In Mogadam v. Fast Eviction Service, 2015 WL 1534450 (C.D. Cal. 2015), Judge Selna found use of an ATDS and a class action under the TCPA adequately pleaded.
No single fact in particular must necessarily be present or absent to meet the sufficiency requirement for pleading the use of an ATDS in a TCPA claim; courts have considered the nature of the message, the length of the sending number, the number of messages, and the relationship between the parties. See e.g., In re Jiffy Lube Int’l, Inc., Text Spam Litigation, 847 F.Supp.2d 1253, 1260 (S.D.Cal.2012) (presence of “short code” sending number was a factor indicating ATDS use despite preexisting personal relationship between parties); Kramer, 759 F.Supp.2d at 1172 (N.D.Cal.2010) (impersonal nature of messages, number of messages, “short code” sending number, and lack of relationship with plaintiff all supported inference of ATDS use in TCPA claim); Robbins, 2013 WL 2252646, at *3 (ATDS use inferred based on receipt of numerous text messages promoting Coca–Cola products); Vaccaro v. CVS Pharmacy, Inc., 2013 WL 3776927, at *2 (S.D.Cal. July 16, 2013) (ATDS use inferred based on number of calls, an artificial or prerecorded voice, and the commercial nature of calls); Maier v. J.C. Penney Corp., 2013 WL 3006415, at *4 (S.D. Cal. June 13, 2013) (ATDS pleading sufficient based on single unsolicited and impersonal text message sent via “short code”); cf. McKenna v. WhisperText, 2014 WL 49005629, at *3 (N.D.Cal. Sept. 29, 2014) (ATDS pleading insufficient when alleged ATDS use was supported only by use of “long code” telephone number and single text message invitation from an “anonymous” friend). Here, the single message in question was sent from a short-code sending number. Its commercial, generic, and impersonal in nature. Based on the context, the Court can plausibly conclude that FES used an ATDS to send the text message in question.
Judge Selna found that the pleadings stage was not the proper time to address the class allegations
FES also moves to dismiss Mogadam’s class allegations, arguing that his allegations of class size and commonality are merely vague conclusions. (Mot. Dismiss 12.) FES also argues that paragraph 33 of the FAC is a formulaic recitation of the commonality element of class certification. (Id.) Class allegations are generally not tested at the pleadings stage and instead are usually tested after one party has filed a motion for class certification. See, e.g., Thorpe v. Abbott Labs., Inc., 534 F.Supp.2d 1120, 1125 (N.D.Cal.2008); In re Wal–Mart Stores, Inc. Wage & Hour Litig., 505 F.Supp.2d 609, 615 (N.D.Cal.2007) (“The granting of motions to dismiss class allegations before discovery has commenced is rare.”) This Court is not persuaded that this putative class action is a rare one warranting dismissal prior to discovery, as it is not evident from the face of the pleadings that Mogadam’s class claims cannot be maintained. Cf. Sanders v. Apple, Inc., 672 F.Supp.2d 978, 990–91 (N.D.Cal.2011) (striking class allegations from complaint where court was convinced “that under no set of circumstances could the claim … succeed”). While Mogadam’s allegation of class size is imprecise, it is unlikely that Mogadam could allege a more precise number without the benefit of discovery. Mogadam’s allegation that questions of law and fact predominate over individual issues is not merely a formulaic recitation of the standard; rather, it is supported with specific allegations of the issues that predominate in this specific case. (See FAC ¶ 33(a)-(d).) Accordingly, dismissal of class allegations is not warranted at this stage.