Hello everybody. Occasionally landlords want to tape record or otherwise electronically record (collectively “record”) conversations they have with their tenants. My column this month will address whether such recordings are legal or illegal under California law.
Let’s first start with some True/False questions.
True or False:
1. It is never legal for a landlord to record a tenant’s communications with the landlord.
2. It is always legal for a landlord to record a tenant’s communications with the landlord.
3. It is only legal for a landlord to record a tenant’s communications with the landlord if the tenant expressly consents to the recording.
4. If the tenant objects to a recording, it is nevertheless legal for a landlord to record a tenant’s communications so long as the landlord advises the tenant in advance that the landlord will record it.
5. It is legal for a landlord to record a tenant’s communications with the landlord, whether or not the tenant knows he is being recorded, if the communications can be easily overheard by others who are not parties to the conversation, such as in an elevator.
6. A landlord can legally record a tenant’s communications with the landlord without the tenant’s knowledge or consent if the landlord reasonably believes that the communication will provide evidence that the tenant intends to extort money from the landlord or kidnap his children.
7. It is always legal for a tenant to record a landlord’s communications with the tenant if the tenant will need that recording to defend an unlawful detainer action in court.
The General Rules
Whether those seven statements are true or false is determined by whether the communications were or were not “confidential.” The California Penal Code makes it a crime punishable by a fine of up to $2,500.00 and imprisonment in state prison for one year for the unlawful recording of confidential communications. The statute provides: “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 … by means of … a telephone or other device is guilty of a crime.” (Penal Code Section 632(a))
Thus, if the conversation is “confidential” then the electronic recording of it, whether by a tape recorder, a digital recorder, a microphone which has recording capabilities, or similar devices is illegal.
The expression “confidential communication” is defined as “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 the communication made in a public gathering … or in any circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Penal Code Section 632(c))
Thus, in a face to face meeting between the landlord and tenant in the presence of a group of people who are likely to be able to overhear the conversation, the tenant’s discussion does not fall within the definition of “confidential.” That is because others in the group may hear it. Accordingly, the landlord can lawfully record that conversation. Examples would be discussions held in elevators and at the front desk of an apartment building lobby where others are nearby.
Another instance where recording is lawful is where the landlord advises the tenant that the landlord is going to record the conversation. Once the landlord so notifies the tenant, the legal right to record the conversation exists regardless of whether the communication is face to face or by telephone.
Readers may have noticed that the first sentence of Penal Code Section 632(a), as quoted above, provides that the intentional recording of a conversation “without the consent of all parties to a confidential communication” is unlawful, and therefore might interpret that to mean that tenant must then expressly consent when the landlord advises the tenant that the conversation will be recorded.
The California Supreme Court addressed that very issue in Kearney v. Salomon Smith Barney (39 Cal.4th 95). There, the high court held that if the person (i.e., assume a tenant) is advised that the conversation is being recorded, the discussion does not fall within the definition of a “confidential” communication, and therefore does not require the express consent of the tenant.
To justify its decision the Supreme Court explained that the statute only prohibits a party from “secretly or surreptitiously” recording the conversation without first informing all parties to the conversation that it is being recorded.
The court then observed that if, after being so advised, the other party does not wish to participate in the conversation, he or she may simply decline to continue the communication.
The California Supreme Court also held in the Kearney case that 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 statute when recording the conversation. That is why so many companies now have a recording at the beginning of any call made to it by a customer that: “This call may be monitored or recorded for quality assurance.” “Monitored” means that others at the company may be eavesdropping on the discussion. “Recorded” means that it will be electronically recorded.
Another type of lawful recordings are voicemail messages. If a tenant telephones a landlord but the landlord’s voicemail picks up, the recorded message that the tenant then leaves would not be a “confidential” communication. That is because the definition of a confidential communication does not include any conversation which the speaker expects will be recorded, as is the case when a person leaves a voicemail.
As defined, a confidential communication between two parties would only be confidential if the party not recording the discussion reasonably expects that the communication would not be overheard or recorded by others. Thus, if two people are speaking to one another at one end of a football field and a third party stands at the other end with a sound device that can overhear and record the conversation, that recording would violate law as the speakers would not reasonably expect that they would be overheard by someone 100 yards away.
AOA members who are also attorneys may wish to review Rojas v. HSBC Card Services which is the most recent case decided by the California Court of Appeal pertaining to the recording of confidential communications. That decision was published on February 9, 2018 by the Fourth Appellate District.
Exceptions to the Rule
There are exceptions to the prohibition of recording confidential communications. One exception occurs when the recording party has reason to believe that the confidential communication will provide evidence relative to the commission by the other party of extortion, kidnapping, bribery, or any violent felony against the individual. (Penal Code Section 633.5)
Another and frequently occurring exception is the recordation of such conversations by law enforcement, such as police officers, the California Highway Patrol, sheriffs, district attorneys or anyone acting pursuant to the direction of such law enforcement officers. (Penal Code Section 633)
Closely related to prohibited recordings is “eavesdropping” on a confidential conversation even if it is not recorded. Eavesdropping without consent (express or implied) is prohibited regardless of whether the person speaking expects that the party who is listening may later reveal the conversation to a third party.
Thus, if a landlord who is talking on the telephone to his tenant pulls the phone away from his ear so that the landlord’s friend, as a “witness” to the conversation, can hear what the tenant is saying, or the friend picks up an extension telephone receiver to listen, that eavesdropping is prohibited and carries with it the same potential criminal sanctions as recording the communication.
Of course, the law is reciprocal such that the tenant cannot allow a third person on his end to listen in on a telephone discussion the tenant has with landlord.
As noted previously, not only is recording a confidential communication a crime (as is eavesdropping) and carries a potential fine of up to $2,500 plus incarceration, but parties whose rights are violated may recover from the violator, in a civil action, the greater of $5,000 or three times the actual damages for each such violation. (Penal Code Section 637.2)
In general, electronic recording of a confidential communication between a landlord and tenant, or for that matter, any two parties, is unlawful under California law. The most common exception is where the party being recorded has no reasonable expectation of privacy, such as where other persons are around who can easily overhear the conversation.
The landlord may also record a tenant’s conversation, even if the tenant objects, if the landlord advises the tenant in advance that the conversation will be recorded.
The laws restricting recordings by a landlord are equally applicable to a tenant who wants to record a conversation he is having with the landlord.
Generally speaking, a recorded confidential communication cannot be offered in court as evidence against the recorded party unless the party that was recorded either knew that the recording was taking place (in which event it would not be “confidential” as defined), or that the conversation could be overheard by others in the immediate vicinity.
The answers to the True/False questions are as follows:
1: False; 2: False; 3: False; 4: True; 5: True; 6: True; 7: False.
Dale Alberstone is a prominent litigation and transactional real estate attorney who has specialized in real property law for the past 40 years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.
The foregoing article was authored March 2018. It is intended as a general overview of California law and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Questions of a general nature are warmly invited. Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 1900 Avenue of the Stars, Suite 650, Los Angeles, California 90067. Phone: (310) 277-7300.