Saunders v. Sunrun, Inc.

CURTIS SAUNDERS, Plaintiff, v. SUNRUN, INC., Defendant.

Case No. 19-cv-04548-HSG

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

August 11, 2020

ORDER DENYING MOTION TO DISMISS, DENYING MOTION TO STAY, AND AWARDING COSTS

Re: Dkt. No. 31

Defendant Sunrun, Inc. ("Sunrun") moves to dismiss Plaintiff Curtis Saunders's class action complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), or in the alternative to stay the case pending payment of costs pursuant to Rule 41(d). Dkt. No. 31 ("Mot."). Briefing on the motion is complete. See Dkt. Nos. 38 ("Opp."), 42 ("Reply"). Plaintiff alleges two causes of action: violations of (1) the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq.; and (2) the California Invasion of Privacy Act ("CIPA"), Cal. Pen. Code § 632.7. Dkt. No. 1 ("Compl.") at ¶¶ 3, 6. For the reasons articulated below, the Court AWARDS costs, DENIES Defendant's motions to dismiss the Complaint, DENIES Defendant's motion to stay pending payment of costs, and STAYS the CIPA claim pending the California Supreme Court's review of Smith v. LoanMe, Inc., 43 Cal. App. 5th 844, 848 (Cal. Ct. App. 2019).

I. BACKGROUND

A. The Instant Case

On August 8, 2019, Plaintiff filed a class action complaint on behalf of a putative nationwide class, alleging that Sunrun had "sen[t] unauthorized text message advertisements to consumers' cellular telephones" and "record[ed] sales calls without obtaining proper advance consent." Compl. at 2.

Sunrun is a "national retailer and servicer of residential solar power systems" with its "principal place of business located in San Francisco, California." Id. at ¶¶ 1, 10. Plaintiff submitted an inquiry to Sunrun "attempt[ing] to get a quote about [its] solar products" some time in or prior to October 2018. See id. at ¶ 29. In October 2018, "[Sunrun] placed a call to Plaintiff's cell phone to follow up on his [inquiry]." Id. During the call, Plaintiff "inform[ed] [Sunrun] that he did not consent to receive any text message communications from [Sunrun]." Id. at ¶ 33. Nevertheless, "shortly thereafter [he] received the [following] two automated and generic text messages" from Sunrun:

Thanks for your interest in Sunrun! Next step: Please send over your electric bills. We'll use this history to estimate your solar savings.

To share your utility usage and bill history with Sunrun, please follow the below link: http://mysunrun.com/#/share-energy-usage?opptyId=0060d00001sLk8HAAS&email=curtiss@nedco.com&zipCode=89128&providerId=1662[.]

Id. at ¶ 34. According to Plaintiff, these were "telemarketing text messages" which "[Sunrun] sent . . . through the use of an automated telephone dialing system" (ATDS). Id. at ¶ 35.

Plaintiff further alleges that Sunrun "automatically recorded" the phone call "from the outset of the call," without first informing him that the call was being recorded. Id. at ¶¶ 30-31.

Plaintiff seeks relief on behalf of two nationwide classes, consisting of (1) "[a]ll persons in the United States and its Territories who, within the last four years, received one or more telemarketing text messages from Defendant on their cellular telephone after communicating to Defendant that it did not have consent to send text messages to that telephone number"; and (2) "[a]ll persons in the United States and its Territories who, within one year prior to the filing of this Complaint, received a phone call from Defendant on their cellular telephone regarding the sale of its products or services and which was recorded without their consent being obtained at the outset of the call." Id. at ¶ 39.

B. The Prior Action

On April 2, 2019, Saunders filed an action in the Circuit Court of Cook County, Illinois (the "Prior Action"). See Dkt. No. 31-2. Sunrun removed that action to the United States District Court for the Northern District of Illinois, Eastern Division. See Saunders v. Sunrun, Inc., No. 19-cv-03127 (N.D. Ill.). Sunrun informed Plaintiff that it intended to file a motion to dismiss the action for lack of personal jurisdiction, but before it could do so, Plaintiff "voluntarily dismissed" the Illinois suit. Id.

II. LEGAL STANDARD

A. Rule 12(b)(6)

Federal Rule of Civil Procedure ("Rule") 8(a) requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). A defendant may move to dismiss a complaint for failing to state a claim upon which relief can be granted. "Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory." Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). To survive a Rule 12(b)(6) motion, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when a plaintiff pleads "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

In reviewing the plausibility of a complaint, courts "accept factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). Nonetheless, courts do not "accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). And even where facts are accepted as true, "a plaintiff may plead [him]self out of court" if he "plead[s] facts which establish that he cannot prevail on his . . . claim." Weisbuch v. Cty. of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir. 1997) (quotation marks and citation omitted).

If dismissal is appropriate under Rule 12(b)(6), a court "should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (quotation marks and citation omitted).

B. Rule 12(b)(1)

Under Rule 12(b)(1), a party may move to dismiss based on the court's lack of subject matter jurisdiction. "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) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). A facial attack "asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. A factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id. In a factual attack, "the district court may review evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment," id. (citing Savage v. Glendale Union High Sch., 343 F.3d 1036, 1039 n.2 (9th Cir. 2003)), and without "presum[ing] the truthfulness of the plaintiff's allegations," id. (citing White, 227 F.3d at 1242).

C. Rule 41(d)

Rule 41(d) provides that "[i]f a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the same defendant, the court: (1) may order the plaintiff to pay all or part of the costs of that previous action; and (2) may stay the proceedings until the plaintiff has complied." Fed. R. Civ. P. 41(d). Rule 41(d) was intended to deter "forum shopping and vexatious litigation" and gives federal courts broad discretion to order the payment of costs, and to stay cases, though neither is mandatory. Millman v. Wilmington Sav. Fund Soc'y, FSB, Case No. 17-cv-04123-EMC, 2018 WL 2021236, at *2 (N.D. Cal. May 1, 2018) (quoting Esquivel v. Arau, 913 F. Supp. 1382, 1386 (C.D. Cal. 1996)). "[C]osts have been imposed only in cases where the plaintiff has brought an identical, or nearly identical, claim and requested identical, or nearly identical, relief." Garza v. Citigroup Inc., 311 F.R.D. 111, 114-115 (D. Del. 2015), aff'd, 881 F.3d 277 (3rd Cir. 2018).

III. DISCUSSION

Defendant argues that (1) Plaintiff fails to state a claim under the TCPA because his own allegations make clear that he consented to the text messages; and (2) Plaintiff lacks standing to bring a CIPA claim and fails to state a claim under CIPA; or, in the alternative, (3) the Courtshould stay the case until Plaintiff pays costs incurred by Defendant in the Prior Action, including attorney's fees. The Court addresses each argument in turn.

A. TCPA

Congress enacted the TCPA "to protect the privacy interests of telephone subscribers." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2012). To state a claim under the TCPA, a plaintiff must allege that "(1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system ["ATDS"]; (3) without the recipient's prior express consent." Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012); see also 47 U.S.C. § 227(b)(1)(A)(iii). A text message constitutes a "call" for purposes of the TCPA. See Satterfield, 569 F.3d at 954. As to the third element, "[t]he type of consent required depends on the content of the message." An Phan v. Agoda Co. Pte. Ltd., 351 F. Supp. 3d 1257, 1261 (N.D. Cal. 2018). If the text message "includes or introduces an advertisement or constitutes telemarketing," the sender must obtain "prior express written consent" of the recipient. 47 C.F.R. §§ 64.1200(a)(1)-(2).

i. Advertising/Telemarketing

Sunrun first argues that the two text messages Plaintiff alleges he received do not constitute telemarketing or advertising because Plaintiff "request[ed] . . . information about Sunrun's solar products." Mot. at 10.

Generally, an "advertisement" is "any material advertising the commercial availability or quality...