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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

BONITA P. BOURKE et al.,

Plaintiffs and Appellants,

NISSAN MOTOR CORPORATION IN U.S.A.,

Defendant and Respondent.

No. B068705
July 26, 1993

APPEAL from a judgment of the Superior Court of Los Angeles County. Douglas A.
McKee, Judge. Affirmed.

Latham & Watkins, Thomas L. Pfister and Andrew M. Paley for Defendant and
Respondent.

Noel Shipman for Plaintiffs and Appellants.

Plaintiffs Bonita Bourke and Rhonda Hall appeal the entry of summary judgment in their
suit against Nissan Motor Corporation in U.S.A.("Nissan") alleging wrongful
termination, invasion of privacy and violation of their constitutional right to privacy in
connection with Nissan's retrieval, printing and reading of E-mail messages authored by
plaintiffs. We affirm.

FACTS

Plaintiffs were hired by Nissan in June of 1989 as Information Systems Specialists, to
assist Infiniti car dealership personnel in resolving problems with the computer system
which ran the operations of Infiniti dealers. Plaintiffs were essentially customer service
representatives for users of the computer system.

In June of 1990, one of plaintiffs' co-workers, Lori Eaton, was conducting a training
session, demonstrating the use of E-mail at an Infiniti dealership. In order to show how
E-mail could be used to aid the management of the dealership, Eaton randomly selected a
message sent by Bourke to an employee of the dealership. 'Unfortunately, Bourke's E-
mail was of a personal, sexual, nature and not business-related.

Eaton reported this incident to her supervisor, who with management's authorization
reviewed the E-mail messages of the entire workgroup. Nissan found substantial numbers

of personal, including sexual, messages from Bourke and Hall, and issued written
warnings to plaintiffs for violating the company policy prohibiting the use of the
company computer system for personal purposes.

Over the course of her employment with Nissan, Bourke received periodic written
performance reviews which indicated that she had problems in the areas of decision
making, oral communication skills, job knowledge, and working with her peers. In her
annual performance review, which she received in October 1990, Bourke was rated as
"needs improvement," the second lowest of six levels.

When Hall's performance was reviewed on an interim basis in May 1990, she received an
overall borderline satisfactory rating. Her performance was rated unsatisfactory in certain
areas. She was criticized for spending too much time on personal business, and was told
that she needed to demonstrate greater initiative and to put forth a greater effort to learn
the computer system. In her annual performance review, Hall's overall evaluation was
unsatisfactory, the lowest of six possible ratings. Her job performance deteriorated after
the October 1990 review.

On December 28, 1990, while Nissan was closed for the Christmas holiday, plaintiffs
filed grievances with Nissan's human resources department, complaining that the
company had invaded their privacy by retrieving and reading their E-mail messages.

On January 2, 1991, Bourke was given a final warning notice, which stated that her
performance would be monitored over the next three months and that she would be
terminated if she did not meet the performance objectives outlined in the notice. Bourke
resigned her position the next day. On that same day, Nissan terminated Hall. Hall had
already accepted a job with another company, and was not surprised that she had been
fired.

Based upon Nissan’s actions in reviewing their E-mail messages as described above,
plaintiffs sued Nissan for common law invasion of privacy, violation of their
constitutional right to privacy, and violation of the criminal wiretapping and
eavesdropping statutes. They also stated a cause of action for wrongful discharge in
violation of public policy, that is, termination in retaliation for the filing of complaints
objecting to Nissan's invasion of their privacy.

Nissan moved for summary judgment, contending that there existed no disputed issue of
material fact to warrant trial of the matter. The trial court found in Nissan's favor on two
grounds: (1) Based on the undisputed facts, plaintiffs had no reasonable expectation of
privacy in their E-mail messages; and (2) plaintiffs failed to submit a separate statement
meeting the requirements of Code of Civil Procedure section 437c, subdivision (a)

[1]

and Law and Discovery Policy Manual Paragraph 207.

STANDARD OF REVIEW

Summary judgment is appropriate where the record establishes as a matter of law that no
material disputed issue of fact exists or that the cause of action cannot prevail. (

Wilkerson

v. Wells Fargo Bank

(1989) 212 Cal.App.3d 1217, 1224.) Because the motion raises only

questions of law regarding the construction and effect of the supporting and opposing
papers, this court will make its own independent determination of the questions of law
raised in the motion. (

Slivinsky v. Watkins-Johnson Co.

(1990) 221 Cal.App.3d799, 803-

804;

Wilkerson v Wells Fargo Bank, supra,

at p. 1225.) In making this determination, the

court will strictly construe the papers of the moving party, and resolve any doubts in
favor of the party opposing the motion. (

Isaacs v. Huntington Memorial Hospital

(1985)

38 Cal.3d 112, 134-135.)

DISCUSSION

Common Law Invasion of Privacy and Violation of Constitutional Right to Privacy

Under the common law, “‘[o]ne who intentionally intrudes, physically or otherwise, upon
the solitude or seclusion of another or his private affairs or concerns, is subject to liability
to the other for invasion of his privacy, if the intrusion would be highly offensive to a
reasonable person.’ (Rest.2d, Torts§ 652B.)” (5 Witkin, Summary of Cal. Law (9th ed.
1988)Torts, § 580, p. 674.) Moreover, Article 1, section 1 of the California Constitution
establishes privacy as a fundamental right of citizens of this state. Because the
constitutional right to privacy is broader than, and encompasses, the common law tort of
invasion of privacy (

see Porten v. University of San Francisco

(1976) 64 Cal.App.3d

825, 829), we restrict our analysis to a discussion of the constitutional claim.

Whether an individual's constitutional right to privacy has been violated depends first on
a determination whether that individual had a personal and objectively reasonable
expectation of privacy which was infringed. (

Alarcon v. Murphy

(1988) 201

Cal.App.3d1, 5;

People ex rel. Franchise Tax Bd. v. Superior Court

(1985)164

Cal.App.3d 526, 540-541.) Nissan maintains that the evidence conclusively establishes
that plaintiffs had no reasonable expectation of privacy in their E-mail messages. In
support of this contention, they cite the following undisputed facts: (1) Plaintiffs each
signed a Computer User Registration Form, which states that "[I]tis company policy that
employees and contractors restrict their use of company-owned computer hardware and
software to company business." (2) In November or December of 1989, more than a year
before her termination, Hall learned from co-workers that E-mail messages were, from
time to time, read by individuals other than the intended recipient. Hall relayed this
information to Bourke in March of 1990. (3) In June 1990, a full six months before
Bourke's termination, a fellow employee, Lori Eaton, contacted Bourke to complain
about the personal, sexual nature of Bourke's E-mail message which Eaton had retrieved
for demonstration purposes during a training session at an Infiniti dealership.

Nissan contends that the foregoing uncontroverted facts regarding plaintiffs knowledge
that E-mail messages could in fact be read without the author's knowledge or consent

establishes as a matter of law that plaintiffs had no objectively reasonable expectation of
privacy in those messages. In contradiction of that conclusion, plaintiffs assert that they
had such an expectation because they were given passwords to access the computer
system and were told to safeguard their passwords. While plaintiffs' statements that they
believed that their E-mail messages would remain private may be sufficient, on a motion
for summary judgment, to raise the issue of plaintiffs' subjective understanding, the
question presented to us is whether their expectations of privacy were objectively
reasonable as a matter of law. We agree with the trial court that they were not.

In the absence of a reasonable expectation of privacy, there can be no violation of the
right to privacy. (

Alarcon v. Murphy, supra,

201 Cal.App.3d 1, 5.) Thus, plaintiffs' causes

of actions for common law invasion of privacy and violation of the constitutional right to
privacy were properly dismissed on summary judgment.

Violation of Penal Code section 631

Penal Code section 631 prohibits a person from “intentionally tap[ping], or mak[ing] any
unauthorized connection . . . with any telegraph or telephone wire, line, cable, or
instrument, .. . or . . . read[ing], or attempt[ing] to read, or to learn the contents of any
message, report, or communication while the same is in transit or passing over any wire,
line or cable . . . .” Penal Code section 637.2 provides a civil right of action against one
who violates the wiretapping and eavesdropping statutes.

Plaintiffs have cited no authority to support their contention that section 631 covers the
retrieval, printing and reading of E-mail messages which is not authorized by the author
of the message. And by its express terms, the statute does not apply to the facts of this
case: (1) There is no allegation that Nissan “tapped”into its own telephone lines, and
indeed there would be no need to do so since, being the system operator, Nissan had
access to the network without resort to a telephone line tap. (2) Likewise, as the owner
and operator of the system, Nissan's connection to the telephone lines or cable which
connected the system would necessarily be authorized. And (3) Nissan did not access the
messages during transmission. Rather, the messages were retrieved from an electronic
storage device and printed so that they could be read. Nissan's actions in retrieving,
printing and reading plaintiffs' E-mail messages simply are not included within the
actions proscribed by Penal Code section 631. While plaintiffs may argue that the law is
outdated, judges are not authorized to amend statutes even to bring them up-to-date.

III

Violation of Penal Code Section 632

Penal Code section 632 prohibits the eavesdropping or recording of a "confidential
communication by means of any electronic amplifying or recording device." Again, the
plain words of the statute simple do not permit a finding that Nissan's conduct violated

the law, as no amplifying or recording device was used to retrieve and read plaintiffs' E-
mail messages. Moreover, the court of appeal has held that section 632 proscribes only
“the interception of communications by the use of equipment which is not connected to
any transmission line” (

People v. Ratekin

(1989) 212 Cal.App.3d 1165, 1168), a

circumstance not present in this case.

Wrongful Discharge in Violation of Public Policy

In the absence of an agreement to the contrary, an employee maybe terminated at-will,
that is, for any reason or for no reason at all. (

Foley v. Interactive Data Corp.

(1988) 47

Cal.3d 654,665.) An employer may not, however, fire an employee for a reason which
violates public policy, "since otherwise the threat of discharge could be used to coerce
employees into committing crimes, concealing wrongdoing, or taking other action
harmful to the public weal." (

Ibid.; see also, Tameny v. Atlantic Richfield

(1980) 27

Cal.3d 167, 178 [employee terminated for refusing to engage in price-fixing];

Petermann

v. International Brotherhood of Teamsters

(1959) 174 Cal.App.2d 184, 188 [employee

terminated for refusing to commit perjury].)

Plaintiffs contend that they were fired in retaliation for filing complaints about Nissan's
review of their E-mail messages, and that their terminations therefore violated the public
policy of the State of California that its citizen should be free from unauthorized and
unreasonable intrusions into their private lives. A claim for wrongful termination in
violation of public policy necessarily requires a violation of public policy. We concluded
in Section I above that Nissan's actions in reviewing plaintiffs' E-mail messages did not
violate their constitutional right to privacy. Therefore, plaintiffs have failed to state a
claim for wrongful termination in violation of public policy.

Because we conclude that plaintiffs' claims were properly disposed of on summary
judgment since there were no disputed issues of material fact requiring a trial of the
matter, we need not decide whether the trial court abused its discretion in dismissing the
action for plaintiffs' failure to submit a separate statement of facts pursuant to Code of
Civil Procedure section 437c, subdivision(b).

DISPOSITION

The judgment is affirmed.

/signature/
ARMSTRONG, J.

We concur:

/signature/
TURNER, P.J.