District Court (Cal.) Finds that TCPA Plaintiff Consented to Receive Collection Calls on Cellular Telephone; Did Not Revoke Consent

In Hudson v. Sharp Healthcare, 2014 WL 2892290 (S.D.Cal. 2014), Judge Anello granted summary judgment to a TCPA defendant, finding that Plaintiff had consented to be called on her cellular telephone and had not revoked consent.

On September 24, 2012, Plaintiff and her minor child, S.H., went to Sharp Grossmont Hospital to receive treatment for possible food poisoning. Upon admission, Plaintiff, on behalf of herself and S.H., received and acknowledged receipt of Sharp’s Condi-tions of Admission (“COA”) paperwork including: (1) Admission Agreement for Inpatient and Outpatient Services; (2) Attestation; and (3) Notice of Privacy Practices. [Def.’s Separate Statement of Uncontro-verted Facts (“DSSUF”) Nos. 21–23.] Plaintiff executed the Attestation document, verifying her cellular telephone number ending in 5954 as her sole point of contact with Sharp. ¶ . . . Upon admission to the hospital, Plaintiff believed that both she and S.H. had active Medi–Cal coverage. However, Sharp advised Plaintiff this was incorrect. Although S.H. had coverage at that time,FN2 Plaintiff’s coverage had lapsed. ¶  After discharge that same day, Plaintiff sought to reinstate her Medi–Cal coverage, but was not imme-diately successful. In the interim, beginning on or about October 22, 2012, Sharp made a series of autodialed calls to Plaintiff’s cellular telephone number, attempting to collect payment for the treatment provided in September 2012. Plaintiff admitted at her deposition that she does not recall Sharp demanding payment from her. [Vanden Heuvel Decl., Ex. A (“Hudson Dep.”) 84:20–85:2.] Rather, the phone calls between Plaintiff and Sharp from October 2012 through January 2013 were made with the goal of obtaining Medi–Cal coverage to pay the bills. [Id. at 88:7–89:12.] ¶ On January 23, 2013, Medi–Cal notified Plaintiff that she was retroactively approved for coverage. At that time, Plaintiff informed Sharp that she had obtained coverage, and Sharp made no further calls to Plaintiff’s cellular telephone number regarding Plaintiff’s account. [See DSSUF Nos. 53–54; Hudson Dep. 84:20–85:2.] However, after January 23, 2013, and until August 24, 2013, Sharp continued to call Plaintiff regarding the outstanding balance due on S.H.’s account. [DSSUF No. 54; Sevenikar Decl., Exs. F, G.]

Plaintiff sued under the TCPA.  The District Court found that the Defendant met its burden of demonstrating prior express consent.

Here, Defendant asserts that Plaintiff provided prior express consent to call her cellular telephone number when she provided that number during the admissions process into Sharp Hospital. In support of this assertion, Defendant provides evidence of its specific written policies and procedures regarding requesting or validating patient demographics in COA paperwork, including cellular telephone numbers. [See Kiesendahl Decl. ¶¶ 4–7, 16–20.] Moreover, Defendant offers evidence that it followed those procedures with respect to Plaintiff and S.H. on September 24, 2012. [See id.] Specifically, Sharp’s Access Service Representative asked Plaintiff for her address and telephone number, and Plaintiff stated “she had no home telephone number, only a cellular telephone number.” [Id. ¶¶ 5, 18.] Then, Plaintiff orally stated that her telephone number was the number ending in 5954. [Id. ¶¶ 7, 20.] Thereafter, Plaintiff signed the COA paperwork on behalf of herself and S.H., including the Attestation. [Kiesendahl Decl., Ex. E (“Attestation”).] Plaintiff’s signature appears on the same form as her cellular telephone number, and she placed her initials next to the cellular telephone number on the form. [Id.]  ¶  Plaintiff argues that genuine issues of fact remain with respect to whether she provided her cell phone number to Sharp. She contends that her number may have been obtained by Sharp prior to her signing the Attestation form, or obtained from a source other than Plaintiff. [Opp’n at 8.] For example, Plaintiff contends that the account notes only reflect a phone number deletion, but that if she had provided her cellular telephone number, a phone number addition would have been reflected in her account notes. [Id. at 10.] Also, Plaintiff contends that she did not provide Sharp with her information on September 24, 2012, but rather, the information “autopopulated” from previously collected data or some other source, such as MediCal. [Id. at 11.] To support this, Plaintiff argues that the Attestation form does not note a change in the phone number field, and that Sharp’s representatives have no specific recollection of Plaintiff or S.H. [Id. at 11–14.]  ¶  The Court is not persuaded. Sharp has provided substantial evidence that Plaintiff provided the in-formation contained in the Attestation on behalf of herself and S.H. Moreover, her initials appear directly adjacent to her telephone number on the form. In addition, in her deposition, Plaintiff conceded that she may have provided her number to Sharp, and simply did not recall doing so. [Hudson Dep. 60:8–12, 61:10–23.] In light of this evidence, Plaintiff’s argu-ment that Defendant obtained her number from an-other source fails to create a genuine issue of material fact for trial. To defeat a motion for summary judg-ment, Plaintiff must identify “specific facts showing that there is a genuine issue for trial.” See Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. Proc. 56(e)). Plaintiff’s assertion that Defendant obtained her cellular telephone number from Medi–Cal or some other source is wholly speculative. See generally, Matsushita, 475 U.S. at 586 (establishing a genuine dispute cannot be established by metaphysical doubt as to the material facts). The record demonstrates that Plain-tiff’s cellular telephone number is not on her Medi–Cal card, and none of Sharp’s representatives has ever retrieved a cellular telephone number from Medi–Cal. [Kiesendahl Decl. ¶ 15; Seaman Decl. ¶ 10; Fransway Decl. ¶ 7.] ¶ . . .Next, the Court is not persuaded by Plaintiff’s argument that there was no prior express consent because her cellular telephone number “autopopulat-ed.” Courts have found that similar knowing releases of information are sufficient to constitute prior express consent under the FCC Orders. See, e.g., Van Patten, 2014 WL 2116602, at * 1 (finding prior express con-sent where phone number was copied by defendant onto membership agreement plaintiff signed); Kolinek v. Walgreen Co., 2014 WL 518174 (N.D.Ill. Feb.10, 2014) (finding prior express consent ten years after plaintiff provided cell phone number); Murphy v. DCI Biologicals Orlando, LLC, 2013 WL 6865772 (M.D.Fla. Dec.31, 2013) (finding prior express consent two years after plaintiff provided cell phone number). Accordingly, a prior knowing release to Sharp is sufficient to establish prior express consent in this case.

The District Court found that the calls were within the scope of the consent given in the admission paperwork.

The Court concludes that the subject calls were within the scope of consent. Plaintiff provided her cellular telephone number as the point of contact regarding the care and treatment rendered to herself and S.H. on September 24, 2012. Defendant then called Plaintiff at the number provided regarding Medi–Cal coverage or payment for medical bills associated with her and S.H.’s hospital visits. Regardless of what Plaintiff may have believed regarding Sharp’s reason for having her cellular telephone number, the Court finds that the calls were directly related “to the product or service for which the number was provided.” See Olney, 2014 WL 1747674, at *7 ¶  Plaintiff cites two cases holding that prior express consent under the TCPA does not include consent to receiving marketing calls or materials. [Opp’n at 14 (citing Connelly v. Hilton Grant Vacations, LLC, 2012 WL 2129364 (S.D.Cal. Jun.11, 2012); Carlson & Nevada Eye Care Prof’ls, 2013 WL 2319143 (D.Nev. May 28, 2013)).] Here, however, Defendant called Plaintiff regarding her medical billing, not for mar-keting purposes. As such, these cases are inapposite. Plaintiff also relies, again, on Mais v. Gulf Coast Collection Bureau, Inc., which, as discussed previ-ously, is not binding on this Court. ¶  The Court finds there is no genuine issue of material fact as to the relation between the service provided and the purpose of Defendant’s phone calls.

The District Court found that the Plaintiff had not revoked prior express consent.

The TCPA does not expressly allow consumers to revoke prior express consent. See 47 U.S.C. § 227; In the Matter of Rules and Regulations Implementing the Telephone Consumer Protection Act of 1991, 27 F.C.C.R. 15391, 15394 ¶ 8 (Nov. 26, 2012) (noting text nor legislative history of the TCPA directly addresses circumstances where prior express consent is deemed revoked); Gutierrez v. Barclays Grp., 2011 WL 579238, at *4 (S.D.Cal. Feb.9, 2011). However, courts have recognized that consumers have the right to revoke consent, and may do so orally. See Munro v. King Broadcasting Co., 2013 WL 6185233, at *3 (W.D.Wash. Nov.26, 2013) (internal citations and quotations omitted); Gutierrez, 2011 WL 579238, at *4. ¶  Defendant argues that Plaintiff never expressly revoked her consent in any phone calls with its representatives. [Reply at 6.] Moreover, Defendant argues that Plaintiff never requested that her number be removed from the autodialer or stated that she did not wish to receive future calls on her cellular telephone number. [Id.; see also Sevenikar Decl., Ex. G.] Plaintiff does not dispute that she never stated words to the effect of “Don’t call me on this cell phone anymore!” [Opp’n at 16.] Instead, Plaintiff contends that through “mutual agreement” with Sharp representatives, she effectively revoked any consent she may have given. [Id. at 17.] ¶

As to her own account, the District Court found no revocation or, if there was revocation, that there were not calls after revocation.

From October 22, 2012 to January 21, 2014, Sharp made 13 autodialed calls regarding Plaintiff’s account, account number 82017916. [Contact Trace Record.] Plaintiff contends that she revoked her con-sent to be called during a January 23, 2013, conversation with Sharp. The record of the phone call, however, says otherwise. During the call, Sharp’s agent acknowledged that Plaintiff’s Medi–Cal insurance was reinstated without a Share of Costs and that Sharp no longer had a need to contact her by phone regarding the bill. However, the agent told Plaintiff that she may receive something in writing-or a phone call-if any issues arose in processing the Medi–Cal payment on her account. [Sevenikar Decl., Ex G.] Plaintiff did not request not to be called, and did not otherwise object to the information provided by Sharp’s agent. Thus, no evidence supports Plaintiff’s claim that the parties reached a mutual agreement whereby Sharp would stop calling Plaintiff.  ¶  Moreover, even assuming that this communication constituted a proper revocation of consent, the record demonstrates that Defendant did not place any future calls to Plaintiff’s cellular telephone number regarding her account. Defendant’s Contact Trace record shows that all calls made after January 23, 2013 pertained to S.H.’s account number. [See Contact Trace Record.] Thus, the Court finds that no genuine issues of fact remain with regard to the propriety of any calls made to Plaintiff’s cellular telephone number regarding her account.

As to her child’s account, the District Court found no credible evidence of revocation.

On April 17, 2013, Plaintiff answered an autodi-aled call from Sharp regarding S.H.’s account. [Id.] The representative informed Plaintiff there was an appeal on the account related to the unpaid Share of Costs, which could take 45 days to resolve. [Id.] The agent asked whether Plaintiff had any questions, and Plaintiff said, “no.” [Id.] Plaintiff contends that she and Sharp’s agent agreed that Plaintiff should be taken off the dialer. [Opp’n at17.] However, in reviewing the conversation, the Court finds this was not the case. Although the representative indicated she did not think Sharp should be calling Plaintiff, the representative merely stated she would send an email to see if Plaintiff could be taken “off the dialer.” [Sevenikar Decl., Ex G.] There is no evidence of any agreement to actually remove Plaintiff from the dialer, nor did Plaintiff ask to be removed from the dialer.  ¶  Based on its review of the relevant phone conversations, the Court finds that no issues of fact remain with regard to whether Plaintiff revoked her consent to receive phone calls from Sharp.FN7 Plaintiff accepted and returned Sharp’s phone calls to discuss the details of the two accounts, and engaged in a cooperative dialogue with Sharp regarding payment on the accounts. There is no evidence that Plaintiff demonstrated any unwillingness—through words or conduct—for Sharp to continue calling her cellular telephone number to obtain payment. Although the Court recognizes that Sharp agents believed Plaintiff should not have been called, those agents merely indicated they would “send an email” or “suppress calls” for a period of time. [Sevenikar Decl ., Ex. G.] Plaintiff cannot rely on conclusory allegations of mutual agreement to defeat the instant motion. See Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir.1986). She must designate specific facts in the record which demonstrate a genuine issue for trial. See id. The Court finds that she has failed to do so.