Sandoval v. Kaiser Foundation Health Plan, Inc.

Filing 21

ORDER signed by Judge Garland E. Burrell, Jr on 2/6/15 GRANTING in part and DENYING in part 15 Motion to Dismiss and DENYING Motion for a more definite statement. Plaintiff is granted 10 days to file a Second Amended Complaint. (Manzer, C)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

EASTERN DISTRICT OF CALIFORNIA

8
9

NICASIO SANDOVAL,

10
11
12
13

No. 1:14-CV-1466-GEB-BAM

Plaintiff,
v.

ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT’S
MOTION TO DISMISS THE FIRST
AMENDED COMPLAINT; AND DENYING
MOTION FOR MORE DEFINITE
STATEMENT

KAISER FOUNDATION HEALTH
PLAN, INC.,
Defendant.

14
15
16

Defendant moves under Federal Rule of Civil Procedure

17
18

(“Rule”)

12(b)(6)

for

dismissal

of

Plaintiff’s

First

Amended

19

Complaint (“FAC”) or in the alternative, under Rule 12(e) for a

20

more definite statement.

21

Plaintiff’s FAC is comprised of claims alleged under

22

the Telephone Consumer Protection Act (“TCPA”) and California’s

23

Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”).

24

The FAC contains the following allegations.

25

of 201[4,] Defendant began . . . contacting [him]... regarding an

26

alleged

27

contacted “on at least . . . April 11, 2014, May 5, 2014, May 22,

28

2014, May 25, 2014, and June 8, 2014” without his prior express

outstanding

debt.”

(FAC

1

¶

9,

ECF

“In or around April

No.

18.)

He

was

1

consent; the calls were made using an “automatic dialing system,”

2

were not made for an emergency purpose, and “Plaintiff incur[red]

3

a charge for [the] . . .

calls.” (FAC ¶¶ 11, 12-15.)

4

Defendant seeks dismissal of Plaintiff’s TCPA claim in

5

the FAC, arguing it contains “bare legal conclusions,” making “it

6

virtually impossible. . . to investigate” the claim. (Def.’s Mem.

7

ISO Mot. Dismiss FAC (“Mot.”) 2:28-3:1, 2:19; 3:7, ECF No. 15-1.)

8

The TCPA prescribes it is “unlawful [inter alia] for

9

any person. . . to make any call (other than a call made for

10

emergency purposes or made with the prior express consent of the

11

called party) using any automatic telephone dialing system . . .

12

to any telephone number assigned to . . . any service for which

13

the

14

227(b)(1)(A)(iii).

called

15

party

Defendant
under

is

charged

has

shown

16

implausible

17

Defendant

18

definite statement of this claim.

19

applicable

the

call.”

Plaintiff’s

Plaintiff

should

dismissal

47

TCPA

U.S.C.

§

claim

is

motion is denied.

shown

the

not

for

be

standard.

required

to

give

Nor
a

has
more

Therefore, this portion of the

20

Defendant seeks dismissal of Plaintiff’s Rosenthal Act

21

claims, arguing Plaintiff’s allegations do not provide enough

22

information about the content of the alleged calls to plausibly

23

state a Rosenthal Act claim. (Mot. 4:17-18; 4:4-5.) Plaintiff’s

24

Rosenthal

25

statutes, one of which is a federal statute that the Rosenthal

26

Act incorporates as a violation of California law: 15 U.S.C. §

27

1692(d) and Cal. Civ. Code § 1788.11(e). (FAC ¶ 27).

28

Act

claims

alleges

Defendant

violated

two

separate

15 U.S.C. § 1692(d) prohibits a debt collector from,
2

1

inter alia, “engag[ing] in any conduct the natural consequence of

2

which is to harass, oppress, or abuse any person.” Since “[t]here

3

are no facts alleged as to the content of the calls,” Plaintiff

4

fails to allege a plausible claim under this statute. Lopez v.

5

Prof’l Collection Consultants, No. CV-11-3214 PDG (PLAx), 2011 WL

6

4964886, at *2 (C.D. Cal. Oct. 19, 2011.) Therefore, this claim

7

is dismissed.

8

Further, section 1788.11(e) states in relevant part:

9

“No debt collector shall . . . attempt to collect a consumer debt

10

by . . .

communicating . . . with the debtor with such frequency

11

as

.

12

circumstances.” Plaintiff’s allegations are insufficient to state

13

a plausible claim under this statute.

14

dismissed.

to

.

.

to

constitute

an

harassment

.

.

.

under

the

Therefore, this claim is

15

For the stated reasons, Defendant’s motion to dismiss

16

Plaintiff’s FAC is GRANTED IN PART and DENIED IN PART, and its

17

motion for a more definite statement is DENIED. Plaintiff is

18

granted ten (10) days from the date on which this order is filed

19

to file a Second Amended Complaint addressing the deficiencies in

20

any claim dismissed.

21

Dated:

February 6, 2015

22
23
24
25
26
27
28
3