“Rule 12(b)(6) authorizes a 10 court to dismiss a claim on the basis of a dispositive issue of law.”
How later courts described this case
- “Rule 12(b)(6) authorizes a 10 court to dismiss a claim on the basis of a dispositive issue of law.”
Written by the judges who cited it.
The opinion
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8 UNITED STATES DISTRICT COURT
9 SOUTHERN DISTRICT OF CALIFORNIA
10
11 THERESA SMITH, an individual, Case No.: 3:20-cv-01295-JAH-RBB
12 Plaintiff,
(1) DENYING DEFENDANT’S
13 v. REQUEST FOR JUDICIAL NOTICE
(ECF No. 20-2);
14 CREDIT CORP SOLUTIONS, INC.,
15 Defendant. (2) GRANTING PLAINTIFF’S
REQUEST FOR JUDICIAL NOTICE
16
(ECF No. 26);
17
(3) GRANTING IN PART
18
DEFENDANT’S MOTION TO
19 DISMISS (ECF No. 20-1), and;
20
(4) DENYING PLAINTIFF’S
21 MOTION FOR SANCTIONS (ECF
No. 15).
22
23 Pending before the Court is Defendant Credit Corp Solutions Inc.’s (“Defendant” or
24 “Credit Corp”) Motion to Dismiss Plaintiff’s First Amended Complaint (“FAC”). (ECF
25 No. 20, “MTD”). Plaintiff Theresa Smith (“Plaintiff”) filed a response in opposition to the
26 motion, (ECF No. 25, “Opp’n.”), and Defendant filed a reply in support of the motion,
27
28
1 (ECF No. 29, “Reply”). Also before the Court is Plaintiff’s Motion for Sanctions. (ECF
2 No. 15, “Sanctions Mot.”). The motion is fully briefed. (ECF Nos. 21, 23). The motions
3 are decided on the briefs without oral argument pursuant to Civil Local Rule 7.1.d.1. For
4 the reasons set forth, Defendant’s motion to dismiss is granted in part and denied in part,
5 and Plaintiff’s motion for sanctions is denied.
6 I.
7 BACKGROUND
8 Plaintiff Theresa Smith brought this action against Defendant Credit Corp, alleging
9 violations of the Fair Debt Collection Practices Act (“FDCPA”), pursuant to 15 U.S.C. §
10 1692, et. seq., the Rosenthal Fair Debt Collection Practices Act, pursuant to California
11 Civil Code § 1788 et. seq., and the California common law tort of intrusion upon seclusion.
12 (See ECF No. 10-1, “FAC”). According to the Complaint, Plaintiff incurred a financial
13 obligation to Synchrony Bank for a revolving line of credit in the form of a CareCredit
14 consumer credit card. FAC at ¶ 15.2 Plaintiff used the card for personal, family, or
15 household purposes. FAC at ¶ 16. Plaintiff defaulted on her debt. FAC at ¶ 17. Thereafter,
16 the debt was assigned or transferred to Credit Corp Solutions, Inc., a Delaware corporation
17 and a debt buyer who collects debts owed. FAC at ¶¶ 10, 18.
18 In a letter dated August 1, 2018, Plaintiff was informed that the debt with Synchrony
19 Bank had been assigned to Defendant. FAC at ¶¶ 19-20. On August 14, 2018, Plaintiff
20 sent a debt verification letter and simultaneously informed Defendant she “refuse[d] to
21 pay” her debt. FAC at ¶¶ 22-23. Defendant acknowledged receipt of Plaintiff’s letter
22
23
1 The motion is captioned as a Motion to Seal a Previously filed Document 6-2 and 14 and
24
for Sanctions for Violations of Fed. R. Civ. P. 5.2. The Court granted Plaintiff’s motion in
25 part, and ordered for ECF No. 6-2 to be sealed, and ECF No. 14 to be stricken from the
record. (ECF No. 18). The Court set out a briefing schedule on the remaining motion for
26
sanctions. Id. Accordingly, only the remaining issue of whether sanctions are appropriate
27 against Defendant will be addressed.
28
1 shortly thereafter. FAC at ¶ 24. Plaintiff alleges that despite her previous communication,
2 Defendant mailed Plaintiff a collection letter dated July 10, 2019. FAC at ¶ 27. Defendant
3 also attempted to communicate with Plaintiff numerous times by telephone. FAC at ¶ 43.
4 In an attempt to collect the debt, Defendant called Plaintiff’s home telephone on September
5 5, 2018; September 13, 2018; September 25, 2018; October 11, 2018; and October 12,
6 2018. FAC at ¶ 44. Defendant and its employee John Perdemo called Plaintiff on October
7 16, 2018, during which time Plaintiff requested Defendant to cease contact. FAC at ¶¶ 45-
8 48. Defendant called Plaintiff again on October 17, 2018, in an attempt to collect the
9 outstanding debt. FAC at ¶ 49. Plaintiff alleges she received at least twenty-four telephone
10 calls from Defendant between September 5, 2018, and June 10, 2019, after her written
11 communication to Defendant that she refused to pay her outstanding debt. FAC at ¶ 49.
12 Plaintiff brings three causes of action: (1) violation of the FDPCA; (2) violation of
13 the Rosenthal Act; and (3) intrusion upon seclusion.
14 II.
15 DISCUSSION
16 A. Requests for Judicial Notice
17 “Generally, district courts may not consider material outside the pleadings when
18 assessing the sufficiency of a complaint under Rule 12(b)(6) of the Federal Rules of Civil
19 Procedure.” Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). There are two
20 exceptions to this rule: the incorporation-by-reference doctrine, and judicial notice under
21 Federal Rules of Evidence 201. Id. Under Rule 201, a court may take notice of an
22 adjudicative fact if it is “not subject to reasonable dispute.” Fed. R. Evid. 201(b). A fact
23 is “not subject to reasonable dispute” if it is “generally known,” or “can be accurately and
24 readily determined from sources whose accuracy cannot reasonably be questioned.” Id. A
25 document may be incorporated by reference “if the plaintiff refers extensively to the
26 document or the document forms the basis of the plaintiff’s claim[,]” however, “the mere
27 mention of the existence of a document is insufficient to incorporate the contents of a
28
1 document.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).
2 A document may still form the basis of a complaint if “the claim necessarily depended on
3 th[e document.]” Id. (citing Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005)).
4 “However, if the document merely creates a defense to the well-pled allegations in the
5 complaint, then that document did not necessarily form the basis of the complaint.” Id.
6 Further, “it is improper to assume the truth of an incorporated document if such
7 assumptions only serve to dispute facts stated in a well-pleaded complaint.” Khoja, 899
8 F.3d at 1003.
9 1. Defendant’s Request for Judicial Notice
10 Concurrent with the motion to dismiss, Defendant requests the Court take judicial
11 notice of numerous documents. Exhibit 1 is a Bill of Sale and Affidavit of Sale of Account;
12 Exhibits 2-6 are various items of correspondence between Plaintiff and Defendant. (ECF
13 No. 20-2, “Defs. RJN”). Defendant contends all documents are appropriate subjects for
14 consideration under the doctrine of incorporation by reference. Plaintiff opposes this
15 request, arguing that Defendant’s reliance on contested non-public documents is improper
16 because the documents are disputed material facts. (Opp’n at 19-20).
17 At this stage of the pleading, the Court finds that the exhibits are not proper subjects
18 for judicial notice. As to Exhibit 1, the Bill of Sale and Affidavit of Sale of Account,
19 Plaintiff’s claim does not depend on the contents of the document. See Knievel v. ESPN,
20 393 F.3d 1068, 1076 (9th Cir. 2005) (“We have extended the ‘incorporation by reference’
21 doctrine to situations in which the plaintiff's claim depends on the contents of a document,
22 the defendant attaches the document to its motion to dismiss, and the parties do not dispute
23 the authenticity of the document, even though the plaintiff does not explicitly allege the
24 contents of that document in the complaint.”). As to Exhibits 3-6, the various items of
25 correspondence between Plaintiff and Defendant are also not appropriate for judicial
26
27
3 Unless otherwise noted, internal quotation marks, ellipses, brackets, citations, and
28
1 notice, as Plaintiff’s claim does not depend on the contents of the documents. See id.
2 Finally, Exhibit 2 is allegedly a letter addressed to Defendant written by Plaintiff.
3 Although the letter may be appropriate for judicial notice under the doctrine of
4 incorporation by reference, Plaintiff disputes the authenticity of this document and all
5 others for which Defendant is seeking judicial notice. (Opp’n. at 18-22). Accordingly, the
6 Court finds the Court’s review of such documents would be more appropriate in connection
7 with a motion for summary judgment. Charles Alan Wright & Arthur R. Miller, 5C Federal
8 Practice and Procedure § 1366 (3d ed. 2021) (“As the language of [Rule 12(b)(6)] suggests,
9 federal courts have complete discretion to determine whether or not to accept the
10 submission of any material beyond the pleadings that is offered in conjunction with a Rule
11 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
12 consider it.”).
13 2. Plaintiff’s Request for Judicial Notice
14 Plaintiff requests the Court take judicial notice of a (1) Nationwide Multistate
15 Licensing System database search, which identifies Credit Corp as a licensed collection
16 agency in Arizona, Connecticut, Idaho, Maryland, Massachusetts, New Mexico, North
17 Dakota, Oregon, Rhode Island, and Wyoming; (2) Minnesota Commerce Department
18 database search that identifies Credit Corp as a licensed collection agency; (3) Washington
19 State Department of Revenue database search that identifies Credit Corp as an out-of-state
20 collection agency; and (4) Alaska Department of Commerce, Community, and Economic
21 Development database search that identifies Credit Corp as a licensed collection agency.
22 (ECF No. 26, “Pls. RJN”).4 Defendant did not file an opposition to Plaintiff’s request. The
23 Court takes judicial notice of the above exhibits pursuant to Federal Rule of Evidence 201.
24
25
4 Some states require a debt collector to obtain a license before they can collect a debt in a
26
state, while others do not. On January 1, 2022, the Debt Collection Licensing Act took
27 effect, requiring debt collectors and buyers to apply for a license with the state of
California. See Dep’t of Fin. Protection & Innovation, Laws Impacting Debt Collectors,
28
1 See Chenault v. Cobb, Case No. 13-CV-03828-MEJ, 2014 WL 4607484 at *2 (N.D. Cal.
2 Sept. 15, 2014) (taking judicial notice of NMLS online records because it is a “matter[ ] of
3 public record, provided by a government agency for public review”).
4 B. Defendant’s Motion to Dismiss
5 Defendant seeks dismissal pursuant to Federal Rules of Civil Procedure 12(b)(6).
6 Rule 12(b)(6) tests the sufficiency of the complaint. Navarro v. Block, 250 F.3d 729, 732
7 (9th Cir. 2001). Dismissal is warranted under Rule 12(b)(6) where the complaint lacks a
8 cognizable legal theory. Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th
9 Cir. 1984); see Neitzke v. Williams, 490 U.S. 319, 326 (1989) (“Rule 12(b)(6) authorizes a
10 court to dismiss a claim on the basis of a dispositive issue of law.”). Alternatively, a
11 complaint may be dismissed where it presents a cognizable legal theory yet fails to plead
12 essential facts under that theory. Robertson, 749 F.2d at 534. While a plaintiff need not
13 give “detailed factual allegations,” he must plead sufficient facts that, if true, “raise a right
14 to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545
15 (2007).
16 “To survive a motion to dismiss, a complaint must contain sufficient factual matter,
17 accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal,
18 556 U.S. 662, 678 (2009). A claim is facially plausible when the factual allegations permit
19 “the court to draw the reasonable inference that the defendant is liable for the misconduct
20 alleged.” Id. In other words, “the non-conclusory ‘factual content,’ and reasonable
21 inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff
22 to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). “Determining
23 whether a complaint states a plausible claim for relief will... be a context-specific task that
24 requires the reviewing court to draw on its judicial experience and common sense.” Iqbal,
25 556 U.S. at 679.
26 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the
27 truth of all factual allegations and must construe all inferences from them in the light most
28 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002);
1 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal
2 conclusions need not be taken as true merely because they are cast in the form of factual
3 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); W. Min. Council v.
4 Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, the Court
5 may consider the facts alleged in the complaint, documents attached to the complaint,
6 documents relied upon but not attached to the complaint when authenticity is not contested,
7 and matters of which the Court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d
8 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim,
9 the court should grant leave to amend unless it determines that the pleading could not
10 possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494,
11 497 (9th Cir. 1995).
12 1. First Claim: Violation of the FDCPA
13 The FDCPA was created to protect consumers from “abusive, deceptive, and unfair”
14 debt collection practices. See 15 U.S.C. § 1692(a). There are three requirements for an
15 FDCPA claim: (1) the plaintiff must be a “consumer”; (2) the defendant must be a “debt
16 collector”; and (3) the defendant must have committed some act or omission in violation
17 of the FDCPA. See Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d
18 1051, 1057 (C.D. Cal. 2009). Defendant challenges the sufficiency of Plaintiff’s
19 allegations as to the second and third requirements.
20 a. Whether Credit Corp is a “Debt Collector” For Purposes of the FDCPA
21 As a threshold matter, Defendant asserts that Plaintiff only provides threadbare
22 recitals of Credit Corp’s status as a debt collector. (MTD at 11-12). The FDCPA defines
23 “debt collector,” in pertinent part, as:
24 [A]ny person who uses any instrumentality of interstate commerce or
the mails in any business the principal purpose of which is the
25
collection of any debts, or who regularly collects or attempts to
26 collect, directly or indirectly, debts owed or due or asserted to be owed
or due another.
27
28
1 15 U.S.C. § 1692a(6).
2 Credit Corp asserts that Plaintiff’s allegations are “bare statements” and Plaintiff
3 “does not allege that [Defendant’s] principal business is the collection of debts owed to
4 others or that it regularly collects or attempts to collect debts owed to others.” (MTD at
5 12). Defendant’s assertion that Plaintiff only provides conclusory statements regarding
6 Defendant’s status as a debt collector is unpersuasive, particularly in light of Defendant’s
7 status as a licensed collection agency in numerous states. See infra, II.A.2. The FAC
8 alleges that Credit Corp is “a collection agency which regularly collects consumer debts,”
9 “engages in debt collection,” and “are debt collectors” as defined by 15 U.S.C. § 1692a(6).
10 FAC at 2-3. As such, Plaintiff clearly alleges that Defendant is a “debt collector” as
11 required. Additionally, in deciding a Rule 12(b)(6) motion to dismiss, a court must accept
12 Plaintiff’s factual allegations as true and construe them in favor of the nonmoving party.
13 Thompson, 295 F.3d at 895.
14 Next, Defendant alleges that the claim against Credit Corp fails as a matter of law
15 because Credit Corp does not qualify as a debt collector. (MTD at 13). Defendant relies
16 on the holding in Henson v. Santander Consumer USA Inc, 137 S. Ct. 1718, 1722 (2017),
17 to support its argument. In Henson, the Supreme Court held that debt buyers who
18 “regularly purchase debts originated by someone else and then seek to collect those debts
19 for their own account” are not debt collectors because they do not regularly seek to collect
20 debts “owed ... another.” 137 S. Ct. at 1721-22, quoting 15 U.S.C. § 1692a(6). This
21 definition “seems to focus our attention on third party collection agents working for a debt
22 owner— not on a debt owner seeking to collect debts for itself.” Id. at 1721. However, as
23 Plaintiff points out, the holding in Henson addresses the “regularly collects” definition of
24
25
26
5 The Court refers to the first definition as the “principal purpose” prong (those engaged in
“any business the principal purpose of which is the collection of any debts”), and refers to
27 the second definition as the “regularly collects” prong (those “who regularly collect[ ] ...
28 debts owed or due another”). 15 U.S.C. § 1692a.
1 15 U.S.C. § 1692a(6), but expressly declined to consider the “principal purpose” definition.
2 In McAdory v. M.N.S. & Associates, LLC,6 the Ninth Circuit found that the “principal
3 prong” provides a distinct means of qualifying as a debt collector unconnected to the
4 “regularly collects” prong. Specifically, the Ninth Circuit stated that the “principal
5 purpose” prong “describes the type of business Congress sought to regulate—i.e., one with
6 a principal purpose of debt collection.” McAdory v. M.N.S. & Associates, LLC, 952 F.3d
7 1089, 1094 (9th Cir. 2021). “[T]he ‘relevant question’ in assessing a business's principal
8 purpose is ‘whether debt collection is incidental to the business's objectives or whether it
9 is the business's dominant, or principal, objective.’ ” Id. at 1093.
10 While Defendant does not address whether it is a “debt collector” under the
11 “principal purpose” prong, and only objects under the “regularly collects” prong,
12 Plaintiff’s FAC is devoid of any allegations that indicate Defendant primarily engages in
13 debt collection, or debt collection is the “principal purpose” of the business. Merely
14 alleging that Defendant “regularly” collects consumer debt is insufficient. As such,
15 Plaintiff does not allege Defendant’s “principal purpose” is debt collection within the
16 meaning of the FDCPA and fails to state a claim under the statute.7
17 b. Waiver under the FDCPA
18 Pursuant to 15 U.S.C. section 1692g(b),
19 If the consumer notifies the debt collector in writing within the thirty-
day period described in subsection (a) that the debt, or any portion
20
thereof, is disputed, or that the consumer requests the name and
21 address of the original creditor, the debt collector shall cease
communication of the debt, or any disputed portion thereof, until the
22
debt collector obtains verification of the debt or a copy of such
23
24
6 Defendants in McAdory are M.N.S. Associates, LLC (“MNS”), and D.N.F. Associates,
25 LLC, (“DNF”). DNF is a debt purchaser that outsourced collection activity to third-party
contractor, MNS. McAdory, 952 F.3d, 1091. The Court notes that those facts are
26
distinguishable from the instant matter.
27
7 Plaintiff’s response in opposition relies on numerous cases to illustrate Defendant’s status
28
1 judgment, or the name and address of the original creditor, is mailed
to the consumer by the debt collector. Collection activities and
2
communications that do not otherwise violate this subchapter may
3 continue during the 30-day period referred to in subsection (a) unless
the consumer has notified the debt collector in writing that the debt,
4
or any portion of the debt, is disputed or that the consumer requests
5 the name and address of the original creditor. Any collection activities
and communication during the 30-day period may not overshadow or
6
be inconsistent with the disclosure of the consumer’s right to dispute
7 the debt or request the name and address of the original creditor.
8
15 U.S.C. § 1692g(b).
9
Defendant argues that despite notification via the Request for Validation that
10
Plaintiff refused to pay the debt, “she waived her right to request [Defendant] cease
11
communications by including both language disputing the debt and refusing to pay.”
12
(MTD at 15). Relying on Clark v. Capital Credit & Collection Servs., Inc., Defendant
13
asserts that Plaintiff’s request that Defendant “verify the Debt and provide the debt balance
14
. . . date of default . . . [and] names of all persons or entities that have purchased the debt”
15
amounted to a waiver. Id.
16
In Clark, the Ninth Circuit applied the principles of waiver to a claim brought
17
pursuant to 15 U.S.C. § 1692c(c). Clark v. Capital Credit & Collection Serv., Inc., 460
18
F.3d 1162, 1170 (9th Cir. 2006). Section 1692c(c) provides that:
19
If a consumer notifies a debt collector in writing ... that the consumer
20 wishes the debt collector to cease further communication with the
consumer, the debt collector shall not communicate further with the
21
consumer with respect to such debt [.]
22
15 U.S.C. § 1692c(c).
23
The Ninth Circuit held that “a debtor may waive the rights created by a cease
24
communication directive.” Clark, 460 F.3d at 1170. The Ninth Circuit further found that
25
“where waivers are permissible, they are often enforced only if the waiver was ‘knowing’
26
or ‘intelligent,’ which means the individual has ‘sufficient awareness of the relevant
27
circumstances and likely consequences’ of his decision.” Id. at 1170-71. However, the
28
1 Id. at 1171. That is, a waiver would only be enforced “where the least sophisticated debtor
2 would understand that he or she was waiving his or her rights[.]” Id.
3 In the instant matter, Defendant avers Plaintiff waived the cease communication
4 directive by disputing her debt, but patently fails to provide any facts to suggest Plaintiff
5 did so in a manner that was knowing or voluntary. Accordingly, for purposes of this Rule
6 12(b)(6) motion, Defendant’s argument that Plaintiff’s communication constituted a
7 waiver is unavailing.
8 c. The July 2019 Statement
9 Defendant posits that even if Plaintiff had not waived her cease communication
10 directive, the July 10, 2019, statement is not a collection letter that violates 15 U.S.C.
11 1692c(c), but rather, is a billing statement. (MTD at 16). Plaintiff’s response spans 32-
12 pages re-alleging the same allegations found in the FAC, objecting to the Court taking
13 judicial notice to Defendant’s exhibits and opining on Defendant’s status as a debt
14 collector, but does not rebut Defendant’s claim as to whether the July letter is a billing
15 statement. Nonetheless, Defendant’s argument is unavailing. First, of the cases cited by
16 Defendant in support of its position, none “foreclose[d] the possibility that a monthly
17 statement can also be a debt collection letter.” Evans v. Select Portfolio Servicing, Inc.,
18 2020 WL 5848619, at *8 (E.D.N.Y. September 30, 2020). While not explicitly stated, to
19 support its proposition, Defendant cites to numerous cases which state that monthly
20 statements sent in conformance with the Truth In Lending Act (“TILA”) do not violate the
21 FDCPA. (Mot. at 17). This argument is misplaced. The TILA only applies to “creditors”
22 which refers to: “a person who both (1) regularly extends … consumer credit … and (2) is
23 the person to whom the debt arising from the consumer credit transaction is initially
24 payable … .” 15 U.S.C. § 1602(g). Defendant does not fit within that definition and is not
25 subject to TILA because Defendant is not the person to whom the debt was originally
26 payable. See Neff v. Capital Acquisitions & Mgmt. Co., 352 F.3d 1118 (7th Cir. 2003)
27 (“[T]o meet th[e] definition [of a creditor under the TILA], however, [the defendants] must
28 have either ‘issued a credit card’ or been the issuer's ‘agent.’ ”). Lastly, the FDCPA
1 prohibits all communications “[i]f a consumer notifies a debt collector in writing that the
2 consumer refuses to pay a debt or that the consumer wishes the debt collector to cease
3 further communication with the consumer[.]” 15 U.S.C. § 1692c. The FDCPA does not
4 provide an exception for billing statements. Accordingly, Defendant’s argument that July
5 10, 2019, statement is a billing statement, and thus not a violation of the FDCPA is
6 unavailing.
7 d. The Telephone Calls
8 Defendant also argues that Plaintiff “insufficiently pleads whether the Telephone
9 Calls violate the FDCPA or the Rosenthal Act.” (MTD at 19). Specifically, Defendant
10 contends the telephone calls Plaintiff argues are a basis for a violation of the FDCPA are
11 only pled under the “Violations of Plaintiff’s Right to Privacy By Intrusion Upon
12 Seclusion.” Id. Furthermore, to the extent that the FAC sufficiently alleges that the
13 telephone calls violate the FDCPA or the Rosenthal Act, Defendant avers that the telephone
14 calls are not actionable because Plaintiff fails to allege that she answered any of the
15 telephone calls or that Defendant left a message. Id. Defendant also alleges that Plaintiff
16 does not allege how the phone calls were “false, misleading, or harassing. Id. at 20.
17 Even if Plaintiff specifically plead the telephone calls under her Intrusion Upon
18 Seclusion claim, this alone is not a basis to find Plaintiff’s complaint deficient. Plaintiff
19 alleges that “[a]lthough some of the[ telephone] communications fall outside of the
20 FDCPA’s one-year statute of limitations, literally dozens of communications from
21 Defendant . . . occurred within the longer two-year statute of limitations under California
22 law.” FAC at ¶ 42. It is therefore reasonable to infer that Plaintiff is also alleging the
23 telephone communications are a violation of the FDCPA, even though Plaintiff presents
24 the argument only under the California claim. See Ashcroft v. Iqbal, 566 U.S. 662, 678
25 (2009). Furthermore, the cases cited by Defendant do not establish as a matter of law that
26 the volume of phone calls cannot constitute violations of the FDCPA. Despite the
27 shortcomings in Defendant’s arguments, the Court finds Plaintiff’s complaint is deficient.
28 The FDCPA defines “communication” as “the conveying of information regarding a debt
1 directly or indirectly to any person through a medium.” 15 U.S.C. § 1692a(2). Aside from
2 the October 16, 2018, phone call with “John Perdomo”, it is unclear from the FAC if
3 Plaintiff answered Defendant’s telephone calls, whether Defendant left a voicemail, and
4 how she identified Defendant as the caller.8 Accordingly, Plaintiff has insufficiently
5 pleaded a violation of the FDCPA as to the telephone calls.
6 2. Second Claim: Violation of the Rosenthal Act
7 Defendant contends that Plaintiff fails to claim a violation of the Rosenthal Act for
8 the same reasons her FDCPA claims fail. “The Rosenthal Act mimics or incorporates by
9 reference the FDCPA's requirements . . . and makes available the FDCPA's remedies for
10 violations. Thus, . . . whether [conduct] violates the Rosenthal Act turns on whether it
11 violates the FDCPA.” Riggs v. Prober & Raphael, 681 F.3d 1097, 1100 (9th Cir. 2012)
12 (citing Cal. Civ. Code § 1788.17). As such, for the reasons discussed above, the Court
13 adopts its findings contained infra, Section II.B.1.b-d.9
14
15
8 Although discussed by Defendant, Plaintiff’s FAC does allege or cite to 15 U.S.C. §
16
1692d, as such, the Court will not discuss whether Plaintiff sufficiently claims the
17 communications were intended to annoy, abuse, or harass Plaintiff. 15 U.S.C. § 1692d(5)
(“A debt collector may not engage in any conduct the natural consequence of which is to
18
harass, oppress, or abuse any person in connection with the collection of a debt. … [T]he
19 following conduct is a violation of this section . . .. Causing a telephone to ring . . .
repeatedly or continuously with intent to annoy, abuse, or harass any person at the called
20
number.”)
21
9 Defendant attempts to rely on Marcotte v. General Elec. Capital Services, Inc., 709
22
F.Supp.2d 994 (S.D. Cal. 2010), to argue that balance statements do not violate § 1788.17
23 of the Rosenthal Act. In Marcotte, the plaintiff owed a consumer debt to the defendant.
Marcotte, 709 F.Supp.2d at 996. The plaintiff retained a law firm to resolve his debts and
24
file for bankruptcy. Id. The firm sent a letter to the defendant, notifying defendant that
25 the plaintiff is represented and directing all future communications be sent to the firm. Id.
The defendant thereafter sent the plaintiff two billing statements, which the plaintiff
26
asserted was a violation of the Rosenthal Act. The court in Marcotte found, inter alia, that
27 the communications at issue were actually billing statements and did not violate § 1788.17.
Id. at 1002. However, the Marcotte court does not foreclose the possibility that a billing
28
1 3. Third Claim: Intrusion Upon Seclusion
2 Finally, Defendant argues that Plaintiff’s complaint fails as a matter of law because
3 she only makes vague claims that the “calls interrupted her daily activities . . . Plaintiff,
4 however, does not allege that any of these calls were made during odd hours or were made
5 by unknown numbers by callers that failed to identify themselves.” (MTD at 22). As
6 previously mentioned, Plaintiff does not rebut Defendant’s argument as to the viability of
7 her intrusion upon seclusion claim.
8 “Under California law, the essential elements of an intrusion upon seclusion claim
9 are as follows: ‘(1) [t]he defendant intentionally intruded, physically or otherwise, upon
10 the solitude or seclusion, private affairs or concerns of the plaintiff; (2) [t]he intrusion was
11 substantial, and of a kind that would be highly offensive to an ordinarily reasonable person;
12 and (3) [t]he intrusion caused plaintiff to sustain injury, damage, loss or harm.’ ” Romero
13 v. Dep’t Stores Nat’l Bank, No.: 15-CV-193-CAB-MDD, 2016 WL 11621402, at *3 (S.D.
14 Cal. February 4, 2016) (citing Rowland v. JPMorgan Chase Bank, N.A., No. C 14-00036
15 LB, 2014 WL 992005 (N.D. Cal. Mar. 12, 2014)).
16 Plaintiff’s FAC alleges that she received at least twenty-four debt collection calls
17 from Defendant between September 5, 2018, and June 10, 2019, after her cease
18 communication directive. FAC at ¶ 51. Plaintiff alleges that nineteen of the twenty-four
19 phone calls occurred after the cease communication directive and “her telephone
20 conversation with Defendant instructing Defendant to stop calling.” Id. at ¶ 51. Plaintiff’s
21 complaint states that each of these phone calls “interrupted Plaintiff’s daily activities[,]
22 including preparing and eating meals, reading, watching television, browsing the internet,
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25 juncture, Plaintiff has alleged sufficient facts to suggest that the July 2019 statement
contains debt collection language. Cf Marcotte, 709 F.Supp.2d at 1002 (“The billing
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statements at issue here contain all of th[e] information [as required by Cal. Civ. Code §
27 1810.3] and nothing else that would change the billing statements into demand letters or
efforts at debt collection. The statements do not state that any amounts are past due, and
28
1 cleaning, resting, and having conversations . . . distracting her from her activities, and
2 depriv[ing] her of the use of her home telephone.” Id. at 9-10, ¶¶ 55-56. However, these
3 allegations alone, even when construed in the light most favorable to Plaintiff, do not
4 sufficiently allege a claim for intrusion upon seclusion.
5 Contrary to Defendant’s assertion, this Court and other district courts within the
6 Ninth Circuit have held that “repeated and continuous calls in an attempt to collect a debt
7 give rise to a claim for intrusion upon seclusion” under California law. See e.g., Dolesnki
8 v. GE Money Bank, F.S.B., No. 3:11–cv–1594–JAH (BGS), 2012 WL 12054940 (S.D. Cal.
9 March 28, 2012). However, the number of calls and the duration of those calls are highly
10 relevant to the Court’s analysis. In Dolesnki, for example, this Court found that a plaintiff
11 who received 144 calls in a span of twenty-two days, and 256 calls over a span of twenty-
12 eight days sufficiently alleged a claim of intrusion upon seclusion. Id. at *5. Nonetheless,
13 Plaintiff does little more than allege that the volume of calls was disruptive. Furthermore,
14 Plaintiff does not provide sufficient facts “to allege the content of any of the calls placed
15 to [p]laintiff . . . and what was highly offensive about such calls.” Castellanos v. JPMorgan
16 Chase & Co., No. 09–CV–00969–H (JMA), 2009 WL 1833981 (S.D. Cal. June 23, 2009);
17 see also Marseglia v. JPMorgan Chase & Co., No. 09cv2857 JAH(RBB) (same).
18 Therefore, this Court finds Plaintiff failed to plead facts sufficient to state a claim for
19 intrusion upon seclusion. Accordingly, Defendant's motion to dismiss as to this claim is
20 granted.
21 ///
22 ///
23 ///
24 ///
25 ///
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1 C. Plaintiff’s Request for Sanctions
2 Plaintiff also moves for sanctions under the Court’s inherent authority. (See
3 Sanctions Mot.). Plaintiff contends that Defendant’s violations of Federal Rules of Civil
4 Procedure 5.2 on two separate occasions “sufficiently disrupted this litigation to warrant
5 the imposition of sanctions.” (Id. at 13-14). “Because inherent powers are shielded from
6 direct democratic controls, they must be exercised with restraint and discretion.” Roadway
7 Express, Inc. v. Piper, 447 U.S. 752, 764(1980). On the record before the Court, there is
8 no basis to conclude that Defendant’s conduct meets the high bar to warrant sanctions. See
9 Primus Automotive Financial Services, Inc. v. Batarse, 115 F.3d 644, 649 (9th Cir. 1997)
10 (“The bad faith requirement sets a high threshold[.]”). Exercising its discretion, the Court
11 denies Plaintiff’s motion for sanctions.
12 D. Leave to Amend
13 “[A]lthough Rule 12(c) does not mention leave to amend, courts have discretion both
14 to grant a Rule 12(c) motion with leave to amend and to simply grant dismissal of the action
15 instead of entry of judgment.” Lonberg v. City of Riverside, 300 F. Supp. 2d 942, 945
16 (C.D. Cal. 2004).
17 Plaintiff requested leave to amend if the Motion was granted. (Opp’n. 31-32). On
18 the present record, there is no basis to conclude that “the pleading could not possibly be
19 cured by the allegation of other facts.” Henry A. v. Willden, 678 F.3d 991, 1005 (9th Cir.
20 2012). For this reason, Plaintiff is granted leave to amend.
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23 10 Plaintiff’s motion stresses the importance of abiding by the Federal Rules of Civil
24 Procedure. While the Court agrees, it also notes that Plaintiff’s Response in Opposition to
Defendant’s Motion to Dismiss does not fully comport with the Local Rules. Civ.L.R.
25 5.1(a) (“Printed text, produced on a word processor or other computer, may be
26 proportionally spaced allowing 28 lines on one side of the document, provided the type is
no smaller than 14-point standard font (e.g. Times New Roman).”) The Court reminds
27 both the Parties to familiarize themselves with the Federal Rules of Civil Procedure and
28 the Civil Local Rules and adhere to these rules in future filings.
1 II.
2 CONCLUSION
3 Accordingly, IT IS HEREBY ORDERED:
4 1. Defendant’s Request for Judicial Notice is denied;
5 2. Plaintiff's Request for Judicial Notice is granted;
6 3. Defendant’s Motion to Dismiss is granted in part and denied in part, with
7 leave for Plaintiff to amend. Plaintiff shall file a Second Amended Complaint
8 within twenty-one (21) days from the date of this Order. A failure to do so
9 will result in the dismissal of this action with prejudice; and
10 4. Plaintiff's Motion for Sanctions is denied.
1] IT IS SO ORDERED.
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13 || DATED: March 30, 2022 M&S
M4 A. HOUSTON
15 ITED STATES DISTRICT JUDGE
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