Guillermo Lopez v. Professional Collection Consultants

Filing 22

MINUTES (IN CHAMBERS): ORDER GRANTING Defendant's motion to dismiss 15 by Judge Philip S. Gutierrez: Pending before the Court is Defendant Professional Collection Consultants' ("Defendant") motion to dismiss Plaintiff Guillermo Lopez's ("Plaintiff") complaint. The Court finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. After considering the moving and opposing papers, the Court GRANTS the motion... Defendant& #039;s motion to dismiss the complaint is GRANTED for failure to state a claim under the FDCPA or the Rosenthal Act. Plaintiff is GRANTED leave to amend and file a second amended complaint. Plaintiff has until November 2, 2011 to file a second amended complaint. Failure to do so will result in the case being dismissed with prejudice. (PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS) (lw)

O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#15
CIVIL MINUTES - GENERAL
Case No.

CV 11-3214 PSG (PLAx)

Title

Guillermo Lopez v. Professional Collection Consultants

Present:

Date

October 19, 2011

The Honorable Philip S. Gutierrez, United States District Judge

Wendy K. Hernandez
Deputy Clerk

Not Present
Court Reporter

Attorneys Present for Plaintiff(s):

Attorneys Present for Defendant(s):

Not Present
Proceedings:

n/a
Tape No.

Not Present

(In Chambers) Order GRANTING Defendant’s motion to dismiss

Pending before the Court is Defendant Professional Collection Consultants’
(“Defendant”) motion to dismiss Plaintiff Guillermo Lopez’s (“Plaintiff”) complaint. The Court
finds the matter appropriate for decision without oral argument. See Fed. R. Civ. P. 78; L.R. 715. After considering the moving and opposing papers, the Court GRANTS the motion.
I.

Background

On April 15, 2011, Plaintiff filed a complaint against Defendant for unlawful debt
collection practices. See Dkt. #1. Plaintiff filed his First Amended Complaint (“FAC”) on June
3, 2011. See Dkt. #5. Plaintiff alleges that Defendant began placing collection calls to Plaintiff
in January 2010 for a debt that Defendant claimed was owed to AT&T. FAC ¶¶ 11, 12, 15.
Defendant informed Plaintiff that he had co-signed an AT&T contract with Maria Elena Lopez.
Id. ¶¶ 15, 16. Defendant made “up to three [] collection calls five [] times per week” for some
unidentified period of time. Id. ¶ 12. At some point, Plaintiff stated he did not know Maria
Elena Lopez, has never had a contract with AT&T, did not owe any debt to AT&T, and did not
want to receive any more collection calls. Id. ¶¶ 13, 16. Plaintiff alleges Defendant’s conduct
violated the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692, et seq., and the
Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”), Cal. Civ. Code § 1788, et seq.
Plaintiff asks for statutory damages under both acts, as well as costs and attorney’s fees. FAC ¶¶
20, 21, 25, 26. On August 22, 2011, Defendant moved to dismiss the FAC on the ground that
Plaintiff fails to state a claim upon which relief can be granted under Federal Rule of Civil
Procedure 12(b)(6). See Dkt. #15.
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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#15
CIVIL MINUTES - GENERAL
Case No.

CV 11-3214 PSG (PLAx)

Title

Guillermo Lopez v. Professional Collection Consultants

II.

Date

October 19, 2011

Legal Standard

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to
dismiss a cause of action if the plaintiff fails to state a claim upon which relief can be granted.
See Fed. R. Civ. P. 12(b)(6). In evaluating the sufficiency of a complaint under Rule 12(b)(6),
courts should be mindful that the Federal Rules of Civil Procedure generally require only that
the complaint contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” See Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not
required to survive a Rule 12(b)(6) motion to dismiss, a complaint that “offers ‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555, (2007)). Rather, the complaint must allege sufficient facts to support a
plausible claim to relief. See id.
In evaluating a Rule 12(b)(6) motion, the court must engage in a two-step analysis. See
id. at 1950. First, the court must accept as true all non-conclusory, factual allegations made in
the complaint. See Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 164 (1993). Based upon these allegations, the court must draw all reasonable
inferences in favor of the plaintiff. See Mohamed v. Jeppesen Dataplan, Inc., 579 F.3d 943, 949
(9th Cir. 2009).
Second, after accepting as true all non-conclusory allegations and drawing all reasonable
inferences in favor of the plaintiff, the court must determine whether the compliant alleges a
plausible claim for relief. See Iqbal, 129 S. Ct. at 1950. Despite the liberal pleading standards
of Rule 8, conclusory allegations will not save a complaint from dismissal. See id.
III.

Discussion

In arguing for dismissal under Rule 12(b)(6), Defendant raises two main arguments.
First, Plaintiff has failed to plead any facts that would entitle Plaintiff to relief under the FDCPA
or Rosenthal Act. See Mot. 7:6-18. Second, Plaintiff has failed to plead any facts that would
show his claims are not barred by the one year statute of limitations of the FDCPA and the
Rosenthal Act. Id. 4:5-11.

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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#15
CIVIL MINUTES - GENERAL
Case No.

CV 11-3214 PSG (PLAx)

Date

Title

October 19, 2011

Guillermo Lopez v. Professional Collection Consultants

The sections of the FDCPA that Plaintiff seeks to proceed under forbid creditors seeking
to collect a debt from: engaging in conduct “the natural consequence of which is to harass,
oppress, or abuse,” 15 U.S.C. § 1692d; calling a person “repeatedly or continuously with intent
to annoy, abuse, or harass,” 15 U.S.C. § 1692d(5); falsley representing the “character, amount,
or legal status of any debt,” 15 U.S.C. § 1692e(2)(A); or using “false representation[s] or
deceptive means,” 15 U.S.C. § 1692e(10). The sections of the Rosenthal Act Plaintiff complains
under encompass the same conduct by a creditor, with the additon of forbidding communicating
with a debtor “with such frequency as to be unreasonable.” Cal. Civ. Code § 1788.11(e).
Certain sections of the complaint amount to bare legal conclusions alleging violations of
the statutes, and are to be disregarded for Rule 12(b)(6) consideration. See Twombly, 550 U.S. at
555. The remaining factual allegations can be briefly summarized: (1) Defendant began placing
calls to Plaintiff in January 2010; (2) Defendant placed “up to three [] collection calls five []
times per week” at some unknown period of time; (3) at some point in time, Plaintiff informed
Defendant that Plaintiff did not owe the debt; (4) Defendant continued to call; (5) Defendant
informed Plaintiff he was the co-signer on a contract with Maria Elena Lopez with AT&T as the
counter-party; and (5) at some point in time, Plaintiff informed Defendant that he does not know
a Maria Elena Lopez and has never had any dealings with AT&T. FAC ¶¶ 11-16. Plaintiff
makes no allegations of the specific dates of contact by Defendant, nor even a range of dates.
Plaintiff also makes no allegations as to the character of the calls nor what Defendant said other
than that Plaintiff owed a debt pursuant to Plaintiff’s status as a co-signer of a contract with
AT&T.
To survive a motion to dismiss, a complaint must contain facts that demonstrate “more
than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949. As the
summary of facts shows, Plaintiff has merely raised the possibility that Defendant has violated
the FDCPA and the Rosenthal Act. Defendant’s calls could have been harrassing, but Plaintiff
has pled no facts to show that they were harrassing. There are no facts alleged as to the content
of the calls. And the confusing statement that Defendant made “up to three [] collection calls
five [] times per week” does not state the period of time during which this activity occured, such
that one could conclude the activity was harassing, oppresive, or abusive. Courts have required
factual particularity regarding the dates and contents of alleged communications for FDCPA and
Rosenthal Act claims. See Parker v. Barclays Bank Del., No. CV-10-5096-RMP, 2011 WL
2709407, at *3 (E.D. Wash. July 12, 2011) (complaint failed to state an FDCPA claim where
complaint only alleged repeated calls from creditor); Blaxill v. Arrow Fin. Servs., No. 5:10-CV-

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O
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
#15
CIVIL MINUTES - GENERAL
Case No.

CV 11-3214 PSG (PLAx)

Date

Title

October 19, 2011

Guillermo Lopez v. Professional Collection Consultants

04520 JF (PSG), 2011 WL1299350, at *2 (N.D. Cal. April 4, 2011) (“Because the instant
complaint lacks any factual particularity, such as the dates and contents of the alleged
communications, it fails to state a claim” under the FDCPA); Gates v. Wachovia Mortg., FSB,
No. 2:09-cv-02464-FCD/EFB, 2010 WL 2606511, at *4 (E.D. Cal. June 28, 2010) (dismissing a
Rosenthal claim where complaint alleged date and time of collection calls, but failed to allege
nature of the calls); Ash v. OneWest Bank, FSB, No. 2:09-cv-00974-FCD/DAD, 2010 WL
375744, at *7 (E.D. Cal. Jan. 26, 2010) (holding a high volume of calls does not constitute a
violation of the Rosenthal Act). Plaintiff’s spare factual allegations fail to state a claim under
this standard.
Defendant also argued for dismissal of the complaint, because Plaintiff failed to plead
facts sufficient to establish his claims were not barred by the statute of limitations. Mot. 6:227:6. The Court declines to reach this argument, because the complaint fails on other grounds.
In the event this Court found dismissal of the FAC appropriate, Plaintiff has requested
leave to amend. Opp. 10:18-19. Leave to amend is to be liberally granted, especially where, as
here, it appears the pleading could be cured by the allegation of other facts. See Doe v. United
States, 58 F.3d 494, 497 (9th Cir. 1995) (leave to amend generally granted unless pleading could
not possibly be cured by alleging other facts). Accordingly, the Court grants leave to amend.
IV.

Conclusion

Thus, based on the foregoing, Defendant’s motion to dismiss the complaint is GRANTED
for failure to state a claim under the FDCPA or the Rosenthal Act. Plaintiff is GRANTED leave
to amend and file a second amended complaint. Plaintiff has until November 2, 2011 to file a
second amended complaint. Failure to do so will result in the case being dismissed with
prejudice.

IT IS SO ORDERED.

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