This case was last updated from Los Angeles County Superior Courts on 06/09/2021 at 13:43:49 (UTC).

JOANCLAIR RICHTER VS PROGRESSIVE CASUALTY INSURANCE COMPANY

Case Summary

On 12/28/2020 JOANCLAIR RICHTER filed a Personal Injury - Other Personal Injury lawsuit against PROGRESSIVE CASUALTY INSURANCE COMPANY. This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES E. BLANCARTE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    *******0694

  • Filing Date:

    12/28/2020

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Judge

JAMES E. BLANCARTE

 

Party Details

Plaintiff

RICHTER JOANCLAIR

Defendant

PROGRESSIVE CASUALTY INSURANCE COMPANY

Attorney/Law Firm Details

Plaintiff Attorney

GREER JOSHUA C.

Defendant Attorney

VILLALOBOS AMANDA

 

Court Documents

Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

6/8/2021: Minute Order - Minute Order (Hearing on Demurrer - without Motion to Strike)

Reply (name extension) - Reply Defendant Progressive Casualty Insurance Companys Reply Memorandum Of Points And Authorities In Support Of Demurrer To Plaintiffs First Amended Complaint

6/1/2021: Reply (name extension) - Reply Defendant Progressive Casualty Insurance Companys Reply Memorandum Of Points And Authorities In Support Of Demurrer To Plaintiffs First Amended Complaint

Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

5/24/2021: Demurrer - without Motion to Strike - Demurrer - without Motion to Strike

Request for Judicial Notice - Request for Judicial Notice

5/7/2021: Request for Judicial Notice - Request for Judicial Notice

Amended Complaint - Amended Complaint (1st)

4/7/2021: Amended Complaint - Amended Complaint (1st)

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

2/22/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Proof of Service by Mail - Proof of Service by Mail

2/22/2021: Proof of Service by Mail - Proof of Service by Mail

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

2/22/2021: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Proof of Service by Mail - Proof of Service by Mail

2/16/2021: Proof of Service by Mail - Proof of Service by Mail

Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

2/18/2021: Notice of Rejection Default/Clerk's Judgment - Notice of Rejection Default/Clerk's Judgment

Proof of Service by Mail - Proof of Service by Mail

2/18/2021: Proof of Service by Mail - Proof of Service by Mail

Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

2/18/2021: Request for Entry of Default / Judgment - Request for Entry of Default / Judgment

Summons - Summons on Complaint

1/14/2021: Summons - Summons on Complaint

Notice: Waiver of Court Fees (Superior Court) - Notice: Waiver of Court Fees (Superior Court)

1/6/2021: Notice: Waiver of Court Fees (Superior Court) - Notice: Waiver of Court Fees (Superior Court)

Civil Case Cover Sheet - Civil Case Cover Sheet

12/28/2020: Civil Case Cover Sheet - Civil Case Cover Sheet

Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

12/28/2020: Notice of Case Assignment - Limited Civil Case - Notice of Case Assignment - Limited Civil Case

First Amended Standing Order - First Amended Standing Order

12/28/2020: First Amended Standing Order - First Amended Standing Order

Complaint - Complaint

12/28/2020: Complaint - Complaint

9 More Documents Available

 

Docket Entries

  • 01/02/2024
  • Hearing01/02/2024 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Failure to File Proof of Service

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  • 06/27/2022
  • Hearing06/27/2022 at 08:30 AM in Department 25 at 312 North Spring Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 06/08/2021
  • DocketMinute Order (Hearing on Demurrer - without Motion to Strike)

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  • 06/08/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 06/08/2021 at 10:30 AM in Spring Street Courthouse at Department 25 Not Held - Taken Off Calendar by Court on 06/08/2021

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  • 06/01/2021
  • DocketReply Defendant Progressive Casualty Insurance Companys Reply Memorandum Of Points And Authorities In Support Of Demurrer To Plaintiffs First Amended Complaint; Filed by: Progressive Casualty Insurance Company (Defendant)

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  • 05/24/2021
  • DocketDemurrer - without Motion to Strike; Filed by: Joanclair Richter (Plaintiff)

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  • 05/10/2021
  • DocketHearing on Demurrer - without Motion to Strike scheduled for 06/08/2021 at 10:30 AM in Spring Street Courthouse at Department 25

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  • 05/07/2021
  • DocketRequest for Judicial Notice; Filed by: Progressive Casualty Insurance Company (Defendant)

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  • 05/07/2021
  • DocketDeclaration Declaration Of Amanda Villalobos In Support Of Defendants Demurrer To Plaintiffs First Amended Complaint; Filed by: Progressive Casualty Insurance Company (Defendant)

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  • 05/07/2021
  • DocketDemurrer - without Motion to Strike; Filed by: Progressive Casualty Insurance Company (Defendant)

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10 More Docket Entries
  • 01/06/2021
  • DocketUpdated -- Request to Waive Court Fees: Filed By: Joanclair Richter (Plaintiff); Result: Granted by Operation of Law; Result Date: 01/06/2021

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  • 01/06/2021
  • DocketNotice: Waiver of Court Fees (Superior Court); Filed by: Clerk; As to: Joanclair Richter (Plaintiff)

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  • 12/28/2020
  • DocketFirst Amended Standing Order; Filed by: Clerk

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  • 12/28/2020
  • DocketNotice of Case Assignment - Limited Civil Case; Filed by: Clerk

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  • 12/28/2020
  • DocketCivil Case Cover Sheet; Filed by: Joanclair Richter (Plaintiff); As to: Progressive Casualty Insurance Company (Defendant)

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  • 12/28/2020
  • DocketRequest to Waive Court Fees; Filed by: Joanclair Richter (Plaintiff)

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  • 12/28/2020
  • DocketComplaint; Filed by: Joanclair Richter (Plaintiff); As to: Progressive Casualty Insurance Company (Defendant)

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  • 12/28/2020
  • DocketOrder to Show Cause Re: Failure to File Proof of Service scheduled for 01/02/2024 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 12/28/2020
  • DocketNon-Jury Trial scheduled for 06/27/2022 at 08:30 AM in Spring Street Courthouse at Department 25

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  • 12/28/2020
  • DocketCase assigned to Hon. James E. Blancarte in Department 25 Spring Street Courthouse

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Tentative Rulings

b'

Case Number: 20STLC10694 Hearing Date: August 27, 2021 Dept: 34

SUBJECT: Demurrer

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Moving Party: Defendant Progressive Casualty\r\nInsurance Company

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Resp. Party: Plaintiff\r\nJoanclair Richter

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The\r\nCourt OVERRULES the demurrer.

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BACKGROUND:

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On December 28, 2020, Plaintiff\r\nJoanclair Richter commenced this action against Defendant Progressive Casualty\r\nInsurance Company and on April 7, 2021, filed a first amended complaint (“FAC”)\r\nfor (1) violation of California Invasion of Privacy Act, Cal. Pen. Code § 632;\r\nand (2) violation of California Invasion of Privacy Act, Cal. Pen. Code §\r\n632.7.

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On June 8, 2021, the Court reclassified\r\nthis action to unlimited jurisdiction on its own motion. (06/08/2021.)

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On July 23, 2021, Defendant filed the\r\ninstant demurrer to the first cause of action in the FAC.

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ANALYSIS:

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I. \r\nDemurrer

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A. \r\nRequest for Judicial Notice

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The Court may take judicial notice\r\nof: (d) Records of (1) any court of this state or (2) any court of record of\r\nthe United States or of any state of the United States; and (h) facts and\r\npropositions that are not reasonably subject to dispute and are capable of\r\nimmediate and accurate determination by resort to sources of reasonably\r\nindisputable accuracy. (Evid. Code, § 452, subds. (d), (h).)

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However, taking judicial notice of\r\na document is not the same as accepting the truth of its contents or accepting\r\na particular interpretation of its meaning. (Freemont Indemnity Co. v. Freemont General Corp. (2007) 148 Cal.\r\n4th 97, 113-115.)

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Pursuant to Evidence Code section\r\n452, subdivisions (d) and (h), Defendant requests that the Court take judicial\r\nnotice of:

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· \r\nExhibit\r\n1: A letter dated September\r\n17, 2020;

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· \r\nExhibit\r\n2: Declaration of Erin\r\nParker in Support of Defendant’s Demurrer to Plaintiff’s Complaint;

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· \r\nExhibit\r\n3: Progressive Privacy\r\nPolicy / Opt-Out, California web page. This privacy policy is also available at\r\nhttps://www.progressive.com/privacy/ (last visited July 23, 2021);

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· \r\nExhibit\r\n4: United States Postal\r\nService Office of Inspector General “RISC Report on Same-Day Delivery:\r\nImplications for the U.S. Postal Service” article web page. This report is also\r\navailable at\r\nhttps://www.uspsoig.gov/sites/default/files/document-libraryfiles/2020/RISC-WP-20-002.pdf\r\n(last visited July 23, 2021).

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The Court DENIES Defendant’s\r\nrequest for judicial notice as to Exhibit 1. Defendant is attempting to have\r\nthe Court accept the truth of the contents of the September 17, 2020 letter,\r\nwhich is improper. Fremont Indemnity explains that “[a]lthough\r\nthe existence of a document may be judicially noticeable, the\r\ntruth of statements contained in the document and its proper interpretation are\r\nnot subject to judicial notice if those matters are reasonably\r\ndisputable.” (Freeman Indemnity, supra, 148 Cal.App.4th at p. 113,\r\nemphasis original.)

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The Court DENIES Defendant’s\r\nrequest for judicial notice as to Exhibit 2 as superfluous. (Cal. Rules of\r\nCourt, rule 3.1110(d).) Any party that wishes to draw the Court’s attention to\r\na matter filed in this action may simply cite directly to the document by\r\nexecution and filing date. (See Cal. Rules of Court, rule 3.1110(d).) Even if\r\nthe Court were to consider taking judicial notice of Exhibit 2, it would only\r\nto be to the existence of the declaration and the Court would not be accepting\r\nthe truth of its contents or a particular interpretation of its meaning. (See Freemont Indemnity Co., supra, 148 Cal.\r\n4th at pp. 113-115.)

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The Court GRANTS Defendant’s\r\nrequest for judicial notice as to Exhibits 3 and 4. (Evid. Code, § 452, subd.\r\n(h).)

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B. \r\nLegal Standard

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A demurrer is a pleading used to test the legal sufficiency of other\r\npleadings. It raises issues of law, not fact, regarding the form or content of\r\nthe opposing party’s pleading. It is not the function of the demurrer to\r\nchallenge the truthfulness of the complaint; and for purpose of the ruling on\r\nthe demurrer, all facts pleaded in the complaint are assumed to be true,\r\nhowever improbable they may be. (Code Civ. Proc., §§422.10, 589.)

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A demurrer can be used only to challenge defects that appear on the face\r\nof the pleading under attack; or from matters outside the pleading that are\r\njudicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311.) No other\r\nextrinsic evidence can be considered (i.e., no “speaking demurrers”). A\r\ndemurrer is brought under Code of Civil Procedure section 430.10 (grounds),\r\nsection 430.30 (as to any matter on its face or from which judicial notice may\r\nbe taken), and section 430.50(a) (can be taken to the entire complaint or any\r\ncause of action within).

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A demurrer may be brought under Code of\r\nCivil Procedure section 430.10, subdivision (e) if insufficient facts are\r\nstated to support the cause of action asserted.

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C. \r\nDiscussion

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The California Invasion of Privacy\r\nAct (“CIPA”), “is [an] anti-wiretapping and anti-eavesdropping statute that\r\nprohibits unauthorized interceptions of communications in order ‘to protect the\r\nright of privacy.’” (In re Yahoo Mail Litigation (N.D. Cal. 2014) 7\r\nF.Supp.3d 1016, 1036, quoting Penal Code, § 630.) The CIPA was enacted “in 1967\r\nin response to ‘advances in science and technology [that] have led to the\r\ndevelopment of new devices and techniques for the purpose of eavesdropping upon\r\nprivate communications[.]”’ (Ibid., quoting Penal Code, § 630.) “The\r\nrecording of telephone conversations is governed by the provisions of section\r\n632, one of the original provisions of the 1967 legislation.” (Kearney v.\r\nSalomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 117.) Penal Code section\r\n632, provides in pertinent part:

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“A person who,\r\nintentionally and without the consent of all parties to a confidential\r\ncommunication, uses an electronic amplifying or recording device to eavesdrop\r\nupon or record the confidential communication, whether the communication is\r\ncarried on among the parties in the presence of one another or by means of a\r\ntelegraph, telephone, or other device, except a radio, shall be punished by a\r\nfine not exceeding two thousand five hundred dollars ($2,500) per violation, or\r\nimprisonment in a county jail not exceeding one year, or in the state prison,\r\nor by both that fine and imprisonment. If the person has previously been\r\nconvicted of a violation of this section or Section 631, 632.5, 632.6, 632.7,\r\nor 636, the person shall be punished by a fine not exceeding ten thousand\r\ndollars ($10,000) per violation, by imprisonment in a county jail not exceeding\r\none year, or in the state prison, or by both that fine and imprisonment.” (Pen.\r\nCode, § 632, subd. (a).)

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“For the\r\npurposes of this section, ‘confidential communication’ means any communication\r\ncarried on in circumstances as may reasonably indicate that any party to the\r\ncommunication desires it to be confined to the parties thereto, but excludes a\r\ncommunication made in a public gathering or in any legislative, judicial,\r\nexecutive, or administrative proceeding open to the public, or in any other\r\ncircumstance in which the parties to the communication may reasonably expect\r\nthat the communication may be overheard or recorded.” (Pen. Code, § 632, subd.\r\n(c).)

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Section 632\r\n“simply prohibits such a party from secretly or surreptitiously recording the\r\nconversation, that is, from recording the conversation without first informing\r\nall parties to the conversation that the conversation is being recorded.” (Kearney,\r\nsupra, 39 Cal.4th at p. 118.)

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Defendant “demurs to Plaintiff’s\r\nclaim for violation of the California Invasion of Privacy Act, Cal. Penal Code\r\n§ 632 (Count I) on the grounds that the pleadings do not state facts sufficient\r\nto constitute a cause of action.” (Notice of Demurrer, p. 2:7-9, referencing\r\nCode Civ. Proc. §§ 92(a), 430.10(e).) In particular, Defendant asserts that\r\n“Plaintiff has failed to properly allege that the September 18, 2020 telephone\r\ncall at issue was recorded and has failed to allege that the telephone call\r\nconstituted a confidential communication as required under § 632.” (Id.\r\nat p. 2:9-11.)

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In opposition, Plaintiff first\r\nargues that Defendant’s demurrer is frivolous insofar as it relies on the\r\nimproper request for judicial notice that attempts to have the court assume the\r\ntruth of Ms. Parker’s declaration. (See Opp., p. 1:7-20.) Second, Plaintiff\r\nargues that she “has sufficiently alleged a violation of Cal. Penal Code § 632”\r\nbecause “she has [alleged] that she was not given notice from Defendant that\r\nher calls w[ere] being recorded, and that such gave rise to an objectively\r\nreasonable expectation of privacy that her phone call would not be recorded.” (Id.\r\nat pp. 5:25-6:1, referencing FAC, ¶¶ 1, 16-17, 19.)

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In the FAC, Plaintiff alleges that:

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· \r\n“Defendant\r\nrecorded conversations it had with Plaintiff to his cellular telephone without his\r\nprior express consent or knowledge, and these conversations involved discussion\r\nof sensitive confidential information under circumstances evincing Plaintiff’s\r\nreasonable expectation of privacy in violation of the California Invasion of\r\nPrivacy Act (‘CIPA’) Defendant recorded conversations it had with Plaintiff to\r\nhis cellular telephone without his prior express consent or knowledge, and\r\nthese conversations involved discussion of sensitive confidential information\r\nunder circumstances evincing Plaintiff’s reasonable expectation of privacy in\r\nviolation of the California Invasion of Privacy Act (‘CIPA’). Cal. Pen. Code §\r\n632.” (FAC, ¶ 1.)

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· \r\n“At\r\nvarious and multiple times prior to the filing of the instant Complaint and\r\nwithin one year thereof, Defendant recorded Plaintiff’s telephone calls to and\r\nfrom Defendant regarding a confidential business matter despite the fact that\r\nPlaintiff had asked Defendant in writing to stop calling or recording her, but\r\ncalled her anyways and recorded her voice.” (Id. at ¶ 6.)

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· \r\n“On\r\nSeptember 17, 2020 Defendant received a letter from Plaintiff stating ‘Kindly\r\ndo not call communicate in writing only via USPS mail only please. If you do\r\ncall me do not record my voice or call using automated dialing technology.’” (Id.\r\nat ¶ 7.)

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· \r\n“Despite\r\nreceiving the above, Defendant contacted Plaintiff on September 18, 2020 at\r\n9:21 a.m. p.s.t. while she was at work on her cellular telephone and recorded\r\nPlaintiff’s voice.” (Id. at ¶ 8.)

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· \r\n“Defendant\r\ncontacted Plaintiff from (858)609-2748 to her cellular telephone number ending\r\nin 0759.” (Id. at ¶ 9.)

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· \r\n“It is\r\nunclear as to why Defendant was contacting Plaintiff in the first place as\r\nPlaintiff is not currently a customer of Defendant.” (Id. at ¶ 12.)

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· \r\n“Defendant\r\nintentionally recorded all of their calls with Plaintiff through the use of an\r\nelectronic device without having first obtaining Plaintiff’s consent to be\r\nrecorded or otherwise notifying Plaintiff that the call was being recorded,\r\nthereby violating the CIPA, Cal. Pen. Code § 632.7.” (Id. at ¶ 13.)

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· \r\n“At all\r\nrelevant times, Plaintiff maintained a reasonable expectation of privacy in her\r\nconversations with Defendant, and those conversations therefore qualify as\r\n‘confidential communication’ under Cal. Pen. Code § 632(c).” (Id. at ¶\r\n19.)

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· \r\n“Defendant\r\ndid not disclose to Plaintiff that it was recorded their conversation until\r\nwell after Plaintiff had disclosed confidential communication with Defendant.”\r\n(Id. at ¶ 20.)

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At this demurrer stage, the Court\r\nfinds that Plaintiff sufficiently alleges a claim for violation of Penal Code\r\nsection 632 against Defendant. The Court finds that Plaintiff has alleged\r\nsufficient facts to demonstrate that Defendant intentionally and without the\r\nconsent of Plaintiff, electronically recorded a confidential business\r\ncommunication between the parties, and that the communication was confidential\r\nbecause Plaintiff had a reasonable expectation that her conversations with\r\nDefendant would remain private.

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The Court OVERRULES the demurrer to\r\nthe first cause of action.

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