Opinion
CIV. NO. 2:15-1428 WBS AC
02-22-2017
VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiffs, v. WILSHIRE COMMERCIAL CAPITAL LLC d/b/a "Wilshire Consumer Credit," a California limited liability company, Defendant.
MEMORANDUM AND ORDER RE: MOTION FOR SUMMARY JUDGMENT
Defendant Wilshire Commercial Capital moves for summary judgment against plaintiffs Verina Freeman and Valecea Diggs, upon the ground that plaintiffs do not have Article III standing for their putative class action under the Telephone Consumer Protection Act ("TCPA").
The Ninth Circuit's opinion in Van Patten v. Vertical Fitness Group, No. 14-55980, 2017 WL 460663, --- F.3d ---- (9th Cir. 2017) is dispositive. The Van Patten court found that, in passing the TCPA, "Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm" through the TCPA because such calls, "by their nature, invade the privacy and disturb the solitude of their recipients." Id. at *4. Thus, a plaintiff "need not allege any additional harm" other than "unsolicited contact" because "a violation of the TCPA . . . [is] sufficient to confer Article III standing." Id.
This case is substantially similar. Plaintiffs bring a claim against defendant for violation of the TCPA for defendant's unsolicited calls to plaintiffs "using an ATDS or an artificial or prerecorded voice." (First Am. Compl. ¶¶ 23, 52-53 (Docket No. 40)); see 47 U.S.C. § 227(b)(1)(A). At oral argument, defense counsel argued Van Patten's Article III standing discussion was dicta. However, after specifically requesting the parties to brief the Article III standing issue the Ninth Circuit stated unequivocally that, "We hold that Van Patten alleged a concrete injury in fact sufficient to confer Article III standing." Van Patten, 2017 WL 460663, at *4 n.2, *5. Plaintiffs' TCPA claim is a sufficient concrete injury to confer Article III standing.
IT IS THEREFORE ORDERED that defendant's motion for summary judgment be, and the same hereby is, DENIED. Dated: February 22, 2017
/s/_________
WILLIAM B. SHUBB
UNITED STATES DISTRICT JUDGE