In Jara v. GC Services Ltd., Partnership, et. al. 2018 WL 2276635 (C.D.Cal.), 3 (C.D.Cal., 2018), Judge Wright found a triable issue of fact as to whether a debtor’s revocation of TCPA consent on one account was sufficient to revoke consent on all accounts held by the debt collector.
Mrs. Jara was the sole authorized user on her JC Penny, Home Design Furniture, and Lowe’s credit accounts. (Pl.’s Statement of Gen. Disputes, No. 8.) GC Services argues that each time it called Mrs. Jara it was calling about a different account, and that each time she revoked consent for a specific account, it stopped calling about that account. (Opp’n to Pl.’s Mot. Summ. J. 7–9.) In response, Mrs. Jara contends that she revoked consent for all accounts when GC Services called her on several occasions. . .Here, the GC Services representative, confirmed, on at least one occasion, that Mrs. Jara never wanted GC Services to call her again on the number she provided. (Pl.’s Statement of Gen. Disputes, No. 17; Chami Decl., ¶ 6, Ex. D.) This evidence is sufficient for a reasonable jury to find that GC Services “knew or ha[d] reason to know that [Mrs. Jara] [was] no longer willing” to receive calls on any of her accounts. See Dixon, 2016 WL 3456680, at *3. Her references to “debts” and “accounts” combined with her request that GC Services stop calling her create issues of fact regarding whether she revoked consent for all three of her accounts. See Herrera, 2017 WL 6001718, at *4 (collecting cases denying summary judgment where fact issue existed regarding revoking consent); Zondlo v. Allied Interstate, LLC, 290 F. Supp. 3d 296, 305 (M.D. Penn. 2018) (holding that fact issue precluded summary judgment where consumer arguably revoked consent as to one account, but it was unclear whether consumer revoked for remaining accounts being collected by same debt collector). The Court DENIES both parties’ Motions to the extent they seek summary adjudication of Mrs. Jara’s TCPA claim.
As to the other co-plaintiffs claim, however, Judge Wright found a triable of fact whether the wife had the authority to revoke consent for her husband.
The TCPA does not address whether a person’s husband or wife can revoke consent on their behalf, but courts have looked to the common law of consent in interpreting the scope of the TCPA. See, e.g., Osorio, 746 F.3d at 1252–53. To support Mr. Jara’s position, he cites Gutierrez v. Barclays Group, No. 10cv1012 DMS (BGS), 2011 WL 579238, at *3 (S.D. Cal. Feb. 9, 2011). In Gutierrez, the district court held that a husband had “common authority” over his wife’s cellular phone, such that he could give “prior express consent” to be contacted, as used in the TCPA. Id. The Gutierrez court analogized to Supreme Court precedent in the criminal context allowing officers to search an area where a third party has common authority over the area sufficient to provide consent. Id. (citing United States v. Matlock, 415 U.S. 164, 171 (1974)). The court did not address whether this reasoning would also apply to revoking consent. See id. Mr. Jara also cites Target National Bank v. Welch, where the district court issued an opinion on appeal from a bankruptcy court’s order. No. 8:15-cv-614-T-36, 2016 WL 1157043, at *2 (M.D. Fla. Mar. 24, 2016). The court concluded, without much analysis, that a husband could revoke his wife’s prior express written consent because they were agents for each other. Id. at *5 (“If Mr. Ward were acting as Ms. Ward’s agent for the purpose of reaching her at that cellular telephone number, then it logically follows that he certainly could revoke Ms. Ward’s prior express consent to be called at that number.”). On this finding, the district court affirmed the bankruptcy court’s ruling. Id. at *6. GC Services does not provide any contrary authority to support its position that Mrs. Jara could not revoke her husband’s consent to be called on their shared number; instead, it distinguishes Target and Gutierrez. Gutierrez is not applicable, GC Services argues, because it only addressed whether a spouse could give prior express consent, not whether a spouse could revoke consent. (Def.’s Reply 3, ECF No. 56.) This is true. However, the reasoning the court employed in finding that a spouse with common authority over a phone could provide consent applies equally to revoking consent. See Gutierrez, 2011 WL 579238, at *3; c.f. Zondlo, 290 F. Supp. 3d at 305. It would be logically inconsistent to allow the spouse authority for one, but not the other. Mr. Jara declares: “I know that when [GC Services] called us, [GC Services] sometimes wanted to speak to [Mrs. Jara], and sometimes [GC Services] wanted to speak with me. Because my wife is with the phone more often, she is completely free to speak for me when talking to GC Services.” (Arnoldo Jara Decl. ¶¶ 6–7, ECF No. 31.) He also claims that he would have communicated the same things had GC Services reached him. (Id. ¶ 8.) Whether Mr. Jara’s testimony is sufficient to establish Mrs. Jara as his agent for purposes of revoking consent is a question for the jury. See Osorio, 746 F.3d at 1253–54 (holding question of fact where housemate may have given authority to cohabitant to consent to calling shared phone number); see also Gutierrez, 2011 WL 579238, at *3. On some of the occasions GC Services called, it initially requested to speak with Mr. Jara, and then pivoted when Mrs. Jara explained that he was away. The jury could interpret these facts to show Mrs. Jara revoked consent for Mr. Jara’s account because GC Services initially placed the call intending to reach Mr. Jara. Accordingly, the Court DENIES both parties’ motions for summary judgment with respect to Mr. Jara’s TCPA claim because there remain factual disputes regarding whether Mrs. Jara acted as Mr. Jara’s agent in revoking consent.