LARRY ALAN BURNS, District Judge.
Plaintiff Marta De La Torre, proceeding through by counsel, filed her complaint in this case bringing federal and state claims arising out of a state court lawsuit that she claims was an unlawful debt-collection effort, as well as other debt collection efforts. Twice before, the complaint has been dismissed and amended. The Second Amended Complaint ("SAC"), which is now the operative pleading, brings claims under the Fair Debt Collection Practices Act (FDCPA). and California's Rosenthal Fair Debt Collection Practices Act (the Rosenthal Act). Defendant Legal Recovery Law Offices ("LRLO") has moved for summary judgment, and De La Torre has moved for partial summary judgment. The cross motions are fully briefed, and the parties have also filed objections to them.
LRLO sued De La Torre on a debt, the essential validity of which De La Torre does not contest. De La Torre's factual allegations initially pertain to service of process, which she argues was defective. (SAC, ¶¶ 17-31.) The SAC alleges that a process server came to De La Torre's house and, when her 15-year-old son answered the door, left the complaint on the porch. De La Torre's husband then came to the door, found the complaint, and saw the process server get in his car and drive away. She concludes this did not amount to valid service of process under California law. She argues this meant that later statements about valid service of process, and later attempts at litigation violated the FDCPA and Rosenthal Act.
De La Torre's factual allegations then deal with allegedly improper phone calls. She alleges that she told LRLO that she could not pay the debt, and demanded that all calls cease, but LRLO continued calling. She says LRLO failed to identify themselves meaningfully, was verbally abusive, and left voice messages on an answering machine in a way that they could be — and were —heard by third parties. (SAC, ¶¶ 31-41.)
The SAC next turns to allegations concerning the litigation. Although LRLO sued for $3,748.22 plus costs and attorney's fees, it was awarded $3,072.00 plus costs and attorney's fees. Because LRLO recovered $676.22, the SAC contends LRLO sued for more than was actually owed, in violation of the FDCPA. The SAC argues that this decision is res judicata, and that violation of the FDCPA is therefore established as a matter of law. (SAC, ¶¶ 42-46.)
The SAC alleges De La Torre has sought counseling and suffered both mental and physical symptoms as a result of LRLO's improper collection efforts.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). A fact is material if it "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. "Factual disputes that are irrelevant or unnecessary [are] not counted." Id.
The movant has the initial burden of demonstrating that there is no issue of material fact and that summary judgment is proper. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Arpin, 261 F.3d at 919. If that is met, the burden then shifts to the non-movant to show that summary judgment is not appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 324 (1986). To resist summary judgment, the nonmovant must point to more than a "scintilla of evidence," Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995), and cannot rest on mere allegations. Questions of law are decided by the Court rather than the jury, and legal conclusions or legal opinions do not create genuine factual disputes. See MvuInvestors, LLC v. General Elec. Co., 417 Fed. Appx. 696, 698 (9th Cir. 2011) (citations omitted).
In considering the motion, the non-movant's evidence is to be believed and all justifiable inferences are to be drawn in his or her favor. Anderson, 477 U.S. at 255. As the party with the burden of persuasion at trial, De La Torre must establish "beyond controversy every essential element of its . . . claim." S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 888 (9th Cir. 2003) (citation omitted). If a rational trier of fact could find in De La Torre's favor, LRLO's motion will be denied, and if a rational trier of fact could find in LRLO's favor, De La Torre's motion will be denied.
Assertion of new claims through argument in a brief opposing summary judgment is not permitted; if a plaintiff wishes to amend, she must do so in accordance with Fed. R. Civ. P. 15(a). Gilmour v. Gates, McDonald & Co., 382 F.2d 1312, 1315 (11th Cir. 2004).
De La Torre's theory is that because service of process had not legally been effected, LRLO's representations that it had been are actionable. Furthermore, LRLO relied on the effectiveness of service to seek and obtain a default in state court. Under Cal. Civil Code § 1788.15(a), "[n]o debt collector shall collect or attempt to collect a consumer debt by means of judicial proceedings when the debt collector knows that service of process, where essential to jurisdiction over the debtor or his property, has not been legally effected."
LRLO's motion points out that issues pertaining to adequacy of service could have been raised in the state court proceeding but were not, and she is therefore estopped from raising them now. It also points out that once De La Torre made a general appearance in state court, she waived any argument she might have had that service was improper. LRLO also suggests that under the Rooker-Feldman doctrine, the Court lacks jurisdiction even to entertain this claim.
The Court is required to decide jurisdictional questions first, before proceeding to the merits. The Rooker-Feldman doctrine forbids lower federal courts from hearing direct or defacto appeals from state court judgments. Based on the parties' recitation of the record, it appears the state court did not rule on the sufficiency of service. Rather, that issue became moot once De La Torre made a general appearance. Rooker-Feldman prevents this Court from hearing claims allegedly inflicted by the state court's judgment, but does not prevent the Court from considering those inflicted by adverse parties, which the state court failed to rectify. See Noel v. Hall, 341 F.3d 1148, 1164-65 (9th Cir. 2003) (citing GASH Associates v. Village of Rosemont, 995 F.2d 726, 728-29 (7th Cir. 1993)).
Here, De La Torre's claims are mixed. Because her injuries stemmed from the stress and mental anguish she felt, any of LRLO's acts that caused stress or anguish could be the basis for her claim. In part, her she alleges her injuries resulted from LRLO's telling her that she had to appear or face default, and other actions it took during litigation. Quite apart from any court decision, this could have caused her to worry and feel anguish. But in part, she also appears to be complaining about rulings the state court made — in particular, its entry of default against her. To the extent she is complaining about injuries caused by false representations she says LRLO made, Rooker-Feldman does not apply here, although as Noel points out, res judicata may. Noel, 341 F.3d at 1165 (citing Jensen v. Foley, 295 F.3d 745, 747-48 (7
LRLO's estoppel (that is, issue preclusion) argument then comes into play. Certainly De La Torre could have sought to quash service, and had she done so, the state trial court would have had an opportunity to address it. The Court is required to give the same preclusive effect to the state court's judgment as that same court would. See Noel, 341 F.3d at 1160 (citing 28 U.S.C. § 1738 and Kremer v. Chemical Construction Corp., 456 U.S. 461, 466 (1982)).
California recognizes collateral estoppel as one aspect of res judicata. Safeco Insurance Co. v. Tholen 117 Cal.App.3d 685, 696 (Cal. App. 2 Dist. 1981). Ordinarily, issue preclusion requires that the issues in the two proceedings be identical, that the issue have been "actually litigated" and "necessarily decided" in the earlier proceeding, that the earlier decision be final, and that the person to be precluded was either a party or in privity with a party to the earlier proceeding. Castillo v. City of Los Angeles, 92 Cal.App. 4
Looking at the plain language of California courts' holdings on the subject, it does not appear De La Torre would be collaterally estopped, because the question of whether she was properly served was apparently never actually decided. But the analysis does not end there. LRLO cites City of Riverside v. Horspool, 223 Cal.App. 4
While the issue is difficult and this reading may not be correct, De La Torre has not shown why it is wrong. Most of her argument focuses on Rooker-Feldman, and little on estoppel. She principally attacks LRLO's argument and argues Horspool is inapposite. If there is any authority to lend affirmative support to De La Torre's position, she has waived her argument by not citing it. She concedes that Horspool stands for the proposition that waiver of service forfeits the right to bring future challenges to jurisdiction based on improper service, but argues that this is not unpersuasive because Horspool is not a FDCPA case. (Opp'n, 4: 19-27.) This is unpersuasive, because the question here is whether California's courts would give preclusive effects to the earlier judgment. In the absence of any argument or citation to authority to the contrary, the Court concludes they would, and that it must do so as well.
But even if the estoppel question were resolved differently, it would not change the outcome. First, De La Torre's argument that the propriety of service is a factual question for the jury (Opp'n, 5:21) is incorrect. The underlying facts may sometimes present a jury question, but here the key facts are not in dispute. And where the facts are not at issue, the propriety of service is a question of law. See Trackman v. Kenney, 187 Cal. App.
Second, De La Torre's theory that service was improper or ineffective under California law appears to be wrong. Under Cal. Civ. Proc. Code § 415.20(b), service can be effected by delivering the summons and complaint to a defendant's residence and left with someone who is at least eighteen years of age.
In California, laws governing service of process are "liberally construed to effectuate service and uphold jurisdiction if actual notice has been received by the defendant . . . ." Bein v. Brechtel-Jochim Group, Inc., 6 Cal. App.
Leaving the summons and complaint on a doorstep when
Here, De La Torre's son was present at the door when the papers were left. Her husband was in the house, and came to the door shortly after the papers were left, while the process server was driving off, and found them. Technically, it is difficult to say whether this meant the papers were left in her husband's "presence." But, liberally construed as California law requires, it amounted to substantial compliance.
The SAC also argues that the process server incorrectly said service had been made on De La Torre personally, but under California law this is immaterial. See Solomon v. Baker, 2013 WL 1881295 at *4 n.2 (Cal. App. 2 Dist. 2013) (citing Bein v. Brechtel-Jochim Group, Inc., 6 Cal. App.
Accepting De La Torre's evidence as true, LRLO's process server — and therefore LRLO itself — took a risk that service was being made at the wrong household, that her husband would not discover the summons and complaint or that they would be lost, or that she would not receive actual notice of the action against her. See Karnazes, 2013 WL 4080950 at *2. But De La Torre concedes, and the undisputed evidence shows, the papers were delivered to the right residence in the care of her family, that the process server made clear the papers were for her, and she got actual notice of the action against her.
As an initial matter, the Court notes that De La Torre's opposition briefs a claim for continuing to contact her by phone even after learning she was represented by counsel. (Opp'n, 11:8-22 (citing "Moving Papers, Pg. 7)" [sic]).) While the original complaint made such an allegation and based claims on it (Compl., ¶¶ 28, 47(e), 88), the Court ruled this claim was inadequately pled. (Order Dismissing Complaint (Docket no. 30), at 13:28-14:12.) De La Torre then abandoned this claim in her amended complaint, and never raised it in the SAC either. The SAC discusses various other reasons De La Torre told LRLO it should cease calling, but there is no allegation she told them she was represented by counsel. (See SAC, ¶¶ 32-38.) The SAC's sole reference to such a claim is a citation to 16 U.S.C. § 1692c(a)(2), found among a string of citations to various statutes and unsupported by any factual allegations. (See id., ¶ 56.) The only other time it is mentioned is in her declaration, offered in opposition to the motion to dismiss. This is insufficient to resurrect the claim.
De La Torre's allegations that LRLO made numerous and repeated phone calls to her home and cell phone are supported by her declaration, which describes the calls as "continuous and constant," and says up to 60 calls were made to her, including fifteen before LRLO filed suit in state court. (De La Torre Decl., ¶ 5, 7, 8.) Some, she declares, were made in short succession, only a few minutes after an earlier call had ended. (Id., ¶ 9.) If true, this could amount to a violation of the Rosenthal Act, § 1788.11(d) and (e). The evidence on these issues is contested, and a jury might find for either party.
De La Torre alleges several other potentially abusive practices, including LRLO's agents promising to cease calling but then continuing calls (SAC, ¶¶ 37-38 ), and its agents failing to meaningfully identify themselves when calling. (Id. ¶ 35.) LRLO points to evidence that it recorded all outbound calls, and in all cases the callers were identified as being from Legal Recovery Law Offices. (Mot. for Summ. J., 11:5-27 (citing declaration).) In response, De La Torre provides her own declaration that on "some of the phone calls" LRLO placed to her, the callers identified themselves only as "Law Offices" and refused to identify themselves further. This is enough to put these facts in dispute.
As for the promises to stop calling, the Court addressed this issue earlier, in its order dismissing the original complaint, when it held that an unfulfilled promise to stop calling does not amount to a misrepresentation. (Docket no. 30, 15:19-21.) Whether it could be considered abusive in some other way may raise a different question. But the SAC alleges merely that LRLO made one more call, the day after LRLO's agent said a note would be put in her account to cease calls. (SAC, ¶ 37-38.) In that later call, the SAC alleges that an agent of LRLO said there was no note to stop calling, and that the calls would continue. (Id., ¶ 38.) The SAC does not allege that any more calls were made. LRLO explains that the note was in fact in De La Torre's account, that the agent was returning De La Torre's call at her request, and that the agent overlooked the note. (Mot. for Summ. J., 9:12-21 (citing declaration).)
The opposition also points to evidence that LRLO called De La Torre's husband at his place of work. LRLO also points to evidence it did not call him at work, and the parties have briefed the admissibility of this. While this might be relevant to one or more issues, it is important to mention that this is not the basis for any of De La Torre's claims. The Court's order dismissing the original complaint noted that this claim was inadequately pled (Docket no. 30 at 10:1-7), and it was omitted as the basis for a claim in the next two amended complaints. The only mention of LRLO calling De La Torre's husband was in connection with promises LRLO allegedly made to her that they would not call him at work. (SAC, ¶ 37.)
While LRLO presents evidence that its agents were never abusive and never yelled on the phone, De La Torre provides her own declaration that they were abusive, yelled, and put her own hold for long periods of time as a way of punishing her. (De La Torre Decl., ¶ 11.) This is enough to create a genuine dispute of material fact.
The FDCPA requires that debt collectors cease calls if a consumer,
The SAC alleges that LRLO left voice messages on De La Torre's answering machine, even though there was no indication it belonged to her or was used solely by her. The SAC alleges this violated § 1692c, which prohibits communicating to third parties that the consumer owes a debt, because the messages
De La Torre has provided transcripts of the messages, which follow a script. (Docket no. 77-5, 8-15.) De La Torre's own outgoing message says "Hello. We are not available now. Please leave your name and phone number after the beep. We will return your call." The messages from LRLO identify themselves as being for Marta De La Torre only and caution that others should not listen to them, then ask her to call LRLO back. They correctly identify LRLO as the caller, and disclose "This is an attempt to collect a debt, so any information obtained will be used for that purpose."
De La Torre's contention that LRLO did not know it was her answering machine, and did not know whether it was solely used by her are immaterial, because it was in fact her answering machine. LRLO provides evidence the number it called was the number De La Torre provided to her creditor. De La Torre says, without elaboration, that her answering machine is used by other people besides herself and her husband, and that third parties heard the messages. (De La Torre Decl., ¶¶ 26-27.) Although De La Torre declares that the messages say that she was delinquent on a debt, the transcripts show otherwise.
De La Torre cites an FTC settlement, which she says addresses the same issues. But even the terms of the settlement she cites show that the FTC was concerned with situations where a message was made to a wrong phone number or a shared phone number. For example, the terms of the settlement allow voice messages to be left at a phone number where a debt collector has spoken to the consumer at least once before. (Opp'n, 16:16-19 (citing exhibit).)
In its reply, LRLO argues that the FDCPA requires debt collectors communicating with consumers to make the disclosures it did. While this is true, De La Torre cites Foti v. NCO Fin'l Sys., 424 F.Supp.2d 643, 658-59 (S.D.N.Y. 2006) for the principle that debt collectors are not required to leave voice mails at all, and those who do must comply with both § 1692e(11) (requiring disclosure that the communication is an attempt to collect a debt) and § 1692c(b) (forbidding communications to third parties). Foti persuasively points out that the FDCPA's requirements may effectively prevent debt collectors from using some means of communications, and that they may do so even if those are the most economical or efficient means available. This means, in other words, that a debt collector, by choosing a particular method of communication, may risk crossing a line and falling afoul of the FDCPA's regulations. Foti at 659-660 (citing Russell v. Equifax A.R.S., 74 F.3d 30, 35 (2d Cir. 1996)).
De La Torre, for her part, requests partial summary judgment in her favor on this issue. But her evidence is not, by itself, enough to establish liability. Her terse declaration leaves open many possible scenarios in which LRLO would not be liable. For example, the circumstances under which other people could hear her messages are never explained. She might, for example, have played them for others herself, which would make her rather than LRLO the discloser. And the fact that people heard the messages, or part of them, does not show the messages were actually understood. While the claim is rather thinly pleaded and supported, a reasonable jury might find for either party.
The SAC seeks recovery under the FDCPA on the theory that LRLO falsely represented the amount owed. De La Torre has no direct evidence, and can offer none, regarding the actual amount of her debt. Instead, she argues that LRLO is estopped for claiming she owed $3,748.22, because the state court awarded only $3,072.99.
LRLO, on behalf of its client, the creditor, sued De La Torre in state court for the balance of her account, $3,748.22. A transcript from that proceeding (Docket no. 72-8, Trial Tr.) is attached as Ex. 6 to LRLO's motion. At trial, LRLO offered De La Torre's credit card invoice, which showed this to be the amount she owed. (Trial Tr., 21:19-26.) De La Torre testified she had made some payments but had no records and did not remember details of when, how they were made, or how much she paid. (Id., 30:19-32:7.) She testified that by her "best estimate" she had eventually paid everything she owed. (Id. 32:21-33:1.) The court later found she was uncertain how much, if any, she owed. (Id. 37:9-13.)
The court awarded $3,072.99. De La Torre contends this shows that LRLO is estopped from denying that this was the amount actually owed, while LRLO argues that the court's reasoning was simply that $3,072.99 was the amount LRLO had proved De La Torre owed, based on her own validation of the debt. (See Trial Tr. at 34:13-35:15, 37:5-21.)
The problem for De La Torre is that, while LRLO proved by a preponderance of evidence that she owed $3,072.99, there was no finding that she did not owe more. LRLO principally argued that she owed the full $3,748.22, but as a fallback argued that her conduct (making payments on the debt without disputing it) amounted to a ratification of the debt in the amount of $3,072.99. (Trial Tr., 35:1-15.) In other words, LRLO pursued two alternative theories at trial, and made clear it was willing to accept $3,072.99 even though it thought slightly more was owed.
The record is clear that De La Torre was unable to offer any clear or credible evidence at all regarding the amount of the debt, and that she did not prove that she did not owe either of the two amounts sought. The trial court's willingness to accept LRLO's backup position does not suggest that it "necessarily decided" the primary theory was wrong. See Castillo, 92 Cal. App.
Alternatively, LRLO argues that it is entitled to the bona fide error defense embodied in § 1692k(c). This defense is available to a debt collector for unintentional violations resulting from mistakes of fact, despite the maintenance of procedures reasonable adapted to avoid such errors. See Baker v. G. C. Servs. Corp., 677 F.2d 775, 779 (9th Cir. 1982).
Here, undisputed evidence shows LRLO had a client agreement with the creditor, requiring the creditor to provide it with accurate information about valid debts. The creditor provided LRLO with the case file, warranting that the information was accurate. As long as debt collectors' reliance information provided by their creditor clients is reasonable, they need not independently investigate the debt in order to benefit from this defense. See Clark v. Capital Credit & Collection Servs., Inc., 460 F.3d 1162, 1177 (9th Cir. 2006) (citing Smith v. Transworld Sys., Inc., 953 F.2d 1025, 1032 (6th Cir. 1992)) ("[I]f a debt collector reasonably relies on the debt reported by the creditor, the debt collector will not be liable for any errors.")
The Opposition cites other occasions when LRLO told De La Torre even larger amounts were owed (Opp'n, 17:25-18:3), but these are not alleged in the SAC and in any event were not litigated in state court. Because De La Torre has no evidence that these amounts were inaccurate, she could not prevail even if these claims were in the SAC.
For the reasons set forth above, LRLO's motion for summary judgment is
On December 5, 2015, the Court set the final pretrial conference on Tuesday,
