Chinitz v. Intero Real Estate Services

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 RONALD CHINITZ, Case No. 18-cv-05623-BLF

8 Plaintiff, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY 10 INTERO REAL ESTATE SERVICES, JUDGMENT; AND GRANTING IN PART AND DENYING IN PART 11 Defendant. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 12 [Re: ECF 157 and 159] 13

14 This is a class action brought by Plaintiff Ronald Chinitz1 against Defendant Intero Real 15 Estate Services for allegedly making unlawful calls to residential telephone lines in violation of 16 the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227 et seq., and California’s 17 Unfair Competition Law (“UCL”), Cal. Bus. & Prof. Code § 17200, et seq. See Compl., ECF 1. 18 Before the Court are two motions for summary judgment, one from Plaintiff, see Pl.’s Mot., ECF 19 157, and one from Defendant, see Def.’s Mot., ECF 159. For the reasons stated below, Plaintiff’s 20 motion is GRANTED IN PART and DENIED IN PART, and Defendant’s motion is GRANTED 21 IN PART and DENIED IN PART. 22 I. BACKGROUND 23 Defendant is a real state services company that facilitates the sale of real estate throughout 24 the San Francisco Bay Area. Decl. of Sabita J. Soneji (“Soneji Decl.”), Ex. A, About Intero, at 1, 25 ECF 157-1; Decl. of John Thompson (“Thompson Decl.”), ¶ 2, ECF 159-2. Under California law, 26

27 1 Plaintiff’s counsel has a pending motion to replace Mr. Chinitz as class representative. See Mot. 1 real estate salespersons and brokers must be licensed, Cal. Bus. & Prof. Code § 10130, and 2 Defendant is “duly licensed as a real estate Broker by the State of California.” Soneji Decl., Ex. G, 3 Independent Contractor Agreement, at IN 0041 ¶ 1, ECF 157-1. California law regulates the 4 operation of real estate brokerages and their affiliated sales associates—for example, any person in 5 California wanting to “engage in the business of, act in the capacity of, advertise as, or assume to 6 act as a real estate broker or a real estate salesperson” must obtain and maintain a real estate 7 salesperson’s or broker’s license. Cal. Bus. & Prof. Code §§ 10130, 10137. California law requires 8 that sales associates’ real estate licenses be registered or affiliated with only one responsible 9 broker at a time. See, e.g., Cal. Bus. & Prof. Code § 10137, Cal. Code Regs. tit. 10, § 2752(5), (6). 10 Salespersons and broker associates working on behalf of a licensed broker must enter into a 11 written employment or retention agreement, and the parties must inform the California 12 Department of Real Estate (“DRE”) within five days of entering into any such agreement. Cal. 13 Code Regs. tit. 10, §§ 2726, 2752; see also Cal. Bus. & Prof. Code § 10161.8. Intero works with 14 sales associates who are licensed through the DRE. Thompson Decl. ¶ 4. Intero assigns all its 15 corporate sales associates (those not working for a franchise office)2 the title of “Agent” or “Sales 16 Associate” and publicly advertises them as such, including on its website. See, e.g., Ex. A, About 17 Intero, at 1; see also Ex. B Excerpt of Agent List, ECF 157-1; Ex Q, Dep. of Thomas Tognoli 18 (“Tognoli Dep.”) 61:1-15, ECF 157-1. 19 Pursuant to their employment agreements with Defendant, all sales associates agree that 20 they will know and comply with all applicable federal, state, and local laws and regulations that 21 apply to their sales practices. Thompson Decl. ¶ 4. This includes compliance with the TCPA and 22 all requirements relating to the Federal Trade Commission (“FTC”) Do Not Call registry. Id.; 23 Thompson Decl., Ex. A, 2017 Intero Policy Manual, at IN 0019, ECF 159-2. California law 24 requires that brokers like Defendant exercise reasonable supervision over their “performance of 25 acts for which a real estate license is required” and holds brokers like Defendant responsible for its 26 affiliated sales associates’ real estate activities. Cal. Bus. Prof. Code § 10159.2. Additionally, 27 1 “consistent with existing statutory and common law, a responsible broker is liable for the actions 2 or negligence of a salesperson or broker associate retained by the responsible broker to perform 3 acts for which a license is required under this division.” Cal. Bus. & Prof. Code § 10010.5. 4 Plaintiff has presented evidence that his landline telephone number (831-420-1899) 5 received six calls from or on behalf of Intero within a 12-month period. Verkhovskaya Rep. ¶¶ 79, 6 110, ECF No. 72. Plaintiff has presented evidence that the calls were from a sales associate 7 associated with Defendant asking if he was interested in relisting his house for sale. Soneji Decl., 8 Ex. Z, Decl. of Ronald Chinitz (“Chinitz Decl.”) ¶ 7, ECF 157-1; Soneji Decl., Ex. X, Dep. of 9 Ronald Chinitz (“Pl.’s Chinitz Dep.”) 169:5–171:1, ECF 157-1. The parties dispute whether 10 Plaintiff’s telephone numbers, including his landline are “personal, non-business residential 11 numbers.” Ex. X, Pl.’s Chinitz Dep. 120:2–11; Decl. of Tomio Narita (“Narita Decl.”), Ex. C, 12 Dep. of Ronald Chinitz (“Def.’s Chinitz Dep.”) 30:13-31:13, 31:24-32:13, 35:22-36:6, 36:17- 13 37:25, ECF 159-4. Plaintiff has testified that he found the calls from Intero’s sales agents 14 “intrusive, obnoxious, harassing and unwanted and to invade my privacy,” and he testified that he 15 repeatedly asked the callers not to call him back, but they kept calling. Ex. Z, Chinitz Decl. ¶¶ 11– 16 12. 17 Plaintiff filed this complaint on September 13, 2018. See Compl. Defendant filed its 18 answer on November 7, 2018. See Answer, ECF 9. On July 22, 2020, this Court granted Plaintiff’s 19 motion for class certification, certifying two classes: A National Do Not Call (“DNC”) Class for 20 injunctive relief under Rule 23(b)(2) and for damages under Rule 23(b)(3), and an Internal DNC 21 Class under Rule 23(b)(2) for injunctive relief. See Class Cert. Order, ECF 126. On September 23, 22 2020, the Court denied Defendant’s motion for reconsideration. See Order Den. Recons., ECF 23 138. Defendant’s Rule 23(f) petition to the Ninth Circuit for review of this Court’s class 24 certification order was denied on October 19, 2020. See Order of USCA, ECF 143. 25 II. LEGAL STANDARD 26 “A party is entitled to summary judgment if the ‘movant shows that there is no genuine 27 dispute as to any material fact and the movant is entitled to judgment as a matter of law.’” City of 1 56(a)). A fact is “material” if it “might affect the outcome of the suit under the governing law,” 2 and a dispute as to a material fact is “genuine” if there is sufficient evidence for a reasonable trier 3 of fact to decide in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 4 248 (1986). 5 The party moving for summary judgment bears the initial burden of informing the Court of 6 the basis for the motion and identifying portions of the pleadings, depositions, answers to 7 interrogatories, admissions, or affidavits that demonstrate the absence of a triable issue of material 8 fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To meet its burden, “the moving party 9 must either produce evidence negating an essential element of the nonmoving party’s claim or 10 defense or show that the nonmoving party does not have enough evidence of an essential element 11 to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co. v. Fritz Cos., 12 Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). In judging evidence at the summary judgment stage, the 13 Court “does not assess credibility or weigh the evidence, but simply determines whether there is a 14 genuine factual issue for trial.” House v. Bell, 547 U.S. 518, 559-60 (2006). Where the moving 15 party will have the burden of proof on an issue at trial, it must affirmatively demonstrate that no 16 reasonable trier of fact could find other than for the moving party. Celotex, 477 U.S. at 325; 17 Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007). 18 If the moving party meets its initial burden, the burden shifts to the nonmoving party to 19 produce evidence supporting its claims or defenses. Nissan Fire, 210 F.3d at 1103. If the 20 nonmoving party does not produce evidence to show a genuine issue of material fact, the moving 21 party is entitled to summary judgment. Celotex, 477 U.S. at 323. “The court must view the 22 evidence in the light most favorable to the nonmovant and draw all reasonable inferences in the 23 nonmovant’s favor.” City of Pomona, 750 F.3d at 1049. “[T]he ‘mere existence of a scintilla of 24 evidence in support of the [nonmovant’s] position’” is insufficient to defeat a motion for summary 25 judgment. First Pac. Networks, Inc. v. Atl. Mut. Ins. Co., 891 F. Supp. 510, 513–14 (N.D. Cal. 26 1995) (quoting Liberty Lobby, 477 U.S. at 252). “‘Where the record taken as a whole could not 27 lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.’” 1 Corp., 475 U.S. 574, 587 (1986)). 2 III. DISCUSSION 3 The Court first addresses the parties’ evidentiary objections and requests for judicial notice 4 before considering Plaintiff’s motion, followed by the one filed by Defendant. 5 A. Evidentiary Objections 6 Both parties have objected to the opposing side’s inclusion of new evidence with the reply 7 brief. See Pl.’s Obj, ECF 170; Def.’s Obj., ECF 169. “New evidence submitted as part of a reply is 8 improper.” Morris v. Guetta, No. LA CV12-00684 JAK, 2013 WL 440127, at *8 (C.D. Cal. Feb. 9 4, 2013). Accordingly, both parties’ objections are SUSTAINED, and the Court will not consider 10 the declarations and exhibits attached to either reply brief. 11 Defendant further objects to the following evidence offered by Plaintiff in support of his 12 motion for summary judgment: paragraphs 9-24 of the Soneji Declaration, on the basis that the 13 testimony is hearsay, lacks foundation, and lacks personal knowledge; Exhibits A, B, C, D, F, H, 14 and L to the Soneji Declaration, on the basis that they are not properly authenticated; and Video 15 Exhibits 1 through 14, on the basis that they are not properly authenticated and lack foundation. 16 See Def’s Opp’n 22-25, ECF 161. 17 Defendant additionally objects to the following evidence offered by Plaintiff in his 18 opposition to Defendant’s motion for summary judgment: paragraphs 8-13 and 21 of the 19 Declaration of Sabita J. Soneji in support of Plaintiff’s opposition, on the basis that they are 20 hearsay; Exhibits A, B, C, D, G, H, I, K, and W to the declaration, on the basis that they are not 21 properly authenticated; and Exhibits E and M, on the basis that they are hearsay. Def’s Reply 14- 22 15, ECF 165. 23 “To survive summary judgment, a party does not necessarily have to produce evidence in a 24 form that would be admissible at trial, as long as the party satisfies the requirements of Federal 25 Rules of Civil Procedure 56.” Fraser v. Goodale, 342 F.3d 1032, 1036–37 (9th Cir. 2003) 26 (quoting Block v. City of Los Angeles, 253 F.3d 410, 418–19 (9th Cir. 2001)). At this stage, the 27 focus is on the admissibility of the contents of the evidence, not its form. Fraser, 342 F.3d at 1 2016) (“[A]t summary judgment a district court may consider hearsay evidence submitted in an 2 inadmissible form, so long as the underlying evidence could be provided in an admissible form at 3 trial, such as by live testimony.”) “Accordingly, district courts in this circuit have routinely 4 overruled authentication and hearsay challenges at the summary stage where the evidence could be 5 presented in an admissible form at trial, following Fraser.” Hodges v. Hertz Corp., 351 F. Supp. 6 3d 1227, 1232 (N.D. Cal. 2018) (citations omitted). Accordingly, the Court OVERRULES 7 Defendant’s evidentiary objections on the basis that the evidence could be presented in an 8 admissible form at trial. 9 B. Request for Judicial Notice 10 Plaintiff requests the Court take judicial notice of several documents. See Req. for Judicial 11 Notice, ECF 158. First, Plaintiff requests judicial notice of several documents attached to the 12 Soneji Declaration from the California DRE: Exhibit H, Defendant’s corporate license, list of 13 trade names and branches, and a list of Defendant’s broker-associates as of October 28, 2019; 14 Exhibit L, a list of sales associates affiliated with Defendant as of January 24, 2020; and Exhibit 15 N, real estate license of Dominic Elmo Nicoli. See Req. for Judicial Notice. Plaintiff also asks the 16 Court to judicially notice Exhibit D, content from the DRE website. See id. Finally, Plaintiff asks 17 the Court to take judicial notice of documents from Defendant’s publicly available website: 18 Exhibit A, About Intero; Exhibit B, Excerpt of Agent List; and Exhibit C; Website Guide. See id. 19 Defendant objects to these requests on the basis that it violates this Court’s Standing Order, as this 20 request contains additional arguments that exceeds the Court’s 25-page limit for a summary 21 judgment motion. Def.’s Opp’n 25. The Court does not consider Plaintiff’s arguments offered in 22 this request for judicial notice but does note that Plaintiff properly incorporated his arguments into 23 his reply brief, which complies with the Court’s Standing Order and page limits. See Pl.’s Reply 24 14-15, ECF 164. 25 Courts may take judicial notice of matters either that are “generally known within the trial 26 court’s territorial jurisdiction” or that “can be accurately and readily determined from sources 27 whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). “Specifically, a court 1 information contained in news articles, and (3) publicly accessible websites whose accuracy and 2 authenticity is not subject to dispute.” In re Facebook, Inc. Sec. Litig., 405 F. Supp. 3d 809, 827 3 (N.D. Cal. 2019) (internal citations and quotation marks omitted). Accordingly, the Court takes 4 judicial notice of Exhibit H, L, and N since DRE materials are matters of public record. The Court 5 takes judicial notice of Exhibit D since the DRE website is publicly accessible, and its accuracy is 6 not in dispute. The Court takes judicial notice of Exhibits A, B, and C from Defendant’s website 7 for the same reason. 8 C. Plaintiff’s Motion 9 Plaintiff seeks summary judgment on two discrete issues. First, Plaintiff seeks summary 10 judgment on the issue of whether Defendant is vicariously liable for any calls deemed to be in 11 violation of the TCPA that were made by or on behalf of sales associates and agents affiliated with 12 its corporate-owned real estate offices. Pl.’s Mot. 10-17. The issue of liability—whether the sales 13 associates were affiliated with Defendant at the time the calls were made and whether the calls in 14 question actually violated the TCPA—is reserved for the jury. Id. 1. Second, Plaintiff seeks 15 summary judgment in favor of the Internal DNC Class and a finding that Defendant violated 47 16 U.S.C. § 227(c)(2) and 47 C.F.R. § 64.1200(d), which prohibit entities from engaging in 17 telemarking unless they adopt a do not call policy that meets every enumerated minimum standard 18 set forth in the statute. Pl’s Mot. 18-24. The issue of the scope of the injunctive relief would be 19 reserved for trial. Id. 1. Defendant opposes summary judgment on both discrete issues. See Def.’s 20 Opp’n. The Court considers each issue in turn. 21 i. Vicarious Liability 22 Plaintiff argues that Defendant is vicariously liable for calls made by its corporate sales 23 associates and agents. Mot. 10-17. Plaintiff has two different theories for finding vicarious 24 liability: one based on apparent authority and another based on California laws that Plaintiff 25 argues are incorporated into federal common law by the Restatement. Id. At the March 25, 2021 26 hearing for these motions, Plaintiff’s counsel admitted there was no case law to support this latter 27 theory. 1 was not plead in the complaint, Def.’s Opp’n 4-5, but the Court disagrees. The complaint pleads a 2 TCPA violation on the basis of calls “made by or on behalf of Defendant,” Compl. ¶ 76, which is 3 sufficient to give Defendant notice of the theory. And Defendant demonstrated at the beginning of 4 the case that it understood Plaintiff was asserting a vicarious liability theory: in the parties’ Rule 5 26(f) case management statement, filed on February 14, 2019, Defendant wrote, “The principal 6 legal issue in this case is whether Intero can be held vicariously liable for phone calls allegedly 7 made by salespersons (independent contractors) that allegedly violated the TCPA.” Joint Case 8 Mgmt. Statement 5, ECF 21. Defendant’s argument now that this is a new theory is disingenuous 9 at best. 10 Defendant further argues that Plaintiff lacks evidence demonstrating Defendant’s liability 11 for these alleged calls, Def.’s Opp’n 5-12, but this mischaracterizes Plaintiff’s motion. Plaintiff is 12 only seeking summary judgment on the narrow issue of whether Defendant “is vicariously liable 13 for any calls deemed to be in violation of the TCPA that were made by or on behalf of agents 14 affiliated with its corporate-owned real estate offices.” Mot. 1. The issues of whether the agents 15 who placed the calls where agents of Defendant at the times the calls were made and whether the 16 calls in question violated the TCPA—the issues Defendant argues in its opposition brief—are not 17 subject to this motion and are explicitly reserved for trial by Plaintiff. Mot. 1, Pl.’s Reply 3-4 n.3. 18 The Court finds that Defendant is vicariously liable for calls made by its corporate sales 19 associates and agents based on apparent authority. The Ninth Circuit has adopted the Federal 20 Communications Commission (FCC) construction of the TCPA that holds “[c]alls placed by an 21 agent of the telemarketer are treated as if the telemarketer itself placed the call,” and actions under 22 the TCPA “incorporate federal common law agency principles of vicarious liability.” Kristensen v. 23 Credit Payment Servs. Inc., 879 F.3d 1010, 1014 (9th Cir. 2018) (alteration in original) (internal 24 quotations and citations omitted). The Ninth Circuit “relies on the Restatement (Third) of Agency 25 as the federal common law of agency” for these actions. Id. 26 “Apparent authority holds a principal accountable for the results of third-party beliefs 27 about an actor’s authority to act as an agent when the belief is reasonable and is traceable to a 1 “The definition thus applies to actors who appear to be agents but are not, as well as to agents who 2 act beyond the scope of their actual authority.” Id. § 2.03 cmt. a. Apparent authority ensures, “[a] 3 principal may not choose to act through agents whom it has clothed with the trappings of authority 4 and then determine at a later time whether the consequences of their acts offer an advantage.” Id. § 5 2.03 cmt. c. 6 Plaintiff presents several pieces of evidence to prove a manifestation on Defendant’s part 7 that would lead a reasonable person to believe the sales associates were acting under its authority. 8 For example, Defendant listed the names of its agents on its website. Ex. B, Excerpt of Agent List; 9 Soneji Decl., Ex. C, Website Guide, ECF 157-1. Defendant also submitted the names of its 10 associates to the California DRE. Soneji Decl., Ex. H, DRE list of associates, ECF 157-1. As a 11 matter of law, these manifestations, which are traceable to Defendant, the principal, are sufficient 12 to create apparent authority. See Restatement § 2.03 cmt. c. 13 Additionally, the principal’s manifestations that give rise to apparent authority may consist 14 of “directions to the agent to tell something to the third person, or the granting of permission to the 15 agent to perform acts ... under circumstances which create in him a reputation of authority. ...” 16 Mavrix Photographs, LLC v. Livejournal, Inc., 873 F.3d 1045, 1055 (9th Cir. 2017) (alteration in 17 original) (quoting Hawaiian Paradise Park Corp. v. Friendly Broad. Co., 414 F.2d 750, 756 (9th 18 Cir. 1969)). Here, Plaintiff has presented evidence that Defendant gave its sales associates 19 permission to solicit real estate clients on Defendant’s behalf and using its name. Soneji Decl., Ex. 20 G, Independent Contractor Agreement, at IN 0042 ¶ 4; Ex. J, 2018 Intero Policy Manual, at IN 21 0120, 0127, ECF 157-1. Defendant’s training materials instructed its associates to identify 22 themselves as being associated with Defendant when making sales calls. Ex. 10, Passion Punch 23 Training Clips 2:11-14, ECF 179-10 (“But when I call, I’m delivering a lot of energy and 24 enthusiasm on the phone. Hey, it’s Albert Garibaldi, Intero Real Estate, how are you?”); see also 25 Soneji Decl., Ex. Q, Tognoli Dep. 154:3-155:7 (encouraging sales associates and brokers to 26 promote their association with Defendant). Accordingly, the Court finds that these manifestations 27 made by Defendant established that its sales associates had apparent authority to act on its behalf. 1 would believe that any of the sales associates who allegedly made the calls had authority to do so 2 on behalf of Intero. Def.’s Opp’n 7-8. The Court disagrees. The Court also disagrees with 3 Defendant that this is a subjective standard, see Def.’s Opp’n 7-8, as apparent authority uses an 4 objective, “reasonable person” standard. United States v. Chavez, 673 F. App’x 754, 756 (9th Cir. 5 2016); see also Edwards v. Ford Motor Co., 603 F. App’x 538, 541 (finding “reasonable person” 6 standard is an objective one), Kristensen v. Credit Payment Servs., 12 F. Supp. 3d 1292, 1306 (D. 7 Nev. 2014) (Because the inquiry is limited to how a reasonable person would perceive the text 8 message at issue, there is no need to determine how individual class members perceived the text 9 message or the successive web pages they may have visited. Agency can be resolved on a class- 10 wide basis.”). 11 The Court also disagrees with Defendant’s argument that Plaintiff has no evidence of any 12 manifestation by Defendant that would lead any class member to reasonably believe that these 13 sales associates had the authority to make these calls on behalf of Defendant. See Def.’s Opp’n 9- 14 12. As stated above, the Court finds Plaintiff has offered several pieces of evidence that would 15 lead a reasonable person to believe the sales associate had apparent authority. See, e.g., Ex. 10, 16 Passion Punch Training Clips 2:12-13 (“Hey, it’s Albert Garibaldi, Intero Real Estate, how are 17 you?”). The amount of evidence presented by Plaintiff distinguishes this case from McDermet v. 18 DirecTV, LLC, cited by Defendants. No. CV 19-11322-FDS, 2021 WL 217336, at *10 (D. Mass. 19 Jan. 21, 2021). That court found that “[t]he fact that the authorized retailers could use defendants’ 20 trademarks is not sufficient to establish apparent authority,” id., but Plaintiff here has presented 21 evidence that goes beyond just using Defendant’s name. See, e.g., Ex. B, Excerpt of Agent List; 22 Ex. C, Website Guide; Ex. G, Independent Contractor Agreement. 23 Defendant’s arguments in opposition to Plaintiff’s apparent authority theory are all based 24 on an alleged lack of evidence, arguments the Court has found contrary to the record before it. 25 Defendant does not present any evidence of its own to show a genuine issue of material fact. 26 Therefore, the Court GRANTS summary judgment for Plaintiff and finds that, as a matter of law, 27 Defendant is vicariously liable under apparent authority for calls made by its corporate agents and 1 Defendant at the time the calls were made and whether the calls violated the TCPA will be 2 decided at trial. 3 ii. Defendant’s Do Not Call Policy 4 Plaintiff also seeks summary judgment on the issue of whether Defendant is liable for 5 violations of the TCPA’s requirements that it maintain an internal do-not call-list that meets every 6 enumerated minimum standard set forth in 47 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(d). Pl.’s 7 Mot. 18-24. 8 “The TCPA affords a private right of action to any ‘person who has received more than 9 one telephone call within any 12-month period by or on behalf of the same entity in violation of’ 10 relevant regulations.” Izor v. Abacus Data Sys., Inc., No. 19-CV-01057-HSG, 2019 WL 3555110, 11 at *1 (N.D. Cal. Aug. 5, 2019) (citing 47 U.S.C. § 227(c)(5)). One such regulation is 47 C.F.R. § 12 64.1200(d), which states, “No person or entity shall initiate any call for telemarketing purposes to 13 a residential telephone subscriber unless such person or entity has instituted procedures for 14 maintaining a list of persons who request not to receive telemarketing calls made by or on behalf 15 of that person or entity.” 47 C.F.R. § 64.1200(d). The regulation then enumerates six minimum 16 standards that the instituted procedures must meet. Id. They include maintaining a written policy 17 for maintaining a do-not-call list, id. § 64.1200(d)(1), and training of personnel engaged in 18 telemarketing: “Personnel engaged in any aspect of telemarketing must be informed and trained in 19 the existence and use of the do-not-call list.” Id. § 64.1200(d)(2). 20 “[I]mplementation of adequate procedures is an affirmative defense.” Izor, 2019 WL 21 3555110, at *2 (citing 47 U.S.C. § 227(c)(5) (“It shall be an affirmative defense in any action 22 brought under this paragraph that the defendant has established and implemented, with due care, 23 reasonable practices and procedures to effectively prevent telephone solicitations in violation of 24 the regulations prescribed under this subsection.”)). 25 Plaintiff argues there is no evidence that Defendant had a written policy for maintaining a 26 do-not-call list—a separate requirement from maintaining the list itself—as required by 47 C.F.R. 27 § 64.1200(d)(1). Pl.’s Mot. 20-22. Plaintiff also argues that the evidence shows that Defendant did 1 Decl., Ex. O, Interrogatories Response at 3, ECF 157-1 (“Defendant states that to the best of its 2 knowledge, its legal department has not conducted any branch training sessions relating to the “Do 3 Not Call” list, as referenced on page IN 0019 of the Broker/Agency Policy Manual”); Soneji 4 Decl., Ex. P, Dep. of John Thompson 133:21-134:4, ECF 157-1 (stating no training was held 5 outside of the legal department, either). 6 Defendant argues that these calls were not made for telemarketing purposes and that 7 Plaintiff has presented no evidence that these calls were made to residential telephone subscribers, 8 which are both required to trigger a violation of 47 C.F.R. § 64.1200(d). Def.’s Opp’n 18-20. The 9 regulation defines telemarketing as the “initiation of a telephone call or message for the purpose of 10 encouraging the purchase or rental of, or investment in, property, goods, or services, which is 11 transmitted to any person.” 47 C.F.R. § 64.1200(f)(13). The Ninth Circuit has approached 12 deciding what constitutes telemarketing “with a measure of common sense.” Chesbro v. Best Buy 13 Stores, L.P., 705 F.3d 913, 918 (9th Cir. 2012). Plaintiff cites an FCC decision clarifying the 14 TCPA rules and regulations that states, “a telephone solicitation would include calls by real estate 15 agents to property owners for the purpose of offering their services to the owner, whether the 16 property listing has lapsed or not.” Rules and Regulations Implementing the Telephone Consumer 17 Protection Act of 1991, 70 Fed. Reg. 19330-01, 19331 (April 13, 2005). Plaintiff also has 18 presented evidence from Defendant’s training videos demonstrate these calls were telemarketing 19 calls. See, e.g., Ex. 2, Jason Traina Training Clips 2:6-3:7, ECF 179; Ex. 13, Dominic Nicoli 20 Phone Prospecting Training 3 Clips 2:15-3:4, ECF 179. Defendant argues that under Chesbro, a 21 court cannot decide as a matter of law that a call is a telemarketing call without any evidence as to 22 what was said on the call. Def.’s Opp’n 19 (citing Chesbro, 705 F.3d at 916 (analyzing undisputed 23 script)). 24 As to the issue of whether these calls were received by residential telephone subscribers, 25 Defendant cites Plaintiff’s deposition as evidence that his number is not a residential number 26 covered by the TCPA since he is a landlord and uses both of his phone numbers to run his 27 business. Def.’s Chinitz Dep. 19:17-20:20, 30:13-31:13, 31:24-32:13, 35:22-36:6, 36:17-37:25. 1 renters of the single rental property he maintains on his residential lot. Pl.’s Reply 10-11; Ex. X, 2 Pl.’s Chinitz Dep. 35:2-24. 3 The Court finds disputed issues of fact prevent it from ruling Defendant is liable for 4 violations of the TCPA’s requirements that it maintain an internal do-not call-list under 47 U.S.C. 5 § 227(c)(5) and 47 C.F.R. § 64.1200(d) because of the threshold issues of whether telemarketing 6 calls were made to residential telephone subscribers to trigger liability under this statute and 7 regulation. Accordingly, summary judgment is DENIED. 8 iii. Conclusion 9 The Court GRANTS summary judgment for Plaintiff and finds that Defendant is 10 vicariously liable under apparent authority for calls made by its corporate agents and sales 11 associates. The Court DENIES summary judgment on the issue of whether Defendant is liable for 12 violations of the TCPA’s requirements that it maintain a proper internal do-not call-list under 47 13 U.S.C. § 227(c)(5) and 47 C.F.R. § 64.1200(d). 14 D. Defendant’s Motion 15 Defendant filed its own summary judgment motion, see Def.’s Mot. The Court DENIES 16 the motion as to the claims brought under the TCPA and GRANTS the motion as to Plaintiff’s 17 claim under California’s Unfair Competition Law, Cal. Bus. & Prof. Code § 17200, et seq. 18 i. TCPA Claims 19 Defendant’s arguments regarding Plaintiff’s claims under the TCPA overlap substantially 20 with the issues the Court already addressed when evaluating Plaintiff’s motion. Defendant argues 21 that it is not liable for the calls at issue in this case, Def.’s Mot. 8-16, an argument which the Court 22 has already decided in finding that Defendant is vicariously liable for the calls made by its 23 corporate agents and sales associates. The Court finds that Plaintiff has presented evidence that the 24 calls at issue in this case were initiated by Defendant’s sales associates, which is sufficient to 25 defeat summary judgment. Decl. of Sabita J. Soneji (“Soneji Opp’n Decl.”) ¶¶ 8-14, 21. 26 Next, Defendant argues that there is no evidence that the calls at issue were telephone 27 solicitations or that they were made for telemarketing purposes. Def.’s Mot. 12-13. As the Court 1 telemarketing purposes. Ex. 2, Jason Traina Training Clips 2:6-3:7; Ex. 13, Dominic Nicoli Phone 2 Prospecting Training 3 Clips 2:15-3:4; Ex. Z, Dep. of Chinitz in Opp’n 169:5-171:1, ECF 160-1. 3 Defendant argues another point covered in Plaintiff’s motion when it claims there is no 4 evidence that any calls were placed to residential telephone subscribers or received by residential 5 telephone subscribers who registered their numbers with the National Do-Not-Call Registry 6 (“NDNCR”). Def’s Mot. 17-21. As mentioned above, the Court finds a disputed issue of fact as to 7 whether Plaintiff’s number a residential telephone line under the TCPA. Plaintiff also presents 8 deposition testimony from one of Defendant’s sales associates that establishes that he calls people 9 who are selling their home on their own, without a realtor. Soneji Opp’n Decl., Ex. Q, Dep. of 10 Dominic Nicoli 94:3-22, 98:17-101:3, ECF 160-1. The Court repeats the common-sense 11 assumption that residential real estate is sold by individuals, not businesses. Additionally, 12 Plaintiff’s expert report, which the Court accepted as evidence over the objections of Defendant at 13 both class certification, Class Cert. Order 10-12, and the reconsideration of that decision, Order 14 Den. Recons. 2-5, creates a triable issue of fact as to whether the calls were made to residential 15 lines on the NDNCR. See Verkhovskaya Rep. Defendant’s arguments about the report go to the 16 weight of the evidence, not its admissibility, and Defendant is welcome to attack the report at trial. 17 Defendant argues it is entitled to summary judgment on the injunctive relief claims of both 18 classes. Def.’s Mot. 22-24. Defendant argues that the complaint does not “pray for injunctive relief 19 on behalf of either class,” a contention that is inaccurate. See Compl. ¶¶ 80, 91. Defendant argues 20 there is no evidence that any person on its internal do-not-call list using a non-business line 21 received more than one call from Defendant in a 12-month period. Def.’s Mot. 22-24. However, 22 Plaintiff has identified evidence showing that he was on Defendant’s do-not-call list but continued 23 to receive calls in a 12-month period. Ex. Z, Dep. of Chinitz in Opp’n 168:7-171:13; Decl. of 24 Heather Wang, Ex. 1, Intero Do Not Call List, ECF 159-1. Additionally, as the Court previously 25 established, arguments about the minimum standards required for an internal do-not-call list under 26 47 C.F.R. 64.1200 go to an affirmative defense for which Defendant bears the burden of proof. 27 For this reason, Defendant’s arguments that Plaintiff has not presented evidence about 1 Defendant’s motion seeking summary judgment on Plaintiff’s TCPA claims is DENIED. 2 ii. UCL Claim 3 Finally, Defendant argues that summary judgment is warranted on Plaintiff’s UCL claim 4 because Plaintiff and the classes lack standing to bring this claim. Def.’s Mot. 24-25. Plaintiff does 5 not respond to this argument. 6 Whether a UCL claim is actionable turns first on a plaintiff’s standing to bring it. Huynh v. 7 Quora, Inc., No. 5:18-CV-07597-BLF, 2020 WL 7495097, at *17 (N.D. Cal. Dec. 21, 2020) 8 (citing In re Anthem, Inc. Data Breach Litig., 162 F. Supp. 3d 953, 985 (2016)). To establish 9 standing for a UCL claim, a plaintiff must demonstrate that the alleged unfair competition caused 10 him or her to personally lose money or property, i.e., suffer economic injury-in-fact. In re Yahoo! 11 Inc. Customer Data Sec. Litig., 313 F. Supp. 3d 1113 (N.D. Cal. 2018); Cal. Bus. & Prof. Code § 12 17204; Kwikset Corp. v. Super. Ct., 51 Cal. 4th 310, 322-27 (2011). Economic injury-in-fact can 13 occur where a defendant’s wrongful conduct requires the plaintiff to “enter into a transaction, 14 costing money or property, that would otherwise have been unnecessary.” Kwikset, 51 Cal. 4th at 15 323. Defendant argues that there is no evidence that Plaintiff lost money or property. Def’s Mot. 16 24. Plaintiff does not respond to this argument or present any evidence demonstrating an economic 17 injury-in-fact. For this reason, summary judgment is GRANTED for Defendant on Plaintiff’s UCL 18 claim. 19 20 IV. ORDER 21 For the foregoing reasons, IT IS HEREBY ORDERED that: 22 1. Summary Judgment is GRANTED for Plaintiff on the first issue that Defendant is 23 vicariously liable for calls made by its corporate agents and sales associates, with the 24 issue of whether these calls violated the TCPA to be determined at trial; 25 2. Summary Judgment is DENIED on Plaintiff’s second issue whether Defendant is liable 26 for violations of the TCPA’s requirements that it maintain an internal do-not call-list 27 that meets every enumerated minimum standard set forth in the under 47 U.S.C. § 1 3. Summary Judgment is DENIED for Defendant on Plaintiff's TCPA claims; and 2 4. Summary Judgment is GRANTED for Defendant on Plaintiffs UCL claim. 3 4 || Dated: April 12, 2021 kom Lh ham in) 5 BETH LABSON FREEMAN 6 United States District Judge 7 8 9 10 11 a 12

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