Safari Club v. Dr. Lawrence Rudolph, 1/18/17, 9C
For 25 years Rudolph had been a member, and sometime president, of Safari Club, a hunting organization with 50,000 members. In 2012, Safari expelled him based on accusations of ethical violations. Rudolph sued Safari and its president, Whipple. Later, he lured Whipple to lunch and secretly recorded the conversation, which was later published on YouTube for the benefit of Safari’s members. Relying in part on Penal Code 632 (consent required by all participants to a confidential communication), Whipple sued Rudolph for claims related to invasion of privacy. Rudolph filed an anti-SLAPP motion, and the trial court granted his motion to four of Whipple’s seven claims. Rudolph appealed the denial of his motion to the remaining claims. Held: Affirmed.
California’s anti-SLAPP statute (CCP 425.16) requires an early dismissal of cases where defendant can demonstrate that the conduct giving rise to the lawsuit is protected by the statute (e.g., free speech, right to petition etc.), unless plaintiff can then show he has a reasonable probability of prevailing. That burden equates to a showing of minimal merit sufficient to overcome a non-suit or directed verdict motion.
Here, the conduct in question is the secret recording of a lunch conversation. PC 632 forbids recording a confidential communication without the other’s consent. The court held that Rudolph’s conduct was protected by 425.16(e)(4), which protects conduct in furtherance of free speech in connection with a public issue. The court analogized Rudolph’s conduct to undercover newsgathering. The court rejected Whipple’s argument that violating PC 632 cannot be protected conduct – That issue presents a question of fact because Rudolph claimed that the conversation was not a confidential because it occurred in a public place.
Moreover, the public issue test was also met because the issue pertained to an organization with a large membership, and included various claims of governance abuse and the waste of resources.
At the same time, Whipple met his burden under the merits prong. Rudolph said the conversation took place in a public place, nixing any claim to confidential communication or privacy. But such communications can still be confidential, depending on the facts. Whipple had testified that they kept their voices down and stopped talking when anyone approached their table. So, another question of fact for the jury.
Footnote: Whipple has died and a family member is now pursuing these claims as his successor. But claims for wrongs to the person aren’t assignable, emotional distress damages are no longer recoverable, and, as the court noted, there are questions about whether his widow has standing to pursue these claims in federal court. And Whipple won’t be there as a witness. This case could be a train wreck, and it looks like a good time to end the case.