ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Re: ECF No. 69.

JON S. TIGAR, District Judge.

Before the Court is a motion for summary judgment brought by Defendants SBE Entertainment Group, LLC; 6021 Hollywood Investors, LLC; 6021 Hollywood Operating Company, LLC; and Spoonful Management, LLC. ECF No. 69. The Court will deny the motion.

I. BACKGROUND

The following facts are undisputed: On June 3, 2013, Plaintiff Deric Walintukan purchased online tickets to a June 8, 2013 event at Create Nightclub in Los Angeles, California. As part of the checkout process, Walintukan provided his telephone number, which he contends was required to complete the purchase. The website contained no limiting language as to how Walintukan's phone number or other contact information could be used. On September 1, 2013, Walintukan received, at the phone number he provided, a text message promoting an unrelated event at Create. Five days later, he received a second text message promoting another unrelated event at Create. He successfully opted out of receiving any further text messages.

The parties dispute whether Walintukan's provision of his phone number when he purchased tickets to one event constituted consent to receive text messages promoting different events at the same venue.

II. LEGAL STANDARD

Summary judgment is proper when a "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A dispute is genuine only if there is sufficient evidence "such that a reasonable jury could return a verdict for the nonmoving party," and a fact is material only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When deciding a motion for summary judgment, the court must draw "all justifiable inferences" in the nonmoving party's favor and may not weigh evidence or make credibility determinations. Id. at 255.

Where the party moving for summary judgment would bear the burden of proof at trial, that party "has the initial burden of establishing the absence of a genuine issue of fact on each issue material to its case." C.A.R. Transp. Brokerage Co. v. Darden Rests., Inc., 213 F.3d 474, 480 (9th Cir. 2000). Where the party moving for summary judgment would not bear the burden of proof at trial, that party "must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party satisfies its initial burden of production, the nonmoving party must produce admissible evidence to show that a genuine issue of material fact exists. Id. at 1102-03. If the nonmoving party fails to make this showing, the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

III. DISCUSSION

In this putative class action, Walintukan asserts that Defendants violated his rights under the Telephone Consumer Protection Act ("TCPA"). "The three elements of a TCPA claim are: (1) the defendant called a cellular telephone number; (2) using an automatic telephone dialing system; (3) without the recipient's prior express consent." Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1043 (9th Cir. 2012) (citing 47 U.S.C. § 227(b)(1)).1 Text messages are "calls" within the meaning of the TCPA. Satterfield v. Simon & Schuster, Inc., 569 F.3d 946, 954 (9th Cir. 2009).

Defendants' motion challenges only the third element: whether Walintukan provided prior express consent. Consent "is an affirmative defense for which the defendant bears the burden of proof." Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037, 1044 (9th Cir. 2017).

A 1992 order from the Federal Communications Commission provides that "persons who knowingly release their phone numbers have in effect given their invitation or permission to be called at the number which they have given, absent instructions to the contrary." In the Matter of Rules & Regulations Implementing the Tel. Consumer Prot. Act of 1991, 7 F.C.C. Rcd. 8752, 8769 (1992). The Ninth Circuit recently interpreted this language "in a way that harmonizes with the TCPA's text and purpose, as well as the FCC's other orders and rulings. In our view, an effective consent is one that relates to the same subject matter as is covered by the challenged calls or text messages." Van Patten, 847 F.3d at 1044-45. The court did "not read the 1992 Order to mean that the FCC has determined that providing a phone number in itself means that the consumer has expressly consented to contact for any purpose whatsoever. Instead, the consent must be considered to relate to the type of transaction that evoked it." Id. at 1045. Thus, "the scope of a consumer's consent depends on the transactional context in which it is given. The call or text message must be based on the circumstance in which the consumer gave his or her number." Id. at 1040. "[T]he FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason." Id. at 1046.

In Van Patten, the Ninth Circuit considered whether the plaintiff had given prior express consent to receive the following text message on two occasions: "Golds [sic] Gym is now Xperience Fitness. Come back for $9.99/mo, no commitment. Enter for a chance to win a Nissan Xterra! Visit Myxperiencefitness.com/giveaway." Id. at 1041. In 2009, Van Patten gave his phone number and other contact information to a Gold's Gym franchise in Green Bay, Wisconsin, "to determine whether he was pre-qualified to become a member." Id. at 1040. He canceled his membership three days later. Id. Over three years after that, the Gold's Gym franchise that Van Patten visited became an Xperience Fitness gym, and Van Patten received the above text messages as part of a campaign to "invite members to return." Id. at 1040-41. The court concluded that Van Patten had given his express consent to receive the text messages:

Id. at 1046.

Defendants argue that "the text messages involved in this case fall squarely within [the] scope of consent test articulated by the Court of Appeals in Van Patten — both from a temporal and a subject matter standpoint."2 ECF No. 69 at 19. But the question of time is inapposite. Consent under the TCPA does not expire with time; instead, "[r]evocation of consent must be clearly made and express a desire not to be called or texted." Van Patten, 847 F.3d at 1048. The Ninth Circuit concluded that Van Patten had not revoked his consent to receive further text messages. Id. Likewise, there is no question in this case that Walintukan had not yet revoked his consent when he received the text messages at issue here. Whether the messages were sent three months or three years after consent was given is not relevant.

The dispositive question is whether the subject matter of the text messages fell within the "transactional context" in which Walintukan gave consent by voluntarily providing his phone number. Id. at 1046. This Court concludes that it did not.3 Contrary to Defendants' characterization, the Van Patten court did not read the text messages there as coming from a different gym or concerning a new membership; instead, the court construed the messages as an "invitation to `come back' and reactivate his gym membership." Id. As another district court has observed, "it was the Ninth Circuit's view that the gym was contacting Van Patten about the exact same gym membership for which he initially provided his contact information." Trenz v. On-Line Adm'rs, Inc., Case No. CV 15-08356-AB (KSx), 2017 U.S. Dist. LEXIS 199984, at *10 (C.D. Cal. Sept. 25, 2017). Likewise, Defendants' attempts to distinguish the text messages in Van Patten on grounds that they "included an extraneous car giveaway offer" are unpersuasive. ECF No. 74 at 13. The invitation to "[e]nter for a chance to win" a vehicle was not a separate message; it was included as part of the gym's invitation to reactivate Van Patten's gym membership. Id. at 1041.

Here, Defendants' text messages concerned different events by different artists at the Create Nightclub. The only connection to the transaction in which Walintukan provided his phone number was that the events were occurring at the same venue. Defendants' statement that "there is simply no difference between a gym asking a customer to come back to the gym and a club asking a customer to come back to the club" is incorrect. ECF No. 74 at 13. "[U]nlike the gym membership in Van Patten, which contemplates an ongoing relationship by the very nature of a monthly membership system," purchasing an event ticket "is much more discrete in nature." Trenz, 2017 U.S. Dist. LEXIS 199984, at *10-11 (discussing servicing of a vehicle at a car dealership).4 Just as the Trenz court found "that the transactional context in which [the plaintiffs] gave their contact information to the [defendant] dealerships was limited to those particular service appointments and did not include future servicing of their vehicles," this Court concludes that the transactional context in which Walintukan provided his contact information was limited to the particular event for which he was purchasing a ticket. Id. at *11. It does not include any and all future events at the same venue. Defendants have failed to meet their burden of demonstrating that Walintukan provided prior express consent to receive the two text messages at issue in this case.

CONCLUSION

Defendants' motion for summary judgment is denied.

The Court sets a further case management conference on June 20, 2018 at 2:00 p.m. An updated joint case management statement is due June 13, 2018.

IT IS SO ORDERED.