California Federal Court Finds That Telephone Consumer Protection Act (TCPA) Plaintiff Consented To Debt Collection Calls by Providing Phone Number On Hospital Admission Form
On June 25, Judge Michael Anello of the Southern District of California granted summary judgment in favor of defendant Sharp Healthcare (“Sharp”) in Hudson v. Sharp Healthcare, 13cv1807-MMA, a purported class action alleging two counts under the TCPA (Count I for a negligent violation and Count II for a knowing/willful violation) regarding automated calls concerning unpaid hospital bills, ending that matter absent an appeal.
The original complaint was filed on August 2, 2013, and was comprised primarily of legal assertions (including citations to case law) and boilerplate asserting that defendant had violated the TCPA. The only purported fact alleged was that “Plaintiff was admitted to Sharp on or around September 25, 2012 and may have given them her cellular telephone number ending in 5954 at that time so Sharp could manually contact her about her treatment,” and that she did not consent to receiving autodialed calls. Complaint ¶¶ 14-15 [Dkt. No. 1] (emphasis added). The plaintiff later was granted leave to file an amended complaint that hedged her claims, alleging that if plaintiff provided her number to Sharp, “it was provided to Defendant solely to allow Defendant to contact Plaintiff about medical treatment follow-up” and reiterated that she “did not provide prior express consent to Defendant to be called by an [ATDS].” First Amended Complaint, ¶ 13 [Dkt. No. 29-2].
In granting summary judgment for Sharp, the court found that the plaintiff failed to raise any issue of material fact. First, the court noted that Sharp provided evidence of its admission policies and that they were followed—namely, that the plaintiff was asked to provider her address and telephone number, and did so, orally providing her cell phone number, signing the same form on which the number appeared, and initialing next to her phone number. Order Granting Defendant’s Motion for Summary Judgment, at 6 [Dkt. No. 56]. The court rejected as purely speculative and uncorroborated the plaintiff’s argument that her phone number “may have been obtained by Sharp prior to her signing the Attestation form, or obtained from a source other than Plaintiff.” Id. at 7-8. The court also rejected the plaintiff’s arguments that the act of “verifying” her number or signing a document with an auto-populated number could not constitute “prior express consent.” Id. at 9-10.
Second, the court accepted that per the FCC’s orders, providing one’s phone number in such circumstances constitutes “prior express consent,” and that “[i]n line with other courts in this district, this court treats the FCC Orders as binding.” Id. at 9. The court expressly rejected the reasoning of the court inMais v. Gulf Coast Collection Bureau, Inc., 944 F. Supp. 2d 1226 (S.D. Fla. 2013) (which the plaintiff had cited in her Complaint), agreeing with other decisions holding that Mais (which is currently fully briefed before the 11th Circuit) is an “outlier.” Order Granting Defendant’s Motion for Summary Judgment, at 9.
Third, the court rejected the plaintiff’s argument that the calls the plaintiff received were outside the scope of the consent she provided or that she revoked her consent. Id. at 11-16. Specifically, the court rejected the plaintiff’s argument that the scope of consent was limited by her subjective belief that her phone number would be used only to notify her of test results or provide medical information. The court noted that the TCPA does not require that calls be made for “the exact purpose” for which the number was provided, but only “bear some relation to the product or service for which the number was provided.” Id. at 11 (internal quotations omitted). Since the phone number was provided as the point of contact regarding the plaintiff’s treatment, the hospital collection calls were within the scope of the plaintiff’s consent. The court also rejected the plaintiff’s argument that she had revoked her consent, finding that the plaintiff’s conclusory assertion was refuted by the fact that she had accepted and returned defendant’s calls and “engaged in a cooperative dialogue” with defendant regarding payment of the bill. Id. at 15.