In Ewing v. Freedom Forever Ltd. Liab. Co., No. 20-cv-880-JLS (AHG), 2021 U.S. Dist. LEXIS 53561 (S.D. Cal. Mar. 22, 2021), Judge Sammartino dismissed part of a TCPA claim, but let the balance proceed.   Judge Sammartino held that some of the calls were barred by the statute of limitations, but still remained relevant.

Defendants argue that “most of Plaintiff’s claims of allegedly violating calls are barred by the applicable statute of limitation.” Mot. at 13. Plaintiff’s TCPA claims are subject to a four-year statute of limitations. See 28 U.S.C. § 1658(a) (enacting four-year statute of limitations as to “a civil action arising under an Act of Congress”); Giovanniello v. ALM Media, LLC, 726 F.3d 106, 115 (2d Cir. 2013) (holding that the generally applicable four-year statute of limitations in 28 U.S.C. § 1658(a) governs TCPA actions); Sawyer v. Atlas Heating and Sheet Metal Works, Inc., 642 F.3d 560, 561 (7th Cir. 2011) (same); Lofton v. Verizon Wireless (VAW) LLC, 308 F.R.D. 276, 281 (N.D. Cal. June 18, 2015) (same). Because Plaintiff filed this action on May 11, 2020, see ECF No. 1, any TCPA claims based on alleged calls from before May 11, 2016 are barred by the applicable statute of limitations. Defendants identify seven calls that may not be time-barred, which took place on: (1) September 10, 2019; (2) October 9, 2019; (3) May 1, 2020; (4) May 3, 2020; (5) May 6, 2020; (6) May 6, 2020; and (7) May 9, 2020. Mot. at 13-14 (citing FAC ¶ 10). However, Plaintiff also alleges Defendants placed seventeen calls in 2015 and early 2016. FAC ¶ 68; see also Mot. at 13. Plaintiff does not dispute that some of the calls alleged in the FAC fall outside the statute of limitations, instead asserting that the “prior calls bolster the triple damage award that is within the sole discretion of the District Judge after a finding of liability.” Opp’n at 6 (citing 47 U.S.C. § 227(b)(3)(C)). Accordingly, the Court GRANTS Defendants’ Motion and DISMISSES Plaintiff’s TCPA claims to the extent they are based on calls made prior to May 11, 2016; however, Plaintiff may plead these calls as evidence of willfulness.

Judge Sammartino found that the TCPA claim was adequately pleaded.

Plaintiff alleges that calls he received on May 1, 3, and 6, 2020 used a prerecorded voice message and that “[t]he robot required Plaintiff to push ‘1’ to get to a live human,” FAC ¶ 63, an allegation that is independently sufficient to support the second element of Plaintiff’s TCPA claims as to those calls, see Iniguez v. CBE Grp., 969 F. Supp. 2d 1241, 1247 (E.D. Cal. 2013). Such an allegation is “based on Plaintiff’s own experience when she answered Defendant’s phone calls, and it is therefore not vague or conclusory.” Id. However, it is not clear on the face of the FAC that the May 3 and 6, 2020 calls by Mr. Bouchy, see FAC ¶¶ 64, 65; or the September 10 and October 9, 2019 calls by Mr. Albright, see id. ¶¶ 66, 67; were made using an artificial prerecorded voice. Rather, Plaintiff simply alleges that these individual Defendants “called Plaintiff,” id. ¶¶ 64-67, and, with regards to Mr. Bouchy, that he “directly called Plaintiff,” id. ¶ 98, suggesting an artificial prerecorded voice was not used. Thus, to the extent Plaintiff attempts to state section 227(b) claims based on the use of an artificial prerecorded voice as to these calls, Plaintiff fails to do so adequately. As to Plaintiff’s allegations concerning the use of an ATDS, “[w]hile the specific requirements for an allegation of the use of an ATDS to survive a Rule 12(b)(6) motion to dismiss have not been conclusively established by controlling authority, persuasive authority has generally followed one of two approaches.” Maier v. J.C. Penney Corp., No. 13CV0163-IEG DHB, 2013 U.S. Dist. LEXIS 84246, 2013 WL 3006415, at *3 (S.D. Cal. June 13, 2013). “The first approach has been to allow for minimal allegations regarding use of an ATDS in recognition of the fact that the type of equipment used by the defendant to place the ‘call’ is within the sole possession of the defendant at the pleading stage, and will therefore only come to light once discovery has been undertaken.” Id. (citing In re Jiffy Lube Int’l., Inc., Text Spam Litig., 847 F .Supp. 2d 1253, 1260 (S.D. Cal. 2012); Blair v. CBE Grp. Inc., No. 13-CV-134-MMA(WVG), 2013 U.S. Dist. LEXIS 68715, 2013 WL 2029155, at *4 (S.D. Cal. May 13, 2013)). “The second approach has been that a TCPA plaintiff must go beyond simply using statutory language alleging the defendant’s use of an ATDS and must include factual allegations about the ‘call’ within the complaint allowing for a reasonable inference that an ATDS was used.” Id. (citing Kramer v. Autobytel, Inc., 759 F. Supp 2d 1165, 1171 (N.D. Cal. 2010); Johansen v. Vivant, Inc., 12 C 7159, 2012 U.S. Dist. LEXIS 178558, 2012 WL 6590551, at *3 (N.D. Ill. Dec. 18, 2012)). Within this District, courts seem to apply the second approach predominantly. See, e.g., Meza v. Sirius XM Radio, Inc., No. 17-CV-2252-AJB-JMA, 2018 U.S. Dist. LEXIS 164601, 2018 WL 4599718, at *3 (S.D. Cal. Sept. 25, 2018); Vaccaro v. CVS Pharm., Inc., No. 13-CV-174-IEG RBB, 2013 U.S. Dist. LEXIS 99991, 2013 WL 3776927, at *2 (S.D. Cal. July 16, 2013); Ewing v. 8 Figure Dream Lifestyle, LLC, No. 18-CV-1063-AJB-AGS, 2019 U.S. Dist. LEXIS 54574, 2019 WL 1429589, at *7 (S.D. Cal. Mar. 29, 2019). Accordingly, this Court will also adhere to the second approach. Plaintiff claims that “Defendant Freedom Forever, LLC used a ‘Vicidial’ ATDS system to robodial Plaintiff on Plaintiff’s cell phone.” FAC ¶ 71. He claims the May 1, 3, and 6, 2020 calls were made using “an ATDS to initial [sic] the call,” id. ¶ 63, and that “[t]here was also a very distinct bubble popping sound at the beginning of the call that indicates an ATDS was used,” id. Thus, Plaintiff sufficiently alleges both the use of an ATDS and further indirect evidence that support the plausibility of Plaintiff’s allegations with regard to the May 2020 calls. Plaintiff claims Mr. Bouchy made his calls “through an ATDS device,” but provides no similar indirect allegations to raise the inference that an ATDS was used. Id. ¶ 78. And Plaintiff makes no allegations as to whether Mr. Albright used an ATDS. Accordingly, to the extent Plaintiff attempts to state section 227(b) claims against Messrs. Albright and Bouchy based on their alleged use of an ATDS, Plaintiff has failed to do so. Finally, while Defendants claim that the bare assertion that the alleged TCPA violations were willful or knowing is inadequate to state a claim, see Mot. at 17, numerous courts in the Ninth Circuit and this District have held otherwise, see, e.g., Keifer v. HOSOPO Corp., No. 318CV1353CABKSC, 2018 U.S. Dist. LEXIS 183468, 2018 WL 5295011, at *5 (S.D. Cal. Oct. 25, 2018) (finding sufficient for purposes of motion to dismiss allegation that “‘the foregoing acts and omissions of Defendant constitute numerous and multiple knowing and/or willful violations of the TCPA'” (citation omitted)); Gulden v. Liberty Home Guard LLC, No. CV-20-02465-PHX-JZB, 2021 U.S. Dist. LEXIS 33833, 2021 WL 689912, at *6-7 (D. Ariz. Feb. 23, 2021) (rejecting same argument and finding similar allegations sufficient to survive motion to dismiss). The Court finds Plaintiff’s allegations that Defendants’ alleged violations were knowing and/or willful adequate at the pleading stage.

Judge Sammartino allowed the call-recording claim to proceed.

“CIPA is California’s anti-wiretapping and anti-eavesdropping statute and is designed ‘to protect the right of privacy.'” 8 Figure Dream Lifestyle, LLC, 2019 U.S. Dist. LEXIS 54574, 2019 WL 1429589, at *8 (quoting Cal. Penal Code § 630). “[CIPA] provides for a civil action for damages based on violations of section 632 which prohibits recording a ‘confidential communication’ ‘intentionally and without the consent of all of the parties.'” Id. (citing Cal. Penal Code §§ 630, 637.2(a)). “To state a claim for violation of section 632, the three elements that a plaintiff must plead are ‘(1) an electronic recording of (or eavesdropping on); (2) a “confidential” communication; [where] (3) all parties did not consent.'” Id. (alteration in original) (citing Weiner v. ARS Nat’l Servs., Inc., 887 F. Supp. 2d 1029, 1032 (S.D. Cal. 2012); Stoba v., LLC, No. 13CV2925, 2014 U.S. Dist. LEXIS 98058, 2014 WL 3573404, at *3 (S.D. Cal. July 18, 2014)). “Section 632(c) defines a ‘confidential communication’ as including ‘any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto.'” Id. (citing Cal. Penal Code § 632(c)). “Excluded from protection are communications in ‘circumstance[s] in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.'” Id. (citing Roberts v. Wyndham Int’l, Inc., No. 12CV5083, 2012 U.S. Dist. LEXIS 170719, 2012 WL 6001459, at *5 (N.D. Cal. Nov. 30, 2012); Cal. Penal Code § 632(c)). Alternatively, “[i]n interpreting CIPA, the California Supreme Court has held that ‘a conversation is confidential under section 632 if a party to that conversation has an objectively reasonable expectation that the conversation is not being overheard or recorded.'” Ewing v. Flora, No. 14CV2925 AJB (NLS), 2015 U.S. Dist. LEXIS 194169, 2015 WL 12564225, at *4 (S.D. Cal. Mar. 25, 2015) (citing Flanagan v. Flanagan, 27 Cal. 4th 766, 777, 117 Cal. Rptr. 2d 574, 41 P.3d 575 (2002); Mirkarimi v. Nevada Prop. 1 LLC, No. 12CV2160, 2013 U.S. Dist. LEXIS 99362, 2013 WL 3761530, at *2 (S.D. Cal. July 15, 2013)). As the Court noted supra at note 1, when deciding a motion to dismiss, the Court must construe the allegations in the operative pleading in Plaintiff’s favor. Thus, the Court can give no credence to Defendants’ arguments premised on facts or evidence not appearing in the pleading. Plaintiff alleges Mr. Bouchy once “confessed, at the very end of the call, that the call was being recorded,” but “he did not disclose the fact of recording at any time prior to that,” FAC ¶ 78, and Plaintiff elsewhere alleges that Defendants recorded all of their calls to Plaintiff secretly, without his consent, and without disclosing the fact of the recording near the beginning of the calls, id. ¶¶ 51-55, 145-48. Moreover, Plaintiff alleges he “ha[d] a reasonable expectation of privacy during each call.” Id. ¶ 149. Given that Plaintiff alleges that the calls included questions about his credit score, whether he owns his home, whether he has ever filed for bankruptcy, and the amount he pays each month for electricity bills, see id. ¶ 28, drawing all inferences in Plaintiff’s favor, the Court can infer that Plaintiff had an objectively reasonable expectation that the call was confidential and not being recorded. See Flora, 2015 U.S. Dist. LEXIS 194169, 2015 WL 12564225, at *4. Accordingly, the Court finds that Plaintiff has adequately alleged the elements of his CIPA claim and DENIES Defendants’ Motion as to this claim.