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Riding v. Cach LLC

United States District Court, C.D. California

January 17, 2014

Richard D. Riding, Plaintiff,
v.
Cach LLC and Mandarich Law Group LLP, Defendants

Page 988

For Richard D. Riding, Plaintiff: Crosby Scott Connolly, LEAD ATTORNEY, Hyde and Swigart, San Diego, CA.

For Cach LLC, Defendant: Elizabeth Grace Sutlian, LEAD ATTORNEY, Mandarich Law Group LLP, Woodland Hills, CA; Neil Matthew Sholander, LEAD ATTORNEY, Law Office of Neil M Sholander, Santa Ana, CA; Nicole M Strickler, PRO HAC VICE, Messer and Stilp Ltd, Chicago, IL.

For Mandarich Law Group LLP, Defendant: Neil Matthew Sholander, LEAD ATTORNEY, Law Office of Neil M Sholander, Santa Ana, CA; Nicole M Strickler, PRO HAC VICE, Messer and Stilp Ltd, Chicago, IL.

OPINION

Page 989

ORDER RE: DEFENDANTS CACH LLC AND MANDARICH LAW GROUP LLP'S MOTION TO DISMISS [24]

HONORABLE RONALD S.W. LEW, Senior United States District Judge.

Currently before the Court is Defendant Cach LLC's (" Defendant Cach" ) and Defendant Mandarich Law Group, LLP's (" Defendant Mandarich," collectively, " Defendants" ) Motion to Dismiss [24]. The Court, having reviewed all papers submitted pertaining to this Motion, NOW FINDS AND RULES AS FOLLOWS:

Page 990

The Court GRANTS in part and DENIES in part Defendants' Motion to Dismiss.

I. BACKGROUND

Richard D. Riding (" Plaintiff" ) is a senior citizen whose sole income is social security benefits. First Amended Complaint (" FAC" ) ¶ 17. Sometime before February 4, 2013, Plaintiff allegedly incurred certain personal financial obligations to Wells Fargo bank, N.A. (" Wells Fargo" ). Id. at ¶ 21. Thereafter, Plaintiff allegedly fell behind in the payments owed on the alleged debt. Id. at ¶ 23. Defendant Cach, a debt collector, retained Defendant Mandarich to proceed with legal action against Plaintiff for the collection of Plaintiff's alleged financial obligations. Id. at ¶ 24.

On or about February 4, 2013, Defendant Mandarich sent Plaintiff a letter alleging that Plaintiff owed Defendants $20,706.68. Id. at ¶ ¶ 25-26. Subsequently, but prior to April 11, 2013, Defendants began calling Plaintiff at his home, whereby Defendants would allegedly yell into the telephone, use abusive language, and make accusations that Plaintiff owed Defendants payments on the alleged debt of $20,706.68. Id. at ¶ ¶ 30-31, 35. Pursuant to the instructions of Defendant Cach, Defendant Mandarich, in the name of Cach, filed a state collection case against Plaintiff in the Superior Court of Riverside based on Plaintiff's consumer account that was allegedly in default.[1] Id. at ¶ 36 (" State Court Action" ).

On or about April 15, 2013, Defendants served Plaintiff with a summons and complaint in the State Court Action. On or about April 18, 2013, Plaintiff contacted Defendant Mandarich by telephone and spoke with a representative for Defendant Mandarich, Amanda Wells (" Ms. Wells" ), to whom he explained that he never had a Wells Fargo account. Id. at ¶ 42. Ms. Wells allegedly told Plaintiff that he owed the money, that he had to pay the money to avoid being sued, and that she was going to place a lien on Plaintiff's home if he did not pay the debt. Id. at ¶ ¶ 43-44.

Upon providing Ms. Wells his social security number and date of birth, Ms. Wells allegedly declared that Plaintiff was the incorrect party that Defendants were suing, that he no longer needed to be concerned about the debt, and that Defendants would stop pursuing Plaintiff for the debt in the State Court Action. Id. at ¶ ¶ 46-47. On or about April 29, 2013, Plaintiff again spoke with Ms. Wells, who allegedly confirmed that Plaintiff was not the party that Defendants were suing. Id. at ¶ ¶ 50-53.

However, Defendants continued to pursue the State Court Action against Plaintiff. On June 6, 2013, Defendants mailed a letter to Plaintiff, alleging that Plaintiff owed the debt in question, and that Plaintiff " failed to respond" after Plaintiff was served with the lawsuit. Id. at ¶ ¶ 64-65. However, Plaintiff alleges that Defendants had specifically told him that he did not need to respond, should not respond, and to return the summons and complaint. Id. at ¶ 66.

On June 11, 2013, Defendants filed a request for entry of default judgment against Plaintiff in the amount of $22,996.71 in the State Court Action. Id. at ¶ ¶ 54-55. The state court entered default judgment against Plaintiff on June 18, 2013. Request for Judicial Notice (" RJN" ), Ex. B. Defendants have not dismissed the default. FAC ¶ 69. Based on the above, Plaintiff argues that Defendant has violated the Fair Debt Collection Practices

Page 991

Act (" FDCPA" ), 15 U.S.C. § 1692 et seq. - specifically pointing out violations of § § 1692d, 1692e, and 1692f. Plaintiff seeks actual and statutory damages, costs of litigation and reasonable attorneys' fees [8].

Plaintiff filed the instant Action on July 1, 2013 in the United States District Court for the Southern District of California [1]. Plaintiff filed a FAC on September 3, 2013 [8]. This Action was transferred to the Central District on September 9, 2013 [12]. Defendants filed the instant Motion to Dismiss on October 11, 2013 [24]. This matter was taken under submission on November 26, 2013 [32].

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Rule 12(b)(6)

Federal Rule of Civil Procedure 12(b)(6) allows a party to move for dismissal of one or more claims if the pleading fails to state a claim upon which relief can be granted. Dismissal can be based on a lack of cognizable legal theory or lack of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). However, a party is not required to state the legal basis for its claim, only the facts underlying it. McCalden v. Cal. Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990), cert. denied, 504 U.S. 957, 112 S.Ct. 2306, 119 L.Ed.2d 227 (1992). In a Rule 12(b)(6) motion to dismiss, a court must presume all factual allegations of the complaint to be true and draw all reasonable inferences in favor of the non-moving party. Klarfeld v. United States, 944 F.2d 583, 585 (9th Cir. 1991).

The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of its claim. Bell A. Corp. v. Twombly, 550 U.S. 544, 583, 127 S.Ct. 1955, 167 L.Ed.2d 929 (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 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do." Id. at 555 (internal citation omitted). Although specific facts are not necessary if the complaint gives the defendant fair notice of the claim and the grounds upon which the claim rests, a complaint must nevertheless " contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted).

If dismissed, a court must then decide whether to grant leave to amend. The Ninth Circuit has repeatedly held that a district court should grant leave to amend even if no request to amend the pleadings was made, unless the court determines that the pleading could not possibly be cured by the allegation of other facts. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000). The court has discretion to deny ...


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