The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Doc. # 80] and SETTING PRETRIAL CONFERENCE DATE
This action arises from Plaintiff Vera's allegation that Defendants O'Keefe and Giles secretly videotaped and recorded him at his place of work. On July 8, 2010, Plaintiff filed a complaint ("Complaint") in the United States District Court of the Southern District of California, alleging that Defendants violated the Invasion of Privacy Act, California Penal Code § 630, et seq. Although Defendant Giles is no longer a party to this action, [Doc. # 93.], Defendant O'Keefe joined in her motion for summary judgment on the Complaint. [Doc. # 80.] The motion has been fully briefed. [Doc. # 86.]
For the following reasons, the Court DENIES Defendant's motion for summary judgment.
Plaintiff was an employee for ACORN in their National City, California office. (Complaint ¶ 9.) ACORN was a community service organization that offered free services to the public.*fn1 (See Vera Dep., Vol. I at 173:9-21.) Defendants hold themselves out as investigative journalists and took on an assignment to record stories on ACORN offices in California. (O'Keefe Dep. 73:2-10, 75:2-24.) Defendant O'Keefe testified that he recorded investigative videos without obtaining permission from the person being recorded. (Id. at 39:9-21.)
On August 18, 2009, Defendants walked into the ACORN office under the pretense that they wanted ACORN's assistance in obtaining a loan for a house. (Vera Dep., Vol. Iat 61:1-62:14.) Defendant O'Keefe was wearing a hidden recording device on his tie and also used his cell phone to record the audio when he walked into the ACORN office. (O'Keefe Dep. 90:5-14; Complaint ¶ 11.) There were two other men in the office at that time: a man seeking ACORN services, and David Lagstein, Plaintiff's supervisor. (Id. at 68:8-25.) Plaintiff was speaking to the client at the time Defendants entered and he asked Defendants to wait outside his office so he could finish his conversation with the client, who left afterwards. (Vera Dep., Vol. I at 83:7-13.) The parties engaged in a conversation, with most of it taking place in Plaintiff's office. (See Video 20:17:20-20:47:47.) Defendants told Plaintiff that they intended to fill the house with underage girls working as prostitutes. (Transcript 10:13-20.) Additionally, they told Plaintiff that they needed help filling out tax forms so the income from this illegal operation would appear legitimate. (Vera Dep., Vol. I at 108:12-113:21.) At one point in the conversation, Defendants asked Plaintiff whether the conversation was confidential and Plaintiff assured them that it was. (Transcript 6:21-7:3; Complaint ¶ 14.) As the conversation progressed, the parties discussed the possibility of Plaintiff helping Defendants smuggle the underage girls into the country to be used as prostitutes. (Transcript at 114:20-128:13.)
Defendants left the ACORN office after approximately forty minutes. (Def.'s Motion 5:8.) Defendant Giles returned to the office to retrieve her sunglasses and resumed the conversation with Plaintiff in the hallway. (Vera Dep., Vol. I. at 101:9-21.) Soon after the incident, Plaintiff contacted his cousin, a detective with the National City Police Department, to report Defendants' illegal plan. (Id. at 136:6-12; 137:7-18.) Plaintiff's cousin forwarded the report to San Diego Police Department. (Id.)
On September 9, 2009, Defendants released an edited videotape of the conversation they had with Plaintiff on the Internet. (Def.'s Motion 6:24-25; 7:7-10.) Realizing Defendants' act was a charade, Plaintiff told his cousin to disregard his earlier report regarding Defendants' illegal plan. (Vera Dep., Vol. II at 221:10-224:9.) The edited video depicted Plaintiff as conspiring to promote an underage prostitution business by agreeing to help Defendants file fraudulent tax forms and smuggle underage girls from Mexico. In addition, Defendant O'Keefe was seen in the edited video wearing his grandmother's chinchilla coat, his grandfather's "pimp hat", and a cane from the Dollar Store. (O'Keefe Dep. 108:3-5, 110:5-13, 110:14-23.)
On September 17, 2009, Defendants' recording with Plaintiff was publicly broadcasted for the first time. (Vera Dep., Vol. I at 187:7-13.) Later that day, Plaintiff and Lagstein appeared at a press conference, where Lagstein defended Plaintiff's conduct with regard to the video. (Lagstein Dep. 49:18-22.) After additional segments of the video came out, Lagstein retracted his earlier support for Plaintiff. He released a press statement stating that "[a]fter release of the second San Diego video by unscrupulous partisan videographers, we have reevaluated our assessment of the incident that occurred last month. . . . [and] the video reflects unacceptable conduct that contradicts the earlier statements of ACORN organizer Juan Carlos Vera." (Lagstein Dep. 75:2-8.) Plaintiff's termination memo cited "organization issues and restructuring related to illegal videotaping incident" as the reason for his termination. (Def.'s Motion 7:17-20, Ex. 6.)
Plaintiff claims that the broadcast of the video publically humiliated him and caused him physical, mental, and emotional pain and suffering. (Vera Dep., Vol. I at 180:9-181:19, 186:4-190:2.) He has since been prescribed medication by his uncle for treatment. (Id. at 189:20-190-15 Def.'s Motion Ex. 9.) Plaintiff claims that his reputation is "in the garbage" since the release of the videotape and he has been unsuccessful finding employment after the ACORN incident. (Vera Dep., Vol. I at 180:9-15; Def.'s Motion Ex. 9.)
On July 8, 2010, Plaintiff filed this action in the United States District Court, Southern District of California in San Diego, California. He alleges that Defendants illegally recorded the events that took place in the ACORN office, violating the Invasion of Privacy Act, Penal Code § et seq. (Complaint ¶ 16-20.) On May 7, 2012, Defendant moved for summary judgment, contending that he did not violate the Invasion of Privacy Act because Plaintiff did not have an objectively reasonable expectation of privacy. (Doc. #80; Def.'s Motion 9:17-13:20.)
Legal Standard for a Summary Judgment Motion
Summary judgment is appropriate under Rule 56(c) where the moving party demonstrates the absence of a genuine issue of material fact and is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material when, under the governing substantive law, it could affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Freeman v. Arpaio, 125 F.3d 732, 735 (9th Cir. 1997). A dispute about a material fact is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party seeking summary judgment always bears the initial burden of establishing the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving party can satisfy this burden in two ways: (1) by presenting evidence that negates an essential element of the nonmoving party's case; or (2) by demonstrating that the nonmoving party failed to make a showing sufficient to establish an element essential to that party's case on which that party will bear the burden of proof at trial. Id. at 322-23. "Disputes over irrelevant or ...