This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 15:11:42 (UTC).

Luna v. Renewal by Andersen LLC, et al.

Case Summary

On 11/01/2018 Luna filed a Personal Injury - Other Personal Injury lawsuit against Renewal by Andersen LLC. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judge overseeing this case is Kuhnle, Thomas. The case status is Other - Transferred.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******7047

  • Filing Date:

    11/01/2018

  • Case Status:

    Other - Transferred

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judge

Kuhnle, Thomas

 

Party Details

Plaintiff

Luna, John

Defendants

Andersen Corporation

Renewal by Andersen LLC

Not Classified By Court

Superior Court of California

Attorney/Law Firm Details

Plaintiff Attorneys

Jaurigue, Michael Joe

Manning, Danielle L

Glancy, Lionel Zevi

Greenstone, Mark Samuel

Not Classified By Court Attorney

Superior Court of CA, County of Santa Clara

 

Court Documents

Notice

Defendants' Notice to the Clerk and Parties of Notice of Removal to United States District Court: Comment: Defendants' Notice to the Clerk and Parties of Notice of Removal to United States District Court

Proof of Service

Proof of Service of Serving Order: Comment: Proof of Service of Serving Order

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: Comment: Proof of Service

Proof of Service: Summons DLR (Civil)

Proof of Service of Summons Complaint: Comment: Proof of Service

Civil Lawsuit Notice

Civil Lawsuit Notice: Comment: 1st CMC set for 2/15/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

Complaint (Unlimited) (Fee Applies)

Complaint (Unlimited) (Fee Applies): Comment: Class-Action Complaint

Civil Case Cover Sheet

Civil Case Cover Sheet: Comment: COMPLEX

Summons: Issued/Filed

Summons Issued Filed:

 

Docket Entries

  • 02/15/2019
  • Conference: Case Management - Judicial Officer: Kuhnle, Thomas; Hearing Time: 10:00 AM; Cancel Reason: Vacated; Comment: (1st CMC) Proposed Class Action * Violation of California Penal Code 632.7 * Discovery and responsive pleading deadline stayed, as of 11/7/18, when the case was deemed complex.

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  • 12/03/2018
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  • Notice - Defendants' Notice to the Clerk and Parties of Notice of Removal to United States District Court: Comment: Defendants' Notice to the Clerk and Parties of Notice of Removal to United States District Court

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  • 11/16/2018
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  • Proof of Service - Proof of Service of Serving Order: Comment: Proof of Service of Serving Order

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  • 11/07/2018
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  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 11/06/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service

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  • 11/06/2018
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  • Proof of Service: Summons DLR (Civil) - Proof of Service of Summons Complaint: Comment: Proof of Service

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  • 11/01/2018
  • View Court Documents
  • Civil Lawsuit Notice - Civil Lawsuit Notice: Comment: 1st CMC set for 2/15/19 at 10am in D5; assigned to Hon. Thomas E. Kuhnle

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  • 11/01/2018
  • View Court Documents
  • Complaint (Unlimited) (Fee Applies) - Complaint (Unlimited) (Fee Applies): Comment: Class-Action Complaint

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  • 11/01/2018
  • View Court Documents
  • Civil Case Cover Sheet - Civil Case Cover Sheet: Comment: COMPLEX

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  • 11/01/2018
  • View Court Documents
  • Summons: Issued/Filed - Summons Issued Filed:

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Complaint Information

E-FILED

GLANCY PRONGAY & MURRAY LLP 11/1/2018 11:27 AM

Lionel Z. Glancy (SBN 134180) Clerk of Court

Marc L. Godino (SBN 182689) Superior Court of CA, Danielle L. Manning (SBN 313272) County of Santa Clara 1925 Century Park East, Suite 2100 18CV337047

Los Angeles, California 90067 Reviewed By: R. Walker

Telephone: (310) 201-9150 Facsimile: (310) 201-9160 E-mail: info@ glancylaw.com

GREENSTONE LAW APC

Mark S. Greenstone (SBN 199606)

1925 Century Park East, Suite 2100

Los Angeles, California 90067 Telephone: (310) 201-9156

Facsimile: (310) 201-9160

E-mail: mgreenstone@ greenstonelaw.com

JAURIGUE LAW GROUP

Michael J. Jaurigue (SBN 208123)

300 West Glenoaks Boulevard, Suite 300 Glendale, California 91202

Telephone: (818) 630-7280

Facsimile: (888) 879-1697

E-mail: michael@jlglawyers.com

Attorneys for Plaintiff John Luna

SUPERIOR COURT FOR THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

JOHN LUNA, as an individual and on behalf of | Case No.:

all others similarly situated,

CLASS-ACTION COMPLAINT

Plaintiff, 1. Violation of California Penal Code § 632.7

DEMAND FOR JURY TRIAL

INTRODUCTION

1. Plaintiff John Luna (“Plaintiff”) brings this class action on behalf of himself and all others similarly situated against Renewal by Andersen LLC, a Minnesota limited liability company, Andersen Corporation, a Minnesota corporation, and DOES 1 through 10 (collectively, “Andersen” or “Defendants”) for the unauthorized recordings of conversations with Plaintiff and Class Members on their respective cellular telephones without their knowledge or consent.

2. The California State Legislature has determined that California citizens’ privacy rights are essential, and passed the California Invasion of Privacy Act, California Penal Code section 630 et seq. (“CIPA”), in 1967 in order to protect those rights. In 1992, the California State Legislature added section 632.7 to CIPA in order to protect persons using cellular and cordless telephones, which were becoming increasingly more popular.

3. Under section 632.7, a recording of any communication made during a telephone call where one of the parties is on a cellular telephone is prohibited unless all of the parties to the communication consent. There is no requirement under section 632.7 that the communication be confidential. Under section 637.2 a person whose communications have been recorded in violation of section 632.7 may bring a civil action for damages and injunctive relief.

4, A's detailed below, Plaintiff alleges that Andersen, an international window and door manufacturing company, has violated section 632.7 by routinely and intentionally recording conversations with consumers on their cellular telephones, without their knowledge or consent.

. Pursuant to sections 632.7 and 637.2, Plaintiff and Class Members are entitled to, inter alia, statutory damages and injunctive relief for Defendant’s violations.

JURISDICTION AND VENUE

0. Jurisdiction. This Court has subject-matter jurisdiction over this action under Penal Code sections 632.7, which prohibits the recording communications without consent, and 637.2, which establishes a private right of action for such recording violations. This Court has personal jurisdiction over the Parties because Defendants have continually and systematically conducted business in the State of California; likewise, Plaintiff’s rights were violated in the State of California and arose out of his contact with Defendants in California. 7. Venue. Venue is proper in this Court because California Code of Civil Procedure section 395 provides that, “[i]f none of the defendants reside in this state . . . , the action may be tried in the superior court in any county that the plaintiff may designate in his or her complaint.” Cal. Civ. Proc. Code § 395(a).

PARTIES

8. Plaintiff is a resident of the County of Santa Clara, in the State of California.

9. Plaintiff is informed and believes, and based thereon alleges, that Andersen Corporation is a Minnesota corporation with its principal place of business located at 100 4™ Avenue North, Bayport, Minnesota 55003.

10. Plaintiff is informed and believes, and based thereon alleges, that Renewal by A ndersen LLC is a Minnesota limited liability company with its principal place of business located at 551 North Main Street, Bayport, Minnesota 55003.

11. Plaintiff is unaware of the true names and capacities of Defendants sued herein under the fictitious names “DOE 1” through “DOE 10.” Plaintiff is informed and believes, and based thereon alleges, that each Defendant acted as the agent, servant, employee, joint venturer, or alter ego of the other Defendants, with the legal authority to act on the others’ behalf, and that the acts and omissions of each Defendant were in accordance with, and represent, the official practice and policy of D efendants. Plaintiff is further informed and believes, and based thereon alleges, that each Defendant acted within the scope of such agency, or ratified each and every act or omission alleged herein. In addition, Plaintiff is informed and believes, and based thereon alleges, that each Defendant aided and abetted each and every act or omission alleged herein. Likewise, Plaintiff is informed and believes, and based thereon alleges, that each Defendant is in some manner intentionally, negligently, or otherwise responsible for each and every act or omission alleged herein. Plaintiff will seek leave of this Court to amend this Complaint once the names and capacities of DOE 1 through DOE 10 become known.

ALLEGATIONS CONCERNING DEFENDANT’'S UNLAWFUL RECORDING

12. Andersen Corporation is an international window and door manufacturing enterprise with $2.5 billion in annual sales for the fiscal year ending in 2016. Renewal by Andersen LLC is a wholly owned subsidiary of Andersen Corporation and, operating under the Renewal by A ndersen brand, offers a comprehensive replacement process that includes in-home consultation, custom manufacturing, and installation through a nationwide network of specialists, including in California.’

13. Onorabout August 25, 2018, Plaintiff requested a consultation with Renewal by Andersen by submitting his contact information through the Renewal by A ndersen website. On or about August 26, 2018, he received a call from a Renewal by Andersen representative to schedule his appointment. Plaintiff is informed and believes, and based thereon alleges, that this call was recorded. At no time was Plaintiff informed that this call was being recorded; nor did Plaintiff provide any consent to be recorded.

14. Plaintiff is informed and believes, and based thereon alleges, that Andersen has a practice and policy of calling consumers who have requested consultations to schedule appointments, and again to confirm the appointment before a representative makes a house call. Plaintiff is further informed and believes, and based thereon alleges, that Andersen has a practice and policy of recording all such outgoing calls, without informing the consumers or obtaining consent from them.

CLASS-ACTION ALLEGATIONS

15. Plaintiff seeks to represent the following class under section 382 of the Code of Civil Procedure: All persons located in California who received an outgoing telephone call from Renewal by Andersen on their respective cellular telephones within one year prior to the filing of the Complaint through the date of class certification. Excluded from the Class are (1) Andersen, any entity or division in which Andersen has a controlling interest, and Andersen’s legal representatives, officers, directors, assigns, and successors; (2) the Judge to whom this case is assigned and the Judge’s staff; and (3) those persons who have suffered personal injuries as a result of the facts alleged herein. Plaintiff reserves the right to amend the Class definition, and to add subclasses, if discovery and further investigation reveal that the Class should be expanded or otherwise modified.

16. Numerosity. Although the exact number of Class Members is uncertain and can only be ascertained through appropriate discovery, the number is great enough such that joinder would be impracticable. The disposition of the claims of these Class Members in a single action will provide

substantial benefits to all parties and the Court. The Class Members are readily identifiable from, inter

! https://en.wikipedia.org/wiki/Andersen Corporation (last visited 10/23/18) alia, information and records in Andersen’s possession, custody, or control.

17. Typicality. The claims of the representative Plaintiff are typical of the claims of the Class in that he, like all Class Members, was called by Andersen on his cellular telephone and his call was recorded without his knowledge or consent. Thus, Plaintiff, like the Class, is entitled to statutory damages of $5,000 per violation pursuant to California Penal Code sections 632.7 and 637.2. Further, the factual bases of Andersen’s misconduct are common to all Class Members and represent a common thread of fraudulent, deliberate, and/or grossly negligent misconduct resulting in injury to all Class Members.

18. Commonality. There are numerous questions of law and fact common to Plaintiff and the Class that predominate over any question affecting only individual Class Members. These common legal and factual questions include the following:

a) Whether Andersen has a policy of recording outgoing calls made to consumers;

b) Whether Andersen has a policy of not disclosing that outgoing calls made to consumers are being recorded; and

C) Whether Andersen’s failure to disclose that outgoing calls made to consumers are being recorded violates section 632.7 of CIPA.

19. Adequate Representation. Plaintiff will fairly and adequately protect the interests of Class Members. Plaintiff has retained attorneys experienced in the prosecution of class actions, including consumer privacy class actions, and he intends to prosecute this action vigorously.

20. Predominance and Superiority. Plaintiff and the Class Members have all suffered irreparable harm as a result of Defendants’ unlawful and wrongful conduct. Absent a class action, most Class Members would likely find the cost of litigating their claims prohibitively high and would therefore have no effective remedy at law. Because of the relatively small size of each individual Class Member's claim, it is likely that only a few Class Members could afford to seek legal redress for Defendant’s misconduct. Absent a class action, Class Members will continue to incur damages, and Defendant’s misconduct will continue without remedy. Class treatment of common questions of law and fact would also be superior to multiple individual actions or piecemeal litigation, since class treatment will conserve the resources of the Court and the litigants and will promote consistency and efficiency of adjudication.

FIRST CAUSE OF ACTION

(Invasion of Privacy: Violation of Cal. Penal Code Section § 632.7)

21. Plaintiff re-pleads, re-alleges, and incorporates by reference each and every allegation set forth above.

22. Penal Code section 632.7, in pertinent part, states that “[e]very person who, without the consent of all parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones [or] a cellular radio telephone and a landline telephone . . . shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year.” Cal. Penal Code § 632.7(a). Thus on its face, section 632.7 precludes the recording of any communications involving a cellular telephone without the consent of all parties to the communication.

23. Plaintiff is informed and believes, and thereupon alleges, that Defendants knowingly violated section 632.7 by intentionally recording outgoing calls made to consumers, including calls with persons using cellular telephones.

24. Penal Code section 637.2 states all persons whose respective communications have been recorded in violation of section 632.7 “may bring a civil action against the person who committed the violation for. . . [f]ive thousand dollars ($5,000) per violation,” as well as “an action to enjoin and restrain any [such] violation.” Id.§ 637.2(a)-(b). Based on the foregoing, Plaintiff and Class Members are entitled to, and below herein do pray for, their statutory remedies and damages, including, but not limited to, those set forth in section 637.2.

25. Since this case is brought for the purpose of enforcing important rights affecting the public interest, Plaintiff and the Class seek recovery of their attorneys’ fees pursuant to the private attorney general doctrine codified in Code of Civil Procedure section 1021.5, or any other applicable statute.

[111] [111]]

28

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays for judgment as follows:

1. An order certifying the Class under California Code of Civil Procedure section 382; 2. $5,000 per violation of section 632.7 for Plaintiff and each member of the Class; 3. Injunctive relief in the form of an order preliminarily and permanently enjoining

Defendants from recording telephone conversations with California residents, including Plaintiff and the Class, without their prior consent;

4, Exemplary or punitive damages;

- ! An award of attorneys’ fees and costs, as allowed by law, including, but not limited to, pursuant to California Code of Civil Procedure Section 1021.5;

6. An award of pre-judgment and post-judgment interest, as provided by law;

% Leave to amend the Complaint to conform to the evidence produced at trial; and 8. Such other relief as may be appropriate under the circumstances. Dated: November 1, 2018 GREENSTONE LAW APC

By: Mark S. Greenstone 1925 Century Park East, Suite 2100 Los Angeles, California 90067

GLANCY PRONGAY & MURRAY LLP

Lionel Z. Glancy

Marc L. Godino

Danielle L. Manning

1925 Century Park East, Suite 2100

Los Angeles, California 90067

JAURIGUE LAW GROUP

Michael J. Jaurigue

300 West Glenoaks Boulevard, Suite 300 Glendale, California 91202

A~ W N O 00 ~ O W

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DEMAND FOR JURY TRIAL

Plaintiff requests a trial by jury as to all causes of action.

Dated: November 1, 2018

GREENSTONE LAW APC

By: 4

Mark S. Greenston 1925 Century Park East, Suite 2100 Los Angeles, California 90067

GLANCY PRONGAY & MURRAY LLP

Lionel Z. Glancy

Marc L. Godino

Danielle L. Manning

1925 Century Park East, Suite 2100

Los Angeles, California 90067

JAURIGUE LAW GROUP

Michael J. Jaurigue

300 West Glenoaks Boulevard, Suite 300 Glendale, California 91202