Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC 336907, Irving S. Feffer, Judge.
Law Offices of Steven A. Simons and Steven A. Simons for Plaintiff and Appellant.
Quinn Emanuel Urquhart Oliver & Hedges, John S. Purcell and Valerie Roddy for Defendant and Respondent.
ROTHSCHILD, J.
Murielle Malebranche brought this action against Sprint Communications, Inc., her telephone service provider. She alleged that Sprint disclosed her personal identifying information to Ernest Damour, a man who had physically and emotionally abused her and stalked her in New York. This information allowed Damour to find her in Los Angeles, where she had moved to escape him, and continue to stalk her. The trial court granted Sprint’s motion for summary judgment on the grounds that Malebranche could not establish that Sprint breached any duty of confidentiality nor could she establish that such a breach, even if it occurred, was a cause of the harm that she suffered from Damour. We conclude that Malebranche cannot establish that Sprint breached its duty of confidentiality and therefore we need not address the causation issue.
FACTS AND PROCEEDINGS BELOW
The following facts are undisputed.
Malebranche became a Sprint subscriber in 2000.
While living in New York, Malebranche began dating Ernest Damour. When Malebranche broke up with Damour in the Spring of 2002, he became abusive. Between 2002 and 2004, Damour broke into Malebranche’s apartment several times and physically attacked her. On one occasion, Damour showed Malebranche a copy of her Sprint telephone bill. He told her he obtained it from a friend who worked at Sprint. (Malebranche does not claim Sprint negligently hired or supervised this alleged identity thief.) Damour also hid a recording device in Malebranche’s apartment to monitor her calls. She testified that she did not know how long Damour had been recording her calls. In 2002 and 2003 Malebranche notified Sprint of Damour’s stalking and his claim that he had obtained her personal information from a Sprint employee.
In July 2004, Malebranche moved to Los Angeles. She never disclosed her Los Angeles address to Damour. Before moving, she cancelled her Sprint service and left a Los Angeles post office box as the forwarding address for her closing bill. According to Sprint records, a week after she moved to Los Angeles someone claiming to be Malebranche made three telephone calls to Sprint over a four-day period concerning her former Sprint account. In the first call, the caller was unaware the account had been closed and hung up. In the second call, the caller requested a facsimile copy of Malebranche’s recent bills. In the third call, the caller changed Malebranche’s forwarding address to Damour’s address in New York. The records Sprint sent to Damour contained Malebranche’s Post Office Box number in Los Angeles.
Somehow Damour obtained Malebranche’s new home address in Los Angeles and waited for her near her apartment building one afternoon. As Malebranche slowed her car to turn onto her street Damour jumped in on the passenger side. Malebranche tried to get out but Damour grabbed her by the waist and held her. She called out to a passerby to summon the police. Damour told her he was not going to hurt her but that she needed to go back to New York with him. They sat in the car for a short time while Damour “just kept rambling about different things.” When Damour heard sirens approaching he leaped out and ran to his car. He was gone by the time the police arrived. Thereafter Damour made harassing telephone calls to Malebranche, her fiancé, friends and relatives.
Malebranche brought this action against Sprint alleging invasion of privacy, negligence and unfair business practices. All three causes of action are based on Malebranche’s contention that Sprint intentionally or negligently divulged her Los Angeles post office box address to Damour which allowed him to find her home address and perpetrate his attack on her.
Sprint answered the complaint and moved for summary judgment. In support of the motion Brandon Howard, a Sprint executive, testified that all Sprint accounts are protected by passwords. Under Sprint procedures and practices customer service representatives are not permitted to divulge any information regarding an account or make any changes in the account unless the customer provides the correct password. Howard further testified that he was in a position to know of any “systematic problem with these procedures.” As of the date of his testimony, Howard had not heard of any customer complaint regarding password protection other than the one made by Malebranche. Upon learning about Malebranche’s claim that Damour had obtained her Post Office Box address, Howard reviewed her records and could find no evidence Sprint had ever given any information about Malebranche’s account to anyone who had not provided the correct password. Howard asserted: “Sprint has never knowingly given plaintiff’s information to any third party. While plaintiff claims a former boyfriend made changes to her account, he could only have done so by having someone pose as Ms. Malebranche and making use of her account password.”
Malebranche produced no evidence contradicting Howard’s testimony.
The trial court granted Sprint’s summary judgment motion and Malebranche filed a timely appeal from the judgment.
DISCUSSION
I. APPELLATE REVIEW OF SUMMARY JUDGMENT.
A defendant moving for summary judgment must show that the plaintiff cannot establish one or more elements of the cause of action or there is a complete defense. (Code Civ. Proc., § 437c, subd. (p)(2).) The defendant does this either through evidence which conclusively negates an element of the plaintiff’s cause of action or conclusively establishes a defense or by evidence the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Only if the defendant meets its burden does the burden shift to the plaintiff to show the existence of a triable issue of fact with respect to the cause of action or defense. (Id. at p. 850.)
We review the trial court’s summary judgment ruling de novo to determine whether the moving party met its burden of showing that there is no triable issue of any material fact and that it is entitled to judgment as a matter of law. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
Here Sprint met its burden by negating the element of breach of duty common to all three of Malebranche’s causes of action.
II. THE UNDISPUTED EVIDENCE SHOWS SPRINT DID NOT BREACH A DUTY OF CONFIDENTIALITY.
All the theories of liability put forward by Malebranche rely on a breach of the duty not to disclose personal identifying information regarding a customer without the customer’s consent.
Sprint does not deny it owed Malebranche a duty to protect the privacy of her records. Sprint does, however, deny it breached this duty. The undisputed evidence supports Sprint’s denial. The evidence shows it was Sprint’s policy and practice that no one could access Malebranche’s account information without identifying herself as Malebranche and providing her password. The evidence further shows that when Malebranche complained to Sprint that someone had gained access to her confidential records Sprint carried out an investigation. The investigation found no evidence in Sprint’s records that anyone accessed Malebranche’s account without her password. Thus, although evidence showed that Damour obtained Malebranche’s Post Office Box address from Sprint, Malebranche produced no evidence to show that Sprint allowed Damour, or anyone else, to obtain access to her records without use of her password.
Malebranche argues that Sprint had a duty to add stricter protections to her account because it knew about Damour’s stalking her, that he claimed to be getting her personal information from a Sprint employee and that someone who did not know her telephone number or that her account had been closed attempted to obtain information about her account. She produced no evidence, however, as to what these stricter protections should have been or that they would have been effective in dealing with Damour’s efforts to obtain her personal information. In short, Malebranche produced no evidence that Sprint’s policy and practice of requiring a password was inadequate to satisfy it’s duty to keep her records confidential.
DISPOSITION
The judgment is affirmed. Respondent is awarded its costs on appeal.
We concur: MALLANO, Acting P. J., VOGEL, J.