Opinion

LVNV Funding v. Rodriguez

Court
California Court of Appeal
Filed
Nov 12, 2024
Status
Published
Cited by
0 cases
Authority
More cited than 32.9%

The opinion

Filed 10/23/24; certified for publication 11/12/24 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LVNV FUNDING, LLC,

F086904

Plaintiff and Respondent,

(Super. Ct. No. 23CECG01294)

v.

YOLANDA RODRIGUEZ, OPINION

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Fresno County. Jonathan M.

Skiles, Judge.

Consumer Law Center, Fred W. Schwinn, Raeon R. Roulston, and Matthew C.

Salmonsen, for Defendant and Appellant.

Yu Mohandesi, B. Ben Mohandesi and Lisa M. Lawrence, for Plaintiff and

Respondent.

-ooOoo-

INTRODUCTION

This case arises from the granting of a special motion to strike pursuant to Code of

Civil Procedure sections 425.16 et seq., commonly known as an anti-SLAPP motion.

Respondent LVNV Funding, LLC (LVNV) sued appellant Yolanda Rodriguez

(Rodriguez) in a debt collection action. Rodriguez cross-complained, (1) claiming she

had been the victim of identity theft, and (2) that LVNV’s debt collection action violated

the federal Fair Debt Collection Practices Act (FDCPA) and its California counterpart,

the Rosenthal Fair Debt Collection Practices Act (Rosenthal Act).1 After initial

discovery, Rodriguez determined LVNV had sued the wrong Yolanda Rodriguez,

because the debt LVNV was attempting to collect was incurred by a Yolanda Rodriguez

with a different date of birth and Social Security number than hers. Once this was

demonstrated to LVNV, it dismissed the suit. However, Rodriguez declined to dismiss

her cross-claim, since the FDCPA and Rosenthal Acts are strict liability statutes, which

penalize false or misleading debt collection actions unless they fit within a narrow “bona

fide error” defense. LVNV filed an anti-SLAPP motion, which the trial court granted.

Rodriguez now appeals from the trial court’s order granting the motion.

For the reasons set forth below, we reverse the trial court’s decision to grant the

motion. The FDCPA creates a strict liability cause of action for attempts to collect a debt

that misrepresent or falsely present the “character” or “amount” of a debt owed.

Numerous federal courts from around the country have interpreted this language as

allowing a cause of action for cases of mistaken identity, where a debt collector sues or

otherwise attempts to collect a debt from the wrong person. The FDCPA was enacted in

order to curb improper and abusive debt collection practices, and it does so by placing the

onus on debt collectors to ensure they attempt to collect only legitimate debts from the

1 Courts have noted that the Rosenthal Act largely mirrors the FDCPA. (See

Lal v. American Home Servicing, Inc. (E.D.Cal. 2010) 680 F.Supp.2d 1218, 1224; Best v.

Ocwen Loan Servicing, LLC (2021) 64 Cal.App.5th 568, 576 [“The Rosenthal Act …

incorporates the FDCPA, so that a violation of the FDCPA is per se a violation of the

Rosenthal Act.”].) While the Rosenthal Act “is more extensive than the FDCPA,” Best,

supra, 64 Cal.App.5th at p. 576, neither party suggests the causes of action alleged here

differ in any way from each other, and instead describe them as derivative claims. Since

the analysis of the Rosenthal Act claim mirrors that of the FDCPA claim in this case, we

do not separately discuss the Rosenthal Act here.

2.

people who owe them. The legislative history of the FDCPA shows Congress was not

merely concerned with misrepresentations during the attempted collection of valid debts,

but also the attempted collection of debts from people who in fact owed no money at all.

While there is a narrow affirmative defense for “bona fide” mistakes that a debt collector

may avail themselves of to prevent liability under the FDCPA, there is no suggestion

LVNV sought to or could demonstrate such a defense here. Therefore, we will remand

this case for further appropriate proceedings.

BACKGROUND

This matter originated with the filing of a complaint by LVNV on January 24,

2023,2 for $3,627.30 in damages. Rodriguez was personally served with the complaint

on February 5. Thereafter, she filed an answer and cross-complaint. The cross-complaint

alleged three causes of action pursuant to Civil Code section 1798.92, the FDCPA, and

the Rosenthal Act, respectively, and sought declaratory and injunctive relief, actual and

statutory damages, and attorney fees. On May 9, LVNV dismissed its complaint without

prejudice. Approximately a month later, on June 5, LVNV filed an anti-SLAPP motion

to strike Rodriguez’s cross-complaint, arguing Rodriguez could not establish a

probability of prevailing on the merits of her FDCPA and Rosenthal Act claims because

LVNV was merely mistaken in its effort to collect the debt from the wrong Yolanda

Rodriguez.

The trial court concluded Rodriguez could not establish a probability of prevailing

on the merits, because there was nothing false, deceptive, or misleading about the debt

collection action. It found even the “least sophisticated debtor” would have recognized

the address on the documentation attached to the complaint was not hers, and that there

was “nothing inherently false about the complaint” merely because it was served on the

2 Subsequent references to dates are to dates in 2023 unless stated otherwise.

3.

wrong Yolanda Rodriguez. The court granted the anti-SLAPP motion via minute order

on August 1. Notice of appeal was timely filed.

DISCUSSION

A. Standard of Review

“We review a trial court’s ruling on a special motion to strike pursuant to [Code of

Civil Procedure] section 425.16 under the de novo standard. (Monster Energy Co. v.

Schechter (2019) 7 Cal.5th 781, 788; Park v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1067.) ‘In other words, we employ the same two-

pronged procedure as the trial court in determining whether the anti-SLAPP motion was

properly granted.’ (Mendoza v. ADP Screening & Selection Services, Inc. (2010)

182 Cal.App.4th 1644, 1652.)” (Belen v. Ryan Seacrest Productions, LLC (2021)

65 Cal.App.5th 1145, 1156 (Belen).)

“As always, ‘our job is to review the trial court’s ruling, not its reasoning.’

(People v. Financial Casualty & Surety, Inc. (2017) 10 Cal.App.5th 369, 386.) We

consider ‘the pleadings, and supporting and opposing affidavits stating the facts upon

which the liability or defense is based.’ ([Code Civ. Proc.,] § 425.16, subd. (b)(2).) In

considering the pleadings and declarations, we do not make credibility determinations or

compare the weight of the evidence; instead, we accept the opposing party’s evidence as

true and evaluate the moving party’s evidence only to determine if it has defeated the

opposing party’s evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif

(2006) 39 Cal.4th 260, 269, fn. 3.)” (Belen, supra, 65 Cal.App.5th at p. 1156.)

“When a party moves to strike a cause of action (or portion thereof) under the anti-

SLAPP law, a trial court evaluates the special motion to strike by answering two

questions: (1) has the moving party ‘made a threshold showing that the challenged cause

of action arises from protected acitivity’ (Rusheen v. Cohen (2006) 37 Cal.4th 1048,

1056); and, if it has, (2) has the nonmoving party demonstrated that the challenged cause

of action has ‘ “minimal merit” ‘ by making ‘a prima facie factual showing sufficient to

4.

sustain’ a judgment in its favor? (Baral [v. Schnitt (2016)] 1 Cal.5th 376, 384-385; see

Navallier v. Sletten (2002) 29 Cal.4th 82, 93-94; see also [Code Civ. Proc.,] § 425.16,

subd. (b)(1).) If the first prong is satisfied by the moving party, the burden then shifts to

the nonmoving party to demonstrate that each challenged claim based on protected

activity is legally sufficient and factually substantiated.” (Belen, supra, 65 Cal.App.5th

at p. 1157.)

In this case, we agree that the filing of the cross-complaint by Rodriguez was

protected activity. However, we also hold that, for the reasons set forth below, Rodriguez

has demonstrated that her claims have minimal merit, satisfying the second prong.

B. FDCPA/Rosenthal Act

The FDCPA is a consumer protection statute enacted “to eliminate abusive debt

collection practices by debt collectors, to insure [sic] that those debt collectors who

refrain from using abusive debt collection practices are not competitively disadvantaged,

and to promote consistent State action to protect consumers against debt collection

abuses.” (15 U.S.C. § 1692, subd. (e).) It was enacted based on “abundant evidence of

the use of abusive, deceptive, and unfair debt collection practices by many debt

collectors.” (Id., § 1692, subd. (a).) Both the FDCPA and its state counterpart, the

Rosenthal Act, are strict liability statutes. (Clark v. Capital Credit & Collection Services,

Inc. (9th Cir. 2006) 460 F.3d 1162, 1175 (Clark); Young v. Midland Funding LLC (2023)

91 Cal.App.5th 63, 91; Aguilar v. Mandarich Law Group, LLP (2023) 87 Cal.App.5th

607, 622 (Aguilar).) “[B]ecause the FDCPA is a remedial statute aimed at curbing what

Congress considered to be an industry-wide pattern of and propensity towards abusing

debtors, it is logical for debt collectors—repeat players likely to be acquainted with the

legal standards governing their industry—to bear the brunt of the risk.” (Clark, supra,

460 F.3d at p. 1171.)

As relevant to this case, the FDCPA prohibits a debt collector from using any

“false, deceptive, or misleading representation or means in connection with the collection

5.

of any debt.”3 (15 U.S.C. § 1692e.) This includes prohibiting the “false representation

of … the character, amount, or legal status of any debt.” (15 U.S.C. § 1692e, subd. (2).)

There is substantial authority finding that attempts to collect debt based on a case

of mistaken identity give rise to a cause of action under the FDCPA. (Swanson v.

Southern Oregon Credit Service, Inc. (9th Cir. 1988) 869 F.2d 1222, 1225 [the FDCPA

was enacted to “ ‘eliminate the recurring problem of debt collectors dunning the wrong

person or attempting to collect debts which the consumer has already paid’ ”]; Roe v.

Roosen, Varchetti & Oliver, PLLC (E.D. Mich. June 19, 2019) No. 18-CV-13536,

2019 WL 2523589, at *2 [noting “the legislative history of the FDCPA reveals that

Congress was concerned with cases of mistaken identity and debt collectors trying to

recover from the wrong persons”]; Davis v. Midland Funding, LLC (E.D. Cal. 2014)

41 F.Supp.3d 919, 925 (Davis) [“It is difficult to conceive of a more unfair debt

collection practice than dunning the wrong person.”]; Bodur v. Palisades Collection, LLC

(S.D.N.Y. 2011) 829 F.Supp.2d 246, 254 (Bodur) [“District courts have found that ‘an

attempt to collect a debt from a non-debtor constitutes a “false representation” as to the

character or status of the debt in violation of 1692e.’ ”]; Johnson v. Bullhead Investments,

LLC (M.D.N.C. Jan. 11, 2010) No. 1:09CV639, 2010 WL 118274, at *6 [“the legislative

history of the FDCPA shows that Congress clearly intended to protect people subject to

harassment by debt collectors as a result of mistaken identity”]; Wenrich v. Robert E.

Cole, P.C. (E.D. Pa. Dec. 22, 2000) No. CIV. A. 00-2588, 2001 WL 4994, at *3 [noting

federal courts interpret the FDCPA as “a broad grant available to persons who are not

obligated or allegedly obligated to pay the debt that the defendant sought to collect”].)

The number of cases holding similarly is vast, and federal courts generally allow

claims under the FDCPA to proceed even when they are filed by individuals against

3 LVNV concedes it is a debt collector and filed this case as a debt collection

action, and thus, both the FDCPA and the Rosenthal Act apply to this case.

6.

whom a debt collection attempt was being made based merely on a case of mistaken

identity. (See, e.g., McNaney v. American Collections Enterprise, Inc. (D. Md. June 14,

2024) No. 1:23-cv-02396-JRR, 2024 WL 3013158, at *6; Hakobyan v. Midland Credit

Management, Inc. (E.D.N.Y. Dec. 7, 2023) No. 22-cv-5609 (BMC), 2023 WL 8473947,

at *2; Franks v. Achievable Solutions, Inc. (C.D. Cal. Jan. 29, 2021) No. SA CV 20-0977

FMO (DFMx), 2021 WL 3884281, at *3; Boozer v. Enhanced Recovery Company, LLC

(E.D. Mich. Oct. 18, 2019) No. 17-cv-14190, 2019 WL 5295730, at *7; Kayyal v.

Enhanced Recovery Company, LLC (N.D. Ill. Sept. 23, 2019) No. 17 CV 2718, 2019 WL

4601743, at *5; Isaac v. RMB, Inc. (N.D. Ala. July 18, 2014) No. 2:12–cv–2030–TMP,

2014 WL 3566069, at *5; Velazquez v. NCO Financial Systems, Inc. (E.D. Pa. May 31,

2011) No. 2:11–CV–00263, 2011 WL 2135633, at *5; Stuart v. AR Resources, Inc. (E.D.

Pa. Mar. 16, 2011) No. 10–3520, 2011 WL 904167, at *4; Valdez v. Capital Management

Services, LP (S.D. Tex. Nov. 16, 2010) No. B:09–246, 2010 WL 4643272, at *12;

Jeter v. Alliance One Receivables Management, Inc. (D. Kan. May 20, 2010) No. 10–

2024–JWL, 2010 WL 2025213, at *2; Owens v. Howe (N.D. Ind. Nov. 8, 2004) No.

1:04–CV–152, 2004 WL 6070565, at *11.) While not binding on us, given the vast

number of federal cases holding this and the fact these courts were interpreting a federal

law, we find them persuasive.

In support of this approach, federal courts have observed House Report 95-131,

discussing the reasons for enacting the FDCPA, stated explicitly: “This bill also protects

people who do not owe money at all. In the collector’s zeal, collection effort[s] are often

aimed at the wrong person either because of mistaken identity or mistaken facts. This bill

will make collectors behave responsibly towards people with whom they deal.”

(Dutton v. Wolhar (D. Del. 1992) 809 F. Supp. 1130, 1134–1135, italics added.) Another

court has noted the “Senate shared this concern, commenting that one of the purposes of

the Act is to ‘eliminate the recurring problem of debt collectors dunning the wrong

person or attempting to collect debts which the consumer has already paid.’ ”

7.

(Thompson v. CACH, LLC (N.D. Ill. Oct. 24, 2014) No. 14 CV 0313, 2014 WL 5420137,

at *3.) LVNV’s argument that “mistakenly filing a lawsuit against the wrong person is

not … a violation” of the FDCPA has been repeatedly held to be incorrect. A debt

collection action against a person who does not owe the debt but rather simply bears the

same name as the debtor falsely represents the character or status of the debt. (See

15 U.S.C. § 1692e, subd. (2).)

This interpretation of the FDCPA is bolstered by the fact that the statute contains

an express defense for certain debt collectors who can show “by a preponderance of

evidence that the violation was not intentional and resulted from a bona fide error

notwithstanding the maintenance of procedures reasonably adapted to avoid any such

error.” (15 U.S.C. § 1692k, subd. (c).) The “bona fide error” defense requires the debt

collector to show they “(1) violated the FDCPA unintentionally; (2) the violation resulted

from a bona fide error; and (3) the debt collector maintained procedures reasonably

adapted to avoid the violation.” (Urbina v. National Business Factors Inc. (9th Cir.

2020) 979 F.3d 758, 763.) The third criteria means a “debt collector is not entitled under

the FDCPA to sit back and wait until a creditor makes a mistake and then institute

procedures to prevent a recurrence. To qualify for the bona fide error defense under the

FDCPA, the debt collector has an affirmative obligation to maintain procedures designed

to avoid discoverable errors[.]” (Reichert v. National Credit Systems, Inc. (9th Cir. 2008)

531 F.3d 1002, 1007.)

Here, upon an appropriate showing, LVNV could establish its suit against

Rodriguez was a “bona fide error” and thus avoid liability under the statute. Whether

such a defense would ultimately prevail is beyond the scope of this appeal, as LVNV did

not raise or seek to prove any aspect of this affirmative defense in its anti-SLAPP motion.

(See, e.g., Paredes v. Credit Consulting Services, Inc. (2022) 82 Cal.App.5th 410, 438

[discussing evaluation of affirmative defenses in second prong of anti-SLAPP analysis];

Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 683.) However, the fact the statute

8.

provides for such a defense indicates cases of mistaken identity are generally actionable

under the FDCPA, as there would otherwise be no need to include such a defense.

LVNV argues, as the trial court found, that the “least sophisticated debtor” would

not be confused in the situation presented here, because Rodriguez should have noticed

the address on the documents attached to the complaint was not her address. We are not

convinced. Analyzing whether the debt collector’s conduct might mislead the consumer

is an objective inquiry that looks to whether the “ ‘ “ ‘least sophisticated debtor would

likely be misled by a communication.’ ” ’ ” (Aguilar, supra, 87 Cal.App.5th at p. 622.)

“The ‘least sophisticated debtor’ standard is ‘lower than simply examining whether

particular language would deceive or mislead a reasonable debtor.’ ” (Gonzales v. Arrow

Financial Services, LLC (9th Cir. 2011) 660 F.3d 1055, 1061.) “The standard is

‘designed to protect consumers of below average sophistication or intelligence,’ or those

who are ‘uninformed or naive,’ particularly when those individuals are targeted by debt

collectors.” (Id. at 1062.) “At the same time, the standard ‘preserv[es] a quotient of

reasonableness and presum[es] a basic level of understanding and willingness to read

with care,’ ” and does not create liability based on interpretations that are “bizarre,”

“idiosyncratic,” or “peculiar.” (Ibid.)

The trial court found, and LVNV argues, that the least sophisticated debtor being

served with a lawsuit apparently filed against them would not be misled where the

attached documents indicate the named defendant is affiliated with an address to which

the served person knows they have no relation. This is not a fair or accurate assessment.

As Rodriguez notes, the act of being served with a summons and complaint is one of

jurisdictional significance. “A summons is the process by which a court acquires

personal jurisdiction over a defendant in a civil action.” (MJS Enterprises, Inc. v.

Superior Court (1984) 153 Cal.App.3d 555, 557.) “ ‘ “Service of process is the means by

which a court having jurisdiction over the subject matter asserts its jurisdiction over the

party and brings home to him reasonable notice of the action.” ’ ” (Rockefeller

9.

Technology Investments (Asia) VII v. Changzhou SinoType Technology Co. Ltd. (2020)

9 Cal.5th 125, 139.) Service performs “two important functions. From the court’s

perspective, service of process asserts jurisdiction over the person,” and it “protects a

defendant’s due process right to defend against an action by providing constitutionally

adequate notice of the court proceeding.” (Ibid.)

Understood as an act of jurisdictional significance, service of a summons and

complaint on Yolanda Rodriguez means defendant and cross-complainant Rodriguez—

i.e., the person who was served—is the defendant in the case. The court has jurisdiction

over this Yolanda Rodriguez. It does not have jurisdiction over any other people named

Yolanda Rodriguez. That jurisdiction exists whether the person served is the Yolanda

Rodriguez who, in fact, owes the debt. The Yolanda Rodriguez who was served is the

one being publicly accused of shirking her debts, and must now appear and defend the

case. Indeed, it is that Yolanda Rodriguez against whom default judgment will be

entered if she does not appear, and who can then be subject to further proceedings to

collect the debt now reduced to a judgment by way of default. It is not only the least

sophisticated consumer that would reasonably understand from being served with a

lawsuit that she is being accused of owing the debt at issue in the complaint: every

reasonable attorney and jurist would understand that as well. That is the meaning and

effect of serving a summons and complaint on someone bearing the name of the

defendant in the case. The served defendant must now appear and defend the matter, or

risk a default judgment being asserted against them. It would be unreasonable to suggest

a consumer in such circumstances could simply ignore a court summons.

Numerous courts have found that suing the wrong person over a debt is actionable

under the FDCPA, as discussed supra, because “ ‘an attempt to collect a debt from a non-

debtor constitutes a “false representation” as to the character or status of the debt in

violation of 1692e.’ ” (Bodur, supra, 829 F.Supp.2d at p. 254.) It is hard to imagine a

more unfair and misleading debt collection activity than actually suing an innocent

10.

person who happens to share the same name as another debtor. (Davis, supra,

41 F.Supp.3d at p. 925.) This exceeds the misleading effects of sending a letter or

making a telephone call to the accused debtor, and is substantially more likely to be taken

seriously and to compel a response.

We understand there are a few courts that have found differently. (See, e.g.,

Hedayati v. Perry Law Firm (C.D. Cal. Oct. 27, 2017) No. SA CV 16–0846–DOC

(DFMx), 2017 WL 4864491, at *7 (Hedayati) [finding “[e]ven the least sophisticated

debtor knows his own address and can understand that, if he receives debt collection

notices that list an address he doesn’t recognize and a name similar to his own, that the

debt collector likely has the wrong individual”].) Setting aside that the significant weight

of authority lies against this analysis, we simply find this unpersuasive.4 Even if the least

sophisticated debtor knows they have not lived at one address listed for the defendant of a

lawsuit, they also know that by being served with a lawsuit, they are the one being

accused, they must defend the suit, and they will be subject to an adverse judgment if they

do not. Service of that process is misleading, because it falsely represents the character

and status of the debt, namely, by accusing someone who is not the debtor of owing

money. It also attaches significant legal and practical consequences to that accusation.

(See Davis, supra, 41 F.Supp.3d at p. 925 [noting “studies show[ ] that anywhere from

29% to well over 90% of debt collection lawsuits result in default judgments in favor of

the debt collector or creditor”].)

We also note the plaintiff’s burden in the second prong of an anti-SLAPP analysis

“is not high; the plaintiff need only establish that the claims have ‘ “minimal merit.” ’ ”

(Wisner v. Dignity Health (2022) 85 Cal.App.5th 35, 43.) Given the significant authority

above finding strict liability FDCPA claims can be stated based on cases of merely

4 It bears noting that the court in Hedayati also found the defendant debt collector

had proven the bona fide error defense. (Hedayati, supra, 2017 WL 4864491, at *8–9.)

11.

mistaken identity, we find Rodriguez’s FDCPA and Rosenthal Act claims have at least

minimal merit. Accordingly, we conclude the trial court erred in concluding Rodriguez

could not show a probability of succeeding on the merits.

DISPOSITION

The order granting LVNV’s anti-SLAPP motion is reversed, and this case is

remanded for further proceedings not inconsistent with this opinion. Rodriguez shall

recover costs on this appeal.

SNAUFFER, J.

WE CONCUR:

PEÑA, Acting P. J.

SMITH, J.

12.

Filed 11/12/24 – Order for Publication

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

LVNV FUNDING, LLC,

F086904

Plaintiff and Respondent,

(Super. Ct. No. 23CECG01294)

v.

ORDER GRANTING REQUESTS

YOLANDA RODRIGUEZ, FOR PUBLICATION

Defendant and Appellant.

As the nonpublished opinion filed on October 23, 2024, in the above entitled

matter hereby meets the standards for publication specified in the California Rules of

Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the

Official Reports.

Snauffer, J.

WE CONCUR:

Peña, Acting P.J.

Smith, J.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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