Morris v. SolarCity Corp.

Filing 51

ORDER by Judge Richard Seeborg denying 35 Motion to Dismiss.(cl, COURT STAFF) (Filed on 4/6/2016)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9 10 GEORGE MORRIS, Case No. 15-cv-05107-RS Plaintiff, 11 United States District Court Northern District of California v. ORDER DENYING MOTION TO DISMISS 12 13 SOLARCITY CORP., Defendant. 14 15 I. INTRODUCTION 16 17 This putative class action asserts that defendant SolarCity has violated Telephone 18 Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), by placing marketing telephone calls 19 to consumers that (1) utilized “an artificial or prerecorded voice” (“Robocalls”), and/or (2) utilized 20 an “automatic telephone dialing system” as defined under the TCPA (“autodialer calls”) and/or (3) 21 that were made to telephone numbers listed on the “National Do Not Call Registry.” SolarCity 22 moves to dismiss, contending that named plaintiff George Morris has not alleged sufficient facts to 23 show that any of the ten telephone calls he is complaining about were actually made by it, as 24 opposed to by some unspecified third party. SolarCity alternatively seeks to strike the class 25 allegations. Pursuant to Civil Local Rule 7-1(b), the motion has been submitted without oral 26 argument. 27 28 The first amended complaint alleges facts from which it may plausibly be inferred that the ten calls in question were placed by SolarCity or by a party closely enough connected to it for 1 liability to attach. That other plausible inferences could also be drawn, or that Morris may 2 ultimately be unable to prove that SolarCity is legally responsible for the calls, does not support 3 dismissal at the pleading stage. Nor are the challenges to class certification appropriately 4 addressed at this juncture. Accordingly, the motion will be denied. 5 II. BACKGROUND 6 Morris asserts that during a seventeen day period in October of 2015, SolarCity made ten 7 “robocalls” from various phone numbers to his residential telephone line “in order to sell him solar 9 panels.” To support his allegations that these calls were made by an automatic telephone dialing 10 system, Morris relies on the number of calls made, and on his further averment that each time he 11 United States District Court Northern District of California 8 answered one of these calls he heard a “pause or dead air before anyone on the line began to 12 speak.” 13 Morris alleges that when he answered or returned any of the calls, he was greeted by a 14 “computer-generated voice” identifying itself as “Rochelle.” The voice allegedly repeatedly 15 asked several questions “robotically and with the exact same intonation.” If plaintiff asked to 16 speak to a live person or a supervisor, “Rochelle” would either keep asking questions, laugh 17 without responding, claim she was a live person, or hang up. 18 During the last of the ten calls, Morris gave “Rochelle” a fictitious name and address, 19 neither of which he had ever provided to anyone else. The following day, Morris received a phone 20 call from a live operator who identified himself as a representative of SolarCity, and who asked 21 him to confirm the fictitious name and address he had given to “Rochelle.” 22 23 III. LEGAL STANDARD 24 A complaint must contain “a short and plain statement of the claim showing that the 25 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations are not 26 required,” a complaint must have sufficient factual allegations to “state a claim to relief that is 27 plausible on its face.” Ashcroft v. Iqbal, 566 U.S. 652, 678 (2009) (citing Bell Atlantic v. Twombly, 28 ORDER DENYING MOTION TO DISMISS CASE NO. 15-cv-05107-RS 2 1 550 U.S. 544, 570 (2007)). A claim is facially plausible “when the pleaded factual content allows 2 the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” 3 Id. This standard asks for “more than a sheer possibility that a defendant acted unlawfully.” Id. 4 The determination is a context-specific task requiring the court “to draw in its judicial experience 5 and common sense.” Id. at 1950. A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil 6 7 Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of 8 Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may 9 be based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 11 United States District Court Northern District of California 10 (9th Cir. 1990). When evaluating such a motion, the court must accept all material allegations in 12 the complaint as true, even if doubtful, and construe them in the light most favorable to the non- 13 moving party. Twombly, 550 U.S. at 570. “[C]onclusory allegations of law and unwarranted 14 inferences,” however, “are insufficient to defeat a motion to dismiss for failure to state a claim.” 15 Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at 16 555 (“threadbare recitals of the elements of the claim for relief, supported by mere conclusory 17 statements,” are not taken as true). 18 IV. DISCUSSION 19 SolarCity argues the allegations of the First Amended Complaint1 are insufficient to show 20 21 that it either placed the calls in dispute or can be held vicariously liable for some other entity 22 having done so. SolarCity points out that Morris does not claim that any of the robocallers stated 23 they were calling on behalf of SolarCity or mentioned SolarCity or its solar services by name. Nor 24 does Morris allege that SolarCity’s name appeared on the caller ID for any of those calls. 25 26 27 1 Morris responded to SolarCity’s motion to dismiss the original complaint by amending, rather than opposing the motion. ORDER DENYING MOTION TO DISMISS CASE NO. 15-cv-05107-RS 28 3 1 SolarCity characterizes Morris as therefore relying merely on the “temporal proximity” of 2 the live call from its representative to the call the preceding day. SolarCity insists there is “no 3 factual basis whatsoever, nor is there any legal authority, that would support an inference that 4 SolarCity made all of the alleged calls, based on these allegations alone.” The inference, 5 however, is not only possible, it is entirely plausible. 6 First, the only reasonable inference is that the ten robocalls were all made or directed by 7 the same entity or entities, given the allegations regarding their content and “Rochelle.” Second, it 8 is perfectly reasonable to infer Solar City was in some manner responsible for the prior calls, from 9 the fact that its live representative asked Morris to confirm the fictitious name and address he had 10 United States District Court Northern District of California 11 given to Rochelle. It is more than mere “temporal proximity.” SolarCity insists it is more reasonable to infer that the ten robocalls were placed by some 12 independent third party, from which it merely purchased the “sales lead,” without any knowledge 13 of, or responsibility for, potential TCPA violations. SolarCity points to an allegation in the First 14 Amended Complaint quoting an online consumer complaint about a “lead generator” known as 15 Solar America. While it certainly is plausible that the calls could have been made by some such 16 third party, it is not Morris’s burden at this juncture to come forward with allegations or evidence 17 conclusively negating the possibility that Solar City neither made the calls itself nor can be held 18 indirectly liable. He has alleged facts from which SolarCity’s direct or indirect liability may 19 plausibly be inferred. See Iqbal, 566 U.S. at 678 (stating a claim is facially plausible “when the 20 pleaded factual content allows the court to draw the reasonable inference that the defendant is 21 liable for the misconduct alleged.” ). 22 SolarCity distinguishes Charvat v. Allstate Corp., 29 F. Supp. 3d 1147 (N.D. Ill. 2014), a 23 case upon which Morris relies, on grounds that the complaint there specifically alleged a third 24 party caller specifically mentioned the defendant during the robocall, and even transferred the 25 plaintiff directly from a robocall to an internal representative of the defendant. While Charvat 26 may have presented a more clear case for indirect liability, it does not undermine the conclusion 27 that the allegations here are also sufficient to survive dismissal. ORDER DENYING MOTION TO DISMISS CASE NO. 15-cv-05107-RS 28 4 1 SolarCity’s challenge to the class allegations is not ripe for disposition at this point in time. 2 While class allegations may be stricken at the pleading stage in the appropriate case, doing so is 3 not warranted here. SolarCity’s contentions, if accepted, might alter the scope of the class 4 definitions and/or the particular claims that could go forward on a class basis, but it has not 5 presented any argument that would completely preclude class certification. As such, the points 6 SolarCity raises are better addressed in the context of a certification motion. 7 8 V. CONCLUSION 9 10 United States District Court Northern District of California 11 SolarCity’s motion to dismiss or to strike the class allegations is denied. SolarCity shall file an answer to the First Amended Complaint within 20 days of the date of this order. 12 13 14 IT IS SO ORDERED. 15 16 17 18 Dated: April 6, 2016 ______________________________________ RICHARD SEEBORG United States District Judge 19 20 21 22 23 24 25 26 27 ORDER DENYING MOTION TO DISMISS CASE NO. 15-cv-05107-RS 28 5

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