Alonso v. Blackstone Financial Group, LLC et al

Filing 62

ORDER requiring parties to be prepared to address issue of emotional distress damages at July 24, 2013 hearing. Order signed by Magistrate Judge Stanley A Boone on 7/23/2013. (Hernandez, M)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 ROSARIO ALONSO, Plaintiff, 9 10 11 12 v. Case No. 1:11-cv-01693-SAB ORDER REQUIRING PARTIES TO BE PREPARED TO ADDRESS ISSUE OF EMOTIONAL DISTRESS DAMAGES AT JULY 24, 2013 HEARING BLACKSTONE FINANCIAL GROUP. LLC, et al., Defendants. 13 14 Plaintiff Rosario Alonso filed this action on October 10, 2011. (ECF No. 1.) The action 15 is currently proceeding on the first amended complaint, filed February 26, 2013, against 16 Defendants Blackstone Financial Group, LLC (“Blackstone”) and Jason Elsen alleging violations 17 of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. and the Rosenthal 18 Fair Debt Collection Act (“RFDCPA”), Cal. Civ. Code §§ 178801788.32. (ECF No. 31.) 19 Defendants Blackstone and Elsen filed separate motions for summary judgment on May 20 20, 2013. (ECF Nos. 43, 44.) Plaintiff filed oppositions to the motions on July 10, 2013. (ECF 21 Nos. 49, 51, 52.) On July 18, 2013, Defendants Blackstone and Elsen filed objections and replies 22 to Plaintiff’s oppositions to their separate motions for summary judgment. (ECF Nos. 54-59.) 23 On July 19, 2013, the parties filed joint statements of undisputed facts. (ECF Nos. 60, 61.) A 24 hearing on Defendants’ motions is set before the Honorable Stanley A. Boone on July 24, 2013, 25 at 9:30 a.m. in Department 9. 26 The parties dispute whether Plaintiff has actual damages in this action. In addition to 27 statutory damages under the FDCPA and RFDCPA, a plaintiff may recover actual damages, 28 including damages for emotional distress, sustained as a result of conduct in violation of the 1 1 statutes. 15 U.S.C. § 1692k(a)(1); Cal. Civ. Code § 1788.17; see Guthrie v. JD Enterprise 2 &Financial Servs., No. 11-cv-911-L(DHB), 2013 WL 2244337, at *3 (S.D. Cal. May 21, 2013). 3 There is a split among district courts in this circuit on whether a plaintiff’s claim for emotional 4 distress damages under the FDCPA should be evaluated using the state law governing the tort of 5 intentional infliction of emotional distress or whether a lower standard should be used. Branco v. 6 Credit Collection Serv. Inc., No. 2:10-cv-01242-FCD-EFB, 2011 WL 3684503, at *10 (E.D. Cal. 7 Aug. 23, 2011). 8 Some courts in this circuit have held that a plaintiff must prove a claim for intentional 9 infliction of emotional distress (“IIED”) under state law in order to collect damages for emotional 10 distress when alleging a claim under the FDCPA. See Costa v. National Action Financial Serv., 11 634 F.Supp.2d 1069, 1078 (E.D. Cal. 2007). Other courts have found that emotional distress 12 damages under the FDCPA can be proven without first having to prove a cause of action under 13 state law. See Riley v. Giguiere, 631 F.Supp.2d 1295 (E.D. Cal. 2009); see also Smith v. Law 14 Offices of Mitchell N. Kay, 124 B.R. 182, 189 (D. Del. 1991) (“Given Congress' intent to 15 establish uniform guidelines for enforcing permissible debt collection practices, it would be 16 counter intuitive to read the FDCPA so that plaintiffs have different rights of recovery in each 17 state.”). 18 In their moving papers, neither party addressed the split that exists in the Ninth Circuit 19 and whether Plaintiff should be required to state a claim for intentional infliction of emotional 20 distress under California law to recover emotional distress damages in this action. 21 22 Accordingly, IT IS HEREBY ORDERED that the parties shall be prepared to address the standard to be applied to Plaintiff’s emotional distress damages at the July 24, 2013 hearing. 23 24 IT IS SO ORDERED. 25 Dated: 26 July 23, 2013 _ _ UNITED STATES MAGISTRATE JUDGE 27 28 2

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