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Sudhir v. PHH Mortgage Corp.

United States District Court, N.D. California

July 24, 2017

VARINDER SUDHIR, Plaintiff,
v.
PHH MORTGAGE CORPORATION and DOES 1-25, inclusive, Defendants.

          ORDER GRANTING LEAVE TO FILE SECOND AMENDED COMPLAINT

          WILLIAM ALSUP UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         In this 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.

         STATEMENT

         The 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.

         On June 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 claim.

         Four 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.

         ANALYSIS

         Defendant 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.

         This 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).

         Plaintiff 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, 231-32 (1998).

         Notwithstanding 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.

         Under 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).

         Defendant 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). ...


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