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Hernandez v. Hillsides

August 3, 2009


Los Angeles County Super. Ct. No. GC032633, Judge: C. Edward Simpson.

The opinion of the court was delivered by: Baxter, J.

Defendants Hillsides, Inc., and Hillsides Children Center, Inc. (Hillsides) operated a private nonprofit residential facility for neglected and abused children, including the victims of sexual abuse. Plaintiffs Abigail Hernandez (Hernandez) and Maria-Jose Lopez (Lopez) were employed by Hillsides. They shared an enclosed office and performed clerical work during daytime business hours. Defendant John M. Hitchcock (Hitchcock), the director of the facility, learned that late at night, after plaintiffs had left the premises, an unknown person had repeatedly used a computer in plaintiffs‟ office to access the Internet and view pornographic Web sites. Such use conflicted with company policy and with Hillsides‟ aim of providing a safe haven for the children.

Concerned that the culprit might be a staff member who worked with the children, and without notifying plaintiffs, Hitchcock set up a hidden camera in their office. The camera could be made operable from a remote location, at any time of day or night, to permit either live viewing or videotaping of activities around the targeted workstation. It is undisputed that the camera was not operated for either of these purposes during business hours, and, as a consequence, that plaintiffs‟ activities in the office were not viewed or recorded by means of the surveillance system. Hitchcock did not expect or intend to catch plaintiffs on tape.

Nonetheless, after discovering the hidden camera in their office, plaintiffs filed this tort action alleging, among other things, that defendants intruded into a protected place, interest, or matter, and violated their right to privacy under both the common law and the state Constitution. The trial court granted defendants‟ motion for summary judgment and dismissed the case. The Court of Appeal reversed, finding triable issues that plaintiffs had suffered (1) an intrusion into a protected zone of privacy that (2) was so unjustified and offensive as to constitute a privacy violation.

Defendants argue here, as below, that, absent evidence they targeted and either viewed or recorded plaintiffs as part of the surveillance scheme, there could be, as a matter of law, no actionable invasion of privacy on an intrusion theory. Hence, they insist, the Court of Appeal erred in reinstating that claim.

We agree with defendants that the trial court properly granted their motion for summary judgment. However, we reach this conclusion for reasons more varied and nuanced than those offered by defendants.

On the one hand, the Court of Appeal did not err in determining that a jury could find the requisite intrusion. While plaintiffs‟ privacy interests in a shared office at work were far from absolute, they had a reasonable expectation under widely held social norms that their employer would not install video equipment capable of monitoring and recording their activities - personal and work related - behind closed doors without their knowledge or consent.

On the other hand, the Court of Appeal erroneously found a triable issue as to whether such intrusion was highly offensive and sufficiently serious to constitute a privacy violation. Any actual surveillance was drastically limited in nature and scope, exempting plaintiffs from its reach. Defendants also were motivated by strong countervailing concerns. We therefore will reverse the Court of Appeal‟s judgment insofar as it allowed the privacy claim to proceed to trial.


In September 2003, plaintiffs Hernandez and Lopez filed this suit against defendants Hillsides and Hitchcock over the use of video surveillance equipment in plaintiffs‟ office. The complaint set forth three related causes of action in tort, and sought compensatory and punitive damages. The first cause of action alleged an invasion of privacy, alluding to principles and authorities under both the common law (see Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 (Shulman)) and the state Constitution (see Cal. Const., art 1, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 (Hill)). The other two claims alleged intentional and negligent infliction of emotional distress.

In December 2004, after the parties engaged in discovery, defendants moved for summary judgment. The motion attached numerous supporting documents. They included the declarations of both defendant Hitchcock and Tom Foster (Foster), the computer specialist at Hillsides, and excerpts from the depositions of Hitchcock and plaintiffs Hernandez and Lopez. In opposing summary judgment, plaintiffs submitted additional excerpts from the same depositions, as well as declarations each of them had prepared. Based on these submissions, the following facts appear to be essentially undisputed.

Hillsides was established in 1913, and is affiliated with the Episcopal Church. First operated as an orphanage, Hillsides later became a residential treatment center for children, ranging in age from six to 18. At the time of the events herein, 66 boys and girls lived at its facility in Pasadena.

Typically, before entering Hillsides, the children had lived in foster homes and had been the victims of emotional, physical, and sexual abuse. Such abuse included exposure to and participation in pornography. Working in conjunction with child welfare authorities, Hillsides offered programs to assist residents with academic, psychological, and behavioral problems.

The campus consisted of 12 buildings - five that housed the children, and seven that were used for administrative, academic, and other purposes. The grounds were open to the public, but certain security measures were in place. For instance, Hillsides required employees to carry photo identification at work, and issued temporary badges to all visitors. Any visitor caught wandering on the grounds without a badge was directed or escorted to the receptionist at the main entrance of the facility. The residence halls were locked at all times. Other buildings were unlocked only during regular daytime business hours. Alarms sounded for any unauthorized entry.

In addition, security personnel, or "program directors," patrolled the premises. They worked every day, around the clock, with more of them on duty during the day than at night. The program directors also monitored televised images transmitted from four cameras stationed outside some of the buildings. These exterior cameras captured and recorded certain views of the parking lot, the administration building, and the main entrance of the facility, where visitors entered. No similar camera system was permanently installed inside any building.

Plaintiffs Hernandez and Lopez performed clerical work during daytime business hours at Hillsides. When they were hired in 1996 and 1999, respectively, they signed disclosure statements and underwent background screening procedures required by law of persons working at licensed child care facilities. This process included fingerprint and criminal record checks, and an agreement to report any child abuse witnessed or suspected while working at Hillsides.

Beginning in 2001, plaintiffs shared an office in the administrative building at Hillsides. Each woman had her own desk and computer workstation. The office had three windows on exterior walls. Blinds on the windows could be opened and closed. The office also had a door that could be closed and locked. A "doggie" door near the bottom of the office door was missing its flap, creating a small, low opening into the office. Several people, besides plaintiffs, had keys to their office: five administrators, including Hitchcock, and all of the program directors. Hernandez estimated that there were five program directors. Hitchcock counted eight of them.

According to plaintiffs, they occasionally used their office to change or adjust their clothing. Hernandez replaced her work clothes with athletic wear before leaving Hillsides to exercise at the end of the day. Two or three times, Lopez raised her shirt to show Hernandez her postpregnancy figure. Both women stated in their declarations that the blinds were drawn and the door was closed when this activity occurred. Hernandez also recalled the door being locked when she changed clothes.

On or before August 22, 2002, Hillsides circulated an "E-Mail, Voicemail and Computer Systems Policy." This document stated that it was intended to prevent employees from using Hillsides‟ electronic communications systems in a manner that defamed, harassed, or harmed others, or that subjected the company to "significant legal exposure." Illegal and inappropriate activity was prohibited, such as accessing sexually offensive Web sites or displaying, downloading, or distributing sexually explicit material. The policy further contemplated the use of electronic "[p]ersonal passwords." However, it warned employees that they had "no reasonable expectation of privacy in any... use of Company computers, network and system." Along the same lines, the policy advised that all data created, transmitted, downloaded, or stored on the system was Hillsides‟ property, and that the company could "monitor and record employee activity on its computers, network... and e-mail systems," including "e-mail messages[,]... files stored or transmitted[,] and... web sites accessed."*fn1

Plaintiffs acknowledged the existence of the foregoing policy in their depositions. Indeed, both testified that, as employees of Hillsides, they were not allowed to access pornographic Web sites from their computers at work. They indicated that such conduct would conflict with Hillsides‟ mission to provide a safe environment for the abused and vulnerable children in its care. Hernandez described such conduct as "wrong," "illegal," and "unethical." Lopez agreed with this assessment.

In order to ensure compliance with Hillsides‟ computer policy and restrictions, Foster, the computer specialist, could retrieve and print a list of all Internet Web sites accessed from every computer on the premises. The network server that recorded and stored such information could pinpoint exactly when and where such Web access had occurred. In July 2002, Foster determined that numerous pornographic Web sites had been viewed in the late-night and early-morning hours from at least two different computers. One of them was located in the computer laboratory, or classroom. The other one sat on the desk Lopez used in the office she shared with Hernandez.

The evidence indicated that Lopez‟s computer could have been accessed after hours by someone other than her, because she did not always log off before going home at night. Hitchcock explained in his deposition that employees were expected to turn off their computers when leaving work at the end of the day, that a personal password was required to log onto the computer again after it had been turned off, and that this policy was communicated orally to employees when their computers were first assigned. He admitted that he did not remind plaintiffs of this procedure before taking the surveillance steps at issue here. Nonetheless, Lopez noted in her declaration that "[o]nce [her] computer at Hillsides was turned off, it required the input of a secret password in order to be accessed again."

Foster told defendant Hitchcock about the inappropriate Internet use, and showed him printouts listing the pornographic Web sites that had been accessed. Given the odd hours at which such activity had occurred, Hitchcock surmised that the perpetrator was a program director or other staff person who had unfettered access to Hillsides in the middle of the night. Hitchcock did not blame any of the children, because they would have been under supervision and asleep in the residence halls at the time. Nor did he suspect plaintiffs. They typically were gone from the premises when the impermissible nighttime computer use occurred.

In light of these circumstances, Hitchcock decided to use video equipment Hillsides already had in its possession to record the perpetrator in the act of using the computers at night. He told other administrators about the problem and his surveillance plan. Hitchcock explained in both his deposition and declaration that he sought to protect the children from any staff person who might expose them to pornography, emphasizing the harm they had endured before entering Hillsides.*fn2

With Foster‟s assistance, Hitchcock initially installed the video equipment in the computer laboratory from which some of the pornographic Web sites had been accessed. However, because so many people used the laboratory for legitimate reasons during and after business hours, Hitchcock decided instead to conduct surveillance in the office that plaintiffs shared. He did not inform plaintiffs of this decision. He reasoned that the more people who knew and "gossiped" about the plan, the greater the chance the culprit would hear about it and never be identified or stopped.

Hence, at some point during the first week of October 2002, Hitchcock and Foster installed video recording equipment in plaintiffs‟ office and in a storage room nearby. First, in plaintiffs‟ office, they positioned a camera on the top shelf of a bookcase, among some plants, where it apparently was obscured from view. They also tucked a motion detector into the lap of a stuffed animal or toy sitting on a lower shelf of the same bookcase. Second, these devices connected remotely to a television that Hitchcock and Foster moved into the storage room. A videocassette recorder was built into the unit. The television had a 19-inch monitor on which images could be viewed.

Hitchcock explained the system‟s operation in his deposition as follows: Through wireless technology, the camera broadcast images to the television monitor, and the motion detector operated the videocassette recorder. The recorder would "run as long as there [was] motion in that room to keep it activated." Once installed in plaintiffs‟ office, both the camera and the motion detector were always plugged into the electrical system, and therefore were capable of operating "all the time." However, in order for the camera to display an image on the monitor, and for the motion detector to trigger a recording of that image, a wireless "receptive device" in the storage room needed to be plugged into - i.e., "connected" and "engaged" to - the television set. Hitchcock further testified that if these wireless receptors were unplugged, disconnected, or disengaged, then the camera and motion detector were not "activated," and nothing was displayed or recorded on the television equipment.

Hitchcock was not the only person with access to the storage room and the video surveillance equipment inside. Plaintiffs each stated in their declarations that "several supervisory employees and program directors had keys and access to that storage room." Hitchcock stated in his deposition that he knew of only two employees with keys to the storage room, Susanne Crummey and Ramona McGee, and that the location was locked and "secure." Crummey and another administrator, Stacey Brake, were the only people other than Hitchcock and Foster who knew that the video equipment in the storage room was specifically set up to monitor plaintiffs‟ office.

Hitchcock rarely activated the camera and motion detector in plaintiffs‟ office, and never did so while they were there. His deposition testimony addressed these circumstances as follows: On three occasions, Hitchcock connected the wireless receptors to the television in the storage room after plaintiffs left work for the day, and then disconnected the receptors the next morning, before plaintiffs returned to work. On one such morning, he also removed the camera from the office, and returned it later, when plaintiffs were gone for the night. In short, the camera and motion detector were always disabled during the workday, such that "there was no picture showing" and "no recording going on" while plaintiffs were in their office. Hitchcock further stated that between installation of the equipment in early October 2002, and his decision to ...

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