In Polk v. Legal Recovery Law Offices— F.R.D. —-, 2013 WL 3147728 (S.D.Cal. 2013), Judge Whelan refused to apply the Iqbal/Twombly pleading standard to affirmative defenses. Although Judge Whelan ultimately found the affirmative defense not adequately pleaded factually, Judge Whelan found that ‘good faith’ could be an affirmative defense to a Rosenthal Act claim — unlike the FDPCA.
A good faith defense fails as a matter of law with regard to the alleged FDCPA violation because the FDCPA is essentially a strict liability statute. See Clark v. Capital Credit & Collection Servs., 460 F.3d 1162, 1175 (9th Cir.2006) (stating that the FDCPA does not require that a violation of § 1692e be knowing or intentional). Moreover, a good faith defense fails as a matter of law with regard to the negligence claim because a plaintiff’s claim for negligence may stand irrespective of the defendant’s state of mind. See Restatement (Third) of Torts § 3 (2012).However, good faith may be a viable defense to the alleged violation of the California Civil Code because § 1788.15(a) states that “[n]o debt collector shall collect or attempt to collect a consumer debt by means of judicial proceedings when the debt collector knows that service of process, where essential to jurisdiction over the debtor or his property, has not been legally effected.” Cal. Civ.Code § 1788.15(a) (West 2009). Furthermore, Section 1788.30(b) allows for liability for additional damages besides actual damages where a debt collector violates the statute “willfully and knowingly.” Cal. Civ.Code § 1788.30(b) (West 2007).