1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7

NORTHERN DISTRICT OF CALIFORNIA

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10 CASEY TROYER, individually and behalf of all others similarly situated, 11 No. C 20-06065 WHA Plaintiff, 12

v.

13 ORDER GRANTING DEFENDANTS’ THE YERBA MATE CO., LLP and MOTION TO DISMISS 14 GUAYAKI SUSTAINABLE RAINFOREST

PRODUCTS, INC.,

15 Defendants. 16

17 Plaintiff Casey Troyer, a former delivery driver for defendants, brings this putative class 18 action alleging claims under various sections of California’s Labor Code, California’s Unfair 19 Competition Law, and Section 632 of California’s Penal Code (Dkt. No. 20). Defendants 20 move to dismiss plaintiff’s Section 632 claim for failure to state a claim, or in the alternative to 21 strike portions of the complaint (Dkt. No. 24). To the extent stated herein, defendants’ motion 22 to dismiss is GRANTED. 23 Section 632 prohibits a person or entity from “intentionally and without the consent of all 24 parties to a confidential communication, us[ing] an electronic amplifying or recording device 25 to eavesdrop upon or record the confidential communication . . .” Cal. Pen. Code § 632(a). A 26 “confidential communication” is defined to “include[] any communication carried on in 27 circumstances as may reasonably indicate that any party to the communication desires it to be 1 confined to the parties thereto, but excludes a communication made in a public gathering . . ., 2 or in any other circumstance in which the parties to the communication may reasonably expect 3 that the communication may be overheard or recorded.” Cal. Pen. Code § 632(c). 4 “A communication is ‘confidential’ under this definition if a party to the conversation 5 had an objectively reasonable expectation that the conversation was not being overheard or 6 recorded.” Kight v. CashCall, Inc., 200 Cal.App.4th 1377, 1396 (2011) (italics in original) 7 (citing Flanagan v. Flanagan, 27 Cal.4th 766, 768 (2002)). 8 As relevant here, the complaint alleges that (Dkt. No. 20 at ¶¶ 54–56) (emphasis added):

9 Defendants employed and/or caused to be employed certain surveillance and recording equipment at the workplace without the 10 knowledge or consent of employees.

11 [A]ll these devices were maintained and utilized to listen in on and record employee conversations, including those confidential in 12 nature. Specifically, Plaintiff alleges that Defendants recorded Plaintiff and the Class and Subclasses by audio and video 13 surveillance in the warehouse without the knowledge and/or consent of the employees, and Defendants thereby recorded 14 conversations that Plaintiff and the Class and Subclasses did not intend to be overheard by Defendants. Plaintiff asserts he and the 15 Class and Subclasses had a reasonable expectation in privacy in that they did not know and could not readily determine the 16 conversations were being overheard or recorded by Defendants, and the conversations were not held in the proximity of 17 Defendants. Specifically, Plaintiff is informed and believes and thereupon alleges there is at least one device mounted 12-14’ 18 above floor level, that it was placed at the direction of senior management, that it records both video and audio, that the 19 presence of a listening device (i.e., microphone) is not reasonably apparent from ground level, that the listening device 20 does record conversations, that there are no signs informing of the presence of any listening device and that the recordings are of 21 quality to understand conversations in the workplace (for example, discussions about the terms and conditions of employment). 22

Defendants, knowing that this conduct was unlawful and a 23 violation of Plaintiff and the members of the Class’ right to privacy and a violation of California Penal Code § 630, et seq., did intrude 24 on Plaintiff and the members of the Class’ privacy by knowingly and/or negligently and/or intentionally engaging in the 25 aforementioned recording/eavesdropping activities. 26 Based on these allegations, plaintiff argues that it has stated a plausible claim for relief 27 under Section 632. Not so. As defendants contend, the complaint fails to plead facts plausibly 1 facts explaining the circumstances of a single confidential conversation plaintiff had that 2 defendants may have recorded. At best, the complaint alleges facts that could — though 3 unlikely as currently pled — support a finding that had any confidential conversation occurred, 4 plaintiff’s expectation that that conversation was not being recorded was objectively 5 reasonable in that he was unaware that the visible video recording device located twelve feet 6 above the ground of the warehouse also recorded audio. It does not follow, however, that any 7 confidential conversation occurred. At bottom, plaintiff invites this order to speculate that 8 confidential communication must have occurred. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 9 555 (2007) (“Factual allegations must be enough to raise a right to relief above the speculative 10 level”). Plaintiff’s unadorned allegation that defendants recorded “employee conversations, 11 including those confidential in nature” (Dkt. No. 20 ¶ 55), is conclusory and a mere “formulaic 12 recitation” of the confidentiality element of Section 632. Twombly, 550 U.S. at 555. 13 In short, the complaint does not allege facts regarding any particular communication or 14 conversation, let alone facts surrounding the attendant circumstances of any such 15 communications, which would allow this order to make any conclusions regarding 16 confidentiality. As such, plaintiff has failed to plead facts nudging his claim “from 17 conceivable to plausible.” Twombly, 550 U.S. at 570. Given this threshold deficiency, this 18 order does not reach defendants’ argument regarding whether or not plaintiff has sufficiently 19 alleged intentionality under Section 632. 20 For the foregoing reason, defendants’ motion to dismiss plaintiff’s Section 632 claim is 21 GRANTED. Plaintiff is invited to move for leave to amend his complaint BY DECEMBER 22, 22 2020, AT NOON. Plaintiff must plead his best case. Its motion should affirmatively 23 demonstrate how the proposed amended complaint corrects the deficiencies identified in this 24 order, as well as any other deficiencies raised in defendants’ motion but not addressed herein. 25 The motion should be accompanied by a redlined copy of the amended complaint. 26 IT IS SO ORDERED. 27 Dated: December 4, 2020. 1 = ] |

LLIAM ALSUP

2 UNITED STATES DISTRICT JUDGE 3 4 5 6 7 8 9 10 1] 3 12

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