Filed 12/20/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JEREMIAH SMITH,
Plaintiff and Appellant, E069752
v. (Super.Ct.No. RIC1612501)
LOANME, INC., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of Riverside County. Sharon J. Waters, Judge.
Affirmed.
Law Offices of Todd M. Friedman, Todd M. Friedman and Adrian R. Bacon for
Plaintiff and Appellant.
Finlayson Toffer Roosevelt & Lilly, Michael R. Williams and Jared M. Toffer for
Defendant and Respondent.
Jeremiah Smith filed a class action complaint against LoanMe, Inc. (LoanMe),
alleging that LoanMe violated the California Invasion of Privacy Act (Privacy Act)
1
(Pen. Code, § 630, et seq.). 1 Smith alleged that LoanMe violated section 632.7 by
recording a phone call with Smith without his consent while he was using a cordless
telephone, and he claimed that a “beep tone” at the beginning of the call did not
constitute sufficient notice that LoanMe was recording the call. In a bifurcated trial about
the beep tone issue, the trial court concluded that (1) the beep tone provided sufficient
notice to Smith that the call was being recorded, and (2) Smith implicitly consented to
being recorded by remaining on the call.
We requested supplemental briefing on the issue of whether section 632.7 applies
to the recording of a phone call by a participant in the phone call or instead applies only
to recording by third party eavesdroppers. We asked that the briefs address the question
in light of the plain language of section 632.7, its legislative history, and its relationship
with other provisions of the Privacy Act. No California appellate opinion addresses the
issue. Several federal district courts in California have analyzed the issue, and they are
not in agreement. 2
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Brinkley v. Monterey Fin. Servs., LLC (S.D.Cal. 2018) 340 F.Supp.3d 1036, 1042-
1043 (Brinkley); Ades v. Omni Hotels Mgmt. Corp. (C.D.Cal. 2014) 46 F.Supp.3d 999,
1017-1018; Raffin v. Medicredit, Inc. (C.D.Cal. Jan. 3, 2017, No. CV 15-4912-GHK
(PJWx)) 2017 WL 131745, at pp. *6-*9; Lal v. Capital One Fin. Corp. (N.D.Cal.
Apr. 12, 2017, No. 16-cv-06674-BLF) 2017 WL 1345636, at p. *8; Ramos v. Capitol
One, N.A. (N.D.Cal. July 27, 2017, No. 17-cv-00435-BLF) 2017 WL 3232488, at pp. *8-
*9; Horowitz v. GC Services Ltd. Partnership (S.D.Cal. Apr. 28, 2015, No. 14cv2512-
MMA (RBB)) 2015 WL 1959377, at pp. *11-*12; Young v. Hilton Worldwide, Inc.
(C.D.Cal. July 11, 2014, No. 2:12-cv-01788-R-(PJWx) 2014 WL 3434117, at pp. *1-*2;
Rezvanpour v. SGS Auto. Servs., Inc. (C.D.Cal. July 11, 2014, No. 8:14-cv-00113-ODW
(JPRx)) 2014 WL 3436811, at p. *4; Montantes v. Inventure Foods (C.D.Cal. July 2,
2
We conclude that section 632.7 prohibits only third party eavesdroppers from
intentionally recording telephonic communications involving at least one cellular or
cordless telephone. Conversely, section 632.7 does not prohibit the participants in a
phone call from intentionally recording it. Consequently, Smith failed to state a claim
against LoanMe under section 632.7. We therefore affirm the trial court’s dismissal of
Smith’s lawsuit.
BACKGROUND 3
LoanMe is in the business of providing personal and small business loans.
Smith’s wife is the borrower on a loan from LoanMe. In October 2015, an employee of
LoanMe called the telephone number provided to LoanMe by Smith’s wife to discuss the
loan. Smith answered the call on a cordless telephone and informed the caller that his
wife was not available, and the call then ended. The call lasted approximately 18
seconds. LoanMe recorded the call. Three seconds into the call LoanMe “caused a ‘beep
tone’ to sound.” It is LoanMe’s practice to cause a beep tone to play at regular 15 second
intervals on all of its outbound calls. LoanMe did not orally advise Smith that the call
2014, No. CV-14-1128-MWF (RZx)) 2014 WL 3305578, at. pp. *2-*4; Simpson v.
Vantage Hospitality Group, Inc. (N.D.Cal. Dec. 4, 2012, No. 12-cv-04814-YGR) 2012
WL 6025772, at pp. *5-*6; Simpson v. Best Western Intern., Inc. (N.D.Cal. Nov. 9, 2012,
No. 3:12-cv-04672-JCS) 2012 WL 5499928, at pp. *6-*9; Brown v. Defender Sec. Co.
(C.D.Cal. Oct. 22, 2012, No. CV 12-7319-CAS (PJWx)) 2012 WL 5308964, at pp. *4-
*5; Kuschner v. Nationwide Credit, Inc. (E.D.Cal. 2009) 256 F.R.D. 684, 688; Ronquillo-
Griffin v. Telus Communs., Inc. (S.D.Cal. June 27, 2017, No. 17cv129 JM (BLM)) 2017
WL 2779329, at pp. *3-*4.
3 We take these facts from the stipulation that the parties entered into for purposes
of the bench trial.
3
was being recorded. Smith also did not sign a contract granting LoanMe consent to
record calls.
In September 2016, Smith filed a class action complaint against LoanMe, alleging
that LoanMe recorded phone calls without consent in violation of section 632.7 and
seeking statutory damages and injunctive relief. 4 On the parties’ stipulation, the trial
court ordered a bifurcated bench trial to resolve the “the beep tone issue.” After listening
to a recording of the phone call, the trial court concluded that the beep tone provided
Smith sufficient notice under section 632.7 that the call was being recorded and that
Smith implicitly consented to being recorded by remaining on the call. The trial court
entered judgment against Smith.
DISCUSSION
A. Analytical Framework for Statutory Interpretation
In interpreting a statute, our goal “‘‘‘‘is to determine the Legislature’s intent so as
to effectuate the law’s purpose. We first examine the statutory language, giving it a plain
and commonsense meaning. We do not examine that language in isolation, but in the
context of the statutory framework as a whole in order to determine its scope and purpose
and to harmonize the various parts of the enactment.’”’’’ (Meza v. Portfolio Recovery
Associates, LLC (2019) 6 Cal.5th 844, 856 (Meza).) In other words, “[t]he meaning of a
4 Smith argues for the first time on appeal that “LoanMe infringed on [his] right to
privacy guaranteed by the California Constitution.” Because Smith did not include a
constitutional cause of action in his complaint and did not litigate the issue in the trial
court, we do not address it. (Premier Medical Management Systems, Inc. v. California
Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 [“‘“‘Generally, issues raised for
the first time on appeal which were not litigated in the trial court are waived’”’”].)
4
statute may not be determined from a single word or sentence; the words must be
construed in context, and provisions relating to the same subject matter must be
harmonized to the extent possible.” (Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.)
“‘‘‘‘If the language is clear, courts must generally follow its plain meaning unless a
literal interpretation would result in absurd consequences the Legislature did not intend.
If the statutory language permits more than one reasonable interpretation, courts may
consider other aids, such as the statute’s purpose, legislative history, and public
policy.’”’’’ (Meza, supra, at p. 856.)
We independently review questions of statutory interpretation. (California
Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032,
1041.)
B. The Privacy Act Provisions Relating to Cordless and Cellular Phones, and Section
632
In 1967, the Legislature enacted the Privacy Act “to protect the right of privacy of
the people of this state” from technological advances that “led to the development of new
devices and techniques for the purpose of eavesdropping upon private communications.”
(§ 630.) The Legislature considered eavesdropping on private communications a serious
threat that “cannot be tolerated in a free and civilized society.” (§ 630; Kearney v.
Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 115 (Kearney) [describing the Privacy
Act as “a broad, protective invasion-of-privacy statute”].)
One of the provisions of the original 1967 legislation—section 632—prohibits the
intentional recording of a confidential telephone communication without the consent of
5
all parties. (Kearney, supra, 39 Cal.4th at p. 117.) In relevant part, section 632,
subdivision (a), provides: “A person who, intentionally and without the consent of all
parties to a confidential communication, uses an electronic amplifying or recording
device to eavesdrop upon or record the confidential communication, whether the
communication is carried on among the parties in the presence of one another or by
means of a telegraph, telephone, or other device, except a radio, shall be punished by” a
fine, imprisonment, or both. For purposes of the statute, “person” includes businesses.
(§ 632, subd. (b).)
In addition to section 632’s creation of criminal liability for this invasion of a
person’s privacy, section 637.2, which was also part of the original legislation, “explicitly
created a new, statutory private right of action, authorizing any person who has been
injured by any violation of the invasion-of-privacy legislation to bring a civil action to
recover damages and to obtain injunctive relief in response to such violation.” (Kearney,
supra, 39 Cal.4th at pp. 115-116.) Any person injured by a violation of the Privacy Act
may recover $5,000 per violation. (§ 637.2, subd. (a)(1).)
In 1985, in response to the early stages of technological advances in wireless
communication, particularly cellular radio telephones, the Legislature enacted section
632.5 as part of the Cellular Radio Telephone Privacy Act of 1985 (a subpart of the
Privacy Act). (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 775.) Section 632.5
provides in relevant part: “Every person who, maliciously and without the consent of all
parties to the communication, intercepts, receives, or assists in intercepting or receiving a
6
communication transmitted between cellular radio telephones or between any cellular
radio telephone and a landline telephone shall be punished by” a fine, imprisonment, or
both. (§ 632.5, subd. (a).)
In 1990, the Legislature amended the 1985 legislation, renaming it the Cordless
and Cellular Radio Telephone Privacy Act of 1985. The amendment added section
632.6, which uses the same language as section 632.5 to extend the same protection to
cordless telephones instead of cellular telephones. Under section 632.6, “[e]very person
who, maliciously and without the consent of all parties to the communication, intercepts,
receives, or assists in intercepting or receiving a communication transmitted between
cordless telephones . . . , between any cordless telephone and a landline telephone, or
between a cordless telephone and a cellular telephone shall be punished by” a fine,
imprisonment, or both. (§ 632.6, subd. (a); see also § 632.6, subd. (c) [defining cordless
telephones as “consisting of two parts—a ‘base’ unit which connects to the public
switched telephone network and a handset or ‘remote’ unit—which are connected by a
radio link”].)
In 1992, the Legislature amended the Cordless and Cellular Radio Telephone
Privacy Act of 1985 to add section 632.7. Section 632.7, subdivision (a), provides in
relevant part: “Every person who, without the consent of all parties to a communication,
intercepts or receives and intentionally records, or assists in the interception or reception
and intentional recordation of, a communication transmitted between two cellular radio
telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a
7
cordless telephone and a landline telephone, or a cordless telephone and a cellular radio
telephone, shall be punished by” a fine, imprisonment, or both.
To summarize: Sections 632.5, 632.6, and 632.7 are all parts of the Cordless and
Cellular Radio Telephone Privacy Act of 1985. Section 632.5 prohibits the malicious
and nonconsensual interception or receipt of cellular phone calls. Section 632.6 prohibits
the malicious and nonconsensual interception or receipt of cordless phone calls. Section
632.7 prohibits the nonconsensual interception or receipt and intentional recording of
cellular and cordless phone calls. That is, section 632.7 differs from sections 632.5 and
632.6 in that it (1) removes the element of malice, (2) adds the element of
(nonconsensual) intentional recording, and (3) covers both cellular phones and cordless
phones in a single code provision.
There are no California cases interpreting sections 632.5, 632.6, and 632.7.
C. Plain Language Interpretation of Section 632.7
LoanMe contends that section 632.7 clearly and unambiguously applies only to
third party eavesdroppers. Smith contends, to the contrary, that section 632.7 clearly and
unambiguously applies to the parties to the phone call as well as to third party
eavesdroppers. The mere existence of the parties’ disagreement does not show that the
statute is unclear or ambiguous. (See Ailanto Properties, Inc. v. City of Half Moon Bay
(2006) 142 Cal.App.4th 572, 597.) We conclude that LoanMe is correct.
Section 632.7 imposes liability on any person “who, without the consent of all
parties to a communication, intercepts or receives and intentionally records” a
8
communication involving a cellular phone or a cordless phone. The statute thus requires
that the interception or receipt of the communication be without the parties’ consent. But
the parties to a phone call always consent to the receipt of their communications by each
other—that is what it means to be a party to the call (or at least that is part of what it
means). In this case, for example, LoanMe consented to Smith’s receipt of LoanMe’s
communications (“Is Mrs. Smith there?”), and Smith consented to LoanMe’s receipt of
Smith’s communications (“No.”). Consequently, the parties to a phone call are incapable
of violating section 632.7, because they do not intercept or receive each other’s
communications without all parties’ consent.
That interpretation of the plain meaning of section 632.7 aligns with the plain
meaning of sections 632.5 and 632.6, whose language section 632.7 borrows. Sections
632.5 and 632.6 impose liability on anyone “who, maliciously and without the consent of
all parties to the communication, intercepts [or] receives” a communication involving a
cellular phone (§ 632.5) or a cordless phone (§ 632.6). Like section 632.7, sections 632.5
and 632.6 cannot apply to the parties to a phone call, because sections 632.5 and 632.6
apply only to someone who intercepts or receives a communication without all parties’
consent. Sections 632.5 and 632.6 thus prohibit only malicious third party eavesdropping
on cordless or cellular phone calls. 5
5 The requirement that the alleged wrongdoer intercept or receive the
communication without all parties’ consent distinguishes sections 632.5, 632.6, and 632.7
from section 632, which also contains a consent requirement but applies it to different
conduct. Section 632 provides that “[a] person who, intentionally and without the
consent of all parties to a confidential communication, uses an electronic amplifying or
9
A contrary interpretation, according to which sections 632.5 and 632.6 apply not
only to third party eavesdroppers but also to the parties to cordless and cellular phone
calls, would be absurd and unintelligible. First, in order for a party to a call to be liable
under either section, the party would have to receive the other party’s communications
without all parties’ consent. We do not see how that is possible. As we have already
explained, if one is a party to a call, then, by that very fact, one consents to the other
party’s receipt of one’s communications—that is (part of) what it means to be a party to
the call. Second, in order for a party to a call to be liable under either section, the party
would have to receive the other party’s communications maliciously. Again, we do not
see how that is possible—it is not clear what it would mean for one party to receive the
other party’s communications with malice. Statutory interpretations that lead to absurd
results are to be avoided. (Tuolumne Jobs & Small Business Alliance v. Superior Court
(2014) 59 Cal.4th 1029, 1037 (Tuolumne).)
There is at least one additional problem with interpreting sections 632.5 and 632.6
as applying to parties and not solely to third party eavesdroppers. The provisions apply
only if at least one of the phones used in the call is a cellular or cordless phone.
Consequently, if the provisions could apply to parties to the call, then they would impose
liability on the basis of factors that are often beyond the putative wrongdoer’s knowledge
recording device to eavesdrop upon or record the confidential communication” shall be
punished by a fine, incarceration, or both. (Italics added.) Although parties to a phone
call always consent to each other’s receipt of their communications, they do not always
consent to the use of an electronic amplifying or recording device to eavesdrop upon or
record the communication. It is consequently unsurprising that section 632 can apply to
the parties to a communication. (Kearney, supra, 39 Cal.4th at pp. 117-118.)
10
or control. For example, if you answered a call on a landline phone maliciously and
without consent (whatever that might mean), then you would thereby be liable if the call
was placed from a cellular phone (§ 632.5) or a cordless phone (§ 632.6) but not if it was
placed from a landline phone. Likewise, if you placed a call from a landline phone
maliciously and without consent (whatever that might mean), then you would thereby be
liable if the call was answered on a cellular phone (§ 632.5) or a cordless phone (§ 632.6)
but not if it was answered on a landline phone. But one often (though not always) has no
way of knowing what kind of phone the other party to a call is using, and no way of
controlling it. Thus, if the statutes were interpreted as applying to parties, they would
impose liability on the basis of pure happenstance. Again, such a result is absurd, and
any interpretation leading to it is to be avoided. (Tuolumne, supra, 59 Cal.4th at p. 1037.)
That problem is not mere speculation or conjecture and is not limited to
sections 632.5 and 632.6. Rather, the same problem arises under section 632.7, and the
alleged facts of the instant case actually illustrate it. LoanMe called Smith’s home, and
Smith allegedly answered the call on a cordless phone. Had Smith answered on a
landline phone, section 632.7 could not apply under any interpretation, assuming LoanMe
too was using a landline. But because of the happenstance that Smith allegedly answered
on a cordless phone—a fact that was absolutely beyond LoanMe’s knowledge or
control—section 632.7 as interpreted by Smith subjects LoanMe to criminal and civil
liability. Once again, the result is absurd.
11
All of those problems with all three statutes are avoided by following the plain
meaning of the requirement that the communication be intercepted or received “without
the consent of all parties,” which all three statutes include. That phrase limits application
of all three statutes to third party eavesdroppers, and that limitation explains why the
statutes treat landlines differently from cellular and cordless phones: The manifest
purpose of all three statutes is to target the greater vulnerability of wireless
communications to third party listening and recording. So interpreted, the statutes do not
impose liability on the basis of factors beyond the knowledge or control of the
wrongdoer. A third party eavesdropping on a wireless communication is ordinarily
aware that the communication is wireless.
In sum, we see no viable alternative to interpreting sections 632.5 and 632.6 as
limited to third party eavesdroppers, because they apply only to persons who intercept or
receive communications without all parties’ consent. Section 632.7 contains the same
restriction in the same language (“without the consent of all parties . . . intercepts or
receives”), and we must interpret section 632.7 in a way that harmonizes it with the
statutory scheme of which it is a part. (Meza, supra, 6 Cal.5th at p. 856.) For all of the
foregoing reasons, we conclude that section 632.7 clearly and unambiguously applies
only to third party eavesdroppers, not to the parties to a phone call.
D. Intercepts or Receives
Smith’s argument to the contrary is based on section 632.7’s use of the phrase
“intercepts or receives.” Smith reasons that because the statute uses both of the terms
12
“intercepts” and “receives,” those terms must refer to different types of conduct.
“Intercepts” is naturally understood as referring to eavesdropping, so “receives” must
refer to something else. And the parties to a phone call do receive each other’s
communications from each other. Therefore, Smith concludes, section 632.7 applies to
the parties to a phone call, because they receive each other’s communications. Several
federal decisions endorse the same line of argument. (See Ades v. Omni Hotels
Management Corp., supra, 46 F.Supp.3d at pp. 1017-1018; Ronquillo-Griffin v. Telus
Communs., Inc., supra, 2017 WL 2779329, at pp. *3-*4; Horowitz v. GC Services Ltd.
Partnership, supra, 2015 WL 1959377, at p. *11; Montantes v. Inventure Foods, supra,
2014 WL 3305578 at p. *3; Simpson v. Best Western Intern., Inc., supra, 2012 WL
5499928, at p. *8; Brown v. Defender Sec. Co., supra, 2012 WL 5308964, at pp. *4-*5.)
We conclude that Smith’s argument lacks merit because it offers no solution to the
fundamental problem identified in Part C, ante: Section 632.7 applies only to persons
who receive (or intercept) communications without all parties’ consent. Because the
parties to a phone call do consent to each other’s receipt of each other’s communications,
section 632.7 cannot apply to them. The federal decisions (with one exception, which we
address in Part E, post) likewise fail to address this point, so we do not find their
reasoning persuasive.
There is a related and equally conclusive reason why Smith’s argument is
meritless. As explained in Part C, ante, sections 632.5 and 632.6 incontrovertibly apply
only to third party eavesdroppers, not to the parties to a call. But sections 632.5 and
13
632.6 employ the same language as section 632.7—they expressly apply to anyone who
“intercepts” or “receives” a wireless communication maliciously and without consent.
Consequently, regardless of what exactly “receives” means in sections 632.5 and 632.6,
and regardless of how it differs from “intercepts,” it must mean some form of
eavesdropping, because sections 632.5 and 632.6 apply only to eavesdropping. And
whatever “receives” means in sections 632.5 and 632.6, it can and presumably does mean
the same thing in section 632.7. Smith’s argument—that in section 632.7 “intercepts”
refers to eavesdropping, so “receives” must refer to something else—therefore fails.
For the foregoing reasons, the precise meaning of “receives” in sections 632.5,
632.6, and 632.7 does not really matter, because sections 632.5 and 632.6 show that both
“intercepts” and “receives” must refer to forms of eavesdropping. One possibility is that
“intercepts” refers to more active, targeted eavesdropping (perhaps directed at a specific
phone number or wireless frequency), while “receives” refers to more passive, less
specific eavesdropping (perhaps via a scanner that sweeps up a broad spectrum of
wireless signals). Another possibility is that “intercepts” refers to eavesdropping in
which the wireless signal is captured and prevented from reaching its intended target,
while “receives” refers to eavesdropping in which the wireless signal reaches its intended
target despite also being picked up by the eavesdropper. But again, regardless of exactly
what “receives” means, sections 632.5 and 632.6 demonstrate that it must mean some
form of eavesdropping.
14
We therefore reject Smith’s argument. The phrase “intercepts or receives” in
section 632.7 does not indicate that the statute applies to the parties to a phone call.
Rather, the statutory language is fully consistent with our interpretation of section 632.7
(and sections 632.5 and 632.6) as applying only to third party eavesdroppers.
E. Brinkley v. Monterey Financial Services, LLC
One federal case contains an additional argument against our interpretation of
section 632.7. In Brinkley v. Monterey Fin. Servs., LLC, supra, 340 F.Supp.3d 1036
(Brinkley), the court concluded that section 632.7 is susceptible of two reasonable
interpretations, and the court used the statute’s legislative history to resolve the
ambiguity. (Brinkley, at p. 1043.) We disagree with the court’s analysis—the statute is
not ambiguous, so resort to its legislative history is not necessary. But we address the
court’s analysis in detail because it is the only argument of which we are aware that
recognizes section 632.7’s consent requirement but ultimately reaches a conclusion
different from our own.
The Brinkley court begins by acknowledging that in section 632.7, the phrase
‘“without the consent of all parties to a communication”’ can reasonably be interpreted as
modifying “both ‘intercepts or receives’ and ‘intentionally records.’” (Brinkley, supra,
340 F.Supp.3d at p. 1043.) That is how we interpret it: The statute is violated only if the
defendant (1) intercepts or receives a communication without all parties’ consent and (2)
15
intentionally records the communication without all parties’ consent. 6 On that
interpretation, the statute cannot be violated if the communication was received with all
parties’ consent.
But the Brinkley court next concludes that the following alternative interpretation
is also reasonable: The statute is violated whenever the defendant (1) intercepts-and-
intentionally-records a communication without all parties’ consent, or (2) receives-and-
intentionally-records a communication without all parties’ consent. (Brinkley, supra, 340
F.Supp.3d at p. 1043.) On that interpretation, the statute is violated if the defendant
receives the communication with all parties’ consent but intentionally records it without
all parties’ consent, because in that situation the parties did not consent to receipt-and-
intentional-recording of the communication. (Ibid.)
We do not agree that such an interpretation of section 632.7 is reasonable. By its
terms, section 632.7 is violated by “[e]very person who, without the consent of all parties
to a communication, intercepts or receives and intentionally records, or assists in the
interception or reception and intentional recordation of, a communication” involving a
cordless or cellular phone. The introductory prepositional phrase “without the consent of
all parties to a communication” appears on its face to modify the entire verb phrase
“intercepts or receives and intentionally records.” We do not believe it is reasonable to
suppose that by such language the Legislature intended to enact a criminal prohibition
6 This is actually an oversimplification, because section 632.7 also applies to a
defendant who assists in the nonconsensual interception or reception and intentional
recording. Sections 632.5 and 632.6 likewise apply to those who assist in the
interception or reception. That complication does not affect our analysis.
16
that can be violated by someone who receives a communication with the consent of all
parties.
The unreasonableness of such an interpretation is apparent when section 632.7 is
considered in light of its predecessors, sections 632.5 and 632.6. Sections 632.5 and
632.6 are violated by “[e]very person who, maliciously and without the consent of all
parties to the communication, intercepts, receives, or assists in intercepting or receiving a
communication” involving a cellular (§ 632.5) or cordless (§ 632.6) phone. The clear
and unambiguous effect of the consent requirement is to limit sections 632.5 and 632.6 to
third party eavesdroppers—the statutes are violated only if the communication was
intercepted or received without all parties’ consent. It is therefore not reasonable to
suppose that when the Legislature enacted section 632.7, it used the same language
(“without the consent of all parties to the communication, intercepts or receives”) to
create a criminal prohibition that can be violated even if the communication was
intercepted or received with all parties’ consent.
For all of the foregoing reasons, we conclude that the alternative interpretation of
section 632.7 identified in Brinkley, supra, 340 F.Supp.3d 1036, is not reasonable. The
analysis in Brinkley therefore does not undermine our prior conclusion that section 632.7
clearly and unambiguously is limited to third party eavesdroppers.
F. Legislative History
Because section 632.7 is clear and unambiguous, we need not consult its
legislative history to determine the statute’s meaning. We discuss the legislative history
17
nonetheless, both out of an abundance of caution and because both Smith and several
federal cases claim that the legislative history shows that section 632.7 was intended to
prohibit recording by the parties to a phone call, not just by third party eavesdroppers.
(See Brinkley, supra, 340 F.Supp.3d at p. 1043; Ronquillo-Griffin v. Telus Communs.,
Inc., supra, 2017 WL 2779329, at *3-*4; Simpson v. Best Western Intern., Inc., supra,
2012 WL 5499928, at *8.) We conclude that Smith and the federal cases are mistaken
and that the legislative history supports our interpretation of section 632.7. 7
When the Legislature enacted section 632.5 in 1985 and section 632.6 in 1990, the
Legislature’s sole concern was that eavesdroppers could more easily access conversations
occurring over cellular and cordless phones than over landline phones. The 1985
legislation was enacted in response to media reports of “widespread eavesdropping on
cellular radio telephone conversations” and of devices “being developed with the sole or
primary purpose of listening in on car telephone conversations.” (Assem. Com. on Pub.
Safety, Analysis of Sen. Bill No. 1431 (1985-1986 Reg. Sess.) Aug. 19, 1985, p. 1.)
Concerned about the ease with which it was “possible to listen in on conversations
randomly picked up by radio scanners and other scanning devices specifically designed to
pick up cellular conversations” (ibid.), section 632.5 was enacted to “establish[ ] criminal
penalties for persons who intercept or eavesdrop on a conversation where one or more
parties uses a radio telephone.” (Legis. Analyst, analysis of Sen. Bill No. 1431 (1985-
7 Smith attempted to file a request for judicial notice of certain portions of the
legislative history, but our clerk’s office rejected the filing because of nonconformance
with procedural requirements. Smith did not refile the request. In any event, we have
reviewed the legislative histories of sections 632.5, 632.6, and 632.7.
18
1986 Reg. Sess.) as Amended Aug. 27, 1985.) In response to the same concern about
cordless telephones, in 1990 section 632.6 was enacted to “prohibit[] the malicious
interception of communications—eavesdropping—between cordless telephones” and
other phones. (Legis. Analyst, analysis of Assem. Bill No. 3457 (1989-1990 Reg. Sess.)
as Amended Apr. 26, 1990.)
The legislative history thus shows that sections 632.5 and 632.6 were intended to
apply only to third party eavesdroppers. The legislative history of sections 632.5 and
632.6 thus supports our interpretation of section 632.7, because (1) the legislative history
shows that sections 632.5 and 632.6 target only eavesdroppers, not the parties to wireless
phone calls; (2) the Legislature wrote that limitation into sections 632.5 and 632.6 by
requiring that the communication be intercepted or received “without the consent of all
parties to the communication” (§§ 632.5, 632.6); and (3) the Legislature used the same
language in section 632.7.
The legislative history of section 632.7 itself, however, is somewhat less clear,
largely because it contains certain statements that appear ambiguous when taken out of
context. For example, the analysis by the Senate Rules Committee quotes the bill’s
author as follows: Under the proposed legislation, “‘[t]he innocent, merely curious, or
non-malicious interception of cellular or cordless telephone conversation will remain
legal. However, it will be illegal to record the same conversations. Henceforth, persons
using cellular or cordless telephones may do so knowing that their conversations are not
19
being recorded.’” 8 (Sen. Rules Com., Off. of Sen. Floor Analyses Rep. on Assem. Bill
No. 2465 (1992 Reg. Sess.) June 1, 1992, p. 3.) Considered in isolation, that passage is
ambiguous. On the one hand, it could mean that it will be illegal for anyone to record
cellular and cordless phone conversations. On the other hand, it could mean that it will
be illegal for eavesdroppers (who are referred to in the first quoted sentence) to record
cellular and cordless phone conversations.
Even without considering the broader context, we find the latter interpretation
more plausible, for two reasons. First, the statement that “it will be illegal to record the
same conversations” must be incomplete, because it omits both the requirement that the
parties do not consent and the requirement that the recording be intentional. Thus, the
lack of an explicit reference to eavesdroppers in that sentence does not mean that the
prohibition on recording is not limited to eavesdroppers. Second, the first quoted
sentence is about eavesdroppers (“interception of cellular or cordless telephone
conversations”), and it is difficult to understand the connection between that sentence and
the two that follow it if they are not similarly limited to eavesdroppers.
8 The Senate Rules Committee quoted extensively from and adopted the statement
of intent from the bill’s author, Senator Connelly. (Sen. Rules Com., Off. of Sen. Floor
Analyses Rep. on Assem. Bill No. 2465 (1992 Reg. Sess.) June 1, 1992, p. 3.) “Although
the motives or understanding of individual legislators cannot be considered in
determining the meaning of the bill, a legislator’s statement is entitled to consideration
‘when it is a reiteration of legislative discussion and events leading to adoption of
proposed amendments rather than merely an expression of personal opinion.’” (Bosley
Medical Group v. Abramson (1984) 161 Cal.App.3d 284, 290.)
Because the author’s statement of intent was incorporated into the Senate Rules
Committee’s analysis, we assume that the author’s understanding of the bill was
considered by the entire Legislature as part of its analysis. (California Teachers Assn. v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 700.)
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Consideration of the broader context confirms that interpretation. The Senate
Rules Committee’s analysis shows that the animating concern behind the legislation is
the vulnerability of wireless communications to eavesdropping. “‘The primary intent’”
of the statute “‘is to provide a greater degree of privacy and security to persons who use
cellular or cordless telephones.’” (Sen. Rules Com., Off. of Sen. Floor Analyses, Rep. on
Assem. Bill No. 2465 (1992 Reg. Sess.) June 1, 1992, p. 3.) Cordless and cellular phones
are “‘inherently[] less secure’” than landlines, which therefore carry “‘a greater
expectation of privacy.’” (Ibid.) But while users of cordless and cellular phones might
consequently assume that their wireless communications are relatively vulnerable to
unauthorized third party listening, they will not “‘reasonably anticipate that their
conversations will be both intercepted and recorded’” (ibid.), that is, recorded by
eavesdroppers. And as the “‘popularity of cellular and cordless telephones’” continues to
grow, “‘the opportunity for unscrupulous individuals to intercept and record
conversations grows.’” (Id. at pp. 3-4.)
Thus, read as a whole, the Senate Rules Committee analysis reflects the
Legislature’s concern about recording of cordless and cellular phone calls by third party
eavesdroppers. The analysis contains not a hint of concern about recording by the parties
to the calls. It is therefore unreasonable to interpret the ambiguous language quoted ante
(“it will be illegal to record the same conversations”) as meaning that the bill would make
it illegal for anyone to record cellular or cordless phone calls. The Legislature was not
interested in recording by parties. The Legislature was targeting recording by
21
eavesdroppers, so it used the same language it had used in sections 632.5 and 632.6,
which target eavesdroppers.
Similar observations hold true of all of the legislative history materials that we
have reviewed. Throughout the legislative history of section 632.7, the Legislature
demonstrates its concern with eavesdropping on wireless communications, and it never
shows any concern about recording by parties. We therefore conclude that the legislative
history supports our interpretation of section 632.7 as limited to third party
eavesdroppers.
To summarize: The plain language of section 632.7 clearly and unambiguously
applies to third party eavesdroppers alone, not to the parties to cellular and cordless
phone calls. The legislative history of section 632.7 confirms that interpretation. We
must therefore affirm the judgment in favor of LoanMe, because Smith alleges only that
LoanMe recorded calls to which LoanMe was a party.
DISPOSITION
The judgment is affirmed. LoanMe shall recover its costs of appeal.
CERTIFIED FOR PUBLICATION
MENETREZ
J.
We concur:
MILLER
Acting P. J.
RAPHAEL
J.
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Smith v. LoanMe, Inc.
Combined Opinion