Gutierrez v. Barclaycard

• Decision Date: 09 February 2011
• Docket Number: CASE NO. 10cv1012 DMS (BGS)
• Court: U.S. District Court — Southern District of California
• Parties: RAMON GUTIERREZ and CLARIZA GUTIERREZ, on behalf of themselves and all others similarly situated, Plaintiffs, v. BARCLAYS GROUP d.b.a. BARCLAYCARD, d.b.a. BARCLAYS BANK, d.b.a. BARCLAYS BANK DELAWARE d.b.a. BARCLAYS BANK OF DELAWARE, N.A., et al., Defendant.

RAMON GUTIERREZ and CLARIZA GUTIERREZ, on behalf of themselves andall others similarly situated, Plaintiffs,

v. BARCLAYS GROUP d.b.a. BARCLAYCARD, d.b.a. BARCLAYS BANK, d.b.a. BARCLAYS BANK DELAWARE d.b.a.BARCLAYS BANK OF DELAWARE, N.A., et al., Defendant.

CASE NO. 10cv1012 DMS (BGS)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Dated: February 9, 2011

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT [Docket No. 22]

This case comes before the Court on Defendant's motion for summary judgment. Plaintiffs have filed an opposition to the motion, and Defendant has filed a reply. After thoroughly reviewing the parties' briefs and supporting evidence, and the relevant case law, the Court denies the motion.

I.BACKGROUND

In September 2009, Plaintiff Ramon Gutierrez applied for a credit card account from Defendant Barclays. In the account application, Mr. Gutierrez listed two telephone numbers: (909) 702-5919 as his home phone number and (909) 569-7913 as his work phone number. Although Mr. Gutierrez listed the 5919 number as his home number, the number did not correspond to a land line to his home. Rather, that number belonged to a cellular phone belonging to his wife, Plaintiff Clariza Gutierrez. The 7913 number corresponded to Mr. Gutierrez's cellular phone.

In October 2009, Defendant approved Mr. Gutierrez's application and issued two separate credit cards for the account. One card was issued to Mr. Gutierrez, and the other card was issued to Mrs. Gutierrez as an authorized user. Mrs. Gutierrez was responsible for managing the account, which included reviewing and paying the bills and communicating with Defendant on all account matters.

Plaintiffs made purchases on the account, but failed to make timely payments, therefore the account became delinquent. At that time, Defendant began making collection calls to the two telephone numbers associated with the account, the 5919 number and the 7913 number. Defendant also sent text messages to the 7913 number. In response to one of the text messages, Mr. Gutierrez asked Defendant to stop sending text messages. Defendant ceased all collection activity on the account as of May 13, 2010.

On May 12, 2010, Plaintiffs filed the present case on behalf of themselves and all others similarly situated. They allege one claim for negligent violation of the Telephone Consumer Protection Act ("TCPA") and one claim for willful violation of the TCPA.

II.DISCUSSION

Defendant moves for summary judgment on both of Plaintiffs' claims. It raises three arguments. First, Defendant argues it had prior express consent to call Plaintiffs at the numbers provided on the application, therefore it did not violate the TCPA. Second, Defendant asserts Mrs. Gutierrez is not a "called party" under the TCPA, therefore she lacks standing to pursue her claims. Third, Defendant contends neither Plaintiff was charged for the calls or text messages, therefore there was no violation of the TCPA.

A. Standard of Review

Summary judgment is appropriate if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party has the initial burden of demonstrating that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The moving party must identify the pleadings, depositions, affidavits, or otherevidence that it "believes demonstrates the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "A material issue of fact is one that affects the outcome of the litigation and requires a trial to resolve the parties' differing versions of the truth." S.E.C. v. Seaboard Corp., 677 F.2d 1301, 1306 (9th Cir. 1982).

The burden then shifts to the opposing party to show that summary judgment is not appropriate. Celotex, 477 U.S. at 324. The opposing party's evidence is to be believed, and all justifiable inferences are to be drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). However, to avoid summary judgment, the opposing party cannot rest solely on conclusory allegations. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986). Instead, it must designate specific facts showing there is a genuine issue for trial. Id. More than a "metaphysical doubt" is required to establish a genuine issue of material fact." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp.,, 475 U.S. 574, 586 (1986).

B. Prior Express Consent

The TCPA makes it unlawful:

for any person within the United States, or any person outside the United States if the recipient is within the United States-

(A) to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice-...

(iii) to any telephone number assigned to a paging service, cellular telephone service, specialized mobile radio service, or other radio common carrier service, or any service for which the called party is charged for the call[.]

47 U.S.C. § 227(b)(1)(A)(iii). In a 1992 Report and Order, the Federal Communications Commission ("FCC") stated 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 and Regulations Implementing the Telephone Consumer Protection Act of1991, Report and Order, 7 FCC Rcd. 8752, 8769 (Oct. 16, 1992) ("1992 Report and Order"). In a subsequent ruling, the FCC clarified "that autodialed and prerecorded message calls to wireless numbers that are provided by the called party to a creditor in connection with an existing debt are permissible as calls made with the 'prior express consent' of the called party." In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, Declaratory Ruling, 23 FCC Rcd. 559 (Jan. 4, 2008) ("2008 Declaratory Ruling"). The FCC also concluded "that the creditor should be responsible for demonstrating that the consumer provided prior express consent[,]" reasoning that "[t]he creditors are in the best position to have records kept in the usual course of business showing such consent, such as purchase agreements, sales slips, and credit applications." Id. at 565.

Here, Defendant asserts that Plaintiff Ramon Gutierrez provided prior express consent to call his and his wife's cellular telephone numbers when he listed those numbers on the account application. In support of this assertion, Defendant provides a copy of the on-line application form, which lists both cellular numbers. (Decl. of Michael Liu in Supp. of Mot. ("Liu Decl."), Ex. A at 4.) Plaintiffs do not dispute that Mr. Gutierrez listed these numbers on the application, and as to Mr. Gutierrez, Plaintiffs do not dispute that he gave prior express consent to the use of his cellular number. However, Plaintiffs do dispute whether Mrs. Gutierrez gave prior express consent for the use of her cellular number.

Defendant maintains that Mrs. Gutierrez gave prior express consent, and as support, it cites the deposition testimony of Mr. and Mrs. Gutierrez. Mr. Gutierrez testified that he had Mrs. Gutierrez's consent to provide her cellular number on the account application. (Mem. of P. & A. in Supp. of Mot. at 13.) Similarly, Mrs. Gutierrez testified that it was "okay" with her if her husband provided her cellular number to credit card companies. (Reply Br. at 6.)

Mrs. Gutierrez now disputes that she gave her husband consent to list her cellular number on the account application. (See Decl. of Clariza Gutierrez in Supp. of Opp'n to Mot. ("C. Gutierrez Decl.") ¶ 6.)¹ Moreover, Plaintiffs argue that Mr. Gutierrez could not consent to the use of Mrs. Gutierrez's cellular number. They contend that only Mrs. Gutierrez could provide consent for the use of her number, and she never gave that consent directly to Defendant.

Neither Plaintiffs nor Defendant cite any case law on whether a husband may provide "prior express consent" for the use of his wife's cellular number under the TCPA. In the criminal context, however, the prosecution may show that it obtained consent for a search not only with "proof thatconsent was given by the defendant, " but also "that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected." United States v. Matlock, 415 U.S. 164, 171 (1974). Here, Defendant has provided evidence that Mr. Gutierrez was allowed to use his wife's cellular phone without asking her for permission, and that he did in fact use her cellular phone. (Decl. of Jordan Yu in Supp. of Mot. ("Yu Decl."), Ex. G at 120-21.) These undisputed facts are sufficient to show that Mr. Gutierrez possessed "common authority" over his wife's cellular telephone such that he could give Defendant "prior express consent" for its use of her cellular number, and indeed, that is precisely what happened when Mr. Gutierrez listed her number on the account application.

Nevertheless, Plaintiffs argue they revoked their consent to the use of their cellular numbers. Specifically, Mr. Gutierrez asserts he revoked his prior express consent for the use of his cellular number via text message, while Mrs. Gutierrez asserts she orally revoked the consent for the use of her cellular number. Defendant does not dispute that Mr. Gutierrez revoked his prior express consent by virtue of the text message. However, it does dispute whether Mrs. Gutierrez's oral revocation was valid.

In support of its position that consent must be revoked in writing, Defendant cites two unpublished, out-of-circuit, district court cases, Starkey v. Firstsource Advantage, LLC, No. 07-CV-662A(Sr), 2010 WL 2541756 (W.D.N.Y. Mar. 11, 2010), and Cunningham v. Credit Management, L.P., No. 3:09-cv-1497-G(BF), 2010 WL 3791104 (N.D....