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Meyer v. Capital Alliance Group

United States District Court, S.D. California

November 6, 2017

DAVID MEYER et. al., Plaintiffs,
CAPITAL ALLIANCE GROUP et. al., Defendants.



         In this action, Plaintiffs allege they received unlawful facsimile advertisements and telemarketing calls in violation of the Telephone Consumer Protection Act (“TCPA”) and other federal and state statutes and regulations. Pending before the Court are cross-motions for partial summary judgment and a motion to dismiss the Second Amended Complaint (“SAC”). As explained below, Defendants' summary judgment motion is GRANTED-IN-PART, their motion to dismiss is GRANTED-IN-PART, and Plaintiffs' summary judgment motion is DENIED. Ultimately only Claims One and Three, both under the TCPA, remain from the Second Amended Complaint.

         I. Case Summary

         Plaintiffs David Meyer, Arnie Katz, and Ken Moser are individual business owners who maintain fax and telephone lines in furtherance of their businesses.[1] According to Plaintiffs, Defendant Capital Alliance Group, in its various formulations, is engaged in the business of advertising small business loans through third-party companies, which then illegally sent “junk faxes” and initiated telemarketing “robocalls” on its behalf.[2] All three plaintiffs received several junk faxes, which they allege ultimately traced back to Defendants. Plaintiff Moser also received telemarketing calls on his mobile telephone, which he alleges traced back to Defendants. Plaintiffs brought this action under various state and federal statutes and regulations and ultimately seek treble damages and attorneys' fees based on what they allege is Defendants' longstanding, willful, and knowing pattern of violative conduct. Trial is scheduled to commence on December 4, 2017.

         II. Discussion

         A. Defendants' Motion for Partial Summary Judgment (Doc. No. 50)

         1. Legal Standard

         “A party may move for summary judgment, identifying each claim or defense - or the part of each claim or defense - on which summary judgment is sought. The court shall grant summary judgment if the movant shows 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). The party seeking summary judgment bears the initial burden of establishing the basis for its motion and of identifying the portions of the declarations, pleadings, and discovery that demonstrate absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The party opposing summary judgment cannot “‘rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that ‘sets forth specific facts showing that there is a genuine issue for trial.'” Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008), cert. denied, 555 U.S. 827 (2008) (quoting Fed. R. Civ. P 56(e)).

         The moving party has “the burden of showing the absence of a genuine issue as to any material fact, and for these purposes the material it lodged must be viewed in the light most favorable to the opposing party.” Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); see also Tolan v. Cotton, 572 U.S.___, 134 S.Ct. 1861, 1866 (2014). A fact is material if it could affect the outcome of the suit under applicable law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248.

         2. Claims Two, Seven, and Eight

         a. Claims Two (Cal. Bus. & Prof. Code § 1758.41, Junk Fax Law) and Eight (Cal. Bus. & Prof. Code §§ 17200 et seq., Unfair Competition Law)

         Defendants contend Plaintiffs lacks standing to bring both Claim Two (the so-called “Junk Fax Law, ” Cal. Bus. Prof. Code § 1758.41)[3] and Claim Eight (California's Unfair Competition Law (“UCL”), Cal. Bus. Prof. Code §§ 17200 et seq.) because they lack the measurable economic damages that both statutes require. (Doc. No. 48 at 16-17; Doc. No. 50 at 12.)[4] Defendants are correct.

         Although an alleged violation of the TCPA is enough to bestow standing under federal law, Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1042 (9th Cir. 2017), the UCL and FAL have a “more limited standing requirement” than the general standing requirement for federal claims, id. at 1048. “Because elements for standing ‘are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.'” Troyk v. Farmers Grp., Inc., 90 Cal.Rptr.3d 589, 622 (Cal.Ct.App. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

         To demonstrate standing under the UCL and FAL, Plaintiffs must “(1) establish a loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of, i.e., caused by, the unfair business practice or false advertising that is the gravamen of the claim.” Kwikset Corp. v. Superior Court, 246 P.3d 877, 885 (Cal. 2011) (emphasis in original).

         The UCL and FAL's “economic injury requirement is ‘more restrictive than federal injury in fact' because it encompasses fewer kinds of injuries.” Van Patten, 847 F.3d at 1048-49 (quoting Kwikset, 246 P.3d at 886). To satisfy California's statutory injury-in-fact requirement, a plaintiff must show “a personal, individualized loss of money or property in any nontrivial amount.” Kwikset Corp., 246 P.3d at 887.

         Although this bar is not high, trivial, de minimis, or non-existent alleged injuries are not sufficient and do not constitute injury-in-fact for UCL and FAL standing. Kwikset Corp., 246 P.3d at 887 (requiring “nontrivial amount”; noting that where California courts have found standing present, “the plaintiff could allege or prove an identifiable monetary or property injury.”). For example, in Van Patten, the Ninth Circuit found that the plaintiff's receipt of an unwanted text was sufficient to confer Article III standing, but not enough for standing under the UCL. 847 F.3d at 1043, 1049. There, the only economic injury plaintiff alleged was that he was required to pay for receiving defendant's text messages, but the evidence showed that his cell phone plan allowed unlimited messaging, meaning that he had no measurable economic loss. Id. at 1049; see also Reichman v. Poshmark, Inc., No. 16-CV-2359-DMS(JLB), 2017 U.S. Dist. LEXIS 36371, at *17-18 (S.D. Cal. Jan. 3, 2017) (finding allegations insufficient where that unsolicited text “advertising uses the paid for and economically valuable text message allotments.”); Olmos v. Bank of Am., N.A., No. 15-CV-2786-BAS(BGS), 2016 U.S. Dist. LEXIS 72329, at *10-11 (S.D. Cal. June 1, 2016) (“[T]he allegation that Plaintiff received two short text messages is insufficient to convey standing because the loss of battery life and bandwidth as a result of these two messages was de minimis.”). As Defendants point out, this economic damages requirement was the result of California Proposition 64, which amended the UCL and FAL to require economic damages.

         In 2004, California voters passed Proposition 64, which amended the UCL and FAL to require plaintiffs to establish economic damages. Plaintiffs here argue that Proposition 64 amended only the UCL and had no impact on the Junk Fax Law as codified in § 17538.43. (Doc. No. 63 at 4.) Plaintiffs are decidedly wrong. Proposition 64 also amended the FAL in the same manner as the UCL. McGill v. Citibank, N.A., 393 P.3d 85, 92 (Cal. 2017) (“In 2004, the voters, by passing Proposition 64, amended [the UCL and FAL] to provide that private individuals may . . . file an action for relief only if they have ‘suffered injury in fact and [have] lost money or property as a result of' a violation . . . .”); Kwikset Corp., 246 P.3d at 887 (“Proposition 64 requires that a plaintiff's economic injury come “as a result of” the unfair competition or a violation of the false advertising law.”) (emphasis added); Angelucci v. Century Supper Club, 158 P.3d 718, 728 n.10 (Cal. 2007) (“We note as well that in 2004 the California electorate enacted legislation restricting previously broad standing requirements for a private right of action under the state unfair competition and false advertising laws (Bus. & Prof. Code, §§ 17200 et seq., 17500 et seq.)”) (emphasis added). Accordingly, section 17538.43 of the FAL requires the same economic injury as the UCL.[5]

         Here, Defendants contend none of the three Plaintiffs incurred cognizable economic damages as a result of receiving Defendants' faxes. The Court agrees and addresses each Plaintiff in turn. In doing so, the Court keeps in mind that Plaintiffs bear the burden of proving they having standing and that “[i]n response to a summary judgment motion [they cannot rest on] . . . mere allegations, but must set forth by affidavit or other evidence specific facts, which for purposes of the summary judgment motion will be taken to be true.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (emphasis added; citation and internal quotations omitted); see also Kwikset Corp., 246 P.3d at 888-89 (applying Lujan standard to state claim, but at motion to dismiss stage); Troyk v. Farmers Grp., Inc., 90 Cal.Rptr.3d 589, 622 (Cal.Ct.App. 2009) (same).[6]

         i. DCM Properties, Inc. and David Meyer

         Meyer, DCM's president, testified at deposition that he did not recall whether his fax machine required service after he received Defendants' faxes. (Defendants' Fact No. 10; Doc. No. 50-3 at 18.) Meyer testified he pays Vonage a flat rate for fax services and does not pay for individual faxes. (Defendants' Fact No. 5; Doc. No. 50-3 at 11.) He did not known how much the junk faxes cost DCM in paper or electricity. (Doc. No. 50-3 at 21, 24.) He speculated there might be a limit to the number of faxes he could receive, but did not know whether there was such a limit on his service plan. (Id.) Additionally, during the year Meyer received Defendants' faxes, his business both sent and received “a number of faxes” every day using a single fax machine. (Defendants' Fact No. 6; Doc. No. 50-3 at 14.) Moreover, at deposition, Meyer withdrew any claim of actual damages related to transmission of the junk faxes. (Defendants' Fact No. 11; Doc. No. 53 at 19.)

         The only evidence Meyer musters in response to this portion of Defendants' summary judgment motion is his own declaration. (See Doc. No. 63-2.) With respect to the economic injury issue, he therein declares that DCM Properties maintains a fax machine that operates in the following manner: “If someone uses a device to send a fax to our fax number it will transcribe text and/or images from a paper document to an electronic signal to be received by our fax machine which will then automatically print out a paper document copy of the fax. This uses DCM Properties, Inc.'s ink and paper which we and not the sender must purchase to make the physical fax document.” (Doc. No. 63-2 at 2 ¶ 5 (emphasis added).) Beyond this generic statement, Meyer provides no evidence- documents or lay or expert testimony-that in any manner establishes any measure of economic injury he sustained from receiving seven faxes. He merely avers that the faxes consumed an unknown quantity of ink and paper that his business had to purchase to operate the fax machine. He and DCM conclude that because they suffered a “loss of ink and paper, ” they have satisfied the economic loss requirement for UCL and FAL standing. (Doc. No. 63 at 5.)

         It is plainly evident that Meyer is unable to establish that he suffered a cognizable, non-trivial economic injury under the UCL and FAL. Although ink and paper have some cost, Meyer provides nothing more than the generic assertion that “literally anybody living in America would have to know that ink and paper are economic commodities.” (Doc. No. 63 at 5.) In relying on such generic assertions, Meyer misses the point, relies on “mere allegations, ” and provides no specific evidence from which the Court can conclude that he and DCM suffered anything beyond a trivial, di minimis loss.

         To the contrary, Meyer's testimony actually establishes that DCM's loss was trivial and di minimis. For example, DCM received a total of seven faxes from Defendants in 2013 and 2014, and Meyer testified that DCM employees sent and received “a number” of faxes on a daily basis during that year. Although “a number” of faxes per day is not numerically defined by either party, the ink and paper that seven junk faxes would consume during 2013 and 2014 would have been negligible. Even conservatively assuming for the sake of argument that DCM sent and received only two faxes per day in 2013 and 2014, the resources that the 723 non-junk faxes would have consumed in those years would have dwarfed any negligible resources that Defendants' seven[7] junk faxes consumed. Even under this conservative scenario, DCM's losses were di minimis and trivial.

         Moreover, as in Van Patten, DCM paid a flat rate to Vonage and was not charged on a per-fax basis. Thus, there is no evidence that DCM incurred any additional service provider charges when it received the seven junk faxes.

         Plaintiffs seem to have recognized and admitted their inability to prove economic damages from the inception of this case. (See, e.g., SAC ¶ 61 (stating, in the context of the TCPA claim, that “[g]iven the nominal amount of actual damages, Plaintiffs elect to pursue statutory damages . . . .”) (emphasis added).) Because Meyer and DCM have only nominal damages and have failed to meet their burden to establish quantifiable, non-trivial economic injury, they lack standing under the UCL and the Junk Fax Law.

         ii. Arnie Katz, Venture Support Group LLC, and Ken Moser

         Plaintiffs Arnie Katz, Venture, and Ken Moser are similarly situated in that they received junk faxes through computer-based fax services called “” and “” These services did not automatically print any of the faxes they received, and the faxes were instead digitally stored on their computers.[8] (Defendants' Fact No. 17; Doc. No. 50-5 at 9-10; see Doc. No. 63-3 at 2 ¶¶ 5-6.) Both Katz and Moser saved the junk faxes and chose to voluntarily print the faxes at a later date. (Doc. No. 50-5 at 11; Doc. No. 50-6 at 8-9.) Katz was not charged for individual faxes and paid a flat rate fee to his service provider. (Doc. No. 50-5 at 9.)

         Additionally, like Meyer, Katz and Moser generally assert, without any evidence, that their economic loss-whatever the amount might be-encompasses the “use of ink and paper.” (Doc. No. 63 at 6.) However, they provide no concrete evidence of economic injury to rebut Defendants' argument that they suffered no such injury. They simply contend that ink and paper have some measure of economic value, and that is enough to satisfy the economic injury requirement under the UCL and FAL. Applying the standard cited above, it is again plainly evident that Katz and Moser suffered nothing more than trivial, nominal, di minimis economic injury from the junk faxes they received. They have not-so-tacitly admitted this since the inception of this case. (SAC ¶ 61.) And they now confirm as much given the complete dearth of evidence of quantifiable economic injury.

         Finally, it not insignificant that Katz and Moser voluntarily printed the faxes that were electronically stored on their computers. Katz and Moser thus voluntarily took affirmative steps to cause the consumption of ink and electricity-nothing Defendants did compelled Katz and Moser to print the digital faxes and incur damages, whether cognizable or not. Thus, even if Katz, Moser, and Venture had quantifiable damages, they could not be properly traced or attributed to Defendants. Defendants could not have caused such damages because they did not cause the faxes' printing.

         Because Katz, Moser, and Venture have failed to meet their burden to establish that they suffered a quantifiable, non-trivial economic injury, they lack standing under the UCL and the Junk Fax Law.

         iii. Conclusion

         In sum, Defendants argue Plaintiffs had sustained no cognizable economic injury for UCL and FAL standing purposes. In response, Plaintiffs provided no specific evidence of economic injury and failed to dispute Defendants' asserted facts. Accordingly, Plaintiffs have not sufficiently established for purposes of the summary judgment any injury in fact. Cf. Troyk v. Farmers Grp., Inc., 90 Cal.Rptr.3d 589, 624-25 (Cal.Ct.App. 2009) (denying Defendant's summary judgment motion challenging standing where Plaintiff presented sufficient evidence that he was charged an additional $5 per month). Based on the foregoing, the Court lacks subject matter jurisdiction over Claims Two (Junk Fax Law) and Eight (UCL) because Plaintiffs lack standing. Accordingly, Defendants' motion for summary judgment is GRANTED-IN-PART and judgment shall be entered in Defendants' favor on these claims.

         b. Claim Seven: Consumer Legal Remedies Act, Cal. Civil Code § 1770(a)(22)

         In Claim Seven, Plaintiff Moser alleges Defendants violated California Civil Code § 1770(a)(22), which is a part of the Consumer Legal Remedies Act (“CLRA”), and which essentially requires that all unsolicited prerecorded telephone messages first be introduced by a live person who must ask for permission to play a recorded message. Continuing the challenge to Plaintiffs' standing, Defendants contend Moser has not proven he suffered damages under the CLRA.[9] However, there is a more fundamental reason why Moser lacks standing: the CLRA simply does not apply to loan products in the first place. Although neither party addressed whether the CLRA applies to the type of product marketed by the unsolicited faxes and telemarketing at issue in this case, the Court nonetheless has a duty to examine its jurisdiction sua sponte. The Court does so now and finds that the CLRA does not apply to this case.

         As an initial matter, because the question of standing is a threshold jurisdictional issue, federal courts have a duty to examine their jurisdiction sua sponte. See D'Lil v. Best W. Encina Lodge & Suites, 538 F.3d 1031, 1035 (9th Cir. 2008); United Investors Life Ins. Co. v. Waddell & Reed Inc., 360 F.3d 960, 967 (9th Cir. 2004) (stating that “the district court had a duty to establish subject matter jurisdiction . . . sua sponte, whether the parties raised the issue or not”). The Court may even dismiss a case for lack of subject matter jurisdiction without giving notice to the parties. Scholastic Entm't, Inc. v. Fox Entm't Grp., Inc., 336 F.3d 982, 985 (9th Cir. 2003); Franklin v. Oregon, State Welfare Div., 662 F.2d 1337, 1342 (9th Cir. 1981).

         The CLRA applies to “transaction[s] intended to result or which result[] in the sale or lease of goods or services to [a] consumer . . . .” Cal. Civ. Code § 1770(a). The CLRA defines “goods” as “tangible chattels bought or leased for use primarily for personal, family, or household purposes, ” id. § 1761(a), and “services” as “work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods, ” id. § 1761(b). For purposes of the CLRA, loans are neither goods nor services. Alborzian v. JPMorgan Chase Bank, N.A., 185 Cal.Rptr.3d 84, 93 (Cal.Ct.App. 2015) (“A mortgage loan is not a ‘good' because it is not a ‘tangible chattel'; it is not a ‘service' because it is not ‘work, labor, [or] services . . . furnished in connection with the sale or repair of goods.'”); see also Fairbanks v. Superior Court, 205 P.3d 201, 206 (Cal. 2009) (“[A]ncillary services that insurers provide [such as loans] to actual and prospective purchasers of life insurance do not bring the [insurance] policies within the coverage of the [CLRA].”); Elstead v. JPMorgan Chase Bank, Nos. A140069, A141247, 2017 Cal.App. Unpub. LEXIS 1567, at *51-52 (Mar. 3, 2017) (approvingly discussing Alborzian in dicta).

         Federal district courts have also held that loans do not qualify as goods and services under the CLRA. See, e.g., Jamison v. Bank of Am., N.A., 194 F.Supp.3d 1022, 1031-32 (E.D. Cal. 2016) (“[T]he court agrees with the California Court of Appeal decision in Alborzian and the majority of district court cases and concludes defendant's mortgage services do not fall within the coverage of the CLRA.”); Consumer Solsutions Reo, LLC v. Hillery, 658 F.Supp.2d 1002, 1016-17 (N.D. Cal. 2009) (dismissing CLRA claim with prejudice because “loans are intangible goods and that ancillary services provided in the sale of intangible goods do not bring these goods within the coverage of the CLRA.”); Sapan v. Lexington Mortg. Corp., No. SACV 16-01718-JVS(DFMx), 2017 U.S. Dist. LEXIS 63069, at *5-6 (C.D. Cal. Apr. 17, 2017); Kirkeby v. JP Morgan Chase Bank, N.A., No. 13-CV-377-WQH(MDD), 2014 U.S. Dist. LEXIS 174385, at *22-25 (S.D. Cal. Dec. 17, 2014) (holding loan modification programs, which are contractual obligations to pay money, are not goods or services within the meaning of the CLRA); Sonoda v. Amerisave Mortg. Corp., No. C-11-1803-EMC, 2011 U.S. Dist. LEXIS 73940, at *5 (N.D. Cal. July 8, 2011) (“If a contractual obligation to pay money (under an insurance contract) is not a service, then neither is a contractual obligation to lend money.”) (emphasis in original); Reynoso v. Paul Fin., LLC, No. 09-3225-SC, 2009 U.S. Dist. LEXIS 106555, at *28-29 (N.D. Cal. Nov. 16, 2009) (concluding the CLRA does not extend to “ancillary services” in connection with mortgage loans).

         Here, there is no dispute that Defendants' telemarketing efforts concerned attempts to sell short-term business loans. (Doc. No. 61-5 at 20-28, 32 (exhibits D, E, F, and H to Moser Declaration containing email communications Moser received from Capital Alliance in response to Moser's communications with Capital Alliance after he received telemarketing calls to his cellular telephone; all emails specifically mention short-term business loans); SAC, Doc. No. 1-1 at 30-85 (55 exhibits to Second Amended Complaint containing faxes offering short-term business loans). Short-term business loans are not materially distinguishable from the mortgage loans at issue in Alborzian-at bottom, both are contractual obligations to lend money. Moreover, the services Defendants provided to lenders are ancillary services that do not bring this case within the CLRA. The Court agrees with the multitude of state and federal cases and finds the CLRA does not cover the subject matter of this case.

         At oral argument, Plaintiffs attempted to distinguish this case by arguing that Defendants were not lenders and were not themselves in the business of making business loans-they merely served as loan advertisers. They contend that because Defendants did not actually issue loans and simply provided marketing or advertising services for the loan originators, they provided services “related to” loans and thus fall outside the rule above. The Court is not persuaded. In Fairbanks v. Superior Court, 205 P.3d 201 (Cal. 2009), the Supreme Court of California held that “the ancillary services that insurers provide to actual and prospective purchasers of life insurance do not bring the policies within the coverage of the CLRA.” 205 P.3d at 206. Since then, state and federal courts have followed Fairbanks and have consistently found that the CLRA does not cover ancillary services related to loans, and such services do not transform intangible goods and services into tangible goods and services that would otherwise not be covered by the CLRA. See, e.g., Jamison v. Bank of Am., N.A., 194 F.Supp.3d 1022 (E.D. Cal. 2016) (CLRA inapplicable to servicer of mortgage loan); Gerbitz v. ING Bank, 967 F.Supp.2d 1072, 1080 (D. Del. 2013) (finding that California law “makes clear that . . . ancillary services, including maintenance or other customer services, do not transform an intangible service into a tangible good or service under the CLRA.”); Alborzian v. JPMorgan Chase Bank, N.A., 185 Cal.Rptr.3d 84, 93 (Cal.Ct.App. 2015) (affirming the dismissal of a homeowner's CLRA claim alleged against one of its mortgage lenders and a debt collection agent of the lender); Robles v. One W. Bank, No. B234196, 2012 Cal.App. Unpub. LEXIS 7618, at *13-14 (Cal.Ct.App. Oct. 22, 2012) (explaining that the court in Fairbanks “held that ‘ancillary services' provided by insurers-like those also provided by sellers of investment securities, bank deposit accounts, and loans-which include ‘assist[ing] prospective customers in selecting products that suit their needs, and . . . provid[ing] additional customer services related to the maintenance, value, use, redemption, resale, or repayment, ' do not fall under the CLRA.”).

         The Court finds these state and federal cases persuasive. The CLRA defines “services” as “work, labor, and services for other than a commercial or business use, including services furnished in connection with the sale or repair of goods.” Alborzian, 185 Cal.Rptr.3d at 93 (citing Cal. Civ. Code § 1761(b)) (emphasis added). For services “in connection with” the sale of goods to qualify under the CLRA, “goods” must themselves be covered by the CLRA. See Gerbitz, 967 F.Supp.2d at 1080. Since loans at their core are not “goods” or “services” under the CLRA, advertising related to selling such intangible financial goods are not “services furnished in connection with” any goods or services. See Consumer Solutions Reo, LLC v. Hillery, 658 F.Supp.2d 1002, 1016-17 (N.D. Cal. 2009) (“Fairbanks . . . indicates that loans are intangible goods and that ancillary services provided in the sale of intangible goods do not bring these goods within the coverage of the CLRA.”). It would seem wildly incongruous that the CLRA would apply to advertising or marketing of loans but not apply to the loans themselves. Indeed, bootstrapping the CLRA into this case in this manner would, as the Supreme Court of California explained, “defeat the apparent legislative intent in limiting the definition of” goods and services, Fairbanks, 205 P.3d at 202; see also Gerbitz, 967 F.Supp.2d at 1080, by greatly expanding that definition.

         The Court finds that Defendants' advertising or marketing of loans is an ancillary service that does not fall within the CLRA. Accordingly, Moser lacks standing under the CLRA, and Defendants are entitled to summary judgment on Claim Seven.[10]

         3. Claims Nine (Trespass) and Ten (Conversion)

         Defendants seek summary judgment on the ninth claim (trespass) and tenth claim (conversion) on the basis that Plaintiffs suffered no actual harm from Defendants' faxes or telemarketing calls. (Doc. No. 50 at 16-18.) Plaintiffs respond that they suffered harm in the form of the “tying up” of telephone lines and the use of Plaintiffs' “physical and electronic” resources. (Doc. No. 63 ...

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