Two TCPA Decisions (Cal.) Discuss Propriety and Effect of Pursuing the Third Person Who Provided the Cellular Telephone Number to the TCPA Defendant that Resulted in Calls to the TCPA Plaintiff

Two recent California District Court decisions suggest the propriety and effect of pursuing the third party who provided the cellular telephone number in an application that turned out to be subscribed to by another. In Webb v. Healthcare Revenue Recovery Group, LLC, 2014 WL 2967559 (N.D.Cal. 2014), Judge Donato permitted a TCPA defendant to file a third party claim against the person who had provided the Plaintiff’s cellular telephone number to the defendant.

Plaintiff Jasminda Webb alleges that HRRG used an Automatic Telephone Dialing System (“ATDS”) to call her several times on her cell phone without her consent in violation of the TCPA. HRRG alleges that it was misled into calling Ms. Webb by her adult son, Arias Variste, who gave Ms. Webb’s phone numbers to a hospital where he received care. HRRG now asks the Court for leave under Fed.R.Civ.P. 14(a)(1) to implead Mr. Variste in the case as a third-party defendant for indemnity and negligent misrepresentation.

The Court avoided the issue of whether the TCPA claim permitted indemnification, and instead found that the fees incurred by the Defendant to defend the claim could be the subject of indemnification under state law.

 HRRG’s third-party complaint alleges claims for equitable indemnification and negligent misrepresentation. See Dkt. No. 37, Ex. A. Equitable indemnification is a type of implied indemnification, and California Code of Civil Procedure § 1021.6 allows a court to award attorney’s fees to a person who prevails on a claim for implied indemnity if the court finds (a) that the indemnitee through the tort of the indemnitor has been required to act in the protection of the indemnitee’s interest by bringing an action against or defending an action by a third person and (b) if that indemnitor was properly notified of the demand to bring the action or provide the defense and did not avail itself of the opportunity to do so, and (c) that the trier of fact determined that the indemnitee was without fault in the principal case which is the basis for the action in indemnity or that the indemnitee had a final judgment entered in his or her favor granting a summary judgment, a nonsuit, or a directed verdict. ¶ Cal.Code. Civ. P. § 1021.6. Thus, H RRG’s third-party complaint alleges facts that support an award of attorneys’ fees under § 1021.6 subject to the Court’s discretion. ¶ Because HRRG has established that a statute authorizing attorneys’ fees may apply to its third-party claims, and provided a declaration stating that its fees defending itself against Ms. Webb’s lawsuit have already exceeded $75,000, (Dkt. No. 45, Ex. 1), this Court has diversity jurisdiction over the proposed third-party complaint. See Galt, 142 F.3d at 1156. The Court does not reach the supplemental jurisdiction issue.

In Labau v. Cellco Partnership, 2014 WL 2987767 (E.D.Cal.), Judge England denied a Plaintiff’s request to amend its TCPA class definition because, in part, of the effect of the TCPA Defendant’s third party claim against the person who had provided Plaintiff’s cellular telephone number to the Defendant. The facts were as follows:

Plaintiff’s Complaint, filed April 30, 2012, alleges that Defendants began calling her cellular phone number with an automated telephone dialing system to collect unpaid wireless bills owed by Plaintiff’s former brother-in-law, Ovidiu Cozac (“Cozac”). Plaintiff asserts that these calls were not for “emergency purposes,” nor did Plaintiff provide her “prior express consent” to receive calls from Verizon. Pl’s. Compl., ECF No. 1, ¶¶ 10, 12 Plaintiff consequently alleges that the calls violated the TCPA. . . . ¶ Shortly after Plaintiff instituted the present law-suit, Verizon brought a third-party complaint against Cozac. ECF No. 13. Verizon asserts that prior to calling Plaintiff, Cozac purchased five iPhones through Defendants and provided Plaintiff’s phone number as his contact number for both home and work purposes. Id; see also Battinelli Decl., ¶¶ 11, 14. After Cozac failed to make payments on the accounts associated with the iPhones, Verizon called Plaintiff multiple times through October 23, 2012, about the out-standing balances. Battinelli Decl., ¶ 15. According to Verizon, it stopped calling Plaintiff as soon as it learned Cozac could not be reached at Plaintiff’s number. Id. at ¶¶ 17–18. Plaintiff brings this claim on behalf of herself and “all others similarly situated” as a proposed class. Pl.’s Compl, ECF No. 1, ¶ 13. The class originally advanced by Plaintiff purported to represent “all persons within the United States who received any telephone calls from Defendant … made through the use of any automatic telephone dialing system” in the past four years, when that person “had not previously not pro-vided [sic] their cellular telephone number to Defendant.” Id. at ¶ 14. Defendants moved to deny class certification, which this Court granted. Mem. and Order Granting Mot. to Den. Class Certificati on, ECF No. 39. The Court found that the purported class failed on both typicality and adequacy grounds. Id. at 11. Because Plaintiff was not a Verizon customer at the time of the alleged violations, the Court found that she was not typical of a class including customers. Id . at 9. Equally, because Plaintiff purported to represent customer while herself a non-customer, this Court found that Plaintiff did not meet her burden of proving adequacy of representation. Id. at 11. Plaintiff now moves to amend her complaint to change the purported class. ECF No. 40 at 2. The proposed class is as follows:   “All persons within the United States who were not customers of Defendants at the time they received a telephone call from Defendants or their agent/s and/or employee/s to said persons’ cellular telephone made through the use of an automatic telephone dialing system where said persons had not previously provided their cellular telephone number to Defendants within the four years prior to the filing of the Complaint.” Id. at 2–3 (emphasis in original).

Judge England found no basis to allow the amendment.

“An amendment is futile if it will be subject to dismissal or summary judgment.” Davis v. Astrue, 250 F.R.D. 476, 482 (N.D.Cal.2008). In the present case, it is uncontroverted that Plaintiff’s former brother-in-law Cozac misrepresented his home and work telephone numbers at the time he purchased the five Verizon cell phones in question and that he provided Plaintiff’s cell phone number instead. Compl., ECF No. 1, ¶ 8. After Cozac failed to pay his bill, Defendants called the numbers that they had on file (both the number attaching to the Verizon issued phones as well as the work and home number provided by Cozac) in reasonable, good-faith pursuit of what they were owed. After learning that Cozac could not be reached at the number he had provided, Defendants stopped calling it. Battinelli Decl., ¶¶ 17–18. ¶ The purpose of the Telephone Consumer Protection Act is to protect citizens from “invasion of privacy.” S. REP. 102–178,5,1991 U.S.C.C.A.N.1968, 1973. Assuming that any invasion of Plaintiff’s privacy occurred h ere, the culprit is not Defendants, but Plaintiff’s former brother-in-law. As such, no amendment can save Plaintiff’s complaint against Verizon from summary judgment, and therefore any amendment would necessarily be futile.