The record reflects that defendants used three dialers during the class period, namely (i) DAKCS/VIC, (ii) Global Connect, and (iii) TCN. Plaintiffs offer the testimony of Rash Curtis executives who state DAKCS/VIC and TCN are predictive dialers. (Dkt. No. 139-2, Declaration of Yeremy Krivoshey (“Krivoshey Decl.”), Ex. 1, Deposition of Daniel Correa (“Correa Dep.”) at 23:10-13 (DAKCS/VIC dialer), 30:9-21 (TCN dialer); Ex. 2, Deposition of Nick Keith (“Keith Dep.”) at 26:22-27:11 (DAKCS/VIC dialer).) With regard to Global Connect, plaintiffs proffer that Global Connect offers “predictive” functionality and enables defendant to make ten simultaneous calls per agent to reach “thousands of contacts within minutes.” (Dkt. No. 46-4, Declaration of Randall A. Snyder ¶ 39, Ex. C; Krivoshey Decl., Ex. 9.) Further, defendant’s advertising materials highlight that Rash Curtis uses “predictive dialers” to increase productivity. (Krivoshey Decl. Ex. 9 at 8; Ex. 12 at 18.) Accordingly, defendant’s Dialers “fall squarely within the FCC’s definition of ‘automatic telephone dialing system.’ ” Meyer, 707 F.3d at 1043.
Here, plaintiffs’ complaint alleges that defendant called them four (Perez), 33 (McMillion), and 45 times (Adekoya), respectively, and that such calls were made with “the intent to annoy and harass.” (Complaint ¶¶ 3, 5, 7, 25, 30, 36.) The Court finds that plaintiffs’ allegations are insufficient to create a triable factual issue at this juncture. First, the majority of cases cited above involved a greater number of calls than plaintiffs allege here. See Carmen, 782 F. Supp. 2d at 1232 (149 calls); Lynch, 2011 WL 247588 at *2 (86 calls); Jones, 2011 WL 2050185 at * 2-3 (179 calls); Waite, 2010 WL 5209350, at *3, 6 (132 calls). Second, plaintiffs cite “no evidence in the record from which a reasonable trier of fact could infer that [d]efendant acted with the requisite intent to annoy or harass in making the telephone calls at issue.”10Saltzman, 2009 WL 3190359, at *7 (emphasis supplied). Although plaintiffs offer evidence that they requested Rash Curtis to stop calling them, plaintiffs did “not send [Rash Curtis] a cease and desist letter,11 dispute the amount owed, or provide evidence that [Rash Curtis] has acted in a manner that would be actionable as harassment, oppression or abuse.” Id. Further, plaintiffs present no evidence that defendant “called [plaintiffs] immediately after [plaintiffs] hung up…[or] called at odd hours.” Arteaga v. Asset Acceptance, LLC, 733 F. Supp. 2d 1218, 1239 (E.D. Cal. 2010). In light of the legislative history of the Section 1692d and district court decisions interpreting the same, the Court GRANTS defendant’s motion for partial summary judgment as to plaintiffs’ claims under 15 U.S.C. § 1692d.
The Rosenthal Act prohibits debt collectors from “(d) Causing a telephone to ring repeatedly or continuously to annoy the person called; or (e) Communicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances.” Cal. Civ. Code § 1788.11(d), (e). Under Section 1788.11, a “communication” requires “actual contact between the debt collector and the debtor.” Krapf v. Nationwide Credit Inc., 2010 WL 2025323, at *4 (C.D. Cal. 2010). The Court finds that Perez fails to make a sufficient showing show that defendant’s “actual contact” was “with such frequency as to be unreasonable and to constitute [ ] harassment to the debtor under the circumstances.” Id.; Cal. Civ. Code § 1788.11(e). As noted Perez alleges only four calls. Therefore, the Court GRANTS defendant’s motion for partial summary judgment as to the Section 1788.11(e) claims of plaintiff Perez. By contrast, plaintiff McMillion has proffered evidence sufficient to establish a triable with regard to her claim under Section 1788.11(e). Specifically, McMillion testified that she spoke with Rash Curtis as many as thirty times and that she obtained professional medical help to deal with the stress which defendant’s automated calls caused her. (McMillion Dep. at 29:9-27:22, 72:7-74:19, 81:23- 82:20.) Defendant counters that the testimony of McMillion is not credible because it is inconsistent with Rash Curtis’ call records. Defendant does not persuade, as the discrepancy between McMillion’s testimony and defendant’s call records reflects a disputed issue of material fact. Further, whether thirty instances of actual contact are “unreasonable and [ ] constitute an harassment to the debtor under the circumstances” presents a triable issue. Similarly, Adekoya proffers sufficient evidence to establish a triable issue as to her claim under Section 1788.11(e). Specifically, the record reflects that defendant called Adekoya twice per day on at least a dozen occasions, and three times on May 27, 2015. (Dkt. No. 151, Fisher Decl., Ex. 22.) Further, plaintiffs proffer evidence that defendant called her at work on March 16, 2016, after Adekoya specifically asked defendant not to do so, and sent a fax to her work also after Adekoya specifically asked defendant not to do so. (Id., Ex. 31 at 3:07, 7:05; Ex. 36 at 1:08, 1:30.)
Finally, the Court found that medical debts were “consumer credit contracts” under the Rosenthal Act, even though, well, nothing was purchased on credit.
Defendant’s final point that plaintiffs’ Rosenthal Act claims does not persuade because plaintiffs’ “medical debt” does not constitute a “consumer credit transaction” under the Rosenthal Act also fails. “Credit” is defined as the “time that a seller gives the buyer to make the payment that is due.” Black’s Law Dictionary (10th ed. 2004.) “Consumer credit” is defined as credit “extended to an individual to facilitate the purchase of consumer goods and services.” Id. Here, plaintiffs obtained medical services from various healthcare providers without immediate payment. Stated another way, the medical providers afforded plaintiffs “time…to make the payment that is due” and therefore extended “credit.” Finally, the medical services at issue were used for personal and family purposes, namely maintaining the health of plaintiffs and their families. Giving the plain meaning to the statutory terms, the transaction here falls within the purview of “consumer credit transaction.”