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Davis v. Hollins Law

United States District Court, E.D. California

June 12, 2014


Decided: June 10, 2014.

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For Michael Davis, Plaintiff: Matthew A Rosenthal, LEAD ATTORNEY, Krohn & Moss, Ltd., Los Angeles, CA; Rory Colin Leisinger, LEAD ATTORNEY, Rory C. Leisinger, Los Feliz, CA; Ryan Lee, LEAD ATTORNEY, Krohn and Moss, LTD, Los Angeles, CA.

For Hollins Law, a Professional Corporation, Defendant: Kathleen Mary Kushi Carter, Tamara M. Heathcote, LEAD ATTORNEYS, Hollins, Schechter, Irvine, CA.

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Plaintiff Michael Davis sued defendant Hollins Law, A Professional Corporation, alleging violations of the federal Fair Debt Collection Practices Act, 15 U.S.C. § § 1692 - 1692p (" FDCPA" ) and California's Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code § § 1788 - 1788.33 (" Rosenthal Act" ). The gravamen of plaintiff's complaint was that defendant placed collection calls to his home phone, and left a voicemail message which failed to disclose that the communication was from a debt collector, thereby violating both statutes.

On April 15, 2014, a bench trial was held in this matter, where plaintiff was represented by Matthew Rosenthal, and defendant by Kathleen Hollins and Tamara Heathcote. At the trial's conclusion, the court found that defendant had violated the FDCPA and the Rosenthal Act. The court deferred its ruling on damages, and directed plaintiff to file a petition for attorney's fees. The court will now turn to these issues.


Plaintiff seeks statutory damages of $1000.00 under each of the FDCPA and the Rosenthal Act, for a total of $2000.00.[1]

A. Damages under the FDCPA

1. Standard

The FDCPA provides for statutory damages. " [A]ny debt collector who fails to comply with any [FDCPA] provision . . . with

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respect to any person is liable to such person in an amount equal to the sum of . . . any actual damage sustained by such person as a result of such failure [and] in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000 . . . ." 15 U.S.C. § 1692k(a)(1), (2)(A). The Ninth Circuit has held that courts must award FDCPA statutory damages on proof of violation. " The FDCPA's statutory language makes an award of fees mandatory." Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008) (citing Tolentino v. Friedman, 46 F.3d 645, 651 (7th Cir. 1995), cert. denied, 515 U.S. 1160, 115 S.Ct. 2613, 132 L.Ed.2d 856 (1995)). No proof of actual damages is required to support an award of statutory damages. Baker v. G. C. Services Corp., 677 F.2d 775, 780 (9th Cir. 1982). Plaintiff seeks only statutory damages herein.

In determining the amount of statutory damages, " the court shall consider, among other relevant factors . . . the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional . . . ." 15 U.S.C. § 1692k(b).

2. Analysis

No evidence was introduced to suggest that defendant's violation was anything other than a one-time occurrence. To the extent that the frequency and persistence of noncompliance is a factor, a de minimis award appears appropriate.

Similarly, the nature of the violation -- omitting a required disclosure from a voicemail, itself left only after the parties had already communicated several times -- also does not support a significant award, as the court can discern no harm to plaintiff from the act. Contrast, e.g., Miranda v. Law Office of D. Scott Caruthers, No. 1:10-cv-01487-BAM, 2012 WL 78236 (E.D. Cal. Jan. 10, 2012) (awarding $1000.00 in statutory damages on the basis of a collection letter that read " NOTICE OF PENDING COURT PROCEEDINGS," when in fact no lawsuit was pending.); Bretana v. Int'l Collection Corp., No. C 07-5934 JF (HRL), 2010 WL 1221925 (N.D. Cal. Mar. 24, 2010) (awarding $1000.00 in statutory damages where " [d]efendants sent multiple letters to [plaintiff], citing liability for interest and fees that did not apply, and improperly sued [plaintiff] in a California state court." ).

Finally, while there is nothing in the record to suggest that the violation was intentional, the fact that defendant is a law firm, and that the statutory provision in question is so easily followed,[2] suggests that defendant ought to have exercised a higher degree of diligence in policing its employees.

In light of the foregoing, the court will award plaintiff $250.00 in statutory damages under the FDCPA.

B. Damages under the Rosenthal Act

The Rosenthal Act, like the FDCPA, provides for both actual and statutory damages. But unlike the FDCPA, the Rosenthal Act premises any award of statutory damages on the defendant's state of mind:

Any debt collector who willfully and knowingly violates this title with respect to any debtor shall, in addition to actual damages sustained by the debtor

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as a result of the violation, also be liable to the debtor only in an individual action, and his additional liability therein to that debtor shall be for a penalty in such amount as the court may allow, which shall not be less than one hundred dollars ($100) nor greater than one thousand dollars ($1,000).

Cal. Civ. Code § 1788.30(b). Accord Yu v. Signet Bank/Virginia, 69 Cal.App.4th 1377, 1395-96, 82 Cal.Rptr.2d 304 (1999) (" The [Rosenthal] Act provides for recovery in an individual action of . . . a fine of $100 to $1,000 if the creditor's violation is willful and knowing." ) (citing Cal. Civ. Code § 1788.30(b)).

At trial, plaintiff failed to show, by a preponderance of the evidence, that defendant acted " wilfully and knowingly" in leaving the subject voicemail. Accordingly, plaintiff is not entitled to statutory damages under the Rosenthal Act.


Plaintiff has filed a bill of costs, seeking $2,392.90 in litigation costs. (ECF No. 90.) Under Local Rule 292(b), a bill of costs may only be filed and served " [w]ithin fourteen (14) days after entry of judgment or order under which costs may be claimed . . . ." Defendant is correct in noting that the court reserved its ruling on damages when trial ended. (Response to Petition for Attorney's Fees and Costs (" Response" ) 19-21, ECF No. 96.) The U.S. Supreme Court has " long held that an order resolving liability without addressing a plaintiff's requests for relief is not final." Riley v. Kennedy,553 U.S. 406, 419, 128 S.Ct. 1970, 170 L.Ed.2d 837 (2008). Accord Charles Alan Wright & Arthur R. Miller, 15B Federal Practice and Procedure: ...

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