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Hamberg v. JP Morgan Chase Bank

June 22, 2010


The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court




On November 24, 2009, Edwin Hamberg and Karen Hamberg ("Plaintiffs") filed a complaint against JP Morgan Chase Bank ("Chase") and Zwicker & Associates, PC ("Zwicker," together "Defendants") in the Superior Court of the State of California for the County of San Diego. (Doc. No. 1, Compl.) On December 21, 2009, Chase filed a notice of removal and Zwicker filed a notice of consent to removal. (Doc. Nos. 1 & 3.) On February 5, 2010, Plaintiffs filed a first amended complaint ("FAC"). (Doc. No. 10.) On February 22, 2010, Chase filed a motion to dismiss and strike portions of Plaintiffs' FAC. (Doc. No. 12.) On March 8, 2010, Zwicker filed a motion to dismiss Plaintiffs' FAC. (Doc. No. 13.) On April 5, 2010, the Court issued an order granting Chase's motion to dismiss and strike and granting in part and denying in part Zwicker's motion to dismiss. (Doc. No. 18.) The Court permitted Plaintiffs to file an amended complaint curing the deficiencies highlighted in the Court's order. (Id.) On May 6, 2010, Plaintiffs filed a second amended complaint ("SAC"). (Doc. No. 19 ("SAC").) On May 24, 2010, Chase filed a motion to dismiss and strike portions of Plaintiffs' SAC. (Doc. No. 22.) On June 4, 2010, Plaintiffs filed a response in opposition to Chase's motion to dismiss and strike. (Doc. No. 23.) On June 14, 2010, Chase filed a reply in support of its motion to dismiss and strike. (Doc. No. 25.)

The Court determined this matter is appropriate for resolution without oral argument and submitted the motion on the parties' papers pursuant to Local Civil Rule 7.1 (d)(1). (Doc. No. 24.) For the reasons set forth below, the Court grants in part and denies in part Chase's motion to dismiss and denies Chase's motion to strike.


Plaintiffs' SAC alleges violations of California's Rosenthal Fair Debt Collection Practices Act ("Rosenthal Act"), Cal. Civil Code § 1788 et seq., violation of California Civil Code section 1785.25(a), and invasion of privacy. (SAC.) Plaintiffs allege that they incurred a debt with Defendants and that on March 8, 2009, Plaintiffs retained the Doan Law Firm, LLP to represent Plaintiffs with respect to the debt. (Id. ¶¶ 23, 24.) Plaintiffs allege that, notwithstanding actual knowledge of the disputed liability on the debt, "Defendants willfully, intentionally, consistently and purposely represented each month to credit reporting agencies that the debt was not disputed by the Plaintiffs" from March 2009 through present. (Id. ¶ 50.) Additionally, Plaintiffs allege that, despite knowledge of attorney representation, Defendants intentionally, willfully, deliberately, and knowingly communicated with Plaintiffs regarding the alleged debt. (Id. ¶ 53.) Specifically, Plaintiffs allege that Defendants were responsible for sixty-six unlawful communications between March and October 2009. (Id. ¶ 58.)


I. Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

A motion to dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the claims asserted in the complaint. Navarro v. Black, 250 F.3d 729, 732 (9th Cir. 2001). Rule 8(a)(2) requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The function of this pleading requirement is to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. A complaint does not "suffice if it tenders naked assertions devoid of further factual enhancement." Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). "Factual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. "All allegations of material fact are taken as true and construed in the light most favorable to plaintiff. However, conclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim." Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996); see also Twombly, 550 U.S. at 555.

A. Invasion of Privacy

Plaintiffs' tenth cause of action is for invasion of privacy. (SAC ¶¶ 155-171.) "[T]he action for intrusion has two elements: (1) intrusion into a private place, conversation or matter, (2) in a manner highly offensive to a reasonable person." Taus v. Loftus, 40 Cal. 4th 683, 725 (2007) (quotation marks and citation omitted). "While what is 'highly offensive to a reasonable person' suggests a standard upon which a jury would properly be instructed, there is a preliminary determination of 'offensiveness' which must be made by the court in discerning the existence of a cause of action for intrusion." Deteresa v. American Broad. Co., Inc., 121 F.3d 460, 465 (9th Cir. 1997) (quoting Miller v. Nat'l Broad. Co., 187 Cal. App. 3d 1463 (1986)).

"In determining the 'offensiveness' of an invasion of a privacy interest, common law courts consider, among other things: the degree of the intrusion, the context, conduct and circumstances surrounding the intrusion as well as the intruder's motives and objectives, the setting into which he intrudes, and the expectations of those whose privacy is invaded."

Id. (quoting Hill v. Nat'l Collegiate Athletic Ass'n, 7 Cal. 4th 1 (1994)). Considering these factors and the allegations in Plaintiffs' SAC, the Court concludes that Plaintiffs have not alleged facts to show that Chase's alleged intrusion would be highly offensive to a reasonable person. Plaintiffs allege that Defendants intruded upon their privacy by continuing to communicate with Plaintiffs after receiving cease and desist notices. (SAC ¶ 158.) Additionally, Plaintiffs allege that Defendants interrupted Ms. Hamberg, that Chase "used intimidating language," and that Defendants attempted to make Plaintiffs feel guilty for exercising their right to file for bankruptcy. (Id. ¶¶ 164, 166.) These allegations and the others contained in Plaintiffs' SAC, without more, fall short of showing that Chase's contacts would be highly offensive to a reasonable ...

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