Troyer v. The Yerba Mate Co., LLP

Background

Casey Troyer, a former delivery driver for the defendants, brought a proposed class action asserting claims under various sections of California’s Labor Code, California’s Unfair Competition Law, and California Penal Code Section 632. The Section 632 claim concerned alleged audio and video surveillance in a warehouse. Troyer alleged that the defendants recorded employee conversations without employees’ knowledge or consent, including conversations that employees did not intend to be overheard.

The complaint alleged that at least one device was mounted 12 to 14 feet above the warehouse floor, recorded both video and audio, and had a microphone whose presence was not reasonably apparent from the ground. It also alleged that there were no signs informing employees about the listening device and that the recordings were clear enough to understand workplace conversations.

Court’s Analysis

California Penal Code Section 632 prohibits intentionally recording or eavesdropping on a confidential communication without the consent of all parties. A communication is confidential when a person had an objectively reasonable expectation that it was not being overheard or recorded.

Defendants moved to dismiss the Section 632 claim for failure to state a claim, or alternatively to strike parts of the complaint. The court held that the complaint did not provide facts about a single specific confidential conversation that defendants may have recorded. The allegation that defendants recorded “employee conversations, including those confidential in nature” was conclusory and merely repeated the confidentiality requirement without supporting facts.

The court explained that allegations about employees’ lack of knowledge of the audio-recording capability might support an objectively reasonable expectation that a conversation was not recorded, but they did not establish that any confidential conversation actually occurred. The court therefore found that Troyer had not pleaded facts moving the claim from merely possible to plausible. Because of this pleading deficiency, the court did not reach defendants’ argument about whether Troyer adequately alleged intentional conduct.

Disposition

The court granted defendants’ motion to dismiss Troyer’s Section 632 claim. The order did not state that the dismissal was with or without prejudice. Troyer was invited to move for permission to amend the complaint by December 22, 2020, and any such motion had to explain how the amended complaint would correct the identified deficiencies and include a redlined copy of the proposed amended complaint.