District Court (Cal.) Finds that “Called Party” Under TCPA Does Not Turn on Subscriber Status, But on Whether Plaintiff was a “Regular User” of the Cell Phone and Whether the Caller Was Trying to Reach Him by Calling that Phone

In Onley v. Job.com, Inc., 2013 WL 5476813 (E.D.Cal. 2013), Judge O’Neill found TCPA standing notwithstanding the fact that the Plaintiff was not the subscriber of the cell phone. Plaintiff Peter Olney sued Defendant Job.Com, complaining that Job.com used an “automatic telephone dialing system” (“ATDS”) to call Plaintiff’s cellular telephone in an effort to sell or solicit its services without Plaintiff’s “prior express consent,” in violation of the TCPA.  The Court found that the Plaintiff’s non-subscriber status was no impediment to TCPA standing.

In their Reply, Third Party Defendants argue that Plaintiff’s own AT & T Wireless Statement shows that the telephone number at issue in this case is registered to Plaintiff’s wife, Jamey Olney, not to Plaintiff. According to Third Party Defendants, this fact alone is sufficient to confirm that Plaintiff does not have standing under the TCPA. Doc. 58 at 5. As discussed above, the extrinsic evidence submitted by Third Party Defendants, including Plaintiff’s AT & T statements produced in discovery, will not be considered in deciding this motion. Third Party Defendants’ argument is also wrong as a matter of law. As Plaintiff points out in Sur–Reply, this very issue was recently addressed in Manno v. Healthcare Revenue Recovery Group, LLC, 289 F.R.D. 674, 682 (S.D.Fla.2013). There, defendants argued Plaintiff did not have standing under the TCPA as a “called party” because the cellular number in question was registered in the name of his wife. The district court rejected this argument after reviewing numerous cases, finding instead that:   . . .a plaintiff’s status as the “called party” depends not on such technicalities as whether he or she is the account holder or the person in whose name the phone is registered, but on whether the plaintiff is the regular user of the phone and whether the defendant was trying to reach him or her by calling that phone.  Id. at 683. ¶  The cases cited by Third Party Defendants do not undermine the reasoning in Manno. In one such case, Guttierez v. Barclays Group, 2011 WL 579238 (S.D.Cal. Feb. 9, 2011), plaintiffs were husband and wife. The husband applied for a credit card account from the defendant, listing both his own cellular telephone number as well as his wife’s. Id. at * 1. When plaintiffs failed to make timely payments on the account, defendant began making collection calls to both telephone numbers. Id. Plaintiffs sued for violations of the TCPA. Id. Defendant argued, among other things, that the wife lacked standing under the TCPA because she was not a “called party.” Id. at * 4. Defendant maintained that because the credit card account belonged to the husband, the wife was not the “intended recipient of the call.” Id. The district court rejected this argument, finding that “the TCPA is intended to protect the telephone subscriber, and thus it is the subscriber who has standing to sue for calls made to that number.” Id. at *5. While Gutierrez may stand for the proposition that a telephone subscriber may have standing to sue for calls made to his or her line even if not the intended recipient of the calls, Gutierrez did not examine the inverse proposition: whether a user of a telephone line, even if not the subscriber, has standing to sue if he or she is the called party. Manno addressed just that issue, finding such a user does have standing under the TCPA.