United States District Court, N.D. California
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT RE: ECF, 69
TIGAR United States District Judge
the Court is a motion for summary judgment brought by
Defendants SBE Entertainment Group, LLC; 6021 Hollywood
Investors, LLC; 6021 Hollywood Operating Company, LLC; and
Spoonful Management, LLC. ECF No. 69. The Court will deny the
following facts are undisputed: On June 3, 2013, Plaintiff
Deric Walintukan purchased online tickets to a June 8, 2013
event at Create Nightclub in Los Angeles, California. As part
of the checkout process, Walintukan provided his telephone
number, which he contends was required to complete the
purchase. The website contained no limiting language as to
how Walintukan's phone number or other contact
information could be used. On September 1, 2013, Walintukan
received, at the phone number he provided, a text message
promoting an unrelated event at Create. Five days later, he
received a second text message promoting another unrelated
event at Create. He successfully opted out of receiving any
further text messages.
parties dispute whether Walintukan's provision of his
phone number when he purchased tickets to one event
constituted consent to receive text messages promoting
different events at the same venue.
judgment is proper when a “movant shows that 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). A dispute is genuine only if there is sufficient
evidence “such that a reasonable jury could return a
verdict for the nonmoving party, ” and a fact is
material only if it might affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). When deciding a motion for summary judgment, the
court must draw “all justifiable inferences” in
the nonmoving party's favor and may not weigh evidence or
make credibility determinations. Id. at 255.
the party moving for summary judgment would bear the burden
of proof at trial, that party “has the initial burden
of establishing the absence of a genuine issue of fact on
each issue material to its case.” C.A.R. Transp.
Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480
(9th Cir. 2000). Where the party moving for summary judgment
would not bear the burden of proof at trial, that party
“must either produce evidence negating an essential
element of the nonmoving party's claim or defense or show
that the nonmoving party does not have enough evidence of an
essential element to carry its ultimate burden of persuasion
at trial.” Nissan Fire & Marine Ins. Co. v.
Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the
moving party satisfies its initial burden of production, the
nonmoving party must produce admissible evidence to show that
a genuine issue of material fact exists. Id. at
1102-03. If the nonmoving party fails to make this showing,
the moving party is entitled to summary judgment. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
putative class action, Walintukan asserts that Defendants
violated his rights under the Telephone Consumer Protection
Act (“TCPA”). “The three elements of a TCPA
claim are: (1) the defendant called a cellular telephone
number; (2) using an automatic telephone dialing system; (3)
without the recipient's prior express consent.”
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d
1036, 1043 (9th Cir. 2012) (citing 47 U.S.C. §
227(b)(1)). Text messages are “calls”
within the meaning of the TCPA. Satterfield v. Simon
& Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).
motion challenges only the third element: whether Walintukan
provided prior express consent. Consent “is an
affirmative defense for which the defendant bears the burden
of proof.” Van Patten v. Vertical Fitness Grp.,
LLC, 847 F.3d 1037, 1044 (9th Cir. 2017).
order from the Federal Communications Commission provides
that “persons who knowingly release their phone numbers
have in effect given their invitation or permission to be
called at the number which they have given, absent
instructions to the contrary.” In the Matter of
Rules & Regulations Implementing the Tel. Consumer Prot.
Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992). The Ninth
Circuit recently interpreted this language “in a way
that harmonizes with the TCPA's text and purpose, as well
as the FCC's other orders and rulings. In our view, an
effective consent is one that relates to the same subject
matter as is covered by the challenged calls or text
messages.” Van Patten, 847 F.3d at 1044-45.
The court did “not read the 1992 Order to mean that the
FCC has determined that providing a phone number in itself
means that the consumer has expressly consented to contact
for any purpose whatsoever. Instead, the consent must be
considered to relate to the type of transaction that evoked
it.” Id. at 1045. Thus, “the scope of a
consumer's consent depends on the transactional context
in which it is given. The call or text message must be based
on the circumstance in which the consumer gave his or her
number.” Id. at 1040. “[T]he FCC has
established no rule that a consumer who gives a phone number
to a company has consented to be contacted for any
reason.” Id. at 1046.
Van Patten, the Ninth Circuit considered whether the
plaintiff had given prior express consent to receive the
following text message on two occasions: “Golds [sic]
Gym is now Xperience Fitness. Come back for $9.99/mo, no
commitment. Enter for a chance to win a Nissan Xterra! Visit
Myxperiencefitness.com/giveaway.” Id. at 1041.
In 2009, Van Patten gave his phone number and other contact
information to a Gold's Gym franchise in Green Bay,
Wisconsin, “to determine whether he was pre-qualified
to become a member.” Id. at 1040. He canceled
his membership three days later. Id. Over three
years after that, the Gold's Gym franchise that Van
Patten visited became an Xperience Fitness gym, and Van
Patten received the above text messages as part of a campaign
to “invite members to return.” Id. at
1040-41. The court concluded that Van Patten had given his
express consent to receive the text messages:
Van Patten giving his phone number for the purpose of his gym
membership agreement did not amount to consent to be
contacted for all purposes. Under the logic of the FCC's
orders, Van Patten gave his consent to being contacted about
some things, such as follow-up questions about his gym
membership application, but not to all communications. The
scope of his consent included the text messages'
invitation to “come back” and reactivate his gym
membership. The text messages at issue here were part of a
campaign to get former and ...