Montalti v. Catanzariti

Opinion

McCLOSKY, J. Appellant Assunta Montalti appeals from a summary judgment entered against her and in favor of respondent Luigi V. Catanzariti. She contends “A. The statute of limitations on a cause of action under Civil [sic Penal] Code sections 631 and 637.2 commences when the plaintiff [98]knew or should have known of the defendant’s unlawful acts [and] B. The trial court erroneously interpreted one phrase of Ribas v. Clark wherein the Supreme Court was discussing not the statute of limitations but an issue of judicial privilege.”

Ms. Montalti filed suit against Mr. Catanzariti on May 28, 1985. In her amended complaint she alleged that Mr. Catanzariti had eavesdropped on her conversations in violation of section 631 of the Penal Code “[c]ommencing in March, 1982, and continuing for several months thereafter.” The eavesdropping took place while she and Mr. Catanzariti were married and living together, and she discovered the acts on December 5 and 6, 1984, in the course of dissolution proceedings. She sought recovery of the civil penalty of $3,000 for each violation, pursuant to section 637.2 of the Penal Code.

Mr. Catanzariti made his motion for summary judgment on the ground that the suit was barred by the one-year statute of limitations stated in Code of Civil Procedure section 340. The trial court, relying on what it characterized as dictum in Ribas v. Clark (1985) 38 Cal.3d 355, 365 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417], granted Mr. Catanzariti’s motion.

In Ribas v. Clark, supra, 38 Cal.3d at page 365, the Supreme Court stated in connection with its discussion of the Civil Code section 47 privilege: “Because the right to such an award [pursuant to Penal Code section 637.2] accrues at the moment of the violation, it is not barred by the judicial privilege.”

As the trial judge recognized, the Supreme Court did not address the statute of limitations in Ribas v. Clark. Its statement referred, rather, to the fact that actual injury need not be proved in an action under Penal Code section 637.2. Its statement is therefore not controlling on this issue. (Ginns v. Savage (1964) 61 Cal.2d 520, 524, fn. 2 [39 Cal.Rptr. 377, 393 P.2d 689].)

The one-year statute of limitations for “[a]n action upon a statute for a penalty” (Code Civ. Proc., § 340, subd. (I))1 applies to Ms. Montalti’s cause of action. The award of $3,000 for each violation is not based upon actual injury. (Pen. Code, § 637.2, subd. (a); Ribas v. Clark, supra, 38 Cal.3d at p. 365.) The statute is, therefore, a provision for a penalty. (G.H.I.I. v. MTS, Inc. (1983) 147 Cal.App.3d 256, 277-278 [195 Cal.Rptr. 211, 41 A.L.R.4th 653].)