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Brinkley v. Monterey Financial Services, Inc.

United States District Court, S.D. California

May 9, 2018

TIFFANY BRINKLEY, on behalf of herself and others similarly situated, Plaintiff,
v.
MONTEREY FINANCIAL SERVICES, INC. and MONTEREY FINANCIAL SERVICES, LLC, Defendants.

          ORDER

          Hon. William Q. Hayes United States District Court.

         The matters before the Court are the Motion for Sanctions (ECF No. 70) filed by Defendant Monterey Financial Services, LLC and the Motion for Leave to Amend and to File a First Amended Class Action Complaint (ECF No. 80) filed by Plaintiff Tiffany Brinkley.

         I. Background

         On October 15, 2013, Plaintiff Tiffany Brinkley initiated this action by filing a Complaint (ECF No. 1-3) against Monterey Financial Services, Inc. (“Monterey Inc.”) and Doe Defendants in the Superior Court of the State of California in and for the County of San Diego. On April 1, 2016, Brinkley amended the Complaint to add Monterey Financial Services, LLC (“Monterey LLC”) as a defendant. (ECF No. 1-8 at 2). The Complaint brings claims on behalf of Brinkley and a proposed class of

[a]ll persons who, while physically located or residing in California and Washington, made or received one or more telephone calls with Defendant Monterey Financial Services, Inc. during the four year period preceding the filing of this lawsuit (the “Class Period”) and did not receive notice at the beginning of the telephone call that their telephone conversation may be recorded or monitored.

(ECF No. 1-3 at ¶ 26). The Complaint brings claims for invasion of privacy, unlawful recording of telephone calls, and unlawful and unfair business acts. Id. at 3. The Complaint alleges that

[f]rom December 2012 through March 2013, and specifically on December 19, 2012 and again on January 10, 2013, Plaintiff had telephonic communications with certain employees, officers and/or agents of Defendant . . . . At no time during such telephone conversations . . . was Plaintiff told that her telephone conversations would be or may be recorded or monitored . . . .

Id. at ¶ 18.

         On December 10, 2013, Monterey Inc. filed a motion to compel arbitration of Brinkley's individual claims and dismiss Brinkley's class claims. (ECF No. 1-5 at 2-14). On April 7, 2014, the Superior Court entered an Order granting Monterey Inc.'s motion, ordering Brinkley's individual claims to arbitration, and dismissing Brinkley's class claims. Id. at 41-42. On May 29, 2014, Brinkley appealed the Superior Court's order to the California Court of Appeal. Id. at 43. On November 19, 2015, the California Court of Appeal entered an Order affirming the portion of the Superior Court's order compelling the arbitration of Brinkley's individual claims, reversing the portion of the Superior Court's order dismissing Brinkley's class claims, and holding that “[t]he entire matter should be sent to arbitration.” Brinkley v. Monterey Fin. Servs., Inc., 196 Cal.Rptr.3d 1, 35 (Cal.Ct.App. 2015). Brinkley and Monterey Inc. subsequently “waive[d] their rights to arbitrate Plaintiff's Complaint and agree[d] to litigate Plaintiff's matter in Court.” (ECF No. 1-6 at 8).

         On May 6, 2016, Monterey Inc. and Monterey LLC (together, the “Defendants”) removed the matter to this court. (ECF No. 1). On May 19, 2016, Brinkley filed a Motion to Remand the Case to State Court (ECF No. 12). On March 23, 2017, the Court issued an Order granting the Motion to Remand. (ECF No. 55). On April 4, 2017, the Defendants appealed the Order granting the Motion to Remand to the United States Court of Appeals for the Ninth Circuit. (ECF No. 56). On November 15, 2017, the Court of Appeals vacated the Order granting the Motion to Remand. (ECF No. 63).

         On May 13, 2016, Monterey LLC filed a Motion to Dismiss (ECF No. 7) and Monterey Inc. filed a Motion for Judgment on the Pleadings (ECF No. 8). On June 6, 2016, Brinkley filed Memorandums in Opposition to the Motion to Dismiss and the Motion for Judgment on the Pleadings. (ECF Nos. 16, 17). On June 13, 2016, Monterey LLC filed a Reply in Support of the Motion to Dismiss and Monterey Inc. filed a Reply in Support of the Motion for Judgment on the Pleadings. (ECF Nos. 18, 19). On March 23, 2017, the Court issued an Order denying the Motion to Dismiss and the Motion for Judgment on the Pleadings. (ECF No. 55).

         On October 6, 2016, Matthew Orr, counsel for the Defendants, provided Brinkley's counsel with a copy of an audio recording of a call from Brinkley to Monterey, Inc. made on December 19, 2012. Declaration of Matthew Orr, ECF No. 70-2, at ¶ 3. On the recording, a prerecorded voice states “Thank you for calling Monterey Financial, your call may be monitored or recorded.” (ECF No. 70-6).

         In December 2017, Brinkley sent Monterey LLC interrogatories (ECF No. 88-2), requests for documents (ECF No. 88-3), and requests for admission (ECF No. 88-4). Monterey LLC's responses “were based upon the class period alleged in the Complaint- that is, October 15, 2009 through October 15, 2013.” Declaration of William P. Cole, ECF No. 88-1, at ¶ 2.

         On January 8, 2018, United States Magistrate Judge William V. Gallo entered a Scheduling Order Regulating Class Certification (ECF No. 69) (the “Scheduling Order”). The Scheduling Order provided that “[a]ny motion . . . to amend the pleadings . . . shall be filed by February 16, 2018.” ECF No. 69 at ¶ 1 (emphasis omitted). The Scheduling Order also provided that “[a]ll fact discovery related to class certification shall be completed by all parties by April 5, 2018” and that “[t]he parties shall designate their respective class certification experts in writing by April 19, 2018.” Id. at ΒΆΒΆ 2, 3 (emphasis ...


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