California Demurrer — Privacy & CIPA

Under Penal Code § 632, a "confidential communication" requires that the party had a reasonable expectation the communication would not be overheard. Courts have consistently held that whether a particular communication was made in circumstances giving rise to such an expectation is a question of fact that cannot be resolved on demurrer.

If you're the moving party: The demurrer faces an uphill climb on this element. To succeed, show that the complaint's own allegations establish as a matter of law that no reasonable expectation of privacy existed — e.g., the communication occurred in an openly public space with no effort at concealment. Even then, courts are reluctant to take fact-intensive privacy questions from the jury at the pleading stage.

If you're the opposing party: Allege facts supporting the reasonable expectation: the private nature of the location, the plaintiff's conduct signaling an intent for privacy, and the circumstances that would cause a reasonable person to believe the communication was not being overheard or recorded. Garcia is a strong illustration — gravesite visits are quintessentially private, and no factual predicate for consent or public nature existed.

Primary source: Penal Code § 632(c); Flanagan v. Flanagan (2002) 27 Cal.4th 766, 772-776.

Some defendants argue that CIPA or invasion-of-privacy torts protect only the privacy of living persons, such that conduct directed at grave sites or involving communications about deceased individuals is outside the statute. California courts have rejected this as a basis for demurrer where the living plaintiff has an independent privacy interest in the conduct.

If you're the moving party: This argument has a poor track record at the pleading stage in the surveillance context. The stronger arguments are: (1) the communication was not "confidential" as a matter of law; or (2) the defendant did not "intentionally" eavesdrop within § 632's meaning.

If you're the opposing party: Allege the plaintiff's own privacy interest specifically — not just the deceased's interest. The living-person objection collapses when the plaintiff pleads that their own communications and conduct were surveilled without their consent.

Primary source: Penal Code § 632; Garcia + Angeles Abbey Memorial Park (LA Superior, Compton Dept E, May 5, 2026) — first-impression corpus signal on this specific argument.