G Eric Kuskey vs Salvatore A Garofalo et al

(6) Plaintiff Fails to Allege that Defendant Knowingly Procured a Telephone Record in Violation of TUCSRA

Absent from the complaint is any allegation that AT&T did not have authorization to record his communications containing his telephone records. Absent from the complaint is any allegation that defendant knew AT&T did not have authorization to record plaintiff's communications with AT&T.

That AT&T contracted with defendant to analyze customer service calls on behalf of AT&T does not, in and of itself, constitute a conspiracy to obtain telephone records under TUCSRA. That AT&T used a third party service provider to perform these AI services on its behalf rather than performing the services itself does not, without more, constitute fraud or deception. TUCSRA expressly permits use of a telephone record by AT&T "either directly or indirectly through its agents ... [a]s may be necessarily incident to the rendition of the service." (A.R.S. Sec. 44-1376.02(B)(3).)

Even assuming arguendo that plaintiff's conversations with AT&T are telephone records as alleged in the complaint, the allegations fall short of establishing that defendant "knowingly procured" or conspired with another to procure a telephone record "without the authorization" of plaintiff or "by fraudulent, deceptive or false means." (A.R.S. Sec. 44-1376.01(A)(1), (3).) The complaint also does not establish that defendant received such record "knowing that the record has been obtained without the authorization of the customer to whom the record pertains or by fraudulent, deceptive or false means." (Ibid.)

TUCSRA's legislative history confirms this reading. In the context of this statute, the term "without authorization" is targeted to prevent the practice of gaining access to telephone record information "by posing as the customer, then offering the records for sale on the Internet without the customer's consent or knowledge." (RJN, Ex. 5, p.1; see RJN, Ex. 1, p.1; RJN, Ex. 2, p.1; Williams, supra, 2025 WL 1135160, at *2-3 [explaining pretexting].) This is not the type of conduct alleged in the complaint. The complaint fails to allege facts establishing this element of the TUCSRA. The court will sustain the demurer with leave to amend on this additional basis.

(7) Request for Judicial Notice

Defendant requests that the court take judicial notice of the following documents; (1) A true and correct copy of the Arizona Bill Summary on House Bill 2785, dated April 24, 2006, attached hereto as Exhibit 1. (2) A true and correct copy of the Arizona Fact Sheet on House Bill 2785, dated March 27, 2006, attached hereto as Exhibit 2. (3) A true and correct copy of the Arizona Fact Sheet on House Bill 2785, dated March 12, 2007, attached hereto as Exhibit 3. (4) A true and correct copy of the Arizona House of Representatives Committee on Commerce Minutes, dated February 15, 2006, attached hereto as Exhibit 4. (5) A true and correct copy of the Arizona Bill Summary on House Bill 2785, dated February 16, 2006, attached hereto as Exhibit 5. (6) A true and correct copy of the Arizona Bill Status on House Bill 2785, dated May 8, 2006, attached hereto as Exhibit 6. (7) A true and correct copy of the First Amended Class Action Complaint filed by Plaintiff's counsel in Busby v.

Invoca, Case No. 3:24-cv-05542-JD (N.D. Cal. 2024), Dkt. 21, attached hereto as Exhibit 7.

The court will grant judicial notice of exhibits 1 through 6 since these documents were pertinent to the court's analysis. (See Evid. Code, Sec. 452, subd. (d).) The request is otherwise denied.

Tentative Ruling: G Eric Kuskey vs Salvatore A Garofalo et al Tentative Ruling: G Eric Kuskey vs Salvatore A Garofalo et al Case Number