Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 1 of 16
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`NO. 13-CV-1807-MMA (NLS)
`ORDER GRANTING
`DEFENDANT’S MOTION
`FOR SUMMARY
`JUDGMENT
`
`Plaintiff,
`
`JANE HUDSON,
`
`v.
`
`SHARP HEALTHCARE,
`
`Defendant.
`
`[Doc. No. 42]
`
`Defendant Sharp Healthcare (“Defendant” or “Sharp”) moves for summary
`judgment or, in the alternative, partial summary judgment pursuant to Federal Rule
`of Civil Procedure 56. [Doc. No. 42.] Plaintiff Jane Hudson (“Plaintiff”) filed an
`opposition to the motion, to which Defendant replied. [Doc. Nos. 54–55.] The
`Court, in its discretion, took the matter under submission pursuant to Civil Local
`Rule 7.1(d)(1). For the reasons set forth below, the Court GRANTS Defendant’s
`motion for summary judgment.
`
`BACKGROUND1
`On September 24, 2012, Plaintiff and her minor child, S.H., went to Sharp
`Grossmont Hospital to receive treatment for possible food poisoning. Upon
`
`1 The following facts are not reasonably in dispute, unless otherwise noted.
`The facts cited herein are taken from the parties’ separate statements of undisputed
`facts, and are construed in the light most favorable to Plaintiff. See Horphag
`Research Ltd. v. Garcia, 475 F.3d 1029, 1035 (9th Cir. 2007).
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 2 of 16
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`admission, Plaintiff, on behalf of herself and S.H., received and acknowledged
`receipt of Sharp’s Conditions of Admission (“COA”) paperwork including: (1)
`Admission Agreement for Inpatient and Outpatient Services; (2) Attestation; and (3)
`Notice of Privacy Practices. [Def.’s Separate Statement of Uncontroverted Facts
`(“DSSUF”) Nos. 21–23.] Plaintiff executed the Attestation document, verifying her
`cellular telephone number ending in 5954 as her sole point of contact with Sharp.
`The COA paperwork included a payment provision, which stated:
`13. Financial Agreement: You agree, whether you sign as agent or
`as patient, that in consideration of the services to be rendered to the
`patient, you hereby individually obligate yourself to pay all the
`hospital bills in accordance with the rates as indicated in the
`hospital charge description master and terms of the hospital to
`include service charges and/or interest bearing payment plans. The
`hospital, or other entity contracting with the hospital, may obtain
`credit reports from national credit bureaus. Should the account be
`referred to an attorney or collection agency for collection, you shall
`pay all related fees and collection expenses. All delinquent
`accounts shall bear interest at the legal rate.
`[Kiesendahl Decl., Exs. D, G.]
`The Notice of Privacy Practices form also included a “Payment” section,
`which stated:
`We may use or disclose your information for billing and to arrange for
`payment from you, an insurance company, a third party or a collection
`agency.
`[Id., Ex. C.]
`Upon admission to the hospital, Plaintiff believed that both she and S.H. had
`active Medi-Cal coverage. However, Sharp advised Plaintiff this was incorrect.
`Although S.H. had coverage at that time,2 Plaintiff’s coverage had lapsed.
`
`2 Sharp’s computerized medical records showed that Medi-Cal reported S.H.
`owed a Share of Costs, patient deductible, of $737.00. On or about October 22,
`2012, Sharp received a $34.10 payment from Medi-Cal on S.H.’s account.
`However, Sharp refunded that payment because it did not reflect the appropriate
`Share of Costs. Medi-Cal later provided retroactive coverage for S.H. without a
`Share of Costs. However, $34.10 was and is still due on S.H.’s account. Currently,
`Sharp has an appeal pending with Medi-Cal to obtain payment. Until paid, Sharp
`contends that Plaintiff is individually obligated for the debt pursuant to the COA
`payment provisions. [Mot. at 9–10.]
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 3 of 16
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`After discharge that same day, Plaintiff sought to reinstate her Medi-Cal
`coverage, but was not immediately successful. In the interim, beginning on or about
`October 22, 2012, Sharp made a series of autodialed calls to Plaintiff’s cellular
`telephone number, attempting to collect payment for the treatment provided in
`September 2012. Plaintiff admitted at her deposition that she does not recall Sharp
`demanding payment from her. [Vanden Heuvel Decl., Ex. A (“Hudson Dep.”)
`84:20–85:2.] Rather, the phone calls between Plaintiff and Sharp from October
`2012 through January 2013 were made with the goal of obtaining Medi-Cal
`coverage to pay the bills. [Id. at 88:7–89:12.]
`On January 23, 2013, Medi-Cal notified Plaintiff that she was retroactively
`approved for coverage. At that time, Plaintiff informed Sharp that she had obtained
`coverage, and Sharp made no further calls to Plaintiff’s cellular telephone number
`regarding Plaintiff’s account. [See DSSUF Nos. 53–54; Hudson Dep. 84:20–85:2.]
`However, after January 23, 2013, and until August 24, 2013, Sharp continued to call
`Plaintiff regarding the outstanding balance due on S.H.’s account. [DSSUF No. 54;
`Sevenikar Decl., Exs. F, G.]
`On August 24, 2013, Plaintiff filed this action under the Telephone Consumer
`Protection Act (“TCPA”) against Defendant on behalf of herself and “all persons
`within the United States who received any telephone call from Defendant or their
`agents to said person’s cellular telephone through the use of any automatic telephone
`dialing system or with an artificial or prerecorded voice who did not provide prior
`express consent during the transaction that resulted in the debt owed, within the four
`years prior to the filing of the Complaint in this action.” [See Doc. No. 1.] The
`operative complaint alleges two causes of action against Defendant: (1) negligent
`violations of the TCPA, and (2) knowing and/or wilfull violations of the TCPA. [Id.
`¶¶ 37–44.] Defendant now moves for summary judgment on both of Plaintiff’s
`claims. [Doc. No. 42.]
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 4 of 16
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`LEGAL STANDARD
`The Federal Rules of Civil Procedure provide for summary judgment when
`“the movant shows that there is no genuine dispute as to any material fact and the
`movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also
`Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of
`Rule 56 is to dispose of factually unsupported claims or defenses. Celotex, 477 U.S.
`at 325.
`In a summary judgment motion, the moving party always bears the initial
`responsibility of informing the court of the basis for the motion and identifying the
`portions in the record “which it believes demonstrate the absence of a genuine issue
`of material fact.” Id. at 323. If the moving party meets its initial responsibility, the
`burden then shifts to the opposing party to establish that a genuine issue as to any
`material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
`475 U.S. 574, 586–87 (1986); First Nat’l Bank v. Cities Serv. Co., 391 U.S. 253,
`288–89 (1968). The opposing party must support its assertion by:
`(A) citing to particular parts of materials in the record, including
`depositions, documents, electronically stored information, affidavits or
`declarations . . . or other materials; or (B) showing that the materials cited
`do not establish the absence or presence of a genuine dispute, or that an
`adverse party cannot produce admissible evidence to support the fact.
`Fed. R. Civ. P. 56(c)(1). The opposing party must demonstrate that the fact in
`contention is material, i.e., a fact that might affect the outcome of the suit under the
`governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 251–52 (1986);
`Owens v. Local No. 169, Assoc. of W. Pulp and Paper Workers, 971 F.2d 347, 355
`(9th Cir. 1987). The opposing party must also demonstrate the dispute about a
`material fact “is ‘genuine,’ that is, if the evidence is such that a reasonable jury could
`return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. In other
`words, before the evidence is left to the jury, the judge needs to answer the
`preliminary question of “not whether there is literally no evidence, but whether there
`is any upon which a jury could properly proceed to find a verdict for the party
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 5 of 16
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`producing it, upon whom the onus of proof is imposed.” Id. at 251 (quoting
`Improvement Co. v. Munson, 81 U.S. 442, 448 (1871)) (emphasis in original). As
`the Supreme Court explained, “[w]hen the moving party has carried its burden under
`Rule [56(a)], its opponent must do more than simply show that there is some
`metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586.
`Therefore, “[w]here the record taken as a whole could not lead a rational trier of fact
`to find for the nonmoving party, there is no ‘genuine issue for trial.’” Id. at 587.
`In resolving a summary judgment motion, the evidence of the opposing party
`is to be believed, and all reasonable inferences that may be drawn from the facts
`placed before the court must be drawn in favor of the opposing party. Anderson,
`477 U.S. at 255. The Court may not make credibility determinations or weigh
`conflicting evidence. See id. The ultimate question on a summary judgment motion
`is whether the evidence “presents a sufficient disagreement to require submission to
`a jury or whether it is so one-sided that one party must prevail as a matter of law.”
`Id. at 251–52.
`
`DISCUSSION
`Defendant moves for summary judgment on both of Plaintiff’s claims. It
`argues that it had prior express consent to call Plaintiff at her cellular telephone
`number, and that the purpose of the calls was within the scope of consent.
`A.
`Telephone Consumer Protection Act
`The TCPA makes it unlawful for a person to call the cellular telephone
`number of any other person using an automatic telephone dialing system without the
`recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii); see also Meyer v.
`Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). Defendant
`bears the burden of proving prior express consent as an affirmative defense. See In
`re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23
`F.C.C.R. 559 ¶ 10 (Jan. 4, 2008); Van Patten v. Vertical Fitness Grp., LLC, --- F.
`Supp. 2d ---- (2014); 2014 WL 2116602, at *3 (S.D. Cal. May 20, 2014) (citations
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 6 of 16
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`omitted). Although the TCPA does not define “prior express consent,” Congress has
`“delegated authority to the Federal Communications Commission (“FCC”) to
`prescribe regulations that implement TCPA’s provisions.” Olney v. Job.com, Inc.,
`2014 WL 1747674, at *4 (E.D. Cal. May 1, 2014) (citing 47 U.S.C. §§ 227(b)(2),
`(f)). “The FCC’s interpretations of TCPA are controlling unless invalidated by a
`court of appeals.” Id. (citations omitted).
`B.
`Prior Express Consent
`As noted, the TCPA makes it unlawful for a person to call the cellular
`telephone number of any other person using an automatic telephone dialing system
`without the recipient’s prior express consent. 47 U.S.C. § 227(b)(1)(A)(iii); see also
`Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012).
`Thus, the TCPA expressly exempts from liability a caller who has consent to call the
`cellular telephone number. 47 U.S.C § 227(b)(1)(A). Although the TCPA does not
`define “prior express consent,” Congress has “delegated authority to the Federal
`Communications Commission (“FCC”) to prescribe regulations that implement
`TCPA’s provisions.” Olney v. Job.com, Inc., 2014 WL 1747674, at *4 (E.D. Cal.
`May 1, 2014) (citing 47 U.S.C. §§ 227(b)(2), (f)). “The FCC’s interpretations of
`TCPA are controlling unless invalidated by a court of appeals.” Id. (citations
`omitted).3
`In a 1992 Report and Order, the FCC stated that “persons who knowingly
`release their phone numbers have in effect given their invitation or permission to be
`
`3 Plaintiff contends that the FCC Orders governing prior express consent do
`not control, because the Ninth Circuit defined express consent as “[c]onsent that is
`clearly and unmistakably stated.” [Opp’n at 8 (citing Satterfield v. Simon &
`Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009).] However, Satterfield did not
`invalidate the FCC Orders. See Baird v. Sabre, Inc., 2014 WL 320205, at *5 (C.D.
`Cal. Jan. 28, 2014) (recognizing that the court in Satterfield “had no occasion to
`consider the validity of the FCC’s interpretation of express consent”). Accordingly,
`the FCC Orders control. See id. (citations omitted); see also Olney, 2014 WL
`1747674, at *4 (finding FCC Order controls when interpreting what constitutes
`“prior express consent” under the TCPA).
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 7 of 16
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`called at that number which they have given, absent instructions to the contrary.” In
`re Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7
`F.C.C.R. 8752, 8769 ¶ 31 (Oct. 16, 1992). In a subsequent ruling, the FCC clarified
`that “autodialed and prerecorded message calls to wireless numbers that are provided
`by the called party to a creditor in connection with an existing debt are permissible
`as calls made with the ‘prior express consent’ of the called party.” In re Rules and
`Regulations Implementing the Tel. Consumer Prot. Act of 1991, 23 F.C.C.R. 559 ¶¶
`1, 9 (Jan. 4, 2008). In such a case, “[p]rior express consent is . . . granted only if the
`wireless number was provided by the consumer to the creditor, and that such number
`was provided during the transaction that resulted in the debt owed.” Id. ¶ 10. The
`FCC also concluded that the creditor bears the burden of proving prior express
`consent. Id.; Van Patten, 2014 WL 2116602, at *3 (citations omitted).
`Here, Defendant asserts that Plaintiff provided prior express consent to call
`her cellular telephone number when she provided that number during the admissions
`process into Sharp Hospital. In support of this assertion, Defendant provides
`evidence of its specific written policies and procedures regarding requesting or
`validating patient demographics in COA paperwork, including cellular telephone
`numbers. [See Kiesendahl Decl. ¶¶ 4–7, 16–20.] Moreover, Defendant offers
`evidence that it followed those procedures with respect to Plaintiff and S.H. on
`September 24, 2012. [See id.] Specifically, Sharp’s Access Service Representative
`asked Plaintiff for her address and telephone number, and Plaintiff stated “she had
`no home telephone number, only a cellular telephone number.” [Id. ¶¶ 5, 18.] Then,
`Plaintiff orally stated that her telephone number was the number ending in 5954.
`[Id. ¶¶ 7, 20.] Thereafter, Plaintiff signed the COA paperwork on behalf of herself
`and S.H., including the Attestation. [Kiesendahl Decl., Ex. E (“Attestation”).]
`Plaintiff’s signature appears on the same form as her cellular telephone number, and
`she placed her initials next to the cellular telephone number on the form. [Id.]
`Plaintiff argues that genuine issues of fact remain with respect to whether she
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 8 of 16
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`provided her cell phone number to Sharp. She contends that her number may have
`been obtained by Sharp prior to her signing the Attestation form, or obtained from a
`source other than Plaintiff. [Opp’n at 8.] For example, Plaintiff contends that the
`account notes only reflect a phone number deletion, but that if she had provided her
`cellular telephone number, a phone number addition would have been reflected in
`her account notes. [Id. at 10.] Also, Plaintiff contends that she did not provide
`Sharp with her information on September 24, 2012, but rather, the information
`“autopopulated” from previously collected data or some other source, such as Medi-
`Cal. [Id. at 11.] To support this, Plaintiff argues that the Attestation form does not
`note a change in the phone number field, and that Sharp’s representatives have no
`specific recollection of Plaintiff or S.H. [Id. at 11–14.]
`The Court is not persuaded. Sharp has provided substantial evidence that
`Plaintiff provided the information contained in the Attestation on behalf of herself
`and S.H. Moreover, her initials appear directly adjacent to her telephone number on
`the form. In addition, in her deposition, Plaintiff conceded that she may have
`provided her number to Sharp, and simply did not recall doing so. [Hudson Dep.
`60:8–12, 61:10–23.] In light of this evidence, Plaintiff’s argument that Defendant
`obtained her number from another source fails to create a genuine issue of material
`fact for trial. To defeat a motion for summary judgment, Plaintiff must identify
`“specific facts showing that there is a genuine issue for trial.” See Matsushita, 475
`U.S. at 587 (quoting Fed. R. Civ. Proc. 56(e)). Plaintiff’s assertion that Defendant
`obtained her cellular telephone number from Medi-Cal or some other source is
`wholly speculative. See generally, Matsushita, 475 U.S. at 586 (establishing a
`genuine dispute cannot be established by metaphysical doubt as to the material
`facts). The record demonstrates that Plaintiff’s cellular telephone number is not on
`her Medi-Cal card, and none of Sharp’s representatives has ever retrieved a cellular
`telephone number from Medi-Cal. [Kiesendahl Decl. ¶ 15; Seaman Decl. ¶ 10;
`Fransway Decl. ¶ 7.]
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 9 of 16
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`The authority cited by Plaintiff is to no avail. First, Plaintiff cites Pollock v.
`Bay Area Credit Service, LLC, 2009 WL 2475167, at *10–11 (S.D. Fla. Aug. 13,
`2009). In Pollock, the court denied summary judgment on the issue of consent
`because, although plaintiff’s cell phone number was on a medical provider’s records,
`“she did not provide it and [was] unsure how it came to be on the form.” Id.
`However, the plaintiff’s signature appeared on a page separate from her cellular
`telephone number, and there was no evidence the forms were connected in any way.
`Id. at *11. As such, the court concluded it was a “factual issue for the jury as to
`whether the form could lead to a reasonable conclusion that Plaintiff expressly
`consented to the use of her cell phone number.” Id. Here, Plaintiff’s signature
`appears on the same form as her cellular telephone number, and she placed her
`initials next to the cellular telephone number on the Attestation form.
`Second, Plaintiff cites Mais v. Gulf Coast Collection Bureau, Inc., 944 F.
`Supp. 2d 1226 (S.D. Fla. 2013). There, the court declined to follow the FCC Orders
`and denied summary judgment because it found that providing a cellular telephone
`number to a health care provider did not constitute “prior express consent.”
`However, Mais is viewed as an outlier decision and is not otherwise binding on this
`Court. See Murphy v. DCI Biologicals Orlando, LLC, 2013 WL6865772, at *8
`(M.D. Fla. Dec. 31, 2013). In line with other courts in this district, this Court treats
`the FCC Orders as binding. See, e.g., Van Patten, 2014 WL 2116602, at *2–*3.
`Next, the Court is not persuaded by Plaintiff’s argument that there was no
`prior express consent because her cellular telephone number “autopopulated.”
`Courts have found that similar knowing releases of information are sufficient to
`constitute prior express consent under the FCC Orders. See, e.g., Van Patten, 2014
`WL 2116602, at *1 (finding prior express consent where phone number was copied
`by defendant onto membership agreement plaintiff signed); Kolinek v. Walgreen
`Co., 2014 WL 518174 (N.D. Ill Feb. 10, 2014) (finding prior express consent ten
`years after plaintiff provided cell phone number); Murphy v. DCI Biologicals
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`Orlando, LLC, 2013 WL 6865772 (M.D. Fla. Dec. 31, 2013) (finding prior express
`consent two years after plaintiff provided cell phone number). Accordingly, a prior
`knowing release to Sharp is sufficient to establish prior express consent in this case.
`Finally, Plaintiff argues that “verifying” her cellular telephone number did
`not equate to “providing” that number for purposes of the FCC regulations.
`However, other courts have found prior express consent where plaintiffs have
`verified or certified such information. See e.g., Van Patten, 2014 WL 2116602, at
`*1 (finding phone number defendant copied onto a membership agreement plaintiff
`signed constituted prior express consent); Elkins v. Medco Health Solutions, Inc.,
`2014 WL 1663406, at *3, *7 (E.D. Mo. Apr. 25, 2014) (finding plaintiff identifying
`her cellular telephone number as her home–and contact–number and signing to
`certify the information was true and accurate constituted prior express consent).
`Thus, the Court finds that “verifying” a cellular telephone number does not
`substantively differ from “providing” that number for purposes of determining prior
`express consent.
`The only affirmative evidence Plaintiff offers regarding whether she
`“provided” her cellular telephone number to Sharp is her own self-contradicting
`deposition testimony. [Compare Hudson Dep. 41:24–42:1, 47:23–48:5 (denying she
`provided the number), with id. at 60:8–12, 61:10–23 (conceding she may have
`provided the number and does not recall). The Ninth Circuit “has refused to find a
`‘genuine issue’ where the only evidence presented is ‘uncorroborated and
`self-serving’ testimony.” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061
`(9th Cir. 2002) (citations omitted). Accordingly, this Court finds that Plaintiff’s
`inconsistent deposition testimony is not sufficient to raise a genuine issue of material
`fact.4
`
`4 Because the Court finds Plaintiff gave prior express consent under the TCPA
`to receive calls on her cellular telephone number, the Court need not decide whether
`Defendant had separate authority to make those calls under HIPAA. See, e.g.,
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`Case 3:13-cv-01807-MMA-NLS Document 56 Filed 06/25/14 Page 11 of 16
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`Scope of Consent
`C.
`Next, Plaintiff argues that any consent she may have given was limited to
`receiving phone calls regarding test result or medical information. Accordingly,
`Plaintiff contends that Sharp’s phone calls exceeded the scope of her consent.
`The TCPA does not require that calls be made “for the exact purpose for
`which the number was provided,” but rather that the call “bear some relation to the
`product or service for which the number was provided.” See Olney, 2014 WL
`1747674, at *7. Defendant argues that consent is based on an objective standard,
`and extends to a wide range of calls “regarding” the transaction. [Mot. at 14.]
`Plaintiff, however, contends that any consent given did not encompass consent to be
`robocalled with hospital collection calls. [Opp’n at 14.] Plaintiff asserts that she
`believed Sharp only needed her cellular telephone number to follow up on test
`results and provide her with medical information. [Id. at 15 (citation omitted).]
`The Court concludes that the subject calls were within the scope of consent.
`Plaintiff provided her cellular telephone number as the point of contact regarding the
`care and treatment rendered to herself and S.H. on September 24, 2012. Defendant
`then called Plaintiff at the number provided regarding Medi-Cal coverage or
`payment for medical bills associated with her and S.H.’s hospital visits. Regardless
`of what Plaintiff may have believed regarding Sharp’s reason for having her cellular
`telephone number, the Court finds that the calls were directly related “to the product
`or service for which the number was provided.” See Olney, 2014 WL 1747674, at
`*7
`Plaintiff cites two cases holding that prior express consent under the TCPA
`
`does not include consent to receiving marketing calls or materials. [Opp’n at 14
`(citing Connelly v. Hilton Grant Vacations, LLC, 2012 WL 2129364 (S.D. Cal. Jun.
`
`Mitchem v. Illinois Collection Servs., Inc., 2012 WL 170968, at *2 (N.D. Ill. Jan. 20,
`2012) (declining to decide whether consent was afforded by HIPAA or the FCC,
`because the court determined plaintiff provided prior express consent).
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`11, 2012); Carlson & Nevada Eye Care Prof’ls, 2013 WL 2319143 (D. Nev. May
`28, 2013)).] Here, however, Defendant called Plaintiff regarding her medical
`billing, not for marketing purposes. As such, these cases are inapposite. Plaintiff
`also relies, again, on Mais v. Gulf Coast Collection Bureau, Inc., which, as discussed
`previously, is not binding on this Court.
`The Court finds there is no genuine issue of material fact as to the relation
`between the service provided and the purpose of Defendant’s phone calls.
`D.
`Consent Revocation
`Finally, Plaintiff contends that summary judgment is not warranted because,
`even if she originally gave consent, she later revoked her consent. [Opp’n at 16–17.]
`The TCPA does not expressly allow consumers to revoke prior express consent. See
`47 U.S.C. § 227; In the Matter of Rules and Regulations Implementing the
`Telephone Consumer Protection Act of 1991, 27 F.C.C.R. 15391, 15394 ¶ 8 (Nov.
`26, 2012) (noting text nor legislative history of the TCPA directly addresses
`circumstances where prior express consent is deemed revoked); Gutierrez v.
`Barclays Grp., 2011 WL 579238, at *4 (S.D. Cal. Feb. 9, 2011). However, courts
`have recognized that consumers have the right to revoke consent, and may do so
`orally. See Munro v. King Broadcasting Co., 2013 WL 6185233, at *3 (W.D. Wash.
`Nov. 26, 2013) (internal citations and quotations omitted); Gutierrez, 2011 WL
`579238, at *4.
`Defendant argues that Plaintiff never expressly revoked her consent in any
`phone calls with its representatives. [Reply at 6.] Moreover, Defendant argues that
`Plaintiff never requested that her number be removed from the autodialer or stated
`that she did not wish to receive future calls on her cellular telephone number. [Id.;
`see also Sevenikar Decl., Ex. G.] Plaintiff does not dispute that she never stated
`words to the effect of “Don’t call me on this cell phone anymore!” [Opp’n at 16.]
`Instead, Plaintiff contends that through “mutual agreement” with Sharp
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`representatives, she effectively revoked any consent she may have given.5 [Id. at
`17.]
`
`Defendant placed calls to Plaintiff’s cellular telephone number regarding two
`separate account numbers—one relating to Plaintiff and one to S.H. [Sevenikar
`Decl., Ex. F (“Contact Trace Record”).] From October 22, 2012 to January 21,
`2014, Sharp made 13 autodialed calls regarding Plaintiff’s account, account number
`82017916. [Id.] No additional calls were made regarding that account after January
`21, 2013. [Id.] During the same time period, Sharp made 2 autodialed calls
`regarding S.H.’s account, account number 82017918. [Id.] After January 21, 2013,
`Sharp made approximately 37 autodialed calls, only regarding S.H.’s account. [Id.]
`i.
`Revocation as to Plaintiff’s Account6
`From October 22, 2012 to January 21, 2014, Sharp made 13 autodialed calls
`regarding Plaintiff’s account, account number 82017916. [Contact Trace Record.]
`Plaintiff contends that she revoked her consent to be called during a January 23,
`2013, conversation with Sharp. The record of the phone call, however, says
`otherwise. During the call, Sharp’s agent acknowledged that Plaintiff’s Medi-Cal
`insurance was reinstated without a Share of Costs and that Sharp no longer had a
`need to contact her by phone regarding the bill. However, the agent told Plaintiff
`that she may receive something in writing—or a phone call—if any issues arose in
`processing the Medi-Cal payment on her account. [Sevenikar Decl., Ex G.] Plaintiff
`did not request not to be called, and did not otherwise object to the information
`provided by Sharp’s agent. Thus, no evidence supports Plaintiff’s claim that the
`
`5 Plaintiff cites Gager v. Dell Financial Services, LLC, 727 F.3d 265 (3d Cir.
`2013), for the proposition that consent is revocable. However, Plaintiff offers no
`other support for her assertion that an alleged mutual agreement constitutes
`revocation.
`6 Because Plaintiff’s cellular telephone number was linked to two separate
`patient accounts—Plaintiff and S.H.—some calls at issue were made regarding
`Plaintiff’s account, while others related to S.H.’s account. Because revocation is
`necessarily account-specific, the Court addresses the phone calls made regarding
`each account separately.
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`parties reached a mutual agreement whereby Sharp would stop calling Plaintiff.
`Moreover, even assuming that this communication constituted a proper
`revocation of consent, the record demonstrates that Defendant did not place any
`future calls to Plaintiff’s cellular telephone number regarding her account.
`Defendant’s Contact Trace record shows that all calls made after January 23, 2013
`pertained to S.H.’s account number. [See Contact Trace Record.] Thus, the Court
`finds that no genuine issues of fact remain with regard to the propriety of any calls
`made to Plaintiff’s cellular telephone number regarding her account.
`ii.
`Revocation as to S.H.’s Account
`Next, the Court considers whether Plaintiff revoked consent with respect to
`S.H.’s account. Again, Plaintiff contends that the parties reached a mutual
`agreement whereby Sharp would stop calling her cellular telephone number.
`First, on February 6, 2013, Sharp made an autodialed phone call to Plaintiff’s
`cellular telephone number regarding S.H.’s account. [Id.; Sevenikar Decl., Ex. G.]
`Plaintiff did not answer, and a recorded message—referencing S.H.’s account
`number—was left on Plaintiff’s voicemail. [Sevenikar Decl., Ex G.] Plaintiff
`returned Sharp’s call that same day. When she did so, Plaintiff provided her own
`account information, and not S.H.’s account information. [Id.] As such, the
`representative accessed Plaintiff’s account and, after reviewing it, informed Plaintiff
`that she would place a 30-day suppression on the account and that Plaintiff could
`disregard the previous call. [Id.] S.H.’s account was never mentioned, nor did
`Plaintiff instruct Sharp not to call her phone number in the future. Thus, the Court
`concludes that there are no genuine issues of fact outstanding with respect to
`whether Plaintiff revoked her consent during the February 6, 2013 phone call.
`Several weeks later, on February 26, 2013, Sharp autodialed Plaintiff’s
`cellular telephone number regarding S.H.’s account again, and left a message. [Id.]
`When Plaintiff returned the phone call, Sharp’s representative informed Plaintiff
`there was an outstanding Share of Costs on S.H.’s account. [Id.] When Plaintiff
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`disputed that a Share of Costs was due, the agent independently verified S.H.’s
`coverage and told Plaintiff the coverage information would be forwarded to an
`insurance representative. [Id.] Again, there is no evidence of a “mutual agreement”
`between the parties whereby Defendant was to stop calling Plaintiff. Nor did
`Plaintiff expressly request that Sharp discontinue future calls.
`On April 17, 2013, Plaintiff answered an autodialed call from Sharp regard