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Sanders v. American Broadcasting Companies Inc.6/24/1999
Defendant Stacy Lescht, a reporter employed by defendant American Broadcasting Companies, Inc. (ABC), obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG), which also employed plaintiff Mark Sanders in that same capacity. While she worked in PMG's Los Angeles office, Lescht, who wore a small video camera hidden in her hat, covertly videotaped her conversations with several co-workers, including Sanders.
Sanders sued Lescht and ABC for, among other causes of action, the tort of invasion of privacy by intrusion. Although a jury found for Sanders on the intrusion cause of action, the Court of Appeal reversed the resulting judgment in his favor on the ground that the jury finding for the defense on another cause of action, violation of Penal Code section 632, established Sanders could have had no reasonable expectation of privacy in his workplace conversations because such conversations could be overheard by others in the shared office space. We granted review to determine whether the fact a workplace interaction might be witnessed by others on the premises necessarily defeats, for purposes of tort law, any reasonable expectation of privacy the participants have against covert videotaping by a journalist. We conclude it does not: 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 by undercover television reporters, even though those conversations may not have been completely private from the participants' co-workers. For this reason, contrary to the Court of Appeal's holding, the jury's finding as to Penal Code section 632 did not require the trial court to enter non-suit on, or otherwise dispose of, Sanders's cause of action for tortious intrusion. Nor, we also conclude, were the jury instructions on the intrusion cause of action prejudicially erroneous.
Although we reverse, for these reasons, the Court of Appeal's judgment for defendants, we do not hold or imply that investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores or other workplaces. Whether a reasonable expectation of privacy is violated by such recording depends on the exact nature of the conduct and all the surrounding circumstances. In addition, liability under the intrusion tort requires that the invasion be highly offensive to a reasonable person, considering, among other factors, the motive of the alleged intruder. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231, 236; Miller v. National Broadcasting Co. (1986) 187 Cal.App.3d 1463, 1483-1484.) The scope of our review in this case does not include any question regarding the offensiveness element of the tort, and we therefore express no view on the offensiveness or inoffensiveness of defendants' conduct. We hold only that, where the other elements of the intrusion tort are proven, the cause of action is not defeated as a matter of law simply because the events or conversations upon which the defendant allegedly intruded were not completely private from all other eyes and ears.
Factual and Procedural Background
In 1992, plaintiff Mark Sanders was working as a telepsychic in PMG's Los Angeles office, giving "readings" to customers who telephoned PMG's 900 number (for which they were charged a per-minute fee). The psychics' work area consisted of a large room with rows of cubicles, about 100 total, in which the psychics took their calls. Each cubicle was enclosed on three sides by five-foot-high partitions. The facility also included a separate lunch room and enclosed offices for
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