By Elizabeth Alt | Feb 12, 2018

SAN DIEGO, Calif. (Legal Newsline) – The counsel for Rady Children's Hospital-San Diego filed a joint motion to continue pretrial deadlines Feb. 2 in a case over allegedly harassing phone calls.

The motion states that the hospital's lead counsel, Stephen H. Turner, has been addressing medical issues that have kept him out of the office and delayed preparation of the case.

The U.S. District Court for Southern District of California previously denied requests from Rady Children's Hospital-San Diego for the case against it to be dismissed. The court denied the requests in October. 

Two plaintiffs sued Rady Children’s Hospital in San Diego in February 2017 over allegations of harassing phone calls using pre-recorded messages in violation of the Telephone Consumer Protection Act.  

The October opinion states that Rady Children’s Hospital filed a motion to stay or dismiss for multiple reasons, one being a request that the trial be held until the U.S. Court of Appeals for the District of Columbia makes a decision in a lawsuit involving ACA International case that concerns how TCPA claims are interpreted. Rady claimed that its case could be significantly impacted once the D.C. Circuit issues a decision. 

The hospital moved to strike the class action allegations or to dismiss the suit for its alleged failure to state a claim and lack of standing.

Judge William Q. Hayes wrote the October opinion.

Taneesha Crooks and Anthony Brown had an outstanding bill to Rady and claim that the pre-recorded messages kept coming from an automatic dial list after they requested not to receive further calls, and that they also received calls on phone numbers they had never given to Rady.

Hayes stated that the court had no way of knowing if the D.C. Circuit decision would impact Rady’s case and further noted that “Defendant has not sufficiently identified how the remaining issues before the D.C. Circuit in ACA International would impact this case.”

The ACA International case concerns “1) the type of equipment that constitutes an ATDS under the TCPA, (2) the definition of a 'called party' under the TCPA, and (3) the methods to revoke express consent,” but has not issued an official opinion, the court's opinion states.

Rady stated in its motion to dismiss that the plaintiffs have not established a concrete injury or injuries specific to each call received, referencing the Spokeo Inc. v. Robins decision in the motion as well, emphasizing that Crooks only alleged a “'bare procedural violation,' that is 'divorced from any concrete harm,'” which is not enough to state a TCPA claim.

The plaintiffs asserted that the allegations in their petition of “economic loss, invasion of privacy, annoyance and wasted time as a result of the calls,” constitute a concrete injury that satisfies the requirements for a TCPA claim, and further contended that “the TCPA establishes a substantive right to be free from certain phone calls without prior consent.”

Hayes agreed with the plaintiffs and ruled that their allegations of costs from incoming calls, personal frustration and distress met the requirements of a TCPA claim to establish a concrete injury.

The opinion also noted that although Rady did not believe the plaintiffs had provided enough facts to conclude that the alleged calls were made by an ATDS, “the factual allegations of the complaint are sufficient to support a reasonable inference that defendant used an ATDS in making the alleged calls to plaintiffs.”

Hayes concluded that Rady’s “motion to strike class allegations is premature at this stage of the proceedings.”

The opinion states that Rady claimed “any prejudice to plaintiffs caused by a stay is minimal.” 

In their response, counsel for the plaintiffs stated that “they would be significantly prejudiced by an unknown and indefinite delay in conducting discovery,” and that even if the ruling for ACA was released soon, it would not affect this case, the opinion states.  

Counsel for the defendant filed a joint motion to continue pretrial deadlines Feb. 2 for two months as the defendant's lead counsel has medical issues that needed addressed.

Crooks and Brown are represented by Abbas Kazerounian and Jason A. Ibey of Kazerouni Law Group APC in Costa Mesa, California; by Daniel G. Shay of Law Office of Daniel G. Shay in San Diego; and by Joshua B. Swigart and Yana A. Hart of Hyde & Swigart in San Diego.

Representing Rady Children’s Hospital is Lewis Brisbois Bisgaard & Smith LLP in Los Angeles.

U.S. District Court for the Southern District of California case number 3:17-cv-246-WQH-MDD

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