Weiner v. ARS National Services, Inc.
2012 U.S. Dist. LEXIS 120157
S.D. Cal.2012Background
- Defendant ARS National Services, Inc., a California corporation, allegedly records calls with California residents without consent under Cal. Penal Code § 632.
- Plaintiff Allan Weiner files a FAC in state court alleging a § 632 violation based on a 28-second call where recording was disclosed during the call.
- Transcript shows Defendant’s representative stated the call was being recorded; Plaintiff expressed discomfort and the call ended.
- Plaintiff claims Defendant secretly recorded/monitored a confidential telephonic communication that Plaintiff expected to be private.
- Plaintiff filed the initial complaint August 17, 2011; FAC was filed December 22, 2011 and removed to federal court January 23, 2012.
- Court grants Defendant’s motion to dismiss the FAC without leave to amend, concluding Plaintiff failed to plead an objectively reasonable expectation of privacy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Plaintiff had an objectively reasonable expectation of privacy. | Confidential nature of the call warrants privacy protection. | No reasonable expectation given circumstances and brief, non-private interaction. | No; no objective reasonable expectation existed. |
| Whether the pleading plausibly states a § 632 claim under Iqbal/Twombly. | Facts support a confidential communication and recording without consent. | Facts insufficient to raise a plausible claim of confidentiality and recording. | No; pleading fails to meet plausibility standard. |
| Whether dismissal without leave to amend was proper. | Amendment could cure pleading defects. | Amendment would be futile given the undisputed facts. | Yes; dismissal without leave to amend was proper. |
Key Cases Cited
- Flanagan v. Flanagan, 27 Cal.4th 766 (Cal. 2002) (confidentiality test for § 632 is objective)
- Frio v. Superior Court, 203 Cal.App.3d 1480 (Cal. Ct. App. 1988) (confidentiality factors to assess reasonableness)
- Coulter v. Bank of America, 28 Cal.App.4th 923 (Cal. Ct. App. 1994) (objective test for confidentiality; subjective intent irrelevant)
- Kearney v. Salomon Smith Barney, Inc., 39 Cal.4th 95 (Cal. 2006) (outset disclosure of recording; reasonable expectation of privacy analysis)
- Right v. CashCall, Inc., 200 Cal.App.4th 1377 (Cal. Ct. App. 2011) (confidentiality and recording in consumer communications)