Banarji v. Wilshire Consumer Credit

Filing 71

ORDER denying 64 Motion for Partial Summary Judgment. Signed by Judge Roger T. Benitez on 4/5/2017. (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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ALU BANARJI, individually and on
behalf of all others similarly situated,

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ORDER DENYING MOTION FOR
SUMMARY JUDGMENT

Plaintiff,

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Case No.: 3:14-cv-02967-BEN-KSC

v.
[ECF No. 64]

WILSHIRE CONSUMER CREDIT,
Defendant.

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Plaintiff Alu Banarji initiated this action on December 17, 2014, alleging a

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violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq.

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She claims that Defendant Wilshire Consumer Credit (“Defendant” or “WCC”)

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repeatedly called her cell phone without her prior express consent. WCC now moves for

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partial summary judgment on the issue of Plaintiff’s standing to bring the TCPA claim.

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(Mot., ECF No. 64.) For the reasons that follow, the Court DENIES WCC’s motion.

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BACKGROUND
The relevant facts are not in dispute. Sami Banarji, Plaintiff’s father, took out a

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loan with WCC. On the application, Sami listed a cell phone number ending 0861 as his

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own. In fact, that number belonged to Alu. Alu claims that she had no involvement with

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Sami’s loan, except to pay a bill for him on occasion.
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At some point, Sami failed to make a payment to WCC, and WCC began calling

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the 0861 number to inquire about the debt. WCC used an automatic telephone dialing

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system to dial the 0861 number. Alu received several calls from WCC. She asserts that

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she was called constantly and being harassed. The calls irritated her. She asked WCC to

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stop calling her cell phone multiple times, and asked Sami to also convey that message to

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WCC.

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LEGAL STANDARD

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Summary judgment is appropriate when “there is no genuine dispute as to any

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material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

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56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In

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considering a summary judgment motion, the evidence of the nonmovant is to be

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believed, and all justifiable inferences are to be drawn in his or her favor. Anderson, 477

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U.S. at 255.

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A moving party bears the initial burden of showing there are no genuine issues of

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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can do so by

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negating an essential element of the non-moving party’s case, or by showing that the non-

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moving party failed to make a showing sufficient to establish an element essential to that

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party’s case, and on which the party will bear the burden of proof at trial. Id. The burden

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then shifts to the non-moving party to show that there is a genuine issue for trial. Id.

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“Only disputes over facts that might affect the outcome of the suit under the

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governing law will properly preclude the entry of summary judgment. Factual disputes

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that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. As a

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general rule, the “mere existence of a scintilla of evidence” will be insufficient to raise a

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genuine issue of material fact; there must be evidence on which the jury could reasonably

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find for the non-moving party. Id. at 252.

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DISCUSSION

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The issue before the Court is whether Plaintiff has satisfied the injury in fact

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requirement of Article III standing to pursue her TCPA claim. See Spokeo, Inc. v.
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Robins, 136 S. Ct. 1540, 1547 (2016) (“[S]tanding consists of three elements. . . . The

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plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the

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challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable

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judicial decision.”). To establish an injury in fact, a plaintiff must show that she

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“suffered an invasion of a legally protected interest that is concrete and particularized and

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actual or imminent, not conjectural or hypothetical.” Id. (citing Lujan v. Defenders of

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Wildlife, 504 U.S. 555, 560 (1992)). Defendant WCC argues that but for the TCPA,

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Plaintiff did not suffer a real, concrete injury. It relies on the Supreme Court’s decision

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in Spokeo, which explained that a plaintiff does not “automatically satsif[y] the injury-in-

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fact requirement whenever a statute grants a person a statutory right and purports to

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authorize that person to sue to vindicate that right.” Id. at 1549.

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The Ninth Circuit recently addressed a plaintiff’s standing to bring a TCPA claim

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in light of Spokeo. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir.

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2017). In general, the TCPA prohibits anyone from using an automatic telephone dialing

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system to make an unsolicited call to a cell phone number without the called party’s prior

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express consent. 47 U.S.C. § 227(b)(1)(A)(iii). In Van Patten, the Ninth Circuit

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explained that, in enacting the TCPA, “Congress sought to protect consumers from the

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unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax

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advertisements.” 847 F.3d at 1043 (citing Pub. L. 102-243, § 2, ¶ 12.) The legislature

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“identified unsolicited contact as a concrete harm, and gave consumers a means to redress

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this harm.” Id. In rejecting the defendant’s challenge to plaintiff’s standing, the Ninth

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Circuit held that “[u]nsolicited telemarketing phone calls or text messages, by their

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nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging

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a violation under the TCPA ‘need not allege any additional harm beyond the one

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Congress has identified.’” Id. (citing Spokeo, 136 S. Ct. at 1549).

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In this case, WCC is not entitled to judgment as a matter of law on the ground that

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Plaintiff does not have standing. Plaintiff has established that she received unsolicited,

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automated calls to her cell phone from WCC, which is sufficient to confer Article III
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standing under Van Patten. Plaintiff received five to seven calls a day. (Opp’n, Decl. of

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Mona Amini, Ex. A at 66.) The calls disrupted and bothered her. (Id. at 29, 42, 94.) She

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testified that she “kept getting harassed. They kept calling me constantly.” (Id. at 42.)

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Viewing these facts in the light most favorable to Plaintiff, she has satisfied the injury in

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fact requirement. WCC’s motion is DENIED.

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IT IS SO ORDERED.
Dated: April 5, 2017

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