California Civil Jury Instructions (CACI) (2017)

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

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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
• Recording Confidential Communication. Penal Code section 632(a).
Civil Action for Recording Confidential Communication. Penal Code section
637.2.
• “[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
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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
4Levy 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)
CACI No. 1809 RIGHT OF PRIVACY
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