In Reyes v. Educational Credit Management Corporation, 2016 WL 2944294, at *3 (S.D.Cal., 2016), Judge Bashant granted summary judgment to a TCPA defendant on the basis that the Plaintiff gave express consent to be called on his cellular telephone. As to one of the calls wherein the Plaintiff gave oral consent during that call, the Court found that the Plaintiff had not complained about that call in his complaint and, therefore, it could not be considered for the first time in opposition to a motion for summary judgment.
Defendant moves for summary judgment of Plaintiff’s TCPA claim, arguing that Plaintiff gave express consent for Defendant to call his cell phone using an ATDS before the February 5, 2015 call alleged in the Complaint. (Def.’s Mot. 4:11–18.) Defendant argues that Plaintiff provided express consent through the following conversation with Defendant’s representative on July 24, 2013: “Representative: Okay, being that you only have your cell phone number for contact, can ECMC and its representatives call you on that cell phone using our automated dialer? Plaintiff: Okay. (Def.’s Mot. 4:24–5:4; Transcript of July 24, 2013 Telephone Conversation, Skerbinc Decl. Ex. E.) Additionally, Defendant argues that Plaintiff gave consent again on August 20, 2014, when he applied for rehabilitation of his student loan debt and signed a two-page document which included the following provision: I authorize the loan holder to which I submit this request (and its agents or contractors) to contact me regarding my request or my loan(s), including repayment of my loan(s), at the number that I provide on this form or any future number that I provide for my cellular telephone or other wireless device using automated telephone dialing equipment or artificial or prerecorded voice or text messages. (Def.’s Mot. 5:9–21; Financial Disclosure for Reasonable and Affordable Rehabilitation Payments, Skerbinc Decl. Ex. F.). This provision is in plain text and located immediately above the signature line. (See Skerbinc Decl. Ex. F.) In opposition, Plaintiff does not rebut Defendant’s evidence that Defendant had prior express consent to call Plaintiff using an ATDS on February 5, 2015.2 (See Pl.’s Opp’n 8:2–9:21.) Instead, Plaintiff argues that ECMC’s call to him on July 24, 2013 violated the TCPA because, even though Plaintiff gave Defendant consent to use an ATDS during that call, such consent is not retroactive. (Pl.’s Opp’n 8:2–9:21.) Plaintiff argues that shortly before the July 24, 2013 call, on May 10, 2013, he explicitly denied consent through the following conversation: Representative: If we need to contact you can ECMC and its representatives call you at your current or future cell phone using our automated dialer? Plaintiff: No. (Pl.’s Opp’n 2:1–4; Transcript of May 10, 2013 Telephone Conversation, Gallucci Decl. Ex. 1.). 1. The February 5, 2015 Call. The Court finds that there is no genuine dispute that Plaintiff provided express consent to Defendant prior to the February 5, 2015 call that forms the basis of the TCPA claim. Plaintiff makes no assertion, let alone presents any evidence, to the contrary. Although Plaintiff establishes that he refused consent during a call on May 10, 2013, see Joint Statement of Undisputed Material Facts ¶ 4, the record indicates that Plaintiff subsequently provided express consent both orally and in writing to be called on his cell phone with an ATDS, and that this consent was provided prior to the February 5, 2015 call. At minimum, Plaintiff gave Defendant express consent orally during the July 24, 2013 phone call with Defendant’s representative (Skerbinc Decl. Ex. E.) and on August 20, 2014, when he applied for rehabilitation of his debt and certified by signature that ECMC could contact him at his cell phone number. (Skerbinc Decl. Ex. F.) Plaintiff has failed to designate “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324. Accordingly, the Court finds there is no genuine dispute that ECMC had prior express consent before placing the February 5, 2015 call. ECMC’s motion for summary judgment on the TCPA claim is therefore GRANTED.