340 F. Supp. 3d 1036
S.D. Cal.2018Background
- Plaintiff Tiffany Brinkley sued Monterey Financial Services (Inc. later substituted by LLC) claiming the company recorded her cellular phone calls without consent (calls in 2011–2013) and seeking statutory/damages relief and injunctive relief.
- FAC alleges recordings of at least two calls, statutory damages under Cal. Penal Code §§ 632, 632.7 and Wash. Rev. Code § 9.73.030, and UCL (Cal. Bus. & Prof. Code § 17200) restitution based on cellular charges and alleged diminution of property interests.
- Monterey moved to dismiss, arguing (inter alia) § 632 does not cover cellular phones, § 632.7 does not reach a consenting recipient who later records, Brinkley failed to plead cognizable economic injury for UCL and Wash. statute claims, and Brinkley lacks standing for injunctive relief.
- The Court applied Rule 12(b)(6) and Iqbal/Twombly plausibility standards and construed California statutory language and legislative history where relevant.
- Rulings: dismissal denied as to Cal. Penal Code § 632 and § 632.7 claims; dismissal granted without prejudice as to Washington Rev. Code § 9.73.030 claim and UCL claim for lack of pleaded causation/economic injury; injunctive-relief claims dismissed for lack of Article III standing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Cal. Penal Code § 632 covers calls involving cellular radio telephones | Brinkley: § 632's plain text encompasses "telephone" and thus includes cell phones | Monterey: "telephone" should be read with the qualifier "except a radio," excluding cellular radio telephones; § 632.7 shows Legislature meant to separately cover cellular phones | Court: § 632 unambiguously covers cellular telephones; motion to dismiss this claim denied |
| Whether Cal. Penal Code § 632.7 requires lack of consent as to interception/receipt and recording (i.e., whether a consenting recipient who records still violates § 632.7) | Brinkley: § 632.7 was meant to extend landline protections to cellular calls and therefore prohibits a party from recording without the other party's consent | Monterey: Phrase "without the consent of all parties" modifies both "intercepts or receives" and "intentionally records," so § 632.7 targets third‑party interception, not a consenting recipient who records | Court: § 632.7 reasonably read to prohibit a party from recording a call without the other party's consent; motion to dismiss this claim denied |
| Whether Brinkley adequately pleaded injury for Wash. Rev. Code § 9.73.030 and UCL (Cal. Bus. & Prof. Code § 17200) restitution | Brinkley: Alleged actual damages (cellular service fees) and other purported losses suffice to plead economic injury and entitlement to restitution | Monterey: FAC fails to allege that recordings caused Brinkley to incur cellular charges or other loss causally tied to defendants' conduct | Court: FAC does not plead that Monterey's recordings caused Brinkley's cellular fees or economic loss; Washington statutory claim and UCL claim dismissed without prejudice |
| Whether Brinkley has Article III standing to seek injunctive relief (real and immediate threat of repeated injury) | Brinkley: Statutory violation and risk of dissemination of recordings create real/immediate threat; Cal. Penal Code § 637.2(b) authorizes injunction | Monterey: No plausible risk of future recording or dissemination alleged; federal Article III still required and unmet | Court: Plaintiff failed to allege a real and immediate threat of repeated injury (no prior dissemination alleged); injunctive relief claims dismissed for lack of standing |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim to relief)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (complaint must plead enough facts to state a plausible claim)
- Wells v. One2One Learning Found., 39 Cal.4th 1164 (2006) (statutory interpretation: start with ordinary meaning; consult legislative history only if ambiguous)
- Gest v. Bradbury, 443 F.3d 1177 (9th Cir. 2006) (injunctive relief requires realistic threat of repetition)
- Kearney v. Kearney, 95 Wash.App. 405 (1999) (addressing personal-injury requirement under Washington statute)