Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC

340 F. Supp. 3d 1036
CourtDistrict Court, S.D. California
DecidedSeptember 13, 2018
DocketCase No.: 16-cv-1103-WQH-WVG
StatusPublished
Cited by11 cases

This text of 340 F. Supp. 3d 1036 (Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brinkley ex rel. Herself v. Monterey Fin. Servs., LLC, 340 F. Supp. 3d 1036 (S.D. Cal. 2018).

Opinion

Hon. William Q. Hayes, United States District Judge

The matter before the Court is the Motion to Dismiss (ECF No. 100) filed by Defendant Monterey Financial Services, LLC.

I. Background

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.

*1038The 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).

II. Allegations

[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 *1039recorded and possess the recordings of their telephone conversations without [her] prior permission or consent." Id. at ¶ 58.

III. Legal Standard

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.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jones v. Ford Motor Company
W.D. Washington, 2022
McKee v. General Motors Company
W.D. Washington, 2022
Smith v. LoanMe, Inc.
483 P.3d 869 (California Supreme Court, 2021)
Smith v. LoanMe, Inc.
California Court of Appeal, 2019

Cite This Page — Counsel Stack

Bluebook (online)
340 F. Supp. 3d 1036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brinkley-ex-rel-herself-v-monterey-fin-servs-llc-casd-2018.