Karmen Self-Forbes v. Advanced Call Center Technologies, LLC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARMEN SELF-FORBES,
Plaintiff-Appellant,
v.
ADVANCED CALL CENTER
TECHNOLOGIES, LLC,
Defendant-Appellee.
No. 17-15804
D.C. No.
2:16-cv-01088-JCM-PAL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted August 16, 2018
San Francisco, California
Before: SCHROEDER, SILER,** and GRABER, Circuit Judges.
Plaintiff Karmen Self-Forbes challenges the district court’s decision to grant
summary judgment in favor of defendant Advance Call Center Technologies, LLC
(“ACT”). For the following reasons, we reverse and remand.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eugene E. Siler, Circuit Judge for the U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
FILED
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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In 2012, Self-Forbes opened a GE Money Bank QVC credit card account.
Shortly thereafter, she defaulted on her credit card payments. As a result, GE
Money Bank assigned Self-Forbes’s account to ACT to collect the unpaid balance.
Between January and April 2013, ACT placed 530 calls to Self-Forbes’s cellphone,
often calling her several times a day. Self-Forbes sued, asserting that ACT
knowingly, and/or willfully, placed automated calls to her cell phone without her
consent in violation of the TCPA, which prohibits any call using an automatic
telephone dialing system (“ATDS”) or prerecorded voice to a cellphone without
prior express consent by the person being called. See 47 U.S.C. § 227(b)(l)(A)(iii);
Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 952 (9th Cir. 2009).
The parties filed cross-motions for summary judgment. ACT argued that
Self-Forbes consented to the contact when she opened her credit card account.
Moreover, ACT stated that none of its calls resulted in direct contact with Self-
Forbes and that she never expressly revoked her consent. In response, Self-Forbes
filed a sworn declaration stating that she had repeatedly asked an ACT
representative to stop calling, but the calls continued.
The evidence revealed that ACT’s call logs were partially incorrect because
they mislabeled Self-Forbes’s phone as a landline rather than a cellphone.
Additionally, ACT’s call logs indicated that, on seventeen occasions—including
twice on January 23, 2013—ACT’s equipment suspected that a live person had

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answered the call, meaning that Self-Forbes likely answered the phone. Those
calls were routed to a live agent.
In her declaration and deposition, Self-Forbes testified under oath that she
received a phone call from a female agent of ACT twice in one day. Although she
did not recall the exact date, Self-Forbes estimated that the call was shortly before
the birth of her daughter on February 5, 2013. Self-Forbes recited in detail that she
told the representative, “Please stop calling, I’ve asked you to stop calling nicely.
Is this really necessary to call this many times in one day[?] I can’t even get on my
phone.” ACT records confirmed that Self-Forbes was connected to a female
representative on January 23, 2013, but ACT claims that the call did not result in
direct contact with Self-Forbes.
Despite this conflicting evidence, the district court granted ACT’s motion
for summary judgment, ruling that Self-Forbes’s declaration “merely restate[d] the
allegations set forth in the complaint” and that she could not “avoid summary
judgment by relying on conclusory allegations unsupported by factual data.”
We review de novo the district court’s grant of summary judgment. Oswalt
v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011). “We determine,
viewing the evidence in the light most favorable to the nonmoving party, whether
there are any genuine issues of material fact and whether the district court correctly
applied the relevant substantive law.” Id. (quoting Wallis v. Princess Cruises,

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Inc., 306 F.3d 827, 832 (9th Cir. 2002)). “By definition, summary judgment may
be granted only when there are no disputed issues of material fact . . . . Thus,
where the district court has made a factual determination, summary judgment
cannot be appropriate.” Animal Legal Def. Fund v. FDA, 836 F.3d 987, 989-90
(9th Cir. 2016) (en banc) (per curiam) (citation and internal quotation marks
omitted).
We have recognized three elements for a TCPA violation: (1) the defendant
called a cellular telephone number (2) using an ATDS or an artificial or
prerecorded voice (3) without the recipient’s prior express consent. See, e.g.,
Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012).
In this case, ACT does not dispute its use of an ATDS to call Self-Forbes’s
cellphone. Self-Forbes does not dispute that she applied for a QVC credit card and
agreed to the terms and conditions, thereby expressly consenting to phone calls for
debt collection purposes. Rather, the sole issue is whether Self-Forbes orally
revoked her consent as she alleges.
Although the TCPA does not explicitly grant consumers the right to revoke
their prior express consent, we have recently held that consumers may revoke
consent without temporal limitations. Van Patten v. Vertical Fitness Grp., LLC,
847 F.3d 1037, 1047-48 (9th Cir. 2017).

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In this case, ACT claimed that its call logs establish that it never spoke with
Self-Forbes. The district court accepted ACT’s claim and disregarded Self-
Forbes’s conflicting testimony—that she spoke with a female representative in
early 2013 and told that individual to stop calling her. The district court
improperly weighed the evidence and found ACT’s evidence to be more credible.
This factual determination—at the summary judgment stage—was premature, and
the district court usurped the role of the factfinder at trial.
Self-Forbes presented sufficient evidence to establish a genuine dispute of
fact as to whether she revoked her consent. Her declaration and deposition
contained detailed facts—the approximate date of the alleged phone calls, what she
allegedly told the ACT representative, and that the ACT agent was female—all of
which were corroborated by ACT’s call logs. Furthermore, ACT lacked an
incentive to document Self-Forbes’s alleged revocation of consent because it had
erroneously classified her number as a landline rather than a cellphone.
Accordingly, the district court erred in granting summary judgment.
REVERSED and REMANDED.

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