Forest E. Olson, Inc. v. Superior Court

Opinion

ASHBY, J.

This is a proceeding in mandamus brought after respondent court overruled petitioners’ demurrer to the second cause of action of a pending cross-complaint. We issued an alternative writ and set the matter for oral argument to enable us to consider the following question of first impression: Does section 632 of the Penal Code

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prohibit one participant to a telephone conversation from recording such conversation without the knowledge or consent of the second participant to the conversation? We hold that it does.

The first amended cross-complaint filed below by real party in interest pleads two causes of action against petitioners. Both allege that petitioners recorded telephone conversations between themselves and real party in interest in December 1973, without the consent of real party, and that the recordings of said conversations were introduced into evidence over real party’s objection at arbitration proceedings conducted in November 1974 before the San Fernando Valley Board of Realtors. The first cause of action asserts that petitioners’ conduct was violative of section 631 of the Penal Code. Petitioners’ demurrer to this cause of action was sustained by respondent court on the authority of

Rogers

v.

Ulrich, 52

Cal.App.3d 894 [125 Cal.Rptr. 306]. The second cause of action grounds liability on conduct assertedly violative of section 632 of the Penal Code and seeks damages pursuant to section 637.2 of the Penal Code. Petitioners’ demurrer to this cause of action was overruled thus raising the issue before us now.

[191]

Discussion

Petitioners, relying on the statement of legislative intent contained in section 630 of the Penal Code,

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contend that section 632 applies only to the recording of telephone communications by third parties and that a participant in the conversation qualifies as a person “known by all parties to a confidential communication to be overhearing” the communication and is thus expressly excluded by the definition of the word “person” contained in section 632, subdivision (b), from the prohibitions contained in section 632, subdivision (a). We find neither of these arguments persuasive.