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Burkley v. Nine W. Holdings

Superior Court of California, County of Los Angeles

September 5, 2017, Decided

BC641730

Opinion

NATURE OF PROCEEDINGS:

DEMURRER OF DEFENDANT NINE WEST HOLDINGS INC. TO PLAINTIFF'S CLASS ACTION COMPLAINT

The Court issues its tentative ruling by posting on www.CaseAnywhere.com.

The matter is called for hearing.

The Court, having read and considered the documents submitted and having heard oral argument, takes the Demurrer of Defendant Nine West Holdings Inc. to Plaintiff's Class Action Complaint under submission.

LATER OUT OF THE PRESENCE OF THE PARTIES, THE COURT ISSUES THE FOLLOWING RULING:

Demurrer of Defendant Nine West Holdings, Inc.

Court's Ruling: Sustain with leave to amend to allege a violation of Penal Code section 632

Plaintiff alleges that in May 2016 he called Defendant from a wireless telephone and spoke with a customer service representative. He alleges that Defendant records all its incoming telephone calls but does not disclose this to every caller and did not disclose this to Plaintiff. Plaintiff seeks relief on behalf of himself and a class similarly situated.

If he alleged the call was confidential, Plaintiff could have brought a claim under Penal Code section 632, enacted in 1967, [*2]  but has chosen not to do so. Penal Code section 632 punishes recording of confidential communications, including telephone conversations and including recording by persons participating in the conversation. Penal Code section 637.2 provides injunctive relief and civil penalties for violation of section 632 and other sections of the chapter.

Plaintiff has not invoked section 632. He does not reveal his strategy for avoiding a claim under that section, but possibly he is concerned that proof of confidentiality of communications, as required by section 632, would create individual issues of fact precluding pursuit of the case as a class action.

Instead, Plaintiff attempts to allege a claim under Penal Code section 632.7. Penal Code section 632.7 is part of a series of Penal Code sections seeking to protect persons talking on communications devices that send signals through the airwaves from interception of their communications by third parties.

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2017 Cal. Super. LEXIS 8932 *; 2017 WL 4479316

JASON BURKLEY v. NINE WEST HOLDINGS INC

CORE TERMS

telephone, intercepts, recording, receives, parties, cellular, confidential, cordless, cell phone, communications, punish, radio, conversations, landline, maliciously, step-son, assists