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Mashiri v. Vital Recovery Services, Inc.

United States District Court, S.D. California

August 27, 2014

VITAL RECOVERY SERVICES, INC., et al., Defendants.



On January 3, 2014, Plaintiff Farid Mashiri filed a nine-count complaint in Superior Court against Defendants Vital Recovery Services Inc. ("Vital Recovery") and JPMorgan Chase Bank, N.A. ("Chase") alleging violations of the Fair Debt Collection Practices Act ("FDCPA"), the Telephone Consumer Protection Act ("TCPA"), the Rosenthal Fair Debt Collection Practices Act, California Civil Code sections 1788, et seq., ("RFDCPA"), and California's Unfair Competition Law, California Business and Professions Code sections 17200, et seq. (ECF No. 1 ("Compl.") at Exh. A.) Chase removed the case to federal district court on January 31, 2014. Chase now moves to dismiss Counts Two and Nine, and Vital Recovery moves to dismiss Count Nine. (ECF Nos. 11, 18.)

The Court finds this motion suitable for determination on the papers submitted and without oral argument. See Civ. L.R. 7.1(d)(1). For the reasons set forth below, this Court GRANTS Chase's Motion to Dismiss with leave to amend and DENIES IN PART AND GRANTS IN PART Vital Recovery's Motion to Dismiss, also with leave to amend.


Plaintiff alleges he obtained two loans on his property: the first with PHH Mortgage; the second, a home equity line of credit with Washington Mutual ("WaMu"). (Compl. at ¶ 13.) As a result of not making his mortgage payments, both of Plaintiff's loans went into default. ( Id. at ¶ 16.) At some point after default, Chase took over the loans from WaMu. ( Id. ) Plaintiff alleges his attorney sent letters, in both June and August of 2009, to WaMu informing it that Plaintiff was represented by an attorney. ( Id. at ¶ 17.) Plaintiff alleges his attorney followed up with a letter dated November 10, 2009 and sent November 12, 2009 to Chase disputing the debt and requesting every document relating to his loan. ( Id. at ¶ 19.) He claims neither entity responded. ( Id. ) The property was foreclosed on around February 2010. ( Id. at ¶ 20.) In addition, Plaintiff alleges that despite "having actual knowledge that Plaintiff [was] represented by counsel, " Chase sent debt collection letters directly to him in October and December 2013. ( Id. at ¶ 30.)

After foreclosure, on October 4, 2012, Vital Recovery contacted Plaintiff by letter and via his cell phone attempting to collect part of the outstanding loan balance. ( Id. at ¶¶ 21, 22.) Plaintiff claims he and his attorney responded in writing on October 29, 2012 and December 20, 2012, telling Vital Recovery that Plaintiff had an attorney, he was disputing the debt, he requested verification of the debt source and amount, and he was requesting Vital Recovery to stop contacting him via cellular telephone. ( Id. at ¶¶ 23, 26.) Nonetheless, Plaintiff alleges Vital Recovery persisted to call his cell phone repeatedly attempting to collect the debt. ( Id. at ¶¶ 25, 29.) These repeated calls resulted in charges to Plaintiff. ( Id. at ¶¶ 29, 70.)

As a result of these "harassing communications, " Plaintiff alleges he incurred actual damages "consisting of mental and emotional distress, nervousness, grief, embarrassment, loss of sleep, anxiety, worry, mortification, shock, humiliation, indignity, pain and suffering, and other injuries." ( Id. at ¶ 35.) Plaintiff also alleges he "incurred out of pocket monetary damages for attorneys' fees and costs incurred for services provided to protect Plaintiff under the RFDCPA and FDCPA." ( Id. at ¶ 36.) Finally, he claims he suffered "additional incidental actual damages including, but not limited to, transportation and gasoline costs to the law firm, telephone call charges, copies, postage, and other damages." ( Id. at ¶ 37.)


A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed.R.Civ.P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court must accept all allegations of material fact pleaded in the complaint as true and must construe them and draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). To avoid a Rule 12(b)(6) dismissal, a complaint need not contain detailed factual allegations, rather, it must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. at 678 (quoting Twombly, 550 U.S. at 557) (internal quotations omitted).

"[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 the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (quoting Papasan v. Allain, 478 U.S. 265, 286 (1986) (alteration in original)). A court need not accept "legal conclusions" as true. Iqbal, 556 U.S. at 678. Despite the deference the court must pay to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the...laws in ways that have not been alleged." Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

Generally, courts may not consider material outside the complaint when ruling on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990); Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (overruled on other grounds by Galbraith v. Cnty of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002)). "However, material which is properly submitted as part of the complaint may be considered." Hal Roach Studios, Inc., 896 F.2d at 1542, n. 19. Documents specifically identified in the complaint whose authenticity is not questioned by the parties may also be considered. Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995) (superseded by statute on other grounds); see also Branch, 14 F.3d at 453-54. Such documents may be considered, so long as they are referenced in the complaint, even if they are not physically attached to the pleading. Branch, 14 F.3d at 453-54; see also Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998) (extending rule to documents upon which the plaintiff's complaint "necessarily relies" but which are not explicitly incorporated in the complaint). Moreover, the court may consider the full text of those documents even when the complaint quotes only selected portions. Fecht, 70 F.3d at 1080 n. 1. Additionally, the court may consider materials which are judicially noticeable. Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994).

As a general rule, a court freely grants leave to amend a complaint which has been dismissed. Fed.R.Civ.P. 15(a); Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393, 1401 (9th Cir. 1986). However, leave to amend may be denied when "the court determines that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency." Schreiber Distrib. Co., 806 F.2d at 1401 (citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th Cir.1962)).

III. ...

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