Davis v. Hollins Law

Filing 21

ORDER signed by Judge Lawrence K. Karlton on 3/14/2013 ORDERING that defendant's 6 Motion to Dismiss, and 7 Motion to Strike are DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHAEL DAVIS,

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Plaintiff,
NO. CIV. S-12-3107 LKK/GGH

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v.
HOLLINS LAW, A PROFESSIONAL
CORPORATION,

O R D E R

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Defendant.
/

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Plaintiff

Michael

Davis

sues

defendant

Hollins

Law,

A

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Professional Corporation, alleging violations of the federal Fair

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Debt Collection Practices Act, 15 U.S.C. §§ 1692 - 1692p (“FDCPA”)

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and California’s Rosenthal Fair Debt Collection Practices Act, Cal.

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Civ. Code §§ 1788 - 1788.33 (“Rosenthal Act”).

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Defendant has filed motions to dismiss and/or to strike

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plaintiff’s second cause of action, which is brought under the

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Rosenthal Act. This matter was originally set for hearing on March

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11, 2013. It has been decided on the papers submitted.

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I. ALLEGATIONS & BACKGROUND

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In 1977, Congress enacted the FDCPA to “eliminate abusive debt
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collection practices by debt collectors, to insure that those debt

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collectors who refrain from using abusive debt collection practices

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are not competitively disadvantaged, and to promote consistent

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State action to protect consumers against debt collection abuses.”

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15 U.S.C. § 1692(e). That same year, the California Legislature

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enacted

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engaging in unfair or deceptive acts or practices in the collection

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of consumer debts and to require debtors to act fairly in entering

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into and honoring such debts.” Cal. Civ. Code § 1788.1(b). In 1999,

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the California Legislature substantially amended the Rosenthal Act

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to incorporate many FDCPA provisions by reference, thereby making

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violations of these provisions into Rosenthal Act violations. Cal.

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Civ. Code § 1788.17. While the FDCPA authorizes enforcement action

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by the federal Fair Trade Commission, 15 U.S.C. § 1692l, both

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statutes largely rely on the efforts of private attorneys to

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regulate the debt collection industry.

the

Rosenthal

Act

“to

prohibit

debt

collectors

from

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Plaintiff’s complaint alleges that defendant telephoned and

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left him at least one voicemail in an attempt to collect a debt.

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The challenged voicemail failed to disclose that the communication

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was from a debt collector.

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Plaintiff’s complaint asserts (1) violations of the FDCPA, 15

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U.S.C. §§ 1692e, 1692e(10) and 1692e(11), and (2) by reference, a

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violation

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(Complaint ¶¶ 17, 22, ECF No. 1.)

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of

the

Rosenthal

Act,

Cal.

Civ.

Code

§

1788.17.

Defendant moves to dismiss the Rosenthal Act count under

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2

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Federal Rule of Civil Procedure 12(b)(6)1 for failure to state a

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claim. In the alternative, defendant moves to dismiss the count

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under California’s anti-SLAPP2 law, Cal Code Civ. Proc. § 425.16.

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Defendant also moves to strike this count under Rule 12(f).

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II. STANDARD ON MOTION TO DISMISS UNDER RULE 12(b)(6)

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A

dismissal

motion

under

Rule

12(b)(6)

challenges

a

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complaint’s compliance with federal pleading requirements. Under

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Rule 8(a)(2), a pleading must contain a “short and plain statement

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of the claim showing that the pleader is entitled to relief.” The

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complaint must give the defendant “‘fair notice of what the ...

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claim is and the grounds upon which it rests.’” Bell Atlantic v.

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Twombly, 550 U.S. 544, 555 (2007), quoting Conley v. Gibson, 355

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U.S. 41, 47 (1957).

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To meet this requirement, the complaint must be supported by

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factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

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Moreover, this court “must accept as true all of the factual

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allegations contained in the complaint.” Erickson v. Pardus, 551

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U.S. 89, 94 (2007).3

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“While legal conclusions can provide the framework of a

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Hereinafter, the term “Rule” refers to the applicable
Federal Rule of Civil Procedure.

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Strategic Litigation Against Public Participation

Citing Twombly, 556 U.S. at 555-56, Neitzke v. Williams, 490
U.S. 319, 327 (1989) (“[w]hat Rule 12(b)(6) does not countenance
are dismissals based on a judge’s disbelief of a complaint’s
factual allegations”), and Scheuer v. Rhodes, 416 U.S. 232, 236
(1974) (“it may appear on the face of the pleadings that a recovery
is very remote and unlikely but that is not the test” under
Rule 12(b)(6)).
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complaint,” neither legal conclusions nor conclusory statements are

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themselves sufficient, and such statements are not entitled to a

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presumption of truth. Iqbal, 556 U.S. at 678. Iqbal and Twombly

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therefore prescribe a two-step process for evaluation of motions

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to dismiss. The court first identifies the non-conclusory factual

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allegations, and then determines whether these allegations, taken

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as true and construed in the light most favorable to the plaintiff,

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“plausibly give rise to an entitlement to relief.” Iqbal, 556 U.S.

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at 664.

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“Plausibility,” as it is used in Twombly and Iqbal, does not

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refer to the likelihood that a pleader will succeed in proving the

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allegations. Instead, it refers to whether the non-conclusory

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factual allegations, when assumed to be true, “allow[ ] the court

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to draw the reasonable inference that the defendant is liable for

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the misconduct alleged.” Iqbal, 556 U.S. at 663. “The plausibility

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standard is not akin to a ‘probability requirement,’ but it asks

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for more than a sheer possibility that a defendant has acted

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unlawfully.” Id. (quoting Twombly, 550 U.S. at 557).4 A complaint

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4

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Twombly imposed an apparently-new “plausibility” gloss on
the previously well-known Rule 8(a) standard, and retired the
long-established “no set of facts” standard of Conley v. Gibson,
355 U.S. 41 (1957), although it did not overrule that case
outright. See Moss v. U.S. Secret Service, 572 F.3d 962, 968 (9th
Cir. 2009) (the Twombly court “cautioned that it was not outright
overruling Conley ...,” although it was retiring the “no set of
Facts” language from Conley). The Ninth Circuit has acknowledged
the difficulty of applying the resulting standard, given the
“perplexing” mix of standards the Supreme Court has applied in
recent cases. See Starr v. Baca, 652 F.3d 1202, 1215 (9th
Cir. 2011) (comparing the Court’s application of the “original,
more lenient version of Rule 8(a)” in Swierkiewicz v. Sorema N.A.,
534 U.S. 506 (2002) and Erickson v. Pardus, 551 U.S. 89 (2007) (per
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may fail to show a right to relief either by lacking a cognizable

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legal theory or by lacking sufficient facts alleged under a

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cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901

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F.2d 696, 699 (9th Cir. 1990).

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III. ANALYSIS

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A. Is defendant subject to the Rosenthal Act?

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Defendant argues that it cannot be held liable under the

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Rosenthal Act. I cannot agree.

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According to Cal. Civ. Code § 1788.2(c), the term “debt

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collector” does not include an attorney or counselor at law.

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Defendant

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encompasses law firms, and therefore, that it is outside the ambit

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of the Rosenthal Act.

contends

that

the

phrase

“attorney”

necessarily

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Defendant’s argument is largely based on the California Court

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of Appeals’ opinion in Carney v. Rotkin, Schmerin & McIntyre, 206

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Cal. App. 3d 1513 (1988) (Kennard, J.).5

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Two federal judges in California have relied on Carney to hold

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that the Rosenthal Act does not apply to law firms. See Owings v.

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Hunt & Henriques, No. 08cv1931-L, 2010 WL 3489342, 2010 U.S. Dist.

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LEXIS 91819 (S.D. Cal. Sep. 3, 2010) (Lorenz, J.); Minasyan v.

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curiam), with the seemingly “higher pleading standard” in Dura
Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336 (2005), Twombly and
Iqbal), rehearing en banc denied, 659 F.3d 850 (October 5, 2011).
See also Cook v. Brewer, 637 F.3d 1002, 1004 (9th Cir. 2011)
(applying the “no set of facts” standard to a Section 1983 case).
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Research has failed to uncover any other opinion of the
California courts, published or unpublished, that addresses this
question.
5

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Creditors Financial Group, No. 2:12-cv-01864, 2012 WL 2328242, 2012

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U.S. Dist. LEXIS 85092 (C.D. Cal. Jun. 19, 2012) (Wright, J.);

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Ayvazian v. Moore Law Group, No. 2:12-CV-01506, 2012 WL 2411181,

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2012 U.S. Dist. LEXIS 88556 (C.D. Cal. Jun. 26, 2012) (Wright, J.).

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On the other hand, at least nine federal judges in California

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have held that the Rosenthal Act does apply to law firms. See Abels

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v. JBC Legal Group, P.C., 227 F.R.D. 541, 548 (N.D. Cal. 2005)

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(Ware, J.); Navarro v. Eskanos & Adler, No. 06-02231, 2007 WL

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549904, 2007 U.S. Dist. LEXIS 15046 (N.D. Cal. Feb. 20, 2007)

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(Alsup, J.); Owens v. Brachfeld, No. 07-4400, 2008 WL 3891958, 2008

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U.S. Dist. LEXIS 63701 (N.D. Cal. Aug. 19, 2008) (Fogel, J.);

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Robinson v. Managed Accounts Receivable Corp., 654 F. Supp. 2d 1051

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(C.D. Cal. 2009) (Pregerson, J.); Miranda v. Law Office of D. Scott

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Carruthers, No. 1:10-01487, 2011 WL 2037556, 2011 U.S. Dist. LEXIS

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55180 (E.D. Cal. May 23, 2011) (Wanger, J.); Moriarty v. Henriques,

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No. 1:11-1208, 2011 WL 4769270, 2011 U.S. Dist. LEXIS 90442 (E.D.

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Cal. Oct. 7, 2011) (Thurston, M.J.); Bautista v. Hunt & Henriques,

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No. 11-4010, 2012 WL 160252, 2012 U.S. Dist. LEXIS 5009 (N.D. Cal.

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Jan.

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No. 09-05768, 2010 WL 4593704, 2010 U.S. Dist. LEXIS 121557 (N.D.

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Cal Nov. 4, 2010) (Koh, J.); Reimann v. Brachfeld, No. 10-4156,

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2010 WL 5141858, 2010 U.S. Dist. LEXIS 131727 (N.D. Cal. Dec. 13,

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2010) (Seeborg, J.).

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appears to have considered Carney. Instead, the majority follow the

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reasoning

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[California] legislature specifically excluded attorneys from the

17,

2012)

of

(Spero,

Abels,

M.J.);

Silva

v.

Jason

Head,

PLC,

However, none of these decisions cites or

227

F.R.D.

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at

548,

that

“[s]ince

the

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statute but was silent on law firms . . . the legislature did not

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intend to exclude law firms.”

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In Carney, 206 Cal. App. 3d at 1513, two employees of a debt

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collection

law

firm

(a

secretary

and

an

attorney)

falsely

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represented to plaintiff that a bench warrant had issued for her

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arrest and that the warrant would remain in effect until she paid

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the sum demanded by the law firm. Plaintiff sued the law firm, the

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secretary, the attorney, and the original creditor, alleging causes

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of action for infliction of emotional distress, abuse of process,

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and Rosenthal Act violations. The trial court sustained defendants’

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demurrer and dismissed the complaint in its entirety. The appeals

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court partially reversed the trial court’s order, holding that

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defendant’s conduct was not subject to the litigation privilege

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articulated in Cal. Civ. Code § 47, and that plaintiff had properly

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stated claims for intentional and negligent infliction of emotional

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distress.

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The majority of the Carney opinion deals with the foregoing

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issues. The portion that defendant and the Owings, Minasyan, and

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Ayvazian courts rely upon is brief and worth reproducing in full:

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Plaintiff’s fourth cause of action alleges that, in
telling her “non-payment of her debt would result in her
arrest when in fact such action was not contemplated and
not permitted by law,” defendants violated the Fair Debt
Collection Practices Act, particularly subdivision (e)
of Civil Code section 1788.10. However, the Act applies
only to “debt collectors”; it specifically exempts
attorneys from its coverage. (Civ.Code, § 1788.2, subd.
(c).) Here, the complaint shows on its face that
defendant attorney was not a “debt collector” within the
meaning of the Act. No amendment to the complaint could
establish otherwise. Therefore, the trial court properly
sustained defendants’ demurrer to the fourth cause of

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action without leave to amend.

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Carney, 206 Cal. App. 3d at 1526. In other words, the appeals court

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did not find that the term “attorney” includes law firms, or even

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discuss the issue. Nor can one infer with any certainty that Carney

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implicitly makes such a finding. The opinion does not make clear

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whether the plaintiff brought a Rosenthal Act claim against the

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defendant law firm; it is entirely possible that only the attorney

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was named, and that the use of the plural possessive in the phrase

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“defendants’

demurrer

to

the

fourth

cause

of

action”

merely

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reflects the fact that the defendants collectively demurred to the

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complaint (rather than each defendant individually demurring to the

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claims brought against him, her, or it). As such, Carney is simply

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not persuasive precedent for the proposition that the Rosenthal Act

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exempts law firms from the definition of “debt collector.”

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The court now turns to construction of the statute. “In

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construing a state law, we follow the decisions of the state’s

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highest court. The Erie principles apply equally in the context of

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pendent jurisdiction.” Mangold v. Cal. Pub. Utilities Comm’n, 67

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F.3d 1470, 1478 (9th Cir. 1995) (internal citations and quotations

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omitted). In the Ninth Circuit, a federal court applying state law

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must utilize the tools of statutory interpretation prescribed by

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the relevant state supreme court. See Oregon Advocacy Ctr. v. Mink,

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322 F.3d 1101, 1114 n.7 (9th Cir. 2003) (applying interpretive

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framework announced by Oregon Supreme Court to Oregon statute);

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Nike, Inc. v. McCarthy, 379 F.3d 576, 581 n.4 (9th Cir. 2004)

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(same).
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The California Supreme Court has set forth the following
principles of statutory construction:

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Under settled canons of statutory construction, in
construing a statute we ascertain the Legislature’s
intent in order to effectuate the law’s purpose. We must
look to the statute’s words and give them their usual
and ordinary meaning. The statute’s plain meaning
controls the court’s interpretation unless its words are
ambiguous. If the words in the statute do not, by
themselves, provide a reliable indicator of legislative
intent, statutory ambiguities often may be resolved by
examining the context in which the language appears and
adopting the construction which best serves to harmonize
the statute internally and with related statutes. [...]
If the statute is ambiguous, we may consider a variety
of extrinsic aids, including legislative history, the
statute’s purpose, and public policy.

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People v. Arias, 45 Cal. 4th 169, 177 (2008) (internal citations

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and

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interpretation of a statute, we look to its legislative history and

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background.” Goodman v. Lozano, 47 Cal. 4th 1327, 1332 (2010).

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5
6
7
8
9

15

quotations

omitted).

“To

determine

the

most

reasonable

I turn to the task of construction.
1. Plain meaning6

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17

One difficulty in ascertaining the statute’s plain meaning is

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that the lay dictionaries commonly consulted by this court, such

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as Webster’s (1976 & 2012) and the Oxford English Dictionary

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(2012), do not define the term “law firm.” Black’s Law Dictionary

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(9th Ed. 2010) defines “attorney” as “one who is designated to

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transact business for another; a legal agent,” and “[a] person who

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The California Supreme Court consults both lay and legal
dictionaries in construing the plain meaning of statutes. See,
e.g., In re Ethan C., 54 Cal. 4th 610, 627 (2012) (examining Oxford
English Dictionary and Black’s Law Dictionary to construe the word
“neglect”).
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practices law.” Black’s defines “law firm” as “[a]n association of

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lawyers

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profits, in a business organized traditionally as a partnership but

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often

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limited-liability company.” Id. That is, “attorney” refers to a

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single individual “who practices law,” while “law firm” refers to

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multiple individuals “who practice law together.” Id.

who

practice

today

8

as

law

either

together,

a

usu.

professional

sharing

clients

corporation

or

and

a

2. Statutory context

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This distinction - between the singular noun “attorney” and

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the collective noun “law firm” - is reinforced by examining related

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statutes and regulations. To begin with, the terms “attorney” and

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“lawyer” appear to be largely synonymous under California law.7

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California

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“lawyer” as, among other things, “a member of the State Bar of

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California . . . .” By contrast, Rule of Professional Conduct

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1-100(B)(1) defines “law firm” as:

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Rule

of

Professional

Conduct

1-100(B)(3)

defines

(a) two or more lawyers whose activities constitute the
practice of law, and who share its profits, expenses,
and liabilities; or
(b) a law
lawyer; or

corporation

which

employs

more

than

one

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Cal. Bus. & Prof. Code § 6067 provides that “[e]very person
on his admission [to the practice of law in California] shall take
an oath to support the Constitution of the United States and the
Constitution of the State of California, and faithfully to
discharge the duties of any attorney at law to the best of his
knowledge and ability.” A more specialized statute, Cal. Bus. &
Prof. Code § 6180.14 (addressing cessation of practice of law)
provides that attorney means “a member or former member of the
State Bar.” And according to a leading treatise on California law,
“The title ‘attorney’ is understood to be synonymous with . . .
‘lawyer.’” 7 Cal. Jur. 3d, Attorneys at Law § 1 (2011).
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(c) a division, department, office, or group within a
business entity, which includes more than one lawyer who
performs legal services for the business entity; or

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(d) a publicly funded entity which employs more than one
lawyer to perform legal services.8

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5

Straightforwardly then, “lawyer” and “law firm” mean different

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things: the former is a single individual (“a member”), while the

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latter is a collection of multiple individuals (“two or more

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lawyers,” “more than one lawyer”). This distinction is reinforced

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by definitions of the term “lawyer” in Cal. Bus. & Prof. Code

10

§§

6157

(addressing

legal

advertising)

and

6175

(addressing

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provision of financial services by lawyers). These definitions are

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nearly identical to that in the Rules of Professional Conduct,

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except that they contain the addendum, “includes any agent of the

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lawyer or law firm or law corporation doing business in the state.”

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This addendum further reinforces the notion that “lawyers” and “law

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firms” are distinct concepts.9

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Finally, to imply or presume an exception for “law firms” into

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the statute would run afoul of “the familiar rule of construction,

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8

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21

The California Code does not appear to define the term “law

firm.”
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It also bears mention that many California statutes
distinguish between “attorneys” and “law firms,” further suggesting
that the state legislature does not view the former as encompassing
the latter. See, e.g., Cal. Bus. & Prof. Code § 6450(a)
(“‘Paralegal’ means a person who [inter alia] either contracts with
or is employed by an attorney, law firm, corporation, governmental
agency, or other entity . . .”); Cal. Pub. Cont. Code
§ 10353.5(c)(4) (“‘Contract for legal services’ shall include any
contract between a state agency and any law frm, professional
corporation, law firm partnership, or individual attorney to
perform legal work . . .”).
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1

expressio unius est exclusio alterius, where exceptions to a

2

general rule are specified by statute, other exceptions are not to

3

be implied or presumed.” Wildlife Alive v. Chickering, 18 Cal. 3d

4

190, 195 (1976).

5

To

summarize,

the

terms

“attorney”

and

“law

firm”

have

6

different meanings under relevant provisions of California law,

7

strongly suggesting that the section 1788.2(c) definition of “debt

8

collector” includes law firms.

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3. Legislative history and public policy

10

The

legislative
of

whether

history

of

the

“law

firms”

Rosenthal

11

indication

are

12

Act

included

in

gives
the

no

term

“attorney” under Cal. Civ. Code § 1788(c).

13

But the legislative history of a related statutory provision

14

- Cal. Bus. & Prof. Code § 6077.5 - indicates that the terms are

15

distinct.

16

Rosenthal Act, requires an attorney and “his or her10 employees who

17

are employed primarily to assist in the collection of a consumer

18

debt” to comply with both the Rosenthal Act and certain other

19

enumerated debt collection practices. Violators are subject to

20

discipline by the State Bar of California, rather than by private

21

action. Cal. Bus. & Prof. Code § 6077.5(i). The legislative history

22

of section 6077.5 provides that “[t]he purpose of this bill is to

23

ensure that attorneys comply with fair debt collection practices

24

when

The

latter

collecting

statute,

consumer

enacted

debts.

This

25
26

10

Again, note the singular pronoun.
12

seven

bill

years

is

the

after

result

the

of

1

negotiations between the State Bar and the collection agency

2

industry following an ongoing dispute as to the extent of the

3

attorney exemptions from the [Rosenthal Act.]” California Assembly

4

Office of Research, Concurrence in Senate Amendments (AB 1252

5

(Calderon)), May 3, 1984, at 1. In other words, the Rosenthal Act’s

6

“attorney” exemption does not leave attorneys unregulated; they are

7

instead regulated by the State Bar of California. As there is no

8

similar, alternative regulatory regime for “law firms,” to exempt

9

them would undermine the public policy articulated in Cal. Civ.

10

Code § 1788.1(b): “to prohibit debt collectors from engaging in

11

unfair or deceptive acts or practices in the collection of consumer

12

debts.”

13

4. Conclusion

14

Given the above, the court finds that the “attorney” exemption

15

from the definition of “debt collector” under the Rosenthal Act

16

does not extend to “law firms.”

17

Therefore, to the extent that defendant’s motion to dismiss

18

and motion to strike are premised on the argument that the

19

Rosenthal Act does not apply to law firms, both motions will be

20

denied.

21

What remains is defendant’s argument that its communications

22

with plaintiff constituted protected activity under California’s

23

anti-SLAPP statute, Cal. Code Civ. Proc. § 425.16.

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////

25

////

26

////
13

1

B.

Is

plaintiff’s

Rosenthal

Act

2

subject to

California’s anti-SLAPP law?

3

claim

1. Standard re: anti-SLAPP motion

4

Cal. Code Civ. Proc. § 425.16(b)(1) provides:

5

A cause of action against a person arising from any act
of that person in furtherance of the person’s right of
petition or free speech under the United States or
California Constitution in connection with a public
issue shall be subject to a special motion to strike,
unless the court determines that the plaintiff has
established that there is a probability that the
plaintiff will prevail on the claim.

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7
8
9
10

Under this section, parties “sued in federal courts can bring

11

anti-SLAPP motions to strike state law claims and are entitled to

12

attorneys’ fees and costs when they prevail.” Verizon Del., Inc.

13

v. Covad Communications Co., 377 F.3d 1081, 1091 (9th Cir. 2004).11

14

“A court considering a motion to strike under the anti-SLAPP

15

statute must engage in a two-part inquiry.” Vess v. Ciba-Geigy

16

Corp. USA, 317 F.3d 1097, 1110 (9th Cir. 2003). First, “the

17

defendant is required to make a prima facie showing that the

18

plaintiff’s suit arises from an act by the defendant made in

19

connection with a public issue in furtherance of the defendant’s

20

right

21

Constitution.” Batzel v. Smith, 333 F.3d 1018, 1024 (9th Cir.

to

free

speech

under

the

United

States

or

California

22
11

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24
25
26

The panel in Verizon held that “[p]rocedural state laws are
not used in federal court if to do so would result in a direct
collision with a Federal Rule of Civil Procedure,” and gave as an
example certain discovery-limiting provisions in California’s
anti-SLAPP statute. Id. at 1091 (quoting and citing Metabolife
Int’l, Inc. v. Wornick, 264 F.3d 832, 845-46 (9th Cir. 2001)).
These discovery provisions are not relevant in this case, nor do
there appear to be any other applicable “collision.”
14

1

2003). Second, “[t]he burden then shifts to the plaintiff to

2

establish a reasonable probability that the plaintiff will prevail

3

on his or her . . .claim.” Id. But if defendants fail to meet their

4

initial burden, the court need not reach this step before denying

5

the motion. See Navellier v. Sletten, 29 Cal. 4th 82, 89 (“Only a

6

cause of action that satisfies both prongs of the anti-SLAPP

7

statute — i.e., that arises from protected speech or petitioning

8

and lacks even minimal merit — is a SLAPP, subject to being

9

stricken under the statute”) (emphasis in original).

10

2. Analysis

11

Defendant claims that the voicemail it left for plaintiff (the

12

basis of this lawsuit) was made in connection with anticipated

13

litigation and is therefore protected activity, specifically, an

14

“oral statement . . . made in connection with an issue under

15

consideration or review by a . . . judicial body[.]” Cal. Code Civ.

16

Proc § 425.16(e)(2).

17

“California courts rightly have rejected the notion that a

18

lawsuit is adequately shown to be one ‘arising from’ an act in

19

furtherance of the rights of petition or free speech as long as

20

suit

21

act . . . .” City of Cotati v. Cashman, 29 Cal. 4th 69, 77 (2002).

22

A challenged communication is deemed to have been made “in

23

connection with” a lawsuit only if the suit was “under serious

24

consideration” at the time the communication was made. See A.F.

25

Brown Elec. Contractor, Inc. v. Rhino Elec. Supply, Inc., 137 Cal.

26

App. 4th 1118, 1128 (2006) (even the “threat of potential legal

was

brought

after

the

defendant

15

engaged

in

such

an

1

action [in a challenged communication] is insufficient . . . to

2

demonstrate a lawsuit was under serious consideration”); Welker v.

3

Horwitz, 626 F. Supp. 2d 1068, 1073 (2009) (“Defendant relies on

4

the bald assertion it sent the [challenged] letter ‘in the course

5

of litigation,’ but fails to submit evidence litigation was under

6

serious consideration”).

7

Defendant argues that it left the voicemail “in a good faith

8

effort

to

collect

payment

on

a

debt

owed.

The

challenged

9

communication was made in anticipation of filing a collection

10

action.” (Defendant’s Memorandum of Points & Authorities in Support

11

of Motion to Dismiss (“Mot. To Dismiss”) 7:11-15, ECF No. 6.) In

12

support, defendant’s attorney Asal N. Shiraz has submitted a

13

declaration in which she avers that her firm, “as part of its debt

14

collection efforts, files civil actions on an ordinary basis,

15

subsequent to failed attempts to collect debts. My firm attempts

16

to collect debts by sending letters and email and making phone

17

calls to a debtor prior to filing such civil actions.” (Dec. Shiraz

18

9:9-13, ECF No. 6.) But neither the points & authorities nor the

19

supporting declaration provide any details about when such an

20

action was to be filed, or what event(s), if any, might trigger its

21

filing.

22

The challenged voicemail was left in August 2012. (Plaintiff’s

23

Declaration in Support of Opposition to Motion to Dismiss ¶ 2, ECF

24

No. 10-1.) As of February 19, 2013, no collection action had been

25

filed against plaintiff. (Id. ¶ 6.)

26

Defendant has simply failed to show that litigation against
16

1

plaintiff

2

telephoned him. Therefore, defendant fails to “satisf[y] the

3

initial statutory requirement that to constitute a SLAPP the cause

4

of

5

furtherance of free speech or petitioning rights.” Navellier, 29

6

Cal. 4th at 89.

7

was

action

“under

must

arise

serious

from

consideration”

the

defendant’s

at

the

activity

time

in

it

the

Accordingly, the court will deny defendant’s motion to dismiss

8

under the anti-SLAPP law.12

9

IV. CONCLUSION

10

The court hereby orders that defendant’s motion to dismiss and

11

motion to strike are DENIED.

12

IT IS SO ORDERED.

13

DATED:

March 14, 2013.

14
15
16
17
18
19
20
21
22
23
24
25
26

12

In reaching this conclusion, the court is also guided by
decisions holding that communications alleged to violate the
Rosenthal Act are not subject to the litigation privilege. See,
e.g., Komarova v. Nat’l Credit Acceptance, 175 Cal. App. 4th 324,
340 (2009) (“We must nonetheless be mindful of the ease with which
the [Rosenthal Act] could be circumvented if the litigation
privilege applied. In that event, unfair debt collection practices
could be immunized merely by filing suit on the debt.”); Welker,
699 F. Supp. 2d 1164, 1174 (2010) (“[I]f the Court were to apply
the litigation privilege to protect defendant’s improper dunning
letter, that decision would in effect render the Rosenthal Act
inoperable”). These opinions are persuasive in light of precedents
holding that the provisions of the anti-SLAPP law which address
communications before, or in connection with, a judicial proceeding
are co-extensive with the litigation privilege. See, e.g., Ruiz v.
Harbor View Cmty. Assn., 134 Cal. App. 4th 1456, 1467, fn. 3
(2005); A.F. Brown, 137 Cal. App. 4th at 1125-26.
17