Skip to Content (Press Enter)

Skip to Nav (Press Enter)

Effective, Experienced, Exceptional.

Firm Profile

Call Recording -- Pen. Code 632

Subscribe to Consumer Finance

Thank you for your desire to subscribe to Severson & Werson’s Consumer Finance Weblog. In order to subscribe, you must provide a valid name and e-mail address. This too will be retained on our server. When you push the “subscribe button”, we will send an electronic mail to the address that you provided asking you to confirm your subscription to our Weblog. By pushing the “subscribe button”, you represent and warrant that you are over the age of 18 years old, are the owner/authorized user of that e-mail address, and are entitled to receive e-mails at that address. Our weblog will retain your name and e-mail address on its server, or the server of its web host. However, we won’t share any of this information with anyone except the Firm’s employees and contractors, except under certain extraordinary circumstances described on our Privacy Policy and (About The Consumer Finance Blog/About the Appellate Tracker Weblog) Page. NOTICE AND AGREEMENT REGARDING E-MAILS AND CALLS/TEXT MESSAGES TO LAND-LINE AND WIRELESS TELEPHONES: By providing your contact information and confirming your subscription in response to the initial e-mail that we send you, you agree to receive e-mail messages from Severson & Werson from time-to-time and understand and agree that such messages are or may be sent by means of automated dialing technology. If you have your email forwarded to other electronic media, including text messages and cellular telephone by way of VoIP, internet, social media, or otherwise, you agree to receive my messages in that way. This may result in charges to you. Your agreement and consent also extend to any other agents, affiliates, or entities to whom our communications are forwarded. You agree that you will notify Severson & Werson in writing if you revoke this agreement and that your revocation will not be effective until you notify Severson & Werson in writing. You understand and agree that you will afford Severson & Werson a reasonable time to unsubscribe you from the website, that the ability to do so depends on Severson & Werson’s press of business and access to the weblog, and that you may still receive one or more emails or communications from weblog until we are able to unsubscribe you.

Another Day, Another CIPA Ruling – Jornaya’s Website Recording Does Not Violate Section 631

by Scott J. Hyman |

In Loretta Williams v. DDR Media, LLC, et al., No. 22-CV-03789-SI, 2023 WL 5352896, at *3–5 (N.D. Cal. Aug. 18, 2023), United States District Court Judge Susan Illston held, on a motion to dismiss, that Jornaya's recording of Plaintiff's website activity for the operator's later use did not violate CIPA.  Specifically, Plaintiff argues that Jornaya violated the second prong of… Read More

Google’s Motion for Summary Judgment, on Claims Related to Its Collection of Data During Private Browsing Sessions, is Denied

by Scott J. Hyman |

In Brown v. Google LLC, No. 4:20-CV-3664-YGR, 2023 WL 5029899, (N.D. Cal. Aug. 7, 2023), United States District Court Judge Yvonne Gonzalez Rogers details what constitutes standing to defeat a motion for summary judgment on breach of contract and various privacy violation claims: “To have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that… Read More

Court of Appeal (Cal.) Affirms Judgment Against Call Center Worker Whose Employer Recorded Workers’ Personal Calls with Her Daughter

by Scott J. Hyman |

In Rojas v. HSBC Card Servs. Inc., No. D077931, 2023 WL 4635056, at *1–2 (Cal. Ct. App. July 20, 2023), the Court of Appeal waded into an employer's recording of all calls of its employees whose job it is to communicate with the employers' customers. Rojas received hundreds of personal calls from her daughter Alejandra, an employee at an HSBC… Read More

Greenley v. Kochava – A Dense MTD Ruling on Multiple Privacy Claims

by Scott J. Hyman |

United States District Court Judge Cynthia Bashant, of the Central District of California, ruled on several privacy claims on a motion to dismiss. Addressing injury in fact: "Plaintiff alleges Defendant collected his personal information in violation of the California Constitution and various California statutes. (Am. Compl. ¶ 1.) Among the collected data are his “geolocation, ... communications related to his… Read More

District Court (Cal.) Denies Motion to Compel Arbitration in CIPA Class Action

by Scott J. Hyman |

In Williams v. DDR Media, LLC, No. 22-cv-03789-SI, 2023 U.S. Dist. LEXIS 33319, at *1-5 (N.D. Cal. Feb. 28, 2023), Judge Illston denied a Petition to Compel Arbitration in a CIPA class action.  The CIPA class action was based on the following facts. On June 27, 2022, Loretta Williams filed a class action complaint against defendants DDR Media LLC and… Read More

CIPA Motion to Dismiss Denied in Chat-Feature Case

by Scott J. Hyman |

On February 3, 2023, Judge Sykes of the Central District of California denied Goodyear's motion to transfer venue and its motion to dismiss Plaintiff's CIPA claim.  Byars v. Goodyear Tire & Rubber Co., No. 522CV01358SSSKKX, 2023 WL 1788553 (C.D. Cal. Feb. 3, 2023). On the motion to transfer venue, the Court held: Where the internet contract falls into the browsewrap… Read More

District Court (Cal.) Finds that Telematics Control Unit on Plaintiff’s Vehicle Was Not an “Electronic Tracking Device” under Penal Code 637.7

by Scott J. Hyman |

In Mollaei v. Otonomo, Inc., Judge Thompson found that a vehicle's TCU did not constitute an "Electronic Tracking Device" because it was not "attached' to the vehicle and tracked the location only of the vehicle, and not the 'person', within the meaning of Penal Code 637.7. Penal Code 637.7 provides that (a) No person or entity in this state shall… Read More

9th Cir. Says California’s Call Recording Statute Applies to Website that Recorded Visitors

by Scott J. Hyman |

In Javier v. Assurance IQ, LLC, No. 21-16351, 2022 U.S. App. LEXIS 14951, at *3 (9th Cir. May 31, 2022), the Court of Appeals for the 9th Circuit held that "[t]hough written in terms of wiretapping, Section 631(a) applies to Internet communications."   The facts and procedure below were as follows: Assurance is an insurance platform that owns and operates Nationalfamily.com. On this… Read More

California Supreme Court Finds Penal Code section 632.7 Requires Two-Party Consent

by Scott J. Hyman |

In Smith v. Loanme, Inc., No. S260391, 2021 Cal. LEXIS 2248, at *2-3 (Apr. 1, 2021), the California Supreme Court found that Penal Code 632.7 requires two-party consent.  The summary is below: Under Penal Code section 632.7, subdivision (a) (hereinafter section 632.7(a)), it is a crime when a person “without the consent of all parties to a communication, intercepts or… Read More

District Court (Cal.) Finds Some TCPA Calls Barred by the SofL, But Still Relevant to Willfulness; Allows Call Recording Claim to Proceed

by Scott J. Hyman |

In Ewing v. Freedom Forever Ltd. Liab. Co., No. 20-cv-880-JLS (AHG), 2021 U.S. Dist. LEXIS 53561 (S.D. Cal. Mar. 22, 2021), Judge Sammartino dismissed part of a TCPA claim, but let the balance proceed.   Judge Sammartino held that some of the calls were barred by the statute of limitations, but still remained relevant. Defendants argue that "most of Plaintiff's… Read More

District Court (Cal.) Stays Reconsideration of Ruling in Favor of Call Recording Plaintiffs in Light of California Supreme Court’s Grant of Review in Smith v. LoanMe

by Scott J. Hyman |

On April 1, 2020, the California Supreme Court granted review in Smith v. LoanMe.  Recently, Judge Hayes in Brinkley v. Monterey Fin. Servs., LLC, No. 16-cv-1103-WQH-WVG, 2020 U.S. Dist. LEXIS 70025 (S.D. Cal. Apr. 20, 2020) stayed reconsideration of his ruling in favor of the Plaintiffs, in light of the Supreme Court granting review in Smith.  Judge Hayes explained that Monterey sought… Read More

Court of Appeal (Cal.) Says Call Recording Statute Applies Only to Third Party “Eavesdropping”, Not to Parties to the Call

by Scott J. Hyman |

In Smith v. LoanMe, Inc., No. E069752, 2019 Cal. App. LEXIS 1282, at *2-4 (Ct. App. Dec. 20, 2019), the California Court of Appeal addressed the scope of a cause of action under Penal Code 632.7.  The facts were as follows: LoanMe is in the business of providing personal and small business loans. Smith's wife is the borrower on a… Read More

Court of Appeal (Cal.) Says Insurance Policy Covers Pen. Code 632 Call Recording Claims

by Scott J. Hyman |

In Nautilus Ins. Co. v. Mingione, No. G055914, 2019 Cal. App. Unpub. LEXIS 3759 (May 31, 2019), the Court of Appeal held in an unpublished case that Penal Code 632/637.2 claims were no excluded criminal acts and that the penalties available under those sections were covered damages. We agree with Mingione that public policy and the rules of insurance policy… Read More

District Court (Cal.) Allows Call Recording Class Action to Proceed

by Scott J. Hyman |

In Fishman v. Tiger Natural Gas, Inc., 2018 WL 1242076, at *2–3 (N.D.Cal., 2018), Judge Alsup allowed a call-recording class action to proceed. Tiger argues that plaintiffs’ allegations regarding the sales calls — namely that (1) the parties discussed plaintiffs’ PG&E account information, (2) the calls were not made in a public setting, and (3) many other telemarketers disclose that… Read More

District Court (Cal.) Denies Production of Call Recordings in Call-Recording Class Action; Says that Unlike Dialer Lists, the Call Recordings Contain Confidential Information

by Scott J. Hyman |

In Ronquillo-Griffin v. Transition Rental Screening Solutions, Inc., 2018 WL 325051, at *3–5 (S.D.Cal., 2018), the District Court denied production of the actual class's call recordings in a call recording class action because the content was private. Plaintiffs assert that the requested audio recordings “are highly relevant to several requirements for a class certification motion,” including numerosity, ascertainability, commonality, predominance, and manageability.… Read More

Court of Appeal (Cal.) Finds Arbitration Clause Enforceable in Call Recording Class Action; Says Arb. Clause’s Reference to Using AAA Necessarily Incorporated AAA’s Rules, Including Delegation to Arbitrator Whether Class Claims Can Be Decided by Arbitrator

by Scott J. Hyman |

In Brinkley v. Monterey Financial Services, Inc., 2015 WL 7302268 (Cal.App. 4 Dist., 2015), the California Court of Appeal found a TCPA/Call Recording case to be within the scope of an enforceable arbitration clause:= We conclude that Brinkley's claims fall within the scope of the arbitration agreement and that the arbitration agreement is enforceable, with the exception of one provision… Read More

Court of Appeal (Cal.) Affirms De-Certification of Call-Recording Class

by Scott J. Hyman |

In Kight v. CashCall, Inc. 2014 WL 5573457 (2014), on remand from a prior appeal in the same case, the defendant successfully moved to decertify the plaintiff class that alleged eavesdropping on telephone calls by CashCall's supervisors in violation of Penal Code 632.  The opinion on the earlier appeal established that an objective test is applied to determine whether a call… Read More

District Court (Cal.) Says Defendant’s Call Recordings Marked “Confidential” in TCPA Case Did Not Prevent Plaintiff from Using Recordings to File New Class Action for Illegally Recording Conversation

by Scott J. Hyman |

In Olney v. Job.com, 2014 WL 4629062 (E.D.Cal. 2014), the Plaintiff filed a TCPA class action based on calls he received after signing up for Defendant's resume service.  The Plaintiff and Defendant entered into a Discovery Stipulation allowing the parties to designate certain information as "Confidential".  The Defendant produced, and marked confidential, three recordings of telephone conversations with the Plaintiff.  As a… Read More

Court of Appeal (Cal.) Affirms Denial of Class Certification of Call Recording Case under Pen. Code § 632 Because Individual Factual Questions Predominate

by Scott J. Hyman |

In Hataishi v. First American Home Buyers Protection Corporation, --- Cal.Rptr.3d ----, 2014 WL 667381 (Cal.App. 2 Dist. 2014), the Court of Appeal for the Second District affirmed the trial court’s denial of class certification in a call-recording case filed under Penal Code § 632. The facts were as follows: A customer placing an inbound call to First American is… Read More

District Court (Cal.) Rejects Plaintiff’s Strategy of Litigating State Court Rosenthal Act Claim to Obtain Waiver of Right to Arbitrate Federal Claim under Clause Containing a Class Action Waiver

by Scott J. Hyman |

In Gillette v. First Premier Bank, 2013 WL 3205827 (S.D.Cal. 2013), Plaintiff's counsel employed a strategy purportedly designed to secure a waiver of arbitration clause.  Plaintiff filed a small-value Rosenthal Act claim and settled it with the defendant.  However, Plaintiff also had filed a federal class action under Penal Code 632 -- California's call recording statute.  Defendant moved to compel arbitration of… Read More

1 2