Ms. Cantrell was never tape-recorded — nor, to my knowledge, was a tape-
recorder even present — the statements in the declaration . . . that refer to a tape-
recording simply make no sense. Finally, in her declaration, Ms. Cantrell declares
that the interview became ‘hostile’ and that she became ‘frightened’ and that she
was ‘extremely upset’ and that she left ‘immediately.’ This characterization of our
interview is entirely inconsistent with my recollection of our lengthy interview
that day which was concluded when Ms. Cantrell posed for photographs with Mr.
Shapiro who she knew already and with me.”
The Shapiro declaration, which was filed prior to Cantrell’s declaration as
an exhibit to defendants’ initial motion to strike, provides additional information
regarding the events leading up to Loftus’s interview with Cantrell. In his
declaration, Shapiro states that Cantrell first came to his office in July 1997, prior
to and with regard to a matter totally unrelated to the matter in which he
subsequently was hired by Loftus. In September 1997, Loftus contacted Shapiro
and requested his help in identifying the Jane Doe referred to in the Corwin article,
involving a case that Loftus believed may have originated in Solano County.
Shapiro assigned one of his assistants to search public records at the Solano
County Clerk’s Office, and in searching relevant court records the assistant
discovered a name (Margie Cantrell) that was familiar to the assistant. In a
57
subsequent telephone conversation between Shapiro and Loftus, Loftus expressed
interest in meeting Cantrell, and Shapiro’s declaration states that
“[s]erendipitously, Ms. Cantrell was in my office speaking to one of my staff,
during my conference with [P]rofessor Loftus.”
Shapiro’s declaration continues: “When [P]rofessor Loftus asked if I could
arrange a meeting between Professor Loftus and Ms. Cantrell, I immediately went
to where Ms. Cantrell was speaking with one of my staff and asked Ms. Cantrell if
she would be willing to discuss her work as a foster mother with a friend of
mine. . . . Ms. Cantrell was delighted to speak about her work as a foster mother
and agreed to meet within the next few days. . . . Several days later, on
September 27, 1997, my assistant . . . , [P]rofessor Loftus, and I met with Ms.
Margie Cantrell, in my Fairfield, California office. . . . Ms. Cantrell was delighted
to be interviewed, provided four hours of information and gave [P]rofessor Loftus
a great many details, including names, addresses and such of and concerning
Plaintiff Nicole Taus.” Finally, the Shapiro declaration additionally states:
“Subsequent to her interview, Ms. Cantrell returned to my office with photos and
more information of and concerning Plaintiff Nicole Taus.”
As these declarations reveal, there is a sharp conflict in the evidence in the
record regarding whether Loftus represented herself to Cantrell as working with or
associated with Dr. Corwin. Cantrell asserts that Loftus repeatedly made such a
representation; Loftus vigorously denies making any such representation. At the
present stage of the proceeding, we have no occasion to resolve this conflict. As
we have explained above (ante, pp. 35-36), under the standard set forth in past
cases interpreting and applying section 425.16, an action may not be dismissed
under this statute if the plaintiff has presented admissible evidence that, if believed
by the trier of fact, would support a cause of action against the defendant. (See,
e.g., Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th 811, 821.)
58
Accordingly, although it is certainly possible that a trier of fact could find that
Cantrell’s version of the asserted events has been distorted by her acknowledged
desire to regain the lost trust and confidence of plaintiff (her former foster
daughter), at this juncture our role is limited to determining only whether, if the
trier of fact were to find that Loftus made the alleged misrepresentations to
Cantrell in order to obtain personal information concerning plaintiff and obtained
such information by virtue of those misrepresentations, this conduct would be
sufficient to support a cause of action by plaintiff for the tort of intrusion into
private matters.
As discussed above, in order to prevail on an intrusion-into-private-matters
cause of action, a plaintiff must establish that the defendant intentionally intruded
into a private place, conversation, or matter in a manner highly offensive to a
reasonable person. (See, ante, pp. 51-52; Shulman, supra, 18 Cal.4th 200, 231.)
Further, as explained in Shulman, “[t]o prove actionable intrusion, the plaintiff
must show the defendant penetrated some zone of physical or sensory privacy
surrounding, or obtained unwanted access to data about, the plaintiff. The tort is
proven only if the plaintiff had an objectively reasonable expectation of seclusion
or solitude in the place, conversation, or data source.” (Id. at p. 232.)
The initial question is whether the asserted facts demonstrate that Loftus
intruded into a private place, conversation, or matter as to which plaintiff
possessed a reasonable expectation of privacy. Loftus’s alleged conduct did not
involve entering a private place such as plaintiff’s home or hospital room or
tapping her phone, but rather interviewing her former foster mother (Cantrell),
whose identity Loftus learned from publicly available court records. Defendants
contend that plaintiff had no “objectively reasonable expectation of seclusion or
solitude” in the “data source” here, because Cantrell was free to disclose sensitive
and personal facts that she knew about plaintiff.
59
In support of this contention, defendants rely on, among other cases,
Humphers v. First Interstate Bank of Oregon (Or. 1985) 696 P.2d 527, a leading
decision in this area authored by Justice Hans Linde. In Humphers, the plaintiff
was a biological mother who had given up a daughter for adoption and had not
generally revealed the matter to others, relying on state law providing
confidentiality for such adoption records. When the daughter was 17 years of age,
she sought and found the physician who had admitted her mother to the hospital.
The physician agreed to help the daughter find her biological mother, revealed the
mother’s prior name to the daughter, and also prepared a false statement indicating
that the physician had administered a medication to her mother that made it
important for the daughter to locate her biological mother. Using the statement
provided by the physician, the daughter was able to obtain the sealed medical
records of the adoption, and then ultimately was able to locate her biological
mother. The biological mother was very upset by this development, allegedly
suffering emotional distress, humiliation, embarrassment, and an inability to
function normally, and thereafter brought the action in question against the estate
of her former physician (who had died in the interim), seeking to recover on a
variety of causes of action, including one for breach of confidence and another for
offensive intrusion upon her privacy, based upon the physician’s disclosure of the
mother’s identity to her daughter.
In Humphers, the Oregon Supreme Court concluded that, on these facts, the
mother could recover from the physician’s estate for breach of confidence, but that
a cause of action would not lie for improper intrusion. The court in Humphers
held that although a defendant who was under a legal obligation not to reveal
information — as was the physician in this case, because the information was
confidential and privileged — could be held liable for breach of confidence, when
information known by one person concerning another person is not protected
60
under the law by any such rule of confidentiality, the person who reveals the
information cannot be held liable for unauthorized intrusion upon privacy, because
he or she is under no legal obligation to keep the information private. (See
Humphers, supra, 696 P.2d 527, 529-533.)
The decision in Humphers, supra, 696 P.2d 527, is distinguishable from the
present case in a significant respect. In Humphers, the intrusion-into-private-
matters action was brought against the person who revealed the information (there,
the physician), and the court’s rejection of a cause of action for intrusion was
based on a reluctance to define the intrusion tort so expansively as to impose
liability upon a person simply for revealing information that the person was under
no specific legal obligation to maintain confidential. (See id. at pp. 529-530, 532-
533.) In the present case, by contrast, plaintiff is not suing Cantrell — the person
who disclosed the personal information about her — but rather is suing an
investigator who allegedly utilized a misrepresentation to obtain personal
information concerning plaintiff from Cantrell. The rationale underlying the
court’s rejection of an intrusion cause of action in Humphers does not necessarily
apply to the present setting. Indeed, the court in Humphers was careful to point
out in its opinion that although “[t]he [intentional] use of a false medical document
to gain access to the [mother’s medical] records” might well give rise to liability,
“[the plaintiff’s daughter] is not a defendant here, and the complaint does not
allege that she asked [the doctor] to prepare a false letter or knew that it was
false.” (Humphers, supra, 696 P.2d 527, 533, fn. 13.)
Accordingly, although we agree, as Humphers and numerous other cases
teach, that a person generally has no right to maintain an action for improper
intrusion against a relative or close friend for voluntarily disclosing personal
information about him or her to another, it does not necessarily follow that no
violation of a person’s reasonable expectation of privacy occurs when a third
61
party ⎯ for example, a private investigator ⎯ obtains access to personal
information about the person from his or her relatives or friends by utilizing
improper and unanticipated means, particularly when such information would not
have been disclosed by the relative or friend absent the third party’s use of such
means. As a matter of common experience, there is a significant difference
between the disappointment one feels when a relative or friend reveals one’s
personal secrets, and the affront to one’s personal integrity and individual dignity
(see Shulman, supra, 18 Cal. 200, 231) that results when a third party, with whom
one has no personal relationship, uses improper and unauthorized means to obtain
access to such personal, private information. As we pointed out in Sanders v.
American Broadcasting Companies (1999) 20 Cal.4th 907, 916, “privacy, for
purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There
are degrees and nuances to societal recognition of our expectations of privacy: the
fact that the privacy one expects in a given setting is not complete or absolute does
not render the expectation unreasonable as a matter of law.” In Sanders itself, we
held that an employee who lacked a reasonable expectation of complete privacy in
workplace conversations because they could be seen and overheard by coworkers
(but not by the general public) nonetheless could maintain a cause of action for
intrusion into private matters against a television reporter who, in pursuit of a
story, obtained employment in the workplace and thereafter covertly videotaped
numerous workplace conversations. (20 Cal.4th at pp. 914-923.)
As already noted, in discussing the intrusion-into-private-matters tort in
Shulman, supra, 18 Cal.4th 200, 230-232, we explained that the California
decisions applying this tort have drawn heavily upon the description of the tort in
section 652B of the Restatement Second of Torts. One of the illustrative examples
accompanying this section makes clear that an action for intrusion properly can be
based upon a defendant’s obtaining personal information about the plaintiff from
62
another person or entity by improper means. Illustration 4 of comment b to
section 652B states: “A is seeking evidence for use in a civil action he is bringing
against B. He goes to the bank in which B has his personal account, exhibits a
forged court order, and demands to be allowed to examine the bank’s records of
the account. The bank submits to the order and permits him to do so. A has
invaded B’s privacy.” (Rest.2d Torts, § 652B, com. b, pp. 378-379; see also, e.g.,
Zimmermann v. Wilson (3d Cir. 1936) 81 F.2d 847, 849 [one of the cases upon
which illustration 4 is based: “We rest on substance when we regard the right of
Zimmermann and his wife . . . as the real parties in interest, and their bankers and
brokers as mere agents. . . . It is the information the bankers’ books contain, and
not the books in which that information is recorded, that is the property right . . .
this court protects by injunctive relief. . . . [W]e regard the search here asserted as
a violation of the natural law of privacy in one’s own affairs which exists in liberty
loving people and nations”]; Swarthout v. Mutual Service Life Ins. Co.
(Minn.Ct.App. 2001) 632 N.W.2d 741, 745 [action for intrusion could be
maintained against insurance company that, without the insured’s permission,
added the names of an additional physician and medical clinic to a medical release
form signed by the insured, and that employed the altered form to obtain medical
information from those additional sources]; Corcoran v. Southwestern Bell Tel.
Co. (Mo.Ct.App. 1978) 572 S.W.2d 212, 215-216 [actionable intrusion tort stated
where defendant obtained plaintiff’s phone bill from the telephone company by
deception and opened the bill without plaintiff’s permission].)
Although none of the foregoing cases involved an instance in which a
defendant utilized a misrepresentation or some other improper means to obtain
private information about a person from a relative or friend (rather than, for
example, from a bank or telephone company), nothing in those cases suggests that
a person forfeits his or her reasonable expectation of privacy in the “private affairs
63
or concerns” that the intrusion tort was designed to protect (Rest.2d Torts, § 652B)
by, for example, storing private papers or sharing very personal information with a
relative or close friend. Although in such an instance the person assumes the risk,
for purposes of the intrusion tort, that the relative or friend may betray his or her
confidence by voluntarily disclosing the information, there is no reason to
conclude that the person does not retain a reasonable expectation of privacy that
may be violated when a third-party defendant, by intentionally engaging in
improper and unforeseen conduct, gains unauthorized and unwanted access to
such information from such a relative or friend. Just as the plaintiff in Sanders v.
American Broadcasting Companies, supra, 20 Cal.4th 907, retained a reasonable
expectation of privacy that was violated when his conversations with coemployees
in a nonpublic workplace were covertly videotaped by an undercover journalist,
and just as a person retains a reasonable expectation of privacy that is violated
when a third party defendant, by wiretapping a phone conversation or
surreptitiously recording an in-person conversation, gains access to private
information that the person has chosen to share with another person, a person
similarly retains a reasonable expectation of privacy that may be violated when a
third-party defendant, by engaging in improper and unforeseen conduct, gains
access to private information about the person from the person’s relative or friend.
As a general matter, of course, a person’s relatives and close friends
frequently are privy to a great deal of the person’s most private personal and
family secrets — including, for example, potentially embarrassing and harmful
information concerning the person’s medical condition, the person’s sexual
activities and orientation, whether the person has been subjected to sexual or
physical abuse either within his or her family or otherwise, and the person’s
youthful indiscretions or misbehavior. Unlike a person’s appearance or activities
that occur in a public place (see, e.g., Aisenson v. American Broadcasting Co.
64
(1990) 220 Cal.App.3d 146, 162-163), and unlike personal information about a
person that is contained in a public record open to inspection by the general public
as a matter of law (Rest.2d Torts, § 652B, com. c., pp. 379-380; Gates v.
Discovery Communications, Inc., supra, 34 Cal.4th 679, 692), personal
information about a person that happens to be known by the person’s relatives or
close friends is not information that has entered the public domain. A person’s
interest in preserving the privacy of such information — the very interest the
intrusion tort was designed to protect — would be substantially undermined if a
would-be investigator could employ any means whatsoever to extract or obtain
such private information from a relative or close friend.
To put forth a few extreme examples, it is clear that a person’s reasonable
expectation of privacy would be violated if a private investigator — who was
determined to obtain private information about the person that was otherwise
unavailable to the investigator — broke into the home of a relative or close friend
of the target of the investigation and copied a diary or other private papers that the
target had left with the relative or friend for safekeeping, or, alternatively,
physically threatened, blackmailed, wiretapped, hypnotized, or administered a
drug to such a relative or friend to obtain private information about the target that
the relative or friend would not have voluntarily disclosed. (See, e.g., Sheets v.
Salt Lake County (10th Cir. 1995) 45 F.3d 1383, 1388 [holding that the plaintiff
husband had a reasonable expectation of privacy in entries in his wife’s diary that
related to him: “The fact that Mr. Sheets did not author the information does not
prohibit him from having a distinct privacy interest in the dissemination of
information written about the personal aspects of his life. . . . [¶] . . . We find that
information conveyed to one’s spouse or that one’s spouse has observed about
65
one’s character, marriage, finances, and business to be personal in nature and
subject to a reasonable expectation of privacy”].)18 Although in each of those
instances the relative or friend would be able to pursue his or her own distinct tort
cause of action against the private investigator, in many cases the most serious
harm or damage will have been incurred by the person whose private information
was the target of and the impetus for the intrusive misconduct, and the intrusion-
into-private-matters tort is specifically intended to provide a remedy to the person
who has sustained an invasion of his or her privacy by virtue of the misconduct.
18
In Sheets v. Salt Lake County, supra, 45 F.3d 1383, the reasonable-
expectation-of-privacy issue arose in the context of a federal civil rights action filed
by the plaintiff husband against the defendant county, based on the disclosure by
the county sheriff’s office of the contents of his wife’s diary that had been obtained
by the sheriff in connection with a murder investigation. In Sheets, the federal
circuit court concluded that the husband could maintain an action for violation of
his constitutional right of privacy, because he had a reasonable expectation of
privacy with regard to the personal information relating to him contained in his
wife’s diary.
Although the holding in Sheets rested upon the scope of the federal
constitutional right of privacy rather than of the common law intrusion tort, we
believe the court’s conclusion in Sheets nonetheless is relevant to the issue before
us. In our view, there is no reason to suggest that the scope of an individual’s
reasonable expectation of privacy that is protected by the common law intrusion-
into-privacy tort is less extensive than the scope of the reasonable expectation of
privacy that qualifies for constitutional protection under the federal Constitution.
The common law intrusion tort was developed to provide a remedy for highly
offensive intrusions upon privacy that otherwise would go unredressed (see
generally Prosser, Privacy (1960) 48 Cal.L.Rev. 383, 389-392), and, as a matter of
logic and reason, this common law remedy properly should apply to intrusions
upon privacy that do not necessarily rise to the level of a federal constitutional
violation. Accordingly, in our view the decision in Sheets properly can be seen as
providing support for the general proposition that, for purposes of the intrusion tort,
a person may possess a reasonable expectation of privacy in personal information
about him or her that is known to the person’s close relatives or friends — a
reasonable expectation of privacy that may be violated when such information
improperly is obtained by a third party.
66
(Accord, Zimmermann v. Wilson, supra, 81 F.2d 847, 849 [“We rest on substance
when we regard the right of Zimmermann and his wife . . . as the real parties in
interest, and their bankers and brokers as mere agents. . . . It is the information the
bankers’ books contain, and not the books in which that information is recorded,
that is the property right . . . this court protects by injunctive relief”].)
In the present case, Loftus was seeking to obtain from Cantrell, plaintiff’s
former foster mother, personal information about plaintiff relating both to
plaintiff’s memory of ostensible sexual abuse to which plaintiff had been
subjected as a child by her mother, and to the effect of plaintiff’s asserted recovery
of that memory on plaintiff’s subsequent behavior and emotional well-being —
certainly the type of information as to which a person ordinarily would possess a
reasonable expectation of privacy. (In this regard, it is relevant to recall that at the
time Cantrell agreed to speak to Loftus about these matters, the fact that plaintiff
was the “Jane Doe” referred to in Corwin and Olafson’s 1997 Child Maltreatment
article, or, indeed, the circumstance that plaintiff assertedly had been sexually
abused as a child, was not a matter of general or public knowledge.) Furthermore,
as revealed by Loftus’s declaration, through her questioning of Cantrell, Loftus
was able to obtain access to previously undisclosed information concerning
plaintiff’s alleged promiscuity and drug use following her 1995 session with
Corwin — again, the kind of very personal and potentially embarrassing or
detrimental information as to which a person ordinarily would possess a
reasonable expectation of privacy.
Of course, unlike some of the hypothetical scenarios described above, in
the present case Loftus did not obtain access to this very personal information
about plaintiff by breaking into Cantrell’s home or by wiretapping her telephone,
but instead obtained the information by questioning Cantrell. Because plaintiff
had agreed to permit Corwin to use her case study at educational seminars and in
67
an article published in a scientific journal — albeit without identifying plaintiff by
name — it may well be that plaintiff could not have had an objectively reasonable
expectation that an investigator or academic researcher, like Loftus, would not
discover her identity and pose probing questions to Cantrell relating to such
personal matters. In any event, because, as explained below, as a matter of law
Loftus’s simple engagement in such questioning would not constitute “highly
offensive” conduct (see post, at pp. 70-71), it is clear that plaintiff would have no
cause of action under the intrusion tort if, in response to such questioning by
Loftus, Cantrell freely and voluntarily revealed this personal information about
plaintiff to Loftus.
According to Cantrell’s declaration, however, Loftus did not simply
approach Cantrell with questions about plaintiff, but instead misrepresented her
(Loftus’s) relationship with Corwin (a psychiatrist with whom plaintiff had a
friendly and trusting professional relationship) — stating that she (Loftus) was
Corwin’s associate or supervisor — in order to persuade Cantrell to disclose
personal information about plaintiff to Loftus. If Loftus engaged in such behavior,
we cannot say, as a matter of law, that such questionable and unorthodox action
constitutes conduct that plaintiff reasonably should have foreseen or anticipated.
Instead, we believe a jury could find that plaintiff reasonably expected that an
investigator would not seek and obtain access to such personal information about
her from a relative or friend by falsely posing as an associate or supervisor of a
mental health professional in whom plaintiff had confided.
As we explained in Sanders v. American Broadcasting Companies, supra,
20 Cal4th 907, 918, “[p]rivacy, for purposes of the intrusion tort[,] must be
evaluated with respect to the identity of the alleged intruder and the nature of the
intrusion.” Taking those factors into account, we believe that a jury reasonably
could find that if, as Cantrell asserts, Loftus obtained private, personal information
68
about plaintiff by misrepresenting herself to Cantrell as Corwin’s associate or
supervisor, Loftus’s conduct violated plaintiff’s reasonable expectation of privacy.
(Accord Sanders, supra, 20 Cal.4th at p. 926 [“Because . . . the reasonableness of
a privacy expectation must be assessed in reference to the identity of the intruder
and the nature of the claimed intrusion, the proper question for the jury to decide
was, indeed, whether plaintiff could reasonably expect he would not be secretly
videotaped in his internal workplace interactions by a representative of the mass
media”].) 19
19
At oral argument, defendants’ counsel suggested that Loftus’s alleged
conduct should not be viewed as a violation of plaintiff’s reasonable expectation of
privacy under the particular facts of this case, because plaintiff assertedly was
“estranged” from Cantrell at the time Loftus interviewed Cantrell. We believe this
argument lacks merit for a number of reasons. First, although the record indicates
that plaintiff had left Cantrell’s home and no longer was residing with her at the
time Loftus approached Cantrell, the record certainly does not establish, as a matter
of law, that Cantrell felt so estranged from plaintiff at that time that plaintiff
reasonably could have no expectation that Cantrell would respect her privacy with
regard to information concerning the childhood sexual abuse allegedly sustained by
plaintiff at the hands of her mother. On the contrary, Cantrell’s declaration states
that at the time Loftus approached her, Cantrell was very much concerned with
respecting plaintiff’s privacy and would not have disclosed to Loftus information
relating to plaintiff’s personal life had Cantrell known that Loftus was not
associated with Corwin. Thus, as a factual matter, this contention cannot be
sustained.
Second, even if a jury were to find that plaintiff’s separation from Cantrell
diminished plaintiff’s reasonable expectation that Cantrell would not voluntarily
disclose private information about her to others, it would not follow that a jury
could not find that Loftus’s conduct nonetheless violated plaintiff’s reasonable
expectation of privacy. As explained above, even if plaintiff could not have had a
reasonable expectation that Cantrell would not voluntarily disclose such
information, a jury could find that plaintiff reasonably could expect that an
unrelated investigator ― like Loftus ― would not engage in the unorthodox and
improperly intrusive conduct of persuading Cantrell to reveal personal information
about her by intentionally misrepresenting herself as an associate of Corwin (a
psychiatrist trusted by plaintiff and to whom plaintiff already had disclosed
(footnote continued on next page)
69
The question remains whether a trier of fact properly could determine that
the alleged conduct here at issue constituted “highly offensive conduct” that can
be the basis for tort liability, or whether, as a matter of policy, such conduct should
be considered, as a matter of law, not highly offensive for purposes of the
intrusion tort.
In discussing this general subject in Shulman, supra, 18 Cal.4th 200, 236-
237, our decision explained that the use of “ ‘ “routine . . . reporting techniques,” ’
such as asking questions of people with information (‘including those with
confidential or restricted information’) could rarely, if ever, be deemed an
actionable intrusion.” (Shulman, supra, 18 Cal.4th at p. 237; accord, e.g., Smith v.
Daily Mail Publishing Co. (1979) 443 U.S. 97, 103 [the First Amendment protects
the right of journalists to obtain information using “routine newspaper reporting
techniques”].) At the same time, we observed in Shulman that “violation of well-
established legal areas of physical or sensory privacy — trespass into a home or
tapping a personal telephone line, for example — could rarely, if ever, be justified
by a reporter’s need to get the story. . . . [¶] Between these extremes lie difficult
cases . . . .” (Shulman, supra, 18 Cal.4th at p. 237.)
As already noted, in the present case the investigative conduct of Loftus at
issue consisted of asking questions of a person who possessed information
concerning plaintiff rather than intruding into plaintiff’s home or tapping her
phone. As the passage from Shulman, supra, 18 Cal.4th 200, 237, quoted above
makes clear, Loftus would not be subject to liability under the intrusion tort if she
simply posed questions concerning plaintiff to Cantrell — even questions probing
(footnote continued from previous page)
information related to her memories of the sexual abuse she ostensibly had suffered
as a child).
70
into highly personal matters relating to plaintiff — and Cantrell voluntarily had
provided such information. As we have seen, however, Cantrell’s declaration
asserts that Loftus did not simply inquire about plaintiff but rather misrepresented
her (Loftus’s) relationship with Corwin — stating she was Corwin’s associate or
supervisor — in order to obtain sensitive information concerning plaintiff. Loftus,
as we have noted, emphatically denies making any such misrepresentation, but in
view of the procedural posture of this case we are limited to determining only
whether, if a jury were to find that Loftus made such a misrepresentation to
Cantrell, tort liability could be imposed on Loftus for improper intrusion on
plaintiff’s privacy.
An amicus curiae brief filed in this court on behalf of a number of news
media entities and organizations cautions against permitting a cause of action for
intrusion to be based solely on uncorroborated allegations ― made by a “source”
interviewed by a reporter or other investigator ― that assert the reporter or
investigator obtained information from the source through misrepresentation. The
amicus curiae brief argues that in many instances in which a reporter utilizes
information obtained from a source to write an article that the source ultimately is
unhappy with, the source may claim, after the fact, that the reporter ⎯ to obtain
the information disclosed in the article ⎯ failed to be forthright in disclosing his
or her motives, position, or point of view to the source.20 The brief maintains that
20
The amicus curiae brief states in this regard: “When the subject of an
unflattering or critical news report complains to a source of information for that
report who allegedly revealed private or injurious information to a reporter, it
creates a motive for the source to belatedly contend that the reporter obtained the
information by misrepresentation; that the reporter agreed to treat the information
as ‘off-the-record’; that the source was misquoted; that the source’s statement was
taken out of context; or that the reporter engaged in some other alleged misconduct
to procure the information.”
71
permitting a subject about whom unflattering information has been obtained from
a third party source to sue the reporter or investigator for offensive intrusion into
the subject’s privacy on the basis of such a claim of misrepresentation would have
an undesirable chilling effect on the gathering and publication of newsworthy
material.21 The amicus curiae brief points to a number of cases that have rejected
a cause of action for intrusion based on information revealed by a third party, even
in circumstances in which the plaintiff alleged that a reporter or investigator
employed some sort of fraud or subterfuge to obtain the information. (See, e.g.,
Desnick v. American Broadcasting Co.. (7th Cir. 1995) 44 F.3d 1345, 1351-1355;
Rifkin v. Esquire Publ’g (C.D.Cal. 1982) 1982 U.S.Dist.LEXIS 18405.)
The concerns raised by the amicus curiae brief appear quite reasonable and
clearly demonstrate the danger and inadvisability of adopting a broad rule under
which any type of misrepresentation by a reporter, investigator, or scholar to
obtain information would be considered sufficient to support a cause of action for
intrusion into private matters.
At the same time, however, we believe it is important to recognize that
there are at least some types of misrepresentations that are of such an especially
egregious and offensive nature — and are quite distinguishable from the types of
ruses that ordinarily may be employed in gathering news — that they properly
may be considered “beyond the pale” for purposes of the intrusion tort, even when
the misrepresentation is made to friends or relatives of the subject of an inquiry
who are under no legal obligation not to reveal private information about the
subject of the inquiry. For example, consider an instance in which an
21
“[F]rom a reporter’s perspective, the decision below renders a conversation
between a reporter and a source a veritable minefield from which any reporter
might be wise to withdraw.”
72
unscrupulous or overly ambitious investigative reporter or private investigator,
interested in discovering whether a public official (or any other person) has a
particular medical condition or is taking a specific medication, makes a telephone
call to a spouse, adult child, or close friend of the official, pretends to be an
emergency room physician or paramedic, and asks the relative or friend to disclose
the medical information ostensibly to assist in the treatment of the official. Even
though (1) a public official’s right of privacy is limited in many respects, (2) the
information in question, because of the official’s position, might well be
considered “newsworthy” for publication purposes, and (3) the relative or friend
might be under no legal obligation to keep the information confidential, we
believe a jury reasonably could find that this type of misrepresentation is “highly
offensive” to a reasonable person and that the subject of the inquiry had an
“objectively reasonable expectation of seclusion or solitude in the . . . data source”
(Shulman, supra, 18 Cal.4th 200, 232) that was violated by the investigator’s use
of such a tactic to obtain private information from a relative or friend who would
not have divulged the information but for the flagrant nature of the
misrepresentation.
The alleged misrepresentation at issue in the present case, of course, is not
as egregious as that described in the foregoing hypothetical example, but the
asserted misrepresentation in question nonetheless is of a particularly serious and
potentially offensive nature that does share a number of the troubling aspects of
that hypothetical. As noted, Cantrell’s declaration states that Loftus
misrepresented herself as associated with ⎯ indeed even the supervisor of ⎯
Corwin, a psychiatrist in whom Cantrell knew plaintiff had confided and with
whom plaintiff had an on-going, friendly professional relationship. Cantrell states
in her declaration that Loftus’s asserted misrepresentation led Cantrell to believe
that Loftus “was bound to respect [plaintiff’s] confidentiality” and that she
73
(Cantrell) “never would have consented to be interviewed by [Loftus] if [Loftus]
had disclosed her true identity and focus and [that she (Cantrell)] would have said
nothing about [plaintiff] without [plaintiff’s] full knowing and voluntary consent.”
And Loftus’s declaration discloses that in the course of her interview with
Cantrell, Cantrell revealed a number of highly private matters regarding plaintiff
that a parental figure who cared about her foster child’s welfare ordinarily would
not be expected to disclose to a stranger — for example, that in 1995, shortly after
apparently recovering her memories of her childhood sexual abuse, plaintiff
“started sleeping with boys and doing drugs.”
In our view, intentionally misrepresenting oneself as an associate or
colleague of a mental health professional who has a close personal relationship
with the person about whom one is seeking information would be a particularly
serious type of misrepresentation, and one significantly different from the more
familiar practice of a news reporter or investigator in shading or withholding
information regarding his or her motives when interviewing a potential news
source. Special legal protection is provided to information communicated in the
course of a physician-patient or psychotherapist-patient relationship (Evid. Code,
§§ 994, 1014), and even if plaintiff’s relationship with Corwin was not of a nature
that would bring information revealed to Corwin within an evidentiary privilege,
the relationship bore a close similarity to such a relationship. Misrepresentations
of this nature by either a reporter or an academic investigator could undermine
legitimate professional relationships and would be especially troublesome,
because they would take advantage of the desire and willingness of relatives and
friends to provide assistance to professionals who they believe will use any
personal information that is revealed to help the subject of the inquiry.
Because of these special and unusual considerations, we believe that if a
trier of fact were to find that Loftus engaged in the particular type of
74
misrepresentations alleged by Cantrell, the conduct properly could be found
“highly offensive” for purposes of the intrusion-into-private-matters tort and
liability could be imposed upon Loftus.22
22
In Shulman, supra, 18 Cal.4th 200, 236-237, in discussing the application of
the offensiveness element in the context of activities engaged in by the news media,
we stated that “[i]n deciding . . . whether a reporter’s alleged intrusion into private
matters . . . is ‘offensive’ and hence actionable as an invasion of privacy, courts
must consider the extent to which the intrusion was, under the circumstances,
justified by the legitimate motive of gathering the news. Information-collecting
techniques that may be highly offensive when done for socially unprotected reasons
— for purposes of harassment, blackmail or prurient curiosity, for example —
may not be offensive to a reasonable person when employed by journalists in
pursuit of a socially or politically important story.”
A number of journalistic codes of ethics caution that “surreptitious methods
of gathering information” should be avoided “except when traditional open
methods will not yield information vital to the public.” (Society of Prof.
Journalists, Code of Ethics (1996) <http://spj.org/pdf/ethicscode.pdf>[as of Feb.
26, 2007]; see also Radio-Television News Directors Assn., Code of Ethics of Prof.
Conduct [“Professional electronic journalists should [¶] . . . [¶] [u]se surreptitious
newsgathering techniques . . . only if there is no other way to obtain stories of
significant public importance and only if the technique is explained to the
audience”] <www.rtnda.org/ethics/coe.html>[as of Feb. 26, 2007]; Steele, When
Might It Be Appropriate to Use Deception/Misrepresentation/ Hidden Cameras in
Newsgathering? (Feb. 1, 1995) for Poynter Institute Ethics Series [listing, as one of
the necessary prerequisites to the use of deception or misrepresentation in
newsgathering, “[w]hen the information obtained is of profound importance. It
must be of vital public interest, such as revealing great ‘system failure’ at the top
levels, or it must prevent profound harm to individuals”]
<http://www.poynter.org/content/content_view. asp?id=866>[as of Feb. 26, 2006].)
In the present case, of course, Loftus has denied engaging in any
misrepresentation to obtain information from Cantrell (or anyone else), but
defendants assert that even if Loftus made a misrepresentation to Cantrell, Loftus’s
actions should be considered, as a matter of law, not highly offensive, in light of
plaintiff’s consent to Corwin’s use of her case study in educational seminars and a
published article. Even if plaintiff’s consent to the public use of her case study
rendered her a limited public figure, however, that status would not in itself justify
the use of the particular type of misrepresentation here at issue; as discussed above,
even “all purpose” public figures (see Khawar v. Globe Internat., Inc. (1998) 19
(footnote continued on next page)
75
Thus, we conclude that in light of the particular nature of the
misrepresentation attributed to Loftus by the Cantrell declaration, the Court of
Appeal properly determined that the evidence presented by plaintiff is sufficient to
establish a prima facie case under the intrusion-into-private-matters tort.23
(footnote continued from previous page)
Cal.4th 254, 263) such as public officials are entitled to be protected from having
investigators conduct inquiries into their private information by pretending to be
the public figure’s physician or psychiatrist. (Ante, pp. 72-73.)
Furthermore, although it is conceivable that there may be some
circumstances in which the need for information is so vital that resort to even the
type of very questionable investigative tactic here at issue could not properly be
found to be highly offensive to a reasonable person, we believe it is clear that this
case does not fall within that narrow category. Here, although the additional
information concerning plaintiff that Loftus sought to obtain from Cantrell was
newsworthy, there was no profound or overriding public need that, as a matter of
law, justified resort to the particular type of potentially insidious stratagem that,
according to Cantrell, was utilized by Loftus in this case. (Accord, Shulman,
supra, 18 Cal.4th 200, 240 [“the fact that a reporter may be seeking ‘newsworthy’
material does not in itself privilege the investigatory activity”].)
23
In reaching a contrary conclusion, the concurring and dissenting opinion
mischaracterizes our discussion on a significant point and, in addition, ignores a
key portion of the analysis of the reasonable-expectation-of-privacy element of the
intrusion tort set forth in our decision in Sanders, supra, 20 Cal.4th 907.
First, contrary to the concurring and dissenting opinion’s suggestion (post,
pp. 11-12), we have explained above that the information about plaintiff that Loftus
sought to obtain and succeeded in obtaining from Cantrell — information relating
to the ostensible sexual abuse to which plaintiff had been subjected as a child by
her mother and to the detrimental effect of plaintiff’s asserted recovery of that
memory on plaintiff’s subsequent behavior and emotional well-being — is the type
of information as to which a person would possess a reasonable expectation of
privacy (ante, p. 67) and is information “that a parental figure who cared about her
foster child’s welfare ordinarily would not be expected to disclose to a stranger.”
(Ante, p. 74.) Although the concurring and dissenting opinion points to another
passage in our opinion to suggest a contrary conclusion, that passage does not
support the concurring and dissenting opinion’s reading. In that separate passage,
after explaining that the record in this case does not support the claim that Cantrell
was estranged from plaintiff at the time Loftus interviewed Cantrell, we state that
(footnote continued on next page)
76
(footnote continued from previous page)
“even if a jury were to find that plaintiff’s separation from Cantrell diminished
plaintiff’s reasonable expectation that Cantrell would not voluntarily disclose
private information about her to others, it would not follow that a jury could not
find that Loftus’s conduct nonetheless violated plaintiff’s reasonable expectation of
privacy.” (Ante, p. 69, fn. 19, first italics added.) Contrary to the implication of
the concurring and dissenting opinion, this passage does not indicate we have
concluded that plaintiff did not possess a reasonable expectation of privacy in the
information Loftus obtained from Cantrell. As explained, we conclude that
plaintiff did possess a reasonable expectation of privacy with regard to such deeply
personal information.
Second, in analyzing the reasonable-expectation-of-privacy prong of the
intrusion tort, the concurring and dissenting opinion fails to take into account this
court’s explicit recognition in Sanders, supra, 20 Cal.4th 907, 918, that “[p]rivacy
for purposes of the intrusion tort must be evaluated with respect to the identity of
the alleged intruder and the nature of the intrusion.” (Italics added.) In Sanders, in
rejecting a claim that the trial court had erred in its instructions to the jury on the
reasonable-expectation-of-privacy element, we explained that “[t]he disputed
instructions merely focused the jury’s inquiry on the question whether it was
reasonable for plaintiff to expect, in the circumstances of his particular workplace,
that an interaction would not be subject to covert videotaping by a television news
producer. Because, as we have explained, the reasonableness of a privacy
expectation must be assessed in reference to the identity of the intruder and the
nature of the claimed intrusion, the proper question for the jury to decide was,
indeed, whether plaintiff could reasonably expect he would not be secretly
videotaped in his internal workplace interactions by a representative of the mass
media.” (20 Cal.4th at p. 926, italics added.) In light of this clear explanation in
Sanders, we believe it is entirely appropriate and consistent with governing
precedent to describe the relevant reasonable-expectation-of-privacy question in
this case as whether plaintiff reasonably could expect that an investigator would not
seek and obtain access to personal information relating to her memory of childhood
sexual abuse from her foster mother “by falsely posing as an associate or
supervisor of a mental health professional in whom plaintiff had confided.” (Ante,
p. 68.) In questioning the opinion’s analysis of this point, the concurring and
dissenting opinion omits any discussion of the relevant portion of Sanders.
77
VII
For the reasons discussed above, we conclude that the Court of Appeal
erred in holding that plaintiff’s action should be permitted to go forward with
regard to (1) Loftus’s alleged statements at the October 2002 conference relating
to Jane Doe’s position in the military, (2) Loftus’s disclosure of plaintiff’s initials
at the March 2003 deposition, and (3) defendants’ alleged action in obtaining
information from confidential court records. At the same time, we also conclude
that the Court of Appeal correctly determined that plaintiff’s action for improper
intrusion into private matters could proceed based upon the claim that Loftus
obtained personal and sensitive information regarding plaintiff from her former
foster mother by misrepresenting herself as an associate of Corwin, a psychiatrist
with whom plaintiff had a close professional relationship.
Finally, although we have determined that defendants’ motion to strike the
complaint pursuant to the anti-SLAPP statute properly was denied as to one facet
of one of the numerous causes of action alleged in the complaint, it is apparent
when the determinations of the Court of Appeal and this court are viewed as a
whole that the overwhelming majority of plaintiff’s claims properly should have
been struck in the trial court under the anti-SLAPP statute. Under these
circumstances, and consistent with the fundamental purpose of the anti-SLAPP
statute to minimize the chilling of conduct undertaken in furtherance of the
constitutional right of free speech, we conclude that it is appropriate to award
defendants their costs on appeal.
78
The judgment rendered by the Court of Appeal is reversed in part and
affirmed in part, and the matter is remanded to that court for further proceedings
consistent with this opinion. Defendants are awarded their costs on appeal.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
79
CONCURRING AND DISSENTING OPINION BY MORENO, J.
I agree with the majority in every respect except one: I respectfully
disagree that Taus has an action against Loftus for the tort of intrusion into private
matters (hereafter sometimes the intrusion tort), based on Loftus’s alleged
misrepresentations to Taus’s foster mother, Margie Cantrell, in order to obtain
supposedly private information about Taus. As explained below, Taus had no
reasonable expectation that Cantrell would keep information she had observed
about Taus’s behavior private. Therefore, Taus should not be able to sue Loftus
for unlawful intrusion. As also explained below, to the extent Taus preferred that
Cantrell only speak to an investigator who held certain agreeable views, that
preference could not be called an expectation of privacy, and the enforcement of
that preference through tort law is antithetical to free academic inquiry.
I.
As discussed at greater length by the majority, plaintiff Taus became a case
study in the recovered memory of sexual abuse through the work of psychiatrist
Dr. David Corwin, who videotaped an interview in which Taus appears to recover
the memory of sexual abuse disclosed on an earlier videotaped confession.
Corwin described in considerable detail Taus’s case, albeit preserving her
anonymity by referring to her as Jane Doe, in an article in the May 1997 issue of
Child Maltreatment, entitled Videotaped Discovery of a Reportedly Unrecallable
Memory of Child Sexual Abuse: Comparison With a Childhood Interview
1
Videotaped 11 Years Before (2 Child Maltreatment 91 (hereafter the Child
Maltreatment article)). The article printed a transcript of interviews between
Corwin and Taus regarding the asserted recovered memory, and the article and
interview revealed the most private and intimate details of the sexual abuse Taus’s
mother allegedly inflicted on her and Taus’s reaction to that abuse. (See maj.
opn., ante, at pp. 6-7.) Other related articles in the same issue of Child
Maltreatment posed follow-up research questions related to the case study,
including “whether this experience has produced substantial changes in her life,
for better or for worse.” (See maj. opn., ante, at p. 9.)
During one of the interviews and in the same published article, Cantrell,
who is referred to in the article as “foster mother,” was also interviewed, and
disclosed her observations of some highly personal and intimate facts about Taus’s
life, including her psychological condition, her relationship to her parents, and her
adjustment to her new home. As Cantrell stated: “When Jane first approached our
family to come and live with us she had been in several group homes, foster
homes, her dad had become ill and she had to be placed somewhere. This was real
traumatic for Jane . . . . When she first moved in, she was tragically headstrong.
She had come to a point where you could not tell her anything. She didn’t have
rules or regulations and wouldn’t succumb to any. Jane had basically decided to
do everything all by herself, and no one was going to tell her what, why, or
anything anymore . . . and Jane . . . just want[ed] to give up, . . . she said, ‘I’m too
chicken to commit suicide, but I just want out, I just, I want out, I can’t take it
anymore, because I don’t know what happened to me when I was a little girl.”
Cantrell continued that she initiated Jane getting back in touch with her mother:
“Mother cried, and Jane cried, and Jane said ‘It felt so good to have her hug me. I
could tell that it was my mom.’ ” She then recounted how the relationship grew,
but then, after her father’s death, some things began to go wrong. “Jane
2
experienced a few things that really upset her, and for no reason the mother would
get really irate at her, and then just walk out of her life, and not call, and not come
back. And Jane felt like a failure again, like something she had done, so Jane
needed to know that there was nothing she had done.” Cantrell opined during the
interview that seeing the second video had been beneficial: “I think this has been a
beautiful closure.”
Elizabeth Loftus, a psychology professor long critical of the idea of
recovered memory, did research on this case and co-authored an article skeptical
of Corwin’s conclusions entitled Who Abused Jane Doe? The Hazards of the
Single Case History (May/June 2002) 26 Skeptical Inquirer 24, 37. Loftus was
able, through lawful means, to discover that Taus was the Jane Doe of the Child
Maltreatment article, in part because Corwin used Taus’s first name and the city
where she spent some of her childhood during a videotaped interview shown at a
number of professional meetings. Loftus was able to contact and interview Taus’s
mother and Cantrell.
It is the latter interview that is central to Taus’s intrusion cause of action.
As explained by the majority, Cantrell stated in a declaration that Loftus
misrepresented herself at the outset of the interview as working with Dr. Corwin
and being “his supervisor in connection with the study of [Taus].” She asked to
audiotape the interview, and as the questioning became increasingly hostile,
Cantrell asked if Loftus “really worked with Dr. Corwin or something to that
effect,” and eventually broke off the interview. Cantrell asked for the audiotape
but was refused and left “extremely upset.” Loftus in a declaration adamantly
denied making the above representations and denied audiotaping the interview.
Although Cantrell’s declaration does not make clear what she revealed to Loftus
about Taus, Loftus’s declaration states “that Jane Doe’s foster mother told me
during my interview of her that shortly after apparently recovering her memories
3
in 1995, Plaintiff started sleeping with boys and doing drugs. Plaintiff also snuck
out of the house at night. And she apparently left the care of her foster mother.”
Based on this information, but without revealing the specifics mentioned in her
declaration, Loftus stated at an academic conference that after the supposed
recovered memory episode, “Jane Doe engaged in destructive behavior that I
cannot reveal on advice of my attorney.”
II.
The anti-SLAPP statute, Code of Civil Procedure section 425.16, protects
the right to free speech and to engage in speech-related activities by making “a
summary-judgment-like procedure available at an early stage of litigation that
poses a potential chilling effect” on such activities. (Maj. opn., ante, at p. 37.) As
the majority correctly concludes, Taus’s action against Loftus falls within the
scope of the activity protected by the anti-SLAPP statute, in that the activity that is
the subject of the lawsuit was in furtherance of the defendant’s exercise of free
speech. (Maj. opn., ante, at p. 34.) In order to defeat defendants’ motion to strike,
Taus must therefore establish a probability of prevailing on her complaint (Code
Civ. Proc., § 425.16, subd. (b)(1)), i.e., she “ ‘must demonstrate that the complaint
is both legally sufficient and supported by a prima facie showing of facts to sustain
a favorable judgment if the evidence submitted by the plaintiff is credited.’ ”
(Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The majority
concludes from the facts stated above that Taus has made a prima facie showing
that Loftus tortiously intruded into her privacy. In order to evaluate this
conclusion, a precise understanding of the intrusion tort is necessary.
“[T]he action for intrusion 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
(Shulman).) As to the first element, we have stated: “To prove actionable
4
intrusion, the plaintiff must show the defendant penetrated some zone of physical
or sensory privacy surrounding, or obtained unwanted access to data about, the
plaintiff. The tort is proven only if the plaintiff had an objectively reasonable
expectation of seclusion or solitude in the place, conversation or data source.”
(Id. at p. 232, italics added.)
The determination of “an objectively reasonable expectation of seclusion”
is contextual. In Shulman, for example, the court, relying in part on cases related
to privacy accorded hospital rooms and similar places, held that an injured person
had the right to some degree of privacy in the interior of an ambulance. “ ‘[I]t is
neither the custom nor the habit of our society that any member of the public at
large or its media representatives may hitch a ride in an ambulance and ogle as
paramedics care for an injured stranger.’ ” (Shulman, supra, 18 Cal.4th at p. 233.)
Also entitled to a degree of privacy were “conversations conveying medical
information regarding [the patient] to the hospital base.” (Ibid.) We
acknowledged that a news cameraman “perhaps, did not intrude into that zone of
privacy merely by being present at a place where he could hear such conversations
with unaided ears. But by placing a microphone on [the paramedic’s] person,
amplifying and recording what she said and heard, defendants may have listened
in on conversations the parties could reasonably have expected to be private.”
(Ibid.)
In arriving at this conclusion, we recognized the qualitatively greater
intrusion represented by covert electronic recording: “ ‘While one who imparts
private information risks the betrayal of his confidence by the other party, a
substantial distinction has been recognized between the secondhand repetition of
the contents of a conversation and its simultaneous dissemination to an
unannounced second auditor, whether that auditor be a person or a mechanical
device. [Citation.] [¶] . . . [S]uch secret monitoring denies the speaker an
5
important aspect of privacy of communication — the right to control the nature
and extent of the firsthand dissemination of his statements.’ ” (Shulman, supra, 18
Cal.4th at pp. 234-235.)
In
Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907
(Sanders), a television reporter obtained employment as a “telepsychic” and
covertly videotaped conversations with several coworkers by means of a small
video camera located in her hat. (Id., at p. 920.) One of those coworkers sued for
intrusion. We rejected the notion that because the plaintiff’s workplace was not
absolutely secluded, the plaintiff had no expectation of privacy. “ ‘[P]rivacy, for
purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There
are degrees and nuances to societal recognition of our expectations of privacy: the
fact that the privacy one expects in a given setting is not complete or absolute does
not render the expectation unreasonable as a matter of law. . . . ‘Like “privacy,”
the concept of “seclusion” is relative. The mere fact that a person can be seen by
someone does not automatically mean that he or she can legally be forced to be
subject to being seen by everyone.’ ” (Id., at p. 916.)
Cases that involve intrusion into a data source are rarer than cases involving
intrusion into places or conversations and entail obtaining through improper means
information protected by well-settled expectations of privacy and confidentiality.
The majority cites three cases. In Zimmermann v. Wilson (3d Cir. 1936) 81 F.2d
847, 849, the court held that that an Internal Revenue agent’s search of the
plaintiffs’ bank record through a subpoena duces tecum constituted an
unreasonable search, concluding that such information should be considered a
“property right” of the plaintiffs that could not be invaded without sufficient
justification. This case is one of the ones on which illustration 4 of comment b to
section 652B of the Restatement Second of Torts is based: “A is seeking evidence
for use in a civil action he is bringing against B. He goes to the bank in which B
6
has his personal account, exhibits a forged court order, and demands to be allowed
to examine the bank’s records of the account. The bank submits to the order and
permits him to do so. A has invaded B’s privacy.” (Rest.2d Torts, § 652B, com.
b, pp. 378-379.)
In Swarthout v. Mutual Service Life Ins. Co. (Minn.Ct.App. 2001) 632
N.W.2d 741, 745, the court allowed an action for intrusion when an insurance
company added the names of additional health care providers to a medical release
form signed by the insured without the latter’s permission, thereby obtaining
medical information it was not authorized to acquire. In Corcoran v.
Southwestern Bell Tel. Co. (Mo.Ct.App. 1978) 572 S.W.2d 212, 215-216, the
defendant diverted and opened the plaintiffs’ mail, in clear violation of the law, in
order to obtain the address of the plaintiffs’ son, defendant’s ex-husband. It
should be emphasized that although the information defendant discovered in this
case pertained to plaintiffs’ son, it was plaintiffs who sued for invasion of privacy,
not their son.
From the above case law, we can derive the following principles: First, it is
insufficient to allege or prove that a defendant employed offensive means to
breach what a plaintiff would like to be kept private or secluded in order to
maintain an action for intrusion; a plaintiff must also establish that the defendant
breached a zone that the plaintiff reasonably expects to remain private or
secluded. The two inquiries are related but distinct. In Shulman, for example, the
court could not have concluded that bringing the hidden recorder into an
ambulance breached a reasonable expectation of privacy without first concluding
that the interior of an ambulance and conversations between a paramedic and an
injured person in need of the paramedic’s services was reasonably entitled to some
degree of privacy or seclusion. In Sanders, we concluded that hidden cameras
brought into the workplace may constitute a breach of privacy (Sanders, supra, 20
7
Cal.4th at p. 923), but that the first prong of the intrusion tort is not met “when the
plaintiff has merely been observed, or even photographed or recorded, in a public
place.” (Id. at p. 914.)
Second, a reasonable expectation of privacy or seclusion is one derived not
only from law, but also from well-defined “custom [or] . . . habit of . . . society.”
(Shulman, supra, 18 Cal.4th at p. 233.)
Third, in order to maintain an intrusion action vis-à-vis a data source, as
opposed to seclusion in a place or in communications, a plaintiff must reasonably
expect, based on law, custom, or habit, that the information source will keep the
information in relative secrecy but for the improper intrusion, and that the
information itself will remain relatively private. In the cases and Restatement
illustration discussed above, the plaintiffs attempted to keep the information
private by entrusting it to institutions that have been assigned the role, through
law, agreement, or well developed custom, of being guardians of confidential
information, such as banks and health care facilities. The breach of that
confidentiality through deception or other improper means may support an action
for invasion of privacy.
With these principles in mind, we turn to the present case.
III.
At the outset, we must be clear that the question is not whether Cantrell had
a reasonable expectation that her privacy would be breached by an investigator
who got her to reveal private information under false pretenses. The question
rather is whether Taus has a reasonable expectation that Cantrell’s observations of
Taus’s behavior while acting as her foster mother would remain private. The
majority cites no case for the proposition that person A has a reasonable, legally
protectable, expectation that person B will not reveal to person C observations
person B has about person A’s life. As we stated in Shulman, “ ‘[O]ne who
8
imparts private information risks the betrayal of his confidence by the other
party . . . .’ ” (Shulman, supra, 18 Cal.4th at pp. 234-235.) An expectation of
privacy is even less reasonable when what is at issue is not private information
that has been communicated, in which some implication of confidentiality may
sometimes arise, but rather disclosure of observations of a person’s behavior. As
one court observed, the intrusion tort “was not created to protect against . . . the
garnering of information from third parties . . . . Gathering information about
appellant from third parties, ‘even if pursued using subterfuge and fraud, cannot
constitute . . . . an intrusion upon [appellant’s] solitude or seclusion. The Court
has found no authority, nor has [appellant] cited any, which suggests the
contrary.’ ” (Wolf v. Regardie (D.C. 1989) 553 A.2d 1213, 1218; see also
Mackerron v. Madura (Me. 1982) 445 A.2d 680, 682 [police officer’s attempt to
obtain letter from attorney’s client may implicate the privacy interests of the
client, but not the attorney].)
The majority cites Sheets v. Salt Lake County (10th Cir. 1995) 45 F.3d 1383
(Sheets), in support of its proposed expansion of the intrusion tort. In that case,
the police requested and the plaintiff gave a copy of his deceased wife’s diary in
order to assist the investigation of her murder. Copies of the diary or diary
excerpts eventually wound up in the hands of several people who wrote books
about the murder, one of whom quoted from the diary directly. In upholding a
verdict in the plaintiff’s favor pursuant to 42 United States Code section 1983, the
court concluded that the husband had handed the diary over to the police with an
understanding that it would be kept confidential, as evidenced both by assurances
of confidentiality given by a police detective and by the fact that the diary was
“traditionally for the recording of private thoughts” and had been “given to the
police for the specific purpose of aiding their investigation.” (Sheets, supra, at
p. 1388.)
9
Sheets does not assist the majority’s position. The plaintiff in that case had
a reasonable expectation that the diary would be kept private because of the
confidential, legally enforceable relationship between himself and the police. In
order to fit within Sheets, Cantrell would have had to have been under an
obligation of confidentiality not to reveal sensitive information she knew about
Taus at the time she met with Loftus, which the latter breached through deception.
But no such obligation has been alleged. Moreover, Cantrell’s observations and
memory are not analogous to a diary or other traditional repository of private
information.
Lacking precedent, the majority employs hypotheticals. The majority
invites us to “consider an instance in which an unscrupulous or overly ambitious
investigative reporter or private investigator, interested in discovering whether a
public official (or any other person) has a particular medical condition or is taking
a specific medication, makes a telephone call to a spouse, adult child, or close
friend of the official, pretends to be an emergency room physician or paramedic,
and asks the relative or friend to disclose the medical information ostensibly to
assist in the treatment of the official. (Maj. opn., ante, at pp. 72-73.) The majority
would find actionable intrusion in such circumstances.
The
above
hypothetical leaves unanswered a number of questions. How
close a friend does one have to be in order for there to be a reasonable expectation
of privacy in the information that the friend possesses? Does the reasonable
expectation apply to all relatives, even estranged ones or distant ones?
Presumably it would not apply to the casual acquaintance, even if improper means
were used. Or is it always for the jury to decide how close an acquaintance must
be in order for there to be a reasonable expectation? Does the reasonable
expectation apply to information the plaintiff has made no effort to keep secret?
In cases implicating the First Amendment, we should “strive for as much
10
predictability as possible within our system of case-by-case adjudication, lest we
unwittingly chill First Amendment freedoms.” (Shulman, supra, 18 Cal.4th at p.
221.) The majority’s hypothetical, like the opinion in general, raises more
questions than it answers.
Nonetheless, the majority may be correct that, at least under some
circumstances, a person would be able to sue in the above hypothetical situation.
It may be the case, for example, that a politician has a right to some degree of
privacy as to the contents of her medicine cabinet, and has a reasonable
expectation that her spouse will keep those contents confidential. A journalist
posing as a medical doctor in a confidential relationship with the politician in
order to trick the spouse into revealing such highly personal medical information
may be liable for an intrusion. It is arguably true that the politician in the
hypothetical has a reasonable expectation that the spouse would keep the
information private but for the journalist’s deception.
But the majority does not contend Taus had a reasonable expectation that
Cantrell would keep what she had observed about Taus private but for Loftus’s
misrepresentation. Rather, in explaining the core rationale for its holding, the
majority states that because Loftus allegedly engaged in misrepresentations to
obtain information about Taus, “we cannot say, as a matter of law, that such
questionable and unorthodox action constitutes conduct that plaintiff reasonably
should have foreseen or anticipated. Instead, we believe a jury could find that
plaintiff reasonably expected that an investigator would not seek and obtain access
to such personal information about her from a relative or friend by falsely posing
as an associate or supervisor of a mental health professional in whom plaintiff had
confided.” (Maj. opn., ante, at p. 68, original italics omitted, new italics added.)
This point is underscored by the majority’s discussion of whether Taus’s
alleged separation and estrangement from Cantrell affected the former’s
11
reasonable expectation of privacy. The majority concludes that it does not:
“[E]ven if a jury were to find that plaintiff’s separation from Cantrell diminished
plaintiff’s reasonable expectation that Cantrell would not voluntarily disclose
private information about her to others, it would not follow that a jury could not
find that Loftus’s conduct nonetheless violated plaintiff’s reasonable expectation
of privacy. As explained above, even if plaintiff could not have had a reasonable
expectation that Cantrell would not voluntarily disclose such information, a jury
could find that plaintiff reasonably could expect that an unrelated investigator ―
like Loftus ― would not engage in the unorthodox and improperly intrusive
conduct of persuading Cantrell to reveal personal information about her by
intentionally misrepresenting herself . . . .” (Maj. opn., ante, at p. 69, fn. 19, italics
added.)
In so concluding, the majority confuses the first and second prongs of the
intrusion tort. Again, a plaintiff must prove both intrusion into a place,
conversation, or data source in which he or she has a reasonable expectation of
privacy and that the intrusion occurred by use of means highly offensive to a
reasonable person. (Shulman, supra, 18 Cal.4th at p. 231.) The majority solves its
reasonable expectation of seclusion problem by concluding that Taus would not
reasonably expect that someone would use highly offensive means, such as posing
as an associate of a trusted mental health professional, to acquire the information.
But that is not enough — highly offensive means are unreasonable by definition,
and a plaintiff presumably will never reasonably expect that such means would be
employed. As discussed above, in addition to showing the use of highly offensive
means to obtain the information, a plaintiff must also show a reasonable
expectation that the information source would have kept the information private
but for the employment of those means. No court has ever come close to adopting
the majority’s contrary position. Just as a person has no right to sue the operator
12
of a hidden camera who films him in public (Sanders, supra, 20 Cal.4th at p. 914),
so a person has no right to sue an investigator who obtains information in which
the person had no reasonable expectation of privacy to begin with, even when the
investigator employs offensive means to do so.
The majority analogizes the present situation to wiretapping or similar such
intrusions. As it states: “Just as the plaintiff in Sanders v. American Broadcasting
Companies, supra, 20 Cal.4th 907, retained a reasonable expectation of privacy
that was violated when his conversations with coemployees in a nonpublic
workplace were covertly videotaped by an undercover journalist, and just as a
person retains a reasonable expectation of privacy that is violated when a third
party defendant, by wiretapping a phone conversation or surreptitiously recording
an in-person conversation, gains access to private information that the person has
chosen to share with another person, a person similarly retains a reasonable
expectation of privacy that may be violated when a third party defendant, by
engaging in improper and unforeseen conduct, gains access to private information
about the person from the person’s relative or friend.” (Maj. opn., ante, at p. 64.)
Yet although courts have held that wiretapping or surreptitious recording of
conversations violates the rights of those wiretapped or recorded, because such
intrusions violate well-defined expectations of privacy (see Shulman, supra, 18
Cal.4th at p. 233; Pacific Telephone & Telegraph Co. v. Superior Court (1970) 2
Cal.3d 161, 168, fn. 8), neither Taus nor the majority cite a case extending these
holdings to allow those mentioned during such conversations a right to sue for
invasion of privacy. Even assuming that a court would recognize such a right
under limited circumstances, nothing in case law suggests that courts would allow
a plaintiff who is not a party to the conversation to dispense with the showing that
he or she had a reasonable expectation that the information revealed about him or
her would remain private.
13
Moreover, to the extent those mentioned in a wiretap or a surreptitiously
recorded conversation may have a right of action for intrusion without any further
showing, that right would be essentially derivative of, or a foreseeable
consequence of, the clear invasion of the privacy of those wiretapped or recorded.
But misrepresentation, while it may constitute fraud or some other tortious action,
does not necessarily amount to an intrusion into the privacy of those who are the
objects of the misrepresentation. Indeed, we recognized this very distinction
between covert recording and misrepresentation in Sanders, in which we quoted
with approval the court’s language in Dietemann v. Time, Inc. (9th Cir. 1971) 449
F.2d 245 (Dietemann), wherein reporters for a news magazine deceitfully gained
access to a quack doctor’s home office and secretly photographed and recorded his
examination of one of them: “ ‘One who invites another to his home or office
takes a risk that the visitor may not be what he seems, and that the visitor may
repeat all he hears and observes when he leaves. But he does not and should not
be required to take the risk that what is heard and seen will be transmitted by
photograph or recording, or in our modern world, in full living color and hi-fi to
the public at large . . . .’ ” (Sanders, supra, 20 Cal.4th at p. 916, quoting
Dietemann, supra, at p. 249.)
Thus,
Sanders and Dietemann stand for the proposition that when person A
has no expectation of privacy in a conversation or data source, the fact that person
B gains access to such conversation or data source through false pretences does
not by itself make B liable for intrusion. Rather, what is decisive in those cases is
the unremarkable conclusion that secretly filming people in a relatively secluded
workplace or office, and thereby potentially exposing them to the public at large,
is greater intrusion upon their privacy than covertly observing them, and that the
former may be an actionable invasion of privacy even when the latter is not.
Contrary to the majority’s implication, (see maj. opn., ante, at p. 76, fn. 23), we
14
never remotely suggested in Sanders that if a person simply imparts information to
someone she has invited into her home who is “not what he seems,” and who does
not secretly record the conversation, then a relative of the person could sue even if
the relative had no reasonable expectation the information would be kept private.
The question then is, did Taus have a reasonable expectation that Cantrell
would have kept the information revealed to Loftus about her private, but for
Loftus’s deception? In answering that question we must consider not simply
whether, in the abstract, a child would have a reasonable expectation that a parent
would keep a certain type of information private (see maj. opn., ante, at p. 76, fn.
23), but rather whether, under the particular circumstances of this case, Taus had a
reasonable expectation that Cantrell’s information would be kept private. I would
conclude she did not, for several reasons. First, the information Loftus obtained
was directly pertinent to the Jane Doe case study that had become central to the
recovered memory controversy. Indeed, as noted, the same issue of Child
Maltreatment in which Corwin’s article appeared posed as a follow up research
question, whether the recovered memory incident had “produced a substantial
change in [Taus’s] life, for better or for worse.” As the majority acknowledge:
“Because plaintiff had agreed to permit Corwin to use her case study at
educational seminars and in an article published in a scientific journal — albeit
without identifying plaintiff by name — it may well be that plaintiff could not
have had an objectively reasonable expectation that an investigator or academic
researcher, like Loftus, would not discover her identity and pose probing questions
to Cantrell relating to such personal matters.” (Maj. opn., ante, at pp. 67-68.)
Moreover, although Taus may have hoped Cantrell would not speak to
people other than Corwin about her observations about Taus’s behavior, she fails
to demonstrate that she had an objectively reasonable expectation that Cantrell
would refrain from doing so. Cantrell had no legal obligation to so refrain. Nor is
15
there any well-established custom or habit that would dictate that a foster mother
should not talk about a former foster child’s behavior to others, for example,
friends, relatives, and neighbors. Moreover, at issue is not private conversations
between Taus and Cantrell in which some expectation of confidentiality may be
inferred, but Taus’s behavior. Nor, given the fact that Taus’s case was at the
center of an academic controversy, did Taus have a reasonable expectation that
Cantrell would refuse to talk to a bona fide academic researcher making
reasonable inquiries about the effect of the recovered memory. Nor does the fact
that Taus broke off the foster parent-child relationship weigh in favor of an
expectation that Cantrell would keep Taus’s behavior private.
Furthermore, we do not know from the complaint or from plaintiff’s
declarations in opposition to the anti-SLAPP motion whether and to what extent
Cantrell had already disclosed this information to others. And because the
information in question, Taus’s behavior, was not confined to the seclusion of
Cantrell’s home, we have no way of knowing whether it was already generally
known in the community. Also, Cantrell’s revelations to Loftus do not go much
further than what Cantrell had already revealed in the Child Maltreatment article,
when she told Corwin that Taus was a rebellious and troubled teenager who was
“tragically headstrong” and who “didn’t have rules or regulations and wouldn’t
succumb to any,” and who spoke of suicide and giving up. How could Taus have
a legally enforceable expectation that Cantrell would keep private information if it
was already generally known? And even if Cantrell kept quiet, how could Taus
have had a reasonable expectation that the information wouldn’t be revealed by
another source?
Perhaps it can be argued that spreading some local gossip is different from
talking to an academic researcher who would disseminate the information to a
wider academic audience, and that Taus expected that Cantrell would make that
16
distinction and act accordingly. But there are at least two problems with that
argument. First, as discussed, there is nothing in law or custom that would dictate
that Cantrell would refuse to talk to a legitimate academic investigator about Taus,
given the fact that Taus’s personal life was at the center of an academic
controversy. Second, Loftus was in fact very discreet about the information she
obtained. She did not reveal Taus’s identity, and did not disclose the fact that
Cantrell said she had engaged in promiscuous behavior and drug use until after the
litigation had commenced. Loftus mentioned at an academic conference only that
“Jane Doe” had engaged in unspecified “destructive behavior” after the supposed
recovered memory incident. Unlike the fake employee with the hidden camera in
Sanders, Loftus was not masking a hidden purpose of filming and ultimately
publicizing private information. Although she is alleged to have misrepresented
her association with Corwin, she did not misrepresent her status as an academic
researcher bound by protocols of confidentiality.
It may be that Taus would have preferred that Cantrell not reveal the further
intimate details of her life to Loftus because, unlike Corwin, and unlike the friends
or neighbors that Cantrell might have spoken to, Taus perceived Loftus as
threatening because she was contesting claims that Taus had been sexually abused.
In fact, it is fairly apparent that the impetus for this litigation is not Loftus’s
investigative techniques but her perceived adversarial stance toward Corwin and,
derivatively, toward Taus. But by any ordinary sense, the desire to deny an
investigator information based on the investigator’s viewpoint cannot be called an
expectation of privacy or seclusion, and the enforcement of Taus’s preference
through tort law is contrary to free academic inquiry and the First Amendment.
Of course, Cantrell herself had an interest in not being deceived. If she
revealed information she would not have otherwise disclosed but for the
misrepresentation, and if such disclosure caused some tangible injury, she might
17
have an action for intentional infliction of emotional distress, fraud, or some other
tort. But Cantrell is not the plaintiff here, and this issue is beyond the scope of the
case. Nor do we consider whether Loftus would be liable if she had lied to Taus to
get the latter to reveal information. The question is whether Taus had a reasonable
expectation that Cantrell would keep private certain personal information about
her. The answer based on the present record is that she did not. Her tort for
intrusion into private matters therefore should fail, even if Loftus engaged in the
misrepresentations alleged by Cantrell to obtain that information.
IV.
The majority’s desire to protect society from the kind of misrepresentations
alleged in the present case is understandable, and it may be argued that a person
could avoid intrusion suits of this kind by simply telling the truth. But of course
Loftus vigorously denies having made any misrepresentations. The real question
is whether we should subject academics and other investigators to right to privacy
suits based on allegations that the means of obtaining information from a third
party was unscrupulous, when the information obtained is itself not something an
individual can reasonably expect to be kept private.
To insist that the reasonable expectation of privacy requirement be
rigorously adhered to is not simply a matter of formal doctrinal correctness, but
serves to enforce an important constitutional and policy principle. Permitting suits
that do not meet this requirement will likely chill vigorous journalistic
investigation because of the inherently problematic nature of the relationship
between journalists and their news sources. As an amicus curiae brief filed on
behalf of the various news organizations states: “The media . . . will be left
vulnerable to intrusion claims arising from a news source’s belated attempt to
distance himself from the information he disclosed by asserting that the media
engaged in some sort of misrepresentation to obtain it. Sources who voluntarily
18
provide information to the media often take issue after the fact with some aspect of
what the media ultimately reported. Indeed, when the subject of an unflattering or
critical news report complains to a source of information for that report who
allegedly revealed private or injurious information to a reporter, it creates a motive
for the source to belatedly contend that the reporter obtained the information by
misrepresentation,” or other improper means. The same dynamic may occur in
academic investigations. While the media organizations may not be correct that
journalists should enjoy a blanket immunity from all such suits based on alleged
misrepresentations to third party news sources, at the very least, no suit should be
allowed when the plaintiff has not demonstrated a reasonable expectation that the
information in question would be kept private but for the misrepresentations.
Given the important interests at stake, and the fact that the significant
expansion of the intrusion tort found in the majority opinion can correspondingly
diminish academic and journalistic freedom, we should undertake such expansion
only with the greatest of care. Here, Taus has demonstrated no reasonable
expectation that the information revealed to Cantrell would be kept private but for
the misrepresentation. Taus’s cause of action for intrusion should therefore be
stricken pursuant to Code of Civil Procedure section 425.16, which was
specifically intended to weed out such unmeritorious suits impinging on free
speech and inquiry.
I therefore respectfully dissent.
MORENO, J.
I CONCUR:
BAXTER, J.
19
See last page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Taus v. Loftus
__________________________________________________________________________________
Unpublished Opinion XXX NP opn. filed 4/1/05
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S133805
Date Filed: February 26, 2007
__________________________________________________________________________________
Court: Superior
County: Solano
Judge: James F. Moelk
__________________________________________________________________________________
Attorneys for Appellant:
Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox; Christopher Patti; Selman-Breitman, Jeane
Struck, Gregg A. Thornton; Rutan & Tucker and Duke F. Wahlquist for Defendants and Appellants
Elizabeth Loftus, Melvin Guyer, Carol Tavris, the Committee for the Scientific Investigation of Claims of
the Paranormal (CSICOP), Skeptical Inquirer and Center for Inquiry West.
John P. Hollinrake and Demosthenes Lorandos for Defendant and Appellant Shaprio Investigations.
R. Chris Barden; Bishop, Barry, Howe, Haney & Ryder and Mark C. Raskoff for National Committee of
Scientists for Academic Liberty as Amicus Curiae on behalf of Defendants and Appellants.
Thomas A. Pavlinic and Kristine M. Burk for The False Memory Syndrome Foundation as Amicus Curiae
on behalf of Defendants and Appellants.
Levine Sullivan Koch & Schulz, James E. Grossberg, Seth D. Berlin, Jeanette Melendez Bead; Harold W.
Fuson, Jr.; Michael Kahane, Barbara Tarlow; Cohn & Marks, Kevin M. Goldberg; Charles J. Glasser, Jr.;
Peter Scheer; Thomas W. Newton, James W. Ewert; Anthony M. Bongiorno; David M. Giles; Barbara W.
Wall; Jonathan Donnellan, Kristina E. Findikyan; Karlene W. Goller; Stephen J. Burns; King & Ballow,
Tonda Rush; Susan E. Weiner, James Lichtman, Craig Bloom; George Freeman, David E. McCraw; Wiley
Rein & Fielding, Kathleen A. Kirby; Lucy A. Dalgish, Gregg P. Leslie, Baker & Hostetler, Bruce W.
Sanford , Robert D. Lystad, Bruce D. Brown; and Robin Bierstedt for The Copley Press, Inc. American
Media, Inc., The American Society of Newspaper Editors, Bloomberg News, California First Amendment
Coalition, California Newspaper Publishers Association, CBS Broadcasting, Inc., CBS Radio, Inc., The
E.W. Scripps Company, Freedom Communications, Inc. dba The Orange County Register, Gannett Co.,
Inc., The Hearst Corporation, Los Angeles Times Communications LLC, The McClatchy Company,
National Newspaper Association, NBC Universal, Inc., The New York Times Company, Radio-Television
News Directors Association, The Reporters Committee for Freedom of the Press, Society of Professional
Journalists and Time Inc. as Amici Curiae on behalf of Defendants and Appellants.
1
Page 2- S133805 – counsel continued
Attorneys for Respondent:
McCloskey, Hubbard, Ebert & Moore, Hubbard & Ebert and Julian J. Hubbard for Plaintiff and
Respondent.
A. Steven Frankel for The Leadership Council on Child Abuse & Interpersonal Violence as Amicus Curiae
on behalf of Plaintiff and Respondent.
2
Counsel who argued in Supreme Court (not intended for publication with opinion):
Thomas R. Burke
David Wright Tremaine
One Embarcadero Center, Suite 600
San Francisco, CA 94111-3611
(415) 276-6500
Julian J. Hubbard
Hubbard & Ebert
600 Allerton Street, Suite 202
Redwood City, CA 94063
(650) 369-9353
3
Opinion Information
| Date: | Docket Number: |
| Mon, 02/26/2007 | S133805 |
Parties
| 1 | Taus, Nicole (Plaintiff and Respondent) Represented by Julian J. Hubbard Hubbard & Ebert, LLP 600 Allerton Street, Suite 202 Redwood City, CA |
| 2 | Loftus, Elizabeth (Defendant and Appellant) Represented by Thomas Rohlfs Burke Davis Wright Tremaine, LLP 505 Montgomery Street, Suite 800 San Francisco, CA |
| 3 | Loftus, Elizabeth (Defendant and Appellant) Represented by Christopher M. Patti University of California, Office of General Counsel 1111 Franklin Street, 8th Floor Oakland, CA |
| 4 | Loftus, Elizabeth (Defendant and Appellant) Represented by Gregg A. Thornton Selman Breitman, LLP 33 New Montgomery Street, 6th Floor San Francisco, CA |
| 5 | Loftus, Elizabeth (Defendant and Appellant) Represented by Duke F. Wahlquist Rutan & Tucker 611 Anton Boulevard, Suite 1400 Costa Mesa, CA |
| 6 | Guyer, Melvin (Defendant and Appellant) Represented by Thomas Rohlfs Burke Davis Wright Tremaine, LLP 505 Montgomery Street, Suite 800 San Francisco, CA |
| 7 | Tavris, Carol (Defendant and Appellant) Represented by Thomas Rohlfs Burke Davis Wright Tremaine, LLP 505 Montgomery Street, Suite 800 San Francisco, CA |
| 8 | Skeptical Inquirer (Defendant and Appellant) Represented by Thomas Rohlfs Burke Davis Wright Tremaine, LLP 505 Montgomery Street, Suite 800 San Francisco, CA |
| 9 | Center For Inquiry West (Defendant and Appellant) Represented by Thomas Rohlfs Burke Davis Wright Tremaine, LLP 505 Montgomery Street, Suite 800 San Francisco, CA |
| 10 | National Committee Of Scientists For Academic Liberty (Amicus curiae) Represented by R. Chris Barden Attorney at Law 1093 E. Duffer Lane North Salt Lake, UT |
| 11 | National Committee Of Scientists For Academic Liberty (Amicus curiae) Represented by Mark C. Raskoff Bishop Barry Howe et al. 2000 Powell Street, Suite 1425 Emeryville, CA |
| 12 | Copley Press (Amicus curiae) Represented by James E. Grossberg Levine Sullivan & Koch, LLP 1041 Skyline Drive Laguna Beach, CA |
| 13 | False Memory Syndrome Foundation (Amicus curiae) Represented by Thomas Pavlinic Attorney at Law 116 Defense Highway, Suite 502 Annapolis, MD |
| 14 | False Memory Syndrome Foundation (Amicus curiae) Represented by Kristine Mary Burk Criminal Defense Associates 20700 Ventura Boulevard, Suite 301 Woodland Hills, CA |
| 15 | Committee For Scientific Investigation Of Paranormal Claims (Defendant and Appellant) |
| 16 | Shapiro Investigations (Defendant and Appellant) Represented by Demosthene Anistasios Lorandos Attorney at Law 214 N. Fourth Avenue Ann Arbor, MI |
| 17 | Shapiro Investigations (Defendant and Appellant) Represented by John Paul Hollinrake Attorney at Law P.O. Box 253 Lincoln, CA |
| 18 | Leadership Council On Child Abuse & Interpersonal Violence (Amicus curiae) Represented by A. Steven Frankel Attorney at Law 3527 Mt. Diablo Boulevard, Suite 269 Lafayette, CA |
| Disposition | |
| Feb 26 2007 | Opinion: Affirmed in part/reversed in part |
| Dockets | |
| May 10 2005 | Petition for review filed Respondent (Loftus) by counsel. |
| May 11 2005 | Record requested |
| May 23 2005 | 2nd record request |
| Jun 2 2005 | Received Court of Appeal record file jacket/briefs/accordian file |
| Jun 22 2005 | Petition for review granted (civil case) Votes: Geroge, C.J., Kennard, Werdegar, Chin, Brown, and Moreno, JJ. |
| Jul 6 2005 | Request for extension of time filed to file an opening brief appellants Elizabeth Loftus et al asking to August 22, 2005 |
| Jul 6 2005 | Certification of interested entities or persons filed counsel for appellants Elizabeth Lftus, et al. |
| Jul 7 2005 | Extension of time granted to serve and file the Opening Brief to and including October 5, 2005. No futher extension is contemplated. |
| Jul 11 2005 | Certification of interested entities or persons filed Attorney Hubbard for Respondent ( Taus). |
| Oct 5 2005 | Opening brief on the merits filed By counsel for Appellants {Elizabeth Loftus et al.,}. |
| Oct 5 2005 | Request for judicial notice filed (granted case) By counsel for appellants (2 volumes) |
| Nov 4 2005 | Request for extension of time filed By counsel for respondent requesting a 30-day extension to and including December 5, 2005 to file respondent's answer brief on the merits. |
| Nov 7 2005 | Extension of time granted To December 5, 2005 to file Respondent's Answer Brief on the Merits. |
| Dec 7 2005 | Received: Untimely Answer Brief on the Merits Nicole Taus, Respondent Julian H. Hubbard, Counsel |
| Dec 8 2005 | Application for relief from default filed Nicole Taus, Respondent Julian J. Hubbard, Counsel. |
| Dec 9 2005 | Answer brief on the merits filed With permission. |
| Dec 14 2005 | Request for extension of time filed for appellants to file the reply brief on the merits, to 1-18-06. |
| Dec 16 2005 | Extension of time granted to 01/18/06 for appellants to file the reply brief on the merits. |
| Jan 18 2006 | Request for judicial notice filed (granted case) Elizabeth Loftus et al, defendants and appellants Thomas Burke, counsel Supplement to motion filed 10-05-05. |
| Jan 18 2006 | Reply brief filed (case fully briefed) Elizabeth Loftus et al, defendants and appellants Thomas Burke, counsel |
| Feb 16 2006 | Received application to file Amicus Curiae Brief by False Memory Syndrome Foundation in support of appellants, Elizabeth Loftus, et al., (application & brief under seperate cover) Kristine M. Burk, counsel |
| Feb 16 2006 | Application to appear as counsel pro hac vice filed on behalf of Thomas A. Pavlinic |
| Feb 17 2006 | Received application to file Amicus Curiae Brief National Committee of Scientists for Academic Liberty, applicant R. Chris Barden, Mark Raskoff; counsel application and brief under separate covers. Pro hac vice application pending. |
| Feb 17 2006 | Application to appear as counsel pro hac vice filed R. Charles Barden, counsel for A/C applicant National Committee of Scientists |
| Feb 17 2006 | Received application to file Amicus Curiae Brief The Copley Press, Inc., American Media, Inc., The American Society of Newspaper Editors, Bloomberg News, California First Amendment Colaition, California Newspaper Publishers Assn. CBS Broadcasting Inc., CBS Radio, Inc., The E.W. Scripps Company, Freedom Communications, Inc., Gannett Co. Inc., The Hearst Corp., Los Angeles Times Communications LLC, The McClatchy Co., National Newspaper Assn., NBC Universal, Inc., The New York Times CO., Radio-Television News Directors Assn., The Reporters Committee for Freedom of the Press, Society of Professional Journalists and Time Inc., in support of Appellants. by James E. Grossberg, Counsel |
| Mar 2 2006 | Permission to file amicus curiae brief granted by The Copley Press Inc. et al in support of defendants and appellants. Answers may be filed w/in 20 days. |
| Mar 2 2006 | Amicus curiae brief filed The Copley Press, et al James Grossberg, counsel |
| Mar 2 2006 | Permission to file amicus curiae brief granted by the False Memory Syndrome Foundation in support of defendants and appellants. Answers may be filed w/in 20 days. |
| Mar 2 2006 | Application to appear as counsel pro hac vice granted by Thomas A. Pavlinic on behalf of A/C False Memory Syndrome Foundation. |
| Mar 2 2006 | Amicus curiae brief filed False Memory Syndrome Foundation Thomas A Pavlinic, Kristine M. Burk, counsel |
| Mar 2 2006 | Permission to file amicus curiae brief granted by the National Committee of Scientists for Academic Liberty in support of defendants and appellants. Answers may be filed w/in 20 days. |
| Mar 2 2006 | Application to appear as counsel pro hac vice granted By R. Chris Barden on behalf of A/C National Committee of Scientists for Academic Liberty. |
| Mar 2 2006 | Amicus curiae brief filed the National Committee of Scientists for Acacemic Liberty R. Chris Barden, Mark C. Raskoff, counsel |
| Mar 23 2006 | Request for extension of time filed for respondent to file a consolidated answer to the A/C briefs. to 4/20 |
| Mar 24 2006 | Received application to file Amicus Curiae Brief Leadership Council on Child Abuse & Interpersonal Violence, in support of respondent A. Stephen Frankel, counsel Application for late filing submitted concurrently (brief is 35 days late) |
| Mar 28 2006 | Opposition filed to the A/C application of Leadership Council on Child Abuse Elizabeth Loftus, defendant and appellant Thomas Burke, counsel |
| Mar 29 2006 | Extension of time granted to 4-20-06 for resp to file a consolidated answer to the amicus briefs previously filed. |
| Apr 11 2006 | Permission to file amicus curiae brief granted by the Leadership Council on Child Abuse & Interpersonal Violence in support of respondent. Answers may be filed w/in 20 days. |
| Apr 11 2006 | Amicus curiae brief filed Leadership Council on Child Abuse & Interpersonal Violence, in support of respondent A. Steven Frankel, counsel |
| Apr 21 2006 | Response to amicus curiae brief filed consolidated answer of respondent, Taus to amicus curiae brief of Coakley Press, etc. Presented with separate application to file untimely answer. by counsel, Julian J. Hubbard. Filed with permission. |
| May 1 2006 | Response to amicus curiae brief filed by: appellant, Elizabeth Loftus responding to AC brief of The Leadership Council on Child Abuse & Interpersonal Violence |
| Aug 23 2006 | Supplemental briefing ordered Each party is invited to file supplemental briefing on the following issue: Does the qualified common-interest privilege established by Civil Code section 47, subdivision (c) apply to plaintiff's claim for defamation based upon defendant Loftus' alleged statement at an October 2002 professional mental health conference, and, if so, what effect does that statutory provision have on the potential merits of that claim? The parties may file simultaneous letter briefs on this issue in the San Francisco office of this court on or before Wednesday, September 6, 2006, and may file simultaneous letter reply briefs in the San Francisco office of this court on or before Wednesday, September 13, 2006. Corrigan, J., was absent and did not participate. |
| Sep 5 2006 | Change of contact information filed for: Thomas R. Burke, counsel for appellants. |
| Sep 6 2006 | Request for extension of time filed for resp to file the letter brief, to 9-8-06. And for simultaneous replies to 9-15-06. Nicole Taus, respondent Julian Hubbard, counsel |
| Sep 6 2006 | Letter brief filed Elizabeth Loftus, et al., appellants Thomas Burke, counsel |
| Sep 6 2006 | Request for judicial notice filed (granted case) Elizabeth Loftus, et al., appellants Thomas Burke, counsel |
| Sep 7 2006 | Extension of time granted Plaintiff's request for a two-day extension of time to file a supplemental letter brief, filed on 9-6-06, is granted. Plaintiff's supplemental letter brief shall be filed in the San Francisco office of this court on or before 9-8-06. Each party may file a supplemental letter reply brief in the San Francisco office of this court on or before 9-15-06. |
| Sep 8 2006 | Letter brief filed Nicole Taus, respondent Julian Hubbard, counsel |
| Sep 8 2006 | Request for extension of time filed for filing of parties' letter reply briefs, to 9-22-06. Elizabeth Loftus, et al., appellants Thomas Burke, counsel |
| Sep 12 2006 | Extension of time granted At defendants' request, the time for each party to file a supplemental letter reply brief in the San Francisco office of this court is extended to September 22, 2006. |
| Sep 22 2006 | Letter brief filed Elizabeth Loftus, et al., appellants Thomas Burke, counsel |
| Sep 22 2006 | Letter brief filed Nicole Taus, respondent Julian Hubbard, counsel |
| Nov 1 2006 | Request for judicial notice granted Appellants' motion for judicial notice filed on October 5, 2005, supplemental motion for judicial notice filed on January 18, 2006, and second supplemental motion for judicial notice filed on September 6, 2006, are granted. |
| Nov 7 2006 | Case ordered on calendar Tuesday, December 5, 2006, at 9:00 a.m., in Los Angeles |
| Dec 5 2006 | Cause argued and submitted |
| Feb 23 2007 | Notice of forthcoming opinion posted |
| Feb 26 2007 | Opinion filed: Affirmed in part, reversed in part and the matter is remanded to that court for further proceedings consistent with this opinion. Defendants are awarded their cost on appeal. Majority Opinion by George, C. J., ----- Joined by Kennard, Werdegar, Chin and Corrigan, JJ. Concurring and Dissenting Opinion by Moreno, J., ------ Joined by Baxter, J. |
| Mar 29 2007 | Remittitur issued (civil case) |
| Briefs | |
| Oct 5 2005 | Opening brief on the merits filed |
| Dec 9 2005 | Answer brief on the merits filed |
| Jan 18 2006 | Reply brief filed (case fully briefed) |
| Mar 2 2006 | Amicus curiae brief filed |
| Mar 2 2006 | Amicus curiae brief filed |
| Mar 2 2006 | Amicus curiae brief filed |
| Apr 11 2006 | Amicus curiae brief filed |
| Apr 21 2006 | Response to amicus curiae brief filed |
| May 1 2006 | Response to amicus curiae brief filed |
