CIVIL MINUTES &mdash GENERAL
CHRISTINA A. SNYDER, District Judge.
The Court finds this motion appropriate for decision without oral argument. Fed. R. Civ. P. 78; Local Rule 7-15. Accordingly, the hearing date of July 14, 2014, is vacated, and the matter is hereby taken under submission.
I. INTRODUCTION AND BACKGROUND
On February 24, 2014, plaintiff Florencio Pacleb filed this putative class action against defendants Cops Monitoring and Does 1 through 10. The operative first amended complaint ("FAC") asserts claims for: (1) negligent violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227; (2) knowing and/or willful violations of the TCPA; and (3) violations of California Penal Code § 632.7. In brief, plaintiff alleges that he received numerous automated telephone calls to his cellular telephone on December 19, 2013, from defendant, who was "looking for [an individual named] Frank Arnold." FAC ¶¶ 9-28. Plaintiff further alleges that, during at least one of these calls, defendant "attempted to sell home security to Plaintiff."
On May 13, 2014, defendant filed a motion to dismiss the FAC's TCPA claims pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
II. LEGAL STANDARD
A Rule 12(b)(6) motion tests the legal sufficiency of the claims asserted in a complaint. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the `grounds' of his `entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."
In considering a motion pursuant to Rule 12(b)(6), a court must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from them.
Furthermore, unless a court converts a Rule 12(b)(6) motion into a motion for summary judgment, a court cannot consider material outside of the complaint (
For all of these reasons, it is only under extraordinary circumstances that dismissal is proper under Rule 12(b)(6). United States v. City of Redwood City, 640 F.2d 963, 966 (9th Cir. 1981).
As a general rule, leave to amend a complaint which has been dismissed should be freely granted. Fed. R. Civ. P. 15(a). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency."
As relevant here, the TCPA provides that it shall be "unlawful for any person within the United States . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . for which the called party is charged for the call." 47 U.S.C. § 227(b)(1). As stated above, plaintiff alleges that defendant violated the TCPA by calling his cellular telephone multiple times without his consent, using an automatic telephone dialing system. FAC ¶¶ 9-28. According to plaintiff, defendant attempted to sell him home security services during at least one of the calls. Id. ¶ 13. Plaintiff alleges that these actions resulted in negligent, knowing, and/or willful violations of the TCPA. Id. ¶¶ 54, 58. Taking these allegations as true, as the Court must do when considering a Rule 12(b)(6) motion, the Court finds that these allegations are sufficient to state claims for negligent, knowing, and/or willful violations of the TCPA.
Defendant resists this conclusion on five grounds, none of which is availing. First, defendant contends that plaintiff lacks standing to assert a claim under the TCPA. Specifically, defendant argues that, according to the allegations in the FAC, it was trying to reach an individual named Frank Arnold, and not plaintiff. Plaintiff was therefore not the "called party" within the meaning of the TCPA because he was not the intended recipient of the alleged calls. Thus, according to defendant, plaintiff is not entitled to maintain an action under the TCPA.
The federal courts are divided as to whether actions under 47 U.S.C. § 227 may be maintained by persons other than the intended recipient of an automated call. Some courts have found that an action for violation of 47 U.S.C. § 227 may only be maintained by the person whom the defendant intended to reach.
The Court finds the latter group of cases to be more persuasive. In particular, the Court is persuaded by the Seventh Circuit's analysis in
Next, defendant argues that plaintiff's TCPA claims fail because, according to the allegations in the FAC, the calls were made for emergency purposes, namely, to alert plaintiff that a security alarm had been triggered at his residence. Therefore, according to defendant, the alleged calls fall within the "emergency exception" to 47 U.S.C. § 227, which proscribes "any call (other than a call made for emergency purposes . . .)." This argument fails because the FAC alleges that at least one of the calls was for the purpose of "sell[ing] home security to plaintiff," and not for emergency purposes.
Defendant's third argument is that its business is "`exclusively focused on' alarm dealers" and has no direct relationship with downstream consumers of security services. Defendant argues that it is therefore implausible that it would have "attempted to sell home security to plaintiff." This argument fails because it is grounded on factual assertions that do not appear in the FAC. Moreover, while defendant attempts to support these assertions by seeking judicial notice of an image of its webpage, the Court does not consider this evidence at this stage because it is "subject to reasonable dispute."
Finally, defendant argues that certain allegations in the FAC are conclusory and therefore should not be assumed to be true for the purposes of the present motion. First, defendant argues that the FAC does not sufficiently allege that defendant used an automatic telephone dialing system ("ATDS"). This argument lacks merit. Plaintiff alleges that the defendant called him using an ATDS. FAC ¶ 25. Whether defendant actually did so is better adjudicated after the evidentiary record has been developed. Similarly, defendant argues that the FAC does not adequately allege that defendant acted knowingly and/or willfully in violating the TCPA. This argument fails because the FAC alleges that defendant's conduct constituted "multiple knowing and/or willful violations of the TCPA,"
Thus, the Court concludes that the FAC states claims for negligent, knowing and/or willful violations of 47 U.S.C. § 227.
In accordance with the foregoing, defendant's motion to dismiss is hereby DENIED.