Crooks et al v. Rady Children's Hospital - San Diego

Filing 15

ORDER: The motion to stay, motion to strike class allegations, and motion to dismiss the Complaint is denied. (Dkt # 9 ). Signed by Judge William Q. Hayes on 10/10/2017. (mdc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TANEESHA CROOKS, individually
and on behalf of all others similarly
situated; ANTHONY BROWN,
individually and on behalf of all others
similarly situated,

CASE NO. 17cv246-WQH-MDD
ORDER

Plaintiffs,
v.
RADY CHILDREN’S HOSPITAL,

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Defendant.

16 HAYES, Judge:
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The matter before this Court is the motion to stay proceedings, strike class

18 allegations, or in the alternative, dismiss the complaint filed by Defendant Rady
19 Children’s Hospital. (ECF No. 9).
20 I. BACKGROUND
21

On February 8, 2017, Plaintiffs Taneesha Crooks and Anthony Brown initiated

22 this action by filing a Complaint alleging two causes of action under the Telephone
23 Consumer Protection Act (“TCPA”) against Defendant Rady Children’s Hospital: (1)
24 negligent violations of the TCPA, 47 U.S.C. § 227 et seq., and (2) knowing and/or
25 willful violations of the TCPA, 47 U.S.C. § 227, et seq. (ECF No. 1).
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On March 15, 2017, Defendant moved the Court for an order (1) staying all

27 proceedings until a decision is rendered by the D.C. Circuit Court in ACA Int’l v. Fed.
28 Comm’cns Comm’n, et al., No. 15-1221 (D.C. Cir. 2015); (2) striking Plaintiffs’ class
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1 allegations pursuant to Rule 12(f); or (3) dismissing the Complaint for failure to state
2 a claim pursuant to Rule 12(b)(6) or for lack of standing pursuant to Rule 12(b)(3).
3 (ECF No. 9). On April 10, 2017, Plaintiffs filed a response in opposition.1 (ECF No.
4 12). On April 17, 2017, Defendant filed a reply. (ECF No. 13).
5 II. ALLEGATIONS OF THE COMPLAINT
6

Plaintiff Brown incurred a debt to Defendant sometime in 2012. (ECF No. 1 at

7 ¶ 10). “On or before April 11, 2016, Defendant, through its agent, Rady Children’s
8 Specialists, began calling Plaintiff Brown’s cellular telephone ending with ‘3623’. . .
9 via an ‘automatic telephone dialing system’ (‘ATDS’), while using an ‘artificial or
10 prerecorded voice’ . . . .” Id. ¶ 11. On or about April 11, 2016, counsel for Plaintiff
11 Brown “faxed and mailed cease and desist letters to Defendant’s multiple locations”
12 revoking any prior express consent that may have been given to receive such telephone
13 calls. Id. ¶ 12.
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On April 18, 2016, Defendant’s agent, Rady Children’s Specialists, confirmed

15 receipt of the cease and desist correspondence from April 11, 2016 in a fascimile
16 correspondence to Plaintiff Brown’s counsel. Id. ¶ 15. “[O]n December 23, 2016,
17 Defendant continued calling Plaintiff Brown’s cellular phone . . . via an [ATDS].” Id.
18 ¶ 16. “When Plaintiff Brown answered Defendant’s phone call on December 23, 2016,
19 an artificial or prerecorded voice message remind[ed] Plaintiff Brown of the existence
20 of the alleged debt.” Id. ¶ 17. Plaintiff Brown “never provided Defendant with his
21 cellular telephone number at the time the alleged debt relating to the calls was incurred”
22 and “if any prior express consent was ever given, it was expressly revoked by the
23 correspondence of April 11, 2016.” Id. ¶ 18.
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Prior to October 2016, Plaintiff Crooks incurred a debt to Defendant. Id. ¶ 20.

25 “On or about October 14, 2016, . . . Defendant, through its agent, Rady Children’s
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Plaintiffs filed a request for judicial notice of various proceedings in other
27 courts in support of their opposition to Defendant’s motion. (ECF No. 12-1). The
Court denies this request for judicial notice as unnecessary. See, e.g., Asvesta v.
28 Petroutsas, 580 F.3d 1000, 1010 n.12 (9th Cir. 2009) (denying request for judicial
notice where judicial notice would be “unnecessary”).
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1 Specialists, began calling Plaintiff Crooks’ cellular phone ending with ‘2044’ via an
2 [ATDS], while using an ‘artificial or prerecorded voice,’ . . . .” Id. ¶ 21. On October
3 21, 2016, counsel for Plaintiff Crooks “faxed and mailed a cease and desist letter to
4 Defendant’s multiple locations” revoking any prior express consent that may have been
5 given to receive such telephone calls. Id. ¶ 23. “[O]n November 4, 2016 Defendant
6 continued calling Plaintiff Crooks’ cellular phone . . . via an [ATDS] with unsolicited
7 prerecorded messages.” Id. ¶ 24.
8

“[B]oth Plaintiffs suffered an invasion of their legally protected interest in

9 privacy . . . .” Id. ¶ 26. “Upon information and belief, the telephone equipment used
10 by Defendant to place the calls at issue has the capacity to dial [a] telephone number
11 automatically from a stored list or database without human intervention, using a random
12 or sequential number generator.” Id. ¶ 27. The calls “were placed to a telephone
13 number assigned to a cellular telephone service for which Plaintiffs incur a charge for
14 incoming calls[.]” Id. ¶ 29. Plaintiffs were “personally affected” by the calls because
15 Plaintiffs were “frustrated and distressed that . . . Defendant interrupted Plaintiffs with
16 unwanted calls using an ATDS and/or prerecorded voice.” Id. ¶ 31. “Defendant’s calls
17 forced Plaintiffs and other similarly situated class members to live without the utility
18 of their cellular phones by occupying their cellular telephone with one or more
19 unwanted calls, causing a nuisance and lost time.” Id. ¶ 32.
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“Plaintiffs bring this action on behalf of themselves and all other similarly

21 situated (the ‘Class’).” Id. ¶ 35. Plaintiffs define the class as,
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All persons within the United States who received any telephone call from
Defendant or its agent/s and/or employee/s, not sent for emergency
purposes, to said person’s cellular telephone made through the use of any
automatic telephone dialing system and/or with an artificial or prerecorded
message within the four years prior to the filing of this Complaint.

25 Id. ¶ 36. Plaintiffs request injunctive relief and statutory damages. Id. at 12.
26 III. MOTION TO STAY
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Defendant requests a stay of this entire matter pending the decision in ACA Int’l

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1 v. Fed. Commc’ns Comm’n, No. 15-1221 (D.C. Cir. 2015).2 Defendant contends that
2 a stay is warranted because the D.C. Circuit is considering a challenge to the Federal
3 Communications Commission’s (“FCC”) interpretation of certain provisions of the
4 TCPA which are “directly relevant to the issues of potential liability and damages in
5 this matter.” (ECF No. 9 at 2). Defendant contends that “[b]ecause ACA International
6 challenges the FCC’s interpretations of the definition of ATDS, the definition of ‘called
7 party’ under the TCPA, and the methods to revoke express consent, the issues before
8 the D.C. Circuit in ACA International will substantially impact the issues of potential
9 liability and damages in the present matter.” (ECF No. 9-1 at 12). Defendant contends
10 that any prejudice to Plaintiffs caused by a stay is minimal. Defendant contends that
11 it will suffer hardship if this action is not stayed due to unnecessary discovery and trial
12 preparation and that a stay will save judicial resources. Id. at 13–14.
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Plaintiffs contend that they would be “significantly prejudiced” by an unknown

14 and indefinite delay in conducting discovery. (ECF No. 12 at 19). Plaintiffs assert that
15 “it is far from guaranteed that a final result in ACA International is imminently
16 forthcoming.” Id. at 19. Plaintiffs contend that the decision in ACA International is
17 irrelevant to multiple issues in this action because this case involves prerecorded calls.
18 Id. at 21. Plaintiffs contend that this Court is bound by existing Ninth Circuit precedent
19 and the FCC definition of ATDS under the 2003 and 2008 declaratory rulings. Id. at
20 22–23. Plaintiffs contend that the D.C. Circuit will likely decide the ATDS issue
21 favorably to Plaintiffs. Id. at 22. Plaintiffs contend that any burden of producing
22 discovery on Defendant does not justify a stay. Id.
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“The power to stay proceedings is incidental to the power inherent in every court

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Courts may take judicial notice of “proceedings in other courts, both within and
25 without the federal judicial system, if those proceedings have a direct relation to matters
at issue.” U.S. ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d
26 244, 248 (9th Cir. 1992) (citation and internal quotations omitted). The Court grants
Defendant’s request for judicial notice (ECF No. 9-2) and takes judicial notice of the
27 following documents pursuant to Federal Rule of Evidence 201: (1) Joint Brief for
Petitioners Document #1600622, ACA Int’l v. Fed. Commc’ns Comm’n (Dec. 24, 2016)
28 No. 15-12115, and (2) Court of Appeal Docket No. 15-1211 in matter of ACA Int’l v.
Fed. Commc’ns Comm’n. (ECF Nos. 9-3, 9-4).
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1 to control the disposition of the cases on its docket with economy of time and effort for
2 itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254 (1936).
3 A stay “is an exercise of judicial discretion, and the ‘party requesting a stay bears the
4 burden of showing that the circumstances justify an exercise of that discretion.’” Ind.
5 State Police Pension Trust v. Chrysler LLC, 556 U.S. 960, 961 (2009) (citing Nken v,
6 Holder, 556 U.S. 418, 433–34 (2009)).
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A trial court may, with propriety, find it is efficient for its own docket and
the fairest course for the parties to enter a stay of an action before it,
pending resolution of independent proceedings which bear upon the case.
This rule applies whether the separate proceedings are judicial,
administrative, or arbitral in character, and does not require that the issues
in such proceedings are necessarily controlling of the action before the
court.

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Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863–64 (9th Cir. 1979).

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In determining whether a stay is appropriate, a district court “must weigh

13 competing interests and maintain an even balance.” Landis, 299 U.S. at 254–55.
14 “Among these competing interests are the possible damage which may result from the
15 granting of a stay, the hardship or inequity which a party may suffer in being required
16 to go forward, and the orderly course of justice measured in terms of the simplifying or
17 complicating of issues, proof, and questions of law which could be expected to result
18 from a stay.” CMAX, Inc. v. Hall, 300 F.2d 265, 268 (9th Cir. 1962).
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The TCPA provides,

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It shall be unlawful for any person . . . to make any call (other than . . .with
the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice . . . to any
telephone number assigned to a paging service, cellular telephone service,
specialized mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for the call . . . .

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24 47 U.S.C. § 227(b)(1). ACA International is a consolidation of various petitions
25 challenging a 2015 FCC Order interpreting various provisions of the TCPA.3 The
26 issues before the D.C. Circuit involve (1) the type of equipment that constitutes an
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The D.C. Circuit Court of Appeals heard oral argument in ACA International
on October 16, 2016 but has not issued an opinion. (ECF No. 9-4 at 12).
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1 ATDS under the TCPA, (2) the definition of a “called party” under the TCPA, and (3)
2 the methods to revoke express consent.
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Based on the record and at this early stage of the proceedings, the Court cannot

4 conclude that the outcome of ACA International would have a significant impact on the
5 litigation in this Court. Regardless of the D.C. Circuit’s ultimate decision on the
6 definition of ATDS, the parties will need to conduct discovery to determine the
7 technology used by Defendant to place the alleged calls, among other issues. Further,
8 the Complaint alleges that Defendant placed prerecorded calls to Plaintiffs. (ECF No.
9 1 at ¶¶ 11,21). Defendant may be subject to liability under the TCPA for using an
10 ATDS or for placing prerecorded calls to Plaintiffs. See Vaccaro v. CVS Pharm., Inc.,
11 No. 13-CV-174-IEG RBB, 2013 WL 3776927, at *1 n.2 (S.D. Cal. July 16, 2013)
12 (“Because the provision is written in the disjunctive, plaintiffs can state a claim under
13 the TCPA by alleging the use of (1) an ‘artificial or prerecorded voice’ or (2) an
14 ATDS.”). Defendant has not sufficiently identified how the remaining issues before the
15 D.C. Circuit in ACA International would impact this case. See Ind. State Police
16 Pension Trust, 556 U.S. at 961 (holding that the party requesting a stay bears the burden
17 of establishing that it is justified). Further, Defendant’s contention that it will suffer
18 hardship if the action is not stayed due to unnecessary discovery and trial preparation
19 does not justify a stay in this case. See Lockyer v. Mirant Corp., 398 F.3d 1098, 1112
20 (9th Cir. 2005) (“[B]eing required to defend a suit, without more, does not constitute
21 a ‘clear case of hardship or inequity’ within the meaning of Landis.”). The motion to
22 stay is denied.
23 IV. MOTION TO DISMISS
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A. Legal Standards

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Rule 12(b)(1) of the Federal Rules of Civil Procedure permits a defendant to

26 move for dismissal on grounds that the court lacks jurisdiction over the subject matter.
27 Fed. R. Civ. P. 12(b)(1). The burden is on the plaintiff to establish that the court has
28 subject matter jurisdiction over an action. Assoc. of Med. Colls. v. United States, 217
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1 F.3d 770, 778–79 (9th Cir. 2000). “In a facial attack [on jurisdiction], the challenger
2 asserts that the allegations contained in the complaint are insufficient on their face to
3 invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th
4 Cir. 2004).
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Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state

6 a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Federal Rule of
7 Civil Procedure 8(a) provides that “[a] pleading that states a claim for relief must
8 contain . . . a short and plain statement of the claim showing that the pleader is entitled
9 to relief.” Fed. R. Civ. P. 8(a)(2). “A district court’s dismissal for failure to state a
10 claim under Federal Rule of Civil Procedure 12(b)(6) is proper if there is a ‘lack of a
11 cognizable legal theory or the absence of sufficient facts alleged under a cognizable
12 legal theory.’” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011)
13 (quoting Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). “[A]
14 plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires
15 more than labels and conclusions, and a formulaic recitation of the elements of a cause
16 of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting
17 Fed. R. Civ. P. 8(a)). “To survive a motion to dismiss, a complaint must contain
18 sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on
19 its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
20 570). “A claim has facial plausibility when the plaintiff pleads factual content that
21 allows the court to draw the reasonable inference that the defendant is liable for the
22 misconduct alleged.” Id. (citation omitted). “[T]he tenet that a court must accept as
23 true all of the allegations contained in a complaint is inapplicable to legal conclusions.
24 Threadbare recitals of the elements of a cause of action, supported by mere conclusory
25 statements, do not suffice.” Id. (citation omitted). “In sum, for a complaint to survive
26 a motion to dismiss, the non-conclusory factual content, and reasonable inferences from
27 that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.”
28 Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quotation omitted).
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B. Lack of Standing Pursuant Rule 12(b)(1)

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Defendant contends that the Complaint should be dismissed for lack of standing

3 pursuant to Rule 12(b)(1). (ECF No. 9-1 at 27). Defendant contends that the facts
4 alleged in the Complaint fail to establish an injury-in-fact because Plaintiffs allege only
5 “a bare procedural violation” that is “divorced from any concrete harm.” Id. at 28–30.
6 Defendant further contends that Plaintiffs failed to allege injury specific to each
7 individual call. Id. at 30.
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Plaintiffs contend that the Complaint alleges sufficient facts to establish Article

9 III injury-in-fact. Plaintiffs contend that the Complaint alleges economic loss, invasion
10 of privacy, annoyance, and wasted time as a result of the calls. (ECF No. 12 at 40).
11 Plaintiffs contend receipt of unwanted phone calls constitutes a concrete injury
12 sufficient to establish standing to bring a TCPA claim. Id. at 41. Plaintiffs contend that
13 the TCPA establishes a substantive right to be free from certain phone calls without
14 prior consent. Id. at 42.
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The jurisdiction of federal courts is constitutionally-limited to actual cases or

16 controversies. Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Raines v.
17 Byrd, 521 U.S. 811, 818 (1997)). The standing to sue doctrine is “rooted in the
18 traditional understanding of a case or controversy” and “limits the category of litigants
19 empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id.
20 The party invoking federal jurisdiction bears the burden of establishing Article III
21 standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Plaintiff must
22 establish (1) an injury in fact, (2) a causal connection between the injury and the
23 conduct complained of, and (3) a likelihood that the injury will be redressed by a
24 favorable decision. Id. at 560–61 (citations omitted). In the absence of Article III
25 standing, a court lacks subject matter jurisdiction to entertain the lawsuit. Steel Co. v.
26 Citizens for a Better Env’t, 523 U.S. 83, 109–10 (1998). “To establish injury in fact,
27 a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’
28 that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or
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1 hypothetical.’” Spokeo, 136 S. Ct. at 1548 (citing Lujan, 504 U.S. at 560). A
2 particularized injury “affects the plaintiff in a personal and individual way.” Id. A
3 “concrete” injury may be intangible but must actually exist. Id.
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In Spokeo Inc.v. Robins, the Supreme Court addressed the concrete injury-in-fact

5 requirement of Article III standing in the context of an alleged violation of the Federal
6 Credit Reporting Act. The Court stated,
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Congress’ role in identifying and elevating intangible harms does not
mean that a plaintiff automatically satisfies the injury-in-fact requirement
whenever a statute grants a person a statutory right and purports to
authorize that person to sue to vindicate that right. Article III standing
requires a concrete injury even in the context of a statutory violation.

10 Id. at 1549. The Court concluded that a “bare procedural violation, divorced from any
11 concrete harm” does not satisfy the injury-in-act requirement of Article III. Id.
12

The Ninth Circuit Court of Appeals recently addressed standing to bring a TCPA

13 cause of action in light of the Supreme Court decision in Spokeo. Van Patten v. Vertical
14 Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017). In Van Patten, the plaintiff brought
15 a TCPA cause of action arising out of alleged unauthorized telemarketing text messages
16 he received inviting him to return to his former gym. The plaintiff alleged injuries
17 including “the aggravation that necessarily accompanies wireless spam” and the fact
18 that consumers “pay their cell phone service providers for the receipt of such wireless
19 spam.” Id. at 1041. The Court of Appeals held that “a violation of the TCPA is a
20 concrete, de facto injury” and that the plaintiff’s allegations were therefore sufficient
21 to establish a concrete injury-in-fact. Id. at 1043. The Court of Appeals stated, “The
22 TCPA establishes the substantive right to be free from certain types of phone calls and
23 texts absent consumer consent.” Id.
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[T]he telemarketing text messages at issue here, absent consent, present
the precise harm and infringe the same privacy interests Congress sought
to protect in enacting the TCPA. Unsolicited telemarketing phone calls or
text messages, by their nature, invade the privacy and disturb the solitude
of their recipients. A plaintiff alleging a violation under the TCPA “need
not allege any additional harm beyond the one Congress has identified.”

28 Id. (quoting Spokeo, 136 S. Ct. at 1549).
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1

In this case, Plaintiffs allege a number of harms resulting from the unsolicited

2 phone calls from Defendant. Plaintiffs allege “an invasion of their legally protected
3 interest in privacy.” (ECF No.1 at ¶ 26). Plaintiffs allege the calls “personally
4 affected” Plaintiffs and caused frustration and distress. Id. ¶ 31. Plaintiffs allege “the
5 calls forced Plaintiffs . . . to live without the utility of their cellular phones by
6 occupying their cellular telephone with one or more unwanted calls, causing a nuisance
7 and lost time.” Id. ¶ 32. Plaintiffs allege that the “calls were placed to a telephone
8 number assigned to a cellular telephone service for which Plaintiffs incur a charge for
9 incoming calls.” Id. ¶ 29. The alleged unsolicited ATDS and prerecorded calls to
10 Plaintiffs’ cellular telephones “by their nature, invade the privacy and disturb the
11 solitude of” Plaintiffs. Van Patten, 847 F.3d at 1041. The Court concludes that these
12 factual allegations are sufficient to establish a concrete, particularized injury-in-fact
13 resulting from Defendant’s alleged calls. Defendant’s motion to dismiss for lack of
14 standing is denied.
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3. Failure to State a Claim Pursuant to Rule 12(b)(6)

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Defendant contends that the Complaint should be dismissed pursuant to Rule

17 12(b)(6) because Plaintiffs fail to allege sufficient facts to support an inference of use
18 of an ATDS. (ECF No. 9-1 at 25). Plaintiffs contend that the Complaint contains
19 sufficient facts to plausibly allege use of an ATDS. (ECF No. 12 at 35).
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The TCPA provides,
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It shall be unlawful for any person . . . to make any call (other than . . .
with the prior express consent of the called party) using any automatic
telephone dialing system or an artificial or prerecorded voice . . . to any
telephone number assigned to a paging service, cellular telephone service,
specialized mobile radio service, or other radio common carrier service,
or any service for which the called party is charged for the call . . . .

25 47 U.S.C. § 227(b)(1). To bring a claim under the TCPA, a plaintiff must show (1) that
26 defendant made the call (2) to any telephone number assigned to a cellular telephone
27 service and (3) the call was made using an ATDS or an artificial or prerecorded voice.
28 Id. The TCPA defines an ATDS as “equipment which has the capacity . . . to store or
produce telephone numbers to be called, using a random or sequential number generator
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1 [and] to dial such numbers.” 47 U.S.C. § 227(a)(1). Under the TCPA, an ATDS “need
2 not actually store, produce, or call randomly or sequentially generated telephone
3 numbers, it need only have the capacity to do it.” Satterfield v. Simon & Schuster, Inc.,
4 569 F.3d 946, 951 (9th Cir. 2009). “When evaluating the issue of whether equipment
5 is an ATDS, the statute’s clear language mandates that the focus must be on whether the
6 equipment has the capacity ‘to store or produce telephone numbers to be called, using
7 a random or sequential number generator.’” Id.
8

Courts in the Ninth Circuit have generally used one of two approaches to

9 determine whether a plaintiff has adequately alleged that the calls were made by an
10 ATDS to survive a Rule 12(b)(6) motion to dismiss. Maier v. J.C. Penney Corp., No.
11 13CV0163-IEG DHB, 2013 WL 3006415, at *3 (S.D. Cal. June 13, 2013). Under the
12 first approach, courts “allow for minimal allegations regarding use of an ATDS in
13 recognition of the fact that the type of equipment used by the defendant to place the
14 ‘call’ is within the sole possession of the defendant at the pleading stage, and will
15 therefore only come to light once discovery has been undertaken.” Id. Under the
16 second approach a “plaintiff must go beyond simply using statutory language alleging
17 the defendant’s use of an ATDS and must include factual allegations about the ‘call’
18 within the complaint allowing for a reasonable inference that an ATDS was used.” Id.
19

In this case, the Complaint alleges that Plaintiff Brown answered a phone call

20 from Defendant on December 23, 2016 and “an artificial or prerecorded voice message”
21 reminded him of an alleged debt to Defendant. (ECF No. 1 at ¶ 17). Similarly, the
22 Complaint alleges that Plaintiff Crooks answered a call on or about October 19, 2016,
23 in which a “prerecorded message played with no live human on the line.” Id ¶ 22.
24 Plaintiffs allege that Defendant made the “unwanted autodialed calls using a
25 prerecorded voice” to Plaintiffs’ cellular phones and provide the number used to make
26 the calls. Id. ¶¶ 19, 24. Further, Plaintiffs allege, “Upon information and belief, the
27 telephone equipment used by Defendant to place the calls at issue has the capacity to
28 dial telephone number[s] automatically from a stored list or database without human
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1 intervention, using a random or sequential number generator.” Id. ¶ 27. Construed in
2 the light most favorable to Plaintiffs, the Court concludes that the factual allegations of
3 the Complaint are sufficient to support a reasonable inference that Defendant used an
4 ATDS in making the alleged calls to Plaintiffs. See also Maier, 2013 WL 3006415, at
5 *3 (stating that “generic content of a message, a description of a robotic sounding voice,
6 or a lack of human response” are “indirect factual allegations supporting a reasonable
7 inference of use of an ATDS”). Defendant’s motion to dismiss for failure to state a
8 claim is denied.
9 VI. MOTION TO STRIKE CLASS ALLEGATIONS
10

Defendant moves the Court for an order striking class allegations pursuant to

11 Rule 12(f) because the Complaint demonstrates that the class action cannot be
12 maintained on the facts alleged. (ECF No. 9-1 at 16). Defendant contends that this case
13 is unsuitable for class treatment because the issue of consent will need to be analyzed
14 on an individual basis for each putative class member. Id. at 19. Defendant contends
15 that the proposed class is not precisely and adequately defined and therefore lacks
16 commonality and ascertainability. Id. at 20–23. Defendant contends that the allegations
17 of the Complaint are insufficient to establish that the purported class representatives
18 have claims typical of the purported class members. Id. at 24. Defendant contends that
19 the Complaint alleges an impermissible “fail-safe class” which is not ascertainable
20 because class members are not capable of identification prior to final judgment. Id. at
21 25.
22

Plaintiffs contend that the class allegations are not spurious and the Rule 23

23 requirements were properly pled. (ECF No. 12 at 28). Plaintiff contends that the class
24 definition is properly pled and that the complaint adequately alleges ascertainability.
25 Id. at 30. Plaintiffs contend that the Complaint does not allege an impermissible fail26 safe class. Id. at 31. Plaintiffs contend that this motion is premature and that Plaintiffs
27 are not required to satisfy Rule 23(a) and (b) prior to class certification. Id. at 33.
28 However, Plaintiffs further contend that the issues of commonality, typicality, and
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1 adequacy have been properly pled. Id. at 33–34.
2

A court “may strike from a pleading an insufficient defense or any redundant,

3 immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). “[T]he function
4 of a 12(f) motion to strike is to avoid the expenditure of time and money that must arise
5 from litigating spurious issues by dispensing with those issues prior to trial.” Fantasy,
6 Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993) (quotation omitted), rev’d on other
7 grounds by Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994). Courts disfavor motions to
8 strike class allegations because issues related to class allegations are generally more
9 appropriately resolved on a motion for class certification. See Lyons v. Coxcom, Inc.,
10 718 F. Supp. 2d 1232, 1235 –36 (S.D. Cal. 2009); Thorpe v. Abbott Labs., Inc., 534 F.
11 Supp. 2d 1120, 1125 (N.D. Cal. 2008). “Ultimately, whether to grant a motion to strike
12 lies within the sound discretion of the district court.” Cal. Dep’t. of Toxic Substances
13 Control v. Alco Pac., Inc., 217 F. Supp. 2d 1028, 1033 (C.D. Cal. 2002) (citing Fantasy,
14 Inc., 984 F.2d at 1528). “In exercising its discretion, the court views the pleadings in
15 the light most favorable to the non-moving party . . . and resolves any doubt as to the
16 relevance of the challenged allegations or sufficiency of a defense in defendant’s favor.”
17
18

Id.
The Court concludes that Defendant’s motion to strike class allegations is

19 premature at this stage of the proceedings. The class issues raised by Defendant are
20 more appropriately considered at the class certification proceedings. See Lyons, 718 F.
21 Supp. 2d at 1236 (noting that courts rarely grant motions to dismiss class allegations
22 before discovery has commenced); In re Wal-Mart Stores, Inc. Wage and Hour Litig.,
23 505 F. Supp. 2d 609, 615–16 (N.D. Cal. 2007) (“In the absence of any discovery or
24 specific arguments related to class certification, the Court is not prepared to rule on the
25 propriety of the class allegations and explicitly reserves such a ruling . . . . [P]laintiffs
26 should at least be given the opportunity to make the case for certification based on
27 appropriate discovery . . . .”). Defendant’s motion to strike class allegations is denied.
28 VII. CONCLUSION
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17cv246-WQH-MDD

1

IT IS HEREBY ORDERED that the motion to stay, motion to strike class

2 allegations, and motion to dismiss the Complaint filed by Defendant Rady Children’s
3 Hospital is DENIED. (ECF No. 9).
4 DATED: October 10, 2017
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WILLIAM Q. HAYES
United States District Judge

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17cv246-WQH-MDD