SUPERIOR COURT
OF CALIFORNIA
COUNTY OF SAN
MATEO
UNLIMITED
JURISDICTION
LAW OFFICES OF JOHN L. FALLAT JOHN L. FALLAT (State Bar No. 114842) P.O. Box 354 Kentfield
CA 94904-0354 Telephone: (415)
457-3773 Facsimile: (415)
457-2667 e-mail: jfallat@fallat.com Attorneys for Plaintiff and Class
|
HYPERTOUCH,
INC., a California corporation, individually, and on behalf of all others
similarly situated, Plaintiffs, vs. PERRY
JOHNSON, INC., a Michigan corporation, PERRY JOHNSON REGISTRARS, INC., a
Michigan corporation, and DOES 1 through 100, Defendants. |
)))) ) ) ) ) ) ) ))) ) ) ) ) |
Case
No. 418600 CLASS ACTION FIRST AMENDED COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF BASED ON: 1.
VIOLATION OF FEDERAL LAW; 2.
CIVIL CONSPIRACY JURY TRIAL DEMANDED |
Plaintiffs, by their attorneys of record,
bring this challenge to Defendants’ unlawful business practices in connection
with the violation of the Telephone Consumer Protection Act of 1991
(“TCPA”) (codified at 47 U.S.C.
§227.) They sue on behalf of themselves
and a class of all others similarly situated.
Plaintiffs seek injunctive relief and damages, against the above-named
Defendants and allege as follows:
THE PARTIES
1. Plaintiff
Hypertouch, Inc., is a California corporation with its principal place of
business in Redwood City, California.
2. Plaintiff
is informed and believes that defendant Perry Johnson, Inc. (hereinafter
“defendant PJI”) is, and at all times material hereto was, a Michigan
corporation, with a place of business at 222 N. Sepulveda Blvd., #1328, El
Segundo, California 90245.
3. Plaintiff
is informed and believes that defendant Perry Johnson Registrars, Inc.
(hereinafter “defendant PJRI”) is the alter ego of PJI and at all times
material hereto was, a Michigan corporation, with a place of business at 222 N.
Sepulveda Blvd., #1328, El Segundo, California 90245.
4. DOES
1 through 100 are other individuals or entities whose identities are presently
unknown to plaintiffs. Said defendants,
at all times mentioned herein, assisted defendants PJI and PJRI in and about
the wrongs complained of herein by providing financial support, advice,
resources or other assistance.
Plaintiff will seek to amend this complaint to allege the true names and
capacities of these DOE Defendants when they are ascertained.
5. This
action is brought by Plaintiff pursuant to California Code of Civil Procedure
§382 on behalf of a class and as an individual party plaintiff. The class is composed of all persons or
business entities, corporate or otherwise, who received unsolicited facsimile
advertisements in violation of 47 U.S.C. §227(b)(1)(C) and violation of 47
C.F.R. §64.1200(a)(3) for the past four years pursuant to 28 U.S.C. §1658.
6. On
behalf of the class and the general public, Plaintiff requests that this court
decide that the conduct of the Defendants constitutes the sending of
unsolicited facsimile advertisements in violation of the above-referenced
statute and federal regulations set forth in Paragraph 4, and that the
defendants pay damages to each of the class members as set forth in 47 U.S.C.
§227(b)(3) in the amount of $500.00 for each such violation, three times the
amount available or $1,500.00 based upon the Defendants willfully or knowingly
violating said section and the related regulations and for an injunction to
prevent further violations of said section.
7. Plaintiff’s
claims are typical of the claims of the Class, because Plaintiff and all Class
members sustained damages which arise out of the Defendants’ wrongful conduct
in violation of Federal law as alleged herein.
8. Plaintiff
is a representative party who willfully and adequately protects the interests
of the Class members, and have retained Class counsel who are experienced and
competent in Class and contract litigation.
Plaintiff has no interests which are contrary to or in conflict with
those of the Class that he seeks to represent.
The number and identity of the members of the Class are determinable from
the records of the Defendants. Class
members may be notified of the pendency of this Class action by mail.
9. Plaintiff
knows of no difficulty to be encountered in management of this action which
would preclude its maintenance as a Class action. Relief concerning Plaintiff’s rights under the laws alleged
herein, and with respect to the Class as a whole, would be appropriate.
10. The
likelihood of individual Class members prosecuting separate claims is remote
and individual members of the Class do not have a significant interest in
individually controlling the prosecution of separate actions. Additionally, the prosecution of separate
actions by individual Class members would create a risk of inconsistent and varying
adjudications concerning the subject of this action, which adjudications could
establish incompatible standards of conduct for defendants under the laws
alleged herein. A class action is
superior to any other method for the fair and efficient adjudication of this
controversy.
11. The
class is so numerous that joinder of all members would be impracticable. There is a well-defined community of
interest in both questions of law and fact between Plaintiff and the Class
members. Questions of law and fact
common to the members of the aforesaid Class predominate over any questions
which may affect only individual members, in that Defendants have acted on
grounds generally applicable to the entire Class. Among the questions of law and fact common to the Class are:
(a) Whether
Federal law has been violated by Defendants as alleged herein;
(b) Whether
defendants participated in and pursued the course of conduct complained of;
(c) Whether
the members of the Class have sustained damages, and if so, the proper measure of damages.
12. The
jurisdiction and venue is proper in this court based upon 47 U.S.C. §227(b)(3)
granting jurisdiction under federal law to the State Court for violations of
this section, and because the Plaintiff received these facsimiles within the
County of San Mateo, the venue is proper in this county.
(Violation
of Federal Law)
(47
U.S.C. §227)
13. Plaintiff
realleges and incorporates herein by this reference all of the allegations
contained in paragraphs 1 through 12, inclusive, of this complaint as though
fully set forth herein.
14.
The TCPA took effect on December 20, 1992.
15.
47 U.S.C. §227(b)(1)(C) states as follows:
It shall be unlawful for any person within the United States . . . to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine.
16.
47 U.S.C. §227(a)(4) defines “unsolicited
advertisement” as “any material advertising the commercial availability or
quality of any property, goods or services which is transmitted to any person
without the person’s prior express invitation or permission.”
17.
From September 11, 1999 until May 16, 2001, on
16 different instances, the Defendants willfully and knowingly violated the
Telephone Consumer Protection Act by sending and/or causing to be sent a 47
U.S.C. §227(a)(4) “unsolicited advertisement” (junk fax) to the Plaintiff (see Exhibit 1 attached to this Complaint a
record of faxes, and Exhibit 2 - sample of the faxes).
18.
The Plaintiff seeks to recover damages (actual,
statutory, multiple, and/or punitive) relating to the “unsolicited
advertisement” in the amount of $500.00 for each violation, and/or $1,500.00
for each instance of Defendant’s violation of the Telephone Consumer Protection
Act. As evidence of said willful and
knowing violation, attached as Exhibit 3 is a copy of a Citation dated
September 11, 2000 by the FCC against PJRI, and the response to same by PJI on
behalf of PJRI attached as Exhibit 4.
Civil
Conspiracy
19. Plaintiff realleges and incorporates herein by reference all of the allegations contained in Paragraphs 1 through 18, inclusive, of this complaint as though fully set forth herein.
20.
Plaintiff is informed and believes and thereon
alleges that Defendants, and each of them, entered into an agreement under
which said defendants, acting in concert, agreed to willfully or knowingly
violate the TCPA.
21. The acts of Defendants, and each of them, were in furtherance of a conspiracy to violate a legal duty for their own personal financial gain.
22. Defendants had an independent duty to Plaintiff and all others similarly situated not to engage in said conduct and their conduct involves a conspiracy to violate a legal duty in furtherance of Defendants’ financial gain.
23. Defendants at all times did the acts and things herein alleged pursuant to, and in furtherance of, the conspiracy and agreement alleged above.
24. As
a proximate result of the wrongful acts of Defendants, and each of them,
Plaintiff has been damaged in a sum according to proof and for attorney’s fees,
costs, and interest according to proof.
WHEREFORE, Plaintiff prays for
judgment against Defendants as follows:
1. Awarding damages on behalf of the
Plaintiff as the result of violations of the TCPA in the amount of $500.00 for
each violation;
2. Awarding damages on behalf of the
Plaintiff as a result of a willful and knowing violation of the Telephone
Consumer Protection Act of 1991, in the amount of $1,500.00 for each violation;
3.
Awarding the plaintiff all costs of court and
attorney fees;
4.
Granting injunctive relief, prohibiting the
Defendants from violating the TCPA; and
5.
Granting such further legal and equitable relief
as the Court deems appropriate and just.
JOHN
L. FALLAT
Attorney
for Plaintiff