Rojas v. HSBC Card Servs. Inc.
20 Cal. App. 5th 427
| Cal. Ct. App. 5th | 2018Background
- From Mar 23, 2009 to May 1, 2012 HSBC used a full‑time telephone recording system that recorded all calls on designated company lines.
- HSBC recorded 317 confidential personal calls between an HSBC employee (Rojas’s daughter or friend) and Rojas; none involved HSBC business.
- HSBC's written policy told employees personal calls "may be recorded" and authorized personal use of company phones.
- Rojas sued under Penal Code §§ 632(a) and 632.7(a) alleging intentional, nonconsensual recording of confidential telephone and cellular/cordless communications.
- HSBC moved for summary judgment arguing it lacked intent to record any specific call; the trial court granted judgment for HSBC.
- The Court of Appeal reversed, holding HSBC failed to meet its initial burden on summary judgment because a reasonable factfinder could find HSBC intentionally recorded the calls.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether HSBC "intentionally" recorded Rojas's confidential calls for purposes of §§ 632(a) and 632.7(a) | HSBC operated and knew it operated a continuous recording system that captured all calls, so it intentionally recorded the calls | Mere installation/activation of a recorder or lack of intent to record specific calls means no statutory intent; recordings were incidental or caused by employees' use | HSBC did not establish as a matter of law that it lacked the requisite intent; triable issue exists and summary judgment was improper |
Key Cases Cited
- People v. Superior Court (Smith), 70 Cal.2d 123 (setting test for "intentional" recording: purpose to record confidential communication or knowledge to a substantial certainty that use will record one)
- People v. Buchanan, 26 Cal.App.3d 274 (distinguishing inadvertent or momentary overhearing from intentional recording)
- Flanagan v. Flanagan, 27 Cal.4th 766 (Privacy Act requires consent of all parties to recording)
- Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826 (summary judgment burdens and shifting analysis)
- Marich v. MGM/UA Telecommunications, Inc., 113 Cal.App.4th 415 (applying Smith intent standard)