1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 23cv0134 DMS (BLM)

TRACY DAVIS,

11 Plaintiff, ORDER (1) FOLLOWING REMAND 12 v. AND (2) GRANTING IN PART AND

DENYING IN PART DEFENDANT’S

13 ROCKLOANS MARKETPLACE, LLC

MOTION TO DISMISS

d/b/a ROCKET LOANS, 14 Defendant. 15 16 17 On September 28, 2023, this Court issued an order granting in part and denying in 18 part Defendant’s motion to dismiss Plaintiff’s Complaint. In that Order, the Court found 19 Plaintiff’s Complaint satisfied the requirements of Federal Rule of Civil Procedure 8, but 20 Plaintiff failed to set forth sufficient facts to support the use of an automatic telephone 21 dialing system (“ATDS”) under the Telephone Consumer Protection Act (“TCPA”). In 22 light of the finding on the ATDS element, the Court granted Defendant’s motion to 23 dismiss and dismissed the Complaint. 24 Defendant appealed that decision, and the Ninth Circuit affirmed this Court’s 25 rulings on the Rule 8 requirements and the ATDS element, but noted the Court failed to 26 address Plaintiff’s alternative allegation that Defendant violated the TCPA by calling 27 Plaintiff’s cellular telephone using an “artificial or prerecorded voice.” In light of that 28 / / / 1 oversight, the Ninth Circuit reversed this Court’s decision and remanded the case for 2 further proceedings. 3 Pursuant to the Ninth Circuit’s order, a mandate hearing was held on October 18, 4 2024. The Court now proceeds to address whether Plaintiff has alleged sufficient facts to 5 support the “artificial or prerecorded voice” element of her TCPA claim and whether 6 Plaintiff has sufficiently alleged a claim under the Rosenthal Fair Debt Collection 7 Practices Act (“RFDCPA”). 8 In Vaccaro v. CVS Pharmacy, Inc., No. 13-CV-174-IEG(RBB), 2013 WL 9 3776927, at *2 (S.D. Cal. July 16, 2013), the district court held an allegation that a 10 defendant called a plaintiff’s telephone number using an artificial or prerecorded voice 11 was sufficient to state a claim under the TCPA. The Court reasoned that “[f]actual 12 allegations do not cease to be factual even if they quote a statute’s language.” Id. 13 Since that time, however, the majority of district courts in the Ninth Circuit have 14 held that additional factual allegations are required to satisfy the artificial or prerecorded 15 voice element. See Andersen v. Nexa Mortgage, LLC, No. 8:24-CV-00619-DOC-ADSx, 16 2024 WL 3762098, at *4 (C.D. Cal. Aug. 12, 2024) (stating “plaintiff must include factual 17 allegations indicating that a prerecorded voice, as opposed to that of a real, live person, 18 was used.”); Whittaker v. Freeway Ins. Services Am., LLC, No. CV-22-8042-PCT-DGC, 19 2023 WL 167040, at *3 (D. Ariz. Jan. 12, 2023) (quoting Johansen v. Vivant, Inc., No. 20 12 C 7159, 2012 WL 6590551 (N.D. Ill. Dec. 18, 2012)) (stating when fact is element of 21 claim, “’it is not sufficient to recite that fact verbatim without other supporting details.’”); 22 Blair v. Assurance IQ LLC, No. C23-0016-KKE, 2023 WL 6622415 (W.D. Wash. Oct. 23 11, 2023) (citing Rogers v. Assurance IQ LLC, No. 2:21-CV-00823-TL, 2023 WL 24 2646468, at *3 (W.D. Wash. Mar. 27, 2023)) (stating district courts in Ninth Circuit 25 “generally require plaintiffs to plead circumstances sufficient to support an inference that 26 the calls were placed with an artificial or prerecorded voice.”); Allison v. Wells Fargo 27 Bank, N.A., No. 22-cv-0510-BAS-AHG, 2022 WL 10756885, at *3 (S.D. Cal. Oct. 18, 28 2022) (stating conclusory allegations concerning prerecorded or artificial voice do not set 1 forth plausible claim); Rahimian v. Adriano, No. 2:20-cv-02189-GMN-VCF, 2022 WL 2 798371, at *2-3 (D. Nev. Mar. 16, 2022) (same). “For example, a plaintiff should be able 3 to allege facts about the ‘tenor, nature, or circumstances of the alleged calls’ or ‘otherwise 4 demonstrate that a live human was not speaking during the calls.’” Blair, 2023 WL 5 6622415, at *3. 6 Here, Plaintiff fails to allege any facts supporting her allegation that Defendant 7 called her using an artificial or prerecorded voice. Although she repeatedly offers that 8 conclusory allegation, (see Compl. ¶¶ 27, 38, 42-43), there are no facts about the “’tenor, 9 nature, or circumstances of the alleged calls[.]’” Rogers, 2023 WL 2646468, at *4 10 (quoting Manopla v. Sansone Jr.’s 66 Automall, No. 17-16522 (FLW) (LHG), 2020 WL 11 1975834, at *2 (D.N.J. Jan. 10, 2020)). Nor are there any allegations to “demonstrate that 12 a live human was not speaking during the calls.” Id. As stated in Rogers, this kind of 13 information should be available to plaintiffs bringing TCPA claims. Id. “For example, 14 ‘[a] TCPA plaintiff could describe the robotic sound of the voice on the other line, the 15 lack of human response when he attempted to have a conversation with the person calling 16 him, the generic content of the message he received, or anything else about the 17 circumstances of a call or message contributing to his belief it was pre-recorded.’” Id. 18 (quoting Johansen, 2012 WL 6590551, at *3) (internal quotation marks omitted). 19 Plaintiff fails to include any of these facts in her Complaint, and without them, she has 20 failed to allege a plausible claim that Defendant called her using an artificial or 21 prerecorded voice. Accordingly, her TCPA claim must be dismissed.1 22 Turning to Plaintiff’s RFDCPA claim, that claim is based on California Civil Code 23 section 1788.14(c) and 15 U.S.C. § 1692d(5), the latter of which is incorporated into the 24 RFDCPA through California Civil Code section 1788.17. Section 1788.14(c) provides: 25 / / / 26

27 1 Because the Court will grant Plaintiff leave to amend this claim, the Court proceeds to 28 1 No debt collector shall collect or attempt to collect a consumer debt by means of the following practices: … (c) Initiating communications, other than 2 statements of account, with the debtor with regard to the consumer debt, when 3 the debt collector has been previously notified in writing by the debtor’s attorney that the debtor is represented by the attorney with respect to the 4 consumer debt and the notice includes the attorney’s name and address and a 5 request by the attorney that all communications regarding the consumer debt be addressed to the attorney, unless the attorney fails to answer 6 correspondence, return telephone calls, or discuss the obligation in question. 7 8 Cal. Civ. Code § 1788.14(c). Defendant argues Plaintiff’s claim under this section should 9 be dismissed because Plaintiff failed to plead that the calls and email at issue constitute 10 debt collection and because Plaintiff failed to allege Defendant actually received 11 counsel’s letter and that the letter gave notice of counsel’s legal representation. 12 Defendant’s first argument is directed primarily at emails Defendant allegedly sent 13 to Plaintiff after October 26, 2022, which is when her attorney prepared a letter to 14 Defendant consistent with the requirements of section 1788.14(c). (See Mot. at 8.) 15 According to Plaintiff, that “collection email” stated, in part: “Hi Tracy, Your loan 16 payment is 95 days overdue, and your account is severely delinquent. We understand that 17 these are challenging times, but we may have options available to you ….” (Compl. ¶ 18 40.) Defendant argues this letter is “nothing more than an update on the account status[],” 19 (Mot. at 8), but the Court disagrees. Contrary to Defendant’s assertion, Plaintiff describes 20 the message as a “collection email,” and it does more than simply provide Plaintiff with 21 the status of her account. It also suggests Defendant “may have options available” to 22 Plaintiff, options that presumably would assist Plaintiff in paying back her loan.2 Taking 23

24 25 2 Defendant also briefly mentions the phone calls it allegedly placed to Plaintiff’s cellular phone after October 26, 2022, and argues Plaintiff failed to allege those calls were anything 26 “more than just an update on the status of the loan[.]” (Id.) Defendant fails to mention, 27 however, that Plaintiff alleges Defendant called her over 150 times, “more than 2 times in a single day, and often more than seven (7) times per week[.]” (Compl. ¶ 41.) Assuming 28 1 Plaintiff’s factual allegations as true and construing those allegations in the light most 2 favorable to Plaintiff, the Court declines to dismiss Plaintiff’s RFDCPA claim based on 3 Defendant’s first argument. 4 Defendant’s second argument is similarly unavailing. First, Defendant argues 5 Plaintiff failed to allege facts to show that Defendant actually received counsel’s letter. 6 (Mot. at 8.) Defendant argues Plaintiff could have met this requirement by including “the 7 mail tracking information or any subsequent acknowledgement of the representation.” 8 (Id. at 9.) However, Plaintiff did plead the manner of delivery of the letter, namely that 9 on October 26, 2022, her counsel provided the letter to Docsmit, (Compl. ¶ 34), whose 10 “sole business is the sending of mail on behalf of customers, (id. ¶ 32), and that Docsmit 11 sent the letter to Defendant on October 27, 2022, as indicated on its certificate of mailing. 12 (Id. ¶ 35.) On the present motion, the Court must take these factual allegations as true, 13 and as so construed, they are sufficient to overcome Defendant’s argument. 14 Next, Defendant asserts Plaintiff failed to allege facts to show that counsel’s letter 15 gave actual notice of its legal representation of Plaintiff. (Mot. at 8.) But as with the 16 argument discussed above, Plaintiff did so allege. (See Compl. ¶ 30 (alleging the cease- 17 and-desist letter gave notice “that Plaintiff had retained counsel[.]”); ¶ 31 (stating letter 18 informed Defendant “that Plaintiff was represented by an attorney with respect to any and 19 all debts allegedly owed to or serviced by Defendant[.]”) Accordingly, this argument also 20 does not warrant dismissal.3 21 / / / 22 23 24 these allegations are true, which the Court must do on the present motion, it is unclear why 25 Defendant would be making that many phone calls simply to provide Plaintiff with the status of her account. 26 3 In a related argument, Defendant suggests Plaintiff failed to allege Defendant had actual 27 knowledge of counsel’s legal representation of Plaintiff. (Mot. at 9.) In light of the allegations concerning the mailing of the letter to Defendant and the letter’s contents, the 28 1 Defendant’s final argument is the Complaint fails to allege the letter contained 2 || certain necessary details such as Plaintiff's account number, address, etc. (/d.) In support 3 || of this argument, Defendant relies on Jackson vy. First National Bank of Omaha, No. CV 4 || 20-1295 DSF (JCx), 2022 WL 423440, at *3 (C.D. Cal. Jan. 18, 2022), and Wright v. 5 || USAA Savings Bank, No. 2:19-cv-00591 WBS CKD, 2020 WL 2615441, at *6 (E.D. Cal. 6 || May 22, 2020). However, neither of these cases states that a letter of representation must 7 ||include this information. The Jackson court was citing the defendant’s argument that this 8 ||information was required, and the case the defendant relied on for that argument, Wright, 9 || says nothing of these details.*, Defendant’s motion to dismiss Plaintiff's RFDCPA claim 10 |/is therefore denied. 11 In light of the discussion above, the Court grants Defendant’s motion to dismiss 12 || Plaintiff's TCPA claim on the ground Plaintiff failed to allege specific facts to support 13 ||the element of an “artificial or prerecorded voice.” Defendant’s motion to dismiss 14 || Plaintiff's RFDCPA claim is denied. Plaintiffis granted leave to amend her TCPA claim 15 |/to cure the deficiencies set out above. Plaintiff is cautioned that if her First Amended 16 ||Complaint does not cure these deficiencies, her TCPA claim will be dismissed with 17 || prejudice and without leave to amend, and lacking a federal claim, Plaintiff's Complaint 18 || will be dismissed for lack of subject matter jurisdiction. The First Amended Complaint 19 be filed on or before December 6, 2024. 20 IT IS SO ORDERED. 21 |}Dated: November 26, 2024 > 2 a Yn: 33 Hon. Dana M. Sabraw, Chief Judge United States District Court 24 25 26 27 28 4 The Court also notes that both Jackson and Wright were orders on summary judgment motions, not motions to dismiss.

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