Ulrich

Harold Rogers appeals from a judgment fcr the defense, rendered pursuant to Code of Civil Procedure section 631.8, in this action for damages for recordation of a telephone conversation. Appellant sought damages from the City of San Jose and from Robert Ulrich because Ulrich, a city employee, had tape recorded, and allowed other persons to hear, portions of a telephone conversation betwéen Rogers and Ulrich. In appellant’s first cause of action it was alleged that Ulrich had wrongfully recorded and disseminated the conversation, causing general damages in the amount of $50,000. It was also alleged that a claim therefor had been presented to defendant city and rejected. A second cause of action restated all the factual allegations of the first, and set out a claim that because the conversation had been recorded without Rogers’ knowledge the incident amounted to wiretapping as defined by Penal Code section 631; a statutory penalty in the amount of $3,000 was sought under Penal Code section 637.2.

Ulrich moved for summary judgment; the court granted the motion as to the first cause of action but denied it as to the second. The city also moved for summary judgment; the court…