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Stoba v. Saveology. Com, LLC

United States District Court, S.D. California

July 18, 2014

GEORGE STOBA, et al., Plaintiffs,
SAVEOLOGY.COM, LLC, et al., Defendants.


CYNTHIA BASHANT, District Judge.

On October 8, 2013, Plaintiffs George Stoba and Daphne Stoba commenced this action for alleged unlawful recordings or monitoring of telephone calls. Thereafter, Defendants, LLC ("Saveology"), Elephant Group, Inc. ("Elephant"), and Time Warner Cable ("TWC") removed this action to federal court. Defendants now each separately moves to dismiss under Federal Rule of Civil Procedure 12(b)(6). Plaintiffs oppose.

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d.1). For the following reasons, the Court GRANTS IN PART and DENIES IN PART TWC's motion to dismiss, and GRANTS Saveology's and Elephant's motions to dismiss.


According to the complaint, on November 25, 2012, Mr. Stoba conducted an internet search using the term "Time Warner Cable, " and Ms. Stoba subsequently made a telephone call to Defendants. (Compl. ¶ 19.) During Ms. Stoba's telephone call, she "provided her confidential information, including, but not limited to her telephone number, address, and email address." ( Id. ) Shortly thereafter, Plaintiffs allege that Defendants called Ms. Stoba "in an attempt to sell Time Warner Cable service..., during which the male caller stated that [sic] Hi, this is Time Warner Cable.'" ( Id. ) On the same day, Mr. Stoba also called Defendants.

The next day, Defendants called Mr. Stoba again "in an attempt to sell Time Warner Cable service to Plaintiffs, during which the male caller stated that [sic] I'm with Time Warner Cable.'" (Compl. ¶ 20.) During this telephone call, "the male caller identified himself as Joseph' and further stated that he was with Saveology, an authorized dealer of Time Warner Cable." ( Id. ) Plaintiffs allege that "[d]uring the end of this last telephone call..., Joseph' stated that he wanted to let him know their call was being recorded for quality assurance purposes." ( Id. ) Mr. Stoba's alleged response to Joseph was "that he did not consent to their call being recorded and that it was illegal to record a telephone call in California without consent." ( Id. )

Plaintiffs allege that "Defendants recorded and/or monitored all of these multiple telephone conversations with Plaintiffs in the course of Defendants' attempt to sell Time Warner Cable service to Plaintiffs." (Compl. ¶ 21.) They further allege that "[a]t no time during any of these calls were the Plaintiffs ever informed at the beginning of the telephone calls that their telephone calls were being recorded and/or monitored[, ]" and "[a]t no time did Plaintiffs give their consent to Defendants for their telephone calls to be recorded and/or monitored." ( Id. ) According to Plaintiffs, during the relevant time period, Defendants "had a policy and a practice of recording and/or monitoring telephone conversations with consumers[, ]" and "Defendant's [sic] employees and agents [were] directed, trained and instructed to, and [did], record and/or monitor telephone conversations with Plaintiffs and other California residents." (Compl. ¶ 22.)

On October 8, 2013, Plaintiffs commenced this class action against Defendants, asserting three causes of action: (1) Unlawful Recording or Monitoring of Telephone Calls under California Penal Code § 632; (2) Unlawful Recording of Telephone Calls under California Penal Code § 632.7; and (3) Unlawful and Unfair Business Acts and Practices in violation of California Business and Professions Code § 17200 (Unfair Competition Law, or "UCL"). Then on December 6, 2013, Defendants removed this action to federal court. Defendants each filed separate briefs moving to dismiss under Rule 12(b)(6). TWC moves to dismiss the complaint in its entirety, and Saveology and Elephant move to dismiss Plaintiffs' UCL cause of action. Plaintiffs oppose all of the motions.


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 pleaded 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, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with' a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557).

"[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 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)) (alteration in original). A court need not accept "legal conclusions" as true. Iqbal, 556 U.S. at 678. Despite the deference the court must 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... laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the complaint whose authenticity is not questioned by parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superceded by statutes on other grounds). Moreover, the court may consider the full text of those documents, even when the complaint quotes only selected portions. Id. It may also consider material properly subject to judicial notice without converting the motion into one for summary judgment. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed.R.Civ.P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." ...

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