BILL ANALYSIS                                                                                                                                                                                                    



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          ASSEMBLY THIRD READING
          AB 2479 (Bass)
          As Amended May 11, 2010
          Majority vote 

           JUDICIARY           7-1                                         
           
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          |Ayes:|Feuer, Brownley, Evans,   |     |                          |
          |     |Jones, Monning, Nava,     |     |                          |
          |     |Skinner                   |     |                          |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |Nays:|Knight                    |     |                          |
          |     |                          |     |                          |
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           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  








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            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  








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            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  








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          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  








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          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 

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