Stark v. Stall

COLLETTE STARK, ANTON EWING, Plaintiff, v. STUART STALL, et al., Defendant.

Case No.: 19-cv-00366-AJB-AHG

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

May 18, 2021

ORDER GRANTING DEFENDANT STUART STALL'S MOTION TO DISMISS WITHOUT LEAVE TO AMEND

(Doc. No. 36)

Pending before the Court is Defendant Stuart Stall's ("Stall") motion to dismiss Plaintiff Anton Ewing's ("Ewing") Third Amended Complaint ("TAC"). (Doc. No. 36.) Ewing filed an opposition to the motion, (Doc. No. 38), and Stall replied, (Doc. No. 39). The Court found this motion suitable for determination on the papers and without oral argument. See Civ. L.R. 7.1(d)(1). As explained below, the Court GRANTS Stall's motion to dismiss WITHOUT LEAVE TO AMEND.

I. BACKGROUND

The following facts are taken from the TAC and accepted as true for the limited purpose of resolving this motion. See Brown v. Elec. Arts, Inc., 724 F.3d 1235, 1247 (9th Cir. 2013). Ewing brings this action against Stall and Defendant US Global ("US Global") alleging violations of the Telephone Consumer Protection Act ("TCPA"). Stall is a California real estate broker selling homes in San Diego. (TAC ¶ F.) Stall allegedly hired and paid US Global to schedule real estate appointments on Stall's behalf. (Id. ¶ G.) Ewing alleges that both Stall and US Global called Ewing in violation of the TCPA. (Id. ¶ 33.) As a result of the telephone calls, Stall appeared at Ewing's home in early February 2019. (Id. ¶ VV.)

On February 22, 2019, Collette Stark ("Stark") and Ewing filed their Complaint in this Court alleging violations of the TCPA. (Doc. No. 1.) Stall filed his first motion to dismiss on March 15, 2019, which was rendered moot by Stark and Ewing's First Amended Complaint ("FAC"). (Doc. No. 6.) Stall moved to dismiss the FAC. (Doc. No. 7.) The Court granted Stall's motion to dismiss on August 7, 2019. (Doc. No. 14.) Ewing then filed a Second Amended Complaint ("SAC") on August 27, 2019. (Doc. No. 16.) Stall again moved to dismiss the SAC, which the Court granted on August 20, 2020. (Doc. No. 34.) In its order, the Court granted Ewing one final attempt to amend his allegations against Stall. (Id.) Ewing then filed a TAC, (Doc. No. 35), on September 1, 2020, which Stall moved to dismiss on September 15, 2020, (Doc. No. 36). This order follows.

II. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a plaintiff's complaint. See Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). "[A] court may dismiss a complaint as a matter of law for (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal claim." SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation and internal quotation marks omitted). However, a complaint will survive a motion to dismiss if it contains "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). In making this determination, a court reviews the contents of the complaint, accepting all factual allegations as true and drawing all reasonable inferences in favor of the nonmoving party. See Cedars-Sinai Med. Ctr. v. Nat'l League of Postmasters of U.S., 497 F.3d 972, 975 (9th Cir. 2007).

Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper fora court to assume "the [plaintiff] can prove facts that [he or she] has not alleged[.]" Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). However, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.

Pro se pleadings are held to "less stringent standards than formal pleadings drafted by lawyers" because pro se litigants are more prone to making errors in pleading than litigants represented by counsel. Hughes v. Rowe, 449 U.S. 5, 9 (1980) (internal quotations omitted); see Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987), superseded by statute on other grounds. Thus, the Supreme Court held that federal courts should liberally construe the "'inartful pleading' of pro se litigants." Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (quoting Boag v. MacDougall, 454 U.S. 364, 365 (1982)). However, pro se plaintiffs are expected to follow "the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); see Ghazali v. Moran, 46 F.3d 52, 54 (9th Cir. 1995); see also Jourdan v. Jabe, 951 F.2d 108, 109 (6th Cir. 1991) ("[W]hile pro se litigants may be entitled to some latitude when dealing with sophisticated legal issues, acknowledging their lack of formal training, there is no cause for extending this margin to straightforward procedural requirements that a layperson can comprehend as easily as a lawyer."). Thus, failure to meet procedural requirements will receive less latitude.

III. DISCUSSION

A. Ewing's TCPA Claims for Direct and Vicarious Liability Against Stall

To successfully plead a TCPA claim, a plaintiff must allege a defendant: (1) called a cellular telephone number or any service for which the called party is charged for the call; (2) using an automated telephone dialing system ("ATDS") an artificial or prerecorded voice; (3) without the recipient's prior express consent. See Los Angeles Lakers, Inc. v. Fed. Ins. Co., 869 F.3d 795, 804 (9th Cir. 2017) (quoting Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012)). As to the first element, to "make" acall under the TCPA, the person must either (1) directly make the call, or (2) have an agency relationship with the person who made the call. See Gomez v. Campbell-Ewald Co., 768 F.3d 871, 877-79 (9th Cir. 2014). And for the second element, an ATDS is "equipment which has the capacity to store or produce telephone numbers to be called, using a random or sequential number generator." Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

1. Ewing Does Not Plead Sufficient Facts to Support a Direct Liability Claim Against Stall

Ewing fails to clearly and concisely articulate how Stall directly participated in the alleged phone calls that violated the TCPA. This Court cautioned Ewing as to his "confusingly inconsistent allegations about who exactly called Ewing in violation of the TCPA." (Doc. No. 34 at 5.) Although Ewing plausibly alleges that he received telemarking robocalls, he fails to sufficiently plead that Stall was the individual who made the calls at issue. When discussing Stall's involvement, Ewing alleges, "[o]n February 7, 2019, a call to 619-719-9640, which is Mr. Ewing's cellular telephone, caused his cell phone to ring" and a prerecorded voice was on the end of the call. (TAC ¶ 26.) However, Ewing fails to allege a connection between that call and Stall. See Ewing v. Gonow Travel Club, LLC, No. 19-cv-297-BAS-AGS, 2019 U.S. Dist. LEXIS 120969, at *4 (S.D. Cal. July 19, 2019) (holding that although the plaintiff alleged facts raising a plausible inference that he had received "robocalls," he had not alleged any facts linking that particular defendant with the robocalls).

Additionally, Ewing alleges Stall placed "at least 9 telemarketing robocalls to Mr. Ewing." (TAC ¶ 28.) Then, Ewing inconsistently alleges US Global was on the line, not Stall. (Id.) Further, Ewing alleges Stall only appeared at Ewing's home "as a direct result of the illegal telemarking call made by US Global" and not by Stall himself. (Id. ¶ A.e., emphasis added.) Previously, Judge Buuns warned Ewing that if he alleges a TCPA violation, then Ewing must "explain who called him, when, and how he was harmed." See Ewing v. Empire Capital Funding Grp., Inc., No. 17cv2507-LAB (MDD), 2018 U.S. Dist.LEXIS 128358, at *3 (S.D. Cal. July 30, 2018). Lumping defendants together does not give the defendants or the Court enough information to evaluate individual claims against each defendant. Id. Yet, here, Ewing fails to clearly differentiate each defendant's involvement in the alleged phone calls. Ewing leaves the Court and Stall with insufficient information to evaluate Ewing's individual claims. Therefore, the TAC does not contain sufficient factual matter, taken as true, to state a plausible claim against Stall for directly violating the TCPA.

2. Ewing Does Not Plead Sufficient Facts to Support a Vicarious Liability Claim Against Stall

"[A] defendant may be held vicariously liable for TCPA violations where the plaintiff establishes an agency relationship, as defined by federal common law, between the defendant and a third-party caller." Gomez, 768 F.3d at 879. Three common law agency theories may provide a basis for vicarious liability: actual authority, apparent authority, and ratification. See Jones v. Royal Admin. Servs., Inc., 887 F.3d 443, 448-49 (9th Cir. 2018).

a) Ewing Does Not Plead Sufficient Facts to Support a Theory of Actual Authority

In order to establish that US Global had "actual authority" to place calls on behalf of Stall, Ewing must establish both an agency relationship and "actual authority to place the unlawful calls." Id. at 449. "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." Mavrix Photographs, LLC v. Livejournal, Inc., 873 F.3d 1045, 1054 (9th Cir. 2017).

Here, Ewing alleges Stall hired US Global as his agent. In the TAC, Ewing states in a conclusory manner, "Stall and US Global have a contractual relationship that amounts to and qualifies as an agency relationship[.]" (TAC ¶ A.f.) Ewing argues that "[b]oth the 9th Circuit and the US Supreme Court in the Gomez case have held that Stall is...