ONE PRONG DOWN, ONE MORE TO GO: Court Grants Partial Summary Judgment Finding No ATDS Use But Finds Triable Issue On Prerecorded Voice Use

Hello TCPAWorld, Monica here, and today I bring you a partial summary judgment victory. And you know we love those! While it wasn’t a complete win, the defendant managed to knock out the ATDS theory, while the artificial or prerecorded voice theory lived to see another day.

In Cruz v. United Collection Bureau, Inc., 2026 WL 3062149 (S.D. Cal. Oct. 13, 2026), the Southern District of California granted United Collection Bureau, Inc.’s (“UCB”) motion for summary judgment on the plaintiff’s ATDS prong, but denied summary judgment on the artificial or prerecorded voice prong, finding that the plaintiff’s testimony created a genuine dispute of material fact.

The case arose from UCB’s attempts to collect a delinquent Citibank debt owed by plaintiff Jesus Cruz. In October 2023, Cruz’s attorney mailed UCB a cease-and-desist letter notifying the company of his representation, directing it to stop communicating with Cruz, and revoking any prior consent to receive telephone calls, including those using artificial or prerecorded voices.

Now here’s where things get interesting, UCB maintained that it never received the letter. And because it allegedly never received the letter, it continued placing calls to Cruz. Cruz subsequently filed suit, alleging, among other things, that UCB violated the TCPA by calling his cellular telephone using an ATDS and artificial or prerecorded voices. Both parties moved for summary judgment, with UCB arguing that its dialing system did not qualify as an ATDS and that it had not used artificial or prerecorded voices when contacting Cruz, while Cruz argued that UCB’s continued calls to his cellphone violated the TCPA because he had revoked his consent.

The Court divided its analysis into two separate prongs: (1) the alleged use of an ATDS and (2) the alleged use of artificial or prerecorded voices.

The ATDS Prong

The Court began by examining whether UCB’s dialing system qualified as an ATDS under the TCPA.

UCB presented evidence establishing that it used LiveVox HCI to place calls to Cruz. In response, Cruz offered no evidence disputing UCB’s use of LiveVox HCI, arguing only that UCB’s supporting declaration was self-serving.

The Court rejected Cruz’s argument, explaining that simply calling UCB’s evidence self-serving and making speculative statements was insufficient to create a genuine issue of material fact. Accordingly, the Court found that UCB used LiveVox HCI.

The Court then turned to whether LiveVox HCI qualified as an ATDS.

Under Facebook, equipment must have the capacity to generate telephone numbers using a random or sequential number generator to qualify as an ATDS under the TCPA.

Here, the evidence established that LiveVox HCI lacked a random or sequential telephone number generator. The Court noted that by failing to point to any evidence in the record to dispute this fact, Cruz essentially conceded to it. Instead, he merely argued that whether the system possessed such a generator was immaterial to his prerecorded voice prong.

But the Court was not persuaded.

The Court explained that the prerecorded voice theory was irrelevant to determining whether LiveVox HCI qualified as an ATDS. Because the evidence established that LiveVox HCI lacked a random or sequential number generator, the Court found no genuine dispute of material fact and granted summary judgment in UCB’s favor on the ATDS prong.

The Artificial or Prerecorded Voice Prong

Unlike the ATDS prong, the prerecorded voice prong presented a different evidentiary question.

Before addressing the merits, the Court considered UCB’s request to strike paragraphs eight and nine of Cruz’s supplemental declaration under the sham affidavit rule.

UCB argued that Cruz’s declaration contradicted his earlier deposition testimony and therefore should not be considered at summary judgment. The Court disagreed.

Relying on Ninth Circuit precedent, the Court explained that the sham affidavit rule is subject to two important limitations. First, a court must determine that the alleged contradiction is actually a sham rather than automatically disregarding a declaration that differs from prior deposition testimony. Second, the inconsistency must be clear and unambiguous. A witness may elaborate on, explain, or clarify prior testimony, and minor inconsistencies resulting from honest mistakes or imperfect recollection do not justify excluding a declaration.

Applying those principles, the Court found no clear and unambiguous inconsistency between Cruz’s deposition testimony and his subsequent declaration.

First, Cruz had repeatedly testified during his deposition that the calls he received were not from live individuals. Further, his later declaration, which described pauses, delays, and robotic or prerecorded-sounding messages, supported that testimony.

Second, although Cruz acknowledged during his deposition that it was possible none of the calls were automated, the Court explained that acknowledging the possibility of being mistaken does not amount to conceding that one is mistaken.

Third, UCB argued that Cruz had testified that he routinely hung up when he heard a pause after answering a call, meaning he would not have remained on the line long enough to determine whether an artificial or prerecorded voice was used. However, the Court found that his testimony was, at most, equivocal and did not clearly contradict his declaration.

Accordingly, the Court declined to strike the challenged paragraphs and considered Cruz’s declaration in full.

Surviving the challenge to his declaration, however, was only half the battle. The real question was whether his testimony was enough to keep his prerecorded voice theory alive. And, spoiler alert, it was.

UCB submitted testimony from its compliance director, who explained that the company’s policy was not to use artificial or prerecorded voices on Citibank accounts. She further testified that, after reviewing Cruz’s account notes and available call recordings, she was certain no artificial or prerecorded voices had been used.

Cruz, however, submitted a declaration stating that the calls he answered were identical in nature, contained the same cadence and content, and sounded like prerecorded automated messages. He also described substantially similar voicemail messages and noticeable pauses or delays during calls.

The Court found this testimony sufficient to create a genuine dispute of material fact.

And here is something I found particularly interesting. While Cruz’s unsupported, conclusory statements challenging UCB’s use of LiveVox HCI were insufficient to create a genuine dispute of material fact, his testimony concerning the use of artificial or prerecorded voices was a different story.

The Court relied on Ninth Circuit precedent recognizing that even uncorroborated, self-serving declarations may defeat summary judgment when they are based on personal knowledge, legally relevant, and internally consistent.

Here, Cruz’s observations about how the calls sounded were based on personal knowledge, directly relevant to whether artificial or prerecorded voices were used, and consistent with his deposition testimony. Thus, the Court found that, unlike in the ATDS theory, a reasonable jury could credit Cruz’s testimony and disbelieve UCB’s compliance director.

The Court concluded that a triable question of fact remained as to whether UCB used artificial or prerecorded voices and denied summary judgment on that prong.

And just like that, Cruz lives to fight another day! We’ll see how far he goes. As always, stay tuned for the latest news on TCPA.