Rojas v. HSBC Card Services Inc.
93 Cal.App.5th 860
| Cal. Ct. App. | 2023Background:
- HSBC recorded all desk-phone calls at its Salinas call center; agents could not disable recording and outbound calls lacked an automated disclosure.
- Alejandra, an HSBC call-agent and Rojas’s daughter, made over 300 personal calls to Rojas from her desk; HSBC produced 302 non-duplicative recordings.
- HSBC maintained written policies (global HR and local Scout) purportedly limiting personal calls, but supervisors testified they knew personal calls occurred and some managers permitted them.
- Rojas received prior notice of recording via her HSBC cardmember agreement and monthly payment calls (automated disclosure: “this call may be recorded”).
- After remand from an earlier appeal, a 2020 bench trial resulted in a defense judgment: the trial court found Rojas failed to prove intent to record and that she lacked consent; the court also awarded HSBC costs, relying on a Code Civ. Proc. § 998 offer.
- The Court of Appeal: concluded substantial evidence did not support the trial court’s no-intent finding but upheld the judgment because the record supported implied consent; it also affirmed the costs award and the validity of HSBC’s § 998 offer.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HSBC had the requisite intent to record (Pen. Code §§ 632, 632.7) | Rojas: full‑time recording + policies authorizing personal calls earlier meant HSBC knew to a substantial certainty recordings would capture confidential/personal calls. | HSBC: workplace policies barred personal desk calls; recordings targeted business calls, so no intent to record personal calls. | Court: Trial court’s no-intent finding lacked substantial evidence; record shows HSBC knew personal calls occurred and recorded them. But this error did not require reversal because of consent ruling. |
| Whether Rojas lacked consent to the recordings (necessary element under §§ 632, 632.7) | Rojas: she did not know calls from her daughter were recorded and did not consent; on-call advisement at outset is required. | HSBC: Rojas had inquiry/actual notice — cardmember agreement and monthly payment-call disclosures — and her continued participation implied consent. | Court: Implied consent is valid; substantial evidence supports finding Rojas was on notice and therefore impliedly consented; judgment affirmed. |
| Whether an explicit, on-call advisement is required to establish consent | Rojas: Kearney and other authority require an explicit advisement at call outset. | HSBC: Kearney identifies on-call advisement as sufficient but not exclusive; prior notices and surrounding circumstances can support implied consent. | Court: On-call advisement is sufficient but not required; prior disclosures and circumstances may establish implied consent. |
| Validity of HSBC’s Code Civ. Proc. § 998 offer and recoverability of costs (expert fees, unused exhibits) | Rojas: the § 998 release was ambiguous and overly broad; expert costs were unsupported and should be reduced given her limited means; unused-exhibit costs improper. | HSBC: Offer was limited to claims in the action; expert and exhibit costs were reasonably necessary and properly documented. | Court: § 998 offer was unambiguous and valid; trial court did not abuse discretion awarding expert fees and unused-exhibit costs; refusal to reduce fees for Rojas’s asserted finances was not an abuse of discretion. |
Key Cases Cited
- LoanMe, Inc. v. Cella, 11 Cal.5th 183 (Cal. 2021) (describing Privacy Act purpose and statutory framework)
- Flanagan v. Flanagan, 27 Cal.4th 766 (Cal. 2002) (defining "confidential communication" and expectation of privacy)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (Cal. 2006) (on-call advisement is sufficient to avoid § 632 liability but not necessarily required in every circumstance)
- Rojas v. HSBC Card Services, Inc., 20 Cal.App.5th 427 (Cal. Ct. App. 2018) (earlier opinion holding triable issue on intent to record; reversed summary judgment)
- Segal v. ASICS, 12 Cal.5th 651 (Cal. 2022) (unused-exhibit costs are not categorically recoverable under § 1033.5(a)(13) but may be awarded in the court’s discretion under § 1033.5(c)(4))
- Griggs-Ryan v. Smith, 904 F.2d 112 (1st Cir. 1990) (federal standard for implied consent: consent inferred from surrounding circumstances showing party knowingly agreed to surveillance)
- Negro v. Superior Court, 230 Cal.App.4th 879 (Cal. Ct. App. 2014) (discussing implied-in-fact consent and distinguishing constructive/imputed consent)