United States District Court, S.D. California
DAVID MEYER et. al., Plaintiffs,
CAPITAL ALLIANCE GROUP et. al., Defendants.
ORDER (1) GRANTING-IN-PART DEFENDANTS' MOTION FOR
PARTIAL SUMMARY JUDGMENT; (2) GRANTING-IN-PART
DEFENDANTS' MOTION TO DISMISS; AND (3) DENYING
PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT. [DOC.
NOS. 48, 49, 50, 61 & 76.]
WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE.
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
David Meyer, Arnie Katz, and Ken Moser are individual
business owners who maintain fax and telephone lines in
furtherance of their businesses. 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. 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.
Defendants' Motion for Partial Summary Judgment (Doc. No.
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)).
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.
Claims Two, Seven, and Eight
Claims Two (Cal. Bus. & Prof. Code § 1758.41, Junk
Fax Law) and Eight (Cal. Bus. & Prof. Code §§
17200 et seq., Unfair Competition Law)
contend Plaintiffs lacks standing to bring both Claim Two
(the so-called “Junk Fax Law, ” Cal. Bus. Prof.
Code § 1758.41) 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.) Defendants are correct.
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).
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
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.
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.
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.
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).
DCM Properties, Inc. and David 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.)
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.)
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.
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 junk faxes consumed. Even
under this conservative scenario, DCM's losses were
di minimis and trivial.
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.
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
Arnie Katz, Venture Support Group LLC, and Ken Moser
Arnie Katz, Venture, and Ken Moser are similarly situated in
that they received junk faxes through computer-based fax
services called “myfax.com” and
“efax.com.” These services did not automatically
print any of the faxes they received, and the faxes were
instead digitally stored on their computers. (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.)
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.
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.
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.
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.
Claim Seven: Consumer Legal Remedies Act, Cal. Civil Code
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. 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.
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
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).
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
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.
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.”).
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.
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
Claims Nine (Trespass) and Ten (Conversion)
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