District Court (Cal.) Says Clicks and Pauses in One Call is Not Enough to Plead ATDS

In Hildre v. Heavy Hammer, No. 3:20-cv-00236-L-LL, 2021 U.S. Dist. LEXIS 35294 (S.D. Cal. Feb. 24, 2021), Judge Lorenz dismissed a TCPA claim.

Here, Plaintiff received two calls from Defendants. (Compl. ¶¶ 15-16). The first call occurred on June 15, 2019. (Id. at ¶ 15). The second call occurred on December [*4]  3, 2019. (Id. at ¶ 16). Plaintiff alleges there was a pause after he answered each call. (Id. at ¶ 18). But given the isolated nature of the calls, that allegation does not raise the assertion that Defendants used an ATDS above a speculative level. See Abitbol v. Homelink, 2020 U.S. Dist. LEXIS 159469, at *9 (C.D. Cal. 2020) (“without more, one phone call and one pause do not support a shift from speculation to plausibility, as required under the pleading standard.”); Smith v. Aitima Med. Equip., Inc., 2016 U.S. Dist. LEXIS 113671, at *14-15 (C.D. Cal. 2016).2 Plaintiff also relies on an allegation that Defendants used a California phone number to mask their identity. (See Doc. No. 6, Opposition at 6). However, the Court is not convinced that is relevant to whether the ATDS claim is plausible. See Waterbury v. A1 Solar Power Inc., 2016 U.S. Dist. LEXIS 74222, at *7-8 n.3 (S.D. Cal. 2016) (noting when dismissing a TCPA claim that “whether [a defendant] or their equipment disguised their phone number is not probative of whether [the] equipment meets the definition of an ATDS under the TCPA.”) Overall, the factual allegations do not plausibly suggest Defendants used an ATDS. The Court therefore grants the motion to dismiss. Plaintiff might cure the above deficiencies. The Court therefore grants him leave to amend. See Fed. R. Civ. P. 15; Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).