VCA Animal etc. v. Yu CA4/2 ( 2021 )

Filed 5/6/21 VCA Animal etc. v. Yu CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
VCA ANIMAL HOSPITALS, INC. et al.,
Cross-complainants and E072926
Respondents,
(Super.Ct.No. CIVDS1827920)
v.
OPINION
DANIEL YU et al.,
Cross-defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Keith D. Davis,
Judge. Affirmed.
Law Office of Bryan W. Pease and Brian W. Pease for Cross-defendants and
Appellants.
Haight Brown & Bonesteel, Michael C. Parme, Arezoo Jamshidi, and Kathleen
Moriarity for Cross-complainants and Respondents.
1
Daniel Yu and Susan Zhong sued California Veterinary Specialists and
veterinarians Dr. Jennifer Hoose, Dr. Timothy Concannon, and Dr. Yenlie Zingale after
their Maltese, Fluffy, died in the veterinarians’ care.
Yu and Zhong alleged Fluffy died because Dr. Hoose mistakenly believed the
plaintiffs had asked that the dog not be resuscitated if she stopped breathing. In
investigating what had happened, Yu and Zhong secretly recorded a conversation with
Dr. Hoose. According to California Veterinary Specialists and Dr. Hoose, they then used
the recordings to demand Dr. Hoose’s termination and later quoted the recordings in their
complaint. Dr. Hoose and California Veterinary Specialists filed counterclaims against
plaintiffs, alleging the recording invaded the veterinarian’s privacy and violated the
prohibition of Penal Code section 632 on recording confidential conversations. They seek
statutory damages for the improper recording under Penal Code section 632.7, actual
damages from emotional distress, and injunctive relief.
Yu and Zhong countered with a motion under the statute prohibiting strategic
lawsuits against public participation (anti-SLAPP statute), Code of Civil Procedure
section 425.16, asserting the lawsuit targeted their exercise of the right to petition the
courts for redress because they made the recording in preparation for litigation.
The trial court denied their motion on the ground that recording a phone
conversation is not protected conduct. We affirm because California Veterinary
Specialists and Dr. Hoose have presented sufficient evidence to establish their claims
under Penal Code section 632 and for invasion of privacy have minimal merit.
2
I
FACTS
A. The Alleged Veterinarian Malpractice
Daniel Yu and Susan Zhong took their 11-year-old Maltese, Fluffy, to
1
VCA California Veterinary Specialists (CVS) for care when she started having seizures.
CVS recommended leaving Fluffy overnight so their neurologist, Dr. Zingale,
could examine her in the morning. Fluffy had another seizure and was having significant
breathing problems the next day when Dr. Zingale examined her. An x-ray revealed she
had a collapsed trachea. They treated Fluffy by sedating her and using an oxygen mask to
prevent her from suffocating. When technicians took the oxygen mask off, she began
suffocating again and needed to be resuscitated with CPR and a small dose of
epinephrine.
The plaintiffs consulted with a veterinary surgeon about a procedure to place a
stent in Fluffy’s airway. The surgeon told them the procedure was noninvasive, fairly
simple, and the surgery had a high success rate of 85 to 95 percent. They were told the
problem with her trachea was her only life threatening condition, and they could manage
her seizures with medication. Yu and Zhong decided to have CVS perform the procedure
and paid a $6,000 deposit.
1 The complaint identifies the corporate defendant as California Veterinary
Specialists. The answer identifies the corporation as VCA Animal Hospitals, Inc. doing
business as VCA California Veterinary Specialists. For simplicity, we refer to them as
CVS in this opinion.
3
Early the next morning, Yu received a phone message from CVS asking him to
call the hospital. When he called, they told him Fluffy had died overnight. When they got
to the office, Dr. Zingale told them he wasn’t present when Fluffy had died. They asked
for Fluffy’s records, where they found an email from Dr. Hoose to their regular
veterinarian, in which Dr. Hoose reported, “Fluffy did go into cardiac arrest this evening.
CPR was not started according to the owner’s wishes. I am sorry to report the loss of this
pet.” The plaintiffs said the news came as a shock, because they had never given such
instructions. CVS initially assured them they did attempt to resuscitate Fluffy and advised
them to call and talk to Dr. Hoose that evening.
When they spoke to Dr. Hoose, she told them they didn’t attempt CPR on Fluffy
because Dr. Concannon had told her she had a do not resuscitate order. Due to the
inconsistency of the stories, Yu and Zhong spoke to others at the hospital over the next
few days. The hospital manager told them a technician named Jessica was watching
Fluffy when she saw her struggling to breathe, and she took Fluffy out of the oxygen box
to initiate CPR. The manager said Dr. Hoose stopped Jessica from performing CPR
because she believed, wrongly, that her owners had requested she not be resuscitated. If a
pet has a do not resuscitate order, the hospital’s practice is to place a tag on their crate
and a purple label on their charts; Fluffy had neither.
Dr. Concannon later told plaintiffs he thought Dr. Hoose had overheard a
conversation between Dr. Zingale and another doctor and had inferred wrongly that
Fluffy was not to be resuscitated. They asked Dr. Zingale about that conversation, and
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she said it concerned whether to get an authorization not to resuscitate Fluffy in case
something went wrong during surgery. However, CVS’s regional medical director later
told them that Dr. Hoose claimed Dr. Zingale told her directly that Fluffy was subject to
an order not to resuscitate her. Yu and Zhong didn’t believe Dr. Hoose’s claim about Dr.
Zingale and were suspicious because of the shifting stories they had heard from their
veterinarians.
B. The Lawsuit
Yu and Zhong sued CVS and three of their veterinarians for negligence,
conversion, and trespass to chattel. They also sued Dr. Hoose, Dr. Zingale, and Dr.
Concannon for intentional infliction of emotional distress. They allege they suffered
extensive economic loss, emotional distress, and pain and suffering after losing Fluffy.
Dr. Hoose and CVS filed a cross-complaint alleging causes of action for violation
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of Penal Code section 632 and invasion of privacy. They alleged plaintiffs called their
office asking to speak to Dr. Hoose about Fluffy’s death. Dr. Hoose took the call at her
personal desk, out of earshot of CVS’s clients, to maintain privacy.
They allege Yu and Zhong recorded the phone call without informing Dr. Hoose
or obtaining her consent. They say they learned of the recording a week later, when Yu
and Zhong met with CVS’s medical director and hospital manager. Yu and Zhong told
them they had recorded their call with Dr. Hoose and had the recording transcribed. They
say Yu and Zhong demanded that CVS terminate Dr. Hoose under threat that they would
2 Dr. Concannon and Dr. Zingale were not parties to the cross-complaint and
aren’t parties to this appeal.
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otherwise sue. Dr. Hoose says she was shocked to learn of the recording and has since
suffered from anxiety and fear of being recorded by clients.
CVS and Dr. Hoose sued Yu and Zhong for violating Penal Code section 632 by
recording the call and for common law invasion of privacy. They sought statutory
damages under Penal Code section 637.2, actual damages, attorney fees and costs, and
injunctive relief.
C. The Anti-SLAPP Motion
Yu and Zhong moved to strike the cross-complaint as a suit against public
participation. (Code Civ. Proc., § 425.16.) They argued their act of recording the
conversation with Dr. Hoose is protected because it was part of their preparation for
litigation. They also argued their recording did not violate Penal Code section 632
because Dr. Hoose had no reasonable expectation of privacy. Finally, they argued CVS
and Dr. Hoose couldn’t prevail on their claim for invasion of privacy because nothing
was disclosed publicly.
At a hearing on the anti-SLAPP motion, the trial judge concluded surreptitious
recording of a private conversation was not protected conduct under the anti-SLAPP
statute.
Yu and Zhong timely appealed the order denying their motion to strike.
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II
ANALYSIS
Yu and Zhong argue the trial judge erred by denying their motion to strike the
allegations against them because recording the phone conversation with Dr. Hoose is
protected conduct in anticipation of litigation, which respondents targeted to stop them
from seeking redress in court and because they don’t have minimal merit.
A. Legal Background
A strategic lawsuit against public participation (SLAPP suit) is “a meritless
lawsuit ‘filed primarily to chill the defendant’s exercise of First Amendment rights.’”
(Paul v. Friedman (2002) 95 Cal.App.4th 853, 861, quoting Wilcox v. Superior Court
(1994) 27 Cal.App.4th 809, 815, fn. 2.) The California Legislature passed the anti-
SLAPP statute, Code of Civil Procedure section 425.16, to cut SLAPP suits short,
allowing a defendant to move to dismiss “certain unmeritorious claims that are brought to
thwart constitutionally protected speech or petitioning activity.” (Robinzine v. Vicory
(2006) 143 Cal.App.4th 1416, 1420-1421.)
The anti-SLAPP statute 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 Constitution or the 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
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claim.” (Code Civ. Proc, § 425.16, subd. (b)(1), unlabeled statutory citations refer to this
code.)
Faced with a special motion to strike, a trial court conducts a two-step analysis.
“At the first step, the moving defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them. When relief is sought
based on allegations of both protected and unprotected activity, the unprotected activity is
disregarded at this stage. If the court determines that relief is sought based on allegations
arising from activity protected by the statute, the second step is reached. There, the
burden shifts to the plaintiff to demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. The court, without resolving
evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the
trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is
stricken. Allegations of protected activity supporting the stricken claim are eliminated
from the complaint, unless they also support a distinct claim on which the plaintiff has
shown a probability of prevailing.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
Even if the defendant makes the required showing that the cause of action arises
from protected speech or petitioning activity, the motion should be denied and the cause
of action allowed to proceed if the plaintiff (here the counter-plaintiff) demonstrates
“there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1);
see also Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6 Cal.App.5th 602, 615.)
“Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that
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arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP,
subject to be stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
As a result, we may affirm denial of an anti-SLAPP motion based only on the fact that
the claimant has established their claims have at least minimal merit. (Ibid.)
Under section 425.16, subdivision (b)(2), “the plaintiff must demonstrate that the
complaint is both legally sufficient and supported by a sufficient prima facie showing of
facts to sustain a favorable judgment if the evidence submitted by the plaintiff is
credited.” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89.) “In this sense, the anti-
SLAPP statute operates like a ‘motion for summary judgment in “reverse.”’” (Ralphs
Grocery Co. v. Victory Consultants, Inc.(2017) 17 Cal.App.5th 245, 261.)
We review de novo the trial court’s order denying a motion to strike under section
425.16. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) We consider the pleadings and
supporting and opposing affidavits, and “accept as true the evidence favorable to the
plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
B. Probability of Success on the Penal Code Section 632 Claim
“A violation of section 632 is committed by anyone who ‘intentionally and
without the consent of all parties to a confidential communication, by means of any
electronic amplifying or recording device, eavesdrops upon or records the confidential
communication, whether the communication is carried on among the parties in the
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presence of one another or by means of a telegraph, telephone, or other device, except a
radio.’” (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 161
(Lieberman).) Penal Code section 637.2 provides a private cause of action for anyone
injured by a violation of Penal Code section 632. An injured party may recover the
greater of $5,000 in statutory damages for each violation or treble actual damages and
may, where appropriate, also obtain injunctive relief. (Pen. Code, § 637.2, subds. (a) &
(b).)
Yu and Zhong argue CVS and Dr. Hoose can’t establish they violated Penal Code
section 632 because it wasn’t reasonable to expect the conversation they recorded was
private. “Penal Code section 632 protects only confidential communications, and a
communication is not confidential when the parties may reasonably expect other persons
to overhear it. [Citation.] A communication is confidential where a party to the
conversation has an objectively reasonable expectation that the conversation is not being
overheard or recorded.” (Lieberman, supra, 110 Cal.App.4th at p. 168.) It is sufficient to
sustain a claim under Penal Code section 632 if the complaining party alone had a
reasonable expectation of privacy. (Pen. Code, § 632, subd. (c) [defining “confidential
communication” as including “any communication carried on in circumstances as may
reasonably indicate that any party to the communication desires it to be confined to the
parties thereto,” italics added]; see also Flanagan v. Flanagan (2002) 27 Cal.4th 766,
768, 774-775.)
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Yu and Zhong point to their own expectations, not Dr. Hoose’s, to support their
argument that it wasn’t reasonable to expect privacy. According to their declarations, the
rooms in the veterinarians’ office space are all connected and it’s easy to overhear
everything. Though they acknowledge Dr. Hoose says she took the call at her personal
desk, they emphasize she never told them her location, and they conclude they
“reasonably believed the call was being taken where they had seen other calls being
taken, in areas where other staff can easily overhear the conversation.”
That’s not the right question. What CVS and Dr. Hoose allege is that Dr. Hoose
took the call at her personal desk and that she did so to maintain the confidentiality of the
conversation. It’s enough to prevail on a claim for Dr. Hoose herself to have had a
reasonable expectation that the call would be private. Her declaration is sufficient to
establish a prima facie case that she had such an expectation. She offers to testify that she
“intentionally took the call at my personal desk out of earshot of [their] clientele to
maintain the privacy of the call” because she knew she “would be discussing the sensitive
and private subject of a patient’s care and passing with the patient’s owners.”
It’s a factual question whether her expectation was objectively reasonable. “The
concept of privacy is relative. [Citation.] Whether a person’s expectation of privacy is
reasonable may depend on the identity of the person who has been able to observe or hear
the subject interaction. [Citations.] The presence of others does not necessarily make an
expectation of privacy objectively unreasonable but presents a question of fact for the
jury to resolve.” (Lieberman, supra, 110 Cal.App.4th at p. 169.) Under this precedent,
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CVS and Dr. Hoose have presented sufficient allegations and support to establish that she
had a reasonable expectation of privacy when she took the call even if there were other
people present in the office as Yu and Zhong suspect.
We therefore conclude CVS and Dr. Hoose have satisfied their burden under Code
of Civil Procedure section 425.16 to present a prima facie case that Yu and Zhong
violated Penal Code section 632 by recording their telephone call. We don’t, of course,
resolve the ultimate question, which may turn on the credibility of the witnesses,
particularly Dr. Hoose herself. (Seelig v. Infinity Broadcasting Corp. (2002) 97
Cal.App.4th 798, 809.) A jury must decide whether under the circumstances Dr. Hoose
3
could have reasonably expected that the communications were private. (Lieberman,
supra, 110 Cal.App.4th at p. 168.)
C. Probability of Success on the Invasion of Privacy Claim
The same holds for respondents’ invasion of privacy claim. “A privacy violation
based on the common law tort of intrusion has two elements. First, the defendant must
3 We emphasize our conclusion does not mean that Yu and Zhong cannot sue CVS
and Dr. Hoose for their malpractice or present evidence of Dr. Hoose’s statements. Penal
Code section 632 prohibits recording confidential communications, but “does not prohibit
the disclosure of information gathered in violation of its terms.” (Lieberman, supra, 110
Cal.App.4th at p. 167; see also Frio v. Superior Court (1988) 203 Cal.App.3d 1480, 1485
[“testimony relating [a party’s] present recollection of the contents of telephone
conversations with others, even if refreshed by notes prepared in part by reference to tape
recordings made in apparent violation of section 632, is not evidence obtained as a result
of the illegality”]; People v. Crow (1994) 28 Cal.App.4th 440, 452 [“Evidence of
confidential conversations obtained by eavesdropping or recording in violation of section
632 is generally inadmissible. . . but can be used to impeach inconsistent testimony by
those seeking to exclude the evidence”].) The facts are the facts, notwithstanding
appellant’s possible misconduct while uncovering them.
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intentionally intrude into a place, conversation, or matter as to which the plaintiff has a
reasonable expectation of privacy. Second, the intrusion must occur in a manner highly
offensive to a reasonable person.” (Hernandez v. Hillsides, Inc. (2009) 47 Cal.4th 272,
286.)
“To satisfy the first element, ‘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.’
[Citation.] The expectation of privacy need not be complete or absolute privacy. Rather,
‘[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.’ [Citation.] ‘[D]etermining
offensiveness requires consideration of all the circumstances of the intrusion, including
its degree and setting and the intruder’s “motives and objectives.”’” (Huntingdon Life
Sciences, Inc. v. Stope Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th
1228, 1259-1260.)
Yu and Zhong argue respondents failed to allege sufficient facts to make out an
invasion of privacy claim because they disclosed nothing publicly and didn’t intrude into
Dr. Hoose’s private affairs. We disagree with this characterization of what’s alleged. Yu
and Zhong recorded a telephone conversation with Dr. Hoose, transcribed the recording,
and then took it to Dr. Hoose’s employer to demand her termination. The recording itself
is the intrusion, and the disclosure occurred when Yu and Zhong took a transcript of the
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conversation to Dr. Hoose’s employer. At the end of the day, a jury may find the
conversation was not private, but if it was these facts are sufficient to establish intrusion.
Yu and Zhong argue Dr. Hoose didn’t have a reasonable expectation of privacy
because other people could have heard the phone call. However, our Supreme Court has
more than once held, in the context of an invasion of privacy claim, that a person’s
reasonable expectation of privacy is a question of fact that is not necessarily defeated by
evidence that someone else could have overheard the conversation. (Hernandez v.
Hillsides, Inc., supra, 47 Cal.4th at p. 288.) Indeed, the Court has held that even “a
person who lacks a reasonable expectation of complete privacy in a conversation, because
it could be seen and overheard by coworkers (but not the general public), may
nevertheless have a claim for invasion of privacy by intrusion based on a television
reporter’s covert videotaping of that conversation.” (Sanders v. American Broadcasting
Companies (1999) 20 Cal.4th 907, 923, italics added.) We believe the principle holds for
covert audio recordings made by a client as well, at least where, as here, the person who
was taped represents she took the call in a personal space and away from other clients.
Yu and Zhong argue in their reply brief that even if their conduct invaded Dr.
Hoose’s privacy, it didn’t do so in a manner highly offensive to a reasonable person. By
failing to raise the issue until their reply brief without justification, they have forfeited the
issue. (Doe v. California Dept. of Justice (2009) 173 Cal.App.4th 1095, 1115 [“‘“[T]he
rule is that points raised in the reply brief for the first time will not be considered, unless
good reason is shown for failure to present them before”’”].) In any event, we conclude it
14
is a factual question whether the covertly recorded phone conversation was highly
offensive to a reasonable person. (See Shulman v. Group W Productions, Inc. (1998) 18
Cal.4th 200, 236 [“determining offensiveness requires consideration of all the
circumstances of the intrusion, including its degree and setting and the intruder’s
‘motives and objectives’”].) We therefore conclude there is at least minimal merit to the
claim that Yu and Zhong violated and invaded Dr. Hoose’s privacy by recording their
4
telephone call.
III
DISPOSITION
We affirm the order denying Yu and Zhong’s special motion to strike.
Respondents are entitled to their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J.
We concur:
CODRINGTON
Acting P. J.
FIELDS
J.
4 We note that while both causes of action may go forward, as a corporation, CVS
itself may pursue an action for the violation of Penal Code section 632 but not for
common law invasion of privacy. (Coulter v. Bank of America (1994) 28 Cal.App.4th
923, 930.)
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