The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS
Presently before the Court is Defendant Receivables Performance Management, LLC ("Defendant") motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff Erik Membrila ("Plaintiff") filed an opposition, and Defendant filed a reply. For the reasons stated herein, the Court grants in part and denies in part the motion to dismiss.
This matter involves Defendant's attempts to collect a debt allegedly owed by Plaintiff. The following facts relevant to this motion to dismiss are drawn from Plaintiff's First Amended Complaint.
Sometime before November 14, 2009, Plaintiff allegedly incurred a debt and fell behind in payments. The debt was assigned, placed, or otherwise transferred to Defendant. On or about November 24, 2009, Defendant telephoned Plaintiff and demanded payment of the debt. According to Plaintiff, Defendant "surreptitiously recorded" the telephone conversation.
On December 8, 2009, Jason Edwards telephoned Plaintiff on behalf of Defendant to demand payment. Jason Edwards allegedly told Plaintiff the call was being recorded only after discussing Plaintiff's debt and salary. Defendant did not give notice that the call was being recorded at the outset of the call, and Plaintiff never consented to the conversation being recorded.
On December 14, 2009, Plaintiff filed the original Complaint. (Doc. No. 1.) On December 30, 2009, the Court granted the parties' joint motion for extension of time for Defendant to answer. (Doc. No. 5.) On January 28, 2010, Plaintiff filed the First Amended Complaint ("FAC") asserting three causes of action: (1) violation of the Fair Debt Collection Practices Act; (2) violation of the California Rosenthal Fair Debt Collection Practices Act; and (3) illegal telephone recording in violation of California Penal Code §§ 631, 632.
On February 16, 2010, Defendant filed the instant motion to dismiss the third cause of action for illegal telephone recording. (Doc. No. 10.)
A complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a) (2009). A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pled in the complaint as true, and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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." Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556).
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 (citation omitted). A court need not accept "legal conclusions" as true. Iqbal, 129 S.Ct. at 1949. In spite of the deference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the... ...