In Valero v. Bryant, LaFayette and Associates, LLC, 2011 WL 1438436 (E.D.Cal. 2011), Judge Austin set forth parameters for recovery of emotional distress damages under the FDCPA/Rosenthal Act within the context of a default prove-up hearing.
This Court will apply the California IIED standard. See, Bolton v. Pentagroup Financial Services, LLC., 2009 WL 734038 at *10–11. Under California law, to prove a claim for IIED, a plaintiff must show: (1) extreme and outrageous conduct by the defendant; (2) extreme or severe emotional distress to the plaintiff; and (3) actual and proximate causation between the two. Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 1045, 90 Cal.Rptr.3d 453, Cal. App 6 Dist. (2009) citing Firestone Tire & Rubber Co., 6 Cal.4th 965, 1001, 25 Cal.Rptr.2d 550, 863 P.2d 795 (1993). ¶ To be outrageous, the defendant’s conduct must be either intentional or reckless, and it must be so extreme as to exceed all bounds of decency in a civilized community. Id. “Behavior may be considered outrageous if a defendant:(1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress, or (3) acts intentionally or unreasonably with the recognition that the actions are likely to result in illness through mental distress.” Kiseskey v. Carpenters’ Trust for So. California, 144 Cal.App.3d 222, 230, 192 Cal Rptr. 492 Cal.App. 2 Dist. (1983). Courts have long recognized in collection cases that the very nature of collection efforts often cause a debtor to suffer emotional distress. Bundren v. Superior Court, 145 Cal.App.3d 784, 193 Cal.Rptr. 671 (1983); Bowden v. Spiegel, 96 Cal.App.2d 793, 789 (1950). To be actionable as an IIED claim, the conduct must go beyond “all reasonable bounds of decency .” Bundren v. Superior Court, 145 Cal.App.3d at 789, 193 Cal.Rptr. 671. ¶ When considering whether a Plaintiff has suffered severe emotional distress, courts have noted that “complete emotional tranquility is seldom attainable in this world, and some degree of transient and trivial emotional distress is a part of the price of living among people. The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it. The intensity and duration of the distress are factors to be considered in determining its severity. It appears therefore, that in this context, severe emotional distress means, emotional distress of such substantial quantity or enduring quality that no reasonable man in a civilized society should be expected to endure it.” Fletcher v. Western National Life Ins. Co., 10 Cal.App.3d 376, 397, 89 Cal.Rptr. 78, Cal.App.4th Dist. (1970). Such injury may include all highly mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry and nausea. Golden v. Dungan 20 Cal.App.3d 295, 311, 97 Cal.Rptr. 577 (1971); Fletcher v. Western Life Ins., Co., 10 Cal.App.3d at 397, 89 Cal.Rptr. 78. ¶ There is no requirement under California law that a Plaintiff provide corroborating evidence in order to establish a claim for emotional distress. FN3 However, a damages award cannot be based solely on conjecture or speculation. There must be competent proof of emotional distress suffered by the Plaintiff. Austero v. Washington National Ins. Co. 132 Cal.App.3d 408, 417, 182 Cal.Rptr. 919, (1982) disapproved on another ground in Brandt v. Superior Court, 37 Cal.3d 813, 816–817, 210 Cal.Rptr. 211, 693 P.2d 796. (1985). Testimony of the plaintiff alone will suffice. Tan Jay International, Ltd. v. Canadian Indemnity Co. 198 Cal.App.3d 695, 708, 243 Cal.Rptr. 907 (1988); see also, Young v. Bank of America National Trust & Savings Assoc., 141 Cal.App.3d 108, 190 Cal.Rptr., 122 (1983) (Plaintiff’s testimony that she experienced embarrassment, shame, helplessness, nervousness, headaches, insomnia, and frustration because of bank’s failure to adjust her credit card was sufficient evidence warranting jury instruction on emotional distress damages). ¶ Based on Plaintiff’s testimony, the Court finds that she has met the state requirements of an IIED claim as Defendant’s conduct goes beyond all reasonable bounds of decency. Defendant engaged in outrageous conduct including making several telephone calls to Plaintiff, making inappropriate threats, and contacting Plaintiff’s family members. Defendant’s actions caused Plaintiff severe emotional distress resulting in anxiety and fear. ¶ However, an examination of the cases reveals that $15,000.00 is on the high end of the damages award spectrum as most district courts have awarded between $1,000 and $5,000 for similar conduct. See, Kajbos v. Maximum Recover Solutions, Inc., 2010 WL 2035788, at *3 (D.Ariz.2010) ($5,000 awarded in actual damages per plaintiff when plaintiff’s emotional distress and mental anguish re-sulted in a fear of answering the telephone, sleeplessness, feelings of hopelessness, pessimism, and nervousness which impacted jobs, personal relationships, and created marital instability.); Perkons v. American Acceptance, LLC., 2010 WL 4922916 (D.Ariz.2010) ($5,000 awarded in emotional distress damages when Plaintiff suffered stress, anxiety, sleeplessness, depression, and weight gain resulting in a heart condition and migraines) Baruch v. Healthcare Receivable Management, Inc., 2007 WL 3232090 (E.D.N.Y.2007) ($5,000 awarded when consumer received numerous threatening telephone calls and letters and as a result lost sleep, became depressed and suffered heart problems); Cooper v. Ellis Crosby & Assoc., Inc., 2007 WL 1322380 (D.Conn.2003) ($3,000 emotional distress damages when debt collector misrepresented he was an investigator from the bank, threatened to call Plaintiff’s boss and to subpoena Plaintiff’s hard drive on her computer); Gervais v. O’Connell, Harris & Assoc., Inc., 297 F.Supp.2d 435 (D.Conn.2003) ($1,500 emotional damages awarded when defendant withdrew $2,500 from debtor’s bank account and Plaintiff did not seek medical attention but was taking anxiety medication for condition unrelated to Defendant’s actions); Chiverton v. Fed. Finance Group Inc., 399 F.Supp.2d 96 (D.Conn.2005) (Damages of $5,000 awarded for consumer’s emotional distress under the FDCPA for debt collection practices that lasted over a period of several months which included repeated phone calls to consumer’s workplace, leading consumer to fear losing his job, as well as directly contacting consumer’s supervisor); Teng v. Metropolitan Retail Assoc., 851 F.Supp. 61 (E.D.N.Y.1994) ($1,000 awarded when debt collector called plaintiff’s place of employment several times, and obtained the phone number of plaintiff’s supervisor, and identified himself as a city marshal threatening to take away plaintiff’s furniture).¶ Plaintiff has cited Morisaki v. Davenport, Allen & Malone, Inc., 2010 WL 3341566 (E.D.Cal., 2010) for the proposition that Plaintiff is not required to establish a state IIED cause of action to receive actual damages under the FDCPA. In Morisaki, the plaintiff was awarded $75,000.00 after she was harassed by debt collectors over a period of several years and the debt collector contacted several co-workers and her employer about the debt. Morisaki v. Davenport, Allen & Malone, Inc., 2010 WL 3341566 at *6 . Here, Defendant’s actions were clearly violations of the FDCPA. However, the conduct only occurred over a two week period, plaintiff did not have direct contact with Defendant, nor did she need to seek treatment for her symptoms. Nevertheless she did suffer from stress, sleeplessness, anxiety, and a disruption in her personal relationships. After considering all of these factors, Court recommends that Plaintiff be awarded $5,000 in actual damages. [FN6. Moreover, this Court has awarded $25,000 in actual damages when Defendant’s conduct occurred over a short period of time but involved obtaining Plaintiff’s personal information, contacting family members, adding his name to Plaintiff’s T–Mobile account, and taking pictures of Plaintiff which resulted in exacerbating Plaintiff’s pre-existing health and psychological conditions. Hartung v. J.D. Byrider, Inc., 2009 WL 1876690 at *9–10 (E.D.Cal.2009).]
The pleaded facts demonstrating conduct that “exceeded all reasonable bounds of decency” were as follows:
According to the complaint, Defendant, a debt collector, unlawfully called Plaintiff several times regarding the collection of a debt. Specifically, on or around April 29, 2010, Defendant called Plaintiff and failed to identify itself as a debt collector. Instead, Defendant represented that it was calling about a “legal notice” and it had a file containing Plaintiff’s address history, social security number, date of birth, and known aliases. Defendant threatened to sell Plaintiff’s personal information at a public auction. ¶ On or about May 3, 2010, Defendant telephoned Plaintiff again and left a voice message. Defendant failed to identify itself as a debt collector, indicated that it had Plaintiff’s personal information, and threatened to sell the information at a public auction. ¶ On or about May 6, 2010, Defendant telephoned Plaintiff a third time and failed to identify itself as a debt collector. Defendant spoke to Plaintiff in a harassing, oppressive, intimidating, and/or abusive manner including laughing at Plaintiff. ¶ On or about May 14, 2010, Defendant telephoned Plaintiff’s brother, left a message about the debt, and falsely represented itself as a law firm. Plaintiff alleges that Defendant had neither the intent or the ability to sell Plaintiff’s personal information at a public auction, and that Defendant’s actions caused Plaintiff substantial anxiety and stress. Therefore, the allegations in complaint and Defendant’s default conclusively establish liability for violating the FDCPA.