Thompkins v. Sovinsky CA2/2 ( 2020 )

Filed 12/22/20 Thompkins v. Sovinsky CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ERIN THOMPKINS, B301514
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC682539)
v.
CECILIA MORAN SOVINSKY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County. Barbara M. Scheper, Judge. Affirmed.
Cecilia Moran Sovinsky, in pro. per., for Defendant and
Appellant.
Kerendian & Associates, Inc., Shab David Kerendian and
Edrin Shamtob for Plaintiff and Respondent.
____________________
Defendant and appellant Cecilia Moran Sovinsky appeals
from a judgment in favor of plaintiff and respondent Erin
Thompkins entered after a bench trial. Defendant contends that
the judgment was “prejudiced, discriminative, unfair, unmerited,
unjustifiable, unreasonable, bigoted and unscrupulous.”
The judgment is supported by substantial evidence, and
defendant offers no cogent basis to reverse the judgment.
Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Factual Background
On or about April 1, 2017, plaintiff, a traveling nurse, and
defendant entered into a lease agreement, whereby plaintiff
leased a room in defendant’s house on a month-to-month basis.
On May 16, 2017, defendant informed plaintiff that she would be
installing security cameras in various areas of the house.
Cameras were then installed in the house’s kitchen, foyer, living
room, second story, and outside areas. But, according to plaintiff,
defendant never told her that the cameras “had audio” and that
she would be able to listen to plaintiff’s conversations in the
house.
In August 2017, defendant told plaintiff that she had
listened to recorded conversations that plaintiff had had with
other tenants in defendant’s house. Plaintiff intended for those
conversations to be private. During the time she lived in
defendant’s house, plaintiff also had had roughly 20 to 30 private
conversations with third parties regarding events that would be
regulated by the Health Insurance Portability and Accountability
Act (HIPAA). Had she known that the security cameras had the
capability of recording those confidential communications, she
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never would have had them in the areas where the cameras were
installed.
As a result of defendant secretly recording and listening to
plaintiff’s private communications, plaintiff “became increasingly
stressed out” and “uncomfortable.” In addition, plaintiff was
concerned that the recordings could “cause an issue for her job
given the HIPAA issues.” By the end of August 2017, plaintiff
moved out of defendant’s house.
Procedural Background
On November 7, 2017, plaintiff filed a complaint against
defendant, alleging claims for violation of Penal Code section 632,
invasion of privacy (intrusion), and intentional infliction of
emotional distress. Defendant filed an answer.
The case proceeded to a bench trial. Following witness
testimony, the submission of the parties’ closing trial briefs, and
closing argument, the trial court found in favor of plaintiff on all
three causes of action pled in the complaint and entered
judgment in her favor in the amount of $200,000.
Defendant’s timely appeal ensued.
DISCUSSION
I. Standard of review
“‘Where findings of fact are challenged on a civil appeal, we
are bound by the “elementary, but often overlooked principle of
law, that . . . the power of an appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted,” to support the findings
below. [Citation.]’ [Citation.] [¶] ‘“In applying this standard of
review, we ‘view the evidence in the light most favorable to the
prevailing party, giving it the benefit of every reasonable
inference and resolving all conflicts in its favor . . . .’ [Citation.]”
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[Citation.] “‘Substantial evidence’ is evidence of ponderable legal
significance, evidence that is reasonable, credible and of solid
value.” [Citation.] We do not reweigh evidence or reassess the
credibility of witnesses. [Citation.] We are “not a second trier of
fact.” [Citation.]’ [Citation.]” (Reynaud v. Technicolor Creative
Servs. United States (2020) 46 Cal.App.5th 1007, 1015.)
II. Analysis
Applying this standard of review, we readily conclude that
there is no basis to reverse the judgment. As the trial court
noted, plaintiff met her burden in proving her claims against
defendant.
Plaintiff brought three claims against defendant:
(1) Violation of Penal Code section 632; (2) Invasion of privacy;
and (3) Intentional infliction of emotional distress. Penal Code
section 632, subdivision (a), provides: “A person who,
intentionally and without the consent of all parties to a
confidential communication, uses an electronic amplifying or
recording device to eavesdrop upon or record the confidential
communication, whether the communication is carried on among
the parties in the presence of one another or by means of a
telegraph, telephone, or other device” shall be subject to certain
penalties. “Penal Code [section] 637.2 authorizes a private civil
right of action for any violation of [Penal Code section] 632.”
(Weiner v. ARS Nat’l Servs. (S.D.Cal. 2012) 887 F.Supp.2d 1029,
1032.) The three elements a plaintiff must prove are (1) an
electronic recording of, or eavesdropping on, (2) a confidential
communication, and (3) all parties did not consent. (Ibid.)
The elements of a claim for invasion of privacy are (1) the
plaintiff had a reasonable expectation of privacy; (2) the
defendant intentionally intruded; (3) the intrusion would be
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highly offensive to a reasonable person; (4) the plaintiff was
harmed; and (5) the defendant’s conduct was a substantial factor
in causing the harm. (CACI No. 1800.)
“The elements of a cause of action for intentional infliction
of emotional distress are (i) outrageous conduct by defendant,
(ii) an intention by defendant to cause, or reckless disregard of
the probability of causing, emotional distress, (iii) severe
emotional distress, and (iv) an actual and proximate causal link
between the tortious conduct and the emotional distress.
[Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d
278, 300.) “‘Conduct to be outrageous must be so extreme as to
exceed all bounds of that usually tolerated in a civilized
community.’ [Citation.] Generally, conduct will be found to be
actionable where the ‘recitation of the facts to an average
member of the community would arouse his resentment against
the actor, and lead him to exclaim, “Outrageous!”’ [Citation.]”
(KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023,
1028.)
As set forth above, plaintiff proved all elements of these
three causes of action. She had a reasonable expectation of
privacy in her conversations with other tenants and third parties.
Despite that expectation, defendant recorded and listened to her
private conversations without the parties’ consent. And plaintiff
was harmed by defendant’s outrageous conduct.
Urging us to reverse, defendant attacks the evidence,
characterizing plaintiff’s testimony as “clearly false and
ambiguous.” But, pursuant to the well-established legal
principles enunciated above, we do not reweigh the evidence or
reassess the credibility of witnesses. (Reynaud v. Technicolor
Creative Servs. United States, supra, 46 Cal.App.5th at p. 1015.)
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The trial court believed plaintiff’s testimony, and there is no
basis for us to second guess the trial court.
Defendant further contends that there is no evidence to
support the trial court’s determination that she violated Penal
Code section 632. After all, plaintiff knew that there were
cameras installed in the common areas of the house and she had
no reasonable expectation of privacy in those common areas. We
need not reach this issue. Even if the trial court had erred in
finding in favor of plaintiff on this claim, that alleged error would
not compel reversal of the judgment because on appeal defendant
does not challenge the trial court’s findings in favor of plaintiff on
her claims for invasion of privacy and intentional infliction of
emotional distress, and the trial court’s damage award was not
segregated into amounts awarded for each cause of action.
Because the trial court issued a comprehensive verdict on
damages, and its findings on at least two of plaintiff’s claims
stand, so too does the entire judgment.
Moreover, defendant asserts that the trial court awarded
plaintiff excessive damages. There are at least two problems
with defendant’s argument. First, it is well-settled that “[w]e
must uphold an award of damages whenever possible citation]
and ‘can interfere on the ground that the judgment is excessive
only on the ground that the verdict is so large that, at first blush,
it shocks the conscience and suggests passion, prejudice or
corruption.’” (Westphal v. Wal-Mart Stores, Inc. (1998) 68
Cal.App.4th 1071, 1078.) In light of plaintiff’s evidence, we
cannot agree that the damages awarded by the trial court were
excessive.
Second, defendant’s argument rests upon her mistaken
assumption that the damages were awarded just for a violation of
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Penal Code section 637.2. But that is not what the judgment
indicates. Rather, as set forth above, the trial court found that
plaintiff proved all three causes of action and awarded $200,000
in total damages. Defendant offers no basis for us to find that
that award is excessive.
Finally, defendant makes some sort of objection to an
accusation that she either willfully failed to appear at trial and/or
suppressed evidence. Because defendant offers no evidence or
citation to the appellate record to support her claim that the trial
court made improper inferences against her pursuant to Evidence
Code section 413, her claim fails. (Guthrey v. State of California
(1998) 63 Cal.App.4th 1108, 1115 [appellate court is not required
to make an independent, unassisted search of the appellate
record]; In re S.C. (2006) 138 Cal.App.4th 396, 406–407 [appellate
court can deem a contention unsupported by a record citation to
be without foundation and thus forfeited].)
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DISPOSITION
The judgment is affirmed. Plaintiff is entitled to costs on
appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
_______________________, J.
ASHMANN-GERST
We concur:
__________________________, P. J.
LUI
__________________________, J.
HOFFSTADT
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