In Springer v. Fair Isaac Corp., 2015 WL 7188234, at *5 (E.D.Cal., 2015), the Court addressed what affirmative defenses may be pleaded in a TCPA action. The Court allowed the affirmative defense of “good faith” to proceed.
Defendant’s third affirmative defense of reasonable and good faith states: “Defendant’s actions were taken in good faith, in reliance upon information provided by its customers and others, and with a reasonable belief that such actions were legal, appropriate and necessary. The conduct alleged to be in violation of a statute, if any such conduct occurred, was purely unintentional, and occurred, if at all, despite Defendant’s reasonable and appropriate efforts to avoid any such violation.” Plaintiff moves to strike this affirmative defense on the grounds that good faith affirmative defenses are not applicable to the TCPA because it is a strict liability statute. (ECF No. 15-1 at 5.) Defendant disagrees, arguing that a good faith affirmative defense that claims a prior express consent does apply to the TCPA. (ECF No. 19 at 5.) The Court agrees with Defendant and will allow the third affirmative defense to stand. The TCPA was enacted to combat the proliferation of automated telemarketing calls to private residences. Scatterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009) (reversing the district court’s decision on other grounds). To prove a claim under the TCPA, a plaintiff must show that (1) the defendant called a cellular telephone number, (2) using an automatic telephone dialing system, (3) without the recipient’s prior consent. 47 U.S.C. § 227(b)(1). The TCPA specifically exempts a caller from liability if the caller has received “prior express consent” from the recipient to be called. 47 U.S.C. § 227(b)(1)(A). Express consent is “[c]onsent that is clearly and unmistakably stated.” Black’s Law Dictionary 323 (8th ed. 2004). The Ninth Circuit has not addressed whether general good faith defenses may be raised in a TCPA claim. Olney v. Job.com, Inc., No. 1:12-cv-01724-LJO-SKO, 2014 WL 1747674, at *8 (E.D. Cal. May 01, 2014) (“The parties have cited no authority from the Ninth Circuit that addresses whether TCPA is a strict liability statute, and the Court is unaware of any.”). However, courts across the Ninth Circuit have allowed for TCPA defendants to raise prior express consent defenses, which is a form of good faith defense. Scatterfield, 569 F.3d at 955; Reardon v. Uber Technologies, Inc., No. 14-CV-05678-JST, 2015 WL 4451209, at *6 (N.D. Cal. July 19, 2015); Chyba v. First Financial Asset Management, Inc., No. 12-cv-1721, 2014 WL 1744136, at *10 (S.D. Cal. Apr.30, 2014); Robbins v. Coca-Cola-Co., No. 13-cv-132, 2013 WL 2252646, at *2 (S.D. Cal. May 22, 2013). Here, Defendant’s third affirmative defense alleges the possibility that it only called Plaintiff in good faith reliance and belief “upon information provided.” (ECF No. 9 at 9.) The Court interprets this statement to mean the Defendant is claiming the prior express consent exception to the TCPA.3 (ECF No. 19.) Because Defendant’s good faith defense is based on its assertion that there was prior express consent, the Court will allow Defendant to raise a prior express consent good faith defense. Scatterfield, 569 F.3d at 955 (recognizing the affirmative defense claiming prior express consent). However, the Court’s ruling is not to be read as permitting a general good faith defense under the TCPA. Defendant’s defense is only permitted in so far as Defendant intends to argue that it had a good faith belief that prior express consent existed. As always, Defendant bears the burden of proof and must produce sufficient facts showing Plaintiff’s prior express consent to be contacted. If discovery doesn’t support this affirmative defense, the Court is receptive to a subsequent motion. Defendant is allowed to raise a good faith defense asserting prior express consent because such a defense is applicable to the TCPA. Therefore, the Court denies Plaintiff’s Motion to Strike Defendant’s third affirmative defense.
But, the District Court struck the affirmative defense of failure to mitigate, but only where the Plaintiff alleges no actual damages.
Defendant’s sixteenth affirmative defense of duty to mitigation damages states: “Plaintiff failed and neglected to use reasonable care to protect himself and to avoid, minimize and/or mitigate his alleged injury and/or damages.” Plaintiff moves to strike this affirmative defense on grounds that one does not have a duty to mitigate damages under the TCPA. (ECF No. 15-1 at 10.) Defendant argues in its Opposition that while there is no duty to mitigate statutory TCPA damages, one does have a duty to mitigate actual damages. (ECF No. 19 at 5.) The Court agrees with Plaintiff and will strike the sixteenth affirmative defense. Plaintiff argues that courts have found a plaintiff does not have a duty to mitigate damages under Section 227 of the TCPA. (ECF No. 15-1 at 10–11 (citing Powell v. West Asset Mgmt., 773 F. Supp. 2d 761, 764 (N.D. Ill. 2011)).) Defendant responds that although failure to mitigate is not a defense to the award of statutory damages, it may be a defense to a claim of actual damages. (ECF No. 19 at 8–9 (citing Glover v. Mary Jane M. Elliott, P.C., No. 1:07-CV-648, 2007 WL 2904050, at *3 (W.D. Mich. Oct. 2, 2007)).) The Ninth Circuit has not taken a position on whether a plaintiff carries a duty to mitigate damages under the TCPA5 , however the Court finds that the weight of available authority indicates that there is no duty to mitigate statutory damages in these cases. See e.g., Holtzman v. Turza, No. 08 C 2014, 2010 WL 3076258, at *5 (N.D.Ill. Oct. 29, 2010); Fillichio v. M.R.S Associates, Inc., No. 09–612629–CIV, 2010 WL 4261442, at *5 (S.D.Fla. Oct. 19, 2010). “The TCPA does not expressly include a duty of callees to mitigate the statutorily-prescribed damages by answering or returning telephone calls received from automatic dialing machines and informing the calling entity that it has the incorrect number.” Powell v. W. Asset Mgmt., Inc., 773 F. Supp. 2d 761, 764 (N.D. Ill. 2011). Therefore, the Court is not inclined to apply such a duty. Plaintiff stated in his Complaint that he is seeking “only damages and injunctive relief for recovery of economic injury.” (ECF No. 1 at ¶ 31.) Plaintiff further clarified in his Reply that he is “not seeking actual damages, but rather fixed statutory damages and injunctive relief.” (ECF No. 20 at 7.) Because Plaintiff does not seek actual damages, only statutory damages, Defendant’s sixteenth affirmative defense does not apply. Therefore, the Court grants Plaintiff’s Motion to Strike Defendant’s sixteenth affirmative defense without leave to amend.