# Muzi Gao v. Campus 150 Venture II, LLC

> District Court, C.D. California · January 31, 2022

URL: https://www.frixlaw.com/law-library/cases/9979029

## Case

- **Court:** District Court, C.D. California
- **Decided:** January 31, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9979029

## Opinion text

Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 1 of 16 Page ID #:2070

1
2
O
3
4
5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 MUZI GAO, ) Case No. SACV 20-01355 DDP (ADSx)
)
12 Plaintiff, )
) ORDER RE: CROSS-MOTIONS FOR
13 v. ) SUMMARY JUDGMENT
)
14 CAMPUS 150 VENTURE II, LLC, )
et al., )
15 ) [Dkt. 58, 65, 71]
Defendants. )
16
17
Presently before the court are cross motions for summary
18
judgment, one filed by Defendants Campus 150 Venture II, LLC
19
(“Campus”) and BYL Collection Services, LLC (“BYL”), and the other
20
filed by Plaintiff Muzi Gao (“Gao”). Having considered the
21
submissions of the parties, the court grants the motions in part,
22
denies the motions in part, and adopts the following Order.
23
I. Background
24
In August 2018, Plaintiff entered into a residential lease
25
agreement with Defendant Campus. The lease required Plaintiff to
26
pay 12 monthly installments of $860, plus an additional $100 per
27
month for garage parking. Before moving in, Plaintiff paid “a
28
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 2 of 16 Page ID #:2071

1 security deposit of $1,920 — representing two months’ worth of
2 rent.”1 (Declaration of Muzi Gao, ¶ 3.)
3 The parties dispute whether Plaintiff timely paid rent for the
4 months of June and July 2019. According to Campus’ regional
5 manager, Chenoa Anderson, Gao did not make rent payments for June
6 and July, and owed $1,929 in back rent when her lease expired at
7 the end of July 2019. (Declaration of Chenoa Anderson ¶ 7.) When
8 deposed, however, Anderson testified that Plaintiff never missed
9 any rent payments. (Declaration of Ryan McBride, Ex. I at 26-27.)
10 In any event, Campus did not charge Plaintiff late fees for unpaid
11 rent, and applied the $1,920 “deposit” amount toward her account.
12 After the lease expired, Plaintiff incurred a $135 assessment
13 for apartment and carpet cleaning fees. (Anderson Decl. ¶ 10.) On
14 August 13, Campus sent her a “Final Account Statement” indicating
15 (1) that the “deposit” had been applied to “charges due,” (2) a
16 zero balance at move-out, and (3) the additional cleaning charges
17 of $135. (McBride Decl., Ex C.) The final statement indicated
18 that payment was due within 30 days. (Id.)
19 On September 7, 2019, Plaintiff mailed a check for the
20 cleaning charges to Campus. (Gao Decl. ¶ 12; Ex. N). As of
21 September 24, however, Campus had not received Plantiff’s payment,
22 and thus placed her in “collection” status. At some point
23 thereafter, Campus assigned the account to BYL, the collections
24 agency Campus regularly used in connection with delinquent
25
1 Although Plaintiff’s declaration, consistent with
26
Defendants’ characterization, characterizes this payment as a
deposit, Plaintiff’s motion describes this payment as “advanced
27
rent.” The Lease Agreement does provide that the landlord may
require the tenant to pay “advance installments of basic rent,” and
28
that “all such payments shall be considered advanced rent.”
2
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 3 of 16 Page ID #:2072

1 accounts. According to Anderson, Campus referred Gao’s account to
2 BYL on September 27. (Anderson Decl. ¶ 15.) BYL’s records
3 indicate, however, that BYL received the account on October 1.
4 (McBride Decl., Exs. E, I at 38.) There is no dispute, however,
5 that Campus received Plaintiff’s payment on September 27,
6 “unselected” her “in collection status,” and closed her account.
7 Nevertheless, BYL believed that Gao’s account continued to be
8 delinquent. (Declaration of Jeffrey Heft ¶ 7.) In December, BYL
9 reported the account as delinquent to two credit reporting bureaus,
10 Equifax Information Services, LLC (“Equifax”) and Trans Union, LLC
11 (“Trans Union”). (Declaration of Jeffrey Heft ¶ 7.)
12 Soon after, Plaintiff noticed an adverse impact on her credit
13 report and initiated a dispute with both Experian and Trans Union.
14 (Gao Decl. ¶¶ 15-16.) It appears that BYL received a verification
15 request on January 17, 2021. (McBride Decl., Ex. H at 49.)
16 However, the BYL employee assigned to the matter, Caroline
17 Alessandro (“Alessandro”), did not follow BYL procedures and did
18 not conduct an investigation. (Id. at 50.) The employee
19 nevertheless reported the information accurate as reported. (Id.
20 at 51.) In February, both credit bureaus notified Gao that the
21 debt was correctly reported. (Id. ¶ 17.)
22 In March 2020, Plaintiff called Campus to confirm that her
23 account was paid in full. (Declaration of Craig Mariam, Ex. 14 at
24 61-62.) That same day, Campus sent BYL and Gao an e-mail
25 acknowledging that Gao’s account had a zero balance, and requesting
26 that BYL correct the account and “resubmit to her credit report.”
27 (Id. at 63; Anderson Decl. ¶ 16; Ex. 5.) Gao did not contact BYL
28 at that time. BYL’s President, Jeffrey Heft, states that BYL never
3
Case §:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 4of16 Page ID #:2073

1]} became aware of the Campus e-mail because the message was diverted
2|| to the BYL recipient’s spam folder. (Heft. Decl. 16.)
3 In April, Plaintiff sent dispute letters to Campus, BYL,
□□ Equifax, and Trans Union. (Gao Decl. @ 22.) BYL again received
5} verification requests from the credit bureaus. BYL employee
6]}/ Alessandro, who had failed to conduct a prior investigation, was
7 again assigned to the matter. Alessandro, working from home due to
8]} the COVID pandemic and related government mandates, once again
failed to conduct an investigation, and again reported the debt as
10!) accurate. (McBride Decl., Ex. H at 60-61; Heft Decl. FIFI 8-10.)
11 BYL received Gao’s direct dispute on April 28, 2020. (Heft
12}/ Decl. @ 11.) This time, a different BYL employee handled Gao’s
13} letter, and on May 8, BYL marked the account “in dispute” and
notified the credit bureaus of that change. (Id. 7 12.) BYL then
15} confirmed with Campus that Gao’s account was not delinguent. The
16}/ account was removed from Gao’s credit report on August 9, 2020.
17] (Heft Decl. I 14.)
18 Plaintiff’s complaint alleges causes of action against BYL for
19]/ violations of the Fair Credit Reporting Act (“FCRA”’), the Fair Debt
20] Collection Practices Act (“FDCPA”’) and California’s Consumer Credit
21]} Reporting Agencies Act (“CCRAA”).* Plaintiff also alleges claims
22}} under California’s Rosenthal Fair Debt Collection Practices Act?
□□ □□ (“RFDCPA”) and for defamation against both BYL and Campus, as well
24|/as a negligence claim against Campus. Campus and BYL seek summary
25
26
57 * See 15 U.S.C. § 1681, et segq.; 15 U.S.C. § 1692, et seg.;
Cal. Civil Code § 1785, et seq.
28 > See Cal. Civil Code § 1788, et seq.

Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 5 of 16 Page ID #:2074

1 judgment on all claims. Plaintiff seeks partial summary judgment
2 on certain elements of certain of her claims.
3 II. Legal Standard
4 Summary judgment is appropriate where the pleadings,
5 depositions, answers to interrogatories, and admissions on file,
6 together with the affidavits, if any, show “that there is no
7 genuine dispute as to any material fact and the movant is entitled
8 to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A party
9 seeking summary judgment bears the initial burden of informing the
10 court of the basis for its motion and of identifying those portions
11 of the pleadings and discovery responses that demonstrate the
12 absence of a genuine issue of material fact. See Celotex Corp. v.
13 Catrett, 477 U.S. 317, 323 (1986). All reasonable inferences from
14 the evidence must be drawn in favor of the nonmoving party. See
15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 242 (1986). If the
16 moving party does not bear the burden of proof at trial, it is
17 entitled to summary judgment if it can demonstrate that “there is
18 an absence of evidence to support the nonmoving party's case.”
19 Celotex, 477 U.S. at 323.
20 Once the moving party meets its burden, the burden shifts to
21 the nonmoving party opposing the motion, who must “set forth
22 specific facts showing that there is a genuine issue for trial.”
23 Anderson, 477 U.S. at 256. Summary judgment is warranted if a
24 party “fails to make a showing sufficient to establish the
25 existence of an element essential to that party’s case, and on
26 which that party will bear the burden of proof at trial.” Celotex,
27 477 U.S. at 322. A genuine issue exists if “the evidence is such
28 that a reasonable jury could return a verdict for the nonmoving
5
Case §:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page6Gof16 Page ID #:2075

1] party,” and material facts are those “that might affect the outcome
2|)/ of the suit under the governing law.” Anderson, 477 U.S. at 248.
3] There is no genuine issue of fact “[w]here the record taken as a
4} whole could not lead a rational trier of fact to find for the
5} nonmoving party.” Matsushita Elec. Indus. Co. v. Zenith Radio
6 Corp., 475 U.S. 574, 587 (1986).
7 It is not the court’s task “to scour the record in search of a
genuine issue of triable fact.” Keenan v. Allan, 91 F.3d 1275,
9] 1278 (9th Cir. 1996). Counsel have an obligation to lay out their
10] support clearly. Carmen v. San Francisco Sch. Dist., 237 F.3d
1026, 1031 (9th Cir. 2001). The court “need not examine the entire
12} file for evidence establishing a genuine issue of fact, where the
13}/ evidence is not set forth in the opposition papers with adequate
14] references so that it could conveniently be found.” Id.
IIIT. Discussion
16 A. RFDCPA Claims
17 i. Consumer Credit Transaction
18 The RFDCPA limits the ways in which debt collectors may seek
□□□ to collect outstanding consumer debts. Cal. Civ. Code § 1788.10.
201 Such debts include “consumer credit transactions,” in which
21]| “property, services, or money is acquired on credit.” Cal. Civ.
□□ □□ Code § 1788.2(e); (£). The parties appear to agree that residential
rent collection is not a consumer credit transaction. See Phillips
24 v. Archstone Simi Valley LLC, No. CV155559DMGPLAX, 2016 WL 7444550,
25]/at *5 (C.D. Cal. Dec. 15, 2016). The parties disagree, however, as
26])/ to whether the $135 debt at issue here represents a rental debt or,
27\/as Plaintiff characterizes it, a charge for a cleaning service that
28

Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 7 of 16 Page ID #:2076

1 was payable within thirty days, and thus constituted a credit
2 transaction.
3 Defendants’ argument is premised on the contention that Gao
4 missed two rent payments, and that Gao is attempting to create a
5 credit transaction where none otherwise would have existed. This
6 line of reasoning is not entirely clear. There is some uncertainty
7 as to the character of Gao’s $1,920 “deposit.” Although Gao
8 herself referred to it as such, and it appears as a “deposit” on
9 her account statement, Defendants cite to no provision in the Lease
10 Agreement requiring a security deposit. Rather, the Lease
11 Agreement allows Campus to require “advance installments of basic
12 rent.” The Lease Agreement also provides that “all such payments
13 shall be considered advanced rent.” Although the property
14 manager’s declaration states that Plaintiff did not make rental
15 payments after May 2019, it appears that Plaintiff did not make
16 rental payments for June and July because she had already paid
17 $1,920 in “advance rent.” Thus, as the same property manager later
18 testified, Gao never actually missed any rent payments. At the
19 very least, there remains a triable issue as to the predicate for
20 Defendants’ argument: that Gao failed to pay rent due.
21 Regardless of the outcome of that question of fact, however,
22 Defendants appear to concede that the cleaning charges were not
23 incurred or billed, nor cleaning services provided, until after the
24 termination of the Lease Agreement. Nor can there be any dispute
25 that Gao was granted thirty days to settle those charges.4 There
26
4 To the extent Defendants suggest that Campus voluntarily
27 credited Gao’s $1,920 “deposit” toward rent rather than toward
cleaning fees, Defendants do not explain how Campus enjoyed such
28 (continued...)
7
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 8 of 16 Page ID #:2077

1 is, therefore, at least a triable issue as to whether Gao and
2 Campus engaged in a consumer credit transaction.5
3 ii. Whether Campus is a debt collector
4 With respect to the RFDCPA claim, Campus raises the additional
5 argument that it, as opposed to BYL, is not a debt collector. The
6 statute defines “debt collector” as one “who, in the ordinary
7 course of business, regularly . . . engages in debt collection.”
8 Cal. Civ. Code § 1788.2(c). There is no evidence, however, that
9 Campus ever engages in debt collection, let alone regularly does so
10 in the ordinary course of business.6 Rather, Campus refers all
11 delinquent accounts to BYL. (Anderson Decl. ¶ 14.) Although
12 Plaintiff argues that Campus should be deemed to regularly engage
13 in debt collection because it regularly assigns collections to BYL,
14 Plaintiff does not cite to, nor is the court aware of, any
15 authority for the proposition that assigning a debt to a third
16
17
18
19
4(...continued)
20 discretion, in light of the Lease Agreement’s provision stating
that all advance payments were to be considered as rent payments.
21 Indeed, although Defendants assert that Gao has attempted to re-
characterize a rental debt as a consumer debt, it would appear that
22 Campus, not Gao, sought to define the nature of the debt by
applying funds toward one type of charge rather than another.
23
5 Given this dispute of fact, neither BYL nor Plaintiff is
24 entitled to summary judgment on Plaintiff’s RFDCPA claim.
25
6 The statute defines debt collection as “any act or practice
in connection with the collection of consumer debts.” Cal. Civ.
26
Code § 1788.2(b). “Consumer debt,” in turn, includes money due as
a result of a “consumer credit transaction.” Cal. Civ. Code §
27
1788.2(f). As discussed above, residential rent collection is not
a consumer credit transaction. Mortgage debt, however, does
28
constitute a “consumer debt.” Id.
8
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 9 of 16 Page ID #:2078

1 party constitutes “an act or practice in connection with” debt
2 collection.7
3 Absent any evidence that Campus itself regularly engages in
4 debt collection in the ordinary course of business, Campus is
5 entitled to summary judgment on Plaintiff’s RFDCPA claim.8
6 B. FDCPA Claims
7 Under the FDCPA, a debt collector may not use a false
8 representation of “the character, amount, or legal status of any
9 debt” in connection with the collection of a debt. 15 U.S.C. §
10 1692e(2)(A). Nor may a debt collector “use unfair or
11 unconscionable means to collect or attempt to collect any debt.”
12 15 U.S.C. § 1692f. Such unfair means include the “collection of
13 any amount . . . unless such amount is expressly authorized by the
14 agreement creating the debt or permitted by law.”9 Defendants
15 maintain that BYL did not violate the FDCPA because BYL “merely
16 reported that a debt was owed,” and “[n]ever demanded any payment
17 from Ms. Gao.” (Motion at 15:27-16:1.)
18 In her briefs to this court, including her reply in support of
19 her motion for summary judgment, Plaintiff argues that BYL did send
20
21 7 Indeed, even though mortgage debt is a “consumer debt,”
“[n]umerous courts within the Ninth Circuit have concluded that
22 foreclosure pursuant to a deed of trust is not the collection of a
debt within the meaning of the RFDCPA.” Gates v. Wachovia Mortg.,
23 FSB, No. 2:09-CV-02464, 2010 WL 4025064, at *2 (E.D. Cal. Oct. 13,
2010) (collecting cases).
24
8 Plaintiff’s motion for summary judgment with respect to the
25 RFDCPA claim against Campus is, therefore, denied.
26
9 Although Plaintiff’s briefs suggest that Plaintiff brings
separate claims pursuant to Sections 1692f and 1692f(1), both
27
provisions are listed in the same cause of action in Plaintiff’s
Complaint, and it is unclear whether or how the facts support two
28
independent claims.
9
Case 9:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 10o0f16 Page ID #:2079

1] her a collection letter. The record includes an October 7 letter
2\| from BYL to Plaintiff bearing a “BYLCollections” logo, referring to
3]/a $135 debt. (McBride Decl., Ex. T.) The letter explicitly
4|| stated, “This communication is from a debt collector and is an
5] attempt to collect a debt.” (“Id.) The letter also included a
6]}) payment stub captioned “Pay By Mail” and listing an “Amount Due” of
71 $135, with additional instructions on how to enter credit card
8]} payment information. (Id.) At oral argument, however, Plaintiff
9}} conceded that she never received the letter. The letter cannot,
10}| therefore, serve as the predicate for Plaintiff’s FDCPA claims.
11 Alternatively, Plaintiff argues that BYL’s inaccurate
12]) reporting to the credit reporting agencies constitutes a false
□□□ representation of a debt for purposes of 15 U.S.C. § 1692e(2) and
14]/ an unfair means to collect a debt under 15 U.S.C. § 1692f. Several
15}/ courts have indeed suggested that reporting of information to
16]/ credit reporting agencies is sufficiently “connected to debt
17} collection,” at least for purposes of 15 U.S.C. § 1692e(2) (A).
18 |} Memmott v. OneWest Bank, No. CIV. 10-3042-CL, 2011 WL 1560985, at
19] *12 (D. Or. Feb. 9, 2011); see also Sotto v. Mountain Lion
20 || Acquisitions Inc., No. 818CVOO0245JLSDFM, 2018 WL 6167922, at *3
21 (C.D. Cal. Nov. 8, 2018); Yulaeva v. Greenpoint Mortg. Funding,
22}} Inc., No. CIVS-09-1504 LKK/KJM, 2009 WL 2880393, at *10 (E.D. Cal.
23] Sept. 3, 2009) (“[P]laintiff’s claim here is based on reporting of
24|| default to credit reporting agencies, an activity .. . that is
25} also squarely connected to debt collection.”); cf. Morgovsky v.
26] Creditors’ Collection Serv. of San Francisco, 19 F.3d 28 n.1 (9th
Cir. 1994) (discussing jurisdiction over claim of allegedly
28
10

Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 11 of 16 Page ID #:2080

1 misleading report to credit agency in violation of 15 U.S.C. §
2 1692e(2)(A)) (unpublished disposition).
3 Accordingly, Plaintiff’s motion is granted with respect to the
4 question whether FDCPA violations occurred under 15 U.S.C. §
5 1692e.10
6 C. Bona Fide Error
7 Defendants also seek summary judgment on Plaintiff’s FDCPA,
8 FCRA, CCRAA, and RFDCPA claims on the basis of affirmative defenses
9 of bona fide error and reasonable procedures. A debt collector is
10 not liable for an FDCPA violation if “the violation was not
11 intentional and resulted from a bona fide error notwithstanding the
12 maintenance of procedures reasonably adapted to avoid any such
13 error.” Reichert v. Nat’l Credit Sys., Inc., 531 F.3d 1002,
14 1005–06 (9th Cir. 2008) (quoting 15 U.S.C. ¶ 1692k(c)). The FCRA,
15 CCRAA, and RFDCPA contain similar provisions. See 15 U.S.C. §
16 1681m(c); Cal. Civ. Code § 1785.25; Cal. Civ. Code § 1788.62(e).
17 BYL concedes that its employee, Alessandro, failed to conduct
18 an appropriate, or indeed any, investigation in response to the
19 verification requests from the credit agencies, and erroneously
20 confirmed the validity of the reported debt multiple times. There
21 is no direct evidence, however, of any intentional policy decision
22 on BYL’s part to not conduct investigations. Indeed, once a
23 competent employee became aware of Plaintiff’s dispute, BYL changed
24
25
10 The court is not persuaded, however, that BYL’s
communications with credit bureaus, absent any communication with
26
Plaintiff herself, constitute a “means to collect or attempt to
collect any debt” for purposes of 15 U.S.C. § 1692f. Furthermore,
27
Plaintiff’s FDCPA claim under 15 U.S.C. § 1692e remains subject to
Defendants’ bona fide error affirmative defense, discussed below.
28
11
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 12 of 16 Page ID #:2081

1 the debt status to “disputed” within ten days, notified the credit
2 agencies of the change, and resolved the entire matter within three
3 months. A reasonable trier of fact could conclude that BYL’s
4 failure here was “an isolated instance of human error that was
5 promptly cured.” Brown v. Equifax Info. Servs., LLC, No.
6 1:09-CV-0168-CAM-LTW, 2010 WL 11647403, at *17 (N.D. Ga. Feb. 16,
7 2010) (collecting cases).
8 The record does not, however, compel such a conclusion.
9 Alessandro was one of only six BYL employees, and served not as an
10 entry-level new hire, but rather as BYL’s compliance manager. The
11 nature of her position, combined with her repeated failures, give
12 rise to a genuine dispute as to BYL’s willful or reckless
13 conduct.11 Even assuming BYL’s mistakes were unintentional, BYL
14 can only escape liability if its policies were (1) “reasonably
15 adapted to avoid the error” and (2) actually maintained. Reichert,
16 531 F.3d at 1006 (quoting Johnson v. Riddle, 443 F.3d 723, 729
17 (10th Cir.2006); Wilhelm v. Credico, Inc., 519 F.3d 416, 421 (8th
18 Cir.2008) Both of these questions present disputes of fact.
19 Defendants have introduced evidence of BYL’s procedures, policies,
20 and employee-training efforts. (Heft Decl., ¶¶ 3-4; Exs. 6-8.) It
21 is not clear, however, whether or how those particular policies
22 generally prevented total failures to investigate, such as
23 Alessandro’s. Furthermore, those policies may be of limited
24 relevance here, given Defendants’ own evidence that the COVID-19
25 pandemic “had a severe impact on BYL,” “posed significant
26
27
11 For this same reason, Defendant is not entitled to summary
judgment on Plaintiff’s common law claims. See 15 U.S.C. §
28
1681h(e).
12
Case 9:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 13o0f16 Page ID #:2082

1} difficulties in terms of monitoring employee productivity,” and
2 || required BYL to “invest[] in and adopt[] new technologies.” (Heft
31 Decl. 74 10.) The nature and extent of BYL’s COVID-adjusted
4!) policies remains to be seen, and whether those procedures were
5 |} reasonable is a question for the trier of fact.’
6 D. Emotional Distress Damages
7 Lastly, Defendants seek summary judgment on Plaintiff’s claim
for emotional damages. “To survive summary judgment on an emotional
9! distress claim under the FCRA, Plaintiff must submit evidence that
10]}/ reasonably and sufficiently explains the circumstances of his
11] injury and does not resort to mere conclusory statements.”
12] Taylor v. First Advantage Background Servs. Corp, 207 F. Supp. 3d
1371095, 1102 (N.D. Cal. 2016) (quoting Centuori v. Experian Info.
Solutions, Inc., 431 F.Supp.2d 1002, 1010 (D.Ariz.2006)). A
15] plaintiff’s testimony alone may be sufficient to meet this burden.
16] Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1040 (9th Cir.
17} 2003).
18 Courts have found sufficient detail in plaintiffs’ testimony
19]}/ where, for example, plaintiffs testify as to specific forms and
20 manifestation of mental distress. See, e.g., Llewellyn v. Allstate
21} Home Loans, Inc., 711 F.3d 1173, 1183 n.3 (10th Cir. 2013)
22|| (discussing “drenching night sweats, panic attacks,” “great stress
23|) and anxiety,” and plaintiff’s feeling that he “could not
241 recover.”); Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235,
25] 241 (4th Cir. 2009) (discussing “headaches, sleeplessness, skin
26
27 ‘ This triable issue also precludes a grant of summary
28 judgment in Plaintiff’s favor on her FDCPA, FCRA, CCRAA, and RFDCPA
claims.
13

Case §:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 14o0f16 Page ID #:2083

1} acne, upset stomach, and hair loss,” along with testimony from
2|| third parties). At the same time, some courts have found
3} insufficient detail even where plaintiffs testify as to specific
4] forms of distress. See, e.g., Smart v. Emerald City Recovery, LLC,
5|}/ No. C18-0448-JCC, 2019 WL 366205, at *2 (W.D. Wash. Jan. 30, 2019)
6]| (finding allegations that plaintiff was “embarrassed, suffered
headaches, nausea, nerves, loss of concentration, insomnia and loss
8l|/of sleep, anxiety, irritability, frustration and intimidation and
suffered emotionally in other ways from the distress of having a
10]}) stranger come in the middle of the night” too conclusory).
11 Here, Plaintiff testified, “I feel emotional stress because
12] I’m very worried about the adverse impact that this issue can cause
13}/me. And I feel stressful everyday because I try to resolve this
14]/ issue as soon as possible.” (Mariam Decl., Ex. 14 at 106.)
15} Plaintiff further testified that her credit report issues caused
her to forego her typical midday nap or rest, and that “it’s like
17]/ you always have this thing hanging there and you can’t resolve it.”
18] (Id. at 107-108.) Plaintiff’s friend also testified that Plaintiff
told her she was “really stressed,” and began taking melatonin to
201 sleep. (Mariam Decl., Ex. 15 at 34, 47. 58.) Under any standard,
21]} this evidence does not sufficiently explain the nature or
circumstances of Plaintiff’s emotional distress in anything more
23]} than conclusory terms.'? Summary judgment in favor of defendants
24 eee
'3 Defendants cite to cases finding plaintiff testimony
25 unacceptably conclusory. See, e.g., Costa v. Nat’l Action Fin.
26 Servs., 634 F. Supp. 2d 1069, 1078 (E.D. Cal. 2007);
Bolton v. Pentagroup Fin. Servs., LLC, No. CIV-F-08-0218 AWI GS,
2009 WL 734038, at *10 (E.D. Cal. Mar. 17, 2009). The courts in
27 those cases, however, concluded that plaintiffs claiming emotional
59 distress damages must meet state court standards for intentional
(continued...)
14

Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 15 of 16 Page ID #:2084

1 is therefore warranted with respect to Plaintiffs’ claim for
2 emotional distress damages.
3 E. Remaining Issues Raised by Plaintiff
4 As discussed above, summary judgment is not appropriate on
5 Plaintiff’s FDCPA, FCRA, CCRAA, and RFDCPA claims, as (1) Campus is
6 not a debt collector under the RFDCPA and (2) triable issues remain
7 with respect to BYL’s affirmative defenses. Nevertheless, in the
8 alternative, Plaintiff also seeks partial summary judgment with
9 respect to certain elements of her claims that do not overlap with
10 Defendants’ motion. Neither Defendants’ opposition nor Plaintiff’s
11 reply, however, makes any mention of any of these non-overlapping
12 elements. Although there appears to be no dispute, the court has
13 reviewed the evidence and agrees with Plaintiff that there is no
14 triable issue as to whether (1) BYL is a furnisher of credit
15 information under the FCRA; (2) BYL reported credit information to
16 a credit reporting agency; (3) Plaintiff disputed the “debt” to
17 consumer reporting agencies; (4) BYL furnished inaccurate
18 information; (5)BYL failed to conduct a reasonable investigation of
19 the disputed information; (6) BYL knew or should have known the
20 information was inaccurate; (7) BYL is a “person” under the CCRA;
21 (8) Plaintiff suffered some degree of actual damages as a result of
22 BYL’s inaccurate reporting; (9) Plaintiff is a “consumer” and
23 “debtor;” and (10) BYL is a “debt collector.” Plaintiff’s motion
24 is granted with respect to these elements of her claims.
25 IV. Conclusion
26
13(...continued)
27
infliction of emotional distress. The Ninth Circuit has not
addressed the question, and Defendants themselves do not contend
28
that such a relatively high standard is appropriate.
15
Case 8:20-cv-01355-DDP-ADS Document 93 Filed 01/31/22 Page 16 of 16 Page ID #:2085

1 For the reasons stated above, Defendants’ and Plaintiff’s
2 motions are both GRANTED, in part, and DENIED, in part. Summary
3 judgment is granted in favor of Campus with respect to Plaintiff’s
4 RFDCPA claim. Summary judgment is granted in favor of both
5 Defendants with respect to Plaintiff’s claim for emotional distress
6 damages. Partial summary judgment is granted to Plaintiff as to
7 certain elements of her claims against BYL, but denied with respect
8 to her FDCPA, FCRA, CCRAA, and RFDCPA claims more generally.
9
10
11
12
13 IT IS SO ORDERED.
14
15
16 Dated:
January 31, 2022 DEAN D. PREGERSON
17 United States District Judge
18
19
20
21
22
23
24
25
26
27
28
16

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9979029. Public record. Not legal advice.