Tuck v. Guardian Prot. Servs., Inc.

• Decision Date: 08 September 2016
• Docket Number: Case No.: 15-CV-1376 JLS (JLB)
• Parties: CLARICE TUCK, Plaintiff, v. GUARDIAN PROTECTION SERVICES, INC., Defendant.
• Court: U.S. District Court — Southern District of California

CLARICE TUCK, Plaintiff, v. GUARDIAN PROTECTION SERVICES, INC., Defendant.

Case No.: 15-CV-1376 JLS (JLB)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

September 8, 2016

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS

(ECF No. 32)

Presently before the Court is Defendant Guardian Protection Services, Inc.'s, Motion to Dismiss for Failure to State a Claim. (MTD, ECF No. 32.) Also before the Court are Plaintiff Clarice Tuck's Opposition to (ECF No. 34) and Defendant's Reply in Support of (ECF No. 35) the MTD. The Court vacated the hearing and took this matter under submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 36.) Having considered the parties' arguments and the law, the Court GRANTS IN PART AND DENIES IN PART Defendant's MTD. (ECF No. 32.)

BACKGROUND

On July 29, 2013, Plaintiff signed an "Authorized Dealer Monitoring and Repair Agreement (MRA) and Retail Installment Contract" with AMP Security. (First Am.

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/ / / Compl. (FAC) Ex. G-1, ECF No. 16 at 40.¹) The MRA provides that it "may be assigned to Guardian Protection Services, Inc. . . . AMP and Guardian are sometimes referred to as 'Company,' 'We,' or 'Our.'" (Id.) On that same date, Plaintiff also signed an "Authorized Dealer Sales and Installation Agreement" (SIA). (See MTD Mem. Ex. B, ECF No. 32-3.) In the SIA, Plaintiff designated her cell number as the "Pre-Dispatch Verification Phone Number." (Id. at 2.)

On December 2, 2014, Plaintiff contacted Defendant to demand discontinuation of her service, an end to her contract, and payment of $200 to repair her thermostat wiring. (FAC Ex. B, ECF No. 16 at 22.) She informed Defendant that she had "had nothing but problems with [the AMP Security] system." (Id.)

/ / / In the fifty-two day period between February 25, 2015 and April 17, 2015, Defendant called Plaintiff's cell phone more than forty times, on some days more than once in the same business day. (SAC at 8-9, ECF No. 30; see also SAC Ex. A, ECF No. 30 at 32-33.) Defendant also "ignored all written attempts by Plaintiff . . . to have the defendant . . . cease and desist all collection activities immediately." (SAC at 10, ECF No. 30 (emphasis omitted).)

In March 2015, Plaintiff checked her consumer credit report from all three national credit reporting agencies—Experian, Equifax, and TransUnion—and discovered multiple credit accounts reported by Defendant in negative status. (Id. at 22.)

On June 23, 2015, Plaintiff filed her initial complaint, alleging violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p; Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227; and California Rosenthal Fair Debt Collection Practices Act (Rosenthal Act), California Civil Code §§ 1788-1788.33. (See generally Compl., ECF No. 1.)

Following the filing of Defendant's first motion to dismiss on September 21, 2015 (see ECF No. 8), Plaintiff filed her FAC on November 18, 2015 (see ECF No. 16). The Court accepted Plaintiff's FAC on discrepancy and denied as moot Defendant's first motion to dismiss. (See ECF Nos. 15, 17.)

Defendant then filed a second motion to dismiss on December 3, 2015. (See ECF No. 19.) Following Plaintiff's filing of the operative SAC (see ECF No. 30)—which added alleged violations of the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681, and the California Consumer Credit Reporting Agencies Act (CCRAA), California Civil Code §§ 1785 et seq.—the Court denied as moot Defendant's second motion to dismiss (see ECF No. 31).

Defendant filed the instant MTD on February 16, 2016. (See ECF No. 32.)

LEGAL STANDARD

Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the defense that the complaint "fail[s] to state a claim upon which relief can be granted,"generally referred to as a motion to dismiss. The Court evaluates whether a complaint states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil Procedure 8(a), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Although Rule 8 "does not require 'detailed factual allegations,' . . . it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Twombly, 550 U.S. at 555 (alteration in original). "Nor does a complaint suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Iqbal, 556 U.S. at 678 (alteration in original) (quoting Twombly, 550 U.S. at 557).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible when the facts pled "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). That is not to say that the claim must be probable, but there must be "more than a sheer possibility that a defendant has acted unlawfully." Id. (citing Twombly, 550 U.S. at 556). "[F]acts that are 'merely consistent with' a defendant's liability" fall short of a plausible entitlement to relief. Id. (quoting Twombly, 550 U.S. at 557). Further, the Court need not accept as true "legal conclusions" contained in the complaint. Id. at 678-79 (citing Twombly, 550 U.S. at 555). This review requires "context-specific" analysis involving the Court's "judicial experience and common sense." Id. at 679. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" Id. (quoting Fed. R. Civ. P. 8(a)(2)). The Court will grant leave to amend unless it determines that no modified contention "consistent with the challenged pleading . . . [will] cure the deficiency." DeSotov. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992) (quoting Schriber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986)).

ANALYSIS

Plaintiff's SAC alleges nine causes of action for violation of: (1) § 227(b)(a)(A) of the TCPA, (2) § 1692(c)(a)(1) of the FDCPA, (3) § 1692(d)(5) of the FDCPA, (4) § 1692(d)(6) of the FDCPA, (5) § 1692(e)(1) of the FDCPA, (6) § 1681 of the FCRA, (7) § 1681b of the FCRA, (8) the CCRAA, and (9) the Rosenthal Act. (See generally SAC 11-28, ECF No. 30.) Defendant asks the Court to dismiss Plaintiff's SAC with prejudice for failure to state a claim under Rule 12(b)(6). (See MTD 5, ECF No. 32; MTD Mem. 29, ECF No. 32-1.)

I. First Cause of Action: Violation of § 227(b)(1)(A) the TCPA

Plaintiff's first cause of action alleges that Defendant violated § 227(b)(1)(A) of the TCPA. (See SAC at 11-16, ECF No. 30.) Defendant argues that this cause of action must be dismissed because Plaintiff provided express written consent to receive the calls and because Plaintiff has failed to allege adequately the use of an automatic telephone dialing system or an artificial or prerecorded voice. (See MTD Mem. 13-18, ECF No. 32-1.)

Pursuant to 47 U.S.C. § 227(b)(1)(A)(i):

It shall be unlawful for any person within the United States . . . [¶] to make any call (other than a call made for emergency purposes of made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial prerecorded voice . . . [¶] to any telephone number assigned to a . . . cellular telephone service . . . for which the called party is charged for the call . . . .

There are therefore three elements to a TCPA claim: "(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). Defendant challenges the adequacy of Plaintiff's allegations concerning only the second and third elements.

/ / / Regarding the second element, the TCPA defines "automatic telephone dialing system" as "equipment which has the capacity . . . [¶] (A) to store or produce telephone numbers to be called, using a random or sequential number generator; and [¶] (B) to dial such numbers." 47 U.S.C. § 227(a)(1). Plaintiff alleges that "[Defendant] has entered into written contracts with all of its subsidiaries to use predictive dialers" and that "use of an ATDS is standard industry practice among consumer debt collectors." (See Compl. 13, ECF No. 30.) Moreover, "[o]n information and belief, within the past four years, [Defendant] ha[s made] ten[s] of thousands of Voice and/or ATDS calls to the cellular telephones of consumers who had not, during the transactions that resulted in the alleged consumer debt, previously given [Defendant] prior written express consent to receive such calls." (Id. (emphasis in original).)

These allegations are sufficient. See Iniguez v. CBE Grp., 969 F. Supp. 2d 1241, 1247 (E.D. Cal. 2013) (noting that an allegation that defendant used an automatic telephone dialing system is sufficient to support a TCPA claim). Moreover, although Defendant argues that Plaintiff's allegations that Defendant "specifically targeted . . . her for the purpose of collecting a debt" "defeat her contention that the calls were placed with an ATDS" (MTD Mem. 17, ECF No. 32-1), "whether or not Defendant's system randomly generated Plaintiff's number is not determinative because the TCPA only requires that the system have that capability, not that it was actually utilized with respect to a particular phone call," Iniguez, 969 F. Supp. 2d at 1247 (citing Satterfield v. Simon &...