United States District Court, N.D. California
ORDER RE: SUMMARY JUDGMENT Re: Dkt. Nos. 45,
JACQUELINE SCOTT CORLEY United States Magistrate Judge
case concerns alleged harassing phone calls by Defendant
Portfolio Recovery Associates, LLC (“Defendant”)
to Plaintiffs' home concerning the outstanding debt of
Rosemary Contreras. Plaintiffs allege Defendant made 383
phone calls to Plaintiffs' home and family in violation
of the Fair Debt Collection Practices Act
(“FDCPA”) and the Rosenthal Act. Plaintiffs also
plead California common law claims: intrusion upon seclusion
and negligent training. Now before the Court is
Defendant's motion for summary judgment. Having carefully
reviewed the parties' briefs, evaluated the evidence, and
having had the benefit of oral argument on July 6, 2017, the
Court GRANTS in part and DENIES in part Defendant's
motion for summary judgment.
around 2009 Ms. Contreras decided to cancel her Lane Bryant
credit card by paying the final balance at a Lane Bryant
store. (Dkt. No. 49-3 at 9:7-10, 7:4-9,
10:16-20.) Ms. Contreras believed she owed $170,
but she learned from a Lane Bryant employee that the card
balance was $500. (Id. at 7:10-13, 8:2-5.) In light
of this new information Ms. Contreras decided to make the
minimum payment due at that time, approximately $25.
(Id. at 8:17-21.)
2012, Ms. Contreras began receiving correspondence from
Defendant stating that she owed at least a thousand dollars.
(Id. at 11:7-25, 12:11-14.) Ms. Contreras called
Defendant to inquire about the letters. (Id. at
13:17-21.) Around this time, Defendant was also calling
Plaintiff in an attempt to collect the debt. (Dkt. No.
13:19-21.) During this first call to Defendant, Plaintiff
stated that she had reached out to Lane Bryant and World
Financial to resolve what she believed were inaccuracies with
her bill, but they were not willing to work with her and
informed her that her account had been sold to Defendant.
(Id. at 14:1-4.)
what was either the first or second call to Defendant, Ms.
Contreras stated that she believed Defendant was inflating
how much she owed, and instead offered to pay $200 - the
amount she thought she owed plus interest. (Id. at
15:11-20.) On July 30, 2013, Plaintiff made a third call to
Defendant and was transferred to a supervisor. (Id.
at 17:5-11; Dkt. No. 49-1 at 2:13-14.) Ms. Contreras again
offered to pay $200, however the supervisor instead proposed
that Ms. Contreras immediately pay $700 to settle the debt.
(Dkt. No. 49-3 at 18:3-13.) Ms. Contreras tried to explain
that she didn't owe that much and that should would be
willing to pay the $200 because that amount would likely
satisfy the debt. (Id. at 19:2-5.) The supervisor
replied that if Ms. Contreras did not pay, he would contact
her husband and “I could start garnishing your
husband's wages.” (Id. at 19:12-16.) Ms.
Contreras felt threatened that Defendant was willing to
“dig within [her] marriage” and “get in
between [her] relationship with [her] husband” even
though she was attempting to resolve the debt with Defendant.
(Id. at 19:17-21.)
became a shouting match. (Id. at 20:13-14.) Ms.
Contreras told the supervisor that he was speaking to her in
an unprofessional manner. (Id. at 20:15-16.) She was
appalled by the way the supervisor was speaking to her.
(Id. at 20:17-18.) Ms. Contreras felt like it was
personal, and that the supervisor “made sure that [she]
knew it was personal.” (Id. at 20:20-21.) The
supervisor said that “no matter what [Ms. Contreras]
did to try to resolve, no matter how many phone calls [Ms.
Contreras] makes, how many complaints that [Ms. Contreras]
complained, no matter who [Ms. Contreras] talked to above
him, he'd still be there tomorrow.” (Id.
Contreras then asked Defendant to not send her any more
correspondence, call her home, or call her family.
(Id. at 21:2-5.) Ms. Contreras felt like she had to
defend herself because she felt personally threatened.
(Id. at 21:5-7.) The supervisor continued yelling
that she still owed Defendant money. (Id. at
21:7-8.) The supervisor stated that if Ms. Contreras thought
this is bad now, he was going to make sure she got a lot of
calls from Defendant. (Id. at 22:19-23.) The
supervisor laughed at Ms. Contreras, but did not curse or
call her names. (Id. at 23:6-8, 24:11-25.)
the third conversation with Defendant, Ms. Contreras did not
speak to Defendant when it called--she would either hang up
or say “don't call me” or “don't
call this home.” (Id. at 26:16-19, 27:1.)
Plaintiffs received a total of approximately 383 calls
between October 2012 and January 2015. (Dkt. No. 49-4 at
10:17-24, Id. at 11:2-12:14.) The volume of the
calls became too much for Ms. Contreras to bear. (Dkt. No.
49-3 at 31:15-16.) She would take the “phone off the
receiver and unplug it, hang up, answer, hang up - it was
exhausting.” (Id. at 31:16-19.) Ms. Contreras
felt that the calls were constantly interfering with her home
and her family's time. (Id. at 31:11-12.)
calls were typically every 30 minutes, however on one
particular day the calls occurred with greater frequency at
every 10 minutes. (Id. at 33:6-11.) Ms. Contreras
got so upset she started banging her phone down and broke the
receiver. (Id. at 33:11-13.) Ms. Contreras did it
because she “couldn't get no more phone messages on
there…I didn't want to hear from them, I
didn't want to hear their voice, I didn't want to
hear nothing.” (Id. at 33:13-16.)
383 calls, Ms. Contreras and her husband received calls twice
a day on 91 occasions, three times a day on 11 occasions, and
four times a day on 7 occasions. (Dkt. No. 49-1 at 2:11-13.)
Defendant also called Plaintiffs' children, with 35 calls
to their son, who was a minor at the time, and 16 calls to
their daughter. (Id. at 2:15-17.) Defendant's
last call to Ms. Contreras was on her cell phone in 2015.
(Dkt. No. 49-3 at 28:10-15.)
moves for summary judgment on Plaintiffs' nine FDCPA
claims, Sections 1692(a)(1), 1692d, 1692d(2), 1692d(5),
1692e, 1692e(5), 1692e(10), 1692f, and 1692f(1), and four
provisions of the Rosenthal Act, Sections 1788.10(f),
1788.11(d), 1788.11(e), and 1788.17.
Plaintiffs confirmed at oral argument, they have abandoned
their claims under FDCPA Sections 1692(a)(1), 1692c, 1692e,
and 1692f and Rosenthal Act Section 1788.10(f) and
1788.11(e). (Dkt. No. 49 at 7:22-8:1); accordingly the Court
grants Defendant summary judgment on these claims. Plaintiffs
thus have two remaining FDCPA Section 1692d claims ...