“LAST-DITCH”: Court Rejects R.E.S.A. Inc.’s Arguments in TCPA Class Action as Gerald Lane Walks Away With A Win

Law Conference of Champions V ticket prices as I type: $389.00 (and rising).

Gerald Lane has taken some heat on TCPAWorld recently– so here’s a little redemption for him.

In Arguello v. R.E.S.A., Inc. 2026 WL 3169713 (N.D. Cal. Oct. 22, 2026) the Court overruled a motion aimed at dismissing a complaint Lane had filed and it shows how sticky these “quiet hours” cases are in some jurisdiction.

In Aguello the defendant had allegedly sent two marketing text message before 8 am to the plaintiff’s cell phone. Plaintif sued in a TCPA class action alleging violations of the TCPA’s quiet-hours provisions (that prevent telephone solicitations prior to 8 am.)

The defendant raised two arguments in moving to dismiss the complaint: i) that texts aren’t calls; and ii) that cell phones are not residential numbers for purposes of quiet hours claims. Both were DOA.

On the texts aren’t calls argument the court noted every case in California has held texts ARE calls for TCPA DNC purposes because of the combined impact of Satterfield and Howard. The court also rejected the argument that these cases were limited to 227(b) and not 227(c)–hate that– and held the word “call” exists in both provisions (which is true, as far as it goes, but does not answer the question completely because 227(b) says “any call” and 227(c) says “telephone call” and there must be a difference.)

On the second argument the court was very dismissive observing the defendant’s counsel “overlooks” a key provision making its “last-ditch” argument:

Defendant overlooks paragraph (e) of the regulation, which explicitly states that “the rules set forth in paragraph (c) … are applicable to any person or entity making telephone solicitations or telemarketing calls or text messages to wireless telephone numbers.” 47 C.F.R. § 64.1200(e) (emphasis added); see Izor v. Abacus Data Sys., Inc., No. 19-CV-01057-HSG, 2019 WL 3555110, at *2 (N.D. Cal. Aug. 5, 2019) (confirming 47 C.F.R. § 64.1200(e) “extends the protections afforded by subsections (c) and (d) to solicitations ‘to wireless telephone numbers.’ ”) And the Ninth Circuit has agreed with the FCC’s view that cell phones are “presumptively residential for purposes of § 227(c).” Chennette v. Porch.com, Inc., 50 F.4th 1217, 1225 (9th Cir. 2022). Defendant’s last-ditch argument is therefore unavailing and  does not provide a separate basis for dismissal.

Eesh not good. Looks like Defendant was pretty close to being sanctioned on that one.

So nice in for Gerald, even though the Defendant mostly torpedoed itself. haha.  But still the court did find he had pleaded an adequate case on behalf of this client so–hey. that’s a win.

If YOU want to win be sure to attend Law Conference of Champions V. Tickets are selling like hot cakes even though the show isn’t until next July! (Probably because prices rise daily.) Get yours before they rise again!

Chat soon.