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Torre v. Legal Recovery Law Office

United States District Court, S.D. California

February 11, 2015



LARRY ALAN BURNS, District Judge.

Plaintiff Marta De La Torre, proceeding through by counsel, filed her complaint in this case bringing federal and state claims arising out of a state court lawsuit that she claims was an unlawful debt-collection effort, as well as other debt collection efforts. Twice before, the complaint has been dismissed and amended. The Second Amended Complaint ("SAC"), which is now the operative pleading, brings claims under the Fair Debt Collection Practices Act (FDCPA). and California's Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act). Defendant Legal Recovery Law Offices ("LRLO") has moved for summary judgment, and De La Torre has moved for partial summary judgment. The cross motions are fully briefed, and the parties have also filed objections to them.


LRLO sued De La Torre on a debt, the essential validity of which De La Torre does not contest. De La Torre's factual allegations initially pertain to service of process, which she argues was defective. (SAC, ¶¶ 17-31.) The SAC alleges that a process server came to De La Torre's house and, when her 15-year-old son answered the door, left the complaint on the porch. De La Torre's husband then came to the door, found the complaint, and saw the process server get in his car and drive away. She concludes this did not amount to valid service of process under California law. She argues this meant that later statements about valid service of process, and later attempts at litigation violated the FDCPA and Rosenthal Act.[1]

De La Torre's factual allegations then deal with allegedly improper phone calls. She alleges that she told LRLO that she could not pay the debt, and demanded that all calls cease, but LRLO continued calling. She says LRLO failed to identify themselves meaningfully, was verbally abusive, and left voice messages on an answering machine in a way that they could be - and were -heard by third parties. (SAC, ¶¶ 31-41.)

The SAC next turns to allegations concerning the litigation. Although LRLO sued for $3, 748.22 plus costs and attorney's fees, it was awarded $3, 072.00 plus costs and attorney's fees. Because LRLO recovered $676.22, the SAC contends LRLO sued for more than was actually owed, in violation of the FDCPA. The SAC argues that this decision is res judicata, and that violation of the FDCPA is therefore established as a matter of law. (SAC, ¶¶ 42-46.)

The SAC alleges De La Torre has sought counseling and suffered both mental and physical symptoms as a result of LRLO's improper collection efforts.

Legal Standards

Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is 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). See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "Factual disputes that are irrelevant or unnecessary [are] not counted." Id.

The movant has the initial burden of demonstrating that there is no issue of material fact and that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Arpin, 261 F.3d at 919. If that is met, the burden then shifts to the non-movant to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 324 (1986). To resist summary judgment, the nonmovant must point to more than a "scintilla of evidence, " Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995), and cannot rest on mere allegations. Questions of law are decided by the Court rather than the jury, and legal conclusions or legal opinions do not create genuine factual disputes. See MvuInvestors, LLC v. General Elec. Co., 417 Fed.Appx. 696, 698 (9th Cir. 2011) (citations omitted).

In considering the motion, the non-movant's evidence is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 U.S. at 255. As the party with the burden of persuasion at trial, De La Torre must establish "beyond controversy every essential element of its... claim." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted). If a rational trier of fact could find in De La Torre's favor, LRLO's motion will be denied, and if a rational trier of fact could find in LRLO's favor, De La Torre's motion will be denied.

Assertion of new claims through argument in a brief opposing summary judgment is not permitted; if a plaintiff wishes to amend, she must do so in accordance with Fed.R.Civ.P. 15(a). Gilmour v. Gates, McDonald & Co., 382 F.2d 1312, 1315 (11th Cir. 2004).

Service of Process

De La Torre's theory is that because service of process had not legally been effected, LRLO's representations that it had been are actionable. Furthermore, LRLO relied on the effectiveness of service to seek and obtain a default in state court. Under Cal. Civil Code § 1788.15(a), "[n]o debt collector shall collect or attempt to collect a consumer debt by means of judicial proceedings when the debt collector knows that service of process, where essential to jurisdiction over the debtor or his property, has not been legally effected."

LRLO's motion points out that issues pertaining to adequacy of service could have been raised in the state court proceeding but were not, and she is therefore estopped from raising them now. It also points out that once De La Torre made a general appearance in state court, she waived any argument she might have had that service was improper. LRLO also suggests that under the Rooker-Feldman doctrine, the Court lacks jurisdiction even to entertain this claim.

The Court is required to decide jurisdictional questions first, before proceeding to the merits. The Rooker-Feldman doctrine forbids lower federal courts from hearing direct or defacto appeals from state court judgments. Based on the parties' recitation of the record, it appears the state court did not rule on the sufficiency of service. Rather, that issue became moot once De La Torre made a general appearance. Rooker-Feldman prevents this Court from hearing claims allegedly inflicted by the state court's judgment, but does not prevent the Court from considering those inflicted by adverse parties, which the state court failed to rectify. See Noel v. Hall, 341 F.3d 1148, 1164-65 (9th Cir. 2003) (citing GASH Associates v. Village of Rosemont, 995 F.2d 726, 728-29 (7th Cir. 1993)).

Here, De La Torre's claims are mixed. Because her injuries stemmed from the stress and mental anguish she felt, any of LRLO's acts that caused stress or anguish could be the basis for her claim. In part, her she alleges her injuries resulted from LRLO's telling her that she had to appear or face default, and other actions it took during litigation. Quite apart from any court decision, this could have caused her to worry and feel anguish. But in part, she also appears to be complaining about rulings the state court made - in particular, its entry of default against her. To the extent she is complaining about injuries caused by false representations she says LRLO made, Rooker-Feldman does not apply here, although as Noel points out, res judicata may. Noel, 341 F.3d at 1165 (citing Jensen ...

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