Raphael Austria v. Does, No. 2:2020cv05019 - Document 111 (C.D. Cal. 2021)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT EGS'S MOTION TO DISMISS 91 by Judge Otis D. Wright, II: For the reasons discussed above, the Court GRANTS IN PART and DENIES IN PART EGSs Motion to Dismiss Plaintiff's Second Amended Complaint 91 . Plaintiff's first claim for violation of the Telephone Consumer Protection Act is DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO AMEND.EGS's motion is otherwise denied. EGS shall answer within twenty-one (21) days. (lc)

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Raphael Austria v. Does Doc. 111 O 1 2 3 4 5 6 7 8 United States District Court Central District of California 9 10 11 12 Plaintiff, 13 14 Case 2:20-cv-05019-ODW (PVCx) RAPHAEL AUSTRIA, ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT EGS’S MOTION TO DISMISS [91] v. ALORICA, INC. et al., 15 Defendants. 16 I. 17 INTRODUCTION Plaintiff Raphael Austria asserts four claims against Defendant EGS Financial 18 19 Care, Inc. (“EGS”) arising from EGS’s debt collection activities. 20 Compl. (“SAC”), ECF No. 76.) 21 Austria’s SAC. (Mot., ECF No. 91.) For the reasons that follow, the Court GRANTS 22 IN PART and DENIES IN PART Defendants’ Motion.1 II. 23 (Second Am. Before the Court is EGS’s Motion to Dismiss FACTUAL BACKGROUND 24 This case arises from EGS’s2 attempts to collect a debt Austria owed related to 25 his account at Credit One Bank. (SAC ¶ 17.) Credit One Bank and EGS had a vendor 26 1 27 28 Having carefully considered the papers filed in connection with the Motion, the Court deemed the matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15. 2 Austria first named Alorica, Inc., rather than EGS, as a Defendant. No one currently disputes that EGS is the properly named Defendant. Dockets.Justia.com 1 agreement under which EGS placed collections calls to collect on Credit One Bank’s 2 outstanding debts. (Id. ¶¶ 18, 36, 45.) 3 In January 2019, Austria began receiving calls on his cell phone in January 4 2019 regarding an alleged debt. (SAC 17.) Over the next seven months, Austria 5 received around 550 calls on his cell phone from 150 different numbers, often 6 multiple times a day. (Id. 20, 34, 35.) The calls persisted despite Austria’s 7 multiple attempts to revoke his consent to being contacted by telephone. (Id. 24, 8 28, 32.) EGS misrepresented or concealed its identity throughout this process. (Id. 9 41–42.) 10 Austria asserts four claims against EGS and Defendants iEnergizer Inc., 11 Sutherland Global Services, Inc., and First Contact LLC for (1) violations of the 12 federal Telephone Consumer Protection Act (“TCPA”), (2) violations of the federal 13 Fair Debt Collection Practices Act (“FDCPA”), (3) violations of the California 14 Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), and intrusion upon 15 seclusion. Austria has since dismissed iEnergizer and Sutherland Global Services; 16 First Contact, for its part, answered on July 27, 2021. (ECF No. 88.) 17 EGS moved to dismiss the SAC for failure to state a claim, and the parties 18 briefed the motion. (Mot.; Opp’n, ECF No. 94; Reply, ECF No. 101.) After the Court 19 took the matter under submission, EGS filed a Notice of Supplemental Authority. 20 (Notice Supp. Authority, ECF No. 107.) 21 materials, the Court rules as follows. 22 III. Having received and reviewed these LEGAL STANDARD 23 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable 24 legal theory or insufficient facts pleaded to support an otherwise cognizable legal 25 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To 26 survive a dismissal motion, a complaint need only satisfy the “minimal notice 27 pleading requirements” of Rule 8(a)(2). Porter v. Jones, 319 F.3d 483, 494 (9th Cir. 28 2003). Rule 8(a)(2) requires “a short and plain statement of the claim showing that 2 1 the pleader is entitled to relief.” The factual “allegations must be enough to raise a 2 right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 3 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (holding that a claim must be 4 “plausible on its face” to avoid dismissal). 5 The determination of whether a complaint satisfies the plausibility standard is a 6 “context-specific task that requires the reviewing court to draw on its judicial 7 experience and common sense.” Iqbal, 556 U.S. at 679. A court is generally limited 8 to the pleadings and must construe all “factual allegations set forth in the 9 complaint . . . as true and . . . in the light most favorable” to the plaintiff. Lee, 10 250 F.3d at 679. However, a court need not blindly accept conclusory allegations, 11 unwarranted deductions of fact, and unreasonable inferences. Sprewell v. Golden 12 State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). 13 sufficient factual allegations “to give fair notice and to enable the opposing party to 14 defend itself effectively,” and the “allegations that are taken as true must plausibly 15 suggest an entitlement to relief, such that it is not unfair to require the opposing party 16 to be subjected to the expense of discovery and continued litigation.” Starr v. Baca, 17 652 F.3d 1202, 1216 (9th Cir. 2011). Ultimately, there must be 18 Where a district court grants a motion to dismiss, it should generally provide 19 leave to amend unless it is clear the complaint could not be saved by any amendment. 20 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 21 1025, 1031 (9th Cir. 2008). Leave to amend “is properly denied . . . if amendment 22 would be futile.” Carrico v. City & County of San Francisco, 656 F.3d 1002, 1008 23 (9th Cir. 2011); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 24 1401 (9th Cir. 1986) (“Leave to amend should be granted unless the court determines 25 that the allegation of other facts consistent with the challenged pleading could not 26 possibly cure the deficiency.”). 27 28 3 IV. 1 DISCUSSION 2 For the following reasons, Austria’s allegations preclude the possibility of relief 3 under the TCPA because EGS’s system is not an automatic telephone dialing system 4 as defined by the TCPA. By contrast, Austria states plausible entitlement to relief on 5 his federal and state debt collection act claims as well as his intrusion upon seclusion 6 claim. 7 A. Telephone Consumer Protection Act claim 8 EGS moves for dismissal of Austria’s TCPA claim on the basis that Austria 9 fails to plausibly allege that EGS used an automatic telephone dialing system 10 (“autodialer”) in violation of the TCPA. (Mot. 5–10.) Under the TCPA, it is unlawful 11 “to make any call . . . using any [autodialer] . . . to any telephone number assigned to 12 a . . . cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). The statute defines 13 an autodialer as “equipment which has the capacity—(A) to store or produce 14 telephone numbers to be called, using a random or sequential number generator; and 15 (B) to dial such numbers.” Id. § 227(a)(1). The parties dispute whether alleging that a 16 system calls a prepopulated list of customers or clients is still sufficient to state a 17 TCPA claim in light of the Supreme Court’s recent opinion in Facebook, Inc. v. 18 Duguid, 141 S. Ct. 1163 (2021). 19 Prior to Facebook, district and reviewing courts had reached different 20 conclusions regarding what exactly was modified by the phrase “using a random or 21 sequential number generator.” 47 U.S.C. § 227(a)(1)(A). The Seventh Circuit 22 identified four possible interpretations of subdivision (A) of the statute: 23 (1) to store telephone numbers using a random or sequential number generator, 24 or to produce telephone numbers using a random or sequential number 25 generator; 26 (2) any storing or producing of telephone numbers to be called, provided that 27 those telephone numbers were previously generated using a random or 28 sequential number generator; 4 (3) to store, generally, telephone numbers to be called, or to produce telephone 1 numbers using a random or sequential number generator; 2 3 (4) any storing or producing of telephone numbers to be called, provided that 4 those telephone numbers are later dialed using a random or sequential 5 number generator. 6 Gadelhak v. AT&T Servs., Inc., 950 F.3d 458, 464–67 (7th Cir. 2020). The district 7 court had adopted the second interpretation, but the Seventh Circuit overruled it and 8 joined the Eleventh and Third Circuits in adopting the first interpretation, while the 9 Second and Ninth Circuits adopted the third.3 The grammatical difference between 10 the first and third interpretations was whether the antecedent phrase “using a random 11 or sequential number generator” only modifies “produce” or if it also modifies 12 “store.” The practical difference was that under the Ninth Circuit’s interpretation a 13 device met the definition of an autodialer as long as it had the capacity to store 14 numbers to be called and dial them automatically, even if it was incapable of using a 15 random or sequential number generator at all. Facebook, 141 S. Ct. at 1168. 16 In addressing this circuit split, the Supreme Court reversed the Ninth Circuit’s 17 holding and explicitly held that “a necessary feature of an autodialer under 18 § 227(a)(1)(A) is the capacity to use a random or sequential number generator to 19 either store or produce phone numbers to be called.” 141 S. Ct. at 1173. This holding 20 effectively strikes interpretation number (3) from the set of four interpretations the 21 Seventh Circuit considered in Gadelhak. What the Supreme Court in Facebook did 22 not do, however, is indicate exactly which of the other three readings discussed by the 23 Seventh Circuit, if any, is the correct one. This distinction is crucial here because if 24 interpretation (1) or (4) is correct, then Austria states a plausible claim, because it is 25 26 27 28 3 See Gadelhak v. AT&T Servs., Inc., 950 F.3d 458 (7th Cir. 2020); Glasser v. Hilton Grand Vacations Co., 948 F.3d 1301 (11th Cir. 2020); Dominguez v. Yahoo, Inc., 894 F.3d 116 (3d Cir. 2018); Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1050 (9th Cir. 2018), abrogated by Facebook, 141 S. Ct. 1163; Duran v. La Boom Disco, Inc., 955 F.3d 279, 281 (2d Cir. 2020), cert. granted, judgment vacated, 141 S. Ct. 2509 (2021), and abrogated by Facebook, 141 S. Ct. 1163. 5 1 plausible that EGS’s system either (1) used a random or sequential number generator 2 to store the phone numbers of Austria and others who owed debts to Credit One Bank, 3 or (4) that EGS’s systems used a random or sequential number generator to determine 4 which of the phone numbers on the list of putative debtors it would call next. If, on 5 the other hand, interpretation (2) is correct, then the Court must dismiss the TCPA 6 without leave to amend, because the numbers EGS called were numbers of customers 7 of Credit One Bank, not numbers generated by a random or sequential number 8 generator. 9 Footnote seven in the Facebook opinion speaks to this question without directly 10 deciding or resolving it. The footnote’s purpose is to address concerns that the Court’s 11 rejection of the Ninth Circuit’s interpretation renders the word “store” in the TCPA 12 definition of an autodialer superfluous. 13 concerns, the Supreme Court explained that the word “store” is meant to cover a 14 broader range of autodialing than simply “produce.” Id. 15 example of an autodialer that “use[s] a random number generator to determine the 16 order in which to pick phone numbers from a preproduced list” and “then store[s] 17 those numbers to be dialed at a later time.” Id. At first brush, this note seems to 18 support interpretation (1) or (4), because it describes a situation where the random or 19 sequential number generator is used either to store the numbers in the preproduced list 20 (interpretation (1)) or to later determine the order in which those predetermined 21 numbers would be called (interpretation (4)). 141 S. Ct. at 1172 n.7. To allay these The Court provided the 22 The citation that immediately follows the Supreme Court’s example, however, 23 tells a different story. The citation is to an amicus brief filed by the Professional 24 Association for Customer Engagement. 25 hypothetical system indeed uses a random number generator to determine the order in 26 which to call numbers on a preproduced list—but that preproduced list was itself a list 27 of phone numbers generated by a random or sequential number generator. Hufnus v. 28 DoNotPay, Inc., No. 20-cv-08701-VC, 2021 WL 2585488, at *1 (N.D. Cal. June 24, In the example in the amicus brief, the 6 1 2021). (“That brief makes clear that the ‘preproduced list’ of phone numbers 2 referenced in the footnote was itself created through a random or sequential number 3 generator.”); In re Portfolio Recovery Assocs., LLC, Tel. Consumer Prot. Act Litig., 4 No. 11md02295 JAH - BGS, 2021 WL 5203299, at *3–*4 (S.D. Cal. Nov. 9, 2021) 5 (same); Timms v. USAA Fed. Saving Bank, --- F. Supp. 3d ---, 2021 WL 2354931, 6 at *6 (D.S.C. 2021) (same); Barry v. Ally Financial, Inc., No. 20-12378, 2021 WL 7 2936636, at *6 (E.D. Mich. July 13, 2021) (same). Thus, the citation itself appears to 8 support interpretation (2) and not interpretations (1) and (4). 9 This Court finds that interpretation (2) is the one that finds most support in the 10 text of the statute, the purpose of the TCPA, and in case law before, after, and 11 including Facebook. As the Supreme Court pointed out in Facebook, the TCPA was 12 drafted because 13 14 15 16 17 18 19 20 Congress found autodialer technology to be uniquely harmful. It threatened public safety by “seizing the telephone lines of public emergency services, dangerously preventing those lines from being utilized to receive calls from those needing emergency services.” H. R. Rep. No. 102–317, p. 24 (1991). Indeed, due to the sequential manner in which they could generate numbers, autodialers could simultaneously tie up all the lines of any business with sequentially numbered phone lines. Nor were individual consumers spared: Autodialers could reach cell phones, pagers, and unlisted numbers, inconveniencing consumers and imposing unwanted fees. 21 141 S. Ct. at 1167. The Court also noted that at the time “most cellular providers 22 charged users not only for outgoing calls but also for incoming calls.” Id. at 1167 n.1. 23 None of these concerns are present in a case where the phone numbers being 24 dialed come from a legitimate list of customer or client contacts rather than the 25 workings of a random or sequential number generator. Austria alleges EGS is calling 26 him as an alleged debtor of Credit One Bank. While it is plausible that EGS is calling 27 other potential debtors of Credit One Bank, it is not plausible that EGS is calling other 28 numbers at random or sequentially. Austria’s allegations therefore present no concern 7 1 that EGS’s system will seize up the telephone lines of public emergency services, tie 2 up the lines of businesses with sequentially numbered phone lines, or cause 3 inconvenience or expense to owners of individual cell or home phone numbers who 4 have nothing to do with Credit One Bank. Facebook, 141 S. Ct. at 1167. 5 Interpretation (2) also comports with the plain language of the statute at least as 6 well as any other interpretation. In reviewing other courts’ detailed attempts to 7 harmonize the disjunctive nature of “store or produce” with the ambiguous placement 8 of the comma and antecedent phrase, this court must bear in mind that at “a purported 9 plain-meaning analysis based only on punctuation is necessarily incomplete and runs 10 the risk of distorting a statute’s true meaning.” U.S. Nat’l Bank of Or. v. Indep. Ins. 11 Agents of Am., Inc., 508 U.S. 439, 454 (1993). This is especially true here, where, as 12 the Seventh Circuit has noted, the comma at issue is “ungrammatical under any 13 interpretation.” Gadelhak, 950 F.3 at 468; see also Facebook, 141 S. Ct. at 1173–75 14 (Alito, J., concurring) (concurring in judgment but cautioning against “heavy reliance” 15 on canons of statutory interpretation). In this case, the interpretive difficulties of the 16 TCPA’s definition of an autodialer are lessened when the phrase “store or produce” is 17 viewed less as two strictly disjunctive prongs and more as a three-word phrase that 18 represents a single, unified concept. This deprioritizes the need to focus on which of 19 the two verbs the antecedent phrase modifies and it prioritizes a more natural reading 20 of the text based on Congress’ intentions. 21 To illustrate this observation, the word “prepare” can be used in the statute as a 22 stand-in for the phrase “store or produce”—not to replace Congress’ words, but to 23 demonstrate how the interpretive problems are solved when the phrase is viewed as a 24 single concept. Thus, for the sake of illustration, the statute would read “prepare 25 numbers to be called, using a random or sequential number generator.” 26 First, in this iteration, the reasons for the comma and its placement are clear and 27 unambiguous: the comma’s purpose is to separate “called” from “using” in order to 28 indicate that Congress meant “prepare numbers using a random or sequential number 8 1 generator and then later call them,” not “prepare numbers, which will later be called 2 using a random or sequential number generator.”4 3 Viewing “store or produce” as a single concept also addresses the Seventh 4 Circuit’s concern that interpretation (2) requires courts to add a word that is not there. 5 Gadelhak, 950 F.3d at 465–66. 6 antecedent phrase modifies the singular concept of “store or produce,” with no need to 7 add a word for the sake of grammar. Interpretation (2) is also fully consistent with 8 Facebook itself, and it is as consistent as practically possible with Facebook footnote 9 seven, because it both acknowledges that “store or produce” was meant to cover all 10 the ways that a phone number might be generated using a random or sequential 11 number generator while avoiding rendering “store” superfluous. Rather than modifying “telephone numbers,” the Interpretations (1) and (4), on the other hand, lead to absurdities. 12 Under 13 interpretation (1), the prohibited action is storing a phone number using a random or 14 sequential number generator. This definition is broad, vague, and unworkable. To 15 illustrate, suppose Company A has a list of customer phone numbers that it places into 16 spreadsheet software (such as Excel) as individual line items. In most spreadsheet 17 programs, the sheet lines are numbered, and a band on the left side of the screen 18 provides a sequential list of numbers, such that in Company A’s spreadsheet, each 19 customer phone number corresponds to a sequential line number. Company A saves 20 the Excel chart onto its hard drive. Technically speaking, the company has stored its 21 pre-existing phone numbers by making use of a sequential number-generating feature 22 in Excel, thus satisfying the first prong of the TPCA. If Company A later uses that 23 Excel chart to call its customers, it has technically violated the TCPA. That this is a 24 TCPA violation is illogical, not only because these actions are far afield from 25 Congress’ stated concerns in passing the TCPA, but also because one is left wondering 26 exactly what Company A did wrong in this hypothetical. 27 28 4 This second reading is likely foreclosed by Facebook in any case. 9 1 By contrast, suppose Company B does the same thing, except it saves its 2 customer phone numbers to a word processing document, which does not generate a 3 sequential list of numbers to accompany the customer phone numbers. Company B 4 can call the customers on that list without incurring TCPA liability. Yet, there is no 5 logical or legal reason why Company A should incur TCPA liability but Company B 6 should not. These fine distinctions have nothing to do with any of the reasons 7 Congress passed the TCPA, and the fact that Austria’s proffered interpretation leads 8 the Court into this territory is strong evidence that Austria’s interpretation is far afield 9 from Congress’ intentions. 10 Similar problems arise with interpretation (4). Moreover, interpretation (4) 11 appears to be most at odds with the comma. If Congress had intended interpretation 12 (4), then excluding the comma would have made it much clearer that what was meant 13 was “dialed using a random or sequential number generator,” not “stored or produced 14 using a random number generator.” And in any case, although the Facebook Court 15 was not directly analyzing whether interpretation (4) was proper, its holding that 16 “using a random or sequential number generator” applies to both “store and produce” 17 seems to preclude any reasonable argument that “using a random or sequential number 18 generator” somehow also or alternatively applies to “dialed.” 141 S. Ct. at 1173. 19 Accordingly, this Court concludes that interpretation (2) is proper, which 20 requires dismissal of Austria’s TCPA claim. This conclusion is in accord with district 21 courts in the Ninth Circuit who, following Facebook, have dismissed very similar 22 TCPA claims at the pleading stage. One district court in the Ninth Circuit found that a 23 platform was not an autodialer because “the platform only contacts phone numbers 24 specifically provided by consumers during [the defendant’s] registration process, and 25 not phone numbers identified in a random or sequential fashion.” Hufnus, 2021 WL 26 2585488, at *1. Another court found the same, noting that the “preproduced list” in 27 Facebook footnote 7 “is one that is ‘sequentially generated and stored’” and requiring 28 the same of a TCPA defendant’s system. Barry, 2021 WL 2936636, at *6; see also In 10 1 re Portfolio Recovery Assocs., 2021 WL 5203299, at *4; Timms, 2021 WL 2354391, 2 at *7. This Court joins these courts in finding that a system that selects phone 3 numbers from a prepopulated list does not constitute an autodialer where the 4 prepopulated list was not itself generated using a random or sequential number 5 generator, even if the phone number selection process itself involves a random or 6 sequential number generator. Here, Austria alleges at most that EGS used a random or 7 sequential number generator in selecting or dialing his number from a prepopulated 8 list; he does not allege that his name was on that prepopulated list due to the work of a 9 random or sequential number generator. 10 For these reasons, the Court GRANTS EGS’s Motion to Dismiss Plaintiff’s 11 claim for violations of the TCPA. As Plaintiff’s claim is fundamentally grounded on 12 the allegations that EGS, a debt collector, obtained Austria’s number from Credit One 13 Bank and not by using a random or sequential number generator, any further 14 amendment of this claim would be futile. Dismissal is therefore WITHOUT LEAVE 15 TO AMEND. Carrico, 656 F.3d at 1008. 16 B. Federal and state debt collection act (FDCPA and Rosenthal Act) claims 17 EGS also moves to dismiss Austria’s FDCPA and Rosenthal Act claims, 18 asserting that the SAC fails to allege that EGS regularly engages in debt collection or 19 that its principal purpose is debt collection. (Mot. 10–11.) The FDCPA applies to 20 “debt collectors,” which it defines as either (1) “any person who uses any 21 instrumentality of interstate commerce or the mails in any business the principal 22 purpose of which is the collection of any debts” (the “principal purpose” definition), 23 or (2) any person “who regularly collects or attempts to collect, directly or indirectly, 24 debts owed or due or asserted to be owed or due another” (the “regularly collects” 25 definition). McAdory v. M.N.S. & Assocs., LLC, 952 F.3d 1089, 1093 (9th Cir. 2020) 26 (citing 15 U.S.C. § 1692a(6)), cert. denied sub nom. DNF Assocs., LLC v. McAdory, 27 141 S. Ct. 627 (2020). “The FDCPA uses the phrase ‘principal purpose’ to refer to a 28 business’s most important goal or objective,” and debt collection is not a business’s 11 1 principal purpose if debt collection is merely incidental to the business’s objectives. 2 Id. 3 collection is among the business’s regular activities. Id. The “regularly collects” prong, on the other hand, concerns whether debt 4 The Rosenthal Act’s definition of a “debt collector” is broader and more 5 inclusive than the FDCPA’s, Robinson v. Managed Accts. Receivables Corp., 654 F. 6 Supp. 2d 1051, 1060 n.8 (C.D. Cal. 2009), and includes “any person who, in the 7 ordinary course of business, regularly, on behalf of himself or herself or others, 8 engages in debt collection,” Cal. Civ. Code § 1788.2(c). 9 First, Austria sufficiently alleges that EGS is a debt collector under the FDCPA 10 “principal purpose” definition. The question is simply whether it is plausible that debt 11 collection is EGS’s “dominant, or principal, objective.” McAdory, 952 F.3d at 1093. 12 The answer is yes: Austria alleges that EGS had a business relationship with Credit 13 One Bank under which Credit One compensated EGS for collecting debts. Austria 14 also alleges that EGS used a complex automated telephone system to collect those 15 debts and that EGS, in its calls, expressly represented that they were calling to collect 16 that debt. Moreover, in contacting Austria, EGS obscured the difference between 17 EGS and Credit One, the entity to whom Austria purportedly owed debt. Under these 18 facts, it is plausible that EGS’s principal purpose was debt collection. 19 Austria also sufficiently alleges that EGS is a debt collector under the FDCPA 20 “regularly collects” definition. As alleged, EGS had a vendor agreement with Credit 21 One Bank, and was hired by Credit One to make collection calls on behalf of Credit 22 One. Over the course of several months, Austria received hundred of calls on his cell 23 phone from EGS representatives stating their intent to collect an alleged debt related 24 to his account at Credit One Bank. Under these facts, it is plausible that EGS makes 25 similar attempts with other debtors and therefore regularly collects debts. 26 The Rosenthal Act’s definition of debt collector is broader than the FDCPA’s. 27 Robinson, 654 F. Supp. 2d at 1060 n.8. As Austria’s allegations regarding EGS’s 28 12 1 status as a debt collector are sufficient under the FDCPA, they are sufficient under the 2 Rosenthal Act as well. For these reasons, the Court DENIES EGS’s motion as to Plaintiff’s claims 3 4 under the FDCPA and Rosenthal Act. 5 C. Intrusion upon seclusion claim 6 Finally, EGS moves to dismiss Austria’s claim is for intrusion upon seclusion. 7 (Mot. 11–12.) Under California common law, intrusion upon seclusion is actionable 8 “if the intrusion would be highly offensive to a reasonable person.” Deteresa v. Am. 9 Broad. Cos., 121 F.3d 460, 465 (9th Cir. 1997). Courts have repeatedly found that 10 “unwanted calls, received at inconvenient times, generally invade an individual’s 11 privacy and right to be let alone.” Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 12 795, 802 (9th Cir. 2017) (citing Restatement (Second) of Torts § 652B (1977)). “To 13 state a claim for intrusion upon seclusion under California common law, a plaintiff 14 must plead that (1) a defendant intentionally intruded into a place, conversation, or 15 matter as to which the plaintiff has a reasonable expectation of privacy, and (2) the 16 intrusion occurred in a manner highly offensive to a reasonable person.” In re 17 Facebook, Inc. Internet Tracking Litig., 956 F.3d 589, 601 (9th Cir. 2020) (cleaned 18 up), cert. denied sub nom. Facebook, Inc. v. Davis, 141 S. Ct. 1684 (2021). EGS 19 moves to dismiss this claim on the grounds that Austria does not sufficiently allege 20 (1) that EGS intended to intrude, (2) that EGS violated any reasonable expectation of 21 privacy, or (3) that EGS’s conduct was highly offensive under California law. EGS is 22 incorrect on each point. 23 EGS first argues that the SAC’s allegations regarding its own intent are 24 deficient because Austria “fails to allege that EGS had actual knowledge of any desire 25 not to be contacted by phone regarding his Credit One Bank Account.” (Mot. 11–12.) 26 EGS’s argument rests on the assumption that its alleged intrusions into Austria’s 27 privacy cannot be intentional unless and until EGS had actual knowledge that Austria 28 had revoked consent to have his privacy invaded in that way. EGS provides no 13 1 authority for this assumption, and in any case, it appears contrary to California law. 2 Shulman v. Grp. W Prods., Inc., 18 Cal. 4th 200, 232 (1998) (noting that merely 3 violating a zone of physical or sensory privacy around the plaintiff constitutes 4 actionable intrusion). 5 EGS then argues that Austria fails to allege he had “a reasonable expectation 6 that he would not be contacted by Defendant” because the calls were related to his 7 Credit One account, meaning Austria should have expected that he might be contacted 8 in connection with that account. (Mot. 12.) This assertion is contrary to case law 9 because “[r]epeated and continuous phone calls in an attempt to collect a debt give 10 rise to a claim for intrusion upon seclusion.” Inzerillo v. Green Tree Servicing LLC, 11 No. 13-cv-06010-MEJ, 2014 WL 1347175, at *4 (N.D. Cal. Apr. 3, 2014). Austria 12 plausibly claims a reasonable expectation in the privacy interest that EGS invaded 13 when it repeatedly called him over the course of several months. 14 Finally, EGS argues that Austria fails to allege EGS’s conduct was highly 15 offensive to a reasonable person because EGS was simply making phone calls related 16 to an account that Plaintiff opened. (Mot. 12.) EGS’s argument, however, fails to 17 address the allegations in the SAC regarding the invasive nature of the timing, 18 volume, and frequency of the phone calls. The mere fact that an individual may owe a 19 debt does not mean that individual has revoked his common law right to be free of 20 offensive intrusions upon his seclusion. Austria sufficiently alleges that EGS engaged 21 in highly offensive conduct for the purpose of this claim. The Court therefore DENIES EGS’s Motion to Dismiss as to Austria’s claim 22 23 for intrusion upon seclusion. 24 /// 25 /// 26 /// 27 /// 28 /// 14 V. 1 CONCLUSION 2 For the reasons discussed above, the Court GRANTS IN PART and DENIES 3 IN PART EGS’s Motion to Dismiss Plaintiff’s Second Amended Complaint. (ECF 4 No. 91.) Plaintiff’s first claim for violation of the Telephone Consumer Protection 5 Act is DISMISSED WITH PREJUDICE and WITHOUT LEAVE TO AMEND. 6 EGS’s motion is otherwise denied. EGS shall answer within twenty-one (21) days. 7 8 IT IS SO ORDERED. 9 10 December 16, 2021 11 12 13 _________________________________ OTIS D. WRIGHT, II UNITED STATES DISTRICT JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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