United States District Court, N.D. California
For Stevin Masuda, Plaintiff: Balam Osberto Letona, Law Office of Balam O. Letona, Inc., Santa Cruz, CA.
For Citibank N.A., Defendant: Arjun P. Rao, Stroock & Stroock & Lavan LLP, Los Angeles, CA; Marcos D. Sasso, Attorney at Law, Los Angeles, CA.
ORDER DENYING MOTION TO DISMISS AND VACATING HEARING
PHYLLIS J. HAMILTON, United States District Judge.
Before the court is the motion of defendant Citibank, N.A. (" Citibank" ) for an order dismissing the first and third causes of action alleged in the first amended complaint (" FAC" ). Having read the parties' papers and carefully considered their arguments and the relevant legal authority, the court hereby DENIES the motion as follows.
Plaintiff Stevin Masuda (" Masuda" ) alleges that defendant Citibank placed repeated calls to his cell phone, using an automated dialer to call and leave prerecorded telephone messages without consent or an established prior business relationship. Masuda, who was not a Citibank customer, alleges that between April and November 2014 he received over 300 calls from Citibank seeking to collect on a Citibank Mastercard consumer credit card. He alleges that over this period he contacted Citibank by telephone twice to request that the calls stop and that he additionally sent written correspondence twice and an email once requesting that the calls stop, yet they continued.
Masuda originally filed suit in this court on January 10, 2014, alleging causes of action for (1) violation of the Rosenthal Fair Debt Collection Practices Act (" Rosenthal Act" ), Cal. Civ. Code § 1788.17, et seq.; (2) violation of the Telephone Consumer Protection Act (" TCPA" ), 47 U.S.C. § 227, et seq.; and (3) intrusion upon seclusion. Masuda filed the FAC on March 3, 2014, alleging the same three causes of action. Citibank now moves to dismiss the first and third causes of action for failure to state a claim, leaving undisturbed the second claim under TCPA in this motion.
A. Legal Standard
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests for the legal sufficiency of the claims alleged in the complaint. Ileto v. Glock, Inc., 349 F.3d 1191, 1199-1200 (9th Cir. 2003). Review is limited to the contents of the complaint. Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). To survive a motion to dismiss for failure to state a claim, a complaint generally must satisfy only the minimal notice pleading requirements of Federal Rule of Civil Procedure 8, which requires that a complaint include a " short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2).
A complaint may be dismissed under Rule 12(b)(6) for failure to state a claim if the plaintiff fails to state a cognizable legal theory, or has not alleged sufficient facts to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). The court is to " accept ...