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Ramon Gutierrez and Clariza Gutierrez, On Behalf of Themselves and All Others Similarly Situated v. Barclays Group D.B.A. Barclaycard

February 9, 2011

RAMON GUTIERREZ AND CLARIZA GUTIERREZ, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
BARCLAYS GROUP D.B.A. BARCLAYCARD, D.B.A. BARCLAYS BANK, D.B.A. BARCLAYS BANK DELAWARE D.B.A. BARCLAYS BANK OF DELAWARE, N.A., ET AL., DEFENDANT.



The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

[Docket No. 22]

This case comes before the Court on Defendant's motion for summary judgment. Plaintiffs have filed an opposition to the motion, and Defendant has filed a reply. After thoroughly reviewing the parties' briefs and supporting evidence, and the relevant case law, the Court denies the motion.

I. BACKGROUND

In September 2009, Plaintiff Ramon Gutierrez applied for a credit card account from Defendant Barclays. In the account application, Mr. Gutierrez listed two telephone numbers: (909) 702-5919 as his home phone number and (909) 569-7913 as his work phone number. Although Mr. Gutierrez listed the 5919 number as his home number, the number did not correspond to a land line to his home. Rather, that number belonged to a cellular phone belonging to his wife, Plaintiff Clariza Gutierrez. The 7913 number corresponded to Mr. Gutierrez's cellular phone.

In October 2009, Defendant approved Mr. Gutierrez's application and issued two separate credit cards for the account. One card was issued to Mr. Gutierrez, and the other card was issued to Mrs. Gutierrez as an authorized user. Mrs. Gutierrez was responsible for managing the account, which included reviewing and paying the bills and communicating with Defendant on all account matters.

Plaintiffs made purchases on the account, but failed to make timely payments, therefore the account became delinquent. At that time, Defendant began making collection calls to the two telephone numbers associated with the account, the 5919 number and the 7913 number. Defendant also sent text messages to the 7913 number. In response to one of the text messages, Mr. Gutierrez asked Defendant to stop sending text messages. Defendant ceased all collection activity on the account as of May 13, 2010.

On May 12, 2010, Plaintiffs filed the present case on behalf of themselves and all others similarly situated. They allege one claim for negligent violation of the Telephone Consumer Protection Act ("TCPA") and one claim for willful violation of the TCPA.

II. DISCUSSION

Defendant moves for summary judgment on both of Plaintiffs' claims. It raises three arguments. First, Defendant argues it had prior express consent to call Plaintiffs at the numbers provided on the application, therefore it did not violate the TCPA. Second, Defendant asserts Mrs. Gutierrez is not a "called party" under the TCPA, therefore she lacks standing to pursue her claims. Third, Defendant contends neither Plaintiff was charged for the calls or text messages, therefore there was no violation of the TCPA.

A. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or other evidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). B. Prior Express Consent

The TCPA makes it unlawful: for any person within the United States, or any person outside the United States if the ...


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