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THRIFTY-TEL, INC., Plaintiff and Respondent, v. MYRON BEZENEK et al., Defendants and Appellants. |
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OPINIONBY: CROSBY
OPINION: [*1563]
[***471]
CROSBY, Acting P. J. A
telephone long-distance carrier prevailed on fraud and conversion theories against
Myron and Susan Bezenek--whose teenage sons n1 employed computer technology in
their efforts to crack plaintiff's access and authorization codes and make long
distance phone calls without paying for them--garnering a judgment, including
[**2] attorney fees, just shy of $ 50,000. Defendants challenge the court's
determination that causes of action for fraud and conversion lie on these facts
and complain of plaintiff's failure to mitigate and prove damages. They also
contend that the court erred in calculating damages based on the company's own
tariff on file with the Public Utilities Commission (PUC). Finally, defendants
argue Civil Code section 1714.1 precludes damages based on conduct by a minor who
is not their child and, in any event, limits damages to no more than $ 10,000. n1 For convenience, we
will refer to defendants as "the Bezeneks" and their children, Ryan and
Gerry, by their given names. I
Thrifty-Tel,
Inc., provides long-distance telephone services. Subscribers' telephones are
programmed with a confidential access code and a six-digit authorization code that
directs calls into Thrifty-Tel's computerized switching network. n2 An
unauthorized user who knows both an access and an authorization code can make
long-distance calls without [**3] being charged for them. n2 Subscribers also
presumably had an assigned set of numbers that permitted access to Thrifty-Tel's
long-distance network from other phones, but this case does not involve the theft
of those numbers or any card or document bearing them. [*1564]
A
friend of the Bezeneks' children knew a confidential Thrifty-Tel access code.
During a three-day period in November 1991, Ryan, Gerry and some friends, using
the Bezeneks' home computer and modem, gained entry into Thrifty-Tel's system with
the code and conducted manual random searches for a six-digit authorization code.
They made approximately 90 calls, consuming roughly 24 minutes of telephone time
during the first 2 days. On the following day, Ryan and Gerry continued the search
alone, making 72 manual attempts to identify an authorization code over an almost
16-minute period. Through
its internal security system, Thrifty-Tel learned of the computer hacking almost
immediately. And by late November, the carrier identified the Bezeneks' [**4] home
as the source. Although Thrifty-Tel had the Bezeneks' address and telephone
numbers, it failed to contact them concerning the matter. After
a three-month hiatus, the Bezenek children resumed manual searches for an
authorization code. After several days and apparently some frustration with the
slow pace, Ryan acquired computer software to expedite the quest. On February 18,
1992, he used the program to access Thrifty-Tel's system and conducted rapid-fire
random number searches. He ran the program between six and seven hours, generating
over one thousand threehundred calls. Because Thrifty-Tel is a small carrier with
relatively few telephone lines, Ryan's automated calling overburdened the system,
denying some subscribers access to phones lines. Still,
Thrifty-Tel did not contact or complain to the Bezeneks. Instead, it filed this
action on April 1, 1992, seeking damages for conversion, fraud, and reasonable
value of services. The April Fools' Day lawsuit provided the Bezeneks' first
notice of their sons' computer hijinks. In a trial to the court, defendants
unsuccessfully sought judgment on the conversion and fraud causes of action,
arguing those remedies were not available [**5] on these facts. (Code Civ. Proc.,
§ 631.8.) Thrifty-Tel
offered no explanation for its failure to complain to the Bezeneks after the
November 1991 hacking episode. It presented no evidence of any actual losses,
either. Rather, plaintiff simply relied on the "unauthorized usage"
tariff in its PUC-approved rate schedule to establish damages. That [***472]
tariff, in effect, liquidates Thrifty-Tel's damages for computer hacking by
imposing a $ 2,880 per day surcharge, a $ 3,000 "set up fee," and a $
200 per hour labor fee. It also provides for attorney fees and costs [*1565]
incurred to collect the tariff. n3 Based upon this tariff, the trial court awarded
plaintiff $ 33,720 in damages and nearly $ 14,000 in attorney fees and costs. n3 Indeed, the Thrifty-Tel
officer primarily responsible for drafting the tariff testified it represents the
average cost of identifying computer hackers and lost revenues when customers
switch to another long-distance system because hacking impeded their phone use. II
Defendants
[**6] first contend the unauthorized use of confidential codes to gain computer
access does not give rise to a cause of action for conversion. They rely on the
historical underpinnings of the tort, which provided a remedy for the loss of
intangible property interest, but only if those interests are reflected in
something tangible that can be physically taken. (Moore v. Regents of
University of California (1990) 51 Cal. 3d 120, 134 [271 Cal. Rptr. 146, 793 P.2d
479, 16 A.L.R.5th 903].) For example, the value of a stock certificate is not
the cost of the paper, but the intangible interest it represents. When the
certificate is stolen or placed in another's name without the owner's permission,
the value of the loss is not the cost of the paper--a tangible--but the worth of
the stock--an intangible. (Payne v. Elliot (1880) 54 Cal. 339.) Similarly,
an individual who misappropriates a floppy disk which contains trade secrets,
protected formulas, or customer lists can be liable for conversion. And the
damages are the value of the information on the disk, not the de minimis price of
the disk. (See, e.g., Prosser & Keeton on Torts (5th ed. 1984) § 15, pp.
91-92 and Schneider v. Union [**7] Oil Co. (1970) 6 Cal. App. 3d 987,
993 [86 Cal. Rptr. 315].) Courts
have traditionally refused to recognize as conversion the unauthorized taking of
intangible interests that are not merged with, or reflected in, something
tangible. (Adkins v. Model Laundry Co. (1928) 92 Cal. App. 575, 583 [268 P.
939] [business goodwill]; Olschewski v. Hudson (1927) 87 Cal. App. 282,
286-288 [262 P. 43] [competitor's customer route]; Faircloth v. A.L.
Williams & Associates (1992) 206 Ga.App. 764 [426 S.E.2d 601, 604-605]
[unpaid commissions not evidenced by a receipt or certificate]; Matzan v.
Eastman Kodak Co. (1987) 134 A.D.2d 863 [521 N.Y.S.2d 917, 918] [no protected
interest in an idea].) And Dean Prosser has cautioned against scuttling
conversion's tangibility requirement altogether, recommending instead the use of
other remedies to protect intangible interests. (Prosser & Keeton on Torts,
supra, § 15, p. 92.) n4 n4 One commentator does
recommend dispensing with the tangibility limitation. (Comment, The Conversion of
Intangible Property: Bursting the Ancient Trover Bottle with New Wine (1991) B.Y.U.
L.Rev. 1681, 1714-1715.) But even that author notes numerous other legal theories
might be employed concerning the misappropriation of or interference with
intangibles. (Id. at p. 1700.) [**8]
Whether
the intangible computer access code, which was never reduced to paper or reflected
on a computer disk, and the tie-up of Thrifty-Tel's system [*1566] could be the
subjects of conversion presents an issue of first impression in California--and
apparently most everywhere else as well. n5 However, it is not necessary to
resolve the question because the evidence supports the verdict on a trespass
theory. n5 In analogous
circumstances at least two New York trial courts have held the unauthorized use of
a telephone access code, without more, does not amount to the possession of stolen
property because the codes are intangible. (See People v. Tansey (1992) 156
Misc.2d 233 [593 N.Y.S.2d 426, 429-430]; People v. Molina (1989) 145
Misc.2d 612 [547 N.Y.S.2d 546, 549]; but see People v. Johnson (1990) 148
Misc.2d 103 [560 N.Y.S.2d 238, 243-244].) This
very point was argued in the trial court, where defense counsel essentially
conceded Ryan and Gerry trespassed, but maintained the mislabeling [**9] of the
cause of action as one for conversion was fatal. Not so: "It has long been
recognized that this court has the power to modify the conclusion of the court
below, where the record supports it." (Fredericks v. Kontos Industries,
Inc. (1987) 189 Cal. App. 3d 272, 279 [234 Cal. Rptr. 395].) [***473]
Thrifty-Tel pleaded and proved a claim for trespass to personal property, and the
defendants are properly liable under that label. Trespass
to chattel, although seldom employed as a tort theory in California (indeed, there
is nary a mention of the tort in Witkin's Summary of California Law), lies where
an intentional interference with the possession of personal property has
proximately caused injury. n6 (See, e.g., Itano v. Colonial Yacht Anchorage
(1968) 267 Cal. App. 2d 84, 90 [72 Cal. Rptr. 823].) Prosser notes trespass to
chattel has evolved considerably from its original common law
application--concerning the asportation of another's tangible property--to include
even the unauthorized use of personal property: "Its chief importance
now," according to Prosser, "is that there may be recovery ... for
interferences with the possession of chattels which are not sufficiently [**10]
important to be classed as conversion, and so to compel the defendant to pay the
full value of the thing with which he has interfered. Trespass to chattels
survives today, in other words, largely as a little brother of [*1567]
conversion." n7 (Prosser & Keeton on Torts, supra, § 14, pp. 85-86, fn.
omitted; see also Zaslow v. Kroenert (1946) 29 Cal. 2d 541, 551 [176 P.2d 1]
["Where the conduct complained of does not amount to a substantial
interference with possession or the right thereto, but consists of intermeddling
with or use of ... the personal property, the owner has a cause of action for
trespass" to chattel, but not for conversion].) n8 n6 At early common law,
trespass required a physical touching of another's chattel or entry onto another's
land. The modern rule recognizes an indirect touching or entry; e.g., dust
particles from a cement plant that migrate onto another's real and personal
property may give rise to trespass. (See Wilson v. Interlake Steel Co. (1982)
32 Cal. 3d 229, 232-233 [185 Cal. Rptr. 280, 649 P.2d 922]; Roberts v.
Permanente Corp. (1961) 188 Cal. App. 2d 526, 529 [10 Cal. Rptr. 519].) But
the requirement of a tangible has been relaxed almost to the point of being
discarded. Thus, some courts have held that microscopic particles (Bradley v.
American Smelting and Refining Co. (1985) 104 Wn.2d 677 [709 P.2d 782, 788-789])
or smoke (Ream v. Keen (1992) 314 Or. 370 [838 P.2d 1073, 1075]) may give
rise to trespass. And the California Supreme Court has intimated migrating
intangibles (e.g., sound waves) may result in a trespass, provided they do not
simply impede an owner's use or enjoyment of property, but cause damage. (Wilson
v. Interlake Steel Co., supra, 32 Cal. 3d at pp. 233-234.) In our view, the
electronic signals generated by the Bezenek boys' activities were sufficiently
tangible to support a trespass cause of action. [**11] n7 Apparently no
California decision has applied a trespass theory to computer hacking. But the
Indiana Supreme Court has recognized in dicta that a hacker's unauthorized access
to a computer was more in the nature of trespass than criminal conversion. (State
v. McGraw (Ind. 1985) 480 N.E.2d 552, 554 [51 A.L.R.4th 963].) And the State
of Washington, in an effort to curtail hacking, has made unauthorized computer
access a criminal offense under the rubric, "computer trespass." (See,
e.g., State v. Riley (1993) 121 Wn.2d 22 [846 P.2d 1365, 1373].) n8 Likewise, the
Restatement Second of Torts section 217 includes in the definition of trespass to
chattel the intentional use or "intermeddling" with a chattel in the
possession of another. (Id. at § 217(b).) III
Plaintiff's
cyber-fraud cause of action also applies a hoary common law theory to computer-age
facts. The Bezeneks maintain they cannot be liable for fraud because the computer
machinations did not constitute a misrepresentation and there was no evidence of
reliance by Thrifty-Tel. Au contraire, asserts plaintiff: [**12] Ryan and Gerry's
use of the confidential access code was the legal equivalent of a
misrepresentation that they were authorized users of its services, and plaintiff
relied to its detriment on that misrepresentation when its computer automatically
granted them access to the network. Plaintiff's point is well taken. A
misrepresentation need not be oral; it may be implied by conduct. (See, e.g., Universal
By-Products, Inc. v. City of Modesto (1974) 43 Cal. App. 3d 145, 151 [117 Cal.
Rptr. 525] and Prosser & Keeton on Torts, supra, § 106, p. 736.) We are
aware of no decision holding the unauthorized use of a telephone access code
constitutes misrepresentation. But decisions in analogous circumstances support
that conclusion. For example, in State v. Hamm (Mo.Ct.App. 1978) 569 S.W.2d
289, the defendant used the bank card and personal identification number (PIN)
of another person to steal cash at an automatic teller machine. [***474] Rejecting
the assertion he made no misrepresentation, the court noted defendant's use of the
card and confidential PIN was an was an implied misrepresentation as to his
identity. (Id. at pp. 290-291.) n9 The same logic applies here. n9 See also In re Berz
(Bankr.N.D.Ill. 1994) 173 Bankr. 159, 162 (use of a credit card is an implied
representation to the issuer that the holder has both the intent and the ability
to pay the issuer) and Johnson v. State (Ala.Crim.App. 1982) 421 So.2d 1306,
1310 (nonsubscriber's unauthorized charging of calls to subscriber's telephone
number is an implied misrepresentation). [**13]
But
misrepresentation is only one element of a fraud cause of action; the plaintiff
must also have relied on the misrepresentation to its detriment. [*1568] True, no
human at Thrifty-Tel received and acted on the misrepresentation. But California
courts recognize indirect reliance. (Geernaert v. Mitchell (1995) 31 Cal. App.
4th 601, 605-606 [37 Cal. Rptr. 2d 483].) Moreover, the notion that reliance
by an agent may be imputed to the principal, even though the misrepresentation was
never communicated to the principal, is ensconced in California law. (See, e.g., Grinnell
v. Charles Pfizer & Co. (1969) 274 Cal. App. 2d 424, 441 [79 Cal. Rptr. 369];
Toole v. Richardson-Merrell Inc. (1967) 251 Cal. App. 2d 689, 707 [60 Cal. Rptr.
398, 29 A.L.R.3d 988].) We
view Thrifty-Tel's computerized network as an agent or legal equivalent. In this
regard, State v. Hamm, supra, 569 S.W.2d 289 is again persuasive. There,
the defendant argued a bank did not detrimentally rely on his misrepresentation to
an automatic teller machine via the unauthorized use of someone else's bank card
and PIN. Rejecting this contention, the court noted, "The machine was so
programmed that [**14] no money would be paid out without the insertion of the
appropriate card and the corresponding personal identification numbers. When those
items were supplied, the response was programmed so as to pay out the money. No
difference can be perceived whether the bank gave approval after the presentation
of those identification items or whether it programmed its acceptance upon those
conditions in advance. In either case, the bank equally relied upon the
presentation of the card and personal identification." (Id. at p. 291.)
n10 Here, Thrifty-Tel depended on the access code to identify the boys as
authorized users of the system. That reliance was detrimental because their
access, in effect, permitted them to steal plaintiff's services. n10 Cf. In re Brawner (Bankr.N.D.Ill.
1991) 124 Bankr. 762, 765 (use of a credit card implies a representation on
which card's issuer reasonably relies in extending credit). IV
At
least four months before Thrifty-Tel sued, it knew the hacking occurred in the
Bezenek [**15] home. But plaintiff neither notified the Bezeneks nor attempted to
prevent a recurrence. Myron Bezenek's testimony that he would have stopped it
immediately had he been advised of his children's activities was, not
surprisingly, unrebutted. Accordingly, the Bezeneks complain plaintiff failed to
mitigate its damages and insist they should not be liable for any losses suffered
in the February 1992 escapade. We agree. A
plaintiff has a duty to mitigate damages and cannot recover losses it could have
avoided through reasonable efforts. (Shaffer v. Debbas (1993) 17 Cal. App. 4th
33, 41 [21 Cal. Rptr. 2d 110].) Citing Service v. Trombetta (1963) 212 Cal.
App. 2d 313, 320 [28 Cal. Rptr. 68], Thrifty-Tel's only response is [*1569]
that mitigation does not " 'require a complex series of doubtful acts and
expenditures.' " Picking up the telephone to reach out and touch the Bezeneks
or sending them a letter was complex, doubtful, or expensive? Based on Myron
Bezenek's unchallenged testimony, we must presume that simple expedient would have
averted the second hacking episode. Accordingly, Thrifty-Tel is not entitled to
recover damages for the February 1992 event. V
Because
[**16] the judgment presumably included damages attributable to the February 1992
incident, the judgment must be reversed and the matter remanded for a new trial on
damages. But, as mentioned in part [***475] I, Thrifty-Tel presented no evidence
at trial of actual damages. (Civ. Code, § 3333.) It simply placed the
unauthorized-use tariff in evidence and demonstrated it spent a certain number of
labor hours to track down the invasion of its system. Defendants insist this falls
short of a plaintiff's burden to prove actual damages. (Fields v. Riley (1969)
1 Cal. App. 3d 308, 313 [81 Cal. Rptr. 671].) We
know of no authority--and Thrifty-Tel cites none--suggesting a plaintiff may
satisfy this burden merely by producing a formula or figure that in the abstract
purports to represent the average damages suffered as a consequence of similar
torts. Indeed, to assess damages based on a statistical average might be unfair.
For example, the facts here indicate the actual damages resulting from hacking may
vary dramatically depending upon the hacker's method: The damage flowing from the
boys' manual efforts were likely modest compared to that caused by the automated
barrage in February, 1992. Thus, a [**17] damage award based on this relatively
draconian tariff might produce a windfall in instances of de minimis hacking. (Cf.
Smith v. County of Los Angeles (1989) 214 Cal. App. 3d 266, 292 [262 Cal. Rptr.
754] ["... the award of damages should be sufficient to make the
[plaintiff] whole but not result in a windfall"].) Nor can Thrifty-Tel claim
actual damages were not readily calculable: If it is able to determine an average
loss for computer trespass, then surely it is able to produce evidence showing
with reasonable certainty any damages caused by Ryan and Gerry in November 1991. Nevertheless,
Thrifty-Tel claims we must apply the PUC-approved tariff, insisting that to do
otherwise would "interfere with the commission in the performance of its
official duties" in violation of Public Utilities Code section 1759. We were
troubled enough by this contention to solicit additional briefing and an amicus
curiae brief from the PUC. The PUC's submission was particularly helpful and,
perhaps surprisingly, did not support Thrify-Tel. There we were told, "The []PUC
respectfully submits that [*1570] its procedure for reviewing rates proposed by a
non dominant interexchange [**18] carrier (NDIEC) does not assure that its
unauthorized-use tariff bears a reasonable relationship to damages actually
sustained by the company and would not, in every case, be a proper measure of
liquidated damages." The PUC explained, "In 1984, the []PUC authorized
firms to compete against AT&T in the long-distance (interexchange) telephone
market. The new competitors were deemed to lack sufficient market share to
maintain unreasonably high rates. Accordingly, their proposed initial tariff rates
would be effective one day after filing and subsequent tariff revisions would
become effective five days after filing. Complaints about the terms and conditions
of the service of these carriers would be subject to the jurisdiction of the
Commission." From
these facts the PUC reached the following conclusion, with which we agree:
"It cannot be held, as a matter of law, that the unauthorized use tariff
represents the result of a reasonable endeavor by the NDIEC and consumers to
estimate a fair average compensation for any loss that may be sustained by a
customer's bypass of the telephone company's billing mechanism. If the amount
calculated pursuant to the tariff is disproportionate to the [**19] anticipated
damages, it will be defined as a 'penalty.' A contractual provision imposing a
penalty is ineffective, and the wronged party can collect only the actual damages
sustained. (Perdue v. Crocker National Bank (1985) 38 Cal. 3d 913, 930 [216
Cal. Rptr. 345, 702 P.2d 503].) Whether the tariff collects fair average
compensation or constitutes a penalty should be determined by the trier of
fact." Thus,
we need not pass on whether the PUC properly approved Thrifty-Tel's tariff or
whether the tariff is reasonable; we merely hold the superior court erred in
awarding contract or tort damages based on that tariff instead of requiring
plaintiff to prove actual damages. A suit to collect a tariff is in the nature of
a breach of contract action. (South Bay Transportation Co. v. Gordon Sand Co.
(1988) 206 Cal. App. 3d 650, 660-661 [253 Cal. Rptr. 753].) Whether
Thrifty-Tel's hacking tariff is a valid liquidated damages provision for a breach
of contract claim is not before us: The trial court ruled against Thrifty-Tel on
its quasi-contract [***476] cause of action, and Thrifty-Tel did not pursue a
protective appeal. We
also note that even if the PUC intended unauthorized-use [**20] tariffs to apply
to tort claims against third parties, and it tells us it did not, that would only
be true of AT&T for the reasons noted above. Also, the courts might well have
jurisdiction notwithstanding Public Utilities Code section 1759. Although we need
not, and do not purport to, decide that issue because the discussion in the
previous section seems equally applicable here, section [*1571] 1759 deprives the
courts of jurisdiction only as to acts undertaken by the commission "in the
performance of its official duties" and not acts in ex cess of its
jurisdiction. (Stepak v. American Tel. & Tel. Co. (1986) 186 Cal. App. 3d
633, 641-642 [231 Cal. Rptr. 37]; see also Cellular Plus, Inc. v. Superior
Court (1993) 14 Cal. App. 4th 1224, 1245-1247 [18 Cal. Rptr. 2d 308].) And the
PUC does not have jurisdiction over all matters that simply have some bearing upon
regulated utilities. (Masonite Corp. v. Pacific Gas & Electric Co. (1976)
65 Cal. App. 3d 1, 7 [135 Cal. Rptr. 170].) Although
article XII, sections 4 and 6 of the California Constitution authorize the
commission to establish rates utilities may charge for their services, it is a
debatable [**21] question as to whether they empower the PUC to liquidate a
utility's tort damages against third parties. (See, e.g., Bondanza v. Peninsula
Hospital & Medical Center (1979) 23 Cal. 3d 260 [152 Cal. Rptr. 446, 590 P.2d
22].) Our search of the Public Utilities Code for any statute permitting the
commission to exercise such a power has been in vain. n11 Similarly, we have
located no decision that implies such authority. n12 n11 Plaintiff suggests
Public Utilities Code section 451 somehow authorizes the PUC to liquidate a
utility's tort damages. We think not. Section 451 does not mention the commission.
Rather, it simply states that utilities' charges for services must be just and
reasonable. And Thrifty-Tel here is not seeking payment for services; it is
seeking damages on a tort claim. n12 Two California cases
have held the PUC can limit the damages a third party may recover from a utility
on a tort claim. (See Colich & Sons v. Pacific Bell (1988) 198 Cal. App. 3d
1225, 1234 [244 Cal. Rptr. 714]; Trammell v. Western Union Tel. Co. (1976)
57 Cal. App. 3d 538, 553-554 [129 Cal. Rptr. 361].) But neither case involved
the liquidation of a utility's damages against a third party. And they justified
their conclusions that a utility's liability may be limited by noting that any
large tort judgment ultimately would be passed on to the utility's ratepayers,
frustrating the strong public policy favoring uniform and reasonable rates. Those
concerns simply have no bearing here: a telephone company damaged by hackers can
protect itself and its ratepayers simply by suing the hackers and proving actual
damages. [**22]
VI
The
Bezeneks raise the several issues concerning Civil Code section 1714.1, which
holds parents vicariously liable for the willful torts of their minor children.
They first complain they had no inkling plaintiff intended to rely upon Civil Code
section 1714.1 until "after trial." But section 1714.1 is expressly
invoked in plaintiff's trial brief. The Bezeneks' notice of the theory before
trial negates the claim that its absence from the complaint prejudiced them. (Robertson
v. Wentz (1986) 187 Cal. App. 3d 1281, 1292 [232 Cal. Rptr. 634].) In
addition, the Bezeneks claim they are not liable under Civil Code section 1714.1
for the hacking of their children's friends. But they never [*1572] acted alone.
They acted in concert with the Bezenek boys, and whatever losses plaintiff
suffered arose from use of the Bezenek computer. The evidence indicates Ryan
knowingly permitted his friends to use the Bezeneks' computer to gain access to
Thrifty-Tel's computer and Ryan knew this was wrong. Thus, the trial court
correctly determined his conduct to be intentional and willful. (Saunders v.
Superior Court (1994) 27 Cal. App. 4th 832, 845-846 [33 Cal. Rptr. 2d 438].)
[**23] It
is of no consequence that plaintiff did not plead a conspiracy between the Bezenek
children and their friends or seek to amend the complaint after trial to conform
to proof. A variance between pleading and proof is material only if it
"actually misled the adverse party to his [or her] prejudice in maintaining
[the] ... defense upon the merits." (Code Civ. Proc., § 469; [***477] see
also Walker v. Belvedere (1993) 16 Cal. App. 4th 1663, 1669-1670 [20 Cal. Rptr.
2d 773].) That did not occur here: the Bezeneks knew plaintiff sued them based
on their sons' conduct; and Myron Bezenek testified he learned from his sons
"what had transpired and who was involved and how they went about doing
it" well before trial. Finally,
defendants also note Civil Code section 1714.1 limits parents' damages to $ 10,000
for each tort committed by their children. They suggest their sons' hacking
efforts were all part of a continuous course of conduct amounting to a single tort
for which no more than $ 10,000 may be awarded. Because we have concluded
plaintiff did not properly prove damages--let alone damages in excess of $
10,000--we decline to reach this issue. n13 n13 The parties cite (and
we have found) no cases interpreting Civil Code section 1714.1's "each
tort" language. However, there would appear to be at least three ways to
apply that provision here. The boys may have committed a new tort each time they
dialed Thrifty-Tel's access code. Alternatively, each episode of hacking--from
when they turned the computer on until they switched it off--might be a separate
tort. Or, as defendants suggest, the entire course of conduct--including the
November 1991 and February 1992 attempts to crack Thrifty-Tel's authorization
code--could be viewed as a single tort. [**24]
That
portion of the judgment awarding damages is reversed. The cause is remanded to the
superior court for a new trial to determine damages based on defendants'
children's tortious conduct before February of 1992. In all other respects, the
judgment is affirmed. Each side shall bear its own costs. Sonenshine,
J., and Rylaarsdam, J., concurred. |
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