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Walintukan v. SBE Entertainment Group LLC

United States District Court, N.D. California

May 24, 2018



          JON S. TIGAR United States District Judge

         Before 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 motion.


         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.

         The 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.


         Summary 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.

         Where 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).


         In this 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)).[1] Text messages are “calls” within the meaning of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

         Defendants' 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).

         A 1992 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.

         In 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” 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 ...

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