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Central District of California Grants Motion for Summary Judgment After Finding That Plaintiff Failed to Revoke Prior Express Consent To Be Called

The Central District of California recently granted summary judgment to the defendant on a TCPA claim in Mendoza v. Allied Interstate LLC, SACV 17-885 JVS (KESx), 2019 WL 5616961 (C.D. Cal. Oct. 22, 2019), finding that the plaintiff had not sufficiently proven revocation of consent to be called about two credit card accounts when he had revoked consent to be called about two other accounts serviced by the same card issuer.

Mendoza alleged that Allied, a debt collection company, had violated the TCPA in connection with collection calls regarding his JC Penney-branded and Synchrony-issued credit card accounts. When Mendoza opened the accounts, he provided his cell phone number and consented to receiving communications, including both text messages and calls from automatic telephonic dialing systems and/or artificial or prerecorded voices. After Mendoza became delinquent on the accounts, Allied made 351 collection calls to the phone number Mendoza provided on his credit card applications. Mendoza claimed that he had twice revoked consent to be called during calls with the card issuer, Synchrony.

The primary dispute was whether the scope of Mendoza’s revocations extended to his JC Penney accounts and to Allied. Recordings of the calls in which he revoked consent demonstrated that Synchrony had called Mendoza about two other accounts, with PayPal and Walmart. Mendoza had not specified that his revocation would extend to any other accounts. Mendoza also admitted in discovery that he never spoke with any debt collector specifically about his JC Penney accounts, and presented no other facts to support his assertion that he revoked consent regarding the JC Penney accounts. Indeed, Allied argued that it was never aware of any revocation.

The Court found that Mendoza had not offered evidence sufficient to support his allegation that he revoked consent as to his JC Penney accounts. In so holding, the Court distinguished Jara v. GC Services Limited Partnership, 2018 WL 2276635, at *3–4 (C.D. Cal. May 17, 2018), another case involving multiple accounts. In Jara, the TCPA claim survived summary judgment, because the plaintiff had several times revoked her consent as to “all my accounts” and “all my debts.” In contrast, the Mendoza court explained, Mendoza did not reference having additional accounts. The Ninth Circuit has held that “the scope of a consumer’s consent depends on the transactional context in which it is given.” Mendoza, 2019 WL 5616961, at *5 (quoting Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1040 (9th Cir. 2017)). The Mendoza case highlights that the scope of revocation is similarly determined by context—and, by extension, that it can create a predominating individualized issue in some cases.

Currently, senders of lawful informational text messages must rely on context to meet customers’ intent and determine the scope of a customer’s opt-out request. A petition recently filed in the FCC seeks a declaratory ruling confirming that a business is permitted to send an opt-out confirmation message to clarify the scope of a customer’s opt-out.

© 2020 Faegre Drinker Biddle & Reath LLP. All Rights Reserved.National Law Review, Volume IX, Number 326


About this Author

Zoe Wilhelm, Drinker Biddle Law Firm, Los Angeles, Privacy and Litigation Attorney

Zoë K. Wilhelm has a broad litigation practice, with an emphasis on cases involving privacy-based claims, corporate governance disputes, and consumer class actions. She has substantial experience representing communications companies. Zoë writes and speaks frequently about data security and privacy litigation.



  • Successfully defended telecommunications company in a class action asserting...

Deanna J. Hayes Litigation Attorney Drinker Biddle

Deanna J. Hayes assists in various stages of legal proceedings and trial preparation, including conducting research, writing motions, and drafting other memoranda. Before joining the firm, Deanna was a judicial intern for the Hon. Michael Erdos, Pennsylvania Court of Common Pleas, Criminal Division.

In law school, Deanna was selected to serve as a Littleton Fellow for Penn Law’s Legal Practice Skills curriculum. As a Littleton Fellow, Deanna taught oral communication and legal writing skills to a small group of first-year law students. Deanna was also a member of Penn Law’s Mediation Clinic and acted as a third-party neutral mediator in matters throughout Philadelphia.

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