The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING MOTIONS FOR JUDGMENT ON THE PLEADINGS [doc. nos. 16, 22]
Juan Carlos Vera filed this civil action on July 8, 2010, alleging defendants James O'Keefe, III and Hanna Giles violated California Penal Code §632. Both defendants filed answers and have now filed separate motions for judgment on the pleadings that have been fully briefed. Oral argument was held on April 28, 2011. For the reasons set forth below, defendants' motions will be denied.
Plaintiff was employed by ACORN (Association of Community Organizations for Reform Now), in its National City, California office. On August 18, 2009, defendants O'Keefe and Giles visited the ACORN office. In his complaint, plaintiff alleges that O'Keefe and Giles conspired to secretly video and audio tape Vera at the ACORN office. O'Keefe and Giles are alleged to have asked Vera if their conversation would be confidential and Vera indicated that it would be.
The sole cause of action alleged against both defendants is violation of California Invasion of Privacy Act, Penal Code § 632 (emphasis added), eavesdropping on or recording confidential communications:
(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. . . .
(c) The term "confidential communication" includes 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 a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.
California Penal Code § 637.2 provides for a civil action when a person has been injured because of a violation of § 632:
(a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:
(1) Five thousand dollars ($5,000).
(2) Three times the amount of actual damages, if any, sustained by the plaintiff. . . .
(c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages. "An actionable violation of section 632 occurs the moment the surreptitious recording is made, whether it is disclosed or not." Lieberman v. KCOP Television, Inc., 110 Cal. App.4th 156, 166 (Cal. Ct. App. 2003) (citing Friddle v. Epstein, 16 Cal. App. 4th 1649, 1660-1661 (1993).
Legal Standard for Motions for Judgment on the Pleadings Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed -- but early enough not to delay trial -- a party may move for judgment on the pleadings." A motion for judgment on the pleadings must be evaluated under the same standard applicable to motions to dismiss brought under Rule 12(b)(6). See Enron Oil & Trans. Co. v. Walbrook Ins. Co., Ltd., 132 F.3d 526, 529 (9th Cir.1997). Thus, the standard articulated in Ashcroft v. Iqbal 129 S. Ct 1937, 1949 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)applies to a motion for judgment on the pleadings. Lowden v. T-Mobile USA, Inc., 378 Fed. Appx. 693, 2010 WL 1841891 at *1 (9th Cir., May 10, 2010) ("To survive a Federal Rule of Civil Procedure 12(c) motion, a plaintiff must allege 'enough facts to state a claim to relief that is plausible on its face'" (quoting Twombly, 550 U.S. at 544)). When deciding a motion for judgment on the pleadings, the Court assumes the allegations in the complaint are true and construes them in the light most favorable to the plaintiff. Pillsbury, Madison & Sutro v. Lerner, 31 F.3d 924, 928 (9th Cir. 1994). A judgment on the pleadings is appropriate when, even if all the allegations in the complaint are true, the moving party is entitled to judgment as a matter of law. Milne ex rel. Coyne v. Stephen Slesinger, Inc., 430 F.3d 1036, 1042 (9th Cir. 2005).
Defendant Giles's Motion for Judgment on the Pleadings
In seeking judgment on the pleadings, defendant Giles contends that because the complaint alleges that "O'Keefe was wearing a hidden camera and recorded audio and video of the visit," she cannot be liable under § 632. Giles asserts that liability for § 632 is limited to the person who physically carries out the recording of the confidential communication and merely encouraging or going along with the recording or later using or disclosing the recorded confidential communication does not impose liability.
Similarly, Giles contends that even if plaintiff has stated a claim for violation of § 632 again her, § 637.2 only provides a right to recover damages against O'Keefe because he is the "person who committed the violation" by making the recording. Thus, Giles contends "[s]section 632 only punishes the "person who . . . records . . . the confidential communication." (Memo ISO Giles's Motion at 7.)*fn1
Vera argues, however, that under California law, criminal liability is coextensive with civil liability. As a result, California Penal Code § 31, which defines ...