Ewing v. Csolar

• Court: District Court, S.D. California
• Decided: September 22, 2022
• Docket: 3:22-cv-00720
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTON A. EWING, Case No.: 22-cv-0720-WQH-JLB

12 Plaintiff, ORDER 13 v. 14 CSOLAR, a California corporation, 15 Defendant. 16 HAYES, Judge: 17 The matter before the Court is the Motion for Default Judgment filed by Plaintiff 18 Anton A. Ewing. (ECF No. 5). 19 I. PROCEDURAL BACKGROUND 20 On May 19, 2022, Plaintiff filed a Complaint against Defendant CSOLAR, arising 21 from Defendant’s alleged unlawful telephone solicitation practices. (ECF No. 1). On May 22 31, 2022, Plaintiff filed proof of service as to Defendant. (ECF No. 3). On June 21, 2022, 23 Plaintiff filed a Request for Entry of Clerk Default as to Defendant (ECF No. 4), and the 24 Clerk of the Court entered default (ECF No. 6). On June 27, 2022, Plaintiff filed a Motion 25 for Default Judgment. (ECF No. 5). 26 /// 27 /// 28 1 II. ALLEGATIONS IN THE COMPLAINT 2 Defendant is a California corporation and “solar panel installation broker” that 3 “conducts telemarketing campaigns” to “sell its services to consumers throughout southern 4 California.” (ECF No. 1 ¶¶ 33, 35). Plaintiff resides in San Diego, California and is “the 5 owner and sole user of … cellular phone number 619-719-9640.” (Id. ¶ 1). 6 Plaintiff “registered his cell phone number on the [national do-not-call registry] on 7 February 16, 2012, for the express purpose that he would not receive unsolicited calls or 8 text messages.” (Id. ¶ 51). Plaintiff’s cellular phone number “is not associated with a 9 business and is used for personal, private residential use only.” (Id. ¶ 52). 10 Defendant “called or texted Plaintiff” from various numbers eleven times between 11 April 27, 2022, and May 18, 2022, “to sell its solar panel installation services.” (Id. ¶¶ 47- 12 48). On “each and every call,” Plaintiff “heard a very clear ‘bubble popping’ type sound 13 followed by a rather long pause before the artificial-voice prerecorded message began to 14 play.” (Id. ¶ 38). Plaintiff “was required to hit ‘1’ to be transferred to a live operator.” (Id.). 15 “Replying ‘STOP’ did not work,” and Defendant continued “calling and texting” despite 16 Plaintiff “making very clear” that he did not want to be called. (Id. ¶ 48). 17 “The distinct bubble-popping sound and the long silent pause were … clear 18 indication[s] that an [Automatic Telephone Dialing System (‘ATDS’)] robo-dialer was 19 used by Defendant for the calls.” (Id. ¶ 40). “The text messages were generic which 20 indicates an ATDS was used by Defendant” to send “[a]ll of the text messages.” (Id. ¶ 41- 21 42). An employee of Defendant “stated that [Defendant] uses Nation Energy Services … 22 to obtain [its] telemarketing calling list to upload into [an] autodialer software” and 23 “admitted that they were using an “auto dialing computer to make the calls and send out 24 the text messages in order to get California residents to buy their solar programs.” (Id. ¶¶ 25 44, 50). 26 Plaintiff and Defendant “do not have a pre-existing business relationship.” (Id. ¶ 39). 27 Plaintiff “never provided his phone number or his consent to Defendant [ ] to receive any 28 solicitation from them or on their behalf.” (Id. ¶ 58). Defendant has caused Plaintiff harm 1 in the form of “aggravation, nuisance, and invasions of privacy, … the wear and tear on 2 [Plaintiff’s] phone, interference with the use of [Plaintiff’s] phone, consumption of battery 3 life, loss of value for monies [Plaintiff] paid to his AT&T carrier for the receipt of such 4 messages, and the diminished use, enjoyment, value, and utility of [Plaintiff’s] telephone 5 plan.” (Id. ¶ 45). 6 Plaintiff brings the following claims against Defendant: (1) negligent and willful or 7 knowing violations of the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 8 227; (2) violations of the California Invasion of Privacy Act (“CIPA”), Cal. Penal Code 9 Sections 630 et seq.; and (3) violations of the California Consumer Legal Remedies Act 10 (“CLRA”), Cal. Civ. Code Sections 1750 et seq. The Complaint requests damages, 11 declaratory and injunctive relief, and costs. 12 III. DEFAULT JUDGMENT 13 Rule 55(a) of the Federal Rules of Civil Procedure requires that the Clerk of the 14 Court enter default “[w]hen a party against whom a judgment for affirmative relief is 15 sought has failed to plead or otherwise defend, and that failure is shown by affidavit or 16 otherwise.” Fed. R. Civ. P. 55(a). Rule 55(b)(2) provides that the court may grant default 17 judgment after default has been entered. See Fed. R. Civ. P. 55(b)(2). “The general rule of 18 law is that upon default the factual allegations of the complaint, except those relating to the 19 amount of damages, will be taken as true.” TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 20 915, 917-18 (9th Cir. 1987) (quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 21 Cir. 1977)). “Factors which may be considered by courts” in determining whether default 22 judgment should be granted include: 23 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money 24 at stake in the action[,] (5) the possibility of a dispute concerning material 25 facts[,] (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on 26 the merits. 27 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing 6 MOORE’S FEDERAL 28 1 Plaintiff has demonstrated that Defendant was served with the summons and 2 Complaint and the Clerk of the Court has entered default against Defendant. Default 3 judgment is likely Plaintiff’s only recourse for recovery and the possibility of a dispute 4 concerning material facts or that Defendant’s default was due to excusable neglect is low. 5 The first, fifth, and sixth Eitel factors weigh in favor of default judgment. Further, although 6 there is a “strong policy ... favoring decision on the merits,” Eitel, 782 F.2d at 1472, 7 Defendant’s failure to answer the Complaint makes a decision on the merits impractical, if 8 not impossible. 9 The second and third Eitel factors favor default judgment where the plaintiff “state[s] 10 a claim on which the [plaintiff] may recover.” Danning v. Lavine, 572 F.2d 1386, 1388 11 (9th Cir. 1978). In the Complaint, Plaintiff brings claims against Defendant for violations 12 of two subsections of the TCPA, as well as state law claims under the CIPA and the CLRA.1 13 A. TCPA § 227(b) 14 The TCPA makes it “unlawful for any person ... to make any call (other than a call 15 made for emergency purposes or made with the prior express consent of the called party) 16 using any [ATDS] or an artificial or prerecorded voice ... to any telephone number assigned 17 to a ... cellular telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). To bring an action under 18 § 227(b)(1)(A)(iii), a plaintiff must show: “(1) the defendant called a cellular telephone 19 number; (2) using an [ATDS]; (3) without the recipient's prior express consent.” Meyer v. 20 Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). The TCPA defines 21 an ATDS as “equipment which has the capacity—(A) to store or produce telephone 22 numbers to be called, using a random or sequential number generator; and (B) to dial such 23 numbers.” 47 U.S.C. § 227(a)(1). 24 25

26 1 Plaintiff further requests default judgment for violations of Cal. Bus. & Profs. Code Section 17200. 27 This request is denied because the Complaint does not contain a cause of action for violation of Section 17200. See Fed. R. Civ. P. 54(c) (“A default judgment must not differ in kind from, or exceed in 28 1 The Complaint alleges that Plaintiff is “the owner and sole user of … cellular phone 2 number 619-719-9640.” (ECF No. 1 ¶ 1). The Complaint alleges that Defendant “called or 3 texted Plaintiff” from various numbers eleven times between April 27, 2022, and May 18, 4 2022, “to sell its solar panel installation services.” (Id. ¶¶ 47-48). The Court concludes that 5 the Complaint alleges sufficient facts to show that Defendant called Plaintiff’s cellular 6 telephone number eleven times. See Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 7 952 (9th Cir. 2009) (“[A] text message is a ‘call’ within the meaning of the TCPA.”). 8 The Complaint alleges that on “each and every call,” Plaintiff “heard a very clear 9 ‘bubble popping’ type sound followed by a rather long pause before the artificial-voice 10 prerecorded message began to play.” (ECF No. 1 ¶ 38). The Complaint alleges that Plaintiff 11 “was required to hit ‘1’ to be transferred to a live operator.” (Id.). The Complaint alleges 12 that “[t]he text messages were generic which indicates an ATDS was used by Defendant” 13 to send “[a]ll of the text messages.” (Id. ¶¶ 41-42). The Complaint alleges that an employee 14 of Defendant “stated that [Defendant] uses Nation Energy Services … to obtain [its] 15 telemarketing calling list to upload into [an] autodialer software” and “admitted that they 16 were using an “auto dialing computer to make the calls and send out the text messages in 17 order to get California residents to buy their solar programs.” (Id. ¶¶ 44, 50). The Court 18 concludes that the Complaint alleges sufficient facts to show that Defendant used an ATDS 19 to place each of the eleven calls received by Plaintiff. 20 The Complaint alleges that Plaintiff “never provided his phone number or his 21 consent to Defendant [ ] to receive any solicitation from them or on their behalf.” (Id. ¶ 22 58). The Complaint alleges that Defendant continued “calling and texting” despite Plaintiff 23 “making very clear” that he did not want to be called. (Id. ¶ 48). The Court concludes that 24 the Complaint alleges sufficient facts to show that Plaintiff did not consent to the calls. 25 Plaintiff states a claim for relief under § 227(b)(1)(A)(iii) of the TCPA. 26 B. TCPA § 227(c) 27 Section 227(c) of the TCPA further instructs the Federal Communications 28 Commission (“FCC”) to “initiate a rulemaking proceeding concerning the need to protect 1 residential telephone subscribers’ privacy rights to avoid receiving telephone solicitations 2 to which they object.” 47 U.S.C. § 227(c)(1). Pursuant to this directive, the implementing 3 regulation of the TCPA provides that “[n]o person or entity shall initiate any telephone 4 solicitation to: … [a] residential telephone subscriber who has registered his or her 5 telephone number on the national do-not-call registry of persons who do not wish to receive 6 telephone solicitations that is maintained by the Federal Government.” 47 C.F.R. § 7 64.1200(c). A telephone solicitation is: 8 the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services, which 9 is transmitted to any person, but such term does not include a call or message: 10 (i) To any person with that person’s prior express invitation or permission; 11 (ii) To any person with whom the caller has an established business 12 relationship; or (iii) By or on behalf of a tax-exempt nonprofit organization. 13 14 Id. § 64.1200(f)(15). Personal cellular telephones can be considered “residential 15 telephones.” See In re Rules and Regulations Implementing the Telephone Consumer 16 Protection Act of 1991, 18 F.C.C.R. 14014, 14039 (2003). The TCPA establishes a private 17 right of action for “[a] person who has received more than one telephone call within any 18 12-month period by or on behalf of the same entity” in violation of this regulation. 47 19 U.S.C. § 227(c)(5). 20 The Complaint alleges that Plaintiff “registered his cell phone number on the 21 [national do-not-call registry] on February 16, 2012, for the express purpose that he would 22 not receive unsolicited calls or text messages.” (ECF No. 1 ¶ 51). The Complaint alleges 23 that Plaintiff’s cellular phone number “is not associated with a business and is used for 24 personal, private residential use only.” (Id. ¶ 52). The Complaint alleges Defendant “called 25 or texted Plaintiff” from various numbers eleven times between April 27, 2022, and May 26 18, 2022, “to sell its solar panel installation services.” (Id. ¶¶ 47-48). The Complaint alleges 27 that an employee of Defendant “admitted” that they were calling and texting “in order to 28 get California residents to buy [Defendant’s] solar programs.” (Id. ¶¶ 44, 50). The 1 Complaint alleges that Plaintiff and Defendant “do not have a pre-existing business 2 relationship,” and that Plaintiff “never provided his phone number or his consent to 3 Defendant [ ] to receive any solicitation from them or on their behalf.” (Id. ¶¶ 39, 58). The 4 Court concludes that Plaintiff alleges sufficient facts to show that Defendant initiated 5 eleven telephone solicitations to Plaintiff—a residential telephone subscriber who has 6 registered his telephone number on the national do-not-call registry—in violation of § 7 227(c)(5) of the TCPA. 8 C. CIPA 9 The CIPA provides a private right of action against any person who, “without the 10 consent of all parties to a communication, intercepts or receives and intentionally records 11 ... a communication transmitted between” a cellular telephone and another cellular 12 telephone, a landline, or a cordless telephone. Cal. Pen. Code § 632.7; see id. § 637.2. The 13 Complaint does not allege any facts from which the Court can infer that the alleged calls 14 at issue were recorded. The Complaint does not state a claim for a violation of the CIPA. 15 D. CLRA 16 The CLRA prohibits 17 [d]isseminating an unsolicited prerecorded message by telephone without an unrecorded, natural voice first informing the person answering the telephone 18 of the name of the caller or the organization being represented, and either the 19 address or the telephone number of the caller, and without obtaining the consent of that person to listen to the prerecorded message. 20 21 Cal. Civ. Code § 1770(a)(22)(A); see id. § 1780. The CLRA’s prohibition on disseminating 22 unsolicited prerecorded messages only applies to calls “intended to result or that results in 23 the sale or lease of goods or services to any consumer,” and excludes certain calls made in 24 the course of an established relationship. Id. § 1770(a). 25 The Complaint alleges that Defendant “called or texted Plaintiff” from various 26 numbers eleven times between April 27, 2022, and May 18, 2022, “to sell its solar panel 27 installation services.” (ECF No. 1 ¶¶ 47-48). The Complaint alleges that on “each and every 28 call,” Plaintiff “heard a very clear ‘bubble popping’ type sound followed by a rather long 1 pause before the artificial-voice prerecorded message began to play.” (Id. ¶ 38). Plaintiff 2 “was required to hit ‘1’ to be transferred to a live operator.” (Id.). The Complaint alleges 3 that Plaintiff and Defendant “do not have a pre-existing business relationship,” and that 4 Plaintiff “never provided his phone number or his consent to Defendant [ ] to receive any 5 solicitation from them or on their behalf.” (Id. ¶¶ 39, 58). Defendant has caused Plaintiff 6 harm in the form of “aggravation, nuisance, and invasions of privacy, … the wear and tear 7 on [Plaintiff’s] phone, interference with the use of [Plaintiff’s] phone, consumption of 8 battery life, loss of value for monies [Plaintiff] paid to his AT&T carrier for the receipt of 9 such messages, and the diminished use, enjoyment, value, and utility of [Plaintiff’s] 10 telephone plan.” (Id. ¶ 45). The Court concludes that Plaintiff states a claim for relief under 11 Section 1770(a)(22)(A) of the CLRA. 12 Plaintiff states a claim for relief for Defendant’s violations of the TCPA and the 13 CLRA. The second and third Eitel factors weigh in favor of default judgment. The Court 14 has considered the factors articulated in Eitel and concludes that Plaintiff is entitled to 15 default judgment against Defendant on his TCPA and CLRA claims. 16 IV. REMEDIES 17 Plaintiff requests $1,000 in statutory damages under the TCPA for each of the eleven 18 calls and texts Defendant allegedly made to Plaintiff—$500 for each violation of § 19 227(b)(1)(A)(iii) and $500 for each violation of § 227(c)(5). Plaintiff requests that the 20 Court find that Defendant’s violations of the TCPA were willful or knowing and grant 21 treble damages for a total of $33,000 in statutory damages under the TCPA. Plaintiff 22 requests a permanent injunction to prohibit Defendant from violating the TCPA in the 23 future. Plaintiff further requests $5,000 for each violation of the CIPA and $2,500 for each 24 violation of the CLRA.2 25 26

27 2 Plaintiff is not entitled to damages on his CIPA claim because the Complaint fails to state a claim for 28 1 The Court has determined that the Complaint alleges sufficient facts to show that 2 each of Defendant’s eleven calls or texts violated § 227(b)(1)(A)(iii) and § 227(c)(5)—a 3 total of 22 TCPA violations. Courts considering the issue have allowed separate recoveries 4 when the same call results in violations of both § 227(b) and § 227(c). See, e.g., Stark v. 5 Bridgepoint Benefits, LLC, 3:19-cv-01740-AJB-AGS, 2021 WL 347695, at *1 (S.D. Cal. 6 Feb. 2, 2021); Roylance v. ALG Real Estate Servs., Inc., No. 5:14-cv-2445-PSG, 2015 WL 7 1522244, at *10 (N.D. Cal. Mar. 16, 2015); Charvat v. NMP, LLC, 656 F.3d 440, 448 (6th 8 Cir. 2011) (“The fact that the statute includes separate provisions for statutory damages in 9 subsections (b) and (c) suggests that a plaintiff could recover under both.”). The TCPA 10 provides for $500 in statutory damages for each violation. See 47 U.S.C. §§ 227(b)(3)(B), 11 227(c)(5)(B). Plaintiff is entitled to a total of $11,000 in statutory damages for Defendant’s 12 twenty-two violations of the TCPA. 13 The TCPA further provides that the Court may grant treble damages “in its 14 discretion” if the Court finds that the defendant’s violations were “willful[] or knowing[].” 15 47 U.S.C. §§ 227(b)(3)(C), 227(c)(5)(C). District courts in this circuit have typically 16 exercised their discretion to award treble damages in cases where the defendant had a prior 17 judgment against it for violating the TCPA or where statutory damages were trivial. See 18 Ewing v. Senior Life Planning, LLC, No. 19-cv-1005-BAS-LL, 2019 WL 4573703, at *7 19 (S.D. Cal. Sept. 18, 2019). In this case there is no allegation that Defendant had a prior 20 judgment against it for violating the TCPA and an award of $11,000 in statutory damages 21 is sufficient to deter Defendant from violating the TCPA in the future. The Court declines 22 to award treble damages. 23 The TCPA provides that a Court may enjoin a defendant from violating §§ 227(b) 24 and 227(c). See 47 U.S.C. §§ 227(b)(3)(A), 227(c)(5)(A). However, Plaintiff has not 25 demonstrated irreparable injury or that damages are inadequate. See eBay Inc. v. 26 MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (“A plaintiff must demonstrate: (1) that 27 it has suffered an irreparable injury; (2) that remedies available at law, such as monetary 28 damages, are inadequate to compensate for that injury; (3) that, considering the balance of 1 || hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that 2 public interest would not be disserved by a permanent injunction.”); see also PepsiCo, 3 v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002) (stating that a plaintiff 4 ||that obtains default judgment “is not automatically entitled to an injunction’). □□□□□□□□□□ 5 request for an injunction is denied. 6 Plaintiff requests $2,500 under the CLRA for each of the eleven calls and texts 7 || alleged in the Complaint. However, the CLRA applies to voice calls, not text messages, 8 || see Cal. Civ. Code § 1770(a)(22)(A), and the Complaint does not allege how many calls 9 || were made to Plaintiff. Further, Plaintiff has not provided any evidence of the amount of 10 || damages as a result of Defendant’s violation of the CLRA. See Cal. Civ. Code § 1780(a)(1) 11 || (providing for the recovery of actual damages, not statutory damages); see also TeleVideo 12 || Sys., 826 F.2d at 917-18 (“The general rule of law is that upon default the factual 13 allegations of the complaint, except those relating to the amount of damages, will be taken 14 true.”) (quoting Geddes, 559 F.2d at 560). Plaintiff has not demonstrated that he 1s 15 entitled to damages on his CLRA claim. 16 || V. CONCLUSION 17 IT IS HEREBY ORDERED that the Motion for Default Judgment filed by Plaintiff 18 || Anton A. Ewing against Defendant CSOLAR (ECF No. 5) is granted in part and denied in 19 || part. The motion is granted as to Plaintiffs claims for violations of §§ 227(b)(1)(A) and 20 (c)(5) of the TCPA and Section 1770(a)(22)(A) of the CLRA, and is otherwise denied. 21 || Defendant is liable in the amount of $11,000. 22 IT IS FURTHER ORDERED that no later than fourteen (14) days from the date of 23 || this Order, Plaintiff shall e-mail a proposed judgment in accordance with the ruling in this 24 || Order to efile _hayes@casd.uscourts.gov. 25 ||Dated: September 22, 2022 BE: te Z. A a 26 Hon, William Q. Hayes 7 United States District Court 28