Court of Appeal (Cal.) Says in Unpublished Decision that Rosenthal Act Cross-Complaint Complaining About Misrepresentations Made in Complaint was Entitled to Equitable Tolling of SofL; Professional Dental Services Constituted a “Consumer Credit Contract” Under Rosenthal Act

In Paredes v. Credit Consulting Servs., No. H048092, 2022 Cal. App. Unpub. LEXIS 4848, at *28-31 (Aug. 8, 2022), the Court of Appeal affirmed denial of an anti-Slapp motion filed against a Rosenthal Act complainant suing over alleged misrepresentations made in a debt collection complaint.  First, the Court found that the Rosenthal Act cross-complaint was not barred by the statute of limitations.

We adhere to the reasoning set forth in ZF Micro Devices. In arguing that this court should eschew the holding in that decision, Credit Consulting relies on those appellate decisions which present, as the “general rule,” the tolling doctrine as applicable only to a compulsory cross-complaint.  Thus, in California-American Water Co. v. Marina Coast Water Dist. (2016)  Cal.App.5th 748, the court stated, “As a general rule, the filing of a complaint tolls the statute of limitations applicable to a cross-complaint so long as the cross-complaint is related to the original complaint and its causes of action were not barred when the original complaint was filed.” (Id. at p. 763, citing Trindade, supra, 29 Cal.App.3d at p. 860.) But as the court explained in ZF Micro Devices, the statement of the rule in  Trindade, later repeated in California-American Water and other cases, failed to specify that the underlying facts in each of those decisions concerned only a compulsory cross-complaint and so the court had no opportunity to examine the rationale for not applying the tolling doctrine to permissive cross-complaints. (See ZF Micro Devices, supra, 5 Cal.App.5th at pp. 87-88, 91, fn. 12.)  Credit Consulting also cites Brown v. Ralphs Grocery Co. (2018) 28 Cal.App.5th 824, 841, as support for the proposition that application of the tolling doctrine is improper. That case, however, involved a plaintiff’s attempt to add claims to a second and third amended complaint in a representative action against her employer and did not address tolling of a noncompulsory cross-complaint; it therefore is not authority for the issue before us. (See Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 680 (Kinsman).)  Credit Consulting argues that ZF Micro Devices is factually and procedurally distinguishable because the nature of the extended and complex litigation in that case made it difficult to ascertain when certain causes of action accrued, whereas this case involves “clear accrual of the non-related claims” as of the filing of the collection complaint. We are not persuaded this distinction carries legal significance.  The analysis in ZF Micro Devices demonstrated that in its “decisions predating legislation that abolished the counterclaim and redefined the cross-complaint, the Supreme Court characterized the tolling doctrine as embracing all cross-claims by a defendant against the plaintiff, regardless of their relatedness to the claims asserted in the complaint.” (ZF Micro Devices, supra, 5 Cal.App.5th at p. 91.) Moreover, “the rationale for the doctrine-that by filing the complaint ‘the plaintiff has thereby waived the [statute of limitations defense] and permitted the defendant to make all proper defenses to the cause of action pleaded’ [citation] -appears applicable to both compulsory and permissive cross-complaints.” (Id. at p. 92.) Nor has Credit Consulting identified, and we have not found, subsequent published case authority disagreeing with the analysis in  ZF Micro Devices. Indeed, a panel of this court recently applied the law articulated in ZF Micro Devices to a determination involving application of the continuous accrual theory to the statute of limitations defense. (Blaser v. State Teachers’Retirement System (2019) 37 Cal.App.5th 349, 355 [citing “well-established legal principles,”]; id. at pp. 377-378 [as explained in ZF Micro Devices, that “plaintiff’s filing of a complaint suspends the running of the statute of limitations as to any claims by the defendant against the plaintiff that are not time-barred when the action is filed “].)  We decide the trial court did not err in concluding, under ZF Micro Devices, that the filing of the complaint in this action acted to ” ‘toll[]’ ” or ” ‘suspend[]’ ” the statute of limitations as to the cross-complaint. Whether the cross-complaint is construed as compulsory (as Paredes seems to suggest) or permissive (as Credit Consulting maintains), Paredes’ cross-complaint “is entitled to the benefit of the tolling doctrine.”10 (ZF MicroDevices, supra, 5 Cal.App.5th at p. 92.)

The Court of Appeal went on to address whether the debt itself was a “consumer credit contract” as required by the Rosenthal Act.

The statute does not define the phrase “on credit” as used in Civil Code section 1788.2(e). At least one appellate court has construed the phrase and decided “that the ‘ordinary and usual meaning’ of the phrase ‘on credit’ can be stated as obtaining something of value without immediate payment on the promise to make a payment or payments in the future.” (Davidson v. Seterus, Inc. (2018) 21 Cal.App.5th 283, 296 (Davidson).) In accordance with this meaning, the court in Davidson construed section 1788.2(e) as “providing that a ‘consumer credit transaction’ is ‘a transaction between a natural person and another person in which property, services or money is acquired [without immediate payment and with the promise to pay in the future] by that natural person from such other person primarily for personal, family, or household purposes.”  (Id. at pp. 298-299.) Similarly, a panel of this court previously observed, based on the language of the statute, that Civil Code section 1788.2(e) does not imply “a transaction where a person provides property or services in advance of payment” but rather “means a transaction where a person acquires property or services on credit.” (Gouskos v. AptosVillage Garage, Inc. (2001) 94 Cal.App.4th 754, 759 (Gouskos).) That is, “there is a consumer credit transaction when the consumer acquires something without paying for it.” (Ibid.)  Following the definitional provisions and their interpretation in case law, Credit Consulting argues that a “consumer credit transaction” means a transaction where the goods or services are provided “in return for the agreement to make future payment.” It claims that unlike standard “credit transactions” (such as a loan agreement or credit card agreement), the receipt of services, followed by a refusal to pay, is not a consumer credit transaction, and that courtesy billing of insurance does not absolve the individual of responsibility for payment of the deductible, copay, or for the amount that insurance does not cover. Credit Consulting, in essence, maintains that Paredes has failed to meet her burden to establish the source of alleged debt was a “consumer credit transaction” because her pleading stated that she was not required to do, or pay, anything for the payment forbearance, and only had to wait for Mai Dental to complete the insurance claim forms.  Considering the pleadings and declarations, and accepting as true the evidence favoring Paredes (see Barry, supra, 2 Cal.5th at p. 321; 425.16, subd. (b)(2)), we decide there is ample basis to conclude that Paredes’s indebtedness to Mai Dental arose from a ” ‘consumer credit transaction’ ” within the meaning of the Rosenthal Act. Moreover, Credit Consulting has not defeated Paredes’s showing as a matter of law (Barry, at p. 321), and in fact its pleading supports our conclusion.  In her cross-complaint, Paredes alleged that in her initial visit to the dental office, Maria (a Mai Dental employee) told her that Mai Dental “would accept payment from Delta Dental insurance as payment-in-full for any dental services provided to [Paredes] and her family, [and] that [Mai Dental] would waive any co-payment not covered by Delta Dental.” Paredes further alleged that as a result of the dental services provided to her family, she purportedly “incurred a financial obligation in the form of a consumer credit account.” Paredes “generally denie[d]” that she owed the alleged debt, which she asserted was “primarily for personal, family or household purposes and is therefore a ‘consumer debt’ as that term is defined by [] Civil Code, 1788.2[,subd.] (f).”  In addition, as previously noted, Paredes filed a declaration and amended declaration in response to the anti-SLAPP motion. In these, she reiterated and further attested to her understanding of the financial arrangement. Paredes declared that although she expected Mai Dental to honor their agreement and accept the insurance payment as payment in full for the services provided, she did not believe the services were ” ‘free’ ” or that she had no future obligation to make payments; rather, she expected that the payments made by Delta Dental would satisfy her debt in full, but additionally “understood that [she] would owe Mai Dental for their services, if, for some reason, Delta Dental denied the claims.”  Thus, accepting as true the evidence favorable to Paredes, and according to the pleadings and declarations, Paredes obtained dental services, for personal or family purposes, ” ‘on credit’ ” (Davidson, supra, 21 Cal.App.5th at p. 296)-meaning “without immediate payment and with the promise to pay in the future.” (Id. at pp. 296-297.) In accordance with their agreed-upon financial arrangement, such future payment would be made by Delta Dental upon the filing of the claims and accepted by Mai Dental as payment in full; however, if for some reason the insurance wholly rejected the claim, Paredes understood that she would be financially responsible. Paredes thereby “acquire[d] something without paying for it” (Gouskos, supra, 94 Cal.App.4th at p. 759) but with an understanding that it would have to be paid. Credit Consulting’s pleading in the collection action moreover supports this reading of the evidence by alleging that Paredes entered into a contract “on an open book account for money due.” The Civil Code defines a ” ‘book account’ ” in relevant part as “a detailed statement which constitutes the principal record of one or more transactions between a debtor and a creditor arising out of a contract or some fiduciary relation, and shows the debits and credits in connection therewith.” (Civ. Code, 337a.) “A book account is ‘open’ where a balance remains due on the account.” (Professional Collection Consultants v. Lauron (2017) 8 Cal.App.5th 958, 969.)  We conclude that Paredes met her burden, in opposing the anti-SLAPP motion, to demonstrate that her Rosenthal Act claim was based upon a ” ‘consumer credit transaction’ ” within the meaning of the statute. Having shown that the pleadings and evidence satisfied this aspect of her Rosenthal Act claim, we decide the trial court did not err in denying Credit Consulting’s anti-SLAPP motion on this ground.