Greenberg v. Broadcom Corp. CA4/3

Filed 9/22/15 Greenberg v. Broadcom Corp. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
DANIEL GREENBERG,
Plaintiff and Appellant, G050557
v. (Super. Ct. No. 30-2013-00630222)
BROADCOM CORPORATION, OPINION
Defendant and Respondent.
Appeal from a judgment of the Superior Court of Orange County, Gregory
H. Lewis, Judge. Affirmed in part and reversed in part.
Santiago & Jones, David G. Jones and Daniel S. Greenberg, in pro. per., for
Plaintiff and Appellant.
Paul Hastings, James P. Carter, Brigham M. Cheney and Paul W. Cane, Jr.,
for Defendant and Respondent.
* * *
The trial court granted defendant and cross-complainant Broadcom
Corporation’s motion for summary judgment on plaintiff and cross-defendant Daniel
Greenberg’s action for discriminatory practices, harassment, retaliation, and wrongful
termination. The ruling was based on after-acquired evidence of plaintiff’s misconduct in
recording coworkers’ conversations without their knowledge; it did not address the other
grounds raised in the motion. The court also granted defendant’s summary judgment on
its cross-complaint against plaintiff for statutory penalties due to violations of the
Invasion of Privacy Act (Pen. Code, § 630 et seq.; all further undesignated statutory
references are to this code).
Plaintiff contends summary judgment on his complaint should not have
been granted because the after-acquired evidence doctrine does not constitute a complete
defense to his claims under California’s Fair Employment and Housing Act (FEHA; Gov.
Code, §12900 et seq.). Despite plaintiff’s failure to address this issue in his opposition to
defendant’s summary judgment motion, we shall not deem the issue waived and will
address it on the merits. Having done so in light of the California Supreme Court’s
recent decision in Salas v. Sierra Chemical Co. (2014) 59 Cal. 4th 407, 429-430 (Salas),
holding that after-acquired evidence of wrongdoing is not a complete defense to claims
under the FEHA, we reverse the judgment as it relates to the complaint.
On defendant’s cross-complaint, plaintiff argues the court erroneously
granted summary judgment because a triable issue of material fact exists in whether the
recorded conversations are confidential. We disagree and affirm the judgment with
respect to the cross-complaint.
FACTS AND PROCEDURAL BACKGROUND
The following facts are undisputed: Defendant hired plaintiff as a Business
Systems Analyst in 2010. In February 2012, plaintiff sent an e-mail, after which he
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began complaining about “unethical and unprofessional business practices” and “being
bullied and discriminated against because [he] sent that email.”
In May, plaintiff was reassigned to another supervisor. Two days later, he
disclosed he had epilepsy.
After a training session held in September, the outside contractor hired to
conduct it reported to defendant that plaintiff had questioned the ethics of the executive
vice president of human resources. Plaintiff denied making that statement and accused
defendant’s human resources department of being unethical. Defendant thereafter
terminated plaintiff.
Plaintiff sued defendant. The first amended (operative) complaint alleged
causes of action for violations of FEHA (discrimination, and failures to accommodate
disability, engage in the interactive process, and take all reasonable steps to prevent
discrimination and retaliation), unlawful harassment, retaliation, wrongful termination in
violation of public policy, intentional infliction of emotional distress, and negligent
misrepresentation.
During discovery, plaintiff revealed he had made 29 electronic recordings
of conversations from June 6 to September 19 between himself and different coworkers,
both individually and in a group setting. Defendant also recorded the September training
session at which the outside contractor, plaintiff, and eight coworkers were present. Each
recording was made on defendant’s property and “concerned his work . . . either in the
form of: (1) a discussion of his job duties and responsibility as [defendant’s] employee
and Business Systems Analyst; or (2) a discussion with [defendant’s] Human Resources
personnel regarding treatment by and interaction with his supervisors and/or coworkers.”
Plaintiff claimed he made the recordings in order “to allow him to remember what
happened during conversations at [his] work place” because his epilepsy caused seizures
which affected his memory.
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Defendant filed a cross-complaint against plaintiff, alleging entitlement to
statutory damages under section 637.2 due to plaintiff’s conduct in recording the
conversations. Defendant thereafter moved for summary judgment or alternative
summary adjudication of issues on the complaint and summary judgment on its cross-
complaint.
As to the complaint, defendant argued, in part, it was entitled to judgment
based on its affirmative defense of after-acquired evidence of plaintiff’s misconduct
during his employment for which defendant would have terminated him without regard to
any other reason. Plaintiff, although represented by counsel at the time, did not address
this defense in opposition to the motion.
Defendant’s motion for summary judgment on its cross-complaint
contended plaintiff had violated section 632, entitling defendant to damages under 637.2.
Plaintiff opposed this motion by contending triable issues of fact existed regarding
“whether the conversation participants had an objective expectation of privacy.”
In granting defendant’s motions, the court agreed defendant was entitled to
judgment on the complaint based on the after-acquired evidence doctrine. As to the
cross-complaint, the court determined defendant had carried its burden by showing
plaintiff intentionally, and without consent, recorded conversations that the parties
intended to be confined to the participants. In turn, plaintiff’s evidence was too
speculative to raise a triable issue of material fact. The court awarded $5,000 for each of
the 29 conversations recorded, totaling $145,000.
The California Supreme Court issued its opinion in Salas, supra, 59 Cal. 4th
407 ten days after the court rendered its decision. Judgment was entered two months
later. Plaintiff’s counsel remained counsel of record until at least three weeks after
judgment was entered, when his motion to be relieved as counsel was set to be heard.
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DISCUSSION
1. Standard of Review
A motion for summary judgment “shall be granted if all the papers
submitted show that there is no triable issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
“‘“We review the trial court’s decision de novo, considering all the evidence set forth in
the moving and opposing papers except that to which objections were made and
sustained.”’ [Citation.] We liberally construe the evidence in support of the party
opposing summary judgment and resolve doubts concerning the evidence in favor of that
party.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal. 4th 1028, 1037.)
“A defendant moving for summary judgment bears the initial burden to
show the plaintiff’s action has no merit. [Citation.] The defendant can meet that burden
by either showing the plaintiff cannot establish one or more elements of his or her cause
of action or there is a complete defense to the claim. [Citations.] To meet this burden,
the defendant must present evidence sufficient to show he or she is entitled to judgment
as a matter of law.” (Carlsen v. Koivumaki (2014) 227 Cal. App. 4th 879, 889 (Carlsen);
see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, fn. omitted. (Aguilar).)
“Once the defendant meets that burden, the burden shifts to the plaintiff to
present evidence establishing a triable issue exists on one or more material facts.
[Citations.] ‘In deciding whether a plaintiff has met h[is] burden of proof, we consider
both direct and circumstantial evidence, and all reasonable inferences to be drawn from
both kinds of evidence, giving full consideration to the negative and affirmative
inferences to be drawn from all of the evidence, including that which has been produced
by the defendant.’ [Citation.] ‘An issue of fact can only be created by a conflict of
evidence. It is not created by “speculation, conjecture, imagination or guess work.”
[Citation.] Further, an issue of fact is not raised by “cryptic, broadly phrased, and
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conclusory assertions” [citation], or mere possibilities [citation]. “Thus, while the court
in determining a motion for summary judgment does not ‘try’ the case, the court is bound
to consider the competency of the evidence presented.” [Citation.]’ [Citation.]
Responsive evidence that ‘gives rise to no more than mere speculation’ is not sufficient to
establish a triable issue of material fact.” (Carlsen, supra, 227 Cal.App.4th at pp. 889-
890.)
“There is a triable issue of material fact if, and only if, the evidence
[produced] would allow a reasonable trier of fact to find the underlying fact in favor of
the party opposing the motion in accordance with the applicable standard of proof.”
(Aguilar, supra, at p. 850, fn. omitted.) “‘[A]ssessing the sufficiency of the evidence to
determine whether a reasonable juror could find that the plaintiff has satisfied his burden
of persuasion is a traditional judicial function.’” (Id. at p. 856, fn. 26.)
2. Summary Judgment on the Complaint
“The doctrine of after-acquired evidence refers to an employer’s discovery,
after an allegedly wrongful termination of employment or refusal to hire, of information
that would have justified a lawful termination or refusal to hire.” (Salas, supra, 59
Cal.4th at p. 428.) “Employee wrongdoing in after-acquired-evidence cases generally
falls into one of two categories: (1) misrepresentations on a resume or job application; or
(2) posthire, on-the-job misconduct.” (Camp v. Jeffer, Mangels, Butler & Marmaro
(1995) 35 Cal. App. 4th 620, 632.)
Plaintiff contends the court erred in granting summary judgment on the
complaint based on the after-acquired evidence doctrine because the doctrine does not
constitute a complete defense. But although Salas, supra, 59 Cal. 4th 407 was not
decided until 10 days after the trial court had issued its order granting summary
judgment, plaintiff’s opening brief relies on cases that had long existed before he filed his
opposition to defendant’s summary judgment motion. In particular, plaintiff analogizes
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this case to Cooper v. Rykoff-Sexton, Inc. (1994) 24 Cal. App. 4th 614, involving resume
misrepresentation, which “decline[d] to adopt a blanket rule that material falsification of
an employment application is a complete defense to a claim that the employer, while still
unaware of the falsification, terminated the employment in violation of the employee’s
legal rights.” (Id. at p. 617.) According to Cooper: “Neither sound public policy nor the
general law of contract dictates that an employee who can show that despite loyal and
competent service he was fired without cause, in violation of a term of his employment
contract—or because of his age, in violation of statute—nonetheless has forfeited all
resulting legal remedies against his employer because of material misrepresentations he
made years earlier in his employment application. Although resumé fraud is a serious
social problem, so is termination of employment in violation of antidiscrimination laws
or in breach of contract. Automatic forfeiture of all employment rights regardless of the
circumstances can be too harsh a penalty in many cases. Where an employer has fired a
worker in violation of a statutory ban on discrimination in the workplace, the purpose and
effect of the antidiscrimination statutes are unacceptably undermined by a principle that
would allow a fact that played no part in the firing decision to bar any recovery.” (Id. at
pp. 618-619.)
Subsequent California appellate opinions are to the same effect, as well as a
United States Supreme Court case involving the federal Age Discrimination in
Employment Act of 1967 (ADEA; 29 U.S.C. § 621 et seq.). (See McKennon v. Nashville
Banner Pub. Co. (1995) 513 U.S. 352, 361-363 [115 S. Ct. 879, 130 L. Ed. 2d 852]
[summary judgment for employer improperly granted despite after-acquired evidence
employee took home copies of confidential materials because the after-acquired evidence
rule does not bar all relief under ADEA, as that would undermine its goal of eliminating
workplace discrimination, and must be applied on a case-by-case basis in light of facts
and equitable considerations] (McKennon); Thompson v. Tracor Flight Systems, Inc.
(2001) 86 Cal. App. 4th 1156, 1174 [“court did not err in failing to bar recovery or
7
equitably reduce the award of damages pursuant to the after-acquired evidence doctrine”
where “[a]t the very least, substantial evidence permitted a reasonable jury to find that
respondent’s motivation in taking [home copies of company documents] constituted poor
judgment and not theft, and would have subjected her to, at most, lesser measures of
‘progressive discipline’ instead of termination”]; Murillo v. Rite Stuff Foods, Inc. (1998)
65 Cal. App. 4th 833, 846, 847 [summary judgment for employer reversed despite
employee’s false documentation of U.S. residency where it could be inferred employer
“tacitly condoned the hiring of undocumented aliens as long as they presented false
documentation” and “there is no sound reason why either the after-acquired-evidence
doctrine or the unclean hands doctrine should bar plaintiff’s discrimination or tort claims”
where they arose “from acts occurring during her employment” as opposed to her
discharge]; but see Camp v. Jeffer, Mangels, Butler & Marmaro, supra, 35 Cal.App.4th
at pp. 636, 638 [in affirming summary judgment for the employer, court distinguished an
employer’s internal, self-imposed job requirements from those imposed by the federal
government and concluded “the equities” required application of the after-acquired
evidence doctrine where the plaintiffs’ failure to disclose their prior felony convictions
“went to the heart of their employment relationship with [the defendant]” and placed the
defendant “not only in jeopardy of losing its contract with [a government agency] but
also of being accused of” falsely certifying to the federal government that all employees
met the government agency’s standards].)
This body of law had long been in existence when plaintiff’s then counsel
filed the opposition to defendant’s summary judgment on the complaint. Yet no
argument was made in opposition to the after-acquired evidence defense raised in
defendant’s moving papers. Even after our Supreme Court issued its decision in Salas,
supra, 59 Cal. 4th 407, plaintiff’s counsel did not bring the issue to the trial court’s
attention by way of a posttrial motion or otherwise. Rather, Salas and the contention that
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the after-acquired evidence doctrine is not a complete defense to plaintiff’s claims was
not raised until plaintiff’s opening brief.
During oral argument, plaintiff’s newly-retained appellate counsel argued it
would be unfair to require a party appearing in pro. per. to raise issues set forth in a case
not yet decided. But at the time Salas, supra, 59 Cal. 4th 407 was decided, plaintiff was
still represented by trial counsel. And, well before then, several courts had already
weighed in on the issue of whether after-acquired evidence constitutes a complete
defense to claims of employment discrimination and wrongful termination.
Generally, we would decline to consider an argument raised for the first
time on appeal. (Noe v. Superior Court (2015) 237 Cal. App. 4th 316, 335.) But we may
consider the issue because “‘[it] involves purely a legal question which rests on an
uncontroverted record which could not have been altered by the presentation of additional
evidence.’” (Ibid.) We shall do so in light of Salas, supra, 59 Cal. 4th 407.
In Salas, supra, 59 Cal. 4th 407, the California Supreme Court, relying on
the principles set forth in McKennon, supra, 513 U.S. at pages 358-363, held,
“Achievement of [the] antidiscrimination goal [identified in the FEHA] would be
substantially impaired if the doctrine of after-acquired evidence were a complete defense
to claims of retaliation and disability discrimination brought under the FEHA. By
definition, after-acquired evidence is not known to the employer at the time of the
allegedly unlawful termination or refusal to hire. [Citation.] In after-acquired evidence
cases, the employer’s alleged wrongful act in violation of the FEHA’s strong public
policy precedes the employer’s discovery of information that would have justified the
employer’s decision. To allow such after-acquired evidence to be a complete defense
would eviscerate the public policies embodied in the FEHA by allowing an employer to
engage in invidious employment discrimination with total impunity.
“It does not follow, however, that the doctrine of after-acquired evidence
has no bearing on employment discrimination and retaliation claims brought under
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California’s FEHA. . . . In after-acquired evidence cases, . . . both the employee’s rights
and the employer’s prerogatives deserve recognition. The relative equities will vary from
case to case, depending on the nature and consequences of any wrongdoing on either
side, a circumstance that counsels against rigidity in fashioning appropriate remedies in
those actions where an employer relies on after-acquired evidence to defeat an
employee’s FEHA claims.
“Generally, the employee’s remedies should not afford compensation for
loss of employment during the period after the employer’s discovery of the evidence
relating to the employee’s wrongdoing. When the employer shows that information
acquired after the employee’s claim has been made would have led to a lawful discharge
or other employment action, remedies such as reinstatement, promotion, and pay for
periods after the employer learned of such information would be ‘inequitable and
pointless,’ as they grant remedial relief for a period during which the plaintiff employee
was no longer in the defendant’s employment and had no right to such employment.
[Citation.]
“The remedial relief generally should compensate the employee for loss of
employment from the date of wrongful discharge or refusal to hire to the date on which
the employer acquired information of the employee’s wrongdoing or ineligibility for
employment. Fashioning remedies based on the relative equities of the parties prevents
the employer from violating California’s FEHA with impunity while also preventing an
employee or job applicant from obtaining lost wages compensation for a period during
which the employee or applicant would not in any event have been employed by the
employer. In an appropriate case, it would also prevent an employee from recovering any
lost wages when the employee’s wrongdoing is particularly egregious.” (Salas, supra, 59
Cal.4th at pp. 430-431, fn. omitted.)
In light of the holding in Salas, supra, 59 Cal. 4th 407, the trial court erred
in granting summary judgment based on its conclusion the after-acquired evidence
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doctrine constituted a complete defense to plaintiff’s claims. The judgment as to the
complaint is reversed. The matter is remanded for the trial court to consider whether the
remaining ground raised in defendant’s motion entitle it to summary judgment and, if not,
for further proceedings, keeping in mind the equitable principles set forth in Salas with
regard to the after-acquired evidence rule.
3. Summary Judgment/Adjudication on the Cross-Complaint
Defendant’s cross-complaint sought, among other things, statutory
penalties under section 637.2 of $5,000 per violation of section 632 or three times its
actual damages, whichever is greater. Section 632, subdivision (a) makes it illegal to
“intentionally and without the consent of all parties to a confidential communication, by
means of any electronic amplifying or recording device, eavesdrop[] upon or record[] the
confidential communication, whether the communication is carried on among the parties
in the presence of one another . . . .” Subdivision (c) defines a “‘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, but excludes a communication made . . . in any . . . circumstance in which
the parties to the communication may reasonably expect that the communication may be
overheard or recorded.”
“The test of confidentiality is objective. [The recording party’s] subjective
intent is irrelevant. [Citation.] ‘A communication must be protected if either party
reasonably expects the communication to be confined to the parties.’ [Citation.] It is
sufficient [if the persons] who were secretly recorded expected the conversations to be
private.” (Coulter v. Bank of America (1994) 28 Cal. App. 4th 923, 929 (Coulter).)
Plaintiff contends triable issues of material fact exist as to whether the
recorded communications were made under circumstances in which the parties may
reasonably expect they were not being overheard or recorded. We disagree.
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The facts of Coulter, supra, 28 Cal. App. 4th 923 are virtually identical to
those in this case. During his employment, Coulter “began to experience largely
unexplained problems with various supervisors and coworkers at the bank in 1989. In
apparent anticipation of litigation he would later file, claiming sexual harassment and
lack of adequate grievance review procedures, Coulter began secretly tape-recording
face-to-face and telephone conversations with various bank employees, supervisors and
officers.” (Id. at p. 925.) After Coulter filed his complaint, he turned over numerous
tapes “containing 160 secretly recorded conversations with bank employees.” (Ibid.)
The bank and 11 employees cross-complained for violation of the Privacy Act, among
other things, and moved for summary adjudication. The 11 employees “submitted
affidavits stating the conversations were in private, they intended them to be confidential,
and they did not consent to their being recorded.” (Id. at p. 926.) The affidavits detailed
“the circumstances surrounding the conversations, the topics discussed and their own
belief and expectation that the conversations were confidential.” (Id. at p. 929.) The trial
court granted the motion and this court affirmed. (Id. at pp. 925, 927-928, 930.)
Here, each of the other parties to the conversations recorded by plaintiff
filed similar declarations. These affidavits stated the recorded conversations were made
either in an office or a conference room on defendant’s property. All but one of the
recordings involved defendant’s job performance, duties, and responsibilities or those of
his coworkers, his work relationships with supervisors and coworkers, or the ongoing
investigation into his complaints. Each of the other parties to these recordings attested
they were speaking with plaintiff in their various capacities in defendant’s human
resources, investigations or management departments when they were recorded.
The remaining recording was of the private training session conducted by
the outside contractor in one of defendant’s offices. The training session was entitled,
“The Courage to Speak Up: Voicing Employee Concerns” and “involved ethics and
reporting suspected ethical violations.” As to that recording, defendant’s “HR Project
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Manager” declared that the outside contractor and most of defendant’s other “employees
in attendance spoke.” She expected the conversations engaged in during the training
session “to be private and did not expect the training session to be recorded. [She] knew
that [her d]epartment expected the training session and what was discussed . . . to be
private.” Additionally, she herself spoke during the training “in the course of fulfilling
[her] duties.”
All of the declarants attested that they expected the conversations to be
private, did not anticipate they would be recorded, and did not know they had been
recorded until several months after plaintiff’s employment had been terminated. Plaintiff
did not contest these facts.
The evidence produced by defendant satisfied its initial burden as the cross-
complainant to make prima facie showing the absence of any triable issues of material
fact. (See Thrifty Oil Co. v. Superior Court (2001) 91 Cal. App. 4th 1070, 1077 [evidence
is sufficient to shift the burden of proof to the opposing party if “standing alone,
uncontroverted, and without submission of any issue to a trier of fact, [such evidence]
would compel a . . . verdict” in the moving party’s favor at trial].) The burden thus
shifted to plaintiff to demonstrate otherwise. (Code Civ. Proc., § 437c, subd. (p)(1);
Aguilar, supra, 25 Cal.4th at pp. 850-851.)
In Coulter, the plaintiff maintained a material issue of fact existed as to
whether the conversations were confidential because he never intended them to be so and
“expected that the subject matter of the conversations would be repeated to other bank
employees.” (Coulter, supra, 28 Cal.App.4th at p. 929.) Plaintiff here makes a similar
argument, namely that, he “did not have a reasonable expectation of privacy” but rather
“had the objective expectation that co-workers in other offices” and the break room could
overhear him. We reject this argument. First, his “expectation” was subjective, not
objective. Second, as stated in Coulter: plaintiff’s “subjective intent is irrelevant.
[Citation.] ‘A communication must be protected if either party reasonably expects the
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communication to be confined to the parties.’ [Citation.] It is sufficient that
the . . . employees who were secretly recorded expected the conversations to be private.”
(Ibid.)
As Coulter explained, “‘[U]nder section 632 “confidentiality” appears to
require nothing more than the existence of a reasonable expectation by one of the parties
that no one is “listening in” or overhearing the conversation.’ [Citation.] There was no
material issue regarding confidentiality. Each of the employees involved submitted a
declaration stating he or she believed the conversations to be private, most were held in
private offices with no one else present, and they believed no one else was listening in on
their conversations. Coulter provided no evidence to the contrary. He admitted the
circumstances of each conversation. No evidence suggests the employees whose
conversations he recorded did not have a reasonable expectation the conversations were
confidential.” (Coulter, supra, 28 Cal.App.4th at pp. 929-930.)
In his opposition, plaintiff acknowledged this “makes sense, as in any case,
if there is no evidence to the contrary, then there is obviously no triable issue of material
fact.” He argued that unlike Coulter, supra, 28 Cal.App.4th at pages 929-930, however,
he presented evidence of “numerous facts to indicate that the participants to the
conversations had no reasonable expectation of privacy.”
In his affidavit in support of his opposition to the summary judgment
motion on the cross-complaint, plaintiff declared: the doors to the offices and conference
room where the conversations took place were open; the offices were “no more than 4-5
feet from the closest neighboring office” and “opene[d] to a hallway with approximately
5 other open office doors within an 8-10 foot radius”; “the conference room is in a high
traffic area and within hearing distance of the break room”; “muffled third party
conversations” and telephones ringing could be heard in the background in his
recordings; “[o]n several occasions, people walked in and out of the conference room and
could easily overhear the non-private conversations.”
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Plaintiff fails to provide any context for the “people walk[ing] in and out of
the conference room,” including whether they did so during one of the recorded
conversations and if so, whether the conversations continued with them present.
Additionally, “[a] business office need not be sealed to offer its occupant a reasonable
degree of privacy.” (United States v. McIntyre (9th Cir. 1978) 582 F.2d 1221, 1224,
quoted with approval in Sanders v. American Broadcasting Companies (1999) 20 Cal. 4th
907, 918-919 (Sanders).) And the fact the third party conversations heard in the
recordings were “muffled” indicates their contents could not be perceived
notwithstanding the open doors, the nearness of the offices to each other, the proximity of
the break room to the conference room, and the conference room being in “a high traffic
area.” If the third party conversations could not be discerned under these facts, it is not
logically inferable based on those same facts that the recorded parties could have
reasonably expected their conversations to be overheard or recorded. “‘An inference is a
deduction of fact that may logically and reasonably be drawn from another fact or group
of facts found or otherwise established in the action.’ [Citation.] An inference must be
reasonable to raise a triable issue of material fact on summary judgment.” [Citation.]
While we may not weigh [plaintiff’s] evidence or inferences against [defendant’s]
evidence as though we are sitting as a trier of fact, we ‘must nevertheless determine what
any evidence or inference could show or imply to a reasonable trier of fact . . . . In doing
so, [we do] not decide on any finding of [our] own, but simply decide[] what finding such
a trier of fact could make for itself.’” (Carlsen, supra, 227 Cal.App.4th at pp. 891-892
[evidence that the defendant “may have possessed the motive, opportunity, and means to
push [plaintiff] off the cliff” “is not enough” but “merely allows speculation,” which “is
not evidence”].)
Plaintiff also attested that the training session was “open to any employee
who signed up for it,” attended by “at least 10 other employees,” and “conducted in a
class like, open forum format, and participants were able to ask questions and receive
15
answers from the trainer.” He argued these facts showed there could be no “expectation
that co-workers would keep whatever was discussed during the training to be private.”
But everyone who attended the training session was a “party” to the
conversations therein. “A ‘party’ to something may be a person who participates in it, or
it may be a person who is simply concerned with it. [Citation.] ‘Overhear’ connotes
listening without a speaker’s knowledge or intent that his speech be heard, as in
eavesdropping, which is ‘to listen secretly to what is said in private.’ [Citation.] It
follows that one who listens with the speaker’s knowledge and intent is involved or
interested in a conversation, not an eavesdropper.” (Lieberman v. KCOP Television, Inc.
(2003) 110 Cal. App. 4th 156, 168.)
The fact no one in the training session was an eavesdropper does not mean
plaintiff did not violate section 632 by using an “amplifying or recording device [to]
record[] the confidential communication.” (§ 632, subd. (a).) Nor does it suggest the
persons recorded reasonably expected their conversations during the training session
would be overheard or recorded. (§ 632, subd. (c).) Defendant’s human resources
project manager declared otherwise and plaintiff presented no contrary evidence in
response.
Moreover, whether or not coworkers would later discuss matters from the
training “has no bearing on whether section 632 has been violated. ‘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.] ‘[U]nder
section 632, “confidentiality” appears to require nothing more than the existence of a
reasonable expectation by one of the parties that no one is “listening in” or overhearing
the conversation.’” (Coulter, supra, 28 Cal.App.4th at p. 929.) Thus, “the fact that [a
person] knows or should know the information will be shared with coemployees or other
16
parties does not change the confidential character of a communication for purposes of
section 632.” (Kight v. CashCall, Inc. (2011) 200 Cal. App. 4th 1377, 1397, citing
Flanagan v. Flanagan (2002) 27 Cal. 4th 766, 775-776.)
A triable issue of material fact is created only if there is enough of a
showing that a jury could reasonably find for the opposing party. (Aguilar, supra, 25
Cal.4th at p. 850.) The evidence presented by plaintiff does not rise to this level. Rather,
as the trial court found, plaintiff’s “evidence suggesting it was possible the
communications might be overheard by those in nearby offices or passersby because the
doors were open or people walked by is too speculative to raise a triable issue of fact as
to whether the parties to the conversations could reasonably expect to be overheard.”
Plaintiff concedes the other parties to the conversations expressly declared they expected
the conversations to be confidential and not recorded. His claim that they did not have
that desire lacks merit given the undisputed nature of the declarations and the speculative
nature of his evidence. Thus, although generally “[i]t is for the jury to decide whether
under the circumstance presented [a party to a conversation] could have reasonably
expected that the communications were private” (Lieberman v. KCOP Television, Inc.,
supra, 110 Cal.App.4th at p. 169), it may be resolved as an issue of law on summary
judgment when the material facts are undisputed. (Grenier v. City of Irwindale (1997) 57
Cal. App. 4th 931, 939-940.)
The cases on which plaintiff relies do no persuade us otherwise. Sanders,
supra, 20 Cal.4th at page 911 concluded: “In an office or other workplace to which the
general public does not have unfettered access, employees may enjoy a limited, but
legitimate, expectation that their conversations and other interactions will not be secretly
videotaped . . . even though those conversations may not have been completely private
from the participants’ coworkers.” Plaintiff, however, asserts such expectation of privacy
is also “limited, especially in this instance, where the person doing the recording is not a
stranger to the workplace.” But Sanders does not support his claim. At the page
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referenced by plaintiff, Sanders was discussing an employee’s “reasonable expectation of
privacy against the employer’s filming of events at another employee’s desk” or shared
workspaces. (Id. at p. 920.) Nothing in Sanders purports to limit employees’ privacy
expectations against a coworker’s covert recordings of conversations with other
coworkers.
We do not disagree with the statement in Walker v. Darby (11th Cir. 1990)
911 F.2d 1573 distinguishing “between a public employee having a reasonable
expectation of privacy in personal conversations taking place in the workplace and
having a reasonable expectation that those conversations will not be intercepted by a
device which allows them to be overheard inside an office in another area of the
building.” (Id. at p. 1579.) Also, plaintiff is correct the court there found a triable issue
of fact remained as to whether the plaintiff “had a subjective expectation that
conversations taking place near his [workstation located in a shared space] were free
from interception.” (Ibid.) But that question, involving one of the elements required to
prove a violation of the federal anti-wiretapping law, is different from whether parties to
communications in private offices and conference rooms may reasonably expect those
communications to be overheard or recorded within the meaning of section 632,
subdivision (c). And although the plaintiff in Walker was able to create a triable issue of
material fact so as to preserve his claim for trial by declaring he never gave permission to
be intercepted or monitored, plaintiff here offered only speculation and conjecture in the
face of affidavits attesting to the declarants’ expectations their conversations were private
and not being recorded.
Finally, plaintiff cites Kemp v. Block (D. Nev. 1985) 607 F. Supp. 1262 for
the proposition that “one who argues loudly in a small undivided workplace cannot
reasonably expect privacy.” But plaintiff present no evidence that anyone spoke loudly,
much less argued, or that they did so in a shop of a “relatively small size” with no
“interior walls.” (Id. at p. 1264.)
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DISPOSITION
The judgment is reversed with respect to plaintiff’s complaint against
defendant and the matter is remanded for further proceedings. The judgment is affirmed
insofar as it relates to the granting of defendant’s cross-complaint against plaintiff. The
parties shall bear their own costs.
RYLAARSDAM, ACTING P. J.
WE CONCUR:
BEDSWORTH, J.
MOORE, J.
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