Risks of Robocalling

Recently a long standing client, a real estate broker in California, brought me a federal class action complaint that was based on the broker's salespersons alleged use of an auto-dialer and pre-recorded messages to offer services.

The complaint describes the type of conduct that supports a cause of action for willful violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq. ("TCPA") and claim of invasion of plaintiff's privacy by causing the unsolicited phone calls.

The salesperson allegedly made one or more unauthorized phone calls, including to plaintiff's cellular phone, using an automatic telephone dialing system ("ATDS") for the purpose of soliciting business from plaintiff.

The plaintiff is a resident of New Jersey, and the lead attorney is a New Jersey law firm that has associated a Los Angeles law firm in order to file the complaint in the US District Court for the Central District of California. 

The TCPA was enacted in 1991 to protect consumers from unsolicited and unwanted telephone calls and text messages like those alleged to have been made by the salesperson.  Plaintiff sought an injunction requiring the broker to cease all unsolicited text messaging activities to consumers, or text messaging activities after a consumer requests that the texts stop, and an award of statutory damages to the members of the Class under the TCPA equal to $500 per violation, together with court costs, reasonable attorney's fees, and treble damages for knowing and willful violations.

Plaintiff alleges that naming the broker as the defendant includes the broker's officers, directors, vice-principals, agents servants, or employees involved in committing the violations with the full authorization, ratification or approval of the broker or done in the routine normal course and scope of such employment.

The federal court had subject matter jurisdiction as the action arose under the TCPA, a federal statute, and jurisdiction over the broker because it conducts significant business in the District where the complaint was filed, and the alleged unlawful conduct occurred in, was directed to, or emanated from the District.

The TCPA recognizes that unrestricted telemarketing can be an intrusive invasion of privacy.  The TCPA restricts telephone solicitations (i.e., telemarketing) and the use of automated telephone equipment, including automatic dialing systems, artificial or prerecorded voice messages, SMS text messages, and fax machines.

After October 16, 2013, unless the recipient has given prior express written consent, the TCPA and Federal Communications Commission ("FCC") rules under the TCPA:

-   prohibit solicitors from calling residencies before 8 am and after 9 pm local time, -  -   require solicitors to provide their name, the name of the person they are calling on behalf of, and a telephone number or address where the person or entity can be contact, 

-  prohibit solicitations to residences that use an artificial voice or a recording

-  prohibit calls or texts to a wireless device or cellular telephone using automated telephone equipment or artificial or prerecorded voice

-  prohibit unsolicitated advertising faxes

-  prohibit certain calls to members of the National Do Not Call Registry

An entity, such a brokerage firm, can be liable under the TCPA for a call made on its behalf, even if the entity did not directly place the call.

The complaint alleged that the defendant operates a real estate company, and it utilizes a sophisticated telephone dialing system to call consumers with pre-recorded messages and with text individuals en masse promoting its services.  The broker allegedly failed to get the requisite prior consent prior to sending the text messages.

The complaint alleged the broker not only invaded the personal privacy of the plaintiff and members of the Class, but also intentionally and repeatedly violated the TCPA.  It alleged that defendant called plaintiff on her cellular telephone number via an ATDS and with a pre-recorded message.

The complaint was brought on behalf of all individuals in the United States who received a phone call initiated by an ATDS or with the use of a pre-recorded message made by or on behalf of the broker to the individual's cellular telephone, without prior express consent.

The complaint alleges the exact size of the Class is presently unknown but can be ascertained through a review of the broker's records, and individual joinder is impracticable.

Common questions for the Class include whether the broker's conduct violated the TCPA, whether Class members are entitled to treble damages based on the willfulness of the broker's conduct, whether the broker made phone calls to consumers using an ATDS to a telephone number assigned to a cellular phone service, and whether the broker and its agents should be enjoined from engaging in such conduct in the future.

The complaint requests an order certifying the action as a class action with plaintiff as the Class Representative, and designating the New Jersey law firm as Class Counsel, an award of actual or statutory damages for each negligent violation of the TCPA to each member of the Class, an award of treble actual or statutory damages for each knowing or willful violation to each member of the Class, injunctive relief prohibiting defendant's conduct complained of, and pre-judgment and post-judgment interest on monetary relief. 

Possible defenses to a violation of TCPA lawsuit include:

- express written consent to the telephone call 

- statute of limitations that is four years

- calls were not made using an ATDS or were made via manual dial, and this may require call logs and testimony from company personnel demonstrating that the calls at issue were manually dialed

- lack of evidence ascertaining who is or is not a member of the proposed class, and this is more effective where the class definition is demonstrably overbroad and where ascertaining the class members is not administratively feasible because there is inadequate or insufficient documentation that could be used to identify the class members 

The insurance carrier for the served defendant should be put on notice and a claim for a defense and indemnification should be made promptly under any related insurance policy.

LESSONS:  

1.         Use of an auto-dialer and pre-recorded messages may be possible in this digital age, but their use may result in a complaint in a class action federal lawsuit.

2.         Brokers should institute office rules to prevent salespersons or employees from violating the TCPA.

3.         Telephone call logs and other records should be maintained to prove telemarketing calls were made via manual dialing, and not by use of a ATDS or pre-recorded message.

Date of Separation in California Divorce

In the recent case of Lee v. Lin, the California Court of Appeal clarified the rules regarding determining the paramount issue of date of separation of the spouses.

In the marital dissolution action, appellant challenged the trial court’s determination that the parties legally separated in May 2012 when respondent moved out of the family residence. Finding no error, the Court of Appeal affirmed.

After 26 years of marriage, Husband moved out of the family residence in May 2012. He rented an apartment in a neighboring city, and occasionally interacted with Wife with whom he maintained an amicable relationship. Husband filed a dissolution petition in August 2014. 

Husband maintained the date of separation was in May 2012 when he left the family home. Wife contended the legal separation occurred when Husband filed for dissolution 27 months later. After a two-day hearing in 2017, the court found that legal separation occurred when Husband moved from the family home in May 2012. 

Ruling from the bench and tracking the language of Family Code section 70 defining “date of separation,” the court found “Husband’s intention to end the marriage occurred on May 21, 2012 and his actions since then have been consistent with that.” 

The court found Husband’s intent to end the marriage was clearly expressed by leasing an apartment, his intent was reinforced by relinquishing the key to the family home and refusing to give Wife a key to the apartment, and his post-move conduct was consistent with that intent. The court found the parties’ limited interactions after Husband’s move did not show an intent to reconcile and did not “overcome any clear act of ending the marriage by moving out.” 

Family Code section 771 classifies property acquired after the date of separation as the acquiring spouse’s separate property.  This includes earnings, and the date of separation can be an important issue in determining which property is separate, or is community and has to be shared between the spouses.

In 2016, the Legislature in Family Code § 70(a) defined “date of separation” as the date that a complete and final break in the marital relationship has occurred, as evidenced by both of the following: 

(1) The spouse has expressed to the other spouse his or her intent to end the marriage, and 

(2) The conduct of the spouse is consistent with his or her intent to end the marriage. 

A separation under section 771 requires not only a parting of the ways with no present intention of resuming marital relations, but also, more importantly, conduct evidencing a complete and final break in the marital relationship. 

Marital separation for purposes of section 771 requires both the subjective intent to end the marriage, and objective conduct demonstrating such intent. The parties’ individual intents are objectively determined from all relevant evidence before the court. 

The ultimate question to be decided in determining the date of separation is whether either or both of the parties perceived the rift in their relationship as final. The best evidence of this is their words and actions.  In determining the date of separation, the court shall take into consideration all relevant evidence.

The date of separation is a factual issue established by a preponderance of the evidence. 

Wife contends that the trial court misapplied the law by presuming that Husband’s move to an apartment was sufficient to establish the date of separation, and by requiring Wife to rebut that presumption. But no such presumption appeared in the trial record. In fact, Husband argued in his trial brief that no presumption applied to either party’s proposed separation date.  

Husband presented evidence that in May 2012, he expressed his intent to end the marriage and that his conduct while the parties were living apart was consistent with that intent. 

Wife presented evidence not to rebut any presumption, but for the court to weigh against Husband’s evidence in determining whether the May 2012 separation date had been shown by a preponderance of the evidence. 

The trial court’s date of separation finding was based on the evidence presented, not on the application of a presumption.  

Citing the requirement in section 70 that the intent to end the marriage be communicated to the other party, Wife complains that the trial court did not find Husband had verbally informed her of his intent to end the marriage. 

The statute requires evidence that “[t]he spouse has expressed to the other spouse his or her intent to end the marriage” and also directs the court to “take into consideration all relevant evidence.” (§ 70, subds. (a)(1), (b).) The statute does not require express findings as to a declaration of intent or conforming conduct. 

In any event, Husband testified that he told Wife the marriage was over when he announced he was moving out, and the trial court found him credible. Husband’s testimony, even without an express finding, is evidence that supports the trial court’s decision and satisfies the statute. 

LESSONS:

1.         In establishing the date of separation, one spouse should move out of the shared residence, and express to the other spouse that the marriage was over and an intent to end the marriage. 

2.         Communications establishing the intent to end the marriage should be in writing, and confirm that both spouses received the communications.

3.         The conduct of the spouse seeking to end the marriage should be consistent with the intent to end the marriage, and filing a petition for dissolution can be an important factor.