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Name: Smith v. LoanMe
Case #: S260391
Court: CA Supreme Court
District CalSup
Opinion Date: 04/01/2021

Opinion By: Chief Justice Cantil-Sakauye (unanimous decision)
Penal Code section 632.7 prohibits parties as well as nonparties from intentionally recording a communication transmitted between a cellular or cordless phone and another device without the consent of all parties to the communication. Defendant extended a loan to plaintiff’s wife. When defendant called the wife, plaintiff answered the phone, informing defendant that his wife was not available. The call lasted 18 seconds. It was recorded by defendant, who did not inform the plaintiff the call was recorded, although there was a “beep” three seconds into the call. Plaintiff sued defendant for recording the call without his consent in violation of section 632.7 (a violation of this statute can be pursued civilly and lead to the assessment of damages and other appropriate relief). The trial court found the “beep” gave notice of the recording. The reviewing court held that section 632.7 did not apply to parties to the call, but only nonparties, i.e., eavesdroppers. The California Supreme Court granted review. Held: Reversed. Section 632.7, subdivision (a) makes it a crime when a person “without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between” a cellular or cordless telephone and another telephone. The statutory language could be interpreted to apply to both parties to the conversation as well as nonparties, although the statute is not so clear as to be unambiguous in this regard. Here, the court concluded the most sensible reading of section 632.7, subdivision (a) is that the prohibition against intentional recording without the consent of all parties should be construed as applicable to parties as well as nonparties. The legislative history confirms this interpretation. It reflects that section 632.7 was intended to provide greater privacy and security to persons who use cellular or cordless telephones and to be a general prohibition against the intentional recording of a covered communication without the consent of all parties, regardless of whether the recording is performed by a party to the communication or by someone else.