Legal Question in Business Law in California

Recorded Conversations

I have two questions:

1) Can a recorded conversation, recorded over the phone without the consent of the other person, be used as evidence against that person in court for a small claims civil case? Or is there a law that requires the CONSENT of the other person to a recorded conversation before that conversation can be used as evidence against that person? I thought I read somewhere that consent to a recorded conversation is first required before that conversation can be used as evidence. Is this true or not? If true, what code is this section of law under?

2) If the Defendant doesn't show at the hearing date for a small claims lawsuit and a default judgment is entered against him, does the defendant then have the right to APPEAL the default judgment and get a new hearing? Or must the defendant first file a MOTION TO VACATE the default judgment with the same court, and then if the motion to vacate is denied, then appeal the default judgment?

In other words, if a Defendant has a default judgment entered against him from a no show in small claims, does the Defendant first have to file a motion to vacate to get it vacated with a new hearing, and then if denied, appeal, or can he just appeal without a motion to vacate?


Asked on 5/01/06, 10:49 am

3 Answers from Attorneys
Carl Starrett Law Offices of Carl H. Starrett II

Re: Recorded Conversations

In California, recording a phone conversation without the consent of both parties is a crime. It is punishable by up to one year jail, a $5000 fine or both. I doubt a small claims judge would allow the taped conversation into evidence under those circumstances. Please review Penal Code Section 637.

I also concur with Mr. Cohen's comments on the procedures for a defendent dealing with a default judgment.

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Answered on 5/01/06, 12:44 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Recorded Conversations

Penal Code section 637 outlaws the disclosure of the contents of a confidential telephone call by someone who is not a party to the call. Under this section, it would not be unlawful for a party to the conversation to disclose its contents. We do that all the time, for example, getting off the phone and calling out to other family members, "That was Uncle Charlie, he says Aunt Emma is getting out of the hospital today!"

But, see also Penal Code section 632, which outlaws making the recording in the first place. This statute (PC 632) applies to a party to the call as well as third parties. So, I think 632 is probably the governing law. Note also PC 631, which forbids wiretapping.

Note that a "reasonable expectation of privacy" is a requirement for violation of 632 or 637. The little warning message "This call may be monitored or recorded for training (or quality control) purposes" takes away the caller's expectation of privacy and legalizes whatever practice is disclosed.

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Answered on 5/01/06, 1:03 pm
Robert F. Cohen Law Office of Robert F. Cohen

Re: Recorded Conversations

It is a crime to record a conversation without the other person's knowledge, unless there is no expectation of privacy. If the defendant did not appear, she must move to vacate default judgment and, upon losing in small claims court on the merits, may then appeal, or appeal denial of the motion to vacate. See Cal. Code of Civil Procedure section 116.710.

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Answered on 5/01/06, 11:06 am


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