Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC
| Citation | 340 F.Supp.3d 1036 |
| Decision Date | 13 September 2018 |
| Docket Number | Case No.: 16-cv-1103-WQH-WVG |
| Court | U.S. District Court — Southern District of California |
| Parties | Tiffany BRINKLEY, on Behalf of Herself and Others Similarly Situated, Plaintiff, v. MONTEREY FINANCIAL SERVICES, LLC, Defendant. |
Christina E. Wickman, Steven Allen Wickman, Wickman & Wickman, Attorneys at Law, Escondido, CA, Patrick N. Keegan, Keegan & Baker, LLP, Carlsbad, CA, for Plaintiff.
Matthew Orr, William Paul Cole, Call & Jensen APC, Newport Beach, CA, for Defendant.
The matter before the Court is the Motion to Dismiss (ECF No. 100) filed by Defendant Monterey Financial Services, LLC.
On October 15, 2013, Plaintiff Tiffany Brinkley initiated this action by filing a Complaint (ECF No. 1-3) against Monterey Financial Services, Inc. in the Superior Court of the State of California in and for the County of San Diego. On April 1, 2016, Brinkley amended the Complaint to add Monterey Financial Services, LLC as a defendant. (ECF No. 1-8 at 2). On May 6, 2016, Monterey Financial Services, Inc. and Monterey Financial Services, LLC (collectively, "Monterey") removed the matter to this court. (ECF No. 1).
On May 17, 2018, Plaintiff Tiffany Brinkley filed a First Amended Complaint (ECF No. 97) (the "FAC") against Monterey.
The FAC brings claims for violations of California Penal Code § 632, Washington Revised Code § 9.73.70.030(1)(a), California Penal Code § 632.7, and California Business and Professions Code §§ 17200 et seq. FAC at ¶¶ 38–60. The FAC seeks damages as well as injunctive relief (1) "prohibiting Defendants from [ ] overhearing, recording and listening to each and every incoming and outgoing telephone conversation with California and Washington residents without their prior consent," FAC at ¶ 60; (2) "compel[ling] Defendants to institute policies and procedures which will educate their employees and agents as to California and Washington privacy laws and assure that such employees and agents follow such privacy laws," id. ; (3) "prohibiting the future dissemination and disclosure of the recorded telephone conversations in the possession, custody and control of Defendants," id. ; and (4) "requiring Defendants to disgorge all ill-gotten gains and awarding Plaintiff and the Class full restitution of all monies wrongfully acquired by Defendants by means of such unfair and unlawful conduct," id. at 26.
On May 31, 2018, Monterey filed the Motion to Dismiss. (ECF No. 100). On June 25, 2018, Brinkley filed an Opposition to the Motion to Dismiss. (ECF No. 101). On July 2, 2018, Monterey filed a Reply in Support of the Motion to Dismiss. (ECF No. 102).
On July 30, 2018, Magistrate Judge William V. Gallo issued an Order substituting Monterey Financial Services, LLC for Monterey Financial Services, Inc. and directing the Clerk of Court to terminate Monterey Financial Services, Inc. as a party to this case. (ECF No. 104).
[F]rom October of 2011 to October of 2013, and specifically on February 14, 2013 and March 6, 2013, Plaintiff received at least one telephone call from an employee and/or an agent of Defendants and made at least one telephone call to an employee and/or an agent of Defendants.... During each of these two aforementioned telephone conversations, ... Plaintiff shared her personal information as she believed that each of these calls was confidential in nature and that such calls were not being monitored or recorded. At no time during either of her two aforementioned telephone conversations with employees and/or agents of Defendants was Plaintiff told that her telephone conversations would be or may be recorded or monitored, and at no time during either of her two aforementioned telephone conversations with employees and/or agents of Defendants did Plaintiff give her consent to Defendants to record or monitor such telephone conversations.
FAC at ¶ 18. "Defendants recorded all of its numerous telephone conversations with Plaintiff, and all of Plaintiff's telephone conversations with Defendants entailed Plaintiff using her ‘cellular radio telephone’ as such term is defined in Cal. Penal Code § 632.7(c)(1)." Id. at ¶ 21.
Plaintiff has (1) "lost money or property in that Plaintiff ... ha[s] suffered ... statutory damages ... pursuant to Cal. Penal Code § 637.2(a) [ ] and/or actual damages or liquidated damages ... pursuant to Wash. Rev. Code § 9.73.060"; (2) "suffered actual damages in the form of cellular telephone service fees [she] incurred for the period of time [she was] on the phone with Defendants' employees and/or agents"; (3) "surrender[ed] more in [her] transactions with Defendants than [she] otherwise would have since Defendants have recorded and possess the recordings of their telephone conversations without their prior permission or consent"; and (4) "ha[d] a present or future property interest diminished since Defendants have recorded and possess the recordings of their telephone conversations without [her] prior permission or consent." Id. at ¶ 58.
Federal Rule of Civil Procedure 12(b)(6) permits dismissal for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil Procedure 8(a)(2) provides "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." "A district court's dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.’ " Conservation Force v. Salazar , 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't , 901 F.2d 696, 699 (9th Cir. 1990) ).
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citation omitted). However, "a plaintiff's obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (quoting Fed. R. Civ. P. 8(a) ). A court is not "required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors , 266 F.3d 979, 988 (9th Cir. 2001). "In sum, for a complaint to survive a motion to dismiss, the non-conclusory factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv. , 572 F.3d 962, 969 (9th Cir. 2009) (quotations omitted).
Monterey moves to dismiss Plaintiffs' claims for violations of California Penal Code § 632 and California Penal Code § 632.7. Brinkley contends that the FAC adequately alleges that Monterey violated § 632 and § 632.7.1
Section 632 prohibits "intentionally and without the consent of all parties to a confidential communication ... eavesdrop[ping] upon or record[ing] the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio." Cal. Penal Code § 632(a). Section 632 became effective in 1967.
Under Section 632.7(a), "Every person who, without the consent of all parties to a communication, intercepts or receives and intentionally records ... a communication transmitted between two cellular radio telephones [or] a cellular radio telephone and a landline telephone ... shall be punished ...." Section 632.7 defines a "[c]ellular radio telephone" as "a wireless telephone authorized by the Federal Communications Commission to operate in the frequency bandwidth reserved for cellular radio telephones." Cal. Penal Code § 632.7(c)(1).
Section 632.7 became effective in 1992. Leading up to the passage of § 632.7, the California Senate Committee on Judiciary stated that "there is currently no statute prohibiting a person from intercepting and intentionally recording a communication transmitted via cellular or cordless telephone." Senate Committee on Judiciary, AB 2465, at 2 (June 9, 1992). The Ways & Means Committee agreed, stating that § 632.7"would expand existing law prohibiting unauthorized recording of telephone conversations to cover cordless and cellular phones." Ways & Means Committee, AB 2465, at 1 (March 9, 1992). Section 632.7 was intended to "simply extend[ ] to persons who use cellular or cordless telephones the same protection from recordation that persons using ‘landline’ telephones presently enjoy." Author Lloyd G. Connelly's Statement of Intent, Cal. Assem. Bill No. 2465 (1992), at 1.
Monterey contends that "Brinkley states no claim under California Penal Code § 632 [ ] because that statute does not apply to calls involving a cellular radio telephone." (ECF No. 100 at 6) (citing McEwan v. OSP Group, L.P. , No. 14-cv-2823-BEN (WVG), 2015 WL 13374016 (S.D. Cal. July 2, 2015) ). Brinkley contends that § 632 does apply to cellular telephone conversations, citing Perea v. Humana Pharmacy, Inc. , 2013 WL 12129618 (C.D. Cal. Jan. 23, 2013) ; Nader v. Capital One Bank (USA), N.A. , 2013 WL 11070244, (C.D. Cal. June 11, 2013) ; and Kahn v. Outrigger Enterprises, Inc. , 2013 WL 12136379 (C.D. Cal. Oct. 29, 2013).
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