Burns

This case requires us to consider the definition of "confidential communication" under section 632 of California Privacy Act (Pen.Code, § 630 et seq.) [1] Because we determine the trial court incorrectly followed Coulter v. Bank of America (1994) 28 Cal.App.4th 923 , 33 Cal.Rptr.2d 766 , we reverse the judgment in favor of Charles Burns on his cause of action against Nature's Best and Timothy Groff for secretly recording a telephone conversation and remand for a new trial.

Amplicon, Inc. leases computer equipment and software to businesses, using salespersons to contact prospective customers by telephone to determine their needs and arrange leases. In 1992, Nature's Best leased computer software from a subsidiary of Amplicon. A dispute arose over the value of the leased software at the end of the lease term. In August 1995 Amplicon sued Nature's Best for breach of the lease (the Lease Case). Nature's Best cross-complained against Amplicon for unfair business practices.

Nazli Ozen was a new salesperson with Amplicon in September 1995. Unaware of Amplicon's relationship with Nature's Best, Ozen "cold called" Nature's Best and left a message with her standard sales…