Ewing v. Senior Life Planning, LLC

• Court: District Court, S.D. California
• Decided: September 18, 2019
• Docket: 3:19-cv-01005
• Status: Unknown

Opinion

5 6

7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA

10 ANTON EWING, Case No. 19-cv-1005-BAS-LL 11 Plaintiff, ORDER GRANTING IN PART 12 MOTION FOR DEFAULT JUDGMENT 13 v. [ECF No. 7] 14 SENIOR LIFE PLANNING, LLC,

15 Defendant.

16 17

18 Anton Ewing filed a Complaint against Senior Life Planning, LLC, for 19 violations of the Telephone Consumer Protection Act (“TCPA”) under both 47 20 U.S.C. §227(b) (using an automatic telephone dialing system (“ATDS”) to deliver a 21 message without the consent of the owner) and § 227(c) (contacting a cellular 22 telephone listed in the Do Not Call database). (“Complaint,” ECF No. 1.) Senior 23 Life Planning, LLC has failed to respond. 24 Mr. Ewing now seeks default judgment in the amount of $64,000 for eight 25 telephone calls placed in violation of the TCPA. (ECF No. 7.) He seeks $1,500 per 26 telephone call per violation for a total of $24,000, and he also seeks damages under 27 the California Penal Code for unauthorized recording of a cellular telephone call. 1 The Court, in its discretion, declines to award treble damages per telephone 2 call, but will award $500 per telephone call for each violation for a total of $8,000. 3 Furthermore, the Court finds Mr. Ewing has failed to allege a cause of action or facts 4 supporting a cause of action for violation of California Penal Code §637.2, and, 5 therefore, declines to award damages under this section. 6 I. LEGAL STANDARD 7 Rule 55(b)(2) of the Federal Rules of Civil Procedure governs applications to 8 the court for default judgment. See Fed. R. Civ. P. 55(b)(2). Default judgment is 9 available as long as the plaintiff establishes: (1) defendant has been served with the 10 summons and complaint and default was entered for its failure to appear; (2) 11 defendant is neither a minor nor an incompetent person; (3) defendant is not in the 12 military service or not otherwise subject to the Soldiers and Sailors Relief Act of 13 1940; and (4) if defendant has appeared in the action, that defendant was provided 14 with notice of the application for default judgment at least seven days prior to the 15 hearing. See Fed. R. Civ. P. 55; Twentieth Century Fox Film Corp., v. Streeter, 438 16 F. Supp. 2d 1065, 1070 (D. Ariz. 2006). The Court must also satisfy that it has 17 personal jurisdiction over the defendant and that plaintiff has standing to bring the 18 lawsuit. See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (holding when considering 19 whether to enter default judgment, court may dismiss an action sua sponte for lack 20 of personal jurisdiction because a judgment entered without subject matter or 21 personal jurisdiction over the parties is void). 22 Entry of default judgment is within the trial court’s discretion. Aldabe v. 23 Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court 24 considers the following factors: (1) the possibility of prejudice to the plaintiff, (2) 25 the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) 26 the sum of money at stake in the action, (5) the possibility of a dispute concerning 27 the material facts, (6) whether the default was due to excusable neglect, and (7) the 1 strong policy underlying the Federal Rules of Civil Procedure favoring decisions on 2 the merits. Eitel v. McCool, 782 F.2d 1470 1471–72 (9th Cir. 1986). 3 Upon entry of default, the factual allegations in plaintiff’s complaint, except 4 those relating to damages, are deemed admitted. TeleVideo Sys., Inc., v. Heidenthal, 5 826 F.2d 915, 917–18 (9th Cir. 1987). Where the amount of damages claimed is a 6 liquidated sum or capable of mathematical calculation, the court may enter a default 7 judgment without a hearing. Davis v. Fendler, 650 F.2d 1154, 1161 (9th Cir. 1981). 8 In determining damages, a court may rely on declarations submitted by the plaintiff 9 in lieu of a full evidentiary hearing. See Philip Morris USA v. Castworld Prods., 10 Inc., 219 F.R.D. 494, 498 (C.D. Cal. 2003) (citing Fed. R. Civ. P. 55(b)(2)). 11 II. DISCUSSION 12 A. Procedural Requirements 13 Plaintiff has satisfied the procedural requirements for default judgment 14 pursuant to Rules 55 and 54(c) of the Federal Rules of Civil Procedure. Pursuant to 15 Rule 55(a), the Clerk of Court properly entered default against Defendant Senior Life 16 Planning, LLC. (ECF No. 5.) The Registered Agent of Senior Life Planning, LLC 17 was personally served with the summons and complaint, and Senior Life Planning 18 LLC failed to plead or otherwise defend this action. (ECF No. 3.) Defendant is not 19 a minor, an incompetent person, nor is it subject to the Soldiers and Sailors Civil 20 Relief Act of 1940. Furthermore, Defendant was also served with a copy of the 21 present Motion at least seven days prior to the hearing. (ECF No. 7.) 22 Thus, the Court, in its discretion, may order default judgment against 23 Defendant. But, before entering default judgment, the Court reviews personal and 24 subject matter jurisdiction, as well as the factors enumerated in Eitel. 25 B. Jurisdiction and Standing 26 1. Personal Jurisdiction 27 Plaintiff alleges specific personal jurisdiction over Senior Life Planning, LLC. 1 the defendant’s contacts with the forum state are sufficient to subject it to specific 2 jurisdiction. Ballard v. Savage, 65 F.3d 1495, 1498 (9th Cir. 1995). Under the three- 3 part inquiry, specific jurisdiction exists only if: (1) the out-of-state defendant 4 purposefully availed itself of the privilege of conducting activities in the forum, 5 thereby invoking the benefits and protections of the forum’s laws; (2) the cause of 6 action arose out of the defendant’s forum-related activities and (3) the exercise of 7 jurisdiction is reasonable. Myers v. Bennett Law Offices, 238 F.3d 1068, 1072 (9th 8 Cir. 2001). The plaintiff bears the burden of satisfying the first two prongs of this 9 specific jurisdiction test. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 10 802 (9th Cir. 2004). “If the plaintiff succeeds in satisfying both of the first two 11 prongs, the burden then shifts to the defendant to ‘present a compelling case’ that the 12 exercise of jurisdiction would not be reasonable.” Id. 13 Plaintiff has successfully shown that Senior Life Planning LLC purposely 14 availed itself of the privilege of conducting activities in the forum when it placed 15 telephone calls to Plaintiff whose telephone and residence were in the Southern 16 District of California. Furthermore, since the cause of actions under the TCPA arose 17 out of these forum-related activities, Plaintiff has sufficiently satisfied the first two 18 prongs of the specific jurisdiction test. Because Senior Life Planning LLC has failed 19 to respond to the Complaint, it has not met its burden to show that exercise of 20 jurisdiction in this forum would not be reasonable. 21 2. Standing 22 Plaintiff bears the burden of establishing that he has standing to bring the 23 claims at issue. To demonstrate standing, plaintiff must show that he has suffered an 24 injury in fact, fairly traceable to the challenged conduct of the defendant, and that 25 this injury in fact is likely to be redressed by a favorable judicial decision. Spokeo v. 26 Robins, 136 S. Ct. 1540, 1547 (2016) (citing Lujan v. Defenders of Wildlife, 504 U.S. 27 555, 560–61 (1992)). To establish injury in fact, plaintiff must show that he “suffered 1 ‘actual or imminent, not conjectural or hypothetical.’” Id. A plaintiff does not 2 automatically satisfy the injury in fact requirement whenever a statute grants a 3 statutory right and purports to authorize that person to sue to vindicate that right. Id. 4 at 1549. Article III standing requires a concrete injury even in the context of a 5 statutory violation. Id. 6 In this case, Plaintiff alleges that he was called on his cellular telephone at 7 least five times by Defendant. (Complaint ¶ 41.) Plaintiff says he “expressly 8 informed Defendant to cease and desist from all future telemarketing on the first 9 call.” (Id.). Plaintiff alleges that his “personal privacy and peace . . . was invaded 10 by Defendant’s persistent phone calls using an ATDS and a pre-recorded message.” 11 (Id.) Finally, Plaintiff claims he has registered his telephone on the Do Not Call list 12 specifically because he does not wish to receive these telephone calls. (Id. ¶ 34.) 13 This is sufficient injury in fact, fairly traceable to the challenged conduct of the 14 defendant, to satisfy standing under Spokeo. See Van Patten v. Vertical Fitness Grp., 15 LLC, 847 F.3d 1037, 1043 (9th Cir. 2017) (“Unsolicited telemarketing phone calls 16 or text messages, by their nature, invade the privacy and disturb the solitude of their 17 recipients.”). Furthermore, this injury is likely to be redressed by a favorable judicial 18 decision. Therefore, Plaintiff has standing to bring the claims. 19 C. Eitel Factors 20 1. Possibility of Prejudice to Plaintiff 21 The first Eitel factor considers whether a plaintiff will suffer prejudice if a 22 default judgment is not entered. PepsiCo, Inc. v. Cal. Security Cans, 238 F. Supp. 23 2d 1172, 1177 (C.D. Cal. 2002). Plaintiff attempted to prevent telemarketing calls 24 by putting his name on the Do Not Call list and by instructing Defendant not to call 25 his number again, to no avail. If default judgment is not entered, Mr. Ewing will be 26 without recourse to recover for the injury suffered by this violation. 27 1 2. Substantive Merits and Sufficiency of the Complaint 2 Two of the Eitel factors are (1) the merits of the plaintiff’s substantive claim, 3 and (2) the sufficiency of the complaint. Eitel, 782 F.2d at 1471–72. The Ninth 4 Circuit has suggested that these two factors require that a plaintiff “state a claim on 5 which the [plaintiff] may recover.” Kleopping v. Fireman’s Fund, No. C 94-2684 6 TEH, 1996 WL 75314, at *2 (N.D. Cal. Feb. 13, 1996) (citing Danning v. Lavine, 7 572 F.2d 1386, 1388 (9th Cir. 1978)). 8 In Counts One and Two, Plaintiff alleges violations of the TCPA, section 9 227(b)(1)(A) (first count—call to a cellular line)) and (b)(1)(B) (second count—call 10 to a residential telephone) even though he is alleging all telephone calls were made 11 to his personal telephone number (619)719-9640. He fails to allege that this is a 12 residential line, therefore, the Court analyzes the cause of action under (b)(1)(A). 13 In the Ninth Circuit, to prove a violation of 47 U.S.C. §227(b)(1)(A), a plaintiff 14 must show that “(1) the defendant called a cellular telephone number; (2) using an 15 automatic telephone dialing system; (3) without the recipient’s prior express 16 consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 17 2012). The plaintiff must be the “called party,” which includes “a telephone service 18 subscriber.” Drew v. Lexington Consumer Advocacy, No. 16-cv-00200-LB, 2016 19 WL 9185292, at *6 (N.D. Cal. Aug. 11, 2016). 20 Plaintiff has sufficiently alleged a violation of the TCPA. He claims that 21 Catherine Gillespie, an employee of Senior Life Planning, LLC, called his cellular 22 telephone multiple times using an automatic telephone dialing system. (Complaint 23 ¶¶ 1, 4, 27, 31, 41.) He supports his claims that an ATDS was used by alleging 24 additional claims that: (1) Gillespie admitted using an ATDS on her computer to dial 25 his telephone (id. ¶ 4); (2) he heard a pause or click before the call, commonly 26 associated with an ATDS (id. ¶ 38); (3) there was a long delay when the calls were 27 connected (id. ¶ 38); (4) an audio recording via robotic voice message initiated the 1 personally (id. ¶ 46); (6) Plaintiff has never heard of Senior Life Planning, has never 2 visited any location operated by it, has never provided his cellular telephone number 3 to it, has never had a prior business relationship with it and has never purchased a 4 product or service from it (id. ¶ 46); and (7) he has no reason to be contacted by 5 Defendant (id. ¶ 46.) Plaintiff alleges he did not give permission or consent for these 6 calls. (Id. ¶ 28.) The calls were placed from a number owned, used and controlled 7 by Senior Life Planning, LLC. (Id. ¶ 31.) Thus, Plaintiff has stated a claim under 8 which he may recover. 9 In Count Three, Plaintiff alleges that he received telemarketing calls from 10 Senior Life Planning, LLC, despite the fact that he had registered his telephone 11 number with the Do Not Call database, in violation of 47 U.S.C. §227(c). Section 12 227(c) directs the Federal Communications Commission to formulate regulations to 13 protect telephone subscribers’ privacy rights and to establish a national database of 14 telephone subscribers who object to receiving telephone solicitations (the “Do Not 15 Call Registry”). See Kazemi v. Payless Shoesource, Inc., No. C 09-5142 MHP, 2010 16 WL 963225, at *2 (N.D. Cal, Mar. 16, 2010); 47 U.S.C. §227(c)(3). The regulations 17 promulgated under §227(c) prohibit telephone solicitation to any telephone number 18 on the Do Not Call Registry. Id.; 47 C.F.R. § 64.1200(c). Section 227(c)(5) 19 establishes a private right of action for a person who has received a telephone call in 20 violation of these regulations. Id. 21 Plaintiff alleges that Defendant called him multiple times on his Do Not Call 22 registered cell phone. (Complaint ¶¶ 19, 34.) “Defendant’s employee asked if 23 Plaintiff was interested in merchant cash advances or business loans.” (Id. ¶ 31.) 24 Thus, Plaintiff alleges a cause of action under § 227(c). 25 Finally, although Plaintiff states no cause of action for a violation of 26 California’s Invasion of Privacy Act (“CIPA”), or California Penal Code §637.2, the 27 Prayer for Relief alleges damages under this section. To prove a violation of CIPA, 1 (2) that one of the parties to the recorded call was using a cell phone, and (3) that 2 plaintiff did not consent to the recording.” NEI Contracting and Eng’g, Inc. v. 3 Hanson Aggregates Pac. Sw. Inc., No. 12-cv-1685 BAS (JLB), 2016 WL 4886933, 4 at *3 (S.D. Cal. Sept. 15, 2016). 5 Although Plaintiff alleges he received multiple telephone calls on his cellular 6 telephone, his allegations regarding the recording of any of those telephone calls is 7 sparse. The only reference to recording is in paragraph 4 when he alleges, “The 8 initial lady on the phone said her name was Lisa . . . Lisa then transferred the call to 9 her funding manager, Gillespie [the Senior Life Planning employee who allegedly 10 placed the calls using an ATDS]. Lisa admitted that she was recording the call at the 11 end and not the beginning.” (Complaint ¶ 4.) To the extent Plaintiff is alleging 12 violations of CIPA, the allegations in the Complaint are insufficient. There is no 13 allegation that any telephone call with a Senior Life Planning employee was 14 recorded. To the extent Plaintiff is alleging Lisa recorded a telephone call, it is not 15 clear what telephone call was recorded or what part of a call was recorded, nor is 16 Lisa’s role with Senior Life Planning clear. The Complaint suggests Lisa’s only role 17 was to transfer the call to the Senior Life Planning executive. Hence, to the extent 18 Plaintiff is requesting default judgment on this cause of action, the substantive merits 19 and sufficiency of the Complaint weigh against granting default judgment. 20 3. Sum of Money at Stake 21 The fourth Eitel factor balances “the amount of money at stake in relation to 22 the seriousness of the [d]efendant’s conduct.” PepsiCo, 238 F. Supp. 2d at 1175; see 23 also Eitel, 782 F.2d at 1471–72. Default judgment is disfavored where the sum of 24 money at stake is too large or unreasonable in relation to defendant’s conduct. 25 Truong Giang Corp. v. Twinstar Tea Corp., No. C 06-03594 JSW, 2007 WL 26 1545173, at *12 (N.D. Cal. May 29, 2007). 27 Plaintiff is requesting $64,000 in damages for eight telephone calls. However, 1 the Court finds is insufficiently alleged. Plaintiff is requesting $24,000 for the TCPA 2 violations. In light of the fact that this is no more than is allowed under the statute, 3 the Court finds this factor supports granting default judgment. 4 4. Possibility of Dispute 5 The next Eitel factor considers the possibility that material facts are disputed. 6 PepsiCo, 238 F. Supp. 2d at 1471–72. Generally, there is little possibility of dispute 7 concerning material facts because (1) based on the entry of default, the Court accepts 8 allegations in the complaint as true and (2) Defendant has not made any effort to 9 challenge the complaint or otherwise appear in this case. See Pepsico, Inc., 238 F. 10 Supp. 2d at 1177. Therefore, this factor weighs in favor of granting default judgment. 11 5. Possibility of Excusable Neglect 12 The sixth Eitel factor considers whether a defendant’s default may have 13 resulted from excusable neglect. PepsiCo, 238 F. Supp. 2d at 1177; see also Eitel, 14 782 F.2d at 1471–72. Defendant was properly served with the Complaint. (ECF No. 15 3.) Defendant was also served with both the Request for Entry of Default and the 16 Motion for Default Judgment. (ECF Nos. 4, 7.) Defendant has not responded. Thus, 17 the possibility that Defendant’s default resulted from excusable neglect is remote. 18 See Shanghai Automation Instrument Co., Ltd. v. Kuei, 194 F. Supp. 2d 996, 1005 19 (N.D. Cal. 2001) (finding no excusable neglect because defendants “were properly 20 served with the Complaint, the notice of entry of default, as well as the papers in 21 support of the instant motion”). Accordingly, this factor weighs in favor of the entry 22 of default judgment. 23 6. Policy Favoring Decision on the Merits 24 “Cases should be decided upon their merits whenever reasonably possible.” 25 Eitel, 782 F.2d at 1472. The mere enactment of Rule 55(b) indicates, however, that 26 “this preference, standing alone, is not dispositive.” PepsiCo, 238 F. Supp. 2d at 27 1177 (quoting Kloepping, 1996 WL 75314, at *3 (“Defendant’s failure to answer 1 Since Defendant failed to plead or otherwise defend, the seventh Eitel factor does not 2 preclude the entry of default judgment. 3 7. Conclusion 4 Aside from the policy of deciding cases on the merits, all of the Eitel factors 5 weigh in favor of the entry of default judgment on the TCPA claims. Consequently, 6 the Court finds it appropriate to grant Plaintiff’s motion for default judgment against 7 Defendant on Counts One and Three. Because Plaintiff fails to adequately allege 8 sufficient facts in the Complaint to support the second cause of action and any claim 9 under CIPA, the Court denies default judgment on these claims. 10 D. Damages 11 Under Rule 8(a)(3), a plaintiff’s demand for relief must be specific, and 12 plaintiff “must ‘prove up’ the amount of damages.” Philip Morris USA Inc. v. Banh, 13 No. CV 03-4043 GAF (PJWx), 2005 WL 5758392, at *6 (C.D. Cal. Jan. 14, 2005); 14 Elektra Entmn’t Grp., Inc. v. Bryant, No. CV 03-6381 GAF (JTLX), 2004 WL 15 783123, at *5 (C.D. Cal. Feb. 13, 2004) (“Plaintiffs must ‘prove up’ the amount of 16 damages that they are claiming.”). Rule 54(c) limits the relief that can be sought in 17 a motion for entry of default judgment to that identified in the complaint. Fed. R. 18 Civ. Proc. 54(c) (“A default judgment must not differ in kind from, or exceed in 19 amount, what is demanded in the pleadings.”); see also PepsiCo, 238 F. Supp. 2d at 20 1174 (default judgment “shall not be different in kind from or exceed in amount that 21 prayed for in the [complaint]’”). Also, a defaulting defendant is not deemed to have 22 admitted facts concerning damages alleged in the complaint. See id. at 1177 (“Upon 23 entry of default, all well pleaded facts in the complaint are taken as true, except those 24 relating to damages” (citing TeleVideo Sys., 826 F.2d at 917–18)). 25 In his Motion for Default Judgment, Mr. Ewing requests $64,000 in damages 26 plus an injunction ordering Senior Life Planning, LLC to stop calling his cellular 27 1 telephone.1 Mr. Ewing attaches a Declaration to his Motion detailing eight telephone 2 calls he received on his personal cellular telephone number (619-719-9640), a 3 number he has registered with the Do Not Call Database since 2012. (ECF No. 7, 4 Declaration of Anton Ewing, at ¶¶ 4, 5, 12.) Mr. Ewing requests $1,500 in statutory 5 damages for each telephone call (or $12,000) for the cause of action under §227(b), 6 that is, making a telephone call with the use of an ATDS. He also requests an 7 additional $1,500 in statutory damages for each telephone call (an additional 8 $12,000) for the cause of action under §227(c), that it, making a telephone call to a 9 telephone number registered with the Do Not Call list. Finally, although there is no 10 cause of action in the Complaint for a violation of California’s Invasion of Privacy 11 Act (“CIPA”), Ewing requests an additional $5,000 per telephone call (or $40,000) 12 for the unlawful recording of his eight telephone calls. 13 As discussed above, the Court declines to grant the Motion for Default 14 Judgment to the extent Mr. Ewing is requesting damages under CIPA. Hence the 15 Court analyzes only the $24,000 requested under the TCPA. 16 Both §227(b) and §227(c) provide that, in lieu of actual damages, a plaintiff 17 may request statutory damages of up to $500 per violation. Courts considering the 18 issue have allowed separate recoveries for an ATDS violation and one for a violation 19 of the Do Not Call list even if the violations occurred in the same telephone call. See, 20 e.g., Heidarpour v. Empire Capital Funding Grp., Inc., No. 18-cv-250-YGR (KAW), 21 2018 WL 6809186, at *6 (N.D. Cal. Oct. 25, 2018); Lexington Consumer Advocacy, 22 2016 WL 9185292, at *10; Roylance v. ALG Real Estate Servs., Inc., No. 5: 14-cv- 23 2445-PSG, 2015 WL 1522244, at *10 (N.D. Cal. Mar. 16, 2015) (“‘[T]he fact that 24 the statute includes separate provisions for statutory damages in subsections (b) and 25

26 1 To the extent Mr. Ewing requests that default judgment be entered on liability only and that Mr. Ewing be allowed to conduct discovery on the issue of damages, the Court declines that request. 27 Mr. Ewing fails to show what such discovery would uncover. And, given the fact that Defendant 1 (c) suggests that a plaintiff could recover under both.’” (quoting Carvat v. NMP, 2 LLC, 656 F.3d 440, 448 (6th Cir. 2011))). This Court agrees that separate recoveries 3 should be allowed for each violation. 4 If the Court finds that Defendant willfully or knowingly violated the TCPA, 5 the Court may, in its discretion, increase the amount of the award to $1,500 per 6 telephone call. 47 U.S.C. §§ 227(B)(3)(c); Sapan v. Authority Tax Servs., LLC, No. 7 13-cv-2782 JAH (JLB), 2014 WL 12493282, at *2 (S.D. Cal. July 15, 2014). In J2 8 Global Communications, Inc. v. Blue Jay, Inc., No. c 08-4254 PJH, 2009 WL 9 4572726, at *7 (N.D. Cal. Dec. 1, 2009), the district court awarded treble damages 10 because other lawsuits had been brought against the defendant for violations of the 11 TCPA, and defendant had had a prior judgment issued against it for these violations, 12 yet persisted in violating the statute. Id. The court may also award treble damages 13 if it finds that statutory damages will be considered trivial and thus will not deter the 14 defendant from future misconduct. Lexington Consumer Advocacy, 2016 WL 15 9185292, at *11. 16 The Court declines to award treble damages in this case. Mr. Ewing details 17 eight calls made all in the month of May 2019. Although he claims in his Motion for 18 Default Judgment that Defendant has “2 civil lawsuits pending” and that “Senior Life 19 Planning has continued to get sued over and over, year after year[,]” (ECF No. 7, at 20 18), the only specifics about a lawsuit against Senior Life Planning is one filed in 21 2019. (Id. at 7.) It is not clear that the lawsuit listed was filed before the telephone 22 calls were made to Mr. Ewing in this case. Nor does Mr. Ewing provide any support 23 for his allegation that Defendant has been repeatedly sued for a violation of the 24 TCPA. Therefore, the Court, in its discretion, finds that treble damages are not 25 warranted in this case. 26 Hence the Court awards statutory damages of $500 per telephone call, or 27 $4,000 for the telephone calls made with an ATDS in violation of §227(b), and the 1 ||Court awards additional statutory damages of $500 per telephone call, or $4,000 for 2 || the telephone calls made to a Do No Call registered phone, in violation of §227(c). 3 Plaintiff also requests injunctive relief. Injunctive relief is also available under 4 ||the TCPA. Lexington Consumer Advocacy, 2016 WL 9185292, at *11. The Court 5 ||finds it appropriate to issue an injunction enjoining Senior Life Planning from 6 || contacting telephone number (619)-719-9640 in any fashion. 7 CONCLUSION 8 For the above-stated reasons, Plaintiff's Motion for Default Judgment is 9 ||GRANTED IN PART. (ECF No. 7.) The Court ORDERS the Clerk of the Court 10 |/to enter judgment in favor of Plaintiff and against Defendant on Counts One and 11 || Three in the amount of $8,000. Furthermore, the Court GRANTS Plaintiff’s request 12 ||for injunctive relief: Defendant is enjoined from contacting cellular telephone 13 ||/number (619)-719-9640. 14 Finally, the Court finds Plaintiff is unable to sufficiently plead a violation of 15 ||42 U.S.C. § 227(b)(1)(B) (TCPA call to a residential telephone)—his second cause 16 |/of action. Plaintiff admits multiple times that the phone number that Defendant 17 ||called is his cell phone. (See, e.g., Complaint J§ 4, 19.) Therefore, the Court sua 18 || sponte DISMISSES Plaintiff's second cause of action. 19 This concludes the litigation in this matter. The Clerk is instructed to close 20 the file. 21 IT IS SO ORDERED. 22 23 || DATED: September 19, 2019 /\ yy 2A (yitlug (Aaphan 6 How. Cynthia Bashant 25 United States District Judge 26 27 28