Shannon Smith et al v. Closet World, Inc.

NOTICE OF MOTION AND MOTION to Dismiss Case or in the Alternative, to Strike Second Amended Complaint

C.D. Cal.November 28, 2016

R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S 61263467.1 NOTICE; MOTION TO DISMISS OR STRIKE 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 ROBINS KAPLAN LLP Michael A. Geibelson, Bar No. 179970 MGeibelson@RobinsKaplan.com Christopher S. Reeder, Bar No. 193041 CReeder@RobinsKaplan.com 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: (310) 552-0130 Facsimile: (310) 229-5800 Attorneys for Defendants CLOSET WORLD, INC. AND HOME ORGANIZERS INC. UNITED STATES DISCTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SHANNON SMITH, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOSET WORLD, INC., a Delaware Corporation; HOME ORGANIZERS INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants. Case No. 8:16-cv-1584-JLS-AFM [Assigned to the Hon. Josephine L. Staton] DEFENDANT HOME ORGANIZERS, INC. AND CLOSET WORLD, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STRIKE SECOND AMENDED COMPLAINT Hearing Date: January 20, 2017 Hearing Time: 2:30 p.m. Courtroom: 10A Complaint Filed: July 27, 2016 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 1 of 34 Page ID #:218 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 2 - NOTICE; MOTION TO DISMISS OR STRIKE 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 TO THE CLERK OF THE ABOVE-ENTITLED COURT, AND TO PLAINTIFF SHANNON SMITH AND HER ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 20, 2017 at 2:30 p.m. in Courtroom 10A of the above-entitled court, Defendants Closet World, Inc. and Home Organizers Inc. (“Defendants”) will and hereby do move to dismiss this action pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), or in the alternative, pursuant to Rule 12(f), to strike the following portions of the second amended complaint:  Paragraphs 23 through 30 in their entirety;  Paragraph 32, 11:3 “or the TCPA Class members”;  Paragraph 32, 11:4 “and the TCPA Class members”;  Paragraph 33, 11:8-10 “and the TCPA Class members” and “and the TCPA Class members”;  Paragraph 34, 11:14 “and the TCPA Class members’”;  Paragraph 35, 11:16-17 “and the TCPA Class members”;  Paragraph 37, 11:24-25 “and the Privacy Act Class members”;  Paragraph 37, 12:1-2 “and the Privacy Act Class members”;  Paragraph 38, 12:7 “and other Privacy Act Class members”;  Paragraph 39, 12:11 “and Privacy Act Class members”;  Paragraph 40, 12:13-14 “and the Privacy Act Class members” and “and the Class members.” This Motion follows the telephonic conference of counsel that occurred on or about the afternoon of August 8 and 22, 2016 and was accompanied by an informal exchange of substantive information concerning the matters at issue in the motion that included correspondence including on August 23, 25, and September 6 and 14. This Motion is and will be based upon this Notice, the attached memorandum of point and authorities, the declarations of Gerard Thompson (Home Organizers), Derrek Farren (Action Marketing), and Mary Rieman (Closet World), and upon Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 2 of 34 Page ID #:219 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 3 - NOTICE; MOTION TO DISMISS OR STRIKE 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 such other and further evidence and argument as may be submitted before and at the time of the hearing of the motion. Respectfully submitted, DATED: November 28, 2016 ROBINS KAPLAN LLP By: /s/ Michael A. Geibelson __________ Michael A. Geibelson Christopher S. Reeder ATTORNEYS FOR DEFENDANTS CLOSET WORLD, INC. AND HOME ORGANIZERS INC. Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 3 of 34 Page ID #:220 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S 61263467.1 i NOTICE; MOTION TO DISMISS OR STRIKE 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 TABLE OF CONTENTS Page I. INTRODUCTION ........................................................................................... 1 II. PLAINTIFF DOES NOT HAVE ARTICLE III STANDING TO SUE AFTER THE SUPREME COURT’S DECISION IN SPOKEO V. ROBINS ........................................................................................................... 2 III. PLAINTIFF DOES NOT HAVE STANDING TO SUE HOME ORGANIZERS INC. OR CLOSET WORLD, INC. ...................................... 6 A. Home Organizers Does Not Sell Goods or Services and Does Not Make Telemarketing Calls ............................................................. 7 B. Closet World Does Not Make Telemarketing Calls Either .................. 8 C. Closet World’s Telemarketing Calls Have Been Made by Action Marketing, an Independent Contractor, Without Agency, Authorization or Ratification ................................................................ 8 1. Action Marketing’s Acts Are Not Traceable to Closet World Under a Theory of Actual Agency. ............................... 10 2. Action Marketing’s Acts Are Not Traceable to Closet World Under a Theory of Apparent Authority. ........................ 12 3. Closet World Never Authorized or Ratified Action Marketing’s Conduct ................................................................ 14 4. No Theory of Aiding and Abetting Exists to Create Jurisdiction ................................................................................ 15 IV. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR A VIOLATION OF THE TCPA AGAINST HOME ORGANIZERS AND CLOSET WORLD FOR CALLS MADE BY ACTION MARKETING ............................................................................................... 16 V. THE COMPLAINT FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE CALIFORNIA PRIVACY ACT ........................... 17 VI. THE CLASS ALLEGATIONS SHOULD BE STRICKEN FOR A LACK OF TYPICALITY AND SUPERIORITY AND PREDOMINANCE OF INDIVIDUAL ISSUES .......................................... 20 A. Class Allegations Should Be Stricken When a Class Action Cannot Be Maintained ........................................................................ 20 B. Plaintiff is Not Typical And Individual Issues Predominate .............. 21 C. A Class Action is Not Superior ........................................................... 23 VII. CONCLUSION ............................................................................................. 23 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 4 of 34 Page ID #:221 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - ii - NOTICE; MOTION TO DISMISS OR STRIKE 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 TABLE OF AUTHORITIES Page Cases Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) ............................ 21, 23 Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .................................. 16 Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) ............................................................................. 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) .................................. 16 Bennett v. Spear, 520 U.S. 154 (1997) .............................................................................................. 7 Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.2d 331 (4th Cir. 1998) ............................................................................... 23 Casey v. U.S. Bank Nat’l Assoc., 127 Cal.App.4th 1138 (2005) .............................................................................. 16 Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994) .................................. 15 Chamberlan v. Ford Motor Co., 369 F. Supp. 2d 1138 (N.D. Cal. 2005) ............................................................... 22 Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013) ........................................................................................ 22 DeBremaeker v. Short, 433 F.2d 733 (5th Cir. 1970) ............................................................................... 21 Dish Network, 28 F.C.C. Rcd. at 6592 ........................................................................................ 13 Ewing v. SQM US, Inc., No. 3:16-cv-1609, 2016 U.S. Dist. LEXIS 143272 (S.D. Cal. Sept. 29, 2016) ................................................................................................................ 5 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 5 of 34 Page ID #:222 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - iii - NOTICE; MOTION TO DISMISS OR STRIKE 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 Fiol v. Doellstedt, 50 Cal.App.4th 1318 (1996) ................................................................................ 15 France Telecom S.A. [incomplete citation], 82 F. Supp. 3d 987 (N.D. Cal. 2015) ................................................................... 14 General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982) .............................. 20, 22 Hanlon v. Chrysler Corp., 150 F.3d 1011 (9th Cir. 1998) ............................................................................. 21 Haskell v. Time, Inc., 965 F. Supp. 1398 (E.D. Cal. 1997) .................................................................... 22 Herrera v. LCS Fin. Servs. Corp., 2011 U.S. Dist. LEXIS 58288 THE (N.D. Cal. June 1, 2011) ............................ 21 In Re: Easysaver Rewards Litigation, 737 F. Supp. 2d 1159 (S.D. Cal. 2010) ............................................................... 15 In re Fibreboard Corp., 893 F.2d 706 (5th Cir. 1990) ............................................................................... 23 In re First Alliance Mortg. Co., 471 F.3d 977 (9th Cir. 2006) ............................................................................... 16 In re Meagan R., 42 Cal. App. 4th 17, 49 Cal. Rptr. 2d 325 (1996) ............................................... 18 Kingman Reef Atoll Invs., L.L.C. v. U.S., 541 F.3d 1189 (9th Cir. 2008) ............................................................................... 6 Leite v. Crane Co., 749 F.3d 1117 (9th Cir. 2014) ............................................................................... 3 Lemus v. H&R Block Enters., LLC, 2010 U.S. Dist. LEXIS 133697 SI (N.D. Cal. 2010) .......................................... 21 Lerwill v. Inflight Mot. Pic., Inc., 582 F.2d 507 (9th Cir. 1978) ............................................................................... 21 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 6 of 34 Page ID #:223 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - iv - NOTICE; MOTION TO DISMISS OR STRIKE 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 Lofton v. Verizon Wireless (VAW) LLC, No. 13-cv-5665 YGR, 2014 U.S. Dist. LEXIS 69983 (N.D. Cal. Mar. 14, 2014) ..................................................................................................... 19 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .......................................................................................... 3, 4 Lushe v. Verengo Inc., No. CV 13-07632, 2014 WL 5794627 (C.D. Cal. Oct. 22, 2014) ...................... 11 Makaron v. GE Security Mfg., Inc., No. CV-14-1274, 2015 U.S. Dist. LEXIS 75240 (C.D. Cal. May 18, 2015) .............................................................................................................. 14, 15 McNamara v. City of Chicago, 138 F.3d 1219 (7th Cir. 1998) ............................................................................... 5 McNutt v. Gen’l Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780 (1936) ....................................................................... 6 Meyer v. Portfolio Recovery Ass’n, LLC, 707 F.3d 1036 (9th Cir. 2012) ............................................................................... 3 Migliaccio v. Midland Nat’l Life Ins. Co., No. CV 06-1007 CAS, 2007 WL 316873 (C.D. Cal. 2007) ............................... 16 Moriarty v. Glueckert Funeral Home, Ltd., 155 F.3d 859 (7th Cir.1998) ................................................................................ 11 NLRB v. Dist. Council of Iron Workers of Cal. & Vicinity, 124 F.3d 1094 (9th Cir.1997) ........................................................................ 12, 13 O’Connor v. Boeing N. Am., Inc., 180 F.R.D. 359 (C.D. Cal. 1997) ........................................................................ 21 O’Shea v. Littleton, 414 U.S. 488 (1974) ............................................................................................ 22 Ocean Advocates v. United States Army Corps. of Eng’rs, 402 F.3d 846 (9th Cir. 2005) ................................................................................. 7 Papasan v. Allain, 478 U.S. 265, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986) .................................... 16 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 7 of 34 Page ID #:224 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - v - NOTICE; MOTION TO DISMISS OR STRIKE 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 People v. Beeman, 35 Cal. 3d 547, 199 Cal. Rptr. 60, 674 P.2d 1318 (1984) ............................. 17, 19 People v. Hill, 77 Cal. App. 2d 287, 175 P.2d 45 (1946) ............................................................ 19 People v. McCoy, 25 Cal. 4th 1111, 108 Cal. Rptr. 2d 188, 24 P.3d 1210 (2001) ..................... 17, 19 Perez v. Van Groningen & Sons, 41 Cal. 3d 962, 227 Cal. Rptr. 106, 719 P.2d 676 (1986) ................................... 18 Pritikin v. Dep’t of Energy, 254 F.3d 791 (9th Cir. 2001) ................................................................................. 6 Raines v. Byrd, 521 U.S. 811 (1997) .......................................................................................... 3, 6 Safe Air for Everyone v. Meyer, 373 F.3d 1035 (9th Cir. 2004) ............................................................................... 3 Sanders v. Apple Inc., 672 F. Supp. 2d 978 (N.D. Cal. 2009) ................................................................. 20 Sarei v. Rio Tinto, PLC, 487 F.3d 1193 (9th Cir. 2007) on reh’g en banc, 550 F .3d 822 (9th Cir. 2008) ........................................... 10, 11 Saunders v. Superior Court, 27 Cal.App.4th 832 (1994) .................................................................................. 16 Sierra Club v. Morton, 405 U.S. 727 (1972) ............................................................................................ 22 Silha v. ACT, Inc., 807 F.3d 169 (7th Cir. 2015) ................................................................................. 5 Spokeo v. Robins, 136 S. Ct. 1540 (2016) ................................................................................. passim Sprewell v. Golden State Warriors, 266 F.3d 979 (9th Cir. 2001) ............................................................................... 16 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 8 of 34 Page ID #:225 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - vi - NOTICE; MOTION TO DISMISS OR STRIKE 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 Stearns v. Select Comfort Retail Corp., No. 08-2746 JF (PVT), 2009 WL 4723366 (N.D. Cal. Dec. 04, 2009) .................................................................................................................... 20 Sun Microsystems Inc. v. Hynix Semiconductor Inc., 622 F. Supp. 2d 890 (N.D. Cal. 2009) ................................................................. 11 Thomas v. Taco Bell, 582 Fed. App’x 678 (9th Cir. 2014) .............................................................. 12, 15 Thornhill Publishing Co. v. Gen’l Tel. & Elec., 594 F.2d 730 (9th Cir. 1979) ................................................................................. 6 Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553 (9th Cir. 1987) ............................................................................... 6 Tucker v. Lombardo, 47 Cal. 2d 457, 303 P.2d 1041 (1956) ................................................................. 18 United States v. Bonds, 608 F.3d 495 (9th Cir. 2010) ............................................................................... 11 Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011) ............................................................................................ 21 Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001) ......................................................... 23 Statutes 28 U.S.C. § 2072(b) .................................................................................................. 23 47 U.S.C. § 227(b) ................................................................................................ 3, 10 47 U.S.C. § 227(b)(1)(A)(iii) ...................................................................................... 2 47 U.S.C. § 227(b)(3) ............................................................................................. 3, 4 47 U.S.C. § 227(b)(3)(C) ............................................................................................ 3 47 U.S.C. § 227(b)(l) ............................................................................................ 2, 10 47 U.S.C. § 227(b)(l)(A)(iii) ...................................................................................... 2 Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 9 of 34 Page ID #:226 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - vii - NOTICE; MOTION TO DISMISS OR STRIKE 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 Cal. Pen. Code § 31 .................................................................................................. 17 Cal. Pen. Code § 632.7 ....................................................................................... 18, 19 California Invastion of Privacy Act ...................................................................... 1, 24 Telephone Consumer Protection Act ................................................................. passim Rules Fed. R. Civ. P. 12(b)(1) ...................................................................................... 3, 6, 7 Fed. R. Civ. P. 12(b)(6) .................................................................................... 3, 7, 16 Fed. R. Civ. P. 23(a)(3) ....................................................................................... 21, 22 Fed. R. Civ. P. 23(b)(3) ............................................................................................ 23 Other Authorities Black’s Law Dictionary 479 (9th ed. 2009) ............................................................... 4 Restatement of Agency ............................................................................................. 11 Restatement (Third) of Agency § 1.01 ..................................................................... 11 Restatement (Third) of Agency § 2.03 (2006) ......................................................... 12 Restatement (Third) of Agency § 4.04 cmt. b .......................................................... 14 United States Constitution Article III ................................................................ passim Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 10 of 34 Page ID #:227 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S 61263467.1 1 NOTICE; MOTION TO DISMISS OR STRIKE 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff’s Second Amended Complaint tacitly, and correctly, acknowledges that the telemarketing calls she complains violate the federal Telephone Consumer Protection Act (TCPA) and the California Invasion of Privacy Act (CIPA) were made by Defendant Action Marketing, and not by Defendants Closet World, Inc. or Home Organizers Inc. (FAC ¶¶ 9, 12.) Home Organizers is a holding company that sells no goods or services and has no involvement in telemarketing. (Thompson Decl.) Closet World sells goods and services, but its telemarketing is performed by Action Marketing – an independent third party that controls every aspect of those calls save the phone numbers to call and the promotion to offer. (Farren Decl.; Rieman Decl.) Closet World only provides names and phone numbers of people who have previously called Closet World (e.g. when requesting a quote for a remodel as happened with plaintiff, see, FAC ¶ 10), and the terms of the promotion (e.g. 25% services over $500). These and other facts and allegations demonstrate Plaintiff’s second amended complaint must be dismissed. For a Plaintiff’s claim to proceed, she must have standing and there must be subject matter jurisdiction. But under the United States Supreme Court’s decision in Spokeo v. Robins, Plaintiff lacks standing to sue since she has not alleged that she suffered any actual, concrete and particularized injury as a result of receiving the calls alleged to violate the Telephone Consumer Protection Act. And, because none of the acts alleged to violate the TCPA is fairly traceable to Home Organizers or Closet World, Plaintiff has no standing to sue either of them. Moreover, litigation of the CIPA claim in this court can only be based upon supplemental jurisdiction. However, neither Home Organizers nor Closet World can be held liable as an aider/abettor for violations of the California Penal Code. Thus, because there is no subject matter jurisdiction and because Plaintiff lacks Article III standing to sue, the Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 11 of 34 Page ID #:228 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 2 - NOTICE; MOTION TO DISMISS OR STRIKE 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 entire action should be dismissed. Additionally, the class allegations must be stricken because Plaintiff cannot show a violation as to each member of the class, or that they suffered an injury, through common evidence. That is, Plaintiff’s own anecdote cannot show whose phone was a cellular phone and who did and did not consent to call recording. Without standing, and where liability or the fact of injury cannot be shown without individual trials, plaintiff’s claim is not typical, individual issues predominate, a class action is not superior, and the Rules Enabling Act bars the claim from proceeding. For these reasons, no class can be certified and the class allegations must be stricken. II. PLAINTIFF DOES NOT HAVE ARTICLE III STANDING TO SUE AFTER THE SUPREME COURT’S DECISION IN SPOKEO V. ROBINS Plaintiff’s complaint seeks to allege a single claim over which there is federal question jurisdiction – a violation of the federal Telephone Consumer Protection Act (TCPA), specifically, 47 U.S.C. §227(b)(1)(A)(iii). However, as the Supreme Court recently explained in Spokeo v. Robins, 136 S. Ct. 1540, 1547 (2016), Article III of the United States Constitution requires that the Plaintiff have actually suffered a concrete and particularized injury in order to have standing to sue. Plaintiff has not alleged any such injury resulting from the violation of the section of the TCPA she has. Thus, she has no standing to sue and her complaint should be dismissed. Plaintiff’s claim under the TCPA is premised on section 227(b)(l). It provides that it is “unlawful for any person . . . to make any call (other than a call made for emergency purposes or made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice . . . to any telephone number assigned to a . . . cellular telephone service . . . .” 47 U.S.C. § 227(b)(l)(A)(iii). There are three elements to this claim: “(1) the defendant called a cellular telephone number; (2) using an automatic dialing system; (3) Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 12 of 34 Page ID #:229 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 3 - NOTICE; MOTION TO DISMISS OR STRIKE 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 without the recipient's prior express consent.” Meyer v. Portfolio Recovery Ass’n, LLC, 707 F.3d 1036, 1043 (9th Cir. 2012). Plaintiff seeks statutory damages under § 227(b)(3)(C), which provides for a private right of action based on a violation of § 227(b), and for actual or statutory damages. 47 U.S.C. § 227(b)(3). However, without an injury, Plaintiff’s Second Amended Complaint must be dismissed for a lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). “A Rule 12(b)(1) jurisdictional attack may be facial or factual.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). Here, Plaintiff’s complaint is both facially deficient under Spokeo, and factually deficient for a lack of traceability (infra Part III). Plaintiff’s claims are facially deficient where “the allegations contained in [the FAC] are insufficient on their face to invoke federal jurisdiction.” Id. “The district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6)….” Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). 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 v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing Raines v. Byrd, 521 U.S. 811, 818 (1997)). “The doctrine limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Id. “[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 (1992)). 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, 136 S. Ct. at 1547-48 (quoting Raines, 521 U.S. at 820 n.3). “To establish Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 13 of 34 Page ID #:230 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 4 - NOTICE; MOTION TO DISMISS OR STRIKE 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 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). “‘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). 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. Here, Plaintiff lacks standing to sue because she has not alleged she suffered a any injury that was caused by the alleged TCPA violation. Her only reference to damages is a reference to “statutory damages of at least $500 per violation and up to $1,500 per violation pursuant to 47 U.S.C. § 227(b)(3).” This bare reference to the statutory penalty section of the TCPA is insufficient to satisfy Plaintiff’s post- Spokeo pleading requirement that she allege a concrete injury. On this basis alone, the Court should dismiss the Second Amended Complaint for lack of standing. Even if the Court were to read into the Second Amended Complaint the allegation that Plaintiff was injured because she incurred a charge for the incoming cellular telephone call, the Second Amended Complaint does not adequately allege standing because it cannot connect such a claimed charge with the alleged TCPA violation – Defendants’ use of an automatic telephone dialing system (ATDS) to dial her cellular telephone number. Put differently, Plaintiff does not and cannot allege that Defendants’ use of an ATDS to dial her number caused her to incur a charge that she would not have incurred had Defendants manually dialed her number – conduct that would not have violated the TCPA. Therefore, Plaintiff did Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 14 of 34 Page ID #:231 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 5 - NOTICE; MOTION TO DISMISS OR STRIKE 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 not suffer an injury in fact that is traceable to Defendants’ alleged violation of the TCPA and accordingly lacks standing to make a claim for the TCPA violation here. The outcome would not change if the Court were to again grant Plaintiff leave to amend based on an unpleaded and hypothetical argument that she incurred injury in wasting time to answer the ATDS-dialed call or in being forced to recharge her phone’s battery. As with a hypothetical charge for the call, these injuries are not connected to Defendants’ alleged use of an ATDS to dial her number. “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). Here, Plaintiff would have been no better off assuming Action Marketing dialed her number manually (and thus indisputably called her without violating the TCPA). She would have had to expend the same amount of time answering and addressing the manually dialed telephone call and would have incurred the same amount of battery depletion. Further, that the use of an ATDS may have allowed Action Marketing to place a greater number of calls more efficiently did not cause any harm to Plaintiff personally. See Silha v. ACT, Inc., 807 F.3d 169, 174-75 (7th Cir. 2015) (“[A] plaintiff’s claim of injury in fact cannot be based solely on a defendant’s gain; it must be based on a plaintiff’s loss.”). In the language of Spokeo, any ham Plaintiff can allege is indisputably divorced from any concrete harm caused by the alleged violation of the TCPA. See Spokeo, 136 S. Ct. at 1549 (holding “a bare procedural violation, divorced from any concrete harm, [does not] satisfy the injury-in-fact requirement of Article III”). Thus, Plaintiff has does not have the standing to sue required by Article III, and the Second Amended Complaint should be dismissed. See Ewing v. SQM US, Inc., No. 3:16-cv-1609, 2016 U.S. Dist. LEXIS 143272, at *8-9 (S.D. Cal. Sept. 29, 2016). Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 15 of 34 Page ID #:232 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 6 - NOTICE; MOTION TO DISMISS OR STRIKE 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. PLAINTIFF DOES NOT HAVE STANDING TO SUE HOME ORGANIZERS INC. OR CLOSET WORLD, INC. In addition to the absence of injury, “to demonstrate standing,…there must be a causal connection between the injury and the conduct complained of–the injury has to be fairly…traceable to the challenged action of the defendant, and not…the result [of] the independent action of some third party not before the court; and [] it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” Pritikin v. Dep’t of Energy, 254 F.3d 791, 796-97 (9th Cir. 2001) (quotes and cites omitted). Where, as here, a plaintiff sues the wrong defendant, she has no standing. See Raines v. Byrd, 521 U.S. 811, 818 (1997). As above, “a motion to dismiss for lack of subject-matter jurisdiction may either attack the allegations of the complaint or may be made as a `speaking motion’ attacking the existence of subject-matter jurisdiction in fact.” Thornhill Publishing Co. v. Gen’l Tel. & Elec., 594 F.2d 730, 733 (9th Cir. 1979) (cites omitted). In a Rule 12(b)(1) motion that challenges “the actual existence of subject matter jurisdiction,” “the allegations of the complaint are not controlling.” Trentacosta v. Frontier Pac. Aircraft Indus., 813 F.2d 1553, 1559 (9th Cir. 1987)(emphasis added). “[T]he nonmoving party [must] present evidence outside his pleadings in opposition….” Id. The court may consider evidence to resolve factual disputes. Kingman Reef Atoll Invs., L.L.C. v. U.S., 541 F.3d 1189, 1195 (9th Cir. 2008). “[N]o presumptive truthfulness attaches to plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id.. Plaintiff has the burden of proving jurisdiction is proper. McNutt v. Gen’l Motors Acceptance Corp., 298 U.S. 178, 56 S. Ct. 780 (1936). Here, dismissal is required because none of plaintiffs’ claims is fairly traceable to Home Organizers or Closet World. Even assuming Plaintiff had alleged Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 16 of 34 Page ID #:233 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 7 - NOTICE; MOTION TO DISMISS OR STRIKE 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 an injury, an injury is only “fairly traceable” to the defendant if it “can be traced to the defendant’s challenged conduct rather than to that of some other actor….” Ocean Advocates v. United States Army Corps. of Eng’rs, 402 F.3d 846, 860 (9th Cir. 2005); see Bennett v. Spear, 520 U.S. 154, 168-69 (1997) (no causation if injury complained of is independent action of third party not before the court). The causal connection for standing purposes “cannot be too speculative, or rely on conjecture about the behavior of other parties….” Ocean Advocates, 402 F.3d at 860. Whether as a motion to dismiss for lack of subject matter jurisdiction upon evidence under Rule 12(b)(1), or for a failure to state a claim under Rule 12(b)(6), both demonstrate the court has no subject matter jurisdiction. A. Home Organizers Does Not Sell Goods or Services and Does Not Make Telemarketing Calls Home Organizers does not sell any goods or services to the public. (Thompson Decl. ¶¶ 3; Rieman Decl. ¶ 5.) Although Closet World is a wholly owned subsidiary of Home Organizers, Home Organizers’ relationship to Closet World is that of a holding company providing limited services unrelated telemarketing. (Thompson Decl. ¶¶ 2, 5.) Closet World and Home Organizers are separately authorized to do business in the State of California; they each have their own sets of books and records, and distinct boards of directors, bank accounts, and payroll accounts. (Thompson Decl. ¶¶ 8-9.) Perhaps most importantly, Closet World holds a license that is necessary to provide custom closet and installation services and Home Organizers does not. (Thompson Decl. ¶ 7.) For these reasons, Home Organizers does not market any goods or services, through telemarketing or otherwise, and does not have any relationship with any telemarketer to do so. (Thompson Decl. ¶ 4.) In sum, Home Organizers has no involvement in the telemarketing performed for Closet World.(Rieman Decl. ¶ 6.) Because Home Organizers does not engage in telemarketing, itself or through a telemarketing firm, no injury is fairly traceable to anything that Home Organizers has done, and Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 17 of 34 Page ID #:234 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 8 - NOTICE; MOTION TO DISMISS OR STRIKE 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 Plaintiff has no standing to sue it. B. Closet World Does Not Make Telemarketing Calls Either Although Closet World has a call center that handles incoming calls from customers and prospective customers seeking information about Closet World’s goods and services, and about past sales and existing orders Closet World does not make any outgoing telemarketing calls. (Rieman Decl. ¶ 7.) Closet World doesn’t record any calls. Id. And because it doesn’t make outgoing calls, it does not need, does not have, and does not use any automated telephone dialing system. (Rieman Decl. ¶ 8.) C. Closet World’s Telemarketing Calls Have Been Made by Action Marketing, an Independent Contractor, Without Agency, Authorization or Ratification Outgoing telemarketing calls promoting Closet World’s goods and services have been made by an unaffiliated independent contractor known as Action Marketing. (Rieman Decl. ¶ 9; Farren Decl. ¶¶ 1, 3.) As between them, Action Marketing is required to ensure it complies with applicable law in performing its work for Closet World . (Farren Decl. ¶ 3.) No indicia of agency exist in this relationship. Action Marketing’s telemarketers are not hired, employed, trained, or fired by Closet World. (Rieman Decl. ¶ 10-11; Farren Decl. ¶ 6.) They do not use Closet World’s equipment. (Rieman Decl. ¶ 10-11; Farren Decl. ¶ 8.) They are not officed in a Closet World facility or supervised by any Closet World employee. (Rieman Decl. ¶ 10-11; Farren Decl. ¶ 2, 6.) Only Action Marketing has supervised and controlled their activities. Id. Neither Closet World, Inc. nor Home Organizers Inc. has ever had any responsibility or ability to control any of these functions, such as on what days and at what times to make calls. Action Marketing has decided those matters. (Rieman Decl. ¶ 11; Farren Decl. ¶ 6.) In fact, Action Marketing cannot and does not sell Closet World’s products or services over the phone, and it would receive no Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 18 of 34 Page ID #:235 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 9 - NOTICE; MOTION TO DISMISS OR STRIKE 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 financial benefit even if it attempted to do so. Id. Action Marketing has simply been paid at an hourly rate for its telemarketing services on an invoice-by-invoice basis. (Rieman Decl. ¶ 12.) To perform the telemarketing services, Closet World provides Action Marketing the economic terms of the promotion it would like to offer (e.g., 40% off of closet design and installation services in excess of a specified dollar amount). However it has never provided a script for Action Marketing’s employees to use in conveying those economic terms or anything else about the promotion. (Rieman Decl. ¶ 13; Farren Decl. ¶ 4.) Rather, Action Marketing trains its employees what language to use when speaking with customers and potential customers about Closet World’s promotions. (Farren Decl. ¶¶ 7, 11.) Action Marketing also does not have the ability to detail the nature and pricing of the array of goods and services that Closet World offers to the prospective customers they call. Rather, they just set up appointments for Closet World that Closet World separately compiles and confirms. (Rieman Decl. ¶¶ 13, 15.) Action Marketing employees do not have access to any of Closet World’s or Home Organizer’s computer systems and cannot enter or edit any data (or appointments) in those systems. (Rieman Decl. ¶ 15.) Moreover, Closet World has only used Action Marketing to promote Closet World’s goods and services to past and prospective customers who have previously provided names and phone numbers when seeking a quote or additional information, or with which Closet World has communicated with the customer for the delivery of goods or provision of services. (Rieman Decl. ¶ 14; Farren Decl. ¶ 5.) As a matter of fact, Closet World (and Home Organizers) never authorized or ratified Action Marketing’s conduct either. Neither Closet World nor Home Organizers was aware of the equipment that Action Marketing used to make telemarketing calls concerning Closet World’s promotions, nor how that equipment was used, much less authorized its use in violation of or in spite of the law after the Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 19 of 34 Page ID #:236 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 10 - NOTICE; MOTION TO DISMISS OR STRIKE 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 fact. (Rieman Decl. ¶¶ 16-17.) Neither was aware of whether Action Marketing obtained or failed to obtain the consent of participants in its telemarketing calls to have those calls recorded. they expected the very common explanation that calls may be monitored or recorded for customer service, quality assurance, and/or training purposes, in those or similar terms, and never intended that Action Marketing’s calls be recorded without the customers’ consent, nor approved of Action Marketing doing so in violation of the law after the fact. (Rieman Decl. ¶¶ 18-19.) Indeed, after this lawsuit was filed, Closet World sought and obtained confirmation from Action Marketing that it is complying with all of the laws applicable to its telemarketing business. (Rieman Decl. ¶ 20.) 1. Action Marketing’s Acts Are Not Traceable to Closet World Under a Theory of Actual Agency. As above, Plaintiff’s claim under the TCPA is premised on section 227(b)(l). which makes it “unlawful for any person . . . to make any call” under certain circumstances. And Plaintiff tacitly acknowledges that Defendants Closet World and Home Organizers did not initiate the calls to Plaintiff, thus precluding a claim on a direct liability theory; however, Plaintiff argues Defendants are vicariously liable for the calls made in violation of section 227(b)(l). Although TCPA § 227(b) does not explicitly provide for recovery under a vicarious liability theory, some courts have permitted recovery under ordinary principles of vicarious liability under federal common law: agency, authorization and ratification. “Agency is the fiduciary relationship that arises when one person (a ‘principal’) manifests assent to another person (an ‘agent’) that the agent shall act on the principal’s behalf and subject to the principal’s control, and the agent manifests assent or otherwise consents so to act.” Restatement (Third) Of Agency§ 1.01 (2006); see also Sarei v. Rio Tinto, PLC, 487 F.3d 1193, 1202 (9th Cir. 2007), on reh'g en banc, 550 F .3d 822 (9th Cir. 2008) (citing Moriarty v. Glueckert Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 20 of 34 Page ID #:237 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 11 - NOTICE; MOTION TO DISMISS OR STRIKE 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 Funeral Home, Ltd., 155 F.3d 859, 866 n.15 (7th Cir.1998) for the principle that federal common law of agency is derived from the Restatement of Agency); Sun Microsystems Inc. v. Hynix Semiconductor Inc., 622 F. Supp. 2d 890, 899 (N.D. Cal. 2009) (“Federal common law is in turn guided by those principles set forth in the Restatement of Agency.”). Here, Plaintiff fails to state a claim under any agency theory—formal agency, apparent authority, or ratification. “An agent acts with actual authority when, at the time of taking action that has legal consequences for the principal, the agent reasonably believes, in accordance with the principal’s manifestations to the agent, that the principal wishes the agent so to act.” Id § 2.01. The traditional agency test requires establishing: “(1) a manifestation by the principal that the agent shall act for him; (2) that the agent has accepted the undertaking; and (3) that there is an understanding between the parties that the principal is to be in control of the undertaking.” Sun Microsystems, 622 F.Supp.2d at 899 (citing Restatement (Third) of Agency § 1.01). A key requirement of classic common law agency is that the principal is “in control” of the agent’s actions. See United States v. Bonds, 608 F.3d 495, 506 (9th Cir. 2010) (“To form an agency relationship, both the principal and the agent must manifest assent to the principal’s right to control the agent.”); Lushe v. Verengo Inc., No. CV 13-07632, 2014 WL 5794627, at *2 (C.D. Cal. Oct. 22, 2014). Here, Plaintiff has not pleaded that Action Marketing was an agent acting with the actual authority of Closet World or Home Organizers. Further, the Declarations of Action Marketing LLC’s president, Derek Farren, and Mary Rieman of Closet World make it impossible for Plaintiff to succeed on that allegation even if it was present, because the Declarations demonstrate that Closet World did not grant Action Marketing the explicit authority to act as its agent, and Action Marketing never ceded control of the alleged marketing calls to Closet World, nor is it alleged that closet World itself made any statement to plaintiff which demonstrates or from which it can be inferred that Action Marketing was its Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 21 of 34 Page ID #:238 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 12 - NOTICE; MOTION TO DISMISS OR STRIKE 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 agent. See Thomas v. Taco Bell, 582 Fed. App’x 678, 679 (9th Cir. 2014). Closet World is not expert in the telemarketing business and never exercised control over the manner or means by which Action Marketing did its work as an independent contractor. Closet World gives Action Marketing the terms of its promotions (e.g. 25% off services over $500) and a list of names and numbers to call that Closet World compiles from calls it receives. That’s all. Beyond these basic parameters, Action Marketing, not Closet World, controls the content of the calls and the method and equipment it uses to do so. Action Marketing cannot give detailed pricing information. That comes from Closet World’s designers when they go to people’s homes. Action Marketing has no access to Closet World’s databases – customer or otherwise. In turn, Closet World has no ability to hire or fire any Action Marketing employee. As explicitly stated in both Action Marketing and Closet World Declarations, Action Marketing is an independent contractor, and the foregoing roles and responsibilities of the parties are consistent with this arms’- length relationship—not with agency. Accordingly, there can be no vicarious liability here based on the principle of actual authority. 2. Action Marketing’s Acts Are Not Traceable to Closet World Under a Theory of Apparent Authority. Similarly, Plaintiff has failed to state a viable claim that Action Marketing acted with apparent authority on behalf of Closet World or Home Organizers. “Apparent authority is the power held by an agent or other actor to affect a principal’s legal relations with third parties when a third party reasonably believes the actor has authority to act on behalf of the principal and that belief is traceable to the principal’s manifestations.” Restatement (Third) of Agency § 2.03 (2006). Apparent authority “cannot be established merely by showing that [the alleged agent] claimed authority or purported to exercise it.” NLRB v. Dist. Council of Iron Workers of Cal. & Vicinity, 124 F.3d 1094, 1099 (9th Cir.1997). Rather, it is only established “by proof of something said or done by the [alleged principal], on Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 22 of 34 Page ID #:239 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 13 - NOTICE; MOTION TO DISMISS OR STRIKE 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 which [the plaintiff] reasonably relied.” Id. Plaintiff has failed to plead the allegations necessary to satisfy the apparent authority requirement, as Plaintiff has not alleged anything that Closet World has said or done upon which she reasonably relied to infer that Action Marketing acted as Closet World’s agent. Rather, the few links she alleges between Closet World and Action Marketing are consistent only with the independent contractor relationship between the two parties. Specifically, Plaintiff asserts that Action Marketing was an agent of Closet World because (1) Action Marketing held itself out as calling on behalf of Closet World; (2) Action Marketing called people based on a list provided by Closet World; (3) Action Marketing offered Closet World’s goods and services; (4) Action Marketing had the ability to enter consumer information into Closet World’s sales or customer systems; and (5) Closet World knew or should have known Action Marketing was violating the TCPA. Even if accurate—and several of these statements are not—Plaintiff’s allegations do not demonstrate vicarious liability based upon apparent authority. Plaintiff’s list is an attempt to conform to examples of evidence “relevant in finding apparent authority” that the FCC provided in its 2013 Dish Network declaratory ruling. Dish Network, 28 F.C.C. Rcd. at 6592.1 But it cannot match more than one of the FCC’s examples—the ability of Action Marketing to use Closet World’s name in the calls—that is, by itself, not enough to be determinative 1 The FCC listed five examples of evidence, including: (1) access to detailed information regarding the nature and pricing of the seller’s products and services or to the seller's customer information, (2) the ability by the outside sales entity to enter consumer information into the seller's sales or customer systems, (3) the authority to use the seller's trade name, trademark and service mark, (4) that the seller approved, wrote or reviewed the outside entity’s telemarketing scripts, and (5) if the seller knew (or reasonably should have known) that the telemarketer was violating the TCP A on the seller’s behalf and the seller failed to take effective steps within its power to force the telemarketer to cease that conduct. Dish Network, 28 F.C.C. Rcd. at 6592. Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 23 of 34 Page ID #:240 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 14 - NOTICE; MOTION TO DISMISS OR STRIKE 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 of the apparent authority question. See Makaron v. GE Security Mfg., Inc., No. CV- 14-1274, 2015 U.S. Dist. LEXIS 75240, at *25-26 (C.D. Cal. May 18, 2015). This is especially true where none of the other examples is present, as is the case here. Id. Closet World did not grant Action Marketing access to detailed information regarding the nature and pricing of its products or its customer information. Rather, it shared with Action Marketing only customers’ names and telephone numbers and the promotion at hand. Closet World did not give Action Marketing any access to its sales or customer systems, let alone the ability to edit such information. Closet World played no role in drafting or approving Action Marketing’s call scripts. And Closet World did not know and could not reasonably have known that Action Marketing’s calls were allegedly made in violation of the TCPA. (Rieman Decl.; Farren Decl.) In short, Plaintiff’s sole allegations regarding apparent authority—all located in a single paragraph (¶ 12) of the Second Amended Complaint, substantially alleged on information and belief and thus inadequate under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 557-58, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) — are insufficient to state a claim against Closet World based on an apparent authority vicarious liability theory. 3. Closet World Never Authorized or Ratified Action Marketing’s Conduct As for authorization and ratification, Plaintiff has also failed to state a claim upon which relief may be granted under these vicarious liability standards. As above, no statement of authorization is alleged or exists. And ratification may only occur when the ratifying entity is capable of acting as the other entity’s principal. France Telecom S.A. v. Marvell Semiconductor Inc., 82 F. Supp. 3d 987, 995 (N.D. Cal. 2015); see Restatement (Third) of Agency § 4.04 cmt. b (stating that “[c]apacity to ratify requires that the would-be ratifier have capacity to act as a principal in a relationship of agency”). “Although a principal is liable when it Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 24 of 34 Page ID #:241 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 15 - NOTICE; MOTION TO DISMISS OR STRIKE 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 ratifies an originally unauthorized tort, the principal-agent relationship is still a requisite, and ratification can have no meaning without it.” Batzel v. Smith, 333 F.3d 1018, 1036 (9th Cir. 2003). The Ninth Circuit has stated that if an agency relationship was not established prior to the unauthorized tort, the continued funding of the other entity is not considered ratification. Id.; see, e.g., Thomas, 582 F. App’x at 679-80 (9th Cir. 2014) (stating that an agency relationship cannot be established by ratification of a text message marketing campaign without a prior existing agency relationship). Here, Plaintiff’s failure to plead and inability to demonstrate a principal- agent relationship between Closet World and Action Marketing is fatal to ratification as well. Without that prerequisite relationship, Closet World could not “ratify” the actions of Action Marketing. See Batzel, 333 F.3d at 1036; Makaron, 2015 U.S. Dist. LEXIS at *27. Additionally, there is absolutely no evidence presented that Defendants ever ratified any action by Action Marketing regarding telephonic communications with end-user consumers. Plaintiff has neither pleaded the substance of the alleged calls in her Second Amended Complaint nor the purported actions taken by Closet World to ratify them. Accordingly, Plaintiff cannot establish Closet World’s vicarious liability through ratification. Her boilerplate, conclusory allegations do not suffice. 4. No Theory of Aiding and Abetting Exists to Create Jurisdiction “Congress has not enacted a general civil aiding and abetting statute,” nor is there a presumption of liability for aiding and abetting. Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 182, 114 S. Ct. 1439, 128 L. Ed. 2d 119 (1994); id. at 175-77 & 181-85; In Re: Easysaver Rewards Litigation, 737 F. Supp. 2d 1159 (S.D. Cal. 2010). There is no authority for aiding and abetting a violation of the TCPA. Its plain language suggests the opposite. One “aids and abets the commission of an intentional tort if the person…knows the other’s conduct constitutes a breach of duty and gives Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 25 of 34 Page ID #:242 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 16 - NOTICE; MOTION TO DISMISS OR STRIKE 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 substantial assistance or encouragement to the other to so act.” Id. (citing Fiol v. Doellstedt, 50 Cal.App.4th 1318, 1325 (1996) (quoting Saunders v. Superior Court, 27 Cal.App.4th 832, 846 (1994))). “California courts have long held that liability for aiding and abetting depends on proof the defendant had actual knowledge of the specific primary wrong the defendant substantially assisted.” Casey v. U.S. Bank Nat’l Assoc., 127 Cal.App.4th 1138, 1145 (2005) (emphasis added); In re First Alliance Mortg. Co., 471 F.3d 977, 993 (9th Cir. 2006). A party must show “intentional participation with knowledge of the object to be attained.” Casey, 127 Cal.App.4th at 1145 (quotation omitted). Closet World would have to have had actual knowledge Action Marketing was violating the law and provided substantial assistance intending that the wrongful acts occur. These necessary facts are nowhere alleged adequately in the complaint. And they are belied by the true facts. Closet World had no knowledge of the alleged violations and did not do anything to participate in their alleged commission. (Reiman Decl. ¶¶ 16-21.) Upon these allegations and proof, neither Closet World nor Home Organizers can be held to have aided or abetted Action Marketing. Casey, 127 Cal.App.4th at 1145. IV. PLAINTIFF HAS FAILED TO STATE A CLAIM FOR A VIOLATION OF THE TCPA AGAINST HOME ORGANIZERS AND CLOSET WORLD FOR CALLS MADE BY ACTION MARKETING Rule 12(b)(6) dismissal is proper where there is a lack of a plausible legal theory, or the absence of sufficient facts, properly alleged, that are not contradicted by matters subject to judicial notice, or that are conclusory, unwarranted deductions of fact, unreasonable inferences, or conclusions of law. Twombly, 550 U.S. at 557- 58, 570; see also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); see Migliaccio v. Midland Nat’l Life Ins. Co., No. CV 06-1007 CAS (MANx), 2007 WL 316873, at *2 (C.D. Cal. 2007). Papasan v. Allain, 478 U.S. 265, 286, 106 S. Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 26 of 34 Page ID #:243 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 17 - NOTICE; MOTION TO DISMISS OR STRIKE 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 Ct. 2932, 92 L. Ed. 2d 209 (1986). Here, plaintiffs speculative and factually devoid conclusions are inadequate to allow the action to proceed against parties having nothing to do with making the calls plaintiff alleges were illegal. Plaintiff’s broad pleas for discovery are no more than an admission she has no idea whether there is any claim against Closet World or Home Organizers. V. THE COMPLAINT FAILS TO STATE A CLAIM FOR VIOLATIONS OF THE CALIFORNIA PRIVACY ACT Here, since Plaintiff alleges that Defendant is liable for a violation of the Penal Code by a third party, it is necessary to consider California Penal Code § 31, which imposes aider and abettor liability. An aider and abettor is someone who renders “aid with an intent or purpose of either committing, or of encouraging or facilitating commission of, the target offense.” People v. Beeman, 35 Cal. 3d 547, 551, 199 Cal. Rptr. 60, 61, 674 P.2d 1318, 1319 (1984). Specifically, aider and abettor liability requires proof of: “(1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates, the commission of the crime.” Beeman, 35 Cal. 3d at 561. For the reasons set forth below, any claims of Defendant’s liability based upon Cal. Pen. Code § 31 are unfounded. Importantly, it is necessary to establish that vicarious liability and aider and abettor liability are different. Principally, they differ in that vicarious liability does not require the defendant to have a specific mental state. People v. McCoy, 25 Cal. 4th 1111, 1117, 108 Cal. Rptr. 2d 188, 192, 24 P.3d 1210, 1213 (2001). Aider and abettor liability requires both knowledge of the direct perpetrator’s criminal intent and a personal criminal intent to have the criminal activity succeed. For purposes of comparison, while under vicarious liability an employer can be liable for the torts of its employee, under aider and abettor liability the employer must have a shared Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 27 of 34 Page ID #:244 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 18 - NOTICE; MOTION TO DISMISS OR STRIKE 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 criminal intent with the employee for liability to exist. Perez v. Van Groningen & Sons, 41 Cal. 3d 962, 967, 227 Cal. Rptr. 106, 108, 719 P.2d 676, 678 (1986) As demonstrated by In re Meagan R., 42 Cal. App. 4th 17, 49 Cal. Rptr. 2d 325, 328-32 (1996), aider and abettor liability cannot stand without knowledge of the direct perpetrator’s criminal intent. The court stated that "an aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose.” Id.at 22. There, a trial court found “Meagan” guilty of burglary because she and a man entered a woman’s home for the purpose of engaging in consensual intercourse, and the man stole items from the home. Meagan, however, was underage. The lower court found that knowledge of the criminal intent to commit statutory rape was sufficient to charge her as an aider and abettor in the burglary. Id. at 20, 21. The court subsequently reversed, holding that though aider and abettor liability can apply under the natural and probable consequences doctrine, knowledge of her own rape could not be used to establish liability for the burglary. Id. at 27. Summarily, this case clearly demonstrates the importance and particularity of the knowledge requirement. Additionally, Defendants had a right to reasonably presume that a third party will act lawfully. Tucker v. Lombardo, 47 Cal. 2d 457, 467, 303 P.2d 1041, 1047 (1956). As evidence by the facts shown above, Defendants reasonably presumed that the Action Marketing was acting lawfully, and they had absolutely no knowledge of that third party’s criminal intent, nor is it alleged. While Defendant hired the third party to place calls, there is no proof that Defendant had any knowledge of the third party’s intent to violate Cal. Pen § 632.7 or that the violations were occurring. It is also not the responsibility of the Defendant to disprove knowledge. In re Meagan R., 42 Cal. App. 4th at 22. Absent Plaintiff’s specific allegations that Defendants knew of the criminal intent, the knowledge requirement cannot be met and aider and abettor liability cannot be established. Further, while no evidence supports the assertion that Defendants had Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 28 of 34 Page ID #:245 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 19 - NOTICE; MOTION TO DISMISS OR STRIKE 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 knowledge, even if knowledge is established, knowledge alone is not sufficient to prove that a party aided and abetted a criminal act. Beeman, 35 Cal. 3d at 560. It was clearly held in Beeman “that the weight of authority and sound law require proof that an aider and abettor act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.” Id. at 557. Intent to encourage a crime is paramount; Defendant had no such intent and did not act in a manner that could even remotely display intent. E.g., People v. Hill, 77 Cal. App. 2d 287, 293, 175 P.2d 45, 48-49 (1946) (court held that presence is not enough to warrant aider and abettor liability, defendant must actively aid or encourage.). Any assertion that Defendant had criminal intent or encouraged a criminal act is factually baseless. In Lofton v. Verizon Wireless (VAW) LLC, No. 13-cv-5665 YGR, 2014 U.S. Dist. LEXIS 69983 (N.D. Cal. Mar. 14, 2014), Lofton alleged that Verizon violated Cal. Pen. § 632.7. There, Verizon had a policy that directed third party telemarketers to refrain from informing certain individuals that their calls were being recorded. They not only directed the action, but knew or should have known that those actions violated Cal. Pen. § 632.7. Accordingly, the district court denied Verizon’s motion to dismiss. That case is clearly distinguishable. Here, Defendant did not have a policy requiring the third party to record without consent and more importantly, did not have knowledge of the third party telemarketer’s intent to act criminally. While Lofton and the Defendant’s matter are similar in that the Plaintiffs allege violations of Cal. Pen. § 632.7, the critical facts are so distinguishable that the two are not comparable. Defendant had no knowledge of the third party telemarketer’s criminal acts and could not have encouraged the criminal wrongdoing. Thus, without these elements it is impossible to satisfy the requirements of aider and abettor liability. See People v. McCoy, 25 Cal. 4th at 1118. Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 29 of 34 Page ID #:246 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 20 - NOTICE; MOTION TO DISMISS OR STRIKE 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 VI. THE CLASS ALLEGATIONS SHOULD BE STRICKEN FOR A LACK OF TYPICALITY AND SUPERIORITY AND PREDOMINANCE OF INDIVIDUAL ISSUES For Plaintiff to establish the TCPA violation she seeks to plead, she must show that a cellular phone was used and that she suffered an injury as a result of an ATDS being used rather than simply receiving a call that was manually dialed (which is not illegal). To establish her CIPA claim, Plaintiff must also establish that she did not consent to the recording of the call. Plaintiff cannot make this proof on a classwide basis. Mini-trials are required to show a violation for each call involving each individual member of the putative class. For the lack of typicality, predominance of individual issues, and a lack of superiority, the TCPA Class and the Privacy Act Class cannot be certified for class action treatment, and these class action allegations should therefore be stricken. A. Class Allegations Should Be Stricken When a Class Action Cannot Be Maintained “[T]he Supreme Court has noted that ‘[s]ometimes the issues are plain enough from the pleadings to determine whether the interests of absent parties are fairly encompassed within the named plaintiff's claim.’” Sanders v. Apple Inc., 672 F. Supp. 2d 978, 990 (N.D. Cal. 2009) (citing General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982)). “Where the complaint demonstrates that a class action cannot be maintained on the facts alleged, a defendant may move to strike class allegations prior to discovery.” Sanders v. Apple Inc., 672 F. Supp. 2d at 990-91 (N.D. Cal. 2009) (granting motion to strike class allegations); see also Stearns v. Select Comfort Retail Corp., No. 08-2746 JF (PVT), 2009 WL 4723366, *14 (N.D. Cal. Dec. 04, 2009) (granting motion to strike class allegations, holding "[I]t is procedurally proper to strike futile class claims at the outset of litigation to preserve time and resources”). “[A]ny Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 30 of 34 Page ID #:247 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 21 - NOTICE; MOTION TO DISMISS OR STRIKE 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 competently crafted class complaint literally raises common ‘questions’….” Wal- Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). What matters for purposes of determining commonality and predominance is the presence of “common answers.”2 Id. Plaintiffs cannot meet either requirement. Here, there is no common answer to the essential, threshold question of whether a request for a ZIP code was made to each individual class member. Without a common answer to that threshold question, none of the other issues is sufficiently important to convince the court that the most efficient method of determining the rights of the parties is through a class action. Amchem, 521 U.S. at 615. “A class definition is inadequate if a court must make a determination of the merits of the individual claims to determine whether a person is a member of the class.” Herrera v. LCS Fin. Servs. Corp., 2011 U.S. Dist. LEXIS 58288, *8-9, C09- 02843 THE (N.D. Cal. June 1, 2011). That is because plaintiffs must prove the proposed class definition embodies “a distinct group of plaintiffs whose members [can] be identified with particularity.” Lerwill v. Inflight Mot. Pic., Inc., 582 F.2d 507, 512 (9th Cir. 1978); O’Connor v. Boeing N. Am., Inc., 180 F.R.D. 359, 367 (C.D. Cal. 1997). The definition “should be precise, objective, and presently ascertainable.” Id.; DeBremaeker v. Short, 433 F.2d 733, 734 (5th Cir. 1970); Lemus v. H&R Block Enters., LLC, 2010 U.S. Dist. LEXIS 133697, *6-7, CV-09- 03179 SI (N.D. Cal. 2010). Where mini-trials are required to establish fundamental elements of a claim, the claim is not a prospect for class treatment. B. Plaintiff is Not Typical And Individual Issues Predominate Even based solely upon the allegations of the FAC, the putative TCPA Class and the Privacy Act Class claims cannot be maintained for a lack of typicality, 2 Predominance is similar to, but more rigorous than, commonality under Rule 23(a)(3). Amchem Prods., Inc. v. Windsor, 521 U.S. 591, at 623 n.18, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997); Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir. 1998). Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 31 of 34 Page ID #:248 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 22 - NOTICE; MOTION TO DISMISS OR STRIKE 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 predominance of individual issues, and because a class action is not superior. To satisfy the typicality requirement of Rule 23(a)(3), “a class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” General Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364 (1982). Individual standing is a prerequisite for all actions, including class actions. See O'Shea v. Littleton, 414 U.S. 488, 494 (1974); Sierra Club v. Morton, 405 U.S. 727 (1972). Furthermore, the United States Supreme Court has reiterated that all elements of a class must be susceptible to proof on a common, classwide basis. Comcast Corp. v. Behrend, 133 S. Ct. 1426 (2013). Accordingly, where liability and the fact of injury and damage are not capable of measurement on a classwide basis a plaintiff “cannot show Rule 23(b)(3) predominance” because “[q]uestions of individual damage calculations will inevitably overwhelm questions common to the class.” Id. Just as anecdotal evidence is regularly held insufficient to prove the perception of the reasonable consumer, the single anecdote of plaintiff’s experience is insufficient to prove the actual occurrences of other putative class members. See Chamberlan v. Ford Motor Co., 369 F. Supp. 2d 1138, 1145 (N.D. Cal. 2005); Haskell v. Time, Inc., 965 F. Supp. 1398, 1406-07 (E.D. Cal. 1997). Here, neither injury nor a lack of consent to recording the call can be shown on a common basis. To the contrary, Action Marketing trained its employees that they must explain at the beginning of each recorded call that they are calling on a recorded line. (Farren Decl. ¶ 11.) Thus, without alleging any injury herself, Plaintiff has not sufficiently alleged that her claims are typical of those of absent putative class members. Nor has she alleged facts sufficient to show that the anecdote of her own experience would prove the claim of anyone else. Indeed, her own experience cannot show whether anyone else’s phone was a cellular phone, nor whether anyone did or did not consent to the recording of their call. Without an injury or a way to prove the claims of other putative class members with common answers to common Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 32 of 34 Page ID #:249 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 23 - NOTICE; MOTION TO DISMISS OR STRIKE 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 questions, plaintiff has no standing to sue and cannot represent any putative class. C. A Class Action is Not Superior Even where otherwise superior, a class action cannot be used to alter substantive rights. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997). In other words, the class action form cannot be used to avoid and subvert the obligation to show each class member’s individual standing. “Rule 23’s requirements must be interpreted in keeping with Article III constraints, and with the Rules Enabling Act, which instructs that rules of procedure ‘shall not abridge, enlarge or modify any substantive rights.’” Id. (quoting 28 U.S.C. §2072(b)). As a result, the burden of proof must be satisfied with regard to each class member’s claim as to liability and damages, as if asserted on an individual basis. See, e.g., Broussard v. Meineke Discount Muffler Shops, Inc., 155 F.2d 331, 345 (4th Cir. 1998); In re Fibreboard Corp., 893 F.2d 706, 712 (5th Cir. 1990). The class action form must also not subvert defendant’s right to defend the claim, either as to the claim’s required elements or affirmative defenses. Pursuant to Rule 23(b)(3), Plaintiff must establish that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In assessing the superiority and manageability of a class action, Plaintiff “bears the burden of demonstrating ‘a suitable and realistic plan for trial of the class claims.’” Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1189 (9th Cir. 2001), amended by 273 F.3d 1266 (9th Cir. 2001) (citation omitted). None can be shown where the use of a cellular phone and the lack of consent cannot be shown on a classwide basis. VII. CONCLUSION Plaintiff has no standing to sue Home Organizers and never will. And for numerous reasons, Plaintiff has no standing to sue and there is no subject matter jurisdiction over her claims against Home Organizers and Closet World. To these Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 33 of 34 Page ID #:250 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W LO S A N G EL E S 61263467.1 - 24 - NOTICE; MOTION TO DISMISS OR STRIKE 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 matters are added the inadequacy of the allegations to allege any violation of the California Invasion of Privacy Act. For all these failings, the complaint should be dismissed, or in the alternative, the cited portions should be stricken. Respectfully submitted, DATED: November 28, 2016 ROBINS KAPLAN LLP By: /s/ Michael A. Geibelson __________ Michael A. Geibelson Christopher S. Reeder ATTORNEYS FOR DEFENDANTS CLOSET WORLD, INC. AND HOME ORGANIZERS INC. Case 8:16-cv-01584-JLS-AFM Document 28 Filed 11/28/16 Page 34 of 34 Page ID #:251 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S 61254261.1 DECLARATION OF GERARD THOMPSON 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 ROBINS KAPLAN LLP Michael A. Geibelson, Bar No. 179970 MGeibelson@RobinsKaplan.com Christopher S. Reeder, Bar No. 193041 CReeder@RobinsKaplan.com 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: (310) 552-0130 Facsimile: (310) 229-5800 Attorneys for Defendants CLOSET WORLD, INC. AND HOME ORGANIZERS INC. UNITED STATES DISCTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SHANNON SMITH, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOSET WORLD, INC., a Delaware Corporation; HOME ORGANIZERS INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants. Case No. 8:16-cv-1584-JLS-AFM DECLARATION OF GERARD A. THOMPSON IN SUPPORT OF DEFENDANT HOME ORGANIZERS INC. AND CLOSET WORLD, INC.’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STRIKE SECOND AMENDED COMPLAINT Hearing Date: January 20, 2017 Hearing Time: 2:30 p.m. Courtroom: 10A Complaint Filed: July 27, 2016 Case 8:16-cv-01584-JLS-AFM Document 28-1 Filed 11/28/16 Page 1 of 3 Page ID #:252 Case 8:16-cv-01584-JLS-AFM Document 28-1 Filed 11/28/16 Page 2 of 3 Page ID #:253 Case 8:16-cv-01584-JLS-AFM Document 28-1 Filed 11/28/16 Page 3 of 3 Page ID #:254 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S DECLARATION OF MARY RIEMAN 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 ROBINS KAPLAN LLP Michael A. Geibelson, Bar No. 179970 MGeibelson@RobinsKaplan.com Christopher S. Reeder, Bar No. 193041 CReeder@RobinsKaplan.com 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: (310) 552-0130 Facsimile: (310) 229-5800 Attorneys for Defendants CLOSET WORLD, INC. AND HOME ORGANIZERS INC. UNITED STATES DISCTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SHANNON SMITH, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOSET WORLD, INC., a Delaware Corporation; HOME ORGANIZERS INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants. Case No. 8:16-cv-1584-JLS-AFM DECLARATION OF MARY RIEMAN IN SUPPORT OF DEFENDANT HOME ORGANIZERS, INC. AND CLOSET WORLD, INC.’S MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STRIKE SECOND AMENDED COMPLAINT Hearing Date: January 20, 2017 Hearing Time: 2:30 p.m. Courtroom: 10A Complaint Filed: July 27, 2016 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 1 of 7 Page ID #:255 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 2 of 7 Page ID #:256 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 3 of 7 Page ID #:257 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 4 of 7 Page ID #:258 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 5 of 7 Page ID #:259 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 6 of 7 Page ID #:260 Case 8:16-cv-01584-JLS-AFM Document 28-2 Filed 11/28/16 Page 7 of 7 Page ID #:261 R O BI N S K A PL A N L LP A T T O R N E Y S A T L A W L O S A N G E L E S DECLARATION OF DEREK FARREN 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 ROBINS KAPLAN LLP Michael A. Geibelson, Bar No. 179970 MGeibelson@RobinsKaplan.com Christopher S. Reeder, Bar No. 193041 CReeder@RobinsKaplan.com 2049 Century Park East, Suite 3400 Los Angeles, CA 90067-3208 Telephone: (310) 552-0130 Facsimile: (310) 229-5800 Attorneys for Defendants CLOSET WORLD, INC. AND HOME ORGANIZERS INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION SHANNON SMITH, individually and on behalf of all others similarly situated, Plaintiff, vs. CLOSET WORLD, INC., a Delaware Corporation; HOME ORGANIZERS INC., a Delaware corporation; and DOES 1-50, inclusive, Defendants. Case No. 8:16-cv-1584-JLS-AFM DECLARATION OF DEREK FARREN IN SUPPORT OF DEFENDANT HOME ORGANIZERS, INC. AND CLOSET WORLD, INC.’S NOTICE OF MOTION AND MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STRIKE SECOND AMENDED COMPLAINT Hearing Date: January 20, 2017 Hearing Time: 2:30 p.m. Courtroom: 10A Complaint Filed: July 27, 2016 Case 8:16-cv-01584-JLS-AFM Document 28-3 Filed 11/28/16 Page 1 of 4 Page ID #:262 1 2 3 4 5 6 7 8 9 10 0.. 11 ~ ,_J~ <: Z.....ioo 12 -z ~<-Ll"'. Zen 14 en o:: o z~....i ....... q- CO<: 15 0 ~ 16 17 18 19 20 21 22 23 24 25 26 27 28 Closet World tlnd Action Mllrketing reltltionship 3. The relationship between Closet World, Inc. and Action Marketing is one in which Action Marketing serves as Closet World, Inc.' s independent contractor in performing promotional telemarketing services. Action Marketing is required to ensure it complies with applicable law in performing its work for Closet World, Inc. 4. When Closet World, Inc. wants to run a promotion, it provides to Action Marketing (1) the details of the promotion (for example, 40% off of closet design and installation services in excess of a specified dollar amount), and (2) a list of customer names and phone numbers to call and offer the promotion. Some of the promotions have been run for extended periods of time. As a result, the company will sometimes provide a supplemental list of names and numbers without details of a new promotion. 5. The names and numbers Action Marketing uses to market Closet World, Inc.' s promotions are names and numbers obtained by Closet World, Inc. from the customers and potential customers themselves in calls initiated by them to Closet World, Inc. when seeking a quote or additional information. 6. The people who make the calls to customers and potential customers are employed by Action Marketing, Inc. They are located in Action Marketing's offices. They are trained by Action Marketing. They use Action Marketing's equipment to make calls. Their activities are supervised and controlled by Action Marketing personnel. And they can only be hired and fired by Action Marketing. 7. Part of the training Action Marketing provides to the employees it uses to make calls about Closet World, Inc. 's promotions includes the language those employees are to use when speaking with customers and potential customers. Equipment Used by Action Mllrketing 8. Action Marketing has only one telephone system it uses to make calls to customers and potential customers. The system uses a list of numbers that Action Marketing obtains from its customer (Closet World, Inc.) which Action Marketing inputs into the system and draws upon to Case 8:16-cv-01584-JLS-AFM Document 28-3 Filed 11/28/16 Page 3 of 4 Page ID #:264 1 2 3 4 5 6 7 8 9 10 0... ~ 11 ~~ ~ Z....:i"' 12 <::'. .... ~ ....l<@ ~wv 13 <>-z ~W-:i'. Zoo 14 (/) i:::: 0 z~....i -F--c:::i< 15 0 ~ 16 17 18 19 20 21 22 23 24 25 26 27 28 dial numbers. 9. The Action Marketing dialing system does not use sequential numbers, nor does it generate or call numbers at random. The numbers available to be dialed in the system are only those that are provided by the customer, in this case, Closet World, Inc. and input into the system by Action Marketing. 10. When a customer is called, if there is no answer, the phone operator will either leave a voicemail message or hang up at his or her election. Announcement of Call Recording 11 . Action Marketing has trained its employees that they must explain at the beginning of each recorded call that they are calling on a recorded line. Since the filing of this lawsuit, Action Marketing has retrained its employees and reinforced the need to explain at the outset of each recorded call that the call is being made on a recorded line. I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true and correct and that this declaration as executed at Torrance _ ____ ____ ~, California on the _27_th day of September, 2016. By:_~-~_,_~--'---~---- nJ:;rT AD A TTrYl\T ni; nJ:;DJ:;V i; A DDJ:;l\T I Case 8:16-cv-01584-JLS-AFM Document 28-3 Filed 11/28/16 Page 4 of 4 Page ID #:265