McCurley v. Royal Seas Cruises, Inc.

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE SOUTHERN DISTRICT OF CALIFORNIA 10 JOHN MCCURLEY and DAN Case No. 17-cv-00986-BAS-AGS 11 DEFOREST, individually and on behalf of all others similarly situated, ORDER: 12 Plaintiffs, (1) GRANTING DEFENDANT’S 13 AMENDED MOTION FOR v. SUMMARY JUDGMENT 14 (ECF No. 165); ROYAL SEA CRUISES, INC., 15 AND Defendant. 16 (2) DENYING PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT 17 (ECF No. 160) 18 19 Plaintiffs bring a Motion for Summary Judgment (“Plaintiffs’ MSJ”) (ECF No. 20 160), which Defendant opposes (ECF No. 176) and Plaintiffs reply (ECF No. 181). 21 Defendant brings an Amended Motion for Summary Judgment (“Defendant’s MSJ”) (ECF 22 No. 165), which Plaintiffs oppose (ECF No. 175) and Defendant replies (ECF No. 183). 23 The Court held oral argument on both motions on January 27, 2021. Based on the papers 24 filed and the oral arguments of the parties, the Court GRANTS Defendant’s Motion (ECF 25 No. 165) and DENIES Plaintiffs’ Motion. (ECF No. 160). 26 I. BACKGROUND 27 Plaintiffs filed a Consolidated Class Action Complaint against Royal Seas Cruises, 28 Inc. (“Royal Seas”) alleging violations of the Telephone Consumer Protection Act 1 (“TCPA”), 47 U.S.C. §§227 et seq. and California’s Invasion of Privacy Act (“CIPA”), 2 Cal. Penal Code §§ 630 et seq. (ECF No. 31.) The Court certified a class with respect to 3 the TCPA only of: 4 All persons within the United States who received a telephone call (1) from 5 Prospects, DM, Inc. on behalf of Royal Seas Cruises, Inc. (2) on said Class Member’s cellular telephone (3) made through the use of any automatic 6 telephone dialing system or an artificial or prerecorded voice, (4) between 7 November 2016 and December 2017, (5) where such calls were placed for the purpose of marketing, (6) to non-customers of Royal Seas Cruises, Inc. at the 8 time of the calls, and (7) whose cellular telephone number is associated in 9 Prospects DM’s records with either diabeteshealth.info or www.yourautohealthlifeinsurance.com. 10 11 The Court also certified a Transfer Subclass of “[a]ll members of the Class whose call 12 resulted in a transfer to Royal Seas Cruises, Inc.” (ECF No. 87.) At Plaintiffs’ request, 13 the Court later decertified the class in part and allowed Plaintiffs to proceed solely on the 14 Transfer Subclass. (ECF No. 191.) 15 Both Plaintiffs and Defendant now bring Motions for Summary Judgment. (ECF 16 Nos. 160, 165.) Both Motions address three of the same issues: (1) whether proof exists 17 that the calls were made using an automatic telephone dialing system (“ATDS”) or 18 prerecorded voice; (2) whether Royal Seas Cruises Inc. (“Royal Seas”) can be held 19 vicariously liable for the calls placed by Prospect DM (“Prospect”); and (3) whether Royal 20 Seas has any evidence to support its defense that the calls were made with the express 21 consent of all class members. 22 Defendant’s Motion for Summary Judgment also challenges the TCPA as a 23 violation of the constitutional right to free speech and moves for summary judgment on 24 the CIPA claims. These last two arguments can be dispensed with quickly. Since 25 Plaintiffs do not respond to Defendant’s Motion for Summary Judgment on the CIPA 26 claims,1 the Court concludes Plaintiffs have waived this claim and GRANTS Defendant’s 27

28 1 Motion for Summary Judgment on this ground. See Hurd v. Terhune, 8 Fed. App’x 676, 2 677 (9th Cir. 2001) (finding plaintiff waived a claim “by failing to delineate it specifically 3 and explicitly in his opposition to defendant’s motion for summary judgment”) (citing 4 Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir. 1992)). 5 On the other hand, the Ninth Circuit has clearly held that the TCPA does not violate 6 the First Amendment. Gomez v. Campbell-Ewald Co., 768 F.3d 871, 876 (9th Cir. 2014) 7 (citing Moser v. FCC, 46 F.3d 970, 973-4 (9th Cir. 1995)), aff’d 577 U.S. 153 (2016) as 8 revised (Feb. 9, 2016). Therefore, the Court denies Defendant’s Motion on this ground. 9 The remaining three issues, however, require greater analysis. Ultimately, for the 10 reasons stated below, the Court concludes Plaintiffs fail to elicit any facts supporting their 11 theory of vicarious liability. Thus, the Court denies Plaintiff’s Motion (ECF No. 160) and 12 grants Defendant’s Motion (ECF No. 165). 13 II. STATEMENT OF FACTS 14 The Court laid out the facts of this case in its Order Granting in Part Class 15 Certification. (ECF No. 87.) Since the facts generally remain the same, the Court adopts 16 its Statement of Facts from that order. 17 Generally, Royal Seas sells vacation packages by calling potential leads. (Joint 18 Statement of Undisputed Facts (“JSUF”) ¶ 1, ECF No. 184; Declaration of Jennifer Poole 19 (“Poole Decl.”) ¶ 4, Ex. 5 to Def.’s MSJ, ECF No. 165-6.) In November 2016, Prospect 20 and Royal Seas entered into an agreement under which Royal Seas purchased leads from 21 Prospect for possible purchasers of the Royal Seas vacation packages. (JSUF ¶¶ 3–4; 22 Declaration of Joshua Grant (“Grant Decl.”) ¶ 7, Ex. 6 to Def.’s MSJ, ECF No. 165-7.) 23 The contract between the two parties delineated that Royal Seas would only pay for leads 24 that were “generated in a TCPA-compliant manner.” (Grant Decl. ¶ 7.) 25 According to Joshua Grant, the President of Prospect, a “real human being” from 26 Prospect would call the telephone number to inquire whether the individual being called 27 wants to hear more about the offer from Royal Seas. (Grant Decl. ¶ 12.) If so, then the 28 Prospect employee would “live transfer” the call to a representative at Royal Seas. (Id.; 1 Poole Decl. ¶ 5.) The “live human being” who placed the call from Prospect had “pre- 2 scripted voice prompts” allowing the human being to use the computer to make the initial 3 approach to the potential customer. (Deposition of Jennifer Poole (“Poole Dep.”) 25:12- 4 17, Ex. 4 to Def.’s MSJ, ECF No. 165-5; Deposition of Joshua Grant (“Grant Dep.”) 167– 5 173, Ex. 3 to Def.’s MSJ, ECF No. 165-4.) If the agent clicked the voice prompt, the 6 prompt played. (Grant Dep. 168–171.) However, there was always a live agent on the 7 calls. (Grant Dep. 225–227.) Some of the agents opted to use their own voices instead of 8 the voice prompts. (Grant Dep. 227.) 9 Prospect used multiple third-party call centers to actually make the calls. (Grant 10 Dep. 121–125.) When a Prospect agent was logged into the phone system and was ready 11 to accept a call, he or she would hit a button and receive the call generated by the third- 12 party dialer. (Grant Dep. 177.) There is no information in the record about how this third- 13 party dialer placed the call. 14 Prospect received the leads from third-party web publishers. (Grant Dep. 133.) The 15 web publisher would send the data about the telephone numbers through an application 16 programming interface (“API”) into the Prospect data base. (Grant Dep. 134.) These web 17 publishers were required to ensure that the telephone numbers being called had opted in 18 to receiving the telephone call. (Grant Dep. 149–154.) Typically, the web publishers 19 would give Prospect all the opt-in data when Prospect purchased the leads from them. 20 (Grant Dep. 433–434.) Similarly, Prospect sent all opt-in data for each lead transferred to 21 Royal Seas via API at the time the customer was live transferred. (Poole Decl. ¶ 8.) 22 Prospect also checked by reviewing the website and the opt-in language and by 23 verifying that their company name was in the opt-in language. (Grant Dep. 433–434.) 24 Prospect employs TCPA attorneys and investigates any complaint about a violation of the 25 TCPA. (Grant Dep. 161.) Prospect kept its own Do Not Call list, which was uploaded 26 directly into the Prospect system bypassing the third-party dialer. (Grant Dep. 281–282.) 27 This upload blocked the call from being made to anyone on the Do No Call list. (Id.) 28 1 Royal Seas received an opt-in for class representative John McCurley from the 2 website www.diabeteshealth.info, which is a domain owned by Landfall Data, LLC 3 (“Landfall”). Kevin Brody is the CEO of Landfall. (Declaration of Kevin Brody (“Brody 4 Decl.”) ¶¶ 2, 8, Ex. 7 to Def.’s MSJ, ECF No. 165-8.) According to Brody, every lead 5 provided by Landfall was created by a user visiting the website landing page and 6 completing the appropriate form. (Brody Decl. ¶ 10.) The individual must complete a 7 form by entering his or her name, email address, and telephone number and by checking 8 a box consenting to be called. (Brody Decl. ¶12.) The individual must then hit “NEXT” 9 to process the opt-in. (Id.) Brody provides a copy of the opt-in form allegedly created by 10 John McCurley’s telephone number on April 30, 2017. (Brody Decl. ¶ 13.) 11 There is some confusion as to the website that provided the opt-in for class 12 representative Daniel Deforest. Although the information provided by Royal Seas was 13 that Mr. Deforest’s opt-in came from the website domain www. 14 myhealthcareauthority.com, Prospect indicates the correct website for Mr. Deforest’s opt- 15 in was www.yourautohealthlifeinsurance.com. (Grant Decl. ¶ 30.) 16 The website myhealthcareauthority.com is owned by Citadel Marketing Group, 17 LLC f/d/a Transparent Data Services (“Citadel”). (Declaration of David Andras (“Andras 18 Decl.”) ¶ 3, Ex. 8 to Def.’s MSJ, ECF No. 165-9.) David Andras is the owner of Citadel. 19 (Andras Decl. ¶ 2.) Any lead provided by Citadel was generated by an individual who 20 visited its website and filled out a form including contact information, telephone number 21 and consent to be called. (Andras Decl. ¶ 6.) All the information must be filled out, the 22 consent box must be checked, and the user must click “submit” or the contact information 23 would not be stored. (Andras Decl. ¶ 12.) 24 Neither party offers information about the ownership or practices of 25 www.yourautohealthlifeinsurance.com, which is the website at issue in the certified class. 26 Plaintiffs offer two experts (Nathan Bacon and Wesley Weeks) who claim the websites 27 www.diabeteshealth.info and www.myhealthcareauthority.com could not have generated 28 the opt-in information or traffic that they claim to have generated. (Expert Report of 1 Nathan Bacon (“Bacon Report”), Ex. C to Pls.’ Mot. for Class Certification, ECF No. 151- 2 4; Expert Report of Wesley Weeks (“Weeks’ Report”), Ex. D to Mot. to Exclude, ECF 3 No. 164-5.)2 4 Prospect did not own or control the websites. (Grant Dep. 938.) Prospect did not 5 give the name of the third-party website publishers to Royal Seas because that ran the risk 6 that Royal Seas would cut Prospect out and go directly to the third-party web publishers 7 for leads. (Id. 945.) Neither David Andras and Citadel, nor Kevin Brody and Landfall, 8 had any contact with Royal Seas. (Andras Decl. ¶ 15; Brody Decl. ¶ 4.) However, when 9 Royal Seas first entered into a contract with Prospect, Royal Seas looked at several sample 10 sites provided by Prospect to make sure the opt-in language was sufficient. (Poole Dep. 11 14:13–15:19.) 12 Class representative John McCurley received multiple calls on his cell phone—from 13 what turned out to be Prospect—in which a pre-recorded voice asked three questions: (1) 14 whether he was at least 21 years old; (2) whether he could travel within the next 18 months; 15 and (3) whether he had a major credit card. (Declaration of John McCurley (“McCurley 16 Decl.”) ¶¶ 4–5, ECF No. 49-6.) When he answered yes, he was then connected to a live 17 person who asked whether he was interested in a cruise. (McCurley Decl. ¶ 6.) Although 18 the opt-in documentation for McCurley’s telephone said that someone named Jose 19 Fernandez in Concord, CA had consented to receive calls when visiting the 20 www.diabeteshealth.info website, McCurley has never visited this website, never used the 21 name “Jose Fernandez,” nor has he ever lived in Concord, CA. (McCurley Decl. ¶¶ 11– 22 15, 17–25.) McCurley never consented to having his cell phone called by Prospect or 23 Royal Seas. (McCurley Decl. ¶ 6.) 24 Similarly, class representative Dan Deforest received a call from what turned out to 25 be Prospect on his cell phone with a prerecorded voice message, which eventually 26

27 2 Defendant moves to exclude the testimony of Mr. Bacon and Mr. Weeks. (ECF Nos. 151, 164.) Since the Court does not rely on the opinion of either expert to formulate this opinion, the Motions will 28 1 connected him to a live agent from Prospect who transferred him to a live person at Royal 2 Seas. (Declaration of Dan Deforest (“Deforest Decl.”) ¶ 3, ECF No. 49-7.) Although the 3 opt-in documentation for Deforest’s telephone said he consented to the call while visiting 4 www.myhealthauthority.com, he had never visited this website. (Id. ¶ 8.) He also never 5 consented to having his cell phone called by Prospect or Royal Seas. (Id. ¶ 6.) And his 6 browsing history reflects that he did not visit the website www.yourauto 7 healthlifeinsurance.com at the time in question. (Ex. A to Declaration of Thomas E. 8 Wheeler, ECF No. 77-1.) 9 III. ANALYSIS 10 A. Standard 11 Summary Judgment is appropriate under Rule 56(c) when the moving party 12 demonstrates the absence of a genuine issue of material fact and entitlement to judgment 13 as a matter of law. See Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 14 (1986). A fact is material when, under the governing substantive law, it could affect the 15 outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute 16 about a material fact is genuine if “the evidence is such that a reasonable jury could return 17 a verdict for the nonmoving party.” Id. 18 A party seeking summary judgment always bears the initial burden of establishing 19 the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The moving 20 party can satisfy this burden in two ways: (1) by presenting evidence that negates an 21 essential element of the nonmoving party’s case; or (2) by demonstrating that the 22 nonmoving party failed to make a showing sufficient to establish an element essential to 23 that party’s case on which that party will bear the burden of proof at trial. Id. at 322–23. 24 “Disputes over irrelevant or unnecessary facts will not preclude a grant of summary 25 judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th 26 Cir. 1987). 27 “The district court may limit its review to documents submitted for the purpose of 28 summary judgment and those parts of the record specifically referenced therein.” Carmen 1 v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001). The court is not 2 obligated “to scour the record in search of a genuine issue of triable fact.” Keenan v. Allan, 3 91 F.3d 1275, 1279 (9th Cir. 1996) (citing Richards v. Combined Ins. Co. of Am., 55 F.3d 4 247, 251 (7th Cir. 1995)). If the moving party fails to discharge this initial burden, 5 summary judgment must be denied and the court need not consider the nonmoving party’s 6 evidence. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159–60 (1970). 7 If the moving party meets this initial burden, the nonmoving party cannot defeat 8 summary judgment merely by demonstrating “that there is some metaphysical doubt as to 9 the material facts.” Matsushita Electric Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 10 574, 586 (1986); Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995) 11 (citing Anderson, 477 U.S. at 242, 252) (“The mere existence of a scintilla of evidence in 12 support of the nonmoving party’s position is not sufficient.”). Rather, the nonmoving 13 party must “go beyond the pleadings” and by “the depositions, answers to interrogatories, 14 and admissions on file,” designate “specific facts showing that there is a genuine issue for 15 trial.” Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e)). 16 When making this determination, the court must view all inferences drawn from the 17 underlying facts in the light most favorable to the nonmoving party. See Matsushita, 475 18 U.S. at 587. “Credibility determinations, the weighing of the evidence, and the drawing 19 of legitimate inferences from the facts are jury functions, not those of a judge, [when] he 20 [or she] is ruling on a motion for summary judgment.” Anderson, 477 U.S. at 255. 21 B. TCPA 22 The TCPA makes it unlawful “to make any call (other than a call made for 23 emergency purposes or made with the prior express consent of the called party) using any 24 automatic telephone dialing system or an artificial or prerecorded voice . . . to any 25 telephone number assigned to a . . . cellular telephone service[.]” 47 U.S.C. § 26 227(b)(1)(A)(iii). The TCPA defines an ATDS as “equipment which has the capacity (a) 27 to store or produce telephone numbers to be called, using a random or sequential number 28 generator; and (b) to dial such numbers.” Id. § 227(a)(1). 1 The Federal Communications Commission (“FCC”) possesses authority to issue 2 implementing rules and regulations for the TCPA. 47 U.S.C. § 227(b)(2). The FCC has 3 promulgated a comprehensive set of rules governing telemarketing and telephone 4 solicitation calls, which require “prior express written consent” for such calls. See 47 5 C.F.R. § 64.1200(a)(1), (2). “Telemarketing” means “the initiation of a telephone call or 6 message for the purpose of encouraging the purchase or rental of, or investment in, 7 property, goods, or services, which is transmitted to any person.” Id. § 64.1200(f)(12). 8 “Prior express written consent” means “an agreement, in writing, bearing the signature of 9 the person called that clearly authorizes the seller to deliver or cause to be delivered to the 10 person called advertisements or telemarketing messages using an automatic telephone 11 dialing system or an artificial or prerecorded voice, and the telephone number to which 12 the signatory authorizes such advertisements or telemarketing messages to be delivered.” 13 Id. § 64.1200(f)(8). A “signature” may include “an electronic or digital form of signature, 14 to the extent that such form of signature is recognized as a valid signature under applicable 15 federal law or state contract law.” Id. § 64.1200(f)(8)(ii). 16 1. Use of ATDS or Prerecorded Voice 17 In determining whether a call was made using an ATDS, the “focus should be on 18 whether the equipment has the capacity” to be used as an ATDS, even if it does not actually 19 function as an ATDS. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 951 (9th Cir. 20 2009). “[T]he term [ATDS] means equipment which has the capacity—(1) to store 21 numbers to be called or (2) to produce numbers to be called, using a random or sequential 22 number generator—and to dial such numbers.” Marks v. Crunch San Diego, LLC, 904 23 F.3d 1041, 1052 (9th Cir. 2018). 24 When determining whether the equipment has the capacity to act as an ATDS, 25 courts must ask, “‘[H]ow much is required to enable the device to function as an 26 autodialer?’ In other words, ‘does the equipment require the simple flipping of a switch, 27 or does it require essentially a top-to-bottom reconstruction of the equipment?’” Meier v. 28 Allied Interstate, LLC, No. 18-cv-1562-GPC-BGS, 2020 WL 819014, at *8 (S.D. Cal. Feb. 1 19, 2020) (quoting ACA Int’l v. Fed. Communications Comm’n, 885 F.3d 687, 696 (D.C. 2 Cir. 2018)). 3 This does not mean that the equipment must operate without any human 4 intervention whatsoever. Id. “Common sense indicates that human intervention of some 5 sort is required before an autodialer can begin making calls, whether turning the machine 6 on or initiating its functions.” Marks, 914 F.3d at 1052–53. “In addition, ‘the test for 7 human involvement looks to the time a call or message is sent or dialed, not what might 8 have happened earlier to enter the phone number into the system.’” Meier, 2020 WL 9 819014, at *6 (quoting Washington v. Six Continents Hotels, Inc., No. 216-cv-03719- 10 ODW, 2018 WL 4092024, at *5 (C.D. Cal. Aug. 24, 2018)). 11 Thus, in Meier, the district court held that a system requiring the intervention of 12 human “clicker agents” to dial was not an ATDS. 2020 WL 819014, at *6. “Though a 13 single click on a computer screen ‘may seem too minimal’ an act of human intervention, 14 it is not in aggregate.’” Id. (quoting Collins v. Nat’l Student Loan Program, 360 F. Supp. 15 3d 268, 273 (D.N.J. 2018)). 16 In this case, there is no evidence offered by the Plaintiffs as to how the calls were 17 placed or what the capacity was of the equipment making these calls. The calls were 18 placed by a third-party call center, but what type of equipment was used to place the call, 19 and whether the calls were placed by hand from a master list or from a system that used a 20 random or sequential number generator, is uncertain. However, Plaintiffs argue that they 21 system described by Grant is an ATDS: the system automatically places the call when the 22 agent is ready. Missing, however, is what the third-party dialer was required to do to place 23 the call before it was transferred to the Prospect agent. There is simply no evidence as to 24 whether an ATDS was or was not used. 25 However, there is clear evidence that an artificial or prerecorded voice was used on 26 some occasions, but not every occasion. (Grant Dep. 41:167–42:168, 51:225.) 27 Additionally, a “live human being” was always present even when a prerecorded voice 28 was used. Although use of a prerecorded voice in this fashion may be sufficient to qualify 1 as a violation of the TCPA, Plaintiffs now face problems with their certified class, since 2 they now face individual inquiry issues as to which calls made to the class were made 3 using a prerecorded voice and which were made without. However, as discussed below, 4 the Court need not reach this issue because it finds that Plaintiffs fail to establish that Royal 5 Seas is vicariously liable for the acts of Prospect and, indirectly, the claimed malfeasance 6 by the third-party web sites. 7 2. Vicarious Liability of Royal Seas for Calls Placed by Prospect 8 It is undisputed that none of the calls at issue were placed by Royal Seas. (JSUF ¶ 9 2.) For Royal Seas to be liable for the calls placed by Prospect, Plaintiff must show that 10 there is an agency relationship between Prospect and Royal Seas and that Prospect had 11 actual authority, apparent authority, or ratified the calls made in alleged violation of the 12 TCPA. See Henderson v. United Student Aid Funds, Inc., 918 F.3d 1068, 1072 (9th Cir. 13 2019); Kristensen v. Credit Payment Services, 879 F.3d 1010, 1014 (9th Cir. 2018) 14 (adopting FCC rule that “calls placed by an agent of the telemarketer are treated as if the 15 telemarketer itself placed the call”); Gomez v. Campbell-Ewald Co., 768 F.3d at 879. 16 Plaintiff has the burden of establishing that an agency relationship exists. Henderson, 918 17 F.3d at 1073. 18 Any claim of actual authority in this case is belied by the express language in the 19 contract between Royal Seas and Prospect requiring that any leads be from individuals 20 who had consented to be called. See Jones v. Royal Admin. Svcs., Inc., 887 F.3d 443, 446 21 (9th Cir. 2018). (“Any claim that [Defendant] had actual authority to place the calls is 22 precluded by the express language in [Defendant’s] contract . . . expressly prohibiting 23 telemarketing methods that would violate state or federal law, including laws governing 24 robocalls.”) 25 “‘Apparent authority is the power held by an agent, or other actor, to affect a 26 principal’s legal relations with third parties when a third party reasonably believes the 27 actor has authority to act on behalf of the principal and that belief is traceable to the 28 principal’s manifestation.’” Makaron v. GE Sec. Mfg., Inc., No. CV-14-1274, 2015 WL 1 3526253, at *8 (C.D. Cal. May 18, 2015) (quoting Restatement (Third) of Agency § 2.03 2 (2006)). Critical to the analysis of “apparent authority” is “‘proof of something said or 3 done by the alleged principal, on which the plaintiff reasonably relied.’” Thomas v. Taco 4 Bell Corp., 582 Fed. Appx. 678, 679 (9th Cir. 2014) (quoting NLRB v. Dist. Council of 5 Iron Workers of Cal, & Vicinity, 124 F.3d 1094, 1099 (9th Cir. 1997)); Restatement 6 (Third) of Agency § 2.03 (2006) (third party’s belief must not only be reasonable but 7 “traceable” to the principal’s manifestations). “[T]he ostensible authority of an agent 8 cannot be based solely on the agent’s conduct.” C.A.R. Transp. Brokerage Co. Inc. v. 9 Darden Restaurants, Inc., 213 F.3d 474, 480 (9th Cir. 2000). Here, the only arguable 10 manifestation by Royal Seas is Royal Seas’ contract with Prospect allowing it to approve 11 the prerecorded scripts used by Prospect. This demonstrates Royal Seas’ knowledge that 12 prerecorded scripts would be used, but it provides no evidence that Royal Seas had any 13 reason to believe the individuals Prospect called with those prerecorded scripts had not 14 agreed to this contact by entering their names in a third-party website. These are the 15 consenting callers Prospect agreed by contract to transfer to Royal Seas, and these are the 16 consenting callers Royal Seas had every reason to believe were being transferred to them. 17 Plaintiffs’ main argument is that Royal Seas should be held liable under the agency 18 theory of “ratification.” (Pls.’ MSJ at 18.) “‘Ratification is the affirmance of a prior act 19 done by another, whereby the act is given effect as if done by an agent acting with actual 20 authority.’” Id. (quoting Restatement (Third) of Agency § 4.01). “To constitute 21 ratification . . . a principal need not explicitly communicate consent to an agent.” Id. at 22 1074. The ratification can be achieved simply by rewarding or congratulating the agent’s 23 behavior or failing to object or repudiate the action. Id. “The focal point . . . is an 24 observable indication that a principal has exercised an explicit or implicit choice to consent 25 to the purported agent’s acts.” Id. 26 There are two ways to prove ratification: (1) actual knowledge and (2) willful 27 ignorance. Under “actual knowledge,” a principal can be liable under ratification if it 28 knowingly accepts the benefit of the act. Henderson, 918 F.3d at 1073. The plaintiff must 1 point to evidence that the principal had knowledge of the act, exercised choice, and 2 consented to the acts committed by the agent. Id. Under a willful ignorance theory, a 3 principal assumes the risk of lack of knowledge when the plaintiff shows that the principal 4 “had knowledge of facts that would have led a reasonable person to investigate further but 5 ratified [the principal’s] acts anyway without investigation.” Kristensen, 879 F.3d at 1015. 6 There is no evidence that Royal Seas had actual knowledge that the calls Prospect 7 made were placed without actually receiving an opt-in from the person being called. In 8 fact, Prospect and the third-party websites maintain to this day—not only to Royal Seas 9 but also to the Court—that all calls were made only after receiving consent from the person 10 being called. Plaintiffs point to no evidence that Royal Seas had knowledge of any TCPA 11 violation. 12 Instead, Plaintiffs argue that there is evidence that Royal Seas willfully ignored the 13 violations because it had knowledge of facts that would have led a reasonable entity to 14 investigate further. Specifically, Plaintiffs argue that Royal Seas should have known to 15 investigate because: (1) Royal Seas did nothing to verify that Prospect was following the 16 TCPA as it contracted to do; (2) cruise lines have been subject to approximately 100 TCPA 17 actions in the past; and (3) the fact that so few people actually purchased the cruises after 18 transfer should have alerted Royal Seas to the fact that not everyone consented to be called. 19 What is noticeably missing from Plaintiffs argument is that Royal Seas ever received 20 information from any of the individuals who were transferred that they had not consented 21 to be called. Simply the lack of verification is insufficient. Royal Seas specifically 22 contracted with Prospect for leads that had consented to be called. Royal Seas also looked 23 at a sampling of the websites to make sure the opt-in language was sufficient. In the 24 absence of any evidence that this opt-in language was not being used or that Prospect was 25 not conducting itself as it contracted to do, Plaintiffs simply cannot prove that Royal Seas 26 ratified any violation by willful ignorance. 27 Additionally, the fact that numerous cruise companies have been sued for TCPA 28 violations explains why Royal Seas was careful to include language requiring adherence 1 the TCPA in its contract with Prospect and why it required Prospect to show it how the 2 |{opt-in language would look so its attorneys could approve. This alone does not 3 ||demonstrate that Royal Seas was on notice that Prospect was violating the law. 4 Finally, the fact that a small number of those contacted actually bought cruises is 5 helpful. There are any number of reasons why someone who agreed to be contacted 6 ||about a cruise might ultimately decide not to purchase. In the absence of evidence that 7 ||Royal Seas received any complaints about the calls, it is not reasonable to conclude that 8 ||Royal Seas had some notice that the reason for the low rate of conversion was because 9 ||these people had not consented to be called. 10 Since Plaintiffs provide no evidence to support their theory of vicarious liability, 11 Court will GRANT Royal Seas’ Motion for Summary Judgment on this ground 12 3. Consent to be Called 13 Because the Court finds no vicarious liability for Royal Seas, this last issue is moot. 14 ||However, the Court notes that the Declarations of McCurley and Deforest explicitly 15 stating that they did not consent to be called, nor had ever visited the websites at issue, 16 an issue of fact for the jury to determine, at least with respect to the named Plaintiffs. 17 CONCLUSION 18 Because the calls at issue were placed by a third-party caller at the behest of 19 || Prospect, not Royal Seas, and because Royal Seas has no evidence that would support its 20 ||theory that Royal Seas is vicariously liable for the calls placed by Prospect, the Court 21 ||GRANTS Defendant’s Amended Motion for Summary Judgment (ECF No. 165) and 22 DENIES Plaintiff's Motion for Summary Judgment (ECF No. 160). In light of this 23 ||decision, the Court finds the remaining motions (ECF Nos. 151, 159, 163 and 164) are all 24 ||MOOT. The clerk is directed to enter a judgment in favor of Defendant and against 25 Plaintiffs and to close the case. 26 IT IS SO ORDERED. 27 , fl 28 DATED: January 28, 2021 Cif yu li Hohe □ United States bistrict Judge