Forest E. Olson, Inc. v. Superior Court

Citation133 Cal.Rptr. 573,63 Cal.App.3d 188
CourtCalifornia Court of Appeals
Decision Date26 October 1976
PartiesFOREST E. OLSON, INC., a California Corporation and Donald K. Olson, Petitioners, v. SUPERIOR COURT of the State of California IN AND FOR the COUNTY OF LOS ANGELES, Respondent; Edward BERNSTEIN, Real Party in Interest. Civ. 48692.

Howard Fondler, for petitioner.

No appearance for respondent.

Michael Korn, Sherman Oaks, for real party in interest.

Evelle J. Younger, Atty. Gen., Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Norman H. Sokolow and Howard J. Schwab, Deputy Attys. Gen., amicus curiae.

ASHBY, Associate Justice.

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 1 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.

DISCUSSION

Petitioners, relying on the statement of legislative intent contained in section 630 of the Penal Code, 2 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.

As the court noted in Rogers v. Ulrich, supra, 52 Cal.App.3d 894, 125 Cal.Rptr. 306, albeit by way of dictum, section 632 goes beyond the scope of section 631 by prohibiting not only eavesdropping, but also recordation by a party to the conversation. Section 632 is the successor to former section 653j of the Penal Code which specifically forbade recordation of confidential communications by an individual '. . . not a party to the communication . . ..' Section 632 eliminated this language. Thus the persons whom the Legislature intended to exclude from the purview of subdivision (a) of section 632 are expressly enumerated in subdivision (b) of that section, as follows: '(A)n individual known by all parties to a confidential communication to be overhearing or recording such communication.' The ordinary meaning of the term 'overhearing' connotes nonparticipation by a third party in the conversation. A participant in conversation hears it, he does not 'overhear' it. We thus conclude that a participant to a telephonic communication is exempted from the prohibition against recording such communication only if the other participant to the communication knows that it is being recorded.

Our conclusion is directly supported by Penal Code section 633.5 which states one of the two exceptions 3 to sections 631 and 632. Section 633.5 provides as follows:

'Nothing in Section 631 or 632 shall be construed as prohibiting one party to a confidential communication from recording such communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to such communication of the crime of extortion, kidnapping, bribery, and felony involving violence against the person, or a violation of Section 653m, and nothing in Section 631 or 632 shall be construed as rendering inadmissible in a prosecution for extortion, kidnapping, bribery, and felony involving violence against the person, or a violation of Section 653m, or any crime in connection therewith, any evidence so obtained.'

Clearly there would be no need for this exception were it not the rule under sections 631 and 632 that a participant to a telephonic communication cannot record that communication without the knowledge of the other participant or participants.

The second cause of action in the first amended cross-complaint pleads only that petitioners recorded conversations without real party's consent. It does not say that real party did not know that the recording was being made. Subdivision (b) of section 632 speaks in the disjunctive. As...

To continue reading

Request your trial
16 cases
  • Warden v. Kahn
    • United States
    • California Court of Appeals Court of Appeals
    • December 14, 1979
    ...from recording that communication without knowledge or consent of the other party. (Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 133 Cal.Rptr. 573 (Second District); People v. Wyrick (1978) 77 Cal.App.3d 903, 909, 144 Cal.Rptr. 38 (Third District); see also Rogers v. Ul......
  • Kight v. Cashcall, Inc., D057440.
    • United States
    • California Court of Appeals Court of Appeals
    • February 29, 2012
    ...the conversation. (See Warden v. Kahn (1979) 99 Cal.App.3d 805, 812, 160 Cal.Rptr. 471;Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 191–192, 133 Cal.Rptr. 573.) CashCall nonetheless asks us to create a different rule with respect to eavesdropping by corporate employees ......
  • Kight v. Cashcall Inc., D057440.
    • United States
    • California Court of Appeals Court of Appeals
    • November 21, 2011
    ...the conversation. (See Warden v. Kahn (1979) 99 Cal.App.3d 805, 812, 160 Cal.Rptr. 471; Forest E. Olson, Inc. v. Superior Court (1976) 63 Cal.App.3d 188, 191–192, 133 Cal.Rptr. 573.) CashCall nonetheless asks us to create a different rule with respect to eavesdropping by corporate employees......
  • US v. Regan
    • United States
    • U.S. District Court — Southern District of New York
    • February 3, 1989
    ...of California.6 See e.g., Ribas v. Clark, 38 Cal.3d 355, 360-61, 212 Cal.Rptr. 143, 696 P.2d 637 (1985); Olson v. Superior Court, 63 Cal. App.3d 188, 191, 133 Cal.Rptr. 573, 574 (1976). The inescapable conclusion is that the question of whether § 632 applies to recordings made by a party to......
  • Request a trial to view additional results
1 books & journal articles
  • The factual investigation
    • United States
    • James Publishing Practical Law Books How Insurance Companies Settle Cases
    • May 1, 2021
    ...phone conversation without the plaintiff’s consent, this is an unreasonable standard by insurer. Forrest E. Olson, Inc. v. Supr. Ct. , 63 Cal. App. 3d 188, 190, 133 Cal. Rptr. 573 (1976). §593 Repetitive Documentation/Extortion The claims representative may not delay an investigation or pay......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT