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Kight v. CashCall, Inc.

Court of Appeal of California, Fourth Appellate District, Division One

October 9, 2014, Opinion Filed

D063363

Opinion

 [**443] 

HALLER, J.—Plaintiffs challenge a court order decertifying a class alleging violations of Penal Code section 632, the statute prohibiting the undisclosed monitoring or recording of confidential telephone conversations.1 We affirm the order.

INTRODUCTION

In 2006, several borrowers sued their lender, CashCall, Inc., alleging CashCall monitored their telephone conversations without their knowledge or consent. Over CashCall's objections, the trial court certified a class on one of the claims, an alleged violation of section 632, subdivision (a), which imposes liability on a “person” who intentionally “eavesdrops [***2]  upon or records [a] confidential communication” and engages in this conduct “without the consent of all parties.” (Italics added.)

 [*117] 

After class certification, CashCall successfully moved for summary adjudication on the section 632 claim. The trial court found as a matter of law a corporation does not violate the statute when one of its supervisory employees secretly monitors a conversation between a customer and another corporate employee, reasoning that two employees are a single “person” within the meaning of the statute.

We reversed this order in a published decision. (Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377 [133 Cal. Rptr. 3d 450] (CashCall II).) We held the statute applies even if the unannounced listener is employed by the same corporate entity as the known recipient of the conversation, concluding the trial court's statutory interpretation was inconsistent with section 632's language and purpose. (200 Cal.App.4th at pp. 1391–1395.) We also rejected CashCall's alternative argument that summary adjudication was proper because the undisputed facts established the telephone conversations were not “confidential communications]” within the meaning of the statute. (Id. at pp. 1396–1398, italics added.) We explained the confidential communication statutory element requires plaintiffs to show they had an “objectively reasonable expectation [***3] ” their conversations would not be secretly monitored, and we held triable factual issues existed on this statutory element. (Id. at p. 1396.) In so holding, we stated the “issue whether there exists a reasonable expectation that no one is secretly listening to a phone conversation is generally a question of fact that may depend on numerous specific factors,” and provided examples of these individualized factors applicable in this case. (Ibid.)

On remand, CashCall moved to decertify the class based primarily on its argument that the issue whether any particular class member can satisfy this reasonable expectation test requires an assessment of numerous individual factors (including those identified in the CashCall II opinion) and these individual issues predominate over any remaining common issues, making a continued class action unmanageable. Plaintiffs opposed the motion, arguing CashCall did not meet its burden to establish changed circumstances necessary for class decertification and, alternatively, common issues continued to predominate in the case.

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231 Cal. App. 4th 112 *; 179 Cal. Rptr. 3d 439 **; 2014 Cal. App. LEXIS 1006 ***

AMANDA KIGHT et al., Plaintiffs and Appellants, v. CASHCALL, INC., Defendant and Respondent.

Subsequent History:  [***1] The Publication Status of this Document has been Changed by the Court from Unpublished to Published November 4, 2014.

Review denied by Kight v. Cashcall, Inc., 2015 Cal. LEXIS 84 (Cal., Jan. 14, 2015)

Prior History: APPEAL from an order of the Superior Court of San Diego County, No. GIC866032, Lorna A. Alksne, Judge.

Kight v. CashCall, Inc., 2014 Cal. App. Unpub. LEXIS 7173 (Cal. App. 4th Dist., Oct. 9, 2014)

Disposition: Affirmed.

CORE TERMS

monitored, Disclosure, decertification, recorded, class action, class member, conversation, individual issues, class certification, plaintiffs', circumstances, decertify, outbound, confidential communication, predominate, customer, privacy, listening, inbound, reasonable expectation, trial court, confidential, employees, caller, common issue, certification, change of circumstances, telephone conversation, secretly, objectively reasonable expectation

Civil Procedure, Special Proceedings, Class Actions, Certification of Classes, Prerequisites for Class Action, Commonality, Predominance, Certification of Classes, Decertification, Judicial Discretion, Appellate Review, General Overview, Criminal Law & Procedure, Criminal Offenses, Illegal Eavesdropping, Elements, Governments, Legislation, Interpretation, Constitutional Law, Fundamental Rights, Procedural Due Process, Scope of Protection