Jenkins v. Bank Of America

• Court: District Court, S.D. California
• Decided: April 13, 2023
• Docket: 3:22-cv-01251
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LIDIA JENKINS, individually and on Case No. 22-cv-1251-BAS-JLB behalf of others, 12 ORDER: Plaintiff, 13 (1) DENYING DEFENDANT’S v. REQUEST FOR JUDICIAL 14 NOTICE (ECF No. 13-1); BANK OF AMERICA, N.A., 15 AND Defendant. (2) DENYING DEFENDANT’S 16 MOTION TO DISMISS (ECF 17 No. 13)

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21 22 Before the Court is Defendant’s Motion to Dismiss this action for failure to state a 23 claim brought pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Mot., ECF 24 No. 13.) Plaintiff opposes (Opp’n, ECF No. 14), and Defendant replies (Reply, ECF No. 25 15). Collateral to its Motion, Defendant requests the Court take judicial notice of two 26 Exhibits. (Req. for Judicial Notice (“RJN”), ECF No. 13-1.) Having considered the parties’ 27 filings, the Court DENIES Defendant’s Request for Judicial Notice and DENIES 28 Defendant’s Motion to Dismiss. 1 2 I. BACKGROUND 3 Prior to September 2021, Plaintiff incurred credit card debt to Defendant.1 (Compl. 4 ¶ 8, ECF No. 1.) At some point later, Defendant began “robo-calling” Plaintiff’s cellular 5 phone requesting payment. (Id. ¶ 9.) In response, Plaintiff retained an attorney to address 6 her debt and Defendant’s calls. (Id. ¶ 10.) On September 27, 2021, Plaintiff’s attorney faxed 7 a letter to “multiple fax numbers belonging to Defendant” stating “[p]lease cease further 8 communication with me.” (Id. ¶ 11.) The faxes included Plaintiff’s full name, address, and 9 the last four digits of her social security number. (Id.) The Complaint alleges that Plaintiff 10 “revoked any prior express consent Defendant may have believed it had to robo-dial 11 Plaintiff” through these faxes. (Id. ¶ 21.) During the next three months, Defendant called 12 Plaintiff twelve different times using an “artificial or prerecorded voice.” (Id. ¶¶ 12–22.) 13 Plaintiff filed the Complaint on August 24, 2022, alleging violations of the 14 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C § 227. Defendant now moves to 15 dismiss and requests that the Court take judicial notice of a Credit Card Agreement 16 (“CCA”), which it claims is between the parties and includes a provision establishing 17 Plaintiff’s consent to contact.2 (RJN 2.) In an Amendment to the CCA (“Amendment”), 18 which appears to have been mailed after the CCA was executed as part of a credit card bill, 19 Defendant explains how a consumer’s consent revocation must take place: 20 If you do not want to receive automatically dialed communications for this account, including prerecorded messages or texts, as described above, you 21 must (1) provide us with written notice revoking your prior consent; and (2) 22 in that written notice, include your name and mailing address as they appear on the account, and the last four digits of your account number. The notice 23

24 1 For the pending Motions, the Court accepts the factual allegations in the Complaint as true. See 25 Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). 2 The provision, “Telephone Calls: Calling, Monitoring and Recording,” states, “Where you have 26 provided a cell phone number directly to us, you consent and agree to accept servicing calls and text messages to your cell phone from us. For example, we may place calls to you about fraud alerts or amounts 27 you owe us (collection calls) on your account. For any telephone or cell phone calls/communications we place to you, you consent and agree that those calls may be automatically dialed including prerecorded 28 1 must be sent to the address listed below. Bank of America, PO Box 982236, El Paso, TX 79998-2236. 2

3 (Ex. 2 at 9 to RJN, ECF No. 13-3.) 4 II. LEGAL STANDARD 5 A motion to dismiss pursuant to Rule 12(b)(6) tests the legal sufficiency of the 6 claims asserted in the complaint. Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). “A 7 Rule 12(b)(6) dismissal may be based on either a ‘lack of cognizable legal theory’ or ‘the 8 absence of sufficient facts alleged under a cognizable legal theory.’” Johnson v. Riverside 9 Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008) (quoting Balistreri v. Pacifica 10 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)). 11 A complaint must plead sufficient factual allegations to “state a claim for relief that 12 is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). “A claim 13 has facial plausibility when the plaintiff pleads factual content that allows the court to draw 14 the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The 15 court must accept all factual allegations pleaded in the complaint as true and must construe 16 them and draw all reasonable inferences in favor of the nonmoving party. Cahill v. Liberty 17 Mut. Ins. Co., 80 F.3d 336, 337–38 (9th Cir. 1996). The court, however, need not accept 18 conclusory allegations as true. Rather, it must “examine whether conclusory allegations 19 follow from the description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 20 F.2d 1115, 1121 (9th Cir. 1992) (citations omitted). 21 III. ANALYSIS 22 A. Judicial Notice 23 Defendant requests this Court take judicial notice of the CCA and its Amendment 24 absent any authenticating declarations. Fed. R. Evid. 901(a). (RJN 2.) Under Rule 201(b), 25 the court may judicially notice a fact that “can be accurately and readily determined from 26 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). Here, 27 Defendant provides contracts for Plaintiff’s personal credit card. (Ex. 1 to RJN; Ex. 2 to 28 RJN.) Banking agreements are private, and unlike public documents, the provided 1 agreements are not from sources whose accuracy cannot reasonably be questioned. See, 2 e.g., Akkelian v. Nourian, No. CV 17-1446 PSG (Ex), 2017 WL 10562757, at *5 (C.D. 3 Cal. Sept. 8, 2017) (noting the agreement at issue was “a private contract between private 4 parties,” and therefore was “not from a public source or other source ‘whose accuracy 5 cannot reasonably be questioned.’” (quoting Lee v. City of L.A., 250 F.3d 688, 689 (9th 6 Cir. 2001))). Thus, the Court denies Defendant’s Request for Judicial Notice of the CCA 7 and its Amendment. 8 The Court could possibly incorporate the CCA and its Amendment by reference into 9 the Complaint. Like a request for judicial notice, the incorporation-by-reference doctrine 10 allows a party to rely on a document outside of the pleadings. “[I]ncorporation-by- 11 reference is a judicially created doctrine that treats certain documents as though they are 12 part of the complaint itself. The doctrine prevents plaintiffs from selecting only portions of 13 documents that support their claims, while omitting portions of those very documents that 14 weaken—or doom—their claims.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 15 1002 (9th Cir. 2018). In Khoja, the Ninth Circuit acknowledged that there are “rare 16 instances when assessing the sufficiency of a claim requires that the document at issue be 17 reviewed, even at the pleading stage.” Id. Some materials not expressly cited in the 18 complaint can be incorporated, because “the claim necessarily depend[s] on them.” Id. 19 (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)). However, documents that 20 the court may consider under the incorporation-by-reference doctrine still must be 21 authenticated. See Gustafson v. Experian Info. Sols. Inc., No. 2:14-CV-01453-ODW EX, 22 2014 WL 2115210, at *3 (C.D. Cal. May 21, 2014) (“[E]ven if the Court may consider [the 23 plaintiff’s] credit report under the incorporation-by-reference doctrine, [the defendant] 24 wholly failed to authenticate it.”). 25 Although the CCA and its Amendment are not expressly referenced in the 26 Complaint, the Court recognizes that the purported CCA could be central to Plaintiff’s 27 claims. For example, the Complaint insinuates that Plaintiff previously consented to 28 Defendant’s communications when it states Plaintiff “had revoked any prior express 1 consent Defendant may have believed it had to robo-dial Plaintiff.” (Compl. ¶ 21.) 2 Similarly, the Complaint alleges, “Plaintiff owed a debt to [Defendant],” indicating there 3 was a contractual relationship between the parties. (Id. ¶ 8.) Therefore, the incorporation- 4 by-reference doctrine could apply. With that being said, the CCA lacks authentication, so 5 relying on incorporation-by-reference would be improper. See Gustafson, 2014 WL 6 2115210, at *3. 7 In the interest of judicial efficiency, the Court will nonetheless consider the 8 substance of Defendant’s arguments concerning the TCPA and the alleged revocation of 9 consent. 10 B. Motion to Dismiss 11 Even if the Court could consider the CCA and its Amendment, the validity of 12 Plaintiff’s revocation is a question of fact more apt for the summary judgment stage. On 13 the face of the pleadings, even when considering the CCA and its Amendment, the Court 14 finds that Plaintiff plausibly states a claim. 15 To establish a TCPA claim, Plaintiff must allege three elements: (1) Defendant 16 called a cellular telephone number; (2) Defendant used an automatic telephone dialing 17 system or a prerecorded voice to deliver a message; and (3) Defendant did not have the 18 prior consent of Plaintiff. See 47 U.S.C. § 227(b)(1)(A); Meyer v. Portfolio Recovery 19 Assocs., LLC, 707 F.3d 1036, 1042–43 (9th Cir. 2012). Here, Defendant argues Plaintiff 20 fails to plausibly allege the third element. (Mot. 3.) Defendant claims that Plaintiff’s initial 21 consent was still effective at the time of the calls because she did not revoke her consent in 22 the agreed-upon manner. (Id.) But Defendant’s argument is premature. 23 Even if the Court determined that consent revocation contract provisions did not 24 contravene the TCPA, there are too many factual questions to dismiss the dispute at this 25 stage. Indeed, it is unclear whether the Amendment to the CCA is enforceable under 26 common law contract doctrine. For instance, the Court may find after discovery that the 27 Amendment is an invalid unilateral modification of the original contract without 28 consideration. Further, it is not clear whether Plaintiff received the Amendment, whether 1 there are other relevant amendments to the CCA, whether Plaintiff’s method of revocation 2 was reasonable, and whether Defendant received Plaintiff’s revocation. All of these 3 ambiguities require factual exposition and cannot be resolved at the pleadings stage. 4 In support of its position, Defendant cites two out-of-circuit district court cases: 5 Thompson-Harbach v. USAA Fed. Sav. Bank, 359 F. Supp. 3d 606, 628 (N.D. Iowa 2019), 6 and Barton v. Credit One Fin., No. 16CV2652, 2018 WL 2012876, at *4 (N.D. Ohio Apr. 7 30, 2018). (Mot. 6.) But these cases are inapposite in two ways. First, both courts 8 considered a motion for summary judgment, not a motion to dismiss. As a result, many of 9 the factual issues listed above had been explored in discovery. Second, in each case, the 10 plaintiff’s method of revocation was far afield from the method in the contract’s revocation 11 provision. The plaintiffs orally asked the banks to stop calling, when the contract provisions 12 stipulated that the revocation must be in writing or online. Thompson-Harbach, 359 F. 13 Supp. 3d at 627 (online); Barton, 2018 WL 2012876, at *3 (in writing). By contrast, here, 14 the contractual method of revocation seems to be very similar to the actual method of 15 revocation. The Amendment states that Plaintiff must mail written revocation to a specific 16 PO box and must include certain information. (Ex. 2 at 9 to RJN.) Plaintiff allegedly 17 included the specified information but faxed the written revocation rather than mailing it. 18 (Compl. ¶ 11.) 19 In sum, there are several key factual ambiguities that cannot be resolved at the 20 pleadings stage. As a result, assuming the validity of the CCA and its Amendment requires 21 the Court to draw inferences in favor of Defendant, offending the Rule 12(b)(6) standard. 22 From the pleadings, even including the CCA and its Amendment, the Court can plausibly 23 infer Plaintiff validly revoked her consent to be called. Her written revocation included her 24 full name, address, and last four digits of her social security number, and she sent this 25 information to “multiple fax numbers belonging to Defendant.” (Id.) Thus, the Court finds 26 Plaintiff plausibly states a TCPA claim. 27 28 I IV. CONCLUSION 2 For the reasons stated above, the Court DENIES the Request for Judicial Notice and 3 || DENIES the Motion to Dismiss (ECF No. 13.) 4 IT IS SO ORDERED. 5 A , 6 || DATED: April 13, 2023 Ypilag (Lyohaa é 7 United States District Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28