United States District Court, S.D. California
ORDER: (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS; AND (2) SUA SPONTE
DISMISSING PLAINTIFF'S ROSENTHAL ACT CLAIM AGAINST THE
JUDGE LAW FIRM, ALC (DOC. NO. 13)
ANTHONY J. BATTAGLIA, UNITED STATES DISTRICT JUDGE
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.
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.
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.)
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.)
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. (Doc. No. 13.)
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).
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.
Plaintiff's Motion to Strike
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.)
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 ...