In Haysbert v. Navient Solutions, Inc., 2016 WL 890297, at *8-9 (C.D.Cal., 2016), Judge Gutierrez denied a TCPA Plaintiff’s motion for summary judgment, saying that the Plaintiff consented to receive calls to a cell number provided post-origination and during origination.
Plaintiff’s interpretation, moreover, would lead to the odd outcome that a defendant would be protected by a phone number voluntary given during the origination of the debt, but at risk for a similarly voluntary submission of a phone number later in the process (such as an update if a debtor changed phone numbers). . . The Court thus believes that the proper understanding of the statute is that “it ensures that a debtor who gives his number outside the context of the debt has not given his consent to be called regarding the debt,” but that “[a] debtor consents to calls about ‘an existing debt’ when he gives his number ‘in connection with’ that debt–including after his initial signing of the loan.” Hill, 799 F.3d at 552 (citation omitted). Under this reading, Defendant clearly satisfies its burden of showing prior express consent. See 2008 FCC Order at 564–65; Hudson, 2014 WL 2892290, at *3. The undisputed evidence shows that Plaintiff signed and submitted multiple forms to Defendant in connection with his loans stating that he agreed to be called at his provided number or any future provided number, and that at a later point he provided the –7142 number that was used to make the calls while attempting to view his student loans.
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Plaintiff next argues that prior express consent does not exist because the –7142 number was not provided voluntarily. P’s MSJ Mot. 10–12. Specifically, Plaintiff argues that “the undisputed evidence demonstrates that [Defendant’s] webpage’s terms created an unenforceable contract of adhesion.” Id. 11. Under California law, the unconscionability doctrine “ensures that contracts, particularly contracts of adhesion, do not impose terms that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided.” . . Plaintiff argues that the requirement that he enter his phone number into Defendant’s webpage to access his online account information was both procedurally and substantively unconscionable. P’s MSJ Mot. 11–12. He argues that the website’s terms were procedurally unconscionable because “it was given to Plaintiff on a ‘take it or leave it’ basis by forcing Plaintiff to submit his number and ‘consent’ to be autodialed if Plaintiff wished to view his online account information. Plaintiff had no chance but to provide his number to view his online statements and had no bargaining power to change the result.” P’s MSJ Opp. 10 (citations omitted). He argues that it was substantively unconscionable because it “force[d] consumers to waive their privacy rights under Federal law in the form of ‘consenting’ to be autodialed and contacted with prerecorded voice messages.” Id. 10–11. The Court has little trouble rejecting this argument. The website’s terms are short, straightforward, and unambiguous, see Website Screenshot, and it does not appear that Plaintiff was coerced, rushed, bullied, or tricked into submitting his phone number. The contract was therefore at worst minimally procedurally unconscionable because it was given on a take-it-or-leave-it basis, but in such a situation the contract is only unenforceable if the degree of substantive unconscionability is high. See Dotson v. Amgen, Inc., 181 Cal.App. 4th 975, 981–82 (2010). The Court finds that the degree of substantive unconscionability does not rise to anywhere near this mark. Plaintiff argues that Defendant’s website forces debtors to provide their phone numbers and waive their privacy rights to not receive automated phone calls in exchange for the ability to view their online debt. P’s MSJ Opp. 10–11. But Plaintiff ignores the critical fact that the website allowed him to revoke consent as well, which he in fact did on April 14, 2015. D’s MSJ Opp. 5; D’s SGD ¶ 21 (stating that it is undisputed that Plaintiff changed his calling preferences on Defendant’s website on this date). The Court finds that the terms of the contract were not unduly harsh, oppressive, or unfair because Plaintiff could easily undue them. The terms of the webpage are therefore enforceable, and count as prior express consent for Plaintiff to receive automated phone calls from Defendant.
As to Plaintiff’s Rosenthal Act claim, the Court found a triable issue of fact as to whether the call volume was excessive.
Here, it is undisputed that Defendant called Plaintiff ninety-nine times over a one-and-a-half year period, and Plaintiff presents evidence that he frequently received between two and five calls a day. See D’s SGD ¶¶ 1, 37; Haysbert Decl. ¶ 10; Call Log. Plaintiff also presents evidence that these calls caused interruptions in his day and that he answered at least some of these calls. See Haysbert Decl. ¶¶ 9–17. The Court thus believes that, at a minimum, there is a triable issue of fact as to whether Defendant’s conduct was harassing. See, e.g., Bennett, 2013 WL 6320851, at *3 (denying summary judgment where the defendant called the plaintiff 113 times over an eight-month period); Rucker v. Nationwide Credit, Inc., No. 2:09–CV–2420–GEB–EFB, 2011 WL 25300, at *2 (E.D.Cal. Jan. 5, 2011) (denying summary judgment for eighty calls over a one-year period); but see Saltzman v. I.C. Sys., Inc., No. 09–10096, 2009 WL 3190359, at *6–7 (E.D.Mich. Sept. 30, 2009) (granting summary judgment for the defendant where defendant called plaintiff between twenty and seventy times over a one-month period, with between two and ten of those calls actually reaching the plaintiff). The Court therefore denies Defendant’s motion for summary judgment on this issue.