Modification: Gruber v. Yelp Inc.

ERIC GRUBER,

Plaintiff and Appellant,

v.

YELP INC.,

Defendant and Respondent.

No. A155063

(City & County of San Francisco Super. Ct. No. CGC-16-554784)

California Courts of Appeal

First Appellate District

Division Three

Filed October 23, 2020

THE COURT:*

It is ordered that the opinion filed herein on October 7, 2020, be modified as follows: On page 22, at the end of the first sentence (which ends with "and not Gruber's voice, during these calls"), add as footnote 11 the following footnote, which will require renumbering of all subsequent footnotes:

¹¹ Yelp argues for the first time on appeal that extending CIPA protection to one-sided recordings of a consenting speaker would violate the "First Amendment 'right to record.' " " 'Points not raised in the trial court will not be considered on appeal. [Citation.] "Even a constitutional right must be raised at the trial level to preserve the issue on appeal [citation]." [Citation.] In civil cases, constitutional questions not raised in the trial court are considered waived. [Citation.]' (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [61 Cal.Rptr.2d 341].)" (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 853.) Of course, "application of this principle is not automatic," and exceptions are made in rare case for purely legal issues, particularly "when the enforcement of a penal statute is involved [citation], the asserted error fundamentally affects the validity of the judgment [citation], or important issues of public policy are at issue [citation]." (Hale v. Morgan (1978) 22 Cal.3d 388, 394.) However, in this case, not only did Yelp fail to raise this First Amendment right as one of its grounds for moving for summary judgment, Yelp's appellate argument on this issue consists of no more than two paragraphs at the back end of the respondent's brief. Under these circumstances, we decline to exercise our discretion to consider Yelp's unpreserved and underdeveloped constitutional challenge.

There is no change in the judgment.

Respondent's petition for rehearing is denied.

Dated: October 23, 2020

SIGGINS, PJ, P. J.

^* Jackson, J.; Siggins, P. J.; Fujisaki, J.