Judge Mark E. Windham, Case Number: 24STLC04750, Date: 2024-10-15 Tentative Ruling

Judge: Mark E. Windham, Case: 24STLC04750, Date: 2024-10-15 Tentative Ruling

Case Number: 24STLC04750 Hearing Date: October 15, 2024 Dept: 26

Koury v. 11758 La Maida St., LLC, et al.

DEMURRER

(CCP § 430.10, et seq.)

TENTATIVE RULING:

Defendants 1127 La Maida St., LLC, Yaaqov Rahlin, and Defendant 1 Stop Property Solutions, LLC’s Demurrer to the Complaint is OVERRULED. DEFENDANTS ARE TO FILE AND SERVE AN ANSWER TO THE COMPLAINT WITHIN 20 DAYS OF THIS ORDER.

ANALYSIS:

On July 1, 2024, Plaintiff Ken Koury (“Plaintiff”), in propria persona, filed the Complaint in this action against Defendants 1127 La Maida St., LLC and Yaaqov Rahlin. Defendant 1 Stop Property Solutions, LLC was added as a doe defendant on July 2, 2024.

Defendants filed the instant Demurrer to the Complaint on August 20, 2024. Plaintiff filed an opposition on October 3, 2024, and Defendants replied on October 7, 2024.

Discussion

Allegations in the Complaint

The Complaint alleges causes of action for (1) violation of 47 U.S.C. § 227 and 47 C.F.R. § 64.1200; and (2) violation of the CLRA. Plaintiff alleges Title 47 United States Code, section 227 and 47 C.F.R. § 64.1200 forbid (1) sending a recorded advertising message to telephone lines such as the lines subscribed to by plaintiff; (2) require providing proper identifying and contact information, maintaining and providing proper written do not call policies and procedures, training employees and keeping proper records. (Compl., ¶8.) These statutes and regulations provide for a private cause of action for the recipient. (Ibid.) Plaintiff received one telephone call from the defendants within the past year in violation of 47 USC 227and 47 C.F.R. § 64.1200. (Id. at ¶9.) The calls were made in willful and knowing violation of the statutes. (Id. at ¶12.) Defendants’ conduct was willful and malicious, intentionally calculated to harm and injure the plaintiff, and in conscious disregard of Plaintiff’s rights. (Id. at ¶13.) Defendants’ conduct as alleged in the Complaint violated the Consumer Legal Remedies Act. (Id. at ¶18.)

Demurrer to the Complaint

Defendants demur to the first cause of action in the Complaint for failure to allege facts sufficient to state a cause of action. (Citing Code Civ. Proc., § 430.10, subd. (e).) The demurrer is not accompanied by a meet and confer declaration as required by Code of Civil Procedure section 430.41, subdivision (a)(3). Although the demurrer contends that the meet and confer requirement was satisfied, no supporting declaration is included as required by the statute. However, Plaintiff’s opposition does not dispute that the meet and confer effort took place as stated.

The demurrer is brought on the grounds that the Complaint fails to allege violation of the Telephone Consumer Protection Act (“TCPA”), set forth at 47 C.F.R., section 1200. However, the demurrer does not cite any part of the Complaint in support of this argument. Instead, Defendants argue that Plaintiff operates his legal practice from the telephone number (818)715-9149, which the same number plaintiff alleges to be the residential number allegedly called by the defendants in his Complaint. First, there is no allegation in the Complaint that Plaintiff operates his legal practice from the telephone number (818)715-9149. Nor is there any request for judicial notice of such a fact. Second, there is no allegation in the Complaint of what phone number Defendants allegedly called. The basis for the demurrer, therefore, is improperly beyond the four corners of the Complaint or any request for judicial notice. It is black letter law that a demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Code Civ. Proc., § 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) To the extent Defendants admit that there is an ambiguity regarding the phone number they allegedly called and that Plaintiff should be required to clarify the ambiguity, no authority is cited in support of this contention. (Reply, pp. 1-2.)

The demurrer is also made on the grounds that the conduct alleged against Defendants in the Complaint falls under two exceptions to the TCPA set forth at subdivisions (a)(3)(ii) and (a)(3)(iii). Those exceptions provide that “[a] telephone call to any residential line using an artificial or prerecorded voice to deliver a message requires no consent if the call: . . . “(ii) [i]s not made for a commercial purpose and the caller makes no more than three calls within any consecutive 30–day period to the residential line and honors the called party's request to opt out of future calls as required in paragraphs (b) and (d) of this section; (iii) [i]s made for a commercial purpose but does not include or introduce an advertisement or constitute telemarketing and the caller makes no more than three calls within any consecutive 30–day period to the residential line and honors the called party's request to opt out of future calls as required in paragraphs (b) and (d) of this section.” (47 C.F.R. § 1200, subd. (a)(3).) Defendants contend these exceptions apply because the Complaint alleges a single phone call, not three phone calls within a consecutive 30-day period. The exceptions, however, require more than a showing of three phone calls in a consecutive 30-day period. The first exception also requires a showing that the phone call was not made for a commercial purpose. The second exception also requires a showing that the phone call does not include or introduce an advertisement or constitute telemarketing. Defendants do not contend that there are any allegations in the Complaint that these conditions are met for the phone call they allegedly made to Plaintiff.

Therefore, Defendants have not shown that the Complaint fails to allege a cause of action for violation of the TCPA.

Conclusion

Court clerk to give notice