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Portillo v. Icon Health & Fitness, Inc.

United States District Court, C.D. California

December 16, 2019

ICON HEALTH & FITNESS, INC., et al., Defendants.




         This matter comes before the Court on Defendant ICON Health & Fitness, Inc.'s Motion to Dismiss the Complaint Under Rule 12(b)(6). (ECF No. 11.) For the following reasons, the Court DENIES Defendant's Motion.[1]


         On February 26, 2019, Plaintiff Mynor F. Portillo filed a putative class action against ICON and other unnamed Defendants. (Compl., ECF No. 1.) Portillo alleges a single cause of action under California Penal Code (“CPC”) section 632.7 (part of California's Invasion of Privacy Act or “CIPA”), which prohibits the recording of certain communications without the consent of all parties involved. (Compl. ¶¶ 20-24.) Portillo seeks to represent a class of “[a]ll persons located in California whose wireless telephone conversations with Defendant were intentionally recorded without disclosure by Defendant at any time during the statute of limitations period through the date of final judgment in this action.” (Compl. ¶ 11.)

         Portillo alleges that he called ICON from a wireless telephone in California sometime in April 2018. (Compl. ¶ 7.) He spoke to an ICON representative who identified himself as “Scott.” (Id.) Portillo alleges that ICON recorded the call without his knowledge and authorization. (Compl. ¶ 8.) He expected that the call would be private given that ICON did not disclose that it would be recorded or ask Portillo for his consent to record it. (Compl. ¶ 10.) In fact, he alleges that ICON's practice is to record all incoming calls without ever seeking consent or informing callers of the recording. (Compl. ¶ 9.)


         Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). “To survive a motion to dismiss . . . under Rule 12(b)(6), a complaint generally must satisfy only the minimal notice pleading requirements of Rule 8(a)(2)”-a short and plain statement of the claim. Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 2003); see also Fed.R.Civ.P. 8(a)(2). The “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The “complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (citing Twombly, 550 U.S. at 555).

         Whether a complaint satisfies the plausibility standard is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted). A court is generally limited to the pleadings and must construe “[a]ll factual allegations set forth in the complaint . . . as true and . . . in the light most favorable to [the plaintiff].” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (internal quotation marks omitted). But a court need not blindly accept conclusory allegations, unwarranted deductions of fact, or unreasonable inferences. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).


         Although a court is generally limited to the pleadings in ruling on a Rule 12(b)(6) motion, it may consider documents incorporated by reference in the complaint or properly subject to judicial notice without converting the motion into one for summary judgment. Lee, 250 F.3d at 688-89. Federal Rule of Evidence 201 provides: “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed.R.Evid. 201(b). Accordingly, courts may take judicial notice of court filings and other matters of public record. Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006) (citation omitted).

         In support of its Motion to Dismiss and Reply, ICON requests that the Court take judicial notice of several court documents from other cases, as well as some legislative history materials. (See Reqs. for Judicial Notice (“RJN”), ECF Nos. 12, 15.) Portillo objects to ICON's requests for three main reasons. First, Portillo argues that his involvement in other cases is irrelevant to ICON's conduct in this action. (See Pl.'s Written Objs. to Evid., ECF No. 13-1, at 2.). Second, Portillo objects to judicial notice of the trial court order in Granina v. Eddie Bauer, LLC, No. BC569111, 2015 WL 9855304 (Cal. Super. Ct. Dec. 2, 2015), arguing that the Court should not consider it at all. (See Id. at 2-3.) Third, Portillo argues that legislative history is irrelevant because the statute in question is unambiguous. (See Id. at 3-5; Pl.'s Objs. to Def.'s Suppl. RJN ISO Reply, ECF No. 16.)

         Although each the Exhibits is subject to judicial notice, the Court agrees that most of them are irrelevant to the resolution of the instant Motion to Dismiss. Exhibits A-H contribute nothing to the analysis of the parties' substantive claims for and against dismissal. Similarly, the legislative history in Exhibits J and 1-3 is unnecessary where, as here, the Court finds that the statute in question is unambiguous. See Infra Part V.A; On-Line Power, Inc. v. Mazur, 149 Cal.App.4th 1079, 1085 (2007) (“Our primary purpose is to determine the intent of the Legislature, and if the words of a statute are unambiguous, there is no need for construction.”). On the other hand, Portillo's arguments against judicial notice of the trial court decision in Granina v. Eddie Bauer, LLC are misplaced. The Court can judicially notice the Granina order (Ex. I) and consider its persuasive merits, if any, in deciding the Motion. Accordingly, ICON's request for judicial notice of Exhibit I is GRANTED. All other requests are DENIED.

         V. DISCUSSION

         ICON moves to dismiss Portillo's Complaint on the grounds that Portillo: (1) cannot state a claim under CPC section 632.7; (2) does not have standing to pursue his section 632.7 claim; (3) failed to allege sufficient facts to support his claim for attorneys' fees under California Code of Civil Procedure ...

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