over a review of the district court's denial of dr lawrence's anti slapp motion with regard to three causes of action they district court held that the plaintiffs established a probability of success on the merits on three claims that section six thirty two claim negligence per se claim and its invasion of privacy claim i'd like to address the errors made by the district court first with regard to the section six thirty two claim and the negligence negligence per se claim to to satisfy the second prong of the anti slapp motion the plant this have to establish a probability of success on their client they have to do so with admissible evidence the plaintiff in this case didn't didn't exist go back to step one ok or not this isn't further and sort of protected activity  free speech or right to petition the fine of say that this violates section six thirty two of the conduct of us so how can that be in furtherance if it's a criminal violation  the cases say that you can't just allege that it is a violation of six thirty two if that were the situation you have no at that slot that would be it would be meaningless the only cases say that it has to be established that it is a violation it has to be a matter as a matter of law in this case we know that that can't be the case because there was a policeman or injunction and the court found that there was no probability of success on the merits if this was a clear violation of section six motion as i understood it you were relying upon the preliminary injunction determination not with regard to the denial of the anti's slap under the second prong of the  f the anti slapp analysis i would be relying on that if the argument is that we violated a six thirty two as a matter of law and i believe that that would be incorrect so so moving to section six or the second prong of six thirty two and negligence per se you have to look at this so the players have to produce evidence ok the players don't produce any evidence the court went and look at their whole record and it looked at the whipple declaration in addition there was the rudolph declaration and the two the two videos that are in evidence and for the courts in our review of this matter so let me ask you on that second prong isn't our task to look at what the plaintiffs present and assess the  credibility if you will of their evidence not balance it against yours on making the second step to germination in related issue is that little declaration is in the record what's wrong with the district judge looking at what the statute says we can look at which is pleadings and affidavits in the record i believe that the weapons declaration is fair game and i believe the weapons declaration doesn't do what either the district court or the plaintiffs wanted to do and  on so let's look at the with the declaration first of all you have to figure out what is a confidential communication has to be a violent you know has to be a recording of a confidential communication that's the basis for both the six thirty two in a negligent negligence per s client and we all have views of what is confidential but this is a statute there's a statutory definition of what is confidential what isn't confidential and what isn't confidential is any communication made in any circumstance in which the parties may reasonably that the communication may be overheard or recorded may be overheard and recorded now this is an objective standard under the case is it your subjective views as to what you thought isn't really relevant is an objective stand commission has all sorts of percipient factual objective information about you may not believe it but that they reduced the volume of their voice when people came by that's not a subjective analysis that's mr wh 's declaration that when people are around the voices went down so how is that not something we can take into account ok you can take it into account but let me explain so what is what is objective the two people who are in litigation go into a public restaurant public sitting there in the middle of the restaurant and they're talking about the litigation five to ten had been long time friends so it was a different scenario then and of someone that you have always dealt with at arm's length invited you to a lunch and you were in proceedings together as opposed to someone you had a relationship with and you were friends with then you were told that we only salute you because you're the president you know we're still friends but that  those are there well those are not subjective that's setting the stage for a while the conversation took place while it may or may not have been overheard write it while it sets it sets up the scenario but we're in a public restaurant and the standard is an objective standard as to whether you have a reason like that expectation that you may be overheard is i'm not sure that any time there's a conversation in a public place and other people are present that the definition is met in terms of whether you may or may not be overheard in a public restaurant where there are other people present yes i think you have to that is you don't go into starbucks without a reasonable expectation that you may be over line because i knew the f b i slap there it's a complete a no it's this court's requirement to take a look at every there's no dispute on that both parties agree on that issue if you complete the novo look at all the record and make your own determination look at the on your own thing so if i if i just going back to the point that you were making and your honor's question so what do you see set in this thing so we have these facts but then he says i think that we lowered our voice and i think that people couldn't hear me well what is he trying to say what he's trying to say there and what that evidence goes towards is is whether people did overhear arm or not but that's not the standard for confidential confidential isn't whether somebody overheard me confidential is whether we're in a reasonable circumstances where somebody may over her so what he says is well i think that we lowered our voice when people came by what is ignored is that in fact they were in a situation where it was reasonable to expect that people may overhear us and therefore what we did was try to lower our voice so that's you know the then you're arguing a person a rule that's what you're you which you just told me we don't have well if your position is even if the parties to this conversation both testified for example that we lowered our voice you're saying well they may not be successful because it's a public restaurant because therefore there's a person a that's what you're that's what your argument leads to and you acknowledge to me that there's no support for that in the law that there is there is no case i think the wilkins case comes close but it does not do that that's one prong of my argument the second prong of the argument is let's look at all of the  of confidentiality again that's not the test the question is whether they may be overheard but let me give you an example and let the circumstances question well the question is what is the evidence that leads you t and let me give you an example if if if the plan of says that the light was read on it on an issue of importance and the defendant said the light was green fact issue of credibility you have to determine that that's a fact issue that's that's right but if the plaintive says that i think the light was red and the defendant says the light was green and here's a video showing you at the time of the incident that the light was green district judges assessing this the district judge is looking at what the plaintiffs are presenting and determining whether or not that provides a reasonable basis for proceeding he's not here she is not assessing the the evidence  fandom's evidence there's no way credibility but your grant and i slap if the defendant's evidence supporting the motion defeats plaintiff's attempt to establish evidentiary support for the client to feature but not that's that's that's not the things you're talking about that's to if you look at that evidence and it completely calls the question it's not isness and the evidence and determining oh i think they're right and or maybe they're right that's not what the judge is supposed to do i believe i believe that you're supposed to look at all of the evidence including the including the videos and where the plaintiffs says i think this you know that is irrelevant with regard to the standard of a  whether you may be overheard which is an objective thing you know are you in a situation where maybe overheard i want to turn and just very briefly to the invasion of privacy claim because it's slightly different and the court essentially  that well you know geez you're recording by you're recording a conversation to establish invasion of privacy you have to have an intrusion into a private place conversation or matter there is no intrusion here these are these were mentioned they were friends they're talking about litigation or adversaries talking about something specific and the case law really focuses on where these this intrusion takes place so you have the  case in the miller case where people were trying to get into a doctor's office they're going into a home to film paramedics at work and those are those are potential invasion of privacy then you have the wilkins case which is a public restaurant you have  in case which i think is very instructive showmen says there's an accent but i side of the road you have paramedics helping the victims on the side of the road there's no invasion of privacy with regard to what you're listening to a recording but once they go into the ambulance the helicopter which is going to life flight the people then there is there may be an expectation of privacy if the whipple declaration saying that they stopped conversing when anyone came near specifically he said i felt that our discussion discussion was kept to between ourselves and any time a waiter or a patron came to or by the table we stopped talking about anything of substance which is completely be lied by the video but but but that's that's in his declaration and that's what the declaration says so if they in fact stop conversing when someone came near with that ill in your view meet that requirement that they had no reasonable expectation of absolutely he likelihood is small but the question is are they in a situation where they are you know where there is a reasonable expectation that they may be overheard but that's the part i mean you actually are  this under under these facts you can't go into a public restaurant that is with bench seating open five to ten patrons and have an restaurant we have to look at the at the at the factual situation we can't just say it's a public place and therefore you because you could conceivably be overheard then you have no expectation of privacy even your knowledge in that you have to take a look at the particular circumstances of the of the conversation and where it took place you can't just do a broad blush brush it's impossible to have any privacy in this work well it's a question of whether a reasonable expectation and  where you have it for example where you have an open open seating with people around you i believe that that is a you have to do the analysis and there is a reasonable there is no reason why expectation that you won't be overheard if you you know if you go to a back room where there is you know maybe a private room you're closing the door and it's a public restaurant but it's in a situation where i think it's a completely different but it's not completely secluded different situation and you know there are those clearly are not the facts in this case but that but there the issue is really is that a reason that your theory under your interpretation of the law if there is a private dining room but it's not completely secluded from the public area and there's a doorway that leads to the public area and the doorway is not closed what would be your theory of whether or not there's a reasonable expectation that the conversation may be  facts of this case a public restaurant open seating bench seating that there was you know the facts of the case and that's not per se rule so correct so are you we have to look at the facts in each case and judge s know that's why we have appeals you know there can be err if you you know if you make an error and you you know either misapply the law or don't look at all the evidence for example he didn't look at the evidence and the law requires him to look at all the evidence did not mention it in his analysis but that might be because he didn't consider it very important it may be so your position that he did not look at the evidence is baseless that just because the judge fails to mention something that it's not being considered as a difference i think  lower court judge abused his discretion when he actually did consider the whipple declare declaration as well as the first a minute complaint and that he also did not obviously consider all of the evidence that was presented  on this case i'd like to briefly first of all talk about something that was just discussed the the judge in his decision did say that he considered all the evidence that was submitted by both parties to include both the video and the declaration of the appellant as well as the whipple declaration so as you guys were discussing earlier he did consider all of the evidence what is  position of what a district judge in a circumstance confronted with a motion what should the judge consider on the second step yes the josh should consider pursuant to section four twenty five point sixteen b to consider all pleadings and any supporting affidavits that are submitted both to support or oppose an antisemite motion and so the judge is allowed to consider pleadings which look at the complaint in order to decide to determine whether or not the cause of action was are actually stated there along with a declaration or an affidavit that submitted to to show that the facts are supported by legitimate  facts that could be looked at to determine whether or not there is a problem facia case that what case that you were lined up to support your argument that it was proper for the court to consider the complaint in making it that go the other way it didn't go the other way and then that particular case the judge did make a ruling that it was not proper to consider the amended verified complaint but the reason for that was the fact that that complain had been drafted after they had had some hearings on the motion and the judge said well you can't submit additional information or additional evidence for me to consider and in fact this first amid this amended complaint that the plaintiff in that case was trying to submit was not before the court but i think the court then also said you were supposed to consider the original complaint either but but does this does this issue matter in this case because if the whipple declaration is something that the district judge could consider and i think counsel for mr rudolph to sort of said that that he doesn't have a problem with that do we even need to deal with this first amended complaint issue because does it add anything that is not obviously there are two prongs that need to be addressed by a court when they are addressing an anti slab motion in the first prong being that they have to show that the private she case that there is a showing of an act or the cause of action arises out of further and or exercising the right to petition or the right to freedom of speech and his argument that you know before getting to that first prong that the the law does allow the court to look at as a matter of law if if the action that's actually done as a matter of law is a legal then it's not protected under the anti slapp statute and you actually don't even get to do the first first  that that would mean that we did this or read the n t slap provision because there are plenty of could simply always of or that there are some in illegal conduct and that would be the end of it what we would disagree with that because the court in flatly basically states a showing required to establish conduct is a legal as a matter of law is either through the defendant's concession or by uncontroverted or conclusive evidence here we don't have the defendant or the appellant you know conceding that they have violated the law but we do have uncontroverted and conclusive evidence that was in the record that was presented to the district court you've got the declaration of both whipple and rudolph basically and if the court were to hold obviously that the first prong you know was met then of course we go to the second prong which is you know the issue of the playing of here she has me establishing that they have the probability of success in establishing that they can they can establish a private facia case now it's important to to know the standard for the second prong requires that  probability and a minimum level of legal legal sufficiency and try ability so in this pronk you know all the plain of hastert show is is to show that there are some basis legal basis for actually proceeding on their cause of action and we believe that the appellate did so in this case also in considering this prog you cannot the court cannot weigh the credibility or comparative probative strength or competing evidence but should grant the motion if by a matter of law the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidence three support for the claim appellant a rgued basically in essence trying to get this court and wanted to get the lower court to actually weigh the evidence between the two parties by looking at the videotape and rudolph's declaration to say that those were the use of the objective standard in in establishing the confidentiality of the conversation versus what whipple stated in his declaration which he that the opponent has argued is more subjective so in this case we have to look at the evidence we have minimal standard of marriage and that's the stare that needs to be followed so i'd like to talk about the the penal code section six thirty two clean the the issue there is that the conversation has to be confidential and appellant was right in reading with the law states a confidential conversation is confidential under section thirty two if a party to that conversation has an objective lee reasonable expectation that the conversation is not being overheard recorded now the court and lieberman again said expressively that the presence of others does not necessarily make an expectation of privacy objective and reasonable but it prevents it presents actually a fact of a question of fact for the jury to decide and so in this case you know the fact that when you look at the whipple declaration and you have to consider all admissible evidence in the favor of the plaintiff in this case that's true it would it would show that we met the prime facia case to establish his cause of action first of all i'm whipple's declaration he considered and stated that they were longtime friends will also believe that the conversation was not capable of being overheard by other patrons he did indicate in his declaration that when people approach they stop talking about things of significance they didn't say that they stopped talking but things of signet difficult so he also took steps as as indicated in his declaration to keep it confidential by by actually lowering his voice or stop talking when when people approach he was clearly and stated so in his declaration was not aware that he was secretly being recorded he also stated that he would not have agreed to the meeting had he known that it was going to be recorded and in fact he agreed to it because rudolph the appellant had to sure of him that the only reason that he had been sued was only because of his position as president of quo what's your response to opposing counsel stops at the nation that those subjective sentiments are not pertinent that we look at the objective circumstances and a reasonable person would not have thought that the conversation would be private in a public restaurant where other people were present what's your response to that but again going back to what the standard is for the court to follow they can't weigh the credibility or the probative value of  in this case is the correct standard as far as looking at the objectivity of the of the circumstance the court like i said again must look at the fact that it's in a public place and looking at all of this those things is a question of a fact that a jury has to determine which in this case with would mean that you know the court was correct and denying the anti slant motion as to as to their particular cause of action can you direct your offensive that the intrusion was highly offensive and in most of the cases that i was looking at it curzon hospital rooms or bedrooms are places where there truly is sort of this heightened sense of privacy how is this even if you get through all the other hurdles how is this highly offensive why does this satisfy that standard well there is no case law that's directly on point for our particular situations as far as the facts are concerned because of the like you stated correctly the other cases deal with other situations in a person's private home however and in our situation the fact if we go back to the actual act of what occurred which was his recording  the appellant's recording of the conversation without the consent or knowledge of of mr whipple that in and of itself is offensive and in fact the california legislature thought so because they passed the california penal code section six thirty does that make it outrages i believe that it would because they they actually made that a criminal kind of act in order to do that and attached also you know monetary damages saying somebody driving too fast is one of the you know it's a violation of the law that is highly offensive and the fact that somebody having a conversation without the expectation of it being recorded to later find that  out could be highly offensive and the case you know where you can't control the dissemination or how you're presuming that information because you are not aware of it being recorded makes a difference and as far as your privacy going back to the invasion of privacy claim and just to touch on that again that if you look at the declaration of of whipple he establishes that he had some expectation of privacy even though it occurred in a restaurant and i know appellants have  know cited to the wilkins case but that one is distinguishable from ours because and that they were in a restaurant they were in a public place they could be overheard but they were discussing business matters versus personal things which is the difference and so the heighten expectation of privacy also the the parties in that case they were talking about business they also stated they had no they had no intentions of necessarily keeping it quiet they had talked about this kind of stuff in public before so was a different circumstance as as from the one that we have here in this case and so i believe that that case is distinguishable and i have run out of time right thank you counsel the first addressed the lieberman case which was brought up which counsel indicated stood for the proposition that if somebody else is present it doesn't automatically mean that there is no expectation that you might be overheard or circumstances and chamberlain i'm sorry in leiberman are completely different that that was a situation where were a person a patient and a guest went into a doctor's office and so the fact that a guest was present in the room did not did not  negate the possibility that that could be a confidential communication i compare that case with the cases that we cite wilkens davis and chamberlain davis was a conversation in a in a hotel lobby public place as a matter of law no violation chamberlin was a i believe a store a tire store no violation those are public places you do have to under you have to do and look at what the objective evidence as to  not do not matter and then finally with regard to the highly offensive question that the that you want to raise you know our position obviously is that there was no highly offensive action here and that if you look at that if you look at those are places that are public where there is no invasion and then you compare that with the case and the miller case scotsmen case where people are invading private places like homes doctor's office etc that there is a distinction and that  this case is much closer to the to the public places where there could be no invasion so our youth in the you with the opperman case from the northern district of california that's interpret ing highly court looks at this and makes an initial determination as to whether that is highly offensive and there are a number of cases i mean a number of cases where they decided you know as a matter of law it's not highly offensive  what they were discussing that the comment was it wilkins they were talking business and this is they were talking person they were talking anything personal here their whole thing that they were talking about is the litigation and what was happening with the with the safari club which is specifically a matter in dispute between the parties opposing sides so you know if somebody is willing to talk to their opponent and talk about that litigation things that could be asked in deposition things that are not he lured him there based on the friendship and the assurance that he was on the sued because he was president you would think that would be that a reasonable person would strongly object to being lured in that way i believe that if you're an opponent even if you're a friend if you're an opponent of the occasion and you're not aware that that could be you know that those are missions that could be used against you shame on you