In Hataishi v. First American Home Buyers Protection Corp., ___ Cal.App.4th ___ (Feb. 21, 2014), the plaintiff alleged that the defendant violated Penal Code section 632, "which prohibits the intentional recording of a 'confidential communication' without the consent of all parties to the communication." Slip op. at 2.
The Court of Appeal (Second Appellate District, Division Three) affirmed the trial court's denial of class certification, concluding that common questions did not predominate:
In this case, the trial court found the requisite community of interest lacking because each putative class member, in order to establish that an outbound call was a “confidential communication” under section 632, would be required to individually prove the objective reasonableness of his or her alleged expectation that the call would not be recorded. The court based its ruling on the standard articulated in Flanagan [v. Flanagan, 27 Cal.4th 766 (2002)], as applied by the Court of Appeal in Kight v. CashCall, Inc. (2011) 200 Cal.App.4th 1377 (CashCall), and evidence showing that First American’s automated message for every inbound call advises customers that calls may be recorded. We conclude the trial court applied the correct legal standard and that its ruling was supported by substantial evidence.
Id. at 12.