California Calling: Am I Breaking The Law?

In California, it is illegal to record a phone call without the consent of the other person. California Penal Code Section 632 makes it a crime to intentionally and without the consent of all parties to a confidential communication use a recording device to record a confidential conversation carried on over the phone or through any other device, such as a laptop computer. Additionally, making repeated harassing phone calls is a violation of Penal Code 653m and can result in criminal charges. However, an arrested person has the right to make at least three completed telephone calls, free of charge, within the local calling area.

Harassment and stalking laws

California's civil harassment law, California Code of Civil Procedure section 527.6 CCP, defines harassment as any of the following:

• Unlawful violence, such as assault, battery, or stalking.
• A credible threat of violence.
• A course of conduct that is knowing and willful, directed at a specific person, seriously alarms, annoys, or harasses that person, serves no legitimate purpose, would cause a reasonable person substantial emotional distress, and actually does cause substantial emotional distress to the person.

A course of conduct is a series or pattern of acts over a period of time that shows an intent to harass someone. The period of time can be short or long. Those acts can include following or stalking someone, making harassing phone calls, or sending harassing messages via email, text, or social media. Constitutionally protected activities, such as political speech, are not included.

California's stalking law, Penal Code 646.9(a), makes it illegal to follow, harass, or threaten another person. The threat must put the alleged victim in reasonable fear for their safety or the safety of their family. If convicted of felony stalking, one may face up to three years in state prison, a fine of up to $10,000, or both.

To be convicted of stalking under CPC §646.9(a), the prosecution must prove beyond a reasonable doubt that the defendant:

• Willfully and maliciously harassed or repeatedly followed another person.
• Made a credible threat with the intent of placing the person in reasonable fear for their safety or the safety of their immediate family.

To constitute harassment under stalking law, there must be a course of conduct with two or more acts that indicate a continuous purpose. The course of conduct must further no legitimate purpose.

In addition to civil and criminal penalties for harassment, victims can seek a temporary restraining order (TRO) to demand that the harasser stop the harassing conduct. If the harasser violates the TRO, they may be charged with the crime of violating a restraining order (Penal Code 273.6 PC).

Recording laws

California's "eavesdropping" law prohibits recording a phone call without the consent of all parties. This is outlined in California Penal Code Section 632, which makes it a crime to "intentionally and without the consent of all parties to a confidential communication" use a recording device to record a confidential conversation carried out over the phone or another device.

Most private phone calls between two or more parties would constitute a "confidential communication" as defined by Penal Code Section 632(c). This includes any communication that may reasonably indicate that any party to the communication desires it to be confined to the parties involved. For example, if someone on the call was in their home, office, or car during the call, it would likely indicate that they wanted the communication to be confined to the people on the call.

However, there are exceptions to what constitutes a "confidential communication". These include:

• A communication made in a public gathering.
• A communication made in any legislative, judicial, executive, or administrative proceeding open to the public.
• 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.

Recording a phone call without the consent of all other participants in violation of Section 632 is punishable by up to one year in county jail or California State Prison and/or a fine of up to $2,500. Second and subsequent convictions can result in the same jail or prison term, but the fine could be as high as $10,000. Additionally, those recorded without their consent can sue for civil damages, specifically up to three times the amount of damages suffered or $5,000, whichever is greater.

Scams and fraud

• Medical and prescription scams: The Federal Trade Commission reported that in 2023, the most common scam calls were related to medical needs and prescriptions.
• Debt reduction and utility scams: These scams often involve threatening to cancel utilities if you don't provide personal information or payment.
• Bank fraud warnings: Scammers send bogus text messages warning about bank fraud to try and trick you into giving up your personal information.
• IRS scams: Scammers may pose as the IRS to request personal or financial information. The IRS will never initiate contact with taxpayers via email, text, or social media to request this information.
• Warranty scams: This can include scams related to automobile warranties.
• Internet fraud: This is a growing problem in California and can take many forms, including phishing emails, online romance scams, fake ticket offers, and tech support scams. Internet fraud can result in state or federal charges, depending on the case.
• Insurance fraud: This includes health insurance fraud, where patients or healthcare professionals bill for services not provided or receive "kickbacks" from drug manufacturers. It also includes automobile insurance fraud, where people stage collisions or inflate damage claims.
• Unemployment insurance fraud: This involves attempting to alter unemployment benefits through false statements, such as providing false information about job loss or an employee's termination.
• Welfare fraud: This occurs when individuals enroll in or increase welfare benefits to which they are not entitled.
• Workers' compensation fraud: This involves filing false claims with California's workers' compensation insurance program, such as claiming a non-work-related injury as work-related.
• Real estate fraud: This includes foreclosure fraud, where people pose as "foreclosure consultants" to help stop or delay a foreclosure, only to commit fraudulent acts. It also includes property flipping, where people present fraudulent appraisals or loan documents to make a sale.
• Credit card fraud: This involves any fraudulent transaction made with a credit or debit card or account information.
• Securities fraud: This involves willfully altering investor decisions using falsified information, such as overstating a company's value or embezzling from shareholders.
• Mail fraud: This involves any fraudulent scheme that uses the postal system, such as mailing a forged check or advertising fraudulent services.
• Handicapped parking fraud: This involves the illegal use or lending of handicapped parking placards.
• Misleading solicitations: These scams involve sending misleading mailings, websites, or messages that appear to be from California government agencies and threaten business owners with fines if they don't file required forms.

If you believe you have been the victim of a scam or fraud, you can report it to the California Attorney General, the FTC, or the appropriate government agency that regulates the business in question. You may also wish to consult with an attorney to discuss your legal options.

On-call pay

California employment laws can be quite complicated, but certain rights are spelled out in a straightforward way so that workers can easily understand their rights in the workplace. One such right is "on-call pay". Unless you are working under an employment contract that specifically makes provisions for reduced on-call pay, you may be entitled to receive your regular rate of pay any time your employer requires you to be on call and available. This means that if you are under your employer's control, you must be paid at least the minimum wage, which is currently $15.50 in most parts of California but can be higher in certain localities. On-call pay must also be counted toward calculating overtime.

"On-call" or "standby" time refers to any time spent not actively working but still under your employer's control. This typically involves being tethered to a company cell phone or pager after your normal office hours. Nurses and tech support professionals are two types of workers whose jobs may require on-call shifts. It is important to understand your right to be paid for this time so that you’re not taken advantage of. Some employers may try to circumvent these laws by disguising on-call responsibilities through phrases other than “on-call” or “standby”. For example, they may emphasise the need to "be a team player" when called upon to do extra work outside of normal hours, and may even punish you if you attempt to ignore these demands. This is not acceptable, and an employment attorney can help hold such an employer accountable.

There are several factors that can be used to determine whether your employer has control over you to a sufficient extent that you need to be paid for on-call time. These include:

• Whether the employee is required to live at the work site
• Whether there are significant geographical restrictions on the employee’s free movement
• Whether the employee is called back to work at a frequency that can be considered unduly restrictive
• Whether there are restrictive time limits regarding the employee’s response to being called in
• Whether the employee has the option to easily trade on-call responsibilities with a coworker
• Whether the employee is engaged in significant personal activities during their “on-call” time, or whether the time is primarily dedicated to the employer

If you believe that your California-based employer is not correctly paying you for hours spent on call, you can file a formal complaint with the state’s Division of Labor Standards Enforcement at the Department of Industrial Relations or sue your employer directly for violating the law. Before proceeding, you should consult a qualified employment attorney who can help you understand your legal options and build a winning strategy.

Arrestee rights

If you are arrested in California, you have certain rights that you should be aware of. Here are some key arrestee rights to remember:

• Right to Know the Reason for Arrest: When you are arrested, the arresting officer must inform you of the intention, cause, and authority for your arrest, unless they have reasonable cause to believe you are committing or attempting to commit a crime.
• Right to Make Telephone Calls: In California, arrestees have the right to make at least three completed telephone calls within three hours of their arrest. One of these calls can be to an attorney of your choice, and this call should not be monitored or recorded. If you are a custodial parent, you are entitled to two additional calls to arrange care for your minor child.
• Right to an Attorney: You have the right to an attorney of your choice. If you cannot afford one, you have the right to a court-appointed lawyer.
• Right to Remain Silent: You are not obligated to answer any questions beyond providing your basic information, such as your name, address, and identification. Remember that anything you say can be used against you in court.
• Right to a Timely Arrest: In most cases, an arrest for a misdemeanor or infraction cannot be made between 10:00 PM and 6:00 AM, unless specific conditions are met.
• Right to Miranda Warning: If you are questioned while in custody, the police must inform you of your Miranda rights, which include the right to remain silent, the right to an attorney, and the right to a court-appointed lawyer if you cannot afford one.
• Right to a Speedy Trial: If you are arrested, you have the right to a speedy trial, and the process should be initiated without unnecessary delay.
• Right to Be Informed of Charges: You have the right to be informed of the charges against you and to be brought before a magistrate or judge promptly after your arrest.
• Right to Fair and Humane Treatment: You should be treated fairly and humanely while in custody. This includes the right to be free from excessive force, cruel punishment, and unreasonable searches and seizures.
• Right to Medical Attention: If you are injured or require medical attention during your arrest or detention, you have the right to receive necessary medical care.
• Right to Consult Consular Officials: If you are a foreign national, you have the right to communicate with and receive visits from consular officials of your country.

Remember that these rights are protected by the US Constitution and California state laws. If you believe your rights have been violated during an arrest, you should seek legal advice from a criminal defense attorney as soon as possible.

Frequently asked questions