Wilson v. Rater8, LLC

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ROBERT WILSON, Case No.: 20-cv-1515-DMS-LL

12 Plaintiff, ORDER GRANTING MOTION TO 13 v. DISMISS 14 RATER8, LLC, a Delaware Limited Liability Company; SAN DIEGO 15 ORTHOPAEDIC ASSOCIATES 16 MEDICAL GROUP, a California Corporation; MANEESH BAWA, M.D., 17 an individual; LARRY D. DODGE, M.D., 18 INC., a California Corporation; LARRY D. DODGE, M.D., an individual, 19 Defendants. 20

21 22 Pending before the Court is Defendants’ motion to dismiss. Plaintiff filed an 23 opposition and Defendants filed a reply. The matter is fully briefed and submitted. 24 I. 25 BACKGROUND 26 A. Procedural History 27 Plaintiff filed this class action on August 6, 2020, alleging Defendants violated the 28 Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq., and Unfair 1 Competition Law (“UCL”), California Business & Professions Code § 17200. (ECF No. 1, 2 Compl. ¶¶ 1–2, 33–53.) On November 4, 2020, Plaintiff filed a First Amended Complaint 3 (“FAC”). (ECF No. 12, FAC.) In the FAC, Plaintiff asserts the same UCL and TCPA 4 claims along with an additional state law claim for violations of the Confidentiality of 5 Medical Information Act, Civil Code § 56, et seq. (“CMIA”). (Id. ¶¶ 1–2, 64–105.) 6 Plaintiff also named Maneesh Bawa, M.D. and Larry D. Dodge, M.D. as additional 7 defendants. (Id. ¶¶ 2, 8, 10.) 8 On October 27, 2020, Defendants filed a motion to stay proceedings pending the 9 Supreme Court’s decision in Facebook v. Duguid, 141 S. Ct. 1163 (2021). (ECF No. 11.) 10 On February 2, 2021, the Court granted the requested stay. (ECF No. 21.) On April 14, 11 2021, Defendants filed a notice of decision informing the Court that the Supreme Court 12 issued its decision in Duguid. (ECF No. 22.) Defendants filed the instant motion to dismiss 13 on July 16, 2021, (ECF No. 25), and thereafter Plaintiff filed an opposition, (ECF No. 27), 14 and Defendants filed their reply.1 (ECF No. 29.) 15 B. Factual Allegations 16 Plaintiff alleges he visited Dr. Larry Dodge on June 23, 2020, for an independent 17 medical examination. (FAC ¶¶ 30, 32.) Plaintiff underwent the examination pursuant to a 18 demand by the insurance carrier of a non-party to this action with whom Plaintiff was 19 involved in separate litigation arising out of an automobile accident. (Id. ¶ 32.) At 20 approximately 3:25 p.m. that day, Plaintiff received a text message from the number 21 989-75, which stated: “Hello, you recently visited Larry Dodge. Please provide your rating: 22 https://x.rater8.com/umg3sy. To unsubscribe: https://x.rater8.com/ujhrq7.” (Id. ¶¶ 30, 39.) 23 Plaintiff received the text message minutes after undergoing his medical examination. (Id. 24 ¶ 32.) Plaintiff alleges rater8 is a company that contracts with Defendants to provide 25 “Patient Satisfaction Surveys whereby upon checkout, patients immediately receive a text 26

27 1 Plaintiff also filed a statement of new decision, (ECF No. 30), as did Defendants, who 28 1 or email requesting feedback about their visit.” (Id. ¶¶ 35–36 (quotation marks omitted).) 2 Plaintiff further alleges that rater8’s computer system “utilizes its clients’ computer 3 practice management systems to send [rater8] an HL7 file containing the patient’s 4 appointment information so that [rater8] can process it in order for [rater8] to send text 5 messages.”2 (Id. ¶ 49.) Plaintiff alleges Defendants sent electronic files including 6 Plaintiff’s name, cell phone number, physician name, appointment information, discharge 7 date, and discharge time to rater8 through their computer practice management systems. 8 (Id. ¶¶ 51–52.) Plaintiff alleges the text “was sent by an [Automatic Telephone Dialing 9 System (“ATDS”)] within the definition of the TCPA.” (Id. ¶¶ 43, 67.) 10 II. 11 LEGAL STANDARD 12 A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil 13 Procedure tests the legal sufficiency of the claims asserted in the complaint. See Fed. R. 14 Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). In deciding a motion 15 to dismiss, all material factual allegations of the complaint are accepted as true, as well as 16 all reasonable inferences to be drawn from them. Cahill v. Liberty Mut. Ins. Co., 80 F.3d 17 336, 337–38 (9th Cir. 1996). A court, however, need not accept all conclusory allegations 18 as true. Rather, it must “examine whether conclusory allegations follow from the 19 description of facts as alleged by the plaintiff.” Holden v. Hagopian, 978 F.2d 1115, 1121 20 (9th Cir. 1992) (citations omitted). A motion to dismiss should be granted if a plaintiff’s 21 complaint fails to contain “enough facts to state a claim to relief that is plausible on its 22 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial 23 plausibility when the plaintiff pleads factual content that allows the court to draw the 24

25 2 The FAC defines HL7 as “a set of international computer programming standards for the 26 transfer of clinical and administrative data between computer software applications used 27 by numerous healthcare providers for the exchange, integration, sharing, and retrieval of electronic protected health information that supports clinical practice and management, 28 1 reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. 2 Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). “Determining whether 3 a complaint states a plausible claim for relief [is] a context-specific task that requires the 4 reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation 5 omitted). 6 III. 7 DISCUSSION 8 A. TCPA Claims 9 Defendants argue Plaintiff failed to allege sufficient facts to support his claims that 10 Defendants used an ATDS in violation of the TCPA. Specifically, Defendants argue the 11 definition of an ATDS, as recently clarified in Duguid, is fatal to Plaintiff’s TCPA claims 12 because the factual allegations in the FAC render implausible the notion that the text 13 message at issue in this case was sent using such a device. The Court agrees. 14 Under the TCPA, it is “unlawful for any person . . . to make any call . . . using any 15 automatic telephone dialing system . . . to any telephone number assigned to a . . . cellular 16 telephone service.” 47 U.S.C. § 227(b)(1)(A)(iii). To state a claim under Section 17 227(b)(1)(A)(iii), a plaintiff must plausibly allege “(1) the defendant called a cellular 18 telephone number; (2) using an automatic telephone dialing system; (3) without the 19 recipient’s prior express consent.” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 20 1036, 1042–43 (9th Cir. 2012). A text message is a “call” within the meaning of the TCPA. 21 Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009). In Duguid, the 22 Supreme Court held that “to qualify as an ‘automatic telephone dialing system,’ a device 23 must have the capacity either to store a telephone number using a random or sequential 24 generator or to produce a telephone number using a random or sequential number 25 generator.” 141 S. Ct. at 1167. Therefore, to sustain a claim under Section 227(b), “the 26 equipment in question must use a random or sequential number generator.” Id. at 1170. 27 Plaintiff’s ATDS allegations parrot the TCPA’s text. Compare FAC ¶ 43 (“The 28 systems utilized by Defendants have the capacity to store telephone numbers using a 1 random or sequential generator; and to dial such numbers from a list without human 2 intervention”) with 47 U.S.C. § 227(a)(1) (“The term ‘automatic telephone dialing system’ 3 means equipment which has the capacity— to store or produce telephone numbers to be 4 called, using a random or sequential number generator; and to dial such numbers”) 5 (numbering omitted). Such conclusory allegations alone are insufficient to state a claim 6 under Section 227(b)(1)(A). See Watts v. Emergency Twenty Four, Inc., No. 20-cv-1820, 7 2021 WL 2529613, at *3 (N.D. Ill. June 21, 2021) (“Allegations that merely recite the 8 words of the TCPA or that simply state that the defendant used an ATDS are conclusory.”) 9 (internal quotation and bracketing omitted). 10 Furthermore, Plaintiff fails to allege additional facts sufficient to support an 11 inference that the text message at issue was sent using an ATDS. In assessing the 12 plausibility of an ATDS claim, courts consider the following non-dispositive factors: 13 (1) “the nature of the message” with a generic, impersonal, or promotional message 14 suggesting ATDS; (2) “the number or frequency of messages,” with “repetitive messages 15 sent over a short period of time” suggesting ATDS; (3) “[t]he ability to respond to or 16 interact with the text messages (i.e., sending ‘Stop’),” with interactivity of this character 17 suggesting use of an ATDS; (4) “the relationship between the parties,” with a pre-existing 18 relationship weighing against ATDS; (5) whether identical messages were sent to multiple 19 numbers simultaneously; and (6) whether the message was sent from a SMS short code or 20 long code, with a SMS short code suggesting an ATDS. Schley v. One Planet Ops Inc., 21 445 F.Supp.3d 454, 459-60 (N.D. Cal. 2020) (collecting cases). Plaintiff points out that 22 the text message here was sent using a short code. (FAC ¶¶ 38–41; ECF No. 17 at 12.) 23 The text also gave Plaintiff the ability to unsubscribe from receiving future messages by 24 clicking a link. (FAC ¶¶ 5, 30.) These two factors support Plaintiff’s ATDS claims. The 25 FAC contains no allegations as to whether identical messages were sent to other cell phones 26 simultaneously. 27 The remainder of the relevant factors, however, counsel against finding Plaintiff’s 28 ATDS claims to be plausible. Plaintiff alleges he received the single text message at issue 1 in this case “minutes” after seeing Dr. Dodge for a medical examination. (FAC ¶ 32.) The 2 text message prompted Plaintiff to rate his experience with Dr. Dodge. (Id. ¶¶ 5, 30.) The 3 nature of this solitary text and the relationship between the parties indicate the text was not 4 sent using an ATDS. Rather than bolstering the allegation that Defendant used an ATDS, 5 these facts belie the notion that Defendant sent the text message using random or sequential 6 number generation. Instead, the allegations indicate that Plaintiff was targeted with the 7 text message. Plaintiff invites the Court to find it plausible that minutes after undergoing 8 his examination with Dr. Dodge, a device happened to randomly generate his cellular 9 phone number and send a text about that examination.3 The Court declines to credit this 10 speculative possibility over the much more plausible scenario that the text message was 11 targeted at Plaintiff’s cellular telephone number. 12 Numerous courts have dismissed claims arising under similar facts after Duguid.4 13 See Jovanic v. SRP Investments LLC, No. CV-21-00393-PHX-JJT, 2021 WL 4198163, at 14 *4 (D. Ariz. Sept. 15, 2021) (dismissing TCPA case with prejudice where the plaintiff 15 alleged he received a single targeted text message, which “cut against the inference that 16

17 3 Plaintiff’s position on this point is inconsistent. While the FAC contains an allegation that 18 Plaintiff did not provide his personal cellular telephone number to any of the defendants in 19 this case, he also argues that “[t]he only way Defendants could have obtained Plaintiff’s personal cellular telephone number and learned about his visit with DR. DODGE must 20 have come from his confidential medical information in the possession of SDOAMG, 21 DODGE M.D., INC., DR. BAWA and DR. DODGE.” (Compare FAC ¶¶ 31, 33 with ECF No. 27 at 11:22–25.) 22 4 Plaintiff’s opposition to Defendant’s motion relies on this Court’s decision in Gross v. 23 GG Homes, Inc., No. 21-cv-00271-DMS-BGS, 2021 WL 2863623 (S.D. Cal. July 8, 2021). (See ECF No. 27 at 7–8, 15–16.) In Gross, the Court denied a motion to dismiss a pro se 24 Plaintiff’s ADTS claim, citing the less stringent pleading standard afforded to plaintiffs 25 proceeding without legal representation. Gross, 2021 WL 2863623, at *2, 7–8. However, on a motion for reconsideration, the Court subsequently dismissed the ATDS claims in that 26 case because the text messages at issue were targeted directly to the plaintiff, using her first 27 name, rendering it implausible that the plaintiff’s cell phone number could have been produced using a random or sequential number generator. Gross v. GG Homes, No. 3:20- 28 1 Defendants used an ATDS.”); Watts, 2021 WL 2529613, at *3 (dismissing case where “the 2 nature of [the calls at issue] suggests that they were targeted at specific individuals”); Barry 3 v. Ally Fin., Inc., No. 20-12378, 2021 WL 2936636, at *1 (E.D. Mich. July 13, 2021) 4 (dismissing case where the plaintiff’s TCPA claim was based “on phone calls she received 5 that were unsolicited but nonetheless directed to her”); Hufnus v. DoNotPay, Inc., No. 20- 6 cv-08701-VC, 2021 WL 2585488, at *1-2 (N.D. Cal. June 24, 2021) (dismissing case with 7 prejudice where the complaint did not support an inference that a random or sequential 8 number generator was used); Stewart v. Network Cap. Funding Corp., No. CV 21-368- 9 MWF (MAAx), 2021 WL 3088011, at *2 (C.D. Cal. July 16, 2021) (dismissing case where 10 “the FAC merely recite[d] legal conclusions, pleading no facts plausibly showing that 11 [defendant’s] dialing equipment employed or used a random or sequential number 12 generator in placing the complained-of calls”). Accordingly, the Court finds that Plaintiff 13 failed to plausibly allege the use of an ATDS. Defendants’ motion to dismiss Plaintiff’s 14 TCPA claims is therefore granted. 15 B. UCL Claim 16 Defendants argue Plaintiff’s UCL claim should be dismissed for lack of statutory 17 standing because Plaintiff failed to adequately allege a nontrivial economic injury caused 18 by the alleged TCPA violation. The Court agrees. 19 To have standing to bring a claim under the UCL, a plaintiff must “(1) establish a 20 loss or deprivation of money or property sufficient to qualify as injury in fact, i.e., 21 economic injury; and (2) show that economic injury was the result of, i.e., caused by, the 22 unfair business practice or false advertising that is the gravamen of the claim.” In re Sony 23 Gaming Networks & Customer Data Sec. Breach Litig., 903 F.Supp.2d 942, 965 (S.D. Cal. 24 2012) (quoting Kwikset Corp. v. Super. Ct., 51 Cal.4th 310, 322 (Cal. 2011)); see Cal. Bus. 25 & Prof. Code § 17204 (under the UCL only a “person who has suffered injury in fact and 26 has lost money or property as a result of the unfair competition” has standing to bring an 27 action for relief). The “requirement that injury be economic renders standing under [the 28 UCL] substantially narrower than federal standing . . . which may be predicated on a 1 broader range of injuries.” Kwikset Corp., 51 Cal.4th at 324. To satisfy the injury-in-fact 2 requirement, a plaintiff need show “a personal, individualized loss of money or property in 3 any nontrivial amount.” Id. at 325 (emphasis added). 4 Plaintiff alleges he “suffered an injury in fact resulting in a loss of money and/or 5 property because he was charged for the TCPA text message he received from 6 Defendants.”5 (FAC ¶ 82.) The allegation that Plaintiff was “charged” is conclusory, 7 particularly when cellular providers customarily provide unlimited text messaging for a 8 flat fee. See Reichman v. Poshmark, Inc., 267 F.Supp.3d 1278, 1288 (S.D. Cal. 2017) 9 (holding allegation that a text message wasted plaintiff’s “economically valuable text 10 message allotments” was insufficient to demonstrate an economic injury, and therefore 11 insufficient to confer standing under the UCL, because such a loss is economically trivial). 12 Accordingly, Plaintiff’s UCL claim fails for lack of standing. The Court therefore 13 dismisses Count III of the FAC. 14 C. CMIA Claim 15 The CMIA provides that “[a] provider of health care . . . shall not disclose medical 16 information regarding a patient of the provider of health care or an enrollee or subscriber 17 of a health care service plan without first obtaining an authorization . . . .” Cal. Civ. Code 18 § 56.10(a). The CMIA also creates a private right of action for violations of the Act. Id. 19 § 56.36(b). Plaintiff alleges individual Defendants Bawa and Dodge, along with corporate 20 Defendant Larry D. Dodge M.D., Inc. (the “CMIA Defendants”), violated the CMIA by 21 providing confidential medical information to rater8. (FAC ¶¶ 87–105.) 22 The CMIA Defendants, by contrast, argue Plaintiff failed to state a claim because 23 the information they are alleged to have disclosed to rater8 does not constitute “medical 24 25 26 5 Plaintiff also alleges he was injured by Defendants’ alleged failure to protect the 27 confidentiality of his medical information. (FAC ¶ 82.) However, this alleged injury is non-economic. As such, it is insufficient to confer standing to pursue relief under Cal. Bus. 28 1 information” within the meaning of the CMIA. As such, the CMIA Defendants argue 2 Plaintiff failed to plausibly allege his claim under the CMIA. The CMIA defines the term 3 “medical information” as “any individually identifiable information, in electronic or 4 physical form, in possession of or derived from a provider of health care, health care service 5 plan, pharmaceutical company, or contractor regarding a patient's medical history, mental 6 or physical condition, or treatment.” Id. § 56.05(j) (emphasis added). Defendants argue 7 that the medical examination Plaintiff underwent in this case does not constitute medical 8 treatment and that the information allegedly disclosed is too insubstantial to support a claim 9 under the CMIA. Here, too, the Court agrees with Defendants. 10 “It is clear from the plain meaning of the statute that medical information cannot 11 mean just any patient-related information held by a health care provider, but must . . . 12 include ‘a patient's medical history, mental or physical condition, or treatment.’” 13 Eisenhower Med. Ctr. v. Superior Court, 226 Cal. App. 4th 430, 435 (2014). This 14 information must be “substantive.” Id. at 434. Nowhere in the FAC does Plaintiff allege 15 the CMIA Defendants disclosed such information. 16 Rather, Plaintiff alleges the CMIA Defendants disclosed Plaintiff’s name, cellular 17 telephone number, “treating physician names, medical treatment appointment information, 18 and medical treatment discharge dates and times” to rater8. (FAC ¶ 52.) While some of 19 this information is “individually identifiable,”6 none of it constitutes “medical information” 20 within the meaning of the statute. Describing an examination as treatment does not make 21 it so. Plaintiff alleges that he visited Dr. Dodge for an independent medical examination 22 that occurred “pursuant to a demand by the insurance carrier of a non-party to this action 23 with whom Plaintiff was involved in a separate litigation arising out of an automobile 24

25 6 “‘Individually identifiable’ means that the medical information includes or contains any 26 element of personal identifying information sufficient to allow identification of the 27 individual, such as the patient's name, address, electronic mail address, telephone number, or social security number, or other information that, alone or in combination with other 28 1 collision.” (FAC ¶ 32.) Beyond the conclusory use of the words “treating” and 2 “treatment,” he does not allege facts that would allow the Court to infer that he received 3 medical treatment during that examination. 7 Thus, information about the appointment 4 cannot be said to constitute information regarding treatment. Indeed, “[e]ven accepting 5 that [a] person was treated, this fact that he or she was a patient is not in itself medical 6 information as defined in section 56.05 . . . .” Eisenhower Med. Ctr., 226 Cal. App. 4th at 7 435–36 (“[T]he mere fact that a person may have been a patient at the hospital at some 8 time is not sufficient” to allege medical information under the CMIA). Here, the FAC does 9 not contain specific allegations about what information the CMIA Defendants disclosed to 10 rater8 beyond Plaintiff’s contact information and appointment date. This is insufficient to 11 allege disclosure of medical information under the CMIA. Accordingly, Plaintiff’s CMIA 12 claim is dismissed. 13 / / / 14 / / / 15 / / / 16 / / / 17

18 19 7 Nor does Plaintiff cite any authority supporting his position that the information allegedly disclosed to rater8 constitutes “medical information” under the CMIA. Rather, in his 20 statement of new decision, Plaintiff directs the Court to In re Blackbaud, Inc., Customer 21 Data Breach Litig., No. 3:20-mn-02972-JMC, 2021 WL 3568394 (D.S.C. Aug. 12, 2021). (ECF No. 30.) Blackbaud is distinguishable from the present case. In Blackbaud, the court 22 found that one plaintiff plausibly alleged the disclosure of medical information under the 23 CMIA where she alleged two defendants informed her that her name, address, phone number, email address, date of birth, age, room number, patient identification number, 24 name of hospital where treated, applicable hospital department or unit, inpatient/outpatient 25 status, dates of service, patient room number, and physician name were exposed or may have been exposed in a ransomware attack. Blackbaud at *7. In that case, plaintiff further 26 alleged that additional information such as her diagnosis or treatment plan may have been 27 compromised. Id. Here, Plaintiff’s allegations are much narrower and less detailed and substantive than those in Blackbaud. Further, there is no allegation that the CMIA 28 1 IV. 2 CONCLUSION 3 For these reasons, the Court dismisses Plaintiff's FAC in its entirety. Plaintiff is 4 || granted leave to file an amended complaint that cures the pleading deficiencies set out 5 above no later than 14 days from entry of this Order. 6 IT IS SO ORDERED J □ 7 || Dated: October 18, 2021 □ Hon. Dana M. Sabraw . United States Chief District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11