District Court (Cal.) Says Mere Passage of Time Does Not Revoke TCPA Consent in Text Message Case, But Scope of Such Consent Was a Triable Issue of Fact

Defendants argue that “the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint.” ECF No. 69 at 19. But the question of time is inapposite. Consent under the TCPA does not expire with time; instead, “[r]evocation of consent must be clearly made and express a desire not to be called or texted.” Van Patten, 847 F.3d at 1048. The Ninth Circuit concluded that Van Patten had not revoked his consent to receive further text messages. Id. Likewise, there is no question in this case that Walintukan had not yet revoked his consent when he received the text messages at issue here. Whether the messages were sent three months or three years after consent was given is not relevant.   The dispositive question is whether the subject matter of the text messages fell within the “transactional context” in which Walintukan gave consent by voluntarily providing his phone number. Id. at 1046. This Court concludes that it did not. Contrary to Defendants’ characterization, the Van Patten court did not read the text messages there as coming from a different gym or concerning a new membership; instead, the court construed the messages as an “invitation to ‘come back’ and reactivate his gym membership.” Id. As another district court has observed, “it was the Ninth Circuit’s view that the gym was contacting Van Patten about the exact same gym membership for which he initially provided his contact information.” Trenz v. On-Line Adm’rs, Inc., Case No. CV 15-08356-AB (KSx), 2017 U.S. Dist. LEXIS 199984, at *10 (C.D. Cal. Sept. 25, 2017). Likewise, Defendants’ attempts to distinguish the text messages in Van Patten on grounds that they “included an extraneous car giveaway offer” are unpersuasive. ECF No. 74 at 13. The invitation to “[e]nter for a chance to win” a vehicle was not a separate message; it was included as part of the gym’s invitation to reactivate Van Patten’s gym membership. Id. at 1041.  Here, Defendants’ text messages concerned different events by different artists at the Create Nightclub. The only connection to the transaction in which Walintukan provided his phone number was that the events were occurring at the same venue. Defendants’ statement that “there is simply no difference between a gym asking a customer to come back to the gym and a club asking a customer to come back to the club” is incorrect. ECF No. 74 at 13. “[U]nlike the gym membership in Van Patten, which contemplates an ongoing relationship by the very nature of a monthly membership system,” purchasing an event ticket “is much more discrete in nature.” Trenz, 2017 U.S. Dist. LEXIS 199984, at *10-11 (discussing servicing of a vehicle at a car dealership). Just as the Trenz court found “that the transactional context in which [the plaintiffs] gave their contact information to the [defendant] dealerships was limited to those particular service appointments and did not include future servicing of their vehicles,” this Court concludes that the transactional context in which Walintukan provided his contact information was limited to the particular event for which he was purchasing a ticket. Id. at *11. It does not include any and all future events at the same venue. Defendants have failed to meet their burden of demonstrating that Walintukan provided prior express consent to receive the two text messages at issue in this case.