United States District Court, N.D. California
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND TO STRIKE;
AFFORDING PLAINTIFF LEAVE TO AMEND RE: DKT. NO. 43
M. CHESNEY United States District Judge.
Dkt. No. 43 Before the Court is defendant Monterey Financial
Services, Inc.'s "Motion for Summary Judgment [and]
to Strike Plaintiff's Class Allegations, " filed May
13, 2016. Plaintiff Edith Dixon has filed opposition, to
which defendant has replied. Having read and considered the
papers filed in support of and in opposition to the motion,
the Court rules as follows.
following facts are undisputed.
November 14, 2014, plaintiff engaged the services of Aamco
Transmissions & Total Car Care and was billed $2274.76.
(See Lucas Decl. Ex. A at 2.) To pay for the
services, she signed an agreement titled "FlexPay Plus
ACH Debit Authorization" ("the Contract"), in
which she agreed to pay $1264.96 as a down payment and
authorized Kahuna Payment Solutions to debit the sum of
$190.15 from her bank account each month, for a total of
twelve months. (See id. Ex. A at 1.) When she
executed the Contract, plaintiff provided a telephone number
ending in "1147" (see id.), which is a
cellular telephone number (see Little Decl., filed
May 13, 2016, Ex. A at 3.) On November 18, 2014, the Contract
was "assigned" to defendant "for
servicing." (See Lucas Decl. Ex. B.) Defendant
thereafter "placed certain telephone calls, both manual
and autodialed, to the phone number [p]laintiff provided in
the Contract" (see id. ¶ 7), including
calls made on May 7, 2015, May 19, 2015, and May 22, 2015
(see id. Ex. C at 19-21).
the call made to plaintiff on May 7, 2015, plaintiff told
defendant's representative, "I have, um, an attorney
Todd Friedman, who helps me with, um, consumer mistreatment
the way I'm being treated, " and "[w]hat
I'm going to do is contact Todd Friedman and have him
contact you guys." (See Friedman Decl. Ex.
the call made to plaintiff on May 19, 2015, plaintiff told
defendant's representative, "I asked you guys not to
call me and you can contact my attorney." (See
id. Ex. B.) When the representative then asked plaintiff why
defendant needed to contact her attorney, plaintiff stated,
"Because I'm turning this over to an attorney,
" and "because you guys keep calling me."
the call made to plaintiff on May 22, 2015, plaintiff told
defendant's representative, "I am asking you to not
call me anymore and contact Mr. Friedman." (See
Little Decl., filed June 3, 2016, Ex. A.) Defendant did not
thereafter call plaintiff. (See Lucas Decl. ¶
operative complaint, the First Amended Complaint
("FAC"), plaintiff alleges defendant violated the
Telephone Consumer Protection Act ("TCPA") when,
after she "revoked her consent to be called by
[d]efendant" (see FAC ¶ 8),
"[d]efendant continued to call [p]laintiff on her
cellular telephone" (see FAC ¶ 8), using
an "automatic telephone dialing system"
(see FAC ¶ 9). Based on said allegations,
plaintiff alleges two causes of action, titled, respectively,
"Negligent Violations of the [TCPA]" and
"Knowing and/or Willful Violations of the [TCPA]."
Plaintiff seeks to proceed on her own behalf and on behalf of
a nationwide class. By the instant motion, defendant argues
it is entitled to summary judgment on plaintiff's TCPA
claims, or, in the alternative, that the class action
allegations should be stricken.
Motion for Summary Judgment
to Rule 56 of the Federal Rules of Civil Procedure, a
"court shall grant summary judgment if the movant shows
that there is no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of
law." See Fed.R.Civ.P. 56(a).
Supreme Court's 1986 "trilogy" of Celotex
Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v.
Liberty Lobby, Inc., 477 U.S. 242 (1986), and
Matsushita Electric Industrial Co. v. Zenith Radio
Corp., 475 U.S. 574 (1986), requires that a party
seeking summary judgment show the absence of a genuine issue
of material fact. Once the moving party has done so, the
nonmoving party must "go beyond the pleadings and by
[its] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial."
See Celotex, 477 U.S. at 324 (internal quotation and
citation omitted). "When the moving party has carried
its burden under Rule 56[ ], its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts." Matsushita, 475 U.S. at 586.
"If the [opposing party's] evidence is merely
colorable, or is not significantly probative, summary
judgment may be granted." Liberty Lobby, 477
U.S. at 249-50 (citations ...