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Joseph v. J.J. Mac Intyre Companies

September 12, 2003

RUBY JOSEPH, PLAINTIFF,
v.
J.J. MAC INTYRE COMPANIES, L.L.C., DEFENDANT



The opinion of the court was delivered by: Chen, United States Magistrate Judge.

ORDER DENYING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Docket No. 46)

A hearing was conducted on Defendant's motion for summary judgment on September 3, 2003. Christopher Jennings of Kemnitzer, Anderson, Barron & Ogilvie appeared on behalf of Plaintiff, and Clark Garen appeared on behalf of Defendant. Based on the Court's review of the record in this case, as well as the moving papers, accompanying declarations and oral argument heard before the Court, the Court DENIES the motion.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

Plaintiff, a San Francisco resident, brought suit alleging five causes of action against the Defendant, a debt collection agency located in Riverside County, California, in connection with Defendant's efforts to collect on debts owed by Plaintiff for patient care at San Francisco General Hospital. Plaintiff alleges: (1) violation of the Rosenthal Fair Debt Collection Practices Act (California Civil Code § 1788 et seq.); (2) violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692; (3) an invasion of privacy; (4) tort-in-se; and (5) violation of Cal. Business and Professions Code § 17200 et seq. First Amended Complaint (hereinafter "FAC"). Plaintiff Ruby Joseph (hereinafter referred to as "Joseph" or "Plaintiff") sought injunctive relief, restitution and damages. Id. Sometime prior to March 1999, Plaintiff, physically disabled, sought and received medical services from San Francisco General Hospital, owned and operated by the City and County of San Francisco. Joseph incurred debt at San Francisco General Hospital in the amount of $2,356.62. Joseph's debt was assigned to a debt collection agency, CODAR, Inc., d/b/a J.J. Mac Intyre Company.

In March 1999, Defendant began sending collection letters to Joseph in an attempt to collect interest and the principal debt owed by her. In addition to collection letters, Defendant also used an automated dialing system with a pre-recorded voice to call Joseph. Joseph alleges that through this system, Defendant called Joseph at odd hours and as often as three times a day over a year and a half period, even though Joseph had begun making $50 monthly payments towards her debt. FAC ¶¶ 8-17.

The suit was filed in San Francisco Superior Court on May 2, 2002. On June 10, 2002, Defendant removed this matter to federal court pursuant to 28 U.S.C. §§ 1357 and 1367. Both parties consented to proceed before the Court pursuant to 28 U.S.C. § 636(c)(1).

In December, 2002, this Court granted Defendant's (1) motion to dismiss Plaintiff's claims that Defendant violated § 1788.13(e) of the Rosenthal Act and § 1692f(1) of the FDCPA by impermissibly collecting interest; and (2) motion for summary judgment regarding claims under 15 U.S.C. § 1692c(a)(1) based upon off-hour phone calls. The Court also denied Defendant's (1) motion to dismiss Plaintiff's claims under § 1788.11(b) and § 1692d(6) for lack of meaningful disclosure of identity; (2) motion for summary judgment regarding Plaintiff's claims under Civil Code § 1788.11(d), § 1788.11(e) and 15 U.S.C. § 1692d(5) for repeated phone calls with intent to harass or annoy; (3) motion for summary judgment regarding Plaintiff's invasion of privacy claims for intrusion upon seclusion; (4) motion for summary judgment on Plaintiff's claim for tort-in-se; and (5) motion for summary judgment on Plaintiff's claim under Cal. Business and Professions Code § 17200 et seq. Joseph v. J.J. MacIntyre Cos., 238 F.Supp.2d 1158 (N.D.Cal.2002).

Defendant now moves for summary judgment on all remaining claims, including (1) § 1788.11(b) and § 1692d(6) for lack of meaningful disclosure of the caller's identity; (2) §§ 1788.11(d)-(e) and § 1692d(5) for repeated phone calls with intent to harass or annoy; (3) intrusion upon seclusion; (4) tort-in-se; and (5) Cal. Business and Professions Code § 17200 et seq. MSJ, at passim. Defendant argues that its automated messages should not be required to disclose that the phone calls are from a debt collection agency in light of the overall statutory scheme of the FDCPA and the Rosenthal Act. Id. at 4-10. Defendant also contends that there is no genuine issue of fact regarding repeated harassing calls because virtually all the calls to Plaintiff's residence were either outside the one-year statute of limitations or were directed at other residents in Plaintiff's home. Id. at 3, 10-13. Finally, Defendant argues that since there are no genuine issues of material fact regarding Plaintiff's FDCPA and Rosenthal Act claims, Plaintiff therefore will not be able to present evidence supporting her claims of invasion of privacy, tort-in-se, and unfair business practices. Id. at 13-15.

Summary judgment shall be granted upon showing that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Coca-Cola Co. v. Overland, Inc., 692 F.2d 1250, 1253 (9th Cir.1982). The moving party possesses the initial burden of showing the absence of a genuine issue of fact. See Blair Foods, Inc. v. Ranchers Cotton Oil, 610 F.2d 665, 668 (9th Cir.1980). An issue of fact is "genuine" only if there is sufficient evidence for a reasonable fact finder to find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Aydin Corp. v. Loral. Corp., 718 F.2d 897, 902 (9th Cir.1983) (stating that a genuine issue is found where "a judge or jury [must] resolve the parties' differing versions of the truth at trial"). Justifiable inferences are to be drawn in the non-moving party's favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

II. ANALYSIS

A. Statute of Limitations

The Court recognizes that district courts are not of a single view as to how the one-year statute of limitations for the FDCPA applies to a course of conduct, some of which occurred within the limitations period and some of which preceded it.*fn1 In Padilla v. Payco General American Credits, Inc., 161 F.Supp.2d 264 (S.D.N.Y.2001), in which the plaintiff alleged that a debt collection company violated the FDCPA in attempting to collect her college and law school loans, the court denied, in relevant part, defendant's motion for summary argument and rejected an argument by the debt collector that is similar to the one made by Defendant in this case:

Without citing any legal authority, Payco contends that this statute of limitations prohibits Padilla from raising any factual allegations that took place more than one year before July of 1998, when she first filed suit in Massachusetts. However, the statute of limitations is not intended to deprive plaintiffs of the use of evidence of violations that took place more than a year before filing, but rather to protect defendants by ensuring that the ...


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