BILL ANALYSIS AB 2479 Page 1 ASSEMBLY THIRD READING AB 2479 (Bass) As Amended May 11, 2010 Majority vote JUDICIARY 7-1 ----------------------------------------------------------------- |Ayes:|Feuer, Brownley, Evans, | | | | |Jones, Monning, Nava, | | | | |Skinner | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Knight | | | | | | | | ----------------------------------------------------------------- SUMMARY : Expands the existing statute that makes a person liable in tort for stalking to include conduct that places a person under "surveillance" and amends the existing invasion of privacy statute to include "false imprisonment," as specified. Specifically, this bill : 1)Expands liability for the tort of stalking by adding "place under surveillance" to the list of intentional patterns of conduct that constitute "stalking." Provides, consistent with what is required under the existing statute, that such surveillance would only create liability if the plaintiff could also prove that the conduct: a) placed the plaintiff in reasonable fear for his or her safety, or the safety of an immediate family member; b) was done with the intent of placing the plaintiff in such fear; and, c) that the plaintiff clearly demanded that the defendant cease the conduct and the defendant persisted in the conduct. 2)Defines "place under surveillance" to mean remaining present outside the plaintiff's school, school, place of employment, vehicle, residence, other than the residence of the defendant, or other place occupied by the plaintiff. Provides however that "place under surveillance" does not include various actions by law enforcement and private investigators, as specified. 3)Provides that a person who commits "false imprisonment" with the intent to capture any type of visual image, sound AB 2479 Page 2 recording, or other physical impression of a plaintiff is subject to liability under the civil invasion of privacy statute and, as such, liable for up to three times the amount of any general or special damages that are proximately caused by the conduct. EXISTING LAW : 1)Makes a person liable for the tort of stalking when the plaintiff proves all of the following elements of the tort: a) that the defendant engaged in a pattern of conduct with the intent to follow, alarm, or harass the plaintiff; b) that, as a result of that conduct, the plaintiff reasonably feared for his or her safety, or the safety of an immediate family member; c) that the defendant made a credible threat with the intent of placing the plaintiff in such fear, OR the defendant's conduct was in violation of a restraining order prohibiting the conduct. Provides further the plaintiff must have made a clear demand that the defendant cease the conduct and the defendant nonetheless persisted. 2)Makes a person liable for "physical invasion of privacy" for knowingly entering onto the land of another person or otherwise committing a trespass in order to physically invade the privacy of another person with the intent to capture any type of visual image, sound recording, or other physical impression of that person engaging in a personal or familial activity, and the physical invasion occurs in a manner that is offensive to a reasonable person. 3)Makes a person liable for "constructive invasion of privacy" for attempting to capture, in a manner highly offensive to a reasonable person, any type of visual image, sound recording, or other physical impression of another person engaging in a personal or familial activity under circumstances in which the plaintiff had a reasonable expectation of privacy, through the use of a visual or auditory enhancing device, regardless of whether there was a physical trespass, if the image or recording could not have been achieved without a trespass unless the visual or auditory enhancing device was used. 4)Provides that a person who commits an assault with the intent to capture any type of visual image, sound recording, or other physical impression of the plaintiff is subject to the same AB 2479 Page 3 treble damages as is a person who commits a physical or constructive invasion of privacy. FISCAL EFFECT : None COMMENTS : This author-sponsored bill seeks to strengthen California's civil anti-stalking statute by expanding the definition of stalking to include placing a person "under surveillance." The bill also amends California's civil invasion of privacy statute to impose liability for false imprisonment when committed with the intent to capture a visual image, sound recording, or other physical impression of the plaintiff. As with the author's AB 524 (Chapter 499, Statutes of 2009), this bill is primarily an effort to curb the often aggressive tactics used by paparazzi to capture images and recordings of celebrities and their families in order to satiate a public that clamors for the intimate details of the lives of Hollywood stars. According to the author, this bill will strengthen the civil anti-stalking statute so as to prevent paparazzi from loitering outside of a celebrity's home or place of work, or even outside of the schools of the celebrity's children. Existing law provides that a person is liable for the tort of stalking if that person engages in certain patterns of conduct that intentionally put another person in fear of his or her safety, or the safety of his or her immediate family. The problem with existing law, according to the author, is that the covered patterns of conduct only include one who "follows, alarms, or harasses" another person for no legitimate purpose. However, the author contends that persistently loitering outside of a person's home, school, or workplace is -- and under the law should be -- enough to create a "reasonable fear for one's safety," or the safety of one's immediate family, that the anti-stalking statute was intended to prevent. Therefore, this bill would add the words "place under surveillance" to the existing list of patterned conduct - follow, alarm, and harass - that constitutes "stalking" for purposes of the civil anti-stalking statute. Of course, the mere loitering outside of a person's home, school, or workplace would not, by itself, create liability under the statute. As is true with existing law, in order to prevail a plaintiff must not only prove that the defendant AB 2479 Page 4 engaged in the pattern of conduct; the plaintiff must also prove that the conduct had the effect of putting the plaintiff in reasonable fear AND generally that the defendant acted with the intent to place the plaintiff in fear. (This "intent" element can also be met if the defendant's conduct was in violation of a restraining order.) In addition, the plaintiff must also show that, on at least one occasion, he or she demanded that the defendant cease the pattern of conduct and the defendant persisted. Under the common law, there are four distinct categories of the tort of "invasion of privacy": 1) intrusion upon a plaintiff's seclusion or solitude; 2) public disclosure of private facts; 3) publicity that places the plaintiff in a "false light;" and, 4) appropriation of a plaintiff's likeness or image for the defendant's advantage. Generally, the tort of intrusion requires intrusion into a private place in a manner that would be highly offensive to a reasonable person. (Turnbull v. ABC, 2004 U.S. Dist. LEXIS 24351.) California has attempted to codify a combination of categories #2) and #4) - intrusion and appropriation -- generally known as the "invasion of privacy" statute. A person committing the torts of intrusion and appropriation are generally subject to treble damages and other remedies, such as disgorgement of profits and injunctive relief. However, the statute also specifies that a person who commits an "assault" while attempting to capture a visual image, sound recording, or other physical impression of the plaintiff is subject to the same damages as one who commits an invasion of privacy. This bill would provide that "false imprisonment," along with assault, would similarly be subject to the same damages as one who commits physical or constructive invasion of privacy. The bill does not define "false imprisonment," but presumably it would have the same meaning that it has at common law: that is, the intentional infliction of "confinement," with confinement defined as restricting a person to a confined physical space without any path of escape. Generally, the plaintiff must be aware that he or she is confined. This provision is apparently targeted at the practice of paparazzi encircling or otherwise confining celebrities to the point that they are denied an avenue of escape. False imprisonment is not generally considered a form of "invasion of privacy," though, like AB 2479 Page 5 invasion of privacy, it is an intentional tort that is actionable in its own right. Incorporating these independent torts into the codification of the "invasion of privacy" tort conflates what are in fact distinct torts, which makes its placement in this statute potentially confusing. However, the rationale for adding "false imprisonment" to the invasion of privacy statute is apparently the same as the justification for adding "assault" to this same statute in 2005: so that the plaintiff bringing a civil action for assault or false imprisonment will be entitled to the treble damages provided for in the invasion of privacy statute. Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334 FN: 0004264