In Romero v. Department Stores National Bank, 2018 WL 1079728, at *1 (C.A.9 (Cal.), 2018), the Court of Appeals for the Ninth Circuit held in an unpublished decision that a TCPA plaintiff had Spokeo standing.
The district court erred in concluding that Romero lacked standing under Article III to bring a TCPA claim. The district court did not have the benefit of Van Patten v. Vertical Fitness Group, LLC, 847 F.3d 1037 (9th Cir. 2017), in which we held that “a violation of the TCPA is a concrete, de facto injury.” Id. at 1043. Romero has shown that this concrete harm is fairly traceable to the Banks’ challenged conduct. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). We reject the Banks’ attempt to inject a subject matter nexus requirement into the standing analysis. See Bd. of Nat. Res. of State of Wash. v. Brown, 992 F.2d 937, 945 (9th Cir. 1993) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 77–79 (1978)).
The Court of Appeals found that the District Court erred in finding that the Rosenthal Act violation — too many calls — could be cured merely by stopping the calls.
That California would require a creditor to return a debtor to the position she was in before the Rosenthal Act violation in order to “cure” that violation finds support in other contexts, where future compliance is an insufficient “cure” if the ill effects of a violation have not been or cannot be remedied. See Physicians Comm. for Responsible Med. v. Applebee’s Int’l, Inc., 168 Cal. Rptr. 3d 334, 346–47 (Ct. App. 2014) (discussing Cal. Health & Safety Code § 25249.7(d)(1)); Page v. MiraCosta Cmty. Coll. Dist., 102 Cal. Rptr. 3d 902, 929–30 (Ct. App. 2009) (discussing Cal. Gov’t Code § 54960.1(c)(2), (e)); People v. Franco, 228 Cal. Rptr. 527, 530 (Ct. App. 1986) (discussing Cal. Penal Code § 844). Because the Banks’ violation here is the type that has allegedly caused harm like interruption of Romero’s solitude, which cannot be cured merely by ceasing calls going forward, the district court erred in granting judgment for the Banks on this claim on the basis of the mere assertion of the defense.
California adopted this formulation of the intrusion upon seclusion tort from § 652B of the Restatement (Second) of Torts and courts draw heavily upon the Restatement’s description of the tort. See Taus v. Loftus, 151 P.3d 1185, 1212, 1217 (Cal. 2007). The Restatement recognizes that telephone calls demanding payment of a debt may give rise to liability when they are “repeated with such persistence and frequency as to amount to a course of hounding the plaintiff.” Restatement (Second) of Torts § 652B cmt. d (Am. Law. Inst. 1977). A creditor’s voluminous calls, even if unanswered, can also warrant civil penalties, suggesting that the California legislature and other reasonable people could consider such conduct highly offensive. See Cal. Civ. Code § 1788.11(d); cf. Komarova v. Nat’l Credit Acceptance, Inc., 95 Cal. Rptr. 3d 880, 896 (Ct. App. 2009) (citing Cal. Civ. Code § 1788.11(e)). When considering the evidence here in the light most favorable to Romero, a reasonable jury could conclude that the Banks’ nearly three hundred calls, with multiple calls per day, from numbers Romero was not always able to recognize, which continued after she communicated that she was unable to pay and requested that the calls stop, would be highly offensive to a reasonable person. This is so even though the calls were made by a creditor to a number initially provided by the debtor wherein the content of the calls was not harassing.