Tehrani v. Joie de Vivre Hospitality, LLC

4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA PAYAM TEHRANI, Case No. 19-cv-08168-EMC 8 Plaintiff, ORDER DENYING DEFENDANT SF 9 v. TREAT LP’S MOTION TO DISMISS 10 JOIE DE VIVRE HOSPITALITY, LLC, et Docket No. 62 al., Defendants.

14 Defendant SF Treat LP (“SF Treat”) has moved to dismiss Plaintiff Payam Tehrani’s Second Amended Complaint (“SAC”) pursuant to Federal Rule of Civil Procedure 12(b)(6).

16 Defendant alleges that Mr. Tehrani has not sufficiently established vicarious liability based on an agency relationship for Telephone Consumer Protection Act (“TCPA”) liability. As indicated below, the motion is DENIED.

19 I. DISCUSSION A. Management Agreement 21 A defendant is vicariously liable for violations of the TCPA where common law principles of agency would impose such liability. See Jones v. Royal Admin. Servs., 887 F.3d 443, 450 (9th Cir. 2018). Plaintiffs alleging vicarious TCPA liability under an agency theory must establish that the alleged wrongdoer had actual authority to place the unlawful calls. Id. That authority may be express or implied. Express actual authority “derives from an act specifically mentioned to be done [by the principal] in a written or oral communication.” Salyers v. Metro. Life Ins. Co., 871 27 F.3d 934, 940 (9th Cir. 2017) (internal quotation marks omitted). Implied actual authority comes to have the implied authority to do acts consistent with that direction.” Id. at 940 (internal quotation marks omitted).

3 Pursuant to the Management Agreement between DH Vitale and SF Treat, DH Vitale acted as SF Treat’s “agent for the operation of the Hotel.” (Docket No. 36, Exhibit A, at 4). The Agreement provides, in Section 3.15, that “[DH Vitale] shall not provide any Marketing Services for the Hotel except to the extent approved in writing by [SF Treat].” (Docket No. 36, Exhibit A, at 13). The Agreement defines “Marketing Services” as “the marketing and sales services to be furnished to the Hotel approved by [SF Treat] as part of the Annual Budget review process and without profit to [DH Vitale] or its Affiliates.” (Docket No. 36, Exhibit A, at 3). It provides that such services “shall include professional marketing, promotional activities, public relations services, advertising, representation at trade shows, arrangement of listings in relevant directories and other marketing, business promotions, sales promotions, publicity and public relations services.” (Docket No. 36, Exhibit A, at 5). The annual budget review process includes “a narrative description of [DH Vitale’s] plans and goals, including a marketing plan, for operating the Hotel for the ensuing Fiscal Year.” (Docket No. 36, Exhibit A, at 5).

16 B. Actual Authority 17 Defendant SF Treat argues that the Management Agreement “does not provide for the review or approval of specific communications between customers of the Hotel and DH Vitale personnel.” Mot. at 10. It notes that the Agreement merely requires that DH Vitale submit a “narrative description” of its marketing services as part of an annual budget review process, and this means that DH Vitale is not required to seek SF Treat’s approval “for issuing a specific call or text message.” Mot. at 17.

23 However, Plaintiff need not allege that SF Treat individually approved every text message communication by DH Vitale to plausibly plead vicariously liability under an agency theory. The essential ingredient to agency is the extent of control exercised by the employer. United States v. Bonds, 608 F.3d 495, 505 (9th Cir. 2010). SF Treat exercised control over DH Vitale’s marketing services by providing its written approval at the annual budget review process. In reviewing a reasonable inferences in plaintiff’s favor. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged”). Accepting Mr. Tehrani’s allegation that DH Vitale’s marketing services “includ[ed] text messages intended for in-house guests” and that SF Treat maintained control over the text messaging program, and drawing all reasonable inferences therefrom in Mr. Tehrani’s favor, the Court concludes that Mr. Tehrani has plausibly stated a claim of vicarious liability. See Thomas v. Taco Bell Corp., 582 8 Fed. Appx. 678, 679 (9th Cir. 2014) (affirming the district court’s analysis that control over the “manner and means” of a telemarketer’s actions could give rise to vicarious liability under the TCPA).

11 The allegations, together with the Management Agreement, are sufficiently specific and plausible to establish liability under Twombly and Iqbal.

13 II. CONCLUSION 14 For the foregoing reasons, the Court denies SF Treat’s motion to dismiss.

15 This order disposes of Docket No. 62.

17 IT IS SO ORDERED.

19 Dated: September 9, 2020 21 ______________________________________ EDWARD M. CHEN 22 United States District Judge