United States District Court, S.D. California
ANNETTE HARRISON, individually and on behalf of all others similarly situated, Plaintiff,
GREAT HEALTHWORKS, INC., a Nevada corporation; and DOES 1-50, inclusive, Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS
JEFFREY T. MILLER UNITED STATES DISTRICT JUDGE.
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.
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.
removed the case to this court on April 6, 2017, and filed
the instant motion approximately three weeks later.
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).
court will address each of Plaintiff's two causes of
action in turn.
First Cause of Action: Violation of TCPA
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
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. 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.
Second Cause of Action: Violation of CIPA
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, ...