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Contreras v. Portfolio Recovery Associates, LLC

United States District Court, N.D. California

July 12, 2017

GARY CONTRERAS, et al., Plaintiffs,

          ORDER RE: SUMMARY JUDGMENT Re: Dkt. Nos. 45, 48

          JACQUELINE SCOTT CORLEY United States Magistrate Judge

         This 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.


         In 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[1].) 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.)

         In 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.)

         During 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.)

         It 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. at 20:22-21:2.)

         Ms. 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.)

         After 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.)

         The 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.)

         Of the 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.)


         Defendant 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.

         As 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 ...

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