DEFENSE WIN!: California Court Grants Defendant’s Motion to Dismiss Due to Plaintiffs’ Failure to Plausibly Allege Direct or Vicarious Liability

Hey TCPA World!  

March Madness🏀 has been, well, madddd! and the World Baseball Classic ⚾ was an amazing exhibition of persistence and skills!  

Speaking of skills, let’s discuss an interesting case about vicarious liability which led to a Defense Win!  

In Trevor Barnes, et al. v. SunPower Corporation, No. 22-CV-04299-TLT, 2023 WL 2593271 (N.D. Cal. Mar. 16, 2023), the N.D. California Court granted defendant SunPower Corporation’s motion to dismiss on the basis that Plaintiffs failed to plausibly allege direct or vicarious liability.

According to the complaint, Plaintiff Barnes number was on the DNC list and he received two two calls from Defendant “offering its goods or services.” The first was from a 385 number and the “later return call to that number to an entity that  identified itself as “Green Energy Solutions.” After playing along (as so many serial plaintiffs love to do) Barnes claims he spoke with a woman who identified herself as working for SunPower.

Next, Plaintiff Brown did not allege that her number was on the DNC but received a pre recorded call where she pressed a number to be connected to find out who was behind the pre recorded call. Brown was connected to an agent where she expressed interest to the agent to make an appointment and then received a confirmatory text and confirmatory email from

So according to Brown, the ability of the caller to transfer her directly to the agent at SunPower Corporation indicated that the caller either worked at SunPower Corporation or was previously authorized to place the call by SunPower — as did the confirmatory text and email.

The Court disagreed and found Plaintiff Barnes made only conclusory allegations that the Defendant was directly or vicariously involved in transmitting the calls and text messages:

For example, Plaintiff Barnes alleges that the first call he received was from
caller ID 385-398-XXXX, but he does not allege this call originated directly from Defendant. In fact, Plaintiff Barnes alleges that a “later return call to that number to an entity that identified itself as Green Energy Solutions.” Plaintiff Barnes also claims he “spoke to a woman named Lia Smith, who identified herself as working for [Defendant].” However, no facts he has alleged support a plausible inference that Defendant itself made the two alleged calls or that Defendant has an agency relationship with “Green Energy Solutions.

Similarly — Plaintiff Brown failed to allege a plausible inference that Defendant itself made the original call or that Defendant has an agency relationship with “solar project” who made the initial call.

Importantly, he court also notes Brown does not allege that her number was on the DNC and she only received the alleged confirmatory email from after she voluntarily pressed a button to speak with an agent.

Plaintiff Brown does not allege that this initial call originated from Defendant. Instead, she alleges that she pressed a button as instructed and spoke with a woman named…

As the Court explained — both Plaintiffs allegations were simply not enough:

In other words, Plaintiffs here do not plausibly allege that Defendant directly made the alleged calls, nor do they plausibly allege what relationship, if any, they believe “Green Energy Solutions” and “solar project” had with Defendant and what, if any, control Defendant had over the persons who made the alleged calls.

Judge Trina Thompson ended by noting “[i]n determining whether vicarious liability may be imposed, the ‘extent of control exercised by the [principal]’ is the ‘essential ingredient.’

The SunPower decision is another reminder of why the proper use of a motion to dismiss can help TCPA defendants attack complaints that lack specific allegations required under vicarious liability theories.

What a great win for the Defense!  

Til next time, Countess! 


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