In Faulkner v. ADT Sec. Services, Inc., — F.3d —-, 2013 WL 174368 (9th Cir. 2013), the Court of Appeals for the Ninth Circuit found that Plaintiff failed to properly plead an expectation of privacy. On March 4, 2010, John Faulkner contacted his security provider, ADT, by telephone to dispute a charge assessed by ADT. Faulkner was transferred to ADT’s technical line, where, he alleges, he began hearing periodic “beeping” sounds during the conversation. Upon inquiring about the sounds, Faulkner was informed that his telephone conversation was being recorded by ADT. Faulkner told the representative that he had not previously been informed that the conversation was being recorded and that he did not wish to continue the conversation if the recording continued. The representative advised Faulkner to contact the customer service line to discuss the issue. Faulkner called on the customer service line, where he asked to speak with a representative on a line that was not being recorded. That representative informed Faulkner that it was the company’s policy to record telephone calls and ad-vised Faulkner to end the call if he did not wish to be recorded, which he did. Based on these conversations, Faulkner filed a claim alleging a violation of Section 632 of California’s invasion of privacy law, Cal.Penal Code § 632, in the Superior Court of California, County of San Mateo, on February 3, 2011.
California’s Invasion of Privacy Act provides, in relevant part, that “[e]very person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device … records the confidential communication” violates the statute. Cal.Penal Code § 632(a). The statute also provides, in Section 632(c), that “[t]he term ‘confidential communication’ includes 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….” Id. § 632(c). The statute does not reach a communication made “in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” Id. ¶ . . . Faulkner’s complaint contains two allegations concerning the confidentiality of his communications with ADT. First, he alleges that he called ADT to “dispute a charge.” Pl.’s Compl. ¶ 10. Second, he states that his conversation was confidential because it was “carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined thereto.” Id. ¶ 27, 250 Cal.Rptr. 819. The latter of these allegations is no more than a “[t]hreadbare recital[ ]” of the language of Section 632, precisely the kind that Iqbal prohibits. Iqbal, 556 U.S. at 678. Under Iqbal, such bald legal conclusions are not entitled to be accepted as true and thus “do not suffice” to prevail over a motion to dismiss. Id. ¶ Nor is the former allegation, that Faulkner called to dispute a charge, sufficient to lead to the plausible inference that he had an objectively reasonable expectation of confidentiality. Although circumstances may arise under which the nature of the relationship or the character of the communications between a customer and a home security company could plausibly constitute a confidential communication under the California statute, here, the detail that Faulkner alleges is merely consistent with such a conclusion. FN** In other words, too little is asserted in the complaint about the particular relationship between the parties, and the particular circumstances of the call, to lead to the plausible conclusion that an objectively reasonable expectation of confidentiality would have attended such a communication. Faulkner has therefore failed to “nudge[ ]” his claim “from conceivable to plausi-ble.” Id. at 680 (internal citations and quotation marks omitted). His complaint cannot survive ADT’s Rule 12(b)(6) motion.
The Ninth Circuit also discussed in a footnote whether a billing dispute with a security company could ever constitute confidential communications.
ADT argues that dismissal was properly granted because a consumer call to a home security company can never constitute a confidential communication within the meaning of California Penal Code § 632. We disagree. There is nothing inherently non-confidential about a billing dispute with a home security company. For example, a caller might be asked to verify his identity by confirming his social security number or his unlisted telephone number, or to disclose other private or potentially private information. If adequately pled, such facts might well support a finding of confidentiality.