Gross v. GG Homes, Inc., No. 3:2021cv00271 - Document 11 (S.D. Cal. 2021)
Court Description: ORDER Granting in Part and Denying in Part Defendant's Motion to Dismiss and/or Strike 6 . Court denies Defendants motion to dismiss as to claims I and II of the FAC and grants the motion as to claims III and IV of the FAC. The Court also denies Defendants motion to strike. Signed by Chief District Judge Dana M. Sabraw on 7/8/2021. (All non-registered users served via U.S. Mail Service)(zda)
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Gross v. GG Homes, Inc. Doc. 11 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 SOUTHERN DISTRICT OF CALIFORNIA 9 10 KIMBERLY GROSS, 11 Plaintiff, 12 13 Case No. 3:21-cv-00271-DMS-BGS ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION TO DISMISS AND/OR STRIKE v. GG HOMES, INC., 14 Defendant. 15 16 Pending before the Court is Defendant GG Homes, Inc.’s motion to dismiss 17 and/or strike Plaintiff Kimberly Gross’ First Amended Complaint. Plaintiff filed an 18 opposition to the motion, and Defendant filed a reply. For the reasons discussed below, 19 the motion to dismiss is granted in part and denied in part, and the motion to strike is 20 denied. 21 I. 22 BACKGROUND 23 A. Procedural History 24 On February 16, 2021, Plaintiff filed her Complaint alleging various violations 25 of the Telephone Consumer Protection Act (“TCPA”). (ECF No. 1.) Defendant filed 26 a motion to dismiss and/or strike the Complaint on March 10, 2021. (ECF No. 3.) On 27 March 29, 2021, Plaintiff filed her First Amended Complaint (“FAC”). (ECF No. 4.) 1 Dockets.Justia.com 1 The FAC alleged the same TCPA violations as the Complaint. (Compare ECF No. 4, 2 at 18–21, with ECF No. 1, at 16–19.) The Court denied Defendant’s motion as moot 3 on April 5, 2021. (ECF No. 5.) 4 On April 12, 2021, Defendant filed a motion to dismiss and/or strike the FAC. 5 (ECF No. 6.) Plaintiff filed a response in opposition on April 28, 2021. (ECF No. 8.) 6 Finally, on March 7, 2021, Defendant filed a reply brief. (ECF No. 10.) 7 B. Factual Allegations 8 The FAC alleges as follows. Defendant is a real estate firm located in San Diego, 9 California. (FAC, ECF No. 4, ¶¶ 33, 36, 42, 43, 46.) Defendant sent the following text 10 message to Plaintiff’s cellular phone eight times between July 26, 2019 and December 11 18, 2020: “Hi Kimberly, it’s Eric with GG Homes. Do you know of any off-market 12 deals or pocket listing [sic] not yet on MLS? We’re looking for fixers in San Diego. 13 Budget is up to $600K. You can TRIPLE END any off market deal you bring us!” (FAC 14 ¶¶ 6, 12, 15, 33, 47–48, 50.) Plaintiff alleges that these messages were sent by Eric 15 Lucas, who she further alleges is an employee of Defendant. (FAC ¶¶ 6, 33.) Plaintiff 16 also appears to allege that Defendant placed telephone calls to Plaintiff’s cell phone 17 number but provides no detail as to the nature of those calls. (FAC ¶¶ 11, 13, 17, 19, 18 41, 43, 46–48, 50, 56–58.) Plaintiff alleges that these calls and texts violated her right 19 to privacy. (FAC ¶¶ 21, 49, 56.) 20 Plaintiff alleges Defendant texted her “directly and through [its] controlled 21 employees or agents.” (FAC ¶ 11.) Plaintiff further alleges that Defendant’s President 22 and CEO instructed its employees to make and send the calls and texts at issue both 23 orally and in writing. (FAC ¶¶ 13, 15, 17, 42.) 24 Plaintiff also alleges Defendant used an Automatic Telephone Dialing System 25 (“ATDS”), or robo-dialer, to send the text messages at issue to her cell phone. (FAC 26 ¶¶ 3, 12, 24, 34–35, 43, 60.) At all relevant times, Plaintiff’s phone number was listed 27 on the National Do Not Call (“DNC”) Registry. (FAC ¶¶ 7, 8, 18, 41.) Plaintiff claims 2 1 that she did not consent to receiving any calls or text messages from Defendant. (FAC 2 ¶ 11, 19, 22, 24, 45, 50.) 3 Based on these calls and texts, Plaintiff filed the present action against Defendant, 4 alleging negligent and intentional violations of the TCPA arising under 47 U.S.C. §§ 5 227(b)(1)(A) and 227(c)(5). (ECF No. 4 at 18–21.) Defendant now moves to dismiss, 6 challenging Plaintiff’s standing to bring this action and arguing Plaintiff has failed to 7 state a claim under the TCPA. (ECF No. 6 at 17–33.) Defendant also moves to strike 8 various allegations in the FAC. (Id. at 34.) 9 II. 10 LEGAL STANDARDS 11 Pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, a party may 12 move to dismiss based on the court’s lack of subject matter jurisdiction. See Fed. R. 13 Civ. P. 12(b)(1). “A federal court is presumed to lack jurisdiction in a particular case 14 unless the contrary affirmatively appears.” Stevedoring Servs. of Am., Inc. v. Eggert, 15 953 F.2d 552, 554 (9th Cir. 1992) (quoting Stock W., Inc. v. Confederated Tribes, 873 16 F.2d 1221, 1225 (9th Cir. 1989)). “Article III of the Constitution confines the federal 17 courts to adjudication of actual ‘Cases’ and ‘Controversies.’” Lujan v. Defs. of Wildlife, 18 504 U.S. 555, 590 (1992). “The Article III case or controversy requirement limits 19 federal courts’ subject matter jurisdiction by requiring, inter alia, that plaintiffs have 20 standing.” Chandler v. State Farm Mut. Auto. Ins. Co., 598 F.3d 1115, 1121–22 (9th 21 Cir. 2010) (citing Allen v. Wright, 468 U.S. 737, 750 (1984)). Consequently, a “lack of 22 Article III standing requires dismissal for lack of subject matter jurisdiction under 23 Federal Rule of Civil Procedure 12(b)(1).” Maya v. Centex Corp., 658 F.3d 1060, 1067 24 (9th Cir. 2011) (emphasis omitted). 25 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 26 Procedure tests the legal sufficiency of the claims asserted in the complaint. See Fed. 27 R. Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). In deciding a 3 1 motion to dismiss, all material factual allegations of the complaint are accepted as true, 2 as well as all reasonable inferences to be drawn from them. Cahill v. Liberty Mut. Ins. 3 Co., 80 F.3d 336, 338 (9th Cir. 1996). A court, however, need not accept all conclusory 4 allegations as true. Rather, it must “examine whether conclusory allegations follow 5 from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 6 1115, 1121 (9th Cir. 1992) (citation omitted); see Benson v. Ariz. State Bd. of Dental 7 Exam’rs, 673 F.2d 272, 275–76 (9th Cir. 1982) (court need not accept conclusory legal 8 assertions). A motion to dismiss should be granted if a plaintiff’s complaint fails to 9 contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. 10 Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the 11 plaintiff pleads factual content that allows the court to draw the reasonable inference 12 that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 13 678 (2009) (citing Twombly, 550 U.S. at 556). However, the complaints of pro se 14 plaintiffs “must be held to less stringent standards than formal pleadings drafted by 15 lawyers” and must be “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) 16 (per curiam); see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 17 III. 18 DISCUSSION 19 A. Standing 20 Defendant challenges whether Plaintiff has constitutional and statutory standing 21 to bring this case. First, Defendant argues Plaintiff has not met the requirements for 22 standing under Article III. Second, Defendant argues Plaintiff is not within the zone of 23 interests Congress intended to protect in passing the TCPA. These arguments are 24 addressed in turn. 25 1. Article III Standing 26 Defendant contends Plaintiff lacks Article III standing to bring a claim under the 27 TCPA. In Spokeo, Inc. v. Robins, the Supreme Court reiterated the “irreducible 4 1 constitutional minimum” of standing under Article III: “[t]he plaintiff must have (1) 2 suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the 3 defendant, and (3) that is likely to be redressed by a favorable judicial decision.” 136 4 S. Ct. 1540, 1547 (2016) (citations omitted). “The plaintiff, as the party invoking 5 federal jurisdiction, bears the burden of establishing these elements.” Id. (citation 6 omitted). Defendant argues that (1) Plaintiff cannot satisfy the injury-in-fact 7 requirement because she consented to receiving communications from Defendant “by 8 voluntarily posting her mobile number online in connection with her real estate 9 business,” and (2) Plaintiff fails to adequately plead that her purported harm is traceable 10 to Defendant’s alleged use of an ATDS or redressable by the Court. (ECF No. 6-1, at 11 17–20 (emphasis omitted).) 12 a. Injury 13 In Spokeo, the Supreme Court held that “[t]o establish injury in fact, a plaintiff 14 must show that he or she suffered ‘an invasion of a legally protected interest’ that is 15 ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’” 16 136 S. Ct. at 1548 (quoting Lujan, 504 U.S. at 560). 17 ‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” 18 Id. (quoting Lujan, 504 U.S. at 560 n.1). In contrast, “[a] ‘concrete’ injury must be ‘de 19 facto’; that is, it must actually exist.” Id. (citing Black’s Law Dictionary 479 (9th ed. 20 2009)) (emphasis in original). “Article III standing requires a concrete injury even in 21 the context of a statutory violation.” Spokeo, 136 S. Ct. at 1549. In general, a plaintiff 22 does not “automatically satisf[y] the injury-in-fact requirement whenever a statute 23 grants a person a statutory right and purports to authorize that person to sue to vindicate 24 that right.” Id. A “bare procedural violation, divorced from any concrete harm,” does 25 not satisfy the injury-in-fact requirement of Article III. Id. However, the Supreme 26 Court recognized that Congress may “‘elevat[e] to the status of legally cognizable 27 injuries concrete, de facto injuries that were previously inadequate in law.’” Id. 5 “For an injury to be 1 (quoting Vt. Agency of Nat. Res. v. U.S. ex rel. Stevens, 529 U.S. 765, 775–77 (2000)) 2 (emphasis in original). “‘Congress has the power to define injuries and articulate chains 3 of causation that will give rise to a case or controversy where none existed before.’” Id. 4 (quoting Lujan, 504 U.S. at 580 (Kennedy, J., concurring)). Therefore, a “violation of 5 a procedural right granted by statute can be sufficient in some circumstances to 6 constitute injury in fact. In other words, a plaintiff in such a case need not allege any 7 additional harm beyond the one Congress has identified.” Id. 8 The TCPA prohibits making “any call . . . using any automatic telephone dialing 9 system . . . to any telephone number assigned to a . . . cellular telephone service” unless 10 the call is “made with the prior express consent of the called party.” 47 U.S.C. 11 § 227(b)(1)(A)(iii). A text message is a “call” within the meaning of the TCPA. 12 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). The TCPA 13 also provides a private right of action to individuals seeking to enjoin or recover 14 damages for violations of the Act or regulations promulgated under its authority. 47 15 U.S.C. § 227(b)(3), 227(c)(5). The regulations promulgated under this statute prohibit 16 “any person or entity” from “initiat[ing] any telephone solicitation” to “wireless 17 telephone numbers” registered on national do-not-call registry. 47 C.F.R. 18 §§ 64.1200(c), 64.1200(e). 19 Here, Plaintiff alleges that Defendant’s calls and texts to the wireless telephone 20 number she registered on the DNC registry invaded her privacy. (FAC ¶ 21, 49, 56.) 21 Plaintiff argues that this invasion of her privacy constitutes an injury-in-fact conferring 22 Article III standing. 23 The Ninth Circuit has held that a single telephone call or text message can be 24 sufficient to satisfy Article III’s injury-in-fact requirement because “[u]nsolicited 25 telemarketing phone calls or text messages, by their nature, invade the privacy and 26 disturb the solitude of their recipients.” Van Patten v. Vertical Fitness Group, LLC, 847 27 F.3d 1037, 1043 (9th Cir. 2017) (holding that “a violation of the TCPA is a concrete, 6 1 de facto injury”). Defendant contends that Plaintiff’s allegations do not satisfy the 2 injury-in-fact requirement because “the texts at issue were neither unsolicited nor 3 consumer messages.” (ECF No. 6-1 at 18.) Defendant argues Van Patten should be 4 read narrowly and only applies to calls to consumers. (Id.) Defendant cites two 5 unpublished district court decisions in support of its argument that Plaintiff’s use of her 6 phone number for business purposes makes her unable to satisfy the injury requirement 7 for Article III standing. Both cases are inapposite. 8 First, Defendant highlights language from Selby v. Ocwen Loan Servicing, LLC, 9 3:17-cv-0973, 2017 WL 5495095, at *3 (S.D. Cal. Nov. 16, 2017), in which the court 10 observed Van Patten “did not hold that receipt of any telephone call satisfies the 11 concrete injury in fact requirement for standing to assert TCPA claims.” However, the 12 calls at issue in Selby related to the defendant’s efforts to collect a debt, not an attempt 13 to initiate a commercial transaction as in Van Patten, or as in the present case. Id. 14 Furthermore, the Ninth Circuit has recognized that “[t]he TCPA is not limited to 15 telemarketing calls” because “Congress recognized unsolicited contact as a concrete 16 harm regardless of caller or content, and this harm is similar in kind to harm that has 17 traditionally been redressable by courts.” Romero v. Department Stores Nat’l Bank, 725 18 F. App’x 537, 539 (9th Cir. 2018) (citing Van Patten, 847 F.3d at 1042–43). 19 Second, Defendant quotes Chennette v. Porch.com, Inc. for the proposition that 20 “[i]t is unfathomable that Congress considered a consumer who files TCPA actions as 21 a business when it enacted the TCPA.” 1:20-cv-00201-SRB, 2020 WL 5511515, at *2 22 (D. Idaho Sept. 2, 2020) (quoting Stoops v. Wells Fargo Bank, N.A., 197 F. Supp. 3d 23 782, 805 (W.D. Pa. 2016)). Stoops involved a repeat TCPA plaintiff who purchased 24 dozens of cell phones “for the purpose of filing lawsuits.” 197 F. Supp. 3d at 778. The 25 court held that plaintiffs like Ms. Stoops who purchase phones solely to manufacture 26 TCPA actions as a business cannot claim that receiving such calls constitute an injury 27 sufficient to establish standing. Id. at 796–804. The Court in Stoops did not hold that 7 1 calls to phone numbers used partially for business reasons cannot generate a 2 constitutionally cognizable injury. The Court therefore declines to follow Chennette’s 3 approach to evaluating injury-in-fact under the TCPA. 4 Defendant also attempts to introduce extrinsic evidence of Plaintiff’s business 5 practices and purported public listing of her phone number online to demonstrate that 6 she consented to Defendant’s calls and texts. (ECF No. 6-1 at 18–19.) In a facial 7 jurisdictional challenge, a court takes all factual allegations in the complaint as true and 8 draws all reasonable inferences in a plaintiffs’ favor. Pride v. Correa, 719 F.3d 1130, 9 1133 (9th Cir. 2013). In considering such challenges, the Court may also “review 10 evidence beyond the complaint without converting the motion to dismiss into a motion 11 for summary judgment” and “need not presume the truthfulness of the plaintiff’s 12 allegations.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1041 (9th Cir. 2004). But 13 “a jurisdictional finding of genuinely disputed facts is inappropriate when the 14 jurisdictional issue and substantive issues are so intertwined that the question of 15 jurisdiction is dependent on the resolution of factual issues going to the merits of an 16 action.” Id. at 1039 (internal quotation omitted). Here, whether Plaintiff gave “express 17 consent” is a necessary requirement of her TCPA claim. 18 227(b)(1)(A)(iii); see also Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 19 1042–43 (9th Cir. 2012) (listing “express consent” as an element of a Section 227(b) 20 claim). It is also the basis of Defendant’s jurisdictional challenge. Therefore, “there is 21 no way that the Court can resolve [Defendant]’s factual attack on the Court’s 22 jurisdiction without also deciding the merits of [Plaintiff]’s TCPA claim.” Aleisa v. 23 Square, Inc., 493 F. Supp. 3d 806, 813 (N.D. Cal. 2020) (holding that it is inappropriate 24 to consider extrinsic evidence offered to attack consent in the context of standing 25 analysis on motion to dismiss because it goes to the merits of plaintiff’s TCPA claim); 26 see also Romero, 725 F. App’x at 539 (citing Van Patten, 847 F.3d at 1043–48) 27 (“Disputes regarding whether [plaintiff] gave prior express consent to receive calls from 8 See 47 U.S.C. § 1 [defendant] or revoked that consent go to the merits of her TCPA claim, not to her 2 standing.”). 3 consideration on a motion to dismiss. 4 5 Accordingly, the Court finds that this issue is inappropriate for In light of these authorities, the Court finds that Plaintiff has sufficiently alleged concrete and particularized injuries to establish Article III standing. 6 b. Traceability and Redressability 7 Defendant further argues Plaintiff fails to plead that her alleged injury is traceable 8 to Defendant’s allegedly unlawful conduct or redressable by Defendant. (ECF No. 6-1 9 at 19–20.) Injury alone is insufficient to establish Article III standing. To confer 10 constitutional standing, an injury must also be “fairly traceable to the challenged action 11 of the defendant,” and it must be “likely ... that the injury will be redressed by a 12 favorable decision.” Lujan, 504 U.S. at 560–61. Here, Plaintiff alleges that Defendant 13 called her cell phone, which is listed in the DNC registry, using an ATDS without her 14 consent. This is sufficient for traceability. See Romero, 725 F. App’x at 538–39 (holding 15 plaintiff demonstrated traceability where defendant used an autodialer to call her cell 16 phone.) The alleged injury is also likely to be redressed by a favorable decision from 17 the Court. Plaintiff has satisfied the requirements for Article III standing as to her claim 18 under 47 U.S.C. § 227(b)(1)(A)(iii). 19 2. Statutory Standing 20 Under the doctrine of statutory standing, a “statutory cause of action extends only 21 to plaintiffs whose interests fall within the zone of interests protected by the law 22 invoked.” Lexmark Int’l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 129 23 (2014) (citation and quotation marks omitted). “Whether a plaintiff comes within ‘the 24 zone of interests’ is an issue that requires [courts] to determine, using traditional tools 25 of statutory interpretation, whether a legislatively conferred cause of action 26 encompasses a particular plaintiff’s claim.” 27 interests test, courts “do not ask whether [. . .] Congress should have authorized 9 Id. at 127. In applying this zone of 1 [plaintiff’s] suit, but whether Congress in fact did so.” Id. at 128. Indeed, the test “is 2 not meant to be especially demanding; in particular, there need be no indication of 3 congressional purpose to benefit the would-be plaintiff.” Clarke v. Sec. Indus. Ass’n, 4 479 U.S. 388, 399–400 (1987). 5 Citing legislative history and regulatory findings from the Federal 6 Communications Commission (“FCC”), Defendant argues that Plaintiff lacks statutory 7 standing to bring this case because the TCPA was not intended to prohibit business 8 communications that were solicited by the recipient. 9 However, the Court need not venture outside the plain text of the TCPA, and the 10 regulations promulgated thereunder to determine what interests Congress protected in 11 enacting the statute. (ECF No. 6-1 at 20–23.) 12 First, the TCPA unambiguously prohibits “any call” made using an ATDS “to 13 any . . . cellular telephone” without express consent. 47 U.S.C. § 227(b)(1)(A)(iii) 14 (emphasis added). The statute does not distinguish between telemarketing calls and 15 calls to businesses. Nor does it distinguish between personal cellular telephones or 16 cellular telephones used for business. The statute further provides that “any person or 17 entity” may bring a cause of action for a violation. Id. § 227(b)(3) (emphasis added). 18 Congress’ inclusion of entities as parties entitled to sue under the private right of action 19 further indicates that the interests of businesses are encompassed within the zone of 20 interests protected by the statute. See Facebook, Inc. v. Duguid, 141 S. Ct. 1163, 1167 21 (2021) (stating “Congress passed the TCPA to address ‘the proliferation of intrusive, 22 nuisance calls’ to consumers and businesses from telemarketers”) (citations omitted 23 and emphasis added). The FAC alleges Defendant texted Plaintiff’s cellular phone using 24 an ATDS without her consent, so Plaintiff falls within the zone of interests protected by 25 the TCPA’s ATDS provisions. 26 Second, the TCPA directs the FCC to promulgate regulations “concerning the 27 need to protect residential telephone subscribers’ privacy rights to avoid receiving 10 1 telephone solicitations to which they object” and to “a single national database to 2 compile a list of telephone numbers of residential subscribers who object to receiving 3 telephone solicitations.” Id. §§ 227(c)(1), 227(c)(3). The TCPA further empowers the 4 FCC with the discretion to “implement the methods and procedures that the 5 Commission determines are most effective and efficient to accomplish the purposes of 6 this section.” Id. § 227(c)(1)(E). Finally, the TCPA provides that “[a] person who has 7 received more than one telephone call within any 12-month period by or on behalf of 8 the same entity in violation of the regulations prescribed under this subsection” may 9 bring an action for injunctive relief, damages, or both. Id. § 227(c)(5). 10 Under this authority, the FCC promulgated rules prohibiting “any telephone 11 solicitation to . . . a residential telephone subscriber who has registered his or her 12 telephone number on the national do-not-call registry.” 47 C.F.R. § 64.1200(c)(2). As 13 previously noted, this regulation is “applicable to any person or entity making telephone 14 solicitations or telemarketing calls to wireless telephone numbers.” Id. § 64.1200(e). 15 The regulation defines ‘telephone solicitation’ as “the initiation of a telephone call or 16 message for the purpose of encouraging the purchase or rental of, or investment in, 17 property, goods, or services, which is transmitted to any person.” Id. § 64.1200(f)(15). 18 This definition does not distinguish between solicitation to businesses and to 19 consumers. Plaintiff’s complaint alleges that Defendant sent texts to her wireless phone 20 number encouraging the purchase of property. As such, Plaintiff falls within the zone 21 of interests protected by the TCPA’s DNC registry provisions. 22 Even if the statute protected a narrower zone of interests than described above, 23 Defendant would be unable to demonstrate that Plaintiff falls outside that zone. Plaintiff 24 alleges that the calls and texts at issue in this case were directed to her personal cell 25 phone and that she did not consent to receiving them. (FAC ¶¶ 7, 11, 19, 45, 50, 60– 26 61.) Defendant relies on evidence extrinsic to the FAC purporting to show that 27 Plaintiff’s cell phone was used for business purposes and that she solicited the 11 1 communications at issue. (ECF No. 6-1 at 22.) However, the Court declines to consider 2 extrinsic evidence at this stage of the proceedings. See Ngheim v. Dick’s Sporting 3 Goods, Inc., 222 F. Supp. 3d 805, 812–13 (C.D. Cal. 2016). Accordingly, the Court 4 finds that Plaintiff has statutory standing to bring her claims under the TCPA. 5 B. Sufficiency of the TCPA Claims 6 Defendant argues the FAC must be dismissed because Plaintiff (1) alleges 7 insufficient facts to support a claim that Defendant is liable for the texts at issue, (2) 8 fails to state a claim for an ATDS violation under Section 227(b) of the TCPA, and (3) 9 fails to state a claim for a DNC violation under Section 227(c) of the TCPA. Defendant’s Liability 10 1. 11 Defendant argues Plaintiff’s TCPA claims must be dismissed because she fails 12 to adequately allege that Defendant physically sent the text messages at issue, and thus 13 fails to plead sufficient facts to find Defendant liable for those texts. (ECF No. 6-1 at 14 23–26.) 15 To be liable under the TCPA, a defendant must “make” or “initiate” the call or 16 text at issue. 47 U.S.C. §§ 227(b)(1)(A)(iii), 227(c)(5); 47 C.F.R. §§ 64.1200(a)(1)(iii), 17 64.1200(c)(2). Congress also delegated the authority to make rules and regulations 18 implementing the TCPA to the FCC. Satterfield, 569 F.3d at 953 (citing 47 U.S.C. § 19 227(b)(2)). Pursuant to this authority, the FCC issued a Declaratory Ruling and Order, 20 providing guidance for determining who makes or initiates a call, in light of the 21 “changes in calling technology.” See In the Matter of Rules & Regulations 22 Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7978–84 (2015) 23 (“FCC Order”), rev’d in part on other grounds by ACA Int’l v. FCC, 885 F.3d 687 (D.C. 24 Cir. 2018). To determine whether a party is the maker of a call, the FCC looks to “the 25 totality of the facts and circumstances surrounding the placing of a particular call to 26 determine: (1) who took the steps necessary to physically place the call; and (2) whether 27 another person or entity was so involved in placing the call as to be deemed to have 12 1 initiated it, considering the goals and purposes of the TCPA.” Id. at 7980; see also In 2 the Matter of the Joint Petition filed by Dish Network, LLC, 28 FCC Rcd. 6574, 6583 ¶ 3 26 (2013) (“a person or entity ‘initiates’ a telephone call when it takes the steps 4 necessary to physically place a telephone call”). Because the TCPA does not define the 5 term “to make any call” and the FCC's interpretation of this provision of the TCPA is 6 reasonable, the Court uses the FCC Order to inform its analysis. See Satterfield, 569 7 F.3d at 953; see also Van Patten, 847 F.3d at 1048 (finding reasonable the FCC’s 8 interpretation of the TCPA in the 2015 FCC Order). 9 Plaintiff alleges Defendant instructed its employee, Eric Lucas, to text Plaintiff. 10 (FAC ¶¶ 6, 11, 13.) More specifically, Plaintiff alleges that GG Homes CEO Paul Eric 11 Green told Mr. Lucas both verbally and via email to send the texts. (FAC ¶¶ 6, 15, 42.) 12 These allegations are sufficient to support Plaintiff’s claims that Defendant made or 13 initiated the texts at issue. The Court therefore finds that Plaintiff has adequately alleged 14 Defendant’s liability in this case. 15 2. Section 227(b) 16 Defendant argues Plaintiff fails to state a claim under Section 227(b) of the 17 TCPA. (ECF No. 6-1 at 26–31.) To state a claim under 47 U.S.C. § 227(b)(1)(a), a 18 plaintiff must plausibly allege “(1) the defendant called a cellular telephone number; (2) 19 using an automatic telephone dialing system; (3) without the recipient’s prior express 20 consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042–43 (9th Cir. 21 2012). Defendant’s argument has three parts. 22 First, Defendant argues Plaintiff’s FAC fails to state a claim because it lacks facts 23 sufficient to allege that Defendant used an ATDS. (ECF No. 6-1 at 27–29.) In Facebook 24 v. Duguid, the Supreme Court recently held that “to qualify as an ‘automatic telephone 25 dialing system,’ a device must have the capacity either to store a telephone number 26 using a random or sequential generator or to produce a telephone number using a 27 13 1 random or sequential number generator.” 141 S. Ct. at 1167. Defendant argues this 2 definition is fatal to Plaintiff’s ATDS claims. The Court disagrees. 3 The newly clarified definition of an ATDS is more relevant to a summary 4 judgment motion than at the pleading stage. See Montanez v. Future Vision Brain Bank, 5 LLC, 20-cv-02959-CMA-MEH, 2021 WL 1697928, at *7 (D. Colo. Apr. 29, 2021). 6 Here, Plaintiff alleges Defendant used an ATDS to send her numerous text messages 7 over the course of a year. (FAC ¶¶ 3, 11, 12, 34–35, 43, 56.) She further alleges that 8 the ATDS Defendant used “has the capability to insert a new name for each person [to 9 whom] it sends spam text messages” and “the capacity to store numbers and dial them 10 automatically.” (FAC ¶¶ 2, 14.) While additional factual details about Defendant’s 11 equipment might be helpful, they are not required at the pleading stage. See In re Jiffy 12 Lube Int’l, Inc., Text Spam Litig., 847 F. Supp. 2d 1253, 1260 (S.D. Cal. 2012). At this 13 stage of the proceedings, particularly under notice pleading standards of Rule 8(a)(2) of 14 the Federal Rules of Civil Procedure, which requires only a “short and plain statement 15 of the claim,” Plaintiff need not include additional details concerning the process by 16 which Defendant’s device stores and produces phone numbers. Plaintiff need not 17 describe the technical details of Defendant’s alleged ATDS at this stage. This issue is 18 appropriately addressed following discovery and on a motion for summary judgment. 19 Second, Defendant argues Plaintiff failed to plead that the texts she received 20 constituted “advertisements” or “telemarketing.” (ECF No. 6-1 at 29–30.) Pursuant to 21 the FCC regulations, ATDS calls to cell phones that either introduce an “advertisement” 22 or constitute “telemarketing” require “prior express written consent of the called party.” 23 47 C.F.R. § 64.1200(a)(2) (emphasis added). Other calls only require express consent— 24 which need not be written. Id. § 64.1200(a)(1). However, this distinction is immaterial 25 because Plaintiff adequately alleges she did not consent to receiving the texts. 26 Third, Defendant argues Plaintiff provided her prior express consent to receive 27 the texts at issue by advertising her cell phone number online. (ECF No. 6-1 at 30–31.) 14 1 Assuming the texts here are not advertisements or telemarketing calls, only “prior 2 express consent” is required to defeat Plaintiff’s claim. 3 § 64.1200(a)(1)(A)(iii); see also Reardon v. Uber Technologies, Inc., 115 F. Supp. 3d 4 1090, 1094 (N.D. Cal. 2015) (holding that “if a text message ‘includes or introduces an 5 advertisement’ or ‘constitutes telemarketing,’ it may only be sent with the recipient's 6 prior express written consent, whereas other texts require only prior express consent to 7 be legal.”). If Plaintiff consented to receiving the texts, her Section 227(b) claims fail. 8 Plaintiff alleges that she did not consent to receiving any calls or texts from 9 Defendant. (FAC ¶¶ 11, 19, 22, 24, 45, 50.) Defendant introduces evidence that 10 Plaintiff posted her cell phone number online in connection with her real estate business, 11 and thus invited business related calls. (ECF No. 6-1 at 31.) Because the parties have 12 yet to conduct discovery, the Court declines to consider Defendant’s evidence at this 13 stage.1 Nothing in the FAC indicates that Plaintiff consented to Defendant’s texts. 14 Therefore, the Court declines to dismiss the Section 227(b) claims on this ground. 15 16 See 47 C.F.R. Because Plaintiff has sufficiently alleged the elements of a Section 227(b) claim, Defendant’s motion to dismiss Counts I and II of the FAC is denied. 3. 17 Section 227(c) 18 Defendant argues Plaintiff failed to state a claim under Section 227(c) of the 19 TCPA. (ECF No. 6-1, at 31–33.) The TCPA directs the FCC to promulgate regulations 20 to protect residential telephone subscribers’ privacy rights. 47 U.S.C. § 227(c)(1)–(2). 21 Pursuant to this authority, 47 C.F.R. § 64.1200(c)(2) prohibits “telephone solicitation” 22 to any “residential telephone subscriber who has registered his or her telephone number 23 on the national do-not-call registry of persons. The TCPA creates a private right of 24 25 26 27 1 Defendant cites Edelsberg v. Vroom, Inc., 16-cv-62734-GAYLES, 2018 WL 1509135 (S.D. Fla. Mar. 27, 2018), as an example of a court finding that voluntarily posting one’s phone number online constitutes express consent under the TCPA. (ECF No. 6-1 at 31.) However, the court in Edelsberg addressed this issue on a motion for summary judgment, not a motion to dismiss. 15 1 action for anyone “who has received more than one telephone call within any 12-month 2 period by or on behalf of the same entity in violation of the [FCC] regulations.” 3 47 U.S.C. § 227(c)(5). 4 First, Defendant argues Plaintiff failed to adequately allege that Defendant 5 “physically” sent the texts at issue. The Court has already rejected this argument. See 6 supra Section II.B.1. Second, Defendant argues the texts in this case do not constitute 7 “telephone solicitation.” The relevant FCC regulation defines “telephone solicitation” 8 as “the initiation of a telephone call or message for the purpose of encouraging the 9 purchase or rental of, or investment in, property, goods, or services.” 47 C.F.R. § 10 64.1200(f)(14). Defendant contends that the texts it allegedly sent to Plaintiff are more 11 akin to an offer of employment than encouragement to purchase or invest in property 12 or services. Defendant cites Freyja v. Dun & Bradstreet, Inc., where the court found 13 that a call “made for the purpose of acquiring information about the commercial services 14 provided by Plaintiff and not to market to Plaintiff or to sell her anything” did not 15 constitute a telephone solicitation as a matter of law. CV 14–7831 DSF, 2015 WL 16 6163590, at *2 (C.D. Cal. Oct. 14, 2015). Here too, the communication at the core of 17 the dispute is targeted at procuring services from Plaintiff. See supra Section II.B.2. 18 Therefore, the texts at issue do not fall within the definition of telephone solicitation 19 under the TCPA and Plaintiff’s Section 227(c) claims are subject to dismissal. Third, 20 Defendant introduces extrinsic evidence to show Plaintiff’s phone was used for business 21 purposes. For the reasons discussed above, the Court declines to consider this evidence 22 at the pleadings stage. See supra Sections II.A.2 and II.B.2. Because the text at issue 23 in this case did not constitute “telephone solicitation” under the TCPA, the Court 24 dismisses counts III and IV of the FAC.2 25 Dismissal of a pro se plaintiff’s complaint is only appropriate where “it is absolutely clear that the deficiencies of the complaint could not be cured by amendment.” Weilbeurg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (quotation omitted). Here, Plaintiff’s FAC contains a verbatim quotation of the text messages at issue. (See FAC 16 2 26 27 1 C. Motion to Strike 2 Defendant argues that various allegations in the FAC are “immaterial” and 3 “impertinent” and should be stricken under Fed. R. Civ. P. 12(f). (ECF No. 6-1 at 34.) 4 Rule 12(f) states that district courts “may strike from a pleading . . . any redundant, 5 immaterial, impertinent, or scandalous matter.” “Immaterial matter is that which has 6 no essential or important relationship to the claim for relief or the defenses being plead.” 7 Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) rev’d on other grounds, 8 510 U.S. 517 (1994) (quotation omitted). “Impertinent matter consists of statements 9 that do not pertain, and are not necessary, to the issues in question.” Id. However, 10 motions to strike are generally disfavored. See Novick v. UNUM Life Ins. Co. of Am., 11 570 F. Supp. 1207, 1208 (C.D. Cal. 2008). Further, “motions to strike are generally not 12 granted unless it is clear that the matter sought to be stricken could have no possible 13 bearing on the subject matter of the litigation.” Lobaton v. City of San Diego, 3:15-cv- 14 1416-GPC-DHB, 2015 WL 7864186, at *4 (S.D. Cal. Dec. 2, 2015) (citation omitted). 15 Defendant asks the Court to strike fifteen paragraphs from the FAC. However, having 16 reviewed the paragraphs at issue and considering Plaintiff’s pro se status, the Court 17 declines to strike them from the FAC. 18 /// 19 /// 20 /// 21 /// 22 /// 23 24 25 26 27 ¶ 6.a.) Because the messages do not constitute telephone solicitations Plaintiff cannot amend her complaint to state a claim. See Airs Aromatics, LLC v. Opinion Victoria’s Secret Store Brand Mgmt., Inc., 744 F.3d 595, 600 (9th Cir. 2014) (holding that “[a] party cannot amend pleadings to directly contradict an earlier assertion made in the same proceeding”) (internal quotation omitted). Therefore, Plaintiff’s Section 227(c) allegations are dismissed with prejudice. 17 1 IV. 2 CONCLUSION 3 For these reasons, the Court denies Defendant’s motion to dismiss as to claims I 4 and II of the FAC and grants the motion as to claims III and IV of the FAC. The Court 5 also denies Defendant’s motion to strike. 6 IT IS SO ORDERED. 7 8 9 Dated: July 8, 2021 ___________________________ Hon. Dana M. Sabraw United States Chief District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 18
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