United States District Court, C.D. California
Attorneys for Plaintiffs: Not Present.
Attorneys for Defendants: Not Present.
Honorable ANDRÉ BIROTTE JR.
CIVIL MINUTES - GENERAL
Proceedings: [In Chambers] Order DENYING Motion Seeking Permission for Interlocutory Appeal, or in the Alternative, for Reconsideration
Before the Court is Defendant Verengo, Inc.'s (" Defendant") Motion Seeking Permission for Interlocutory Appeal, or in the Alternative, for Reconsideration (" Motion, " docket no. 89). Plaintiffs Shahar Lushe and William Youngblood (" Plaintiffs") filed an Opposition and Defendant filed a Reply. The Court previously took the Motion under submission. For the following reasons, the Court DENIES the Motion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On October 22, 2014, the Court issued an Order denying Defendant's Motion for Summary Judgment. See Order, docket no. 78. That Order sets forth the background of this case in detail, so the Court will not repeat that material. The Court incorporates that Order herein by reference.
Defendant now moves for permission to seek interlocutory appeal of two decisions the Court rendered in the Order, or, in the alternative, for reconsideration of one of the decisions. At issue are the Court's determinations that Plaintiffs claims for violation of the Telephone Consumer Privacy Act (" TCPA"), 47 U.S.C. § 227 et seq., insofar as they are premised on a classical theory of agency or apparent agency, survived the Motion. Defendant now contends that the legal standards for establishing both kinds of agency are unsettled and asks the Court to certify those aspects of the Order for interlocutory review. Alternatively, Defendant seeks reconsideration of the Court's ruling on apparent authority. Defendant contends that a Ninth Circuit case issued after the briefing on the summary judgment motion closed establishes that detrimental reliance is an element of apparent authority, and that Plaintiff has no evidence of apparent authority, so that theory of liability fails.
A. Legal Standard for Certifying an Order for Interlocutory Review
The Court is authorized to certify interlocutory orders for appeal when the order (1) " involves a controlling question of law"; (2) " as to which there is substantial ground for difference of opinion"; and (3) when " an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b).
B. Interlocutory Review of the Court's Decision on Classical Agency Is Not Warranted.
Defendant has not demonstrated that there is a substantial ground for difference concerning the legal standard for classical agency. The plain language of the TCPA assigns civil liability to the party who " makes" a call. See, e.g., 47 U.S.C. § 227(b)(1)(A) (" It shall be unlawful for any person within the United States . . . to make any call . . ."). There is no dispute that federal common law principles of agency apply such that sellers like Defendant who did not make calls themselves may be held liable for calls their agents make for them. In the Matter of the Joint Petition Filed by Dish Network, LLC, et al., 28 F.C.C. Rcd. 6574, 6574 (2013) (a seller that itself has not made a call within the meaning of the TCPA " nonetheless may be held vicariously liable under federal common law principles of agency for violations . . . that are committed by third-party telemarketers.') Nor does Defendant challenge that " [p]otential liability under general agency-related principles extend beyond classical agency" to include liability based upon apparent ...