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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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----oo0oo----

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VERINA FREEMAN and VALECEA
DIGGS, individually and on
behalf of all others
similarly situated,

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CIV. NO. 2:15-1428 WBS AC
MEMORANDUM AND ORDER RE: MOTION
FOR SUMMARY JUDGMENT

Plaintiffs,

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v.

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WILSHIRE COMMERCIAL CAPITAL
LLC d/b/a “Wilshire Consumer
Credit,” a California limited
liability company,

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Defendant.

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----oo0oo----

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Defendant Wilshire Commercial Capital moves for summary

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judgment against plaintiffs Verina Freeman and Valecea Diggs,

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upon the ground that plaintiffs do not have Article III standing

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for their putative class action under the Telephone Consumer

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Protection Act (“TCPA”).

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The Ninth Circuit’s opinion in Van Patten v. Vertical
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Fitness Group, No. 14-55980, 2017 WL 460663, --- F.3d ---- (9th

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Cir. 2017) is dispositive.

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passing the TCPA, “Congress identified unsolicited contact as a

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concrete harm, and gave consumers a means to redress this harm”

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through the TCPA because such calls, “by their nature, invade the

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privacy and disturb the solitude of their recipients.”

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*4.

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other than “unsolicited contact” because “a violation of the TCPA

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. . . [is] sufficient to confer Article III standing.”

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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

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claim against defendant for violation of the TCPA for defendant’s

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unsolicited calls to plaintiffs “using an ATDS or an artificial

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or prerecorded voice.”

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No. 40)); see 47 U.S.C. § 227(b)(1)(A).

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defense counsel argued Van Patten’s Article III standing

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discussion was dicta.

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parties to brief the Article III standing issue the Ninth Circuit

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stated unequivocally that, “We hold that Van Patten alleged a

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concrete injury in fact sufficient to confer Article III

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standing.”

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Plaintiffs’ TCPA claim is a sufficient concrete injury to confer

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Article III standing.

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(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

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summary judgment be, and the same hereby is, DENIED.

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Dated:

February 22, 2017

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