District Court (Cal.) Says TCPA Defendant Created Triable Issue of Material Fact as to Whether Plaintiff Revoked Consent to be Called

“The TCPA does not explicitly grant consumers the right to revoke their prior express consent.” Van Patten, 847 F.3d at 1047 (internal citations omitted). In 2015, however, the FCC clarified that consumers may revoke their “consent in any reasonable manner that clearly expresses [their] desire not to receive further calls.” In re Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 30 FCC Rcd. 7961, 7999 (July 10, 2015); see Van Patten, 847 F.3d at 1048. Courts do not consider the called party’s subjective intent, and instead, “consent is terminated when the [person who obtained consent] knows or has reason to know that the other is no longer willing for him to continue the particular conduct.” Dixon v. Monterey Fin. Servs., No. 15–cv–03298–MMC, 2016 U.S. Dist. LEXIS 82601, at *8 (N.D. Cal. June 24, 2016) (quoting Osorio v. State Farm Bank, F.S.B., 746 F.3d 1242, 1253 (11th Cir. 2014)).  Here, Plaintiff asserts that she clearly revoked her consent to be called when she stated “stop calling me” in the January 4, 2017 call. Mot. 12:6–8. Defendant’s representative’s notes from immediately after the call reference this statement. Id., Ex. E at 4. Defendant contends in the Declaration of Paul Osborne that a minor had previously answered Plaintiff’s phone, and therefore, Defendant was not clear on whether Plaintiff herself had actually requested that Defendant stop calling her. Decl. of Paul Osborne ¶ 13, ECF No. 29–1. While Plaintiff argues that Defendant has not produced any evidence to support its assertion that a minor previously answered Plaintiff’s phone, “the court must examine the evidence in the light most favorable to the non-movant and draw all justifiable inferences in its favor.” Anderson, 477 U.S. at 248.  Importantly, “a factual dispute regarding alleged revocation of consent cannot be properly resolved on summary judgment.” Walker v. Transworld Sys., No. 8:14–cv–588–T–30MAP, 2014 U.S. Dist. LEXIS 174136, at *7 (M.D. Fla. Dec. 17, 2014); see Osorio, 746 F.3d at 1256 (finding that whether the plaintiff revoked his consent was “exactly the kind of factual dispute that cannot properly be resolved on summary judgment”). While Plaintiff stated in the January 4, 2017 call, “stop calling me,” these were the only words other than “hello” that Plaintiff stated in the entire call. See Mot., Ex. G. Plaintiff then did not answer another one of Defendant’s calls and never again asserted any desire not to be called regarding her credit card account. Whether Plaintiff’s request to “stop calling” was a clear and express revocation of her consent to be called is a question of fact reserved for the jury. See Bally v. First Nat’l Bank of Omaha, No. 17–10632, 2017 U.S. Dist. LEXIS 177286, at *4 (E.D. Mich. Oct. 26, 2017)(denying summary judgment motion because “[r]easonable minds could differ regarding whether [the p]laintiff clearly expressed his desire not to receive further calls from [the d]efendant”); Ruffrano v. HSBC Fin. Corp., No. 15CV958A, 2017 U.S. Dist. LEXIS 132674, at *49 (W.D.N.Y. Aug. 17, 2017)(noting that the FCC analyzes revocation as a totality of circumstances, a standard that “calls for fact finding not appropriate in a summary judgment motion”).