DALIA ROJAS v. HSBC CARD SERVICES INC. et al.
D077931
Court of Appeal, Fourth Appellate District, Division One, State of California
July 20, 2023
CERTIFIED FOR PUBLICATION. (Super. Ct. No. 37-2014-00023795-CU-MC-NC). CONSOLIDATED APPEALS from a judgment and postjudgment order of the Superior Court of San Diego County, Jacqueline M. Stern, Judge, and Cynthia A. Freeland, Judge. Affirmed.
Stroock & Stroock & Lavan, Julia B. Strickland, John R. Loftus, David W. Moon and Christine E. Ellice for Defendants, Cross-appellants and Respondents.
This is the second round of appeals arising from Dalia Rojas‘s lawsuit against HSBC Card Services, Inc. (HSBC Card Services) and HSBC Technology & Services (USA) Inc. (HSBC Tech Services; together, HSBC) for violations of the California Invasion of Privacy Act (Privacy Act;
The trial court granted summary judgment to HSBC, and Rojas appealed. (Rojas v. HSBC Card Services Inc. (2018) 20 Cal.App.5th 427, 431 (Rojas I).) We reversed, concluding HSBC had not met its initial burden to show there was no triable issue of material fact on intent. (Id., at pp. 429, 432.)
On remand, HSBC made a
Rojas appeals from the judgment, contending the trial court made several errors in determining she did not prove her Privacy Act claims and that the evidence did not support its findings. Rojas also appeals from the denial of her motion to strike or tax costs, arguing the
We conclude the trial court applied correct legal standards in assessing lack of consent and substantial evidence supports its finding that Rojas impliedly consented to being recorded. We are compelled to affirm the
FACTUAL AND PROCEDURAL BACKGROUND
I. Underlying Events3
A. HSBC‘s Salinas Facility
During the relevant time period (March 2009 to May 2012), HSBC‘s business included issuing credit cards. HSBC Tech Services provided telephone recording services to HSBC Card Services.
Rojas‘s daughter, Alejandra, worked at the HSBC Card Services call center in Salinas, California (“the Salinas facility“). At this facility, all calls to and from call center agent‘s desk phones (i.e., customer-facing phones) were recorded. There was no way for agents to disable recording on their desk telephones. There was an automated disclosure for inbound calls, which stated “This call is being recorded for quality purposes,” but no automatic outbound recording disclosure.
B. HSBC Workplace Policies Applicable To The Salinas Facility
The Salinas facility was subject to two sets of written policies: “Inside HR,” and “Scout.” Inside HR housed HSBC‘s global, companywide human resources policies. These included an “Electronic Monitoring and Device Use” policy, which stated HBSC “periodically monitors and/or records certain employee telephone conversations.” The policy also stated employees “may use” telephones “for occasional non-work purposes,” and explained, “[P]ersonal calls may be recorded, but should never be monitored; if you identify a personal call in the course of monitoring an employee, the monitoring should be discontinued immediately.”
Scout was a “database of policies and procedures for all operational units,” and had “more relevant information . . . specific to . . . operational areas . . . within the call centers.” These policies included a “Call Avoidance” policy, which barred employees from making outbound calls to avoid taking inbound ones; a “Recording Disclosure to Third Parties” policy, which applied when a non-cardmember was on the line; and a “Call Cardmember Procedure,” for calls to resolve disputes, which said to “[u]se the following suggested dialogue . . . [¶] [T]his call may be recorded and monitored for quality assurance purposes” and required a recording disclosure to third parties.
C. HSBC Records Calls To Rojas
HSBC recorded over 300 calls from Alejandra to Rojas.4 Some calls were made to Rojas‘s cell phone; others were made to her home telephone line, which had both corded and cordless handsets; and still others were to her work telephone at J.C. Penney.
II. Litigation
A. Lawsuit, Summary Judgment, And First Appeal
Rojas sued HSBC for Privacy Act violations in 2014. In her operative first amended complaint, she alleged HSBC “willfully employ[ed] . . . recording . . . equipment” to record her communications “without [her] knowledge or consent . . . .” She asserted one cause of action under
HSBC moved for summary judgment in 2016. The trial court granted summary judgment, Rojas appealed, and we reversed. (Rojas I, supra, 20 Cal.App.5th at p. 431.) We discuss Rojas I in addressing intent, post. Here, it suffices to say we held HSBC did not establish as a matter of law that it
B. Trial
The case proceeded to an eight-day bench trial in 2020. One hundred and nine call recordings were played at trial, and several witnesses testified.6
Richard Marcy, HSBC Tech Services’ head of telecommunications for the United States and Latin America, confirmed the Salinas facility used an automatic recording disclosure on inbound calls, and testified they used employee disclosures for outbound calls. He acknowledged they were able to include an automatic disclosure or beep on outbound calls, but HSBC Card Services decided not to do so. HSBC expert witness Darlene Geller-Stoff testified this was consistent with best practices, and explained that “launching the call with an automated message very, very significantly decreases the chance that the call will be answered . . . .”
Peter Garcia, Jr., a senior branch manager who had worked at call centers including the Salinas facility, testified HSBC trained call center agents to make recording disclosures on all outbound calls. Ivey, who led fraud and disputes at the Salinas facility, explained call disclosures were a “critical” training item, and “one of the things that [they] paid the most attention to.” He acknowledged it was a “risk” the “agent won‘t make the proper disclosure to a merchant . . . .” Marcy similarly testified outbound calls were a concern, “because they knew that not all agents were doing [the
Ivey and Garcia, as well as Salinas department manager Escamilla, also testified HSBC policy barred call center agents from making personal calls from their desks and agents would be disciplined or subject to corrective action for this conduct.7
Rojas and Alejandra also testified at trial. Rojas lived with Alejandra, and Alejandra‘s two children (Rojas‘s grandchildren); Alejandra‘s boyfriend Enrique (the children‘s father); and Rojas‘s boyfriend. Rojas worked at J.C. Penney and assisted Alejandra with childcare on her days off. Rojas knew Alejandra worked for HSBC Card Services. Rojas had an HSBC Mastercard, and received a recording disclosure when she called HSBC to pay her bill each month. Rojas testified that if she needed to talk to Alejandra, she would call Alejandra‘s cell phone, Alejandra would see the missed call, and would call back on her desk phone. When Alejandra called her, Rojas did not receive “any indication” her calls were being recorded. Rojas said she “didn‘t have a phone number for Alejandra at her work.”
Alejandra explained she would call Rojas back from her work phone, because they “weren‘t allowed to use [their] cell phones.” She subsequently testified her boyfriend Enrique had her HSBC landline extension, and would call her at that number. Alejandra acknowledged that if her “mother . . . boyfriend, anyone . . . called in on the incoming line,” the incoming call would
The call recordings played at trial included a call in which Rojas completed a sale to a J.C. Penney customer while talking to Alejandra, and calls to her home with others present, including one call that was “mostly a conversation between [Enrique] and Alejandra,” with Rojas joining at the end. The recordings also reflected background noise at the call center, including a “voice speaking in the background on [one] call,” and Rojas acknowledged Alejandra sometimes “had to speak softly” because she “didn‘t want the conversation to be overheard” and that, at one point, Rojas said, “Talk to me louder” and Alejandra responded, “I can‘t, I‘m at work.”
Ramirez, who was Alejandra‘s direct manager, testified she was aware Alejandra was making personal calls from her desk. Escamilla, who was Alejandra‘s “next-level manager” for a time, testified Alejandra was not permitted to make personal calls from her cubicle, but she was not aware of such calls.
C. Statement of Decision
After the bench trial, the trial court issued a proposed statement of decision finding in favor of HSBC. Rojas filed objections. The court adopted its proposed statement as the final statement of decision.
The trial court explained there were 106 call recordings at issue, as it accepted into evidence only the 109 recordings played during trial and Rojas declined to pursue three calls to her J.C. Penney work phone line. In ruling on Rojas‘s Privacy Act claims, the court determined Rojas “fail[ed] to prove the necessary elements of intent and lack of consent,” which are “essential elements” under both
D. Judgment and Postjudgment Proceedings
In July 2020, the trial court entered judgment for HSBC. HSBC filed its memorandum of costs. Rojas moved to strike or tax costs, which the trial court denied.
Rojas appealed from the judgment, and subsequently appealed from the order denying her motion to tax costs. We requested supplemental briefing from the parties regarding a recent California Supreme Court decision concerning recoverable costs for unused trial exhibits. (Segal v. ASICS (2022) 12 Cal.5th 651 (Segal).)
DISCUSSION
I. Rojas‘s Appeal From Judgment After Court Trial
Rojas challenges the trial court‘s determinations regarding intent, consent, confidentiality under
1. California Invasion of Privacy Act
The California Invasion of Privacy Act was enacted to ” ‘protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation.’ ” (Smith v. LoanMe (2021) 11 Cal.5th 183, 191 (LoanMe), citing Flanagan v. Flanagan (2002) 27 Cal.4th 766, 768–769 (Flanagan); see Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 122 (Kearney) [“it is unlawful under California law for a party to a telephone conversation to record the conversation without the knowledge of all other parties to the conversation“]; id. at p. 125 [state has “strong and continuing interest in the full and vigorous application” of the Privacy Act].)
“Other provisions within the statutory scheme reflect updates that have been made from time to time in response to the emergence of new communication devices.” (LoanMe, supra, 11 Cal.5th at p. 191; ibid. [“The Legislature augmented the statutory scheme in 1985, 1990, and 1992 ‘to take account of privacy issues raised by the increased use of cellular and cordless telephones.’ “].)
2. Standard of Review
“It is a fundamental rule of appellate review that the judgment appealed from is presumed correct.” (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.)
“We apply well-established standards of review to a judgment based upon a statement of decision issued after a bench trial. [Citation.] We review questions of law de novo and we review the trial court‘s findings of fact under the substantial evidence standard.” (Gajanan Inc. v. City and County of San Francisco (2022) 77 Cal.App.5th 780, 791–792.)
” ‘When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.’ ”
We also “must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision,” unless a party timely files objections identifying omissions or ambiguities. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48 (Fladeboe).) We review “implied factual findings under the substantial evidence standard.” (Id. at pp. 59–60.)
Only prejudicial error is grounds for reversal. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 573–574 (Soule).) It is the appellant‘s burden to “show not only that the trial court erred, but also that the error was prejudicial. . . .” (Hoffman Street, LLC v. City of West Hollywood (2009) 179 Cal.App.4th 754, 772.)
Rojas contends the trial court erred in assessing intent to record under
1. Additional Facts
HSBC manager Ivey testified calls were recorded for “quality purposes” and to have evidence of what took place in conversations with merchants and consumers. Ivey, as well as HSBC managers Garcia and Escamilla, also testified HSBC prohibited call center agents from making personal calls from their desks.
Specifically, Ivey stated “personal calls were a violation of the rules” and “not allowed.” He explained it was covered in training that agents could make non-recorded calls from a manager‘s desk (for urgent calls), and a phone bank in the lobby (for non-urgent ones). He agreed the Call Avoidance Policy, which barred “outbound personal calls from [one‘s] desk” was “one of the written policies that instructed employees not to make personal calls,” while acknowledging it “focused on employees who were receiving [inbound] calls from customers.” He said there were also “specific documents within Scout . . . that personal phone calls from [one‘s] desk were not allowable,” but they “weren‘t able to be found.” When asked about the Inside HR Electronic Monitoring policy‘s treatment of personal calls (including that they “may be
Ivey further testified there was progressive discipline for violating personal call policies, which could result in an agent‘s termination. He “knew that call agents were making personal calls,” and was aware of a half-dozen employees who were terminated for this conduct during the relevant time period. He agreed there were “potentially others” who would have been dealt with at lower management levels.
Garcia, a senior branch manager who previously worked at the Salinas facility, testified new hires were told personal calls on desk phones “were not allowed.” He agreed personal calls could lead to progressive discipline ending in an employee‘s termination, and he had “come across an employee making a personal call,” and asked them to stop. Like Ivey, he testified “there was a written policy prohibiting personal calls” in Scout, but it was missing.
Salinas facility department manager Escamilla similarly testified personal calls were not permitted in employees’ work areas, but were allowed from the lobby phone bank. She also indicated employees could make cell phone calls from the lobby, cafeteria, or patio. She recalled a written “policy against personal calls,” stating it “should be in one of the HR policies” and her best recollection was that it was a “company-wide” policy and also addressed cell phone use.
Ramirez, Alejandra‘s direct manager at the Salinas facility, also testified about personal call policies and practices. She recalled that during her own training, they were told they “really shouldn‘t use our phone on our desk to make personal calls,” and there were lobby phones they could use, but did not remember anything in writing. She knew calls could be recorded.
Alejandra addressed personal call policies and practices, as well. Her job duties at certain times included monitoring calls and updating policies, and she did not remember seeing a written policy barring personal calls from desk phones, and never worked on such a procedure. She also did not recall Ramirez telling her personal calls could not be made from her work space, and did not think personal calls had to be confined to emergencies or child care. Rather, she called Rojas when she “needed to talk to her,” but acknowledged “no one ever told [her] . . . that this was an acceptable practice . . . .” She also acknowledged the Call Avoidance Policy applied to her when she was logged into the queue to receive calls.
The trial court found Rojas failed to prove HSBC‘s intent to record the calls between Rojas and Alejandra. The court explained: “HSBC prohibited agents (such as Alejandra) from placing personal calls . . . at their desk,” noting the evidence that “HSBC had a written policy prohibiting personal calls,” “informed its employees” about it, and enforced it through progressive discipline “ending in potential termination.” The court also found HSBC trained employees to make personal calls on “managers’ non-recorded
Addressing an argument by Rojas that recording is intentional if there is “knowledge to a substantial certainty” that it will capture a confidential communication, the trial court said the standard “applies only to [s]ection 632” and Rojas “failed to satisfy [it] in any event . . . .” Rather, the court stated, “HSBC implemented policies and procedures that would prevent ‘confidential’ communications . . . from occurring,” such as informing agents their desk phones were subject to recording, using automated disclosures on incoming calls, and requiring disclosures on outbound calls to third parties. The court further stated, “Even if HSBC knew that a personal call may occasionally take place and therefore be recorded, this does not, without more, lead to the conclusion that a confidential communication within the meaning of Section 632 would take place because even the parties to a personal call should have reasonably expected under these circumstances that it could be overheard, monitored, or recorded.”
2. Applicable Law
In Rojas I, this court reversed summary judgment for HSBC, focusing solely on intent to record. (Rojas I, supra, 20 Cal.App.5th at p. 432.) At the time, the undisputed facts were that HSBC used a “full-time telephone call recording system“; it recorded the calls ” ‘on purpose’ “; and its Electronic Monitoring policy authorized employees to use company telephones for personal calls and advised them ” ‘personal calls may be recorded.’ ” (Id. at p. 433.) We held HSBC did not “establish[] as a matter of law that it did not have ‘knowledge to a substantial certainty that [its] use of the equipment w[ould] result in the recordation of a confidential conversation’ of an employee and a third party like Rojas.” (Id. at p. 436.) Rather, we stated, a “reasonable trier of fact could find that HSBC had the requisite intent under sections 632(a) and 632.7(a).” (Id. at p. 435.) We explained: “[T]he . . . calls at issue here were not recorded ’ “by chance” ’ or ’ “innocent[ly].” ’ HSBC knew that it was recording—and, indeed, purposefully was recording—all of the calls, having previously told its employees that they were authorized to use HSBC telephones for personal use and that their personal calls might be recorded.” (Ibid.)
Rojas contends the trial court finding that she failed to prove intent “does not withstand the substantial evidence test.” We agree.
HSBC‘s trial theory was that because its workplace policies banned personal calls, it did not intend to record those calls. This theory rests on the premise that the ban worked, such that HSBC did not know personal calls were being made and thus recorded. The trial court accepted HSBC‘s theory, finding Rojas failed to prove intent because HSBC barred agents from making personal calls at their desks and the calls at issue were “made . . . without HSBC‘s knowledge.” The court also disagreed HSBC knew confidential calls were being recorded, citing its recording disclosures and reasonable privacy expectations. But the record negates HSBC‘s theory, and the court‘s findings. Not only did HSBC policies not prevent personal calls, but HSBC managers knew they were happening and Alejandra‘s manager even permitted them. These facts, coupled with HSBC‘s full-time recording system, meant HSBC knew personal calls were being recorded—including any such calls that were confidential (for
First, to the extent HSBC had a policy barring personal calls from agents’ desk phones, that does not establish such calls actually were prevented—particularly in the absence of a single, clear policy governing personal calls and uniform enforcement of those policies. HSBC managers Ivey, Garcia, and Escamilla did testify there was a written policy prohibiting such calls, but Ivey and Garcia indicated it was a Scout policy which could no longer be found, while Escamilla thought it was a company-wide HR policy
That Scout policies are more specific than HR policies, as Ivey testified and HSBC urges here, does not necessarily minimize confusion for a manager trying to implement both. We also disagree with HSBC that the Electronic Monitoring policy instruction to avoid “listen[ing] to any personal calls” shows it “did not intend to record these calls in the first place.” The instruction implies HSBC anticipated personal calls would be recorded.
Second, and critically, there was undisputed evidence HSBC managers knew personal calls were being made, including by Alejandra, while HSBC concededly recorded all calls from agent‘s desk phones at the Salinas facility. (Cf. Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377 (Kight I) [company was potentially liable under
We thus disagree with HSBC that Ramirez “did not testify that she allowed [Alejandra] to make the hundreds of routine personal calls that are at issue” here. (Emphasis omitted.) That is the only reasonable inference from Ramirez‘s testimony. Nor are we persuaded by HSBC‘s contention that Ramirez‘s “allowance of personal calls in limited circumstances was contrary to HSBC‘s official policy for call center employees,” pursuant to which it notes Ramirez herself was trained to make personal calls from the lobby. Ramirez did not remember a written policy barring personal calls, and presumably viewed her management practices as acceptable. If anything, her apparent failure to implement HSBC‘s desired personal call policy illustrates the significant risk in relying on corporate workplace policies to limit Privacy Act liability.
Third, and in turn, there is no support for the trial court‘s finding that HSBC lacked ” ‘knowledge to a substantial certainty’ ” that confidential calls were being recorded (i.e., the standard under
In sum, notwithstanding HSBC‘s personal call policies, HSBC knew personal calls were being made from call center agents’ desk phones, and was recording any such calls that were made—whether confidential, to a cellular or cordless phone, or otherwise. We conclude this undisputed evidence established HSBC had knowledge to a substantial certainty that its full-time recording system in Salinas would result in the recording of a confidential conversation under
However, as we explain next, substantial evidence does support the trial court‘s finding that Rojas failed to prove lack of consent to record, meaning her Privacy Act claims fail.
C. Lack Of Consent
Rojas contends the trial court applied incorrect legal standards in determining she did not prove HSBC lacked her consent to record the conversations with Alejandra. We disagree, and further conclude substantial evidence supports the court‘s finding that Rojas impliedly consented to being recorded.13
1. Additional Facts
Rojas had an HSBC Mastercard, and knew Alejandra worked for HSBC Card Services at a call center. When asked if she had a “credit card with HSBC Card Services,” Rojas said “yes.”
HSBC‘s cardmember agreement contained a section titled “Monitoring Practices,” which stated, “You agree that we may listen to and record phone calls between you and our representatives.” The agreement indicated “we” and “our” meant “HSBC Bank Nevada, N.A.”
HSBC manager Ivey testified it was a “normal course of action, and . . . within the requirements” for the agreement to be sent to a cardmember. Denise Mitchell, an HSBC senior manager of relationship management, offered similar stipulated testimony that it was “standard business procedure for [C]ard [S]ervices to send a copy of the cardmember agreement to the
Rojas testified that to make her HSBC credit card payment, she called the “1-800 number” customer service line “once a month.” She would receive a disclosure that said, “This call may be recorded.” When asked “what did you understand with regard to that particular call,” Rojas said, “That my call will be recorded.”
Rojas denied she had “any knowledge that [her] personal telephone calls [with Alejandra] were being recorded by HSBC” until this lawsuit. She also denied giving HSBC permission to record her personal calls.
The trial court found Rojas failed to prove lack of consent. The court explained she “called HSBC every month to pay her HSBC Mastercard bill,” “heard an automated call recording disclosure every time,” and “was or should have been aware that calls to and from HSBC‘s call center were likely to be recorded.” The court further explained “the HSBC cardmember agreement sent to cardmembers such as [Rojas] . . . contained an express call recording disclosure.” The court found “[b]oth forms of disclosure would have placed [Rojas] on notice of recording and [she] therefore impliedly consented to the recording of her calls,” citing Negro v. Superior Court (2014) 230 Cal.App.4th 879, 892 (Negro) and its discussion of implied-in-fact consent. The court concluded the evidence “more than establishes this level of inquiry notice,” and at least “precludes [Rojas] from meeting her burden of proving lack of consent under both Sections 632 and 632.7, as required.” The court elsewhere noted Rojas “not only consented to receive the calls from HSBC,” but she “also solicited the calls from HSBC by triggering a request that Alejandra return her call from work.” (Some emphasis omitted.)
Rojas argues the trial court erred in analyzing consent, because “binding law” purportedly requires an ” ‘explicit advisement’ at the outset of . . . recorded conversations.” She then argues the court‘s “application of ‘implied consent’ is incorrect,” and the court improperly “[created] . . . a whole new construction of ‘consent’ ” by “interpret[ing] . . . consent to mean implied consent based on ‘inquiry notice . . . .’ ” Rojas arguably appears to mean that, to the extent implied consent even applies under the Privacy Act, the trial court got it wrong. Her position lacks merit.
a. Implied Consent Under The Privacy Act
As a preliminary matter, implied consent constitutes “consent” under the Privacy Act.
In Kearney, supra, a choice of law case, the California Supreme Court tacitly acknowledged a party‘s consent to recording can be implied after adequate notice. (Kearney, supra, 39 Cal.4th at pp. 99-100, 120 [reversing judgment after demurrer; California broker clients could sue Georgia company branch under
b. Explicit Advisement Of Recording On Each Call Is Not Required
Rojas contends that “[t]o put a consumer on ‘adequate notice’ that his or her call is being monitored or recorded, binding law holds there must be an ‘explicit advisement’ at the ‘outset of the recorded conversations,’ ” citing Kearney and Kight I, supra, 200 Cal.App.4th at page 1377. We disagree. As we shall explain, neither Kearney, nor Kight I, stands for this proposition, and multiple federal courts that have addressed the issue have determined an explicit, on-call advisement is not required under the Privacy Act.
First, the California Supreme Court stated in Kearney that an on-call advisement was sufficient to avoid violating
Second, neither Kight I, nor our later decision in Kight II, held an on-call recording disclosure is required; indeed, these cases make clear that prior disclosures are relevant to expectations regarding monitoring and recording under the Privacy Act. In Kight I, we reversed a summary adjudication ruling that live, secret monitoring did not violate
In Kight II, we affirmed a decertification order, and confirmed monitoring expectations for confidentiality purposes turn on one‘s particular circumstances—including for those who did not receive on-call disclosures. (Kight II, supra, 231 Cal.App.4th at p. 133 [“surrounding circumstances . . . may include the party‘s own conduct and background“]; id. at p. 130 [plaintiffs had “ongoing business relationship with the defendant” and “many . . . may have heard a monitoring disclosure statement at least once“]; id. at p. 132 [“Although the outbound calls did not include a disclosure message, . . . individual issues remain for outbound-call class members regarding the reasonableness of the claimed expectation of privacy under the circumstances.“]; cf. Hataishi v. First Am. Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1457, 1467 [affirming denial of class certification for outbound call recipients; “[N]othing in the language of [§] 632 or the case law interpreting ‘confidential communication’ suggests that recording a conversation without advising the other party constitutes a per se violation of the statute“].)
Finally, multiple federal court opinions, which we find persuasive, have held that consent can be implied under the Privacy Act without an explicit advisement on each call.15 (See, e.g., Maghen v. Quicken Loans Inc. (S.D.Cal. 2015) 94 F.Supp.3d 1141 (Maghen I), affirmed at Maghen v. Quicken Loans Inc. (2017) 680 Fed.Appx. 554, 555 (Maghen II) [plaintiff‘s consent to recording shown by, inter alia, agreement to terms of service and employee informing plaintiff at outset he worked for Quicken and was calling about online inquiry]; Moledina v. Marriott Int‘l, Inc. (C.D.Cal. Oct. 17, 2022) ___F.Supp.3d___, 2022 WL 16630276, at *7 (Moledina) [“surrounding circumstances” indicated plaintiff “implicitly consented to being recorded“]; Torres v. Nutrisystem, Inc. (C.D.Cal. 2013) 289 F.R.D. 587, 594-595 (Torres) [denying class certification; consent would require individualized inquiries].)16
Maghen I is instructive. The plaintiff requested information from Lending Tree and received calls from one of its network lenders, Quicken. (Maghen I, supra, 94 F.Supp.3d at p. 1143.) The calls were recorded, and Maghen sued Quicken under the Privacy Act. (Ibid.) The district court
c. Trial Court Did Not Incorrectly Apply Implied Consent
Rojas next contends the “explanation of implied consent” in Griggs-Ryan v. Smith (1st Cir. 1990) 904 F.2d 112 (Griggs-Ryan) is “instructive“; it focuses on “knowing[] agree[ment] . . . to the surveillance“; and the trial court “disregarded” this standard. She argues the court improperly “[created] . . . a whole new . . . consent” standard based on ” ‘inquiry notice,’ ” and factors like whether she “should have been aware” of recording. We agree Griggs-Ryan provides guidance on implied consent, but disagree the trial court erred in analyzing implied consent here.
First, Griggs-Ryan involved the federal wiretapping law, under which it is “not unlawful . . . for a person . . . to intercept a . . . communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception.” (
“[I]mplied consent is ‘consent in fact’ which is inferred ‘from surrounding circumstances indicating that the [party] knowingly agreed to the surveillance.’ [Citations.] . . . The circumstances . . . will vary from case to case, but . . . will ordinarily include language or acts which tend to prove (or disprove) that a party knows of, or assents to, encroachments on the routine expectation that conversations are private.”
(Griggs-Ryan at pp. 116-117; accord, Negro, supra, 230 Cal.App.4th at p. 892 [describing implied consent standard in wiretapping context, quoting Griggs-Ryan]; see Berry, at p. 1009 [“The key question in such an inquiry obviously is whether parties were given sufficient notice.“].)17
Federal cases have cited Griggs-Ryan and Negro (or cases using similar language) in addressing implied consent under the Privacy Act, and we conclude this application was appropriate. (See, e.g., Brinkley, supra, 2022 WL 4111871, at *5 [“[§] 632.7 does not define ‘consent,’ which may be implied“; citing Negro]; Nei Contracting & Eng‘g, Inc. v. Hanson Aggregates Pac. Sw., Inc. (S.D.Cal. Sept. 15, 2016) 2016 WL 4886933, at *3 [citing Griggs-Ryan and Negro, inter alia, for implied consent standards]; cf. Moledina, supra, 2022 WL 16630276, at *7 [implied consent can exist where ” ‘surrounding circumstances indicat[e] that the party to the call knowingly agreed to the surveillance’ “].)18
Second, Rojas does not establish the trial court failed to apply the foregoing implied consent standards. The court‘s analysis reflects it focused on specific circumstances that showed Rojas knew HSBC recorded calls (e.g., disclosures in the cardmember agreement and her monthly payment calls), and found “[b]oth forms of disclosure would have placed [her] on notice of recording,” such that her continued participation in calls from HSBC established her implied consent to recording of the calls. (See Griggs-Ryan, supra, 904 F.2d at pp. 117-118; Negro, supra, 230 Cal.App.4th at p. 892; see Berry, supra, 146 F.3d 1003, at p. 1011 [“key question” is “whether parties
3. Substantial Evidence Supports The Trial Court‘s Consent Finding
We now turn to the record and, as we must, we consider all evidence, and draw all inferences, in favor of the judgment. (Durante, supra, 29 Cal.App.5th at p. 842.)19 Substantial evidence supports the trial court‘s finding that Rojas impliedly consented to the recording of Alejandra‘s calls from HSBC, and therefore did not prove lack of consent under the Privacy Act (
First, the record supports the trial court‘s finding that Rojas was “placed . . . on notice“—that is, she was notified—that the calls at issue were subject to recording. Rojas testified she had an HSBC credit card, and knew Alejandra worked for HSBC at a call center. Thus, Rojas knew the same company both issued her credit card and ran the call center from which Alejandra called her. And, as the trial court found, Rojas‘s cardmember agreement for her HSBC credit card and her monthly payment calls disclosed that HSBC records calls. On these facts, the court could find Rojas was notified that, and therefore knew, the calls from Alejandra at HSBC were subject to recording.
We reject Rojas‘s claim that the disclosures did not provide meaningful notice of recording. We do not reweigh the evidence (Thompson, supra, 6 Cal.App.5th at p. 981), and Rojas‘s specific objections lack merit. On the cardmember agreement, she contends it states, “You agree that we may listen to and record phone calls between you and our representatives,” and “we” is defined only as HSBC Bank Nevada, N.A., not HSBC Card Services or
As for the payment calls, Rojas argues the message only said “may be recorded,” and did not address future or personal calls. Rojas testified she understood “may be recorded” meant the particular call was being recorded, and that she made payment calls once per month—meaning she was being reminded about HSBC‘s recording practices on a continuing basis. (Cf., e.g., Torres, supra, 289 F.R.D. at p. 594 [contrasting caller who heard disclosure “several months prior,” from caller who heard disclosure on preceding call].) The fact that the recording disclosure on her monthly calls to HSBC did not address personal calls does not help Rojas, either. By stating the call “may be
Second, Rojas participated in numerous calls with Alejandra made from an HSBC call center phone, after receiving the prior recording disclosures. (See Griggs-Ryan, supra, 904 F.2d at p. 114 [tenant continued to receive calls after being advised of recording by landlady]; cf. Kearney, supra, 39 Cal.4th at p. 118 [if a “party does not wish to participate . . . he or she simply may decline to continue the communication“].) Indeed, as the trial court found, the record shows Rojas effectively solicited such calls. Although Alejandra could receive inbound calls, did receive them from her boyfriend, and agreed such calls had automatic recording disclosures, Rojas would call Alejandra‘s cell phone and Alejandra would call her back from her HSBC line—with no automatic recording disclosure. Regardless of why Rojas called Alejandra in this manner, the trial court could find she was aware of HSBC‘s recording practices from the prior disclosures, and chose to receive calls from an employee at HSBC (Alejandra).21
Finally, we recognize Rojas testified she did not know she was being recorded, and would not have continued the calls had she known. But the trial court could impliedly reject this testimony as not credible, or weigh the
We conclude substantial evidence amply supports the trial court‘s finding that Rojas impliedly consented to HSBC‘s recording, and thus did not prove lack of consent. Because lack of consent is a required element under both
II. Rojas‘s Appeal from Denial of Motion to Strike Or Tax Costs
Rojas appeals from the trial court‘s postjudgment order denying her motion to strike or tax costs. She contends HSBC‘s
A. Additional Facts
1. HSBC Makes A Section 998 Offer And Later Seeks Costs
HSBC made a
“[D]efendants [HSBC Card Services] and [HSCB Tech Services] hereby offer to compromise and settle all claims of plaintiff Dalia Rojas (“Plaintiff“) against HSBC in the above-captioned action, on the following terms: 1. Within thirty (30) days of written acceptance of this offer, HSBC agrees to pay $11,000.00 to Plaintiff; [[] 2. Upon acceptance of this offer and within ten (10) days from receipt of the above-referenced payment, Plaintiff will dismiss with prejudice her claims in the above-captioned action, against HSBC and release HSBC of all liability to Plaintiff; and [[] 3. Each party will bear its own attorneys’ fees and costs.”
Rojas did not accept the offer.
2. Rojas Moves To Strike Or Tax Costs
Rojas moved to strike or tax costs. She argued the
3. HSBC‘s Opposes Rojas‘s Motion To Strike Or Tax Costs
HSBC filed an opposition, which maintained the
4. Trial Court Denies Rojas‘s Motion And Awards Costs
The trial court denied Rojas‘s motion, and awarded HSBC‘s requested costs of $61,716.90.
First, the trial court determined the
“Here, the 998 Offer is plainly between Plaintiff and Defendants and facially references only this lawsuit. Defendants clearly intended that Paragraph 2‘s liability release provision be narrowly applied to Plaintiff‘s claims in this lawsuit rather than hypothetical claims in other current or future actions. Paragraph 2, read in conjunction with the introductory paragraph, is clearly one term to Defendants’ ‘offer to compromise and settle all claims of plaintiff Dalia Rojas against HSBC in the above-captioned action. . . .’ Moreover, Paragraph 2‘s language immediately preceding the liability release provision alludes only to Plaintiff‘s ‘claims in the above-captioned action.’ ”
Second, the trial court denied Rojas‘s request to strike or tax the expert costs. It noted post-offer expert costs are available under
Third, the trial court indicated it had discretion to “consider [Rojas‘s] economic situation in fashioning a reasonable award of costs” under
Finally, the trial court denied Rojas‘s request to strike or tax costs for exhibits not used at trial. It explained exhibit-related costs “are allowable . . . provided they were reasonably helpful to aid the trier of fact,” citing
post, the California Supreme Court subsequently resolved the split in Segal, supra, 12 Cal.5th at p. 657, and held unused exhibit costs may be recoverable, albeit on more limited grounds than stated in the Court of Appeal decision.
B. Applicable Law
A “prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (
”
“All costs, whether expressly permitted under [
The opposing party may move to strike or tax costs. (
We “review a trial court‘s determination on which costs are reasonably necessary and reasonable in amount under the abuse of discretion standard.”
In addition, ” ‘[a] prevailing party who has made a valid pretrial offer pursuant to
“We independently review whether a section 998 settlement offer was valid.” (Ignacio, supra, 2 Cal.App.5th at p. 86.)22
1. The Section 998 Offer Was Valid
Most of Rojas‘s costs arguments involve the section 998 offer, thus we begin there. First, she argues the offer was invalid, because the “most logical interpretation” is that the phrase ” ‘release HSBC of all liability to Plaintiff goes beyond the scope of the current lawsuit . . . .’ ” We disagree.
“In interpreting a section 998 offer, general contract principles apply when they neither conflict with nor defeat the statute‘s purpose of encouraging the settlement of lawsuits prior to trial.” (Staffpro, supra, 119 Cal.App.4th at p. 268.) We ” ‘focus[] on the usual and ordinary meaning of the language used and the circumstances under which the agreement was made.’ ” (Chinn v. KMR Property Management (2008) 166 Cal.App.4th 175, 183–184 (Chinn), disapproved on another ground in DeSaulles v. Community Hospital of Monterey Peninsula (2016) 62 Cal.4th 1140, 1158.) The “meaning of a contract must be derived from reading the whole of the contract, with individual provisions interpreted together . . . .” (Zalkind v. Ceradyne, Inc. (2011) 191 Cal.App.4th 1010, 1027; see Bravo v. RADC Enterprises, Inc. (2019) 33 Cal.App.5th 920, 923 [“we read documents to effectuate and harmonize all contract provisions“].) A contract is ambiguous only if it “is susceptible to more than one reasonable interpretation.” (Fremont Indemnity Co v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114.)
Here, the opening paragraph of the section 998 offer states HSBC Card Services and HSBC Tech Services “offer to . . . settle all claims of plaintiff Dalia Rojas . . . against HSBC in the above-captioned action on the following terms.” The offer then sets forth the terms: an $11,000 payment to Rojas (paragraph 1); a provision requiring each party to bear its own attorney‘s fees and costs (paragraph 3); and, pertinent here, paragraph 2: “Plaintiff will
Both the plain language of the offer, and its structure, reflect it applies only to this case. The opening paragraph expressly states the offer is to settle “claims . . . in the above-captioned action,” based on terms it then sets forth. The terms in paragraphs 1 and 3 are plainly limited to this case. In Paragraph 1, HSBC agrees to make an $11,000 payment to Rojas; HSBC was not promising to make future payments to her. Paragraph 3 requires the parties to bear their own fees and costs; the parties were not agreeing to forego fees and costs in future actions. Viewing paragraph 2 in light of the opening paragraph‘s language, and the operation of the other terms, the entire paragraph must be construed as limited to this case—not just the “will dismiss” portion, as Rojas urges. If anything, the repetition of “above-captioned action” in paragraph 2 emphasizes the offer‘s limits. (Cf. Linthicum v. Butterfield (2009) 175 Cal.App.4th 259, 272 (Linthicum) [“The terms costs, fees and ‘mutual dismissal’ are obviously limited to the instant lawsuit. There is no reason to interpret the term ‘all current claims’ found in the same sentence as referring to anything other than the same lawsuit.“]; Chen, supra, 164 Cal.App.4th at p. 123 [criticizing “selective[] quoting” of the settlement offer].)
Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899 (Goodstein), is instructive. The defendant bank in a slander of title and negligence action
Here too, “clear and unambiguous language” in the opening paragraph limits the rest of HSBC‘s offer to the instant case—meaning the liability release in paragraph 2 “reasonably cannot” extend to future litigation. (Goodstein, supra, 27 Cal.App.4th at p. 907.)
Rojas argues Goodstein is distinguishable, because “there are specific wording and phrasing distinctions,” as the offer there did not say “action” in either the dismissal or release provisions (showing, she claims, that both referred to the opening paragraph) and used the term “general release” (not “all liability“). “But Goodstein‘s point is not that a section 998 offer must contain any particular language. Instead, its point is that the general rules of contract construction apply to section 998 offers.” (Linthicum, supra, 175 Cal.App.4th at p. 272; ibid. [rejecting attempt to distinguish offer because it “contain[ed] no language similar to ‘in full settlement of this action’ “].)
Rojas‘s remaining arguments are not persuasive, either.
First, she contends the trial court‘s determination that the offer was “unambiguous and not susceptible to [her] interpretation” was “contrary to the law that the offer must be strictly construed in favor of [her].” (See Sanford v. Rasnick (2016) 246 Cal.App.4th 1121, 1129 [a “section 998 offer must be strictly construed in favor of the party sought to be subjected to its operation“].) We disagree. Courts construe language for or against a party when other interpretive principles have been exhausted. (Chinn, supra, 166 Cal.App.4th at p. 184 [addressing § 998 offers; citing rule under
Second, Rojas argues that if HSBC had “intended to clearly limit” the liability release to this case, it would have said “release HSBC of all liability to Plaintiff related to the above-entitled action.” (See Auburn Woods I Homeowners Assoc. v. State Farm Gen. Ins. Co. (2020) 56 Cal.App.5th 717, 726 [release provision referenced “the ACTION“].) She also argues “HSBC‘s intent to expand the release beyond . . . this action is further illustrated by [its] use of the word ‘liability’ as opposed to ‘claim,’ ” citing dictionary definitions of the terms. We reject these arguments, too. No “particular language” is required for a section 998 offer, and HSBC‘s offer, viewed as a whole, was unambiguous. (Linthicum, supra, 175 Cal.App.4th at p. 272; see Berg v. Darden (2004) 120 Cal.App.4th 721, 731 [no ” ‘magic language’ ” is needed].)
Finally, the cases cited by Rojas are distinguishable. Unlike here, the offers in those cases encompassed litigants or claims beyond the present action. (See Valentino v. Elliott Sav-On Gas Inc. (1988) 201 Cal.App.3d 692,
2. The Trial Court Did Not Err in Awarding Expert Costs
Rojas next contends the trial court “erred by allowing expert costs that were not supported by sufficient evidence showing that the fees charged were reasonable or that the charges were reasonably necessary . . . .” She does not establish any abuse of discretion by the trial court.
First, the trial court did not err by concluding Rojas failed to meet her burden in challenging HSBC‘s costs. “If items on a memorandum of costs appear to be proper charges on their face, those items are prima facie evidence that the costs, expenses, and services are proper and necessarily incurred. [Citations.] The burden then shifts to the objecting party to show them to be unnecessary or unreasonable.” (Doe v. Los Angeles County Dept. of Children & Family Servs. (2019) 37 Cal.App.5th 675, 693.) “[M]ere statements” in a motion to strike and attorney declaration “are insufficient to rebut the prima facie showing.” (Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266.) The court found HSBC‘s claimed expert costs were facially proper, and thus prima facie evidence of necessity—meaning the
Second, Rojas does not establish the trial court abused its discretion by finding that, regardless of her burden, HSBC‘s evidence established its expert costs were reasonable and necessary. Under section 998, if a defendant‘s offer is “not accepted and the plaintiff fails to obtain a more favorable judgment,” the court “may require the plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert witnesses . . . actually incurred and reasonably necessary in either, or both, preparation for trial . . ., or during trial . . ., of the case by the defendant.” (
Rojas disputes four expenses here: a “limousine” ride for $165; “[m]eals in the amount of $273.43“; 1.8 hours of “[a]dministrative” time entries totaling $675; and 72.8 hours of other time entries, totaling $27,150. We address each in turn.
a. “Limousine” Ride
With respect to the “limousine” charge for $165, Rojas argues “[n]othing indicates how use of a luxury ‘[l]imousine’ as opposed to a regular car via Uber or Lyft was reasonably necessary . . . .” Transportation may be a necessary and reasonable expense. (See Thon v. Thompson (1994) 29 Cal.App.4th 1546, 1548–1549.) Rojas appears to assume “limousine” was a factual description of the vehicle (not just branding), and that it was more expensive than alternative forms of transport. But she identifies no evidence for these assumptions. (Compare Thon, at p. 1549 [where counsel conceded he took charter flight to save attorney fees for client, court erred by awarding more than commercial flight cost].) The trial court was within its discretion to find the cost reasonable.
b. Meals
For the $273.43 in meal costs, Rojas argues the receipts do not show how many people participated or what was ordered, and that a 50 percent tip for one meal was excessive. It is not clear the 50 percent tip was even part of the claimed meal costs.24 In any event, as the trial court recognized, HSBC‘s expert was from Georgia, and meal expenses for interstate travel may be recovered. (Cf. Howard v. Am. Nat. Fire Ins. Co. (2010) 187 Cal.App.4th at
c. Administrative Work and Other Entries
Finally, Rojas contends the entries for $675 of administrative work and other entries totaling $27,150 lacked sufficient detail. For the latter, her only specific contention is that many entries state “Document Review,” and there is no way to determine what documents were reviewed, whether the work was duplicative, or if the review time was excessive. But section 998 allows expert costs “reasonably necessary in . . . preparation for trial,” and both administrative work and document review may be necessary. (
Further, the trial court found HSBC‘s evidence was “sufficiently specific” to determine the reasonableness of the claimed costs. Rojas does not establish any specific level of detail was required. (See Jones, supra, 63 Cal.App.4th at p. 1267 [no requirement that “copies of bills, invoices, statements, or any other such documents be attached to the [costs] memorandum“]; Thon, supra, 29 Cal.App.4th at pp. 1548–1549 [disagreeing court erred by, inter alia, “awarding costs absent sufficient detail of the expenditures“; defendant supplied itemized costs and attorney declaration asserting necessity, and “absent an explicit statement by the trial court to the contrary, it is presumed the court properly exercised its legal duty“]; cf. Syers Props. III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 699 [attorney‘s fees; ” ‘Because time records are not required under California law . . . , there is no required level of detail that counsel must achieve’ “].)
Rojas also argues the trial court abused its discretion in setting the section 998 costs, by purportedly failing to consider undisputed facts regarding her limited economic means. The court did consider Rojas‘s situation, and reasonably found her evidence insufficient to limit costs.
In awarding costs under section 998, a court has “discretionary authority” to “consider[] . . . a party‘s ability to pay when determining the appropriate recovery under that statute.” (LAOSD Asbestos Cases (2018) 25 Cal.App.5th 1116, 1127 (LAOSD); see Santantonio v. Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 125, fn. 7 [§ 998 “permits the trial court, via exercise of discretion, to consider a party‘s ability to pay costs.“]; cf. Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1561 (Seever) [trial court “must take account of the offeree‘s economic resources,” disapproved on other grounds in Segal, supra, 12 Cal.5th at p. 668, fn. 5].)
Here, the trial court recognized it had discretion to consider Rojas‘s economic situation and ability to pay, and did consider it. However, the court found it could not conclude she was “incapable of paying” the expert costs, explaining she provided “bare declaratory testimony as to her monthly income” and “no information regarding, inter alia, her monthly expenses or ability to obtain financial assistance from third parties.” These findings were reasonable, as assessing economic circumstances requires information about both income and expenses. (See LAOSD, supra, 25 Cal.App.5th at p. 1127 [evidence of inability to pay includes ” ‘gross income, . . . net income, . . . monthly expenses, . . . assets, or any other information which . . . would lend support to [the party‘s] position,’ ” (italics added)].)
We are not persuaded by Rojas‘s contention that it was “undisputed” her ” ‘extremely low’ ” income “barely covers her necessary living expenses,
The trial court could fairly conclude Rojas did not justify a reduction in expert costs under section 998. Although we might not have reached this result, we cannot say the court‘s decision was outside the bounds of reason.
4. The Trial Court Did Not Err in Awarding Unused Exhibit Costs
Finally, Rojas contends the trial court erred by allowing costs for “models, enlargements, and photocopies of exhibits that were not admitted at trial . . . .” We disagree.
At the time of the cost proceedings below and briefing here, there was a “split of appellate authority regarding whether costs associated with unused demonstratives and photocopies of trial exhibits are recoverable, either categorically under
First, under the California Supreme Court‘s decision in Segal, the trial court did not err by awarding costs for unused trial exhibits. (Segal, supra, 12 Cal.5th at p. 657.) Although the court erroneously determined the costs were allowable under
Second, Rojas does not establish the trial court abused its discretion in evaluating the unused exhibit costs. She argued in her opening brief that the “court failed to consider or analyze” whether these costs “were reasonably helpful to the trier of fact,” but rather, “blanketly concluded that the costs were reasonable and necessary, and reasonably helpful to aiding the trier of fact.” The court was in the best position to draw these conclusions, including the necessity and reasonableness determinations pertinent to
In her supplemental brief, Rojas argues the trial court improperly failed to place the burden of proof for “costs . . . not expressly authorized by statute” on HSBC. Even if this were error, it would be harmless. HSBC provided evidence for the exhibit costs, the court could conclude the evidence
In sum, Rojas does not establish the trial court erred by denying her motion to strike or tax HSBC‘s costs.
The judgment and postjudgment order are affirmed. HSBC shall recover its costs on appeal.
IRION, J.
I CONCUR:
HUFFMAN, Acting P. J.
The two operative privacy statutes —
A
In the context of this case, the concept of “implied” consent requires that the consenting party, knowing that the phone calls will be recorded, take action (typically, continuing with the phone call) that impliedly indicates agreement to permit the recording. Here, applying a deferential “substantial evidence” standard of review, the majority opinion affirms the trial court‘s purported factual finding that Rojas impliedly consented. But it‘s not nearly that simple.
First and foremost, the trial court never determined that Rojas knew the calls were being recorded. (See Griggs-Ryan v. Smith (1st Cir. 1990) 904 F.2d 112, 117 [plaintiff must have ” ‘knowingly agreed to the surveillance’ “].) Rather, it concluded that she was on “inquiry notice” and “should” or “would” have been aware of the recordings. But this is the wrong legal standard. (Id. at p. 116 [“implied consent is not constructive consent“].) It is not enough that Rojas objectively should have known the calls were being recorded, much
less that an inquiry (which she did not conduct) would have led her to that conclusion. Instead, the question is subjective—did Rojas agree to having the calls recorded? If she was told the call would be recorded and did not thereafter “decline to continue the communication” (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 118 (Kearney)), there would be a sufficient basis to conclude she impliedly consented to the recording. But proceeding with a phone call cannot imply consent if Rojas wasn‘t aware it was being recorded. Any asserted neglect on her part in not asking if the calls were recorded cannot create consent. By applying the wrong standard, the trial court committed legal error, and its resulting conclusion cannot be reviewed for substantial evidence.
The majority opinion suggests that any legal error in misstating the legal standard was harmless “because substantial evidence still supports the court‘s consent findings.” (Maj. opn., ante, at p. 33.) But this misapplies the standard for prejudice. The question is not whether there is enough evidence to support a finding of implied consent, but instead whether Rojas can show a reasonable probability of a more favorable result had the court applied the correct standard. (Strouse v. Webcor Construction, L.P. (2019) 34 Cal.App.5th 703, 718.) As the Supreme Court has emphasized, ” ‘probability’ in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.)
The trial court‘s brief discussion of consent in its statement of decision gives no indication that it found Rojas was actually aware the calls were being recorded. Indeed, had it made that finding, there would have been no need to mention the inapplicable concepts of “inquiry notice” and whether Rojas “should have been aware” of the recordings. Given the nature of the
B
As the Supreme Court observed in Kearney, “California consumers are accustomed to being informed at the outset of a telephone call whenever a business entity intends to record the call.” (39 Cal.4th at p. 118, fn. 10.) At that point, the consumers “simply may decline to continue the communication” if they do not want to be recorded. (Id. at p. 118.) On the other hand, if they proceed with the call it is reasonable to infer they impliedly consented to the recording.
In this case, there is no dispute that HSBC did not inform Rojas “at the outset” of any call with her daughter that anything was going to be recorded. Instead, HSBC and the trial court relied on two advisements that Rojas received in an entirely different context, unrelated to any phone call with her daughter. She received both, fortuitously, because she happened to be an HSBC credit card customer; neither had anything to do with her daughter‘s employment at an HSBC call center. In my view, neither supports a finding of implied consent.
The first of these advisements is contained in a prolix 14-page “Cardmember Agreement” sent to Rojas because she applied for a credit card. Included under a heading “Monitoring Practices,” sandwiched between “Account Closure” and “Change of Terms,” the cardmember is told, “You agree that we may listen to and record phone calls between you and our representatives.” Elsewhere in the agreement there are two references to phone calls. The cardmember can “call[ ] the number on the back of your
The second advisement relied on by HSBC and the trial court was the automated one Rojas said she heard when she called the number on the back of her credit card to make a monthly payment and was told, ” ‘This call may be recorded.’ ” The fact that this call may be monitored, or even this kind of
call—i.e., one by the cardmember to HSBC to make a payment—does not give notice that an entirely different and unrelated kind of call—a personal one by an HSBC employee to her mother—will likewise be recorded.
Equally significant, HSBC was forced to rely on these inapplicable and inadequate advisements because it consciously chose not to provide actual notice to call participants. Questioned about the automated advisements that greeted the caller on every incoming call to the call center, HSBC representatives conceded it was similarly feasible to include an automated advisement on outgoing calls made from the call center, but that the company declined to do so for business reasons because such an advisement would “significantly decrease[] the chance that the call will be answered.” In other words, HSBC believed that if customers really knew the call was being recorded, many would not consent to participate. And it was better from HSBC‘s business perspective to keep them in the dark and address any resulting privacy issues at a later time, if and when they arose.
C
Applying the proper legal standard, Dalia Rojas did not knowingly consent to HSBC recording personal phone calls that her daughter—an HSBC employee—made to her from work. She was never advised at the outset of any call that it would be recorded, as California consumers are accustomed to. (Kearney, supra, 39 Cal.4th at p. 118, fn. 10.) Neither of the two totally unrelated advisements pointed to by HSBC and relied on by the trial court gave Rojas any notice that calls from her daughter were being recorded, such that she could then decide whether she wanted to discontinue the call.
DATO, J.