Mackinnon v. Hof's Hut Restaurants, Inc.

Filing 20

ORDER granting 15 Motion to Dismiss signed by District Judge John A. Mendez on 11/28/17. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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STEVE MACKINNON,

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2:17-cv-01456-JAM-DB

Plaintiff,

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No.

v.
HOF’S HUT RESTAURANTS, INC.,
a California corporation,

ORDER GRANTING HOF’S HUT
RESTAURANTS, INC.’S MOTION TO
DISMISS

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Defendant.
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Plaintiff Steve MacKinnon (“Plaintiff”) made a dinner

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reservation at a Hof’s Hut Restaurants, Inc.’s (“Defendant”)

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restaurant and provided his phone number to receive confirmation

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of that reservation.

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message confirming the reservation and providing a link to “View

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specials”.

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lawsuit.

Compl., ECF No. 1.

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lawsuit.

Mem., ECF No. 11.

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13.

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to dismiss with prejudice. 1

Defendant then sent Plaintiff a text

Three months later Plaintiff filed this class action
Defendant moves to dismiss the
Plaintiff opposes.

Opp’n, ECF No.

For the reasons below, the Court grants Defendant’s motion

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was
scheduled for November 7, 2017. In deciding this motion, the
Court takes as true all well-pleaded facts in the operative
complaint.
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I.

FACTUAL AND PROCEDURAL BACKGROUND

In April 2017, Plaintiff made a dinner reservation at

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Lucille’s Smokehouse Bar-B-Que in Rocklin, California, a

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restaurant owned by Defendant.

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reservation, Plaintiff was asked for and provided his cellphone

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number to the restaurant.

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Plaintiff a text message reading:

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Compl. ¶¶ 4, 18.

See id.

When making the

The restaurant later sent

Welcome to Lucilles Rocklin!
Your reservation for 2 is set for 6:00 pm on 4/20/2017.
View specials at hcguest.com/?r=3327914571

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Id. ¶ 22.

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on July 13, 2017, alleging that Defendant violated the Telephone

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Consumer Protection Act (the “TCPA”), 47 U.S.C. §§ 227, et seq.,

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by sending the text message.

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failure to state a claim.

In response, Plaintiff filed this class-action lawsuit

Defendant moves to dismiss for

See Mem.

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II.

OPINION

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Plaintiff concedes that he “likely provided express consent

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to Defendant to alert him when his dinner reservation was ready”

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but contends that this is insufficient to “absolve Defendant of

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liability [under the TCPA] because Defendant’s message included

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or introduced advertising” which Plaintiff did not consent to

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receive in writing.

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otherwise.

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See Opp’n at 2-3.

The Court finds

Under the TCPA, the three elements of a claim are: (1) the

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defendant called a cellular phone number; (2) using an automatic

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telephone dialing system; (3) without the recipient’s prior

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express consent.

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F.3d 1036, 1043 (9th Cir. 2012) (internal citation and quotation

Meyer v. Portfolio Recovery Assocs., LLC, 707

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marks omitted).

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qualifies as a “call” within the TCPA.

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Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

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As for the first element, a text message
Satterfield v. Simon &

For the third element, any call or text message that

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includes or introduces an advertisement or constitutes

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telemarketing cannot be made without the prior express written

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consent of the called or texted party.

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Mgmt. Corp., No. 1:16-CV-00219-DAD-SKO, 2016 WL 6298528, at *3

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(E.D. Cal. Oct. 27, 2016) (citing 47 C.F.R. § 64.1200(a)(2)).

See Larson v. Harman

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And a message qualifies as “telemarketing” or “advertising” if

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it is issued for the purpose of encouraging the purchase or

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rental of, or investment in, property, goods, or services.

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C.F.R. § 64.1200(f)(12).

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whether a message constitutes advertising or telemarketing with

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“a measure of common sense.”

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L.P., 705 F.3d 913, 918 (9th Cir. 2012).

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Courts approach the question of

See Chesbro v. Best Buy Stores,

All non-advertising or non-telemarketing calls or texts

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made with an automatic telephone dialing system require only the

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prior express consent of the called party—without having to be

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in writing.

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§ 64.1200(a)(1)).

See Larson, 2016 WL 6298528 at *3 (citing 47 C.F.R.

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A.

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The Court finds that Defendant’s text message confirming

Allegations of Telemarketing or Advertising

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Plaintiff’s dinner reservation does not constitute telemarketing

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or advertising because it is informative and non-telemarketing

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in nature.

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03456-WHO, 2015 WL 7454260 (N. D. Cal. Nov. 24, 2015) (finding

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that text message regarding “free pts” to be redeemed on

See Daniel v. Five Stars Loyalty, Inc., No. 15-CV-

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Defendant’s website did not constitute advertising or

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telemarketing since it just informed plaintiff that joining a

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rewards program would result in free rewards points).

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messages “whose purpose is to facilitate, complete, or confirm a

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commercial transaction that the recipient has previously agreed

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to enter into with the sender are not advertisements[.]”

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re Rules & Regs. Implementing the Tel. Consum. Prot. Act of

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1991, 21 FCC Rcd. 3787, 3812 ¶ 49 (F.C.C., Apr. 6, 2006); see

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also Wick v. Twilio Inc., No. C16-00914RSL, 2017 WL 2964855

Also,

See In

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(W.D. Wash. July 12, 2017) (text message notifying the plaintiff

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that his order was incomplete and included a link to complete

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the order was not telemarketing because the message related to

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an order the plaintiff initiated).

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message to Plaintiff confirming his dinner reservation only

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served to confirm an expected commercial transaction (eating at

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Defendant’s restaurant) that Plaintiff had initiated.

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not an advertisement.

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Similarly, Defendant’s text

It was

In addition, the phrase “View specials” does not somehow

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convert the text message into an advertisement.

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initiated the dining transaction by making a reservation at

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Defendant’s restaurant.

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specials (even if it worked, which is apparently debated by the

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parties) would have facilitated Plaintiff’s dining transaction

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by allowing him to view specials on his cellphone before sitting

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down for dinner.

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49.

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See Compl. ¶ 18.

Plaintiff

The link to view

See In re Rules & Regs., 21 FCC Rcd. at 3812 ¶

Finally, Plaintiff cites Pedro-Salcedo v. Haagen-Dazs
Shoppe Co., No. 5:17-CV-03504-EJD, 2017 WL 4536422 (N.D. Cal.
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Oct. 11, 2017) in support of his argument that Defendant’s text

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message was an advertisement or telemarketing, however,

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case is from the Northern District of California and is not

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binding authority.

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this case.

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California found that the text message in that case arguably

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constituted an advertisement because the words “Thank you for

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joining Haagen-Dazs Rewards!

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that the transaction (registration for the rewards program) was

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the

Also, the facts are distinguishable from

In Pedro-Salcedo, the Northern District of

Download our app here:.” meant

complete without the text message.

Id. at *1-2.

Here, in contrast, Plaintiff received a text message that

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confirmed a reservation for an upcoming dinner that Plaintiff

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initiated.

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have facilitated the transaction that Plaintiff initiated

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(eating dinner at Defendant’s restaurant).

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on Pedro-Salcedo as persuasive or binding authority is,

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therefore, misplaced.

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receive an advertisement or telemarketing text message from

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Defendant.

See Compl. ¶ 18.

And the “View specials” link would

Plaintiff’s reliance

The Court finds that Plaintiff did not

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B.

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Because the Court finds that Defendant’s text message to

Allegations Regarding Consent

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Plaintiff was not an advertisement, Plaintiff’s written consent

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was not required before he received the text message.

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Larson, 2016 WL 6298528, at *4.

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express consent was required (whether written or not).

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Larson, 2016 WL 6298528, at *3.

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with express consent to receive a text message regarding his

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dinner reservation by providing his phone number to Defendant.

See

Instead, only Plaintiff’s
See

Plaintiff provided Defendant

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See Compl. ¶¶ 18, 20; see also Roberts v. PayPal, Inc., No. C

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12-0622 PJH, 2013 WL 2384242, at *3-5 (N.D. Cal. May 20, 2013)

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(finding that prior express consent to receive a call is given

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when the called party voluntarily proffers his telephone number

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to the calling party); see also Baird v. Sabre Inc., 995 F.

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Supp. 2d 1100, 1102-03, 1106-07 (C.D. Cal. 2014) (finding that

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Baird’s act of providing her cellphone number was a voluntary

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act and that, as a result, she consented to be contacted on her

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cellphone about flight-related matters).

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Since the Court has found that Plaintiff’s allegations

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establish that he provided the requisite consent to receive

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Defendant’s text message, the inquiry ends.

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and does not, reach the issue of (1) whether Defendant used an

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Automatic Telephone Dialing System (“ATDS”) in sending the text

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message giving rise to this lawsuit and (2) whether Plaintiff is

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within the zone of interest that Congress intended to be

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protected by the TCPA.

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The Court need not,

Finally, Plaintiff seeks leave to amend should the Court

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grant the motion to dismiss.

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not grant leave to amend where amendment would be futile.

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Deveraturda v. Globe Aviation Sec. Servs., 454 F.3d 1043, 1049-

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1050 (9th Cir. 2006).

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no facts that legally support his TCPA claim.

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not pointed to any additional facts showing that amendment could

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save his claim.

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///

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///

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///

Opp’n at 11.

But the Court need

As explained above, Plaintiff has pleaded
And Plaintiff has

The Court denies Plaintiff’s request.

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III.

ORDER

For the reasons above, the Court GRANTS Defendants’ motion
to dismiss WITH PREJUDICE.
IT IS SO ORDERED.
Dated: November 28, 2017

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