Stavrinides v. Pacific Gas and Electric Company

Filing 36

ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR LEAVE TO AMEND by Judge William Alsup [granting in part and denying in part 27 Motion for Leave to File ]. (whasec, COURT STAFF) (Filed on 6/16/2016)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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ELIAS STAVRINIDES,

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For the Northern District of California

United States District Court

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Plaintiff,

No. C 16-00433 WHA

v.
PACIFIC GAS AND ELECTRIC
COMPANY,

ORDER GRANTING IN PART
AND DENYING IN PART
MOTION FOR LEAVE TO AMEND

Defendant.
/

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INTRODUCTION

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In this civil action provoked by telephone calls to collect a debt, plaintiff moves for leave

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to amend following an order of dismissal. For the reasons explained below, plaintiff’s motion is

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GRANTED in part and DENIED in part.

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STATEMENT
Pro se plaintiff Elias Stavrinides filed a lawsuit against defendant Pacific Gas & Electric

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Company in July 2015, asserting claims for violations of the Telephone Consumer Protection

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Act, Fair Debt Collection Practices Act, and California’s Rosenthal Act (Case No. 15-cv-3118

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WHA). Plaintiff based all of his claims on an automated phone call he received from PG&E in

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April 2015. PG&E promptly filed a motion to dismiss that complaint. Plaintiff failed to respond

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to the motion, so an order to show cause issued. Plaintiff did not respond to that order either, so

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a second order to show cause issued, warning that not responding would result in dismissal for

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failure to prosecute. Plaintiff failed to respond, so an order then dismissed plaintiff’s case for

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failure to prosecute. Judgment was entered against him.

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Plaintiff commenced this action in January 2016, three months after his previous case

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was dismissed. Plaintiff asserted substantially the same claims with two substantive differences.

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First, plaintiff alleged that he received automated phone calls in February, May and July of 2015

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(all of which he received before filing the 2015 complaint) and another call in January 2016.

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Second, plaintiff added a claim for intentional infliction of emotional distress. The new

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complaint essentially alleged that PG&E engaged in a years-long scheme to intentionally

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and maliciously harass him via automated calls requesting payment of a debt.
Defendant promptly moved to dismiss and dismissal was granted. The dismissal order

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For the Northern District of California

United States District Court

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gave plaintiff the opportunity to file a motion for leave to amend. Plaintiff filed the instant

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motion and appended a proposed amended complaint reciting the same TCPA and intentional

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infliction of emotional distress claims.

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ANALYSIS

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Under Rule 15, leave to amend should be freely given absent undue delay, bad faith or

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dilatory motive, repeated failure to cure deficiencies, futility of amendment, and prejudice to

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the opposing party. Foman v. Davis, 371 U.S. 178, 182 (1962). The general rule that parties be

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allowed to amend does not extend to situations where amendment would be an exercise in

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futility or where the amended complaint would also be subject to dismissal. Steckman v. Hart

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Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998). “Futility of amendment can, by itself,

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justify the denial of a motion for leave to amend.” Bonin v. Calderon, 59 F.3d 815, 845 (9th Cir.

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1995).

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The doctrine of res judicata precludes an action when there is: (1) a final judgment on

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the merits, (2) privity between the parties, and (3) an identity of claims. United States v.

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Liquidators of European Fed. Credit Bank, 630 F.3d 1139, 1150 (9th Cir. 2011). The most

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important criterion in determining the identity of claims is whether the two actions arise out of

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“the same transactional nucleus of facts.” This inquiry “is the same inquiry as whether the claim

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could have been brought in the previous action.” Id. at 1151. Res judicata thus precludes claims
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that could have been raised in the previous action but were not. Hiser v. Franklin, 94 F.3d 1287,

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1290–91 (9th Cir. 1996).

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Here, res judicata bars the lion’s share of the proposed amended complaint.

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The dismissal of the previous action for failure to prosecute was a final judgment on the merits

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under Rule 41(b), which clearly provides that a dismissal for failure to prosecute “operates as an

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adjudication on the merits” unless the order states otherwise. The previous action also involved

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the same parties. Moreover, the first three claims of the proposed amended complaint alleging

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violations of the TCPA are based on calls that plaintiff received from PG&E before filing the

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2015 complaint. The claims arise out of the same nucleus of fact as the 2015 action and are

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For the Northern District of California

United States District Court

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barred by res judicata.
In his proposed amended complaint, plaintiff argues that each phone call is “separate and

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distinct” and therefore not subject to the doctrine of res judicata (Proposed First Amd. Compl.

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¶¶ 12, 15, 17, 20). Not so. The claims based on the February, May, and July 2015 phone

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calls could have been raised in the 2015 complaint. Accordingly, those claims are barred by

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res judicata.

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The TCPA claim based on the January 2016 call, however, is not barred by res judicata

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and states a valid claim. This Court’s order dismissing plaintiff’s most recent complaint

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provided that to state a claim under the TCPA based on the January 2016 phone call, plaintiff

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needed to allege facts plausibly demonstrating that he was charged for the call and that PG&E

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used an automatic telephone dialing system (Dkt. No. 24). The previous order, however, did not

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acknowledge the TCPA’s use of the disjunctive “or.” Under the TCPA, a defendant is prohibited

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from making “any call . . . using any automatic telephone dialing system or an artificial or

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prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . or

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any service for which the called party is charged for the call.” 47 U.S.C. 227(b)(1)(A)(iii)

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(emphasis added). The operative terms are connected by the conjunction “or,” which “is almost

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always disjunctive, that is, the words it connects are to be given separate meanings.” Loughrin v.

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United States, — U.S. —, 134 S. Ct. 2384, 2390 (2013). Thus, the TCPA “prohibits using an

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automatic telephone dialing system, an artificial voice, or a prerecorded voice” to call a cell
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phone or any service for which the called party is charged for the call. Iniguez v. The CBE

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Group, 969 F. Supp. 2d 1241, 1247–48 (E.D. Cal. 2013) (Judge John Mendez) (emphasis

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added).

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Plaintiff alleges in both his complaint and his proposed amended complaint that PG&E

He further alleges in his proposed amended complaint that “[t]he call was not made by human

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hands nor [sic] any conversation with [sic] a human being” (Proposed First Amd. Compl. ¶ 19).

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That the call was made using an artificial or prerecorded voice is a factual allegation based on

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plaintiff’s own experience in answering the call and is not a legal conclusion. See Vaccaro v.

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CVS Pharmacy, Inc., No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *2 (S.D. Cal. July 16,

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For the Northern District of California

called his cell phone using “artificial or prerecorded voices, leaving a prerecorded message.”

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United States District Court

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2013) (Judge Irma Gonzalez). Plaintiff did not need to additionally allege that an automatic

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telephone dialing system was used or that he was charged for the call. Both the complaint and

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the proposed amended complaint state a valid claim under the TCPA based on the January 2016

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call.

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Defendant argues that to state a claim under the TCPA, plaintiff must allege that he did

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not give prior express consent to the January 2016 call (Opp. 3). Not so. Our court of appeals

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has stated (emphasis added):

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Calls otherwise in violation of the TCPA are not unlawful if made
“for emergency purposes or made with the prior express consent
of the called party,” 47 U.S.C. § 227(b)(1)(A); however, “express
consent” is not an element of a TCPA plaintiff’s prima facie case,
but rather is an affirmative defense for which the defendant bears
the burden of proof.

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Grant v. Capital Mgmt. Servs., L.P., 449 Fed. Appx. 598, 600 n.1 (9th Cir. 2011). This is
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consistent with the Federal Communications Commission’s regulations, which state that the
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caller bears the burden of proving “it obtained the necessary prior express consent if any
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question of consent is in dispute.” In the Matter of Rules & Regulations Implementing the Tel.
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Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7994 (July 10, 2015).
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The undersigned judge previously recognized that the consent exception is an affirmative
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defense, not an element of a TCPA claim, at the pleading stage. Heinrichs v. Wells Fargo Bank,
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N.A., No. C 13-05434 WHA, 2014 WL 985558, at *2–3 (N.D. Cal. Mar. 7, 2014). District
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courts in this circuit have also consistently acknowledged that the plaintiff need not allege lack

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of consent to state a TCPA claim. See e.g., Sepehry-Fard v. Dep’t Stores Nat’l Bank,

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No. 13-CV-03131-WHO, 2013 WL 6574774, at *11 (N.D. Cal. Dec. 13, 2013) (Judge William

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Orrick) (“[C]onsent is a defense that does not need to be plead [sic] by plaintiff.”); Connelly v.

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Hilton Grant Vacations Co., LLC, No. 12CV599 JLS KSC, 2012 WL 2129364, at *3 (S.D. Cal.

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June 11, 2012) (Judge Janis Sammartino) (“Whether Plaintiffs gave the required prior express

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consent is an affirmative defense to be raised and proved by a TCPA defendant . . . and is not

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an element of Plaintiffs’ TCPA claim.”).

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Defendant nevertheless argues that plaintiff’s reference in the proposed amended
complaint to his April 2015 letter — a notice of intent to sue and commence action against

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For the Northern District of California

United States District Court

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PG&E — shows he consented to the January 2016 call. This order may consider the letter

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because it is referenced in the complaint and neither party questions its authenticity.

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See Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). At the end of the letter,

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plaintiff stated that PG&E had ten days to contact him regarding settlement, otherwise he would

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commence litigation. Plaintiff provided his cell phone number, but with the instruction that it

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only be used to contact him regarding settlement. “[P]ersons who knowingly release their phone

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numbers have in effect given their invitation or permission to be called at the number which they

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have given, absent instructions to the contrary.” “The scope of consent must be determined upon

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the facts of each situation.” In the Matter of Rules & Regulations Implementing the Tel.

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Consumer Prot. Act of 1991, 30 FCC Rcd. at 7990, 8028. Here, plaintiff argues he gave clear

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instructions limiting the scope of his consent. Whether plaintiff consented to calls regarding the

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settlement of his outstanding account or only to calls regarding the settlement of the threatened

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litigation is a question of fact.

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Even assuming arguendo that the 2015 letter constituted prior express consent, it does

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not follow that plaintiff consented to the January 2016 call. “[T]he consumer may revoke his or

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her consent in any reasonable manner that clearly expresses his or her desire not to receive

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further calls.” Id. at 7998–99. In July 2015, plaintiff brought suit against defendant alleging he

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had never given defendant permission to call his cell phone. Whether filing a lawsuit claiming
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defendant violated the TCPA is a reasonable manner of expressing a clear desire not to receive

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any further calls is also a question of fact.

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Although leave to amend does not extend to situations in which the amended complaint

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would also be subject to dismissal, that is not the case here. Defendant’s affirmative defense

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of prior express consent raises questions of fact that cannot be properly resolved at this stage.

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Plaintiff properly alleged a violation of the TCPA based on the January 2016 call.

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The intentional infliction of emotional distress claim in the proposed amended complaint

the extent it is predicated on the January 2016 call. To state a claim for intentional infliction of

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emotional distress, a plaintiff must plead facts showing: “(1) extreme and outrageous conduct by

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For the Northern District of California

is barred by res judicata insofar as it relies entirely on the 2015 calls and fails to state a claim to

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United States District Court

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the defendant with the intention of causing, or reckless disregard of the probability of causing,

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emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the

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plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.”

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Cochran v. Cochran, 65 Cal. App. 4th 488, 494 (1998). To satisfy the first requirement, the

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alleged conduct “must be so outrageous in character, and so extreme in degree, as to go beyond

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all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

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civilized community.” Id. at 496. The January 2016 call — even when considered together

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with the February, May, and July 2015 calls as part of a pattern of conduct — does not rise to

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this level. The proposed amended complaint alleges plaintiff received four calls over the course

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of a year, which continued after an employee promised the calls would stop and after plaintiff

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filed the 2015 complaint. None of these allegations allow an inference of “extreme and

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outrageous” conduct. Amendment would be futile because plaintiff’s proposed amended

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complaint fails to state an intentional infliction of emotional distress claim.

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CONCLUSION
Plaintiff’s motion for leave to amend is GRANTED in part and DENIED in part.

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Paragraphs 11–12, 14–17, 20, 25–49, and 58–62 are stricken. The phrases “and intentional

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infliction of emotional distress” in paragraph 2, “in attempt to inflict severe emotional distress”

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in paragraph 3, and “and supplemental jurisdiction exists for the state law claims pursuant to
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28 U.S.C. § 1367” in paragraph 4 are also stricken. The operative complaint consists of the

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remainder of paragraphs 2–4 and paragraphs 1, 5–10, 13, 18–19, 21–24, and 50–57 in their

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entirety. An answer to the operative parts of the amended complaint must be filed within

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FOURTEEN CALENDAR DAYS.

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already effectively addressed Rule 12 issues in opposing plaintiff’s motion for leave to amend.

No more Rule 12 motions shall be made, since defendant has

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IT IS SO ORDERED.

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Dated: June 16, 2016.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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For the Northern District of California

United States District Court

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