In Van Patten v. Vertical Fitness Group, LLC, 2014 WL 2116602 (S.D. Cal. 2014) here, Judge Burns granted summary judgment to the Defendant on Plaintiff’s TCPA and UCL claims.

For all of the above reasons, the Court finds that summary judgment is appropriate for Vertical Fitness on its affirmative defense that Van Patten consented to receiving the texts at issue when he provided his phone number upon joining the gym. The Court is bound by the 1992 FCC Order interpreting “prior express consent,” and the caselaw from this and other districts is unquestionably on the side of Vertical Fitness. See, e.g., Murphy, 2013 WL 6865772 at *6–8. Defendants’ motion for summary judgment on the TCPA claim is therefore GRANTED.

The District Court also found no cognizable UCL claim based on a TCPA violation.

Against this background, the Court finds no injury here that is cognizable under § 17200. The fact is that Van Patten wasn’t charged for the texts except in the formal sense that he pays for unlimited texting, and the Court can’t reconcile liability for that nominal amount with the holding of Kwikset. This shouldn’t come as a surprise to Van Patten. To support the argument that “by paying for an unlimited texting service [he] still suffers an economic injury as a result of Defendants’ conduct,” Van Patten cites three TCPA cases, two of which deal with the injury-in-fact requirement for Article III standing. Those cases are no help at all to his assertion that he has suffered a cognizable injury under California’s Unfair Competition Law. Defendants’ summary  motion as to Van Patten’s § 17200 claim is therefore GRANTED.

To summarize, the District Court stated:

To summarize, the Court finds, first, that because Van Patten willingly gave his phone number to Gold’s Gym when he became a member he consented to being texted by a re-branded gym about a membership offer. The binding FTC interpretations of the TCPA, as well as the caselaw, compel this conclusion. Second, the Court finds that Vertical Fitness doesn’t conduct business in California in a manner that exposes it to liability under § 17538.41. Vertical Fitness operates several gyms in two states in the Midwest. The Court finds, finally, that Van Patten’s § 17200 claim fails, either because his previous two claims fail or because he hasn’t suffered an adequate “injury in fact” under § 17204. Van Patten’s motion for partial summary judgment is DENIED, and the Defendants’ motions for summary judgment are GRANTED.