Monzon v. Atlantic Credit & Finance CA2/8

Filed 9/1/21 Monzon v. Atlantic Credit & Finance CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CARLOS MONZON, B302501
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV11533)
v.
ATLANTIC CREDIT & FINANCE,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Rafael A. Ongkeko, Judge. Reversed.
Law Offices of Todd M. Friedman, Todd M. Friedman,
Adrian R. Bacon, and Thomas E. Wheeler for Plaintiff and
Appellant.
Baker McKenzie LLP, Edward D. Totino and Benjamin W.
Turner for Defendant and Respondent.
_____________________________
The trial court sustained a demurrer to appellant Carlos
Monzon’s complaint based on an interpretation of Penal Code
section 632.71 that has since been rejected by the California
Supreme Court. Accordingly, we reverse.
FACTUAL AND PROCEDURAL BACKGROUND
Monzon filed a putative class action against Atlantic Credit
& Finance, Inc. (Atlantic Credit) for allegedly recording telephone
calls unlawfully. In his operative complaint, Monzon alleged that
Atlantic Credit contacted him via his cellular telephone in an
attempt to collect a debt owed by his mother. Atlantic Credit
recorded the calls without informing Monzon or obtaining his
consent.
Monzon asserted a single cause of action for violation of
section 632.7. Under section 632.7, “[e]very person who, without
the consent of all parties to a communication, intercepts or
receives and intentionally records . . . a communication
transmitted between two cellular radio telephones, a cellular
radio telephone and a landline telephone, two cordless
telephones, a cordless telephone and a landline telephone, or a
cordless telephone and a cellular radio telephone, shall be
punished . . . .” (§ 632.7, subd. (a).)
Atlantic Credit demurred on the basis that Monzon failed
to allege facts sufficient to constitute a violation of section 632.7.
According to Atlantic Credit, such a violation requires the
defendant both (1) intercept or receive a telephone
communication without consent and (2) record the
communication without consent. Monzon, however, did not allege
1 All further undesignated statutory references are to the
Penal Code.
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Atlantic Credit intercepted or received the relevant
communications without his consent.
In opposition, Monzon argued that section 632.7 prohibits
recording a phone call without consent, regardless of whether the
recording is done by a party to the conversation or an interloper.
In other words, a defendant who records a phone call without
consent violates section 632.7, even if the defendant did not
intercept or receive the communication without consent.
The trial court agreed with Atlantic Credit’s interpretation
of section 632.7 and, on that basis, sustained its demurrer
without leave to amend. Monzon timely appealed.
DISCUSSION
On appeal, Monzon argues the trial court erroneously
concluded section 632.7 applies only to nonparties to a phone call.
Atlantic Credit responds that the court’s interpretation is
consistent with the text and legislative history of section 632.7,
and applying the statute to parties would lead to absurd results.
It also argues the rule of lenity counsels against any alternative
interpretation.
While this appeal was pending, the California Supreme
Court decided Smith v. LoanMe, Inc. (2021) 11 Cal.5th 183(Smith), which holds section 632.7 forbids parties and nonparties
to a phone call transmitted to or from a cellular or cordless
telephone from recording the conversation without the consent of
the other party or parties. (Smith, at pp. 871–880.) The
Supreme Court, in other words, rejected Atlantic Credit and the
trial court’s interpretation of section 632.7. The high court also
explicitly rejected many of the arguments Atlantic Credit asserts
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in its respondent’s brief.2 (See Smith, at pp. 874–878 [rejecting
textual and legislative history arguments], pp. 879–880 [rejecting
absurd results argument], pp. 880–881 [rejecting rule of lenity
argument].)
Smith is directly on point and determinative of this appeal.
Monzon’s operative complaint alleges that Atlantic Credit
received communications he made using a cellular telephone,
and, without his consent, recorded them. Under Smith, such
allegations are sufficient to constitute a violation of section 632.7.
As such, the trial court erred in sustaining Atlantic Credit’s
demurrer.
DISPOSITION
The judgment is reversed. Monzon is awarded his costs on
appeal.
OHTA, J. *
We Concur:
GRIMES, Acting P. J. STRATTON, J.
2 Atlantic Credit filed an amicus curiae brief in Smith
advancing many of the same arguments it makes in its
respondent’s brief.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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