FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 SAFARI CLUB                                     No. 14-56236
 INTERNATIONAL; JOAN
 WHIPPLE,                                        D.C. No.
          Plaintiffs-Appellees,           8:13-cv-01989-JVS-AN

                  v.
                                           AMENDED OPINION
 DR. LAWRENCE P. RUDOLPH,
        Defendant-Appellant.


         Appeal from the United States District Court
            for the Central District of California
          James V. Selna, District Judge, Presiding

             Argued and Submitted June 10, 2016
                    Pasadena, California

                     Filed January 18, 2017
                   Amended February 10, 2017

 Before: Johnnie B. Rawlinson and Carlos T. Bea, Circuit
      Judges, and Richard Seeborg,* District Judge.

                    Opinion by Judge Seeborg


    *
      The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
2                    SAFARI CLUB V. RUDOLPH

                            SUMMARY**


                California Anti-SLAPP Statute

    The panel replaced the opinion filed on January 18, 2017
with an amended opinion, and affirmed the district court’s
order denying Dr. Lawrence Rudolph’s motion to strike
under California’s anti-SLAAP statute plaintiffs’ claims for
violation of California Penal Code section 632, negligence
per se, and common law invasion of privacy, arising after
Rudolph surreptitiously recorded a conversation with plaintiff
Safari Club International President John Whipple, and posted
it on the Internet for public consumption.

    The panel held that though Rudolph could show that
plaintiffs’ claims arose from activity Rudolph took in
furtherance of his right to free speech, plaintiffs could show
a reasonable probability of prevailing on each of the
challenged claims. The panel accordingly affirmed the
district court’s denial of Rudolph’s motion to strike under the
anti-SLAAP statute.

   Raising the issue sua sponte, the panel also held that Joan
Whipple, who substituted into the action as John Whipple’s
successor-in-interest after his death, had standing to bring a
common-law invasion of privacy claim.

    The panel denied Rudolph’s request for an additional
attorney fee award. The panel remanded for further
proceedings.

    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 SAFARI CLUB V. RUDOLPH                    3

                        COUNSEL

Kenneth M. Argentieri (argued), Duane Morris LLP,
Pittsburg, Pennsylvania; Patricia P. Hollenbeck and Heather
U. Guerena, Duane Morris LLP, San Diego, California; for
Defendant-Appellant.

Albert C. Nicholson (argued) and Vince M. Verde, Ogletree
Deakins Nash Smoak & Stewart P.C., Costa Mesa,
California; Joseph J. Nardulli, The Wolf Law Firm, Irvine,
California; for Plaintiffs-Appellees.


                        OPINION

SEEBORG, District Judge:

    Dr. Lawrence P. Rudolph is an award-winning hunter
who made his way to the top of Safari Club International
(“SCI”), a sport hunting and wildlife conservation
organization. Following his term at the helm, various SCI
members accused him of official misconduct, stripped him of
his awards, and then exiled him permanently from the
association. That’s when the season opened. Rudolph sued
SCI and its president, his friend, John Whipple, whom he
assured was named only by virtue of his position at the head
of the organization. With his quarry in sight, Rudolph lured
Whipple to lunch, brought up the pending litigation, recorded
the conversation surreptitiously, and then posted it on
YouTube for public consumption.

    Outraged, Whipple and SCI fired back at Rudolph with a
barrage of legal claims, including statutory invasion of
privacy, negligence per se, and common law invasion of
4                SAFARI CLUB V. RUDOLPH

privacy. The district court granted Rudolph’s motion to strike
under California’s anti-SLAPP statute as to four claims for
relief, but denied the motion as to these privacy claims,
finding plaintiffs had demonstrated a reasonable probability
of prevailing on the merits. On appeal, Rudolph seeks to line
up the perfect shot, arguing all three claims must fail because
there can be no objectively reasonable expectation of
confidentiality in a conversation that occurs in a public place.
Rudolph’s marksmanship, apparently on target in the tundra,
here is wide of the mark. We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.

                          I. FACTS

    Plaintiff-Appellee SCI is a hunting and wildlife
conservation organization with roughly 50,000 members and
nearly 200 chapters across twenty-six different countries.
Defendant-Appellant Rudolph has been an SCI member for
approximately twenty-five years and became a lifetime
member of the organization in 2006. The next year, Rudolph
received the “Weatherby Award,” which recognizes one
individual annually for hunting achievement, outstanding
support of conservation, and dedication to ethical sport
hunting. Rudolph has occupied a number of organizational
positions throughout his tenure with SCI, culminating in
consecutive one-year terms as President of SCI and the Safari
Club International Foundation (“SCIF”).

    Following his second year at the helm of the group,
Rudolph was hired to perform public relations as the Chief
Communications Officer of SCI. In 2012, however, a conflict
arose between Rudolph and the organization, with various
members accusing him of, among other things, adultery,
making false statements, and intellectual property
                     SAFARI CLUB V. RUDOLPH                                 5

infringement. Believing he had breached his duties of loyalty
and care to the organization, SCI terminated Rudolph’s
contract, stripped him of his awards, and expelled him from
membership. Whipple was president of SCI at the time of
Rudolph’s expulsion and signed the letter officially
terminating Rudolph’s membership.1

    1
       In November 2014, John Whipple passed away and his wife Joan
Whipple substituted into this action as his successor-in-interest. See Cal.
Civ. Proc. Code § 377.20 (providing generally for survival of causes of
action after a person’s death); 

(providing for continuation of
pending actions that survive death). She maintains his claims for
common-law invasion of privacy, invasion of privacy in violation of
California Penal Code sections 632 and 637.2, and negligence per se for
violation of a duty owed under sections 632 and 637.2. See Sullivan v.
Delta Air Lines, Inc., 

, 298–99 (1997) (recognizing
California’s survival statute covers “actions for personal torts that do not
result in physical injury,” including, among other actions, invasion of
privacy). Although the parties have not raised the issue of Joan Whipple’s
standing, we recognize a duty to examine this issue sua sponte. B.C. v.
Plumas Unified Sch. Dist., 

, 1264 (9th Cir. 1999) (citation
omitted) (“[F]ederal courts are required sua sponte to examine
jurisdictional issues such as standing.”). Plaintiff Safari Club International
has standing to bring the statutory invasion of privacy and negligence per
se claims, so we need not decide if Whipple has standing to bring those
particular claims. See Leonard v. Clark, 

, 888 (9th Cir. 1993),
as amended (Mar. 8, 1994) (citing Carey v. Population Services Int’l, 

, 682 (1977)) (“The general rule applicable to federal court suits
with multiple plaintiffs is that once the court determines that one of the
plaintiffs has standing, it need not decide the standing of the others.”). As
Safari Club does not join in Joan Whipple’s common-law invasion of
privacy claim, we must determine if she has standing to bring that claim.
We conclude that she does. See Moreland v. Las Vegas Metro. Police
Dep’t, 

, 369 (9th Cir. 1998), as amended (Nov. 24, 1998)
(recognizing that a “party seeking to bring a survival action” will have
standing where she carries her “burden of demonstrating that a particular
state’s law authorizes a survival action and that the plaintiff meets that
state’s requirements for bringing a survival action”); cf. Vermont Agency
of Nat. Res. v. U.S. ex rel. Stevens, 

, 773–74 (2000) (holding
6                    SAFARI CLUB V. RUDOLPH

    Stung and defiant, Rudolph sued SCI and several of its
board members, including Whipple, in November 2012 in the
U.S. District Court for the Western District of Pennsylvania.
The court dismissed the individual defendants on
jurisdictional grounds and Rudolph thereupon refiled the
lawsuit against the same individuals in the U.S. District Court
for the District of Wyoming. These actions center on
Rudolph’s claims that SCI members defamed him
maliciously in order to ruin his reputation and ultimately to
run him out of the organization.

     On February 20, 2013, while Whipple was a defendant in
the Pennsylvania action, Rudolph invited him to meet for
lunch at a restaurant in Los Angeles. At that time, Whipple
still considered Rudolph a good friend, and believed Rudolph
felt the same way. Indeed, Whipple recalled Rudolph as
saying he sued him in Pennsylvania only because he was the
current president of SCI. In any event, Whipple said yes and
they met at his residence before departing for Wineworks for
Everyone, a wine store and restaurant that is open to the
general public.

    Rudolph and Whipple met over lunch for approximately
five hours. There were several other patrons and employees
in the restaurant at the time the meeting took place. Whipple
offered his own declaration in which he stated that those other
patrons in the room were not within earshot of their


a qui tam plaintiff had Article III standing to maintain an action because
“the assignee of a claim has standing to assert the injury in fact suffered
by the assignor”). Because Joan Whipple’s claims are proper under
California law, see Cal. Civ. Proc. Code §§ 377.20, 377.21; 

–99, she has standing to assert them before the district
court, see 

.
                 SAFARI CLUB V. RUDOLPH                     7

conversation. He also claimed he and Rudolph kept their
voices fairly low, and that when servers approached, they
stopped talking about anything substantive. Rudolph, by
contrast, insists his recordings demonstrate that the other
patrons were close enough to overhear their conversation, and
that staff and other patrons repeatedly walked past the table
throughout the meeting. Rudolph further claims Whipple
never lowered his voice overtly or manifested body language
that in any way would suggest he was attempting to maintain
privacy or intended to keep the conversation confidential.

     Rudolph eventually steered the discussion to the ongoing
litigation between himself, Whipple, and SCI. They talked
about Whipple’s role in the underlying events and the
conduct of various SCI board members. Unbeknownst to
Whipple, Rudolph recorded both audio and video of the entire
conversation (“Whipple Video”), which he later reduced into
a film for public dissemination called: Rudolph v. Safari Club
International SCI President Tells the Truth on Video Rudolph
Exonerated!! (“Rudolph Video”). The Rudolph Video
allegedly contains clips confirming the allegations against
Rudolph were false and malicious. Importantly, Rudolph
never asked for, nor obtained, Whipple’s consent to record
the conversation, and Whipple maintained he never would
have given Rudolph his consent.

    Later that year, SCI and Whipple brought suit in the
Orange County Superior Court alleging Rudolph violated
section 632 of the California Penal Code, outlawing the
recording of a “confidential communication” without the
consent of all parties to the communication. See Cal. Penal
Code § 632. Plaintiffs sought to enjoin Rudolph from
introducing the Whipple Video into evidence in the
Pennsylvania and Wyoming actions, and the state court
8                 SAFARI CLUB V. RUDOLPH

issued a temporary restraining order (“TRO”) on December
20, 2013. Following removal of the action to the district
court and a hearing, the district court denied plaintiffs’
request for a preliminary injunction. The denial was affirmed
by this Court on December 26, 2014.

    The TRO soon dissolved and Rudolph posted both videos
on YouTube for public viewing, with SCI members being the
target audience.2 Rudolph claims he created the videos for
use in his litigation against SCI and various SCI board
members, to inform SCI members about the details of the
actions, to repair his reputation, and to stop those in power at
SCI from wasting SCI’s resources.

    Plaintiffs filed a First Amended Verified Complaint
(“FAC”) soon after the videos were posted, this time asserting
seven claims for relief: (1) statutory invasion of privacy, Cal.
Penal Code §§ 632, 637.2; (2) injunctive relief;
(3) negligence per se; (4) common law invasion of privacy;
(5) false light invasion of privacy; (6) intentional infliction of
emotional distress; and (7) negligent infliction of emotional
distress.




    2
         The Whipple video is publicly available at:
https://www.youtube.com/watch?v=dU7MoWhzIJs. The Rudolph video
(an edited version of the Whipple video, which Rudolph titled,
“Rudolph v. Safari Club International SCI President Tells the Truth
on Video Rudolph Exonerated!!”) is publicly available at:
https://www.youtube.com/watch?v=2aYY0YF4ktA.
                     SAFARI CLUB V. RUDOLPH                                9

    On March 13, 2014, Rudolph moved to strike the FAC
pursuant to California’s “anti-SLAPP”3 statute, see Cal. Civ.
Proc. Code § 425.16, and concurrently moved to dismiss.
Plaintiffs opposed the motions by relying only on the verified
FAC, as opposed to invoking any other evidence in the
record.

    The district court, however, looked to the entire record,
including a declaration submitted by Whipple with his ex
parte application for a TRO, which also appeared as an
attachment to the notice of removal. It then granted in part
and denied in part Rudolph’s motion to strike. Rudolph
moved to reconsider on the ground the court denied him due
process by unilaterally scouring the record, digging up the
declaration, and relying on it to decide his motions. Granting
the motion to reconsider, the district court then proceeded to
reaffirm its prior order, finding the Whipple declaration
properly had been considered.

    On July 29, 2014, Rudolph timely appealed from that
portion of the district court’s June 2, 2014, order which
denied Rudolph’s motion to strike. Rudolph maintains the
court erred in denying the motion on the three remaining
claims: (1) statutory invasion of privacy, Cal. Penal Code
§§ 632, 637.2; (2) negligence per se; and (3) common law
invasion of privacy.



    3
      California law provides for the pre-trial dismissal of certain actions,
known as Strategic Lawsuits Against Public Participation, or SLAPPs, that
“masquerade as ordinary lawsuits,” Wilcox v. Superior Court, 27 Cal.
App. 4th 809, 816 (1994), but are intended to deter individuals “from
exercising their political or legal rights or to punish them for doing so[,]”
Batzel v. Smith, 

, 1024 (9th Cir. 2003).
10                SAFARI CLUB V. RUDOLPH

               II. STANDARD OF REVIEW

    This Court reviews the district court’s denial of a special
motion to strike de novo. See Graham-Sult v. Clainos,

, 735 (9th Cir. 2014); Martinez v. Metabolife
Int’l Inc., 

, 186 (2003).

                      III. DISCUSSION

    California’s anti-SLAPP statute authorizes a “special
motion to strike” any “cause of action against a person arising
from any act of that person in furtherance of the person’s
right of petition or free speech . . . in connection with a public
issue.” Cal. Civ. Proc. Code § 425.16(b)(1). Courts
evaluating anti-SLAPP motions first ask if the defendant has
shown the challenged cause of action “aris[es] from” activity
taken “in furtherance” of the defendant’s right to petition or
free speech. 

the burden shifts to the plaintiff to
show “a [reasonable] probability of prevailing on the
challenged claims.” Mindys Cosmetics, Inc. v. Dakar,

, 595 (9th Cir. 2010).

     Here, Rudolph maintains the court should have stricken
the statutory invasion of privacy claim, the negligence per se
claim tied to that cause of action, and the common law
invasion of privacy claim. Though Rudolph can show the
claims arise from activity he took in furtherance of his right
to free speech, plaintiffs can show a reasonable probability of
prevailing on the challenged claims. Accordingly, the district
court did not err in denying in part Rudolph’s special motion
to strike.
                  SAFARI CLUB V. RUDOLPH                      11

    A. “Arising from” Protected Activity

    Rudolph’s first task is to make a prima facie showing that
each cause of action against him “aris[es] from” activity he
took “in furtherance” of his right to petition or free speech.
Cal. Civ. Proc. Code § 425.16(b)(1). “[T]he critical
consideration is whether the cause of action is based on the
defendant’s protected” conduct. 

(quoting Navellier v. Sletten, 

, 89 (2002)).
Specifically, “‘the act underlying the plaintiff’s cause’ or ‘the
act which forms the basis for the plaintiff’s cause of action’
must itself have been an act in furtherance of the right of
petition or free speech.” Equilon Enters. v. Consumer Cause,
Inc., 

, 66 (2002) (quoting ComputerXpress, Inc.
v. Jackson, 

, 1003 (2001)).

        1. The Conduct Underlying Each Claim.

    Here, the critical act underlying each claim is Rudolph’s
recording of his conversation with Whipple. This follows
from a quick explanation of the elements of each claim.

    The first claim asserts a violation of Section 632 of the
California Penal Code. That provision bars the recording of
a “confidential communication” without the consent of all
parties to the communication. See Cal. Penal Code § 632(a).
A communication is confidential if it is “carried on in
circumstances as may reasonably indicate that any party to
the communication desires it to be confined to the parties
thereto.” 

The statute excludes, however, “a
communication made in a public gathering . . . or in any other
circumstance in which the parties to the communication may
reasonably expect that the communication may be overheard
or recorded.” 

parties dispute whether the
12               SAFARI CLUB V. RUDOLPH

restaurant conversation can be categorized as a confidential
communication, there is little doubt the precise act at the
heart of this claim is Rudolph’s making of the surreptitious
recording.

    Plaintiffs next assert a claim for negligence per se, which
requires showing: (1) a defendant violated a statute,
ordinance, or regulation; (2) the violation proximately caused
injury; (3) the injury resulted from an occurrence the
enactment was designed to prevent; and (4) the plaintiff was
a member of the class of persons the statute was intended to
protect. Ramirez v. Nelson, 

, 917–18 (2008).
The statute plaintiffs invoke is section 632 of the California
Penal Code, therefore tying this cause of action to the
surreptitious recording mentioned above.

     The final claim asserts an invasion of privacy under
California common law, which requires “(1) intrusion into a
private place, conversation[,] or matter, (2) in a manner
highly offensive to a reasonable person.” Shulman v. Grp. W.
Prods., Inc., 

, 231 (1998). Once again, the act
plaintiffs invoke as an intrusion is Rudolph’s recording of the
discussion with Whipple. In sum, the act of making the
recording without Whipple’s knowledge or consent underlies
all three claims in this case.

       2. Rudolph’s Conduct Furthered the Exercise of
          Free Speech

    The next question is whether Rudolph’s conduct was
taken “in furtherance” of protected activity. The anti-SLAPP
statute expressly recognizes four categories of protected
speech and petitioning, three of which are implicated here:
“any written or oral statement or writing made in connection
                    SAFARI CLUB V. RUDOLPH                             13

with an issue under consideration . . . [by a] judicial body,”
Cal. Civ. Proc. Code § 425.16(e)(2), “any written or oral
statement or writing made in a place open to the public or a
public forum in connection with an issue of public interest,”

and “any other conduct in furtherance of
the exercise of the constitutional right of petition or the
constitutional right of free speech in connection with a public
issue or an issue of public interest,” 

Rudolph need only show the conduct underlying each claim
falls within one protected category. Rudolph’s making of the
surreptitious recording falls within section 425.16(e)(4).4

    To start, that section does not require a “statement” by
Rudolph; rather, it protects “conduct” in furtherance of the
right of free speech in connection with a public issue. Next,
California authority suggests Rudolph’s creation of the
recording was an act in furtherance of the exercise of free
speech. In Lieberman v. KCOP Television, Inc., 110 Cal.
App. 4th 156 (2003), two reporters met a doctor at his clinic
and secretly recorded their private consultations on audio and
videotape. 

Portions of the tapes were later
broadcast in a segment called “Caught in the Act,” which
claimed the doctor prescribed Vicodin without conducting
proper medical examinations. 

The doctor brought
suit under section 632 and argued, like SCI does here, the
illegal act of recording does not constitute protected conduct
under the anti-SLAPP statute. 

Concluding to the
contrary, the court noted the statute covers “conduct in
furtherance of the exercise” of free speech, and found the
surreptitious recording—which it categorized as
“newsgathering”—was conduct in furtherance of that right.

    4
      Rudolph also contends his conduct falls within sections 425.16(e)(2)
and (3), but those arguments need not be reached.
14                SAFARI CLUB V. RUDOLPH

Rudolph contends his conduct advanced the “right
of free speech in connection with a public issue” because he
published the two videos to SCI’s 50,000 members “to
influence issues regarding governance” of the organization.
Opening Brief (“OB”) at 19. Rudolph’s act of recording is
therefore akin to the “newsgathering” detailed in KCOP,
meaning it constitutes conduct undertaken in furtherance of
his subsequent exercise of free speech.

    Plaintiffs counter that Rudolph’s conduct does not fit
within the anti-SLAPP statute because he violated section
632, and illegal conduct is not constitutionally protected. At
this point in the proceedings, however, it is far from clear that
Rudolph’s creation of the recording actually violated section
632, and unless the conduct conclusively is shown or
admitted to be illegal, a defendant can still invoke the anti-
SLAPP statute. Flatley v. Mauro, 

, 317
(2006). In particular, the California Supreme Court held the
statute may be invoked unless the conduct is “illegal as a
matter of law,” meaning the defendant “concedes” or
“uncontroverted and conclusive evidence” establishes the
speech or petitioning activity is illegal. 

To find
otherwise would eviscerate the anti-SLAPP statute’s
protections because the plaintiff could preclude the statute’s
application simply by alleging criminal conduct by the
defendant.

    As more fully explained below, section 632 outlaws only
the surreptitious recording of “confidential communications,”
but a communication is not confidential if “made in a public
gathering” or the parties reasonably may expect that it “may
be overheard.” See Cal. Penal Code §§ 632(a), (c). In light
of that standard, Rudolph’s creation of the recording may or
may not be criminal given the conversation took place in a
                 SAFARI CLUB V. RUDOLPH                     15

restaurant open to the public when other customers were
present. The upshot is that Rudolph is not precluded from
bringing an anti-SLAPP motion in the first instance, and
KCOP establishes his conduct fits within a protected
category—section 425.16(e)(4).

    Rudolph’s conduct was also connected to an issue of
public interest. “[T]he definition of ‘public interest’ within
the meaning of the anti-SLAPP statute has been broadly
construed to include not only governmental matters, but also
private conduct that impacts a broad segment of society
and/or that affects a community in a manner similar to that of
a governmental entity.” Rivero v. Am. Fed’n of State, Cty.,
and Mun. Emps., AFL-CIO, 

, 920
(2003) (quotation marks omitted). The Rivero court surveyed
the cases that had examined the boundaries of a “public
issue,” finding “the subject statements either concerned a
person or entity in the public eye, conduct that could directly
affect a large number of people beyond the direct
participants[,] or a topic of widespread, public interest.” 

(citations omitted).

     Here, the recording implicates public issues because it
involved two presidents of an organization with 50,000
members, and was published on the Internet to promote
reform of the organization and to “stop those in power at SCI
from wasting SCI’s resources.” Rudolph specifically
criticized SCI leadership for mismanagement and abuse at the
financial expense of the organization’s members. These
statements fall within the ambit of the statute’s broad
16                  SAFARI CLUB V. RUDOLPH

definition of an issue that implicates the public interest.5 See,
e.g., Damon v. Ocean Hills Journalism Club, 

468, 479 (2000) (statements about governance of
homeowners association with 3,000 members concerned the
public interest); Ludwig v. Superior Court, 

(1995) (development of a mall was “clearly a matter of
public interest”).

    In sum, mindful that the statute must be “construed
broadly” to “encourage continued participation in matters of
public significance,” Cal. Civ. Proc. Code § 425.16(a),
Rudolph adequately has shown each cause of action “aris[es]
from” activity taken “in furtherance” of his right to free
speech, 

Specifically, the creation of the
recording is akin to the newsgathering found to further the
exercise of free speech. The statements published for public
consumption also implicate public issues because they
concern the governance of an organization that impacts a
broad segment of society. Rudolph accordingly has met his
burden at step one of the anti-SLAPP analysis.

     B. Reasonable Probability of Prevailing

    At step two, the burden shifts to Whipple and SCI to show
“a [reasonable] probability of prevailing on the challenged
claims.” 

. To do so, they need only

     5
      Plaintiffs submit Rudolph has not shown the requisite connection
because the making of the recording is not itself a public issue, and the
public has no interest in the litigation pending in Pennsylvania and
Wyoming. This argument is unpersuasive. The surreptitious recording
need only be conduct that advances the exercise of free speech on an issue
of public interest. See 

. By exposing
alleged corruption in SCI, the making of the recording fits within that
framework.
                    SAFARI CLUB V. RUDOLPH                           17

“state and substantiate a legally sufficient claim,” 

(quotation marks omitted), that is, “plaintiff[s] must
demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to
sustain a favorable judgment if the evidence submitted by the
plaintiff[s] is credited.” 

(quoting Wilson v. Parker,
Covert & Chidester, 

, 821 (2002)). “The
applicable burden ‘is much like that used in determining a
motion for nonsuit or directed verdict, which mandates
dismissal when no reasonable jury could find for the
plaintiff.’” 

264 F.3d at 840).
Importantly, “[t]he court ‘does not weigh the credibility or
comparative probative strength of competing evidence,’ but
‘should grant the motion if, as a matter of law, the
defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the
claim.’” 

, 28 Cal. 4th at 821).6

         1. Statutory Invasion of Privacy

    The first claim is for invasion of privacy under section
632 of the Penal Code. Plaintiffs must show it is legally
sufficient and supported by sufficient facts to sustain a
favorable judgment if their evidence is credited. 

.




    6
      Rudolph conceded at oral argument it is appropriate to consider the
Whipple declaration, and the allegations in the verified complaint
generally mirror those appearing in that declaration. Accordingly, we
need not reach whether the district court erred in finding a verified
pleading may not be considered when assessing a plaintiff’s probability
of success at step two.
18                SAFARI CLUB V. RUDOLPH

    Section 632 renders liable “[e]very person who,
intentionally and without the consent of all parties to a
confidential communication . . . eavesdrops upon or records
the confidential communication” by “means of any electronic
amplifying or recording device.” See Cal. Penal Code
§ 632(a). The term “confidential communication” includes:

        any communication carried on in
        circumstances as may reasonably indicate that
        any party to the communication desires it to
        be confined to the parties thereto, but excludes
        a communication made in a public gathering
        or in any legislative, judicial, executive or
        administrative proceeding open to the public,
        or in any other circumstance in which the
        parties to the communication may reasonably
        expect that the communication may be
        overheard or recorded.

(emphasis added). The California Supreme
Court found “a conversation is confidential under section 632
if a party to that conversation has an objectively reasonable
expectation that the conversation is not being overheard or
recorded.” Hataishi v. First Am. Home Buyers Prot. Corp.,

, 1464 (2014) (quoting Flanagan v.
Flanagan, 

, 776–77 (2002)).

    The Whipple declaration makes out a prima facie case for
a violation of section 632, and furnishes an evidentiary basis
sufficient for a jury to find in plaintiffs’ favor. Whipple states
Rudolph contacted him for lunch on February 20, 2013, and
they met for five hours at a restaurant called Wineworks for
Everyone. Though there were “5 to 10 other patrons in the
room,” Whipple testified the conversation “was not capable
                 SAFARI CLUB V. RUDOLPH                      19

of being heard,” and noted “any time a waiter or patron came
to or by the table, we stopped talking about anything of
substance.” Whipple then declared he never consented to any
recording of the conversation, but learned Rudolph recorded
the entire discussion by audio and video means. These
allegations, if ultimately proven, reflect that Rudolph
recorded the conversation without Whipple’s consent, in
circumstances under which Whipple reasonably could expect
his statements would not be overheard. Accordingly, a
reasonable jury could find in plaintiffs’ favor should they
credit Whipple’s declaration.

    Rudolph fires off four arguments aimed at upending this
conclusion, each of which misses the mark. First, Rudolph
submits plaintiffs present no evidence the communication
was confidential because the Whipple declaration relates
exclusively to Whipple’s subjective beliefs. Yet, Whipple
was a firsthand participant in the conversation and his
declaration speaks not only to his beliefs, but to the objective
circumstances surrounding the discussion at the restaurant.

    Second, Rudolph submits the unedited Whipple Video
defeats the declaration because it proves there can be no
objectively reasonable expectation the conversation was
confidential. This argument misconstrues the task the parties
presented to the district court, for it asks for an explicit
weighing of evidence—i.e., the declaration versus the video.
At step two, however, “we accept as true all evidence
favorable to the plaintiff and assess the defendant’s evidence
only to determine if it defeats the plaintiff’s submission as a
matter of law.” Hecimovich v. Encinal Sch. Parent Teacher
Org., 

, 468–69 (2012) (quoting
Overstock.com, Inc. v. Gradient Analytics, 

, 699–700 (2007)). The video does not defeat the
20                 SAFARI CLUB V. RUDOLPH

Whipple declaration as a matter of law because, as the district
court found, what one person might consider a normal pause
when speaking to a waiter, another could reasonably find to
be a deliberate effort to maintain confidentiality.

    Third, Rudolph insists as a matter of law there can be no
objectively reasonable expectation of confidentiality because
the conversation occurred in a place that was open to the
public. That contention is at odds with California authority
viewing privacy as relative. See, e.g., Sanders v. Am. Broad.
Cos., Inc., 

, 915–16 (1999). For instance, in
KCOP, the reporter posing as a patient brought a companion
into the examination room, and later argued the doctor could
not expect his communications would be confidential because
another person was present. 

.
The court found “[t]he presence of others does not necessarily
make an expectation of privacy objectively unreasonable, but
presents a question of fact for the jury to resolve.” 

The court concluded a jury could find the doctor reasonably
expected the communications were private, and thus affirmed
the district court’s denial of the defendants’ anti-SLAPP
motion to strike. 

Likewise, here, if a jury
credits the Whipple declaration, it could find Whipple’s
claimed expectation of privacy to be objectively reasonable.
This possibility warrants denial of Rudolph’s motion to
strike.

    Rudolph maintains this analysis is flawed, but the
authority he invokes does not establish conversations in
public locations categorically cannot be confidential.7 In


     7
     For example, in Davis v. Los Angeles West Travelodge, No. CV 08-
8279 (CBM) (CTx), 

(C.D. Cal. Oct. 8, 2009)
(unpublished), the court examined (on a motion in limine) whether a
                    SAFARI CLUB V. RUDOLPH                             21

particular, he relies heavily on Deteresa v. American
Broadcasting Companies., Inc., 

(9th Cir.
1997), in which we affirmed a lower court’s grant of
summary judgment in favor of a defendant on claims for
violation of section 632 and invasion of privacy. 

468. Applying the old O’Laskey standard (which the
California Supreme Court has since overturned),8 we held the


conversation between the plaintiff and a desk clerk in a hotel lobby was
a confidential communication under section 632. 

The court
acknowledged the lobby was “public place,” but proceeded to weigh the
evidence, concluding “[g]iven the location of the communication and the
nature of the conversation, the desk clerk could have no reasonable
expectation that her conversation was not being overheard.” 

court limited this finding to the facts of the case. 

v. Les Schwab Tire Center of California, Inc., No. 2:11-cv-
03105-JAM-DAD, 

(E.D. Cal. Dec. 3, 2012)
(unpublished), the court examined (on a motion for sanctions) whether a
conversation “in the tire bay, an open and public place,” involved an
objectively reasonable expectation of privacy. 

The plaintiff
presented evidence “employees were coming and going and they could
readily overhear what was said,” and the defendant, for its part, “provided
no evidence to the contrary.” 

record, the court found neither
party could reasonably expect the discussion would not be overheard. 

are these unpublished cases of only limited persuasive value,
they are readily distinguishable. Here, unlike Chamberlain, the parties’
competing evidence creates a question of fact as to whether or not service
staff or other patrons could overhear the conversation between Whipple
and Rudolph.
     8
        Wilkins applied the O’Laskey standard of “confidential
communications,” which the California Supreme Court subsequently
overruled. See 

. Under the O’Laskey
test, a conversation is confidential only if the party has an objectively
reasonable expectation the content will not later be divulged to third
parties. See O’Laskey v. Sortino, 

, 248 (1990). The
California Supreme Court rejected that standard in Flanagan v. Flanagan,

(2002), endorsing instead the test set forth in Frio v.
Superior Court, 

(1988): “under section 632
22                   SAFARI CLUB V. RUDOLPH

plaintiff had no reasonable expectation of privacy in a
conversation that occurred in public, with a person who
openly identified himself as a reporter for ABC, where the
reporter indicated that he wanted to speak with the plaintiff
about appearing on a television show. 

465.

     Even if we assume Deteresa remains good law after
Flanagan, 

, n.8, Deteresa would still not control
here. Newsgathering is a quintessential function of a
reporter; indeed, a reporter’s very job is to record and
disseminate facts and information about news-worthy events.
Thus, the relationship (and concomitant expectation of
privacy in information shared) with a reporter who shows up
unannounced at one’s doorstep is very different than the
relationship between close friends. Because Whipple
believed he was talking to Rudolph as a long-time friend, the
critical fact supporting Deteresa’s result is absent here.
Contrary to Rudolph’s position, nothing about Deteresa
supports a per se rule that one cannot have a reasonable
expectation of privacy in a conversation just because it occurs
in public.

    Nor does Wilkins v. National Broadcasting Company,
Inc., 

(1999) support a per se rule. In
that case, two reporters surreptitiously recorded a lunch
meeting with two salesmen on “an outside patio table at a
restaurant in Malibu.” 

Far from holding that the
public setting automatically negated any reasonable
expectation of privacy, the court examined the facts
surrounding the lunch at length. 

It observed the


‘confidentiality’ appears to require nothing more than the existence of a
reasonable expectation by one of the parties that no one is ‘listening in’ or
overhearing the conversation.” 

                 SAFARI CLUB V. RUDOLPH                    23

reporters had brought two companions with them but the
salesmen never inquired as to the identities of the strangers.

“[w]aiters frequently came to the table, but
[the salesman] did not acknowledge them, pause in his sales
pitch, or even lower his voice.” 

facts of th[e]
case,” the court found the salesmen had no objectively
reasonable expectation of privacy. 

contrast,
Whipple contends the conversation could not be overheard,
because he and Rudolph lowered their voices overtly when
others approached.

    In short, even the cases cited by Rudolph demonstrate that
whether a communication is confidential is a question of fact
normally left to the fact finder. See 

–35; see also Vera v. O’Keefe, No. 10-cv-1422-L(MDD),

, at *4 (S.D. Cal. Aug. 9, 2012)
(“California courts have held that a reasonable expectation of
privacy may be a question of fact for the jury to decide when
either party has been recorded without his or her consent.”);
Turnbull v. Am. Broad. Cos., No. CV 03-3554 SJO (FMOx),

, at *6–7 (C.D. Cal. Mar. 7, 2005)
(examining a jury’s conclusion the plaintiffs did not have a
reasonable expectation of privacy in a conversation that took
place in a casting interview).

    The take-home message is that privacy is relative and,
depending on the circumstances, one can harbor an
objectively reasonable expectation of privacy in a public
location. Accordingly, the mere fact that Whipple’s
conversation took place in a public restaurant does not mean
Whipple failed to advance a prima facie case for a violation
of section 632.
24               SAFARI CLUB V. RUDOLPH

    Fourth, Rudolph contends there could be no objectively
reasonable expectation of confidentiality given Whipple and
Rudolph were adversaries in pending litigation. Not only
does Rudolph offer no authority to support this proposition,
the argument is unconvincing in any event. At the time of the
conversation, Whipple thought Rudolph was a good friend.
What is more, Rudolph lured Whipple to the conversation by
saying “he had not wanted to sue” Whipple and did so only
because the latter signed a letter as SCI president. Placed in
that light, and combined with the allegation they stopped
talking when other patrons approached, a reasonable jury
could find Whipple had an objectively reasonable expectation
of privacy in this circumstance.

    In sum, mindful that a “[r]easonable probability in the
anti-SLAPP statute [means] . . . only a minimum level of
legal sufficiency and triability,” 

, plaintiffs have met their burden at step two. The
Whipple declaration makes out a prima facie case for a
violation of section 632, and furnishes a basis sufficient for
a jury to find in plaintiffs’ favor on this claim.

       2. Negligence Per Se

    Plaintiffs’ next claim is for negligence per se, which
requires showing: (1) a defendant violated a statute,
ordinance, or regulation; (2) the violation proximately caused
injury; (3) the injury resulted from an occurrence the
enactment was designed to prevent; and (4) the plaintiff was
a member of the class of persons the statute was intended to
protect. 

–18.

    Plaintiffs aver Rudolph violated section 632 by making
the surreptitious recording, the violation proximately caused
                 SAFARI CLUB V. RUDOLPH                     25

them injury, the injury is the kind the statute is designed to
prevent, and they are persons the statute aims to protect.
Rudolph responds only that the claim must fail because there
is no plausible basis upon which a violation of section 632
can be established. In other words, Rudolph merely reiterates
his prior argument.

    Plaintiffs have met their step two burden as to the claim
for negligence per se. They allege adequately and then
subsequently support a violation of section 632. See 

(“A section 632 violation is
committed the moment a confidential communication is
secretly recorded regardless of whether it is subsequently
disclosed.”). Both the FAC and Whipple’s declaration aver
the recording caused injury. Surreptitious recordings are the
kinds of occurrences the statute was designed to prevent, and
individuals who unknowingly have their conversations
recorded are those the statute protects. As the district court
found, plaintiffs have shown a probability of success on their
negligence per se claim.

       3. Common Law Invasion of Privacy

    The final claim—brought only by Whipple—is for
common law invasion of privacy, which requires
“(1) intrusion into a private place, conversation[,] or matter,
(2) in a manner highly offensive to a reasonable person.”

.

    As to the first element, “the defendant must have
‘penetrated some zone of physical or sensory privacy . . . or
obtained unwanted access to data’ by electronic or other
covert means, in violation of the law or social norms.”
Hernandez v. Hillsides, Inc., 

, 286 (2009)
26               SAFARI CLUB V. RUDOLPH

(quoting 

). “[T]he expectation of
privacy must be objectively reasonable.” 

marks omitted). “The second common law element
essentially involves a ‘policy’ determination as to whether the
alleged intrusion is ‘highly offensive’ under the particular
circumstances.” 

“Relevant factors
include the degree and setting of the intrusion, and the
intruder’s motives and objectives.” 

adequately states and substantiates a claim
for common law invasion of privacy. Whipple avers
Rudolph’s surreptitious recording of their lunchtime
discussion intruded unlawfully into his private conversation.
He maintains the occurrence was objectively offensive
because Rudolph used friendship to lure him to lunch, then
secretly recorded their conversation and shared it widely with
members of the public. 

adds Whipple
suffered emotional distress, continues to be humiliated, and
fears he will be shunned, avoided, and subjected to ridicule.

question is close, we think plaintiffs’
proffered evidence, taken as whole, could support a
reasonable jury finding that Rudolph’s actions constituted a
“highly offensive” intrusion into Whipple’s privacy. Whipple
therefore meets his step two burden for common law invasion
of privacy. Rudolph nonetheless takes aim at Whipple’s
evidence as to both prongs of this claim.

           a) Intrusion into a private conversation

    Rudolph’s opening shot once again is to say there is no
objectively reasonable expectation of privacy when a
conversation takes place in a location that is open to the
public. However, as we have already discussed, courts have
consistently rejected that assertion.
                 SAFARI CLUB V. RUDOLPH                      27

    In Sanders v. American Broadcast Companies, for
example, a reporter working undercover obtained
employment alongside the plaintiff as a telepsychic, giving
“readings” to customers over the 

.
The reporter then secretly videotaped and recorded
interactions with the plaintiff and other psychics using a small
hidden camera. 

occurred in a large room
containing 100 cubicles that were open on one side, open on
top, and from which coworkers could be seen and heard. 

Visitors, however, could not enter this area without
permission from the front desk. 

plaintiff
sued the reporter for violating his privacy after one of his
conversations aired on television. 

began its analysis by noting it has not stated “an
expectation of privacy, in order to be reasonable for purposes
of the intrusion tort, must be of absolute or complete
privacy.” 

Indeed, “privacy, for purposes of the
intrusion tort, is not a binary, all-or-nothing characteristic.”

Rather, “[t]here are degrees and nuances to
societal recognition of our expectations of privacy: the fact
that the privacy one expects in a given setting is not complete
or absolute does not render the expectation unreasonable as
a matter of law.” 

words, “privacy . . . is
relative,” and “[t]he mere fact that a person can be seen by
someone does not automatically mean that he or she can
legally be forced to be subject to being seen by everyone.”

added “the reasonableness of a person’s
expectation of visual and aural privacy depends not only on
who might have been able to observe the subject interaction,
but on the identity of the claimed intruder and the means of
intrusion.” 

28                SAFARI CLUB V. RUDOLPH

    Applying that framework, the court found “an employee
may, under some circumstances, have a reasonable
expectation of visual or aural privacy against electronic
intrusion by a stranger to the workplace, despite the
possibility that the conversations and interactions at issue
could be witnessed by coworkers.” 

As to the
identity of the intruder, the court noted employees were
misled to think the reporter was a colleague, and thus had no
reason to suspect their conversations would be recorded for
television. 

see also 

.
Looking at the nature of the intrusion, it found “[t]he
possibility of being overheard by coworkers does not, as a
matter of law, render unreasonable an employee’s expectation
that his or her interactions within a nonpublic workplace will
not be videotaped in secret by a journalist.” Sanders, 

at 923. Distilling its holding, the court said the tort is not
defeated “simply because the events or conversations upon
which the defendant allegedly intruded were not completely
private from all other eyes and ears.” 

    Rudolph is correct Sanders distinguished workplaces
“regularly open to entry or observation by the public,” and
said “any expectation of privacy against press recording is
less likely to be deemed reasonable” in those locations. 

see also 

(noting
workplaces open to the public occupy “one end of the
spectrum”). The court did not, however, endorse a per se rule
holding there is no objectively reasonable expectation of
privacy when a conversation takes place in a location that is
open to the public. Privacy expectations may be diminished
in that scenario, but the court’s analysis instructs
emphatically that the inquiry requires a fact-based
investigation of the precise circumstances. This holding is
encapsulated in the pronouncement: “the fact that the privacy
                 SAFARI CLUB V. RUDOLPH                    29

one expects in a given setting is not complete or absolute
does not render the expectation unreasonable as a matter of
law.” Sanders, 

at 916.

    That Sanders did not endorse a per se rule is bolstered by
the California Supreme Court’s subsequent analysis in
Hernandez.       There, the court examined the privacy
expectations of two employees whose shared office their
employer surreptitiously videotaped after 

. It described its analytical framework as “consistent
with Sanders, which asks whether the employee could be
‘overheard or observed’ by others when the tortious act
allegedly occurred.” 

(citation omitted). Applying
Sanders, the court examined “the physical layout of the area
intruded upon, its relationship to the workplace as a whole,
and the nature of the activities commonly performed in such
places.” 

. Again, it acknowledged public locations
occupy one end of the privacy spectrum, but it continued to
suggest the analysis requires a fact-based inquiry into the
precise circumstances. In sum, though there is daylight for
Rudolph’s argument, a per se rule would be at odds with the
principles articulated by the California Supreme Court in this
area.

    The absence of a per se rule notwithstanding, the
sufficiency of Whipple’s allegations in light of Sanders must
be addressed. To start, the identity of the intruder weighs in
Whipple’s favor as Rudolph lured him to the lunchtime
conversation, saying “he had not wanted to sue” him and did
so only because Whipple signed a letter as SCI president.
True, Whipple and Rudolph were adversaries in litigation, but
Whipple still considered Rudolph to be a good friend, and
thus had little reason to suspect his conversation might be
recorded. The nature and means of intrusion also weigh in
30               SAFARI CLUB V. RUDOLPH

Whipple’s favor because the parties sought overtly to keep
the conversation quiet, yet Rudolph hoodwinked Whipple by
recording it. All told, Whipple has offered evidence
sufficient to establish a “probability” that a reasonable jury
could agree he maintained an objectively reasonable
expectation of privacy, and that Rudolph’s recording invaded
a confidential conversation under these particular
circumstances.

           b) Highly Offensive

    The next element requires the manner of intrusion be
“highly offensive” to a reasonable person, and “sufficiently
serious” and unwarranted as to constitute an “egregious
breach of the social norms.” 

(quotation marks and citation omitted). “Even in cases
involving the use of photographic and electronic recording
devices, which can raise difficult questions about covert
surveillance, ‘California tort law provides no bright line on
[‘offensiveness’]; each case must be taken on its facts.’” 

(quoting 

). Courts consider
“the degree of intrusion, the context, conduct and
circumstances surrounding the intrusion as well as the
intruder’s motives and objectives, the setting into which he
intrudes, and the expectations of those whose privacy is
invaded.” 

–76 (quoting
Miller v. Nat’l Broad. Co., 

, 1483–84
(1986)).

    Rudolph maintains the surreptitious recording was not
highly offensive because it took place in a public restaurant
amongst adversaries in pending litigation. As Whipple freely
discussed sensitive information about pending litigation
between himself and Rudolph, Rudolph insists there was no
                  SAFARI CLUB V. RUDOLPH                      31

deception, and thus his conduct cannot possibly rise to the
level of highly offensive.

    To be sure, Rudolph’s conduct seems less “offensive”
than that committed in other cases involving surreptitious
recordings, see, e.g., Dietemann v. Time, Inc., 

,
247, 250 (9th Cir. 1971) (finding an invasion of privacy
where the defendant gained entrance into another person’s
home by subterfuge and then recorded him); Noble v. Sears,
Roebuck & Co., 

, 659–60, 663 (1973)
(reversing a lower court’s dismissal of a cause of action for
“unreasonably intrusive investigation” in violation of the
right to privacy where a private investigator obtained entrance
into a hospital room by deception and then recorded a
patient); 

(reversing a grant
of summary judgment in favor of the defendant and reasoning
that reasonable people could find that a news team’s intrusion
into the plaintiff’s bedroom, without authorization, to film
rescue attempt was highly offensive, given the plaintiff’s
vulnerable state), but a jury could still find the element is met
notwithstanding the public nature of the restaurant. There is
no doubt it is more offensive to be recorded while in an area
with inherently elevated privacy (home, hospital room,
bedroom), but the location, at bottom, simply is one factor
incorporated into the analysis. Here, moreover, Whipple was
misled into thinking Rudolph was a friend, then had his
secretly recorded conversation disseminated widely on the
Internet. Furthermore, as the district court noted, such
conduct can warrant the imposition of criminal penalties,
suggesting the California legislature, and perhaps an ordinary
32                   SAFARI CLUB V. RUDOLPH

person, would view it to be highly offensive.9 See Cal. Penal
Code § 632(a) (providing for “imprisonment in the county jail
not exceeding one year”). Mindful that Whipple need only
show “minimal merit” for his claim, Soukup v. Law Offices of
Herbert Hafif, 

, 279 (2006), if his evidence is
credited, a reasonable jury could conclude Rudolph’s conduct
was highly offensive. Whipple has met his burden at step two
of the anti-SLAPP analysis.

                        IV. CONCLUSION

    In sum, the district court correctly denied Rudolph’s anti-
SLAPP motion to strike plaintiffs’ claims for violation of
California Penal Code section 632, negligence per se, and
common law invasion of privacy. Though Rudolph can show
those claims arise from activity he took in furtherance of his
right to free speech, plaintiffs can show a reasonable
probability of prevailing on each of the challenged claims.
Accordingly, we affirm the district court’s denial of
Rudolph’s motion to strike the above claims under
California’s anti-SLAPP statute. We also deny Rudolph’s
corresponding request for an additional attorney fee award.




     9
      Rudolph’s contrary authority is plainly distinguishable. In both

–78, and 

–66,

, the court held that the plaintiff had no objectively
reasonable expectation of privacy as a matter of law. Thus, the plaintiff
in both of those cases could not establish the first element of an invasion
of privacy claim. Conversely here, there is a question of fact as to
whether Whipple had an objectively reasonable expectation of privacy in
his conversation with Rudolph.
                SAFARI CLUB V. RUDOLPH                 33

   We remand for further proceedings consistent with this
opinion. The parties shall bear their own costs on appeal.

   AFFIRMED.