California Court of Appeal, Fourth District, First Division
David W. FAUNCE, Plaintiff and Appellant,
Matthew CATE et al., Defendants and Respondents.
APPEAL from an order and judgment of the Superior Court of San Diego County, Randa Trapp, Judge. Judgment affirmed and appeal of order dismissed. (Super.Ct. No. 37-2011-00092986-CU-DF-CTL)
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David W. Faunce, in pro. per., for Plaintiff and Appellant.
Kamala D. Harris, Attorney General, Jonathan L. Wolff, Assistant Attorney General, Thomas S. Patterson and Christopher H. Findley, Deputy Attorneys General, for Defendants and Respondent.
Penal Code section 636 makes it a crime to eavesdrop on a prisoner's conversation with certain individuals in situations where the prisoner has a reasonable expectation of privacy. (Undesignated statutory references are to the Penal Code.) In this case, we conclude that David Faunce, a prisoner appearing in propria persona, failed to allege facts showing he had a reasonable expectation of privacy. Accordingly, we affirm the judgment dismissing his complaint. We also dismiss Faunce's appeal from an order denying his request for a preliminary injunction.
FACTUAL AND PROCEDURAL BACKGROUND
Faunce, a prisoner at R.J. Donovan Correctional Facility, sued defendants Matthew Cate, George Neotti, M. Glynn, D. Strayhorn, A. Canlas, M. Walker and M. Akbari (collectively defendants) and moved for a preliminary injunction. In response to defendants' demurrer, Faunce filed a first amended complaint. The trial court denied Faunce's request for a preliminary injunction and later granted him leave to file an amended complaint " to cure the pleading defects raised by defendants." Faunce filed a second amended complaint (the operative complaint), which included for the first time, a claim for retaliation.
The trial court sustained defendants' demurrer to the operative complaint without leave to amend. The court concluded that Faunce's claims for violating section 636 and the privacy provisions of the California Constitution failed because Faunce did not plead a reasonable expectation of privacy. The court also concluded that Faunce failed to plead outrageous conduct necessary to support a cause of action for intentional infliction of emotional distress, that he failed to plead an underlying wrong to support his conspiracy claim and that his [166 Cal.Rptr.3d 64] request for declaratory and injunctive relief failed with their supporting causes of action. Finally, it ruled that Faunce's retaliation claim exceeded the bounds of its amendment order and, on the merits, that Faunce had not pleaded exhaustion of administrative remedies. Faunce appealed from the ...