CIPA SUNDAY: California Court Rules No Personal Jurisdiction Where Out of State Defendant’s Conduct Was Not Expressly Aimed at Forum State


Hope ya’ll had a wonderful weekend. Here is your CIPA Sunday evening reading.

In Moledina v. Marriott Int’l, Inc., No. 222CV03059SPGJPR, 2022 WL 16630276 (C.D. Cal. Oct. 17, 2022), Plaintiff accused Marriott of recording customer phone calls without proper disclosure, in violation of the California Invasion of Privacy Act, Cal. Pen. Code §637.2 (CIPA).

Marriott filed a motion for judgement on the pleadings arguing lack of personal jurisdiction. The Court ultimately ruled that in Marriott’s favor due to the lack of “expressly aimed” conduct at the forum state of California. This was because entire factual basis of this case was that the Plaintiff made a single phone call to the Dallas hotel which the Court said falls under “precisely the sort of ‘unilateral activity’ that cannot satisfy the required contacts with the forum State.”

This lawsuit came about after Plaintiff (Moledina) called a hotel in Dallas owned by Marriott to make a reservation. After being transferred to a live agent in Austin, TX, via a telecommunications server in Utah, Moledina inquired about whether the phone call was being recorded since the typical “this call is being recorded…” language was not utilized. The live agent answered in the affirmative. He stated in his complaint that the purpose of asking such was because he did not want “to risk denial of a price-watch.”

To have personal jurisdiction over a non-resident such as Marriott, there must be minimum contacts with the forum state. This is based on either general or specific jurisdiction. Since it couldn’t be said that Marriott is “at home” in the forum state of California (i.e., general jurisdiction), the inquiry fell to specific jurisdiction.

In making its determination regarding specific jurisdiction, the Court here used the Ninth Circuit’s three-part test:

“1) the nonresident defendant must purposefully direct its activities at, or consummate some transaction with, the forum state or a resident thereof; or perform some act by which it purposefully avails itself of the privilege of conducting activities in the forum; 2) the plaintiff’s claim must be one that arises out of or relates to the defendant’s forum-related activities; and 3) the exercise of jurisdiction must be reasonable.”

To satisfy the purposeful direction prong, the defendant allegedly must have:

1) “committed an intentional act:”

2) that act must be “expressly aimed at the forum state;”

3) the act must have “caused harm that the defendant knows is likely suffered in the forum state.”

As previously mentioned, Moledina failed to show Marriott “expressly aimed” the conduct at California.

The Court went even further here to deny Moledina an opportunity to conduct jurisdictional discovery calling it a “fruitless request” because Moledina failed to show so much as “at least a ‘colorable basis’ that jurisdiction exists.”

Most interestingly, however, is the Court also refused to entertain a transfer of venue rather than an outright dismissal because he failed to make prima facie showing of a violation of CIPA.

The Court reasoned that implied consent is enough to equate to the requisite consent needed here, and awareness of the call being recorded may be enough, as it was here, to establish implicit consent.

Specifically, Moledina wanted to call to be recorded for the purposes of ensuring he received the price match guarantee. Since he expected the call to be recorded, the very act of making the call gave implicit consent.

Now, the warning at the outset (i.e., “this call is being recorded…”) ensures CIPA compliance, but just because it does not exist does not mean there is no consent.

TAKEAWAY: A California resident cannot just set these suits up by calling out of state businesses who record their calls but do not give the typical “this call is being recorded…,” and when a caller suspects or is actually aware a call is being recorded, consent exists and a CIPA violation does not.

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  1. Could they refile this suit in Texas? I saw a suit where a plaintiff successfully litigated a CIPA cause of action in a lawsuit filed in an Illinois court (CS Wang & Assoc. v. Wells Fargo Bank).

  2. Surprising that the court found Marriott not “at home” in California, given that there are hundreds of Marriott hotels in California.

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