California Civil Jury Instructions (CACI)

1809. Recording of Confidential Information (Pen. Code, §§ 632, 637.2)

[Name of plaintiff] claims that [name of defendant] violated [his/her] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] intentionally [eavesdropped on/ recorded] [name of plaintiff]’s conversation by using an electronic device;

2. That [name of plaintiff] had a reasonable expectation that the conversation was not being overheard or recorded; [and]

3. That [name of defendant] did not have the consent of all parties to the conversation to [eavesdrop on/record] it;

4. [That [name of plaintiff] was harmed; and]

5. [That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.]

New September 2003

Directions for Use

If the plaintiff is asserting more than one privacy right, give an introductory instruction stating that a person’s right to privacy can be violated in more than one way and listing the legal theories under which the plaintiff is suing.

Elements 4 and 5 are in brackets because if there is no actual harm, plaintiff can recover the statutory penalty. If plaintiff is seeking actual damages, such damages must be proven along with causation.

Sources and Authority

  • Penal Code section 632(a) provides: “Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”
  • Penal Code section 637.2 provides:

    (a) Any person who has been injured by a violation of this chapter may bring an action against the person who committed the violation for the greater of the following amounts:

    (1) Five thousand dollars ($5,000).

    (2) Three times the amount of actual damages, if any, sustained by the plaintiff.

    (b) Any person may, in accordance with Chapter 3 (commencing with Section 525) of Title 7 of Part 2 of the Code of Civil Procedure, bring an action to enjoin and restrain any violation of this chapter, and may in the same action seek damages as provided by subdivision (a).

    (c) It is not a necessary prerequisite to an action pursuant to this section that the plaintiff has suffered, or be threatened with, actual damages.

  • “[A] conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.” (Flanagan v. Flanagan (2002) 27 Cal.4th 766, 776—777 [117 Cal.Rptr.2d 574, 41 P.3d 575].)
  • “ ‘A communication must be protected if either party reasonably expects the communication to be confined to the parties.’ ” (Coulter v. Bank of America National Trust and Savings Assn. (1994) 28 Cal.App.4th 923, 929 [33 Cal.Rptr.2d 766], internal citation omitted.)
  • “While one who imparts private information risks the betrayal of his confidence by the other party, a substantial distinction has been recognized between the secondhand repetition of the contents of a conversation and its simultaneous dissemination to an unannounced second auditor, whether that auditor be a person or a mechanical device.” (Ribas v. Clark (1985) 38 Cal.3d 355, 360—361 [212 Cal.Rptr. 143, 696 P.2d 637].)
  • “We hold that an actionable violation of section 632 does not require disclosure of a confidential communication to a third party.” (Friddle v. Epstein (1993) 16 Cal.App.4th 1649, 1660 [21 Cal.Rptr.2d 85].)
  • “The right to recover [the] statutory minimum accrue[s] at the moment the privacy act [is] violated.” (Friddle, supra, 16 Cal.App.4th at p. 1661.)
  • “If the plaintiff has suffered injuries akin to those for emotional distress, ‘i.e., anxiety, embarrassment, humiliation, shame, depression, feelings of powerlessness, anguish, etc.,’ these are ‘actual’ damages which shall be trebled.” (Friddle, supra, 16 Cal.App.4th at p. 1660.)
  • “Because the right to [the statutory] award accrues at the moment of the violation, it is not barred by the judicial privilege… Section 637.2 therefore permits him to pursue his statutory remedy of a civil lawsuit for $3,000, even though the judicial privilege bars his recovery for the only actual damage he claims to have suffered.” (Ribas, supra, 38 Cal.3d at p. 365.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 660, 661, 666

4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.07[8] (Matthew Bender)

37 California Forms of Pleading and Practice, Ch. 429, Privacy, § 429.283 (Matthew Bender)

18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, § 184.25A (Matthew Bender)