Quinones v. Ocwen Loan Servicing, LLC
| Decision Date | 16 October 2017 |
| Docket Number | Case No. 17–03536 DDP–PLAx |
| Parties | Richard QUINONES, Plaintiff, v. OCWEN LOAN SERVICING, LLC, Defendant. |
| Court | U.S. District Court — Central District of California |
Joshua B. Swigart, Veronica Elizabeth McKnight, Hyde and Swigart, San Diego, CA, Seyed Abbas Kazerounian, Kazerouni Law Group APC, Costa Mesa, CA, for Plaintiff.
Chad R. Fuller, Troutman Sanders LLP, Irvine, CA, Justin M. Brandt, Troutman Sanders LLP, San Diego, CA, Virginia Bell Flynn, Pro Hac Vice, Troutman Sanders LLP, Dallas, TX, for Defendant.
ORDER DENYING DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S SECOND AMENDED COMPLAINT
Presently before the court is Defendant's Motion to Dismiss. Having considered the parties' submissions, the court adopts the following Order.
Plaintiff Richard Quinones ("Quinones") allegedly incurred debts from Defendant Ocwen Loan Servicing, LLC ("Ocwen"). (Second Amended Compl. ("SAC") ¶ 18.) Between April 4, 2011 and June 9, 2016, Ocwen called Quinones' cellphone using an automatic telephone dialing system ("ATDS") in attempts to collect the alleged debt. (Id. ¶ 19.) When Quinones answered the calls, there would often "be silence with a click or a beep-tone, before a representative would pick up and start speaking." (Id. ¶ 21.) On other occasions, the caller was a recorded voice or message. (Id. ¶ 22.) In total, Quinones received at least 1,053 calls. (Id. ¶ 23.)
Quinones alleges he did not provide express consent to receive calls from Ocwen. (Id. ¶ 26.) Furthermore, Quinones states he revoked any type of prior express consent, if it ever existed, by picking up the calls and stating on several occasions that he no longer wished to be contacted. (Id. ¶ 27.) Quinones alleges the calls continued for at least one year after the revocation. (Id. ¶ 28.)
Based on these allegations, Plaintiff Quinones brought suit against Ocwen for violations of the Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227 et seq. , and common law negligence. The SAC asserts three causes of action: negligent violations of the TCPA; knowing and/or willful of the TCPA; and negligence. (Id. ¶¶ 50–62.) Ocwen now moves to dismiss the claims asserted in the SAC.
A complaint will survive a motion to dismiss when it contains "sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). When considering a Rule 12(b)(6) motion, a court must "accept as true all allegations of material fact and must construe those facts in the light most favorable to the plaintiff." Resnick v. Hayes , 213 F.3d 443, 447 (9th Cir. 2000). Although a complaint need not include "detailed factual allegations," it must offer "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Conclusory allegations or allegations that are no more than a statement of a legal conclusion "are not entitled to the assumption of truth." Id. at 679, 129 S.Ct. 1937. In other words, a pleading that merely offers "labels and conclusions," a "formulaic recitation of the elements," or "naked assertions" will not be sufficient to state a claim upon which relief can be granted. Id. at 678, 129 S.Ct. 1937 (citations and internal quotation marks omitted).
"When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement of relief." Id. at 679, 129 S.Ct. 1937. Plaintiffs must allege "plausible grounds to infer" that their claims rise "above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. "Determining whether a complaint states a plausible claim for relief" is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937.
Defendant contends that Quinones cannot establish Article III standing because he has not adequately pled an "injury in fact" arising from Defendant's conduct. (Def.'s MTD at 6). To satisfy the "injury in fact" requirement, a plaintiff must have suffered "an invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Spokeo v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 1547, 194 L.Ed.2d 635 (2016) (quoting Lujan v. Defenders of Wildlife , 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ). "[I]ntangible injuries can nonetheless be concrete." Id. at 1549.
Quinones asserts that he has met this standard in his pleading. As to injury, the SAC alleges that Quinones suffered an invasion of his privacy interests and became "frustrated and distressed" that the collection calls continued despite his instructions that Defendant stop calling him. (SAC ¶¶ 35, 36). It further alleges that the calls "disrupted Plaintiff's daily activities and the peaceful enjoyment of Plaintiff's personal and professional life, including the ability to use Plaintiff's phone." (SAC ¶ 37). Finally, the SAC claims that the calls intruded on Plaintiff's relationships with close family members. (SAC ¶ 38). Quinones began to (SAC ¶ 38).
The court finds that the harms alleged are particularized to Quinones and sufficiently concrete to confer Article III standing. In Van Patten v. Vertical Fitness Grp., LLC , 847 F.3d 1037, 1042 (9th Cir. 2017), the Ninth Circuit recently interpreted the Supreme Court's ruling in Spokeo v. Robins , ––– U.S. ––––, 136 S.Ct. 1540, 194 L.Ed.2d 635 (2016), which concerned standing to sue under the TCPA. The Ninth Circuit concluded that, in enacting the TCPA, "Congress identified unsolicited contact as a concrete harm, and gave consumers a means to redress this harm." Id. at 1043. Specifically, the court opined that "[u]nsolicited telemarketing phone calls or text messages, by their nature, invade the privacy and disturb the solitude of their recipients." Id. Therefore, "a plaintiff alleging a violation under the TCPA ‘need not allege any additional harm beyond the one Congress has identified.’ " Id. (quoting Spokeo , 136 S.Ct. at 1549 ).
Although Defendant's phone calls to Quinones were ostensibly for the purpose of debt collection and not telemarketing, the court finds that a similar reasoning applies here.1 As the Van Patten court acknowledged, "the FCC has established no rule that a consumer who gives a phone number to a company has consented to be contacted for any reason." Id. at 1046. Rather, "the transactional context matters in determining the scope of a consumer's consent to contact." Id. At the pleading stage, Quinones has adequately set forth a concrete injury caused by Defendant's recurring debt collection calls, to which he claims he did not consent. (SAC ¶¶ 26–27, 35–38).
Moreover, the court finds that the district court cases upon which Defendant relies, namely Romero and Ewing , are inapposite because they adopt a higher standard to satisfy Article III standing requirements under the TCPA, and were decided before the Ninth Circuit had the opportunity to construe Spokeo through its ruling in Van Hutton. See Romero v. Dep't Stores Nat'l Bank , 199 F.Supp.3d 1256 (S.D. Cal. 2016) ; Ewing v. SQM US, Inc. , 211 F.Supp.3d 1289 (S.D. Cal. 2016). Therefore, the court joins with many other district courts that have declined to adopt the reasoning in Romero and Ewing in the wake of Van Hutton. See, e.g. , Smith v. Blue Shield of California Life & Health Ins. Co. , 228 F.Supp.3d 1056, 1062 (C.D. Cal. 2017) ; Abante Rooter & Plumbing, Inc. v. Pivotal Payments, Inc. , No. 16-CV-05486-JCS, 2017 WL 733123, at *7 (N.D. Cal. Feb. 24, 2017) ; see also LaVigne v. First Cmty. Bancshares, Inc. , 215 F.Supp.3d 1138, 1147 (D.N.M. 2016) ; Cabiness v. Educ. Fin. Sols., LLC , No. 16-CV-01109-JST, 2016 WL 5791411, at *6 (N.D. Cal. Sept. 1, 2016). Under the standard articulated in Van Hutton , the court finds that Quinones has pled injury sufficient to satisfy Article III standing.
To state a claim for negligence under California law, Quinones must allege that Ocwen "had a duty to use due care, that [it] breached that duty, and that the breach was the proximate or legal cause of the resulting injury." Hayes v. Cty. of San Diego , 57 Cal.4th 622, 629, 160 Cal.Rptr.3d 684, 305 P.3d 252 (2013) (quotations omitted). Ocwen contends that it owed Quinones no duty of care, and that this absence is therefore fatal to his negligence claim.
Quinones' SAC states that (SAC ¶ 59.) Quinones further alleges that "Defendant had a duty to use care to not infringe on consumers' privacy rights when collecting on alleged debts and not calling Plaintiff hundreds and/or thousands of times to harass and/or abuse Plaintiff." (Id. ¶ 59.) The SAC concludes that Defendant breached this duty by calling him a "voluminous number of times" and "continued to call despite Plaintiff's request that the calls stop." (Id. ¶ 59.)
As an initial matter, the court does not rule out the existence of a duty of care as it relates to Ocwen's conduct in this case. In the context of a lender-borrower relationship, courts have held that some activities are not protected by a duty of care. See McCarty v. GCP Mgmt., LLC , No. CIV 10-00133 JMS/KSC, 2010 WL 4812763, at *2 (D. Haw. Nov. 17,...
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