United States District Court, S.D. California
ALU BANARJI, individually and on behalf of all others similarly situated, Plaintiff,
WILSHIRE CONSUMER CREDIT, Defendant.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT [ECF NO.
Roger T. Benitez United States District Judge.
Alu Banarji initiated this action on December 17, 2014,
alleging a violation of the Telephone Consumer Protection Act
(“TCPA”), 47 U.S.C. § 227, et seq.
She claims that Defendant Wilshire Consumer Credit
(“Defendant” or “WCC”) repeatedly
called her cell phone without her prior express consent. WCC
now moves for partial summary judgment on the issue of
Plaintiff's standing to bring the TCPA claim. (Mot., ECF
No. 64.) For the reasons that follow, the Court DENIES
relevant facts are not in dispute. Sami Banarji,
Plaintiff's father, took out a loan with WCC. On the
application, Sami listed a cell phone number ending 0861 as
his own. In fact, that number belonged to Alu. Alu claims
that she had no involvement with Sami's loan, except to
pay a bill for him on occasion.
point, Sami failed to make a payment to WCC, and WCC began
calling the 0861 number to inquire about the debt. WCC used
an automatic telephone dialing system to dial the 0861
number. Alu received several calls from WCC. She asserts that
she was called constantly and being harassed. The calls
irritated her. She asked WCC to stop calling her cell phone
multiple times, and asked Sami to also convey that message to
judgment is appropriate when “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed.R.Civ.P. 56(a);
see also Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247-48 (1986). In considering a summary judgment motion,
the evidence of the nonmovant is to be believed, and all
justifiable inferences are to be drawn in his or her favor.
Anderson, 477 U.S. at 255.
moving party bears the initial burden of showing there are no
genuine issues of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). It can do so by
negating an essential element of the non-moving party's
case, or by showing that the non-moving party failed to make
a showing sufficient to establish an element essential to
that party's case, and on which the party will bear the
burden of proof at trial. Id. The burden then shifts
to the non-moving party to show that there is a genuine issue
for trial. Id.
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted.” Anderson,
477 U.S. at 248. As a general rule, the “mere existence
of a scintilla of evidence” will be insufficient to
raise a genuine issue of material fact; there must be
evidence on which the jury could reasonably find for the
non-moving party. Id. at 252.
issue before the Court is whether Plaintiff has satisfied the
injury in fact requirement of Article III standing to pursue
her TCPA claim. See Spokeo, Inc. v. Robins, 136
S.Ct. 1540, 1547 (2016) (“[S]tanding consists of three
elements. . . . The plaintiff must have (1) suffered an
injury in fact, (2) that is fairly traceable to the
challenged conduct of the defendant, and (3) that is likely
to be redressed by a favorable judicial decision.”). To
establish an injury in fact, a plaintiff must show that she
“suffered an invasion of a legally protected interest
that is concrete and particularized and actual or imminent,
not conjectural or hypothetical.” Id. (citing
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560
(1992)). Defendant WCC argues that but for the TCPA,
Plaintiff did not suffer a real, concrete injury. It relies
on the Supreme Court's decision in Spokeo, which
explained that a plaintiff does not “automatically
satsif[y] the injury-in-fact requirement whenever a statute
grants a person a statutory right and purports to authorize
that person to sue to vindicate that right.”
Id. at 1549.
Ninth Circuit recently addressed a plaintiff's standing
to bring a TCPA claim in light of Spokeo. See Van Patten
v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir.
2017). In general, the TCPA prohibits anyone from using an
automatic telephone dialing system to make an unsolicited
call to a cell phone number without the called party's
prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii). In
Van Patten, the Ninth Circuit explained that, in
enacting the TCPA, “Congress sought to protect
consumers from the unwanted intrusion and nuisance of
unsolicited telemarketing phone calls and fax
advertisements.” 847 F.3d at 1043 (citing Pub. L.
102-243, § 2, ¶ 12.) The legislature
“identified unsolicited contact as a concrete harm, and
gave consumers a means to redress this harm.”
Id. In rejecting the defendant's challenge to
plaintiff's standing, the Ninth Circuit held that
“[u]nsolicited telemarketing phone calls or text
messages, by their nature, invade the privacy and disturb the
solitude of their recipients. A plaintiff alleging a
violation under the TCPA ‘need not allege any
additional harm beyond the one Congress has
identified.'” Id. (citing Spokeo,
136 S.Ct. at 1549).
case, WCC is not entitled to judgment as a matter of law on
the ground that Plaintiff does not have standing. Plaintiff
has established that she received unsolicited, automated
calls to her cell phone from WCC, which is sufficient to
confer Article III standing under Van Patten.
Plaintiff received five to seven calls a day. (Opp'n,
Decl. of Mona Amini, Ex. A at 66.) The calls disrupted and
bothered her. (Id. at 29, 42, 94.) She testified
that she “kept getting harassed. They kept calling me
constantly.” (Id. ...