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Travis Branco v. Credit Collection Services Inc

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


August 23, 2011

TRAVIS BRANCO;
PLAINTIFF,
v.
CREDIT COLLECTION SERVICES INC.; DEFENDANT.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

This matter comes before the court on (1) plaintiff Travis Branco's ("plaintiff") motion for partial summary judgment relating to his claims for violations of the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. 1692 et seq., and the California Rosenthal Fair Debt Collection Practices Act ("RFDCPA"), Cal. Civ. Code § 1788 et seq. and (2) defendant Credit Collection Services, Inc.'s ("defendant" or "CCS") cross-motion for summary judgment, or in the alternative, partial summary judgment, as to plaintiff's claims pursuant to the FDCPA and RFDCPA. Plaintiff opposes defendant's motion, and defendant opposes plaintiff's motion. For the reasons set forth below,*fn1 plaintiff's motion is granted in part and denied in part and defendant's motion is granted in part and denied in part.

BACKGROUND*fn2

This dispute arose when plaintiff failed to pay for car insurance provided by Liberty Mutual Insurance Company. (Pl.'s Statement of Undisputed Facts ["SUF"], filed July 20, 2011, [Docket #19, Attachment 4], ¶ 13.) On or about November 17, 2009, the debt was assigned to defendant for collection. (Def.'s Statement of Undisputed Fact ["DUF"], filed July 21, 2011, [Docket #22, Attachment 1], ¶ 10.) In attempt to collect the debt, CCS began making telephone calls to 209-296-4089, the number plaintiff provided Liberty Mutual and Liberty Mutual thereafter provided defendant. (Id. ¶ 13.) This was the number for plaintiff's parents' residence. (SUF ¶ 5.) Between November 19, 2009, and March 26, 2010, defendant attempted to contact plaintiff at the above number fourteen times. (Id. ¶ 18.)

Defendant left the following message on plaintiff's parents' answering machine five times:

This is for Travis Branco. If the intended party cannot be reached at this number, please call 800-998-5000, and we will cease further attempts to this number. If you are not the intended party, please hang up at this time. This message contains private information and should not be played in a manner where it can be heard by others...(music)...This call is from CCS, Credit Collection Services. This is an attempt to collect a debt and any information obtained will be used for that purpose. For your privacy protection, please visit our secure website at www.warningnotice.com to access your personal account information. Your file number is 05036201574. Thank you.

(DUF ¶ 20.)

The outgoing message on plaintiff's parents' answering machine states: "You have reached the Branco residence. Please leave a message and phone number so that Steve, Sari or Travis may return your call." (Id. ¶ 19.) Apparently, plaintiff's parents' answering machine does not have a function that permits the listener to skip the message. (SUF ¶ 8.)

At the time defendant left these message, Travis Branco did not live at his parents' residence. (DUF ¶ 21.) However, plaintiff's mother, Sari Branco, overheard the content of the messages. (SUF ¶ 7; DUF ¶ 9.) Sari Branco told plaintiff that an 800 number had been calling and that she did not know who it was until defendant left the aforementioned message. (DUF ¶ 23.) Plaintiff never returned any phone call to CCS, nor did anyone contact defendant to request it cease calling the number. (Id. ¶¶ 24-26.)

Plaintiff has moved for partial summary judgment on his claims for violation of sections 1692b(2) and 1692c(b) of the FDCPA and Section 1788.17 of the RFDCPA. (Pl.s Mot. for Partial Summ. J. ["Pl.'s Mot."], filed July 20, 2011, [Docket #20], at 6:12-13.) Defendant moves for summary judgment as to each of plaintiff's claims. (See Def.'s Mot. for Summ. J. ["Def.'s Mot.], filed July 21, 2011, [Docket #22].)

STANDARD

A motion for partial summary judgment is resolved under the same standard as a motion for summary judgment. See California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Summary judgment is appropriate when it is demonstrated that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis of its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. at 324. Indeed, summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322.

If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the denials of its pleadings, but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. Fed. R. Civ. P. 56(e). The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, Id. at 251-52.

In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." First Nat'l Bank, 391 U.S. at 289. In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Rule 56(c); SEC v. Seaboard Corp., 677 F.2d 1301, 1305-06 (9th Cir. 1982). The evidence of the opposing party is to be believed, and all reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Anderson, 477 U.S. at 255. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898 (9th Cir. 1987).

ANALYSIS

A. FDCPA

Plaintiff asserts that defendant violated the following provisions of the FDCPA: (1) § 1692b(2); (2) § 1692c(b); (3) § 1692d; (4) § 1692d(5). (Pl.'s Complaint ["compl."], filed May 15, 2010, [Docket #1], at 4:9-25.) Plaintiff alleges that defendant violated these provisions when it called plaintiff fourteen times and left voice messages that were overheard by his parents. (Pl.'s Mot. at 6:3-18.) Defendant contends that the messages it left on plaintiff's parent's answering machines contained sufficient warnings regarding the nature of the call such that it is not liable under any of the aforementioned provisions of the FDCPA or the RFDCPA. (Def.s' Mot. at 1:16-28.)

Congress enacted the FDCPA in 1977 to eliminate abusive debt collection practices, to insure that 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. § 1692e; see also Wade v. Regional Credit Association, 87 F.3d 1098, 1099 (9th Cir. 1996) (discussing purpose of the FDCPA). As such, the statute is liberally construed to protect the "least sophisticated debtor." Clark v. Capital Credit & Collection Services, Inc., 460 F.3d 1162, 1171 (9th Cir. 2006); see also Clomon v. Jackson, 988 F.2d 1314, 1318-19 (2d Cir. 1993). This objective standard "ensure[s] that the FDCPA protects all consumers, the gullible as well as the shrewd . . . the ignorant, the unthinking and the credulous." Clomon, 988 F.2d at 1318-19.

1. Section 1692b(2)

Plaintiff and defendant both move for summary judgment on plaintiff's claim under Section 1692b(2). Plaintiff maintains that defendant violated this section by leaving a voice mail at his parent's house stating that plaintiff owes a debt. (Pl.'s Mot. at 12:20-13:6.) Defendant contends that plaintiff's claim under this Section fails because plaintiff has failed to show it was seeking location information in connection with the calls. (Def.'s Mot. at 5:5-14.) Section 1692b(2) provides that "[a]ny debt collector communicating with any person other than the consumer for the purpose of acquiring location information about the consumer shall - (1) identify himself, state that he is confirming or correcting location information concerning the consumer, and, only if expressly requested, identify his employer; (2) not state that such consumer owes any debt.

15 U.S.C. § 1692b(2) (emphasis added).

In this case, plaintiff's claim fails as a matter of law because he has failed to produce any evidence demonstrating that defendant communicated with a third party "for the purpose of acquiring location information," an essential element of his statutory claim. Id. Not only does plaintiff's motion fail to establish that defendant sought location information, but the message itself also contains no indication that defendant sought location information. (SUF ¶ 14.) Since plaintiff has failed to produce any evidence establishing an essential element of his claim, his motion for summary judgment on this claim is DENIED and defendant's motion for summary judgment on this claim is GRANTED. See Celotex, 477 U.S. 323 (1986). (holding that the moving party is entitled to summary judgment where "the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.")

2. Section 1692c(b)

Plaintiff and defendant both move for summary judgment on plaintiff's claim under Section 1692c(b). Plaintiff contends that, "[b]y choosing to leave three messages on the answering machine, that were then heard by a third party, the [d]efendant[] communicated with a third party in violation" of Section 1692c(b). (Pl.'s Mot. at 14:24-15:2.) Defendant argues that it did not violate this section because: (1) the number they dialed was the contact information plaintiff gave Liberty Mutual, and thus, plaintiff "assumed the risk of messages left and overheard"; (2) Plaintiff was the intended recipient of the message which instructed non-intended listener to hang up, and thus, it was improper for any third party to listen to the message; (3) "No one ever contacted CCS to inform CCS that it had the wrong number." (Def.'s Mot. at 6:1-9:6.) As set forth below, defendant's assertions regarding this section are unavailing.

Pursuant to Section 1692c(b), "without the prior consent of the consumer given directly to the debt collector . . . a debt collector may not communicate, in connection with the collection of any debt, with any person other than the consumer."

15 U.S.C. § 1692a(2) defines a communication as "the conveying of information regarding a debt directly or indirectly to any person through any medium." Voice mail messages from debt collectors constitute communications for purposes of the FDCPA. See e.g., Hosseinzadeh v. M.R.S. Assoc., Inc., 387 F.Supp.2d 1104, 1115-16 (C.D. Cal. 2005); Berg v. Merchants Assoc. Collection Div., Inc., 586 F.Supp.2d 1336, 1341 (S.D. Fla. 2008); Foti v. NCO Fin. Sys., 424 F.Supp.2d 643, 655-56 (S.D.N.Y.2006).

First, defendant's assertions that plaintiff assumed that risk that third parties would overhear the communication, and that defendant cannot be liable because plaintiff never contacted defendant are wholly without merit. Defendant does not point to any provision of the FDCPA, nor does he cite to any authority discussing either any alleged "assumption of the risk" defense, nor does any provision of the FDCPA require the debtor to return phone calls made by a collection agency. For these reasons alone, defendant's contentions in this regard are unpersuasive.

Similarly, defendant's position that it cannot be liable because the message was solely intended for plaintiff and that plaintiff's mother should have refrained from listening when she heard the warning is wholly without merit. First, defendant attempts to support its position by analogizing to Segal v. National Action Financial Servs., Inc., Civ. No. 8:04-2388, 2006 WL 449176 (M.D. Fla. 2006), which held that there is no violation of Section 1692c(b) when a person, other than the debtor, opens mail the collector sent to the debtor. Defendant maintains that there is no violation here because, like opening a letter addressed to another, "it was [also] improper for anyone to listen to Mr. Branco's message without his permission."

(Def.'s Mot. at 7:27-28.) Segal, however, is inapposite. First, "[t]he potential for abuse or harassment by debt collectors is far greater in telephone calls than in written communications." Johnson v. NCB Collections Services, 799 F.Supp. 1298, 1303

(D.Conn.1992). Thus, the court scrutinizes verbal communications to third parties to a greater extent than written communications. Moreover, contrary to defendant's contention, deliberately opening another person's mail is not logically equivalent to inadvertently hearing a message left for another person on one's own answering machine.

Defendant cites to no authority supporting its proposition that a person must refrain from listening to a voice message in his or her own home merely because the message is for another person. Indeed, the weight of the case law militates strongly in favor of the inverse conclusion.

First, in Berg v. Merchants Assoc. Collection Div., Inc., 586 F.Supp.2d 1336, 1338-39 (S.D. Fla. 2008),*fn3 defendant collection agency left a voice message*fn4 strikingly similar to that left by defendant here, which Berg's father, step-mother and neighbor heard. As is the case here, "Defendant left messages at the [p]laintiff's home with a warning to the listener to disconnect if the listener was not the [p]laintiff, and that continuing to listen to the message indicates that the listener was [p]laintiff." Id. at 1343. The court held that merely giving the warning that the party listening should hang up if not the plaintiff, does not shield a debt collector from liability under Section 1692c(b) when a third party overhears the message. Id. Similarly here, for the same reasons, defendant's contention that the warning on the message shields it from liability is ineffectual.

The District court of Minnesota's recent holding in Zorman v. J.C. Christensen & Associates, Civ. No. 10-3086, 2011 WL 1630935 (D.Minn. 2001) is similarly instructive. In Zortman, defendant left messages on plaintiff debtor's voicemail, which plaintiff's children overheard. Id. at *1. Defendant asserted, as does defendant in this case, that it was not liable under Section 1692c(b) for communicating with a third party because they did not "purposefully or deliberately make disclosures to a third party." Id. at *2. The court explained that reading an intent requirement into the statute would be "inconsistent with the ordinary meaning of 'to communicate,'" and thus, held that the Section 1692c(b) does not require a deliberate act. Id. at *5. The court noted that the "FDCPA is a strict liability*fn5 statute, which conflicts with requiring deliberate or purposeful intent." Id. (Citing Picht v. Jon R. Hawks, Ltd., 236 F.2d 446, 451 (8th Cir. 2001).)

Similarly here, the fact that plaintiff was the intended recipient of the message and that the message instructed non-intended listeners to hang up does not absolve defendant of liability for communicating information about the plaintiff's debt to a third party. Defendant is strictly liable under Section 1692c(b) for communicating with a third party - plaintiff's mother - without the debtor's consent, regardless of whether the communication was deliberate or intentional. Zorman, 2011 WL 1630935 at *5; see also Clayson v. Rubin & Rothman LLC, 751 F.Supp.2d 491 (W.D.N.Y. 2010) (holding that communicating twice with debtor's mother about the debt without the debtor's authorization violated section 1692c(b).)

Defendant also relies on staff commentary from the Federal Trade Commission ("FTC") - the agency charged with enforcing the act - which states that "[a] debt collector does not violate this provision when an eavesdropper overhears a conversation with the consumer, unless the debt collector has reason to anticipate the conversation will be overheard." (Def.'s Opp'n at 8:10-14.) Defendant's reliance on the agency's commentary is misplaced. The Berg court, in analyzing the same commentary, stated that "[t]he example given here by the FTC suggests that the FDCPA is violated by debt collectors who leave message for consumers while aware that the message may be heard by others." Berg, 586 F.Supp.2d at 1342. In this case, defendant had reason to anticipate that the conversation would be overheard - the outgoing message specifically states that plaintiff is not the only resident at the home. (SUF ¶ 6.) To this end, not only does the agency's commentary not help defendant, it actually supports the finding of liability in this instance.

In summary, the court DENIED defendant's motion for summary judgment GRANTS plaintiff's motion for partial summary judgment with respect to violations under Section 1692c(b) of the FDCPA.

3. Section 1692d and Section 1692d(5)

Defendant moves for summary judgment as to plaintiff's claims under Section 1692d,*fn6 arguing that the messages left by its agent were in no way "harassing, oppressive, or abusive." Therefore, defendant maintains, the messages did not violate Section 1692d, or any subsection therein. Plaintiff contends that defendant violated this section by calling plaintiff fourteen times over a fourth month period and causing plaintiff's "telephone to ring repeatedly and continuously with the intent to annoy, abuse and harass [p]laintiff." (Compl. ¶ 24.)

Section 1692d(6) states, in relevant part, that: A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress or abuse any person in connection with the collection of a debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: . . .(5) . . . Causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number. (Emphasis added).

In the context of collection calls, "[w]hether there is an actionable harassment or annoyance turns not only on the volume of calls made, but also on the pattern of the calls." Joseph v. J.J. MacIntyre Companies, 281 F.Supp.2d 1156, 1168 (N.D.Cal. 2002). For example, where the "collection agency's employees had made more than 90 calls to consumer's home, the content of the calls had been harassing in nature, employees had failed to identify themselves when called, had allowed the phone to ring repeatedly and called back immediately after consumers hung up the phone raised fact issues as to whether employees' conduct was offensive, precluding summary judgment." Arteaga v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D.Cal. 2010). Moreover, the court looks to whether the calls were made to debtor's work place or to debtor's residence at inconvenient hours. Id. Finally, the court looks to the number of calls made and whether the calls were made numerous times in the same day or within a short period of time. Id.

None of the egregious types of conduct identified above are present in this case. Plaintiff presents no evidence that defendant called his place of employment, called at odd hours, called continuously, or conveyed any misleading information. Moreover, there is no evidence defendant caused plaintiff's telephone to ring continuously or repeatedly engaged any person in telephone conversations with the intent to annoy or harass.

15 U.S.C. § 1692d(5). Indeed, defendant never actually spoke with anyone, it merely left messages at the phone number its client provided it to contact plaintiff.

Numerous courts construing Section 1962d have held that more egregious conduct on behalf of credit collection agencies is not sufficient to maintain a viable claim under Section 1962d. For example, this court, in Arteaga, held that "'daily' calls alleged by [plaintiff] failed to raise a genuine issue of material fact as to whether the communications were so frequent as to be unreasonably or to constitute harassment under the circumstances."; in Arteaga, 733 F.Supp.2d at 1229; see also Jiminez v. Accounts Receivable Mgmt., Civ No 09-970, 2010 WL 5829206 at *6 (C.D. Cal. 2010) (granting defendant collection company summary judgment because there was no evidence of defendant's intent to annoy, abuse or harass where defendant placed sixty-nine calls over a 115 day period, placed more than two calls in a day, but did not make calls to defendant's work, and never received a response to defendant's voice messages); compare Joseph, 281 F.Supp.2d at 1156 (N.D. Cal. 2003) (holding that 75 calls made to plaintiff's residence created genuine issue of fact as to whether collector's calls were part of a pattern of harassing conduct; Horkey v. J.V.D.B. & Associates, Inc., 333 F.3d 759 (7th Cir. 2003) (upholding statutory damages under § 1692d for collection agency's phone calls to plaintiff at her place of employment).

Similarly, here, fourteen calls over a period of four months, where the majority of the calls were placed approximately once every seven days is not sufficient to establish that "the natural consequence" of defendant's calls was to "harass, oppress or abuse" plaintiff. (DUF ¶ 18.) On these facts, "the [c]court concludes that any reasonable juror would only find that [defendant] placed its calls to [p]laintiff with the intent to reach [him] to collect the [d]ebt, and not because it intended to annoy, abuse, or harass [him]." Jiminez, 2010 WL 5829206 at *6.

Moreover, plaintiff's own actions, or lack thereof, supports granting defendant summary judgment on this claim. More specifically, neither plaintiff nor the other residents of the home ever returned any of defendant's calls. See Tucker v. The CBE Group, Inc., 710 F.Supp.2d 1301 (M.D. Fla 2010) (granting debt collector defendant summary judgment were defendant made 57 calls to plaintiff, including seven calls in one day, because the debt collector never spoke to the debtor, was never asked to cease calling, and never called back on the same day it left a message.)

Accordingly, the court GRANTS summary judgment in favor of defendant on plaintiff's Section 1692d and 1692d(5)

B. RFDCPA

Plaintiff alleges four claims under the RFDCPA:

(1) § 1788.17; (2) § 1788.11(d); § 1788.11(e); § 1788.12(b). The arguments of both parties regarding plaintiff's claims under the RFDCPA essentially mirror those arguments in support of their respective motions on plaintiff's claims under the FDCPA. In addition to those arguments, however, defendant contends that the RFDCPA "applies only to attempts to collect a debt that arises from a credit transaction." (Def.'s Mot. at 15:3-5.) Defendant contends that this is not a consumer debt arising from a credit transaction because it involved the prepayment of auto insurance. (Id. at 15:7-11.)

The RFDCPA only applies to consumer debts that arise from a credit transaction. Cal. Civ. Code § 1788.29(e)-(f). The RFDCPA defines a consumer credit transaction as one "in which property, services or money is acquired on credit." Id. § 1788.2(e). In other words, under California law, "there is a consumer credit transaction when the consumer acquires something without paying for it." Gouskos v. Aptos Village Garage, Inc., 94 Cal.App.4th 754, 759 (2001).

In this case, Liberty Mutual Insurance provided plaintiff car insurance for which he did not pay. As such, Liberty now seeks to recoup the debt owed for the auto insurance previously provided but plaintiff did not pay for. Such a consumer debt is subject to the RFDCPA.

1. Section 1788.17

Plaintiff moves for summary judgment as to his claim under Section 1788.17, asserting that violations of the FDCPA also constitute violations of California's RFDCPA. Therefore, plaintiff asserts defendant necessarily violated the RFDCPA when it violated the FDCPA. Defendant contends it did not violate the FDCPA and therefore did not violate the RFDCPA. In order to promote consistent state action, the RFDCPA incorporates the majority of the FDCPA in California Civil Code § 1788.17. Section 1788.17 states:

Notwithstanding any other provision of this title, every debt collector collecting or attempting to collect a consumer debt shall comply with the provisions of Sections 1692b to 1692j, inclusive of, and shall be subject to the remedies in Section 1692k of, Title 15 of the United States Code.

Therefore, claims asserted under the FDCPA constitute violations of the RFDCPA. Cal. Civ. Code § 1788.17. Accordingly, a plaintiff who recovers under the FDCPA is entitled to damages under the corresponding section of the RFDCPA. Cal. Civil Code § 1788.30(a). Such recovery is not improper "double recovery." See Cal. Civ. Code § 1788.32 ("remedies provided herein are intended to be cumulative . . . ."); Adams v. CIR Law Offices, LLP, 2007 WL 2481550 (S.D. Cal. Aug. 29, 2007).

As set forth above, defendant violated Section 1692c(b) of the FDCPA, and thus, violated Section 1788.17 of the RFDCPA. Thus, plaintiff is entitled to statutory damages pursuant to § 1788.17, for the same reasons as set forth above.

2. Section 1788.11(d) and 1788.11(e)

Defendant moves for summary judgment as to plaintiff's claims under Section 1788.11(d) and (e),*fn7 arguing that it is not liable under these provisions because it did not call plaintiff with the intent to annoy or harass plaintiff. Section 1788.11(d) states that a debt collector must refrain from "[c]ausing a telephone to ring repeatedly or continuously to annoy the person called." Similarly, Section 1788.11(e) proscribes "[c]ommunicating, by telephone or in person, with the debtor with such frequency as to be unreasonable and to constitute an harassment to the debtor under the circumstances."

As set forth above, the court finds as a matter of law that defendant's conduct did not arise to the level of harassment such that defendant violated Section 1692d of the FDCPA. For the same reasons, defendant did not violate either Section 1788.11(d) or 1788.11(e). Accordingly, defendant's motion for summary judgment as to plaintiff's claims under RFDCPA Sections 1788.11(d) and 1788.11(e) is GRANTED.

3. Section 1788.12(b)

Defendant moves for summary judgment*fn8 on plaintiff's claim under Section 1788.12(b) of the California Civil Code, arguing that it is not liable under Section 1788.12(b) because it did not intend to communicate information to a third party and because plaintiff lived with his parents when defendant left messages at their home. In essence, defendant asserts a bona fide error defense. Plaintiff contends that lack of intent is no defense to the violation.

Section 1788.12(b) of the RFDCPA prohibits "[c]ommunicating information regarding a consumer debt to any member of the debtor's family, other than . . . the parents or guardians of the debtor who is a minor or who resides in the same household with such parent." As previously stated, both FDCPA and the RFDCPA are "strict liability" statutes. See Clark, 460 F.3d 1162. However, under Section 1788.30(e) of the RFDCPA, a debt collector who violates any provision of the Act will not be liable "if the debt collector shows by a preponderance of the evidence that the violation was not intentional and resulted notwithstanding the maintenance of procedures reasonably adopted to avoid any such violation." (emphasis added)

In this case, it is undisputed that plaintiff did not live with his parents at the time defendant placed calls to plaintiff's parents' home. (DUF ¶ 21.) Therefore, defendant cannot avail itself of the statutory exception for minors who reside in the same household as the parent. Moreover, defendant cannot take refuge in the protection provided by Section 1788.30(e) because it has provided no evidence that it has maintained "procedures reasonably adopted to avoid such violation," as expressly required by the statute.

In this case, defendant is liable for violating Section 1788.12(b) for the same reasons defendant is liable for violating Section 1692c(b) of the FDCPA - namely, for communicating information regarding plaintiff's debt to his parents without the debtor's permission. Accordingly, defendant's motion for summary judgment as to plaintiff's claim under Section 1788.12(b) is DENIED.

C. Emotional Distress Damages Under the FDCPA and RFDCPA

Defendant moves for summary judgment as to plaintiff's claim for emotional distress damages pursuant to the FDCPA and RFDCPA, arguing plaintiff cannot establish the requisite elements for a state law claim of intentional infliction of emotional distress ("IIED"), and thus, cannot maintain a claim for emotional distress damages under the statutes. (Def.'s Mot. at 17). Plaintiff opposes defendant's motion, arguing that he "suffer[ed] stress as a result of the intentional actions of the [d]efendant who knowingly disclosed his indebtedness to third parties. (Pl.'s Opp'n to D.'s Mot. for Summ. J., filed Aug. 4, 2011, [Docket #23], at 22).

Under the FDCPA and RFDCPA, plaintiff may recover in addition to statutory damages, actual damages, including damages for emotional distress, sustained as a result of defendant's conduct in violation of the statutes. 15 U.S.C. §1692k(a)(1); Cal. Civ. Code § 1788.17. Here, plaintiff does not claim any out-of-pocket losses or other actual damages, except damages for alleged emotional distress she sustained as a result of defendant's conduct.

District courts are split over whether a plaintiff's claims for emotional distress damages under the FDCPA are evaluated under the state law governing the tort of IIED or some lower standard.*fn9 This court, however, has held that the a plaintiff "must establish the elements of a claim for IIED under state law in order to sustain a claim for emotional distress and damages under the FDCPA and RFDCPA." Costa v. Nat'l Action Fin. Serv., 634 F.Supp.2d 1069, 1078 (E.D.Cal. 2007).

Under the more lenient approach, courts have concluded that an FDCPA plaintiff does not need to meet state law standards for IIED in order to recover emotional distress damages for an FDCPA violation. See e.g., Panahiasl v. Gurney, Civ. No. 04-4479, 2007 WL 738642 at *1 (N.D. Cal. 2007); see also Foster v. D.B.S. Collection Agency, Civ. No. 01-514, 2006 WL 3491867 (S.D. Ohio 2006); McGrady v. Nissan Motor Acceptance Corp., 40 F. Supp. 2d 1323, 1338-39 (M.D. Ala. 1998). Under this approach, courts instead have analogized the FDCPA to the Fair Credit Reporting Act ("FCRA"). Panahiasl, 2007 WL 738642 at *1-2. "Under the FCRA, a statutory scheme very similar to the FDCPA, a plaintiff who proves a violation of the [A]ct is entitled to actual damages for emotional distress arising from the violation, without first having to prove a right of action under state law." Id. at *2. Applying this rational, courts hold that when a violation of the FDCPA has been established, actual damages for emotional distress can be proven independently of state law requirements; a plaintiff need not prove state law tort elements to be compensated for their emotional distress. Id. However, a plaintiff must demonstrate more than transitory symptoms of emotional distress and unsupported self-serving testimony by a plaintiff is not sufficient. Wantz v. Experian Info. Systems, 386 F.3d 829, 834 (7th Cir. 2004); Cousin v. Trans Union Co., 246 F.3d 359, 371 (5th Cir. 2001).

Alternatively, other courts require a plaintiff to prove a claim for IIED under state law in order to collect damages for emotional distress. See Pflueger v. Auto Finance Group, Inc., 1999 WL 33738434 at *4 (C.D. Cal. 1999); cf. Carrigan v. Central Adjustment Bureau, Inc., 502 F. Supp. 468, 470-71 (N.D. Ga. 1980) (holding plaintiff's claim for intentional infliction of mental distress arising from violations of the FDCPA met state requirements under Georgia tort law); Venes v. Professional Service Bureau, Inc., 353 N.W.2d 671, 674-75 (Minn. Ct. App. 1984) (finding plaintiff satisfied state elements of IIED and could thus recover emotional distress damages.) Under California law, to prove a claim for IIED, a plaintiff must show: (1) extreme and outrageous conduct by the defendant; (2) with intent to cause plaintiff emotional distress; (3) severe emotional distress suffered by plaintiff; and (4) defendant's conduct actually and proximately caused plaintiff's severe emotional distress. See Davidson v. City of Westminster, 32 Cal. 3d 197, 209 (1982) (enumerating elements of IIED under California law); see also Pflueger, 1999 WL 33738434 at *4 (listing elements of IIED plaintiff must prove to succeed in claims arising under FDCPA and RFDCPA).

This court finds persuasive those cases requiring a plaintiff to establish the elements of a claim for IIED under state law in order to sustain a claim for emotional distress damages under the FDCPA and RFDCPA. First, Section 1692 et seq. contains no indication Congress intended to create a more lenient IIED standard in enacting the FCDPA. Moreover, the FDCPA expressly requires definable actual damages to recover above and beyond statutory limit. 15 U.S.C. § 1692k(a)(1). The court finds that the standards for a state IIED claim establish rational standards that ensure that the alleged damages are actual and quantifiable.

Here, plaintiff cannot establish the requisite elements of a claim for IIED. Indeed, plaintiff does not discuss application of the facts to the state law standard for IIED in her opposition; on that basis alone, the court could grant the motion in defendant's favor. However, the court nonetheless discusses its findings.

The subject conduct does not rise to the level of "extreme and outrageous" conduct as a matter of law. At most, plaintiff alleges conduct that may have inconvenienced plaintiff, if that; significantly, the conduct occurred in only five voice mail messages which were not rude, misleading or abusive. Such conduct is not actionable as an IIED claim. Cole v. Fair Oaks Fire Prot. Dist., 43 Cal.3d 148, 155 (1987) ("Mere insults, indignities, threats, annoyances, petty oppressions or other trivialities" are not actionable as "outrageous conduct").

Moreover, specifically in collection cases, courts have long recognized that the very nature of collection efforts often cause a debtor to suffer emotional distress. See Bowden v. Spiegel, 96 Cal. App. 2d 793, 789 (1950). To be actionable as an IIED claim, however, the conduct must go beyond "all reasonable bounds of decency." Id.; see also Ross v. Creel Publishing, 100 Cal. App. 4th 736, 746-47 (2003). The conduct here simply does not meet this threshold.

Additionally, the court notes that in this case, neither plaintiff nor his parents returned any of defendants calls. This is not a case in which the debt collector repeatedly called and harassed a plaintiff despite being asked not to call. Here, plaintiff could have chosen to stop the contact altogether but did not do so.

Furthermore, plaintiff cannot demonstrate he suffered "extreme emotional distress." Plaintiff claims only that he experienced "stress" as a result of the messages left on his parent's answering machine; he has not, however, seen any medical professionals as a result of his alleged aliments and does take any medications, prescription or over-the-counter. Such failure to acknowledge this symptom required any treatment does not evidence extreme distress. Girard v. Ball, 125 Cal. App. 3d 722, 787-788 (1981). In Girard, the plaintiff claimed emotional distress after a debt collector attempted to collect on a debt against him by making phone calls and sending collection letters. The plaintiff claimed he "couldn't sleep" and suffered from "anxiety symptoms" and nervousness, but he sought no treatment for his condition. Id. Although subsequently the debtor claimed more extensive symptoms, the court held that emotional distress damages could not be sought for such "trivial" and "transitory" claims. Id. Such is also the case here.

Finally, even were the court to consider plaintiff's claims under a lower standard, neither the messages alone nor the phone calls made by defendant rises to the level necessary for plaintiff to recover emotional distress damages. Even those courts that have concluded that an FDCPA plaintiff need not meet state law standards for IIED, nonetheless require more than transitory symptoms of emotional distress for a plaintiff to recover damages. See Wantz, 386 F.3d at 834; Cousin, 246 F.3d at 371. For example, in Wantz, the court illustrated the types of "conclusory allegations" that do not permit emotional distress damages under the FDCPA:

Wantz's only evidence as to emotional distress was his testimony that: (1) he was 'humiliated and embarrassed' every time he was rejected for credit;' (2) it is 'mentally and emotionally distressful when dealing with credit reporting agencies;' and (3) it is 'embarrassing to go somewhere and have them check your credit report and see all that stuff on there' . . . Without further evidence to buttress those assertions, Wantz's case [can]not go forward. 386 F.3d at 834. Similarly, in Cousin, the court described the types of evidence necessary to support a claim for emotional distress damages, stating that a plaintiff alleging intangible loss must set forth evidence with specificity which includes "corroborating testimony or medical or psychological evidence in support of the damage award." 246 F.3d at 371 (emphasis added); see accord Dawson v. Washington Mutual Bank, 390 F.3d 1139, 1149-50 (9th Cir. 2004) (noting that "[n]on-experts, such as family members, friends, or co-workers, may testify to manifestations of mental anguish and clearly establish that significant emotional harm occurred").

Here, the only evidence of plaintiff's emotional distress is his own testimony, and this testimony demonstrates that his alleged emotional distress was transitory in nature and of the type not recoverable under the FDCPA. While plaintiff is not required to present expert testimony in support of his claim, Zhang v. American Gem Seafoods, 339 F.3d 1020, 1040 (9th Cir. 2003) (upholding emotional distress damages based only on testimony), he nevertheless fails to acknowledge that he cannot rely solely on his uncorroborated testimony to establish emotional distress. Wantz, 386 F.3d at 834; Cousin, 246 F.3d at 371. Indeed, he has no corroborating evidence whatsoever - no other witnesses or documentary evidence to support his claims. Without such evidence to buttress his assertions, plaintiff's claims cannot go forward. Wantz, 386 F.3d at 834.

In conclusion, although defendant's conduct constituted a technical violation of the FDCPA and RFDCPA, plaintiff's claims of stress do not rise to the level necessary to set forth a viable claim for IIED under either state law or any lower threshold established in some case law. Therefore, for the reasons set forth above, defendant's motion for summary judgment with respect to plaintiff's claim for emotional distress damages is GRANTED.

D. Statutory Damages

Plaintiff seeks statutory damages of $1,000 for defendant's violation of 15 U.S.C. § 1692c(b). The FDCPA provides that, apart from actual damages sustained, an FDCPA claimant may obtain "such additional damages as the court may allow, but not exceeding $1,000." 15 U.S.C. § 1692k(a)(2)(A). In determining the appropriate amount of statutory damages to award, the court considers "the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional." Id. § 1692k(b)(1).

In this case, the court finds that, while defendant technically violated the FDCPA by improperly communicating with third persons, defendant's conduct does not merit the full extent of statutory damages available. It is clear in this instance that, as set forth above, defendant's conduct did not amount to an intent to harass or abuse. Defendant reasonably relied on the telephone number given it by its client in placing calls to that number in order to collect a legitimate debt. Moreover, the wrongful nature of the noncompliance is drastically mitigated by the fact that neither plaintiff, nor any other person who heard the improper messages, called defendant to inform it that plaintiff was not the sole resident of the home. Based on the foregoing, the court, in its discretion, awards plaintiff $1 in statutory damages.

CONCLUSION

For the foregoing reasons, the court GRANTS plaintiff's motion for partial summary judgment with respect to his claim under 15 U.S.C. § 169c(b) of the FDCPA and his corollary claim under the Cal. Civil Code § 1788.17. The court also GRANTS defendant's motion for summary judgment as to plantiff's claim under §§ 16952b(2), 1692d and 1692d(5) of the FDCPA, plaintiff's claims under §§ 1788.11(d) and 1788.11(e) of the RFDCPA, and plaintiff's claim for emotional distress damages under the FDCPA and RFDCPA.*fn10 The court DENIES defendant's motion for summary judgment as to plaintiff's claim under Cal. Civil Code § 1788.12(b). Defendant is ordered to pay plaintiff $1 in statutory damages pursuant to 15 U.S.C. § 1692k(a)(2)(A).

IT IS SO ORDERED.


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