District Court (Cal.) Says to TCPA Plaintiff: “No Standing for You”!

In Brinker v. Normandin’s, 2017 WL 661372, at *2–3 (N.D.Cal., 2017), Judge Davila dismissed a TCPA case due to lack of Article III standing.

Several courts have found that plaintiffs who received automated unsolicited calls have standing to bring TCPA claims. For instance, in Hewlett, the court found that “near daily” calls to the plaintiff’s phone over the course of a month were sufficient to establish a concrete injury. Hewlett v. Consol. World Travel, Inc., No. 2:16-713 WBS AC, 2016 WL 4466536, at *1, *3 (E.D. Cal. Aug. 23, 2016). Similarly, in Juarez, the court found that “42 calls over the course of 12 days” established standing because they were “an annoyance that caused [the plaintiff] to waste time.” Juarez v. Citibank, N.A., No. 16-cv-01984, 2016 WL 4547914, at *1, *3 (N.D. Cal. Aug. 1, 2016). And in Cour, the court found standing where the plaintiff received at least two text messages (which are “calls” under TCPA) and responded to at least one of them. Cour v. Life360, Inc., No. 16-cv-00805, 2016 WL 4039279, at *1–2 (N.D. Cal. July 28, 2016). *3 However, other courts have found that automated calls do not always cause injuries sufficient to establish standing. In Smith, for instance, the plaintiff received a single call. Smith v. Altima Med. Equip., No. ED CV 16-00339-AB (DTBx), 2016 WL 4618780, at *1 (C.D. Cal. July 29, 2016). The plaintiff alleged multiple injuries, including nuisance, aggravation, invasion of privacy, and “involuntary telephone and electrical charges.” Id. at *3. The court found that injuries arising from a single call were too slight to confer standing: “Any depletion of Plaintiff’s battery, or aggravation or nuisance, resulting from only one call, is a de minimis injury.” Id. at *4–5. Likewise, in Romero, the plaintiff received over 290 calls in six months. Romero v. Dep’t Stores Nat’l Bank, Case No.: 15-CV-193-CAB-MD, 2016 WL 4184099, at *1 (S.D. Cal. Aug. 5, 2016). She alleged 290 separate TCPA violations, so the question before the court was whether a single call causes injury that is sufficient to establish standing. Id. at *3–4. The court held that a single call, answered or not, is insufficient. Id. at *4–6 (“one singular call, viewed in isolation and without consideration of the purpose of the call, does not cause any injury that is traceable to the conduct for which the TCPA created a private right of action, namely the use of an ATDS to call a cell phone”).Here, Brinker alleges that he received a single call.2 SAC at ¶¶ 27–28; Def.’s Reply in Support of Mot. to Dismiss (“Reply”) at 3, Dkt. No. 134 (citing Brinker’s deposition testimony, in which he said he received “just one robocall”). The call went to voicemail; he then listened to the message, called to confirm that Normandin’s left the message, and hung up. MTD at 3 (citing Brinker’s deposition testimony).Rugg and Sanders each received “approximately five or six” calls with similar messages. SAC ¶¶ 38–40, 51–53. From the allegations, it is unclear whether Rugg and Sanders answered the calls, whether they heard the phone ring, or when the calls occurred. The time period is also vague, but it appears that all of the calls occurred in 2014. Pl.’s Opp. to Def.’s Mot. to Dismiss at 2, Dkt. No. 132. Despite these ambiguities, Rugg and Sanders allege that they were aware of having received these messages. SAC ¶¶ 40, 53 (alleging that Rugg and Sanders received prerecorded messages with “words to the effect” that their vehicles were overdue for service).The Court finds that Plaintiffs’ injuries are too minimal to establish standing. If the calls violated Plaintiffs’ privacy and caused annoyance or harassment, the injuries are nominal: Brinker alleges that he received a single call, which he did not answer; and Rugg and Sanders allege that they each received “approximately five or six” calls in 2014—or, roughly one call every two months. Id. ¶¶ 32, 45, 57 (alleging injury); id. ¶¶ 27–29, 38–40, 51–53 (describing calls received). These injuries are not sufficiently concrete. See Vasquez v. LA Cty., 487 F.3d 1246, 1250 (9th Cir. 2007) (“the standing doctrine…requires a plaintiff to personally suffer some actual or threatened harm as a result of defendant’s putatively illegal conduct”); Romero, 2016 WL 4184099, at *4 (“No reasonable juror could find that one unanswered telephone call could cause lost time, aggravation, distress, or any injury sufficient to establish standing.”); Smith, 2016 WL 4618780, at *4 (“Any depletion of Plaintiff’s battery, or aggravation and nuisance, resulting from only one call, is a de minimis injury.”); Juarez, 2016 WL 4547914, at *3 (although the plaintiff established that a series of 42 calls caused concrete injury, “[t]his does not mean any violation of the TCPA will necessarily give rise to Article III standing”).