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Harrison v. Great Healthworks, Inc.

United States District Court, S.D. California

June 13, 2017

ANNETTE HARRISON, individually and on behalf of all others similarly situated, Plaintiff,
v.
GREAT HEALTHWORKS, INC., a Nevada corporation; and DOES 1-50, inclusive, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S COMPLAINT

          JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE.

         Defendant Great HealthWorks, Inc. (“GHW”) moves the court to dismiss the complaint of Plaintiff Annette Harrison for failure to state a claim. (Doc. No. 7.) Plaintiff opposes the motion. The court finds the matter suitable for decision without oral argument pursuant to Civil Local Rule 7.1(d)(1) and, for the following reasons, denies GHW's motion.

         BACKGROUND

         On March 6, 2017, Plaintiff filed a class action complaint in San Diego Superior Court against GHW alleging two causes of action: (1) violation of the federal Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and (2) violation of the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code § 632.7. (See Doc. No. 1- 2 at 2.) The thrust of the complaint is that GHW used an auto-dialer to call Plaintiff on her cell phone, without her consent, for the purpose of selling her health supplements (the TCPA violation) and recorded those calls, again without her consent (the CIPA violation). For the alleged TCPA violation, Plaintiff seeks a statutory penalty of $500 to $1, 500 per call on behalf of herself and a putative nationwide class. For the CIPA violation, she seeks a statutory penalty of $5, 000 for each recorded call on behalf of herself and a putative California-wide class.

         GHW removed the case to this court on April 6, 2017, and filed the instant motion approximately three weeks later.

         LEGAL STANDARDS

         A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) challenges the legal sufficiency of the pleadings. To overcome such a motion, the complaint must contain “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). Facts merely consistent with a defendant's liability are insufficient to survive a motion to dismiss because they establish only that the allegations are possible rather than plausible. Id. at 678-79. The court must accept as true the facts alleged in a well-pled complaint, but mere legal conclusions are not entitled to an assumption of truth. Id. The court must construe the pleading in the light most favorable to the non-moving party. Concha v. London, 62 F.3d 1493, 1500 (9th Cir. 1995).

         DISCUSSION

         The court will address each of Plaintiff's two causes of action in turn.

         A. First Cause of Action: Violation of TCPA

         The TCPA generally prohibits using automatic dialing systems to make nonemergency, unsolicited calls advertising property, goods, or services. 47 U.S.C. § 227(b). As provided in 47 C.F.R. § 64.1200, the TCPA's exception for emergency calls includes “calls made necessary in any situation affecting the health and safety of consumers.”

         GHW offers only one argument for dismissing this cause of action: that “the calls to Plaintiff served an emergency purpose because they related to her ‘health and safety.'” As GHW well knows, however, the court cannot simply accept that assertion as true at this stage in the proceedings.[1] Instead, the court must accept as true the facts alleged in the complaint. Iqbal, 556 U.S. at 678-79. And in the complaint, Plaintiff alleges that the calls by GHW were an “attempt to sell Plaintiff additional products.” (Doc. No. 1-2 at 3, ¶ 6.) Consequently, the court denies GHW's motion to dismiss the first cause of action.

         B. Second Cause of Action: Violation of CIPA

         Section 632.7 of CIPA imposes liability on anyone who, “without the consent of all parties to a communication, intercepts or receives and intentionally records . . . a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, ...


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