Not a Lexis Advance subscriber? Try it out for free.

Hataishi v. First American Home Buyers Protection Corp.

Court of Appeal of California, Second Appellate District, Division Three

February 21, 2014, Opinion Filed

B244769

Opinion

KITCHING, J.

 [**265]  INTRODUCTION

Named plaintiff Dina Hataishi (Plaintiff) appeals from a trial court order denying her motion for certification of a California class of defendant First American Home Buyers Protection Corporation's (First American) customers whose telephone conversations were recorded without warning. Plaintiff contends that First American's conduct violates Penal Code1 section 632, which prohibits the intentional recording of a “confidential communication”  [***2] without the consent of all parties to the communication. The trial court denied Plaintiff's motion for class certification for lack of ascertainability, community of interest and superiority. We affirm on the ground that the proposed class lacks the requisite community of interest and do not reach the court's other bases for denying class certification.

Our Supreme Court has held that ] “a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 777 [117 Cal. Rptr. 2d 574, 41 P.3d 575] (Flanagan).) Here, the trial court ruled that determining whether an individual plaintiff had an objectively reasonable expectation that his or her telephone conversation would not be recorded is a question of fact subject to individualized proof. We conclude the trial court applied the correct legal standard and that its ruling is supported by substantial evidence.

FACTUAL AND PROCEDURAL BACKGROUND

1. First American's Call Recording System

First American issues one-year home warranty plans to customers  [***3] in 46 states, including California. The plans typically cover the major systems and appliances in a customer's home.

 [*1458] 

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

223 Cal. App. 4th 1454 *; 168 Cal. Rptr. 3d 262 **; 2014 Cal. App. LEXIS 162 ***; 2014 WL 667381

DINA HATAISHI, Plaintiff and Appellant, v. FIRST AMERICAN HOME BUYERS PROTECTION CORPORATION, Defendant and Respondent.

Subsequent History: Request denied by Hataishi v. First American Home Buyers Protection Corp., 2014 Cal. LEXIS 3604 (Cal., May 21, 2014)

Prior History:  [***1] APPEAL from an order of the Superior Court of Los Angeles County, No. BC420436, Charles F. Palmer, Judge.

Disposition: Affirmed.

CORE TERMS

recorded, customers, trial court, conversation, outbound, monitored, confidential, Sales, Inside, class certification, objectively reasonable expectation, confidential communication, predominate, disclosure, telephone, telephone conversation, parties, telephone call, inbound, privacy, amend, automated, advising, cellular, warranty, dozens, certification, assessing, overheard, cordless

Communications Law, Overview & Legal Concepts, Privacy, General Overview, Criminal Law & Procedure, Criminal Offenses, Illegal Eavesdropping, Elements, Civil Procedure, Class Actions, Prerequisites for Class Action, Special Proceedings, Appellate Review, Certification of Classes, Adequacy of Representation, Commonality, Predominance