In Masuda v. Citibank, N.A., — F.Supp.2d —-, 2014 WL 1759580 (N.D.Cal. 2014), Judge Hamilton allowed a Rosenthal Act and Intrusion on Seclusion claim to proceed by a third party who was not the debtor (but was alleged to be).

Citibank contends that the first cause of action fails to state a claim because Masuda has not alleged facts showing that he is a “debtor” and that Citibank is a “debt collector.”  ¶  First, Citibank argues that Masuda lacks standing to bring a cause of action under the Rosenthal Act because he is not a debtor. The Rosenthal Act defines a debtor as “a natural person from whom a debt collector seeks to collect a consumer debt which is due and owing or alleged to be due and owing from such person.” Cal. Civ.Code § 1788.2(h). Here, Masuda has standing to bring an action under the Rosenthal Act because he fits perfectly well into the second classification of debtor—those who are alleged to have a consumer debt due and owing.  ¶  Citibank points to two cases in which the Rosenthal Act has been interpreted as allowing only the person owing a debt to bring this action. Sanchez v. Client Servs., Inc., 520 F.Supp.2d 1149, 1155 n.3 (N.D.Cal.2007); People v. Persolve, LLC., 218 Cal.App. 4th, 1267, 1272 n.1 (2013). In both Sanchez and Persolve, however, the plaintiff lacked standing where it was not obligated or allegedly obligated to owe a debt to be collected by the defendant. Neither of these cases is similar to the circumstances here, where Masuda was alleged to owe a debt and Citibank sought to collect it.  ¶  Additionally, Masuda has stated a claim that Citibank “engage[d] in conduct the natural consequence of which is to harass, oppress, or abuse” in violation of the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692d. Federal judicial interpretations of the FDCPA are incorporated into the Rosenthal Act by Civil Code § 1788.17 such that a plaintiff may state a claim for violation of the Rosenthal Act simply by showing that a defendant violated any of several provisions of the FDCPA, 15 U.S.C. § 1692 et seq. See, Crockett v. Rash Curtis & Assocs., 929 F.Supp.2d 1030, 1033 (N.D.Cal.2013) (Alsup, J.).FN1 Masuda provided notice on multiple occasions and in multiple forms that it was calling the wrong number to collect its debt. Masuda’s allegation that Citibank called his cell phone over 300 times in spite of this knowledge raises a plausible inference that it intended to harass him in violation of Subsection 1692d(5). Thus, Masuda has standing to bring a claim under the Rosenthal Act.

The District Court allowed the intrusion on seclusion claim to proceed in the absence of offensive statements where the call volume was constant and occurred notwithstanding multiple requests that the calls stop and confirmation by Defendant that they would stop.

Citibank argues that Masuda fails to plead sufficient facts to support a claim for intrusion upon seclusion. An action for invasion of privacy by intrusion upon seclusion has two elements: (1) an intrusion into a private place, conversation, or matter, (2) in a manner highly offensive to a reasonable person. Taus v. Loftus, 40 Cal.4th 683, 725 (2007). Courts have held that repeated and continuous calls made in an attempt to collect a debt may give rise to a claim of intrusion upon seclusion. In Fausto v. Credigy Servs. Corp., 598 F.Supp.2d 1049 (N.D.Cal.2009), the court found that the plaintiffs had raised triable issues as to an invasion of privacy claim, based on allegations that the debt collector’s employees had made more than 90 calls to the debtors’ home; that the content of the calls had been harassing; and that the employees had failed to identify themselves when calling, and had allowed the phone to ring repeatedly and called back immediately after the debtors hung up the phone. Id. at 1056. In Joseph v. J.J. Mac Intyre Companies, 281 F.Supp.2d 1156 (N.D.Cal.2002), the court held that there were triable issues of fact as to whether the plaintiff’s privacy was invaded where the debt collector called the plaintiff over 200 times in the course of 19 months seeking to collect on a hospital debt. Id. at 1169.  Here, Masuda alleges that Citibank called him over 300 times. This includes calls nearly every day from April to November 2013, including many days with multiple calls (up to six per day). Although Masuda does not allege that the content of the calls was offensive, the context of the constant calls viewed in light of the multiple requests that the calls stop (and confirmation from Citibank that they would stop) and the fact that the calls were to a person confirmed to not be Citibank’s debtor, could be found by a reasonable jury to be highly offensive. In conclusion, Masuda has pled sufficient facts to state a claim for invasion of privacy by intrusion upon seclusion; he is not required to prove the allegation at this juncture.