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Bales v. Sierra Trading Post, Inc.

United States District Court, Ninth Circuit

December 3, 2013

SCOTT BALES, Plaintiff,
v.
SIERRA TRADING POST, INC., Defendant.

ORDER DENYING MOTION TO DISMISS

JEFFREY T. MILLER, District Judge.

Defendant Sierra Trading Post, Inc. ("STP") moves to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). Plaintiff Scott Bales ("Bales") opposes the motion. Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reasons set forth below, the court denies the motion to dismiss.

BACKGROUND

On July 15, 2013, Plaintiff commenced a class action in the Superior Court for the County of San Diego by alleging a single claim for violation of Cal. Penal Code §630 et seq., recording communications "without the consent of plaintiff." (Compl. ¶16). In broad brush Plaintiff alleges that he "had one or more telephone communications with defendants' (sic) representatives in which he provided personal financial information (including credit card information) to defendants (sic)." (Compl. ¶5). During these telephone calls, Plaintiff was not notified that the "telephone communication was being recorded." (Compl. ¶9).

On August 14, 2013, STP removed this action based upon diversity jurisdiction, the 2005 Class Action Fairness Act, 28 U.S.C. §1332(d)(2)(A). Plaintiff and the class members he seeks to represent are California residents, and STP is a Wyoming Corporation with its primary operations in Cheyenne, Wyoming and its corporate headquarters in Framingham, Massachusetts. (Notice of Removal, Ct. Dkt. 1, p.2:23-27).

DISCUSSION

Legal Standards

Federal Rule of Civil Procedure 12(b)(6) dismissal is proper only in "extraordinary" cases. United States v. Redwood City , 640 F.2d 963, 966 (9th Cir. 1981). Courts should grant 12(b)(6) relief only where a plaintiff's complaint lacks a "cognizable legal theory" or sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dept. , 901 F.2d 696, 699 (9th Cir. 1990). Courts should dismiss a complaint for failure to state a claim when the factual allegations are insufficient "to raise a right to relief above the speculative level." Bell Atlantic Corp v. Twombly , 550 U.S. 544, 555 (2007) (the complaint's allegations must "plausibly suggest[]" that the pleader is entitled to relief); Ashcroft v. Iqbal , 556 U.S. 662 (2009) (under Rule 8(a), well-pleaded facts must do more than permit the court to infer the mere possibility of misconduct). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. at 678. Thus, "threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id . The defect must appear on the face of the complaint itself. Thus, courts may not consider extraneous material in testing its legal adequacy. Levine v. Diamanthuset, Inc. , 950 F.2d 1478, 1482 (9th Cir. 1991). The courts may, however, consider material properly submitted as part of the complaint. Hal Roach Studios, Inc. v. Richard Feiner and Co. , 896 F.2d 1542, 1555 n.19 (9th Cir. 1989).

Finally, courts must construe the complaint in the light most favorable to the plaintiff. Concha v. London , 62 F.3d 1493, 1500 (9th Cir. 1995), cert. dismissed, 116 S.Ct. 1710 (1996). Accordingly, courts must accept as true all material allegations in the complaint, as well as reasonable inferences to be drawn from them. Holden v. Hagopian , 978 F.2d 1115, 1118 (9th Cir. 1992). However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a Rule 12(b)(6) motion. In Re Syntex Corp. Sec. Litig. , 95 F.3d 922, 926 (9th Cir. 1996).

The Motion

California's Privacy Act, Penal Code §632, prohibits, in relevant part, the recording of "confidential communication" without consent:

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any... recording device, ... records the confidential communication, ... shall be punished by [a fine and/or imprisonment]....

Pen.Code §632(a). A "confidential communication" is defined in the statute:

(c) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made... in any other circumstance in which the parties to the ...

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