Baesel v. Mutual Of Omaha Mortgage, Inc. ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID BAESEL, individually and on Case No.: 20cv0886 DMS(AGS) behalf of all others similarly situated, 12 ORDER DENYING DEFENDANT’S Plaintiffs, 13 MOTION TO DISMISS v. 14 MUTUAL OF OMAHA MORTGAGE, 15 INC., a Delaware corporation 16 Defendant. 17 18 19 This case comes before the Court on Defendant’s motion to dismiss Plaintiff’s claim 20 under the Do Not Call (“DNC”) Provision of the Telephone Consumer Protection Act 21 (“TCPA”). Defendant moves to dismiss this claim on the ground that Plaintiff lacks 22 standing. Specifically, Defendant argues Plaintiff has failed to allege he suffered any 23 concrete harm and, therefore, he has failed to allege injury. 24 In support of this argument, Defendant relies primarily on an order granting the 25 defendant’s motion for summary judgment in another TCPA case, Shuckett v. DialAmerica 26 Mktg., Inc., No. 17CV2073-LAB (KSC), 2019 WL 3429184 (S.D. Cal. July 30, 2019). In 27 that order, the court granted the defendant’s motion for summary judgment, finding the 28 plaintiff failed to produce evidence “that she suffered a concrete, non-conjectural injury.” 1 ||/d. at *3. Defendant argues that order established certain pleading requirements for 2 standing under the TCPA, namely that a plaintiff must allege he was aware of or noticed 3 || the call at the time it was made and that the call “caused nuisance[.]” Jd. Defendant asserts 4 || Plaintiff has not met those pleading requirements here, therefore his DNC claim must be 5 || dismissed. 6 The Court disagrees with Defendant’s arguments for a number of reasons. First, 7 || Shuckett did not establish any pleading requirements for standing under the TCPA. 8 Second, as Defendant points out, Shuckett was an order on a motion for summary judgment, 9 ||not a motion to dismiss, which is the motion presently before this Court. Indeed, although 10 Shuckett Court granted the defendant’s motion for summary judgment, it denied the 11 ||/defendant’s motion to dismiss for lack of standing, finding the plaintiff had standing 12 ||‘‘regardless of whether she chose to pick up the phone or not.” Shuckett v. DialAmerica 13 || Mktg. Inc., No. 17CV2073-LAB (KSC), 2019 WL 913174, at *2 (S.D. Cal. Feb. 22, 2019). 14 || Here, as in Shuckett, Plaintiff has alleged that the three calls to his phone violated the DNC 15 || Provision of the TCPA, (Compl. 957-58), and that they caused him nuisance and invaded 16 privacy. (Ud. 942.) As in Shuckett, these allegations are sufficient to withstand 17 || Defendant’s motion to dismiss. Accordingly, Defendant’s motion is denied. 18 IT IS SO ORDERED. 19 ||Dated: October 20, 2020 20 ns my. L4\ Hon. Dana M. Sabraw 21 United States District Judge 22 23 24 25 26 27 28