Briefs and Other Related Documents



Briefs and Other Related Documents

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

Court of Appeal, Second District, Division 1, California.

Camilla NUNEZ, Plaintiff and Appellant,

v.

S. MELGAR INVESTIGATIONS, INC., et al., Defendants and Respondents.

No. B162945.

(Los Angeles County Super. Ct. No. BC248046).

Aug. 30, 2004.

APPEAL from a judgment of the Superior Court of Los Angeles County, Victor H. Person, Judge. Reversed.

Pine & Pine, Norman Pine, Beverly Tillett Pine; Graiwer & Kaplan and Gary R. Kaplan for Plaintiff and Appellant.

Breidenbach, Hutching & Hamblet, Christopher A. Kanjo, Josephine M. Chow and A. Steven Dotan for Defendants and Respondents.

MALLANO, J.

*1 Plaintiff Camilla Nunez sustained work-related injuries of an orthopedic and psychiatric nature and filed a workers' compensation claim. She was found to be totally and permanently disabled. She was also suicidal.

The workers' compensation insurer retained a private investigation agency to determine whether Nunez's claim was fraudulent, notwithstanding the findings of two agreed medical examiners that Nunez was disabled. According to Nunez, the investigators conducted extreme, outrageous, and highly offensive surveillance of her, her children, and her home, resulting in her attempts to commit suicide.

Nunez filed this action against the insurer, the investigation agency, and two investigators, alleging causes of action arising out of the surveillance. The agency and the investigators moved for summary judgment. Nunez opposed the motion. The trial court granted summary judgment, concluding that the surveillance was not sufficiently intrusive or extreme to state a claim.

We conclude that Nunez's evidence in opposition to the summary judgment motion showed extremely outrageous and highly offensive conduct by the investigators, creating a triable issue of material fact. Accordingly, we reverse.

I

BACKGROUND

Because this case comes to us on appeal from a grant of summary judgment, we treat all of the factual assertions and reasonable inferences supported by plaintiff's evidence as true. (See Jackson v. County of Los AngelesHYPERLINK "" (1997) 60 Cal.App.4th 171, 179.)

In 1985 or 1986, Nunez began work as a seamstress for the McGuire-Nicholas Company. She later worked as a fabric trimmer at McGuire. She sustained work-related injuries and filed a workers' compensation claim in June 1994. She sought benefits for orthopedic and psychiatric injuries. Her last day of work was June 8, 1994.

McGuire forwarded Nunez's claim to Argonaut Insurance Company. Argonaut and Nunez selected Melvin R. Stoltz, M.D., as an agreed medical examiner to evaluate Nunez's orthopedic injuries. In a nine-page report dated January 26, 1998, Stoltz noted that, during Nunez's employment, she had suffered several work-related physical injuries, the most recent on July 24, 1992, when she attempted to lift a box of leather material weighing about 50 pounds and experienced a popping sensation in her back. As of January 26, 1998, Nunez complained about pain in her neck radiating into both shoulders and arms, and upper and lower back pain. She had intermittent headaches, occurring daily, of variable duration. She experienced nausea and blurred vision.

Dr. Stoltz's report also stated: "Objective findings include local tenderness, spasm and diminished painful motion. Prophylactic restrictions are recommended for the entire spine precluding very heavy work and repetitive or prolonged use of the upper extremities at or above the shoulder level.... A permanent and stationary rating was appropriate by May of 1995."

Argonaut and Nunez chose Michael J. Singer, M.D., as an agreed medical examiner for the purpose of evaluating Nunez's psychiatric injuries. By report dated July 29, 1997, consisting of 53 pages, Dr. Singer concluded: "[I]t is believed that the cumulative stress and strain [Ms. Nunez described] as a result of constant harassment and pressure that was put upon her by her supervisor ... would have been reasonable cause for Ms. Nunez to have developed a Generalized Anxiety Disorder, and a Major Depression, chronic. It is also believed [Ms. Nunez developed] a Pain Disorder Associated with both psychological factors and a general medical condition, or a Pain Disorder Associated with psychological factors alone...."

*2 Dr. Singer believed that Nunez's condition became permanent and stationary in September 1995. As of July 29, 1997, he reported her symptoms as anxiety, tension, agitation, depression, fear of being with people, and difficulty sleeping due to chronic pain over her entire body.

On September 4, 1998, Argonaut retained defendant S. Melgar Investigations, a private investigation firm, to conduct surveillance of Nunez's activities, apparently because Argonaut thought that Nunez's workers' compensation claim might be fraudulent. Argonaut asked Melgar to perform an "activity check," that is, to observe Nunez for four to six hours and report back any activity to the claims adjuster. An "assignment sheet" generated by Melgar stated that Nunez "claims she can't cook, clean, or even care for personal hygiene" and indicated that investigators were to "[l]ook for Any activity AT ALL." (Underscoring and capitals in original.) The sheet also noted that Nunez was suicidal. In fact, in June 1998, Nunez attempted to commit suicide.

On September 11, 1998, Melgar sent Argonaut a written report summarizing the results of the activity check. Nunez's home was under surveillance from 5:00 a.m. to 3:00 p.m. on September 9. She lived in a duplex that had a gated fence in front and in back. To reach the front door of the residence, a person had to open the gate and walk up some steps. Nunez's husband, daughter, and son also lived in the duplex.

According to the report, Nunez "answered the phone several times in a very friendly voice during pretext calls to confirm her presence [in the residence]." In placing a pretext call, the investigator would wait for Nunez to answer the telephone and then immediately end the call as an "incorrect dial." In addition to making the telephone calls, the investigator performed a "neighborhood canvas" to obtain information about Nunez's living situation and activities. It was learned that Nunez lived with her daughter and was active most days. Defendant Soni Melgar (Ms. Melgar), a licensed private investigator, signed the report and recommended that Argonaut proceed with a sub-rosa investigation, which typically consisted of eight to ten hours of surveillance.

Argonaut took Ms. Melgar's advice and requested a sub-rosa investigation, which occurred on October 22 and 23, 1998. A written report dated October 28, 1998, followed. It began, "The course of the investigation ... found [Nunez] only moderately active but not observed outside the residence for any extended period of time." As before, the report noted that Nunez "answered the phone during pretext telephone calls in a very open and cheerful manner." The report was signed by Ms. Melgar, who recommended future surveillance.

On October 29, 1998, Argonaut requested that Melgar perform additional investigation, which took place on November 2 and 8, 1998. A written report was created. Nunez's residence was under surveillance from 8:01 a.m. to 5:58 p.m. on November 2, and from 7:47 a.m. to 5:45 p.m. on November 8. The report noted that Nunez was "inactive outside the residence, but alone and caring for herself for extended periods of time and socializing with neighbors and visitors to the residence inside the home [throughout] the day." On November 2, an investigator conducted a "neighborhood canvas" and was told that Nunez was unemployed due to a work-related injury, she spent most of her time at home, and she ran errands during the day, sometimes with her daughter. On November 8, an investigator placed two pretext telephone calls to Nunez's residence and spoke with her. Ms. Melgar's signature appeared at the end of the report, and she recommended further surveillance.

*3 On June 2, 1999, September 29, 1999, and May 4, 2000, Argonaut asked Melgar Investigations to perform additional investigations, each of which resulted in three days of surveillance and a written report. The reports noted the comings and goings of various people, primarily Nunez's daughter, who entered and left Nunez's home. Detailed information appeared in each report, some of which is described below.

The first of the reports, dated May 4, 2000, covered surveillance on June 3, 8, and 10, 1999. The report commented that, on June 3, Nunez's daughter appeared to make "a concerted effort to avoid surveillance activity, parking her vehicle in the rear yard and taking an alley way to and from the residence as well as denying [Nunez's] ability to come to the phone." A pretext call was placed that day but was not answered. Another "neighborhood canvas" was conducted, which revealed that Nunez still lived at the location. According to the report, "A walkup of the residence was conducted and the door was answered by [Nunez's] daughter.... Contact was terminated and stationary surveillance was maintained." Later, Nunez's daughter was seen at the front door, wearing a nightgown. She appeared to have recently awakened. On June 8, a pretext call was placed at 7:15 a.m. and was answered by Nunez's daughter, who said Nunez was sick and unable to come to the telephone. On June 10, Nunez was followed while her daughter drove her to a supermarket, another residence, and back home. Nunez was videotaped during portions of this trip, primarily as she entered and exited the vehicle.

The second report, also dated May 4, 2000, covered surveillance on October 29, 30, and 31, 1999. On October 29, a pretext call was placed at 8:30 a.m., which confirmed Nunez's presence in the home. At around 1:06 p.m., Nunez "could be briefly and partially observed through security fencing at the rear of the residence moving about and interacting with a dog and a cat...." On October 30, a pretext telephone call was placed at 9:00 a.m., which confirmed that Nunez was home. On October 31, another pretext call was placed at 9:00 a.m., with the same result. The report was signed by Ms. Melgar, who recommended intermittent follow-up investigations.

The final report, dated June 13, 2000, covered surveillance on May 31, June 1, and June 2, 2000. According to the investigators, "[t]he course of this investigation ... found [Nunez] only moderately active on the first day and able to be videotaped attending medical appointments and treatments at both county and private facilities." On the second day, a pretext telephone call was placed at 9:10 a.m., which confirmed Nunez's presence at the residence. On the final day, Nunez was not seen during the surveillance of her home.

Ms. Melgar testified at her deposition that these investigations were conducted by her and another licensed private investigator, defendant Raphael De Los Rios, who worked for Melgar Investigations as a subcontractor. Ms. Melgar used a Sony handicam, equipped with telephoto and wide angle lenses. De Los Rios also carried a camera and used binoculars on occasion.

*4 According to Nunez's son, Kelvin Garcia, someone would call on the telephone and ask for his mother 20 to 25 times almost every day and then hang up. Nunez's daughter, Claudia Garcia, remembers countless "bogus" telephone calls for her mother, some so early in the morning or late at night that the calls would wake up everyone. Nunez's husband, Roberto Garcia, recalls that, from 1998 to 2002, they got four to five "wrong number" telephone calls a day, either early in the morning or late at night (when he was not at work).

On more than four occasions, Claudia saw a man trying to climb over the fence and into the backyard. The fence was around six feet high, consisting of vertical metal bars with plywood in between. On at least three occasions, Claudia saw the same woman come to the front door, knock, and, when no one answered, try to look through the window. Kelvin witnessed similar incidents. For example, on one occasion, he saw a "short Hispanic guy" trying to look over the gate in the backyard.

At some point in 1999, Nunez saw people outside the backyard fence, standing on something and peering over the fence with a camera. She came inside the house very upset and told Kelvin about it. He ran outside to chase them off, but they were already in their car and driving away. Another time, Claudia and Kelvin spotted a Caucasian man crawling up the fence in the backyard, carrying a camera. When they asked him what he was doing, he jumped down and ran away. Because of these incidents, Nunez got two dogs--a pit bull and a medium-sized "mutt"--for protection.

On another occasion, Claudia and Kelvin saw two people, a man and a woman, parked in a vehicle in front of the house, taking pictures of the residence. Nunez's caretaker, Irma Padilla, recalls seeing two people parked on the street, taking pictures of the front of the home.

A number of times, Claudia and Kelvin were followed as they drove away from the residence. Claudia was tailed about four times, twice by a light-colored sport utility vehicle (SUV) and once or twice by a blue car, possibly an Oldsmobile. On one occasion, the SUV followed Claudia from home to work. Kelvin was followed to a Jack in the Box restaurant. Once there, the driver of the other vehicle got out, took pictures of Kelvin, and left. Kelvin believes he was followed another time.

On one occasion, Claudia and Kelvin were returning home from a store and parked the car on the street. A man and a woman in a blue Cutlass passed right in front of their faces. The man, who was driving, took pictures of Claudia and the residence. Nunez saw what happened and got upset.

Eventually, these events appear to have taken their toll on Nunez. She wanted to have the curtains drawn and to be locked inside the house. If the telephone rang, she would get nervous and cry. She did not want to go outside. She would not answer the door. She felt that she was being persecuted.

On another occasion, Nunez became hysterical when she saw two people in a car taking pictures of the home. Claudia and Kelvin had to take her to the hospital. In 1998, after Kelvin told his mother he had just seen a man with a camera trying to climb the backyard fence, she began to cry and shake. In Claudia's words, her mother "lost it." Claudia drove Nunez to the hospital.

*5 In 1998, Nunez told Claudia that the insurance company investigators "were out to get her." In a medical report dated September 19, 2000, Dr. Carmen Gonzalez-Nate stated that Nunez "believes ... she is being stalked and being watched and added, 'They do not want to leave me alone, they are knocking on my door, watching the light bulbs, and watching with a hidden camera. ['] ... [¶ ] ... She is unable to sleep, easily agitated, tearful and tired, [and] added, 'I'm tired of this, I can't be safe in my own home,['] feels she is being harassed by insurance investigators.... [¶ ] ... [¶ ] ... She ... believ [es] that the investigators of Worker's Compensation are out to kill her...."

In 2000, Nunez attempted suicide twice. Asked if he knew what triggered the attempts, Kelvin testified at his deposition, "It's always been the investigators. Every time she hears, every time the phone rings, and then they hang up, or they say it's the wrong number, she is like 'Who was it?' [¶ ] And I tell her, 'Don't worry. They hung up.' Or I tell her it was the wrong number, she always freaks out. And if she sees cars parked in front, or people that don't even live around the area, people that we don't even know, she will be like--she'll freak out."

In September 2000, the manager of clinical services at Nunez's treating hospital informed Argonaut by letter that Nunez had threatened to harm its employees. Argonaut informed Melgar Investigations of the threats. Melgar obtained a restraining order against Nunez.

On or about February 13, 2001, Argonaut stipulated to a workers' compensation award, providing Nunez with benefits for her orthopedic injuries. On or about February 15, 2001, the Workers' Compensation Appeals Board issued "Findings and Award and Orders," declaring that the injury to Nunez's psyche had caused a permanent disability of 100 percent, for which she was awarded a lifetime monthly disability payment.

In 2001, Nunez was hospitalized about 90 percent of the year. Her condition worsened. She is now institutionalized.

On April 4, 2001, Nunez filed this action against Argonaut, Melgar Investigations, Ms. Melgar, and Raphael De Los Rios, alleging causes of action for intentional infliction of emotional distress, invasion of privacy, and violation of Civil Code section 1708.8. [FN1] The complaint alleged that defendants had followed, stalked, and conducted surveillance of Nunez on at least 14 days between September 9, 1998, and June 2, 2000, using various techniques, including knocking on the front door and misrepresenting who they were, using the telephone early in the morning to wake her up, placing telephone calls to her home and hanging up when she answered the phone, and climbing on and over the fence to observe conduct occurring within the privacy of her home. Nunez further alleged that defendants knew at the time of the surveillance that she was suffering from depression and anxiety and that she was unstable, suicidal, and totally disabled. Nunez sought general, special, and punitive damages.

FN1. This statute authorizes the recovery of damages against a person who commits an act of physical or constructive invasion of privacy, which is defined to include entering onto the land of another without permission with the intent to capture any type of visual image of a personal or familial activity where the invasion occurs in a manner that is offensive to a reasonable person.

*6 On August 2, 2002, Melgar Investigations, Ms. Melgar, and Raphael De Los Rios (defendants or the Melgar defendants) filed a motion for summary judgment and, in the alternative, for summary adjudication of issues. Nunez filed opposition papers. Defendants filed a reply and written objections to Nunez's evidence. On October 24, 2002, the trial court sustained some of the objections, granted summary judgment, and entered judgment accordingly. Nunez filed a timely appeal.

II

DISCUSSION

A motion for summary judgment must 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 judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

" 'A defendant seeking summary judgment has met the burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established [or that there is a complete defense to that cause of action].... In reviewing the propriety of a summary judgment, the appellate court independently reviews the record that was before the trial court.... We must determine whether the facts as shown by the parties give rise to a triable issue of material fact.... [T]he moving party's affidavits are strictly construed while those of the opposing party are liberally construed.' ... We accept as undisputed facts only those portions of the moving party's evidence that are not contradicted by the opposing party's evidence.... In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences therefrom must be accepted as true." (Jackson v. County of Los Angeles, supra,HYPERLINK "" 60 Cal.App.4th at pp. 178-179, citations omitted, italics added.)

"[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon.... There is a triable issue of material fact if, and only if, the evidence 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....

"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact....

"[H]ow the parties moving for, and opposing, summary judgment may each carry their burden of persuasion and/or production depends on which would bear what burden of proof at trial." (Aguilar v. Atlantic Richfield Co.HYPERLINK "" (2001) 25 Cal.4th 826, 850-851, citation and fn. omitted, italics in original.) "[I]f the court concludes that the plaintiff's evidence or inferences raise a triable issue of material fact, it must conclude its consideration and deny the defendants' motion." (HYPERLINK "" Id.HYPERLINK "" at p. 856, italics added.)

*7 "To prevail in [an] ... action, the plaintiff must establish every essential element of her case by a preponderance of the evidence.... 'Preponderance of the evidence' is usually defined in terms of 'probability of truth,' for example as evidence that, " 'when weighed with that opposed to it, has more convincing force and the greater probability of truth.' " ... In deciding whether a plaintiff has met her 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....

"... Where ... the plaintiff seeks to prove an essential element of her case by circumstantial evidence, she cannot recover merely by showing that the inferences she draws from those circumstances are consistent with her theory. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her.... [I]t is axiomatic that an inference may not be based on suspicion alone, or on imagination, speculation, surmise, conjecture or guesswork." (Leslie G. v. Perry & AssociatesHYPERLINK "" (1996) 43 Cal.App.4th 472, 482-483, citations omitted, italics in original.)

Here, in granting summary judgment, the trial court commented: "The undisputed evidence establishes that the only things defendants did was make a few pretext phone calls to determine if [Nunez] was at home, conducted one pretext door knock, [and] shot 7-8 minutes of videotape footage of [Nunez] walking in and out of her home, at the supermarket, and walking in and out of a doctor's office.... [¶ ] ... [¶ ] ... Although [Nunez] has alleged that some unidentified person climbed over her fence and peered into her windows, there is no evidence in the record to connect this with any of the Melgar defendants."

But the deposition testimony of Nunez, her children, and her husband shows that the entire family was subjected to countless pretext telephone calls on a daily basis over a period of years. Some of the calls were made so early or late in the day that everyone was asleep and woke up. The calls were maddening. On several occasions, a man with a camera climbed the backyard fence. Investigators even watched Nunez as she played with her dog and cat in the privacy of her own backyard, managing somehow to see her notwithstanding the six-foot metal and plywood fence. At least three pretext door knocks were made, causing Nunez to fear answering the door. More than once, investigators followed Claudia and Kelvin as they drove away from home. Another time, the investigators drove close to both children in order to take pictures. Nunez was thus burdened not only with her own privacy concerns but with ensuring that the investigators did not harm her children.

The trial court correctly noted that Nunez did not submit direct evidence that all of these events were committed by the Melgar defendants. Rather, the evidence was circumstantial. But the trial court erred in completely discounting it. In response to an interrogatory asking Argonaut to identify every person other than itself who contributed to Nunez's claimed injuries, Argonaut responded: "Melgar Investigations, Soni Melgar, Rafael De Los Rios, [plaintiff]." Asked about the factual basis for this response, Argonaut stated that it "hired Melgar Investigations to investigate the activities of [plaintiff] in connection with an allegedly fraudulent workers' compensation claim." And in her deposition testimony, Ms. Melgar admitted surveilling Nunez and her family over a 21-month period and doing many of the acts of which Nunez complains. Thus, given Argonaut's interrogatory responses, Ms. Melgar's admissions, and the evidence submitted by Nunez, a jury could conclude it is more likely that the acts in question were committed by the Melgar defendants than someone else. [FN2]

FN2. Defendants' assertion that Argonaut hired "numerous investigators" is not based on any evidence but, rather, a snippet from Nunez's memorandum of points and authorities in opposition to the summary judgment motion. Those words referred to Doe defendants who might have worked for Melgar Investigations but whose identities were not known to Nunez when she filed the complaint. They are of no consequence for purposes of the summary judgment motion.

A. Intentional Infliction of Emotional Distress

*8 "The elements of a cause of action for intentional infliction of emotional distress are well settled. A plaintiff must allege that (1) the defendant engaged in extreme and outrageous conduct with the intention of causing, or reckless disregard of the probability of causing, severe emotional distress to the plaintiff; (2) the plaintiff actually suffered severe or extreme emotional distress; and (3) the outrageous conduct was the actual and proximate cause of the emotional distress." (Ross v. Creel Printing & Publishing Co .HYPERLINK "" (2002) 100 Cal.App.4th 736, 744-745.) And "[p]laintiff's susceptibility to emotional distress has often been mentioned as significant in determining liability." (Alcorn v. Anbro Engineering, Inc.HYPERLINK "" (1970) 2 Cal.3d 493, 498, fn. 3.)

Of course, "the investigation of [possibly fraudulent insurance] claims is an important function of workers' compensation insurance carriers" (Teague v. Home Ins. Co.HYPERLINK "" (1985) 168 Cal.App.3d 1148, 1152), and "[t]he knowledge that surveillance might exacerbate a claimant's psychological or emotional problems does not preclude the use of reasonable surveillance techniques by compensation carriers" (ibid., italics added). But, based on the evidence submitted by Nunez, the investigation in this case appears to have gone beyond what was reasonable.

Defendants contend that, as a matter of law, their conduct was not extreme or outrageous and that they lacked the requisite intent. Not so. On summary judgment, the allegations of the complaint frame the issues to be addressed in a defendant's motion for summary judgment. (Brantley v. PisaroHYPERLINK "" (1996) 42 Cal.App.4th 1591, 1602.) The complaint alleged that defendants knew Nunez was suffering from depression and anxiety and that she was unstable, suicidal, and totally disabled. Defendants do not cite any evidence to the contrary.

In light of Nunez's mental condition, the conduct described in Nunez's evidence--the incessant "wrong number" telephone calls, the pretext door knocks, the attempts by an investigator to climb over the backyard fence or to take pictures while peering over the fence, the surveillance of Nunez's children as they drove away from the house, the length of the investigation (at least 21 months according to the investigators' written reports), and the "neighborhood canvassing"--is sufficiently extreme and outrageous to create a triable issue as to liability. The jury could find that defendants took a fragile person and drove her to the point of being institutionalized.

The same evidence also precludes a determination on summary judgment that defendants lacked the requisite intent. Nunez's evidence would, at a minimum, support a finding that defendants recklessly disregarded the probability that their actions would cause someone in her mental condition to suffer severe emotional distress.

The decision in Teague v. Home Ins. Co., supra,HYPERLINK "" 168 Cal.App.3d 1148, does not compel a different conclusion. There, the question was whether the conduct of the workers' compensation insurance carrier was so " ' "far beyond the bounds of normal investigation" ' " (HYPERLINK "" id.HYPERLINK "" at p. 1153) that the carrier lost the protection of the Workers' Compensation Act's exclusive remedy provisions (HYPERLINK "" id.HYPERLINK "" at p. 1151). In contrast, the present case involves the liability of an investigation agency and its private investigators--parties who do not come within the scope of the exclusive remedy provisions in the first place. (See Unruh v. Truck Insurance ExchangeHYPERLINK "" (1972) 7 Cal.3d 616, 625-626 & fn. 11.) Further, the investigative acts challenged in Teague--entry into the garage area of the claimant's home and entry into his vehicle--were not as extensive or prolonged as the investigation conducted here.

B. Invasion of Privacy

*9 " '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 his privacy, if the intrusion would be highly offensive to a reasonable person.' ... The definition of the intrusion tort consists of two elements: '(1) the intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person.' ... The Supreme Court has defined the first element as follows: '[T]he plaintiff must show that 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." (Sanchez-Scott v. Alza PharmaceuticalsHYPERLINK "" (2001) 86 Cal.App.4th 365, 372, citations omitted.)

"[I]n determining whether offensiveness exists, a court must consider a variety of circumstances of the intrusion.... The factors include: (1) the degree of intrusion; (2) the context, conduct and circumstances surrounding the intrusion; (3) the intruder's motives and objectives; (4) the setting into which the intrusion occurs; and (5) the expectations of those whose privacy is invaded." (Sanchez-Scott v. Alza Pharmaceuticals, supra,HYPERLINK "" 86 Cal.App.4th at p. 377, citations omitted.)

Nunez had an objectively reasonable expectation that, by staying inside her home, she would find solitude and avoid the eyes and ears of private investigators. Her evidence--the pretext telephone calls, pretext door knocks, and incidents of climbing the backyard fence--creates a triable issue as to whether the Melgar defendants " 'intru[ded] into a private place.' " (Sanchez-Scott v. Alza Pharmaceuticals, supra,HYPERLINK "" 86 Cal.App.4th at p. 372.)

The evidence also creates a triable issue as to whether the intrusion was accomplished in a manner that would be highly offensive to a reasonable person. The sheer number of pretext telephone calls--20 to 25 per day according to Kelvin--was extreme by any definition. The length of the investigation--at least 21 months according to the investigators' written reports--seems excessive. The incidents of climbing the backyard fence were understandably upsetting, as was the surveillance of Nunez's children as they drove their vehicles away from home. And although employers and insurance companies need appropriate tools to investigate possibly fraudulent workers' compensation claims, that goal cannot legitimize the manner in which the surveillance in this case appears to have been conducted.

C. Civil Code Section 1708.8

Nunez's third and final cause of action is based on section 1708.8 of the Civil Code (section 1708.8), which provides: "(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the land of another without permission or otherwise committed a trespass, in order to physically invade the privacy of the plaintiff with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity and the physical invasion occurs in a manner that is offensive to a reasonable person. [¶ ] (b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a manner that is offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of the plaintiff engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this image, sound recording, or other physical impression could not have been achieved without a trespass unless the visual or auditory enhancing device was used."

*10 "[P]ersonal and familial activity" includes "intimate details of the plaintiff's personal life, interactions with the plaintiff's family or significant others, or other aspects of plaintiff's private affairs or concerns." (§ 1708.8, subd. (k).)

Nunez submitted sufficient evidence to preclude summary judgment on this claim, namely, on several occasions, an investigator with a camera was seen climbing the backyard fence or peering over the fence with a camera. Nunez had a reasonable expectation of privacy in the personal and familial activities that took place inside the fence. For instance, on one occasion, an investigator observed Nunez in the backyard playing with a dog and a cat. But the fence, which was six feet tall and made of metal and plywood, was there for a reason: to provide privacy. Only by climbing it could an investigator take pictures. The evidence shows that the investigators did so. A jury could find such conduct to be offensive.

Defendants argue that they are not liable under section 1708.8 for several reasons. None of them has merit.

First, they contend that no pictures were actually taken. But that is beside the point. The statute requires only that the violator have an intent to take a picture. And the investigators who kept climbing the fence had a camera.

Second, defendants state that summary judgment was proper because Nunez provided factually devoid answers in response to their contention interrogatories. (See Union Bank v. Superior CourtHYPERLINK "" (1995) 31 Cal.App.4th 573, 580-590.) Yet, defendants provide no analysis to support this statement. They simply offer it up an ipse dixit. None of the interrogatories and corresponding answers is described, even in summary form. We will not consider such inadequately developed arguments. (See Landry v. Berryessa Union School Dist.HYPERLINK "" (1995) 39 Cal.App.4th 691, 699-700; Dills v. Redwoods Associates, Ltd.HYPERLINK "" (1994) 28 Cal.App.4th 888, 890, fn. 1.) Further, we note, as an example, that in response to an interrogatory that sought all facts supporting the section 1708.8 claim, Nunez provided nearly one double-spaced page of facts.

Third, defendants assert that the legislative history of section 1708.8 compels the conclusion that Nunez's claim is without merit as a matter of law. They point out that the statute was passed because of concerns about paparazzi-type conduct that resulted in the death of Princess Diana. (See Note, Warning: Wearing Eyeglasses May Subject You to Additional Liability and Other Foibles of Post-Diana Newsgathering--An Analysis of California's Civil Code Section 1708.8HYPERLINK "" (2000) 10 Fordham Intell. Prop. Media & Ent. L.J. 697, 698- 702.) Further, a legislative committee report indicates that the statute was not intended to prevent the investigation of possibly fraudulent workers' compensation claims. (See Assem. Com. on Judiciary Analysis of Sen. Bill No. 262 (1997-1998 Reg. Sess.) as amended July 23, 1998, p. 4.) But because the language of section 1708.8 is clear and unambiguous, we apply the statute in accordance with its plain meaning and do not resort to legislative history. (See Bodell Construction Co. v. Trustees of Cal. State UniversityHYPERLINK "" (1998) 62 Cal.App.4th 1508, 1515-1516.) And the legislative history is not at odds with the statutory language in any event.

*11 Finally, defendants state that, as provided by section 1708.8, "[p]ersonal and familial activity does not include illegal or otherwise criminal activity as delineated in subdivision (f)." (§ 1708.8, subd. (k).) Subdivision (f), in turn, provides that section 1708.8 does not preclude a private agency or entity from investigating a "suspected fraudulent insurance claim" where the investigation is "supported by an articulable suspicion."

But defendants have not presented adequate evidence that would support an "articulable suspicion" Nunez was engaged in illegal or criminal activity or that her worker's compensation claim might have been fraudulent. As noted, before defendants commenced their investigation, two agreed medical examiners-- chosen by Argonaut and Nunez--concluded that she was disabled.

Defendants' reliance on the "fraud defense" rests entirely on Argonaut's answer to one of Nunez's interrogatories, as follows: "Argonaut hired Melgar Investigations to investigate ... an allegedly fraudulent workers' compensation claim." This discovery response does not constitute evidence of an articulable suspicion of fraudulent, illegal, or otherwise criminal activity. It is devoid of any supporting information. Thus, the exceptions to liability in subdivisions (f) and (k) do not apply on the record before us.

D. Statutes Regarding Fraudulent Insurance Claims

By statute, an investigator may conduct a "pretext interview" to "obtain information from a person ... for the purpose of investigating a claim where there is a reasonable basis for suspecting ... fraud ... in connection with a claim." (Ins .Code, § 791.03.)

A " 'pretext interview' " is "an interview whereby a person, in an attempt to obtain information about a natural person, performs one or more of the following acts: [¶ ] (1) Pretends to be someone he or she is not. [¶ ] (2) Pretends to represent a person he or she is not in fact representing. [¶ ] (3) Misrepresents the true purpose of the interview. [¶ ] (4) Refuses to identify himself or herself upon request." (Ins.Code, § 791.02, subd. (u).)

In addition, the Legislature has declared that "[w]orkers' compensation fraud harms employers by contributing to the increasingly high cost of workers' compensation insurance and self-insurance and harms employees by undermining the perceived legitimacy of all workers' compensation claims. [¶ ] ... Prevention of workers' compensation insurance fraud may reduce the number of workers' compensation claims and claim payments thereby producing a commensurate reduction in workers' compensation costs. Prevention of workers' compensation insurance fraud will assist in restoring confidence and faith in the workers' compensation system, and will facilitate expedient and full compensation for employees injured at the workplace." (Ins.Code, § 1871, subds.(d), (e).)

Defendants rely on these statutes for the proposition that their conduct was privileged and thus not actionable. Yet, it is unclear how defendants seek to apply the term "pretext interview." Do they contend that a pretext telephone call is a pretext interview? If so, do they contend that the statute permits 20 to 25 calls per day, some early in the morning and others late at night, over an extended period of time? We need not resolve these questions because a pretext interview is permitted only "where there is a reasonable basis for suspecting ... fraud ... in connection with a claim." (Ins.Code, § 791.03.) As stated, defendants have not offered adequate evidence to show a reasonable basis for suspecting that Nunez's claim might have been fraudulent.

E. Punitive Damages

*12 Defendants successfully sought summary adjudication of Nunez's request for punitive damages on the ground that none of her causes of action had merit. Given our disposition, the request for punitive damages should remain in the action.

III

DISPOSITION

The judgment is reversed. Appellant is entitled to costs on appeal.

We concur: SPENCER, P.J., and ORTEGA, J.

2004 WL 1926794 (Cal.App. 2 Dist.), 69 Cal. Comp. Cases 1133 Not Officially Published, (Cal. Rules of Court, Rules 976, 977)

Briefs and Other Related Documents (Back to top)

•2004 WL 485978 (Appellate Brief) Respondents' Brief (Jan. 05, 2004)Original Image of this Document with Appendix (PDF)

•(Appellate Brief) Appellant's Opening Brief (Aug. 27, 2003)Original Image of this Document (PDF)

•B162945 (Docket) (Nov. 06, 2002)

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