Rodrigo v. Barclays Bank Delaware et al

Filing 13

ORDER granting Defendants' respective motions to dismiss (Doc. Nos. 5 , 7 ). Plaintiffs claims founded upon the theory that the state collection action was untimely, and therefore brought in violation of the FDCPA and Californias Rosenthal Act , are dismissed with prejudice, as to both Defendants. Plaintiffs claims alleging violation of the Rosenthal Act for the procurement, and subsequent filing, of false proof of service is dismissed without prejudice, as to both Defendants. Signed by Judge John A. Houston on 3/27/2017. (jpp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DIANA RODRIGO, Case No.: 16cv808-JAH (JMA) Plaintiff, 12 13 v. 14 ORDER GRANTING DEFENDANTS’ RESPECTIVE MOTIONS TO DISMISS [DOC. NOS. 5, 7] BARCLAYS BANK DELAWARE; and THE MOORE LAW GROUP, a California Professional Corporation, 15 16 Defendants. 17 INTRODUCTION 18 19 Pending before the Court are two motions to dismiss filed, respectively, by 20 Defendants The Moore Law Group (“TMLG”) and Barclays Bank Delaware (“Barclays”), 21 pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Doc. Nos. 5, 7. Both 22 motions have been fully briefed by the parties. See Doc. Nos. 8, 9, 10. After careful 23 consideration of the pleadings, the relevant exhibits submitted by the parties, and for the 24 reasons set forth below, both motions are GRANTED. 25 // 26 // 27 // 28 // 1 16cv808-JAH (JMA) BACKGROUND1 1 2 The instant matter arises from Plaintiff Diana Rodrigo’s (“Rodrigo” or “Plaintiff”) 3 allegation that, on April 8, 2015, Barclays, through its counsel TMLG, “unlawfully and 4 abusively” brought a lawsuit against her to collect a time-barred debt in violation of the 5 Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692 et seq. (the “FDCPA”) and 6 California’s Rosenthal Fair Debt Collection Practices Act, Cal. Civ. Code §§ 1788 et seq. 7 (the “Rosenthal Act”). See Doc. No. 1. Specifically, Plaintiff alleges that TMLG, 8 exclusively, violated the FDCPA, and that TMLG and Barclays, both, violated California’s 9 Rosenthal Act. Id. 10 It is undisputed that “[s]ome time before 2009,” while living in San Diego, 11 California, Rodrigo opened a credit card account with “Juniper Bank and/or Barclays 12 Bank[,]”2 and, that the last payment made by Rodrigo, before defaulting on the subject 13 account, was received “on or about May 2, 2011[.]” See Doc. No. 1 at 4. As a result of 14 Rodrigo’s subsequent delinquencies, Barclays closed her account in January of 2012. Id. 15 16 17 18 19 20 21 22 23 24 25 26 27 1 TMLG asks the Court to take judicial notice of four documents attached to its motion to dismiss as Exhibits 1-4. See Doc. No. 5-2. Exhibits 1-4 are (1) various dockets for Plaintiff’s prior Superior Court case, Barclays Bank Deleware v. Rodrigo, Case No. 372015-00011631-CL-CL-NC (the “state court action”); (2) the Honorable Marilyn L. Huff’s order granting Defendant’s motion to dismiss with leave to amend, filed in Boon v. Professional Collection Consultants, 978 F.Supp.2d 1157 (S.D. Cal., 2013); (3) opposition to Rodrigo’s first motion to vacate filed in the Superior Court Case; and (4) opposition to Rodrigo’s second motion to vacate default filed in the state court action. Id. Because Plaintiff does not object to TMLG’s request for judicial notice, and because Exhibits 1-4 are publicly recorded and publically accessible whose accuracy cannot be reasonably questioned, this Court deems it appropriate to take judicial notice of Exhibits 1-4. See Fed. R. Evid. 201(b); Anderson v. Holder, 673 F.3d 1089, 1094, n.1 (9th Cir. 2012); Caldwell v. Caldwell, 2006 WL 618511, *4 (N.D. Cal., 2006). Plaintiff’s Complaint alleges that Juniper Bank was acquired by Defendant Barclays Bank in late 2004. 2 28 2 16cv808-JAH (JMA) 1 On April 8, 2015, Barclays, through its counsel TMLG, filed a collection action 2 against Rodrigo in California Superior Court, County of San Diego. See Doc. No. 1, Exh. 3 1 (Barclays Bank Deleware v. Rodrigo, Case No. 37-2015-00011631-CL-CL-NC). In the 4 state court action, Barclays sought $5,012.17, plus costs of suit, alleging Common Counts 5 “on an open book account for money due[,]” and “because an account was stated in writing 6 by and between plaintiff and defendant in which it was agreed that defendant was indebted 7 to plaintiff.” See Doc. 1, Exh. 1 at 4. 8 On April 22, 2015, Barclays filed proof of service, indicating that Diana Rodrigo 9 was personally served by the registered service of process agent for TMLG, on April 15, 10 2015, at 7:58 A.M., at 4727 Via Colorado, Oceanside, California 92056. See Doc. No. 1, 11 Exh. 3. The proof of service form includes the following disclosures the service of process 12 agent: (1) a physical description of the individual he served that morning; (2) his 13 declaration that, under the penalty of perjury, all information provided is true and correct; 14 and (3) his signature. Id. 15 On May 29, 2015, entry of default was entered in favor of Barclays. See Doc. No. 16 5-2 at 4. On July 2, 2015, Rodrigo moved to vacate entry of default. Id. Barclays opposed 17 the motion; and, on the same day, Rodrigo’s motion was “rejected” for nonpayment of the 18 requisite appearance fee. Id.; Doc. 1-1 at 32. 19 On July 24, 2015, Rodrigo filed a second motion to vacate entry of default, arguing 20 that she was never personally served with the summons and complaint, and the individual 21 described as accepting service was, allegedly, not her. See Doc. 1, Exh. 6. Although 22 Barclays opposed this motion, the state court granted Rodrigo’s motion, and vacated entry 23 of default without making any findings with respect to the legitimacy of proof of service. 24 See Doc. No. 1, Exh. 7. The case was subsequently scheduled for trial on March 17, 2016; 25 however, on March 16, 2016, Barclays voluntarily dismissed the state court action without 26 prejudice. See Doc. No. 5-2 at 6. 27 On April 4, 2016, Plaintiff filed suit in this Court, alleging that Defendants Barclays 28 and TMLG violated the FDCPA and California Rosenthal Act because (1) Defendants 3 16cv808-JAH (JMA) 1 “knowing[ly], willful[ly], and intentional[ly]” brought the April 2015 state court action 2 despite its untimeliness under Delaware’s three-year statute of limitations (“SOL”), which, 3 according to Plaintiff, governs the SOL analysis in this case; and (2) Defendants 4 “knowing[ly], willful[ly], and intentional[ly]” effectuated allegedly fraudulent service. See 5 generally Doc. No. 1. Ultimately, Plaintiff seeks statutory damages and compensation for 6 “substantial emotional distress” resulting from— 11 1) [Defendants’] time-barred law suit; 2) learning of a false proof of service filed against her and then having to file motions to vacate the improper default entered against her; and 3) having to continue her defense against the [state court] Collection Action because Defendant refused to stipulate to vacate the default and continued to pursue an action that was time barred under applicable Delaware law. 12 See Doc. No. 1 at 12. On May 17, 2016, Defendants filed their respective motions to 13 dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Doc. Nos. 14 5, 7. Plaintiff filed opposition to both motions. See Doc. Nos. 8 (single opposition brief 15 responding to both motions to dismiss). TMLG and Barclays, respectively, filed replies to 16 Plaintiff’s opposition brief. See Doc. Nos. 9, 10. This Court subsequently exercised its 17 discretion to decide the matter on the papers, without oral argument, pursuant to CivLR 18 7.1(d)(1). See Doc. No. 11. 7 8 9 10 19 20 DISCUSSION I. Legal Standard 21 A motion to dismiss under Rule 12(b)(6) tests the sufficiency of the complaint. 22 Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). Dismissal is warranted under Rule 23 12(b)(6) where the complaint lacks a cognizable legal theory. See Robertson v. Dean Witter 24 Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984); Neitzke v. Williams, 490 U.S. 319, 326 25 (1989) (“Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive 26 issue of law”). Alternatively, a complaint may be dismissed where it presents a cognizable 27 legal theory yet fails to plead essential facts under that theory. Robertson, 749 F.2d at 534. 28 While a plaintiff need not give “detailed factual allegations,” he must plead sufficient facts 4 16cv808-JAH (JMA) 1 that, if true, “raise a right to relief above the speculative level.” Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 545 (2007). 3 “To survive a motion to dismiss, a complaint must contain sufficient factual matter, 4 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 5 556 U.S. 662, 677 (2009) (quoting Twombly, 550 U.S. at 547). A claim is facially plausible 6 when the factual allegations permit “the court to draw the reasonable inference that the 7 Defendant is liable for the misconduct alleged.” Id. In other words, “the non-conclusory 8 ‘factual content,’ and reasonable inferences from that content, must be plausibly suggestive 9 of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Service, 572 F.3d 962, 969 10 (9th Cir. 2009). “Determining whether a complaint states a plausible claim for relief will . 11 . . be a context-specific task that requires the reviewing court to draw on its judicial 12 experience and common sense.” Iqbal, 556 U.S. at 663-64. 13 In reviewing a motion to dismiss under Rule 12(b)(6), the court must assume the 14 truth of all factual allegations and must construe all inferences from them in the light most 15 favorable to the nonmoving party. Thompson v. Davis, 295 F.3d 890, 895 (9th Cir. 2002); 16 Cahill v. Liberty Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). However, legal 17 conclusions need not be taken as true merely because they are cast in the form of factual 18 allegations. Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003); Western Mining 19 Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981). When ruling on a motion to dismiss, a 20 court may consider the facts alleged in the complaint, documents attached to the complaint, 21 documents relied upon but not attached to the complaint when authenticity is not contested, 22 and matters of which a court takes judicial notice. Lee v. City of Los Angeles, 250 F.3d 23 668, 688-89 (9th Cir. 2001). If a court determines that a complaint fails to state a claim, 24 the court should grant leave to amend unless it determines that the pleading could not 25 possibly be cured by the allegation of other facts. See Doe v. United States, 58 F.3d 494, 26 497 (9th Cir. 1995). 27 // 28 // 5 16cv808-JAH (JMA) 1 II. Analysis 2 Both Defendants move this Court for orders dismissing the Complaint, contending, 3 respectively, that (1) Plaintiff fails to allege, and cannot allege, that either Defendant 4 violated the FDCPA or California’s Rosenthal Act—i.e., the April, 2015 collection action 5 was commenced within the applicable SOL (thus, no violation), and proof of service was 6 not procured, and subsequently filed, in bad faith (thus, no violation); and (2) both 7 defendants are immune from Rosenthal Act liability pursuant to California’s litigation 8 privilege, Cal. Civ. Code § 47(b).3 See Doc. Nos. 5, 7. 9 A. Federal Debt Collection Practices Act 10 The purpose of the FDCPA is “to eliminate abusive debt collection practices by debt 11 collectors, to insure that those debt collectors who refrain from using abusive debt 12 collection practices are not competitively disadvantaged, and to promote consistent state 13 action to protect consumers against debt collection abuses.” See 15 U.S.C. § 1692(e); see 14 also Heintz v. Jenkins, 514 U.S. 291(1995). Indeed, Congress intended the FDCPA “‘to 15 protect consumers from a host of unfair, harassing, and deceptive debt collection practices 16 without imposing unnecessary restrictions on ethical debt collectors.’” Pressley v. Capital 17 Credit & Collection Service, Inc., 760 F.2d 922, 925 (9th Cir. 1985) (quoting 123 Cong. 18 Rec. 27, 386 (daily ed. Aug 5, 1977)). 19 The Ninth Circuit has recognized that the FDCPA was not meant to prevent 20 information gathering, but to curb debt collectors’ improper contacts with consumer 21 debtors. See Romaine v. Diversified Collection Services, Inc., 155 F.3d 1142, 1149 (9th 22 Cir. 1998). Examples of improper contacts include harassing phone calls, the use of profane 23 24 25 26 27 28 3 Because the Court ultimately finds that the Complaint alleges no underlying FDCPA or Rosenthal Act violation, and therefore fails to state a claim upon which relief can be granted, the Court does not address Defendants’ arguments with respect to Cal. Civ. Code § 47(b). 6 16cv808-JAH (JMA) 1 or obscene language, the use or threat of violence, or publicly disclosing personal consumer 2 information. Id. at 1149 n. 9. 3 Accordingly, to state a cognizable FDCPA claim, a “[p]laintiff must allege facts that 4 establish . . . (1) the plaintiff has been the object of collection activity arising from 5 consumer debt; (2) the defendant attempting to collect debt qualifies as a ‘debt collector’ 6 under the FDCPA; and (3) the defendant has engaged in a prohibited act or has failed to 7 perform a requirement imposed by the FDCPA.” See Amelina v. Mfrs. & Traders Trust 8 Co., 2015 WL 7272224, at *5 (S.D. Cal. Nov. 17, 2015) (citation omitted); see also Pratap 9 v. Wells Fargo Bank, N.A., 63 F. Supp. 3d 1101, 1113 (N.D. Cal. 2014); Gomez v. Wells 10 Fargo Home Morg., 2011 WL 5834949, at *5 (N.D. Cal. Nov. 21, 2011). 11 It is uncontested that the state collection action arose from a consumer debt, and that 12 TMLG qualifies as a debt collector under the FDCPA. Accordingly, with respect to stating 13 a cognizable FDCPA claim against TMLG, only the third prong is at issue—whether 14 TMLG engaged in a prohibited act under the FDCPA. 15 i. Applicable Statute of Limitations 16 TMLG moves to dismiss Plaintiff’s FDCPA claim premised upon filling a time- 17 barred collection action, arguing that, contrary to Plaintiff’s allegation, the collection action 18 was timely. See Doc. No. 5. Specifically, TMLG contends that, pursuant to governmental 19 interest analysis, California law governs the applicable SOL period—not Delaware law— 20 and, under California’s four-year SOL, the collection suit was timely brought. Id. 21 In opposition, Plaintiff argues that Delaware’s three-year SOL governs the period 22 Barclays had to bring suit because the Cardholder Agreement issued to Plaintiff included 23 an unambiguous choice of law provision selecting Delaware law. See Doc. No. 8 at 9, 24- 24 29. Thus, Plaintiff concludes, FDCPA violations clearly occurred because, applying 10 25 Del. § 8106, Barclays, through its agent TMLG, commenced the state collection action 26 more than three years after the cause of action accrued. Id. Alternatively, Plaintiff argues 27 that even if the Court finds that California law applies, the collection action was still time- 28 7 16cv808-JAH (JMA) 1 barred because Barclays’s Money Lent claim, plead as part of its Common Counts cause 2 of action, was not brought within two-years of claim accrual. Id. at 32-33. 3 In reply, TMLG maintains that its motion should be granted because Plaintiff “fail[s] 4 to refute the simple fact that the underlying collection complaint founded on California 5 common counts . . . was timely filed[,] as it was filed within four years of the date of last 6 payment.” See Doc. No. 9 at 2. Furthermore, TMLG contends that “Rodrigo is incorrect in 7 her assertion that Barclay’s [sic] Money Lent claim . . . is limited to a two year statute of 8 limitations under CCP Section 339.” Id. at 7. Specifically, TMLG explains that it is 9 “unaware of any case holding that a claim for Money Lent supported by written monthly 10 statements, is not a Common Count subject to the four-year statute of limitations contained 11 in CCP Section 337. Id. at 7. 12 Construing all inferences in the light most favorable to Plaintiff, the Court finds that 13 the state law collection action brought against Rodrigo on April 8, 2015 was timely, and 14 therefore does not constitute a FDCPA violation. Indeed, federal courts have found 15 statutory debt collectors liable under the FDCPA for attempting to collect time-barred debts 16 via lawsuits. See e.g., McCollough v. Johnson, Rodenberg & Lauinger, 610 F.Supp.2d 17 1247, 1257 (D. Mont. 2009) (holding “a debt collector violates the FDCPA by using the 18 courts to attempt to collect a time-barred debt.”) aff’d in relevant part sub nom. 19 McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011); 20 Martinez v. Albuquerque Collection Servs., Inc., 867 F.Supp. 1495, 1506 (D. N.M. 1994); 21 Kimber v. Fed. Fin. Corp., 668 F.Supp. 1480, 1487 (M.D. Ala. 1987). However, the Court 22 agrees with TMLG that the state court collection action was timely, because the appropriate 23 SOL is determined by California’s choice of law rules, and CCP Section 339. 24 “Under California’s choice of law rules, California will apply its own rule of 25 decision unless a party invokes the law of a foreign state that ‘will further the interest of 26 the foreign state[.]’” Paulsen v. CNF Inc., 559 F.3d 1061, 1080 (9th Cir. 2009) (citing 27 Hurtado v. Superior Court, 11 Cal.3d 574, 581 (1974)). In other words, California courts 28 employ a “governmental interest analysis” to assess whether California law or non-forum 8 16cv808-JAH (JMA) 1 law should apply. Hurtado, 11 Cal.3d at 579-80. “Where the conflict concerns a statute of 2 limitations, the governmental interest approach generally leads California courts to apply 3 California law.” Deutsch v. Turner Corp., 324 F.3d 692, 716 (9th Cir. 2003). 4 It is uncontested that Barclays initiated a suit based on Common Causes of action, 5 in California state court, against a California resident. See Doc. No. 1, Exh. 1. Under these 6 circumstances, the Court concludes that California’s SOL applies, and that the state 7 collection action was not time-barred. A review of the record indicates that TMLG filed 8 the state collection action, on Barclay’s behalf, on April 8, 2015. See Doc. No. 1 at 22. 9 Although the record is unclear as to which day Barclays closed Plaintiff’s delinquent credit 10 card account, it is uncontested that the account was “closed and charged-off” sometime in 11 “January 2012.” See Doc. No. 1 at 4. Thus, the subject account was closed when the 12 collection action commenced. Accordingly, “January 2012,” the date the book account was 13 closed, constitutes the last relevant entry and marks both the date that Barclays’s claim 14 accrued and the date upon which the SOL began to run. R.N.C., Inc. v. Tsegeletos, 231 15 Cal.App.3d 967 (1991). Viewed in the light most favorable to Plaintiff, the Court finds that 16 the SOL began running on January 31, 2012, the last day in January, 2012. 17 The cause of action alleged in the Complaint is Common Counts on an open book 18 account for money due, on an account stated in writing between the parties, for money lent 19 by plaintiff (then, Barclays) to defendant (then, Rodrigo), at defendant’s request. See Doc. 20 No. 1-2 at 2-4. Thus, Plaintiff argues, even under California law, the collection action was 21 time-barred when brought because Barclays’s money lent claim, plead as part of its 22 Common Counts cause of action, was not brought within two-years of claim accrual. See 23 Doc. No. 8 at 32-33. However, this argument overlooks that Cal. C.C.P. § 339’s two-year 24 SOL is inapplicable here because the statute applies to oral contracts not founded upon an 25 instrument of writing. In California, it is well settled that— 26 27 28 [a] mere naked receipt in writing, acknowledging the delivery of money, is not a contract, and does not import a promise, obligation, or liability, and an action upon it is therefore barred by the Statute of Limitations in two years. But a receipt or 9 16cv808-JAH (JMA) 1 2 3 4 acknowledgment in writing for money, which also contains a clause stating that the money received is to be applied to the account of the person from whom received, partakes of the double nature of a receipt and contract, and shows upon its face a liability to account, and an action upon it is not barred by the Statute of Limitations until four years have expired. 5 6 See Cal. C.C.P. § 339 California Code Commission Note 4 (Receipt for Money); accord 7 Ashley v. Vischer, 24 Cal. 332 (1864). It is undisputed that the Cardholder Agreement 8 Plaintiff received, and attached to her Complaint, includes an obligation to repay amounts 9 borrowed from Barclays. See Doc. No. 1, Exh. 2. Therefore, the Court finds Cal. C.C.P. § 10 337’s four-year SOL, applicable to “action[s] upon any contract, obligation or liability 11 founded upon an instrument in writing[,]” governs the timeliness issue in this case. 12 Consequently, Barclays had until January 31, 2016 to timely file the collection action. 13 Because the action was filed before the SOL expired, the Court finds that the claims alleged 14 were timely brought, and that, as a matter of law, commencing the collection action did not 15 violate the FDCPA. Plaintiff’s FDCPA claims founded upon this untimeliness theory are, 16 therefore, DISMISSED WITH PREJUDICE. 17 ii. Fraudulent Service of Process 18 Defendant TMLG contends that Plaintiff’s Complaint fails to state a FDCPA claim 19 based on procurement of service by fraud because (1) the record reflects that proof of 20 service was reliably obtained, relied upon, and filed with the Superior Court in good faith; 21 and, (2) Plaintiff’s Complaint fails to allege plausible facts to the contrary. See Doc. No. 22 5-1 at 12-15. In support, TMLG advances, inter alia, four reasons why Plaintiff’s 23 fraudulent service argument fails, as to it. 24 First, TMLG argues that “there has been no judicial determination in the State Court 25 Action that the proof of service of the summons and complaint in the State Court Action 26 was false, [or] that TMLG filed a false proof of service [] in support of its request for entry 27 of default and in allegedly attempting to obtain a default judgment based on proof of 28 service.” Id. at 12-13. 10 16cv808-JAH (JMA) 1 TMLG continues, arguing second, that Rodrigo’s evidence in support of her first and 2 second motions to vacate entry of default merely show that Rodrigo received mail at more 3 than one address on the date the complaint and summons were served; not that Rodrigo 4 must have been physically absent from the Oceanside address at the time. Id. at 13. 5 6 Third, TMLG argues that the physical description provided by its registered agent for service of process is similar to Plaintiff’s actual description.4 Id. 7 Fourth, TMLG argues that its agent for service of process included a signed 8 declaration attesting to the truth of all information included in the proof of service, 9 including his good faith belief that the individual served was Diane Rodrigo. Id. at 13-14 10 (quoting S.E.C. v. Internet Solutions for Business Inc., 509 F.3d 1161, 1163 (holding that 11 “a signed return of service constitutes prima facie evidence of valid service which can be 12 overcome only by strong and convincing evidence.”) (citations omitted)). 13 In opposition, Plaintiff maintains that its FDCPA claim, against TMLG, is properly 14 pled. See Doc. No. 8 at 13-14. In support, Plaintiff restates that “[a]t a minimum,” her 15 Complaint sufficiently alleges the following FDCPA violations, as to TMLG: 16 15 U.S.C. § 1692d (engaging in behavior, the natural consequences of which was to harass, abuse or oppress) . . . by engaging in protracted litigation for nearly 9 months to collect a time barred credit card debt, beginning with false claims of proof of service, requesting a default based thereon, refusing to vacate it, opposing motions to vacate it, insisting on going to trial causing her defense and only dismissing the day before the scheduled trial date . . . [;] 17 18 19 20 21 22 15 U.S.C. §[§] 1692e (false, deceptive, or misleading statements). . . 1692e(2)(A) (false representation of the character amount or legal status of a debt) . . . [and] 1692e(10) (using false 23 24 25 26 27 28 4 The proof of service description describes the individual served as female, standing 5 feet 7 inches tall, weighing 135 pounds, and appearing of Filipino heritage. Doc. No. 51 at 13. Plaintiff, on the other hand, describes herself as 5 feet 3 inches tall, weighing 150 pounds, with mixed heritage—Spanish, French, Greek, and Mexican. Id. 11 16cv808-JAH (JMA) 1 2 3 4 5 6 7 8 9 10 11 representation to collect or attempt to collect a debt) . . . by filing a complaint on time barred debt, which is a false representation that the debt is enforceable in court, by filing a false proof of service, claiming personal service occurred that never occurred, by requesting a default based thereon, which is a false representation that Barclays Bank was entitled to take a default. . . [;] 15 U.S.C. § 1692f (using unfair or unconscionable means to collect a debt) . . . by prosecuting a suit for time barred debt, initially based on false proof of service, and after being apprised of the claim was time barred refusing to dismiss until the day before the scheduled trial. . . [; and] 15 U.S.C. § 1692f(1) (attempting to collect an amount not permitted by law) . . . by attempting to collect time barred debt. 12 13 Id. at 12-13. In reply, TMLG maintains that “Rodrigo has not and cannot plead in good 14 faith that at the time that the Proof of Service was filed with the Superior Court or even 15 when the Request for Entry of Default was filed with the Superior Court, TMLG had 16 knowledge that there was any question regarding the validity of service of process.” See 17 Doc. No. 9 at 8-9. 18 The Court finds that the Complaint fails to allege plausible facts permitting an 19 inference of bad faith. In other words, the Complaint fails to allege that TMLG procured 20 proof of service in bad faith (so-called “false proof of service”), then, “knowing[ly], 21 willful[ly], and[/or] intentional[ly]” filed such false proof of service, in violation of the 22 FDCPA. See Doc. No. 1 at 2. “[T]he tenet [that] a court must accept as true all of the 23 allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft, 556 24 U.S. at 678. Although legal conclusions can provide the framework of a complaint, they 25 must be supported by factual allegations. Id. at 679. 26 Here, Plaintiff repeatedly concludes that TMLG “fil[ed] a false proof of service of 27 summons in support of the [state court collection] action and attempt[ed] to obtain a default 28 judgment based on that false proof[,]” and, after “being presented with evidence showing 12 16cv808-JAH (JMA) 1 that the proof of service was false[,]” Defendants persisted with their “attempts to obtain a 2 default judgment by resisting Plaintiff’s motion to vacate the default that was entered.” See 3 Doc. No. 1 at ¶¶ 2, 40-43, 48, 67. These conclusions are supported by documents attached 4 to the Complaint, which the Court also considered. Lee, 250 F.3d at 688-89. Therein, 5 Plaintiff provides additional context; including (1) that Plaintiff resided at a different 6 address at the time of service, [doc. no. 1-2 at 24]; (2) that Plaintiff recalls being in Solana 7 Beach up to, and around, the time of service, [id]; (3) that after Plaintiff moved out of the 8 Oceanside property, TMLG sent at least two letters there, addressed to Plaintiff, noticing 9 Barclays’s intent to sue, [id at 38-39]; (4) that Plaintiff first learned about the collection 10 suit from an attorney solicitation received on May 18, 2015, [id at 26]; (5) that Plaintiff’s 11 attorney assisted Plaintiff in obtaining a copy of the proof of service indicating that 12 someone accepted service on her behalf, [id]; and (6) that, on July 10, 2015, Plaintiff’s 13 counsel sent a letter to Barclays’s counsel, Eleecia Barksdale, recounting a July 8, 2015 14 phone call where Barksdale declined to stipulate to vacating entry of judgment “after 15 reviewing the file[,]” [id. at 32]. Taken together, the Court finds that Plaintiff’s bad faith 16 allegations are but legal conclusions cast in the form of factual allegations that the Court 17 need not accept as true, and are otherwise insufficient to state a claim. Ileto, 349 F.3d at 18 1200; Ashcroft, 556 U.S. at 678. The Court is mindful that accidents, inadvertent failures, 19 or even gross negligence does not suffice to demonstrate deliberate indifference or bad 20 faith. Thus, even if the Court found that TMLG, through its registered process server, failed 21 to serve the correct individual, although an error that may evidence negligence, as a matter 22 of law, that finding, on this record, would not support the inference that TMLG acted 23 purposefully to procure proof of service in bad faith, and file an allegedly false proof of 24 service in violation of the FDCPA. Accordingly, Plaintiff’s FDCPA claim founded upon 25 service procured, and proof thereof filed, in bad faith, is DISMISSED WITHOUT 26 PREJUDICE. 27 // 28 // 13 16cv808-JAH (JMA) The Rosenthal Act and California’s Litigation Privilege 1 B. 2 Plaintiff brings supplemental state claims under California’s Rosenthal Act against 3 both Defendants, pleading identical allegations as those supporting her FDCPA claims. See 4 generally Doc. No. 1. Thus, both Defendants move to dismiss Plaintiff’s supplemental 5 claims, contending, inter alia, that the Complaint does not, and cannot, allege violations 6 under the Rosenthal Act. See Doc. Nos. 5, 7. The Court agrees. 7 “The Rosenthal Act mimics or incorporates by reference the FDCPA’s requirements 8 . . . and makes available the FDCPA’s remedies for violations.” Riggs v. Prober & Raphael, 9 681 F.3d 1097, 1100 (9th Cir. 2012) (citing Cal. Civ. Code § 1788.17); see also Robinson 10 v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051, 1060 (C.D. Cal. 2009) 11 (“[A]ny conduct by a debt collector which violates the federal FDCPA necessarily violates 12 the California FDCPA [otherwise known as the Rosenthal Act] as well.”). 13 In light of this Court’s prior findings—that (1) the state court collection action was 14 timely brought; and (2) the Complaint fails to allege that TMLG procured proof of service 15 in bad faith, then, knowingly, willfully, and/or intentionally filed such false proof of 16 service, in violation of the FDCPA—the Court also finds that Plaintiff’s Rosenthal Act 17 claims fail for the same reasons. 18 CONCLUSION AND ORDER 19 For the foregoing reasons, IT IS HEREBY ORDERED that: 20 1. Defendants’ respective motions to dismiss the Complaint for failure to state 21 cognizable claims upon which relief may be granted, [doc. nos. 5, 7], are 22 GRANTED, as follows: 23 a. Plaintiff’s claims founded upon the theory that the state collection 24 action was untimely, and therefore brought in violation of the FDCPA 25 and 26 PREJUDICE, as to both Defendants. 27 Rosenthal Act, are DISMISSED WITH // 28 California’s // 14 16cv808-JAH (JMA) 1 b. Plaintiff’s claims alleging violation of the Rosenthal Act for the 2 procurement, and subsequent filing, of “false” proof of service is 3 DISMISSED WITHOUT PREJUDICE, as to both Defendants. 4 IT IS SO ORDERED. 5 6 7 8 9 DATED: March 27, 2017 _________________________________ JOHN A. HOUSTON United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15 16cv808-JAH (JMA)

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