United States District Court, S.D. California
KELISSA RONQUILLO-GRIFFIN; KHOI NGUYEN; and RUSSELL SMITH, individually and on behalf of all others similarly situated, Plaintiffs,
TELUS COMMUNICATIONS, INC.; TRANSUNION RENTAL SCREENING SOLUTIONS, INC.; and TRANSACTEL BARBADOS, INC., Defendants.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO DISMISS PLAINTIFFS' FIRST
AMENDED CLASS ACTION COMPLAINT
JEFFREY T. MILLER United States District Judge
16, 2017, Defendant Transactel (Barbados), Inc.
(“Transactel”) filed a motion to dismiss the
first amended class action complaint (“FAC”) of
Plaintiffs Kelissa Ronquillo-Griffin, Khoi Nguyen, and
Russell Smith (collectively, “Plaintiffs”). (Doc.
No. 12.) That same day, Defendant Transunion Rental
Screening, Inc. (“TransUnion”) filed a notice of
joinder in Transactel's motion. (Doc. No. 14.) Plaintiffs
opposed the motion, Transactel replied, and the court took
the matter under submission pursuant to Civil Local Rule
7.1(d)(1). Now, for the following reasons, the court grants
the motion in part and denies it in part.
filed the FAC on March 16, 2017, alleging two counts: (1)
violation of California Penal Code section 632.7
(“section 632.7”); and (2) invasion of privacy,
intrusion into private affairs. (See generally Doc.
No. 7.) The crux of the FAC is that after Plaintiffs
requested copies of their credit reports from TransUnion in
December 2016, Transactel, acting on TransUnion's behalf,
called Plaintiffs and recorded those calls without their
consent. The FAC alleges only three calls-one to each
plaintiff. Of those three calls, one was of an unspecified
duration, one was four minutes long, and one was twelve
minutes long. One plaintiff was informed her call was being
recorded, while the other two allege as much on information
and belief. (Id. at 5-6, ¶¶ 22-28.)
on these allegations, Plaintiffs seek to represent a class
consisting of “[a]ll persons in California whose
inbound and outbound cellular telephone conversations were
recorded without consent by Defendant/s and/or their agent/s
within the two years prior to the filing of the [FAC].”
(Id. at 7, ¶ 33.) Plaintiffs seek special,
general, compensatory, and punitive damages, as well as
“[a]n amount of $5, 000 for each violation of section
632 et seq. of the California Penal Code, or three
times the amount of any actual damages sustained by
Plaintiffs, whichever is greater.” (Id. at
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 Plaintiffs' two counts in the order
presented. The court will then address Plaintiffs'
request for statutory penalties of $5, 000 for each alleged
violation of section 632.7.
First Count: Violation of California Penal Code Section
632.7 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, or
a cordless telephone and a cellular radio telephone . . .
.” Cal. Penal Code § 632.7(a). California Penal
Code section 637.2 (“section 637.2”-not to be
confused with section 632.7) provides a private right of
action to enforce violations of section 632.7.
contends that “Plaintiffs' claim fails because they
have not, and cannot, allege that Transactel intercepted or
received their communications without consent.” (Doc.
No. 12-1 at 9.) According to Transactel, “[n]o one
forced Plaintiffs to communicate with Transactel-they could
have easily hung up the phone, but they didn't hang up
because the calls were to help them obtain the copies of
their credit reports that they had requested.” (Doc.
No. 12-1 at 9.) In support of this argument, Transactel cites
Granina v. Eddie Bauer LLC, 2015 WL 9855304, at *3
(Cal. Super. Dec. 2, 2015). In Granina, a judge of
the Los Angeles County Superior Court reasoned that
“[b]ecause speech is a voluntary process, it is
difficult to imagine how someone talking to a known party via
wireless telephone could fail to consent to that party's
receipt of the communication.” Id. at *4. As
District Judge George King recently put it, the basis of the
decision in Granina “is merely another way of
saying that a recording must be made by a third party to be
actionable, ” because “[o]nly when an unknown
party is listening to a conversation would someone not have
consented to that party's receipt of
communication.” Raffin v. Medicredit, Inc.,
No. CV154912GHKPJWX, 2017 WL 131745, at *6 (C.D. Cal. Jan. 3,
2017); see also id. at *8 (relying on California law
interpreting similar language in California Penal Code
section 632 to conclude that the California Supreme Court
would interpret section 632.7 to require a party's
consent to record a conversation, thus rejecting
Granina's narrow view).
no California appellate court has considered whether section
632.7 applies only to non-parties to the call, federal
district courts have consistently rejected that argument. For
example, in Brown v. Defender Security Co., No.
12-7319, 2012 WL 5308964 (C. D. Cal. Oct. 22, 2012), the
court found that it was clear and unambiguous from the text
of the statute that section 632.7 prevents a party to a cell
phone conversation from recording it without the consent of
all parties to the conversation. Id. at *5. The
court reasoned that “as a matter of common usage, the
participants in a conversation ‘receive'
communications from each other.” Id. The court
in Brown found further support in the use of the
disjunctive “or” between the words
“intercepts” and “receives, ”
observing that because “‘intercepts' is most
naturally interpreted to refer to conduct whereby an unknown
party secretly accesses a conversation, ‘receives'
is naturally read to refer to something other than access to
a conversation by an unknown interloper.” Id.;
see also Simpson v. Vantage Hosp. Grp., Inc., No.
12-CV-04814-YGR, 2012 WL 6025772, at *6 (N.D. Cal. Dec. 4,
2012) (finding no ambiguity in the language of section 632.7
and stating, “Because the inclusion of
‘receives' is presumed to have been purposeful, the
Court must apply the statute as written and using the
term's plain (and broad) meaning”); Ades v.
Omni Hotels Mgmt. Corp., 46 F.Supp. 3D 999, 1017-18
(C.D. Cal. 2014) (“[A]s a matter of common usage, the
participants in a conversation ‘receive'
communications from each other.”).
the courts in the above-cited cases, the court in Simpson
v. Best W. Int'l, Inc., No.
3:12-CV-04672-JCS, 2012 WL 5499928, at *6-7 (N.D. Cal. Nov.
13, 2012), found the term “receives” to be
susceptible to at least two plausible interpretations.
“On the one hand, the word ‘receives' could
mean a third party who inadvertently ‘receives' a
cellular communication by happenstance, as opposed to
‘intercepting' the cellular communication
intentionally. . . . On the other hand, ‘received'
could have the meaning ascribed to it by the court in
Brown, that parties to a conversation
‘receive' communications from one another.”
Id. at *7. Because section 632.7 was ambiguous, the
court looked to the legislative history of the statute
“to determine whether the California Legislature
intended the statute to apply to participants of the
telephone conversation, or just to third parties.”
Id. The court stated:
In 1992, the California Legislature passed § 632.7
without any opposition. Cal. Dept. of Consumer Affairs,
Enrolled Bill Report on Assem. Bill No. 2465 (1992), at 4.
The statute was intended to simply extend to persons who use
cellular or cordless telephones the same protection from
recordation that persons using ‘landline'
telephones presently enjoy.' Author Lloyd G.
Connelly's Statement of Intent, Assem. Bill No. 2465
(1992), at 1. At the time, § 632 prohibited recording
confidential communications, but the Legislature assumed that
§ 632 only applied to communications made on landlines
and not to communications made on cellular or cordless
phones. See Letter to Governor Pete Wilson from
Assembly Member Lloyd G. Connelly (July 2, 1992)
(‘under existing law, it is not illegal to record the
otherwise private conversations of persons using cellular or
cordless telephones'). Moreover, at the time,
§§ 632.5 and 632.6 protected communications made on
cellular or cordless phones from malicious eavesdropping, but
those statutes did not protect against recording.
See §§ 632.5-632.6. The Legislature sought
to fill in this gap by similarly prohibiting the recordation
of communications made on cellular or cordless phones.
Notably, then-existing law prohibiting the recording of
landline communications extended to parties of the
conversation. See Warner v. Kahn, 99 Cal.App.3d 805
(1979) (stating the language in § 632 ‘has
uniformly been construed to prohibit one party to a
confidential communication from recording that communication
without the knowledge or consent of the other party');
see also Flanagan [v. Flanagan], 27 Cal.4th [766, ]
777 [(2002)] (holding a party to the conversation liable).
Id. at *8.
the Legislature's intent in mind, ” the court in
Simpson held that section 632.7 “may fairly be
read to apply to parties to the communication, as well to as
third parties.” Id. Buttressing its holding
was its determination that under the “ordinary use of
the word, each party to a conversation ‘receives'
communications as they hear the words spoken to them from the
other party.” Id.; see also Lal v. Capital
One Fin. Corp., No. 16-CV-06674-BLF, 2017 WL 1345636, at
*9 (N.D. Cal. Apr. 12, 2017) (agreeing with
Simpson's analysis and result).
court agrees with Simpson's thorough and
well-reasoned conclusion, which is in line with the bulk of
authority holding that section 632.7 applies to parties to
the call. Thus, the court declines to follow the Los Angeles
Superior Court's ...