Brinkley v. Monterey Financial Services, Inc. et al

Filing 106

ORDER: Monterey's Motion to Dismiss (ECF No. 100 ) is Granted in Part and Denied in Part. Brinkley's claims for violations of Washington Revised Code § 9.73.030 and California Business and Professions Code §§ 17200 et seq. are Dismissed without prejudice. Monterey's Motion to Dismiss (ECF No. 100 ) is Denied in all other respects. Any motion to amend shall be filed on or before 10/22/2018. Signed by Judge William Q. Hayes on 09/13/2018. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TIFFANY BRINKLEY, on behalf
of herself and others similarly
situated,

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ORDER

Plaintiff,
v.
MONTEREY FINANCIAL
SERVICES, LLC,
Defendant.

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Case No.: 16-cv-1103-WQH-WVG

HAYES, Judge:

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The matter before the Court is the Motion to Dismiss (ECF No. 100) filed by

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Defendant Monterey Financial Services, LLC.

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I.

Background

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On October 15, 2013, Plaintiff Tiffany Brinkley initiated this action by filing a

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Complaint (ECF No. 1-3) against Monterey Financial Services, Inc. in the Superior Court

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of the State of California in and for the County of San Diego. On April 1, 2016, Brinkley

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amended the Complaint to add Monterey Financial Services, LLC as a defendant. (ECF

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No. 1-8 at 2). On May 6, 2016, Monterey Financial Services, Inc. and Monterey Financial

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Services, LLC (collectively, “Monterey”) removed the matter to this court. (ECF No. 1).

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On May 17, 2018, Plaintiff Tiffany Brinkley filed a First Amended Complaint (ECF

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No. 97) (the “FAC”) against Monterey. The FAC brings claims for violations of California

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Penal Code § 632, Washington Revised Code § 9.73.70.030(1)(a), California Penal Code

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§ 632.7, and California Business and Professions Code §§ 17200 et seq. FAC at ¶¶ 38–60.

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The FAC seeks damages as well as injunctive relief (1) “prohibiting Defendants from []

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overhearing, recording and listening to each and every incoming and outgoing telephone

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conversation with California and Washington residents without their prior consent,” FAC

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at ¶ 60; (2) “compel[ling] Defendants to institute policies and procedures which will

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educate their employees and agents as to California and Washington privacy laws and

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assure that such employees and agents follow such privacy laws,” id.; (3) “prohibiting the

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future dissemination and disclosure of the recorded telephone conversations in the

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possession, custody and control of Defendants,” id.; and (4) “requiring Defendants to

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disgorge all ill-gotten gains and awarding Plaintiff and the Class full restitution of all

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monies wrongfully acquired by Defendants by means of such unfair and unlawful

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conduct,” id. at 26.

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On May 31, 2018, Monterey filed the Motion to Dismiss. (ECF No. 100). On June

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25, 2018, Brinkley filed an Opposition to the Motion to Dismiss. (ECF No. 101). On July

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2, 2018, Monterey filed a Reply in Support of the Motion to Dismiss. (ECF No. 102).

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On July 30, 2018, Magistrate Judge William V. Gallo issued an Order substituting

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Monterey Financial Services, LLC for Monterey Financial Services, Inc. and directing the

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Clerk of Court to terminate Monterey Financial Services, Inc. as a party to this case. (ECF

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No. 104).

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II.

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Allegations
[F]rom October of 2011 to October of 2013, and specifically on
February 14, 2013 and March 6, 2013, Plaintiff received at least one telephone
call from an employee and/or an agent of Defendants and made at least one
telephone call to an employee and/or an agent of Defendants . . . . During
each of these two aforementioned telephone conversations, . . . Plaintiff shared
her personal information as she believed that each of these calls was
confidential in nature and that such calls were not being monitored or
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recorded. At no time during either of her two aforementioned telephone
conversations with employees and/or agents of Defendants was Plaintiff told
that her telephone conversations would be or may be recorded or monitored,
and at no time during either of her two aforementioned telephone
conversations with employees and/or agents of Defendants did Plaintiff give
her consent to Defendants to record or monitor such telephone conversations.

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FAC at ¶ 18. “Defendants recorded all of its numerous telephone conversations with

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Plaintiff, and all of Plaintiff’s telephone conversations with Defendants entailed Plaintiff

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using her ‘cellular radio telephone’ as such term is defined in Cal. Penal Code

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§ 632.7(c)(1).” Id. at ¶ 21.

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Plaintiff has (1) “lost money or property in that Plaintiff . . . ha[s]

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suffered . . . statutory damages . . . pursuant to Cal. Penal Code § 637.2(a)[] and/or actual

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damages or liquidated damages . . . pursuant to Wash. Rev. Code § 9.73.060”; (2) “suffered

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actual damages in the form of cellular telephone service fees [she] incurred for the period

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of time [she was] on the phone with Defendants’ employees and/or agents”; (3)

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“surrender[ed] more in [her] transactions with Defendants than [she] otherwise would have

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since Defendants have recorded and possess the recordings of their telephone conversations

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without their prior permission or consent”; and (4) “ha[d] a present or future property

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interest diminished since Defendants have recorded and possess the recordings of their

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telephone conversations without [her] prior permission or consent.” Id. at ¶ 58.

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III.

Legal Standard

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Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a

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claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of Civil

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Procedure 8(a)(2) provides “[a] pleading that states a claim for relief must contain . . . a

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short and plain statement of the claim showing that the pleader is entitled to relief.” “A

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district court’s dismissal for failure to state a claim under Federal Rule of Civil Procedure

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12(b)(6) is proper if there is a ‘lack of a cognizable legal theory or the absence of sufficient

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facts alleged under a cognizable legal theory.’” Conservation Force v. Salazar, 646 F.3d

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1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699

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(9th Cir. 1990)).
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“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,

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556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

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“A claim has facial plausibility when the plaintiff pleads factual content that allows the

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court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.” Id. (citation omitted). However, “a plaintiff’s obligation to provide the ‘grounds’

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of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic

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recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555

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(quoting Fed. R. Civ. P. 8(a)). A court is not “required to accept as true allegations that

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are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.”

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Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). “In sum, for a

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complaint to survive a motion to dismiss, the non-conclusory factual content, and

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reasonable inferences from that content, must be plausibly suggestive of a claim entitling

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the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)

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(quotations omitted).

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IV.

California Penal Code § 632 and California Penal Code § 632.7

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Monterey moves to dismiss Plaintiffs’ claims for violations of California Penal Code

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§ 632 and California Penal Code § 632.7. Brinkley contends that the FAC adequately

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alleges that Monterey violated § 632 and § 632.7.1

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Section 632 prohibits “intentionally and without the consent of all parties to a

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confidential communication . . . eavesdrop[ping] upon or record[ing] the confidential

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communication, whether the communication is carried on among the parties in the presence

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of one another or by means of a telegraph, telephone, or other device, except a radio.” Cal.

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Penal Code § 632(a). Section 632 became effective in 1967.

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The Court will refer to California Penal Code § 632 as “§ 632” and California Penal Code § 632.7
as “§ 632.7”
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Under Section 632.7(a), “Every person who, without the consent of all parties to a

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communication, intercepts or receives and intentionally records . . . a communication

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transmitted between two cellular radio telephones [or] a cellular radio telephone and a

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landline telephone . . . shall be punished . . . .” Section 632.7 defines a “[c]ellular radio

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telephone” as “a wireless telephone authorized by the Federal Communications

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Commission to operate in the frequency bandwidth reserved for cellular radio telephones.”

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Cal. Penal Code § 632.7(c)(1).

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Section 632.7 became effective in 1992. Leading up to the passage of § 632.7, the

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California Senate Committee on Judiciary stated that “there is currently no statute

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prohibiting a person from intercepting and intentionally recording a communication

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transmitted via cellular or cordless telephone.” Senate Committee on Judiciary, AB 2465,

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at 2 (June 9, 1992). The Ways & Means Committee agreed, stating that § 632.7 “would

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expand existing law prohibiting unauthorized recording of telephone conversations to

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cover cordless and cellular phones.” Ways & Means Committee, AB 2465, at 1 (March 9,

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1992). Section 632.7 was intended to “simply extend[ ] to persons who use cellular or

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cordless telephones the same protection from recordation that persons using ‘landline’

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telephones presently enjoy.” Author Lloyd G. Connelly’s Statement of Intent, Cal. Assem.

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Bill No. 2465 (1992), at 1.

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Monterey contends that “Brinkley states no claim under California Penal Code

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§ 632[] because that statute does not apply to calls involving a cellular radio telephone.”

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(ECF No. 100 at 6) (citing McEwan v. OSP Group, L.P., No. 14-cv-2823-BEN (WVG),

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2015 WL 13374016 (S.D. Cal. July 2, 2015)). Brinkley contends that § 632 does apply to

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cellular telephone conversations, citing Perea v. Humana Pharmacy, Inc., 2013 WL

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12129618 (C.D. Cal. Jan. 23, 2013); Nader v. Capital One Bank (USA), N.A., 2013 WL

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11070244, (C.D. Cal. June 11, 2013); and Khan v. Outrigger Enterprises, Inc., 2013 WL

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12136379 (C.D. Cal. Oct. 29, 2013).

Section 632 and Cellular Radio Telephones

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A.

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District Court Cases Finding § 632 Applies to Cellular Radio
Phones

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Three courts in the Central District of California issued opinions in 2013 concluding

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that § 632 does apply to calls involving a cellular radio telephone. In Perea, the court

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observed that “Section 632 by its plain language prohibits recording ‘confidential

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communication . . . by means of a . . . telephone, or other device.” 2013 WL 12129618 at

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*5 (quoting Cal. Penal Code § 632). The court held that it “need look no further than to

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this plain language” to conclude that § 632 applies to calls involving a cellular radio

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telephone. Id. The court reasoned that phrase “except a radio” did not cover cellular radio

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telephones because “the plain language of the statute excludes conversations carried on ‘by

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means of . . . a radio’ not by means of telephones that operate on radio frequencies.” Id.

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(quoting Cal. Penal Code § 632). The court found that “a reading of section 632 that

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includes the recording of communications between a wireless telephone and a landline

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would not make section 632.7 redundant, because section 632 requires the additional

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element of confidentiality.” Id. at *5.

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In Nader, the court stated “Capital One’s claim that ‘radio’ includes a cellular phone

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is meritless. The Court finds persuasive the reasoning from Perea . . . .” 2013 WL

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11070244 at *2 n.4.

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In Kahn, the court began its analysis by stating that, when interpreting a statute, a

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court’s “task is to discern the Legislature’s intent.” 2013 WL 12136379, at *5 (quoting

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Wells v. One2One Learning Found., 141 P.3d 225, 236 (Cal. 2006)). According to the

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court,

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The statutory language itself is the most reliable indicator, so we start with the
statute’s words, assigning them their usual and ordinary meanings, and
construing them in context. If the words themselves are not ambiguous, we
presume the Legislature meant what it said, and the statute’s plain meaning
governs. On the other hand, if the language allows more than one reasonable
construction, we may look to such aids as the legislative history of the measure
and maxims of statutory construction. In cases of uncertain meaning, we may

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also consider the consequences of a particular interpretation, including its
impact on public policy.

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Id. (quoting Wells, 141 P.3d at 236).
The court concluded that the words of § 632 themselves are not ambiguous because
“the usual and ordinary meaning of the term ‘telephone’ in section 632 incorporates cellular
phones.” Id. (quoting Cal. Penal Code § 632). The Court held that the plain meaning of
the word “telephone” governs and § 632 applies to communications carried on by means
of a cellular radio telephone. Id. The court reasoned that interpreting § 632 to cover
cellular phones would not read “except for radio” out of the statute because other
communications occur over radios, such as communications carried on by means of
“traditional police dispatch systems.” Id. The court addressed the legislative history of
§ 632.7 by stating
The Court agrees that the legislative history accompanying the 1992
enactment of section 632.7 does support the contention that at least some
California legislators did not think section 632 covered cellular phones.
However, courts do not generally give significant weight to the views of later
legislatures on the intent of an earlier one. See Schrader v. Idaho Dept. of
Health and Welfare, 768 F.2d 1107, 1114 (9th Cir. 1985) (“It is well settled
that the views of a later Congress regarding the legislative intent of a previous
Congress do not deserve much weight.” (citing Consumer Product Safety
Comm’n v. GTE Sylvania, 447 U.S. 102, 117 (1980)); Penn Mut. Life Ins. Co.
v. Lederer, 252 U.S. 523, 538 (1920) (stating that “no aid could possibly be
derived from the legislative history of another act passed nearly six years after
the one in question”). Further, in accordance with California’s guidelines on
statutory interpretation, because the Court finds the language of section 632
unambiguous, the legislative history of subsequent enactments need not be
considered.

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Id.
B.

McEwan

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The McEwan court came to opposite conclusion. 2015 WL 13374016 at *3–4. The

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court stated that the relevant question was “whether ‘telephone’ means only one type of

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telephone (i.e. landline telephones), or all types of telephones.” Id. at *3 (quoting Cal.

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Penal Code § 632). The court reasoned that “‘[t]elephone’ cannot be defined without
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considering the qualifying phrase, ‘except a radio.’” Id. (quoting Cal. Penal Code § 632).

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The court found that “[a] reading of section 632(a) exposes at least two reasonable

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interpretations”: (1) “that the modifier ‘except a radio’ qualifies confidential

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communications in the presence of one another, by telegraph, by telephone, and other

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devices,” and (2) “that the modifier ‘except a radio’ only applies to the last item in the

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list—‘other devices.’” Id. (quoting Cal. Penal Code § 632). The court reasoned that, under

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the first reasonable interpretation, “except a radio” modifies “telephone” and § 632 does

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not apply to communications made “by radio telephone.” Id. The court found that,

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“[b]ased upon these two interpretations, the statute’s language is ambiguous.” Id.

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The court resolved this “ambigu[ity]” by “look[ing] to legislative history and canons

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of statutory construction to determine the [Legislature’s] intent.” Id. (citing Wells, 141

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P.3d at 236). The court noted that the Legislature specifically addressed cellular radio

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telephones in other provisions. Id. (citing Cal Penal Code § 632.7). The court also noted

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that, while the word “telephone” in § 632 is not defined, “section 632 was enacted at a time

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where only one type of phone existed—landline phones. Thus, a definition of ‘telephone’

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was unnecessary.” Id. (quoting Cal. Penal Code § 632). The court also found that “[t]he

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legislative history suggests that use of ‘telephone’ refers to landline phones only, not any

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type of mobile phone.” Id. (quoting Cal. Penal Code § 632).

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Turning to the rules of statutory construction, the court focused on the rule that

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“[w]here a statute . . . contains a given provision, the omission of such provision from a

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similar statute concerning a related subject is significant to show that a different intention

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existed.” Id. at *4 (citing Estate of Reeves, 284 Cal. Rptr. 650, 653 (Cal. Ct. App. 1991)).

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According to the court,

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The Legislature had opportunity to amend section 632 at the time it added
sections 632.5, 632.6, and 632.7, but it did not. If the Legislature desired to
include all types of telephones in section 632, it certainly could have done so.
This is true especially in light of the definitions of “cellular radio telephone”
and “cordless telephone” added to section 632.7. As such, the addition of the
mobile phone definitions in later sections indicates that the Legislature did not
intend for section 632 to encompass those types of phones.
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Id. (quoting Cal. Penal Code § 632.7). The court also applied the rule of lenity, which it

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concluded supported construing the word “telephone” not to include cellular radio

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telephones. Id. (quoting Cal. Penal Code § 632).

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C.

Analysis

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This Court agrees with the courts in Perea, Nader, and Khan that a cellular radio

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telephone is a “telephone” under the usual and ordinary meaning of that word. The phrase

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“except a radio” unambiguously excludes communications carried on by means of one kind

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of device: radios. A cellular radio telephone is not a “radio” under the usual and ordinary

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meaning of that word.

Consequently, Section 632 unambiguously applies to

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communications carried on by means of a cellular radio telephone. Having concluded that

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the words used in § 632 unambiguously prevent the recording of communications carried

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on by means of a cellular radio telephone, the Court need not examine the legislative history

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of that statute, apply any other maxims of statutory construction, or consider the

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consequences of its interpretation. Wells, 141 P.3d at 236. Monterey’s motion to dismiss

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Brinkley’s claim for violations of § 632 is denied.

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2.

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Monterey contends that Brinkley’s Section 632.7 claim fails because the FAC does

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not allege that Monterey received Brinkley’s communications without Brinkley’s consent.

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(ECF No. 100-1 at 16). Monterey contends that “[t]he phrase ‘without the consent of all

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parties to the communication’ is placed before—and therefore modifies—all of what

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follows: ‘intercepts or receives and intentionally records.’” Id. (quoting Cal. Penal Code

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§ 632.7 (“Every person who, without the consent of all parties to a communication,

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intercepts or receives and intentionally records . . . a communication transmitted between

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two cellular radio telephones [or] a cellular radio telephone and a landline telephone . . .

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shall be punished . . . .”)). Monterey contends that “[a]ccordingly, a prosecuting authority

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or civil plaintiff must plead and prove lack of consent with respect to both (1) the

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‘interception or receipt’ of the communication, and (2) the ‘recordation’ of the

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communication.” Id. Monterey cites Young v. Hilton Worldwide, Inc., which held that §

Section 632.7 and Consent

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632.7 “restrict[s] third-party interception of cellular and cordless telephone radio

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transmissions,” and “do[es] not restrict the parties to a call from recording those calls.”

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2014 WL 3434117, at *1 (C.D. Cal. Jul. 11, 2014). Monterey also cites Granina v. Eddie

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Bauer LLC, 2015 WL 9855304 (Cal. Super. Dec. 2, 2015), which came to the same

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conclusion.

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Brinkley disagrees, citing a number of district court opinions holding that § 632.7

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applies to a party to a call who records the call without the other party’s consent. (ECF

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No. 101 at 26–32) (citing Ronquillo-Griffin v. Telus Communications Inc., 2017 WL

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2779329 at *3 (S.D. Cal. June 27, 2017); Horowitz v. GC Services Ltd. Partnership, 2015

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WL 1959377 at *11 (S.D. Cal. April 28, 2015); Montantes v. Inventure Foods, 2014 WL

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3305578, at *2–4 (C.D. Cal. July 2, 2014); Ades v. Omni Hotels Management Corporation,

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46 F.Supp.3d 999, 1017–1018 (C.D. Cal. 2014); Brown v. Defender Sec. Co., 2012 WL

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5308964, at *5 (C.D. Cal. Oct. 22, 2012); Simpson v. Vantage Hospitality Group, Inc.,

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2012 WL 6025772 (N.D.Cal. 2012); Simpson v. Best Western Intern., Inc., 2012 WL

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5499928 (N.D. Cal. 2012)).

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The Court finds that § 632.7 is susceptible to two different reasonable

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interpretations. The first is the interpretation suggested by Monterey, that “without the

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consent of all parties to the communication” modifies both “intercepts or receives” and

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“intentionally records.” (ECF No. 100-1 at 16) (quoting Cal. Penal Code § 632.7). Under

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this interpretation, a party who receives a communication with the consent of the

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communicator and records that communication without the communicator’s consent does

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not violate § 632.7. The second reasonable interpretation of § 632.7 is that “without the

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consent of all parties to the communication” modifies two conjunctives “intercepts and

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intentionally records” and “receives and intentionally records.” Cal. Penal Code § 632.7.

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Under this interpretation, a party to a call who records part of the conversation without the

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other party’s consent violates § 632.7 by “receiv[ing] and intentionally record[ing]” a

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communication without the other party’s consent. Id.

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The Court finds that the legislative history supports the second interpretation.

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According to the author of § 632.7, it was intended to “simply extend[ ] to persons who

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use cellular or cordless telephones the same protection from recordation that persons using

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‘landline’ telephones enjoy[ed at that time].” Connelly’s Statement of Intent, Assem. Bill

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No. 2465 (1992), at 1. At the time § 632.7 was being debated, a party to a call conducted

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on a landline violated § 632 by recording that call. See Cal. Penal Code § 632 (prohibiting

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“intentionally

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communication . . . record[ing a] confidential communication . . . carried on . . . by means

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of a telegraph, telephone, or other device, except a radio.”). Accordingly, the Court finds

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that § 632.7 prohibits the unauthorized recording of calls that are received with the other

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party’s consent. Monterey’s motion to dismiss Brinkley’s claim for violations of § 632.7

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is denied. See Ronquillo-Griffin v. TELUS Commc’ns, Inc., No. 17CV129 JM (BLM),

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2017 WL 2779329, at *4 (S.D. Cal. June 27, 2017) (denying the defendant’s motion to

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dismiss because the legislature intended § 632.7 to apply to parties to the communication);

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Simpson v. Best W. Int’l, Inc., No. 3:12-CV-04672-JCS, 2012 WL 5499928, at *9 (same).

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V.

and

without

the

consent

of

all

parties

to

a

confidential

Washington Revised Code § 9.73.030 and California Business and Professions

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Code §§ 17200 et seq.

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Monterey contends that Brinkley’s claim for violations of Washington Revised Code

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§ 9.73.030 should be dismissed because “[t]he FAC contains no allegation that Brinkley

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suffered any injury to her business, her person or her reputation.” (ECF No. 100-1 at 11).

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Monterey contends that Brinkley’s claim for violations of California Business and

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Professions Code §§ 17200 et seq. should be dismissed because the FAC “fails to plausibly

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allege that she lost money or property as a result of the alleged violations.” Id. at 15.

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Brinkley contends that the FAC alleges that she suffered an injury because of

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Monterey’s violations of Washington Revised Code § 9.73.030. (ECF No. 101 at 15).

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Brinkley contends that “Plaintiff’s ‘actual damages in the form of cellular telephone service

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fees’ alleged in ¶ 58 are sufficient damage allegations to meet the pleading standard

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imposed by Cal. Bus. & Prof. Code § 17204 in order to obtain restitution of such an actual
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loss of cellular telephone charges from Defendants.” (ECF No. 101 at 23) (emphasis

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omitted) (citing FAC at ¶ 58).2

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Washington Revised Code § 9.73.030(1)(a) makes it unlawful to “record any private

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communication transmitted by telephone, telegraph, radio, or other device . . . without first

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obtaining the consent of all the participants in the communication.” Wash. Rev. Code

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§ 9.73.030(1)(a). Washington Revised Code § 9.73.060 provides that any person who

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violates Washington Revised Code § 9.73.030(1)(a) “shall be subject to legal action for

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damages . . . brought by any other person claiming that a violation of this statute has injured

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his or her business, his or her person, or his or her reputation.” Id. at § 9.73.060.

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To bring a claim under California Business and Professions Code § 17204, a plaintiff

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must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury

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in fact, i.e., economic injury, and (2) show that economic injury was the result of, i.e.,

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caused by, the unfair business practice . . . that is the gravamen of the claim.” Kwikset

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Corp. v. Superior Court, 246 P.3d 877, 885 (Cal. 2011).

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The unfair business practice alleged in the FAC is Monterey’s unauthorized

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recording of the conversations between Brinkley and Monterey representatives. See FAC

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at ¶¶ 18–21. That is the same conduct that Brinkley alleges violated Washington Revised

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Code § 9.73.030(1)(a). See id. at ¶ 44. The FAC alleges that Brinkley “suffered actual

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damages in the form of cellular telephone service fees [she] incurred for the period of time

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[she was] on the phone with Defendants’ employees and/or agents.” FAC at ¶ 58.

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However, the FAC does not allege facts showing that Brinkley would not have made the

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Brinkley also contends that FAC alleges that that she lost property in the form “statutory damages”
and “recordings of her telephone conversations with Monterey.” Id. at 24 (citing FAC at ¶ 58). However,
prior to Monterey recording Brinkley’s conversations with Monterey representatives, Brinkley had no
property interest in statutory damages or the recordings themselves (which did not exist). Accordingly,
Monterey’s allegedly unfair business practice (recording Brinkley’s conversations with Monterey
representatives without her consent) did not impair Brinkley’s property interest in statutory damages or
the recordings of her conversations with Monterey representatives.
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calls that Monterey recorded, or would have ended those calls sooner, if Monterey had not

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recorded the calls, or if Monterey had informed Brinkley that the calls were being recorded.

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Consequently, the FAC does not allege that Monterey’s alleged violations of California

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and/or Washington law caused Brinkley to incur any cellular telephone service fees.

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Monterey’s motion to dismiss Brinkley’s claims for violations of Washington Revised

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Code § 9.73.030 and California Business and Professions Code §§ 17200 et seq.

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is granted.3

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VI.

Injunctive Relief

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Monterey contends that Brinkley does not have standing to bring her claims for

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injunctive relief because the FAC “does not—and cannot—allege any real and immediate

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threat of either Defendant recording a future call with her without her knowledge or

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consent.” (ECF No. 100-1 at 12). Brinkley contends that she has standing to bring her

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claims for injunctive relief because the FAC alleges violations of her statutory rights. (ECF

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No. 101 at 16). Brinkley contends that “California Penal Code § 637.2(b) gives Plaintiff

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the statutory authority to seek injunctive relief.” Id. at 17. Brinkley contends that the FAC

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alleges facts demonstrating a “real and immediate threat of repeated injury” in the form of

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Monterey disseminating recordings of her conversations with Monterey representatives.

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Id. at 19. Brinkley contends that Monterey should not be able to “avoid injunctive relief

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by removing the action to federal court.” Id. at 19.

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Monterey contends that state laws like California Penal Code § 637.2(b) do not

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“obviate the Article III standing requirement.” (ECF No. 102 at 9 n.3). Monterey contends

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that, even if the FAC adequately alleged a real and immediate risk of Monterey

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disseminating a recording, that would not give Brinkley standing to pursue her claims for

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3

The Court finds that neither Kearney v. Kearney, 974 P.2d 872 (Wash. 1999) nor In re Carrier IQ,
Inc., 78 F. Supp. 3d 1051, 1091 (N.D. Cal. 2015) establishes that the invasion of privacy inherent in the
unauthorized recording of an individual’s conversation satisfies the personal injury requirement of
Washington Revised Code § 9.73.060.

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injunctive relief because “the violation alleged by Brinkley is unconsented recording, not

2

dissemination.” Id. at 9.

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To establish standing to pursue injunctive relief, a plaintiff must allege a ‘real and

4

immediate threat of repeated injury’ in the future.” Chapman v. Pier 1 Imports (U.S.) Inc.,

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631 F.3d 939, 946 (9th Cir. 2011) (citing Fortyune v. Am. Multi-Cinema, Inc., 364 F.3d

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1075, 1081 (9th Cir. 2004)). This rule applies in federal courts even where a state statute

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allows plaintiffs to seek an injunction in state court without meeting its requirements. See

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SourceAmerica v. SourceAmerca, No. 314CV00751GPCAGS, 2018 WL 2193261, at *5

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(S.D. Cal. May 14, 2018) (“[A] default rule under California law that would not require a

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plaintiff seeking injunctive relief to offer evidence of future unlawful activity would

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squarely conflict with this Court’s Article III constraints.”).

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The Court finds that the FAC does not allege a real and immediate threat of repeated

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injury in the future. The FAC does not allege that Monterey has previously disseminated

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any recordings.

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disseminating recordings would not be a “repeated injury.” Chapman, 631 F.3d at 946

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(citing Fortyune, 364 F.3d at 1081); see also Gest v. Bradbury, 443 F.3d 1177, 1181 (9th

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Cir. 2006) (Plaintiffs seeking injunctive relief “must demonstrate that they are realistically

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threatened by a repetition of the violation.”). The Court finds that Brinkley does not have

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standing to pursue her requests for injunctive relief.4

Accordingly, any injury that Brinkley suffers from Monterey

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Brinkley’s request that the Court “sever and remand Brinkley’s injunctive relief claims back to state
Court” is denied. See ECF No. 101 at 21.
4

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VII. Conclusion

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Monterey’s Motion to Dismiss (ECF No. 100) is GRANTED IN PART and

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DENIED IN PART. Brinkley’s claims for violations of Washington Revised Code

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§ 9.73.030 and California Business and Professions Code §§ 17200 et seq. are DISMISSED

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without prejudice. Monterey’s Motion to Dismiss (ECF No. 100) is DENIED in all other

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respects. Any motion to amend shall be filed on or before October 22, 2018.

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Dated: September 13, 2018

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