Case Number: EC062812    Hearing Date: November 07, 2014    Dept: NCG

TENTATIVE RULING (11/7/14)
#10
EC 062812
ATKIN v. CAPITAL ONE BANK

Motion of Defendant Captial One Bank (USA), N.A. to Reclassify Case as a Limited Civil Action and Transfer Action to the Stanley Mosk Courthouse

TENTATIVE:
The court notes that it has not considered the authority cited in the opposition, Flanagan v. Flanagan (1999) 77 Cal.App.4th 122, as that decision is no longer considered published due to the Supreme Court granting review. See CRC Rule 8.1105(e)(1). Under CRC Rule 8.1115 (a), “an opinion of a California Court of Appeal or superior court appellate division that is not certified for publication or ordered published must not be cited or relied on by a court or a party in any other action.”

Unopposed Request for Judicial Notice is granted.

Motion is DENIED. The case has not been classified in an incorrect jurisdictional classification. Based on the allegations of the pleading and the legal argument presented it is not clear that the verdict in this case would necessarily result in a verdict below this court’s jurisdictional amount. See Walker v. Superior Court (1991) 53 Cal.3d 257, 262: Maldonado v. Superior Court (1996) 45 Cal.App.4th 397, 401-402 (“[t]he trial court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount of the demand;” and “the trial court looks to the possibility of a jurisdictionally appropriate verdict, not to its probability.”).

SUMMARY OF FACTS:
Plaintiff Andrew S. Atkin alleges that from February 15, 2007 through March 31, 2012, he received one or more telephone calls from and spoke with one or more representatives from defendant Capital One, and that he was not provided notice that the telephone calls would be recorded, and never consented to having them recorded. Plaintiff alleges that the subject matter of the conversations was confidential, relating to financial matters of plaintiff, and that the recordings violated section 632 of the Penal Code, entitling plaintiff to a civil remedy of $5,000 for each violation.

ANALYSIS:
The California Supreme Court in construing when a case could be transferred to a municipal court under previous CCP § 396 held that a matter could be transferred when it would “necessarily” result in a verdict below the jurisdictional amount. Walker v. Superior Court (1991) 53 Cal.3d 257, 262. The court stated that this standard “requires a high level of certainty that a damage award will not exceed $25,000 and is not satisfied by a finding that such an award is merely ‘unlikely’ or ‘not probable’.” Walker, at 269.

The Second District in Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266 set forth the standard to be applied when considering reclassification of cases, noting,
“The trial court may believe it highly unlikely that plaintiff will recover the amount demanded, but this is not enough to defeat jurisdiction, unless it appears to a legal certainty that plaintiff cannot recover the amount of the demand.”
Ytuarte, at 277.

Here, defendant argues that the statute under which the action is brought, part of the California Invasion of Privacy Act, permits recovery of a statutory penalty of only $5,000 for this action, not $5,000 per violation as alleged in the complaint. Penal Code § 632.

Under Penal Code § 637.7, there is a private right of action for violation of California’s Invasion of Privacy Act:
“(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.”

Defendant argues that this statutory provision has not been interpreted by the courts, but that the language of the statute, the interpretation of similar Penal Code statutes, and the decision of a trial court judge in Ventura County support a reading of the statute as permitting a total recovery of $5,000, which is below the statutory limit.

This argument itself appears to support the denial of the motion, as it would be most prudent to permit the case to proceed as alleged in the event that while the action is pending there is some decisional law concerning the effect of this statute, and if that law is that plaintiff can recover $5,000 per violation, this case may have been improperly proceeding as a limited matter.

In addition, as the opposition argues, the Second District in interpreting the statute has stated, albeit in dicta, that a plaintiff “may recover up to $5,000 for each incident.” Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 167.
Defendant also argues that the pleading does not affirmatively plead that at least five violations occurred. However, this is the type of information which plaintiff will need to explore through discovery, as defendant would be in the best position to know which conversations were recorded. The motion therefore appears, at a minimum, to be premature, and is therefore denied.