August 5, 2020
One civil litigation technique we’ve found to be rarely used (or even understood1) is bringing a civil cause of action based on a penal code statute that provides for one.
For instance, in evaluating a situation where property has been taken by a defendant, every civil litigator can recite the elements of the tort of conversion (CACI 2100), “the wrongful exercise of dominion over the property of another.” Lee v. Hanley, 61 Cal.4th 1225, 1240 (2015). But another potential cause of action is found in Penal Code § 496. That code section permits a civil action to be brought against, among others, the person responsible for “the actual theft of the property” (Id. § 496(a)), and permits the civil plaintiff to “bring an action for three times the amount of actual damages, if any, sustained by the plaintiff, costs of suit, and reasonable attorney’s fees” (Id., § 496(c)), remedies not normally available in a tort cause of action.
Another statute, one that is increasingly important as our world goes more and more digital, Penal Code § 502, addresses “unauthorized access to computers, computer systems, and computer data.” Not limited to “hackers,” this includes, e.g., “employee misconduct” where the access was “not reasonably necessary to the performance of the employee's work assignment.” People v. Childs, 220 Cal. App. 4th 1079, 1103 (2013). Penal Code § 502(e)(1) permits “the owner or lessee of the computer, computer system, computer network, computer program, or data who suffers damage or loss … may bring a civil action against the violator for compensatory damages and injunctive relief or other equitable relief,” and “the court may award reasonable attorney’s fees.” Id. § 502(e)(2). (The federal equivalent to Section 502, the Computer Fraud and Abuse Act, similarly provides for a civil cause of action; see 18 U.S.C. § 1030(g). As civil authority interpreting California’s Penal Code § 502 is relatively scarce, federal authority applying the CFAA in a civil context may prove helpful2.)
Penal Code Section 637.2 provides a civil cause of action for violations of Title 15, Chapter 1.5 of the Penal Code, which bars acts like eavesdropping on, or recording, things like confidential telephone communications (Id. § 632) and calls involving at least one cellular telephone (Id. § 632.7). Assuming the other requirements of due process are satisfied, defendants in other states can be held liable for this conduct. Kearney v. Salomon Smith Barney, Inc., 39 Cal. 4th 95, 105 (2006). Although there’s no attorneys fees provision in this statute, it does provide for statutory damages in the amount of $5,000 per violation. Other corners of the Penal Code contain provisions permitting a civil cause of action in highly specific circumstances; e.g.: Section 423.4 (for violations of Section 423.2; Section 530.8(d)(2) (for identity theft); Section 528.5(e) (maliciously impersonating another person online); Section 11414(d) (intentionally harassing a child or ward of a person because of that person’s employment); Section 245.6(e) (student hazing).
Finally, a little known section of the Government Code, Section 36900(a), permits a civil action to be brought to address a violation of a municipal ordinance. Riley v. Hilton Hotels Corp., 100 Cal. App. 4th 599, 607 (2002).
1 Case in point, one partner at a midsized multinational law firm recently opposed our cause of action under Penal Code § 502 by bringing a demurrer and a motion to strike, asserting the court lacked jurisdiction over “criminal actions,” etc. We never had an opportunity to prevail on that point, however, as our petition to compel arbitration was granted, and, shortly thereafter, opposing counsel withdrew from the case.
2 See, e.g., Guillemin v. Stein, 104 Cal.App.4th 156, 168 (2002) (where a California statute is comparable to a federal analog, federal case law construing the federal law is persuasive authority on the meaning of the California statute); Musaelian v. Adams, 45 Cal.4th 512, 518, fn. 2 (2009) (accord).