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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 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, 15 Defendant. 16 HAYES, Judge: 17 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). 26 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 -1- 17cv246-WQH-MDD 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. 14 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. 24 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 26 1 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”). -2- 17cv246-WQH-MDD 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. 20 “Plaintiffs bring this action on behalf of themselves and all other similarly 21 situated (the ‘Class’).” Id. ¶ 35. Plaintiffs define the class as, 22 23 24 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 27 Defendant requests a stay of this entire matter pending the decision in ACA Int’l 28 -3- 17cv246-WQH-MDD 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. 13 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. 23 “The power to stay proceedings is incidental to the power inherent in every court 24 2 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). -4- 17cv246-WQH-MDD 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)). 7 10 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. 11 Leyva v. Certified Grocers of Cal., Ltd., 593 F.2d 857, 863–64 (9th Cir. 1979). 8 9 12 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). 19 The TCPA provides, 20 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 . . . . 21 22 23 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 27 28 3 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). -5- 17cv246-WQH-MDD 1 ATDS under the TCPA, (2) the definition of a “called party” under the TCPA, and (3) 2 the methods to revoke express consent. 3 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 24 A. Legal Standards 25 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 -6- 17cv246-WQH-MDD 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). 5 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). -7- 17cv246-WQH-MDD 1 B. Lack of Standing Pursuant Rule 12(b)(1) 2 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. 8 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. 15 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 -8- 17cv246-WQH-MDD 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. 4 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, 7 8 9 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. 24 25 26 27 [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). -9- 17cv246-WQH-MDD 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. 15 3. Failure to State a Claim Pursuant to Rule 12(b)(6) 16 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). 20 The TCPA provides, 21 22 23 24 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 - 10 - 17cv246-WQH-MDD 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 - 11 - 17cv246-WQH-MDD 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 - 12 - 17cv246-WQH-MDD 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 - 13 - 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 5 6 7 WILLIAM Q. HAYES United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 - 17cv246-WQH-MDD

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