FILED NOT FOR PUBLICATION FEB 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISA R. ROMERO, No. 16-56265
Plaintiff-Appellant, DC No. CV 15-0193 CAB
v.
DEPARTMENT STORES NATIONAL MEMORANDUM* BANK; FDS BANK; DOES, 1 through 10,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted February 5, 2018 San Francisco, California
Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.
Plaintiff Elisa Romero appeals the district court’s dismissal of her claim
against Defendants Department Stores National Bank and FDS Bank (the “Banks”)
under the Telephone Consumer Protection Act (“TCPA”) for lack of Article III
standing. Romero also appeals the district court’s grant of summary judgment to
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the Banks on her claim under California’s Rosenthal Fair Debt Collection Practices
Act (“the Rosenthal Act”) and her common law claim for intrusion upon seclusion.
Romero’s claims arise out of nearly three hundred autodialed calls the Banks
placed to Romero’s cell phone regarding a debt that Romero concedes she owed.
Romero does not dispute that she provided the Banks her cell phone number; she
seeks compensation for calls made after July 2014, when she alleges that she first
asked the Banks to stop calling.
We review questions of standing de novo. Preminger v. Peake, 552 F.3d
757, 762 n.3 (9th Cir. 2008). We also review a grant of summary judgment de
novo. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
1. 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,
2 945 (9th Cir. 1993) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
438 U.S. 59, 77–79 (1978)).
We also reject the Banks’ attempt to distinguish Van Patten. The TCPA is
not limited to telemarketing calls; Congress recognized unsolicited contact as a
concrete harm regardless of caller or content, and this harm is similar in kind to
harm that has traditionally been redressable by courts. See Van Patten, 847 F.3d at
1042–43 (citing Telephone Consumer Protection Act of 1991, Pub. L. 102–243, §
2, ¶¶ 10, 12, 105 Stat. 2394 (1991) and Restatement (Second) of Torts § 652B
(Am. Law. Inst. 1977)). Thus, “[a] plaintiff alleging a violation under the TCPA
‘need not allege any additional harm beyond the one Congress has identified.’” Id.
at 1043 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016)). Disputes
regarding whether Romero gave prior express consent to receive calls from the
Banks or revoked that consent go to the merits of her TCPA claim, not to her
standing. See Van Patten, 847 F.3d at 1043–48.
2. The district court erred in granting summary judgment to the Banks
on the basis of a defense under the Rosenthal Act. This provision states in full:
A debt collector shall have no civil liability under this title if, within 15 days either after discovering a violation which is able to be cured, or after the receipt of a written notice of such violation, the debt collector notifies the debtor of the violation, and makes whatever
3 adjustments or corrections are necessary to cure the violation with respect to the debtor.
Cal. Civ. Code § 1788.30(d).1
The Rosenthal Act is remedial, see Cal. Civ. Code § 1788.1, and so it is
construed broadly to protect consumers, see People ex rel. Lungren v. Superior
Court, 926 P.2d 1042, 1055 (Cal. 1996). With this in mind, the plain meaning of §
1788.30(d) comports with Romero’s interpretation that the defense does not apply
if the creditor cannot undo the harm to a debtor that its violation has already
caused. Note that § 1788.30(d) applies only to “a violation which is able to be
cured.” The Banks’ contrary interpretation would undermine the remedial goals of
the Rosenthal Act.
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));
1 Romero’s argument that this defense is no longer available is foreclosed by Afewerki v. Anaya Law Group, 868 F.3d 771, 778–79 (9th Cir. 2017). 4 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.
3. The district court erred in granting summary judgment to the Banks
on Romero’s claim for intrusion upon seclusion. On this claim, Romero must
prove: “(1) intrusion into a private place, conversation or matter, (2) in a manner
highly offensive to a reasonable person.” Shulman v. Grp. W Prods., Inc., 955
P.2d 469, 490 (Cal. 1998) (citation omitted).
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
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FILED NOT FOR PUBLICATION FEB 28 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELISA R. ROMERO, No. 16-56265
Plaintiff-Appellant, DC No. CV 15-0193 CAB
v.
DEPARTMENT STORES NATIONAL MEMORANDUM* BANK; FDS BANK; DOES, 1 through 10,
Defendants-Appellees.
Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding
Argued and Submitted February 5, 2018 San Francisco, California
Before: D.W. NELSON, TASHIMA, and CHRISTEN, Circuit Judges.
Plaintiff Elisa Romero appeals the district court’s dismissal of her claim
against Defendants Department Stores National Bank and FDS Bank (the “Banks”)
under the Telephone Consumer Protection Act (“TCPA”) for lack of Article III
standing. Romero also appeals the district court’s grant of summary judgment to
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. the Banks on her claim under California’s Rosenthal Fair Debt Collection Practices
Act (“the Rosenthal Act”) and her common law claim for intrusion upon seclusion.
Romero’s claims arise out of nearly three hundred autodialed calls the Banks
placed to Romero’s cell phone regarding a debt that Romero concedes she owed.
Romero does not dispute that she provided the Banks her cell phone number; she
seeks compensation for calls made after July 2014, when she alleges that she first
asked the Banks to stop calling.
We review questions of standing de novo. Preminger v. Peake, 552 F.3d
757, 762 n.3 (9th Cir. 2008). We also review a grant of summary judgment de
novo. Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). We have
jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
1. 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,
2 945 (9th Cir. 1993) (citing Duke Power Co. v. Carolina Envtl. Study Grp., Inc.,
438 U.S. 59, 77–79 (1978)).
We also reject the Banks’ attempt to distinguish Van Patten. The TCPA is
not limited to telemarketing calls; Congress recognized unsolicited contact as a
concrete harm regardless of caller or content, and this harm is similar in kind to
harm that has traditionally been redressable by courts. See Van Patten, 847 F.3d at
1042–43 (citing Telephone Consumer Protection Act of 1991, Pub. L. 102–243, §
2, ¶¶ 10, 12, 105 Stat. 2394 (1991) and Restatement (Second) of Torts § 652B
(Am. Law. Inst. 1977)). Thus, “[a] plaintiff alleging a violation under the TCPA
‘need not allege any additional harm beyond the one Congress has identified.’” Id.
at 1043 (quoting Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1549 (2016)). Disputes
regarding whether Romero gave prior express consent to receive calls from the
Banks or revoked that consent go to the merits of her TCPA claim, not to her
standing. See Van Patten, 847 F.3d at 1043–48.
2. The district court erred in granting summary judgment to the Banks
on the basis of a defense under the Rosenthal Act. This provision states in full:
A debt collector shall have no civil liability under this title if, within 15 days either after discovering a violation which is able to be cured, or after the receipt of a written notice of such violation, the debt collector notifies the debtor of the violation, and makes whatever
3 adjustments or corrections are necessary to cure the violation with respect to the debtor.
Cal. Civ. Code § 1788.30(d).1
The Rosenthal Act is remedial, see Cal. Civ. Code § 1788.1, and so it is
construed broadly to protect consumers, see People ex rel. Lungren v. Superior
Court, 926 P.2d 1042, 1055 (Cal. 1996). With this in mind, the plain meaning of §
1788.30(d) comports with Romero’s interpretation that the defense does not apply
if the creditor cannot undo the harm to a debtor that its violation has already
caused. Note that § 1788.30(d) applies only to “a violation which is able to be
cured.” The Banks’ contrary interpretation would undermine the remedial goals of
the Rosenthal Act.
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));
1 Romero’s argument that this defense is no longer available is foreclosed by Afewerki v. Anaya Law Group, 868 F.3d 771, 778–79 (9th Cir. 2017). 4 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.
3. The district court erred in granting summary judgment to the Banks
on Romero’s claim for intrusion upon seclusion. On this claim, Romero must
prove: “(1) intrusion into a private place, conversation or matter, (2) in a manner
highly offensive to a reasonable person.” Shulman v. Grp. W Prods., Inc., 955
P.2d 469, 490 (Cal. 1998) (citation omitted).
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
5 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.
The Banks have not shown that California would apply a creditor’s qualified
privilege to this type of claim, and we decline to do so here on this record. The
district court assumed that Romero could meet the first element of her claim
regarding intrusion into a private place. We decline the Banks’ request to affirm
on the alternative ground that Romero cannot meet this fact-intensive element of
her claim, as there remain disputed issues that preclude affirming summary
judgment on this basis.
6 REVERSED and REMANDED.