Morales v. Field, DeGoff, Huppert & MacGowan (1979)

PATRICIA D. MORALES, Plaintiff and Appellant, v. FIELD, DeGOFF, HUPPERT & MacGOWAN, Defendants and Respondents.

(Opinion by Scott, J., with White, P. J., and Feinberg, J., concurring.)

COUNSEL

Fleischmann & Farber, Hartly Fleischmann and Jay Richard Strauss for Plaintiff and Appellant.

Wilson, Elser, Edelman & Dicker, Kroll, Edelman, Elser & Wilson, Ralph W. Robinson and Elliott M. Kroll for Defendants and Respondents.

OPINION

SCOTT, J.

Patricia Morales appeals from a judgment of dismissal of her complaint following the sustaining of respondents' demurrers without leave to amend, and from the granting of respondents' motion for judgment on the pleadings. Appellant's complaint alleges damages resulting from a breach of duty owing to her by respondent law firm, Field, DeGoff, Huppert & MacGowan.

Appellant Patricia Morales is the adult daughter of Beatrice S. Dennis, who died in September 1969, and Gordon W. Dennis, who died in 1975. This lawsuit involves events which occurred during the probate of Beatrice's estate. When Beatrice died, she left a will which bequeathed her community property to her husband, Gordon, and her separate property to a testamentary trust of which Gordon was life beneficiary and Patricia the remainderman. Wells Fargo Bank was named executor and trustee. To represent it in that capacity, Wells Fargo retained respondents Field, DeGoff, Huppert & MacGowan, who had been the Dennis family's attorneys for many years and who drafted Beatrice's will. After Beatrice's death, respondents sent appellant a letter on October 9, 1969, which stated: "There is no action required to be taken on your part in connection with the hearing or further probate proceedings." [99 Cal. App. 3d 312] Respondents sent a second letter on October 15, 1969, which stated: "... we will keep you advised if anything unusual arises during the probate administration. [¶] Since all aspects of probate administration will be under court supervision and subject to court orders, you should feel reasonably assured that your interests will be protected."

Appellant's allegations that respondent attorneys for the trustee breached a duty owing to her as a beneficiary of her mother's estate flow from two transactions which will be discussed separately.

The Hibil Transaction

In March of 1969, shortly before her death, Beatrice guaranteed certain unsecured personal loans of approximately $335,000, made jointly and severally to three shareholders of Hibil, Inc. by the Chartered Bank of London. Gordon was one of those three shareholders; the money was borrowed to provide initial financing for the operation of Hibil. On November 25, 1970, Wells Fargo as executor filed a "Petition for Instructions Authorizing Executor to Execute Guarantee and Compromise of Claim." The petition was prepared by respondents. According to the petition, as part of a compromise and settlement of its claim against Beatrice's estate, Chartered Bank had agreed to refinance the original promissory notes guaranteed by Beatrice. Hibil, Inc. was to be the borrower, with each of Hibil's original three shareholders and Beatrice's estate coguarantors of the loan. Wells Fargo as executor sought authorization to execute a guarantee of that loan; the trial court authorized and approved Wells Fargo's request on December 10, 1970.

Appellant alleges that respondents breached a duty owed to her when they prepared Wells Fargo's petition for permission to execute the Hibil loan guarantee without notifying her of the proposed transaction, and without disclosing to her and to the court that respondents represented not only the executor but also Hibil, Inc., Gordon, and the other two stockholders of Hibil. Appellant also alleges that as a result of that guarantee the estate lost a right of subrogation and became entitled instead only to a pro rata contribution from the three other coguarantors for its payments on the guarantee. She further alleges that the estate made more substantial payments on the guarantee than did the other guarantors, and that Hibil made cash distributions to the shareholders, no part of which was paid to the estate. [99 Cal. App. 3d 313]

The guarantee was again before the court when it considered Wells Fargo's petition for settlement of the first account filed on July 26, 1972. That petition set forth in detail the Chartered Bank of London's claim against the estate based on Beatrice's original guarantee, and the compromise of that claim accomplished by the Hibil loan guarantee. Appellant had notice of this petition. No objections to the petition were filed by appellant; no appeal was taken from the order settling the account.

It is first necessary to consider whether appellant can now complain of respondents' participation in the Hibil matter. [1] An order settling an executor's account is res judicata and conclusive against a subsequent claim of liability against the executor for negligence or fraud, and such determination is binding on all the parties interested in the estate. (Carr v. Bank of America etc. Assn. (1938) 11 Cal. 2d 366, 371 [79 Cal. Rptr. 1096, 116 A.L.R. 1282]; Prob. Code, § 931.) A logical corollary of that rule is that such an order is also res judicata against a subsequent claim against the executor's counsel for negligence or fraud.

However, on a sufficient showing of extrinsic fraud, that order may be set aside in an equitable action. Perna v. Bank of America N.T. & S. Assn. (1938) 28 Cal. App. 2d 372, 376 [82 P.2d 605].) Since no appeal has been taken from the order granting the settlement of the first account, appellant can only prevail if she has alleged facts constituting extrinsic fraud. [2] Extrinsic fraud which will warrant a court of equity in setting aside a judgment or decree consists of fraud which prevents a real trial of the issues involved in the case, such as conduct which prevents the injured party from receiving notice of the action or which causes the absence of necessary witnesses. (Ringwalt v. Bank of America etc. Assn. (1935) 3 Cal. 2d 680, 684 [45 P.2d 967].)

The failure to disclose to the court an attorney's dual representation in a probate proceeding was held to be extrinsic fraud in Potter v. Moran (1966) 239 Cal. App. 2d 873 [49 Cal. Rptr. 229]. In Potter one law firm represented both the trustee of a testamentary trust and the guardian of the estates of two minors, life beneficiaries of the trust. The probate court was not informed of this dual representation before it approved certain accounts of the trustee, including payment of attorneys' fees. Some years later, the residuary beneficiary of the trust brought an action seeking inter alia an annulment of the orders approving the account and the restoration of fees. The complaint also alleged the trustee [99 Cal. App. 3d 314] had been negligent in the sale of certain stocks. The court stated (at p. 877): "It is imperative that in matters of probate, and especially so in matters heard ex parte, that the court be fully informed as to all facts that might influence the decision to be made. There is an affirmative duty to furnish such information, and the court will properly assume that nothing material to the matter in hand has been concealed ...," and held the failure of the trustee and attorneys to disclose this dual representation to the court amounted to extrinsic fraud on the court. Therefore, the court vacated the orders and ordered a de novo reconsideration of the accounts, to determine whether fees were reasonable and whether the trustee was negligent.

[3] Potter involved counsel's representation of a trustee and the guardian of the beneficiaries, while this case involves the dual representation of a trustee and a third party involved in a transaction. Nonetheless, it appears that the failure to disclose this dual representation to the court amounts to extrinsic fraud according to Potter, as the court apparently was not fully informed as to all facts that might influence its decision. We thus conclude that the court order of July 26, 1972, settling the first account does not preclude appellant by res judicata from now alleging that respondents breached their duty to her.

We must now determine whether appellant's complaint alleges facts sufficient to state a cause of action against respondents. [4] In determining the sufficiency of a complaint against a general demurrer, we consider the demurrer as admitting all material and issuable facts as properly pleaded. "'[T]he rule is, that if upon a consideration of all the facts stated it appears that the plaintiff is entitled to any relief at the hands of the court against the defendants, the complaint will be held good, although the facts may not be clearly stated, or may be intermingled with a statement of other facts irrelevant to the cause of action shown, or although the plaintiff may demand relief to which he is not entitled under the facts alleged.'" (Scott v. City of Indian Wells (1972) 6 Cal. 3d 541, 549 [99 Cal. Rptr. 745, 492 P.2d 1137], citing Matteson v. Wagoner (1905) 147 Cal. 739, 742 [82 P. 436].) [5] A judgment on the pleadings is similar to a judgment following the sustaining of a demurrer, and the standard of appellate review is the same. (Baillargeon v. Department of Water & Power (1977) 69 Cal. App. 3d 670, 676 [138 Cal. Rptr. 338].)

[6] It is clear that the attorney for a trustee may be held liable to the beneficiary of the trust when he actively participates in a breach of [99 Cal. App. 3d 315] trust. (See 4 Scott on Trusts (3d ed. 1967) § 326.4, p. 2568; 7 Witkin, Summary of Cal. Law (8th ed. 1974) Trusts, § 89, p. 5449; see also Andrews v. Tuttle-Smith Co. (1906) 191 Mass. 461 [78 N.E. 99, 101] [attorney liable for breach of trust when he actively participated in fraudulent conversion]; In re Bond & Mortgage Guarantee Co. (1952) 303 N.Y. 423 [103 N.E.2d 721, 726] ["The basic vice is the existence of a personal interest, entangling their private claims with those of their beneficiaries."].)

Whether the counsel to a trustee may be held liable to the beneficiary of the trust for negligent conduct which does not amount to active participation in a breach of trust is less clear. [7] However, in Goodman v. Kennedy (1976) 18 Cal. 3d 335 [134 Cal. Rptr. 375, 556 P.2d 737], the Supreme Court stated that whether an attorney can be held liable to a third person not in privity depends first on whether the attorney owed a duty to that third person. Whether the attorney owes such a duty is a question of law and depends on a judicial weighing of the policy considerations for and against the imposition of liability under the circumstances. The court stated (at pp. 342-343): "'The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.'"

Among the allegations of appellant's complaint, which this court must accept as true, are assertions that at the time Wells Fargo petitioned for authorization to execute the guarantee, respondents were acting as counsel not only for Wells Fargo, but also for Hibil, Inc. and its three principal shareholders, including her father. Appellant also alleges she received no notice of the initial hearing on the execution of guarantee, and was not informed that it could alter the estate's liability to Chartered Bank. She further alleges respondents did not inform Wells Fargo or the court that they also represented Hibil. There is nothing in the court's order authorizing execution of the guarantee to suggest that the court was aware that respondents represented both Wells Fargo and Hibil. [99 Cal. App. 3d 316]

The Hibil transaction, while perhaps not intended to affect appellant directly, nevertheless indirectly affected her in that it affected the estate of which she was a beneficiary. As this appeal follows the sustaining of a demurrer, we must accept as true appellant's allegations that the Hibil transaction was detrimental to the estate and to her interests therein. In any event, when the attorney for a trustee and executor also simultaneously represents third parties involved in transactions with the estate, the potential for harm to an unknowing beneficiary is readily apparent.

It is true that in her several amendments to her complaint appellant has not alleged that respondents had any personal interest in the Hibil transaction, nor that they actually improperly benefitted in some way from the execution of the guarantee. [8] However, in all matters connected with his trust a trustee is bound to act in the highest good faith toward all beneficiaries, and may not obtain any advantage over the latter by the slightest misrepresentation, concealment, threat, or adverse pressure of any kind. (Civ. Code, § 2228; Jones v. Stubbs (1955) 136 Cal. App. 2d 490, 499-500 [288 P.2d 939].) [9] An attorney who acts as counsel for a trustee provides advice and guidance as to how that trustee may and must act to fulfill his obligations to all beneficiaries. It follows that when an attorney undertakes a relationship as adviser to a trustee, he in reality also assumes a relationship with the beneficiary akin to that between trustee and beneficiary. In contrast to the third party asserting a claim in Goodman, appellant here was not someone with whom respondents' client, the trustee Wells Fargo, was to negotiate at arms' length.

Finally, to require at a minimum that a trustee's attorney inform beneficiaries of his dual representation in transactions involving the trust can only have salutary results, such as the elimination of the need for lawsuits similar to the instant action.

Under the principles of Goodman, we conclude that respondents owed a duty to appellant to disclose that they represented not only the trustee executor, but also Hibil and the stockholders of Hibil at the time the trustee executor sought authorization to execute the loan guarantee.

Respondents urge that although appellant was not represented by separate counsel on December 10, 1970, when the court authorized the execution of the guarantee, she was so represented in July of 1972, when she received notice of the petition for settlement of the first account. [99 Cal. App. 3d 317] Based on these facts, respondents urge that in her dealings with the estate at that time, appellant was not relying on any duty which they may have owed her in their capacity as counsel to the executor. Respondents argue that appellant was in reality dealing at arms' length with them. The issue of reliance is part of the broader question of causation, and whether respondents' failure to make the required disclosure caused damage to appellant is, of course, a question of fact, which cannot be resolved in this appeal. (Ishmael v. Millington (1966) 241 Cal. App. 2d 520, 529 [50 Cal. Rptr. 592].) In June of 1971 appellant did retain separate counsel to represent her in a dispute with her father, which we label the Avon transaction. That dispute, to be discussed in more detail hereinafter, revolved around whether certain stocks were community property or Gordon's separate property. The trier of fact must decide whether appellant at that time had stopped relying on respondents as attorneys for the estate relative to all other transactions of the estate, including the Hibil matter.

We conclude that the court erred in sustaining the demurrer relative to the Hibil transaction.

The Avon Transaction

In June of 1971 Wells Fargo and Gordon filed a petition for "Determination of Entitlement to Distribution of Estate and Petition for Instructions" to determine the character of certain property subject to the probate proceedings, particularly some 2,000 shares of Avon stock, which had increased to 4,000 shares by a stock split after Beatrice's death. Patricia retained attorney Albert J. Horn to represent her in opposition to the above petition. Wells Fargo and Gordon were represented by respondents.

In December of 1971 Patricia and Gordon entered into a written agreement regarding the Avon stock. The agreement was drafted by Patricia's attorney. Patricia agreed to stipulate that the stock was community property, provided that Gordon would make a will bequeathing it to her. The agreement provided that upon receipt of any of the Avon shares from the executor or the present security holder, Gordon was to deposit the stock with Wells Fargo as custodian. The agreement further provided that Gordon and Patricia would execute an "appropriate custodial agreement" which was to provide in part that the stock was not to be sold without the written consent of both. Gordon also agreed not to encumber any of the stock held by Wells Fargo under the custodial [99 Cal. App. 3d 318] agreement. The court ordered the executor to treat the stock as community property. Patricia's attorney prepared a proposed custodial agreement, which he sent to respondents for approval. Respondents returned the proposed agreement with suggested changes on August 23, 1972. The agreement was never executed.

Sometime in October of 1974 the stock was delivered by Wells Fargo to Gordon, who apparently then pledged it as collateral for a loan from the Menlo Park branch of Wells Fargo. The stock was ultimately sold to pay off that indebtedness during the probate of Gordon's estate.

[10] Appellant makes substantially the same contentions as to respondents' failure to fulfill their duty to appellant as she did relative to the Hibil transaction. However, in the proceeding involving the Avon stock, appellant and her father, Gordon, were disputing the characterization of the Avon stock as community property, and were clearly adverse.

An attorney has no legal duty of disclosure to a third party who is the adverse party in an adversary proceeding. (Parnell v. Smart (1977) 66 Cal. App. 3d 833, 837 [136 Cal. Rptr. 246]. Respondents represented Gordon, and appellant was represented by her own counsel. An adverse party is not an intended beneficiary of the adverse counsel's client. (Norton v. Hines (1975) 49 Cal. App. 3d 917, 921 [123 Cal. Rptr. 237].) Clearly, respondents had no duty to appellant with respect to the stock transaction.

Appellant argues that although respondents were representing her father in the Avon dispute, they nevertheless still owed her some duty because they simultaneously continued their status as counsel to the trustee. [11] Whether the attorney for an administrator of an estate may act for one of the heirs as against the other heirs in an adversary proceeding relating to the property of the estate depends on the circumstances of the particular case, and whether there is any conflict between the interests of the estate and those of the heir in respect of the matter involved. (McCabe v. Healy (1902) 138 Cal. 81, 91 [72 P. 359]; Fairchild v. Bank of America (1961) 192 Cal. App. 2d 252, 258 [13 Cal. Rptr. 491].) Here the trustee had no interest in whether the stock was community or separate property. Further, appellant made no objection to the representation of her father by respondents at the time of the dispute over the Avon stock; it appears that she is foreclosed from objecting [99 Cal. App. 3d 319] to that representation now. (See Jones v. Lamont (1897) 118 Cal. 499, 504 [50 P. 766].)

The court properly sustained respondents' demurrer relative to the Avon stock transaction.

Judgment is reversed as to appellant's causes of action relative to the Hibil transaction. Judgment is affirmed as to appellant's causes of action relative to the Avon stock transaction. Each party to bear his own costs.

White, P. J., and Feinberg, J., concurred.

People v. Garvey [99 Cal. App. 3d 320]

[Crim. No. 18872. First Dist., Div. Four. Dec. 3, 1979.]

THE PEOPLE, Plaintiff and Respondent, v. PETER JAMES GARVEY, Defendant and Appellant.

(Opinion by Christian, J., with Caldecott, P. J., concurring. Separate dissenting opinion by Poche, J.) [99 Cal. App. 3d 321]

COUNSEL

Alan M. Caplan, under appointment by the Court of Appeal, Bushnell, Caplan & Fielding for Defendant and Appellant.

George Deukmejian, Attorney General, Robert H. Philibosian, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, Clifford K. Thompson and R. Gordon Baker, Jr., Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CHRISTIAN, J.

Peter James Garvey appeals from a judgment of imprisonment which was rendered after a jury found him guilty of assault by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)).

After spending some hours drinking in a bar, appellant attacked without warning another patron who was making ready to leave. The victim fell to the floor and appellant kicked him in the head. Other patrons subdued appellant and the bartender ordered him to leave. On his way out appellant passed the victim, who was still on the floor, and again kicked him in the head. The victim suffered serious injuries.

While appellant was in jail awaiting trial, appellant wrote to a friend. The letter, which was proved at trial through the introduction of a copy, contained a narrative of the events of trial: "[I] just walked up to this guy and nutted up on him, must have caught him by surprise as light as I am, anyhow, I started kicking him in the head, then quit and went out of the front door and the man was on us. Charged with A.D.W. The weapon is my shoe."

Before trial, appellant moved to suppress the letter on the theory that its interception was a violation of "First and Fourth Amendment rights." The court reserved its ruling and during the trial took evidence [99 Cal. App. 3d 323] out of the hearing of the jury concerning the events which brought the letter into the possession of the prosecutor. The motion to suppress evidence was denied.

Defense counsel then objected to evidence based on a copy of the letter (the original having been sent on to the addressee) under the best evidence rule. Upon a showing that the addressee of the letter denied receiving it and stated "that even if I had, I sure wouldn't turn it over to you." The court ruled the copy admissible under exceptions to the best evidence rule (Evid. Code, §§ 1501, 1502). fn. 1

[1] Appellant contends, relying on Procunier v. Martinez (1974) 416 U.S. 396 [40 L. Ed. 2d 224, 94 S. Ct. 1800], and related cases, that the letter should have been suppressed on the ground that it was obtained for the prosecution as the result of an unconstitutional program of mail censorship. This contention cannot be sustained. The letter was copied as authorized by section 1151 of the Humboldt County Administrative Code, pursuant to a program of monitoring all incoming and outgoing prisoner mail. The purpose of the monitoring operation is to protect jail security. This program is consistent with the holding of the United States Supreme Court in Procunier v. Martinez, supra, (see 416 U.S. at p. 413 [40 L.Ed.2d at p. 240]).

The jailer monitoring outgoing mail copied appellant's letter because it contained an offer to provide the addressee, who was then incarcerated in Contra Costa County, with a pistol. The jailer did not censor the letter; after taking copies which ultimately reached the prosecutor and defense counsel, he posted the letter to the addressee. These actions by the jailer did not constitute a violation of First Amendment rights.

[2] Appellant's claim of the Fourth Amendment violation is also without merit. Except where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him. (People v. Manson (1976) 61 Cal. App. 3d 102, 152 [132 Cal. Rptr. 265], cert. den. 430 U.S. 986 [52 L. Ed. 2d 382, 97 S. Ct. 1686].) [99 Cal. App. 3d 324]

Appellant contends that use of a copy of the letter, in lieu of the original, should have been precluded under the best evidence rule (Evid. Code, § 1500). But there was proof that the addressee had received the letter in the Contra Costa County jail. His cell was then searched pursuant to a warrant and the letter was not found. This evidence adequately established the unavailability of the document.

[4] Appellant contends that it was improper for the court to allow proof of part of the contents of the letter after the defense had rested its case. The court admitted the evidence at that late stage of the trial on the dual ruling that the material was proper rebuttal evidence and that in the exercise of discretion the prosecution's case in chief should be reopened. The first theory of admission was doubtful at best as the trial court recognized. We do not reach the question because the second alternative basis of the court's ruling must be sustained as an exercise of discretion under Penal Code section 1094. fn. 2 The evidence was highly pertinent and it was offered as soon as the necessary foundational showing could be made. Appellant had full opportunity to respond to the material taken from the letter. There was no abuse of discretion. (Cf. People v. Demond (1976) 59 Cal. App. 3d 574 [130 Cal. Rptr. 590].)

Finally appellant contends that in pronouncing judgment the court should not have considered factors personal to appellant, as authorized by rule 421(b), California Rules of Court. This contention must be rejected as contrary to governing authority. (See People v. Cheatham (1979) 23 Cal. 3d 829 [153 Cal. Rptr. 585, 591 P.2d 1237].

The judgment is affirmed.

Caldecott, P. J., concurred.

POCHE, J.

I dissent.

The majority here concludes that the program of mail censorship at the Humboldt County jail does not violate the Fourth and First Amendment rights of pretrial detainees; I disagree.

Appellant was incarcerated in the Humboldt County jail because of his inability to post bail. While awaiting trial he wrote a letter to a [99 Cal. App. 3d 325] friend who was then in jail at Martinez, California. Appellant was not informed that his letter would be subject to censorship nor were the regulations allowing censorship posted in the facility.

What appellant did not know was that the jail personnel routinely censored all incoming and outgoing mail except correspondence with courts, lawyers, holders of public office or the State Department of Corrections. Appellant's letter was censored by Deputy McLellan who testified that: "In censoring the mail I open letters and glance through them, looking for filthy language, anything that might catch my eye as far as jail security goes. Just glance through them, don't read every letter unless something catches my eye, and then I read the letter, and if I think appropriate, send a copy to whoever may be involved." The officer noticed a mention of a weapon, made a copy of the letter which he gave to his supervisor, and then sent the original to the addressee. Neither the appellant nor his correspondent were informed of Officer McLellan's actions.

At trial, the prosecution was allowed to introduce the copy of appellant's letter, but the portion which pertained to the weapon was excised.

Fourth Amendment Violation

Under California law, one appropriate test for determining the validity of a particular search and seizure made without the prior issuance of a warrant is whether the defendant exhibited a reasonable expectation of privacy, and if so, whether that expectation was violated by an unreasonable governmental intrusion. (North v. Superior Court (1972) 8 Cal. 3d 301, 308 [104 Cal. Rptr. 833, 502 P.2d 1305, 57 A.L.R.3d 155].) The foregoing principle was adopted by the California Supreme Court from the language of Katz v. United States (1967) 389 U.S. 347, [19 L. Ed. 2d 576, 88 S. Ct. 507], wherein the United States Supreme Court held that the government's activities in electronically listening to and recording the conversation of the petitioner in a public phone booth violated the privacy upon which he justifiably relied. The court concluded that the government's activities constituted a search and seizure within the meaning of the Fourth Amendment and that in the absence of a prior judicial approval the search and seizure were unreasonable. (Id, at p. 353 [19 L.Ed.2d at p. 583].) [99 Cal. App. 3d 326]

Our task--mandated by those decisions--is to determine (1) whether a pretrial detainee who has no notice that his sealed personal mail will be subject to censorship by jail authorities has a reasonable expectation that such correspondence will remain private, and, if so, (2) whether the government's acts of opening of the letter and copying it without notice to him are unreasonable governmental intrusions.

Rather than take this approach, the majority relies on People v. Manson (1976) 61 Cal. App. 3d 102, 152 [132 Cal. Rptr. 265] (cert. den. 430 U.S. 986 [52 L. Ed. 2d 382, 97 S.Ct. 1686]), for the proposition that "[e]xcept where the communication is a confidential one addressed to an attorney, court or public official, a prisoner has no expectation of privacy with respect to letters posted by him." The source of the Manson headnote fn. 1 is the 1919 decision of the United States Supreme Court in Stroud v. United States, 251 U.S. 15 [64 L. Ed. 103, 40 S. Ct. 50] (reh. den. 251 U.S. 380 [64 L. Ed. 317, 40 S.Ct. 176]), where it was held that the interception and use in evidence of certain letters tending to establish the guilt of a convicted federal prisoner charged with the murder of a prison guard did not violate the Fourth Amendment because the letters were "voluntarily written," "no threat or coercion was used to obtain them," and they came into possession of the prison officials under "established practice" designed to promote discipline of the institution. (Id, at p. 21 [64 L.Ed. at p. 111].) Stroud was decided 48 years before Katz, which recognized that the Fourth Amendment also protects a reasonable expectation of privacy. While Stroud has not been expressly overruled by the Supreme Court, its continued validity has been questioned. For example, Professor LaFave in his treatise on the Fourth Amendment, Search and Seizure (1978) (§ 10.9c, pp. 409-410), notes that Stroud arose in an era when it was generally accepted that prisoners had no constitutional rights, whereas it is now clear not only that prisoners are entitled to the protections of the Fourth Amendment, but that the scope of its protection has been significantly extended in the many years since Stroud was decided. "In particular," LaFave emphasizes, "it is no longer essential to establish that there has been an invasion of a constitutionally protected area; under Katz v. United States, the focus is upon whether the authorities violated a justified expectation of privacy." (Id, at p. 409.)

Thus, in my view we are required to examine the scope of the Fourth Amendment's protection of a pretrial detainee. Simply asserting that "a [99 Cal. App. 3d 327] prisoner has no expectation of privacy with respect to letters posted by him" is not the type of analysis I think the Supreme Court had in mind. Such an approach in addition to ignoring the development of constitutional law since the Bird Man of Alcatraz murdered his prison guard is similarly anachronistic in failing to discuss changes in the California Constitution, especially the establishment of the right to privacy. (Cal. Const., art. I, § 1.) While the extent to which incarceration limits that right has not been definitively addressed by our courts, the Legislature has acted to guard it. Penal Code section 2600 protects convicted felons from unnecessary deprivation of their constitutional rights, including, of course, the right to privacy: "A person sentenced to imprisonment in a state prison, may, during any such period of confinement, be deprived of such rights, and only such rights, as is necessary in order to provide for the reasonable security of the institution in which he is confined and for the reasonable protection of the public." In construing this statute, the California Supreme Court emphasized that "... we have long since abandoned the medieval concept of strict 'civil death' and have replaced it with statutory provisions seeking to insure that the civil rights of those convicted of crime be limited only in accordance with legitimate penal objectives." (In re Harrell (1970) 2 Cal. 3d 675, 702 [87 Cal. Rptr. 504, 470 P.2d 640].) If the Legislature has provided for protection of the right of privacy of convicted prisoners, subject only to reasonable restrictions necessary for the security of the prison, a pretrial detainee is entitled to no less protection. To pretend otherwise is to pretend that Katz, Penal Code section 2600 and California Constitution, article I, section 1, do not exist.

There is absolutely no evidence that the appellant--or anyone else--was put on notice by Humboldt County jail officials that sealed correspondence would be subjected to censorship. There is no dispute: regulations as to prisoner mail censorship had not been posted in the jail for at least six months. Certainly, the appellant as a pretrial detainee, with no notice of the practices of the jail personnel toward inmate correspondence, had a justifiable expectation that his sealed personal mail would remain private.

The next question in accordance with North and Katz, supra, analysis is whether the opening of the mail without prior notice is an unreasonable governmental intrusion.

Lack of notice that the defendant would be subjected to random body cavity searches was the ground upon which the court in United States v. [99 Cal. App. 3d 328] Lilly (5th Cir. 1978) 576 F.2d 1240, held that the search of an inmate at a federal correctional institution was in violation of the Fourth Amendment. The court observed that body cavity searches were not unreasonable per se, and that although the government had shown its legitimate need for such searches on inmates who returned to the institution after an unsupervised work absence, the search of the defendant was "unreasonable because she was given no notice that her voluntary absences from the prison potentially would subject her to completely random body cavity searches." (Id, at p. 1246.) By a parity of reasoning the search of the appellant's letter in the instant case was unreasonable because he was given no notice that his correspondence would be subjected to random censorship, and that a copy of his letter would be made "if the officer felt it was 'appropriate.'"

Although other courts have reached contrary conclusions on the Fourth Amendment rights of prisoners, these decisions have generally relied upon the antiquated Stroud decision. (See, e.g., Smith v. Shimp (7th Cir. 1977) 562 F.2d 423; Hayes v. United States (10th Cir. 1966) 367 F.2d 216; see also, Annot., 52 A.L.R.3d 548.) Furthermore, the majority of those cases involved, at the very least, advance notice to the defendant that his mail would be subject to censorship. (See, e.g., State v. Matthews (1975) 217 Kan. 654 [538 P.2d 637] [defendant was notified at the time of booking]; Rennert v. State (1975) 263 Ind. 274 [329 N.E.2d 595] [defendant was provided with stationary with a warning printed on it]; United States v. Wilson (9th Cir. 1971) 447 F.2d 1 [it appeared from the meticulous avoidance of detail in the defendant's letter that he was aware that his mail would be screened].) The lack of advance notice in this case takes us out of the realm of such cases and into the area of a justifiable expectation of privacy and an unreasonable governmental intrusion. I would therefore hold that the opening of appellant's letter and the making of the copy without notice to the appellant constituted an unreasonable search and seizure within the meaning of the Fourth Amendment and that the copy of the letter should have been suppressed at appellant's trial.

Additionally and alternatively I would hold that the censorship here violated appellant's right to privacy under the California Constitution. This deprivation was not necessary in order to provide for the security of the institution within the meaning of Penal Code section 2600, because minimal notice of censorship could have prevented the intrusion while protecting the jail. [99 Cal. App. 3d 329]

First Amendment Violation

The majority also concludes that the Humboldt County practice (1) is not censorship and (2) is consistent with the holding in Procunier v. Martinez (1974) 416 U.S. 396 [40 L. Ed. 2d 224, 94 S. Ct. 1800]. I disagree with each of these conclusions.

The definition of "censorship" has never been limited to the actual striking of portions of a communication; "the phenomenon of censorship ... appears in a multitude of forms." (Taylor v. Sterrett (5th Cir. 1976) 532 F.2d 462, 469.) In Procunier v. Martinez, supra, the Supreme Court declared that the essence of censorship is "interference with ... intended communication." (416 U.S. at pp. 408-409 [40 L.Ed.2d at p. 237].) Such interference may be direct or indirect. For instance, in that case, prison authorities engaged in such censorship practices as refusing to mail or deliver prisoner correspondence, filing disciplinary reports which could lead to suspension of mail privileges, or placing a copy of the letter in the prisoner's file where it might be a factor in determining the inmate's parole date or his work and housing assignments. (Id, at p. 400 [40 L.Ed.2d at p. 233].) These practices illustrate censorship of prison mail both directly, by confiscation, and indirectly, by making use of the contents. (Taylor v. Sterrett, supra, 532 F.2d 462, 469.) Similarly, in the instant case, the practice of opening and making a copy of an outgoing letter from a pretrial detainee is censorship. Officer McLellan knew what he was doing and was candid: "In censoring the mail I open letters. ..." (Italics added.)

Secondly, I do not understand how this practice meets the requirements of Procunier v. Martinez, supra. That decision requires that the limitations on First Amendment rights of appellant and of his addressees must "be no greater than is necessary or essential to the protection of the particular governmental interest involved." (Id, at pp. 413-414 [40 L.Ed.2d at p. 240].) With no notice to the detainees that their mail will be opened and read, the system of censorship fails to meet the mandates of Procunier v. Martinez. fn. 2

Due Process Violation

Finally, the Humboldt County practice violates the appellant's due process rights under the Fourteenth Amendment as enunciated in Procunier v. Martinez, supra. There, the United States Supreme Court [99 Cal. App. 3d 330] specifically held that any decision to censor or withhold delivery of a particular letter must be accompanied by a minimum of procedural safeguards. (416 U.S. at p. 417 [40 L.Ed.2d at p. 243].) "The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a 'liberty' interest within the meaning of the Fourteenth Amendment. ... As such it is protected from arbitrary invasion." (Id, at p. 418 [40 L.Ed.2d at p. 243].)

There is no evidence in the record that the appellant was informed that his letter had been censored and copied. Appellant was given no opportunity to either protest the decision or decide not to mail the letter. Therefore, there is no need to argue about whether the procedural safeguards of the Humboldt jail met "minimum" standards. The Humboldt jail provided no procedural safeguards whatsoever. This practice violates the due process clause of the the Fourteenth Amendment.

Conclusion

In sum, the practice of randomly opening or copying the mail of pretrial detainees without notice to either the detainee or the addressee is a violation of both individuals' constitutional rights. As a consequence, the trial court should have suppressed the letter. Since this error is of federal constitutional dimension and because the contents of the inadmissible letter were incriminating, the judgment must be reversed; it cannot be said that the introduction of the letter was harmless beyond a reasonable doubt. (People v. Vargas (1973) 9 Cal. 3d 470, 478 [108 Cal. Rptr. 15, 509 P.2d 959]; Chapman v. California (1966) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 710-711 87 S. Ct. 824, 24 A.L.R.3d 1065].)

At the very minimum, a pretrial detainee should be afforded notice that while he is in jail awaiting trial a jailer will "open [his] letters and glance through them, looking for filthy language, anything that might catch my eye as far as jail security goes. Just glance through them, don't read every letter unless something catches my eye, and then- ... read the letter, and if ... appropriate, send a copy to whoever may be involved."

I would reverse the judgment.

FN 1. Evidence Code section 1501: "A copy of a writing is not made inadmissible by the best evidence rule if the writing is lost or has been destroyed without fraudulent intent on the part of the proponent of the evidence."

Evidence Code section 1502: "A copy of a writing is not made inadmissible by the best evidence rule if the writing was not reasonably procurable by the proponent by use of the court's process or by other available means."

FN 2. Penal Code section 1094: "When the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the Court, the order prescribed in the last section may be departed from."

FN 1. The above-mentioned quote in Manson, supra, at page 152, is from People v. Dinkins (1966) 242 Cal. App. 2d 892, 902-903 [52 Cal. Rptr. 134], which in turn cites Stroud.

FN 2. Convicted felons are informed of prison censorship regulations as a matter of course when they enter the state prison (Cal.Admin.Code, tit. 15, § 3131); a pretrial detainee deserves no less.