Docket No. S124739
Kearney v. Salomon Smith Barney
Filed 7/13/06
IN THE SUPREME COURT OF CALIFORNIA
KELLY KEARNEY et al.,
Plaintiffs
and
Appellants,
S124739
v.
) Ct.App.
1/2
A101477
SALOMON SMITH BARNEY, INC.,
San
Francisco
County
Defendant and Respondent.
Super. Ct. No. 412197
The complaint in this case alleges that employees at the Atlanta-based
branch of defendant Salomon Smith Barney (SSB) — a large, nationwide
brokerage firm that has numerous offices and does extensive business in
California — repeatedly have recorded telephone conversations with California
clients without the clients’ knowledge or consent. These facts give rise to a classic
choice-of-law issue, because the relevant California privacy statute generally
prohibits any person from recording a telephone conversation without the consent
of all parties to the conversation, whereas the comparable Georgia statute does not
prohibit the recording of a telephone conversation when the recording is made
with the consent of one party to the conversation.
In this proceeding, several California clients of SSB filed a putative class
action against SSB seeking to obtain injunctive relief against its Atlanta-based
branch’s continuing practice of recording telephone conversations, resulting from
calls made to and from California, without knowledge or consent of the California
1
clients, and also seeking to recover damages and/or restitution based upon
recording that occurred in the past. SSB filed a demurrer to the complaint,
maintaining that no relief is warranted, because the conduct of its Atlanta-based
employees was and is permissible under Georgia law.
The trial court sustained SSB’s demurrer and dismissed the action. The
Court of Appeal affirmed the judgment rendered by the trial court, concluding that
application of Georgia law is appropriate and supports the denial of all relief
sought by plaintiffs. We granted review to consider the novel choice-of-law issue
presented by this case.
Past decisions establish that in analyzing a choice-of-law issue, California
courts apply the so-called governmental interest analysis, under which a court
carefully examines the governmental interests or purposes served by the applicable
statute or rule of law of each of the affected jurisdictions to determine whether
there is a “true conflict.” If such a conflict is found to exist, the court analyzes the
jurisdictions’ respective interests to determine which jurisdiction’s interests would
be more severely impaired if that jurisdiction’s law were not applied in the
particular context presented by the case. (See, e.g., Reich v. Purcell (1967) 67
Cal.2d 551; Hurtado v. Superior Court (1974) 11 Cal.3d 574; Bernhard v.
Harrah’s Club (1976) 16 Cal.3d 313; Offshore Rental Co. v. Continental Oil Co.
(1978) 22 Cal.3d 157 (Offshore Rental).)
For the reasons discussed at length below, we conclude that this case
presents a true conflict between California and Georgia law, and that, as a general
matter, the failure to apply California law in this context would impair California’s
interest in protecting the degree of privacy afforded to California residents by
California law more severely than the application of California law would impair
any interests of the State of Georgia.
2
As we shall explain, in light of the substantial number of businesses
operating in California that maintain out-of-state offices or telephone operators, a
resolution of this conflict permitting all such businesses to regularly and routinely
record telephone conversations made to or from California clients or consumers
without the clients’ or consumers’ knowledge or consent would significantly
impair the privacy policy guaranteed by California law, and potentially would
place local California businesses (that would continue to be subject to California’s
protective privacy law) at an unfair competitive disadvantage vis-à-vis their out-
of-state counterparts. At the same time, application of California law will not
have a significant detrimental effect on Georgia’s interests as embodied in the
applicable Georgia law, because applying California law (1) will not adversely
affect any privacy interest protected by Georgia law, (2) will affect only those
business telephone calls in Georgia that are made to or are received from
California clients, and (3) with respect to such calls, will not prevent a business
located in Georgia from implementing or maintaining a practice of recording all
such calls, but will require only that the business inform its clients or customers, at
the outset of the call, of the company’s policy of recording such calls. (As
explained below, if a business informs a client or customer at the outset of a
telephone call that the call is being recorded, the recording would not violate the
applicable California statute.)
Although we conclude that the comparative impairment analysis supports
the application of California law in this context, we further conclude that because
one of the goals of that analysis is “the ‘maximum attainment of underlying
purpose by all governmental entities’ ” (Offshore Rental, supra, 22 Cal.3d 157,
166, italics added), it is appropriate in this instance to apply California law in a
restrained manner that accommodates Georgia’s reasonable interest in protecting
persons who in the past might have undertaken actions in Georgia in reasonable
3
reliance on Georgia law from being subjected to monetary liability for such
actions. Prior to our resolution of this case it would have been reasonable for a
business entity such as SSB to be uncertain as to which state’s law — Georgia’s or
California’s — would be applicable in this context, and the denial of monetary
recovery for past conduct that might have been undertaken in reliance upon
another state’s law is unlikely to undermine significantly the California interest
embodied in the applicable invasion-of-privacy statutes. We therefore conclude
that it is Georgia’s, rather than California’s, interest that would be more severely
impaired were monetary liability to be imposed on SSB for such past conduct.
Under these circumstances, we conclude it is appropriate to decline to impose
damages upon SSB (or to require it to provide restitution) on the basis of such past
conduct.
Accordingly, we conclude that plaintiffs’ action should be permitted to go
forward with respect to the request for injunctive relief, but that the judgment
rendered by the Court of Appeal should be affirmed insofar as it upholds the
dismissal of plaintiffs’ claim for damages or restitution based on SSB’s past
conduct.
I
Because the trial court dismissed plaintiffs’ action after sustaining a
demurrer without leave to amend, for purposes of this appeal we assume the truth
of all well-pleaded factual allegations of the complaint. (See, e.g., Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.)
According to the complaint, the named plaintiffs — Kelly Kearney and
Mark Levy — are California residents who were employed in California by MFS
Communications Company (MFS) when that company was acquired in 1996 by
WorldCom (a large nationwide telecommunications firm). After the acquisition,
both plaintiffs continued to work for WorldCom in California and, during the
4
course of their employment, both were granted stock options in WorldCom that
could be exercised only through defendant SSB. The complaint alleges that in
1998, WorldCom’s Human Relations Department informed Levy that the Atlanta
branch office of SSB handled financial matters for WorldCom employees, and that
this department “directed” him to that branch office with regard to matters
involving the exercise of his stock options. Both Levy and Kearney opened
accounts with SSB’s Atlanta office and, during the course of their relationships
with SSB, each plaintiff, while in California, made and received numerous
telephone calls from individual brokers in the Atlanta office.
At some point, Kearney and Levy filed claims against SSB with the
National Association of Securities Dealers, alleging that SSB and its individual
brokers had engaged in “malfeasance, fraud, and breach of fiduciary duties” in
providing advice to them. Apparently in the course of the litigation of those
claims, Kearney and Levy learned that numerous telephone calls that were made
and received by SSB’s Atlanta office to and from California clients, while the
clients were in California, were tape-recorded by SSB employees without the
clients’ knowledge or consent.
Kearney and Levy then filed the present action, seeking relief on their own
behalf and on behalf of all other clients of SSB who resided in California and
whose accounts were serviced by the Atlanta branch of SSB. The complaint
alleged that during the course of their relationship with SSB, the named plaintiffs
and other members of the class took part in numerous telephone conversations
concerning their personal financial affairs, had an expectation of privacy in those
communications, were unaware that their conversations were being recorded, and
did not give consent to the recording of such conversations. The complaint further
alleged that SSB intentionally recorded such conversations without disclosing that
it was doing so.
5
The complaint maintained that the conduct of SSB alleged in the complaint
provided a basis for a civil cause of action under section 637.2 of the Penal
Code — a provision of California’s invasion of privacy statutory scheme — as
well as under section 17200 of the Business and Professions Code, a provision of
California’s unfair competition law that provides a civil remedy against (among
other things) unlawful business practices. The complaint sought (1) injunctive
relief to restrain SSB in the future “from using its practice/policy of illegally
recording telephone conversations with its clients,” and (2) damages and
restitution based upon SSB’s past conduct.
SSB filed a demurrer to the complaint, and after briefing and a hearing on
the legal issues, the trial court sustained the demurrer without leave to amend,
concluding that “under both Georgia and federal law recordings may lawfully be
made in Georgia with one party’s consent. As such, defendant’s conduct cannot
be viewed as unlawful or unfair or deceptive under California Business &
Professions § 17200. Further, any attempt to apply Penal Code § 632 to
recordings made in Georgia would be preempted by federal law and violate the
Commerce Clause.”1
On appeal, the Court of Appeal — although noting that the parties had
failed to identify or brief the correct legal issue (that is, the choice-of-law issue) in
either the trial court or, initially, in the Court of Appeal — nonetheless affirmed
the judgment rendered by the trial court, concluding “that, on the specific facts of
this case, Georgia has the greater interest in having its law applied.” The Court of
1
As explained below, Penal Code section 637.5 authorizes a civil cause of
action for any violation of the applicable invasion of privacy statutory scheme, and
Penal Code section 632 is the specific provision of that scheme that governs the
unlawful recording of telephone conversations. (See, post, pp. 24-28.)
6
Appeal was of the view that “[a]ny other result would bless a legalistic ‘gotcha’:
the office of a financial services organization in a state which, like the majority of
states, has a statute which permits it to record routine telephone calls to and from
its clients without their specific consent is left at risk that a client in one of the
minority of states that requires both parties [to] consent will sue it in the client’s
home state and attempt to apply that state’s law.”
As noted above, we granted plaintiffs’ petition for review to address the
novel choice-of-law-issue presented by this case.2
II
Before addressing the choice-of-law issue, we believe it is useful to explain
briefly why the numerous legal theories and authorities upon which SSB placed its
initial reliance — and which SSB continues to advance in its briefing in this
court — do not support the trial court’s ruling sustaining SSB’s demurrer without
leave to amend.
To begin with, although SSB cites and relies upon a number of cases
dealing with personal jurisdiction, it is clear there can be no constitutional
objection to California’s exercising personal jurisdiction over SSB by adjudicating
this civil action in a California court. The complaint alleges that SSB
“systematically and continually does business” in California, and SSB does not
deny that it maintains numerous offices and does extensive business in this state.
2
While this matter was pending before this court, plaintiff Kearney
requested to be dismissed from the action in light of a settlement agreement she
had entered into with SSB. We granted the request, noting that the dismissal
would not affect the viability of the action, because plaintiff Levy remains a
named plaintiff and a putative class representative.
We note also that in 2003, SSB formally changed its name to Citigroup
Global Markets, Inc., but for purposes of this case we shall continue to refer to
defendant as SSB.
7
Furthermore, this action — involving SSB’s alleged recording of telephone
conversations relating to business transactions — plainly arises directly out of
SSB’s business activity in this state. Under these circumstances, SSB is clearly
subject to the personal jurisdiction of California courts under both the “general”
and “specific” categories of personal jurisdiction. (See, e.g., Vons Companies,
Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 445-446.)
Second, contrary to SSB’s strenuous argument, the application of
California law in the setting of this case clearly would not exceed the
constitutional limits imposed by the federal due process clause on a state’s
legislative jurisdiction, by seeking to impose California law on activities
conducted outside of California as to which California has no legitimate or
sufficient state interest. The present legal proceedings are based upon defendant
business entity’s alleged policy and practice of recording telephone calls of
California clients, while the clients are in California, without the clients’
knowledge or consent. California clearly has an interest ― in protecting the
privacy of telephone conversations of California residents while they are in
California ― sufficient to permit this state, as a constitutional matter, to exercise
legislative jurisdiction over such activity. (See, for example, Yu v. Signet
Bank/Virginia (1999) 69 Cal.App.4th 1377, 1391 [California may regulate
business’s out-of-state “distant forum abuse” against California consumers];
People v. Fairfax Family Fund, Inc. (1964) 235 Cal.App.2d 881, 883-885
[upholding application of California Small Loan Law to out-of-state company that
solicited business in California by mail].) This is not a case in which California
would be applying its law in order to alter a defendant’s conduct in another state
vis-à-vis another state’s residents. (Cf. BMW of North America, Inc. v. Gore
(1996) 517 U.S. 559, 572-573 [“[B]y attempting to alter BMW’s nationwide
policy, Alabama would be infringing on the policy choices of other States. To
8
avoid such encroachment, the economic penalties that a State such as Alabama
inflicts on those who transgress its laws . . . must be supported by the State’s
interest in protecting its own consumers or its own economy”].) Instead,
application of California law would be limited to the defendant’s surreptitious or
undisclosed recording of words spoken over the telephone by California residents
while they are in California. This is a traditional setting in which a state may act
to protect the interests of its own residents while in their home state. (See, e.g.,
Watson v. Employers Liability Corp. (1954) 348 U.S. 66, 72 [in upholding
Louisiana’s application of a Louisiana statute permitting an injured person to bring
a “direct action” against an insurer doing business in Louisiana even though the
insurance policy in question was issued in Massachusetts and contained a clause
prohibiting direct actions, the United States Supreme Court explained: “As a
consequence of the modern practice of conducting widespread business activities
throughout the entire United States, this Court has in a series of cases held that
more states than one may seize hold of local activities which are part of multistate
transactions and may regulate to protect interests of its own people, even though
other phases of the same transactions might justify regulatory legislation in other
states”].)
As is recognized by the cited cases — and numerous others — the federal
system contemplates that individual states may adopt distinct policies to protect
their own residents and generally may apply those policies to businesses that
choose to conduct business within that state. (See, e.g., Allstate Ins. Co. v. Hague
(1981) 449 U.S. 302, 317-318 (plur. opn. by Brennan, J.); id. at pp. 329-331 (conc.
opn. by Stevens, J.); id. at pp. 337-338 (dis. opn. by Powell, J.); Clay v. Sun Ins.
Office, Ltd. (1964) 377 U.S. 179, 181-182.) It follows from this basic
characteristic of our federal system that, at least as a general matter, a company
that conducts business in numerous states ordinarily is required to make itself
9
aware of and comply with the law of a state in which it chooses to do business. As
is demonstrated by the above cases, a state generally does not exceed its
constitutional authority when it applies its law in such a setting, even if the law
may implicate some action or failure to act that occurs outside the state.
Third, contrary to SSB’s contention and the conclusion of the trial court,
past decisions establish that although SSB’s alleged conduct would not violate the
provisions of the applicable federal law relating to the recording of telephone
conversations (18 U.S.C. § 2511(2)(d)), federal law does not preempt the
application of California’s more protective privacy provisions.
In People v. Conklin (1974) 12 Cal.3d 259, 270-273, this court specifically
addressed the question whether the provisions of title III of the federal Omnibus
Crime Control and Safe Streets Act of 1968 (18 U.S.C. §§ 2510-2520, hereafter
title III) — relating to the wiretapping or recording of telephone conversations —
preempted the application of the more stringent provisions embodied in
California’s invasion of privacy law. Reviewing the legislative history of title III,
the court in Conklin determined that “Congress intended that the states be allowed
to enact more restrictive laws designed to protect the right of privacy” (12 Cal.3d
at p. 271), pointing out that a legislative committee report prepared in conjunction
with the consideration of title III specifically observed that “ ‘[t]he proposed
provision envisions that States would be free to adopt more restrictive legislation,
or no legislation, but not less restrictive legislation.’ ” (12 Cal.3d at p. 272.)
Accordingly, the court in Conklin rejected the preemption claim.
Although an amicus curiae brief in the present case urges that the decision
in Conklin be reconsidered (see amicus curiae brief of U.S. Chamber of
Commerce, pp. 20-23), the brief fails to point to any developments in the almost
four decades since Conklin that would warrant such reconsideration, and omits
reference to the numerous sister-state and federal decisions that have reached the
10
same conclusion as Conklin with regard to the preemption issue. (See, e.g.,
Roberts v. Americable Intern. Inc. (E.D.Cal. 1995) 883 F.Supp. 499, 503, fn. 6;
United States v. Curreri (D.Md. 1974) 388 F.Supp. 607, 613; Bishop v. State
(Ga.Ct.App. 1999) 526 S.E.2d 917, 920; People v. Pascarella (Ill.App.Ct. 1981)
415 N.E.2d 1285, 1287; see also Warden v. Kahn (1979) 99 Cal.App.3d 805, 810.)
Indeed, the Georgia privacy statute that we shall examine below is itself in some
respects more restrictive than the applicable federal provision, and Georgia — like
this court in Conklin — specifically has rejected the argument that the federal
statute precludes a state from adopting a policy more protective of privacy than the
policy established by federal law. (Bishop v. State, supra, 526 S.E.2d 917, 920-
921.) Accordingly, there is no basis for concluding that application of California
law is preempted by federal law.3
3
In conjunction with its federal preemption argument, SSB contends that in
some instances federal law requires the kind of recording of telephone
conversations that allegedly occurred at SSB’s Atlanta branch, citing rule 3010 of
the National Association of Securities Dealers (NASD). That rule requires firms
that are members of the NASD and that employ a significant number of
representatives who previously worked at firms that have been disciplined by the
NASD to tape record all telephone conversations between its representatives and
existing and potential customers. Although SSB acknowledges that it is not
subject to rule 3010, it argues that this rule demonstrates that, at least in some
circumstances, the California statute is incompatible with federal law.
SSB, however, fails to point to anything in NASD rule 3010 that would
preclude a firm that is subject to this rule from informing an existing or potential
client, at the outset of a conversation, that the telephone call is being recorded for
business purposes. As explained below, a business can comply with the applicable
California statute by providing such information at the outset of a telephone
conversation so that the client or customer will not have a reasonable expectation
that the conversation is not being recorded. Indeed, plaintiffs point to a notice that
NASD issued in 1998 in relation to its rule 3010, stating that “[t]he best practice in
each case would be for member firms to notify their registered persons and
customers that their telephone calls are being tape recorded.” (NASD Notice to
Members, 98-52, at p. 394.)
11
Fourth and finally, application of California law in this setting would not, at
least on its face, constitute a violation of the federal commerce clause. (U.S.
Const., art. I, § 8, cl. 3.) In advancing the contrary claim, SSB relies heavily on
language in the United States Supreme Court’s decision in Healy v. The Beer
Institute (1989) 491 U.S. 324, 336, to the effect that “the ‘Commerce Clause . . .
precludes the application of a state statute to commerce that takes place wholly
outside the State’s borders, whether or not the commerce has effects within the
State.’ ” The quotation from Healy is inapplicable not only because the
occurrences here at issue quite clearly did not take place “wholly outside
[California’s] borders,” but also because SSB’s argument ignores the remainder of
the quoted sentence from Healy, which goes on to state: “and, specifically, a State
may not adopt legislation that has the practical effect of establishing ‘a scale of
prices for use in other states.’ ” (491 U.S. at p. 336.) As the entirety of the quoted
sentence suggests, the decision in Healy addressed the validity of a state statute
that purported to regulate a business entity’s pricing practices in the forum state
with reference to the prices charged by the entity in other states, and found the
statute violative of the commerce clause because of the inevitable effect that the
statute would have on the prices charged by the entity in its sales to residents in
other states.
On its face, application of the California law here at issue would affect only
a business’s undisclosed recording of telephone conversations with clients or
consumers in California and would not compel any action or conduct of the
business with regard to conversations with non-California clients or consumers.
(Compare Edgar v. MITE Corp. (1982) 457 U.S. 624, 644 [in invalidating an
Illinois statute that effectively authorized Illinois to determine whether a
nationwide tender offer could proceed anywhere, the court observed that “[w]hile
protecting local investors is plainly a legitimate state objective, the State has no
12
legitimate interest in protecting nonresident shareholders”].) Although SSB may
attempt to demonstrate, at a later stage in the litigation, that application of the
California statute would pose an undue and excessive burden on interstate
commerce by establishing that it would be impossible or infeasible for SSB to
comply with the California statute without altering its conduct with regard to its
non-California clients and that the burden that would be imposed upon it “is
clearly excessive in relation to the putative local benefits” (Pike v. Bruce Church,
Inc. (1970) 397 U.S. 137, 142), SSB clearly cannot prevail on such a theory at the
demurrer stage of the proceeding.
Accordingly, we believe that the only substantial issue presented by the
case is the choice-of-law issue. We turn to that issue.
III
Beginning with Chief Justice Traynor’s seminal decision for this court in
Reich v. Purcell, supra, 67 Cal.2d 551 (hereafter Reich), California has applied the
so-called governmental interest analysis in resolving choice-of-law issues. In brief
outline, the governmental interest approach generally involves three steps. First,
the court determines whether the relevant law of each of the potentially affected
jurisdictions with regard to the particular issue in question is the same or different.
Second, if there is a difference, the court examines each jurisdiction’s interest in
the application of its own law under the circumstances of the particular case to
determine whether a true conflict exists. Third, if the court finds that there is a
true conflict, it carefully evaluates and compares the nature and strength of the
interest of each jurisdiction in the application of its own law “to determine which
state’s interest would be more impaired if its policy were subordinated to the
policy of the other state” (Bernhard v. Harrah’s Club, supra, 16 Cal.3d 313, 320),
and then ultimately applies “the law of the state whose interest would be the more
impaired if its law were not applied.” (Ibid.)
13
A review of several of the leading decisions of this court applying the
governmental interest analysis illustrates how this approach actually operates in
practice.
A
In Reich, supra, 67 Cal.2d 551, for example, the plaintiffs filed a wrongful
death action in California as a result of an automobile accident that occurred in
Missouri. One of the cars involved in the accident was owned and operated by the
defendant (Purcell), who was a California resident. The other car was owned and
operated by Mrs. Reich, an Ohio resident, who was traveling with her two
children. Mrs. Reich and one of her children were killed in the accident; the other
child was injured. After the accident, Mr. Reich and his surviving child moved to
California and then brought the wrongful death action against Purcell. The issue
in the case related to the damages that the plaintiffs could recover in their
wrongful death action.
In this setting there were three potentially affected jurisdictions —
Missouri, Ohio, and California. Missouri law limited the recovery of damages in
wrongful death actions to $25,000; by contrast, neither Ohio law nor California
law placed a dollar limit on recovery in such actions. The trial court in that case
held that Missouri law applied because the accident had occurred in that state, and
limited the plaintiffs’ recovery to $25,000. On appeal, however, this court rejected
the prior “law of the place of the wrong” rule as the appropriate choice-of-law
analysis, and instead adopted in its place the governmental interest analysis.
(Reich, supra, 67 Cal.2d at pp. 553, 554, 555.)
In applying that analysis to the facts before it, the court in Reich, supra, 67
Cal.2d 551, initially concluded that California had no interest in applying its law,
because plaintiffs had not been California residents at the time of the accident and
because inasmuch as California law did not limit damages it had no particular
14
interest in applying its law to defendant. In considering the respective interests of
Missouri and Ohio, the court observed that although Missouri’s limitation on
damages in wrongful death actions expressed a concern for avoiding the
imposition of excessive financial burdens on defendants, that concern was
primarily a local concern. The court explained that it failed “to perceive any
substantial interest Missouri might have in extending the benefits of its limitation
of damages to travelers from states having no similar limitation. Defendant’s
liability should not be limited when no party to the action is from a state limiting
liability and when defendant, therefore, would have secured insurance, if any,
without any such limit in mind. . . . Under these circumstances giving effect to
Ohio’s interest in affording full recovery to injured parties does not conflict with
any substantial interest of Missouri.” (67 Cal.2d at p. 556.) Because the court
found that Ohio had a substantial interest in having its law applied while Missouri
did not, the case did not present a true conflict, and the court had little trouble
determining that Ohio law should apply in that case with regard to the amount of
damages recoverable in a wrongful death action. (Id. at pp. 556-557.)
B
Hurtado v. Superior Court, supra, 11 Cal.3d 574 (hereafter Hurtado),
presented an issue and a fact pattern comparable to those presented in Reich,
supra, 67 Cal.2d 551, and afforded our court an opportunity to provide further
guidance on the appropriate mode of analysis under the governmental interest
approach that had been adopted in Reich, supra, 67 Cal.2d 551. In Hurtado, as in
Reich, the specific question at issue was the amount of damages recoverable in a
wrongful death action that had been filed in a California court. In Hurtado, the
plaintiffs in the wrongful death action — as well as the decedent — were residents
of Mexico at the time of the accident, but the accident that had resulted in the
decedent’s death occurred in California, each of the defendant drivers was a
15
California driver, and all the vehicles were registered in California. The two
potentially affected jurisdictions were Mexico and California, and the question
before the court was which jurisdiction’s law should determine the amount of
damages recoverable by the plaintiffs.
In analyzing the issue, the court first examined the law of each of the
jurisdictions and found that whereas Mexico limited the amount survivors could
recover in a wrongful death action (to 24,334 pesos), California placed no dollar
limit on the damages that could be recovered in such an action. In continuing its
analysis under the governmental interest approach, the court in Hurtado observed
that “[a]lthough the two potentially concerned states have different laws, there is
still no problem in choosing the applicable rule of law where only one of the states
has an interest in having its law applied.” (Hurtado, supra, 11 Cal.3d at p. 580.)
The court then found that in the setting of that case, Mexico did not have an
interest in having its law applied, explaining that “[t]he interest of a state in a tort
rule limiting damages for wrongful death is to protect defendants from excessive
financial burdens or exaggerated claims” (id. at pp. 580-581) and that “this interest
‘to avoid the imposition of excessive financial burdens on [defendants] . . . is . . .
primarily local[,]’ [citations]; that is, a state by enacting a limitation on damages is
seeking to protect its residents from the imposition of these excessive financial
burdens. Such a policy ‘does not reflect a preference that widows and orphans
should be denied full recovery.’ [Citation.] Since it is the plaintiffs and not the
defendants who are the Mexican residents in this case, Mexico has no interest in
applying its limitation of damages — Mexico has no defendant residents to protect
and has no interest in denying full recovery to its residents injured by non-
Mexican defendants.” (Id. at p. 581.) Because Mexico had no interest in applying
its limitation on wrongful death damages, Hurtado, like Reich, did not present a
16
true conflict, and the court consequently concluded that California law should
apply. (Id. at pp. 581-582.)
Although that case was readily resolved because it presented a false
conflict, the court in Hurtado, supra, 11 Cal.3d 574, went on to elaborate on a
number of distinct issues that must be carefully considered in resolving choice-of-
law questions in wrongful death actions, issues that had not always been carefully
separated and analyzed by the lower courts in other cases decided in the wake of
Reich. After a fairly extended discussion (11 Cal.3d at pp. 582-584), the court in
Hurtado summarized its conclusions by emphasizing that “[i]t is important . . . to
recognize the three distinct aspects of a cause of action for wrongful death:
(1) compensation for survivors, (2) deterrence of conduct and (3) limitation, or
lack thereof, upon the damages recoverable. Reich v. Purcell recognizes that all
three aspects are primarily local in character. The first aspect, insofar as plaintiffs
are concerned, reflects the state’s interest in providing for compensation and in
determining the distribution of the proceeds, said interest extending only to local
decedents and local beneficiaries . . . ; the second, insofar as defendants are
concerned, reflects the state’s interest in deterring conduct, said interest extending
to all persons present within its borders; the third, insofar as defendants are
concerned, reflects the state’s interest in protecting resident defendants from
excessive financial burdens. In making a choice of law, these three aspects of
wrongful death must be carefully separated. The key step in this process is
delineating the issue to be decided.” (Hurtado, supra, 11 Cal.3d at p. 584.) This
discussion in Hurtado teaches the importance, in applying the governmental
interest analysis, of carefully examining what might at first blush appear to be a
single subject or rule of law in order to identify the distinct state interests that may
underlie separate aspects of the issue in question.
17
C
Unlike Reich, supra, 67 Cal.2d 551, and Hurtado, supra, 11 Cal.3d 574 —
cases that were found, upon analysis, to present a false conflict — the case of
Bernhard v. Harrah’s Club, supra, 16 Cal.3d 313 (hereafter Bernhard) for the first
time presented this court with the task of resolving a true conflict pursuant to the
governmental interest analysis. In Bernhard, the plaintiff, a California resident,
was injured while in California by a drunk driver who allegedly had been served
drinks, while intoxicated, at a tavern owned by the defendant (Harrah’s Club) that
was located in Nevada. The plaintiff sued the defendant in California, contending
that the defendant should be held liable because the plaintiff’s injury was
proximately caused by the defendant’s negligence in serving alcohol to an
intoxicated patron. When Bernhard was decided, California law authorized a
person who was injured by an intoxicated driver to recover damages from a
negligent tavern owner under such circumstances (see Vesely v. Sager (1971) 5
Cal.3d 153), but under Nevada law — although it was a crime to sell alcohol to an
intoxicated person — the courts specifically had ruled that a tavern owner could
not be held civilly liable in tort for the injured person’s damages. (Hamm v.
Carson City Nuggett, Inc. (Nev. 1969) 450 P.2d 358.) The question in Bernhard
was whether California or Nevada law should be applied in determining whether
the defendant tavern owner should be held liable.
In analyzing the issue, the court in Bernhard first found that the case
presented a true conflict. Nevada had an interest in having its decisional rule
applied in order to protect its resident tavern owners — like the defendant in that
case — from being subjected to a form of civil liability that Nevada had declined
to impose. At the same time, California also had an interest in applying its
contrary rule imposing liability in such circumstances, inasmuch as the rule was
intended to protect members of the general public from injuries to persons and
18
property resulting from the excessive use of intoxicating liquor. California had a
special interest in applying its law to a California resident — like the plaintiff in
that case — who was injured by a drunk driver within California. Under these
circumstances, the court in Bernhard recognized that it was required to determine
“the appropriate rule of decision in a controversy where each of the states involved
has a legitimate but conflicting interest in applying its own law in respect to the
civil liability of tavern keepers.” (Bernhard, supra, 16 Cal.3d at p. 319.)
The court in Bernhard, supra, 16 Cal.3d 313, went on to discuss the basic
process and standard by which true conflicts should be analyzed and resolved
under California’s governmental interest doctrine. The court explained that
“[o]nce [a] preliminary analysis has identified a true conflict of the governmental
interests involved as applied to the parties under the particular circumstances of
the case, the ‘comparative impairment’ approach to the resolution of such conflict
seeks to determine which state’s interest would be more impaired if its policy were
subordinated to the policy of the other state. This analysis proceeds on the
principle that true conflicts should be resolved by applying the law of the state
whose interest would be more impaired if its law were not applied. Exponents of
this process of analysis emphasize that it is very different from a weighing
process. The court does not ‘ “weigh” the conflicting governmental interests in
the sense of determining which conflicting law manifested the “better” or the
“worthier” social policy on the specific issue. An attempted balancing of
conflicting state policies in that sense . . . is difficult to justify in the context of a
federal system in which, within constitutional limits, states are empowered to
mold their policies as they wish. . . . [The process] can accurately be described as
. . . accommodation of conflicting state policies, as a problem of allocating
domains of law-making power in multi-state contexts — limitations on the reach
of state policies — as distinguished from evaluating the wisdom of those
19
policies. . . . [E]mphasis is placed on the appropriate scope of conflicting state
policies rather than on the “quality” of those policies . . . .’ ” (16 Cal.3d at
pp. 320-321.)
In applying the comparative impairment approach to the circumstances of
that case, the court in Bernhard initially observed that “[a]t its broadest limits
[California’s] policy would afford protection to all persons injured in California by
intoxicated persons who have been sold or furnished alcoholic beverages while
intoxicated regardless of where such beverages were sold or furnished. Such a
broad rule would naturally embrace situations where the intoxicated actor had
been provided with liquor by out-of state tavern keepers.” (Bernhard, supra, 16
Cal.3d at p. 322.) The court in Bernhard then continued: “We need not, and
accordingly do not here determine the outer limits to which California’s policy
should be extended, for it appears clear to us that it must encompass defendant,
who as alleged in the complaint, ‘[advertises] for and otherwise [solicits] in
California the business of California residents at defendant HARRAH’S CLUB
Nevada drinking and gambling establishments, knowing and expecting said
California residents, in response to said advertising and solicitation, to use the
public highways of the State of California in going and coming from defendant
HARRAH’S CLUB Nevada drinking and gambling establishments.’ Defendant by
the course of its chosen commercial practice has put itself at the heart of
California’s regulatory interest, namely to prevent tavern keepers from selling
alcoholic beverages to obviously intoxicated persons who are likely to act in
California in the intoxicated state. It seems clear that California cannot reasonably
effectuate its policy if it does not extend its regulation to include out-of-state
tavern keepers such as defendant who regularly and purposely sell intoxicating
beverages to California residents in places and under conditions in which it is
reasonably certain these residents will return to California and act therein while
20
still in an intoxicated state. California’s interest would be very significantly
impaired if its policy were not applied to defendant.” (16 Cal.3d at pp. 322-323.)
Although the court in Bernhard recognized that application of California
law would result in “an increased economic exposure” for a tavern keeper such as
defendant (Bernhard, supra, 16 Cal.3d at p. 323), it noted that “for businesses
which actively solicit extensive California patronage, [such increased exposure] is
a foreseeable and coverable business expense.” (Ibid.) Finally, the court in
Bernhard declared that “Nevada’s interest in protecting its tavern keepers from
civil liability of a boundless and unrestricted nature will not be significantly
impaired when as in the instant case liability is imposed only on those tavern
keepers who actively solicit California business.” (Ibid.) Accordingly, having
found that “California has an important and abiding interest in applying its rule of
decision to the case at bench [and] that the policy of this state would be more
significantly impaired if such rule were not applied” (ibid.), the court in Bernhard
concluded that California law should be applied.
D
The final precedent that we shall discuss is Offshore Rental, supra, 22
Cal.3d 157, a case that, like Bernhard, involved a true conflict.
In Offshore Rental, the plaintiff, a California corporation, brought a
negligence action against the defendant out-of-state corporation, seeking to
recover damages that the plaintiff corporation allegedly sustained as a result of an
injury that an officer of the corporation suffered while the officer was on the
defendant’s premises in Louisiana. Prior to the commencement of the action, the
defendant corporation already had compensated the injured officer for the
damages that he had personally sustained, but, in the proceeding at issue in
Offshore Rental, the plaintiff corporation sought to recover for the additional
21
damages to its business interests that allegedly were caused by the injury to its
officer.
In analyzing the choice-of-law issue, the court in Offshore Rental, supra, 22
Cal.3d 157, initially reviewed the respective laws of the two potentially affected
jurisdictions — Louisiana and California. The court first noted that a Louisiana
court recently had interpreted the relevant Louisiana statute — which provided
that “[t]he master may bring an action against any man for beating or maiming his
servant” (La. Civ. Code Ann., art. 174) — as not supporting a cause of action by a
corporate plaintiff for the loss of services of its officer. (See Bonfanti Industries v.
Teke, Inc. (La.Ct.App. 1969) 224 So.2d 15.) The court in Offshore Rental then
explained that, by contrast, the few expressions in California cases (“although
chiefly dicta” (Offshore Rental, supra, 22 Cal.3d at p. 162)) supported the
plaintiff’s assertion that California Civil Code section 49 — which provides in part
that “[t]he rights of personal relations forbid: [¶] . . . [¶] (c) Any injury to a
servant which affects his ability to serve his master” — authorizes an employer to
maintain a cause of action against a third party for a loss sustained by the
employer as a result of an injury to a key employee that was caused by the
negligence of the third party. (See, e.g., Darmour Prod. Corp. v. H.M. Baruch
Corp. (1933) 135 Cal.App.351; Fifield Manor v. Finston (1960) 54 Cal.2d 632,
636.)
After determining that the applicable law of the two affected states
apparently conflicted, the court in Offshore Rental examined the governmental
interests involved in each state’s law to determine whether, under the facts at
issue, each state had an interest in having its law applied. The court found that, in
view of the policies underlying the law of each state, both Louisiana and
California had an interest in having its law applied in the case before it. Because
Louisiana’s law was aimed at protecting “negligent resident tortfeasors acting
22
within Louisiana’s borders from the financial hardships caused by the assessment
of excessive legal liability or exaggerated claims resulting from the loss of
services of a key employee” (Offshore Rental, supra, 22 Cal.3d at p. 164), and
because the defendant in the case was “a Louisiana ‘resident’ whose negligence on
its own premises has caused the injury in question” (ibid.), Louisiana clearly had
an interest in having its law applied. And because California’s law reflected an
interest “in protecting California employers from economic harm because of
negligent injury to a key employee inflicted by a third party” (ibid.) — an interest
that “extends beyond such an injury inflicted within California, since California’s
economy and tax revenues are affected regardless of the situs of physical injury”
(ibid.) — and because the plaintiff in that case was a California corporation that
allegedly suffered loss as the result of the negligent injury of its key employee,
California also had an interest in having its law applied. As a consequence, the
court in Offshore Rental determined that the case involved a true conflict.
In thereafter undertaking the comparative impairment analysis set forth in
Bernhard, supra, 16 Cal.3d 313, 320, and quoted above, the court in Offshore
Rental, supra, 22 Cal.3d 157, explained that although the Louisiana rule of law
had been set forth in a quite recent Louisiana decision that was directly in point,
California, by contrast, “has . . . exhibited little concern in applying section 49 to
the employer-employee relationship: despite the provisions of the antique statute,
no California court has heretofore squarely held that California law provides an
action for harm to business employees, and no California court has recently
considered the issue at all. If . . . section 49 does provide an action for harm to
key corporate employees, . . . the section constitutes a law ‘archaic and isolated in
the context of the laws of the federal union.’ ” (Offshore Rental, supra, 22 Cal.3d
at p. 168.) Under these circumstances, the court stated that “[w]e do not believe
that California’s interests in the application of its law to the present case are so
23
compelling as to prevent an accommodation to the stronger, more current interest
of Louisiana. We conclude therefore that Louisiana’s interests would be the more
impaired if its law were not applied, and consequently that Louisiana law governs
the present case.” (Id. at p. 169.)
IV
Keeping in mind the choice-of-law principles and methodology set forth in
these prior cases, we turn to the choice-of-law issue presented by the facts of this
case. Here, the two potentially affected jurisdictions are California and Georgia,
and the initial question is whether a conflict exists between the applicable law of
each jurisdiction. In resolving that initial question, we must determine not only
whether California law and Georgia law differ from one another, but also whether
each state’s law was intended to apply to a telephone conversation that occurs in
part in California and in part in Georgia.
A
We begin with the California statutory scheme.
In 1967, the California Legislature enacted a broad, protective invasion-of-
privacy statute in response to what it viewed as a serious and increasing threat to
the confidentiality of private communications resulting from then recent advances
in science and technology that had led to the development of new devices and
techniques for eavesdropping upon and recording such private communications.
(Stats. 1967, ch. 1509, § 1, pp. 3584-3588, enacting Pen. Code, §§ 630-637.2.)4
4
The initial section of the 1967 legislation, codified as Penal Code section
630, reads in relevant part: “The Legislature hereby declares that advances in
science and technology have led to the development of new devices and
techniques for the purpose of eavesdropping upon private communications and
that the invasion of privacy resulting from the continual and increasing use of such
devices and techniques has created a serious threat to the free exercise of personal
liberties and cannot be tolerated in a free and civilized society.
(footnote continued on next page)
24
One of the provisions of the 1967 legislation — section 637.2 — explicitly created
a new, statutory private right of action, authorizing any person who has been
injured by any violation of the invasion-of-privacy legislation to bring a civil
action to recover damages and to obtain injunctive relief in response to such
violation.5 Although other provisions of the statutory scheme authorize
prosecutors to seek penal sanctions for violations of the statute, the imposition of
criminal punishment on the basis of conduct that occurs in part outside of
California presents potential constitutional and statutory questions different from
those involved in the maintenance of a civil cause of action for damages or
injunctive relief. (See, for example, Heath v. Alabama (1985) 474 U.S. 82, 87-93;
People v. Betts (2005) 34 Cal.4th 1039-1047; People v. Morante (1999) 20 Cal.4th
403, 427-430.) In the present case we have no occasion to consider the
circumstances, if any, under which penal sanctions could or should appropriately
be applied in such a factual context. The author of the 1967 legislation described
(footnote continued from previous page)
“The Legislature by this chapter intends to protect the right of privacy of
the people of this state.”
Unless specified, all further statutory references are to the Penal Code.
5 Section
637.2
currently provides in full:
“(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.”
25
the statutory provision establishing a private right of action as “perhaps the most
effective enforcement mechanism available” for the privacy rights afforded by the
enactment (Statement by Assem. Speaker Unruh Before Sen. Comm. on Judiciary
re Assem. Bill No. 860 (1967-1968 Reg. Sess.) June 8, 1967, p. 4) [describing bill
that became 1967 statute]), and our concern here is solely whether plaintiffs may
maintain a civil cause of action for damages and/or injunctive relief under
section 637.2 under the factual circumstances alleged in the complaint.6
The recording of telephone conversations is governed by the provisions of
section 632, one of the original provisions of the 1967 legislation. Under
subdivision (a) of section 632, “[e]very person who, intentionally and without the
consent of all parties to a confidential communication, by means of any electronic
amplifying or recording device, . . . records the confidential communication,
whether the communication is carried on among the parties in the presence of one
6
Although the invasion of privacy statutory scheme appears in the Penal
Code and the Legislature chose to impose penal as well as civil sanctions for
conduct that is prohibited by the legislation, in determining the scope of the civil
cause of action embodied in section 637.2, we properly must consider the
substance, rather than the form, of the statutory scheme. The reach of section
637.2 would be the same if the Legislature had adopted three separate statutes —
one declaring that the prohibited conduct was unlawful, a second specifying the
civil sanctions that could be imposed upon such unlawful conduct, and a third
specifying the penal sanctions that could be imposed for such conduct ― and had
placed the first two statutes in the Civil Code and the third in the Penal Code. As
noted above, the issue presented here is whether plaintiffs may maintain a civil
cause of action for damages and/or injunctive relief under 637.2 on the basis of the
facts alleged in the complaint, and in resolving that issue there is no need to
determine whether penal sanctions properly could or should be imposed under
these circumstances. In accordance with traditional notions of judicial restraint,
we believe it is appropriate and prudent to wait until we are faced with an instance
in which a prosecutor has chosen to charge a criminal offense on the basis of such
conduct before addressing the legal issues that might be raised in such a
prosecution.
26
another or by means of a telegraph, telephone, or other device” (italics added),
violates the statute and is punishable as specified in the provision. Section 632,
subdivision (b) provides in relevant part that “[t]he term ‘person’ includes an
individual, business association, . . . corporation, . . . or other legal entity, . . . but
excludes an individual known by all parties to a confidential communication to be
. . . recording the communication.” (Italics added.) Section 632, subdivision (c),
in turn, provides that “[t]he term ‘confidential communication’ includes any
communication carried on in circumstances as may reasonably indicate that any
party to the communication desires it to be confined to the parties thereto,[7] but
excludes a communication made in a public gathering . . . or in any other
circumstance in which the parties to the communication may reasonably expect
that the communication may be overheard or recorded.” (Italics added.)8
7
In Flanagan v. Flanagan (2002) 27 Cal.4th 766, 772-777, our court
addressed the question of when a communication is “confidential” within the
meaning of this provision, holding that “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” (id. at
pp. 776-777). We explained that the statutory scheme “protects against
intentional, nonconsensual recording of telephone conversations regardless of the
content of the conversation or the type of telephone involved.” (Id. at p. 776.)
8
Section 632 provides in full: “(a) 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.
“(b) The term ‘person’ includes an individual, business association,
(footnote continued on next page)
27
As made clear by the terms of section 632 as a whole, this provision does
not absolutely preclude a party to a telephone conversation from recording the
conversation, but rather simply prohibits such a party from secretly or
surreptitiously recording the conversation, that is, from recording the conversation
without first informing all parties to the conversation that the conversation is being
(footnote continued from previous page)
partnership, corporation, limited liability company, or other legal entity, and an
individual acting or purporting to act for or on behalf of any government or
subdivision thereof, whether federal, state, or local, but excludes an individual
known by all parties to a confidential communication to be overhearing or
recording the communication.
“(c) The term ‘confidential communication’ includes any communication
carried on in circumstances as may reasonably indicate that any party to the
communication desires it to be confined to the parties thereto, but excludes a
communication made in a public gathering or in any legislative, judicial, executive
or administrative proceeding open to the public, or in any other circumstance in
which the parties to the communication may reasonably expect that the
communication may be overheard or recorded.
“(d) Except as proof in an action or prosecution for violation of this section,
no evidence obtained as a result of eavesdropping upon or recording a confidential
communication in violation of this section shall be admissible in any judicial,
administrative, legislative, or other proceeding.
“(e) This section does not apply (1) to any public utility engaged in the
business of providing communications services and facilities, or to the officers,
employees or agents thereof, where the acts otherwise prohibited by this section
are for the purpose of construction, maintenance, conduct or operation of the
services and facilities of the public utility, or (2) to the use of any instrument,
equipment, facility, or service furnished and used pursuant to the tariffs of a public
utility, or (3) to any telephonic communication system used for communication
exclusively within a state, county, city and county, or city correctional facility.
“(f) This section does not apply to the use of hearing aids and similar
devices, by persons afflicted with impaired hearing, for the purpose of overcoming
the impairment to permit the hearing of sounds ordinarily audible to the human
ear.”
28
recorded.9 If, after being so advised, another party does not wish to participate in
the conversation, he or she simply may decline to continue the communication. A
business that adequately advises all parties to a telephone call, at the outset of the
conversation, of its intent to record the call would not violate the provision.10
The language of section 632 does not explicitly address the issue whether
the statute was intended to apply when one party to a telephone call is in
California and another party is outside California. The legislatively prescribed
9
Other provisions of the statutory scheme identify a number of limited
circumstances in which secret recording by one party to a communication is
permissible, such as when the recording is made “for the purpose of obtaining
evidence reasonably believed to relate to the commission by another party to the
communication of the crime of extortion, kidnapping, bribery, any felony
involving violence against the person, or a violation of Section 653m [making
obscene phone calls with the intent to annoy]” (§ 633.5), or when a victim of
domestic violence, acting pursuant to court authorization, records “any prohibited
communication made to him or her by the perpetrator” of domestic violence
(§ 633.6, subd. (a)). The calls at issue in this case do not fall within any of the
statutorily authorized circumstances.
10
In one passage in its opinion, the Court of Appeal suggested that even in
the absence of an explicit advisement, clients or customers of financial brokers
such as SSB “know or have reason to know” that their telephone calls with the
brokers are being recorded. The Court of Appeal, however, did not cite anything
in the record or any authority establishing such a proposition as a matter of law,
and in light of the circumstance that California consumers are accustomed to being
informed at the outset of a telephone call whenever a business entity intends to
record the call, it appears equally plausible that, in the absence of such an
advisement, a California consumer reasonably would anticipate that such a
telephone call is not being recorded, particularly in view of the strong privacy
interest most persons have with regard to the personal financial information
frequently disclosed in such calls.
The complaint in this case explicitly alleges that plaintiffs had a reasonable
expectation of privacy in the telephone calls in question, and because this case is
before us after the sustaining of a demurrer, we cannot assume for purposes of this
appeal that the telephone conversations here at issue were not “confidential
communications” within the meaning of section 632.
29
purpose of the 1967 invasion of privacy statute, however, is “to protect the privacy
of the people of this state” (§ 630), and that purpose certainly supports application
of the statute in a setting in which a person outside California records, without the
Californian’s knowledge or consent, a telephone conversation of a California
resident who is within California. Furthermore, the companion wiretapping
provision of the 1967 act — set forth in section 631, subdivision (a) —
specifically applies to any person who attempts to learn the content of any
communication “while the same is in transit . . . or is being sent from, or received
at any place within this state.” (Italics added).11 Nothing in the language or
purpose of the 1967 legislation suggests that the related provisions of section 632
should not similarly apply to protect against the secret recording of any
confidential communication that is sent from or received at any place within
California.
SSB contends that section 632 should not be interpreted to apply in such a
situation, because application of the statute in this setting would constitute a
disfavored “extraterritorial” application of the statute. (See, e.g., North Alaska
Salmon Co. v. Pillsbury (1916) 174 Cal. 1, 4.) Interpreting that statute to apply to
a person who, while outside California, secretly records what a California resident
is saying in a confidential communication while he or she is within California,
however, cannot accurately be characterized as an unauthorized extraterritorial
11
Section 631, subdivision (a) provides in relevant part: “Any person who,
by means of any machine, instrument, or contrivance . . . intentionally taps, or
makes any unauthorized connection . . . with any telegraph or telephone wire, . . .
or who . . . without the consent of all parties to the communication . . . attempts to
. . . learn the contents or meaning of any message, report, or communication while
the same is in transit or passing over any wire, line, or cable, or is being sent from,
or received at any place within this state” commits a violation of the provision.
30
application of the statute, but more reasonably is viewed as an instance of applying
the statute to a multistate event in which a crucial element — the confidential
communication by the California resident — occurred in California. The privacy
interest protected by the statute is no less directly and immediately invaded when a
communication within California is secretly and contemporaneously recorded
from outside the state than when this action occurs within the state. A person who
secretly and intentionally records such a conversation from outside the state
effectively acts within California in the same way a person effectively acts within
the state by, for example, intentionally shooting a person in California from across
the California-Nevada border. (See, for example, State v. Hall (N.C. 1894) 19
S.E. 602, 602-606; see generally Leflar, American Conflicts Law (4th ed. 1986)
§ 111, pp. 309-311.) Because there can be no question but that the principal
purpose of section 632 is to protect the privacy of confidential communications of
California residents while they are in California, we believe it is clear that section
632 was intended, and reasonably must be interpreted, to apply in this setting.
Unlike the conduct at issue in the cases cited by SSB (see, for example, North
Alaska Salmon Co. v. Pillsbury, supra, 174 Cal. 1, 4; Norwest Mortgage, Inc. v.
Superior Court (1999) 72 Cal.App.4th 214, 222-223 ), here SSB’s employees
allegedly acted to record conversations that were occurring contemporaneously in
California. Although, as explained below in connection with the discussion of the
relevant Georgia privacy statute, the privacy statute of another state also may
apply to an interstate telephone call between California and the other state, we
conclude that section 632 clearly is applicable in the present setting.12
12
SSB concedes that this matter would not involve an improper
extraterritorial application of a California statute if SSB’s alleged wrongful
conduct related to the content of a communication sent into California — for
(footnote continued on next page)
31
Accordingly, construing section 632 in light of the language and purpose
of the relevant statutory scheme as a whole, we conclude that section 632 applies
when a confidential communication takes place in part in California and in part in
another state.13
(footnote continued from previous page)
example, an obscene or harassing phone call (see, e.g., Schlussel v. Schlussel
(1983) 141 Cal.App.3d 194, 197-198 [holding that Pen. Code, § 653m, prohibiting
the making of an obscene phone call with the intent to annoy, applies to a phone
call made from Florida to California]) — but it maintains that this case is
distinguishable because here the alleged wrongful conduct does not relate to the
content of SSB’s communications. Unlike the statute at issue in the Schlussel case
to which SSB refers, however, the focus and purpose of the California statute here
at issue is the protection of privacy, and the alleged conduct of SSB in question
constitutes an invasion of privacy within California. Accordingly, for the same
reason that the court in Schlussel concluded that the statute there at issue applied
to an instance in which a phone call originating outside California inflicted, within
California, the type of injury against which the relevant statute was intended to
provide protection, we conclude that section 632 properly must be interpreted to
apply to the invasion of privacy alleged to have occurred within California in the
present case.
13
In arguing that section 632 should not be interpreted to apply when a
telephone call to or from California is recorded in another state, SSB relies upon a
letter written by Assembly Speaker Jesse Unruh, the principal author of the 1967
invasion-of-privacy statute, in which he refers to an amendment to the 1967 act
that he was considering introducing in the Legislature. Although the letter ⎯
which was not before, or considered by, the Legislature ⎯ does not appear to be a
proper subject of judicial notice (see, for example, California Teachers Assn. v.
San Diego Community College Dist. (1981) 28 Cal.3d 692, 699-701), in any event
we do not believe that the letter supports SSB’s contention.
In the letter in question, the amendment that Speaker Unruh ostensibly
proposed to introduce is set forth as follows: “No evidence obtained as a result of
eavesdropping upon or recording a confidential communication in any other state,
government, country or jurisdiction which if obtained in this state would have
been obtained in violation of this section shall be admissible in any judicial,
administrative, legislative, or other proceeding.” The letter explains that “[t]he
purpose of the above amendment is to cover under the statute’s provision out-of-
state testimony obtained by means illegal in California, and to rule out such
(footnote continued on next page)
32
B
We turn next to the applicable Georgia law.
Georgia, like California, has enacted a broad statute addressing
eavesdropping upon or recording of private conversations. The basic provision of
the Georgia privacy statute provides in relevant part that “[i]t shall be unlawful
for: (1) Any person in a clandestine manner intentionally to overhear, transmit, or
record or attempt to overhear, transmit, or record the private conversation of
another which shall originate in any private place . . .” (Ga. Code Ann. § 16-11-
62.) The Georgia Supreme Court, in a decision concluding that the statute applied
to one spouse’s secret recording of telephone conversations of the other spouse,
quoted a provision setting forth the general legislative intent underlying the
statute: “ ‘It is the public policy of this State and the purpose and intent of this
Chapter to protect the citizens of this State from invasions upon their privacy.
This Chapter shall be construed in light of this expressed policy and purpose. The
(footnote continued from previous page)
testimony just as it would inadmissible if obtained in California.” (Jesse M.
Unruh, Speaker of the Assembly, letter to H. Lee Van Boven, California Law
Review, Nov. 22, 1968.)
Although SSB apparently assumes that the amendment in question was
intended to deal with the type of factual setting at issue in the present case, in our
view it is more likely that the proposed amendment was intended to cover a
situation in which the entire secretly recorded communication (telephone call or
other) occurred outside of California, and in which a party in a lawsuit in
California thereafter sought to introduce the recording of the communication into
evidence in the California proceeding. There is nothing in the letter ⎯ or in any
of the appropriately considered legislative history ⎯ indicating that Speaker
Unruh (or, more importantly, the Legislature as a whole) believed the originally
enacted version of section 632 would not apply to a telephone conversation in
which an out-of-state participant secretly recorded what was said by a California
party while within California.
33
employment of devices which would permit the clandestine overhearing, recording
or transmitting of conversations or observing of activities which occur in a private
place has come to be a threat to an individual’s right of privacy and, therefore,
should be prohibited.’ ” (Ransom v. Ransom (Ga. 1985) 324 S.E.2d 437, 438-439;
see also Bishop v. State, supra, 526 S.E.2d 917 [interpreting Georgia statute to
prohibit parents from recording their teenage child’s telephone conversations
without the teenager’s consent].)
At the same time, however, another provision of the relevant Georgia
statutory scheme explicitly provides that “[n]othing in Code Section 16-11-62
[that is, the foregoing statutory provision] shall prohibit a person from intercepting
a wire, oral, or electronic communication where such person is a party to the
communication or one of the parties to the communication has given prior consent
to such interception.” (Italics added.) (Ga. Code. Ann. § 16-11-66.) Georgia
decisions long have interpreted the relevant Georgia privacy statutes as not
applicable to a situation in which a conversation is recorded by one of the
participants in the conversation. (See, for example, Mitchell v. State (Ga. 1977)
235 S.E.2d 509, 510-511.) In this respect, of course, Georgia law differs from
California law.14
14
The dichotomy between the California and Georgia privacy statutes in this
regard is representative of a division in analogous privacy statutes throughout the
nation. Privacy statutes in a majority of states (as well as the comparable federal
provision) — like the Georgia statute — prohibit the recording of private
conversations except with the consent of one party to the conversation, but a
sizeable minority of states (11 states, according to an apparently well-researched
law review article) — including California — prohibit such recording without the
consent of all parties to the conversation. (See Bast, What’s Bugging You?
Inconsistencies and Irrationalities of the Law of Eavesdropping (1998) 47 DePaul
L.Rev. 837, 870.)
34
With regard to the further question whether the Georgia privacy statutes are
intended to apply to a telephone call in which one of the parties is in Georgia and
one of the parties is in another state, there is nothing in the language of the
Georgia statutes that expressly addresses this issue. In light of the underlying
purpose of the Georgia statute, however, we believe that — as we have concluded
with regard to the California statute — the applicable Georgia statutes were
intended, and reasonably should be interpreted, to apply to such a call.
A hypothetical example may help explain our conclusion in this regard.
Consider a situation in which a third party —located in a state other than Georgia
or California — were to wiretap or intercept a telephone call between a person in
Georgia and a person in California without the knowledge or consent of either
party to the conversation. In that setting, the wiretapping would violate the
relevant privacy law of both California and Georgia, and each state clearly would
have a legitimate and substantial interest in applying its statute to the unlawful
invasion of privacy of the person located within its state, whereas the state in
which the person who committed the wiretapping was situated would not have that
interest (although it still might have an interest in permitting an action against the
wiretapper if the conduct were unlawful under its state’s law). As this example
demonstrates, in light of the principal purpose underlying the kind of privacy
provisions here at issue, it is most reasonable to conclude that a state’s privacy
statute should be interpreted to apply to a telephone call in which one or more of
the parties to the call are located within the state.
Accordingly, we conclude that the Georgia statute, as well as the California
statute, applies to the telephone calls at issue in this case, and that the law of each
state differs with regard to the legality of such conduct. Although it is unlawful
under California law for a party to a telephone conversation to record the
35
conversation without the knowledge of all other parties to the conversation, such
conduct is not unlawful under Georgia law.
C
Plaintiffs maintain, however, that although California law and Georgia law
differ, there nonetheless is no true conflict in this situation. Although it is evident
that California has a legitimate interest in having its law applied in the present
setting because plaintiffs are California residents whose telephone conversations
in California were recorded without their knowledge or consent, plaintiffs contend
that Georgia does not have an interest in having its law applied here, because the
fundamental purpose of the Georgia statute is to protect the privacy of
conversations that have some relationship to Georgia and in this case there is no
claim that the privacy of any Georgia resident or any person or business in
Georgia has been violated.
Although plaintiffs are correct that the facts of this case do not implicate
the privacy interests protected by the Georgia statute, the Georgia statute also can
reasonably be viewed as establishing the general ground rules under which
persons in Georgia may act with regard to the recording of private conversations,
including telephone calls. Because Georgia law prohibits the recording of such
conversations except when the recording is made by one of the parties to the
conversation or with such a party’s consent, persons in Georgia reasonably may
expect, at least as a general matter, that they lawfully can record their own
conversations with others without obtaining the other person’s consent, and
Georgia has a legitimate interest in not having liability imposed on persons or
businesses who have acted in Georgia in reasonable reliance on the provisions of
Georgia law. Because the conduct of SSB that is at issue in this case involves
activity that its employees engaged in within Georgia, we believe that Georgia
possesses a legitimate interest in having its law applied in this setting.
36
Accordingly, we conclude that this case presents a true conflict of laws.
V
As discussed at some length earlier (ante, at pp. 18-24), the governing
authorities establish that once a court’s preliminary analysis has identified a true
conflict, “the ‘comparative impairment’ approach . . . seeks to determine which
state’s interest would be more impaired if its policy were subordinated to the
policy of the other state.” (Bernhard, supra, 16 Cal.3d 313, 320.) As our prior
decisions have emphasized, in conducting this evaluation “[t]he court does not
‘ “weigh” the conflicting governmental interests in the sense of determining which
conflicting law manifest[s] the “better” or the “worthier” social policy on the
specific issue’ ” (ibid.), because “ ‘[a]n attempted balancing of conflicting state
policies in that sense . . . [would be] difficult to justify in the context of a federal
system in which, within constitutional limits, states are empowered to mold their
policies as they wish.’ ” (Ibid.) Instead, the comparative impairment process can
more “ ‘accurately be described as . . . [an] accommodation of conflicting state
policies’ ” (ibid.), attempting, to the extent practicable, to achieve “the ‘maximum
attainment of underlying purpose by all governmental entities.’ ” (Offshore
Rental, supra, 22 Cal.3d 157, 166.) Under the comparative impairment approach,
true conflicts are resolved “by applying the law of the state whose interest would
be the more impaired if its law were not applied.” (Bernhard, supra, 16 Cal.3d at
p. 320.)
We proceed to evaluate the relative impairment of each state’s interests that
would result were the law of the other state to be applied in this setting, beginning
with California’s.
A
In considering the degree of impairment of California’s interest that would
result if Georgia law rather than California law were applied, we note initially that
37
the objective of protecting individuals in California from the secret recording of
confidential communications by or at the behest of another party to the
communication was one of the principal purposes underlying the 1967 invasion of
privacy enactment. When the proposed legislation — then designated Assembly
Bill No. 860 — was before the California Legislature, Assembly Speaker Unruh,
the principal author of the legislation, prepared a statement that he delivered
before the Senate Committee on the Judiciary in conjunction with its consideration
of the bill, in which he explained the impetus for the legislation and described
“four major changes” in the law proposed in the bill. (Statement by Assem.
Speaker Unruh Before Sen. Com. on Judiciary re Assem. Bill No. 860 (1967-1968
Reg. Sess.) June 8, 1967, p. 2.) The first of the major changes described in
Speaker Unruh’s statement concerned the issue in question here: “In the first
place, whereas such invasions of privacy are presently legal if only one party
consents to the listening in, Assembly Bill 860 would require that all parties must
consent. This is a most reasonable requirement. [¶] Presently it is entirely legal
for one who receives a call to be totally unaware that it is being listened to by
another party. Likewise, a party may converse in person with another party who is
secretly recording the conversation — he may be seriously injured by that
conversation, either personally or in his business affairs — and he has no recourse
at law. [¶] Assembly Bill 860 would correct this defect. It is a defect that was
less meaningful before the recent development and widespread availability of
eavesdropping devices, but as the advertising material which I have passed out to
you indicates, it is a legal defect which is most apparent today.” (Id., pp. 2-3,
underlining in original.)
In addition, it is clear that this is most certainly not an instance like
Offshore Rental, supra, 22 Cal.3d 157, in which the court found that the California
statute in question was “ancient” and rarely if ever utilized or relied upon and
38
concluded that the state had little current interest in the application of its own law.
(Id. at pp. 167-168.) On the contrary, California decisions repeatedly have
invoked and vigorously enforced the provisions of section 632 (see, e.g., Flanagan
v. Flanagan, supra, 27 Cal.4th 766, 776 [“the Privacy Act . . . protects against
intentional, nonconsensual recording of telephone conversations regardless of the
content of the conversation or the type of telephone involved]”; Ribas v. Clark
(1985) 38 Cal.3d 355, 361 [“secret monitoring denies the speaker an important
aspect of privacy of communication — the right to control the nature and extent of
the firsthand dissemination of his statements”]; Warden v. Kahn, supra, 99
Cal.App.3d 805, 812-814) and have looked to the policy embodied in the
provision in analyzing invasion-of-privacy claims in related contexts. (See, e.g.,
Sanders v. American Broadcasting Companies (1999) 20 Cal.4th 907, 914-923;
Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 234-235.)
Furthermore, in recent years the California Legislature has continued to add
provisions to and make modifications of the invasion-of-privacy statutory scheme
here at issue (see, for example, Pen. Code, §§ 632.5-632.7 [cordless or cellular
phones], 633.6 [permitting recording by victims of domestic violence upon court
order]) and in addition repeatedly has enacted new legislation in related areas in an
effort to increase the protection of California consumers’ privacy in the face of a
perceived escalation in the impingement upon privacy interests caused by various
business practices. (See, e.g., Civ. Code, §§ 1798.80-1798.84 [disclosure of
consumer records], 1798.85-1795.86 [Social Security numbers], 1798.90.1
[driver’s license information], 1798.91 [medical information], 1799-1799.2
[business records], 1799.3 [disclosure of personal information by providers of
video cassette sales or rental services].) In addition, California’s explicit
constitutional privacy provision (Cal. Const., art. I, § 1) was enacted in part
specifically to protect Californians from overly intrusive business practices that
39
were seen to pose a significant and increasing threat to personal privacy. (See,
e.g., Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 15-20; White v.
Davis (1975) 13 Cal.3d 757, 775; cf. Rattay v. City of National City (9th Cir.
1994) 51 F.3d 793, 797 [“Having one’s personal conversations secretly recorded
may well infringe upon the right to privacy guaranteed by the California
Constitution”].)
Thus, we believe that California must be viewed as having a strong and
continuing interest in the full and vigorous application of the provisions of section
632 prohibiting the recording of telephone conversations without the knowledge or
consent of all parties to the conversation.
We also believe that the failure to apply section 632 in the present context
would substantially undermine the protection afforded by the statute. Many
companies who do business in California are national or international firms that
have headquarters, administrative offices, or — in view of the recent trend toward
outsourcing — at least telephone operators located outside of California. If
businesses could maintain a regular practice of secretly recording all telephone
conversations with their California clients or customers in which the business
employee is located outside of California, that practice would represent a
significant inroad into the privacy interest that the statute was intended to protect.
As noted above (ante, at pp. 8-10), an out-of-state company that does business in
another state is required, at least as a general matter, to comply with the laws of a
state and locality in which it has chosen to do business. (See, e.g., Watson v.
Employers Liability Assurance Corp., supra, 348 U.S. 66, 72.) As this court
determined in Bernhard, supra, 16 Cal.3d 313, 322-323, with regard to the need to
apply California law relating to the liability of tavern owners to the out-of-state
tavern owner at issue in that case, the failure to apply California law in the present
context seriously would undermine the objective and purpose of the statute.
40
Moreover, if section 632 — and, by analogy, other similar consumer-
oriented privacy statutes that have been enacted in California — could not be
applied effectively to out-of-state companies but only to California companies, the
unequal application of the law very well might place local companies at a
competitive disadvantage with their out-of-state counterparts. To the extent out-
of-state companies may utilize such undisclosed recording to further their
economic interests — perhaps in selectively disclosing recordings when disclosure
serves the company’s interest, but not volunteering the recordings’ existence (or
quickly destroying them) when they would be detrimental to the company —
California companies that are required to comply with California law would be
disadvantaged. By contrast, application of section 632 to all companies in their
dealings with California residents would treat each company equally with regard
to California’s concern for the privacy of the state’s consumers.
In sum, we conclude that the failure to apply California law in the present
context would result in a significant impairment of California’s interests.
B
By contrast, we believe that, for a number of reasons, the application of
California law rather than Georgia law in the context presented by the facts of this
case would have a relatively less severe effect on Georgia’s interests.
First, because California law, with regard to the particular matter here at
issue, is more protective of privacy interests than the comparable Georgia privacy
statute, the application of California law would not violate any privacy interest
protected by Georgia law. In addition, there is, of course, nothing in Georgia law
that requires any person or business to record a telephone call without providing
notice to the other parties to the call, and thus persons could comply with
California law without violating any provision of Georgia law.
41
Second, with respect to businesses in Georgia that record telephone calls,
California law would apply only to those telephone calls that are made to or
received from California, not to all telephone calls to and from such Georgia
businesses. In considering the practicability of singling out California calls for
distinct treatment, there would appear to be little question that it would be feasible
for a business to identify those calls that its own employees are making to current
or potential California clients. Similarly, with regard to calls received by a
business in Georgia, it appears likely that technical tools — such as “caller ID” —
are available that readily would make it possible to identify which calls received
by the Georgia office are coming from California, and, even in the absence of such
technological devices, there would appear to be no reason why an SSB employee,
when answering a call, could not simply inquire where the client is calling from.
Thus, application of California law would appear to affect only those telephone
calls to or from California.
Furthermore, applying California law to a Georgia business’s recording of
telephone calls between its employees and California customers will not severely
impair Georgia’s interests. As discussed above (ante, at pp. 28-29), California law
does not totally prohibit a party to a telephone call from recording the call, but
rather prohibits only the secret or undisclosed recording of telephone
conversations, that is, the recording of such calls without the knowledge of all
parties to the call. Thus, if a Georgia business discloses at the outset of a call
made to or received from a California customer that the call is being recorded, the
parties to the call will not have a reasonable expectation that the call is not being
recorded and the recording would not violate section 632. Accordingly, to the
extent Georgia law is intended to protect the right of a business to record
conversations when it has a legitimate business justification for doing so, the
application of California law to telephone calls between a Georgia business and its
42
California clients or customers would not defeat that interest. The Court of
Appeal, in reaching the conclusion that Georgia law should apply, thought it
important to emphasize that Georgia has a legitimate interest in permitting a
financial services entity, such as SSB, to routinely record telephone calls “for the
perfectly understandable purpose of protecting themselves from the customer who
might later claim the institution misunderstood his or her investment instructions,”
but the appellate court failed to recognize that the application of California law
would not thwart that interest. Although the application of California law to
telephone calls between Georgia and California would impair Georgia’s interests
to the extent Georgia law is intended to protect a business’s ability secretly to
record its customers’ telephone calls, we believe that, particularly as applied to a
business’s blanket policy of routinely recording telephone calls to and from
California customers, this consequence would represent only a relatively minor
impairment of Georgia’s interests.
For the foregoing reasons, we conclude that, as a realistic matter, the
application of California law in this context would not result in a severe
impairment of Georgia’s interests.
C
Accordingly, because we have found that the interests of California would
be severely impaired if its law were not applied in this context, whereas Georgia’s
interest would not be significantly impaired if California law rather than Georgia
law were applied, we conclude that, with the one exception we discuss below,
California law should apply in determining whether the alleged secret recording of
telephone conversations at issue in this case constitutes an unlawful invasion of
privacy.
43
VI
Although, for the reasons just discussed, we have concluded that, as a
general matter, the comparative impairment analysis supports the application of
California law in this context, we believe it is appropriate to make an exception
with regard to one distinct issue — the question of SSB’s potential monetary
liability for its past conduct.
As we have noted above, prior California decisions establish that one of the
objectives of the comparative impairment analysis “is the ‘maximum attainment of
underlying purpose by all governmental entities . . . .’ ” (Offshore Rental, supra,
22 Cal.3d 157, 166, italics added.) In seeking to maximize each affected state’s
interest to the extent feasible in the present context, we believe it is appropriate,
for the reasons discussed below, to restrain the application of California law with
regard to the imposition of liability for acts that have occurred in the past, in order
to accommodate Georgia’s interest in protecting persons who acted in Georgia in
reasonable reliance on Georgia law from being subjected to liability on the basis
of such action.
To begin with, we recognize that Georgia has a legitimate interest in
ensuring that individuals and businesses who act in Georgia with the reasonable
expectation that Georgia law applies to their conduct are not thereafter
unexpectedly and unforeseeably subjected to liability for such actions. The Court
of Appeal in the present case relied heavily upon this interest in reaching its
conclusion, and we believe that court’s assessment of the substantiality of this
state interest is reasonable. (Accord People v. One 1953 Ford Victoria (1957) 48
Cal.3d 595, 599 [recognizing propriety of accommodating reasonable expectations
of persons who act in another state in reasonable reliance on the other state’s
law].)
44
To be sure, one legitimately might maintain that SSB reasonably should
have anticipated that its recording of a telephone conversation with a California
client when the client is in California would be governed by California law,
regardless of where the SSB employee with whom the client is speaking happens
to be located. (See NASD Notice to Members 98-52 (eff. Aug. 17, 1998),
p. 394.)15 Although SSB would have reached that conclusion had it undertaken
the extended choice-of-law analysis set forth above, we recognize that at the time
of SSB’s past actions the few lower court decisions that had considered a legal
challenge to the recording of an interstate telephone conversation had reached
differing conclusions as to which state’s law should apply ― the law of the state
where the person who recorded the conversation was situated, or instead the law of
15
This NASD document, issued in 1998 with regard to the application of
NASD rule 3010 (see, ante, at p. 11, fn. 3), states in relevant part: “In complying
with the Taping Rule, members must comply with federal and state civil and
criminal statutes governing the tape recording of conversations. Each state has a
statute governing wiretapping; there also is a federal statute governing wiretapping
and electronic surveillance. The federal statute and the majority of the state
statutes permit taping the telephone conversations with the consent of one party
(one-party statutes); a minority of state statutes require the consent of all parties to
the conversation (two-party statutes). Three issues arise from the proposed Rule;
what is necessary to comply with one-party statutes; what is necessary to comply
with two-party statutes; and how to comply where a conversation occurs between
a person in a one-party state and a person in a two-party state.
“The question of which state law applies when a conversation occurs
between a person in a one-party statute state and a person in a two-party statute
state is an open issue that depends on the individual laws of each state and the
individual facts. Firms would be required to independently determine that state
laws are satisfied. The best practice in each case would be for member firms to
notify their registered persons and customers that their telephone calls are being
tape recorded.” (NASD Notice to Members 98-52, p. 394, italics added, fns.
omitted.)
45
the state where the person whose words were being recorded was located.16
Although none of the prior cases involved the type of repeated recording of
customer telephone calls by a business entity that is involved here, we nonetheless
believe that prior to our resolution of the issue in this case a business entity
reasonably might have been uncertain as to which state’s law was applicable and
reasonably might have relied upon the law of the state in which its employee was
located. Under these circumstances, we believe Georgia has a legitimate interest
16
The prior cases involved the application of the law of four jurisdictions:
Florida, Massachusetts, New York, and Texas, although not all of the cases
analyzed the issue under choice-of-law principles. In Florida, an intermediate
state appellate court held that Florida law — which, like California law, prohibits
the recording of a telephone call without the consent of all parties — applied and
rendered unlawful the recording in Georgia of a telephone call between the
defendant in Georgia and the plaintiff in Florida. (Koch v. Kimball
(Fla.Ct.App.1998) 710 So.3d 5.) In Massachusetts, a number of federal district
court decisions applying Massachusetts law ruled that the law of the state in which
the person is doing the recording should apply, and therefore rejected actions
brought by Massachusetts residents (whose law — like California law — requires
the consent of all parties) against defendants who recorded the calls in states
where the consent of only one party is required. (MacNeill Engineering Co. v.
Trisport, Ltd. (D.Mass. 1999) 59 F.Supp.2d 199, 202; Pendell v. AMS/Oil, Inc
(D.Mass. 1986) 1986 U.S.Dist. Lexis 26089.) In New York, a federal district
court applying New York law held that where the party whose conversation was
secretly recorded was located in a state that permitted the recording of a
conversation with the consent of one party, that party could not maintain an action
even though the defendant who recorded the conversation was located in a state
that required the consent of all parties to the conversation. (Wheringer v.
Brannigan (S.D.N.Y. 1990) 1990 U.S. Dist. Lexis 16447; see also Locke v. Aston
(N.Y. App. Div. Apr. 18, 2006) 2006 N.Y. App. Div. Lexis 4464.) In Texas, a
federal district court applying Texas’s “most significant relationship” choice-of-
law test concluded that Texas law (which required the consent of only one party to
the conversation), rather than California law, should apply when a company
employee in Texas recorded telephone conversations with other company
employees in California. (Becker v. Computer Sciences Corp. (S.D.Tex. 1982)
541 F.Supp. 694, 703-705.)
46
in not having SSB subjected to liability on the basis of its employees’ past actions
in Georgia.
At the same time, although California law expressly authorizes the recovery
of damages for violations of section 632 (§ 637.2, subd. (a)), we believe that it is
appropriate to recognize that ascribing a monetary value to the invasion of privacy
resulting from the secret recording of a telephone conversation is difficult in any
event, and that the deterrent value of such a potential monetary recovery cannot
affect conduct that already has occurred. Under these circumstances, we conclude
that denying the recovery of damages for conduct that was undertaken in the past
in ostensible reliance on the law of another state — and prior to our clarification of
which state’s law applies in this context — will not seriously impair California’s
interests.
Accordingly, although we conclude that in general California law is
applicable in this setting and that plaintiffs may seek injunctive relief to require
SSB to comply with California law in the future, we shall apply Georgia law with
respect to SSB’s potential monetary liability for its past conduct, thus relieving
SSB of any liability for damages for its past recording of conversations. (Cf., e.g.,
Ex parte Archy (1858) 9 Cal. 147, 171 [applying clarification of choice-of-law rule
prospectively].)17 In light of our decision, of course, out-of-state companies that
do business in California now are on notice that, with regard to future conduct,
they are subject to California law with regard to the recording of telephone
17
For the same reasons that lead us to conclude that monetary damages may
not be obtained on the basis of SSB’s past actions, we also conclude that it would
be inappropriate to require SSB to provide reimbursement under the provisions of
the unfair competition law on the basis of such past actions.
47
conversations made to or received from California, and that the full range of civil
sanctions afforded by California law may be imposed for future violations.18
VII
Finally, we briefly address a point raised by one of the amicus curiae briefs
that have been filed in this court, focusing specifically upon the potential
application of California’s unfair competition law (UCL) in this case. The brief of
amicus curie Pacific Legal Foundation suggests that because, as compared to other
states’ consumer protection laws, the UCL “provides the broadest right of action
to the widest number of people,” the reach of the statute should be restrained in the
application of California’s choice-of-law principles.
In our view, we have no occasion in the present case to address the
concerns advanced by amicus curiae, because this case does not present any of the
potentially more controversial aspects of the UCL and the provisions of that law
will not affect the potential relief that plaintiffs may obtain in this case. Here, we
are not dealing with conduct that assertedly is simply “unfair” (see generally
Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20
Cal.4th 163, 180-187), but rather with alleged conduct that is “unlawful” and
already subject to an express statutory private right of action. (§ 637.2.) Further,
18
To avoid any misunderstanding regarding the scope of our ruling, we note
that this case does not present the question whether secret recordings that were
made prior to this decision would or would not be admissible in a judicial or other
proceeding, and we express no opinion on that question.
Furthermore, because this case does not involve the isolated recording of a
personal telephone call by an out-of-state individual in a nonbusiness setting, or
the recording of a phone call by an out-of-state business that has a reasonable,
individualized basis for believing that a particular caller is engaged in criminal or
wrongful conduct, we have no occasion to determine how the comparative
impairment analysis would apply in those or other comparable settings.
48
both the named plaintiffs and the members of the proposed class allegedly are
direct victims of the unlawful conduct, rather than simply unharmed persons suing
on behalf of the general public. (Cf., e.g., Consumers Union of United States, Inc.
v. Fisher Development, Inc. (1989) 208 Cal.App.3d 1433, 1437-1444; see also
Prop. 64, Gen. Elec. (Nov. 2, 2004), amending Bus. & Prof. Code, § 17204.) In
addition, an injunctive remedy is authorized not only by the terms of the UCL
(Bus. & Prof. Code, § 17203), but by the terms of section 637.2 itself. Finally, as
discussed earlier (ante, at p. 47, fn. 17), to the extent plaintiffs seek reimbursement
under the UCL for SSB’s past conduct, we have concluded that such
reimbursement is unavailable.
VIII
For the reasons discussed above, the judgment of the Court of Appeal is
reversed insofar as it precludes plaintiffs from going forward with their action to
obtain injunctive relief, and is affirmed insofar as it upholds the dismissal of the
action with regard to the recovery of monetary damages and restitution. Plaintiffs
shall recover their costs on appeal.
GEORGE, C. J.
WE CONCUR:
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
49
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Kearney v. Salomon Smith Barney, Inc.
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 117 Cal.App.4th 446
Rehearing Granted
__________________________________________________________________________________
Opinion No. S124739
Date Filed: July 13, 2006
__________________________________________________________________________________
Court: Superior
County: San Francisco
Judge: A. James Robertson II
__________________________________________________________________________________
Attorneys for Appellant:
Markun Zusman & Compton, David S. Markun, Edward S. Zusman and Kevin K. Eng for Plaintiffs and
Appellants.
Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Herschel T. Elkins,
Assistant Attorney General, and Margaret Reiter, Deputy Attorney General, as Amici Curiae on behalf of
Plaintiffs and Appellants.
__________________________________________________________________________________
Attorneys for Respondent:
Orrick, Herrington & Sutcliffe, William F. Alderman and Alejandro Vallejo for Defendant and Respondent.
National Chamber Litigation Center, Robin S. Conrad, Stephanie A. Martz; Mayer, Brown, Row & Maw,
Donald M. Falk and Fatima Goss Graves for the Chamber of Commerce of the United States of America as
Amicus Curiae on behalf of Defendant and Respondent.
Deborah J. La Fetra and Timothy Sandefur for Pacific Legal Foundation as Amicus Curiae on behalf of
Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Edward S. Zusman
Markun Zusman & Compton
465 California Street, Suite 500
San Francisco, CA 94104
(415) 438-4515
William F. Alderman
Orrick, Herrington & Sutcliffe
The Orrick Building
405 Howard Street
San Francisco, CA 94105-2669
(415) 773-5700
Opinion Information
| Date: | Docket Number: |
| Thu, 07/13/2006 | S124739 |
Parties
| 1 | Levy, Mark (Plaintiff and Appellant) Represented by Kevin Karwing Eng Markun, Zusman & Compton, LLP 465 California Street, 5th Floor San Francisco, CA |
| 2 | Levy, Mark (Plaintiff and Appellant) Represented by David Samuel Markun Markun, Zusman & Compton, LLP 465 California Street, 5th Floor San Francisco, CA |
| 3 | Levy, Mark (Plaintiff and Appellant) Represented by Edward Scott Zusman Markun, Zusman & Compton, LLP 465 California Street, 5th Floor San Francisco, CA |
| 4 | Kearney, Kelly (Plaintiff and Appellant) Represented by Edward Scott Zusman Markun, Zusman & Compton, LLP 465 California Street, 5th Floor San Francisco, CA |
| 5 | Salomon Smith Barney, Inc. (Defendant and Respondent) Represented by William F. Alderman Orrick Herrington & Sutcliffe, LLP 405 Howard Street San Francisco, CA |
| 6 | Pacific Legal Foundation (Amicus curiae) Represented by Deborah Joyce Lafetra Pacific Legal Foundation 3900 Lennane Drive, Suite 200 Sacramento, CA |
| 7 | Chamber Of Commerce Of United States Of America (Amicus curiae) Represented by Donald M. Falk Mayer Brown Rowe & Maw Two Palo Alto Square Palo Alto, CA |
| 8 | Chamber Of Commerce Of United States Of America (Amicus curiae) Represented by Robin S. Conrad National Chamber Litigation Center, Inc. 1615 "H" Street, N.W. Washington, DC |
| Disposition | |
| Jul 13 2006 | Opinion: Reversed |
| Dockets | |
| May 11 2004 | Petition for review filed by counsel for aplts. (Kelly Kearney, et al.) |
| May 12 2004 | Record requested |
| May 19 2004 | Received Court of Appeal record file jacket/briefs/accordian file |
| Jun 1 2004 | Answer to petition for review filed by resp Salomon Smith Barney |
| Jun 11 2004 | Reply to answer to petition filed |
| Jun 23 2004 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Werdegar, Chin, and Moreno, JJ. |
| Jun 28 2004 | Certification of interested entities or persons filed by aplts |
| Jul 12 2004 | Motion to dismiss filed (non-AA) by aplts to dismiss aplt Kearney with prejudice (due to settlement) |
| Jul 14 2004 | Certification of interested entities or persons filed by resp |
| Jul 23 2004 | Opening brief on the merits filed by counsel for aplts |
| Aug 11 2004 | Order filed Plaintiff Kelly Kearney, one of the named plaintiffs in this class action, has filed a request to be dismissed from this action with prejudice in light of a settlement agreement she has entered into with defendant Salomon Smith Barney, Inc. The request notes that the dismissal of Kearny will not affect the viability of the action, because plaintiff Marc Levy remains a party to this action and a putative class representative. Kelley Kearney's request to be dismissed with prejudice as a party to this action is GRANTED. |
| Aug 13 2004 | Change of contact information filed for: counsel for plaintiffs Kearney and Levy (change of firm address) |
| Aug 24 2004 | Answer brief on the merits filed by resp (40k) |
| Sep 13 2004 | Reply brief filed (case fully briefed) by aplts |
| Oct 7 2004 | Request for extension of time filed by the Calif. Attorney General to file an amicus curiae brief, to 11-19. |
| Oct 13 2004 | Received application to file Amicus Curiae Brief by Pacific Legal Foundation in support of resp |
| Oct 13 2004 | Received application to file Amicus Curiae Brief by the Chamber of Commerce of USA in support of resp |
| Oct 18 2004 | Application to appear as counsel pro hac vice (granted case) attorney Robin S. Conrad for amicus curiae Chamber of Commerce of USA |
| Oct 18 2004 | Extension of time granted to 11-19-04 for the Attorney General of Calif. to serve & file the amicus curiae brief. An answer may be served & filed by any party w/in 20 days of the filing of the brief. |
| Oct 27 2004 | Permission to file amicus curiae brief granted by Pacific Legal Foundation in support of resp. Answers may be filed w/in 20 days. |
| Oct 27 2004 | Amicus curiae brief filed by Pacific Legal Foundation in support of resp. |
| Oct 27 2004 | Permission to file amicus curiae brief granted by the Chamber of Commerce of the USA in support of resp. Answers may be filed w/in 20 days. |
| Oct 27 2004 | Amicus curiae brief filed by the Chamber of Commerce of the USA in support of resp. |
| Oct 27 2004 | Application to appear as counsel pro hac vice granted by Robin S. Conrad for A/C Chamber of Commerce of the USA |
| Nov 16 2004 | Request for extension of time filed ATTORNEY GENERAL OF CALIF. to file an amicus curiae brief. Asking to Nov. 26, 2004. |
| Nov 16 2004 | Response to amicus curiae brief filed By appellants to AC brief filed by Pacific Legal Foundation. |
| Nov 16 2004 | Response to amicus curiae brief filed By appellants to AC brief filed by Chamber of Commerce of the United States of America. |
| Nov 22 2004 | Extension of time granted to Nov. 26, 2004 for the ATTORNEY GENERAL OF CALIF. to file the amicus curiae brief. |
| Nov 29 2004 | Filed: letter from Attorney General stating they will not file an amicus curiae brief. |
| May 2 2006 | Case ordered on calendar June 1, 2006, at 9:00 a.m., in San Francisco |
| May 10 2006 | Change of contact information filed for: Attorney William F. Alderman of Orrick , Herrington & Sutcliffe. New address is 405 Howard St. SF. |
| May 22 2006 | Note: Mail returned and re-sent |
| May 22 2006 | Supplemental brief filed Respondent, Salomon Smith Barney, Inc. by counsel, William F. Alderman. |
| Jun 1 2006 | Cause argued and submitted |
| Jul 13 2006 | Opinion filed: Judgment reversed insofar as it precludes plaintiffs from going forward with their action to obtain injuncitve relief, and is affirmed insofar as it upholds the dismissal of the action with regard to the recovery of monetary damages and restitution. Plaintiffs shall recover their costs on appeal. Opinion by George, C.J. -----joined by Kennard, Baxter, Werdegar, Chin, Moreno & Corrigan, JJ. |
| Aug 7 2006 | Request for extension of time filed to October 11, 2006 to file appellant's application to enlarge time for finality of decision and to extend time to file petition for rehearing to August 18, 2006 by Edward S. Zusman, counsel |
| Aug 7 2006 | Request for modification of opinion filed by the Office of the Attorney General by Margaret Reiter, counsel |
| Aug 8 2006 | Time extended to consider modification or rehearing finality of the opinion in the above-entitled case is hereby extended to and including October 11, 2006. |
| Aug 14 2006 | Received: supplemental proof of service of request for modification letter brief request for modification letter brief by Margaret Reiter, Supervising Deputy Attorney General |
| Sep 5 2006 | Received: Untimely petition for rehearing from Appellants Kelly Kearney et al., |
| Sep 5 2006 | Application for relief from default filed Kelly Kearney et al.,, Appellants by Edward S. Zusman, counsel |
| Sep 5 2006 | Order filed Plaintiffs' motion for relief from default and for permission to file a late petition for rehearing and request for modification, filed on September 1, 2006, is granted. |
| Sep 5 2006 | Rehearing petition filed With permission. |
| Sep 13 2006 | Answer to rehearing petition filed Respondent, Salomon Smith Barney by counsel, William F. Alderman. |
| Sep 20 2006 | Opposition filed Salomon Smith Barney, Inc., respondent by William F. Alderman, counsel with permission |
| Sep 27 2006 | Rehearing denied Request for modification denied. |
| Sep 27 2006 | Remittitur issued (civil case) |
| Oct 5 2006 | Received: receipt for remittitur CA 1/2. |
| Briefs | |
| Jul 23 2004 | Opening brief on the merits filed |
| Aug 24 2004 | Answer brief on the merits filed |
| Sep 13 2004 | Reply brief filed (case fully briefed) |
| Oct 27 2004 | Amicus curiae brief filed |
| Oct 27 2004 | Amicus curiae brief filed |
| Nov 16 2004 | Response to amicus curiae brief filed |
| Nov 16 2004 | Response to amicus curiae brief filed |
