Secretly recorded service phone calls OK, judge says

A Los Angeles County Superior Court judge last week dismissed a class-action lawsuit against Western Dental Services Inc. for alleged violation of California's Invasion of Privacy Act.

The putative class representatives alleged the company initiated phone conversations with them about their dental services accounts and recorded the conversations without their knowledge.

The complaint claimed the conduct violated state laws prohibiting the use of an "electronic amplifying or recording device" to eavesdrop or record "confidential communications" without the parties' consent.  The Legislature extended the protections to wireless communications in 1992.

But a Western Dental attorney, Connie Y. Tcheng of Doll Amir & Eley LLP, argued that lawmakers intended the privacy act to address concerns about "clandestine wiretapping" and "electronic eavesdropping."  The statute's legislative history, she claimed, shows a clear intent to exempt the common business practice of "service-observing" — recording calls for the purpose of ensuring employee proficiency.

The decision could be a bad sign for plaintiffs in similar lawsuits.  The class action is one of a long list of suits that recently have been filed throughout the state.

Tcheng also contended the statute leaves the regulation of such calls to the California Public Utility Commission.

In the Dec. 31 ruling, Superior Court Judge Daniel J. Buckley sided with Western Dental, concluding in a short dismissal order that parts "of legislative history indicate that all service-observing calls are deemed not to be considered 'private,' and are not within the scope of the statutes sued upon here."

Daniel J. Warshaw of Pearson, Simon, Warshaw & Penny LLP, who represented the plaintiffs, could not be reached for comment.  Turner v. Western Dental Services Inc., BC478188 (LA Super. Ct., filed June 20, 2012).

The decision could be a bad sign for plaintiffs in similar lawsuits.  The class action is one of a long list of suits that recently have been filed throughout the state.  If successful, payoffs in the cases could be huge — the privacy act's lucrative civil penalty provision authorizes an award of $5,000 for every violation.

The Daily Journal has identified approximately 80 cases pending in California courts that allege violations of the privacy act, most of them class actions filed within the last three years.

blake_edwards@dailyjournal.com