In Perez v. Rash Curtis & Assocs., No. 16-cv-03396-YGR, 2019 U.S. Dist. LEXIS 58639, at *13-15 (N.D. Cal. Apr. 4, 2019), Judge Rogers addressed how the “good faith” defense interplays with the TCPA.
With respect to plaintiff Perez, defendant may not assert that it acted in good faith in calling Perez and therefore is not liable under the TCPA to him for the calls. However, [*14] Rash Curtis may argue that because it had a good faith belief that it possessed prior express consent to call the phone number belonging to plaintiff Perez, defendant is not liable for treble damages under the statute. The Court has previously ruled that Rash Curtis did not have prior express consent to call plaintiff Perez. (SJ Order at 11-12; see also Reconsideration Order.) Therefore, defendant may not assert a good faith defense as to whether Rash Curtis violated the TCPA by calling plaintiff Perez. However, whether Rash Curtis had a good faith belief that it possessed prior express consent to call the phone number belonging to plaintiff Perez bears on plaintiff’s claim for treble damages, which requires that a defendant engaged in knowing and/or willful violations of the TCPA. See Compl. ¶ 60; see also 47 U.S.C. § 227(b)(3)(C). With respect to the class, defendant may present evidence that it had prior express consent to call class members. As, the TCPA specifically exempts a caller from liability if the caller has received “prior express consent” from the recipient to be called. 47 U.S.C. § 227(b)(1)(A). The Ninth Circuit has not addressed whether other general good faith defenses may be raised in a TCPA claim. See Springer v. Fair Isaac Corp., No. 14-cv-02238-TLN-AC, 2015 U.S. Dist. LEXIS 154765, 2015 WL 7188234, *3 (E.D. Cal. Nov. 16, 2015). Accordingly, courts within the Ninth Circuit have allowed for TCPA defendants to raise prior express consent defenses, which is a form of good faith defense. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009); Reardon v. Uber Technologies, Inc., 115 F. Supp. 3d 1090, 2015 WL 4451209, at *6 (N.D. Cal. 2015); Chyba v. First Financial Asset Management, Inc., No. 12-cv-1721-RTB (WVG), 2013 U.S. Dist. LEXIS 165276, 2014 WL 1744136, at *10 (S.D. Cal. Apr. 30, 2014). Moreover, for the same reasons regarding treble damages stated above, even if defendant does not have evidence of prior express consent to call class members, Rash Curtis may present evidence that it had a good faith belief that it possessed prior express consent to a phone number belonging to a class member and is therefore not liable for treble damages under the TCPA.