Monzon v. Atlantic Credit & Finance CA2/8

Filed 9/1/21 Monzon v. Atlantic Credit & Finance CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

CARLOS MONZON, B302501

Plaintiff and Appellant, (Los Angeles County Super. Ct. No. 19STCV11533) v.

ATLANTIC CREDIT & FINANCE, INC.,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Los Angeles County. Rafael A. Ongkeko, Judge. Reversed. Law Offices of Todd M. Friedman, Todd M. Friedman, Adrian R. Bacon, and Thomas E. Wheeler for Plaintiff and Appellant. Baker McKenzie LLP, Edward D. Totino and Benjamin W. Turner for Defendant and Respondent. _____________________________

The trial court sustained a demurrer to appellant Carlos Monzon’s complaint based on an interpretation of Penal Code section 632.71 that has since been rejected by the California Supreme Court. Accordingly, we reverse. FACTUAL AND PROCEDURAL BACKGROUND Monzon filed a putative class action against Atlantic Credit & Finance, Inc. (Atlantic Credit) for allegedly recording telephone calls unlawfully. In his operative complaint, Monzon alleged that Atlantic Credit contacted him via his cellular telephone in an attempt to collect a debt owed by his mother. Atlantic Credit recorded the calls without informing Monzon or obtaining his consent. Monzon asserted a single cause of action for violation of section 632.7. Under section 632.7, “[e]very person who, without the consent of all parties to a communication, intercepts or receives and intentionally records . . . a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished . . . .” (§ 632.7, subd. (a).) Atlantic Credit demurred on the basis that Monzon failed to allege facts sufficient to constitute a violation of section 632.7. According to Atlantic Credit, such a violation requires the defendant both (1) intercept or receive a telephone communication without consent and (2) record the communication without consent. Monzon, however, did not allege