Freeman et al v. Wilshire Commercial Capital L.L.C.

MOTION for SUMMARY JUDGMENT

E.D. Cal.January 9, 2017

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS MOLINO & BERARDINO, A Professional Law Corporation Anthony A. Molino, Esq., [SBN 156661] molino@molinolawfirm.com Steven R. Berardino, Esq., [SBN 075820] sberardino@molinolawfirm.com Michelle Cooper, Esq., [SBN 093668] mcooper@molinolawfirm.com Benjamin J. Carter, Esq., [SBN 287462] bcarter@molinolawfirm.com 4751 Wilshire Boulevard, Suite 207 Los Angeles, California 90010-3838 Telephone (323) 692-4010 Facsimile (323) 692-4015 Attorneys for Defendant, Wilshire Commercial Capital, LLC UNTIED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiff(s), v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:15-CV-01428-WBS-AC [CLASS ACTION] NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS [Filed concurrently with Memorandum of Points and Authorities, Declarations of James Eyraud and Benjamin Carter, Exhibits; Proposed Judgment] Date/Time: February 6, 2017/ 1:30 p.m. Courtroom: 5 Assigned to: Hon. William B. Shubb TO ALL PARTIES, VERINA FREEMAN AND VALECEA DIGGS, AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February 6, 2017 at 1:30 p.m., or as soon Case 2:15-cv-01428-WBS-AC Document 42 Filed 01/09/17 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS thereafter as the matter may be heard in Courtroom 5 of the above-entitled Court located at 501 I Street, Sacramento, CA 95814, Defendant Wilshire Commercial Capital, LLC (“WCC”) will, and hereby does, move for summary judgment as Plaintiffs VERINA FREEMAN and VALECEA DIGGS do not have concrete and particularized injuries and thus lack the requisite standing pursuant to Article III of the U.S. Constitution to bring suit. The motion is brought pursuant to Federal Rule Civil Procedure 12(h)(3) and 56, and will be based upon this Notice, the attached Memorandum of Points and Authorities, the attached Declarations of Benjamin Carter and James Eyraud, the court’s file and records in this matter and upon such further oral and documentary evidence as may be presented at or before the hearing the hearing of this Motion. DATED: January 9, 2017 MOLINO & BERARDINO, APLC By: s/Benjamin J. Carter Attorney for Defendant, WILSHIRE COMMERCIAL CAPITAL, LLC. ERRONEOUSLY SUED AS WILSHIRE CONSUMER CREDIT Case 2:15-cv-01428-WBS-AC Document 42 Filed 01/09/17 Page 2 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS PROOF OF SERVICE (1013(a), 2015.5 C.C.P.) STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am a resident of the county aforesaid; I am over the age of eighteen years and my business address is 4751 Wilshire Boulevard, Suite 207, Los Angeles, California 90010. On January 9, 2017 I served the within NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS on interested parties: X Electronically, pursuant to the CM/ECF system consent to electronic service through the court’s transmission facilities. The Court’s CM/ECF system sends an e-mail notification of the filing to the parties and counsel of record listed herein who are registered with the Court’s CM/ECF System. SEE ATTACHED SERVICE LIST I declare under penalty of perjury that the foregoing is true and correct under the law of the United States of America. Executed this 9th day of January 2017 Los Angeles, California. ___________________________ Beverly Langworthy Case 2:15-cv-01428-WBS-AC Document 42 Filed 01/09/17 Page 3 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS SERVICE LIST Freeman v. Wilshire Commercial Capital Case No.: 2:15-cv-01428-WBS-AC Bryan Kemnitzer, Esq. Elliot Conn, Esq. Kemnitzer, Barron & Krieg, LLP 445 Bush St., 6th Floor San Francisco, CA 94108 bryan@kbklegal.com elliot@kbklegal.com Scott D. Owens, Esq. Scott D. Owens, P.A. 3800 S. Ocean Drive, Suite 235 Hollywood, FL 33019 scott@scottdowens.com Case 2:15-cv-01428-WBS-AC Document 42 Filed 01/09/17 Page 4 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS MOLINO & BERARDINO, A Professional Law Corporation Anthony A. Molino, Esq., [SBN 156661] molino@molinolawfirm.com Steven R. Berardino, Esq., [SBN 075820] sberardino@molinolawfirm.com Michelle Cooper, Esq., [SBN 093668] mcooper@molinolawfirm.com Benjamin J. Carter, Esq., [SBN 287462] bcarter@molinolawfirm.com 4751 Wilshire Boulevard, Suite 207 Los Angeles, California 90010-3838 Telephone (323) 692-4010 Facsimile (323) 692-4015 Attorneys for Defendant, Wilshire Commercial Capital, LLC UNTIED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiff(s), v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:15-CV-01428-WBS-AC [CLASS ACTION] MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS [Filed concurrently with Notice of Motion, Declaration of James Eyraud; Declaration of Benjamin Carter, Exhibits; and Proposed Judgment] Date/Time: February 6, 2017/ 1:30 p.m. Courtroom: 5 Assigned to: Hon. William B. Shubb //// //// Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 1 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________________________________________________ i TABLE OF CONTENTS PAGES I. INTRODUCTION ………………………………………………..….2 II. REQUIREMENTS FOR ARTICLE III STANDING…………..…….3 III. A LACK OF ARTICLE III STANDING MAY BE CONSIDERED AT ANY TIME……………………………………………………….5 IV. AUTHORITY FOR SUMMARY JUDGMENT……………………..6 V. STATEMENT OF UNDISPUTED MATERIAL FACTS……………7 VI. WHILE THERE WAS NO TOLLING OF THE CLASS CLAIM, AT BEST, THERE WAS TOLLING OF INDIVIDUAL CLAIMS...11 VII. REGARDLESS OF TIME PERIOD, A LACK OF CONCRETE INJURY BUT FOR THE TCPA…………………………………….11 VIII. CONCLUSION……………………………………………………...14 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 2 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________________________________________________ ii TABLE OF AUTHORITIES Cases Pages American Pipe and Construction Co. v. State of Utah 414 U.S. 538 (1974)………………………………………………………..11 Anderson v. Liberty Lobby, Inc. (1986) 477 US 242, 248, 106 S.Ct. 2505, 2510……………………………..7 Arizonans for Official English v. Arizona 520 U.S. 43, 67 (1997)………………………………………………………5 Bd. of County Comm'rs v. WHI., Inc. 992 F.2d 1061, 1063 (lOth Cir. 1993)………………………………………6 Beal Bank, SSB v. Pittorino (1st Cir. 1999) 177 F3d 65, 68………………………………………………7 Celotex Corp. v. Catrett (1986) 477 US 317, 325, 106 S.Ct. 2548, 2554……………………………..6 Community First Bank v. Nat' Credit Union Admin. 41 F.3d 1050, 1053 (6th Cir. 1994)…………………………………………6 DaimlerChrysler Corp. v. Cuno 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006)……………...11 Fresno Motors, LLC v. Mercedes Benz USA, LLC (9th Cir. 2014) 771 F3d 1119, 1125………………………………………...7 Juidice v. Vail 430 U.S. 327, 331 (1977)……………………………………………………5 Kerr-McGee Chemical Corp. v. U.S. Dept. of Interior 709 F.2d 597, 600 (9th Cir. 1983)…………………………………………..5 Laub v. United States DOI 342 F.3d 1080, 1085 (9th Cir. Cal. 2003)…………………………………...6 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 3 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________________________________________________ iii Los Angeles Bar Ass'n v. Eu 979 F.2d 697, 700 (9th Cir. 1992)…………………………………………..5 Lujan v. Defenders of Wildlife 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)……..….4, 5 McNamara v. City of Chicago 138 F.3d 1219, 1221 (7th Cir.1998)…………………………….…………14 National Organization for Women, Inc. v. Scheidler 510 U.S. 249, 255 (1994)……………………………………….…….……..5 Newdow v. U.S. Congress 313 F.3d 500, 503 (9th Cir. 2002)……………………………………..……6 Preiser v. Newkirk 422 U.S. 395, 401 (1975)……………………………………………………5 Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997)….….....3, 4 Romero v. Department Stores National Bank (S.D. Cal., Aug. 5, 2016, No. 15-CV-193-CAB-MDD) 2016 WL 4184099, at *6……………………………………………….....3, 13, 14 Spokeo Inc. v. Robins (2016) 136 S.Ct. 1540…………………………………..…………2, 3, 4, 12 Steffel v. Thompson 415 U.S. 452, 459, n. 10 (1974)……………………………………………..5 United States v. Viltrakis 108 F.3d 1159, 1160 (9th Cir. 1997)………………………………………..6 Wang Laboratories, Inc. v. Mitsubishi Electronics America, Inc. (CD CA 1993) 860 F.Supp. 1448, 1450…………………………………….7 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 4 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _________________________________________________________________________ iv Statutes 47 U.S.C. § 227…………………………………….......................................2 47 U.S.C. § 227(b)(3)……………………………………………………...12 Federal Rules of Civil Procedure 12(h)(3) and 56……...…………………...3 Federal Rules of Civil Procedure 56(a)……………………………………..7 Other Authorities Black's Law Dictionary 479 (9th ed. 2009)…………………………………4 Schwarzer, Hirsch, & Barrans, The Analysis and Decision of Summary Judgment Motions (1992) 139 FRD 441……………………………………6 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 5 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION In this class action for violation of the Telephonic Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, non-party, Shanell White (“White”), took out a loan from Defendant Wilshire Commercial Capital (hereinafter referred to as “WCC”) on January 13, 2009. On the loan application, White provided Plaintiffs VERINA FREEMAN (“Freeman”) and VALECEA DIGGS’ (Diggs”) cellular phone numbers as part of the contact information for references. During the course of collection of the White debt, WCC called Plaintiffs Freeman and Diggs. Litigation ensued when Plaintiffs filed this TCPA claim on July 6, 2015. From July 6, 20111 to the present, WCC called Freeman two times, and did not call Diggs at all. Plaintiff amended the complaint on September 30, 2016, and alleged that the class period was tolled2 and reaches back to December 17, 2010. Assuming arguendo, that the class period, including the claims of these Plaintiffs individually, extends farther back than July 6, 2011, there is no evidence that plaintiffs have suffered any concrete injury from the handful of calls that WCC made to Freeman and Diggs. Defendant WCC moves this court for an Order dismissing Plaintiffs’ TCPA claim on the grounds that they lack Article III standing, and, therefore, this Court lacks subject matter jurisdiction. In May 2016, the United State Supreme Court issued its Opinion in Spokeo Inc. v. Robins (2016) 136 S.Ct. 1540, as revised (May 24, 2016). Under Spokeo, if the defendant's actions did not cause a particularized, concrete, or de facto injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing. See Spokeo, 136 S.Ct. at 1547–48 1 The four year statute of limitations would run from the filing of the Complaint. 2 Plaintiff alleged that Alu Banarji v. Wilshire Commercial Capital, LLC dba Wilshire Consumer Credit, United States District Court, Southern District of California, Case No. 3:14- cv-02967-BEN-KSC, tolled the running of all applicable statutes of limitations per the United States Supreme Court’s holding in American Pipe and Construction Co. v. State of Utah, 414 U.S. 538 (1974). Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 6 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS (“Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”) (quoting Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). There has not yet been a ruling by a U.S. Circuit court on the issue of Spokeo and the TCPA. The Spokeo test is “injury in the absence of a statute.” Spokeo at 158. While Spokeo is not the first case to hold that there must be concrete and particularized damages for Article III standing to be satisfied, it may have been the first case in which the Court opined on the distinction between the two concepts. See Spokeo at 1555 (Ginsburg, J., dissenting). Of the few trial court level cases that have addressed Spokeo and the TCPA, the only case that appropriately applied the Spokeo test prescribed by the USSC to a motion for summary judgment that pierced the pleadings and put the real facts to the test is Romero v. Department Stores National Bank (S.D. Cal., Aug. 5, 2016, No. 15- CV-193-CAB-MDD) 2016 WL 4184099, at *6. As a result of the Spokeo decision, by assessing the underlying facts, it shall be demonstrated that Plaintiffs do not have the requisite standing to pursue a claim against WCC under the TCPA. The claimed injuries by the Plaintiffs are no different than if calls were made by a human being manually dialing the same numbers (which would not be a violation of the TCPA). Thus, but for the TCPA, Plaintiffs have suffered no injury. As the Plaintiffs have not suffered a concrete and particularized injury, and pursuant to Federal Rules of Civil Procedure 12(h)(3) and 56, the claims should be dismissed. II. REQUIREMENTS FOR ARTICLE III STANDING The standing to sue doctrine is derived from Article III of the Constitution's limitation of the judicial power of federal courts to “actual cases or controversies.” Spokeo at 1547. “The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Ibid. “[T]he Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 7 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS ‘irreducible constitutional minimum’ of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). This case concerns the first element related to standing. The first element, injury in fact, “is a constitutional requirement, and ‘it is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’ ” Spokeo at 1547–48 (quoting Raines, 521 U.S. at 820, n. 3, 117 S.Ct. 2312). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “ ‘For an injury to be “particularized,’ it ‘must affect the plaintiff in a personal and individual way.’ ” Id. (quoting Lujan, 504 U.S. at 560, n. 1, 112 S.Ct. 2130). Meanwhile, “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. (citing Black's Law Dictionary 479 (9th ed. 2009)). Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. A “bare procedural violation, divorced from any concrete harm,” does not satisfy the injury-in-fact requirement of Article III. Id. “The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 8 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citations omitted). Here, “the plaintiff can no longer rest on [ ] ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts,’ which for purposes of the [ ] motion will be taken as true.” Id. III. A LACK OF ARTICLE III STANDING MAY BE CONSIDERED AT ANY TIME. "Standing represents a jurisdictional requirement which remains open at all stages of the litigation." National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 255 (1994). Because standing is a jurisdiction issue, the issue of standing must be addressed first, even if not previously raised by Defendants, before proceeding to the merits of the case. Kerr-McGee Chemical Corp. v. U.S. Dept. of Interior, 709 F.2d 597, 600 (9th Cir. 1983); Los Angeles Bar Ass'n v. Eu, 979 F.2d 697, 700 (9th Cir. 1992). "To qualify as a case fit for federal court adjudication, 'an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.' " Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997)(emphasis added); quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975); Steffel v. Thompson, 415 U.S. 452, 459, n. 10 (1974). As such, courts have a responsibility to ensure the parties before it have standing to pursue their claims, no matter what stage of the litigation, and even if the parties have not previously raised the issue. "Every federal appellate court has a special obligation to satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause under review, even though the parties are prepared to concede it." Arizonans for Official English, 520 U.S. at 73 (internal citations omitted). See also Juidice v. Vail, 430 U.S. 327, 331 (1977) ("Although raised by neither of the parties, we are first obliged to examine the standing of appellees, as a matter of the case-or controversy requirement associated with Art. III, to seek injunctive relief in the District Court.”) Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 9 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS The Ninth Circuit has confirmed that even if raised for the first time on appeal, standing must be addressed because it addresses the fundamental ability of the courts to hear the case. "Indeed, because it implicates jurisdiction, a challenge to constitutional standing is one ‘which we are required to consider, even though raised for the first time on appeal.’ ” Laub v. United States DOI, 342 F.3d 1080, 1085 (9th Cir. Cal. 2003), quoting Newdow v. U.S. Congress, 313 F.3d 500, 503 (9th Cir. 2002); United States v. Viltrakis, 108 F.3d 1159, 1160 (9th Cir. 1997); see also Community First Bank v. Nat' Credit Union Admin., 41 F.3d 1050, 1053 (6th Cir. 1994) (holding that appellee's failure to cross appeal did not waive standing issue; "standing is not an affirmative defense that must be raised at risk of forfeiture"); Bd. of County Comm'rs v. WHI., Inc., 992 F.2d 1061, 1063 (lOth Cir. 1993) (standing is a threshold issue that must be resolved before the federal court acquires jurisdiction, and, therefore, standing may be raised at any time). As discussed below, Plaintiffs cannot meet their burden of proving they individually have standing to pursue their TCPA claim. IV. AUTHORITY FOR SUMMARY JUDGMENT A motion for summary judgment “pierces” the pleadings and puts the opponent to the test of affirmatively coming forward with sufficient evidence for its claims or defenses to create a genuine issue for trial. Celotex Corp. v. Catrett (1986) 477 US 317, 325, 106 S.Ct. 2548, 2554; see also Schwarzer, Hirsch, & Barrans, The Analysis and Decision of Summary Judgment Motions (1992) 139 FRD 441. “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett (1986) 477 US 317, 327, 106 S.Ct. 2548, 2555. Upon a showing that there is no genuine dispute of material fact as to particular claim(s) or defense(s), the court may grant summary judgment in the party's favor on “each claim or defense—or the part of each claim or defense—on Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 10 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS which summary judgment is sought.” FRCP 56(a); see Beal Bank, SSB v. Pittorino (1st Cir. 1999) 177 F3d 65, 68; Wang Laboratories, Inc. v. Mitsubishi Electronics America, Inc. (CD CA 1993) 860 F.Supp. 1448, 1450 (citing text). This motion seeks summary judgment as to the lack of standing of Plaintiff s Freeman and Diggs with regard to their TCPA claims. The FRCP 56 requirement that no “material” fact be in dispute is determined by applicable substantive law: “(I) t is the substantive law's identification of what facts are critical and what facts are irrelevant that governs.” Anderson v. Liberty Lobby, Inc. (1986) 477 US 242, 248, 106 S.Ct. 2505, 2510. The requirement that there be “no genuine dispute” about a material fact is determined under federal (Rule 56) standards. The federal judge must determine whether a reasonable jury could return a verdict for the nonmoving party. Ibid.; see Fresno Motors, LLC v. Mercedes Benz USA, LLC (9th Cir. 2014) 771 F3d 1119, 1125—“a dispute is ‘genuine’ only if a reasonable trier of fact could resolve the issue in the non- movant's favor.” V. STATEMENT OF UNDISPUTED MATERIAL FACTS White took out a loan with defendant Wilshire Commercial Capital on January 13, 2009.3 As part of the loan application, White provided Plaintiffs, Freeman and Diggs’, cellular phone numbers as contact information for references.4 Diggs’ cell phone number, as listed on the reference list, ended with 2477.5 From March 2011 through June 2011, WCC called Diggs seven times at the number ending in 2477.6 From July 6, 2011 to the present, WCC did not call Diggs at a number ending with 2477 at all.7 3 Declaration of James Eyraud, ¶4, “Exhibit C.” 4 Declaration of James Eyraud, ¶4, “Exhibit C.” 5 Declaration of James Eyraud, ¶4, “Exhibit C.” 6 Declaration of James Eyraud, ¶4, “Exhibit C.” 7 Complaint at ¶8,¶9; Declaration of James Eyraud, ¶6. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 11 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS Freeman’s cell phone number, as listed on the reference list, ended with 1546. 8 From December 2010 through June 2011, WCC called Freeman seven times at the number ending in 1546.9 From July 6, 2011 to the present, WCC called the number ending in 1546 two times, once on July 21, 2011, and once on November 29, 2011.10 Also, from July 6, 2011 to the present, WCC called a wrong number, not ending in 1546, five (5) times in an effort to contact Freeman.11 Vera Freeman has had a cell phone number ending in 1546 for 15 years.12 For the past fifteen years, Freeman paid a monthly flat fee for her cell phone plan regardless of the number of calls made or received. 13 Freeman does not recall when she ever received a phone call from WCC. 14 Freeman does not have any recollection as to the first, or last time WCC called her.15 Freeman has no estimate of the number of calls she received from WCC. 16 Freeman does not remember if she ever listened to a voicemail from WCC.17 Freeman’s caller Id function on her phone would only list a number, and not a name of an incoming caller, and Freeman does not recall WCC appearing on the caller Id. 18 Freeman remembers taking one call from WCC; however, she does not remember when the call was. 19. As for the one call, Freeman testified that she was at work and she received a call which she paraphrased as follows: WCC: “ ‘May I speak to Verina Freeman?’ Freeman: ‘This is she.’ WCC: ‘This is -- the Wilshire place, they were calling about Shanell White, and I'm like, ‘Okay. I'm at work right now, but I could 8 Declaration of James Eyraud, ¶4, “Exhibit C.” 9 Declaration of James Eyraud, ¶4, “Exhibit C.” 10 Declaration of James Eyraud, ¶6. 11 Declaration of James Eyraud, ¶6. 12 Declaration of Benjamin Carter, “Exhibit A” at p. 9:13-20. 13 Declaration of Benjamin Carter, “Exhibit A” at p. 10:11-23. 14 Declaration of Benjamin Carter, “Exhibit A” at p. 10:24-11:7. 15 Declaration of Benjamin Carter, “Exhibit A” at p. 11:8-16. 16 Declaration of Benjamin Carter, “Exhibit A” at p. 11:17-19 17 Declaration of Benjamin Carter, “Exhibit A” at p. 11:8-16. 18 Declaration of Benjamin Carter, “Exhibit A” at p. 12:15-19. 19 Declaration of Benjamin Carter, “Exhibit A” at p. 13:19-14:3 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 12 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS tell Shanell you called me and let her know,’ and that was it.” 20 Per Freeman, after the call from WCC, Freeman’s supervisor asked Freeman not to take non- emergency personal calls when not on break or at lunch. 21 Freeman did not suffer any damages as a result of the one phone call. 22 Freeman works for the California Department of Motor Vehicles. 23 Freeman was not written up at work for taking the call from WCC. 24 Freeman was not penalized at all and was only reminded by her supervisor regarding personal calls at work. 25 Freeman never spoke with a psychologist, psychiatrist, or mental health professional concerning any issues caused by WCC calling her. 26 Freeman never spoke with a spiritual counselor regarding any calls from WCC. 27 There were no monetary costs incurred by Freeman as a result of any calls from WCC. 28 Diggs does not currently have a cell phone with a number ending in 2477. 29 Diggs does not have any personal recollection as to whether she ever had a cell phone with a number ending in 2477.30 Diggs testified that she received collection calls concerning debts owed by White in 2010 or 2011. 31 Diggs stated that she received more than one or two calls, but only answered one such call from WCC. 32 To clarify the pertinent time periods, Ms. Diggs was asked about time periods before and after July 6, 2011, four years prior to the filing of the Complaint. Diggs testified that she has a recollection of WCC calling her after July 6, 2011; 20 Declaration of Benjamin Carter, “Exhibit A” at p. 14:7-15. 21 Declaration of Benjamin Carter, “Exhibit A” at p. 14:22-15:1. 22 Ibid. 23 Declaration of Benjamin Carter, “Exhibit A” at p. 15:20-21 24 Declaration of Benjamin Carter, “Exhibit A” at p. 16:9-12. 25 Declaration of Benjamin Carter, “Exhibit A” at p. 16:9-21 26 Declaration of Benjamin Carter, “Exhibit A” at p. 18:1-13. 27 Declaration of Benjamin Carter, “Exhibit A” at p. 18:14-18. 28 Declaration of Benjamin Carter, “Exhibit A” at p. 18:19-19:22. 29 Declaration of Benjamin Carter, “Exhibit B” at p. 10:10-12. 30 Declaration of Benjamin Carter, “Exhibit B” at p. 10:25-11:6. 31 Declaration of Benjamin Carter, “Exhibit B” at p. 19:24-20:6; 20:21-25. 32 Declaration of Benjamin Carter, “Exhibit B” at p. 21:12-18; 27:8-11. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 13 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS but cannot recall the date. 33 Diggs testified that she received all the calls from WCC while she was at work at Walmart. 34 In total, Diggs recalls answering only one or two calls from WCC. 35 Of the one or two calls Diggs answered from WCC, per Diggs’ testimony, the calls only lasted less than a minute, and she informed WCC she was at work. 36 Diggs stated that she could get in trouble for answering non-emergency personal calls when at work. 37 Post July 6, 2011, Diggs was never written up for taking a call from WCC, and she does not know if she was ever written up for taking a call from WCC before July 6, 2011. 38 Per her testimony, at some unknown point in time, Diggs’ supervisor pulled her aside and explained that she should not take personal non-emergency calls while at work. 39 Diggs was not denied a promotion, nor did she suffer any reduction in pay because of the call(s). 40 Diggs stated that she did not suffer any monetary loss due to the call(s) of WCC. 41 Diggs also stated that she does not know if her having received a call from WCC was ‘a part’ of the reason for her not getting a larger raise prior to July 6, 2011. 42 Diggs was not told by anyone at Walmart that the call from WCC was a factor in her not receiving a larger raise. 43 Diggs only stated that the call from WCC used her time, and was “very irritating.” 44 //// //// //// 33 Declaration of Benjamin Carter, “Exhibit B” at p. 25:7-25:10. 34 Declaration of Benjamin Carter, “Exhibit B” at p. 25:16-18; 26:4-11; 32:5-6 35 Declaration of Benjamin Carter, “Exhibit B” at p. 27:8-11. 36 Declaration of Benjamin Carter, “Exhibit B” at p. 27:12-18 37 Declaration of Benjamin Carter, “Exhibit B” at p. 27:23-28:6 38 Declaration of Benjamin Carter, “Exhibit B” at p. 28:11-14; 29:15-25; 44:21-45:23. 39 Declaration of Benjamin Carter, “Exhibit B” at p. 28:11-29:3. 40 Declaration of Benjamin Carter, “Exhibit B” at p. 30:7-13 41 Declaration of Benjamin Carter, “Exhibit B” at p. 31:2-10 42 Declaration of Benjamin Carter, “Exhibit B” at p. 47:8-23 43 Declaration of Benjamin Carter, “Exhibit B” at p. 47:24-48-9. 44 Declaration of Benjamin Carter, “Exhibit B” at p. 34:6-20. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 14 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS VI. WHILE THERE WAS NO TOLLING OF THE CLASS CLAIM, AT BEST, THERE WAS TOLLING OF INDIVIDUAL CLAIMS Defendant contends that the tolling back may apply to the individual claims but not the class as a whole45, since Plaintiffs did not intervene in the then on- going class action, and the cases were not deemed related. Plaintiffs contend that while this lawsuit was filed on July 6, 2015, “the commencement of the class suit [on December 17, 2014] in Alu Banarji v. Wilshire Commercial Capital, LLC dba Wilshire Consumer Credit… tolled the running of all applicable statutes of limitations per the United States Supreme Court’s holding in American Pipe and Construction Co. v. State of Utah, 414 U.S. 538 (1974) ).” FAC¶41. American Pipe held “The commencement of the original class suit tolls the running of the statute for all purported members of the class who make timely motions to intervene after the court has found the suit inappropriate for class action status,” Id. at 553, 94 S.Ct. 756. In Alu Banarji v. Wilshire Commercial Capital, LLC dba Wilshire Consumer Credit, class certification was denied on February 12, 2016 due to the fact that Plaintiff’s claims were held not typical of the proposed class. Assuming, arguendo, that their individual claims do relate back, there is no evidence of concrete injury regardless of the relation back. VII. REGARDLESS OF TIME PERIOD, A LACK OF CONCRETE INJURY BUT FOR THE TCPA The Supreme Court has held that “a plaintiff must demonstrate standing for each claim [s]he seeks to press.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352, 126 S.Ct. 1854, 164 L.Ed.2d 589 (2006). Here, Plaintiffs contend that Defendant violated the TCPA each time Defendant allegedly called their cell phone numbers using an auto dialer. The private right of action section of the 45 The issue of the tolling of class claims would properly be addressed in motions related to the viability of the alleged class. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 15 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS TCPA provides for a separate statutory $500 damage award, in addition to any actual damages, for each call that violates its provisions. 47 U.S.C. § 227(b)(3). Each alleged violation is a separate claim, meaning that Plaintiffs must establish standing for each violation, which in turn means that Plaintiffs must establish an injury in fact caused by each individual call. In other words, for each call, Plaintiffs must establish an injury in fact as if that was the only TCPA violation alleged in the Complaint. The determination of standing to bring a TCPA claim based on a call made using an ATDS does not change whether it is only one call or 100 calls. Accordingly, the Court must determine whether Plaintiffs have evidence of an injury in fact specific to each individual call, and not in the aggregate, based on the total quantity of calls. Plaintiffs, here, did not suffer any concrete injury, and cannot satisfy this burden. While the fact that Defendant called Plaintiffs’ cell phones may satisfy the “particular” component required in Spokeo, it does not automatically satisfy the requirement that the injury be “concrete.” Neither Plaintiff can offer any evidence demonstrating that Defendant’s calls to their cell phones caused any injury at all; they did not incur any phone charges for the calls made to their respective numbers by WCC, neither Plaintiff sought psychological help, they did not suffer any injury whatsoever as a result of the calls made to them. Further, having suffered no injury at all, Plaintiffs cannot claim that they suffered greater lost time, aggravation, invasion of privacy and sanctuary, and distress than they each individually would have suffered had the calls they answered been dialed manually, which would not have violated the TCPA. Therefore, it is undisputed that Plaintiffs did not suffer an injury in fact traceable to Defendant’s violation of the TCPA, and they lack standing to make a claim for any violation attributable to the calls they actually answered. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 16 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS As set forth in Romero v. Department Stores National Bank (S.D. Cal., Aug. 5, 2016, No. 15-CV-193-CAB-MDD) 2016 WL 4184099, at *6: “The Court is therefore unpersuaded by the reasoning of the various other district court decisions since Spokeo that have found that the plaintiffs had suffered a concrete injury and therefore had standing under the TCPA. Most of these cases consider the calls received by the plaintiff as a whole instead of evaluating standing separately for each call alleged to violate the TCPA. See, e.g., Caudill v. Wells Fargo Home Mortg., Inc., No. 5:16–066–DCR, 2016 WL 3820195 (E.D.Ky. Jul. 11, 2016); Mey v. Got Warranty, Inc., ––– F.Supp. 3d ––––, No. 5:15–CV–101, 2016 WL 3645195 (N.D.W.V. Jun. 30, 2016); Booth v. Appstack, Inc., No. C13–1533JLR, 2016 WL 3030256, at *5 (W.D.Wash. May 25, 2016). Meanwhile, in another case, the court appeared to hold that a plaintiff who receives a call on his cell phone that violates the TCPA has suffered a concrete injury simply because the call violated the TCPA. See Rogers v. Capital One Bank (USA), N.A., ––– F.Supp.3d ––––, No. 1:15–CV–4016– TWT, 2016 WL 3162592, at *2 (N.D.Ga. Jun. 6, 2016). This reasoning is circular. Under Spokeo, if the defendant's actions would not have caused a concrete, or de facto, injury in the absence of a statute, the existence of the statute does not automatically give a Plaintiff standing. See Spokeo, 136 S.Ct. at 1547–48 (“Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.”) (quoting Raines v. Byrd, 521 U.S. 811, 820 n. 3, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). As discussed above, the mere dialing of a cellular telephone number using an ATDS, even if the call is not heard or answered by the recipient, does not cause an injury to the recipient. That the TCPA allows private suits for such calls does not somehow elevate this non-injury into a concrete injury sufficient to create Article III standing.” Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 17 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS As in Romero, Defendant is a creditor attempting to collect a debt. Plaintiffs admit these calls did not cost them any monetary sums, did not cause them to seek therapy and did not cause them any particular injury. In other words, neither Plaintiff suffered any concrete injury whatsoever. Moreover, even if these calls seeking to collect the White debt were stressful, aggravating, and occupied Plaintiffs’ time, that injury is completely unrelated to Defendant’s use or non-use of an ATDS to dial their number. Each Plaintiff would have been no better off had Defendant dialed her telephone number manually. “A plaintiff who would have been no better off had the defendant refrained from the unlawful acts of which the plaintiff is complaining does not have standing under Article III of the Constitution to challenge those acts in a suit in federal court.” McNamara v. City of Chicago, 138 F.3d 1219, 1221 (7th Cir.1998). Finally, as Plaintiffs’ testified they only received the calls at their respective workplaces, the DMV and WalMart, there was no invasion of their privacy or seclusion as there is no expectation of privacy or seclusion at the Plaintiffs’ places of employment while they were working. VIII. CONCLUSION For the forgoing reasons, Plaintiffs do not have standing to pursue their claims for violations of the TCPA. DATED: January 9, 2017. MOLINO & BERARDINO, APLC By: s/Benjamin J. Carter Attorney for Defendant, WILSHIRE COMMERCIAL CAPITAL, LLC. Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 18 of 20 Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 19 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS SERVICE LIST Freeman v. Wilshire Commercial Capital Case No.: 2:15-cv-01428-WBS-AC Bryan Kemnitzer, Esq. Elliot Conn, Esq. Kemnitzer, Barron & Krieg, LLP 445 Bush St., 6th Floor San Francisco, CA 94108 bryan@kbklegal.com elliot@kbklegal.com Scott D. Owens, Esq. Scott D. Owens, P.A. 3800 S. Ocean Drive, Suite 235 Hollywood, FL 33019 scott@scottdowens.com Case 2:15-cv-01428-WBS-AC Document 42-1 Filed 01/09/17 Page 20 of 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ DECLARATION OF BENJAMIN CARTER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 1 MOLINO & BERARDINO, A Professional Law Corporation Anthony A. Molino, Esq. [SBN 156661] molino@molinolawfirm.com Steven R. Berardino, Esq. [SBN 075820] sberardino@molinolawfirm.com Michelle Cooper, Esq. [SBN 093668] mcooper@molinolawfirm.com Benjamin John Carter, Esq. [SBN 287462] bcarter@molinolawfirm.com 4751 Wilshire Boulevard, Suite 207 Los Angeles, California 90010-3838 Telephone (323) 692-4010; Facsimile (323) 692-4015 Attorneys for Defendant WILSHIRE COMMERCIAL CAPITAL, LLC UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiff(s), v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:15-CV-01428-WBS-AC [CLASS ACTION] DECLARATION OF BENJAMIN CARTER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS; EXHIBITS. [Filed concurrently with Notice of Motion and Motion for Partial Summary Judgment; Memorandum of Points and Authorities; Declaration of James Eyraud; Exhibits; Proposed Judgment] Date/Time: February 6, 2017/ 1:30 p.m. Courtroom: 5 Assigned to: Hon. William B. Shubb Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 1 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ DECLARATION OF BENJAMIN CARTER IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 2 DECLARATION OF BENJAMIN CARTER 1. I am an attorney licensed to practice law before all courts in the State of California, and the United States District Court for the Eastern District of California. I am an attorney of record for Defendant Wilshire Commercial Capital, LLC (“WCC”) in this action. I have knowledge of the facts set forth in this declaration. 2. Attached hereto as “Exhibit A” are true and correct portions of the deposition transcript of Plaintiff Verina Freeman, taken on November 30, 2016. 3. Attached hereto as “Exhibit B” are true and correct portions of the deposition transcript of Plaintiff Valecea Diggs taken on November 30, 2016. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. Executed this 9th day of January at Los Angeles California. /s Benjamin Carter BENJAMIN CARTER Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 2 of 32 EXHIBIT A - 003 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 3 of 32 EXHIBIT A - 004 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 4 of 32 EXHIBIT A - 005 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 5 of 32 EXHIBIT A - 006 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 6 of 32 EXHIBIT A - 007 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 7 of 32 EXHIBIT A - 008 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 8 of 32 EXHIBIT A - 009 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 9 of 32 EXHIBIT A - 010 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 10 of 32 EXHIBIT A - 011 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 11 of 32 EXHIBIT A - 012 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 12 of 32 EXHIBIT A - 013 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 13 of 32 EXHIBIT B - 014 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 14 of 32 EXHIBIT B - 015 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 15 of 32 EXHIBIT B - 016 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 16 of 32 EXHIBIT B - 017 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 17 of 32 EXHIBIT B - 018 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 18 of 32 EXHIBIT B - 019 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 19 of 32 EXHIBIT B - 020 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 20 of 32 EXHIBIT B - 021 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 21 of 32 EXHIBIT B - 022 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 22 of 32 EXHIBIT B - 023 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 23 of 32 EXHIBIT B - 024 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 24 of 32 EXHIBIT B - 025 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 25 of 32 EXHIBIT B - 026 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 26 of 32 EXHIBIT B - 027 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 27 of 32 EXHIBIT B - 028 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 28 of 32 EXHIBIT B - 029 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 29 of 32 EXHIBIT B - 030 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 30 of 32 EXHIBIT B - 031 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 31 of 32 EXHIBIT B - 032 Case 2:15-cv-01428-WBS-AC Document 42-2 Filed 01/09/17 Page 32 of 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ DECLARATION OF JAMES EYRAUD IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS; EXHIBITS. 1 MOLINO & BERARDINO, A Professional Law Corporation Anthony A. Molino, Esq. [SBN 156661] molino@molinolawfirm.com Steven R. Berardino, Esq. [SBN 075820] sberardino@molinolawfirm.com Michelle Cooper, Esq. [SBN 093668] mcooper@molinolawfirm.com Benjamin J. Carter, Esq. [SBN 287462] bcarter@molinolawfirm.com 4751 Wilshire Boulevard, Suite 207 Los Angeles, California 90010-3838 Telephone (323) 692-4010 Facsimile (323) 692-4015 Attorneys for Defendant WILSHIRE COMMERCIAL CAPITAL, LLC UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiff(s), v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:15-CV-01428-WBS-AC [CLASS ACTION] DECLARATION OF JAMES EYRAUD IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS; EXHIBITS. [Filed concurrently with Notice of Motion and Motion for Partial Summary Judgment; Memorandum of Points and Authorities; Declaration of Benjamin Carter, Exhibits; and Proposed Judgment] Date/Time: February 6, 2017/ 1:30 p.m. Courtroom: 5 Assigned to: Hon. William B. Shubb Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 1 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ DECLARATION OF JAMES EYRAUD IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS; EXHIBITS. 2 DECLARATION OF JAMES EYRAUD I, James Eyraud, declare: 1. I am aware of the facts stated in this declaration and if called as a witness, I could and would competently testify thereto. 2. I am Vice President of Defendant, Wilshire Commercial Capital, LLC (“WCC”) and I am custodian of records for same. 3. WCC is in the business of making automobile title loans. 4. With respect to the Shanell White loan made in January 13, 2009, WCC was provided with a list of references as part of the credit application. A true and correct copy of that reference list is attached hereto as “Exhibit C.” Freeman and Diggs were listed as references on that list by White which also included their cellular telephone numbers as contact information. Diggs’ cell phone number listed on the reference list ended with 2477. Freeman’s cell phone number listed on the reference list ended with 1546. 5. The WCC Collection Notes for the Shanell White Account, “Exhibit D,” are true and correct printouts of the digital filed maintained by WCC in the regular course of business. In connection with our servicing of accounts, WCC sets up an account number tied to the loan and our daybreak notes reflect communications on the account. As those notes reflect, from March 2011 through Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 2 of 14 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 3 of 14 WCC00007997EXHIBIT C - 004 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 4 of 14 EXHIBIT D - 005 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 5 of 14 EXHIBIT D - 006 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 6 of 14 Date Type Entered Comment 04/25/2011 02:15 PM REGULAR COLLECTION VERINA -1546...LMM 04/13/2011 01:48 PM REGULAR COLLECTION VERINA -1546...LMM EXHIBIT D - 007 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 7 of 14 Date Type Entered Comment 04/28/2011 04:06 PM REGULAR COLLECTION VELECEA : -2477 LFT MSG ON VML 04/28/2011 11:50 AM REGULAR COLLECTION VERINA -1546...LMM EXHIBIT D - 008 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 8 of 14 Date Type Entered Comment 06/22/2011 09:32 AM REGULAR COLLECTION CLLD VELECA DIGGER (CST FRIEND) CID# -2477, LMA AM 06/22/2011 09:28 AM REGULAR COLLECTION CLLD LORAINE FREEMAN (CST AUNT) CID -1546, LMA AM EXHIBIT D - 009 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 9 of 14 EXHIBIT D - 010 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 10 of 14 Date Type Entered Comment 12/13/2011 11:42 AM REGULAR COLLECTION REF VENIA # 1516 LMAM , 12/06/2011 01:32 PM REGULAR COLLECTION REF VENIA # 916 1516 LMAM , 11/29/2011 01:36 PM REGULAR COLLECTION VERINA FREEMAN ( 1546) LMA EXHIBIT D - 011 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 11 of 14 Date Type Entered Comment 01/06/2012 02:15 PM REGULAR COLLECTION REF VENIA # 1516 LM ON AM , 12/14/2011 07:44 PM REGULAR COLLECTION J REF VENIA # 1516 LMAM , , EXHIBIT D - 012 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 12 of 14 EXHIBIT D - 013 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 13 of 14 Date Type Entered Comment 05/24/2011 12:33 PM REGULAR COLLECTION VELECEA : -2477 EXHIBIT D - 014 Case 2:15-cv-01428-WBS-AC Document 42-3 Filed 01/09/17 Page 14 of 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 1 UNTIED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA VERINA FREEMAN and VALECEA DIGGS, individually and on behalf of all others similarly situated, Plaintiff(s), v. WILSHIRE COMMERCIAL CAPITAL, LLC a California limited liability company dba WILSHIRE CONSUMER CREDIT, Defendant(s). ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO.: 2:15-CV-01428-WBS-AC [CLASS ACTION] [PROPOSED]JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS [Filed concurrently with Notice of Motion and Motion for Partial Summary Judgment; Memorandum of Points and Authorities; Declaration of James Eyraud, Exhibits; Declaration of Benjamin Carter; Exhibits] Date/Time: February 6, 2017/ 1:30 p.m. Courtroom: 5 Assigned to: Hon. William B. Shubb After consideration of the papers in support of and in opposition to Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 1 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 2 Defendant Wilshire Commercial Capital, LLC’s MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS, the Court determines that the following facts, issues and conclusions of law have been established without substantial controversy as follows. UNCONTROVERED FACTS 1. Non- party Shanell White (“White”) took out a loan from defendant Wilshire Commercial Capital, LLC (“WCC”) on January 13, 2009.1 2. As part of the loan application, White provided Plaintiffs, Verina Freeman (“Freeman”) and Valecea Diggs’ (“Diggs”), cellular phone numbers as contact information for references.2 3. At times, WCC called said cell phone number belonging to Plaintiff Freeman. From December 2010 through June 2011, WCC called Freeman seven times at the number ending in 1546.3 From July 6, 2011 to the present, WCC called the number ending in 1546 two times, once on July 21, 2011, and once on November 29, 2011.4 4. At times, WCC called said cell phone number belonging to Plaintiff Diggs. From March 2011 through June 2011, WCC called Diggs seven times at the number ending in 2477.5 From July 6, 2011 to the present, WCC did not call Diggs at a number ending with 2477 at all.6 5. Vera Freeman has had a cell phone number ending in 1546 for 15 years.7 1 Declaration of James Eyraud, ¶4, “Exhibit C.” 2 Declaration of James Eyraud, ¶4, “Exhibit C.” 3 Declaration of James Eyraud, ¶4, “Exhibit C.” 4 Declaration of James Eyraud, ¶6. 5 Declaration of James Eyraud, ¶4, “Exhibit C.” 6 Complaint at ¶8,¶9; Declaration of James Eyraud, ¶6. 7 Declaration of Benjamin Carter, “Exhibit A” at p. 9:13-20. Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 2 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 3 6. For the past fifteen years, Freeman paid a monthly flat fee for her cell phone plan regardless of the number of calls made or received. 8 7. Freeman remembers taking one call from WCC while at work; however, she does not remember when the call was. 9. 8. Per Freeman, after the call from WCC, Freeman’s supervisor asked Freeman not to take non-emergency personal calls when not on break or at lunch. 10 9. Freeman works for the California Department of Motor Vehicles.11 10. Freeman was not written up at work for taking the call from WCC.12 11. Freeman was not penalized at all and was only reminded by her supervisor regarding personal calls at work. 13 12. Freeman never spoke with a psychologist, psychiatrist, or mental health professional concerning any issues caused by WCC calling her. 14 13. Freeman never spoke with a spiritual counselor regarding any calls from WCC. 15 14. There were no monetary costs incurred by Freeman as a result of any calls from WCC. 16 15. Freeman did not suffer any damages as a result of the one phone call. 17 16. The only damages Freeman has suffered are statutory in nature. 17. Diggs does not currently have a cell phone with a number ending in 2477.18 8 Declaration of Benjamin Carter, “Exhibit A” at p. 10:11-23. 9 Declaration of Benjamin Carter, “Exhibit A” at p. 13:19-14:2 10 Declaration of Benjamin Carter, “Exhibit A” at p. 14:22-15:1. 11 Declaration of Benjamin Carter, “Exhibit A” at p. 15:20-21 12 Declaration of Benjamin Carter, “Exhibit A” at p. 16:9-11. 13 Declaration of Benjamin Carter, “Exhibit A” at p. 16:9-21 14 Declaration of Benjamin Carter, “Exhibit A” at p. 18:1-13 15 Declaration of Benjamin Carter, “Exhibit A” at p. 18:14-18. 16 Declaration of Benjamin Carter, “Exhibit A” at p. 18:19-19:22. 17 Declaration of Benjamin Carter, “Exhibit A” at p. 14:22-24. 18 Declaration of Benjamin Carter, “Exhibit B” at p. 10:10-12. Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 3 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 4 18. Diggs does not have any personal recollection as to whether she ever had a cell phone with a number ending in 2477.19 19. Diggs testified that she received collection calls concerning debts owed by White in 2010 or 2011. 20 20. Diggs stated that she received more than one or two calls, but only answered one such call from WCC. 21 21. Diggs testified that she received all the calls from WCC while she was at work at Walmart. 22 22. In total, Diggs recalls answering only one or two calls from WCC. 23 23. Diggs stated that she could get in trouble for answering non-emergency personal calls when at work. 24 24. Post July 6, 2011, Diggs was never written up for taking a call from WCC, and she does not know if she was ever written up for taking a call from WCC before July 6, 2011.25 25. Per her testimony, at some unknown point in time, Diggs’ supervisor pulled her aside and explained that she should not take personal non-emergency calls while at work. 26 26. Diggs was not denied a promotion, nor did she suffer any reduction in pay because of the call(s). 27 27. Diggs stated that she did not suffer any monetary loss due to the call(s) of WCC. 28 Diggs also stated that she does not know if her having received a 19 Declaration of Benjamin Carter, “Exhibit B” at p. 10:25-11:6. 20 Declaration of Benjamin Carter, “Exhibit B” at p. 19:24-20:6; 20:21-25. 21 Declaration of Benjamin Carter, “Exhibit B” at p. 21:12-18; 27:8-11. 22 Declaration of Benjamin Carter, “Exhibit B” at p. 25:16-18; 26:4-11; 32:5-6 23 Declaration of Benjamin Carter, “Exhibit B” at p. 27:8-11. 24 Declaration of Benjamin Carter, “Exhibit B” at p. 27:23-28:6 25 Declaration of Benjamin Carter, “Exhibit B” at p. 28:11-14; 29:15-25; 44:21-45:23. 26 Declaration of Benjamin Carter, “Exhibit B” at p. 28:11-29:3. 27 Declaration of Benjamin Carter, “Exhibit B” at p. 30:7-13 Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 4 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 5 call from WCC was ‘a part’ of the reason for her not getting a larger raise prior to July 6, 2011. 29 28. Diggs was not told by anyone at Walmart that the call from WCC was a factor in her not receiving a larger raise. 30 29. Diggs only stated that the call from WCC used her time, and was “very irritating.” 31 30. The only damages Diggs has suffered are statutory in nature. CONCLUSIONS OF LAW 1. “[T]he ‘irreducible constitutional minimum’ of standing consists of three elements. The plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Id. citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)). This case concerns the first element related to standing. The first element, injury in fact, “is a constitutional requirement, and ‘it is settled that Congress cannot erase Article III's standing requirements by statutorily granting the right to sue to a plaintiff who would not otherwise have standing.’ ” Spokeo at 1547–48 (quoting Raines, 521 U.S. at 820, n. 3, 117 S.Ct. 2312). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 1548 (quoting Lujan, 504 U.S. at 560, 112 S.Ct. 2130). “ ‘For an injury to be “particularized,’ it ‘must affect the plaintiff in a personal and 28 Declaration of Benjamin Carter, “Exhibit B” at p. 31:2-10 29 Declaration of Benjamin Carter, “Exhibit B” at p. 47:8-23 30 Declaration of Benjamin Carter, “Exhibit B” at p. 47:24-25:9. 31 Declaration of Benjamin Carter, “Exhibit B” at p. 34:6-20. Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 5 of 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________ JUDGMENT RE DEFENDANT WILSHIRE COMMERCIAL CAPITAL, LLC’S MOTION FOR SUMMARY JUDGMENT DUE TO LACK OF ARTICLE III STANDING OF PLAINTIFFS VERINA FREEMAN AND VALENCEA DIGGS 6 individual way.’ ” Id. (quoting Lujan, 504 U.S. at 560, n. 1, 112 S.Ct. 2130). Meanwhile, “[a] ‘concrete’ injury must be ‘de facto’; that is, it must actually exist.” Id. (citing Black's Law Dictionary 479 (9th ed. 2009)). Therefore, a plaintiff does not “automatically satisf[y] the injury-in-fact requirement whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right. Article III standing requires a concrete injury even in the context of a statutory violation.” Id. at 1549. A “bare procedural violation, divorced from any concrete harm,” does not satisfy the injury-in-fact requirement of Article III. Id. 2. “The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff's case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.” Lujan, 504 U.S. at 561, 112 S.Ct. 2130 (internal citations omitted). 3. Plaintiff cannot offer any evidence demonstrating that Defendant’s use of an auto-dialer to dial her number caused her greater lost time, aggravation, invasion of privacy and sanctuary, and distress than she would have suffered had the calls she answered been dialed manually, which would not have violated the TCPA. Therefore, Plaintiff did not suffer an injury in fact traceable to Defendant’s violation of the TCPA, and lacks standing to make a claim for any violation attributable to the calls she actually answered. DATED: ___________ _______________________________ Hon. William B. Shubb Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 6 of 8 Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 7 of 8 Case 2:15-cv-01428-WBS-AC Document 42-4 Filed 01/09/17 Page 8 of 8