Ruiz v. Hunt & Henriques

• Decision Date: 29 July 2020
• Docket Number: D075286
• Court: California Court of Appeals Court of Appeals
• Parties: MARGARET A. RUIZ, Cross-complainant and Respondent, v. HUNT & HENRIQUES, Cross-defendant and Appellant.

MARGARET A. RUIZ, Cross-complainant and Respondent, v. HUNT & HENRIQUES, Cross-defendant and Appellant.

D075286

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

July 29, 2020

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 37-2018-00004757-CU-CL-CTL)

APPEAL from an order of the Superior Court of San Diego County, Timothy B. Taylor, Judge. Affirmed in part and reversed in part.

Kurtiss A. Jacobs and Donald Sherrill for Cross-defendant and Appellant.

Legal Aid Society of San Diego, Alysson Snow and Mika Wilbur for Cross-complainant and Respondent.

Capital One Bank, N.A. (Capital One) sued Margaret Ruiz to collect a credit card debt of $5,616.81. Capital One was represented by the law firm Hunt & Henriques (Hunt). Ruiz cross-complained against Capital One, Hunt, and another entity. The only issues before us concern Ruiz's claims against Hunt. Ruiz alleged Hunt violated the federal Fair Debt Collection Practices Act (FDCPA), the federal Telephone Consumer Protection Act (TCPA), and California's Unfair Competition law (UCL).¹ Ruiz's claims against Hunt involve mainly its actions as a debt collector under the federal statutes.

Hunt filed an anti-SLAPP motion requesting dismissal of each claim against it. After briefing and a hearing, the court found the causes of action were based on activities protected by the anti-SLAPP statute, but Ruiz met her burden to show a probability of prevailing on each claim. The court thus denied Hunt's motion.

On appeal, Hunt contends the court erred in finding Ruiz's claims are factually and legally supported. Ruiz does not dispute her causes of action are subject to the anti-SLAPP statute, but contends she met her statutory burden to show her claims have sufficient merit to defeat an anti-SLAPP motion.

We affirm in part and reverse in part. The court properly denied Hunt's anti-SLAPP motion on all causes of action except Ruiz's TCPA claim.

FACTUAL AND PROCEDURAL SUMMARY

Background

Sometime before September 2015, Ruiz opened a Capital One credit card account. She claims her card was lost or stolen in late 2015, and fraudulent charges were made to her card. She did not pay the remaining balance because of health and financial difficulties.

After initially seeking to collect the unpaid amount, Capital One placed Ruiz's account with Firstsource Advantage, LLC (Firstsource), a collections entity. When Firstsource was unsuccessful, on September 29, 2017, Capital One placed Ruiz's account with Hunt, a debt collection law firm.

On October 19, 2017, Hunt attorney Anthony DiPiero sent a letter (known as a validation letter (§ 1692g)) to Ruiz regarding the claimed credit card debt.² The letter identified Capital One, stated the balance due was $5,616.81, and referenced the last four numbers of her credit card account. The letter then stated in part:

"As a result of your default on the above identified account, our client [Capital One] has engaged this law firm to attempt to collect the outstanding balance due on your account.

"Federal law gives you 30 days after you receive this letter to dispute the validity of the debt or any portion thereof. If you do dispute the validity of the debt or any portion thereof, in writing, we will obtain verification of the debt or a copy of the judgment against you, if any, and mail a copy of such a verification or judgment to you."

The letter also stated: "This communication is from a debt collector. The letter is an attempt to collect a debt and any information obtained may be used for that purpose."

Three weeks later, on November 9, Ruiz sent Hunt a responsive letter:

"This letter is my official notification to you that I dispute the above referenced account with Capital One Bank as it pertains to thecharges and balance owed. My card was lost/stolen when the account was active and there are several charges that appeared that I did not make. I brought this to the attention of Capital One Bank several times in the past but they failed to follow-up or investigate the charges. I don't recall the exact amount of illegitimate charges but it was over $1,000.

"In addition to the fraudulent charges in dispute, I had attempted to make monthly payments to Capital One Bank . . . however, my health became such that I required several surgeries and can no longer work. As of March 2012, I was found 100% disabled by the Social Security Administration, so I live on a very small fixed income, I do not possess the means to pay this debt that has since been charged off.

"I would like a copy of any/all documentation that Capital One Bank has submitted to you that relates to this account. You can email this to me at: [email address] or regular mail to: [home address]."

Five days later, on November 14, Hunt attorney DiPiero wrote a letter to Ruiz, attaching Ruiz's credit card statements from October 2015 to October 2016. The letter also stated:

"In your letter, you indicated that you may be a victim of identity theft. In order to proceed with the fraud investigation, [can you] please . . . identify the dates, dollar amounts, and merchant names for any transactions that you claim are fraudulent. In addition, please provide a date or time frame of your last use of the credit card. [¶] Please provide the requested information within 10 days of the date of this letter. [¶] This firm is a debt collector."

Ruiz denies receiving the letter, and never responded to the letter.

On January 8, 2018, Hunt attorney DiPiero wrote again to Ruiz, identifying the same account balance ($5,616.81) and stating the "purpose of this letter is to advise you that our firm intends to file suit against you on behalf of our client [Capital One]. Legal action could result in a judgment against you that would include the costs and necessarydisbursements . . . ." The letter concluded: "This communication is from a debt collector."

Complaint and Cross-complaint

Two weeks later, Capital One (represented by Hunt) filed a collection action for $5,616.81 against Ruiz. The complaint is not contained in the appellate record.

Ruiz filed a cross-complaint against Capital One, Hunt, and Firstsource, alleging "the amount of $5,616.81 is misleading, inaccurate and fraudulent." She claimed her Capital One credit card was lost or stolen in 2015, and was "used to purchase various goods and services that [she] did not authorize" or "benefit from."

According to Ruiz's amended cross-complaint, she "promptly informed [Capital One] of the fact that the card was lost or stolen, including verbally disputing the fraudulent charges. [¶] [She] received a letter from [Capital One], notifying her of a refund of one of the fraudulent charges, a CA FINGERPRINTING . . . charge for $68.95. [¶] Ruiz continued to dispute the other fraudulent charges. However, [she] never received any other acknowledgements of her other disputes."

With respect to Capital One and Firstsource, Ruiz alleged these entities made numerous attempts to collect on her account, despite her repeated notices to each entity that she was disputing various "fraudulent charges" on the account and that they were prohibited from continuing to contact her about her account. Ruiz also alleged she repeatedly informed these entities of her inability to pay the amounts because of medical and financial issues.

With respect to Hunt, Ruiz alleged she received Hunt's October 19 letter identifying the $5,616.81 debt amount; she sent the responsive November 9 letter disputing the debt and asking for documentation; but she never received any response to this letter. She acknowledged receiving Hunt's January 8 letter.

Ruiz also alleged she received various collection phone calls, including that "Cross-Defendants initiated [some of] the . . . calls using an 'autodialer,' as that term is defined under the [TCPA]." She also alleged facts pertaining to her son receiving a phone call in Fall 2017, during which the caller told her son that she owed money, in "an attempt to embarrass" her in violation of the FDCPA.

As against Hunt, Ruiz alleged three causes of action.

First, Ruiz alleged that Hunt violated the FDCPA in two ways: (1) "conveying information regarding [her] debt" to her son in violation of section 1692b(2); and (2) falsely representing the amount of the debt and attempting to collect an amount not legally owed in violation of sections 1692e(2)(a) and 1692f(1).

Second, Ruiz alleged that Hunt violated the TCPA by calling her "using an autodialer system." (See 47 U.S.C. § 227(b)(1)(A).)

Third, Ruiz alleged that Hunt's actions violated California's UCL statute. (Bus. & Prof. Code, § 17200 et seq.)

Hunt's Anti-SLAPP Motion

Hunt moved to dismiss the three causes of action under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Hunt argued that each cause of action was based on its exercise of its constitutional speech and petition rights, and Ruiz could not show aprobability of prevailing on the merits of the claims because (1) she failed to allege facts supporting a cause of action; (2) the alleged facts are false; (3) the cited statutes do not prohibit the alleged conduct; and (4) as a matter of constitutional law, Hunt's actions and communications cannot give rise to liability.

Hunt submitted the lengthy declaration of Donald Sherrill, a Hunt attorney, who said he is "a custodian of [Hunt's] business records." As detailed below, Sherrill confirmed Capital One placed Ruiz's account with the law firm for debt collection on September 29, 2017; denied the Hunt firm used autodialing equipment after January 2017; and denied that anyone from his firm ever spoke with Ruiz or her son.

With respect to written communications, Sherrill attached Hunt's October 19, November 14 (with...