S.D. Cal. Court Dismisses Claims, Finding Text Messages at Issue Were Not “Telephone Solicitations”

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The Southern District of California recently granted (in part) a motion to dismiss in Gross v. GG Homes, Inc., 2021 WL 2863623 (S.D. Cal. 2021), because the text messages at issue were not “telephone solicitations” within the meaning of the TCPA. Notably, the Court found that the text messages did not qualify as solicitations because they were “targeted at procuring services from Plaintiff” (as opposed to selling something to Plaintiff).

Plaintiff alleged that Defendant (a real estate firm) violated the TCPA when it sent text messages (and placed calls) to her cell phone. Defendant filed a motion to dismiss challenging her Article III standing as well as the sufficiency of her factual allegations for her TCPA claims. The Court began by rejecting Defendant’s arguments that Plaintiff lacked standing, that Plaintiff failed to allege facts showing that Defendant might be responsible for the texts at issue, and that Plaintiff failed to allege that Defendant used an ATDS to send the text messages. But the Court agreed with Defendant that Plaintiff’s § 227(c) claims—based on sending the text messages to a number on the national Do-Not-Call Registry—must be dismissed.

The Court noted that § 227(c) of the TCPA directs the FCC to promulgate regulations to protect residential telephone subscribers’ privacy rights. In this case, the accompanying FCC regulation prohibits “telephone solicitation[s]” to anyone who “registered his or her telephone number on the national do-not-call registry.” The FCC regulation further defined “telephone solicitation” as “the initiation of a telephone call or message for the purpose of encouraging the purchase or rental of, or investment in, property, goods, or services.” (emphasis added).

The text messages at issue: (1) asked Plaintiff if she was aware of any off-market real estate listings; (2) noted that Defendant was looking for such listings; and (3) stated that Plaintiff could “TRIPLE END any off market deal you bring us!” The Court agreed with Defendant’s argument that the text messages were “more akin to an offer of employment than encouragement to purchase or invest in property or services.” Specifically, the Court found that the text messages were “targeted at procuring services from Plaintiff”, and thus were not “telephone solicitations” under the TCPA. The Court accordingly dismissed Plaintiff’s § 227(c) claims.

The decision is an important reminder that courts will not hesitate to dismiss deficient TCPA claims—even at the early stages of a litigation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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