Metropolitan News-Enterprise


Tuesday, June 25, 2002


Page 4


C.A. Says $120,000 in Damages for Electronic Eavesdropping Not Excessive


By KENNETH OFGANG, Staff Writer/Appellate Courts


An award of $120,000 in statutory penalties to a Glendale attorney whose stepmother illegally recorded his phone conversations with his late father was not excessive, the Court of Appeal for this district ruled yesterday.

Honorine Flanagan’s right to due process of law wasn’t violated by the size of the award, Justice Margaret Grignon wrote in an unpublished opinion for Div. Five, because her conduct was “despicable” and grossly violated J. Michael Flanagan’s rights.

The latest ruling follows a March 14 decision in Flanagan’s favor by the state Supreme Court. The high court ruled that a person whose phone conversation is intercepted without his or her consent is entitled to damages if he or she had an objectively reasonable expectation of confidentiality.

The justices were unanimous in sending the case back to Div. Five, which had followed a previous Court of Appeal decision holding that a communication is confidential only if there was an objectively reasonable expectation that the contents would not be later divulged to a third party.

The panel held yesterday that Michael Flanagan is entitled to the maximum statutory penalty, $5,000, for each of Honorine Flanagan’s 24 violations of the California Invasion of Privacy Act.

A Los Angeles Superior Court jury found that Honorine Flanagan had illegally taped 24 conversations between husband John Flanagan and his son. The jury awarded the $5,000 limit for each violation, plus $1.2 million in punitive damages.

Judge Ralph Dau, however, cut the total award to $5,000. He concluded that there was insufficient evidence to support the award of punitive damages, and that the act’s provision entitling a plaintiff to the greater of $5,000 or three times the actual damages applies to the action as a whole, not to each violation.

In its first ruling, Div. Five said that because the statutory damages are in the nature of a penalty, punitive damages are not available under the act, although they might be recoverable on a common-law privacy claim.

They also concluded that a separate statutory award is available for each violation. But they limited Michael Flanagan’s award to $10,000, reasoning that only two of the conversations were confidential within the meaning of the 1990 decision in O’Laskey v. Sortino, 224 Cal.App.3d 241.

The high court, however, in an opinion by Justice Joyce L. Kennard, held that O’Laskey and a 1997 Ninth U.S. Circuit Court of Appeals ruling that followed it were wrong and that two other Court of Appeal decisions that followed the broader rule were correct.

The lawsuit arose out of a battle between Honorine  Flanagan and her stepson over John Flanagan’s multimillion-dollar estate.

John  Flanagan  died in March 1997, leaving everything to his wife. His son contested the will, but lost in Riverside Superior Court and in the Court of Appeal, and his petition for review was denied last year by the high court.

Michael Flanagan accused his stepmother of injecting his father with water instead of with the medication that had been prescribed for the elder Flanagan’s prostate cancer. This was done, the son alleged, after the father had raised the possibility of leaving one-third of his estate to Michael Flanagan and his sister, rather than leaving all of it to his wife as he had previously announced.

In July 1996, while John Flanagan was still living—although in poor health—Honorine  Flanagan sued her stepson for slander, invasion of privacy, and infliction of emotional distress.

Michael  Flanagan  responded with a cross-complaint, including claims for multiple violations of Penal Code Sec. 632, which generally prohibits the recording of “confidential communications” without the consent of both parties.

The statute makes such recording a crime, in addition to providing for the civil remedy.

At trial, Honorine Flanagan admitted installing a recording device on her home telephone, but claimed her husband knew about it. The jury, which rejected her claims against her stepson, found for him on 24 of his 27 claims of illegal recording.

Honorine Flanagan, Grignon wrote yesterday, “knew her conduct was illegal” but recorded the calls as part of a “plan to hasten her husband’s death and secure his large estate.” As a result, the justice continued, she “realized great financial gain” while her stepson “may have lost his father prematurely, was deprived of a potential inheritance, and was required to defend a lawsuit based on the information Honorine illegally recorded.”

Attorneys on appeal were Jerry K. Straub and Patricia Venegas of the Law Offices of Jerry K. Straub and John Nouskajian Jr. for Michael Flanagan and Edwin W. Green, A. Kristine Floyd and Luke G. Anderson of Allen Matkins Leck Gamble & Mallory for Honorine Flanagan.

The case is Flanagan v. Flanagan, B122810.


Copyright 2002, Metropolitan News Company