Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tourgeman v. Nelson & Kennard

California Court of Appeal, Fourth District, First Division

January 16, 2014

David TOURGEMAN, Plaintiff and Appellant,
v.
NELSON & KENNARD et al., Defendants and Respondents.

APPEAL from a judgment of the Superior Court of San Diego County, Luis R. Vargas, Judge. Reversed and remanded with directions. (Super. Ct. No. 37-2012-00097595-CU-BT-CTL)

Page 1448

[Copyrighted Material Omitted]

Page 1449

[Copyrighted Material Omitted]

Page 1450

COUNSEL

Johnson & Weaver, Frank J. Johnson, Van Nuys, and Brett Michael Weaver, San Diego, for Plaintiff and Appellant.

Simmonds & Narita, Tomio Buck Narita and Jeffrey A. Topor, San Francisco, for Defendants and Respondents.

OPINION

AARON, J.

Page 1451

I.

INTRODUCTION

David Tourgeman brought a putative class and representative action against Dell Financial Services, L.P. (Dell Financial Services) [1] and respondents Nelson & Kennard and Robert Kennard. In his complaint, Tourgeman contended that respondents violated the Fair Debt Collections Practices Act (FDCPA) (15 U.S.C. § 1692 et seq.) while attempting to collect a debt that Tourgeman incurred in connection with his purchase of a Dell computer. Tourgeman brought a single claim under the Unfair Competition Law (UCL) ( Bus. & Prof.Code, § 17200) seeking an injunction to prevent respondents from engaging in unlawful, unfair, and/or fraudulent debt collection practices in the future. Respondents filed a special motion to strike pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16).[2]

Tourgeman voluntarily dismissed his action against respondents. After the action was dismissed, respondents filed a motion [166 Cal.Rptr.3d 734] for attorney fees. (Code Civ. Proc., § 425.16, subd. (c)(1).) [3] Tourgeman opposed the motion. In his opposition, Tourgeman conceded that the trial court had jurisdiction to rule on respondents' motion for attorney fees, but argued that the trial court was required to determine whether respondents would have prevailed on their special motion to strike as a prerequisite to awarding them attorney fees under the anti-SLAPP statute. Tourgeman further argued that respondents would not have prevailed on their special motion to strike because the action was exempt from the anti-SLAPP statute, under the public interest exception to the statute (§ 425.17).[4]

Page 1452

The trial court determined that Tourgeman had failed to demonstrate that the public interest exception applied to his lawsuit, and entered an order to this effect. The court awarded attorney fees and costs to respondents in the amount of $11,581.[5] The court later entered judgment in favor of respondents in this same amount.

On appeal, Tourgeman contends that the trial court erred in concluding that his action was not subject to the public interest exception (§ 425.17, subd. (b)) to the anti-SLAPP statute. We conclude that Tourgeman's action satisfied each of the requirements of the public interest exception and that his complaint was therefore not subject to a special motion to strike. The trial court thus erred in awarding respondents attorney fees and costs pursuant to the anti-SLAPP statute. Accordingly, we reverse the judgment and the attorney fees and costs order and remand the matter to the trial court with directions to deny respondents' motion for attorney fees and costs.

II.

FACTUAL AND PROCEDURAL BACKGROUND

A. Tourgeman's complaint

In May 2012, Tourgeman filed a complaint against Dell Financial Services and respondents. In his complaint, Tourgeman alleged that he purchased a Dell computer in November 2001 and that Dell Financial Services had arranged for Tourgeman to obtain a loan from CIT Online Bank. Tourgeman alleged that in January 2007, Nelson & Kennard " generated [ ] a collection letter to [Tourgeman] on a form template" that misidentified the original creditor of Tourgeman's loan. Tourgeman further alleged that Scott Kennard had " spent very little time reviewing this letter, and did not review [Tourgeman's] file or account notes, before signing it." Tourgeman claimed that as a result, Kennard had not been " ‘ meaningfully involved,’ " in connection with the collection of the debt as required by the FDCPA.

[166 Cal.Rptr.3d 735] Tourgeman further alleged that Nelson & Kennard had " sent collection letters to hundreds of consumers that falsely identified the consumer's original creditor." Tourgeman also alleged that Scott Kennard had not conducted any " meaningful review" before signing these letters.

Tourgeman claimed that Nelson & Kennard had filed a lawsuit against him that misidentified the original creditor of Tourgeman's loan, that he had

Page 1453

incurred over $38,000 in legal fees defending the lawsuit, and that Nelson & Kennard had eventually dismissed the lawsuit without prejudice. Tourgeman further alleged that Nelson & Kennard had filed " similar false complaints against dozens of consumers throughout California."

Tourgeman stated that he was bringing the action on behalf of himself and the following classes:

" All consumers who financed a Dell-branded product through Dell Financial Services, Inc. and to whom ... Nelson & Kennard sent, to an address in California, a collection letter that identified the consumer's original creditor as an entity that was different than the entity with which the consumer actually had a loan agreement. [¶] ... [¶]
" All consumers who financed a Dell-branded product through Dell Financial Services, Inc. and against whom Nelson & Kennard filed a California state-court lawsuit that alleged the consumer entered into a written loan agreement with an entity that was not the entity with which the consumer actually had a loan agreement."

Tourgeman alleged a single cause of action against Dell Financial Services and respondents for violation of the UCL on behalf of himself, " members of the [c]lass, and of the general public." Tourgeman claimed that respondents continued to send collection letters and file collection lawsuits without " enact[ing] measures to ensure that they obtain complete and accurate information about consumers before sending out collection letters and/or filing suits."

In his prayer for relief Tourgeman sought:

" An injunction enjoining, preliminarily and permanently, the [respondents] from continuing the unfair, unlawful, and/or fraudulent conduct alleged herein, including an injunction requiring the [respondents] to enact sufficient measures that will include the name of the correct original creditor on any collection letters they send out or in any lawsuits that they file in the future. [¶] ... [¶]
" An injunction enjoining, preliminarily and permanently, [the respondents] from continuing the unfair, unlawful, and/or fraudulent conduct alleged herein, including an injunction requiring [respondents] to enact policies and procedures to ensure that an attorney is ‘ meaningfully involved’ in the attempt to collect debts by, among other things, conducting a sufficient review of the consumer's file before signing a collection letter."

Page 1454

B. Respondents' special motion to strike and motion for attorney fees

In August 2012, respondents filed a special motion to strike pursuant to the anti-SLAPP statute. Tourgeman subsequently dismissed this action against respondents without prejudice. After the dismissal, respondents filed a motion for attorney fees and costs pursuant to the anti-SLAPP statute.

Tourgeman opposed the motion, contending that respondents were not entitled to an award of attorney fees and costs pursuant to the anti-SLAPP statute because they would not have prevailed on their special motion to strike. Specifically, [166 Cal.Rptr.3d 736] Tourgeman argued that the action was exempt from application of the anti-SLAPP statute pursuant to the public interest exception (§ 425.17).

In support of his claim that the action was exempt from the anti-SLAPP statute, Tourgeman emphasized that he had not sought " any monetary damages or restitution for himself," and that the sole remedy that he had sought in his complaint was injunctive relief designed to ensure that California consumers were not harmed by respondents' allegedly unfair, unlawful and fraudulent debt collection practices in the future. Tourgeman further argued that he had not sought any benefit for himself and that instead, he had brought this case " purely for the benefit [of] a large class of Californians who might one day wind up on the receiving end of a collections letter or lawsuit from [respondents] that violates the FDCPA." Tourgeman also argued that his action would benefit the public interest, and that private enforcement was necessary and placed a disproportionate burden on him.

Respondents filed a reply in which they argued that Tourgeman's action did not meet the three requirements of the public interest exception to the anti-SLAPP statute (§ 425.17). With respect to the first prong, i.e., that the plaintiff have sought no greater or different relief than that sought for the general public or class, respondents contended that in a related federal action, " Tourgeman sought relief personal to himself, different from and far greater than the injunctive relief he sought on behalf of the class" in this action. With respect to the second prong, i.e., that the action would enforce an important right affecting the public interest, respondents argued that Tourgeman had " provided argument, but no evidence." Specifically, respondents contended that Tourgeman had failed to present evidence as to how many of its collection letters and lawsuits had misidentified the consumer's original creditor. Finally, with respect to the third prong, i.e., that private enforcement was necessary and placed a ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.