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Flanagan v. Flanagan

Supreme Court of California

March 14, 2002, Decided

No. S085594.


 [*768]  [**576]  [***575]    KENNARD, J. 

] California prohibits the recording of a telephone call without consent from all parties,  [****2]  but only if the call includes a "confidential communication." (Pen. Code, § 632, subd. (a).) 1 Violation of the law is a misdemeanor (ibid.) and may entail a civil penalty of $ 5,000 or three times the actual damages, whichever is greater (§ 637.2). Our Courts of Appeal have disagreed over the meaning of the critical term "confidential communication." We granted review to resolve that disagreement.

One line of authority holds that ] a conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded. ( Frio v. Superior Court (1988) 203 Cal. App. 3d 1480 [250 Cal. Rptr. 819] ( Frio); Coulter v. Bank of America (1994) 28 Cal. App. 4th 923 [33 Cal. Rptr. 2d 766].) Under the other line of authority, a conversation is confidential only if the party has an objectively reasonable expectation that the content [****3]  will not later be divulged to third parties. (O'Laskey v. Sortino (1990) 224 Cal. App. 3d 241 [273 Cal. Rptr. 674]  [**577]  (O'Laskey); see Deteresa v. American Broadcasting Companies, Inc. (9th Cir. 1997) 121 F.3d 460 (Deteresa).) We endorse the standard established in Frio and Coulter.


The California Invasion of Privacy Act (§ 630 et seq.) was enacted in 1967, replacing prior laws that permitted the recording of telephone conversations with the consent of one party to the conversation. (See Comment,  [*769]  Electronic Surveillance in California: A Study in State Legislative Control (1969) 57 Cal. L.Rev. 1182, 1191.) The purpose of the act was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation.

This case involves subdivisions (a) and (c) of section 632. Subdivision (a) provides: ] "Every person who, intentionally and without the consent of all parties to a confidential communication . . . eavesdrops upon or records the confidential communication, whether the communication is carried on among [****4]  the parties in the presence of one another or by means of telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding [$ 2,500] or imprisonment . . . not exceeding one year. . . ." (Italics added.)

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27 Cal. 4th 766 *; 41 P.3d 575 **; 117 Cal. Rptr. 2d 574 ***; 2002 Cal. LEXIS 1661 ****; 2002 Cal. Daily Op. Service 2382; 2002 Daily Journal DAR 2899

J. MICHAEL FLANAGAN, Cross-complainant and Appellant, v. HONORINE T. FLANAGAN, Cross-defendant and Respondent.

Prior History:   [****1]  Superior Court of Los Angeles County. Super. Ct. No. BC153016. Ralph W. Dau, Judge.

Court of Appeal, Second Dist., Div. Five. No. B122810.

Flanagan v. Flanagan, 77 Cal. App. 4th 122, 91 Cal. Rptr. 2d 422, 1999 Cal. App. LEXIS 1120 (2d Dist. 1999) 

Disposition: Reversed and remanded.


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Communications Law, Overview & Legal Concepts, Privacy, General Overview, Criminal Law & Procedure, Criminal Offenses, Illegal Eavesdropping, Elements, Governments, Legislation, Interpretation