Chinitz v. Intero Real Estate Services

Background

Ronald Chinitz brought a class action against Intero Real Estate Services under the Telephone Consumer Protection Act (TCPA), 47 U.S.C. § 227, and California’s Unfair Competition Law (UCL), Cal. Bus. & Prof. Code § 17200 et seq. He alleged that calls were made to residential telephone lines by or on behalf of Intero. The court had previously certified a National Do Not Call class and an Internal Do Not Call class.

Chinitz presented evidence that his landline received six calls from or on behalf of Intero within a 12-month period. He said the calls came from a sales associate associated with Intero and concerned relisting his house for sale. The parties disputed whether Chinitz’s telephone numbers were personal, non-business residential numbers.

Both parties moved for summary judgment. Summary judgment is a decision without a trial when the evidence shows no genuine dispute over a fact that could affect the outcome and the moving party is entitled to judgment under the law.

Evidence and judicial notice

The court sustained both parties’ objections to new evidence submitted with reply briefs and said it would not consider the declarations and exhibits attached to those briefs. The court overruled Intero’s other objections to Chinitz’s evidence because the evidence could be presented in an admissible form at trial. The court also took judicial notice of specified California Department of Real Estate materials, the Department’s publicly accessible website, and materials from Intero’s publicly available website.

Chinitz’s motion: vicarious liability

Chinitz sought summary judgment on whether Intero was vicariously liable for TCPA-violating calls made by or on behalf of sales associates and agents affiliated with Intero’s corporate-owned offices. Vicarious liability means one party may be legally responsible for another person’s conduct. Chinitz relied in part on apparent authority, which exists when a principal’s actions would lead a reasonable person to believe that another person had authority to act for the principal.

The court held that Intero’s listings of its agents on its website, its submission of associate information to the California Department of Real Estate, its permission for associates to solicit clients using Intero’s name, and its training materials instructing associates to identify their association with Intero established apparent authority as a matter of law. The court therefore granted summary judgment for Chinitz and found that Intero was vicariously liable under apparent authority for calls made by its corporate agents and sales associates.

That ruling did not decide whether particular callers were Intero agents when the calls were made or whether the calls violated the TCPA. The court stated that those issues would be decided at trial.

Chinitz’s motion: internal do-not-call policy

Chinitz also sought summary judgment on whether Intero violated the TCPA and its implementing regulation by failing to maintain an internal do-not-call list meeting all required standards. The requirements include maintaining a written policy and training personnel involved in telemarketing about the do-not-call list. Intero argued that the calls were not telemarketing calls and that there was no evidence they were made to residential telephone subscribers.

The court denied summary judgment on this issue. It found disputed facts about whether the calls were telemarketing calls to residential telephone subscribers, which were threshold issues for determining whether the cited TCPA provisions applied. The court also noted that maintaining adequate procedures is an affirmative defense, meaning Intero would bear the burden of proving that defense.

Intero’s motion

The court denied Intero’s motion for summary judgment on Chinitz’s TCPA claims. It found that Chinitz presented evidence that Intero sales associates initiated the calls, that the calls could be telemarketing calls, and that disputed facts existed concerning whether Chinitz’s number was a residential line and whether the calls involved numbers on the National Do-Not-Call Registry. The court also found evidence that Chinitz was on Intero’s internal do-not-call list but continued to receive calls within a 12-month period.

The court granted Intero’s motion for summary judgment on Chinitz’s UCL claim. Chinitz did not respond to Intero’s argument that he lacked standing. The court held that a UCL plaintiff must show an economic injury-in-fact—an actual personal loss of money or property—and found that Chinitz presented no evidence of such a loss.

Disposition

Judge Beth Labson Freeman ordered the following: