In Basich v. Patenaude & Felix, APC, 2013 WL 1755484 (N.D.Cal. 2013), Judge Davila explained – and limited – the “continuing violation” exception to the FDCPA’s and Rosenthal Act’s statute of limitations, found no harassing conduct for merely calling a debtor after they said to stop, and refused to apply vicarious liability against a Creditor under the Rosenthal Act.
In order to escape this outcome, Plaintiff invokes the “continuing violation” doctrine. But the court is not persuaded that the doctrine applies to the facts presented here, which show a rather limited amount of contact and conduct over a period of five years. Indeed, it is only “[u]nder the appropriate circumstances … the continuing violation doctrine may apply to debt collection claims.” Joseph v. J.J. Mac Intyre Cos., 281 F.Supp.2d 1156, 1161 (N.D.Cal.2003). “The key is whether the conduct complained of constitutes a continuing pattern and course of conduct as opposed to unrelated discrete acts.” Id. An appropriate “continuing pattern” or “course of conduct,” like those described in the cases cited by Plaintiff,FN3 cannot be found based on these facts because P & F’s activities toward Plaintiff are more akin to discrete acts over an extended period of time.FN4 [FN3. In Cruz v. Int’l Collection Corp., No. C 08–991, 2008 U.S. Dist. LEXIS 55298, at *1–4, 2008 WL 2263800 (N.D. Cal. June 2, 2008), the collection activity consisted of several letters sent to the plaintiff from October, 2006, through February, 2007—a pe-riod of less than one year. The facts examined in Komarova v. Nat’l Credit Acceptance, Inc., 175 Cal.App. 4th 324 (2009), involve a similar, rather abbreviated period of time over which all collection activity occurred.] [FN4. At the same time, however, the court recognizes that conduct which occurred during the pre-limitations period may be admissible “to establish a foundation for other evidence.” Joseph, 281 F.Supp.2d at 1162.] ¶ Accordingly, the court finds that Defendants’ liability is limited by the one year statute of limitations applicable to claims under the FDCPA and the RFDCPA.
As to the contacts that occurred within the limitations period, the District Court found that the mere failure to stop calling after being told to stop was such that the “natural consequence” of those calls was to harass, oppress, or abuse.
As to the isolated contacts which occurred from September 2, 2010, through September 2, 2011, there is no evidence to support a finding that Defendants’ conduct was such that a “natural consequence” of it would have been harassment, oppression, or abuse. See 15 U.S.C. § 1692d. In fact, a review of the entire record from 2005 through 2010 compels the same conclusion because the evidence simply does not demonstrate that any of Defendants’ conduct was designed to harass, oppress or abuse Plaintiff. In contrast, the evidence shows that Defendants’ efforts to collect on the debt, although directed at the wrong person, were of an ordinary type, consisting of standard telephone calls and letters. As such, the court finds that Defendants have met their initial burden. ¶ For her part, Plaintiff argues that P & F’s operating policy, which she finds deficient in a number of aspects, constitutes a violation § 1692d. The court disagrees. While it is true that conduct covered by 1692d is not clearly defined, it is nonetheless clear that some “conduct fails to establish harassment as a matter of law.” Artega v. Asset Acceptance, LLC, 733 F.Supp.2d 1218, 1227 (E.D.Cal.2010). A debt collector may be liable for “immediately re-calling a debtor after a debtor has hung up the telephone [,]” or for “continuing to call the debtor after the debtor has requested that the debt collector cease and desist communication[,]” or for “calling a debtor outside of his or her home—by calling the debtor’s workplace or the homes of a debtor’s family and friends—or calling at inconvenient hours[.]” Id. at 1227–28. But a debt collector’s “single laugh” during a telephone conversation, a description of repayment as “urgent” and “time sensitive,” and a statement that they “were going to get their money one way or another, yelling that Georgia was a garnishable state, then hanging up,” have each been found not to violation 1692d as a matter of law. Id. at 1228–29. Here, the type of collection activities designated by P & F’s operating policy do not even approach the level of conduct found not to violate the statute. But more importantly, the evidence does not show that P & F’s policy was implemented against Plaintiff as a means of harassment.¶ There is evidence to support Plaintiff’s contention that P & F continued to place telephone calls to Plaintiff even after being told that she was not the debtor and after being told not to contact Plaintiff further. It is possible that this type of continued contact could, under certain circumstances, constitute a violation of § 1692d. But again, there is no evidence that P & F initiated any telephone calls during the limitations period. Moreover, the evidence does not demonstrate that either the character, content or the volume of the communications between P & F and Plaintiff would qualify as the type of conduct prohibited by the statute. . .
Finally, the Plaintiff had sued the Creditor under the Rosenthal Act. The District Court declined to impose vicarious liability on the Creditor under the Rosenthal Act, explaining:
Plaintiff argues that Capital One should be held vicariously liable under the RFDCPA for the specific acts undertaken by P & F in attempting to collect the debt. ¶ On this issue, the court finds persuasive the district court’s reasoning in Macros v. Moore Law Group, A.P.C., No. C–11–2406 MMC, 2012 U.S. Dist. LEXIS 17211, 2012 WL 359710 (N.D.Cal. Feb. 2, 2012). The Moore court recognized that while one can be held vicariously liable for the acts of its agent in California, a plaintiff seeking to impose vicarious liability must show that the person for whom the work is performed has the right to control the activities of the agent. Moore, 2012 U.S. Dist. LEXIS, at *21 (citing Garcia v. W & W Community Development, Inc., 186 Cal.App. 4th 1038, 1049 (2010); Fenton v. Freedman, 748 F.2d 1358, 1361–62 (9th Cir.1984)). The Moore court then concluded that the plaintiff in the case before it alleged “no facts to support a finding that Citibank, having entered into an agreement with Moore under which Moore would attempt to collect a debt assertedly owed by Makreas to Citibank, had the right to control the activities of Moore.” Id. at *22. ¶ Such is also the case here. Plaintiff has not presented any evidence to suggest that Capital One, in contracting with P & F to collect debts on its behalf, had the right to control P & F’s debt collection activities. That being the case, the court finds an absence of triable fact on this issue. Accordingly, Defendant’s motion for summary judgment will be granted as to Capital One’s vicarious liability, a result which excludes Capital One as a defendant in this action.