In Porter v. Dollar Financial Group, Inc., 2014 WL 4368892 (E.D.Cal. 2014), Judge Shubb found the allegations of a TCPA claim to be outside of an Arbitration Agreement because the complaint alleged that the calls placed did not relate to the subject of the contract that contained the arbitration clause.
On December 29, 2011, plaintiff signed a Deferred Deposit Loan Note in which defendants agreed to provide plaintiff with a loan of $120.00 and plaintiff agreed to make a payment of $141.18 on January 7, 2012. (Peterson Decl. Ex. A (“Agreement”) at 1 (Docket No. 9).) The Agreement contained an arbitration provision, which requires arbitration of, among other things, “all federal or state law claims, disputes or controversies arising from or relating directly or indirectly to any transactions with Lender or any injury to either party as a result of such transactions,” “all claims based upon a violation of any state or federal constitution, statute, or regulation,” and “all claims asserted by [plaintiff] individually against Lender and/or any of Lender’s employees, agents, officers, members, governors, directors, managers, shareholders or affiliated entities … including claims for money damages and/or equitable or injunctive relief.” ( Id. at 2.) alleges that in 2012 she began receiving calls from defendants on her cell phone, in which defendants asked for someone by another name. (Not. of Removal Ex. A (“Compl.”) ¶ 35 (Docket No. 1).) According to plaintiff, she immediately informed defendants that they were calling a number that did not belong to the individual with whom they wished to speak. ( Id. ¶ 36.) Defendants then allegedly told plaintiff they would remove her from their call list and that the calls would cease. ( Id. ¶ 37.) The calls did not cease. ( Id. ¶¶ 38–39.) Plaintiff alleges that she has received over two hundred calls on her cell phone from defendants, even after she repeatedly told defendants that they were calling the wrong person and installed a call blocking application on her phone. ( Id. ¶¶ 40–41.)
The District Court denied the Petition to Arbitrate because the calls were outside the scope of the arbitration agreement.
Plaintiff appears to concede that a valid agreement to arbitrate exists as to the December 2011 loan. Plaintiff nonetheless argues that her claims are not subject to the arbitration agreement because they arise from calls to collect an unrelated third party’s debt with defendants. The issue thus is whether the agreement encompasses claims relating to efforts to collect on a loan that was not plaintiff’s. The Ninth Circuit applies a narrow construction to arbitration clauses that only address disputes “arising under” the contract or agreement itself, but applies a broad construction to arbitration provisions that by their terms apply to disputes “relating to” the agreement. Cape Flattery Ltd. v. Titan Mar., LLC, 647 F.3d 914, 921–22 (9th Cir.2011). Because the present provision states that it includes disputes “arising from or relating directly or indirectly to any transactions” with the lender, (Agreement at 2), the broad construction applies, see Cape Flattery, 647 F.3d at 922 (noting that provisions using both “arising under” and “relating to” language receive broad construction). Applying the broad construction, plaintiff’s factual allegations must “ ‘touch matters’ covered by the contract containing the arbitration clause” in order for arbitration to be proper. Simula, Inc. v. Autoliv, Inc., 175 F.3d 716, 721 (9th Cir.1999) (quoting Mitsubishi Motors Corp. v. Soler Chrysler–Plymouth, Inc., 473 U.S. 614, 624 n. 13, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Applying this construction, courts have routinely held that efforts to collect on unpaid contracts are “related to” such contracts for the purposes of determining whether claims arising out of the collection efforts are subject to arbitration. See, e.g., Brown v. DIRECTV, LLC, Civ. No. 12–8382 DMG EX, 2013 WL 3273811, at *6 (C.D. Cal. June 26, 2013) (listing cases). These cases are distinguishable, however, as they all involve efforts to collect on contracts that contained the arbitration provision in question. Here, in contrast, plaintiff claims that defendant’s improper calls stem from a different loan taken out by a third party, unrelated to plaintiff’s loan or the arbitration agreement therein. Plaintiff’s claims more closely resemble those in In re Jiffy Lube International Inc. Text Spam Litigation, 847 F.Supp.2d 1253 (S.D.Cal.2012). In Jiffy Lube, one plaintiff had signed an arbitration agreement with the defendant as part of a contract for an oil change. Id. at 1262–63. Although the agreement subjected to arbitration “any and all disputes, controversies or claims” between plaintiff and defendant, the court determined that the agreement did not apply to the plaintiff’s TCPA claims alleging he and other class members later received unauthorized text messages from defendant as part of a marketing campaign. Id. at 1263. Even if the original contract was the means by which defendant acquired plaintiff’s information, and thus could be considered the “but for” cause of the alleged TCPA violations, the court held that the original contract was not “related to” the claims. Id. Likewise, plaintiff here alleges that defendant’s calls stem from a different transaction than the one for which she agreed to arbitration; even if that previous agreement was the means by which defendant acquired her contact information, that “alone is not necessarily enough to establish that the claim arises out of or relates to the product.” Id. Defendant responds that the 2011 Agreement “undoubtedly” encompasses plaintiff’s claims and that “the indisputable evidence” is that the calls plaintiff complains about related to her 2011 loan. (Def.’s Mem. at 6:17–28 (Docket No. 8).) Although defendant has produced call logs purportedly relating to plaintiff’s 2011 loan, (Peterson Decl. Ex. 2), these documents do not necessarily contradict plaintiff’s allegations that the calls to which she objects were intended to reach someone else, and thus did not relate to plaintiff’s loan. Moreover, the court must assume the truth of the allegations in plaintiff’s complaint for the purposes of ruling on defendant’s motion to compel arbitration. Brown v. Dillard’s, Inc., 430 F.3d 1004, 1006 (9th Cir.2005). If facts are developed during the course of this litigation which contradict or disprove plaintiff’s allegations regarding the subject matter of the calls upon which plaintiff bases her complaint, defendants are free at that time to renew their motion to compel arbitration. In sum, because plaintiff alleges she received calls that were not related to the contract containing the arbitration provision, the arbitration agreement does not “encompass[ ] the dispute at issue.” Kilgore, 718 F.3d at 1058. Accordingly, the court must deny defendant’s motion to compel arbitration at this time.