Thursday, January 18, 2018
Court of Appeal: Privacy Action Lies Where One Party Did Not Know Call Was Recorded
By a MetNews Staff Writer
The Fourth District Court of Appeal has reversed a summary judgment in favor of a company that recorded all calls on certain telephones, holding that knowledge by its employee of the recording policy could not be imputed to her mother—with whom she had frequent phone conversations—who has sued for invasion of privacy.
The unpublished opinion, filed Tuesday, reinstates an action under the California Invasion of Privacy Act brought by Dalia Rojas against her daughter’s former employer, HSBC Card Services, Inc. Justice Joan K. Irion of Div. One wrote the opinion.
The daughter was employed by HSBC at its Salinas facility from March 23, 2009 until about May 1, 2012, when that facility was purchased by Capital One Financial Corporation, for which she worked from that point through October 2013.
On Aug. 28, 2015, Rojas sued HSBC in San Diego Superior Court based on recordings of 316 chats she had with her daughter while at work and one with a HSBC co-worker. The daughter’s husband, Jose Antonio Ramos, on Nov. 18, 2016, filed a like complaint in Monterey Superior Court against HSBC, along with Capital One.
Ramos’s case was removed by HSBC to the U.S. District Court for the Northern District of California, based on diversity of citizenship, and the plaintiff is appealing in the Ninth U.S. Circuit Court of Appeals the district court’s judgment of dismissal .
Penal Code Sections
Rojas invoked Penal Code §632(a), which renders it a crime to “intentionally and without the consent of all parties to a confidential communication” record a telephone conversation, and §632.7 which authorizes a fine and imprisonment for the “intentional recordation” of a conversation entailing use of a cell phone “without the consent of all parties to a communication.” A private action is authorized under §637.2 which sets damages at $5,000 per violation or three times actual damages, whichever is more. “the January 2017 amendment changed the law and did not merely clarify it”
A footnote declares that §632.7 “allows for a civil penalty of $5,000 ‘per violation’ for each violation of section 632(a) and 632.7(a).”
(Irion does not confront a matter delved into by U.S. District Court Judge Beth Labson Freeman: whether it “per violation” was implied in §632.7 prior to those words being added effective Jan. 1, 2017. Freeman determined that it was not, holding that the case did not meet the jurisdictional minimum of $75,000 in controversy.)
Irion’s opinion reverses the decision of San Diego Superior Court Judge Earl Maas III that there was no triable issue of fact as to “whether Defendants recorded the phone calls ‘with the purpose or desire of recording a confidential conversation or with the knowledge to a substantial certainty that his use of the equipment will result in the recordation of a confidential conversation’ or “intentionally recorded” a communication involving a cell phone.
Mother’s Knowledge Irrelevant
“A considerable portion of HSBC’s brief focuses on HSBC’s disclosures to Rojas’s daughter regarding HSBC’s practice of recording calls, Rojas’s daughter’s knowledge of HSBC’s company policy of recording calls, and Rojas’s knowledge that the 317 calls were being placed to her from HSBC telephones. Such a showing, even assuming it is uncontested, does not conclusively establish a lack of intent for purposes of section 632(a) or section 632.7(a).”
The jurist elaborated in a footnote:
“For example, HSBC suggests that ‘the recordings were merely incidental and caused by [Rojas’s d]aughter’s improper use of HSBC’s company phone.’ HSBC does not explain what it means by ‘improper use’ of the phone, since its written policy authorized its employees to use company telephones for personal calls, expressly advising them that their ‘personal calls may be recorded.’ Moreover, HSBC does not explain how Rojas’s daughter’s use of the telephone affects Rojas’s claim, since Rojas was not subject to HSBC’s policies on employee telephone use. The uncontested facts on this record are that, regardless of what Rojas’s daughter may have known or consented to, Rojas never knew about or consented to the recording of any telephone calls.”
The case is Rojas v. HSBC Card Services Inc., D071442.
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