Freeman et al v. Wilshire Commercial Capital L.L.C.

Filing 58

MEMORANDUM and ORDER signed by Senior Judge William B. Shubb on 2/22/2017 DENYING 42 Defendant's Motion for Summary Judgment. (Kirksey Smith, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---- 11 12 13 14 VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, 15 CIV. NO. 2:15-1428 WBS AC MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT Plaintiffs, 16 v. 17 WILSHIRE COMMERCIAL CAPITAL LLC d/b/a “Wilshire Consumer Credit,” a California limited liability company, 18 19 20 Defendant. 21 ----oo0oo---- 22 23 Defendant Wilshire Commercial Capital moves for summary 24 judgment against plaintiffs Verina Freeman and Valecea Diggs, 25 upon the ground that plaintiffs do not have Article III standing 26 for their putative class action under the Telephone Consumer 27 Protection Act (“TCPA”). 28 The Ninth Circuit’s opinion in Van Patten v. Vertical 1 1 Fitness Group, No. 14-55980, 2017 WL 460663, --- F.3d ---- (9th 2 Cir. 2017) is dispositive. 3 passing the TCPA, “Congress identified unsolicited contact as a 4 concrete harm, and gave consumers a means to redress this harm” 5 through the TCPA because such calls, “by their nature, invade the 6 privacy and disturb the solitude of their recipients.” 7 *4. 8 other than “unsolicited contact” because “a violation of the TCPA 9 . . . [is] sufficient to confer Article III standing.” 10 This case is substantially similar. The Van Patten court found that, in Id. at Thus, a plaintiff “need not allege any additional harm” Id. Plaintiffs bring a 11 claim against defendant for violation of the TCPA for defendant’s 12 unsolicited calls to plaintiffs “using an ATDS or an artificial 13 or prerecorded voice.” 14 No. 40)); see 47 U.S.C. § 227(b)(1)(A). 15 defense counsel argued Van Patten’s Article III standing 16 discussion was dicta. 17 parties to brief the Article III standing issue the Ninth Circuit 18 stated unequivocally that, “We hold that Van Patten alleged a 19 concrete injury in fact sufficient to confer Article III 20 standing.” 21 Plaintiffs’ TCPA claim is a sufficient concrete injury to confer 22 Article III standing. 23 (First Am. Compl. ¶¶ 23, 52-53 (Docket At oral argument, However, after specifically requesting the Van Patten, 2017 WL 460663, at *4 n.2, *5. IT IS THEREFORE ORDERED that defendant’s motion for 24 summary judgment be, and the same hereby is, DENIED. 25 Dated: February 22, 2017 26 27 28 2

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