Van Patten v. Vertical Fitness Group, LLC

ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

Van Patten accuses Vertical Fitness and Advecor of sending two unsolicited’ text messages to his cell phone in violation of the federal Telephone Consumer Protection Act and California’s Unfair Competition Law. The Court previously certified a class for the TCPA claim. Now pending are cross-motions for summary judgment.

I. Factual Allegations

Van Patten entered a Gold’s Gym in Green Bay, Wisconsin on or around March 21, 2009, interested in joining. He filled *1071 out an application card, also called a “pre-qualification” or “desk courtesy” card, in which he provided his address and phone number and indicated his reasons for being interested in the gym. This application card was a prelude to a tour of the gym and a sit-down with a gym manager, who would then learn more about Van Patten’s interest in the gym and explain the various membership options to him. (Van Patten Dep. at 124:11-125:18; Berg-gren Dep. at 47:21-51:15.) Van Patten decided to join.

Aime Berggren was the gym manager who met Van Patten. She filled out a membership agreement for him to sign, which he did. (Van Patten Dep. at 125:13— 126:19; Berggren Dep. at 54:4-18;…