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Devine v. The Judge Law Firm, ALC

United States District Court, S.D. California

July 21, 2017

SAM DEVINE, Plaintiff,



         Presently before the Court is Defendant Stonecrest Village Master Association's (“Stonecrest”) motion to dismiss Plaintiff Sam Devine's (“Plaintiff”) first amended complaint. (Doc. No. 13-1.) Plaintiff opposes the motion. (Doc. No. 29.) Having reviewed the parties' moving papers and controlling legal authority, and pursuant to Local Civil Rule 7.1.d.1, the Court finds the matter suitable for decision on the papers and without oral argument. For the reasons set forth below, the motion to dismiss is GRANTED IN PART and DENIED IN PART.


         Sometime before November of 2012, Plaintiff allegedly owed financial obligations to Stonecrest for homeowner's association (“HOA”) fees. (Doc. No. 7 ¶ 27.) Subsequently, Plaintiff allegedly fell behind on his HOA payments to Stonecrest. (Id. ¶ 30.) Soon thereafter, Stonecrest retained Defendant the Judge Law Firm, ALC (“JLF”) in order to collect the alleged debt from Plaintiff. (Id. ¶ 32.) On November 9, 2012, a case was filed against Plaintiff in California state court based upon a consumer account that was allegedly in default in the San Diego Superior Court. (Id. ¶ 33.) On January 12, 2015, JLF obtained a default judgment against Plaintiff for a total of $1, 357.39. (Id. ¶ 34.)

         After several attempts to collect the judgment, JLF at the instruction of Stonecrest filed a Memorandum of Costs after Judgment, Acknowledgment of Credit, and Declaration of Accrued Interest, which added an additional $463.50 in cost and $203.05 in interest. (Id. ¶¶ 35-36.) When Plaintiff discovered a levy placed on his bank account stemming from this judgment, he contacted JLF to discuss the alleged debt. (Id. ¶¶ 39-40.) Plaintiff then received an e-mail from a JLF representative on November 2, 2016, that annotated that the debt owed had now elevated to $4, 624.78. (Id. ¶¶ 41-42.) Furthermore, the letter from JLF stated that attorney costs and fees would increase if additional correspondence, demands, or payment plans were requested. (Id. ¶ 43.) Additionally, JLF stated that if payment plans were instituted, a $275.00 fee would be added to the debt as well as an additional $20.00 charge per payment. (Id. ¶ 44.)

         In sum, Plaintiff asserts that once his account was reduced to a judgment, neither JLF nor Stonecrest had the right to collect further attorney fees, collection costs, or payment plan set up fees, without filing a Memorandum of Costs pursuant to California Civil Code of Procedure § 685.070(b). (Id. ¶ 45.) Moreover, Plaintiff contends that JLF's August 8, 2016 demand letter was inflated by $640.00 for attorney's fees and $1, 918.44 in costs. (Id. ¶ 48.)

         Plaintiff filed his complaint with this Court on December 9, 2016. (Doc. No. 1.) Stonecrest and JLF jointly moved to dismiss Plaintiff's complaint on January 10, 2017. (Doc. No. 3.) In response, Plaintiff filed his first amended complaint (“FAC”) on January 25, 2017. (Doc. No. 7.) Plaintiff alleges two claims for relief: (1) violations of the Fair Debt Collection Practices Act (“FDCPA”) against JLF only; and (2) violations of the Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”) against both Stonecrest and JLF. (Id. ¶¶ 62-67.) Stonecrest filed the instant motion, its motion to dismiss the FAC for failure to state a claim on February 22, 2017.[2] (Doc. No. 13.)


         A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of the pleadings and allows a court to dismiss a complaint upon a finding that the plaintiff has failed to state a claim upon which relief may be granted. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). The court may dismiss a complaint as a matter of law for: (1) “lack of a cognizable legal theory, ” or (2) “insufficient facts under a cognizable legal claim.” SmileCare Dental Grp. v. Delta Dental Plan of Cal., 88 F.3d 780, 783 (9th Cir. 1996) (citation omitted). However, a complaint survives a motion to dismiss if it contains “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).

         Notwithstanding this deference, the reviewing court need not accept legal conclusions as true. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is also improper for the court to assume “the [plaintiff] can prove facts that [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). On the other hand, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S. at 679. The court only reviews the contents of the complaint, accepting all factual allegations as true, and drawing all reasonable inferences in favor of the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002).


         I. Plaintiff's Motion to Strike

         As an initial matter, the Court first turns to Plaintiff's contention that Stonecrest has introduced extrinsic statements in its motion to dismiss that must be stricken as improper. (Doc. No. 29 at 12.) In opposition, Stonecrest asserts that Plaintiff has mischaracterized its arguments and that Stonecrest is simply re-describing Plaintiff's own allegations. (Doc. No. 30 at 10.)

         It is without question that a district court may not consider materials beyond the pleadings in ruling on a motion to dismiss. McColgan v. Mut. Of Omaha Ins. Co., 4 F.Supp.3d 1228, 1231 (E.D. Cal. 2014). “The exceptions are material attached to, or relied on by, the complaint so long as the authenticity is not disputed, or matters of public record, provided that they are not subject to reasonable dispute.” Id. (citing Sherman v. Stryker Corp., No. SACV 09-224 JVS (ANx), 2009 WL 2241664, at *2 (C.D. Cal. Mar. 30, 2009). Under Rule 12(f) of the Federal Rules of Civil Procedure, a ...

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