55 Cal.App.5th 591
Cal. Ct. App.2020Background:
- Yelp operates a sales force that places many outbound calls and uses both two-way (both parties) and one-way (only employee) call recordings for training and quality; Yelp policy required notice before two-way recording.
- Gruber, a California business owner, received a dozen-plus sales calls from Yelp reps (2014–2016) and alleges confidential/embarrassing information was discussed; he claims he was not notified calls were recorded.
- Yelp’s systems engineer and witnesses produced evidence that no two-way recordings of Gruber’s calls were located, but several one-way recordings captured only Yelp reps’ voices; Yelp used a VoIP phone system (ShoreTel).
- The trial court granted Yelp summary adjudication on Penal Code §§632 and 632.7, concluding (a) no two-way recordings existed and (b) CIPA does not cover one-sided recordings; it also found Yelp’s VoIP calls were not within §632.7.
- On appeal the Court of Appeal (1) agreed no triable issue existed that Gruber’s voice was two-way recorded, (2) held sections 632 and 632.7 cover one-sided recordings (recording any part of a communication without consent), and (3) found Yelp failed to carry its summary-judgment burden to show VoIP is outside §632.7 and remanded for further proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there is a triable issue that Yelp two-way recorded Gruber’s voice | Gruber: evidence suggests many calls were two-way recorded and records could exist on servers | Yelp: systems search and witness testimony show no two-way recordings of Gruber | No triable issue; record supports that Gruber’s voice was not two-way recorded |
| Whether Pen. Code §§632 and 632.7 apply to one-sided recordings (only company’s side captured) | Gruber: statute requires consent of “all parties” to record any part of a communication — one-sided recordings fall within CIPA | Yelp: statutes apply only to surreptitious full/concurrent recordings, not when only the company’s voice is captured or when content later repeated | Held for Gruber: §§632 and 632.7 prohibit recording a communication, in whole or part, without consent of all parties; one-sided recordings are covered |
| Whether §632.7 covers calls made via VoIP | Gruber: VoIP may function as landline/cellular and §632.7 could apply; factual question | Yelp: VoIP is not a landline/cellular/cordless device enumerated in §632.7, so statute doesn’t apply | Yelp failed to meet burden at summary stage; whether VoIP falls within §632.7 is a factual question requiring further development |
Key Cases Cited
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment burden and standard)
- Flanagan v. Flanagan, 27 Cal.4th 766 (purpose of CIPA: protect privacy and require consent)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (broad application of §632 to protect communications and require notice)
- Ribas v. Clark, 38 Cal.3d 355 (distinction between secret monitoring/recording and secondhand repetition)
- Kight v. CashCall, Inc., 200 Cal.App.4th 1377 (statutory construction and CIPA interpretation principles)
- Artiglio v. General Electric Co., 61 Cal.App.4th 830 (limits on discovery to defeat summary judgment)
- Dietemann v. Time, Inc., 449 F.2d 245 (privacy distinction between firsthand recording and later repetition)
- Paul Kadair, Inc. v. Sony Corp. of America, 694 F.2d 1017 (limits on discovery prior to summary judgment)