Robinson v. Managed Accounts Receivables Corp., Case No. CV 09-01996 DDP (JCx).

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
Writing for the CourtDean D. Pregerson
Citation654 F.Supp.2d 1051
PartiesHanny ROBINSON, Plaintiff, v. MANAGED ACCOUNTS RECEIVABLE CORPORATION; Law Offices of Corey Fitzgerald; Dennis Bell; Mark Bishop; Deana Righettini, Defendants.
Decision Date04 August 2009
Docket NumberCase No. CV 09-01996 DDP (JCx).
654 F.Supp.2d 1051
Hanny ROBINSON, Plaintiff,
v.
MANAGED ACCOUNTS RECEIVABLE CORPORATION; Law Offices of Corey Fitzgerald; Dennis Bell; Mark Bishop; Deana Righettini, Defendants.
Case No. CV 09-01996 DDP (JCx).
United States District Court, C.D. California.
August 4, 2009.

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COPYRIGHT MATERIAL OMITTED

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COPYRIGHT MATERIAL OMITTED

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Robert Stempler, Cal. Bar No. 160299, Consumer Law Office of Robert Stempler, APLC, Palm Springs, CA, for Plaintiff.

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Robert J. Hatem, Attorney at Law, Jason T. Yu, Attorney at Law, Klinedinst PC, Los Angeles, CA, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS AND DENYING DEFENDANTS' MOTION TO STRIKE

[Motions filed on June 4, 2009.]

DEAN D. PREGERSON, District Judge.


This matter comes before the Court on Defendants' Motions to Dismiss and to Strike. After considering the materials submitted by the parties, the Court grants in part and denies in part the motion to dismiss and denies the motion to strike.

I. BACKGROUND

Plaintiff Hanny Robinson files this action against Defendants Managed Accounts Receivable Corporation ("MarCorp"), Law Offices of Corey Fitzgerald ("LOCF"), and individuals Dennis Bell, Mr. Bishop, and Deana Righettini. Bell was an employee of MarCorp, and Bishop and Righettini were employees of LOCF. (Compl. at ¶¶ 5-8.) Plaintiff alleges that Defendants are debt collectors who attempted to collect Plaintiffs debt. (Id. at ¶ 9.) In December 2008, Bell called Plaintiff to try to collect on Plaintiffs debt. (Id. at ¶ 10.) During this conversation, Plaintiff informed Bell that she was on active duty with the Marines, and that therefore the Servicemembers' Civil Relief Act applied to her. (Id.) Plaintiff asked Bell to send to her home address a written validation of her account with MarCorp. (Id. at ¶ 11.) Bell represented that this validation would be sent to her. (Id.) In reliance on this representation, Plaintiff agreed to settle her debt for $1,940. (Id. at ¶ 12.) Plaintiff told Bell her checking account number at Navy Federal Credit Union and gave MarCorp permission to withdraw $750 from her account, beginning with a $250 withdrawal on January 15, 2009. (Id.) Without further notice to Plaintiff, Defendant MarCorp prepared a paper bank draft, entitled "Statement of Debit" and dated January 5, 2009, to withdraw $500 from Plaintiffs account. (Id. at ¶ 14.) Several days before January 15, 2009, Plaintiff called MarCorp to try to renegotiate the agreed-upon payment, saying she could not afford the payments discussed. (Id. at ¶ 15.) Bell told her he would get back to her, but did not inform her about the Statement of Debit. (Id.) On January 14, 2009, without notifying Plaintiff, MarCorp withdrew $500 from Plaintiffs checking account. (Id. at ¶¶ 16-17.) MarCorp had not sent Plaintiff a written validation of her account. (Id. at ¶ 17.) Upon learning of this withdrawal, Plaintiff requested her bank to stop payment. (Id. at ¶ 18.)

On February 5, 2009, Defendant Bishop called Plaintiff on her cell phone, and left a message in which he told her that the matter was about to go to court. (Id. at ¶ 19.) On the same day, Plaintiff called Bishop. (Id.) During this conversation, Bishop told Plaintiff that she had written a bad check, that he had no knowledge of Plaintiffs settlement with MarCorp, that that settlement was not in her file, and that Bell no longer worked for MarCorp. (Id.) Bishop also offered to settle the debt for $3,000. (Id. at ¶ 15.) Plaintiff demanded a written validation of her account, which Bishop told her he could not do. (Id. at ¶ 21.)

On March 12, 2009, Defendant Righettini called Plaintiff at work. (Id. at ¶ 25.) Plaintiff informed Righettini that she was not authorized to call Plaintiff at work. (Id.) In response, Righettini said, "Yes I can. There is nothing that says that I can't." (Id.) Righettini told Plaintiff that she owed $3,480 on her account, and offered

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to settle the account for $3,000. (Id. at ¶ 27.) Plaintiff demanded a written validation of her account, which Righettini agreed to send to her. (Id. at ¶ 28.) Subsequently, Plaintiff received a letter from LOCF, dated March 12, 2009, which did not include the identity of the original creditor or Plaintiffs account number, and showed an outstanding balance of $3,942.48. (Id. at ¶ 29.) The letter offered to settle Plaintiffs debt for $3,000. (Id. at ¶ 30.) The letter failed to inform Plaintiff of her rights under the Fair Debt Collection Practices Act ("FDCPA") or to state that the letter was from a debt collector attempting to collect a debt. (Id. at ¶ 31.) On March 13, 2009, Plaintiff sent a letter to LOCF, attention of Defendant Righettini, in which Plaintiff requested that LOCF send her written validation of her account, cease communications with her, and stop calling her at work. (Id. at ¶ 32.) On March 13, 2009, Righettini called Plaintiffs workplace and spoke with a Sergeant on duty. (Id. at ¶ 33.) On March 16, 2009, Righettini, who had by then received Plaintiffs letter dated March 13, 2009, called Plaintiffs workplace again. (Id. at ¶ 34-35.) During this phone call, Righettini spoke to a telephone operator, who informed Righettini that she could not call Plaintiff at work, to which Righettini responded that she would continue to call. (Id. at ¶ 35.)

Plaintiff filed this suit on March 24, 2009, asserting seven causes of action against the five defendants. Plaintiff asserts violations of the FDCPA and the California Rosenthal FDCPA ("California FDCPA"), intentional interference with prospective economic advantage ("IIPEA"), fraud, intentional infliction of emotional distress ("IIED"), invasion of privacy, and injunctive relief under the California Unfair Competition Law ("California UCL"). On June 4, 2009, Defendants LOCF, Bishop and Righettini ("Defendants") collectively moved to dismiss the entire complaint with prejudice and to strike the portions of the Complaint which assert claims for punitive damages.1 Plaintiff filed a Reply in support of her complaint on June 15, 2009, and Defendants filed a Reply in support of their motions on June 22, 2009.

II. MOTION TO DISMISS

A. PROCEDURAL STANDARD

Under Rule 12(b)(6), a complaint must be dismissed when the plaintiff's allegations fail to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Dismissal is proper when there is a "lack of a cognizable legal theory or [an] absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1990). When considering a 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). However, a "court [is not] required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.2001). Nor is a court "bound to accept as true a legal conclusion couched as a factual allegation." Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949-50, 173 L.Ed.2d 868 (U.S.2009) (internal quotation marks omitted).

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Iqbal, 129 S.Ct. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127

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S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Although a complaint need not include "`detailed factual allegations,' ... [a] pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The complaint must contain "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S.Ct. at 1949. "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not `shown'—`that the pleader is entitled to relief.'" Id. at 1950 (quoting Fed.R.Civ.P. 8(a)(2)) (internal brackets omitted). "[A] well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely." Twombly, 550 U.S. at 556, 127 S.Ct. 1955 (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)) (internal quotation marks omitted).

B. DISCUSSION

1. First Claim: Violation of the FDCPA, against all Defendants

The FDCPA was created to protect consumers from unfair and deceptive debt collection practices. See 15 U.S.C. § 1692. In order for a plaintiff to recover under the FDCPA, there are three threshold requirements: (1) the plaintiff must be a "consumer"; (2) the defendant must be a "debt collector"; and (3) the defendant must have committed some act or omission in violation of the FDCPA. See, e.g., Withers v. Eveland, 988 F.Supp. 942, 945 (E.D.Va.1997); see also 15 U.S.C. § 1692a(3), (6). Plaintiff's complaint explicitly alleges that Plaintiff is a "consumer" and that each Defendant is a "debt collector" under the FDCPA.2 (Compl. at ¶¶ 38-39.) The complaint further states that "[t]he defendants violated numerous sections of the FDCPA," without specifying which Defendants violated which sections of the statute. (Id. at ¶ 42.) Defendants argue that the claim should be dismissed against all Defendants because the factual allegations are insufficient to support the FDCPA claim and because the claim is stated with insufficient specificity. Alternatively, Defendants argue that the claim should be dismissed against Bishop and Righettini because they cannot be held personally liable under the FDCPA.

a. Sufficiency of the Factual Allegations

The factual allegations stated in the complaint are sufficient to state a...

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    ...2008 WL 3891958, 2008 U.S. Dist. LEXIS 63701 (N.D. Cal. Aug. 19, 2008) (Fogel, J.); Robinson v. Managed Accounts Receivable Corp., 654 F. Supp. 2d 1051 (C.D. Cal. 2009) (Pregerson, J.); Miranda v. Law Office of D. Scott Carruthers, No. 1:10-01487, 2011 WL 2037556, 2011 U.S. Dist. LEXISPage ......
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    ...2008 WL 3891958, 2008 U.S. Dist. LEXIS 63701 (N.D.Cal. Aug. 19, 2008) (Fogel, J.); Robinson v. Managed Accounts Receivables Corp., 654 F.Supp.2d 1051 (C.D.Cal.2009) (Pregerson, J.); Miranda v. Law Office of D. Scott Carruthers, No. 1:10–01487, 2011 WL 2037556, 2011 U.S. Dist. LEXIS 55180 (E......
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  • Warner v. Midland Credit Mgmt., Inc., Case No. EDCV 19-2378-KK
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    ...(3) the defendant must have committed some act or omission in violation of the FDCPA." Robinson v. Managed Accts. Receivables Corp., 654 F. Supp. 2d 1051, 1057 (C.D. Cal. 2009). "Generally, whether a defendant has violated the FDCPA is a question of fact to be resolved by the jury." Voris v......
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