Hughes v. FrontRange Solutions

Filed 10/16/07 Hughes v. FrontRange Solutions CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Linda B. Quinn, Judge. Affirmed.

Steve Hughes appeals from the trial court's decision granting summary judgment in favor of FrontRange Solutions USA, Inc. and FrontRange Solutions, Inc. (collectively FrontRange) in Hughes's lawsuit alleging that FrontRange sent him unsolicited facsimiles in violation of the federal Telephone Consumer Protection Act, 47 U.S.C.  227 et seq. (the TCPA) and Business and Professions Code section 17200 et seq.

We conclude that FrontRange carried its burden to establish that Hughes cannot prove that it was a sender of unsolicited facsimiles, and accordingly we affirm the trial court.

I

FACTUAL AND PROCEDURAL BACKGROUND

Hughes filed a complaint against FrontRange and RD Tucker Co., Inc. (RD Tucker), alleging that he "received unsolicited facsimiles from Defendants in 2004," and that "[o]n numerous occasions beginning at an exact date unknown as yet and continuing up through the present, Defendants used a telephone facsimile machine, computer, or other device to send unsolicited advertisements to telephone facsimile machines, including, but not limited to a telephone facsimile machine designated to [Hughes]."

The complaint's first cause of action alleged that each of the defendants had violated the TCPA. In 2002 through 2004, when the faxes at issue appear to have been sent, the TCPA made it unlawful for a person "to use any telephone facsimile machine, computer, or other device to send an unsolicited advertisement to a telephone facsimile machine." (47 U.S.C.  227, subd. (b)(1)(C).)^[1] Hughes sued under the provision of the TCPA providing that a private party may file a private right of action "to recover for actual monetary loss from . . . violation [of section 227 of the TCPA], or to receive $500 in damages for each such violation, whichever is greater," and that the court may award treble damages if "the court finds that the defendant willfully or knowingly" committed the violation. (47 U.S.C.  227, subd. (b)(3); see also Kaufman v. ACS Systems, Inc. (2003) 110 Cal.App.4th 886, 890 [explaining private right of action in state court under the TCPA].)

The complaint's second cause of action alleged that each defendant violated Business and Professions Code section 17200 et seq. by engaging in the unlawful activity of sending unauthorized facsimiles in violation of the TCPA.

FrontRange and RD Tucker conducted discovery during which Hughes produced 21 faxed pages that he claimed to have received from FrontRange and RD Tucker. The copies of the faxes appearing in the record do not indicate the date and time of their transmission or the phone number of the sender or recipient.^[2] However, from the content of the documents, it can be inferred that the faxes were sent between late 2002 and late 2004, as they advertise training programs and seminars occurring between those dates.

The 21 faxed pages are all advertisements for computer software training programs or seminars conducted by TeamAutomation. According to the record, RD Tucker operates under the name TeamAutomation. All of the faxed pages advertise training on GoldMine software, which, is one of FrontRange's products. All but one of the faxed pages indicate that the training programs are being conducted by TeamAutomation only. The remaining faxed page states that it is an invitation from both TeamAutomation and FrontRange Solutions to a workshop that they are jointly conducting, but both the top and bottom of the page bears only TeamAutomation's letterhead and contact information.

FrontRange filed a motion for summary judgment, arguing that Hughes had produced no evidence that FrontRange sent unsolicited faxes to him.^[3] FrontRange supported its summary judgment motion with (1) Hughes's responses to various discovery requests, and (2) an agreement defining the business relationship between FrontRange and RD Tucker.

Hughes responded by relying primarily on documents produced by FrontRange showing its contacts with Hughes, excerpts from deposition testimony from the president of RD Tucker and statements contained in Hughes's declaration. FrontRange filed evidentiary objections to some of Hughes's evidence, but the trial court did not specifically rule on the objections.

The trial court granted FrontRange's motion for summary judgment, concluding that "[t]here is no evidence that . . . Front[R]ange sent the alleged facsimiles that give rise to plaintiff's complaint." The trial court also rejected Hughes's argument that RD Tucker sent the faxes on behalf of FrontRange, concluding that "[t]here is no evidence that defendant RD Tucker . . . is an agent of . . . Front[R]ange."

II

DISCUSSION

A. Standards Governing Our Review of a Ruling on a Motion for Summary Judgment

We begin our analysis with an overview of the rules governing motions for summary judgment.

Code of Civil Procedure section 437c, subdivision (c) provides that summary judgment is to be granted when there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. A defendant "moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850) (Aguilar).) A defendant may meet this burden either by showing that one or more elements of a cause of action cannot be established or by showing that there is a complete defense. (Ibid.) "[A]ll that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action[;] the defendant need not himself conclusively negate any such element." (Id. at p. 853.) "A defendant moving for summary judgment may establish that an essential element of the plaintiff's cause of action is absent by reliance on the pleadings, competent declarations, binding judicial admissions contained in the allegations of the plaintiff's complaint, responses or failures to respond to discovery, and the testimony of witnesses at noticed depositions." (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1375.)

If the defendant's prima facie case is met, the burden shifts to the plaintiff to show the existence of a triable issue of material fact with respect to that cause of action or defense. (Aguilar, supra, 25 Cal.4th at p. 849; Silva v. Lucky Stores, Inc. (1998) 65 Cal.App.4th 256, 261.) " 'When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.' " (Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647.)

Ultimately, the moving party "bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law." (Aguilar, supra, 25 Cal.4th at p. 850.)

We review a summary judgment ruling de novo to determine whether there is a triable issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. (Certain Underwriters at Lloyd's of London v. Superior Court (2001) 24 Cal.4th 945, 972.) "In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment." (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal.App.4th 1073, 1079.)^[4]

B. Evidentiary Objections

As a preliminary matter, we note that in its appellate briefing FrontRange reasserts some of the evidentiary objections that it made in the trial court and asks us not to consider certain evidence relied on by Hughes. However, because the trial court did not expressly rule on FrontRange's objections, the evidence to which FrontRange objected is considered part of the record on appeal and FrontRange's evidentiary objections are deemed to have been waived and not preserved for appeal. (See Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1186-1187, fn. 1 (Sharon P.); Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1 (Ann M.); Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 566 (Demps).)^[5]

C. There Is No Triable Issue of Fact As To Whether FrontRange Sent Unsolicited Facsimiles to Hughes

FrontRange based its summary judgment motion solely on the premise that Hughes could not establish that FrontRange was the sender of any of the faxes at issue in this case.

Because FrontRange's summary judgment motion focused on whether it was a sender of any of the 21 faxed pages, we first examine the requirements for liability as a sender under the TCPA. As Hughes points out, a person need not have physically pressed the "send" button on the fax machine to be considered a sender. It has long been the case under the TCPA that the person on whose behalf a facsimile was sent may be found liable as a sender. (Federal Communications Com. Release No. 95‑310, 10 F.C.C.R. 12391 (adopted July 26, 1995)  34, 35 (Release No. 95‑310) ["the entity or entities on whose behalf facsimiles are transmitted are ultimately liable for compliance with the rule banning unsolicited facsimile advertisements"]; Hooters of Augusta, Inc. v. Nicholson (Ga.App. 2000) 537 S.E.2d 468, 472 [citing Release No. 95‑310]; Worsham v. Nationwide Ins. Co. (Md.App. 2001) 772 A.2d 868, 878 ["The TCPA reaches not only the entity making the telephone solicitation, but also any entity 'on whose behalf' such calls are made"].)^[6] Put another way, if an entity asks another person or entity to physically accomplish the transmission of an unsolicited fax that it would otherwise have sent itself, the entity on whose behalf the fax was sent may still be liable under the TCPA.

Applying this principle here, we will evaluate FrontRange's summary judgment motion to determine whether it has carried its ultimate burden of persuasion to establish that Hughes cannot establish that FrontRange either (1) physically sent the faxes to Hughes, or (2) had the faxes sent to Hughes on its behalf. With this inquiry in mind, we turn to the merits of FrontRange's motion.

1. FrontRange Made a Prima Facie Showing in Support of Its Motion by Relying on Hughes's Deficient Discovery Responses

To make a prima facie showing in support of its motion, FrontRange relied on Hughes's discovery responses. We thus review those discovery responses and examine whether, by relying on them, FrontRange made a prima facie case that Hughes could not establish that FrontRange was a sender of the facsimiles at issue in this case.

Specifically, FrontRange focused on the following responses that Hughes made to requests for production, interrogatories and requests for admission. First, when asked to identify and produce all documents supporting his claim that FrontRange sent him unsolicited faxes, Hughes cited only the 21 faxed pages that he had already produced. Second, when asked in a request for admission to admit that each of the 21 faxed pages he had produced were not sent to him by FrontRange, Hughes responded with a denial and an objection "to the use of the undefined term 'sent' within the context of this request." Third, when asked to cite facts upon which he based his response, Hughes cited only the 21 faxed pages. Fourth, when asked to state all facts supporting his claim that FrontRange sent unsolicited facsimiles to him, Hughes stated only that RD Tucker's president had told him that "RD Tucker receives marketing leads from defendant FrontRange entities and follows up on the leads by preparing and sending marketing facsimiles."^[7]

These discovery responses show that although Hughes was permitted the opportunity to conduct discovery and to marshal the evidence that supported his case, he intended to support his claim against FrontRange by pointing to only two facts: (1) he received the 21 faxed pages, and (2) he was allegedly told by RD Tucker that it gets marketing leads from FrontRange, and in turn sends facsimiles to those marketing leads. As we will explain, these facts are insufficient to establish Hughes's claim that the faxes were sent by, or on behalf of, FrontRange.

First, the 21 faxed pages do not indicate that they were sent by FrontRange. The faxes are clearly advertisements of training programs and seminars conducted by TeamAutomation. Although the faxes at issue mention FrontRange's product (i.e., GoldMine software) along with other software products, the mention of FrontRange's software does not create an inference that the faxes were sent on behalf of FrontRange. As is evident from the text of the faxes, TeamAutomation is in the business of holding workshops and seminars concerning certain software produced by third parties, including FrontRange.^[8] It is evident from the faxes themselves that FrontRange's software was mentioned because it was the subject of TeamAutomation's seminars and workshops, not because FrontRange was the sender of the faxes.^[9] Although one of the 21 faxed pages advertises a workshop to be conducted jointly by FrontRange and TeamAutomation, that faxed page (1) sets forth TeamAutomation's logo and business description at the top of the page as a header, (2) sets forth Team Automation's contact information at the bottom of the page as a footer, and (3) indicates that the page is " TeamAutomation, 2001." Thus, this page like the rest of the 21 pages, appears to have been sent by TeamAutomation, not FrontRange, and there is no evidence that FrontRange asked TeamAutomation to send the fax on its behalf.

Second, even though Hughes claims to have been told by RD Tucker that it obtains marketing leads from FrontRange and sends faxes to those leads, that fact, even if established at trial, would not show that the faxes were sent on behalf of FrontRange. At most, the statement identifies FrontRange as the source of the marketing leads that are then acted upon by RD Tucker. Significantly, in this case the seminars and workshops advertised in the faxes are conducted as part of TeamAutomation's business, not FrontRange's business. Thus, even if Hughes could show that FrontRange was the source of obtaining Hughes's fax number, that fact alone would not create an inference that the faxes were sent on behalf of FrontRange.

In sum, we conclude that the evidence that Hughes cited in his discovery responses does not create an inference that any of the 21 faxed pages were sent by or on behalf of FrontRange. Hughes's discovery responses are, accordingly, prima facie evidence that Hughes "does not possess, and cannot reasonably obtain, needed evidence" to support his claim that FrontRange sent him unauthorized facsimiles in violation of the TCPA. (Aguilar, supra, 25 Cal.4th at p. 854.)

2. Hughes Did Not Submit Evidence Sufficient to Rebut the Prima Facie Case Established by FrontRange

We next examine whether Hughes submitted sufficient opposing evidence to rebut FrontRange's prima facie showing that Hughes is unable to establish that FrontRange was the sender of any of the 21 faxed pages that Hughes identified.

In support of his case, Hughes submitted evidence, which we will discuss more fully below, showing (1) that Hughes had extensive business dealings directly with FrontRange from 1999 to 2001, and again briefly in 2005, and those dealings are documented in logs produced from FrontRange's files; (2) that FrontRange admitted in response to discovery requests that it had referred potential customers to TeamAutomation, which was confirmed in a deposition of a principal of RD Tucker; and (3) that during a deposition, a principal of RD Tucker stated that he believed Hughes was referred as a lead to RD Tucker in approximately 2000. As we will explain, none of this evidence creates a reasonable inference that RD Tucker sent any of the 21 faxed pages to Hughes on behalf of FrontRange.

First, Hughes relies on several pages of computer printouts produced by FrontRange, which track the contacts that FrontRange itself had with Hughes between 1999 and 2001, and in 2005. Those contacts were mainly by e‑mail or telephone, and appear to have been a dialogue between FrontRange and Hughes, consisting in part of customer service inquiries by Hughes as well as marketing materials sent from FrontRange to Hughes.^[10] At least two of the communications from FrontRange to Hughes (in 1999 and 2000) were by fax.^[11]In 2005, Hughes and FrontRange had a conversation about Hughes possibly "becoming an IPCC partner," but then "[Hughes's] client went with another product." There is no record in these documents that FrontRange provided Hughes's contact information to RD Tucker for use as a marketing lead, and nothing in these records creates an inference that the 21 faxed pages at issue in this case were sent by or on behalf of FrontRange.^[12]

Second, Hughes relies on evidence that FrontRange admittedly provides customer leads to TeamAutomation, as confirmed in discovery by RD Tucker. Specifically, in its response to discovery FrontRange stated that it possessed "computer printouts of referrals of potential customers as 'leads' from GoldMine Products to Randy Tucker at 'TeamAutomation.' " During Randy Tucker's deposition, he stated that FrontRange does provide customer leads to RD Tucker, and that, according to Tucker, "[i]n reference to a marketing activity we would have been doing" (at a time not specified) FrontRange was "aware of [RD Tucker's] activities in sending facsimiles to leads." This evidence also does not create a reasonable inference that any of the 21 faxed pages were sent to Hughes by RD Tucker on behalf of FrontRange. The evidence does not specifically address whether Hughes's contact information was one of the leads provided to RD Tucker.

Third, Hughes relies on Tucker's deposition testimony that he believed, based on conversations with someone at FrontRange, that FrontRange had supplied RD Tucker with Hughes's contact information as a marketing lead. Tucker's deposition testimony is difficult to follow, but he appears to believe that, based on conversations with FrontRange, Hughes's contact information was entered into FrontRange's system as a marketing lead in approximately 2000, and RD Tucker would have had access to Hughes's contact information. This deposition testimony does not create an inference that RD Tucker sent any of the 21 faxed pages to Hughes on behalf of FrontRange. At most, if believed by a jury, the evidence would establish that at some point, long before the 21 faxed pages were sent, FrontRange supplied RD Tucker with Hughes's contact information. That conduct would not be sufficient to create liability for FrontRange under the TCPA. Moreover, as we have explained, even if there was direct evidence that FrontRange gave Hughes's contact information to RD Tucker around the time that the 21 faxed pages were sent, that fact would not establish that the faxes sent to Hughes were sent on behalf of FrontRange, because the 21 faxed pages are advertisements for TeamAutomation's business activities, i.e., its training programs and seminars.

Hughes also argues that based on the evidence he has produced, he has established that RD Tucker was acting as an agent of FrontRange in sending the 21 faxed pages, and thus, as required by the TCPA, the faxes were sent on behalf of FrontRange. As we will explain, we reject this argument.

"An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency." (Civ. Code,  2295.) " 'Agency is either actual or ostensible. (Civ. Code,  2298.) An actual agency exists when one person is employed to represent another (Civ. Code,  2299), while an ostensible agency exists when the principal causes a third person to believe another, not employed by him, is his agent. (Civ. Code,  2300.) Indicia of an agency relationship are the agent's power to alter legal relations between the principal and others, a fiduciary relationship, and the principal's right to control the agent's conduct.' " (Valley Investments, L.P. v. BancAmerica Commercial Corp. (2001) 88 Cal.App.4th 816, 826.) Here, the record contains no evidence of either actual or ostensible agency between FrontRange and RD Tucker. Instead, the evidence relied on by Hughes shows nothing more than that RD Tucker conducts training programs and seminars concerning FrontRange software, and FrontRange supplies marketing leads to RD Tucker.^[13]

In sum, we conclude that Hughes did not submit sufficient evidence to rebut FrontRange's prima facie showing that Hughes would be unable at trial to establish that FrontRange was the sender of any of the 21 faxed pages. At most, Hughes produced evidence that (1) Hughes's contact information was made available to RD Tucker from FrontRange at some point, and (2) FrontRange was aware, at some unspecified time, that RD Tucker was sending facsimiles to leads as part of a marketing campaign. This evidence is simply not enough to create a reasonable inference that any of the 21 faxed pages were sent by RD Tucker on behalf of FrontRange.

Thus, based on all of the evidence in the record, FrontRange carried its burden of persuasion that Hughes is unable to establish a necessary element of his claim that FrontRange violated the TCPA.^[14]

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

McDONALD, Acting P. J.

McINTYRE, J.

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^[1] In 2005, the TCPA was amended to provide certain exceptions to the general rule that it is unlawful to send an unsolicited facsimile. The statute currently makes its unlawful "to use any telephone facsimile machine, computer, or other device to send, to a telephone facsimile machine, an unsolicited advertisement, unless  (i) the unsolicited advertisement is from a sender with an established business relationship with the recipient; (ii) the sender obtained the number of the telephone facsimile machine through  (I) the voluntary communication of such number, within the context of such established business relationship, from the recipient of the unsolicited advertisement, or (II) a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution, except that this clause shall not apply in the case of an unsolicited advertisement that is sent based on an established business relationship with the recipient that was in existence before July 9, 2005, if the sender possessed the facsimile machine number of the recipient before such date of enactment; and (iii) the unsolicited advertisement contains a notice meeting the requirements under paragraph (2)(D), except that the exception under clauses (i) and (ii) shall not apply with respect to an unsolicited advertisement sent to a telephone facsimile machine by a sender to whom a request has been made not to send future unsolicited advertisements to such telephone facsimile machine that complies with the requirements under paragraph (2)(E) . . . ." (47 U.S.C  227, subd. (b)(1)(C).)

^[2] Further, in response to a special interrogatory from RD Tucker, Hughes was unable to give the dates on which the faxes were received.

^[3] This appeal concerns only the claims against FrontRange, not the claims against RD Tucker, as only Frontrange filed the motion that is the subject of this appeal.

^[4] Hughes has submitted a request for judicial notice regarding (1) certain legislative history of the TCPA, and (2) an order of the Federal Communications Commission. These items are both proper subjects of judicial notice under Evidence Code section 452, and we accordingly grant Hughes's request for judicial notice.

^[5] The trial court's approach of not expressly ruling on FrontRange's evidentiary objections was apparently based on the procedure sanctioned by the First District, Division 2 in Biljac Associates v. First Interstate Bank (1990) 218 Cal.App.3d 1410, 1419, which held that a trial judge need not rule on each evidentiary objection, but could preserve the record by stating, ". . . I am going to disregard all those portions of the evidence that I consider to be incompetent and inadmissible." (Id. at p. 1419, fn. 3.) However, this court has previously criticized such an approach, explaining the difficulties it raises for appellate review, and urging the trial courts to rule on evidentiary objections made in connection with summary judgment motions. (Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 236.) Moreover, the First District, Division 2 recently rejected its own holding in Biljac: "Today, seemingly wiser, we reject that holding, and hold instead, as dictated by two California Supreme Court cases [Ann M., supra, 6 Cal.4th 666 and Sharon P., supra, 21 Cal.4th 1181] and consistent with all published, post-Biljac Court of Appeal opinions, that a trial judge's failure to rule on properly presented objections results in their being impliedly overruled, the effect of which is that the objected-to evidence is in the record for purposes of appellate review." (Demps, supra, 149 Cal.App.4th at p. 566.) Courts have recognized an exception to the waiver rule "when counsel specifically requests a ruling on evidentiary objections and the trial court nonetheless declines to rule." (See, e.g., Swat-Fame, Inc. v. Goldstein (2002) 101 Cal.App.4th 613, 624, fn. 7, citing City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784; see also Demps, at p. 579 [discussing exception to waiver rule, but declining to decide whether to adopt it].) Here, despite the fact that the trial court first expressed its refusal to rule on the evidentiary objections in its tentative ruling, FrontRange did not thereafter attempt to obtain a ruling when it appeared to argue the merits of the trial court's tentative ruling.

^[6] Discussion of this issue often arises in the situation where a company has hired a service known as a "fax broadcaster" to send faxes on its behalf. (See Release No. 95‑310, supra,  34.) We note that in 2005, after the conduct at issue in this case, the applicable federal regulations were amended to include, for the first time, a definition of a "sender" as used in one section of the regulations implementing the TCPA. Consistent with the preexisting law, the regulations define a sender as "the person or entity on whose behalf a facsimile unsolicited advertisement is sent or whose goods or services are advertised or promoted in the unsolicited advertisement." (47 C.F.R.  64.1200(f)(8).) As this definition of "sender" is substantially the same as the approach that existed before 2005, we need not decide whether the regulation adopted in 2005 applies in this case.

^[7] Hughes later made substantially the same assertion in a declaration prepared in opposition to FrontRange's motion for summary judgment: "On or about September 23, 2005, I spoke with Randy Tucker, the President of RD Tucker, and was informed by Mr. Tucker that RD Tucker receives sales and marketing 'leads' from Front[R]ange and RD Tucker simply follows up on the sales leads by preparing and sending marketing facsimiles." FrontRange objected to this statement on hearsay grounds, but the trial court did not specifically rule on the objection.

^[8] As described by FrontRange in a discovery response contained in the record and uncontradicted by any evidence presented by Hughes, "RD Tucker . . . purchases computer software programs and products from FrontRange Solutions USA, Inc., as well as from other unrelated manufacturers and producers, which [RD] Tucker resells at retail to third parties. [RD] Tucker sells maintenance and support contracts for certain of those products. However, in addition [RD] Tucker puts on seminars for third parties to train them in the use of FrontRange software products, as well as products or services of other unrelated entities. [RD] Tucker also provides installation and consulting services for a fee to customers who have purchased FrontRange programs, as well as other unrelated products or services. FrontRange does not derive any income from those [RD] Tucker sales, training seminars or the provision by [RD] Tucker of these consulting and additional services, which are the business activities of [RD] Tucker."

^[9] To clarify the nature of the business relationship between FrontRange and RD Tucker, FrontRange also supported its summary judgment motion with the Partner Program Agreement, dated February 15, 2005, between FrontRange and RD Tucker (the Agreement). Under the Agreement, RD Tucker was authorized purchase FrontRange's products from FrontRange and then resell those products to the end user at a price set by RD Tucker. The Agreement stated, "Each party is an independent contractor and as such has no authority to bind or commit the other party. Nothing in this Agreement will be construed to create a joint venture, partnership, franchise, agency, fiduciary, employment or any similar arrangement between the parties." The Agreement also stated, "[RD Tucker] shall comply with all applicable national, federal, regional, and local rules, regulations, statutes and laws . . . . Without limiting the foregoing, [RD Tucker] shall comply with all applicable data protection, SPAM, privacy and similar rules, regulations, directives and other laws, and shall comply with FrontRange's privacy policy and other practices established by FrontRange from time to time." FrontRange relies to some extent in its appellate briefing on the provisions of the Agreement, and Hughes in turn takes issue with the significance of the Agreement to the issues presented here. We do not rely on the Agreement in reaching our conclusion in this case, and we note that the Agreement was entered into in 2005, after the events at issue in this case. The record does not contain an operative agreement between RD Tucker and FrontRange from an earlier time period.

^[10] Consistent with these records, Hughes admitted in responses to discovery that at an unspecified time he did purchase a product from FrontRange on behalf of himself or his employer.

^[11] We note that as of 2002 through 2004, when the faxes at issue were sent, FrontRange's records of its contacts with Hughes reflect a different fax number for Hughes than the fax number at which he claims to have received the 21 faxes. Thus, even if FrontRange had provided Hughes's contact information to a third party in 2002 through 2004, that third party could not have made the 21 fax transmissions to Hughes based on information supplied from FrontRange's files.

^[12] In its responses to Hughes's request for production of documents, FrontRange referred to its records of dealings with Hughes in 1999 through 2001 and 2005 as "printouts of communications which reference a 'Steve Hughes.' " Throughout his appellate briefing, Hughes interprets this phrase as a statement that FrontRange had produced documents showing communications with RD Tucker about Hughes. However, based on our review of the documents, we conclude that there is no basis for that reading of FrontRange's description of the documents. The documents that FrontRange was describing are clearly records of communications between Hughes and FrontRange and have no reference to RD Tucker or TeamAutomation.

^[13] We do not rely on the provisions of the Agreement between FrontRange and RD Tucker in assessing Hughes's agency argument because it was entered into during an inapplicable time period.

^[14] Because Hughes's cause of action under Business and Professions Code section 17200 et seq. is also premised on FrontRange's alleged violation of the TCPA, that cause of action fails for the same reason as the cause of action asserted directly under the TCPA. In his reply brief, Hughes argues that even if FrontRange escapes liability under the TCPA because it cannot be found to have been a sender of the faxes at issue, FrontRange should still be liable under the Business and Professions Code section because it committed the "deceptive and deceitful act[]" of "hiding behind a third party." Without even considering its legal merit, we reject the factual premise of this argument, as Hughes has identified no evidence creating an inference that FrontRange was involved in or knew about the sending of the facsimiles at issue, and thus there is no basis for a finding that FrontRange was "hiding behind" RD Tucker. We also reject Hughes's argument because the theory of liability he advances is not pled in the complaint, which relies on the theory that FrontRange violated the TCPA.