Alonso v. Blackstone Fin. Grp. LLC, Case No. 1:11–cv–01693–SAB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
Writing for the CourtSTANLEY A. BOONE
Citation962 F.Supp.2d 1188
PartiesRosario ALONSO, Plaintiff, v. BLACKSTONE FINANCIAL GROUP LLC, et al., Defendants.
Docket NumberCase No. 1:11–cv–01693–SAB.
Decision Date02 August 2013

962 F.Supp.2d 1188

Rosario ALONSO, Plaintiff,
v.
BLACKSTONE FINANCIAL GROUP LLC, et al., Defendants.

Case No. 1:11–cv–01693–SAB.

United States District Court,
E.D. California.

Aug. 2, 2013.


[962 F.Supp.2d 1190]


Francis John Gist, III, F. John Gist Law Offices, William M. Krieg, Kemnizter, Barron & Krieg, LLP, Fresno, CA, for Plaintiff.

Michael I. Goode, Attorney at Law, Irvine, CA, for Defendants.


ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT ELSEN'S MOTION TO DISMISS (ECF Nos. 42, 49, 60)
ORDER DENYING DEFENDANTS BLACKSTONE AND ELSEN'S MOTIONS FOR SUMMARY JUDGMENT

STANLEY A. BOONE, United States Magistrate Judge.
I.
INTRODUCTION

Plaintiff Rosario Alonso filed this action on October 10, 2011. (ECF No. 1.) The action is currently proceeding on the first amended complaint, filed February 26, 2013, against Defendants Blackstone Financial Group, LLC (“Blackstone”) and Jason Elsen alleging violations of the Fair Debt Collection Practices Act (“FDCPA”),

[962 F.Supp.2d 1191]

15 U.S.C. § 1692 et seq., and the Rosenthal Fair Debt Collection Act (“RFDCPA”), Cal. Civ.Code §§ 1788–1788.32. (ECF No. 31.)

On May 13, 2013, Defendant Elsen filed a motion to dismiss. (ECF No. 42.) Defendants Blackstone and Elsen filed separate motions for summary judgment on May 20, 2013. (ECF Nos. 43, 44.) Plaintiff filed oppositions to the motions on July 10, 2013. (ECF Nos. 49, 51, 52.) On July 18, 2013, Defendants Blackstone and Elsen filed objections and replies to Plaintiff's oppositions to their separate motions for summary judgment.1 (ECF Nos. 54–59.) On July 19, 2013, the parties filed joint statements of undisputed facts. (ECF Nos. 60, 61.) A hearing on Defendants' motions was held on July 24, 2013. Counsel William Krieg and John Gist appeared for Plaintiff and counsel Michael Goode appeared telephonically for Defendants Blackstone and Elsen. Following the hearing, the parties submitted supplemental briefing on July 25, 2013. (ECF No. 65, 66.) Having considered the moving papers, opposition and reply papers, supplemental briefing, and the argument during the July 24, 2013 hearing, the Court issues the following order.

II.
ALLEGATIONS IN FIRST AMENDED COMPLAINT

Prior to October 11, 2010, Plaintiff incurred a financial obligation to J.P. Morgan Chase Bank and fell behind in payments. (First Am. Compl. ¶¶ 19, 21, ECF No. 31.) The debt was assigned to Defendant Blackstone for collection. ( Id. at ¶ 22.) Plaintiff alleges that on October 11, 2010, an agent of Defendant Blackstone contacted Plaintiff's former husband, Michael Alonso, at work and identified himself as a law enforcement officer, “Officer Carmichael”. ( Id. at ¶¶ 23, 28.) During the conversation, Officer Carmichael informed Mr. A lonso that a legal case was pending against Plaintiff, that he was liable for the debt, and his wages could be garnished. The caller left a phone number and case number and told Mr. Alonso to have Plaintiff call that day to speak with him. ( Id. at ¶ 25.)

Shortly after receiving the call, Mr. Alonso spoke with Plaintiff and conveyed the information he received from Officer Carmichael. ( Id. at 34.) Later that same day, Plaintiff called the phone number left with Mr. Alonso. The phone was answered by a woman who said, “Blackstone Financial Group,” and when Plaintiff asked for Officer Carmichael, she was connected with Steven Darwin who stated he was taking Officer Carmichael's calls and repeated the misrepresentations told to Mr. A lonso. ( Id. at ¶ 35.) Mr. Darwin told Plaintiff that he was contacting her on behalf of Chase regarding her credit card. ( Id. at ¶ 38.) When Plaintiff informed Mr. Darwin that she was unable to talk because she was driving, he told her that she had to make a payment that day or an officer would come to her work the following day to escort her from work. ( Id. at ¶¶ 41–42.) On the same day, Plaintiff borrowed money from a family member and made a $100 payment on the account. ( Id. at ¶ 42.)

[962 F.Supp.2d 1192]

Plaintiff alleges that Defendant Elsen was an officer, director, managing member, principal shareholder, and person in control of Defendant Blackstone. Defendant Elsen regularly engaged, directly and indirectly, in the collection of debts. Defendant Elsen personally participated in, had personal knowledge of, authorized and ratified each of the acts alleged as an officer, director and managing director of Defendant Blackstone. ( Id. at ¶ 12.)

III.
MOTION TO DISMISS

A. LEGAL STANDARD

In considering a motion to dismiss for failure to state a claim, the court generally considers only the pleadings and must accept as true the allegations in the complaint. Marder v. Lopez, 450 F.3d 445, 448 (9th Cir.2006); Shaver v. Operating Engineers Local 428 Pension Trust Fund, 332 F.3d 1198, 1201, 1203 (9th Cir.2003). The court is to “construe the pleading in the light most favorable to the party opposing the motion, and resolve all doubts in the pleader's favor.” Hebbe v. Pliler, 627 F.3d 338, 340 (9th Cir.2010).

A motion to dismiss for failure to state a claim is properly granted where the complaint lacks “a cognizable legal theory” or “sufficient facts alleged under a cognizable legal theory.” Conservation Force v. Salazar, 646 F.3d 1240, 1241–42 (9th Cir.2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)). There are two requirements to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). While accepting factual allegations in the complaint as true, the court is not required to accept legal conclusions as true, and the factual allegations must state a plausible claim for relief. Maya v. Centex Corp., 658 F.3d 1060, 1067 (9th Cir.2011).

B. DISCUSSION

Plaintiff alleges that the actions described in the complaint violate various provisions of 15 U.S.C. § 1692 et seq. and California Civil Code § 1788.17. Defendant Elsen contends that Plaintiff has named him in this action under two legal theories, that he violated the FDCPA and that he was an alter ego of Defendant Blackstone, and each of these claims must be dismissed. (Def. Jason Elsen's Mem. of P. & A. in Supp. of Mot. to Dismiss First Am. Compl. 6, ECF No. 42–1.2) Plaintiff replies that she has alleged Defendant Elsen is liable under three different theories: FDCPA and RFDCPA, alter ego, and successor in interest. Plaintiff argues that Defendant's motion to dismiss should be denied on the grounds that he has not carried his burden to show that the complaint fails to state a claim, or challenged her allegation of successor in interest liability.3 (Pl.'s Opp. to Def. Jason Elsen's

[962 F.Supp.2d 1193]

Mot. to Dismiss First Am. Compl. 7, ECF No. 49.) The Court will address the two bases raised in Defendant Elsen's motion to dismiss: 1) whether Plaintiff has sufficiently alleged a claim under section 1692 et seq. against Defendant Elsen for his participation in the debt collection business; and 2) whether Plaintiff has sufficiently alleged alter ego liability in the first amended complaint.

1. Plaintiff's Amended Complaint States a Claim Against Defendant Elsen Under 15 U.S.C. § 1692 et seq.

Defendant Elsen argues there are no allegations that he directly participated in the incidents alleged in the complaint. Defendant Elsen contends that he was deposed for over six hours on November 5, 2012, and it is clear that Plaintiff knows that he did not engage directly or indirectly in the alleged wrongful conduct and the allegations made on information and belief are not adequate to state a claim. (ECF No. 42–1 at 9.) Plaintiff responds that pleading on information and belief is expressly allowed under Federal Rule of Civil Procedure 11. (ECF No. 49 at 7.)

Under the Federal Rules of Civil Procedure, a complaint needs only to allege facts with sufficient specificity to notify the defendant of the plaintiff's claims. Fed.R.Civ.P. 8(a); Balderas v. Countrywide Bank, N.A., 664 F.3d 787, 790 (9th Cir.2011). To survive a Rule 12(b)(6) motion to dismiss, the complaint does not need to include detailed factual allegations, but must contain “enough facts to state a claim to relief that is plausible on its face.” Weber v. Dep't Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir.2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007)). “So long as the plaintiff alleges facts to support a theory that is not facially implausible, the court's skepticism is best reserved for later stages of the proceedings when the plaintiff's case can be rejected on evidentiary grounds.” In re Gilead Sciences Securities Litigation, 536 F.3d 1049, 1057 (9th Cir.2008).

Finally, Federal Rule of Civil Procedure 11(b) allows information based on personal knowledge or on information and belief as long as there is a good faith basis for doing so based on reasonable inquiry. Langadinos v. American Airlines, Inc., 199 F.3d 68, 73 (1st Cir.2000). While the allegations in the complaint are made on “information and belief”, at the pleading stage, the Court accepts the allegations in determining the sufficiency of the pleadings.4

“To establish a claim under the FDCPA, a plaintiff must show: (1) she is a consumer within the meaning of 15 U.S.C. § 1692a(3); (2) the debt arises out of a transaction entered into for personal purposes; (3) the defendant is a debt collector within the meaning of 15 U.S.C. § 1692a(6); and (4) the defendant violated one of the provisions of the FDCPA,

[962 F.Supp.2d 1194]

15 U.S.C. §§ 1692a–1692 o .” Laugenour v. Northland Group Inc., No. 2:12–cv–02995 GEB DAD PS, 2013 WL 3745727, at *2 (E.D.Cal. July 15, 2013) (citing Moriarity v. Nationstar Mortg., LLC, No. 1:13–cv–0855 AWI SMS, 2013 WL 3354448, at *4 (E.D.Cal. July 3, 2013)). Plaintiff has specifically alleged the first two elements of an FDCPA claim.

As discussed below, a debt collector is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any...

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23 practice notes
  • McMahon v. LVNV Funding, LLC, No. 12 C 1410
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 14, 2018
    ...of damages under the FDCPA, and it may well be a proper measure of damages in this case. See Alonso v. Blackstone Fin. Grp. LLC , 962 F.Supp.2d 1188, 1197–98 (E.D. Cal. 2013) ; Abby v. Paige , No. 10-23589-CIV, 2013 WL 141145, at *9 (S.D. Fla. Jan. 11, 2013) ; Hamid v. Stock & Grimes, LLP ,......
  • Young v. Npas, Inc., Case No. 2:16-cv-01104
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • February 5, 2019
    ...under state law to collect damages for emotional distress under a suit brought pursuant to FDCPA." Alonso v. Blackstone Fin. Grp. LLC , 962 F.Supp.2d 1188, 1199 (E.D. Cal. 2013) (citations omitted). "Other courts have concluded that a plaintiff does not need to meet the state law standards ......
  • Galima v. Ass'n of Apartment Owners of Palm Court, CIV. NO. 16-00023 LEK-RT
    • United States
    • U.S. District Court — District of Hawaii
    • May 3, 2019
    ...report andPage 28 recommendation adopted, 2012 WL 5269390 (Oct. 22, 2012); see also, e.g., Alonso v. Blackstone Fin. Grp. LLC, 962 F. Supp. 2d 1188, 1201 (E.D. Cal. 2013) ("in the Ninth Circuit a plaintiff may recover for actual damages . . . as long as she has tendered evidence substantiat......
  • Burnett v. NBS Default Servs., No. 2:19-cv-367-JAM-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 6, 2020
    ...some act or omission that violated a provision of the FDCPA. See 15 U.S.C. § 1692a(3)-(6); Alonso v. Blackstone Financial Group LLC, 962 F. Supp. 2d 1188, 1193-94 (E.D. Cal. 2013). Under the FDCPA, a "consumer" is defined as any natural person obligated or allegedly obligated to pay any deb......
  • Request a trial to view additional results
23 cases
  • McMahon v. LVNV Funding, LLC, No. 12 C 1410
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
    • March 14, 2018
    ...of damages under the FDCPA, and it may well be a proper measure of damages in this case. See Alonso v. Blackstone Fin. Grp. LLC , 962 F.Supp.2d 1188, 1197–98 (E.D. Cal. 2013) ; Abby v. Paige , No. 10-23589-CIV, 2013 WL 141145, at *9 (S.D. Fla. Jan. 11, 2013) ; Hamid v. Stock & Grimes, LLP ,......
  • Young v. Npas, Inc., Case No. 2:16-cv-01104
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Utah
    • February 5, 2019
    ...under state law to collect damages for emotional distress under a suit brought pursuant to FDCPA." Alonso v. Blackstone Fin. Grp. LLC , 962 F.Supp.2d 1188, 1199 (E.D. Cal. 2013) (citations omitted). "Other courts have concluded that a plaintiff does not need to meet the state law standards ......
  • Galima v. Ass'n of Apartment Owners of Palm Court, CIV. NO. 16-00023 LEK-RT
    • United States
    • U.S. District Court — District of Hawaii
    • May 3, 2019
    ...report andPage 28 recommendation adopted, 2012 WL 5269390 (Oct. 22, 2012); see also, e.g., Alonso v. Blackstone Fin. Grp. LLC, 962 F. Supp. 2d 1188, 1201 (E.D. Cal. 2013) ("in the Ninth Circuit a plaintiff may recover for actual damages . . . as long as she has tendered evidence substantiat......
  • Burnett v. NBS Default Servs., No. 2:19-cv-367-JAM-EFB PS
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • August 6, 2020
    ...some act or omission that violated a provision of the FDCPA. See 15 U.S.C. § 1692a(3)-(6); Alonso v. Blackstone Financial Group LLC, 962 F. Supp. 2d 1188, 1193-94 (E.D. Cal. 2013). Under the FDCPA, a "consumer" is defined as any natural person obligated or allegedly obligated to pay any deb......
  • Request a trial to view additional results

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