*429In the underlying operative complaint, plaintiff Dalia Rojas pleaded two causes of action against defendants HSBC Card Services Inc. and HSBC Technology & Services (USA) Inc. (together HSBC) based on HSBC's alleged violations of Rojas's right to privacy under the California Invasion of Privacy Act (Privacy Act), Penal Code section 630 et seq.
Rojas appeals from a summary judgment in favor of HSBC. We agree with Rojas that, because HSBC did not meet its initial burden under Code of Civil Procedure section 437c, subdivision (p)(2), the trial court erred in granting HSBC's motion for summary judgment. Accordingly, we will reverse the judgment and remand with directions to enter an order denying HSBC's motion.
I.
FACTUAL AND PROCEDURAL BACKGROUND
" 'Because this case comes before us after the trial court granted a motion for summary judgment, we take the facts from the record that was before the trial court when it ruled on that motion.' " ( Wilson v. 21st Century Ins. Co. (2007)
*430From at least March 23, 2009, through May 1, 2012, HSBC employed a full-time telephone call recording system.
During this time period, HSBC recorded 317 of Rojas's telephone conversations from calls made to Rojas on an HSBC company telephone. Rojas's daughter, who was employed by HSBC Card Services Inc., placed 316 of the calls, and Rojas's friend, who was also an HSBC employee, placed one of the calls. In its "Electronic Monitoring and Device Use" written policy in effect at the time, HSBC authorized its employees to use company telephones for personal calls, expressly advising them in writing that their "personal calls may be recorded." All 317 of the calls were Rojas's "private personal telephone conversations"; and HSBC acknowledges that none involved HSBC business.
Based on the foregoing facts, Rojas sued HSBC for alleged violations of the Privacy Act. Rojas's first amended complaint contains two causes of action against HSBC.
*431HSBC brought a motion for summary judgment or, in the alternative, summary adjudication of each cause of action. HSBC argued that both causes of action fail because, as a matter of law, HSBC did not intentionally record any of Rojas's telephone calls.
Rojas opposed the motion. With regard to the issue whether HSBC intentionally recorded the telephone calls, Rojas argued both that HSBC had not met its initial burden, but even if it did, that there were triable issues of material fact. HSBC replied to Rojas's opposition.
Following oral argument, the trial court took the matter under submission, ultimately granting HSBC's motion for summary judgment. The court entered judgment in favor of HSBC, and Rojas timely appealed.
II.
STANDARDS OF APPELLATE REVIEW
Because the trial court's judgment is " 'presumed correct ,' " Rojas (as the appellant) has the burden of establishing reversible error. ( Denham v. Superior Court (1970)
We review de novo an order granting summary judgment. ( Aguilar v. Atlantic Richfield Co. (2001)
*432A defendant like HSBC is entitled to a summary judgment on the basis that the "action has no merit" ( Code Civ. Proc., § 437c, subd. (a) ) only where the court is able to determine from the evidence presented that "there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" (id. , subd. (c) ). A cause of action "has no merit" if one or more of the elements of the cause of action cannot be established or an affirmative defense to the cause of action can be established. (Id. , subd. (o).)
Thus, the moving defendant has the ultimate burden of persuasion that one or more elements of the cause of action at issue "cannot be established" or that "there is a complete defense to the cause of action." ( Code Civ. Proc., § 437c, subd. (p)(2) ; Aguilar , supra , 25 Cal.4th at pp. 849, 850, 853-854,
Applying these concepts in our de novo review of the grant of a summary judgment, therefore, we first must determine whether HSBC's initial showing establishes an entitlement to judgment in HSBC's favor. ( Aguilar , supra , 25 Cal.4th at p. 850,
*644Swigart,
In interpreting the statutes at issue, as with all statutory interpretation, we attempt "to ascertain and effectuate the law's intended purpose." ( Weatherford v. City of San Rafael (2017)
III.
DISCUSSION
To establish a violation of either section 632(a) or section 632.7(a), in addition to other elements, both statutes require a showing that HSBC "intentionally " recorded the confidential telephone calls at issue. (Italics added; see fns. 5 and 6, ante .) The issue on appeal is whether, for purposes of determining a potential violation of section 632(a) or section 632.7(a), as a matter of law, HSBC did not intentionally record the telephone calls to which Rojas was a party.
*433HSBC attempted to meet its initial burden on summary judgment by establishing that Rojas could not show that HSBC intentionally recorded the calls. At times HSBC argues that it did not intend to record any specific call that, in fact, contained Rojas's confidential communications, and at times HSBC argues that it did not intend to record any specific call between Rojas and her daughter. Based on HSBC's actions and the statutory language at issue, however, neither position is defensible. Consistent with her position in the trial court, Rojas argues that, because HSBC was using, and knew it was using, a full-time telephone call recording system that recorded all calls during the period of time when HSBC recorded the 317 conversations at issue, HSBC intentionally recorded the calls that contained Rojas's confidential communications-in violation of both section 632(a) and section 632.7(a).
In enacting the Privacy Act in 1967, the Legislature made the following findings:
"[A]dvances in science and technology have led to the development of new devices and techniques for the purpose of eavesdropping upon private communications and that the invasion of privacy resulting from the continual and increasing use of such devices and techniques has created a serious threat to the free exercise of personal liberties and cannot be tolerated in a free and civilized society." ( § 630 ; Stats. 1967, ch. 1509, p. 3584, § 1.)
Even more helpful to our analysis, in 1967 the Legislature declared its original intent, which was "to protect the right of privacy of the people of this state." ( § 630 ; Stats. 1967, ch. 1509, p. 3584, § 1.) Thirty-five years later, the California Supreme Court described the objective of the Privacy Act as follows: "The purpose of the act was to protect the right of privacy by, among other things, requiring that all parties consent to a recording of their conversation." ( Flanagan v. Flanagan (2002)
In ruling on HSBC's motion, the trial court was presented with the following *645facts: HSBC recorded (and maintained the recordings of) 317 confidential telephone calls in which Rojas was a party; these recordings were made by a full-time telephone call recording system that was always in operation, recording all calls made from the designated HSBC company telephone; HSBC knew that its full-time recording system was "recording every phone call" on any designated telephone; with the full-time system, HSBC recorded the telephone calls "absolutely on purpose"; and HSBC authorized its employees to use company telephones for personal calls, expressly advising them that their "personal calls may be recorded."
Despite this evidence, none of which HSBC disputed , HSBC contends that it did not "intentionally"-for purposes of sections 632(a) and 632.7(a)-*434record the 317 calls at issue. According to HSBC, "the mere act of HSBC installing a recording device on company phones and 'by chance' recording non-work related calls between [Rojas] and [her d]aughter does not satisfy the 'intentional' requirement of [s]ections 632 and 632.7." We disagree. HSBC relies on Smith, supra,
In Smith , a criminal case, the issue was whether certain tape recorded conversations were obtained in violation of former section 653j, the predecessor to section 632 under consideration here.
The Supreme Court began its analysis by rejecting the defendant's statutory interpretation that "intent to record" meant just putting the recording equipment in operation. ( *646Smith, supra, 70 Cal.2d at p. 132,
In remanding the matter to the trial court to determine whether the investigator intentionally recorded the confidential communication,
Under this standard, HSBC did not meet its initial burden of establishing, as a matter of law, that it lacked the requisite intent to trigger a violation of section 632(a) or section 632.7(a). Contrary to the defendant in Smith , HSBC did not merely record confidential communications while testing its recording equipment; in the language of the Smith opinion, the 317 calls at issue here were not recorded " 'by chance' " or "innocent[ly]." ( Smith, supra, 70 Cal.2d at pp. 133, 134,
HSBC's other authority, Buchanan, supra ,
A considerable portion of HSBC's brief focuses on HSBC's disclosures to Rojas's daughter regarding HSBC's practice of recording calls, Rojas's daughter's knowledge of HSBC's company policy of recording calls, and Rojas's knowledge that the 317 calls were being placed to her from HSBC telephones.
For the foregoing reasons, HSBC did not meet its burden of establishing 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. ( Smith, supra, 70 Cal.2d at p. 134,
DISPOSITION
The judgment is reversed, and on remand the trial court is directed to enter an order denying HSBC's motion for summary judgment or, in the *437alternative, summary adjudication of Rojas's first amended complaint. Rojas is entitled to her costs on appeal. ( Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR:
HUFFMAN, Acting P.J.
DATO, J.
Unless otherwise indicated, further undesignated statutory references are to the Penal Code.
At that time, HSBC also used a part-time telephone recording system, but it is not at issue in this appeal-except to the extent we can infer from its use that HSBC knew how to record some, but not all, calls.
HSBC explains that, during the relevant time period, it used telephone recording systems to record calls " 'to provide training and feedback [to employees], as well as ensure compliance and quality service to our customers.' " Rojas does not question HSBC's explanation for or stated business purpose of these systems; nor do we.
The first amended complaint contains additional plaintiffs, names additional defendants, and asserts additional causes of action. None of these parties or claims is at issue in this appeal.
Section 632(a) precludes "[a] person" from "intentionally and without the consent of all parties to a confidential communication[ ] us [ing] a[ ] ... recording device to ... record the confidential communication ... carried on ... by means of a ... telephone...."
Section 632.7(a) precludes "[a] person" from, "without the consent of all parties to a communication, intercept[ing] or receiv[ing] and intentionally record[ing] ... a communication transmitted between ... a cellular radio telephone and a landline telephone ... [or] a cordless telephone and a landline telephone ...."
Although sections 632(a) and 632.7(a) provide only for criminal penalties, section 637.2 provides the following civil remedies: Subdivision (a) allows for a civil penalty of $5,000 "per violation" for each violation of section 632(a) and 632.7(a), or three times the actual amount of damages, if any (§ 637.2, subd. (a) ); and subdivision (b) allows for injunctive relief to "restrain any violation" of section 632(a) or section 632.7(a) (§ 637.2, subd. (b) ).
HSBC's motion raised other arguments as well. However, because we will be concluding that HSBC did not meet its initial burden of establishing that it did not "intentionally" record the calls for purposes of sections 632(a) and 632.7(a)-a necessary element in each of Rojas's causes of action against HSBC (see fns. 5 and 6, ante )-the resolution of those issues will not affect the disposition of the appeal. Thus, we neither reach nor express an opinion on them.
The language involving intent in former section 653j, subdivision (a), is the same as in section 632(a). (Smith, supra , 70 Cal.2d at p. 131, fn. 7,
The defendant sought to exclude the recordings from evidence at his criminal trial. (Smith, supra , 70 Cal.2d at p. 125,
The remand was necessary, because generally determination of the issue whether "a person possessed the requisite intent [under the Privacy Act ] is 'a question of fact .' " (Smith, supra , 70 Cal.2d at p. 134,
For example, HSBC suggests that "the recordings were merely incidental and caused by [Rojas's d]aughter's improper use of HSBC's company phone." HSBC does not explain what it means by "improper use" of the phone, since its written policy authorized its employees to use company telephones for personal calls, expressly advising them that their "personal calls may be recorded." Moreover, HSBC does not explain how Rojas's daughter's use of the telephone affects Rojas's claim, since Rojas was not subject to HSBC's policies on employee telephone use. The uncontested facts on this record are that, regardless of what Rojas's daughter may have known or consented to, Rojas never knew about or consented to the recording of any telephone calls.