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Ronquillo-Griffin v. Telus Communications, Inc.

United States District Court, S.D. California

June 27, 2017

KELISSA RONQUILLO-GRIFFIN; KHOI NGUYEN; and RUSSELL SMITH, individually and on behalf of all others similarly situated, Plaintiffs,


          JEFFREY T. MILLER United States District Judge

         On May 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.[1] (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.


         Plaintiffs 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.)

         Based 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 12-13.)


         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).


         The 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.

         A. First Count: Violation of California Penal Code Section 632.7

         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.

         Transactel 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).[2]

         Though 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.”).

         Unlike 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.

         “With 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).

         This 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 ...

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