United States District Court, N.D. California, San Francisco Division
ORDER GRANTING MOTION TO DISMISS [Re: ECF No.
BEELER UNITED STATES MAGISTRATE JUDGE
dispute concerns the modification of a residential-mortgage
loan. Plaintiffs Jonathan and Sandryna Hayter sought that
modification from their mortgage lender, defendant PHH
Mortgage Corporation, in 2012. Over the next year, PHH sent
the Hayters letters related to that modification. These
letters told the plaintiffs that, until modification was
complete, their house might still be foreclosed upon. The
plaintiffs now claim that, among other things, these letters
constitute an actionable ''intrusion upon
seclusion." The defendant moves to dismiss that claim
under Federal Rule of Civil Procedure 12(b)(6). (ECF No.
parties have consented to magistrate jurisdiction. (ECF Nos.
4, 9.) This motion can be decided without oral argument.
See Civil L.R. 7-1(b). The defendant‘s
analysis throughout is accurate and persuasive and the court
mostly agrees with it. The court grants the defendant‘s
motion and dismisses the intrusion claim with leave to amend.
plaintiffs own residential property in Brentwood,
California. Their mortgage loan on that property is
held by defendant PHH Mortgage Corporation. In 2012, facing
financial hardship, the plaintiffs applied to PHH for a loan
modification. The plaintiffs claim that, in processing
that request, PHH acted in ways that constitute the tort of
''invasion of privacy by intrusion upon
plaintiffs focus mainly on letters that PHH sent them in
processing their modification request. They argue that these
letters were actionably intrusive mostly because they
''repeatedly and unlawfully threatened to
foreclose" on the plaintiffs‘ home unless the
plaintiffs accepted and began paying under a modified
loan. For example, the plaintiffs allege that in
one such letter PHH wrote: ''Please understand that
all collection/foreclosure activity initiated will continue
until the holder of your mortgage approves your request for a
. . . [modification] and may require the first payment be
received." Another letter allegedly told the
plaintiffs that, ''to suspend foreclosure
proceeding[s], " they had to accept and start paying
under the modified loan‘s ''trial period
plan."With this same letter, the plaintiffs say,
''PHH misrepresented that'suspension of
foreclosure proceedings is not guaranteed . . .
.‘" The plaintiffs do not allege that, apart
from repeatedly ''threaten[ing] foreclosure, "
the letters were in any other way obnoxious. They do not
allege that the defendant called them or visited their home.
They do not allege that the defendant contacted third parties
regarding their loan.
the intrusion-upon-seclusion claim, and in other independent
claims (not involved in this analysis), the plaintiffs
contend that, in handling their modification request, PHH
violated provisions of California‘s Homeowner Bill of
may dismiss a complaint under Federal Rule of Civil Procedure
12(b)(6) when it does not contain enough facts to state a
claim to relief that is plausible on its face. See 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). ''The plausibility standard is
not akin to a'probability requirement, ‘ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully." Id. (quoting
Twombly, 550 U.S. at 557.). ''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 the
elements of a cause of action will not do. Factual
allegations must be enough to raise a right to relief above
the speculative level." Twombly, 550 U.S. at
555 (internal citations and parentheticals omitted).
considering a motion to dismiss, a court must accept all of
the plaintiff's allegations as true and construe them in
the light most favorable to the plaintiff. See id.
at 550; Erickson v. Pardus, 551 U.S. 89, 93-94
(2007); Vasquez v. Los Angeles County, 487 F.3d
1246, 1249 (9th Cir. 2007).
Invasion of Privacy by Intrusion Upon Seclusion
California law, the claim for intrusion upon seclusion
''has two elements: (1) intrusion into a private
place, conversation or matter, (2) in a manner highly
offensive to a reasonable person." Shulman v. Group
W. Prods., Inc. 18 Cal.4th 200, 232 (1998). The first
question is thus ''whether defendants intentionally
intruded, physically or otherwise, upon the seclusion of
another." See Id. (quotation omitted).
''[T]o prove actionable intrusion, the plaintiff must
show the defendant penetrated some zone of physical or
sensory privacy surrounding, or obtained unwanted access to
data about, the plaintiff." Id. The intrusion
must be intentional. E.g., Varnado v. Midland Funding,
LLC, 43 F.Supp.3d 985, 992 (N.D. Cal. 2014). In
determining the ''offensiveness" of a challenged
intrusion, courts consider, among other things, ''the
degree of the intrusion, the context, conduct and
circumstances surrounding the intrusion as well as the
intruder‘s motives and objectives, the setting into
which he intrudes, and the expectations of those whose
privacy is invaded." Deteresa v. Am. Broad.
Cos., 121 F.3d 460, 465 (9th Cir. 1997) (quoting
Hill v. Nat’l Collegiate Athletic Ass’n,
7 Cal.4th 1, 26 (1994). ''The tort is proven only if
the plaintiff had an objectively reasonable expectation of
seclusion or solitude in the place, conversation or data
source." Shulman, 18 Cal.4th at 232;
accord, e.g., Taus v. Loftus, 40 Cal.4th 683, 730
(2007), overruled on other grounds by Oasis W. Realty,
LLC v. Goldman, 51 Cal.4th 811 (2011).