Flanagan v. Flanagan - 27 Cal. 4th 766, 117 Cal. Rptr. 2d 574, 41 P.3d 575 (2002)

Rule:

California prohibits the recording of a telephone call without consent from all parties, but only if the call includes a confidential communication. Cal. Penal Code § 632(a). Violation of the law is a misdemeanor and may entail a civil penalty of $ 5,000 or three times the actual damages, whichever is greater. Cal. Penal Code § 637.2. A conversation is confidential if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.

Facts:

John and respondent Honorine T. Flanagan got married in 1969. In 1992, the husband was diagnosed with prostate cancer. Thus, under his estate plan, upon his death, respondent would receive all his property for life. At one time, respondent told her manicurist that she would pay for someone to kill her husband. Upon learning of this, appellant J. Michael Flanagan informed the husband, who then changed his estate plan. However, the spouses reconciled and the husband returned to the family house and executed new estate plan. When her husband returned to the house, respondent also began taping all of her husband's conversation with their grandson. Thereafter, the husband died. Respondent filed this complaint alleging conspiracy, invasion of privacy, and infliction of emotional distress against her manicurist and her stepson. Appellant cross-complained against respondent on the ground that she recorded confidential communications without his consent. The jury found that the calls were confidential and awarded money for each call. The court of appeal reversed, limiting the damage award.  On the respondent's motion for judgment notwithstanding the verdict, the trial court reduced the statutory penalties and struck the punitive damages award. The Court of Appeal increased the judgment and ruled that a conversation was confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. Appellant sought review.

Issue:

Was the appellate court correct in holding that a conversation was confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties?

Answer:

No.

Conclusion:

The Supreme Court reversed the judgment of the court of appeals. The court rejected the appellate court’s determination that a conversation was confidential only if the party has an objectively reasonable expectation that the content will not later be divulged to third parties. The court held that although that standard has been applied by some courts, the Supreme Court adopted a competing standard, whereby a conversation was deemed confidential if a party to that conversation has an objectively reasonable expectation that the conversation was not being overheard or recorded. Thus, by focusing on simultaneous dissemination rather than second-hand repetition, the definition or confidential communication endorsed by the Supreme Court better fulfills the legislative purpose of the Privacy Act by giving greater protection to privacy interests. Accordingly, the case was remanded for further proceedings consistent with this opinion.