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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 ALU BANARJI, individually and on behalf of all others similarly situated, 15 16 ORDER DENYING MOTION FOR SUMMARY JUDGMENT Plaintiff, 13 14 Case No.: 3:14-cv-02967-BEN-KSC v. [ECF No. 64] WILSHIRE CONSUMER CREDIT, Defendant. 17 18 Plaintiff Alu Banarji initiated this action on December 17, 2014, alleging a 19 violation of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq. 20 She claims that Defendant Wilshire Consumer Credit (“Defendant” or “WCC”) 21 repeatedly called her cell phone without her prior express consent. WCC now moves for 22 partial summary judgment on the issue of Plaintiff’s standing to bring the TCPA claim. 23 (Mot., ECF No. 64.) For the reasons that follow, the Court DENIES WCC’s motion. 24 25 BACKGROUND The relevant facts are not in dispute. Sami Banarji, Plaintiff’s father, took out a 26 loan with WCC. On the application, Sami listed a cell phone number ending 0861 as his 27 own. In fact, that number belonged to Alu. Alu claims that she had no involvement with 28 Sami’s loan, except to pay a bill for him on occasion. 1 3:14-cv-02967-BEN-KSC 1 At some point, Sami failed to make a payment to WCC, and WCC began calling 2 the 0861 number to inquire about the debt. WCC used an automatic telephone dialing 3 system to dial the 0861 number. Alu received several calls from WCC. She asserts that 4 she was called constantly and being harassed. The calls irritated her. She asked WCC to 5 stop calling her cell phone multiple times, and asked Sami to also convey that message to 6 WCC. 7 LEGAL STANDARD 8 Summary judgment is appropriate when “there is no genuine dispute as to any 9 material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 10 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In 11 considering a summary judgment motion, the evidence of the nonmovant is to be 12 believed, and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 13 U.S. at 255. 14 A moving party bears the initial burden of showing there are no genuine issues of 15 material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). It can do so by 16 negating an essential element of the non-moving party’s case, or by showing that the non- 17 moving party failed to make a showing sufficient to establish an element essential to that 18 party’s case, and on which the party will bear the burden of proof at trial. Id. The burden 19 then shifts to the non-moving party to show that there is a genuine issue for trial. Id. 20 “Only disputes over facts that might affect the outcome of the suit under the 21 governing law will properly preclude the entry of summary judgment. Factual disputes 22 that are irrelevant or unnecessary will not be counted.” Anderson, 477 U.S. at 248. As a 23 general rule, the “mere existence of a scintilla of evidence” will be insufficient to raise a 24 genuine issue of material fact; there must be evidence on which the jury could reasonably 25 find for the non-moving party. Id. at 252. 26 DISCUSSION 27 The issue before the Court is whether Plaintiff has satisfied the injury in fact 28 requirement of Article III standing to pursue her TCPA claim. See Spokeo, Inc. v. 2 3:14-cv-02967-BEN-KSC 1 Robins, 136 S. Ct. 1540, 1547 (2016) (“[S]tanding consists of three elements. . . . The 2 plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the 3 challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable 4 judicial decision.”). To establish an injury in fact, a plaintiff must show that she 5 “suffered an invasion of a legally protected interest that is concrete and particularized and 6 actual or imminent, not conjectural or hypothetical.” Id. (citing Lujan v. Defenders of 7 Wildlife, 504 U.S. 555, 560 (1992)). Defendant WCC argues that but for the TCPA, 8 Plaintiff did not suffer a real, concrete injury. It relies on the Supreme Court’s decision 9 in Spokeo, which explained that a plaintiff does not “automatically satsif[y] the injury-in- 10 fact requirement whenever a statute grants a person a statutory right and purports to 11 authorize that person to sue to vindicate that right.” Id. at 1549. 12 The Ninth Circuit recently addressed a plaintiff’s standing to bring a TCPA claim 13 in light of Spokeo. See Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 14 2017). In general, the TCPA prohibits anyone from using an automatic telephone dialing 15 system to make an unsolicited call to a cell phone number without the called party’s prior 16 express consent. 47 U.S.C. § 227(b)(1)(A)(iii). In Van Patten, the Ninth Circuit 17 explained that, in enacting the TCPA, “Congress sought to protect consumers from the 18 unwanted intrusion and nuisance of unsolicited telemarketing phone calls and fax 19 advertisements.” 847 F.3d at 1043 (citing Pub. L. 102-243, § 2, ¶ 12.) The legislature 20 “identified unsolicited contact as a concrete harm, and gave consumers a means to redress 21 this harm.” Id. In rejecting the defendant’s challenge to plaintiff’s standing, the Ninth 22 Circuit held that “[u]nsolicited telemarketing phone calls or text messages, by their 23 nature, invade the privacy and disturb the solitude of their recipients. A plaintiff alleging 24 a violation under the TCPA ‘need not allege any additional harm beyond the one 25 Congress has identified.’” Id. (citing Spokeo, 136 S. Ct. at 1549). 26 In this case, WCC is not entitled to judgment as a matter of law on the ground that 27 Plaintiff does not have standing. Plaintiff has established that she received unsolicited, 28 automated calls to her cell phone from WCC, which is sufficient to confer Article III 3 3:14-cv-02967-BEN-KSC 1 standing under Van Patten. Plaintiff received five to seven calls a day. (Opp’n, Decl. of 2 Mona Amini, Ex. A at 66.) The calls disrupted and bothered her. (Id. at 29, 42, 94.) She 3 testified that she “kept getting harassed. They kept calling me constantly.” (Id. at 42.) 4 Viewing these facts in the light most favorable to Plaintiff, she has satisfied the injury in 5 fact requirement. WCC’s motion is DENIED. 6 7 IT IS SO ORDERED. Dated: April 5, 2017 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 3:14-cv-02967-BEN-KSC

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?