United States District Court, N.D. California
ORDER GRANTING LEAVE TO FILE SECOND AMENDED
WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.
action challenging mortgage company's debt collection and
credit reporting practices, plaintiff seeks leave to file a
second amended complaint. For the reasons set forth herein,
the motion is Granted.
background facts of this action are set forth in a previous
order and need not be repeated here (Dkt. No. 27). Pertinent
to the present motion is the amended complaint's
allegation that defendant PHH Mortgage Corporation violated
the Rosenthal Act by calling plaintiff Varinder Sudhir 3, 300
times in calendar year 2015 to demand payment on his loans
even though plaintiff's accounts were current.
2, Matthew Sheldon from the firm Goodwin Procter, LLP, which
replaced Katten Muchin Rosenman, LLP, as defendant's firm
in this action in May, phoned plaintiff's counsel, Mark
Anderson, informing him that the Rosenthal Act did not apply
to the facts of this action because defendant's alleged
collection calls related to business loans, for which the
Rosenthal Act provides no basis of recovery. Attorney Sheldon
asked plaintiff to voluntarily dismiss his Rosenthal Act
days later, Attorney Anderson sent defendant a proposed
stipulation seeking to delete the Rosenthal Act claim and add
a claim for invasion of privacy based on the allegation that
defendant's collection calls interfered with
plaintiff's life and caused him emotional distress.
Defendant refused to so stipulate. Plaintiff then filed this
motion for leave to file a second amended complaint (Dkt. No.
43). While this motion was pending, Attorney Anderson
realized the allegation that defendant called plaintiff 3,
300 times was erroneous and based on a log reflecting the
total number of calls plaintiff received that year.
The parties stipulated that plaintiff will delete that
allegation from the amended complaint if this motion were to
succeed. This order follows full briefing and oral argument.
objects only to plaintiff's motion to the extent it would
add a new California state law claim for invasion of privacy
(Dkt. No. 45 at 1). Plaintiff's motion to delete the
Rosenthal Act is therefore Granted.
order now considers whether to modify the scheduling
order's March 31 deadline to allow plaintiff to plead an
invasion of privacy claim. Where, as here, the district court
files a pretrial scheduling order establishing a deadline for
amendment of pleadings, “the schedule may only be
modified for good cause and with the judge's
consent.” FRCP 16(b)(4). The good cause inquiry
primarily focuses on the diligence of the party seeking
modification. Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992). Moreover, “[t]he
district court is given broad discretion in supervising the
pretrial phase of litigation and its decisions regarding the
preclusive effect of a pretrial order . . . will not be
disturbed unless they evidence a clear abuse of
discretion.” Miller v. Safeco Title Ins. Co.,
758 F.2d 364, 369 (9th Cir. 1985).
brought this motion more than two months after the scheduling
order's March 31 deadline for amendments, seeking to add
a claim for intrusion upon seclusion, which requires (1) an
intentional intrusion into plaintiff's private place,
conversation, or matter, (2) in a manner highly offensive to
a reasonable person. Taus v. Loftus, 40 Cal.4th 683,
725 (2007). To satisfy the first factor, the plaintiff must
have had an objectively reasonable expectation of seclusion
or solitude in the place, conversation or data source.
Shulman v. Group W Prods., Inc., 18 Cal.4th 200,
plaintiff's late request, this motion comes before the
August 31 discovery deadline and the proposed invasion upon
seclusion claim is anchored in pestering conduct so
outrageous that the interests of justice supply the good
cause needed to grant amendment. Specifically, plaintiff
alleges that defendant called him incessantly on his home
phone, which he also uses as his business line, to collect a
debt he did not owe. At oral argument, the undersigned judge
inquired about the actual number of calls, which plaintiff
had mistakenly stated to be 3, 300 in the amended complaint.
Plaintiff's counsel estimated that defendant called
plaintiff two or three times per day, amounting to at least
several hundred calls that year. A reasonable jury could find
defendant's actions to be inhumane and oppressive -
especially under our exceptional facts, where plaintiff was
never in default on his loans, was at most a little late in
providing proof of insurance and, even after supplying the
proof, continued to be bombarded by defendant's dunning
phone calls (Dkt. No. 46 at 2-3). Plaintiff's motion to
amend is therefore Granted.
our exceptional facts, the considerations defendant raises do
not compel a different result. Defendant contends that
plaintiff cannot state a claim for intrusion upon seclusion
because defendant called him on a business line and in
relation to business loans (Dkt. No. 45 at 5). True,
California courts have never addressed whether a reasonable
expectation of personal privacy exists in the context of
calls to collect business loans. But, a reasonable jury could
find plaintiff had an expectation against receiving harassing
collection calls when he was, in fact, current on his
accounts. Plaintiff has therefore set forth enough to show
that amendment is not futile and ultimate resolution of this
issue should await a more complete evidentiary record.
See Contreras v. Portfolio Recovery Assocs., LLC,
No. 15 00104, 2017 WL 2964012, at *5 (N.D. Cal. July 12,
2017) (Judge Jacqueline Scott Corley) (a claim for invasion
of privacy on the basis of incessant collection calls would
benefit from a more complete record).
further argues that it will be prejudiced by plaintiffs late
amendment because it would have to re-depose plaintiff on the
invasion of privacy claim. Plaintiffs proposed claim,
however, is based on allegations of defendant's
harassing, incessant debt collection calls, which also formed
the basis of the mistaken Rosenthal Act claim (Dkt. No. 43 at
2). The undersigned judge has already acknowledged that
where, as here, the basic fact pattern will remain the same
after amendment, the additional cost and effort to defendant
is a marginal argument at best and does not bar leave to
amend. Navarro v. Eskanos & Adler, No. C 06
02231 WHA, 2006 WL 3533039, at *3 (N.D. Cal. Dec. 7, 2006).