Morris v. SolarCity Corp.
Filing
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ORDER by Judge Richard Seeborg denying 35 Motion to Dismiss.(cl, COURT STAFF) (Filed on 4/6/2016)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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GEORGE MORRIS,
Case No. 15-cv-05107-RS
Plaintiff,
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United States District Court
Northern District of California
v.
ORDER DENYING MOTION TO
DISMISS
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SOLARCITY CORP.,
Defendant.
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I. INTRODUCTION
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This putative class action asserts that defendant SolarCity has violated Telephone
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Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”), by placing marketing telephone calls
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to consumers that (1) utilized “an artificial or prerecorded voice” (“Robocalls”), and/or (2) utilized
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an “automatic telephone dialing system” as defined under the TCPA (“autodialer calls”) and/or (3)
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that were made to telephone numbers listed on the “National Do Not Call Registry.” SolarCity
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moves to dismiss, contending that named plaintiff George Morris has not alleged sufficient facts to
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show that any of the ten telephone calls he is complaining about were actually made by it, as
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opposed to by some unspecified third party. SolarCity alternatively seeks to strike the class
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allegations. Pursuant to Civil Local Rule 7-1(b), the motion has been submitted without oral
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argument.
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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
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liability to attach. That other plausible inferences could also be drawn, or that Morris may
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ultimately be unable to prove that SolarCity is legally responsible for the calls, does not support
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dismissal at the pleading stage. Nor are the challenges to class certification appropriately
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addressed at this juncture. Accordingly, the motion will be denied.
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II. BACKGROUND
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Morris asserts that during a seventeen day period in October of 2015, SolarCity made ten
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“robocalls” from various phone numbers to his residential telephone line “in order to sell him solar
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panels.” To support his allegations that these calls were made by an automatic telephone dialing
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system, Morris relies on the number of calls made, and on his further averment that each time he
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United States District Court
Northern District of California
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answered one of these calls he heard a “pause or dead air before anyone on the line began to
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speak.”
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Morris alleges that when he answered or returned any of the calls, he was greeted by a
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“computer-generated voice” identifying itself as “Rochelle.” The voice allegedly repeatedly
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asked several questions “robotically and with the exact same intonation.” If plaintiff asked to
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speak to a live person or a supervisor, “Rochelle” would either keep asking questions, laugh
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without responding, claim she was a live person, or hang up.
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During the last of the ten calls, Morris gave “Rochelle” a fictitious name and address,
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neither of which he had ever provided to anyone else. The following day, Morris received a phone
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call from a live operator who identified himself as a representative of SolarCity, and who asked
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him to confirm the fictitious name and address he had given to “Rochelle.”
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III. LEGAL STANDARD
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A complaint must contain “a short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While “detailed factual allegations are not
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required,” a complaint must have sufficient factual allegations to “state a claim to relief that is
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plausible on its face.” Ashcroft v. Iqbal, 566 U.S. 652, 678 (2009) (citing Bell Atlantic v. Twombly,
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ORDER DENYING MOTION TO DISMISS
CASE NO. 15-cv-05107-RS
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550 U.S. 544, 570 (2007)). A claim is facially plausible “when the pleaded factual content allows
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the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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Id. This standard asks for “more than a sheer possibility that a defendant acted unlawfully.” Id.
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The determination is a context-specific task requiring the court “to draw in its judicial experience
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and common sense.” Id. at 1950.
A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil
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Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of
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Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Dismissal under Rule 12(b)(6) may
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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
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United States District Court
Northern District of California
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(9th Cir. 1990). When evaluating such a motion, the court must accept all material allegations in
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the complaint as true, even if doubtful, and construe them in the light most favorable to the non-
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moving party. Twombly, 550 U.S. at 570. “[C]onclusory allegations of law and unwarranted
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inferences,” however, “are insufficient to defeat a motion to dismiss for failure to state a claim.”
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Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at
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555 (“threadbare recitals of the elements of the claim for relief, supported by mere conclusory
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statements,” are not taken as true).
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IV. DISCUSSION
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SolarCity argues the allegations of the First Amended Complaint1 are insufficient to show
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that it either placed the calls in dispute or can be held vicariously liable for some other entity
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having done so. SolarCity points out that Morris does not claim that any of the robocallers stated
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they were calling on behalf of SolarCity or mentioned SolarCity or its solar services by name. Nor
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does Morris allege that SolarCity’s name appeared on the caller ID for any of those calls.
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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
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SolarCity characterizes Morris as therefore relying merely on the “temporal proximity” of
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the live call from its representative to the call the preceding day. SolarCity insists there is “no
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factual basis whatsoever, nor is there any legal authority, that would support an inference that
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SolarCity made all of the alleged calls, based on these allegations alone.” The inference,
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however, is not only possible, it is entirely plausible.
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First, the only reasonable inference is that the ten robocalls were all made or directed by
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the same entity or entities, given the allegations regarding their content and “Rochelle.” Second, it
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is perfectly reasonable to infer Solar City was in some manner responsible for the prior calls, from
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the fact that its live representative asked Morris to confirm the fictitious name and address he had
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United States District Court
Northern District of California
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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
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independent third party, from which it merely purchased the “sales lead,” without any knowledge
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of, or responsibility for, potential TCPA violations. SolarCity points to an allegation in the First
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Amended Complaint quoting an online consumer complaint about a “lead generator” known as
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Solar America. While it certainly is plausible that the calls could have been made by some such
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third party, it is not Morris’s burden at this juncture to come forward with allegations or evidence
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conclusively negating the possibility that Solar City neither made the calls itself nor can be held
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indirectly liable. He has alleged facts from which SolarCity’s direct or indirect liability may
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plausibly be inferred. See Iqbal, 566 U.S. at 678 (stating a claim is facially plausible “when the
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pleaded factual content allows the court to draw the reasonable inference that the defendant is
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liable for the misconduct alleged.” ).
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SolarCity distinguishes Charvat v. Allstate Corp., 29 F. Supp. 3d 1147 (N.D. Ill. 2014), a
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case upon which Morris relies, on grounds that the complaint there specifically alleged a third
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party caller specifically mentioned the defendant during the robocall, and even transferred the
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plaintiff directly from a robocall to an internal representative of the defendant. While Charvat
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may have presented a more clear case for indirect liability, it does not undermine the conclusion
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that the allegations here are also sufficient to survive dismissal.
ORDER DENYING MOTION TO DISMISS
CASE NO. 15-cv-05107-RS
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SolarCity’s challenge to the class allegations is not ripe for disposition at this point in time.
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While class allegations may be stricken at the pleading stage in the appropriate case, doing so is
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not warranted here. SolarCity’s contentions, if accepted, might alter the scope of the class
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definitions and/or the particular claims that could go forward on a class basis, but it has not
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presented any argument that would completely preclude class certification. As such, the points
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SolarCity raises are better addressed in the context of a certification motion.
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V. CONCLUSION
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United States District Court
Northern District of California
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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.
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IT IS SO ORDERED.
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Dated: April 6, 2016
______________________________________
RICHARD SEEBORG
United States District Judge
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ORDER DENYING MOTION TO DISMISS
CASE NO. 15-cv-05107-RS
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