Esparza v. Smartpay Leasing, Inc.

Filing 64

ORDER DENYING 61 MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION by Judge William Alsup. (whalc1, COURT STAFF) (Filed on 5/10/2018)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 11 For the Northern District of California United States District Court 10 12 Plaintiff, 13 14 15 16 No. C 17-03421 WHA SHAWN ESPARZA, on behalf of herself, and all others similarly situated, ORDER DENYING LEAVE TO FILE MOTION FOR RECONSIDERATION v. SMARTPAY LEASING, INC., Defendant. / 17 18 An order dated April 20 summarized the ruling made on the record at the April 17 19 discovery hearing (Dkt. No. 59). The April 20 order directed defendant to respond to plaintiff’s 20 Request for Production of Documents Number 27, which sought a list containing the (1) date, 21 (2) time, and (3) phone number for each instance in which defendant sent a text message 22 “simultaneously or within seconds” of the user sending a text message opting out of future 23 communications. 24 At the discovery hearing, the undersigned judge observed that if defendant conceded 25 that any TCPA violation as to plaintiff was willful then the requested discovery may be 26 unnecessary (Dkt. No. 60 at 10:10–13). Defendant declined to make such a concession. The 27 undersigned judge accordingly concluded that the requested information was relevant to 28 whether or not any TCPA violation as to plaintiff was willful or knowing. The April 20 order directed defendant to respond to plaintiff’s discovery request by April 30 at noon. 1 In defendant’s motion for reconsideration, defense counsel states that she lacked 2 authorization to make a concession regarding willfulness at the time of the discovery hearing. 3 Having further discussed the matter with her client, however, counsel now has such 4 authorization. Defendant accordingly seeks leave to file a motion for reconsideration of the 5 April 20 order. Plaintiff opposes. 6 Having considered plaintiff’s opposition, this order agrees that the extent of defendant’s 7 willfulness with respect to any TCPA violation would be relevant to determining whether or not 8 to award treble damages. An award of treble damages is not automatic upon a finding of willful 9 or knowing conduct. Rather, upon finding that a defendant willfully or knowingly violated the TCPA, “the court may, in its discretion,” increase the amount of the damages award to an 11 For the Northern District of California United States District Court 10 amount “not more than 3 times” the amount otherwise available under the statute. 8 U.S.C. § 12 227(b)(3) (emphasis added). Although defendant has offered to concede willfulness, it has not 13 offered to concede treble damages. Defendant’s request for leave to file a motion for 14 consideration of the April 20 order is DENIED. 15 16 By MAY 17, defendant shall file a notice with the Court confirming that it has complied with the April 20 order. Plaintiff’s request for sanctions is DENIED. 17 IT IS SO ORDERED. 18 19 Dated: May 10, 2018. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 20 21 22 23 24 25 26 27 28 2

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