Tillage et al v. Comcast Corporation et al

Filing 183

Order by Judge Vince Chhabria granting in part and denying in part 129 Motion for Summary Judgment.(vclc1S, COURT STAFF) (Filed on 5/28/2021)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA

CHARLES TILLAGE, et al.,

Case No. 17-cv-06477-VC

Plaintiffs,
v.
COMCAST CORPORATION, et al.,
Defendants.

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY
JUDGMENT
Re: Dkt. No. 129

Tillage and Loomis are Comcast customers. Their claims under California statutes and
common law arise from what they say is Comcast’s deceptive scheme of promising a flat-rate
price for cable and internet services up front but failing to disclose certain fees—and the fact that
those fees can increase over the course of the contract—until after the consumer has already
committed to their chosen plan. For the reasons explained below, Comcast’s motion for
summary judgment as to Tillage’s and Loomis’s statutory claims is denied. Its motion as to their
claims for breach of contract is granted.

Statutory Claims
Tillage and Loomis each brought claims under California’s Unfair Competition Law,
False Advertising Law, and Consumers Legal Remedies Act. To prevail on each of these claims
at trial, the plaintiffs will have to prove essentially the same three elements: that they suffered
some economic injury, that Comcast engaged in a deceptive or unfair practice, and that the

deceptive practice caused their injury.1 When, as here, the deceptive practice takes the form of
misrepresentation, proving causation requires showing that the plaintiffs reasonably relied on
that misrepresentation in deciding to purchase Comcast’s services. Kwikset Corp. v. Superior
Court, 51 Cal. 4th 310, 326 (2011). At the summary judgment stage, the question is whether a
reasonable jury could infer from the evidence in the record that each of these elements was met.
With respect to the first element, a jury could readily conclude that Tillage and Loomis
each suffered the same economic injury: each bought a service plan that turned out to be more
expensive than they expected. Receiving the advertised cable services required paying two fees
above and beyond the advertised “sticker price:” the Broadcast TV Fee and the Regional Sports
Fee. Unlike government taxes and surcharges (which any reasonable consumer might expect),
Comcast charges these fees to defray the costs of providing what a reasonable consumer would
expect he is already paying for when he buys a cable package—the channels within the package
that show regional sports and broadcast television.
As to the second and third elements, misrepresentation and causation, the record is
specific to each plaintiff. And it is somewhat messy, particularly with respect to reliance.
Comcast’s strongest argument for summary judgment centers on the existence of a Minimum
Term Agreement, a contract that discloses the two challenged fees (and the fact that they could
increase within the two-year period) among other plan terms and limits. The Ninth Circuit,
following California courts, treats customers who have signed a contract as having read it,
because signing a contract without first reading it is categorically unreasonable. Davis v. HSBC
Bank Nevada, N.A., 691 F.3d 1152, 1163 (9th Cir. 2012). Here, if Tillage and Loomis each
plainly signed the Agreement, the Court would have to rule as a matter of law that they did not
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For purposes of the False Advertising Law claim, the deceptive practice must be in the form of
advertising. Comcast asserts that statements made by customer service representatives in
response to inquiries by individual consumers do not constitute “advertising,” but the California
Supreme Court has held that the law does encompass statements made under closely analogous
circumstances: a bank officer discussing the terms of an individual loan. Chern v. Bank of
America, 15 Cal. 3d 866, 875-76 (1976). The statements made to both plaintiffs by various
customer service representatives in the course of signing up for their plans (as described below)
therefore satisfy that requirement.

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reasonably rely on any representation that their service plans would not require them to pay the
two challenged fees. But on this record, the circumstances surrounding the Agreements
associated with each plaintiff’s service plan raise genuine fact issues as to whether either Tillage
or Loomis actually “signed” the Agreement or otherwise assented to its terms. It’s a close
question whether these plaintiffs can survive summary judgment, but ultimately their quirky fact
patterns do not allow a ruling in Comcast’s favor as a matter of law.
Tillage had Comcast services at one property beginning in 2014, and for about two years
was receiving and paying bills that listed the Broadcast TV Fee as an additional charge. In 2016
he moved and signed up for a new Comcast plan at his new apartment, and it is the terms of that
plan he challenges here. Tillage first signed up for internet and cable service through a
representative assigned to his complex, and although the details of that conversation are not in
the record, the transcripts of subsequent calls with Comcast representatives suggest that he came
away from that first interaction feeling bamboozled. On June 6 he called and spoke with a
representative named Cathy, who explained that his new plan was a 24-month contract priced at
$129.99 per month, and that he could cancel at no cost within 30 days of having signed up.
Cathy also helped Tillage schedule the equipment installation for his new plan on June 14.
Tillage then received two confirmation emails, one dated June 14 and the second dated two days
later. Both emails listed a total amount for “taxes, surcharges, and fees” and each provided a link
to view the Agreement associated with Tillage’s plan. From the record produced by Comcast,
that Agreement was generated on May 27 when Tillage first signed up through his complex
representative, but Tillage denies having ever received a hard copy or clicking on the emailed
link to view it. On June 16, Tillage also received his first billing statement, which explicitly
listed both the Broadcast TV Fee and the Regional Sports Fee. Finally, on July 2, Tillage called
Comcast once more, this time speaking with a representative named David. He complained that
the bill he received was for $142, rather than the $129.99 he expected. David explained that there
was a $10 charge for his internet modem but did not discuss other fees. Ultimately, Tillage
decided to keep his plan, even though at that point he was within the 30-day period and could

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have cancelled for free.
From this record, a reasonable jury could find that Comcast made a material
misrepresentation by omission when Cathy told Tillage that the plan would cost $129.99, when
in fact it would cost more because of the two challenged fees. Whether the jury could find that
Tillage reasonably relied on that misrepresentation is a much closer question, but ultimately there
is no evidence in the record that Comcast disclosed the fees at any point before Tillage was, as a
practical matter, committed to the plan. Although it is certainly relevant that he was paying the
Broadcast TV Fee for two years before signing up for the current plan, the record does not reflect
what he was promised with respect to the terms of the 2014 plan when he first signed up for it.
Without knowing the details of that conversation, the Court cannot definitively find that he
should have known to expect that fee to be charged on his new 2016 plan.
With respect to the Agreement, it does not bear Tillage’s signature, and the record only
shows that it was available to him by clicking the link in the confirmation emails. But Tillage
only received the first of those emails the day of his equipment installation, after he had spent a
considerable amount of time going through the process of signing up and scheduling the
installation. The same goes for his first billing statement: even though Tillage received it and was
therefore on notice of the added fees before the end of his 30-day cancellation period, that
disclosure came much too late to save him the headache of getting set up for service. Therefore it
cannot be said that his decision to continue with the current plan, rather than bear the temporal
and emotional costs of switching to either another provider or a lower-priced Comcast plan,
destroys the inference of reasonable reliance on Cathy’s upfront representation of the monthly
cost.
Loomis first signed up for Comcast’s services on June 19, 2016 through a salesperson at
a Verizon store, but like Tillage the record reflects that he was left frustrated by this first
interaction.2 On June 20 he entered an online chat with Comcast customer service representative
2

The only evidence of that initial encounter in the record is a confirmation sheet Loomis says he
was handed. Although the sheet discloses both fees in small print at the bottom of the page, there

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Nikko, who cancelled the order Loomis had placed at the store and then described to him a series
of different internet and cable packages available at different price points. In discussing one of
those packages, Nikko explained that the top-line price was “a package rate and does not include
taxes and fees.” When Loomis asked what “fees” were involved, Nikko responded that “Fees
will include your modem rental, DVR rental, and alike.” The next day, Loomis chatted with
another representative, Eunice, and decided to sign up for a new plan with a monthly rate of
$79.99. When it came time to complete the order, Eunice told Loomis to follow a link to a
webpage (without specifying what the webpage contained) and then do the following: “For the
ORDER ID NUMBER, please Click the Calendar Icon and choose the date today. Please,
provide to me the TRANSACTION ID NUMBER that appears on the next page so I can finalize
your order.” Loomis followed the link, which took him to a copy of the Agreement. He
apparently viewed at least some of the Agreement because he asked Eunice a question about the
mandatory two-year term disclosed in bold font at the top of the page. With that question
answered, he seems to have followed the remaining instructions and provided Eunice with a
transaction ID number. Eunice then confirmed that, all-in, his new monthly rate would be $89.99
“before taxes.” Later that day, Loomis entered yet another chat with a billing representative
named Surinder, apparently upset that his new rate was $89.99 rather than the $79.99 Eunice had
originally stated as the price for the package he selected. Surinder explained that there was a $10
monthly fee for HD service, and after some grumbling from Loomis agreed to waive that fee for
the next 12 months. Surinder then confirmed that “with these changes, your monthly bill would
be $79.99/mo + tax for the next 12 months.”
As with Tillage, a reasonable jury could find that Comcast made a material
misrepresentation when Eunice told Loomis that the monthly price would be $79.99 without

is so much scribbling and crossing-out of terms all over the page that it cannot be said to clearly
disclose much of anything. At any rate, because Loomis canceled this first plan upon discovering
that it would cost much more than the Verizon representative told him, the confirmation is not
relevant to the plan he challenges here—the one he ultimately signed up for through online chats
with Comcast agents.

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disclosing the two challenged fees. But the question of whether a jury could find that Loomis
reasonably relied on that misrepresentation is even closer than with Tillage. Unlike Tillage, there
is no doubt that Loomis was presented with the Agreement at the time he signed up for his plan,
and the copy of the Agreement produced in discovery has Loomis’s name written in next to a
date. Additionally, the button next to the option “Accept Agreement Terms” has been filled in.
On almost any other record, these facts would be fatal to Loomis’s claims in light of the Davis
rule. But the very particular circumstances presented by this record raise a genuine issue of fact
as to whether Loomis actually consented to the terms of the Agreement. Eunice’s instructions in
the chat did not describe “signing” or “agreeing to” the terms of the contract—she simply told
Loomis to click a date on a calendar and then provide a transaction number. At his deposition,
Loomis testified that he did not recall writing his name on the Agreement and thought that
Comcast had probably pre-populated it for him. When asked whether he had clicked the button
next to “Accept Agreement Terms,” Loomis said “presumably” but did not affirmatively recall
having done so. Taken as a whole, a reasonable jury could infer from these facts that a
reasonable consumer in Loomis’s position would not have necessarily understood that, by doing
as Eunice instructed, he was binding himself to the terms of the Agreement. The Davis
presumption that a reasonable consumer would read a contract before signing it therefore does
not apply, and the issue of whether the fees were actually disclosed to Loomis before he signed
up for his plan remains a contested issue of fact that must be decided by the jury.

Breach of Contract Claim
Summary judgment must be granted as to the breach of contract claim because, as
described above, the Agreement plainly disclosed the Broadcast TV Fee and the Regional Sports
Fee and that those fees could increase over the contract term. The plaintiffs’ arguments that their
contracts with Comcast consist only of the promises made to them in the various chats and
emails with customer representatives are absurd. Any reasonable consumer would understand
that a contract for two years of cable and internet service would include written terms and

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conditions, and in this case the Agreement plainly forms at least part of that writing. Since the
written contract requires customers to pay the two challenged fees in addition to the top-line
price, the fact that Comcast actually charged those fees cannot constitute a breach.

IT IS SO ORDERED.
Dated: May 28, 2021
______________________________________
VINCE CHHABRIA
United States District Judge

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