Opinion
No. C-06-4297 MMC.
August 21, 2008
Before the Court is defendant Cingular Wireless LLC's ("Cingular") Motion for Summary Judgment or, in the Alternative, Partial Summary Judgment ("Motion"), filed June 20, 2008. Plaintiff has filed opposition, to which Cingular has filed a reply, and to which reply plaintiff was permitted, by order issued concurrently herewith, to file a sur-reply. Having considered the papers filed in support of and in opposition to the Motion, the Court finds the matter appropriate for resolution without oral argument, see Civil L.R. 7-1(b), and rules as follows.
1. Cingular has presented undisputed evidence that, contrary to the allegations in plaintiff's Second Amended Complaint ("SAC"), (see, e.g., SAC ¶¶ 1, 5), Cingular, in July 2005, did not effect a "change in policy" by which Cingular began charging customers for voicemail retrieval. (See Decl. of Jacqueline Jackson (Cingular's Product Manager for Voicemail) ¶¶ 2, 5 (attesting that Cingular "did not change any of its policies related to billing customers for voicemail retrieval calls or customers' calls to their own Cingular mobile numbers . . . in or around July 2005").) Accordingly, Cingular is entitled to summary judgment to the extent plaintiff's claims are based on an asserted change in policy.
Plaintiff was granted leave to file his SAC after Cingular's Motion had been fully briefed. The parties' briefing indicates, however, that the arguments set forth in such briefing apply to the SAC as well. (See, e.g., Mot. at 11 n. 2 (stating Cingular "is entitled to judgment on [p]laintiff's claims, regardless of the outcome of the motion to amend"); Opp'n at 11:5-7 (identifying plaintiff's "core premise" in the action by citation to portions of SAC).)
Accordingly, plaintiff's Administrative Motion, filed July 22, 2008, in which plaintiff suggests the Motion is "moot as a matter of law," (see Pl.'s Admin. Mot. at 1:13), and requests, inter alia, an order directing the parties to confer regarding a briefing schedule for a future motion for summary judgment, (see id. at 3:4-9), is hereby DENIED.
2. To the extent plaintiff now augments his breach of contract claim by the assertion that Cingular breached the terms of the parties' contract even in the absence of a policy change, the claim likewise fails. Contrary to plaintiff's argument that the contract "requires that voicemail retrievals should be treated as free mobile-to-mobile minutes and not as standard airtime minutes," (see Opp'n at 11:5-7) (emphasis in original), the contract makes clear that calls to retrieve voicemail qualify as "airtime" and are subject to charges. In particular, under the heading "CHARGES AND DISPUTES," the contract expressly provides: "Charges include, without limitation, airtime." (See Decl. of Beth O'Neal Arnese ("Arnese Decl.") Ex. A at 24.) Under the heading "OTHER IMPORTANT INFO," the contract further provides: "Airtime minutes apply when . . . Calling . . . voicemail." (See id. at 5.)
The parties agree that mobile-to-mobile minutes are not subject to charges under the terms of the contract at issue.
The complete provision, which is set off by a bullet point, reads:
"Airtime minutes apply when . . .
Call 411 (up to $1.50 charge per call).
Calling toll-free numbers (800, 866, etc.). Incoming calls,
outgoing calls, long distance calls and voicemail."
(See Arnese Decl. Ex. A at 5.) Although the punctuation and grammar are less than optimal, the meaning is clear.
The former provision appears in a document titled "Wireless Service Agreement" and the latter provision appears in a document titled "Welcome Kit." The parties do not dispute each of said documents constitutes part of the parties' contract.
Additionally, in specifying how the length of a call is calculated, the contract provides that "Chargeable Time begins for outgoing calls when you press SEND" and "ends after you press END," cautions that such chargeable time also "may include time for [Cingular] to recognize that only one party has disconnected from the call, time to clear the channels in use, and ring time," (see id. at 24), and, immediately thereafter, reminds the subscriber that "Chargeable Time may also occur from other uses of [Cingular] facilities, including by way of example, voicemail deposits and retrievals, and call transfers," (see id. (emphasis added)).
The Court finds unpersuasive plaintiff's argument that the terms of the Rate Plan Brochure provide an exception for voicemail retrieval where the subscriber dials his own mobile telephone number. In support of such argument, plaintiff relies on the following statement in the Rate Plan Brochure: "Mobile to Mobile Minutes may be used when directly dialing or receiving calls from any other Cingular phone number from within your calling area." (See Decl. of Justin P. Karczag Ex. D.) Although plaintiff has presented evidence that, when a customer accesses voicemail by dialing their own Cingular phone number, the phone call is routed through a "pilot number," i.e., an "other Cingular phone number," (see, e.g., Decl. of Nathan Lowery Ex. M at 21:24-22:25; 30:5-15), plaintiff has failed to show that, by dialing his own Cingular phone number, he "directly dialed" the pilot number. Further, in a glossary of terms, under "UNLIMITED MOBILE TO MOBILE MINUTES," the contract explains that mobile-to-mobile minutes are "[c]alls to and from other local Cingular customers in your mobile to mobile calling area." (See Arnese Decl. Ex. A at 6 (emphasis added).) Plaintiff does not suggest, nor could he, that dialing his own mobile telephone number is calling an "other Cingular customer."
Contrary to Cingular's argument, plaintiff's reference to language in the Rate Plan Brochure does not raise a new claim. The Rate Plan Brochure is expressly incorporated by reference in the "Wireless Service Agreement" plaintiff alleges Cingular to have breached. (See Arnese Decl. Ex. A at 23 (providing Agreement "includes and incorporates additional provisions contained in a separate rate plan or other brochure(s) describing the services to which [plaintiff] subscribed (`Rate Plan Brochure')")).
Plaintiff's reliance on oral representations attributed to Cingular employees is unavailing. Such evidence is inadmissible where, as here, the contract at issue is integrated, (see Arnese Decl. Ex. A at 26 (providing Wireless Service Agreement and specified other written documents "make up the complete agreement between [plaintiff] and Cingular, and supersede any and all prior agreements and understandings relating to the subject matter of this Agreement")), and the oral representations are offered to support an interpretation to which the contract terms are not reasonably susceptible, see Casa Herrera, Inc. v. Beydoun, 32 Cal.4th 336, 343 (2004) (holding oral or written extrinsic evidence may not be introduced "to vary, alter or add to the terms of an integrated written instrument," but only "to explain the meaning of a written contract . . . [if] the meaning urged is one to which the written contract terms are reasonably susceptible") (internal quotations and citations omitted); Estate of Gaines, 15 Cal.2d 255, 264 (1940) (holding California's parole evidence rule constitutes substantive, not procedural, law).
Accordingly, Cingular is entitled to summary judgment on plaintiff's claim for breach of contract, as well as plaintiff's claims for unjust enrichment and breach of the covenant of good faith and fair dealing derivative therefrom.
3. In light of the Court's finding herein that the contract unambiguously permits Cingular's categorization of minutes used to access voicemail as "Chargeable Minutes" or "Airtime Minutes" rather than "Mobile to Mobile Minutes," plaintiff's remaining claims for unfair competition, violation of the Consumers Legal Remedies Act, and violation of the Federal Communications Act, each of which is premised on a misrepresentation or omission with respect to such categorization, fail for want of an underlying wrongful act.
4. The Court's reasoning herein applies equally to defendants AT T Mobility, LLC, and AT T Mobility Corporation, each of whom was named in the SAC but has not yet appeared, and, accordingly, the Court likewise will grant summary judgment in favor of said defendants. See Columbia Steel Fabricators, Inc. v. Ahlstrom Recovery, 44 F.3d 800, 803 (9th Cir. 1995)) (affirming summary judgment in favor of nonappearing defendant, where plaintiff, in response to motion filed by defendant who had appeared, had "full and fair opportunity to brief and present evidence" on dispositive issue that controlled determination with respect to nonappearing defendant).
CONCLUSION
For the reasons set forth above,1. Cingular's motion for summary judgment is hereby GRANTED; and
2. Summary judgment in favor of AT T Mobility, LLC, and AT T Mobility Corporation is hereby GRANTED.
The Clerk shall close the file.