BILL ANALYSIS
AB 2479
Page 1
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
FN: 0004264